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HomeMy WebLinkAbout2011.0217.TCRM.Minutesz:\council packets\2011\r3-3-11\110217m.docx Page 1 of 22 TOWN OF FOUNTAIN HILLS MINUTES OF THE REGULAR SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL February 17, 2011 (Items were discussed out of order but for purposes of clarity will be remain as listed on the agenda.) * CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Schlum called the meeting to order at 6:30 p.m. in the Town Hall Council Chambers. * INVOCATION – Vice Mayor Dennis Contino * ROLL CALL – Present for roll call were the following members of the Town Council: Mayor Schlum, Councilmember Dickey, Councilmember Hansen, Councilmember Brown. Councilmember Elkie, Vice Mayor Contino and Councilmember Leger. Town Manager Rick Davis, Town Attorney Andrew McGuire and Town Clerk Bev Bender were also present. * MAYOR’S REPORT i) Mayor Schlum will present the "State of the Town Address." Mayor Schlum presented the State of the Town Address and highlighted a brief PowerPoint presentation (Copy on file in the office of the Town Clerk). The Mayor discussed the Town's financial makeup; successes/highlights; challenges/opportunities; the fact that the Town is moving forward together; Red Shirt Fridays (VFW, American Legion, AmVets -- a thank you and tribute to our troops; plummeting general fund revenues; decreases in residential permit activity; the decreasing number of Town staff; Fountain Hills property taxes; general fund expenditures (where money goes -- Fire, EMT services, ambulance, Sheriff's Office, community services, administration, development services, Council and the Court). He discussed the Town’s General Fund revenues (where money comes from -- local sales tax, State income tax, licenses, fines, miscellaneous and vehicle licenses); budget challenges (highlighted successes and challenges); Town employee innovative ideas that save the Town time and money; the saving of the life of a Fountain Hills resident and everyone involved in that heroic act; Town partnerships, organizations and events; access to the Preserve, the Sister Cities convention; the importance of business success and shopping locally; the Downtown Vision (collaboration and implementation); volunteer services (over 700 volunteers in the community, both young and old); the Town's public art program and those who make that happen; the Greening of Downtown (partners and volunteers); the Easter Eggstravaganza sponsored by the Goyenas; and the importance of moving forward together. Mayor Schlum thanked everyone for their on-going support and asked God to continue to bless Fountain Hills, Arizona, the United States of America, and stated that Fountain Hills is "The Greatest Town in the World." Mayor Schlum declared a brief recess to allow those who did not wish to stay for the remainder of the meeting to leave and thanked everyone for their attendance this evening. * SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS i) Update from Jerry Butler, Chair of the Downtown Greening Committee, on the next propose d Phase III improvements to Fountain Park. Jerry Butler, Chair of the Downtown Greening Committee, addressed the Council relative to the next proposed Phase III improvements to Fountain Park. (Copy of the presentation on file in the office of the Town Clerk.) He said that the Vision Plan is not sitting on a desk --it is very much active and "growing green in Fountain Park." He provided a brief review of events/activities leading up to this point and advised that Phase III will z:\council packets\2011\r3-3-11\110217m.docx Page 2 of 22 begin this Spring and they will plant 36 trees in two different locations and another island cleanup will take place. He provided more details about the proposed tree planting areas and referred to slides showing the actual locations, benches, size of the trees and types. He noted that the dam is a "no tree zone" according to Water Resources and as they move towards Panorama, they run into a sanitary sewer easement, which is also a "no plant zone." He referred to slides that showed a number of the many volunteers in Town who have contributed time and effort to this project and thanked all of them for their hard work and community spirit. He reported that on March 12th another fund raising event will take place for the Greening of Downtown and encouraged attendance at this event. Mr. Butler indicated his willingness to respond to any questions from the Council. Mayor Schlum thanked Mr. Butler for his presentation and commended him and the members of the Committee and all of the volunteers who are working on this important project. Councilmember Dickey said that she had the opportunity to speak to Mr. Butler earlier about the Alliance for Community Trees and noted that they have some funding opportunities, which she has printed out. She added that the Alliance also has a website that shows the dates for the various applications and added that it might be worth taking a look at. Mr. Butler indicated his intention to pursue that information and thanked Councilmember Dickey for the information. Councilmember Hansen stated that when they were doing Phase II there were concerns expressed by a few of the residents on El Lago and that Committee members and staff had met with those individuals. She asked if their concerns had been addressed regarding future placement of trees along El Lago. Mr. Butler advised that they did listen to their concerns and made some adjustments to the trees and stated that now that they are moving into Phase III, they are trying not to repeat themselves in the areas they will move into next. He said that they took into consideration all of the homes around Panorama as they plan for this next phase. He added that rather than planting a huge grove of trees as originally planned, they have resorted to planting trees that are closer along the sidewalk itself to provide shade for those who walk along the sidewalk and will not interfere with the views of the people who live there. Mayor Schlum thanked Councilmember Hansen for bringing this up and noted that this is one of the few areas where their presence is quite close to the park and could impact views. He also thanked Mr. Butler, the members of the Committee and staff for working with the residents to resolve concerns. Mr. Butler reported that at the beginning of last year the Committee and volunteers had raised about $800 and at the beginning of this year, they have raised $80,000 so they are doing quite well. He noted that they are still not at their goal but given all of the other financial problems that were mentioned by the Mayor, they are doing very well. CALL TO THE PUBLIC None. CONSENT AGENDA AGENDA ITEM #1 – CONSIDERATION OF APPROVING THE TOWN COUNCIL MEETING MINUTES FROM DECEMBER 14, 2010 (W/S) AND FEBRUARY 3, 2011. AGENDA ITEM #2 – CONSIDERATION OF APPROVING A LIQUOR LICENSE APPLICATION SUBMITTED BY OWNER/AGENT CHRISTINA CONTANDINA KARP, DBA AS "JIMMY'S," LOCATED AT 16758 E. GLENBROOK BLVD., FOUNTAIN HILLS, AZ. THIS IS FOR A SERIES 12 LICENSE (RESTAURANT). z:\council packets\2011\r3-3-11\110217m.docx Page 3 of 22 AGENDA ITEM #3 –CONSIDERATION OF A SPECIAL EVENT LIQUOR LICENSE APPLICATION SUBMITTED BY ROBERT D. SCHMITZ REPRESENTING THE AMERICAN LEGION POST 58, FOR THE PURPOSE OF A FUND RAISER LOCATED AT 16837 E. PARKVIEW, FOUNTAIN HILLS, AZ, SCHEDULED TO BE HELD ON FRIDAY, SATURDAY AND SUNDAY, FEBRUARY 25-27, 2011 FROM 9:00 A.M. TO 10:00 P.M. AGENDA ITEM #4 - CONSIDERATION OF A SPECIAL EVENT LIQUOR LICENSE APPLICATION SUBMITTED BY ROBERT D. SCHMITZ REPRESENTING THE AMERICAN LEGION POST 58, FOR THE PURPOSE OF A FUND RAISER AT 16837 E. PARKVIEW, FOUNTAIN HILLS, AZ, SCHEDULED TO BE HELD ON SATURDAY, MARCH 26, 2011, FROM 9:00 A.M. TO 11:59 P.M. AGENDA ITEM #5 - CONSIDERATION OF RESOLUTION 2011-09, AUTHORIZING THE SUBMISSION OF PROJECTS FOR CONSIDERATION IN ARIZONA'S 2012 GOVERNOR'S OFFICE OF HIGHWAY SAFETY PLAN (PURCHASING EXTRICATION EQUIPMENT IN THE AMOUNT OF $38,000). Councilmember Elkie MOVED to approve the Consent Agenda as listed (Items #1 - #5) and Councilmember Dickey SECONDED the motion. A roll call vote was taken with the following results: Councilmember Dickey Aye Mayor Schlum Aye Councilmember Leger Aye Councilmember Hansen Aye Vice Mayor Contino Aye Councilmember Brown Aye Councilmember Elkie Aye The motion CARRIED UNANIMOUSLY (7-0). REGULAR AGENDA AGENDA ITEM #6 –CONSIDERATION OF A SPECIAL EVENT APPLICATION FOR THE GREAT FAIR SPONSORED BY THE FOUNTAIN HILLS CHAMBER OF COMMERCE TO BE HELD FEBRUARY 25-27, 2011, AND WILL REQUIRE CLOSURE OF PARTS OF AVENUE OF THE FOUNTAINS, PARKVIEW AVENUE, VERDE RIVER DRIVE AND SAGUARO BOULEVARD. The Mayor advised that Recreation Supervisor Bryan Hughes will present one report on Items 6 through 11 related to The Great Fair. Mr. Hughes addressed the Council and noted that Items 6 through 11 are related to two of the larger events that happen in Town in the Spring -- the Fountain Hills Chamber of Commerce's Great Fair and the Thunderbird Artists' Fine Art & Wine Affaire. He reported that the Great Fair is in its 32nd year and the Fine Art & Wine Affaire is in its 7th year here in Town. He noted that the Great Fair will require closure of parts of Avenue of the Fountains, Parkview Avenue, Verde River Drive and Saguaro Boulevard over the three days and the Fine Art & Wine Affaire will require closure of parts of Avenue of the Fountains for three days. He noted that both events have Special Event Liquor License applications associated with them and the Fine Art & Wine Affaire has a Wine Festival/Wine Fair license application. He added that staff anticipates a few more licenses coming before the Council at a later time. He said that staff is very excited about these important events that bring a lot of people into Town and they have reviewed their applications and recommended approval. He indicated his willingness to respond to questions from the Council. Mayor Schlum thanked Mr. Hughes for his presentation. z:\council packets\2011\r3-3-11\110217m.docx Page 4 of 22 Councilmember Hansen said that it looks as though Mr. Hughes is making a lot of good headway on the construction that is taking place and asked for an update on El Lago. Mr. Hughes advised that he does not have an update on that but it is his understanding that the agreement states that it must be cleared at least during the event so it shouldn't impact the event. Councilmember Hansen MOVED to approve