CHARTER REVIEW BOARD

CITY HALL, 100 LOCKVILLE ROAD

THURSDAY, APRIL 1, 2010

REGULAR MEETING

7:00 P.M.

1. ROLL CALL. Mr. Hackworth called the meeting to order at 7:00 P.M., with roll call as follows: Mrs. Chapman, Mr. McKinney, Mr. Hackworth, Mr. Gray, Mr. Kramer, and Mr. Donathan were present. Mr. Holstine was absent due to a death in the family. Others present were: Phil Hartmann and Lynda Yartin.

2. APPROVAL OF MINUTES OF March 4, 2010, Regular Meeting. Mr. Kramer moved to approve; Mr. McKinney seconded the motion. Roll call was taken with Mr. McKinney, Mr. Hackworth, Mr. Donathan, Mr. Gray, Mr. Kramer, and Mrs. Chapman voting “Yea.” Motion passed, 6-0.

3. COMMUNITY COMMENTS. None.

4. SCHEDULED MATTERS:

A. Complete review and discussion of Charter Article IV beginning at Section 4.13.

Section 4.13. Police and Fire Protection. Mr. Hartmann stated this was fine as written.

Section 4.14. Police Department. Mr. Hartmann stated this was also fine as written and he had no recommended revisions.

Section 4.15. Fire Department. Mr. Hackworth stated the City does not have a fire department. Mr. Hartmann stated this would just leave the option open should the city ever want to create a fire department.

Section 4.16. Building Department. Mr. Kramer questioned why we had this section because it seemed like it could fit in with Section 4.17. Mr. Hartmann stated he felt the reason it was separated out is because the building department has always been treated a little differently than other departments because it has been one of those state-wide concern issues versus home rule. Mr. Hartmann stated it could probably be consolidated into Section 4.17, but it was probably better to leave it as is because under the most recent Supreme Court case it was determined the building department is regulated by the State and cannot be altered locally.

Section 4.17. Other Departments. There were no recommended changes.

Section 4.18. Direction by Manager. There were no recommended changes.

Mr. Hackworth stated that completed the review of Article IV.

Mr. Hackworth stated Mr. Hartmann had provided a copy of Articles I, II, III, and IV showing revisions that had been discussed by this Board, such as adding a new Section 5 to Article IV, defining what ordinances, resolutions, and motions were, etc. He stated he would like to review this to see if there was anything that anyone would like to discuss again, make any changes to or reconsider.

Article I. Incorporation, Powers, and Form of Government.

Mr. Hackworth stated no changes had been made to this Article.

Article II. Council.

Section 2.01. Number and Term. There were no recommended changes.

Section 2.02. Compensation. Mr. Hartmann stated the only change was to address the Attorney General opinions relating to health insurance and possibly other items that could be viewed as possible in term pay raises and exempting them.

Section 2.03. Meetings. Mr. Hartmann stated he had changed the word “municipality” to “City” throughout the charter. He stated he had taken out any issues relating to the Mayor and created a new section dealing with the Mayor. He stated he had also created a new section dealing with the City Manager.

Section 2.04. Powers. Mr. Hartmann stated this section had not actually changed, he had just taken the language dealing with veto and put it in the Mayor’s section.

