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HomeMy WebLinkAboutCC Minutes - 12/13/06 Work Session M I N U T E S Eugene City Council Work Session McNutt Room—Eugene City Hall December 13, 2006 Noon COUNCILORS PRESENT: Jennifer Solomon, Andrea Ortiz, David Kelly, Betty Taylor, Gary Papé, Bonny Bettman, Chris Pryor, George Poling. Her Honor Mayor Kitty Piercy called the meeting of the Eugene City Council to order. A. CELEBRATION OF SERVICE: Recognition of Outgoing City Councilors David Kelly and Gary Papé Mayor Piercy said this was a chance to express the council’s appreciation for councilors David Kelly and Gary Papé’s service to the City. She thanked Mr. Kelly for the help he provided to her on the Metropolitan Policy Committee (MPC) and for his “thoughtful conversations and thoughtful disagreements.” She said she particularly enjoyed traveling to sister cities in Japan and South Korea with Mr. Papé. She thanked both councilors for their service. Mr. Poling commended Mr. Kelly for always doing his homework. He thanked Mr. Papé for his help during Mr. Poling’s early service as councilor. Ms. Ortiz thanked both councilors for making her feel welcome. She said they were both good examples to follow as they worked hard. Ms. Solomon echoed the sentiments of Mr. Poling and Ms. Ortiz. She appreciated Mr. Papé’s legal expertise. To Mr. Kelly, she expressed appreciation that even when they had disagreed, he had been the model of civility. Mr. Pryor commented that it would be easy to view the City Council as a dysfunctional group, but it was part of the job to have conflicts and disagreements. He underscored that the councilors worked to keep the conflicts to the issues and not to the people. He said this had made the council strong. He shared his enormous respect for anyone who could do this job “like a leader.” Ms. Bettman thanked both councilors for their service. Ms. Taylor said she liked and respected both councilors. City Manager Taylor thanked the councilors for their service and for helping him grow personally and professionally. MINUTES—Eugene City Council December 13, 2006 Page 1 Work Session Mr. Kelly commended Mr. Papé for bringing an “independent voice” to the table. He thanked the Mayor and his colleagues, City staff, and the people of the city of Eugene who “care enough to get involved.” He also thanked the voters, adding that it had been a pleasure and a privilege to serve. Mr. Papé thanked the citizens of Eugene “who let us know how they feel.” He extended his gratitude to his colleagues and the Mayor. He added that he would miss Mr. Kelly. Mayor Piercy invited everyone to enjoy a piece of cake in their honor. B. ACTION: An Ordinance Concerning the Police Auditor and Civilian Review Board; Amending Section 2.013 of the Eugene Code, 1971; Adding Sections 2.240, 2.242, 2.244, 2.246, 2.450, 2.452, 2.454, and 2.456 to that Code; and Providing an Effective Date for Implementation (CB #4936) Police Auditor Cris Beamud highlighted the public hearing that had been held on December 11. She noted that Mr. Poling had submitted an amendment he wished to place on the table in addition to Mr. Kelly’s amendments. City Manager Taylor noted that City Attorney Sharon Rudnick was available to respond to questions. He hoped the council could take action on the ordinance during this meeting so that Ms. Beamud could begin her work. Ms. Solomon, seconded by Ms. Ortiz, moved that the City Council adopt Council Bill 4936, an ordinance concerning the Police Auditor and Civilian Review Board. Mr. Kelly, seconded by Ms. Ortiz, moved to amend Council Bill #4936 to make the follow- ing changes: 1) Add a new definition to 2.452: Conclusion of any criminal investigation or conclusion of any such criminal investigation. A criminal investigation is deemed concluded when the appropriate criminal prosecutor decides either to press charges or to not press charges. 2) Amend section 2.240(1) to delete the words “oversee and.” 3) Amend section 2.244(7) to delete the words “oversee and.” 4) Amend section 2.240 to include a new section: (4) The Civilian Review Board shall serve as an advisory body to the City Council. 5) Amend section 2.456(2) as follows: The police auditor may require, and is authorized to contract for, an external investigation when the police auditor determines that an eternal investigation is appropriate. Necessary to reduce real or perceived bias or that the investigation requires specialized skills internal investigators do not have. 6) Amend section 2.456(3)(a) as follows: The police auditor shall have complete an un- restricted access to all complaint and investigative records and materials, and any other information necessary for the performance of his/her specified duties. As pro- vided in section 2.456(2)(d), the police auditor shall not have access to a criminal in- vestigation file until the conclusion of any such criminal investigation the investiga- tion or criminal proceedings have concluded MINUTES—Eugene City Council December 13, 2006 Page 2 Work Session 7) Amend 2.246 to fix a numbering error: the second (9) should be numbered (10) and the section numbered (10) should be numbered (11). Mr. Papé asked what the significance was of the deletion of ‘criminal proceedings from section 2.456(3). Mr. Kelly responded that he felt that there was language elsewhere in the ordinance that addressed this and that a criminal proceeding could conceivably span a decade. Ms. Rudnick noted that this was consistent with how things worked at present. The motion to amend passed unanimously, 8:0. Mr. Kelly, seconded by Ms. Bettman, moved to amend Council Bill #4936 to make the fol- lowing changes: 1) Amend 2.454(4) so that it reads as follows: To the extent permitted by Oregon Public Records Law, the auditor’s office and any investigators or consultants it may employ shall maintain the confidentiality of records and information in accordance only with applicable federal, state, and local law and other applicable city policies and collec- tive bargaining agreements. 