MINUTES FOR THE REGULAR MEETING
November 6, 2007
Civic Center Council Chambers
CALL TO ORDER
Mayor Morrison called the meeting to order at 7:00 p.m. in the Civic Center Council Chambers.
Councilors Hardesty, Navickas, Hartzell, Jackson, Silbiger and Chapman were present.
MAYOR’S ANNOUNCEMENT OF BOARD AND COMMISSION VACANCIES
Mayor Morrison announced vacancies on the various commissions and committees and noted those who are interested can apply at the City Recorders Office.
SHOULD THE COUNCIL APPROVE THE MINUTES OF THESE MEETINGS?
The Study Session minutes of October 15, 2007, Executive Session minutes of October 16, 2007 and the Regular Council Meeting minutes of October 16, 2007 were approved with an amendment to the minutes of October 16, 2007, which corrected the Roll Call Vote on page 5 to include Councilor Hardesty’s vote.
SPECIAL PRESENTATIONS & AWARDS
The FEMA Award was presented to the City of
Mayor Morrison announced that the first item under Public Hearings, concerning the Meadowbrook Subdivision, was removed from the agenda at the appellant’s request and will be addressed at a later meeting.
1. Does the Council accept the Minutes of Boards, Commissions, and Committees?
2. Should Council accept the quarterly report as presented?
3. What will the community process be for the City Facilities Master Plan and Updated Space Needs Analysis?
4. Will the Council confirm the Mayor’s appointment of Bill Molnar to be the City’s Community Development Director and approve the attached employment agreement?
Councilors Jackson/Silbiger m/s to approve the Consent Agenda items. Voice Vote: all AYES. Motion passed.
1. Does the Council want to reject the appeal of the Meadowbrook Subdivision SDC credits and affirm the staff calculation of SDC credit at $63,075 or grant the appeal and award the SDC credits in a greater amount or partially grant the appeal by considering other aspects of the developer’s improvements that may be eligible for additional credits?
Item delayed until the November 20, 2007 City Council Meeting.
2. Does the Council find that the negotiated development agreement (Verde Village) that governs a land exchange, three annexations, a Comprehensive Plan Map and Zone change, and Outline Plan and exception to street standards, a physical constraints review permit, and a tree removal permit is consistent with State law, City Code and City policies either as presented or as modified?
Mayor Morrison read aloud the steps and procedures for the Public Hearing for Land Use Hearings and called the Public Hearing open at 7:15 p.m.
The subject matter of the public hearing includes the following: Ordinance declaring approval of a Development Agreement; negotiated Development Agreement pursuant to ORS Chapter 94; Land Exchange pursuant to ORS 271-300 – 271.350 involving a portion of the City Dog Park access and Planning Action 2006-01663; including requests for Annexation; Withdrawal from Fire District No. 5; Comprehensive Plan Map Amendment; Zoning map amendment; Outline Plan Approval; street exceptions; Physical constraints permit and tree removal permit for the properties located at 87 W. Nevada Street and 811 Helman Street (Ashland Greenhouses).
ABSENTIONS, CONFLICTS, EX PARTE CONTACT
Councilor Chapman reported no ex parte contact. Councilor Navickas reported a site visit. Councilor Hartzell reported no ex parte contact, but noted she is the liaison to the Planning Commission. Councilor Silbiger submitted an email, sent to him, into the record, and stated he had no other ex parte contact. Councilor
Confirmation on whether or not the minutes of the council meeting, where discussion was held regarding the land exchange had been included in the record.
Mayor Morrison read aloud the list of Ashland Municipal Code applicable substantive criteria for this decision.
CHALLENGES - None
Senior Planner Maria Harris and Community Development Director Bill Molnar presented the staff report. Mr. Molnar noted three land-use elements in regards to the project:
1) Annexation - there are requests to change the comp plan designation for a portion of the property, sub-divide the property, install a multi-use path, acquire a tree removal permit, etc.
