City Council Special Meeting · Monday, August 29, 2016 · City Council Digest

4. REGULAR BUSINESS

Council Goal Update: Public Engagement AB 7233

Carried 6-0

Authorize · packet pp.3–5

Open packet at p.3 ↗

Staff report:

Administration / Executive Department:

Public Officials Training: Open Government / Risk Management Fundamentals Hear Presentation AB 7237

packet pp.7–8

Open packet at p.7 ↗

Staff report:

Administration / City Clerk's Office:

Collective Bargaining Agreements RCW 42.30.140(4)(b)

Potential Property Acquisition(s) RCW 42.30.110(1)(a)/(b)

Pending/Potential Litigation RCW 42.30.110(1)(i) Session Action on Executive Session items, if needed

1294 segments .txt ↗

0:17 ↗ I was out of town too. I just got in a while ago. I'll call

0:23 ↗ to order the August 29th, 2016 City Council Special Meeting and ask

0:29 ↗ those who would like to join the council and myself in the Pledge of Allegiance

0:33 ↗ to please stand. I pledge allegiance to the flag

0:40 ↗ of the United States of America and to the republic for which

0:45 ↗ it stands, one nation under God,

0:56 ↗ Indivisible, with liberty and justice for all. Following the Pledge of Allegiance is a time

1:01 ↗ for audience comments. And I would just point out that citizen comments are an important

1:07 ↗ part of the public process. We take them seriously and factor them into the decisions

1:11 ↗ that we make. Anyone from the public desiring to comment will have the opportunity to

1:17 ↗ do so. Please direct your comments to the whole council and not individuals. It is

1:22 ↗ not a question and answer session. Please come to the lectern when recognized and speak

1:28 ↗ into the microphone. State your name, address, and any relationship to the city. Limit comments

1:34 ↗ to five minutes. If you have written comments, please submit those to the city clerk.

1:39 ↗ I would ask if anyone has signed up to speak this evening. No one has

1:43 ↗ signed up. Is there anyone in the audience desiring to speak? Yeah.

1:47 ↗ It's Lynch.

1:54 ↗ My name is Mary Lynch and I reside at 2690 Northwest Oakcrest Drive, Issaquah, Washington.

2:01 ↗ And I sent you all an email earlier basically stating my that I

2:07 ↗ support the agenda bill tonight, which would standardize the time and the place and also

2:12 ↗ televise the city council committee meetings because it's been a frustration of

2:18 ↗ mine and a lot of people over the last years that they aren't held at

2:22 ↗ the same time or televised and with the agendas not being made public early on

2:28 ↗ or at all and with minutes not being done of a lot of the meetings.

2:32 ↗ It's really been frustrating to be able to follow key issues that we wanted to

2:35 ↗ do. Some of the committees have been on task and have done that. Land insurers

2:41 ↗ has been very good about advance notices on what they're going to talk and then

2:46 ↗ also details of what's followed. But I do support that bill. That being said, the

2:51 ↗ main reason I'm here today is to reach out to the public and ask that

2:57 ↗ you all drive carefully this week. On Thursday will be the first day of

3:03 ↗ school for the Isquah School District and a lot of the other surrounding schools. And

3:07 ↗ would ask that everybody please slow down, do the speed limit or lower. get off

3:13 ↗ the cell phones stop texting turn the radios down and look for children that

3:19 ↗ are out there there's going to be a lot that's the first time that they

3:23 ↗ go to school or go to their new schools along second street we've got a

3:27 ↗ new school opening and there's going to be a lot of confusion there as parents

3:31 ↗ try and drop off their children and not knowing where they're going to go there's

3:34 ↗ still a lot of construction going on around the town and with all the through

3:39 ↗ traffic that's going through I would just ask that people slow down get off their

3:44 ↗ cell phones please pay attention and parents please talk with your children's about safety how

3:50 ↗ to safely ride your bikes to school how to cross the streets and to look

3:55 ↗ both ways and for those that are seen of bus yellow school bus if the

4:01 ↗ lights are flashing that means to slow down and stop not run and get

4:06 ↗ by the school bus. A lot of kids are running to the school buses, a

4:11 ↗ lot of them cross the streets. If you run those yellow lights, you're more than

4:15 ↗ likely to hit a child. And I would hope that that never happens in my

4:20 ↗ lifetime here. And so please slow down, stay back from the buses,

4:27 ↗ know your behavior will have impact on others and they're a lot more likely to

4:32 ↗ follow so please be safe and let's have a good school year thank you thank

4:37 ↗ you mary for that public service announcement and for your support of the

4:43 ↗ council goal update on public engagement

4:49 ↗ I'd like a brief announcement. Council President Goodman, who is not here right now, will

4:55 ↗ be joining us later. She has a council-related meeting that

5:01 ↗ she's attending, but she will be arriving once that meeting wraps up. Moving now to

5:07 ↗ Agenda Bill 7233, Council Goal Update, Public

5:13 ↗ Engagement. No other public comments? Oh,

5:19 ↗ is there any, all I saw was staff. Thank you for

5:26 ↗ keeping an eye on me, Paul. I appreciate that. But I will say, is there

5:29 ↗ anyone else in the public desiring to comment this evening? Second call and final call,

5:36 ↗ public comment is closed. Okay, moving now

5:42 ↗ to agenda bill 7233. This is an update.

5:48 ↗ update on the City Council developed a goal title public engagement

5:54 ↗ a purpose to improve council deliberations through timely public engagement.

6:01 ↗ Autumn Monahan, assistant to the City Administrator

6:07 ↗ for the staff presentation and update. Welcome. Thanks. So

6:13 ↗ tonight I'm here to provide an update on the Council goal which has three separate

6:16 ↗ projects. The first is to conduct quarterly meetings with Council Committee Chairs and the Communications

6:22 ↗ Team to discuss communications plans on significant issues. The second is to develop a plan

6:26 ↗ to better inform Council members on the City's dialogue involving social media. And the third

6:31 ↗ is to implement technology and operating plans to televise Council Committee meetings. So tonight I'm

6:36 ↗ here to provide an update on all three of those projects. The first is the

6:39 ↗ Communications Team will begin a meeting with Council Committee Chairs and Staff Liaisons this fall.

6:45 ↗ Secondly, we presented to you about our social media efforts earlier in August, and we

6:51 ↗ talked a bit about how we can best close the loop after we receive that

6:54 ↗ engagement online. There was one example the outreach received involving Go Issaquah. We overloaded you

7:01 ↗ guys with a lot of both positive and negative feedback and heard some feedback from

7:05 ↗ you that you would rather us provide those updates both at those council committee liaison

7:10 ↗ meetings and also adding some additional language to agenda bills where we can.

7:16 ↗ And the third is we'll begin televising all council committee meetings live on ICTV channel

7:21 ↗ 21 and the city's Ustream channel starting in October. Meetings would also be posted on

7:27 ↗ the city's YouTube channel and replayed on ICTV channel 21. There was one question about

7:33 ↗ whether there'd be an extra cost for us to live stream the council committee meetings.

7:37 ↗ We're charged through our vendor when we go over more than 100 viewing hours per

7:41 ↗ month. Typically we've got about 48 hours per month right now of viewing, so I

7:45 ↗ think we'll be okay. We've gone over three times in the past three years. It

7:50 ↗ was for streaming salmon days. the Talis Hillside Movement. I have to look back on

7:56 ↗ what the third one was. So to televise these meetings, staff recommends that we host

8:02 ↗ all council committee meetings here in council chambers. The room would be set up similar

8:06 ↗ to a council work session. There's several benefits. One is there's no extra capital costs

8:10 ↗ for installing new equipment in other rooms such as the Eagle Room. The council chambers

8:14 ↗ offers the best production quality because we already have a professional AV system installed here.

8:20 ↗ and all meetings to be hosted in the same location at the same time, which

8:23 ↗ reduces confusion and enhances customer service for the public. As far as logistical changes, all

8:29 ↗ council committee meetings would start at 6.30 p.m., which allows us some time for setup

8:33 ↗ following municipal court. The infrastructure and services and safety committee meetings would have to change

8:39 ↗ their location here to council chambers, and any special or rescheduled Council committee meetings would

8:45 ↗ have to take place on a very limited basis, which is contingent on the availability

8:49 ↗ of the council chambers on the second or fourth Wednesday of the month. So we

8:52 ↗ won't have as much flexibility. This plan could be implemented starting in October with the

8:58 ↗ exception of the services safety meeting, which could begin in November. We have budgeted about

9:03 ↗ $25,000 as part of this goal to help televise council committee meetings. Because

9:09 ↗ we're finding a cost savings and actually hosting everything here in council chambers, staff proposes

9:14 ↗ using that money this year instead to buy some wireless microphones. You probably have noticed

9:20 ↗ the mass amount of labyrinth of wires and setup that's required when we have a

9:26 ↗ meeting here on the floor and some wireless microphones would really help reduce the staff

9:30 ↗ time and setup. And if we're moving all council committee meetings here, we're having a

9:33 ↗ meeting in this room three or four times a week. So it's a heavy burden

9:39 ↗ for staff. Additional staff time is estimated about $600 per month, which we can cover

9:44 ↗ this year through the cable TV fund. And then we will also include ongoing staff

9:49 ↗ costs in the proposed budget for 2017. And finally, there was a question about enhancing

9:54 ↗ the quality of how our presentations appear on video. There's a few issues to bring

9:58 ↗ up. One is that Comcast shows ICTV only in standard definition. We do tape

10:04 ↗ everything in high definition, which you can see on our YouTube channel or when we

10:07 ↗ stream live, but not through the TV channel. So we can bring that up maybe

10:12 ↗ with our next franchise agreement with Comcast. This is also a good reminder to remind

10:16 ↗ staff that when they're building presentations to make sure that you're able to see them

10:20 ↗ on TV because that's where a lot of, most people are viewing them is via

10:25 ↗ ICTV or our live stream. So with that I'm here to answer any questions. Are

10:30 ↗ there questions? Council Member Winterstein. Thank you. Autumn, you just touched

10:36 ↗ upon the video quality, especially if there's a projection on the screen. So it is

10:42 ↗ notably pretty poor watching from home. So, but you just dropped

10:48 ↗ the comment of we can bring that up, our next franchise agreement with Comcast.

10:55 ↗ Did I hear that correctly? Yes. So talk a little bit more about that. What's

11:00 ↗ the timing? Is that really our only option? I'll introduce. So I'll introduce Tim Smith

11:05 ↗ who is our TV coordinator and he can give you a better explanation about franchise

11:10 ↗ agreements. So we're in the seventh year of a 10-year franchise agreement.

11:17 ↗ And basically Comcast right now gives us a standard def. I mean, we can make

11:21 ↗ the ask now if we want to. But it would be part of a negotiation

11:27 ↗ process. OK. So my observations are it's not a difference between standard and high def.

11:33 ↗ It's just sometimes look at them and they're very difficult to see. I never really

11:37 ↗ thought of it as that kind of difference. Are you aware of what I'm, have

11:41 ↗ you seen that? I know what you're talking about. And sometimes it's the PowerPoint itself.

11:47 ↗ Sometimes the font is so small, it doesn't really matter what, because we're getting a

11:52 ↗ direct feed from the system to our AV system and that goes out. So it's

11:57 ↗ just a direct line. So, okay, so I think, so standard

12:03 ↗ versus high def, yes, it would be better, but I'm more concerned about just the

12:06 ↗ quality of what is viewable, whether you're streaming it or someone's watching it

12:12 ↗ on TV 21. So if there are specifications to which some

12:18 ↗ type of visual should be built to maximize its rendering quality, then

12:24 ↗ please let us know what that is. some investigation needs to be done.

12:31 ↗ Because many times, it's a pretty effective media to be able to communicate complex ideas

12:37 ↗ and to guide a conversation. If it's not viewable, then then that's not good. So,

12:42 ↗ I mean, do you have any ideas? Is that possible? Do you think maybe there's

12:45 ↗ some specifications to resolution in which you build it, font size? It always seems to

12:50 ↗ me there's some mismatch between what you're expecting and what's being rendered. Yes, there is.

