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02/16/2010 City CouncilFebruary 16, 2010 At 6:45 p.m., Mayor Haakenson announced that the City Council would meet in executive session regarding negotiations for the potential purchase of real estate. He stated that the executive session was scheduled to last approximately 15 minutes and would be held in the Jury Meeting Room, located in the Public Safety Complex. No action was anticipated to occur as a result of meeting in executive session. Elected officials present at the executive session were: Mayor Haakenson, Councilmembers Orvis, Plunkett, Fraley - Monillas, Bernheim, Buckshnis, Peterson and Wilson. Others present were City Attorney Scott Snyder, Community Services /Economic Development Director Stephen Clifton and City Clerk Sandy Chase. The executive session concluded at 7:00 p.m. The regular City Council meeting was called to order at 7:03 p.m. by Mayor Haakenson in the Council Chambers, 250 5th Avenue North, Edmonds. The meeting was opened with the flag salute. ELECTED OFFICIALS PRESENT Gary Haakenson, Mayor Steve Bernheim, Council President D. J. Wilson, Councilmember Michael Plunkett, Councilmember Dave Orvis, Councilmember Adrienne Fraley- Monillas, Councilmember Strom Peterson, Councilmember Diane Buckshnis, Councilmember ALSO PRESENT Graham Marmion, Student Representative 1. APPROVAL OF AGENDA STAFF PRESENT Jim Lawless, Assistant Police Chief Stephen Clifton, Community Services /Economic Development Director Noel Miller, Public Works Director Rob Chave, Planning Manager Stephen Koho, Treatment Plant Manager Gina Coccia, Planner Rob English, City Engineer Scott Snyder, City Attorney Sandy Chase, City Clerk Jana Spellman, Senior Executive Council Asst. Jeannie Dines, Recorder COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCIL PRESIDENT BERNHEIM, TO APPROVE THE AGENDA IN CONTENT AND ORDER. MOTION CARRIED UNANIMOUSLY. 2. CONSENT AGENDA ITEMS COUNCILMEMBER PETERSON MOVED, SECONDED BY COUNCIL PRESIDENT BERNHEIM, TO APPROVE THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: A. ROLL CALL B. APPROVAL OF CITY COUNCIL MEETING MINUTES OF FEBRUARY 2, 2010 C. APPROVAL OF CLAIM CHECKS #1.16866 THROUGH #1.1.7013 DATED FEBRUARY 4, 2010 FOR $543,160.45, AND #117014 THROUGH #117179 DATED FEBRUARY 11, 2010 FOR $444,455.31. APPROVAL OF PAYROLL DIRECT DEPOSIT AND CHECKS #49059 THROUGH #49096 FOR THE PERIOD OF JANUARY 16 THROUGH JANUARY 31, 2010 FOR $636,174.68. Edmonds City Council Approved Minutes February 16, 2010 Page 1 D. ACKNOWLEDGE RECEIPT OF CLAIMS FOR DAMAGES FROM ALICE OATES ($177.30), NANSI KARLSTEN (AMOUNT UNDETERMINED), AND SARA TWIGG (AMOUNT UNDETERMINED). E. ACCEPTANCE OF LIST OF BUSINESSES APPLYING FOR RENEWAL OF THEIR LIQUOR LICENSES WITH THE WASHINGTON STATE LIQUOR CONTROL BOARD, JANUARY 2010. F. CITIZEN REQUEST TO AMEND THE SEPTEMBER 3, 2002 CITY COUNCIL MINUTES. G. REPORT ON FINAL CONSTRUCTION COSTS FOR THE SECONDARY CLARIFIER REHABILITATION PROJECT AND COUNCIL ACCEPTANCE OF PROJECT. H. REPORT ON FINAL CONSTRUCTION COSTS FOR THE CLAY FEEDER PROJECT AND COUNCIL ACCEPTANCE OF PROJECT. L ACCEPTANCE OF PROJECT FOR FRONTAGE IMPROVEMENTS AT NE CORNER OF DAYTON STREET AND THIRD AVENUE SOUTH. J. INTERLOCAL AGREEMENT WITH STATE OF WASHINGTON DEPARTMENT OF PRINTING. K. FIRDALE VILLAGE: REZONE, DEVELOPMENT AGREEMENT, AND NGPE. Council President Bembeim explained this appointment was to fill the professional architect position on the Architectural Design Board. COUNCIL PRESIDENT BERNHEIM MOVED, SECONDED BY COUNCILMEMBER WILSON, TO CONFIRM THE MAYOR'S APPOINTMENT OF LOIS BROADWAY TO THE ARCHITECTURAL DESIGN BOARD. MOTION CARRIED UNANIMOUSLY. 4. AUDIENCE COMMENTS Ray Martin, Edmonds, commented the social gathering of four Councilmembers and their supporters at Engel's Pub was completely legal and innocent and assertions to the contrary were off track. City business was not discussed and the event was strictly celebratory. He objected to Mayor Haakenson lecturing the Council regarding the Appearance of Fairness, recalling an allegation when Mayor Haakenson was a Councilmember about four Councilmembers participating in a rolling quorum. He urged Mayor Haakenson to improve his relationship with the Council. He commented on Mayor Haakenson's involvement in the Reidy matter, and suggested further information was available on Finis Tupper's blog. Al Rutledge, Edmonds, announced the Senate hearing regarding the ethics code scheduled for Thursday, February 18 has been rescheduled for March 10; he planned to attend that meeting and testify regarding recommended changes. Further information was available via the Joint Senate Committee at 1- 800 -562- 6000. With regard to the presentation regarding Yost Pool at the Council retreat, he pointed out a similar proposal was made to the Council in March 1999. He spoke in favor of a parks levy and suggested rather than the proposed annual cost to taxpayers of $7.50/$1000 AV, other items be added for a park levy of $15- 16/$1000 AV. Edmonds City Council Approved Minutes February 16, 2010 Page 2 Roger Hertrich, Edmonds, referred to the minutes of the Community Services /Development Services Committee regarding PRDs, noting staff suggested the issue of PRD setbacks may be moot if PRDs are dropped from the code. He expressed concern that PRDs would be eliminated from the code when there had not been any discussion by the Council. Next, he referred to discussion at the Finance Committee meeting regarding a request from Public Works for $300,000 from the funds the City received via the sale of equipment to Fire District 1. He recalled the Council had previously discussed placing those funds in a special account, noting the amount was less than originally projected. Councilmember Peterson requested the following addition to the agenda: COUNCILMEMBER PETERSON MOVED, SECONDED BY COUNCILMEMBER FRALEY- MONILLAS, TO ADD AS AGENDA ITEM 6A, CONSIDERATION OF A RESOLUTION IN SUPPORT OF HB 3181 AND SB 6851, REGARDING THE CLEAN WATER ACT OF 2010 AND FUNDING CLEANUP FOR WATER POLLUTION. MOTION CARRIED UNANIMOUSLY. 