Loading...
20191217 City CouncilEDMONDS CITY COUNCIL APPROVED MINUTES December 17, 2019 ELECTED OFFICIALS PRESENT Dave Earling, Mayor Adrienne Fraley-Monillas, Council President Kristiana Johnson, Councilmember Thomas Mesaros, Councilmember Diane Buckshnis, Councilmember Dave Teitzel, Councilmember Neil Tibbott, Councilmember ELECTED OFFICIALS ABSENT Michael Nelson, Councilmember ALSO PRESENT Zach Bauder, Student Representative 1. CALL TO ORDER/FLAG SALUTE STAFF PRESENT Ken Ploeger, Police Sergeant Patrick Doherty, Econ. Dev & Comm. Serv. Dir. Shane Hope, Development Services Director Scott James, Finance Director Rob English, City Engineer Jeff Taraday, City Attorney Scott Passey, City Clerk Jerrie Bevington, Camera Operator Jeannie Dines, Recorder The Edmonds City Council meeting was called to order at 7:00 p.m. by Mayor Earling in the Council Chambers, 250 5'h Avenue North, Edmonds. The meeting was opened with the flag salute. 2. LAND ACKNOWLEDGEMENT Council President Fraley-Monillas read the City Council Land Acknowledge Statement: "We acknowledge the original inhabitants of this place, the Sdohobsh (Snohomish) people and their successors the Tulalip Tribes, who since time immemorial have hunted, fished, gathered, and taken care of these lands. We respect their sovereignty, their right to self-determination, and we honor their sacred spiritual connection with the land and water." 3. ROLL CALL City Clerk Scott Passey called the roll. All elected officials were present with the exception of Councilmember Nelson. 4. APPROVAL OF AGENDA COUNCILMEMBER TEITZEL MOVED, SECONDED BY COUNCILMEMBER TIBBOTT, TO APPROVE THE AGENDA IN CONTENT AND ORDER. MOTION CARRIED UNANIMOUSLY. 5. AUDIENCE COMMENTS Marlin Phelps said he first began coming to City Council meetings about 4'/z years ago to address the corruption in Edmonds. He has learned many things about what actually went on and what he was a victim Edmonds City Council Approved Minutes December 17, 2019 Page 1 of; Edmonds has been a victim of the same perpetrators. James Lloyd White was innocent, a deeply religious man whose cohort was also a Snohomish County prosecutor who gave 30% of his salaryto charity. Those men, just like George Papadopoulos, were given a bag of money; all he failed to do was report it as income and for that he spent 1'/2 years in a federal penitentiary. The feds and the FBI did that because, as reported in the Everett Herald, he was a shoo-in for superior courtjudge. He was on the City Council so he had already won an election. As a superior courtjudge, James Lloyd White would have had oversight over the Edmonds Municipal Court and could have stopped the corruption in the courtroom; for that he was set up. James Lloyd White was a good man and he was innocent just as he (Mr. Phelps) was. He encouraged the City Council to hire a law firm to do a comprehensive review of the goings-on in the courtroom and the police department and find the name of the string puller because there is a Justice Department or FBI official manipulating the Edmonds court. When the Durham report comes out, he will have a dossier that details his plight; 103 summoned hearings for things he did not do. Meanwhile the City retains that same prosecutor and he urged the Council to absolve themselves of him. Justin Petersen, an Edmonds earthquake retrofit contractor, said while seeking a permit for a retrofit on a residence in Edmonds, found the City's process very antiquated, requiring a week-long process. He paid $1200 for a civil engineer certified by the State of Washington to engineer his retrofit plans only to find that the City would charge $425 to have it reviewed by a civil engineer. Most other cities in Washington including Seattle have Project Impact, an initiative that goes to FEMA and is designed to streamline the process for earthquake retrofitting. It is an over-the-counter permit subject to in -field inspection and costs $250 versus Edmonds' $425. The City acknowledging its antiquated system for permitting retrofits benefits, 1) the homeowner's safety, 2) the City in case of catastrophic seismic event, and 3) reduces red tape for contractors so they can get the job done faster. Building Official Leif Bjorback efficiently addressed his concerns and helped get his permit processed faster than the standard process. Mr. Bjorback he said he does not see these permits very often. Edmonds is an older city with a lot of structures built prior to the 1990s when the engineering code was updated to include things like anchoring to the foundation. He circulated a photograph of an anchoring bolt on the residential project he is working on in Edmonds; due to its close proximity to Puget Sound and oxidation of metal, the bolts anchoring the 33 -year old home to the foundation are severely rusted and basically obsolete with regard to loadbearing calculations. He urged the City to do something to help residents get more information about retrofitting their homes. Kyle Huffman, referred to the BID code amendment, relaying his business' assessment is paid in full. He does not support Ed! and felt the formation of the BID was a gray area at best. He recalled for two years 50% of businesses would not sign up so another way was used to form the BID. He felt the formation of the BID was an insult to the Chamber of Commerce. The BID's focus is downtown and those businesses subsidize neighboring businesses outside the BID area. Although he has paid the assessment for years, he does not feel he derives any benefit. The BID has not benefited most of the business owners he knows but most are afraid to say anything because they do not want to be perceived as not being supportive. He requested the Council table a decision on the BID code amendment until the new City Council is seated. He asked if any Councilmembers had a financial interest in the BID, relaying a group of businesses have considered doing a public information request for the financial records related to the formation of the BID to study it and hopefully get the BID abolished. He summarized it was insulting to him that any government organization thinks they can spend his business' money better for the benefit of his business. Lisa Utter, Lynnwood, representing the board that operates the emergency cold weather shelter that Edmonds hosted in the Edmonds Senior Center for several years, said the shelter is now open in Maple Park Church in Lynnwood. There is not a specific van pickup in Edmonds, there are two pickups on Hwy 99 and the shelter is relatively easy to reach. She hoped the City was distributing information about the shelter to the homeless residing in Edmonds. They will also be hosting a warming station at the Lynnwood Senior Center on December 25t' from 9 a.m. to 6 p.m. She expressed their appreciation for Edmonds' support and hoped the City would continue to support them. She wished the Council a good vacation and Edmonds City Council Approved Minutes December 17, 2019 Page 2 expressed her pleasure working with Mayor Earling on the Community Transit Board and hoped he enjoyed his retirement. Mayor Earling said he was not planning to