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HomeMy WebLinkAbout2006 09-25 CCM Regular Session MINUTES OF THE PROCEEDINGS OF THE CITY COUNCIL OF THE CITY OF BROOKLYN CENTER IN THE COUNTY OF HENNEPIN AND THE STATE OF MINNESOTA REGULAR SESSION SEPTEMBER 25, 2006 CITY HALL — COUNCIL CHAMBERS 1. INFORMAL OPEN FORUM WITH CITY COUNCIL CALL TO ORDER INFORMAL OPEN FORUM The Brooklyn Center City Council met in Informal Open Forum and was called to order by Mayor Myrna Kragness at 6:48 p.m. ROLL CALL Mayor Myrna Kragness and Councilmembers Kathleen Carmody, Kay Lasman, Diane Niesen, and Mary O'Connor. Also present were Interim City Manager Curt Boganey, Public Works Director /City Engineer Todd Blomstrom, City Attorney Charlie LeFevere, and Deputy City Clerk Camille Worley. Charles Atkinson, 5309 64 ffi Avenue, stated concern with the condition of the City, especially with the upkeep of property. He discussed a home with p arba a piled u to the eaves of the g g p home. He stated the property is still a mess with excessive garbage and poor lawn conditions. He stated he is concerned with the amount of rental property, amount of homes for sale, and un- repaired storm damage. He stated he is considering moving due to the poor conditions. Mayor Kragness stated improvement to the appearance of the City is a long process. She addressed a particular legal matter of the property he discussed. She stated Code Enforcement is doing the best job they can. Councilmember Carmody stated it is considered unconstitutional to restrict the number or location of rental property. Councilmember Lasman moved and Councilmember Carmody seconded to close the Informal Open Forum at 6:51 p.m. Motion passed unanimously. 2. INVOCATION Mayor Kragness offered a prayer as the Invocation. 3. CALL TO ORDER REGULAR BUSINESS MEETING The Brooklyn Center City Council met in Regular Session and was called to order by Mayor Myrna Kragness at 7:00 p.m. 09/25/06 1 4. ROLL CALL Mayor Myrna Kragness and Councilmembers Kathleen Carmody, Kay Lasman, Diane Niesen, and Mary O'Connor. Also present were Interim City Manager Curt Boganey, Public Works Director /City Engineer Todd Blomstrom, City Attorney Charlie LeFevere, and Deputy City Clerk Camille Worley. 5. PLEDGE OF ALLEGIANCE The Pledge of Allegiance was recited. 6. COUNCIL REPORT Councilmember O'Connor stated she attended the Park and Recreation Commission meeting on September 19, 2006, where the Parks Capital Improvement Plan was discussed and that it was extended. She stated the Three Rivers Park District would like to lease the City's land and maintain the regional trails. She stated it was indicated that the Central Garage Salt Storage Building would be completed by November 1 She stated there was also an update given on the Golf Course Capital Improvement Plan funding. Councilmember Lasman stated she attended the District 279 Community Cafd on September 13th, which is an opportunity provided by the District to provide input on the District's direction. She stated the District will be having the Parade of Schools on October P and 5 th which is open to the community in order to showcase improvements made to each of the schools as a result of the bond referendum in 2000. She stated she attended a Block Watch meeting on September 14th, which was a time to visit and hear concerns on the particular neighborhoods. She stated she also attended a dinner with the City Manager candidates on September 15 which was a great way to meet the candidates under a social setting. She stated on September 16 the City Council attended interviews, narrowing the search down to the finalist including Curt Boganey. She stated the process was thorough. She stated on September 19 she attended the Financial Commission meeting concerning language changes on investments and other items, with more information to be submitted to the City Council at a later day. She stated on September 20 she attended the Crime Prevention meeting where two new Officers and the loss of one Officer to be filled later at a later date was discussed. She stated Crime Prevention will also be contributing $1,000 to the Summer Safety Camp which will help to enable the youth program to continue. She stated on September 21" she attended the second Special Events Committee meeting and stated the Special Events Awards evening will be on February 3, 2007. She stated on September 24 she attended the Lions Pancake Breakfast which was a celebration of the Brooklyn Center All School Reunion. She mentioned that Hennepin County has a Small Business and Finance presentation on Thursday, October 9, at 7:00 p.m. at the Library for all entrepreneurs who are interested in starting a new business. Councilmember Carmody stated she attended a few of the same meetings as Councilmember Lasman. She discussed the Housing Commission meeting that was held on September 19 She stated she will distribute the report at the Work Session. Councilmember Niesen stated she attended the quarterly meeting held by the Northwest Suburbs Cable Communications Commission. She stated they tabled the exploration of WI -FI with joint 09/25/06 2 Cities due to business model reasons. She stated they are undertaking their Preliminary Budget and Comcast gave a presentation