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02/01/2011 City CouncilEDMONDS CITY COUNCIL APPROVED MINUTES February I The Edmonds City Council meeting was called to order at 5:07 p.m, by Mayor Cooper in the Council Chambers, 250 5`h Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT STAFF PRESENT Mike Cooper, Mayor Phil Williams, Public Works Director Strom Peterson, Council President Carl Nelson, CIO Steve Bernheim, Councilmember Debi Humann, Human Resources Director D. J. Wilson, Councilmember (arrived 5:15 p.m.) Linda Hynd, Deputy City Clerk Michael Plunkett, Councilmember Jana Spellman, Senior Executive Council Asst. Lora Petso, Councilmember Jeannie Dines, Recorder Adrienne Fraley- Monillas, Councilmember Diane Buckshnis, Councilmember 1. APPROVAL OF AGENDA COUNCILMEMBER FRALEY - MONILLAS MOVED, SECONDED BY COUNCIL PRESIDENT PETERSON, TO APPROVE THE AGENDA IN CONTENT AND ORDER. MOTION CARRIED UNANIMOUSLY. (Councilmember Wilson was not present for the vote.) 2. CONSENT AGENDA ITEMS Councilmember Petso requested Item B be removed from the Consent Agenda. COUNCILMEMBER PETSO MOVED, SECONDED BY COUNCIL PRESIDENT PETERSON, TO APPROVE THE REMAINDER OF THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. (Councilmember Wilson was not present for the vote.) The agenda items approved are as follows: A. ROLL CALL C. APPROVAL OF CLAIM CHECKS #123521 THROUGH #123661 DATED JANUARY 27, 2011 FOR $1,760,037.22 D. REPORT ON FINAL CONSTRUCTION COSTS FOR TALBOT ROAD EMERGENCY CULVERT REPAIR PROJECT AND COUNCIL ACCEPTANCE OF PROJECT E. AUTHORIZATION TO CONTRACT WITH JAMES G. MURPHY AUCTIONEERS TO SURPLUS CITY VEHICLES AND EQUIPMENT ITEM B: APPROVAL OF CITY COUNCIL MEETINGS OF JANUARY 25, 2011 Councilmember Petso explained there is a typographical error in the minutes regarding an RCW citation on the first page and that staff should correct that and schedule the minutes for approval at the next meeting. Edmonds City Council Approved Minutes February 1, 2011 Page 1 Council President Peterson introduced Matt, Troop 312, who was attending tonight's Council meeting working on his Citizenship Merit Badge. He is looking for ways he and his troop can help the City. Mayor Cooper commented he was the Scout Master of Troop 312 for 6 -7 years approximately 15 years ago. He thanked Troop 312 for recycling Christmas trees. 3. INTERVIEW CITY ATTORNEY APPLICANTS Council President Peterson reported at their weekly meeting, Mayor Pro Tern Petso, Mayor Cooper and he discussed the procedure for conducting interviews. He suggested each Councilmember be given six minutes to ask and have their questions answered. He suggested Councilmember choose from the list of questions submitted by Councilmembers and staff as well as ask any other questions they wished. He recommended similar questions be asked of each candidate to allow an apple -to- apples comparison. Councilmember Plunkett observed the agenda does not include public comment, only deliberation. He asked whether the intent was to make a decision tonight or delay a decision until the public has an opportunity to comment. Council President Peterson did not anticipate a final decision would be made tonight. His intent was to interview the applicants and under deliberation discuss the applicants' merits as well as next steps such as narrowing the applicants to two, determining whether additional questions needed to be asked, etc. Councilmember Fraley- Monillas explained when she was first elected she met with Mr. Snyder and Mayor Haakenson to discuss the advantages of an in -house versus a contract attorney. She relayed her experience with a previous employer that served over 43,000 people and had similar resources. They were able to reduce their budget by 30% while providing better service to the population via an in -house attorney who managed day -to -day issues. She misunderstood that this was the way the Council was moving tonight. She has a number of concerns regarding fair and equal process for the candidates. One candidate is blamed for a neighborhood dispute, a complaint filed by a Department Director against Councilmembers, disregard for environmental laws and issues that other jurisdictions have determined. This applicant has also been in adversarial litigation with two members of the current City Council. Councilmember Fraley- Monillas said she will not participate in a witch hunt spurned by a small group of citizens and few City electeds. She encouraged the Council to treat each applicant with dignity and respect. If the Council wanted to identify the best candidate in a fair and equitable fashion, she encouraged them to ask the same questions of each applicant. She recommended keeping all questions to job related issues and not personal related issues in order to keep the process equitable and fair for all. Councilmember Buckshnis recalled in 2010, then Council President Bernheim encouraged Councilmembers to research the firms including checking references and talking to them. She called the applicant who was the City Manager and City Attorney in Puyallup and asked him a variety of non - attorney related questions. Subsequently Council President Peterson urged Councilmembers not to talk with applicants prior to the interviews. The list of questions she prepared regarding issues