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09/15/2003 City CouncilApprove 8/26/03 Minutes Approve Claim Checks im for ages EDMONDS CITY COUNCIL APPROVED MINUTES September 15, 2003 The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Haakenson in the Council Chambers, 250 50' Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Gary Haakenson, Mayor Dave Earling, Council President Jeff Wilson, Councilmember Michael Plunkett, Councilmember Lora Petso, Councilmember Dave Orvis, Councilmember Richard Marin, Councilmember ELECTED OFFICIALS ABSENT Deanna Dawson, Councilmember 1. APPROVAL OF AGENDA STAFF PRESENT David Stern, Chief of Police Dan Clements, Administrative Services Director Duane Bowman, Development Services Director Stephen Clifton, Community Services Director Rob Chave, Planning Manager Dave Gebert, City Engineer Stephen Koho, Treatment Plant Manager Scott Snyder, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER ORVIS, FOR APPROVAL OF THE AGENDA AS PRESENTED. MOTION CARRIED UNANIMOUSLY. CONSENT AGENDA ITEMS Councilmember Petso requested Item F be removed from the Consent Agenda, Councilmember Marin requested Item H be removed. COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, FOR APPROVAL OF THE REMAINDER OF THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: (A) ROLL CALL (B) APPROVAL OF CITY COUNCIL MEETING MINUTES OF AUGUST 26, 2003. (C) APPROVAL OF CLAIM CHECKS #64953 AND #64964 THROUGH #65146 FOR THE WEEK OF AUGUST 25, 2003, IN THE AMOUNT OF $154,387.71. APPROVAL OF CLAIM CHECKS #65149 THROUGH #65256 FOR THE WEEK OF SEPTEMBER 1, 2003, IN THE AMOUNT OF $90,224.21. APPROVAL OF CLAIM CHECKS #65257 THROUGH #65262 THROUGH #65420 FOR THE WEEK OF SEPTEMBER 8, 2003, IN THE AMOUNT OF $383,644.27. APPROVAL OF PAYROLL DIRECT DEPOSITS AND CHECKS #36549 THROUGH #36683 FOR THE PERIOD AUGUST 16 THROUGH AUGUST 31, 2003, IN THE AMOUNT OF $791,830.71. (D) ACKNOWLEDGE RECEIPT OF CLAIM FOR DAMAGES FROM A. ANSARI ($225.00), SHELDON SOULE ($17,284.57), RAY LAMB (AMOUNT UNDETERMINED), AND JEFF BOWERS (AMOUNT UNDETERMINED). Edmonds City Council Approved Minutes September 15, 2003 Page I ddition to (E) APPROVAL OF FINDINGS OF FACT FOR A CLOSED RECORD REVIEW HELD ON ory's Pub AUGUST 19, 2003, REGARDING AN APPEAL OF THE HEARING EXAMINER'S & BMain St. DECISION TO APPROVE THE DESIGN OF AN ADDITION TO RORY'S PUB & BROILER. THE PROPERTY IS ZONED BC (COMMUNITY BUSINESS) AND IS LOCATED AT 105 MAIN ST. (APPELLANT: PARIS PARTNERSHIP / APPLICANT: TAYLOR GREGORY BUTTERFIELD ARCHITECTS / FILE ADB -03 -32 AND AP -03 -117) g t (G) APPROVAL OF 2004 EQUIPMENT RENTAL RATES. entatal Rates (I) REPORT ON BIDS OPENED AUGUST 26, 2003 FOR THE METERS D & E Meters D &E REHABILITATION AND PUMP STATION DEMOLITION AND AWARD TO GARY Rehabilita- tion HARPER CONSTRUCTION, INC. FOR THE AMOUNT OF $163,654.92, INCLUDING SALES TAX. Screenings System (,n AUTHORIZATION FOR MAYOR TO SIGN PROFESSIONAL SERVICES AGREEMENT Improvement WITH BROWN AND CALDWELL FOR SCREENINGS SYSTEM IMPROVEMENT Marina PROJECT. Beach Pier Electrical (K) AUTHORIZATION FOR THE MAYOR TO SIGN AN INTERLOCAL COOPERATION Power AGREEMENT WITH THE PORT OF EDMONDS FOR MARINA BEACH PIER es# 1048 ELECTRICAL POWER. Set Hearing Vacate Portion of (L) RESOLUTION NO. 1048 SETTING OCTOBER 21, 2003, AS THE HEARING DATE FOR ]ley No. of A REQUEST TO VACATE A 12 -FOOT WIDE BY 75 -FOOT LONG PORTION OF THE 20 - 8's Ave ALLEY IMMEDIATELY TO THE NORTH OF 920 — 8TH AVENUE SOUTH. So. (APPLICANTS: THOMAS AND SUSAN NICHOLSON / FILE NO. ST -03 -120) rd# 3470 8500 Block (M) ORDINANCE NO. 3470 VACATING THE EASTERLY THREE FEET OF THE RIGHT - fBowdoin OF -WAY OF THE 8500 BLOCK OF BOWDOIN WAY (FILE NO. ST- 2003 -122). Way onstitution (N) PROCLAMATION IN HONOR OF CONSTITUTION WEEK, SEPTEMBER 17 — 23, 2003. reek Item F: Approval of Findings of Fact for a Closed Record Review held on August 19 2003 regarding an appeal of the Hearing Examiner's decision to approve a variance request for a mixed use building Mixed Use Specifically, a variance from Edmonds Community Development Code Section 16 50 020(B) which requires Building at commercial development on the ground floor to a minimum depth of 30 feet The property is zoned BC 303 Dayton (Community Business) and is located at 303 Dayton Street (Appellant: Finis Tupper / Applicant: AD Street Shapiro Architects / File No. AP -03- 116- ADB -03 -38 and V- 03 -85) Councilmember Petso explained this was an application for a variance to allow parking on the ground floor rather than retail. She voted against the motion to uphold the Hearing Examiner's decision, finding there was no special circumstances and that it did not comply with the Comprehensive Plan. She planned to vote against the Finding of Fact as well. COUNCILMEMBER ORVIS MOVED, SECONDED BY COUNCILMEMBER MARIN, FOR APPROVAL OF ITEM F. MOTION CARRIED (5 -1), COUNCILMEMBER PETSO OPPOSED. The item approved is as follows: (F) APPROVAL OF FINDINGS OF FACT FOR A CLOSED RECORD REVIEW HELD ON AUGUST 19, 2003, REGARDING AN APPEAL OF THE HEARING EXAMINER'S DECISION TO APPROVE A VARIANCE REQUEST FOR A MIXED USE BUILDING. SPECIFICALLY, A VARIANCE FROM EDMONDS COMMUNITY DEVELOPMENT CODE SECTION 16.50.020(B) WHICH REQUIRES COMMERCIAL DEVELOPMENT ON THE GROUND FLOOR TO A MINIMUM DEPTH OF 30 FEET. THE PROPERTY IS ZONED BC (COMMUNITY BUSINESS) AND IS LOCATED AT 303 DAYTON STREET. (APPELLANT: FINIS TUPPER / APPLICANT: AD SHAPIRO ARCHITECTS / FILE NO. AP -03 -116, ADB -03 -38 AND V- 03 -85) Edmonds City Council Approved Minutes