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09-11-12 Public Safety and Personnel Committee MinutesPUBLIC SAFETY/PERSONNEL COMMITTEE MEETING MINUTES September 11, 2012 Committee members present: Council Member Joan Bloom Council Member Kristianna Johnson Others present: Mayor Dave Earling Council President Strom Peterson City Attorney Jeff Taraday Community Services/Economic Development Director Stephen Clifton Reporting Director for HR Carrie Hite HR Manager Mary Ann Hardie HR Consultant Tara Adams Citizen Ken Reidy Citizen Don Hall Council Member Joan Bloom started the meeting at 6:27 pm. DISCUSSION ON MINUTES/NOTE TAKING FOR EXECUTIVE SESSIONS Council Member Bloom stated that she wanted to discuss minutes vs. notes during executive sessions [with regard to executive sessions that contained attorney/client privileged information as well as exemptions and release of executive session information under the Public Records Act (PRA) exemptions]. Council Member Bloom asked City Attorney Jeff Taraday to clarify what is protected by attorney -client privilege (exempt from release as a public record) as well as clarification on all things that should not be kept private from the public. Council Member Bloom further stated that she was interested in focusing on [looking into] recording executive sessions as described by Toby Nixon of the Washington Coalition for Open Government who made a recent information presentation to Council on this subject. City Attorney J. Taraday stated that he would generally agree that the items on Mr. Nixon's list that were considered exempt from public records disclosure would be exempt although he has not had a chance to thoroughly cross check every item on the list that was presented. City Attorney Taraday further stated that he was not prepared at this time to go through the items on the list provided by Mr. Nixon (one by one) and agree or disagree although he does not have a quarrel with the information provided. Additionally, there are certain types of executive sessions in which the PRA does not provide clear protection. Council Member Bloom requested that City Attorney J. Taraday provide additional clarification on items that were considered to be attorney -client privileged. City Attorney J. Taraday stated that any time that Council meets in an executive session regarding litigation or pending litigation, this would (in his opinion) have attorney -client privilege or work product privilege and is non-disclosable. This covers a large portion of what is discussed in executive session. Council Member Johnson questioned if the Council should have written rules about how to conduct executive sessions. For example, what subjects are allowed by state statute, what is the process if a Council member states that the subject of discussion is not allowable by state statute? What are the rules for running an executive session? In the past there were concerns about who gets to talk and for how long. Other concerns have been raised about who may be invited to executive sessions, and who extends the invitation. Council Member Johnson requested that the rules be written down and that all of the allowable subjects identified by RCW be listed. This could serve as a resource for City Council members. City Council President Peterson agreed that this was a good idea. He will work with the City Attorney Jeff Taraday to draft rules for conducting executive sessions and provide the necessary reference materials. Council Member Bloom inquired as to how the recording of executive sessions (documentation) should be handled since the "minutes" from the session are not approved, so they are not legally minutes. Additionally, how should Council continue to address the recording of meetings (in what form), etc. Council Member Bloom stated that she would like everything to be recorded if possible (to the extent that it is not protected) and that there was a need to look at two different categories of sessions - those protected and those not protected from disclosure (under PRA). Revised 9-27-12 Council Member Johnson stated that it would be important to monitor legislative changes regarding this and that Mike Doubleday could keep the Council apprised on this subject with any changes. Council Member Johnson further inquired as to whether or not there was a retention schedule regarding previous Council notes. City Attorney J. Taraday stated that there should be a good reason for continuing to keep notes on executive sessions and/or why Council would want to make a record of executive sessions since, as privileged conversations, they [the records] will be unlikely to be disclosed. City Attorney J. Taraday further explained that a questionable reason to keep record of the executive sessions would be so they [the records] could be disclosed in the near future. There is a risk in keeping a record of exempt items and an audio or video is quite thorough. Council Member Johnson asked if individual Council Members' notes were exempt from public disclosure. Mr. Taraday stated that Mr. Nixon had made the assertion and reference case law. Mr. Taraday stated that he would have to do research in order to make a