she felt were very important was not included in list of questions. She suggested some of the questions should have been sent to the applicants ahead of time such as past year expenditures. Councilmember Petso disclosed she has worked with Scott Snyder repeatedly over the past decade and was in litigation against a developer in providing playfields for the youth of Edmonds. Tonight's decision is legislative, she was not on a witch hunt. Her selection of a City Attorney will be based on what is best for the entire City. Mr. Snyder did not participate in the most recent litigation, another member of Ogden Murphy Wallace, Zach Lell, participated. She assured there are no hard feelings, everything is in the public record, and everything was handled professionally and has been resolved. Edmonds City Council Approved Minutes February 1, 2011 Page 2 Councilmember Bernheim advised before becoming a Councilmember, a property owner across the alley from his home proposed to demolish the existing houses and develop a building and the City granted him a permit to do so. His neighbor Darrell Marmion, himself and their wives with financial support from other neighbors challenged the City's decision. The appeal went to City Council on a closed record review and the appeal was denied. Councilmember Plunkett voted against the appeal and Councilmember Petso voted in favor of the appeal. He emphasized that had nothing to do with the interviews. They appealed to Superior Court and Ogden Murphy Wallace represented City although he did not recall which attorney. The Judge applied the ordinance to situation the appeal was upheld. He suggested it was appropriate to consider the performance of the current City Attorney in selecting a City Attorney. Councilmember Wilson disclosed he has never sued the City. He did send Mr. Snyder an email stating some people were interested in him providing a flat fee proposal. He also emailed some comments regarding process to Council President Peterson. He advised he may or may not ask questions of the applicants and requested he be allowed to ask questions last. Council President Peterson relayed he had asked in his email to the Council that Mayor Cooper be provided the last opportunity to ask questions during the interviews so that he could raise any staff questions that Councilmembers did not ask. Mayor Cooper explained he planned to keep track of the questions that were asked from list and ask any that the Council did not ask, finding it particularly important that staff's questions were addressed. He suggested some of detail that Councilmembers Bernheim and Buckshnis were interested in may warrant either a follow -up interview or asking the applicants to respond in writing to additional questions. Council President Peterson explained following Councilmembers' and the Mayor's questions, there would be time for additional questions and an opportunity for the applicant to ask questions or provide closing remarks. He recommended maintaining a one hour time limit for each applicant. Councilmember Buckshnis asked whether the Council was required to have public comment at every meeting. Council President Peterson recalled the Council has had meetings without public comment. A follow up meeting may be a more appropriate time for public comment. COUNCILMEMBER WILSON MOVED TO AMEND THE AGENDA TO ADD PUBLIC COMMENT. COUNCILMEMBER BERNHEIM SECONDED THE MOTION. Councilmember Plunkett commented with the addition of public comment to the agenda, it is essential the Council not make a decision tonight and take further public comment before making a decision. MOTION CARRIED UNANIMOUSLY. Interviews• Council President Peterson described the procedure for the interview to each applicant. The Council interviewed the following City Attorney applicants: Gary McLean Scott Snyder, Ogden Murphy Wallace PLLC (Mr. Snyder was accompanied by attorneys Bio Park and Angela Belbeck) Jeffrey Taraday, Lighthouse Law Group PLLC (Mr. Taraday was accompanied by attorneys Sharon Cates, Rosa Fruehling- Watson, Patricia Taraday, and Susan Drummond) Edmonds City Council Approved Minutes February 1, 2011 Page 3 • Thom Graafstra and Paul McMurray, Weed Graafstra and Benson, Inc., PS 4. COUNCIL DELIBERATIONS Council President Peterson commented his intent was not a lengthy deliberation regarding merits of the candidates but rather deliberation on next steps. He suggested the Council narrow the candidates to two and decide whether to request they respond to written questions or schedule a second interview. Councilmember Petso preferred not to narrow the list of applicants tonight and to keep all four applicants in consideration until she the public had an opportunity to comment. Councilmember Bernheim commented he did not need any additional information from the candidates and was prepared to deliberate on a choice after hearing from the public. He suggested an opportunity be provided for public comment at the next Council meeting and then the Council deliberate regarding which of the four outstanding candidates to select. Councilmember Plunkett commented he did not need any further information from the firms but preferred not to narrow the candidates until the public has had an opportunity to speak to the Council. Councilmember Fraley- Monillas commented