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. Svl