Last week I mentioned that I was attending the League of Minnesota Cities annual conference in Rochester. But I should add that I was not the only Maplewood representative there -- in fact, 80% of the council attended (Will Rossbach, Kathy Juenemann, Diana Longrie, and me).

I think this is a very good thing. Part of the value of the conference were the round-tables and seminars (I attended ones on such topics as city government ethics, how to involve younger people in city government, and the laws that define and govern public purpose expenditures for cities). A bigger value, as I've found to be true of private sector conventions, is the networking. It was a chance to meet peers in other cities, learn about what issues they are facing, get ideas that may be adapted to our city, and so on. There was also a room of exhibitors who offer goods and services to cities -- architects, engineers, accountants, and other consultants, for example -- and that was an opportunity to meet some new people and also touch base with some who already work with Maplewood. And you never know when an acquaintanceship struck at a conference may provide just the connection you need sometime in the future.

In Maplewood's particular situation, as we are moving ahead with our city manager search, I think it was especially good to have four of us visible at the conference. I certainly received numerous questions about how things are going, and particularly about the manager search, and was pleased to be able to tell people that at our last meeting we had approved an RFP to send out to search firms. A couple of folks commented to me that they knew people who were interested in the position. Every positive impression we made in Rochester may encourage someone to apply, and the more and better candidates we get, the better for Maplewood!

Update: Will Rossbach talks about the LMC conference on his website; the LMC itself provides a "post-game" report.

Labels: process

Posted by John Nephew at 6/17/2008 05:11:00 PM | Permalink | Comments

It's difficult to overstate the importance of the "comp plan" for city planning and the related recommendations and decisions made by city staff the the city council. In the Twin Cities metro area, Minnesota state law has given a special role to the comp plan. The comp plan not only involves our vision for our community, but the update process engages neighboring communities and political subdivisions, so that development will occur in a way that is mindful of regional needs.

The City of Maplewood is hosting an open house for the public to review and comment on the proposed 2008 update to our Comprehensive Plan. It will take place at the Maplewood Community Center (2100 White Bear Ave.) on Thursday, May 22, from 6 to 8 PM.

Labels: events, process

Posted by John Nephew at 5/18/2008 01:42:00 PM | Permalink | Comments

Monday night's special meeting about the proposed CoPar settlement went late into the night, and the end result was tabling action until next week. While that may seem like a lot of sound and fury that signified nothing in the end, I think we may actually be on the verge of a breakthrough. For one thing, this may have been the first time the developer could directly witness the council discussing the settlement-related issues and identifying our individual concerns, without having it mediated by city staff and attorneys on both sides.

As I wrote in this blog two months ago, my chief concern in a settlement outcome has been to open the door for public ownership of land south of Fish Creek. When I wrote at that time, I posed it specifically in terms of a referendum, but I have become increasingly optimistic that there are other potential funding sources to explore as well. A letter delivered to us Monday evening from the Friends of the Mississippi River amplifies my optimism, as they offer their "assistance as a partner with the City and area stakeholders in helping to protect the land around Fish Creek as a natural and open space."

Some on the council may be cool to the idea of a bonding referendum. As a result, they may be reluctant to state unequivocal support for the conservation goal, out of a fear that it could imply their endorsement of city borrowing and spending. I can see how a politician might not want to face a choice between support of the environment and opposition to taxes. On the bright side, at least there seems to be acceptance of the conservation idea if money comes from somewhere else.

Labels: environment, process

Posted by John Nephew at 5/08/2008 01:09:00 PM | Permalink | Comments

As I discussed in my last entry, if we go to court in the CoPar suit, a judge will determine whether the city, exercising quasi-judicial authority, was arbitrary, unreasonable or capricious in deciding not to approve CoPar's conditional use permit application.

Many people who look at the CoPar situation wonder how the city's decision in September 2006 could possibly be called arbitrary, unreasonable, or capricious. The R-1(R) zoning requires lots at least 2 acres in size; CoPar's proposal had smaller lots; therefore it was turned down because it did not comply with the zoning regulations. What's the matter with expecting people to follow the rules? And why would the developer think they could build more houses on that land in the first place?

The problem is that Maplewood's zoning and our comprehensive plan on this parcel do not agree with one another -- and in Minnesota, the comprehensive plan trumps zoning.


First of all, the problems with Maplewood's comp plan. The southern portion of CoPar's property is guided as "R-1."

On page 30 of the Comp Plan, we are told, "Table 5 (on page 33) shows the maximum number of people per gross acre allowed . . . If someone wants to know how many units of a certain type of dwelling they can build, they should use Table 5." Unfortunately, Table 5 on page 33 does not specifically mention the R-1 land use category. It does say that, for "Single Dwelling," the city expects 2.9 people per unit. It also seems to cross reference "Single Dwelling" with the R-3L and R-3M land uses for 4.1 and 4.6 units per acre, respectively -- but those are multiple dwelling land uses. This makes no sense. Maybe it means that R-1 can have up to 4.1 or 4.6 units per acre, if there are some kind of headers missing from the right columns of the table that would clarify what they mean?

On page 32 of the comp plan, there is a much more clear listing of the land use categories. Under residential land use, it specifies that R-1 means "Single Dwelling (10,000-square-foot lot areas)." In other words, roughly 4.3 units per acre.

The Residential Land Uses has three categories of "Residential Estate" uses (RE-20, RE-30, and RE-40), that do specify larger lots (of 20/30/40 thousand square feet each, respectively). If larger lots were intended, why wasn't the land guided as one of these?

Also the R-1(R) zoning ordinance mentions land where municipal sanitary sewer and water service are not foreseen, thus requiring larger lots for septic systems. If a developer is willing to install sewer and water, are the large lots still necessary, given that the comp plan allows for higher densities under the R-1 land use?

So we appear to have a problem between the comp plan (lots as small as 10,000 square feet) and zoning (lots no less than 2 acres, or 87,120 square feet) on this parcel. Which can the developer -- or the neighboring residents -- rely on?


Unfortunately for Maplewood, the law is quite clear: If there's a disagreement between the Comp Plan and the zoning controls, the comp plan wins.

In several places, the Metropolitan Land Use Planning Act suggests that the Comprehensive Plan outranks zoning and other official controls. For example:

473.865 ADOPTION; CONFLICTS, AMENDMENT OF CONTROLS, DEVICES.
Subdivision 1. Control copies to [met] council. Each local governmental unit shall adopt official controls as described in its adopted comprehensive plan and shall submit copies of the official controls to the council within 30 days following adoption thereof, for information purposes only.
Subd. 2. No conflict with plans. A local governmental unit shall not adopt any official control or fiscal device which is in conflict with its comprehensive plan or which permits activity in conflict with metropolitan system plans.
Subd. 3. Amendments. If an official control conflicts with a comprehensive plan as the result of an amendment to the plan, the official control shall be amended by the unit within nine months following the amendment to the plan so as to not conflict with the amended comprehensive plan.

In Metropolitics: A Regional Agenda for Community and Stability (Brookings Institution Press, 1997), former Minnesota legislator Myron Orfield discusses the Metropolitan Land Use Planning Act, which he actually introduced. He writes (p. 126):

In terms of enforcement, the Land Planning Act provided explicit authority for both the Met Council and interested citizens to sue to ensure that the Development Guide was followed. It reversed the so-called "Merriam Amendment," which had given local zoning laws precedence over comprehensive plans.

The language of the statute can be confusing sometimes to those of us who are not lawyers, but I think Mr. Orfield's words cut through the legalese of the Act to make his intent as its author clear. He intended to reverse the Merriam Amendment, and to give comprehensive plans precedence over zoning.