September 15, 2003 Page 2 1 kd Item H: Report on Bids Opened on Auaust 26, 2003 for the SR 104 Sanitary Sewer Rehabilitation Proiect and Award of Contract t o Michels Pipeline Construction, Inc. ($554,967.47, Includina Sales Tax) Councilmember Marin explained this was a long overdue rehabilitation of a 24 -inch main sewer trunk line under SR 104. He explained the replacement of a sewer line usually required exposing the pipe while the work was performed. In this project, trenchless technology will be used resulting in a minimal amount of traffic disruption. COUNCILMEMBER MARIN MOVED, SECONDED BY COUNCILMEMBER ORVIS, FOR APPROVAL OF ITEM H. MOTION CARRIED UNANIMOUSLY. The item approved is as follows: (H) REPORT ON BIDS OPENED ON AUGUST 26, 2003 FOR THE SR 104 SANITARY SEWER REHABILITATION PROJECT AND AWARD OF CONTRACT TO MICHELS PIPELINE CONSTRUCTION, INC. ($554,967.47, INCLUDING SALES TAX) 3. DISCUSSION ON THE REFERRAL PROCESS INCLUDED IN EDMONDS CITY CODE Public CHAPTER 1.14, PUBLIC OFFICIAL DISCLOSURE. Official Disclosure (A) COMPLAINT RECEIVED SEPTEMBER 4, 2003 FROM RAYMOND J. MARTIN REGARDING PUBLIC OFFICIAL DISCLOSURE. (B) PETITION RECEIVED SEPTEMBER 8, 2003 FROM FINIS TUPPER AND RAYMOND MARTIN REGARDING INTERPRETATION OF DUTIES AND RESPONSIBILITIES OF THE MAYOR, CITY CLERK, AND CITY COUNCIL PERTAINING TO PROCESSING THE ABOVE REFERENCED COMPLAINT. Mayor Haakenson referred to the information in the Council packet regarding the City Attorney's suggestion for addressing this item. As he was the subject of the complaint, Councilmember Marin recused himself from consideration of the item. Councilmember Marin left the dais and the Council Chambers at 7:07 p.m. Mayor Haakenson established time limits for Mr. Martin and the staff, 10 minutes each, reminding Mr. Martin to retain time for rebuttal. Ray Martin advised the second complaint (Item 3B) could be eliminated as it had been resolved. City Attorney Scott Snyder explained the issue before the Council was a request for an interpretation that the process was not handled correctly. Mr. Martin clarified the second complaint was that the original complaint had not been acted on properly and in accordance with the ordinance. Now, the complaint was in the process of being handled correctly and in accordance with the ordinance, thus the second complaint was moot. Mr. Snyder explained his understanding was that the issue before the Council was the interpretation of the ordinance. He noted the Council had already decided in December how complaints of a criminal violation of Chapter 1.14 were to be decided. Mr. Martin disagreed, and recalled the Council President requested Councilmembers Orvis, Dawson, and Petso research the matter for a change in the ordinance, but that had never been accomplished. Mayor Haakenson clarified Item B was Mr. Martin's and Mr. Tupper's request for an interpretation regarding the duties and responsibilities of the Mayor, City Clerk, and City Council. pertaining to the claim regarding the Councilmember. Mayor Haakenson interpreted Mr. Martin's request to be to Edmonds City Council Approved Minutes September 15, 2003 Page 3 withdraw that complaint as it was now being handled properly. Mr. Martin agreed. Mayor Haakenson noted the way the complaint was being handled had not changed so it was handled properly in the first place. Mr. Martin disagreed the complaint was handled properly. Mayor Haakenson explained the issue before the Council was Part B of the complaint, that the complaint was not handled properly. He asked Mr. Martin whether he wished to pursue that issue. Mr. Martin commented the complaint was not initially handled correctly but that changed because it was now before the Council. He recalled Mayor Haakenson indicated the matter would be referred to the City Prosecutor. Although he did not object to that procedure, it was not in accordance with the City Code as the Mayor's only responsibility according to the Code was to be a tie breaker in the event of a tie vote; it was the Council's responsibility to review the matter. He indicated over the weekend he received information that the Council would be holding a hearing and reviewing the matter. Therefore, that cancelled his complaint. Mayor Haakenson clarified Mr. Martin wished to withdraw his complaint regarding how the matter was handled. Mr. Martin agreed. Mayor Haakenson explained the City Attorney's intent tonight was to inform the Council that a complaint had been received against a Councilmember and advise the Council of the action taken. He clarified there was no plans to discuss the complaint itself tonight. Mr. Snyder agreed that was the intent. He explained Mr. Martin and Mr. Tupper's second request alleged that staff's actions were not in accordance with the City's Code, specifically his advice to the City Clerk to refer the matter to the City Prosecutor. He agreed the intent of this item was to review the request for interpretation. As Mr. Martin and Mr. Tupper noted, the ordinance provides for interpretation and advisory opinions; since the request did not ask whether there was a criminal violation of the ordinance, but requests an opinion from the Council regarding how the ordinance is applied, it was appropriate for Council to review Item B. Mr. Martin explained he came to the meeting prepared to discuss his complaint against Councilmember Marin. He asked whether that matter was before the Council. Mr. Snyder suggested the Council proceed with a discussion of Item B because if it were