on the acquisition of Time Warner and new service features. Mayor Kragness read a paragraph regarding the rating of Centerbrook Golf Course that praises the course as the Best Condition Par 3 Course. She congratulated the crew of the golf course. She stated there are some volunteer opportunities in Brooklyn Center including the Housing Commission, Financial Commission, and Charter Commission. She encouraged those interested to call Sharon Knutson at City Hall. 7. APPROVAL OF AGENDA AND CONSENT AGENDA Councilmember Niesen moved and Councilmember O'Connor seconded to table item 9a. City Manager Employment Agreement. Councilmember Niesen stated the hiring of a City Manager is the most important job of a City Council. She stated the City Council made a choice to make an offer to a candidate and she thought the offer would be discussed prior to the offer being presented to the candidate. She stated she does not feel this is the time or the place for the City Council to make a decision on the employment contract of the City Manager. She stated she has not had an opportunity to give her employment g opinion on the proposed em to P p p agreement. She stated time has not been allowed for p Y the City Council to meet and discuss an offer. She stated she was not familiar with the contract; however she made effort to revise the City Manager review form in which she was unsuccessful. She stated she was unaware of the contract provision of the previous City Manager until recently and would now like to allow time to discuss the matter. She stated to be fair, the item should be tabled for at least 2 weeks and the Council should meet and review the offer made between Karl Nollenber, er g ,PAR Group and Mr. Boganey, and decide by consensus what Council wanted to offer to their first choice candidate. Councilmember O'Connor agreed that the proposed contract should be fully discussed. Councilmember Carmody stated it is important to keep it on the agenda and a convincing argument has not been made to remove it from agenda. Mayor Kragness, Councilmember Lasman, and Councilmember Carmody voted against the same. Motion failed. Councilmember Carmody moved and Councilmember Lasman seconded to approve the consent agenda and agenda as amended with the removal of the Brewer and Brew Pub Off -Sale Malt Liquor License included in Item No. 7b. from the Consent Agenda to Council Consideration Item No. 9b. and amendments to the September 11, 2006, Regular Session and September 11 g p , 2006, Work Session minutes as discussed at the Study Session. The following consent items were approved: 7a. APPROVAL OF MINUTES 1. September 11, 2006 — Study Session 2. September 11, 2006 — Regular Session 3. September 11, 2006 — Work Session 4. September 13, 2006 — Special Session 5. September 16, 2006 — Special Session 09/25/06 3 7b. LICENSES COMMERCIAL KENNEL Gentle Touch Animal Sanctuary 4900 France Ave N MECHANICAL ELK Mechanical HVAC Inc 6361 Sunfish Lake Ct., Ramsey Gopher Heating & Sheet Metal, Inc. 12330 Ottawa Ave, Savage Snell Mechanical Inc. 8850 Wentworth Ave So, Bloomington SIGNHANGER Albrecht Sign Co., Inc. 12437 Magnolia Cir NW, Coon Rapids Apparently Graphic, Ltd. 7420 West Lake Street, St. Louis Park RENTAL Renewal 3007 68 Ave N (Single Family) Kao Vang NONE 5548 Dupont Ave N (Single Family) John Lindahl ASSAULT 5548 Dupont Ave N (Single Family) Dion Properties, Inc. ASSAULT (There were no calls for service for the following) 5332 Lilac Drive (Single Family) Mark Lundberg 5400 Sailor Lane (Single Family) Duane Christiansen 5925 Washburn Ave N (Single Family) Cheng Lor Initial (There were no calls for service for the following) 3713 54 Ave N (Single Family) Yer Yang 5730 Northport Dr (Single Family) Tuyet Le Motion passed unanimously. Councilmember Niesen moved and Councilmember O'Connor seconded to move Item No. 9a. to the end of the agenda. Mayor Kragness and Councilmember Lasman voted against the same. Motion passed. 8. PUBLIC HEARING 8a. AN ORDINANCE AMENDING CHAPTER 35 OF THE CITY ORDINANCES REGARDING THE ZONING CLASSIFICATION OF CERTAIN LAND (EASTERLY OF BROOKLYN BOULEVARD BETWEEN I -94 AND 69TH AVENUE NORTH) Interim City Manager Curt Boganey explained that it is necessary that the property be replatted and that the City Council should not approve the rezoning, rather table for a later date. 09/25/06 4 Councilmember Lasman moved and Councilmember Carmody seconded to open the Public Hearing on An Ordinance Amending Chapter 35 of the City Ordinances Regarding the Zoning Classification of Certain Land (Easterly of Brooklyn Boulevard Between I -94 and 69th Avenue North). Motion passed unanimously. No public input was offered. Councilmember Carmody moved and Councilmember Lasman seconded to close the Public Hearing. Motion passed unanimously. Councilmember Lasman moved and Councilmember Carmody seconded to table to the November 13, 2006, agenda an Ordinance Amending Chapter 35 of the City Ordinances Regarding the Zoning Classification of Certain Land (Easterly of Brooklyn Boulevard Between I -94 and 69th Avenue North). Motion passed unanimously. 9. COUNCIL CONSIDERATION ITEMS 9a CITY MANAGER EMPLOYMENT AGREEMENT This item was moved to the end of Council Consideration Items. 