the Special Event application for The Great Fair, sponsored by the Fountain Hills Chamber of Commerce and Councilmember Brown SECONDED the motion. Town Clerk Bev Bender advised that there were no citizens wishing to speak on this agenda item. The motion CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #7 - CONSIDERATION OF A SPECIAL EVENT LIQUOR LICENSE APPLICATION SUBMITTED BY GISELA H. NAVONE (AMERICAN LEGION AUXILIARY FOUNTAIN HILLS UNIT 58) FOR THE PURPOSE OF A FUNDRAISER, LOCATED AT AVENUE OF THE FOUNTAINS AND LA MONTANA BOULEVARD, FOUNTAIN HILLS, AZ, SCHEDULED TO BE HELD ON FEBRUARY 25-27, 2011, WHICH IS PART OF THE GREAT FAIR. There were no citizens wishing to speak on this agenda item. Councilmember Hansen MOVED to approve the Special Event Liquor License application submitted by the American Legion Auxiliary Fountain Hills Unit 58 and Councilmember Brown SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #8 – CONSIDERATION OF A SPECIAL EVENT LIQUOR LICENSE APPLICATION SUBMITTED BY TAIT DANIEL ELKIE (VETERANS OF FOREIGN WAR POST 7507) FOR THE PURPOSE OF A FUNDRAISER, LOCATED ON SAGUARO BOULEVARD NEAR AVENUE OF THE FOUNTAINS, FOUNTAIN HILLS, AZ, SCHEDULED TO BE HELD FEBRUARY 25-27, 2011, WHICH IS PART OF THE GREAT FAIR. There were no citizens wishing to speak on this agenda item. Councilmember Elkie declared a potential conflict of interest and refrained from discussi on and voting on this item. Councilmember Hansen MOVED to approve the Special Event Liquor License application for the Veterans of Foreign War Post 7507 and Councilmember Brown SECONDED the motion, which CARRIED UNANIMOUSLY by those voting (6-0), with Councilmember Elkie abstaining. AGENDA ITEM #9 – CONSIDERATION OF A SPECIAL EVENT APPLICATION FOR THE 7TH ANNUAL FOUNTAIN HILLS FINE ART & WINE AFFAIRE SPONSORED BY THE THUNDERBIRD ARTISTS TO BE HELD MARCH 18-20, 2011, AND WILL REQUIRE CLOSURE OF PARTS OF AVENUE OF THE FOUNTAINS. There were no citizens wishing to speak on this agenda item. Councilmember Brown MOVED to approve the Special Event Application for the 7th Annual Fountain Hills Fine Art & Wine Affaire sponsored by the Thunderbird Artists and Councilmember Hansen SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #10 – CONSIDERATION OF A WINE FESTIVAL LICENSE/WINE FAIR LICENSE APPLICATION SUBMITTED BY JOHN M. MCLOUGHLIN (BITTER CREEK WINERY) FOR THE 7TH ANNUAL FOUNTAIN HILLS FINE ART & WINE AFFAIRE TO BE HELD MARCH 18-20, 2011. z:\council packets\2011\r3-3-11\110217m.docx Page 5 of 22 There were no citizens wishing to speak on this agenda item. Councilmember Hansen MOVED to approve the Wine Festival License/Wine Fair License application submitted by Bitter Creek Winery and Councilmember Brown SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #11 – CONSIDERERATION OF A SPECIAL EVENT LIQUOR LICENSE APPLICATION SUBMITTED BY ROBERT HARRISON BAILEY (SUNSET KIWANIS CLUB OF FOUNTAIN HILLS) FOR THE PURPOSE OF A FUNDRAISER THAT IS SCHEDULED TO BE HELD MARCH 18-20, 2011, TO BE LOCATED ON AVENUE OF THE FOUNTAINS, WHICH IS PART OF THE 7TH ANNUAL FOUNTAIN HILLS FINE ART & WINE AFFAIRE. There were no citizens wishing to speak on this agenda item. Councilmember Elkie declared a potential conflict of interest on this agenda item and refrained from discussion and voting on this item. Councilmember Hansen MOVED to approve the Special Event Liquor License application for the Sunset Kiwanis Club of Fountain Hills and Councilmember Brown SECONDED the motion, which CARRIED UNANIMOUSLY by those voting (6-0), with Councilmember Elkie abstaining. AGENDA ITEM #12 – CONSIDERATION OF APPOINTING FOUR (4) CITIZENS TO SERVE ON THE BOARD OF ADJUSTMENT WITH ONE (1) SEAT APPOINTED FOR A ONE (1) YEAR TERM BEGINNING FEBRUARY 17, 2011 AND ENDING JANUARY 31, 2012; AND THREE (3) TWO (2) YEAR TERMS BEGINNING FEBRUARY 17, 2011 AND ENDING JANUARY 31, 2013. Mayor Schlum MOVED to approve Dr. Jeanie Gorrell for the one (1) year term on the Board of Adjustment and to appoint John Cofax, Mike Archambault and Richard Gohl to serve two (2) year terms subject to the terms listed above and Councilmember Brown SECONDED the motion. There were no citizens wishing to speak on this agenda item. Councilmember Elkie advised that there was another name submitted to the Mayor for recommendation for appointment and he believes that she is more qualified. He stated that he had sat on the Committee with Councilmembers Brown and Dickey and the recommendation was for a very highly qualified individual who had served as Chair on the Board of Adjustment for the City of Scottsdale and has many years of experience , Carol Perica. He added that the Committee's recommendation was for her (who they believe to be more qualified), Mr. Cofax, and Mr. Archambault and Mr. Gohl. Councilmember Elkie MOVED to amend the motion to appoint Carol Perica, John Cofax, Mike Archambault and Richard Gohl as members of the Board of Adjustment because he believes Ms. Perica is the more qualified candidate and Councilmember Brown SECONDED the motion. Mayor Schlum thanked the Committee for their recommendations and stated that it looks as though they have five qualified candidates. He agreed that Ms. Perica is qualified and said that she has been a resident of Fountain Hills for six months. He noted that they have turned candidates down in the past for not being a resident for a minimum of one year (as laid out in the Town Council's Rules of Procedure). He said he believes that language is more for a regional collaborative effort and stated that he appreciates that Ms. Perica appears to be more qualified but said that her appointment would not follow what they have done in the past. He added that Ms. Perica is now a resident of the Town and would be available for appointment in another year. He noted that she sounds like a great applicant who should be considered the next time this comes up. Councilmember Elkie commented that that was addressed during the Committee meeting and the Committee voted to make an exception and that is why they recommended Ms. Perica. He added that they believe that her z:\council packets\2011\r3-3-11\110217m.docx Page 6 of 22 extensive amount of experience probably overshadowed all of the applicants and in six months he doesn't believe she will have more experience than she has now and he would hate to turn down someone with so much experience, energy and desire. He encouraged the Council to approve Ms. Perica's appointment. Councilmember Dickey noted that the Council did not vote on anything during the Executive Session, they had discussed things, and it wasn't unanimous necessarily (the way the discussion went). She said they did not even interview people before if they hadn't lived in Town for a year so if the Council would like to look at that as a separate item, she indicated that she would be willing to do so, but she feels that at this point that it was never about qualifications, it was basically, "sorry, come back in six months" and they have done that before. She stated that she would not favor changing the original motion. Mayor Schlum commented that he appreciates what Councilmember Elkie said and noted the infrequent times that the Board of Adjustment meets, that this commission had less discretion, and the need to understand Fountain Hills. He said that by the time this applicant hopefully reapplies there will probably be a meeting so she may not miss out on any opportunity. He added that he hopes that she will not be deterred from reapplying and emphasized that her qualifications are not being underestimated; it is just that this is the policy that the Town has followed in the past. In response to a question from the Mayor, Senior Planner Bob Rodgers, advised that the last time the Board of Adjustment had met was last March. The Mayor called for a vote on the amendment. Mayor Schlum MOVED to approve the amended motion as presented (Ms. Perica in place of Dr. Griell) and Councilmember Brown SECONDED the motion. A roll call vote was taken with the following results: Councilmember Hansen Aye Councilmember Leger Nay Councilmember Dickey Nay Vice Mayor Contino Aye Councilmember Elkie Aye Mayor Schlum Nay Councilmember Brown Aye The motion CARRIED by majority vote (4-3). Councilmember Brown stated that he was part of the Committee that had conducted the interviews and that they had a very lengthy discussion on this issue. He added that they did not come to an agreement on anything during the Executive Session but the amount of knowledge and the enthusiasm that Ms. Perica brought to the table was quite impressive. In response to a question from the Mayor, Town Attorney Andrew McGuire advised that the provision in the Council's Rules of Procedure was intended to allow the Council to establish a board or committee that had membership that didn't include residents of the Town. He stated the opinion that the provision is open to interpretation on a case-by-case basis but the Town has interpreted it up to this point to require at least a one- year residency in Town. Mayor Schlum clarified that the amendment passes so Ms. Perica will serve in place of Dr. Gorrell and the other appointments remain as initially stated. Councilmember Leger commented that he clearly understands and respects the vote but for the record he does not understand how they cannot follow their own Rules of Procedure. He stated that he cannot tell them how z:\council packets\2011\r3-3-11\110217m.docx Page 7 of 22 many people came to the table that were told they had not been a r esident long enough and did not meet the criteria and they were told to come back once they met the requirement. He cited a specific example and noted that the person came back once she met the criteria and served. He spoke in opposition to ignoring a Rule of Procedure and said it would make sense to him to first amend the Rules of Procedure, which he would not be opposed to, and then act on appointing this individual. Councilmember Dickey asked when the main motion as amended is offered whether it is going to be the one year term for Ms. Perica and does everything change. The Mayor replied that that is the way it would be at this point because they merely switched those two people. Councilmember Dickey said that if she votes no on this it is not a reflection on any individual. Councilmember Elkie advised that as Chair of this Committee it was his understanding that they did not make decisions, they only made recommendations. He added that an exception can be made