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Cmd081120EDMONDS CITY COUNCIL VIRTUAL ONLINE MEETING COUNCIL COMMITTEE APPROVED MINUTES August 11, 2020 ELECTED OFFICIALS PRESENT Mike Nelson, Mayor Adrienne Fraley-Monillas, Council President Kristiana Johnson, Councilmember Luke Distelhorst, Councilmember Diane Buckshnis, Councilmember Vivian Olson, Councilmember Susan Paine, Councilmember Laura Johnson, Councilmember 1. CALL TO Oft[) r It STAFF PRESENT Phil Williams, Public Works Director Jessica Neill Hoyson, HR Director Pamela Randolph, Treatment Plant Mgr. Rob English, City Engineer Jeff Taraday, City Attorney Scott Passey, City Clerk The Edmonds City Council virtual online meeting was called to order at 7:02 p.m. by Mayor Nelson. COUNCIL PRESIDENT FRALEY-MONILLAS MOVED, SECONDED BY COUNCILMEMBER L. JOHNSON, TO ADD THE FLAG SALUTE AND THE LAND ACKNOWLEDGEMENT TO THE AGENDA. MOTION CARRIED UNANIMOUSLY. 2. FLAG SALUTE The meeting was opened with the flag salute. 3. 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." A brief discussion occurred regarding items on the agenda of this meeting and on the special meeting that will Follow. Councilmember Buckshnis raised a point of order regarding the fifth item on the agenda. City Clerk Scott Passey advised the fifth item is an action item on the agenda of the special meeting that follows the committee meeting. 4. COMMITTEE OF THE WHOLE Edmonds City Council Approved Minutes August 11, 2020 Page 1 1. PRESENTATION OF A SUPPLEMENTAL AGREEMENT WITH OSBORN CONSULTING, INC. FOR THE PHASE 2 & 3 STORM UTILITY REPLACEMENT PROJECT City Engineer Rob English explained this is a supplemental agreement for design work related to the 2021 and 2022 stormwater replacement program. Osborn Consulting was selected earlier this year based on their qualifications and experience through the RFQ process. Staff has identified five locations where improvements will be made, all have the same common issue, pipe that is beginning to fail or is in very poor condition. In three of the five sites, pipe will be replaced as well as potentially adding capacity. Due to COVID-19 related restrictions that prevent staff bringing this contract to Council, a $97,000 contract was initiated to do the initial site surveys and data collection for the five sites. This a supplemental agreement to take those five sites to a 30% design level which includes generating estimates from which 2-3 of the 5 sites will be selected to proceed to final design and construction documents. Those sites will be advertised and built in 2021 and the remaining sites carried forward to 2022 for construction. He reviewed the seven tasks in the supplement: Task 1: Project Management Task 2: Data collection and review Task 3: Project planning and preliminary design Task 4: Permitting support Task 5: Construction documents Task 6: Bid and construction support (2021) Task 7: Management reserve and field reserve The total supplemental amount is $413,291 which includes an $80,000k management reserve. The design effort will be funded by the Stormwater Utility Replacement Fund. Staffs recommendation is to move this item to next week's Consent Agenda for approval. Councilmember K. Johnson referred to Task 7 and reference to Tasks 9.1 and 9.2 and Tasks l through 8 in the agreement and questioned whether this was taken from another contract because it is not numerically logical. Mr. English agreed it should be Task 7.1 and Task 7.2 and Tasks 1 through 7. That will be corrected. Councilmember K. Johnson referred to the field reserve, noting she was familiar with the concept of a management reserve, but did not recall seeing a field reserve in any other Public Works contracts. Mr. English answered this is primarily related the capacity of the Public Works crews. Potholing existing facilities to identify any buried conflicts will be a big effort. At times, the Public Works crews have done that work, but they have their own operational workload so if they are too busy, a company will be hired via this contract to perform that work. That section also identifies additional survey work or geotechnical investigation if there are issues related to the bioretention facilities proposed at a couple of sites where additional investigation may be needed. Councilmember K. Johnson asked if that was work that staff would like to have done or was it something the contractor proposed. Mr. English answered this was added as a management reserve; the work would only be done and that fee used if the City authorized it. Whether the consultant performs the work or the Public Works crew does the work depends on the Public Works crews' availability. Councilmember K. Johnson acknowledged with replacement, what will be encountered is unknown until field work begins. Councilmember Buckshnis said she had same question with the numbering. On packet page 4, the contract refers to $97,795 in paragraph 2A, but she was unable to find paragraph 2A. The management reserve is $80,000 and the total amount is $413,291. She asked what the $97,795 represents. Mr. English explained that was the initial contract in May to perform the survey and data collection. Staff had planned to bring the entire contract to Council in May but due to restrictions that allowed only necessary and routine items be presented to Council, a contract was executed for $97,795 to perform the initial work. Edmonds City Council Approved Minutes August 11, 2020 Page 2 This is a supplement agreement to that $97,795 for $413,291. Councilmember Buckshnis observed the reference to paragraph 2A was the original contract which was not included in the packet. COUNCILMEMBER PAINE MOVED, SECONDED BY COUNCILMEMBER OLSON, TO PUT THE SUPPLEMENTAL AGREEMENT WITH OSBORN CONSULTING, INC. FOR THE PHASE 2 & 3 STORM UTILITY REPLACEMENT PROJECT ON THE CONSENT AGENDA FOR NEXT WEEK. MOTION CARRIED UNANIMOUSLY. 2. PROPOSAL TO REALLOCATE POSITIONS AT THE WWTP TO SUPPORT THE CURRENT/FUTURE NEEDS Public Works Director Phil Williams explained issues with staffing at the WWTP have existed for at least five years when employees left including the plant superintendent, the second management employee of the WWTP, who retired. Despite numerous efforts over about three years, the right candidate has not been found so the position has remained vacant. Last year a former general manager of the Ronald Wastewater District was hired under an employment contract as a program administrator. This proposal includes extending that position into 2021 in the draft budget. He displayed the existing organizational chart, explaining historically there was a plant manager, plant supervisor, operations lead and a maintenance lead. At this time, the WWTP does not have a plant supervisor, an operations lead or a maintenance which makes it difficult on Treatment Plant Manager Pamela Randolph to maintain management functions. He displayed and reviewed a revised organization chart that reflects the proposed realignment at the WWTP and would: • Reallocate the WWTP Plant Supervisor (NR13) to Program Administrator (NR10 —budget at top step) • Continue to fund the OIT, which has been authorized but not filled due to the hiring freeze (F, G or K depending on qualifications budget for K step 1) • Reallocate the Operations Lead to a Chief Operator (anticipated to be Teamsters M + 5% or a new N—which is currently not in in the contract budget M top step) • Reallocate the Sr. Maintenance Mechanic (Teamsters K) to WWTP Instrument /Electrical Technician (Teamsters L Budget at K step 2) Mr. Williams displayed the WWTP chief operator draft job description, explaining in addition to operator duties, this position would assign, coordinate and oversee the work of operations and maintenance. He pointed out the job description includes a percentage of the duties for the position. He referenced the required license- and certifications including a WWTP Operator Group IV License required withinl year, WWTP Group III at the time of hire and due to the existing incinerator, an Incinerator Operator License within 6 months of hire may be required. Mr. Williams displayed a page from the 2020 Sewer Fund budget, a total of 17 authorized FTEs $1,418,783. With the proposed changes, the budget for 2021 will be $1,442,091, an increase of $23,308 (does not include any COLA). Mr. Williams explained the chief operator would be a Teamsters union position, not a management position, so it will need to be negotiated with the Teamsters before it can be implemented. He was seeking Council approval of job description. Council President Fraley-Monillas asked for clarification, the position will be negotiated once the Council approved the job description. Mr. Williams agreed. Council President Fraley-Monillas said she reviewed the job description and although she did not completely understand all the nuances of the position, it makes sense since the City has been unable to hire a plant superintendent. She asked for clarification Edmonds City Council Approved Minutes August 11, 2020 Page 3 regard the pay grade which states N+5%. Mr. Williams said it could go to the next tier in Teamsters; it will be at least 5% but will be negotiated. Councilmember Buckshnis questioned whether the cost would be more than $23,000 and if that amount was due to the two unfilled positions. Mr. Williams answered there are salary savings and increases, the $23,000 is an estimate of the net number. Councilmember Buckshnis asked if the chief operator was included in the $1.442 million 2021 budget. Mr. Williams explained two lead positions and the plant supervisor were eliminated and a chief operator was added. Councilmember Buckshnis said the new hierarchy looks great. She asked if the new number included the two unfilled positions. Mr. Williams it does. There are 17 people working at WWTP in 2020 and 17 after the new org chart is implemented. It is not an increase in staff but results in a minimal increase in labor costs. Councilmember Buckshnis asked if all the staff will transition into the gasification project. Mr. Williams explained that ongoing $26 million project is a completely different technology than the staff is used to 1 1 A 1 I_� ._._ 1 � 4 If �4 which will be pretty highly automated. A nitrogen removal pilot Project began yesterday to see ii it can help meet the state's expectations on nitrogen discharge which will take quite a bit of time over the next year. Then the WWTP will see what the permit looks like and there may be other projects to comply with it. There are a lot of changes occurring at the WWTP; the goal is to align staffing and skills with the near and mid-term future. Councilmember Buckshnis asked if more or less staff would be needed due to automation. Mr. Williams answered he did not necessarily expect automation to have a dramatic effect on the annual labor hours, but people can do much higher level and more important work and take some of the drudgery and manual labor out via the right control equipment which reduces risk. People who are required to watch a gauge all day may look away, but computers never take their eyes off the ball so the plant operates more evenly and predictably which reduces risk. Councilmember Paine asked if the new chief operator position was a typical span of control with 11 staff reporting. Mr. Williams answered it was not excessive considering the duties. In the proposed structure, there will be only one management staff, Ms. Randolph. The chief operator position will not have straight -up supervisory duties; they will be assigning work, but will not be evaluating, recommending discipline or engaging in that type of higher level supervisory duties. They will work with the plant manager