2020-11-12 Special Council Meeting agenda.docxCITY OF MENDOTA HEIGHTS
CANVASSING BOARD MEETING
November 12, 2020
2:45 pm
Mendota Heights City Hall
Council Chambers
1. Call to Order
2. Canvassing of Election Results
a. Approve Resolution 2020-70 Canvassing Results of the November 3,
2020 General Election
3. Accept the Resignation of Elizabeth Petschel from her position on the
Mendota Heights City Council, and Consider Temporary and Permanent
Replacement Options
4. Adjourn
DATE: November 12, 2020
TO: Mayor and City Council, City Administrator
FROM: Lorri Smith City Clerk
SUBJECT: Canvassing the Results of the November 3, 2020 General Election
INTRODUCTION
The City Council is asked to canvass the results of the November 3, 2020 General Election.
BACKGROUND
The City of Mendota Heights had an excellent voter turnout for the General Election held on
November 3rd. As of the close of the polls on November 3rd, there were a total of 8,801 voters
who cast their ballots. The breakdown of those ballots included 6,547 people submitting an
absentee ballot and 2,254 voters who voted on Election Day. This equals an approximate 95.5%
voting turnout for our city.
It should be noted that, through November 10th, the City is required to continue to accept ballots
that arrive in the mail with a November 3rd postmark date. These votes will be added to the totals.
At the meeting, staff will provide the City Council with an updated Resolution with the vote totals
included, and also the official Abstract of Votes Cast as compiled from the official returns.
RECOMMENDATION
If Council concurs, it should, by motion adopt RESOLUTION 2020 –70 CANVASSING THE
RETURNS OF THE NOVEMBER 3, 2020 GENERAL ELECTION.
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CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY, MINNESOTA
RESOLUTION 2020 - 70
A RESOLUTION CANVASSING RETURNS OF THE
NOVEMBER 3, 2020 GENERAL ELECTION
WHEREAS, the General Election was held on November 3, 2020, for the Office of
Mayor and for two seats for the Office of Council Member; and
WHEREAS, the City Council acts as the Election Canvassing Board in order to canvass
the results of the 2020 General Election; and
WHEREAS, on the 12th day of November, 2020, the City Council has met to canvass
said election results. The votes tabulated at said election were:
Mayor (Elect One)
Stephanie Levine _____
Liz Petschel _____
Patrick Watson _____
Write Ins _____
City Council (Elect Two)
Jay Miller _____
Joel Paper _____
Write Ins _____
NOW THEREFORE BE IT RESOLVED, by the Mendota Heights City Council that
the following persons are hereby declared to have been elected and qualify for the office of
Mayor and City Council Members in the General Election of November 3, 2020 as follows:
Mayor (2-year term)
Stephanie Levine
City Council (Each a 4-year term)
Jay Miller
Joel Paper
Adopted by the City Council of Mendota Heights this 12th day of November 2020.
Mendota Heights City Council
______________________________
Neil Garlock, Mayor
ATTEST:
___________________________
Lorri Smith, City Clerk
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M E M O R A N D U M
FROM: SHANA CONKLIN, ASSISTANT CITY ATTORNEY
DATE: NOVEMBER 6, 2020
RE: FILLING A VACANCY ON CITY COUNCIL
A councilmember has indicated that she wishes to resign from the Mendota Heights City Council
immediately. The councilmember will have two years and nearly two months left of her term
upon resignation. This Memorandum addresses the process to accept the resignation and fill the
vacancy on the Mendota Heights City Council.
1) Resignation Must be Made in Writing
Statute requires that resignations must be in writing and signed by the resigning council
member. Minn. Stat. § 351.01, subd. 1.
2) City Council Should Adopt a Resolution Declaring that a Vacancy Exists.
Then, the City Council should adopt a resolution declaring that a vacancy on the Council
exists by virtue of the councilmember’s resignation. Please see the resolution prepared. The
Minnesota Attorney General’s Office has opined that that Minnesota law does not require
that a written resignation be “received” by the council during a formal meeting in order to be
effective (see attached letter). The League of Minnesota Cities advises that if a resignation
cannot be timely received by the council it should at least be received by a city official that
regularly accepts documents on the City’s behalf.