12:55 ↗ There's font sizes and utilizing larger map pieces instead of trying to to televise a

13:00 ↗ whole entire map, maybe it's sections. So there's plenty of things, guidelines that we can

13:04 ↗ create to help guide staff. So we run into that a little bit less. Well,

13:08 ↗ I would ask then you just maybe look at, because it's not just a matter

13:10 ↗ of zooming in and creating bigger fonts. It's just the quality of the image is

13:14 ↗ poor. The lines aren't sharp or anything. So I would say sometimes it can be

13:18 ↗ very, very difficult. So I would really appreciate, because I think that's a very effective

13:23 ↗ thing. And now that all our committee meetings, by the way, this is definitely something

13:27 ↗ that council wanted to do. and improving engagement is just one of multiple steps that

13:33 ↗ we're trying to do. And so, yeah, being able to make the most of that

13:38 ↗ media would be very important. Other questions? Council

13:44 ↗ member? Council member Polley. Thank you. It's for Tim as well. Paul, when you're talking,

13:49 ↗ I'm thinking of the setup that they have in the PSRC meeting room downtown where

13:53 ↗ they use large monitors instead of projection screens and then they capture the video of

13:59 ↗ the monitor versus a projection screen. That was kind of where I was wondering if

14:03 ↗ it was headed, if there was equipment or something that we could do so that

14:08 ↗ we're not showing it on the old style projection screen. Right. Well, the feed

14:14 ↗ that you're getting in here is not affected by the feed. They're sent the same

14:20 ↗ resolution. So if you don't see it up here, it's the presentation. It's not

14:26 ↗ the projector. So what you're seeing on video is not this camera recording what you

14:31 ↗ see on this screen. There's a direct feed. We're getting a direct feed, yeah. It's

14:35 ↗ a direct input. Thanks. Other questions or comments? Seeing none then. Autumn?

14:44 ↗ tim thank you very much we'll now move to uh agenda bill 7237

14:50 ↗ public officials training uh the open

14:59 ↗ these august 29th meetings are hard they're hard oh there's the motion to authorize

15:06 ↗ actually fred i'm sorry mr mayor i have one more question that's okay i didn't

15:10 ↗ realize that we were going all the way to the end right away. Autumn, I

15:14 ↗ had emailed a question this afternoon too. You'd sent out a second email with a

15:18 ↗ table in it that talked about social media. Was that supposed to be a part

15:22 ↗ of today's presentation or just additional information? It's additional information that recapped the questions we

15:27 ↗ heard from Council Committee earlier, or from the work session earlier this month, and I'm

15:31 ↗ working on the rest of those numbers for you. Okay, thanks. Awesome. Thank you, Mr.

15:35 ↗ Mayor. I have a question. And this is, it's not really clear to me because

15:41 ↗ the recommended motion that was included with the bill was just keep on keeping on.

15:49 ↗ There's not a specific ask. It was, or, so I'm, what is it, what

15:55 ↗ legislative action is required as part of this bill? Who

16:00 ↗ authorized us to proceed with the engagement plan that was submitted. to televise

16:07 ↗ council committee meetings.

16:09 ↗ Beginning

16:16 ↗ in October to have those meetings all begin

16:22 ↗ at the same time and to have those in the

16:28 ↗ council chambers with a set up similar to Council work

16:33 ↗ sessions. Yeah, so thank you. Maybe should have been more clear. I mean obviously there

16:37 ↗ was those kind of logistical details But I believe we had already appropriated the

16:43 ↗ money for it. So this is not an appropriation It's not an appropriate. This is

16:47 ↗ just logistics and make the change logistics. Okay. I just want to make sure everybody's

16:51 ↗ clear about that because even It kind of says expenditure

16:57 ↗ required and budgeted but there's really not an ask and because we already appropriated it

17:02 ↗ in the 2016 budget. Okay. It's not anything additional. Okay. All right. Well,

17:08 ↗ it's kind of, if I may then, I would actually move to authorize and proceed

17:13 ↗ with the public engagement plan, the details of which were presented this evening and existed

17:18 ↗ within the agenda bill as presented. Second. Second. Moved and seconded. Questions or discussion?

17:28 ↗ Seeing none then, all those in favor of authorizing the administration to proceed with the

17:33 ↗ public engagement plan as cemented and outlined in the agenda bill signify

17:39 ↗ by saying aye. Aye. Those opposed, that carries unanimously.

17:46 ↗ I'm gonna look and see if there's an action for the next one. Okay, our

17:52 ↗ next item, agenda bill 7237.

17:58 ↗ public officials training. The Open Government Trainings Act was enacted by the

18:04 ↗ state of Washington in 2014 to improve trust in government and help prevent

18:10 ↗ costly lawsuits by requiring local agency staff and elected officials

18:16 ↗ take certain required training. Specifically, the act requires periodic training

18:22 ↗ on the Open Public Meetings Act and the Public Records

18:28 ↗ Act. Tonight's presentation is sponsored by

18:34 ↗ the City's Risk Management and Self-Insurance Pool, the Washington City's Insurance

18:40 ↗ Authority, whose mission is to take a leadership role to provide professional

18:45 ↗ risk management and stable risk financing programs that respond to

18:51 ↗ customer needs. So with that, Tonight's presentation will

18:58 ↗ be by attorney Mike Conley from

19:03 ↗ WCIA. And are you gonna kick it off, Mary Lorna? Yes. Thank you.

19:09 ↗ So hi, I'm Mary Lorna Mead, the risk management officer of the city of Issaquah.

19:13 ↗ Just gonna introduce Mike. Mike Conley has been practicing law since 1991.

19:20 ↗ He's a graduate of Gonzaga University School of Law in 1981. He has

19:26 ↗ his practice covers all aspects of municipal law. He's had over 10 years experience as

19:31 ↗ the city attorney for the city of Spokane and Spokane Valley and 19 years experience

19:36 ↗ in private practice representing municipal organizations. He lectures extensively and provides training on the

19:42 ↗ regulation of land and land use and development, the review and revision of development codes,

19:48 ↗ public record retention and disclosure, all aspects of governmental operations including compliance with ethics

19:54 ↗ rules and the Oakland Public Meeting Act. Mike is also an adjunct professor at the

19:58 ↗ Gonzaga Law School teaching trial advocacy and administrative law and is the recipient of the

20:04 ↗ Outstanding Service Award from the Washington State Attorney of Municipal Attorneys. He's also

20:10 ↗ served as the Washington State Executive Ethics Board Chair and Member in 2008 to 2010,

20:16 ↗ Washington State Public Disclosure Commission Chair and Member 2001 to 2006, and the

20:22 ↗ Hearing Examiner for City of Airway Heights in Washington from 1995 to 2000. So he's

20:27 ↗ very well versed in everything we'll have him help explain to us tonight. So Mike,

20:32 ↗ welcome. Thank you, Mary Lorna. And Mike, welcome.

20:38 ↗ certainly very fortunate this evening to have someone with your background and experience talk about

20:43 ↗ this important topic well thank you um

20:50 ↗ first thing i have to do is um set up for slideshow is there a

20:54 ↗ mouse there we are okay

21:00 ↗ okay let me just make sure this advances

21:11 ↗ Okay, I think I've got it. Okay, okay, technical stuff has been

21:17 ↗ handled. I appreciate being here when we were doing

21:24 ↗ the flag salute. My thoughts initially went to how many different cities in

21:29 ↗ Washington that I have sat at the beginning of council meetings and done that very

21:35 ↗ same thing. And I think it's probably 20 or 30 now, but it's, You

21:41 ↗ know, it's a tribute to local government and the importance of

21:46 ↗ local governmental bodies like this council. You know, it's a very

21:52 ↗ sometimes difficult and frustrating process, but it's also

21:58 ↗ the process that has the biggest impact on people's lives. You know, we get to

22:03 ↗ the state and the federal level and they may have an impact, but it's not

22:07 ↗ near as direct as the impact that you have. And as elected officials, you're given

22:13 ↗ substantial powers. You've got the power to tax. You can take people's money.

22:20 ↗ You can restrict the use of land. You can prohibit uses of land.

22:27 ↗ You can create and impose design guidelines. You can preserve historical buildings.

22:33 ↗ You can provide services, or not provide services. And you can really set

22:40 ↗ the tone and the character of your city. I mean, that's all

22:46 ↗ within your power. And because you're granted powers to interfere with

22:52 ↗ a person's property and liberty,

23:00 ↗ the law also requires that you exercise that power

23:06 ↗ According to some pretty specific rules and procedures So on the one hand it gives

23:12 ↗ you a lot of authority and power And on the other hand it says but

23:16 ↗ if you're gonna do it you have to do it in this fashion and in

23:22 ↗ the state of Washington the Authority and the limitations on that

23:28 ↗ Authority differ a little bit depending how you're organized and that's where we're

23:33 ↗ gonna start and is with the organizations of cities in the state of

23:39 ↗ Washington. And if you have questions at any time, just interrupt me and

23:45 ↗ ask your questions. You know, I hopefully will end this with you feeling like you've

23:51 ↗ learned something and not just had a whole bunch more questions created that you don't

23:55 ↗ know the answers to. The cities and towns are organized in a number of different

24:00 ↗ ways in Washington, and this has evolved. We have first-class cities like Seattle and

24:06 ↗ Spokane that are charter cities Second-class cities which are few and far between

24:12 ↗ now most second-class cities have converted to another form of government But some still exist

24:18 ↗ and they have specific limitations We have towns that really have a whole different set

24:23 ↗ of rules. They're set up differently. They have different responsibilities that are

24:30 ↗ based upon the fact that they're small and And that often everyone knows everybody or

24:35 ↗ is related to everybody within the town And then we have code cities and code

24:40 ↗ cities were an attempt to really unify and uniform make uniform the

24:46 ↗ rules that governed how you would operate And exercise this

24:52 ↗ authority The code cities

24:59 ↗ Are set up under 35 a 11 and and it establishes the rights, powers, and

25:04 ↗ privileges. It also defines your authority, so the legislative body

25:10 ↗ has specific authorities as defined by statute. And in your case,

25:16 ↗ the type of code city is the mayor council form of

25:22 ↗ government. And there's a specific set of rules that govern that, and we'll talk about

25:27 ↗ that in a little bit. There are some general powers that are granted to

25:33 ↗ all code cities. You can act in concert with other municipalities. You can enter into

25:38 ↗ agreements with counties and other cities or other municipal districts. You

25:44 ↗ are conferred the greatest power of local self-government consistent with the

25:50 ↗ Constitution, which allows you to make really any law that you think is necessary to

25:56 ↗ protect the public health, safety, and welfare as long as there isn't another law that

26:01 ↗ says you can't. And that has been interpreted as being a very broad grant of

26:06 ↗ power. I think Hugh Spitzer just wrote an article for MRSC confirming at

26:12 ↗ least his view of that as being a very broad grant of power so you

26:16 ↗ can do whatever you want unless there's a statute or constitution that says you can't

26:20 ↗ do it. And of course we fight about that a little bit as to whether

26:24 ↗ or not one exists. You can participate in all the Economic

26:30 ↗ Opportunity Act programs as a code city. And often the

26:36 ↗ economic opportunity programs allow you to give money for economic development.

26:42 ↗ And code cities can fully participate in that. You can provide for initiative and referendum

26:49 ↗ if you choose to. So the citizens can both initiate legislation

26:55 ↗ through a petition process or they can put what you've done to the vote of

27:00 ↗ the people through a referendum process. And you can allow members to serve on volunteer

27:06 ↗ firefighters, reserve law enforcement members to receive compensation, specific general

27:11 ↗ powers that are granted to the city.

27:18 ↗ Three different ways you can organize as a code city is you could be a

27:22 ↗ charter city. So you could write, have a constitutional

27:28 ↗ committee, write a charter and submit that charter to a vote of the people. You

27:33 ↗ can be a mayor council plan of government where the mayor is a chief executive

27:38 ↗ officer and the council is a separate body, though the mayor does chair the meetings.

27:44 ↗ Or you could have a council city manager form of government where the council

27:50 ↗ legislates, hires a city manager, and the city manager does all the administration of the

27:55 ↗ city. And it's important to

28:01 ↗ be familiar with the specific chapter that talks about your form of government, and if

28:07 ↗ you haven't, I'd encourage all of you to go to 35A 12 and 11,

28:13 ↗ but 12 is the specific mayor council form of government and just take a look

28:18 ↗ at it and see what the rules and the regulations are. Because those are

28:24 ↗ the rules that tell you what you can and what you cannot do.

