Chapter Six Governance: The Decision‐Making Process

§ 6‐1. Overview

Conducting town business involves everything from following legal procedures to expressing personal values in the decisions one makes. Inside this chapter This chapter attempts to identify the major elements of the decision‐ making process. The goal is to set out a structure supervisors can use 6‐1 Overview…………………….………35 when undertaking their duty to make decisions on behalf of the 6‐2 Decision‐Making Authority….35 town. However, no attempt will be made to identify or discuss the 6‐3 Parliamentary Procedure…....36 subtleties involved with evaluating a situation to reach a decision in a set of circumstances. 6‐4 Types of Meetings……………….36 A. Town Board Meeting..………..36 § 6‐2. Decision‐Making Authority B. Town Hearing………..………….36 C. Annual Town Meeting...….….37 All oficers have powers that allow them to carry out their duties. 6‐5 Annual Town Meeting versus Annual Town ……………....38 However, only the supervisors constitute the town board and have the authority to act on behalf of the town to make decisions and set 6‐6 Methods of Taking Action…...38 policy. As stated earlier, the town treasurer and the town clerk do A. Motions……………………. ……..38 not have the authority to vote on matters before the board, or to vote B. Resolution ………………………..38 to break a tie vote among the supervisors. It must also be remem‐ C. Ordinances ……………….………39 bered the power to act on behalf of the town is vested in the board, 6‐7 Decision‐Making Powers .…....40 not the individual supervisors. Each supervisor has the power to vote on matters coming before the board, but only a majority can decide matters for the board.

2017 Manual on Town Government Association of Townships 35 § 6‐3. Parliamentary Procedure

Parliamentary rules are a set of rules that always agree and town boards are not obli‐ govern how a deliberative assembly carries gated to adopt any one set of rules. out its business. A board may choose to collect rules from The statutes do not obligate town boards to several sources and tailor them to facilitate follow a set of rules and, in fact, are almost the eficient running of their meetings. This completely silent on the issue of parliamen‐ may mean writing their own rules such as tary procedure. Although Robert’s Rules of for regulating public input at board meet‐ Order most often springs to mind when one ings. Decisions regarding the scope and mentions parliamentary procedure, it is only types of rules adopted must be carefully one of many sets of rules that can be fol‐ weighed for each board. Only Supervisors lowed. The various sources of rules do not are responsible for adopting parliamentary rules.

Refer to Document Number TM3000 for addional informaon on parliamentary procedure and Docu- ment Number TM7000 for a sample administrave policy that includes a simple set of parliamentary rules.

§ 6‐4. Types of Meetings To exercise the power given the town, the See Document Number TM2100 for infor‐ board must be in the proper forum to make mation on conducting and controlling town decisions. Most decisions are made at regu‐ board meetings. lar board meetings. However, the statutes B. Town Hearings granting the authority may indicate that a different procedure be followed to exercise Townships hearings are essentially of two the power. For example, a board must hold a types: (1) those required as part of a statu‐ hearing as part of undertaking a special as‐ tory procedure (referred to here as sessment project or to create a subordinate “statutory hearings”); and (2) those con‐ service district. There are three most com‐ ducted merely to exchange information mon meetings: Town Board Meeting, Town (referred to here as “informational hear‐ Hearings and Annual Town Meeting. ings”). Even though both types of hearings involve the exchange of information, the dif‐ A. Town Board Meeting ferences between them are important. Town boards conduct most business at what Statutory hearings are a vital part of carry‐ is called a board meeting. Most hold ing out the statutory process to which they one board meeting a month to pay any relate. Examples of processes requiring a claims (bills) and to conduct the town’s busi‐ hearing, or the right to a hearing, include: ness.  the special assessment procedure; The board conducts the business of the town  adoption and amendment of zoning or‐ at board meetings and only the supervisors dinances; the tree removal procedure; (including the chair) are authorized to make, and second, and vote on motions. The town  road and cartway establishment, altera‐ board chair, as the presiding oficer, is re‐ tion, and vacations. sponsible for conducting the meeting and Without a properly conducted hearing or enforcing parliamentary rules adopted by fair access to a hearing, these processes the board. Boards must also follow the re‐ would fail for a lack of due process, required quirements of the open meeting law. Minn. under the Constitutions of both Minnesota Stat. Chap. 13D. (Discussed in Chapter 7)

