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HomeMy WebLinkAbout08-01-22 Special City Council Meeting Packet SPECIAL CITY COUNCIL MEETING Mayor Amáda Márquez Simula Councilmembers John Murzyn, Jr. Connie Buesgens Nick Novitsky Kt Jacobs City Manager Kelli Bourgeois City Hall—Council Chambers, 590 40th Ave NE Monday, August 01, 2022 5:30 PM AGENDA ATTENDANCE INFORMATION FOR THE PUBLIC Members of the public who wish to attend may do so in-person, by calling 1-312-626-6799 and entering meeting ID 893 4218 4678 or by Zoom at https://us02web.zoom.us/j/89342184678. For questions please call the Administration Department at 763-706-3610. CALL TO ORDER/ROLL CALL ITEMS FOR CONSIDERATION 1. City Council Consideration of Ordering an Investigation Into Allegations Against Council Member Raised at the July 25, 2022 Open Forum. ADJOURNMENT Auxiliary aids or other accommodations for individuals with disabilities are available upon request when the request is made at least 72 hours in advance. Please contact Administration at 763-706-3610 to make arrangements. 1 200 Coon Rapids Blvd. NW Suite 400 Coon Rapids, MN 55433 BGS.com EXPERIENCE|TRUST|RESULTS Charles M. Seykora Bradley A. Kletscher Jennifer C. Moreau Nicole R. Wiebold Of Counsel Beverly K. Dodge Timothy D. Erb Cathryn D. Reher Tyler W. Eubank Michael F. Hurley James D. Hoeft Karen K. Kurth Jason C. Brown Bobbi Hermanson-Albers Elizabeth A. Schading * Joan M. Quade Adriel B. Villarreal Thomas R. Wentzell Erik C. Ordahl * James H. Wills * John T. Buchman Tammy J. Schemmel Herm L. Talle Stephany J. Elmer Scott M. Lepak Carole Clark Isakson David R. Schaps Georgia S. Kellogg * Also Licensed William F. Huefner Joseph J. Deuhs, Jr. Lindsay K. Fischbach Rachel L. Farhi in Wisconsin 763.780.8500 MEMORANDUM TO: Columbia Heights City Council and Manager FROM: Scott Lepak, Assistant City Attorney RE: City Council consideration of ordering an investigation into allegations against Council Member raised at the July 25, 2022 Open Forum DATED: July 29, 2022 The August 1, 2022 special City Council meeting will address the issue of next steps, if any, related to the allegations against a Council Member raised at the July 25, 2022 Open Forum. This memorandum is intended to assist the Council in the process. Background A citizen appeared at the July 25, 2022 open forum to relate what he indicated was a verbal telephone communication with a phone number from an existing council member. The citizen indicated that the communication included inappropriate comments regarding his race and upbringing. It is relevant to note that the reporting citizen is a candidate for a council seat in the upcoming election but the existing city council member referenced in the report by the citizen is not an opponent to the reporting citizen in the upcoming election. Accordingly, on the surface of the matter, the broader freedoms of competing candidates to engage in communications against each other would not apply to the present allegations. The Councilmember later responded with what they referenced as a public statement. The statement (redacted to remove the name of the reporting citizen) was: “On Monday, July 25, [citizen] reported a concerning conversation he had recently with an individual who called him from my personal cell phone. While the call to [citizen] was made by an extended family member who should not have had access to my phone and had no authorization to use it, I understand that I am ultimately responsible for the consequences. As an elected official in this community, I take my duties very seriously. Words expressed by my family member to [citizen] do not in any way reflect my own opinions or values. The behavior of my family member is unacceptable. I’m deeply sorry that the incident took place, and I contacted [citizen] prior to the July 25th City Council meeting to extend my apologies for any distress caused to him and his family. I also 2 Item 1. 2 extend apologies to my colleagues on the council, and the residents of Columbia Heights.” The City Manager reached out to the citizen and asked the citizen if he would participate in an investigation should the council decide to conduct an investigation. He indicated that he would cooperate in an investigation if one is ordered by the council. Potentially Applicable Standards The Columbia Heights City Council has adopted a City Council Handbook that provides information and guidance in a number of areas. That Handbook also contains Chapter 13 titled Code of Conduct. Potentially relevant portions of this Code of Conduct provide: CHAPTER 13: CODE OF CONDUCT The mayor and council members are dedicated to promoting values and integrity of local government and democracy, and are committed to governing efficiently and effectively. After taking the oath of office as a city council member, they agree to conduct themselves in accordance with the following code of conduct:  The professional and personal conduct of council members must be above reproach and avoid the appearance of impropriety. Members should refrain from abusive conduct, personal charges, or verbal attacks upon the character or motives of other members of the council, boards, commissions, staff or the public intended to disrupt and not further the City’s business.  Council members must abide by applicable state laws, city ordinances, and other doctrines relating to conduct of a council member, including, but not limited to: conflict of interest, data practices, and the open meeting law.  