the references had not yet been checked for the applicants. She preferred to narrow the candidates to two before checking references. She anticipated if all four applicants were under consideration, it would be difficult for the Council to reach consensus. She suggested each Councilmember identify their first and second choice to determine whether there were two finalist candidates /firms and then check references. She was uncomfortable making a choice without references and public comment. Council President Peterson acknowledged he requested Councilmembers refrain from checking references or talking directly to applicants before tonight's interviews. Human Resources staff and other Human Resources professionals indicated that is best business practice. Now that the interviews have been conducted, he encouraged Councilmembers to contact the applicants with additional questions and to share the question /response with the Council if appropriate. He cautioned against deliberating via email. He suggested moving forward with checking references and scheduling final deliberation and a decision at the February 22 meeting. Councilmember Wilson suggested after taking public comment tonight and at next Tuesday's meeting, the Council winnow the candidates to two at next Tuesday's meeting. He expressed interest in obtaining further citizen and staff feedback on the two finalists. Recalling that a reception is often scheduled at Council with finalists for Director positions, he suggested scheduling a reception for the two finalists on February 15 to allow the Council and the public an opportunity to talk with the applicants. He was also agreeable to requesting the applicants respond to written questions. Councilmember Fraley- Monillas agreed with Councilmember Wilson's suggestions. She suggested one person check the applicants' references rather than individual Councilmembers each calling applicants' references. Mayor Cooper commented although this a professional services contract, best employment practices are for one person, either Council or Council staff, to contact references using a set of questions and to share the information with Council. He agreed having all Councilmembers call references could be duplicative for the Council and the references. He suggested the Council could ask the Human Resources Director for a question format, noting there are legal ramifications of asking inappropriate questions. He recommended the Council President or one person assigned by the Council President make the reference calls. Council President Peterson offered to work with Human Resources staff and the Mayor on calling references. Edmonds City Council Approved Minutes February 1, 2011 Page 4 Councilmember Bernheim disagreed with Mayor Cooper's suggestion, pointing out each candidate has provided numerous references. All the conversations he has had with the attorneys' references have been very gracious and cooperative. He pointed out each Councilmember is making their own decision and he did not find value in relying on a secondhand report based on preselected questions. Mayor Cooper acknowledged it was a policy decision that was ultimately up to the Council. He was offering suggestions with regard to best employment practices and the most effective way to complete the process. He referred to a memo Human Resources Director Debi Human forwarded the Council from Ogden Murphy Wallace regarding the type of questions that can legally be asked of references. Councilmember Plunkett concurred with Mayor Cooper and Council President Peterson regarding a coordinated effort to contact references, recognizing that each Councilmember has a duty and obligation to do their own due diligence. In light of the importance of this decision, he preferred not to prevent any Councilmember from conducting whatever due diligence they wished. Councilmember Wilson agreed with Councilmember Plunkett. He encouraged Council President Peterson or his delegate to call references and provide a report to the Council. He planned to call a few references himself. Councilmember Fraley- Monillas agreed it was ultimately the Council's responsibility to consider candidates in a thorough and unbiased manner. Although Councilmember Bernheim has found the references he called to be pleasant, she anticipated they may be less pleasant after being contacted by six other Councilmembers. She did not plan to call references herself. She relayed there are laws governing what an employer can reveal regarding a previous employee. COUNCILMEMBER WILSON MOVED TO EXTEND 30 MINUTES. COUNCILMEMBER BUCKSHNIS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. Human Resources Director Debi Humann relayed under Washington State law an employer can provide factual information in response to a reference check. However, most employers will not provide information as it opens them to litigation. Most employers will only provide salary, hire and termination and whether the person would be rehired. Human Resources staff may provide more information to each other. Councilmember Buckshnis planned to do her own reference checks, viewing that as her responsibility. She relayed she has been called many times with regard to a reference. Mayor Cooper clarified staff would not conduct reference checks until