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HomeMy WebLinkAboutCC Minutes - 04/13/09 Work Session (2) M I N U T E S Eugene City Council McNutt Room—City Hall—777 Pearl Street Eugene, Oregon April 13, 2009 5:30 p.m. COUNCILORS PRESENT: Chris Pryor, Mike Clark, Andrea Ortiz, Jennifer Solomon, Alan Zelenka, George Poling, George Brown, Betty Taylor. Her Honor Mayor Kitty Piercy called the work session of the Eugene City Council to order. She announced that Mr. Clark would join the meeting at 6:35 p.m. to participate in the council’s discussion of a complaint against the Police Auditor. A. COMMITTEE REPORTS AND ITEMS OF INTEREST FROM MAYOR, CITY COUNCIL, AND CITY MANAGER Ms. Piercy reported that she had delivered the welcoming address at the conference of Oregon police chiefs. She met with Representative Peter DeFazio to discuss transportation land use planning and with youth from the New Roads program to discuss their issues and concerns. She participated in a round table with mayors from other local jurisdictions. Ms. Solomon attended a Human Services Commission subcommittee meeting on budget issues as the commis- sion moved into its budget cycle. Mr. Brown reported that he attended a meeting of the Joint Elected Officials (JEO) Economic Development subcommittee. Mr. Poling said the Council Committee on Intergovernmental Relations (CCIGR) discussed HB 2865, related to collection of SDCs (system development charges) at time of occupancy but did not take a position. He wanted to support the legislation and would bring the matter up at the council’s regular meeting. Mr. Pryor reported on the Housing Policy Board meeting and the West Eugene EmX Extension Corridor Committee. The corridor committee had received a presentation by the West Eugene Collaborative (WEC). He said the WEC was making presentations throughout the metropolitan area and would be at the council’s April 27 meeting. He attended the police chief conference breakfast and commended Acting Police Chief Pete Kerns and Captain Steve Swenson for hosting the event. Ms. Ortiz attended meetings of the Civilian Review Board and Human Rights Commission and several open houses, including one for the improvement project on Elmira and Maple roads. She also attended a meeting sponsored by Lane County Regional Air Protection Agency (LRAPA) to discuss the biomass operation at Seneca. She described a presentation on the Neighborhood Empowerment Plan at the Whiteaker Community Council. Ms. Taylor said it was great news that Lord Leebrick Theater had purchased a building downtown on Broadway. She received complaints on several items, including street assessments, which she felt were unjust, retaining blackberry bushes along Amazon Creek and the secret vote related to the Police Auditor. MINUTES—Eugene City Council April 13, 2009 Page 1 Work Session Mr. Zelenka stated he attended a meeting of the Sustainability Commission and the Metropolitan Policy Committee (MPC). He complimented the University of Oregon and the construction company building the new arena for respecting agreements with the neighborhood and minimizing the impact of construction activities. He said Lane County would receive approximately $6.5 million in federal economic stimulus funds and the MPC had identified priority road projects to receive funding. He said the MPC also received a presentation from the WEC, which was very interesting. Ms. Piercy commented that she joined Springfield Mayor Sid Leiken and Lane County Commissioner Pete Sorenson in issuing a press advisory about the collaboration of all three jurisdictions on economic development. She announced that the City of Eugene was recognized on Arbor Day for its urban forestry program. City Manager Jon Ruiz thanked Urban Forester Mark Snyder for his dedication to maintaining the City’s trees. He noted the WEC would make a presentation to the council on April 27 and the Budget Committee would meet on April 15 to discuss the General Fund deficit and financial forecasts. He announced that $250,000 in urban renewal loan funds for gap financing had enabled Kesey Enterprises to purchase the McDonald Theater building. In response to a question from Ms. Solomon, Mike Sullivan, Community Development Division, explained that the gap financing came from the Downtown Revitalization Loan Program, which was funded as part of the urban renewal program. B. WORK SESSION: Local Economic Development Plan – Part 1 Mr. Ruiz said the City had a three-pronged approach for economic development: ? State and federal economic stimulus dollars ? A long-term view of the regional economy over the next 20 years ? City organization strategies for helping existing businesses and jobs Mr. Ruiz introduced Planning and Development Executive Director Susan Muir to discuss preliminary economic development concepts. He said a second work session would focus on those items of interest identified by the council and include recommendations for moving forward. Ms. Muir stated that national, state and local economic conditions had affected issuance of residential building permits, reducing the average number per month from 40 in 2006, to 14 in 2008. She said commercial and