Session 07-15 a Special Meeting of the Homer City Council was called to order on July 23, 2007 at 5:30 p.m. by Mayor James C. Hornaday at the Homer City Hall Council Chambers located at 491 E. Pioneer Avenue, Homer, Alaska, and opened with the Pledge of Allegiance.

PRESENT: COUNCILMEMBERS: HEIMBUCH, NOVAK, ROBERTS, SHADLE, STARK, WYTHE

STAFF: CITY MANAGER WREDE

CITY CLERK JOHNSON

CITY PLANNER MCKIBBEN

AGENDA APPROVAL

(Only those matters on the noticed agenda may be considered, pursuant to City Council’s Operating Manual, pg. 5)

The agenda was approved by consensus of the Council.

SPECIAL MEETING AGENDA

Board of Adjustment Hearing – Frank Griswold/Refuge Chapel Appeal

Mayor Hornaday related the appeal to the Board of Adjustment regarding Conditional Use Permit 07-03 issued to Refuge Chapel. Appellant Frank Griswold entered an appearance and filed a written brief.

Appellant Frank Griswold appeared.

Mayor Hornaday announced per the City Clerk a representative from Refuge Chapel may also want to address the Board, but no entry of appearance was filed. He asked if there was someone from the Refuge Chapel that wanted to speak. Darren Williams from the Refuge Chapel was present and indicated he did not wish to speak.

Mayor Hornaday acknowledged the record on appeal and Addendum #1 consisting of 182 numbered pages as prepared by the City Clerk’s office. He asked that preliminary matters be addressed before hearing the substance of the appeal.

Appellant Griswold noted the potential conflict of interest for Matt Shadle. He participated on CUP 06-01 that was closely related to this CUP, providing comments supportive of the Refuge Chapel in relation to the Brother Francis Chapel in Kodiak. Council took the provision out of the code when Ordinance 05-17(A) was adopted; prior code said all BOA members must be impartial. It still remains policy of the City to be impartial. That is the reason Councilmember Novak was recused from Councilmember Stark’s ethics hearing.

Secondly, ruling is needed on Councilmember Wythe’s conflict of interest with a potential bias of Planning Commission Chairman Ray Kranich. Beth Wythe is a member of the immediate family, a second degree of consanguinity, a conflict per HCC 1.12.010(d).

Third, the BOA should have been provided with the electronic record of hearings before the Planning Commission. The previous CUP 06-01 record should have been in the record. Although the BOA has the minutes there is an allegation portions of the minutes have been fabricated and are incomplete. With such an allegation, if Mr. Griswold were a City official, he would want to make sure the minutes were complete. Additionally, Appellant Griswold should not have been required to pay $800 to $1,000 (non-refundable) to transcribe the minutes. The City Clerk’s office should have transcribed the minutes as allowed by HCC 21.68.070(b). He should have been provided the electronic record free of charge after providing 10 blank CD’s in accordance with AS 40.25.120(c). He was told he would have to pay $80, which does not cost the City $10 per tape. The City Manager claimed the City is not bound by Alaska Statues; Mr. Griswold disagrees. The City Manager swore an oath to abide by Alaska Statutes.

Mr. Griswold acknowledged the laydown memorandum from City Clerk Johnson stating the Refuge Chapel was advised they could speak. He stated although it is moot now, it could become important. If a party does not file an opening or reply brief they should not be given the opportunity to speak. There is no provision in Homer City Code to allow oral argument at a BOA. In 1998 and 1999 Council adopted Ordinance 99-8(A) with a provision allowing oral argument outlining the procedure. The Council then deleted that. Mr. Griswold wrote a letter to the City Clerk June 21^st asking if he was allowed oral argument and he was not given a response. At the last BOA he went to great lengths to prepare oral argument and the BOA decided they had no jurisdiction to hear the appeal. Parties should know in advance if oral argument is allowed. Ordinance 99-8(A) says only parties who brief are allowed oral argument.

Mayor Hornaday referred the preliminary matters to City Attorney Tans for direction.

City Attorney Tans advised the BOA the two allegations of conflict of interest or bias should be addressed. Mr. Griswold has not provided a good record for the allegations to be considered. The allegation is Mr. Shadle said something to the Planning Commission concerning a different CUP. Appellant Griswold argues it is relative to this case; Attorney Tans does not find it relevant to tonight’s proceedings. Mr. Shadle could be inquired if he could fairly and impartially consider the record before the BOA tonight.

