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2004-10-19 Regular CC MinutesMINUTES OF THE REGULAR CITY COUNCIL MEETING TUESDAY- - OCTOBER 19, 2004- -7:30 P.M. Mayor Johnson convened the meeting at 8:00 p.m. ROLL CALL - Present: Councilmembers Daysog, Gilmore, Kerr, Matarrese and Mayor Johnson - 5. Absent: None. AGENDA CHANGES None. PROCLAMATIONS, SPECIAL ORDERS OF THE DAY AND ANNOUNCEMENTS (04 -551) Proclamation honoring Gold Medalist Mikhaila Rutherford of Alameda on her outstanding performance at the September 2004 Paralympics games held in Athens, Greece. Mayor Johnson read and presented the proclamation to Mikhaila Rutherford. (04 -552) Proclamation declaring the week of October 17 through 23 as National Business Women's Week as sponsored by Isle City of Alameda Business and Professional Women. Mayor Johnson read and presented the proclamation to Phyllis Reaney and Kimberlee Garfinkle representing Isle City of Alameda Business and Professional Women. (04 -553) Proclamation declaring October 2004 as Domestic Violence Awareness month. Mayor Johnson read and presented the proclamation to Pastor Gretchin Rotz. Pastor Rotz provided handouts to Council and discussed domestic violence prevention activities in the community. CONSENT CALENDAR Mayor Johnson announced that the recommendation to accept the work of Spencon Construction [paragraph no. 04 -555] was removed from the Consent Calendar for discussion. Councilmember Matarrese moved approval of the remainder of the Consent Calendar. Regular Meeting Alameda City Council 1 October 19, 2004 Councilmember Kerr seconded the motion, which carried by unanimous voice vote - 5. [Items so enacted or adopted are indicated by an asterisk preceding the paragraph number.] ( *04 -554) Minutes of the Special City Council Meeting, the Special Joint City Council and Community Improvement Commission Meeting, and Regular City Council Meeting held on October 5, 2004; and the Special City Council Meeting held on October 6, 2004. Approved. (04 -555) Recommendation to accept the work of Spencon Construction, Inc. for repair of Portland cement, concrete sidewalk curb, gutter, driveway and minor street patching, Fiscal Year 2003/2004, No. P. W. 07- 03 -15. Richard Neveln, Alameda, noted that the City of Oakland has a "hire Oakland" policy; suggested contracts include provisions for hiring and training people in need of employment. Councilmember Kerr moved approval of the staff recommendation. Councilmember Gilmore seconded the motion, which carried by unanimous voice vote - 5. ( *04 -556) Resolution No. 13772, "Approving Tentative Parcel Map No. 8474 (2430 -2490 Mariner Square Loop)." Adopted. ( *04 -557) Ratified Bills in the amount of $2,146,725.53. REGULAR AGENDA ITEMS (04 -558) Resolution No. 13773, "Appointing Michael K. Rich as a Member of the Civil Service Board." Adopted. Councilmember Matarrese moved adoption of the resolution. Councilmember Gilmore seconded the motion, which carried by unanimous voice vote - 5. The City Clerk administered the Oath of Office and presented Mr. Rich with a certificate of appointment. (04 -559) Resolution No. 13774, "Reappointing Sandre Swanson as a Member of the Golf Commission." Adopted. Vice Mayor Daysog moved adoption of the resolution. Regular Meeting Alameda City Council 2 October 19, 2004 Councilmember Matarrese seconded the motion, which carried by unanimous voice vote - 5. The City Clerk administered the Oath of Office and presented Mr. Swanson with a certificate of appointment. (04 -560) Resolution No. 13775, "Appointing Rebecca L. Kohlstrand Parsons as a Member of the Planning Board." Adopted. Councilmember Gilmore moved adoption of the resolution. Vice Mayor Daysog seconded the motion, which carried by unanimous voice vote - 5. The City Clerk administered the Oath of Office and presented Ms. Kohlstrand Parsons with a certificate of appointment. ORAL COMMUNICATIONS, NON- AGENDA (04 -561) Sandra Williams, Alameda, discussed a police incident involving her grandson; urged the Council to hold an open forum. Mayor Johnson requested that the City Manager meet with Ms. Williams. (04 -562) Richard Neveln, Alameda, stated it has begun to rain and bus shelters have not been installed; more than six shelters should be installed; noted a shelter across from Mastick Senior Center is damaged. Mayor Johnson requested that staff follow up on the damaged shelter. (04 -563) Alan Lau, Alameda, submitted a handout to Council; requested that the Council address the final map for 43 County Road at the next Council meeting. Mayor Johnson inquired whether the matter could not be on the next meeting because of the City's notification requirements, to which Mr. Lau responded in the affirmative. Mayor Johnson inquired whether permits expire and what would happen if the matter could not be addressed on the next agenda. Mr. Lau responded the permits expire and the neighbor wants to cancel the easement. Regular Meeting Alameda City Council 3 October 19, 2004 Councilmember Kerr stated one deadline is November 21; the second Council meeting in November would be on the 16th; inquired whether the matter could be addressed at the November 16 meeting. Mr. Lau responded in the negative. The Acting Public Works Director stated Mr. Lau needs to complete a couple of items before the City