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Cmd82322 Edmonds City Council Approved Minutes August 23, 2022 Page 1 EDMONDS CITY COUNCIL MEETING APPROVED MINUTES August 23, 2022 ELECTED OFFICIALS PRESENT Mike Nelson, Mayor Vivian Olson, Council President Will Chen, Councilmember Neil Tibbott, Councilmember Susan Paine, Councilmember Laura Johnson, Councilmember ELECTED OFFICIALS ABSENT Diane Buckshnis, Councilmember STAFF PRESENT Michele Szafran, Associate Planner Jeff Taraday, City Attorney Scott Passey, City Clerk Jerrie Bevington, Camera Operator 1. CALL TO ORDER/FLAG SALUTE The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Nelson in the Council Chambers, 250 5th Avenue North, Edmonds, and virtually. The meeting was opened with the flag salute. 2. LAND ACKNOWLEDGEMENT Councilmember L. Johnson read the City Council Land Acknowledge Statement: “We acknowledge the original inhabitants of this place, the Sdohobsh (Snohomish) people and their successors the Tulalip Tribes, who since time immemorial have hunted, fished, gathered, and taken care of these lands. We respect their sovereignty, their right to self-determination, and we honor their sacred spiritual connection with the land and water.” 3. ROLL CALL City Clerk Scott Passey called the roll. All elected officials were present with the exception of Councilmember Buckshnis. COUNCILMEMBER CHEN MOVED, SECONDED BY COUNCILMEMBER L. JOHNSON, TO EXCUSE COUNCILMEMBER BUCKSHNIS. MOTION CARRIED UNANIMOUSLY. 4. PRESENTATIONS 1. CITY ATTORNEY ANNUAL REPORT City Attorney Jeff Taraday advised this report will cover about 18 months. The presentation differs somewhat from the PowerPoint in the packet in response to council comments he received. He introduced himself and other members of the law firm and described matters each attorney handles: • Jeff Taraday – 24 years’ experience in municipal law o City Council Edmonds City Council Approved Minutes August 23, 2022 Page 2 o Development Services o Mayor’s Office o Engineering o Public Works o Litigation • Sharon Cates – 15 years’ experience in municipal law o Human Resources o Engineering o Parks & Recreation o Public Works o CARES Act and ARPA compliance o Police reform legislation o Job Order Contracting o Community Services • Mike Bradley o Contracts with Lighthouse o Has extensive expertise federal law related to: ▪ Cable TV Franchises ▪ Telecommunications Law ▪ FCC Proceedings Patricia Taraday introduced herself and described matters she handles: • 13 years’ experience in municipal law o City Clerk (Public Records Requests) o Code enforcement o Police (Public Records Requests) o Mayor’s Office o Development Services o City Council Angela Tinker introduced herself and described matters she handles: • Public Works advising on right-of-way management • Franchise Negotiations • Code interpretation and application and proposed code drafting • Wireless issues • Assisted Public Works apply to Department of Revenue for sales tax exemption for carbon recovery project purchases at WWTP Beth Ford introduced herself and described matters she handles: • Litigation o Written discovery, depositions, pretrial motions, and trial preparation for: ▪ City of Edmonds v. Ebbtide - City attempting to secure rights to construct an overwater walkway in front of the Ebbtide to fill in a missing link in the Edmonds marine walkway - Going to trial in October ▪ Shippen v. City of Edmonds, - City was successful in defending against a resident’s attempt to sue the City for a landslide that occurred on their property ▪ Tupper v. City of Edmonds - City was successful in defending against a claim for an OPMA violation against the city council and the mayor at the beginning of the pandemic Edmonds City Council Approved Minutes August 23, 2022 Page 3 ▪ Code enforcement matters that proceeded to Superior Court o Worked with WWTP in appealing the Puget Sound Nutrient General Permit to the Environmental and Land Use Hearing’s Office in concert with other cities… o Worked with Edmonds Police Department to update the City’s police policy manual in response to police reform legislation passed in 2021 and 2022 o Participated in City’s homeless taskforce Tom Brubaker introduced himself and described matters he handles: • Served as a city attorney in other jurisdictions for 31 years • Council meeting backup • Advise on right-of-way and franchise issues • Draft ordinances and resolutions • Worked with Public Works on bid document preparation and bid award for Civic Park • Special Projects Mr. Taraday reviewed: • City Attorney Team Stats - January 1, 2021 through December 31, 2021 o Lighthouse worked 3,367 hours for Edmonds o 2021 Top 10 matters 10. Shippen v. City of Edmonds (112 hours) 9. Development Services (146 hours) 8. Public Works (152 hours) 7. Mayor’s office (167 hours) 6. City Clerk (171 hours) ▪ Primarily public records, now in Administrative Services 5. AT&T - small cell (218 hours) 4. Human Resources including labor negotiations (276 hours) 3. City Council (441 hours) 2. Police Department (454 hours) ▪ Higher than usual due to implementing police reform legislation 1. Engineering (680 hours) • City Attorney Team Stats - January 1, 2022 through June 30, 2022 o Lighthouse worked 1,855 hours for Edmonds o 2022 Top 10 matters (so far) 10. Parks & Recreation (61 hours) 9. Mayor’s Office (69 hours) 8. City Clerk (85 hours) ▪ Primarily public records, now in Administrative Services 7. Police (108 hours) 6. Human Resources (120 hours) 5. Development Services (180 hours) 4. Tupper OPMA (186 hours) 3. Public Works (242 hours) 2. City Council (304 hours 1. Engineering (309 