Legalectric

Last night’s meeting was disappointing. No action on the Recall legal action. And few showed up. Not what I was expecting!

On the other hand, Mayor Wilson wanted Kent Laugen, who has been actively involved in the Recall effort, to be appointed to the Port Authority. As with his attempted appointment of Janie Farrar, another Recall proponent, that Laugen appointment motion failed for a second.

Here’s the missive I sent to the City Council yesterday:

Overland Comment on Recall Petition to City Council today

And here’s the Petition that was filed on Friday:

Frivolous Recall Lawsuit Filed

In the Rochester Post Bulletin, linked, about the Recall City Hall lawsuit:

Red Wing recall takes next big step with lawsuit

Suit seeks remedy for city council not approving special recall election after group gathered the required signatures.

Written By: Brian Todd | 9:08 am, Aug. 10, 2021

RED WING — Late Friday afternoon, the Recall City Hall committee in Red Wing took the next step in its efforts to bring six members of the city council to a special election.

The lawsuit, filed on behalf of Red Wing residents George Hintz, Peter Lang, Judith Kjome, Stephen Lind, Betty Kalember and Sheryl Voth, asks the 1st District Court “for correction of a deliberate ballot omission or, alternatively, for a Writ of Mandamus directing the City of Red Wing to hold an election for the recall of six city councilmembers in accordance with the strictures of the municipal charter.”

The petition points to what it calls several undisputed facts. They include that in each ward or wards at least 20 percent of registered voters signed petitions to recall council members Becky Norton, Evan Brown, Erin Buss, Andy Klitzke, Dean Hove and Laurel Stinson. However, the city council voted 6-1 – with all six council members up for recall voting no, and council member Kim Beise voting yes – on multiple occasions not to hold a special election.

In the petition, Greg Joseph, a Waconia, Minn.-based attorney representing the recall group, notes how the Red Wing City Charter states, “the clerical officer shall transmit it to the Council without delay and shall also officially notify the person sought to be recalled of the sufficiency of the petition and of the pending action. The Council shall, at its next meeting, by resolution provide for filing dates and other provisions necessary for the holding of a special recall election not less than 45 nor more than 60 days after such meeting.”

Joseph said it’s that directive to order an election that the city council has rejected, and that is the reason for the lawsuit.

However, not every resident of Red Wing sees it the same way.

Carol Overland, a local attorney who has expressed her support for the city council and its actions, said the public does not have a legal right to a recall election, and a firm case of malfeasance or nonfeasance – the justification for a recall – is absent in the recall effort.

[Original – since corrected: The idea that the petitioners who ran the recall efforts could determine what meets the legal definition of malfeasance or nonfeasance, she said, is absurd.] [Correction, I said “voters” because that’s what they’re arguing, that the voters should decide in an election whether there’s been malfeasance or nonfeasance, so insert “voters” here — it’s fixed now.]

The idea that the voters could determine what meets the legal definition of malfeasance or nonfeasance, she said, is absurd.

Council President Becky Norton agrees.

“The (Red Wing City) Charter and the Minnesota Constitution are clear that elected officials can only be recalled for malfeasance or nonfeasance,” Norton wrote in response to questions from the Post Bulletin. Norton went on to cite a case from 1959, Jacobsen v. Nagel. “The Minnesota Supreme Court has held that the same malfeasance and nonfeasance standard that applies to state officials applies to council members of a charter city.”

If the conduct of the council members does not constitute malfeasance or nonfeasance, Norton concluded, there is no obligation to schedule a recall election, which is why the city council was justified in its action.https://www.postbulletin.com/news/government-and-politics/7144940-Red-Wing-recall-takes-next-big-step-with-lawsuit

Kent Laugen, another local attorney not directly connected to the case, said while the lawsuit does not focus on whether the burden of malfeasance or nonfeasance has been reached, there is precedent from the courts saying that decision is left up to the voters.

[Precedent? Show us! It doesn’t exist][“not directly connected to the case” but DIRECTLY connected to the Recall — see quotes in other PB articles]

Whether or not there is a special election, the next election the six council members face is going to be tough, Laugen said.

The court has yet to set a hearing date for the lawsuit.