directed to do so by Council. COUNCILMEMBER WILSON MOVED TO TAKE PUBLIC COMMENT ON THIS MATTER ON FEBRUARY 8, WINNOW THE SELECTION TO TWO CANDIDATE FIRMS ON FEBRUARY 8, HOLD A RECEPTION FOR THE FIRST HALF HOUR OF THE FEBRUARY 15 COUNCIL MEETING, SCHEDULE FINAL DELIBERATIONS ON FEBRUARY 22 AND REQUEST STAFF PROVIDE ANY FEEDBACK BY THE FEBRUARY 22 MEETING. COUNCILMEMBER FRALEY - MONILLAS SECONDED THE MOTION. Council President Peterson expressed concern with setting precedent via a reception. Councilmember Wilson responded it would provide an opportunity for the public and the Council to talk with the candidates. Edmonds City Council Approved Minutes February 1, 2011 Page 5 Councilmember Petso preferred to schedule public comment at the February 8 meeting and make a decision regarding the remainder of the process after hearing from the public. COUNCILMEMBER BERNHEIM MOVED TO AMEND THE MOTION TO ELIMINATE THE RECEPTION ON FEBRUARY 15. COUNCILMEMBER PLUNKETT SECONDED THE MOTION. AMENDMENT CARRIED (6 -1), COUNCILMEMBER WILSON VOTING NO. Councilmember Bernheim suggested deliberating on all four candidates rather than winnowing the candidates to two. He supported accepting public comment on February 8 and having deliberations on all four candidates at the following meeting. Councilmember Plunkett proposed and Councilmembers Wilson and Fraley- Monillas accepted the following friendly amendment: TO REDUCE THE NUMBER OF CANDIDATES AS APPROPRIATE AT THE FEBRUARY 8 MEETING. Council President Peterson clarified the dates as follows: February 8: Public comment with the possibility of reducing the number of candidates February 22: Final deliberations and decision with staff and Mayor input MAIN MOTION AS AMENDED CARRIED UNANIMOUSLY. 4A. AUDIENCE COMMENTS Joan Bloom, Edmonds, asked how the Council could have public comment on February 8 when that is Council Committee meeting. She suggested taking public comment at the February 15 Council meeting. Mayor Cooper advised a Special Council meeting is scheduled on February 8 at 6:00 p.m. to deliberate on bond refinancing, followed by Committee meetings. Ms. Bloom urged the Council to ensure there was sufficient notice of the opportunity to provide comment and the early start time. Mayor Cooper pointed out the public would also have an opportunity to comment during Audience Comments at the February 15 meeting. 5. MAYOR'S COMMENTS Mayor Cooper thanked the Council for participating in a grueling process in a very professional manner. 6. COUNCIL COMMENTS Councilmember Fraley- Monillas commented it was a great process and she thanked everyone who participated. The interviews were good and it was good to hear from variety of candidates regarding how they could provide services in Edmonds. Councilmember Buckshnis reported the formal investigation of a complaint of workplace harassment against Councilmember Plunkett and her is complete and found they did not engage in any discrimination including harassment against the Finance Director. The conclusion is based on the Finance Director's own statements. She encouraged anyone interested in reading the full report to email or call her. She anticipated it would be reported on myedmondsnews.com. Councilmember Wilson commended Council President Peterson for navigating a potentially challenging process. Edmonds City Council Approved Minutes February 1, 2011 Page 6 Councilmember Bernheim encouraged anyone listening to tonight's meeting to inform Councilmembers of their opinion regarding the candidates. With regard to references, he advised the applicants provided a total of 37 references; he contacted 8 of them and did not anticipate the references would be overwhelmed with calls from Councilmembers. Councilmember Plunkett thanked Council President Peterson for his efforts, particularly his willingness to accept Council suggestions and make adjustments to processes. Councilmember Plunkett noted the retreat agenda includes a discussion regarding REET, reports by staff and other entities, setting Council priorities and 2011 Council Action Plan but no materials were provided other than with regard to REET. He requested if any additional information was available it be provided to the Council prior to the retreat. Council President Peterson responded he intentionally did not provide additional materials. His vision of a retreat was for the Council to hear reports to provide a basis of understanding and then discuss issues the Council wants to work on. He did not envision a formal process but rather an open conversation to figure out what the Council wants to accomplish in the coming year. Council President Peterson explained one of the reasons he did not ask for a great deal of information from staff was the Council will create actionable items at the retreat, not take action. He envisioned the retreat as an opportunity for discussion. Mayor Cooper assured staff will not provide a great deal of written materials other than possibly one bulleted slide per department. Council President Peterson thanked Councilmembers for indulging him in the interview process as well as thanked citizens who contacted him with questions. 7. ADJOURN With no further business, the Council meeting was adjourned at 10:31 p.m. Edmonds City Council Approved Minutes February 1, 2011 Page 7