disposed of as the Council has previously done, the Council would not be addressing Issue A. He noted the matters were placed on the agenda in chronological order, however, the issue before the Council tonight was only interpretation of the ordinance. Mayor Haakenson referred to the documentation in the Council packet that a complaint was received regarding Councilmember Marin and public disclosure. As the packet indicates, Mr. Snyder's advice to the City Clerk was to immediately send the complaint to the City Prosecutor for handling. He explained after the City Clerk informed him of the complaint and Mr. Snyder's advice, the complaint was forwarded to the City Prosecutor who in turn, to avoid any Appearance of Fairness issues, forwarded the complaint to the Snohomish County Prosecutor. Mr. Martin and Mr. Tupper's letter alleges that this action circumvented City Code. He suggested the Council comment on the way the complaint was handled. Responding to Council President Earling, Mr. Snyder explained his advice in this matter was based primarily on a 6 -1 -0 Council vote when this same issue arose in December 2002. The Council affirmed an interpretation he provided on December 17, 2002; therefore, his understanding was that the Council had already decided how such matters should be handled. Council President Earling clarified Mr. Snyder's opinion was based on the Council's prior decision. Mr. Snyder agreed, explaining on December 17, 2002, he provided the Council his analysis of the ordinance. Edmonds City Council Approved Minutes September 15, 2003 Page 4 He recalled Mr. Tupper, the complainant in the December 2002 issue, did not agree with his (Mr. Snyder's) opinion and the Council made an interpretation. Mayor Haakenson clarified the December 2002 complaint was in regard to a different Councilmember. Councilmember Petso recalled that when the Council considered this on December 17, 2002, a committee of Councilmembers Dawson, Orvis and Wilson was established to consider this process. She asked whether the committee met and how the issue had been addressed. Councilmember Wilson recalled the committee met 1 -2 times, but were unable to arrange subsequent meetings due to scheduling difficulties. Councilmember Petso asked Councilmember Wilson to summarize issues the committee had identified and plans for changes to the process. Councilmember Wilson advised the committee began discussing the issues, the process in the current ordinance, and researching how other cities addressed similar situations. The committee had not reached a decision regarding how to proceed with any changes. Councilmember Orvis recalled it was very difficult for the members of the committee to meet. Councilmember Petso concluded the procedure remained the same as it existed in December and the current complaint was much the same as the complaint in December. Mr. Snyder indicated that was his finding. Councilmember Petso asked whether the current complaint was handled in the same manner as the complaint in December. Mr. Snyder answered yes. Councilmember Petso asked whether the issue was now with a Snohomish County Prosecutor. Mr. Snyder explained he did not specify a specific prosecutor; only that the City follow the same procedure it followed in December. Mayor Haakenson explained the complaint was referred to the City Prosecutor who immediately referred it to the Snohomish County Prosecutor. He recalled the December complaint was reviewed by the City Prosecutor and an issue arose over the Appearance of Fairness issue. Councilmember Petso concluded the matter was being handled the same as the Council directed in December, only better. Councilmember Plunkett commented what the committee had or had not done was irrelevant as the issue before the Council was existing City Code. He commented Mr. Martin apparently assumed Item A was being considered by the Council, the reason he was no longer interested in discussing Item B. Councilmember Plunkett reiterated Item A was with the prosecutor. He recommended the Council hear from Mr. Martin why he believed the complaint should not have been referred to the City Prosecutor and the Council determine whether the Mayor acted according to Council principle and precedent in referring the complaint to the prosecutor. If the Council found the Mayor executed the Council's request, Item A was moot. If the Council ruled the Mayor did not follow Council principle and precedent, the Council could consider Item A. Mr. Martin commented the City Attorney based his advice on case law from the Council decision made in December. He disagreed that was the Council's decision in December. His understanding was that a committee was formed but the committee had not done anything. He questioned how this represented case law since it had not been discussed by the Council since. He inquired where his complaint against Councilmember Marin was. Mayor Haakenson explained it was sent to the City Prosecutor who forwarded it to the Snohomish County Prosecutor. Mr. Martin explained his understanding was that the complaint had been returned to the Council but apparently not. Mayor Haakenson encouraged Mr. Martin to describe his interpretation of the Code and the Council would make a ruling. Mr. Martin explained his interpretation of the Code was that the Mayor's responsibility was to vote in the event of a tie and no where did the Code indicate the Mayor Edmonds City Council Approved Minutes September 15, 2003 Page 5 would forward a complaint to