28:32 ↗ These are the duties of the mayor. And it's important to understand that the

28:38 ↗ duties of the mayor in a mayor council form of government are pretty expansive. And

28:43 ↗ they're, the chief executive officer type duties. So

28:49 ↗ you're the chief executive and administrative officer of the city in charge of all

28:54 ↗ departments, you designate assistance, you report to the council, you make recommendations to the council

29:01 ↗ and you prepare and submit a budget to the council. The mayor also has the

29:07 ↗ ability to vote if there is a tie on the council

29:13 ↗ and that's it. Exists in most circumstances where a supermajority is not

29:18 ↗ required and the mayor has a veto power that is subject to being overturned By

29:24 ↗ a supermajority of the council So the mayor has some real specific duties

29:30 ↗ But they're primarily administrative duties and you'll see that type of

29:35 ↗ Responsibility in the mayor in charter cities. It's kind of mirrored in a lot of

29:40 ↗ the charter cities where they give the mayor very similar powers and The difference between

29:46 ↗ charter cities and a mayor council form of government is that the mayor Is at

29:52 ↗ the meetings runs the meetings and can vote in a place of a tie You

29:56 ↗ won't see that as much in the charter cities, but again those are the manners

30:00 ↗ in which you exercise your authority and The real important part of that

30:07 ↗ for the members of the council is you can't do the mayor's job and

30:13 ↗ collectively or individually that's not your job and when

30:19 ↗ individual council members start doing the mayor's job and interfering in personnel issues or

30:25 ↗ trying to give direct orders to members of the city that's where we get lawsuits

30:32 ↗ and that's where the employees sue and we end up in in hot water so

30:36 ↗ it's real important that everybody has a clear understanding of what their role is and

30:40 ↗ they try not to do a role that's not assigned to them.

30:47 ↗ The powers of the council are defined under 35A 12190.

30:53 ↗ And essentially, again, you have all legislative powers. So you can do all those things

30:58 ↗ that I talked about at the beginning of my presentation. You can tax, you can

31:04 ↗ create zones, you can draft comprehensive plans, you can limit uses, restrict uses,

31:11 ↗ establish design guidelines, protect historical districts, provide services, those are all

31:17 ↗ within your power to act by ordinance. And it is really a tremendous power,

31:23 ↗ but it's a collective power. Your authority as a council is collective as a

31:28 ↗ body. Your authority as an individual is pretty nonexistent.

31:34 ↗ And again, that's where the problems arise is when individual council members

31:40 ↗ start taking actions that may have an impact on someone's person's liberty or property

31:47 ↗ and that's where we end up in the big lawsuits where the the developer sues

31:52 ↗ for the tortious interference in his business expectations and gets the nine or ten million

31:57 ↗ dollar verdicts and of course that's one thing the city or the city's insurance company

32:03 ↗ is always concerned about

32:10 ↗ The officers of municipality, that's you, have only such powers are confirmed

32:15 ↗ upon you expressly or by necessary implication. And this again

32:21 ↗ goes back to the limitations of your authority. Now the Constitution is pretty broad. And

32:28 ↗ code cities by statute are pretty broad. But you want to look

32:34 ↗ for a specific delegation or a specific expression of that power before you act.

32:40 ↗ When I have a planning commission come to me, or they'd come to Wayne, or

32:45 ↗ a planning department would come to Wayne and myself and say, can I do this?

32:50 ↗ My answer always is, where does it say you can? And if they can't point

32:56 ↗ to an ordinance, statute, or writing of some kind that provides them the authority to

33:01 ↗ do that, then the answer is probably no, you can't do that. So we're always

33:05 ↗ looking for the specific authorization to act whether we're a department head or a

33:11 ↗ council or a mayor you can accept donations

33:18 ↗ cities are allowed to accept donations which is a good thing somebody can give you

33:23 ↗ a park or a building or a street or you know they can donate things

33:28 ↗ to the city you can't individually accept donations the city can

33:34 ↗ accept them you can't and we'll talk about the ethics rules in a little more

33:37 ↗ detail The last thing is you can purchase liability insurance,

33:44 ↗ and you have through WCIA. But the important thing to remember there

33:50 ↗ is it will allow you to be insured for damages

33:55 ↗ arising from your acts or omissions while performing or in good faith purporting to

34:01 ↗ perform your official duties. And that goes right back to what we started at

34:09 ↗ that we started talking about at the beginning. You need to act within the scope

34:13 ↗ of your official duties, and if you start drifting from that and going on

34:20 ↗ a mission because of a personal interest you have, then not only will you

34:26 ↗ put the city at risk, but you may put yourself personally at risk. The city

34:31 ↗ of Spokane had a circumstance where they zoned an area, a multi-family,

34:38 ↗ an owner of property within the multifamily area submitted a permit for a

34:44 ↗ grading permit because he wanted to start preparations for a high rise apartment.

34:51 ↗ And the neighbors were all upset because the road in their mind was inadequate

34:57 ↗ and the intersection onto the state highway was dangerous. And so they came down to

35:03 ↗ the council and called the council and made their feelings known. And the council

35:09 ↗ instructed the city manager to put it on the agenda, this grading permit that normally

35:13 ↗ was done ministerially by the building inspector or the building official. And then the

35:19 ↗ council denied the building permit, or the grading permit, and said, no,

35:25 ↗ we're gonna have to look into this more. And one of the council members made

35:30 ↗ the unfortunate comment to the effect that, well, if they sue us, we

35:36 ↗ can go ahead and issue it. And that got into the record and was cited

35:41 ↗ by the court. You know, that turned into a huge lawsuit because the council started

35:47 ↗ doing something that was an administrative ministerial duty that was done by the building official.

35:53 ↗ And they had the best of intentions. They were trying to prevent an unsafe condition,

35:57 ↗ but they zoned the land multifamily. Once they did that, you know, then it was

36:02 ↗ really just a compliance issue. You know, does the permit comply with the existing laws?

36:07 ↗ So they crossed the line. The court specifically found each of the council members

36:14 ↗ personally liable for any damages that resulted from that action.

36:20 ↗ And you know, that's an extreme circumstance. Their lawyer had said, don't do this. It's

36:25 ↗ not legal. They said, well, doing it anyway. If they sue us, we can change

36:29 ↗ our mind. But it's a real clear example of going beyond

36:36 ↗ the scope of your authority and the not performing your official duties. And in

36:41 ↗ that circumstance, a claim could have been made that they were not covered under the

36:46 ↗ insurance policy. A claim could have been made by the city that they were not

36:52 ↗ covered by the city's indemnification policies. And there would have been personal

36:57 ↗ exposure or liability. So just be cautious about that. And if you ever feel like

37:02 ↗ you're on that line, you need to have the conversation with your city attorney and

37:06 ↗ then follow his guidance. Okay, ethics.

37:14 ↗ You have two layers of rules that govern your ethical behavior. One is

37:20 ↗ statutory and the other is the ethics rules that you have adopted.

37:26 ↗ The statutory ethic rules really have three parts. The first is

37:32 ↗ that you can't receive any compensation or gratuity in connection with a

37:38 ↗ contract from a party beneficially interested in that contract. So if the

37:44 ↗ local Ford dealer says, you know, I want to bid to

37:51 ↗ provide your fleet of police cars and also says, and as a

37:57 ↗ special incentive, I'll give all of your elected officials a special double discount

38:03 ↗ on a Ford of their choice then you will have received something of value from

38:09 ↗ someone who's beneficially interested and you can't do that. So you need to be real

38:15 ↗ cautious when the city is contracting with parties that you're not in some

38:21 ↗ manner benefiting from that contract. The second one is a little more broad

38:27 ↗ and that really prohibits you from receiving anything of value

38:34 ↗ from a source other than the municipality because you're a

38:40 ↗ public official or an elected official. So let's say a

38:45 ↗ developer comes to town and just wants to talk to you about general issues

38:51 ↗ relating to his development. And he wants to take you out to dinner and

38:57 ↗ just talk. Can you let him buy you dinner? Probably not.

39:04 ↗ Now I know in your ethical rules, you have that $50 or under for functions

39:10 ↗ that are related to your official capacity. And I would see that as a group

39:15 ↗ type function, a seminar. I would not see that as an individual that was trying

39:21 ↗ to curry favor with the council. So I think the best practice is you don't

39:27 ↗ take anything from anybody because you're a council member, a mayor, or a city official.

39:36 ↗ You know, you certainly can get gifts from your friends that have nothing to do

39:39 ↗ with your role on the council, but I'd be real cautious about taking anything of

39:44 ↗ value because you're a council member. You know, and there's a lot of different dodges

39:50 ↗ that people use to get past that that may or may not work. You know,

39:56 ↗ the bond lawyer comes to town and takes all the city attorneys out to dinner

40:01 ↗ at a fancy restaurant and perhaps the mayor as well. and

40:08 ↗ when he says i'll go ahead and get dinner and everybody says well we'll get

40:11 ↗ the next one you know you know kind of acting like it's going to be

40:16 ↗ a even deal it's not it's not going to work that way so you really

40:21 ↗ have to be cautious about that when i was working with governor lock and when

40:27 ↗ i would travel with him the one thing i noticed is that he never let

40:32 ↗ anybody even buy him a cup of coffee ever Nobody bought him

40:37 ↗ anything. And I think in some ways, especially if you're an elected official, that's probably

40:42 ↗ the best rule to follow. So the ethics provision

40:49 ↗ is relatively clear for cities and towns. And it really says that you're not supposed

40:55 ↗ to take anything because you're a public official from anybody other than the municipality itself.

41:03 ↗ know a lot of times at christmas people get gifts and they put it in

41:06 ↗ the lunchroom for the city as a whole i guess you could consider that a

41:10 ↗ donation to the city not to the individual but i would just be cautious about

41:14 ↗ that finally you can't use your permission to secure a special privilege

41:20 ↗ for yourself or others mayor calls public works

41:26 ↗ director my son needs a job this summer can you make that happen

41:32 ↗ probably a violation of this statute. Any self-dealing or using your

41:39 ↗ position to know ahead of time that something might be happening in the area of

41:42 ↗ land use and then making purchases to benefit yourself, probably a violation of this statute.

41:50 ↗ The second half of this statute is you can't disclose confidential information gained by

41:55 ↗ reason of your position. So if you're privy to employment matters, in

42:01 ↗ executive session that is confidential information, you can't

42:06 ↗ disclose that. If you're in an executive session dealing with a matter of litigation or

42:13 ↗ real estate and you receive confidential information because of your position as a council member,

42:19 ↗ you can't disclose that. It would be a violation of your ethical provisions to do

42:24 ↗ so. If you're in a position where there's a lot of discord on your

42:30 ↗ council and you don't like what's going on in executive session,

42:36 ↗ my recommendation is you don't go as opposed to disclosing what happened

42:42 ↗ during executive session because one is a clear violation. As a body, a council

42:48 ↗ can also say, no, we're not going to go into executive session. They have that

42:51 ↗ right. Generally that means you're not gonna get the information you might need to make

42:57 ↗ a good decision. But be cautious about never disclosing information that

43:03 ↗ you receive because of your position, because that would be a clear ethical violation.

43:10 ↗ If you look at your ethics rules,

43:16 ↗ they pretty much mirror the statute. They add in the 4217 prohibitions.

43:23 ↗ that aren't listed on this slide, and those are the prohibitions about using public funds

43:28 ↗ for campaign purposes or using public facilities for campaign

43:34 ↗ purposes. And when I was on the PDC, again and again, we had problems

43:40 ↗ with that where people would use public facilities, computers,

43:47 ↗ vehicles, uniforms, to promote their campaign and they would be in

43:52 ↗ violation of the 4217 prohibitions. So you can't

43:58 ↗ use your city email to do blanket emailings that say elect me

44:05 ↗ or come to my campaign party or let's get together and do an organizational meeting.

44:11 ↗ That has to be done separate and apart through your own private campaign committees. You

44:17 ↗ can't use public facilities to promote bonds or initiatives

44:23 ↗ that you may be sponsoring as a council. You can provide information about them

44:29 ↗ through certain channels, but if you want to promote an upcoming elected bond

44:34 ↗ issue, that has to be done through a separate committee. That can't be done through

44:40 ↗ the city's facilities. Now anybody, if you have a

44:46 ↗ policy allowing the use of your facilities like an auditorium or

44:52 ↗ a meeting hall could rent that for political purposes as long as it was open

44:57 ↗ for all and you didn't give special deals to the ones that you were in

45:01 ↗ favor of. But you have to be very careful to keep public facilities to

45:08 ↗ be separate from political ventures. And the reason for that is real simple. The voters

45:14 ↗ own the facilities, they don't all support the same candidate. and you're disenfranchising

45:20 ↗ somebody if you're using public facilities to support one side or the other. So you

45:25 ↗ really need to keep that separation.

45:32 ↗ The policy also talks about public records, which we'll talk about in a couple of

45:37 ↗ minutes. It talks about conflicts of interest and

45:43 ↗ I would just spend some time going through your own policy. It really does mirror

45:47 ↗ the statute. It does have some exceptions to gifts.

45:53 ↗ And the $50 value exception is item number two under B.