to offer observations and information, but directly dealing with employees based on the existing labor contract will be the responsibility of the plant manager. HR Director Jessica Neill Hoyson clarified the typical process would be for the Council committee to consider the job description and advise staff to notify the union of the new job description and bargain the job description or impacts/changes of the structure and then return to Council with the final job description or if the job description was significantly changed during the bargaining process, bring it back to committee for review. COUNCIL PRESIDENT FRALEY-MONILLAS MOVED, SECONDED BY COUNCILMEMBER L. JOHNSON, TO MOVE THIS ON TO ADMINISTRATION TO NOTIFY THE UNION AND THEN HAVE IT -ON CONSENT NEXT WEEK. - Councilmember K. Johnson pointed out Ms. Neill Hoyson said it needed to be presented to the union before it was approved on Consent. Ms. Neill Hoyson agreed, and did not anticipate that could be accomplished by next week. She suggested having it on Consent once done the union process is complete. COUNCIL PRESIDENT FRALEY-MONILLAS WITHDREW THE MOTION. Edmonds City Council Approved Minutes August 11, 2020 Page 4 COUNCIL PRESIDENT FRALEY-MONILLAS MOVED, SECONDED BY COUNCILMEMBER OLSON, THAT THIS GO TO THE ADMINISTRATION AT THIS POINT AND COME BACK TO COUNCIL ON A CONSENT AGENDA AS SOON AS THEY'RE ABLE TO MOVE IT FORWARD. MOTION CARRIED UNANIMOUSLY. JOB ORDER CONTRACTING — PURCHASING POLICY Mr. Williams explained this is an opportunity to add a tool to the procurement toolbox by making a change in the purchasing policy. Job Order Contracting (JOC) did not exist in Washington until last year. • Definition of JOC o 'Existing Washington State RCW 39.10.420 to RCW 39.10.460 o Job order contract" means a contract in which the contractor agrees to a fixed period, indefinite quantity delivery order contract which provides for the use of negotiated, definitive work orders for public works Procurement Options o Design — Bid — Build o Design — Build o General Contractor/Construction Manager o Job Order Contracting o Small Works Roster General reasons to choose JOC o Multiple projects that typically range from $25,000 to $350,000 in value o Total dollar volume of work is less than $4 million per year o Limited owner staff availability for proper implementation of other methods o Urgency for project completion Unique aspects of JOC o The owner can stop the JOC contract at any time o Procurement of JOC Contractor = the best competitive coefficient (no hidden costs) o Partnership with JOC Contractor leads to trust and a familiarity with owner's unique needs o Constant value engineering provides best value practices o Unit Price Book = best average cost o JOC eliminates change order philosophy since change orders are based on Unit Price Book What is JOC's construction niche? o Fast response for small ($350,000 or less) repair, renovation, remodel and alteration projects o Services provided on an on -call basis o Lump -sum fixed price for each work order o Owner negotiates (consensus) the scope of work o Cost coefficient is established upfront Typical projects o Infrastructure upgrade projects (usually multi -discipline) • Bathroom renovation ■ ADA Compliance renovation projects • Communication/security systems installations ■ Classroom renovations ■ Parks and playfields renovation projects Some benefits of JOC for owners o Reduced lead time — no need to plan or prepare bid documents and drawings for each work order o Eliminated bid time o Expedited engineering, since JOC projects services for construction of projects usually require no architectural or engineering Edmonds City Council Approved Minutes August 11, 2020 Page 5 o Joint scoping and re-scoping as needed • Increased opportunities for small and disadvantages businesses o JOC furnishes bonding for most subcontractors o JOC completes "red tape" requirements o JOC uses best value bid analysis for subcontractors & partners with subcontractors o JOC recruits small and disadvantaged businesses o JOC coaches subcontractors in all aspects of quality work, safety and project management (as needed) o JOC pays subcontractors promptly, typically subcontractor payment is not tied to JOC contractor's payment from the owner, and no retainage is held. • Diagram mapping the JOC process (scoping phase and proposal phase) ■ Scope of Work Example 1 o Demo / dispose of 3 existing lights. Reuse existing circuit for new lights. o Remove & replace 2 existing I VAC grilles o Install gyp ceiling at 8' 8" with 4 new surface mounted explosion proof lights. o Relocate existing smoke detector to new ceiling o Demo CMU for 42" opening min. (exist opening +/- 36") o Demo & dispose of existing metal partitions and replace with new 4" CMU covered completely with ceramic tile, with one block scupper at bottom of each o Remove and reinstall existing 3 urinals and 2 commodes o Demo ceramic tile, floors and walls, typ. and walls, typ. (exist ceramic on walls is approx. 8'- 0" high) Mr. Williams summarized he was seeking input from the Council whether this sounded like a good idea; it does to staff. Other cities who are using it see a lot of value in it. The City could, by changing its purchasing policies, seek out a contractor to bring a proposal to Council for approval. Councilmember K. Johnson referred to the slide regarding "What is the JOC's construction niche?" and the statement of "fast response for small ($350,000 or less) projects" which caused her to think JOC was for small projects. However, Attachment A states, maximum total dollars that may be awarded under a JOC is $4 million per year for a maximum of 3 years and the maximum dollar amount for each work order is $500,000. Mr. Williams agreed, explaining some continue to lobby the legislature to raise those limits, specifically raising $500,000 to $1 million. That does not mean Edmonds would use it in that manner; Edmonds could continue to use design -bid -build, but put a toe in the water and see how the City likes JOC and if it provides the benefits that others are finding, build up to a comfortable level using this procurement program. Councilmember K. Johnson said if the policy is changed, it would authorize up to $4 million for a project without a competitive bid. Mr. Williams disagreed, there cannot be a $4 million project, the limit per project is $500,000. He noted this was not his PowerPoint but one that has been delivered by people that do this work and they are looking at a sweet spot between $25,000 to $350,000 range where the speed at which the work can be done is maximized. In a large project, there is typically a lot of complexity, public interest, citizen involvement, etc. that would generally extend the timelines for delivering work. The JOC is best used, particularly in a city of Edmonds' size, for smaller projects than would be legally allowed. Councilmember Paine asked if staff had an opportunity to look at the means of setup with a unit price versus the recent opportunities with design -bid -build scenarios. She recalled during COVID and when smaller projects were bid, the bids were better than expected. She was not necessarily opposed to adding another tool to the toolkit like JOC, but she was interested in what staff had learned about the price differential. Mr. Williams answered it would depend on the project; JOC would be good for the capital facilities renewal budget each year where more could be done without developing projects to a high level Edmonds City Council Approved Minutes August 11, 2020 Page 6 of design first. Facilities Manager Thom Sullivan can go through the means book and look at the prices, review recent bids to see if the prices are competitive and compare well and if so, take advantage of the JOC route. If it looks like the price is out of line, the City owes the JOC nothing at that point and the project does not have to move forward which puts pressure on the JOC to give the City a competitive price. Staff can use their professional judgment to determine if the price is appropriate based on what has been spent in the past. Councilmember Paine agreed staff were the experts. Councilmember Paine asked if staff had an opportunity to talk with nearby communities about their experience. Mr. Williams said staff has talked with Everett the most who is using it in facilities although it is not limited to facilities. Any Public Works jobs would be a candidate for this and there are a fair number of projects that are over $500,000 that would be applicable under the current law. He envisioned the City starting small, trying the JOC and seeing how it works. The City may find they do not like a particular JOC and want to try another; the City can easily get out of one JOC and select another. There is very little downside because the City does not have to use it at all. Councilmember Paine asked how he envisioned managing for MWBE and historically underutilized businesses (HUB). Mr. Williams answered it would depend on the relationship with the JOC; if the City does not like the contractors they provide, they will not get any work. The City could relay its desire to have greater involvement from certain types of businesses, the JOC will provide that because they will not get the contract if they don't. Similarly the City could say it has enjoyed working with X company and would like to see them on a project. If the City is not obliged to give them anything; the JOC has a certain desire to please and provide what the City is looking for. Council President Fraley-Monillas asked what was the downside. Mr. Williams answered he and Mr. English have listened to a company that is very active in job order contracting, Gordian, as well as contractors involved with them, and honestly neither of them had identified a true downside. Council President Fraley-Monillas said if it was such a good thing, every city would be doing it. Mr. Williams answered at some point every city will have the option because their codes will allow it whether they use it or not. Edmonds is not on the leading edge of this and not one of the last either, but upfront in determining whether this has benefit for the City. Council President Fraley-Monillas asked if there were any labor -related issues. Mr. Williams answered not really, the City did not have to give the JOC any particular work. For example, if there was a small job that the union thought they had the capability to do and have done it in past; the City may want them to do it or contract it out. For example, painting the Frances Anderson Center; staff does a lot of painting but does not paint entire buildings so it would seem to be out of scope to be delivered by the local Teamsters and he doubted they would complain. However, if it was painting only two rooms, staff does that routinely and he envisioned that would continue. Council President Fraley-Monillas said that was her only concern, supplanting any current City work. Councilmember Distelhorst referred to disadvantaged and underutilize businesses and asked whether Tacoma was currently using JOC. Mr. Williams answered yes. Councilmember Distelhorst said Tacoma is doing a lot of work in that space; one of the points from the 2019 Disparity Study was ensuring contracts are split into smaller pieces which provides better opportunities for disadvantaged businesses. He asked if that was how JOC would factor into it. Mr. Williams said the JOC's willingness to coach, mentor, help with the red tape, and get the skill set by helping them with higher level functions that may be intimidating to a small contractor. JOC would meet both needs, theirs and the City's. Councilmember Olson absolutely recognized