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Home My WebLink About2001-07-31 Info Packet of 7/26 CITY COUNCIL INFORMATION PACKET I JULY 30 WORK SESSION ITEMS I IP1 Memorandum from City Attorney: Smoking in Restaurants I MISCELLANEOUS ITEMS I IP2 Memorandum from City Manager: Wetlands Mitigation IP3 Memorandum from City Attorney: Proposed Amendments to the Home Rule Charter IP4 Memorandum from City Clerk: July 9 Work Session IP5 Memorandum from Water Superintendent to Public Works Director: Iowa City Drinking Water Usage IP6 Memorandum from Police Chief: Traffic Data Collection IP7 Email from Rhys Jones to Planning and Community Development Assistant Director: Lexington Barrier IP8 Email from Carol DeProsse to Carol DeProsse: Iowa City Schools Memorandum from Assistant City Manager: Request from PATV for Facility Funding City of Iowa City MORANDUM DATE: July 24, 2001 TO: City Council FROM: Eleanor M. Dilkes, City Attorney RE: Smoking in restaurants At its earlier work session the Council expressed interest in proceeding with an ordinance prohibiting smoking in restaurants but exempting establishments whose alcohol sales account for 50% or more of gross receipts for food and beverages. The Council asked that staff first obtain information to assist the City Council in determining which establishments would be covered and which would be exempt under this scheme. This information is not available from either the Alcoholic Beverages Division or the Department of Health, Therefore, a survey of establishments was necessary. On June 18, 2001, my office sent eighty-three (83) survey letters to liquor license holders. We received forty-nine (49) responses, with seven (7) respondents providing written comments. I have attached a list identifying each licensee and its response, as well as copies of any written comments received. cc: Steve Atkins Dale Helling Madan Karr Sarah Holocek Andy Matthews eleanor/mere/smoking 2.doc Do sales of alcoholic beverages sold on premises account for 50% or more of your total receipts Establishment for food and beverages sold on Written Name premises? Comments Made? The Airliner No No American Legion Post # 17 Yes No Elks Lodge #590 No No Baldy's Wraps No No Bo-James No No Bob's Your Uncle No No The Brown Bottle No No Carlos O'Kelly's Mexican Caf~ No No The Cottage Bakery & Caf~ No No Dave's Foxhead Tavern Yes No The Deadwood Yes No Devotay No No Dublin Underground Yes No Fraternal Order of Eagles #695 Yes No George's Buffet Yes No Givanni's No Yes The Green Room Yes No Gringo's No No Ground Round No No Happy Joe's Pizza No No Hilltop Lounge Yes No India Caf~ No No It's Brothers Bar & Grill Yes No Joe's Place Yes No The Kitty Hawk No No LaCasa No No Linn Street Cafe, Inc. No Yes Loyal Order of Moose Lodge # 1096 No No Masala No No Memories Yes No Mike's Tap Yes No The Mill Restaurant No Yes Mondo's No Yes Mumm's Saloon & Eatery Yes Yes New Yen Ching Restaurant No No Outer Limits of Iowa City Yes No Pagliai's Pizza No Yes Panchern's No No Panthero's Mexican Grill No No The Sanctuary Yes Yes Serendipity No No Shakespeare's Yes No Sports Column Corp. Yes No T.G.I. Fridays No No Tuck's Place Yes No Union Bar Yes No The Vine Tavern No No Weeks-Van Eck V.F.W. Post #3949 Yes No Zio Johno's Spaghetti House No No -_ June 18, 2001 ~ Ci[~ O~ Givanni's 109 East College Street Iowa City, [A 52240 Dear Owner or Manager: At a recent work session, the City Council of Iowa C~ty expressed its roterest in enact3ng an ordinance to prohibit smoking in restaurants but exempting those establishments whose sales of alcoholic beverages account for 50% or more of the establishment's gross receipts for food and beverages. To the extent possible, prior to proceeding with the ordinance, the Council would like to determine which establishments would be exempt under the above scheme. This information is not readily available from other sources. Therefore, at the City Council's request, we are surveying Iowa Cily establishments in an attempt to give the Council a picture of what types of establishments would be covered by the proposed ordinance. If you would like to assist in providing the City Council with the information it seeks, please answer the following question with respect to the above establishment and return this letter in the enclosed stamped self-addressed envelope: On average, do your sales of alcoholic beverages sold on premises account for 50% or more of your total receipts for food and beverages sold on premises? Yes Y No If you wish to respond, please check "Yes" or "No" and return this letter in the enclosed sLarnp~d, - !f-~ddi,~sed envelope on or before "'!" 20. 2001. Thank you for your assistance. a~ t 'F/4 1 n k 14- s/4 e v I cf City Attorney T'14¢ ~ u s -k o /~ e r eleanodltrs/smokmgsurveydoc ~'1t' ,b / S Z~ A4. C ,~ z ~ . 410 EAST WASHINGTON STREET · IOWA CITY, IOWA 52240 IR26 · 1~)9) ]565000 · FAX (]19) ]56 5009 June 18, 2001 l.,~//~.:t~ I}~ i.,,,......,.,.,,,,.,.,....11 C The Liltn Street Cafc Iowa City, IA 5224S Dear Owner or Manager: At a recent work session, the City Council of Iowa CRy expressea Its interest in erlac[lng an ordinance to prohibit smoking in restaurants but exempting those establishments whose sales of alcoholic beverages account for 50% or more of the establishment's gross receipts for food and beverages. To the extent possible, prior to proceeding with the ordinance, the Council would like to determine which establishments would be exempt under the above scheme. This information is not readily available from other sources. Therefore, at the City Council's request, we are surveying Iowa City establishments in an attempt to give the Council a picture of what types of establishments would be covered by the proposed ordinance. If you would like to assist in providing the City Council with the information it seeks, please answer the following question with respe~ to the above establishment and return this letter in the enclosed stamped self-addressed envelope: On average, do your sales of alcoholic beverages sold on premises account for 50% or more of your total receipts for food and beverages sold on premises? Yes ~ No If you wish to respond, please check "Yes" or "No" and return this letter in the enclosed ,,tamped, se Thank you for your assistance, BeanorM. Dilkes City Attorney /L June 18, 2001 hhh,,hl,,hl,h,llh,h,,ll The Mii! Restau~'ant 120 East Burlington Street Iowa Cib'. IA 52240 Dear Owl~er or Manager: At a recent work session, the City CounciI of Iowa City expressed its ~nteres~ ~n enacting an ordinance to prohibit smoking in restaurants but exempting those establishments whose sales of alcoholic beverages account for 50% or more of the establishment's gross receipts for food and beverages. To the extent possible, prior to proceeding with the ordinance, the Council would like to determine which establishments would be exempt under the above scheme. This information is not readily available from other sources. Therefore, at the City Councirs request, we are surveying Iowa City establishments in an attempt to give the Council a picture of what types of establishments would be oovered by the proposed ordinance, If you would like to assist in providing the City Council with the information it seeks, please answer the following question with respect to the above establishment and return this letter in the enclosed stamped self-addressed envelope: On average, do your sales of alcoholic beverages sold on premises account for 50% or more of your total receipts for food and beverages sold on premises? Yes ¢ No If you wish to respond, please check "Yes" or "No" and return this letter in the enclosed stam-,ed ,-~,r ,.~..~=~H .~,-,, ~lt~n~, on or before I I~z 90 2001 Thank you for your assistance. ~' ~ '~ ~/'~ '/C' ~j June 18, 2001 ~Cit % Mondo's 212 South Clinton Street Iowa City, IA 52240 Dear Owner or Manager: At a recent work session, the City Council of iowa City expressed its interest in enacting an ordinance to prohibit smoking in restaurants but exempting those establishments whose sales of alcoholic beverages account for 50% or more of the establishment's gross receipts for food and beverages. To the extent possible, prior to proceeding with the ordinance, the Council would like to determine which establishments would be exempt under the above scheme. This information is not readily available from other sources. Therefore, at the City Council's request, we are surveying Iowa City establishments in an attempt to give the Council a picture of what types of establishments would be covered by the proposed ordinance. [f you would like to assist in providing the City Council with the information it seeks, please answer the following question with respect to the above establishment and return this letter' in the enclosed stamped self-addressed envelope: On average, do your sales of alcoholic beverages sold on premises account for 50% or more of your total receipts for food and beverages sold on premises? Yes X' No-~/~iC%b~-V'V\ ~" &'~ C~ If you wish to respond, please check "Yes" or "No' and return this le~er in the enclosed stamped, self-addressed envelope on or before july 20, 2001. Thank you for your assistance. Eleanor M. Diikes City Attorney eleanor/Itr~smok~ngsuNey d~ 410 EAST WASHINGTON STREET · IOWA CITY, IOWA 52240 1826 · (319) 356-5000 · FAX (1191 t56-5009 June 18, 2001 I.......,.,...........,,.,...., ~umm's Saloon ~ ~at¢ 2] West Benton Street Iowa Chy, [~ 52246 Dear Owner or Manager: At a recent work session, the City Councij of iowa City expressed its interesL in enacting an ordinance to prohibit smoking in restaurants but exempting those establishments whose sales of alcoholic beverages account for 50% or more of the establishment's gross receipts for food and beverages. To the extent possible, prior to proceeding with the ordinance, the Council would like to determine which establishments would be exempt under the above scheme. This information is not readily available from other sources. Therefore, at the City Council's request, we are surveying iowa City establishments in an attempt to give the Council a picture of what types of establishments would be covered by the proposed ordinance. If you would like to assist in providing the City Council with the information it seeks, please answer the following question with respect to the above establishment and return this letter in the enclosed stamped self-addressed envelope: On average, do your sales of alcoholic beverages sold on premises account for 50% or more of your total receipts for food and beverages sold on premises? / Yes No / If you wish to respond, please check "Yes" or "No" and return this letter in the enclosed stamped, seif~addressed enveiop~ un ur before July 20, 2001. Thankyo. foryourassis,ance.,O) /!' June 18, 2001 Pagliai's Pizza 302 E. Bloomi~Ston Street Zowa City, ~A 52245 Dear Owner or Manager: /~t a recent work session, the City Codflcil u[ [uw~ Ci[.