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HomeMy WebLinkAbout2011.0317.TCREM.Minutesz:\council packets\2011\r4-7-11\110317mr.docx Page 1 of 20 TOWN OF FOUNTAIN HILLS MINUTES OF THE EXECUTIVE AND REGULAR SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL MARCH 17, 2011 EXECUTIVE SESSION AGENDA CALL TO ORDER Mayor Schlum called the Executive Session to order at 5:34 p.m. in the Town Hall Fountain Conference Room. AGENDA ITEM #1 – ROLL CALL AND VOTE TO GO INTO EXECUTIVE SESSION: PURSUANT TO A.R.S. §38-431.03(A)(7), DISCUSSIONS OR CONSULTATIONS WITH DESIGNATED REPRESENTATIVES OF THE PUBLIC BODY IN ORDER TO CONSIDER ITS POSITION AND INSTRUCT ITS REPRESENTATIVES REGARDING NEGOTIATIONS FOR THE PURCHASE, SALES OR LEASE OF REAL PROPERTY (SPECIFICALLY, A POSSIBLE PROPERTY EXCHANGE). ROLL CALL: Present for roll call were the following members of the Fountain Hills Town Council: Mayor Schlum, Vice Mayor Contino, Councilmember Brown, Councilmember Leger*, Councilmember Dickey and Councilmember Elkie. Town Manager Rick Davis, Director of Community Development Paul Mood, Town Attorney Andrew McGuire and Town Clerk Bev Bender were also present. Councilmember Elkie MOVED to enter into the Executive Session at 5:34 p.m. and Councilmember Brown SECONDED the motion, which CARRIED UNANIMOUSLY by those present and voting (5-0) with Councilmember Leger arriving after the vote to convene. *Councilmember Leger arrived at 5:36 p.m. Councilmember Hansen was not present for the discussion due to a conflict of interest. AGENDA ITEM #2 – ADJOURN TO THE REGULAR SESSION Mayor Schlum adjourned the Executive Session at 6:18 p.m. REGULAR SESSION 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 – Elder Roger Bates, Christ’s Church of Fountain Hills * ROLL CALL Present for roll call were the following members of the City Council: Mayor Schlum, Vice Mayor Contino, Councilmember Brown, Councilmember Leger, Councilmember Elkie, Councilmember Hansen and Councilmember Dickey. Town Manager Rick Davis, Town Attorney Andrew McGuire and Town Clerk Bev Bender were also present. * MAYOR’S REPORT Mayor Schlum wished everyone a Happy St. Patrick's Day and acknowledged the two -year anniversary of the passing of former Councilmember Keith McMahon. He commented that Councilmember McMahon was an avid volunteer and accomplished wonderful things for the community. z:\council packets\2011\r4-7-11\110317mr.docx Page 2 of 20 * SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS (i) The Mayor will read a Proclamation declaring April 2011 “Volunteer Month.” Mayor Schlum stated that April is designated National Volunteer Month stating that giving freely to others is one of the noblest human enterprises. He advised that this year marks the 38th annual celebration of Volunteer Month, created in 1973, to recognize the efforts of dedicated community volunteers. He noted that nationally more than 140 million volunteers work in their communities and contribute their time and talents to make a real difference in the lives of others. The Mayor advised that more than 700 Fountain Hills' volunteers donated their time to the Town in 2010 by giving approximately 25,000 hours of volunteer service to the Community Center, Senior & Boomer Activity Center and the Municipal Court, as well as volunteering in departments at Town Hall including Administration, Development Services and Community Services. Mayor Schlum stated that it is his honor to proclaim April 2011, as Volunteer Month in the Town of Fountain Hills and expressed deep gratitude to the many volunteers who support the Town by generously giving their time and talents to benefit the community. CALL TO THE PUBLIC Town Clerk Bev Bender advised that two citizens wished to address the Council. Mike Archambault addressed the Council and expressed his opinion regarding the article published in The Times last week. He said that in all the years he has lived in Fountain Hills (40) he has never seen such a flagrant violation of a person's personal affairs. He stated that he represents several residents when he says that they are truly sorry for the embarrassing incident. He commented on his long-standing relationship with the Mayor and quoted a Bible verse. He added that he is here to bear witness to the numerous good things the Mayor has done for the communit y and said that he is sure his love for his fellow man and God play a role in his actions. He stated that he finds it despicable that a person does not sign a letter that they placed on a reporter's desk alerting them to some personal matter and added that this speaks volumes about their integrity. He commented that he stands before them in testimony to the Mayor's unwavering integrity and is proud to say that he knows him and proud to stand next to him. He said that he would offer whatever he has at his disposal to help him and his family and said he would do that for anyone else in need as well because he knows whatever he does to his brothers he does unto God. Linda Bordow addressed the Council and said she wanted to talk about preparedness. She stated that in lieu of what has happened in Japan, she doesn't know what they are in for next -- terrorist attacks, power outages, etc. She spoke in support of establishing some type of volunteer civilian unit that could do things like secure grocery stores, medical supplies, water supply, etc. She noted that the Town has a great Sheriff's Office but there are only a handful of them available because the Town has a satellite office. She commented on the many volunteers in Town who have military backgrounds and could offer additional expertise in many other important areas. She added that if people knew that the Town was prepared for emergencies it would help alleviate some of the fears that exist. She offered her assistance in any endeavor that the Town ultimately decides to become involved in. Ms. Bordow also stated that she feels sympathy for the Mayor's children as a result of the article referred to by the previous speaker but added that unfortunately he is a public official and that is how the system works in this country (even though she is not proud of it). She said although she does not personally agree with personal attacks that is a part of politics. Mayor Schlum commented that the Town does in fact have an Emergency Preparedness Plan in place for the Town and said that she will likely hear from Chief LaGreca on this issue since he is very involved in that process. Edward Zalig addressed the Council and said that he wanted to find out some more information about the trash program that was voted into law by the Council. He advised that he was told by someone at Town Hall that there are a total of 216 pages dealing with the trash program. He stated that he requested and paid for 16 of those pages (explanations of the do's and don'ts regarding trash). He said that the conclusion he has reached thus far is that there is an absurdity and complexity in the rules and regulations involved in this package. He added that things are complicated and contradictory. He noted that violations, fees and penalties can be very expensive and he has never experienced such a thing before and he does not believe that should be a part of it. He expressed the opinion that a disservice was done to the community by not allowing the residents to vote on this issue and asked who was responsible for initiating this. He questioned the process that was involved and asked if there was a way to negate this whole process (and if there is, he suggests that it be done). z:\council packets\2011\r4-7-11\110317mr.docx Page 3 of 20 The Mayor requested that Town Manager Rick Davis provide Mr. Zalig with information to address his questions since the item cannot be discussed at this time. Mayor Schlum thanked all of the speakers for their comments. CONSENT AGENDA AGENDA ITEM #1 – CONSIDERATION OF APPROVING THE TOWN COUNCIL MEETING MINUTES FROM FEBRUARY 8 AND MARCH 3, 2011. AGENDA ITEM #2 – CONSIDERATION OF APPROVING RESOLUTION 2-11-11, ABANDONING WHATEVER RIGHT, TITLE OR INTEREST THE TOWN HAS IN THE CERTAIN PUBLIC UTILITY AND DRAINAGE EASEMENTS LOCATED AT THE SOUTHERLY AND EASTERLY PROPERTY LINE OF PLAT 603-A, BLOCK 2, LOT 1 (15202 E. LOTUS LANE) AS RECORDED IN BOOK 196 OF MAPS, PAGE 28, RECORDS OF MARICOPA COUNTY, ARIZONA (EA11-01 RAGOZZINO). AGENDA ITEM #3 - CONSIDERATION OF A SPECIAL EVENT APPLICATION FOR THE MOVIE IN THE PARK SPONSORED BY THE TOWN OF FOUNTAIN HILLS TO BE HELD APRIL 2, 2011, IN FOUNTAIN PARK. SAGUARO BOULEVARD WILL BE CLOSED FROM AVENUE OF THE FOUNTAINS TO PALISADES BOULEVARD. Vice Mayor Contino MOVED to approve the Consent Agenda as listed (Items 1 – 3) and Councilmember Elkie SECONDED the motion. A roll call vote was taken as follows: 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 #4 – CONSIDERATION OF APPOINTING ONE (1) CITIZEN TO SERVE ON THE PUBLIC SAFETY ADVISORY COMMISSION FOR THE REMAINDER OF A TWO (2) YEAR TERM, BEGINNING MARCH 17, 2011 AND ENDING DECEMBER 31, 2012. Mayor Schlum MOVED to appoint George Aliory to serve on the Public Safety Advisory Commission for the remainder of a two-year term beginning March 17, 2011 and ending December 31, 2012 and Councilmember Brown SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #5 - CONSIDERATION OF RESOLUTION 2011-10, APPROVING A SECOND AMENDMENT TO THE DEVELOPMENT AGREEMENT WITH PACIFIC FH RESORT, L.L.C. Senior Planner Bob Rodgers addressed the Council relative to this agenda item and reviewed the Staff Report (Copy on file in the office of the Town Clerk). He said that according to the site plan provided by Group West Companies, LLC, the Fountain Hills Conference Resort & Spa is planned as a resort conference hotel with 23 3 guest rooms and 36 condominiums for a total of 269 units. Also included is a sales office, conference space, restaurant, a lounge, ballrooms, gift shop, outdoor patios, pools, etc. The project is located on Palisades Boulevard just north of the Palisades/Shea intersection and is slightly more than 59 acres in size (36 acres dedicated open space and 23 acre s for the resort). He z:\council packets\2011\r4-7-11\110317mr.docx Page 4 of 20 noted that the Development Agreement contains a lot of elements and was a very time consuming project for staff (a General Plan Amendment, a rezoning, waivers, Hillside Protection, etc.). He advised that w hat is before the Council this evening is a second amendment to the Development Agreement and seeks a five year extension of the expiration date to March 2016. He noted that the property owners are requesting this extension due to the current economy and staff recommends that the Council approve the proposed amendment as presented. Mr. Rogers indicated his willingness to respond to questions from the Council. Ms. Bender advised that one citizen wished to speak on this item. Lindsay Schube, with the firm Beus Gilbert PLLC, addressed the Council and said that she is here to represent the applicant. She concurred with the remarks provided by Mr. Rodgers and also indicated her willingness to respond to any questions. Mayor Schlum thanked Mr. Rodgers and Ms. Schube for their comments. Councilmember Dickey MOVED that the Council approve the Second Amendment to the Fountain Hills Conference Resort & Spa Development Agreement as presented and Councilmember Hansen SECONDED the motion. Mayor Schlum asked what has changed in the