to the Rules in making a recommendation to the Council for an appointment to the Board of Adjustment (and during their Committee discussions that is what they recommended be done). There being no additional discussion, the Mayor called for a vote on the main motion. A roll call vote was taken with the following results: Councilmember Elkie Aye Councilmember Hansen Aye Councilmember Leger Nay Councilmember Brown Aye Councilmember Dickey Nay Vice Mayor Contino Aye Mayor Schlum Nay The motion CARRIED by majority vote (4-3). AGENDA ITEM #13 - CONSIDERATION OF APPOINTING TWO (2) CITIZENS TO SERVE ON THE PUBLIC SAFETY ADVISORY COMMISSION FOR A TWO (2) YEAR TERM BEGINNING FEBRUARY 17, 2011 AND ENDING DECEMBER 31, 2012. At the request of the Mayor, Councilmember Brown clarified that it is his understanding that the Council is going to appoint two citizens this evening and at the next meeting th ey will appoint an additional member because the interview was just conducted this evening. Mayor Schlum MOVED to appoint Larry Moyse and Anthony Finocchio to serve on the Public Safety Advisory Commission for a two-year term as outlined above and Councilmember Dickey SECONDED the motion. There were no citizens wishing to speak on this agenda item. The motion CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #14 - CONSIDERATION OF APPOINTING THREE (3) CITIZENS TO SERVE ON THE SENIOR SERVICES ADVISORY COMMISSION FOR A TWO (2) YEAR TERM BEGINNING FEBRUARY 17, 2011 AND ENDING DECEMBER 31, 2012. Mayor Schlum MOVED to appoint Nancy Blumenstein, Nancy McNamara and Jim Judge to the Senior Services Advisory Commission for a two-year term as outlined above and Councilmember Leger SECONDED the motion. z:\council packets\2011\r3-3-11\110217m.docx Page 8 of 22 There were no citizens wishing to speak on this agenda item. The motion CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #15 - CONSIDERATION OF APPOINTING TWO (2) CITIZENS TO SERVE ON THE COMMUNITY CENTER ADVISORY COMMISSION FOR A TWO (2) YEAR TERM BEGINNING FEBRUARY 17, 2011 AND ENDING DECEMBER 31, 2012. Mayor Schlum MOVED to appoint Jerry Gorrell and Alice Brovan to serve on the Community Center Advisory Commission for a two-year term as outlined above and Councilmember Dickey SECONDED the motion. There were no citizens wishing to speak on this agenda item. The motion CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #16 - CONSIDERATION OF APPOINTING THREE (3) CITIZENS TO SERVE ON THE PARKS AND RECREATION COMMISSION FOR A TWO (2) YEAR TERM BEGINNING FEBRUARY 17, 2011 AND ENDING DECEMBER 31, 2012; AND ONE (1) YOUTH COMMISSIONER TO SERVE FOR A ONE (1) YEAR TERM BEGINNING FEBRUARY 17, 2011 AND ENDING DECEMBER 31, 2011. Mayor Schlum MOVED to appoint Sharon Dennis, Don Doty, Danny Tancredi to serve on the Parks & Recreation Commission for a two-year term as outlined above and Amy Sanders (Youth Commissioner) to serve on the Parks & Recreation Commission for a one-year term as outlined above and Councilmember Hansen SECONDED the motion. There were no citizens wishing to speak on this agenda item. The motion CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #17 - CONSIDERATION OF APPOINTING FOUR (4) CITIZENS TO SERVE ON THE MCDOWELL MOUNTAIN PRESERVATION COMMISSION FOR A THREE (3) YEAR TERM BEGINNING FEBRUARY 17, 2011 AND ENDING DECEMBER 31, 2013. Mayor Schlum MOVED to appoint Steve Fleming, Gerald Bisceglia, Thomas Barberic, and Klaus Schadle to serve on the McDowell Mountain Preservation Commission as outlined above and Councilmember Dickey SECONDED the motion. There were no citizens wishing to speak on this agenda item. The motion CARRIED UNANIMOUSLY (7-0). Mayor Schlum thanked everyone who applied and commended the Committee for their work on this item. AGENDA ITEM #18 - CONSIDERATION OF RESOLUTION 2011-01, DECLARING AS A PUBLIC RECORD THAT CERTAIN DOCUMENT FILED WITH THE TOWN CLERK AND ENTITLED THE "TOWN OF FOUNTAIN HILLS PLANNED AREA DEVELOPMENT (P.A.D.) DISTRICT REGULATIONS." Mayor Schlum advised that they will hear a staff report covering Agenda Items 18, 19 and 20. Senior Planner Bob Rodgers addressed the Council on this agenda item and reviewed the contents of the staff report regarding Agenda Items 18, 19 and 20 (Copy available in the office of the Town Clerk). z:\council packets\2011\r3-3-11\110217m.docx Page 9 of 22 Mr. Rodgers advised that the proposed text amendment will create a new Zoning Ordinance , Chapter 23, Planned Area Development (P.A.D.) District. The amendment will also create a new P.A.D. Zoning District. Planned Are Development Districts or Zoning Districts will be different from other zoning districts and the PAD Districts will be a free-standing zone, not be dependent on an underlying zoning district for density, have a one- step plan approval process and simplify the "Minimum Criteria for Con sideration" currently located in numerous sections throughout the current ordinance. He added that the permitted land uses and allowed densities are based on General Plan land-use designations, not an underlying zoning district. The PAD approval process will require both a Rezoning and a Development Plan, which will be considered concurrently. The Development Plan will be reviewed and approved under the current Concept Plan review process by the Planning & Zoning Commission who will forward recommendations to the Town Council for the rezoning public hearings. The proposed rezoning process is the same process that is currently followed for rezoning applications and, in order to be built, must receive final approval from the Town Council. Once the Development Plan and the rezoning are approved, applicants may then proceed with preparing plans for building permit review. Mr. Rodgers explained that the criteria for P.A.D. approval are more substantial (even more than the current PUD requirements), which is necessary due to the flexibility of design, density and uses that may be permitted under a PAD district permit; the fact that the PAD ordinance will simplify the process; the fact that PAD approval is primarily discretionary for the Town and is not by right; benefits to be realize including as the Town nears build-out, it is facing more challenges on vacant lots as well as the probability of redevelopment in some areas, especially some of the commercial areas, and the PAD ordinance will allow the Town to design developments that provide for maximum benefit and provide the best product for the Town's citizens (projects will not be solely designed by developers); the PAD will help in dealing with problems associated with topography and unique lot dimensions while providing for some flexibility in those designs; the fact that the ordinance requires that 15% of any PAD be dedicated to open space and the fact that standard zoning works in most situations but has strict land use separation and dimensional r equirements that may not allow them to get where they want to go (the PAD will allow that flexibility while maintaining the same density); the fact that the Zoning Ordinance is a tool that the Town uses to guide development toward the land-use goals that are outlined in the General Plan; and the fact that the PAD Chapter will be one more tool that the Town can use while moving forward to meet the General Plan's land use goals. Mr. Rodgers advised that concerns that the PAD ordinance allows a developer to do too much or go too far without enough oversight may be decreased because a PAD designation is not "By Right" -- it is completely at the discretion of the Town Council and if the Council doesn't agree with everything that is being proposed, they have every authority to deny the request. He added that whether or not the PAD Ordinance benefits developers should not be the primary concern; the primary concern is whether or not the Town receives benefit and staff believes that it will. Mr. Rodgers stated that the Development Plan as well as all zoning stipulations is required in any PAD proposal. Every PAD proposal must conform to the General Plan Land Use and Density Designations (no variances, no waivers, no exceptions). PAD developments must have at least five acres to even qualify and at least 15% of that will be open space. PAD Zoning is flexible and is another tool that will benefit the Town. The PAD process essentially combines the Concept Plan to plat or replat, the rezoning and all the project 's stipulations into one package, which must conform to the General Plan before it will even get through staff review in order to be considered by the Planning & Zoning Commission and ultimately coming before the Council. Mr. Rodgers said that the Planning & Zoning Commission initiated this text amendment at their January 13, 2011 regular meeting. The Commission held a Public Hearing on January 27, 2011, and voted 5-1 to forward a recommendation to the Council to approve the PAD ordinance as proposed. He noted that the Council has the ability to add more criteria to the ordinance if they deem that appropriate and if the applicant does not agree, the Council may deny the request. He added that staff also recommends that the Council approve the PAD zoning ordinance text amendment. Mayor Schlum thanked Mr. Rodgers for his presentation. z:\council packets\2011\r3-3-11\110217m.docx Page 10 of 22 There were no citizens wishing to speak on this agenda item. Mayor Schlum asked if this pertained to five acres on both residential and commercial lots and Mr. Rodgers advised that any PAD has to have at least five acres regardless of the underlying zoning. In response to a question from the Mayor, Mr. Rodgers explained that the difference in this PAD proposal is not that significant. He noted that the previous one was more of a commercial PAD proposal primarily for use in the downtown area and other commercial districts. He noted that this actually includes residential areas as well if they are able to do that. Mayor Schlum commented that it doesn't change the density levels and Mr. Rodgers said that it meets the density requirements within the General Plan. Councilmember Leger indicated his intention to clarify his position on this and said that the last discussion on this was pretty colorful and extensive (May 2009). He stated that at that time he noted that the Zoning Ordinance had served them well and he believes that was true then and believes it to be true today. He advised that he previously opposed the PAD and explained that his concerns were primarily infill lots in established residential