~ exp,essad ;is ;nt~.:es:. i:: cns,::ir,.g sn ordinance to prohibit smoking in restaurants but exempting those establishments whose sales of beverages. To the extent possible, prior to proceeding with the ordinance, the Council would like to determine which establishments would be exempt under the above scheme. This information is not readily available from other sources. Therefore, at the City Council's request, we are suNeying Iowa City establishments in an attempt to give the Council a picture of what types of establishments would be covered by the proposed ordinance. If you would like to assist in providing the City Council with the information it seeks, please answer the following question with respect to the above establishment and return this letter in the enclosed stamped self-addressed envelope: On average, do your sales of alcoholic beverages sold on premises account for S0% or more of your total receipts for food and beverages sold on premises? If you wish to respond, please check "Yes" or "No" and return this letter in the enclosed stamped, self-addressed envelope on or before July 20, 2001. Thank you for your assistance. Eleanor M. Dilkes e[eanor/Itrs/smok~ngsu~ey 410 EAST WASHINGTON STREET · IOWA CITY. IOWA 52240.1826 - (319) 356 5000 * FAX 1319) 356-5009 June 18, 2001 ~ City The Sanctuary Restaurant 405 South Gilbert Street Iowa City, IA 52240 Dear Owner or Manager: At a recent work session, the City Council of iowa City expressed its ,~terest in enacting ordinance to prohibit smoking in restaurants but exempting those establishments whose sales of alcoholic beverages account for 50% or more of the establishment's gross receipts for food and beverages. To the extent possible, prior to proceeding with the ordinance, the Council would like to determine which establishments would be exempt under the above scheme. This information is not readily available from other sources. Therefore, at the City Councirs request, we are surveying Iowa City establishments in an attempt to give the Council a picture of what types of establishments would be covered by the proposed ordinance. If yod Would like to assist in providing the City Council with the information it seeks, please answer the following question with respect to the above establishment and return this letter in the enclosed stamped self-addressed envelope: On average, do your sales of alcoholic beverages sold on premises account for 50% or more of your total receipts for food and beverages sold on premises? L////Yes No if you wish to respond, please check "Yes" or "No" and return this letter in the enclosed stamped, self-addressed envelope on or before july 20, Thank you for your assistance, Eleanor M. Dilkes City Attorney eleanorlltrslsmokingsurvey 410 EAST WASHINGTON STREET * IOWA CITY. IOWA 52240 1826 · (319) 356 5000 * lAX (3191 356-5009 City of Iowa City MEMORANDUM DATE: July 25, 2001 TO: City Council FROM: City Manager RE: Wetlands Mitigation At the Council meeting on July 10, Becky Soglin of Environmental Advocates and IWIN (Iowa Wetlands in Need) addressed the Council about local policy regarding the regulation of wetlands. Her comments were in response to the Supreme Court determination of the U.S. Army Corps of Engineers' jurisdiction in wetlands regulation and Sarah Holecek's memorandum of July 9. The staff has had discussions about changes in regulatory practice at the local level resulting from the Supreme Court decision. They are continuing to look at the consequences of the decision for us. I have instructed them to provide me with the arguments for leaving our Sensitive Areas Ordinance as is, thereby adopting the "new" Corps jurisdictional definition, and the arguments for a higher level of review than required by the Federal government. I expect to have a recommendation for the Council for your August 20 work session. In reviewing public projects in progress, the only project in progress or under design for FY2002 that is affected by the Court decision is the Scott Boulevard project. The wetland that is eliminated from consideration is a farm pond, which happens to have importance for the property owner who has worked with our design team to avoid the pond anyway. The other projects cited in Sarah's memorandum provide for compensatory wetlands and therefore are not affected by the decision. Thus, there does not appear to be any imperative for immediate consideration of this issue on your already full agenda of July 30. cc Karin Franklin Julie Tallman Sarah Holecek mg~mem/wetlands,doc City of Iowa City MEMORANDUM RE-PRINTED DUE TO PAGINATION ERROR DATE: July 26, 2001 To: c,tycounc,, FROM: Eleanor M Dilkes, City Attorney RE: Proposed Amendments to the Home Rule Charter I. INTRODUCTION The City Council has asked that I give my opinion on the legality of the proposed amendments to Iowa City's Home Rule Charter that are currently being circulated for signatures. I have seen several versions of the amendments. Attached, from the website http://charteramendments.org, is a copy of the proposed amendments I will comment on here. II. CONCLUSIONS A. It is my opinion that Amendment No. 1 regarding retention elections for the City Manager and Police Chief is likely inconsistent with the state statutory scheme for city government, which distinguishes between elected and appointed officials, and with which a Home Rule Charter must be consistent. In addition, assuming Steve Atkins is still City Manger at the time of the first retention election is 2003, it is my opinion that the charter amendment and the results of such an election would have no effect on the City's obligation under his employment contract, a provision of which requires 6 months of severance pay upon termination. Finally, the language of the amendment lacks the cladty one would like to see in legislation, leaving a number of questions unanswered and making enforcement difficult. B. It is my opinion that Amendment Nos. 2 and 3 entitled "Police Citizen's Review Board" and "Community Policing" are not addressed to the 'form of government", and therefore, are not charter amendments, but rather, proposals for local legislation which if made by petition should be made pursuant to the provisions for Initiative and Referendum set forth in Article VII of the Charter. C. There are a number of procedural questions which I have highlighted in the final section of this memo, most of which cannot be fully addressed until the petitions are presented for filing. III. ANALYSIS A. BACKGROUND In order to provide background and a framework for analysis, before addressing the specific amendments I will review the relevant statutes, City Charter provisions and legal principles. 1. Under Chapter 372 of the Iowa Code, there are six forms of city government: 1) Mayor-Council or Mayor-Council with appointed Manager; 2) Commission; 3) Council- Manager-at-Large; 4) Council-Manager-Ward; 5) Home Rule Charter; and 6) Special Charter. Iowa City has a Home Rule Charter form of government. Under section 372.10 a Home Rule Proposed Amendments to the Home Rule Charter July 26, 2001 Page 2 Charter must contain provisions for "the powers and duty of the mayor and the council, consistent with the provisions of the City Code." The "City Code" are those chapters of the Iowa Code dealing with cities (Chapters 362, 364, 368, 372, 376, 380, 384, 388 and 392). See Iowa Code §362.1 (2001). Iowa City's existing Home Rule Charter essentially provides for a Council/City Manager form of government with a variation on the at-large and ward forms of government otherwise authorized by State Code, in that three districts are created and three of the Council Members must live in and are nominated from districts, but all voters vote in both the district and at-large races. 2. Pursuant to Iowa Code Section 372.9(8)(d), the adoption of the charter "does not alter any right or liability of the City in effect at the time of the special election at which the charter was adopted." 3. By constitution and statute, cities in Iowa have "Home Rule" authority "to determine their local affairs and government," but only to the extent those determinations are "not inconsistent with the laws of the General Assembly." See Article III, Section 38A of the Iowa Constitution and Iowa Code §364.1. The Iowa Supreme Court has, on many occasions, opined on the bounds of Home Rule authority. 4. Under Section 372.11 of the Iowa Code, a Home Rule Charter may be amended by one of three methods, including the following: "If a petition valid under the provisions of Section 362.4 is filed with the Council proposing an amendment to the Charter, the Council must submit the proposed amendment to the voters at a special City election, and the amendment becomes effective if approved by a majority of those voting." Section 8.01 (c) of the City Charter tracks the state code provision. Unlike other provisions contained in Chapter 372 (e.g., Section 372.13 regarding the calling of an election to fill a Council vacancy), Section 372.11 does not specify when the special election at which the proposed amendment is submitted to the voters must be held. A regular city election is held for nomination or election of officers of the City; a special City election is one held for any other purpose. Iowa Code §39.3. A special election can, but need not, be held on the same day as a regularly scheduled City election. Iowa Code Section 39.2. Under Section 362.4 of the Iowa Code, if a petition is presented to the City Clerk, it must include the signatures of the petitioners, a statement of their place of residence, and the date on which they signed the petition. The petition is valid if signed by eligible electors of the City equal in number to 10% of the persons who voted at the last preceding regular City election (the City Clerk tells me this is 785 (10% of 7,842)). If the petition is valid on its face, the City Clerk shall accept it for filing. If it lacks the required number of signatures, it shall be returned to the petitioner. Petitions which have been accepted for filing are valid unless written objections are filed with the City Clerk within five working days after the petition is received. The objection process in Section 44.8 is to be followed. Section 44.8 provides for objections to be considered by the Mayor and Clerk and one member of the Council chosen by the Council by ballot. 