City attorney: Recall petition is invalid

WILLMAR -- Willmar City Attorney Robert Scott concluded Friday that the petition to recall long-time Ward 2 City Council member Ron Christianson is not valid because it does not allege facts that, if true, would constitute "malfeasance'' or "nonf...

Recall Ron
Signs supporting the recall of Willmar City Council member Ron Christianson recently line Ramblewood Ave. southwest in Willmar. (Rand Middleton | Tribune)

WILLMAR - Willmar City Attorney Robert Scott concluded Friday that the petition to recall long-time Ward 2 City Council member Ron Christianson is not valid because it does not allege facts that, if true, would constitute “malfeasance’’ or “nonfeasance’’ in Christianson’s performance of the duties of his office.
Scott’s opinion was emailed Friday to Interim City Administrator Kevin Halliday who released it to the news media and others.
Scott said his determination that the recall petition is not valid is subject to appeal to Kandiyohi County District Court, as provided in Willmar’s City Charter.
Christianson said Friday that he is very pleased with the attorney’s findings, but said it’s been very hard on his family.
“I’ve known from the beginning that the recall petition was legally insufficient,’’ he said. “The recall committee, which has a lawyer as one of its members, did not have competent leadership.
Their motives were strictly political, and their actions were an abuse of the recall provisions of the city charter. Very irresponsible, and unfortunately, a disservice to the city of Willmar, myself, and my family.’’
Wayne Nelson, chair of the Recall Ron Committee, said he was reviewing the opinion and said the committee would have an official statement later.
Scott said that by allowing for removal of local elected officials from office only for malfeasance or nonfeasance in office, the Minnesota Constitution has established a high bar to clear for citizens attempting to recall a sitting officeholder under a home rule charter.
“That the bar is so high is the result of the public policy in this state that elected officials should only be subject to removal from office for official conduct that is ‘wholly illegal and wrongful’,’’ Scott said.
He said the recall measure does not pass this high bar because it does not allege facts which, if true, would constitute malfeasance or nonfeasance in his performance of his duties in office.
Members of the Recall Ron Committee, after a two-month signature collection effort, filed the petition containing nearly 900 signatures Tuesday with Halliday. The petition alleged Christianson violated the trust of citizens by bypassing accepted procedures for termination of the city administrator; used his council position to advance his personal agenda; and violated the law when he drove around barricades and through a restricted area established to protect the public and first responders while responding to a gas leak.
Scott had five days after receiving the petition Tuesday to return the petition with his conclusion that the petition is or is not a valid and legal petition.
In reviewing the petition, Scott wrote that he was mindful and respectful that Christianson was very recently re-elected by Ward 2 residents, and that a sizeable number of such residents have now expressed a desire to recall Christianson.
Scott said the charter places important responsibility on the city attorney to determine if a valid basis for recall has been asserted in the petition’s recall measure, “and I have taken that responsibility seriously in impartially reviewing the petition and applying the relevant law to its provisions.’’
Scott said the Minnesota Constitution empowers the Legislature to provide for the removal from office of “inferior officers,’’ which the Minnesota Supreme Court has held to include elected city officials “for malfeasance or nonfeasance in the performance of their duties.’’
He said one charter requirement is a statement on the recall petition that clearly sets out the alleged malfeasance or nonfeasance of the officeholder being proposed for recall.
Scott said the Minnesota Supreme Court has construed “malfeasance’’ and “nonfeasance’’ to mean conduct that must be such as affects the performance of official duties rather than conduct which affects the official’s personal character as a private citizen, including the performance of an act by an officer in his official capacity that is wholly illegal and wrongful.
Applying case law, Scott said Christianson’s alleged illegal entrance into a restricted area bears no relation to his official duties as a council member. Scott said the petition makes no allegation that Christianson’s entrance into the restricted area was in any way the result of official actions Christianson took as a council member or was in any way connected to the duties of his office.
“At most, therefore, these allegations relate to conduct which affects Mr. Christianson’s character as a private individual,’’ Scott said. “Even if the alleged conduct is entirely true, and Mr. Christianson did act illegally by driving around barricades and through a restricted area and did thereby unnecessarily compromise public safety, such conduct could not constitute malfeasance because the conduct was not undertaken in his official capacity.’’
Regarding the allegation that Christianson bypassed accepted procedures for terminating the city administrator despite unprecedented public outcry and council members’ request for supporting information and justification, Scott said these allegations are most properly viewed as criticisms of Christianson’s policy decisions. Scott said they do not allege conduct that is wrongful or illegal, or that Christianson failed to take some action he was legally required to take. As such, Scott said, these are not allegations of conduct that, if true, would constitute malfeasance or nonfeasance.
Scott said the allegation that the “orchestrated action’’ to approve the separation agreement appeared to have violated the open meeting law “amounts to a tentative conclusory statement’’ and that the recall measure does not allege any specific conduct on Christianson’s part, that if true, would constitute an open meeting law violation. Citing case law, Scott said the allegation of nonfeasance lacks the precision and detail required of a recall petition.
The petition also alleged Christianson used his council position to further his personal agenda, and alleged he previously opposed the Westwind Townhomes project but later received approval for his own higher density twin home development.
Scott said the petition does not allege that Christianson violated any laws or failed to do something which he was legally required to do in opposing the Westwind project, and in any event, Scott said, the matter was before the council more than seven years ago.
“The petition’s allegations concerning the Westwind project are most properly characterized as criticisms of Mr. Christianson’s policy decisions,’’ Scott said.
Regarding Christianson’s twin home project, Scott said Christianson sought Planning Commission approvals for his housing project as a private citizen, and he abstained from voting when the council approved the Planning Commission’s minutes which reported on the commission’s approvals sought by Christianson.
The allegations concerning Christianson’s twin home project do not amount to malfeasance or nonfeasance, Scott said, because the council’s limited role in receiving the minutes does not involve illegality or wrongdoing, or a failure on Christianson’s part to do something that he was obligated to do.

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