HomeMy WebLinkAbout[02] Memo on council member conflict of interest
MEMO
TO: Judy Weyrens
FROM: Tom Jovanovich
RE: Council Member Conflict of Interest Rules
OUR FILE NO.: 30255
DATE: April 12, 2011
Facts:
A city council member owns land that will be benefited by the Park Terrace Improvement
Project.
Issue:
Whether the interested council member is disqualified from voting to undertake or adopt the
improvement.
Short Answer:
No, the council member’s land interest is not considered a per se “disqualifying
interest” under Minnesota case law. Accordingly, the interested council member may participate in
the votes, as long as his or her land will not be disproportionately benefited by the improvement.
Analysis:
An interested city council member is not automatically disqualified from participating in votes
concerning the adoption of improvement projects and/or special assessments that would benefit his
or her property. Lenz v. Coon Creek Watershed, 153 N.W.2d 209, 219-220 (Minn.1967). Rather,
disqualification of an official must be determined on the basis of the particular facts present.
Relevant factors that should be considered in making this determination are as follows: (1) the
nature of the decision being made; (2) the nature of the pecuniary interest; (3) the number of
officials making the decision who are interested; (4) the need, if any, to have interested persons
make the decision; and (5) the other means available, if any, such as the opportunity for review,
that serve to insure that the officials will not act arbitrarily to further their selfish needs. Id. at 219.
In Lenz, the court found there was no disqualifying conflict of interest when four of the five
managers of a watershed district owned land that would be benefited by a proposed watershed
district improvement project. See Id. The court recognized that the situation was similar to those
where members of a city council assess lands owned by them for local improvements. See Id.
Accordingly, the court found this potential conflict of interest did not disqualify the district board
members from participating in the improvement proceedings. See Id.
Applied to the facts here, Lenz clearly supports the idea that city council members are not
disqualified from voting on improvement projects that will benefit their own land. The review
process available to the public, including public hearing and appeal proceedings, adequately
ensure that the council members “will not act arbitrarily to further their selfish interests.” Id.
Please note that the council member’s interestedness remains a factor in determining arbitrariness.
The City should ensure that it has adequate evidence available to show that the project or
assessment was not adopted arbitrarily. Also, the City should ensure that the council member’s
property is not treated any differently and does not receive any greater benefit than other affected
properties. Such circumstances would strengthen a challenge for arbitrariness and could result in
the assessment being set aside.
vaj
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