5. Article VII of Iowa City's Home Rule Charter sets forth an initiative and referendum procedure whereby qualified electors have the right to propose ordinances to the Council and, if the Council fails to adopt an ordinance so proposed without any change in substance, to have the ordinance submitted to the voters at an election. Under Article VII, "ordinance" means "all measures of a legislative nature. however designated, which (a) are of a permanent rather than temporary character and (b) include a proposition enacting, amending, or repealing a new or existing law, policy or plan, as opposed to one providing for the execution or administration of a law, policy or plan already enacted by Council." The procedure for initiative and referendum is different than the procedure for amendment of the charter by petition, Among other things, initiative and referendum petitions must be signed by "qualified" (registered) electors equal in Proposed Amendments to the Home Rule Charter July 26, 2001 Page 3 number to at least 25% of the number of persons who voted at the last regular City election but not less than 2,500. 6. The electorate has no greater power to legislate than does the City Council itself. McQuillan, Municipal Corporations §16.49 (3d ed.) B. PROPOSED AMENDMENT REGARDING THE RETENTION ELECTION FOR THE CITY MANAGER AND POLICE CHIEF. As noted above, Section 372.10 of the Iowa Code requires that the powers and duties of the Mayor and the Council be consistent with the provisions of the "City Code". Under other city manager forms of government (Council-Manager-At-Large form and Council-Manager-Ward form), the State Code specifically provides that the Council "shall appoint a manager'. Iowa Code §372.6 and §372.7. These sections are not directly applicable to the Home Rule Charter form, Arguably, a Home Rule charter could change the method of appointment of the City Manager. Applicable to all forms of government, however, is the provision found at Section 372.13 entitled "The Council", which provides that the "appointment" of a City Manager "must be made on the basis of that individual's qualifications and not on the basis of political affiliation." Similarly, under Section 400.13 of the Civil Service provisions of the State Code, the Chief of the Police Department is to be "appointed from the ChieFs Civil Service eligible list." In cities under a Council-Manager form of government, the City Manager makes the "appointment" of the Police Chief with the approval of the City Council, and in all other cities the "appointment" is made as provided by City Ordinance or City Charter. While the Home Rule Charter could likely change the method of appointment of either the City Manager or Police Chief, it is the retention election aspect of the proposed amendment that is troubling. In Chapter 372, the words "election" and "appointment" are used often and have very different meanings. In Black's Law Dictionary, the definition of the term "election" stresses a distinction between election and appointment, with appointment referring to a "choice or selection by an individual", while election refers to a "choice or selection by electors'. Black's Law Dictionary (5th ed. 1978). Significantly, under the Commission form of government, the State Code specifically authorizes the City Council to "appoint" the City treasurer or provide for that officers election, indicating that the legislature views the term "appoint" to have a different meaning than "elect". In contrast to an appointment. a candidate in a retention election must vie for popular support. See HomsbV v Campbell, 480 S.E. 2d 189, 191 (Ga 1997) (holding that a retention election constituted an "election"); Sinawski v. Cvevas, 506 NY.S. 2d 396, 398 (N.Y.S.Ct. 1986) (holding that recall of city officials by direct vote of electorate was not a proper subject for a charter amendment and distinguishing between "removal" as authorized by statute and "recall"). An in depth analysis of the Iowa Supreme Court's home rule precedent, as will be required if these matters are litigated, is beyond the scope of this memo. I have, however, during the course of my research reviewed many of those cases again. While the words used by the Court in home rule cases are the same, the results vary and recent cases have divided the Court. It is very difficult, I believe, to predict the result in a particular case. For example, in City of Clinton v. Sheridan, 530 N.W.2d 690 (Iowa 1995), the Iowa Supreme Court held that initiative and referendum provisions of Clinton's Home Rule Charter were not inconsistent with State statutes that placed limits on how the City Council exercised its power. In the more recent case of Goodall v. Humboldt County 575 N.W. 2d 486 (Iowa 1998), in a decision written by Justice Ternus, who filed a dissenting opinion in City of Clinton, the Supreme Court held that ordinances enacted by the Humboldt County Board of Supervisors regulating large livestock confinement facilities were irreconcilable with State law because they revised a State regulatory scheme, and Proposed Amendments to the Home Rule Charter July 26, 2001 Page 4 therefore, were prohibited. In this opinion Justice Tenus stated: "As noted earlier, any local ordinance must remain faithful to the legislative intent underlying a state statute." Id. at 506 In light of the Goodall case, the dichotomy repeatedly established in State Code between elected and appointed officials and the specific provision of Section 372.11, which requires Home Rule charters to be consistent with the provisions of State Code. In my opinion the proposed amendment subjecting the City Manager and Police Chief to retention vote likely is irreconcilable with State law, and therefore preemptad. The current City Manager has an employment contract with the City. Pursuant to Iowa Code Section 372.9(8)(b) the adoption of the charter does not alter any right or liability of the City in effect at the time the Charter is adopted. In my opinion this would apply equally to charter amendments. Steve Atkins's contract provides for six months severance pay if he is terminated when he is willing and able to perform his duties except in limited circumstances involving conviction of a crime involving personal gain. The proposed amendment calls for the first retention vote to be held in 2003. Assuming Steve Atkins is still the City Manager in 2003, it is my opinion that the charter amendment will have no effect on the City's obligations under this contract. Finally, the language of the proposed amendment lacks the clarity one would like to see in legislation. For example: Is a retention vote held every 4 years without regard to when the manager or the police chief is initially appointed? The language talks about the "appointment" being subject to a retention vote every four years beginning in 2003 but seems to say there will be a retention election every other regular election without regard to the date of appointment. Does a manager who is appointed in August 2007 stand for retention election in November 2007? Can a manager or police chief who is not retained be later re-appointed by Council? Can a manager or police chief who is retained be terminated by Council? How many votes must the manager or chief receive to be retained? C. PROPOSED AMENDMENT #2 ENTITLED "POLICE CITIZEN'S REVIEW BOARD" This amendment seeks to amend Article 5 of the charter entitled "Boards, Commissions, and Committees." In general, Article 5 currently allows the Council to establish boards, to appoint persons to those boards and remove them in accordance with state law, and to establish rules for the boards. The proposed amendment is to create a "permanent" Police Citizens Review Board vesting it with certain minimum powers. While the proposed language creates some ambiguities and difficulties in terms of interpretation and implementation, I do not believe such legislation, if enacted, would be inconsistent with state law. I will touch onty briefly on my concerns about the lack of clarity in the language. First, the introductory phrase being added to Section 5.01 "with the exception of the Police Citizens Review Board" is misplaced. Read literally it says the Council could not establish the Police Citizens Review Board and specify title, duties, length of terms, etc. Secondly, subparagraph A2 states that the Police Citizens Review Board must investigate citizen "claims of misconduct by sworn police officers." As you know in your dealings with the current ordinance, citizens make complaints or claims in different ways - to the City Manager, to the Police Department, to the Police Citizens Review Board. Does this language cover all citizen complaints? Is a "claim" different than a "complaint"? Finally, although it is likely Iowa City could, in accordance with home rule power and authority grant subpoena power to the PCRB (see Iowa City Human Riclhts Commission vs. Roadway Express, Inc., 397 N.W. 2d 508, 510 (Iowa 1986), this conclusion does not answer the more complicated question of whether, because of constitutional, contractual, or statutory rights a witness such as a police officer could be compelled to answer to the PCRB. Proposed Amendments to the Home Rule Charter July 26, 2001 Page 5 The problem I see with this proposed amendment is not, with the exception of the ambiguities pointed out above, with the substance of the amendment, but rather, with the procedure being used to enact this legislation. In my opinion, this is not a charter amendment. Under 362.2(3) of the state code, "charter" "means the form of government selected by a city as provided in Chapter 372." Under Chapter 372.9 "a city to be governed by the home rule charter form shall adopt a home rule charter in which its form of government is set forth." A city is a municipal corporation. Iowa Code §362.2(4). The charter is "an act of incorporation"; "the instrument evidencing the act of a legislature, governor, court, or other authorized department or person, by which the corporation has been created." McQuillan, Municipal Corporations §9.02 (3d ed.) A charter "confers powers that did not exist before. Id. In addressing the distinction between a charter amendment and legislation the Maryland Court of Appeals explained: "Absent an intention to permit a contrary usage, a charter amendment within the context of Art. XI-A is necessarily limited in substance to amending the form or structure of government initially established by adoption of the charter. A charter amendment, therefore, differs in its fundamental character from a simple legislative enactment. Its content cannot transcend its limited office and be made to serve or function as a vehicle through which to adopt local legislation." Cheeks v Cedlair Corporation, 415 A. 2d 255,260 (Md. Ct. App. 1980) (holding, in part, that a proposal to create a new agency with authority over landlord tenant matters was legislative in character and not addressed to the form or structure of government in any fundamental sense, and therefore, was not a charter amendment.) Thus, the charter is a particular type of law which sets forth