I was out of town too. I just got in a while ago. I'll call
to order the August 29th, 2016 City Council Special Meeting and ask
those who would like to join the council and myself in the Pledge of Allegiance
to please stand. I pledge allegiance to the flag
of the United States of America and to the republic for which
it stands, one nation under God,
Indivisible, with liberty and justice for all. Following the Pledge of Allegiance is a time
for audience comments. And I would just point out that citizen comments are an important
part of the public process. We take them seriously and factor them into the decisions
that we make. Anyone from the public desiring to comment will have the opportunity to
do so. Please direct your comments to the whole council and not individuals. It is
not a question and answer session. Please come to the lectern when recognized and speak
into the microphone. State your name, address, and any relationship to the city. Limit comments
to five minutes. If you have written comments, please submit those to the city clerk.
I would ask if anyone has signed up to speak this evening. No one has
signed up. Is there anyone in the audience desiring to speak? Yeah.
It's Lynch.
My name is Mary Lynch and I reside at 2690 Northwest Oakcrest Drive, Issaquah, Washington.
And I sent you all an email earlier basically stating my that I
support the agenda bill tonight, which would standardize the time and the place and also
televise the city council committee meetings because it's been a frustration of
mine and a lot of people over the last years that they aren't held at
the same time or televised and with the agendas not being made public early on
or at all and with minutes not being done of a lot of the meetings.
It's really been frustrating to be able to follow key issues that we wanted to
do. Some of the committees have been on task and have done that. Land insurers
has been very good about advance notices on what they're going to talk and then
also details of what's followed. But I do support that bill. That being said, the
main reason I'm here today is to reach out to the public and ask that
you all drive carefully this week. On Thursday will be the first day of
school for the Isquah School District and a lot of the other surrounding schools. And
would ask that everybody please slow down, do the speed limit or lower. get off
the cell phones stop texting turn the radios down and look for children that
are out there there's going to be a lot that's the first time that they
go to school or go to their new schools along second street we've got a
new school opening and there's going to be a lot of confusion there as parents
try and drop off their children and not knowing where they're going to go there's
still a lot of construction going on around the town and with all the through
traffic that's going through I would just ask that people slow down get off their
cell phones please pay attention and parents please talk with your children's about safety how
to safely ride your bikes to school how to cross the streets and to look
both ways and for those that are seen of bus yellow school bus if the
lights are flashing that means to slow down and stop not run and get
by the school bus. A lot of kids are running to the school buses, a
lot of them cross the streets. If you run those yellow lights, you're more than
likely to hit a child. And I would hope that that never happens in my
lifetime here. And so please slow down, stay back from the buses,
know your behavior will have impact on others and they're a lot more likely to
follow so please be safe and let's have a good school year thank you thank
you mary for that public service announcement and for your support of the
council goal update on public engagement
I'd like a brief announcement. Council President Goodman, who is not here right now, will
be joining us later. She has a council-related meeting that
she's attending, but she will be arriving once that meeting wraps up. Moving now to
Agenda Bill 7233, Council Goal Update, Public
Engagement. No other public comments? Oh,
is there any, all I saw was staff. Thank you for
keeping an eye on me, Paul. I appreciate that. But I will say, is there
anyone else in the public desiring to comment this evening? Second call and final call,
public comment is closed. Okay, moving now
to agenda bill 7233. This is an update.
update on the City Council developed a goal title public engagement
a purpose to improve council deliberations through timely public engagement.
Autumn Monahan, assistant to the City Administrator
for the staff presentation and update. Welcome. Thanks. So
tonight I'm here to provide an update on the Council goal which has three separate
projects. The first is to conduct quarterly meetings with Council Committee Chairs and the Communications
Team to discuss communications plans on significant issues. The second is to develop a plan
to better inform Council members on the City's dialogue involving social media. And the third
is to implement technology and operating plans to televise Council Committee meetings. So tonight I'm
here to provide an update on all three of those projects. The first is the
Communications Team will begin a meeting with Council Committee Chairs and Staff Liaisons this fall.
Secondly, we presented to you about our social media efforts earlier in August, and we
talked a bit about how we can best close the loop after we receive that
engagement online. There was one example the outreach received involving Go Issaquah. We overloaded you
guys with a lot of both positive and negative feedback and heard some feedback from
you that you would rather us provide those updates both at those council committee liaison
meetings and also adding some additional language to agenda bills where we can.
And the third is we'll begin televising all council committee meetings live on ICTV channel
21 and the city's Ustream channel starting in October. Meetings would also be posted on
the city's YouTube channel and replayed on ICTV channel 21. There was one question about
whether there'd be an extra cost for us to live stream the council committee meetings.
We're charged through our vendor when we go over more than 100 viewing hours per
month. Typically we've got about 48 hours per month right now of viewing, so I
think we'll be okay. We've gone over three times in the past three years. It
was for streaming salmon days. the Talis Hillside Movement. I have to look back on
what the third one was. So to televise these meetings, staff recommends that we host
all council committee meetings here in council chambers. The room would be set up similar
to a council work session. There's several benefits. One is there's no extra capital costs
for installing new equipment in other rooms such as the Eagle Room. The council chambers
offers the best production quality because we already have a professional AV system installed here.
and all meetings to be hosted in the same location at the same time, which
reduces confusion and enhances customer service for the public. As far as logistical changes, all
council committee meetings would start at 6.30 p.m., which allows us some time for setup
following municipal court. The infrastructure and services and safety committee meetings would have to change
their location here to council chambers, and any special or rescheduled Council committee meetings would
have to take place on a very limited basis, which is contingent on the availability
of the council chambers on the second or fourth Wednesday of the month. So we
won't have as much flexibility. This plan could be implemented starting in October with the
exception of the services safety meeting, which could begin in November. We have budgeted about
$25,000 as part of this goal to help televise council committee meetings. Because
we're finding a cost savings and actually hosting everything here in council chambers, staff proposes
using that money this year instead to buy some wireless microphones. You probably have noticed
the mass amount of labyrinth of wires and setup that's required when we have a
meeting here on the floor and some wireless microphones would really help reduce the staff
time and setup. And if we're moving all council committee meetings here, we're having a
meeting in this room three or four times a week. So it's a heavy burden
for staff. Additional staff time is estimated about $600 per month, which we can cover
this year through the cable TV fund. And then we will also include ongoing staff
costs in the proposed budget for 2017. And finally, there was a question about enhancing
the quality of how our presentations appear on video. There's a few issues to bring
up. One is that Comcast shows ICTV only in standard definition. We do tape
everything in high definition, which you can see on our YouTube channel or when we
stream live, but not through the TV channel. So we can bring that up maybe
with our next franchise agreement with Comcast. This is also a good reminder to remind
staff that when they're building presentations to make sure that you're able to see them
on TV because that's where a lot of, most people are viewing them is via
ICTV or our live stream. So with that I'm here to answer any questions. Are
there questions? Council Member Winterstein. Thank you. Autumn, you just touched
upon the video quality, especially if there's a projection on the screen. So it is
notably pretty poor watching from home. So, but you just dropped
the comment of we can bring that up, our next franchise agreement with Comcast.
Did I hear that correctly? Yes. So talk a little bit more about that. What's
the timing? Is that really our only option? I'll introduce. So I'll introduce Tim Smith
who is our TV coordinator and he can give you a better explanation about franchise
agreements. So we're in the seventh year of a 10-year franchise agreement.
And basically Comcast right now gives us a standard def. I mean, we can make
the ask now if we want to. But it would be part of a negotiation
process. OK. So my observations are it's not a difference between standard and high def.
It's just sometimes look at them and they're very difficult to see. I never really
thought of it as that kind of difference. Are you aware of what I'm, have
you seen that? I know what you're talking about. And sometimes it's the PowerPoint itself.
Sometimes the font is so small, it doesn't really matter what, because we're getting a
direct feed from the system to our AV system and that goes out. So it's
just a direct line. So, okay, so I think, so standard
versus high def, yes, it would be better, but I'm more concerned about just the
quality of what is viewable, whether you're streaming it or someone's watching it
on TV 21. So if there are specifications to which some
type of visual should be built to maximize its rendering quality, then
please let us know what that is. some investigation needs to be done.
Because many times, it's a pretty effective media to be able to communicate complex ideas
and to guide a conversation. If it's not viewable, then then that's not good. So,
I mean, do you have any ideas? Is that possible? Do you think maybe there's
some specifications to resolution in which you build it, font size? It always seems to
me there's some mismatch between what you're expecting and what's being rendered. Yes, there is.
