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HomeMy WebLinkAboutNatural Resources November 12 20081 WHATCOM COUNTY COUNCIL 2 Natural Resources Committee 3 4 November 12, 2008 5 6 Committee Chair Carl Weimer called the meeting to order at 9:30 a.m. in the Council 7 Chambers, 311 Grand Avenue, Bellingham, Washington. .8 9 Present: Absent: 10 Seth Fleetwood None 11 Bob Kelly 12 13 Also Present: 14 Sam Crawford 15 L. Ward Nelson 16 Barbara Brenner 17 18 19 COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL 20 21 3. RESOLUTION PROVIDING A FRAMEWORK FOR THE FLOOD CONTROL 22 CONSTRUCTION COST -SHARE PROGRAM (AB2008 -380) (COUNCIL ACTING 23 AS THE FLOOD CONTROL ZONE DISTRICT BOARD OF SUPERVISORS) 24 25 2. ORDINANCE REPEALING ORDINANCE 97 -027, RELATED TO THE 26 ESTABLISHMENT OF A FRAMEWORK FOR THE FLOOD CONTROL REPAIR AND 27 MAINTENANCE CONSTRUCTION COST SHARE PROGRAM (AB2008 -376) 28 29 1. ORDINANCE REPEALING ORDINANCE 98 -085, AND AMENDING WHATCOM 30 COUNTY CODE CHAPTER 2.02.050, COUNTY COUNCIL MEETINGS — COUNCIL 31 ACTING IN OTHER CAPACITIES (AB2008 -377) 32 33 4. RESOLUTION ESTABLISHING FLOOD CONTROL ZONE DISTRICT FUNDS AND 34 AMENDING THE BY -LAWS OF THE FLOOD CONTROL DISTRICT BOARD OF 35 SUPERVISORS AS OUTLINED IN RESOLUTION 92 -014 (AB2008 -378) 36 (COUNCIL ACTING AS THE FLOOD CONTROL ZONE DISTRICT BOARD OF 37 SUPERVISORS) 38 39 Rebecca Craven, Council' Policy Analyst, stated they would discuss all four agenda 40 items at one time. She gave a staff report on the history of these items. After this phase, 41 they will consider the advisory structure of the district. Staff are developing a set of 42 interlocal agreements to further specify the relationship between the district and the 43 County. They must separate the district funds from the County funds and create separate 44 budgets. 45 46. Kelly asked when they will deal with the changes to the district's interest income. 47 Craven stated they will deal with it through one of these four items. The interest income is 48 about $150,000 per year for each of the next two years. Making the change to the interest 49 income would decrease the general fund and increase the Flood Control Zone District fund 50 by that much. 51 Natural Resources Committee, 11/12/2008, Page 1 Kelly asked if legal counsel have reviewed these four items. Craven stated they have. She described the background of these items. One change is to the cost share amounts. Paula Cooper, Public Works Department, stated change the cost share to 70/30 from 80/20. The advisory committee recommends that change. Also, adjust prioritization criteria to mimic how they've actually been using the matrix the past few years. Issues that came up at the advisory committee had to do with whether other special districts had a chance to look at the changes and whether or not they should address easements in the Code. According to legal counsel, that is an internal decision, and they won't address it in the Code. They are still looking at the form. Crawford asked why diking districts would like this. Cooper stated they won't like it. It will make them pay more. Crawford stated the advisory committee recommends it. Cooper stated the committee recommends changing the cost share to what it was ten years ago to address the decreasing flood fund balance. The 70/30 cost share will include project design and permitting costs, which the districts have paid for historically. Crawford asked why the advisory committee agreed to increase the diking districts' costs. Cooper stated any special district can raise their assessments to address the new cost share, and the purpose is to address the declining flood fund balance. The committee felt that restoring the cost share to what it was previously was a reasonable compromise. The advisory committee discussed this for several months. Weimer asked if the advisory committee made a recommendation on changing the prioritization. Cooper stated they didn't really discuss it. Kelly referenced the guidelines for prioritization in AB2008 -380, item 100.xx.040, the last paragraph. He asked if that would affect their ability to merge flood control and salmon recovery. He asked if not mentioning the salmon recovery plan would preclude them in the future from continuing to build more fish - friendly dikes, for example. Cooper stated it shouldn't interfere. The Salmon Recovery Plan is an approved plan. That factors into it. They don't want to do projects that.are inconsistent with approved plans. Weimer moved to recommend approval of item three, AB2008 -380, to the Flood Control Zone District Board of Supervisors. Motion carried 2 -0 with Fleetwood absent. Weimer moved to recommend approval of item two, AB2008 -376, to the Flood Control Zone District Board of Supervisors. Motion carried 2 -0 with Fleetwood absent, Craven gave a staff report on agenda items one and four. She referenced agenda item four, Exhibit B, section 100.xx.010. In 1998, the County added language that added the Executive to the Board of Supervisors to avoid a conflict in directing the County Flood Control Engineer. That language led to questions about whether or not the Executive has any role in Board of Supervisor legislative activities, such as voting and veto