Bloomington
July 2020
With significant angst, the Bloomington City Council placed the citizens group question concerning government managed trash collection on the ballot for the November election. Council members feared a third defeat in the Minnesota Supreme Court if they chose not to do this. The ballot question reads as follows:
Should the Bloomington City Charter be amended to add: “Unless first approved by a majority of voters in a state general election, the City shall not replace the competitive market in solid waste collection with a system in which solid waste services are provided by government-chosen collectors or in government-designed districts. The adoption of this Charter amendment shall supersede any ordinances, ordinance amendments, or Charter amendments related to solid waste adopted by the City Council in 2015-2016.”?
YES______________
NO_______________
In addition, the city council also placed a ballot question asking voters if the city should be prevented from signing contracts for government managed trash collection. The ballot question reads as follows:
If City Question 1 above passes, should the Bloomington City Charter also be amended to add: “The council shall not enter into a contract with residential solid waste haulers for the exclusive rights to haul and collect residential solid waste services within the jurisdictional boundaries of the City of Bloomington.” A “yes” vote means you do not approve of continuing City-organized trash, recyclables, yard waste, bulky waste, and electronic waste collection. A “no” vote means you approve of continuing with City-organized trash, recyclables, yard waste, bulky waste, and electronic waste collection.
YES______________
NO_______________
A YES vote on both questions restores citizen choice for choosing solid waste haulers. A NO vote on both questions retains the city's power to order citizens to use a hauler of the city's choosing.
Extensive questioning among members of the Bloomington City Council and the Bloomington Charter Commission created no clear consensus if citizens choose to split the vote on the ballot questions, by voting YES for one question or NO for the other. The only consensus seemed to be that a split answer by the community would likely lead to further court action.
March 27, 2020
Bloomington City Attorney Melissa Manderschied informs citizens group that city staff is "starting the steps" to place the issue of government managed trash collection on the November 2020 ballot.
Text of email from Bloomington City Attorney:
I’m writing to inform you that City staff is starting the steps to place the language discussed in the litigation ( “Unless first approved by a majority of voters…”) on the November 2020 election ballot.
MELISSA MANDERSCHIED, City Attorney
February 12, 2020
After almost 5 years of litigation, and numerous trips to court, the citizens group has defeated the City of Bloomington for the second and final time before the Minnesota Supreme Court.
(Read the opinion of the Minnesota Supreme Court)
Press release from the citizens group:
MINNESOTA SUPREME COURT DECLARES VICTORY FOR BLOOMINGTON VOTERS OVER CITY HALL
BLOOMINGTON VOTERS WILL BE HEARD ON TRASH COLLECTION
SAINT PAUL, Minn. February 12, 2020 - A grassroots group of Bloomington residents calling themselves “Hands Off Our Cans” had their right to amend their City Charter vindicated on Wednesday morning. The Minnesota Supreme Court, in a split decision, held that the City of Bloomington acted outside its authority in rejecting a ballot measure which gives voters the right to choose whether to continue with Organized Collection of waste hauling in the City of Bloomington.
The City Charter in Bloomington reserves for voters the broad powers of Initiative, Referendum, and Charter Amendment power. The Court found that the ballot measure was a valid expression of citizen legislative power, and that the City Council’s refusal to place it on the November ballot was not a proper exercise of its authority. The Bloomington Charter reserves for its people broad power to enact and change legislation, the majority held. The Court rejected the City of Bloomington’s argument that the ballot measure, a collection of signatures of thousands of city voters, was unconstitutional. The majority also rejected the city’s contention that it was actually a referendum in disguise.
“We were confident in our rights at the outset, and from early on this was primarily about citizen rights and citizen participation and had little to do with organized collection,” said Joel Jennissen, one of the Plaintiffs in the suit. The ruling means that the Charter Amendment, which will give the voters the power to choose their preferred system of trash collection in the City, must be placed on the ballot, at which time the voters can make their voices heard.
This is the second time the group has secured a victory for voter rights at the Minnesota Supreme Court, with the first coming in 2018. At that time, the Supreme Court rejected Bloomington’s argument that the citizen effort was preempted by state law.
The group has been represented pro bono by Attorney Greg Joseph of Halper & Joseph, PLLC in Waconia. Mr. Joseph is a former Bloomington resident. He also represented a group of Saint Paul residents in a lawsuit against that city for denial of voter rights, and was victorious at the Minnesota Supreme Court last year.
FOR MORE INFORMATION:
Greg Joseph: [email protected]; (612) 968-1397.
July 2020
With significant angst, the Bloomington City Council placed the citizens group question concerning government managed trash collection on the ballot for the November election. Council members feared a third defeat in the Minnesota Supreme Court if they chose not to do this. The ballot question reads as follows:
Should the Bloomington City Charter be amended to add: “Unless first approved by a majority of voters in a state general election, the City shall not replace the competitive market in solid waste collection with a system in which solid waste services are provided by government-chosen collectors or in government-designed districts. The adoption of this Charter amendment shall supersede any ordinances, ordinance amendments, or Charter amendments related to solid waste adopted by the City Council in 2015-2016.”?