Development Agreement and Mr. Rogers advised that beyond some minor changes, the significant change is the extension of the expiration date. He noted that it was due to expire this year. Town Clerk Bev Bender asked if the motion should reflect the Resolution numb er and Town Attorney Andrew McGuire replied that it should. He added that the first page of the Second Amendment has a date from a prior Council meeting when this was intended to be presented. He advised that staff will be swapping that page out and the motion should include both the Resolution number and acknowledgement regarding the fact that the first page of the agreement will be swapped out. Councilmember Dickey MOVED that the Council approve the Second Amendment to the Fountain Hills Conference Resort & Spa Development Agreement, to include Resolution 2011-10, as presented and with the corrected date (March 17, 2011) to be inserted and Councilmember Hansen SECONDED the motion, which CARRIED UNANIMOUSLY (7- 0). AGENDA ITEM #6 - CONSIDERATION OF APPROVING PAYMENT TO TYLER TECHNOLOGIES FOR PAST DUE ANNUAL SOFTWARE MAINTENANCE CONTRACT IN THE AMOUNT OF $60,000 FOR FY09/10 AND FY 10/11. Deputy Town Manager/Finance Director Julie Ghetti addressed the Council relative to this agenda item . Ms. Ghetti advised that back in 2008 the Council approved an investment in a municipal software package that would encompass all Town programs. She said that they purchased the software and went live in July 2009. She reported that subsequent to the purchase, staff was also required to pay for the annual maintenance, which included calls for service. She added that in the meantime the Town had paid a considerable amount of money for training and had issues with the training when they went live (created some problems and a disagreement resulted). As a result, the Town did not pay that first year of maintenance because they were not happy with the level of service received during the training. Subsequent to that happening, staff met several times with the company and the Vice President finally came out and saw what the Town's issues were and came to an agreement that they would waive half of that maintenance fee for the first year. She noted that what is before the Council this evening is authorization to pay Tyler Technologies for half of the year's maintenance for last year as well as the maintenance for this year. She advised that the program is a very good one and staff has no issues with it; the problem was with the training staff received and the company agreed to waive one half of the maintenance fee as a result of negotiations. Mayor Schlum thanked Ms. Ghetti for the update and noted that the Council heard a similar presentation at a recent Work Study Session and it was before them this evening for action. There were no citizens wishing to speak on this item. Councilmember Brown MOVED to approve payment to Tyler Technologies for the annual software maintenance and Councilmember Dickey SECONDED the motion. z:\council packets\2011\r4-7-11\110317mr.docx Page 5 of 20 Mayor Schlum advised that this is something that carries over into a few fiscal years and relates to the financial program that all Town departments are a part of and which has greatly benefitted overall operations. He said that since the training did not go as smoothly as anticipated or represented, staff negotiated a lesser cost on the annual maintenance plan. Ms. Ghetti concurred with the Mayor's remarks and added that even though the Town had not paid for the maintenance the company continued to provide customer support whenever it was needed (no interruption in their service). She reported that staff would have paid almost $50,000 in 2009/10. The Mayor noted that they are now paying $60,000 for two fiscal years. He thanked Ms. Ghetti for her explanation. The motion CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #7 - CONSIDERATION OF AUTHORIZING THE TRANSFER OF APPROPRIATION FROM THE CONTINGENCY EXPENDITURE LINE ITEM WITHIN THE TOWN MANAGER DIVISION, ADMINISTRATION DEPARTMENT OF THE GENERAL FUND BUDGET TO THE COMMUNITY SERVICES DEPARTMENT’S MAINTENANCE LINE ITEM IN THE AMOUNT OF $26,278 TO REPAIR THE TOWN RECREATION FACILITIES. Ms. Ghetti also addressed the Council regarding this agenda item. She advised that back during the FY2010-11 budget process last spring, a contingency expenditure line item was included in the General Fund to cover any shortfall in revenues ($225,000 contingency line item). She reported that they have had eight months of revenues elapse and it appears that there will not be a shortfall in General Fund revenues. She explained that as these funds were previously un- appropriated and available; staff is proposing that they be transferred to the Community Services Department for much needed facility improvements (parks and Community Center improvements). She noted that the repairs were proposed in the FY 2010-11 budget but eliminated during the budget reconciliation process. She further stated that staff is recommending that the available funds be used for the repairs to the athletic courts i n the late spring when there is minimal use and before the surface deteriorates further. There were no citizens wishing to speak on this item. Mayor Schlum thanked Ms. Ghetti for her overview. Councilmember Dickey MOVED to approve the transfer of appropriation from the contingency expenditure line item within the Town Manager Division, Administration Department of the General Fund budget to the Community Services Department facilities maintenance line item in the amount of $26,278 to repair Town recreati on facilities and Councilmember Leger SECONDED the motion. In response to a request from the Mayor, Director of Community Services Mark Mayer outlined the items that will be covered and discussed advantages associated with moving ahead in late spring. Councilmember Hansen commented that a citizen had informed the Council at a previous meeting that she had tripped and fallen on the pickleball courts because of the cracks and deteriorating condition of the courts. She asked if safety is also an issue with the tennis courts. Mr. Mayer replied that it is an issue but less so than the pickleball courts (easier to patch). Councilmember Hansen asked if there was any benefit to doing the pickleball courts prior to the tennis courts since there have been some complaints and Mr. Mayer replied that the tennis courts receive a much larger volume of use than the pickleball courts and that is why staff selected the priority order as shown in the report. Vice Mayor Contino said that some citizens had told him that the new covering on top would not do much to improve the tennis courts and asked Mr. Mayer to discuss this. Mr. Mayer said that down the ro ad they will probably have to do more but noted that it would be tremendously expensive -- they would have to grind it down and start all over again. z:\council packets\2011\r4-7-11\110317mr.docx Page 6 of 20 The Vice Mayor asked if they were just putting a "band aid" on this and Mr. Mayer replied he thinks the y are when they are talking about tennis courts. He added that he has not seen a lot of settling and major cracks on the tennis courts but a t some point they will have to be reconstructed. The motion CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #8 – CONSIDERATION OF AUTHORIZING THE TRANSFER OF APPROPRIATION FROM THE CONTINGENCY EXPENDITURE LINE ITEM WITHIN THE TOWN MANAGER DIVISION, ADMINISTRATION DEPARTMENT OF THE GENERAL FUND BUDGET TO THE DEVELOPMENT SERVICES DEPARTMENT’S FACILITIES MAINTENANCE LINE ITEM IN THE AMOUNT OF $32,200 TO REPAIR CIVIC CENTER MECHANICAL EQUIPMENT. Ms. Ghetti addressed the Council relative to this agenda item and said that similar to the previous item, staff believes this item is critical to the operation of the Town and T own Hall. She stated that Development Services Director Paul Mood is present to answer any questions about the specific project. She added that the amount of transfer being requested is $32,200. Mayor Schlum thanked Ms. Ghetti for her comments. There were no citizens wishing to speak on this agenda item. Councilmember Contino MOVED to approve the transfer of appropriation from the contingency expenditure line item within the Town Manager Division, Administration Department of the General Fund budget to the Development Services Department facilities maintenance line item in the amount of $32,200 to repair Town Civic Center mechanical equipment and Councilmember Elkie SECONDED the motion. Mr. Mood addressed the Council and provided detailed information relative to the proposed repairs and justification for making the repairs as soon as possible. He said that staff will obtain a minimum of three quotes to ensure that they receive the best price possible (including quotes from any local suppliers). The motion CARRIED UNANIMOUSLY (7-0). AGENDA ITEM #9 – DISCUSSION, CONSIDERATION AND POSSIBLE DIRECTION TO STAFF RELATING TO THE FEBRUARY 17, 2011 AGENDA ITEM 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, WHICH WAS CONTINUED TO THE WORK STUDY SESSION, HELD ON MARCH 8, 2011, AT WHICH NO ACTION WAS TAKEN. THE DISCUSSION MAY INCLUDE, BUT IS NOT LIMITED TO, THE RECENT ARIZONA ATTORNEY GENERAL’S REPORT DATED FEBRUARY 1, 2011. Mayor Schlum stated that this is a continuation of prior discussions and asked if any member o f the Council would like to speak on this item. Councilmember Elkie said that he thinks it is important to note that there was a motion and a second from the February 17th meeting to terminate the services of Gust-Rosenfeld, P.L.C. as Town Attorney for the Town of Fountain Hills. He added that it was continued to a Work Study Session but that motion is still on the table. He asked Town Attorney Andrew McGuire if he was correct in what he stated. Mr. McGuire advised that they could continue it that way -- just from the motion -- or restate the motion, either way is fine. Councilmember Elkie stressed the importance of recapping some of the discussion that took place on February 17th and March 8th. He said that this relates to the performance of Mr. McGuire, one of three appointed persons within the Town, and he thinks it is important before they move forward to have Mr. McGuire's consent to discuss issues relating to his performance in public. He stated that he believes Mr. McGuire previously made a statement to that effect (his preference z:\council packets\2011\r4-7-11\110317mr.docx Page 7 of 20 was to have the discussion out in the open) but said he wanted to make sure since the discussion will relate to Mr. McGuire's specific performance as the Town Attorney. Mr. McGuire advised that he would be more than happy to restate what he said at the Work Study Session. He stated that if the discussion was agendized as an Executive Session agenda item, he would exercise the right to have the discussion held in public and that has been his clear preference all along (he would like any discussion on this matter to take place in public so that there will not be any questions about what was discussed -- anything having to do with legal services). Councilmember Elkie recapped the previous occurrences/discussions that occurred from his perspective and noted that a complaint had been filed by a Councilmember against another Councilmember last summer. The Town Attorney received a call late last year from