Session 05-24, a Special Meeting of the Homer City Council was called to order at 5:30 p.m. by
Mayor Pro Tempore Michael Yourkowski 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, McLAY, NOVAK, STARK, WYTHE, YOURKOWSKI.
STAFF: CITY CLERK CALHOUN
CITY ATTORNEYS TANS AND KREGER
ACTING CITY MANAGER AND PUBLIC WORKS DIRECTOR MEYER
CITY MANAGER WREDE, arrived about 6:30 p.m.
ABSENT: MAYOR: Hornaday (excused)
The Council met as a Committee of the Whole from 4:02 p.m. to 5:25 p.m.
AGENDA APPROVAL (No items may be added.)
The Council approved the agenda as printed by consensus.
PUBLIC COMMENTS (Only on Items 5 and 6 - no comments allowed on Item 4. Board of
Adjustment Appeal Hearing.)
There were no public comments.
Mayor Pro Tempore Yourkowski recessed the Special Meeting and called the Board of
Adjustment to Order, at 5:37 p.m.
APPEALS - BOARD OF ADJUSTMENT HEARING
A. Frank Griswold an appeal to the Board of Adjustment Regarding the Oscar Munson
Subdivision Brant Replat Preliminary Plat, (Staff Report PL 05-03).
Chair Yourkowski stated the following:
That this case is being heard as an appeal of a preliminary plat approval under the procedures of HCC Chapter 21.68. This hearing was originally scheduled for September 12, but it was postponed when the meeting was canceled for inability to obtain a quorum due to Councilmember McLay's accident. The City Clerk's Office informed all parties and a letter was received from Mr. Griswold, there were no other comments received regarding rescheduling the hearing.
That Mr. Griswold has appealed the Oscar Munson Subdivision Brant Replat Preliminary Plat (Staff Report PL 05-03)
That there have been no notices of appearance filed. No party filed a written brief. Mr. Griswold's written Notice of Appeal is included in the record.
The Chair asked that the parties come forward and identify themselves.
Frank Griswold, the only party present, came forward and identified himself for the record.
Chair Yourkowski stated that the record on appeal consisting of 56 pages plus 7 pages plus Mr.
Griswold's letter dated September 9, 2005, (supplemental pages) as prepared by the City Clerk's
Office. He noted as a Preliminary Matter that Frank Griswold had requested that the record be
supplemented with December 13, 2004 Council minutes excerpt and February 2, 2005 Planning
Commission minutes excerpt. He further noted out that the first 4 pages do relate to the Brant
Replat proceedings, and it would be appropriate for the Board to approve these pages being
supplemented to the record.
YOURKOWSKI/HEIMBUCH - MOVED TO SUPPLEMENT THE RECORD WITH THE
FIRST FOUR PAGES OF FRANK GRISWOLD'S LETTER DATED SEPTEMBER 26TH.
There was one clarification that the four pages are his letter and three pages from the December
13, 2004 Council meeting minutes.
VOTE: YES: McLAY, WYTHE, YOURKOWSKI, STARK, NOVAK, HEIMBUCH.
Motion carried.
Chair Yourkowski inquired if the Board wanted to allow Oral Arguments.
STARK/HEIMBUCH - MOVED TO ALLOW ORAL ARGUMENTS.
There was no discussion.
VOTE: YES: NON OBJECTION UNANIMOUS CONSENT.
Motion carried.
Chair Yourkowski advised Frank. S. Griswold that he had ten minutes for oral argument and that
he could reserve time to speak in rebuttal.
Mr. Griswold stated that the Board did not address the other supplemental items, such as the
November 17, 2004 Planning Commission Minutes, that were added to the record.
City Clerk Calhoun advised the Chair that these were already supplemented to the record.
Mr. Griswold presented oral argument that included the following
He wanted everyone to know that there is nothing personal about this appeal and that he holds all the parties involved in high regard.
He filed this appeal nearly 8 months ago and that there is something wrong when it takes this long to hear an appeal. This is unfair to the parties. There should be a 30 day deadline for the preparation of the record. It had been delayed to allow the City Attorney to research an issue pertinent to the appeal.
Commissioners Hess and Connor clearly had conflicts of interests in this matter and should not have participated in any of the discussions.
Hess is the owner of Puffin Electric, a subcontractor of Jay-Brant, Bob Brant is an owner of Jay-Brant and one of the applicants for the vacation of the alley right of way. He commented some more on Mr. Hess's sub contracting relationship with Bob Brant.
