Planning Commission

AGENDA Meeting Location: Sloat Room—Atrium Building Phone: 541‐682‐5481 99 W. 10th Avenue www.eugene‐or.gov/pc Eugene, Oregon 97401 The Eugene Planning Commission welcomes your interest in these agenda items. Feel free to come and go as you please at any of the meetings. This meeting location is wheelchair‐accessible. For the hearing impaired, FM assistive‐listening devices are available or an interpreter can be provided with 48 hour notice prior to the meeting. Spanish‐language interpretation will also be provided with 48 hour notice. To arrange for these services, contact the Planning Division at 541‐682‐5675. MONDAY, SEPTEMBER 25, 2017 – REGULAR MEETING (11:30 AM) I. LEGAL TRAINING Lead Staff: Lauren Sommers, 541‐682‐6049 lauren.a.sommers@ci.eugene.or.us II. WORK SESSION: TRANSPORTATION SYSTEM DEVELOPMENT CHARGES Lead Staff: Dan Kaler, 541‐682‐5216 daniel.l.kaler@ci.eugene.or.us Commissioners: Steven Baker; John Barofsky (Chair); John Jaworski; Elliot Becker; Brianna Nicolello (Vice‐Chair); William Randall; Kristen Taylor  AGENDA ITEM SUMMARY September 25, 2017 To: Eugene Planning Commission From: Alissa Hansen, City of Eugene Planning Division Subject: Legal Training ACTION REQUESTED At this work session, Lauren Sommers from the City Attorney’s Office will provide the Planning Commission with an overview of the public records, public meetings and state ethics law requirements associated with being on the Eugene Planning Commission. BACKGROUND See attachments. ATTACHMENTS A. Presentation Slides: Public Records, Public Meetings, and Ethics: What You Need to Know B. Handout: Boards, Commission & Committees Legal Overview 2017  9/20/2017 ATTACHMENT A Public Records, Public Meetings, and Ethics: What You Need to Know CITY OF EUGENE PLANNING COMMISSION, SEPTEMBER 25, 2017 Public Records The Public Records Law is about transparency. The Public Records Law, generally, requires that the public be given access to records and documents that are created, used, or kept by the City. 1  9/20/2017 Public Records What is a public record? A public record is any record that contains information related to the conduct of the public’s business and that is owned, used or retained by the City. ◦ Includes: agendas, emails, maps, photographs, reports, handwritten notes, etc., whether in physical or digital form. Public Records Who has the right to inspect a public record? Every person has the right to inspect public records that are not exempt from disclosure. ◦ The identity of the requester and the reason for the request are generally not important. ◦ The City must respond to requests within a reasonable period of time. ◦ The City may recoup the reasonable costs of responding to a request. The City has adopted a process and a fee schedule for responding to public records requests. 2  9/20/2017 Public Records Are all public records available for inspection? No. Most public records must be provided when they are requested, but state law exempts certain types of public records from disclosure, including: attorney‐client privileged communications, records related to litigation, records related to personnel discipline, trade secrets, and criminal investigatory material. The City Attorney’s office will work with staff to decide whether requested records are exempt from disclosure. Public Records What are the City’s public records retention obligations, and how does that affect me? ◦ The City is required to store public records for a period of time set by state law. ◦ Records you create (emails, notes, etc.) are public records that must be retained. ◦ Consider creating a separate email address or folder that you only use for city business. 3  9/20/2017 Public Meetings The Public Meetings Law is a transparency law. It requires that decisions by governing bodies be made openly. The Public Meetings Law applies whenever a quorum of the “governing body of a public body” meets to discuss public business. For purposes of city boards and commissions, the public meetings law applies to: 1) a quorum of the entire board or commission and 2) a quorum of a committee tasked with making a recommendation back to the entire board or commission. Think carefully about other instances where a quorum of the Commission might discuss city business (ex. email and social media correspondence). Public Meetings Law What does the public meetings law require? Meetings must be noticed (at least 24 hours in advance, unless it is an emergency) Meetings must (generally) be held within the City of Eugene The meeting site must be accessible to individuals with mobility impairments Minutes of the meeting must be taken (if the meeting is recorded, minutes are not required) The Public Meetings Law is a public access law, not a public participation law. The Public Meetings Law requires that the public be allowed to attend meetings – it does not require that the public be allowed to participate in meetings (via public comment or otherwise). Note that other laws may require public participation under certain circumstances (for example, public hearings are generally required for ordinance adoption and land use decisions). 