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11-04-2019 CITY OF FRIDLEY CHARTER COMMISSION MEETING NOVEMBER 4, 2019 CALL TO ORDER: Chairperson Rolstad called the Charter Commission meeting to order at 7:04 p.m. ROLL CALL: Members Present: Commissioners Gary Braam, Donald Findell, Richard Johnston, Ted Kranz, Bruce Nelson, Rick Nelson, Barb Reiland, Pam Reynolds, Valerie Rolstad, Avonna Starck, Kelli Brillhart Members Absent: Cynthia Soule, Manuel Granroos Others Present: Daniel Tienter, Finance Director/City Treasurer/City Clerk/Staff Liaison Melissa Moore, Administrative Services Coordinator/Deputy City Clerk/Staff Liaison David Ostwald, Councilmember-at-Large APPROVAL OF AGENDA Commissioner Gary Braam MOVED and Commissioner Pam Reynolds seconded a motion approving the meeting agenda. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON ROLSTAD DECLARED THE MOTION CARRIED. APPROVAL OF MINUTES Commissioner Findell MOVED and Commissioner Reynolds seconded a motion approving the meeting minutes of September 3, 2019. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON ROLSTAD DECLARED THE MOTION CARRIED. Commissioner Reynolds asked for the meeting minutes of October 7, 2019 to be amended as follows: Page 9, last paragraph, third sentence should read, “Therefore, in order to correct the error, she is asking that he bring back the ordinance as it was requested.” CHARTER COMMISSION MEETING OF NOVEMBER 4, 2019 PAGE 2 Page 9, last paragraph, last sentence should read, “There is a process…” Commissioner Brillhart noted her name was left off the list of members who were absent from the October 7, 2019 meeting. Commissioner Rick Nelson MOVED and Commissioner Braam seconded a motion approving the corrected meeting minutes of October 7, 2019. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON ROLSTAD DECLARED THE MOTION CARRIED. ADMINISTRATIVE MATTERS A. Upcoming Term Expiring: Rick Nelson (02-21-2020) Commissioner Nelson requested this item be moved to Future Meeting Topics (8A). Commissioner Findell inquired about the vacancy of Commissioner Crandall. Staff Liaison Melissa Moore informed the Commission that a letter from Chief Judge Meslow declaring a vacancy for Commissioner Crandall’s position was received by staff. There are currently two vacancies on the Fridley Charter Commission, Mr. Tienter informed the Commission that the City Council knows of the vacancies and staff will post the openings on the web site and social media. OLD BUSINESS A. Discussion of Chapter 6 – Section 6.05 Mr. Tienter informed the Commission that the first attachment is a draft ordinance of the language approved at the September 3, 2019 meeting, the second attachment is language the City Attorney revised and recommended and the third attachment is the draft ordinance staff put forth at the October 7, 2019 meeting for discussion purposes only. Also distributed was a list of comparative research of municipalities regarding purchases and contracts. In some situations, the language regarding purchasing contracts was not a perfect match to what Fridley has. Generally, staff looked at Saint Louis Park and South Saint Paul when drafting the ordinance. Commissioner Brillhart asked for clarification of the three attachments. Mr. Tienter informed Commissioner Brillhart that staff presented a draft ordinance to the Commission at the October 7, 2019 meeting, which included language from the City Attorney. The Commission asked staff to go back and prepare the ordinance as ordered by the Commission, so staff removed any recommendations the City Attorney requested and separated them. The second attachment with red lines is the language from the City Attorney. The third attachment includes language approved by the Commission in September along with language from the City Attorney. Commissioner Reynolds noted that in the language from the City Attorney it says the “Minnesota Uniform Municipal Contracting Law as amended from time to time.” Typically, this CHARTER COMMISSION MEETING OF NOVEMBER 4, 2019 PAGE 3 Commission does not list specific documents or statutes because if they change or are re- named then the Commission must go back and change the Charter language. The Commission typically uses “by State Statute.” In the past the Commission will, at the end of a chapter, make a citation. At the last meeting the Commission discussed the inclusion of the word resolution. She does not feel the use of the word resolution allows for transparency, like an ordinance does. Commissioner Brillhart agreed with Commissioner Reynolds’ sentiment about citing specific statutes. She asked if it was possible to say “as established by Minnesota state law” or “applicable State Statute.” Mr. Tienter clarified that when the original language that was accepted by the Commission in