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HomeMy WebLinkAbout13.F.1. Approve Minutes of November 21, 2006 I ~. F: J. 470 U.S. Bank Plaza 200 South Sixth Street l"![;'lti~I;;!rri!~![illii~"';;;d!I~~i~~t~~~~~i~ Minneapolis MN 55402 '..., .",~" ,.,!l..T"~'""""" ,~,..".," (612) 337 9300 telephone L.j~~::~illll~lf'lllll~~~~~~!~!l (612) 337~931O fax CHARTERED www.kennedy-graven.com MEMORANDUM TO: Mayor and City Council ~ FROM: Jim Thomson, City Attorney DATE: December 28, 2006 RE: City Council Voting Questions You asked me to address the following questions pertaining to the vote on the November 21, 2006 motion to adopt Resolution No. 6539 regarding the compensation policies for the fire department: 1. How should a councilmember's vote be recorded if the councilmember is silent when a voice vote is taken on amotion? 2. When is it appropriate for a councilmember to abstain from voting? . l. 3. What is the effect of an abstention in determining the outcome of a vote on a matter? Recordinl! of Votes Section 2.04 of the City Code states that Robert's Rules of Order governs all procedural matters at Council meetings except as otherwise provided in the City Code or state law. With respect to recording of votes, Roberts Rules of Order (10th ed. 2000) states: "a vote on a motion is normally taken by voice. . . the chair first calls for the affirmative vote, and all those in favor of the motion so indicate in the manner specified; then [the chair] calls for the negative vote." (Roberts, page 43) "To abstain means not to vote at all, and a member who makes no response... abstains just as much as one who responds to that affect." (Roberts, page 43) Thus, according to Roberts, silence during a voice vote is the same as abstaining. A member has a right to change his or her vote "up to the point it is finally announced" by the chair. (Roberts, page 46) After the chair announces the vote, a member can only change a vote "by unanimous permission of the assembly . . . granted without debate." (Roberts, pages 46 and 395) Thus, in a situation where a council member remains silent during a voice vote but the mayor announces the outcome of the vote with no abstentions, the council member should immediately inform the mayor that the vote was announced incorrectly. Failure by the council member to correct the announcement of the vote means that the council member can later correct the vote only with the unanimous permission of all council members. Rieht to Abstain The right to abstain works to satisfy those choosing not to vote. (Roberts, page 46) Members who have an opinion on a question should express that opinion by their vote, but members cannot be , . compelled to vote. (Roberts, page 394) The City Council Meeting Procedures, which are adopted annually by the City Council, also address the abstention issue. Paragraph 4 of that document states: "Council members should not abstain from a vote simply because they do not wish to take a stand on an issue." In a situation where a council member has a conflict of interest, the council member is required to abstain from voting. In other situations, there is nothing that requires a council member to vote on all matters that come before the City Council. Council members need to keep in mind, however, that they are elected to represent city residents on matters that come before the City Council. Attending council meetings and voting on matters are the most significant duties that an elected official undertakes. Consequently, council members should voluntarily abstain from voting only on an infrequent basis. Effect of an Abstention By voluntarily abstaining from voting on a matter, a council member is essentially acquiescing in the outcome of the matter by deferring to the other members of the city council. The effect of an abstention on the outcome of a vote depends on the particular situation. For example, if a council member voluntarily abstains and the other city council members vote 2-2 on a motion (or 3-1 in a situation where a 2/3 vote is needed), the practical effect of a voluntary abstention is that the motion is defeated. If, on the other hand, the vote is 4-0 (or 3-1 when only a majority vote is needed), the abstention has no effect on theo~t~om~ ?