YES______________
NO_______________
In addition, the city council also placed a ballot question asking voters if the city should be prevented from signing contracts for government managed trash collection. The ballot question reads as follows:
If City Question 1 above passes, should the Bloomington City Charter also be amended to add: “The council shall not enter into a contract with residential solid waste haulers for the exclusive rights to haul and collect residential solid waste services within the jurisdictional boundaries of the City of Bloomington.” A “yes” vote means you do not approve of continuing City-organized trash, recyclables, yard waste, bulky waste, and electronic waste collection. A “no” vote means you approve of continuing with City-organized trash, recyclables, yard waste, bulky waste, and electronic waste collection.
YES______________
NO_______________
A YES vote on both questions restores citizen choice for choosing solid waste haulers. A NO vote on both questions retains the city's power to order citizens to use a hauler of the city's choosing.
Extensive questioning among members of the Bloomington City Council and the Bloomington Charter Commission created no clear consensus if citizens choose to split the vote on the ballot questions, by voting YES for one question or NO for the other. The only consensus seemed to be that a split answer by the community would likely lead to further court action.
March 27, 2020
Bloomington City Attorney Melissa Manderschied informs citizens group that city staff is "starting the steps" to place the issue of government managed trash collection on the November 2020 ballot.
Text of email from Bloomington City Attorney:
I’m writing to inform you that City staff is starting the steps to place the language discussed in the litigation ( “Unless first approved by a majority of voters…”) on the November 2020 election ballot.
MELISSA MANDERSCHIED, City Attorney
February 12, 2020
After almost 5 years of litigation, and numerous trips to court, the citizens group has defeated the City of Bloomington for the second and final time before the Minnesota Supreme Court.
(Read the opinion of the Minnesota Supreme Court)
Press release from the citizens group:
MINNESOTA SUPREME COURT DECLARES VICTORY FOR BLOOMINGTON VOTERS OVER CITY HALL
BLOOMINGTON VOTERS WILL BE HEARD ON TRASH COLLECTION
SAINT PAUL, Minn. February 12, 2020 - A grassroots group of Bloomington residents calling themselves “Hands Off Our Cans” had their right to amend their City Charter vindicated on Wednesday morning. The Minnesota Supreme Court, in a split decision, held that the City of Bloomington acted outside its authority in rejecting a ballot measure which gives voters the right to choose whether to continue with Organized Collection of waste hauling in the City of Bloomington.
The City Charter in Bloomington reserves for voters the broad powers of Initiative, Referendum, and Charter Amendment power. The Court found that the ballot measure was a valid expression of citizen legislative power, and that the City Council’s refusal to place it on the November ballot was not a proper exercise of its authority. The Bloomington Charter reserves for its people broad power to enact and change legislation, the majority held. The Court rejected the City of Bloomington’s argument that the ballot measure, a collection of signatures of thousands of city voters, was unconstitutional. The majority also rejected the city’s contention that it was actually a referendum in disguise.
“We were confident in our rights at the outset, and from early on this was primarily about citizen rights and citizen participation and had little to do with organized collection,” said Joel Jennissen, one of the Plaintiffs in the suit. The ruling means that the Charter Amendment, which will give the voters the power to choose their preferred system of trash collection in the City, must be placed on the ballot, at which time the voters can make their voices heard.
This is the second time the group has secured a victory for voter rights at the Minnesota Supreme Court, with the first coming in 2018. At that time, the Supreme Court rejected Bloomington’s argument that the citizen effort was preempted by state law.
The group has been represented pro bono by Attorney Greg Joseph of Halper & Joseph, PLLC in Waconia. Mr. Joseph is a former Bloomington resident. He also represented a group of Saint Paul residents in a lawsuit against that city for denial of voter rights, and was victorious at the Minnesota Supreme Court last year.
FOR MORE INFORMATION:
Greg Joseph: [email protected]; (612) 968-1397.
