THE CITY AND BOROUGH OF JUNEAU, ALASKA
Monday, July 8, 1996 - 7:00 PM
Assembly Chambers - Municipal Building
Meeting No. 96-26
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I. FLAG SALUTE
III. ROLL CALL
IV. APPROVAL OF MINUTES
1. 06/19/96 - Special Mtg. No. 96-24
SPECIAL ORDER OF BUSINESS:
V. MANAGER'S REQUEST FOR AGENDA CHANGES
VI. PUBLIC PARTICIPATION ON NON-AGENDA ITEMS. (Not to exceed a total of 20 minutes nor more than 5 minutes for any individual.)
VII. CONSENT AGENDA
The Consent Agenda includes routine items of business which may not require separate discussion. When the Mayor calls for public comment on the Consent Agenda, you may raise your hand and the Mayor will recognize you asking which item(s) you wish to have removed from the Consent Agenda for separate discussion and action. Following the removal of any item from the Consent Agenda, the Assembly votes on the remaining items in one motion. (Ordinances for introduction generally may not be removed from the Consent Agenda.)
All items that are removed from the Consent Agenda will follow the format of: Administrative or Committee Report, Public Hearing/Participation and Assembly Action.
A. Ordinances for Introduction:
1. Ordinance No. 96-26
An Ordinance Reestablishing the Juneau Parks System. Presented by the Manager.
This ordinance repeals a prior inconsistent ordinance and reestablishes the Juneau Parks System. The ordinance identifies numerous parcels for inclusion in the system and designates them as one of three types: Recreation Service Park, Natural Area Park, and Conservation Area.
The Parks and Recreation Advisory Committee, the Planning Commission, and the Assembly Committee of the Whole have reviewed and approved this list of lands as it appeared in the draft Parks and Recreation Comprehensive Plan. It is submitted in this separate form in order to provide a convenient and authoritative listing of lands that may be updated as necessary without amending the Parks and Recreation Comprehensive Plan.
I recommend that this ordinance be introduced and set for public hearing at the next regular meeting.
1. Resolution No. 1823
A Resolution Amending the Personnel Rules to Provide for Extensions of Probationary Periods and to Change the Procedures Applicable to a Decision to Deny Permanent Status to a Probationary Employee. Presented by the Manager.
This resolution amends the personnel rules to enhance the utility of the probationary period. Presently, the rules require that termination of a probationary employee be accompanied by a statement of the reason for the termination. Also, the rules do not provide for an extension of the probationary period. Together these policies produce a probationary system that affords management too little discretion to deal with probationary employees.
The probationary employment period should be viewed as an extension of the hiring process. Just as the city and borough may refuse to hire someone without stating a reason, it should be able to delay or decline permanent status without stating a reason. We are still accountable for employment actions based on improper reasons - age, race, sex, national origin, disability, etc. - but we should be able to quickly and decisively delay or deny permanent status to an employee who, after a probationary period on the job, proves to be unsuited for employment.
If the city and borough is to avoid becoming the employer of last resort, it must sometimes inform some of its new employees that the employment relationship is just not working out. So long as the employee had clear notice that this could happen, no fundamental unfairness has occurred.
The proposed probationary system is similar to that used by the state, which does not "terminate" probationary employees for a stated reason: it informs them that they have not successfully completed the probationary period and will not be granted permanent status.
I recommend that this resolution be adopted.
2. Resolution No. 1824
A Resolution Adopting the Juneau Parks and Recreation Plan. Presented by the Manager.
This resolution adopts the latest version of a plan formerly known as the "Parks and Recreation Comprehensive Plan". It provides for the orderly development of a parks and recreation land system.
The Juneau Parks and Recreation Plan has been recommended for approval by the Parks & Recreation Advisory Committee at its May 21, 1996 meeting, the Planning Commission at its May 28, 1996 meeting, and has been reviewed by the Assembly Committee of the Whole on April 29 and June 10, 1996.
I recommend that this resolution be adopted.
C. Bid Award:
1. Bid No. 96-426: Pearock
Bid No. 69-426 for Pearock was opened on June 11, 1996. The bid protest period closed at 4:30pm on June 12, 1996, with the following results:
Bidder Total Bid
Juneau Ready Mix $56,400
RSH Company 56,625
Channel Construction 68,500
The pearock will be used by the CBJ Streets Division as a winter traction aid. The contract has two optional renewal periods and can be renewed for FY97 & FY98 by mutual agreement.
I recommend award of this bid to Juneau Ready Mix as having the lowest responsive bid, for a total bid award of $56,400.
D. Transfer Request:
1. Transfer No. T-602: Transfers $60,000 from GO Bond Interest Income (CIP S100-93) to Dzantik'i Heeni Master Plan (CIP S454-61)
This will transfer $60,000 into a new CIP project, from interest earnings from the unspent portion of the original issue of school bonds for Dzantik'i Heeni Middle School. This project was approved by the Public Works & Facilities Committee at its May 28, 1996 meeting, and by the School Facilities Committee at its May 16, 1996 meeting.