authority. At the time that language was approved, the Council asked the question whether the Executive would have veto authority. The answer from legal counsel was that veto authority was not Natural Resources Committee, 11/12/2008, Page 2 intended, and that'the Executive would have no role in legislative matters. That was the Council's understanding when it approved the language, and this proposed language today makes that understanding clear. The proposal today is to have the Board of Supervisors adopt changes to the bylaws in the structure to duplicate the intent of Ordinance 98 -085, with the addition that it spells out the exact role of the County Executive, that there was not an intent for the Executive to have veto or approval authority over the legislative actions of the Board of Supervisors. The proposal makes clear that the Executive does have supervisory authority over the Flood Control Engineer and that the Board of Supervisors would be authorizing delegated signature authority to the Executive for actions approved by the Board. It is essentially a duplicate of the County structure, adopted for the Board. Brenner asked why they are doing that with the Board of Supervisors, when they don't do that with the County Council. Craven stated the Council and Executive are governed by the Charter. The Charter is clear about the Council's role and the Executive's role. The statute governing flood control zone districts is not built for charter counties. It is built for commissioner counties. The role of the Executive is not spelled out. The statute gives complete administrative authority to the County Flood Engineer. That's fine in counties with commissioners, because commissioners supervise that staff position. However, the statute also allows for direct election of supervisors. In the event that a Board of Supervisors were to be directly elected, the County Flood Engineer will be subject to both the Board and the County commissioners. The statute is not well- constructed. This proposal and ordinance 98 -085 are an attempt to make the statute fit local circumstances without violating the spirit of the Revised Code of Washington (RCW). Brenner asked if it would be easier to just refer to the County Charter by reference. Say that the bylaws are administered the same as the Charter. Dan Gibson, Prosecutor's Office, stated the proposal doesn't exactly mirror the Charter. The proposal says things are the same, except for the Executive's veto power. Nelson stated the Charter is the County's constitution. This may violate the County Charter, as the County's constitution. He asked the precedent. Gibson stated it doesn't violate the County constitution because the governing apparatus comes from the State statute for a separate municipal entity. For the purpose of ease of administration, the idea was to have it track the County system as much as possible. The one point of difference was the veto authority. Nelson stated he is concerned about removing the Executive's veto power. Weimer stated that was the understanding when the ordinance was passed in 1998. Craven stated there is a provision in the statute that allows direct election of supervisors. Therefore, she's been trying to structure things so it makes sense in case the board of supervisors becomes a board directly elected by the public. She has some concerns about imposing the role of the Executive, with some legislative authority, to a separate municipal government, governed by a separately - elected legislative body. Crawford stated the issue has not come up. He asked why they are doing this. He asked the intent and purpose of the veto authority in the County Charter, and when it's appropriately applied. He asked why it wouldn't be the same. County staff and administration have to implement the will of the Council and Board of Supervisors. Veto authority gives deference to the Executive's wisdom and judgment from an administrative stand point. The policymakers must have an overwhelming reason to go against the will of Natural Resources Committee, 11/12/2008, Page 3 I the administration. That veto protects the people from a swing vote in certain controversial 2 issues, influencing an administrative result with much impact. He asked the merits of the 3 proposal. He asked why they are doing this now. Craven stated this is part of her effort to 4 clean the books regarding the relationship between the Council and Board of Supervisors. 5 The policy choice is entirely up to the Council. The resolution was drafted as it is because it 6 reflects her understanding of the Council when the Council adopted Ordinance 98 -085. At 7 that time, the question was asked on the floor, the advice was given, and the vote was 8 taken. It seemed to make sense to spell out that understanding when cleaning up. 9 10 Crawford stated there is a question of the timing of de- coupling the Executive's veto 11 authority with a somewhat separate, but related, proposal to keep flood fund interest. He 12 doesn't know if they've discussed this proposal with the Executive or if the proposal is 13 appropriate. The administration didn't propose the change in its budget. It's interesting 14 that this is coming forward simultaneously. It looks orchestrated. Craven stated she can 15 see how it would look that way. She's been working on this project since the summer. She 16 has been working through all the documents with the Public Works Department and 17 Prosecutor's Office. This is when it happened. The Council may prefer to wait until the 18 budget is resolved. It's an unfortunate coincidence. 