Legalectric

My Letter to the Editor about misguided and ill-advised Ordinance #115 is in the RW Republican Eagle (bEagle), it’s posted below because it’s not online yet.

UPDATE: Posted online — Ordinance is ‘solution’ looking for a problem

NOTE: ORDINANCE #115 TAKEN OFF DECEMBER 11 COUNCIL MEETING. WON’T BE HEARD UNTIL AFTER JANUARY COUNCIL ANNUAL WORKSHOP… if ever…

Here’s a previous post on the Ordinance and the Council meeting:

Ordinance #115 – disruptions at Council meetings?

Monday night, the Council took up Ordinance #115, triggered by the recent Minnesota Supreme Court’s Hensel decision. That decision held that the law defining conduct that “disturbs an assembly or meeting, not unlawful in its character” as disorderly conduct was unconstitutional, “a serious overbreadth problem.” Here, the City has decided to consider an ordinance of its own with language that puts the City on the wrong side of the law. Why would the City want to do this?

The discussion was good – I’m grateful members raised Constitutional issues, the 1^st Amendment, and its broad definitions. One said “We’d instructed staff after we got information,” the City Attorney had been instructed to draft the ordinance. “We were asked to address this.” By whom? It’s not gone through committee process. The packet’s item 9B was a memo from Roger Pohlman, Chief of Police, requesting a Motion to introduce the Ordinance.  Councilor Hove noted that there haven’t been disruptions for years, since back when the Council met upstairs! Others, including the City Attorney, noted that in addition to city policy, there is applicable law. Only part of the disorderly conduct statute (Minn. Stat. 609.72) was held unconstitutional, and parts remain, including “engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.”

Why use Council time on this non-issue, particularly where the City has policies in place regarding disruption? What was most concerning were Chief Pohlman’s reasons for requesting this ordinance.  First, he noted that police use of force practices limit what level of force may be used, and “if individual becomes passive, resistant” this ordinance was back up to use force to remove someone. He raised this issue of level of force twice. The other claimed justification was liability issues if someone claims injury when removed, that it’s “difficult to use policy to support our case.” This is an issue?

As Alan Muller was quoted in your article, “people disrupt meetings — people behave aggressively — when they feel that behaving politely and with restraint isn’t working.” Council President Biese cut off Muller’s statement just as he was finishing!  In my own experience, I’ve been shushed by Biese for objecting when my Ash Mining clients had no opportunity to speak before the Council approved that scheme. I’ve also been ordered removed from a St. Croix Falls/Taylors Falls joint Council meeting by then Mayor Lundgren for merely asking a question, raising a financial corruption issue, in a public comment period.  Lundgren was later charged and plead guilty to Theft and Misconduct in Office. Sometimes being heard requires standing up.

A primary outcome of the Red Wing Citizens Assembly was recognition that the City Council needs to be welcoming, transparent, that the Council must listen to citizens, and welcome public engagement. Ordinance #115 is a visible step in the opposite direction

Carol A. Overland

Also worth noting is the Editorial in the same paper, encouraging people to write — YES!

Column: Letters should make you question and think

Here it is:

17-410+Comments & Draft Site Permit

Now, get to work reading and doing a thorough mark-up!

UPDATE: ORDINANCE #115 TAKEN OFF DECEMBER 11 COUNCIL MEETING. WON’T BE HEARD UNTIL AFTER JANUARY COUNCIL ANNUAL WORKSHOP… if ever…

At Monday’s City Council meeting, a strange item, 9b, was on the agenda:

09B – Int Ord 115 – Enforcement of Rules of Order for Govt Meetings – CC 11

Here is the link to the video, two options:

CLICK HERE and scroll down to 9b and click for video

MP4 Video

How did this get on the agenda?  It didn’t go through committee…

Look at this discussion of the matter in minutes from previous meeting, September 25, 2017:

First, “City Attorney Amy Mace referenced a recent Minnesota Supreme Court decision that struck down part of the disorderly conduct statute.”  That would be the Hensel decision:

Hensel-OPA150005-091317

So let’s look at this order of events.  The City’s Rules of Order address disruption of a city meeting, long standing rules.  The Hensel decision comes down September 13, 2017.  The meeting minutes above are September 25, 2017.

