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Ask LMC: Caring for Trees in the City Right-of-Way

Public Right-of-Way
Q:Who is responsible for maintaining trees in the city’s right-of-way?

cutting treeLMC: The control and care of trees in the public right-of-way involves common law right-of-way principles. Property owners generally own all of the land up to the center of the street in front of their house, including trees.

However, the city has easement rights in the public street, and with it comes a “duty of care.” For the city, this includes an obligation to maintain the trees in the right-of-way. Although the landowner may own the trees, the landowner does not generally have a legal obligation to take care of easement trees. While the city can pass an ordinance requiring the landowner to maintain trees in the right-of-way, that is a duty owed to the city, not the general public. Thus, the city can still be held liable for injuries to third parties and property damage caused by trees in the right-of-way. To minimize claims and improve tree health, cities should implement a regular inspection and maintenance program. For more on this topic, see the LMC information memo at www.lmc.org/trees.

Family and Medical Leave Act
Q: Can the city force an employee to use Family and Medical Leave Act (FMLA) leave? I have an employee who says that the city can’t make him use that if he still has paid leave on the books.

LMC: The city has the right to designate any leave requested and taken for a reason that would qualify as FMLA leave. Sometimes employees believe they can take all of their paid leave and save their FMLA leave for a rainy day, but the law allows the city to run any paid leave concurrently with the FMLA so that the city is not required to give more than the 12 weeks mandated by the FMLA. The League recently updated its FMLA Model Policy, and it is available at www.lmc.org/fmlapolicy.

Conflict of Interest
Q: Can the city council contract to buy construction materials from a councilmember’s business?

LMC: The law allows a city council in a city with a population of 1,000 or less to contract with one of its officers for construction materials or services through a sealed bid process. The councilmember who owns the business must abstain from voting, and the council must approve the contract by unanimous vote.

State law generally prohibits public officials from having a personal interest or financial benefit in the contracts that they make. However, a few exceptions do exist and they are specifically identified by statute. Additionally, they require a unanimous vote from the rest of council to proceed with the contract.

Councilmembers are also prohibited from taking part in decisions in which their personal interests are so different from the public’s that they cannot fairly represent the public interest.

Because the specific facts of each situation are crucial to identifying a potential conflict of interest, it is of the utmost importance that you contact your city attorney for a legal opinion. For more on this topic, read the LMC information memo at www.lmc.org/conflict.

Collaboration
Q: Our city is interested in collaborating with other cities and organizations to provide services more efficiently. Where can I find ideas for ways our city can do this?

LMC: The League of Minnesota Cities maintains a database of city collaborative efforts—called the City Collaboration Lookup Tool—which cities can use to gather ideas and inspiration. The League gathers examples from interactions with city elected officials and staff, from media coverage of local governments, and from survey work. About 3,000 examples of city collaboration are currently in the database. City officials can search the database by looking up a specific city or a particular service category, such as parks and recreation. If you see something interesting, you can contact the cities directly for more information about the initiative. And don’t forget, if your city has some examples to share, please let the League know! You can fill out an online form to share information about your city’s collaborations. Learn more and access the City Collaboration Lookup Tool at www.lmc.org/collaboration.

Got questions for LMC? Send your questions to choffacker@lmc.org.

Read the May-June 2014 issue of Minnesota Cities magazine

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