~the voting. Conclusion The answers to the three questions are: 1. By remaining silent when a voice vote is taken, a councilmember is abstaining from voting. When the mayor announces the outcome of the vote, the council member should be recorded as abstaining. If the mayor announces the vote "incorrectly" (presumably because he did not notice that a council member remained silent), the affected council member should immediately correct the record. Otherwise, the council member will need to obtain the unanimous consent of the council to change the record. With respect to the November 21,2006 vote on the motion to adopt Resolution No. 6539 regarding the compensation policies for the fire department, any council member can make a motion to change the minutes of that meeting to reflect that Council Member Lehman's vote should be recorded as an abstention rather than as "yes" vote. Unanimous consent of the council is required to pass that motion. 2. A council member may abstain from voting even in situations where the council member does not have a conflict of interest. Abstentions in those types of situations should, however, be infrequent. 3. The effect of a voluntary abstention is to acquiesce in the vote taken by the other members of the City Council. In some situations, such as a 2-2 vote, the abstention has the practical effect as a "no" vote. In other situations, such as a 4-0 or 3-1 vote, the abstention has no effect on the outcome of the voting. 2 OFFICIAL PROCEEDINGS OF THE CITY COUNCIL ADJ. REGULAR SESSION SHAKOPEE, MINNESOTA NOVEMBER 2l, 2006 Mayor John Schmitt called the meeting to order at 7:00 p.m. with Council members Steve Clay, Terry Joos, Steve Menden, and Matt Lehman present. Also present were Mark McNeill, City Administrator; Jim Thomson, City Attorney; Judith S. Cox, City Clerk; Kris Wilson, Assistant City Administrator; Michael Leek, Community Development Director; and Bruce Loney, Public Works Director/City Engineer. The Pledge of Allegiance' was recited. Mayor Schmitt asked if there were any additions or deletions to.the agenda. Mark McNeill asked that item B.C.!., Amending the Resolution Approving the Final Plat of Ridge View Estates, be deleted. Joos/Clay moved to approve the amended agenda. Motion carried 5-0. Mayor Schmitt gave the Mayor's Report. Mayor Schmitt stated Anchor Glass has been acquired by a local group and will be reopening in February 2007. Mayor Schmitt also discussed attending the Historical. Society's fundraiser for the Sesquicentennial. Mayor Schmitt also attended the LMC/ AMM, which is now known as Metro Cities meeting. Discussion was focused on population growth and what are city images. Mayor Schmitt also attended the SCALE Meeting. He said that Carver County wishes to join the Joint Regional Training Facility Group. Mayor Schmitt asked if there were any additions or deletions to the Consent Agenda as published. Menden/Clay moved to approve the Consent Agenda. Motion carried 5-0. Menden/Clay offered Resolution No. 6532, A Resolution Setting the Public Hearing Date to Consider the Vacation of a Portion of Drainage and Utility Easement at 590 Citation Drive, and moved its adoption. (Motion Carried under the Consent Agenda) Menden/Clay offered Resolution No. 6533, A Resolution of the City of Shakopee, Minnesota, Granting the Renewal of Amendment No.4 to Conditional Use Permit No. CC-376 (and Subsequent Amendments No.1, 2 & 3) and the Mineral Extraction and Land Rehabilitation Permit to Operate A Mine Within the Mining Overlay (MIN) Zone, and moved its adoption. (Motion Carried under the Consent Agenda) Menden Clay moved to authorize the appropriate City officials to submit the November 21, 2006 letter from Mayor Schmidt commenting on the DEIS for CSAH 21. (Motion Carried under the Consent Agenda) (CC Document No. 426) Menden/Clay moved to accept the Draft Comprehensive Water Resources Management Plan and authorize distribution to local agencies. (Motion Carried under the Consent Agenda) Official Proceedings of the November 21,2006 Shakopee City Council Page -2- MendenlClay offered Resolution 6534, A Resolution Ordering the Preparation of A Report for Improvements to 12th Avenue, from Approximately 300 Feet East ofCSAH 83 to Valley Park Drive; and Valley Park Drive, from 1ili Avenue to the Railroad Tracks, and moved its adoption. (Motion Carried under the Consent Agenda) MendenlClay moved to offer employees the option to purchase up to $100,000 in supplemental life insurance, at their own cost, and the option of buying-down their long-term disability insurance so that it takes effect after 30 days, at their own cost. (Motion Carried under the Consent Agenda) MendenlClay moved to approve the bills in the amount of$1,798,691.96. (Motion Carried under the Consent Agenda) MendenlClay moved to approve the minutes of the October 17,2006 City Council Meeting. (Motion Carried under the Consent Agenda) MendenlClay moved to transfer $61,827.62 from the Capital Improvement fund to the 2004 Capital Projects fund in order to close the 2004 Capital Projects fund. (Motion Carried under the Consent Agenda) MendenlClay moved to transfer $374,345.84 from the 