industrial permits were somewhat lower, but the value of those applications was high. She said a number of measures had been taken to alleviate the development process while preserving the council’s policies. Those included deferring fee increases, reducing turnaround time for permit reviews, using stimulus funds for road repair projects and making some services available on Saturdays. Ms. Muir reviewed agenda item summary Attachment E, Possible Local Stimulus Actions and Attachment F, Items for Council Discussion. She said symbols indicated whether the item had been implemented, was being explored administratively or reflected a policy issue that required direction from the council. She noted that the City would receive $370,000 in federal economic development funds and staff would present recommendations for use at the next work session. She asked the council for feedback on the items in Attachment F. Ms. Piercy was pleased with the focus on local activities and urged that strategies include filters for wages, benefits and sustainability to assure consistency with City goals and policies. She said the public should be MINUTES—Eugene City Council April 13, 2009 Page 2 Work Session involved in discussions of strategies as consumers. She encouraged the council to clearly identify its vision for downtown to help guide developers. Ms. Taylor asked for an explanation of more flexible home occupation standards. Ms. Muir replied that greater flexibility could allow someone to operate a small-impact business from a home under certain guidelines, including those for parking. Ms. Taylor agreed with Ms. Piercy’s suggestion to apply a sustainability screen to ideas. She pointed out that the downtown belonged to everyone, not just those who operated businesses there. She said alleys were an asset and aided pedestrians and bicyclists moving around in the downtown area. She did not want to offer tax breaks without clear benefits and reiterated her opposition to enterprise zones. She said the City should consider ways to collect taxes from everyone equitably, instead of giving more tax breaks. She pointed to the example of Hynix, which was provided incentives to locate in Eugene and then left. She preferred to assist local businesses. Ms. Muir said there were no policy items on the list to increase tax breaks. Mr. Pryor expressed interest in the concept of a business chain, which had been an asset during previous times of economic hardship. He also favored business loan programs. He appreciated the City’s efforts to find a balanced approach. He said it was important to help both small and large businesses. He noted that Hynix jobs paid well and had good benefits, and Hynix paid the largest property tax in the area for many years, which more than compensated for the incentives it received. Mr. Zelenka commended staff for the actions that had already been taken. He agreed with Ms. Piercy that any actions should have a synergy of goals and include jobs, sustainability, energy efficiency and long-term investments that would produce a good economic environment in the future. He noted that Eugene was 21 on a list of comparable communities from across the nation considered the best places for business and careers. Regarding Attachment F, Mr. Zelenka expressed concern with Item 9, related to sale of surplus City property. He said selling at a low point in the real estate market might not be an appropriate strategy. He also cautioned, regarding Item 13 related to general code amendment, against taking short-term actions that could have a long- term impact on the community’s livability. Mr. Poling declared that he could have a conflict of interest on issues regarding the airport because of his occupation and might need to recuse himself during those discussions. He said that the sale of City-owned property should not occur unless it was to the City’s advantage; a viable development project could provide that benefit, even if the sale price was somewhat lower than anticipated. Ms. Piercy was in favor of Item 4 related to use of City facilities as incubators for small business. She encouraged staff to also consider what types of activities would be likely to draw other business to the facility and the downtown area. She suggested that the University of Oregon, School of Business, might be a resource for the City. She pointed out that economic stimulus dollars could help initiate activities but were not sustainable in the long-term. Ms. Ortiz commented that she supported enterprise zones and urban renewal districts as tools that were used wisely to encourage economic development. She asked if there had been consideration of deferring fees until a property was sold. Ms. Muir said the City had a program that allowed an owner to finance system development charges (SDCs) and make payments over a period of ten years. Ms. Ortiz emphasized the importance of reflecting City values in the use of facilities for small business incubators and seeking business owners from diverse backgrounds. MINUTES—Eugene City Council April 13, 2009 Page 3 Work Session Ms. Solomon asked for an example of Item 3, completion of construction of capital projects to serve