hours) • Pending Litigation with Lighthouse o Edmonds v. Ebb Tide ▪ Declaratory judgment. Three partial summary judgment motions in the City’s favor thus far: 1. City’s Easement was ruled to be valid 2. Easement height limit has also been established Edmonds City Council Approved Minutes August 23, 2022 Page 4 3. Construction of an improved walkway was contemplated by the parties ▪ October 2022 trial on remaining issues of whether easement allows an elevated walkway. o Tupper v. Edmonds ▪ City immediately stipulated to an OPMA violation that occurred related to the City’s first Zoom executive session where things did not go as should have. - OPMA penalty claim dismissed on summary judgment. - Motion for reconsideration pending. • WCIA Coverage o Claims arising from alleged: ▪ Employment related action, e.g. retaliation and harassment ▪ Police excessive force ▪ Land use damage ▪ Auto liability ▪ Defective street or sidewalk ▪ Sewer obstruction ▪ Premises liability ▪ Other negligence • Big picture • Who is the client? o RPC 1.13(a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents • The attorney - client relationship o AttorneyOrganizational clientDuly Authorized Constituents • Duly Authorized Constituents? • What about the council’s constituents, the citizens? Edmonds City Council Approved Minutes August 23, 2022 Page 5 • Why no direct interaction with citizens? o RPC 1.6(a): A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). o RPC 1.6, comment [4]: Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. o RPC 1.6, comment [21]: The phrase “information relating to the representation” should be interpreted broadly. The “information” protected by this Rule includes, but is not necessarily limited to, confidences and secrets. ... o When legal issues arise in public, Lighthouse is not allowed to directly engage with the public. The city council or mayor could direct them to engage in that way. The public might benefit from more clarity around some of legal issues that arise in the community. in community. If they were directed to engage on that level, it would take a tremendous amount of time. Another way legal issues can be clarified is councilmembers or the mayor asking questions during council meeting and he responds. • Same concept applies to the City’s relationship with other law firms • So you aren’t the client…are your communications still confidential? o RPC 1.13, comment 2: When one of the constituents of an organizational client communicates with the organization's lawyer in that person's organizational capacity, the communication is protected by Rule 1.6. ▪ …This does not mean, however, that constituents of an organizational client are the clients of the lawyer. The lawyer may not disclose to such constituents information relating to the representation except for disclosures explicitly or impliedly authorized by the organizational client in order to carry out the representation or as otherwise permitted by Rule 1.6. - City attorney is duty bound, unless explicitly or impliedly authorized, to keep conversations with councilmembers, mayor or directors confidential. • Types of City Attorney relationship o Elected o City Employee appointed by Executive o Contract with law firm pursuant to City Council’s contracting authority • Contract vs. In-house o Hiring/Firing Authority: does this matter? o Intellectual Capacity: 7 brains vs. x brains ▪ A city Edmonds’ size would typically not have more than two in-house attorneys o Cost: depends on... ▪ Level of service chosen (x) under each scenario ▪ Who bears budget risk • Types of City Attorney Contracts o Flat Fee (status quo): all-inclusive within predefined scope; the fee is both a ceiling and a floor ▪ Availability and budget are highly predictable o Retainer: the fee is a floor, not a ceiling ▪ Availability is predictable; budget is less predictable o Hourly: no floor or ceiling ▪ Availability and budget are not predictable • Budget Risk o Flat Fee (current arrangement): ▪ Lighthouse assumes budget risk Edmonds City Council Approved Minutes August 23, 2022 Page 6 o Retainer: City assumes budget risk o Hourly: City assumes budget risk • City Attorney Team Stats - January 1, 2021 through December 31, 2021 o Lighthouse worked 3,367 hours for Edmonds o Earned flat monthly fee of $51,878 ($622,536 annually) for all civil work including litigation ▪ = $185 average effective hourly rate o Comparing $185 to the hourly rates paid by other cities in 2021 ▪ Maple Valley (Lighthouse): $243 - $324 ▪ Issaquah (Ogden Murphy): $230 - $292 ▪ Kenmore (Inslee Best ): $247 - $267* ▪ Mukilteo (Ogden Murphy ): $227 - $267 (with most hours $227 - $247) ▪ Lynnwood (Inslee Best): need to obtain rates *Rates resulted from 2019 competitive RFP process. 2021 rates shown here need to be confirmed. o Amount saved in 2021 compared to these market rates ▪ Average rate paid by Issaquah, Mukilteo and Kenmore = approx. $250/hours ▪ $250 x 3367 hours = $841,750 ▪ $841,750 - $622,536 = approximately $219,214 in savings • City Attorney Team Stats - January 1, 2022 through June 30, 2022 o Lighthouse worked 1,855 hours for Edmonds o Earned flat monthly fee of $53,953 ($323,718 over first six months of 2022) for all civil work including litigation ▪ = $175 average effective hourly rate o Comparing $175 to the hourly rates paid by other cities in 2022 ▪ Maple Valley (Lighthouse): $253 - $337 ▪ Issaquah (Madrona): $250 - $310* ▪ Kenmore (Inslee Best ): need to obtain rates ▪ Mukilteo (Ogden Murphy): $238 - $281 (mostly $238 - $260) ▪ Lynnwood (Kenyon Disend): $195-$370 (mostly $250 - $310)** *Rates result of 2021 competitive RFP