neighborhoods (a PAD could possibly allow some type of development that could adversely affect the character, compatibility and integrity of a particular neighborhood). He added, however, that in reading the new ordinance he found one revision that caught his attention (Section 23.06I), which states, "PAD zoning shall not be approved for one single family lot or for parcels of land less than five acres." He advised that this provision addresses his previously concern, which was also the concern of a number of constituents who live next to rather large empty lots in established neighborhoods. He said he wanted to explain why he opposed it then and why he might not oppose it now. Councilmember Hansen stated that a number of neighborhoods were developed and are still developing under development agreements that generally tend to go away after ten years. She asked if this will give them a tool that will allow people who purchase lots in that type of area the ability to develop the ir property as they originally bought it -- will this help them going forward to help the neighborhoods develop as they were originally intended. Mr. Rodgers replied that they would have to create a PAD District over that subdivision in order to do that b ut he sees instances where they could do that (adopt the regulations that were in their existing development agreements). Councilmember Dickey said that existing development agreements will not be changed unless they expire and Mr. Rodgers concurred. Councilmember Leger noted that the new policy addresses amendments and asked what the process would be for approving or disapproving an amendment. Mr. Rodgers responded that the ordinance lays out two amendment processes, one for minor amendments and one for major amendments. He said that the minor amendments are more of an administrative thing and major amendments would have to come before the Council for approval. Councilmember Brown commented that the key is they have to come back to the Council to be approved and he believes that seated Councils would not do something silly to hurt anyone in this Town. He added that he would like to think that future Councils will have the same integrity and see the value in this. He added that this is not always necessarily a negative thing; he thinks that this could be a very positive thing for some of the areas in Town and they have to focus on that. Councilmember Brown MOVED to approve the Planned Area Development Zoning Ordinance and text amendment and Councilmember Elkie SECONDED the motion. Councilmember Hansen noted that the Council needed to make it a public record first and the Mayor asked Mr. McGuire how to proceed on this. z:\council packets\2011\r3-3-11\110217m.docx Page 11 of 22 Mr. McGuire advised that they needed a motion to approve Resolution 2011-01. Councilmember Hansen MOVED to approve Resolution 2011-01 and Councilmember Brown SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #19 - PUBLIC HEARING REGARDING ORDINANCE 11-01, ADOPTING THE "TOWN OF FOUNTAIN HILLS PLANNED AREA DEVELOPMENT (P.A.D.) DISTRICT REGULATIONS BY REFERENCE; PROVIDING FOR SEVERABILITY AND PROVIDING FOR PENALTIES. CASE #Z 2010-04. Mayor Schlum declared the public hearing open at 7:55 p.m. There being no citizens to speak on this item, the Mayor declared the public hearing closed at 7:55 p.m. AGENDA ITEM #20 - CONSIDERATION REGARDING ORDINANCE 11-01, ADOPTING THE TOWN OF FOUNTAIN HILLS PLANNED AREA DEVELOPMENT (P.A.D.) DISTRICT REGULATIONS" BY REFERENCE; PROVIDING FOR SEVERABILITY AND PROVIDING FOR PENALTIES. CASE #Z-2010-04. Councilmember Leger MOVED to approve Ordinance 11-01, adopting the Town of Fountain Hills Planned Area Development (P.A.D.) District Regulations by reference; providing for severability and penalties and Councilmember Brown SECONDED the motion. No speaker cards were submitted. The motion CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #21 - CONSIDERATION OF ACCEPTING THE OFFICE OF THE ARIZONA ATTORNEY GENERAL'S REPORT DATED FEBRUARY 2, 2011, RELATING TO THE FOUNTAIN HILLS TOWN COUNCIL OPEN MEETING LAW INVESTIGATION FINDINGS, CONCLUSIONS AND PROPOSED REMEDY REGARDING THE APRIL 20, 2010 EXECUTIVE SESSION. Town Attorney Andrew McGuire addressed the Council relative to this agenda item and stated that back on April 20, 2010, the Council held an Executive Session to receive legal advice regarding the Town Council's role in the restructuring of the organization that Town Attorney Rick Davis carried out. This was a massive reduction in force. Prior to that meeting, Mr. Davis spoke with Mr. McGuire about the process for discussing this with Council and he had indicated a concern for the information traveling through the staff prior to being able to discuss it with the Council and prior to his being able to deal with it in a professional manner. Mr. McGuire stated that he was also concerned that the Council needed to understand their limited role in reorganization such as this. He noted that the Town Manager is responsible for all of the hiring/firing decisions but the Council is responsible for the organizational chart. He explained that to that end, the Council's Executive Session was designed for the specific purpose of addressing the Council's role in this process and the legal ramifications of the reduction in force and it made clear at the beginning of the meeting that they had to keep the discussion on point regarding that. Mr. McGuire advised that the meeting took place as scheduled and during the meeting Mr. Davis presented a PowerPoint presentation to provide the Council with an overview of what the reduction in force was going to look like as background to Mr. McGuire's legal advice as to where they would go next. He noted that at the next public meeting, the same PowerPoint presentation was shown to the general public as part of the Council's consideration of the organization chart. He stated that following that meeting, a complaint was filed with the Arizona Attorney General's Office for an Open Meeting violation alleging that materials discussed at that meeting had been discussed in general public in violation of the law. Mr. McGuire said that he received a telephone call from the Attorney General's Office months later, just a casual follow-up call, regarding the fact that a complaint had been filed. He noted that when complaints are filed with the Attorney General's Office z:\council packets\2011\r3-3-11\110217m.docx Page 12 of 22 they are confidential and nobody gets to see them or find out who filed the complaint. He added that the only evidence that is used is whatever the Attorney General's Office deems important. He further stated that the Assistant Attorney General who called him asked what the purpose of the meeting was and Mr. McGuire explained the purpose to her as he has just explained to the Council and provided her with t he only item she requested, the minutes of the Executive Session. The Assistant Attorney General advised him that they would start with the minutes and then would get back to Mr. McGuire if any additional materials/information was needed. He said that he expected to receive some type of formal complaint after that but they had received nothing until an actual set of findings was received a couple of weeks ago (Copy available in the office of the Town Clerk). Mr. McGuire informed the Council that the findings from the Attorney General's Office expressed concerns that the discussion was held entirely in the Executive Session and they were primarily concerned with the Town Manager's PowerPoint presentation -- that that was strictly legal advice (can he give legal advice without giving the background and would it have been different if Mr. McGuire had presented that same PowerPoint?). He stated that these are all questions that he discussed with the Assistant Attorney General and she indicated that these might have made a difference. Mr. McGuire advised that he does not see that as a major distinction, but that is fine. The findings were that the Town Manager's presentation should have been in public and it was the following week; that the Town Council's questions to staff, in particular the Town Manager, should have been held in public and they were the following week and that the public disclosure could not be conclusively decided because some of the matters should have been discussed in a public meeting, which they were the following week. Mr. McGuire stated that because of that, the Attorney General's investigation ended right there and they rendered their findings from that point. Mr. McGuire said that he discussed this with the Assistant Attorney General and asked her what would be the next step if the Town Council decides not to accept the finding and she advised that she would reopen the investigation and move forward, interviewing the people who were involved in trying to come to a conclusion on the second part of it, which was the initial complaint. She also indicated, however, that even after all of that if she came to the conclusion that there was a violation of discussions that should not have been spoken of in public, the remedy would be exactly the same -- she would recommend Open Meeting Law training that specifically focused on Executive Sessions and this would need to take place within six months. Mr. McGuire advised that based upon that determination it was his recommendation that the Town Council accept the findings and move forward, knowing that the only thing that could result from further investigation would probably be the same thing. He indicated his willingness to respond to questions from the Council and said that obviously they (he and staff) still believe that the Executive Session minutes contained sufficient amounts of legal advice and was still not something that they could discuss fully here. He added that frankly they disagree with the opinion of the Attorney General's Office but it really doesn't matter that they disagree. The Attorney General's Office has taken their position and discussions with other former members of the OMLET team (the Open Meeting Law Enforcement Team) indicated that it's a decision that could go either way and understood why the Town took the position that it did and the training is the lightest penalty that c ould be assessed and they had found that acceptable. Mayor Schlum thanked Mr. McGuire for his presentation. In response to a question from the Mayor, Town Clerk Bev Bender advised that one citizen, Robert James, submitted