retire. Matthew Ulrich, Edmonds, local business owner and downtown resident, referred to the BID code amendment, relaying his business' assessment was paid in full. He was opposed to forcing business owners to pay their assessment or have their business license suspended. The Edmonds Alliance provides no benefit whatsoever to his business. The green umbrellas are nice but extremely overpriced. Small business owners watch their money very closely and every dollar spent in marketing is extremely important. He pays hundreds of dollars to the Alliance and it was incorrect to believe the Alliance could spend businesses' money on marketing better than individual businesses can. If businesses were forced to pay their assessment or have their business license suspended, he said he would not be surprised to see some businesses leave Edmonds. Edmonds is built on small businesses; forcing businesses to join the Alliance is a total waste of money. His research of the BID's finances found many of the expenditures overpriced. He recommended dismantling the Edmonds Alliance and certainly not forcing businesses to pay their assessment or have their business license suspended. David Preston, Edmonds, observed in 2020, the Council will be selecting a replacement for Councilmember Nelson due to his election as Mayor. He urge the three remaining Councilmembers and the new Councilmembers to create a vision for 2020 and vote unanimously for the person selected and not require 50 votes. He urged the Council to look deeply into the candidates and create unity in the new year with a unanimous decision so that 2020 has a different feel. He thanked the departing Councilmembers and Mayor Earling for their service and looked forward to working with the new Council liaison to the Port. Erika Barnett, Salish Sea Brewing Company and Edmonds Chamber of Commerce Board Member, said they have been in good standing with the BID since locating in Edmonds. They are fully supportive and love everything about Edmonds, but she cautioned the Council against the punitive measures on the agenda for businesses that are not in good standing. Taking away someone's business license because they do not choose to fund basically a marketing campaign feels not very Edmonds -like. In addition, the Chamber sees many business owners that are confused about the different ways to contribute as there is the Chamber, DEMA, and the Edmonds Alliance. Businesses have limited funds and when they are forced to pick one because they are being taxed to do so, they cannot choose to contribute to others. The Chamber of Commerce provides the 4" of July and Halloween trick -or -treating as well as other events that make Edmonds so wonderful. She cautioned the Council not to penalize businesses who are taking whatever stand they may be by not choosing to pay the BID taxes because she felt it did not send the right message, particularly heading into 2020 with a new Chamber board. 6. COUNCIL COMMITTEE REPORTS 1. MONTHLY COUNCIL SUBCOMMITTEE REPORTS AND MINUTES Finance Committee Councilmember Buckshnis reported on items the committee discussed: • Code Amendment of ECC 3.75 Related to Downtown Edmonds BID Delinquent Assessment Fees — on tonight's agenda • September 2019 Quarterly Financial Report — on the Consent Agenda • October 2019 Monthly Financial Report — on the Consent Agenda • Creation of New Special Revenue Fund — on the Consent Agenda • Write -Off of Capital Assets — on the Consent Agenda • Ordinance to Repeal Ordinance 3303 — on tonight's agenda Parks & Public Works Committee Edmonds City Council Approved Minutes December 17, 2019 Page 3 Councilmember Johnson reported the following items were discussed by the committee and are all on tonight's Consent Agenda: • Presentation of Easements for the Citywide Pedestrian Crossing Enhancements Project • Presentation of a Supplemental Agreement with SJC Alliance for the Hwy 99 Revitalization Project • Presentation of a Supplemental Agreement with David Evans and Associates for the 76th Ave & 212th St. Intersection Improvements Project • Request for Sec 4(f) approval at Yost Park Property for the Citywide Pedestrian Crossing Enhancements Project 7. APPROVAL OF CONSENT AGENDA ITEMS COUNCILMEMBER BUCKSHNIS MOVED, SECONDED BY COUNCILMEMBER TEITZEL, TO APPROVE THE CONSENT AGENDA. MOTION CARRIED UNANIMOUSLY. The agenda items approved are as follows: 1. APPROVAL OF COUNCIL SPECIAL MEETING MINUTES OF DECEMBER 10, 2019 2. APPROVAL OF CLAIM CHECKS 3. AMENDMENT BOB BURCHOWITZ PUBLIC DEFENSE OVERSIGHT 4. AMENDMENT #4 TO PROSECUTING ATTORNEY SERVICES CONTRACT 5. CREATION OF NEW SPECIAL REVENUE FUND 6. WRITE-OFF OF CAPITAL ASSETS 7. SEPTEMBER 2019 QUARTERLY FINANCIAL REPORT 8. OCTOBER 2019 MONTHLY FINANCIAL REPORT 9. REQUEST FOR SEC 4(F) APPROVAL AT YOST PARK PROPERTY FOR THE CITYWIDE PEDESTRIAN CROSSING ENHANCEMENTS PROJECT 10. AUTHORIZATION FOR MAYOR TO SIGN THE EASEMENTS FOR THE CITYWIDE PEDESTRIAN CROSSING ENHANCEMENTS PROJECT 11. AUTHORIZATION FOR MAYOR TO SIGN A SUPPLEMENTAL AGREEMENT WITH DAVID EVANS AND ASSOCIATES FOR THE 76TH AVE & 212TH ST. INTERSECTION IMPROVEMENTS PROJECT 12. AUTHORIZATION FOR MAYOR TO SIGN A SUPPLEMENTAL AGREEMENT WITH SCJ ALLIANCE FOR THE HWY 99 REVITALIZATION PROJECT 13. CONTRACT WITH JCI JONES CHEMICALS FOR SODIUM HYPOCHLORITE FOR THE WASTEWATER TREATMENT PLANT 14. APPROVAL TO INITIATE LITIGATION 8. ACTION ITEMS 1. CODE AMENDMENT OF ECC 3.75 RELATED TO DOWNTOWN EDMONDS BID DELINQUENT ASSESSMENT FEES Edmonds City Council Approved Minutes December 17, 2019 Page 4 Economic Development/Community Services Director Patrick Doherty explained the Downtown Edmonds Business Improvement District (BID), otherwise known as the Edmonds Downtown Alliance or Ed!, was established by the City Council in 2013, pursuant to the provisions of 35.87A RCW which allows for creation of the BID via resolution. The BID encompasses most of the core of Downtown Edmonds, including retail, service, office -based and other businesses. Edmonds City Code (ECC) Title 3.75 contains the relevant provisions governing the establishment, purpose and levy of assessments, among other things, related to the BID. Mr. Doherty explained every for-profit business is levied an assessment, which is based on a two-tiered schedule of assessment categories: "open-door" businesses (retail, customer service, eating/drinking, etc.), and "by appointment/office-based" businesses (professional services, health services, etc.). The two categories have different assessment fee schedules, based on the square footage of the business, that range from $90 to $150 per quarter for "open-door businesses" to $30 to $90 per quarter for "by appointment/office-based" businesses. The City assesses these fees on a quarterly basis, although many businesses pay in advance for an entire year. Since the inception of the BID in 2013 there have been a small, but persistent minority of businesses (approximately 5-7%) that have become and/or remain delinquent in the payment of their BID assessment fees. There are approximately 35 members who are currently in arrears but several have only 2-4 payments outstanding. From the