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11/01/2011 City CouncilEDMONDS CITY COUNCIL APPROVED MINUTES November 1, 2011 The Edmonds City Council meeting was called to order at 7:02 p.m. by Mayor Cooper in the Council Chambers, 250 5`" Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Mike Cooper, Mayor Strom Peterson, Council President D. J. Wilson, Councilmember Michael Plunkett, Councilmember Lora Petso, Councilmember Adrienne Fraley- Monillas, Councilmember Diane Buckshnis, Councilmember Steve Bernheim, Councilmember (arrived 7:11 p.m.) ALSO PRESENT Alex Springer, Student Representative 1. APPROVAL OF AGENDA STAFF PRESENT Al Compaan, Police Chief Stephen Clifton, Community Services /Economic Development Director Phil Williams, Public Works Director Shawn Hunstock, Finance Director Rob Chave, Planning Manager Carl Nelson, CIO Frances Chapin, Cultural Services Manager Rich Lindsay, Parks Maintenance Manager Rob English, City Engineer Jeff Taraday, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder Council President Peterson requested Item 5, Annual Report from Public Defender, be removed from the agenda as the Public Defender was not present. He also requested the time for Item 10, Convene in Executive Session to Receive and Evaluate A Complaint Or Charges Brought Against A Public Officer Per RCW 42.30.110(I)(f), and Regarding Potential Litigation Per RCW 42.30.110(1)(i), be reduced from 60 minutes to 20 minutes. COUNCILMEMBER FRALEY - MONILLAS MOVED, SECONDED BY COUNCIL PRESIDENT PETERSON, TO APPROVE THE AGENDA IN CONTENT AND ORDER AS AMENDED. MOTION CARRIED UNANIMOUSLY. (Councilmember Bernheim was not present for the vote.) 2. APPROVAL OF CONSENT AGENDA ITEMS Councilmember Petso requested Item D be removed from the Consent Agenda. COUNCILMEMBER PETSO MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, TO APPROVE THE CONSENT AGENDA AS AMENDED. MOTION CARRIED UNANIMOUSLY. (Councilmember Bernheim was not present for the vote.) The agenda items approved are as follows: A. ROLL CALL B. APPROVAL OF CITY COUNCIL MEETING MINUTES OF OCTOBER 25, 201.1. C. APPROVAL OF CLAIM CHECKS #128543 THROUGH #128677 DATED OCTOBER 27, 2011 FOR $511,917.46. Edmonds City Council Approved Minutes November 1, 2011 Page 1 E. ACKNOWLEDGE RECEIPT OF A CLAIM FOR EQUITABLE ADJUSTMENT FROM PRECISION EARTHWORKS, INC. FOR $951.924.48. F. PROCLAMATION RECOGNIZING ARBOR DAY. ITEM D: COMMUNITY SERVICES / ECONOMIC DEVELOPMENT DEPARTMENT QUARTERLY REPORT - OCTOBER, 2011. At the request of Councilmember Petso, Community Services/Economic Development Director Stephen Clifton responded to the following questions raised by Natalie Shippen regarding the Unocal property cleanup: • Why are there different clean up levels for the eastern part of the Unocal site, 560,ug/L versus the western part, 706 yg /L? David South, Department of Ecology, who is responsible for oversight of the Unocal site cleanup, stated the composition of the petroleum product differs between the two areas and therefore a different toxicity which results in different cleanup standards. • Is the cleanup level determined by the proposed mixed use zoning of the site? Mr. South's response was the groundwater cleanup level is set to protect the surface water into which it flows, specifically Willow Creek, which runs along the north and west edge of the lower yard. Site zoning was not a factor in setting the groundwater cleanup level. Ms. Shippen spoke with Mr. South and his careful reply to her question whether the cleanup level is determined by the proposed mixed use of the Unocal site was the two are related and that sometime during the upcoming feasibility study, the Department of Ecology would want to know possible future uses of the property apart from Edmonds Crossing. He was familiar with the urban mixed use term but did not know the details. Mr. Clifton contacted Mr. South to clarify his response and he said they do not need to know the specific use of the site; the site will be cleaned up considering site uses allowed by current and potential future zoning. The lower yard is zoned NB2. Recognizing that Edmonds Crossing would be significantly delayed, Councilmember Petso asked whether it would be appropriate for the Council to consider alternate, intermediate uses of the property or did the City have to wait 20 -30 years while the ferry system has the property in a temporary freeze. Mr. Clifton responded it would be worthwhile to inquire of Washington. State Department of Transportation ( WSDOT) regarding the long range picture beyond 2030. The current 2030 Long Range Plan does not reference Edmonds Crossing but neither has WSDOT withdrawn the Edmonds Crossing project. COUNCILMEMBER PETSO MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, TO APPROVE ITEM D. MOTION CARRIED UNANIMOUSLY. (Councilmember Bernheim was not present for the vote.) 3. AUDIENCE COMMENTS Mayor Cooper reminded the public that RCW 42.17.130 which addresses the opportunity for public comment, states public comment shall not include comments which promote or oppose candidates for public office or ballot measures except during the course of a public hearing. He clarified that was not intended to hamper free speech but a reminder that comments shall not promote or oppose candidates. Dale Hoggins, Edmonds, Cemetery Board Member, and member of the Sno -Isle Genealogical Society, Alderwood Manor Heritage Association, invited the public to observe Veterans Day at the Edmonds Memorial Cemetery and Columbarium on Friday, November 11, 2011 at 11:00 a.m. for a walk along, a guided tour of veterans' gravesites or memorials. Betty Deebach Gaeng, Sno -Isle Genealogical Society, Alderwood Manor Heritage Association, is a superior geological researcher and the author of "Sketched in Stone," published by the Sno -Isle Genealogical Society, that contains biographical and military sketches of the men whose names are etched on the memorial monument in front of the Edmonds Edmonds City Council Approved Minutes November 1, 2011 Page 2 Museum. Over 400 veterans whose military service dates to the Civil War are buried or memorialized in the Edmonds Cemetery. Each year on Veterans Day and Memorial Day, each veteran's site is marked with an American flag. He reflected on those who have served the country in the past and are currently serving. He clarified this tour is different than the Memorial Day Walk Back in Time; this is a 1� /z hour tour of 15 -20 veteran's sites. He invited the public to share a story of a family /friend veteran. He provided his phone number for further information: 425- 776 -1543. (Councilmember Bernheim arrived at 7:11 p.m.) Al Rutledge, Edmonds, representing the Edmonds Kiwanis Club, invited the public to a fundraiser exhibition basketball game and show on Monday, November 7 at 7:00 p.m, at Shoreline Community College. Further information and tickets are available by contacting Scott Phariss at 206 - 931 -9027 or Dick Cassutt at 425 - 967 -5345. Next, Mr. Rutledge reported on the Friends of the Edmonds Library book sale. He commented residents annexed into the Sno -Isle Library in 1999 -2000 timeframe, saving the City $1.3 million /year at the time which has since increased to $2.3 million /year. Roger Hertrich, Edmonds, referred to his comments at last week's Council meeting regarding the $16,000 contributed from a source outside Edmonds for direct mailing related to a campaign. He reported the Public Disclosure Commission now reports a total of $26,720 from the National Association of Realtors in Chicago for direct mailing. He commented the direct mailings and the candidates' mailings both show the candidate in a blue shirt. He questioned why realtors were so interested in Edmonds, commenting over 20 companies associated with the realty business have each contributed $500 to this candidate. He anticipated their interest was due to potential financial benefits and that they did not care about local residents. 4. CITIES OF SNOHOMISH COUNTY LEGISLATIVE AGENDA - 201.1/2012. Councilmember Petso recused herself from this item out of an abundance of caution that special purpose districts may be lobbying the opposite side of one of these issues. Councilmember Petso left the dais and the room. Community Services/Economic Development Director Stephen Clifton explained the Cities of Snohomish County is seeking Edmonds' support for the proposed legislative agenda. Councilmembers were also provided a draft of the Edmonds' Legislative Agenda prepared by the City's government relations contractor, Mike Doubleday. John Caulfield, Mountlake Terrace, explained cities continue to work in partnership to promote a countywide legislative agenda that represents the interests of all cities in Snohomish County. This is similar to last year's approach and many of the items on the proposed legislative agenda are similar to last year's agenda. Everett and Mill Creek have joined in signing the agenda; Stanwood is also reviewing the agenda. There are currently 15 cities in Snohomish County who have signed or have an interest in signing the Legislative Agenda. Laura Sonmore, Mountlake Terrace Mayor Pro Tern and President, Snohomish County Cities, has had discussions with the Snohomish County Council and Executive about supporting the agenda. The ultimate goal is to work in partnership with the governor and state legislators to place the region in a position to pursue key policy issues important to these communities as a whole. The agenda represents a collective position and unified front on key items important to the region and they align with AWC's key priorities. The legislative agenda focuses on being part of the solution to help move the region forward by retaining jobs, continuing public investment and maintaining existing levels of municipal services that citizens expect and demand: He reviewed the Cities of Snohomish County's proposed strategic legislative priorities: Edmonds City Council Approved Minutes November 1, 2011 Page 3 Aerospace Industry o Support the Washington Aerospace Partnership and other stakeholder groups in developing a unified strategy (e.g., training & education, research & development, Office of Aerospace and Defense, unemployment insurance tax, worker's compensation, transportation infrastructure) to ensure that Washington State remains the leading location in the world for aerospace. Led by The Boeing Company, the aerospace industry within Snohomish County employs as many as 45,000 people, while one 1 of every 3 -6 Washington State jobs is supported either directly or indirectly by the aerospace industry. The current issue is the next generation of the 737; the goal is to keep it in Puget Sound and ultimately in Snohomish County. Economic Development o Support "tax- increment financing (TIF) ", which is a tool used by most other states to foster economic and community development to allow cities to proactively implement their Comprehensive Plans