a card but did not wish to speak on the item. He indicated that he is against Item #21. The Mayor said that he will look for a motion at this time. Councilmember Dickey MOVED that the Council accept the Office of the Arizona Attorney General's Report dated February 2, 2011, and Councilmember Brown SECONDED the motion. Mr. McGuire said that he will presume that there is direction to go forward and find a trainer that meet s the criteria in the Attorney General's letter if the motion passes. z:\council packets\2011\r3-3-11\110217m.docx Page 13 of 22 Councilmember Hansen advised that she has a little problem with accepting this. She stated that she might agree with what the Assistant Attorney General's findings are but she has a pr oblem saying that she accepts it when they were following the advice of their professionals to go into Executive Session. She added that she is a little hard pressed to agree to this when the Council did not call the Executive Session, staff did. Councilmember Dickey said that she understands what they are saying but she actually does not agree with the findings because she feels it was a very appropriate subject but if they just take that part out of it, she does believe that the Councilmembers there believed they were in Executive Session, believed that that was confidential information and she believes that the confidential information was given out inappropriately so basically she is okay with sitting through the training because the message will be the same -- it will reiterate how strongly they need to stay within the law. She added that when they believe they are in Executive Sessions she believes they cannot discuss those issues with people other than who either had a right to be there or were there. She believes that there was a breach and that she can go through the training even though she doesn't agree that they should not have been talking about personnel issues in that way (in an Executive Session) because she believes that was very appropriate. Councilmember Hansen indicated that she would be in favor of obtaining additional information because (and she knows they have to be very careful about what they say in this meeting as well) she doesn't know that she can feel as strongly that they are sure of what took place. She said she would not have any problem letting the investigation go forward and verifying what they don't know really happened. She added that that is a really roundabout way of saying it, but they are really stuck here. Councilmember Elkie expressed the opinion that it is important to recognize exactly what this complaint is -- it is a complaint basically stating that there were discussions during Executive Session that should not have been held during an Executive Session. There are no particular findings by the Attorney General's Office or this particular Assistant Attorney General that any one of the Councilmembers up on the dais or the Mayor had breached any of the Executive Session rules so he certainly understands and has heard Councilmember Dickey's statements, but there has been no findings that there has been any type of breach of any information that came out of the Executive Session and anything more than that is just speculation. Councilmember Elkie addressed Mr. McGuire and said that one of the things that can happen if they do not accept this, is that the Attorney General's Office has the option of doing a further investigation and asked if that was correct. Mr. McGuire replied that the Assistant Attorney General who is in charge of this has indicated that if the Town desires she would be happy to reopen the investigation and conduct the interviews that she didn't conduct relating to the disclosure portion of it. She would draw her conclusion after that takes place. Councilmember Elkie stated that if Councilmember Dickey believes that there was in fact a breach and there was in fact the disclosure of Executive Session information then he would think that further investigation to essentially get to the bottom of it would be in everyone's best interest because he has a real concern that the message that they are sending out to the residents of the Town is that they are discussing things in Executive Session that they shouldn't be discussing and they are somehow keeping something hidden from them. He added that without a full investigation of this they won't be able to set the residents' minds at ease and say, "look, this is what it really is -- we are not hiding anything or keeping anything behind closed doors that shouldn't be behind closed doors." He stated that to the best of his knowledge this is the first time that there has been a sustained complaint filed against the Town of Fountain Hills and asked if he was correct in this belief. Mr. McGuire advised that he can't go back beyond 2002 with any certainty but this is the first one since he has been working for the Town. Councilmember Hansen commented on the fact that Mr. McGuire had received a telephone call late last year but then didn't hear anything until the complaint was received. She asked if there was any other time, since the Council didn't hear about this until a couple of weeks ago when they were copied on the Attorney General's z:\council packets\2011\r3-3-11\110217m.docx Page 14 of 22 report, that Mr. McGuire had been called upon in the past on any issues. She said she was wondering why the Council did not hear about this as soon as Mr. McGuire received the telephone call so they would have had a head's up that something was going on. She reiterated that she is wanting to know if Mr. McGuire, since his tenure with the Town, had received any other calls from that Office that just went away and the Council was never made aware of them. Mr. McGuire advised that he has not had any conversations with the Attorney General's Offi ce over the last ten years except for this one time. He said that he was aware of the report on the original complaint being filed and was told at that point that all Councilmembers (and he found out except for Councilmember Contino) were aware of the filing at that point. He noted that the Attorney General's informal inquiry was a bit different than his experience with other communities that have been involved in Attorney General investigations -- there was no formal written inquiry, not even an e-mail sent requesting information -- it was a very informal call. He explained that the OMLET group works in an extracurricular capacity and are not assigned to the OMLET Division as their primary role. The attorneys who represent other divisions have a full-time position representing those agencies. He added that they pull double duty to do the OMLET work so he can't s ay it was timely, untimely or in any way surprising knowing that after the fact there was a long time between communications. He stated that he fully expected if the Town was going to be subject to any full scale investigation beyond just the first inquiry that he would have received something that he could have passed along to the Council. He added that he is not in custody of any information that does not get passed along and it is certainly not one of those things they tend to do. He said he was as surprised as everyone else that the Attorney General's Office came to their findings without even a formal request to the Town. In response to a question from Councilmember Elkie, Mr. McGuire stated that he was informed that a complaint would be filed in May of 2010. Councilmember Elkie asked Mr. McGuire if he informed anyone on the Town Council and Mr. McGuire replied that he was not told one had been filed; simply that one would be filed. Councilmember Ekie also asked Mr. McGuire, when he received the call from the Assistant Attorney General (Ms. Alarcon) in December (the person who authored the letter they are looking at this evening) once he hung up the phone did he inform the Mayor or any members of the Council that this conversation had taken place. He added that at that point he had been made aware of the fact that a complaint had been filed. Mr. McGuire confirmed that he was made aware of that fact during the conversation. Councilmember Elkie asked whether following that conversation Mr. McGuire informed anyone (on the Council) by phone or e-mail that there was an ongoing investigation of a potential Open Meeting Law violation. Mr. McGuire responded that he did not, primarily because these are confidential complaints and he had no information to even provide. He did not know who had filed the complaint with any certainty, he didn't know any of the contents of the complaint, and didn't know anything about it other than the Attorney General's Office call to ask questions and request a copy of the Executive Session minutes. He added that that was the only thing requested and said that typically when an investigation like this takes place, Executive Session minutes, minutes of follow-up Council meetings and a number of things will be evaluated. He further stated that when he spoke with Ms. Alarcon at the Council's request, it was clear that she did not understand that the Council had been presented the exact same information one week later in the public session in full by Mr. Davis. He added that the only difference was that in the interim period Mr. Davis was able to go and carry out the delicate procedure of having to deal with the humans who were going to be involved in this (this was going to affect a lot of lives and he was concerned that it be handled professionally). He said that the gap of one week was not something that she evaluated and this was made very clear during his discussion with her. Councilmember Elkie commented that the important thing is that he understands that Mr. McGuire might not have known who had filed the complaint or had a copy of it, but he did know that a complaint had been filed and z:\council packets\2011\r3-3-11\110217m.docx Page 15 of 22 there was an ongoing investigation, which he did not inform the Council of at that time and instead chose to wait until an actual complaint of some sort was received. Mr. McGuire advised that at that point they were aware that someone had filed a complaint but they were not aware of whether or not an official file was going to be opened that would result in findings such as they have now. He added that it has been his experience in the past that there has been a much more formal process by which that goes by. He said that having one call and a set of minutes