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HomeMy WebLinkAboutCC Minutes - 11/26/08 Work Session M I N U T E S Eugene City Council Work Session McNutt Room – City Hall 777 Pearl Street—Eugene, Oregon November 26, 2008 12:00 p.m. COUNCILORS PRESENT: Chris Pryor, Andrea Ortiz, Mike Clark, George Poling, Betty Taylor. COUNCILORS ABSENT: Alan Zelenka, Jennifer Solomon, Bonny Bettman Her Honor Mayor Kitty Piercy called the work session meeting of the Eugene City Council to order at 12:00 p.m. A. WORK SESSION - Review Police Auditor Job Description Acting Human Resources Director Alana Holmes gave a brief update on the recruitment process for the police auditor position and directed the council to the Police Auditor Hiring Process summary document included as Attachment A to the Agenda Item Summary (AIS). Ms. Holmes noted that the summary was being brought before the council to determine their intent and interest in the following steps of the police auditor recruitment process. Interview with Mayor and City Council Ms. Holmes briefly described the interview process for the Mayor and City Council regarding the police auditor recruitment process as detailed in the summary document. Ms. Holmes, responding to a question from Ms. Piercy, noted that the candidates could be given a brief history of the police auditor position as part of the recruitment process if that was the direction of the council. Ms. Holmes noted that the summary under discussion was the same as for the recruitment process that had been used in 2006. Ms. Ortiz noted that the process had worked well in the past. Mr. Poling concurred with Ms. Ortiz’s assessment that the recruitment process used in 2006 had worked very well. Mr. Poling asked if any subcommittees were being formed to assist in the current recruitment process as had been done in 2006. Ms. Holmes replied that there were currently no plans to have any subcommittee breakouts to assist in the recruitment process. She noted that it did not appear that there would be a surplus of candidates applying for the police auditor position and that no subcommittees would be necessary. Ms. Taylor commented that the previous recruitment process had worked very well except for the fact that there had been two candidates who were clearly not qualified for the position. She felt it was important that the council review the application, but hoped there might be some way to sort out undesirable candidates earlier in the recruitment process this time. Mr. Poling and Mr. Clark agreed with Ms. Taylor’s MINUTES—Eugene City Council November 26, 2008 Page 1 Work Session statement. Ms. Holmes, in response to a question from Mr. Clark, noted that thirteen applications had been received thus far for the police auditor position. Interview with Internal Panel Members Ms. Holmes briefly described the interview process for the Internal Panel Members regarding the police auditor recruitment process and as detailed in the summary document. Ms. Piercy asked if during the previous recruitment process any stakeholder representatives had been identified who should have been included in the internal panel but were not. Ms. Holmes answered that she had not heard of any such considerations but that she would review the results of the last recruitment process and discuss the matter with current internal panel members to see if any such omitted stakeholder representatives could be identified. Ms. Holmes passed out a list of the internal panel members from the previous recruitment process and asked the council to make suggestions about who else might need to be included in that group. Presentation and Q&A Forum with Community Panel Ms. Holmes briefly described the presentation and community panel forum component of the police auditor recruitment process as described in the summary document. Ms. Holmes noted no objections to continuing to use the format used in the previous recruitment process in 2006. Ms. Holmes, responding to a question from Ms. Piercy, noted that the Mayor and City Council might have the opportunity in the early part of 2009 to provide input on the makeup of the community panel for the current recruitment process. Tour of City Given By Executive or Division Manager Ms. Holmes briefly described the tour of Eugene to be given to police auditor candidates. She maintained that the tour provided a good opportunity to orient the candidates to the community. Ms. Piercy commented that in 2006 the Q&A forum and community panel had taken place before the interview process for certain candidates and asked if that would continue to be the case. HR Recruitment Selection Manager Becky Hopkins commented that the forum/community panel and the interview processes had been staggered so that they would be easier to schedule. Mr. Poling noted that it was very helpful during the previous process to have the feedback from the forum and community panel process available to the