2) Amend 2.246(9) so that it reads as follows: To the extent permitted by the Oregon Public Records Law, members of the Civilian Review Board shall maintain the confi- dentiality of records and information in accordance only with applicable federal, state, and local law and other applicable city policies and collective bargaining agreements. Mr. Kelly did not believe striking ‘applicable city policies’ would be controversial. He believed ‘city policies’ was overly broad. He said the “heart of the matter” was the collective bargaining agreement. Ms. Rudnick explained that the legal implications of the amendment were that the council could not legally exempt the auditor or the Civilian Review Board (CRB) from the application of the collective bargaining agreement because it was illegal. She underscored that every section of the City was subject to the collective bargaining laws and those laws would make it an Unfair Labor Practice (ULP), meaning it would be illegal to refuse to bargain in good faith or to fail to comply with a written collective bargaining agreement. She believed that the amendment, as it stood, would draw a ULP. With regard to the policies, Ms. Rudnick believed the applicable city policies referenced in the ordinance were those related to confidentiality as it pertained to personnel records. She did not think the council could exempt the auditor or the CRB from those policies because the policies were adopted administratively by the City Manager. She understood that Mr. Kelly was trying to provide surety that as policies were developed and contracts were being negotiated, that they would account for and meet the needs of the auditor and the CRB to have access to information in order to do the job the ordinance sets out that they should do, which was to review cases and police investigation in as transparent and open forum as could be legally provided. She said if including the language there was at issue for other reasons, the council should delete it. Ms. Rudnick did not see a way for the council to direct the outcome of collective bargaining agreements in an ordinance. However, she provided a suggested motion that would direct the City Manager and his designee on a policy basis to, when adopting personnel policies related to confidentiality or release of records or when negotiating collective bargaining agreements, either take into account or to meet the needs of the auditor and the CRB to have access to appropriate personnel information. She noted that using the MINUTES—Eugene City Council December 13, 2006 Page 3 Work Session phrase ‘take into account’ would give a little more discretion and left a little more room in negotiations but ‘meet’ would also be appropriate. She felt this would provide a way for the council to give direction to its employees, the auditor and the City Manager, on how the council wanted them to affect its policies in those arenas. Ms. Rudnick related that she had discussed this with Ms. Beamud. She felt Ms. Beamud was very clear on what changes were needed in the collective bargaining agreement in order to accomplish the intent of the ordinance, and so was the Eugene Police Employees Association (EPEA). She noted that the EPEA was concerned about the confidentiality issue because it related to personnel matters. Nonetheless, she was confident that an agreement would be reached on an amendment to the contract that would accomplish the changes that were needed. She said the intent at this point was that the auditor would work with the EPEA to resolve the sticking points in the contract. She believed that all sides were on the same page. Additionally, Ms. Rudnick submitted copies of the policies that applied to confidentiality and the release of information and the bargaining agreement for the councilors’ perusal. She highlighted the confidentiality clauses. She explained that none of the policies limited what the auditor could choose to review, but given that the CRB was not a supervisor or manager, a piece of information bound by confidentiality clauses could not be disclosed to them. Mr. Kelly indicated that if he could not legally amend the section in the way his motion intended, then he would move to delete the sections. Ms. Beamud agreed that deletion of the clauses was a good idea. She stressed that she understood she would have to follow the law and also that the collective bargaining agreement had the force of law. Mr. Poling thanked Ms. Rudnick for her clear explanation. He was willing to support deletion of the two sections from the ordinance. He expressed his confidence in the ability of Ms. Beamud to come up with something workable. Ms. Bettman asked if provisions could be added to a