6/8/2017 3:14:00 PM Did North Branch Council over-step filling W&L post?
Tenth Judicial District Judge Bridgid Dowdal is reviewing arguments to dismiss a civil lawsuit against the City of North Branch, alleging the council acted illegally when it rescinded an appointment of a resident to the Water & Light Commission.
The issue is if Peter Schaps was deprived of due process when his Dec. 2016 appointment to the Water & Light Commission was rescinded in January this year.
Judge Dowdal stated June 2 she will make a decision “as soon as possible.”
According to the complainant’s attorney, Peter Schaps was used as a “political football” and this case is important because appointees are meant to be “isolated from politics” as much as possible in Minnesota.
But, North Branch City Attorney Vince Stevens argued Schaps wasn’t entitled to any special appeals or notice (due process) because North Branch doesn’t provide for this in utilities ordinances.
Stevens went on to state that Schaps had not yet attended a Water & Light commission meeting in 2017 and awaited being sworn-in to the three-member utility oversight group, when he was unappointed.
The post was filled by Cynthia Erickson, who has served for months. Any “rights” Schaps may have conceivably been entitled to as a commission member weren’t even in effect, Stevens said.
Stevens went on to state North Branch city council did not get rid of Schaps “at will” meaning with no reason. The council had a “plausible” basis for the action.
Schaps’ appointment was rescinded after council adopted a revised ordinance setting conditions for acceptable appointees.
The city now requires that Water & Light Commissioners be subscribers or “users” of the utility services. Schaps is not. He resides in East Central Electric service territory and he doesn’t have municipal water-- he has a well.
Attorney Robert Schaps (Peter’s brother) told Judge Dowdal there are several Minnesota cases where the court upheld a claim that someone was appointed for a “specific tenure” and ruled their removal was not legal.
“The city invented the user requirement,” Robert Schaps argued.
Also, when other cities’ change their ordinances there are ways to “grandfather- in” existing circumstances, Schaps continued.
Stevens countered that “...it is permissable to invent” conditions for citizen service, tailored to the needs of that city. He said applicants are held to age requirements and residency mandates for appointed positions, etc. As long as a condition isn’t disallowed by statute and is in the best interests of the city--this happens all the time.
As for “grandfathering” there is no stipulation in any code or statute calling for this to be “automatic.”
Robert Schaps argued that this was a groundless politically-biased action, and his brother’s “right” to hold the post is at-issue. (Peter Schaps was selected at the end of 2016 and by Jan. 2017 two incumbent council members were gone.) This is about the law, he said, and the notion of due process. Appointees are to be “isolated” from politics as much as possible.
Stevens acknowledged that he had described in his briefs the North Branch political atmosphere in 2016-- and how Schaps had worked to abolish Water & Light (he was behind the petition to hold a city referendum) and he tried to “wreak havoc” with commission doings.
But, Stevens said the majority of city council determined a utility commissioner should be a user of the electric and water systems. This helps ensure decisions are owned by the member and will directly affect them.
Politics weren’t involved as the council simply affirmed an appointee who would comply with the ordinance.