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HomeMy WebLinkAboutCC Minutes - 10/27/08 Work SessionM I N U T E S Eugene City Council McNutt Room—City Hall—777 Pearl Street Eugene, Oregon October 27, 2008 5:30 p.m. COUNCILORS PRESENT: Chris Pryor, Betty Taylor, Bonny Bettman, Mike Clark, Alan Zelenka, Jennifer Solomon, George Poling. COUNCILORS ABSENT: Andrea Ortiz. Her Honor Mayor Kitty Piercy called the meeting of the Eugene City Council to order. A. Committee Reports and Items of Interest from Mayor, City Council, and City Manager Ms. Piercy congratulated the Eugene Airport for receiving a first place award from the International Facility Management Association. She said an arts and business alliance had been launched and noted that the council was receiving an electronic emergency services report. She noted that a record 21,723 calls had been received and 12,192 patients were transported to medical facilities. She announced that Pam Berrian had received the 2008 Telecommunications Award. Ms. Bettman announced that Alan Jacobs was presenting a free lecture on boulevard design on November 5 and recommended attending to hear about effective transportation and economic development strategies for development on streets. Mr. Zelenka said the Fairmount neighbors and University of Oregon came to an agreement on the proposed basketball arena and thanked everyone who participated in the process. Mr. Clark reported that the Human Rights Commission was developing its work plan for the upcoming year. He attended the opening of Springfield’s Justice Center and said it was a beautiful facility. He inquired about the status of his request for a report on Creekside Park. Ms. Taylor said she heard that two people had already been excluded from downtown under the exclusion zone ordinance and wondered why the City did not just assign extra police to the area instead of excluding people. She asked what the City would do for a person who had been excluded for 90 days if they were ultimately found not guilty. City Attorney Jerome Lidz explained that although it was not a criminal process, it was similar to someone being arrested and then released if found not guilty or the charges were dismissed. Ms. Taylor asked if anyone was tracking where people went when they were excluded. City Manager Jon Ruiz said the police department was monitoring where people dispersed to downtown and in surrounding areas. MINUTES—Eugene City Council October 27, 2008 Page 1 Work Session Mr. Poling reminded everyone to vote on November 4. He attended, along with Ms. Piercy, the ribbon- cutting ceremony for the Interstate 5 flyover. He was also awaiting a response to an inquiry on Creekside Park. Mr. Pryor echoed Mr. Poling’s reminder to vote. He also attended the ceremony opening the new flyover and had recently returned from a visit to Eugene’s sister city of Kakegawa, Japan. He was very impressed by the bullet train as an efficient form of transportation. Ms. Piercy noted that when someone engaged in behavior defined in the ordinance they received a notice that they might be excluded from the downtown area, but that exclusion did not occur until that decision was made by a judge. Mr. Ruiz concurred that the basketball arena process was a good model of bringing concerned parties to the table to mitigate neighborhood concerns. He said the arts and business alliance was a positive coalition in the community. He took responsibility for decisions regarding the City’s Spay and Neuter Clinic and asked people to direct their concerns to him, not the finance director. He said Assistant City Manager, Sarah Medary, would be initiating a community discussion about an affordable and accessible spay and neuter program. B. WORK SESSION: Whistleblower Protections Mary Walston, City Manager’s Office, referred to a summary of existing State and federal whistleblower protection laws prepared by the City Attorney. She said a municipal ordinance from Seattle, Washington, was also referenced. She noted in 2002 the charter review committee had considered the issue and there was some discussion of holding a work session, but the council voted not to go forward with it. She said the agenda item summary included a list of questions that would need to be answered should the council wish to move forward with an ordinance. She asked City Attorney Jerome Lidz to address the legal framework of whistleblower protections. Mr. Lidz cited current State law that made it an unlawful employment practice for a public employer