the Assistant Attorney General's Office who informed him of the ongoin g investigation (inquiry about an Executive Session violation). He said that Mr. McGuire has stated that the discussion lasted about twenty minutes and the Assistant Attorney General requested copies of Executive Session minutes for the meeting that was t he subject of the original complaint. Following that, as has been stated, Mr. McGuire did not inform Council or staff about the inquiry from the Assistant Attorney General (no communication took place with the Council or staff about this complaint, which carries potential ramifications, including criminal charges, removal from office, and sanctioning, which was voted upon and approved by the Council at the February 17th meeting). He added that sanctioning might be too strong a word but the Council accepted the report and penalty, which included an Open Meeting Law or Executive Session class. Councilmember Elkie further stated that through the discussions, because Mr. McGuire did not inform the Council of the complaint, there was a final finding that was issued by the Assistant Attorney General on February 1, 2011 that the Council had discussed matters relating to personnel that they shouldn't have discussed and as a result, Council, if they accepted the finding and the remedy, would have to do some Open Meeting Law training. He said that the issue he took with the way this matter was handled, as stated during both previous discussions, was that they weren't informed. He stated that as the Town Attorney who represents the public body of the Town, not only in all legal matters but also in all matters related to public relations, he should do his utmost to protect the Council and the Town in any way possible. He advised that in his opinion, and the reason why he moved to terminate the services of Gust -Rosenfeld, Mr. McGuire's performance as Town Attorney fell far short of what it should have been. The fact that he didn't receive a formal complaint is a moot issue -- if a phone call is received from the Assistant Attorney General saying she was investigating a potential Executive Session violation of the Council it is extremely important that after you get off the phone with that Assistant Attorney General, you inform the Council and let them know that this is something that could be coming down the road. Councilmember Elkie stated that the only explanation that the Council received was that Mr. McGuire was waiting for a more formal complaint from the Assistant Attorney General's Office and therefore did not communicate with the Council. The fact that the Council received this complaint on February 1, 2011 (the letter, the finding and recommended action to be taken by the Council) meant that this item had to be agendized at the next Regular Council meeting (a condition) to discuss and vote on it only two weeks later. He said he believes this was a disservice to the Council and the Town, which is why he moved to terminate the services of the Town Attorney. He invited other Councilmembers to comment on this matter. Councilmember Hansen said she did have a clarification -- she went through the last six months of billing since they were having discussion on whether they wanted to continue contracting out legal services or look at having it in-house -- and as she reviewed the statements, which show what the Attorney spends his time on, it disturbed her to find out that it appears Mr. McGuire was contacted by the Attorney General's Office back in August and had a subsequent meeting with the Town Manager. She stated that she was upset that the Council was not infor med especially since it appears that the contact was made in August -- so the Town knew about this, knew that they were proceeding with this -- and she finds that disturbing. She added that this indicates that the Town had been alerted months in advance. Councilmember Elkie noted that Mr. McGuire has stated a number of times that he was advised "late last year" and whether August is considered "late last year" is subject to debate but the fact that there is a billing statement indicating that he informed the Town Manager of this and it didn't go any further than the Town Manager that is a concern (important enough to communicate with Town Manager but not important enough to communicate with the Council). The information was not communicated by either of the two gentlemen and he would like an explanation. z:\council packets\2011\r4-7-11\110317mr.docx Page 8 of 20 Town Attorney Andrew McGuire advised that at the time the original complaint was lodged, and he was informed by Councilmember Dickey that this would be lodged; he was told that everyone had been informed. Later on he found out that Vice Mayor Contino was not made aware of this but the other Councilmembers were told. Upon the Attorney General's first contact with him in his mind it was very clear that all of the Councilmembers knew that this was underway -- first it was a telephone call, not an inquiry or any kind of formal notice. He was asked to send copies of the Executive Session minutes and explain the purpose of that meeting. He stated that Town Manager Rick Davis literally walked into the office as he was finishing up with that telephone call and was the only one on the dais here except the Town Clerk who he was aware was unaware at the time. He reiterated that had he known that the one call was all they were going to get from the Attorney General's Office rather than a more formal written complaint of course he would have informed the Council. He had told them that he talked with the Office late last year, August, etc. is really immaterial -- what is material is that they had an informal communication that at the time he didn't believe communicated anything that all of the Council didn't already know. He added that knowing what he knows now of course he would have made the call but it is easy to say that with 20/20 judgment and hard to make at the time of the complaint. He said that of course this will change future behavior but at the time of the call with the Assistant Attorney General and still today he thinks that the opinion they rendered was rendered incompletely and they don't agree with it but that's not the position they are taking in terms of moving forward. He was informed by the Assistant Attorney General that no matter what the results of the investigation turned out to be, the penalty was still going to be the same and so it seemed to be an inefficient use of resources to continue on and provide more information subjecting citizens involved in the complaint to interviews as well as Town staff (since it would have the same end result). Councilmember Dickey commented that Councilmember Elkie had stated in his recap that one Councilmember made a complaint and clarified that there were two -- she and Mike Archambault. They made the complaint when it was brought to their attention that there had been a breach and, as she said before, she regrets not telling Vice Mayor Contino, but everyone did know in May that she had done that because she wanted to get that to the Attorney General's Office -- she wanted an investigation to take place and then she never heard back so she thought that they were not going to do anything and dropped it. At the time it was happening, she was concerned that there were going to be others who were going to point their fingers at the breach of the Executive Session. She added that she happen ed to believe that was the case so she thought she wasn't going to do this on her own and she was going to do what was proper, which she did (it was her right to do and she did it). She further stated that when she never heard anything she simply thought this was something that the Attorney General's Office did not feel had me rit and to this day she hasn't been informed of this as an individual nor has former Councilmember Archambault. She added that they didn't actually investigate the Executive Session aspect of it they decided "this is what we think and here's the remedy" -- that was why she was willing to accept it, because the remedy was the same, and that is really all it is. Councilmember Elkie asked Mr. McGuire if Councilmember Dickey had told him that she'd told all of the other Councilmembers that she'd filed a complaint and Mr. McGuire replied yes. Councilmember Elkie added that Mr. McGuire learned later that Vice Mayor Contino was not informed and Mr. McGuire advised that he learned that in February of this year. Councilmember Elkie said having been informed of th e complaint, he would like to know if Mr. McGuire felt it appropriate to rely on the Councilmembers to communicate this information or would it have been better for him to communicate with everyone to make sure that everyone is on the same page. Mr. McGuire stated that as he said before, if this had been an investigation similar to what typically happens -- the first phone call would have been just that followed by other phone calls and sometimes written inquiries and requests for more information. Had he known that this was going to be "one phone call and done" he would absolutely have communicated with the entire Council. He noted that the Arizona Attorney General's investigations, through their OMLET enforcement team, are not open to the public. The complaints are sealed and confidential and will not be released even if they are the subject of a public record's request -- they won't even be given to the investigated group. There are no opportunities for a hearing, only an opportunity to respond to what they are asked. Full disclosure in this case may not have resulted in anything different. Councilmember Elkie expressed the opinion that there is a difference between assuming or being told that all of the Councilmembers were informed of this complaint (and not everybody was) and not telling everyone that you were contacted by the Assistant Attorney General's Office about this investigation and the information that was requested, i.e., Executive Session minutes. He said he would also like to hear from the Town Manager as to when there was this communication between him and Mr. McGuire and he (Town Manager) was made aware of the issue and there was a request for the minutes, where was the communication, where was the breakdown? z:\council packets\2011\r4-7-11\110317mr.docx Page 9 of 20 Mr. Davis addressed the Council and said on the occasion he was made aware of the complaint he doesn't remember any details relative to the complaint or the investigation, only that such a complaint had been filed. He stated that it was not a long conversation and he doesn't remember any specifics regarding the investigation. He added that he also was not under the assumption that he had received any information that anyone else didn’t receive. He has never been part of such an investigation and thought that such information was readily available whether it be communicated at some time should it come to fruition. There was nothing at that time to indicate that this was anything of substance or would result in the February communication. It was largely forgotten at that point u ntil everyone else received notification and that is when he too became aware of the fact that the Attorney General's Office had actually addressed the issue. Mr. McGuire pointed out that at the time of communication the Open Meeting Law