and to ensure local, regional and national competitiveness. Washington is one of two states in the country that do not have TIF which is a competitive disadvantage in the region and nationally. o Support additional financial resources for Local Revitalization Financing (LRF) program and Local Infrastructure Finance Tool (LIFT) to allow those cities who currently qualify to participate. Local Transportation and Capital Facilities o Support legislation such as a transportation revenue package that ensures local distribution and local funding options to provide cities sustainable and adequate funding for vital infrastructure investments that is capable of promoting economic growth and prosperity to the cities of Snohomish County. o Fully fund Public Works Trust Fund (PWTF) and Transportation Improvement Board (TIB) programs to provide cities funding for infrastructure and economic development purposes; no additional diversion or „sweeping C7 of capital accounts such as the Public Works Trust Fund. o Support investment in key transportation corridors such as U.S. 2, SR -9, and I -5, which are critical to the quality of life and the movement of people and goods throughout Snohomish County. Growth Management Act with a Focus on Regulatory Reform o Reform of annexation statutes and those dealing with the role of cities, counties and special purpose districts in urban areas to include: require joint planning in unincorporated urban growth areas; removing referendum from annexation process; limiting the authority of boundary review boards; and legislation that allows counties the ability to levy a utility tax, if it is restricted to unincorporated areas and there are accommodations for the needs of cities, in those areas, such as annexation financing assistance. Unfunded Mandates and Preemption of Local Authority o Strongly oppose any legislation that imposes an "unfunded mandate" without additional funding to support these programs, attempts to erode local revenue or tax authority such as local state - shared revenues that are critical to the financial health of cities, and pre -empts local authority over any policy or operational matter traditionally and historically vested with local government. Mr. Caulfield concluded cities face strong short and long term challenges. By working together, speaking with one voice, and focusing on strategic issues, cities in Snohomish County can promote items specific to these communities. The proposed agenda has the support of a wide range of City Councils in Snohomish County. He urged the Edmonds City Council to express their support for the proposed agenda. Councilmember Buckshnis referred to a presentation at Snohomish County Tomorrow by Snohomish County Executive Aaron Reardon inviting cities to donate $5,000 to help promote the aerospace industry. Mr. Caulfield answered that is the Washington Aerospace Partnership; Mr. Reardon is one of the co- Edmonds City Council Approved Minutes November 1, 2011 Page 4 chairs of that group. Mountlake Terrace and several other cities have each appropriated $5,000 to support that effort. The purpose is to develop a position paper on why the 737X needs to be constructed and built in the Puget Sound Region. He encouraged Edmonds City Council to appropriate funds for that effort. For Councilmember Buckshnis, Mr. Caulfield explained the aerospace industry in Washington State employs 34,000 people. In Snohomish County, 74,000 jobs are directly or indirectly supported by the aerospace industry. The average aerospace wage in Snohomish County is $83,000 /year, approximately $30,000 above the average median wage. Student Representative Springer inquired about the Cities of Snohomish County's position on the legislature's consideration of a cell phone tax law during the upcoming session. Mr. Caulfield answered Cities ardently opposes that. COUNCILMEMBER FRALEY- MONILLAS MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, TO SUPPORT THE PROPOSED CITIES OF SNOHOMISH COUNTY LEGISLATIVE AGENDA - 2011/2012. MOTION CARRIED UNANIMOUSLY. (Councilmember Petso was not present and did not participate in the vote.) Mayor Cooper reported he signed onto a letter to the governor, hopefully along with all 200+ mayors in the State, asking that she not take action on some of the budget cuts that will be proposed to the legislature during the upcoming session. If the legislature adopts the governor's budget cuts, it could cost the city of Edmonds upwards of $1 million/year in reduced revenue from the liquor revenues/liquor taxes and criminal justice money by July 2012. Mr. Clifton and he are preparing a letter to the legislative delegation and the governor with specifics on how the proposed cuts would affect Edmonds. Mr. Clifton advised the City's government relations contractor, Mike Doubleday, is also present tonight. The Cities of Snohomish County 2011 -2012 legislative agenda will be incorporated into Edmonds' draft 2012 legislative agenda. 5. ANNUAL REPORT FROM THE PUBLIC DEFENDER This item was removed from the agenda under Item 1. 6. PUBLIC HEARING ON REVENUE SOURCES AND 2012 PROPERTY TAX LEVY RATE (Councilmember Petso returned to the dais.) Finance Director Shawn Hunstock explained the ordinance levies a draft dollar amount. The final assessed value as determined by the Snohomish County Assessor's Office has not yet been provided. The ordinance levies the 1% increase over the prior year. Based on the available information, the 1% increase will generate approximately $95,000 in additional revenue. The ordinance levies the EMS portion of the property tax at $0.501$1000 of assessed values which will generate approximately $2.9 million in 2012. The ordinance also levies the voted bond levy for the 2003 bonds that generates $895,640 for debt service repayment on those bonds. The Council packet also contains information regarding General Fund revenue sources. Councilmember Buckshnis complimented Mr. Hunstock for the agenda packet that provides understandable information. Last year the Council received very limited information. Mayor Cooper opened the public participation portion of the public hearing. Edmonds City Council Approved Minutes November 1, 2011 Page 5 There were no members of the public present who wished to provide testimony and Mayor Cooper closed the public participation portion of the public hearing. City Clerk Sandy Chase advised the ordinance is not ready for adoption as the final numbers have not yet been provided by the County Assessor. COUNCILMEMBER BUCKSHNIS MOVED, SECONDED BY COUNCILMEMBER BERNHEIM, TO DIRECT THE CITY ATTORNEY TO PREPARE AN ORDINANCE FOR COUNCIL ADOPTION. MOTION CARRIED UNANIMOUSLY. 7. PUBLIC HEARING ON THE 2012 PROPOSED BUDGET. Finance Director Shawn Hunstock explained the charts he will provide are essentially the same as are contained in the preliminary budget with some formatting changes. He provided a chart of 2012 budget expenditures by fund and individual departments. He displayed a new chart developed using information in the preliminary budget illustrating differences between budgeted revenues and expenditures. He highlighted decreases in fund balances as previously reviewed by Jim Tarte, Financial Consultant. He referred to the Fund 412 Combined Utility Construction Fund, advising there still needs to be fine tuning to increase the appropriation for bond revenue; it had been assumed those bonds would be issued in 2011 and it was not included in the 2012 budget. It now appears that will occur in early 2012; the 2012 budget will be updated prior to its presentation for final consideration. Mr. Hunstock displayed page 2 of the preliminary 2012 budget, Total Budget Revenues, Expenditures and Fund Balance, highlighting the $4 million decrease between the beginning and ending fund balance, reiterating there will need to be an adjustment in the bond proceeds for the Combined Utility. Mr. Hunstock displayed page 3 of the preliminary 2012 budget, Total General Fund Budget Revenues, Expenditures and Fund Balance. He explained the current yearend estimate for the General Fund in 2011 is a $670,000 surplus and a $43,000 surplus in 2012. Mr. Hunstock displayed page 4 of the budget, 2012 General Fund Summary by department, reiterating the $43,000 General Fund surplus budgeted in 2012. He recognized there would be additional Council discussion related to revenues and expenditures prior to adoption of the 2012 budget. Mr. Hunstock displayed page 6 of the budget, General Fund Forecast, explaining declines continue to increase in revenues versus expenditures particularly in the out years. There is a budgeted $43,000 surplus at the end of 2012 but expenditures exceed revenues by increasing amounts in the years beyond 2012. Revenues increase at a fairly flat rate, 0.8 — 1.4%; expenses increase by a significantly larger amount. Based on the General Fund Forecast, the City will quickly reach a point where revenues are less than budgeted expenditures unless significant changes are made to either revenues or expenditures. Mr. Hunstock explained a balanced budget for the General Fund has been presented for 2012 by approximately $43,000. One of the reasons it is balanced is the significant number of larger expenditures not budgeted in the General Fund: • $300,000 • $256,000 • $ 19,000 • $ 25,000 • $188,000 • $788,000 Vehicle Replace Fund Street Fund LEOFF Medical Expense Fund Fire Pension Fund Building Maintenance Fund Total Edmonds City Council Approved Minutes November 1, 2011 Page 6 Mayor Cooper referred to the cuts the governor plans to propose to the legislature and asked Mr. Hunstock to describe the potential loss of liquor tax/liquor profits if the legislature makes those cuts. Mr. Hunstock advised the loss in liquor tax and liquor profit sharing would be approximately $540,000; the loss in criminal justice could be as much as an additional $450,000- $500,000. He advised those amounts are not included in the 2012 budget. Councilmember Buckshnis expressed her thanks for changes that were made to Exhibits 3, 4 and 6. She asked if the exhibits included bond refinancing and how much that would save the City. Mr. Hunstock answered that was not included. Refinancing of bonds and the potential savings will be presented to the Council in approximately two weeks. If that information can be developed soon enough, it will be incorporated into the 2012 budget. Councilmember Buckshnis explained reserves and surpluses have been removed from Exhibits 3, 4 and 6, using strictly General Fund revenue versus expenses. Mr. Hunstock anticipated there will be discussion by the Council early next year regarding the appropriate presentation of those numbers, whether it is fund balance, working capital, cash, or a combination. Councilmember Bernheim complimented the agenda packet, noting last year's packet in addition to the resolution, contained a one page, three paragraph memorandum. He summarized there was no information