Homer City Code 1.12.010(b)(2) provides the following: A person's financial interest includes any affiliation with an organization in which he has an ownership interest, holds a position in management or is a director, trustee, employee or the like.
In this context a sub contractor is analogous to an employee and a highly compensated one at that.
Commission Hess's participation in discussion is prohibited by Homer City Code 1.12.030 regardless of whether or not he was allowed to vote on the matter. Even though his vote may not have been required to pass the measure, his participation in discussion may have affected the votes of others. In the case of Buell vs. the City of Bremerton, Washington the court stated about the self interest of one member of the Planning Commission affecting the actions of the other members of the Commission, regardless of their disinterest.
The recommendation of the Planning Commission to the City Council could not be assumed to be without impact on the Council and it would not appear to the affected public that it was without impact.
The disqualified member's actual financial gain is sufficient to invalidate the entire proceeding.
He referred the Council to the remarks of Councilmember Yourkowski on page 17 of the December 13, 2004 Council meeting minutes.
The Alaska Supreme Court did not adopt the policy of automatic invalidation in cases where government officials participate in conflict of interest and stated that courts should keep in mind the two public policies served by impartial decision making. Accuracy of decisions and the avoidance of the appearance of impropriety. Griswold vs. City of Homer at page 1020A29.
The Court then set forth three factors which must be examined when determining if participation with a conflict of interest invalidates an Ordinance. 1)Whether the member disclosed the interest where the other Councilmembers were fully aware of it, 2) The extent of the members participation in the decision, and 3) The magnitude the member's interest.
Hess's financial interest in maintaining his relationship with Jay-Brant construction is of sufficient magnitude to invalidate the vacation of the alley right of way. Mr. Griswold likened this relationship to former Councilmember Dennis Leach's relationship to J. W. Sheppherd, wherein the Homer City Attorney did a legal opinion dated January 19, 1998. Mr. Griswold passed copies of this legal opinion out to the members of the Board of Adjustment. He stated that in both cases the amount at stake is substantial.
He cited an earlier opinion by the City Attorney dated November 5, 1997, and said that he was quoting and that it states in part, "It is good that the Council is sensitive to conflict of interest problems and consciously seeks to avoid them. In analyzing whether a conflict of interest exists one should ask whether the Councilmember has any business, financial or family interests, or fiduciary or legal obligations that put him or her in a position of having to choose between the City's interests and conflicting non City interests. If faced with such a choice the individual should be disqualified."
Commissioner Hess was faced with such a choice and should have been disqualified as he requested.
Commission Connor owns the lot adjoining the Brant property and her property would be directly
affected by the vacation of the alley next door. She was deemed to have a conflict of interest for
one proceeding and then was deemed to not have a conflict of interest for a subsequent
proceeding. Arbitrary at best. As a next door neighbor and a close personal friend of Bob and Pam
Brant, she too was put in the position of choosing between the City's interest and conflicting non
City interest. Even if she did not have a direct financial conflict of interest she had a conflict of bias
and her participation gives the appearance of impropriety.
Mr. Griswold began citing another instance of conflict of interest and referred to the February 2,
2005 Planning Commission minutes which had not be accepted by the Board as part of the record.
The City Attorney interrupted and told the Board of Adjustment that Mr. Griswold was entering
new evidence.
Mr. Griswold stated that the conflict of interest code needs to be amended so that conflict of
interest issues are clearly understood and not arbitrarily decided. Section 1.12 should and does not
set forth the rules regarding disqualification for bias in quasi judicial proceedings and that perhaps
the 300 foot rule should apply. He commented that there are quite a few building contractors that
serve on the Planning Commission. Homer City Code 1.12.010 should specifically address
subcontractors. Close personal friendships need to be addressed as well. He told the Board that
they will know when the Code is right when the votes on conflicts of interest and conflicts of bias
are consistent and when the appearance of impropriety disappears.
Chair Yourkowski stated that deliberations will commence as time allows tonight and from time to
time as necessary until completed. The board may wish to consider combining deliberations for the
two Board of Adjustment agenda items. He stated that a written decision will be prepared and
issued to the parties after deliberations are completed.
The second item before the Board is continued deliberations on the appeal regarding Conditional Use Permit 05-10.
PURSUANT TO BOARD ACTION ON AUGUST 22, 2005, the Board of Adjustment may conduct Executive Session deliberations on the Board of Adjustment Decision, Re: Frank Griswold an appeal to the Board of Adjustment Regarding Conditional Use Permit 05-10 - For a Reduction in the Setback From a Dedicated Right of Way as Permitted By HCC 21.48.040(B)(4) at 445 Grubstake Avenue, Lot 2 Block 11, Glacier View Subdivision.
