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HomeMy WebLinkAboutCC Minutes - 05/29/02 Work Session MINUTES Eugene City Council Work Session McNutt Room--Eugene City Hall May 29, 2002 Noon COUNCILORS PRESENT: David Kelly, Nancy Nathanson, Pat Farr, Scott Meisner, Betty Taylor, Bonny Bettman. COUNCILORS ABSENT: Gary Rayor, Gary Pap~. Mayor James D. Torrey called the meeting to order. A. WORK SESSION: Discussion of Recommended Amendments to the Eugene City Charter City Manager pro tern ,Jim Carlson introduced the item, which was to consider proposed revisions to the City Charter proposed by the Citizen Charter Review Committee. He noted that Mary Walston of the City Manager's Office, staff to the committee, was on hand to make the staff presentation, and City Attorney ,Jerry Lidz was available to answer questions. Ms. Walston reminded the council that the committee had forwarded its final report to the council on ,January '14, 2002. The council had a work session on the recommendations on ,January 28, and at that time the recommendations were categorized as "housekeeping," "minor," or "substantial." She asked the council for direction on the "housekeeping items," for discussion of the two items listed as "minor" for possible move to the "housekeeping" list, for council suggestions for further charter changes, and for direction regarding potential election dates. Ms. Walston called the council's attention to a proposed schedule of work sessions to complete the review of the committee's recommendations. Ms. Walston noted that the council officers recommended that the council proceed in a Consent Calendar format. Mr. Kelly endorsed the work session schedule and order proposed by staff, and implored the council to follow the schedule so it did not leave any of the work of the committee "on the table." He reminded the council that its decision was to refer the changes proposed by the committee to the voters, not to make the changes contemplated. Mr. Kelly, seconded by Ms. Nathanson, moved to place all of the 32 items listed as housekeeping in the staff memorandum dated February '1 '1, 2002, on an upcoming ballot. Mr. Kelly noted that the motion reflected the committee's recommendation to remove all of Section 5'1 from the charter. The motion also reflected the changes to Section 54, the toxics right-to-know charter amendment, recommended by the committee. MINUTES--Eugene City Council May 29, 2002 Page 1 Work Session Ms. Bettman determined from Ms. Walston that Subsection (1) of Section 51 would also be proposed to the voters for deletion if the motion passed. Ms. Bettman said that housekeeping items should be noncontroversial, and while she had no problem with the language, she did not think it was a good idea to include the item if it could be construed in any way as controversial. Mr. Meisner supported the motion and hoped that the council would address each issue by placing a motion on the table prior to discussion as a way to focus discussion. Mr. Carlson indicated that staff identified an additional minor housekeeping change in Section 16, which clarifies the role of the manager in the budget process; as State law allows a biennial budget, he recommended as a friendly amendment to the motion that the word "annual" be struck. Mr. Kelly determined the City Manager would seek council authority to move to a biennial budget process. He and Ms. Nathanson accepted the friendly amendment. Ms. Taylor noted that she e-mailed a request to the mayor that the Citizen Charter Review Committee members be involved in the discussion so they could offer clarifications of interpretation. Mayor Torrey said he discussed the issue with the manager and they agreed that the council alone should be involved in the discussion. Responding to a question from Ms. Taylor about the nature of the Toxics Board's objections to the changes proposed by the committee to Section 54, Mr. Lidz said that the change proposed by the committee responded to the Court of Appeals' decision related to the amendment and struck the language the court declared invalid. The board objected to the change because it believed even if the language was not in effect because of the court decision, it would breach faith with the voters to remove the language from the charter. He reiterated that the language in question was not in effect because it could not be applied. Ms. Taylor wanted to keep all the housekeeping items together, but pointed out if a councilor disagreed as to whether an item was a housekeeping item, voters might also disagree. She wanted all the charter changes to be offered to the voters on the November 2002 ballot. Ms. Bettman thought it important to have unanimous agreement about the housekeeping items because she thought the voters would take that fact into consideration as they considered the ballot measure. She thought the changes suggested to Section 54 could be listed as a minor change as a separate measure. Ms. Nathanson wanted to keep the housekeeping items together, but did not want to jeopardize them by bundling them with something controversial. Because of the concerns shared by Mr. Kelly, Ms. Taylor, and Ms. Bettman about the potentially controversial nature of the changes being proposed to Section 54, councilors agreed by friendly amendment that it was not part of