9/7/2017 4:14:00 PM District court denies motion to dismiss complaint against City of North Branch
Tenth Judicial District Judge Brigid Dowdal is going to allow a lawsuit against the City of North Branch proceed. Peter Schaps, who was appointed to the North Branch Water & Light Commission and then deemed ineligible to serve, is in court to get his appointment reinstated and to be compensated for legal expenses.
The City of North Branch asked Dowdal to dismiss the claim at a June 2 hearing (See June 8 Press story)
The deadline for Dowdal to rule on the motion was August 31, and her decision was dated August 30. What happens next is North Branch gets 10 days to file its responsive pleading.
Schaps stated in an e mail to the Press, “My expectation is to rejoin my fellow commissioners just as soon as it can be ordered by the court.”
North Branch City Attorney Vince Stevens said this denial of his motion is not a surprise. He remarked, “Rule 12 motions at the beginning are usually not granted.”
Judge Dowdal cited numerous other Minnesota cases involving how the rules have been applied and the questions raised in those circumstances. She wrote that Schaps’ claim of being unlawfully removed without a hearing is “cognizable.”
In Minnesota the methods for filling utility commission seats differ from the process for other city boards and committees to get filled.
Schaps alleged that he was illegally removed and not granted a hearing. He did not attend a 2017 Water & Light meeting as he was appointed at the end of December 2016 and off the commission by Jan 12 2017.
Stevens argued the city deemed Schaps was ineligible and Schaps was not in a strict legal sense “removed.”
The North Branch Water & Light appointee requirements changed between December and January 12. The new rules called for a utility customer to be appointed and Schaps does not subscribe to Water & Light. He is a customer of another electric utility plus he has indiviual well water.
The standards (in ordinance) were changed by council to reflect the customer condition after Schaps was appointed.
The city council also added wording into the ordinance that water and light commissioners can be unseated at will by the council, when it’s in the city’s best interests.
Schaps and his attorney maintain there must be a hearing as provided for under state laws for utility appointments.
The city council put water and light utility customer Cynthia Erickson into Schaps’ seat, and she has been attending meetings in 2017.
Water & Light has three commissioners. One is a council liaison, at this time this is Mayor Kirsten Hagen Kennedy, who also serves along with Erickson and Matt Falk. The commission meets at the main offices of the utility across from St Gregory Catholic Church every third Tuesday. North Branch is unique in that it runs its own power grid as part of SMMPA, and its water system is owned, built, maintained and billed by the utility. The wastewater (sewer) part of the city’s services is a municipal function.