EMILY — A city council has the ability to determine whether one of its members is a resident and thus able to serve on the council.
That was the opinion of Steve Qualley, Emily city attorney, in a statement to the city council Thursday night.
At issue in Emily is whether one of its elected members, Jan Mosman, is actually a city resident.
After the meeting, Emily Mayor Bonnie Kile said the statutes Qualley references never went to court on a question of residence.
“Leave it to Emily to make history,” Kile said. Qualley presented his findings to the council during an informational session. The council took no action.
Qualley said a state statute “provides that a city council office becomes vacant when a member ceases to be an inhabitant of the city in which the person was elected.”
Those eligible for council service must be 21 years old and reside in the city for 30 days before the election, Qualley reported.
“If the person no longer resides within the city where elected, the city council of that city has the authority to determine that the person is no longer eligible to serve as a city council member and declare the office vacant,” Qualley stated.
In determining if an individual is a resident, Qualley said the elected official’s intent and availability to perform duties are the main criteria.
Looking at case history from 2002, Qualley stated the burden of proof to prevent someone from taking office based on residency falls on the person seeking to remove them.
Resident Donna Sutton and her attorney Mark Severson previously presented information to the council suggesting Mosman was not a resident of Emily and instead was a resident of Eden Prairie.
Addressing the issue after Sutton raised it, Mosman stated in an email that she moved to Emily and spends more time there than anywhere else but also has a home on two acres in Eden Prairie. Mosman noted the tough housing market and said one homestead was enough. According to records, Mosman lists her primary residence as Eden Prairie and her cabin in Crow Wing County as seasonal/recreational and a non-homestead.
According to public records, Mosman filed an affidavit of candidacy with Emily in 2010 as a candidate for Emily City Council and as a resident of Emily. It was revealed however that during this time, Mosman was actually a resident of Eden Prairie. Mosman’s term as city council member is set to expire in 2014.
Thursday’s short session was not a public hearing but allowed time for the city’s attorney to go over a March 27 letter to the council.
In his letter, Qualley said residency is where an individual has a home not where they intend to move; residency is not lost if a person lives temporarily in another place; if someone’s family lives in one area and they do business in another, the residency is found where the family lives; and an individual’s home is where the person lives and usually sleeps.
Previously Mosman said she has important reasons to go to the Twin Cities often but they are personal.
The Thursday informational session packed the small town hall. Mosman was present for the council session. The council will meet at 6 p.m. April 10 at city hall. Kile said they’ll take up the issue at that meeting.
Kile said Qualley’s letter in some cases raises more questions than it answered in what has become a complicated issue. But she pointed to the last paragraph on the letter from Qualley.
Qualley stated if the council determines one of its members is not a resident and subsequently deprives that person of the ability to serve in a position they were elected, it was his opinion the council needed to make “very definite and specific findings concerning the non-residency in order to declare a vacancy.”