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ties of ;lability. {Oconto County Board of Super-
<br />visors° 47 Wis. 208, 2 N.W. 291, 1879.} Possibly
<br />in the same general category is the decision in
<br />Hager v. State ex teL. Te Vault, 446 S.W. 2d
<br />43 (1969), holding that when a council member
<br />is the subject of a petition for a recall election, he
<br />may not vote on a council resolution to appeal
<br />a court dec[sion to force calling of the .election.
<br />
<br /> 2. Self-appointment. When a municipal of-
<br />ficial is in a position to appoint himself, or parti-
<br />cipate in making the appointment, to a public
<br />office or position, he has a self-interest which
<br />disqualifies him from participating in such action.
<br />(Twp. Committee of Township of tIazlet v. Mor-
<br />ales, -119 N.J. Super. 29,289 All. 2d 563, 1972.)
<br />
<br /> 3. Fixing official's own compensate, on. A
<br />blinnesota council of any second, third, or fourth
<br />class city is authorized by statute to fix its own
<br />salary as well ~ that of the mayor. (M.S. 415.11.)
<br />Since every member of the council will be per-
<br />sunnily interested in the determination of his
<br />compensation, the statute can be given effect only
<br />by recognizing that the legislature has specifically
<br />determined by adopting it that tee principles of
<br />disqualifying interest are not to be applied in
<br />this situation. The fourth factor mentioned in the
<br />Lenz decision, the need for interested officials to
<br />make the decision, must be determinative in this
<br />CaSe.
<br />
<br /> A special situation is involved in setting the
<br />clerk's salary in a statutory city operating under
<br />the standard plan in which the clerk is a member
<br />of the council. Even prior to the adoption of the
<br />statute permitting the council to fix the compensa-
<br />tion of its members, the statutory city code auth-
<br />orized the council to fix the compensation of the
<br />clerk under its general authority to fix the com-
<br />pensation of all officers, both elective and appoint-
<br />ive, when not otherwise prescribed by law. (M.S.
<br />412.111.} In contrast to the situation when they
<br />set their own salaries, however, the other four
<br />members may vote on the clerk's compensation
<br />without any disqualify,;ng self-interest. The clerk
<br />should not vote. See Reckner v. School District
<br />of Ge,~nan Township, 34, Pa. 375, 19 A 2d 402,
<br />133 A.L.R. 1254 (1941}, holding that under a
<br />statute permitting a school board to fix the salary
<br />of a member who serves as secretary, the secretary
<br />may not cast the deciding vote. The Attorney
<br />General once ruled, however, that the clerk may
<br />vote on a motion or resolution fixing his salary.
<br />{A.G. Op. 1936, No. 45.)
<br />
<br /> The strict attitude of some courts on this
<br />question is illustrated by the case of Davis v.
<br />City of Jenkins, 314 Ky. 870, 238 S.W. 2d 475
<br />(1951}. There statutes authorized the city council
<br />to fix the mayor's salary and provided that the
<br />mayor could vote at council meetings in case of
<br />a tie. Nevertheless the mayor's vote cast for an
<br />ordinance fixing his salary was held illegal, though
<br />
<br />-11 -
<br />
<br />the vote was needed to break a tie.
<br />
<br /> In a related field of p. ensions, a special situation
<br />may occur where there is a eon'fl:ct of interest. A
<br />number of Minnesota cities have local police or
<br />fireman's pension p!ans in which the amount of
<br />the pension is fixed at a percentage of the current
<br />salaries for policemen or firemen. Under such an
<br />"escalator clause", the pension is increased when-
<br />ever salaries are increased; therefore, a council'
<br />member who is receiving such a pension as a re-
<br />tired member of the police or fire department
<br />has a personal financial interest when a change in
<br />salaries for the department is before the council.
<br />See A.G. Op. letter opinio.n, LMC 130d, Mar. 27,.
<br />1975.
<br />
<br /> 4. Establishing street or highway. The Minn:
<br /> esota Supreme Court has held that a county board
<br /> member who owns land adjoining a proposed
<br /> county highway does not have a disqualifying
<br /> interest preventing him from voting on the es-
<br /> tablishment of the highway. {Webster v. J~oard
<br />· of County Commissioners of County of Washing-.
<br /> ton: 26 Minn. 220, 2 N.W. 697, 1897.} Here the
<br /> benefit was like that of' the public using the road
<br /> and differed only in degree. Had possible damages
<br /> been involved, as would have been the case if
<br /> the highway had gone through any of the com-
<br /> missioner's land, a different result might have
<br /> been reached. See No. 6 below. See also Township
<br /> Board of Lake Valley Township v. Lewis, 234
<br /> Minn. N.W. 2d 815 {!975} where disqualification
<br /> of.a town board supervisor was alleged when
<br /> he voted on establishment of a county road after
<br /> having asked a landowner to circulate a petition
<br /> for the road. The Court refused to disqualify
<br /> the supervisor. By !ts very nature, the Court
<br /> said, the decision to establish a town road will
<br /> be of ~nterest to all local citizens including mem-
<br /> bers of the town board. They are often in the
<br /> best position to be aware of the need for a road.
<br /> The availability of appeal, to the district court
<br /> will adequately, protect occupants· of affected
<br /> land from any possible prejudice, said the Court.
<br /> The case does not specifically say that a supervisor
<br /> who owens land affected by a proposed road is not
<br />
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<br />
<br /> 5. Local improvement and assessment proceedings.
<br /> A member of a council owning land which will be
<br /> benefited by a local improvement probably is not
<br /> precluded by his interest fi'om petitioning for the
<br /> improvement, voting to undertake it, or voting to
<br /> adopt the resulting special assessment. One Minn-
<br /> esota decision, Petition of Jacobsen, 234. Minn.
<br /> 296, 48 N.W. 2d 441 {1951), took a different ~iew
<br /> with respect to county ditch proceedings,: but
<br /> this case seems to have been sharply limited as a
<br /> precedent by the later case of Lenz v Coon Creek'
<br /> Watershed District, 278 Minn. 1, 153 N.W. 2d
<br /> 209 {1967}, though the Jacobsen case was not
<br /> cited and the cases can be distinguished on their
<br /> facts. The Jacobsen case concerned a proposed
<br />
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