There's font sizes and utilizing larger map pieces instead of trying to to televise a
whole entire map, maybe it's sections. So there's plenty of things, guidelines that we can
create to help guide staff. So we run into that a little bit less. Well,
I would ask then you just maybe look at, because it's not just a matter
of zooming in and creating bigger fonts. It's just the quality of the image is
poor. The lines aren't sharp or anything. So I would say sometimes it can be
very, very difficult. So I would really appreciate, because I think that's a very effective
thing. And now that all our committee meetings, by the way, this is definitely something
that council wanted to do. and improving engagement is just one of multiple steps that
we're trying to do. And so, yeah, being able to make the most of that
media would be very important. Other questions? Council
member? Council member Polley. Thank you. It's for Tim as well. Paul, when you're talking,
I'm thinking of the setup that they have in the PSRC meeting room downtown where
they use large monitors instead of projection screens and then they capture the video of
the monitor versus a projection screen. That was kind of where I was wondering if
it was headed, if there was equipment or something that we could do so that
we're not showing it on the old style projection screen. Right. Well, the feed
that you're getting in here is not affected by the feed. They're sent the same
resolution. So if you don't see it up here, it's the presentation. It's not
the projector. So what you're seeing on video is not this camera recording what you
see on this screen. There's a direct feed. We're getting a direct feed, yeah. It's
a direct input. Thanks. Other questions or comments? Seeing none then. Autumn?
tim thank you very much we'll now move to uh agenda bill 7237
public officials training uh the open
these august 29th meetings are hard they're hard oh there's the motion to authorize
actually fred i'm sorry mr mayor i have one more question that's okay i didn't
realize that we were going all the way to the end right away. Autumn, I
had emailed a question this afternoon too. You'd sent out a second email with a
table in it that talked about social media. Was that supposed to be a part
of today's presentation or just additional information? It's additional information that recapped the questions we
heard from Council Committee earlier, or from the work session earlier this month, and I'm
working on the rest of those numbers for you. Okay, thanks. Awesome. Thank you, Mr.
Mayor. I have a question. And this is, it's not really clear to me because
the recommended motion that was included with the bill was just keep on keeping on.
There's not a specific ask. It was, or, so I'm, what is it, what
legislative action is required as part of this bill? Who
authorized us to proceed with the engagement plan that was submitted. to televise
council committee meetings.
Beginning
in October to have those meetings all begin
at the same time and to have those in the
council chambers with a set up similar to Council work
sessions. Yeah, so thank you. Maybe should have been more clear. I mean obviously there
was those kind of logistical details But I believe we had already appropriated the
money for it. So this is not an appropriation It's not an appropriate. This is
just logistics and make the change logistics. Okay. I just want to make sure everybody's
clear about that because even It kind of says expenditure
required and budgeted but there's really not an ask and because we already appropriated it
in the 2016 budget. Okay. It's not anything additional. Okay. All right. Well,
it's kind of, if I may then, I would actually move to authorize and proceed
with the public engagement plan, the details of which were presented this evening and existed
within the agenda bill as presented. Second. Second. Moved and seconded. Questions or discussion?
Seeing none then, all those in favor of authorizing the administration to proceed with the
public engagement plan as cemented and outlined in the agenda bill signify
by saying aye. Aye. Those opposed, that carries unanimously.
I'm gonna look and see if there's an action for the next one. Okay, our
next item, agenda bill 7237.
public officials training. The Open Government Trainings Act was enacted by the
state of Washington in 2014 to improve trust in government and help prevent
costly lawsuits by requiring local agency staff and elected officials
take certain required training. Specifically, the act requires periodic training
on the Open Public Meetings Act and the Public Records
Act. Tonight's presentation is sponsored by
the City's Risk Management and Self-Insurance Pool, the Washington City's Insurance
Authority, whose mission is to take a leadership role to provide professional
risk management and stable risk financing programs that respond to
customer needs. So with that, Tonight's presentation will
be by attorney Mike Conley from
WCIA. And are you gonna kick it off, Mary Lorna? Yes. Thank you.
So hi, I'm Mary Lorna Mead, the risk management officer of the city of Issaquah.
Just gonna introduce Mike. Mike Conley has been practicing law since 1991.
He's a graduate of Gonzaga University School of Law in 1981. He has
his practice covers all aspects of municipal law. He's had over 10 years experience as
the city attorney for the city of Spokane and Spokane Valley and 19 years experience
in private practice representing municipal organizations. He lectures extensively and provides training on the
regulation of land and land use and development, the review and revision of development codes,
public record retention and disclosure, all aspects of governmental operations including compliance with ethics
rules and the Oakland Public Meeting Act. Mike is also an adjunct professor at the
Gonzaga Law School teaching trial advocacy and administrative law and is the recipient of the
Outstanding Service Award from the Washington State Attorney of Municipal Attorneys. He's also
served as the Washington State Executive Ethics Board Chair and Member in 2008 to 2010,
Washington State Public Disclosure Commission Chair and Member 2001 to 2006, and the
Hearing Examiner for City of Airway Heights in Washington from 1995 to 2000. So he's
very well versed in everything we'll have him help explain to us tonight. So Mike,
welcome. Thank you, Mary Lorna. And Mike, welcome.
certainly very fortunate this evening to have someone with your background and experience talk about
this important topic well thank you um
first thing i have to do is um set up for slideshow is there a
mouse there we are okay
okay let me just make sure this advances
Okay, I think I've got it. Okay, okay, technical stuff has been
handled. I appreciate being here when we were doing
the flag salute. My thoughts initially went to how many different cities in
Washington that I have sat at the beginning of council meetings and done that very
same thing. And I think it's probably 20 or 30 now, but it's, You
know, it's a tribute to local government and the importance of
local governmental bodies like this council. You know, it's a very
sometimes difficult and frustrating process, but it's also
the process that has the biggest impact on people's lives. You know, we get to
the state and the federal level and they may have an impact, but it's not
near as direct as the impact that you have. And as elected officials, you're given
substantial powers. You've got the power to tax. You can take people's money.
You can restrict the use of land. You can prohibit uses of land.
You can create and impose design guidelines. You can preserve historical buildings.
You can provide services, or not provide services. And you can really set
the tone and the character of your city. I mean, that's all
within your power. And because you're granted powers to interfere with
a person's property and liberty,
the law also requires that you exercise that power
According to some pretty specific rules and procedures So on the one hand it gives
you a lot of authority and power And on the other hand it says but
if you're gonna do it you have to do it in this fashion and in
the state of Washington the Authority and the limitations on that
Authority differ a little bit depending how you're organized and that's where we're
gonna start and is with the organizations of cities in the state of
Washington. And if you have questions at any time, just interrupt me and
ask your questions. You know, I hopefully will end this with you feeling like you've
learned something and not just had a whole bunch more questions created that you don't
know the answers to. The cities and towns are organized in a number of different
ways in Washington, and this has evolved. We have first-class cities like Seattle and
Spokane that are charter cities Second-class cities which are few and far between
now most second-class cities have converted to another form of government But some still exist
and they have specific limitations We have towns that really have a whole different set
of rules. They're set up differently. They have different responsibilities that are
based upon the fact that they're small and And that often everyone knows everybody or
is related to everybody within the town And then we have code cities and code
cities were an attempt to really unify and uniform make uniform the
rules that governed how you would operate And exercise this
authority The code cities
Are set up under 35 a 11 and and it establishes the rights, powers, and
privileges. It also defines your authority, so the legislative body
has specific authorities as defined by statute. And in your case,
the type of code city is the mayor council form of
government. And there's a specific set of rules that govern that, and we'll talk about
that in a little bit. There are some general powers that are granted to
all code cities. You can act in concert with other municipalities. You can enter into
agreements with counties and other cities or other municipal districts. You
are conferred the greatest power of local self-government consistent with the
Constitution, which allows you to make really any law that you think is necessary to
protect the public health, safety, and welfare as long as there isn't another law that
says you can't. And that has been interpreted as being a very broad grant of
power. I think Hugh Spitzer just wrote an article for MRSC confirming at
least his view of that as being a very broad grant of power so you
can do whatever you want unless there's a statute or constitution that says you can't
do it. And of course we fight about that a little bit as to whether
or not one exists. You can participate in all the Economic
Opportunity Act programs as a code city. And often the
economic opportunity programs allow you to give money for economic development.
And code cities can fully participate in that. You can provide for initiative and referendum
if you choose to. So the citizens can both initiate legislation
through a petition process or they can put what you've done to the vote of
the people through a referendum process. And you can allow members to serve on volunteer
firefighters, reserve law enforcement members to receive compensation, specific general
powers that are granted to the city.
Three different ways you can organize as a code city is you could be a
charter city. So you could write, have a constitutional
committee, write a charter and submit that charter to a vote of the people. You
can be a mayor council plan of government where the mayor is a chief executive
officer and the council is a separate body, though the mayor does chair the meetings.
Or you could have a council city manager form of government where the council
legislates, hires a city manager, and the city manager does all the administration of the
city. And it's important to
be familiar with the specific chapter that talks about your form of government, and if
you haven't, I'd encourage all of you to go to 35A 12 and 11,
but 12 is the specific mayor council form of government and just take a look
at it and see what the rules and the regulations are. Because those are
the rules that tell you what you can and what you cannot do.