the motion. The motion, with the friendly amendments enumerated above, passed unanimously, 6:0. Ms. Taylor, seconded by Mr. Kelly, moved to allow the members of the Citizen Charter Review Committee to participate in the discussion if they asked to be recognized. MINUTES--Eugene City Council May 29, 2002 Page 2 Work Session Mr. Kelly emphasized that he could not support the motion without the phrase "if they asked to be recognized." He encouraged the council to take advantage of the committee members' expertise. Mr. Meisner said that he did not support the motion as it was not in keeping with past council practice. He said the council could always ask questions of members in attendance, and noted that the council heard the committee's final presentation and received its final report. Ms. Taylor denied that the motion was not in keeping with past practice; when Ken Tollenaar, a member of the committee, was on the council, it had occurred at least once. If the council was overlooking something or misinterpreting the committee's intent, she thought it would be valuable for the council to hear from the members. Mr. Farr agreed with Mr. Meisner. He said that if the council had questions of the committee members, councilors could ask them. Mr. Carlson said that it did not matter what the committee meant, what mattered was the text before the council and the legal meaning of that text. He said the council could always ask questions, but the committee could no longer speak as a body. He pointed out that not all members were present, and individuals would be speaking as individuals rather than as members of the committee. The motion failed, 4:2; Ms. Taylor and Mr. Kelly voting yes. The council returned to discussion of Section 54. Ms. Bettman said that the Toxics Board supported retaining the current language, acknowledging that the text in question was not valid. However, State law changes, and if the text was in place if a change occurred, it could be valid again. Ms. Bettman, seconded by Mr. Kelly, moved to put amendments to Section 54 back on the housekeeping list, except the proposed amendments to Section 3(A) and 3(E)(5). Ms. Bettman noted that other amendments were acceptable to the Toxics Board, and the two subsection changes were controversial and should not be considered housekeeping items for that reason. Mr. Kelly supported the motion. He thought it satisfied the concerns expressed by Ms. Nathanson and Ms. Bettman. The changes would be considered later under the topic of minor amendments. He pointed out that in addition to substantive changes, Section 3(A) also included three very minor wording and renumbering changes, and he wanted to ensure that those went forward in the housekeeping changes. Ms. Bettman concurred. Mr. Farr said he would support the motion because it was regarded by at least one councilor as controversial. The motion passed unanimously, 6:0. MINUTES--Eugene City Council May 29, 2002 Page 3 Work Session Mr. Kelly, seconded by Ms. Nathanson, moved to add the proposed revision to Section 45(1), concerning shod-term debt for the Eugene Water & Electric Board (EWEB), to the list of noncontroversial items. Mr. Kelly recalled that the council discussed the issue before, and he perceived it as a housekeeping item. He said that EWEB suggested the change after the committee completed its task, and it essentially recognized that there were financial entities other than banks. Ms. Walston recalled discussion of the suggested change with the EWEB commissioners at the February 25, 2002, joint work session. There had been agreement at that time to pursue the change. Mr. Meisner said he would support the motion but was somewhat concerned that staff was not working toward a broader resolution of the other, larger issues related to EWEB. He had heard no progress reports related to the issues, and he wanted to know what progress was being made with those discussions. He interpreted the motion as maintaining the status quo and even giving EWEB more independent authority. Mr. Meisner thought the relationship between the City and EWEB needed to be better defined. He recollected the council giving direction to staff to establish a new committee relationship with EWEB to look at the EWEB-City charter issues. Ms. Bettman expressed concern that the text before the council exceeded the definition of "housekeeping," and noted that the text before the council was not considered by the committee. She said that the last sentence, which sounded like a "fire wall," was not a concept discussed by the committee. Ms. Bettman thought the voters would perceive the change as going beyond housekeeping, and the council would have to work to clarify the issue. She called for the development of a list of minor amendments that could be forwarded to the voters along with the housekeeping changes. Ms. Taylor opposed the motion because she thought the issue should be addressed as a minor change rather than a housekeeping change. Ms. Nathanson said that housekeeping changes were often not just clerical errors or minor in nature. They were often needed to meet changes in the law. She considered the first part of the proposed change a housekeeping change because it merely addressed a change in terminology. She considered the more substantial change that which provided