5. CITY OF EDMONDS WEBSITE - CITY COUNCIL AND COUNCIL MEMBER WEB PAGES. Community Services/Economic Development Director Stephen Clifton referred to the November 2, 2009 staff report related to information that could be posted on City Council and City Councilmember web pages. Three potential scenarios were discussed at the November 9 meeting, 1) limiting information to names, dates, places and basic factual biographical information, 2) items in option 1 plus e- newsletters, and 3) a limited forum approach. At that meeting, the Council requested staff return with policies for an option 2+ that allowed for as wide a distribution of information as possible without any campaign or personal material or links. He proposed the following content be allowed on City Council web page (items in italics are in addition to content recommended during the November 2 presentation): • Information sponsored or co- sponsored by the City Council or directly linked to city policy objectives. • Information that accurately reflects City Council policy positions. • Broad based items of significance, e.g., Council Hot Topics and /or News • Links to factual information prepared by the city or other public organizations. Examples include: Snohomish County or Washington State Voters' Pamphlets, Municipal League, and League of Women Voters as public information. • Links to newspaper or magazine articles about Edmonds (see exceptions regarding political advocacy). • Governmental and public educational institutions located within the State of Washington. • Links to local organizations having a recognized relationship with the City of Edmonds or with which the City of Edmonds partners in order to provide services, including but not limited to the Edmonds Chamber of Commerce, Port of Edmonds, and Stevens Hospital. • Links to local cultural, artistic, civic or non -profit recreational organizations having either a recognized relationship with the City of Edmonds or specific and direct relevance to City residents. Mr. Clifton noted the last three bullets had been the policy since the Council's 2002 retreat. He proposed the following not be allowed on the City Council web page: • Political advocacy. • Links to sites that are associated with, sponsored by, or serve a candidate for elected office, any political party or organization supporting or seeking to defeat any candidate for elective office (to avoid the appearance of endorsing political content). • Links to sites advocating positions on ballot propositions RCW 41 .06.250; RCW 42.130; RCW 41.17.190 • Links to personal homepages Edmonds City Council Approved Minutes February 16, 2010 Page 3 He proposed the following content be allowed on City Councilmember web pages (items in italics are in addition to content recommended during the November 2 presentation): • City Council name and position number. • Contact information. • Year elected to the City Council and number of terms served. • Current Council committees and appointments. • Former Council committees and assignments. • Regional representation. • Links to E- Newsletters (see content not allowed). • Links to news related to City Council member activities (see content not allowed). • Links to newspaper articles, op -ed pieces, editorials, or opinions written by a City Council member (see content not allowed). • Community service, employment, education (optional). • Personal factual biographical information, e.g., birthplace, marital status, length of residency, children, etc. (optional). Mr. Clifton proposed the following not be allowed on the City Councilmember web pages: • Political advocacy. • Comments that endorse or oppose political candidates or ballot propositions. • Links to sites that endorse or oppose ballot propositions. • Links to sites that are associated with, sponsored by, or serve a candidate for elected office, any political party or organization supporting or seeking to defeat any candidate for elective office, including a Council member's campaign site. NOTE: Maintains the appearance of not endorsing political content (RCW 41.06.250; RCW 42.17.130; RCW 42.17.190). • Promotion or advertising of commercial services, entities, or products. • Links to personal homepages. Mr. Clifton provided social media policies being considered by the City of Seattle: Council member's social media site(s) should contain links directing users back to the Council's official website for: • in -depth information • forms • documents or online services necessary to conduct official City business Social media tools are not to be used as: o mechanisms for conducting official city business other than to informally communicate with the public o Examples of business that may not be conducted through social media include: - making policy decisions - official public noticing - discussing items of legal or fiscal significance that have not previously been released to the public by the City Mr. Clifton suggested Councilmembers also consider using a consistent City email addresses (lastname@ci.edmonds) rather than a personal email which would assist with public records requests, etc. City Attorney Scott Snyder explained Council email exchanges regarding official City business were public record regardless of whether they were in the City's possession. The City has an obligation under State law to have in place security procedures that ensure those email communications are not altered or deleted. It was easiest if Councilmembers used their City email address for city business. If Edmonds City Council Approved Minutes February 16, 2010 Page 4 Councilmembers used other email addresses, the staff would need to develop security procedures to ensure those records are provided to the City and preserved. Councilmember Wilson noted the policies were what he envisioned as a result of the Council November 2 discussion. He commented op -ed pieces written by Councilmembers often take a policy position and asked if the policy should clarify on what issues a Councilmember could take a position. Mr. Snyder explained the intent was to avoid taking a policy position on a ballot measure; the Council is prohibited from using public resources to promote or oppose anything that goes to the voters - a ballot measure, initiative, bond issue or candidate. Issues before the legislature and the City Council are policy matters but the Council is allowed to use public resources to take a position on them. The exception is a quasi judicial matter; a Councilmember should make no statement regarding a quasi judicial matter outside the hearing. He offered to revise the language to clarify what is a policy issue if the Council wished. Councilmember Buckshnis commented editorials and opinions often provide a great deal of information regarding a Councilmember's political beliefs. She asked how the content in the links would be monitored. Mr. Clifton responded after reading numerous articles contained in links on other City Council web pages, he found many were quite lengthy which would make it time consuming for a city staff member to read all the information a Councilmember included on their web page. He suggested it be self - policed. Councilmember Orvis recalled the vote regarding Council web pages on November 2 was not unanimous. Mr. Clifton advised the vote was 5 -2; 2 Councilmembers favored keeping the content more restrictive such as names and dates, the other 5 wanted to include the additional links and content proposed tonight. Councilmember Peterson suggested a bullet that clarified the difference between taking a position