perspective of the Members' Advisory Board, as well as City staff, it is not fair to the faithful rate payers that the delinquent BID members continue in arrears on their assessments owed, thereby failing to fully contribute to the fund that provides for enhancements, amenities, marketing, etc., for the BID membership. The City Finance Department has pursued direct appeals to some of these businesses, as well as resorting to collection agencies for others. Unfortunately, for a small minority of businesses, these tactics have not produced satisfactory results, with delinquent fee totals persisting and adding up. Mr. Doherty explained staff and members of the Ed! Members' Advisory Board have met over the past year to discuss possible approaches to administering the assessment and collection of fees in a manner that could more effectively result in greater compliance. Research was conducted of other BIDS in the State. Many have similar predicaments, with few offering constructive or innovative approaches. Auburn as well as Snohomish have an innovative and effective approach of tying delinquent fees to the annual renewal of city business licenses. Auburn staff indicated that since that approach was implemented, they have had almost 100% compliance with fee assessment payment. For these reasons, staff proposed amendments to the relevant section of Title 3.75 related to delinquent payments (ECC 3.75.080) that would institute a similar approach. The amendments proposed in the attached ordinance would do the following: • Clarify what a delinquent fee is and when it is considered delinquent; • Clarify how the 12% per annum delinquency charge is calculated and applied; and • Add that an annual renewal of business's city business license may be suspended if that businesses has outstanding delinquent BID assessment fees, pursuant to the additional provisions of ECC 4.72 (general business license -related provisions), attached here for reference. Mr. Doherty displayed the amended code language: 3.75.080 Delinquent payments. If the assessment fee is not paid before or during the quarter to which it pertains, the fee is considered delinquent. Once delinquent, Iif the assessment is not paid within 60 days after its due date, a delinquency charge shall be added and calculated at an interest rate of 12 percent per annum of the due amount. The delinguency charge shall be applied to the total assessment fee deemed delinquent at a_rate of 12 percent per annum, calculated on a daily basis for the period the fee is Edmonds City Council Approved Minutes December 17, 2019 Page 5 delinquent until the delinquent fee is raid in full. The mayor or his designee is authorized to SLIspend the annual renewal of an estab]ishment's city business license until any outstand ing assessment fees, incl udingdel inquency charges, are paid in full, pursuant to ECC 4.72 Mr. Doherty explained ECC 4.72 is related to business licenses and states all businesses must comply fully with local and state ordinances and must be in compliance with local ordinances in order for the business license to be issues or renewed. That language theoretically would allow a businesses who is in arrears to have their license suspended. The addition of this language would make it clearer. ECC 4.72 requires a 10 day notice to the business, an appeal period and hearing before the hearing examiner. Mr. Doherty explained upon approval and implementation of the proposed code amendments, the City Finance Director will issue notice of a 60 -day amnesty period, during which any BID member with outstanding delinquent assessment fees will be granted a 50% discount on said delinquent fees. This amnesty period is intended to provide an incentive to bring every BID member into compliance as the new delinquent payment provisions are implemented. Councilmember Buckshnis asked about the number of delinquent businesses. Mr. Doherty said it changes daily but there are about 35 business out of 329 in some level of delinquency. About half of those only have 2-4 delinquent payments. Councilmember Buckshnis asked about the amount. Mr. Doherty answered it is $27,000 total; one business' delinquent payments total approximately $5,000, a couple are $2,000 to $3,000, there are several in the $200-300 range and the rest are lower. Councilmember Buckshnis commented some people do not want to participate in the BID and asked if there was a way to work with the delinquent businesses. Mr. Doherty said that was the purpose of the 60 amnesty period. Councilmember Teitzel said Edmonds is proud to be a business friendly community and he was concerned this may not look and feel business friendly. He asked when businesses were currently sent to collections. Mr. Doherty answered businesses are three quarters in arrears before they are sent to collections. The collection process will eventually yield on larger amounts and is actually more punitive due to the collection agency's hefty charges. While the proposed amendment may sound like it is not business friendly, offering amnesty is much less punitive than potentially ending up with 100% more than the delinquency amount due via a collection agency. Councilmember Teitzel asked if going into collections put a black mark on the business' credit history. Mr. Doherty said it depends on how public it is and the size. Councilmember Teitzel suggested rather than suspending a business license for non-payment, adding the unpaid fee to the business license fee and require the business to pay that amount to receive their business license. Mr. Doherty said in essence that is what the amendment does. For example, if the amendment is approved with the amnesty period and the business gets paid up to date; in the future, if the business became 1-2 quarters in arrears, they would receive a notice after 60 days and when a business license renewal is sought through the state (the state issues business licenses), the state would notify the City. The City would send a notice stating the license can be suspended if the delinquency is not paid and providing 10 days to respond and opportunity to appeal to the hearing examiner. He concluded it would be very similar, just two payments instead of one. Councilmember Tibbott referred to the ordinance language, suggesting in 3.75.080 Delinquent payments, "the mayor or designee" be changed to "the mayor or his/her designee." He asked what has been tried in the past besides this approach and collections. Mr. Doherty said there have been direct appeals by the Edmonds City Council Approved Minutes December 17, 2019 Page 6 Finance Department and BID board members. Those have resulted in payment on occasion but the issue is the small number of businesses, approximately 12, who are not interested in paying. Councilmember Tibbott said in addition to the 12 who are not interested in participating, a few business owners spoke tonight indicating they do participate but would rather not. He wondered how big that contingency was. He recalled the BID was formed at the bottom of an economic cycle when shared marketing may have been more desirable than it is now. He questioned whether