Council members must maintain the confidentiality of information concerning property, personnel, or legal affairs of the city. They shall neither disclose confidential information, without proper legal authorization, nor use such information to advance their personal, financial, or other private interests.  A council member must not use the official position to secure special privileges or exemptions for themselves or others.  Each member must support the maintenance of a positive and constructive work place environment for city staff, private citizens, and businesses dealing with the city. Council members will recognize their roles, as delineated in the city charter, city code, and state statutes and in individual dealings with city staff.  No member shall, except as specifically permitted by Minnesota statutes, accept or receive any gift of substance, whether in the form of money, services, loan, travel, entertainment, hospitality, promise, or any other form under circumstances in which it could be reasonably expected to influence the member in the performance of the member’s official duties or intended as a reward for the member’s official actions.  Members of the council will not testify in their capacity as a council member, before any other board, commission, administrative officer, or agent of the federal 3 Item 1. 3 government, the state of Minnesota, or of any county or other municipal corporation, including cities, except as provided. Exceptions to the policy: o If the member is testifying in such capacity pursuant to a lawfully issued subpoena; o In the event the council has designated the member or members to act as a spokesperson for the council as a whole to explain the majority vote or council’s position.  Council members serve as a whole when representing the official policies and positions of the city council. If speaking as an individual citizen, it is important to share that it is the individual person’s perspective being presented and not that of the city or the council. In addition, council members must refrain from testifying orally or in writing as to any quasi-judicial matter being heard, or having the possibility of being heard by the council. Page 35. The same chapter also details expectations regarding Ethical Leadership. If provides, in potentially relevant part that: Ethical leadership is vital to the functioning of the City and to maintaining the public’s trust and confidence in the City and the democratic process. Key traits of ethical leaders  Recognize that ethical questions may be complex. As a result, they are willing to seek and accept the advice of knowledgeable officials such as the city manager, city attorney, or city staff.  Understand that ethical conflicts are inevitable and should be dealt with forthrightly. Elected officials are human and citizens of their community. On occasion, it is expected that they will have needs or roles in their private lives that conflict with public office obligations. Ethical officials are open about potential conflicts of interest and follow applicable rules for disclosing and dealing with the conflict (such as refraining from voting on a particular issue) to avoid even the appearance of impropriety.  Are driven by fairness. The most ethical council members recognize that many city decisions will have adverse, as well as positive outcomes, and they therefore strive to make the best decision as defined by its ultimate fairness to all concerned. This often means making impartial decisions on the merits of the issues alone, while disregarding personal allegiances. It can also mean taking into account interests of citizens who are not present or who have not otherwise commented, but who are nonetheless affected by a decision. Ethical officials try to make decisions in the best interest of all in the community, not just those who show up at a meeting or protest the loudest. 4 Item 1. 4 Know the importance of conscientious and ethical government as a value in itself. Ethical council members do not use their office or authority for revenge, prestige, or personal gain. Ethical council members recognize that government is a human institution. As a result, the human motivations of those in government will determine if the government itself is effective or ineffective, good or bad, ethical or unethical. Ethical council members care enough to make a positive difference and then act accordingly. While not specifically outlined in the Handbook, there are also reasonable expectations of the need to engage in respectful and professional communications as a representative of a City. Next Steps In instances of allegations against an individual member of an elected body, it is generally the function of the elected body as a whole to determine if there are next steps that are needed. While elected officials are not employees, the analogy to the general process to deal with complaints against employees is often instructive. In that process, the body must initially determine whether the allegations, if true, rise to the level of some policy or law violation. If they do not rise to the level of a policy or law violation, the matter may be dismissed or addressed at the initial level. If the allegations, if true, rise to the level of some policy or law violation, the next step may be to determine whether the factual allegations are true. In the instance where there is a dispute about who said what, it may warrant an investigation to determine the facts. In the present case where the council member sits as a member of a governing body, it is advised that subordinate employees not act as the neutral investigator. In making this determination, it is also important that the individual members of the council not prejudge the matter and rely upon any record that is developed. Upon a determination of the facts of the matter, the next step may be for the matter to return to the council for consideration of what action to take (if any). If the council determines that there is a policy or law violation, it is for the elected body as a whole to determine what should be the consequence. For elected officials in Minnesota, removal by the council from the elected body is not a general option.