These are the duties of the mayor. And it's important to understand that the
duties of the mayor in a mayor council form of government are pretty expansive. And
they're, the chief executive officer type duties. So
you're the chief executive and administrative officer of the city in charge of all
departments, you designate assistance, you report to the council, you make recommendations to the council
and you prepare and submit a budget to the council. The mayor also has the
ability to vote if there is a tie on the council
and that's it. Exists in most circumstances where a supermajority is not
required and the mayor has a veto power that is subject to being overturned By
a supermajority of the council So the mayor has some real specific duties
But they're primarily administrative duties and you'll see that type of
Responsibility in the mayor in charter cities. It's kind of mirrored in a lot of
the charter cities where they give the mayor very similar powers and The difference between
charter cities and a mayor council form of government is that the mayor Is at
the meetings runs the meetings and can vote in a place of a tie You
won't see that as much in the charter cities, but again those are the manners
in which you exercise your authority and The real important part of that
for the members of the council is you can't do the mayor's job and
collectively or individually that's not your job and when
individual council members start doing the mayor's job and interfering in personnel issues or
trying to give direct orders to members of the city that's where we get lawsuits
and that's where the employees sue and we end up in in hot water so
it's real important that everybody has a clear understanding of what their role is and
they try not to do a role that's not assigned to them.
The powers of the council are defined under 35A 12190.
And essentially, again, you have all legislative powers. So you can do all those things
that I talked about at the beginning of my presentation. You can tax, you can
create zones, you can draft comprehensive plans, you can limit uses, restrict uses,
establish design guidelines, protect historical districts, provide services, those are all
within your power to act by ordinance. And it is really a tremendous power,
but it's a collective power. Your authority as a council is collective as a
body. Your authority as an individual is pretty nonexistent.
And again, that's where the problems arise is when individual council members
start taking actions that may have an impact on someone's person's liberty or property
and that's where we end up in the big lawsuits where the the developer sues
for the tortious interference in his business expectations and gets the nine or ten million
dollar verdicts and of course that's one thing the city or the city's insurance company
is always concerned about
The officers of municipality, that's you, have only such powers are confirmed
upon you expressly or by necessary implication. And this again
goes back to the limitations of your authority. Now the Constitution is pretty broad. And
code cities by statute are pretty broad. But you want to look
for a specific delegation or a specific expression of that power before you act.
When I have a planning commission come to me, or they'd come to Wayne, or
a planning department would come to Wayne and myself and say, can I do this?
My answer always is, where does it say you can? And if they can't point
to an ordinance, statute, or writing of some kind that provides them the authority to
do that, then the answer is probably no, you can't do that. So we're always
looking for the specific authorization to act whether we're a department head or a
council or a mayor you can accept donations
cities are allowed to accept donations which is a good thing somebody can give you
a park or a building or a street or you know they can donate things
to the city you can't individually accept donations the city can
accept them you can't and we'll talk about the ethics rules in a little more
detail The last thing is you can purchase liability insurance,
and you have through WCIA. But the important thing to remember there
is it will allow you to be insured for damages
arising from your acts or omissions while performing or in good faith purporting to
perform your official duties. And that goes right back to what we started at
that we started talking about at the beginning. You need to act within the scope
of your official duties, and if you start drifting from that and going on
a mission because of a personal interest you have, then not only will you
put the city at risk, but you may put yourself personally at risk. The city
of Spokane had a circumstance where they zoned an area, a multi-family,
an owner of property within the multifamily area submitted a permit for a
grading permit because he wanted to start preparations for a high rise apartment.
And the neighbors were all upset because the road in their mind was inadequate
and the intersection onto the state highway was dangerous. And so they came down to
the council and called the council and made their feelings known. And the council
instructed the city manager to put it on the agenda, this grading permit that normally
was done ministerially by the building inspector or the building official. And then the
council denied the building permit, or the grading permit, and said, no,
we're gonna have to look into this more. And one of the council members made
the unfortunate comment to the effect that, well, if they sue us, we
can go ahead and issue it. And that got into the record and was cited
by the court. You know, that turned into a huge lawsuit because the council started
doing something that was an administrative ministerial duty that was done by the building official.
And they had the best of intentions. They were trying to prevent an unsafe condition,
but they zoned the land multifamily. Once they did that, you know, then it was
really just a compliance issue. You know, does the permit comply with the existing laws?
So they crossed the line. The court specifically found each of the council members
personally liable for any damages that resulted from that action.
And you know, that's an extreme circumstance. Their lawyer had said, don't do this. It's
not legal. They said, well, doing it anyway. If they sue us, we can change
our mind. But it's a real clear example of going beyond
the scope of your authority and the not performing your official duties. And in
that circumstance, a claim could have been made that they were not covered under the
insurance policy. A claim could have been made by the city that they were not
covered by the city's indemnification policies. And there would have been personal
exposure or liability. So just be cautious about that. And if you ever feel like
you're on that line, you need to have the conversation with your city attorney and
then follow his guidance. Okay, ethics.
You have two layers of rules that govern your ethical behavior. One is
statutory and the other is the ethics rules that you have adopted.
The statutory ethic rules really have three parts. The first is
that you can't receive any compensation or gratuity in connection with a
contract from a party beneficially interested in that contract. So if the
local Ford dealer says, you know, I want to bid to
provide your fleet of police cars and also says, and as a
special incentive, I'll give all of your elected officials a special double discount
on a Ford of their choice then you will have received something of value from
someone who's beneficially interested and you can't do that. So you need to be real
cautious when the city is contracting with parties that you're not in some
manner benefiting from that contract. The second one is a little more broad
and that really prohibits you from receiving anything of value
from a source other than the municipality because you're a
public official or an elected official. So let's say a
developer comes to town and just wants to talk to you about general issues
relating to his development. And he wants to take you out to dinner and
just talk. Can you let him buy you dinner? Probably not.
Now I know in your ethical rules, you have that $50 or under for functions
that are related to your official capacity. And I would see that as a group
type function, a seminar. I would not see that as an individual that was trying
to curry favor with the council. So I think the best practice is you don't
take anything from anybody because you're a council member, a mayor, or a city official.
You know, you certainly can get gifts from your friends that have nothing to do
with your role on the council, but I'd be real cautious about taking anything of
value because you're a council member. You know, and there's a lot of different dodges
that people use to get past that that may or may not work. You know,
the bond lawyer comes to town and takes all the city attorneys out to dinner
at a fancy restaurant and perhaps the mayor as well. and
when he says i'll go ahead and get dinner and everybody says well we'll get
the next one you know you know kind of acting like it's going to be
a even deal it's not it's not going to work that way so you really
have to be cautious about that when i was working with governor lock and when
i would travel with him the one thing i noticed is that he never let
anybody even buy him a cup of coffee ever Nobody bought him
anything. And I think in some ways, especially if you're an elected official, that's probably
the best rule to follow. So the ethics provision
is relatively clear for cities and towns. And it really says that you're not supposed
to take anything because you're a public official from anybody other than the municipality itself.
know a lot of times at christmas people get gifts and they put it in
the lunchroom for the city as a whole i guess you could consider that a
donation to the city not to the individual but i would just be cautious about
that finally you can't use your permission to secure a special privilege
for yourself or others mayor calls public works
director my son needs a job this summer can you make that happen
probably a violation of this statute. Any self-dealing or using your
position to know ahead of time that something might be happening in the area of
land use and then making purchases to benefit yourself, probably a violation of this statute.
The second half of this statute is you can't disclose confidential information gained by
reason of your position. So if you're privy to employment matters, in
executive session that is confidential information, you can't
disclose that. If you're in an executive session dealing with a matter of litigation or
real estate and you receive confidential information because of your position as a council member,
you can't disclose that. It would be a violation of your ethical provisions to do
so. If you're in a position where there's a lot of discord on your
council and you don't like what's going on in executive session,
my recommendation is you don't go as opposed to disclosing what happened
during executive session because one is a clear violation. As a body, a council
can also say, no, we're not going to go into executive session. They have that
right. Generally that means you're not gonna get the information you might need to make
a good decision. But be cautious about never disclosing information that
you receive because of your position, because that would be a clear ethical violation.
If you look at your ethics rules,
they pretty much mirror the statute. They add in the 4217 prohibitions.
that aren't listed on this slide, and those are the prohibitions about using public funds
for campaign purposes or using public facilities for campaign
purposes. And when I was on the PDC, again and again, we had problems
with that where people would use public facilities, computers,
vehicles, uniforms, to promote their campaign and they would be in
violation of the 4217 prohibitions. So you can't
use your city email to do blanket emailings that say elect me
or come to my campaign party or let's get together and do an organizational meeting.