the BID had it run its course and done its job and if there were other avenues that businesses were using successfully. Mr. Doherty referred to the BID's annual report that indicated their success in bringing over 100 spaces of free afterhours parking, a noticeable enhancement to downtown. Some businesses who operate during the daytime may not find that helpful but many other businesses do benefit from it. Other enhancement include marketing; the BID's marketing is very successful. It is difficult to determine whether the majority of businesses are doing so well that they do not benefit from the joint marketing. The BID does not market particular businesses but markets the Edmonds experience which has resonated well in the region. In terms of marketing the Edmonds experience, Councilmember Tibbott said he would like to go bigger and market the Edmonds experience to include downtown, the waterfront, neighborhood business zones, and Hwy 99 and wondered he wondered if it was time for the City to take a bigger role in those marketing efforts. Mr. Doherty said the City already takes a bigger role; the City's lodging tax dollars supplemented by with Snohomish County Development funds markets the entire Edmonds experience regionally via rack cards, Washington State Visitors Guide, radio ads, visual ads, and magazine placement as well as the website, VisitEdmonds.com, directs visitors to all the business districts and businesses. In September an audio clip was added in the ferry lines, EnjoyEdmonds.com, that describes downtown Edmonds. The BID's marketing is focused specifically on the walkable downtown experience. Councilmember Tibbott reiterated his question about whether the BID had run its course, particularly with the possibility of marketing the bigger area of Edmonds that incorporates all business zones. He wondered if it was time for the City or the Economic Development Commission to take the lead in evaluating the effectiveness of the BID for the 351 business owners. He did not support the amendment because, 1) there is more work to be done, 2) the new Council could take up the questions he raised, and 3) after more input from business owners, another way to collect fees or to handle these functions could be considered. Council President Fraley-Monillas recalled when the BID started, her assumption was the City would only help in the beginning and not take over the accounting. It has been six years and the City is still doing that. She did not support involving the City in taking away business licenses over a bill that was not a water or sewer bill. She acknowledged the BID was a great resource, has done some fabulous things, is a group of dedicated smart people but the City should not be involved with suspending business licenses for businesses not paying into the BID. She said it put an unfair onus on BID businesses who pay the fee versus businesses outside the BID such as in Westgate, Five Corners, Hwy 99, Perrinville, etc. who do not have to pay the BID assessment. She understood what the fee was for but she did not like the City holding a club for mandatory participation. She did not care for the City being involved in taking away people's livelihoods because they did not pay their BID bill and did not feel that was what the City should be doing. She agreed with Councilmember Tibbott's suggestion for a subgroup, the EDC, etc. Councilmember Buckshnis said the City has been the financial depository for the BID from the beginning. The Finance Committee discussed this and she agreed it was kind of a hammer. She suggested similar to the plastic ban, implementing a one year moratorium to figure things out. She asked if the 35 delinquent businesses were all service businesses. Mr. Doherty answered it was a mix of business types, of the 35 delinquent businesses, more than half had small delinquent amounts and approximately 12 had larger amounts. Councilmember Buckshnis agreed possibly more investigation needed to be done such as related to square footages. She summarized going from using a collection agency to taking the business license Edmonds City Council Approved Minutes December 17, 2019 Page 7 away was big hit and she did not think the City wanted to have that type of image. She suggested going back to the drawing board and thinking this through. Councilmember Mesaros commented he was at the Council Finance Committee meeting when this was discussed. He agreed with Mr. Doherty that getting a collection call was a terrible experience and a second and third call was not ideal; the intent was to stop that from happening. However, the comments made by business owners are worth listening to and reacting to. He suggested establishing a threshold for delinquency before restoring to suspending a business license. He recalled in another city that instituted this method, compliance rates skyrocketed. The Council listens to the public and tries to be responsive; this issue requires more study. He suggested presenting this issue to the BID Board to determine their reaction. Mr. Doherty said it had been presented to the BID Board. Councilmember Mesaros suggested having 1-2 BID board members speak to the Council next year. He agreed there was a problem; everybody needs to be responsible and their pay portion. There are a lot of things people don't like to pay but it is part of living in a society and a community. Mayor Earling summarized the Council appeared to favor no action tonight and to have their questions researched next year. He relayed his personal belief that the BID has been an incredible force for the community and he hoped there was a way to reach an amicable agreement. 2. ORDINANCE TO REPEAL ORDINANCE 3303 Finance Director Scott James relayed he recently learned there are multiple completing policies related to purchasing. The Council adopted Ordinance 3303 in 2000 approving a purchasing policy which was subsequently amended in 2009. The 2009 amendment was not done via an ordinance. The policy was amended again in 2011, and again in 2017. The 2017 amendment was adopted via a Council resolution. There are now significant conflicts between Ordinance. No. 3303 and current adopted policy: Purchasing arameters for goods and services/products Ordinance 3303 Most Recent Policies Director's authority Less than $5,000 Less than $50,000 3 telephone quotes required $5,000 to $15,000 $20,000 to $35,000 3 written quotations required $15,000 to $30,000 $35,000 to $50,000 Mayor's authority Less than $30,000 Less than $100,000 Approved on consent agenda $30,000 to $50,000 1 Nota licable Must be competitively bid Over $50,000 1 Over $100,000 Mr. James relayed the Finance Committee's policy goals: • Adopt Policy via Resolution • Repeal previous policies that were adopted by ordinance • Council approved Ordinance No. 4110 that repealed a finance policy • Tonight, we are asking Council to repeal Ordinance No. 3303 Observing that this was the last meeting of the year, Councilmember Teitzel asked the downside of not approving this tonight. Mr. James responded there are significant conflicts between Ordinance. No. 3303 and current adopted policy, there