Loading...
HomeMy WebLinkAboutMinutes CC - 08/09/2007 - MINS 08 09 07 SCWS (Migrated from Optiview)Special Called Work Session of the Milton City Council Thursday, August 9, 2007 1 of 27 This summary is provided as a convenience and service to the public, media, and staff. It is not the intent to transcribe proceedings verbatim. Any reproduction of this summary must include this notice. Public comments are noted and heard by Council, but not quoted. This document includes limited presentation by Council and invited speakers in summary form. This is an official record of the Milton City Council Meeting proceedings. Official Meetings are audio recorded. Special Called Work Session of the Mayor and Council of the City of Milton was held on August 9, 2007 at 3:00 PM, Mayor Joe Lockwood presiding. All Councilmembers were present. Mayor Lockwood called the Special Called Work Session to order. NPDES Permit City Clerk Marchiafava stated there was no public comment on this item. Community Services/Program Director Hanlin: • Stated the item will be discussed several times in a more informal setting. • Stated Abbie Jones, the City’s Transportation Engineer and Jim Seeba, a stormwater engineer from Sandy Springs, was present and would be using a PowerPoint presentation explaining requirements of the Federal Government to be compliant in the permitting process. • After presented, will have detailed discussion about the policy matter that is related to the permitting process. • The Storm Water Policy that will be implemented in the City of Milton. • Starting with the formal presentation and following with discussion on the policies. • Tonight’s discussion will be on storm water. 1. Stormwater System (MS4) - definitions. 2. Stormwater Permitting - procedure. 3. Stormwater Management Plan. 4. Budget Requirements. POWER POINT PRESENTATION: Stormwater Status Report Department of Community Services Agenda ƒStormwater System (MS4) ƒStormwater Permitting ƒMS4 Management Plan ƒBudget Requirements Page 1 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 2 of 27 1. Municipal Separate Storm Sewer System (MS4) aka Stormwater System ƒConsists of •Ditches, Pipes, Swales, Dams, Detention Ponds, Streams, Bridges ƒMaintained by •Public •Private What is a MS4??? Milton is responsible for its MS4 Case Study 1: Sinkholes in Milton ƒBuilt in the 1980’s to 1990’s. ƒNot in the right-of-way ƒUnclear what maintenance and inspection had taken place ƒAffected by Stormwater Management Manual Policy Case Study 2: Forsyth County Pine Lake Dam ƒBuilt in the 1980’s. Not listed as a high hazard status. Public Road on top of dam. ƒ1998 status elevated to high hazard ƒ2002 dam failed ƒ2007 courts ruled that Forsyth County was negligent and must replace ƒUnclear what maintenance and inspection had taken place Case Study 3: Wisconsin Bridge ƒ40 years old ƒRecent annual inspections showed deficiencies ƒBridge rating was below acceptable threshold ƒEngineer opinions were not heeded ƒBridge not replaced prior to accident due to lack of funds ƒDOT is primary responsible party for replacement 2. Stormwater Permitting ƒRequired of Clean Water Act 1972 ƒPermit for 2007-2012 ƒRequired Application for Notice of Intent (NOI) to discharge Stormwater ƒMS4 Stormwater Management Plan ƒAnnual Reports ƒ5 Year Audit ƒConsequences: Penalties, Fines, Withheld Funding 3. MS4 Stormwater Management Plan (NOI) ƒEducation/Outreach – website, fliers at schools ƒPublic Involvement/Participation – HOA, Churches, Schools ƒIllicit Discharge Detection and Elimination – Inventory, Inspections ƒConstruction Runoff Control – Plan Review, Inspections, Enforcement ƒPost-Construction Management – Inspections, Enforcement Page 2 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 3 of 27 ƒPollution Prevention/Good Housekeeping – Training, System Cleaning, Water Quality Implementation 4. Budget Requirements ƒSystem Inventory/Mapping ƒInspections & Enforcement Program ƒSystem O&M Planning ƒCapital Project Planning ƒFloodplain Mapping (Future Conditions) ƒPossible Future Water Quality Monitoring ƒPossible Future Watershed Improvement Plans Funding is needed and required ƒGASB 34 •Maintenance of Assets •Affects Municipal Bonding ƒLegal Mandate by Clean Water Act Summary and Action Items for 2007 ƒPlan Review, E&S Inspections ƒAdopt all Model Ordinances ƒCompile Library of Resources ƒMake website section live ƒSubmit Application (NOI) due September ƒDNR Audit - September ƒInventory and Map Assets (20%) ƒPublic Outreach, Participation (End of Power Point Presentation) Community Services/Program Director Hanlin: • The Clean Water Act of 1972 requires that municipalities within large metropolitan areas obtain National Pollution Discharge Elimination System (NPDES) permits to operate their storm sewer systems. • A storm sewer system is defined as a system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains) designed or used for collecting and conveying stormwater. • The regulatory definition of this system is a MS4, a Municipal Separate Storm Sewer System. • The City of Milton is required to obtain a permit to operate its MS4 for the period 2007 through 2012. Page 3 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 4 of 27 • The permit is issued by the State of Georgia Department of Natural Resources Environmental Protection Division. • Prior to the beginning of each 5 year permit period each municipality must undergo an audit (by EPD) of their program. • The City of Milton must submit their application, including a stormwater management plan, and undergo an audit by September 2007. • The permit application is commonly referred to as a “Notice of Intent (NOI)” to discharge stormwater into State Waters. • The application (NOI) must include a program of measures for system management to be implemented within the 5 year permit period. There are six key areas that must be addressed with the NOI: 1) Public Education and Outreach 2) Public Involvement/Participation 3) Illicit Discharge Detection and Elimination 4) Construction Site Stormwater Runoff Control 5) Post-Construction Stormwater Management in New Development and Redevelopment 6) Pollution Prevention/Good Housekeeping • A majority of these requirements are currently being met with the adoption of model ordinances and our plan review/inspection process. • Other requirements such as education/outreach, public involvement/participation are relatively minor in terms of staff commitment and cost. • The key elements of the program, in terms of effort and cost, include the following: 1) System Inventory/Mapping – This includes public owned and privately owned 2) Developing an Inspections/Enforcement Program – Although we aren’t directly responsible for private facilities, we are responsible for insuring their compliance. 3) Developing a plan for Operation and Maintenance 4) Developing a Capital Improvement Plan 5) Floodplain Mapping– This is an extension of the FEMA program, but it addresses future watershed conditions and extends farther into the basin. 