can proceed; Mr. Lau submitted escrow material in lieu of a bond, which is being reviewed by Risk Management; in addition, Risk Management needs a receipt of the escrow agreement between Mr. Lau and the escrow company; once escrow is approved, Public Works can present a staff report to Council; Mr. Lau has been coordinating with the City for two and a half years and has had two extension on his final map; staff is ready to proceed; Mr. Lau has met all conditions and can begin construction once the map is recorded. Mayor Johnson inquired whether Mr. Lau could work with the Public Works Department to have the matter move forward, to which Mr. Lau responded in the affirmative. Councilmember Kerr requested that staff talk to the neighbor who is threatening to cancel the easement agreement. (04 -564) John Roake, Alameda, stated names on the ballot are in random order; the Registrar of Voters office changed the order; a great wrong was done to Councilmember Gilmore; the article in the Journal stated nothing could be done. Mayor Johnson stated that she concurs with Mr. Roake and was appalled; the City Clerk's office has written communications about the ballot and tried to see if it could be corrected after the error was discovered; that she does not understand how the inexcusable error could occur; Councilmember Gilmore went from first on the ballot to last; thanked Mr. Roake for his comments. Councilmember Kerr questioned why the order could not be corrected on the touchscreen units. The City Clerk stated the proof approved on September 7 was the last communication from the Registrar's office and was in the correct random order; the touchscreen units are already being used for early voting and voters might be confused if the touchscreen order differs from the sample ballot. Vice Mayor Daysog inquired whether someone from the Registrar's office called about the ballot order. Regular Meeting Alameda City Council 4 October 19, 2004 The City Clerk responded that the candidates' names were provided to the Registrar in the order filed; once the random alphabet was drawn, the names were submitted in random order; any miscommunication about the order [in August] would have been caught when the proof was approved [September 7] ; after approving the proof, the Clerk's office received no further communications from the Registrar's office about the order being changed and had no idea the ballot did not list candidates in random order. Councilmember Matarrese inquired whether the Registrar's office provided an explanation why the change was made and if the Registrar's office conducted an investigation. The City Clerk responded the staff person responsible for changing the order at Registrar office was identified. Mayor Johnson stated the electoral process is important; there is a process; to have a clerical error occur so easily at the Registrar's office is difficult to understand. Councilmember Matarrese stated the City should officially ask for the Registrar's corrective and preventive action; the City has the answer that nothing be done to correct the mistake at this point; however, he wants to know what will be done to prevent the mistake from happening again; questioned why the Registrar would make a phone call when the list is in writing; fax or e -mail could be used; in order to determine what will be done to prevent an error from occurring again, an investigation needs to be completed to determine why it happened. The City Manager suggested that a letter, signed by the Mayor and copied to the Board of Supervisors, be sent to the Registrar. Councilmember Kerr stated that she could not imagine approval not being in written form. Mayor Johnson stated it was done in written form and then the wrong list was used. The City Clerk stated the final proof was in written form and without any notification, the Registrar's office changed the ballot to list the candidates in the order they filed. COUNCIL COMMUNICATIONS (04 -565) Councilmember Gilmore stated that the Mayor, Library Director and she took a tour of the new Santa Clara library last Regular Meeting Alameda City Council 5 October 19, 2004 week; the library was built by Amoroso Construction; encouraged other Councilmembers, Library Building Team (LBT) members and the public to visit the library; stated the quality of construction was excellent; Amoroso came in on time and on budget; there has been concern about the Alameda New Main Library barrel vault ceilings because of the look and expense; the Santa Clara library uses barrel vault ceilings to great effect; it looks wonderful; the LBT has done an excellent job in preserving the barrel vault element. Mayor Johnson stated another tour could be arranged for Councilmembers and LBT members. Vice Mayor Daysog stated if the barrel vault ceiling is beautiful, Council should review preserving the element. Mayor Johnson stated the LBT recommended the barrel vault ceiling remain. The Assistant City Manager stated the LBT recommended a short list of add backs, which included the barrel vault ceiling; the recommendations will be provided to Council. Mayor Johnson stated the barrel vault ceiling is not highly noticeable from the exterior, but makes a difference on the inside of the library. (04 -566) Discussion of the Lower Lake Rancheria Koi Nation's