* Rather the consequences may include formal censure or removal from serving on a committee. *As a charter city, residents of the City have the ability to petition for removal. This is a citizen initiated action and the council typically plays a secondary procedural role in such an instance. 5 Item 1. 5 Recommendations and Requested Council Action: Provide direction to City staff on next steps. Potential options to consider include, but are not limited to: Option 1: No further action. For example, council determines as an initial matter that the issue involves a non- recorded conversation in which it cannot be reasonably determined who was a party to the conversation or what was said. Option 2: Council is satisfied that there is sufficient evidence presently available to make a determination of whether there has been a violation of the City Council Code of Conduct or reasonable expectations of conduct by a Columbia Heights City Council member. This typically is applicable in instances in which the relevant facts are not in dispute. Example #1 would be the council member acknowledges the conduct occurred and accepts full responsibility. Example #2 would be the council member stating beforehand that they refuse to cooperate with the investigation in an instance in which the communication is limited to two parties – one of which is the council member. In such an instance, option 3 can occur to find out if facts can be established or the council as a body can determine whether action is appropriate against the council member for their actions and failure to cooperate without further investigation. Option 3: Council wishes further investigation into the facts of the matter. This typically is applicable in instances in which the relevant facts are not all known. For example, was it the council member or a family member on the phone? Options 1 and 2 can be addressed through direction to City staff. In the event that the Council wishes to have the matter formally investigated under Option 3, it would be appropriate to make the following motion: Motion to authorize and direct the City Manager to engage an outside investigator to be selected in consultation with the City Attorney, to investigate and determine if the allegations raised at the July 25, 2022 open forum and related actions thereafter violate the City Council Code of Conduct or reasonable expectations of conduct by a Columbia Heights City Council member. 2449128_1 6 Item 1. July 29, 2022 Mayor Simula and Council members Buesgens, Murzyn, Novitsky; I have been provided information from a resident that was posted by the mayor on her social media page. Public comment by any elected official on an issue to come forward as an agenda item is prohibited by long-established policy. Not only is this an upcoming agenda item, but it is also one that is so impactful to the city and community, and me personally it requires a Special Session to move forward. Although the word “allegedly” is used, the post deviated from the city’s official statement and reveals the mayor’s empathy to the Spriggs family (clearly not undeserved) and further relates her similar personal experience. These statements reveal her bias in favor of Mr. Spriggs and flame the actions of community members. Consequently, the mayor should be prohibited from participating in any capacity moving forward. Additionally, it is undetermined if other council members have seen, “liked”, or “shared” any part of the mayor’s post which could further adversely affect the proceedings before them. I have been informed that any investigation with a determination of guilt would result in a vote of censure by the Council - not a different outcome than the action immediately available. When considering the public statements by the mayor – even though the post was removed late day on July 28th the post continued to solicit the public to view Mr. Spriggs comments, and the post was publicly available long enough to have impact, making an investigation seem to be an intentionally punitive action rather than a fact-finding process. I am asking the Council to consider an immediate vote of censure. I have taken full responsibility for the incident, had reached out to Mr. Spriggs on the afternoon of the 25th and after the Council Meeting; with full transparency met with the City Manager and Attorney immediately following the Council Meeting; faced my peers at a pre-scheduled training session; made a public apology; took action with the family member; and put security measures in place in my home to prevent any future access to my devices and files. Knowing how impactfully this affects the Spriggs family, the community, city leadership and staff is deeply seeded in my soul. No punishment can have more effect on me than living with the knowledge of what this has done. As inadequate as the words are – I am deeply sorry to everyone this has touched. Respectfully, Council member Kt Jacobs 7 Item 1.