When Elected Officials Misbehave – How Can Public Employers Respond?

Several stories were recently written about elected officials accused of serious crimes.  Bear in mind that these are allegations, and no one has been found guilty of anything at this point in time.  However, the stories raise a question: what can an employer do when elected officials have been accused of serious criminal activity that could impact their ability to do their job?

Normally, in the case of a regular employee, the answer is simple.  You either place the employee on administrative leave pending the outcome of the criminal matter and make disciplinary decisions following the resolution, or you find your own grounds to discipline/terminate the employee for violations of work rules while the employee is away from work because of the criminal matter (it’s pretty easy to terminate employees when they don’t show up for work because they’re in jail).

However, in Minnesota, elected officials are not held to the same standards as regular employees.  An incumbent’s conviction of “any infamous crime, or of any offense involving a violation of the official oath” of the incumbent’s office results in the immediate vacancy of the elected official’s position.  Minn. Stat §352.02(5). So, if an elected official commits a felony; they’re out.

Minnesota statute also provides for the removal of county elected officials in cases of malfeasance, nonfeasance, or misfeasance.  However, those charges only apply to acts taken by elected officials “in the performance of a public official’s duties,” and a removal election must ultimately take place to do so.  There are no such statutes in place for the removal of elected city officials.

Per statute, the following employees are exempt from the jurisdiction of a County’s personnel department:

(a) elected positions;

(b) positions for which a county or district court judge is the appointing authority;

(c) positions designated as department heads appointed by the county board;

(d) positions designated as department heads appointed by boards or commissions appointed by the county board;

(e) one position designated by each elected department head as a chief or principal assistant;

(f) one position designated by each elected department head as a personal secretary.

This means that a County’s board cannot act to remove an elected official in accordance with personnel rules.

Which takes us back to our original question of what to do when an elected public official is accused of serious criminal activity.  Obviously a public entity will want to consult with outside counsel regarding its rights in regard to the actions it can take against an elected official.  Unfortunately, what you’re likely to be told that because the public elected the official, it is the public who gets to determine whether the official will remain in office beyond the end of the official’s term, barring any felony convictions.  We have seen instances where public entities have put added pressure on the elected officials by voting for an official censure based the inappropriate conduct.

Ideally, elected officials will demonstrate the moral compass to guide them to make the right decision about whether they are able to faithfully serve the public in these situations.  In the event they fall short, we are forced to rely on the laws in place meant to deal with criminal misconduct.  If you, or your organization, are in need of assistance in dealing with elected official misconduct, contact the Wiley Law Office, for legal advice that works.