more protection to the public, and which placed more constraint on EWEB. She said that might not be housekeeping in nature, but she thought the voters would appreciate the extra protection. Mr. Kelly agreed with Ms. Nathanson. Speaking to Mr. Meisner, he said he also wanted to see a joint EWEB-City committee or task force to look at the fundamentals of the relationship, but he thought the motion could be considered separately from that. Mr. Kelly asked the committee members present if they had comments on the proposed change, based on what the committee discussed. Mr. Tollenaar said that the committee considered the language offered by EWEB, with the exception of the last sentence in the proposed addition to Section 45(1). He agreed that the remaining text was housekeeping in nature, but wanted to call out for the council that it was his opinion that the given current circumstances surrounding MINUTES--Eugene City Council May 29, 2002 Page 4 Work Session EWEB, the change might or might not be controversial. He said that it depended on what the council wanted to do with it. Ms. Bettman thanked Mr. Tollenaar for the clarification. She thought that the last sentence was something the council might have added if it had not been there already. She reiterated her hope that all the council's votes on housekeeping items were unanimous. Mr. Carlson said that the item arose from discussion between the Eugene council and the board. He agreed that it was a noncontroversial item. Mr. Fart agreed with Ms. Bettman's remarks regarding the need for votes on the housekeeping items to be unanimous. The motion passed unanimously, 6:0. The council considered the "minor" amendments. Mr. Kelly, seconded by Ms. Nathanson, moved to refer the Citizen Charter Review Committee-recommended changes to Section 54(3)(A) and Section 54(3)(E)(5) to the voters as a minor amendment. Mr. Lidz said that the Court of Appeals held the City could not apply the two definitions or portions of definitions that Mr. Kelly's motion placed on the floor. The court also held the City could not apply the sections related to the definition of hazardous substances that included pesticides as local pesticide regulation was precluded by the State. He said that there was uneven treatment of the portions of the court's decisions, and he thought there was a good reason for that. Mr. Lidz thought there was little likelihood that the courts would change the doctrine that led the court to its original conclusion the two subsections could not be applied. There was a slight chance that the State would reduce the way in which it regulated pesticides so that the City could do what the charter amendment asked it to do. Ms. Bettman did not want to change the text of a relatively new charter amendment in reaction to the court decision. She asked if there was a way to address the court decision through the City's administrative rules or an implementing ordinance so the charter amendment text could remain intact. Mr. Lidz responded that there was no good way to leave the amendment intact and address the issue, other than not to enforce those provisions. That was what the Toxics Board had been doing. The proposal from the committee was to take the subsection out of the charter and establish a process for the council to add new chemical substances to the list of substances to be reported to the City. That action would be taken by the council following a recommendation from the Toxics Board each time a substance was added to a federal or State list. Ms. Bettman said she preferred to follow the recommendation from the Toxics Board, which was a well- balanced board with representatives from both right-to-know advocates and businesses required to report. She opposed the motion. Mr. Fart determined from Ms. Bettman that she opposed the motion because she was deferring to the recommendation of the Toxics Board. Ms. Bettman pointed out that leaving the sections in the charter would not affect how the City implemented the law. MINUTES--Eugene City Council May 29, 2002 Page 5 Work Session Ms. Nathanson asked about the differences between the board and committee, and why it was a bad idea to remove the text in question. Mayor Torrey also questioned why the council should not refer the committee's recommendation to the voters. Ms. Walston said that the committee asked the board for assistance, and the board submitted a letter regarding its recommendations. The board was not entirely in agreement with the committee's recommendation, and the committee did not come to final agreement, and forwarded the recommendations it did agree on. She noted the memorandum on the topic from the Toxics Board, included in the meeting packet. Ms. Taylor said that the text should not be referred for deletion because it was fairly recently passed by the voters. Mr. Meisner said he tended to support the motion. He thought it embarrassing and misleading to have provisions in the charter that were no longer valid. People will read the charter and not realize in the absence of footnotes that the section was invalid and cannot be enforced. He supported the motion. Mr. Kelly agreed with Mr. Meisner's remarks. He appreciated the points made related to the validity of the item. He said that the text to be placed in a ballot measure regarded deleting and