had nothing to do with the actual meeting itself -- it had to do with disclosures following that meeting. He reiterated that it is very easy to put 20/20 goggles on and find that there was something that could have been done differently but the state of mind at the time was that the complaint was not on that whole meeting. The Assistant Attorney General asked for the minutes and they discussed them and the content of them and Mr. McGuire explained to her that the same presentation that the Town Manager made in Executive Session to explain the restructuring was presented to the public at the next meeting -- there was nothing in any way clandestine about it -- the same information was provided to the public un-modified from one meeting to the next. He said it was important to keep that in mind (where they were in the process at that time). Councilmember Elkie stated that he is looking at the billing statements prepared by Mr. McG uire and he said that the subject was related to the Executive Session violation and the bill specifically states "Telephone call from C. Alarcon regarding and Open Meeting Law complaint with respect to meeting held to discuss reduction in force. Meeting with R. Davis regarding the same." He said that was different from what Mr. McGuire just stated in that it was regarding the Executive Session violation -- it was more broad than that -- and he said so in previous meetings that the 20-minute discussion that he had with her related to the topics and she wanted a copy of the Executive Session minutes. He added that Mr. McGuire knew at that time that it was much broader than this narrow Executive Session violation. Again, Mr. McGuire did not communicate to the Council that this was an on-going investigation -- that he had received a telephone call from the Assistant Attorney General and communicated that information to the Town Manager who did not communicate it to the Council either. He said he just doesn't understand why that seems to be okay. Mr. McGuire stated that he thinks he has been very clear each time this topic has come up that had they known at the time of that telephone call that it was one call and done, the communication would have been back to the Council. He reiterated that this was not consistent with previous experiences with the Attorney General's Office. He added that as far as what was discussed, his billing statement is accurate and very consistent with what he just said -- during that call she asked him for an explanation of what the Executive Session was about, why it was held, because the complaint was about things that were discussed in Executive Session that were then discussed out in public. She was trying to understand what was discussed in Executive Session and the context of what was discussed in public. Vice Mayor Contino stated that he doesn't care about processes or findings on other cases investigated by the Attorney General's Office -- this case he was involved in and it came back that it was about illegal open session meetings and expressed the opinion that Mr. McGuire should have informed the entire Council of that conversation back in August. He added that he doesn't have any faith or trust in Mr. McGuire for doing t hat along with Mr. Davis. He said that from August until February he kept that information from the Council and asked how many people in Town Hall knew about this. He noted that all of his colleagues knew about it but he didn't until he saw the letter that Mr. McGuire gave them in February. He asked Mr. McGuire what he was doing. Mr. McGuire responded that he was doing the Town's business and stated that because they have no ability to intervene in the investigation, no ability to even inquire about it other than asking about its status, (no ability to even see the complaint itself); there was nothing for them to do. He said that the initial conversation was not about the Executive Session itself, the initial complaint was about disclosures from that Executive Session out in public. He added that his entire discussion with the Assistant Attorney General was focused on the Executive Session content so that she could evaluate discussion of those items. Vice Mayor Contino expressed the opinion that Mr. McGuire held back and going back to his discussing this with the Town Manager, he wants to know how many people in Town Hall (staff) knew that this was going on. Mr. McGuire stated that he has no idea who the Councilmembers might have spoken with and discussed this issue with. z:\council packets\2011\r4-7-11\110317mr.docx Page 10 of 20 The Vice Mayor said that this goes back to Mr. McGuire and what he is doing -- and he is not informing the Council about what is going on. He added that he was the guy who was named in it and Mr. McGuire should have come to him and asked him about it. He asked why Mr. McGuire didn't come back to the Council and talk to them about the Open Meeting Law if there was nothing to hide. Mr. McGuire advised that as they discussed, when the original complaints came in he sent e -mails and contacted the Vice Mayor and asked questions but said he did not receive anything back from him. He added that there is absolutely no reason for him not to have disclosed this other than not understanding where it was going to go next in the Attorney General's Office. He noted that from August to February there were no further inquiries and it seemed that the item was not on the forefront. Councilmember Dickey said that again she is sorry that she didn't go to Vice Mayor Contino -- she did tell Councilmembers Hansen and Elkie. She said perhaps she shouldn't have assumed that they would have told the Vice Mayor so she regrets that she didn't have the courage to come to him herself. She added that it is not a big public thing, i t wasn't at all and that is what she wants Vice Mayor Contino to understand and nothing ever came of it, it was just a done deal. Vice Mayor Contino asked Councilmember Dickey why she did it in the first place and she replied that she was led to believe that were concerns, not only hers but others as well, that there had been a breach that put the Town at risk. She stated that she wanted to try and mitigate that and noted that for a period they were all on edge and worried about something that could damage the Town. She said that was a very risky time and when it went by and nothing happened, that was it. It's not like it was discussed in the paper or anything else. She has not heard one word since then. Vice Mayor Contino said he believes there was intent and he goes back to the Town Manager and the Town Attorney for not being responsible. He noted that they have 4 -3 votes all the time and don't communicate and this goes back to the leadership and Mr. Davis is part of that and Mr. McGuire is the Attorney. He stated that at this particular time he can't trust either one of them and advised that as Mr. Davis knows, Councilmember Hansen and he decided to have their meetings one on one with him together so they could get the stories straight -- they kept getting different stories. He added that this is something that goes back to Mr. McGuire trying to help them and this Town and he has no faith and trust in either one of them. Discussion ensued relative to Councilmember Elkie's statement that when a Councilmember tells the Town Att orney that a complaint has been filed against another Councilmember, he believes it is the Town Attorney's responsibility to communicate that to the Town Manager, which apparently happened, and for them to communicate that to the Mayor and Council; his opinion that the fact that a Councilmember said she told everyone is irrelevant; it is not the Councilmembers' responsibility to convey information of that nature to other Councilmembers; the fact that he kept the information to himself because he did not feel it was his responsibility to communicate that to anyone; his belief that if someone files a complaint, that complaint should be thoroughly investigated and any one of them that does something wrong should be held accountable; his opinion that Mr. McGuire is downplaying the fact that he didn't tell the Councilmembers that the Attorney General's Office had called him and his excuse of waiting for a formal complaint to be filed is unacceptable; as an attorney, Councilmember Elkie would not wait for a complai nt to be filed -- as soon as he is notified of a complaint he informs his clients and believes that should have been done; he questioned whether if they had known they could have done something prior to the findings being sent to the Council; the Council had no opportunity to "circle the wagons" and communicate in an Executive Session about this and that is the issue that he has; and if a communication is received from the Assistant Attorney General's Office that could have the result of removing a member o f Council, then it must be communicated immediately, not wait for a formal complaint to be received. Councilmember Elkie asked Mr. McGuire if he receive s a call from the Attorney General's office on another issue, is he going to communicate that with the Council and Mr. McGuire reiterated that if he knew then what he knows now of course he would. He emphasized that attorneys need to be aware of the client -- his client is the corporate entity of Fountain Hills, not an individual Councilmember, he does not represent any one of them individually. At the time the complaint was filed and he learned about it, it did not affect the corporate entity; it was a complaint against a single member of the Council for which a corporate entity cannot even provide a defense unless the entire Council votes to do so in a public setting. z:\council packets\2011\r4-7-11\110317mr.docx Page 11 of 20 Councilmember Dickey commented that she believes at a previous meeting Mr. McGuire stated that they could not have "circled the wagons" because there was no action that could have been taken (the Assistant Attorney General was still asking questions). Mr. McGuire confirmed that he did make that statement because they were not allowed to even see the complaint (and still would not be allowed to see the complaint). He added that the Attorney General's Office was gracious enough to allow people to place telephone calls but in the end their investigation is based on the information they asked for, received and reviewed. In this case it is clear that as soon as the Executive Session minutes were received, that's all the Assistant Attorney General was looking for. Councilmember Brown said that his position has not changed and he believes they have identified a situation with Mr. McGuire that he possibly could have done differently but didn't. He added that Mr. McGuire has been a good attorney for the Town for many years and he doesn't believe they should be having a discussion about firing him. He stated the opinion that Mr. McGuire has not harmed the Council or the Town and has admitted that if he were to do it again he would do it differently. He said they have never had a complaint filed before and it is possibly new to all of them. He noted that Councilmember Dickey has apologized to Vice Mayor Contino and added that he believes they have taken one small bit of the Town's problems and they are trying to crucify the Town Attorney over it and if he is wrong then the Town Manager is wrong as well. He expressed the opinion