That has to be done separate and apart through your own private campaign committees. You
can't use public facilities to promote bonds or initiatives
that you may be sponsoring as a council. You can provide information about them
through certain channels, but if you want to promote an upcoming elected bond
issue, that has to be done through a separate committee. That can't be done through
the city's facilities. Now anybody, if you have a
policy allowing the use of your facilities like an auditorium or
a meeting hall could rent that for political purposes as long as it was open
for all and you didn't give special deals to the ones that you were in
favor of. But you have to be very careful to keep public facilities to
be separate from political ventures. And the reason for that is real simple. The voters
own the facilities, they don't all support the same candidate. and you're disenfranchising
somebody if you're using public facilities to support one side or the other. So you
really need to keep that separation.
The policy also talks about public records, which we'll talk about in a couple of
minutes. It talks about conflicts of interest and
I would just spend some time going through your own policy. It really does mirror
the statute. It does have some exceptions to gifts.
And the $50 value exception is item number two under B.
And it says accepting a meal, food items, or event tickets of moderate value when
provided in conjunction with the conduct of city business, or where official attendance
by municipal officer employee as a staff representative is appropriate. And I would
read that very narrowly. If it's the type of activity that the council as a
whole is invited to and attendance is somehow germane to them doing their
job, where they're gonna learn something about being a public official, then that probably makes
sense. You know, you go to an AWC, or whatever than that, I mean, the
buffets they put on are extraordinary. So if you don't go to the AWC's,
you should give them a try, they're pretty good. But I think that makes sense,
but if, as it happened in Spokane, a private outfit
of developers and other economic interests had a
fancy dinner and a private viewing of the Lion King. before it actually was gonna
be, it was the play, not the movie. And it really provided absolutely
nothing to public officials about governing. It was just a
free dinner and free theater performance. And it was given to them solely because they
were elected officials or public officials. And I had one mayor ask me, well, can
I go to that? And I said, well, I don't think so. I don't see
anything on the agenda that has anything to do with being council member or mayor
or anything else and the particular mayor's response was well that was that's
just your opinion right and I said yeah that's just my opinion so you know
there's gray areas you're gonna run into here but I would err on the side
of not crossing that line because it looks like people are buying your
vote their influence peddling and at the local level
I think it's real, you have to be very careful that that's not occurring. If
you look at the rules for state employees, the ethical rules for state employees, they
have a whole laundry list of things that they can accept. It's a little more
open and allows them to accept flowers and candies and other things, but we don't
have those exceptions in 4223 for local officials. And I think the reason we don't
have those exceptions is because we're small communities. And they don't want there to be
any inference that there is any inference or influence peddling.
Okay, any questions about ethics? Okay, I'll assume we're all
highly ethical. There are penalties if you violate the ethics rules.
I've never seen anybody let away in handcuffs. It just was a good visual. So
I haven't seen that happen. But you can be subject to a penalty in the
amount of $500. You could be in a position where you would forfeit your office
if you're convicted of a crime. You could be subject to recall if
you are guilty of malfeasance or misfeasance. And the Supreme Court has been a little
loosey-goosey determining exactly what that is so
again if you violate the ethics rules that could be the end of your political
career because it could be a ground for a recall or it could be a
forfeiture of office if there's an actual conviction so you want to be careful of
that one of the issues that comes up
when a council and a mayor or staff council and mayor
Are at odds is they all go to the city attorney and say represent me
against him And so the the city attorney has a pretty strict
duty and it's really to represent the organization the entity
through its duly authorized constituents so if it's an administrative matter and
He's going to represent the person who's charged with administrative duties, which would be the
mayor or your city administrator. If it's a legislative matter,
something which the council is doing within the purview of their duties, then he's gonna
be representing the council. If there are individual questions as to how to be a
council member and what are the rules that I follow, then he would be representing
you in your capacity as council members. But it's,
you know, he represents the organization. And sometimes a city attorney
has to step back a little bit and, you know, say if we're going to
have a conflict between different parts of the city, then sometimes you have to bring
in other attorneys so that you can do that without putting the city attorney in
a conflicting position. One of the caveats that's been established by case law
if the council goes rogue and decides to get their own city attorney they better
win because if they lose there's no authority to pay that attorney they're on their
own so you know again if you do that you really you shouldn't do that
it never turns out well every circumstance i've seen in the state where we've had
multiple attorneys has been a nightmare and it turns out
costing everybody including the city money. So try to avoid that. Bring in a mediator,
talk to your city attorney, try to work it out. Because usually contested fights
within the city don't work. The
code cities can appoint city attorneys or hire contract attorneys. Other cities have a little
bit different rules that they have to follow. Your
rules of conduct as council members
adopt Robert's Rules of Order. And I wanted to just go through
them a little, just briefly to talk about some of the basic tenets of Robert's
Rules of Order. And interestingly, they were written by a guy named
Roberts, obviously, back in the colonial days when our government was just being formed.
and they're trying to come up with a set of rules and procedures to run
meetings. And so the Roberts Rules of Order were adopted by, written
by Roberts and adopted by many of our governmental bodies at that early date. And
if you go down to the library now and get the revised up-to-date Roberts Rules
of Order, it's written by a guy named Roberts, and he's a direct descendant of
the original Roberts that wrote the rules in the first place. and it's kind of
just carried on through all the ages. And if you look at the basic tenets
of Robert's Rules of Order, there really are just a couple general principles that you
need to be aware of. One, you talk about one thing at a time, and
that makes sense. If any of you have been part of a meeting where everybody
was talking about different topics, you never get anywhere. You give everybody
a chance to express opposing points of view So everybody has a chance to
express their opinion. You also should call for a negative vote. Don't just say all
in favor and then assume that's it. All in favor, all opposed, always call for
a negative vote. You can find debate to the merits of the pending question. That's
why you make a motion. Make a motion, you make a second, you talk about
that motion until you vote on it. And then you move on to the next
topic. And you can divide a motion up into several parts. It looks like the
members would be supportive of one part, but not another part. The rights of an
assembly or an organization are defined by a number of things. They're defined by
constitution, our rights of due process, equal protection. They're defined by
statute, where the statutes tell us what we have to do in our meetings.
They're defined by a charter. If you were a charter city, that would tell you
what the rights and responsibilities are. They're defined by council rules, and you have council
rules that tell you exactly how you're supposed to act, and you have to follow
those unless for some reason you want to change them, and then as a
body, you can change the rules. And the last source of
rights is custom and practice. and I'd be real cautious of that. A
lot of times when I'm involved in a lawsuit with a client and I ask
the mayor or the council, why did you do that? And the answer is, well,
that's the way we've always done it. That's a really bad answer because it may
be unlawful even if it's the way you've always done it. So try to make
sure your conduct is in conformance with your council rules, statutes, or
constitutional provisions, not just that's the way we've always done it. Because a lot of
times the way we've always done it is not lawful. You've got some basic rights
as members of a body to attend meetings, to make motions,
to speak and debate, and to vote. And under Robert's Rules of Order, if any
of those rights are being impaired in some fashion, then you're in violation
of the rules. A majority vote decides most decisions.
Certain things, declaring an emergency, spending money, borrowing money,
approving franchises would require a majority plus one.
Sometimes you may not have enough members to pass an item and even if you
have a quorum present, a quorum is the majority of members, it's
generally defined as The order of business in Robert's Rules is very close to the
order of business that you had in your agenda tonight. And it's formulated after that.
Motions are how you do business. You make a motion, a
member seconds the motion, the chair says, okay, here's what the motion is. So it's
clear, you debate it and then you vote on it. And then the chair announced
the results of the vote. know basic procedures and that keeps you to that topping
talking about one topic at a time you can have other motions to
postpone or table a matter you can have emotions for personal needs can we take
a break mr. mayor you can do a point of order if you
feel like it's time has passed and you shouldn't be debating an issue
You can call for a question. And the calling for a question occurs when you
usually have one or two members that just won't let it go, and they just
keep talking and talking and it's no longer productive. Then you can call,
another member can say, I'm gonna call for a question. And if that's seconded, and
two thirds of you vote for it, then the next action you take is you
vote on the motion. No more debate. It cuts off debate. So it's a
device that can be used. Usually isn't. But I've seen it used in divisive
councils where there was a lot of fighting. I had one council where my council
member would get up off the diaz, come down to the podium, and say he
was now being a citizen. And then he would speak, even though he wasn't
authorized to. And then he'd go back on the podium and he'd talk some more.
You know, I saw the... a question being called a couple times on that
particular council member. He also, I think, sued me about 16 times over the course
of three years. Pardon me? Was he a lawyer? Yes, he was. He was a
lawyer. You know, you can't trust the lawyers. But sometimes when
you have a divisive council, this is a divisive works. The other thing is be
careful about unanimous consent or do we have consensus on that? I had one
mayor that would just say, oh, do we have consensus on that? And there'd be
some nodding and then he'd move on and I'd say, wait, I said, I need
a vote. I need a record vote on this matter. This isn't a consensus item.
This was a motion that was on the floor. So be cautious about operating by
consensus for ordinances or motions or resolutions or things that need a record.