9b. RESOLUTION NO. 2006 -107 ESTABLISHING FEE FOR BREWER AND BREW PUB OFF -SALE MALT LIQUOR LICENSE Mr. Boganey explained that amendments have been made to the Liquor portion of the Ordinance which includes a Brew Pub to be allowed to sell growlers. He stated since the adoption, Surly Brewery has submitted an application for the license. He stated since the license is new, a Resolution has been prepared regarding fees for that license. Councilmember Lasman moved and Councilmember Carmody seconded to adopt RESOLUTION NO. 2006 -107 Establishing Fee for Brewer and Brew Pub Off -Sale Malt Liquor License and License Application for Surly Brewing Company pending fee payment. Motion passed unanimously. 9c. RESOLUTION NO. 2006-108 AUTHORIZING EXECUTION OF A FIBER OPTIC EASEMENT FOR ACCESS COMMUNICATIONS INC. Mr. Boganey stated the City Council authorized a Fiber Optic Agreement to allow installation of fiber optic materials for the City's network. He stated this has been completed and d an reement agreement g has been entered into with Access Communications in order to share the easement and in return Access Communications will provide a one call service to locate the fiber optic line, an annual value of $7,000. 09/25/06 5 Councilmember O'Connor asked if Access Communications would be allowed to install additional materials along the City's in the same easement area. Mr. Boganey responded yes. Councilmember Carmody moved and Councilmember Lasman seconded to adopt RESOLUTION NO. 2006 -108 Authorizing Execution of a Fiber Optic Easement for Access Communications Inc. Councilmember Niesen inquired about the City's fiber optic capacity and if the excess capacity q tY P P Y P Y could be sold to them. Mr. Boganey responded Access Communications would have no interest in the City's fiber optic equipment. There was discussion regarding the previously purchased fiber optic equipment that was to be sold. Councilmember O'Connor inquired about the ongoing maintenance responsibility of the lines. Mr. Boganey responded the City would maintain the City's equipment and Access Communications would maintain their equipment. He also stated that Access Communications will provide the locator for both the City's equipment and their own. Motion passed unanimously. 9d. RESOLUTION NO. 2006 -109 DECLARING A PUBLIC NUISANCE AND ORDERING THE REMOVAL OF DISEASED TREES Mr. Boganey stated it is the recommendation of City staff that the City Council approve the Declaration of Public Nuisance so that the diseased trees can be removed. Councilmember Carmody moved and Councilmember Lasman seconded to adopt RESOLUTION NO. 2006 -109 Declaring a Public Nuisance and Ordering the Removal of Diseased Trees. Councilmember O'Connor inquired about the number of removed trees. She inquired about a tree on Lyndale Ave N that has been marked for some time. Mr. Blomstrom responded that the memorandum included a typographical error in that it should read a total of 148 rather than 147. He explained that there is a possibility that Hennepin County marked the tree in question; however he will research the item. Councilmember O'Connor voted against the same. Motion passed. 9e. RESOLUTION NO. 2006 -110 ACCEPTING WORK PERFORMED AND AUTHORIZING FINAL PAYMENT, IMPROVEMENT PROJECT NO. 2006 -10, CONTRACT 2006 -D 2006 STREET SEAL COATING Mr. Boganey stated the purpose of the Resolution and stated it is a joint effort with several other cities to ensure the best price for this service. He stated the amount of the final payment is $59,657.50 and stated staff recommends approval of the proposed. 09/25/06 6 Councilmember Lasman moved and Councilmember Carmody seconded to adopt RESOLUTION NO. 2006 -110 Accepting Work Performed and Authorizing Final Payment, Improvement Project No. 2006 -10, Contract 2006 -D, 2006 Street Seal Coating. Motion passed unanimously. 9f. PROVISIONAL RENTAL DWELLING LICENSE — 5240 DREW AVENUE NORTH Mr. Boganey explained the proposal and stated the property experienced numerous issues and complaints resulting in ineligibility for a rental license, however he stated the property has been under new ownership and no calls have been received since April 2006. He stated the new owner has been improving the property. He stated a review of the property would occur after six months with eligibility of a non - provisional license after 12 months. Mr. Schumacher responded to Councilmember Lasman's inquiry regarding evicted tenants and stated freeloaders were living on the property and only three tenants who have signed a lease and paid the rent remain in the building. He stated rent will increase after the renovations are complete. He stated he purchased the property for the purpose of development and the property can be left unoccupied until the right tenants are found. He stated he resides in North Minneapolis and will be the manager of the proposed property. Mayor Kragness suggested that Mr. Schumacher get involved in the Association for Rental Management (ARM) group. Councilmember Lasman moved and Councilmember Niesen seconded to approve the application and the Mitigation Plan and Rental License. Motion passed unanimously. 