that they are clearly off base going down the road and discussing firing the Town Attorney. He advised that he understands everything that is being said but does not believe it is at the level of firing or replacing a Town Attorney. He noted that the one who needed to be fired because that was who caused all the trouble was fired. He stated that Mr. McGuire has been a good attorney; he has explained himself so they need to back off of this because they have bigger problems in this Town than this. He urged everyone to take a deep breath and step back. He noted that they could have continued the investigation and didn't because this Town h as bigger problems to deal with, like the financial situation, and they need to be moving the Town forward. He encouraged them all to come together. Vice Mayor Contino commented that Councilmember Brown made some good points but pointed out that the comp laint was filed against him and he is going to go down to the Attorney General's Office and file again and find out what the complaint was, who made it and what is going on. He said that his name is still out there and has not been cleared. He stated that they should all go down there, open this whole thing up and get it over with. He reiterated that his level of trust in the Town Attorney and the Town Manager is zero. Mayor Schlum stated that the Council has some work to do on relationships and asked Mr. McGuire to confirm that the Assistant Attorney General did not feel that there was anything to warrant further investigation. He added that it is certainly the Vice Mayor's prerogative to pursue this matter but he believes that was the determination. Mr. McGuire explained that the Attorney General's opinion is based on an old case that essentially says if information is not supposed to be discussed in Executive Session, the disclosure of that information in public is not a violation of the Open Meeting Law. That is why the investigation truncated where it did. The only fu rther investigation he would imagine would be to separate out what information was in the Executive Session that was discussed that shouldn't have been. One of the things highlighted in the letter was the Town Manager's presentation that was made the following week in public and what was actually legal advice. The Assistant Attorney General did not do any investigation to find out if there were pieces of what was disclosed that would have been legal advice properly in the Executive Session and then would that actually have been a violation -- that is the only thing that has been left undone in this investigation. Vice Mayor Contino said in reading the letter, the Assistant Attorney General was the head of the Open Meeting Law Enforcement Team (OMLET) and in reading further into this, this is what she does -- Open Meeting Law complaints. Ms. Alarcon only handles that portion so she was not interested in the second part of this complai nt. He stated the opinion that they need to clear the record, open this up and get all the cards on the table and if they can't do that then they are hiding something. Mr. McGuire clarified that no one in the Attorney General's Office is not assigned 100% to Open Meeting Law violations. The Open Meeting Law Enforcement Team is a second duty that is imposed upon the group of attorneys in the Attorney General's Office that otherwise have responsibilities that involve agencies or boards, ADOT, etc. He added that Open Meeting Law enforcement is something they do as time permits, which explains the length of this investigation. He noted that it has not always been that way; there have been times when that Office had more people and could dedicate people to carrying out this role. z:\council packets\2011\r4-7-11\110317mr.docx Page 12 of 20 Ms. Bender advised that there were no citizens wishing to speak on this item. Councilmember Dickey asked whether Executive Sessions are part of the Open Meeting Law and Mr. McGuire replied that the Executive Session provisions are exceptions to the Open Meeting Law. He said it is a carve out to the Open Meeting Law. Councilmember Dickey asked if the person who would look into either one of the complaints would be the same and Mr. McGuire advised that the OMLET group handles all aspects of the Open Meeting Law. Councilmember Dickey noted that the first letter stated that the Assistant Attorney General "could not conclude that a specific Town Councilmember violated the Open Meeting Law" and then in the letter from March 4th, which was in response to a letter that some Councilmembers had sent to her , she said "the purpose of the report dated February 1st was to propose a settlement offer to resolve the pending investigation." She said she thinks that covers both if they are willin g to accept that. She added that she is ready to accept that part as an answer to the original investigation and that seems to be a way to close the door on it. Vice Mayor Contino stated that he does not think so. Councilmember Elkie said he wanted to go back to a question he asked Mr. McGuire before that he doesn't think he got an answer to but before that Mr. McGuire made a point of saying he doesn't represent any one Councilmember and he doesn't disagree with that assessment, however, he is responsible if individually Councilmembers or collectively, if there is a Regular Session Open Meeting Law violation of a Regular agenda meeting, Executive Session meeting, a Work Study Session meeting and there is an investigation, there is a duty for the Town Attor ney to communicate that investigation to the Town Manager and to Council. He added that that is really the thrust of his major complaint -- there wasn't that communication. He said he still hasn't gotten an answer to if there is a call tomorrow, if someone in the community complained and said there was an Open Meeting Law violation, and the Assistant Attorney General called and said a complaint has been filed, please provide me with these minutes, please provide me with some information as I am conducting the investigation, will the Town Attorney communicate that call to the Council. He stated that if the answer to that is still no, then he has a real big problem with that because he doesn't think it is the Town Attorney's prerogative to wait for a complaint to be filed. He added that he should communicate with the Council about any investigation and if the Town Attorney is not going to communicate that to the whole Council he has a real problem with that. Mr. McGuire commented that he is befuddled at how this question has not been answered because he answered it very clearly that yes, he would communicate, and he would make the call. He said that he has reiterated that numerous times. Councilmember Elkie noted that what Mr. McGuire has said is "if I knew then what I know now about this one and done then he would have notified the Council." He stated that it has been qualified and has not been a specific yes answer. Mayor Schlum expressed the opinion that it is pretty clear as far as communication that it was a pretty unique call from an Attorney General's Office and it is pretty much a foregone conclusion going forward that the Council wants to be communicated with regarding all cases in general that relate to legal services. Councilmember Hansen said she believes one of the issues is not just the fact that they weren't notified it is also that they went into an Executive Session that they shouldn't have gone into in the first place. She added that that is another piece o f the puzzle -- the comfort call with some of the judgments that are being made. As a body they are looking at this whole situation from different standpoints and to some it was a bigger deal than it was to others. When Councilmember Dickey read from the March 4th letter, the next sentence after that about the settlement offer was “That since the majority of the Councilmembers voted, signed and approved the report and proposed remedy, our office considers the matter resolved." She stated that to her it is not really saying that the matter was resolved because she thinks there were lingering questions that were not answered. She added that because the majority of the Council approved the settlement, that is why it was resolved. She said that kind of falls into some of the legal ad vice that they might be questioning and she still goes back to the Work Study Session and she was the one who had issues with the way the agenda language was written. She sees some inconsistencies going back to January when they had the Summit and they ha d a lot of consternation about the wording of the agenda because there was a desire to have a lot of discussion go on with the people who attended but if there was going to be a quorum of the Council they needed to be very specific so the public would know what was going to be discussed. z:\council packets\2011\r4-7-11\110317mr.docx Page 13 of 20 Councilmember Hansen further stated that when they went into the Work Study Session it seemed to be just the opposite and they were going for very broad language so that anything could be discussed. She added that they got into assumptions and sometimes assumptions get people into trouble. So in addition to what Councilmember Elkie has said about not being notified, she wanted to throw in a broader perspective -- there were some other issues involved. Councilmember Leger stated that he certainly respects everyone's opinion in this matter and he won't place judgment on Vice Mayor Contino, Councilmember Elkie or Councilmember Hansen's confidence in the Town Attorney. He respects their views and believes they articulated their reasons for lack of trust in this particular issue. He noted that when discussion first surfaced on this issue a resident asked what a Town Attorney does and he recommended that the person sit down and ask the Town Attorney that question. He doesn't believe that meeting took place but what he would like to say publicly regarding the Town Attorney is the following: If one was to look at the Town's agreement for legal services, this is a sample of what he carries out -- drafting ordinances and resolutions, drafting and negotiating contracts and agreements, reviewing agendas and minutes, attending meetings of the Town Council and meetings of other boards and commissions, coordinating with Town staff a review of documents prepared in-house, representing the Town before administrative boards and local courts, providing general legal advice and counsel in all areas such as election law, property law, planning and zoning, code enforcement, contract law, public bidding and contracts, personnel, improvement districts, litigation, development agreements, intergovernmental agreements, cable and franchise law, wireless telecommunication law, employee benefits, general State municipal law and Federal law -- and other things that could be added to that. Councilmember Leger advised that he went through that long list simply to state, and once again he understands the dissatisfaction that has been expressed regarding the Town Attorney's performance, but his evaluation of any employee (whether contract or full time) goes to a sum total of their competency based on the total of what their performance is, everything. He added that over the last five years that has been his thought process and that is how he is viewing this particular situation. He