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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 08/20/2002 - RESOLUTION 2002-082 ADOPTING GUIDELINES FOR EXECUT 17 AGENDA ITEM SUMMARY ITEM NUMBER: 37 DATE: August 20, 2002 FORT COLLINS CITY COUNCIL STAFF: Steve Roy SUBJECT: Resolution 2002-082 Adopting Guidelines for Executive Sessions. RECOMMENDATION: Staff recommends adoption of the Resolution. EXECUTIVE SUMMARY: By adoption of this Resolution,Council would approve the use of certain forms related to executive sessions in order to ensure that such sessions are conducted in compliance with applicable law. #CKGROUND: The City Code permits the City Council and boards and commissions of the City to discuss certain kinds of confidential matters in executive (non-public)sessions. These matters are limited to those described in Section 2-31 of the City Code. They are:personnel matters,conferences with attorneys for the City, consideration of water and real property acquisitions and sales by the City, and consideration of electric utility matters pertaining to issues of competition in the industry. A number of specific rules have been enacted, both at the state and local level, to ensure that executive session discussions are limited to the permitted topics and to ensure that no formal action is taken in executive session. For example,a Councilmember or board or commission member who makes a motion to go in to executive session must specify the particular provision of law that permits the executive session. Additionally,executive sessions must be tape recorded(except for attorney- client discussions) and the tape recording must be retained for ninety days in case there is any concern about the topic actually discussed in the executive session or whether formal action was taken during the session. In order to alleviate any confusion about the rules pertaining to executive sessions and in order to ensure that such sessions are conducted in compliance with the law, the City Attorney's Office has prepared, at Council's direction,certain policies and procedures governing the holding of executive sessions, together with forms to be used in making a motion to move to go into executive session and at the beginning and end of each session. Those forms are included in the agenda materials and 10 are attached to the resolution. DATE: ITEM NUMBER: The City Council Governance Committee has reviewed the proposed policies and procedures and other forms and has recommended their adoption by the City Council. The proposed Resolution would approve the use of these forms and would direct the City Clerk to distribute them to all boards and commissions of the City, as well as to the City Council. . RESOLUTION 2002-082 OF THE COUNCIL OF THE CITY OF FORT COLLINS ADOPTING GUIDELINES FOR EXECUTIVE SESSIONS WHEREAS, the City Charter and City Code authorize the City Council and boards and commissions of the City to discuss certain kinds of confidential matters in executive session; and WHEREAS,the City Code specifies in Sections 2-31 and 2-71 the purposes for which such executive sessions may be held and sets forth additional rules regarding executive sessions; and WHEREAS,the City Council Governance Committee has recently reviewed certain proposed policies and procedures governing the holding of executive sessions,together with other forms that it believes would help ensure that executive sessions held by the City Council and boards and commissions of the City properly conform to all relevant legal requirements,and has recommended such policies and forms to the City Council for adoption; and WHEREAS, the City Council believes it to be in the best interests of the City to adopt the same. NOW,THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the policies, procedures and forms pertaining to executive sessions, which are attached hereto as Exhibits "A" through "D" and incorporated herein by this reference, are hereby approved by the City Council for use by the City Council and all boards and commissions of the City when executive sessions are held by such bodies. Section 2. That the City Clerk is hereby directed to distribute the above-referenced forms to all boards and commissions of the City, as well as to the City Council, for its use. Passed and adopted at a regular meeting of the City Council held this 20th day of August, A.D. 2002. Mayor ATTEST: City Clerk CITY OF FORT COLLINS, COLORADO EXHIBIT "A" POLICIES AND PROCEDURES GOVERNING THE HOLDING OF EXECUTIVE SESSIONS The following policy and procedures are based upon the provisions of Sections 2-31 and 2-33 of the Fort Collins City Code and C.R.S. §24-6-402(4). 1. An executive session may not be held unless affirmatively approved by two thirds (2/3) of the quorum present. 2. The motion to go into executive session must include specific reference to the particular section of the City Code that authorizes the session and must identify the particular matter to be discussed in as much detail as possible without compromising the purpose for which the session is authorized. 3. Each executive session shall be recorded by portable tape recorder except as set forth herein. If the tape recorder is unavailable or is not operating,minutes shall be taken and kept by the City Clerk, if present, or by the presiding officer if the City Clerk is not present. The tape recorder shall be tested before going into executive session to make sure it is operating and the tape shall be labeled with the name of the City Council and the date of the recording. . 4. The tape shall stand as the minutes of the executive session without the need for further approval. If written minutes are taken, due to the tape recorder not operating, the written minutes shall be approved at a future executive session. Upon completion of the executive session, the label on the tape recording shall be initialed or signed by the presiding officer. 5. The City Clerk shall maintain possession of the recorded tape of the executive session for ninety (90) days after the date of the executive session. The tape, or the contents thereof, shall not be disclosed to any person except as permitted or required by law. 6. The recorded tape must reflect the specific legal citation authorizing the executive session and the actual contents of the discussion during the session. If written minutes are taken,the minutes must include a signed statement from the presiding officer attesting that the minutes substantially reflect the substance of the discussion during the session. 