6) Water Quality Monitoring (possible in future) 7) Watershed Improvement Plans (possible in future) • Compliance with this permitting requirement, does call for a significant budgetary commitment in coming years. • Failure to comply with this requirement could result in penalties, fines, and withheld funding. Engineer Seeba: • Need to inventory entire MS4 for public and privately owned facilities. • 1st year have to do 20% of the MS4. • Subsequent years 10%. Councilmember Zahner Bailey: Page 4 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 5 of 27 • Question about the 20%. • How to reconcile with the need to identify those high risk areas? • Did 20% include some of those high risk areas? Transportation Engineer Jones: • Need to work on identifying the elicit discharge points. • Usually in high risk areas. • Milton does not have a lot of those. • Do not have heavy industrial part of our town. • Would concentrate our effort if did have heavy industrial area. • Staff would be identifying this and would be an interdepartmental effort. • Business licenses would show the types of use. • Fire Marshal programs would at what point be showing what types of chemicals were involved in a particular business. Councilmember Zahner Bailey: • Thinking about Providence Park and the landfill. • Wants to be sure it is on staff’s high priority. Engineer Seeba: • Usually flexible and lenient in first year. • First year generally for data collection. • Now having inventory within our right-of-way surveyed. • Would contribute to up to 20% of the inventory. • One major cost component would be the flood plain mapping. • There was a FEMA map which maps the flood plain for what is currently is in a flood hazard zone. • DNR asking us to map for future developed conditions. • That would be a revision of that plus an extension of where the FEMA maps lead. • Their target deadline would be at a one square mile watershed. • They are making a requirement that it now extend up into the watershed until it reaches a hundred acres. • More flood plain mapping would be required. • Subsequent years we are going to have to extend these maps and it could be pretty costly. Councilmember Thurman: • Assumed that when they go over the budget that they will be going over what this year’s cost would be. • Was there an indication of what would be expected in the future costs in years 2, 3, 4, and 5 and asked if that information was available. Engineer Seeba: • Currently working on that. Page 5 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 6 of 27 • At this point costs would just be estimates. Transportation Engineer Jones: • Need the inventory to make accurate predictions. Councilmember Thurman: • Asked if this year’s budget included whatever we need to do? Transportation Engineer Jones: • There was a line item and she believed it was called storm water. Councilmember Zahner Bailey: • Fulton County had done some updates for those flood mapping. • UGA had done some recent studies as part of the Etowah Watershed. • From a cost mitigation perspective she was assuming that data was being looked at. Traffic Engineer Jones: • They have all of that data. • There was cost mitigation. • Highly suggested that the City finds its own mapping program. • There is a mitigation that can be done during that interim. • Require folks to do this as they submit development. • We would end up with a flood map that would be a mismatched quilt and would not be the best quality. • Would keep us in conformance. • Until such point and time we and City can go into a huge mapping project which, she believes is huge with 3,000 acres. Councilmember Lusk: • Asked what part of aerial mapping has in the whole process. Traffic Engineer Jones: • Aerial mapping is related to this process. • Aerial photography is something that is needed for so many different parts of the city. • Needed for community development purposes. • Needed for any potential ways city might choose to fund. stormwater. Councilmember Lusk: • Mayor had commented on this discussion with retired army officer on Saturday. • Brought up the point of what was available through the army or the military at this point. Page 6 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 7 of 27 • High resolution aerials. Traffic Engineer Jones: • Did not know if that that was terribly relevant to us to what we would have to do for our permit. • For some current land use and some hydrology studies, it might be valuable. • For inventorying our system he did not think this would be relevant. Councilmember Thurman: • Thought he was discussing more about underground water capabilities. Councilmember Lusk: • One of the benefits is in the program that they have. Transportation Engineer Jones: • Staff would like to know what additional resources have been volunteered so they could investigate. Councilmember Lusk: • Underground physical survey. Councilmember D’Aversa: • Seemed it would be a good resource. Transportation Engineer Jones: • Need to annually provide proof to auditors. • That will occur in a couple of months. • Provide a program that shows the City’s planning for the system and capital budgeting. • Part of inventory already being undertaken by IMS. • Physical and visual inventory of existing system. Engineer Seeba: • Believed City is asking for this. • Creates the patchwork. Councilmember Zahner Bailey: • Is City requiring within site plans for new development providing flood plain mappings? • Private lakes and dams. • Mechanism for citizens that own land and concerns about nearby damns. • Place this on website. Transportation Engineer Jones: • Live section of website would accommodate that need. • Large amount of records SES lakes and damns in area target. Page 7 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 8 of 27 Community Services/Program Director Hanlin: • Purposes of budget and how it is tied to budget. • First year City can get by without expending a huge amount of money. • In process of conducting inventory and things that would automatically bring City into compliance. • Long-term budget implications a bit scarier. Transportation Engineer Jones: • Referenced a one page summary at the back of the Power Point section so if you want to know the executive summary. Community Services/Program Director Hanlin: • Moved on to discussion of the policy itself. • Agenda Item No. 2 is discussion of the policy manner and the implications of making a decision about this policy. • Several different approaches that Council can make. • Formally in the form of a resolution or an ordinance or make it a policy that would be in conjunction with the permit and adopted by reference. • Deferred to Mark Scott to talk about the legal aspects of the policy. City Attorney Scott: • To be binding on a future Council, there needs to be an ordinance. • Resolution might be a good intermediate approach. • Could accept this as the policy or make a motion to adopt this as a policy and have most flexibility. • Whether or not to discuss legal aspects of how far to go with the policy at this point or not. Community Services/Program Director Hanlin: • Discussed the definition of the system. • Need feedback from Council about City Attorney’s views of where City’s responsibilities should begin and end. City Attorney Scott: • This is a very important decision for Council to make. • Important decision both for the policy and the political aspects of things. • Number of places throughout the City right now where there are failures in the sewer infrastructure. • What are you responsible for and how far do you want to go with? • The minute that you touch something on private property, you will be responsible for it forever. • Councilmember Zahner Bailey always talks about precedent and especially on this one there is a huge precedent to set. Page 8 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 9 of 27 • Fulton County has gone out to a number of private property areas and attempted to put a Band- Aid on these issues. • Visited and surveyed some problem areas in the City and there are some that we are definitely going to have to fix now because they are within the right-of-way. • Others are attached to the right-of-way or they are adjacent to the right-of-way. • In the policy before them