asked whether it would have been best if the Council had been communicated with then hopefully as stated it will occur the next time they face such a situation. He said that with respect to the whole dialogue on communication he would like to point out that as elected officials, and he will take responsibility for this, communication is a two-way process. He stated that when he found out that this matter had been brought before the Attorney General's Office he called the Town Attorney and requested that he educate him on the matter as he has over the last five years every time there has been a legal question. He added that throughout the months when he bumped into him he would ask the same question so he was as surprised as anyone with what happened. He said it was his understanding that there would be a more thorough investigation and he will take responsibility for that. He reiterated that he looks at employees' sum total performance -- not only how they perform their job but also their professionalism, his relationship wit h them and their responsiveness. Councilmember Leger stated that he knows a lot of lawyers and, like baseball players, there are a few that bat 1,000 so that is where he is coming from. Again, he acknowledges some missteps, that have been admitted, and he assures them that should this happen in the future the Council will probably hear more from their attorney than they care to. He asked everyone to take to heart the list that he reviewed because in his five years on Council he has witnessed performanc e around just about every one of these issues and although it was not flawless execution but it was more than satisfactory from his perspective. Mayor Schlum reiterated that there is a motion from a previous meeting on the table and a second (to ask the Town Manager in essence to send a letter to terminate Gust-Rosenfeld). The motion FAILED by majority vote (4-3), with Vice Mayor Contino and Councilmembers Hansen and Elkie voting Aye. AGENDA ITEM #10 – DISCUSSION, CONSIDERATION AND POSSIBLE ACTION RELATING TO REVIEW OF ALL ASPECTS OF TOWN LEGAL SERVICES AND POSSIBLE ALTERNATIVES. Town Manager Rick Davis addressed the Council relative to this agenda item and reviewed a PowerPoint presentation dealing with Exploration of Town Legal Services (a complete copy is available in the office of the Town Clerk). He said that staff received direction from the Council to provide an objective analysis of recent legal services and vi able options and reviewed the following: z:\council packets\2011\r4-7-11\110317mr.docx Page 14 of 20 * Town Attorney expenses * 2008-09 Town Attorney Costs by Category * 2009-10 Town Attorney Costs by Category * A survey of six comparably sized communities ($10 per citizen per year not including outside legal services (none to date for this year). * Per Capita Town Attorney expenses * Alternatives: Create an internal legal function or continue contracting with outside firm * In -house Legal Division costs * In -House Legal Division Pros and Cons * Outsourcing Pros and Cons Mayor Schlum thanked Mr. Davis for his presentation. Mr. Davis indicated his willingness to respond to questions from the Council. Mayor Schlum stated that they discussed the different costs in-depth at the Work Study Session and said that he welcomes discussion on this item. Ms. Bender advised that one citizen wished to address the Council relative to this issue. Linda Bordow addressed the Council and stated that she found it interesting that both the Town Manager and the Town Attorney independently make more money than everyone on the Council put together so some of the information presented pointed to the positives of going to a single attorney firm rather than just a large firm. She said that she is sure that Gust-Rosenfeld is not the only firm that could provide such a broad base of attorneys to pull from. She added that she was the person Councilmember Leger referred to when he said a citizen inquired about the Town Attorney's duties and clarified that she raised points and expressed her theories on what could have possibly happened including the fact that she did feel it was the Town Attorney's fiduciary responsibility to tell the Town Council that there was an investigation. She said that Councilmember Leger said that wasn't really wha t he was supposed to do because everyone knew and she then sarcastically asked what he does do -- she wasn't actually asking to meet with the Town Attorney to find that out because it is all on line. Ms. Bordow stated that she is torn on the issue at hand because she sees the value in having just one Town Attorney since then the time would not be divided but she does see value in having a broad base to choose from in terms of the various issues that the Town faces. She added that the firm's rate is currently negotiated at $300 per hour and stated the opinion that the Town Manager's graph "low balled" and "high balled." She said that in terms of Mr. McGuire's firm, it is not just that this Open Meeting law violation happened, it's just bad legal advice being given by the Town Attorney and Mr. Davis (on the RFP process she knows the Town is being sued) and a host of other items where perhaps not the best advice was given by the Town Attorney. She stated that she appreciates that in hindsight it is 20/20 but you would think that would be a standard procedure (to report an action from the Attorney General's Office immediately). Mayor Schlum thanked Ms. Bordow for her comments and said he was sure they would cover all of her points since the Council is having a very broad discussion on this. He asked Mr. McGuire if he would like to speak to anything that was said during the Call to the Public. Mr. McGuire clarified that the rate charged by any attorney working for the Town is capped at $210 per hour regardless of what any attorney's regular rate is. During the recent referendum challenge, Dave Pennartz, an elections expert from his firm, represented the Town and although his typical hourly rate is $365, the Town was only charged $210 per hour. The Mayor asked Mr. McGuire to speak to how the Town is served from a legal aspect by his firm regardless of the various issues that might come forward. He noted that Mr. McGuire is not the only attorney that serves the Town. Mr. McGuire advised that he handles all of the primary duties as the Town Attorney but obviously along the way things will occur that are out of his area of expertise (they can be simple things like the Town's protected trademark, the Town was offered a piece of property as a donation and that parcel had to have an environmental study done to make sure there wasn't anything wrong with it before the Town took it over and this was done with the guiding expertise of the firm's environmental lawyers, elections and having Mr. Pennartz able to do that at a moment's notice, whenever the Town is z:\council packets\2011\r4-7-11\110317mr.docx Page 15 of 20 involved in financial issues, the Town's Bond Counsel is two doors down from him) and noted that there are many other factors involved and benefits that the Town receives. Mayor Schlum said as far as having an in-house attorney versus the way they have been served since becoming a Town, having an in-house attorney does not mean that the Town would not have to hire other outside to counsel to assist in situations that arise and the rates charged would most likely be higher than what the Town is charged by Mr. McGuire's firm. Mr. McGuire stated that the graph provided by Mr. Davis was very telling and noted that prior to joining the firm he is with currently with six years ago, there was a need for outside counsel because he worked in a two-lawyer organization. He stressed the importance of being able to obtain expert advice in various legal areas. He noted that once he joined Gust- Rosenfeld the Town then had the ability, at a negotiated lower rate, to take advantage of the legal expertise of all members of that firm. He added that some of the things that the Town does not ever see on their bills, unless it becomes a lot of hours and would be unfair to other municipalities if they are carrying the burden, are things like all of the time he spent on behalf of Avondale and other communities to work with the League of Arizona Cities & Towns working group as they move a very important piece of legislation forward with respect to development fees and also a meeting he a ttended at the Governor's office, which the Town will not be charged for (someone else will). He noted that Fountain Hills gets the benefit, with just about every legislative issue, of other communities that have legislative liaisons down at the Capitol a ll the time. He said that he and his firm are able to provide the Town current information and stay on top of the legislative process. He added that that experience also comes along with the ticket. Councilmember Dickey referred to the slide that talked about the Cons related to Outsourcing. She stated that there are two bullet points but they are both really the same -- one says "costs will always be subject to the volatility and complexity of issues" and the other says "very difficult to control the annual budget," which is really the same thing. She noted that that would not change with an in-house attorney because the attorney would still have to obtain expert advice from attorneys in other areas of law. She added that volatility and complexity of issues are the same thing so she does not see that as a "Con" for outsourcing any more than it would be if they had someone in-house. She stressed the importance of looking at this from a budget and cost point of view. She also discussed issues going on at the Legislature and said it is always about what problem they are trying to solve. Mayor Schlum commented that they talked a lot about costs in the Work Study Session and he believes they all concede d that it is less expensive to do what they are doing than it would be to have an in-house attorney but beyond that there are other items that he hopes they can talk about tonight. He added that then they can perhaps talk about a process for moving forward with legal services. He said like the Town Manager and the Judge, the Council makes the decision on who staffs those positions. He stated that a lot of discussion could happen on the issue of communication between the Council and the Town Attorney (how they want to be served, what they are sensitive to, etc.) and he thinks to some extent over the last couple of years they have tempered their conversations with the Town Attorney because they didn't want costs to increase. He noted that this has been effective. He asked if there was a process that they might want to move forward with to measure and respectfully evaluate how the Town is being served through the contract with Gust-Rosenfeld. He added that if these are items that the Council would feel more comfortable talking about one-on-one that is fine but if there are things they want to talk about tonight related to having a process and measuring things, like communication, he welcomes that. He asked how they work together to make things better and said discussion should occur about service levels -- are there things they want their Town Attorney to do to better (there are things he does that the Town doesn't get charged for and other things that they do). He asked as a