legal determination. Council Member Bloom stated that she liked the transparency of having all the information disclosed to the extent that it may be disclosable but [that it seems appropriate] to just record only attorney -client privilege information until the legislature comes out with new information. Council Member Johnson stated that she respectfully disagreed due to the risk [of keeping such a recording] and based on advice of the AWC, MRSC, and City Attorney. Council Member Johnson stated that the Council should have clear rules about how executive sessions are recorded and that it would be important to continue to monitor legislative issues with Mr. Doubleday pending checking on further information on Council notes in executive sessions. Responding to a question from Mr. Taraday, Council Member Bloom read the list of reasons given by Toby Nixon for recording executive sessions: • To resolve disagreements over what transpired or was said • To hold attorneys and others accountable for advice given or information provided in closed meetings • To allow newly -appointed or newly -elected members of the body to catch up on previous executive session discussions • To improve the ability of the agency to defend itself if it is accused of having an inappropriate discussion in an executive session Recommendation The Committee reached agreement on four items: 1. The Council should have executive session rules and reference materials. 2. Legislative action to modify executive sessions should be monitored through the city's lobbyist and associations (AWC, MRSC). 3. The retention schedule for previous Council executive session notes should be researched. 4. Consider not recording real estate matters. The Committee did not reach agreement regarding records of legal discussions. PUBLIC COMMENT PERIOD Citizen Ken Reidy stated that it is the actions in Executive Session that can create liabilities, not the recording of the actions. Those actions are subject to review by the courts whether those actions are recorded or not. Citizen Reidy opined that everyone would be better off if there was an audio or video recording (which does not require review and approval) that can be used when needed. Citizen Reidy pointed out that Mayor Earling was City Council President in 1996 when Resolution No. 853 was passed as it was in the public interest. He stated this step by the Council was a big deal as they knew State law did not require them to take minutes of Executive Session, yet they were motivated to do so anyway. Citizen Reidy encouraged the City to not go backwards in the Open Government and Transparency area. He recommended the City actively lobby the State related to recording Executive Sessions. JOB DESCRIPTIONS REVIEW Reporting Director for HR Carrie Hite explained that the job descriptions project has been a process in the works with WCIA and the unions. The City hired Public Sector Personnel Consultants as a consultant to this project and HR Consultant Tara Adams and HR Manager Mary Ann Hardie have worked on the job descriptions as well as every 2 Revised 9-27-12 employee (including managers and directors) The job descriptions contain updated Americans with Disabilities Act (ADA) language. Out of concerns for potential financial impacts of job reclassifications, HR worked closely with the unions so that there were no reclassification requests [with financial impacts] at this time from the job descriptions update. There was some discussion that followed about the job descriptions in the development services department and in the public Works department as to why some positions on the second floor of City Hall [engineering] reported to public works and why others [planning and building] reported to the [acting] development services director. Council Member Bloom inquired as to whether the City would look at restructuring the development services department to provide more efficiencies and the impact of this upon job descriptions. Mayor Dave Earling stated that this issue was currently under discussion with management and that he is aware of Council Member Bloom's concerns and is working to address them. Mayor Earling stated that he had been trying to understand what each department does and it responsible for and also what each employee does [through the job descriptions]. Additionally, he has put a working group (consisting of Phil Williams — Public Works & Utilities Director, Leonard Yarberry — Building Official, Stephen Clifton — Community Services/Economic Development Director and Rob Chave — Acting Development Services Director) to have discussions regarding how to package this with more of a collaborative style in the department and for ways for things to work better but it will take time. Mayor Earling further stated that a recommendation will be put together for council approval in the future and that he firmly believes that a more friendly city is for good quality development [but requires] a collaborative approach. There was further discussion that followed about re -organizations and what departments could be eligible for reorganization. Council Member Bloom stated that she wanted to understand the role of