adding items to the substance list. He recalled that the council agreed to delegate the authority to add and subtract items form that list to the City Manager, and wanted to ensure now that the council action to pass the motion would not override that delegation of authority. Mr. Lidz did not believe that it would, and suggested the two actions were consistent. Ms. Bettman did not necessarily think the changes being proposed were unproductive, but were being offered to a relatively new charter amendment and were superfluous regarding the implementation of the measure. Since there was a remote chance the State law could change, she wanted to retain the concept. She liked the idea of footnoting the charter to ensure that people were not confused. Mr. Fart said that the issue addressed by the charter amendment should never have been included in the charter in the first place. In terms of Ms. Bettman's argument regarding making changes to a relatively new charter amendment, he believed that conditions had changed regarding the wording of the charter, and it was important to bring things up to date. He supported the motion. The motion passed, 4:2; Ms. Taylor and Ms. Bettman voting no. Mr. Kelly, seconded by Ms. Nathanson, moved to revise Section 14 with the language proposed by the City Attorney, and add that item to the list of noncontroversial items. Mr. Kelly noted his own opposition to the motion, which he placed on the table in his role as council president. He said the section in question addressed conflict of interest. While he agreed the section needed clarification, he preferred the committee's text. The City Attorney's change would strike the second sentence of the committee's recommendation, which stated what the City Code must contain at a minimum related to the conflict. He said that the sentence was vital because the use of the phrase "disclose the reasons" goes beyond State law. He also thought it important that the charter reflect the fact that the community had a value around the issue of potential and actual conflict of interest through the procedures placed in code. MINUTES--Eugene City Council May 29, 2002 Page 6 Work Session Ms. Bettman indicated opposition to the motion. She thought that the issue in question was terribly important and wanted to see even stronger language related to conflict of interest in the charter. She said that the legal counsel's recommendation took all conflict of interest provisions out of the charter and codified it in ordinance. She thought that was a substantial difference. Ms. Bettman believed the issue would be controversial and preferred to see something modeled on what Salem had. Mr. Lidz said that staff recommended the deletion of the second sentence not because he thought it would be better to have the conflict of interest provisions in ordinance rather than charter, but because the second sentence retains the problematic phrase "pecuniarily interested," which had no commonly understood meaning. Mr. Lidz said the sentence also refers to potential or actual conflicts of interest, which was in State statute. It was not clear from the language whether the intent was to incorporate the State law interpretation of those terms or to use something different. If it was to incorporate the State law interpretations, there was potentially an argument that it locked in a current interpretation rather than a future interpretation. Mr. Lidz said that staff had assumed there would always be a State Ethics Code in place to address what was not covered by the ordinance or charter, and the question was the interplay between the charter provisions and the State provisions. Mayor Torrey expressed concern that the councilors most affected by the City's current conflict of interest provisions were not present for the discussion. He questioned if the council was setting itself up for the same discussion when those councilors returned, and asked if the discussion should proceed. The council agreed to proceed. Mr. Meisner said he had some discomfort with the council adopting a code of ethics through an ordinance. He said the proposed charter text gave the council authority to enact a code of ethics without being clear as to what was to be addressed in the code of ethics. He did not think voters would be comfortable with that. He said that second sentence indicated the code of ethics went beyond the concept of pecuniary interest. He asked what else would be included in such a code. Mr. Meisner suggested that staff investigate what other communities that done regarding the topic. Ms. Taylor did not understand objections to the phrase "pecuniary interest." Mr. Lidz reminded her of the council's recent vote on a resolution to transfer control of the AT&T cable franchise to Comcast. Councilors with two shares of AT&T stock would have a pecuniary interest in that decision. Ms. Taylor suggested that in such a case, the councilors should not participate in the vote. She did not want to take language related to conflict of interest out of the charter. She thought the language should be clear, and not just a statement the council should adopt a code. She said that there should be something in the charter, and it should be as strong as possible. Mr. Farr observed that he was not aware of all the stocks he owned through his 