to retaliate against anyone who reported certain actions or discourage employees from reporting those activities. He said enforcement was by the Bureau of Labor and Industries (BOLI). He asked what problem the council wanted to address and what it wanted the City to do that was different than State law. He cautioned that the City’s process could not be interposed between the whistleblower and BOLI by requiring the person to go through the City first, although it could make an avenue available to register those concerns with the City voluntarily. He said the 2002 discussion could be translated into an ordinance, but again cautioned that the process would need to be voluntary. Ms. Bettman said whistleblower protection would foster integrity in the organization. She asked what steps an employee would take to report a violation to BOLI and how many complaints had been lodged in the last five years. Mr. Lidz said he did not know the number of complaints that had been lodged. If an employee wished to complain, they would obtain a form from BOLI to complete and submit. Ms. Bettman asked if the City had any documentation of complaints or retaliation. Ms. Walston said she was not aware of a central record; complaints were typically referred to Human Resources or department heads and she did not have access to that data. City Manager Jon Ruiz indicated that in his experience employees pursued complaints in different ways; complaints were reported through the chain of command, MINUTES—Eugene City Council October 27, 2008 Page 2 Work Session or if that was not feasible, higher in the chain of command or directly to the personnel office. He said at whatever point a complaint was filed there was an obligation to investigate it. Ms. Bettman asked if there was any record of complaints of retaliation being filed with BOLI. Mr. Ruiz said there would be a record of any complaints filed with the City, but he was not certain what obligation BOLI had to report to the City and complaints filed directly with it. Mr. Poling was also interested in the number of instances of employee whistleblowing and any instances of retaliation. He asked how a local ordinance would be administered. Ms. Walston said that would be an issue for the council to discuss if it wished to pursue an ordinance. Mr. Poling asked if there was any information on the cost to Seattle to administer their program and whether a local program would be able to remedy a complaint any more quickly or efficiently than the State or federal process. Mr. Ruiz felt that it would be more efficient for the City to investigate and act on a complaint, with or without an ordinance, than for an employee to go through the State or federal process. Mr. Poling asked if there was anything preventing a City employee currently from bypassing his or her supervisor and taking a complaint to the department head or City Manager. Mr. Ruiz said that option was open to employees and he had a responsibility to investigate complaints. Mr. Poling felt that the current whistleblower provisions were adequate and employees could circumvent supervisors if necessary. He did not want another layer of government to clutter up the system when what was already in place was working. Mr. Zelenka said the City’s policy and procedures manual for employees should, at a minimum, reiterate State law and describe the procedure an employee should follow if he or she felt one of the violations had occurred. He did not think most employees would have any idea what to do with that information. Mr. Ruiz agreed that if the subject was not covered in the manual it should be, whether or not there was an ordinance. He said that retaliation should also be addressed. Mr. Lidz noted that there were two different issues: one was related to employees feeling comfortable raising an issue of mismanagement or abuse of authority and how to do that; the other was how to deal with retaliation as a result of raising an issue. Mr. Clark agreed with Mr. Poling that unless there was a compelling shortcoming in the State statute that was not being addressed, there was no need for a municipal ordinance. He concurred with educating employees to ensure they understood the process for filing a complaint, but was not certain about whether the City needed to further address retaliation. Mr. Pryor said his concern was whether there were any gaps in the current system that the City needed to fill with local provisions. He said identifying gaps could be part of the charge to staff if the council