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as :.~eed .inspector and rec~eive cornpensation for
<br /> :hose services in addition to his compensation as
<br /> a member of the governing body as long as the
<br /> total ann~al payment for such services d~oes not
<br /> exce~,d ['~5,000](A.G. Op. 322a-2, LMm; '130d,
<br /> Oct. 4,'1968.) A city may not circumvent the
<br /> $5,000 iimit by dividing a contract into a number
<br /> of units svhen they are pr.operly part of a single
<br /> contract, any more than it may avoid bidding
<br /> requirements by splitting what is properly a
<br /> Single contract into several contracts. On the
<br /> other hand, the statute provide~ no restriction
<br /> on how a city may divide its contracts, and the
<br /> c~uncit may .contract· with a council member
<br /> far a .portion of a road improvement proiect if
<br /> ~.l~e contract comes within the statutory exception
<br /> and procedural re~u, irements are met. (See A.G.
<br /> Op. 90a-1, LMC 130d, April 22, 1971.) In some
<br /> cases (e.g. services by a court reporter who is a
<br /> member of a governing body), each individual
<br /> ~e. rf'ormance, may constitute a separate Contract
<br /> ~o, which the [$5,000] Ii/nit ap[Jlies.(See A.G. Op.
<br /> .~0b, LMC 130d, Aug.. 8, 1969.) :
<br />
<br /> · 5:.".il contract with a volunteer fire
<br />depa~ment for the payment of compensation to
<br />~:~ ~nernb~rs or for'the pay~nen~ of retirement
<br />ber. e~{ics ~o members. There is no similar exception
<br />:vifi~ respect to the compensation or pensions of
<br />~e~bers of paid fire departments. A good argu-
<br />~n~nt could be made that this legislation by its
<br />~rms applies only to independent nonprofit fire
<br />,~gh,.ng corporations or associations which con-
<br />tract wi~h cities to furnish fire protection, and
<br />that the exception has no application to municipal
<br />dc?~me;;ts. However, that has not been the way
<br />:n ~:zhich 5ubd.'6 has been interpreted. In A.G.
<br />Op. 358-e-4, LMC 415 E7, January 19, 1965,
<br />~ Attorney General ruled that the 1955 amend-
<br />rnent permitted a member of a municipal volunteer
<br />fir. e department;, to serve on the city council and
<br />that. M.S. 471.88, Subd. 6 overcomes, common
<br />i~,; incompatibility problems, as well as statutory
<br />prohibitions, against interest in contracts for
<br />volunteer firef, ighters. ..
<br />
<br /> in A.G..Op. 358-e-9,' LMC 415 ET, April 5,
<br />lg71'~ to the Madelia city attorney~ the Attorney
<br />C-eneia~ :'~led thJt the chief of a volunteer fire
<br />depzrtrnent could not simultaneously hold the
<br />office of council member in a statutory city.
<br />This .o~inion makes no mention of the 1965
<br />opinion nor does it refer to M.S. 471.88, Subd.6.
<br />The reasoning of the opinion is that since the fire
<br />chief is unquestionably subordinate to the govern-
<br />in§ body and the governing body has power to
<br />control the discharge of the functions of the fire
<br />chief, ~hc acceptance of the office of council
<br />member vacated the office of fire chief. As auth-
<br />ority, this opinion 'cites Kenney v. Goergen, 36
<br />Minn. 190,31 N.W. 210 (1886).
<br />
<br /> It would appear that the test for incom-
<br />patibility applied to the Madelia situation (sub-
<br />
<br />-2-
<br />
<br />ordination to the city coun:cii and power to control
<br />the discharge of the functions of thc officer)
<br />would apply with equal force to every person on
<br />the fire department. However, it could be argued
<br />that the fire chief' is directly responsible to the
<br />municipal Council while the individual fircfighters
<br />are responsible indirectly through the fire chief,
<br />and since M.S. 471.88, Subd. 6 only refers to
<br />members of the department and not to officers
<br />or those having direct supervisory functions, the
<br />exception to the interest in contracts prohibition
<br />and incompatibility doctrines shoutd not be
<br />widened beyond the point which the legislature
<br />clearly intended by the specific language used.
<br />
<br /> Since the relationship of volunteer fire '
<br /> departments to municipalities in the state varies
<br /> so greatly from one city to-the next, any flat
<br /> statement about the compatibility of a council ...
<br /> positi'on with any position in a volunteer fire-
<br /> department is likely not to take account of ali "'.
<br /> -the potential circumstances.' However, it seems.
<br /> clear that the Attorney General, and therefore
<br /> the State Auditor, will 'not 'present any legal. '
<br /> objections to the holding of the offices of council '
<br /> member and volunteer firefighter in a nonsuper- '-
<br /> visory position simultaneously. On thc other ·
<br /> hand, if a member of a volunteer fire depart- ..
<br /> ment performing supervisory functions in that-
<br /> department should decide to seek a seat on the .
<br /> city council,, it might be wise to first request an
<br /> opinion of the Attorney General to avoid the ..-
<br /> possibility that the acceptance of the council .:
<br /> po~ition would automatically vacate the individual's '
<br /> position on the volunteer fire department or
<br /> involve a prohibited interest in contracts if:pay
<br /> is involved. .. :- . -
<br />
<br /> -6. A contract with'a municipal band
<br />· for the payment of compensation to its members.
<br />
<br /> 7. Contracts for goods or services when' ·"
<br /> · the total consideration received for the contracts . .
<br /> does not exceed $5,000 in any year and the con-
<br /> tracting governmental unit has a'population of
<br /> less than 5,000. · ':.
<br />
<br /> · This exception should'be carefully distin-
<br /> guished from the fourth exception discussed
<br /> earlier. The two are different in several respects:
<br />
<br /> a. Exception 4 applies only when the '. '-:
<br /> commodity or service contracted-
<br /> for cannot be otherwise obtained
<br /> in the city; exception. 7 contains
<br /> no such limitation.
<br />
<br /> b. Exception 4 requires the filing of'an ·
<br /> affidavit by the officer and the adopo .
<br /> tion of a resolution by council setting
<br /> -. out. the .requisite facts; exception 7
<br /> contains no such procedural r. equire'
<br /> merits.
<br />
<br />
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