this instrument although she did not know it by the name JOC. The Department of Defense used a similar method for supplies, blanket purchase agreement. Having authority for a blanket purchase agreement or for JOC that is much higher than individual work orders, Edmonds City Council Approved Minutes August 11, 2020 Page 7 repeat relationships, not requiring as much work on bid and proposal which very costly in time and staff means the customer gets a better price. This is very commonly used outside the state and is a great option. She agreed with Councilmember Paine's point that on occasion the City would want to bid things to check market conditions. In the last few weeks the Council unanimously supported the idea of trying harder to support minority businesses. She expressed support for JOC. Mr. Williams recalled they used to be called indefinite delivery contracts. Councilmember Buckshnis referred to Attachment A, pointing out the maximum total dollar amount to be awarded under a JOC is $4 million per year for a maximum of 3 years, a total of $12 million. Any unused capacity from the previous year can be carried over from on year and added immediately following the year's limit. She asked if there could be a JOC up to $3 million in 3 years, noting Attachment A also states each work order the JOC shall not exceed $500,000. Mr. Williams said that is what the law allows; the City could adopt that but that does not mean it will be used. He did not see the City doing $12 million worth of JOC in 3 years. The City has not tried it yet and may not like it for some reason that hasn't been tdentifed. He eiiviiiGned the City' starting 11 Gllt V✓Itll one, reporting back to CGuiiCii and doing iiiGre if ;t has promise. Councilmember Buckshnis observed Attachment A states the City may have no more than three JOC in effect at any one time and asked if that was a total of $36 million over 3 years. Mr. Williams answered that would not happen; that was what's was allowed by the legislature. Councilmember K. Johnson said Attachment A was not just what was allowed by the state but would alter the City's resolution and provide provisions related to JOC. She recommended setting parameters and if administration did not think that much authority would be required, the amounts should be lowered. Mr. Williams said staff would still have to seek Council approval over $100,000. Councilmember K. Johnson expressed concern that the presentation of Attachment A has not been consistent. The JOC is good for small projects but she did not think the Council necessarily wanted to authorize $12 million through that process. Mr. Williams answered the money has to be approved in the budget and if the cost is over $100,000, Council approval is required; nothing changes about that. If the City liked JOC and it worked well, more of the already authorized capital spending could be accomplished in that manner but that would be entirely up to the Council to approve. Councilmember K. Johnson said she thought it was a good process but the limits were much higher than what the City would use it for. Even though those amounts are authorized by the state legislature, she was unsure the City wanted to have those high limits. Councilmember Buckshnis agreed with Councilmember K. Johnson; at any one point in time, the City could have $12 million in JOC for three years in a row. Although Mr. Williams says it would not happen, maybe the amount should be adjusted to the City's requirements. Mr. Williams said it was up to the Council but he assured it would never get there without Council having approved each one individually. Councilmember Buckshnis said sometimes important it is important to have policies fit especially with multimillion projects. Technically the City could commit $36 million over a 3 year period toward these job orders which did not sound like it was helping small businesses. Councilmember Buckshnis asked if there was an evaluation process, for example if the City engaged in a three year project: She referenced Haines Wharf and asked if there was -a way to have -stop gaps in place. Mr. Williams commented with Haines Wharf, individual large change orders were approved on a few occasions that consumed all the management reserve for the project. When it finally came to the Council seeking more money for the project, that was when the Council discovered the large change orders. Since then, the Council modified the purchasing policies, establishing a limit of $100,000. Nothing about the JOC would change that; any contract over $100,000 requires Council approval. Edmonds City Council Approved Minutes August 11, 2020 Page 8 Councilmember Buckshnis asked if approval had already been given and things were not working out, was there a way to stop the process. Mr. Williams answered the City can cancel a JOC contract at any time including mid -stream. That can be done now on any capital project, but the City still owes the contractor for whatever work they have performed to that point. That is very seldom done. The pier was a disappointing project, but the Council was involved in every step and nothing was hidden. The way the purchasing policies are constructed, Haines Wharf could not happen without violating the purchasing policies. Council President Fraley-Monillas relayed the maximum total amount of $4 million per year for a maximum of 3 years so the total would be $12 million. Mr. Williams answered yes if there were one JOC; the law theoretically allows three JOCs so the total would be $36 million. He did not envision that ever happening because the City did not have that much money. Council President Fraley-Monillas referred to the statement of $4 million per year for a maximum of $36 million for 3 years and the City may have no more than 3 JOCs in effect at any one time. She asked how $36 million would be possible with $4 million per year. Mr. Williams explained the way the law reads, the City could have more than one JOC. Theoretically, if there was enough money, $4 million could be authorized on a 3 year contract; if there were 3 JOCs, it would be $36 million. He did not see that being possible for Edmonds nor would the City want to. The intent is to start small and frankly the Council could limit that amount if they chose. Council President Fraley-Monillas asked whether he preferred to the leave the amount as is and make the assumption it would not occur or reduce the amount. Mr. Williams said he would prefer to leave what the law allows as the City's spending limit of $100,000 does not allow any project over $100,000 without Council approval. In addition, a project needs to be in the budget. Councilmember Olson commented one of the reasons a city would have more than one JOC was because they would have different specialties, but she agreed it was unlikely the City would spend anywhere near $4 million with any one of them. Mr. Williams agreed, he could see a JOC that was good at vertical construction, facilities, building renovations, etc. and another related to utilities such as excavation, laying pipe, etc. because those are two very different types of construction. As is currently allowed, if there is a $48,000 project in the budget, that amount could be spent with his signature, up to $100,000 with the Mayor's signature and if it is over $100,000, Council approval is required. Mr. Williams clarified this was not selecting a JOC. This has never been done this before so it is new to staff as well. If sounds it like a good idea, staff will schedule a resolution on the Consent Agenda and then entertain a JOC. It was the consensus of Council to put this on the Consent Agenda. Mayor Nelson declared a brief recess. 4. REVIEW OF COUNCIL CODE. OF CONDUCT Mayor Nelson said in discussions with Councilmember L. Johnson, there is interest in having a round robin where each Councilmember has an opportunity to speak and rotate through so everyone has an opportunity to speak. Councilmember L. Johnson said she appreciated the opportunity to bring this before Council. She initiated research on a code of conduct in the fall before she was on Council. Her desire for a more comprehensive code of conduct came from five years of attending and discussing Council meetings with others and an overwhelming consensus that the level of civility and decorum on Council could be Edmonds City Council Approved Minutes August 11, 2020 Page 9 improved on, concerns that grew after the resignation of a few directors. This document evolved over four months and includes points borrowed from dozens of sources including parliamentary training by Ann Macfarlane. One question that has been asked and that she asked herself is what is the difference between a code of conduct and a code of ethics. A code of conduct is a set of principles concerning the transaction of business by municipal officers in a manner that is necessary for transparent and accountable government. Much of the ethic codes that apply to City Council come from RCW Title 42 related to public officers and agencies. An example is no municipal officer may use their position to secure special advantages or exemptions for themselves or others. Councilmember L. Johnson explained beyond a code of ethics is a code of conduct. Both concern behavior but a code of conduct is related to how elected officials agree to treat one another, staff and the public. The underlying theme of the code of conduct is respect; research has shown a lack of respectful engagement impedes government by stalling decisions, reducing employee recruitment and retention, discouraging public engagement and a feeling of apathy. The code of conduct document is a draft, a starting point to begin discussion. She hoped tonight would not be a revisiting of past perceived wrongs nor an invitation to air grievances, but instead an opportunity for Council to come together in agreement on a shared expectation of how to conduct themselves and hold themselves and each other accountable going forward. So it would not be too overwhelming, she suggested going section by section. Council President Fraley-Monillas said in discussing this with Councilmember L. Johnson, she suggested getting questions answered tonight and any amendments be proposed next week so Councilmembers have an opportunity to think about it. She was not sure there was enough time tonight to make amendments in a manner that made any sense. Councilmember L. Johnson read each section and Councilmembers commented. Section 6. Council Conduct. Councilmembers should seek to improve the quality of public service and ensure public confidence in the integrity of local government and its effective open, and a citable ol2cration. To this end the following Code of Conduct for members of the Edmonds City Council is established: Councilmember Buckshnis raised a point of order, whether the plan was to review and ask questions point by point or the document in its entirety. Councilmember L. Johnson answered her understanding was the discussion would be regarding each section. Councilmember Buckshnis questioned whether there should first be a philosophical discussion about behaviors and issues, recalling she had gathered several cities' codes of conduct and had worked with former Councilmember Joan Bloom on this topic in the past. Councilmember L. Johnson assumed that would come out of the discussion on the individual sections, but she was open to the Council's wishes. Councilmember Buckshnis pointed out the Council could go point by point through this long document. She referred to the email from former Councilmember Bloom who has talked with several Councilmembers and she considered her a local expert. Said preferred to hear everyone's