3) City Council Must Appoint an Individual to Fill the Office For the Remainder of the
Unexpired Term.
City Council must appoint an individual to fill the councilmember position pursuant to Minn.
Stat. § 412.02, subd. 2a. The law does not set forth a specific process for this appointment.
The City should seek qualified and interested applicants for the appointment, and ultimately,
the City Council will vote on the appointment. In the event of a tie, the mayor shall make the
appointment. Minn. Stat. § 412.02, subd. 2a.
Due to the fact that the vacancy occurred “on or after the first day to file affidavits of
candidacy for the regular city election” for the year of 2020, there is no requirement to hold a
special election. Minn. Stat. § 412.02, subd. 2a. Thus, the appointed councilmember’s term
ends on December 31, 2022.
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CITY OF MENDOTA HEIGHTS
DAKOTA COUNTY, MINNESOTA
RESOLUTION 2020-76
A RESOLUTION ACCEPTING THE RESIGNATION
OF COUNCILMEMBER LIZ PETSCHEL
AND DECLARING A VACANCY ON THE CITY COUNCIL
WHEREAS, the Mendota Heights City Council has received the written resignation of
Councilmember Liz Petschel, effective immediately following the adjournment of the November
4, 2020, City Council meeting.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
MENDOTA HEIGHTS, MINNESOTA AS FOLLOWS:
1) The Council accepts Councilmember Liz Petschel’s resignation as described above.
2) The Council declares that a vacancy exists on the Council effective on November 12, 2020.
This resolution shall be effective immediately upon passage according to law.
Adopted by the City Council of Mendota Heights this 12th day of November 2020.
Mendota Heights City Council
______________________________
Neil Garlock, Mayor
ATTEST:
___________________________
Lorri Smith, City Clerk
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CANDIDACY ELIGIBILITY FORM
Instructions
All information on this form is available to the public.
Affirmation
For the office of City Councilmember, I swear (or affirm) that I have provided my true
name or the name by which I am generally known in the community. I also swear (or
affirm) that:
• I am eligible to vote in Minnesota;
• I have not filed for the same or any other office at the upcoming primary or general election
(except as provided in Minn. Stat. § 204B.06, subd. 1(2));
• I am, or will be on assuming office, 21 years of age or more;
• I will have maintained residence in this district for at least 30 days before the general election
(Note: To remain a councilmember, the individual must continue to maintain this residency);
• I do not have an impermissible conflict of interest to serve in this office; and
• I meet any other qualifications for this office prescribed by law.
Candidate Signature: _____________________________________________________
Date: _______________
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STATE OF MINNESOTA
.-.
•l\HKE lL-\TCH
AITOR."EY GENERAL
OFFICE OF THE ATTOR"';EY GENER\L
March 3,2003
515 PARK STREET
SFITE ZOO
ST.P>'\·L.~I"5510~-Z"16
TELEPHO"E:Ib51l Z97-21»O
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Mr.Thomas J.Radio
HINSHAW &CULBERTSON
Campbell Mithun Tower
222 South Ninth Street,Sniie 3100
Minneapolis,MN 55402
Vn FACSl\lJLE AND
U.S.l\I:\IL
•Re:Afton City Council V3c3ncy
Dear Mr.Radio:
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Thank you for your letter dated February 21,2003,requesting an Attorney General's
opinion with respect to the filling of a possible vacancy on the Afton City Council.
FACTS
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\Vith your letter you enclosed copIes of three documents which you state were never
received by the city from Councilmember Patrick Tiemey.The first is a brief signed.
handwritten statement dated February 7,2003,\Nhich reads as follows:
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"City of Afton,
1 must resign my seat as councilmember for Ward 1 for personal reasons.Please
accept this effective immediately.
Sincerely,
Pat Tierney"
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The second is a memo to "Afton City Council,Mayor and Staff,"dated February 9,2003,
signed by Mr.Tierney stating that,for personal reasons he has decided to "extend [his]leave of
absence"for at least 90.days,and asking that the vacancy be filled,pursuant to Minn.Stat.