2) Land Exchange - the City would receive approximately 2.8 acres next to Ashland Creek for park purposes, and the applicant would receive 1.5 acres of land currently in use as the
3) Development Agreement – under state statute the numerous items included in the package are allowed to be bundled together and can be negotiated
He stated there are multiple departments working on this particular project, and added representatives from some of these departments are present to answer questions concerning the land-use exchange and development agreement. He noted the amount of time the Planning Commission has worked on the project as well as issues that were raised and consequently addressed by the applicant. He added the Planning Commission passed a motion to recommend the Council review and approve the project with the conditions and proposed modifications set forth by the commission.
Ms. Harris addressed the application, development agreement, and review process and staff recommendations:
1) Application Components – Land exchange and land-use requests to include a multi-use path, tree removal permit, etc.
Council was provided with a vicinity map of the subject property and surrounding area. Areas outside of the City limits, but still within the urban growth boundary were addressed. Ms. Harris noted existing conditions of the site to include both natural and unnatural features, i.e., greenhouse structures, trees, a wetland, etc. She stated that the value for the applicant’s property was $284,000, and the City’s property was valued at $134,000. The land exchange requirements include an advertised public hearing and council findings to determine whether land exchanged is not needed for a public use, or that the public interest may be furthered by the exchange and the property gained is of equal or superior value for public use than the property relinquished.
2) Description of the Application – The Planning Commission recommended 42 conditions of approval which address annexation criteria, comprehensive zoning map changes, an outlined plan approval to construct a 68-unit residential development, a physical constraints review permit, exceptions to the street standards and a tree removal permit.
Ms. Harris provided a detailed explanation of the proposed annexation, which meets annexation requirements. The applicant’s request is to change the western part of the property to a “suburban residential” area to allow flexibility with the layout of the units as well as the types of housing units. An important part of the proposal is energy and water conservation, and one of the key elements is to locate homes on an east/west access. The Planning Commission found that the proposal to construct energy and water conserving housing units met a public need that satisfied the criteria for the comprehensive plan change.
The applicant’s proposal of a system of new streets to serve the project and proposed multi-use path was indicated on a map. The units are a mixture of housing formats, and the purpose of the request for a physical constraints review permit is to locate a multi-use path in the Ashland Creek Riparian Preservation Area. The path and the disturbance created by the construction are located largely inside of the biologically determined riparian zone.
The application includes two requests for exceptions to street standards; 1) locate the multi-use path adjacent to Ashland Creek rather than a public street and 2) use a private drive to access the units rather than the required public street. There was an additional request to install curbside sidewalks on
The application also included a request to remove an Oregon White Oak that is located between two proposed units. The Tree Commission did review this request and recommended approval in November of 2006. Staff recommended four modifications in the council communication of conditions of approval; 1) delete Condition 37 for Sander Way, 2) possible modification of Condition 26 concerning the number of units and the “Net Zero Energy” Performance Standard, 3) Sander Way sidewalks need to be public and 4) the Conservation Division’s recommendations concerning water and energy conservation must be met.
3) Requirements of the Development Agreement – A way to bundle the applications with two benefits; it allows the City and the Council to review all of the information as one package and one process, and also maintains the discretionary character of an annexation because it’s a negotiated agreement.
If the application were approved, the next step would involve a draft agreement edited to incorporate the Council’s findings and changes before Council’s final review and approval by ordinance.
4) Review Process and Recommendations – Conduct a combined public hearing to include both the land exchange and land-use applications.
Once the public hearing is closed, staff recommends Council start with the land exchange application, as the land-use application is dependent upon the Council’s decision concerning the land exchange application. Ms. Harris clarified that the minutes of the council meeting where the land exchange was discussed had been included in the record.
Councilor Navickas stated his understanding that the City’s property value was based on the density bonuses they would receive upon relinquishing the riparian property and questioned if this was accurate. Ms. Harris explained that this was accurate during the initial appraisal, but noted it was later revised and corrected in the record.
Councilor Navickas questioned if the Riparian Ordinance does not allow the proposed pathway to be built, if the Council is being asked to give an allowance to the applicants to build it. Mr. Molnar responded that this is correct, and noted the burden is on the applicant to show that impacts have been minimized and identify the needs for the proposed pathway.