opinion on the code of conduct and what they see as dichotomies, etc. and talk globally about the differences between this code of conduct and the old code and what other cities are doing rather than going through it point by point. Councilmember Olson said Councilmember L. Johnson put a lot of time and effort into preparing this version. Going through it point by point will allow Councilmembers to see where they come together and where there are differences. After do that is accomplished, she agreed with having a bigger, more philosophical discussion. Edmonds City Council Approved Minutes August 11, 2020 Page 10 Council President Fraley-Monillas agreed with Councilmember Olson. The point of tonight was to allow Councilmember L. Johnson an opportunity to explain where the information came from and have a deeper discussion next week with regard to amendments, acceptance of certain points, etc. Councilmember Paine agreed, she favored a point -by -point review and having a fuller discussion next week. 6.1 Conduct during Public Meetings A. Councilmembers have a public stage to show how individuals with disparate points of view can find common around, demonstrate effectiveproblem-solving approaches, and seek solutions that benefit the community as a whole. There were no Council comments on this section. B. Councilmembers will practice civility, and decorum in discussions and debates. Disagreements should Focus on vision, policies, and their implementation Mr. Taraday advised there a special meeting scheduled at 8:30 pm. He recommended formally extending the committee meeting to a time certain so that anyone waiting for the special meeting to start will know when they can watch the special meeting. Councilmember L. Johnson asked if the special meeting could be held and return to this meeting. Mr. Taraday answered that could create more confusion for anyone watching. He recommended keeping things in the same sequence but extending this meeting. COUNCIL PRESIDENT FRALEY-MONILLAS MOVED, SECONDED BY COUNCILMEMBER DISTELHORST, TO EXTEND TO 9:15 P.M. COUNCILMEMBER PAINE MOVED, SECONDED BY COUNCILMEMBER OLSON, TO EXTEND TO 9:30 P.M. Council President Fraley-Monillas said the Council can always extend again. This agenda item is only going through the sections, not amending or debating. The problem will be if the Council completes this item, the special meeting cannot begin until the time specified. Councilmember Buckshnis agreed with 9:30 p.m. She plans to make comments on the proposed code of conduct based on her discussion with former Councilmember Bloom and did not plan to just agree with everything. If Councilmember L. Johnson planned to go section by section, she said Councilmembers should be allowed to comment like a normal vetting process. Councilmember Paine raised a point of order, the discussion is supposed to be regarding the motion. Councilmember Buckshnis said her comment was support for 9:30 p.m. based on what she thinks the objectives of this item are. Mayor Nelson ruled point taken. AMENDMENT CARRIED UNANIMOUSLY. COUNCIL PRESIDENT FRALEY-MONILLAS WITHDREW THE MOTION. Councilmember Olson raised a point of order and suggested Councilmembers raise their hands if they have something to say about a section rather than Mayor Nelson asking each person. Mayor Nelson ruled point taken and he will try that method. Edmonds City Council Approved Minutes August 11, 2020 Page 11 C. Ensuring -the -public feels welcome is a vital park of the democratic_process_. No_siaizs of partiali prejudice, or disrespect should be evident on the part of individual Councilmembers toward an individual participating in a public forum. Every effort should be made to be fair and impartial in listening to public testimony. Councilmember Paine asked if an "individual participating in a public forum" pertained to Councilmembers. Councilmember L. Johnson it was any individual. Councilmember Paine suggested inserting a discouragement of invidious (likely to arose or incur resentment or anger in others) language during Council meetings. Council President Fraley-Monillas suggested replacing testimony with comments in the last line as there are few opportunities for citizens to share testimony but they do provide comment in various arenas. In response to Councilmember Paine, Councilmember Olson expressed concern about putting restrictions on speech to the point where people feel they do not have free speech. What words are invidious is often a matter of opinion; obviously, she would like everyone to speak gently to each other and especially to citizens, but she urged caution about restrictions as that can be a dangerous slope. Councilmember Paine said that language was taken from the judicial conduct commission's orders for how judges are supposed to operate on the bench. It is a reminder for all to look at more tempered language. Although she worried about restricting language, the Council needs to be thoughtful and not use language that incurs resentment or anger in others. D. Councilmembers shall prepare themselves for 12ublic issues and listen courteously and attentively to all public discussions before the body during the meeting. Council discussions are open and transparent and diverse ideas and opinions are welcome. There were no COLmCII comments on this section. E. Whenever possible, Councilmembers shall seek to minimize surprises at public meetin s includiniz vettimz of amendments or new ideas prior to introduction and/or discussion and should seek to provide key questions to staff ahead of public discussions. Councilmember Buckshnis expressed concern with this section, pointing out citizens are looking for a vetting process. As Councilmembers, oversight is vetting, and sometimes questions do not arise until during or after a presentations and she did not want Councilmember's voices to be stifled. She tries to get key questions to staff beforehand, but it is important for citizens to see the vetting process. There may be surprises and the intent of Council deliberation is to vet and provide oversight. She disagreed with the comment made last week about Councilmembers asking questions because vetting should occur during a Council meeting. Councilmember Olson agreed Councilmembers should have an open mind until the vote is taken and sometimes Councilmembers hear things during the meeting. It seems like the general idea is to seek to minimize and she suggested remove "whenever possible" as it was redundant. Councilmember Buckshnis' point that things will come up during the meeting and being responsive to things that arise during the meeting is a valid point. Council President Fraley-Monillas said "minimizing surprises," was intended to avoid a "gotcha" for staff, catching them off -guard with questions that were not asked before the meeting. She suggested adding language regarding representation at public events without prior authorization as it relates to conversations with citizens because that is a dangerous slope if Councilmembers are indicating they represent the Council when they may not. Edmonds City Council Approved Minutes August 11, 2020 Page 12 Councilmember Distelhorst said Council President Fraley-Monillas' comment representation is addressed later in the document. With regard to this section, he read it similarly to Councilmember Olson, that Councilmembers shall seek to minimize and try to get questions answered beforehand. For items that arise during meetings, this in no way limits a Councilmember's right to ask questions of staff during the meeting. It establishes a guideline for best practice which respects the time at Council meetings as well as staff time. He appreciated the guidance especially as a new Councilmember. Councilmember K. Johnson said there were two issues; she supported seeking to minimize surprises at public meetings. She recalled when she was Council President, a Councilmember organized a public rally with hundreds of people speaking and she not informed beforehand which completely blew the agenda. Another time a Councilmember proposed a brand new idea without informing the Council in advance. In the past, if a Councilmember wanted to bring a new idea forward, they would announce it during Council comments to let others know they were working on a subject. She agreed with no surprises but the idea that amendments needed to be vetted, that had never been done in the eight years she has been on Council, it was not practical and would hamstring the Council. The Council receives the packet on Friday, leaving little time to vet amendments. She recommended removing the second sentence. Councilmember Buckshnis recalled Mr. Taraday saying he likes to help the new Councilmembers with amendments. She did not have a problem with having amendments made at Council meetings. She feared the public would see this section as the Council was meeting behind the scenes instead of Councilmembers doing their best to ensure meetings run smoothly and sometimes amendments change during discussion. She agreed with Councilmember K. Johnson's suggestion. Council President Fraley-Monillas raised a point of clarification, her understanding was Councilmembers' comments will not be reflected in document, any changes will need to be made as amendments. Councilmember L. Johnson agreed. Councilmember K. Johnson asked what the point of tonight's conversation was if Councilmember L. Johnson was not listening and making changes. Mayor Nelson recalled the description at the beginning was to give Councilmembers an opportunity to comment on individual sections and at the next meeting Councilmembers could make actual amendments. Councilmember L. Johnson agreed, commenting the document is a big deal and was not intended to be a one and one; this was the beginning of the discussion. Councilmember Olson commented it is like the difference between a discussion item and an action item; it gives Council an opportunity to know where others are coming from, digest those thoughts and have more clarity regarding the sections prior to potentially making amendments next week. Councilmember Buckshnis questioned why the old code of conduct was inadequate. Councilmembers should try to have an open mind because some of this is very restrictive. F. While the Council is in session Councilmembers shall neither, by conversation or otherwise delay or interrupt the proceedings or the Deace of the Council nor disrupt any member while speaking nor refuse to obey the orders of the Council or the Mayor, except as otherwise provided in these Rules Councilmember Buckshnis commented this is against Roberts Rules as it combined the Council and the Mayor. The Mayor has one responsibility and Council has another and this restricts the Council's work product. She preferred to comply with Roberts Rules and agreed Councilmembers should be courteous, most have worked in the corporate world and know how to act. She questioned how "peace of the Council" or "disrupt any member while speaking" was defined. She did not understand the trigger points. Edmonds City Council Approved Minutes August 11, 2020 Page 13 The old code of conduct said Councilmembers should listen courteously and attentively; she questioned the need for these restrictions. G. If a member is offended by the remarks of another member, the offended member should make note of the words used and call for a "point of personal privilege." The meeting chair will maintain control of this discussion and if deemed necessary, ask the offending member to restate their remarks. Councilmember K. Johnson said this is a misuse of Roberts Rules of Order; a point of personal privilege has to be timely and urgent and it refers to something like the room is