future contract that would reduce the Police Auditor’s access. Ms. Rudnick replied that in theory it could, but the City Manager would be violating the direction of the City Council if he or she allowed it. Ms. Bettman remarked that it was “just a motion.” She predicted that without Mr. Kelly to remind the council that the motion had been passed in five or six years, it could change. She said that basically, information was all the Police Auditor had, and access to the information was “really the only authority and power of the office.” She ascertained from Ms. Rudnick that at present information could be brought to the CRB if personal information was redacted. Ms. Rudnick stated that in the circumstances of ongoing investigations of community impact cases, the CRB could meet in executive session. Ms. Bettman supported the suggestion to delete the sections from the ordinance. She preferred the word ‘meets’ to the phrase ‘take into account.’ Additionally, she did not believe the qualifying word “appropri- ate” was necessary to the purpose of the language. Mr. Papé thanked Ms. Rudnick for providing the legal input. He was amenable to deleting the sections Mr. Kelly had moved to amend. MINUTES—Eugene City Council December 13, 2006 Page 4 Work Session Mr. Kelly withdrew his amendment. Ms. Bettman withdrew her second. Mr. Kelly, seconded by Mr. Poling, moved to amend Council Bill #4936 by deleting sec- tions 2.454(4) and 2.246(9) and renumbering other sections according. The motion passed unanimously, 8:0. Mr. Poling, seconded by Ms. Solomon, moved to amend Council Bill #4936 to delete the word “exclusive” from Section 2.450(3). Mr. Poling explained that during the discussions prior to the vote in August, the word ‘exclusive’ had been a sticking point. He believed, given that the City Manager had delegated his authority to the Police Auditor to hire staff, that the Charter restricted the City Manager from giving exclusive authority. He said as long as the Police Auditor and the City Manager continued to cooperate as they had demonstrated thus far, he did not see a problem with letting the word ‘exclusive’ remain. However, he wished to prevent the City from setting itself up for legal contentions and other problems should that dynamic change with different management personnel. He added that he fully supported the ordinance. Ms. Bettman thought having the word ‘exclusive’ in the ordinance was the “crux” of the issue and asking to have it removed took the council back to the same debate it had before adoption of the resolution. She felt the issue had already been decided. She asked Ms. Beamud for her opinion on the removal of the word. Ms. Beamud responded that her authority was either exclusive or it was shared. She said removal of ‘exclusive’ would take her back to the position of sharing the authority. She recalled that she had said a number of times that it would not cause her to leave the position; however, it would no longer be exclusive. Ms. Bettman believed the word ‘exclusive’ was the firewall between an independent auditor and the inclusion of the City Manager. She underscored that support in the community was for independence in the Auditor’s Office. Mr. Pryor observed that it was a quandary that this had come down to one word. He reiterated his support for the Auditor’s Office and his belief in what it stood for and what it sought to accomplish. He acknowl- edged legal advice that indicated the current wording could conflict with the City charter. He was aware that there was another opinion by another attorney but he had never seen it and it had never been provided to him. He wanted to see the Auditor’s Office move forward in the best possible way and, in that light, he asked for some final advice from the City Attorney in regard to whether the wording would create a conflict. City Attorney Glenn Klein responded that legal counsel believed that the council did not have the authority to delegate what the ordinance purports to delegate to the auditor. He said if the council adopted the ordinance with the word ‘exclusive’ in it, it would still be lawful, that the mere adoption of the ordinance did not create any liability for the City, the councilors or the Police Auditor. He stressed that liability would only exist dependent upon what happened “down the road.” He stated that if the Police Auditor ever hired someone that fell outside the parameters of the City Manager’s administrative order, which was broad, at that point there could be personal liability. Mr. Pryor indicated that while he supported Mr. Poling’s position he would oppose the amendment based on the legal information. MINUTES—Eugene City Council December 13, 2006 Page 5 Work Session Mr. Kelly opposed the amendment. He believed the bottom line for the success of the Auditor’s Office was the public’s impression of it. He felt the striking the word ‘exclusive’ would give the perception that it was a less independent office. Mayor Piercy commented that the issue had not changed; it was the same issue and there were the same disagreements. She wanted to support the Auditor’s Office and the CRB. She indicated she would oppose the amendment if her vote was required to break a tie. She added that she was anxious for the council to work with Ms. Beamud and to inaugurate the Civilian Review Board “that everyone has been waiting for.” In