HomeMy WebLinkAboutPublic Works July 1 19971
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WHATCOM COUNTY COUNCIL
Public Works and Capital Projects Committee
July 1, 1997
The meeting was called to order at 11 a.m. by Committee Chair Barbara Brenner in the
Council Committee Room, 311 Grand Avenue, Bellingham, Washington.
Also Present:
Marlene Dawson
Tom Brown
Absent:
None
COMMITTEE DISCUSSION AND RECOMMENDATIONS TO COUNCIL
1. ORDINANCE ESTABLISHING A CODE OF ETHICS REGARDING
CONTRACT INTERESTS FOR COUNCIL MEMBERS (AB97 -187)
Brenner stated that there were two amendments to be made before the discussion.
Page 201, line 5 amended as:
"Be it further ordained that no County Council member who votes for a contract shall be
employed by the recipient of the contract in any capacity for two years after leaving
office."
Page 201, line 7 amended as:
"Be it further ordained that the prosecutor's office will initiate enforcement of the
ordinance."
Brenner explained that the ordinance was done this way because she did not want there to
be subjective kinds of decisions made. If someone accepts employment and if the County needs
to clarify what employment is, she's willing to do that. If that person also voted or lobbied in
any way for a contract that is related to the same company, it is automatic. There are many that
are subjective, but there are also many that are not and are just black and white. If the County
needs to further define employment, she's willing to do that because one of the things that was
brought up was sub - contracting and things like that. Brenner doesn't consider that employment.
When she talked about it with Senior Deputy Prosecutor Dan Gibson, he said he didn't consider
that employment. Do we need to put something like that in there for clarification or is it
assumed?
Nelson stated that given recent experience he felt that nothing could be assumed. As he
looked at it he distinguished between employment and independent contract. His concern was
not to give it any type of chance to be interpreted incorrectly.
Public Works Minutes, 7/1/97, Page 1
I Gibson stated that Nelson raised a good point because though the common distinctions
2 between employment and independent contractor is, for example, that if you are operating as a
3 consultant and you are doing some public relations work on a contract for $5,000 or $10,000, is
4 it intended to cover that or not? The person is an independent contractor and at the same time
5 the person looking at it from the outside might say "they are employed ".
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7 Gibson offered the following amendment:
9 "No sitting council member who votes for a contract shall be employed either as a
10 regular employee with a fixed salary or wages or as an independent contractor ".
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12 Brenner stated that she would like to add a sentence that the ordinance does not include
13 sub - contracting. Her bigger concern was that if you are going to sub - contract, you are going be
14 dealing with an already existing business. If you go out and get an independent contractor, you
15 could, in effect, be taking someone with no experience or no credentials and say "I'm going to
16 create this position for you as an independent contractor as a reward ", even if it is not said.
17 However, if someone is already established in business with supplies, that is not a problem if
18 they don't have any control over where the sub - contractor goes.
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20 Gibson stated that he thinks the distinction that Brenner is suggesting is that if you are a
21 business and you sub -out to a lot of different businesses, there's tough line to draw. For
22 example, Combined Treatment Services will contract with relatively small consulting operations.
23 They may have two, three or four clients, some are already existing or will come into existence.
24 The challenge is that we operate with certain examples in mind, and the problem is that we can't
25 anticipate all the examples.
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27 Brown proposed that under the first `Be it further ordained" it says "by state law
28 RCW42.23.030 and 42.23040 ", he would like to insert "42.52.070 and 42.52.080 ". He
29 recommended that the Council adopt the code of ethics for State Legislators, State elected
30 officials.
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32 Brown stated that his intent is to adopt state standards for elected officials. Item No. 2
33 states that "no person who has served as a State officer or State employee may, within a period
34 of two years, following the termination of employment, have a direct or indirect or authorized
35 employment ".
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37 Brenner stated that the problem is that when it talks about Municipal Officers in the State
38 Law, it does not deal with the two year limit. It only deals with the two years under the sections
39 that Brown mentioned and these sections only apply under state law to state employees, not local
40 employees. She went through this with Dan and it was his interpretation that unless the Council
41 adopts it locally, it does not apply to County elected officials.
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43 There was a discussion of the issues of substitute ordinances.