1. Contact Councilmembers (link)
2. Citizen Petition (link)
3. Councilmember Cynthia Bemis Abrams speech opposing city efforts on the grounds that no city goals were being met (May 4, 2015 Council meeting) (link)
4. Mayor Gene Winstead misleads citizens at March 21, 2015 presentation and then has video posted prominently on city website (link)
5. Public Works Director Karl Keel speaks out. He informs council in writing that there is minimal to no improvement in safety, roads, or environment with proposed city trash plan (July 11, 2014) (link)
6. Safety record: Trash vehicles vs. Bloomington City vehicles (link)
7. City trash consultant Dan Krivit with Foth Infrastructure and Environment, LLC violates numerous provisions of the Minnesota Data Practices Act according to State Watchdog Agency (link)
8. City Documents Uncovered (link)
9. Jennissen et al v. City of Bloomington 27-CV-15-11494 (link)
10. Jennissen et al v. City of Bloomington 27-CV-16-10786 (link)
11. Jennissen et al v. City of Bloomington, Court of Appeals A17-0221 (link)
12. Jennissen et al v. City of Bloomington, Supreme Court A17-0221, Jennissen Petition for Review (link)
13. Jennissen et al v. City of Bloomington, Supreme Court A17-0221, Bloomington Petition for Cross-Review (link)
14. Jennissen et al v. City of Bloomington, Supreme Court A17-0221, Jennissen Petition Granted, Bloomington Petition Rejected (link)
15. Jennissen et al v. City of Bloomington, Supreme Court A17-0221, Court of Appeals ruling against Jennissen reversed and remanded back to that court for further proceedings (link)
15. Jennissen et al v. City of Bloomington, Court of Appeals A17-0221, Court of Appeals rules against Jennissen for second time. Court misstates election statistics, showing lack of understanding that City of Bloomington holds municipal elections in opposite years as state general election, not the same year (link)
16. Jennissen et al v. City of Bloomington, Supreme Court A17-0221, Jennissen Petition for Review (link)
17. Jennissen et al v. City of Bloomington, Supreme Court A17-0221, Bloomington Petition for Cross Review (link)
18. Jennissen et al v. City of Bloomington, Supreme Court accepts Jennissen case for review, accepts city's petition for cross review. Date of the hearing scheduled for Wednesday, June 12, 2019, MN Supreme Court building, Room 300. The public may attend.
Summary of Bloomington City Council process
In 2013, the City of Bloomington began the process of moving to government managed trash collection.
Throughout 2014, the city held internal meetings with staff and consultants out of the public eye. Staff emails indicate that early on, some wished to kick out numerous haulers who have served the city for many years and replace them with only one single hauler. This hauler would be picked by the city council, with a one size fits all plan for citizens, eliminating individual choice.
Staff is also using the process to justify adding a $100,000+ solid waste manager position to the city payroll. Staff has not indicated how they will pay for this new position, but one option would be for the city to place a hidden fee on all residential trash bills.
In late 2014, the council publicly announced their intent to create a government managed trash collection system. They voted to trigger the 60 day negotiation provision in state law and began meeting with haulers.
On February 2, 2015, the council rejected the proposed consortium plan brought forward by the haulers. A consortium plan would have divided the city into zones and every current hauler would be given a zone and allowed to keep their existing market share. While a consortium would eliminate choice, it would not drive existing locally owned haulers out of business.
Instead, the council voted to form a committee with the propose of kicking out existing locally owned haulers and replacing them with one single hauler. State law requires that the city council appoint a committee to study options before moving to a government managed trash collection system with one hauler.
The council appointed three elected officials and two employees to this committee which met several times a month. No public comment was allowed prior to the council's vote on establishing the committee and city emails show that citizens were specifically excluded from applying or serving. When a citizen expressed concern as to there being no citizen representation on this committee, Mayor Winstead replied that the legislation does not require it. When asked if the legislation prohibited citizen involvement, the mayor had to admit "no". City emails also show that Councilmember Baloga was adamantly opposed to allowing citizen comments at these committee meetings.
On April 23, 2015, the City Council hosted an open house where the public was invited to come to city hall and ask questions about the city's proposed government managed trash collection plan. The open house was poorly advertised and turnout was low. City staff provided resident feedback forms. By a 2:1 margin, those in attendance opposed the city's plan to eliminate choice. Several residents complained that the city ran out of handouts, had poorly designed and difficult to understand displays, and that only one council member bothered showing up for the open house.
On May 4, 2015, the City Council discussed their proposed government managed trash collection plan at a regularly scheduled meeting. The item was not heard until 10pm. Past council discussions on the issue have also been held at late hours. Mayor Winstead again blocked public comment. The public would have to continue waiting for the council to schedule a formal public hearing.
One by one, the mayor and councilmembers attempted to justify their decision to take away citizen choice. Councilmember Dwayne Lowman attempted to soften his support for eliminating choice by claiming that sometime in the future he would attempt to bring choice back to the city. Councilmember Tim Busse, a communications director at the U of M, disputed the public works director's statements that safety would not improve and road repair costs would not go down any measurable amount with government managed trash collection.
Councilmember Cynthia Bemis Abrams was the only member who spoke out against government managed trash collection. She clearly articulated that the proposal before the council did not meet any of the city's goals. The proposal will not reduce waste and will not increase recycling in the city. It will not improve safety. It will not make any measurable reduction in road repair costs. In her presentation, she extensively quoted a report from Bloomington Public Works Director Karl Keel, who dismissed claims that safety would improve and road repair costs would decrease with government managed trash collection.
The council voted to move forward with government managed trash collection, eliminating citizen choice, on a 6-1 vote with Ms. Bemis Abrams voting NO.