Section 2.05. Form of Action by Council. Mr. Hartmann stated he had added definitions for motions, resolutions, ordinances, etc., in this section. He stated he had indicated that resolutions would become effective immediately although he was not sure if that was the final recommendation of this Board. Mr. Hartmann further stated currently resolutions must have three readings and are not effective for 30 days. He stated since resolutions are less formal, in most places they are effective immediately. Mr. Hartmann stated the Board had discussed using three-fourth’s of Council or a hard number and he had left it as three-fourth’s. Mr. Gray stated the charter states at the beginning that council’s actions would not be invalidated if they did not use the correct form, and he questioned if they did something as a resolution and it should have been an ordinance, what would be the result. Mr. Hartmann stated the form language is found in almost every charter, and is sort of protective language for council. He stated he felt if they were doing this too intentionally to avoid something, the courts would overturn it just as they have done with emergency ordinances that clearly were not emergencies. He further stated the courts have tightened up what cities have to do to pass emergencies, and if they were doing it intentionally the courts generally are not going to let them get away with it. Mr. Hartmann stated that hopefully the law director would not let them do that. Mr. Hartmann stated the question would be that if the resolution became effective immediately if there were still the right of referendum, and he did not believe there was. He stated this was an area that was not totally clear. Mr. Hackworth stated in his opinion, resolutions should be used for things like appointments to boards, supporting a local issue, etc. Mr. Hartmann stated as an example though, some cities use resolutions for contracts because they are temporary in nature, but those can be some large figures and something to be concerned about. Mr. Donathan inquired if they should define “temporary” or qualifying it. Mr. Hackworth stated council adopts a budget for the year and that budget has money set aside for paving the roads, to buy salt, etc., and he did not have a problem with those being passed as a resolution. Mr. Hartmann stated that was correct, they had already basically approved those by adopting the budget. Mr. Hackworth stated what his concern was with resolutions being effective immediately was for annexations and other projects that may be controversial. He stated he felt those should be by ordinance with three readings. Mr. Donathan stated the draft stated there would be two readings for ordinances and Mr. Hartmann stated he had put two readings in there after the last discussion, but he would change it back to three readings if that is what everyone felt was most appropriate. Mr. Gray stated he did not have a problem with resolutions being read one time, but it was the point of them being effective immediately that concerned him. Mr. Hartmann stated he tended to agree that if a resolution would be effective immediately, it should be read at least twice. Mr. Gray stated with one reading and the 30-day period before it was effective there would still be time for people to voice their concerns. Mrs. Yartin stated the board had discussed making items passed on the consent agenda effective immediately and any resolution that was passed on that agenda would then be effective immediately. All other resolutions on the regular agenda could require one reading with the 30-day effective period, two readings, or whatever the board determined appropriate. Mr. Hackworth stated he would rather do that because anything on the consent agenda could be removed at the request of a council member, a citizen, or anyone. Mr. Gray stated he like that you could pull it off the consent agenda and it would then apply to the other rule. Mrs. Chapman stated she could see why appointments, etc., should only have one reading, but she questioned how the average citizen would know they could have something removed from the consent agenda. Mrs. Yartin stated there is a statement on every agenda that states any council member or resident may request an item be removed from the consent agenda and placed on the regular agenda. Mr. Gray questioned if the board had come to a conclusion on if they were going to stay with the hard number of six to be able to suspend the rules, etc., or would it be a hard number of those present. He stated to him this was a big concern because if you really need to get something done and there were two council members on vacation, you could not do it. Mr. Hartmann stated that is a big issue and he would remind everyone that a voting member can abstain from voting for no reason so one person could control the vote without ever voting. Mr. Hartmann stated to summarize the discussion thus far there seemed to be a consensus for resolutions to have two readings and be effective immediately, and ordinances to remain with three readings and a 30-day waiting period. With regard to the number for voting, Mr. Hackworth clarified that currently you need six members to suspend the rules. Mr. Gray stated his concern was if two council members were on vacation or out of town he did not want the process to stop. Mr. Kramer stated he did not want the process to stop either, but he did not want three people to be able to pass an ordinance either. Mr. Gray stated it depended on how important that ordinance was, because what if it was important and you only have four council members present. He stated he did not, however, think any ordinance should ever pass with less than four votes. Mr. Hackworth stated the way he was interpreting this paragraph was that less than four could pass an ordinance. Mr. Gray stated his concern was if something had to be done immediately and only four were present, right now there is no way to get that done unless they have three meetings in a row and then they can’t declare the emergency because they don’t have six votes. Mr. Gray stated he agreed that legislation should have at least four votes to pass because that is a majority, but in other things he was not sure that it shouldn’t be of those present. Mr. Hackworth stated he had a problem with it if it were a minority of council. Mr. Kramer stated Mr. Gray was talking about suspending the rules, and he understood that, but he did not like either one to be able to be accomplished with only three votes and he felt it would be a horrible mistake to do anything, whether suspending the rules or passing an ordinance, with less than four votes. Mr. Gray stated he did not understand where they thought it could be done with three votes, and Mr. Kramer stated if the wording required three-fourth’s votes, then three-fourth’s of four would be three. Mr. Gray stated he that could be a quorum to do business, but this Board could lay out what it is; if they wanted it to never be less than four they could say that, they do not have to be tied to three-fourths or two-thirds or whatever. Mr. Kramer stated that was his point in the first place, he would like to get away from the whole three-quarters thing and have a hard number so they could not do something with three members. Mr. Gray stated he was okay with that. Mr. Hackworth stated for emergency he still liked the idea of requiring six votes. Mr. Gray stated he was okay with that, but by suspending the rules you weren’t changing anything, it would still require a majority to vote, but you could still do everything in one night, go through the process and get it done. Mr. Donathan clarified that currently to suspend the rules it requires six votes, but it can be adopted by a majority vote. Mr. Gray stated that was his point, if an emergency came up while some council members were on vacation or whatever, like the culvert replacement, and council had to move money they would run into an issue. Mr. Hackworth stated then Mr. Gray’s issue was with the suspension of rules and he did not feel he had a problem with that if you had at least four vote for it. Mr. Hartmann stated he would add in language for suspension of rules that it would require three-fourth’s of the voting members, but not less than four. Mr. Kramer clarified that the number of readings would remain at three because the suspension of rules would be made easier. Mr. Hackworth summarized that the recommendations would be to lower the number of votes required to suspend the rules to four, ensure that language was added that nothing could be done with less than four votes, keep the number of readings at three for ordinances, consent agenda items would become effective immediately and council would set the dollar amount for the consent agenda by ordinance, and resolutions would require two readings and become effective immediately. Mr. Hartmann stated that was his understanding as well. Mr. Hackworth stated he would like to review the subsection regarding appropriation legislation at the next meeting when the Finance Director would be present. Mr. Hartmann further stated he would look into the publication requirements to see if that was required by the State or was a local determination.

