Op. Atty. Gen. 59a-30 ( 1996 )

CITY OFFICERS: REMOVAL: City charter may not provide for removal of council
member by council. Grounds for removal of elected local official must amount to malfeasance
or nonfeasance in office. Minn. Const. art. VlII, §5; art. XII, §§ 3, 4. Minn. Stat.
§§ 351.02, 351.14, 410.07, 410.20.
59a-30
July 24, 1996
John B. Dean
Attomey at Law
Kennedy & Graven
470 Pillsbury Center
Minneapolis, MN 55402
Dear Mr. Dean:
In your letter to Attorney General Hubert H. Humphrey III you set forth substantially the
following:
FACTS
The City of Richfield operates under a home rule charter adopted in 1964.
Recently the Charter Commission submitted a proposed charter amendment
regarding council member attendance at regular council meetings If amended,
Section 2.05 of the charter would read, in relevant part, as follows:
Section 2.05 Vacancies. Subdivision l. Existence
(2) As soon as it is determined that a Council Member is
ineligible because of any of the following reasons: . . . (viiil
failure of a council member to attend six regular council meetings
during a six-month period which would constitute non-feasance in
office, the Council shall by resolution at a regular or special
council meeting, declare a vacancy on the Council to exist.
[Underlined material is the amendment proposed by the charter
commission].
John B. Dean
July 24, 1996
Page 2
You then ask substantially the following questions:
QUESTION ONE
Except in situations involving such matters as death, resignation or moving away of the
elected official, does the city have authority, through the proposed amendment, to provide for
removal from office, for any reason, without the vote of the electors of the city?
OPINION
Your question is answered in the negative.
The specific situations which you mention in your question are all considered to create
vacancies in elective office pursuant to Minn. Stat. § 351.02 (1994). These vacancies occur
upon the happening of the specific event directly related to the officer’s qualifications, ability,
or willingness to hold the office in question. While a governing body or other authority might
identify and declare the facts giving rise to these vacancies, for all practical purposes they
occur automatically and are not based upon any removal action. However, nowhere iii Minn.
Stat. § 351.02 is the city given the ultimate authority to declare a vacancy for any reason not
explicitly stated in the statute.
Minn. Stat. §351.02(3) does provide that an office becomes vacant upon the
incumbent’s "removal" from office, but does not set out the permissible grounds for removal
from any particular public office. Thus the authority and procedures for removal must be
found elsewhere iri statutes or charter. § Op. Atty. Gen. 475-h, April 30, 1985 (removal of
transit commission appointees limited to circumstances expressly listed in statute).
Article 8, § 5 of the Minnesota Constitution addresses the removal of "inferior“ officers.
It states:
The legislature of this state may provide for the removal of inferior
officers for malfeasance or nonfeasance in the performance of their duties.
This provision applies to elected municipal officials and has been interpreted to mean that such
officials cannot be removed except for malfeasance or nonfeasance in office. Svkes v. Citv of
John B. Dean
July 24, 1996
Page 3
Minneapolis, 124 Minn. 73, 77, 144 N.W. 453, 455 (1913). Thus, the legislature is given
broad power to provide for removal of elected local officials, so long as the basis therefor is
"malfeasance" or "nonfeasance" in office.1
There is no constitutional requirement that removal of elected officials be by the vote of
the electors. However, there does appear to be such a requirement in the state statutes
authorizing removal of elected officials pursuant to city charters
Article 12, section 3 of the Minnesota Constitution provides that "the legislature may
provide by law for the . . . organization . . . of local government units and their functions . . .
[and] for their elective and appointive officers . . Article 12, section 4 of th`e Minnesota
Constitution provides that any local government unit when authorized by law may adopt a
home rule charter city. 'l`his language allows the legislature to exercise control over the
actions of a home rule charter city. The legislature has specifically addressed the authority to
provide for removal of elected city officials by charter through the enactment of Minn. Stat.
§ 410.20 (1994), which provides in part:
[S]uch commission may also provide for the recall of any elective municipal
officer and for removal of the officer by vote of the electors of such city.
This language indicates that the charter commission has the authority to provide for the
"removal“ of elective officials only by the vote of the electors. However, there may be some
question as to whether the power to provide for "recall“ might permit some process for
removal without the vote of the electors.
We think it does not. While there appears no direct authority in Minnesota on the
meaning of the term "recall," examination of case law from other jurisdictions leads to the
1. Svl573 A.2d 756, 758 (Conn. App. Ct.
1990), the court defined "recall“ as "a procedure where an elected official may be removed at
any time during his term of office by a vote of the people. . . In Collins v. Morris, 263
Ga. 734, 735, 438 S.E.2d 896, 897 (Ga. 1994), "recall“ was defined as "a procedure whereby
it is the voter themselves who make the ultimate determination as to whether an official should
retain his office for the duration of the term to which he was elected." In Wallace v. Tripp,
358 Mich. 668,678, 101 N.W.2d 312, 314 (Mich. 1960), the court looked to the definition of
"recall“ in Webster’s New International Dictionary (2d Ed.) which defined "recall“ to be "the
right or procedure by which a public official . . . may be removed from office, before the end
of his term of office, by a vote of the people. . . ." The MB definition appears in §la®
Law Dictiona;v_, 1433 (6th Ed. 1990), along with the following derived from Jones v. Harlan,
109 S.W.Zd 251, 254 (Tex. Civ. App. 1937): "A method of removal of official in which
power of removal is either granted to or reserved by the people. "
Minn. Stat. §410.20 gives no indication that the term "recall“ is intended to have a
meaning other than that related to the removal procedure requiring the vote of the electors.