Usually developers have been on the other side of this issue in their lawsuits (as in Mendota Golf, LLP v. City of Mendota Heights, when the zoning was less restrictive than the comp plan; the developer sued to force the city to change the comp plan to match the zoning, and the Minnesota Supreme Court sided with the city). Developers know very well to look at the comp plan first, and property lawyers advise their clients to "rely only on the comprehensive plan’s use designation."


At the Planning Commission public hearing and in e-mails from residents since then, I've heard many folks who oppose the development asking that we go to court and trust that the judge will rule in our favor. Perhaps, some have suggested, this will be the test case to overturn the rule of comp plan over zoning.

If we go to court and hope to win, I think we need to be very clear on what we will be trying to persuade the judge to do. We not only will ask her to overturn precedents from previous court cases. We will want her to overturn the law itself, or somehow interpret it in a way directly contrary to the explicit intent of the legislators who wrote it.

While I'm not a lawyer, it seems to me that this is a pretty slim hope on which to pin the future of this land that our community values so highly.

Labels: process

Posted by John Nephew at 5/04/2008 05:29:00 PM | Permalink | Comments

Tomorrow we have to make a decision on a proposed settlement of the CoPar litigation. Like the rest of the council, I've spent an enormous amount of time studying this issue and searching for the best course of action. I think if I tried to write about all the aspects of this situation, this would be a very long entry, and I probably would not be done writing it before tomorrow night's meeting.

For whatever it's worth, I did want to spend some time writing about the legal issues of the case, as best as I have been able to understand them.

CoPar's application in 2006 was for a conditional use permit. This determined the way that the city council was allowed to evaluate the application. In training seminars sponsored by the League of Minnesota Cities, I've several times encountered the following diagram. (This particular version comes from "Land Use Issues Presentation: Comprehensive Plan and Land Use Ordinances.")
On the bottom of the pyramid, a city council makes broad-brush decisions -- such as the Comp Plan to guide the development of the community over decades to come. When you get to the narrow top of the pyramid, the council has less and less choice; the question is not about what the council would like. Instead, the council must judge what the current law allows given the facts placed before us.

A decision about what to put in the comp plan, or how to zone a property within the parameters permitted by the comp plan, is a legislative decision. According to another League of Minnesota Cities Insurance Trust document ("Zoning Decisions," p. 1),

When adopting or amending a zoning ordinance, a city council is exercising so-called “legislative” authority. The council is advancing health, safety, and welfare by making rules that apply throughout the entire community. When acting legislatively, the council has broad discretion and will be afforded considerable deference by any reviewing court. City councils are ultimately accountable to the voters for legislative decisions.

In contrast, when deciding how to apply the comprehensive plan and the zoning -- for example, by judging whether or not a specific conditional use permit should be issued -- the city council is making a quasi-judicial decision. The same LMCIT document goes on to say, with regard to quasi-judicial authority:

The task is to determine the facts associated with a particular request, and then apply those facts to the legal standards contained in the zoning ordinance and relevant state law. A city council has less discretion when acting quasi-judicially, and a reviewing court will examine whether the city council applied rules already in place to the facts before it. In general, if the facts indicate the applicant meets the relevant legal standard, then they are likely entitled to the approval.

The LMCIT document provides more information specific to conditional use permits (p. 3):

City councils sometimes misunderstand the level and the nature of discretion they have when reviewing applications for conditional use permits. If a proposed conditional use satisfies the conditional use standards set forth in the zoning ordinance, then generally the landowner is entitled to the conditional use permit. The city made the legislative decision about the appropriateness of a kind of use in a zoning district when the council adopted the ordinance providing for the use as conditional. When considering a conditional use permit application, the city is tasked with the more limited quasi-judicial role of considering whether the facts of a particular application satisfy the standards set forth in the ordinance.

Boiling things down, CoPar's argument is that the city was arbitrary or unreasonable in denying their application, because their proposal (in their view) did comply with the city's standards. In order to appeal the city's decision, they filed suit. If we proceed to court, a judge will examine the record and determine whether the city applied the law correctly to this situation.

The LMCIT document also discusses how a judge would review a decision (p. 5).

If the city action is challenged, courts will review the decision on the public record. The record must demonstrate the city exercised the appropriate level of discretion and applied the relevant standards in a reasonable fashion. It may not matter that the city acted reasonably if the city is unable to prove its actions through the public record. (emphasis added)

It is very important to understand the role of the record. The judge can only determine whether or not the decision was appropriate, based on the reasons given by the council when they made the decision. Was the law applied correctly, given the facts set out by the public record when the council's decision was made? If someone, after the decision, came up with an added reason or better explanation for why it was reasonable to turn down the application, that will not help the city win the case.

It should be no surprise that the LMCIT strongly recommends that a city create a written list of findings for quasi-judicial decisions such as those about conditional use permits (p. 6).

The written statement explaining the reasons for the zoning decision is particularly important for quasi-judicial decisions such as variances and conditional use permits. The League recommends the city adopt written findings of fact and conclusions of law whenever a city makes such decisions. The document should identify the relevant legal criteria such as statutory standards or code provisions, explain the relevant facts relating to the particular application, and then apply those facts to the legal criteria. The document should provide a court with everything needed to uphold the zoning decision.

Unfortunately, in the decision that led to the current lawsuit, those written findings were never produced. This is just one of the complications that we face, but the unique problems of our specific situation are better saved for a separate article.

Labels: process

Posted by John Nephew at 5/04/2008 02:19:00 PM | Permalink | Comments

The past week has been very busy, so I'm late in writing this, but I wanted to say that I thought there was a lot to like about last Monday's council meeting (April 28). In particular the wetland ordinance discussion at the end seemed to me to be a good example of the way that, as a council and a community, we should operate.

At issue were changes to the wetland ordinance, which I have discussed previously. The agenda item was the second reading of the proposed changes; if we had approved it, they would have become law as soon as they were published in the official newspaper.

A number of residents came forward with concerns. On the whole, my sense was that the residents supported the intent and general thrust of the changes and placed a high value on water quality and wetland preservation, but they were calling the council's attention to specific issues that concerned them in terms of the impact and possible unintended consequences in their own neighborhoods. They brought the issues forward in a manner that was reasoned, respectful and constructive, and all of us -- the council, the city staff, the chair of the Environmental & Natural Resources Commission -- listened and discussed their points.

In the end, the council decided (with what looked to me like the agreement of city staff and the commission chair) to table the second reading, and refer the ordinance back to the Environmental Commission for another look in light of the concerns that had been raised (and, I hope, with the continued involvement of the residents who brought those concerns to us).

I am hopeful that this is a sign of things to come, in terms of how the council and the city can work together in a positive way.

Labels: environment, process

Posted by John Nephew at 5/03/2008 05:53:00 AM | Permalink | Comments

The front page of the Maplewood website has an open letter to residents from Acting City Manager Chuck Ahl, addressing concerns about the city's finances. It will also be printed in the next city newsletter that is mailed to residents each month.

The key message in the letter is to reassure residents that no evidence of misappropriation or wrongdoing has been found. Rather, the underlying problem is that the city's accounting has not been kept up to date. This is understandable, given that the finance department was seriously short-staffed at various times last year. I believe we went from a full complement of eight employees in 2006 down to a low of just two people in the finance department for one portion of 2007. A lack of timely accounting has a ripple effect on planning and budgeting city-wide (remember the erroneous claims from certain elected officials and their supporters that the Community Center was "in the black" last year?), so this is not a situation we want to have going forward. Fortunately, our city staff has made fixing this problem a top priority.

What about an audit? The Pioneer Press called for the State Auditor to get involved with Maplewood's situation, and Councilmember Erik Hjelle has written that he "will be requesting a forensic audit of the city by an outside body."