§412.02,subd.2b.
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The third document is a signed typewritten letter to the "Honorable Mayor Charlie
Devine"dated February J 1,2003.In that letter,Mr.Tierney discusses the background of the
previous two documents and expresses concern that the citizens of \-Yard One might be
unrepresented if no one was appointed to fill a temporary vacancy.Therefore he states,"1
officially resign my position ...effective today,February J J,2003."He further requests the
Afton City Council to "unanimously endorse Nick Mucciacciaro as my replacement."
•You state that the City has received complaints concerning the Mayor,his wife and
property they own in Afton,allegim~violations of the Afton Zoning Code and Minn.Stat.~~~
§609.43.At a January 2003 Council meeting,the Mayor stepped down from the Council and
Facsimile:(651)297-1235·ITY:(65 I)282·2525 •Toll Free lines:(800)657-37fl,7 (Voice).(800)366.4812 (ITY I.W\\w.ag.state.mn.w;
An Equal 0ppor1unity Employer Who Values Diversity 0 Printed On 50';recycled paper (J 5C;-c post consumer content)•
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•Mr.Thomas J.Radio
March 3,2003
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•argued that the Council should either dismiss the compl:lint or investig::lte it on their own time.
The Council was deadlocked on how to resolve·the matter.The Afton City st3ff subsequently
provided a chronology of their understanding of the events to the Mayor and his wife for a
response..Resolution of the outstanding complaints wiII then be returned to the Council for
deliberation and discussion.Based upon these facts you ask:
•1.Is there a v~~ancy on the Afton City Council?
2.If a vacancy exists,when did it occur?
•3.How does state law prescribe filling the vacancy?
4.Can the City Council call a special election to provide an elected successor for the
position?
•5.Is the Mayor prohibited from Voting on a replacement in the event of 3 tie,
because of a conflict of interest arising from outstanding complaints Jgainst him
involving violation of the Afton Zoning Code Jnd Minn.Stat.§609.43?
Since the answers to thes·e questions depend upon factual determinations outside the
scope ofopinions of this Office,J we are unable to provide definitive answers to these questions.
•However,I believe that I can provide the following comments,which I hope you will find
helpful.
COMMENTS
•1.Existence of Vacanc}'
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First,the February 7,2003,request for "extended leave"pursuant to Minn.Stat.
§412.02,subd.2b has had no effect.The existence of a vacancy under that subdivision is not
based solely upon a request by the member,but requires a resolution of the council declaring a
vacancy.·It does not appear that the Council declared a vacancy after receiving that letter.
Second,Minn.Stat.§351.02 (2002)provides that an office becomes vacant upon the
resignation of the incumbent.With respect to resignations.Minn.Stat.§351.0 I (2002)provides,
in part:
Subdivision 1.To \Vhom l\Iade.Resignations shall be made in writing signed
by the resigning officer:
I See,Op.Atty.Gen.6293,May 9,1975.
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Mr.Thomas J.Radio
March 3,2003
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(1)By incumbents of eJective offices.to the officer authorized by law to fi II a
vacancy m such office by.appointment.or to order a special election to fiJI the
vacancy;
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Subd.2.\Vhen effective.Except as provided by subdivision 3 or other npress
provision of Jawor charter to the contrary.a resignation is effective \\hen it is
received by the officer.body.or board authorized to receiw it;
A vacancy in the counciJ of a statutory city is to be filled by appointment of council.pending
election of a successor.See l'vlinn.Stat.§412.02,subd~2a (2002).Thus.I'vlr.Tiemcy's \\Titlen
resignation would be effective,and a vacancy would be create~,when the resig.mtion is or \\;)s
received by the Council.Your Jetter states that the three documents in question were "received
by the city."However,it is not clear when each was received,or by whom.::?