council before the interview process. Ms. Holmes noted that the candidates would be scheduled to provide for that availability of feedback as much as possible for the current recruitment process. Ms. Piercy convened an executive session of the Eugene City Council at 12:14 p.m. and reconvened the work session meeting at 12:46 p.m. Ms. Holmes noted that information had been distributed to the council from executive recruiter Eric Middleton who was creating a poll for candidates regarding the police auditor recruitment process. Mr. Poling responded that the poll supplemental questions were good and felt they addressed issues that were important to both the council and the City at-large. Mr. Clark and Ms. Ortiz concurred with Mr. Poling’s assessment. MINUTES—Eugene City Council November 26, 2008 Page 2 Work Session Mr. Clark asked what the ideal number of applicants was for the recruitment process. Ms. Holmes answered that her office did not have a specific number of applicants in mind, but felt that it would be more than the 13 applicants currently under review. She added that approximately 90 applications had been received during the previous recruitment process in 2006. Ms. Holmes noted that she had spoken with representatives from the City Manager’s office regarding their concerns about the low number of applicants. She said that Mr. Middleton might be making recommendations to the council regarding the number of applications after the position closed on December 8. Mr. Poling noted that the council could meet to discuss the recruitment process and perhaps lower the minimum requirements in order to boost the number of applicants. He expressed that it might be inadvisable to continue to require that all potential candidates have a law degree. Ms. Holmes, responding to a question from Mr. Poling, noted that it might not be necessary for current applicants to re-apply should the council choose to lower the minimum requirements for the position and re- start the recruitment process. She added that she would discuss that issue with Mr. Middleton and report back to the council. Ms. Piercy commented that Mr. Middleton had raised concerns about the minimum requirements for the police auditor position being too high. B. WORK SESSION – Options to Address Hate Speech City Attorney’s office representative Jerry Lidz reported to the council regarding the options to address hate speech as outlined in the AIS materials. Mr. Lidz briefly discussed the differences in the definitions of hate speech versus hate crimes for the benefit of the council, noting that hate crimes generally described conduct that constituted an offense under the law that was made worse by the perpetrator’s motive to express hatred or bias against the victim, while hate speech was protected under the Constitution except in very narrow circumstances. Mr. Lidz commented that the State and certain cities in Oregon had repeatedly tried over the last several decades to regulate expressive conduct that was deemed to be offensive but that each time the State Supreme Court had deemed that such regulation would be unconstitutional. Mr. Lidz directed the council to his comments from the AIS regarding State v. Johnson by way of illustration. Mr. Lidz expressed that none of the current proposed options regarding hate speech were certain to work and that it would be important for the City to proceed carefully regarding the matter. He described the various processes surrounding the four proposed options to address hate speech. Amendment of the Harassment Ordinance Mr. Lidz noted that the proposed amendment to the City’s harassment ordinance was identical to a State statute that the Supreme Court had declared unconstitutional. He noted that the Supreme Court’s focus of opinion in that instance was the statute did not require that a violent response be imminent. He added that the City Attorney’s office might be able to amend the proposed ordinance to address the constitutional flaws noted by the court in the statute, or the City could wait to see how the state legislature responded to the MINUTES—Eugene City Council November 26, 2008 Page 3 Work Session Court’s determination in their upcoming session. Civil Cause of Action Mr. Lidz noted that the City could create a civil cause action upon which to sue for damages in instances of hate speech and directed the council to the AIS materials outlining the same. Mr. Lidz commented that although the creation of a civil cause of action regarding hate speech was a viable option, the State courts had demonstrated reservations and concerns regarding such tort claims. He noted that while the City could create a civil cause of action, it might be difficult for plaintiffs to recover significant or meaningful damages, much less attorneys’ fees, in civil litigation. Intimidation III Mr. Lidz commented that the option to create a third degree of intimidation to the City Code would create