sent to the Attorney General's Office is not the typical process. Mayor Schlum stated that they are talking about Executive Session materials and said he wanted to make it clear that no decisions are made in Executive Sessions. Mr. McGuire concurred and said more importantly the Council didn't even have the authority to make the decisions that were being discussed in Executive Session. The only thing that the Council had the authority to do was approve the organizational chart and that was directly tied to the PowerPoint presentation that Mr. Davis provided first in the Executive Session and then to the public at the next meeting. He added that in staff's estimation this was the necessary background for the Council to fully understand the scope of what was coming their way one week later. He stated that had they known that the Attorney General was going to take this approach of course they would have taken a different approach. He said that maybe the Town Manager would have had one-on-one conversations with the members of the Council to inform them where he was going with it but that would not have provided the ability to discuss the legal constraints upon the Council's activity specifically with respect to employees who were going to be let go, some who had already contacted members of the Council. He advised that they had a very delicate situation going on and he understands, looking at it with 20/20 vision, that there was an error there and they shouldn't have made it but he believes it was very clear at the beginning of that Executive Session and something that the Attorney General had noted, was that the Executive Session minutes were very well done. He said they believe it was set up exactly the way it needs to be set up except the Town Manager made a presentation and conversations took place asking questions about that presentation and that is the focus of it. Mayor Schlum said that he believes Councilmember Elkie is talking about communication between the Town Attorney and the Council, which is also something worthy of consideration and discussion. He added that he has had conversations with Mr. McGuire related to some of these questions already, and probably most Councilmembers have, but communication can always be improved upon and maybe that is something for them to work on as well. He commented on the findings and in essence the punishment that they have to go through, namely one hour of training on Open Meeting Laws and asked if that was correct. Mr. McGuire advised that the request from the Attorney General's Office, after the follow -up phone call, was that the focus of the training be specifically on Executive Sessions. He added that the potential people that he has mentioned to the Attorney General's office as potential trainers were all acceptable so they will be able to move forward and find someone who is willing to volunteer and come out possibly during a Work Study Session (it has to be done within six months). He said that this will probably be conducted outside of the budget sessions so they don't have to also deal with all of those discussions. Mayor Schlum noted that it is related to one item within the Executive Session -- the presentation and not the entire Executive Session and Mr. McGuire concurred and said that the focus was on the presentation, the questions back to Mr. Davis and the discussion relating to that presentation. Councilmember Dickey clarified that the complaint was not about the content of the Executive Session; it was about a breach of the Executive Session. She stated that earlier it sounded like the complaint that went to the Attorney General's Office had to do with somebody questioning the materials and it just had to do with information from the Executive Session being told to those who weren't entitled to it. Councilmember Hansen advised that they did have the follow-up presentation of the reorganization following the Executive Session in a regular session but there was additional discussion that did take place in Executive z:\council packets\2011\r3-3-11\110217m.docx Page 16 of 22 Session that precluded that discussion being brought up at the regular session. She stated that some of that impacted the way she voted and she thinks the way the investigative report has been left leaves some things hanging up in the air as to the nuances and the fine details of what was okay to have in an Executive Session and what was not because there was back and forth conversation and questions. She added that there are some loose ends that she would like to see cleaned up. Mayor Schlum commented that he is generally okay with what is happening. He emphasized that he is not happy that they received this obviously but he also doesn't feel that one hour of Open Meeting Law training, particularly on Executive Sessions, is a bad thing for anyone to do. He said that the Open Meeting Laws keeps them from having discussions that most people think happen all the time. He added that the Law is quite restrictive but having an hour of training on this does not seem like a horrible thing and the Attorney General is not suggesting that they go forward with an investigation as long as they agree to this so although it is not a happy solution it is a practical one. He stated that there may be topics to discuss related to conversation and the subject at that time seemed to be handled in the most professional and sensitive manner for their staff. He reiterated that what they have before them is acceptance of one hour of training and it would seem to be impractical to go outside of the recommendation of staff on this item. Councilmember Hansen noted that they still have it out there that a breach occurred and they don't really know if there was a breach. Councilmember Elkie said that through his lengthy conversation with the Assistant Attorney General , Mr. McGuire was advised that she could continue and reopen her investigation, do interviews, speak with whoever it is that made the allegations to get to the bottom of it and then make a recommendation similar to what is being recommended here as far as going through one hour of Open Meeting Law training. He stated that he does not see how asking for the investigation or refusing to accept this report and requiring a further investigation to take place at risk of doing what is being proposed now would do any harm to the Council and in fact would put to rest any speculation, put to rest the allegations made and have everything out in the open. Mayor Schlum asked if the letter itself was a public record and Mr. McGuire confirmed that it is. He stated that it reads "Let me know if the Town Council agrees to resolve the matter as proposed. In the event that the report is not accepted we will reserve the option to file actions in Superior Court seeking penalties for violations set out in the letter, including additional monetary penalties for each violation, removal of office, costs and attorney's fees." He stated that it does seem like there are other things that could happen. He noted that the Attorney General received the complaint and should they feel it worthy of moving forward and if in fact the penalty would be the same as it is here, why don't they just get it done, learn from their Open Meeting Law training and move on. Councilmember Elkie advised that he does understand that there are other potential ramifications as stated in the letter but Mr. McGuire stated a short while ago that based on his conversation with the Assistant Attorney General this was something that she could open the investigation on and if the allegations or complaint is sustained she would expect to make a similar recommendation to what is being recommended here. He added that although all of the other penalties are potentially out there, if her statements to Mr. McGuire are accurate, then there is really no risk and they are looking at the same thing perhaps at a later date. Mr. McGuire stated that he wanted to make sure that everyone is clear on this. He said they have one written document from the Attorney General's Office, they have had informal conversations following that and in his discussions with this particular Assistant Attorney General, she seems like a very reasonable person who would be willing to do what she said. He added that he has no doubt that what she said was with honest intent. He informed the Council, however, that he cannot guarantee that going forward, knowing how the OMLET work is allocated, that she would be the one to finish off this particular request. He pointed out that there has been a lot of turnover at the Attorney General's Office and he doesn't want the Council to think that there is a guarantee that should another Assistant Attorney General pick this up that the person would take a similar position to what has been expressed. z:\council packets\2011\r3-3-11\110217m.docx Page 17 of 22 Councilmember Leger advised that he would like to address the Town Attorney and said that Mr. McGuire had had an opportunity to speak to the Assistant Attorney General. He said that he had read the letter several times and asked Mr. McGuire to correct him if he is wrong but regardless of whether this was to move forward the original finding would not change. He said that the original finding, as he interprets it and putting it in layman's words, was that their conversation was a little too broad and based on that, and her perceived inappropriateness of that, she has come up with a finding regarding the content versus the alleged violation. He added that it appears to him that if they went through this process again, that finding would p robably remain the same. The only thing that would be looked into further would be an interview of people in Town who may have stated that a Councilmember did in fact say something -- so it would get into that layer -- and that would be pain and suffering and creating a tempest in a teacup and at the end of the day they would remain with the same consequences. If in fact there was a breach by someone on this Council, he said he would hope the lesson would be learned simply through this letter and this conversation. He noted that he takes Open Meeting Laws very seriously and this is the fifth year that he has been on the Council and he takes Executive Sessions very seriously and believes that he understands the Statute. He pointed out that he went into this session willingly and participated willingly so for him it is not about sitting here and