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HomeMy WebLinkAbout05122003CITY OF PORT TOWNSEND MINUTES OF THE STUDY SESSION OF MAY 12, 2003 The City Council of the City of Port Townsend met in regular session this twelfth day of May, 2003, at 6:30 p.m. in the Port Townsend Council Chambers of City Hall, Mayor Kees Kolff presiding. CALL TO ORDER AND PLEDGE OF ALLEGIANCE The meeting was called to order at 6:30 by Mayor Kees Kolff. Council members present at roll call were Freida Fenn, Joe Finnie, Kees Kolff, Catharine Robinson, Michelle Sandoval and Alan Youse. Geoff Masci was excused. Staff members present were City Manager David Timmons, City Attorney John Watts, and City Clerk Pam Kolacy. CODE OF ETHICS Mr. Watts noted that on March 17, the Council reviewed draft revisions to the procedural provisions of the Ethics code, including changes which would replace the ad hoc three member citizen board with a professional hearings officer. This change was recommended by the General Government Committee. The Committee also recommended that staff contact an appropriate person to review the procedural changes to the code. Retired Superior Court Judge Bill Howard agreed to do this. His comments have been included in the council packet. Mr. Watts presented a line in and out version showing proposed changes to the ordinance. If the Council desires to revise the Ethics code to provide for a Hearings Officer, that person could be appointed by mid-June and may be requested with suggesting further procedural and substantive changes to the ordinance. This would be considered "Phase 2" of the process and would come after initial adoption of revisions to the ordinance. The following policy issues were discussed by the council. Mayor Kolff asked the Council for direction on each issue raised. 1. Role of City Attorney (p, 11, "City Attorney Review) Discussion: Mr. Watts noted that an absolute rule against involvement "hamstrings" the City Attorney and creates an overly inflexible situation. Mr. Timmons stated, however, that it is not fair to put the City Attorney in the position of being an advisor to the public in terms of possible filing of ethics violations. Clarification was made that the City Attorney represents the city and not any individual council or staff member, in a fashion similar to that of a corporate counsel. Mr. Timmons noted that if an alleged violation involves the City Manager of a Council member it puts the City Attorney in a compromising situation where he might give an City Council Workshop Meeting Page 1 May 12, 2003 opinion against a Council member; when the complaint is filed, there may be the appearance of "serving two masters." The general sense of the council was that the City Attorney should have some ability to be involved in the process. Direction: Mr. Watts and Mr. Timmons will discuss and propose language which allows some flexibility for the City Attorney to be involved in the process. 2. Appeal of Hearings Officer Determination (p. 16) The question was raised whether an altemative appeal could be provided to some other body than the City Council. Mr. Watts stated that might be possible; however Superior Court does not have to deal with this sort of matter and may not agree to hear appeals. He stated he could research and propose some options either by next week or during Phase 2 with the assistance of the Hearings Officer. Direction: City Attorney will bring alternatives for consideration; Council may decide to include a change at this time, or adopt code with provision of appeal to the City Council and reconsider the issue in Phase 2. 3. Can the appeal body increase the sanction imposed by the ethics board/hearing officer? Judge Howard commented on the provision in the code that limits the Council on an appeal from increasing a penalty. Direction: no change recommended at this time. 4. Appropriate burden of proof (p. 17(d)) Mr. Watts noted that there are three standards for burden of proof: preponderance of evidence, which is the lowest standard of proof and is typical in most civil cases; "clear and convincing" evidence; and "beyond a reasonable doubt" which is the highest standard and is applied in criminal cases. Direction: Retain the standard of preponderance of evidence. 5) Application of Code to appointed officials. Mr. Watts stated that the Code currently applies to all elected officials, City Manager, and all advisory board members. There was discUssion about whether all advisory bodies should be included, or limit application to advisory boards that have quasi-judicial functions. This would limit applicability to appointed officials to the Planning Commission and the Civil Service Commission. City Council Workshop Meeting Page 2 May 12, 2003 Direction: Ethics Code should apply only to City Council, City Manager, City Attorney, elected officials (City Council), and members of the Planning Commission and Civil Service Commission. Application should be the same for Manager and Attorney. 