Thus, in our opinion, "recall," as set out in Minn. Stat. §410.20, requires the vote of the
electors.
Fuithermore, it is our view that the removal provisions set out in Minn. Stat. § 410.20
are the exclusive methods for removal of elected officials which a charter may provide. 'l`he
power of the legislature to provide for the removal of officers is exclusive pursuant to art. 8,
§5. State v. Essling, 268 Minn. 151, 128 N.W.Zd 307, 311 (Minn. 1964), citing §yke_sv_.
Citv of Minneapolis, 124 Minn. 73, 144 N.W. 453, 455, (Minn. 1913).2
2. Both cases cited to art. 13. § 2. the previous version of art. 8. § 5.
John B. Dean
July 24, 1996
Page 5
As the subject of removal of officers is within legislative control, where that body
prescribes a manner and method of removal, it is exclusive. Brandt v. Thompson, 91 Minn.
279, 97 N.W. 887 (1904). In this case, the legislature has prescribed a method of removing
elected officials in a horne rule charter city in Minn. Stat. § 410.20. Following the holding in
M, the removal of elected officials by the vote of the electors, as set out in Minn. Stat.
§ 410.20, Would be exclusive, and the proposed charter amendment would not be permissible
as it does not allow the electors to vote on the issue.
This conclusion finds further support under the doctrine of expressio unius §s_t exlusio
Miu_s Which provides that, in statutory interpretation, there is an inference that all omissions
should be understood as exclusions. Sutherland Stat. Const. §47.23 (5th Ed). A statute
which provides that a thing shall be done in a certain Way carries with it an implied prohibition
against doing that thing any other way. Sutherland Stat. Const. § 47.23 (5th Ed). In this case,'
it means that because Minn. Stat. § 410.20 allows for the removal of elected officials by the
vote of the electors, the presumption arises that this is the exclusive method of removal of
elected officials
QUEsTioN rwo
Must the reasons for removal of an elected city official pursuant to the charter amount to
malfeasance or nonfeasance as is required in art. 8, § 5 of the Minnesota Constitution?
OPINICN
Your question is answered in the affirmative
Minn. Stat. § 410.07 provides that the charter commission "may provide for any scheme
of municipal government not inconsistent with the constitution . . lf the charter provisions
are inconsistent with constitutional provisions. the constitutional provisions are controlling
Op. Atty. Gen. 63A-1, March 29, 1938. The legislature has complete power to remove an
elected official from office or to authorize such removal subject only to the limitations the
John B. Dean
July 24, 1996
Page 6
constitution may impose on the particular office. State v. Oehler, 218 Minn. 290, 16 N.W.2d
765 (1944). The prerequisites of removal are set out in art. 8, § 5 of the constitution which
provides that elective municipal officers may not be removed except for malfeasance or
nonfeasance iri office. Jacobsen v. Nagel, 255 Minn. 300, 304, 96 N.W.2d 569, 572 (1959).
The art. 8, § 5 limitations on the removal of public officials from office apply regardless of
whether those limitations are explicitly acknowledged in statutes providing for such removal.
Claude v. Collins, 518 N.W.2d 836, 842 (Minn. 1994). Thus it is our view that removal of
elected city officials pursuant to charter must be based upon malfeasance or nonfeasance in
office.
QUESTION THREE
If the standard of art. 8, §5 is applicable, does the city have authority, through the
proposed amendment, to determine for itself what " acts " automatically constitute nonfeasance?
OPINTON
We are not in a position to provide an absolute answer to your question. As noted
above, Minnesota statutes authorizing removal of elected city officials pursuant to the charter,
requires a vote of the electors Thus no act of the officer could, standing alone, result in
automatic removal for nonfeasance. § a_lsg, Op. Atty. Gen. 1926, No. 68, p. 75 (county
board had no authority to declare a vacancy in office of coroner due to nonfeasance of the
incumbent). Furthermore, while a charter could specify particular conduct which, as a matter
of law, would support removal of an elected official for nonfeasance, it does not appear that
the language of the proposed amendment is necessarily sufficient iri that regard. The proposed
language may be interpreted3 to say that missing six meetings in six months constitutes
nonfeasance ge_r § without regard to the reasons the meetings were missed
3. We do not generally undertake by way of opinions to construe provisions of local
charters See, Op. Atty. Gen. 629a, May 9, 1975.
John B. Dean
July 24, 1996
Page 7
Minn. Stat. § 351.14, subd. 3, which provides for removal of elected county officials,
defines "nonfeasance" as "the willful failure to perform a specific act which is a required part
of the duties of the public official." While that statute is not directly applicable to removal of
city officials, its definition is consistent with the general rule that nonfeasance is the failure to
do that which is the officer’s legal duty to do, without sufficient excuse. Jacobsen v. Nagel,
255 Minn. 300, 304, 96 N.W.2d 569, 573; Claude v. Collins, 518 N.W.2d 836, 842. This
principle would require a determination as to whether there was a valid reason to miss the
meetings or at a minimum an unrefuted assertion that no legitimate excuse has been presented
by the council member.
In Op. Atty. Gen. 450-A-11, March 6, 1957, we addressed a situation where the elected
county treasurer became ill and was absent from work for six months We found no authority
for holding that illness, even though protracted, constitutes non-feasance on the part of the
officer Warranting his removal from office. For similar reasons it is our view that the missing
of a number of meetings, standing alone, would not be held to constitute nonfeasance in office.
Very truly yours,
HUBERT H. HUMPHREY III
Attorney General
KENNETH E. RASCHKE, JR.
Assistant Attorney General