9g. AN ORDINANCE RELATING TO THE LICENSURE OF MASSAGE PARLORS; AMENDING BROOKLYN CENTER CITY CODE SECTION 23 -1712 Mr. Boganey discussed the purpose and history of the Ordinance Amendment and stated the changes discussed by the City Council with regards to Massage Parlors are included in the proposal. Councilmember Lasman moved and Councilmember Carmody seconded to approve first reading of ordinance and set second reading and Public Hearing on October 23, 2006. Councilmember Carmody stated the amendments are to the requirements for a Health Club, not a Massage Parlor. Councilmember Lasman stated it will work better now that the State Building Code in relation to restrooms is included in the City of Brooklyn Center's Ordinance. Motion passed unanimously. 9a. CITY MANAGER EMPLOYMENT AGREEMENT Councilmember Niesen stated it is important to the City that the top official be compensated fairly and because this agreement sets precedence, she investigated the proposed contract, that 09/25/06 7 being the same contract as the former City Manager, Mike McCauley. She stated that her redlined copy of the contract was submitted to the City Council for review. She stated that she is proposing something that is fair and a contract she would approve if the City Council is in agreement. She stated she sought contracts from several neighboring communities for the purpose of comparison. She stated she spoke with the League of Minnesota Cities who emailed her information on hiring the City Manager. She stated disappointment that Mr. Nollenberger was absent from the meeting. Mayor Kragness stated Mr. Nollenberger was instructed to use Mr. McCauley's contract as a basis. Councilmember Niesen discussed the proposed vacation and sick leave and stated she contacted several legal firms regarding the matter, one at her own expense. Mayor Kragness stated the decision can not be made by Councilmember Niesen alone. Councilmember Carmody stated objection to several of Councilmember Niesen's comments and stated disagreement with most of the redlining done by Councilmember Niesen. She stated Councilmember Niesen has objected to several steps of the process for the search for the new City Manager, all of which were given to the City Council on a dateline in advance. She stated surprise that Councilmember Niesen mentioned that this was the most important task of the City Council, however in the past three years the contract of Mr. McCauley was approved; she did not request to review the contract. She stated Councilmember Niesen's argument is not convincing. Councilmember Niesen stated she should have reviewed the contract, however she was learning at the time. She stated the full contract was never supplied with exception of the car allowance and salary portions. She discussed her proposed amended evaluation form for the City Manager. She stated that she collected several opinions on the proposed contract, one of which by another law firm. She stated objection to several portions of the contract and stated reasons for those objections. She stated Brooklyn Center can not afford to pay this generous contract that puts the City at risk. She discussed concern for the sections relating to termination and moral turpitude. She discussed the salary history of the previous City Manager and Mr. Boganey. She stated she would like to review the contract with the City Council, item by item. Councilmember O'Connor agreed with many of Councilmember Niesen's concerns and stated she would like the City Council to walk through each item of the contract. Councilmember Carmody pointed out that other contracts provided for comparison by Councilmember Niesen should also be reviewed. The City Council discussed the following aspects of the City Manager Employment Agreement: Section 1. Employment Councilmember Niesen stated she has no amendments to the paragraphs that precede Section 1 and no changes to Section 1 Employment. She stated she would like to add a section titled: Term of Agreement that states: "the agreement shall terminate on the 26 day of September 2007 and subsequent extension shall be allowed only by a majority vote of the City Council prior to the expiration date." She stated this does not allow for an indefinite contract, however a proactive stance that this contract will be reviewed year to year. Councilmember Carmody stated disagreement and pointed out a section of the St. Louis Park agreement in that the expiration or termination of the contract is discussed. She stated she is not in favor to change this section. Councilmember Niesen discussed the importance of indicating an expiration of the contract. The City Council discussed this section in comparison to those employment agreements of other communities. Councilmember Niesen indicated the importance of including 09/25/06 8 removal for cause in the agreement. The City Council discussed the amount Mr. McCauley received at the time of separation, that being only his regular salary. The City Council discussed termination on malfeasance, moral turpitude, or illegal activity and the lack of it being addressed in the proposed employment contract. Councilmember Niesen and Councilmember O'Connor stated they wish to include language addressing termination on malfeasance, moral turpitude, or illegal activity in the City Manager Employment Agreement. City Attorney Charlie LeFevere stated the