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Proposed ordinance raises strong objections from Mayer firefighters
Nov. 29, 2010
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By Ivan Raconteur
Editor

MAYER, MN – The City of Mayer’s two newly-elected city council members did not wait for their terms to begin in January to weigh in on city policy, but jumped in with both feet during last Monday’s council meeting.

Erick Boder and Dan Lueth were elected Nov. 2 to four-year terms that will begin after they are sworn in Monday, Jan. 10.

Boder and Lueth, who are both members of the Mayer Fire Department, attended Monday’s city council meeting and strongly objected to a proposed ordinance that would affect them and all other part-time city employees.

Several other fire department members were also present during the meeting.

City Administrator Luayn Murphy explained that a new state law prevents full-time city employees from serving on city councils.

Murphy added that, during a workshop meeting in October, the city council discussed extending the state law to apply to part-time city employees, as well.

During Monday’s meeting, the council considered an ordinance that was drafted by the city attorney “to prevent potential conflicts of interest by prohibiting elected or appointed city officials from simultaneously serving as city employees.”

The proposed ordinance defines city employees as “any person who receives wages in any form from the City of Mayer, or any board, or part-time employees, including office staff, maintenance, and city fire department personnel.”

The proposed ordinance would not prohibit city employees from running for office or being elected. It would, however, require employees to resign from the employment if elected.

Boder said there are several “fundamental problems” with the proposed ordinance.

He said the timing of the proposed ordinance is “suspect” and questioned whether there was a connection between the ordinance and the fact that he and Lueth publicly opposed the referendum for park improvements that was on the Nov. 2 ballot.

He suggested that the proposed ordinance is a violation of the right to free speech.

Boder said 75 percent of the public voted for two firefighters, and added that there are better options than forcing people to choose between being members of the fire department and serving on the city council.

Lueth said he consulted two attorneys and was told the proposed ordinance presents issues regarding the freedom of speech.

Murphy said the city attorney contacted the League of Minnesota Cities when he researched the proposed ordinance.

Murphy said the proposed ordinance was not intended to be punitive to anyone elected in November, and if the proposed ordinance is approved, Boder and Lueth would have the option to serve the four-year terms to which they were elected.

They would then know that the ordinance was in effect if they chose to run for a second term.

Mayor Chris Capaul said one of the reasons behind the proposed ordinance was that the council needs a quorum to approve motions.

Council Member Tice Stieve-McPadden questioned what would happen in four years if another two firefighters were elected to the council.

“Then, we would have four people who were paid by the city on the council,” Stieve-McPadden said.

After the meeting, City Attorney Dave Hubert clarified how the abstentions might affect voting.

There are two factors that apply.

First, in order to conduct business, a quorum must be present. In Mayer, this means at least three of the five must be present.

Second, separate from the quorum question, in order to pass a motion, Hubert explained, a majority of those voting would have to vote in favor of it (members who are present are considered to be voting, whether they vote for or against the mortion, or abstain).

For example, if two council members abstain, and two of the remaining members vote in favor of a motion and one votes against, the motion would not pass because a majority of those voting did not vote in favor. In this example, three council members would have to vote in favor in order for the motion to pass.

Hubert said there are also certain specific cases where a super majority of four-fifths of the council must vote in favor in order for a motion to pass.

Therefore, if two of the five council members abstain, it would not be possible to pass a motion requiring a super majority, because four members must vote in favor of a motion in order for it to pass.

Capaul said that other jurisdictions have extended the law to include school board members, as well.

Boder challenged the notion that fire department members are part-time employees.

He said fire department members are not paid on the same structure as other employees, and suggested that if the council adopts the ordinance, it should be prepared for fire department members to ask for minimum wage.

Murphy said fire department members are covered by workers compensation, OSHA law, and, by definition of the state and federal governments, volunteer firefighters are considered part-time employees.

“I have faith in the electorate,” Lueth said. “Let them decide who they want on the city council.”

Stieve-McPadden asked what liability issues the city might face if it has three, four, or even two members of the fire department on the city council.

Capaul said he does not know why the state included different levels in the law, rather than having one uniform standard, but said the income limit for school board members is $8,000, and counties do not allow any employees to serve in elected offices.

Lueth said if the city is concerned about liability, it should be concerned about its liability if the proposed ordinance is approved, adding that one of the attorneys to which he spoke expressed enthusiasm about bringing a case to court if the proposed ordinance is adopted.

“That is the last thing I would do,” Lueth said, but added that the attorney said the proposed ordinance would have “a chilling effect on the freedom of speech.”

Stieve-McPadden stated that the proposed ordinance is “not an attack on the fire department.”

After a lengthy discussion, there was no motion to take any action on the proposed ordinance.

The council, by consensus, directed Murphy to research what other cities are doing regarding the new law.

Odds and ends

In other business, the council:

• adopted a resolution to assess $3,534 in unpaid utility bills to property taxes.

• approved hiring Abdo, Eick, & Meyers to perform the city’s annual audit for 2010, 2011, and 2012. The cost will remain the same for 2010 ($18,400), and will increase 2 percent for each subsequent year, for a total cost of $18,750 and $19,100, respectively.

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