Section 2.06. Officers. Mr. Hartmann stated at the first meeting of the year council selects their president and vice president pro tempore and they do not have the ability to change that for the year. Mr. Kramer stated his concern is that the Mayor does not have a vote on any council business, however, if he is not there and the president of council effectively becomes the Mayor and gets to vote. Mr. Kramer stated he did not see why if the Mayor does not get to vote, that the Acting Mayor would get to vote. Mr. Donathan stated also especially if the Acting Mayor gets to vote and also gets the veto power. Mr. Hartmann stated that the president of council would basically just be running the meeting, and the Mayor could control a vote by not showing up and taking away the president’s right to vote. Mr. Kramer stated he understood that. Mr. Gray stated he did not feel a council person should lose their right to vote as a council person if they were Acting Mayor. Mr. McKinney stated he felt that person should have the right to run the meeting, but he did not feel that should be the same as the other powers of the Mayor. Mr. Hackworth stated if the Mayor were on vacation, the Acting Mayor would have the right to vote and to veto. Mr. Gray stated that even if an Acting Mayor would veto something, Council has the right to override a veto, and even if they would not have enough votes to override a veto, they could reintroduce it. Mr. Gray stated he just did not see this as an issue. Mr. Kramer stated he agreed with what Mr. Gray was saying, but his problem was with the way it was worded in the Charter and he felt it should be made as clear as possible. Mr. Hartmann stated the issue has been brought up that should the Mayor be at odds with the Council president, he could be absent, appoint them as Acting Mayor, and prevent them from voting. Mr. Hartmann stated that he felt that was too much of a political power for the Mayor to be able to play with votes that way and take away a council member’s right to vote. Mr. Hartmann stated the council member should retain their power because they were elected to do that, and he felt if you were to take away that elected power you had to be very specific. Mr. Gray stated he felt there should be a clarification on when the Mayor is absent, and Mr. Hartmann stated he could prepare language defining an absence. Mr. Hackworth stated it should be something showing where the Mayor submits a letter and officially transfers power to the Acting Mayor. Mr. Hartmann stated he would draft some language for the Board to review at their next meeting. Mr. Hackworth stated he also felt the reorganization of Council should remain with the first meeting in January of each year and the Board members concurred.