Council in reviewing organizational chart and job descriptions. Reporting Director for HR Hite stated that, as she understood, Council has authority over working conditions in job descriptions and personnel policies as well as benefits and the Mayor has responsibility and authority to hire, terminate and discipline employees (aside from positions appointed by Council). Additionally, the Mayor can reorganize and make recommendations on the budget but has to have financial authority from Council although he has the financial parameters from Council to "run" the City. There was further discussion that followed about the Mayor's expectation of Council regarding the job descriptions as well as how many more different job duties of employees were going to be affected with the voluntary separation incentive program (VSIP). Mayor Earling stated that he has reviewed the organizational chart and the job descriptions and that he is comfortable with the layout [of both]. Mayor Earling stated that he understood that he will make decisions [regarding a reorganization] depending on the issues that may arise from the VSIP [or the budget], but that with feedback Council Member Bloom about the second floor reorganization [development services] is being taken seriously and will be taken into consideration after a thorough review has been done. Council Member Johnson inquired as to how much more different the job duties of employees were going to be for those positions that would be affected by the VSIP changes, etc. Reporting Director for HR Hite stated that there will be changes. Council Member Johnson stated that in her review of the commissioned police officer positions it did not appear that under the "Knowledge" requirements that "Federal" knowledge was required but that it should be. Also, it was suggested that the "Maintenance Custodian" and "Custodian" position differences be reviewed. There was some discussion that followed as to why positions were not more generic and why there were specific and explanation by HR provided as to legal requirements, risk management, distribution of labor, performance management and ADA requirements that necessitated specific job descriptions. Council Member Johnson made a recommendation for the union job descriptions [SEIU, TEAMSTERS, Law Support & EPOA] be forwarded to the next Council meeting for approval but that due to concerns with the Non -Represented job descriptions that the Non -represented positions be discussed at another time. Community Services Director/Economic Development Director Stephen Clifton inquired as to what the preliminary concerns may be with regard to the Non -Represented job descriptions. Council Member Johnson stated that the there was variation in the years of experience in the Director level position as well as in the supervisory experience at the Director level. Additionally, there was clarity needed about how education and job experience were substituted on a ratio basis. Also, whether or not certifications should be required for the paraprofessional positions is a concern. Reporting Director for HR Hite requested that Council Member Johnson e-mail the technical questions to HR for further looking into before the next discussion. Revised 9-27-12 Council President Strom Peterson expressed concern as to whether or not it was clear where working conditions (such as where the Mayor gets to approve in terms of technical requirements) and changing qualifications were under Council purview. Council President Peterson stated that some latitude should be given to administration [the Mayor] to do so. Reporting HR Director Hite stated that she would e-mail City Attorney J. Taraday for further clarification on this. Council Member Bloom inquired as to whether or not there are certain directors who are considered officials [as codified in the Edmonds' Municipal Code] and that Council has to approve these appointments. Which director positions are considered officials and have to be approved by Council. Recommendation Council Member Bloom and Council Member Johnson recommended moving the represented positions [SEIU, TEAMSTERS, Law Support & EPOA] for approval at the next council meeting on 9/18/12 and that they would arrange a further meeting with HR on the Non -Represented job descriptions so that the Non -rep job descriptions would be able to move forward for Council approval on 9/25/12. ORDINANCE CHANGE FOR THE SALARY COMMISSION Council President Peterson presented the ordinance change for the Salary Commission, wanting to allow the Commission to meet anytime during the year if needed. The impetus for this request is to allow the Salary Commission to consider their recommendations during the City's budget process, so they would have full information about finances before they make a recommendation. There was some discussion that followed by the committee. Recommendation It was determined that the committee was not supportive of the recommendation with respect to the decision of the Salary Commission. Additionally, it was recommended that action toward forwarding this item to Council be delayed at this time. The Committee adjourned at 9:22 p.m. 4 Revised 9-27-12