contract that the City has had in place for many years is based on a slightly different premise. He stated the idea is that an employer can negotiate every piece it wishes. He stated it is thought by many employers to start off with a more cooperative relationship. He stated with Mr. McCauley's contract, it does not have a tremendous amount of detail. He stated a provision on moral turpitude is not unreasonable; however the term moral turpitude does not have a clear definition and means different things to different people. He stated the proposed contract is predicated on the idea that it is protection for the employee. Councilmember Niesen stated there is sample language addressing termination on malfeasance, moral turpitude, or illegal activity provided by the League of Minnesota Cities and suggested that the City use the language provided by them. Councilmember Niesen read the language as follows: However, in the event employee is terminated because of his or her malfeasance in office, gross misconduct, conviction for a felony, or conviction for an illegal act involving personal gain for employee, then employer shall have no obligation to pay termination benefits. The City Council and Staff discussed severance packages and circumstances of other City employees. Mr. Boganey stated that he believes Mr. McCauley provided a copy of the contract in question to Councilmember Niesen on two different occasions. Councilmember Niesen asked that the language from the League of Minnesota Cities be inserted into the employment agreement. Councilmember Carmody stated she would be in favor of inserting the language if inserted exactly as stated by Councilmember Niesen. Mr. Boganey stated if the City Council wishes to add the language eliminating certain severance benefits if terminated for illegal actions by the City manager, he would agree. He suggested that the City Council direct the City Attorney to negotiate language with the City Manager on this issue. The City Council discussed Section 13d.a. regarding sick leave. Councilmember O'Connor and Councilmember Niesen stated the sick leave should not be paid upon Involuntary Separation. Mr. Boganey stated he would be willing to reach an agreement on this section; however the attorney should be directed to negotiate the language that is acceptable to both parties. Section 2. Duties Councilmember O'Connor stated the language "which are consistent therewith" should be deleted. 09/25/06 9 It was the majority consensus not to amend this section of the employment agreement. Section 3. Discharge of Duties Councilmember Niesen stated the following last sentence "To that end, the Manager will work flexible hours as is necessary to Manager to discharge the duties of his position" should be deleted because it enters into the issue of flextime. Councilmember Carmody stated disagreement with amending the section and pointed out other comparison contracts that have similar language. Councilmember Lasman stated this item does not change the contract in a substantial manner and that only items of importance should be discussed. Section 4. Evaluation Councilmember O'Connor stated she would like to change the date of evaluation from July to September or October so that a complete year of management is reviewed. Mr. Boganey explained that this section of the contract was negotiated and he gave a lot to agree to the proposed language. Councilmember Carmody stated typically an evaluation is around one year, however in a position of City Manager, the evaluation should be done in July. The City Council discussed the salary amount and the history of Mr. Boganey's salary and that his position has changed, allowing for a higher rate of pay. Councilmember Niesen stated the salary and history comparison is important and asked what Mr. Boganey gave up while making 30% more than in the year 2005. Councilmember Carmody stated it is an inappropriate question and stated preference that Mr. Boganey not to answer the question. Mr. Boganey did not answer the question. Councilmember O'Connor suggested that an evaluation be given on the stated date, however not a raise. Mayor Kragness stated a raise is typically involved in an evaluation. Section 5. Participation in Emulovee Benefits There was no discussion on this section of the Employment Agreement. Section 6. Vacation and Holidays Councilmember O'Connor stated preference to delete the third sentence that reads "The Manager may, at Manager's discretion take %2 day increments of vacation leave for an absence from the performance of Manager's duties." Councilmember Carmody stated disagreement and stated the City Manager should be allowed to use a half day of vacation due to his busy schedule. Councilmember Niesen stated the contract indicates that if the City Manager was to work one hour in a given day, he would not be required to use vacation for the remaining seven hours, which he should have to do. Mr. Boganey stated it is the job of exempt employees to make sure certain jobs get performed. 