is a policy in ordinance which is a law and that takes precedence over subsequent resolution or policy. He supported repealing the ordinance as the City has been operating under the current policy for a number of years with no questions raised regarding the legitimacy until just recently. Councilmember Teitzel asked if the City had contracts coming up in January that would be affected if this ordinance remained in effect. Mr. James answered there were a number of items approved on the Consent Agenda that authorize purchasing and these conflict exist. Councilmember Teitzel summarized to avoid Edmonds City Council Approved Minutes December 17, 2019 Page 8 conflicts between the ordinance and policy, it would be important to pass an ordinance repealing Ordinance No. 3303. Mr. James agreed it would eliminate the conflict. He was uncertain what would happen if the auditor discovered this conflict, whether it would result in an audit finding. Councilmember Teitzel said the Council has received comments from citizens about Ordinance 3303 and the nexus between that and the Lighthouse contract. He read from Section 2 of Ordinance No. 3303, "The City Council reserves the right to approve deviations from said policy when, in its sole discretion, the City Council deems it appropriate..." He asked if that language suggests the City Council has wide latitude in determining how to manage the contract with the city attorney. City Attorney Jeff Taraday said he could not answer the question because Councilmember Teitzel had referenced his contract as part of the question. Councilmember Teitzel asked if that provision gave the Council fairly wide latitude. Mr. Taraday answered in general any time the purchasing policies have language to the effect that the Council can deviate from the policy as chooses, that means the Council can deviate from the policy as it chooses. At a very high level and not addressing the Lighthouse contract, which is a City Council issue by code, but regarding all the other contracts that this policy applies to, these policies are intended to guide the administration in the execution of contracts. Under state law, the City Council holds all the contracting power; the administration has zero contracting power. The only way the City Council can convey or delegate contracting authority to the administration is through adoption of purchasing policies. The Council delegates to the administration and the administration follows those instructions. Mr. Taraday said two sets of instructions can create a problem. If the City Council doesn't want to act tonight, it might be helpful to the administration to know which set of the instructions they are supposed to follow. In the absence of that clear direction, it could create a problem. There could be an argument that an ordinance trumps a resolution but it is also very clear that no one has been following Ordinance No. 3303 for about a decade. Based on the City's past practice, it would seem somewhat absurd to follow a purchasing policy that hasn't been followed since 2009. Regardless of what the City Council does tonight, the administration would benefit from clear direction from the Council. Councilmember Teitzel observed there are conflict between the policy and the ordinance and knowing there are important contracts in January for which the Council needs to provide clear direction to the administration, he supported repealing the Ordinance No. 3303. Council President Fraley-Monillas asked how long the policy had been in conflict. Mr. James answered Ordinance No. 3303 was adopted in 2000. The most recent policy was brought to Council via resolution in 2017. Council President Fraley-Monillas asked how long he had known there was a conflict. Mr. James answered the last week or two. Council President Fraley-Monillas clarified he did not know before that that there was a conflict. Mr. James answered he did not. Council President Fraley-Monillas asked what was the normal procedure for repealing an ordinance. Mr. Taraday answered adopting an ordinance to repeal what the Council wants to repeal. Council President Fraley-Monillas asked if a public hearing was involved to repeal an ordinance. Mr. Taraday said he saw an email to that effect today but did not agree with the analysis as it was not required by RCW. Council President Fraley-Monillas asked if an ordinance required a public hearing. Mr. Taraday answered many ordinances are adopted without a public hearing and he was highly confident that a public hearing was not required to repeal the ordinance. He looked at the RCW cited in today's email and did not find it applicable to this situation. Councilmember Buckshnis recalled ordinances that had appealed in the past including how meetings were held, finance policies that were not being followed, etc. Approximately ten days ago, a citizen brought up Ordinance 3303, it is outdated 19 years. If the Council upheld Ordinance 3303, it could open the City to Edmonds City Council Approved Minutes December 17, 2019 Page 9 exposure from 2000 on. The ordinance is outdated and subsequent policies have been put in place that have been followed so there is no reason to retain Ordinance 3303. The City has over 4,000 ordinances; -she was certain there were others written in the Ogden Murphy era that needed to be repealed and the intent is to have someone review the ordinances to determine if any outdated ordinances need to be repealed. She supported repealing Ordinance No. 3303. COUNCILMEMBER JOHNSON MOVED, SECONDED BY COUNCILMEMBER TEITZEL, TO REPEAL ORDINANCE NO. 3303 WITH NEW ORDINANCE NO. 4171. MOTION CARRIED (5-1), COUNCIL PRESIDENT FRALEY-MONILLAS VOTING NO. 9. PRESENTATION 1. SUMMARY RESULTS OF COMPARATOR CITY SURVEY REGARDING ATTORNEY SERVICES Councilmember Teitzel explained on October 22, 2019, the City Council unanimously approved a list of survey questions as well as a list of cities to be contacted as part of the second phase of the city attorney analysis. The first phase, completed earlier this year, was an internal attorney client satisfaction survey with Lighthouse's legal services. The results of that survey were very satisfactory and generally positive. The second question to be answered was whether the City was getting good value for the fees paid to Lighthouse. As he reported previously, most recently in November, the amount the City paid Lighthouse for 2016-2018 was $165/hour which led to the assumption the City was getting good value; the purpose of contacting external cities was to confirm that assumption. Councilmember Teitzel explained the list of questions approved by the Council was very extensive and was a massive effort by the ten cities that were contacted in the timeframe requested. The Council approved the survey questions on October 22nd which left the month of November to obtain the information. A lot of information has been received and Councilmember Mesaros and he are committed to updating the record via memo to the City Council as more information is received. The Council Legislative Assistant Maureen Judge has a binder with the survey and additional data tabbed by city as well as all the email exchanges available for review in the Council office. Councilmember Teitzel said the five cities he contacted for the survey have contracted city attorney services: Issaquah, Lynnwood, Mountlake Terrace, Mukilteo and Tukwila. Councilmember Mesaros contacted five cities with inhouse city attorneys: Des Moines, Bothell, Mercer Island, Kirkland and Shoreline. The most important information they sought was what do other cities pay their city attorneys on a dollar per hour basis versus what Edmonds pays Lighthouse. He corrected the amount in the packet for direct annual city attorney expenses billed from Lighthouse to Edmonds for 2019 from $553,433 to $483,163. He provided the following information: • Average hourly billing by year billed to Edmonds by Lighthouse (data provided by Finance Director Scott James), dividing Lighthouse annual billing by annual hours worked by Lighthouse on Edmonds issues: 2016: $174.27, 2017: $188.24, 2018: $143.09, 2019: $176.24 (note: 2019 data is through October 2019) • Most cities were able to provide annual billing data but unable due to time constraints to provide actual billed hour information to enable an accurate annual $/hour calculation (with Mountlake Terrace being the exception). o Mountlake Terrace actual city attorney average annual $/hour: 2016: $216.86, 2017: $240.90, 2018: $260.42 • All five cities provided current city attorney contracts showing current billing arrangements, as follows: o Mountlake Terrace: $232 -$245/hour(depending on issue)• o Mukilteo: Senior attorneys: $232/hour, associate attorneys: $215/hour- Edmonds 215/hour Edmonds City Council Approved Minutes December 17, 2019 Page 10 o Lynnwood: Senior attorneys: $225-$260/hour, Associate attorneys: $175-$180/hour• o Tukwila: Senior attorneys: $280-$320/hour, Associate attorneys: $145-$185/hour.• o Issaquah: Senior attorneys: $280/hour, Associate attorneys: $220/hour.• ► Key conclusion: Lighthouse's average annual $/hour billed to Edmonds is substantially lower than the contractual averages of these five comparator cities and on that basis, the City is getting a fair value for the amount paid to Lighthouse. • All five cities have a very informal city attorney evaluation process and expressed interest in Edmonds' attorney client satisfaction survey Councilmember Mesaros reported the cities he contacted that have inhouse city attorney services include Des Moines, Bothell, Mercer Island, Kirkland and Shoreline. Those five cities have city managers and inhouse legal counsel. He received a good initial response from Bothell, Shoreline and Des Moines. As an incentive to respond, Councilmember Teitzel and he offered to provide a summary report of their findings so the other cities could see how they compare. He received information from Bothell and Shoreline, but was not able to obtain detailed information from Des Moines. Mercer Island attempted to call him on one occasion, he called them six times and Kirkland seven times without response. He contacted Des Moines again last week and they promised to provide data but it has not yet been received. He will follow up with them and supplement the information in the packet. He provided the following information, noting none of the cities he contacted track hours for their inhouse city attorney • Lighthouse cost in 2020: $598,596 • Bothell: Two city attorney staff members 0 2018: $410,000 salaries and benefits 0 2016: Total cost- $910,000 0 2017: Total cost - $906,000 0 2018: Total cost - $434,000 (no explanation provided by Bothell) • Shoreline: Three staff (city attorney, assistant city attorney and legal assistant) 0 2018: $642,000 salary and benefits 0 2018: Total cost: $817,792 + Key conclusion: with the exception of one year for Bothell, costs typically exceed what Edmonds pays Lighthouse Councilmember Teitzel relayed Mountlake Terrace's City Manager asked that he clarify the billed expense data shown on page 336 of the packet: billed expense in 2016 was $297,749, $334,612 in 2017 and $359,897 in 2018. The amount increased dramatically in 2018 because Mountlake Terrace has a lot of legal work associated with their new town center as well as Sound Transit light rail work. Councilmember Tibbott asked about legal fees Edmonds has in addition to Lighthouse for outside counsel. Councilmember Mesaros said he did not have that information tonight but recalled it was minimal. The cities he talked with are members of WCIA who picks up some liability lawsuits, similar to Edmonds. Councilmember Mesaros said Edmonds sometimes hires external services for labor contracts. Councilmember Tibbott asked if the additional amount was under $50,000. Councilmember Mesaros said that would be an approximate guess. Councilmember Tibbott said that information would be helpful. Councilmember Buckshnis commented the information in the packet was very readable. She observed the cities with inhouse attorneys all have city managers so the mayor has no power over the city attorney. Councilmember Mesaros agreed in those cities, the city attorney reports to the city manager and the city manager does the evaluation and the City Council has no say in the evaluation. Councilmember Buckshnis pointed out the city manager is managed by the City Council. She asked if there were any cities with inhouse counsel that had strong mayors. Councilmember Mesaros answered no, they all had city managers. Councilmember Buckshnis recalled the Wayne golf course issue could account for the increase in Bothell's legal fees. She expressed her appreciation for Councilmembers Mesaros and Teitzel's work. Edmonds City Council Approved Minutes December 17, 2019 Page 11 Councilmember Mesaros said Bothell's population is 45,000 and Shoreline's is 55,000, a -little larger than Edmonds but Bothell considers Edmonds as a comparator city. For Councilmember Buckshnis, Councilmember Mesaros relayed one of the questions was whether the city directly employs police officers; Bothell does but Shoreline contracts with the King County Sheriff. Neither city has their own firefighters, they contract for fire and emergency services. 