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