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2017 Manual on Town Government Minnesota Association of Townships and the . As such, the need to care‐ C. Annual Town Meeting fully follow the correct procedure in calling and The Annual Town Meeting occurs on the sec‐ holding a statutory hearing is extremely im‐ ond Tuesday in March. A town elector is some‐ portant. one who resides in the town and is eligible to It is possible for a local ordinance to require a vote at the town election. Town electors hearing. In these cases, the procedure provided (including town oficers and the moderator) in the ordinance is followed as if it were a stat‐ are authorized to make motions and vote, but utory procedure. Since ordinance hearings are anyone one else can attend the meeting and conducted with the same formalities as statuto‐ speak. The moderator is the presiding oficer ry hearings, they will not be discussed sepa‐ for town meetings and so is responsible for rately in this chapter. running the meeting and upholding parliamen‐ Informational hearings, on the other hand, are tary procedure, which is adopted by the elec‐ not part of a statutory procedure. These hear‐ tors. ings can be called anytime, with suficient no‐ Unlike other public meetings, the tice, to discuss any item of town business. In‐ has established some parliamentary rules for formational hearings serve two purposes: annual and special town meetings that towns (1) to provide information to the public; and must follow: (2) to allow the board to receive comments and 1. the clerk calls the meeting to order within information from community residents. one hour of when the meeting is to con‐ A hearing seeking input on whether the town vene (Minn. Stat. § 365.54, subd. 2); should begin zoning activities is an example 2. a moderator is selected by the electors at the meeting and is required to state the of an informational hearing. The information‐ order of business for the meeting (Minn. al hearing would provide information about Stat. § 365.56, subd. 1); the costs and beneits of local zoning, and al‐ 3. a proposition to vote on a tax must not be low public comments on the idea. acted on out of the order of business stat‐ ed by the moderator (Minn. Stat. § 365.56, Because the statute does not control informa‐ subd. 3; tional hearings, there are no set procedural 4. a motion to reconsider a vote must be standards that must be followed to call these made within one‐half hour of the vote and hearings other than compliance with the open be favored by a majority of the electors meeting law. However, boards should conduct entered on the election register when the informational hearings using the same basic motion is made (Minn. Stat. § 365.56, procedures followed when conducting statuto‐ subd. 4); ry hearings. 5. all questions on motions except a motion Boards have the authority to establish proce‐ to reconsider are decided by a majority of dural rules for their hearings. The fundamental the electors voting on the question (Minn. purpose of informational hearings is to afford Stat. § 365.56, subd. 5); and due process to interested parties by allowing 6. the moderator shall decide and declare them the opportunity to speak on the issue in the vote on each question (Minn. Stat. question. The balancing consideration is that an § 365.56, subd. 6). orderly process must be maintained so all sides See Document TM 6000 for a checklist when to an issue can be heard and the board has an preparing for the Annual Meeting. opportunity to deliberate and reach a decision If rules are adopted, they may not be incon‐ on the matter. sistent with those set by statute. Furthermore, Refer to Document Number TM1000 for addi‐ at an elector meeting, the supervisors are not tional information on town hearings. sitting in their oficial capacity and may not ex‐ ercise board authority.