placing blame on anybody, it is a matter of simply accepting a judgment that was made by the Assistant Attorney General. He advised that he will accept responsibility for that and move on. He said that if they don't move on and reopen it, they are going to end up at the same place. He stated that it is clear to him that the intent of the Town Manager was to create an environment to protect the integrity of staff regarding a very sensitive, confidential personnel issue that also had possible and probable legal implications. He noted that that is why they sat there and were debriefed and he doesn't see any gain by going through the process all over again when they a re going to end up basically in the same place. He added that he doesn't have too much pride to say that he cannot accept this nor can he not sit down at another Open Meeting Law session and possibly learn because if he is in there, he will bring this up as a case study and they can talk about it. He said he would like to get feedback from the instructor on what his/her thinking is on the actions that he participated in. Mayor Schlum thanked everyone for their input and reiterated for the benefit of the public that no decisions are made in Executive Sessions and that the presentation that was shared during that Session was shared at a public meeting a week or so later. He commented that the reorganization was handled in the most sensitive way possible for the benefit of staff that would potentially be let go. Councilmember Hansen stated the opinion that all seven members of the Council look at this in a different way, some more similar than others. She said that personally, this was a big deal and she took it very seriously. She added that she thinks it is going to be hard to explain to the public when they see in the newspaper that the Council supposedly violated the Open Meeting Law because that is what they see and they are not going to hear all of the discussion about it. She stated that that is a hard thing to overcome and explain. She pointed out that the Assistant Attorney General's letter does state, "Due to the large amount of information that was discussed in the Executive Session that should have been in the public session, she could not definitively conclude that a specific Town Councilmember violated the Open Meeting Law." She noted that that would kind of indicate that there was quite a bit of discussion in there that should have been in regular session and she cannot say that all of that discussion was presented at the following regular session. She added that there is more to this, more that they cannot say because of Executive Session, but all of that goes into why she is taking this very seriously. Mayor Schlum agreed that this is a serious item and hopefully through their discussion they have explained it as best they can to the public but if they just see a finding from the Attorney General's Office asking the Council to do an hour of Open Meeting Law training and only see that, perhaps there is that concern. He further stated that he was not happy to receive this either but it is before them to consider. Councilmember Leger concurred with the concerns expressed by Councilmember Hansen and said that he too takes this very seriously and is also very concerned about the perception as a result of this judgment and recommendation by the Attorney General's Office. He added, however, that the longer they continue it will not solve the perception issue and in particular, the deeper they move with their investigation, and they are basically saying they will come back with the same recommendation anyway; they kind of go full circle. He noted that as the Mayor clearly stated, the Council does not make decisions in Executive Sessions. The Session was basically z:\council packets\2011\r3-3-11\110217m.docx Page 18 of 22 a debriefing around a very sensitive issue that impacted the lives of many pe ople with possible implications for liability. He pointed out that that doesn't change and people will perceive what they want to perceive and no matter how long they take to move through this they are going to end up in the same place. He added that if he thought there was flexibility in terms of her coming back and ruling differently on the content, which is what this is addressing, then he would feel more confident in moving forward with an appeal. Councilmember Brown also agreed that this is a very serious matter but said that they could drag it out for another two years and talk about it at every Council meeting for who knows how long and he thinks this Council has more to deal with than being dragged through the courts over something that they could take a little tap on the shoulder for and move on. He expressed the opinion that the Council needs to si gn the acceptance, send it back, take the tap on the shoulder, continue on and not let it happen again. He spoke in opposition to wasting staff's time, the Attorney General's Office's time and their time in fighting this. He said that they need to then continue on down the path and deal with the budget and other matters in Town that are more important than dealing with attorneys right now. Councilmember Dickey stated the opinion that there is nothing to speculate about -- everything that was in the letter has been discussed and the Council this evening has thoroughly discussed the matter. She added that they stated what it is, what their findings were and what they are going to do and that is all there is -- there is no mystery right now. She said that it is out there and they will move forward. She agreed that they can always learn from training and there is nothing wrong with hearing these things again and she is willing to accept that. Councilmember Elkie advised that he would have to disagree in that it is not as clear cut as what is being purported. He noted that they have a complaint but do not know who filed the complaint, they don't know the contents of the complaint, they don't know what the ultimate findings of the allegations contained in the complaint are. He added that he agrees with Councilmember Hansen that there was more discussion in Executive Session than what came out in the next regular session. He commented that unfor tunately their hands are tied as far as Councilmembers because they are bound by Executive Session rules and there are things that they can't discuss. He stated that he firmly believes that if they are thinking about potentially looking at an investigation with some final closure on the matter and getting to the bottom of it, so to speak, with the same potential sanction, there are no energies that are going to be extended that he can see as far as the Town is concerned -- they would wait for the Attorney General's Office to conduct their investigation, provide them with another report and if the penalty is the same they will do it at a later date. He added that he doesn't see what the problem with that is. Mayor Schlum thanked everyone for their input on this issue and called for a vote on the motion. A roll call vote was taken with the following results: Vice Mayor Contino Nay Councilmember Dickey Aye Councilmember Hansen Nay Councilmember Brown Aye Mayor Schlum Aye Councilmember Leger Aye Councilmember Elkie Nay The motion CARRIED by majority vote (4-3). AGENDA ITEM #22 - CONSIDERATION OF DIRECTING THE TOWN MANAGER TO PREPARE THE APPROPRIATE WRITTEN NOTIFICATION DOCUMENTATION TERMINATING THE REPRESENTATION OF THE LAW FIRM OF GUST ROSENFELD, P.L.C. FOR TOWN ATTORNEY SERVICES. z:\council packets\2011\r3-3-11\110217m.docx Page 19 of 22 Councilmember Elkie stated that based on a thorough discussion of Agenda Item #21, he has some serious concerns about the Town's representation by the law firm of Gust Rosenfeld, specifically Town Attorney Andrew McGuire. He said that there are a number of things that they as Councilmembers can't discuss because they are privileged, either through Executive Session or privileged confidential conversations between Councilmembers and their Town Attorney. He stated the opinion that there have been some serious shortcomings in this complaint, the first that he is aware of and said that Councilmember Hansen might know of any other complaints that have been filed and sustained by the Attorney General's Office. He advised that his concerns center around some items that they touched on briefly. Mayor Schlum asked Councilmember Elkie if he would bring forth a motion prior to further discussion. Councilmember Elkie MOVED to direct the Town Manager to prepare the appropriate written notification documentation terminating the representation of the law firm of Gust Rosenfeld, P.L.C. for Town Attorney Services and Councilmember Hansen SECONDED the motion. Town Clerk Bev Bender advised that she received a card from Robert James who wanted the Council to know that he supports this action (he was not present to speak). She added that there are two other speakers. Linda Bordow addressed the Council and stated that she disagrees with Councilmember Dickey's comments and she is more confused now than when she came into the meeting. She said it seems to her that the Town Attorney is the Town Attorney and would have a fiduciary responsibility to inform the Town about such things as a complaint being filed against the Town in the Attorney General's Office. She added that it is her understanding that this is not the first time that a mistake like this has been made and unfortunately those mistakes have been costly as well. She advised that she supports replacing the Town Attorney for those reasons. She referred to a comment from Councilmember Leger (this was something that impacted the lives of many individuals and had possible legal ramifications) and said that everyone has been "dancing around the subject" and she really doesn't know what is going on. She commented that when you start paying attention to politics you find that there's usually money or a sexual offense involved and she wonders what could be so confidential that the Town can’t say anything about it. She questioned whether someone got caught misappropriating funds and asked what happened and why was there no investigation carried out if that's what it was. She asked if there was some type of sexual misconduct going on and said she doesn't know. She stated that confidence in politicians is not really high and she doesn't want to not have faith in the Town Council. She added that she loves the Town and wants to know what