September, staff had included “State Statute.” When staff sent the language to the City Attorney for final codification, the City Attorney recommended changing it. Mr. Tienter noted he thought the City Attorney would be comfortable citing “State Statute” especially given the introductory language that references competitive bids that refers to specific parts of state law. Mr. Tienter felt citing “State Statute” would provide the clarity the Commission would desire and the city would need in order to function effectively. Commissioner Rick Nelson agreed with changing the language to “State Statute.” In his experience the titles of specific laws change, even while the substance of the law stays the same. He believes the revised language from the City Attorney is acceptable, if a reference to “State Statute” was put in place of “Minnesota Uniform Municipal Contracting Law.” As well as changing the word resolution to ordinance in the last sentence. He looks at it as protecting the City Manager or their designee from liability. If something is inappropriately spent, Council couldn’t say they didn’t know about it. He thinks Council should be aware of these matters if they’re going to be fiscally responsible. Commissioner Reiland noted this draft does include the word resolution. That doesn’t mean the Commission couldn’t change that back to ordinance. Commissioner Rick Nelson said he thought the Commission should have that conversation. Commissioner Findell recommended removing “Minnesota Uniform Municipal Contracting Law” and changing it to “applicable State Statute.” Commissioner Brillhart pointed out there is a difference between a “state law” and “statute.” Mr. Tienter added that in the state of Minnesota, the terms “law” and “statute” are relatively interchangeable. A section of statutes is usually considered a law, and then statutes make up laws. If the language said “Minnesota Statutes” that would cover any applicable laws that apply. The “Minnesota Uniform Municipal Contracting Law” is a collection of a dozen statutes. Commissioner Findell appreciated the language clarifying conveyances, real estate purchases, etc. However, he does not appreciate the use of resolution over ordinance. This language put the authority in the City Manager and the Mayor, and then the Council could wipe that all out with a resolution. He feels that’s disturbing. CHARTER COMMISSION MEETING OF NOVEMBER 4, 2019 PAGE 4 Commissioner Rick Nelson asked if everyone agreed with the red language, making it “state statute,” changing the capitalization and adding conveyances, real estate purchases and sale agreements? If they are, then he wanted a motion that the Commission agrees to that portion, but then go back to the original language for the last sentence that says that signed by the Mayor on behalf of the city as well as City Manager or documented designee, and add shall be executed in the name of the City. That way the City Manager could still designate someone on his behalf, but the Mayor is still held accountable. Chair Rolstad asked Commissioner Rick Nelson to clarify his motion. Commissioner Rick Nelson recommended taking the suggest changed from the City Attorney and change from “Minnesota Uniform Municipal Contracting Law” to say “State Statute.” Then for the last sentence to say “signed by the Mayor on behalf of the City and City Manager, or documented designee, and shall be executed in the name of the City.” Mr. Tienter asked “City Manager or City Manager’s designee” so the construction is like the red line that is above. Commissioner Rick Nelson agreed. He clarified the last sentence would remove “unless otherwise authorized by the city council by resolution” and instead say “signed by the City Manager, or the City Manager’s designee and shall be executed in the name of the City.” Chair Rolstad asked for a reading of the new language of Section 6.05. Commissioner Rick Nelson read: “The City Manager shall be the chief purchasing agent of the City. All purchases on behalf of the City shall be made and all contracts shall be let by the City Manager, or the City Manager’s designee(s), provided by the City Council appropriated sums necessary for the contract or purchase, and the amount of the purchase or contract does not exceed that required for competitive bids as established by state statue. Except for those purchase or contracts subject to the authority of the City Manager as set forth herein, all bonds, contracts, conveyances, real estate purchases and sale agreements, and similar instruments shall be approved by the City Council and signed by the Mayor and City Manager, or the City Manager’s designee(s) and shall be executed in the name of the City.” Commissioner Rick Nelson MOVED to approve the new language of Section 6.05, Commissioner Reynolds seconded. Commissioner