Iowa City's form of government. Article 7 of the charter allows legislation to be proposed, with some exceptions, by initiative and referendum. The initiative and referendum provisions specifically exclude charter amendments from those subjects to which the right of initiative and referendum extends. In my opinion the proposed PCRB provision relates not to Iowa City's "form of government", but rather, is legislation that, if proposed by petition, should be done so under the initiative and referendum procedures of the charter. Just as the Council would make changes to the PCRB by ordinance, the right of the electors to do so is under the initiative and referendum provisions of the charter, not by an amendment to the charter. D. PROPOSED AMENDMENT #3 ENTITLED "COMMUNITY POLICING". The first section of this proposed amendment entitled "Citation in Lieu of Arrest" provides that in accordance with state law Iowa City police officers "shall issue citations in lieu of arrest for non- violent misdemeanor offenses, unless there is a reasonable belief that a person will pose a danger to the community." State law permits the issuance of a citation in lieu of arrest for most offenses for which an accused person would be "eligible for bail." Iowa Code §805.1(1). Iowa Code §811.1 lists all non-bailable offenses. In addition to traffic and motor vehicle equipment violations this scheme permits the issuance of a citation in lieu of arrest for even some serious felonies. The proposed amendment dealin9 with citations in lieu of arrest is not as broad and applies to only "non-violent, misdemeanor offenses, unless there is a reasonable belief that a person will pose a danger to the community." In my opinion, this is legislation that Iowa City could enact. Proposed Amendments to the Home Rule Charter July 26, 2001 Page 6 Section 6.02 entitled "Police Should Be a Peacekeeping Force" states that the police should not engage in certain practices "without following a set of guidelines approved by the Police Citizens Review Board and the City Council." In addition, it provides that arrests of persons in possession of personal use amounts of madjuana should not be a priority of the Iowa City Police Department. Finally, it provides that persons subject to arrest warrants for non-violent misdemeanor offenses should be notified of the existence of the warrant and provided an opportunity to appear for booking unless there is evidence that the person will pose a danger to the community or risk of flight. In substance, such provisions are within Iowa City's home rule power and authority. Again, however, in my opinion this amendment deals not with Iowa City's form of government, but rather, is legislation which, if proposed by citizen petition, should be proposed under the initiative and referendum provisions of the City charter and not approached as a charter amendment. E. PROCEDURE. In addition to the substantive issues there are a number of procedural issues that may arise. First, while the petition being circulated asks that the amendments be submitted to the voters at the November election, Section 372.11 of the Iowa Code provides that if the petition is valid council must submit the proposed amendment to the voters at a "special City election". It doesn't say when this election must be held or that it must be held at the time of the regular election. While one can assume the election must be held within a reasonable time after submission of the petition, reasonableness will depend partly on when the petition is submitted and whether there are any challenges pursuant to Section 362.4 of the Iowa Code. The City Clerk must submit any ballot questions for the November election to the Commissioner of Elections no later than August 31st' There are a number of ways that the validity of the proposed charter amendments may be raised. They could be the subject of a declaratory judgment action or injunction action either before being submitted to the voters or after submission if passed, with the plaintiff being either the proponents or opponents of the amendments or the City Council itself. The issue of whether the proposed amendments conform to state code can only be finally determined by a court. I am, of course, available to answer any questions you may have. cc: Stephen J. Arkins, City Manager Marlan Karr, City Clerk Assistant City Attorneys Police Chief Winkelhake eleanor/mem/homerule.doc City of Iowa City IP3 MEMORANDUM DATE: Jul 2001 ~,~ / TO: Cit / FROM: Ikes, City Attorney / RE: to the Home Rule Charter I. INTRODUCTION The City Council has that I give my opinion on the of the proposed amendments to Iowa City's ;harter that are currently being, natures. I have seen several versions of le amendments. Attach from the website http://charteramendments.org, is a cop ~e proposed am~ on here. II. CONCLUSIONS A. It is my opinion retention elections for the City Manager and Police Chief is likely state statutory scheme for city government, which distinguishes between elected an and with which a Home Rule Charter must be consistent. In addition, Steve Atkins is still City Manger at the time of the first retention election is 2003, it is ~n that the charter amendment and the results of such an election would have no effect, ;ity's obligation under his employment contract, a provision of which requires 6 months pay upon termination. Finally, the language of the amendment lacks the clarity on like see in legislation, leaving a number of questions unanswered and makin.c difficult. B. It is my opinion that Amer Nos. 2 and 3 ntitled "Police Citizen's Review Board" and "Community Policing" ed to the "form of government", and therefore, are not charter amendments, but s for local legisl ion which if made by petition should be made pursuant to the tiative and Re~m set forth in Article VII of the Charter. section of this memo, most of wl* cannot be fully t i filing. III. ANALYSIS A. BACKGI IND '\~ \ In order to provide round and a framework for analysis, before addressing the specific amendments I will r, t statutes, City Charter provisions and legal principles. 1. Iowa Code, there are six forms of city government: or Mayor-Council with appointed Manager; 2) Commission; 3) Council- Manal 4) Council-Manager-Ward; 5) Home Rule Charter; and 6) Special Charter. Iowa City has a Home Rule Charter form of government. Under section 372.10 a Home Rule Proposed Amendments to the Home Rule Charter July 25, 2001 Page 2 Charter must contain provisions for "the powers and duty of the mayor and the council, con,~ with ~rovisions of the City Code." The "City Code" are those chapters of the dealing cities (Chapters 362, 364, 368, 372, 376, 380, 384, 388 and 392). See {)362.1 Iowa City's ~g Home Rule Charter essentially provides for a Council/City government variation on the at-large and ward forms of by three districts are created and three of the Council Mem must live in and are nomin; n districts, but all voters vote in both the district and at-lar races. 2. ~ Iowa Code Section 372.9(8)(d), the adoption charter "does not alter any right or liability City in effect at the time of the special at which the charter was adopted." 3. By constitution ~d statute, cities in Iowa have Rule" authority "to determine their local affairs and rnment," but only to the extent are "not inconsistent with the laws of the eral Assembly." See Section 38A of the Iowa Constitution and Iowa Code §364.1. .= Iowa Supreme Court on many occasions, opined on the bounds of Home Rule authority. 4. Under Section 372.11 a Hi ; Rule Charter may be amended by one of three methods, including the ~ing: "If a valid under the provisions of Section 362,4 is filed with the Council tn amenc the Council must submit the proposed amendment to the al City election, and the amendment becomes effective if approved by a majority Section 8.01 (c) of the City Charter tracks the state code provision. Unlike other contained in Chapter 372 (e.g., Section 372.13 regarding the calling of an election to fill a, ~ncil vacancy), Section 372.11 does not specify when the special election at which the amendment is submitted to the voters must be held. A regular city election is held or election of officers of the City; a special City election is one held for any other pul Code §39.3. A special election can, but need not, be held on the same day as a sched~ City election. Iowa Code Section 39.2. Under Section 362.4 of the Iowa Code, if a the City Clerk, it must include the signatures of the petitioners, a staten place and the date on which they signed the petition. The petition if signed by of the City equal in number to 10% of the persons who ' at the last preceding ar City election (the City Clerk tells me this is 785 (10% of 7, If the petition is valid on the City Clerk shall accept it for filing. If it lacks the Jired number of signatures, it be returned to the petitioner. Petitions which have accepted for filing are valid objections are filed with the City Clerk within working days after the petition is The objection process in Section 44.8 is to 'oilowed. Section 44.8 provides to be considered by the Mayor and Clerk and o~ cil chosen by the ballot. substance, to have °~rdinance submitted to the voters at an election. Under Icle VII, administration of law, policy or plan already enacted by Council." The procedure for initialrive different than the of the charter by petition. Amohg other things, petitions must be signed by "qualified" (registered) electors Proposed Amendments to the Home Rule Charter July 25, 2001 Page 3 equal in number to at least 25% of the number of persons who voted at the last ular City election but not less than 2,500. '~'r~ 6. The electorate has no greater power to legislate than does the IcQuillan, Municipal Corporations §16.49 (3d ed.) B. PROPOSED AMENDMENT REGARDING THE RETENTIOI~ FOR THE POLICE CHIEF. As noted Section 372.10 of the Iowa Code requires that and duties of the Mayor and Council be consistent with the provisions of the Code". Under other city government (Council-Manager-At-Large fo and Council-Manager-Ward form), e specifically provides that the Council "sh~ a manager'. Iowa Code §372.6 and §372.7 not directly to the Home Rule Charter form. Arguably, a Home charter could change the method appointment of the City Manager. Applicable to all forms overnment, however, is the on found at Section 372.13 entitled "The Council", which "appointment" of Manager "must be made on the basis of that individual's and not on the Similarly, under Section 400.13 of the provisions of State Code, the Chief of the Police Department is to be from the ChieFs Service eligible list." In cities under a Council-Manager form nt, the City M; makes the "appointment" of the Police Chief with the approval of the Cil and all other cities the "appointment" is made