Councilor Hardesty questioned if the Housing Commission is aware that the affordable housing component is no longer necessarily going to be part of the Net Zero Energy Program. She also questioned if the proposed multi-use path is built, who would maintain the path. Ms. Harris noted the Housing Commission did review it during the pre-application process. In reference to the multi-use path, she stated the City would be responsible for maintenance. She also stated that the primary intent of a street along a natural feature was protection for that feature.
Councilor Chapman questioned if there was any discussion about staging or prioritizing the buildings to upgrade later to specific conservation elements. Ms. Harris responded that there was no discussion, and added this would be a question to ask the applicants.
Greg Williams/744 Helman/ Explained that the subject property has been in his family for 100 years, and that the property could not be expanded because all of the land is considered residential either in the City or in the County. He added he could develop the land the way it is right now using county and city zones but his intentions for the project is to set an example for the City of
Mr. Williams stated that he is not a land developer and has hired a team of individuals who are experts in sustainable land development. He has partnered with the Oregon Department of Energy and they have chosen this project as one of their pilot projects if it is approved, and with the
Ms. Kencairn explained that the pedestrian and bike paths are as high up on the bank as possible with a fence, and a 10-foot buffer between the fence and the houses, to keep people from being able to migrate their lifestyles into the riparian zone. The state standard for off set from the two-year flood plane on a creek is 50-ft., and they are at a minimum of 65 ft. for the riparian edge. The state standard has been exceeded and a biologist has delineated where the tree riparian effect is. The bike path creates connectivity to the greenway and to the surrounding areas and is an extension of the greenway along Bear Creek to
Ms. Kencairn commented that the solar elements of the units require a new way to look at homes and lot layouts. Units meeting zero net energy subdivision criteria do not sit on lots, they sit in “community-owned” spaces. There would be a homeowners association and all of the open spaces would be controlled by this association. Green spaces would be scattered throughout the site to provide opportunities for community gardens, play grounds, etc. The goal is to create a community that is made up of three smaller communities that are integrated.
She stated that the alternative storm water system is another reason for the proposed street layouts because they want the water to flow downhill and collect in the wetlands to integrate bio-swales. She added their goal is to create the best possible development while respecting the rules of the City’s development ordinances.
Chris Hearn/515 East Main Street/Stated it is a privilege to be a part of creating a prototype for other “green builders.” He noted many green builders feel that projects such as this are not common because they are expensive, and the flexibility necessary to take advantage of active solar techniques is not always allowed by ordinances.
Mr. Hearn stated that the project involves participation in affordable housing, partnerships and the City of
He noted that the City of
Gene Johnson (Engineer) & Galen Ohmart (Architect)/ SOLARC Architecture & Engineering, Inc.,
· Every home in the facility will be “net zero” capable.
· Every home will be solar equipped.
· All of the homes qualify for the maximum number of available state and federal tax credits.
· Every aspect of the project is fully compliant, meeting or exceeding all requirements with zero waivers, and all areas exceed standards for efficiency.
They addressed the comments made in the City of Ashland Electric Division’s memorandum that concerned “net zero,” and clarified they will analyze each design of the development to determine if it has the capability of net zero. It was pointed out that the passive solar state requirements for minimum passive solar energy were not met with the proposal but the state guidelines say a passive solar design has to produce 20% less heating energy, relative to a standard analysis, and not increase schooling energy. This is all that is required, and the rest of the standards are simply guidelines which the states works with you on to evaluate which combination of approaches you’re using and whether you’re meeting the requirements or not. They stated that the proposal, as it is written, does outline an approach that complies with the State’s minimum requirements.
They noted two threshold minimum requirements in the performance document; 1) each PV system either would be 3 kilowatts (kW) in size as a minimum or 2) sized so that it could produce 50% of the annual electric energy used in the home on an annual basis. Exhibit K3 describes in detail how they are approaching this project specifically and noted that they are not convinced they will be able to achieve a 3-kW system or need it, because they can meet this requirement with net zero energy. They requested that this information be reviewed more critically, and noted Exhibit K3 states their goals. They also commented that the State of
RVCDC representative clarified that it is their intention to make the homes as “green” as possible, the only thing that could hold this back would be the City of Ashland’s affordable housing policy, which has a cap for System Development Charges (SDC) referral and community development fee deferral. It was noted that “green” homes would likely be built but they cannot guarantee 100% that the units for low-income families will be considered net zero.