process. **Rates result of 2021 competitive RFP process. o Amount saved in first six months compared to these market rates ▪ Average rate paid by Issaquah, Mukilteo, and Lynnwood = approximately $270/hours ▪ $270 x 1855 hours = $500,850 ▪ $500,850 – $323,718 = approximately $177,132 in savings Councilmember L. Johnson commented a lot of detail was provided regarding why the flat fee was beneficial to Edmonds. As someone who was not present for the discussions prior to Lighthouse being retained and did not know all the history, she asked how a flat fee was selected and why Lighthouse wanted to represent Edmonds via a flat fee, especially when they represent Maple Valley on an hourly basis. Mr. Taraday answered Lighthouse was formed shortly before the City did an RFP in late 2010/early 2011. Even though Lighthouse had a great team, they were new and did not have a long track record. They knew in order to attract a major client like Edmonds, they would need to think outside the box and do something creative and the flat fee was their solution. Candidly, they asked themselves why a city like Edmonds would contract with this new law firm when they are already working with an established firm. At the time, the discussion regarding the services being provided by Ogden Murphy included that their costs had significantly exceeding the legal budget for several years prior to issuing the RFP. Mr. Taraday continued, one of the things Lighthouse felt they could offer was a cost containment strategy as an incentive to get Edmonds to take a leap of faith with them. Over the years, Lighthouse has decided to take a “don’t fix what’s not broken approach” with respect to the flat fee. Frankly, it would be to Edmonds City Council Approved Minutes August 23, 2022 Page 7 Lighthouse’s benefit not to offer a flat fee, but Edmonds is in a sense getting a volume discount from Lighthouse. Edmonds is Lighthouse’s largest client and a client they want to keep. While it results in them working for less than market value, for a small firm it provides a lot of stability that they otherwise would not have. On balance, they are willing to continue it as long as it is not too much of a dip from market. At Council President Olson’s request, Mr. Taraday offered to email council the presentation slides that were not in the packet. Council President Olson thanked Mr. Taraday for responding to questions and incorporating them into the presentation. Councilmember Chen thanked Mr. Taraday for the presentation, especially the detailed hours information that he requested. As a CPA operating a business, he was looking for opportunities to cut costs. For legal services, there is some elasticity, such as the council delegating Lighthouse to respond to comments, articles, etc. in the news media. He recognized that might address some of the public’s questions, but it would significantly increase Lighthouse’s work volume. Hypothetically if the City had $300,000 for legal fees, he asked what areas of service there were opportunities to reduce. Mr. Taraday answered if the City’s financial situation was dire and the legal budget needed to be reduced to $300,000, Lighthouse would probably go back to an hourly fee and let the council decide where to prioritize its legal resources. The City currently does not have to make those choices because Lighthouse basically does everything. Lighthouse internally prioritizes work based on what the council, mayor and directors are asking them to do. Mr. Taraday continued, if the City needed to make a severe budget cut, they would turn it back to council to identify how they wanted to reduce legal services; which services the council considered high value and which did they consider lower value. For example, the city attorney is not required to attend council meetings. Council meeting hours are a significant amount each year; the council could say the city attorney does not need to attend council meetings. He did not recommend that, but it could be done to significantly cut costs. He knew of cities with significantly smaller budgets than Edmonds and that is often a choice they make, not having legal counsel at all council meetings and instead calling the attorney when they have a question which is not always a good strategy for staying out of trouble. One of the advantages of the flat fee is there is no disincentive to working with the city attorney; anytime anyone has a question or concern, they can call or email and get their concern addressed. Mr. Taraday continued, looking back over the 11 years, that lack of disincentive has worked for the most part to keep the City out of significant legal trouble. When cities majorly cut back on their legal services budget, risks increase because there is a disincentive to contact the lawyer. There may be times when that works out well, but there may be other times when not calling the lawyer meant a major problem happened. Ultimately, if the City were ever in that situation and had to make a drastic cut, he would want the policy makers to decide where those cuts happened, not the unelected city attorney. Councilmember Tibbott commented he was familiar with legal services related to engineering, participation at city council meetings, and public works contracts, but he was not familiar with projects the city attorney worked on for the mayor’s office. He asked what legal work Lighthouse has done on behalf of the mayor’s office. Mr. Taraday this was an example of the ethical dilemma he can sometimes be placed in because his communications with the mayor are confidential in the same way he would not share with the mayor a