LEE S SUMMIT CHARTER REVIEW COMMISSION JUNE 11, 2007

Transcription

1 Notice was given of a meeting to be held by the Charter Review Commission for the City of Lee s Summit, Missouri, on Monday, June 11, 2007, at 7:00 p.m. in the City Council Conference Room at City Hall, 220 SE Green Street, Lee s Summit, Missouri. OPENING ROLL CALL Commissioner Ed Stoll Present Commissioner George Mann Present Commissioner Brian Whitley Present Commissioner Garey Reeves Present Vice Chairman Mark Bredemeier Present Chairman Christine Bushyhead Present Commissioner Dave Mosby Present Commissioner Nancy Dean Present Commissioner Norman Dexter Present Commissioner Shawn Kane Present Commissioner John Ulett Absent Chair Bushyhead called the meeting of the Charter Review Commission for the City of Lee s Summit, Missouri, to order at 7:00 p.m. on Monday, June 11, 2007, in the City Council Conference Room of City Hall, 220 SE Green Street, Lee s Summit, Missouri. Assistant City Administrator Mr. Brian Scott and City Attorney Mr. Robert Handley were also present. APPROVAL AGENDA OF Commissioners reviewed the minutes from June 4, Commissioner Dean made a motion to approve the minutes. Commissioner Whitley seconded the motion. Commissioners approved the minutes without correction (Chairman Bushyhead abstained). PUBLIC COMMENT: Mr. John Ivey: I m here this evening because I understand that [with regard to] the Performance Audit [issue] they feel at the present time everything is covered. I would just like to point out that if you have a problem in the City, or with someone, it seems you ll wait a year or two before an audit comes about. If someone is sick, you don t tell them to wait for a year and then we ll get around to see how you are doing. Today if you have a problem in the City of Lee s Summit we re told to go to the Council or the Mayor and talk to them about it or go to the staff. All of these people are pretty busy but if you go to a political person they ll say they will check into it and get a hold of some of the staff people to look at it. Here again, these people aren t paid like some other people so it s not a big thing on their agenda to take care of it and follow through. So if staff doesn t follow through with it and if staff is busy, then it may be put off for a month or something and dies down. There needs to be a third party that you can go to and have your concerns and know that they re going to be looking after them. Mark Funkhouser is a good example of a Performance Auditor. He worked for the City of Kansas City for 17 or 18 years. When there was a problem, Page 1

2 someone could go to him and talk to him. He only had to answer to the Council. He had like 9 or 12 bosses, whatever it is. But he had these bosses he had to answer to all these people. Today we don t have anyone in Lee s Summit like that to go in and look at our staff to see what s going on and if there is a problem there. There is no one there to look at efficiency. Mr. Funkhouser is a perfect example of how something could be run and if you have a problem to have someone to go to. If you have any kind of a complaint, I ask you where do I go today with a complaint. I know this is public comments and maybe you can t answer me back, but I don t know of anyone I can go to outside of my Council people and the City staff. I don t think if there is a problem you should say wait two or three years and we ll come up with a solution. It needs to be dealt with now and quickly. Some of us have tried to bring this Performance Auditor, about five or six years ago, and people just didn t understand what a Performance Auditor was. Mr. Funkhouser has been an example of the good that can come about. I don t know how he will turn out being Mayor, good or bad, but he has a lot of background in all of these things. It was sort of a team a long time ago, where Mr. Funkhouser would maybe go in and do an audit and it was something that was going to be corrected and there was another gentleman that used to sort of back him up and this gentleman would ask for a timeline on how long it would take to take care of this problem. The department head would tell him maybe it would take a year. Okay, I will meet with you in 30 days and see what kind of progress you have made. But there was someone that was always making sure that it was something that was put back on the shelf and not talked about for a year. It was studied every 30 days to see what kind of progress was made. I think this group [Charter Commission members] is making a big mistake if you don t look at some sort of Performance Audit or give us another way that if we have concerns with some of our City staff or elected officials, some place we can go besides waiting four years for an election to come around to do something about it. Commissioner Dexter: At one time when you brought up your original Performance Auditor position discussion, we talked about it a lot. At that time period, one of the questions brought up was if you had a Performance Auditor could they be trained or understand all the various areas of the whole City. In other words, to be a Performance Auditor, could a person understand the Fire Department and Police Department and the various areas. That was a valid question. But tonight it sounds like you re talking about maybe an ombudsman. Would a Performance Auditor even be the person that a citizen would take complaints to? Mr. Ivey: It could at least go to a Councilmember and the Councilmember could say, could you look into this, and it could be done without being postponed. Performance Auditor is not something that someone off of the street could walk in and talk to but it s so that someone can go to a staff person and the staff person can go to the auditor. I have an example of a gentleman that was director of Kansas City water for years. He was very worried about a Performance Auditor. When you say auditor, they re going to go out and cut your head off and get you for sure. But he learned to go to this person and ask them, I need a rate increase. Do you think I should go to the Council with this rate increase? He used the Performance Auditor to help him as a sounding board before he went to the Council and maybe ask for something that was maybe ridiculous. Page 2