After last fall's election, I paid a visit to the State Auditor's offices. I happened to stop by on an afternoon when Rebecca Otto had an opening in her schedule, and I was able to learn directly from her about her office's role in relation to local governments like Maplewood. The State Auditor is charged with directly auditing a number of government entities, such as the counties and the three first-class cities (Minneapolis, St. Paul, and Duluth). Normally a city like Maplewood hires a private auditing firm to review its books. However, our city council could request that the State Auditor audit our books as well, and I wondered if this might be a good idea, given the concerns I had about Maplewood's financial management under last year's leadership.

There are a couple of things to keep in mind at this point. One is that our auditors review the books once each year, so they have not yet looked at the 2007 records that are of concern. The second is that requesting the State Auditor to perform our 2007 audit would probably cost us taxpayers more (the city would be paying for the audit either way), since those auditors don't have the familiarity with our books and past practices that our current auditors do.

The State Auditor also is charged with special investigations of local governments -- for example, if someone finds evidence of missing property or funds. As Mr. Ahl's letter indicates, we have found no indication of such misdeeds. If we did, we would be required by law to notify the State Auditor.

After the meeting, my conclusion was that the best course of action was to let the normal auditing process play out. If anything suspicious was uncovered, then we would turn to the State Auditor for investigation and forensic auditing as appropriate. In the meantime, at the January 14th city council meeting, I proposed that the council name a liaison to our auditors, and received that appointment.

Labels: finance, process

Posted by John Nephew at 4/07/2008 11:05:00 PM | Permalink | Comments

This week's Maplewood Review includes an article by Alex Davy that is well worth reading. Entitled "Goal-setting session pushed back; Mayor cites concern about open meeting law," it should probably be nominated for some award for longest and most in-depth article about a meeting that did not actually occur. Davy uses last week's cancelled council retreat as a springboard for a discussion about the Open Meeting Law in its Maplewood historical context, and also in the context of a bill now working through the Minnesota Legislature.

That bill is SF 3120/HF 3367. The two key provisions of the bill are first to require the recording of meetings that are closed for reasons other than attorney-client privilege. (In Maplewood we already record all closed meetings.) The second is an addition to the law that allows for the award of reasonable attorneys fees in cases where a written opinion was issued by IPAD and "the court finds that the opinion is directly related to the cause of action being litigated and that the public body did not act in conformity with the opinion." This brings the Open Meeting Law in line with other aspects of the Minnesota Government Data Practices Act with respect to IPAD's advisory opinions.

These are small steps, but I'm happy to see any movement forward in the law. Remember, the Open Meeting Law does not only apply to the city council -- it also applies to the volunteers who serve on our city's citizen boards and commissions. As I am correctly quoted in Mr. Davy's article, I believe we need to bring more changes to the Open Meeting Law, to better encompass modern communications technology. This could improve communications within elected and appointed bodies, and increase transparency for citizens.

Labels: process

Posted by John Nephew at 4/03/2008 09:18:00 AM | Permalink | Comments

[This is an e-mail I sent yesterday to a mailing list of commissioners, activists, and other interested citizens. Councilmember Hjelle had previously sent a message laden with inaccuracies to this list, and several of the recipients had forwarded it to me. I thought it would be good to post my message here as well, for anyone interested to see.]

Folks,

Apparently some false information is being spread around by Councilmember Hjelle.

Among other tall tales, Mr. Hjelle wrote, “The sad reality is that our new council majority has no interest in addressing the concerns of the Moratorium and the area impacted by the COPAR development. That is why the issue is efectively [sic] dead, and why the moratorium is being allowed to simply end.”

The moratorium is ending because the city council lacks legal authority to extend it further. I brought this up at the January 28th council meeting, specifically because I was concerned about development occurring between the expiration of the moratorium and the adoption of any action based on the study findings.

In case anyone needs proof, I went back to the DVD of this meeting, excerpted the relevant portion of the discussion, and put it on YouTube:


You can see me ask, and Mr. Ahl and Mr. Kantrud answer quite clearly that we have extended the moratorium as far as the law allows. You can also see on the video that Mr. Hjelle was present to receive the same information. You'd have to ask him why he would lie to you all about this.

In terms of my interest in addressing the concerns of the moratorium area, I hope it's obvious that Mr. Hjelle does not speak for me and fails to accurately depict my views.

As I learned about the issues in the moratorium study area, I became interested in ways to preserve ecologically sensitive land there, and I came to appreciate how highly valued the land is in the eyes of the members of the original open space task force as well as south leg neighbors. I also am aware of the issues of property rights, ongoing litigation, and the complexities of land use planning. Finally, I worry that the solution some favor – of keeping 2-acre minimum lots – is no solution at all for the long term, even if it is something the city could maintain. Do we really want all those septic systems uphill from Fish Creek?

The only way to really preserve the ecological value of the land around Fish Creek is public ownership. This is not something the city could pay for out of petty cash, especially with the financial situation we've inherited. The original open space referendum money, of course, was long ago spent on other land. This means that the city would have to issue bonds. A referendum would be required and a majority of voters would have to support the borrowing.

I am asking city staff for information on the process by which such a referendum could be accomplished. In the meantime, interested folks can get a start by reading a section of the Handbook for Minnesota Cities, Chapter 24: Debt and Borrowing (look at “Voter Approval” on pages 7-8 of this document).

If certain members of the council are interested in actually doing something for Fish Creek, rather than just trying to exploit it as a political wedge as they did last year, then we might get the votes in the council necessary to authorize a bond question on the ballot.

Then it's up to the citizens. The League of Minnesota Cities warns, “City officials should be careful not to endorse or campaign in favor of the bond election. Any published materials should be confined to factual statements about the project to be financed. Campaigning should be left to citizen’s groups.” (This comes from an Attorney General's opinion.) Fortunately, we may already have such a citizen's group in the form of the Fish Creek Initiative.

While bonding to buy more open space may be a tough sell with the electorate, especially in this economic downturn, we do live in a community that puts a very high value on our environment, our parks, and our neighborhood preserves. A ballot question would give citizens and activists who want to protect Fish Creek and its environs the chance to take their case directly to the voters, to persuade them that this is an investment that is worth making for Maplewood's future.

Sincerely,

John Nephew, Councilmember

Labels: environment, finance, process, video

Posted by John Nephew at 3/02/2008 11:00:00 AM | Permalink | Comments

I wanted to take a moment to talk about the council's dismissal of the city manager and our recent settlement. I voted to dismiss Mr. Copeland because I believe he isn't suited to work with Maplewood's new city council. I disagreed with his philosophy on management and labor, as I heard him express it and witnessed its practical effects on the city's budget, reorganization, and related lawsuits. I believe he politicized his role by implementing the agendas of particular members of the council instead of serving the council as a whole, and because of this I don't trust him. A city council, in my view, has a duty to employ a city manager who has their trust and confidence and to replace one who does not.

In asking outside counsel to help with Mr. Copeland's dismissal, I had three goals:

1. Remove Mr. Copeland from office
2. Reduce the cost of Mr. Copeland's severance package
3. Reduce or eliminate the risk of litigation from Mr. Copeland's removal

The main points of the final settlement are:

• Mr. Copeland is removed without cause.
• Mr. Copeland withdrew his request for written charges and a public hearing.
• Mr. Copeland agreed to a very broad release and discharge of any possible litigation he might have brought against the city.
• The city agreed to pay Mr. Copeland's salary and benefits through June 14th. This amounts to five months of severance, if you include the time he's been on paid leave. The city also agreed to reimburse a number of work-related expenses from late last year, provided the appropriate receipts are submitted. The parties agreed to what exactly “benefits” includes (namely, the city's contribution to health, dental, disability, and life insurance).
• The city agreed not to bring suit against Copeland for known claims, with two items specifically mentioned.
• The city's release does not include any presently unknown claims, nor any criminal charges that might be prosecuted. The city also reserves the right to bring him in to any lawsuit that results from actions he took as city manager, if he is not indemnified by Minnesota Statute 466.07. (This statute requires cities to indemnify officers and employees who are sued for actions taken in the performance of their duties, with exceptions for malfeasance in office, willful neglect of duty, or bad faith.)
• The settlement agreement constitutes the entire agreement between Copeland and the city, superceding any other agreements or understandings.

