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HomeMy WebLinkAbout2014-05-14 PACKET 05.06.Presented by Kori Land, City Attorney LeVander, Gillen & Miller, PA. Discussion Items  Conflicts of Interest  Meetings  Data Practices Act  Public Hearings  Difficult Constituents  Social Media  Minn. Stat. §471.87 You cannot have a or directindirect  or interest in personalfinancialany matter upon which you have the authority to make a decision. Any contract made in violation of the  conflict of interest law is void. What does that really mean?  The Council cannot enter into a contract • where one member has a conflict of interest Unless:  The Council member has no ownership in the  company The Council member is not an officer or a director  The Council member does not receive commissions or  bonuses The Council member will not supervise the  performance of the contract : Example  Your family business is the lowest bidder on a • City contract. Can the City enter into the contract? Do you have an ownership in the company  Are you an officer or a director  Do you receive commissions or bonuses  Will you supervise the performance of the contract  If the answer is Yes to any of these questions, City cannot enter into the contract What about non-contractualactions?  Zoning decisions • Removal from office • Licensing • Council member with a conflict of interest in non-  contractual actions may be disqualified from voting but Council may still take action. Steps for conflicted Council member in a non-  contractual action: Disclose the conflict • Do not participate in the discussion or the vote • Leave the room • Example:  You have a contract to do construction work for • someone seeking a Conditional Use Permit. Without the CUP, you will not get the work. Can the Council approve the CUP? Yes, but the Council member must: • Disclose the conflict • Not participate in the discussion or the vote • Leave the room • The Gift Law: Minn. Stat. §471.895 cannot accept from Local Officialsgifts interested persons. = City or County elected or Local Official  appointed officer (broad definition that could include City employees) = Money, personal property, real Gift  property, service, loan, forgiveness of debt = Anyone living or Interested Person  doing business in the City who is or could be impacted by a decision Exceptions:  Campaign contributions • Plaque • Trinket or item costing $5 or less • Food or beverage at a reception or meeting • where the local official is giving a speech or answering questions Gifts between family members • Examples Attending a neighborhood barbeque.  Bring a dish to share  Receiving a Christmas basket from a business in  town that you frequently use. Give them one in return  Receiving an Elected Official Discount Coupon  for the Grand Opening of a new restaurant (unless less than $5 value) Pay full price  Invitation to attend a charity luncheon for free.  Make a presentation, answer questions or pay for the  meal General Rule : (Minn. Stat. §13D.01) All meetings are open to the public Inside the room meetings  Outside the room meetings  Insidethe Room Meetings Notice of date, time, location, agenda is • posted If Public Hearing, notice is published in the • paper and for zoning matters, property owners within 500 feet are mailed notice If Special Meeting, 3 days notice is required • Outsidethe Room Meetings “Meeting” ( Not defined in the Open Meeting Law) Defined in case law: A quorum of the body; • Discusses, decides, or receives information as a • group; and Information is related to official business • Email  Too many members involved results in a • quorum; Message is received by the group; • Message contains information related to • official business. IPAD Opinion 09-020 Background:  Metro Gang Strike Force (MGSF) was operated by a Joint Powers Board that consisted of 13 Board members made up of law enforcement agencies around the metro area (Mpls., St. Paul, Ramsey County, Henn. County, Brooklyn Park, etc.) with the goal of addressing increase in gangs and gang violence A reporter from the Star Tribune contacted the MGSF Asst. Commander asking for his input on an editorial column she was writing for the newspaper The Asst. Commander panicked because the column was not flattering One of the Board member’s prepared a press release to counteract the reporter’s article, which he circulated by email to all of the Board members, seeking their feedback 7 of the Board members commented by hitting “Reply All” There are 13 Board members Question Presented to IPAD:  Did members of the Advisory Board for the Strike Force comply with the Open Meeting Law when they exchanged certain email messages relating to the activities of the Strike Force? “Meeting” A quorum of the body • Discusses, decides, or receives information as a • group; and Information is related to official business • IPAD decided:  A quorum of the Board expressed an opinion • about the matter (7 of 13 responded) The matter was discussed and received by • the group (all were sent the email) The matter was characterized as “a matter of • high importance” in the emails(official business) “[T]he conduct of the Advisory Board constituted a meeting, which was required to be public, and as such, is impermissible under the OML...” Lessons Learned:  Email should be used as follows: • To receive information from the City (one-way  communication) or Between2membersoftheCouncilonly,without  forwardingorcopyingothermembersofthe Council Penalties  $300 for each occurrence & attorney’s • fees (up to $13,000) Removal from office for 3 or more • violations Minn. Stat. Ch. 13 Minn. Stat. Chapter 13  GENERAL RULE: All datais public unless it fits under an exception. = All data collected, created, Data  received, maintained or disseminated by the City, regardless of its physical form, storage media or conditions of use. Examples: • Documents  Audio tapes  Video tapes  