Section 2.07, Organization and Rules. There were no suggested revisions to this section.

Section 2.08, Amending Legislation. There were no suggested revisions to this section.

Section 2.09, City Employees. Mr. Hartmann stated this should be identical to what we currently have in Section 4.05 and he had erroneously included language from a previous discussion. He stated the language regarding malfeasance had been omitted and it was a question of whether this Board wanted to keep that in. Mr. Hackworth stated as he understood it, the Board would like that language included. Mr. Hartmann stated he would take care of cleaning this section up to be as it should be.

Article III, Mayor

Section 3.01, Term. There were no suggested revisions to this section.

Section 3.02, Legislative Powers.

(A) Power to Preside over Council Meetings. Mr. Gray questioned if the language regarding the President of Council presiding over the meeting in case of the temporary absence of the Mayor, when they were not Acting Mayor. Mr. Hartmann stated he could prepare some draft language for the Board to review at their next meeting.

(B) Veto Power. Mr. Hartmann stated he would recommend instead of using the two-third’s that the hard number five be used in this section so that five council members would always be required to override the veto. Mr. Hartmann stated the only time that may be a problem would be if there was an open seat on Council. Mr. McKinney inquired if the Board was going to consider a line item veto. Mr. Gray stated he considered the line item veto as a way to save money because the Mayor could veto line items in the budget. Mr. Hartmann stated it was the creation of a little more power for the Mayor. Mr. Hackworth stated currently the Charter requires the City Manager to submit a budget to the Council no later than 35 days before the end of the year. He stated Council then has until the end of the year to approve that budget and if they fail to reach a majority to approve it, the budget then goes into effect. He stated his question would be what the Mayor would veto. Mr. Kramer inquired if this would mean you could veto just a portion of an ordinance and not the whole thing, and Mr. Hackworth stated he did not like the idea of vetoing one or two words in an ordinance that could change the whole meaning of the ordinance. Mr. Gray stated in the case of the budget however the Mayor could veto line items. Mr. Hackworth stated he would like to see something in writing because he wasn’t sure he could support something like this. Mr. Hartmann stated he would look into this and see if other cities use the line item veto and how it works.

Section 3.03, Judicial Powers. Mr. Hackworth inquired what would happen if the State did away with Mayor’s Court, and Mr. Hartmann stated in that case this section just would not be applicable.

Section 3.04, Other Duties. There were no suggested revisions to this section.

Section 3.05, Compensation. Mr. Hartmann stated he would include the language regarding the health insurance as discussed for Section 2.02.

Section 3.06, City Employees. Mr. Hartmann stated he would make this section the same as in Section 2.09, and it would mirror what was in the current Section 4.05. Mr. Hackworth stated he did not have a problem with the Mayor expressing an issue with the City Manager about an employee, but he did have a problem with individual council members going to the City Manager complaining about anything and everything. Mr. Hartmann stated the reason this section is included is to avoid council members putting employees other than the City Manager in an uncomfortable position. He stated that is why you have a City Manager; if you are upset with how employees are doing something you should deal with it through the City Manager.

Mr. Hackworth stated in looking at the time, this would be a good place to stop this evening.

5. CHAIRMAN. Mr. Hackworth stated at the next meeting the Board would continue the review of the proposed revisions beginning with Article IV. Mr. Hartmann stated he would provide a copy with the revisions decided upon tonight through Article III, as well as, a memorandum reviewing Articles V and VI, and information regarding the line item veto issue. Mr. Hackworth stated he would like to ensure that the Finance Director would be able to attend the next meeting to discuss finance issues as well.

6. OTHER BUSINESS: No other business was brought forward.

7. ADJOURNMENT. There being nothing further, Mr. Donathan moved to adjourn; Mr. Kramer seconded the motion. Mrs. Chapman, Mr. Hackworth, Mr. McKinney, Mr. Donathan, Mr. Kramer, and Mr. Gray voted “Aye.” Motion carried, 6-0. The Charter Review Board adjourned at 9:03 P.M., April 1, 2010.

RESPECTFULLY SUBMITTED:

_______________________________

Lynda D. Yartin, Municipal Clerk