provided supporting the numbers in last year's packet regarding the public hearing on the 2011 budget. Mayor Cooper opened the public participation portion of the public hearing. Ron Wambolt, Edmonds, referred to comments by Mr. Tarte at last week's meeting regarding the departments' budgets being a best case scenario. It was Mr. Tarte's expectation that all departments would not experience a best case scenario and pointed out the addition of a contingency for under - budgeted items. He agreed with Mr. Tarte's suggestion that the Council could take action to require the miscellaneous contingency fund only be used for under - budgeted items. Mr. Wambolt referred to Councilmember Buckshnis' comment that budget amendments are used to address under- budgeted expenditures and Mr. Tarte's response that removing the miscellaneous contingency would increase the ending balance, giving the impression there are excess funds that can be spent. Mr. Wambolt relayed in his experience with budgets, there was always a contingency budgeted. He pointed out budget amendments only authorize expenditures; they do not come up with the money. Historically the funds needed for a budget amendment come from the General Fund balance. He concluded the miscellaneous contingency was a very sound proposal. Dave Page, Edmonds, asked why the percentage of benefits to salaries varied. He referred to the $788,000 amount, observing those were expenditures that were not budgeted and asked where the money for those expenditures came from. He complimented the preparation of the 2012 budget, pointing out the City is in a budget crisis and "running on short rations." The 2012 budget maintains the City for one year but it is not sustainable. Roger Hertrich, Edmonds, commented if funding for the list of unbudgeted items was included in the budget, the budget would not be balanced. To demonstrate the need for money, the City needs to have an emergency. If citizens see there is not enough money to operate the City, they are more likely to agree with a levy. He requested the City Council discuss and prioritize the list of unfunded items and use reserve funds to pay for all or part of those items to lessen the severity next year. Hearing no further comment, Mayor Cooper closed the public participation portion of the public hearing. In response to Mr. Page's question regarding benefits as a percentage of salaries, Mr. Tarte explained benefits vary by employee. He provided several examples: temporary /seasonal Parks & Recreation employees do not receive benefits which results in a lower percentage of benefits to salaries in Parks & Edmonds City Council Approved Minutes November 1, 2011 Page 7 Recreation; a lower paid employee who insures a family compared to a higher paid employee; and employees with a number of dependents versus employees with no dependents. In response to Mr. Page's question regarding funding for the items that are not budgeted, Mr. Tarte explained those items are paid for by their beginning fund balance; that is not a sustainable practice as there will only be enough money in the beginning balance for a limited period of time. In response to Mr. Page's question regarding the 2012 budget not being sustainable, Mr. Tarte referred to the additional $95,000 in revenue generated by the 1% increase in property taxes. He explained as a percentage of the $33 million in General Fund revenues, that increase is .003 %. That is the most important concept that the Council, Mayor, staff and citizens need to understand; revenues do not increase 1 %, in reality revenues increase .003 %. That is the unsustainable model referred to by Mr. Page. Councilmember Wilson commented the list of unbudgeted items is a very near term list. If the number of cuts made over the 3-4 years were included the list would be much more extensive and includes elimination of funding for the Development Services Director, two police officers, the DARE program, School Resource Officer, Crime Prevention, and Parks, etc. The General Fund today is smaller than it was four years ago when he was elected to the Council. The City is doing more with less but that is not sustainable. Mayor Cooper advised discussion regarding the 2012 budget is scheduled for the November 15 meeting and adoption of the 2012 budget is scheduled on November 22; that schedule can be revised if necessary. He suggested Councilmembers present budget amendments on November 15. He also suggested Councilmembers present budget amendment ideas to Mr. Hunstock to allow staff to answer any questions and consider the impact. Councilmember Bernheim expressed satisfaction with the procedure as well as the content of the 2012 budget. He inquired about the schedule for presenting amendments. Following a discussion regarding the procedure, it was agreed Councilmembers would present proposed amendments for inclusion in the November 15 packet by noon on Thursday, November 10. Mayor Cooper clarified that did not prevent Councilmembers from making additional amendments. Mayor Cooper advised he will work with Mr. Hunstock on an interactive spreadsheet to demonstrate the impact of proposed amendments on the budget. 8. PUBLIC HEARING ON THE RECOMMENDATION OF THE PLANNING BOARD CONCERNING A POTENTIAL AMENDMENT TO THE CITY OF EDMONDS COMPREHENSIVE PLAN MAP THAT WOULD ADJUST THE BOUNDARIES OF THE MEDICAL/HIGHWAY 99 ACTIVITY CENTER TO REMOVE EXISTING SINGLE FAMILY - DESIGNATED AREAS FROM THE ACTIVITY CENTER. THE BOARD RECOMMENDED AMENDMENTS TO THE POLICY LANGUAGE RATHER THAN CHANGING THE BOUNDARIES. Planning Manager Rob Chave explained the Council asked the Planning Board to review the boundaries of the Medical /Highway 99 Activity Center and whether the single family areas should be included in that activity center. During their review, the Planning Board considered the purpose of activity centers. The City's Comprehensive Plan has two activity centers, the Medical/Highway 99 Activity Center and the Waterfront Activity Center. Goals for activity centers include: A. Provide a pedestrian - oriented streetscape environment for residential and commercial activity. B. Encourage mixed -use development patterns that provide a variety of commercial and residential opportunities, including both multi - family and small -lot single family development. Edmonds City Council Approved Minutes November 1, 2011 Page 8 C. Build on historical character and natural relationships, such as historic buildings, slopes with views, and the waterfront. D. Encourage transit service and access. E. Strategically plan for development and redevelopment that achieves a balanced and coordinated approach to economic development, housing, and cultural goals. Mr. Chave pointed out B is a key concept; activity centers are intended to be a mix of uses, not just the commonly thought of mixed use which is a combination of multi- family and commercial, but also small lot single family. Activity centers are intended to encourage pedestrian activity and provide sufficient density and activity to support transit. In Edmonds single family is a very integrated part of downtown and even in the Medical /Highway 99 area. The language in the Comprehensive Plan makes the specific point that single family works as part of activity centers and can be part of a transit - friendly, transit - oriented development pattern. There is nothing in the Comprehensive Plan that states single family areas in an activity center should change to something else. Mr. Chave displayed a 2000 Comprehensive Plan map illustrating the Medical /Highway 99 and Downtown/Waterfront Activity Centers. He displayed a current land use map of the Medical/Highway 99 Activity Center, identifying single family areas within the boundaries of the activity center. He noted one single family area is located in the center of the Medical /Highway 99 Activity Center; others are located on the periphery. Approximately two years ago the single family area in the center was changed from a multi - family designation to single family with the recognition that single family made sense as part of the Medical /Highway 99 Activity Center. Mr. Chave displayed a current land use map of the Downtown/Waterfront Activity Center, pointing out large single family areas that are part of that activity center. Downtown Edmonds is very walkable, single family neighborhoods form part of the land use pattern that supports transit. He summarized that is why activity centers included single family. During its review, the Planning Board decided to make the language stronger, specifically for the Medical /Highway 99 Activity Center, rather than change the boundary. He reviewed the Planning Board's recommended change to the language in one of the goals for the Medical/Highway 99 Activity Center: To discourage the expansion of strip commercial development and encourage a cohesive and functional activity center that allows for both neighborhood conservation and targeted redevelopment that includes an appropriate mixes of single family and multiple dwelling units, offices, retail, and business uses, along with public facilities. Councilmember Petso inquired about the red slash marks in the land use maps. Mr. Chave answered that is a general mixed use designation; most of it is zoned multi - family. Councilmember Petso referred to the two cul -de -sacs south of the high school playfield, observing they are developed single family but are currently zoned multi- family. Mr. Chave agreed. Councilmember Plunkett referred to residents of the neighborhood on 215`" that approached the Council in the past. Mr. Chave explained the Council changed the designation of that neighborhood to single family a couple years ago. Councilmember Plunkett recalled the residents of that neighborhood clearly stated their preference for remaining residential. He asked if removing that neighborhood from the Medical /Highway 99 Activity Center would require review by the Planning Board and another public hearing. Mr. Chave answered it would. Councilmember Bernheim recalled the two lots at the end of 215'h/216"' retained their mixed use zoning. Mr. Chave responded they were changed to single family and later changed back to mixed use. Edmonds City Council Approved Minutes November 1, 2011 Page 9 Councilmember Buckshnis referred to the language that states, "includes an appropriate mix of single family and multiple dwelling units, offices, retail, and business uses, along with public facilities," and asked how an appropriate use was determined, fearing that would be very subjective. Mr. Chave answered a good example is 215`t; the Planning Board and ultimately the City Council considers applicable policies on a case -by -case basis, obtains public testimony, etc., and then makes a judgment call. That is not subjective but weighing different factors and ultimately deciding what the pattern is. Councilmember Buckshnis referred to the neighborhood on 