consultants are sandburs

Sunday, February 09, 2014

RAMSEY - FRANCHISE FEES -- Can a Charter modification have ex post facto reach; i.e., could a franchise fee charter amendment hypothetically passed by ballot at election time, negate an earlier passed council-legislated multi-year franchise fee arrangement?

A bloc on the Charter Commission appears to want, for reasons important to them, to force something to a ballot decision - which could serve GOTV purposes of one political party over another.

Not to say such a thing motivates, but it is a possibility given that those most inclined in the direction of the Niska Amendment as a potential ballot issue, include activist GOP inner party present or past recent functionaries. (E.g., here, here and here.)

Presumably, in the absence of clear evidence and in the best of worlds, the motivation of every charter commission member is simply an unbiased matter of judgment of what is in the city's best interest, with the roads being in need of upkeep being a given.

As a hypothetical, presume that pre-election Ramsey's elected council members by a required simple majority pass a multi-year franchise fee ordinance, so moving in light of Charter Commission indecision and or delay. (The last charter commission meeting passed no charter language in accord with or contrary to a draft the staff via the City Attorney had prepared, thus passing back to the council nothing new - nothing aimed at breaking the franchise fee question logjam without resort to manufacture of a ballot issue.)

So, what might the council do in light of such deliberate inaction?

It would be an interesting situation if the council loses patience over meanderings of the Charter Commission and tests the waters by acting.

Were the council to pass a multi-year ordinance on franchise fee usage, it could raise a question of first impression the resolution of which could write new precedence. It would be so if there exists no decided law on charter amendment prospective reach against the prospective reach of an ongoing budget ordinance.

As always, if there is no precedent and it is a question of first impression, who knows what a judge might say? On first hearing that judge can say whatever seems right, and reviewing judges can adopt or modify what basically would be a question of law - the facts being clear and not in dispute, under the hypothetical.

Litigating the question, if there is no existing precedent, would be a dice roll in the first instance and likely something going up on appeal to again be a dice roll there, (if and as long as a challenging party would willingly fund a challenge to elected leadership action, by multi-year ordinance, as not able to have a binding prospective reach, with such reach able instead to be forestalled by decision of independently appointed and not elected municipal functionaries and/or by an intervening ballot outcome).

It would be an interesting question of municipal charter law. (Of course, the legislature this session can amend charter legislation to resolve such a question in advance.)

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Please note, the hypothetical question is posed without any study of Charter-city vs statutory-city nuances of decided law. I.e, if there is precedent, which may be, it would be the stuff that City Attorneys might research and review, if ever the will and the patience of our council were to be inclined toward movement given ambiguities the most recent charter commission meeting left standing.

BOTTOM LINE: Ramsey's aging roads need upkeep, and that should be funded with the elected city officials clearly having the legislative function of saying how the funding is best arranged, in accord with existing proscriptions of law, of course.

Charter Commission members who are appointed by a judge arguably should recognize the difference of their mandate, in not facing any electorate to remain in office, and hence should show deference to that fact and its implications.

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