number 3, City Right-of-Way, it says the City is responsible for maintaining that portion of the stormwater drainage system within or connected to. • That is the key component to be addressed. • Decision has to be whether you want to go that far or not. • Fulton County clearly went to “connected to.” • The City of Sandy Springs took the position that they are not responsible for the storm water system out of the right-of-way at all. • Sandy Springs says Fulton County is actually responsible for it. • Not certain whether that is legally going to fly. • Could go either way. Councilmember Zahner Bailey: • Asked City Attorney if he was saying that Sandy Springs said only within the right-of-way and Fulton County went beyond that or was Fulton County similarly responsible for within the right-of-way. City Attorney Scott: • Fulton County is responsible for any storm water infrastructure that was dedicated that is outside of the right-of-way. • If it was dedicated and he thought there was a very good legal argument to be made that it does go to the City. • In 1991, the County stopped accepting dedication of stormwater infrastructure and the issue before you comes down to what occurred between 1991 and the present. • Those areas that you have to make a policy decision on and it is a decision that only you seven can make. • This is one of the highest level decisions that the City can ask for. • There are huge liability issues that go with this in terms of responsibility for property damage, and responsibilities for failures. • He is not telling you that you should not do it but this is a decision that you have to make after very serious consideration and there are people who are clearly looking to you to do this. • There are people that would say how can I possibly be responsible for storm water infrastructure that just happens to go through an easement on my property and could be a horrendous expense in terms of thousands of dollars if something fails. • On the other hand there are some subdivisions where the developers are still present and are still developing. Crooked Creek is one of them and one of the areas they have found some failures that have been inspected. There is a chance that we can go back to that developer and say you are still on site and still have some legal responsibilities for this. Page 9 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 10 of 27 Councilmember D’Aversa: • Asked if the Council established a policy, would they be assuming responsibility and liability for the infrastructure outside the right-of-way, from the right-of-way and connected to the right- of-way. City Attorney Scott: • Said he believed if it had already been dedicated then they would not accept dedication, he does not believe. He does not think that is any question. We do not accept dedication. Councilmember D’Aversa: • Asked if they were just looking at retro. City Attorney Scott: • We are looking at infrastructure that had never been dedicated and since 1991 was not dedicated. • Fulton County made the right call in not accepting dedications since 1991. • He asked if this is something that we are going to do for our citizens and residents as a courtesy. This is an issue that is just bigger than their property or subdivision, this is infrastructure. If a road fails and particularly if it was a dedicated road, if it has not been dedicated and is still private, we are not responsible for it. • If it is in the right-of-way it is clearly City property at that point, but if it is outside, how far are we going to go? Councilmember D’Aversa: • If it is retro historical infrastructure versus new infrastructure, what is the difference? City Attorney Scott: • It is not just retro but it is anything that is outside the right-of-way that is even built tomorrow. Councilmember D’Aversa: • Asked what is the difference in not accepting dedications now? City Attorney Scott: • It is still private property and those features become the ownership of the homeowner’s association in a residential neighborhood. • It is not a problem in commercial areas where we have a commercial owner that stays present or an office development or things of that nature. • It is an issue when you have homeowner’s associations who do not have the money to maintain these features and if solely on private property, the homeowner’s association will say we are not responsible for it either. Sometimes they go right down the property line and the homeowner’s association will say it is up to the two homeowners. Community Development Director Wilson: Page 10 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 11 of 27 • Said that was correct and you need to consider if there was no law that requires the homeowner’s association to even exist. If they were here it would be a staggering cost to maintain that storm water system and they could just go belly up for awhile • Presumably, the responsibility would go to the state and they are not going to maintain these things. Councilmember D’Aversa: • Inquired about not accepting any new dedications. Community Development Director Wilson: • The dedications that occurred happened during the platting process and they stopped in 1991. Councilmember D’Aversa: • Asked if it could be new infrastructure, how does that occur? City Attorney Scott: • Said it is not a question if it is a dedication because if it is dedicated, it is clearly our responsibility. • We are talking about anything that was privately owned. Even a stormwater easement that was on your property or anyone else’s private property. • Also on common owned homeowner association property and we are talking about stormwater infrastructures that are on private property. Councilmember D’Aversa: • Asked if it has not been dedicated to date, it will not ever be dedicated. City Attorney Scott: • Said we are not going to accept dedications. Community Development Director Wilson: • Stated that was correct and this does not mean that there would not be a time when there would be a need for somebody to repair that and there is no responsible party to attack. Councilmember Zahner Bailey: • Said if we end up with the policy where we are saying that we will accept that responsibility beyond or connected to that right-of-way, then we step up to the plate from a financial and liability perspective. • The tough part of that is that we really do not have a sense of what that potential cost or risk could be, but we do have a few examples in Crooked Creek and perhaps a few other places. Councilmember D’Aversa: Page 11 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 12 of 27 • Said we are not going to accept new dedications, but we are going to accept and grandfather in what is already there if we make that policy position what was already dedicated by Fulton County. City Attorney Scott: • We do not want to question the terminology being used, but he wanted to explain that dedication is not the issue. Infrastructure that is on private property is the issue and whether we will be responsible for that infrastructure that is connected to our infrastructure. Councilmember D’Aversa: • Asked what would be the possible legal outcome. City Attorney Scott: • Said there is a clear difference between what was actually dedicated and accepted and what is on private property. • What was dedicated and accepted is either an easement that is or was granted in favor of Fulton County which we have inherited or it is actual property. • Either it was an easement or it is actually outright fee simple ownership. Councilmember Zahner Bailey: • Stated that Fulton County had not accepted that liability either. City Attorney Scott: • Said