45:59 ↗ And it says accepting a meal, food items, or event tickets of moderate value when

46:05 ↗ provided in conjunction with the conduct of city business, or where official attendance

46:11 ↗ by municipal officer employee as a staff representative is appropriate. And I would

46:17 ↗ read that very narrowly. If it's the type of activity that the council as a

46:24 ↗ whole is invited to and attendance is somehow germane to them doing their

46:29 ↗ job, where they're gonna learn something about being a public official, then that probably makes

46:35 ↗ sense. You know, you go to an AWC, or whatever than that, I mean, the

46:40 ↗ buffets they put on are extraordinary. So if you don't go to the AWC's,

46:46 ↗ you should give them a try, they're pretty good. But I think that makes sense,

46:52 ↗ but if, as it happened in Spokane, a private outfit

46:59 ↗ of developers and other economic interests had a

47:05 ↗ fancy dinner and a private viewing of the Lion King. before it actually was gonna

47:11 ↗ be, it was the play, not the movie. And it really provided absolutely

47:17 ↗ nothing to public officials about governing. It was just a

47:23 ↗ free dinner and free theater performance. And it was given to them solely because they

47:29 ↗ were elected officials or public officials. And I had one mayor ask me, well, can

47:34 ↗ I go to that? And I said, well, I don't think so. I don't see

47:36 ↗ anything on the agenda that has anything to do with being council member or mayor

47:41 ↗ or anything else and the particular mayor's response was well that was that's

47:47 ↗ just your opinion right and I said yeah that's just my opinion so you know

47:52 ↗ there's gray areas you're gonna run into here but I would err on the side

47:57 ↗ of not crossing that line because it looks like people are buying your

48:03 ↗ vote their influence peddling and at the local level

48:10 ↗ I think it's real, you have to be very careful that that's not occurring. If

48:15 ↗ you look at the rules for state employees, the ethical rules for state employees, they

48:20 ↗ have a whole laundry list of things that they can accept. It's a little more

48:27 ↗ open and allows them to accept flowers and candies and other things, but we don't

48:32 ↗ have those exceptions in 4223 for local officials. And I think the reason we don't

48:38 ↗ have those exceptions is because we're small communities. And they don't want there to be

48:43 ↗ any inference that there is any inference or influence peddling.

48:51 ↗ Okay, any questions about ethics? Okay, I'll assume we're all

48:58 ↗ highly ethical. There are penalties if you violate the ethics rules.

49:04 ↗ I've never seen anybody let away in handcuffs. It just was a good visual. So

49:09 ↗ I haven't seen that happen. But you can be subject to a penalty in the

49:13 ↗ amount of $500. You could be in a position where you would forfeit your office

49:19 ↗ if you're convicted of a crime. You could be subject to recall if

49:25 ↗ you are guilty of malfeasance or misfeasance. And the Supreme Court has been a little

49:31 ↗ loosey-goosey determining exactly what that is so

49:37 ↗ again if you violate the ethics rules that could be the end of your political

49:42 ↗ career because it could be a ground for a recall or it could be a

49:47 ↗ forfeiture of office if there's an actual conviction so you want to be careful of

49:52 ↗ that one of the issues that comes up

49:58 ↗ when a council and a mayor or staff council and mayor

50:04 ↗ Are at odds is they all go to the city attorney and say represent me

50:10 ↗ against him And so the the city attorney has a pretty strict

50:16 ↗ duty and it's really to represent the organization the entity

50:22 ↗ through its duly authorized constituents so if it's an administrative matter and

50:30 ↗ He's going to represent the person who's charged with administrative duties, which would be the

50:35 ↗ mayor or your city administrator. If it's a legislative matter,

50:41 ↗ something which the council is doing within the purview of their duties, then he's gonna

50:46 ↗ be representing the council. If there are individual questions as to how to be a

50:52 ↗ council member and what are the rules that I follow, then he would be representing

50:57 ↗ you in your capacity as council members. But it's,

51:03 ↗ you know, he represents the organization. And sometimes a city attorney

51:09 ↗ has to step back a little bit and, you know, say if we're going to

51:14 ↗ have a conflict between different parts of the city, then sometimes you have to bring

51:19 ↗ in other attorneys so that you can do that without putting the city attorney in

51:24 ↗ a conflicting position. One of the caveats that's been established by case law

51:31 ↗ if the council goes rogue and decides to get their own city attorney they better

51:36 ↗ win because if they lose there's no authority to pay that attorney they're on their

51:41 ↗ own so you know again if you do that you really you shouldn't do that

51:47 ↗ it never turns out well every circumstance i've seen in the state where we've had

51:52 ↗ multiple attorneys has been a nightmare and it turns out

51:58 ↗ costing everybody including the city money. So try to avoid that. Bring in a mediator,

52:04 ↗ talk to your city attorney, try to work it out. Because usually contested fights

52:10 ↗ within the city don't work. The

52:17 ↗ code cities can appoint city attorneys or hire contract attorneys. Other cities have a little

52:22 ↗ bit different rules that they have to follow. Your

52:28 ↗ rules of conduct as council members

52:35 ↗ adopt Robert's Rules of Order. And I wanted to just go through

52:41 ↗ them a little, just briefly to talk about some of the basic tenets of Robert's

52:45 ↗ Rules of Order. And interestingly, they were written by a guy named

52:51 ↗ Roberts, obviously, back in the colonial days when our government was just being formed.

52:57 ↗ and they're trying to come up with a set of rules and procedures to run

53:01 ↗ meetings. And so the Roberts Rules of Order were adopted by, written

53:07 ↗ by Roberts and adopted by many of our governmental bodies at that early date. And

53:12 ↗ if you go down to the library now and get the revised up-to-date Roberts Rules

53:18 ↗ of Order, it's written by a guy named Roberts, and he's a direct descendant of

53:23 ↗ the original Roberts that wrote the rules in the first place. and it's kind of

53:29 ↗ just carried on through all the ages. And if you look at the basic tenets

53:34 ↗ of Robert's Rules of Order, there really are just a couple general principles that you

53:39 ↗ need to be aware of. One, you talk about one thing at a time, and

53:45 ↗ that makes sense. If any of you have been part of a meeting where everybody

53:49 ↗ was talking about different topics, you never get anywhere. You give everybody

53:55 ↗ a chance to express opposing points of view So everybody has a chance to

54:01 ↗ express their opinion. You also should call for a negative vote. Don't just say all

54:07 ↗ in favor and then assume that's it. All in favor, all opposed, always call for

54:11 ↗ a negative vote. You can find debate to the merits of the pending question. That's

54:16 ↗ why you make a motion. Make a motion, you make a second, you talk about

54:20 ↗ that motion until you vote on it. And then you move on to the next

54:25 ↗ topic. And you can divide a motion up into several parts. It looks like the

54:30 ↗ members would be supportive of one part, but not another part. The rights of an

54:36 ↗ assembly or an organization are defined by a number of things. They're defined by

54:42 ↗ constitution, our rights of due process, equal protection. They're defined by

54:48 ↗ statute, where the statutes tell us what we have to do in our meetings.

54:54 ↗ They're defined by a charter. If you were a charter city, that would tell you

54:57 ↗ what the rights and responsibilities are. They're defined by council rules, and you have council

55:03 ↗ rules that tell you exactly how you're supposed to act, and you have to follow

55:08 ↗ those unless for some reason you want to change them, and then as a

55:13 ↗ body, you can change the rules. And the last source of

55:19 ↗ rights is custom and practice. and I'd be real cautious of that. A

55:25 ↗ lot of times when I'm involved in a lawsuit with a client and I ask

55:29 ↗ the mayor or the council, why did you do that? And the answer is, well,

55:33 ↗ that's the way we've always done it. That's a really bad answer because it may

55:39 ↗ be unlawful even if it's the way you've always done it. So try to make

55:43 ↗ sure your conduct is in conformance with your council rules, statutes, or

55:48 ↗ constitutional provisions, not just that's the way we've always done it. Because a lot of

55:54 ↗ times the way we've always done it is not lawful. You've got some basic rights

55:59 ↗ as members of a body to attend meetings, to make motions,

56:05 ↗ to speak and debate, and to vote. And under Robert's Rules of Order, if any

56:11 ↗ of those rights are being impaired in some fashion, then you're in violation

56:17 ↗ of the rules. A majority vote decides most decisions.

56:22 ↗ Certain things, declaring an emergency, spending money, borrowing money,

56:29 ↗ approving franchises would require a majority plus one.

56:35 ↗ Sometimes you may not have enough members to pass an item and even if you

56:41 ↗ have a quorum present, a quorum is the majority of members, it's

56:46 ↗ generally defined as The order of business in Robert's Rules is very close to the

56:52 ↗ order of business that you had in your agenda tonight. And it's formulated after that.

57:00 ↗ Motions are how you do business. You make a motion, a

57:06 ↗ member seconds the motion, the chair says, okay, here's what the motion is. So it's

57:11 ↗ clear, you debate it and then you vote on it. And then the chair announced

57:16 ↗ the results of the vote. know basic procedures and that keeps you to that topping

57:21 ↗ talking about one topic at a time you can have other motions to

57:27 ↗ postpone or table a matter you can have emotions for personal needs can we take

57:32 ↗ a break mr. mayor you can do a point of order if you

57:38 ↗ feel like it's time has passed and you shouldn't be debating an issue

57:47 ↗ You can call for a question. And the calling for a question occurs when you

57:53 ↗ usually have one or two members that just won't let it go, and they just

57:58 ↗ keep talking and talking and it's no longer productive. Then you can call,

58:04 ↗ another member can say, I'm gonna call for a question. And if that's seconded, and

58:09 ↗ two thirds of you vote for it, then the next action you take is you

58:13 ↗ vote on the motion. No more debate. It cuts off debate. So it's a

58:19 ↗ device that can be used. Usually isn't. But I've seen it used in divisive

58:24 ↗ councils where there was a lot of fighting. I had one council where my council

58:29 ↗ member would get up off the diaz, come down to the podium, and say he

58:33 ↗ was now being a citizen. And then he would speak, even though he wasn't

58:38 ↗ authorized to. And then he'd go back on the podium and he'd talk some more.

58:42 ↗ You know, I saw the... a question being called a couple times on that

58:48 ↗ particular council member. He also, I think, sued me about 16 times over the course

58:52 ↗ of three years. Pardon me? Was he a lawyer? Yes, he was. He was a

58:58 ↗ lawyer. You know, you can't trust the lawyers. But sometimes when

59:04 ↗ you have a divisive council, this is a divisive works. The other thing is be

59:08 ↗ careful about unanimous consent or do we have consensus on that? I had one

59:14 ↗ mayor that would just say, oh, do we have consensus on that? And there'd be

59:18 ↗ some nodding and then he'd move on and I'd say, wait, I said, I need

59:21 ↗ a vote. I need a record vote on this matter. This isn't a consensus item.

59:28 ↗ This was a motion that was on the floor. So be cautious about operating by

59:31 ↗ consensus for ordinances or motions or resolutions or things that need a record.

59:39 ↗ Even though it's kind of nice that you're all getting along and everybody agrees, Be

59:43 ↗ cautious of that. You know if you're going to figure out where the Christmas party

59:47 ↗ is going to be or Meeting date or something like that a consensus would work,

59:52 ↗ but if you're passing an ordinance resolution or motion then then do that more formally

59:59 ↗ Okay, any questions about Robert's rules if you want a more extensive outline

1:00:06 ↗ just send me an email I've got a about a 15 page detailed outline on

1:00:11 ↗ Robert's Rules and it gets increasingly boring the longer the outline gets. So I tried

1:00:16 ↗ to reduce it to a short number. But if you're a rules person,

1:00:22 ↗ then give me a call. We're glad to give you more detailed information on that.

1:00:28 ↗ So there's four areas where we get sued. Land use, there's been

1:00:35 ↗ A number of decisions in the nine and $10 million range, which

1:00:41 ↗ are horrendous and they're often a tortious interference type claim where a developer says you're

1:00:47 ↗ messing with them and acting outside the scope of your authority. There's personnel

1:00:53 ↗ and that often happens when elected officials decide they want to be human resource

1:00:59 ↗ managers or an employee goes to one council member says i'm not being

1:01:05 ↗ treated fairly and that council member then intervenes directly that's where we get into a

1:01:11 ↗ lot of personnel problems there's negligent misrepresentation that's the

1:01:16 ↗ over promising yeah we can do that for you no problem we'll take care of

1:01:22 ↗ that i'm sure we'll make sure that development happens individually you have no authority to

1:01:28 ↗ promise anything you can direct them to the You can direct them to the

1:01:34 ↗ staff member that handles the matter. You can tell them to come to a council

1:01:38 ↗ meeting and make their pitch to the council as a whole, but don't promise anything

1:01:43 ↗ individually and the mayor shouldn't promise anything individually. Defamation,

1:01:51 ↗ be careful about what you say from the Diaz. You have almost absolute protection until

1:01:55 ↗ you take off your legislative hat and start doing something different.