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Public Works Minutes, 7/1/97, Page 2
I Gibson reviewed the two portions of the statue Brown referred to 42.52.080 and
2 42.52.070. 42.52.080 talks about prohibitions within a one year period or time and then in a
3 subsequent section, it also talks in a slightly different context of a two year period of time. It
4 says that it is a problem if the contract or contracts have total value of more than $10,000 so
5 there are a number of limitations involved. He stated that if you were to take Brown's
6 suggestions then it would require that you revisit the subsequent portion where it says "shall not
7 be employed by the recipient of the contract in any capacity for two years ". The question is ,
8 contracts or $10,000 and when it says two years, how does that fit with the one year that is stated
9 on the 42.52.080?
10
11 Brenner stated that she would be willing to use the state law exactly as it is. She asked
12 for further clarification of the one year /two year issue.
13
14 Gibson stated that the one year says "no employment or receive compensation from an
15 employer ". Under sub 2 it says "no person who has served as a senior officer may, within a
16 period of two years, following termination of state employment, have a direct or indirect
17 beneficial interest in a contract or grant that was expressly authorized or funded by specific
18 legislative action in which the former state officer or state employee participated ".
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20 Brenner stated that it sounded as though for one year you could not accept any
21 employment and for two years you could not accept either gifts or compensation or any
22 employment directly related to the contract.
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24 Gibson stated that the third part of this would be the task of changing the wording of
25 State law to read "County officer, County employee ". This is a separate issue, a format issue.
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27 Under number three it says "without any time limitation, if you are getting the job as
28 compensation for the way you voted" that is improper.
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30 Brenner asked if it's decided to do an ethics board, does State law talk about setting up an
31 ethics commission board?
32
33 Gibson answered yes. State ethics boards, are addressed within 42.52.310. 42.52.310 is
34 composed of nine members, two Senators and two members of the House of Representatives.
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36 Brenner stated that this couldn't be used.
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38 Gibson stated that a board could be set up next year and make it non - partisan and could
39 have elected officials such as Treasurer, Auditor.
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41 Brenner suggested setting up an ethics commission similar to the Charter Review
42 Commission, and have people elected at election time for three years, with a two -term limit. So
43 the public votes on these people and therefore it is out of politics. If you have elected
44
Public Works Minutes, 7/1/97, Page 3
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Brenner stated that an Ethics Commission would be set up to prove whether or not there
was a violation.
Nelson stated that he didn't have a problem with what Brenner was saying
philosophically. The public always had that ability through a recall if they have difficulty with
the ethics of an individual elected official. go through a recall process to eliminate that person or
get them out of office.
Brenner stated that she wanted to hear the pros and cons and asked what would be wrong
with setting up an ethics commission with members to be elected rather than appointed.
Gibson stated that it would be setting up a process different from the Constitution. The
Constitution outlines the process for taking care of violations.
Brenner stated that she's are talking about an ethics commission that decides whether
there is a violation, not that enforces it.
Brenner stated that citizens are fine. Appointing doesn't work for Congress, it doesn't
work for doctors, and it doesn't work for lawyers. When they police themselves, they tend to
whitewash over everything.
Nelson gave a brief explanation of why, for example, on the ethics commission for
Lawyers and so forth, you want people who practice law because you want people who
understand the situations that lawyers face. You want citizens so that it is not strictly lawyers.
You want a combination so that you are combining different perspectives.
Brenner asked about combining elected officials who are not from the Executive or
Legislative branches with citizens?
Dawson stated that what's being discussed here is professional conduct.
Brenner stated that is a code of conduct not an ethical problem.
Dawson stated that ethics is professional conduct.
Brenner stated that if Dawson wanted to do a code of conduct for how elected officials
are to behave at meetings, she could go ahead and do that. Ethics are a whole different thing.
She stated you can be blunt and irritating to somebody and that is not unethical and you can
make someone uncomfortable and that is not necessarily unethical.
Dawson stated that there is a wide range of behavior and behavior is ethics.
Brenner stated that behavior is not ethics — look it up in the dictionary. It is most
certainly not ethics.
Public Works Minutes, 7/1/97, Page 4
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Dawson stated that she looked it up and it is behavior. Some behavior is more severe
than others.
Brenner stated that ethics and behavior are two different things. They may cross over at
times, but they are totally different things. She stated that you can have behavior that is
unethical and you can have behavior that is ethical. You can also have conduct that is either.