3 It s a tool for the staff to use also. It s not just cut and dry. I don t think that a Performance Auditor would be where a citizen would come in to complain to because that auditor is technically working for the City Council or elected people. That is the one he has to answer to. We ve gone 10 years or longer without this thing and under our old form of government, we could go to the state if we had a problem. But it s a self governing thing and anything this Charter or these people say then that is it, unless it is the Ethics Committee maybe. Chairman Bushyhead: Do you know how the City Auditor position in Kansas City receives its direction? Does a majority of the Council have to say this is what I want you to look at? Mr. Ivey: No, I don t think so. Chairman Bushyhead: So that position prioritizes those matters themselves? Mr. Ivey: That is a good question. I really don t know. Why don t we call Mark [Funkhouser] and have him come out here and he could answer some of those questions for you. Believe me, he has been to people in Lee s Summit and he d like to do some of those things. But I really don t know. Thank you for your time and listening to me and my concerns. Once again, if there is a problem or someone is sick, let s not wait two and three years to fix it. Let s get it out there and talk about it and fix it now. Thank you. DISCUSSION OF CHARTER: Commissioners began with continued discussion on performance audit(s). Vice Chairman Bredemeier drafted sample language he constructed for review and discussion. Vice Chairman Bredemeier clarified he is not necessarily moving in this direction, but based on the discussion of Commissioner Mann s list last week, Commissioners requested some proposed draft language and more discussion on this issue. This sample language came from the two City Code provisions in order to not conflict with the City Code. Vice Chairman Bredemeier believed last week there was a majority consensus by Commissioners on the concept of memorializing the idea of Performance Audits being done. Performance Audit was not placed in the original Charter ten years ago; however, subsequent to the Charter the City Council adopted ordinances that allows a way for the Council, and City Administrator by recommendation to the Council, to initiate an audit. There is always the possibility that future Councils could rescind that legislation and not have performance audits. The problem with the proposal at the last meeting was whether or not to mandate a specific number, percentage, order, amount, etc. Commissioner Reeves recalled that Commissioners did not want to get locked into a time frame or a number of required audits. For example, some departments are larger than others and would require more than another smaller department. Vice Chairman Bredemeier said another concern, looking at the Kansas City Charter, is how Page 3

4 large it is and hard it is to get rid of items. Issues added that seemed like a good idea in 1954 are maybe not such good ideas in 2004 and then the voters don t adopt the change when trying to change the Charter back. Housekeeping items took three or four tries before getting approved to be changed back in the Kansas City Charter. His concern was if there is a mandate listed, there may come a day when the Mayor, all Councilmembers, City staff and civic organizations do not believe there needs to be that many audits but the Charter would have already locked it in and the money must be spent, although that money should be spent somewhere else. In the City Code, there is no reference to numbers or timeframes of audits. Chairman Bushyhead asked for clarification on whether the ordinance requires an annual audit. Mr. Scott said there is a requirement of an annual recommendation by City Administrator. Commissioner Mann preferred to add the term annual and not use the term periodic in order to fit better with the current language in the ordinance. His intent was to elevate the ordinance to Charter status. This way the number of audits would not be listed and it would be at the discretion of the City Administrator and City Council. Vice Chairman Bredemeier said currently there are annual performance audits of various City departments and operations. Mr. Scott read the City ordinance: Beginning in calendar year 2000 and annually thereafter, the City Administrator shall prepare and submit to the City Council a written recommendation of any manner relative to the City government or any City operation or program that the City Administrator deems appropriate for a Management Performance Review for consideration by the Council for possible funding in the next fiscal year budget. The recommendation will include the estimated cost of the Management Performance Review or Reviews, the proposed source of funding, and other information deemed appropriate by the City Administrator or requested by the Council. As part of this annual reporting process the City Administrator shall also provide the City Council with his/her assignment of the operational status of each City department to assist the City Council in evaluating the property of budgeting funds for Management Performance Reviews. Commissioner Stoll felt what was being proposed goes further than the current ordinance. Currently it is obligatory on the City Administrator to prepare this recommendation to City Council and it is up to the City Council to move forward or not. The proposed language is different. Commissioner Reeves clarified that this proposal would require the City Administrator to make a recommendation and the City Council would then be obligated to do something with it. Commissioner Stoll agreed and added that it would also put the burden on the City Council to find funding to perform that audit and the ordinance does not state. The proposed language would give the City Administrator extreme power. Currently with the ordinance it is just a recommendation and the City Council can chose to move forward or not. Commissioner Mosby asked if every year the City Council has been following the City Administrator s advice. Mr. Scott said yes, that the Operational Status Report is generated every year by the City Administrator and given to City Council. Page 4