developa- ble lands. Ms. Muir said that could apply to development sites that were waiting for services to be extended before being available for use. She said extension of services would be based on the site meeting specific criteria. Mr. Poling said the fire station in City Hall was a good example of a vacant City facility that could be used for activities that would attract people to the downtown area. He commented that Springfield and Florence had both implemented programs to delay the payment of SDCs. Ms. Muir summarized that staff would explore ways to reflect City values in economic development strategies and prepare a package of recommendations to present to the council at its May 13 meeting. . CONSENT CALENDAR C A. Approval of City Council Minutes of January 27, 2009, Joint Elected Officials Meeting; February 9, 2009, City Council Meeting; February 17, 2009, City Council Meeting; February 23, 2009, Work Session; February 25, 2009, Executive Session; March 2, 2009, Executive Ses- sion; March 2, 2009, Regular Meeting; and March 3, 2009, Joint Elected Officials Meeting B. Approval of Tentative Working Agenda C. Approval of Neighborhood Matching Grants D. Resolution 4969 Extending the Time for Conveyance of Property Concerning the Multiple- th Unit Property Tax Exemption for Property Located at 19 Avenue and Charnelton Street, Eugene, Oregon and Amending Resolution 4966 E. Adoption of Resolution 4968 Supporting Application for State of Oregon Parks and Recreation Department Local Government Grant Matching Funds for Parks F. Initiation of Infill Compatibility Standards and Opportunity Siting Code Amendments G. Ratification of Intergovernmental Relations Committee Actions of February 18, 2009 H. Interim Appointment to the Human Rights Commission Ms. Piercy noted that the discussion of the economic development plan had concluded earlier than expected and suggested taking up the Consent Calendar, pending Mr. Clark’s arrival. City Attorney Glenn Klein pointed out that the agenda for the regular meeting at 7:30 p.m. indicated that if time permitted, action on the Consent Calendar could be taken at the work session. Mr. Ruiz added that items pulled from the Consent Calendar would be acted upon at the regular meeting. Ms. Solomon pulled Item E. Mr. Zelenka pulled items C and F. Mr. Zelenka, seconded by Ms. Taylor, moved to approve the items on the Consent Calendar, with the exception of items C, E and F. The motion passed unanimously, 7:0. Ms. Taylor moved to proceed with the next item on the agenda. The motion died for lack of a second. The council took a short break. . WORK SESSION D Complaint Involving Police Auditor MINUTES—Eugene City Council April 13, 2009 Page 4 Work Session Mr. Clark arrived at 6:35 p.m. and Ms. Piercy reconvened the work session. Mr. Klein provided an overview of the process for handling complaints against employees of the council. He said the council had to determine if it had sufficient information to act on the complaint; if it determined there was sufficient information, the council could deliberate and take action or postpone action to a future council meeting. He said if the council determined that more information was needed, it would move to the full investigation step in the process and hire an independent investigator. He said the complaint alleged that photographs contained in the Internal Affairs (IA) database were released by the Police Auditor to a private attorney and the release of those photographs was improper and violated the confidentiality agreement. He said Interim Police Auditor Dawn Reynolds had responded that she had released the photographs, but they were of the individual represented by the attorney, the photographs would have been discoverable in any event, and release of that kind of information was consistent with the way the police auditor’s office had acted since its inception. Ms. Ortiz did not want to spend any more funds on an investigation and did not believe it was necessary. She regretted that she had not had more specific information about the complaint at an earlier point in the process and felt it had received more attention than it required. She had hoped there would be an opportunity for Ms. Reynolds to respond directly to the council about the complaint without having to hire an attorney. She questioned whether Ms. Reynolds decided independently to release the photographs or had been taught that was an acceptable practice by the previous auditor. She said the practice of releasing information from the IA database should be stopped, and Ms. Reynolds should adhere to the confidentiality agreement. She wanted to return Ms. Reynolds to work and have a mediator work with Ms. Reynolds and Deputy Auditor Elizabeth Southworth to resolve outstanding issues to assure the office of the auditor operated smoothly until a new police auditor was hired. Ms. Piercy agreed the City should facilitate mediation between Ms. Reynolds and Ms. Southworth. Mr. Klein added that a member of the council and a city attorney with expertise in personnel matters should also speak with Ms. Reynolds and Ms. Southworth to clarify expectations and assure both parties understood