the City Prosecutor. He questioned why the second complaint was not forwarded to the City Prosecutor but rather presented to the Council. Mayor Haakenson explained Mr. Martin's second complaint requested a Council interpretation. Mr. Martin expressed disappointment that his complaint against Councilmember Marin would not be discussed at the Council level, alleging this was "a form of shutting it down so people won't hear it." Councilmember Plunkett clarified Item B was a request for interpretation of the Code which was different from a complaint, thus the. reason Item B was before the Council. He asked Mr. Martin to explain why Mayor Haakenson should not have forwarded the complaint to the City Prosecutor. Mayor Haakenson read from Exhibit 2, the letter from Mr. Martin and Mr. Tupper to the City Clerk, "We, Finis Tupper and Raymond Martin, both registered voters, residing at 711 Daley St. and 18704 94`h Avenue W, Edmonds WA, respectively, hereby petition the Edmonds City Council for interpretation of the following issue: Did Mayor Gary Haakenson usurp the duties and responsibilities of both the City Clerk and the Edmonds City Council by forwarding a citizen complaint directly to the City Prosecutor without following Edmonds City Code (ECC) 1.14.060 ?" In response to Mr. Martin's inquiry why the complaint was before the Council, Mayor Haakenson explained it was because he and Mr. Tupper had requested it. Mayor Haakenson assured that once the Council ruled on the interpretation, Mr. Martin would understand what occurred on Item A. Mr. Martin questioned why Mayor Haakenson acted on the first complaint but did not take the same action on the second complaint. Mayor Haakenson explained the second was not a complaint but rather a request for an interpretation by the City Council. Mr. Martin explained his interpretation of the Code was that the complaint should go to the City Council, both the complaint against Councilmember Marin and the complaint against Mayor Haakenson. He summarized forwarding the first complaint to the City Prosecutor rather than going through the City Council was not in accordance with the Code. Mr. Martin asked whether the complaint had been forwarded to the Snohomish County Prosecutor or to a friend of the City Prosecutor's. Mayor Haakenson reiterated that when the complaint was received, the City Clerk called the City Attorney who advised her to send it to the City Prosecutor. In his position as CEO of the City, he sent it to the City Prosecutor who forwarded the complaint to the Snohomish County Prosecutor where it is now. Mr. Snyder recalled it was his advice to the City Clerk to process the complaint and the request for interpretation in this manner. He explained there were two matters raised by Mr. Martin and Mr. Tupper, first a complaint regarding a violation of the provisions of the Code, specifically they alleged a violation of Section 1.14.030 which requires a filing of certain documents with the City Clerk within ten days of the date of filing with the Public Disclosure Commission. That violation is subject to a criminal penalty under Section 1.14.070. The second issue was an allegation by Mr. Martin and Mr. Tupper that the City had not handled the complaint properly. Because the second allegation requested an interpretation of the Council and because the actions noted were not violations of any criminal provision of the code, but rather procedural, he advised the City Clerk and Mayor to place the matter on the Council agenda for review. He clarified this was not intended to stifle anyone but ensure everyone's constitutional rights were properly noted. Mr. Snyder recalled the same issue came before the City Council in December 2002 when an allegation was made that a Councilmember had violated a provision of Section 1.14.050 regarding participation of officials in the hearing process, again a set of facts that had occurred and were subject to a criminal penalty. At that time, he pointed out two concerns to the Council. First, that Section 1.14.060, entitled Interpretation, and the subparagraphs that were relied upon by Mr. Martin and Mr. Tupper, and paragraph Edmonds City Council Approved Minutes September 15, 2003 Page 6 1 A states "interpretations of this chapter and advisory opinions." He noted advisory opinions and interpretations deal with hypothetical matters or matters that had not yet resulted in a set of facts. One primary way to interpret any law and particularly City ordinances, is to read ordinances as a whole in an attempt to effectuate their intent. At Mr. Snyder's request, City Clerk Sandy Chase distributed copies of Ordinance 1678 to the Council and audience, explaining this ordinance was enacted by the Council in 1973 to define conflicts of interest and assure citizens that there would be a filing of financial information and public officials were prohibited from engaging in actions in certain matters. He referred to Section 6 of the ordinance which establishes provisions for interpretations of the chapter and advisory opinions in substantially the same manner as occurs today although the ordinance has been amended several times. He noted that because the Public Disclosure Commission (PDC) handles filing of information, the Council removed the provisions of the Code that require separate filings and only require that PDC filings be filed in the City so that members of the public could avail themselves of that information. When the Legislature enacted a Code of Ethics for Public