09/25/06 10 He stated he believes the Federal Law indicates that exempt employees may not be required to use vacation for absences that are less than a day. Councilmember Carmody stated there are instances where the City Manager will work off hours and he should be able to use discretion in taking time off. She stated the White Bear Lake contract has similar language as the proposed agreement. Mr. LeFevere stated the language is not intended to give someone free vacation, rather be a limitation on the use of flextime. He stated if the sentence is removed and placed in the flextime area and stated the manager can use flextime, provided if he takes the whole day off, he must use vacation time. He stated this would represent the intent of the contract. It was the majority consensus not to amend this section of the employment agreement. Section 7. Sick Leave Councilmember Niesen stated preference to delete the second paragraph that reads: "Upon leaving the City's employ, for whatever reason, the Manager shall be entitled to payment for all unused sick leave in accordance with the provision of the City's personnel code applicable to nonunion employees." She stated it should be removed because the contract includes enough payments to the City Manager and should not be paid for sick leave. Mayor Kragness stated disagreement. Councilmember O'Connor stated agreement with Councilmember Niesen. Councilmember Carmody indicated that other cities pay for sick leave in comparison contracts and stated objection to removal of the language. Councilmember Niesen stated it should be treated the same as other employees in that a portion of sick leave is paid based on the years of service. She stated the maximum of paid sick leave should be one third of that accrued. It was the majority consensus not to amend this section of the employment agreement. Section 8. Compensation Section 8A. Initial Salary Councilmember O'Connor stated the annual salary should remain at $113,500. Councilmember Carmody stated the annual salary of $115,000 should remain. Councilmember Lasman stated the annual salary of $113,500 was for the Interim City Manager position and his position will change now that he is the City Manager. She stated the agreement is not generous, however it is fair. Councilmember O'Connor asked if Mr. Boganey will hire an Assistant City Manager. Mr. Boganey responded he has been performing the work of two jobs, which has taken him from his family more than he would like, which will not improve a great deal, therefore for the benefit of the City and himself, he will need some assistance. He further explained that he is not 100% certain he would recommend that the position of Assistant City Manager be filled as it exists. He stated assuming an employment agreement is agreed upon, he will look for ways that will result in efficiency and reduced cost in the management structure. He stated this may result in some consolidations. He stated he needs help, however it may not be with an Assistant City Manager position as it currently exists. 09/25/06 11 Councilmember O'Connor stated if an Assistant City Manager is hired, Mr. Boganey's salary should remain at $113,500 with a raise to follow at the time of evaluation. Councilmember Carmody stated objection to amending this section of the employment agreement. It was the majority consensus not to amend this section of the employment agreement in that the salary is listed at $115,000 annually. Councilmember Niesen stated the annual salary should remain at $113,500 until completion of the evaluation. Section 8B. Evaluation and Salary Increases Councilmember Niesen stated the wording in the contracts indicates that increasing compensation should be considered when the City evaluates an employee. She stated preference that the evaluation is given at the end of the year so that the City Council goals are incorporated. Councilmember Carmody explained that the City Manager is supervising employees with salaries over $100,000; therefore his salary should remain at $115,000 until his evaluation. It was the majority consensus not to amend this section of the employment agreement. Mr. Boganey explained that according to the contract, the evaluation would occur in July of each year, with the salary increase at the beginning of the year. Mr. LeFevere explained that after the 2007 salary increase, the timing of the decision is specified in the contract, however the criteria is not. He stated if the City Council deems the performance unacceptable, there would be no increase. He stated if the performance is deemed acceptable, however the City can not afford an increase, there would be no increase. He stated there are no specifications on what the City Council has to do, just the timeframe in which action must take place. Councilmember O'Connor stated the $4,000 increase is a 3.47% increase, which is not consistent with other employees and indicated that it should be 2 %. Councilmember Niesen stated agreement. Section 8C. Personal Auto Usaa_e Councilmember Niesen stated she would like to delete the entire paragraph. Councilmember O'Connor stated agreement. Councilmember Carmody compared the section on car allowance to other contracts from the comparison cities. She stated objection to amending the paragraph. Councilmember Niesen stated the car allowance aspect of this contract is not legal because it is considered double dipping in that he is reimbursed for a car allowance along with mileage. Mr. LeFevere stated this agreement is not the same as Mr. McCauley's in the Car Allowance aspect. He stated the salary is set and does not say it includes the car allowance. He stated it is up to the City Council on how Mr. Boganey should be reimbursed. 