Mr. Ohmart stated their approach to design is strategic and money is best spent on reducing loads, which concerns the thermal envelope, good glazing, good orientation, getting mass inside the building if possible. He stated they are focused on giving the same quality of construction to RVCDC as
Mr. Ohmart explained that he did not the cost difference in bringing these units up to
The RVCDC representative noted that a special grant is a possibility to help with the “green” aspect, but a grant has not yet been written because the project needs to be approved first.
Councilors Hartzell/Hardesty m/s to extend public hearing until 9:30 p.m. Voice Vote: all AYES. Motion passed.
Mr. Ohmart clarified that PV units would be provided to other buildings.
Mr. Williams stated that if he develops the property as it is zoned now, then five houses will be built. He is trying to develop a much denser project and not use up more land. He noted if the project is turned down, he will develop the five houses and does not consider this alternative“green.”
Mr. Johnson clarified that engineering energy efficient town homes are similar. There are aspects of town homes that are more cost-effective because systems can be shared. Mr. Ohmart noted there is the benefit of a common wall between the units, and there is a need to orient the building. He added the roof must be formed in the right direction and will be part of the project. Mr. Johnson stated it is important to note that in a higher density-housing unit like this there is less roof per unit facing in the right direction, so it is potentially more difficult to get the PV required to be considered net zero. He noted the possibility of a rain/sun parking shelter area could support some PV.
Councilor Hartzell suggested the possibility of writing up these kinds of ideas in case RVCDC has to go with someone else. Mr. Johnson stated they have already begun this process. He added there is a 50% annual electric energy target that came from the development team in terms of needing a range of products in order to serve a range of customers. Mr. Ohmart added the design criteria are based on normal use. Mr. Johnson stated that even with the 50% target it is still going to a point that is way beyond what is considered normal practice, as they are shooting for a very high, unprecedented standard.
Councilor Hartzell pointed out, under condition 44, it seems as though the applicant is not embracing it.
Mr. Ohmart stated they are concerned with one aspect, and noted all other parts of the condition are fine. He stated the notion that they are required to put a 3 kW system on every roof is not practical, as they have some very small units. They may not have enough roof area on these units to do so and a 3 kW system may provide more than net zero energy to the project. He requested an exception to this aspect of the condition. Mr. Johnson noted if the system is too big, and too much power is made and exported, the same rate will not be achieved for that generated power, and the financial basis for doing it is just not there.
Councilor Hartzell questioned if staff is proposing that this element of the condition be eliminated or would they suggest different language to modify it. Mr. Johnson responded that they would suggest keeping the language the way it is written which sets the correct performance standard and still provides the flexibility required for the detailed design. He added there is a possibility the City Electric Director did not realize that the units are 600 sq. feet.
Ms. Kencairn stated there are a couple of pocket parks termed as playgrounds within the development, and noted they are located at the ends of walkways that are intentionally designed to be accessible without having to cross parking lots.
Councilor Hartzell questioned if they had considered placing a path on the east side of Ashland Creek. Ms. Kencairn responded that they do not own that property so they did not consider this idea. Mr. Williams noted that a path in this area would also be located in the floodplain, whereas the other path would not. He added that if the land exchange is granted, the other side of the creek is still not part of the exchange.
Councilor Chapman noted that during the presentation it was stated that the multi-use path was in “Phase II” and questioned what this means. Ms. Kencairn explained that Phase II is when a single-family residential portion would be built out. Mr. Williams further explained that Phase I refers to the cottages and town houses, and single-family homes are considered Phase II. He noted the path in question would go alongside the single-family homes and referred to as “Phase II.” He added their preference is to build the west side first and then the east side. He noted that access to the dog park would be closed only for a day or two of paving.