On May 18, the council set the first and only public hearing on this issue for June 1, 2015. After two years of council work on the issue, and expenditures of over a half million dollars in taxpayer funds and resources, the first public hearing on the issue will be held.
The public will be given its first and only opportunity to participate in the process at this meeting. The council has not set a date as to when they will call the vote to institute government managed trash collection. In following past practice of the council, the final vote will most likely be at the end of a long meeting agenda and close to the midnight hour. Most likely no citizen comments on the issue will be taken moments before the final vote.
At the public hearing, over 500 people came to city hall to speak out against the city's government managed collection program. Staff indicated that this was the largest turnout in recent memory for a city council public hearing. Approximately 100 people spoke at the hearing. Several testifiers held up their trash bills and told councilmembers that their so called plan to save them money was actually going to raise their bills. One professional statistician pointed out that the city's claims of how much money residents would save was statistically inaccurate due to city staff not understanding how to properly use mean, median, and mode numbers.
As expected, the city council voted 6-1 to move forward with government managed collection after the hearing.
In the fall of 2015, a citizens group started the petition process to gather signatures to place the city's government managed trash collection issue on the ballot. Not surprisingly, the city attorney immediately worked to stop the petition process, claiming that citizens had no right to challenge the council's authority even though Bloomington is a charter city with Initiative, Referendum, and Recall.
The citizens group then retained the law firm of Dorsey & Whitney to sue the city to force them to recognize the petition effort and confirm the citizen's right to have a public vote on the issue. After several delays on the part of the city, the issue finally came before a Hennepin County District Court judge on October 21, 2015. At the hearing, the city made numerous claims as to why citizens had no rights, some of which conflicted with each other. The citizens group attorney pointed over and over again to the provision in state law which stated that any government managed trash collection plan would be subjected to regulations in a city's home rule charter, which Bloomington has.
In November and December 2015, while the Court was reviewing the issue, Bloomington continued pressing forward, awarding another $100,000 contract to their consulting firm and setting aside $1,500,000 for implementation. The council took this action with full knowledge that an order from the Court could ultimately undo their efforts.
During Christmas Week, the city quickly passed changes to city ordinances in order to institute their government managed trash collection plan.
On January 5, 2016, District Court issued an order asking both parties to submit briefs to answer the question of whether the city's government managed trash plan would be more appropriate for the voters to challenge as a city ordinance or a modification to the city's home rule charter. The judge indicated that once briefs were submitted, he would call a second hearing on the issue.
The first week of January 2016, the citizens group collected the necessary signatures to stop the new ordinance from going into effect through a referendum petition effort.
When they submitted their signatures to the city clerk within the 15 day timeline, she informed them that they would have 30 additional days in which to correct any problems.
A few days later they get back a letter from the city informing them that while they had enough verified names on their petition, the city was not going to recognize the petition because of two procedural errors and their claim that state law prohibited citizen petitions on this issue (the basis of the ongoing lawsuit). The surprising part was that the city attorney overruled the city clerk and claimed that there was no 30 day time period to correct the procedural issues.
By the city attorney overruling the city clerk on this referendum petition issue, this will allow the city to continue to press forward with their plan until the Court rules otherwise.
It is believed that the city is moving at full speed to implement their government managed collection program before the Court issues its ruling. If the Court ruling is not in the city's favor, they will attempt to stop a citizen vote under the guise that the new system is already in place and cannot be reversed.
April 25, 2016 Hennepin County District Court Judge James A. Moore denied the citizens effort to change city ordinances on trash collection by citizen petition. (link)
The city immediately claimed victory, and issued a press release that only addressed the first 8 of 9 pages of the Court's ruling. In these first 8 pages, the Court stated that citizens could not petition to have a question placed on the ballot to change a city ordinance because theoretically, the city council could undo the vote a week after the public vote.
What the city failed to mention was page 9 of the ruling. The Court stated, "If Plaintiffs wish to re-define the powers of the city council, they are free to seek amendment of the city charter under Minn. Stat. § 410.12."
Upon receiving direction from the Court to file a second petition to modify the Bloomington City Charter, the citizens group immediately collected the remaining signatures needed to satisfy this requirement.
In May 2016, the citizens group submitted over 2000 signatures, well above the number required, to modify the Bloomington City Charter. In June the city's charter commission forwarded the petition to the city council. The city clerk reviewed the signatures and found the petition to be legally sufficient.
On June 27th, the city council rebuked the citizens group, refusing to place the issue on the November 2016 election ballot, now making new claims that the ballot questions was "manifestly unconstitutional."
In August 2016, citizen group members filed suit against the City of Bloomington for a second time. The citizen group is asking the Court to overturn the city council's decision refusing to place the charter amendment on the ballot. The city responded with the same tired arguments used in their first case, in addition to stepping up its efforts to institute government managed collection prior to the court hearing.
