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HomeMy WebLinkAbout07/28/2009 00 Draft Minutes 07-28-2009 Special Meeting / Study SessionYAKIMA CITY COUNCIL SPECIAL MEETING — STUDY SESSION JULY 28, 2009 8:00 — 9:30 A.M. COUNCIL CHAMBERS Roll Call Present: Council: Mayor Dave Edler, presiding, Assistant Mayor Micah Cawley, Council Members Maureen Adkison, Kathy Coffey, Rick Ensey, Bill Lover, and Sonia Rodriguez Staff: City Manager Zais, City Clerk Moore 2. Draft Code of Ethics Council Member Rodriguez introduced Jim Mitchell, Assistant City Attorney. There are versions of code of ethics for about 200 years. In the last 20 years increased focus on ethical concerns and codes of conduct. Resulted in quite a bit of legislation for public officials. In Washington State numerous municipalities have adopted their own versions. Some are merely inspiration, e.g. 1958 code of ethics adopted by the House, and then more structured codes that have more of a checklist of things you can and can't do advancing ideals of what we can and cannot do in public service. We've taken some of those in Washington State, probably over half of Washington cities over 5,000 people have some type of code. We put together some of them for ideas for our Council. In your packet we have the simple one form 1958, one from Federal Way which is also fairly simple and then one from Richland that is more complex, and then one that is fairly comprehensive. MC — you mention there was lots of litigation that was done on this did you mean there were more lawsuits spawned from cities that had a code of ethics? JM no, there were things that happened that help cause putting a code of ethics forward. Some municipalities even criminalize violating codes by making them a misdemeanor.. MC — there was a part about ethics committee, is this an example or one that is specific to us. JM there are different ways to do the committees, the typical committee is 3 -5 -7 people, we threw out 5 because of the size of our community. As far as the make -up of the committee, once again, some things we initiated some we took from other models. MC — typically could the city attorney's office do the investigation like I had done for me earlier. Could that be a possibility? JM it's doable, but it depends on what you want. Public perception is important. In a smaller community that is probably easier than in the larger cities. Fact finding /advisory position. We could make it work, but we may be a larger municipality to make that a real viable. Have to spend time chasing possible red herrings. SR — if you use the city attorney isn't that a conflict of interest. JM that's what was alluding to, especially with public perception. SR and to maintain the best perception of fairness, it's non -bias and that's why you suggest a separate committee. JM exactly. JM — this is kind of unique to other versions, this proposal would utilize suggested use of a couple former elected officials recommended by AWC, someone who has been there done that and knows the lay of the land, and then supplemented by people from educational professions, business people, for profit, non - profit, substantial experience in HR. Form a body that carries a lot of credibility. It could be random draw like a jury pool but there would be some risks to that. SR if there was a complaint how would that be handled and what would be possible outcomes. JM the committee will have to be charged with coming up with their own protocol. It could be simple getting together for quick fact finding, deciding whether they have jurisdiction, does it fall within the purview of any potential or suspected violations to begin with. Then come up with whether there's a preponderance. If you want it to be a sanctioning body they could theoretically come up with a sanction. We created a list of potential sanctions, then that could be presented to the appropriate authority. RE — on Richland's ethics, did you talk to them? JM — no. RE just curious as to why the criminalization. JM I did talk to other municipalities. Some have a mixture where they criminalize some things and not others. I have to speculate from Richland, it really is for public perception showing they're going to give it some weight. I don't think they've ever used it but it's there. Some of the ordinance you, read talk about subpoena power, that does not exist, bodies do not have subpoena power. RZ — back to SR's earlier question. There are some applications of the findings and conclusions depending on empowerment you give committee, they would refer findings to the appropriate body that has jurisdictional authority, might be the city manager who has authority over an employee. We may have already started a process. It may be referred to a state auditor, state attorney general's office. There are many options depending on the issue. More commonly than not it's a misunderstanding of what the rules are. But still if you want accountability there has to be referral somewhere if findings are proven to have some merit. When we talked about this we tried to discuss