City Attorney Richard Appicello noted that in the Development Agreement the timetable indicating Phase I and Phase II is a point of contention. Mr. Hearn commented that the Development Agreement would not be in a finalized form until the Council makes their decision. Mr. Hear stated that the issue of reverting to city standards if net zero energy standards are not met as not been discussed or if RVCDC could achieve net zero energy standards.
Mr. Appicello explained that the City would look at the special conditions in the agreement and choose the recommendations from the Planning Commission on the zero net energy issue. He noted that currently the agreement does not reflect the flexibility that the applicant is asking for. He added there was a recent submittal that may have changed things in the Development Agreement.
Councilor Navickas questioned if, should the Council request 1.5 acres of parkland to be protected outside of the un-developable riparian area, the developer would be interested in coming back with another proposal for consideration. Mr. Hearn stated that this would be a problem because the County has a deed restriction that states if the land is ever used for anything other than parks and recreation, it will defer back to the County.
Councilor Navickas clarified that he is suggesting additional parkland on flat level ground to be used for a number of parks and recreational purposes. Mr. Hearn stated the answer to this is no. Developers have worked hard to negotiate in good faith but there comes a point when the City must decided if they want to strive for something greater, such as the proposed agreement, or back the applicant into a corner so they have no choice but to build something to county standards.
Ms. Kencairn added that the Council should consider the cost associated with projects that have been brought forward and that the applicant has already gone beyond with this project and to ask for more is not realistic, as they have already pushed to give as much as they can.
Mr. Hearn commented in regards to the Development Agreement, that there are red book standards that address what would happen in the event of certain types of conditions. He noted a list of concerns the applicant has in regards to the agreement, and added these concerns are most likely a result of the fact that the agreement is still in a state of flux. Mr. Hearn explained that the County is going to require the same deed restriction on the property, which states that the land must be used for parks or recreation purposes.
THOSE WISHING TO PROVIDE TESTIMONY – IN FAVOR AND OPPOSED
Public Hearing continued to November 20, 2007.
Staff reminded Council to continue to monitor ex parte contacts they might receive in the meantime. Mayor Morrison recognized citizens who submitted written comments, and noted these comments will be made part of the record.
PUBLIC FORUM (None)
UNFINISHED BUSINESS (None)
NEW AND MISCELLANEOUS BUSINESS (None)
ORDINANCES, RESOLUTIONS AND CONTRACTS
1. Shall the Council approve the second reading of an ordinance amending chapter 15 of the
Councilors Jackson/Navickas m/s to approve Ordinance # 2944. Roll Call Vote: Councilors Hardesty, Navickas, Hartzell,
2. Does the Council want to adopt a Resolution entitled “A Resolution exempting the
City Administrator Martha Bennett explained that there were two corrections concerning the previously adopted resolution; 1) an incorrect reference to state law and 2) a warranty should be used instead of a performance bond.
Councilors Hardesty/Jackson m/s to approve Resolution # 2007-39. Roll Call Vote: Councilors Hartzell,
3. Should Council approve a second resolution adjusting the FY 2007-2008 Budget to create appropriations and authorize expenditure of assest forfeiture revenues received in conjunction with the City’s participation in the regional drug enforcement program?
Adminstrative Services and Finance Director Lee Tuneberg explained this would be the second supplemental budget for this year and noted that a couple months prior to this meeting the Council approved a supplemental budget for $66,900 to utilize forfeiture moneys received. Of this amount, $22,000 will not be spent this year, leaving $44,900 for the City to expend.
Mr. Tuneberg presented the Council with a memo identifying expenditures, and noted the target to be expended this year is $190,000. If the $66,900 is used, the supplemental budget would total $123,100. He added if the net amount spent out of the $66,900 is $44,900 and the amount proposed by the Police Chiefs memo of $145,100 is spent, than the total amount adds up to the $190,000 target. Staff is asking the Council to s approve the supplemental budget of $123,100 and approve the expenditures identified in the chief’s memo.
Councilor Navickas voiced his dissapointment with the small amount of funds that will be used for training while other items seem excessive, such as the parking lot expansion, and questioned why items such as these are being prioritzed over training.