One of the arguments the city attempted to use in Court was that they were nearly finished with the takeover and it would be improper to stop them now. They failed to acknowledge that most of their efforts were actually accomplished during this litigation. The city refused to do the ethical thing which would have been to keep the current open market system in place while waiting for a decision of the Court.
On October 17, 2016, the Court heard oral arguments from both parties concerning the second lawsuit against the city. City Attorney George Hoff, when pressured by the judge to answer the question of under what circumstances would a citizen vote be allowed, admitted that the city would never allow government managed trash to be placed on the ballot.
In January 2017, the Court dismissed the second citizen lawsuit now claiming that the state's solid waste act blocked citizen petitions. The citizens group prevailed on the remaining points.
The citizens group immediately filed an appeal with the Minnesota Court of Appeals. Written briefs have been submitted and oral arguments were heard on September 13, 2017.
On November 20, 2017, the Minnesota Court of Appeals ruled against the citizens group, stating that the state's solid waste act does not allow the citizens group to file a charter amendment petition to require voter approval prior to establishing a government managed waste collection program.
On December 20, 2017, the citizens group appeals to the Minnesota Supreme Court.
On January 24, 2018, the Minnesota Supreme Court grants the citizens group request for a hearing, and denies the city's request to review issues they wished to raise.
On June 20, 2018 the Minnesota Supreme Court overturns the Minnesota Court of Appeals and rules that the citizens group actions did not violate the state's solid waste act. The Minnesota Supreme Court returns the case to the Minnesota Court of Appeals to rule on two remaining matters.
On June 28, 2018, the Minnesota Court of Appeals took the remaining items under advisement and ruled against the citizens group again on October 29, 2018, stating that their charter amendment process was improper because it required less signatures for acceptance than a charter referendum petition. The Court of Appeals, in its opinion, identified the math that was used to support their conclusion. Since neither the citizens group or the city brought forward this issue, it was not surprising that the Court of Appeals made several factual errors in their analysis. The Court of Appeals had no idea that Bloomington holds city elections in off election years opposite of state general elections. In this situation 5% of the voters in a state general election year is significantly more than 15% of the voters in a city off year election. The Court of Appeals incorrectly assumed that 15% was greater than 5% when in fact it is exactly the opposite due to low turnout in off year city elections.
On November 28, 2018, the citizens group appeals to the Minnesota Supreme Court.
On January 15, 2019, the Minnesota Supreme Court, for a second time, accepts the citizens group's request for review.
On June 12, 2019, the Minnesota Supreme Court heard oral arguments in the case.
A decision of the Minnesota Supreme Court is still pending as of January 2020.
Media:
In the city's efforts to move forward with government managed collection, there has been two different messages projected by the media. Local Bloomington weekly newspaper reporter Mike Hanks has slanted coverage in order to highly praise the city's efforts. Not surprisingly, the city happens to be a client of that newspaper, paying them thousands of dollars per year to print public notices. The Star Tribune's John Reinan, and KARE-11's John Croman have worked to provide balanced coverage on the issue.
Foth:
In 2013, the council retained a company named Foth to assist them in moving to government managed trash collection. The lead consultant is named Dan Krivit. Foth and Krivit have currently billed the city of Bloomington over $250,000 in fees. Foth has made millions of dollars off taxpayers for city council efforts to institute government managed trash collection systems, taking away citizens right to choose the best service for the best value. Recently, Mr. Krivit was cited by the State of Minnesota for numerous violations of the Minnesota Data Practices Act related to his refusal to respond to public information requests and refusal to turn over public documents as required by State Law and his contract with the City of Bloomington.
Research by Garbage Haulers for Citizen Choice
Garbage Haulers for Citizen Choice (GHCC) has been monitoring this process and filing public information requests with the city since mid-2014.
GHCC has reviewed thousands of pages of public documents on this issue. Research has shown the following:
GHCC continues to monitor the process and will post additional information as received.
Public documents obtained by GHCC are posted on the Bloomington Documents page.