5 Chairman Bushyhead liked the idea that something should be there so the ordinance cannot be repealed. She preferred the term periodic as opposed to annual. It is a general granting of authority, the ordinance is still in place and the Charter would not be inconsistent with the ordinance, but it would be a bit more strict. From a practical standpoint, it would mean if the Administrator makes a recommendation then the audit needs to happen. Commissioner Stoll thought the Commission had originally discussed having something that codifies the concept of the Performance Audit. Vice Chairman Bredemeier said he was not in favor of his current wording because it essentially requires the Council to act just upon a City Administrator recommendation and ultimately the Council is to provide for periodic reviews. Commissioner Dean asked if anyone was aware if Mr. Ivey has ever asked anyone for a particular audit. Commissioner Reeves said Mr. Ivey wants a single person to go to instead of having to go to numerous people if there is an issue. He felt Mr. Ivey was looking for one person to take his question to and then the system worked out, although government does not work that way. An independent auditor would work independently and would prioritize. Once you have an independent auditor, anyone that has a problem would go to that single person to make complaints. That independent auditor then would choose what would make him/her look best and not necessarily what problem came first. He did not believe that is a very viable system. Vice Chairman Bredemeier said in City government a powerful position to have would be as the individual City Auditor. The City Administrator is held accountable for the departments working, the Mayor is subject to an election by everyone in the City, Councilmembers are subject to election within their district and this auditor position being discussed is the only position that does not have any direct accountability to anyone. Commissioner Reeves agreed an independent auditor, as a City employee, would become a very strong force. A lot of people had complaints about Mark Funkhouser in Kansas City and his position becoming too powerful. Commissioner Mann said the Commissioners need to concentrate on the proposed language which is just talking about having the act of Performance Audits and not specifying who does it. He felt the idea of audits is a valid idea and elevating it to Charter status is important. Commissioners discussed possible language for Performance Reviews and Audits. Chairman Bushyhead believed the City Administrator should have the right to recommend an audit in case there would ever be a future Council that would be so politicized that the body ignores something that could be very critical. The City Administrator should have the right to perform their duty. Commissioner Stoll said the audit will be up to City Council, so he did not know if it was necessary to say in the language where the recommendation must come from. The City Page 5

6 Administrator can always make the recommendation so does it really need to be in the Charter. Commissioner Whitley was concerned about taking out too much of the language and it opening up the right of recommendations to a large number of sources or parties. Commissioner Stoll thought if a group of citizens addressed the City Council requesting an audit, then the City Council should see that it is in fact an important issue to address. Vice Chairman Bredemeier said regardless who addresses the Council, the final authority still falls on the City Council. Commissioner Reeves said the City Administrator is the one that knows best how the departments are running and where any weakness may be. Chairman Bushyhead was concerned that if someone wanted to be political, they could state that it only says the Council shall provide and not the Administrator. Commissioner Dexter preferred the term periodic so as not to drive the City budget and he also preferred to keep City Administrator included in the Section. Motion: Commissioner Reeves made a motion and Commissioner Dexter seconded to include a section that states: Performance Reviews. The Council, upon its own initiative or a recommendation of the City Manager (i.e. Administrator) approved by the Council, shall provide for periodic management/performance reviews (performance audits) of City operations, programs or other matters. Commissioner Kane said in the Charter, Section 14.8, it states, from time to time but no less often than ten years and he asked if you could put similar wording into the proposed motion versus the term periodic. Commissioner Whitley said they probably don t need the term periodic in that section if it states that initiation is by the Council and City Administrator. Commissioners questioned what exactly periodic meant. Commissioner Dexter was concerned about using the term annual and it being construed as meaning every year every department must be audited. Chairman Bushyhead said that was also her concern, a huge budgetary issue. Commissioner Whitley offered possibly listing it so as to read that with a certain number or percentage of citizens, they may initiate a recommendation upon successful initiative. Mr. Scott asked if he was saying it would be an initiative petition on the part of citizens. Commissioner Whitley said it would be. Mr. Scott was still concerned with the budget issue. Page 6