the problem is they have continued to put band-aids and perform maintenance and as soon as you do that you accept it by default. Councilmember D’Aversa: • Asked from a legal perspective would they be opening themselves up at all to liability issues by accepting a broader policy. City Attorney Scott: • Advised they would be. Engineer Seeba: • Said we have been doing quite a bit or work with Sandy Springs and has a long history of working on private property and Fulton County had a long history of working on private property. They have a maintenance program on detention ponds and accepting those responsibilities. • There is a program on the Fulton County website called a pipe extension program and if you request a pipe extension, they will come out and extend the pipe on your property and maintain it forever. Councilmember Zahner Bailey: Page 12 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 13 of 27 • Asked about any subsequent litigation over these things. City Attorney Scott: • Said he has not personally been aware of any. He had been involved in representing Roswell in cases where they have accepted it and had litigation and is more currently working on a couple of claims. It is not outright litigation yet but they have threatened litigation. • Forsyth County does not accept responsibility and does not do any maintenance for anything outside the right-of-way. They have made it very clear and it has to be included on any plat before it is approved, so that is one policy option for the City. Councilmember Lusk: • Said that Fulton County continued to maintain facilities on private property even subsequent to 1991 and asked when we took over control of the City of Milton; did we actually adopt their unwritten policies? City Attorney Scott: • Said he is concerned that a litigant could make that argument and he could not say whether they would prevail and does not think there are any cases out there that defines it one way or the other which is why the City needs a policy. Councilmember O’Brien: • Asked if the City affirmatively rejected would that serve as a defense. City Attorney Scott: • Said he thought it did as long as you did not make any exceptions to that and the City would have to make a very firm stand on not making any exceptions because the minute you start maintaining, the minute you dump a shovel full of earth, you have accepted it. Community Development Director Wilson: • Asked City Attorney Scott was it not part of this equation that when the City of Milton was created, it was clear that the right-of-ways of these roads became the ownership of Milton and therefore we have the authority for anything in that. • It was unclear on whether or not the easements were owned by Fulton County or were passed to us • If Sandy Springs is saying the right-of-way is ours, then we will maintain that, but the easements and everything outside the right-of-way is not ours and that includes everything prior to 1991 back to the origin of the line. Essentially, everything that is out there, either before or after 1991 and all of those stormwater systems that are outside the right-of-way belongs to us and the rest of it does not. • A conservative estimate is 50% outside the right-of-way so if you take that on, you are doubling your liability without question to keep that maintained. Councilmember Mohrig: • Asked if there would be unlimited liability. Page 13 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 14 of 27 City Attorney Scott: • Responded potentially, yes. Tami Hanlin had a suggestion about how we could go about doing that and making it manageable. If you did this, you need to put a certain amount of money in your budget every year and that you say, okay up to this level is what we will do this year. • On a yearly basis, we will address what we can and what is in the budget. This is one approach that could make it manageable if you choose to extend beyond the right-of-way. However, this does not mean you are not going to be sued and found liable. Community Services Director Hanlin: • Said the City would have to limit it and the constraint would be your budget essentially. • For instance there are four sink holes the City considers currently as being serious and the repair would range from between $10,000-$20,000 each and three of the four are clearly in the right-of-way. City Attorney Scott: • Said the difference between Milton and Sandy Springs is that Sandy Springs’ infrastructure is significantly older so they are facing much more potential liability. Councilmember O’Brien: • Asked if there is infrastructure failure on private property, who is responsible? For instance, if a Homeowners’ association claims bankruptcy and dissolves the corporation and the homeowner cannot fix problem, who then is responsible for the repair? City Attorney Scott: • Said that ultimately the court decides. The City has responsibility of enforcing property maintenance codes and is responsible for anything in the right-of-way. Community Development Director Wilson: • Said NPDES permit would be issued to the City and if City failed to meet standards of the permit, the City would be at risk of loosing the permit. There are detention ponds and nobody to maintain them. Engineer Seeba: • Said the permit discussed earlier puts burden of enforcement on the City and seeing that they are inspected and kept up to a standard. • He has investigated over 70 complaints and none were in right-of-way but were connected to the right-of-way and said there is a legal issue every time unless a clear policy in place. Councilmember Zahner Bailey: • Asked about a timetable for the stormwater utility system. Page 14 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 15 of 27 Community Development Director Wilson: • Said we need an inventory because we do not know how many are in the right-of ways at this time. Engineer Seeba: • Said Sandy Springs budgeted a certain amount of money for a feasibility study for their stormwater utility system and Milton is in the process of doing this. Their next phase is a full investigation and it should be ready to go forward in about year and a half. Councilmember Zahner Bailey: • Asked for an estimated cost of feasibility study. Engineer Seeba: • Said the study would be over $100,000, but the City needs to determine what level of service is to be provided. • There are operational costs and capital costs and they are in the low, medium or high range of what City wants to provide for operation and for capital improvement. • The City will need to prioritize with criteria that has been set up and this needs to be gotten out to the public what the money is for because there is concern of the public as to additional tax or a fee for service. It is important to communicate with constituents and the public needs to understand it benefits their quality of life. Councilmember Zahner Bailey: • Said regarding impact fees, does this allow for some fee structure as developments occur to cover storm water issues and would this policy be tied into to Master Plan. Community Development Director Wilson: • Said impact fees can be used for stormwater but only associated with new development. • Permitting will remain until permit is closed out. Community Services Director Hanlin: • Said the next step is for Council to authorize the Mayor to proceed with permit application and the application date is September and will be on the August 16th agenda. • We need authorization for a plan of action to move forward and asked for individual feedback of Council via email. Staff will come up with recommendations for a policy as we move through the application