consultants are sandburs

Saturday, October 26, 2013

RAMSEY FRANCHISE FEES - With a joint work session contemplated involving Charter Commission and Council, a good-faith settlement of differences is likely.

Nobody should want to drag this out. It already has been pending, the thought of a franchise fee for road grid upkeep, since the prior council's thinking that way, last year. Both city bodies are intent on reaching a meeting of minds, which should be feasible unless a take-no-prisoners or make-political-hay attitude arises somewhere in the process.

First a curiosity. On looking at the wording of the pending Charter Commission's amendment to our Charter, it would mandate franchise fees only to "defray increased municipal costs accruing as a result of utility operations," and not as a means of raising general revenue. Whatever that quoted language means, it is wording lifted verbatim from the second sentence of Minn. Stat. Sect. 216B.36. If there is any judicial precedent interpreting the meaning and limitations of that wording, I am unaware of it.

An argument can be made, even if somewhat tenuous, that the cryptic language permits what the council already contemplates, in that the city's road grid and the utility power distribution grid are generally contiguous, and that utility vehicles need from time to time (for "utility operations" purposes) to access the utility grid via the roads, which is made a more difficult thing if road repair and upkeep were abandoned or materially curtailed.

There is that tenuous nexus, and would such an argument merit a strict scrutiny review standard, or an "any reasonableness standard regarding exercise of inherent government police powers" standard, or something between, if such a proposition were to be reviewed by a court? (UPDATE - Municipal charters have, by some, been likened to being "constitutional" in intent and purpose, so that a question of standard of review applied to constitutional issues is not wholly off base. Nuances can be argued, but "standard of review" thinking is not without merit in anticipating possible litigation under municipal charters in Minnesota.)

A hypothetical, yes, but an impasse now instead of conciliatory attitudes going forward could come to that if some party/person were keen enough to spend to go to court over such a thing in the event such a fact situation were to arise. Until a judge says no, the council can act as it sees fit, so in the absence of some challenge such a course of events, were it to happen, would survive. A council vote in advance of voting on the Charter Commission's proposal, on how it should read the uncertain statutory language, could precede a vote on the amendment proposal, with the interpretive issue requiring a majority, and the amendment's passage afterward and with that official caveat, needing unanimity of all seven council members. If at least one council member would not vote for the amendment in light of a prior interpretative resolution of council, were that to happen, the amendment would fail before the council.

The politics of any such hypothetical, if coming to pass, would be interesting to observe; but all should be hoping in good faith that something less confrontational and uncertain would be reached by consensus involving the two civic bodies working in concert and in good faith, with politics and political dimensions put aside as part of what good faith in the situation would demand.

It seems the mood of consensus is that everyone should be satisfied if the city uses the franchise fee now for admitted road needs, without changing horses mid-stream, without increase of scope or amounts, and does not go to the franchise fee "well" too often [last use having been roughly a decade ago for a very short period to cover a revenue shortfall instead of going to the money market per Charter (Sec. 7.12. - Emergency debt certificates.)]. And that such a consensus would not waver if such protections into the future were somehow sensibly incorporated into Charter Ch. 10 (or Ch. 7) restrictive language.

At present, no joint work session date has been set, but the last televised council meeting where Charter Commission Chairman Joe Field testified left the impression that such a step is imminent. My understanding is that even after QCTV ceases to have meeting streaming video of regular council sessions online, it archives a DVD or other permanent retained video record. Work sessions are not so archived, nor is much else televised aside from Planning Commission and, curiously, park board meetings. Whether that additional broadcast content is archived by QCTV is unknown to me.

Readers can check the currently available online streaming video to see for themselves the spirit of cooperation apparent to me, subjectively, at that last televised council meeting.

No comments: