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HomeMy WebLinkAboutAgenda - City Charter Committee - 02/21/2012 .1� south irlinalTM Sanford I. Miller, City Manager smiller@sburl.com Charter Committee City Hall,575 Dorset Street Tuesday, February 21, 2012 5:30 p.m. Agenda 1. Call to order. 2. Agenda Review: Additions, deletions or changes in order of agenda items. 3. Review and approve minutes February 13, 2012 (copy attached). 4. Review City Attorney comments. 5. Refine and accept final charter change language. 6. Consider content of report to City Council. 7. Discuss any additional meeting date, if required. 8. Any additional items for discussion or consideration. 9. Questions&comments. 10. Adjourn. Respectfully Submitted: Sanford I. Miller, City Manager 575 Dorset Street South Burlington,VT 05403 tel 802.846.4107 fax 802.846.4101 smiller@sburl.com www.sburl.com JLadd From: Peter Taylor[pt46er@gmail.com] Sent: Monday, February 20, 2012 4:48 PM To: 'Agnes Clift; 'Dan Fleming'; 'David Coriell'; pt46er@gmail.com Cc: sjalenick@comcast.net; donna; JLadd; Sandy Miller Subject: RE: Draft City Charter Committee report Tuesday, Feb. 21st Attachments: DraftCharterCommitteeReportToCityCouncil.doc To: So. Burlington Charter Committee From: Peter Taylor Attached is a draft of a report to the City Council. But first, do we need the city attorney present for our meeting Tuesday evening or is his written communication sufficient? (see below) I have tried to keep the report brief with the key points reflecting our recommendation and supporting rational. Detailed documents will be attached. Please see Dan's suggested attachments at the end of the draft report. Any additional thoughts? Also note as per Dan's comments (See below) the clerks office has two positions Assistant City Clerk and Deputy City Clerk. If we assume both of these positions to be "Assistant Clerks" as referenced in Vermont Statutes Title 24 Chapter 35 sections 1170 and 1171 perhaps we should include a comment? I welcome your suggested changes, additions or deletions See you tomorrow. Peter To contact me use: pt46er@gmail.com 802 238 8365 cell Background: From: Dan Fleming [dan.fleming.001@comcast.net] Sent: Friday, February 17, 2012 2:31 PM To: 'Peter Taylor' Subject: FW: City Charter Committee request. Hi Peter, 1 I'm OK with Steve Stizel's language with the possible exception of stating assistant not assistants and no mention of a deputy clerk. My understanding is that there is presently one of each. I see future potential for more staff in the Clerk's office. Will they be appointed by the Clerk? Will they all be assistant clerks? What of part time, interns, etc.? From: Steven Stitzel [mailto:SStitzel@firmspf.com] Sent: Friday, February 17, 2012 1:00 PM To: Sandy Miller Subject: RE: City Charter Committee request. Sandy, Given the Charter Committee's decision regarding the change requested by the City Clerk, I agree with their choice of Section 301 for the change but suggest a slight modification of the language as follows: The City Clerk shall be an elected officer with all the powers and duties granted by this Charter and general State law, including, without limitation, the power to appoint, discipline and remove an assistant city clerk. As you know, I have concerns about implementation of this change given the long-standing status of employees in the Clerk's office under the City's personnel rules and the City Hall Employees collective bargaining agreement. I also have concerns about potential legal consequences for the City if this change is made. I have shared these concerns with the Committee. Steve From: Sandy Miller [mailto:smiller@sburl.com] Sent: Tuesday, February 14, 2012 8:08 AM To: Steven Stitzel Subject: FW: City Charter Committee request. Steve, See below as Charter Committee is asking for some review and they have a self-imposed deadline. Call if you have questions. Thanks. Sanford"Sandy"Miller Original Message From:Peter Taylor[mailto:pt46er@gmail.com] Sent:Tue 2/14/2012 7:57 AM To: Sandy Miller Cc: sjalenicka,,comcast.net;'Agnes Cliff; 'Dan Fleming';'David Coriell'; JLadd Subject: City Charter Committee request. Sandy, This request is to follow up with the Charter Committee's decision last night to recommend a charter change to clarify that the city clerk is an elected position with the powers and responsibilities as defined in state statutes. Specifically the change should be clear that the city clerk has 2 the capacity of appointment of assistant clerks as stated in Title 24 chapter 35 section 1170 below. The committee is recommending that section 13-301 of the City Charter be amended by adding a new"(4)The City Clerk shall be an elected office with the powers and duties as defined in State Statute." The Committee is requesting that the city attorney review and advise us on both the suggested language above and appropriate placement within the charter to accomplish our recommendation. As you know our next meeting is scheduled for Tuesday,February 21, 2012 at 5:30 PM Thank you for your assistance in this process. Peter The Vermont Statutes Online Title 24: Municipal and County Government Chapter 35: TOWN CLERKS 24 V.S.A. § 1170. Assistant clerk § 1170. Assistant clerk After his election, a town clerk shall forthwith appoint one or more assistant clerks, for whose official acts he shall be responsible, who shall hold office during his term of office, or until such appointment is revoked by him. Such appointments and revocation shall be recorded in the office of the town clerk. Chapter 13: CITY OF SOUTH BURLINGTON 24 V.S.A. App. § 13-102. General law application 3 § 13-102. General law application Except when changed, enlarged or modified by the provisions of this charter, or by any legal regulation or ordinance of the City of South Burlington, all provisions of the statutes of this state relating to municipalities shall apply provisions to the City of South Burlington. Prior acts or enactments of the town of South Burlington shall not be affected by this charter, except as otherwise provided herein. Except when changed, enlarged, or modified by the provisions of this charter, all provisions of the statutes of this state relating to schools or school districts shall apply to the South Burlington school district. From: JLadd [mailto:jladd@sburl.com] Sent: Friday, February 17, 2012 4:16 PM To: Agnes Clift; Dan Fleming; David Coriell; Donna Kinville; pt46er@gmail.com; smiller@sburl.com Cc: sjalenick@comcast.net Subject: City Charter Agenda for Tuesday, Feb. 21st Please see attached the Agenda for Tuesday, Feb. 21'plus the draft minutes for Feb. 315t. Thank you, Janice£add HR Coord. City of South Burlington 575 Dorset St South Burlington, VT 05403 802-846-4118 4 Draft for Charter Committee Review 2-20-12 Final Report and Recommendations, South Burlington Charter Committee February , 2012 South Burlington City Charter Committee: Peter Taylor, Chair Agnes Clift David Coriell Dan Fleming, Vice Chair Donna Kinville — Donna has excused herself form the Committee for this discussion since she has proposed the change: Just before the new year 2012 the Charter Committee received a request to consider and report back to the City Council on a proposed change to the city charter that had been submitted from that City Clerk requesting that the following language be added to the City Charter: "No provision of this Charter shall infringe upon or limit the duties of the Clerk as established by general State law, including the power to appoint, supervise, and remove all assistant town clerks. The Clerk was requesting that this charter change appear on the town meeting ballot in March. This time frame required a report back to the Council by February 6, 2012. The Charter Committee requested additional time to consider their recommendation and this request was granted by the City Council on February 6, 2012. The Charter Committee recommends a change to the City Charter as follows: Section 301 (4) The City Clerk shall be an elected officer with all the powers and duties granted by this Charter and general State law, including, without limitation, the power to appoint, discipline and remove an assistant city clerk. (note: Dan's comments should we modify this recommended language?) The Committee also recommends that a ballot item on this Charter Change be considered for the Primary election in August 2012. If adopted by the voters this would be in time for a charter change to be considered in the 2013 Legislative Session. The charter committee has met 6 times: January 10, January 17, January 24, January 31, February 13th, and 21st. The January 10t" 17t", 24th, 31 Sc and February 13th minutes are available on the city's web site and the minutes of the February 21 , 2012 have not yet been approved. The Committee has received testimony from: • Donna Kinville, City Clerk • Sandy Dooley, Chair SB City Council • Sandy Miller, City Manager • Martha Lyons, President, City Hall and Public Works Employees Association (SBCH&PWEA). • Steve Stitzel, City Attorney. • Ron Smith, RHR Smith, Independent City Auditor. • Paul Gillies — Former Vermont Deputy Secretary of State Some of the key facts and issues are: • Vermont statutes have established a long history of the independence and autonomy of the elected City Clerk position. • An elected office of the City Clerk vs. an appointed City Clerk All four members believe that the clerks position should either be elected with the statutory responsibilities and authority as define in Vermont Statutes including the appointment of assistant clerks or that the Clerk's position should be appointed as well as appointed assistant clerks. • Current SB City Charter and its lack of reference to the office of City Clerk. It is the belief of the all members of the Committee:that the current charter omission of a direct reference to the City Clerk shifts the responsibility for the City Clerks Office to state Statutes and therefore already provides the Clerk with the supervisory responsibilities is being sought and that the charter may have been misinterpreted over time. • It appears that all employees in the clerk's office (e.g. assistant clerks,) if continued as part of the Collective Bargaining Agreaement or as at-will employees, will be employees of the city. We recognize that our recommendation creates an administrative challenge, but believe that this issue can be resolved when this charter