1:02:01 ↗ comments on people's personal reputation are never appropriate in your official

1:02:07 ↗ capacity. You know, the development might be consistent with our rules,

1:02:13 ↗ but I know this guy, he's a crook, and I don't think we should vote

1:02:17 ↗ for his development. You know, that could be slanderous, and often slander is not covered

1:02:23 ↗ by any insurance policy. Might not even be covered by your personal insurance if you

1:02:28 ↗ don't have an umbrella. So it's a dangerous practice to make

1:02:34 ↗ comments about people's character or reputation. And I just avoid it at all costs.

1:02:40 ↗ Public works is when you substitute your judgment for that of your trained engineering

1:02:45 ↗ staff and make a decision that's not based on AASHTO or

1:02:51 ↗ MUTCD standards, but based on what I think is right or fair.

1:02:59 ↗ A classic example of that that we had in one of my cities was we

1:03:03 ↗ had people turning left across a double line

1:03:09 ↗ into a business, a couple businesses, and they were being t-boned by cars that were

1:03:15 ↗ accelerating to go onto the freeway on-ramp because the cars would get through the light

1:03:21 ↗ and then they'd goose it to get up to speed and these cars would turn

1:03:24 ↗ in front of them often a blind turn because the other lane of travel had

1:03:28 ↗ stopped and they were getting hit. So the engineer said this is not a safe

1:03:34 ↗ condition and because of the accidents and the traffic volume, we have to put a

1:03:39 ↗ divider and not allow left-hand turn lanes. They'll have to go down to the end

1:03:43 ↗ of the block and come back. Well, the businesses were upset

1:03:50 ↗ and came to the council meeting and wanted the council to overturn the engineering decision.

1:03:56 ↗ Unfortunately, they didn't, but if they had, then the next person that got T-boned probably

1:04:02 ↗ would have sued us and we would have been liable for those damages. So be

1:04:06 ↗ cautious about that. We'll talk about all of these in a little more detail. You

1:04:11 ↗ have almost absolute immunity when you're acting as legislative bodies, adoption of

1:04:17 ↗ budget ordinances and resolutions at the meeting in the context as a council.

1:04:24 ↗ It's when you step outside of your role or start doing things that you have

1:04:28 ↗ no authority to do that you get into trouble. And that's an old Monopoly card

1:04:34 ↗ if you didn't recognize it. Okay,

1:04:40 ↗ so land use. I don't know where this picture came from. That's a bulldozer and

1:04:44 ↗ an angry neighbor, I guess. I had my staff grab

1:04:50 ↗ pictures and this one is a little horrific, but... You have two roles. You have

1:04:55 ↗ a quasi judicial role and you have a legislative role. And when you're acting

1:05:01 ↗ legislatively, you know, there's not a lot of rules. You know that your job is

1:05:06 ↗ to talk to people, to do your own investigation, to have as many meetings as

1:05:11 ↗ you want to have. When you're developing a comp plan or writing area wide development

1:05:17 ↗ regulations, you know, that's when you kind of interact with the people and do what

1:05:21 ↗ you think is best. When you're acting quasi-judicially, it's a whole different

1:05:27 ↗ ballgame. You've got your judge's hat on. And if you're doing that, you've got all

1:05:32 ↗ kinds of rules. You can only have one open hearing. You can only have one

1:05:36 ↗ closed appeal hearing. You cannot have any contact with the parties to that

1:05:43 ↗ particular project outside of the council chambers. You have to make your decision

1:05:49 ↗ based on the record. You don't do your own homework. You don't do any self-help.

1:05:56 ↗ Quasi-judicial actions, you have to act like a judge and if you don't, then you

1:06:01 ↗ can be challenged. You can either be challenged under the appearance of fairness doctrine, your

1:06:07 ↗ actions can be declared void, or you can be sued for money damages. If it's

1:06:13 ↗ an appeal of a site-specific project permit of some kind,

1:06:19 ↗ And the public record hearing has been held at the Planning Commission level then

1:06:25 ↗ you need to have your judges hat on and Not contact anybody

1:06:31 ↗ not do any investigation on your own and make the decision based on the record

1:06:37 ↗ that's presented to you Pursuant to the criteria that set forth in your code

1:06:44 ↗ and it's real important that you remember which role you're playing and because you're not

1:06:49 ↗ allowed to be legislative during the consideration of a project permit.

1:06:55 ↗ They're vested to be considered under the laws that existed at the time their application

1:07:00 ↗ was made. And that's where you get into trouble. One of the issues that comes

1:07:06 ↗ up a lot is the kind of intermixing of

1:07:12 ↗ planning commission functions and council functions. And a lot of council members

1:07:18 ↗ like to be a part of the Planning Commission functions because they like to hear

1:07:22 ↗ what the people have to say they may have a specific interest in a topic

1:07:29 ↗ and there's not a lot of black and white guidelines but the best

1:07:34 ↗ practices what I would recommend is if it's quasi judicial I'd stay away

1:07:41 ↗ now I know a lot of council members will attend the Planning Commission hearing of

1:07:46 ↗ a quasi judicial matter And I don't think there's a direct prohibition of that, but

1:07:51 ↗ it's fraught with danger. If you can't control yourself and you speak up, you've

1:07:56 ↗ demonstrated bias or prejudice. If there's something that's brought up at the Planning

1:08:02 ↗ Commission hearing, but then disregarded or not made a part of the record that goes

1:08:07 ↗ up on appeal, then suddenly you've heard something outside of the record. If you participate,

1:08:15 ↗ then you really are disqualifying yourself from serving as a council member. So

1:08:21 ↗ quasi judicial hearings, I think are dangerous. And you'll have to work with your own

1:08:26 ↗ attorney on specific guidelines for how to do that. Legislative actions

1:08:33 ↗ are less. Question? Yes.

1:08:39 ↗ That makes a lot of sense talking about the meetings, but is the actual video

1:08:43 ↗ of the meeting, which is a public record, not, you shouldn't be watching that either?

1:08:49 ↗ You should only be reading written materials that are in the package? Well, I think

1:08:52 ↗ you have to let your attorney put the record together, and I suspect the tape

1:08:56 ↗ of the record or the video of the record is going to be part of

1:08:59 ↗ that record that will be before you. But I would take guidance from Wayne as

1:09:05 ↗ to here's the record and here's what it encompasses. because you don't want different council

1:09:11 ↗ members relying upon different records. So what I usually do is I would define the

1:09:15 ↗ record at an appeal hearing. The record consists of these things. You've got the written

1:09:21 ↗ transcripts, you can view the video, it's available here.

1:09:28 ↗ But I think you need to make sure that the council members are all looking

1:09:31 ↗ at the same record when they're making their quasi-judicial decision on something.

1:09:39 ↗ The legislative is, again, it doesn't have all the appearance of fairness issues

1:09:45 ↗ or the multiple hearing issues or anything that arise with quasi-judicial. And

1:09:52 ↗ I don't think, again, there's any direct prohibition of you involving yourself other than we

1:09:58 ↗ have a scheme of how government operates under our statutes.

1:10:04 ↗ and the Planning Commission is given a specific duty and then your ordinances give that

1:10:09 ↗ Planning Commission specific duties with legislative matters. They hold public hearings and they make

1:10:15 ↗ recommendations to you. Then the council can take those recommendations, ignore them,

1:10:21 ↗ accept them, modify them, and make their own findings as to why they did that.

1:10:27 ↗ And I think in a perfect world, it's best to let everybody do their job

1:10:32 ↗ let the Planning Commission do its job you've appointed them for that purpose and then

1:10:37 ↗ you guys do your job as council members and I realize there's going to be

1:10:41 ↗ times when you may want to be involved at the Planning Commission level but I

1:10:45 ↗ would again work with your attorney on any guidance for that but it's I think

1:10:49 ↗ it's cleaner if everybody does what they were assigned to do by statute

1:10:55 ↗ and you know that is certainly not a legal mandate but that's in my

1:11:02 ↗ experience it works better that way you know we don't want to be in a

1:11:06 ↗ position where you're somehow influencing or

1:11:12 ↗ coercing a planning commission to act in a certain way you've appointed them to do

1:11:17 ↗ that job and I think you need to make sure that the environment is such

1:11:22 ↗ that they're allowed to do it and the one thing to keep in mind when

1:11:26 ↗ you're looking at the structure the Planning Commission is set up to be a non-political

1:11:32 ↗ body. You know, they're appointed for terms that stagger and

1:11:38 ↗ that go past the time of the council. They cannot be removed unless

1:11:44 ↗ they don't come to meetings. You can't just get rid of them because you don't

1:11:48 ↗ like their opinion. So they're kind of protected. So they do have a specific

1:11:54 ↗ function to bring some planning expertise and some non-political

1:12:00 ↗ perspective to the land use process. And I would work hard to protect that and

1:12:05 ↗ I'd go back and look at your own ordinances and see what they say about

1:12:11 ↗ the planning commission and its operation.

1:12:19 ↗ Any questions about that? I'll get back off my soapbox. Just in my experience after

1:12:24 ↗ a few years in government, it works better if everybody does what they're assigned to

1:12:27 ↗ do. That's when government works best. And when we

1:12:33 ↗ all start wearing out everybody else's hats, it gets a little confused.

1:12:42 ↗ The Westmark case, they essentially didn't like a high-rise apartment

1:12:47 ↗ complex and took a lot of actions to delay and change the law and affect

1:12:53 ↗ it over a substantial period of time. And the The total

1:12:58 ↗ liability to the city with attorney fees was almost $14 million.

1:13:05 ↗ And that was a classic case of a council not simply determining if the

1:13:10 ↗ project complied with existing rules, but trying to determine as to whether or not we

1:13:16 ↗ wanted to have that use on that property. And they were making legislative decisions

1:13:24 ↗ they were reviewing a project permit and you can't do that you just can determine

1:13:28 ↗ compliance and if it complies you have to say yes and if you really don't

1:13:33 ↗ like the use in that area you need to change the law and it'll apply

1:13:38 ↗ to any subsequent projects that are put in there mission springs we just talked about

1:13:44 ↗ there's another large judgment against a west side city in the last three or four

1:13:50 ↗ months multi-millions again So it's, you know, sometimes

1:13:56 ↗ when times get tough and there aren't profits available, people look to lawsuits to fund

1:14:05 ↗ their actions. So be cautious of that. Personnel, stay in

1:14:11 ↗ your legislative role. You know, create departments and set budgets,

1:14:18 ↗ but don't get involved in specific personnel decisions. not stray into the

1:14:24 ↗ mayor city administrators job don't participate in

1:14:30 ↗ trying to manage individual employees you know the personnel laws change constantly you've got

1:14:36 ↗ human resource people that are well versed in that you've got city attorneys that are

1:14:41 ↗ well versed in that and it's just an area that you really need to try

1:14:45 ↗ to stay out of as best you can and we you know that's an area

1:14:49 ↗ where we get a lot of lawsuits where the council starts wearing their administrative hat

1:14:55 ↗ that they really don't have. Don't make specific promises.

1:15:02 ↗ Don't take matters into your own hands. Don't go down to the planning director and

1:15:05 ↗ demand that they expedite this application. You know, that's just not appropriate.