After wading through the bullshit last night, it feels a lot better this morning in Red Wing. Watch the video, particularly Agenda Items 7, 10C, and 10D:

Red Wing City Council Meeting – June 14, 2021

In order of appearance:

• Agenda Item 7 – Terri Cook appointed to Charter Commission, no discussion, no muss, no fuss.
• Agenda Item 10C – Recall – Brown and Buss – once again, no malfeasance or non-feasance. DOH!
• Agenda Item 10D – Shared space – Mayor Wilson does not have exclusive rights to the shared space at City Hall.

There was a call to SHOW UP and support the Council, that’s the folks in white shirts, who far outnumbered the “RECALL” folks, about the same percentages as in the Presidential votes in our fair city. Overflow crowd.

In the Republican bEagle:

4 things to know about the Red Wing City Council meeting

In the Rochester Post Bulletin:

Recall committee loses another round at Red Wing city council meeting

Last night, the Red Wing City Council had just one substantive item on the agenda, a request for vacation of an easement from Tom and Anne Wilder. The land in question is that graveled area with driveway and car on it, and a wider section on the parcel to the north, also owned by the Wilders:

It looks like the City did not provide mailed notice to landowners owning property within 500 feet of the Wilders’ property! In particular, I’m looking at the landowners with contiguous parcels, those at 1231 – 5th St. W and 1268 – 6th St. W. They have smaller homes and lots, valued lower, and they just might appreciate the opportunity to add that land to their parcels.

I’ve received notice from Tom Wilder that neighbor to the east did get part of the piece that was vacated, which is good news!

Vacation of an easement is one of those things, like “cartway” that in law school was a big snooze. Yet it’s something to consider.

Back on 2019, we got notice about vacation of the easement adjacent to Daniel Sturgeon’s property here on West. I was not pleased about this when he had bought a lot for, according to the County GIS site, “under $1,000” and that he was now asking the City to give him more land. We got a notice in the mail and so I looked into it then, and spoke against it at the public hearing.

After Sturgeon got the land, he turned around and put it on the market for many, many times what he paid:

He’s had some reality orientation since and the price is now at $25,900, still many times more than what was paid:

Anyway, the Notice for the Wilders’ easement vacation request was very different from that for the Sturgeon easement vacation request. Note the “NOTE” at the bottom:

At last night’s meeting, Jay Owens stated that Notice was published in the Eagle, but that was all, and he expressly stated that there had been no contact with the adjacent landowners, in particular, the ones on the other side of the easement. That “other side of the easement” is to the east, the neighbor that Wilder has said did receive some of that vacated property ultimately.

The Charter has this notice requirement — publication, but no mailing of notice requirement in the Charter:

The timing of the Wilders’ request is odd, as they asked for the city to give them this land some time in March, based on the dates in the packet:

Agenda Item 10A – City Council Packet – 5-10-2021

The hearing was scheduled by the City Council at the April 12, 2021 meeting (9P – Attachment).

As you may recall, Anne Wilder drew this RECALL CITY HALL “cartoon” that was published by the Red Wing Republican Eagle — it was published days after scheduling of the hearing was placed on the Council agenda at the “Agenda Committee” meeting:

• I used to trust their judgment… Now I’m not so sure! What will they do next?
• I worry that this is just the beginning… Are we inviting big problems to our community?
• Great job City Council. My once-peaceful neighborhood just started FIGHTING over your decision to fire the Police Chief.
• This is the kind of thing that makes people move away…
• Shouldn’t a City Council always work to build a stronger, safer & better community instead of TEARING IT APART???

Just wow…

Here’s Tom Wilder right at the top of the initial \ RECALL CITY HALL petition regarding Andy Klitzke – Ward 2:

To ask for this easement vacation from the City while at the same time principals in the “RECALL CITY HALL” effort is, well, tone deaf, ballsy, to put it mildly.

My Letter to the Editor about this:

My question to the Wilders… shouldn’t this easement vacation wait until there’s a City Council you trust? Asking for a handout now (for the nominal fee of $425) seems a bit much given you want to “RECALL CITY HALL.“

It’s a RECALL TO NOWHERE!

From the City: YOU ASK, WE ANSWER — What’s a Recall?

They’re out today, trying to gather signatures, handing out the above flyers. Earlier this week there was a long advertisement for the recall effort:

Red Wing recall movement hits the streets for signatures

Residents point to firing of Roger Pohlman along with open meeting violation as reason for signing petitions.