Listen to that part of the 9/25 meeting HERE – MP4 (begins at ~ 58:56, goes to ~1:03.00).  Note the City Attorney’s focus on “anger” — behavior that would cause anger, and statements that the public/private aspect of the statute was problematic. That was not part of the rational that Minn. Stat. 609.72, Subd. 2 that was deemed unconstitutional:

(2) disturbs an assembly or meeting, not unlawful in its character; or

Again, the decision:

Hensel-OPA150005-091317

So between the time the Hensel decision is published and the Council meeting of the 25th, 13 days, the Red Wing Chief of Police goes to the Goodhue County Attorney about it, and that “[t]he County Attorney feels that, as long as these rules are in place, there would be a basis for someone to be removed from a council meeting if they do not stop their disruptive behavior when given an order by the Council President to do so.”  That means that someone discussed this with the City Attorney prior to the 9/25 meeting.  This discussion is begun by “Council President Kim Biese, who asked whether additional discussion is needed with regard to managing a disturbance during a public meeting. So there was some discussion between some parties prior to the meeting.   The City Attorney goes on to say, “the City Attorney’s Office is considering whether language should be added to the City Code to make this type of behavior a misdemeanor offense.”  On whose authority, initiative, direction is this “considering” occurring?   Biese knew of this, City Attorney knew of this, and Chief Pohlman went to the County Attorney about it before the ink was dry on the Hensel decision — and he was told, “no problem.” So why is this happening and on whose direction?   “Discussion” and “consideration” is ongoing despite advice that there is no problem, the City’s rules are sufficient per the County Attorney.

What’s Biese and Chief Pohlman’s concern? Why is City Attorney working on this, and why are we paying for it?

Makes no sense… and this is contrary to the recommendations of the Red Wing Citizens Assembly:

Red Wing Citizens Assembly Event Report

From the report:

And “Better  Public Meetings” was a key component:

Looking forward:

Not only is Ordinance #115 action for a problem that doesn’t exist, it is a step in the wrong direction, away from “Better Public Meetings” and instead hanging a threat over the heads of lawfully participating citizens.

Ordinance #115?  NO!

Ah, yes, it’s that time of year again… remember this map, way back when, connecting existing coal plants to the proposed CapX 2020 system? (note the Mid-American coal plant built in 2007 over by Council Bluffs isn’t there, it’s at the green lines on the southwest side where transmission starts.)

It’s the Power Plant Siting Act Annual Hearing!

Here’s the full notice:

2017_Docket 17-18_Notice_201711-137509-01

And going back in history:

Everybody, get out your HERC Hanky and wave it for the home team!!!

Last Thursday was a fairly short, but quite intense, day at the Public Utilities Commission.  First up was Freeborn Wind (go here and search for docket 17-332), and its application for a transmission line for the project plus more.  We did get the “proceeding” process and not a summary report. That’s good, not a huge deal, but enough that it means we get some extra process in the transmission routing docket, meaning an ALJ drafted Findings, Conclusions, and Recommendation (not just a report), and the opportunity to file Exceptions to the ALJ Recommendation. In those exceptions, we can also ask for public comment and oral argument to the Commission.

Second on the agenda was the HERC Power Purchase Agreement, and Xcel Energy’s HERC PPA Petition to cut the rate (go here and search for docket 17-532).

Bottom line, after much deliberation, and a 10 minute break (what is it they do back there???), here’s the decision option they chose, as framed in the Staff Briefing Papers_201711-137262-01:

Way to go, Mr. Alan Muller!

Seems to me that but for our squwaking, it would have eased on through.  But the question remains, where were all the folks who supposedly had committed to shut down HERC?

Primary documents were posted earlier here:

• HERC at PUC on Thursday
• HERC — from Muller, in the Daily Planet
• NAB Petitions to Intervene in the HERC Docket
• Due TODAY — Comments on HERC
• Comment period on HERC PPA Amendment