conversation he had with Councilmember Tibbott. Needless to say, over the years while Lighthouse has been the city attorney, with this mayor and other mayors, there have been a range of projects. He is available to the mayor by telephone in the same way he is available to councilmembers. The mayor will call him occasionally to discuss whatever is on his mind that day/week. It is not usually a major project from the mayor’s office, but usually a series of smaller things. Major projects typically come to them from the director level. Mayor Nelson said he was happy to share whatever he and Mr. Edmonds City Council Approved Minutes August 23, 2022 Page 8 Taraday talk about if Councilmember Tibbott shared what he talked with Mr. Taraday about. Councilmember Tibbott said that made sense to him. He was primarily interested if there were specific projects. Having worked with city attorneys and outside counsel when on the school board, Councilmember Paine appreciated that the city attorney was on speed dial for the council, mayor and directors. Due to the flat fee, she feared the council, mayor and directors may be overusing the city attorney’s services. She asked how Edmonds’ hours compared population wise with other cities Lighthouse represents, whether they were involved in more or less litigation with the flat fee, hourly or retainer. She summarized Edmonds could be overusing the generosity of the flat fee. Mr. Taraday answered it is difficult to make a direct city to city comparisons as it is somewhat of an apples to oranges comparison. For example, the City of Bothell, similar size city, has two in-house attorneys and a paralegal. He was confident Lighthouse was offering a higher level of service than what Bothell was getting from their in-house legal. He clarified that was not a comment regarding the ability of those lawyers, he knows them and they are good lawyers, but there was a different resource allocation so somethings fall by the wayside. It would be interesting to discuss with Bothell’s city attorneys how their office works, who their frequent flyers are, what services they provide to councilmembers, how often they take calls from councilmembers, whether they’re allowed to take calls from councilmembers, etc. In some cities, for budget reasons, the council is told not to call the city attorney, only the executive can call the attorney and councils ask questions during a council meeting. He explained he had used Bothell as an example, but without access to a lot of data, he could not answer that question. Councilmember Paine referred to the approximately 3400 hours Lighthouse worked for Edmonds last year, which is approximately equivalent to 2 full-time people and Mr. Taraday’s comment that a city Edmonds’ size would have 2 attorneys plus some support staff if it had in-house legal services. Mr. Taraday said support staff significantly increases the cost. For example, Bothell has two attorneys and a paralegal. He anticipated Edmonds’ budget for Lighthouse was less or close to Bothell’s. Even if the dollars were the same, Bothell is getting two brains versus seven brains; there are significant advantages to having the specialized attorneys that Lighthouse provides. Councilmember L. Johnson observed one of the compelling reasons why a flat fee is beneficial is an hourly fee presents a disincentive to using legal services. Another example was not having the city attorney at council meetings would make the City more vulnerable. She asked if there were statistics or studies of cities that use a flat fee versus an hourly fee and how the flat fee reduced their vulnerability. Mr. Taraday explained Edmonds is the only city in Washington with an all-inclusive flat fee from a law firm. There are in-house departments that try to do all of the work, but in-house departments contract with law firms to supplement the work provided in-house. For example, their client Maple Valley used to have in-house legal services and contracted with him to provide land use legal advice that they were not able to get from their in-house city attorney. It will depend on each city attorney’s comfort level and the resources of their office. When Tom Brubaker was the city attorney in Kent, they had a massive in-house legal department and did not need to retain outside legal counsel as often as a small city like Maple Valley who only has one city attorney. He suspected even a large in-house legal departments like Kent occasionally need to hire a law firm to supplement their in-house legal staff. Mr. Brubaker said when he left Kent, the population was about 120,000 and they had 10 attorneys and about 6 support staff and still hired outside counsel from time to time for litigation or areas they did not have the expertise like complex environmental law issues and they also had insurance counsel like Edmonds does. Edmonds City Council Approved Minutes August 23, 2022 Page 9 To Councilmember L. Johnson’s question whether there were studies that corroborate the theory that disincentive translates into higher adverse judgment, Mr. Taraday said he was not aware of any studies. WCIA, who categorizes cities into risk groups and uses a complex formula to determine each city’s premium, may have some thoughts on that. He recalled several years ago WCIA spoke to the city council at a retreat and WCIA could be asked to speak to that question. WCIA sees the claims and loss history from a lot of cities and may have some interesting information. 5. APPROVAL OF AGENDA COUNCILMEMBER PAINE MOVED, SECONDED BY COUNCIL PRESIDENT OLSON, TO APPROVE THE AGENDA IN CONTENT AND ORDER. MOTION CARRIED UNANIMOUSLY. 