on a matter before the Council versus a ballot measure. With regard to self - policing, he commented every elected official did a great deal of self - policing and he did not anticipate it being a problem. As the information will be readily available to the public, he was certain any inappropriate information would be promptly reported. He did not support having staff monitor the content and suggested the rules be reviewed with the Council annually at the retreat. Councilmember Fraley - Monillas commented the proposed policies addressed the issues the Council . raised previously. With regard to who would police the content, she assumed when content was added, the staff person would review them for inappropriate material. Mr. Clifton responded that was possible but could be quite time consuming depending on the length. Councilmember Fraley - Monillas summarized citizens would ultimately police the content. Mr. Clifton suggested as Councilmembers wrote e- newsletters, opinions, etc. they ask themselves whether they were endorsing a candidate, taking a position on a ballot measure, etc. Mr. Snyder commented it was not a problem except during election years. He acknowledged there was an advantage to being an incumbent and this was one of those tools. He cautioned against having staff review web page content during an election year to determine whether it was campaign related as that had the potential to bring staff into that process in an inappropriate manner. Mr. Clifton explained this issue arose last year as a result of citizens questioning material on two Councilmembers websites. Councilmember Plunkett asked if there was any civic enforcement mechanism for including inappropriate materials. Mr. Snyder responded a complaint would be made to the Public Disclosure Commission (PDC) as well as a complaint could be filed with the City for inappropriate use of resources or against the person using the resource. Councilmember Plunkett commented Councilmembers editorialize on a regular basis from the dais and most understood the difference between advocating for a ballot measure versus a policy matter. The mechanism for addressing inclusion of inappropriate material would be a complaint. Edmonds City Council Approved Minutes February 16, 2010 Page 5 Council President Bernheim commented the reason he voted against the motion on November 2 to have the policy returned to the Council for future review was not to keep the "bare- bones" websites but because he favored each Councilmember being responsible for their own web content. If a Councilmember wanted to post campaign materials, they would suffer the consequences if it violated State law. He did not support setting restrictions on Councilmembers' own web pages and preferred to allow each Councilmember to police their own web page rather than establishing a policy. Councilmember Wilson suggested adding language to the policy that complaints should be directed to the Council President. He anticipated if a Councilmember did not respond to complaints regarding inappropriate content on their web page, the Council President could bring the implications of their actions to their attention. The policy should also state citizens can file a complaint with the PDC. To Council President Bernheim, he agreed it was up to a Councilmember to include whatever information they wanted on their web page and the PDC would inform them and impose a fine if the material was determined to be inappropriate. Mr. Clifton advised the City of Everett's was one of the few cities where the information was consistent between Councilmember web pages. On many city and county web pages, the content on each web page varied dramatically. Councilmember Buckshnis commented her opponent included political information on his website and although she did not complain, some of her supporters did and it took up a great deal of staff time. She supported not allowing external links, editorials, e- newsletters, and keeping the content to basic information. She anticipated during an election year, there would be a barrage of complaints. Councilmember Fraley- Monillas commented she filed a complaint last year with regard to content and the information was removed by the City immediately. It was a Councilmember's choice whether to maintain a personal website that could contain whatever they wished. However, a City website should not be used for a Councilmember's own gain. She favored the City's website be only about Council business, committees served on, etc. Councilmember Orvis questioned why it was necessary to expend City staff time and resources to maintain Council websites when Councilmembers could create and maintain their own websites free of charge on a private server. He favored restricting City websites to basic information such as name and contact information. During campaigns, the City could add pictures and contact information for Council challengers. Student Representative Marmion commented Councilmembers having private websites made it difficult for citizens to find their websites. He recalled when searching for information on U.S. Senators for a school paper, it was difficult to locate their individual websites. Having Councilmember web pages on the City's website made it easier for citizens to locate the information. Councilmember Peterson agreed with Student Representative Marmion's comments. He noted the Council often talked about transparency and the need to provide citizens information particularly via the City's website. He did not understand the reluctance to provide information regarding the Councilmember web pages, noting the more information citizens had, the better. He supported providing citizens the Council's opinions regarding issues important to citizens and making it easy to find. With regard to the complaint made by Councilmember Buckshnis' supporters, he noted the complaint was made to the PDC who investigated and found no impropriety. The staff time devoted to that complaint was due to the very loose existing policy. Under the proposed policy, complaints would be directed to the PDC and they would decide whether information was inappropriate. He favored a policy that allowed Edmonds City Council Approved Minutes February 16, 2010 Page 6 Councilmembers to provide information to citizens. He reiterated the importance of transparency, noting the more citizens knew about a Councilmember's position, the more transparent the process was. COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCILMEMBER FRALEY- MONILLAS, TO ADOPT THE RECOMMENDED COUNCIL WEB PAGE AND CITY COUNCILMEVIBER WEB PAGE POLICIES. Councilmember Wilson referred to the complaints cited by Councilmembers Fraley - Monillas and Buckshnis, noting in both cases the process worked. If the intent was to engage citizens, there was no