You can make a thing about conduct that has nothing to do with ethics.
Dawson stated it refers to standards of conduct.
Brenner stated that Dawson's refers to standards of conduct and that she was mixing
conduct and ethics. It is not about if you personally don't like someone's style.
Brown offered the possibility of adding under the second "further ordained" that all
County elected officials are subject to RCW42.52.080 and shall be considered state officers.
Gibson stated that language could be drafted that would translate 42.52.070 and
42.52.080 to apply to County government. Wherever it reads "State Officer, we could substitute
"County employee ". He stated the Council needs to define "ethical behavior ". It is something
that, in this particular instance, State Legislature defines. What we have to avoid are conflicts
with Constitutional prohibitions and State prohibitions on these same matters. Nothing, so far,
has raised real problems from a Constitutional standpoint. The Council needs to be careful that
it does not restrict the right to contact so severely that it runs afoul of Constitutional prohibitions.
One or two years has passed muster elsewhere and Gibson expect it would pass muster here.
There was discussion regarding open vs. executive session discussions.
Brenner stated the she would like to amend the ordinance by keeping the sections Tom
Brown mentioned, and putting them in where appropriate instead of the language that is
currently in the ordinance and keep lines 1, 2 and 3 on page 201 and eliminate lines 4, 5 and 6.
She also wants to state that County elected officials shall be subject to state law 42.52.070 and
42.52.080 subject Dan Gibson's review providing that there is an ethics committee or board set
up to make the determinations. The board should be made up of citizens, to be appointed by the
County Executive and approved by the County Council. Five appointees with terms of five
years with the ability to be appointed one time. Members will be unpaid and must be Whatcom
County registered voters.
Dawson again voiced concern regarding conduct.
Brenner stated that if Dawson wants to do a separate code of conduct for Council
members, that its fine. Brenner would never support a majority of Council members deciding
who violates.
Public Works Minutes, 7/1/97, Page 5
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There was discussion.
Brenner stated that she felt a citizen's committee should make the determination, not
Council members.
(Clerks Note, end of tape 1, side A)
Gibson stated that the committee can direct staff to pull state law for review and bring
back information at a later date.
Brown moved that the Council adopt, as part of the Ordinance RCW Section 42.52.070
and 42.52.080 and that Dan Gibson review it to see if there are any areas which may be in
conflict with applicability to the Council. He is not sure if #7 and #8 need to be taken out.
Brenner asked if Brown wanted to amend that to say `Be it finally ordained that any
violation of this ordinance may constitute immediate termination of the contract ".
Gibson suggested that the Council may want to think about what it intends to do about an
ethics commission or an ethics board?
Brenner stated that she felt they should talk about paid and unpaid members.
Dawson stated that the whole idea should be reviewed by the entire Council. The
contract issues can be run through the Auditors and Prosecutors offices.
Brenner stated that you are not always able to cross every "T" and dot every "I" and
since we are going to be dealing with issues besides contracts, an ethics commission should be
set up. A comprehensive finished product should be sent to the Council. She supports the idea
of an ethics committee and feels time should be spent making a determination of the geographic
makeup, whether we need someone with a legal background, who should be on the commission
and whether it is paid or unpaid.
Brown stated that he would write up a proposal and that it would centered around five
members, one from each district, two from at large, a three year term, a one term renewal and
positions to be selected by members of the Council.
Brown asked Mr. Gibson to look through the points that were proposed and that it be
scheduled next two weeks.
Brenner said she did not have any problems with the consequences of the violation of
Section 2 A, B and C, except that she wants to see all determined by the Ethics committee, not
by Council members.
Brenner moved to direct staff to substitute lines 4, 5 & 6 with State Law 42.52.070 and
Public Works Minutes, 7/1/97, Page 6
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42.52.080 as it is applicable to the County.
Motion carried unanimously.
Brenner moved that lines 7 & 8 be changed to:
"Be it further ordained that an Ethics Board may set the penalties for violations of
this Ordinance, which may include termination of the contract as determined by
an Ethics Board ".