process. Mayor Lockwood called for next Agenda Item. Review of Chapter 6, Code of Ethics and Standards of Conduct. City Clerk Marchiafava said there is no public comment on this item. Page 15 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 16 of 27 City Attorney Scott: • Said the Ethics Board members worked on this Ordinance and endorsed the changes and this is a better document as result of their work. It needs to be fine tuned and finalized. The following are the changes and/or additions to Chapter 6, Code of Ethics and Standards of Conduct, Draft Version 1.3: DRAFT VERSION 1.3 INCLUDING ETHICS BOARD REVIEW FOR SUBMISSION TO CITY COUNCIL 8/7/07 Chapter 6: Code of Ethics and Standards of Conduct Section 3. Exemptions (i) (1) before acting, the public servant requested and received a written opinion from the City Attorney or a formal ethics opinion or a confidential advisory opinion from the Board in accordance with the procedures established in this Ordinance; and Section 5. Duties (b) All public servants shall respond fully and truthfully to any inquiries by the City Attorney or the Board in connection with the investigation of an alleged or potential violation of this Ordinance. All public servants shall cooperate fully in any investigation by the City Attorney, outside counsel or the Board, and shall locate, compile and produce for them such information as they may request, unless the information requested is exempt from disclosure under this Ordinance or other applicable law. (c) All public servants must report a violation of this Ordinance of which they have knowledge to the City Clerk, or the Mayor City Attorney who shall forward such report to the Board. Section 9. Disclosure of Conflict of Interest or Potential Conflict of Interest (f) A public servant, in addition to disqualifying himself or herself from participation in any decision regarding the pecuniary or employment interest of a partner in interest, shall make known the existence of the relationship and the interest by filing, with the City Clerk Attorney a written disclosure of the relationship and the nature and extent of the conflict of interest involved. Section 10. Unauthorized Outside Employment Page 16 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 17 of 27 (c) (2) Before engaging in outside employment, employees shall have the written approval of their department heads or designee in emergency situations. Section 11. Prohibited Conduct, and Other Abuses or Misuses of Position (a) (1) intentionally granting or making available to any person any special consideration, treatment, advantage, or favor beyond that which it is the general practice to grant or make available to the public at large; (2) intentionally requesting, using or permitting the use of any publicly-owned or publicly- supported property, vehicle, equipment, labor, or service for the personal convenience or the private advantage of oneself or any other person, except as otherwise allowed by law or as authorized by the City Manager; (3) knowingly participating in the deliberation of or voting on any matter involving personal financial or personal interest, or where the public servant has an interest which is materially adverse to the applicant or persons affected by the outcome of the matter; (4) engaging in private employment with, or rendering services for, any private person who has business transactions with the City, unless employee has made full public disclosure of such employment or services and received approval of their supervisor or the City Manager; (6) accepting any gift, whether in the form of money, thing, favor, loan, or promise, that would not be offered or given to the public servant if the individual were not a public servant, that would thereby cause the public servant to place themself in a position in which the giver of the gift could expect special consideration or in which the public could reasonably assume that special consideration is being given. Thus, the public servant should be firm in refusing gifts, favors, or gratuities, large or small, which can, in the public mind, be interpreted as capable of influencing his or her judgment in the discharge of his or her duties. accepting any gift, whether in the form of money, thing, favor, loan, or promise, that would not be offered or given to the employee if the individual were not an official or employee; (7) intentionally disclosing any confidential information concerning any official or employee, or any other person, or any property or governmental affairs of the City, without prior formal authorization of the governing body; (8) intentionally using or permitting the use of confidential information to advance the financial or personal interest of the individual or any other person; (9) ordering any goods and services for the City without prior official authorization for such an expenditure. (10) intentionally useing his or her superior position to request or require an employee to: Page 17 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 18 of 27 (11) A City Council Member public servant shall not draw per diem or expense monies from the City to attend a seminar, convention, or conference and then fail to attend the seminar, convention, or conference without refunding the pro-rata unused per diem or expense monies to the City. (12) intentionally violating any provision of the City Charter which prescribes the conduct of a public servant. (c) No public servant shall falsely represent his or her personal opinion to be the official position of the City, and no public servant shall falsely represent his or her personal opinion to be the official position of any board or City administrators staff. This subsection shall not apply to: (i) Fulfilling the responsibilities of their offices or in statements of elected officials made in the course of running for election to office; (ii) Nor shall it apply to the professional opinions of City officers or employees rendered in the course of performing their duties, provided that such opinions are clearly identified as professional opinions. (d) All public servants have a fiduciary duty to use City fiscal and human resources in a manner which advances the public interest, and to refrain from using City resources for their personal benefit; therefore, public servants are prohibited from intentionally using City resources in any manner which violates any applicable law or policy, and are expressly prohibited from using any City resource to obtain any personal benefit. (e) No public servant shall intentionally use his or her official authority or position to influence or interfere with or affect the results of any election, nor to solicit or receive contributions from City employees in connection with any City election. (f) No public servant shall intentionally suppress any public document, record, report or any other public information available to the general public because it might tend to unfavorably affect their private financial, personal, or political interest. (k) No public servant shall, while in the course and scope of their duties, engage in any kind of behavior towards another public servant or member of the public that is threatening or abusive in nature.Section 12. Board of Ethics (c) Members of the Board shall be appointed nominated by the Council Member in whose district they reside and the Mayor, at large subject to approval by the Mayor and approved by the Mayor and City Council. Each member appointed to the Board shall be a resident of the electoral district for which they are nominated. An appointment to fill a vacancy on the Board shall be made by the Mayor