better way than to allow a full conversation on Councilmembers web pages within these parameters. He suggested Councilmembers look at providing information from the citizens' perspective. Councilmember Fraley- Monillas commented as a citizen, she was opposed to using the City's resources for political gain. She reiterated Councilmembers could have their own websites; the Council web page belonged to the City and citizens and should be strictly regarding City Council related matters. She agreed with the proposed content that not be allowed such as political advocacy, comments that oppose or endorse political candidates, links to sites that endorse or oppose ballots, links on sites associated with, sponsored by or serve candidates for elected office, promotion or advertising of commercial businesses, entities or products, and links to personal homepages. Councilmember Orvis explained transparency was not putting a Councilmembers' own public policy statements on a public asset and limiting challenge or response; that was one -sided campaign -style advocacy. He suggested Student Representative Marmion's point could be addressed by giving all Council candidates a link on the city's web page. In that manner, all staff maintained was the link, not the content. He concluded Councilmembers who did not compare their views with someone who may disagree during a campaign was not transparency, it was just campaigning. He was opposed to using a City resource to advocate a Councilmembers' policy decisions without allowing the resource to be used for an opposing view. He summarized the City's web page was a public asset that could be used as a public forum such as providing each candidate a link. This would level the playing field for incumbents and challengers, bring campaign discussions to light and minimize the need for the campaign contributions. He preferred to find a way to use the web page as a proper forum rather than for one side to post their policy views. He did not support the motion. Councilmember Plunkett commented it was likely that Councilmembers could write an editorial that avoided campaign rhetoric and did everything but say vote for them. He found the inclusion of editorials and links problematic. He was also concerned with the enforcement mechanism; once a complaint was filed with the PDC, it may take weeks for them to investigate and an appeal may further delay a decision. Councilmember Peterson agreed a Councilmember could abuse their web page just as a Councilmember could abuse their Council seat. For example, nothing stopped him from wearing a campaign button or hat; he could be told not to but it was unlikely to be physically removed. He acknowledged such actions would be chastised by the public, the Mayor and Councilmembers but he could still take that action. Similarly, if inappropriate information was included on a Councilmember's web page, they would be chastised by the public. He supported allowing Councilmembers to self - police the content, noting citizens continually self - policed themselves. With regard to placing links on the City's web page to candidate websites, Councilmember Peterson noted it was easy to run for office — a check and a voter registration. There was potential for links on the City's website to websites that may be inappropriate. He suggested consideration be given to eliminating external links. He agreed Councilmembers having a web page was an advantage during an election; being an incumbent was a campaign advantage. Edmonds had an educated citizenry and they want information regarding their elected officials. Edmonds City Council Approved Minutes February 16, 2010 Page 7 Councilmember Buckshnis reiterated the City's web page should be kept clear of political rhetoric. With regard to self - policing, she noted it was a matter of judgment. Finding a Councilmembers' website only required googling their name. She feared it could get ugly during campaign years and waste a great deal of staff time. Councilmember Fraley - Monillas referred to the content Mr. Clifton proposed and asked for clarification whether newspaper articles, op -ed pieces, editorials and opinions written by a Councilmember could be on a Councilmember's web page as long as they were not political. Mr. Clifton agreed. She summarized what would not be allowed was political information. Councilmember Plunkett reiterated it was possible to write a political editorial without using political words. He pointed out because Council meetings are televised, whatever is said is available to the public. COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO AMEND THE POLICY TO INCLUDE A PROVISION RELATING TO ENFORCEMENT THAT THE COUNCIL PRESIDENT WOULD BE THE PRIMARY RECIPIENT OF COMPLAINTS AND INCLUDE CLEAR INSTRUCTIONS FOR CITIZENS TO FILE COMPLAINTS WITH THE PUBLIC DISCLOSURE COMMISSION. Councilmember Peterson commented including this enforcement mechanism improved the use of web pages as a tool for the public to learn about Councilmembers. THE VOTE ON THE AMENDMENT CARRIED UNANIMOUSLY. COUNCILMEMBER BUCKSHNIS MOVED, SECONDED BY COUNCILMEMBER PLUNKETT, TO AMEND THE POLICY TO REMOVE LINKS TO E- NEWSLETTERS, LINKS RELATED TO CITY COUNCILMEMBERS' ACTIVITIES AND LINKS TO NEWSPAPER ARTICLES, OP -ED PIECES, EDITORIALS OR OPINIONS. Councilmember Buckshnis did not support allowing external links, noting her personal website was fairly lengthy but did not discuss anything political. Councilmember Plunkett expressed support for the amendment, pointing out even with this amendment, the policy was a good step forward and better than what currently exists. Council President Bernheim did not agree with the effort to limit the ability of Councilmembers to communicate their ideas to the public. He preferred to err on allowing Councilmembers to communicate whatever they wanted to and suffer the consequences if inappropriate material were included versus limiting their ability to include a link to an article a Councilmember wrote regarding a City issue. Councilmember Wilson commented the current lack of policy was essentially Council President Bernheim's preferred alternative; Councilmembers could post whatever they wanted and would be notified if a complaint were filed by a citizen. Mr. Clifton advised policies were discussed at the Council's 2002 retreat, and included the following (the last three bullets on the list of allowed content for City Council web pages): Governmental and public educational institutions located within the State of Washington. Links to local organizations having a recognized relationship with the City of Edmonds or with which the City of Edmonds partners in order to provide services, including but not limited to the Edmonds Chamber of Commerce, Port of Edmonds, and Stevens Hospital. Links to local cultural, artistic, civic