2003 Capital Projects fund to the State Aid fund in order to close the 2003 Capital Projects fund. (Motion Carried under the Consent Agenda) MendenlClay moved to set a hearing for Tuesday, December 19,2006, at 7:00 p.m., or thereafter, to review the actions ofthe tobacco licensees: Shakopee Kwik Mart, Inc., 234 W. 1st A venue and Turtle's Bar and Grill, Inc. 13 2 E. 1 st A venue. (Motion Carried under the Consent Agenda) MendenlClay moved to authorize the appropriate staff to sign a contract with Xiotech in order to allow the City to serve as a beta-tester for the new product being developed by Xiotech, Inc. (Motion Carried under the Consent Agenda) Mayor Schmitt asked if there was anyone in the audience that wished to address an issue that is not on the agenda. No one responded. MendenlLehman moved to open the public hearing on proposed assessments for the 17th Avenue Improvements, Project No. 2006-1. Motion carried 5-0. Bruce Loney, Public Works Director, said the project has been completed extending 17th Avenue to CSAH 83. The final cost is $2,440,758.67, which consists of the construction costs, financing costs and engineering/administration costs, and including right-of-way costs. A breakdown of the costs are: Scott County $1,101,419.61 City Costs $ -0- Assessments $1,332.679.47 SPUC $ 6.659.56 Total $2,440,758.67 Official Proceedings of the November 21,2006 Shakopee City Council Page -3- Mayor Schmitt asked if there was anyone in the audience who wished to speak at the public hearing. No one responded. Councilor Lehman questioned the letter from Krass Monroe, P.A., on behalf of Mr. Mark Saliterman, indicating his intention to object to the proposed assessments. Mr. Loney stated that the letter was sent to keep options open and preserve Mr. Saliterman's the right to appeal the assessment. Menden/Joos moved to close the public hearing. Motion carried 5-0. Lehman/Joos offered Resolution No. 6530, A Resolution Adopting Assessments of the 17th Avenue Improvements, Project No. 2006-1, and moved its adoption. Motion carried 5-0. Menden/Joos moved to open the public hearing on proposed assessments for the 2006 Shade Tree Disease Control and Prevention Removal. Motion carried 5-0. Mr. McNeill stated that the Shade Tree Disease Control and Prevention Ordinance, Section 10.70, was utilized to require the removal of over 100 diseased trees on private property in 2006. Property owners were notified of the diseased tree(s) on their property and were provided four options to have the diseased tree(s) removed: 1. Remove the tree themselves 2. Hire and pay their own contractor. 3. Hire the City's contractor and pay for the removal within 30 days. 4. Use the City's contractor and request that the cost of the tree removal be assessed against their property taxes. Mr. McNeill said that two homeowners chose option number4. Mr. Loney said the work has been completed with prior approval from the affected residents. The assessment cost for resident, Janet Peters, is $1,331.25; and the assessment cost for resident, Paul & Janna Collins, is $1,287.85. Mr. McNeill also said there is a corrected version of the Resolution on the table. The original Resolution said that the interest assessment was 5.75 percent. The interest on the assessments is actually 8.0 percent. The notices that went to the property owners did include the 8.0 percent figure. Cncl. Joos was wondering if the other homeowner's who removed the trees themselves had taken precautions to dispose of the diseased tree(s) to avoid infecting other trees. Mr. McNeill said he would get a report back to Mr. Joos concerning his question. Mayor Schmitt asked if there was anyone in the audience that wished to speak at the public hearing. No one responded. Lehman/Joos moved to close the public hearing. Motion carried 5-0. Joos/Lehman offered Resolution No. 6530, A Resolution Adopting Assessments for the 2006 Shade Tree Disease Control and Prevention Removals, and moved its adoption. Motion carried 5-0. Official Proceedings of the November 21,2006 Shakopee City Council Page -4- Menden/Joos moved to open a public hearing regarding applications for 2007 Currency Exchange Licenses. Motion carried 5-0. Judy Cox, City Clerk, presented Council with the applications for renewal of three currency exchange licenses. The licenses will allow the applicants to engage in the business of cashing checks, drafts, money orders, or travelers' checks for a fee. The licensees are Madison Financial Companies, dba MoneyXchange; DRM LLC of Shakopee, dba Excel Pawn, and Wal-Mart Stores, Inc., dba Wal-Mart Supercenter #3513. Ms. Cox stated that the applicants have provided the State with the required $10,000 Currency Exchange