Even though it's kind of nice that you're all getting along and everybody agrees, Be
cautious of that. You know if you're going to figure out where the Christmas party
is going to be or Meeting date or something like that a consensus would work,
but if you're passing an ordinance resolution or motion then then do that more formally
Okay, any questions about Robert's rules if you want a more extensive outline
just send me an email I've got a about a 15 page detailed outline on
Robert's Rules and it gets increasingly boring the longer the outline gets. So I tried
to reduce it to a short number. But if you're a rules person,
then give me a call. We're glad to give you more detailed information on that.
So there's four areas where we get sued. Land use, there's been
A number of decisions in the nine and $10 million range, which
are horrendous and they're often a tortious interference type claim where a developer says you're
messing with them and acting outside the scope of your authority. There's personnel
and that often happens when elected officials decide they want to be human resource
managers or an employee goes to one council member says i'm not being
treated fairly and that council member then intervenes directly that's where we get into a
lot of personnel problems there's negligent misrepresentation that's the
over promising yeah we can do that for you no problem we'll take care of
that i'm sure we'll make sure that development happens individually you have no authority to
promise anything you can direct them to the You can direct them to the
staff member that handles the matter. You can tell them to come to a council
meeting and make their pitch to the council as a whole, but don't promise anything
individually and the mayor shouldn't promise anything individually. Defamation,
be careful about what you say from the Diaz. You have almost absolute protection until
you take off your legislative hat and start doing something different.
comments on people's personal reputation are never appropriate in your official
capacity. You know, the development might be consistent with our rules,
but I know this guy, he's a crook, and I don't think we should vote
for his development. You know, that could be slanderous, and often slander is not covered
by any insurance policy. Might not even be covered by your personal insurance if you
don't have an umbrella. So it's a dangerous practice to make
comments about people's character or reputation. And I just avoid it at all costs.
Public works is when you substitute your judgment for that of your trained engineering
staff and make a decision that's not based on AASHTO or
MUTCD standards, but based on what I think is right or fair.
A classic example of that that we had in one of my cities was we
had people turning left across a double line
into a business, a couple businesses, and they were being t-boned by cars that were
accelerating to go onto the freeway on-ramp because the cars would get through the light
and then they'd goose it to get up to speed and these cars would turn
in front of them often a blind turn because the other lane of travel had
stopped and they were getting hit. So the engineer said this is not a safe
condition and because of the accidents and the traffic volume, we have to put a
divider and not allow left-hand turn lanes. They'll have to go down to the end
of the block and come back. Well, the businesses were upset
and came to the council meeting and wanted the council to overturn the engineering decision.
Unfortunately, they didn't, but if they had, then the next person that got T-boned probably
would have sued us and we would have been liable for those damages. So be
cautious about that. We'll talk about all of these in a little more detail. You
have almost absolute immunity when you're acting as legislative bodies, adoption of
budget ordinances and resolutions at the meeting in the context as a council.
It's when you step outside of your role or start doing things that you have
no authority to do that you get into trouble. And that's an old Monopoly card
if you didn't recognize it. Okay,
so land use. I don't know where this picture came from. That's a bulldozer and
an angry neighbor, I guess. I had my staff grab
pictures and this one is a little horrific, but... You have two roles. You have
a quasi judicial role and you have a legislative role. And when you're acting
legislatively, you know, there's not a lot of rules. You know that your job is
to talk to people, to do your own investigation, to have as many meetings as
you want to have. When you're developing a comp plan or writing area wide development
regulations, you know, that's when you kind of interact with the people and do what
you think is best. When you're acting quasi-judicially, it's a whole different
ballgame. You've got your judge's hat on. And if you're doing that, you've got all
kinds of rules. You can only have one open hearing. You can only have one
closed appeal hearing. You cannot have any contact with the parties to that
particular project outside of the council chambers. You have to make your decision
based on the record. You don't do your own homework. You don't do any self-help.
Quasi-judicial actions, you have to act like a judge and if you don't, then you
can be challenged. You can either be challenged under the appearance of fairness doctrine, your
actions can be declared void, or you can be sued for money damages. If it's
an appeal of a site-specific project permit of some kind,
And the public record hearing has been held at the Planning Commission level then
you need to have your judges hat on and Not contact anybody
not do any investigation on your own and make the decision based on the record
that's presented to you Pursuant to the criteria that set forth in your code
and it's real important that you remember which role you're playing and because you're not
allowed to be legislative during the consideration of a project permit.
They're vested to be considered under the laws that existed at the time their application
was made. And that's where you get into trouble. One of the issues that comes
up a lot is the kind of intermixing of
planning commission functions and council functions. And a lot of council members
like to be a part of the Planning Commission functions because they like to hear
what the people have to say they may have a specific interest in a topic
and there's not a lot of black and white guidelines but the best
practices what I would recommend is if it's quasi judicial I'd stay away
now I know a lot of council members will attend the Planning Commission hearing of
a quasi judicial matter And I don't think there's a direct prohibition of that, but
it's fraught with danger. If you can't control yourself and you speak up, you've
demonstrated bias or prejudice. If there's something that's brought up at the Planning
Commission hearing, but then disregarded or not made a part of the record that goes
up on appeal, then suddenly you've heard something outside of the record. If you participate,
then you really are disqualifying yourself from serving as a council member. So
quasi judicial hearings, I think are dangerous. And you'll have to work with your own
attorney on specific guidelines for how to do that. Legislative actions
are less. Question? Yes.
That makes a lot of sense talking about the meetings, but is the actual video
of the meeting, which is a public record, not, you shouldn't be watching that either?
You should only be reading written materials that are in the package? Well, I think
you have to let your attorney put the record together, and I suspect the tape
of the record or the video of the record is going to be part of
that record that will be before you. But I would take guidance from Wayne as
to here's the record and here's what it encompasses. because you don't want different council
members relying upon different records. So what I usually do is I would define the
record at an appeal hearing. The record consists of these things. You've got the written
transcripts, you can view the video, it's available here.
But I think you need to make sure that the council members are all looking
at the same record when they're making their quasi-judicial decision on something.
The legislative is, again, it doesn't have all the appearance of fairness issues
or the multiple hearing issues or anything that arise with quasi-judicial. And
I don't think, again, there's any direct prohibition of you involving yourself other than we
have a scheme of how government operates under our statutes.
and the Planning Commission is given a specific duty and then your ordinances give that
Planning Commission specific duties with legislative matters. They hold public hearings and they make
recommendations to you. Then the council can take those recommendations, ignore them,
accept them, modify them, and make their own findings as to why they did that.
And I think in a perfect world, it's best to let everybody do their job
let the Planning Commission do its job you've appointed them for that purpose and then
you guys do your job as council members and I realize there's going to be
times when you may want to be involved at the Planning Commission level but I
would again work with your attorney on any guidance for that but it's I think
it's cleaner if everybody does what they were assigned to do by statute
and you know that is certainly not a legal mandate but that's in my
experience it works better that way you know we don't want to be in a
position where you're somehow influencing or
coercing a planning commission to act in a certain way you've appointed them to do
that job and I think you need to make sure that the environment is such
that they're allowed to do it and the one thing to keep in mind when
you're looking at the structure the Planning Commission is set up to be a non-political
body. You know, they're appointed for terms that stagger and
that go past the time of the council. They cannot be removed unless
they don't come to meetings. You can't just get rid of them because you don't
like their opinion. So they're kind of protected. So they do have a specific
function to bring some planning expertise and some non-political
perspective to the land use process. And I would work hard to protect that and
I'd go back and look at your own ordinances and see what they say about
the planning commission and its operation.
Any questions about that? I'll get back off my soapbox. Just in my experience after
a few years in government, it works better if everybody does what they're assigned to
do. That's when government works best. And when we
all start wearing out everybody else's hats, it gets a little confused.
The Westmark case, they essentially didn't like a high-rise apartment
complex and took a lot of actions to delay and change the law and affect
it over a substantial period of time. And the The total
liability to the city with attorney fees was almost $14 million.
And that was a classic case of a council not simply determining if the
project complied with existing rules, but trying to determine as to whether or not we
wanted to have that use on that property. And they were making legislative decisions
they were reviewing a project permit and you can't do that you just can determine
compliance and if it complies you have to say yes and if you really don't
like the use in that area you need to change the law and it'll apply
to any subsequent projects that are put in there mission springs we just talked about
there's another large judgment against a west side city in the last three or four
months multi-millions again So it's, you know, sometimes
when times get tough and there aren't profits available, people look to lawsuits to fund
their actions. So be cautious of that. Personnel, stay in
your legislative role. You know, create departments and set budgets,
but don't get involved in specific personnel decisions. not stray into the
mayor city administrators job don't participate in
trying to manage individual employees you know the personnel laws change constantly you've got
human resource people that are well versed in that you've got city attorneys that are
well versed in that and it's just an area that you really need to try
to stay out of as best you can and we you know that's an area
where we get a lot of lawsuits where the council starts wearing their administrative hat
that they really don't have. Don't make specific promises.
