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 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 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.”
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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.”