as provided by City Ordinance or Cit, While the Home Rule Charter could the method of appointment of either the City Manager or Police Chief, it is the retenti election aspect of the proposed amendment that is troubling. In Chapter 372, the words ' and "appointment" are used often and have very different meanings. In Black's Law the definition of the term "election" stresses a distinction between election and apl appointment referring to a "choice or selection by an individual", while election srs to a c oice or selection by electors". Black's Law Dictionary (5th ed. 1978). Signifi ltly, under the ommission form of government, the State Code specifically ~ uthorizes lhe :y Council to "ap int" the City treasurer or provide for that for popular suppo~. See ~sbv v Campbell, 480 S.E. 189, 191 (Ga 1997) (holding that a retention election c, an "election"); Sinawski v. vevas, 506 N.Y.S. 2d 396, 398 and "recall"). ~ An in depth aria Iowa Supreme Cou~'s home rule prec dent, as will be required if these makers are ated, is beyond the scope of this memo. I have, wever, during the course of my research r ~ed many of those cases again. While the words u ed by the Cou~ in home rule cases are , same, the results va~ and recent cases have divid the CouP. It is ve~ difficult. I bell e to predict the result in a pa~icular ~se. For example, in City of Clinton v. Sheridan, 5 NW.2d 690 (Iowa 1995), the Iowa Supreme Cou~ hel that initiative and ~Um revisions of Clinton's Home Rule ChaSer were not inconsistent ith State statutes that place limits on how the City Counci~ exercised its power. In the mor recent case of Goodall v Humboldt Coun~ 575 N.W. 2d 486 (Iowa 1998), in a decision wnen by Justice Ternus, o filed a dissenting opinion in City of Clinton, the Supreme Cou~ held t t ordinances Proposed Amendments to the Home Rule Charter July 25, 2001 Page 4 The current City Manager has an employment contract with the City. Pursuant to Iowa Code Section 372.9(8)(b) the adoption of the charter does not alter any right or liabili of the City in effect at the time the Charter is adopted. In my opinion this would apply to charter amendments. Steve Atkins's contract provides for six months severance terminated when he is willing and able to perform his duties except in limited ~stances involving :onviction of a crime involving personal gain. The proposed amendr calls for the first vote to be held in 2003. Assuming Steve Atkins is still ~r in 2003, it is my ion that the charter amendment will have no effect on the obligations under this ~y, language of the proposed amendment lacks the one would like to see in leg For example: Is a retention vote held every 4 without regard to when the police chief is initially appointed? The lan talks about the "appointment" being a retention vote every four years beginnir 2003 but seems to say there will be a retention every other regular election with lard to the date of appointment. Does a mane ~ is appointed in August 2007 election in November 2007? Can a manager dice chief who is not retained later re-appointed by Council? Can a manager or who is retained by Council? How many votes must the manager a be retained? C. PROPOSED ;)LICE CITIZEN'S REVIEW BOARD" This amendment seeks to charter entitled "Boards, Commissions, and Committees." In general, Article Council to establish boards, to appoint persons to those boards and remove ~ accordance with state law, and to establish rules for the boards. The proposed amendmen1 ~o create a "permanent" Police Citizens Review Board vesting it with certain minimum die the proposed language creates some ambiguities and difficulties in terms of inte~ mplementation, I do not believe such legislation, if enacted, would be will touch only briefly on my concerns about the lack of clarity in the language. First, the introductory phrase added to Se ion 5.01 "with the exception of the Police Citizens Review Board" is mi! I. Read literally ' says the Council could not establish the Police Citizens Review Bo and specify title, ties, length of terms, etc. Secondly, subparagraph A2 states the ~ Police Citizens Review oard must investigate citizen "claims of misconduct by sworn polic o :ers." As you know in yo dealings with the current ordinance, citizens make complaint or claims in different ways - the City Manager, to the Police Department, to the P ~ce Citizens Review Board. Does this language cover all citizen complaints? Is a "claim' different than a "complaint"? Finally, al ough it is likely Iowa City could, in accordance with hoe rule power and authority grant subpoen ower to the PCRB (see Iowa City Human Riclhts remission vs. Roadway Express, Inc., 397 N. .2d 508, 510 (Iowa 19~, this conclusion do s not answer the more complicated questio of whether, because of constitutional, con actual, or statutory rights a witness such as a police officer could be compelled to ans er to the PCRB. The problem Iee with this proposed amendment is not, with the exceptio of the ambiguities pointed ou a ve, with the substance of the amendment, but rather, with th procedure being 372." Und~ Ch; Lpter 372.9 "a city to be governed by the home rule charter form all adopt a hom~ ~art~ ,r in which its form of government is set forth." A city is a municipal rporation. Iowa i362 2(4). The charter is "an act of incorporation"; "the instrument evidenci the act "confers powers that did not exist before. Id. Proposed Amendments to the Home Rule Charter July 25, 2001 Page 5 problem I see with this proposed amendment is not, with the exception of the ambiguities out above, with the substance of the amendment, but rather, with the procedure being , enact this legislation. In my opinion, this is not a charter amendment. !.2(3) of "charter" "means the form of government selected by a city as provided 372." Chapter 372.9 "a city to be governed by the home rule charter form which its form of government is set forth." A city ' ' ' Iowa Code 2(4). The charter is "an act of incorporation"; "the the act of a leg court, or other authorized department or by which the corporation has created." McQuillan, Municipal Corporations §9.02 ed.) A charter "confers d not exist before. Id. In addressing between a charter amendment and legislati Maryland Court of Appeals explained: "Absent an intention contrary usage, a charter the context of Art. XI-A is limited in substance ~ g the form or structure of government ' established by adoprior the charter. A charter amendment, therefore, its fundamental from a legislative enactment. Its to serve or function as a vehicle th~ h which to local legislation." Cheeks v Cedlair Corporation, 415 A. App. 1980) (holding, in part, that a proposal to create a new agency with authorit tenant matters was legislative in character and not addressed to the form or government in any fundamental sense, and therefore, was not a charter amendment.) Thus, the charter is a particular type of law wh forth Iowa City's form of government. Article 7 of the charter allows legislation to be some exceptions, by initiative and referendum. The initiative and referendum exclude charter amendments from those subjects to which the right of in extends. In my opinion the proposed PCRB provision "form of ,rnment", but rather, is legislation that, if proposed by petition, should be dot so under' and referendum procedures of the charter. Just as the Council would changes to the f ordinance, the right of the electors to do so is under the and referendum of the charter, not by an amendment to the charter. D. PROPOSED AMEN ENTITLED "COMMUNITY The first section of this entitled "Citation in Lieu accordance with state law City police officers "shall issue citations in for non- violent misdemeanor offe~ unless there is a reasonable belief that ape will pose a danger to the State law permits the issuance of a citation in lieu of for most offenses for which an person would be "eligible for bail." Iowa Code .1(1). Iowa Code §811.1 lists all ~n-bailable offenses. In addition to traffic and motor violations this issuance of a citation in lieu of arrest for even serious felonies. The amendment dealing with citations in lieu of arrest is not as brad and app,ies to on,, person will poset . p i I i enact. Proposed Amendments to the Home Rule Charter uly 26, 2001 e6 Secb 6.02 entitled "Police Should Be a Peacekeeping Force" states that the police s uld not engage ' certain practices "without following a set of guidelines approved by the Pol' Citizens Review rd and the City Council." In addition, it provides that arrests of persons ' possession of personal e amounts of marijuana should not be a priority of the Iowa City P ~ce Department. Finally, it pro es that persons subject to arrest warrants for non-violent m' emeanor offenses should be notifi of the existence of the warrant and provided an op rtunity to appear for booking unless th is evidence that the person will pose a danger to e community or risk of flight. In substance, ch provisions are within Iowa City's home rule ower and authority. Again, however, in my opinion is amendment deals not with Iowa City's fo of government, but rather, is legislation which, if pr osed by citizen petition, should be pr osed under the initiative and ' charter and not approached a charter amendment. E, PROCEDURE. In addition to the substantive are a of >rocedural issues that may arise. First, while the petition being be submitted to the voters at the November election, Section Code if the petition is valid council must submit the proposed ~pecial City election". It doesn't say when this election must be held or the ust be held at the time of the regular election. While one can assume the election must be I- within a reasonable time after submission of the petition, reasonableness will depend 9n the petition is submitted and whether there are any challenges pursuant to Iowa Code. The City Clerk must submit any ballot questions for the November electi~Jn to the ~missioner of Elections no later than August 31st' / / There are a number of ways that I of the prol charter amendments may be raised. They could be the sub of a declarator or injunction action either before being the voters or after submi..)n if passed, with the plaintiff being either the of the ~ts or the City Council itself. The issue of whether amendments )state code can only be finally determined by a < I am, of course, questions you may have. cc: Stephen J. ly Manager Madan , Clerk Assistani !ys Police ( ule.doc TEXT OF THE AMENDMENTS Page 1 of 3 site Home Rule Charter Proposed index Amendments ,ereto.oto The Text of the Proposed Amendments to sign the pe,itions the Iowa City Home Rule Charter local news media coveraqe Home Rule Chaffer Proposed Amendment #l online Appointment of a City Manager with Periodic Voter Approval and Appointment of discussion a Chief of Police with Periodic Voter Approval forum tell us your story L the undersigned state that I am an eligible elector of Iowa City, Iowa, being at least or opinion about eighteen (18) years of age and a resident of lows City, Iowa. My signature indicates my the ICPD desire to have the following proposed amendment to the Home Rule Charter of Iowa the Fourth City placed on the November 6, 2001 ballot for voter approval or disapproval. Amendment That Article II, Subsection 2.08 (Appointments) of the Home Rule Charter of Iowa resources for City, Iowa be amended by the following language: law enforcement reform That the present paragraph "C" be replaced with the following language.' contact us The Council shall appoint a City Manager and review his or her performance on an annual basis. This appointment shall be subject to a retention vote by Iowa City electors every four years beginning in 2003 and thereafter in every other regular election for City Council, by the ballot wording "Shall the present City Manager, (name).