Officials, the provisions in Section 5 of the ordinance regarding participation by public officials were deleted. He explained the interpretation and advisory opinion section was designed to provide an opportunity for citizens and Councilmembers to question public officials' participation in certain hearing processes before it occurred. He pointed out that in interpreting the ordinance as a whole, the opportunity for the Council to be involved in the process was for interpretations and advisory opinions and a separate process existed for review of criminal complaints via the judiciary. Mr. Snyder explained one of the fundamental principles in the U.S. Constitution as discussed in December 2002, was bill of attainder. He explained there were three branches of government — the legislative branch enacted laws, the Executive branch enforced laws. The judiciary branch determined whether crimes were committed and the legislative branch was prohibited from passing bills of attainder, making findings that someone violated a law. With regard to Mr. Martin's question regarding why the two complaints were handled differently, Mr. Snyder recalled in December 2002 and on September 4, 2003, complaints were made that a Councilmember violated a provision of the ordinance which carried a criminal penalty. Therefore, in December, the Council decided based on his advice, it was appropriate for the matter to be prosecuted by the Executive branch and determined by the judiciary. The same issue has now been raised by Mr. Martin in a different context, the facts that Mr. Martin alleges constitute a crime. Based on his advice and the Council's decision on December 17, the matter was immediately referred to the City Prosecutor. With regard to why the second complaint was treated differently, Mr. Snyder explained the issue in the second complaint was whether the procedures in the ordinance were followed appropriately. He noted that although Mr. Martin may want a trial on his complaint at the Council level, it would be difficult to have a fair trial if matters were discussed and findings were made by a legislative body. He noted that action would intrude on the prosecutorial and judicial functions and would place Councilmembers accused of a crime in the position of taking the 5`h amendment in an interpretive setting or speak and waive constitutional privileges to which they were entitled. Mr. Snyder concluded the two situations were different. The issue before the Council tonight was whether the ordinance was applied correctly. The Council's motion on December 17, " Councilmember Dawson moved, seconded by Councilmember Wilson, to refer the matter to the Mayor's office for referral to the appropriate authorities to handle this matter" passed with a 6 -0 vote, with the Councilmember who was the subject of the complaint abstaining. Therefore, when this complaint was received, it was handled in the same manner as the December 2002 complaint in accordance with the Council's directive. Edmonds City Council Approved Minutes September 15, 2003 Page 7 Mr. Martin remarked he was at a loss to respond other than to say it was strange that a legislative body could not investigate or fact -find or refer a case on to an investigator or prosecutor itself. He disagreed with Mr. Snyder's interpretation. He pointed out the U.S. Congress investigated, did fact finding, and sometimes referred matters to prosecutors. He questioned why the Edmonds City Council could not do the same. Councilmember Plunkett referred to Mr. Martin's comment that the Council could refer the matter for investigation, pointing out that was what had been done. Mr. Martin disagreed, noting the first complaint was never reviewed by the Council; the Mayor referred it to the City Prosecutor. Councilmember Plunkett explained the Council referred matters such as this to a prosecutor as was done in this instance. Mr. Martin disagreed, noting the Mayor referred it, not the Council. Councilmember Wilson asked whether the Council's adoption of an interpretation on December 17 that all such issues be referred to the Prosecuting Attorney met Mr. Martin's intent. Mr. Martin asked why a committee was appointed to research the matter and make a recommendation regarding a change in the ordinance. Councilmember Wilson pointed out there had not been a change in the ordinance. Councilmember Wilson noted the Council in December 2002 reached consensus that actions of this nature, a criminal complaint alleged under this Chapter, were to be referred to the City Prosecuting Attorney since the Council should not take action on that type of complaint. He summarized the Council gave guidance to the City Attorney, Mayor and City Clerk that when complaints are received under those provisions that were of a similar type nature, based on the December 2002 decision, they are to be referred to the Prosecuting Attorney and not handled by the Council. He noted that had the Council reviewed the complaint, they would have referred it to the City Prosecuting Attorney. Mr. Martin disagreed, noting the Council had the right to investigate the complaint, censure an individual, or refer to a prosecutor. Mr. Snyder responded that Mr. Martin was correct; the Council had the power of censure under Roberts Rule of Order or may initiate an investigation; however, there were enormous differences in the burden of proof in a criminal prosecution. Councilmember Wilson pointed out the Prosecuting Attorney may or may not End there was sufficient evidence