Recall City Hall, Red Wing, Minn.

RED WING -- Despite the Committee to Recall City Hall’s work to collect signatures, city legal counsel is balking at calling a recall election.

The Committee to Recall City Hall formed in February after the firing of former police chief Roger Pohlman. The citizen group submitted a petition to the city stating that a recall election should be held in all seven wards due to Open Meeting Law violations. 

City attorney Amy Mace commented on the submitted petition during Monday’s meeting. 

“The city is aware of some correspondence in which citizens allege the recall is about other topics, but the recall petition, based on the language used in the recall, is only about alleged violations of open meetings. And I also want to note that no court has found that any member of the Red Wing City Council has violated the Open Meeting Law, that those are only allegations,” she said.

Mace later added, “Council members cannot be recalled on the basis that a citizen does not like how they voted on a particular issue. In Minnesota, the standard is malfeasance and nonfeasance, and that's what it says in the city charter and that is based on the Minnesota Constitution, which requires conduct to rise to the level of malfeasance or nonfeasance before an elected official can be recalled.”

Malfeasance

Malfeasance means illegal and wrongful conduct. Examples include felony convictions and bribery.

Mace explained that in the 1994 Minnesota Supreme Court case Claude v. Collins, the court found that members of the Hibbing City Council had violated the Open Meeting Law. However, even in finding that they had violated the Open Meeting Law, the court said that did not rise to the level of malfeasance. 

Nonfeasance 

Nonfeasance generally means neglect or refusal without sufficient excuse to do that which is the officer’s legal duty to do.

According to Mace, in Claude v. Collins, “the court found that for the constitutional removal of a public official under the Open Meeting Law, it must be established that there were three intentional, separate and unrelated violations of the law after the official had a reasonable amount of time to learn the responsibilities of the office.”

Mace added that the Minnesota Supreme Court found that there has to be three separate court actions on an elected official where the official is found to have violated the Open Meeting Law in order for the council member to be removed from the council.

In other words, a violation of the Open Meeting Law does not amount to nonfeasance unless there have been separate violations of the law proven in three separate court actions, in her view.

Mace concluded, “The statement on the petition is not sufficient to constitute nonfeasance because here, no court has found that any council member violated the Open Meeting Law, let alone three separate court actions.” 

City attorney recommendations 

The council has two options, according to Mace: call a special election or decline to call a special election. 

“Based on the court cases that I referenced earlier, the council may decide that the petition does not allege nonfeasance,” Mace said. “And the basis for that decision would be one, because there's no court finding that any council member has violated the Open Meeting Law, and thus the petition is based on allegations rather than any established violations, and two … there would need to be three court actions in which the court found three intentional violations of the Open Meeting Law for the council members to be subject to removal for nonfeasance.”

(1) comment

patricia allende de jung

Whether or not there is a recall of City Hall, there are some serious questions the City Council should answer :

What is the change in direction desired by the City Council with regard to local law enforcement?

In the absence of a clear and reasonable explanation of how and why the firing of the Chief of Police happened, how does the City Council gain the confidence and support of those who believe that it is not good for the City to lose an employee with an impeccable record of service?

What part was played by members of the Advisory Team regarding the City Council's decision to fire Roger Pohlman and change the direction of local law enforcement?

In a June 27 Dean Hove assured Chief Pohlman that he and the other representative from the police department would be included in every meeting, treated as equal valued team collaborators. This did not happen. Among other things, some of the most significant team meetings excluded the Police Chief//police rep. These meetings were held in private and were not videotaped.

Given these circumstances, how can the general public have confidence in the process being employed by the Advisory Team?

Does the City Council have any concern that one of the reasons given for the firing of the Chief of Police was 'a lack of trust' and that it was revealed in the Jan 23 City Council Workshop that the Advisory Team based their lack of trust for the police department --not on any facts --but on feelings related to their disappointment that a police officer they wanted to see fired was not?

Members of the Advisory Team have been tasked with evaluating each and every department in city government, to identify racist policies or practices. Does the City Council have any concerns that decisions or recommendations being made by the Advisory team may be influenced or based -not on facts- but subjective feelings and unrealistic expectations?

If in fact, as they told us, lack of trust was a factor in the firing of Chief Pohlman , then is the City Council not troubled by the fact this lack of trust was not actually based on or justified by facts, but was based on personal subjective feelings and unrealistic expectations?

How does the City Council assure current public employees and potential hires that they will not be evaluated or hired/fired due to recommendations and assessments of the Advisory Team, which may be based on the feelings or unrealistic expectations of members of the Advisory Team ?

The City hired Dominique Johnson, social justice warrior and a director of the Center for Equity Policing to facilitate the Advisory Team. Does the City Council support the policies and principles of the Center for Equity Policing as they are explained on their website?

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