obligations and concerns with respect to the aftermath of a whistle-blowing incident. Mr. Clark looked forward to a police auditor system that would operate smoothly and routinely, without so much controversy. He cited comments from a candidate for the auditor position that the job was to follow the law and go where it might lead, which was a good guide to handling the current situation. He agreed with many of Ms. Ortiz’s points, but felt the confidentiality agreement Ms. Reynolds had signed was an issue. He said the agreement prohibited the release of any information from the IA database for any reason. He asked Mr. Klein to read the relevant section of the confidentiality memorandum of agreement (MOU) and indicate whether that granted Ms. Reynolds the ability to make a decision to share certain types of information. Mr. Klein noted that the language was in the MOU signed by Ms. Reynolds in January 2009; it was not reflected in ordinance or statute. He read the following: “I agree that I will keep strictly confidential: any information observed or obtained from any local, state or federal criminal justice systems, electronic patient health information protected by the Health Insurance Portability and Accountability Act, confidential personnel records, and any other restricted data. I agree that I will only use and disseminate Internal Affairs case file information and data from the IA database in the performance of my official duties, in that I will not knowingly allow any unauthorized access to the data. I understand that to use the confidential and restricted information outside of my official duties may be a violation of law.” MINUTES—Eugene City Council April 13, 2009 Page 5 Work Session Mr. Clark asked if under the agreement Ms. Reynolds had the ability to decide what information she did or did not share. Mr. Klein said to the extent that something fell under one of the provisions in the agreement, there was no discretion at all and restricted information could not be released. Mr. Clark asked if the photographs were restricted data. Mr. Klein replied that his preliminary conclusion was that the material was restricted data. If his answer was critical to the council, he would require two more days to collect additional information and finalize his analysis. Mr. Clark was pleased that the discussion was occurring in a public meeting at Ms. Reynolds’ request as he was not comfortable with a private conversation. Mr. Poling pointed out that the complaint process established by the council had been followed; it was Ms. Reynolds’ decision to hire an attorney. He noted that in Ms. Reynolds’ response to the complaint she indicated she had released physical evidence, not testimony, as the attorney would have obtained it anyway. He said that decision was the purview of the judicial system, not the police auditor. He was also concerned with statements in the response that he felt attempted to shift blame to the employee who complained, by questioning that person’s motives. He said that while the response indicated the auditor’s office attempted to avoid becoming involved in criminal or other legal proceedings, releasing the photographs did involve the auditor’s office. Mr. Pryor said as an employer he used a model of progressive discipline, which was based on the concept that issues had a progressive nature and included three standards. His criteria for determining the seriousness of an incident related to whether people were hurt or equipment destroyed. His second standard related to whether the situation was clear and unambiguous and the third related to whether the violation was intentional or just demonstrated poor judgment. He noted that there was no deception regarding the incident and Ms. Reynolds admitted that she released the information. He was not certain at this point, after reviewing Ms. Reynolds’ response, whether the photographs were restricted data and would need more time and a final opinion by the City Attorney to make that determination. He said it was difficult to determine whether an act was an intentional violation or an exercise of poor judgment and that difference would have an impact on the nature of progressive discipline. Ms. Taylor asserted that the council’s action was hasty and ill-advised and there should have been an investiga- tion of the complaint and a determination of whether it was a violation before placing Ms. Reynolds on administrative leave. She urged the council to reinstate her as soon as possible. She said it would have been preferable for the council to have a conversation with Ms. Reynolds about the situation instead of jumping to judgment. Mr. Zelenka remarked that the council did not jump to judgment; it followed standard operating procedure when dealing with personnel issues. He noted those were typically discussed in executive session but Ms. Reynolds had requested that the council deliberate on the matter in a public meeting. He stated that Ms. Reynolds was placed on administrative leave with pay, which did not equal suspension or imply guilt. He said the council should treat any complaint it received seriously and deal with those involved in a thorough, fair