Don't take matters into your own hands. Don't go down to the planning director and
demand that they expedite this application. You know, that's just not appropriate.
If you want to expedite applications, you can pass some legislation that will allow all
applications of a similar nature to be expedited, but not a specific
expedition defamation we talked about
you know making comments on character or reputation
is dangerous and I would just avoid it
public works don't politically engineer crosswalk sign speed limits
You know, you can certainly ask staff questions. You can ask for staff input. But
ultimately, your engineering decision should be based on the
accepted engineering standards so that if you get sued, you can have
a defense. And again, I'd work with both your city attorney and your city engineer
on that. You know, all of you probably have hats in your
other life, your real life, your day job. You know, councils will have attorneys
and engineers and architects and, you know, people of all different skills,
accountants. But you need to be careful not to try to assume that role for
the city. You're there as a council person. And it's also important that you rely
upon the expertise of the people that you hire and not try to substitute your
decision for theirs. don't leak executive session
information. There's a reason why we're allowed to talk about
certain things in secret without public exposure and it's because the city would suffer
financial liability if the word got out as to what we were gonna charge or
bid for property or what the weaknesses of our case was
or confidential information about a specific personnel. issue those are
all confidential for a reason and should be kept that way you know every state's
different on this one executive sessions some states require that they be
recorded some states require minutes some states don't allow them at all
so it's it's every state kind of has a different set of rules for executive
sessions right now our rule is you can have them if they're for some very
specific limited issues and they
don't have to be recorded and there's been some attempts to change that but i
haven't seen it yet be mindful of written communications
you know the we we for some reason feel like emails or tweets or
texts are somehow protected and they're not They're all public
records and we'll talk about that in a little bit. But you have to be
really mindful about what you write down. Because odds are somebody's gonna see it. It's
probably a public record and it's probably gonna be disclosed. So don't write it down
if you don't want it published in the newspaper. When I was in the
fifth grade, I think I wrote a letter to a girl named Marsha that I
was sweet on. you know, said meet me down at the park after school, you
know, XOXO, folded it up and handed it up to her through a bunch of
kids and they all, you know, they honored the code, they didn't look. But the
teacher saw this note moving up the ranks and grabbed it and opened it up
and read it and then made fun of me and I was mortified. I went
home and told my dad, I said, you know, can't we do something? Can't we
sue this guy or something, you know? And he just laughed, he goes, hey, he
goes, if you don't want it in the paper, don't write it down. And our
public records law, that advice rings true. We get
all kinds of trouble and lose a lot of lawsuits because of a casual comment
that was written down. And in any electronic or written format, likely it will be
discovered. Okay, so let's talk about the Open Public Meetings Act.
The essentials of the Open Public Meeting Act is that if you're doing the city's
business, if a quorum of you are doing the city's business, you have to do
it at a publicly noticed meeting. So you can't
get together with a quorum and discuss, even discuss the city's business
without violating the Open Public Meeting Act. And that get together
can be all of you physically in one place it can be a quorum of
you on the telephone or it could be done in a series fashion where
council member one sends a email to council member two and says what do you
think and then that's forwarded to council members three and four suddenly
we have an illegal meeting it can be done with a series of phone calls
This is on the agenda tonight. How are you gonna vote? Why don't you call
Bob and see how he's gonna vote? You know, an attempt to try to count
votes ahead of time or to try to twist arms and be persuasive ahead of
time. As soon as you reach that quorum number, then you've got an illegal meeting.
And the best practice is confining your
governing, your discussions, your deliberations,
your investigations to the meeting itself.
Action can be public testimony,
deliberations, discussions, considerations, review, evaluation. All of those things
are the things that the public has a right to see. And so those are
things which you have to do at the publicly noticed meetings.
And I've had a lot of clients over the years run afoul of the law.
They clearly held that series of emails constitute an illegal meeting.
I've had clients that would do the rotating meeting where three would meet and then
one would leave and another would show up. That's gonna be a violation of the
Open Public Meetings Act. So the only case we won was when I
had three members meet and that was it and there was no fourth member and
the court said no quorum, no violation. That was okay. But you have to be
very cautious about getting together and talking about city business
if you're not in a publicly noticed beating. Now there's some exceptions to that. If
you're going to a conference and you're all gonna be there and you're gonna travel
together in one car The law allows that to happen, but again, I would not
discuss the agenda items for the next meeting. I would discuss what's going on at
the conference. And it's a little artificial if you're one of my county clients that
have three commissioners, because essentially what it means is they can't talk about county business
ever. If two of them talk, they're having an illegal meeting. And it kind of
almost is counterintuitive, but that's the way the law is set up. And let's just
look at a couple examples. There's a number of recall cases where they
said a violation of the Open Public Meeting Act was the basis for the recall.
And in one of them, they found that there was really no proof that
any action had taken place, no discussion of city business. So you can,
if there is no evidence that you have the types of discussions, it would be
a violation. In the other case, your organization to preserve agricultural lands, there
was telephone lobbying between a quorum, but again, there's an
allegation of that, but there wasn't enough proof. So in both these cases, they didn't
find a violation, but it wasn't because the act would have been a violation, it's
because they didn't have enough evidence to prove it. A
discussion between the city council, legal council and city managers
trying to decide whether they joined some statewide litigation was found to not be a
violation. That was a proper use of executive session and that wasn't a violation of
the public meeting act. Meetings between legislative members that occurred
prior to them being sworn in, even though there was a quorum of the future
council, was not a violation because they weren't council members yet.
So that wasn't a violation. When less than a
majority of the governing body meets is not a violation. The mere
use or passive receipt of email is not a violation. So if one of you
sent an email out to a quorum of council members
Technically that may not be a violation because you just passively received the email, but
I would not do that. I would, if you have something you think the council
needs to be informed of, I would send it to the city clerk and ask
them to put it in the packet for the next meeting. I would not exchange
email about interesting issues because nobody doesn't respond to begin with, everybody responds.
And as soon as you have a quorum receiving and responding, it's gonna be an
illegal meeting. So I try to control that flow of communication by going through the
city clerk. Meetings between the mayor
and special counsel. This was one of our cases where
the mayor and the special counsel were just talking about a lawsuit. And the court
said that that was not a violation of the public meeting because a mayor wasn't
a body. Critical Area
Ordinance Implementation Team and this is the Citizens Alliance case San Juan
County case Was not considered a body that was subject to the Open
Public Meetings Act And this case went to the Court of Appeals and then up
to the Supreme Court and I put the rules in just so you could see
that what they came up with in terms of when a committee would be considered
subject to a the Open Public Meeting Act, and they set forth
several rules. If a majority of the members gather with the collective intent of transacting
business, even if it's discussion only, that's a violation. A
committee with respect to a governing body is an entity created and specifically
authorized if it acts on behalf of. MRSC used the words, if it was a
legal, necessary antecedent to their actions. In other words, you said
to the committee, you take this action and then we will act accordingly. The one
case where it was found to be a violation is when the city of Lakewood,
I think, delegated, the planning commission delegated the development of its adult entertainment
ordinance to a committee. And that committee held hearings, took testimony, and then made
recommendations to the planning commission but they didn't open those to the public. The committee
didn't open their meetings to the public and that was found to be a violation
of the Open Public Meeting Act. And this is the test under Citizens
Alliance and I won't read it to you, but it's there if you wanna look
at it. Question? Yes. About
committees, so we have council committees, three members, and we have
But our committees will review legislation, shape legislation,
refer them back to a regular meeting for legislative action. And generally they've been found
not to be subject to the Open Public Meeting Act, but many cities that I
work with notice them anyway as public meetings. Just because if a fourth council member
shows up, then you may have a problem. Yeah, we don't notice them, so a
fourth member is not allowed to show up. Yeah, no, and I think that's appropriate.
If you look at the legislative history, that very question was asked, does this mean
the subcommittee of the council is subject to the Open Public Meeting Act? And the
answer was no. But again, I'd be careful because you don't
want to have that fourth member show up or somehow charge that committee with
something other than just making recommendations to the council member for their legislative act.
Right, and we publish agendas ahead of time. They are open, they are unnoticed, or
at least scheduled and publicly, they're open to the public. My question has to do
with members of a committee having a dialogue, members of a committee limited
to three, having a dialogue via email for business in front of the committee.
Well, if it's not a body that's subject to the Open Public Meeting Act,
then the email doesn't matter. But again, I would caution you from doing that because
it could turn into a meeting if a fourth party was copied or received on
that. I mean, I just think it's a dangerous practice. I would go through the
clerk and have the clerk distribute the information to the members of the committee. Yeah,
every case where it's come up, we always tend to err on the side of
caution and, hey, this would be all three members of our committee. So let's
not have that conversation. Yeah, you know, I'd just be real careful about using email
to conduct business. I think you can email the clerk and have the clerk send
it out to the body, whether it's a body subject to the act or not.