that about what those referrals might be and how far you take that. I h ve a duty to investigate issues that arise with respect to city employees. If it involved me, you could take it on as my bosses or ask for an outside agency to do an investigation or this committee. Keep in mind many times when there is an investigation pending you will have employees, managers or others who will retain legal councils to represent them to make sure their rights are protected. Whoever is in the fact finding /advisory role to the governing body would have to be aware of that. That's part of the issue of having some expertise on the committee itself. It does not have to be a lawyer but you do need some expertise in that manner. MC you mentioned a city employee that this committee could investigate a city employee. RZ — yes, it depends on how far you want to take this. There are examples that are just for the governing body, governing body and all exempt employees, or further to all employees and boards and commissions. If it was your intent to have it represent employees under unions then it would have to be negotiated. But they also are not exempt to the current rules and laws that we are under today. KC — it does state city officer or employees, so it does include employees. In reading it, what is here that isn't in the employee manual and others that is already prohibited and the city charter. RZ city charter has some prohibitions, KC has this been compared against the city employee manual and charter? What is this doing that isn't already being done? JM — a good point, obviously RCWs cover conflicts. This is a thorough concise reiteration. The city charter is only a paragraph that says thou shalt bee a good person and not do this stuff. That's been flushed out. This expands upon this. There are things that aren't in there, like undue influence, like re- employment after leaving. There are things on the periphery that do exist. This combines..KC wants to see the comparison with the employee manual. We have to be careful to not put another layer of buracracy andnot have to put money into it. BL — I ditto coffey on that. The rcws that exist already cover conflicts of interest, etc. there are fines and removal of office. I would like to see how much duplication is in this with the RCWs. If there are only a few things added maybe we syould go to a different approach. Please explain how it would work without a committee. JM — there have been from council, there have beebn memos in the past that have asked for more information that are already in the rcws, this is a way to make it concise. There are two other ways, the less common is a single hearing examiner tohear complaints. Usually done in smaller municipalities. The other version is for the Council to be self - policing. In this type of environment with a large city council you see that there could be some issues there with regard to public perception. That could be a severe detriment because you are in a no -win situation. No matter what happens. If you had potential allegations against certain council person(s), they would have to recuse themselves and that could set up a battle in the pit. MA — question for Council, do we know why we're doing this? We've read through this, a lot of it is common sense. KC — 800 lb gorilla — the opens act meeting that comes up. MA I don't see it covered, KC exactly, I'm concerned with is what happened with that situation. I wasn't even aware that the ruling that got all the publicity I didn't even know we were doing anything wrong. We keep layering on more things and you just can't move hardly because of all the rules and sanctions. I don't know why — what are we doing? MC don't miss the public perception part, ifyou vote against the code of ethics. KC interrupted him, I think we are trying to have a discussion, we should be concerned with public perception with what we are doing, not how we are voting. Public needs to understand what ew are doing. SR we' are increasing trust. We are public officials that should have integrity. KC interrupted — I think we have integrity. SR — that needs to be shown to the public. KC if we have these layers of rules and regulations that can be soeasily stepped over if you don't understand them, then that doesn't help the trust. We need to be sure we don't have so many that we can inadvertently step over them. Like the open public meetings act. I don't think there was anyone around this table that knew we were breaking some law. I don't think even our attorneys did. BL a disturbing word is perception. I can see where perception rules over the facts. Serious allegations will outweigh the facts and I find that disturbing. I'd like to see a definition of ethics too. PCR None of these have tried to identify it. I looked it up in the dictionary and there are six definitions, from a system of moral principals to rules of conduct recognized for a particular class, group or culture. SR look on page where he identifies a purpose, that's what our intent is that is defined. KC I don't have a problem