Serving Northern St. Louis County, Minnesota

Charter commission rejects call to allow incompatible officeholding

Marshall Helmberger
Posted 4/4/18

TOWER—The city’s charter commission, on March 28, voted 6-1 against repeal of a provision that currently prohibits a member of the city council from simultaneously serving as fire chief, …

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Charter commission rejects call to allow incompatible officeholding

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TOWER—The city’s charter commission, on March 28, voted 6-1 against repeal of a provision that currently prohibits a member of the city council from simultaneously serving as fire chief, ambulance director or a similar position as head of a city department.

City ambulance supervisor and fire chief Steve Altenburg had sought the change to allow him to also serve as mayor, should he opt to run later this year. Altenburg had proposed to repeal Section 2.05 of the city of Tower’s charter in order to end the prohibition on members of the council from holding “incompatible offices,” as set forth in a number of attorney generals’ opinions dating back decades.

The section of the city charter expressly states that: “no member of the council shall hold any paid or unpaid department head position (i.e. Fire Chief, Ambulance Supervisor, etc.) or full-time position within the city of Tower.”

The provision does not prohibit Altenburg from running or being elected mayor or a member of the council, but he would need to resign his other positions were he to assume office.

Charter Commission member Dena Suikhonen motioned to open discussion of the issue, and said she had contacted the attorney general’s office and was provided some of the history of the provision. She said city officials had previously considered repeal of the provision back in the 1990s but were told by state officials that doing so would be illegal.

“It’s still against the law,” said Charter Commission chair Sheldon Majerle.

Altenburg argued otherwise, citing a law change that allowed the chief of an independent, non-profit firefighting organization to also serve as mayor of a statutory city.

But Majerle said neither of those conditions applied to Tower. “We’re a home rule city, not a statutory city,” he noted. And unlike an independent non-profit fire department, which would be governed by a separate board of directors, the Tower Fire Department is city-owned and managed, with the city council as the ultimate overseer.

Some of the commission members argued they didn’t have enough information to make such a change. “I don’t think we as a board of seven people should try to undermine what a board at the state level, with educated people and lawyers, has already done,” said commission member Randy Johnson.

“It is not illegal,” said Altenburg. “It’s not. They don’t not like it, but it’s not illegal.”

While it is true that no statute specifically bars the circumstance that Altenburg describes, court cases and attorney generals’ opinions have clarified that individuals cannot hold incompatible offices.

Attorney generals have concluded that the incompatibility arises in the case of a mayor or city council member who simultaneously serves as the fire chief, for example, since the city council maintains the supervisory authority over the fire chief and the department.

In the end, it’s a question of whether someone can adequately supervise themselves, according to former Minnesota Attorney General Warren Spannaus, who issued two legal opinions on the issue in the 1970s.

“Since the [council] supervises the discharge of the fire chief’s duties, one man serving in both capacities would encounter a conflict of public duties. This conflict requires the conclusion that the two offices are incompatible,” wrote Spannaus in a 1971 opinion.

Johnson sought to conclude the discussion. “I make a motion that we do not repeal this based on the information we’ve received from the state through Dena,” he said.

Altenburg challenged Johnson’s motion, stating that a motion had already been made by Suikhonen. Suikhonen’s motion, however, had been to discuss the matter, and nothing more.

Altenburg said no other motion was necessary, which prompted Johnson to withdraw his motion.

After more discussion, Majerle called for a roll call vote on the question. He said he was voting no on repeal, and all but Altenburg followed his lead, apparently ending the matter for now.

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