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HomeMy WebLinkAboutCC Minutes - 06/26/02 Work Session MINUTES Eugene City Council Work Session McNutt Room--Eugene City Hall June 26, 2002 Noon COUNCILORS PRESENT: David Kelly, Gary Pap~, Nancy Nathanson, Pat Farr, Scott Meisner, Betty Taylor, Gary Rayor, Bonny Bettman. CITY COUNCIL WORK SESSION Mayor James D. Torrey called the meeting to order. A.WORK SESSION: Judicial Evaluation Mr. Carlson introduced the item, saying this was the council's opportunity to discuss the judicial evaluation of Municipal Court Judge Wayne Allen, who was present to respond to comments and concerns. Mayor Torrey called for council comments. Mr. Meisner wanted to renew the contract to reappoint Judge Allen. He was very pleased about the closer working relationships between the presiding judge and other judges that developed during Judge Allen's tenure. He also praised the more active cooperation between the judge and court staff. Mr. Meisner wanted the City Council, when considering changes to criminal ordinances, to consult the judge as a matter of course. He encouraged Judge Allen to provide input to the council. Ms. Nathanson was also pleased at the close working relationships Judge Allen had established. She commended his ability to recognize changes in social and economic conditions as well as changes in law and court practices, and to adjust the court's operations in response to community and individual needs, as well as technology and the criminal justice system. Mr. Pap~ entered the meeting. Ms. Nathanson hoped to see increased dialogue with the judge about how the criminal justice system works in Lane County generally, as the court was an important piece of the system and one for which the council had direct responsibility. She agreed with Mr. Meisner that the council needed the judge's opinions in considering ordinance and operational changes and budget issues, particularly regarding how Lane County decisions and procedures impact Eugene. In response to Mr. Meisner's comments, Judge Allen said he was always available, and was not shy about sharing his thoughts. MINUTES--Eugene City Council June 26, 2002 Page 1 Work Session Marilyn Nelson responded to a question asked at the work session of June 10 by Ms. Nathanson regarding the court remodel project, saying that to increase hours of construction work and work on weekends would increase project costs prohibitively. The court proposed to use the Council Chamber to replace the courtroom for the two-month construction period, which would result in no delays and would incur no other costs. She noted that the jury pool also was convened in the courthouse, and staff made arrangements with Lane County staff to use Harris Hall for that purpose. Also in response to a question submitted earlier by Ms. Nathanson, Ms. Nelson discussed the City's use of the Lane County Road Crew. She said that the scheduling of the crew was a staff concern, and in the past staff had explored ways to expand the existing crew. The City had worked with Lane County and the Public Works Department to develop a work crew of its own four years ago. The effort had been successful, but only ten persons per day could be accommodated two days a week at a cost of $60,000 annually. Expansion of the work crew would be cost- efficient, because it was much cheaper to have people work on a work crew than to hold them in jail. Continuing, Ms. Nelson said that staffing for the crews was an issue for the City on weekends. She suggested there was a potential the City could work with other Lane County cities and special service districts to put another crew together. Ms. Nathanson thought that sounded great, noting the Public Safety Coordinating Council (PSCC) continued to look for opportunities for jurisdictions to pool resources. Ms. Nathanson asked if the council could influence the scheduling of the County's Road Crew. Judge Allen explained that the Road Crew was a jail of sorts. There were 17 jail beds for those who most needed them, and those beds were always used. He termed jail the most important sanction the City had. If the City was to assign a person to the Road Crew and that service did not occur for six weeks, the sanction did not have the same impact that more immediate service did. It was common that the person did not show up for service and was then recycled through the court system. Judge Allen believed that the delay in scheduling was an advertisement to the community that the system was broken. He said the court system continued to be backed up. He emphasized that more road crews were needed, adding that Springfield shared Eugene's need. Mr. Farr said that when he saw the road crews at work he believed it was a sign the system was working. He said that the judge's appointment was a very important council responsibility. He was very proud of the staff the judge assembled and the job Judge Allen did. Judge Allen said that the review was nice, but thanks to the City he had the ability to do what he did. Most judges did not have the ability to be creative and presiding judges often did not have authority over other judges in terms of cases assigned. He said that Eugene's court system functioned, as it allowed him to do the right thing. He praised the City staff for the work it did. Mr. Kelly also expressed appreciation to Judge Allen for the work he did and