__ be retained?" That paragraph "D" be replaced with the following language and that the present paragraph "D" become paragraph "E", etceteras: The Council shall appoint a Chief of Police and review his or her performance on an annual basis. This appointment shall be subject to a retention vote by Iowa City electors every four years beginning in 2003 and thereafter at every other regular election for City Council, by the ballot wording "Shall the present Chief of Police __.(name)__ be retained? Home Rule Charter Proposed Amendment #2 Police Citizens Review Board I, the undersigned, state that I am an eligible elector of Iowa City, Iowa, being at least eighteen (18) years of age and a resident of Iowa City, Iowa. My signature indicates my desire to have the following proposed amendment to the Home Rule Charter of Iowa City placed on the November 6, 2001 ballot for voter approval or disapproval. That Article V (Boards, Commissions and Committees), Subsection 5.01 (Establishment) of the Home Rule Charter of Iowa City, Iowa be amended by adding the following underlined words: iVith the exception of the Police Citizens Review Board, the Council may establish Boards in addition to those required by State law and shall specify the title, duties, length of term, qualifications of members and other appropriate matters. The Council http://charteramendments.org/text.htm 7/25/01 TEXT OF THE AMENDMENTS Page 2 of 3 may reduce or increase a Board's duties, transfer duties from one Board to another or dissolve any Board, except as otherwise provided by State law or this Charter. X. There shall be a permanent Police Citizens Review Board. which shall have vested in it the following minimum powers: 1. To hold at least one community forum each year for the purpose of hearing citizens' views on the policies, practices, and procedures of the Iowa City Police Department. and to make recommendations regarding such policies, practices, and procedures to the City Council. 2. To investigate citizen claims of misconduct by sworn police officers and to issue independent reports of its findings to the City Council; and 3. The authority to subpoena witnesses. Home Rule Charter Proposed Amendment #3 Community Policing I, the undersigned, state that I am an eligible elector of Iowa City, Iowa, being at least eighteen (18) years of age and a resident of Iowa City, Iowa. My signature indicates my desire to have the following proposed amendment to the Home Rule Charter of Iowa City placed on the November 6, 2001 ballot for voter approval or disapproval. That the Home Rule Charter of Iowa City, Iowa be amended by a new Article VI as worded below, keeping the present Article VI (Campaign Contributions and Expenditures) by making it Article VII, and accordingly changing the numbers of all subsequent Articles: ARTICLE. VI. COMMUNITY POLICING Section 6.01. Citation in lieu of arrest. In accordance with State law which permits police officers to issue a citation in lieu of arrest for certain offenses, including all simple possession of marijuana offenses, Iowa City police officers shall issue citations in lieu of arrest for non-violent, misdemeanor offenses, unless there is a reasonable belief that a person will pose a danger to the community. ~.02. Police should be a peacekeeping force. Through this Charter Amendment citizens affirm their belief that the Iowa City Police Department should be a peacekeeping force which undertakes Community Policing as determined by the citizens and that tax dollars allocated to the Department be directed toward such ends. The police should not engage in the following practices to investigate, apprehend, or arrest for misdemeanor, non-violent offenses: garbage searches; conducting knock and talks for the purpose of gaining entry to residents' homes; going as undercover agents into bars, restaurants, and other public places; and acting on anonymous tips without following a set of guidelines approved by the Police Citizens Review Board and the City Council. Arrests of persons in possession of personal use amounts of marijuana should not be a priority of the Iowa City Police Department. For all persons subject to arrest warrants for non-violent, misdemeanor offenses, the Iowa City Police shall notify the person of the existence of that warrant and provide an opportunity for that person to appear for booking unless there is evidence that the person http://charteramendments.org/text.htm 7/25/01 TEXT OF THE AMENDMENTS Page 3 of 3 will pose a danger to the community or a risk of flight. back to top home If you have questions or comments about this site, contact the webmaster home If you have questions or comments about this site, contact the webmaster http://charteramendments.org/text.htm 7/25/0 1 City of Iowa City MEMORANDUM TO: Mayor and City Council FROM: Marian K. Karr, City Clerk DATE: July 26, 2001 RE: Council Work Session, July 9, 2001, 6:35 p.m. in Emma J. Harvat Hall Council: Champion, Kanner, Lehman, O'Donnell, Pfab, Vanderhoef, Wilburn Staff: Arkins, Helling, Dilkes, Karr, Franklin, Mollenhauer, Davidson, Capt. Johnson Tapes: 01-64, Side 2; 01-68, Both Sides; 01-69, Side One (A complete transcription is available in the City Clerk's Office) ADDITIONS TO AGENDA Council agreed to add the following items to the July 10 agenda: · Consent Calendar - Class E Liquor and Class B Wine for Osco Drug at Towncrest · Item #17B - Resolution approving guaranty and short-term financing agreement between City and Terry Stamper and University of Iowa Credit Union regarding financing of the Peninsula project. PLANNING & ZONING ITEMS PCD Director Franklin provided information on the following items: A. Setting a public hearing for July 31 on a resolution approving the annexation of approximately 26.68 acres of property located south and east of Scott Boulevard and Rochester Avenue, and 6.25 acres of property located east of Scott Boulevard and south of Lower West Branch Road. (ANN99-00003) B. Setting a public hearing for July 31 on an ordinance to rezone approximately 38.24 acres from Low Density Single Family, RS-5, County Highway Commercial, CH, County Local Commercial, C1 and County Multi-Family, R3A to Community Commercial, CC-2 (10.99 acres), Medium Density Single Family, RS-8 (21 acres), and Low Density Single Family, RS-5 (6.25 acres) for property located east of Scott Boulevard and south of Rochester Avenue and Lower West Branch Road. (REZ99-00017) C. Setting a public hearing for July 31 on a resolution approving the annexation of approximately 95.2 acres of property located north of Court Street, south of Lower West Council Work Session 7-9-01 July 26, 2001 Page 2 Branch Road, and east of Hummingbird Lane / Scott Park Drive, and approximately 10 acres of property located south of Lower West Branch Road and east of Hummingbird Lane. (ANN01-00001) D. Setting a public hearing for July 31 on an ordinance to fezone approximately 105.2 acres of properly from, Suburban Residential, County RS, to Low Density Single Family, RS-5 (45.08 acres) and Medium Density Single Family, RS-8 (60.13 acres), for property located north of Court Street, south of Lower West Branch Road, and east of Hummingbird Lane. (REZ01-00004) E. Ordinance amending the Zoning Code, Section 14-6E-8 Central Business Zone, to allow dwellings on or below the ground floor of Historic Landmark Buildings by special exception. Historic Preservation Chairperson Michael Gunn and Planning and Zoning Chairperson Ann Bovbjerg present for discussion. Majority of Council expressed an interest in amending the ordinance to protect commercial buildings in the CB-10 zone. Council will decide at the formal meeting whether to continue the public hearing and schedule a joint meeting with P&Z; close the hearing, proceed with first consideration, and schedule a joint meeting with P&Z; or to close the hearing, amend the ordinance, and then schedule a joint meeting. F. Ordinance changing the zoning code by amending the Planned Development Housing Overlay, OPDH-8, plan for Arbor Hill, an 8.2 acre 17-unit residential development, located north of Washington Street on Arbor Hill Circle. (REZ01-00006) (Second Consideration) G. Ordinance changing the zoning designation from General Industrial (I-1) to Intensive Commercial (C1-1) for approximately 12.09 acres located on the south side of Highway 1. (REZ01-00002). (Pass and Adopt) H. Ordinance amending Title 14, Chapter 6, entitled "Zoning," Article E, entitled "Commercial and Business Zones," to allow municipally owned, mixed-use parking facilities in the Central Business Support Zone (CB-5) and the Central Business Zone (CB-10). (Pass and Adopt) I. Ordinance changing the zoning designation of approximately 0.83 acres from public (P) to Central Business (CB-10) located south of Iowa Avenue between Linn Street and Gilbert Street. (REZ01-00005) (Pass and Adopt) J. Ordinance vacating an undeveloped portion of WooIf Avenue from McLean Street south for a distance of 240 feet. (VAC97-00002) (Pass and Adopt) In response to Council Member Kanner, PCD Director Franklin will follow up with HIS on whether a fence is considered a structure that would not be permitted in the vacation documents. Council Work Session 7-9-01 July 26, 2001 Page 3 AGENDA ITEMS 1. (Item #17A - ACT Revenue Bonds) ACT Vice President of Finance Tom Goedken present for discussion. 2. (Item #12 - Sidewalk Caffi for One Twenty Six) City Clerk Karr stated this was the first request for an elevated structure on top o a sidewalk and the agreement would require removal of the structure from December through March of each year. Council Member Vanderhoef raised concerns regarding the 8-foot walkway requirement, and urged expanding the requirement to 10 feet. 3. (Consent Calendar #2b(9) - Police Citizens Review Board (PCRB) Minutes and Report on Complaint 01-01) Council Member Kanner requested a council work session be scheduled to review the complaint sustained by the PCRB in their report. The City Manager stated he had asked Police for a report on the item and would be reporting back to Council in the next few weeks. 