proposal to develop the Crystal Bay casino in the City of Oakland at Swan Way and Pardee Drive. Mayor Johnson stated that she requested the matter be placed on the agenda to allow people to express their thoughts on the very large casino that would be close to the north field of the Oakland Airport. Councilmember Matarrese stated Oakland does not need the casino and Alameda, especially, does not need it; there are six avenues of approach into Alameda; the casino would be right on Doolittle Drive between a freeway access and Alameda; the social impact of a large gambling establishment should not be visited upon Alameda; the City should do everything to stop the casino. Councilmember Gilmore concurred with Councilmember Matarrese; stated questionable benefits would accrue to the City of Oakland; the City of Alameda would receive no benefits and would only receive problems that would cost the City in terms of increased traffic and higher public safety costs; that she wants the City to be on record as doing everything to oppose the casino. Regular Meeting Alameda City Council 6 October 19, 2004 Councilmember Kerr stated southbound Interstate 880 traffic would exit High Street; High Street and Fernside Boulevard would become impassible with additional traffic; the airport expansion Environmental Impact Report (EIR) shows level F traffic already at the intersections of Otis Drive and High Street, and Otis Drive and Fernside Boulevard; a casino would have a bad impact on residential neighborhoods in the East End; there is no benefit and a high cost to Alameda; casino use was briefly considered at Alameda Point and was a short -lived suggestion; the public of Alameda was not in favor at said time and there is no reason to expect that the public thinks otherwise now. Vice Mayor Daysog stated Walt Jacobs, a resident of Harbor Bay, said it best: this is just bad and would be terrible for Alameda; the Council wants to try to do everything the City can to stop the casino. Mayor Johnson stated hopefully the community will weigh in on the issue; the Council is starting to take a role immediately; that she personally opposes the project; that she met with tribe representatives and expressed that she expects the community would be opposed to the project; the City will oppose the project every step of the way; that she has received some feedback from the community and none of the comments have been favorable. (04 -567) Discussion of Management Practice No. 35 - Use of City Meeting Rooms by Non -City Groups. Councilmember Gilmore stated that she would recuse herself to prevent the appearance of any kind of impropriety since she is wearing two hats on the item. Kate Quick, President of the Alameda League of Women Voters (LWV), stated the League reviewed the current policy on the use of facilities; use by political organizations is a not a prohibition; the City has the right to adopt a new policy; however, the group of Alameda organizations [using the Chambers for a candidates forum] played by the rules and secured appropriate permission for use under the current policy and should not be denied the right to hold the meeting; the rules should not be changed in the middle of the game; the League would be happy to assist the City with formulation of a new policy. Michael Fassler, Alameda, stated that he is concerned about the candidates forum taking place; the majority of the members of some sponsors are not Alameda residents; holding such a meeting in the Chambers gives the appearance that the Council is sponsoring the Regular Meeting Alameda City Council 7 October 19, 2004 forum; a member of one organization, HOMES, is a paid political consultant for a City Council candidate; promoting a campaign is an abuse of the public facility; the forum should not be permitted to take place in the Chambers. Richard Neveln, Alameda, stated the City should charge for use of facilities, whether it is the Council Chambers or a park area; suggested that the City seal be covered and flags be removed when the Chambers is used for non -City functions; stated an increased amount should be charged for use of the video system in the Chambers. Lucy Gigli, Bike Alameda, stated Bike Alameda does not believe the City should pick and choose which groups, beyond extreme groups, should use City Hall. Jon Spangler, Alameda, stated there is nothing wrong with Management Practice 35; the City should not be involved with picking and choosing who should use City facilities, which is censorship; the LWV held a candidates forum at Mastick Senior Center; inquired whether the forum would be questioned if the LWV were sponsoring the forum; stated the City Council and staff should not be asking said type of questions; sedition has been illegal and unconstitutional in the United Stated for a long time; the first amendment guarantees freedom of speech and assembly; Section 6 of the policy states: "The reasons for revocation include, but are not limited to, the need for meetings rooms for City business or to hold a City activity, avoidance or interference with City services, or the occurrence of an emergency. It is not the intention of the City to casually or arbitrarily revoke authorization to use City property after it is granted." Mayor Johnson stated it would be difficult, unfair and inconsistent