09/25/06 12 Councilmember Lasman read from information provided that indicates that the average annual salary for a community the size of Brooklyn Center, not including the car allowance is $110,000. Mr. Boganey stated rather than including a car allowance of $6,000, he agreed to not consider adding a car allowance, however agreeing on an annual salary of $115,000. He stated there is nothing in the agreement that specifically provides consideration for a car allowance, however the salary amount took into consideration that there is no car allowance in the agreement. He stated the personal auto usage in the agreement is for mileage. Councilmember Niesen stated she is troubled b this matter because she recalls the reason son Mr. McCauley's salary increased was due to the car allowance being added to his salary. She stated mileage reimbursement should not have been allowed at the time he was receiving a car allowance. She stated concern that when Mr. Boganey received 95% of Mr. McCauley's salary, a car allowance was included in the salary used. Councilmember Carmody stated when the City Council made an agreement to have Mr. Boganey be Interim City Manager with a salary of $113,500, a car allowance was not discussed. She stated other candidates would have been at comparable salary with or without the car allowance, therefore this agreement is not excessive. Mayor Kragness explained that he receives mileage because he has to travel places for work. Councilmember Lasman explained that if Mr. Boganey is not using his personal vehicle, the City would have to rovide one for his p use, therefore this alternative is less . expensive for the City. Y Mr. Boganey stated he did not insist on a car allowance because there would be an offset in salary. He stated it is all salary to the IRS. It was the majority consensus not to amend this section of the employment agreement. Section 8D. Professional Membership Dues and Professional Subscriptions Councilmember O'Connor stated preference that the section be deleted. Councilmember Carmody stated disagreement and stated the portion of the contract is similar to that of St. Louis Park and White Bear Lake. Councilmember Niesen suggested additional language that states: "in accordance with City policies," so that the City Council can create a policy regarding this matter in the future. It was the majority consensus not to amend this section of the employment agreement. Section 8E. Participation in Professional Trainina/Development Councilmember O'Connor stated preference that the section be deleted. It was the majority consensus not to amend this section of the employment agreement. Mr. Boganey explained that it should be clarified that this language does not give the City Manager authority to spend any amount he wishes on Professional Training/Development, there is a budget in place that the City Manager must follow and the City Council has other means of controlling this spending. 09/25/06 13 Councilmember Niesen stated this is only a matter of limiting things to reasonable limitations. Councilmember Carmody stated that the City Manager includes his attendance in training sessions in the weekly update. Section 10. Expenses Incurred in Performing Duties Councilmember Niesen stated preference that the reference to reimbursement of personal use of his vehicle be deleted. Mayor Kragness explained that the City Manager will fill out an expense report itemizing all of his expenditures. It was the majority consensus not to amend this section of the employment agreement. Section 11. Retirement Benefits Councilmember Niesen stated that the Manager should not be allowed to participate in another pension or retirement fund, other than PERA, to ensure that he does not have a second form of employment. Councilmember Lasman stated the only job the City Council should be concerned with is the one with the City of Brooklyn Center. It was the majority consensus not to amend this section of the employment agreement. Section 12. Discontinuance of Emplovment Relationship Councilmember Niesen stated all the unnecessary verbiage should be deleted. She stated Involuntary Separation does not give the City Manager time to resign. She stated if the City Council were to terminate for cause, resignation should not be an option. Councilmember Carmody stated no change is needed and that it minimizes damage to the City and the City Manager's reputation. Mr. LeFevere stated if language provides for discharge for committing a crime that would not be Involuntary Separation. It was the majority consensus not to amend this section of the employment agreement. Section 12D. Pavment Unon Involuntary Separation — Item (b) Councilmember Niesen stated concern with the indication that 12 full months of full cost of family health insurance would be provided in the case of Involuntary Separation. She stated disagreement with the period of 12 months and stated it should be replaced with six months due to the high cost of health insurance. Councilmember