4. (Consent Calendar #2d(1) - Setting public hearing on precinct and boundaries for voting districts) Council Member Kanner questioned the history of why the current boundaries were drawn, history of discrimination in terms of voting that might be affected, and questioned whether boundaries exclude certain people and benefit certain races. City Clerk Karr stated the procedure was mandated by State and Federal law after a census, and outlined the timelines and procedures necessary to adhere to the September 1 deadline. 5. (Consent Calendar #2d(2) - Resolution setting hearing on civil penalties for companies whose employees have been found guilt of selling cigarettes to minors) In response to Council Member Kanner, City Atty. Dilkes reviewed the procedure. Council Member Kanner requested a memo outlining the procedure be provided by the County Attorney. Staff will follow up. 6. (Consent Calendar - Changing parking meters in the 400 block of College Street from 30 to 2 hour) Asst. PCD Director Davidson present for discussion. In response to Council Member Kanner, staff will prepare a memo on the present use of the Wilson building. 7. (Item #9 - PCRB Ordinance Amendment) In response to Council Member Kanner, majority of Council agreed to leave language in the ordinance that provides PCRB to request City Council hold informational hearings. 8. (Item #11 - Resolution accepting "Dorothy" for rotating Iowa Sculptor's Showcase) In response to Council Member Kanner, PCD Director Franklin stated that the piece was acquired with the NEH grant, and the piece would rotate to other sites throughout the City. 9. (Item #15 - Resolution of intent to convey 1605 Dickinson Lane) In response to Council Member Kanner, the City Manager stated the term "low income" mentioned in the resolution refers to guidelines established annually by the federal government. PCD Director Franklin present for discussion. Council Work Session 7-9-01 July 26, 2001 Page 4 COUNCIL APPOINTMENTS SEATS Paratransit Advisory Committee - Mike O'Donnell TRAFFIC CALMING: EVALUATION OF NORTHSIDE ALLEY (IP1 of 7/5 Info Packet) Asst. PCD Director Davidson stated four changes in two paragraphs of his memo. Second paragraph, third sentence should read "The traffic count at the east end of the alley..."; and fourth sentence should read "The counter at the west end of the alley recorded...". And the fifth paragraph, second sentence should read "Over the three days surveyed, the traffic counter at the east end of the alley...."; and third sentence should read "The traffic counter at the west end of the alley...'. Majority agreed to survey adjacent properties (rental and single family) regarding a barricade, including the option of a 12-month or three-season barricade STAFF ACTION: Prepare and distribute survey. (Davidson) TRAFFIC CALMING: REEVALUATION OF RIDGEWOOD DRIVE ALLEY SPEED HUMPS (IP2 of 7/5 Info Packet) Asst. PCD Director Davidson present for discussion. Majority of Council agreed to retain the speed humps. Davidson reported that a local company would be fabricating the Lexington Avenue barricade which would be equipped with a Knox padlock which would allow for fire department accessibility, and a break away feature for emergency vehicles. STAFF ACTION: Replace speed humps when they begin to deteriorate. (Davidson) LONG-TERM DEER MANAGEMENT PLAN (IP3 of 7/5 Info Packet) Adm. Asst. Mollenhauer present for discussion. Majority of Council affirmed the long-term plan. STAFF ACTION: Task Force to work through the summer to fulfill goals identified. (Mollenhauer) PA'I'V FACILITY FUNDING REQUEST (Consent Calendar #2f(12)) Asst. City Manager Helling distributed copies of the recommendation of the Iowa City Telecommunications Commission concerning the request for $125,000 for the City and PATV to assume co-ownership of a facility. PA'I'V representative Rene Paine present for discussion. Majority of Council requested more financial information, estimates from the contractors, results of an inspection, agreement with tenant(s) and financial analysis prepared by PATV before a decision is made. STAFF ACTION: Work with PATV and Commission to prepare information per Council direction. (Helling) Council Work Session 7-9-01 July 26, 2001 Page 5 COUNCIL TIME 1. Council Members O'Donnell and Wilburn acknowledged the fireworks at City Park on July 7th and the large crowd attending. 2. Council Member Kanner stated he would be doing his annual tour of city departments and facilities and invited people to join him. 3. Council Member Vanderhoef requested that a Council tour be scheduled in the fall. The City Manager suggested Council candidates be invited. Staff will follow up. 4. Council Member Pfab stated he had viewed the new crosswalk over at Weber School and commented there were some happy neighbors over there. 5. Council Member Vanderhoef requested that a work session on storm water utility charges be scheduled before budget sessions in January. The City Manager stated staff was working on administrative, legal and technical questions and would provide information in conjunction with the scheduled fall bus tour. 6. Mayor Lehman suggested that whenever a non-controversial item is requested for expedited action that a special formal meeting be scheduled before a scheduled work session for the purpose of one reading. Another reading could be scheduled at the forma meeting the next evening. A majority of Council agreed to the procedure. Council Member Kanner suggested a resolution be prepared formalizing Council policy to allow anyone to come and speak on any issue on the agenda. A majority did not express interest in pursing the resolution suggested by Council Member Kanner. Meeting adjourned 9:15 PM. clerldmemNvorksess7-9-01 .doc 07-26-01 IOWA CITY WATER DIVISION ~ MEMORANDUM ~ Date: July 20, 2001 From: Ed Moreno To: Chuck Schmadeke Re: Iowa City Drinking Water Usage Water Production Due to the recent hot and dry weather we have seen an increase in our high service pumpage. On 7/15/01 we pumped 7.387 million gallons into the distribution system. Our average pumpage for the year is approximately 6.0 million gallons per day (MGD), about a 23% increase. The capacity of the existing water plant is approximately 10.0 - 10.5 MGD. This includes treatment of water from the Iowa River, a Jordan and two Silurian wells. The Iowa River is not experiencing drought conditions and the source is plentiful. Currently we are using the Jordan well to blend with the river water due to elevated nitrate levels in the river. We recently (7/18/01) shut off the Silurian wells from the blend. Silurian aquifer levels have been dipping due to usage during this hot and dry period. USGS level data has recently shown a downward pumping level trend and some record low levels. We have been measuring Silurian well pumping levels around the new water plant site over the past several years. Summer Outlook We are comfortably meeting our demands at this time and do not foresee difficulties, assuming demands do not increase significantly. The Iowa City water system has about 7 million gallons of storage capacity to assist with intermittent demands. I have attached a graph that shows some historical data including monthly average and maximum demands from past years to the present. As you are aware, the Iowa City water system has interconnections with the University of Iowa and Coralville. We have informed the Coralville Water Department that we would be able to assist them if their system demands continued to be a problem. The University of Iowa Water Plant and the Water Division have always assisted each other when necessary. If you would like any additional information please let me know. \XAGUA\emoreno$\summer 200I water usage DOC IOWA CITY WATER DIVISION OPERATIONS HISTORICAL PUMPAGE SUMMARY 10.000 9.637 9.442 9.228 9.000 8.133 8.124 7.98 8.000 ~ ~ 7.7987.8497.918 sept. ., 7.559 __ 1993 ~ I ~ 6.000 ~ ; ~..~...~ ......~...~ .............................................................................................................. Plntflo.xlshistorical pumpage summary " MEMORANDUM TO: Steve Atkins, City Manager FROM: R.J. Winkelhake, Chief of Police ~/Iv' RE: TRAFFIC DATA COLLECTION DATE: July 25, 2001 The Police Department activated a new collection system on the vehicle's laptops last week. The new program collects all of the data the paper system did in the past without the paper. The data collected by the new program incorporates the suggestions from the U. S. Department of Justice and research conducted by the Police Department concerning traffic stops, citations, searches, etc. We now have a contract signed with the University of Louisville to review data which the Iowa City Police Department collects between April 2001 and December 2001. The final report will include both a summary of statistics and a multivariate analysis of the data. Members of the team from the University of Louisville will deliver a final report and make a formal presentation at a mutually convenient time, but not later than June 30, 2002. If you have questions, please contact me. ~,c~ i07-26~ Marian Karr IP7 ,. From: RhysBJones@aol .com Sent: Saturday, July 07, 2001 5:27 PM To: Jeff-Davidson@iowa-city.org; council@iowa-city.org Subject: Re: Lexington Barrier Jeff: Our Lexington Avenue ne hbors who I have spoken with still have great concern about the design f the barrier. A six foot high fence does not seem nearly high enough for the traffic coming from the south. We are e s, ' ' . e restrictions on design have not the project. / Vehicles will turn off River St. Lexington and roar throul the first dip and hit the crest of the hill at ,-50-60 mph. They will the barrier with 200 feet to go but in the ~ to the north of our y, have only seconds to react. It will only ira few feet hi< up the crest and may even look as if it was on second hill. think it needs to be at least 10 feet high, possibly 12 t. We, the 37 residents who signed the petition stree closure (and our 22 children), do not want a design flaw to negate hborhood action efforts the past two years. We do not want taken out on the first night. Last Saturday evening we counted 14 cars ,eding the dips between 2:00AM and 2:30AM. These drinking drivers are at Eeat risk to ignore or fail to see any sign or barrier. We feel that .lly there should be additional "construction" like warnings such a~ 'ses with blinking lights placed strategically along the street ong the permanent signage. Blinking lights on the fence are a one There is also concern