with adopting a code of ethics but I want to be sure we adopt it for the right reason. I want to make sure we are not doing it just to make the public comfortable, that we're doing it because we believe it. That we embrace it. That's when you build trust with the public. You don't do it just to make them comfortable, that's not the way it works. SR I do believe in it. I think this can be cut down, I agree it shouldn't cover more than it needs to. I think we should take employees out of it and have it only apply to public officials since there are other coverages. But I think there does need something. This is just giving us options. DE — back to MA's question. I do believe it needs to be council but like the addition of appointed boards and commissions to give us leverage if we should make a poor choice in a selection of a board member. Why are we here, it has been mentioned public perception, public trust, MA — I don't oppose an ethics piece, but I still am not clear, all of these are basically the same and I think they are all very common sense, the way most of us lead our lives but we were brought here I thought, the one piece that is not in here is the reason this came up. De that's what I want to talk about. This was before your time, tensions were pretty high on this council, we had a retreat in which we determined that we needed to have the retreat so we could move the city forward and work together and that retreat from my perspective was almost a waste of time in that all of the agreements that were made, the things we talked about how we were going to conduct ourselves were in essence blown out the window in a week. It's not the open meetings act I am fired up about, it's a lack of trust, from my perspective there is also a lack of accountability that we can just conduct ourselves anyway we want to and not be held accountable for the things we say. As I look at these in the purpose statement, "shall maintain the utmost standard of .....in carrying out their public duties, and yet there is nothing about that. In Richland says council will not make false statements. If this is truly the way we want to go, I'm looking for a tool that will create accountability that will begin to build the public trust. I think its interesting as I spoke to chamber of commerce and brought up this code of ethics, that group began to applaud. The idea that our community doesn't recognize there's a battle going on around this horseshoe that we need some answers to, this is a very important piece that needs to be implemented. MA — I don't disagree with that, if we want it in writing we should get it in writing. I would like to suggest though, I'd like to see us adopt something more along the lines of Federal Way, it's simpler, clear cut not hard to read. We could modify it to our own needs to include the things we'd like incorporated into our city ethics. DE — the idea on page 5 of Richland one, the council members should not make false statements, accountability for words spoken is a key component for me. If we want to move forward with the idea of building a code of ethics, lets do so, if not, I would entertain a motion to stop these proceedings. MC — what do we already have on the books that covers a lot of this stuff? There must be some sort of documentation as a city now. JM we have some in the charter, it is really generic. You might think it is common sense, we codify thins and put things up like an inspirational list. The RCW's have certain parts of that, but other things are not in there and how you meld that into a procedure and protocol for the city is lacking. They're not pulled in together and that is why cities and counties usually do this. JM it's almost overly comprehensive, this one, but it's easier to take things out. Make it the city's own, make it the Council's. It could be a combination of things. RZ — if you went to page 1, paragraph 1.b. does cite all of the applicable provisions of sate law that are currently in existence and in different places. This code would be supplemental and embrace all of those. If we looked into, in any particular instance, e.g. an issue about gifting or misuse of public equipment, you JM what we did not put in here are the campaign RCWs. RE — if we want to go with Federal Way's or Richland's that's fine by me. There are things on city of Richland's I like. D. A council member must obtain approval of council by motion to represent. E. cited it. We can pick some from each of these. He accused the mayor of holding everything he says against him. I'll just vote no and not tell everyone why I am voting no on issues. Criminalization sounds kind of draconian but in other respects it makes sense. Its one thing to say we can do a reprimand, but if it becomes this perso will have a misdemeanor, it will make people take things more seriously. MC — likes the part about false accusations needs to pay. I MOVE WE KICK IT TO THE RULES AND PROCEDURES COMMITTEE FOR WORK AND BRING IT BACK TO COUNCIL LATER. SR do we all agree it shouldn't cover city employees, BL I don't think