and respectful manner. He agreed with Mr. Pryor’s comments about progressive discipline and determining how serious, unambiguous and willful an incident was before taking action. He thought the council shared some responsibili- ty for the problem because of its lack of supervision of the Police Auditor; however, a process had been initiated to remedy that. Mr. Zelenka said it was not clear to him whether Ms. Reynolds knowingly violated the confidentiality agreement, but she had at least demonstrated poor judgment. He said the council should move forward to reinstate Ms. Reynolds with clear guidelines to be followed until a new police auditor was hired. Those MINUTES—Eugene City Council April 13, 2009 Page 6 Work Session guidelines included not releasing any information from the IA database without the approval of the City Attorney, frequent check-ins with the council or council officers as necessary before making those types of decisions, and meetings with the council officers, the City Attorney and the Deputy Police Auditor to discuss legal issues related to moving forward and mediation. Mr. Brown stated that based on the materials he had read he felt there was sufficient information for the council to make a decision. He did not feel the complaint was sustained and no discipline was merited; the incident arose from a misunderstanding. He said the City Manager and Municipal Judge both operated under long- standing and clear guidelines, while the police oversight system was new. He said anyone could make a mistake in judgment and Ms. Reynolds did nothing wrong, although it would have been better had Ms. Reynolds made copies instead of allowing the attorney to sit in her office and view the IA database. He cautioned against micro-managing the Police Auditor. Ms. Ortiz asserted that the council’s decision to hold an executive session and place Ms. Reynolds on administrative leave was not personal; it was based on the City Attorney’s advice and concerned the integrity of the police auditor’s office. She said it would have been inappropriate for the council to ignore or minimize the complaint. She remarked that all police oversight systems experiences “glitches” during their initial years of operation. She appreciated the City Attorney’s advice, but said it was the responsibility of the council as employer to make a decision about Ms. Reynolds’ status. She said the council also needed to be more responsible about providing adequate supervision for the Police Auditor, without micro-managing the office. Mr. Clark believed there was enough information to sustain the complaint as the agreement was clear in its prohibition against releasing any information for any reason. He said in order to decide against sustaining the complaint, a person would have to decide that Ms. Reynolds had the authority to decide which pieces of information were or were not covered by the agreement. He had previously expressed concerns to Ms. Reynolds on the issue of confidentiality. He agreed the council did not fulfill its duty to provide supervision and clear direction to the Police Auditor. He was disappointed in Ms. Reynolds’ judgment, but would not vote to dismiss her even though there was a clear violation of the agreement. He liked the guidelines suggested by Mr. Zelenka. He asked if there was information other than the photographs contained in the IA file that might have been revealed. Mr. Klein replied that the council should confine its discussion and decision to the specific complaint. Mr. Clark asked if the City had any liability or financial exposure in a future case related to divulging IA information. Mr. Klein said it would depend on the nature of the information being divulged and gave several examples that could put the City at risk. Mr. Clark asked if in Mr. Klein’s opinion the council needed any additional information to make a decision. Mr. Klein said it would depend on what the council decided was critical, such as a final determination on whether the confidentiality agreement was violated. He did not hear a majority of the council express an interest in that or other information. Ms. Piercy summarized the council’s discussion: all complaints should be treated equally and fairly; additional information was not required to make a decision; the council needed to be accountable; information from the IA database should not be shared, and there was some question about Ms. Reynolds’ judgment. Mr. Pryor was pleased to hear the council acknowledging how its supervision of the auditor might have contributed to the situation. He said during his experience with the Ethics Commission there were instances when someone unknowingly committed a violation; that could not be overlooked but did not merit a fine or similar punishment. In those instances, the commission would determine a technical violation had occurred and issue a letter noting the violation while acknowledging it was likely inadvertent. He said the council should MINUTES—Eugene City Council April 13, 2009 Page 7 Work Session acknowledge that a violation of the confidentiality agreement had occurred, but punitive action beyond a letter acknowledging that fact was not