6. AUDIENCE COMMENTS Mayor Nelson described procedures for in-person audience comments. Joan Longstaff, Edmonds, commented the City is very fortunate to have this legal counsel who provides a lot of value for the dollar and their presentation was excellent. She thanked the city council for all they do. She referred to tragic events that occurred in the community yesterday that affected everyone very personally and thanked Teresa Wippel for keeping everyone informed. Last night’s fire at Trinity Place, a project made possible by the Rotary, YWCA and Rick Steves to provide housing for vulnerable people, was a tragedy. Fortunately, the fire department was only a half block away and no one lost their life. Finding housing for eight families is a big issue and some are vulnerable families from the Edmonds community. The other tragedy was the shooting in the Asian community that the Edmonds Police Department responded to. Edmonds residents are fortunate to live in a community with wonderful legal counsel and the wonderful police force. She thanked the council, and said she felt privileged to live in Edmonds. Ken Reidy, Edmonds, said City Attorney Jeff Taraday attended the December 2, 2014 city council meeting where then-Councilmember Bloom asked whether what council was being asked to do was in compliance with Ordinance 3303, Exhibit A, the purchasing policy for the city. The meeting minutes indicate Mr. Taraday was not certain what Ordinance 3303 was. Then-Councilmember Bloom asked whether the professional services agreement for the development code update was subject to bid. She was correct to be concerned because professional services costing over $50,000 had to be competitively bid under Ordinance 3303. The council did not vote to repeal Ordinance 3303 until 5 years later on December 17, 2019. Despite then-Councilmember Bloom’s reference to Ordinance 3303 in 2014, four councilmembers voted to authorize execution of the professional services agreement for the development code update. The development code remains incomplete; city staff have repeatedly refused to inform citizens what percentage of the code update is complete or disclose what the hundreds of thousands budgeted for the code rewrite have accomplished. Mr. Reidy continued, on December 10, 2019, seven days before council voted to repeal Ordinance 3303, Mr. Taraday directly interacted with him, a citizen, to state, in plain language Ordinance 3303 is not binding on the city council so the city council cannot violate Ordinance 3303. He requested this direct interaction with a citizen by Mr. Taraday plus his representation that Ordinance 3303 was not binding on the city council be investigated. Last week he provided councilmembers the true plan in place prior to council’s vote to approve Ordinance 3729 in 2009. He wondered how the 2009 council would have voted if the city attorney at that time had told council the true plan prior to council’s vote. He encouraged the council to form a citizen taskforce to review the historical conduct of city attorneys and recommend how the city should obtain and manage legal advice. He encouraged the council to ask this taskforce to research the impact of city attorney attendance at city council meetings on the attorney-client privilege and whether regular city attorney attendance at council meetings had a positive or negative impact on Edmonds City Council Approved Minutes August 23, 2022 Page 10 citizens. In his experience, city attorney attendance at council meetings can have a negative impact on citizens. He also requested the citizen taskforce play a role in the update of Chapter 2.05 ECC. Mayor Nelson described procedures for virtual audience comments. Linda Ferkingstad, Edmonds, told property owners that Edmonds has taken ownership of every tree on their property; attempting to build or divide property with trees could cost City fees of $2/square foot area. The fees equal 25% of their 2017 purchase, even while saving 60 significant trees, likely 50% more trees than most existing homeowners have. They must pay Edmonds the value of their trees for permission to make room for only three homes, no lawns or gardens allowed and the 60 trees they save will not belong to them. As a condition of any permit approval, every remaining tree and ground beneath their canopy must be recorded on property titles as permanently protected by the City. This seizure and illegal coercion permanently interferes with their property rights, violating the 4th Amendment of the constitution. They will receive no compensation for their loss and instead must pay $107,000 for permission to use their property for its legally zoned purpose. These excessive fees violate the 5th Amendment of the constitution. The City charges them for the worth of their property, takes their rights to the remaining trees and assumes no responsibility for damage when protected trees or branches fall. The 30% retention plan only includes trees in relatively flat areas, the only feasible areas to build. Their property is stable but sloped; trees retained in sloped areas count only if 50% retention is possible. Ms. Ferkingstad continued, their August 2nd tree plan approval has been revoked with a letter from the urban planner implying they have not considered options other than what they chose that incurs the least loss. The letter mentions her comments and she felt judged for bringing her valid, legal concerns to the council. For 18 months she has commented during nearly every council meeting, explaining consequences of every tree ordinance option. Fifty percent retention and conservation