By taking our time, consulting with our attorneys, and negotiating these terms for Mr. Copeland's departure, I think we took the right path in serving the interests of the city, and we achieved my three goals.

In terms of monetary savings, we clearly saved at least one month of severance expenses. This alone covers the fees of outside counsel, and saves a little more for the taxpayers besides.

More importantly, Mr. Copeland's release and discharge lays to rest all the legal questions that were swirling in the air, at least on the civil front. Whatever you may think of the validity of the agreement signed by Mayor Longrie and Mr. Copeland, we won't have to spend any money debating it in court. That document is now moot as far as Mr. Copeland's employment with the city is concerned.

As I said before voting to approve the settlement, I do believe there was just cause to dismiss Mr. Copeland. But the financial benefit from doing that was limited. At best, we could have avoided paying six months of severance. Mr. Copeland's lawyer had indicated his willingness to sue to obtain that severance, so those savings had to be weighed against the legal expenses of taking a stand. While I think we would have won in the end, I also think we probably would have spent more than the value of Mr. Copeland's severance in making our case.

I realize that some residents will feel let down by the settlement, and will wish that we had opted for a public confrontation. Besides the lack of a financial upside for doing that, we also have to consider the impact it would have had on the community. A drawn-out battle would reopen wounds, further polarize the community, and distract us from important business that needs our attention. In short, rather than helping repair the dysfunction of the past two years, my worry is that an extended struggle over Copeland's dismissal would prolong it.

Finally, I'd like to suggest that the problem with Mr. Copeland was ultimately not about him as an individual, but the role he played as a faithful tool in the hands of last year's council majority. Personal hostility towards him is misplaced. The previous majority appointed him and expressed satisfaction with his performance time and again, because he was in fact doing what they wanted to see done. The responsibility should rest on their shoulders when the true costs of the past two years of mismanagement are tallied.

Labels: process

Posted by John Nephew at 2/22/2008 06:56:00 PM | Permalink | Comments

The last of our campaign literature has begun arriving in mailboxes. We received our copy in Saturday's mail, and as I was out talking to voters this weekend I heard from folks from north to south who had also received it.


Throughout this campaign, I've used this guiding principle for my campaign's literature: Don't try to convince voters of something new; remind them of what they already know to be true. The purpose of the literature is not to change anyone's view of the world, but to inspire them to take action, to give them confidence that their vote can fix the problems that are plain for all of us to see.

In my first piece, the door-knocking palm card, I laid out my three campaign themes: fiscal responsibility (anyone who got a property tax bill for 2007, while seeing the elimination of the parks department, can understand this one); good government (anyone who had doubts about this can see Erik Hjelle spending our tax dollars to promote reeelection of his ally, Rebecca Cave, in the latest city newsletter that was rushed out just in time for the election); and pride in Maplewood, which is really the call to action -- persuading voters that we can restore our pride in Maplewood by using the ballot box to choose a better future for our city.

Before the primary, we created "Puzzled" as a metaphor for the divided and fractured city that we all have come to see, and to suggest me as a candidate who can solve it.

In "Shortchanged," we reprinted a number of headlines and quotes about the 2007 budget and reorganization and its fallout, reminding voters of the mess we've all watched unfold over the past two years. "Bad Apple" was a humorous spin on the feelings expressed to me by many voters all over the city, who felt angry and frustrated, even if they had voted for some or all in the council's current majority. We wanted to acknowledge those feelings, but turn them to a positive end of bringing needed change.

Coming into the home stretch, Will and I were again producing joint pieces. "Lightbulbs" further developed the motif of light and darkness from Will's mailer "Dutch Boy" (which compared him to Hans Brinker holding his finger in the dike through a long, cold night to hold back the flood while waiting for help to arrive). This council majority talks a good line about openness, but they have been surrounded by controversy over alleged violations of the open meeting law, and actions such as the 2 AM permanent appointment of Mr. Copeland as city manager "in the dark of night."

And this of course brings us to this last mailer, "New Day." It took a lot of crisp autumn mornings for me to get the right photograph of a beautiful Maplewood sunrise (that long rainy stretch in October wasn't helping!). We wanted something simple, positive, and inspirational -- as we've found throughout this campaign, the voters know what needs to be done. We just want to nudge more of them into the voting booth. (And to bring their neighbors!)

We've worked hard to keep our literature positive. While we have legitimately criticized the official actions and methods of this council majority (which includes one of my opponents), to remind voters why change is needed, we have avoided personal attacks on our opponents, and taken great care to comply with campaign laws. I believe that a victory built upon personal attacks, smears, threats, and lies is no victory for Maplewood; it deepens the divisions in the community, provokes resentment, and makes it hard to govern effectively (as the last two years demonstrate). If winning this race requires the use of such methods, I would rather not win.

I believe voters appreciate the difference. Take a look at the literature of my campaign and Will's, put it next to the literature that has come from the other candidates and their supporters (including those anonymous attacks and the use of our taxpayer-funded city newsletter for campaigning). Which campaigns have displayed the methods, attitude, and regard for the law that you would like to see speaking for you and your community in City Hall?

The answer should be as clear as day.

Labels: campaign, process

Posted by John Nephew at 11/05/2007 09:12:00 AM | Permalink | Comments

While the present council majority and their city manager have devoted so much time to their political-strategy-related policy initiatives, such as conservation easements, we see them neglect the day-to-day basics of the city.

For example, it appears that Maplewood still has not filed its 2006 financial reports, which were due to the State Auditor on June 30th. The Auditor's office has written to Mayor Longrie asking for the long overdue reports, and stated that there will be a penalty if we do not file the overdue documents by October 31st.

Labels: process

Posted by John Nephew at 10/18/2007 10:59:00 AM | Permalink | Comments

It's about time.

Monday night, at a council/manager workshop, the city council majority finally allowed a discussion of a wider range of options for the protection of Maplewood parks and open space -- a discussion that Will Rossbach has been requesting for months. The packet prepared for the meeting by city staff includes various alternatives, their pros and cons, and their costs.

This is a meeting that should have happened months ago. The city manager and council majority invested a lot of time and thousands of taxpayer dollars in one option (the most expensive one), and advocated its use across the board, before even looking at what other options might be out there. The entire saga of conservation easements has demonstrated the flawed approach to decision-making that is typical of this council majority, putting their personal and political agendas ahead of the public good.

Let's take a trip down memory lane.

The first mention I can find of conservation easements was a column attributed to Erik Hjelle in the September 2006 city newsletter: "The council is also researching the steps necessary for conservation easements on open space." (Can anyone point me to an agenda item or meeting minutes where the council discussed easements in an open meeting before this date or directed staff to research them?)

In the February issue Mayor Diana Longrie then wrote, "The council's Conservation Easement initiative is moving forward." Rebecca Cave had a column in the same issue, and promoted the upcoming conservation easements workshop, writing, "Anyone interested in learning more about how the City Council plans to protect our City Open Spaces permanently should come to this meeting." Again, before the council had actually looked at this issue in the workshop or taken any votes, as far as I can tell, Cave describes it as the "plan" that the Council will enact.

Cave and Longrie also mailed invitations, apparently with their own funds, to residents living near parks and neighborhood preserves.

At last, on April 9th, the council held a workshop on the topic. (You can read my detailed notes from the meeting.) At that time the direction Copeland seemed to be taking, without any formal vote or directive from the council, was to place easements on all of the city's parks and open space. When the representative of the Minnesota Land Trust suggested that doing that would take at least a year, Copeland narrowed the focus to just the neighborhood preserves, to have something that could be enacted on a shorter timetable (coincidentally, a timetable prior to the elections).