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2017 Manual on Town Government Minnesota Association of Townships § 6.5 Annual Town Meeting versus Annual Town Election Determining which items of business must be speciic authority from the electors, it is advis‐ acted on at the annual town meeting versus able to draft the language for the motion be‐ the annual town election can be dificult. Part fore the meeting or submit a resolution for of this dificulty stems from a time in the past elector consideration. when the town meeting and the election were Ballot questions regarding town business held as part of the annual meeting. As a result, should be asked at the town election. As part some statutes do not clearly distinguish be‐ of the election process, there are very speciic tween the activities meant to occur at the an‐ requirements regarding the preparation and nual town meeting versus the town election. handling of the ballots. Furthermore, the elec‐ As a rule of thumb, if the statute refers to ask‐ tion is not to be used to ask advisory ques‐ ing a question by ballot of the town electors, tions, which are questions on issues that are the question should be submitted at the elec‐ not within the authority of the electors to act tion. However, if the statute just refers to on. receiving elector authorization at the annual In some cases, the wording of the questions meeting, then the issue may be raised at the towns may ask by ballot is set out in the stat‐ town meeting. Also, any item of business that ute requiring a vote. In other cases, it is up to is appropriate to handle at the annual town the board, with the advice of its attorney, to meeting can also be handled at a properly develop the wording of the question and the called special town meeting. Minn. Stat. title. As with all parts of the election process, § 365.52, subd. 1. boards must be very careful with ballot ques‐ Unless the statute requires the electors to act tions. If the board is considering asking a bal‐ in a particular form, such as by resolution, lot question at its election, the process should then a motion made and passed at the meeting begin months before the election in order to is usually suficient to constitute elector au‐ give suficient time to satisfy the applicable thorization. However, if the board is seeking requirements. § 6‐6. Method of Taking Action: Motions, Resolutions & Ordinances Deciding the method for taking a particular ac‐ Every supervisor, including the chair, can make, tion ranges from the obvious to the uncertain. second, and vote on motions. The exceptions For example, some statutes require certain are if the supervisor is absent from the meeting powers be exercised by ordinance, (a supervisor may only vote if present at the but in other cases no method is speciied. When meeting), or if the supervisor has chosen to ab‐ the statute is silent, boards must decide which stain because of a conlict of interest. method for acting is the most appropriate. B. Resolutions A. Motions A more formal way of taking an action is to de‐ The motion is the workhorse of local decision velop a resolution. “Technically, a resolution is a making. They are used to act on mundane items formal expression of the will or settled decision as well as the important or controversial ones. of a deliberative assembly...” Lindahl v. Inde- Even if the board is adopting an ordinance, the pendent School Dist. No. 306 of Hubbard Co., 133 adoption is acted upon by motion. Motions nor‐ N.W.2d (Minn. 1965). mally take the form of a supervisor saying, “I Robert’s Rules of Order refers to resolutions as move that we adopt the treasurer’s report as the form in which long or complex main mo‐ presented” or “I make a motion to...” Another tions are often offered. R’ R O‐ supervisor seconds the motion, the chair asks N R § 10, 100‐106 (Henry M. for discussion, and then a vote is taken. Robert III et al. eds., 10th ed. 2000). In other 38

2017 Manual on Town Government Minnesota Association of Townships words, a resolution is essentially a formal ex‐ one resolved statement may be used in a reso‐ pression of a main motion made in writing. lution. Finally, a resolution should also contain Boards should keep in mind that the content a title, resolution number, date of adoption, of resolutions can vary dramatically – from how each supervisor voted, signature line for ceremonial acts such as recognizing the efforts the chair, and a line for the clerk to attest the of a volunteer, to legislative acts such as estab‐ resolution. lishing permitting procedures for installing Statutes do not prescribe the actual form of a additional road approaches. resolution. Although a reso‐ The term “resolution” is Examples of acons that must be taken lution is usually described in more a description of the by resoluon include: terms of its form rather than  designang a minimum- form of the action rather its content, judicial review maintenance road (Minn. Stat. than its content. of resolutions has focused § 160.095); Depending on the statutory  designang a rusc road (Minn. on their content. In Lindahl, power being exercised, act‐ Stat. § 160.83); the court found an oral mo‐ ing by resolution may be  exnguishing an interest in an tion suficient to satisfy a required, be a very good abandoned road (Minn. Stat. statute requiring the action idea, or just an option avail‐ § 164.06, subd. 2); to be taken by resolution. able to the board. A resolu‐  designang polling place hours Lindahl, 577 N.W.6d at 6⁰ . tion must be used when the (Minn. Stat. § 205.175, subd. 3); (“Generally, where the stat‐ law requires it (i.e., statute and ute requires a resolution, or rule). A resolution should  approving a contract under an ex- any oficial action, though be used, for example, when: cepon to the conflict of not in form a resolution, expressing a formal posi‐ interest prohibion (Minn. Stat. may be one in legal effect.”) tion of the board; establish‐ § 471.89). Id. Despite this flexibility, ing policies, procedures, or boards should strive to speciications not enacted by ordinance; or place resolutions in proper form. making commemorations. C. Ordinances A resolution may be used, for example, to: Adopting an ordinance is the most formal  designate a polling place (Minn. Stat. method for acting. When a board adopts an § 204B.16); ordinance, it is enacting a local law. Not all or‐  designate a bicycle lane (Minn. Stat. dinances are regulatory in nature, but they are § 160.263); legally more signiicant than resolutions or  or set forth an action on a complex matter. motions. A resolution typically contains a preamble and There are usually two sets of requirements a resolution statement or statements. The pre‐ related to adopting an ordinance. The irst are amble statements start with “Whereas,” and the requirements in the statute authorizing they provide the background, authority, and the town to adopt the ordinance. These re‐ reasons for the decision. While resolutions are quirements are determined by looking at the not required to have a preamble, a properly statute itself to see if it contains speciic lan‐ worded preamble can add valuable context to guage on the process to adopt the ordinance. the action. Preambles should be succinct, yet The second are the ordinance formality re‐ suficiently detailed to give an uninformed quirements in Minn. Stat. § 365.125 that apply reader a basic framework for the context and to the adoption of all town ordinances as well authority for the board’s decision. The resolu‐ as other statutes that speak to when ordinanc‐ tion itself is a statement describing the board’s es must be iled. See § 5-7. action/decision and is preceded by the words “Now, Therefore, Be It Resolved.” More than