Carmody stated disagreement and stated preference that it remain as presented. Councilmember Lasman stated 12 months of coverage is acceptable, however, she would be willing to reduce it to six months of coverage. Mr. Boganey stated the reduction from 12 months of full cost of family health insurance to six months is acceptable to him. 09/25/06 14 It was the majority consensus to change the 12 months of full cost of family health insurance to six months of full cost family health insurance. Councilmember Niesen stated "until other employment is found" should be included in the clause. Councilmember Lasman stated it is not likely that someone would get themselves set up with a similar position in less than six months. Section 12F. Pavment Unon Voluntary Termination Councilmember Niesen stated the contract should indicate that no sick leave or at the highest of any other employee which is 40% should be paid at the time of Voluntary Termination. It was the majority consensus not to amend this section of the employment agreement. Section 12G. Councilmember Niesen stated the whole provision should be deleted. Councilmember O'Connor stated agreement. Councilmember Lasman stated the provision is protection of both parties and should remain. Mr. LeFevere responded to Councilmember Niesen in that it is not intended to be a waiver of unintentional acts. Councilmember Niesen stated should the City Manager bring forward a lawsuit, this provision indicates that he can seek beyond what is agreed to in the contract. Mr. LeFevere stated if an employee has an unrelated claim, the intent of this language is severance payment and is not intended to be damage for other claims. He stated it is not interpreted to be a payment of another claim. He stated the provision does not expose the City to anything it would not otherwise be exposed to. Councilmember Niesen stated there is no reason to put this provision in the contract, it is only asking for more litigation. Councilmember O'Connor stated agreement. Mr. LeFevere stated the clause is for the protection of the employee and if it is not in the contract, there is no claim they would waive anyway. Councilmember Carmody stated the provision should remain in the contract. It was the majority consensus not to amend this section of the employment agreement. Section 13. Term There was no discussion on this section of the Employment Agreement. Section 14. Indemnification Councilmember Niesen stated the second sentence that reads: "The City shall also defend and hold harmless and indemnify the Manager from all torts, civil damages, penalties, fines, provided the Manager was acting in the performance of Manager's duties" should be deleted. Councilmember Carmody stated disagreement. It was the majority consensus not to amend this section of the employment agreement. Mr. LeFevere stated it is up to the courts to determine if the City Manager were acting in 09/25/06 15 Manager's duties or not. He explained that this is to protect the employee from losing their fortune because of something they did during the job. He stated it is a direct protection for the employee, which would be part of the reason for them to work for the City. Councilmember Lasman stated preference that the section remains as presented. She stated she was glad to know that she would be covered under such a clause if she were acting as a Councilmember. She stated this clause is necessary. It was the majority consensus not to amend this section of the employment agreement. Sections 15 — Section 19. There was no discussion on these sections of the Employment Agreement. Councilmember Carmody moved and Councilmember Lasman seconded to approve the City Manager Employment Agreement as presented with one amendment to Section 131)(b) regarding payment by the City of the full cost of family health insurance, striking 12 full months and replacing with six (6) full months and to leave the language on moral turpitude for discussion at the next Council meeting when the City Attorney and City Manager drafts the verbiage. Councilmember Niesen posed two questions to the City Attorney, 1) is the language in Section 12G more protective or less protective to the City; 2) how is the agreement changed once it is entered into overall. In response to Councilmember Niesen's inquiries, Mr. LeFevere stated he has not been able to think of a way that having the clause in Section 12G. is going to harm the City; however, he stated that he is not infallible and a case could come up that this clause could be of disadvantage to the City. He stated this clause is not for the protection of the City, it is of that of the City Manager. He further explained that the contract is for the purpose of compensation and generally for the benefit of the employee; it defines a relationship. He stated the contract could be amended with the consent and approval by both parties. It was the majority consensus not to amend this section of the employment agreement. Councilmember Niesen and Councilmember O'Connor voted against the same. Motion passed. 10. ADJOURNMENT Councilmember Carmody moved and Councilmember Lasman seconded adjournment of the City Council meeting at 10:49 p.m. M t'on passed unanimously. City Clerk Q May�oy 09/25/06 16