215t1 that requested a change. Mr. Chave agreed that neighborhood made a very strong case regarding existing development, the history of development on the block, reasons for retaining that character, etc. which the Council considered in making their decision. They also made the case that they should not be outside the activity center but that they fit within it. Councilmember Plunkett referred to the language that states, "...activity center that allows for both neighborhood conservation and targeted redevelopment..." and asked what was meant by redevelopment. Mr. Chave answered redevelopment does not necessarily mean changing Comprehensive Plan designations or zoning. It means the existing uses have "seen their day" or there is some higher better use under the existing zoning or Comprehensive Plan designation that is more appropriate. People often think redevelopment means increasing density, changing the zoning, etc.; that is not usually the case. More frequently it is changing the use of a single family house in an area zoned multi - family. Councilmember Plunkett asked if an office building would be allowed next to a house on 215 "'. Mr. Chave explained only uses allowed by the existing zoning or Comprehensive Plan designation would be permitted. In the block on 2151t , the Comprehensive Plan designation and zoning is single family. In that block, only single family development is allowed. Redevelopment in that case may be expanding an existing house or demolishing and rebuilding a new single family house. Redevelopment in that area would not be multi - family or commercial use because it is not allowed by the zoning or Comprehensive Plan designation. Mayor Cooper opened the public participation portion of the public hearing. Laurie Piper, Edmonds, read a letter from Colleen McDonald, Edmonds, regarding the proposed changes to the Medical/Highway 99 Activity Center. She disagreed with the Planning Board's recommendation to retain the current boundaries. She realized zoning would afford the neighborhood some protection, but questioned the reason for including single family neighborhoods in the Medical /Highway 99 Activity Center in the first place unless the reason is to target these areas for development in the future. She understood the Planning Board's desire to promote mixed use development and was not opposed to it in concept but not at the expense of some of the last affordable single family neighborhoods in Edmonds. She was opposed to pushing inappropriate development into an existing single family neighborhood to serve the concept of mixed use. Redrawing the boundaries to exclude the large swath of single family neighborhoods currently included in the Medical/Highway 99 Activity Center makes more sense. She urged Council to adopt the change to the Comprehensive Plan that places more emphasis on single family and targeted development. She also urged Council to push for focused development where appropriate, not in the middle a single family residential neighborhood. She recommended Council remand the boundary issue back to the Planning Board for further input as there was no public input at their September 20 public hearing. Bruce Witenberg, Edmonds, a resident in the Aurora Marketplace neighborhood, commented their neighborhood is not in the Medical /Highway 99 Activity Center but has similar issues. The proposed changes to the policy in the Comprehensive Plan do not go far enough to protect single family residential zones in the Medical/Highway 99 Activity Center. Many of the single family neighborhoods in or bordering the Medical/Highway 99 Activity Center are long standing and deserve to be protected. He did Edmonds City Council Approved Minutes November 1, 2011 Page 10 not support development in the Medical /Highway 99 Activity Center or along Highway 99 that does not give a high priority to the protection of single family neighborhoods. He supported protection for those neighborhoods beyond a change in Comprehensive Plan policy. Existing single family neighborhoods should be protected by excluding them such as was done for the residences on 215`". Appropriate development in the Medical /Highway 99 Activity Center should be permitted but not without protections from adverse impacts of development on single family neighborhoods. Jim Underhill, Edmonds, a resident on 215`'', agreed with the previous comments and thanked the Council for the action they took two years ago to rezone the neighborhood. Since the Council approved the rezone, five residents have repainted their homes, six have done landscaping, and a few have remodeled the interior. Those people indicated they were comfortable making the improvements because their neighborhood was now protected. There is development opportunity on Highway 99. He supported changing the boundaries of the Medical/Highway 99 Activity Center. Roger Hertrich, Edmonds, agreed with Mr. Underhill, Edmonds needs to recognize the importance of neighborhoods. He recommended Mr. Chave's statement, single family really fits in, be included in the Comprehensive Plan. He supported retaining the single family zoning within the Medical/Highway 99 Activity Center. Al Rutledge, Edmonds, pointed out Swedish Hospital is the City's largest employer and is hiring an increasing number of out -of -state employees. He supported the single family zoning. Hearing no further comment, Mayor Cooper closed the public participation portion of the public hearing. Councilmember Fraley - Monillas inquired why the single family neighborhoods north of the high school were included in the Medical /Highway 99 Activity Center. Mr. Chave answered the general area contains a wide variety of uses; the common denominator is that it is transit - friendly because of the overall mix of uses and their close proximity. North of 212`'' the zoning is generally commercial or multi- family. Councilmember Fraley - Monillas inquired about the neighborhood south of Edmonds- Woodway High School and behind the high school on 80 "'. Mr. Chave answered those areas have been zoned multi- family for decades; the actual development is a mixture of multi - family and single family. Councilmember Fraley - Monillas asked why it was proposed to be changed to Medical /Highway 99 Activity Center. Mr. Chave emphasized Medical /Highway 99 Activity Center was not a zone; it is a loose way of organizing the area to say within that area the mixture is conducive to transit and walkability and it is the mix of uses including single family that makes it an activity center. The intent in 1995 -2000 was to communicate to PSRC that Edmonds fits within the scheme of centers; in Edmonds single family development forms part of that activity center which includes a variety of uses all supportive of walkability and transit. The intent was not to make transit - friendly equate to multi - family or higher density; the intent was that small lot single family is part of a transit- oriented development pattern. The Comprehensive Plan policies speak to retaining single family and that single family is part of mixed use, transit - friendly, walkable activity center. Councilmember Fraley - Monillas asked why one area in the south end of the Medical /Highway 99 Activity Center was zoned multi - family and another was zoned single family. Mr. Chave answered they are both in the Medical /Highway 99 Activity Center. He reiterated single family development fits within the Medical/Highway 99 Activity Center. It has been approximately 15 years since the Comprehensive Plan was adopted with the activity center concept; none of the area has been changed from single family and in fact the only significant change was changing the zoning on 215`" to single family. The neighborhood on 215`" is designated in the Comprehensive Plan and zoned single family. Edmonds City Council Approved Minutes November 1, 2011 Page 11 Councilmember Bernheim observed the concern appears to be that by being included in the Medical /Highway 99 Activity Center, single family areas are more likely to be developed. The Comprehensive Plan and Mr. Chave's comments indicate the Medical /Highway 99 Activity Center is not intended as a development zone but as a zone to encourage pedestrian and transit uses. Single family development plays as much of a role in the development of the area around the high school and hospital as does commercial or multi - family. Councilmember Bernheim referred to language in the Comprehensive Plan that an activity center is intended to be an intensively developed mixed use pedestrian friendly environment. Mr. Chave stated the goals regarding the Medical/Highway 99 Activity Center include language regarding pedestrian oriented but also encouraging a mix that provides a variety of commercial and residential including both multi- family and single family. Compared to other parts of Edmonds, the Medical/Highway 99 Activity Center and downtown are much more intensively developed than other areas. The intent is not uniformity of uses but a mix of uses. Mr. Chave clarified changing any of the single family areas within the Medical/Highway 99 Activity Center would require a Comprehensive Plan amendment to change the designation from single family to something else as well as a rezone. If a single family area is removed from the activity center, the same process is required. Removing an area from the Medical/Highway 99 Activity Center does not provide any more or any less protection for single family areas. He was concerned that removing single family areas from the Medical/Highway 99 Activity Center may lessen the concept that single family fits within an activity center. Councilmember Petso asked if there was time for review by the Community Services /Development Services Committee, the Planning Board and the Council and adoption this year. Mr. Chave answered that was unlikely as the Planning Board had only two meetings left this year. Councilmember Petso asked whether there was time to schedule it for next week's Planning Board meeting. Mr. Chave answered not as a hearing. Councilmember Petso suggested asking the Planning Board to consider a boundary adjustment for the Medical/Highway 99 Activity Center. She asked whether adjusting the boundary would require a remand to the Planning Board and a public hearing. Mr. Chave answered changing the boundaries on the periphery would be within the scope of the Planning Board's previous review. COUNCILMEMBER PETSO MOVED, SECONDED BY COUNCILMEMBER FRALEY- MONILLAS, TO REFER THIS MATTER TO THE COMMUNITY SERVICES/DEVELOPMENT SERVICES COMMITTEE TO LOOK AT THE PERIPHERY BOUNDARY AREAS. Councilmember Buckshnis observed if an area is zoned single family it is protected unless there is a change in the Comprehensive Plan designation and a rezone. Mr. Chave agreed; the single family areas are zoned and designated single family. The discussion is whether to have any of the single family zones outside