Councilmember Ward Residency Requirement

Pursuant to City Charter Section 2.5 Councilmembers are required to reside in the City and if elected from a ward, per Charter Section 2.3, "...shall be a resident of the ward,...".  Councilmember Jeffrey was elected from Ward Four but currently does not reside in Ward Four.

 

The issue then is whether or not a vacancy exists on the Council.  City Charter Section 2.5 Vacancies provides as follows on determining a Council vacancy:

 

A vacancy in the council, whether it be in the office of mayor or councilmember, shall be deemed to exist in the case of the failure of any person elected thereto to qualify, or by reason of the death, resignation in writing filed with the city clerk, removal from office, non-residence in the city, conviction of a felony of any such person after his/her election, or by reason of the failure of any councilmember without good cause to attend council meetings for a period of three consecutive months.   In each such case, the council shall, by resolution, declare the vacancy to exist and such vacancy shall be filled according to the provisions of section 4.5.

 

The question then remains how is residency determined?  Minn. Stat. §200.31 provides that "residency" is determined based on a list of principles that may be applicable to the facts of each case.  Attached is a League of Minnesota Cities' memo on the subject which defines residence based on Minn. Stat. §200.31.

 

Therefore, the City Council needs to make a determination based on evidence presented whether or not a vacancy on the City Council exists.  The City Council procedure for making such a determination is to schedule a hearing at which time the affected councilmember can present testimony/evidence as to his ward residency status and the City can also present relevant testimony/evidence.  Witnesses presenting testimony may be cross examined by the parties.  One important responsibility of the City is to insure due process is given including reasonable prior notice of the hearing and its purpose.  The City Council may want to consider having the hearing before a State of Minnesota Administrative Law Judge to insure there is no question about the fairness in the hearing process.  A hearing examiner would draft Findings of Fact and give the City Council a recommended conclusion.  The City Council would of course be able to accept or reject the Administrative Law Judge's conclusion.

 

If the City Council ultimately determines a vacancy does exist, City Charter Section 4.5 "Vacancy of municipal elected office" requires that if 365 days or more remain in the term of the office, as in the present case, there shall be a special election held within 90 days after the vacancy occurs in order to elect a successor to serve the remainder of the term.

 

If the City Council determines to proceed with a formal hearing on City Councilmember Jeffrey's ward residency status, the City will need to determine the hearing date and whether or not the City Council wants to hold the hearing or retain the services of a State of Minnesota Hearing Examiner.

 

I am asking City Councilmember Jeffrey to share with the City Council at this work session, in a preliminary form, any evidence he may wish to present or discuss which is relevant on his Ward Four residency status.  Based on what is presented, the City Council may determine the formal hearing process described above is not necessary as a "vacancy" on the Council has not occurred.  However, as of this writing, City Councilmember Jeffrey and I have not spoken about this request.

Staff recommends that the Council review the information presented and direct staff. 

No funding required for the review of this case.  Costs would be incurred for a hearing examiner or potential special election. 

Based on discussion.