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HomeMy WebLinkAbout2004-05-19 Special Minutes - City Council and Planning Commission Joint WorkshopCALL TO ORDER: Calling the workshop to order at 5:49 p.m. was Mayor Steven M. Mullet. COUNCIL ATTENDANCE: Present were Council President Jim Haggerton; and Councilmembers Joe Duffie, Joan Hernandez, Pam Carter, Pamela Linder, Dennis Robertson and Dave Fenton. PLANNING COMMISSION: Present were George Malina, Chair of the Planning Commission; and Commissioners Kirsten Whistler and Margaret Bratcher. OFFICIALS: Steven M. Mullet, Mayor; Rhonda Berry, City Administrator; Lucy Lauterbach, Legislative Analyst; Steve Lancaster, Director of Community Development; Jack Pace, Deputy Director of Community Development; Bob Baker, Deputy City Clerk; and Shelley Kerslake, City Attorney. WORKSHOP ISSUES: a. Ethics TUKWILA CITY COUNCIL May 19, 2004 Tukwila City Hall Council Chambers JOINT CITY COUNCIL /PLANNING COMMISSION WORKSHOP Shelley Kerslake. City Attorney, led a question and answer overview and highlighted portions of the newly proposed City of Tukwila Code of Ethics. The City's current Ethics Policy, adopted in 1993, addresses City staff and administration. If adopted by the City Council, the newly proposed ordinance would be codified into the Tukwila Municipal Code and would apply to City Administration, current and former employees, Council and all City of Tukwila Boards and Commission members. Modeled after the State's Code of Ethics, contained in the Revised Code of Washington, hereinafter referred to as "RCW" 42.30.070, the newly proposed ordinance contains four basic elements including: 1. No municipal officer may use their position to secure special privileges or exemptions for themselves or others. 2. No municipal officer may directly or indirectly give or receive any compensation, gift, gratuity or reward from any source, except the employing municipality, for a matter connected with or related to the officer's services unless otherwise provided by law. 3. No municipal officer may accept employment or engage in business that the officer might reasonably expect would require him or her to disclose confidential information acquired by reason of their position. 4. No municipal officer may disclose confidential information gained by reason of the officer's position, nor may the officer use such information for personal gain. The last provision is significant as it potentially applies to disclosure of information learned by reason of attendance to an executive session. Finally, the proposed Ethics Code attempts to incorporate all elements of the State statute and to provide for an enforcement mechanism; i.e., a complaint process and penalties for violations and non- compliance. City of Tukwila Joint City Council /Planning Commission Workshop Minutes For future Council consideration, Ms. Kerslake quoted from the newly proposed ordinance which (in part) states, "For a period of one year after leaving City service, and for any matter in which you personally and substantially participated, you cannot assist any person in matters involving the City, represent any person as an advocate or participate as or with a bidder, vendor or consultant in any competitive selection process for a City contract." Attendees suggested an increased amount may be required in the provision which states "any gift valued at $50.00 or less, which cannot reasonably be presumed to influence your vote, action or judgment." Ms. Kerslake agreed to work on that with Council should the issue arise when discussion on the matter occurs. Before closing the session, Ms. Kerslake presented several case study scenarios and asked whether or not the issues presented would result in violations to the Code of Ethics. b. Ooen Public Meetings Act Page 2 of 3 May 19, 2004 Shelley Kerslake, City Attorney, led workshop participants on a review and discussion of the Open Public Meetings Act as found at RCW 42.30. Highlighting various portions of the Act, Ms. Kerslake pointed out the purpose is to provide for action and deliberations of governing bodies to be taken openly and publicly. A governing body is defined as the "...board, commission, committee, council or other policy or rule- making body of a public agency, or any committee thereof, when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment." The word "action" as defined in the RCW, means "the transaction of the official business of a public agency by a governing body." And "final action" means "a collective positive or negative decision or an actual vote by a majority of the members of the body when sitting as a body or an entity, upon a motion, proposal, resolution, order or ordinance." Procedures for conducting executive sessions were raised and discussed. Ms. Kerslake informed attendees that before convening an executive session, the presiding officer (Chair, Council President or