the boundary of the Medical/Highway 99 Activity Center. Councilmember Petso observed there had been public testimony tonight in support of adjusting the boundary of the Medical /Highway 99 Activity Center. When this came to the Council last year, it was in the context of a policy change to SEPA thresholds that the Planning Board recommended for one area along the Medical/Highway 99 Activity Center. Including diverse areas in the Medical /Highway 99 Activity Center submits those residential neighborhoods to the same treatment that may be considered appropriate for Highway 99. There may need to be different standards for a single family neighborhood versus the Highway 99 corridor and to accomplish that, removing single family neighborhood from the Medical /Highway 99 Activity Center. The intent of her motion is to give the CS/DS Committee an opportunity to consider tightening up the boundaries of activity center so that it is closer to Highway 99. Edmonds City Council Approved Minutes November 1, 2011 Page 12 Councilmember Bernheim suggested the CS /DS Committee inform the Council of the potential advantages to including single family areas in the Medical/Highway 99 Activity Center. He was unclear regarding the purpose of the Medical/Highway 99 Activity Center boundary, whether it was to develop the area or balance development and maximize advantages. Council President Peterson advised he will not support the motion. The mix within the zones is a showcase of an activity zone that includes single family. His concern with carving out single family neighborhoods was there may be an expectation of greater protection. There is no greater or lesser protection by including single family areas in the Medical /Highway 99 Activity Center. Including single family neighborhoods in activity centers sends the message that single family neighborhoods are an important part of activity centers. Councilmember Wilson expressed interest in learning whether carving these single family residences out of the Medical/Highway 99 Activity Center inhibits or undermines efforts to develop that area, particularly the commercial areas and secondarily the multi -use areas. Ill [oil Y[11►[G1I 13 7101MUI SE&I 1111►[fIiA9 "1 DO 111 D1 ►Y89aYD1 ROUNK 1719100" 62 9. RESOLUTION DECLARING AN EMERGENCY AND WAIVING PUBLIC BIDDING REQUIREMENTS; APPROVE CONTRACT WITH STRIDER CONSTRUCTION FOR UTILITY CONNECTION AT MAIN STREET AND RAILROAD AVENUE. Public Works Director Phil Williams recalled when he last updated the Council, BNSF had just approached the City about completing the project the City had attempted to do in 2010. That project began in 2010 when BNSF asked the City to relocate utilities under BNSF tracks in the Dayton and Main Street areas. BNSF can ask a jurisdiction at any time to move /relocate utilities to accommodate /facilitate their project and the jurisdiction is obliged to do it and pay for it. The City developed a project and hired Interwest Construction to make the adjustment to utilities to facilitate BNSF's double track project through Edmonds. In attempting to make storm line and waterline crossings at Main Street and Railroad Avenue using trenchless technology, an extensive network of wooden timbers was identified under the tracks. Potholing in the area had not identified the material and BNSF was unaware it existed. That material kept the City from completing the project using a trenchless approach. The City asked BNSF for permission to complete the project via a cut and cover project which would have interrupted rail service for up to a full day; BNSF was not willing to allow that. The City discontinued work and is in the process of closing out the project this month. The City told BNSF that they will be responsible for completing that project but in reality the City will be obliged to complete the work in the future. A few weeks ago BNSF approached the City about a project to complete the crossing of the two utilities using a BNSF funding source that needed to be spent by yearend. BNSF was not willing to make the connection from the new crossings to the City's existing system because it would require work outside BNSF's right -of -way. Staff agreed now is the right time to make the connections. BNSF is constructing the utility crossings as well as a new, at -grade cement crossing on Main Street. He anticipated BNSF's project is upward of $1 million in new infrastructure. Mr. Williams stated it makes little sense to leave an existing 80 -year old cast iron 12 -inch pipe with 120 psi water pressure (the highest pressure in the system) underneath the new crossing until a future date and run the risk of that pipe failing in the meantime. Cast iron pipe becomes brittle over time and when it fails, it fails completely, not a small leak. Future failure of that pipe could cause extensive damage to the infrastructure BNSF is installing. That is the primary reason for declaring this an emergent situation. Edmonds City Council Approved Minutes November 1, 2011 Page 13 Mr. Williams requested the Council take action to declare an emergency, waive public bidding because there is not time for that process and meet BNSF's schedule. He recommended the Council not take the risk of leaving the 80 -year old cast iron pipe in place under the tracks until a later date. The emergent condition is a brittle pipe with high pressures under the existing crossing; BNSF's project will tear out the crossing, install a concrete crossing, and compact the soil causing a great deal of vibration. He anticipated the pipe could fail during or after the project. In this case it is less expensive for the City to hire BNSF's contractor to do this work for the City at the same time they are doing work for BNSF. By doing so, BNSF is paying for contractor mobilization, traffic control, etc. which would cost the City in excess of $50,000 when the pipe is replaced in the future. That cost can be verified by the City's own cost estimate as well as a check price done by a local contractor. He clarified finances were not the reason to replace the pipe now; it is to avoid a potential failure of the pipe in the next few months. Councilmember Petso asked whether RCW 39.30.020, applied to this situation. City Attorney Jeff Taraday read the statute: RCW 39.30.020 Contracts requiring competitive bidding or procurement of services — Violations by municipal officer — Penalties: In addition to any other remedies or penalties contained in any law, municipal charter, ordinance, resolution or other enactment, any municipal officer by or through whom or under whose supervision, in whole or in part, any contract is made in willful and intentional violation of any law, municipal charter, ordinance, resolution or other enactment requiring competitive bidding or procurement procedures for consulting, architectural, engineering, or other services, upon such contract shall be held liable to a civil penalty of not less than three hundred dollars and may be held liable, jointly and severally with any other such municipal officer, for all consequential damages to the municipal corporation. If, as a result of a criminal action, the violation is found to have been intentional, the municipal officer shall immediately forfeit his or her office. For purposes of this section, "municipal officer" means an "officer" or "municipal officer" as those terms are defined in RCW 23.020(2). Mr. Taraday explained the penalties referenced are imposed when any contract is made in willful and intentional violation of any law related to bidding. In this case another statute, RCW 39.04.280(1)(e) expressly authorizes municipalities to waive competitive bidding requirements in five situations; one of those situations is for Public Works in the event of an emergency. If the City Council as a body after hearing Mr. Williams' presentation believes this is a legitimate emergency and justifies waiving the competitive bidding requirements, the Council need not worry about RCW 39.30.020 because the Council would not be violating any state law by authorizing the waiver. The proposed resolution includes a whereas clause that the City Council finds there is an emergency. The City Council could not take this action without also adopting that finding. Councilmember Buckshnis asked what happened if someone alleged it was not an emergency. Mr. Taraday answered Supreme Courts are generally extremely lenient and deferential to legislative declarations of emergency. For example when the Mariners were playing in the King Dome, a state statute would have authorized the construction of Safeco Field. The legislature made that statute not subject to referendum by declaring the Mariners leaving Seattle was an emergency because. The Supreme Court ultimately ruled it would not tread on the legislative declaration of emergency. A declaration of emergency would need to be blatantly false on its face before the court would second guess a legislative declaration of emergency. In this case there are sufficient factual bases to support the finding of an emergency. There is an old pipe with a great deal of pressure in close proximity to an area where there will be significant construction work done. RCW 39.04.280(3) defines emergency as unforeseen circumstances beyond the control of the Edmonds City Council Approved Minutes November 1, 2011 Page 14 municipality that either: (a) present a real, immediate threat to the proper performance of essential functions; or (b) will likely result in material loss or damage to property, bodily injury, or loss of life if immediate action is not taken. He summarized it was likely the failure of the pipe during BNSF construction would result in material loss or damage. Mr. Williams commented it also qualified under (a) as the failure of the pipe would likely present a real, immediate threat to performance of essential functions such as water service to businesses and the ferry dock. COUNCILMEMBER BERNHEIM MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, TO ADOPTION RESOLUTION NO. 1260, AUTHORIZING THE MAYOR AND STAFF TO WAIVE COMPETITIVE BIDDING REQUIREMENTS IN ORDER TO ENTER INTO A CONTRACT WITH STRIDER CONSTRUCTION CO., INC. TO CONNECT PUBLIC UTILITIES AT MAIN STREET AND RAILROAD AVENUE DURING THE CONSTRUCTION OF BNSF'S MAIN STREET TRACK REPAIR. MOTION CARRIED (6 -1), COUNCILMEMBER PETSO VOTING NO. 10. CONVENE IN EXECUTIVE SESSION TO RECEIVE AND EVALUATE A COMPLAINT OR CHARGES BROUGHT AGAINST A PUBLIC OFFICER PER RCW 42.30.110(1)(f), AND REGARDING POTENTIAL LITIGATION PER RCW 42.30.110(1)(i). At 9:17 p.m., Mayor Cooper announced that the City Council would meet in executive session to receive and evaluate a complaint or charges brought against a public officer per RCW 42.30.110(1)(f) and regarding potential litigation per RCW 42.30.110(1)(i). He stated that the executive session was scheduled to last approximately 20 minutes and would be held in the Jury Meeting