and approved by the City Council in the same manner. (d) The Board shall elect one (1) of its members to serve as chairperson and vice chairperson of the Board. Page 18 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 19 of 27 (e) Board members shall serve staggered terms of no more than three 93) years consistent with the term of the elected official who nominated them to the board. A member shall hold office until a member’s successor is appointed by the Mayor and City Council. An appointment to fill a vacancy on the Board shall be made by the Mayor and approved by the City Council. Section 13. Duties and Powers of the Board (a) (1) develop and adopt written procedural rules, by-laws and rules of procedure which rules shall subject to the approval of the Mayor and city Council, and be filed with the City Clerk; and (3) conduct hearings as needed to hear and decide specific cases in which a violation of this Ordinance is alleged, whether such cases arise from a complaint or are. All cases to be investigated by the City Attorney or outside counsel and heard by the Ethics Board regarding alleged violations of this Ordinance as a result of the conduct of individuals must be initiated by the filing of a written complaint in accordance with the procedure as set forth in Section 17 below. Other actions relating to issues of policy such as questions as to whether this Ordinance is being violated by City action may be brought by the request of anyone or on the Board’s own motion; and (8) when necessary, retain outside legal counsel and other experts as needed after solicitation of recommendations from the City Attorney (unless the need to retain outside counsel is caused by a conflict involving the City Attorney’s Office), and upon approval by the governing body of a contract for services approved as to form by the City Attorney. (b) (1) (ii) (2) respond, as it deems appropriate, to requests for confidential advisory opinions; the Board may decline to render an opinion in response to any request for an advisory opinion; and Section 15. Who May Request Board Action (a) Any person may file a request for Board action with the City Clerk, either personally or on behalf of an organization or governmental body, and may request of the Board an ethics opinion, whether a formal opinion or an confidential advisory opinion, regarding the propriety of any matter or matters to which the person is or may become a party; and any decision maker, with the consent of a prospective appointee, may request of the Board an ethics opinion regarding the propriety of any matter to which the public servant, prospective public servant or former public servant is or may become a party. (b) Any request for Board action shall be in writing, and shall be signed by the person making the request, and shall comply with Section 17 below. Section 16. Limitations on Board’s Power The Board does not have the authority to reverse or otherwise modify a prior action of the Mayor, governing body, or an officerial or employee of the City. If the Board finds a prior action of the Mayor, the governing body, officer or employee to have been ethically improper, the Board may advise the appropriate party or parties that the action should be reconsidered. Upon such advice by the Page 19 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 20 of 27 Board, the action shall should be reconsidered by the appropriate person or public body. If the Board determines an existing City contract to be ethically improper, after such determination and advice from the Board, the City may void or seek termination of the contract if legally permissible. The Board may refer a matter to the City Attorney or outside counsel for review and consideration for appropriate action. Upon completion of review and consideration, the City Attorney’s Office or outside counsel shall report its findings to the Board. Section 17. Procedures for Hearing Complaints (b) A complaint shall specify the provisions of this Ordinance alleged to have been violated and facts alleged to constitute the violation. (c) Every ethics complaint filed shall contain the following statement: “I have read the complaint and aver that the facts contained therein are true to the best of my knowledge and belief and I am aware that the Ethics Ordinance that created the Ethics Board authorizes the Board to impose penalties for filing a frivolous complaint including without limitation, dismissal of the complaint, payment of costs associated with the handling and processing of the complaint, and/or all other penalties applicable under the law.” (cd) Upon receipt of such a complaint, and until an investigation of the complaint is concluded, all matters regarding the investigation, facts of the matter giving rise to the complaint and status of the investigation shall not be disclosed and shall be kept in confidence. Neither the Ethics Board, City Council or any other Board or Commission shall entertain public comment, place the matter on its agenda, or entertain discussion of the issue until the report of investigation is delivered to the Ethics Board for its consideration and the Ethics Board makes a final determination or forwards its report to the City Council for a final determination. (e) Upon receipt of such a complaint, but in any event not later than five (5) working days after receipt, the City Clerk shall acknowledge receipt to the complainant(s), and forward the complaint simultaneously to the Board, the person who is complained against and the City Attorney. In the event that the subject of the Complaint is a City Council member or the Mayor, the City Attorney shall be recused and outside counsel will be retained for investigation of the Complaint. Outside counsel shall be retained based on recommendation of the City Attorney subject to approval by the Chairman of the Ethics Board and the City Manager (df) The City Attorney or outside counsel shall provide the Board with a preliminary written analysis of the complaint no later than thirty (30) days from the date the complaint is filed with the City Clerk. (g) During any investigation and during any hearing which is conducted to determine whether a violation of this Ordinance has occurred: (fh) The following principles shall apply regarding evidence in connection with hearings conducted by the Board: Page 20 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 21 of 27 (gi) The Board, in addition to its other duties and powers, may: (3) request order testimony to be taken by deposition before any individual who is designated by the Board and, in such instances, to compel testimony and the production of evidence to the extent it is otherwise lawfully authorized to do so; and (4) requireest any person to submit in writing such reports and answers to questions relevant to the proceedings as the Board may prescribe, such submission to be made within such period and under oath or otherwise as the Board may determine; and (hj) The person complained against shall have thirty (30) days from the date of receipt of the complaint from the City Clerk to submit a written response prior to the Board deciding whether to hold a hearing. (ik) Any person whose name is mentioned or who is otherwise identified during a hearing and who, in the opinion of the Board, may be adversely affected thereby, may, upon request of the person or a representative of the person, or upon the request of any member of the Board, appear at the hearing to testify on his or her own behalf or have a representative appear to so testify, and the Board may permit any other person to appear and to testify at a hearing. (jl) Upon request