Brillhart asked what the reasoning was for removing “unless otherwise authorized by the City Council by resolution.” Mr. Tienter responded that if there was a contract that met the threshold criteria of competitive bid, Council would approve the contract. If they desired in that resolution, they could designate the City Manager or the Public Works Director to execute the agreement, then perhaps sign pay requests on their behalf. An example is when a street construction project happens the City CHARTER COMMISSION MEETING OF NOVEMBER 4, 2019 PAGE 5 Manager and City Engineer are the staff monitoring the contracts and monitor day to day operations and standards. When a pay request comes in the City Engineer and the City Manager could sign those pay request on behalf of the City. Then they would be processed normally through the claims process, then to be ratified by the Council before the payments come through. It would always be at Council’s discretion to declare anything over the threshold could designate the Mayor, the City Manager or the City Manager’s designee(s) to sign on behalf of the City. One of the concerns with that is the Mayor is not the one who is monitoring projects, so the thought was that the City Engineer or the designee would be in a stronger position to ensure that the parties are acting appropriately. Mr. Tienter noted the City Engineer or City Manager could always inform the Mayor to not sign on behalf of the City. It would be the Council’s prerogative to pass a resolution authorizing the City Manager or City Engineer to handle contracts such as this on the City’s behalf. Commissioner Rick Nelson thought if Council agrees to a contract, to him it would be appropriate for the City Manager or designee to sign off without having to go through the process of a resolution. Mr. Tienter noted that anything that crosses the bid threshold the Mayor would be required to sign. Commissioner Rick Nelson said once competitive bid process is done, then that would have met the standard, anything under that would still be a part of the entire bid. Mr. Tienter said if the Commission is comfortable with that, staff would apply that method. Mr. Tienter informed the Commission that a record of the Commission’s intent is recorded in the Minutes. Mr. Tienter acknowledged he understands the modified language and will prepare a new draft for the Commission. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON ROLSTAD DECLARED THE MOTION CARRIED. Commissioner Rick Nelson asked if the Commission wished to discuss Section 6.07 and the possibility of adding it to the draft ordinance. Chair Rolstad agreed. Commissioner Rick Nelson MOVED that the Commission proceed with the original language, keeping the word ordinance and not using resolution. Mr. Tienter informed the Commission that the goal of the suggested changes to Section 6.07 was twofold: first, the City has various purchasing and budgetary policies. Staff are attempting to provide Council a way to efficiently put those policies into place and amend them as needed. Staff can modify those policies in a way to remain transparent, but also expeditiously to make sure the City maintains compliance. Secondly, in chapter three of the Charter it says ordinances should only be used if a penalty is in place for violating a policy. These sections of chapter six are an administrative framework for staff to conduct themselves in day–to–day operations under purview of the Council. These changes are not meant to be punitive, but to be direction to staff from Council. Given the nature of the regulations, Mr. Tienter did feel that promulgating CHARTER COMMISSION MEETING OF NOVEMBER 4, 2019 PAGE 6 purchasing policies as an ordinance would not be the appropriate vehicle because he does not think the Charter Commission is trying to attach criminal liability to violating a purchasing regulation. Mr. Tienter noted that there are criminal penalties attached to the Minnesota Uniform Municipal Contracting Law, so those regulations are already built into chapter six. The use of the word resolution is to allow Council to respond quickly to guidance from applicable agencies and ultimately build the structure that the community can rely upon to make sure that these regulations flow through appropriate channels. Commissioner Brillhart inquired if ordinances take longer to pass and resolutions move faster. Mr. Tienter informed the Commission that a resolution is a written order of Council. Administrative matters of the Council can be made by motion. Staff are recommending that these purchasing regulations be considered administrative matters and therefore can be passed by resolution as is consistent with other chapters of the Charter. Ordinances do take longer to process. Other sections of the Charter say