Police Chief Terry Holderness reminded the Council that they cannot use federal assets forfeiture funds to supplant their regular budget. He added he can only do so much training in any given year; in addition to their regular training they also hold diversity and field training. He noted scheduling issues and the difficulty in completing the currently scheduled training, that it would not be possible to spend more money on training than what he has already spent.
Councilor Hartzell questioned if the parking lot expansion will add asphalt, how it coorelates to the Master Facility Plan and how the entire parcel will be used.
Chief Holderness stated it would add asphalt, and noted that parking will be utilized by the Police Department even with the buildout of the the City facility. Also, a new user would still find the parking feasible and it could be used for storage units.
Councilors Silbiger/Jackson m/s to approve Resolution # 2007-38. Roll Call Vote: Councilors Silbiger, Hardesty,
4. Does the Council wish to formally invoke the recreational immunity laws as defined in ORS 105.682?
Parks Director Don Robertson explained that this ordinance provides a layer of protection from liability of injury or claim against the City in the event that a citizen or individual is using a free admittance recreational property within the City. If an injury results as a defect in any of the City’s maintenance or equipment, the City is not protected, the City insurance company recommended they invoke this particular requirement from the State.
Mr. Robertson explained that this is a resolution that protects the City under ORS 105.682 and that the word “invoke” is a result of the recommendations that came from the insurance company.
Mr. Appicello clarified that the statute states that you can informally or formally reference this, and that the word “invoke” is not necessary but that it is what is recommended. The City is formally referencing it but is still protected, “informally.” He stated that the use of the word “invoke” adds a certain level of protection.
Councilors Silbiger/Chapman m/s to approve Resolution # 2007-40. Roll Call Vote: Councilors Chapman, Navickas, Hartzell,
5. Should the Council finalize the last step of including within the Ashland City Limits approximately 8.4-acres of industrial and employment zoned land, by approving first reading of an ordinance formally annexing the property and withdrawing the property from Jackson County Fire District No. 5?
Community Development Director Bill Molnar stated there was a condition, as part of the previous proposal to annex the property, addressing the fact that a substantial street improvement is necessary and there must be assurance that the street improvements would occur. Upon receiving this assurance, the design has been completed and the street improvements will be paid for through a combination of grant funds and the applicant’s funds. Staff’s recommendation is to pass first reading and move it to second reading.
Mr. Appicello noted the annexation and the withdrawal of the fire district are subjects of advertised public hearings which have already occurred.
Councilors Jackson/Silbiger m/s to approve first reading of an ordinance and place on agenda for second reading. Roll Call Vote: Councilors Hartzell,
6. Does the Council wish to adopt an ordinance amending the
Councilors Jackson/Hartzell m/s to extend the meeting to 10:30 p.m. Voice vote: all AYES. Motion passed.
Management Analyst Ann Seltzer distributed an e-mail to the Council addressing the issues raised during the Study Session concerning this item.
Councilor Silbiger read aloud the section stating, “Councilors are required to submit annual statements of economic interest to the Government Standards and Practices Board.” He noted changes in law require quarterly statements and also that the name of the Government Standards and Practices Board has changed. He suggesting simplifying the section to read, “Councilors are required to submit statements as required by
Mayor Morrison noted a change concerning the use of his address as opposed to the “State of the City” address and asked that it be changed.
Councilor Hardesty motioned to add suggested language for Section 2.04.080, Section C to read: “Individual councilors should respect the separation between policy-making and administration. They shall not pressure or direct City employees in a way that could contravene the will of the Council as a whole. They must not interfere with work performance, undermine the authority of supervisors or prevent the full council from having access to relevant information. Notwithstanding this pragraph, nothing shall hamper the Council’s ability to evaluate the performance of the City Administrator or the City Attorney.” Motion withdrawn to allow for public input regarding the proposed ordinance.
Ralph Temple/150 Myer Creek Rd./In subsection C, he asked the Council to consider not using the word “influence” in the sentence that reads, “…prohibiting individual councilors from trying to influence department heads or City staff…” He stated that he perceives the word “influence” to be “advocacy.” There is a huge difference between the word “influence,” which is legitimate, and “undue influence,” which takes the form of bribery, threats, etc. He urged the Council to advocate and pursuade on the citizens’ behalf and added they should not block representational influence. He also urged the Council to take out the words “barring criticism,” as criticism is a form of communication and should be allowed.