options cost at least $80,000 more in arborist, engineering and architectural fees and property value loss of $300,000 from loss of safety, natural light, and sound mountain views. Paying the City $107,000 while retaining 39% of trees whose canopy shadow nearly the entire property without structures isn’t enough; division won’t be approved unless they retain trees in the only flat areas available to build homes. Neither the City or homeowners pay into the tree fund for cutting trees, yet all future new homeowners must pay and retain no rights to all trees on their property. She asked if this council would honor their oath, the laws of the land and respect property rights and liberty of those trying to build homes. Must they pay hundreds of thousands for courts to restore their civil liberties guaranteed by the constitution while the council’s legal actions are defended with citizens’ taxes? She requested the council rescind the obstructive, inequitable, unconstitutional tree ordinance. Deborah Arthur, Edmonds, thanked Mr. Taraday and said he did a great job. She noted her husband, an attorney, often did not tell her things due to confidentiality. She recalled ethics was part of the bar exam and failing that part would be embarrassing which she was certain neither Mr. Taraday nor her husband had done. Edmonds needs to consider the possibility of more laws due to numerous complex issues and she recommended increasing the litigation budget. She hoped the City retained Lighthouse and suggested the council deserved a big raise for the hours they devote. Mr. Taraday has a great deal of knowledge about the City, is smart and well-spoken, likely a wonderful litigator, and is called upon often by the council. The city council needs an attorney at meetings due to the number of questions asked of him. Mr. Taraday is an asset to the City. 7. RECEIVED FOR FILING 1. CITY COUNCIL APPOINTMENT POSITION #1 APPLICATIONS 2. WRITTEN PUBLIC COMMENTS Edmonds City Council Approved Minutes August 23, 2022 Page 11 3. OUTSIDE BOARDS AND COMMITTEE REPORTS 8. APPROVAL OF CONSENT AGENDA ITEMS COUNCILMEMBER PAINE MOVED, SECONDED BY COUNCILMEMBER CHEN, TO APPROVE THE CONSENT AGENDA. Council President Olson requested Item 6, Historic Preservation Commission Member Revision, be removed from the Consent Agenda. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: 1. APPROVAL OF COUNCIL SPECIAL MEETING MINUTES OF AUGUST 16, 2022 2. APPROVAL OF COUNCIL MEETING MINUTES OF AUGUST 16, 2022 3. APPROVAL OF CLAIM CHECKS AND WIRE PAYMENT 4. APPROVAL OF PAYROLL AND BENEFIT CHECKS, DIRECT DEPOSIT AND WIRE PAYMENTS 5. APPROVE LOCAL AGENCY CONSULTANT AGREEMENT WITH WSP FOR CONSTRUCTION MANAGEMENT SERVICES ON THE 76TH AVE OVERLAY PROJECT 7. APPROVAL OF EASEMENT DOCUMENTS FOR HIGHWAY 99 GATEWAY PROJECT ITEMS REMOVED FROM CONSENT 1. HISTORIC PRESERVATION COMMISSION MEMBER REVISION (Previously Consent Agenda Item 6). Council President Olson advised staff is available for a presentation. There is no ordinance in the packet for approval on the Consent Agenda. City Attorney Jeff Taraday relayed his understanding that this was only an introduction tonight so he did not include an ordinance in the packet. After tonight’s presentation, it can be scheduled on the Consent Agenda at the next council meeting. Associate Planner Michele Szafran explained when the Historic Preservation Commission (HPC) was initially formed, there were 7 voting members, the number of members was increased to 9 in 2007, and in 2012, due to a lot of interest in the commission, the number of voting members was increased to 12. The HPC had 6 members up until a couple of months ago when 2 members joined and there are now 8 voting members. As the code requires 12 members, 6 voting members must be in attendance for a quorum which has resulted in canceled meetings. The intent is to reduce the number of members to 7 which is consistent with other boards and commissions to resolve the quorum issue. As someone who served on the HPC in the past, Councilmember L. Johnson recalled meetings when it was uncertain enough members would attend so there would be a quorum, meetings had to be canceled because there were not enough members present, and meetings where frantic emails were sent to members in order to have enough members attend to a discuss an important issue. She summarized this proposal makes sense. COUNCIL PRESIDENT OLSON MOVED, SECONDED BY COUNCILMEMBER L. JOHNSON, TO BRING THIS BACK WITH THE ORDINANCE ON A FUTURE CONSENT AGENDA. Edmonds City Council Approved Minutes August 23, 2022 Page 12 Mr. Taraday advised the ordinance could be ready for the next regular meeting. Council President Olson advised there are two special meetings before the next regular meeting and asked if there was any advantage to placing this item on one of those agendas. Mr. Taraday answered he was fine with any of those options. At times, the council has expressed a preference to allow public comment before something is adopted on the Consent Agenda and scheduling it on a special meeting agenda would be an exception to that rule. That was the only issue he could envision with doing it at a special meeting. Council President Olson asked the date of the next HPC meeting. Ms. Szafran answered it was September 8th. Council President Olson observed having it on the Consent Agenda at the next regular council meeting would adequate. Council President Olson added to the motion to have this item on the September 6th Consent Agenda. If this is on the September 6th Consent Agenda, Councilmember L. Johnson asked if the ordinance would take effect in time for the HPC’s September 8th meeting. Mr. Taraday answered it would not take effect immediately unless the council deemed it to be an emergency. He was unsure if there was anything urgent on the HPC meeting agenda for that meeting or what the ramifications would be if there was not a quorum. He was happy to have the ordinance on the agenda for the special meeting if the council wanted it done earlier, but it likely would not be effective for 30 days anyway and if that is the case, it may not matter as it would not be effective for the HPC’s next meeting regardless. MOTION CARRIED UNANIMOUSLY. 