401(3)(k). He agreed with Ms. Taylor that the language should be strong and not be subject to interpretation. He also did not favor the language in front of the council, and asked what should be done next. Mr. Lidz said that staff could draft some language to address the concerns expressed by the councilors. Mayor Torrey said that he had purchased land on West 11th Avenue and was taken to the State Ethics Board because he voted to support Hyundai coming to town. He wanted to ensure that such issues were addressed adequately. He wanted language in the charter but wanted it to be MINUTES--Eugene City Council May 29, 2002 Page 7 Work Session clear so people knew what they were getting into. He asked if councilors would be precluded from voting in the case of a potential conflict of interest, or if the councilor would merely identify that conflict. He agreed new language was probably needed. Mayor Torrey pointed out that there were councilors who were covered by the Public Employees Retirement System, and he doubted whether they knew what stocks was in their accounts. Mr. Kelly said the discussion indicated the item was not a housekeeping item, and he urged the council to vote the motion down. He agreed with Mr. Meisner that there must be other cities with a strong desire for such language who had reached a reasonable legal resolution. He suggested that the council direct staff to do some more work on the issue. He believed the Salem provision was quite broad, and it was implemented through an adopted code of ethics. Ms. Walston referred the council to that provision, which was included in the committee's final report. Ms. Bettman agreed with Mr. Kelly. She said the City must find an approach that was comfortable to the community and that did not discourage people from running for office. She suggested the council postpone action on the committee's recommendation until it had further discussion. She questioned why the legal counsel, rather than developing a clarification of the term "pecuniarily interested" and how it would be applied to clarify the existing charter language, instead proposed to winnow the text and take the concept out of the charter. She preferred to maintain the intent of the language in the charter now to the best of the council's ability. Mr. Farr left the meeting. Ms. Nathanson determined from Ms. Walston that the council would see new text related to conflict of interest before the end of the review process. The motion failed, 5:0. Mr. Kelly, seconded by Ms. Nathanson, moved to direct staff to take the necessary action and prepare the required documents to place the noncontroversial items on the November 2002 ballot. Mr. Kelly noted the motion was specific to housekeeping items only and did not preclude the council from adding items at a later time. Mr. Meisner supported the motion without assuming November 2002 was the best time to place items on the ballot. He wanted more information about other measures from other jurisdictions that might appear on that ballot. Mr. Meisner called for consistency in the use of language, noting some recommendations were referred to as noncontroversial and some as housekeeping; the council needed to have more specificity about what was involved in each recommendation. He also wanted to ensure the material to be placed on the ballot was readable and understandable. Ms. Taylor wanted all the items from the committee on the November 2002 ballot. She did not think the issues should be postponed beyond that. She did not support a September 2002 election because she did not believe that people were paying attention at that time. Ms. Nathanson also was interested in having staff recommendations on how the material could be presented to the public in a form that was clear and obvious. She asked if the Public MINUTES--Eugene City Council May 29, 2002 Page 8 Work Session Information Officer would be involved in the preparation of those materials. She said that in past years she would have recommended a citizen advisory committee to overview the ballot materials. Ms. Bettman supported the motion, and shared Ms. Taylor's interest in putting all the items on a single ballot. Mr. Kelly endorsed the procedural suggestions offered by other councilors. He said that Springfield recently adopted a new charter and suggested it might be worth examining what Springfield did to explain its charter changes to the voters. The motion passed unanimously, 5:0. Ms. Walston solicited other items for further staff follow-up. Ms. Bettman had two issues for follow-up for possible inclusion in the charter: 1) enabling language for a living wage ordinance; and 2) organizationwide "whistle blower" protection. Mr. Meisner objected to discussing the living wage for inclusion in the charter given the council had not discussed the issue yet and reached mutual agreement on the topic. Ms. Taylor liked both Ms. Bettman's suggestions. Ms. Nathanson did not want to direct staff to do further work without the expressed majority support of the council. She asked if the work session was an opportunity to solicit follow-up work from staff. Ms. Walston said yes. The meeting adjourned at 1:30 p.m. Respectfully submitted, James R. Carlson City Manager pro rem (Recorded by Kimberly Young) MINUTES--Eugene City Council May 29, 2002 Page 9 Work Session