or non - profit recreational organizations having either a recognized relationship with the City of Edmonds or specific and direct relevance to City residents. Edmonds City Council Approved Minutes February 16, 2010 Page 8 The Council's motion November 2 stated "options for a policy 2+ that allows for as wide a distribution of information as possible..." Councilmember Wilson pointed out Councilmembers currently had biographical information on the website that exceeded those three bullets. Mr. Snyder commented as Councilmembers, everything they said was political. It would be difficult for staff to differentiate a Councilmember's communication on policy matters with the public from politics; they were inherently intertwined. Councilmember Wilson disagreed this was a step forward. Eliminating any ability to communicate Council positions via reference simply would be the existing policy. Councilmember Plunkett reiterated even eliminating editorials and links was a step forward in communications with citizens. UPON ROLL CALL, THE VOTE ON THE AMENDMENT CARRIED (5 -2), COUNCILMEMBERS PLUNKETT, PETERSON, FRALEY- MONILLAS, BUCKSHNIS AND ORVIS IN FAVOR; AND COUNCIL PRESIDENT BERNHEIM AND WILSON OPPOSED. Councilmember Peterson asked whether the Council could agree to include links on the City Council web page to articles written by Councilmembers. Mr. Clifton agreed that could be done via a majority decision of the Council as it would then be a Council - supported article. Councilmember Peterson advised that would provide an opportunity to include links to published articles on the City Council web page. Mr. Clifton agreed, for example, the King County Council web page has articles related to the future of cable television, preparing for floods, etc. Councilmember Wilson pointed out the policy regarding allowed content for Councilmember web pages did not allow commentary regarding their position on an issue. Mr. Clifton explained what remained was Council name and position number, contact information, year elected and terms served, current and former Council committees and appointments /assignments, regional representation, community service, employment, education, and personal factual biographical information. Councilmember Wilson asked whether for example a Council could state they have worked on the CTAC Committee for 12 years because they felt it was a great idea and wanted fiber optics in the community. Mr. Clifton advised a Councilmember could list current and former Council committees and appointments and a reason could be stated. Councilmember Wilson pointed out the reason a Councilmember served on a committee was not listed as allowed content. Mr. Clifton advised the policies were now similar to the policies proposed on November 2, a more restrictive web page similar to the City of Everett's Councilmember web pages. Councilmember Wilson commented he would be disappointed in terms of public education if the Council did all this work and were limited to including only name, rank and serial number. Councilmember Plunkett commented the amended policies but an enhancement to the existing policies. including "I" statements on the City's web page. policies were more restrictive than the proposed He did not mind restricting Councilmembers from Councilmember Fraley- Monillas pointed out Councilmembers have the ability to create and maintain their own websites that can include whatever information they want. COUNCILMEMBER PETERSON MOVED, SECONDED BY COUNCILMEMBER FRALEY- MONILLAS, TO AMEND THE POLICY SO THAT AN ITEM ALLOWED ON INDIVIDUAL COUNCIL WEB PAGES WOULD BE COMMENT REGARDING THE BROAD BASED ITEMS OF SIGNIFICANCE, E.G. COUNCIL HOT TOPICS AND /OR NEWS. Edmonds City Council Approved Minutes February 16, 2010 Page 9 Councilmember Peterson explained if the Council decided there was a hot topic, it would be appropriate for each Councilmember to address the topic on their individual web page if they chose. Councilmember Plunkett asked how the term hot topic would be defined. Councilmember Peterson suggested along with deciding what links could be included on the City Council web page, hot topics could be decided by a majority of the Council or perhaps the Council President could make that determination. Councilmember Plunkett suggested a mechanism for determining what was a hot topic would need to be developed. Councilmember Peterson suggested it be up to the Council President to decide on items of significance/hot topics unless a majority of the Council disagreed. He requested that be added to the amendment. Councilmember Wilson did not support allowing the Council. President to determine what was a hot topic. If Councilmembers were allowed the latitude to discuss items of importance to the community, it should not be up to the Council President to determine what was a hot topic. Councilmember Fraley- Monillas expressed support for the amendment, suggesting the Council try allowing the Council President to determine hot topics. Councilmember Plunkett was not comfortable with allowing topics to be determined solely at the Council President's discretion. He preferred the amendment without the addition, noting the Council could agree to include a Council editorial on the web page which could be a hot topic. Councilmember Peterson asked who would determine hot topics. Mr. Clifton suggested it would be a majority of the Council. Mr. Snyder explained the Council voting by a majority to include an item on the web page meant only topics or positions that a majority of the Council supported would be included on the website. If the intent was to allow for a minority position or communicate the Council's position to the public, selecting a topic and allowing Councilmembers to state their position may disseminate minority views more effectively to citizens. COUNCILMEMBER PETERSON WITHDREW HIS AMENDMENT WITH THE AGREEMENT OF THE SECOND. COUNCILMEMBER WILSON MOVED, SECONDED BY COUNCILMEMBER PETERSON, TO AMEND THE MAIN MOTION TO ALLOW CONTENT FOR CITY COUNCILMEMBERS TO INCLUDE COMMENTARY RELATED TO CITY BUSINESS. Councilmember Wilson commented this would allow Councilmembers to discuss topics they felt were important regardless of whether it was support /opposed by a majority. Councilmember Plunkett commented City business could be defined as anything, including whatever a Councilmember wanted to editorialize about. Councilmember Wilson responded with the elimination of links to editorials, there was no other way for Councilmembers to provide information to citizens regarding their vision for the community or their goals while in office. Councilmember Peterson explained he agreed to remove links as they have the potential for misinformation, political articles, opinions, etc. Having a Councilmembers' commentary on the web page would make it