of the accused, on its own motion, or upon request of the City Attorney, the Board shall be authorized to issue subpoenas to compel the attendance of necessary witnesses. (km) Within thirty (30) days, following receipt of the City Attorney’s analysis, the Board shall review and consider the complaint and the City Attorney’s analysis, and, if a hearing is to be held, shall set a date certain for the hearing to take place within thirty (30) days of said review by the Board, unless the accused petitions for and the Board consents to a later date. (ln) As soon as practicable after giving due consideration to a complaint, or, if a hearing was held, after the hearing, the Board shall take any action or combination of actions which it deems appropriate and which it is lawfully empowered to take, including, but not limited to the following: (4) (ii) request the City Attorney or outside counsel to investigate the complaint and report all findings back to the Board; or Section 18. Those Subject to Removal Only by the Governing Body (c) (1) The accused official must be given at least thirty (30) days reasonable notice of the hearing date. (2) The Board is not bound by the rules of evidence of the Official Code of Georgia shall apply to the hearing. All evidence, including certified copies of records and documents which the Page 21 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 22 of 27 governing body considers shall be fully offered and made part of the record in the case. Section 19. Ex Parte Communications (a) After a complaint has been filed and during the pendency of a complaint before the Board, no member of the Board may communicate directly or indirectly with any party or other person about any issue of fact or law regarding the complaint, except that (a)1.the members of the Board may obtain legal advice from the City Attorney and may discuss the complaint with their any staff provided to the Board by the governing authority; and (b)2.the members of the Board may discuss the complaint at a lawfully conducted meeting only; and 3. if any person attempts to communicate with a Board member regarding the pending complaint, the Board member shall report the substance of the communication to the Board on the public record at the next meeting or hearing of the Board. (b) No Board member shall undertake an independent investigation of any complaint or matter before the Board. Section 20. Confidentiality of Board Information No member of the Board nor any public servant who has access to any confidential information related to the functions or activities of the Board shall divulge that information to any person not authorized to have it. The identify of a person w ho requests a confidential advisory ethics opinion is confidential, as is information describing or pertaining to any organization mentioned if the disclosure of the information could lead to the disclosure of the identity of the person requesting the confidential advisory opinion. Section 21. Wrongful Use of Ethics Board The purpose of the Board of Ethics is to endeavor to maintain a high standard of ethical behavior by City officials, employees and other public servants. This will be most effective when city officials, employees and other public servants and citizens work together to set and maintain high ethical standards. Complaints directed to the Board must be based on fact and have the intent to improve the ethical climate of the City. Individuals directing unfounded, frivolous, false or politically motivated Complaints to the Board of Ethics may be subject to penalties including but not limited to dismissal of the Complaint, public reprimand, criminal prosecution for perjury, and/or payment of costs associated with the handling and processing of the Complaint. Other penalties may be imposed by the Ethics Board for the wrongful use of the Code of Ethics. Page 22 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 23 of 27 Section 22. Wrongful Use of the Code of Ethics (a) A wrongful use of the Code of Ethics shall occur if and when a frivolous or false complaint is filed in a negligent, reckless or purposeful manner without a basis in law or fact and for a purpose other than reporting a violation of this Code. A person has not filed a frivolous complaint if he/she reasonably believes that facts exist to support the claim and either reasonably believes that under those facts the complaint is valid under this Code or acts upon the advice of counsel sought in good faith and given after full disclosure of all relevant facts within his/her knowledge and information. (b) In deciding if a complaint is a "Wrongful use of the Code of Ethics", the Ethics Board may also consider: (1) the timing of the complaint with respect to when the facts supporting the alleged violation became known or should have become known to the complainant, and with respect to the date of any pending election in which the respondent is a candidate or is involved with a candidacy, if any; (2) the nature and type of any publicity surrounding the filing of the complaint, and the degree of participation by the complainant in publicizing the fact that a complaint was filed with the Ethics Board; (3) the existence and nature of any relationship between the respondent and the complainant before the complaint was filed; (4) if respondent is a candidate for election to office, the existence and nature of any relationship between the complainant and any candidate or group opposing the respondent; (5) any evidence that the complainant knew or reasonably should have known that the allegations in the complaint were groundless; and (6) any evidence of the complainant’s motives in filing the complaint. Section 23. Waiver of Confidentiality A person who makes or purports to make public the substance of or any portion of an advisory opinion requested by or on behalf of that person is deemed to have waived the confidentiality of the request for an advisory opinion and of any records obtained or prepared by the Board in connection the request. Section 22. Statute of Limitations No action may be taken on any complaint which is filed later than one (1) year after a violation of this Ordinance is alleged to have occurred, and a complaint alleging a violation must be filed within six (6) months from the date the complainant(s) knew or should have known of the action alleged to be a violation. The discovery rule shall apply. Page 23 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 24 of 27 Section 234. Penalties Section 245. Penalties Cumulative Section 256. Liberal Construction of Ordinance Section 267. Severability .Section 278. Effective Date APPENDIX OF DEFINITIONS (16) Discovery rule means, the statute of limitations does not start to run until the date of the discovery of the violation or wrongful act, or the date which, by the exercise of reasonable care and diligence, the complaining party should have discovered the violation or wrongful act 167 Employee means a person, other than an elected public officer, employed and paid a salary to work for the City, whether under civil service or not, whether full-time, part-time, or on a contract basis, and including those officially selected but not yet serving; and, for purposes of establishing ethical obligations under this Ordinance and for no other purpose, the term “employee” includes volunteers, notwithstanding the fact that they are unpaid. (18) Frivolous means a claim or complaint which is clearly insufficient on its face, does not controvert the material points of the opposing party and is presumably interposed for mere purposes of delay or to embarrass the opponent. A