for accommodating the community's needs. He agreed with Mr. Meisner about getting Judge Allen's point of view on criminal code changes, and suggested that the judge's review be institutionalized in some way. Mr. Kelly noted his interest in community relations and improving attitudes and outcomes on all sides, and part of that was the University of Oregon student-Municipal Court relationship. He asked the judge to share his thoughts. Judge Allen said that he had spoken to the student leadership about some changes of concern to them. He thought the Busted Program had been MINUTES--Eugene City Council June 26, 2002 Page 2 Work Session very beneficial to the relationship between Eugene and the University. Students took advantage of the program, and the feedback he received from students about the program was universally positive. He believed the City needed to have a similar program for possession of less than an ounce of marijuana. The State's diversion program was costly and required six to twelve weeks of meeting and counseling. The fines involved were not sufficient to push people into the program. He said that students need such programs because it affected their ability to get students loans and enroll in school. In regard to a marijuana diversion program, Mr. Farr said "let's do it." Mr. Pap~ said he would like to put more funds into the City's work crew. He thought the approach benefitted all involved, including the community, which benefitted from the work done by the crews. He particularly commended trail clearing done by the crews, which enhanced the appearance and safety of City paths. He believed that such work also contributed to the self- esteem of participants. Mr. Pap~ suggested the City look into employing forfeiture funds to underwrite the cost of a marijuana diversion program. He thought it better to "nip problems in the bud" before such problems got bigger. Judge Allen said that the barrier that existed would not be easy to break through, but he would recommend an approach similar to the Busted Program. Mr. Carlson indicated he would follow-up, pointing out that the council had passed an ordinance restricting the use of those funds to drug treatment. Mr. Pap~ suggested the council could revisit the ordinance to accommodate the new program. Ms. Bettman favored the reappointment of the judge. She expressed appreciation to Judge Allen for pointing out that the court was unique to Eugene and in a good way. She also supported expanding the Road Crew, but questioned how the council could pay for an expansion of the crew in the absence of a new revenue source, a concept which the council rejected the previous Monday. She expressed appreciation to the judge for his collaboration with the community and his creative approaches, as evidenced by the Busted Program. She hoped the City Council could find resources to do the right things. Mr. Rayor expressed appreciation to Judge Allen. He also supported having Judge Allen review criminal ordinances. He perceived large variations in the penalties suggested to the council by staff and the discretion the judge had in applying those penalties. He noted recent changes the council made to City ordinances in response to changes to State law in City ordinances and said he often did not understand the variation in penalties. He was concerned about over-reliance on the discretion of the judge given that judges change, and asked for comment from Judge Allen. In response to Mr. Rayor's comments, Judge Allen said that the State frequently made changes to the law and often he did not know the rationale behind the penalties proposed. In terms of other ordinances, he pointed out that different councils were involved in the various actions, so there was no overall review of the consistency between ordinance penalties. He suggested that they would change from council to council. While he agreed about over-reliance on a judge's discretion, he suggested it was important to ensure that judges were acting consistently with community values. Judge Allen said that the court needed to be able to exercise judgment, and there must be some inconsistency because there was no appropriate "cookie cutter" solution. MINUTES--Eugene City Council June 26, 2002 Page 3 Work Session Mr. Meisner asked Judge Allen if there were needs he perceived to be filled, or trends in crime and activity that the council should be aware of. Judge Allen said the court did more outreach to the community than it had previously. He cited a meeting he had with representatives of the Muslim community. He realized, through that outreach, there was a segment of the community not comfortable with the court system; he proposed to address that through a group meeting, and train a court liaison to meet with people in court and assist them through the court process. He did not perceive any particular criminal trends facing Eugene. He said that the court was more focused on education at this time than on penalties, and referred people to various programs to ensure that education occurred. Mr. Meisner said he hoped that in the future Judge Allen would let the council know if he or the other judges perceived a problem with implementing the current code. Ms. Taylor also indicated support for Judge Allen's reappointment. She asked if anyone ever won when challenging a police officer. Judge Allen said yes, every day of the