1:15:12 ↗ If you want to expedite applications, you can pass some legislation that will allow all

1:15:16 ↗ applications of a similar nature to be expedited, but not a specific

1:15:22 ↗ expedition defamation we talked about

1:15:28 ↗ you know making comments on character or reputation

1:15:35 ↗ is dangerous and I would just avoid it

1:15:41 ↗ public works don't politically engineer crosswalk sign speed limits

1:15:49 ↗ You know, you can certainly ask staff questions. You can ask for staff input. But

1:15:55 ↗ ultimately, your engineering decision should be based on the

1:16:01 ↗ accepted engineering standards so that if you get sued, you can have

1:16:07 ↗ a defense. And again, I'd work with both your city attorney and your city engineer

1:16:12 ↗ on that. You know, all of you probably have hats in your

1:16:18 ↗ other life, your real life, your day job. You know, councils will have attorneys

1:16:24 ↗ and engineers and architects and, you know, people of all different skills,

1:16:30 ↗ accountants. But you need to be careful not to try to assume that role for

1:16:35 ↗ the city. You're there as a council person. And it's also important that you rely

1:16:40 ↗ upon the expertise of the people that you hire and not try to substitute your

1:16:44 ↗ decision for theirs. don't leak executive session

1:16:49 ↗ information. There's a reason why we're allowed to talk about

1:16:55 ↗ certain things in secret without public exposure and it's because the city would suffer

1:17:01 ↗ financial liability if the word got out as to what we were gonna charge or

1:17:06 ↗ bid for property or what the weaknesses of our case was

1:17:12 ↗ or confidential information about a specific personnel. issue those are

1:17:18 ↗ all confidential for a reason and should be kept that way you know every state's

1:17:23 ↗ different on this one executive sessions some states require that they be

1:17:29 ↗ recorded some states require minutes some states don't allow them at all

1:17:36 ↗ so it's it's every state kind of has a different set of rules for executive

1:17:40 ↗ sessions right now our rule is you can have them if they're for some very

1:17:45 ↗ specific limited issues and they

1:17:50 ↗ don't have to be recorded and there's been some attempts to change that but i

1:17:56 ↗ haven't seen it yet be mindful of written communications

1:18:04 ↗ you know the we we for some reason feel like emails or tweets or

1:18:10 ↗ texts are somehow protected and they're not They're all public

1:18:16 ↗ records and we'll talk about that in a little bit. But you have to be

1:18:19 ↗ really mindful about what you write down. Because odds are somebody's gonna see it. It's

1:18:24 ↗ probably a public record and it's probably gonna be disclosed. So don't write it down

1:18:29 ↗ if you don't want it published in the newspaper. When I was in the

1:18:35 ↗ fifth grade, I think I wrote a letter to a girl named Marsha that I

1:18:38 ↗ was sweet on. you know, said meet me down at the park after school, you

1:18:44 ↗ know, XOXO, folded it up and handed it up to her through a bunch of

1:18:48 ↗ kids and they all, you know, they honored the code, they didn't look. But the

1:18:53 ↗ teacher saw this note moving up the ranks and grabbed it and opened it up

1:18:57 ↗ and read it and then made fun of me and I was mortified. I went

1:19:01 ↗ home and told my dad, I said, you know, can't we do something? Can't we

1:19:05 ↗ sue this guy or something, you know? And he just laughed, he goes, hey, he

1:19:08 ↗ goes, if you don't want it in the paper, don't write it down. And our

1:19:12 ↗ public records law, that advice rings true. We get

1:19:18 ↗ all kinds of trouble and lose a lot of lawsuits because of a casual comment

1:19:24 ↗ that was written down. And in any electronic or written format, likely it will be

1:19:30 ↗ discovered. Okay, so let's talk about the Open Public Meetings Act.

1:19:41 ↗ The essentials of the Open Public Meeting Act is that if you're doing the city's

1:19:46 ↗ business, if a quorum of you are doing the city's business, you have to do

1:19:51 ↗ it at a publicly noticed meeting. So you can't

1:19:57 ↗ get together with a quorum and discuss, even discuss the city's business

1:20:03 ↗ without violating the Open Public Meeting Act. And that get together

1:20:10 ↗ can be all of you physically in one place it can be a quorum of

1:20:15 ↗ you on the telephone or it could be done in a series fashion where

1:20:21 ↗ council member one sends a email to council member two and says what do you

1:20:25 ↗ think and then that's forwarded to council members three and four suddenly

1:20:31 ↗ we have an illegal meeting it can be done with a series of phone calls

1:20:37 ↗ This is on the agenda tonight. How are you gonna vote? Why don't you call

1:20:40 ↗ Bob and see how he's gonna vote? You know, an attempt to try to count

1:20:44 ↗ votes ahead of time or to try to twist arms and be persuasive ahead of

1:20:49 ↗ time. As soon as you reach that quorum number, then you've got an illegal meeting.

1:20:55 ↗ And the best practice is confining your

1:21:01 ↗ governing, your discussions, your deliberations,

1:21:08 ↗ your investigations to the meeting itself.

1:21:13 ↗ Action can be public testimony,

1:21:19 ↗ deliberations, discussions, considerations, review, evaluation. All of those things

1:21:25 ↗ are the things that the public has a right to see. And so those are

1:21:29 ↗ things which you have to do at the publicly noticed meetings.

1:21:36 ↗ And I've had a lot of clients over the years run afoul of the law.

1:21:42 ↗ They clearly held that series of emails constitute an illegal meeting.

1:21:48 ↗ I've had clients that would do the rotating meeting where three would meet and then

1:21:53 ↗ one would leave and another would show up. That's gonna be a violation of the

1:21:58 ↗ Open Public Meetings Act. So the only case we won was when I

1:22:04 ↗ had three members meet and that was it and there was no fourth member and

1:22:09 ↗ the court said no quorum, no violation. That was okay. But you have to be

1:22:14 ↗ very cautious about getting together and talking about city business

1:22:21 ↗ if you're not in a publicly noticed beating. Now there's some exceptions to that. If

1:22:25 ↗ you're going to a conference and you're all gonna be there and you're gonna travel

1:22:31 ↗ together in one car The law allows that to happen, but again, I would not

1:22:36 ↗ discuss the agenda items for the next meeting. I would discuss what's going on at

1:22:41 ↗ the conference. And it's a little artificial if you're one of my county clients that

1:22:46 ↗ have three commissioners, because essentially what it means is they can't talk about county business

1:22:52 ↗ ever. If two of them talk, they're having an illegal meeting. And it kind of

1:22:58 ↗ almost is counterintuitive, but that's the way the law is set up. And let's just

1:23:04 ↗ look at a couple examples. There's a number of recall cases where they

1:23:11 ↗ said a violation of the Open Public Meeting Act was the basis for the recall.

1:23:16 ↗ And in one of them, they found that there was really no proof that

1:23:22 ↗ any action had taken place, no discussion of city business. So you can,

1:23:32 ↗ if there is no evidence that you have the types of discussions, it would be

1:23:37 ↗ a violation. In the other case, your organization to preserve agricultural lands, there

1:23:43 ↗ was telephone lobbying between a quorum, but again, there's an

1:23:48 ↗ allegation of that, but there wasn't enough proof. So in both these cases, they didn't

1:23:53 ↗ find a violation, but it wasn't because the act would have been a violation, it's

1:23:58 ↗ because they didn't have enough evidence to prove it. A

1:24:04 ↗ discussion between the city council, legal council and city managers

1:24:10 ↗ trying to decide whether they joined some statewide litigation was found to not be a

1:24:14 ↗ violation. That was a proper use of executive session and that wasn't a violation of

1:24:19 ↗ the public meeting act. Meetings between legislative members that occurred

1:24:25 ↗ prior to them being sworn in, even though there was a quorum of the future

1:24:29 ↗ council, was not a violation because they weren't council members yet.

1:24:35 ↗ So that wasn't a violation. When less than a

1:24:41 ↗ majority of the governing body meets is not a violation. The mere

1:24:47 ↗ use or passive receipt of email is not a violation. So if one of you

1:24:52 ↗ sent an email out to a quorum of council members

1:24:58 ↗ Technically that may not be a violation because you just passively received the email, but

1:25:03 ↗ I would not do that. I would, if you have something you think the council

1:25:09 ↗ needs to be informed of, I would send it to the city clerk and ask

1:25:13 ↗ them to put it in the packet for the next meeting. I would not exchange

1:25:17 ↗ email about interesting issues because nobody doesn't respond to begin with, everybody responds.

1:25:24 ↗ And as soon as you have a quorum receiving and responding, it's gonna be an

1:25:28 ↗ illegal meeting. So I try to control that flow of communication by going through the

1:25:33 ↗ city clerk. Meetings between the mayor

1:25:39 ↗ and special counsel. This was one of our cases where

1:25:45 ↗ the mayor and the special counsel were just talking about a lawsuit. And the court

1:25:51 ↗ said that that was not a violation of the public meeting because a mayor wasn't

1:25:54 ↗ a body. Critical Area

1:26:00 ↗ Ordinance Implementation Team and this is the Citizens Alliance case San Juan

1:26:06 ↗ County case Was not considered a body that was subject to the Open

1:26:12 ↗ Public Meetings Act And this case went to the Court of Appeals and then up

1:26:16 ↗ to the Supreme Court and I put the rules in just so you could see

1:26:20 ↗ that what they came up with in terms of when a committee would be considered

1:26:25 ↗ subject to a the Open Public Meeting Act, and they set forth

1:26:32 ↗ several rules. If a majority of the members gather with the collective intent of transacting

1:26:37 ↗ business, even if it's discussion only, that's a violation. A

1:26:43 ↗ committee with respect to a governing body is an entity created and specifically

1:26:49 ↗ authorized if it acts on behalf of. MRSC used the words, if it was a

1:26:55 ↗ legal, necessary antecedent to their actions. In other words, you said

1:27:01 ↗ to the committee, you take this action and then we will act accordingly. The one

1:27:06 ↗ case where it was found to be a violation is when the city of Lakewood,

1:27:10 ↗ I think, delegated, the planning commission delegated the development of its adult entertainment

1:27:16 ↗ ordinance to a committee. And that committee held hearings, took testimony, and then made

1:27:22 ↗ recommendations to the planning commission but they didn't open those to the public. The committee

1:27:27 ↗ didn't open their meetings to the public and that was found to be a violation

1:27:31 ↗ of the Open Public Meeting Act. And this is the test under Citizens

1:27:37 ↗ Alliance and I won't read it to you, but it's there if you wanna look

1:27:40 ↗ at it. Question? Yes. About

1:27:46 ↗ committees, so we have council committees, three members, and we have

1:27:53 ↗ But our committees will review legislation, shape legislation,

1:27:59 ↗ refer them back to a regular meeting for legislative action. And generally they've been found

1:28:04 ↗ not to be subject to the Open Public Meeting Act, but many cities that I

1:28:09 ↗ work with notice them anyway as public meetings. Just because if a fourth council member

1:28:14 ↗ shows up, then you may have a problem. Yeah, we don't notice them, so a

1:28:20 ↗ fourth member is not allowed to show up. Yeah, no, and I think that's appropriate.

1:28:24 ↗ If you look at the legislative history, that very question was asked, does this mean

1:28:29 ↗ the subcommittee of the council is subject to the Open Public Meeting Act? And the

1:28:34 ↗ answer was no. But again, I'd be careful because you don't

1:28:40 ↗ want to have that fourth member show up or somehow charge that committee with

1:28:47 ↗ something other than just making recommendations to the council member for their legislative act.

1:28:53 ↗ Right, and we publish agendas ahead of time. They are open, they are unnoticed, or

1:28:58 ↗ at least scheduled and publicly, they're open to the public. My question has to do

1:29:03 ↗ with members of a committee having a dialogue, members of a committee limited

1:29:10 ↗ to three, having a dialogue via email for business in front of the committee.

1:29:16 ↗ Well, if it's not a body that's subject to the Open Public Meeting Act,

1:29:22 ↗ then the email doesn't matter. But again, I would caution you from doing that because

1:29:28 ↗ it could turn into a meeting if a fourth party was copied or received on

1:29:34 ↗ that. I mean, I just think it's a dangerous practice. I would go through the

1:29:39 ↗ clerk and have the clerk distribute the information to the members of the committee. Yeah,

1:29:44 ↗ every case where it's come up, we always tend to err on the side of

1:29:49 ↗ caution and, hey, this would be all three members of our committee. So let's

1:29:55 ↗ not have that conversation. Yeah, you know, I'd just be real careful about using email

1:29:59 ↗ to conduct business. I think you can email the clerk and have the clerk send

1:30:05 ↗ it out to the body, whether it's a body subject to the act or not.

1:30:10 ↗ But as soon as you get into the habit of conducting business by email, there's

1:30:15 ↗ gonna be an argument that in some fashion you've created a quorum

1:30:21 ↗ that may be in violation of the act. Mike, I think maybe the question

1:30:27 ↗ is, suppose you had a council committee that was subject to the Open Public Meetings

1:30:32 ↗ Act. Okay. And there were three council members on that committee.

1:30:40 ↗ Any two would be a quorum, presumably. So those two couldn't talk

1:30:46 ↗ outside the meeting. If you had a committee of three. If you had a committee

1:30:51 ↗ of three that was subject to the act under the Citizens Alliance test, you somehow

1:30:56 ↗ met those requirements, you took testimony or something, then yeah, any two couldn't have any

1:31:01 ↗ communications outside of the meeting. But if that committee is making the final legislative decision.