response to a question from Mr. Papé, Mr. Klein stated that the memorandum related to personal liability was confidential and the memorandum related to the City Attorney’s interpretation of the Charter was not confidential. Mr. Papé asked if the words in the ordinance were legally differentiated from the administrative order with the word ‘exclusive’ in it. Mr. Klein replied that the administrative order assumed that the City Manager had the authority to adopt the administrative order and the authority would come from the Charter. He clarified that the ordinance assumed that the Charter gave exclusive authority to the council and, therefore, the council had the power to give exclusive authority to the Police Auditor. He felt in this sense there was a conflict, but he did not believe adoption of the ordinance would in any way invalidate the City Manager’s administrative order. He said either the Charter gave exclusive authority to the manager or the Charter gave exclusive power to the council. He believed the administrative order would either remain valid because the council did not have the power to invalidate it or the administrative order was not valid to begin with. Mr. Papé opposed “the compromise” and indicated he would vote accordingly. Ms. Taylor opposed the amendment. She believed the word ‘exclusive’ was essential. Mr. Poling was not opposed to the ordinance. He merely wanted to clarify what authority it gave and to whom. Mr. Poling withdrew his motion to amend. Ms. Solomon withdrew her second. The main motion, as amended, passed unanimously; 8:0. Ms. Bettman wanted to bring up an issue. She said the council had scheduled a work session early in 2007 regarding the role of the City Attorney. She wished to remark on the “fact” that the City Attorney wrote a memorandum for the council “based on the opinion of the City Manager” after the City Council had adopted a resolution that clarified the charter language so that interpretation of any ambiguity was solely the purview of the council. She said the City Attorney had “adopted an opinion based on the opposite opinion.” She asserted that if the City Attorney was representing the City, including City policy, the underlying assumption of the memorandum should have been that the council had the authority to delegate the hiring and firing of staff to the Police Auditor. She saw that as a “major breach.” It reinforced her opinion that the City Attorney’s Office “represents the City Manager and not the City as a whole.” She intended to bring this up at the process session. Mr. Klein said the attorneys had a different view. He stated that as part of the materials for the scheduled work session, the City Attorney’s Office intended to provide comment about the issue Ms. Bettman raised. MINUTES—Eugene City Council December 13, 2006 Page 6 Work Session Mr. Kelly, seconded by Mr. Poling, moved to direct the City Manager as follows: When adopting personnel policies or negotiating collective bargaining agreements related to the release or confidentiality of personnel records, the City Manager will consult with the Police Auditor and, consistent with the law and the City’s duty to bargain in good faith, will adopt policies and negotiate collective bargaining agreements that meet the needs of the auditor and Civilian Review Board to have access to personnel information. The motion passed unanimously, 8:0. C. WORK SESSION: Improvements to Roosevelt Boulevard to Improve its Functionality as an East-West Arterial City Manager Taylor asked City Engineer Mark Schoening to provide a brief overview of the improvements to Roosevelt Boulevard. Mr. Schoening explained that the item was a follow-up from the October 9 work session at which transportation priorities for north and west Eugene had been discussed. He said Roosevelt Boulevard had been brought up not as a staff priority, but as part of a discussion on how it could function better as an east/west arterial. He outlined the two projects that had been brought up with this goal in mind: ? The addition of a second left turn lane at the intersection of Highway 99 and Roosevelt Boulevard, which would remediate the safety issue brought about when the queue for the turn spilled into one of the through lanes during peak driving hours. There was an opportunity to work with the Oregon Department of Transportation (ODOT) as ODOT had a safety and pavement preservation project for Highway 99 that was funded with construction anticipated in 2009. ? The extension of Roosevelt Boulevard through the Royal Node, connecting it through to the Bethel area at Avalon and Legacy Streets. He noted this project was contained in the Regional Transpor- tation Plan and TransPlan. Mr. Schoening stated that the latter project would require some restructuring of the Capital Improvement Program (CIP) in order to prioritize projects, including some for which a public process had already been initiated such as the Maple/Elmira street project. Ms. Ortiz preferred to keep the Maple/Elmira Street project on the list. She called the intersection “scary.” Mr. Kelly supported the proposed motion for the extra turn lane. The suggested delay in an extension of Roosevelt Boulevard caused him concern. He felt in the aftermath of the demise of the West Eugene Parkway (WEP) it was important to explore various ways to strengthen the east/west street system in