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2017 Manual on Town Government Minnesota Association of Townships § 6. 7 Decision‐Making Powers

Nothing a town board of supervisors does is other, in its decision‐making process. The both as simple and dificult as making deci‐ claims raised in these suits range from asser‐ sions. Anyone who has had the responsibility tions the board lacked the authority to make to vote on a controversial issue knows it is not the decision to claims the board’s decision was nearly as simple as merely saying yes or no. arbitrary and capricious. While there are no tricks for making the deci‐ For the purposes of this discussion, “decision” sion making process any easier, understanding is used broadly to encompass the entire pro‐ the structure behind the statutory authority to cess involved in the board making up its col‐ make decisions can greatly reduce some of the lective mind on a matter. The following are uncertainty and possible legal challenges that common elements of the decision‐making pro‐ could result. cess boards should consider to develop a bet‐ Many of the lawsuits brought against towns ter understanding of the types of issues raised allege that the board failed, in one way or an‐ when their decisions are challenged.

1. Does statutory authority exist for this deci- cise of statutory authority. It is also very im- sion? As a creaon of the Legislature, towns portant to idenfy the other statutes that may can only exercise those powers given them by apply to making a parcular decision. the Legislature. Therefore, it is vital for boards 2. Is the board in a posion to exercise the au- to be able to idenfy the statutory authority for thority? Some decisions can only be made at a a proposed decision. In some cases, the Legisla- parcular me in a sequence of events. For ex- ture has provided very specific authority to ample, the decision to specially assess the costs make a specific type of decision. In others, the of a road improvement project under the au- Legislature has granted general authority and thority provided in Minn. Stat. Chap. 429 must, has le it to the discreon of the boards to ex- for the most part, be made in the inial stages of the project. Also, the decision to exercise the ercise the authority appropriately in a given contracng authority to enter into a $110,000 situaon. contract (for example) can only occur aer the a. Is the decision mandated by statute? board has sasfied the sealed bid requirements Occasionally, the legislave grant of authority of the municipal contracng law. Minn. Stat. § comes in the form of a mandate. In these cas- 471.345. es, the Legislature has removed, or significant- 3. Is elector authorizaon needed to exercise the ly limited, local discreon and has ordered the authority? The need to have the town electors to act a certain way in a involved in the decision-making process is cen- given situaon. For instance, if a town board tral to the township form of government. While receives a properly completed peon for the boards are not required to seek elector authori- establishment of a cartway to access land- zaon for all decisions, some statutes require locked property, Minn. Stat. § 164.08, subd. 2 such authority before the board is allowed to indicates the board must establish the cart- make a decision. way. a. What type of elector authorizaon is need- b. What is required to exercise the authority? ed? Town electors can take acon either at a Boards must look carefully at the statute town meeng or at a town elecon. Some granng the authority in order to determine statutes require elector authorizaon to come what is specifically required in order to exer- in the form of a ballot vote at a town elecon. cise the authority. Many of the quesons that Other statutes permit the authorizaon to follow are intended to highlight the types of occur at a town meeng with a simple voice requirements that may accompany the exer- vote. Sll others require the authorizaon to