Councilor Hardesty stated that ultimately what the Council wants to prevent is coersion, harrassment, bullying, pressure, intimidation and contravening the will of the Council as a whole. She noted individual councilors can gain quite a bit by talking to staff members.
Councilors Hardesty/Navickas m/s to add suggested language for Section 2.04.080, C to read: “Individual councilors should respect the separation between policy-making and administration. They shall not pressure or direct City employees in a way that could contravene the will of the Council as a whole. They must not interfere with work performance, undermine the authority of supervisors or prevent the full Council from having access to relevant information. Notwithstanding this pragraph, nothing shall hamper the Council’s ability to evaluate the performance of the City Administrator or the City Attorney.”
DISCUSSION: Councilor Hartzell questioned how the second sentence may be perceived, and added the intent is that councilors should not pressure city employees, “period.” She added the rest of the sentence is a good idea, but noted it might be a separate idea.
Mayor Morrison voiced his support for Councilor Hardesty’s suggested language and noted “influencing” is not always negative. The important thing is to avoid behavior that is contrary to the relationship and separation that needs to exist, and also recognize that there is an existing partnership.
Councilor Chapman noted Mr. Temples comments and that he perfectly described what the problem is, that influence is perceived as pursuasion, and that is exactly what the Council does not want to have. Persuasion and influence should be used in public rather than one-on-one with a department head, and added he is more convinced than ever that this language should stay in the ordinance.
Councilor Silbiger noted examples where the Council has lobbied in private, and stated he would like to hear staff’s opinions concerning this issue. He feels the word “influence” is appropriate and supports the ordinance the way it is.
Councilor Navickas stated that the changes Councilor Hardesty has proposed is a good compromise and agrees that councilors should not be working independently to coerce staff. He does not feel staff carries out enough outreach and training with councilors and suggested this change. Councilors should not be restricted from having discussion with staff and staff should be trained not to take direction from just one councilor.
Councilor Jackson stated that she likes the word “influence” in the ordinance and questioned if Mr. Appicello thought the proposed re-wording accomplishes the same thing or is there a legal interpretation associated with “influence” related to coersion. Mr. Appicello stated he is not uncomfortable with language in Section C as it was written. He noted Mr. Temple’s comments contravenes the constitution if it serves as a restriction on First Amendment rights. He explained that councilors are public officers and need to be in the positions they are in to have access to staff members. He suggested adding the language, “nothing in this ordinance is intended to prohibit a public official from exercising their First Amendment rights with regard to communications with staff.” He noted councilors will balance this against criminal statutes of official misconduct. He suggested changing the language to include “contravening the will of the council” or “limiting the options of the Council,” because the kinds of unwanted communication between staff are those that constrain the options that are presented to the Council. He provided examples of such coersion and suggested including a disclaimer that states the Council is not intending to damage a person’s free exercise of their right to freedom of expression and speech.
Councilor Hartzell commented that the State does govern some of the bad examples that were noted in discussion and that the Council is proposing to put the word “influence” into a law without first defining which part of its definition the Council needs or wants.
Councilors Hardesty/Navickas m/s to amend the motion to include the words “or limit the options of the Council” at the end of the second sentence. Roll Call Vote: Councilors Hardesty, Navickas and Hartzell, YES. Councilors Silbiger, Jackson and Chapman, NO. Mayor Morrison, YES. Motion passed, 4-3.
Roll call vote on the amended motion: Councilors Hardesty, Navickas and Hartzell, YES. Councilors Chapman, Silbiger and Jackson, NO. Mayor Morrison, YES. Motion passed, 4-3.
Councilor Navickas motioned to include the changes that were suggested in the e-mail from Ms. Seltzer. Motion failed due to lack of a second.
OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL LIAISONS
Item not addressed due to time constraints.
Meeting was adjourned at 10:30 p.m.
John W. Morrison, Mayor