Room, located in the Public Safety Complex. He also announced that the City Council may take action as a result of meeting in executive session. This action will occur when the City Council reconvenes in open session. Elected officials present at the executive session were: Mayor Cooper, and Councilmembers Bernheim, Plunkett, Fraley- Monillas, Buckshnis, Peterson, Petso and Wilson. Others present were City Attorney Jeff Taraday and City Clerk Sandy Chase. At 9:40 p.m. Ms. Chase announced to the public present in the Council Chambers that an additional 30 minutes would be required in executive session. At 10:16 p.m. Ms. Chase announced an additional 10 minutes would be required in executive session. Councilmember Wilson exited the executive session at 10: 21 p.m. The executive session concluded at 10:30 p.m. 11. RECONVENE IN OPEN SESSION. POTENTIAL ACTION AS A RESULT OF EXECUTIVE SESSION DISCUSSION Mayor Cooper reconvened the regular City Council meeting at 10:31. p.m. COUNCILMEMBER BERNHEIM MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, THAT THE CITY COUNCIL WAIVE ANY POSSIBLE CONFLICT AND CONSENT IN AN INFORMED MANNER TO HAVE MR. TARADAY CONTINUE TO REPRESENT US IN THIS MATTER AND PROVIDE US WITH ADVICE REGARDING POTENTIAL LITIGATION IN EXECUTIVE SESSION. MOTION CARRIED (5 -1 -1), COUNCILMEMBER PETSO VOTING NO AND COUNCILMEMBER WILSON ABSTAINING. Convene in Executive Session Councilmember Wilson inquired whether this was the same matter that was just being discussed. Mayor Cooper responded it was regarding potential litigation. Councilmember Wilson asked whether it was the matter for which he had requested a public hearing. Mayor Cooper answered it was potential litigation related to that matter. Edmonds City Council Approved Minutes November 1, 2011 Page 15 At 10:35 p.m., Mayor Cooper announced that the City Council would meet in executive session regarding potential litigation per RCW 42.30.110(1)(i). He stated that the executive session was scheduled to last approximately 1.5 minutes and would be held in the Jury Meeting Room, located in the Public Safety Complex. He also announced that the City Council may take action as a result of meeting in executive session. This action will occur when the City Council reconvenes in open session. Elected officials present at the executive session were: Mayor Cooper, and Councilmembers Bernheim, Plunkett, Fraley - Monillas, Buckshnis, Peterson, and Petso. Others present were City Attorney Jeff Taraday and City Clerk Sandy Chase. The executive session concluded at 10:58 p.m. Reconvene in Open Session, Potential Action as a Result of Executive Session Mayor Cooper reconvened the regular City Council meeting at 11:00 p.m. COUNCILMEMBER BERNHEIM MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, TO EXTEND THE MEETING FOR ONE HOUR. MOTION CARRIED UNANIMOUSLY. Mayor Cooper suggested the Council use caution as they proceed. The Council ran out of time in the executive session; he would have supported the City Attorney's suggestion to use caution. He reminded the Council that RCW 42.30.110(1)(f) states an executive session can be held to receive and evaluate complaints and charges brought against a public official; however, upon the request of such officer or employee, a public hearing or meeting open to the public shall be conducted upon such complaint or charge. There has been lengthy discussion yesterday and today between the Council President, Council President Pro Tem, City Attorney and him about exactly what those words mean. He recognized the statues are very vague with regard to definitions. To reduce the City's risk of future action against the City, it makes good common sense for the City Council to take a conservative approach to the meaning of those words and schedule a public hearing at the earliest opportunity so that the complainant can be heard in that setting and reduce the City's risk of potential litigation. COUNCILMEMBER PETSO MOVED TO SCHEDULE A PUBLIC HEARING FOR NOVEMBER 15, 2011. MOTION DIED FOR LACK OF A SECOND. COUNCILMEMBER BERNHEIM MOVED, SECONDED BY COUNCILMEMBER BUCKSHNIS, TO ADOPT RESOLUTION NO. 1261, A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EDMONDS, WASHINGTON, CENSURING COUNCILMEMBER DJ WILSON FOR 1) ATTEMPTING TO MEDIATE A PERSONNEL DISPUTE BETWEEN THE CITY OF EDMONDS AND A CITY EMPLOYEE WITH WHOM HE HAD A PERSONAL, POLITICAL AND PROFESSIONAL RELATIONSHIP, 2) WITHOUT COUNCIL DELEGATION MEDIATING A CONTRACT OBLIGATING THE CITY OF EDMONDS TO PAY HIS PERSONAL, POLITICAL AND PROFESSIONAL COLLEAGUE KIMBERLY COLE $65,000 AND A YEAR OF HEALTH INSURANCE, AND 3) MISLEADING THE RESIDENTS OF EDMONDS BY CONCEALING HIS ROLE IN THE MATTER. Mayor Cooper allowed Councilmember Wilson to address the Council prior to other discussion on this matter. Councilmember Wilson respectfully requested he be allowed to retain his time for a later period. He observed Councilmember Bernheim just distributed the resolution; it was not on the agenda. He assumed it was the email he received Saturday but would like to have time to review it. He deferred to Councilmember Bernheim to describe the grounds for censure. He pointed out the creation of misstatements was against the law and requested Councilmember Bernheim stick to the facts. Councilmember Bernheim provided the following facts supporting his motion: • The citizens of Edmonds should trust in the truth and honesty of their City Councilmembers. Edmonds City Council Approved Minutes November 1, 2011 Page 16 • Councilmember Wilson has a personal, political and professional relationship with Kim Cole, an aide to the Mayor of the City of Edmonds. • Kimberly Cole has recently asserted that she has claims against the City of Edmonds related to her employment as an aide to the Mayor of the City of Edmonds. • A document entitled CR2A Agreement attached hereto as Exhibit A was signed by Edmonds Mayor Mike Cooper and Kimberly Cole on September 22, 2011. • Everett Herald reporter Bill Sheets wrote on October 6, 2011 that "City Councilman D.J. Wilson said he was asked by Cooper and Cole to mediate the settlement agreement to reduce the chances of the city being sued." • Everett Herald reporter Bill Sheets quoted Councilman Wilson on October 6 as saying "Getting the opportunity to help limit the city's liability was in everyone's best interest." • The agreement mediated by Councilman Wilson was not in the best interest of the City of Edmonds for the following reasons: 1) it obligated the City to pay his personal, political, and professional friend Kimberly Cole $65,000 and the full cost of health care benefits for a one -year period; 2) it provided that "all rights to a future legal remedy for claims against the city of Edmonds are reserved by Kimberly Cole," and thereby obtained for the City of Edmonds no benefit; and 3) it provided that the City would "not ...contest any application for unemployment benefits by Kimberly Cole." • The City Council has never delegated Councilman Wilson to mediate any settlement agreement resolving any employment disputes with any city employees. • On October 4, 2011 the Edmonds City Council considered a resolution to repudiate the settlement mediated by Councilman Wilson between the City of Edmonds and Kimberly Cole because it had not been properly authorized by the City Council. • At this same City Council meeting Councilman Wilson publically announced — prior to voting to repudiate the agreement he had mediated — only that he had a personal, political and professional relationship with Ms. Cole but that relationship did not in any way cloud his judgment. • Prior to voting on the motion Councilman Wilson failed to inform the City Council and the public that he had mediated an agreement between Mayor Cooper and Kimberly Cole. • Councilman Wilson failed to disclose his involvement in the matter and thereby deceived and misled the people of Edmonds while intentionally concealing his role. • Councilman Wilson has not yet voluntarily recused himself from Council deliberations and decisions surrounding the dispute between the City of Edmonds and his personal, political and professional colleague, Kimberly Cole. • On October 20, 2011, fifteen former City of Edmonds officials wrote that they were "concerned about the current dysfunction apparent in both the legislative and administrative activities in our city" and that "It is important that they understand and observe the separation of power between the mayor and the council while performing their respective obligations." • The actions of Councilman Wilson have exposed the City of Edmonds to greater financial risk than if he had not become involved. • The City Council finds that the actions and comments of Councilman DJ Wilson have brought disrepute to the City Council. • The purpose of a censure motion is to denounce misdeeds. Councilmember Petso explained the Council did not have an opportunity in executive session to get answers to all their questions and the City Attorney said he could not answer questions about a particular topic. After researching that topic after the meeting reconvened, she chose not to participate in this matter without a public hearing for Councilmember Wilson. Councilmember Wilson asked Councilmember Petso to explain why she was choosing not to participate. Councilmember Petso answered she was unsure whether she could explain because she did not know if Councilmember Wilson's letter was confidential. Councilmember Wilson responded it was not. Edmonds City Council Approved Minutes November 1, 2011 Page 17 Councilmember Petso explained the reason she is not participating is one of the code sections Councilmember Wilson has threatened the Council with indicates there is a state law that states it is a gross misdemeanor if she participates in denying Councilmember Wilson his legal rights. Councilmember Wilson has also stated he has a legal right to a public hearing. She saw no reason for her to take that risk. Councilmember Fraley- Monillas asked Councilmember Petso whether she had anything else to disclose, advising Councilmember Petso's daughter's husband works for Councilmember Wilson. Councilmember Petso agreed that he did. (Councilmember Petso left the dais and the room.) Councilmember Wilson explained he received the censure resolution on Saturday. He asked for it repeatedly and was denied. He was unaware who wrote the resolution. The public has not had an opportunity to review the resolution and will not have an opportunity to comment on it. He asserted this motion is perhaps the most irresponsible act he had ever seen this irresponsible Council take during his tenure in office. He emphasized the following points: 1. He has done nothing wrong. Many of the stated facts were incorrect. He acted entirely with the approval of the City Attorney. The motion of censure does not say he broke any laws, that he violated any written code of ethics. In the aftermath of the departure of the Human Resources Director, the Mayor requested that he moderate the process as a private citizen. The first thing he asked Sharon Cates, City Attorney, was are you okay with this? She responded yes. The censure resolution is more emotional than factual. It condemns him for disclosing his role and condemns him for not disclosing his role. Every one of the four points made in the resolve of the resolution is either factually inaccurate or factually irrelevant. He was not acting on behalf of the Council, he was not a party to the agreement, and he has done nothing wrong. 