Gibson cautioned that with regard to the termination of the contract, there is a strong
legal aspect to that. An ethics commission may determine that a Council member has violated
the Ethics Ordinance, but he cautioned against having that result in an automatic termination. A
termination would have to be measured in terms of what was the particular influence of the
Council member in this contract. He stated the determination of whether or not to terminate the
contract should be made elsewhere. The Executive should make that decision because the
Executive is charged under the Charter with carrying out the County's business.
Brenner stated that her only concern would be if we do something like this, she does not
want it to be up to the Executive to make a determination. The first step would have to be a
recommendation coming from the ethics board.
Gibson stated that the question is, if an ethics commission finds that a violation has been
made, that would be a public decision. We have an Executive then who is looking at a public
decision who is going to have to make a decision on contract if you have a public decision that
there has been a violation. There is accountability.
Dawson stated that if a member of the public or an individual Council member feels that
a contract has been violated, they can present it to the Council. She thinks the Council is in a
position to determine that.
Brown replied that this would remove any appearance of bias and also takes away the
notion that the other members of the Council may, in some fashion, be trying to muzzle
somebody.
Brenner stated this is a pretty heavy duty legal thing. She thinks it would be best to have
a third parry do it, not us.
Gibson said that in 42.52, it places the onus on the Attorney General to seek, if in fact the
Attorney General is inclined, rescission of the contract through a Superior Court action. This is
the state model. There is not a direct connect between ethics violation and the rescission of a
contract.
Brown stated that it would probably be more expedient and cost effective to have the
Public Works Minutes, 7/1/97, Page 7
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Executive make the decision, but you may still have to go to court after that.
Dawson asked if there had been any contract violations.
Brenner replied she didn't think so. She stated that she thinks there has been "feathering
the nest" going on for years. She offered no examples and didn't want to be specific. She is sure
that if you were to research it, you would find examples of people who had worked on lobbies
and or voted for contracts and had then gone to work for the companies they have done that for
immediately after leaving office.
Brenner stated that direction has been given and it will be back in two weeks.
OTHER BUSINESS
1. ANNUAL PRESENTATION OF THE INTEGRATED VEGETATION
MANAGEMENT PLAN IN ACCORDANCE WITH ORDINANCE 94 -044
(AB97 -243)
Dick Prieve, Maintenance and Operations (M &O) Superintendent talked about budgetary
changes. The total dollar amount went down about $15,000. The vegetation management plan
went down slightly. A no spring zone had been honored in Point Roberts and it has never been
put into our ordinance, but was put in the plan.
Brown moved to approve this as part of the budget.
Motion carried unanimously.
2. DISCUSSION REGARDING CHIP SEAL ALTERNATIVES (AB97 -236)
Brenner asked if there was any documentation that shows how long chip seal extends the
life of the asphalt and how often it has to be redone.
Prieve replied that generally speaking, asphalt will cost 4 times as much as chip seal.
You can usually get twice the life out of asphalt so you are talking about a 50% savings.
Brenner stated that after Axton road was chip sealed, at least 12 calls were received from
bicyclists complaining about rocks flying up from cars.
Prieve replied that most calls come immediately after chip sealing, before there has been
a chance to sweep.
Brenner asked if a cost could be worked up on what it costs to asphalt, what it costs to
chip seal and the life of asphalt and chip seal — different costs.
Public Works Minutes, 7/1/97, Page 8
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Prieve replied that they try to do 120 miles of chip seal per year to keep on the rotational
program and we usually look 6 to 8 years.
Brenner asked there was any information on the kind of damage comparatively chip seal
does to automobiles as compared to asphalt.
Prieve replied that so far this year there have only been 14 complaints in the 45 miles that
have been done. All speeding complaints about trucks should be brought to his attention and it
will be taken care of.
Brown stated that the State contract price for putting down chip seal or putting down
asphalt, it was cheaper to use asphalt than to contract out for chip seal. Tort liabilities, for the
State, would go up three to four times the amount for chip seal. How do the 4 to 1 costs figure.
Prieve replied that the costs given are for a single list of chip seal versus a 2 -inch overlay
of asphalt.
Brenner asked for more discussion on chip seal versus asphalt.
AnJOITRN
The meeting was adjourned at 12:10 p.m.
Valery W. Anderson, Transcriptionist
ATTEST:
Dana Brown - Davis, Council Clerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Barbara Brenner, Council Member
Public Works Minutes, 7/1/97, Page 9