Mayor) must publicly announce the purpose for excluding the public from the session and the place and time when it will be concluded. She also pointed out that an executive session may be extended to a stated later time by an announcement of the presiding officer. Of importance to all is the fact that (recently) the Ninth Circuit Court of Appeals (affecting Washington State) has ruled that e-mails between council and commission members have implications relative to the Act. If discussing city business with fellow council members or commission members via e-mail, it can constitute a meeting and the requirements for a public meeting would have to be met, or a violation will have occurred. For those reasons, Ms. Kerslake cautioned the Council and Commission members regarding the implications of sending e-mails and asking for information and /or opinions in return, not to mention the possibility of forwarding the e-mail to others on the Council and /or Commission. Again, violations of the Act carry penalties such as: 1. No ordinances, resolutions, policies and /or rules shall be adopted except in an open, public meeting. Any action taken at meetings failing to comply shall be found to be null and void. 2. Any secret ballot vote taken at any meeting required to be open shall also be found to be null and void. 3. Each member of the board, commission or committee who attends a meeting held in violation of the Act, with knowledge of the fact it is indeed in violation, is subject to a personal liability, resulting in a civil penalty with a maximum fine of $1,000.00. 4. Anyone bringing enforcement requests forward (and is victorious in the request) may be entitled to attorney's fees. If the court finds the suit is brought about for frivolous City of Tukwila Joint City Council /Planning Commission Workshop Minutes c. Ar nearance of Fairness Doctrine ADJOURNMENT: The meeting adjourned at 8:22 p.m. 4.4-)c L Robert H. Baker, CMC, Deputy City Clerk Page 3 of 3 May 19, 2004 reasons, however, it may award attorney's fees to the represented entity (City or County). Before closing the session, Ms. Kerslake presented several case study scenarios and asked whether or not the issues presented would result in violations to the Open Public Meetings Act. The final issue presented by the City's Attorney was the Appearance of Fairness Doctrine. In 1982, the Washington State Legislature reacted to the proliferation of appearance of fairness cases involving land use hearings by enacting what is now RCW Chapter 42.36. This chapter defines and codifies the doctrine as it relates to local land use decisions. In substance, those statutes provide that in land use hearings: 1. The Doctrine applies only to quasi judicial actions of local, decision making bodies. 2. The Doctrine does not apply to local "Legislative actions" adopting, amending or revising comprehensive, community or neighborhood plans or other land use planning documents or the adoption of area -wide zoning ordinances or the adoption of a zoning amendment that is of area -wide significance. 3. Candidates for public office may express their opinions about pending or proposed quasi-judicial actions while campaigning, without being disqualified from participating in deciding those matters if they are later elected. 4. Acceptance of campaign contributions by candidates who comply with the public disclosure (financial) and ethics law will not later be in violation of the Doctrine. For everyone present, Ms. Kerslake provided the definition of quasi judicial as, "those actions of the legislative body, planning commission, hearing examiner, zoning adjuster, board of adjustment or boards which determine the legal rights, duties or privileges of specific parties in a hearing or other contested case." The City Attorney stated the guiding principle that quasi judicial hearings involving land use matters must be fair in fact and appearance to be fair. She went on to say that a challenger of the Doctrine only needs to show an interest that might have influenced a member of the decision making body and not that it actually affected the member. Statutory exemptions from the Doctrine and Ex Parte contact were then reviewed. Challenges to the Doctrine (found at RCW 42.36.080) must be raised as soon as the basis for disqualification is made known to the individual. In summary, Ms. Kerslake made known the fact that the remedy for a violation is invalidation of action. Remedial actions when a challenge is made include stepping down for the discussion and voting on the item. The Council or Board member who has the conflict must physically leave the room to avoid further appearances of impropriety (i.e., hand and /or eye gestures /signals). Preventative practices and the conduct of hearings were discussed before considering case study scenarios to determine those instances where actions taken may constitute violations of the Doctrine.