Third,Minnesota I::1w does not require that a written resignation must be "receiwd"by
the council during a formal meeting in order to be effective.Contrary to the rule in some other
states,3 no formaJ action of acceptance or ackno\\:Jedgement by the counci I is required for an
unconditional resignation to taKe effect.Thus.there would appear to be no reason for the effect
of a city official's resignation to be delayed until the counciJ actually convenes.Especially in
communities where the council does not meet often,deJaying the effectiveness of a resignation
until the council convenes could unnecess;)rily delay the ability of the resigning member to
proceed with plans dependent upon the resignation.This conclusion is consistent with holdings
addressing similar issue~.See.STate,ex rei.PlifTIam v.Holm,l72l'vlinn.162,215 N.W.200
(1927)(holding that the govemor'sretum of a vetoed biIJ to the "house of origin"did not have to
take place when that house was in actual session);SeiferT v.City of Minneapolis,298 Minn.35,
213 N.W.2d 605 (1973)(notice of tOI1 claim served on council member was sufficient notice to
council):and RoberTs 1'.Village of ST.James,76 l'vlinn.456,79 N.W.2d 519 (1899)(notice of
claim against city may be sen'ed on clerk \\;hen council not in session).
Therefore,it appears that ~signed resignation as described in Minn.Stat.§351.01,would
take effect upon delivery to the councilor other official authorized by the council to receive
documents on its behalf.As noted above,the facts presented do not indicate to whom the
resignation letters were deliwred.or with what additional directions.Consequently.we are
unable to determine with ;)ny certainty the precise date upon which the vacancy has occurred.-l
2 The February 11,2003 letter does bear a stamped date of February 13,2003,with a handwritten
!!otation "received 3:15 p.m.:'and a signature which is not legible .
.'See,generally.56 Am.Jm.2d.l\llmicipal Corporations,§260,Op.Atty.Gen.359a-20,
August 17.1983,Minn.Stat.S 351.0 I.subd.2.
-'I The salutations in the February 7 and February II Jetters are to "City of Afton"and "Honorable
Mayor Devine,"respectively.It would seem,however,that correspondence to the "City"might
fairly be considered to be directed to the council,which is the body responsible for overall
(Footnote Continued on Next Page)
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•Mr.Thomas J.Radio
March 3,2003
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•2.The Filling of a Vacancy
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With respect to the process for filling a vacancy in a statutory city office.that process is
set forth in Minn.Stat.§412.02,subd.2a (2002),which states as follows:
Subd.2a.Vacancy.Except as othenl'iseprovided in subdivision 2b.a mcancy in
an office shall b~filled by council appointment until an election is held as
provided in this sllbdirision.In case of a tie vote in the council,the mayor shall
make the appointment.If the vacancy occurs before the first day to file affidavits
of candidacy for the next regular city election and more than two years remain in
the unexpired term,a special election shall be held at or before the next regular
city election and the appointed person shall serve until the qualification of a
successor elected at a special election to fiII the unexpired portion of the term.If
the vacancy occurs on or :::Ifter the fist day to file affidavits of candidacy for the
regular city election or when less than two years remain in the unexpired term,
there need not be :::I special election to fill the vacancy and the appointed person
sha))serve until the qU31ification of a successor.The cOllncil 171l1st specZfy by
ordinance llnder what circlImstances it will hold a special election TO jill {[
vacancy other than a special election held at the same Time as the regular ciry
eleCTion
(Emph:::lsis added).
Based on the above,the City Council is to fiJI the vacancy until an election is held.if
required in accordance with the above provisions and appropriate city ordin~:mces.
•3.The Mayor's Involvement
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\Vith respect to the Mayor's involvement in filling the vacancy,I am not aware of any
statutory provision that would prohibit the Mayor from voting on the appointment of a city
council member.5 In the absence of such a statute,Minnesota courts have held that there is no
settled rule disqualifying public offici31s from p3rticipating in official proceedings when they
have :::I personal interest in the outcome.See,Len::1'.Coon Creek Watershed DisT,278 Minn.,
(Footnote Continued From Previous Page)
management and governance of the City.Furthermore,it is clear from it contents that the
February 11 letter,at least,is directed to the council.