Mr. Shadle disclosed his mother goes to the Refuge Chapel. He asked if that was a conflict of interest. Mayor Hornaday asked if he could decide this case in a fair and impartial manner. Mayor Hornaday commented Mr. Shadle’s testimony on the prior issue was a separate issue and would not disqualify him. Mayor Hornaday referred the question to Attorney Tans.

Attorney Tans questioned if there was a financial ramification for Mr. Shadle. Mr. Shadle answered there was not. Attorney Tans asked if Mr. Shadle was able to judge this care fairly on the merits because his mother attends the church. Mr. Shadle answered he could be fair and impartial.

Mayor Hornaday ruled Mr. Shadle is not disqualified.

Appellant Griswold said when he asked earlier if Council had copies of the minutes (CUP 06-01) he got nods from the Council. He asked if the BOA did or did not have the minutes and if they had read them. CUP 06-01 for a men’s homeless shelter was very similar to CUP 07-03. It was withdrawn and brought back. Testimony from CUP 06-01 was resubmitted for CUP 07-03 as they are so similar they are indistinguishable. Councilmember Roberts acknowledged the minutes in the Addendum to the appeal record provided June 25^th. She assumes the minutes are representative of Mr. Shadle’s testimony. Upon reading Mr. Shadle’s testimony she did not detect a conflict of interest.

Mr. Griswold believes it is a bias conflict of interest, as the standard is higher in a quasi-judicial hearing. It is necessary all boardmembers be without bias. He referenced the Stark ethics hearing and Councilmember Novak’s withdrawal from proceedings due to bias rather than financial conflict. In a quasi-judicial hearing there is a need to be impartial both in fact and in appearance. He keeps hearing people getting around this by being asked if they can be impartial or put their bias aside. It is meaningless, as HCC 1.12 has no exception whether you think you can be impartial. If people were just asked if they could be impartial we would not need a conflict of interest code at all.

Mayor Hornaday interjected his ruling remains the same.

City Attorney Tans asked that Appellant Griswold restate his position on the allegation of Mrs. Wythe’s conflict of interest.

Appellant Griswold stated one point of the appeal is the lack of impartiality of Planning Commission Chairman Ray Kranich. He lives at the same address as Beth Wythe and is her father in-law, making it within the second degree of consanguinity, constituting immediate family under the conflict of interest code. Mrs. Wythe cannot impartially rule on that point and Mr. Kranich’s conduct of the meeting as the chairman created a greater effect on the outcome of the meeting, possibly than other members.

City Attorney Tans asked for clarification if the conflict of interest was financial or bias.

Appellant Griswold answered it is clearly a bias.

City Attorney Tans stated HCC 1.12 is not particularly relevant to define the standard and the question is if there is a sufficient degree of bias or impartiality resulting from the familial relationship. He asked for Mrs. Wythe’s explanation of her residence.

Councilmember Wythe said she resides on a piece of property owned by herself and her husband, but not in the same household as Ray Kranich. There is a guest house cabin separate from her residence where her mother-in-law and Mr. Kranich live. Asked if the relationship will affect her judgment to be unable to judge this case fairly and impartially on the facts presented, Mrs. Wythe said that relationship will in no way affect her ability to rule on this situation. She stated Mr. Kranich and she take great lengths to insure they do not create a potential bias.

Appellant Griswold said the bias in inherent, whether the case is discussed or not. There is the appearance of impropriety. If HCC 1.12 is not relevant you would wonder why the City Attorney asked if you live in the same household. The fact that Mrs. Wythe is within the second degree consanguinity indicates she should not be ruling on her father-in-law’s participation.

Councilmember Wythe asked City Attorney Tans for a specific definition of second degree consanguinity. City Attorney Tans explained consanguinity is a blood relationship, first degree being parent/child, second degree being grandparent/grandchild or uncle. A relationship by affinity is one of marriage. Asked if in-law relationship was considered, City Attorney Tans answered he was not sure he knew. Mrs. Wythe’s understanding is that consanguinity is a bloodline rather than a marriage line.

Mayor Hornaday ruled Councilmember Wythe is disqualified.

STARK/SHADLE – MOVED TO OVERULE THE MAYOR AND HIS DECISION.