required. He said additionally the council should put in place much clearer guidelines for use of the IA database information and other aspects of the auditor’s office. Mr. Brown remarked that based on his observations, Ms. Reynolds was doing a very good job and was aware of how confidentiality could be compromised. He did not believe there was a willful violation of the agreement and the council should work with the Police Auditor to develop better procedures. Mr. Zelenka commented that the council would take up the issue of police auditor supervision at its May 11 meeting, and the complexity of the issues involved was why he supported requiring the police auditor to have a law degree. Mr. Zelenka, seconded by Mr. Clark, moved to reinstate the Police Auditor, with the caveat that the council believed she exercised poor judgment in getting into the circumstance and prohibited her from showing any information to any unauthorized person outside the criminal justice system from the IA PRO system without the approval of the City Attorney; requiring the Police Auditor to check in with the City Council officers before making substantive decisions; directing her to meet with council officers, the City Attorney and Deputy Police Auditor to discuss legal issues moving forward and elicit the help of a mediator to help the Police Auditor and Deputy Police Auditor work during the interim until a new police auditor was hired. Mr. Clark said the citizens of Eugene deserved to have a police auditor office that ran smoothly. He felt that the complaint could be sustained, but would support moving forward because that was the will of most of the council. He asked if the Police Auditor would have access to the IA database if the City Attorney concluded there had been a violation of the confidentiality agreement. Mr. Klein said if the council passed a motion to reinstate the Police Auditor he understood the council intended for her to have access to the IA database. Mr. Clark asked if the City would have additional liability if there was another violation of confidentiality. Mr. Klein said he did not believe the City would have any additional liability, but suggested modifying the motion to clarify that IA PRO information access would not be given by the auditor to anyone outside of the auditor’s office, instead of using the phrase “unauthorized person.” Mr. Zelenka and Mr. Clark agreed with the suggestion. Ms. Taylor, seconded by Mr. Brown, moved to separate reinstatement of the Police Auditor from the other provisions in the motion. The motion failed 6:2, Ms. Taylor and Mr. Brown voting yes. Ms. Taylor objected to placing conditions on the reinstatement of the Police Auditor and did not understand the council’s unwillingness to separate the issues. Ms. Solomon recommended defining the word “substantive” in the motion to clarify the type of issue that should be brought to the council’s attention. Mr. Zelenka felt the threshold for what qualified as substantive had been dramatically lowered. He said there would be a new police auditor within a short period of time and that limited the number of issues that might arise. Ms. Piercy commented that the council’s supervision of the Police Auditor would be improved when new procedures were adopted. She thanked the councilors for the tenor of their discussion of a difficult subject and their willingness to move forward. MINUTES—Eugene City Council April 13, 2009 Page 8 Work Session Mr. Clark suggested modifying the motion to replace “…check in with council officers before she makes substantive decisions…” with “have regular check-in with council officers on day-to-day operations.” Mr. Zelenka restated his motion: “I move to reinstate the Police Auditor with the caveat that the council recognizes she exercised poor judgment in getting into this circumstance; that she does not permit access to IA PRO data to anyone outside the police auditor’s office without checking with the City Attorney; that she check- in with council officers before she makes substantive decisions and meet regularly with council officers on day- to-day management of the police auditor office; meet with the council officers, the City Attorney and the Deputy Police Auditor to discuss legal issues about moving forward and meet with the Deputy Police Auditor and a mediator on how to work together until the council hires a new police auditor.” Mr. Brown wanted to see half of the provisions eliminated because he felt they were insulting to the experience and intelligence of the council’s employee. He did not like the language but would support the motion because he wanted the auditor to return to work. Ms. Taylor said she felt she was being forced to vote for something that was an insult to the person in question. She asked if the provisions would apply to another person who was the police auditor. Mr. Zelenka said the provisions applied to Ms. Reynolds, but many of them would likely be in the new supervisory procedures. The motion passed unanimously, 8:0. The meeting adjourned at 7:27 p.m. Respectfully submitted, Jon Ruiz City Manager (Recorded by Lynn Taylor) MINUTES—Eugene City Council April 13, 2009 Page 9 Work Session