7 Chairman Bushyhead clarified that initiatives are the power to propose ordinances, but the subject matter is limited and does not extend to budget or capital program. She quoted, levy of taxes, zoning, or salaries of City employees or ordinance relating to appropriation of money unless such ordinance provides for additional revenues therefore. Commissioner Whitley said a Management Review would be outside of those items. Mr. Scott said you would be requiring an appropriation of funds to pay for a Management Review. Commissioner Mann said since the ordinance went into effect, the City has been averaging two audits per year. That is why, if saying annually, the City can just do one a year, which would be less restrictive. It would say something needs to be done every year and leave it up to the Council to decide how encompassing it would be. Commissioner Dexter said the term periodic seems like it empowers more opportunity for audits then the term annual. Annual would seem to require all departments to be audited annually. Commissioner Mann was concerned with how people would interpret periodic. People know that annual means every 12 months. Chairman Bushyhead asked Mr. Scott if there have been instances in the past when an audit has spanned two fiscal years. Mr. Scott said there has been, primarily because of the timing into the fiscal year. Mr. Scott said they do recommend two a year. Commissioner Reeves asked if that still includes the Accreditation Evaluation Programs. Mr. Scott said it did not. Commissioner Reeves clarified then that both cost money and the Accreditation is very much like an audit anyway and he believed it actually covered more than just a Performance Audit. Commissioner Mann did not agree. Commissioner Mosby did not believe that periodic or annual should be put in that section as it was not needed. Chairman Bushyhead said that if you take out periodic or annual, something would need to be in place of that so people did not read it as requiring multiple reviews every year and it could be taken to an extreme. Commissioner Mosby and Commissioner Dexter did not believe having any type of a time table was a good idea. Vote on Motion to add a section stating: Performance Reviews. The Council, upon its own initiative or a recommendation of the City Manager approved by the Council, shall provide for periodic management/performance reviews (performance audits) of City operations, programs or other matters. Motion passed 9-1. Chairman Bushyhead: Yes Commissioner Dexter: Yes Page 7

8 Commissioner Stoll: Yes Commissioner Mann: Yes Commissioner Whitley: Yes Commissioner Reeves: Yes Vice Chairman Bredemeier: Yes Commissioner Mosby: No Commissioner Dean: Yes Commissioner Kane: Yes Review of Draft Charter The new Performance Audit section was added in as Section 3.12(b). The title of that section was changed from Independent Audit to Audits and Reviews. Section 4.2(b): Title was changed Election and Term to Election, Term, and Term Limitations. Section 4.4(b): City was changed to lower case and shall at least annually was removed. Section 5.2(e): Added language was proposed stating, which shall be open to public inspection, maintained in the Office of the City Clerk, and available in electronic form. Commissioners discussed possibly adding printed within the language. Mr. Handley said when this was previously discussed by Commissioners, it was decided to state, to be in electronic or in printed format which is different than the currently proposed language. This, however, will require another question added to the ballot since it is a deviation from the practice of mandating all records be in electronic format. Commissioner Kane read a previously drafted Charter that stated, The official copy of which shall be on file in the office of the City Clerk. Commissioner Whitley recalled that Commissioners had decided to go through each section to see where electronic format would or would not be appropriate. Chairman Bushyhead suggested reviewing old minutes for previous discussion regarding this topic. Section 5.2(f): Language was added at the end stating, the official copy of which shall be on file in the Office of the City Clerk. Commissioner Whitley noted this section does not state available in electronic format. Mr. Handley said that there is a catch-all provision that requires all public records available in electronic format. Page 8

9 Commissioner Mann said at the end of the last meeting there was discussion on electronic format and if that meant the information would be on the website or not. Commissioners decided to continue through the draft Charter and come back to the areas listing electronic format at the next meeting. Commissioner Mann distributed a list regarding electronic format (see attached). Section 8.1(b): The Mayor Pro Tempore (instead of the Mayor) shall appoint Council liaisons, with advice and consent of majority of the Council. Article 9: Title was changed from Nominations and Declaration of Candidacy and Elections to Declaration of Candidacy and Elections. Section 9.2: Title was changed from Nominations to Declaration of Candidacy. Section 9.3: Language was added stating, certification of the election returns by the respective verification board of each county. Section 10.2: The term notarized was added into the title and body of the section clarifying it is a notarized affidavit. Language clarifying a street address requirement was added. Language was added stating, consenting that delivery of notice to such address shall constitute valid receipt by the committee and language also added states, and a general statement of the reason(s) for the recall. Section 10.3(b): Language was added stating, and the general reason(s) for recall on the top and bottom of all papers of the petition. Section 10.3(c): The term notarized was added within the title and body. Section 10.4(a): The previous 20 day requirement was changed to 30 days. The term delivered was changed to send. Commissioner Stoll felt this would be good because it would make the City just responsible for sending it by certified mail. After some discussion, Commissioners decided on having language which requires the use of, United States certified mail return receipt requested versus priority mail. The term calendar days was changed to business days. Section 11.6: Language was added to state, in printed form or electronic format. Page 9

