This article was first published in the Pioneer Press on June 23rd, 2019. The published version of this article and reader comments are available on the Pioneer Press’s website. View on TwinCities.com (Pioneer Press)
Some people think St. Paul’s current organized trash collection system stinks. No matter where you side on that issue, I think we can all agree that the legal missteps the City made in moving forward with that system were particularly foul.
Simple analysis in 2017 should have led officials to understand that a referendum could threaten repeal of the trash ordinance. In fact, Judge Leonardo Castro’s recent order suspending the ordinance confirms this was fully foreseeable.
As Judge Castro held, the city attorney’s office was “well aware” of the city’s charter, which “provides for a very broad referendum power on any ordinance.” Although the City argued that such a referendum was pre-empted by state law, even before they signed the contract they had reason to know that their argument might not hold water. In fact, while the contract was being negotiated, just across the river a very similar legal issue was playing out in Bloomington regarding whether state law pre-empted the right of citizens to amend their city charter to first require voter approval on a similar organized trash proposal.
Still, despite the clear legal issues at play, St. Paul officials hastily proceeded to sign the contract. Their decision not to hit the brakes on the deal until the Bloomington litigation was resolved might have been reasonable if the city had made sure to give itself a way out of the contract in the event of a referendum. However, apparently city officials do not believe they did that.
This is perhaps why city officials were reluctant to let the issue go on the ballot. They feared their mistake would be exposed. Instead of dealing with spilled milk, minutes from the Nov. 14, 2018, city council meeting instead shows councilmembers relied heavily on the city attorney’s inaccurate analysis that, although there were enough signatures to trigger a referendum, such a referendum was preempted by state law.
Of course, Judge Castro has now held otherwise, i.e. that the referendum is not preempted and that it must take place this November, but in what should have been relief for the city, he also found an “out” in the contract. While the city does not seem satisfied its contract includes an out, Judge Castro does. Indeed, his order highlights a “force majeure” clause in the contract that he says allows for suspension of the city’s performance — i.e. duty to pay — under just such circumstances.
So why aren’t our elected officials scurrying to figure out how to leverage the amazing opportunity that has been handed to them? Certainly, Judge Castro’s interpretation of the force majeure clause and the looming referendum provide the city with leverage points to renegotiate the contract and address citizen concerns. These concerns include issues relating to increased rates for multi-family housing and lack of flexibilities for households that create minimal amounts of trash. What an opportunity to “make citywide trash collection better together,” as Mayor Carter has recently implored. Instead the city is ignoring this opportunity, blaming citizen activists, and charging forward as if in league with the hauling consortium.
The whole series of events begs an even bigger question — who or what is driving these legal missteps? The mayor? The city attorney? The city council? Political convenience? Relationships? A thirst for fees?
The taxpayers cannot bear any more of these costly legal blunders. A few years ago the city lost a growing business and spent $800,000 of taxpayer dollars triggered by legal missteps in the Black Bear Crossing fiasco. Then, in 2016, after the Minnesota Supreme Court overruled its position, the city persisted with street right-of-way assessments. As a result, it had to pay over $400,000 to those who challenged that faulty decision. The city then adopted a “street maintenance fee” theory for a third of the old street right-of-way assessment charges. That has again been challenged and a judge has ruled against the city. The cost this time is nearly $100,000.
How much more will the city spend if the trash appeal fails? Who will pay for the city’s campaign to oppose the referendum? Instead of negotiating a better contract, the mayor is choosing a path that will divide the city. We expect more from our leaders.
The legacy of some of these bad legal calculations predates the tenure of some of our current elected officials, but why do they continue? It’s time for St. Paul’s elected officials to change course, be transparent, stop the bleed, and represent us — St. Paul residents and taxpayers.
John Mannillo is Chair of the citizens group Saint Paul STRONG. Andy Rorvig of St. Paul is an attorney.