week. He expressed concern about the question, which presumed that the police never lost. Ms. Taylor asked if anyone ever helped people who were facing a police officer in court. Judge Allen said yes. He encouraged people to watch trials before they had their own trial, and explained the procedures to each person who entered the court. He did not want people to be intimated by the court process, which would occur anyway, and wished to soften that feeling. Ms. Taylor endorsed Judge Allen's suggestion for a marijuana diversion program. She hoped the fines would not be large. Judge Allen responded by saying that the court did not impose enormous fines. Mr. Pap~ invited the judge's thoughts on the City's criminal ordinances. He suggested that Judge Allen meet with the Police Commission on the subject. Mr. Farr said the input the Council Committee on Intergovernmental Relations received from court staff and the judge helped it respond quickly to legislative action. Mayor Torrey said he had recently been asked by a private service provider why the City had so few DUll (Driving Under the Influence of Intoxicants) convictions, which reduced the number of people referred to her business. Judge Allen said that it was his perception that DUll convictions had remained constant. Enforcement was a continuing issue. If there were more officers on the street, there would be more such cases. He said that it was his perception drug and alcohol counselors were overwhelmed with clients. He did not know about the business involved. Mr. Kelly, seconded by Mr. Pap~, moved to appoint Judge Wayne Allen to another four-year term as presiding judge of Municipal Court, and direct staff to renew his contract. The motion passed unanimously, 8:0. Mayor Torrey congratulated and thanked Judge Allen. MINUTES--Eugene City Council June 26, 2002 Page 4 Work Session B.WORK SESSION: Discussion of Recommended Amendments to the Eugene City Charter City Manager pro tem Jim Carlson, City Attorney Jerome Lidz, and Mary Walston of the City Manager's Office were present for the item. Mr. Kelly, seconded by Ms. Bettman, moved to approve Section 23(2)(e) as recommended by the Citizen Charter Review Committee (CCRC) and place the recommended Section 23 on the November 2002 ballot. Mr. Kelly believed the only point of contention regarded whether a felony conviction should result in a councilor's removal from office. He said that the clause only came into effect upon a declaration of the council, so it took the council's conscious involvement to decide whether the conviction was relevant to the office. Ms. Bettman asked whether the voters would have the benefit of the existing charter language when the voted for the sake of comparison. Mr. Lidz said that the council would need to address that question eventually. He suggested that housekeeping measures could be bundled together in a single measure and the more significant changes offered to the voters individually. He believed it would make sense to place the text in legislative format to show what change was being proposed. Ms. Bettman hoped the council discussed the issue soon. Ms. Bettman determined from Mr. Lidz that a felony conviction did not preclude a person from running for the council. She said that given that, it seemed inconsistent to give the council the wholesale ability to remove the person from office. She supported the recommended text because of the rationale cited by Mr. Kelly. Ms. Taylor said that if people convicted of a felony can run for office, it should be up to the voters, not the council, to decide whether a councilor should be removed after a conviction in office. She was not comfortable with the choice that the council would have to make. Responding to a question from Mr. Meisner, Mr. Kelly indicated that the change in question was a minor or substantial change, not a housekeeping issue. City Attorney Jerome Lidz clarified that the text as recommended applied to any offense related to the office and any felony. The council would get to determine if the felony was sufficient to disqualify a candidate for service; he believed the felony could be a serious one completely unrelated to service on the council. That seemed to require a policy decision from the council. Ms. Walston added the entire section was rewritten based on text from the model charter; the committee had been able to reach agreement around the felony issue mentioned by Mr. Lidz. Ms. Bettman said other sections of the charter were relevant to the determination under discussion, so she was relying on the arguments forwarded by legal counsel and the CCRC, because it seemed like a thin difference to her if 2(e) were retained or not. She suggested the council focus on whether it should have the discretion to determine that a felony conviction unrelated to a councilor's office was sufficient reason for removal from office. Mr. Rayor asked what rights were lost when a person was convicted of a felony. Mr. Lidz was unsure as the law had changed. Mr. Rayor suggested that the council consider what rights people MINUTES--Eugene City Council June 26, 2002 Page 5 Work Session have at different points of their encounters with the legal system to help it determine the answer: for example, if a person could not vote in a general election, perhaps they should not be able to vote to put something on a ballot. Mr. Lidz said he would have