19 20 Kelly stated there was an audit, also. 21 22 Gibson stated there were clearly some aspects of budgeting that needed to be teased 23 apart. Ms. Craven undertook that work. Other things came along with that. They use the 24 terms `resolution' and `ordinance' interchangeably. They are repealing ordinances and 25 replacing them with resolutions for the sake of clarity and simplicity. That's not a bad thing. 26 Historically, those terms were used interchangeably as a result of the choice of the Council 27 in the 1990's. The Council said it was fearful that it wouldn't accurately change their hats. 28 Consequently, they wanted to make sure that approving something as a resolution that 29 should be an ordinance or vice versa is not fatal. Bob Woods, the former Council Policy 30 Analyst, was the source of the language that the Council eventually adopted, which says 31 that resolutions and ordinances are equal. Doing it that way with less attention to detail 32 means that they find themselves reversing course today in order to be more precise and 33 clearer. That's one of the things Ms. Craven has been cleaning up. That's okay, if it's 34 considered against the historical backdrop. All this came together because the Council 35 motivated it. There are ideas that are good ideas, such as teasing the budgets apart and 36 creating better clarity. There are policy choices embedded within these materials. 37 38 Weimer stated they are dealing with agenda items one and four. The Council passed 39 an ordinance in 1998 as the County Council, not the Board of Supervisors, even though the 40 Council controls the Flood Control Zone District. There was a discussion that the Executive 41 would not have veto power. The Executive's other powers under the Charter will remain. 42 Also, they're asking that the interest from the flood fund be reinvested to the benefit of the 43 flood fund and not the general fund. 44 45 The concern with having the bylaws be the same as the Charter is if the public 46 decides to have a separately elected Board. He asked if that separately elected Board could 47 pass a resolution changing the Executive's legislative function. There isn't any real need for 48 the Board to do it now, other than to uphold what the Council did in 1998. 49 50 Craven stated the interest allocation came up in the context of going through the 51 budget stuff. In talking about the subzone advisory committee changes in the first phase of 52 this project, there is strong feeling that the subzones should retain their own interest, Natural Resources Committee, 11/12/2008, Page 4 particularly in Birch Bay, because it and the other subzones are assessing themselves for a particular purpose. Crawford stated every advocacy group for every fund would probably like to keep their interest income. There is a broader County policy issues they must discuss in the long -term. Gibson stated that in drafting Ordinance 98 -085 from an administrative perspective, he intended that the Charter be mirrored in its entirety. However, the question was asked on the floor, and other legal counsel stated that was not the intent. The Council clearly adopted it with that question having been asked and answered. The administration was not unanimous on that point. (Clerk's Note: End of tape one, side A.) Brenner stated a resolution has no force of law, and an ordinance does. She doesn't always understand the difference between force of law and general policy opinion. The language refers to how they do the Charter, and it all depends on whether they want the Executive to have a veto. She's not comfortable making the Executive a part of the Board of Supervisors. She's very comfortable giving the Executive veto power. They don't form any boards together. It doesn't feel right to put the Council and Executive together that way, and then explain how they are different in the fine print. It's much clearer to say that the Council is the Board of Supervisors for legislative actions, and the administration, including the County Executive, is responsible for administering the legislative actions. Gibson stated they are dealing with two, co -equal branches of government. The State statute is written with a commissioner form of government in mind, which combines two equal branches of government. They want to avoid a situation in the legislation and administration of the flood control zone district affairs where they put those two equal branches of government in any relationship other than what the Charter provides by way of their equal status. In the past, they have operated with the implicit understanding that the way things will be done is exactly the way things are done according to the Charter, with the exception of the veto. This action makes that understanding explicit. Brenner stated she suggest language that says the County Council and County Executive make up the