you can do that because of something about high city - officials. RZ the terminology used in the statues are = BL argued with him — Let's just make it the same as the RCW (BL) — also the cost come to play in my line. Alaska has so many ethics complaints floating around, away to nullify some of the costs, if you take something on a committee make it similar to something to court if you lose you pay the lawyer fees and pay the costs associated with the/ claim. That would stop the frivolous complaints. If I was to use, in my perception or opinion, would that be a disqualifier for a false statement. SR there's some intent behind that, you intend to do that, not just that you said in my opinion and put forth a false statement. BL there's been a lot of use of the word perception and that should be looked into too, because if I use "in my opinion ". JM — it doesn't give you a waiver to say it just to DE — the burden of proof is high. I have a motion that I can't repeat because it build as it left Mica That we move this to rules and procedures — SR SECONDED. Let's clean up the actual motion? MC I MOVE WE FORWARD THE CODE OF ETHIDS FOR WORK TO THE RULES AND PROCEDURES COMMITTEE AND ALSO INCLUDE THE RCW LANGUAGE FOR EXEMPT BUT ELIMINATING EMPLOYEES. Let's open this up to the audience. What do we expect back? A draft policy. 3. Audience Comments (9:15 a.m. — 9:30 p.m.) Claire Powell 3003 Bonnie Doone, I feel that we should have some type of code of ethics. I would like to see a copy of the RCWs and the City Charter and then see what needs to be added to that, if anything. Responding to Kathy's ethics question, she said that it was their understanding of ethics that should be the driving force. But, the public perception, we don't know what's going on, most of the public doesn't know what goes on behind closed doors and iff there was a code of ethics in place I think the public would feel more comfortable seeing that maybe you can complain to city hall and get some sort of action. I don't like self - policing, that's leaving the fox in charge of the hen house. It appears to be a whitewash because a lot of the facts and rules and regulations overseeing the incident the public doesn't see. A committee of ethics I think should be volunteer. I also think this code of ethics should cover volunteer boards as well. A definition of ethics for this particular instance should be included. Think there should be a plain citizen on the volunteer committee and someone from HR experience and legal experience. Also feel that anyone elected on a council that could be accountable to the public should know what the open government rules are. KC — definition of ethics, I think that should be done by us on what it means for us. Make it our definition. Restated that she thinks it should be our code of ethics that the public can believe in. BL — read a definition he thinks fits: Actions relating to human conduct with respect to rightness and wrongness of certain actions and to goodness and badness to the motives and ends of (actions ?). De we all can see that this can be used in a way that might not be beneficial to the community. One of the things in the draft that was given to us, definitions, codes, the purpose statement very clearly declares what this code of ethics accomplishes from my perspective and that is the definition of what we are buying into. KC — as a mission statement shouldn't be a paragraph long, I think the code of ethics definition should be one or two sentences. The purpose statement is very good and should be incorporated, I think the definition of an ethics code should be brief and succinct. RE — I think we should have plenty of time to look at this, once the committee is done. We need time to peruse it get it right the first time. Mary Place, 5710 Merrilane. Asked after re- examining all of these things, the reason this was done was to bring all the information together so the public sees that you as a board understand your roles and responsi9bilities. I don't want this to become so cumbersome that it is costly and time - consuming. Technically I believe the city manager's job is to deal with codes of conduct for employees. The way I see it and what I've been hearing is the city council is the public face of our community and they want that aface to be dignified and have integrity. Doesn't mean we don't have spiritated debates with differences of opinion but how we treat each other both publicly and privately is very important,. Now vote on the motion: unanimous voice vote. Rules committee — MC, SR BL is the alternate — you may want to think about another alterate to replace bill if he advances to the full MA will be alternate. They all agreed to that. 4. Adjournment to August 4, 2009 at 2:00 p.m. in the Council Chambers for the next Council Business Meeting MC /SR seconded to adjourn at 9:03 a.m. READ AND CERTIFIED ACCURATE BY ATTEST: CITY CLERK COUNCIL MEMBER DATE COUNCIL MEMBER DATE DAVID EDLER, MAYOR Minutes prepared by Linda Watkins. A CD and DVD of this meeting are available in the City Clerk's Office