decided to move forward on the issue. Ms. Taylor supported the concept of a local ordinance and pointed to the renters’ rights program as an example of how local ordinances provided people better access to a complaint process. She said that retaliation was often difficult to prove. She asked to see a copy of the 2002 discussion on whistleblowing. MINUTES—Eugene City Council October 27, 2008 Page 3 Work Session Ms. Piercy commented that it might be a matter of formalizing the existing process. She said it would be helpful to obtain information about complaints that had been filed in order to fairly assess the current situation and determine what course of action to take. Ms. Bettman said her research had indicated that many communities had whistleblower ordinances and protections and those programs were useful resources for developing a local ordinance. She described various approaches used in other communities. Mr. Zelenka asked for five items from staff to inform the council’s discussion and decision: ? A description of the State process, how onerous it was and how it actually worked ? Proposed language for the policies and procedures manual describing State and federal laws and the process for filing complaints ? Statistics on complaints filed with the State from Eugene City employees over the past decade or two ? The language proposed by the charter review committee and a summary of the committee’s discus- sion rationale ? Information on ordinances from other communities Mr. Poling agreed with the need for clear language describing existing protections and the process for filing complaints. He did not want to downplay the importance of whistleblower provisions, but felt the State and federal protections currently in place were sufficient, otherwise the council would be hearing from employees and unions about problems with the complaint process or retaliation. Ms. Solomon arrived at 6:20 p.m. Ms. Bettman cited a 2007 report by the Ethics Resource Center that concluded government employees were working in environments that were conducive to misconduct and intervention programs to improve ethical behavior were uncommon. She said local governments had the highest levels of observed misconduct and experienced the lowest level of reporting. She asserted that there was a perceivable culture of not feeling safe in the City organization according to some people and that meant efficiencies went unreported. She thought the State probably had a very high threshold for what counted as malfeasance. She did not think statistics or the lack thereof was an accurate indicator of whether or not there was a problem. Ms. Walston maintained the City had a strong ethics ordinance and the union had an active grievance policy and those could be emphasized in the employee handbook. Ms. Piercy said the information requested by Mr. Zelenka would be very helpful to the council. Mr. Ruiz said the agenda item summary represented neither support nor lack of support for an issue; he said staff was not always certain what information the council desired or what outcome was intended for a work session and the new form would help avoid that in the future and assure that staff did not spend time on research that was not of interest. He said there was value in having a formal policy related to whistleblower complaints. As City Manager, he would see that one was established if it did not already exist and share that information with the council. He remarked that there were differences between illegal activities and inefficiencies and if an inefficiency was reported it would be investigated because what was perceived as inefficient by one person might be perceived as a legitimate way to do business by another and it was MINUTES—Eugene City Council October 27, 2008 Page 4 Work Session important to close the loop. He asked for clear guidance from this council on its expectations of what staff would bring back for consideration as there did not appear to be consensus on the issue of an ordinance. Ms. Piercy felt that before councilors could determine if ordinance language was required they needed additional information, particularly about ordinances in other communities and what the City’s current process was. Mr. Pryor agreed with the Mr. Zelenka’s request for information. He thought it was important to assure that people were educated about the current mechanism. Ms. Bettman said she wanted staff to list the different components of all the ordinances, compare them to State and federal laws