easier to police. Edmonds City Council Approved Minutes February 16, 2010 Page 10 Councilmember Plunkett pointed out the amendment would lead to editorials and editorials lead to political content without the political words. Councilmember Fraley - Monillas asked how City business was defined. Councilmember Wilson responded it was a generally accepted term and would include topics the Council had discussed and future Council topics. Councilmember Plunkett commented there was no clear definition of City business; City business was not restricted to what the Council did, it could be anything related to the City. UPON ROLL CALL, THE VOTE ON THE AMENDMENT CARRIED (4 -3), COUNCILMEMBERS PETERSON, FRALEY- MONILLAS, WILSON AND COUNCIL PRESIDENT BERNHEIM IN FAVOR; AND COUNCILMEMBERS BUCKSHNIS, PLUNKETT AND ORVIS OPPOSED. VOTE ON THE MAIN MOTION AS AMENDED: UPON ROLL CALL, THE VOTE ON THE MAIN MOTION AS AMENDED FAILED (3 -4), COUNCILMEMBERS FRALEY- MONILLAS, WILSON AND PETERSON IN FAVOR; AND COUNCILL PRESIDENT BERNHEIM, COUNCILMEMBERS ORVIS, BUCKSHNIS, AND PLUNKETT OPPOSED. 6A. CONSIDERATION OF A RESOLUTION IN SUPPORT OF HB 3181 AND SB 6851 REGARDING THE CLEAN WATER ACT OF 2010 AND FUNDING CLEANUP FOR WATER POLLUTION. Councilmember Peterson explained approval of the bills would assist cities with paying for municipal stormwater discharge updates. He read the proposed resolution. COUNCILMEMBER PETERSON MOVED, SECONDED BY COUNCILMEMBER FRALEY- MONILLAS, TO ADOPT RESOLUTION NO. 1222 IN SUPPORT OF HB 31.81/SB 6851 CONCERNING THE CLEAN WATER ACT OF 2010 AND FUNDING CLEANUP FOR WATER POLLUTION. Councilmember Peterson explained the bill will increase the tax on contaminants that chemical corporations and oil and gas corporations bring into the State. Councilmember Wilson expressed support for the bill, commenting it was supported by a wide range of environmental groups. For Councilmember Fraley - Monillas, Councilmember Peterson advised the hearing on the bill was tomorrow afternoon. I I Is I AXIII I D[COM I I I OLVA WI I [110'rem ti ti 1 of 11 110r.1101 [$1IL`I1►• 6B. QUASI JUDICIAL TRAINING BY CITY ATTORNEY. City Attorney Scott Snyder explained the Council recently voted to reassume a variety of hearing duties. The Council would be wearing a very different hat during those hearings. When Councilmembers sit as judges in a quasi judicial capacity, they are not legislators but neutral decision makers. Their decision - making process is restricted to the record and the criteria in the code. The Council did not have the ability to do what they thought was fair or to change the rules during the process. He referred to The Open Public Meetings Act, Chapter 42.30 RCW that was included in the packet. He emphasized that as the Council sat as judges, they could consider only the record before them; they could not communicate with constituents before, during or until the decision is final regarding the subject matter Edmonds City Council Approved Minutes February 16, 2010 Page 11 of the appeal and they cannot consider any information outside the hearing process. The public comment the Council can consider is only what was taken by the Hearing Examiner during the preceding process. He explained when the Council passed an ordinance creating a new law, the Council was sitting as legislators. They could talk to anyone, consider their personal experiences, poll people, consider petitions, etc. When the Council sat in a quasi judicial capacity, what the majority of people want /think was irrelevant to the process, The Council must balance the position of the applicant and appellant /applicant and put aside what the majority thinks. If the person before the Council is correct, the fact that the neighborhood is in opposition is irrelevant to the Council's decision. Site specific rezones and development applications are fairly straight forward. A Comprehensive Plan amendment followed by a site specific rezone is more complex as the Comprehensive Plan amendment is legislative and the Council has more latitude in its decision - making. Once the Comprehensive Plan amendment is approved, the site specific rezone becomes quasi judicial which is why these are usually presented to the Council in a two -step process. He commented the majority of problems arise via the Appearance of Fairness Doctrine. The courts have interpreted it as, "would a disinterested person apprised of the totality of a member's personal interest or involvement be reasonably justified in thinking that the involvement might affect the member's judgment." The fact that a Councilmember may think they are able to make a fair decision is irrelevant; the test was what an objective observer thinks. He explained the Mayor typically opens quasi judicial hearings by asking Councilmembers for any disclosures. This is a Councilmember's opportunity to reveal any information they inadvertenly acquired via an ex parte contact (outside the process) or any interest they may have in the project. He pointed out as codified, the Appearance of Fairness Doctrine states that anything that was said as a candidate or prior to becoming a candidate for public office and money received and reported to the PDC is not disqualifying. Mr. Snyder explained the Appearance of Fairness Doctrine looked at who, what, where and why. Relationships were particularly important, for example two members of a Planning Commission who were married was determined to be a disqualifying influence. During the pendency of a quasi judicial process, Councilmembers are prohibited from discussing the application with constituents or hearing public comment on the application. He noted the Council will need to change its rules for public comment to ensure the audience comment agenda item was not used to provide ex parte communications. He urged Councilmembers not to open letters /emails and to avoid conversations regarding pending quasi judicial matters. If a Council read a letter or heard something, they would need to disclose that information at the appropriate time. Another important consideration is who has the burden or proof. If an item is not in the record, it cannot be considered. He cautioned the Council against soliciting information outside the record from either the applicant or the appellant. The Legislature via Regulatory Reform adopted a one record hearing requirement; therefore, on appeals to the Council the record will be closed and what will be provided to the Council is argument not testimony. Exceptions to Appearance of Fairness Doctrine include the following: • Full disclosure — used in the event of inadvertent exposure • Regular business — actions taken during the normal conduct of Council office • Doctrine of Necessity — if a challenge would prevent a quorum • Waiver — once information is disclosed, a party must challenge or