10. MAYOR'S COMMENTS Mayor Earling advised Police Chief Al Compaan announced today he is retiring at the end of the year. Chief Compaan has been with the City for over 41 years and has been considering retiring for the last few years. He and Mayor -elect Nelson agreed with Chief Compaan leaving at the end of year, Assistant Chief Lawless would be appointed Acting Chief. ACOP Lawless is comfortable and excited about the appointment. Mayor Earling thanked the many members of the City Council over the last 8 years. Though they may not agree, Councilmembers past and present have the best interest of the City in mind. Mayor Earling wished everyone a Merry Christmas. He thanked Student Representative Zach Bauder for his faithful attendance and doing a commendable job. 11. COUNCIL COMMENTS Councilmember Teitzel wished Student Representative Bauder well in his future endeavors. Councilmember Teitzel said although he would prefer not to make these comments on the last meeting of his term on the Edmonds City Council, timing dictates that he make them. He read the following statement: On December 12, a guest view article authored by our Council President appeared in the Edmonds Beacon. The article is very disappointing and unbecoming of a Council President. While our Council President is entitled to express an opinion, it is entirely inappropriate to second guess — in her role as Council President — a 5-2 majority vote on an issue by five seasoned, professional Councilmembers. As all Councilmembers have been reminded, a majority vote is final and it is not appropriate to attempt to undermine the majority after the fact. Further, the article is full of innuendo, misinformation and falsehoods designed, apparently, to influence public opinion against Council. For instance, our Council President states: "I have spoken to the Edmonds City directors who offered to help the two Councilmembers with their research. The two Councilmembers declined help from city staff on this project — a project normally completed by the HR department with the assistance of the Finance Department." This statement is entirely false. While our Council President doesn't reveal the names of Directors she references (but by her statement suggests she spoke with multiple directors), both HR director Jessica Neill-Hoyson and Finance director Scott James were directly involved in helping Councilmember Mesaros and me design the survey questions to pose to other cities. These are the survey questions Council unanimously approved on October 22. Additionally, our HR director received an anonymous complaint that the survey process for external cities somehow represented a conflict of interest. After meeting with me and carefully reviewing the process and proposed questions, Ms. Neill- Hoyson concluded there was no conflict of interest. These two directors were very helpful in this process, and no other directors offered to help with the survey. To falsely suggest Councilmember Mesaros and I refused help implies we acted inappropriately in agreeing to lead the effort to collect important information for Council's consideration — an effort Council unanimously approved. This is, at best, insulting. Further, our Council President states the majority of Edmonds Councilmembers "failed our city" in conducting proper due diligence prior to approving the proposed Lighthouse contract. This is a very Edmonds City Council Approved Minutes December 17, 2019 Page 12 serious allegation for a Council President to make about her peers. And it is incorrect. Our Council is committed to ensuring Edmonds citizens receive the highest quality services at the best available cost. Regarding our nearly decade-long relationship with Lighthouse, it is entirely appropriate to review the quality and cost elements of that relationship periodically. The key question for Council to consider in this assessment is whether there is a quality and/or cost problem with our current city attorney. The quality element of that question was answered earlier this year by the detailed internal client survey regarding Lighthouse's service —the great majority of the respondents were very satisfied with the legal support provided by Lighthouse. Additionally, I reported to Council several times - most recently on November 26 —that the average cost to Edmonds of Lighthouse's services over the 2016 through 2018 timeframe was $165/hour (based on information provided by our Finance Director and dividing total fees paid by Edmonds to Lighthouse by total hours worked by Lighthouse on Edmonds issues). That average hourly rate is far less than prevailing hourly attorney fees in our area — a fact the majority on Council understood when voting on the Lighthouse contract renewal. The external cities comparator survey results presented earlier this evening confirm the good value we are and have been receiving under our relationship with Lighthouse. Good government process should always start with a determination of whether or not a problem exists, and then develop a set of facts and data to help resolve the problem. Regarding Edmonds' relationship with Lighthouse, from a quality and value perspective, a problem does not appear to exist at this time. However, our Council President goes on to state "my findings from other comparator cities were that for the cost of our current contract attorneys we could hire two seasoned, full-time in-house municipal attorneys plus a paralegal for less than the current contract cost." This statement is highly misleading and suggests two attorneys could handle the same workload and range of issues for Edmonds as Lighthouse with its staff of eight attorneys. Clearly, this statement is intended to lead the public into believing the majority of Council is derelict in its duties by not hiring in-house counsel at a savings to taxpayers. However, if the two in-house attorneys are not able to cover the full range and breadth of Edmonds legal issues without bringing in contracted legal help, the cost of moving to an in-house attorney arrangement could cost Edmonds taxpayers substantially more. A prudent value assessment needs to consider the net cost to our city of any city attorney arrangement. Our Council President fails to mention this. Finally, even though Council (including our Council President) unanimously approved on October 22 the range of survey questions and list of ten cities to be contacted, she states in her letter "I have hopes that this incident was an isolated event and that we can do better for the citizens of Edmonds in the future." It is clear she is implying the majority on Council acted contrary to the best interests of Edmonds citizens, and that the two Councilmembers in the minority were the only ones to have the best interests of our constituents at heart. This is insulting to the majority. In fact, the five Councilmembers in the majority are fully committed to working to support the best interests of the city and to make policy decisions based on the best set of facts and data available to us. For a sitting Council President to suggest otherwise is an affront to Councilmembers and the public. Going forward, it is my hope the new Council President is much more circumspect is written and verbal comments, bases arguments on facts and data, and refrains from using falsehoods and innuendo in attempting to sway public opinion. Councilmember Teitzel said it has been an honor and privilege to serve Edmonds citizens for the past four years and to work with Port and others. It has been a great experience and he hoped he had been able to move the needle in a positive direction for the City. He looked forward to staying engaged in the future. He wished everyone a very happy and healthy 2020. Edmonds City Council Approved Minutes December 17, 2019 Page 13 Councilmember Mesaros said he was appointed to the City Council on March 11, 2014 on the 59t" ballot. He recalled Port Commissioner Preston's comment that it would be nice to have the new Councilmember appointed unanimously and looked forward to reading that in My Edmonds News. In the nearly six years he has served on the Council, he found that the truth