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HomeMy WebLinkAbout05-30-2014 5-30-2014 Council Operations Committee Packet Council Operations Committee May 30, 2014 - 1:00 PM City Hall Council Conference Room AGENDA I.CALL TO ORDER A.Roll Call B.Announcements C.Agenda Modifications II.CONSENT AGENDA A. April 28, 2014 Minutes* III.DISCUSSION ITEMS A. Council Committee Format* IV.ADJOURNMENT Agendas and minutes are available to the public at the City Clerk's Office, on the City website (http://www.auburnwa.gov), and via e-mail. Complete agenda packets are available for review at the City Clerk's Office. *Denotes attachments included in the agenda packet. Page 1 of 9 AGENDA BILL APPROVAL FORM Agenda Subject: April 28, 2014 Minutes Date: May 27, 2014 Department: Administration Attachments: 4-28-2014 minutes Budget Impact: $0 Administrative Recommendation: Background Summary: Reviewed by Council Committees: Councilmember:Staff: Meeting Date:May 30, 2014 Item Number:CA.A AUBURN * MORE THAN YOU IMAGINEDCA.A Page 2 of 9 Council Operations Committee April 28, 2014 - 3:30 PM Council Conference Room MINUTES I. CALL TO ORDER A. Roll Call Chair Wagner called the Council Operations Committee meeting to order at 2:36 p.m., in the Council Conference Room at Auburn City Hall, 25 West Main Street in Auburn. Members in attendance included Chair Rich Wagner, Vice Chair Bill Peloza and Member Largo Wales. Also in attendance were Mayor Nancy Backus, City Attorney Daniel B. Heid, Human Resources and Risk Management Interim Director Rob Roscoe, and Deputy City Clerk Shawn Campbell. B. Announcements There was no announcement. C. Agenda Modifications There was no agenda modification. II. CONSENT AGENDA A. March 24, 2014 Minutes Vice Chair Peloza moved and Member Wales seconded to approve the March 24, 2014 meeting minutes. MOTION CARRIED UNANIMOUSLY. 3-0 III. ORDINANCES A. Ordinance 6504 An Ordinance of the City Council of The City of Auburn, Washington, creating a new chapter 2.08 of the Auburn City Code establishing an Independent Salary Commission Chair Wagner introduced Ordinance No. 6504. The Committee discussed requiring anyone interested in applying to be a member of the Independent Salary Commission fill out a volunteer application form. Vice Chair Peloza stated commissioners need to be thoroughly vetted before being appointed. City Attorney Heid stated this is Page 1 of 3 CA.A Page 3 of 9 currently the City's policy for all boards and commissions appointments. Chair Wagner requested the population used for comparative purposes be lowered to 25,000. Vice Chair Peloza requested the Independent Salary Commission be directed to consider all duties a councilmember performs in addition to the standard Council duties. The Committee discussed the addition of the Mayor to the current ordinance. City Attorney Heid stated he has confirmed the City has the ability to exclude the Mayor from the Independent Salary Commission's purview. The Committee discussed a more in-depth review of the Mayor's compensation package at a later date. The Committee requested this Ordinance be forwarded to the Public Works Committee for discussion, the Finance Committee for action and to full Council for consideration on May 5, 2014. IV. DISCUSSION ITEMS A. City Council Workshops (Heid) Discussion of a Council Workshop format relative to the Council Operations Committee Chair Wagner noted changing from standing committees to a workshop format is going to take time. The Council Operations Committee will need to work out the logistics for ad hoc committees. Changing the format will allow for individual councilmember to discuss an item without creating a quorum of a standing committee. The Council Operations Committee will need to determine if appeals will be handled by the hearing examiner or by City staff. Vice Chair Peloza stated the openness of the workshop process allows all Councilmembers to hear items and discuss them openly. The cost saving in both printing cost and staff time need to be considered as a benefit of changing the Council format. He requested a list of advantages and disadvantages for the proposed change be provided at the next Council Operations Committee meeting. He also would like additional information on the duties of an ad hoc committee. Member Wales stated staff time and printing cost should not be the deciding factor for changing the Council Committee format. The current process allows for an idea to be completely vetted by a majority of the Council. Member Wales expressed concerns regarding Council being able to review items that require more in- depth scrutiny. The role of the Council Operations Committee will Page 2 of 3 CA.A Page 4 of 9 need to be redefined. City Attorney Heid stated the workshop format allows Council to spend time as a whole on the more important issues. An ad hoc committee will not have any action so it will not have to adhere to the open public meetings act. V. ADJOURNMENT There being no further business, the meeting adjourned at 3:29 p.m. Approved this ___ day of May, 2014. __________________________ __________________________ Rich Wagner, Chair Shawn Campbell, Deputy City Clerk Page 3 of 3 CA.A Page 5 of 9 AGENDA BILL APPROVAL FORM Agenda Subject: Council Committee Format Date: May 27, 2014 Department: Administration Attachments: OPMA Budget Impact: $0 Administrative Recommendation: Background Summary: Reviewed by Council Committees: Councilmember:Staff: Meeting Date:May 30, 2014 Item Number:DI.A AUBURN * MORE THAN YOU IMAGINEDDI.A Page 6 of 9 REPORT TO COUNCIL OPERATIONS COMMITTEE Questions Regarding Informal Committees and the Open Public Meetings Act 1 REPORT TO COUNCIL OPERATIONS COMMITTEE Questions Regarding Informal Committees and the Open Public Meetings Act As we have discussed before, Washington’s Open Public Meetings Act (OPMA) - RCW Chapter 42.30 - controls how public agencies must conduct their meetings. RCW 42.30.030 declares that “[a]ll meetings of the governing body of a public agency shall be open and public and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in this chapter.” RCW 42.30.020(2) defines "governing body" to mean the multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment. As an aside, I would note that the OPMA applies to “meetings of the governing body.” Under RCW 35A.12.120, a quorum of the Council (or a committee thereof) must be present for there to be a “meeting.” One of the challenges Auburn’s current committee structure creates is that, with three-member committees, any time two members does something that would be considered “action” under the OPMA, the notice and other requirements of the OPMA are triggered. Adding further complication to this, RCW 42.30.020 provides a very broad definition of what constitution under the OPMA.1 Auburn, different than a number of other cities, formally established 2 its committees and empowered them to act on behalf of the City Council in a variety of ways. For instance, ACC 12.60.050D requires certain kinds of Type C right-of-way permits to be approved by the Public Works Committee. Because Auburn’s committee structure has its committees acting on behalf of the City Council, this structure almost always triggers the 1 RCW 42.30.020(3) "Action" means the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. "Final action" means a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance. 2 In Clark v. City of Lakewood. 