COUNCIL TO CHOOSE WHICH CODE VIOLATORS TO CHARGE - CHANGE TAKES DECISION OUT OF CITY PROSECUTOR'S HANDS
Marisa Agha, Pioneer Press
November 23, 2002
In a move that some government and legal experts describe as highly unusual and fraught with potential ethical problems, the Roseville City Council, not the city prosecutor, will now decide whether to file criminal charges against citizens for such eyesores as inoperable vehicles and yard trash.
Roseville's new approach raises ethical concerns because it places prosecutorial decisions in the political arena, said Richard Callahan, past chairman of the standards and ethics committee for the National District Attorneys Association. He compared it to requiring the U.S. Justice Department to obtain congressional approval before prosecuting environmental cases.
In a typical year, Roseville prosecutes just one or two code violation cases, out of the 600 citations it writes citywide. It prosecuted just one last year. The majority of cases are cleared up without having to haul the violator into court.
Mayor John Kysylyczyn, who has had several disagreements with city code enforcement personnel over the years, said the new process would allow citizens to speak to the council before their cases are referred to prosecutors.
"I don't see why there's a problem with giving people the right to speak to the council," he said before the council voted. "This is America."
The council approved a new contract with the firm of Jensen, Bell, Converse and Erickson, which acts as the city's prosecutors, in a 3-2 vote Monday night. This marks the first time a client has requested such a change, said Roseville City Prosecutor Caroline Bell Beckman.
"To attempt to require political approval before a prosecutor can initiate a prosecution is just plain flat-out wrong from an ethical standpoint," said Callahan, a longtime prosecutor in Cole County, Missouri. "This would not work if the City Council consisted of the 12 apostles. Institutionally, this is a terrible idea."
Callahan suggested that if the council perceives a problem with code enforcement, perhaps it should re-consider how the city classifies such violations.
"Maybe they've over-criminalized," Callahan said.
Other cities are trying different approaches to code enforcement and exploring ways to keep such cases out of clogged courts.
Richfield, also a first-ring suburb, is looking to hire a hearing officer to preside over code enforcement cases. The officer, probably an attorney, would act as a mediator and would not be a council member, said Dan Scott, the city's director of public safety.
"If we can resolve it before we go to court, that's what we'd like to do," Scott said.
Mayor Kysylyczyn launched his 1999 political campaign after several run-ins with city code enforcement officers over vehicles and debris in what was then his father's yard. He said the city's new approach is the same as it uses in "abatement" cases. That's when the council votes to use city funds to clean up a property and then assesses the owner for its costs.
"It's the same process. Nothing's changed," Kysylyczyn said this week. "Before people are sent through the ringer, they get the right ... to speak to the City Council."
Kysylyczyn cited the work of a League of Women Voters committee that is studying codes in Roseville, Maplewood and Falcon Heights as the genesis of the city's new approach to prosecutions. But the league is not looking at code enforcement and has not issued any findings, said Lila Recksiedler, a committee member. The aim is to consider the updating of codes, she said.
"We have no position, and we still aren't prepared to take a position until we do more work on it," Recksiedler said.
Council Member Craig Klausing, who voted against the change, says the new approach turns what typically is a staff decision into a "political football."
"What criteria is the council going to apply in deciding which cases get prosecuted and which cases don't? Who you know? Whether you've promised to take a lawn sign for someone?" Klausing asked.
He says that the change "presents a conflict of interest with our roles as policy-setters."
The new approach conflicts with traditional boundaries between the judicial and legislative branches of government, said Larry Church, professor of law at the University of Wisconsin Law School in Madison.
"I can imagine problems with that," Church said. "It sounds like their prosecutions are going to be politicized. Prosecutors have historically been checked by the judicial branch, but not the legislative branch."
Marisa Agha, who covers north suburban Ramsey County, can be reached at email@example.com or (651) 228-2109.
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