matters, that facts matter and when Councilmembers concentrate on what the facts truly are, they make better decisions. There is a tremendous amount of innuendo at the national level where people take a snippet of the truth and pass it on as if it were the truth. He hoped the new Councilmembers and new Mayor will concentrate on getting the facts and truth correct and that there is agreement on the facts. Once the facts are determined, it's acceptable for people to take a different path based on the facts. Councilmember Mesaros referred to Councilmember Teitzel's comments and the article in the Edmonds Beacon, relaying he felt there was an attempt to distort the facts which is unfortunate and should not be allowed to happen. That can be stopped by citizens, holding elected officials accountable. He recalled several occasions where he received emails and phone calls where he was held accountable. Citizens will get the City Council they deserve via own participation. An example of that happened this evening when BID members offered their opinion and the Council chose not to take action and send the matter back to staff. Councilmember Mesaros was sorry hear of Chief Compaan plans to retire, relaying he had gotten to know him serving on SNOCOM and Sno911. He was glad to hear Jim Lawless, who chairs the Police TEC Committee for Sno911, would be appointed Acting Chief. Edmonds is well represented in emergency services. Councilmember Mesaros said he will miss being on City Council some of the days, but not every day. Councilmember Johnson thanked Mayor Earling and Councilmembers for their work on the Council and looked forward to welcoming the new Councilmembers. She wished everyone a very Merry Christmas, a Happy New Year and good health. Council President Fraley-Monillas thanked Mayor Earling for his years of service to the City, commenting before being elected Mayor, he served on the City Council for 12 years as well as other elected positions between the City Council and Mayor. She commented they do not always agree but that is a good thing as it ensures everything is kept in check. Council President Fraley-Monillas said she stands by the truth in her statement and what two directors told her. If any citizens want to speak to her about Councilmember Teitzel's allegations, she would be happy to meet with them to discuss her statement. She will miss the joy in Councilmember Tibbott's eyes when he comes to Council always in a good mood. She will not miss the mansplaining and bullying that occurs and has occurred on the Council for the last four years. It has been a challenge for a woman to be part of the Council because it's clear assertive women do not fit in well and if they can't make it work, they make it up as they go. Councilmember Tibbott said it has been a tremendous privilege to serve on the City Council; four years have gone fast but sometimes very slow. He has enjoyed most of citizen interaction before and after meetings and on committees and commissions, commenting that brings the job to life. Councilmembers may disagree but they all want to do their best for the City. He learned a lot serving on the Council, realizing citizens may watch and wonder what the Council is doing when making these decisions. He relayed often the information the Council has goes back months or years and Councilmembers brings that institutional knowledge to their decisions. Edmonds City Council Approved Minutes December 17, 2019 Page 14 For the new Councilmembers, Councilmember Tibbott said go get `em; he was excited for them and their learning process. He was thankful for the support he received from Mayor Earling, especially during his first year on Council when he often went to his office asking about the different angles being considered. Mayor Earling never pushed or tried to make him decide his way but gave him good thinking points. He hoped future Councilmembers would have the same level of support from the Mayor. He acknowledged the great working relationship he has with directors, commenting he has spent the most time with Phil Williams, Shane Hope, Rob English and Patrick Doherty. He appreciated all the directors, will miss their time together and intends to stay involved. Councilmember Buckshnis thanked staff and directors for their help over the year. She remembered the first meeting with Mayor Earling and instances when they have agreed to disagree and be respectful. She thanked Councilmember Teitzel, her policy wonk and fellow financial geek, relaying her appreciation for their discussions with Scott James. She thanked Councilmember Mesaros for expanding her horizons, making her a global thinker and making her think outside the box, a wonderful trait that the Council needed. To Councilmember Tibbott, she will miss his calmness and the smile in his eyes. She gave a shout out to new Judge Anna Alexander who gave her a shero award for being calm when helping with her campaign. Councilmember Buckshnis said she generally prefers to keep disputes out of the public's eye. However, last week at an agenda meeting with City Clerk Scott Passey, Mayor Earling, Council Legislative Assistant Maureen Judge and Council President Fraley-Monillas, Mayor Earling asked why two agenda items had been pulled. Since both agenda items had come to the Finance Committee, she offered to get the four votes to get them on the agenda. Council President exploded, pointed her finger at her, stomped her foot and called her a name and said you go and get your [dirty word] votes. Councilmember Buckshnis said she told Council President Fraley-Monillas she was sorry she was having a bad day and Council President Fraley- Monillas repeated her actions, pointing her finger, calling her a name and said go get your votes. This went on 3-4 times where she would say something and Council President Fraley-Monillas would point her finger. Councilmember Buckshnis said this was not the first time she had been treated this way but it was the first time it had occurred publicly in front of staff and citizens. It was inappropriate and felt she was mistreated like other Councilmembers have been. Although she tries to take the high road, she felt next year would be problematic with a new grudge on her back. No Councilmember should ever be treated that way. She was thoroughly mind boggled that it happened in front of staff and the Council's legislative assistant. She was sorry she had to bring it up in public, but everyone is human, everyone has disagreements but they do not deserve finger pointing or name calling. She hoped in the new year with a new Council everyone will calm down and learn to interact in a professional manner. She wished everyone a Happy Holiday. 12. CONVENE IN EXECUTIVE SESSION REGARDING PENDING OR POTENTIAL LITIGATION PER RCW 42.30.110(1)-(i) This item was not needed. 13. RECONVENE IN OPEN SESSION. POTENTIAL ACTION AS A RESULT OF MEETING IN EXECUTIVE SESSION This item was not needed. 14. ADJOURN With no further business, the Council meeting was adjourned at 8:50 p.m. MICH 1- NELSON, MAYOR SCOTT PASSEY, CITYRK Edmonds City Council Approved Minutes December 17, 2019 Page 15 r