2. This is entirely politically motivated. The purpose of the censure motion tonight is to make headlines that will impact next week's election. A month ago he offered to answer any of the Council's questions; he was told no thank you and was asked to leave the room. This past week he offered to sit with Council President Peterson to tell him everything and answer all his questions in the presence of the City Attorney; his answer was I don't need to do that. The first thing Councilmember Wilson did when he learned about the possibility of censure was ask for a public hearing. He did not want anything kept from the public view because this is clearly an area where transparency would do everyone good. Council President Peterson declined, writing in an email, "I have been unable to find any rules or regulations requiring such a procedure." The very law the Council has used to hide this matter from the public until now states a governing body may hold an executive session to review and evaluate complaints or charges brought against a public officer or employee. However, upon the request of such officer or employee, a public hearing or meeting open to the public shall be conducted upon such complaint or charge. This Council held five public hearings to ban plastic bags but won't hold one public hearing on the matter that is the strongest possible resolution against a member of the Council. This distraction does nothing but hurt the citizens of Edmonds. The Council has important work to do on the budget to fully fund public safety, make sure water is clean, make sure parks are well maintained and to get people back to work, yet this is how the Council spends its time. The Council should be doing its job working for the people of Edmonds, not creating this type of distraction. This type of distraction could be expected from Washington D.C., not Edmonds; the citizens of Edmonds deserve better. Councilmember Wilson concluded he did nothing wrong and was acting at the request of the Mayor with the approval of the City Attorney. This is entirely politically motivated, meant to impact the election one week from today. The Council's action tonight only hurts the citizens of Edmonds. If the Council cared Edmonds City Council Approved Minutes November 1, 2011 Page 18 about facts, they would wait until the investigation regarding Ms. Cole is concluded. Facts are not the Council's purpose; the citizens deserve better. Councilmember Buckshnis expressed confusion with regard to the public hearing. If a covert meeting occurred at a Councilmember's office with 3 -4 parties involved and 1 person on the phone, what light would a public hearing bring to the situation when the public was not present at that meeting? Councilmember Wilson raised a point of order, commenting it was not Councilmember Buckshnis' job to determine which laws to follow. Mayor Cooper clarified there was no covert meeting; there was a negotiation that took place in the presence of the City Attorney. Councilmember Buckshnis clarified it was a meeting that did not take place at City Hall. Mr. Taraday clarified he was not present; his partner Ms. Cates was present. With regard to Councilmember Buckshnis' question regarding the merits of holding a public hearing on this matter, Mr. Taraday responded there are many reasons for holding a public hearing. The City holds public hearings regarding budget matters, land use matters, Comprehensive Plan, tax levy rates, etc. There are certain matters where the item under consideration is of such broad public application and importance that it makes sense to hold a broadly noticed public hearing to seek public input. In some cases a public hearing is required by state law. In this case state law does not require a particular notice. That is not to say the City Council could not afford Councilmember Wilson a more broadly noticed public hearing if they wished but there is no local, state or federal law that requires for example a certain amount of advance notice for a public hearing on the censure resolution. With regard to the purpose of a public hearing in this context, Mr. Taraday explained it is ultimately up to the City Council to decide that. The purpose of any public hearing is to inform the decision - makers before a decision is made. The motion before the Council is whether to adopt a censure resolution. It may be that the City Council wants to hear from citizens of Edmonds and if so a more broadly noticed public hearing should be held. There is no local, state or federal law that requires a specific process in this instance. The most important thing with regard to the censure resolution is that the subject of the censure, Councilmember Wilson, be given a full and fair opportunity to be heard. To the extent that Councilmember Wilson believes there are factual inaccuracies in the document, he should be given a full and fair opportunity to state what those are so that the City Council can then have an opportunity to consider them and determine whether to amend the censure resolution. Mr. Taraday stressed the importance of Councilmember Wilson having every opportunity to be heard. Councilmember Wilson was present at the time, he has personal knowledge of the events and to the extent there are factual inaccuracies it would behoove the City Council to try to determine what those are before a censure resolution is adopted. He did not know to what extent the citizens of Edmonds could inform the City Council's decision on this issue. They may be able to provide general opinions regarding whether the Council should be spending its time on censure resolutions and that may be of value to the City Council. The citizens of Edmonds were not present at the meeting and did not have personal knowledge of what transpired and from that standpoint they could not be as informative to the Council as they could for example on an area -wide rezone. Councilmember Buckshnis pointed out the resolve includes a recommendation rather than a requirement. She wanted the situation open to the public so they understand how it transpired. She asked whether the Council should give Councilmember Wilson an opportunity to identify errors in the censure resolution. Mr. Taraday referred to Councilmember Wilson's comment that he believes there are factual inaccuracies in the censure resolution. Mr. Taraday recommended the Council determine what Councilmember Wilson believes those are and determine whether they can be addressed before adopting the censure resolution. Edmonds City Council Approved Minutes November 1, 2011 Page 19 Council President Peterson commented he did not write the resolution and expressly avoided writing the resolution for a number of reasons. When the final resolution was sent to him on Thursday evening, he made sure it was also sent to the City Attorney. It was subsequently distributed to the Council by the City Attorney on Saturday. With regard to Councilmember Wilson's offer to provide him the details, Council President Peterson indicated he declined because he felt it inappropriate for only one Councilmember to hear the details. He assured this resolution was not something the Council did lightly; it was not an easy decision to make. He supported correcting any serious factual inaccuracies tonight and if that was not possible, consider postponing the resolution. Councilmember Wilson clarified he asked for his own counsel and was denied. He hired his own attorney who found the Council would violate seven laws by passing the censure motion; four are criminal violations that each Councilmember commits upon passage of the resolution; three are gross misdemeanors. If the Council passes the censure resolution, a gross misdemeanor is punishable by up to one year in jail and a $5,000 penalty. He declined to do the Council's homework by pointing out every factual inaccuracy. If the Council gave merit to the weight of this motion, they would find out the facts themselves before bringing the motion. The Council has not done that and when offered the facts, has denied them. Councilmember Fraley- Monillas found the resolution to be a very factual document and until Councilmember Wilson explained how it was not factual she could only find it factual. She asked Mr. Taraday to address the seven violations referred to by Councilmember Wilson. Mr. Taraday answered the letter from Councilmember Wilson's attorney, Johanson Law Group, addressed to Council President Peterson and copied to all Councilmembers was not provided to the City Attorney and he saw it for the first time when he arrived at tonight's meeting. He did receive an earlier letter from Mr. Johanson asserting that he had a conflict of interest which is why the Council took the previous action to address the alleged conflict of interest. He has not had enough time to review the laws cited in Mr. Johanson's letter to offer an opinion regarding the validity of the allegations. Councilmember Fraley- Monillas advised she also received the letter when she arrived at tonight's meeting. City Clerk Sandy Chase advised the letter was hand - delivered to City Hall this afternoon. Council President Peterson advised a copy was hand - delivered to his place of work. Councilmember Buckshnis asked if Mr. Taraday received a request for an attorney from Councilmember Wilson. Mr. Taraday recalled Councilmember Wilson raising that issue at some point and referring to the City Code section related to indemnification for public officers. His reading of that ordinance is to address a situation where the City is sued and an official or employee participating in whatever activity is the subject of the lawsuit is also named personally in the lawsuit. In that situation, assuming the person is acting in their official capacity and is performing the duties of their office in good faith, by ordinance the City has an obligation to indemnify and defend them. In this case the activity the Council is contemplating does not trigger the indemnification ordinance. Councilmember Buckshnis summarized Councilmember Wilson did not submit a formal request, he only spoke about it. Mr. Taraday did not recall a written request but he would treat an oral request the same as a written request. Councilmember Buckshnis commented some of the issues raised in executive session with regard to how Councilmember Wilson has responded