And some great Letters to the Editor in today’s bEagle – click for larger version:

“Pathetic malcontents” pretty much says it all.

My $0.02:

Note that the recall petitions they’re trotting around only complain of open meeting law violations (click for larger version):

When they say “by voting unlawfully to deny an open City Council session for consideration disciplinary action against Chief Roger Pohlman, thus infringing upon the rights of the public…” it seems to me that what they wanted was a open IN PERSON meeting at City Hall, so they could storm City Hall!

Pohlman had a “name clearing” hearing, and here’s what it looked like outside City Hall — is there anyone under 50 in this sparse under-50 group:

These are the initial flyers about the recall:

And then there’s the ~250 “Petition” that had typed names, no signatures, people living outside of Red Wing and even in Wisconsin!! Several have complained that their name was used improperly.

And some more primary documentation — the initial campaign report with significant LARGE anonymous donations:

Here are the reports, initial and “amended.” SNORT!

VIDEO OF CHARTER COMMISSION MEETING

Agenda with links to attachments

A background Legalectric post:

“Recall” on Charter Commission agenda?!?

So I sent this missive to all, being oh-so-transparent with the ask and intent:

I then sent background info to support the request for recusal of Kent Laugen, Ernie Stone, and Shelley Pohlman, which was added to the agenda #11 documents. These primary documents are the Recall petition with Stone, Laugen (and Rehder) named; the Campaign Financial Report and Amended Report with contributions from Stone and Pohlman; a “Recall City Hall” flyer posted on Pohlman’s Red Wing Minnesota News page; and Post Bulletin article with quotes from Recall principals Ernie Stone and Kent Laugen:

Attachment – Email from C. Overland

I was told, “we will not be adding your requested item to the agenda as your concerns could be brought up under item 11.” You can see how that went.

No problem, if that’s what it takes to get it off the agenda, well, that’s what it takes.

Ultimately, yes, it was tabled. Good. However, the conflict issue was not addressed, and it should be if there are items relating to “recall” on the agenda. Note also that the changes to Charter 5.17 were not “technical changes” to align with the statute, but were substantive changes eliminating the run-off provision, something which needs to be discussed.

And did I mention that Ernie Stone said he’d talked to the City Attorney about me and my questioning of Shelley Pohlman at the last meeting? Wish I were a fly on that wall! Guess he doesn’t think I should challenge her false statements, documented, on refugee resettlement, and her claims of “conflict of interest” of County Commissioner Flanders. Oh well. Those false statements and pot-stirring continue with the recall effort.

Three new Charter Commission members were approved. In the section in the beginning where Peggy Rehder had applied, and was approved, there’s material background that was ignored. Rehder was voted in despite the 2018 formal complaint against her when she was on the City Council, the investigation, which resulted in the Council’s resolution that she participate in mediation with Marshall Hallock, and a firm directive that her out-of-bounds behavior not occur again. She resigned prior to mediation even being scheduled. What has changed to address these behavioral issues? That was not answered.

Watch the 4/23/2018 City Council video of Council deliberation and decision.

Something this serious should be addressed. It wasn’t. Instead, discussion was blocked, putting blinders on to a demonstrated problem.

In discussion of the other two applicants, Shelley Pohlman (a/k/a/ Rena Marsh) demanded to know if the names were their legal names! Shelley then wanted to know of Bjornstad was a member of League of Women Voters or AAUW! (I am not now nor have I ever been a member of…) Bjornstad noted that she was too young, maybe in a few years (SNORT!), but that she was a 5th grade civics teacher for a few years. Kent Laugen was wanting to know if they would be loyal to the Charter Commission, not the City Council, which was weird, questioning their integrity and ethics. Shelley questioned Greg Bolt about his “conflict of interest” because he is a pastor and the Council President is a parishioner, and his role in her election (he marched in a parade with a sign and something else inconsequential). Three people voted against Bolt!

Also, there was discussion of a comment made at the last meeting by Alan Muller, who thought there should be a requirement that committees of the Council be subject to the same charter provisions as the Council, and they asked about that, he was there at the meeting, raised his hand electronically, was ignored, I noted he was there, but they did not acknowledge him to address their questions to him directly. That was weird.

The rest of the meeting was a typical Charter Commission meeting…

Oh, and there is also supposed to be a public comment period at the beginning of each meeting which was not there this time, and I’ve requested that this be in the boilerplate agenda.