too cold, I'm sick, call the doctor, or something like that, it does not give permission to speak. A Councilmember can only speak regarding the agenda topic. She referred to an article in Jurassic Parliament that states the bottom line is that the point of personal privilege does not allow for bloviating or indeed for any expression of your opinion. She recommended striking this section. Councilmember Olson agreed with striking this section. It is too subjective because what is offensive is clearly a matter of opinion. She viewed this as a dangerous free speech issue, commenting sometimes Councilmembers have to hear things they do not want to hear. Council President Fraley-Monillas agreed with Councilmember Olson, it can be difficult to determine what is offensive and a vote is taken to determine what is offensive. To Councilmember K. Johnson's point, instead of a point of personal privilege, it may be a point of order because the alleged comment would violate the code of conduct. She did a point of personal privilege earlier in the meeting for clarification, to clarify the intent of this item. She agreed everything in the document was very subjective which is why the Council votes. Councilmember Buckshnis agreed with Councilmember K. Johnson. She cautioned subjectivity can be dangerous for the Council. One of the biggest thing that happens is media sensation about how dysfunctional the Council is. The Council's role is to do their job, listen to what people say, and try to move things along. She has heard that one Councilmember does not like how she talks and another said they did not like a Councilmember's fluctuation of speech. When things reach that level, citizens are not seeing a functioning Council but a Council that is trying to find things wrong with each other. She cannot change someone else's perception of her, only they can change their own behavior. This section is getting into a dangerous situation where meetings will be interrupted for reasons like not liking what someone is wearing. She noted the point of personal privilege regarding Zach Bauder never made it into the minutes. Councilmember Distelhorst referred to the Jurassic Parliament training and the section on inappropriate remarks that include personal remarks, insulting language, vulgarity, attacks, inflammatory language, criticizing past actions with two exceptions and remarks that are not germane. Some wordsmithing may be necessary to 6. LG but it is within what the Council received at the retreat in February. There may need to be more consistency with the language the consultant provided before it comes back to Council. H. It is important that each Councilmember is treated equally by their Council peers. All members are du ly elected or al2pointed and should be afforded mutual respect. With the exception of the Council President's agenda -setting, ower no member has or shall be afforded extraordin powers beyond those of other members. Council President Fraley-Monillas asked where that statement came from. Councilmember L. Johnson answered she would need to research what sparked it, where it was borrowed from or whether it was something she wrote; preparation of the proposed code of conduct has been a four -month process borrowing from many different sources so she was unable to say offhand. Edmonds City Council Approved Minutes August 11, 2020 Page 14 Councilmember Buckshnis said this was a duplication of the code which addresses the Council President's agenda -setting power. It may be preferable to reference the code. Councilmember K. Johnson suggested a new section I, "Councilmembers should not communicate by text, email or handwritten messages during public meetings." Councilmember Olson expressed support for that addition. That has been brought up during OPMA training and is something Councilmembers could use a reminder on and it would be good to include in the code of conduct. Council President Fraley-Monillas questioned whether that would fall under the Council Rules and Procedures. The code of conduct is about Council conduct, not rules and procedures. Councilmember Paine supported Councilmember K. Johnson's suggestion. Councilmember K. Johnson said it was related to conduct. 6.2 Conduct with City Staff A. Councilmembers shall treat all staff as professionals with clear, honest communication that res ects the abilities experience, and dignily of each gerson. There were no Council comments on this section. B. As feasible Council Members will work with De rent Directors or desi pees before meetings to obtain the information needed to participate in discussions and debates and to make decisions. Councilmember Buckshnis envisioned the Mayor, as the administrator of the City, would not be happy if seven Councilmembers attempted to get the same answers from department directors or designees. That is a functionality of getting questions answered beforehand and copying Councilmembers and having the vetting process occur during the Council meeting or committee. This would bog down the entire administration. She likes to have a complete packet with as much information. Councilmember K. Johnson recalled when the CARES funding was on agenda as an action item, she wrote several letters to Mr. Doherty to get information and he did not respond. If Councilmembers are encouraged to ask questions in advance of a meeting, there should be a like responsibility of the director to engage with that Councilmember either in writing or by phone. C. City Council policy is implemented) through dedicated and professional staff. To support effective relationships, it is important that roles are clearly recognized. Councilmembers shall avoid. intrusion into areas that are the responsibility of staff and recognize that it is not the role of the Council or its members to administer Cijy business. Councilmember K. Johnson said Councilmembers often meet with staff or directors regarding an area of common interest to explore ideas. She did not consider that an intrusion, commenting those meetings are often by invitation. This section goes too far. Councilmember Paine suggested reversing the order of Sections C and B as C talks about policy which more closely follows A. Edmonds City Council Approved Minutes August 11, 2020 Page 15 Council President Fraley-Monillas said what has happened in the past is there have been Councilmembers who barge into department director's areas or demand responses. She suspected that was the reason for this section. Councilmember K. Johnson said she respects the administration's role and the role of staff. She has been invited to many meetings by directors to discuss detailed areas of concern. Including this section goes too far and she never barges in. Councilmember Buckshnis said this is quite restrictive. She has talked to many directors over the years. She did not understand why these very extreme, subjective statements were being included when there hadn't been any problems. The statements are restrictive and subjective and she has a problem with it. With regard to the restrictiveness of this, Councilmember Olson said there are invitation at times and sometimes the Council helps staff and sometimes staff wants the help. She suggested rewording this section. As an example, when the City wanted to reach out to businesses to ensure they knew about the CARES Act funding, if a Councilmember was willing and had a volunteer team to distribute flyers and staff did not have time to do it, that would be a violation of this section as written. Council President Fraley-Monillas reread the section with emphasis, explaining she did not see voluntary assistance as a rule violation. She pointed out "intrusion" means barging in, not being invited. One of the reasons the last statement is included is this there have been instances over the years of Councilmembers going into directors' offices and telling them how they want something done which puts staff in a very uncomfortable position. She understood it was an uncomfortable statement but there was a reason for it. Councilmember Paine suggested wordsmithing the language to define a better practice. D. Councilmembers may ask Department Directors or designee about the status of work items or request information. Except through their participation on Council they shall not expressly or implicitly ive orders or direction attempt to influence the decisions or recommendations of staff members or otherwise be involved in administrative functions. Councilmember Buckshnis said she understands the difference between legislative and administrative. She receives many emails that are administrative in nature and she forwards them to administration. Someone could interpret something she says as an explicit order when she did not intend it that way. The language is subject to interpretation. In a Councilmember's role as oversight, sometimes there needs to be robust discussions between a Councilmember, directors and/or the mayor. She did not support restricting interactions regarding process between the administrative and legislative branch to ensure both understood their roles. She referenced the old code of conduct which states, "conduct business in an open and transparent way, assist leading." Councilmember K. Johnson recalled this became an issue when Dave Earling was first elected and certain Councilmembers were asking for more information than lie was willing to allow. Former Mayor Earling's rule was if a request was less than a certain number of hours, the director could do the work, but if it was over a certain number of hours, the Mayor's permission was required. She viewed the proposed language as an overly strict standard because there needs to be flexibility. Council President Fraley-Monillas disagreed. She reread the statement with emphasis, recalling a former Councilmember was banned from speaking to staff for this reason. She had a discussion with former Mayor Earling today to confirm that. This isn't about communication between Council and directors, it is about Council giving orders and direction to staff and influencing decisions. She agreed it could be Edmonds City Council Approved Minutes August 11, 2020 Page 16 subjective, and if that arose, she hoped the Mayor would point to this policy and inform Councilmembers they were not to give orders or direction to staff. Councilmember K. Johnson provided a personal example; when she was working on the proposed resolution regarding extension of transit service in Edmonds related to the Swift line, she met with the Mayor and asked for permission to contact the Public Works and Planning Directors to get some very specific information to support the work she was doing. There are instances and opportunities for Council to work collaboratively and as written this is too extreme. Councilmember Buckshnis said she could cite many examples back to days of former Mayor Cooper when things were tight, no one did anything and the directors did not want to change financials. Councilmembers need to be able to discuss anything with directors related to work, recognizing the difference between legislative and administrative. She asked Councilmember L. Johnson where she found this section. Councilmember L. Johnson said the information was pulled from many different documents and she was not prepared to cite where it came from. Councilmember Buckshnis asked if Council President Fraley-Monillas helped her with this. Councilmember L. Johnson said no. E. Councilmember communications with City Staff shall be limited to normal City business hours, except in cases of emergency or a pre -agreed upon event or meeting held outside of normal City business hours. Responses to uestions posed outside