Councilmember Wythe advised when Mr. Kranich was placed on the Planning Commission, City Council had this discussion and received a ruling his placement on the commission would not preclude her placement on appeals. City Attorney Tans recalled writing a letter on the subject, although not the details.

Councilmember Stark noted Mr. Kranich is Mrs. Wythe’s step father-in-law, which goes beyond the second degree.

VOTE: NO. ROBERTS, NOVAK

VOTE: YES. SHADLE, STARK, HEIMBUCH

Motion failed.

Councilmember Wythe excused herself from the proceedings.

Mayor Hornaday set a 30-minute time limit for Mr. Griswold’s oral argument.

Appellant Griswold reiterated he asked on June 21^st if he was able to provide oral argument and received no response. He requested a continuance to allow him time to prepare his oral argument. Mr. Griswold provided Ordinance 99-8(A) to the BOA to show them what was deliberately deleted in reference to hear oral argument. He asked if he was allowed oral argument, why did not the Clerk on June 21^st tell him what the City’s policy was.

Councilmember Shadle commented with Mr. Griswold’s abilities and how much he costs the City every month. He stated Mr. Griswold knows the law pretty good. Mr. Griswold retorted he was out of line.

City Attorney Tans said traditionally the BOA has allowed oral argument. If Mr. Griswold is arguing it should not be allowed, it may be appropriate to say oral argument is not allowed and take the case under advisement.

Mr. Griswold responded if he is allowed to present oral argument he needs to be told in advance so he doesn’t have to come in here and wing it. He is not going to spend three days of preparation and come here and be told it is not allowed. The BOA does not have the discretion to arbitrarily decide.

Mayor Hornaday called for a 15-minute recess to allow Mr. Griswold to prepare his oral argument. Mr. Griswold stated he needed at least a week. Mayor Hornaday declared this happens in court all the time.

Mayor Hornaday called for a recess at 5:58 p.m. and resumed the meeting at 6:15 p.m.

Appellant Griswold stated Councilmember Shadle’s claim that his actions were costing the City money reveals a strong prejudice against him and Mr. Shadle should be disqualified for bias. Following the law should be the BOA’s top priority. Appeal proceedings are necessary to make sure governmental agencies act within the bounds of their authority. Ordinance 98-9(A) was a very good ordinance and was totally gutted by Ordinance 05-17(A). An ethical City Council would restore Ordinance 98-9(A) to include the provisions of participating without bias. There is no provision in city code for taking oral argument and he has not been given sufficient notice oral argument would be allowed. He reiterated his request for a continuance to prepare oral argument, stating he cannot prepare oral argument on 34 points of appeal in 15 minutes.

City Attorney Tans stated it would be prudent for the BOA to make a ruling in response to Mr. Griswold’s allegation about Mr. Shadle’s comments about the cost. A bias or partially should be determined of whether Councilmember Shadle is acting on a prejudgment or has prejudged the matter and is not impartially addressing the merits of the case. Mr. Shadle should be questioned if he has prejudged the matter on the basis of costs or other expense matters.

Mayor Hornaday questioned Councilmember Shadle on the alleged prejudice.

Councilmember Shadle responded his comment was a knowledgeable comment all of us are aware of, but it doesn’t impact his judgment on this matter. It is something all of us are aware of. Mr. Shadle answered he can be fair and impartial in determination of the issue.

Mayor Hornaday ruled Councilmember Shadle is not disqualified.

ROBERTS/NOVAK - MOVED TO OVERRULE.

There was no discussion.

VOTE: NO. HEIMBUCH

VOTE: YES. ROBERTS, STARK, NOVAK

Motion failed.

STARK/NOVAK – MOVED FOR EXECUTIVE SESSION FOR THE PURPOSE OF DELIBERATING AND DECIDING THIS APPEAL.

There was no discussion.

VOTE: YES. NON OBJECTION. UNANIMOUS CONSENT.

Motion carried.

Mayor Hornaday recessed the Special Meeting to Executive Session at 6:20 p.m. and reconvened at 6:56 p.m.

Mayor Pro Tempore Novak stated with regard to the issue of the Executive Session, deliberations will be continuing and a written decision will be forthcoming.

Mayor Hornaday adjourned the meeting at 6:56 p.m.

______________________________

JO JOHNSON, CMC, CITY CLERK

Date: _________________________