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2017 Manual on Town Government Minnesota Association of Townships come in the form of a resoluon passed by board to record its reasons for making the de- the electors at a town meeng. Always look cision in the record (minutes) of the meeng carefully for the type of authorizaon re- or hearing as part of making the decision. Any- quired by the statute. me the board is facing a controversial deci- 4. Is prior noce required, and if so, what kind? sion, parcularly if it involves a zoning request, Noce is a common element of many statutory it should set out its findings of fact and ra- decision-making procedures. Because provid- onale in the record. If it is not possible to ing the required noce goes directly to the formally write the board’s findings at the ability to exercise the authority, it is extremely meeng or hearing, then direct that they be important that towns provide the type and prepared and entered into the record. There length of noce required. Noce may take a are different techniques for developing and variety of forms including posted, published, entering into the record findings and raonale, mailed, telephoned, and personal delivery. but the point is that it is very important to do so. Refer to Document Number TP4000 for 5. Is a hearing required? A hearing is oen re- addional informaon on findings of fact. quired when the decision has the potenal to impact residents or their property. For exam- 9. Is more than a majority vote of the board re- ple, the adopon or amendment of a zoning quired to make the decision? If the authoriz- ordinance can only occur aer a hearing is ing statute does not specifically menon the held. Minn. Stat. § 462.357. type of majority needed to make a decision, a simple majority is all that is needed. However, 6. Are there any me limits for making the deci- some statutes require a super-majority or a sion? One of the most significant examples of unanimous vote of the board in order to make me limits for taking acon is the 60-day rule a decision. For example, the authority to trans- under Minn. Stat. § 15.99. For towns, this rule fer town money from one fund to another re- most directly applies to wrien request re- quires a unanimous vote of the board. Minn. lang to zoning and sepc systems. Minn. Stat. Stat. § 366.04. § 15.99, subd. 2. This means towns with zoning ordinances, for example, only have 60 days 10. Are there any subsequent noce or posng from receipt of a completed zoning applicaon requirements? Once a decision is made, some to approve or deny the applicaon. A limited statutes require the board to provide public opportunity is provided to extend the period noce of the decision and/or to record a docu- an addional 60 days. Failure to make a deci- ment reflecng the decision. For example, sion within the prescribed period means the when a board establishes a road or cartway, it applicaon is automacally approved. Refer to must record the establishment order in the Document Number PZ3000 for addional in- county recorder’s office. Minn. Stat. § 164.07. formaon on the 60-day rule. A variety of consequences can flow from failing to 7. Is the board in the proper forum to make the comply with the decision-making procedures. A decision? At a minimum, the open meeng board could have its decision or enactment (such as law requires board decisions to occur at a an ordinance) invalidated. Civil liability could result properly called public meeng. In addion, to the town and/or individual supervisors. For exam- some decision should be made as part of a ple, making a decision at a gathering of supervisors hearing or at a parcular type of meeng such that violates the open meeng law could result in a as meengs of the board of audit or board of civil penalty of up to $300 being levied against each canvass. supervisor. It is even possible for criminal charges to 8. Is there a sufficient basis for the decision? be brought against a town officer who, for example, This is the issue most oen raised in aacks intenonally makes a decision in excess of his or her against board decisions. If someone believes statutory powers. Minn. Stat. § 609.43(2). Gaining a the board did not have a sufficient basis for its clear working knowledge of how the statutes decision, he or she can bring a suit alleging the frame the local decision‐making process is key to board acted arbitrarily and capriciously. The avoiding these, and other, consequences. surest way to overcome such aacks is for the

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2017 Manual on Town Government Minnesota Association of Townships Refer to Document Number TM4000 for additional information on the methods available for town boards to act. Refer to Document Number TP5000 for additional information on acting by resolution. Refer to Document Number TP6000 for additional information on town ordinances.

NOTES ______

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2017 Manual on Town Government Minnesota Association of Townships