After laying all this groundwork, it came as no surprise when Rebecca Cave made conservation easements a centerpiece of her campaign ("THEY ARE NOT FOR SALE!"), along with spurious claims that her opponents want to sell the city's parks and neighborhood preserves.

Since the April workshop, the mayor has continued to promote conservation easements -- effectively campaigning for Cave -- in the taxpayer-funded city newsletter, in August and October. Ms. Cave did as well (in June). I don't know if they actually did it, but they at least planned for the city to produce a cable TV program promoting the idea as well.

(Let's keep in mind that, while keeping the drumbeat for conservation easements going, they also eliminated our Parks & Recreation Department and their city manager proposed a 72.8% cut in capital funding to parks.)

After more than a year of building up this campaign for conservation easements, linking it to Rebecca Cave, and stonewalling Will Rossbach, the council majority finally gave in to Rossbach's request for a public discussion of alternatives.

What do we find at the end of the discussion? Well, apparently conservation easements are not suitable for all of the Neighborhood Preserves; many of these alternatives cost little or nothing to put in place; and the protection provided by the other alternatives is actually more appropriate to many of the pieces of land at issue.

It sure seemed to me like at the end of the meeting both Mayor Longrie and Councilmember Cave were more or less agreeing with the position Councilmember Rossbach took all along -- that conservation easements might be appropriate for some neighborhood preserves, but probably not for all, and it was important to apply the right tools for each situation -- and they were claiming that this is what they really intended all along.

What to make of this? Like I said, it strikes me as another example of this council's bad policy process.

I suspect this all began with a political goal, to create a campaign issue for Rebecca Cave and manufacture a controversy. In order to put Rossbach on the record in opposition, it appears they needed to promote as extreme a version as possible at the beginning. Then, when Rossbach predictably stood up for common sense and reason and the not-so-crazy idea of looking at the alternatives before committing a lot of money to a specific course of action, they misrepresented his concerns to portray him as wanting to sell the city's open space. The campaign for easements had two key aspects: one was riling up fear and anger in neighborhoods (making people believe their neighborhood preserves and parks are threatened); the other was presenting Cave as essential to the only possible solution, with her commitment to conservation easements. In this way, the entire conservation easements "issue" has put the interests of the city behind the self-interested political agenda of the council majority.

As the high cost of actually enacting easements has become more apparent, as have the city's budgetary woes, the importance of actually putting the easements in place has waned for the council majority. But to my mind, the whole exercise (including the use of a lot of taxpayer dollars along the way) was a political gambit from the outset. I'm not even sure how much attention the council majority will have for the issue, once the election is past.

A better way, I believe, would have been to have an explanation of the problem that needs fixing, and a survey of the alternatives that might solve it, at the beginning. Explore the options, build consensus as you move forward, and settle on a course of action that has broad support and political investment, and public confidence that the best available option was chosen out in the open and the light of day. Building this kind of cooperative political will is not only a less-divisive way to govern, but it also makes for stronger and more-enduring policies. That's what Maplewood needs for a better future.

Labels: parks, process

Posted by John Nephew at 10/17/2007 11:05:00 AM | Permalink | Comments

One of the most intimidating things I faced when working on a plan to run for Maplewood City Council was the idea of fundraising. Whether we like it or not, money is part of politics, and it's a major challenge for every candidate.

A candidate's fundraising may give us a hint about how they will manage the public purse once in office. For example, do they spend their money effectively? Do they follow the rules, by turning in the required reports, complete and on time? Only three candidates and one organization involved in this race turned in their pre-primary campaign finance reports on time. I think the last couple of years of Maplewood governance have shown us some unfortunate examples of what can happen when people ignore the rules or skip reading the fine print.

Some may say that it's suspicious for a candidate to raise money from out of town. It's really not, if you think about it.

When you need to raise money for a campaign, you first go to the people you know. I do not have family in Maplewood (besides my wife, Michelle, of course), so all my contributions from family come from out of town, often out of state. Many of my friends also are not local; our business associates and customers are located all over the country.

These people gave me money not because they care about Maplewood, but because they trust and believe in me -- they believe I have the passion, the integrity, the honesty, and the competence to accomplish something good. They have known me for years, know how I treat people, know the ethical standards by which I have conducted my business with them and their peers. (You can read an earlier entry I wrote about some of these supporters.) There is nothing I can do in Maplewood city council that will benefit a game publisher in Seattle or a New York Times bestselling science fiction novelist in Arizona. Is it better for a candidate to have all their money come from local people who may have a personal or financial stake in the city council's decisions?

My fundraising demonstrates that I have an ability to lead, to bring people together for a higher purpose than their personal, selfish interests. Some people may try and convince you this is a bad thing. Perhaps they want candidates in office who owe them something.

I would suggest that my fundraising demonstrates exactly what you should want in a councilperson. Rather than making enemies of my business competitors, I made them into friends who respect me enough to give me money just for asking, for a city council race a thousand miles away. Heck, I even got a contribution from a former high school girlfriend. And as of that finance report turned in last week, I had received cash donations from 92 individuals -- not just maximum contributions from a handful of big donors.

Ask yourself, why do some other candidates not have a huge list of supporters who willingly gave them money just because they asked? Were they unpersuasive? Do the people who know them best not find them trustworthy? Were they just afraid to ask? And -- here's the big question -- are those the people you want representing Maplewood when it comes time to go to the county, state, or federal government, or anywhere else, and ask for money?

So if someone tries to frighten you by saying that I raised more money from out-of-state donors than most candidates in this race have raised in total, ask yourself -- is that really a bad thing?

Labels: campaign, process

Posted by John Nephew at 9/07/2007 09:46:00 AM | Permalink | Comments

This past Monday, the theater in the Maplewood Community Center was overflowing with citizens who turned out for this special meeting of the city council, to express both support and concerns about the proposed Planned Unit Development on the site of St. Paul's Monastery.

I offered a couple of lines of thought, both rooted in my perspective as a businessman. First, I wanted to focus attention on the fact that we were talking about the Benedictine sisters' private land. The proposed development is in harmony both with existing zoning and with the city's comprehensive land use plan. Thus, it seems to me that the hurdle is set very high, in terms of the public interest that must be served in order to outweigh the private landowners' property rights. Second, I wanted to speak to the importance of affordable housing as a public good, in helping working families better their own situation and become more secure and self-sufficient, which benefits all of us as taxpayers and fellow citizens. When non-profit organizations are stepping forward to provide this affordable housing in our community, it's an opportunity we should not miss.



Because one of the five members of the city council was absent from the meeting on account of illness, the vote was tabled until tomorrow night's regular council meeting.

Labels: process, video

Posted by John Nephew at 5/13/2007 11:44:00 AM | Permalink | Comments

Tonight I attended the meeting of Maplewood's Community Design Review Board. There were detailed discussions about plans to build a Costco, and to expand the Corner Kick Soccer Center. What stood out to me most, however, was a question raised by vice chair Matt Ledvina late in the meeting: What's up with the big LED billboard along I-494 in south Maplewood?

The story goes something like this: Clear Channel Communications applied for a permit to repair an old billboard along the freeway, and were granted it. However, instead of the simple repairs expected, the old billboard was replaced with a huge light-emitting diode (LED) screen, essentially a gigantic (175 square feet) flat screen television, which can have changing advertisements, animation, flashing images, etc.

They did the same thing in numerous metro suburbs, resulting in quite an outcry, legal actions, and moratoria. Neighbors in many communities object to the bright, shifting displays, and some in law enforcement are concerned about safety and driver distraction on our high-speed roads. Minnetonka disconnected the power to the two LED billboards in their city, and a court upheld their right to do so.