1:31:07 ↗ Well then, you know, the... Opposed to a recommendation to... Well, that committee cannot make

1:31:11 ↗ the final legislative decision. That's reserved to the council. But the council under the test

1:31:17 ↗ can delegate certain things to this committee. So what about our normal structure is? I

1:31:21 ↗ mean, the council, we have not delegated anything to our committees. No. Now, there's a

1:31:28 ↗ question of what does take testimony mean? Mm-hmm.

1:31:34 ↗ It gets dicey because you allow the public to testify, I know, at some committee

1:31:39 ↗ meetings. Yeah, if you allow the public to testify, then I think you're going to

1:31:44 ↗ be subject to the act. Yeah, you may. At least the argument is there. And

1:31:49 ↗ that's what happened to Lakewood. They were taking public testimony in their committees for the

1:31:52 ↗ adult entertainment ordinance. You know, the way to not run into a problem with

1:31:58 ↗ this is come up with your structure, sit down with your city attorney, vet it,

1:32:03 ↗ and say, okay, this falls within, this doesn't fall within, and make sure your

1:32:09 ↗ rules are consistent. And the law is literally evolving

1:32:15 ↗ as we hear the court cases out of the Supreme Court, because the Citizens Alliance

1:32:20 ↗ case is relatively new. I think it came out last year. I think we're pretty

1:32:23 ↗ structured, and I think we know what we do, but maybe some vetting

1:32:29 ↗ would be the case, because we take public public comment at our committee

1:32:35 ↗ meetings. And so, but I also know that we notice them. I mean, not that

1:32:41 ↗ there would be a majority of the council, but it is a public meeting and

1:32:43 ↗ it's posted. Right, so we comply, I believe we attempt to comply with the open

1:32:48 ↗ public meeting for your committees. So you can take testimony, you can do things there

1:32:53 ↗ and do that. And that's,

1:32:59 ↗ so I, yeah, my real question would then be outside of that meeting, can all

1:33:04 ↗ three members of that committee have any email exchange on something that's

1:33:11 ↗ in front of the committee? Well, that depends on what the charge of the

1:33:17 ↗ committee is and whether you regularly allow the public to comment or have a,

1:33:25 ↗ public comment period or testimony period. Actually, excuse me, Wayne, for due respect, I don't

1:33:30 ↗ think there's any doubt about what the charge of our committees are. So I think

1:33:32 ↗ we can be very, we should be able to be very clear about that. I

1:33:35 ↗ mean, we have three council committees. We have infrastructure, we have land and shore, we

1:33:40 ↗ have services and safety. I mean, the charge hasn't changed at all. So I would

1:33:45 ↗ think it should be very clear on whether or not it's allowed or not. Well,

1:33:50 ↗ what I don't know is in the committee charge, are you charged with or is

1:33:56 ↗ that something that you just do? Yeah, it's something, yeah, it's generally

1:34:02 ↗ up to the discretion of the chair. So that may make a difference, I don't

1:34:06 ↗ know. Okay, so let's, we can, I'd like to vet that, just to be absolutely

1:34:11 ↗ clear. I think, you know, my experience on the council, we try very hard to

1:34:15 ↗ follow this and err on the side of caution. And that topic has came up

1:34:21 ↗ and we've tried to avoid that. And we say, well, this would be all three,

1:34:24 ↗ so let's not. But it's an open question. So I'd like to know for a

1:34:27 ↗ fact whether and what those conditions would be. Thank you.

1:34:36 ↗ That was a really interesting question. I'm thinking more in lines of if you have

1:34:40 ↗ two out of three committee members who want to work on an agenda bill together,

1:34:44 ↗ but they're on the same committee. Are they allowed to do that under the committee

1:34:47 ↗ structure? Because that's two-thirds of the committee. You know, if your committee is subject to

1:34:51 ↗ the Open Public Meeting Act, if you make the determination because of its actions taking

1:34:55 ↗ testimony or its specific charge under the alliance test, if the body is subject to

1:35:01 ↗ the Open Public Meetings Act, then you don't do anything. outside of the meeting. A

1:35:07 ↗ quorum does not do anything outside of the meeting. So you make that initial determination

1:35:13 ↗ and if you determine that the committee is subject to the act, then for a

1:35:17 ↗ quorum of that committee to meet outside of a public notice meeting is gonna be

1:35:21 ↗ a violation of the act. And your email exchanges under the same scenario, if it's

1:35:26 ↗ determined that the committee is subject to the act, then you don't email with a

1:35:30 ↗ quorum of that committee. I saw something on your screen a couple slides back that

1:35:34 ↗ made me think that we don't, are not subject to the Open Public Meeting Act

1:35:39 ↗ because we are not charged by making any final legislative decisions. And that's a determination

1:35:44 ↗ I think you need to sit down and make with Wayne. But once the determination

1:35:48 ↗ is made that you are, then a whole new set of rules falls in place.

1:35:52 ↗ And we always, this is exactly the sticking point that I run into with most

1:35:57 ↗ cities is the committees because initially the legislature said no, it's

1:36:03 ↗ not a quorum, they're not subject to the act, period. But then as we get

1:36:07 ↗ creative and we start doing more and more with the committee and maybe giving specific

1:36:11 ↗ charges to that committee, then we may bring them under the act and that requires

1:36:15 ↗ a different set of rules. So that's something I think I just talked to

1:36:21 ↗ Wayne about and come up, make sure your criteria fits. The punishment for an Open

1:36:27 ↗ Public Meeting Act violation now is $500, first offense, $1,000 second offense,

1:36:33 ↗ and attorney's fees. And so Bill, I think you had a question. Just a point

1:36:38 ↗ of clarification, we talked about taking testimony versus audience comments. And I'm just, semantics

1:36:44 ↗ is, maybe we're gonna say that, is accepting audience comments is that when you say

1:36:50 ↗ taking testimony, versus allowing audience comments. I'm not sure if that's the same thing or

1:36:55 ↗ not. Yeah, and good question Bill. I think that's the point exactly. Allowing audience comment,

1:37:03 ↗ or people to comment on what you're doing is different than, for

1:37:08 ↗ instance, if a committee of the council were charged with conducting the LID

1:37:14 ↗ assessment protest hearing. There you're taking testimony, you're charged with conducting it,

1:37:21 ↗ That would probably clearly be a committee subject to the Open Public Meeting Act. In

1:37:26 ↗ your particular case, I don't believe that the normal committee structure is because

1:37:33 ↗ there's not a specific charge from the Council to conduct a public hearing and take

1:37:39 ↗ testimony. You sort of allow it, which, you know, I think that's your discretion, i.e.

1:37:45 ↗ not sure that that automatically brings committees into open public meeting. To be

1:37:50 ↗ safe and to be transparent, as has been mentioned, we notice all the

1:37:56 ↗ meetings and the committee only meets during that time and there's an agenda and so

1:38:01 ↗ on and so forth. But actually strictly being required to comply with the law is,

1:38:08 ↗ I'm not, I don't believe so, but we'll take another look at that to make

1:38:11 ↗ sure we haven't sort of wandered our way into something. I'm gonna

1:38:17 ↗ run through a couple cases with the slides, some of which we've already talked about.

1:38:24 ↗ Balloting in an executive session is considered a violation. You don't take straw votes, you

1:38:30 ↗ don't make decisions in an executive session. The Adult Entertainment Task Force we already talked

1:38:36 ↗ about, this was a committee of the Planning Advisory Board. but they took testimony

1:38:42 ↗ and they acted upon that testimony in making recommendations to the Planning Commission and that

1:38:48 ↗ was a violation. Email messages that included a quorum in which

1:38:53 ↗ discussions or information was communicated was considered a violation of the Open Public Meeting Act.

1:39:00 ↗ City Council approval of settlement in executive session by collective positive decision, whatever the heck

1:39:05 ↗ that is. was a violation because you can't take action in an executive

1:39:10 ↗ session. That would have had to have been done in an open public meeting. A

1:39:14 ↗ straw vote was considered a violation. The executive sessions

1:39:21 ↗ can only be held for the purposes allowed by statute and

1:39:27 ↗ only during a regular or special meeting. You should limit the attendees to an executive

1:39:33 ↗ session to those that are necessary. for the purpose of the executive session. So you

1:39:38 ↗ shouldn't bring in 10 or 15 different staff members. You should bring in the people

1:39:43 ↗ that are necessary for the discussion and you can even bring in outside people if

1:39:48 ↗ they're necessary for the discussion. You don't have to take notes. I generally don't take

1:39:53 ↗ notes and when I hand out stuff, I collect it at the end of the

1:39:56 ↗ meeting. Some attorneys will fill out a single form demonstrating compliance.

1:40:02 ↗ Others don't do that at all. I'm more of the, no note, no paper

1:40:08 ↗ approach, but I have seen a number of forms that have been developed that city

1:40:12 ↗ attorneys will use. You have to announce the purpose, how long it will take, and

1:40:16 ↗ whether action will be taken when you return. And if you take longer than you

1:40:22 ↗ anticipated, you have to come back out and announce that it's going to be continued.

1:40:27 ↗ And these are the types of things that can be discussed in executive session, and

1:40:31 ↗ I won't go into great detail on those. And these are the consequences of non-compliance.

1:40:38 ↗ And probably the biggest hit is the fines, which could be personal to you individually

1:40:43 ↗ and not covered by insurance or paid by your city. But there's also the attorney's

1:40:49 ↗ fees, which can be substantial.

1:40:56 ↗ So let's talk briefly about public records. If we can switch from open public meeting.

1:41:03 ↗ The bottom line with public records is everything you write down is a public record

1:41:07 ↗ if it's done, you know, prepared, owned, used, or retained

1:41:13 ↗ for the purposes of governing. And that includes electronic records as well as

1:41:19 ↗ handwritten records or typed records. And every public record has a different

1:41:24 ↗ retention value. set forth by the state retention schedules. Have any of you looked at

1:41:30 ↗ the state retention schedules? It's about 180 pages of really confusing information,

1:41:36 ↗ I think. But they've attempted to prescribe the amount of time you have to keep

1:41:41 ↗ every type of record. And so it's a decision that your city clerk is gonna

1:41:47 ↗ have to be informed about, and you need to organize your records in a manner

1:41:50 ↗ where you keep things for their retained value, retention value. and then get rid of

1:41:56 ↗ them. And what happens is the retention schedules are confusing. Nobody really

1:42:01 ↗ knows what column things fall into, so we keep everything. And the downfall of that

1:42:08 ↗ is when the public record request is made, everything that you have is subject

1:42:14 ↗ to that request, even if you could have gotten rid of it five years ago.

1:42:18 ↗ If you don't get rid of it, you have to produce it. City councils have

1:42:23 ↗ been kind of plagued in the last couple of years. There's been one court that

1:42:27 ↗ ordered the city councils to turn over their hard drives of their personal computers to

1:42:33 ↗ the requestor, not to the court, to the requestor, because there was evidence that they

1:42:38 ↗ were using their personal computers to conduct business and send emails.

1:42:44 ↗ And that case settled, I think, before the actual turnover. There's been a case that

1:42:50 ↗ went all the way to the Supreme Court where a person's cell phone and the

1:42:54 ↗ texts on that cell phone were considered subject to forensic examination and the

1:43:00 ↗ burden of segregating personal and business on the cell phone fell on the owner of

1:43:05 ↗ the cell phone. So if you are using personal communication devices to conduct city

1:43:11 ↗ business, make sure you keep things separate and my recommendation is that you don't. The

1:43:17 ↗ state, a lot of the state officials now just have two cell phones, one personal,

1:43:21 ↗ one private, or one public. Yes? My question is, is

1:43:27 ↗ using web mail or those types of viewers on your personal cell phone

1:43:32 ↗ considered using, mixing your personal and your work? You know, I think if you use

1:43:37 ↗ your city, like for example, use the city email site or some city platform,

1:43:45 ↗ Can you simply access it by your personal phone? You're probably not. But

1:43:51 ↗ if you create your own personal email account for city business, then you clearly are.