and process and identify gaps in coverage. She was not certain how the union grievance procedure related to the complaint process and wanted assurance it protected employees from retaliation. She reiterated that employees did not feel safe speaking out. Ms. Piercy remarked that it would be necessary to obtain the agreement of the council for that type of research. Mr. Clark was concerned with the discussion of potential retaliation and wanted to know how the State and federal processes addressed that issue in order to determine what remedies the City might wish to put in place. Mr. Zelenka, seconded by Ms. Bettman, moved to direct staff to return to the coun- cil with the following information: ? A description of State and federal laws and processes, including the step-by- step process for filing a claim ? Suggested language for the policies and procedures manual that described how the process worked ? Statistics at the State and local level for the last decade or two regarding com- plaints from the City ? Language from the charter review committee ? Ordinances from other communities around the country and a summary of how they differed from the City’s process Ms. Bettman offered a friendly amendment to include information about specific protections for employees and whether they were enforceable. Mr. Zelenka ac- cepted the amendment. The motion as amended passed, 7:0. Ms. Piercy announced that the council would take action on two items from the regular meeting agenda. C. CONSENT CALENDAR A. Approval of City Council Minutes of the July 14, 2008, Work Session; July 16, 2008, Work Session; September 15, 2008, Joint Elected Officials Meeting; September 17, 2008, Work Session; September 22, 2008, Work Session; September 24, 2008, Work Session; October 7, 2008, Boards, Commissions, and Committees Interviews; October 14, 2008, Boards, Commissions, and Committees Interviews B. Approval of Tentative Working Agenda MINUTES—Eugene City Council October 27, 2008 Page 5 Work Session Mr. Pryor, seconded by Ms. Bettman, moved to approve the Consent Calendar. Ms. Bettman and Ms. Taylor noted they had submitted minutes corrections. The motion passed: 7:0. Mr. Pryor, seconded by Ms. Bettman, moved to take action on appointments to board and commissions at the work session. Ms. Taylor objected to taking action at the work session as people were expecting the council to act at the previously announced time and requested a legal opinion. Mr. Lidz said the council’s practice had been that if an item was on the agenda it could decide to take action on it. Mr. Clark agreed with Ms. Taylor. He said there was a possibility that someone might come to the 7:30 p.m. meeting to watch the process or speak at the public forum on the issue and the council should adhere to its published agenda. Mr. Pryor said in most instances he would not want to deviate from the agenda, but he perceived appoint- ments to boards and commissions as more of an internal process and did not object to moving ahead. The motion passed, 5:2; Ms. Taylor and Mr. Clark voting no. D. ACTION: Appointments to Board, Commissions, and Committees Budget Committee Mr. Pryor, seconded by Ms. Bettman, moved to appoint Mary Ann Holser to Posi- tion 1 on the Budget Committee for a two-year term beginning November 1, 2008, and ending October 31, 2010. Mr. Clark moved to substitute Doug Smith for Position 1. There was no second. The motion to appoint Mary Ann Holser passed, 6:1; Mr. Clark voting no. Mr. Pryor, seconded by Ms. Bettman, moved to appoint Joseph Potwora to Position 3 on the Budget Committee, the unexpired term of Robert Peters, for a term begin- ning November 1, 2008, and ending October 31, 2009. Ms. Bettman, seconded by Mr. Clark, moved to substitute Doug Smith for Position 3. The motion passed, 6:1; Ms. Solomon voting no. Mr. Pryor, seconded by Ms. Bettman, moved to appoint Jon Barofsky to Position 4 on the Budget Committee for a three-year term beginning November 1, 2008, and ending October 31, 2011. The motion passed, 7:0. MINUTES—Eugene City Council October 27, 2008 Page 6 Work Session Mr. Pryor, seconded by Ms. Bettman, moved to appoint Joseph Potwora to Position 5 on the Budget Committee, the unexpired term of John Demboski, for a term be- ginning November 1, 2008, and ending October 31, 2009. Ms. Bettman, seconded by Ms. Taylor, moved to substitute Deanna Kilger for Po- sition 5. The motion failed, 5:2; Ms. Bettman and Ms. Taylor voting yes. Mr. Zelenka, seconded by Ms. Bettman, moved to substitute Sandra