with the policy to revoke the use request that has been approved; given that the forum is tomorrow night, said action should not be taken; the Management Practice should be reviewed and a Council policy should be adopted; inquired whether the City pays staff to open and close the building; stated if staff is paid, the City is subsidizing groups that have activities in the building; the current policy would allow an individual to have a campaign kick off in City Hall; inquired whether the City would prevent said type of use from happening; stated City Hall should not be available for some of the uses that the Management Practice would allow; having a discussion on ballot measures might be different from having a candidate forum, where candidates are campaigning; there are uses the City should not subsidize; the City should not censor; use by extreme groups was mentioned; currently, the City cannot deny requests from extreme groups; the policy language should be Regular Meeting Alameda City Council 8 October 19, 2004 reviewed and tightened up; that she would welcome the LWV's assistance on the matter. Councilmember Matarrese stated the policy is fairly reasonable; the forum will not endorse anyone; the LWV's held a forum at Mastick Senior Center, which is public space; a forum is a worthy use of public space; one of the Presidential debates was held at a public university; the benefit outweighs the liabilities; there are indemnifications and considerations which protect from physical liability; that he does not want a more restrictive policy because of the liability of limiting open government; there are far too many closed activities in government; the City should not slip down said path. Vice Mayor Daysog stated the issue is viewed as a matter of open government and free speech; the argument of not allowing use of the Chambers stifles free speech; there are rules regarding free speech; the need to balance free speech and fair speech is nothing new, especially with respect to the use of public facilities and campaigning; California Government Code Section 8314 prohibits campaigning in public facilities of State and local governments; in 1976, the law was clarified by a court case, Stanson v. Mott, that is recognized as the authoritative word on campaigning in public facilities; the case has three key tests for appropriate use of public facilities for campaigning; the first test has to do with whether the activity or organization is seeking specific electoral change; the second is whether the public agency has clear and explicit rules that allow public use of facilities for campaigning; the third test is whether all sides are included in the course of a political campaign at a public site; HOMES is a political organization; there are not clear enacted rules that allow political organizations to use the Chambers; having an opposing voice, such as Alamedans for Measure A, as a cosponsor would satisfy the third test; Government Code 8314 and Stanson v. Mott were put into place to give citizens confidence that the resources government controls are not put in one hand at the expense of another; the laws and court case are put in place to ensure fair exercise of free speech in public facilities; the right course of action is to deny the permit and to provide time for proponents to rectify the situation in ways consistent with free and fair speech. Councilmember Kerr stated the room use request only shows HOMES is the sponsor; a flyer indicates that the sponsors are: HOMES, Bike Alameda, Alameda Transit Advocates, Urban Ecology, East Bay Housing Organization, Transportation and Land Use Coalition and Greenbelt Alliance; several out of town organizations are sponsoring the forum; only HOMES signed the application; none of the other organizations held the City harmless; inquired whether there was an Regular Meeting Alameda City Council 9 October 19, 2004 error in paperwork; stated that in the past, HOMES has made untrue statements about high density being the solution to affordability; therefore, she views the room request with doubt; other organizations, including out of town organizations, were left off the request; the room use request is inadequate and should not be granted; the Council never approved the policy; the Council should adopt a new policy; rent is not charged for City Hall; recreational facilities charge rent; free use of City Hall is problematic because there are maintenance, heat and light costs to the taxpayers; inquired whether the forum would use the broadcasting equipment. Mayor Johnson stated the policy prohibits use of equipment. The City Manager stated using the equipment would be a violation of the Management Practice. Councilmember Kerr stated the use request is not valid. Mayor Johnson inquired whether staff is paid to unlock and lock City Hall, to which the City Manager responded in the affirmative. Mayor Johnson stated the taxpayers should not have to fund candidates forums; an individual candidate could have a campaign kick off at City Hall; if religious organizations use the facility, there would be a problem with separation of church and state; the policy should be cleared up; there are different rules for recreational facilities and Mastick. The City Manager stated the policy could limit the use of the Council