Updated 8/12/20
2. Citizen Petition (link)
3. Councilmember Cynthia Bemis Abrams speech opposing city efforts on the grounds that no city goals were being met (May 4, 2015 Council meeting) (link)
4. Mayor Gene Winstead misleads citizens at March 21, 2015 presentation and then has video posted prominently on city website (link)
5. Public Works Director Karl Keel speaks out. He informs council in writing that there is minimal to no improvement in safety, roads, or environment with proposed city trash plan (July 11, 2014) (link)
6. Safety record: Trash vehicles vs. Bloomington City vehicles (link)
7. City trash consultant Dan Krivit with Foth Infrastructure and Environment, LLC violates numerous provisions of the Minnesota Data Practices Act according to State Watchdog Agency (link)
8. City Documents Uncovered (link)
9. Jennissen et al v. City of Bloomington 27-CV-15-11494 (link)
10. Jennissen et al v. City of Bloomington 27-CV-16-10786 (link)
11. Jennissen et al v. City of Bloomington, Court of Appeals A17-0221 (link)
12. Jennissen et al v. City of Bloomington, Supreme Court A17-0221, Jennissen Petition for Review (link)
13. Jennissen et al v. City of Bloomington, Supreme Court A17-0221, Bloomington Petition for Cross-Review (link)
14. Jennissen et al v. City of Bloomington, Supreme Court A17-0221, Jennissen Petition Granted, Bloomington Petition Rejected (link)
15. Jennissen et al v. City of Bloomington, Supreme Court A17-0221, Court of Appeals ruling against Jennissen reversed and remanded back to that court for further proceedings (link)
15. Jennissen et al v. City of Bloomington, Court of Appeals A17-0221, Court of Appeals rules against Jennissen for second time. Court misstates election statistics, showing lack of understanding that City of Bloomington holds municipal elections in opposite years as state general election, not the same year (link)
16. Jennissen et al v. City of Bloomington, Supreme Court A17-0221, Jennissen Petition for Review (link)
17. Jennissen et al v. City of Bloomington, Supreme Court A17-0221, Bloomington Petition for Cross Review (link)
18. Jennissen et al v. City of Bloomington, Supreme Court accepts Jennissen case for review, accepts city's petition for cross review. Date of the hearing scheduled for Wednesday, June 12, 2019, MN Supreme Court building, Room 300. The public may attend.
Summary of Bloomington City Council process
In 2013, the City of Bloomington began the process of moving to government managed trash collection.
Throughout 2014, the city held internal meetings with staff and consultants out of the public eye. Staff emails indicate that early on, some wished to kick out numerous haulers who have served the city for many years and replace them with only one single hauler. This hauler would be picked by the city council, with a one size fits all plan for citizens, eliminating individual choice.
Staff is also using the process to justify adding a $100,000+ solid waste manager position to the city payroll. Staff has not indicated how they will pay for this new position, but one option would be for the city to place a hidden fee on all residential trash bills.
In late 2014, the council publicly announced their intent to create a government managed trash collection system. They voted to trigger the 60 day negotiation provision in state law and began meeting with haulers.
On February 2, 2015, the council rejected the proposed consortium plan brought forward by the haulers. A consortium plan would have divided the city into zones and every current hauler would be given a zone and allowed to keep their existing market share. While a consortium would eliminate choice, it would not drive existing locally owned haulers out of business.
Instead, the council voted to form a committee with the propose of kicking out existing locally owned haulers and replacing them with one single hauler. State law requires that the city council appoint a committee to study options before moving to a government managed trash collection system with one hauler.
The council appointed three elected officials and two employees to this committee which met several times a month. No public comment was allowed prior to the council's vote on establishing the committee and city emails show that citizens were specifically excluded from applying or serving. When a citizen expressed concern as to there being no citizen representation on this committee, Mayor Winstead replied that the legislation does not require it. When asked if the legislation prohibited citizen involvement, the mayor had to admit "no". City emails also show that Councilmember Baloga was adamantly opposed to allowing citizen comments at these committee meetings.
On April 23, 2015, the City Council hosted an open house where the public was invited to come to city hall and ask questions about the city's proposed government managed trash collection plan. The open house was poorly advertised and turnout was low. City staff provided resident feedback forms. By a 2:1 margin, those in attendance opposed the city's plan to eliminate choice. Several residents complained that the city ran out of handouts, had poorly designed and difficult to understand displays, and that only one council member bothered showing up for the open house.
On May 4, 2015, the City Council discussed their proposed government managed trash collection plan at a regularly scheduled meeting. The item was not heard until 10pm. Past council discussions on the issue have also been held at late hours. Mayor Winstead again blocked public comment. The public would have to continue waiting for the council to schedule a formal public hearing.
One by one, the mayor and councilmembers attempted to justify their decision to take away citizen choice. Councilmember Dwayne Lowman attempted to soften his support for eliminating choice by claiming that sometime in the future he would attempt to bring choice back to the city. Councilmember Tim Busse, a communications director at the U of M, disputed the public works director's statements that safety would not improve and road repair costs would not go down any measurable amount with government managed trash collection.
Councilmember Cynthia Bemis Abrams was the only member who spoke out against government managed trash collection. She clearly articulated that the proposal before the council did not meet any of the city's goals. The proposal will not reduce waste and will not increase recycling in the city. It will not improve safety. It will not make any measurable reduction in road repair costs. In her presentation, she extensively quoted a report from Bloomington Public Works Director Karl Keel, who dismissed claims that safety would improve and road repair costs would decrease with government managed trash collection.
The council voted to move forward with government managed trash collection, eliminating citizen choice, on a 6-1 vote with Ms. Bemis Abrams voting NO.
On May 18, the council set the first and only public hearing on this issue for June 1, 2015. After two years of council work on the issue, and expenditures of over a half million dollars in taxpayer funds and resources, the first public hearing on the issue will be held.