of normal business hours should be expected no earlier than the next business day. Councilmember K. Johnson asked if this meant Councilmembers were only allowed to send email to staff 9-5 Monday through Friday. This section says Council is not to have any communication with staff outside business hours; a phone call is one type of communication, she would not call staff afterhours but she will write emails beyond 9-5 Monday through Friday. Councilmember L. Johnson answered she looked forward to a suggestion to clarify. F. Councilmembers shall never express concerns about the performance of a City employee in public, to the employee directly, or to the employee's manager. Comments about staff performance should only be made to the Mayor throw h appropriate correspondence. Councilmember K. Johnson said this is very extreme. During discussion about changing the hiring practices for the chief of police, she asked whose job it was to enforce the City code, whether it was HR director, the mayor or the city attorney. To say Councilmembers are never supposed to express concerns is too extreme. Councilmember Buckshnis said it was not only too extreme but also subjective. She asked what happened if employees were talking about Councilmembers which she has heard has happened. Mayor Nelson requested she refrain from using inflammatory language. Councilmember Buckshnis reiterated this language is very restrictive and very subjective. The Mayor should already be aware and if he/she is not, something is wrong with the chain of administration. Legislators should not be involved with administrative functions. It is the Mayor's responsibility to ensure their employees are functioning properly and if they aren't, an executive session is held. She questioned whether this applied to everyone or just to Councilmembers and said it should apply to everyone. Council President Fraley-Monillas said staff and Council each have their own policies. She reread the proposed statement with emphasis. In other words, the Council is not in staff s chain of command. If Councilmembers have issues with staff, the chain of command is the Mayor and he/she speaks to the director. If the director has questions, they can reach out to the Council. She encouraged Councilmembers to read the section more carefully and not make assumptions. Edmonds City Council Approved Minutes August 11, 2020 Page 17 COUNCIL PRESIDENT FRALEY-MONILLAS MOVED, SECONDED BY COUNCILMEMBER PAINE, TO EXTEND FOR 30 MINUTES. MOTION CARRIED (6-1) COUNCILMEMBER K. JOHNSON VOTING NO. Councilmember Buckshnis said it is not the legislative responsibility to do administrative work for the Mayor. The only person a legislative body should talk about is the legislative assistant and the city attorney because those are the only positions that work for the Council. This is an inappropriate statement and should not be in the code of conduct. The Mayor is the administrator and it is not the legislative role to criticize staff or comment on their performance. Council President Fraley-Monillas said the Mayor doesn't know what they doesn't know. If they don't know there are concerns, and concerns do arise on occasion, those concerns need to be expressed to the Mayor and allow them to handle it, not the Councilmember. Councilmember Olson agreed philosophically, this is all about the separation of legislative and executive so goes without saying. Her concern about including it is Councilmember K. Johnson's point about a Councilmember making an inquiry during a Council meeting that could be interpreted as critical and could limit conversation and being able to getting the answers the Council needs to make decisions. 6.3 Conduct with Council Legislative/Administrative Assistant A. Councilmembers shall treat the Legislative/Administrative Assistant as a rofessional with clear, honest communication that resl2ects abilities experience, and individual dignity. Additional! Councilmembers are responsible for ensuring a supportive and positive work environment for the Legislative/Administrative Assistant. Councilmember Olson said Sections A and D are redundant as they repeat what applies to staff. She realized this was a contract employee, but much of the same things apply. She suggested a simple statement that the same respect that is extended to staff is extended to contract employees, and referencing the Edmonds City Code 2.03.010 and 1.02.031.13.3 and any contract terms. This whole section differed from what she would want to say. Council President Fraley-Monillas liked this statement, it makes it clear the position is a professional and they are to be treated respectfully. The council legislative assistant is a contract employee which is different from staff although some of the vacation and medical benefits are the same. B. Given the need for shared coordination Councilmembers shall not re nest the Council Legislative Assistant to initiate any significant project or study, outside of limited research without the consent of the Council President. The Legislative/Administrative Assistant's time will be divided equally among the seven Councilmembers. Councilmember K. Johnson said she submitted the amendment to hire a legislative assistant. For a while the Council debated whether it would be one or two jobs. When she was the Council President, she supervised the legislative assistant, but she had absolutely no ability to give consent regarding the work they were doing as that was considered inappropriate and each Councilmember had their own access and could request whatever they wanted. The intent was to divide the time equally, but that was changed in the contract last year. This requires additional discussion especially when the Council President can play favorites. Councilmember Buckshnis said this is already referenced in the ECC; she agreed with Councilmember Olson that some of this was very subjective, favoritism can occur, it can be restrictive, and if the Council President doesn't like you, your work doesn't get done. When she was the Council President, the council Edmonds City Council Approved Minutes August 11, 2020 Page 18 assistant had been in place a long time and knew how to divide up her time. Things got muddied up when Councilmember K. Johnson was the Council President and the Council needs to go back to how it is explained in the code. Councilmember Paine suggest defining "a significant project or study" with an hour amount. Council President Fraley-Monillas referred to her recent email in response to allegations that there was unfavorable treatment. Her email stated the council assistant provides 20 hours/week of legislative assistance to Council, approximately 3 hours/week per Councilmember, and 20 hours/week of administrative work. As an example the project to compile a list of services for people in need took her about 40 hours and the Windward report required a great deal of time. The reason this section is included is to ensure that work is equal. She apologized if Councilmembers felt they had been treated unfairly; each Councilmember gets about 3 hours week for the council assistant to work on their projects. Councilmember Distelhorst inquired about ECC 2.03.010 Executive Assistant to Council. Mr. Taraday said there are two code sections, a section in Title 1 related to the Council President speaks to the responsibility to supervise. Councilmember Distelhorst said 2.03.010 does not contain any specificity regarding the position's division of time between Councilmembers. Mr. Taraday agreed neither the 20 hour/20 hour division nor the division of hours among Councilmember was in City code. Councilmember Distelhorst said under the current code, one Councilmember could use all the assistant's time if approved by the Council President. Codifying that the assistant's time will be divided equally among the seven Councilmember is a much fairer way to ensure that each Councilmember receives benefit from this position. Councilmember Buckshnis said the Windward project was not a good example because it was approved by all seven Councilmembers. The most important issue is transparency regarding who is doing what and where, recalling when Mayor Nelson was Council President, the assistant recorded their time by Councilmember. Council President Fraley-Monillas relayed the council assistant keeps a record of how her hours are spend and a topic list. She is currently working on projects for Councilmembers Distelhorst, Johnson, and Olson. She has made it clear that the three hours/week is the only fair way to do it. She agreed there was nothing in the code but she heard allegations a while back that people were getting preferred treatment and getting extra work from the assistant. She told the assistant to divide the 20 hours into 3 hours a week per Councilmember. If a Councilmember doesn't want their three hours, the assistant adds it to a larger project she is working on. That is fairest way although it is a challenge to ensure everyone is treated fairly and respectfully. The only time the assistant deviates from that is if she is working on a gigantic project such as the Windward report which consumed at least 100 hours. This section clarifies the time will be equally divided among Councilmembers. The other 20 hours/week is administrative work. D. Councilmember communications with the Legislative/Administrative Assistant shall be limited to normal Cily business hours, except in cases of emergency or a pre -agreed upon event or meeting held outside of normal City business hours. Responses to questions posed outside of normal business hours should be expected no earlier than the next business do. Councilmember K. Johnson said Councilmembers may wish to communicate via email after 5, on weekends or on holidays; it is too restrictive to limit communication to normal City business hours. For example, if she sends an email after business hours, she did not expect a response until the assistant was back at work. Limiting communication to the assistant's business hours is impractical. Edmonds City Council Approved Minutes August 11, 2020 Page 19 E. Councilmembers shall never ex ress concerns about the -performance of the Legislative/Administrative Assistant in -public or to the Legislative Assistant directly. Comments about performance should only be made to the. Council President throe h aparopriate correspondence. Councilmember Buckshnis asked if each Councilmember would have their own legislative assistant because that was how this read. If a Councilmember had an issue with a project the assistant is working on, they should be able to speak to them in private. Councilmembers should all be able to have professional person -to -person conversations to resolve an issue. She should be able to talk to the legislative assistant because she is the Council's assistant. Council President Fraley-Monillas explained this is not about talking to the legislative assistant. It is related to expressing concern about the performance of the legislative/administrative assistant in public or directly to the assistant. Having comments about performance made to the Council President through appropriate correspondence puts it on the Council President to figure out what's going on if the assistant is not performing the way they should. Like it or not, the Council President is the assistant's supervisor. This is not about communication; direct communication can happen and everyone will have a level of disagreement. This is about the performance of the legislative assistant which has to go through their supervisor which is Council President. 