These deliberations may be conducted at the same time as Item 2. deliberations.
HEIMBUCH/McLAY - MOVED FOR THE BOARD MOVED TO GO INTO EXECUTIVE
SESSION FOR DELIBERATIONS ON THE GRISWOLD APPEAL OF THE BRANT
REPLAT, AGENDA ITEM 4. AND FURTHER DELIBERATIONS ON THE GRISWOLD
APPEAL OF CONDITIONAL USE PERMIT 05-10, AGENDA ITEM 5.
Councilmember Wythe asked to amend to include the City Attorney. She was advised that the City
automatically attends this Executive Session.
VOTE: YES: NOVAK, HEIMBUCH, McLAY, WYTHE, YOURKOWSKI, STARK.
Motion carried.
Chair Yourkowski Recessed the Board of Adjustment at 5:55 p.m.
Mayor Pro Tempore Yourkowski reconvened the Special Meeting at 5:55 p.m. to take up New
Business
NEW BUSINESS
A Memorandum 05-151, from City Clerk, Re: Request for Executive Session Pursuant to AS
ยง44.62.310(c)(1), Matters, the Immediate Knowledge of which would Clearly have an Adverse
Effect upon the Finances of the Government Unit and Attorney Client Privilege. (Hurlen
Mediation Strategy and Ocean Drive Loop Bluff Erosion Control Project (Seawall) Proposed
Mediation.)
NOVAK/STARK - MOVED FOR THE APPROVAL OF MEMORANDUM 05-151.
The City Clerk asked if this included inviting the Public Works Director, Carey Meyer, into the
Executive Session.
The Mayor Pro Tempore and Council concurred.
VOTE: YES: STARK, NOVAK, HEIMBUCH, McLAY, WYTHE, YOURKOWSKI.
Motion carried.
Mayor Pro Tempore Yourkowski recessed the Special Meeting to Executive Session at 5:56 p.m.
and Reconvened the Special Meeting and Board of Adjustment at 7:10 p.m.
Mayor Pro Tempore and Board Chair Yourkowski stated that the Board of Adjustment made no
decision on the Brant Replat Appeal and gave direction to the City Attorney to draw up an opinion
for them to ratify at another meeting. The McGreenery issue, Frank Griswold's appeal to the
Board of Adjustment regarding Conditional Use Permit 05-10 for reduction in the set back.
HEIMBUCH/NOVAK - MOVED TO APPROVE THE MCGREENERY DECISION. ( Frank
Griswold's appeal to the Board of Adjustment regarding Conditional Use Permit 05-10 for
reduction in the set back.)
City Clerk Calhoun asked if this is the revised decision.
Chair Yourkowski confirmed.
VOTE: YES: NON OBJECTION. UNANIMOUS CONSENT.
Motion carried.
The Board of Adjustment session was closed at 7:13 p.m. and the Special Meeting items were
continued.
Mayor Pro Tempore Yourkowski stated that the Council met with the City Attorneys on the
Hurlen Mediation and gave instructions on how to proceed and met with the City Attorney
regarding the mediation on the Seawall and gave instructions regarding the issues at hand.
COMMENTS OF THE AUDIENCE
Audience may comment on any matter.
There were no audience comments.
COMMENTS OF THE CITY ATTORNEY
City Attorney Tans had no comment.
COMMENTS OF THE CITY CLERK
City Clerk Calhoun had no comment.
COMMENTS OF THE CITY MANAGER
The Acting City Manager and the City Manager were not present.
COMMENTS OF THE MAYOR
Mayor Pro Tempore Yourkowski apologized to the public and news media for the delay due to the
executive session.
COMMENTS OF THE CITY COUNCIL
Councilmembers had no comments.
ADJOURNMENT
There being no further business to come before the Council, Mayor Pro Tempore Yourkowski
adjourned the meeting at 7:15 p.m. The Regular Meeting will be called to order at approximately
7:20 p.m. The next Regular Meeting is scheduled for Monday, October 10, 2005 at 7 p.m. and the
next Committee of the Whole is scheduled for Monday, October 10, 2005 at 4 p.m. This includes a
one hour session on the 2006 Budget. All meetings scheduled to be held in the Homer City Hall
Council Chambers located at 491 E. Pioneer Avenue, Homer, Alaska.
___________________________________
MARY L. CALHOUN, CMC, CITY CLERK
Approved: ____________________________