1:43:56 ↗ And it's not a bright line, it's kind of fuzzy right now. But every time

1:44:00 ↗ we go to the Supreme Court, they just slam us. And they say, well, you

1:44:04 ↗ know, it's gonna be interpreted broadly. So you just need to be real cautious

1:44:11 ↗ and be very intentional about how you use personal communication devices, use your city email,

1:44:17 ↗ use your city platforms, and keep in mind that public records requests come out from

1:44:23 ↗ every direction and often are voluminous and have to be

1:44:29 ↗ responded to. But the punchline is if I just, because I just use my city

1:44:33 ↗ email for city business and never personal business, and I use my personal email for

1:44:38 ↗ personal business and never city business, so my phone shouldn't be discoverable. Let's hope not,

1:44:43 ↗ I can't guarantee that. If you want to be absolutely certain, you have one phone

1:44:48 ↗ for public business, one for private. It just kind of depends on

1:44:54 ↗ what evidence comes out and what the judge determines in

1:44:59 ↗ terms of whether or not there would be public records on that personal phone that

1:45:03 ↗ you're not disclosing. Tola, I think in the case that Mike was

1:45:09 ↗ talking about, the public official used his phone to make phone calls, not

1:45:15 ↗ necessarily send text messages. And the requester

1:45:22 ↗ wanted his phone records as to who he called because there was some

1:45:27 ↗ conspiracy or whatever. Anyway, so, you know, it's one thing about

1:45:33 ↗ email or the Facebook account or the city Facebook or whatever, but this one was

1:45:39 ↗ for phone calls. that involved city business on a private phone. And

1:45:46 ↗ he had to turn it over, basically. You know, so it does get a little,

1:45:51 ↗ you know, you'd think there was a constitutional protection against

1:45:56 ↗ seizure of property without any evidence of a crime, but the court seemed to suggest

1:46:02 ↗ that by being a public official and using your phone for public business, you're waiving

1:46:08 ↗ your constitutional rights in that area. And the cases are all over the ballpark across

1:46:14 ↗ the country. We don't have a final answer on this, but you need to be

1:46:18 ↗ cautious. Courts have found that email records

1:46:24 ↗ obviously are going to be public records. Metadata is a public

1:46:29 ↗ record. Texts are a public record. Data

1:46:35 ↗ on your hard drives are public records. These are all things that can

1:46:41 ↗ be discovered. There are certain exemptions,

1:46:47 ↗ but they certainly aren't things that you can unilaterally assert. I

1:46:53 ↗ don't think you should exempt or determine that something's exempt from a public record unless

1:46:59 ↗ your city attorney approves it with one exception, that probably being your police department, because

1:47:05 ↗ they deal with so many form records. and they are pretty well versed in the

1:47:10 ↗ law. But it's not a decision that a city employee should make.

1:47:18 ↗ Text, tweets, and blogs, they're all there. And those

1:47:24 ↗ are records that we need to be cognizant of. The record

1:47:29 ↗ management law is the flip side of this. You probably should, as a city, be

1:47:35 ↗ budgeting for records management and figuring out a way to

1:47:41 ↗ organize all of your records in a way that's consistent with the retention policies so

1:47:45 ↗ you can destroy them. There's been a lot of different approaches to this.

1:47:51 ↗ Most cities are trying to get everything as much as they can up on a

1:47:54 ↗ web or an accessible cloud type page

1:48:01 ↗ and I think that's probably ultimately the answer, but it's costly. And

1:48:08 ↗ the cities that I do public record audits of, the first question I ask is

1:48:13 ↗ I go to every department and say, give me a list of your hard copy

1:48:16 ↗ and your electronic files. And you start there.

1:48:22 ↗ And if you can't do that, then you have to start doing some

1:48:28 ↗ digging and organizing. So we need to know what we have or we end up

1:48:33 ↗ getting because we don't produce a record that's responsive. These are all the

1:48:39 ↗ statutes dealing with records management laws and disposal. And I'll just

1:48:45 ↗ buzz through those.

1:48:52 ↗ And it includes your website. That's a public record and has to be

1:48:59 ↗ backed up in a way that you can respond to public records requests. Email is

1:49:04 ↗ specifically addressed by WAC code provisions. The email retention options, and I

1:49:10 ↗ put this slide in just because all the cities are kind of all over the

1:49:13 ↗ ballpark on this now. Some cities still have employee discretion and employees are

1:49:19 ↗ deleting emails, you know, just on their own, which I think is incredibly dangerous.

1:49:25 ↗ Most cities have one server that saves everything, you know, a barracuda type setup.

1:49:31 ↗ And that's the safest because then if the individual employee gets rid of something, you

1:49:36 ↗ still have it. But that is cumbersome because it grows exponentially.

1:49:42 ↗ And you'll do a search of a word and you'll get 10,000 responses you have

1:49:47 ↗ to go through. Some cities are starting to set up files for email. and

1:49:53 ↗ having their employees, training their employees to move all their emails into specific files that

1:49:58 ↗ are consistent with the records retention schedules and then destroying them.

1:50:04 ↗ And there's two or three cities now that do that exclusively. I don't know if

1:50:09 ↗ it's working or not, but at least it's a way of starting to destroy emails

1:50:13 ↗ and not keep everything. You need a written email policy to

1:50:18 ↗ reduce the amount of emails and to not confidential and personal matters in email

1:50:24 ↗ if you can help it because if you do then that has to be reviewed.

1:50:33 ↗ The email policy, you have to have a consistent way of naming email. You need

1:50:39 ↗ to avoid string email. You need to not intermix personal and public. You need to

1:50:44 ↗ limit use of email and you need to limit meaningless responses. because every time you

1:50:50 ↗ do that, it creates a new email. You know, got it, thanks, love you. You

1:50:54 ↗ know, all the gratuitous responses. Every time you do that, it's another email. So there's

1:50:58 ↗ another thousand email you have to look at. So your policy should try to eliminate

1:51:03 ↗ those. Email destruction, again, has to be

1:51:09 ↗ pursuant to retention schedules, scheduled, memorialized, involving supervision and training. You know,

1:51:15 ↗ in this whole public records arena, The courts have pretty much told us that they're

1:51:20 ↗ not gonna back off even though it's incredibly expensive and there's been judgments that have

1:51:26 ↗ come near to bankrupt cities. So it's incumbent upon us to come up with a

1:51:31 ↗ way to budget for it and deal with it. Or there's incredible exposure and

1:51:37 ↗ there's no protection. Your insurance policies don't protect you for public records

1:51:44 ↗ problems. So you really need to, I think make it a priority

1:51:50 ↗ so that you don't get hit with a $400,000 judgment that you have to take

1:51:55 ↗ out of your general fund. Okay, that's

1:52:01 ↗ the end of my public records and my presentation.

1:52:07 ↗ I see we had one member that got here just in time. Well, she's going

1:52:11 ↗ to have to watch the video. of this presentation so that. Could you just go

1:52:16 ↗ over that quickly again? Sure. So that we can document the fact that. Barely I'm

1:52:19 ↗ incapable of doing anything very quickly. So if you have any questions I'd be glad

1:52:24 ↗ to stick around and answer your questions. The bottom line with public records is you

1:52:29 ↗ need to take them seriously because the judgments are, you know, the three to $500,000

1:52:34 ↗ judgments are not uncommon. And they're incredibly time intensive for your city clerk

1:52:40 ↗ and you know, I think the, the burden falls on the city clerks and it's

1:52:45 ↗ just, I think it's an unfair burden. It's way too much, especially if you get

1:52:50 ↗ some of these rogue requesters. They even have robo-requesters now that will send out email

1:52:56 ↗ requests by computer and then 10 minutes later send out the same request with the

1:53:00 ↗ dates changed and then 10 minutes later send out another request with the dates changed.

1:53:04 ↗ And you know, we have to be able to respond to those.

1:53:10 ↗ Mike, I want to thank you for You're very thorough. I have a quick question

1:53:15 ↗ for him, but I guess I'm supposed to come up here and speak here. Could

1:53:17 ↗ you just speak a little bit more on, I think everybody understands not sending an

1:53:23 ↗ email to, you know, say four, that's a quorum, but sending something out saying, hey,

1:53:29 ↗ you know, this is coming up, whatever, and they send it to one. And that

1:53:33 ↗ one next thing, you know, gets passed out to somebody else and then somebody else.

1:53:37 ↗ Well, I just would formalize email, regardless of whether your committee is, subject to the

1:53:43 ↗ open public meeting act or not, or if you're dealing with council, I would formalize

1:53:48 ↗ your communications. If you want to communicate with the council, I go through the clerk

1:53:52 ↗ and have the clerk submit it as part of your packet. And I do it

1:53:58 ↗ in a formal manner so that you don't have council members emailing each other. All

1:54:02 ↗ the state boards that I was on, like the PDC or executive ethics, we were

1:54:06 ↗ just prohibited from emailing one another. I mean, they just said, don't do it.

1:54:12 ↗ because you do it with one, they do it with another, they do it with

1:54:15 ↗ the fourth, and suddenly you may have a potential illegal meeting. And it makes sense

1:54:20 ↗ to funnel it through the clerk. Everybody gets the same information. Nobody can accuse you

1:54:25 ↗ of having the illegal meeting. The law does allow three of you to get together

1:54:30 ↗ and talk. So far that's been protected, and that was a lawsuit that I fought

1:54:35 ↗ in Spokane and we won, where the three council members had dinner. that was apparently

1:54:40 ↗ not a violation of the law. The other thing to keep in mind with public

1:54:45 ↗ records is there's no public talking law. We can still talk

1:54:52 ↗ and I'd encourage you to do that rather than writing it down. You know, it's

1:54:58 ↗ still okay to go down the hall and have a conversation and apparently we don't

1:55:01 ↗ have to record that and memorialize it yet, so. Are there any,

1:55:08 ↗ Last questions for Mike. Again, thank you for that very thorough

1:55:13 ↗ presentation. This satisfies the requirement that

1:55:20 ↗ everyone here has received the training. Other public

1:55:25 ↗ records requests in other organizations, in my case, Sound

1:55:31 ↗ Transit, as they ask, when I had

1:55:38 ↗ the, you know, this training. So it will be a matter of record. And Stacy?

1:55:43 ↗ I'll watch it. I know you will. I'll watch it. Mike, thank you very, very

1:55:48 ↗ much. Thank you. We're going to take a short break. Let's get started again at

1:55:52 ↗ five after for our next item on

1:55:58 ↗ our agenda, which will be an executive session. And I will announce the information

1:56:04 ↗ on the content of that, the authorization for that when we come back at five

1:56:09 ↗ after.

1:56:24 ↗ We're back from our break. Our next item of business, we'll now

1:56:30 ↗ move into executive session. We will be considering three items,

1:56:36 ↗ the first of which is elective bargaining agreements under the provisions of

1:56:42 ↗ RCW 42.30.140 paren 4 paren B.

1:56:48 ↗ The second item, potential property acquisition or acquisitions

1:56:55 ↗ under the provisions of RCW 42.30.110 paren 1

1:57:02 ↗ paren A paren B. and the third item under executive session

1:57:08 ↗ pending slash potential litigation, RCW 42.30.110

1:57:15 ↗ paren 1 paren I. It's expected that the executive

1:57:21 ↗ session will last one hour and there is the

1:57:27 ↗ potential that we will take action on executive session items discussed if needed.

1:57:34 ↗ And that will be done in open session. We'll now move to executive session

1:57:41 ↗ at 9.07. All right. So the

1:58:01 ↗ first one we're going to. Just a second. We are back in. Not of executive

1:58:06 ↗ session. Council

1:58:12 ↗ President Goodman. Thank you. I would authorize the city attorney make a motion authorizing the

1:58:17 ↗ city attorney to settle the Reed condemnation as discussed in executive session. Second. Moved and

1:58:23 ↗ seconded. Any discussion? Seeing none then, all those in favor of

1:58:33 ↗ Authorizing the city attorney to settle the Reed condemnation as discussed in executive

1:58:39 ↗ session signify by saying aye. Aye. Those opposed, that carries

1:58:45 ↗ unanimously. Council President Goodman. Thank you. I would

1:58:51 ↗ make a motion to authorize the administration to enter into a letter of intent for

1:58:55 ↗ the property discussed in executive session. Second. Moved and seconded. Any discussion?

1:59:04 ↗ Seeing none then, all those in favor of authorizing the administration to enter into a

1:59:08 ↗ letter of intent for the property discussed in executive session signify by saying aye. Aye.

1:59:14 ↗ Those opposed, that carries unanimously. There's no other business to

1:59:20 ↗ come before the council this evening. We are adjourned.

Approved minutes

Extracted from the next meeting's packet, where this meeting's minutes were approved as a consent-calendar attachment.

Open PDF

Attendance

Council / Members (7)

Eileen Barber

Mariah Bettise

Stacy Goodman (Arrived at 8:50 PM)

Tola Marts

Mary Lou Pauly

Bill Ramos

Paul Winterstein

Motions and votes (3)

Proceed with the public engagement plan as presented. . 08-29-16 City Council Special Meeting Minutes Page 7804 b)

Moved by WINTERSTEIN · seconded by PAULY

Carried 6-0

Authorize the City Attorney to settle the Reid condemnation as discussed in

Moved by GOODMAN · seconded by PAULY

Authorize the Administration to enter into a letter of intent for the property discussed in

Moved by GOODMAN · seconded by WINTERSTEIN