In the case of Maplewood, it seems to be a blatant violation of our existing billboard ordinance, which like Minnetonka's prohibits flashing signs. The city asked Clear Channel to apply for a variance. Clear Channel did not wish to do so, explaining that a variance would require a demonstration of unique hardship, which they did not believe they could provide. So the city gave them an alternative: this particular billboard already had some kind of special treatment in terms of setback or something, so Clear Channel could apply for a conditional use permit, and treat this as a modification of an existing special arrangement rather than a brand new variance.

According to a Lillie Papers article, Clear Channel was given February 27th as a deadline to apply for a variance in Maplewood. Perhaps they were given another deadline for a CUP application. In any case, the deadlines have come and gone, and no application has been submitted.

CDRB Chair Linda Olsen was enraged as she heard about how Clear Channel not only ignored city ordinance in the first place, but has disregarded the city's request for a CUP application, even as the city has bent over backwards to give them a chance to explain themselves and make their case for why they should be given an exception from city codes. The board discussed whether the city should even cut the sign's power, as Minnetonka has done.

Ledvina offered a motion requesting that the city council direct staff to resolve this matter quickly, which the board unanimously approved.

Our city manager, Mr. Copeland, is on the record saying "the benefits of the technology outweighed the initial lack of information." I hope he doesn't feel the benefits of the technology mean that Maplewood should just let it go when a big corporation not only flouts our ordinances, but turns up its nose when we go the extra mile to try and work with them and still maintain the integrity of the law. If Mr. Copeland thinks our billboard ordinance is outdated, he should argue his case to the city council to change it.

In the meantime, I think we may have an assignment for our new code enforcement officer.

Edit, 5/9 12:31 PM: Maplewood Voices found another good link to a Maplewood Review article about the billboard.

Labels: process

Posted by John Nephew at 5/08/2007 11:46:00 PM | Permalink | Comments

Every student of American history knows about the sign on President Truman's desk, which read, "The Buck Stops Here!" This slogan resonates with us in America. We like decisive leaders, and leaders who own their decisions. We don't care for leaders who dither, procrastinate, and prevaricate; nor do we like leaders who point the finger when their own decisions (or indecision) don't bring the good results hoped for. No one is perfect, but we all learn from our mistakes — and we wonder if someone who disowns his own errors, oversights and misjudgements can learn anything from them.

A recent entry in the blog of City Councilmember Will Rossbach calls our attention to the latest example of finger-pointing in our city government. A lower-level city employee has been formally reprimanded by the city manager for not knowing the legal requirements of the "60-day rule" for notifying a developer that an application was denied by the city council majority. The lack of this formal notice is a key issue in CoPar's lawsuit against Maplewood; it might be the issue on which the whole decision turns. Rather than accepting responsibility for the city's error, city manager Copeland passed the buck, placing the blame on an underling.

After mulling over the situation, Rossbach suggests that perhaps letters of reprimand should be added to the files of all the managers above this individual, including the city manager. I think Will stops one step short. The city council majority is due a harsh reprimand as well.

Even if you excuse Cave, Hjelle and Longrie their personal ignorance of the statute's requirements in this situation (which is perfectly understandable), this council majority can't duck responsibility for selecting Copeland as city manager and Kantrud as city attorney. Those two direct council appointees are responsible for supervising the lower-level staff and advising the city on its legal obligations. Competence in those offices would make any alleged neglect by lower-level city officials in this case irrelevant. The city manager should have put a written statement on the agenda for the following meeting for the council to formally approve. When he failed to do so, the city attorney should have brought the omission to the council's attention, since it's his job to know the law and provide such legal guidance to the council.

Perhaps some people on staff knew what needed to be done, but were afraid to stick their necks out by, in effect, telling the city manager how to do his job. (Remember how the human resources director was fired last year after insisting that the city obey its own ordinances with regard to a mandatory background check.) If this were the case, I still think the ultimate responsibility falls upon the city council majority and their appointed manager, whose approach to governance has made the atmosphere in city hall so poisonous over the past year.

The importance of a professional city manager is most clear not in the day-to-day matters, where any old person might do, but in the marginal cases where a reservoir of experience and knowledge keeps the city from even getting into problems like this in the first place.

I've already suggested that Maplewood needs to replace the current city manager with a qualified, competent professional. This is yet another example where Copeland's inexperience and lack of qualifications in running a city is failing both Maplewood and even the council majority that appointed him.

The city council has the power to remove the city manager, as they did his predecessor. However, at every step so far, Cave, Longrie and Hjelle have reaffirmed their support of Mr. Copeland. They did so with a vote of confidence after reviewing his background check (which clearly showed his lack of qualifications); they did it again with the 2 AM vote to cancel the search for a professional manager and install Copeland permanently (a vote which took place after this CoPar notification was botched, and at a point when it was becoming clear even to outside observers that Copeland's budgetary process was a mess).

In May the council will be reviewing Mr. Copeland's performance. Will he be held accountable for his failures? Or will it be up to the voters in November to bring accountability to City Hall?

Labels: process

Posted by John Nephew at 4/30/2007 11:26:00 PM | Permalink | Comments

I have not heard yet heard if the district court will issue a writ of mandamus to force the city of Maplewood to comply with the order of the Police Civil Service Commission to reinstate John Banick as a Lieutenant.

Not being a lawyer, I can't judge the nuance of the law when it comes the proper issuance of a writ of mandamus. Out of my own self-interest as a resident of Maplewood, I hope that Banick's attorney's interpretation of the law is correct. Reinstating Banick would not only be just and uphold the proper role of the PCSC, it would save the city money. Remember, we are hiring four new police officers plus a “public safety director” über-manager this year. Reinstating Banick would just mean hiring three new officers instead of four. The sooner we do it the less back pay we'll be coughing up for time that Banick hasn't been on the job; and the safer our city will be, as we will immediately have another officer on the force. This all seems more important to me than defending the pride and personal revenge agendas of the city manager and council majority.

In January, the judge did say that the termination of Banick appeared improper, since it did not involve the PCSC, regardless of whether or not it was retaliatory; that leads me to believe that the city's arguments about the PCSC having no jurisdiction don't hold a lot of water — they are hanging on a technicality to delay the wheels of justice. Even if Judge Mott agrees with the city that a writ of mandamus is not the appropriate means to enforce the PCSC's decision, that won't be the end of this story. There is too much at stake here. If the city's arguments stand, the role of the commission is gutted, and this would set a precedent with implications far beyond Maplewood.

The city argues that by reinstating Banick as a lieutenant, the PCSC is essentially reorganizing the police department and creating a new lieutenant position, thus usurping the city council's inherent managerial authority. In practice, there would be a reshuffling based on seniority (moving a junior lieutenant to sargeant, a sargeant to patrol officer, and, in our present circumstances, hiring three instead of four new patrol officers this year). The PCSC has not had a chance to follow through on those personnel shifts.

Consider the logical implications of the city's argument. Not only would the PCSC not be able to issue this order in the Banick situation (to reinstate an officer improperly terminated); other PCSC actions actions would be invalidated as well. For example, in a past case cited in the PCSC's order, the commission demoted a police chief to his previous rank of sergeant. Following the logic of the city's current legal argument, the commission had no right to do so because they were effectively creating a new sargeant position, just as in this case they would allegedly be creating a new lieutenant's position.

Again, whether or not there was an open position at the lower level to which an officer was demoted, the PCSC should be able to rearrange others according to seniority to open a position at the appropriate rank; and, if necessary, it could lay off the officer in the department with the least seniority. The city is either pretending ignorance of the PCSC's authority to reassign individuals to different jobs in the department in this manner — or, more likely, it is denying that the PCSC has such authority at all.