that the three foot space on either side of e~ce might allow motorcyclists to race through the barrier. We hope you will take these requests un r consideration. want this seasonal closure to work. We are once again invaded by the speeders and need your help for the safety of he citizens. Rhys Jones Chair, Lexington Avenue Action Co ittee 708 McLean St. 351-2144 '\ \ I07-26-01 ] Marian Karr IP8 From: Carol DeProsse [cdeprosse@earthlink. net] Sent: Monday, July 23, 2001 3:01 PM To: cdeprosse@earthlink. net Cc: Connie_Champion@iowa-city.org; Ernie_Lehrnan@iowa-city.org; Ross_Wiiburn@iowa- city.org; Dee_Vanderhoef@iowa-city.org; ipfab@avalon.net; Steve_Atkins@iowa-city.org; jpwhite@cojohnson.ia.us; cthompso@co.johnson.ia.us; mlehman@co.johnson.ia.us; sstutsma@cojohnson.ia.us; pharney@co.johnson.ia.us; tneuzil@cojohnson.ia.us; tjneuzil@msn.com; carolt@inav.net; Jim Fausett; Harry Herwig; John Weihe; Diana Lundell; Dave Jacoby; Jean Schnake; mary_mascher@legis.state.ia.us; vicki_lensing@legis.state.ia.us; joe_bolkcom@legis.state.ia.us; barry_brauns@legis.state.iaus; ro_foege@legis.state.ia.us; richard_myers@legis.stateia.us Subject: [jcnews] Good article by Jeff Cox The Prairie Progressive Summer 2001 Professionalism and Democracy in Iowa City Schools Jeff Cox Members of the general public are by now aware of the corruption of our democracy by big money funneled through the campaign finance system. Whatever is done eventually about campaign finance laws, it is important to keep in mind that there are no easy solutions and that some of the most plausible solutions pose real threats to civil liberties. Furthermore, the focus on big money in politics should not divert our attention from other threats to democratic and accountable government, particularly when those threats are less obvious. For instance, as government continues to grow in size and complexity, we place a greater and greater reliance on unelected administrators to make our decisions for us. Some deference to professionalism is unavoidable in a complex society, but professionalism can pose threats to democratic control and public accountability that are just as menacing as the well-documented dangers of big money. The hidden dangers that lurk in excessive respect for professionalism can be seen by looking at some recent controversies surrounding the Iowa City Community School District. Iowa City's former school superintendent, Barbara Grohe, was named national "Superintendent of the Year", and promoted to a school district near Seattle. Although not very popular in Iowa City, Grohe was popular with her fellow administrators. It appears that the way to become Superintendent of the Year is to do the best job possible of doing what all other administrators are doing around the nation. Grohe allowed powerful outside interests access to the classroom, undermining the integrity of teaching by introducing political propaganda and corporate commercials to a captive audience of students. Armed police officers from local police departments, with no college degrees and no training as teachers, presented blatant propaganda in defense of the war on drugs through the DARE program. Junior high school students were subjected to compulsory television commercials on the daily Channel 1 program. The school district also became promoters of junk food through exclusive soft drink contracts. As outside corporate and political interests were allowed into the schools, insiders became treated as outsiders. Grohe treated the teacher's union as an alien force, blamed them for whatever budget shortfalls the district faced, and left classroom teachers alienated and demoralized. In this as in 1 all other matters, Grohe was simply acting like administrators act almost everywhere, undermining the sense of collegiality and respect that is necessary for teachers to act as true educators, i.e. concentrate on classroom teaching. Grohe also took steps to insulate her actions from public scrutiny and control. The most obvious, perhaps, was her proposal to the school board to eliminate any appeal to the school board in student disciplinary matters. While introducing draconian new "zero tolerance" policies to victimize students who make mistakes, she made the superintendent the highest arbiter of any appeal from these new rules. A sheep-like school board went along without question with this elimination of public accountability and democratic control. The actions of the Superintendent of the Year showed little deference to the values of the local community, one that is suspicious of the war on drugs, suspicious of armed classroom personnel, suspicious of the spread of commercialism, suspicious of junk food, suspicious of rigid "zero tolerance" disciplinary policies, and respectful of the rights of classroom teachers. None of this matters when an administrator conforms to national standards of administrative performance rather than the values of the local community. Our new school superintend, Lane Plugge, continues to act behind closed doors, evading public scrutiny. He recently demanded the resignation of the Principal of City High School for reasons that have never been explained to the public. Hiding behind the sacred phrase, "personnel matters", he has in effect gagged the School Board, preventing them from speaking to the public on a matter of great public concern and leaving the public bewildered and suspicious. The appointment of a new Principal, an extremely important member of the community, was conducted along the same principles of rewarding extensive administrative experience rather than institutional loyalty or a strong sense of community. One of the candidates was Jack Kennedy, former journalism teacher at City High who created one of the best high school newspapers in the nation. Here is an example of a real educator, a teacher who dedicates his life to building up local institutions that we can admire. Kennedy also grasped one of the central features of genuine professionalism in journalism, respect for freedom of the press. He understands that freedom of the press is not merely a right granted to us in the constitution, but an essential element of excellence in journalism, and he taught students the importance of that freedom in the best possible way, by example. Professionalism in the search for a new principal, however, is defined in a different way in the world of school administrators. Experience can only be gained at a number of high schools, not merely at one. Having only been a "temporary co-principal" at City High, Jack Kennedy lacked the necessary "experience" to be a principal. The new City High principal may well be the best qualified person for the job in every way. The issue here is not a particular decision, but the principles used when reaching decisions. When professionalism is defined in a bureaucratic way that rewards conformism, it undermines creativity, imposes bland uniform standards, devalues institutional loyalty, and weakens respect for the values of the local community. The forces of social and political conservatism often portray themselves as defenders of professionalism. Keep that in mind this fall, as Iowa City faces a new set of debates over the direction of the police department and the respective roles of the chief of police and city manager. For a free copy of the most recent Prairie Progressive, send an e-mail request to: dleshtz@ia.net Subscriptions are $10/year to Box 1945, Iowa City IA 52244 [Non-text portions of this message have been removed] To unsubscribe from this group, send an email to: jcnews-unsubscribe@yahoogroups.com Your use of Yahoo! Groups is subject to http://docs.yahoo.com/info/ter~s/ Dale Helling Subject: FW: Purchase of Building Date: July 30, 2001 To: City Council/Iowa City Telecommunications Co ission e t A 1. The City will provide partial funding for the project in the amount of $125,000.00. 2. The City will hold a lien on the property in the amount of $125,000.00 which will place the City in a second position behind the mortgage lending institution (Hills Bank). This lien will exist unless and until either the provision of services by PATV terminates as provided in #6 below, or the lien is in some fashion released by a mutually negotiated agreement between the City and PATV in the futu re. 3. PATV shall lease space in this facility at a market rate as determined by a competent source and agreed upon by the City, and shall enter into a minimum 5 year lease with its tenant(s). 4. PATV shall continually occupy this facility in whole or in part for the purpose of providing the services for which it has entered into its contract with the City. 5. Property must appraise out at purchase price or higher, and if possible, shall include in the appraisal a valuation of alterations to be made to the building. City will take a security interest in PATV equipment if the $125,000.00 is not otherwise fully collateralized. 6. Notwithstanding any provisions in PATV"S Articles of Incorporation or By- laws, and as a condition for the City providing $125,000 to PATV to assist PATV in purchasing property for PATV facilities, should any of the following occur, PATV agrees that PATV's assets, including any real estate and equipment, shall be conveyed by PATV to an organization or entity which the City may designate, and which may include the City, to provide public access/community programming services and offerings. a. Termination for any reason of the agreement between the City and PATV for the provision of public access/community programming services to the community, including termination for failure to perform as provided in that agreement. b. Dissolution of PATV as a private, non-profit corporation under the laws of Iowa. c. Failure by PATV to meet its obligations to repay its mortgage loan for the acquisition of this property. 7. Prior to any disbursement of funds, PATV shall provide the City with a detailed construction plan and specifications to be submitted to the City's Housing and Inspection Dept. for permit approval, for the alterations to be made to the building. All expenditures for alterations to the building will be consistent with said construction plan. Prior to any disbursement for payment of alteration costs, PATV shall submit to the City a statement of charges for materials and services, which shall include copies of the actual billing statements received by PATV from material suppliers, contractors, and/or other service providers. The City shall promptly review statements for eligibility for payment, and upon approval, shall promptly issue a negotiable draft jointly payable to PATV and the eligible provider. The above notwithstanding, PATV shall bear sole responsibility for any and all costs associated with the purchase and alteration/repair of this building.