259 F.3d 996, 1013 (9th Cir. 2001), the court indicated that one of the factors that indicates a body’s need to comply with the OPMA is the formality of its creation. In that case, the court (also) held that OPMA applied to a (non-quorum) task force that took public testimony, held hearings, and acted on behalf of the governing body. The court concluded that these activities placed it within the ambit of RCW 42.30.020(2) without addressing the circumstances under which a committee "acts on behalf of a governing body.” [As an aside, from my personal experience and familiarity with this case, I would say that the task force did not hold public hearings, although (non-member) people did attend the task force meetings. DI.A Page 7 of 9 REPORT TO COUNCIL OPERATIONS COMMITTEE Questions Regarding Informal Committees and the Open Public Meetings Act 2 requirements of the OPMA. In contrast with Auburn’s structure, many cities and counties have “ad hoc” or “informal” committees that have limited power; because those committees are not acting on behalf of the council, a quorum of the council is not required for the committee to gather and discuss issues, and those gatherings do not trigger the public meeting requirements of the OPMA. It should be noted that a committee’s structure, ad hoc, standing, etc., is not the crucial distinction regarding whether the OPMA applies. Rather, it is what the committee does. If a group (less than a quorum) of councilmembers “acts on behalf of the governing body”, conducts hearings, or takes testimony or public comment, that group would be subject to the OPMA. This necessarily leads to the critical discussion of when a group of councilmembers is “acting on behalf” of the Council. In a recent case, Citizen’s Alliance v. San Juan County3, the Court said “In sum, we adopt the reasoning of the 1986 [Attorney General Opinion] and hold that a committee ‘acts on behalf of a governing body’ when it exercises actual or de facto decision making authority.” In that case, the court found that because the party challenging San Juan County submitted no evidence that the alleged committee exercised actual or de facto decision making authority, no "meeting" occurred for OPMA purposes. In looking at whether a committee exercises actual or de facto decision making authority, the courts will, again, look at what the committee actually does, as well as how it was established. If the Council formally designates some of its members to look at an issue, but only empowers them to: 1) gather information (from staff, or their own research), without taking public testimony or public comment and, 2) report back to the full council with a recommendation and/or the results of their study, that committee will probably not be held to be subject to the OPMA. This would apply if, for instance, the Mayor asked a few Council members to participate in a working group. On the other hand, if the Council formally designates some of its member to conduct public meetings, take public testimony, or, as with some of our current code, to make decisions on behalf of the Council, the OPMA will always apply. Checking with other jurisdictions and the Municipal Research and Services Center (MRSC) in Seattle, it appears that most jurisdictions do not use committees to the extent of and along the same lines as Auburn has. So, to answer a question posed by the Council Operations Committee, the City Council could (less formally) establish ad hoc committees - to address specific questions or issues 3 Court of Appeals No. 70606-3-1, filed 4-28-14. DI.A Page 8 of 9 REPORT TO COUNCIL OPERATIONS COMMITTEE Questions Regarding Informal Committees and the Open Public Meetings Act 3 - where councilmembers would not be taking testimony or receiving statements from individuals, and where that committee would only be making a recommendation to the full City Council, and in that case, it would appear that the committee would not need to comply with the OPMA challenges that go along with that. The City Council could, likewise, keep some committees as formal committees that take action on behalf of the City Council, e.g., the Council Operations Committee. But in that case, the Committee would need to comply with the OPMA, and no two members of the committee (assuming that the committee would be comprised of three members with a two-person quorum) could meet to discuss issues that would come before the Committee. Another thing to keep in mind regarding less formal [non-OPMA] committees is that they should not be attended by a quorum of the full City Council. Currently, Auburn Council Committees are public meetings, published agendas, minutes and comply with the OPMA. Therefore, attendance by a quorum of the City Council, or even by the entire City Council would not be problematic.4 In conclusion, the City Council could establish informal sub-quorum committees in which the members of the committees could evaluate among themselves particular issues. So long as the informal committees do not hold public hearings to receive public testimony (public comment) and no action is taken by the committee, other than to make a recommendation to the full City Council, we should be fine. Consistent with the authorities and references above, such committees would be outside the scope of the OPMA. Daniel B. Heid, Auburn City Attorney 5-28-14 4 MRSC answers the inquiry of when is a committee of the governing body is subject to the Open Public Meetings Act as follows: A meeting of a committee of a governing body is subject to the Open Public Meetings Act when it acts on behalf of the governing body, conducts hearings, or takes testimony or public comment. RCW 42.30.020(2). A committee acts on behalf of the governing body when it exercises actual or de facto decision-making power. AGO 1986 No. 16. So, for example, if a committee is merely gathering information that will result in a recommendation to the full governing body, it most likely is not subject to the Open Public Meetings Act because it is not exercising actual or de facto decision-making authority in these circumstances. DI.A Page 9 of 9