the investigation was, what is going on and can the public see the minutes from the Executive Session (when will they be released?). She noted that this is probably going to receive a lot of exposure and she doesn't want time wasted worrying about something that could be cleared up by further investigation. She spoke in support of the Council going th rough the training as proposed and said that some of the law is difficult to understand and it is important that everyone knows what the rules are so whatever happened does not happen again. Peter Bordow advised that he would like to just go on the record as agreeing with the comments presented by his wife, Linda Bordow. Mayor Schlum thanked the speakers for their comments. Mayor Schlum MOVED to continue this item to the next Work Study Session and make this an item to look at more broadly (legal services and how the Town has used them for the last nine or ten years). The Mayor stated that if they were to move on this item tonight in the affirmative, it would have significant budgetary impacts and impacts on the continuity and ramifications on the Town, since Mr. McGuire is the Town's only attorney. He expressed the opinion that a more appropriate way to move on this would be to address the items brought up tonight in a Work Study Session. He added that legal services can then be discussed in a more detailed fashion during that open meeting. He said that it may give Councilmembers more opportunity to consider issues. z:\council packets\2011\r3-3-11\110217m.docx Page 20 of 22 Councilmember Brown SECONDED the motion. The Mayor asked for discussion on the motion to continue. Councilmember Elkie stated that this is an issue that is being discussed this evening and some of the concerns he has relate to the discussion that they just had with respect to Agenda Item #21. He said that if they are going to postpone this they are going to be re-discussing Item #21 and he believes it would be more timely to have the discussion now because those who are watching here in the Chambers and those watching from their homes are certainly going to want to know what the issues are. He spoke in support of having the discussion this evening. Councilmember Dickey pointed out that this agenda item was added yesterday and said that it was hard to prepare for it with so little time. She advised that one of the questions she has is what are they going to talk about and if they continue it she will be able to ask what they are allowed to talk about. She said that she would like to say some things about the issue but is not sure she can because she does not know the constraints they are under. She added that the extra time will allow her to find out what she needs to know because it is a lot easier to talk about the truth and she would like that opportunity. Councilmember Brown stated that he too was surprised that this item was added to the agenda so late. He said that he is not ready to render a judgment on hiring or firing anyone with only a 24 -hour notice. He expressed the opinion that a Work Study Session to discuss this is very appropriate and will provide the Council sufficient opportunity to prepare themselves for that discussion. He said the Town can prepare itself and they can get input from the public but he would not support taking action on this agenda item this evening. Councilmember Elkie pointed out that Agenda Item #21 was placed on the agenda just 48 hours ago and they had full discussion on that item. He stated the opinion that the Council should be prepared to discuss and vote on this agenda item. Councilmember Dickey noted that she received a memo about a week or so ago (before the Work Study Session where the Council was told that they would be talking about the matter either at the Work Study Session or at this meeting) so she didn't feel that the item was unexpected. Mayor Schlum commented that there has been discussion between Councilmembers individually about looking into legal services and he believes the Town Attorney would agree that that was not inappropriate. He noted that Mr. McGuire has served the Town for a good number of years and so the reason behind continuing this is to have the ability to get a good discussion going, give staff time to help the Council know what their options are and come to the meeting with good information. He said he doesn't see any reason to hurry this and would rather have the discussion at a Work Study Session and render a decision at a Regular Council meeting after they understand what the budgetary and other impacts are. Councilmember Hansen expressed the opinion that the intent behind putting this on the agenda so quickly was to express the depth of gravity some of the Councilmembers felt about this issue. She advised that she would not have a problem continuing this as well but she thinks this was meant to show that this is a very serious matter. Mayor Schlum said that he would be shocked if everyone on the Council did not agree with the seriousness of this matter. Councilmember Elkie stated that after hearing the Mayor's comments and those of the other Councilmembers he could agree to postpone this item to a Work Study Session. He agreed that they wanted to make sure that the gravity of Item #21 was expressed. Vice Mayor Contino concurred with Councilmember Elkie's comment and said that he felt left out and was very disappointed. He said this issue is very important to him but he will agree to continue it. z:\council packets\2011\r3-3-11\110217m.docx Page 21 of 22 Mayor Schlum noted that a Work Study Session will provide an opportunity for communication to take place and he looks forward to the Council working with staff to ensure that they get the most out of the Work Study Session. Councilmember Leger advised that he is a little concerned about a comment that was just made by a member of the public because this meeting airs over Channel 11 and many people watch it and oftentimes make decisions on comments that they hear. He added that speakers sometimes have the facts but sometimes they do not and project things that sometimes are not even close to reality. Mayor Schlum interjected that they are discussing the continuance issue at this time. The Mayor called for a vote on the motion to continue. The motion CARRIED UNANIMOUSLY (7-0). Mayor Schlum said that a citizen had voiced concern about things unknown and asked if anything can be said or whether they needed to move on to Item #23. Mr. McGuire replied that there is nothing remaining on the agenda that would allow discussion on the comments that were made and added that he would be happy to provide as much information as possible for the Work Study Session and any subsequent meetings. AGENDA ITEM #23 – COUNCIL DISCUSSION/DIRECTION TO THE TOWN MANAGER. Items listed below are related only to the propriety of (i) placing such items on a future agenda for action or (ii) directing staff to conduct further research and report back to the Council. A. None. AGENDA ITEM #24 – SUMMARY OF COUNCIL REQUESTS AND REPORT ON RECENT ACTIVITIES BY THE TOWN MANAGER. Mayor Schlum stated that Mr. Davis will place Item #22 on the agenda of a Work Study Session. Mr. Davis asked for clarification on what to prepare for the Work Study Session other than options. He asked what other options the Council would like presented. Mayor Schlum advised that they are looking for options to consider legal services and dialogue related (pros and cons). He suggested that Mr. Davis work with Councilmember Elkie and others to determine exactly what they would like to discuss at the Work Study Session. Councilmember Leger asked the Town Attorney if it would be appropriate to make a recommendation to the Town Manager to agendize the discussion on their Commission policy that they had talked about earlier this evening. He noted that the Council did not follow their own Rules of Procedure and if that is the case and the Council feels they want to move in that direction, he thinks it might be healthy to review that policy. Mr. McGuire advised that it would be appropriate to mention because it was on the agenda this evening. Mr. Davis advised that staff continues to review things at the Legislature, bills that will affect cities and towns, and noted that the League has requested a consensus from cities and towns relative to their position on certain issues. He said that some of them have very serious fiscal impacts for the Town and he would like to gather information relative to eight or ten bills and bring them before the Council for discussion on whether they support or do not support the League's position on those bills so that staff can then communicate the Town's position. z:\council packets\2011\r3-3-11\110217m.docx Page 22 of 22 Mayor Schlum encouraged the members of the Council to meet with the Town Manager on that issue. Councilmember Dickey announced that the Council was invited by Mayor Jim Lane to attend a presentation called Keeping Americans Safe - Best Practices to Improve Community Policing and Protect the Public. She advised that she attended and discussed the distinguished speakers in attendance. She said that the discussion was very interesting, attended by Mayors, Councilmembers, City Managers, members of law enforcement and the public, and she believes that the resulting report contains a lot of useful information to bring forward. She noted that the report is on Goldwater Institute's website (www.goldwaterinstitute.org) and added that at some point they might want to talk about some of the things in the report. Mayor Schlum advised that in support of one of the Town's goals, Civility, he joined most of the Mayor's in Arizona and signed the U.S. Conference of Mayor's Civility Accord, which respects many of the right of all Americans. AGENDA ITEM #25 - ADJOURNMENT Councilmember Elkie MOVED to adjourn the meeting and Councilmember Leger SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). The meeting adjourned at 8:57 p.m. TOWN OF FOUNTAIN HILLS By __________________________ Jay T. Schlum, Mayor ATTEST AND PREPARED BY: _________________________ Bevelyn J. Bender, Town Clerk CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Regular Session held by the Town Council of Fountain Hills in the Town Hall Council Chambers on the 17th day of February, 2011. I further certify that the meeting was duly called and that a quorum was present. DATED this 3rd day of March, 2011. _____________________________ Bevelyn J. Bender, Town Clerk