But as soon as you get into the habit of conducting business by email, there's
gonna be an argument that in some fashion you've created a quorum
that may be in violation of the act. Mike, I think maybe the question
is, suppose you had a council committee that was subject to the Open Public Meetings
Act. Okay. And there were three council members on that committee.
Any two would be a quorum, presumably. So those two couldn't talk
outside the meeting. If you had a committee of three. If you had a committee
of three that was subject to the act under the Citizens Alliance test, you somehow
met those requirements, you took testimony or something, then yeah, any two couldn't have any
communications outside of the meeting. But if that committee is making the final legislative decision.
Well then, you know, the... Opposed to a recommendation to... Well, that committee cannot make
the final legislative decision. That's reserved to the council. But the council under the test
can delegate certain things to this committee. So what about our normal structure is? I
mean, the council, we have not delegated anything to our committees. No. Now, there's a
question of what does take testimony mean? Mm-hmm.
It gets dicey because you allow the public to testify, I know, at some committee
meetings. Yeah, if you allow the public to testify, then I think you're going to
be subject to the act. Yeah, you may. At least the argument is there. And
that's what happened to Lakewood. They were taking public testimony in their committees for the
adult entertainment ordinance. You know, the way to not run into a problem with
this is come up with your structure, sit down with your city attorney, vet it,
and say, okay, this falls within, this doesn't fall within, and make sure your
rules are consistent. And the law is literally evolving
as we hear the court cases out of the Supreme Court, because the Citizens Alliance
case is relatively new. I think it came out last year. I think we're pretty
structured, and I think we know what we do, but maybe some vetting
would be the case, because we take public public comment at our committee
meetings. And so, but I also know that we notice them. I mean, not that
there would be a majority of the council, but it is a public meeting and
it's posted. Right, so we comply, I believe we attempt to comply with the open
public meeting for your committees. So you can take testimony, you can do things there
and do that. And that's,
so I, yeah, my real question would then be outside of that meeting, can all
three members of that committee have any email exchange on something that's
in front of the committee? Well, that depends on what the charge of the
committee is and whether you regularly allow the public to comment or have a,
public comment period or testimony period. Actually, excuse me, Wayne, for due respect, I don't
think there's any doubt about what the charge of our committees are. So I think
we can be very, we should be able to be very clear about that. I
mean, we have three council committees. We have infrastructure, we have land and shore, we
have services and safety. I mean, the charge hasn't changed at all. So I would
think it should be very clear on whether or not it's allowed or not. Well,
what I don't know is in the committee charge, are you charged with or is
that something that you just do? Yeah, it's something, yeah, it's generally
up to the discretion of the chair. So that may make a difference, I don't
know. Okay, so let's, we can, I'd like to vet that, just to be absolutely
clear. I think, you know, my experience on the council, we try very hard to
follow this and err on the side of caution. And that topic has came up
and we've tried to avoid that. And we say, well, this would be all three,
so let's not. But it's an open question. So I'd like to know for a
fact whether and what those conditions would be. Thank you.
That was a really interesting question. I'm thinking more in lines of if you have
two out of three committee members who want to work on an agenda bill together,
but they're on the same committee. Are they allowed to do that under the committee
structure? Because that's two-thirds of the committee. You know, if your committee is subject to
the Open Public Meeting Act, if you make the determination because of its actions taking
testimony or its specific charge under the alliance test, if the body is subject to
the Open Public Meetings Act, then you don't do anything. outside of the meeting. A
quorum does not do anything outside of the meeting. So you make that initial determination
and if you determine that the committee is subject to the act, then for a
quorum of that committee to meet outside of a public notice meeting is gonna be
a violation of the act. And your email exchanges under the same scenario, if it's
determined that the committee is subject to the act, then you don't email with a
quorum of that committee. I saw something on your screen a couple slides back that
made me think that we don't, are not subject to the Open Public Meeting Act
because we are not charged by making any final legislative decisions. And that's a determination
I think you need to sit down and make with Wayne. But once the determination
is made that you are, then a whole new set of rules falls in place.
And we always, this is exactly the sticking point that I run into with most
cities is the committees because initially the legislature said no, it's
not a quorum, they're not subject to the act, period. But then as we get
creative and we start doing more and more with the committee and maybe giving specific
charges to that committee, then we may bring them under the act and that requires
a different set of rules. So that's something I think I just talked to
Wayne about and come up, make sure your criteria fits. The punishment for an Open
Public Meeting Act violation now is $500, first offense, $1,000 second offense,
and attorney's fees. And so Bill, I think you had a question. Just a point
of clarification, we talked about taking testimony versus audience comments. And I'm just, semantics
is, maybe we're gonna say that, is accepting audience comments is that when you say
taking testimony, versus allowing audience comments. I'm not sure if that's the same thing or
not. Yeah, and good question Bill. I think that's the point exactly. Allowing audience comment,
or people to comment on what you're doing is different than, for
instance, if a committee of the council were charged with conducting the LID
assessment protest hearing. There you're taking testimony, you're charged with conducting it,
That would probably clearly be a committee subject to the Open Public Meeting Act. In
your particular case, I don't believe that the normal committee structure is because
there's not a specific charge from the Council to conduct a public hearing and take
testimony. You sort of allow it, which, you know, I think that's your discretion, i.e.
not sure that that automatically brings committees into open public meeting. To be
safe and to be transparent, as has been mentioned, we notice all the
meetings and the committee only meets during that time and there's an agenda and so
on and so forth. But actually strictly being required to comply with the law is,
I'm not, I don't believe so, but we'll take another look at that to make
sure we haven't sort of wandered our way into something. I'm gonna
run through a couple cases with the slides, some of which we've already talked about.
Balloting in an executive session is considered a violation. You don't take straw votes, you
don't make decisions in an executive session. The Adult Entertainment Task Force we already talked
about, this was a committee of the Planning Advisory Board. but they took testimony
and they acted upon that testimony in making recommendations to the Planning Commission and that
was a violation. Email messages that included a quorum in which
discussions or information was communicated was considered a violation of the Open Public Meeting Act.
City Council approval of settlement in executive session by collective positive decision, whatever the heck
that is. was a violation because you can't take action in an executive
session. That would have had to have been done in an open public meeting. A
straw vote was considered a violation. The executive sessions
can only be held for the purposes allowed by statute and
only during a regular or special meeting. You should limit the attendees to an executive
session to those that are necessary. for the purpose of the executive session. So you
shouldn't bring in 10 or 15 different staff members. You should bring in the people
that are necessary for the discussion and you can even bring in outside people if
they're necessary for the discussion. You don't have to take notes. I generally don't take
notes and when I hand out stuff, I collect it at the end of the
meeting. Some attorneys will fill out a single form demonstrating compliance.
Others don't do that at all. I'm more of the, no note, no paper
approach, but I have seen a number of forms that have been developed that city
attorneys will use. You have to announce the purpose, how long it will take, and
whether action will be taken when you return. And if you take longer than you
anticipated, you have to come back out and announce that it's going to be continued.
And these are the types of things that can be discussed in executive session, and
I won't go into great detail on those. And these are the consequences of non-compliance.
And probably the biggest hit is the fines, which could be personal to you individually
and not covered by insurance or paid by your city. But there's also the attorney's
fees, which can be substantial.
So let's talk briefly about public records. If we can switch from open public meeting.
The bottom line with public records is everything you write down is a public record
if it's done, you know, prepared, owned, used, or retained
for the purposes of governing. And that includes electronic records as well as
handwritten records or typed records. And every public record has a different
retention value. set forth by the state retention schedules. Have any of you looked at
the state retention schedules? It's about 180 pages of really confusing information,
I think. But they've attempted to prescribe the amount of time you have to keep
every type of record. And so it's a decision that your city clerk is gonna
have to be informed about, and you need to organize your records in a manner
where you keep things for their retained value, retention value. and then get rid of
them. And what happens is the retention schedules are confusing. Nobody really
knows what column things fall into, so we keep everything. And the downfall of that
is when the public record request is made, everything that you have is subject
to that request, even if you could have gotten rid of it five years ago.
If you don't get rid of it, you have to produce it. City councils have
been kind of plagued in the last couple of years. There's been one court that
ordered the city councils to turn over their hard drives of their personal computers to
the requestor, not to the court, to the requestor, because there was evidence that they
were using their personal computers to conduct business and send emails.
And that case settled, I think, before the actual turnover. There's been a case that
went all the way to the Supreme Court where a person's cell phone and the
texts on that cell phone were considered subject to forensic examination and the
burden of segregating personal and business on the cell phone fell on the owner of
the cell phone. So if you are using personal communication devices to conduct city
business, make sure you keep things separate and my recommendation is that you don't. The
state, a lot of the state officials now just have two cell phones, one personal,
one private, or one public. Yes? My question is, is
using web mail or those types of viewers on your personal cell phone
considered using, mixing your personal and your work? You know, I think if you use
your city, like for example, use the city email site or some city platform,
Can you simply access it by your personal phone? You're probably not. But
if you create your own personal email account for city business, then you clearly are.