change is adopted by the voters. • It is clear that the Clerk's pay scale and steps are controlled by the city manager/city council. • The city manager/city council set the budget for the clerk's office. During the Committee's discussions, three of the Charter Committee members wished to preserve the Office of City Clerk as an elected position. One member was supportive of the concept of an appointed City Clerk. Assuring the independence of elections is one of the primary rationales for supporting the office of elected Clerk. Our final recommendation was unanimous. Our final recommendation is consistent with state law that seems to favor independent authority from the City Council and City manager for elected Clerks. However, state law also allows for Clerks be appointed by means, other than election by the town's voters, in which case no such independent authority is provided. The Committee reviewed the charter and personal manual sections of several Vermont cities and towns that appoint City Clerks. The Charter Committee's recommendation preserves the elected clerk position as a way to provide the clerk with the authority over the assistant clerk positions to ensure the independence of the Clerk and Clerk's office. As stated above our recommendation poses some employment issues, however the will of the voters should determine the direction for these issues. It is the expectation of the Committee that some actions could take place in the personnel manual to protect the appropriate independence and responsibilities of the Clerk's office and of the city as an employer in enacting the requirements of this Charter Change change. We suggest consideration of the Vermont League of Cities and Towns (VLCT) draft Personnel Policy Section 2 that provides some guidance in this area. We have attached a number of documents that should provide the Council and residents with a good incite into the documents, testimony and deliberation of the Charter Committee in arriving at this decision. The members of the Committee thank the Council for the opportunity to review and comment on this proposed charter change are pleased to answer any questions the Council may have. The Committee has considered much information and numerous documents including: • VT State Laws related to the office of city clerk • SB City Charter • Opinions of the Secretary of State (former SOS Deb Markowitz) • Job Descriptions for the City Clerk, Deputy Clerk and Assistant Clerk. • Collective Bargaining Agreement between the City and the SBCH&PWEA and • City's Personnel Rules and Regulations • Report from the City Clerk on the status of the city clerk position in similarly sized Vermont cities. Attachments: 1. The minutes from all meetings 2. The proposal(s) as delivered by D. Knville. 3. The City Charter noting sections 13-1701/Appointment and Removal, 1702 /Personnel Rules and regulations as brought to our attention by Sandy Miller and section 13-102 General law application 4. Vermont Labor Relations Board Docket No. 79-78R, 14Jan80 5. Job descriptions of Clerk, Deputy Clerk, and Assistant Clerk 6. S. Miller's e-mail of 11Jan12 "Some Statutory References" 7. Municipal Law Basics p5-6 , sec B.4.c) relating overlapping authority 8. Vermont Sec of State Opinions vol12, #3, March 2010, p6 #19 "Town Clerk Controls Town Vault" and #20 "The Selectboard Controls Town Buildings". 9. S. Stizel's e-mail of 17Feb12 "Charter Committee Request" 10. Possible the draft language submitted by Donna on 24Jan12 that includes the VLCT draft personnel policy language. CITY CHARTER COMMITTEE 13 FEBRUARY 2012 The South Burlington City Charter Committee held a meeting on Monday, 13 February 2012, at 5:30 p.m., in the Conference Room, City Hall, 575 Dorset St. Members Present: P. Taylor, Chair; A. Clift, D. Coriell, D. Fleming Also Present: S. Miller, City Manager; M. Lyons 1. Agenda Review: No changes were made. 2. Minutes of 31 January 2012: It was suggested that the word"elected"be inserted on the first line of page 2 before the words "...City Clerks." The spelling of Mr. Gillies name was corrected. Mr. Coriell moved to approve the Minutes as amended. Mr. Fleming seconded. Motion passed unanimously. 3. Review Revised Language from City Clerk- comments from interested parties: Ms. Lyons indicated she was speaking on behalf of the City Hall Employees Association who are opposed to the language of the proposed Charter change. She said it appears that the City Clerk wants to sidestep the union and avoid the steps that other department heads have to go through. Ms. Lyons also said that as a taxpayer she had concern with someone having total hiring/firing power which could lead to nepotism. Mr. Miller noted the wording now proposed is the third version Ms. Kinville has submitted. Early on she said she wasn't opposed to her assistants being in the bargaining unit. At the City Council meeting last week, she said the Charter change would negate the bargaining agreement and personnel rules and regulations. Mr. Coriell recalled that the City Attorney had said it was not clear how the proposed Charter change would affect the bargaining agreement and that it might have to go to the Labor Relations Board. He had indicated