on 7/29/02 8:38 PM, [EMAIL PROTECTED] at [EMAIL PROTECTED] wrote: > It seems to me that the council does have a responsibility and reasonable > cause to ask him directly about his conduct in matters related to the current > legal charges. > Is the council being prudent by not mucking up the legal case? Are they > concerned about the cost? Are they concerned that they would be sued? > I guess my question to other list members: > Should the council be using the designated city charter provisions for > removal of elected officers? Why? or Why not?
No, the Council should not be trying to remove Joe Biernat while a current criminal case is pending. In the first place, the Council can't "ask him directly" because of his 5th Amendment rights, which prohibit the Council from compelling him to provide evidence against himself. Joe Biernat would certainly decline to answer any questions posed to him on 5th Amendment grounds, an outcome which may be good political theater, but not useful as an investigative tool (the recent Enron hearings come to mind). Second, if Biernat is convicted there will be no need for an investigation. If convicted he will be removed from office automatically under the express language of the Charter. This is unlike the US House of Representatives, for example, where a separate vote to expel James Traficant was required even after conviction. Article 2, Section 19 of the Charter reads as follows: "Any elective or appointive officer of the City of Minneapolis, or any person employed in the services of the City of Minneapolis, . . . who shall willfully violate or evade any of the provisions of law . . . on conviction, shall forfeit the office and be excluded forever after from receiving or holding any office under the Charter of the City of Minneapolis . . . " A plea agreement would also require Biernat to forfeit his office, because (presumably) he would admit guilt as part of the plea to some violation of law, which triggers the language in the Charter. UNLESS, perhaps Biernat could plead guilty to a negligent violation of the law, which would not be "willful" under the terms of the Charter. I can't imagine, though, under these facts how he could claim that he "negligently" received free plumbing services, or "negligently" voted to appoint his plumber to the licensing board. So if Biernat is convicted he is removed from office. This is true even if he is convicted of a misdemeanor, not a felony. The Charter does not distinguish between the two, requiring forfeiture of office upon conviction of "ANY" provision of law. (I think the Charter is too broad in this respect - theoretically, "any" violation of law could include speeding tickets, parking tickets, or any "willful" low-level offense. Until amended, however, this is the language which applies.) The only other scenario is an acquittal. If Joe Biernat is acquitted I doubt as a political matter the Council would want to investigate and remove him from office. Some sort of censure or reprimand might be in order. But trying to remove him from office after vindication by an acquittal is the very archetype of a vendetta. And, in any event, the Council has better things to do than to relitigate a federal criminal case. Lastly, imagine what would happen if the Council tried to expel Joe Biernat on grounds that he had violated the law, only to have a jury acquit him later. That would be very embarrassing, to say the least. Any action the Council might take before the criminal trial would be premature. After the criminal trial the whole question will be moot one way or the other. We'll all just have to wait and see what happens. Greg Abbott ------------------------------------ Sent from the computer of: Greg Abbott [EMAIL PROTECTED] Linden Hills 13th Ward (612) 925-0630 ------------------------------------ _______________________________________ Minneapolis Issues Forum - A Civil City Civic Discussion - Mn E-Democracy Post messages to: [EMAIL PROTECTED] Subscribe, Unsubscribe, Digest option, and more: http://e-democracy.org/mpls