7. If the executive session (or a portion of it) constitutes a privileged attorney-client communication in the City Attorney's opinion, and the City Attorney so states on the record, no further record shall be maintained of that communication. If written minutes are kept,those minutes must include: (a) a signed statement from the attorney attesting that the unrecorded session (or portion) constituted a privileged attorney-client communication in the attorney's opinion, and (b) a signed statement from the presiding officer attesting that the unrecorded session (or portion) was confined to the topic authorized for discussion in an executive session. EXHIBIT "B" EXECUTIVE SESSION MOTION FORM I MOVE TO GO INTO EXECUTIVE SESSION: For discussion of a personnel matter under Sec. 2-31 of the City Code involving the hiring, appointment, dismissal, demotion, promotion, assignment or discipline of City personnel; involving the review and discussion of the performance and proposed compensation and benefits of the City Manager, City Attorney and/or Municipal Judge; involving the consideration of complaints or charges against individual City personnel, since the individual concerned has not requested that this matter be considered in open session; involving the consideration of actual or hypothetical situations involving potential conflicts of interest with individual Councilmembers or City board or commission members; involving the consideration and discussion of strategy matters related to negotiations with employee groups. For confer with the City Attorney regarding litigation or potential litigation involving the City and/or the manner in which particular policies,practices or regulations of the City may be affected by existing or proposed revisions of federal, state or local law. To consider a water or real property acquisition and sale by the City, restricted to the consideration of appraisals and other value estimates and the consideration of strategy for the acquisition or sale of such property. To consider electric utility matters pertaining to issues of competition in the electric utility industry. The following additional details are provided for identification purposes: • ANNOUNCEMENT NO. 1 EXHIBIT "C" TO BE MADE BY PRESIDING OFFICER AT THE BEGINNING OF THE EXECUTIVE SESSION(MAKE SURE THE TAPE RECORDER IS TURNED ON; DO NOT TURN IT OFF DURING THE EXECUTIVE SESSION UNLESS SO ADVISED BY THE CITY ATTORNEY) It's (date),and the time is .m. For the record,I am the presiding officer, . As required by the Open Meetings Law, this executive session is being electronically recorded. Also present at this executive session are the following persons: This is an executive session for the following purpose: (repeat the language of the motion, including the statutory citation) I caution each participant to confine all discussion to the stated purpose of the executive session,and that no final legislative action may occur in the executive session. If at any point in the executive session any participant believes that the discussion is going outside the proper scope of the executive session, please interrupt the discussion and make an objection. • EXHIBIT "D" ANNOUNCEMENT NO. 2 TO BE MADE BY PRESIDING OFFICER BEFORE CONCLUDING THE EXECUTIVE SESSION(W HILE THE TAPE RECORDER IS STILL TURNED ON) The time is now .m. We now conclude the executive session and will return to the open meeting. The participants in the executive session were: For the record, if any person who participated in the executive session believes that any substantial discussion of any matters not included in the motion to go into the executive session occurred during the executive session,or that any improper action occurred during the executive session in violation of the City Code or state law, I would ask that you state your concerns for the record. Hearing none, the Council will return to the open meeting. COUNCIL GOVERNANCE COMMITTEE July 16, 2002 The Council Governance Committee met on July 16, 2002 at 4:00 p.m. in the City Manager's Conference Room in City Hall West, 300 LaPorte Avenue. In attendance at the meeting were Committee members Bill Bertschy,Ray Martinez,and Karen Weitkunat. Council and staff members present at the meeting were Councilmember Eric Hamrick, City Manager John Fischbach,Deputy City Manager Diane Jones,Assistant City Manager Darin Atteberry, City Attorney Steve Roy,City Clerk Wanda Krajicek,Finance Director Alan Krcmarik, and Chief Deputy City Clerk Rita Harris. Executive Session Protocol The Committee reviewed draft policies and procedures governing the holding of executive sessions, as well as a form containing options for wording of a motion to go into executive session and announcements to be made on the taped record of an executive session. It was noted that these documents are intended to be used by boards and commissions, as well as the Council. Mayor Pro Tem Bertschy stated he liked the checklist of motions for going into an executive session and the language for the announcements. The Committee unanimously recommended Council adoption of the policies. E-mail Assistant City Manager Atteberry reviewed the goals established by Council for development of an e-mail policy. He outlined the options available in the development of a policy. He spoke briefly of the types of communications that constitute appropriate use of e-mail, including"straw polls". City Attorney Roy noted that the Council would be considering an ordinance at tonight's meeting that, if approved, would clarify that the only electronic communication that would constitute a meeting would be when several Council members are participating in a chat room environment simultaneously. He stated he believes straw polls are permissible under the law,but it's a matter of policy as to what the Council wants to allow. He reminded the Committee that this issue came up at a retreat as a concern of Councilmember Tharp. He stated staff is seeking direction on whether the Council wants to adopt a policy about the kinds of communications that are appropriate or inappropriate. He noted that the other administrative components of an e-mail policy regarding retention and storage of a-mails is being drafted by staff. Mayor Pro Tem Bertschy stated he is uncomfortable with allowing"straw polls",stating he believes and expression of an opinion should be done publicly. City Attorney Roy stated it is very helpful to staff to receive input from individual Councilmembers when drafting an ordinance or resolution.