he wasn't sure what the outcome of that would be. Mr. Miller said the question is whether a contract between a bargaining unit and the city can be thrown out because of a City Charter change. He wasn't sure whether this would go to the Labor Board or to the Courts for a decision. Ms. Cliff said that state law supersedes a labor contract, and the question may be whether the City Charter, which is state law, would also supersede the labor contract. Ms. Lyons said it seems that the City Clerk doesn't want to follow the disciplining process and just wants to dismiss assistant clerks at will. This raises a huge concern that CITY CHARTER COMMITTEE 13 FEBRUARY 2012 PAGE 2 the personnel rules and regulations would just"go out the window." Mr. Taylor asked members how they felt about the proposed"Section A"of the Charter amendment. Mr. Fleming said he is not comfortable with a lot of the proposed language. He felt the issues should be handled through the personnel rules and regulations.'If the proposed language is accepted, it would be the first mention of a bargaining unit in the City Charter. Ms. Clift felt the proposed language is too specific for the City Charter and introduces confusion rather than clarity, even though it is specific. Mr. Coriell agreed. Members agreed they did not favor"Section A" of the proposed Charter amendment. Mr. Fleming said the most complete way to handle the issues would be to make the City Clerk an appointed rather than elected position. He felt that whatever the Committee does, it has to make things clearer than the present situation. Mr. Coriell said there are 2 ways to make things clearer: make the Clerk an appointed position or give the Clerk what she is asking for. He felt the language of the proposed Charter change could further muddy the situation. He suggested possibly asking the City Council to look at the personnel rules to see if there is something that can be made clearer. Mr. Taylor asked if the committee believed the City Charter already gives the Clerk what she is asking for. Mr. Coriell said State law makes it clear that the Clerk can hire her deputies. The City Charter seems to give the City Manager control over non-elected employees. Ms. Clift asked if it is possible to look at the language where the City Manager is given the power to hire employees and add "with the exception of assistant City Clerk(s)." She added that she felt the city should follow State Statute and that in the present political climate it is not the time to go to an appointed clerk Mr. Taylor said he favors an elected City Clerk. He added that as he reads the City Charter, the Clerk can appoint her assistants. However, leaving the Charter as it is, would let things fester even more. He said that if the Committee feels the Clerk should appoint her assistants, there needs to be a change in the Charter language. He also felt that any language the Committee proposes should be run by the City Attorney. How the language affects the bargaining unit would have to be worked out. CITY CHARTER COMMITTEE 13 FEBRUARY 2012 PAGE 3 Mr. Coriell indicated he could be on board with a change. He felt an elected official should have some autonomy to run his/her office. Mr. Fleming read from the Charter section stating that State statutes apply unless the Charter says otherwise. He noted that State law gives the Clerks independence, and nothing in the Charter changes that. Mr. Fleming added that he found merit in how this is handled in the VLCT personnel policy and noted that personnel policy is the purview of the City Council. He said he felt deputy city clerks should never have been appointed by the city in the first place. He also noted that if the Committee does nothing, his expectation is that the City Clerk will take this to a petition. Mr. Taylor suggested the possibility of language that references the State Statute giving the Clerk the right to appoint, etc. Mr. Coriell read from the State Statute giving the City Clerk"at will"appointments of deputy clerks. Mr. Fleming said he would be looking for a statement that reinforces State Statute, including the hiring, supervision and firing of deputy clerks. Mr. Taylor then suggested the following language as Section 301(4): The Clerk shall be an elected office with the powers and duties as defined in State Statute. Mr. Coriell moved to approve the proposed language pending review by the City Attorney. Ms. Clift seconded. The motion passed unanimously. Mr. Fleming then asked about the issue of access to the Clerk's office which was part of the original request. Mr. Miller said it is clear to him who has access: the City Clerk and her Assistants have combinations to the vault and nobody else. Mr. Fleming said there is also emergency access to police and fire personnel. Mr. Miller said that is "best practice" with no force of law behind it. Mr. Taylor asked member to look over the documents that were given to the committee and select the ones they feel should be attached to their report. Members agreed to finalize their report at a meeting on 21 February at 5:30 p.m. Mr. Coriell then moved to adjourn. Ms. Clift seconded. The motion passed unanimously, and the meeting was adjourned at 6:40 p.m.