Surety Bond. Ms. Cox also stated that the Police Department advised that they are unaware of any reason for the City of Shakopee to object to granting renewal of the licenses. Cncl. Clay asked if the state collects the license fees or does the City get a portion. Ms. Cox stated that the State does collect the license fee but the City does charge for the publication and staff time from each of the applicants. Cncl. Menden asked if the fee the store charges to cash checks is regulated by the license they are issued. Ms. Cox stated there are guidelines that regulate the fees. Mayor Schmitt asked if there was anyone in the audience that wished to speak at the public hearing. No one responded. Joos/Clay moved to close the public hearing. Motion carried 5-0. Clay/Joos offered Resolution No. 6529, A Resolution Approving the Applications of Madison Financial Companies, dba MoneyXchange, DRM LLC of Shakopee dba Excel Pawn, and Wal- Mart Stores, Inc., dba Wal-Mart Supercenter #3513, and moved its adoption. Motion carried 5-0. Mayor Schmitt asked for the Liaison Reports from Council members. Cncl. Clay stated he had nothing toreport but will be attending the Transit Meeting on Wednesday, November 22,2006. Cncl. Joos stated he attended the Sesquicentennial fundraiser. Cnc1. Joos also attended a SPUC meeting. Cncl. Joos said that SPUC will be implementing a water and electrical rate increase in the near future. Cncl. Menden attended the School Board meeting and stated that they will be approaching the Board of Adjustments for a sign at the new high school. The other item was how they can communicate better with the community. Mr. Menden told the School Board that they may want to talk to the City's new Communications Coordinator. Cncl. Menden stated the School Board is also updating policies regarding the shared facilities. Cncl. Lehman said he also attended Sesquicentennial fundraiser. Cncl. Lehman also said he attended the Chamber Planning meeting for 2007. Joos/Menden moved to recess for the Economic Development Authority (EDA) meeting at 7:30 p.m. Motion carried 5-0. Mayor Schmitt re-convened the meeting at 7:45 p.m. Official Proceedings of the November 21,2006 Shakopee City Council Page -5- Mark McNeill, City Administrator, addressed the Council regarding the Fire Department Pay Policy Modification. Mr. McNeill asked the Council to consider a change to the written policy for Fire Department pay, which was approved earlier in the year. Mr. McNeill said that it has recently come to administration's attention that one practice which Chief Schwaesdall indicates has been ongoing for the Fire Department for many years is the practice of treating individual fire calls separately, and receiving compensation for those calls while otherwise attending a fire drill. Currently all fire department activities are compensated at a flat $10.00 per hour. Mr. McNeill said that this has been the practice by the Fire Department for many years. This has been built into the existing proposed FY 07 budget. Therefore, there is no additional impact on the City's budget. Chief Schwaesdall addressed Council regarding the Fire Department Pay Policy Modification. Chief Schwaesdall said that the Fire Department Members were there to show unity on issues with regard to their pay. Chief Schwaesdall said the members would like to express concerns with the frequency of the pay issue coming before Council twice in seven months. Chief Schwaesdall stated that the fire department has not asked for an increase in pay but they have been informed that the City Administration is wishing to pay the department members for only one call per hour at the current rate of$10.00. Chief Schwaesdall said that the department holds trainings on Monday nights and the members get paid $10.00 per hour for every hour of training. However, if a fire call comes in during the same time as training, the City is not willing to pay $10.00 an hour for the fire call. Chief Schwaesdall also said that many of the fire department members donate several hours of their own time without pay and feel that they are not being shown the respect they deserve from the City Administration. Cncl. Joos asked Chief Schwaesdall why the fire department feels the City Administration does not respect the fire department. Chief Schwaesdall said he received an email from administration stating that effective immediately fire fighters would be paid $10.00 an hour and not $10.00 per call as past practice. ChiefSchwaesdall said department members were not paid for a fire call which occurred during training time. Cncl. J oos asked Chief Schwaesdall to give. an example for the audience of what past practice was when the firefighters