9. COUNCIL BUSINESS 1. COUNCIL APPOINTMENT PROCESS TO FILL POSITION #1 VACANCY Council President Olson advised the packet contains information about the proposed process. She will offer a series of motions regarding those proposals: COUNCIL PRESIDENT OLSON MOVED, SECONDED BY COUNCILMEMBER PAINE, TO INTERVIEW ALL 17 APPLICANTS IN AN OPEN VIRTUAL PUBLIC MEETING WITH 10 HELD FROM 9:55 A.M. TO 4:55 P.M. ON SATURDAY, AUGUST 27th AND 7 HELD FROM 7:55 TO 11:15 A.M. ON MONDAY, AUGUST 29TH. MOTION CARRIED UNANIMOUSLY. COUNCIL PRESIDENT OLSON MOVED, SECONDED BY COUNCILMEMBER L. JOHNSON, TO ACCEPT THE APPLICANT INTERVIEWS PROCESS THAT IS IN THE PACKET: INTERVIEWS are CONDUCTED WITHIN A SPECIAL MEETING, VIRTUALLY OVER ZOOM. INTERVIEW FORMAT: 25 MINUTES. APPLICANTS WILL HAVE 2.5 MINUTES FOR OPENING COMMENTS AND CONCLUDING COMMENTS. EACH COUNCILMEMBER WILL HAVE 3 MINUTES TO ASK THE SAME QUESTION TO EACH APPLICANT, FOLLOW UP QUESTIONS ARE ALLOWED IF POSSIBLE WITHIN THAT 3 MINUTE TIME LIMITS. INTERVIEW QUESTION: AS THE INTERVIEWS WILL BE OPEN AND VIEWABLE OVER ZOOM, IN FAIRNESS TO THE FIRST APPLICANT TO INTERVIEW, THE COUNCILMEMBERS' QUESTIONS WILL BE INCLUDED IN THE AGENDA MEMO FOR THE SPECIAL MEETING. MOTION CARRIED UNANIMOUSLY. COUNCIL PRESIDENT OLSON MOVED, SECONDED BY COUNCILMEMBER PAINE, THAT ALL COUNCILMEMBERS SUBMIT THEIR QUESTIONS TO THE COUNCIL EXECUTIVE ASSISTANT BY NOON ON THURSDAY, AUGUST 25TH SO THAT THEY CAN BE INCLUDED IN THE MEMO THAT GOES OUT ON FRIDAY MORNING. MOTION CARRIED UNANIMOUSLY. Edmonds City Council Approved Minutes August 23, 2022 Page 13 Councilmember L. Johnson referred to the information in the packet regarding the appointment process to fill vacancy via nominations, deadlock and examples, but it does not describe how someone is successfully appointed. She acknowledged that information was email to councilmembers, but suggested for the public’s benefit, someone state the process by which someone is successfully appointed. At Council President Olson’s request, City Clerk Scott Passey relayed the nomination procedure used in the past is included in the packet on page 326, assuming the council wanted to follow that same process. Each councilmember can nominate a candidate from the list of applications; he prepares nomination forms for that purpose. He also creates ballot forms for each councilmember and votes are taken round by round on the candidates until there are four affirmative votes for a candidate. When there are four affirmative votes for one candidate, the voting ends and a new councilmember is appointed. Council President Olson asked if the person selected would be sworn in immediately as has been done in the past. Mr. Passey advised the swearing in could be done on the same night. Councilmember Tibbott asked about a deadlock; if there is a deadlock on three consecutive ballots, do those three become ineligible for the next round of voting. Mr. Passey explained nominations are made again and often the nominations are made for the same people. No one is excluded in subsequent rounds as a result of the deadlock. Councilmember L. Johnson clarified the four affirmative votes come from councilmembers. Mr. Passey agreed. 2. ORDINANCE REVISING CHAPTER 2.05 ECC; CITY ATTORNEY CODE UPDATE City Attorney Jeff Taraday recalled when this code, Chapter 2.05 related to the city attorney, was discussed last week, there were several council comments regarding possible ways the code could be amended. No motions were made or votes taken last week so he drafted language that incorporated the various council comments. The council can review the draft and either adopt this version or make further amendments. He realized the draft in the packet did not reflect all the redlined changes. For example Section 2.05.015 and 2.05.025 are entirely new sections, and there is a comma missing in 2.05.020.C.2, it should read, Draft or approve as to form all ordinances, leases, conveyances, and such other…” As it was difficult from the ordinance in the packet to determine what was new language and what was existing language, he suggested the council could either discuss the revised ordinance tonight and make motions or if was too difficult without redline, it could be brought back to council. Alternatively he could read the redline changes from his version. Councilmember L. Johnson expressed her preference to bring it back so the council could track all the redlines. Additionally, Councilmember Buckshnis is not here tonight and the council has a very busy week coming up so it would be beneficial to bringing it back to council. Councilmember Paine said in looking at other cities’ codes such as Shoreline related to legal representation, some have an enormously long list of indemnification, exclusions etc. She did not understand why other cities would have that and Edmonds would not. She acknowledged none of those cities’ codes were developed before the turn of the century and this may just old language that other cities need to update. She agreed with Councilmember L. Johnson that