In other words, the city seeks to destroy the Police Civil Service Commission as it has heretofore existed. The current city administration is arguing for the PCSC to exist as merely an advisory board, providing an illusion of resident involvement, with all of its decisions subject to review and reversal (or simply to be ignored) if it should please the city manager and city council majority.

Actually dissolving the PCSC would require (according to Minnesota law) either a unanimous decision of the city council or a referendum of the city's voters. Since neither of those is going to happen, the council majority is trying an end run around the law to eliminate a troublesome check against the unfettered exercise of power to which they feel entitled.

Labels: PCSC, process

Posted by John Nephew at 4/03/2007 07:09:00 PM | Permalink

Yesterday afternoon I went to the Ramsey County Courthouse to watch arguments over a couple of motions in the case of John Banick et al. v. Maplewood.

One motion was to amend the complaint to add additional parties — joining Banick and the Maplewood Confidential & Supervisory Association will be the Metro Supervisory Association, which is another city employee bargaining unit. Apparently four other individuals have expressed interest in joining the suit as well, while yet another individual who was expected to join the suit has reached a separate settlement with the city.

The more contentious motion was a request for a writ of mandamus. On the face, it's pretty simple. At their meeting on February 5th, the Police Civil Service Commission ordered that Banick be reinstated as an employee of the Maplewood Police Department. The city refuses to recognize the authority of the PCSC to issue that order. Thus, Robert Fowler (Banick's attorney) asked the District Court to compel the city to execute the PCSC's decision.

Not surprisingly, the city asked the court to turn down Fowler's request. Pam VanderWiel, the city's lead attorney for this case, presented two sorts of arguments. The first was that a writ of mandamus was procedurally inappropriate (the city argued that mandamus should not be requested as a motion in an ongoing action, and in addition that the requirements for mandamus are not met in this case). The second group of arguments concerned the substance of the PCSC's action (namely, the city's contention that the PCSC lacks the authority to do what it did).

At the start of her argument to the court, VanderWiel invoked a phrase that I remembered her using at the January 16th TRO hearing as well: separation of powers. She characterized a writ of mandamus as an extraordinary action that would threaten our constitutional separation of powers by having the court meddle with the executive branch of the city.

This argument is, with all due respect, bogus. The logical end of this argument is that no court should ever have the power to overrule any decision of any executive branch, on the grounds that it would violate the separation of powers for one branch to overrule to decisions of another. However, that's clearly absurd; the point of separation of powers is not to establish three sovereign and insular governments over these same United States; it is to establish independent yet interrelated branches that check and balance each other, so that the rule of law can be upheld when one branch oversteps its bounds.

In the case of Maplewood's city government, we have a city council that effectively is both executive and legislative — creating the ordinances and policies and enforcing them. The PCSC holds a curious position in this separation of powers. Like many courts, it is filled with appointees who have been confirmed by another branch of government (the city council appoints its members for definite terms of service). It considers disciplinary cases and can issue judgments and penalties (such as demoting a police officer). Also like a lower court, its decisions are subject to appeal — and those appeals are not decided by the city council, nor even by the district court, but rather by the Court of Appeals. The PCSC is a court of record, in terms of creating a judicial record that an appelate court can review. Thus, within its narrow purview (personnel matters in the police department), the PCSC functions as the judicial branch of Maplewood city government.

So it seems to me that separation of powers is very much the issue at stake, but not in the way that the city has argued. The majority that controls the hybrid legislative-executive branch of Maplewood has decided not to follow the decision of this court of record because the council majority doesn't like it. (They also decided petulantly not to reappoint one of the three PCSC members, even though there were no other legally qualified applicants to fill the seat.) Rather than appealing the PCSC's decision to an appelate court, they decided just to ignore it. If this were on a different scale of government (like when Andrew Jackson simply refused to enforce the U.S. Supreme Court's Worcester v. Georgia decision, leading to the tragic and infamous Trail of Tears), we would call this a "constitutional crisis."

I guess in the context of Maplewood under our current council majority, this is now just business as usual.

Labels: PCSC, process

Posted by John Nephew at 3/28/2007 08:49:00 AM | Permalink | Comments

This past Thursday morning (March 1), the city council held a retreat at the Gladstone fire station. It was an open meeting (as required by law, since a quorum was present and they were discussing city business), but the idea was for the council get together in a more informal setting to hash out some of their issues -- sitting around a table, rather than in the environment of the council chambers with cameras and all. The meeting began at 8:00 AM, but I didn't arrive until a little after 9:00. Present were Mayor Diana Longrie; councilpersons Will Rossbach, Rebecca Cave, and Erik Hjelle; and city staffers Greg Copeland and Karen Guilfoyle. Two observers were present — yours truly and Paul Demko, a reporter from City Pages who is working on an article about Maplewood. Kathy Juenemann was not there, due to a scheduling conflict.

Late in the meeting, the subject turned to Gladstone, where the comprehensive plan amendment recently failed (it requires a 4-person supermajority, but only got 3 votes). Partway through this discussion, Mayor Longrie had to leave for a conference call. I think credit really has to go to Hjelle, Cave and Rossbach for hashing things out and really listening to one another. Hjelle asked Rossbach to explain his issues with the current Gladstone master plan, to see if compromise could be achieved. Rossbach took the opportunity to articulate some of his concerns about urban planning in general and Gladstone in particular, and said he was trying to lay a good foundation for redevelopment in the neighborhood 50-100 years into the future. Ultimately, they found that they were not so far apart after all — the changes that Rossbach wanted did not pose a problem for Cave and Hjelle. In turn, Rossbach accepted the changes recommended by the Planning Commission which the council majority had already endorsed.

This is not a "done deal," however; as I said, the mayor had to leave before the discussion came to its conclusion, and Juenemann was not present. At least one of them will also have to sign on to the compromise for it to take effect, since four votes are still needed for a comp plan amendment. It's even possible that the vote could be unanimous.

A similar council retreat is planned for April, if I heard correctly.

Labels: process

Posted by John Nephew at 3/04/2007 03:59:00 PM | Permalink

What's going on with Gladstone and tax increment financing? The council majority is sending contradictory signals to two different groups. On the one hand, some citizens who oppose the use of TIF have been reassured at various times that it's off the table. On the other, the development plan for the Lake Phalen Estates (the former site of the Saint Paul Tourist Cabins) is structured around a significant amount of TIF money, and the council has been unwilling to come out and tell the developer to draw up plans that don't assume some public money.

Someone is being misled. Is it the citizens or the developer?

Last summer, council member Erik Hjelle voiced a clear position on TIF. He wrote (you can find this in the council packet of the 6/26/06 workshop, page 97):

Tourist cabins. I will not support any TIF for this project. A builder/developer should not need any enticements to build on lakeshore that is 10 minutes from downtown. This is not negotiable for me.

In an August 8th commentary in the Maplewood-Ramsey County Review, Hjelle rejected claims that Gladstone redevelopment was in limbo. He touted the plan for the cabins site as “a proposal to build a 150+ unit Class A development at the St. Paul Tourist Cabin site with $0 public financing.” And again Hjelle touted the no-public-subsidy aspect of the project in the City News of September 2006.

At the Mayor's Forum on February 3rd, one of the mayor's supporters asked if there would be a taxpayer subsidy for this development. Mayor Longrie said there was no tax increment financing approved for it. City Manager Copeland said an application for TIF had been received, and would be reviewed at an upcoming council workshop.

I made a data practices request to the City of Maplewood to get a copy of the audio recording, to make sure I got her words right. Here is what she said:

He can certainly apply. I mean, we haven't said that nobody can apply. I mean, anybody can apply. But one of the guiding principles of the Gladstone redevelopment plan was indeed that TIF was not encouraged or looked upon favorably. So that was one of the guiding principles that the council also voted on, so I mean that gives you an idea of, I mean, there's always, with anything there's always, you know, people can present proposals, and we look at our guiding principles that we've already enacted and what is our public policy. And certainly I can tell you that my public policy, from my perspective, is that I think being ten minutes from the capitol – gosh, that's prime land all by itself. It doesn't need my help. But that's just me.