Chambers to legislative bodies, such as the school and hospital boards, the Council, and City boards and commissions. Mayor Johnson stated the public should not subsidize groups or individuals using City Hall. Councilmember Kerr stated the City should not grant free use to other organizations with taxation ability; the City paid rent when it used the School District's facilities. Vice Mayor Daysog stated the City is privileging a political organization with a set of ideas; having a cosponsor with a different perspective would be fair and would make questions balanced. Mayor Johnson stated if the City told groups whom to invite, it would be taking too strong of a role; the City would run into more trouble trying to make things fair, than if a policy were adopted Regular Meeting Alameda City Council 10 October 19, 2004 making certain facilities unavailable for campaign purposes. Vice Mayor Daysog stated that he does not want political campaigning in the Council Chambers; however, court cases allow campaigning to occur in public facilities within certain parameters. Mayor Johnson questioned whether all candidates would have to be invited to be cosponsors if a candidate wanted to hold a kick off party in the Chambers. Councilmember Matarrese noted the policy does not allow food or drink; stated the balance comes from inviting all candidates to the forum; Congressman Pete Stark holds town hall meetings at City Hall; when Congressman Stark is up for reelection, his opponents are not invited to the meetings; inquired whether the City is subject to liability if all sponsoring organizations are not on the room use request. The City Attorney responded that she does not foresee specific liability issues; sponsoring could be providing monetary support or lending their name. Councilmember Matarrese stated that he does not have a problem with candidates providing their viewpoints since all candidates were invited. Mayor Johnson stated the Council should review the policy since taxpayers subsidize use; however, the forum tomorrow should be permitted; canceling so late would be unfair; the Council should create a new policy. Councilmember Kerr stated requesting a hold harmless agreement from one sponsor indicates the City has liability concerns. Mayor Johnson suggested that the City request hold harmless agreements from all sponsors; noted Bike Alameda had a representative present; inquired whether Bike Alameda would sign a hold harmless or provide a proof of insurance. Ms. Gigli, Bike Alameda, responded in the affirmative. Councilmember Kerr stated that she is concerned about out of town organizations, not Alameda organizations; noted candidates will get only certain questions. Mayor Johnson stated the City could not choose to allow groups it likes and prohibit groups it does not like. Regular Meeting Alameda City Council 1 1 October 19, 2004 Vice Mayor Daysog stated the City could require use of the facility only be permitted in a fair and balanced manner. Mayor Johnson stated Vice Mayor Daysog's recommendation would be difficult but could be reviewed. Councilmember Kerr stated campaigning of any kind should not be permitted in the Chambers. Mayor Johnson stated the policy issue should be brought back to Council. Councilmember Matarrese stated the other sponsors should be required to hold the City harmless; the Management Practice governing use of public rooms in the City should be placed on a future agenda. Mayor Johnson suggested staff provide a draft to Council. The City Manager suggested Council provide feedback on amendments to the Management Practice to allow staff to assemble the draft. Councilmember Kerr stated use of City Hall should not be free. Vice Mayor Daysog and Councilmember Kerr noted that they would like the use request denied. Mayor Johnson inquired whether Council could give direction about the use request, to which the City Attorney responded that Council could provide direction to the City Manager regarding revoking approval. Mayor Johnson stated that she and Councilmember Matarrese do not think the use request should be denied; Councilmembers Daysog and Kerr do not think the use request should be permitted. The City Attorney noted the Charter requires three votes for action. Mayor Johnson stated the other sponsors should complete hold harmless agreements and the use request should be amended to list all organizations. (04 -568) Consideration of Mayor's nominations for appointment to the Housing and Building Code Hearing and Appeals Board. Mayor Johnson nominated Edward R. Depenbrock for appointment to the Regular Meeting Alameda City Council 12 October 19, 2004 Housing and Building Code Hearing and Appeals Board. (04 -569) Consideration of Mayor's nomination for appointment to the Housing Commission (Tenant Seat). Mayor Johnson nominated Franklin T. Rash for appointment to the Housing Commission. ADJOURNMENT There being no further business, Mayor Johnson adjourned the meeting at 9:48 p.m. and announced that the next Regular City Council Meeting will be adjourned to Wednesday, November 3, 2004 due to the November 2, 2004 General Municipal Election. Respectfully submitted, Lara Weisiger City Clerk The agenda for this meeting was posted in accordance with Brown Act. Regular Meeting Alameda City Council 13 October 19, 2004