And it's not a bright line, it's kind of fuzzy right now. But every time
we go to the Supreme Court, they just slam us. And they say, well, you
know, it's gonna be interpreted broadly. So you just need to be real cautious
and be very intentional about how you use personal communication devices, use your city email,
use your city platforms, and keep in mind that public records requests come out from
every direction and often are voluminous and have to be
responded to. But the punchline is if I just, because I just use my city
email for city business and never personal business, and I use my personal email for
personal business and never city business, so my phone shouldn't be discoverable. Let's hope not,
I can't guarantee that. If you want to be absolutely certain, you have one phone
for public business, one for private. It just kind of depends on
what evidence comes out and what the judge determines in
terms of whether or not there would be public records on that personal phone that
you're not disclosing. Tola, I think in the case that Mike was
talking about, the public official used his phone to make phone calls, not
necessarily send text messages. And the requester
wanted his phone records as to who he called because there was some
conspiracy or whatever. Anyway, so, you know, it's one thing about
email or the Facebook account or the city Facebook or whatever, but this one was
for phone calls. that involved city business on a private phone. And
he had to turn it over, basically. You know, so it does get a little,
you know, you'd think there was a constitutional protection against
seizure of property without any evidence of a crime, but the court seemed to suggest
that by being a public official and using your phone for public business, you're waiving
your constitutional rights in that area. And the cases are all over the ballpark across
the country. We don't have a final answer on this, but you need to be
cautious. Courts have found that email records
obviously are going to be public records. Metadata is a public
record. Texts are a public record. Data
on your hard drives are public records. These are all things that can
be discovered. There are certain exemptions,
but they certainly aren't things that you can unilaterally assert. I
don't think you should exempt or determine that something's exempt from a public record unless
your city attorney approves it with one exception, that probably being your police department, because
they deal with so many form records. and they are pretty well versed in the
law. But it's not a decision that a city employee should make.
Text, tweets, and blogs, they're all there. And those
are records that we need to be cognizant of. The record
management law is the flip side of this. You probably should, as a city, be
budgeting for records management and figuring out a way to
organize all of your records in a way that's consistent with the retention policies so
you can destroy them. There's been a lot of different approaches to this.
Most cities are trying to get everything as much as they can up on a
web or an accessible cloud type page
and I think that's probably ultimately the answer, but it's costly. And
the cities that I do public record audits of, the first question I ask is
I go to every department and say, give me a list of your hard copy
and your electronic files. And you start there.
And if you can't do that, then you have to start doing some
digging and organizing. So we need to know what we have or we end up
getting because we don't produce a record that's responsive. These are all the
statutes dealing with records management laws and disposal. And I'll just
buzz through those.
And it includes your website. That's a public record and has to be
backed up in a way that you can respond to public records requests. Email is
specifically addressed by WAC code provisions. The email retention options, and I
put this slide in just because all the cities are kind of all over the
ballpark on this now. Some cities still have employee discretion and employees are
deleting emails, you know, just on their own, which I think is incredibly dangerous.
Most cities have one server that saves everything, you know, a barracuda type setup.
And that's the safest because then if the individual employee gets rid of something, you
still have it. But that is cumbersome because it grows exponentially.
And you'll do a search of a word and you'll get 10,000 responses you have
to go through. Some cities are starting to set up files for email. and
having their employees, training their employees to move all their emails into specific files that
are consistent with the records retention schedules and then destroying them.
And there's two or three cities now that do that exclusively. I don't know if
it's working or not, but at least it's a way of starting to destroy emails
and not keep everything. You need a written email policy to
reduce the amount of emails and to not confidential and personal matters in email
if you can help it because if you do then that has to be reviewed.
The email policy, you have to have a consistent way of naming email. You need
to avoid string email. You need to not intermix personal and public. You need to
limit use of email and you need to limit meaningless responses. because every time you
do that, it creates a new email. You know, got it, thanks, love you. You
know, all the gratuitous responses. Every time you do that, it's another email. So there's
another thousand email you have to look at. So your policy should try to eliminate
those. Email destruction, again, has to be
pursuant to retention schedules, scheduled, memorialized, involving supervision and training. You know,
in this whole public records arena, The courts have pretty much told us that they're
not gonna back off even though it's incredibly expensive and there's been judgments that have
come near to bankrupt cities. So it's incumbent upon us to come up with a
way to budget for it and deal with it. Or there's incredible exposure and
there's no protection. Your insurance policies don't protect you for public records
problems. So you really need to, I think make it a priority
so that you don't get hit with a $400,000 judgment that you have to take
out of your general fund. Okay, that's
the end of my public records and my presentation.
I see we had one member that got here just in time. Well, she's going
to have to watch the video. of this presentation so that. Could you just go
over that quickly again? Sure. So that we can document the fact that. Barely I'm
incapable of doing anything very quickly. So if you have any questions I'd be glad
to stick around and answer your questions. The bottom line with public records is you
need to take them seriously because the judgments are, you know, the three to $500,000
judgments are not uncommon. And they're incredibly time intensive for your city clerk
and you know, I think the, the burden falls on the city clerks and it's
just, I think it's an unfair burden. It's way too much, especially if you get
some of these rogue requesters. They even have robo-requesters now that will send out email
requests by computer and then 10 minutes later send out the same request with the
dates changed and then 10 minutes later send out another request with the dates changed.
And you know, we have to be able to respond to those.
Mike, I want to thank you for You're very thorough. I have a quick question
for him, but I guess I'm supposed to come up here and speak here. Could
you just speak a little bit more on, I think everybody understands not sending an
email to, you know, say four, that's a quorum, but sending something out saying, hey,
you know, this is coming up, whatever, and they send it to one. And that
one next thing, you know, gets passed out to somebody else and then somebody else.
Well, I just would formalize email, regardless of whether your committee is, subject to the
open public meeting act or not, or if you're dealing with council, I would formalize
your communications. If you want to communicate with the council, I go through the clerk
and have the clerk submit it as part of your packet. And I do it
in a formal manner so that you don't have council members emailing each other. All
the state boards that I was on, like the PDC or executive ethics, we were
just prohibited from emailing one another. I mean, they just said, don't do it.
because you do it with one, they do it with another, they do it with
the fourth, and suddenly you may have a potential illegal meeting. And it makes sense
to funnel it through the clerk. Everybody gets the same information. Nobody can accuse you
of having the illegal meeting. The law does allow three of you to get together
and talk. So far that's been protected, and that was a lawsuit that I fought
in Spokane and we won, where the three council members had dinner. that was apparently
not a violation of the law. The other thing to keep in mind with public
records is there's no public talking law. We can still talk
and I'd encourage you to do that rather than writing it down. You know, it's
still okay to go down the hall and have a conversation and apparently we don't
have to record that and memorialize it yet, so. Are there any,
Last questions for Mike. Again, thank you for that very thorough
presentation. This satisfies the requirement that
everyone here has received the training. Other public
records requests in other organizations, in my case, Sound
Transit, as they ask, when I had
the, you know, this training. So it will be a matter of record. And Stacy?
I'll watch it. I know you will. I'll watch it. Mike, thank you very, very
much. Thank you. We're going to take a short break. Let's get started again at
five after for our next item on
our agenda, which will be an executive session. And I will announce the information
on the content of that, the authorization for that when we come back at five
after.
We're back from our break. Our next item of business, we'll now
move into executive session. We will be considering three items,
the first of which is elective bargaining agreements under the provisions of
RCW 42.30.140 paren 4 paren B.
The second item, potential property acquisition or acquisitions
under the provisions of RCW 42.30.110 paren 1
paren A paren B. and the third item under executive session
pending slash potential litigation, RCW 42.30.110
paren 1 paren I. It's expected that the executive
session will last one hour and there is the
potential that we will take action on executive session items discussed if needed.
And that will be done in open session. We'll now move to executive session
at 9.07. All right. So the
first one we're going to. Just a second. We are back in. Not of executive
session. Council
President Goodman. Thank you. I would authorize the city attorney make a motion authorizing the
city attorney to settle the Reed condemnation as discussed in executive session. Second. Moved and
seconded. Any discussion? Seeing none then, all those in favor of
Authorizing the city attorney to settle the Reed condemnation as discussed in executive
session signify by saying aye. Aye. Those opposed, that carries
unanimously. Council President Goodman. Thank you. I would
make a motion to authorize the administration to enter into a letter of intent for
the property discussed in executive session. Second. Moved and seconded. Any discussion?
Seeing none then, all those in favor of authorizing the administration to enter into a
letter of intent for the property discussed in executive session signify by saying aye. Aye.
Those opposed, that carries unanimously. There's no other business to
come before the council this evening. We are adjourned.