ordinances are only appropriate if violations carry punitive penalties. This is consistent with guidance from the League of Minnesota Cities (LMC). A resolution is more appropriate because these changes are administrative instruction from the Council to staff on how to conduct day–to–day business of the City. Section 6.05 establishes the construct of purchasing powers and Section 6.07 clarifies that if Council wants further purchasing regulations beyond what is in the Charter, they would adopt those by resolution. Commissioner Brillhart shared that part of the Commission’s concern that ordinances are read twice, and the public has a chance to speak on them. Resolutions are presented one time and the public doesn’t have an opportunity to address Council about them. Related to “further regulations,” which she thought was very broad, she asked what types of purchases would fall into that category, large purchases, or down to small purchases such as new light switches. Mr. Tienter responded that if the Commission recommends the modified language of Section 6.05, the purchasing regulations would be applicable to anything that is under the threshold that is established by state law, in this case it’s $175,000. The Minnesota Uniform Municipal Contracting Law also has thresholds of over $25,000 where you must get multiple quotes. Anything under $25,000 the City could go into the open market to buy items. The City has its own purchasing policy in which lower amounts are set, require use of cooperative purchasing ventures to ensure the lowest prices, and purchasing card regulations. All these regulations are administrative in nature. If the Commission’s principal concern is if an agenda item could pop up and citizens didn’t hear about it, the Commission could always require a public notice be made. Staff are in support of transparency. For the reasons mentioned, and the true nature of an ordinance, he does not feel that further purchasing regulations should be made by an ordinance. Commissioner Reiland noted her dislike of “further regulations” as too wide open. Anything that isn’t mentioned specifically in the section could be done by resolution. CHARTER COMMISSION MEETING OF NOVEMBER 4, 2019 PAGE 7 Commissioner Findell asked if there are any ordinances that speak to current purchasing practices in place that will be affected by this change? Mr. Tienter responded he did not know of any ordinances in place that speak to purchasing regulations. Chair Rolstad asked if there is a purchasing amount limit for the City Manager. Mr. Tienter said it would now be in the revised Section 6.05 the maximum would be $175,000. Anything below that amount would be applicable to the purchasing regulations. Technically, a city could have regulations in excess of $175,000 but that would not be advisable because state law regarding competitive bids is very specific. Mr. Tienter did not recommend adding to state law, although a city could if it wanted to. Past practice of most cities is to go along with state law. Commissioner Brillhart asked if Section 6.07 would only apply to situations under $175,000 and not already covered by covered by Section 6.05? Mr. Tienter responded Section 6.07 could apply to over $175,000 but the Charter and the Council can not adopt anything that contrasts with state law. The only thing the Council could do in amounts over $175,000 is to be more restrictive than state law. Council could not pass an ordinance or a resolution declaring the City would not follow sections of state law. Council could adopt purchasing regulations for above $175,000 assuming they are not in contrast or conflict with state law. Those regulations could only be more restrictive. Commissioner Findell requested a specific example where the purchasing regulations would have to be changed as we have outlined them already in the Charter. For that reason, he would prefer to continue to require an ordinance. He does not see any need to make a change if there are no examples to discuss. Commissioner Reynolds asked Mr. Tienter if he could put language in that would require public hearing. She added that was the definition of having an ordinance, because a public hearing is required along with two readings. If the Commission changes the word to resolution requires ten–day notice of the meeting and allow public comment, then the only step you’re eliminating is the two readings of an ordinance. You’re still going through the process. Mr. Tienter acknowledged that an ordinance does require additional processes: two readings, publication, public hearing and a waiting period before it goes into effect, along with penalties for violation. The principle reason for modifying it to resolution from ordinance, outside of administrative function, is direction from Council to staff should