claim or defense is frivolous if a proponent can present no rational argument based upon the evidence or law in support of that claim. (179) Gift means any benefit or thing or act of monetary value which is conveyed to or performed for the benefit of a public servant or a partner in interest, including any advance, award, contract, contribution, deposit, employment, favor, forbearance, gift, gratuity, honorarium, loan, payment, service, subscription, or the promise that any of these things or acts of value will be conferred in the future, if such thing or act of value is conferred or performed without the lawful exchange of consideration which is at least equal in value to the thing or act conferred or performed. (1820) Governing body means the elected officials who comprise the legislative body of the City, as defined by the City Charter. (219) Immediate family means: (202) Interest means any personal benefit accruing to a public servant or the public servant’s partner Page 24 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 25 of 27 in interest, whether in the public servant's own name or the name of any person or business from which the public servant is entitled to receive any personal benefit, as a result of a matter which is or which is expected to become the subject of an official action by or with the City. (213) Loan means a transfer of money, property or anything else of ascertainable monetary value in exchange for an obligation, conditional or not, to repay in whole or in part. (224) Materially adverse means an opposing or contrary position of substantial or important a matter as to influence the party in question. (25) Matter means, unless the context of this Ordinance indicates otherwise, any act, action, agenda item, allegation, application, amendment, auction, bill, business, case, charge, claim, consideration, contract, controversy, decree, deed, deliberation, discussion, hearing, issue, lease, license, measure, offer, order, ordinance, permit, personnel action, petition, policy, presentation, procedure, privilege, proceeding, project, proposal, proposition, purchase, recommendation, regulation, rental, request, resolution, sale, subject, transaction, use, variance or other discretionary choice pending before a City decision maker when a public servant or a partner in interest has a personal interest in the outcome of the decision, or the decision may result in a personal benefit to a public servant or a partner in interest. (236) Ministerial action means a simple and definite action or function imposed by law where no exercise of discretion or judgment is required. (247) Negotiating concerning prospective employment means one or more discussions between a public servant and a potential employer other than the City concerning the possibility of the public servant or a partner in interest considering or accepting employment with the employer, in which discussion(s) the public servant responds in a positive way. (258) Office means any of the following: (269) Officer means any person elected or appointed to hold an office, as defined in the charter of the City. (2730) Official action means any act, action, approval, decision, denial, directive, disapproval, inaction, order, performance, nonperformance, recommendation, vote, or other direct result of a public servant’s exercise of discretionary authority in connection with the public servant’s public position. (2831) Official duty means any official action or ministerial action which a public servant is obligated or authorized to perform by virtue of being a public servant. (2932) Official records means any minutes, papers, documents, completed forms, or other records maintained by a public agent for the purpose of fulfilling the disclosure requirements of this Ordinance. (302) Organization means, unless the context indicates otherwise, any non-profit business other than an individual or governmental agency. Page 25 Special Called Work Session of the Milton City Council Thursday, August 9, 2007 26 of 27 (313) Partner in interest means, when used in this Ordinance in connection with a public servant, as in the phrase “a public servant or a partner in interest” any and all of the following: (324) Reasonable means fair, proper, equitable and just under the circumstances. (335) Personal benefit means any benefit which is offered or received, or perceived to be offered or received, primarily for the purpose of influencing the manner in which a public servant performs or refrains from performing an official action, so that an attempt is made to induce the public servant, or the public servant is induced, to act in favor of some interest other than the public interest on the basis of an expectation or hope that the public servant or a partner in interest of the public servant will obtain some private gain by acting against the public interest; provided, however, that the term “personal benefit” within the meaning of this Ordinance does not include any of the following, which, although they may benefit individual public servants, are deemed to be primarily public benefits rather than personal benefits: (346) Personal interest means a direct or indirect interest having value peculiar to a particular individual or group, whether the value is pecuniary or non-pecuniary, which value may accrue to such individual or group or result in such individual or group deriving or potentially deriving a personal benefit as a result of the approval or denial of any ordinance, resolution, order or other official action, or the performance or nonperformance thereof, by a public servant, and which interest is not shared by the general public.. (357) Public servant means any member of the governing body or of any City agency, board, commission, committee, or other voting body, and any agent, department head, employee, official, supervisor, volunteer, or other person, whether elected or appointed, or legally authorized by contract or in any other manner to act in any capacity under the authority of the City. (368) Relative means a person who is related to an official or employee (whether by marriage, lineal descent or adoption) as spouse, parent, child, brother, sister, aunt, uncle, niece, nephew, grandparent, grandchild, parents-in-law, son-in-law, daughter-in-law, , brother-in-law or sister-in-law. (379) Volunteer means an individual who is permitted by the City, or by a person authorized to act on behalf of the City, to assist public servants in performing any kind of official duty or action without any expectation of receiving compensation. (3840) Voting body means the governing body and any other City authority, board, commission, committee, council or group, regardless of whether its function is legislative, administrative, quasi- administrative or quasi-judicial or any combination thereof, which must act as a body on the basis of a vote of some or all of its members. Presentation of Budget for General Fund and Capital Improvement Fund for Year 2008. Page 26 Special Called Work Session of the Milton City Council Thursday, August 9,2007 27 of 27 City Clerk Marchiafava said there is no Public Comment. * A short break was called at this time. Work Session reconvened. Finance Director Wolfe: * Presented Mayor and Council with a CD containing the budget. Q & A with Finance Director, Mayor and Council about budget. $30Q,000 to allocate. Discussion about grants. Discussion about recycling. Council to get their thoughts to the Finance Director via ernail with copies to all. After no further business, the Work Session adjourned at 10:lO pm Date Approved: October 4,2007 ?/ Joe hckwdd,., Mayor Page 27