10 Section 12.2(d): Language was added to state,...which shall be available in printed or electronic format. Vice Chairman Bredemeier asked if it was standard, as listed in Section 14.5, that the Mayor receive written notice of any personal injury case within 90 days from the date of occurrence. Commissioner Stoll asked how binding that section is to a plaintiff. Chairman Bushyhead said it would not hold up in Court, although she believed these notices to be helpful. Every year a response audit letter must be done listing any potential claims that have not yet arisen. The notices the City does receive are helpful in order to give an idea of what liabilities are out there for the annual audit. State law also has this provision for statutory cities, and possibly for Charter cities as well. Commissioners unanimously decided to leave Section 14.5 as is. Section 14.7: Language was added to state, in the manner prescribed for initiative petitions in Article X. Section 15.3, 15.4 and 15.5: Language was added to state, or at the time this Charter is amended. Commissioner Kane asked if this would hold since it is different from the ordinance, and then the ordinance would be changed? Mr. Handley said when the Charter was originally passed, it said that everything that was in force and effect at the time the Charter was passed stayed in full force and effect. The same problem exists when it is amended. The Charter will be around for many years, and amended from time to time, so there is an opportunity to address the issue now. It can be said that any time the Charter is amended, none of these provisions will alter the rights, duties and responsibilities that may be in play at the time of review of the Charter. It is basically a savings clause the idea is whatever was in the works during the Charter amendment process does not become nullified and the revisions of the Charter do not have unintended consequences on things that are pending. Chairman Bushyhead said she did not think anything they have done is in conflict or inconsistent. Vice Chairman Bredemeier said if there are ordinances that are in place now that are not consistent with any amendment changes made to the Charter, then the Charter prevails. A process with staff will probably happen to make sure the Code is reviewed so this is not a problem. Commissioner Mann distributed a list dated June 11, 2007 regarding Electronic Format and Website for Commissioners to review. This list broke down sections where he suggested Page 10

11 adding available on the City s website instead of available in electronic format. Chairman Bushyhead asked Commissioners to review the past minutes as she thought the Commission had already reached consensus on this topic. Sections 3.6, 4.5 & 7.2(d): Lee s Summit was added before city office. Article XVII First Amended Schedule was added (draft prepared by Vice Chairman Bredemeier, see attached). Commissioners unanimously agreed on the draft language for Article XVII that Vice Chairman Bredemeier proposed. Mr. Handley said the savings clause language would be added at the end and throughout the Charter in the other areas discussed (i.e. 15.3, 15.4, and 15.5). Commissioner Stoll asked why in Section 17.3 it should state that the Charter amendment becomes effective at the first meeting of the City Council and not after the certification of the election results. Mr. Handley said it could be stated either way. The only requirement is that the amendments, when approved by voters, state when they go into effect. Commissioner Kane asked if the new Section 17.2 would make the term limits retroactive. Vice Chairman Bredemeier said it would. If someone triggers the term limitations because they have already exceeded eight consecutive years, or with the completion of the current term will meet the eight years, then they get the one additional four year. If this provision was not in the Charter, then whatever incumbent was in office and met the term limitations, would be done in 2008 or 2010 and would not be able to run again. Vice Chairman Bredemeier said he would be okay without the additional provision but this way, he could not believe that even those that felt strongly enough against term limits, including incumbents and their supporters, would muster up opposition to the concept of term limits with this saving provision. The next meeting was scheduled for Monday, June 25 th, 2007 at 6:00 p.m. At the next meeting Commissioners will discuss electronic format and Commissioner Mann s handout. The review of the draft ballot language and the review of the Final Report going to Council will also be discussed. Commissioners decided to any comments to Mr. Scott regarding the Final Report and then Mr. Scott will gather a list of issues for that discussion. July 12 th is the anticipated date the Charter Amendments will be presented to the Council for approval. The Charter, as amended, and the draft ballot language was to be sent for a legal review to Mr. Howard Wright. Commissioner Stoll requested that Question No. 4, Term Limits, be worded exactly as it is stated in the Charter and Mr. Handley confirmed he would change that. ADJOURNMENT: Chairman Bushyhead adjourned the meeting at 9:20 p.m. Page 11

12 _ Amber Arbuckle, Page 12