6.4 Conduct with Boards Committees Commissions and Outside Nizencies A. The City maintains several boards and commissions as s means of encouragilig and ratherin communi hiput. Citizens who serve on boards and commissions become more involved in government and serve as advisors to the City Council or Mayor. They are a valuable resource to th_e_City's leadership and should be treated with appreciation and respect. Councilmember Buckshnis suggested Section 1.04.050 Committee Functions addresses these issues. Council President Fraley-Monillas said this is related to Council conduct and their behavior toward boards and commissions and that is the difference between the code related to committees. B, Councilmembers are appointed as non -voting members to serve as the primary two-way communication liaison between the Council and boards commissions and committees. Councilmembers are not to direct the activities or work of the board commission or committee. Councilmember Buckshnis was confused by "not direct;" as a liaison a Councilmember acts as a sounding board. The Council liaison is interactive with the board/commission to assist them in achieving their mission. She did not understand the reason for this section because in a committee function the council liaison is an aid and helps direct their work. Councilmember L. Johnson said it was one thing to answer questions and clarify, and another to direct their activities. That is what this is saying, the liaison is not there to tell them what to do, but act as a liaison for clarification. Councilmember Distelhorst said his experience with another Councilmember as a co -liaison was very much related to listening and answering general questions versus directing their work. He suggested removing "outside agencies" from the title because when a Councilmember represents the City on an outside agency, they are voting members. Councilmember Buckshnis said in her opinion, advise was the same as direct; when you are advising someone, you are helping them. As Councilmembers become ingratiated in boards and commissions, they act as an advisors and help them. This language is very limiting. Edmonds City Council Approved Minutes August 11, 2020 Page 20 Council President Fraley-Monillas said Councilmembers are not voting members of boards or commissions and are there to hear what they are working on and provide input if asked, but not to run the board or commission. She has heard from directors that in the past some Councilmembers think they are in charge of the board/commission. This clarifies the Councilmember's role to the board or commission. C. Councilmembers may attend any_board or commission meeting to which they are not appointed but shall do so as a member of the public. Personal comments or positions, if given, will be identified as such and shall not be represented as the position of the City or Council. Council President Fraley-Monillas relayed Mr. Taraday and she discussed this recently and if all Councilmembers are invited to boards and commissions, there is an issue with a quorum. Mr. Taraday said the Council may want to consider having a policy that requires notice to the Council President or council assistant to determine if there will be a quorum at a board/commission meeting. If a quorum of Councilmembers showed up to board/commission meeting/ event and even if they spoke as individuals and not as Councilmembers, if the subject related to City business, he was concerned it could be considered a quorum by the courts. Councilmember Olson asked if that was an issue if Councilmembers did not speak. Mr. Taraday said speaking was the primary concern; if a Councilmember was in attendance at a public meeting and did not speak, he had much less concern. Councilmember Buckshnis recalled having a guest Councilmember attend a meeting such when former Councilmember Teitzel made a presentation regarding plastic to the Mayor's Climate Protection Committee and Councilmember K. Johnson attended last week's at Tree Board. She questioned why a Councilmember could not attend a board/committee meeting to vet something through committee. She recognized some people cannot differentiate between a Councilmember and a citizen, but sometimes a Councilmember may want other Councilmembers to attend a board/commission meeting to vet their resolution or ordinance through the board/commission. She did not understand the purpose of this section when there have not been any problems with it in the past. Council President Fraley-Monillas said there was request recently for a Councilmember to be provided the time and dates of all boards and commissions so they can attend. The issue is not with two Councilmembers at a board/committee meeting, but issues with quorum arises when four Councilmembers attend. With regard to Mr. Taraday's suggestion that Councilmembers report their intent to attend a meeting, that could be problematic if the person they report to was on vacation or out sick. The only way would be to give public notice that there could be a quorum of Councilmember at every meetings. Most boards/commissions only have one Council liaison so having another Councilmember present is not a problem. A couple boards/committees have two Council liaisons; having a third attend is not a problem but a fourth creates a quorum. COUNCIL PRESIDENT FRALEY-MONILLAS MOVED, SECONDED BY COUNCILMEMBER PAINE, TO EXTEND FOR 15 MORE MINUTES. MOTION CARRIED UNANIMOUSLY. Council President Fraley-Monillas suggested Mr. Taraday work with Councilmember L. Johnson or her to consider a way to ensure that too many Councilmember do not attend a meeting. She agreed with Councilmember Buckshnis, that a second Councilmember may want to attend a board/commission meeting. Councilmember Buckshnis said she made that request and Ms. Hope answered it superbly, saying a quorum could be an issue. She advised the council legislative assistant that she wanted to attend the Housing Commission and the Economic Development Commission. During this time of heightened Edmonds City Council Approved Minutes August 11, 2020 Page 21 anxiety, people have reached out to her and she was interested in learning what was going on. Recognizing that a quorum could be an issue, she had rescinded that request. D. Councilmembers shall not contact a board or commission member to lobby on behalf of an individual business or organization. It is acceptable for Councilmembers to contact the board committee or commission members in order to clarify or contextualize a Rosition talten b. the body....When making contact the relevant Council liaison should be included in such communication.. Councilmember Buckshnis said this is more of an ethics issue. Councilmembers should never lobby for anything. E. When attending a non -city sponsored event meetin conference or other activity,a Councilmember may be authorized to represent the Council only upon a ma'ori vote of the Council. Likewise a Councilmember may be authorized to represent the City only upon the express permission of the Mayor. Councilmember Paine suggested the addition of an Item F, "No Councilmember or group of Councilmembers may contact an outside agency to express a view that does not comport with the decision of the Council. Any Councilmember's correspondence to an outside agency must also be sent to the Council President and Mayor." She recalled an incident a couple years ago where a small group of Councilmembers provided a minority report to a state agency. If there is correspondence, a call, email, letter, etc. the Council President at a minimum needed to be alerted and probably all Councilmembers and the Mayor. Councilmember Buckshnis said that was an ethics issue. It has happened a couple of times. Councilmember K. Johnson agreed with Councilmember Paine's suggested addition. There was a minority report and then-Councilmember Nelson had a private meeting with the agency head, none of which was coordinated. Mayor Nelson requested she refrain from making personal remarks. Councilmember K. Johnson said four Councilmembers expressed a personal opinion or tried to lobby the state director which became a big problem and should be avoided in the future by having a rule in the code of conduct. Council President Fraley-Monillas agreed with Councilmember Paine's suggestion and said possibly it should fall under ethics. When the minority sent the letter in the past, nothing happened. Such a statement would make it clear that a group of Councilmembers do not have the authority to contact a public agency. Councilmember Paine welcomed additional input on this topic, noting there may need to be some law review as it combines both ethics and conduct. 6.5 Conduct via Technologic Communication A. Technology allows words written or said to be distributed far and wide. Written notes, voicemail messages, tents and email are public records and should be treated as such. Councilmember Olson suggested deleting the letter A if there was no section B. 6.6 Compliance and Enforcement A. The integrily of individual councilmembers_r_eflects, both positively and negatively, on the overall public perception of the ethical behavior of the entire Council and City. Councilmembers Edmonds City Council Approved Minutes August 11, 2020 Page 22 themselves have the primaiy responsibility to ensure that conduct standards are understood and met and that the public can continue to have full confidence in the integrity of its government.. Councilmember Olson said it seemed like big omission that the code of conduct did not address conduct between Councilmembers and suggested that be Section 6.6. and make Compliance and Enforcement Section 6.7. Conduct between Councilmembers should include something like "While disagreement on policy matters is to be expected, Councilmembers are responsible for creating a personally supportive...". Council President Fraley-Monillas raised a point of order that the Council was considering Section 6.6.A. Councilmember Olson said her suggestion was for a section that would proceed this. Council President Fraley-Monillas preferred to discuss this section first. Mayor Nelson ruled point well taken and said Councilmember Olson could continue. Councilmember Olson continued, "...responsible for creating a personally supportive and positive work environment for each other. At a minimum, this would apply to respectful written communication and conduct in public meetings." B. The Council has a responsibility to intervene when actions of a member or members appear to be in violation of the Code of Conduct or when a violation is brought to their attention Tile City Council by majorily vote ma impose sanctions on members whose conduct does not comply with these standards. Sanctions may include any or all of the following_ 1. Official verbal re rimand in an open meeting. 2:. Formal public letter of censure by a majority vote of the council. 