a “threat of serious physical injury” rather than the “serious threat of physical injury” as defined by second degree intimidation. Penalty Enhancement Mr. Lidz expressed that while the enhancement of penalties for hate speech was a legitimate option, City law enforcement agencies did not have adequate jail space now to enforce any enhanced sanctions with measurable effectiveness. Mr. Pryor thanked Mr. Lidz for his efforts regarding the matter and noted that the issue of hate speech was difficult to approach from a criminal perspective. He expressed that he was intrigued by the notion of making hate speech an offense that could be addressed by civil causes of action is it could provide a significant disincentive to hate speech itself if not a means to recover significant damages by the victims of such offenses. Mr. Lidz responded that attempting to create disincentives might backfire as it could conceivably create disincentives to engage in forms of legitimate protected speech. Ms. Taylor indicated that the matter was complicated and she was not interested in doing anything that might be limiting or inhibiting to free speech. Mr. Clark noted he had participated in several conversations with the Human Rights Commission regarding hate speech. He commented that while he was a strong advocate for free speech in the community, there were some instances of hate speech that crossed the line between opinion and injury and that it was the injurious hate speech that warranted further action. He indicated interest in a continued exploration of the option of amending the City’s harassment ordinance. Ms. Ortiz agreed with Mr. Clark’s statement, and further opined that there was a cumulative effect to instances of hate speech, further stating, “a thousand cuts make you bleed.” She felt it was important to take action regarding the matter. Mr. Poling agreed with Mr. Clark’s statement, but noted that he was not interested in supporting the creation of civil causes of action regarding hate speech. He noted that he would be supportive of the option to create a third degree of intimidation in the City Code since such charges would at the very least become part of an offender’s criminal record. He advocated for additional public hearings regarding the matter. Mr. Clark noted that it was important to communicate effectively with the public in order to ensure that there was no confusion regarding the City Council’s motivations or perceived reluctance in taking stronger MINUTES—Eugene City Council November 26, 2008 Page 4 Work Session action regarding instances of hate speech. Mr. Pryor felt that creating a third degree of intimidation in the City Code might not be effective as such a level of intimidation would be difficult to prove and that subsequently such a level of intimidation might be overturned by advocates of free speech. Mr. Lidz noted that there were legal remedies to address hate speech, but that it was often difficult for the district attorney and city prosecutor’s office to determine which legal remedy to use based on the facts of each case. He commented that he would welcome the challenge of drafting an ordinance that would serve as an effective deterrent to hate speech while at the same time respecting the civil rights of the community. Ms. Piercy recognized that the issue of respecting civil rights while addressing hate speech was difficult and complicated. Ms. Taylor recognized the difficulty in addressing hate speech in the community, but indicated that she was not interested in spending too much of the City’s time and money on the issue. Mr. Clark asked if there were any City Code charges of harassment that could be enhanced or strengthened in tandem with the Code’s intimidation charges. Mr. Lidz responded that such enhancement could be achieved by amending the harassment ordinance he previously mentioned. Ms. Piercy asked how the City Attorney’s office would go about redefining the harassment ordinances within the parameters set by the Supreme Court’s decision in State v. Johnson. Mr. Lidz replied that the ordinance would have to be examined in relation to the state statute that was declared unconstitutional and then compared to whatever response the state legislature made to that decision. Mr. Pryor appreciated that the current work session provided the opportunity to discuss the state harassment statute. Mr. Pryor, seconded by Ms. Taylor, moved to direct the City Manager to bring to a public hearing an ordinance that (1) defines Harassment to deal with the Oregon Supreme Court’s decision in State v. Johnson that declared the existing version unconstitutional, and (2) creates an offense of Intimidation in the third degree. The motion passed, 4:1 (Ms. Taylor voting in opposition). Ms. Piercy adjourned the meeting at 1:25 p.m. Respectfully submitted, Jon Ruiz City Manager (Recorded by Wade Hicks) MINUTES—Eugene City Council November 26, 2008 Page 5 Work Session