were training and they received a call during training and how the compensation takes place. Chief Schwaesdall said that training starts between 6:00 or 6:30 p.m. and training may last two to four hours. If the department is training and the pagers go off for a call, the members stop training and respond to the fire call. After the fire call, training is resumed. Chief Schwaesdall said in the scenario described the members who respond to the fire call during training would be compensated $20.00 an hour; $10.00 for the training and $10.00 for the fire call. Cncl. Joos clarified that when there's an overlap in calls is that the members be compensated for both the drill and the fire call even though they are only participating at one or the other. Chief Schwaesdall stated that Cncl. J oos correct. Official Proceedings of the November 21,2006 Shakopee City Council Page -6- Mr. McNeill stated that in April 2006 the Fire Department Policy did not reflect members being paid for both calls in an hour. Mr. McNeill stated that the policy has to be revised by City Council to reflect this issue before continuance of pay can be implemented. Mr. McNeill did state that if the Council passes the Resolution, which reflects being compensated for a fire call and training, members would receive back pay. Cncl. Lehman feels their should be a policy regarding mandatory training for fire department members just as other City departments have training policies. The fire department training officer advised that there are state regulations regarding training and that drives what training(s) will be held for department members to attend. The training officer also said the department tracks the training each officer receives throughout the year. Cncl. Clay asked if the only concern about pay is the result of a call coming in when training is being conducted. Chief Schwaesdall said it also applies to multiple calls in one hour. Cncl. Joos clarified that if there are multiple calls within an hour each call is considered separate pay. Chief Schwaesdall stated that this is correct. . He said if the department receives five calls in one hour the members who responded would get paid $50.00 an hour. Cncl. Menden asked Chief Schwaesdall if he takes into consideration multiple calls when doing the budget estimate each year. Chief Schwaesdall said he does take that into consideration. encl. Menden reiterated that the pay issue has been past practice and has been implemented into the budget each year, but the City is just putting this in to a policy now. Cncl. Lehman asked that if there were two calls at the same time each person can only respond to one call so why would that person get paid for both calls. Chief Schwaesdall gave an example of a night where there was a call for an alarm. Department members responded and went to the call. They cleared the call 20 minutes later. They got back to the fire station and were paged out to another call. That is two calls in one hour which would be $20 for the hour of service or $10 per call. Cncl. J oos felt that the policy change was just concerning fire calls during fire department training time. Cncl. J oos feels that with all of the other issues that are being brought up with regard to this issue he feels that before he would feel comfortable making a policy change he would like to see the dollar amount impact on the budget. Mr. McNeill stated that the policy before the Council is to formalize the past practice. The additional dollars will be zero because they are built into the Fire Department budget. Cncl. Joos is concerned that if this policy is implemented that other departments may want to adopt the same policy with regard to different pay structures. Cncl. Joos feels the Council needs to be consistent in policy with all departments. Mayor Schmitt asked Chief Schwaesdall that if a firefighter is at a call and a second call is paged out does the firefighter who is at the first call also get paid for the second fire call. Chief Schwaesdall. stated that is correct and it has been past practice. Cncl.Menden stated that the Council is being asked to set up a policy for past practices that have been ongoing. Once the policy is adopted then the Council may want to look at what kind of Official Proceedings of the November 21,2006 Shakopee City Council Page -7- changes need to be made. Cnc1. Menden stated that once the policy is in place he would like Chief Schwaesdall, over the course of the year, to provide Council with information of how many calls are "stacked" in a year. Chief Schwaesdall stated that Firefighter Pitschneider provided him with information that since January 1,2006 to September 30, 2006 there were 367 calls and