Ludeman for Position 5. Mr. Clark commented that the assignment of individuals to particular terms seemed arbitrary and he preferred to appoint Mr. Potwora to Position 6. He asked if the chair intended to move to appoint Mr. Potwora to another position if he was not appointed to Position 5. Mr. Pryor said the appointments were based on the number of votes and the particular term was subject to debate. He was taking names in ranked order. The motion to substitute Sandra Ludeman failed, 4:3; Ms. Taylor, Ms. Bettman and Mr. Zelenka voting yes. The motion to appoint Joseph Potwora passed, 5:2; Ms. Bettman and Ms. Taylor voting no. Mr. Pryor, seconded by Ms. Bettman, moved to appoint Noah Kamrat to Position 6 on the Budget Committee for a three-year term beginning November 1, 2008, and ending October 31, 2011. Ms. Taylor moved to substitute Deanna Kilger for Position 6. There was no sec- ond. The motion to appoint Noah Kamrat passed, 5:2; Ms. Taylor and Mr. Clark voting no. Mr. Pryor, seconded by Ms. Bettman, moved to reappoint Claire Syrett to Position 8 on the Budget Committee for a three-year term beginning November 1, 2008, and ending October 31, 2011. The motion passed, 5:2; Mr. Poling and Mr. Clark vot- ing no. Human Rights Commission Mr. Pryor, seconded by Ms. Bettman, moved to appoint the slate of nominations as presented in the agenda to the Human Rights Commission, unless there was a spe- cific substitution. The motion passed, 7:0. Planning Commission MINUTES—Eugene City Council October 27, 2008 Page 7 Work Session Mr. Pryor, seconded by Ms. Bettman, moved to reappoint Randall Hledik to Posi- tion 2 on the Planning Commission for a four-year term beginning November 1, 2008, and ending October 31, 2012. Ms. Bettman, seconded by Mr. Zelenka, moved to substitute Mark Baker for Posi- tion 2. The motion failed, 4:3; Ms. Bettman, Ms. Taylor and Mr. Zelenka voting yes. The motion to appoint Randall Hledik passed, 5:2; Ms. Bettman and Ms. Taylor voting no. Mr. Pryor, seconded by Ms. Bettman, moved to appoint Jeffry Mills to Position 3 on the Planning Commission for a four-year term beginning November 1, 2008, and ending October 31, 2012. Mr. Zelenka, seconded by Ms. Bettman, moved to substitute Mark Baker for Posi- tion 3. The motion failed, 4:3; Ms. Bettman, Mr. Taylor and Mr. Zelenka voting yes. Ms. Taylor, seconded by Ms. Bettman, moved to substitute Sarah Whitney for Po- sition 3. The motion failed, 4:3; Mr. Zelenka, Ms. Taylor and Ms. Bettman voting yes. The motion to appoint Jeffrey Mills passed, 5:2; Ms. Bettman and Ms. Taylor vot- ing no. Toxics Board Mr. Pryor, seconded by Ms. Bettman, moved to appoint Diana Bollenbaugh to Po- sition 3, a business representative on the Toxics Board, for a three-year term begin- ning November 1, 2008, and ending October 31, 2011. The motion passed, 7:0. Mr. Pryor, seconded by Ms. Bettman, moved to appoint Elizabeth Weaver to Posi- tion 6, an advocacy representative on the Toxics Board, for a three-year term be- ginning November 1, 2008, and ending October 31, 2011. The motion passed, 7:0. Historic Review Board Mr. Pryor, seconded by Ms. Bettman, moved to appoint the slate of nominations as presented in the agenda to the Historic Review Board. The motion passed, 7:0. Lane Regional Air Protection Agency Mr. Pryor, seconded by Ms. Bettman, moved to reappoint David Monk to Position 4 on the Lane Regional Air Protection Agency Board of Directors for a three-year term beginning November 1, 2008, and expiring October 31, 2011. The motion passed, 5:2; Ms. Solomon and Mr. Clark voting no. MINUTES—Eugene City Council October 27, 2008 Page 8 Work Session Metropolitan Wastewater Management Commission Mr. Pryor, seconded by Ms. Bettman, moved to reappoint Hillary Loud to Position 4 on the Metropolitan Wastewater Management Commission for a three-year term beginning February 1, 2009, and ending January 31, 2012. The motion passed, 7:0. Whilamut Natural Area Citizen Planning Committee Mr. Pryor, seconded by Ms. Bettman, moved to appoint the slate of nominations as presented in the agenda to the Whilamut Natural Area Citizen Planning Committee. The motion passed, 7:0. Police Commission Mr. Pryor, seconded by Ms. Bettman, moved to appoint Jon Belcher to Position 9 on the Police Commission for a three-year term beginning November 1, 2008, and ending October 31, 2011. The meeting adjourned at 6:50 p.m. Respectfully submitted, Jon Ruiz City Manager (Recorded by Lynn Taylor) MINUTES—Eugene City Council October 27, 2008 Page 9 Work Session