The funds will be used for developing a master plan for the area surrounding Dzantik'i Heeni Middle School to identify lands to be set aside and developed for school programs and activities.
After the transfer is approved the funds available balances, budgets, and status for the projects will be as follows:
Transfer Status/ Unobligated Unobligated Total Project
Project Number/ Funds Available Funds Available Budget
Project Name Prior to Transfe After Transfer After Transfer Status
1989 Go Bond
Interest Income $650,237 $590,237 $590,237 on-going
Master Plan - 0- 60,000 60,000 new project
I recommend that this transfer be approved.
VIII. ORDINANCE FOR PUBLIC HEARING:
1. Ordinance No. 96-24
An Ordinance Amending the Sales Tax Code to Establish an Exemption for the Sale of Services Provided by Audiologists, Physical Therapists, Occupational Therapists, and Marital and Family Therapists. Presented by the Manager.
Administrative or Staff Report:
This ordinance establishes sales tax exemptions for the sale of services and supplies by several of the health care professions.
At its meeting of May 13, 1996, the Human Resources Committee recommended that the Assembly consider establishing a sales tax exemption for services provided by audiologists, physical therapists, occupational therapists, or marital and family therapists. This ordinance establishes the exemptions.
I recommend that this ordinance be adopted.
IX. UNFINISHED BUSINESS:
X. NEW BUSINESS:
1. Messerschmidt Appeal of Planning Commission Denial of Application for Variance (VR-19-96)
This matter is before the Assembly for a procedural decision. The case concerns the denial of a sideyard setback variance for a deck. This appeal follows upon an earlier appeal of a similar variance request. In VR-51-95 the Planning Commission denied a variance for the deck: the Messerschmidts appealed and at the pre-hearing conference it was decided that the parties would attempt settlement through a second variance request. That request was denied, the current appeal was then filed by the Messerschmidts, accepted by the Assembly, and assigned to Mr. Perkins.
At the pre-hearing conference counsel for the Planning Commission noted his review of the record showed that the Planning Commission, in the course of denying the second variance, had failed to adopt findings. A lack of findings is one of the grounds for reversal set out in the Appellate Code, and counsel felt that on the present state of the record, he simply had no case. Accordingly, he proposed that the matter be remanded to the Commission for the preparation of findings. Murray Walsh, representing the Messerschmidts, opposed remand, arguing that the Assembly had the authority to decide the variance itself, and should do so. Mr. Perkins advised the parties of his inclination to remand the matter to the Commission, but agreed that the issue is significant and should be decided by the Assembly en banc. He invited the parties to submit briefs which are now before the Assembly.
The appropriate action for the Assembly at this point is to pick from the following alternatives:
1. The Assembly could hear the variance request de novo. This could mean a complete evidentiary presentation, just like the Planning Commission does. Alternatively, as the Messerschmidts suggest, it could be limited to oral argument by representatives.
2. Send the case back to the Commission for the sole purpose of adopting findings.
3. Send the case back to the Commission for a new hearing.
4. Send the case back to the Commission for findings or a hearing, as the Commission may determine is best.
The positions of the parties are set out in the briefs included in your packet. As this is a quasi-judicial matter, the manager has no recommendation.
2. Auke Lake Neighborhood Association's Appeal of Parks & Recreation Director's Decision Granting a Commercial Permit to Southeast Alaska Hydrosports
On May 30, 1996 the Director of Parks and Recreation issued a permit to Southeast Alaska Hydrosports for the purpose of conducting commercial activities on public land. The permit authorized the holder to operate a business offering short-term rentals of "hydrobikes" - pedal-operated paddle boats - on Auke Lake. The hydrobikes would depart from and return to a rental station on the Auke Lake wayside, a highway turnout, parking area, and boat ramp under the land management of CBJ by agreement from the state Department of Natural Resources.
On June 19, Mr. Walt Weidner on behalf of the Auke Lake Neighborhood Association filed an appeal of the Director's decision. The appeal application was accompanied by a 6-page document setting forth the issues on appeal and various arguments in support of each issue. The document has been included in your packet even though it is not a notice of appeal as that term is used in the appellate code, which requires the appellant to file "a concise statement of the legal and factual errors in the decision that form the basis of the appeal."
The Assembly is the appeal agency for this appeal, and its actions throughout the appeal process are governed by CBJ 01.50, the Appellate Code. The Code requires that upon receiving an appeal, the Assembly, must first decide whether to accept or reject it. The standards applicable to this decision are set out at CBJ 01.50.030(e) (1) & (2):
(e) Action by Appeal Agency Upon Receipt of a Notice of Appeal.
(l) Within thirty days of receipt of a notice of appeal by the appeal agency, the appeal agency shall notify the appellant of the acceptance or rejection of the appeal and, if rejected, the reasons for the rejection.
(2) The notice of appeal shall be liberally construed in order to preserve the rights of the appellant. The appeal agency may reject the appeal for failure to comply with these rules or if the notice of appeal does not state grounds upon which any of the relief requested may be granted.