5 Minn.Stat.§lOA.07 (2002)does require abstention from voting in cel1ain circumstances by an
elected official of a "metropolitan government unit."The City of Afton does not appear to be
within that category,however..See Minn.Stat.§lOA.Ol,subd.24 (2002).Minn.Stat.
§§412.311 aJid 471.87 (2002)which address council member's conflicts of interest apply only to
contractual transactions.
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153 N.W.2d 209 (1967).Rather,each case must be decided on its own facts,taking into accollnt
factors such as:
(1)The nature of the·decision being made;(2)the nature of the pecuniary interest:
(3)the number of officials making the decision who are interested;(4)the need,if
any,to have interested persons make the decision;and (5)the other means
available,if any,s)1ch as the opportunity for review,that serve to insure that the
officials will not act arbitrarily to further their selfish interests.
!d.at 15,153 N.W.2d at 219.See,also,E.T.a.,Inc.v.Town ofMarion,375 N.\V.2d 815 (1985);
Rowell v.Board of Adjustment of City of Moorhead,446 N.W.2d 917 (Minn.Ct.App.1989);
Op.Atty.Gen 59a-32,September 11,1978.
Factual determinations such as thes~are outside the scope of the opinion function of this
Office.If after consideration of these factors,the Mayor does participate in selecting a person to
fill the council vacancy,persons aggrieved by that action would presumably have an opportunity
to challenge the action in court.
I hope this analysis is helpful to the City in addressing these matters.
v~~f,r~.ours;~#~/.vr-y4f,JfL
YLKENNETH E.RASCHKE,JR...•.
Assistant Attorney General
(651)297-1141
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STATUTORY CITY COUNCIL: VACANCY IN OFFICE: Person elected to fill remainder of
unexpired mayoral term may assume office upon receipt of certificate of election. Minn. Stat.
§ 412.02, subd. 2, 2a.
471-M
November 23, 1999
Patrick J. Kelly
Stephen Kelly
BANNIGAN & KELLY, P.A.
Maplewood City Attorneys
1750 North Central Life Tower
445 Minnesota Street
St. Paul, MN 55101-2132
Dear Messrs. Kelly:
In your letter you present substantially the following:
FACTS
In November 1997, A was re-elected at regular election to the position of
Mayor of Maplewood, a statutory city, for a 4 year term. Before taking the oath in
January of 1998, Mayor A was appointed District Court Judge and resigned.
Therefore a vacancy occurred in the position of Mayor. Pursuant to Minn. Stat.
§ 412.02, subd. 2a, the Council filled the vacancy by appointing Mayor B to the
pos1t10n. Because Mayor A resigned before January 1, 1998, the tenure of
Mayor B ran from January 1998 until qualification of a successor elected at the
next general election, held November 2, 1999. There was roughly 2 years left of
the original term of Mayor A.
You then ask substantially the following:
QUESTION
When a person is appointed to fill a vacancy in the office of mayor of a statutory
city, and an election is held to fill the unexpired term of that position, when does
the term of the appointed mayor end and the term of the mayor elected to fill the
unexpired term begin?
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DATE: November 12, 2020
TO: Mayor and City Council
FROM: Mark McNeill, City Administrator
SUBJECT: First City Council Meeting in January
Comment:
At the November 12'h City Council work session, we would like to poll the Council as to
whether it would be open to scheduling the first City Council meeting of 2021 to be on the
second Tuesday of the month(January 12Th) as opposed to the regular first Tuesday (January 5Ih).
The reason for the change would be, if approved, to allow an opportunity for staff to utilize more
accrued vacation time in the holiday week of December 28h through January I". With the
normal first Tuesday Council meeting, it requires more staff to come to City Hall during an
otherwise slow business cycle for the primary purpose of putting together the City Council
meeting packet. Moving the meeting to January 12'h would move that preparation to the first
week of January.
The 12'h would conflict with the regular Parks and Recreation meeting, and so that would have to
be accommodated—either by moving the Commission's meeting date, or delaying the
Commission starting time.
We would like an opportunity to discuss.
Mark McNeill
City Administrator