to address the matter in a criminal nature. Regardless of the report he provides the Council, the Council may determine other action should be taken. Mr. Snyder agreed, noting the Prosecutor may determine it was not appropriate for prosecution but refer the matter to the Council for further review. Councilmember Petso recalled in December the Council voted to refer that complaint to the Mayor for referral to the appropriate authorities. She questioned why that was not necessary in this instance. Mr. Snyder explained his advice in December was the same as tonight, that this was not an appropriate interpretation of the ordinance and would be of questionable constitutionality. He explained ordinances were to be interpreted as a whole to avoid an unconstitutional reading. His understanding of the Council's vote in December was that they adopted that interpretation of the ordinance. If the Council disagreed and wanted complaints of this nature to be presented to the Council individually, he indicated that would be his advice in the future. He understood the Council's vote in December to affirm his interpretation. Councilmember Petso noted the ordinance outlined a procedure such as the City Clerk shall cause the matter to be brought before the next Council meeting. Mr. Snyder reiterated ordinances were to be interpreted as a whole. The section Councilmember Petso referred to followed this language, "interpretations of this chapter and advisory opinions shall be made in the following matter." A process Edmonds City Council Approved Minutes September 15, 2003 Page 8 is then outlined in the ordinance whereby a public official or citizen can question an action. He noted the actions in question were advisory opinions and interpretations which were prospective in nature. Councilmember Petso clarified Item A alleged a criminal violation, therefore, the Council did not review it; however, Item B was an issue of interpretation and was appropriate for Council review. Mr. Snyder agreed. Councilmember Wilson noted if the Council established via its action in December 2002 an acceptable procedure for handling this type of complaint, the actions of the Mayor to forward the complaint directly to the City Prosecuting Attorney relied on the December 2002 decision and was an appropriate interpretation of the policy the Council established. Mr. Snyder noted the issue being questioned was his advice to the City Clerk; the Mayor was not involved in the process until later. He noted either the Council was affirming their prior interpretation or should provide different direction to staff. Councilmember Plunkett asked whether the Council needed to affirm their prior interpretation. Mr. Snyder recommended the Council dispose of the request for interpretation by motion. Mayor Haakenson referred to the letter from Mr. Martin and Mr. Tupper petitioning the Council for interpretation of the following issue, did Mayor Haakenson usurp the duties and responsibilities of both the City Clerk and the Edmonds City Council by forwarding the citizen complaint directly to the City Prosecutor without following the Edmonds City Code, and whether the Mayor's decision not to follow the process as required in ECC 1. 14.060 constituted a violation of the code. Councilmember Wilson asked whether the original inquiry was from the City Clerk. City Clerk Sandy Chase explained she received the complaint and contacted City Attorney Scott Snyder for advice. He advised her to forward it directly to the Prosecutor. She then contacted the Mayor's office to advise him the complaint had been received and the advice received from the City Attorney. Ms. Chase indicated she forwarded copies of the complaint to the prosecutor, the Council, and others. Mayor Haakenson advised Ms. Chase informed him of Mr. Snyder's advice and he agreed. Mayor Haakenson remanded the matter to Council for action. COUNCILMEMBER PETSO MOVED, SECONDED BY COUNCILMEMBER WILSON, THAT THE MAYOR DID NOT USURP THE DUTIES AND RESPONSIBILITIES OF THE CITY CLERK OR VIOLATE THE EDMONDS CITY CODE BY FAILING TO FOLLOW THE PROCEDURE OUTLINED IN ECC 1.14.060 BECAUSE THAT PROCESS IS NOT APPLICABLE TO A CRIMINAL COMPLAINT. MOTION CARRIED (5 -0). Councilmember Marin was not present for the vote. Mayor Haakenson noted reference had been made several times to the complaint against Councilmember Marin and asked whether the claim against Councilmember Marin could be stated in public. Mr. Snyder agreed it was public information but urged Mayor Haakenson to be cautious to avoid potentially making it more difficult for Councilmember Marin to obtain a fair hearing and the jury and judge to consider it fairly. Mayor Haakenson read from Mr. Martin's complaint against Councilmember Marin, "Council member Marin has violated the Edmonds City Code by not filing each and every one of his PDC forms and doing so within 10 days with the City Clerk's office for Edmonds public disclosure." Mayor Haakenson explained the City's Code required that every elected official, when they complete their public disclosure forms, to make copies of the PDC reports and file them with the City Clerk's office. With the advent of the Public Disclosure Commission and computers, he noted it may be time to review the ordinance in Edmonds City Council Approved Minutes September 15, 2003 Page 9 view of the City Clerk Office's ability to obtain the forms from the PDC's website in the event a citizen inquires. He concluded the process in the ordinance was outdated and eliminating