Staff recommends that the appeal be rejected because the appellate rules do not provide for an appeal from the Parks and Recreation Director to the Assembly. In particular, the appeal should be rejected for failure to comply with the appellate rules and because the notice of appeal does not state grounds upon which any of the relief requested may be granted. Your packet includes a memo from the attorney explaining this recommendation. Staff further recommends that the Assembly refer the appellant to the Manager for review of permit and code violations alleged in the notice of appeal.
If the Assembly determines to proceed with the appeal, it should decide the following procedural issues:
1. Will the Assembly accept the appeal?
2. Will the Assembly hear the appeal itself or assign to a hearing officer?
3. If the Assembly hears the appeal itself, will the Mayor preside, or will he designate a member as presiding officer?
This matter is before the Assembly sitting in its quasi-judicial capacity. Accordingly, members should avoid discussing the case outside the hearing process. With respect to this issue, the Appellate Code provides as follows:
Because this is an appeal, I have no recommendation on whether or how the Assembly should hear the appeal. After the Assembly has made its decisions on these issues, the Clerk will contact the parties and the presiding or hearing officer to notify them of the Assembly's decision and to arrange for a pre-hearing conference or other proceedings.
3. Mr. Richard Olson's Appeal of Chief of Police's Decision to Revoke Professional Driver's Permit
On June 21, 1996, the Chief of Police revoked a professional driver's permit issued to Mr. Richard Olson. On June 26, 1996, Mr. Olson appealed the Chief's decision to the Assembly.
The ordinance applicable to this proceeding is as follows:
The ordinance set out above does not require the formalities specified for appeals from the Planning Commission or other municipal agencies, nor has Mr. Olson requested any particular procedure. The clerk has contacted Mr. Olson, who has agreed to the following informal procedures.
1. The appeal will be heard as new business by the Assembly.
2. Mr Olson will be limited to ten minutes and may not present any witnesses. He may, however, present written statements from persons of his choosing. When Mr. Olson has completed his presentation, a representative from JPD may respond. Mr. Olson may then rebut in any time he has reserved for that purpose.
3. The Assembly will make a decision and direct the preparation of findings. The Assembly may recess into executive session to deliberate.
XI. ADMINISTRATIVE REPORTS ON NON-AGENDA ITEMS:
A. Manager's Report - Action Items:
1. Status of Negotiations of the Golf Course Project
The Lands Committee, at it's June 24, 1996 meeting, considered some policy issues regarding the Totem Creek, Inc. proposal:
Totem Creek, Inc. Board of Directors has changed to reflect considerable representation of Kake Tribal Corporation members on the board. The Lands Committee felt that the makeup of the board was not an interest to CBJ.
Totem Creek proposes to add housing as a component to the project. CBJ would offer to Totem Creek an option to purchase additional property at appraised value for housing. The purchase price would be set at the time the option is offered, after an appraisal of the property. The sale of additional property for housing is consistent with the initial request for proposals issued by CBJ.
Totem Creek will purchase property for the golf course at the price offered in the proposal of $2,500/acre; the price includes land and timber.
Totem Creek represents that with the assurances by the Assembly of approval of the above policy issues, it is prepared to invest the necessary capital to complete feasibility and design to show compliance with the conditions placed on the land sale by the Assembly (contained in Resolution 1811).
I recommend that the Assembly adopt the Lands Committee recommendation.
B. Manager's Report - Information Items:
1. Status of Vacant Positions: MIS Director, Personnel Director, and Health & Social Services Director
The Manager will provide an update at the meeting regarding the recruitment and selection of the administrative positions listed above.
C. Attorney's Report:
XII. MAYOR'S REPORT ON NON-AGENDA ITEMS
A. Revised Pending Items
B. Unappropriated Governmental Fund Balance
C. Assembly Contingency Fund Balance
XIII. COMMITTEE REPORTS ON NON-AGENDA ITEMS
A. Committee Reports:
1. Committee of the Whole
2. Finance Committee
3. Committee on Committees
4. Human Resources Committee
5. Lands and Resources Committee
6. Public Works and Facilities Committee
7. Assembly Strategic Policy Committee
a) Capital City Vision Project
B. Board Liaison Reports
XIV. ASSEMBLY COMMENTS AND QUESTIONS
XV. CONTINUATION OF PUBLIC PARTICIPATION ON NON-AGENDA ITEMS. (Not to exceed 5 minutes per person or 20 minutes total, whichever is less).
NOTE: Agenda packets are available for review at the Juneau Public Library, the Mendenhall Valley Library, and the Douglas Public Library. An audio tape containing the Assembly's agenda is available for review at all CBJ Libraries each Friday prior to the Assembly's Monday meeting.
ADA Accommodations Available Upon Request: Please telephone the Clerk's Office 48 hours prior to any meeting so arrangements can be made to have a sign language interpreter present. The Clerk's Office telephone number is 586-5278, TDD 586-5351.
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