Computer storage media (CDs, external drives)  E-mails  Computer hard-drives  Text messages  Twitter Accounts  Instant Messages  Cell phone records  All cities are required to have a Responsible  Authority and a Compliance Officer to administer the Act. When someone asks you for data, refer all  people to the Responsible Authority (City Clerk). DO NOTprovide the data yourself. Areas of caution: Property Complainant Data • Personnel Data • Law Enforcement Data • Property Complainant Data is protected non-public • data Personnel data • Most personnel data is non-public data and only available  need to those who to have access Refer all requests to HR Director  Law Enforcement Data • Very factually-dependent based on the information  contained in the police reports Refer all requests to Police Department  What Kinds of Matters Require a Public Hearing? Most planning applications • Ordering a public improvement project • Adopting Assessments • Liquor licenses • Other • Why is a Public Hearing Important?  Due Process: • Notice  Testimony  The Record  Why is Due Process important?  th 14Amendment to the US Constitution • Art. 1 Section 7 of the MN Constitution • Gives people an opportunity to present their • case when a property interest is at stake Hoyt et. al. v. City of Minneapolis  Planningapplicationsforamixedusetowerand2 • townhousestructuresintheLoringHill neighborhood CUPforincreasedheight  CUPforincreasednumberofunits  Variancetoreducethesideyardsetbackfrom48ft.to16ft.  Variancetoreducetherearyardsetbackfrom45ft.to19ft.  Majorsiteplanreview  Planning Commission denied all  applications Developer appealed to the City Council  PC’s decision was reviewed by the Council’s  Zoning and Planning Committee (5 Council members) who recommended denial CC upheld the PC’s decision to deny the  applications Developer sued claiming they were denied  their right to a fair hearing (Due Process) At trial, the Developer introduced copies of • emails from one Council member to various constituents, in which she made the following statements: “I am not supportive of a high-rise”  “I have already come out against the height of the project”  “I … will continue to represent the many voices in  opposition to the project” “I will do my best to advocate against the appeal in  committee” “[P]leasedonotbespreadingtheword thatIhavemadeupmymindandam workingtoopposethevarianceonthis project.Ifthedeveloperhearsthisthey willrightfullyquestionthattheydidn’tget afairhearingwithmeandthatImadeup mymindpriortothepublichearing.” What did the District Court decide?  TheCouncilmembertookapositionin • oppositiontotheapplicationsandexhibited aclosedmindpriortothepublichearing. Thiswasaviolationofthedeveloper’s federalconstitutionalrighttodueprocess. Lessons learned:  Youcannotmakeupyourmindpriortothe • publichearing(mustbeopentotheevidence presentedatthepublichearing) Youcannotadvocatefororagainstamatterfor • whichtherewillbeapublichearing Youmustremainanimpartialdecision-maker • The Modern Day Elected Official https://www.facebook.com/ Dangers of Facebook  OML violations • DPA • Public Hearing violations • Promises, admissions made in public forum • You are violating the OML on FB if:  You are “friends” on FB with a quorum of City • Council members; and 3of you discuss, post, or opine about official • business that has come or may come before the Council for a decision Q: What if I just want to agree with something someone else posted on their FB page? A: Any response may violate the Open Meeting Law because you do not know how many other Council members are reading the post. One response is probably not a violation. Two responses is likely a violation. You might be violating a public hearing  process Due Process requires that you have not made up • your mind prior to a hearing You cannot advocate for a position prior to a • hearing You must remain an impartial decision-maker • Q: What if I want to provide information to the public about what the Council is considering or what we decided? I like to keep the public informed. A: You are not the public relations committee. Reasons notto be the first to announce  information to the public: You might be wrong (or not exactly right) • If the matter is pending, you cannot speak on behalf • of the Council. (i.e. “Don’t worry. Your application will be a slam dunk.”) As one member, you have no power. Together, you have all the power. More Reasons notto be the first to announce information to the public: Plans change • It might not be “public” yet and the • announcement might be harmful to negotiations Everything you post on FB is subject to  the DPA OML violations • Admissions of “mistakes” by City or Staff • Promises to “fix” situations • Advocating for or against a pending application • Everything you say can and will be used  against you in a court of law NUISANCES Animals Noise Odors Snowplowing PROBLEM PROPERTIES Vacant Buildings Weeds Trash Excess vehicles Junk TAXES Street Improvements Street Assessments Public Facilities (Ice Arena, Public Pool, Parks) How to Address the Public’s Concerns 1. Is this a publicor a privateproblem? If private, then not a City problem (trees, boundary  lines) If public, go to #2  2. Identify the area of concern by department Public Safety (criminal, traffic, fire, EMS)  Public Works (streets, sidewalks, sewer/water)  Community Development (neighborhood, land use,  planning applications, building permits) Economic Development (business)  Finance (assessments)  Parks & Rec. (Ice Arena, basketball hoops, softball)  3. Refer them to the appropriate Dept. or City Administrator General Rules: City Administrator is the default  depository for all complaints. Do not try to solve the problem yourself.  There are two sides to every story.  Sometimes people are just nosy but don’t  really need to know (i.e. “Why were there 2 squad cars at that business last night?”) You don’t wear a cape 