when asked for details could not be discussed because they were executive session material. Mr. Taraday explained a great deal of what has been discussed in executive session is attorney - client privileged communication that is related to potential litigation. He recommended the City Council not waive the attorney - client privilege because of the potential for litigation related to various issues that have been discussed. There may be a subset of facts that are not attorney- client privileged but executive session privileged facts and those facts could be waived by a Council majority. He had not prepared a list of things the Council could and could not talk about tonight. Edmonds City Council Approved Minutes November 1, 2011 Page 20 Councilmember Buckshnis asked if Councilmember Wilson's refusal to correct the document waived his responsibility. Mr. Taraday stated Councilmember Wilson cannot unilaterally waive the City's attorney - client privilege. He can speak to his own personal knowledge of the facts to the extent they are not attorney- client privileged facts. If there are factual inaccuracies that are not attorney - client privileged, Councilmember Wilson can correct them without violating executive session privilege or attorney -client privilege. Councilmember Buckshnis summarized the Council cannot dispute what Councilmember Wilson says because the Council is bound by executive session privilege. Mr. Taraday agreed Councilmember Wilson had slightly more leeway than other Councilmembers because he is entitled to speak about his personal knowledge whereas the Council cannot reveal executive session material without express Council action. If there are specific things in that category, the Council could discuss a limited executive session waiver at a later date to address them. Councilmember Fraley - Monillas suggested amending the motion to give Councilmember Wilson a week to identify inaccuracies in the resolution but leave the resolution in the public domain until then. Mr. Taraday responded because the Council is discussing the proposed resolution at an open public meeting, it is a public document. To the extent Councilmember Wilson would like the opportunity to correct erroneous information, the Council could afford him that opportunity. Mayor Cooper suggested a motion to continue to a date certain to allow Councilmember Wilson an opportunity to address the factual inaccuracies. Councilmember Wilson explained the reason this conversation is occurring is because the Council has rushed into the censure resolution for political purposes. The Council does not have its facts straight. If the Council waited to collect the facts, this conversation would not be happening. When he asked for a public hearing under the law the Council cites, that request brought all elements of this complaint into the public. The Council cannot hide behind executive session privilege; if there is something Councilmember Buckshnis thinks is important, he urged her to say it because he has waived his right to have this conversation in executive session. He asked last week and again today for a public hearing. If Councilmembers are unclear about the laws they will be breaking, he suggested they take the time to research them. He refused to do the Council's homework by identifying every factual inaccuracy in the document. COUNCIL PRESIDENT PETERSON MOVED TO CONTINUE THE MATTER TO A DATE CERTAIN. MOTION DIED FOR LACK OF A SECOND. Councilmember Fraley - Monillas recognized Councilmember Wilson believed a public hearing was appropriate. The Council has never conducted a public hearing with regard to an issue within the Council. She preferred Councilmember Wilson take a different stance rather than being combative about the censure resolution, commenting he was not using good sense. Councilmember Wilson referred to RCW 42.30.11.0(1)(f), the RCW the Council has used to discuss this matter behind closed doors states upon request of such officer, a public hearing or meeting open to the public shall be conducted upon such complaint or charge. He gets to request whether a public hearing or open meeting is held; he has twice requested and been denied a public hearing. If the Council feels the facts are accurate, this conversation would not be occurring and a vote would have been taken. If the Council feels they are not violating any of the four laws, they will have an opportunity to raise that issue in a different venue. Mr. Taraday explained in the statute Councilmember Wilson references, there is no doubt that once he makes that request, which he has, the Council can no longer discuss the merits of the resolution in Edmonds City Council Approved Minutes November 1, 2011 Page 21 executive session and the Council has not. It is not clear in the statute whether it is the requestor who decides whether it is a public hearing or public meeting. Second and more importantly, in many respects this can be considered a public hearing. Not all public hearings require public testimony. A public hearing can be held where the person involved has an opportunity to be heard; clearly the Council is affording Councilmember Wilson an opportunity to be heard tonight. The only question is whether the Council wants to afford the public an opportunity to speak on this issue. Councilmember Wilson's objection is whether the hearing he is being given tonight without public notice satisfies the public hearing that he is requesting. There is no law that states a certain amount of notice is required. Councilmember Fraley - Monillas summarized this is Councilmember Wilson's opportunity to be heard. Mr. Taraday clarified it is up to the City Council to decide what opportunity to provide Councilmember Wilson to respond to the censure resolution. There is a broad spectrum of choices, from allowing Councilmember Wilson to respond tonight, to scheduling five public hearings and everything in between. There is no statute, ordinance or case law specifying exactly the type of notice and type of hearing one is entitled to in this situation; therefore the Council has a great deal of discretion to determine what type of public hearing to provide, whether to take public testimony or only hear from Councilmember Wilson. Because Councilmember Wilson is making threats related to not having a public hearing, Mr. Taraday suggested in the interest of acting conservatively and minimizing legal risk as much as possible, providing some type of notice and a future hearing date would at least remove that threat to the extent there could be any liability associated with it. Council President Peterson reiterated the Council had not gone into this lightly. This is a very serious issue and if there were questions that could be answered via continuance, it would be wise for the Council to consider. He did not think there were factual errors in the resolution but was willing to give the benefit of the doubt. He agreed with many of the points made in the resolution but did not want to risk denigrating the importance of the resolution by including incorrect details. He suggested the Council continue the discussion to ensure everything is in order. Councilmember Bernheim commented he had heard nothing to indicate the resolution is factually inaccurate. He requested the nullified CR2A agreement referred to in the resolution be attached to the resolution. Councilmember Fraley- Monillas agreed with Councilmember Bernheim, she had not heard any specifics regarding errors in the resolution. THE VOTE ON THE MOTION CARRIED (5 -1), COUNCILMEMBER WILSON VOTING NO. (Councilmember Petso was not present and did not participate in the vote.) 12. MAYOR'S COMMENTS (Councilmember Petso returned to the dais at 11:55 p.m.) Mayor Cooper was troubled the Council did not take a more conservative approach to the censure resolution. He was also troubled that someone who may have voted on the resolution took an action last week by releasing confidential executive session material to the newspaper. He was in a state of shock and disbelief after reading the Edmonds Beacon on October 26, discovering that a Councilmember or Members had openly violated RCW 42.23.070 which states no municipal officer may disclose confidential information gained by reason of the officer's position nor may the officer otherwise use such information for his or her personal gain or benefit. RCW 42.23.050 states the municipal officer who violates the statute is subject to a $500 penalty and possible forfeiture of office. Edmonds City Council Approved Minutes November 1, 2011 Page 22 Mayor Cooper pointed out the entire Council was aware that much of this information was confidential in nature and should not be released during ongoing legal discussions, yet someone took it upon themselves to break the law and put the entire Council and City in a compromised legal position. He found this an outrageous act that damages the foundation of our ability to function as a democratic form of government. State laws are clear on this matter and he was outraged to think a member or members of the City Council placed themselves above the law while claiming they believe in open government. The City Council is not a subcommittee of a social club; laws are written to allow government to function with executive session provisions being an open part of the open public meetings law. This behavior is destructive to the City, destroys public confidence in the City Council and must stop. The person or persons responsible for this act owe every member of the community an apology. (Councilmember Wilson left the meeting at 11:56 p.m.) Mayor Cooper hoped the person or persons responsible would step forward and take responsibility for their actions. In the meantime he will ask the City Attorney and Prosecuting Attorney to review this matter for potential further action. 13. COUNCIL COMMENTS Councilmember Buckshnis commented she also read the Edmonds Beacon article and felt the information could have been leaked from the opposing side such as by Ms. Cole or her attorney. She was shocked to read the information but was unsure whether a Councilmember had revealed the information. Mayor Cooper responded the quotes in Mr. Ratliff's article in the Edmonds Beacon were direct quotes from a timeline memo that the Council President distributed to the City Council and no one else three weeks ago. Council President Peterson reiterated the quotes in Mr. Ratliff's article were direct quotes from an executive session document that was not to be released to the public. He asked the Councilmember who released the information to come forward, commenting breaking trust makes it difficult to have executive sessions. He reiterated the censure resolution was not an easy decision by him or any member of the Council. 14. ADJOURN With no further business, the Council meeting was adjourned at 11:59 p.m. Edmonds City Council Approved Minutes November 1, 2011 Page 23