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Council resolves how to deal with recall petitions

It took nearly two hours of detailed discussion, but the City Council has approved a resolution to regulate a petition to recall a member of an independent commission such as the city’s Civil Service Commission.

The proposal, created by Councilor Bob Scales two weeks ago and tweaked Wednesday night before approval by a 4-1 vote, simulates a jury scenario with the presentation of evidence, testimony and a final decision made by the city’s hearing examiner. The hearing examiner’s judgment will then be forwarded to the council, which ultimately has authority to appoint or remove commissioners.

The council and staff have been working on a way of fairly judging a petition to recall a commissioner after former Civil Service Commission Secretary/Chief Examiner Kim Hendrickson, whose contract was terminated in August by the city, filed a complaint with the city’s Ethics Board two weeks ago.

The complaint claims that Civil Service commissioners David Hand and George McKinney met separately  with City Manager Brenda Bauer and City Attorney Jack Johnson in violation of the Open Public Meetings Act (OPMA) and the Code of Ethics of the city’s Ethics Program.

Hendrickson later filed a petition to remove Hand and McKinney from office.

The meetings occurred after Hand and McKinney had separately resigned their posts after some of their actions were challenged by Hendrickson. Both commissioners then rescinded their resignations after meeting with Bauer and Johnson.

Bauer said Wednesday that her meeting with the commissioners was routine, “and was not the deciding factor (in them rescinding their resignations) and that had nothing to do with me.”

Johnson, who has resigned as city attorney effective later this month, issued a legal opinion last week that said it did not appear that the commissioners were in violation of state law.

The city, however, had not created a process to handle the removal of commissioners from the city’s three independent commissions – the Planning Commission, Salary Commission and the CSC.

The Civil Service Comm-ission, a three-member volunteer citizen committee responsible for independent oversight of police department hires and employment decisions, has been in turmoil for nearly two months

The city’s Ethics Board delivered a preliminary determination two weeks ago, stating that the facts in the ethics complaint are credible and that the transparency requirement of the Code of Ethics appears to have been violated.

Hand and McKinney will have an opportunity to provide written response prior to the Oct. 17 Ethics Board meeting to explain their positions on the complaint. Neither Commissioner Robert Fernandez, who later self-reported attending the meetings, or the city employees at the meeting, were addressed in the complaint.

But the Ethics Board, Johnson said, has no authority in a recall petition, which is why Scales set out to establish a  process that allows the city to fairly deal with such action.

The council’s four attorneys (including Scales) and Councilor Debbi Lester carefully went over his preliminary resolution Wednesday evening, and eventually Lester voted against the proposed new resolution.

However, council members Bill Knobloch and Kim Brackett recused themselves when the discussion became detailed. They said they were uncomfortable being involved because they had attended meetings that dealt with the matters on which Hendrickson based her complaints.

There were only a few minor changes made from the preliminary proposal, which, was based on the following resolution:

• Under state law, members of the Civil Service Commission may be removed from office only for incompetency, incompatibility or dereliction of duty or malfeasance in office, or other good cause;

• State law also provides that no member of the commission shall be removed until charges have been prepared in writing and due notice and a full hearing had;

• The city has two other independent commissions, the Salary Commission and the Planning Commission, whose members also may only be removed for good cause;

• State law provides that a petition seeking the removal from office of an elected official will be reviewed by a court to determine the legal factual sufficiency of the charges before submitted for a recall election;

• The city’s ethics program provides that complaints be screened by the Ethics Board for sufficiency before being referred to the City Council for a possible hearing by the city’s Hearing Examiner;

• State law does not specify and the city has not adopted a process to handle a petition seeking the removal of the member of an independent city commission; therefore

• The City Council intends to adopt a process to handle a petition seeking the removal of a commissioner from any of its three independent commissions that meets the requirements of state law and is both efficient and fair.

In essence, the  council determines if there is sufficient cause for removal, and if so, then it prepares a charging document forwarded to the Hearing Examiner; council may also add charges.

If the Hearing Examiner concludes that the charges are factual and legally sufficient, the council schedules a public hearing and then votes to remove or retain the commissioner.

Scales said because the resolution is dealing with an appointed official, not an elected one, there needs to be “a middle process, one that takes components from the Ethics Board and the recalling of an elected official.”

Lester questioned, “Why are we, in essence, raising this to the elected offical level when we already have criteria for removal of an appointed official. I”m afraid we are raising the bar to an elected official recall level.”

Scales said he was proposing a “hybrid” of the two.

 

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