6. Statute of limitation - time frames. Direction: Retain the current three year statute of limitation. 7. Application of fees and recovery of costs Discussion of fees included how to determine the appropriate cost of initiating an ethics complaint as well as whether or not the ordinance should deal with recovery of costs in certain situations, for example to deter frivolous complaints. The possibility of a fine after the process if a complaint is found to be malicious was also offered. Direction: designate the application of fees and cost recovery as a Phase 2 issue. 8. Heatings Officer vs. Ethics Board Discussion confirmed the consensus to replace the ad hoc citizen Ethics board with a professional Hearings Officer. Direction: replace the ad hoc citizen Ethics board with a professional Hearings Officer. 9. Extent of Disclosure expected - more than state law? Direction contained under (11.) which follows. 10. Appeal by party who files the complaint. Code provides that the party who is complained against has a right of appeal, but the party filing the complaint does not. In a normal civil suit, either side can appeal, because either side may be injured by the outcome. In an ethics complaint, there is really only one potentially "injured party." Direction: do not expand the Code to allow appeal by the party filing the complaint. 11. Is a local Ethics Code needed in light of the provisions which already exist in state law. Mr. Watts discussed the provisions of the state law (RCW 42.23) regarding ethics violations. He noted that the state statute deals mostly with "contract interests" and what types of contracts councilors serving the city can be engaged in while holding office. He stated that most city ethics codes deal with activities which are not addressed or not clear in state law. These include conflict of interest, acceptance of gifts, misuse of official position, and misuse of confidential information. Mr. Watts said that his opinion City Council Workshop Meeting Page 3 May 12, 2003 is that a local code makes sense in that it sets forth guidelines for local officials and employees in situation that are not clear in state law. For example, state law could be interpreted as providing a standard which would make receiving a cup of coffee an ethical violation; therefore many cities carve out a "de minimus" rule for gifts. Confidential information is another area where the state is not clear and is addressed in the current ethics code (page 9). Mr. Watts added that a city ethics code is a good single point of reference rather than directing people to the state law which can be confusing. The Code also provides for a local procedure to deal with ethics complaints. Ms. Fenn suggested distributing Attorney Craig Ritchie's letter to the Ethics Board containing his analysis of disclosure issues to the council for information. Councilors also requested a copy of the state ethics statute. Direction: City Ethics Code is necessary to include and clarify items which are not included or vague in the state statute. Current code needs modifications including changes to the paragraph at the top of page 5 regarding disclosure as advised by the Ethics Board after their deliberations. This could be done during Phase 2 with the assistance of the Hearings Officer. Mr. Timmons noted that if a Hearings Officer decision resulted in a job action (for example, Council decided to discipline or terminate City Manager) that would ultimately be decided by the appointing authority. In that case, the Hearing Officer would be the fact finder reporting to the City Council and then the council would determine the final action. Proposed revisions will be presented at the next council meeting on May 19. Mayor Kolff estimated that Phase 2 will be underway once requested information has been provided and a Hearings Officer has been retained. At that time the issue will probably be sent back to the General Government Committee for recommendation. COUNCIL PRIORITIES/RETREAT Other major issues which will be coming this year include WRIA 17, which will result in major decisions regarding the water system, and the issues surrounding Point Hudson. A workshop or joint meeting will be scheduled to address each of these topics. SHORELINES ADVISORY GROUP Mayor Kolff announced that the first meeting of the new Shorelines Advisory Group will be held May 15. The Council appointment will be made on the 19th, but that person may City Council Workshop Meeting Page 4 May 12, 2003 want to attend the initial meeting. Ms. Sandoval volunteered to be the Council representative to the group. ADJOURN There being no further business, the meeting was adjourned at 8:35 p.m. Attest: Pamela Kolacy, CMC City Clerk City Council Workshop Meeting Page 5 May 12, 2003