(You can download an audio clip of the mayor saying this — it's an MP3 file, about 1 MB).

While she parsed her words very carefully, the mayor left forum attendees with a sense of reassurance that TIF was not going to be used on this project. At the least, she implied that she opposed TIF for this specific development.

Two days later, the developer in question was in front of the council for a workshop. Numerous times and in several different ways, the developer and city staff gave the council an opportunity to express their principles and public policy philosophy when it came to TIF and this project. Each time, the mayor evaded the question. She repeatedly said that the council doesn't take action at workshops, but what the developer wanted was not a decision but rather a frank discussion of the public policy values of the council members in this open meeting.

Someone is being misled. Either it is the citizens, who are being reassured that taxpayer dollars won't be spent to subsidize this project on lakefront property so close to the heart of the metro; or it's the developer, who is being asked to invest thousands in a study and much more in planning, working from a blueprint that assumes some level of assistance from TIF.

It seems to me that this is the wrong way to govern. If you have concluded, a priori, that a plan on this site should be able to succeed without TIF, why not be straight with the developer? Tell him the truth up front, and let him build his financial plan around that reality. Don't lead him to waste a whole lot of money preparing a course of action that would require you to violate your policy principles.

On the other hand, if the council majority is truly open to TIF — as opposed to just worrying that if they say no, they might scare the developer away and lose the $1.8 million Met Council grant they are so proud of, or the park fees from the development that are earmarked for the Gladstone Savannah — then they should spend some time acting like leaders, persuading the public that it's an idea worth considering. Then, if they do decide to create a TIF district, it won't come as a shock to people who have been promised that it will never happen.

Labels: process, TIF

Posted by John Nephew at 2/23/2007 08:57:00 AM | Permalink

One of the council majority's gravest mistakes of the past year, in my opinion, was the firing of Deputy Police Chief John Banick. This action not only displays a disregard for process, it constitutes an attack on the institutional checks-and-balances of city government.

State law grants Police Civil Service Commissions authority over the hiring, promotion, discipline, and termination of police department employees. While the city council sets the budget and organization of the department, it is prevented from making decisions about which specific individuals are promoted, demoted, hired, or fired.

The obvious purpose of this is to insulate law enforcement from political pressures. Imagine a city where every police officer knew his job was directly subject to the city council. In most cases, people would do the right thing and this wouldn't matter. But in some cases, a police officer might feel pressured not to enforce the law in one situation (say, not to arrest a friend or relative of a council member), or to overstep his authority in another (perhaps to harass an opponent of the council majority). The state has wisely defined the role of Police Civil Service Commissions to assure citizens that the police will enforce the law equally on all.

The current Maplewood regime has decided they stand above that law. In their view, as argued by their attorneys, the council's authority to manage the city's budget and organization trumps the PCSC. There was only one position in the department with the deputy chief's pay grade. Thus, the city said that their reorganization meant that he in specific had to be terminated, and the PCSC was irrelevant.

Why would they want to remove this specific officer? I attended a court hearing in January about this case. At the hearing, Banick's attorney argued that the firing was retaliatory. Among other things, Banick had been assigned to conduct the background check on the city manager, Mr. Copeland, who was nominated by the mayor and approved by the council majority. This background check raised questions about Mr. Copeland's suitability for his job, and thus embarassed the council majority and Mr. Copeland. (Some of that report is in the public record, and can be found at Maplewood Voices.) If what Banick's lawsuit alleges is true, this is exactly the kind of situation that the PCSC was created to prevent — retaliation against a police officer for doing his job, when the results were not what the current political regime wants.

The president of the Minnesota Fraternal Order of Police regards this situation as so serious that he wrote to the Maplewood Police Civil Service Commision, saying his organization is "committed to expending vast resources in support of his case at the state and national level should that become necessary." If this precedent allows city politicians to circumvent a PCSC and fire specific officers by means of budgets and reorganizations, it is a threat to police officers everywhere who are committed to applying the law with an even hand.

The judge at the hearing in January observed that, regardless of whether it was retaliatory, it seemed obvious that Banick termination was improper, because it did not respect the process for handling police personnel matters set down by law. (Indeed, since then the PCSC met and ordered the city to reinstate Banick in the department at a lower rank.) This gives me hope that common sense will prevail, the council majority's ill-considered action will be overturned in court, and the role of the Police Civil Service Commission will be reaffirmed.

Still, that leaves us with a council majority that took this path, in spite of warnings; defended their action; and remains defiant even today, as far as I can tell, refusing to acknowledge the PCSC's authority. I don't know if they'll have the sense to settle the matter rather than fighting in court to the bitter end. What I do know is that we need a new council majority with the common sense to respect the law, understand the limits of their own power, and not lead our city down a path like this in the first place.

Labels: PCSC, process

Posted by John Nephew at 2/20/2007 06:50:00 PM | Permalink

At the December 11th, 2006, city council meeting, I spoke twice. I didn't go to the meeting with any plan to talk — these comments were just provoked by events at the meeting. The clip below, my first trip to the podium, took place during visitor presentations.

The first visitor to speak that evening had been an attorney, warning that the council's planned action, to fire his client (a highly respected, 20+ year veteran of the police force) simply by eliminating his position in the 2007 budget, ran afoul of state law and civil service protections. When he offered to respond to any questions from the council (since the budget was up for a vote this evening), the mayor told him, "We don't have exchange of dialogue at visitor presentations."

This was a rule I had never heard before. In fact, I had witnessed dialogue in the visitor presentations at many previous council meetings. I even had notes on my laptop from some of those meetings, recording who the dialogue was with and what it was about.

Obviously, this attorney raised uncomfortable issues and the council majority didn't want to talk with him. So Mayor Logrie pulled a new rule out of thin air and used it to send him away, or she dredged up a previously ignored rule and decided to enforce it just then because it suited her.

There are two things that really bugged me about this.

First, creating or enforcing rules in this kind of arbitrary manner offends my notion of the rule of law and a basic respect for process. We have enshrined in our Constitution (Article I, Section 9, paragraph 3) that "No Bill of Attainder or ex post facto Law will be passed." You don't make up rules after the fact, and you don't make up rules to single out and punish a specific individual. And you shouldn't enforce rules only on the people you don't like.

Second, this was completely unnecessary! The mayor could have said, "We choose not to respond to you." Simple! Instead, she conjured a hitherto unknown rule, as though to persuade the audience that she's as much a victim of circumstances as this attorney and his client.

This incident may seem trivial. Unfortunately, it illustrates a pattern we have seen repeatedly with this council majority — making up, selectively enforcing, or misinterpreting rules so that they can feign helplessness while enacting their agenda. They also have a related talent for ignoring rules, like those civil service laws, when the constraints don't suit their purposes.

Anyhow, I decided to call attention to the novelty of this rule, and suggest that if it is indeed a rule they should formalize it and apply it to everyone.

Then I discussed a completely different topic — a very misleading salary "study" that the city manager had published in the November city newsletter. He felt compelled to publish the salaries of half of the members of a newly formed city employee bargaining unit, the Maplewood Confidential and Supervisory Association. The speaker before me had waved a copy of this article, while expressing outrage at the salaries and apparently huge increases demanded by this new union. I believe the city manager was trying to elicit citizen outrage like this, to use against the city employees who had recently asserted their right to organize.

There were all kinds of things wrong with this deceptive work of propaganda (note, if you look at the fine print, that the table compares salary alone in 2006 to salary plus benefits in 2007, for example). I wanted to focus on one simple and amusing observation — that its big claim is basically that half of this group of employees had above-average salaries. How surprising is that?

Labels: PCSC,