Council how they get their arms around the process relating to the Town Attorney in a professional, respectful manner. He added that the Town has worked with Mr. McGuire for nine years and, as outlined by Councilmember Leger, it has worked fairly well and he wants to make sure they have a process in place to move forward. Councilmember Hansen advised that it has been really helpful going through the last six months of billing to get an idea of the kinds of things the Town is paying for and she thinks it is a good exercise to address what the Mayor spoke about. It really points out that trying to compare it to an in -house contract is like comparing apples and oranges because if you look at the past six months and add up all the hours they would really have to look at how many hours were spent doing legal work for the Town for the dollar amount as compared to someone they would have in-house for eight to ten hours a day. For the money spent on an in-house attorney they would be getting a lot more hours which would have the potential to accomplish a lot more things. Some of the things Mr. McGuire mentioned were things they receive the benefit of now without paying for them. The might have to pay for them but they might get a bigger bang for the buck. z:\council packets\2011\r4-7-11\110317mr.docx Page 16 of 20 Councilmember Hansen pointed out that travel to and from Town is listed in the billing and said that when Mr. McGuire is present for a meeting day and starts early and sometimes works late, the Town, for example, was billed for one 17-hour day at $3,633.00 for that one day. She said that figure would be higher than for someone who comes and sits in the office all day. She commented on the diagram that showed the various cities and towns that have in-house attorneys and said it is hard to compare because they are paying more for it but they would really need to know what that attorney is doing on a daily basis. She stated that with the contract there are some days with no billable hours like during the summer so she thinks they have to look at this in more ways than it was presented to keep in perspective the differences in the dollar amounts. Mayor Schlum agreed with Councilmember Hansen's comments and said that it is challenging to do a comparison when talking town to town -- it depends on a lot of factors. He added that he doesn't hear Councilmember Hansen saying it would be a lot less expensive to have an in-house attorney and that is not the only point of course. He said that a benefit of a contract service in relation to costs is that they pay for what they use and they are not payi ng for someone to be there when they are really not needed. Councilmember Hansen commented that it might be helpful to talk to other towns and find out what their attorneys really do and about the level of service they receive. Mayor Schlum stated that that is one of the things they want to capture and it is part of a process to evaluate how the Town wants to be served by a legal entity. He asked how they take what Councilmember Hansen has stated and turn it into a process to consider legal services. Councilmember Hansen said that she would like to explore a little bit more and look at, for example, right now for half a year's legal services the Town has been billed approximately $101,500. She would like to know how many hours that represents (what does that money equate to hourly). She would also like to know what some of the other communities that have in-house attorneys feel that service is bringing to the community because they are present every day. The Mayor stated that he thinks it would be important to determine how they want to be served -- what do they want the Town Attorney to do, how do they want him to communicate, etc. He added that perhaps there are sufficient staff resources to address what Councilmember Hansen spoke of as well. Councilmember Dickey stressed the importance of determining what the Council feels is missing if they feel something is missing. She indicated support for having a presentation on what the duties are that the Town Attorney carries out and stated the opinion that the Town has been remarkably well served. She said that a regular reporting schedule, similar to one that is conducted with the Town Prosecutor, might be beneficial to learn what occurs on a daily basis. She noted that the bottom line is lower at the current time and if they are getting what they need at that bottom line why change. She added that she would be interested in finding out what the money/billable hours equates to but ultimately it doesn't matter that much if they are getting served the way they want for less than they would have been charged. Councilmember Hansen stated that maybe they need to extend the discussion to members of staff as well because each one of them has legal needs and they might be able to provide some input as well as far as what would help them. Councilmember Elkie said that some good points have been made and noted that if they were to use Mr. McGuire at a rate of $210 an hour for 40 hours a week, 52 weeks a year (vacation, etc. not taken into consideration) it would cost about $436,000 a year. He added that they do have to compare apples to apples and oranges to oranges. He stated that Mr. Davis made some changes as far as the way in which staff communicates with Mr. McGuire and that has been very successful in lowering costs. He said that Mr. Davis should be commended for taking charge of that and getting the fees down. He said he has sensed that there is more that the staff and the Council would like to do but as a result of the pull back from communicating with legal to keep costs down they are not able to do things that they would like to do. He added that they could grow but they are not; they are holding back to keep costs down. He doesn't think they should be looking at it in the sense of keeping the costs down and keeping it static but rather how is that affecting staff and the different departments as well -- are they not doing as much as they could be because they are putting items that are less important on the back burner. Anytime they have to do a Request for Proposal (RFP), the Council cringes because of the associated costs. They cannot ignore the value of having an attorney down the hall that Council, Mr. Davis or staff can pop in to see and obtain information. Staff can call Mr. McGuire or send him an e-mail but because of the concern about the cost they hold back and don't do as much as they perhaps would like to do. z:\council packets\2011\r4-7-11\110317mr.docx Page 17 of 20 Councilmember Elkie stated that having someone in-house who is strictly dedicated to Fountain Hills could serve a number of purposes -- in-house training for staff, risk management issues, Council training on Open Meeting Law issues, and just general education. He would like to just walk down the hall like he does with Mr. Davis and be able to ask the Town Attorney a question. Those are the kinds of intangibles that an in-house attorney would bring to the table. It is not just about the bottom line and he thinks it is difficult to measure (and he thinks they put staff in a difficult position) wh at more could be done if the Town had in-house counsel. The Town Manager needs to find a way to communicate with staff and department heads and hopefully staff will be able to provide honest information in an anonymous way or not so that Mr. Davis can bring that information to the Council. They need that information or else they will continue to keep doing the baseline things because of costs and will not excel as a Town. In -house, even if it does cost a little bit more, he believes would be very beneficial for the Town. During litigation time, if they hire a high quality attorney, which he is sure they would, they are going to realize some cost savings as well because they are not on the clock whenever that attorney is working on something. Mayor Schlum noted that staff has done due diligence on this twice over the last two years and tonight they are looking at expenses and comparing apples to oranges, because that is what it is, and asked in light of budget constraints do they want staff to spend more time on this and do they think they can afford to spend more to bring on board an in-house counsel -- is there a desire on the part of the Council to pursue that? Councilmember Elkie commented that perhaps there are more questions to be asked and more contemplation needed. He asked if there was support for a motion to table this to some future Council meeting. He said he doesn't know procedurally if they have to select a specific date but move just to table this to a future date so they can perhaps think about this further. Mayor Schlum advised that they could always continue this and have another discussion but he thinks they are here and they have an opportunity because it has been agendized to talk about. He said he thinks their goal is to figure out a process to measure in a professional and respectful way how they want to be served legally -- do they want to change how they have been served since they became a Town, do they want to have an in-house attorney. He added that he doesn't think the in-house versus outside contract is entirely a discussion for tonight and he would like to hear more about any problems, how do they want to be served, how can they be more effective. He agrees that some of the takeaways would be for the Town Manager in particular to work with staff, as he has in the past, to talk about those areas. He added that he is not sure this is the time to ask Town staff what they want the Town Attorney to do because that is going to equate into dollar amounts, whether inside or outside counsel. They really end up paying for what they use and that is one benefit of having an outside attorney. They can always have further discussions even with staff on this but he wants to zone in on a process. He doesn't want to reinvent the whole wheel -- they have other communities in the near vicinity who utilize outside counsel and perhaps they could find out how those municipalities evaluate this process, what reports do they receive that would help Council determine what they would like to see occur differently than what is current ly being provided. Councilmember Dickey agreed with the Mayor and said she believes he is trying to get to a place where the Council feels that they obtain a lot of information, are communicated with and feel more comfortable with the way they evaluate -- even if they can't move forward with a big study right now on how much more time everyone need s. She said in light of the conversation they just had she believes the Mayor is trying to reconcile some of this and make it so the Council is comfortable going forward. Mayor Schlum stressed that communication is a priority but he doesn't know what other Councilmembers want to see so he needs some input. Councilmember Hansen suggested that they do what they did with the Strategic Plan and have a "Parking Lot" where everyone could bring forward their ideas on what could be done better. This would make it easier for staff to participate as well. She said that they had a good arrangement when Mr. Farrell was there and had an office at Town Hall but noted that it was still a contract arrangement. It ended up being the best of both worlds because