there were 15 instances where there were calls "stacked" and members were being paid more than the $10 an hour. MendenlClay offered Resolution No. 6539, A Resolution Amending the Compensation Policies for the Fire Department and moved its adoption; noting that fire calls received during drills or fire meetings shall be treated as being separate events, and paid in addition to drill or meeting pay. Cnc1. Lehman asked for additional information for discussion when the matter is back before Council in another seven months. Cnc1. Menden stated that maybe the Council needs to learn more and revisit the hourly charge out rate versus staking. Motion carried 4-1 with Cnc1. Joos dissenting. Mr. Loney presented Council with the River District Trunk Sewer Reconstruction, Project No. 2007-1. Mr. Loney introduced Mr. Tom Roushar from Bonestroo, Rosene; Anderlik & ~ssociates, Inc., who was there to present the report prepared regarding the reconstruction of the River District Truck Sewer. Tom Roushar gave a presentation to the City Council regarding the sewer reconstruction. Mr. Roushar presented Council with the final plans and specifications for Phase III pfthe River District trunk sewer reconstruction from Adams Street to Fuller Street extended. Mr. Roushar said the proj eet estimate is $3,491,306.00 with a 25% contingenc~; this also includes $1,080,000.00 in riverbank stabilization which is a separate project. [fthe $1.08 million for the riverbank stabilization, the City's cost would be $350,000. Mr. Roushar stated that there was also a meeting that was held with Congressman Kline's office and U.S. Army Corps of Engineers representative to discuss potential funding of the riverbank stabilization. For potential funding to be obtained, the USACOE's needs a resolution accepting the report and a resolution requesting the USACOE to conduct a study for a streambank protection project. MendenlLehman offered Resolution No. 6535, A Resolution Receiving a Report and Preparation of Plans & Specifications for the River District Trunk Sewer Reconstruction, from Adams Street to Fuller Street, Project No. 2007-1, and moved its adoption. Discussion followed. Cncl. Menden asked Mr. Loney that if the City moves forward with the project is the City going to hinder or help the possibility of getting USACOE funds. Mr. Loney said after the pipe is moved it would probably hinder the City's chances funding. Mr. Loney said the earmarking of Official Proceedings of the November 21,2006 Shakopee City Council Page -8- the money probably wouldn't be hurt but the actually committed funds from USACOE that would be hindered. Mayor Schmitt asked for a vote on the motion. Motion carried 5-0. MendenlLehman offered Resolution No. 6536, A Resolution Requesting the U.S. Army Corps of Engineers to Conduct Studies to Determine the Feasibility of Developing a Streambank Protection Project for the River District Trunk: Sanitary Sewer, from Shumway Street to Fuller Street Along the South Bank of the Minnesota River, and moved its adoption. Motion Carried 5- O. Mayor Schmitt asked if there were any Council concerns. Cncl. Menden stated that it would be a good idea for Council members to get together for "brainstorming" ideas. Cncl. Menden stated that Cncl. Clay has brought up this subject in past meetings. Cncl. Joos agreed with Cncl. Menden but said it's hard to get all the information and ideas on the table because it has to be in a public format. Cncl. 100s said it's hard to brainstorm and through ideas out when those ideas could be misinterpreted. Mayor Schmitt also had a concern about the new stop signs at the intersection of CSAH 15 and Vierling Dr. Mayor Schmitt asked Mr. Loney to ask the County to add the flashing LED lights to the stop signs. Mr. Loney said he would make that request to the County. Cncl. Joos asked three high school student's who were in the audience to come up to the podium to state their name and why they are attending the Council meeting. The student's stated that they attend Holy Family Catholic High School in Chaska and were required to attend a Council meeting for a government class they are taking at school. Mr. McNeill stated that when the Council comes out of the Executive Session that they will be adjourning to December 4,2006, at 7:00 p.m. 100s/Menden moved to recess for an Executive Session to discuss labor negotiations, at 9:30 p.m. Motion carried 5-0. Mayor Schmitt re-convened the meeting at 9:55 p.m. and stated that no action was taken during the Executive Session. Lehman/Menden moved to adjourn to Monday, December 4,2006 at 7:00 pm. Motion carried 5- O. The meeting adjourned at 9:56 p.m. Judith S. Cox City Clerk Kim Weckman Recording Secretary