countywide flood district, and the County Council is the Board of Supervisors. Saying they are on the same board is strange. Gibson stated the State statute says that the governing body for the district shall be the Board of Supervisors. Make certain that it's clear that the governing board is those two branches of government, together. It's very awkward. However, they are seeking to make certain of how the Executive and Council relate in the day -to -day administration of the affairs of this district. They can't say that the Council and the Executive make up the district, because the district is municipal entity. Kelly asked if the County Executive ever gives up his veto authority, and if the Executive would ever give up his veto authority while not serving in his role as a member of the Board of Supervisors. The Board can make a decision, but the Executive's veto authority doesn't go away after the fact. Gibson stated they are defining what it means to be an Executive regarding the affairs of the district. Veto authority is written into the constitution for Whatcom County, but it isn't written into the law for flood control zone districts. Veto authority is not an inherent Executive prerogative. Therefore, they are left with the choice of whether or not they shall apply veto authority. That's the policy choice they are faced with. Natural Resources Committee, 11/12/2008, Page 5 1 2 Kelly asked what happens if the Board of Supervisors, including the Executive as a 3 part of that board, makes a financial decision that the Executive doesn't agree with. He 4 asked if the Executive could veto that financial decision after the vote, while acting in his 5 capacity as the County Executive. Gibson stated the Executive is not a voting member of 6 the Board. The Executive is the executive member of the board. As this is presented, the 7 Executive would not have veto authority. 8 9 Kelly asked if the Executive can veto a decision of the Board of Supervisors, 10 according to this proposed item. Gibson stated the Executive would not have veto 11 authority. 12 13 Crawford asked if the Executive has veto authority over the Board today. Gibson 14 stated the advice the Council received from the person advising it in 1998 at the time they 15 adopted it was that the Executive does not have veto authority. 16 17 Crawford asked what legal counsel would advise today. Gibson stated he would 18 advise trying to avoid this situation. Look for a way to make it work on a practical level. 19 Veto authority does not necessarily inhere in executive authority, although most 20 constitutions recognize that authority. 21 22 Craven stated these items are proposed to the Board of Supervisors to make those 23 decisions, preferably in a set of circumstances where there is not a constitutional crisis that 24 arises. They are looking for the Board of Supervisors to make that policy decision in the 25 abstract. 26 27 Crawford stated he suspects there is merit to a veto system. He suspects there is 28 merit in carrying that system over to the Board of Supervisors. He asked if they could 29 legally make a similar change with other language to clarify that the Executive has veto 30 authority. Gibson stated they could. 31 32 Nelson stated he strongly desires to maintain the existing, three -tier system. He 33 understands that they don't have to go that route. Question the public intent when it 34 passed the flood control funding mechanism originally. He would be concerned about 35 making this an exception to the Charter, especially when they could create a financial 36 impact to the public. He is comfortable with the Executive serving as part of the Flood 37 Control Board of Supervisors as a non - voting member. He suggests they amend Exhibit B, 38 section 100.xx.010, at the end the sentence, "...the County Executive shall have no role in 39 the legislative process of the Board of Supervisors, 40 legislative aetien ef the Beard." Gibson stated the removal of that language may imply that 41 the Executive has veto authority, because of the reference to the Charter. 42 43 Craven read Exhibit B, section 100.xx.010. If their intent is to allow veto authority, 44 don't leave in language that says the Executive shall have no role in the legislative process. 45 46 Gibson stated he agrees with Ms. Craven. The Executive authority is the exercise of 47 power in the legislative process. 48 49 Crawford stated they must first clarify the will of the Board regarding whether or not 50 the Executive will have veto authority. 