3. Loss of committee or external appointment assignment(s). Councilmember Buckshnis said this is very limiting, there are no definitions and it is very subjective. If a way could be determine where it would not be subjective, it may be helpful, but what one person considers a violation is subjective. As a former regulator and auditor with a deep voice and part of the loud family, she has been criticized for doing nothing more than talking. This contains a lot of subjectivity and it without definitions, it will degrade the integrity of the Council. Councilmember Olson was strongly opposed to an official verbal reprimand in an open meeting. General management and interpersonal rules of conduct subscribe to praise in public and criticize in private. To build a case for someone who repeatedly violates the code of conduct, there may be a desire for documentation and she was not opposed to that, where someone has a private conversation, documents it and sends it to the full Council via blind copy for the sake of documentation. This is subjective and is one person's opinion that there is a problem. That would be for all Councilmembers to consider in the future for a censure. The acting out in public and the drama it causes is not appropriate and does not improve the conduct of the Council. Councilmember Distelhorst agreed with the comments about definitions which may alleviate some of the subjectiveness. He did not subscribe to the criticize in private; he liked praise in public and preferred being constructive in private. He wanted to keep the code of conduct private and if offline conversations needed to happen, it could be done in a constructive manner that adheres to the code of conduct. Having some specificity regarding meaning would help everyone. COUNCIL PRESIDENT FRALEY-MONILLAS MOVED, SECONDED BY COUNCILMEMBER L. JOHNSON, TO EXTEND 5 MINUTES. MOTION CARRIED UNANIMOUSLY. Council President Fraley-Monillas said having conversation in private does not build confidence in the public, it has to happen in public. Her research found there had been one censure on the City Council in 20 years indicating this is something that is done lightly. If a Councilmember is inappropriate, there needs Edmonds City Council Approved Minutes August 11, 2020 Page 23 to be steps for taking action. There was an incident in the last year where she was asked if she intended to censure. She said no, if the behavior corrected itself, she wouldn't censure or take it to the Council. It depends on how heinous the incident is. The one time the Council did censure it was serious. A censure is not one person's view; technically 1-2 people write the censure, but a majority is required to pass it. Councilmember Buckshnis said she sent information out because a censure almost happened last year. This section is internally inconsistent, it talks about open communication, conduct and behavior, but it is restrictive. Citizens do not want to see the Council fighting. She asked if the Council could hold an executive session to discuss a censure. Mr. Taraday answered the Council would be allowed to have an executive session to discuss a possible censure. In fact, the one time that it happened, there was an executive session. Councilmember Buckshnis asked if the Council could have an executive session to have a discussion. Mr. Taraday explained an executive session can be held any time there is a complaint or change against a public employee or officer. Anything that would potentially rise to the level of a censure would certainly be enough of a complaint to warrant an executive session. Mr. Taraday clarified anything that could potentially warrant a censure would qualify as complaint for OPMA purposes. Councilmember Olson commented one-on-one conversations happen between Councilmembers regularly, but not in a public meeting. When someone is offended or has an objection, it is preferable to have a one- on-one conversation. It is often likely the person did not realize they had been offensive as there is such a difference of opinion between people. With regard to the official verbal reprimand, she commented there have been three in three months, and a great deal of division whether the verbal reprimand was the offensive behavior or whether the comment about the offense behavior was the offensive behavior. She did not want to include that language in the code of conduct and preferred it be a prohibition. She said censure is not defined, the level of infraction that would cause a censure is not defined, and majority is not the right level to approve a censure, it should at least be majority plus one. COUNCIL PRESIDENT FRALEY-MONILLAS MOVED, SECONDED BY COUNCILMEMBER OLSON, TO EXTEND FIVE MINUTES. MOTION CARRIED UNANIMOUSLY. Councilmember L. Johnson said censure is a parliamentary procedure so it is difficult to have an additional definition. With regard to requiring a super majority vote, a censure is regarding the actions of one member and that person is allowed to vote although ethically they should recuse themselves. A super majority would require only one more dissenting Councilmember to defeat the census vote; therefore, she did not feel a super majority was not appropriate in this case. Council President Fraley-Monillas said there are circumstances that should require a censure. Perhaps the minority report is an example that should have resulted in a censure; abuse toward staff is probably grounds for censure. Exactly what behavior warrants censure is difficult to define; a censure is in parliamentary procedure and is used to take action regarding someone's inappropriate behavior. There are a lot of reasons for a censure; in 20 years the Council has done it once and has had the ability to censure for the last 10 years. With regard to her previous comments regarding a super majority, Councilmember L. Johnson clarified it would take the member being discussed and two other Councilmembers to defeat the censure vote. There was potential for a 4-2 vote if the person being discussed recused themselves but they were not obligated to. She did not support requiring a super majority vote. Councilmember Buckshnis recalled there was a super majority vote for the censure that the Council did. She has information regarding the potential censure last year. Councilmember Olson pointed out the Council did not discuss the entirety of this code of conduct versus the existing code of conduct and who it affects. Edmonds City Council Approved Minutes August 11, 2020 Page 24 Councilmember L. Johnson thanked the Council for the excellent discussion, The proposed code of conduct is a draft given to Council to amend, There were excellent examples tonight regarding how it can be strengthened. 5. ADJOURN With no further business, the Council meeting was adjourned at 10:25 p.m. MIQ AEL NELSON, MAYOR S iF SE , Cl CLE — Edmonds City Council Approved Minutes August 11, 2020 Page 25 Public Comment for 8/11/20 City Council Meeting: From: Ken Reidy <kenreidy@hotmail.com> Sent: Tuesday, August 11, 2020 7:28 AM To: Public Comment (Council) <publiccomments@edmondswa.gov>; Public Comment (Council) <publiccomments@edmondswa.gov> Cc: Council <Council@edmondswa.gov>; Judge, Maureen <Maureen.Judge@edmondswa.gov>; Nelson, Michael <Michael.Nelson @edmondswa.gov>; Taraday, Jeff <jeff@lighthouselawgroup.com> Subject: Public Comments: Packet Page 22 for the August 11th City Council Meeting Please see Packet Page 22 for the August 11, 2020 City Council Meeting. On that page you will see multiple examples of building encroachments into City Rights of Way. One can even see a building that encroaches into both a street right of way and an alley right of way. I once had a similar situation. On August 17, 2007, Duane Bowman notified the Reidy family that Thuesen had withdrawn his encroachment permit application and that all of Thuesen's improvements would be on his property. Mr. Bowman concluded his email as follows: The issue we are now faced with is that your clients have an accessory building located within the alley right of way. As I see it there are three potential options: 1. Move the building out of the right of way, or 2. Obtain an encroachment permit for the structure, or 3. Work with the property owners abutting the alley right of way and petition the city to vacate the entire alley right of way. As promised, your client's have the opportunity to present evidence to show that the building does not encroach into the alley right of way or the extent of the encroachment. Please let me know which course of action your clients would like to take. Thanks, Duane Bowman Development Services Director (425) 771-0220 It is very important that all elected officials understand that it was the City's idea to vacate the entire alley right-of-way as one option of dealing with what Mr. Bowman called "issues" related Edmonds City Council Approved Minutes August 11, 2020 Page 26 to Reidy's accessory building located within the alley right-of-way. We followed the City's advice and we let the City know which course of action we wanted to take. Please appreciate what happened to my family after following the City's advice. Please appreciate that Reidy owned 100% of the fee title to the property where my building was located. Thuesen had no ownership interest in the property. Please ask the City Attorney or the State Attorney General what would happen if a citizen with no ownership interest in the streets and alleys shown on Packet Page 22 for the August 11th City Council Meeting filed requests for Code Enforcement against all the owners of buildings that encroach into the streets and alleys and the related setbacks from such property lines. Please let me and all other citizens know if citizens with no fee interest ownership have standing to file setback related code enforcement requests. Please answer the question of standing as it relates to both opened and unopened rights of way. Thank you. From: Joan Bloom <joanmbloom @icloud.com> Sent: Monday, August 10, 2020 6:37 PM To: Public Comment (Council) <publiccomments@edmondswa.gov> Subject: Proposed Council Code of Conduct Council, Since my email to you last week on the proposed Council Code of Conduct, I have spoken to five Council Members. From these conversations, it's clear that those involved disagree on what's disrespectful. Even those who support the new proposal disagree. I'm not surprised. We all have our own definition of disrespectful. As Council Members, how to spend the citizens' money is going to create disagreements, as it should. I'm convinced that NONE of the proposed Council Code of Conduct should be implemented. It is not Council's job to police fellow Council Members' behavior, with each other or with staff, and enforce compliance through sanctions. There is already a process to sanction a fellow Council member, and it is meant to sanction egregious actions, such as ethical violations, stepping outside of the role you were elected to perform, or acting independently of _Council. I urge you to use your discussion time to clarify what problem(s) you are trying to solve. You don't need a code of conduct to agree that name calling or addressing a staff member or each other by first name in a Council meeting is not appropriate. Your time would be more effectively used by focusing on Council's role, the Mayor's role, and staff's role, in serving the citizens of Edmonds. A good starting point would be Mayor Nelson's June 23 public response to Edmonds City Council Approved Minutes August 11, 2020 Page 27 Council member Kristiana Johnson's June 12 email to a staff member. That action on the part of Mayor Nelson was: (1) A clear violation of #7 of the existing Code of Conduct: "Assist leaders in controlling disrespectful and intimidating behavior." (2) Not within his authority as Mayor which is to administrate the COE, oversee staff, and ensure enforcement of our laws and ordinances. (3) An abuse of his role as facilitator of the meeting, a role that requires following rules of order, and does not allow the Mayor to participate in (influence) Council's decision making process without the express consent of the Council. This issue is not just about this Council. It is about all future Councils. The proposed Council Code of Conduct would damage the integrity of Council itself, and would irreparably interfere with each Council member's duty, and ability, to perform the role they were elected to perform. Thank you for your consideration of my input. Regards, Joan Bloom Edmonds is a gift. Let's show our appreciation. Edmonds City Council Approved Minutes August 11, 2020 Page 28