The public will be given its first and only opportunity to participate in the process at this meeting. The council has not set a date as to when they will call the vote to institute government managed trash collection. In following past practice of the council, the final vote will most likely be at the end of a long meeting agenda and close to the midnight hour. Most likely no citizen comments on the issue will be taken moments before the final vote.
At the public hearing, over 500 people came to city hall to speak out against the city's government managed collection program. Staff indicated that this was the largest turnout in recent memory for a city council public hearing. Approximately 100 people spoke at the hearing. Several testifiers held up their trash bills and told councilmembers that their so called plan to save them money was actually going to raise their bills. One professional statistician pointed out that the city's claims of how much money residents would save was statistically inaccurate due to city staff not understanding how to properly use mean, median, and mode numbers.
As expected, the city council voted 6-1 to move forward with government managed collection after the hearing.
In the fall of 2015, a citizens group started the petition process to gather signatures to place the city's government managed trash collection issue on the ballot. Not surprisingly, the city attorney immediately worked to stop the petition process, claiming that citizens had no right to challenge the council's authority even though Bloomington is a charter city with Initiative, Referendum, and Recall.
The citizens group then retained the law firm of Dorsey & Whitney to sue the city to force them to recognize the petition effort and confirm the citizen's right to have a public vote on the issue. After several delays on the part of the city, the issue finally came before a Hennepin County District Court judge on October 21, 2015. At the hearing, the city made numerous claims as to why citizens had no rights, some of which conflicted with each other. The citizens group attorney pointed over and over again to the provision in state law which stated that any government managed trash collection plan would be subjected to regulations in a city's home rule charter, which Bloomington has.
In November and December 2015, while the Court was reviewing the issue, Bloomington continued pressing forward, awarding another $100,000 contract to their consulting firm and setting aside $1,500,000 for implementation. The council took this action with full knowledge that an order from the Court could ultimately undo their efforts.
During Christmas Week, the city quickly passed changes to city ordinances in order to institute their government managed trash collection plan.
On January 5, 2016, District Court issued an order asking both parties to submit briefs to answer the question of whether the city's government managed trash plan would be more appropriate for the voters to challenge as a city ordinance or a modification to the city's home rule charter. The judge indicated that once briefs were submitted, he would call a second hearing on the issue.
The first week of January 2016, the citizens group collected the necessary signatures to stop the new ordinance from going into effect through a referendum petition effort.
When they submitted their signatures to the city clerk within the 15 day timeline, she informed them that they would have 30 additional days in which to correct any problems.
A few days later they get back a letter from the city informing them that while they had enough verified names on their petition, the city was not going to recognize the petition because of two procedural errors and their claim that state law prohibited citizen petitions on this issue (the basis of the ongoing lawsuit). The surprising part was that the city attorney overruled the city clerk and claimed that there was no 30 day time period to correct the procedural issues.
By the city attorney overruling the city clerk on this referendum petition issue, this will allow the city to continue to press forward with their plan until the Court rules otherwise.
It is believed that the city is moving at full speed to implement their government managed collection program before the Court issues its ruling. If the Court ruling is not in the city's favor, they will attempt to stop a citizen vote under the guise that the new system is already in place and cannot be reversed.
April 25, 2016 Hennepin County District Court Judge James A. Moore denied the citizens effort to change city ordinances on trash collection by citizen petition. (link)
The city immediately claimed victory, and issued a press release that only addressed the first 8 of 9 pages of the Court's ruling. In these first 8 pages, the Court stated that citizens could not petition to have a question placed on the ballot to change a city ordinance because theoretically, the city council could undo the vote a week after the public vote.
What the city failed to mention was page 9 of the ruling. The Court stated, "If Plaintiffs wish to re-define the powers of the city council, they are free to seek amendment of the city charter under Minn. Stat. § 410.12."
Upon receiving direction from the Court to file a second petition to modify the Bloomington City Charter, the citizens group immediately collected the remaining signatures needed to satisfy this requirement.
In May 2016, the citizens group submitted over 2000 signatures, well above the number required, to modify the Bloomington City Charter. In June the city's charter commission forwarded the petition to the city council. The city clerk reviewed the signatures and found the petition to be legally sufficient.
On June 27th, the city council rebuked the citizens group, refusing to place the issue on the November 2016 election ballot, now making new claims that the ballot questions was "manifestly unconstitutional."
In August 2016, citizen group members filed suit against the City of Bloomington for a second time. The citizen group is asking the Court to overturn the city council's decision refusing to place the charter amendment on the ballot. The city responded with the same tired arguments used in their first case, in addition to stepping up its efforts to institute government managed collection prior to the court hearing.
One of the arguments the city attempted to use in Court was that they were nearly finished with the takeover and it would be improper to stop them now. They failed to acknowledge that most of their efforts were actually accomplished during this litigation. The city refused to do the ethical thing which would have been to keep the current open market system in place while waiting for a decision of the Court.