waiver • Campaign statements /contributions — not disqualifying Edmonds City Council Approved Minutes February 16, 2010 Page 12 Mr. Snyder explained if a party challenged a Councilmember's participation, neither the Council's rules or State statute had any provision for removing a Councilmember. His advice was if in doubt a Councilmember should recuse themselves; however, it was a Councilmember's personal decision. Applications of the Appearance of Fairness Doctrine include: • Prejudgmental bias — Councilmembers should avoid making absolute statements regarding a pending application • Business relationships • Social /marital status • Memberships and organizations — Councilmembers may attend community organization meetings before an appeal is filed. If a Councilmember is a member of an organization that regularly takes positions on pending applications, he /she should consider resignation. • Personal benefit /detriment • Ex parte contact/evidence outside the record He urged the Council to avoid statements such as, "The people of Edmonds are against this application" or "I visited the site this morning." A site visit was not allowed unless the parties agreed to a waiver and the entire Council conducts a site visit that was noticed as a public meeting. Information from a Councilmember's personal knowledge also cannot be considered in the deliberation. Councilmember Wilson asked whether a Councilmember could use their experience to make a judgment regarding a blatant error /misstatement of fact in the record. Mr. Snyder answered that information could be balanced. If the criteria requires that the fact be proven, the question would be who has the burden of proof. Because the Council is limited to one hearing, the matter cannot be remanded for further evidence. He acknowledged there may be disputed facts in the record. A developer has a distinct advantage in the process; they often hire experts who provide expert testimony and reports. Citizens can question the testimony but the facts are established by expert testimony. Councilmember Buckshnis inquired about friendships, whether Councilmembers should recuse themselves if a friend is associated with an applicant. Mr. Snyder responded it was always safest to disclose a friendship and the parties could raise a challenge if they felt it was inappropriate. Councilmember Orvis asked whether the site was part of the record, noting the Hearing Examiner often visited the site. Mr. Snyder explained the Hearing Examiner tried the facts and in establishing the record will provide information regarding the site. If the Council felt a site visit was critical, they could ask the parties for a waiver to allow the Council to conduct a site visit. If the Council did visit the site, they would need to go together, it would need to be noticed as a special meeting, and the applicant and appellant would need to be in attendance. If a Councilmember had personal knowledge of a site, that knowledge cannot be used in deliberation. Councilmember Orvis observed the Council would be limited to what the Hearing Examiner provides with regard to their site visit. Mr. Snyder agreed Council would be limited to the information in the record. Council President Bernheim pointed out on a site specific rezone, the Planning Board conducted the hearing, not the Hearing Examiner. He expressed concern that depending on the manner in which the hearing was conducted, information/materials may /may not be entered into the record. Mr. Snyder pointed out Regulatory Reform rules regarding one hearing and 1.20 days applied only to development applications; site specific rezones could be remanded for further proceedings if the Council determined the record was inadequate. Edmonds City Council Approved Minutes February 16, 2010 Page 13 Mr. Snyder continued his presentation, explaining the conflict of interest provision in State statute prohibits a municipal officer from using their position to secure special privileges or exemptions for themselves or others. If a Councilmember or member of their family had even a remote financial interest in a project or applications, he recommended Councilmembers recuse themselves. The consequences of violating the Appearance of Fairness Doctrine include voiding of the Council's action by the judge and a damages claim. If a Councilmember is challenged and it is a close /reasonable challenge, he recommended the Councilmember step down, leave the room or the proceeding be started over without the member. Hearings must be fair in fact, appear fair, and follow procedures. He cautioned the Council to avoid asking questions like Perry Mason, reiterating the Council was limited to information in the record. He suggested during questioning, Councilmembers ask where in the record information could be found. During its deliberations, he urged the Council to refer to the criteria as the written decision must include Findings of Fact and Conclusions of Law. Councilmember Buckshnis referred to Opal v. Adams County the Commissioner who received 63 long distance phone calls, and the Commissioner's indication that he was involved in a few phone calls but it was not a violation because they talked about other subjects. Mr. Snyder explained that was in regard to the totality of circumstances; in that instance the Commissioner revealed he had phone calls but the appellant was unable to prove the subject of the phone calls. In addition, no challenge was made at the time of the hearing on the basis of the phone calls. Mr. Snyder concluded the important message was any contacts needed to be revealed early in the process. Councilmember Plunkett pointed out these standards and procedures had been followed by the Council in the past, they were not new. Mr. Snyder agreed, noting it had become more difficult with Regulatory Reform and application of case law. Councilmember Plunkett inquired about the previous application for the waterfront property. Mr. Snyder explained there would be a new process on any future application and it could become quasi judicial. Any parties of record in the previous application would need to reinstate themselves as parties of record in a future application. He cautioned Councilmembers to avoid any statements that could be considered prejudgmental bias. Councilmember Orvis pointed out although the record would be closed, Councilmembers have the ability to review City codes and RCWs. He asked whether Councilmembers could review applicable court cases. Mr. Snyder answered Councilmembers can take notice of City ordinances and Comprehensive Plan provisions. In the case of site specific rezones, the rezone must be consistent with the Comprehensive Plan. The Comprehensive Plan has many balancing provisions; it may be beneficial for the Council to take the time to review the Comprehensive Plan or request the City Attorney's office to brief points for them. The Council also has the ability to continue their deliberation and decision to a future meeting. He invited Councilmembers to ask questions or ask for a briefing on specific issues. 