that end of town. He wanted to explore how the first phase of it could be worked into the current CIP. Ms. Bettman supported adding the extra turn lane in order to provide more safety and operational efficiency. She echoed Mr. Kelly’s comments, noting that one objective in that area was to enhance connectivity. She said that the extension seemed like an important link to make. In response to a question from Ms. Bettman, Mr. Schoening affirmed that the extension would impact wetlands. Ms. Bettman asked if the City would need an impact statement. Mr. Schoening replied that it would not if City funds were used. He said a permit would still be required but the federal NEPA requirements would not apply. Ms. Bettman asked what the extent of the impact on wetlands would be. Mr. MINUTES—Eugene City Council December 13, 2006 Page 7 Work Session Schoening was unsure at this time. Ms. Bettman expressed surprise that the specific information was not yet available. She also questioned why the extension was being presented as a choice over the Maple/Elmira Street project given that the former would be paid for with systems development charges (SDCs) and other assessments and the latter came from “other pots of money.” She also wondered why the Maple/Elmira Street project was presented as the “only choice to bump,” given the entire CIP was “full of projects.” Mr. Schoening clarified that the Maple/Elmira Street project was an example of what would have to be conceded should the council choose the different project. He underscored that both projects would be funded by a combination of transportation SDCs and assessments to adjacent property owners. In response to a follow-up question from Ms. Bettman, Mr. Schoening stated that there was no way to build the Roosevelt Boulevard extension without impacting wetlands. Ms. Bettman asked that staff bring back a look of what the impact would be and a list of options for projects that could be deferred. Mr. Schoening said project development had been funded in advance in the CIP for the Maple/Elmira Street project. He explained that the development of an extension project could be funded in the same way and this would provide a sense of how much of the wetlands would be impacted, how much right-of-way would need to be acquired, and a better sense of what it would cost. Ms. Solomon averred that the dual left-turn lane onto Roosevelt Boulevard was “sorely needed.” She asked if it had been scheduled for 2009. Mr. Schoening replied that an ODOT project had been programmed and anticipated construction in 2009 for safety and maintenance of Highway 99 between Barger and Washington Streets. He said the dual left-turn lane was not yet part of that project, though the concept had been brought to ODOT and the department had not said “no.” Ms. Solomon asked what the construction timeline was for the Maple/Elmira project. Mr. Schoening responded that it was slated for construction in the summer of 2008. Mr. Poling asked where the Royal Avenue mixed-use center would be located in relationship to Attachment A. Mr. Schoening replied that it was on both sides of Royal Avenue between Greenhill Road and Terry Street. In response to a follow-up question, Mr. Schoening said the City had some “nibbles” on potential development in that area. Mr. Poling wondered if moving ahead with construction of the extension would mean it would have to be constructed with consideration for how it would be situated in relation to the planned node. He asked if it would have to undergo a different type of construction than the rest of it or whether it would be better to wait until the private developers build the center to put the restrictions or limitations on the road. Mr. Schoening responded that either approach would arrive at the same result. Ms. Solomon, seconded by Ms. Ortiz, moved to direct the City Manager to work with the Oregon Department of Transportation to secure additional funding for the Highway 99 – Barger Street to Washington/Jefferson Street project for the addition of a dual left turn lane from northbound Highway 99 to westbound Roosevelt Boulevard. Mr. Kelly, seconded by Ms. Bettman, moved to amend to add a new sentence to direct the City Manager to bring an amendment to the Capital Improvement Plan for project develop- ment for the extension of Roosevelt Boulevard to the City Council as it considered the Capi- MINUTES—Eugene City Council December 13, 2006 Page 8 Work Session tal Improvement Plan and to bring information regarding the impact the project would have on wetlands at that time. The motion to amend passed unanimously, 8:0. In response to a question from Mr. Papé, Mr. Schoening said ODOT had a budget of $6 million for the Highway 99 project that did not currently contain the dual left turn lane. He stated that ODOT would have to find additional funds to undertake that project. In response to a question from Ms. Bettman, Mr. Schoening said he surmised that the Highway 99 project consisted mostly of a pavement preservation project. The main motion, as amended, passed unanimously, 8:0. D. WORK SESSION Update on Commercial/Industrial/Residential Lands Studies This item was deferred due to a lack of time. The meeting adjourned at 1:27 p.m. Respectfully submitted, Dennis M. Taylor City Manager (Recorded by Ruth Atcherson) MINUTES—Eugene City Council December 13, 2006 Page 9 Work Session