basically he was at Town Hall almost every day and available but he still just charged a set rate per month and that kept the costs in check. That is something that they really have not thrown into the mix. Councilmember Hansen in response to a question from the Mayor confirmed that Mr. Farrell had charged a monthly flat rate but added that it was a long time ago. z:\council packets\2011\r4-7-11\110317mr.docx Page 18 of 20 Mayor Schlum noted that if a contract attorney is on-site they are going to wind up getting higher costs because it would be so convenient to access that person if they are not being charged a flat fee. Councilmember Leger commented that with respect to process he thinks that the Council first has to decide w hether they want to go in-house or outside and believes that should be the starting point. They need to make that decision as a Council and then look at ways of improving the whole process. For example, if they decided to stay in -house, Councilmember Dickey implied reconciliation and some of the things he would like to see if they stay in -house (in the current situation) include reviewing and refreshing their attorney agreement, conducting semi-annual performance reviews and reports, researching cost savings (input from staff), looking at efficiencies in how they do what they do, scope of work and breadth of knowledge. He believes the operative question is stick with contracting out of house or stay in -house and once they make that decision then they can go about improving the process. He added that philosophically they have differences here and everyone has expressed a good point of view and he sees the discussion becoming circular at some point in time until a decision is made. Once that occurs then they can figure out the best way to approach that. Discussion ensued relative to the fact that the legal agreement that they currently have with Gust -Rosenfeld could actually be like a job description (for an in-house attorney); that could be the Council's way of communicating how Council wants to be served; the Mayor's comment that in-house versus outside legal services is a budgetary item and some Councilmembers believe there are still unanswered questions regarding costs; the importance of starting to wor k on a process with the assistance of the Town Manager and Town Attorney regarding the scope of services or recommending a process after other communities have been surveyed and provided information; Councilmember Elkie's opinion that it is important that Mr. Davis prepare the report independently (Mr. McGuire and his firm have a vested interest in this and this comment is not meant in a derogatory way); his opinion that Mr. Davis should conduct his due diligence in an independent manner and present that information to the Council; the Mayor's comment that it may be prudent to obtain information from Mr. McGuire on items that he might be more specifically aware of and the Town Manager could state that the information was provided by Mr. McGuire; Councilmember Elkie's question as to if costs were not an issue would there be more interest in bringing legal services in-house (can they eliminate the issue with respect to costs or weigh the benefits that may justify costs because if there is some value there they should move towards that if not n ow then in the future), and Vice Mayor Contino's comment that communication is vital and he would like to see more trust and integrity (hard for him to accept right now until communication is improved). Mayor Schlum stated that discussions will take place with the Town Manager and others to see where they go from here as far as a process. He said he didn't want to have this hanging out there forever taking up a lot of people's time and not getting anywhere. He would like to make sure that they are effective with their time. The Mayor asked Mr. Davis what he has heard tonight and what he thinks the direction is or would he like the Mayor to take a first stab at that and then get Council input to make sure they are on the same track. Mr. Davis advised that he certainly thinks it is appropriate given the circumstances to look, as they have before, at how they are utilizing legal services. He said that Mr. McGuire was certainly integral in the Town's development of proposals over the last couple of years that helped eliminate some of the costs (consulting with him to see how that could be done) and certainly understanding the breadth of services that the Town currently enjoys and comparing that to what is contracted for in other communities. He added that understanding is critical in order to ensure accountability and how they utilize legal services (a valid question to pose to the communities). He stressed the importance of understanding best practices and then making a recommendation to the Council as the supervisors of legal services regarding what changes they can institute to gain perhaps a better understanding, more information and better communication as far as legal services. He said that many of the tracks that they follow as far as the Council's interaction with him would be helpful for Mr. McGuire and he has not been the beneficiary of the type of regular communication that Mr. Davis has with the Council. He added he is in-house and down the hall and that certainly does enhance and improve Counci l's ability to reach out and communicate with him. He stated that that requires more effort; Mr. McGuire is at Town Hall every other Thursday and perhaps they could set up time for the Councilmembers to come in and visit with him. Mr. Davis indicated his willingness to facilitate opening up that communication and providing the Councilmembers with more opportunities to interact with Mr. McGuire. He said that staff will look at ways to accomplish that. Mayor Schlum noted that several Councilmembers mentioned that if there is a little more information related to in-house legal service costs that might be helpful to obtain a better understanding. He encouraged Councilmember Elkie to provide input on this. z:\council packets\2011\r4-7-11\110317mr.docx Page 19 of 20 Councilmember Elkie said that it would be important to know some of the benefits of having someone in-house -- what would be gained (i.e. communication with department heads, additional projects, etc.). He noted that at the Work Study Session they talked about revising the Council Procedures and also the Town Code -- there are certain projects that they would like to get into. He added that having someone in-house where they are not so concerned about the cost should be discussed. He said that Mr. Davis has been with the Town for three years now and based on his experience in other towns that he has worked in, if cost was not an issue would he prefer someone in-house versus outside. Mr. Davis responded that he has made it clear to Mr. McGuire and everyone here that if he could have almost anything in- house that he could reach out and touch that would be great. He added that costs and efficiencies enter into this as well. Councilmember Leger commented that there are many ways of reaching out, communicating and staying in the loop -- they can walk down the hallway or they can pick up a phone. He said as stated earlier that he thinks they are going to have a circular discussion until they come to the conclusion of whether they want to be in-house or outside. He added that it sounds as though there is some research that can be done and more information gathered to help bring them closer to that point. Councilmember Dickey stated that she would agree because she is not at Town Hall physically often but she still can call Mr. McGuire when she needs something. She said they have to look at the Town and how it is being served. She added that having one person with one set of expertise as opposed to having a firm at their disposal should be considered because that is a benefit in itself. She stated that obtaining more information is always a good thing but they always know that it comes down to costs. She believes there is intrinsic value in having broad expertise. Mr. Davis said that there are pros and cons associated with both options and several factors have to be taken into consideration. Mayor Schlum stated that in summary he believes Mr. Davis wrapped things up pretty well but the Council did add a couple more things. He added that he thinks that Mr. McGuire has done a fine job serving the Town of Fountain Hills -- he has been responsive and available when he needed to talk with him and the Mayor said that he too tries to keep costs down. He does not believe that has hindered him in any way or kept him from making a good decision. He noted that ultimately Mr. McGuire will not be the Town's attorney -- he will retire or before that make another change -- and when the services with Mr. McGuire and Gust-Rosenfeld come to an end there will be another attorney at some point. Mr. McGuire has done a very good job -- he is not perfect but neither is he (the Mayor) -- and the next attorney will not be perfect either. He noted that Mr. McGuire has vast experience and value. He has saved the Town money as a result of his knowledge and associations. He added that Mr. McGuire is respected by others and the offering by Gust-Rosenfeld is a fair value for the community at a reasonable rate. He said he knows that Mr. McGuire works hard to save the Town dollars by utilizing other available assets and that is very much appreciated. He stated that he believes Mr. Davis summarized well the direction of the Council. Mayor Schlum requested that staff provide the Council with an update in the near future (next meeting) and then propose a date to have a more detailed discussion on the items once again. Councilmember Hansen asked if it would be safe to say that in looking through materials if the Councilmembers make some observations or have some suggestions/input, they should forward it on to Mr. Davis so that he can work on this (in an informal manner just to funnel it towards him). Mayor Schlum thanked Councilmember Hansen for her comment and agreed. Mr. Davis stated that for the compilation of this report that would be fine. AGENDA ITEM #11 – 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) directin g staff to conduct further research and report back to the Council. A. Councilmember Dickey noted that some members of the public spoke and they may need some answers on some of their questions/points. Mr. Davis indicated that staff will reach out to them. z:\council packets\2011\r4-7-11\110317mr.docx Page 20 of 20 AGENDA ITEM #12 – SUMMARY OF COUNCIL REQUESTS AND REPORT ON RECENT ACTIVITIES BY THE TOWN MANAGER. Mr. Davis advised that 95% of his time is being spent on the budget and more information will be coming to the Council in the near future. AGENDA ITEM #13 - ADJOURNMENT Vice Mayor Contino MOVED to adjourn the meeting and Councilmember Elkie SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). The meeting adjourned at 9:10 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 Executive and Regular Session held by the Town Council of Fountain Hills in the Town Hall Fountain Conference Room and the Council Chambers on the 17th day of March 2011. I further certify that the meeting was duly called and that a quorum was present. DATED this 7th day of April 2011. _____________________________ Bevelyn J. Bender, Town Clerk