to research the issue and get back to Mr. Rayor. His reservation was that the State legislature made statutory changes. The council was contemplating changes to a charter. Mr. Lidz suggested that what the State did might be instructive, but he believed the council would want to make its own decision. He added that there was nothing at the federal level related to voting rights. Mr. Kelly suggested to Mr. Rayor that the two qualifiers to consider were the fact of the council's discretion and the fact the provision applied only to a felony committed after an election. Ms. Nathanson asked if the council could refer a recall to the voters. Mr. Lidz said there was no provision for doing so. Ms. Nathanson asked if the council could initiate such an action on the citizens' behalf. Mr. Lidz said he would have to do further research to answer the question. Ms. Nathanson suggested that the decision to remove a councilor was best left up to the citizens. She said that determining whether a felony disqualified a councilor would become a judgment call for the remainder of the council, and she did not believe it would always be a "cut and dried" situation and not at least somewhat political. Ms. Nathanson said that after rereading the section in question, it appeared, in the absence of a comma, that the last phrase, pertaining to the office, applied to both objects. Mr. Lidz said that staff could include a comma if the council thought it would clarify the section. The comma was removed to remove redundancy. Kate Fieland of the City Recorder's Office noted that the City had no separate provisions for recall in the City Code. She described the State recall process, and said there was nothing in State law to preclude the council from initiating a recall petition. Mayor Torrey did not support the section unless the council was limited to referring the issue of removing the errant councilor to the voters of the relevant ward. He wanted to avoid "political hassles" around the removal of a councilor. Mayor Torrey called for another round of comments. Mr. Meisner asked Mr. Lidz if the section had due process implications; for example, would the council have to make findings in law if it used its discretion in removing a sitting councilor? If the decision was truly discretionary and seven councilors choose to deprive a councilor of his or her seat for a minor offense, could the councilor in question challenge that on the basis of due process? Mr. Lidz said yes. Responding to a question from Mr. Pap~, Mr. Lidz said he was not aware of any strict liability felonies. Mr. Lidz said that the council's use of the term "discretion" raised concern about the wording of the subjection and the committee's intent. He did not think the intent of the proposed section was to grant the council discretion not to remove someone from office in the case something occurred; rather, that the council needed to make a finding of fact such a thing occurred. He suggested that text clarifying the intent be added, such as "if the council finds that any of the following occurred," or something similar. MINUTES--Eugene City Council June 26, 2002 Page 6 Work Session Mr. Pap~ questioned whether the council wanted the provision to apply to felonies that occurred outside Oregon. Ms. Bettman pointed out that the discussion highlighted the hard work done by the committee, and how the issues, when examined closely, could lead to many directions. She thought the work accomplished by the committee in one year was extraordinary, and thanked the committee. She reiterated her long-held belief that the committee was well-balanced. Ms. Bettman noted the range of felony crimes in Oregon, which included some lesser crimes. She did not want to see a partisan council remove a councilor for recording a concert surreptitiously, for example. Ms. Bettman, seconded by Mr. Pap~, moved to amend Section 23(2)(e) to read "after election, conviction of an offense pertaining to the office." Ms. Nathanson supported the amendment as it would limit the council's authority to those things most immediately germane to the council. Mr. Rayor indicated opposition to the amendment, saying that a felony was fairly egregious, and he thought the recall process difficulty to rely on as it was a difficult process to mount. The amendment to the motion passed, 6:2; Mr. Rayor and Mr. Kelly voting no. The amended motion passed unanimously, 8:0. Mr. Kelly, seconded by Mr. Pap~, moved to refer Section 26, the section on liability for unauthorized expenditures, as proposed by the CCRC, to the November 2002 ballot. Mr. Kelly reported that the City Attorney proposed a complete rewrite of Section 26 to clean-up the language and reflect a change by the 2001 State legislature, which made the liability issue relevant only when done knowingly or with gross negligence. That text was included in the meeting materials. Ms. Bettman asked Mr. Lidz if the City had examples of City officials being subject to the existing provision. Mr. Lidz said no. Ms. Bettman said that given the existing provision was not a problem and the changes recommended by the City Attorney were not required by State statute, recommended by the CCRC, or demanded by the community, she would not support them. She supported the CCRC recommendation. Mr. Lidz said that the provision was before the council because of changes in State law, which had the