7. REPORT ON CITY COUNCIL COMMITTEE MEETINGS OF FEBRUARY 9, 2010. Community Services /Development Services Committee Councilmember Peterson reported the Committee reviewed the following topics: A. Continued discussion on regulations concerning bikini barista stands — the Committee learned the City's code is better able to address this issue than Everett's code. Committee recommended forwarding two options to the full Council for consideration. B. Discussion regarding changes to City Code 5.05.060, Dogs on Public Grounds — staff recommends amending the code to permit on -leash dogs in 1) Sunset Overlook Park, 2) Hickman Edmonds City Council Approved Minutes February 16, 2010 Page 14 Park, and 3) the new park at 162 ad Street SW. A public hearing will be scheduled at an upcoming Council meeting. C. What can be made available to Council on appeal — staff is revising the code to eliminate the PRD system and include it in the subdivision regulations. D. Request from Historic Preservation Commission for waiver of certain fees related to historic structures — staff replayed a proposal to exempt properties on the historic register from paying a fee for a pre - application meeting. A resolution will be presented to the full Council for approval. E. Proposed Title 18 Code amendments to allow use of City right -of -way for bistro and outdoor dining and placement of art in City right- of-wa — staff reviewed proposed amendments that will be presented to the full Council at a public hearing. F. Proposed policies for Stormwater Comprehensive Plan update — staff provided information. Councilmember Peterson will work with Stormwater Engineering Program Manager Jerry Shuster, Public Works Director Noel Miller and citizen groups on the update. G. Continued discussion regarding the removal of colored street markings used for locating utilities — based on the difficulty to effectively remove paint markings and the additional staff time required to monitor for compliance, the committee recommended consideration of the proposal to require removal of paint markings be discontinued. H. Discussion on PRD setbacks — this issue may become moot if PRDs are eliminated from the code and included in the subdivision code. I. Discussion on Conditional Use Permits for home occupations — future Council work sessions will be scheduled on this topic. Finance Committee Councilmember Plunkett reported the Committee reviewed the following topics: A. Alderwood Water Supply contract final review — staff briefed the committee on the contract. Staff will prepare the contract and forward for review by the full Council. B. Wireless internet rollout in Council Chambers — this will include physical infrastructure improvements to the Council chamber, on -going citywide information network improvement, installation of the wireless hub, and procedural and legal training for Council members interested in using internet and email during Council meetings. C. Funding proposal for the Building Maintenance Fund 116 — Public Works Director Noel Miller requested $300,000 of the net cash received from the Fire District 1 contract be used to address various capital projects. The Committee recommended forwarding this to Council for review. D. Discussion and review of long -term difference between presentation in relation to the Fire District 1 contract in November of 2009 and finance update of January 25, 2010 — Lorenzo Hines, Director of Finance and Information Services, provided the committee with an overview of the differences between the October 16, 2009 (Option 4) budget forecast and the January 25, 2010 budget forecast. Director Hines indicated that the differences between the two reports lie in the fact that the revenue trends for the latest report have been reduced due to the current economic climate. Director Hines further explained that these forecasts, like all other forecasts, are a point in time estimate based on available data. Councilman Plunkett expressed disappointment that the October 16, 2009 forecast was not more current. Director Hines indicated that the figures were the best information available at that time. For information only, no further action required. Councilmember Plunkett advised the Finance Committee meeting was recorded and he has requested a copy of the recording. 8. MAYOR'S COMMENTS Mayor Haakenson had no report. Edmonds City Council Approved Minutes February 16, 2010 Page 15 Councilmember Buckshnis was also disappointed with the information provided at the Finance Committee. The current administration relied on the past administration's numbers; the past administrator is now working for Fire District 1. She recalled many citizens including herself raised issue with the numbers but they were ignored. She has also requested a copy of the recording. Councilmember Buckshnis reported town hall meetings will be held the last Friday of each month from 6:00 — 8:00 p.m. The first meeting is February 26 in the gym therapy room of Prestige Care and Rehabilitation Center at 21008 76th Avenue West. The first town meeting will be a meet and greet and listening to people opinions. She encouraged the public to attend. With regard to PRDs, Councilmember Orvis explained staff was proposing a code revision that would eliminate the PRD process. He recommended the Council review the proposal and determine whether any action needed to be taken in the interim. He suggested scheduling this as a 15 minute agenda item at a future Council meeting. Councilmember Wilson explained the original intent of the PRD code established by the State was to allow preservation of environmental features and allow averaging to create the lots which reduced the lot sizes. The current Edmonds PFD code does not reflect that intent. He suggested the intent of the original PRD code be retained and if the PRD code were eliminated, the code include tools to preserve environmental features. Councilmember Orvis explained staff's intent was to include that in the subdivision code. Councilmember Wilson was disappointed to learn the Finance Committee was presented a fourth set of numbers regarding the Fire District 1 contract. If the City needed a fourth set of numbers, perhaps the Fire District 1 contract should not have proceeded as rapidly as it did. With regard to using the previous administration's numbers, he pointed out the current Finance Director was hired in August and the numbers were provided in October. 10. ADJOURN With no further business, the Council meeting was adjourned at 9:50 p.m. Edmonds City Council Approved Minutes February 16, 2010 Page 16