the requirement to provide copies to the City Clerk would eliminate storage, paperwork, filing, etc. Councilmember Marin returned to the dais at 8:02 p.m. 4. AUDIENCE COMMENTS Ray Martin, 18704 94th Avenue W, Edmonds, disagreed with Mayor Haakenson's proposal to revise Official the ordinance, explaining that downloading the PDC reports took a long time. He noted when auditing fficial P g g p g g Disclosure Councilmember Marin's records, he also reviewed Councilmember Petso, Councilmember Wilson, and Council President Earling's and Councilmember Orvis' PDC records and found them generally in order. However, Councilmember Marin's file was grossly incomplete. He noted as of today, not every single report Councilmember Marin filed with the PDC was in the local file. Mr. Martin expressed concern that Councilmember Marin's reports were not date stamped or signed because they were apparently filed electronically. John Quast, 15714 75th Place W, Edmonds, as a past member of Edmonds Citizen Commission on Campaign Salaries for elected officials he recalled one of the tasks the Council requested of the Commission was to Contribution � q Letter study and report why more qualified citizens failed to run for public office in Edmonds. He recalled disrespect was one of the reasons most often cited. Mr. Quast explained last week he was the subject of a clear example of dirty tricks in local politics that may keep the best citizens from running for local office. He explained that one of his friends received and provided him a letter requesting support and campaign contributions for one of the City Council candidates. The letter purported to be from the committee to elect that individual and carried his name and address as a sender, implying that he was in support of the candidate and wanted his friends and neighbors to support the candidacy with their vote and contributions. Mr. Quast emphasized that he did not send the letter and considered the unauthorized use of his name and home address to solicit funds for this candidate malicious and constituted both identify theft and fraud. He advised he filed a report with the Edmonds Police Department and U.S. Postal Service and appealed to the Washington State Public Disclosure Commission to investigate this matter and enforce the full provisions of the law. He expressed concern that this false and misleading representation would be damaging to his reputation and his credibility in the community. He was uncertain how many in Edmonds received such a letter and indicated he was using this forum to inform as many citizens as possible that there was only one City Council candidate for whom he solicited support, Peggy Pritchard Olsen. He assured that if anyone in the community received a letter requesting support for another candidate, the letter was false. ampaign Roger Hertrich, 1020 Puget Drive, Edmonds, advised that he had personal information about the event ontribution tter Mr. Quast described, explaining it was a bad joke. He explained it was not intended to be malicious but to poke fun at one individual. He assured Mr. Quast that there were exactly two letters sent out. He indicated he had questioned . the person and understood his bad humor. He understood the individual tried to call Mr. Quast to apologize. He apologized to Mr. Quast for the individual., assuring there was no involvement by anyone running for office, "it was just a dumb thing." ommunity 5. REPORT ON CITY COUNCIL COMMUNITY SERVICES/DEVELOPMENT SERVICES Services/ COMMITTEE MEETING OF SEPTEMBER 9, 2003 Development Services Committee Councilmember Marin reported the Committee was provided an update on Dayton Street pedestrian improvements and the Committee asked that a mailing be sent to the neighbors to inform them on the Edmonds City Council Approved Minutes September 15, 2003 Page 10 progress of the project. Next, the Committee discussed home occupations including whether a threshold should be established whereby home occupations would be asked to move to a commercial location. Staff was asked to provide criteria information on home occupations at the October meeting. The Committee then discussed an ordinance codifying requirements for the adoption, publication, and distribution of administrative policies, rules, standards and code interpretations. Rob Michel had provided a list of 31 items for consideration; the Committee asked that the information regarding the top ten items from the list, interpretations and policy information, and suggestions for a notification process be provided at the October meeting. 6. MAYOR'S COMMENTS Mayor Haakenson had no report. 7. COUNCIL COMMENTS Council President Earling encouraged the public to vote. Councilmember Marin assured citizens there was nothing much to be worried about with regard to the complaint earlier on the agenda. He commented anyone who knows him knows he is human and that he tries to do more things than he should do at once which means sometimes he makes mistakes. Another thI ng anyone who knows him well knows that if he makes a mistake, he admits it and does his best to Public Official m we knows ere al y g correct it. And an who knows hill k there is nothing serious about the accusations that c Disclosure have been made. 1 Councilmember Marin explained anyone who had done any PDC filings were aware it was a difficult process to understand and it was not uncommon to make a few mistakes. Before he became involved as a public servant, he might have looked around the City and