support of the League of Oregon Cities (LOC). He had wanted to call to the council's attention an opportunity to make a parallel change in the charter. There was nothing that compelled the change. He had the same concern the LOC did, in that the provision was potentially a substantial personal liability for a councilor or mayor. As far as he knew, he reiterated, it never had been invoked. Ms. Bettman questioned whether the LOC had offered similar input on other provisions of the charter. Mr. Lidz said no, those were not matters the LOC offered input on. The focus of the LOC MINUTES--Eugene City Council June 26, 2002 Page 7 Work Session was on changes in State law, and concerns that someone would be assessed personal liability without having done anything wrong. Mr. Pap~ asked if there was a trial process associated with Section 26. Mr. Lidz was not aware of one. Mr. Pap~ asked what procedures were involved. Mr. Lidz did not know. He suggested Circuit Court would probably be the appropriate venue to resolve the issues involved, but acknowledged there was no set-out process in either charter or code. Responding to a question from Mr. Rayor regarding the definition of "City official," Mr. Lidz said that rather than defining the term, the CCRC referred to "elected and appointed officials" and "officers and employees." He said there was no doubt that the councilors are City officials. Speaking to Mr. PapS, Mr. Kelly pointed out that there were many things in the charter that had no associated procedures. For example, there was no process for how a finding of conflict of interest was made. Mr. Meisner wanted to ensure that the council had the opportunity to review the text that would be referred to the voters. Mr. Meisner said there had been no legal challenge, but there was a situation that might have triggered the provision when the staff learned the Olive Street parking lot was purchased with County library levy dollars rather than General Fund dollars. Until he raised the issue of the funding source, those proceeds were not intended for use on the library, which could have a violation. Ms. Nathanson said that Mr. Meisner's remarks illustrated the need to be careful with the wording of the provisions. She observed that the CCRC never had the opportunity to discuss the City Attorney's concerns, and determined from Mr. Lidz that the recommendation before the council was the work of several municipal attorneys. Ms. Nathanson said that unless it could be determined the LOC's recommendation was undermining the CCRC's intent, she preferred to adopt the City Attorney's text. Mr. Fart agreed with Ms. Nathanson. Mr. Carlson cited as a possible example of where the current provision might be relevant that of the County's approval of Road Fund money to assist the City in the construction of parking at the Airport. The board believed that the action it took at that time was legal. Subsequently, the board was taken to court by former Commissioner Bill Rogers and its action pronounced illegal. He believed the charter language, if applicable to the board, could have allowed a citizen to take a commissioner to court for personal liability. The OLC had attempted to address situations where a body believed it was acting legally by the changes in State law. Mr. Pap~ said that provision addressed employees as well, and he expressed concern where an employee could be financially damaged for innocent behavior. Ms. Bettman reiterated her previous argument that the provision had been in place for three decades and there had been no problem. She suggested that if the voters perceived the new text as a weakening of the existing charter, it could be defeated. That would mean the existing provision would remain in place without the important mechanism that allowed citizens to hold City officials accountable. The existing charter language means that public officials would have to MINUTES--Eugene City Council June 26, 2002 Page 8 Work Session think twice about how they spent money because they would have to consider the legality of the expenditure in question. Ms. Bettman said if the council preferred the legal counsel's language, perhaps the citizens could be offered both versions. Mr. Kelly withdrew his motion with the permission of Mr. Pap~, his second. Mr. Kelly, seconded by Mr. Pap~, to refer the text recommended by the City Attorney with the addition of "and employees" every place Section 26 refers to "City officials" to the November 2002 ballot. Mr. Kelly said that the provision would now apply to all officials and employees. Mr. Rayor determined from Mr. Lidz that the City Manager was an employee. Mr. Lidz thought the manager was also a City official, but he had not been thinking of that when he considered the State statute. He determined from Mr. Kelly that the intent of his motion was to include everybody. Ms. Bettman said the motion did not address her concerns about the potential that the measure would be perceived as weakening the charter and would be defeated. She asked if her suggestion to offer both versions to the citizens could be legally implemented. Mr. Lidz said yes. The motion passed 6:2; Ms. Bettman and Mr. Rayor voting no. Mayor Torrey adjourned the meeting at 1:30 p.m. Respectfully submitted, James R. Carlson City Manager pro rem (Recorded by Kimberly Young) MINUTES--Eugene City Council June 26, 2002 Page 9 Work Session