On October 17, 2016, the Court heard oral arguments from both parties concerning the second lawsuit against the city. City Attorney George Hoff, when pressured by the judge to answer the question of under what circumstances would a citizen vote be allowed, admitted that the city would never allow government managed trash to be placed on the ballot.
In January 2017, the Court dismissed the second citizen lawsuit now claiming that the state's solid waste act blocked citizen petitions. The citizens group prevailed on the remaining points.
The citizens group immediately filed an appeal with the Minnesota Court of Appeals. Written briefs have been submitted and oral arguments were heard on September 13, 2017.
On November 20, 2017, the Minnesota Court of Appeals ruled against the citizens group, stating that the state's solid waste act does not allow the citizens group to file a charter amendment petition to require voter approval prior to establishing a government managed waste collection program.
On December 20, 2017, the citizens group appeals to the Minnesota Supreme Court.
On January 24, 2018, the Minnesota Supreme Court grants the citizens group request for a hearing, and denies the city's request to review issues they wished to raise.
On June 20, 2018 the Minnesota Supreme Court overturns the Minnesota Court of Appeals and rules that the citizens group actions did not violate the state's solid waste act. The Minnesota Supreme Court returns the case to the Minnesota Court of Appeals to rule on two remaining matters.
On June 28, 2018, the Minnesota Court of Appeals took the remaining items under advisement and ruled against the citizens group again on October 29, 2018, stating that their charter amendment process was improper because it required less signatures for acceptance than a charter referendum petition. The Court of Appeals, in its opinion, identified the math that was used to support their conclusion. Since neither the citizens group or the city brought forward this issue, it was not surprising that the Court of Appeals made several factual errors in their analysis. The Court of Appeals had no idea that Bloomington holds city elections in off election years opposite of state general elections. In this situation 5% of the voters in a state general election year is significantly more than 15% of the voters in a city off year election. The Court of Appeals incorrectly assumed that 15% was greater than 5% when in fact it is exactly the opposite due to low turnout in off year city elections.
On November 28, 2018, the citizens group appeals to the Minnesota Supreme Court.
On January 15, 2019, the Minnesota Supreme Court, for a second time, accepts the citizens group's request for review.
On June 12, 2019, the Minnesota Supreme Court heard oral arguments in the case.
A decision of the Minnesota Supreme Court is still pending as of January 2020.
Media:
In the city's efforts to move forward with government managed collection, there has been two different messages projected by the media. Local Bloomington weekly newspaper reporter Mike Hanks has slanted coverage in order to highly praise the city's efforts. Not surprisingly, the city happens to be a client of that newspaper, paying them thousands of dollars per year to print public notices. The Star Tribune's John Reinan, and KARE-11's John Croman have worked to provide balanced coverage on the issue.
Foth:
In 2013, the council retained a company named Foth to assist them in moving to government managed trash collection. The lead consultant is named Dan Krivit. Foth and Krivit have currently billed the city of Bloomington over $250,000 in fees. Foth has made millions of dollars off taxpayers for city council efforts to institute government managed trash collection systems, taking away citizens right to choose the best service for the best value. Recently, Mr. Krivit was cited by the State of Minnesota for numerous violations of the Minnesota Data Practices Act related to his refusal to respond to public information requests and refusal to turn over public documents as required by State Law and his contract with the City of Bloomington.
Research by Garbage Haulers for Citizen Choice
Garbage Haulers for Citizen Choice (GHCC) has been monitoring this process and filing public information requests with the city since mid-2014.
GHCC has reviewed thousands of pages of public documents on this issue. Research has shown the following:
- There was minuscule participation in city surveys and open house meetings which the city cites as support for a government managed trash collection system.
- Staff rejected a consortium plan and wanted a single hauler for the city dating back to February 2014.
- Staff criticized an article written by Bloomington Sun reporter Don Heinzman.
- Consultant provided political advice as to when to spring government managed trash collection on the community. Taxpayers were billed for this political advice.
- Consultant provided political information about GHCC to city staff. Taxpayers were billed for this political information.
- Staff was informed that a substantial amount of solid waste produced in the city comes from commercial users, which would not be affected by the proposed government managed trash collection system.
- Staff used nicknames such as “E3, Wedge, Big Bang” when describing the move to a government managed trash collection. “Big Bang” was the plan to move to a single citywide hauler.
- At one point in the process, staff and their consultant accuse each other of unprofessional behavior.
- Consultant invoiced the city for “political” work.
- Consultant advised the city on how to shorten the process to move to government managed collection, therefore reducing the opportunity for public input.
- Consultant asked the city to NOT put certain details in writing in order to prevent them from being obtained through public information requests.
- Consultant indicates opposition to additional public input in the process.
- Staff discusses public relations strategy to divide the new Solid Waste Manager position from the effort to move to government managed trash collection.
GHCC continues to monitor the process and will post additional information as received.
Public documents obtained by GHCC are posted on the Bloomington Documents page.
Updated 8/12/20