not be in the form of an ordinance. Resolutions are directives from Council to provide instruction to staff for day–to–day operations. Ordinances, as per Section 3.05 should only be adopted when penalties are attached to their violation. There are other recourses if someone violates the direction of the Council such as disciplinary action up to involuntary termination from one’s position. Those actions fall under CHARTER COMMISSION MEETING OF NOVEMBER 4, 2019 PAGE 8 the purview of the City Manager. The LMC has also stated ordinances should only be used when there are actual penalties attached to their violations, such as land use, public nuisances, etc., where a city may want to proceed to court to gain compliance. Staff are held accountable in chapter seven. If they violate purchasing policies, they would be held personally liable to for unauthorized purchases. Mr. Tienter felt that violations of these policies should not carry a criminal penalty for violation because there are several other internal protections in place if a violation occurs. Commissioner Brillhart believes the reasoning for the change from ordinance to resolution is sound. But the way the draft is written as “further regulations” is too broad. She does not feel the language in the draft of Section 6.07 is not simply administrative direction. Commissioner Brillhart offered “Further administrative instruction for the making of bids…” instead of “further regulations.” Mr. Tienter agreed the Commission could modify the language in any way they choose. Based on the discussion this evening, he recommended making Section 6.07 subject to the provisions of Section 6.05, saying anything over $175,000 would be regulated by the competitive bid process and anything under $175,000 would be subject to regulation by the Council by resolution. Rather than having the broad language, it could say something like “any regulations for the making of bids and letting of contracts are subject to Section 6.05 and adopted by resolution.” That would make Section 6.07 subordinate to Section 6.05 and establish a firm limit of $175,000. If that amount changes the Council has purview to make administrative changes under that amount. Commissioner Brillhart asked what the cost was of an ordinance compared to a resolution. Mr. Tienter said it depends on the length of ordinance. Ms. Moore informed the Commission that to publish an ordinance about the same size as Section 6.05 would be approximately $200. Mr. Tienter added a separate publication is required when staff publishes a public hearing notice. The cost of a longer ordinance can be reduced if a summary ordinance is written and approved by Council. Commissioner Reiland asked if Section 6.05 was for anything over $175,000 and Section 6.07 is for anything under $175,000? Mr. Tienter clarified that Section 6.07 was for any further regulations, so over $175,000. The language could be modified to say for any amount below what is identified in Section 6.05 the Council may promulgate regulations via resolution. Council could adopt any amount that is under the amount in Section 6.05. Commissioner Reiland agreed putting a dollar amount in Section 6.07 would make sense. Commissioner Kranz asked if “in conjunction with Section 6.05” would clarify Section 6.07? CHARTER COMMISSION MEETING OF NOVEMBER 4, 2019 PAGE 9 Commissioner Brillhart added “subject to Section 6.05 further regulations for the making of bids and the letting of contracts under $175,000 may be made by resolution subject to the provisions of this Charter.” Mr. Tienter recommended not including the $175,000 amount. The reference is to state statute, which is $175,000. He recommended the same language but not referencing the specific dollar amount because Section 6.05 would be referenced in Section 6.07. Mr. Tienter suggested language to the effect “any amount under the threshold established by Section 6.05 the Council may adopt further purchasing regulations by resolution” or something to that effect. If the Commission is comfortable with language like that, staff would draft language in conjunction with the City Attorney and present it to the Commission. Chair Rolstad agreed that was a good idea to ensure clarity on the exact wording. COMMISSIONER NELSON MOVED AND COMMISSIONER REYNOLDS SECONDED A MOTION TO NOT ACCEPT THE PROPOSED LANGUAGE AND TO KEEP THE EXISTING LANGUAGE. A roll call vote was requested. Ayes: Braam, Findell, Kranz, Rick Nelson, Reynolds Nays: Brillhart, Johnston, Bruce Nelson, Reiland, Rolstad, Starck CHAIRPERSON ROLSTAD DECLARED THE MOTION FAILED BY A VOTE OF 5 TO 6. Chair Rolstad MOVED, Commissioner Brillhart seconded a motion to direct staff to put the language Commissioner Brillhart suggested into a draft of Section 6.07. Staff will draft new language with the City Attorney and present it to the Commission in January. Mr. Tienter affirmed that staff will listen to the recording to make sure the intent of the conversation will be reflected in the next draft. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON ROLSTAD DECLARED THE MOTION CARRIED. NEW BUSINESS A. 2020 Calendar of Charter Commission Meetings Mr. Tienter noted the Commission usually meets the first Monday of the month. Staff are requesting quarterly meetings, as well as the ability to move the March and November meetings a week later to accommodate the municipal elections. Commissioner Reynolds expressed concerns that the Charter bylaws wouldn’t allow for only four meetings per year. Commissioner Rick Nelson informed the Commission that the bylaws only require an annual meeting in March, they do not outline the required number of meetings. Commissioner Reiland asked why staff want to change to quarterly meetings. CHARTER COMMISSION MEETING OF NOVEMBER 4, 2019 PAGE 10 Mr. Tienter said that as discussed at previous meetings, there has been a stated desire to not “fiddle” with the Charter any more than is necessary. If that is the case, there is not a need to have additional meetings. The Commission is working on chapter six right now and hopefully that will be finished in January. The bylaws do note that the Chair may call a meeting, or five members of the Commission may call a meeting. Commissioner Reiland expressed her desire to keep the meetings as has been done in the past and have the option to cancel a meeting if there is no business to conduct. Commissioner Starck asked if the group was searching for things to do because they have meetings, or is the Commission having meetings because there are things to do? Commissioner Reiland answered that in her experience the Commission has had full meetings with many things to do. Commissioner Kranz noted he will miss the January and February meetings. He does not think the normal number of meetings is an inconvenience for staff or the Commission members and doesn’t see a need to change the schedule. Commissioner Reynolds said the Commission is very deliberative and she doesn’t feel the group would get all their work done in four meetings. Commissioner Reiland MOVED to not accept the recommended quarterly meeting dates for 2020, Commissioner Kranz seconded. Mr. Tienter recommended that the March and November meetings be moved to accommodate the Presidential Primary and the General Election. Charter Commission members discussed meeting dates and agreed upon the following meeting dates for 2020: January 6, February 3, March 9, April 6, May 4, October 5, November 16. Chair Rolstad MOVED to accept the seven agreed upon dates, Commissioner Reynolds seconded. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON ROLSTAD DECLARED THE MOTION CARRIED. FUTURE MEETING TOPICS/COMMUNICATIONS Mr. Tienter updated the Commission that chapter 10 will be tabled indefinitely until there is substantive action on federal rule making related to the making of franchises. The Commission agreed that working on chapter 12 would not make sense until chapter six was finalized. Chair Rolstad asked if the group was done with chapter six. Mr. Tienter said staff will put forth a draft final ordinance for the Commission to approve in January. CHARTER COMMISSION MEETING OF NOVEMBER 4, 2019 PAGE 11 Mr. Tienter added that staff are having internal discussions regarding chapter two needing a few minor renumbering changes. Staff are working with the City Attorney for clarification. Staff will report back in January. Mr. Tienter informed the Commission that the City is in the process of changing firms for the City Attorney. The City went through an RFP process, interviewed candidates, and a new firm was chosen. That change will go before the Council for approval. Mr. Tienter reminded the Commission that Ms. Moore sent the Commissioners a list of Charter chapters with the most recent date of revision. If Commissioners need updated hard copies, they should contact Ms. Moore directly. 8A. Upcoming Term Expiring: Rick Nelson (02-21-2020) Commissioner Rick Nelson agreed to be reappointed to another four-year term. Commissioner Brillhart MOVED and Commissioner Starck seconded a motion to reappoint Commissioner Rick Nelson to a new four-year term to the Charter Commission. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON ROLSTAD DECLARED THE MOTION CARRIED. ADJOURNMENT: Commissioner Reiland MOVED and Commissioner Brillhart seconded a motion to adjourn the meeting. UPON A VOICE VOTE, ALL VOTING AYE, CHAIRPERSON ROLSTAD DECLARED THE MOTION CARRIED AND THE MEETING WAS ADJOURNED AT 8:28 P.M. Respectfully submitted, Melissa Moore Administrative Services Coordinator/Deputy City Clerk/Staff Liaison Commissioner Bruce Nelson, Secretary