questioned why someone wasn't doing something such as emptying a garbage can. Now that he became involved as a public servant, more often than not rather than looking at a problem and questioning why someone else had not handled it, he was more inclined to get involved and try to do something. He used the analogy of dropping a piece of garbage on the way to the garbage can; the accusations against him were the equivalent of dropping something and then picking it up. He commented most civic - minded people would be satisfied when someone admitted they made a mistake and corrected it. He questioned the motivation for this behavior and whether it was a watchdog or something else. He suggested his accusers could be more productive by getting involved in finding solutions rather than pointing out mistakes. Councilmember Marin assured when the investigation by the PDC and Snohomish County Prosecutor was complete, citizens would find nothing much had happened. He concluded if his accusers continued on this course, they would further diminish their credibility. With no further business, the Council meeting was adjourned at 8:21 p.m. V ON, MAY • SANDRA S. CHASE, CITY CLERK Edmonds City Council Approved Minutes September 15, 2003 Page 11 AGENDA EDMONDS CITY COUNCIL Council Chambers, Public Safety Complex 250 5t' Avenue North, Edmonds 7:00 - 10:00 p.m. SEPTEMBER 15, 2003 SPECIAL MONDAY MEETING 7:00 p.m. - Call to Order Flag Salute 1. Approval of Agenda 2. Consent Agenda Items (A) Roll Call (B) Approval of City Council Meeting Minutes of August 26, 2003. (C) Approval of claim checks #64953 and 64964 through #65146 for the week of August 25, 2003, in the amount of $154,387.71. Approval of claim checks #65149 through #65256 for the week of September 1, 2003, in the amount of $90,224.21. Approval of claim checks #65257 through #65262 through #65420 for the week of September 8, 2003, in the amount of $383,644.27. Approval of payroll direct deposits and checks #36549 through #36683 for the period August 16 through August 31, 2003, in the amount of $791,830.71. (D) Acknowledge receipt of Claim for Damages from A. Ansari ($225.00), Sheldon Soule ($17,284.57), Ray Lamb (amount undetermined), and Jeff Bowers (amount undetermined). (E) Approval of Findings of Fact for a Closed Record Review held on August 19, 2003, regarding an appeal of the Hearing Examiner's decision to approve the design of an addition to Rory's Pub & Broiler. The property is zoned BC (Community Business) and is located at 105 Main Street. (Appellant: Paris Partnership / Applicant: Taylor Gregory Butterfield Architects / File No. ADB- 03-32 and AP -03 -117) (F) Approval of Findings of Fact for a Closed Record Review held on August 19, 2003, regarding an appeal of the Hearing Examiner's decision to approve a variance request for a mixed -use building. Specifically, a variance from Edmonds Community Development Code Section 16.50.020(B), which requires commercial development on the ground floor to a minimum depth of 30 feet. The property is zoned BC (Community Business), and is located at 303 Dayton Page 1 of 2 1 CITY COUNCIL MEETING AGENDA September 15, 2003 Page 2 of 3 Street. (Appellant: Finis Tupper / Applicant: AD Shapiro Architects / File No. AP -03 -116, ADB -03 -38 and V- 03 -85) (G) Approval of 2004 Equipment Rental Rates. (H) Report on bids opened on August 26, 2003 for the SR 104 Sanitary Sewer Rehabilitation project and award of contract to Michels Pipeline Construction, Inc. ($554,967.47, including sales tax) (1) Report on bids opened on August 26, 2003 for the Meters D & E Rehabilitation and Pump Station Demolition and award to Gary Harper Construction, Inc. for the amount of $163,654.92, including sales tax. (J) Authorization for Mayor to sign Professional Services Agreement with Brown and Caldwell for Screenings System Improvement Project. (K) Authorization for the Mayor to sign an Interlocal Cooperation Agreement with the Port of Edmonds for Marina Beach Pier Electrical Power. (L) Proposed resolution setting October 21, 2003, as the hearing date for a request to vacate a 12 -foot wide by 75 -foot long portion of the alley immediately to the north of 920 - 8th Avenue South. (Applicants: Thomas and Susan Nicholson / File No. ST -03 -120) (M) Proposed ordinance vacating the easterly three feet of the right -of -way of the 8500 block of Bowdoin Way. (File No. ST- 2003 -122) (l) Proclamation in honor of Constitution Week, September 17 - 23, 2003. 3. (30 Min.) Discussion of the referral process included in Edmonds City Code Chapter 1.14, Public Official Disclosure. (A) Complaint received September 4, 2003 from Raymond J. Martin regarding Public Official Disclosure. (B) Petition received September 8, 2003 from Finis Tupper and Raymond Martin regarding interpretation of duties and responsibilities of the Mayor, City Clerk and City Council pertaining to processing the above referenced complaint. 4. Audience Comments (3 Minute Limit Per Person) 5. ( 5 Min.) Report on the City Council Community Services /Development Services Committee Meeting of September 9, 2003. CITY COUNCIL MEETING AGENDA September 15, 2003 Page 3 of 3 6. ( 5 Min.) Mayor's Comments 7. (15 Min.) Council Comments Parking and meeting rooms are accessible for persons with disabilities. Please contact the City Clerk at (425) 779 -0245 with 24 hours advance notice for special accommodations. The Council Agenda as well as a delayed telecast of the meeting appears on cable television Government Access Channel 21.