this should come back to council with the redlines and to include Councilmember Buckshnis in the review. Mr. Taraday said he was not familiarize with Shoreline’s code, but ECC Chapter 2.06 is titled indemnification of employees and officers. Councilmember Paine agreed it may just be separated differently but was included in other cities’ codes under legal representation. Mr. Taraday expected Edmonds’ Chapter 2.06 served the function that Councilmember Paine saw in other codes. Edmonds City Council Approved Minutes August 23, 2022 Page 14 Council President Olson commented there may be a predominance of councilmembers who choose not to move forward, but Councilmember Buckshnis had an opportunity to avail herself of the online packet and register an objection to the council proceeding with this, and she did not hear from her. In response to a concern raised by a resident that there was a conflict of interest in having the city attorney bring this item to council for revision, the legal consultant at Municipal Research Service Center (MRSC) said there wasn’t. That was also Mr. Taraday’s opinion, but he agreed there was no downside to her making that inquiry to verify the council was on solid ground moving forward. Councilmember Chen referred to packet page 335, third line of Section 2.05.020, Duties, and suggested “He” be changed to “city attorney.” Mr. Taraday offered to doublecheck for any gendered language. 10. MAYOR'S COMMENTS Mayor Nelson reported he attended the Taste of Edmonds on Saturday; it was great to see so many people out, safely enjoying the wonderful weather and food. The event was very, very quiet on the drunk and disorderly front and he was happy to report the police were bored in that department. He thanked everyone for enjoying themselves responsibly. He wished all the luck to the 17 candidates who applied for appointment to the council vacancy. He knew what that was like and often told people it was probably easier to get elected than it was to get appointed. 11. COUNCIL COMMENTS Councilmember L. Johnson commented the council has a busy week coming up with 17 applicants for the open position on council. She thanked everyone who applied. There is a 5th Tuesday next week so council and the general public are enjoying the last days of summer before kids return to school. She highlighted a community discussion on gun safety tomorrow hosted by Moms Demand Action for Gun Sense in America and the Edmonds Police Department on Thursday, August 25th from 7 – 8 p.m. in council chambers. It will include a discussion regarding the Be Smart Program that Moms Demand Action uses. Further information regarding the program is available at Besmartforkids.org. Councilmember Paine thanked Joan Longstaff for bringing up the Trinity Place fire, noting vulnerable families in the community are always at risk for losing housing and a fire is devastating. She was glad the Red Cross was able to assist with immediate housing, but the families will need other goods and services. She reported on an accident where a car hit a power pole, bringing down the lines, on Saturday at 3 a.m. on Olympic View Drive. The repairs were accomplished by Sno PUD within about 1½ hours. She commented she loves the last days of summer and can hardly wait for fall. She congratulated the 17 people who applied for the council vacancy and she looked forward to meeting them. Councilmember Tibbott thanked all the applicants for the council vacancy, a great sign that people are involved and interested in the City. He reminded the memorial service for Kristiana Johnson will be on Monday, August 29th at 3 p.m. at City Park. Council President Olson offered the same announcement as Councilmember Tibbott, commenting it bears repeating. The city council will be celebrating the life and significant contributions of Councilmember Kristiana Johnson on Monday, August 29th at 3 pm. Councilmember K. Johnson was in the capacity of an acting councilmember when she passed suddenly on July 25, 2022. She hoped the public would join the city council for the tribute to this special public servant. Councilmember Chen offered his personal thanks to the 17 applicants for their willingness to serve the City which shows that residents/citizens are engaged. He referred to the action taken by the county council last week to pass an ordinance to purchase two hotels, one in Everett and one in Edmonds. He offered his personal thanks to Edmonds residents, especially residents and business owners along Edmonds City Council Approved Minutes August 23, 2022 Page 15 Highway 99 who embraced this idea and didn’t protest against it. This housing is desperately needed and as Ms. Longstaff stated, tragedies and misfortune can happen to anyone just like last night’s fire at Trinity Place. He reiterated his thanks to the Edmonds community for embracing this investment for those in need. 12. CONVENE IN EXECUTIVE SESSION TO DISCUSS PENDING OR POTENTIAL LITIGATION PER RCW 42.30.110(1)(I) At 8:48 p.m., Mayor Nelson announced the city council would meet in executive session for ten minutes to discuss pending or potential litigation per RCW 42.30.110(1)(i). Elected officials present at the executive session were Mayor Nelson and Councilmembers Tibbott, Paine, Olson, L. Johnson and Chen. City Attorney Jeff Taraday was also present. At 9:02 p.m., Mayor Nelson announced the executive session would be extended for 10 minutes. The executive session concluded at 9:12 p.m. 13. RECONVENE IN OPEN SESSION Mayor Nelson reconvened the meeting at 9:12 p.m. 14. ADJOURN With no further business, the council meeting was adjourned at 9:12 p.m.