51 Natural Resources Committee, 11/12/2008, Page 6 Brenner stated that she's okay with not giving veto power if that was always the intent. If they are going to stick with the original intent they've had all along, that intent is that the Executive didn't have veto power. It's not that important for the Executive. Nelson stated that wouldn't have been his intent had he known. The public intent when the public approved the fee was for the district to be administered according to the Charter, which allows the Executive veto authority to protect the public against an almost - even vote, especially if the task was difficult administratively or would have financial implications that would cause a negative impact to flood protection. It's an important legislative step. Weimer stated there was never a vote of the public on creating a flood fee or flood tax. That seems to be an urban myth. Brenner stated there was an advisory vote. Nelson stated he agreed, there was an advisory vote. Craven stated there are a couple of other things to be aware of in Exhibit B. She referenced section 100.xx.020. It adopts the County's purchasing and contracting policies by reference. That's important to clarify. She referenced section 100.xx.080. The statute requires that the Board of Supervisors adopt an annual budget. This section deals with the biennial aspect of the County budget. There isn't a provision under the statute that allows the district to go to a biennial budget process. She referenced Exhibit A, section 100.xx.020. As drafted, the interest funds would go to the district and subzones. Brenner asked if there is a significant cost to keeping separate funds. Weimer asked if there is a higher cost to leaving the interest in the funds, rather than letting it go to the general fund. Steve Oliver, Treasurer, stated most districts that the County manages are responsible for their own funds. He doesn't have any agreements with any other districts to provide those kinds of services, if that's the intent of the Council. He would have to analyze what those costs would be. It's a simple administrative process to create new investment accounts for the district and subzones. Weimer stated there isn't any difference. All the County administration would be the same. Oliver stated this language leaves open the possibility that the County may incur additional cost. He's not prepared to say whether there is actually a cost. Gibson stated the district presently does not do cash flow management. Mr. Oliver handles cash flow for the district. The question is the amount of additional work if Mr. Oliver had to do separate cash flow management for the district. Setting up the fund is easy. However, cash flow management for the district would constitute some additional work. Oliver stated he doesn't currently provide that service to any other district. Nelson asked how they assign administrative costs from the flood funds. Gibson stated the budget includes an item that covers legal services and other administrative and overhead costs. The district is being charged the overhead cost. Natural Resources Committee, 11/12/2008, Page 7 1 Oliver stated he recovers actual cost related to the administration specific to fund 2 investment. 3 4 Brenner asked if they anticipate more administrative work if the interest goes back 5 to the flood fund rather than the general fund. Oliver stated there wouldn't be a lot of 6 additional reporting on the investments, there wouldn't be many additional services. 7 Additional services would come from additional cash flow management that they're not 8 currently providing. 9 10 Brenner asked what would change. Oliver stated the Treasurer's relationship with 11 any district is standard. Districts are responsible for managing their own finances. 12 13 Brenner asked if that obligation of the Treasurer's Office would increase if the 14 interest is left with the fund. She asked if there is a downside to leaving the interest with 15 the fund. Gibson stated the Treasurer would provide cash flow and investment services to 16 the district, which he does with no other district that receives the benefit of its own interest. 17 If the district maintains its own interest, the question is why the Treasurer should provide 18 the service of cash flow management free to Flood Control Zone District and not the other 19 districts. 20 21 Oliver stated there is a larger policy question of the level of service he will provide to 22 all the districts. 23 24 Weimer stated the cash flow costs are already there. They are making it clear that 25 there is an opportunity to recoup those costs if the change makes those costs rise. Oliver 26 stated this language leaves that option open. 27 28 Craven stated language in section 100.xx.020 of Exhibit A allows the County to 29 recoup administrative costs to the Treasurer's Office by interlocal agreement. 30 31 Weimer stated those costs could become a part of the administrative cost allocation 32 that the flood fund already pays. 33 34 Nelson asked the reason for the change to the interest. Craven stated the subzones 35 are interested in retaining their own interest income. It is a significant amount of money. 36 It's a policy decision for the Board. 37 38 Fleetwood moved to recommend approval of item one, AB2008 -377, to the 39 County Council. 40 41 Motion carried unanimously, 42 43 Fleetwood moved to recommend approval of item four, AB2008 -378, to the Board 44 of Supervisors. 45 46 Motion carried unanimously, 47 48 49 OTHER BUSINESS 50 51 There was no other business. 52 53 Natural Resources Committee, 11/12/2008, Page 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 ADJOURN The meeting adjourned at 10:55 a.m. Jill Nixon, Minutes Transcription ATTEST: Dag BrOwn -�a ,7'o �l Firk - . it _ lk STATE OF '• h'!MGI�•' WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Carl Weimer, Committee Chair Natural Resources Committee, 11/12/2008, Page 9