4  9/20/2017 Public Meetings Law – Executive Sessions Under very limited circumstances, a governing body may meet in private (these meetings are called executive sessions), but the governing body must always come back to open session to make a decision. ◦ Reasons for executive session include: ◦ To consider public records exempt from disclosure (for example, attorney‐client privileged communications) ◦ To consult with the city attorney regarding lawsuits that have been filed or are likely to be filed ◦ To discuss performance evaluations of public employees Members of the news media may attend executive sessions but they may not report on what is said in executive session. Be aware of the parking lot conversation. As a member of the Planning Commission it is unlikely that you will go into executive session – if a need for executive session arises, Planning staff will work with the City Attorney’s office to make sure that the executive session complies with state law. Tips for Running an Efficient and Effective Meeting ◦ Come prepared – read the agenda and packet materials in advance. ◦ Be respectful of other commissioners and the public. Disagreements are fine, but communication should be respectful. ◦ Make sure the public understands any limits on public participation (time limits on public comment, whether public participation will be allowed at all, etc., in advance). ◦ The chair is in charge of the meeting. ◦ It can be helpful for the chair and vice chair to meet with staff prior to the meeting to discuss any potential issues that may arise. This pre‐meeting is not subject to the Public Meetings Law as long as less than a quorum of the board or commission are present. 5  9/20/2017 Ethics in Three Simple Rules ◦ Ethics questions are extremely fact‐specific ◦ This presentation will give you the tools to recognize potential ethics issues ◦ Red Flags ◦ Talk to staff ◦ Ask the City Attorney’s office Ethics Definitions ◦ “Public Official” means: anyone serving the City as an elected official, appointed official, employee or agent, irrespective of whether the person is compensated. ◦ Members of Boards and Commissions are public officials – even though you don’t get paid. ◦ “Relative” means: ◦ Your spouse, parent, stepparent, child, sibling, stepsibling, son‐in‐law or daughter‐in‐law; ◦ Your spouse’s parent, stepparent, child, sibling, stepsibling, son‐in‐law or daughter‐in‐law; ◦ Any individual for whom you have a legal support obligation; ◦ Any individual to whom you provide benefits arising from your public employment (i.e., health insurance) or from whom you receive benefits arising from that individual’s employment ◦ “Relative” does not mean: aunts, uncles, cousins, grandparents, boyfriends or girlfriends ◦ “Member of Household” means: any person who resides with you 6  9/20/2017 Definitions continued ◦ “Business” means: any legal entity operated for economic gain. ◦ “Business” does not mean: government entities, or 501(c) tax‐exempt non‐profits where you or your relative are associated with the non‐profit only in a non‐remunerative capacity. ◦ “Business with which you are associated” means: ◦ Any private business or closely held corporation where you or your relative are a director, officer, owner or employee, or agent; ◦ Any private business or closely held corporation in which you or your relative own or have owned stock, another form of equity interest, stock options, or debt instruments worth $1,000 or more at any point in the preceding calendar year; ◦ Any publicly held corporation in which you or your relative own or have owned $100,000 or more in stock or another form of equity interest, stock options or debt instruments at any point in the preceding calendar year; ◦ Any publicly held corporation of which you or your relative are a director or officer; or ◦ For public officials required to file a statement of economic interest (city councilors, the mayor, planning commissioners, the city manager and the municipal judge), any business that produces 10% or more of that public official’s annual household income. Rule 1: Don’t Use Your Office For Gain You may not use or attempt to use your official position to obtain a financial gain or to avoid a financial loss for you, your relative, or a member of your household IF: ◦ The financial gain or avoidance of financial detriment would not be available BUT FOR the fact that you are a public official. ◦ Except: official compensation; honoraria or plaques worth $50 or less; reimbursement of expenses; unsolicited awards for professional achievement; and gifts otherwise allowed by the ethics laws. ◦ Be SAIF, don’t take that discount! ◦ Cell phone plans 7  9/20/2017 Rule 2: Gifts are Generally Limited to $50 per Year per Giver Rule 2: Gifts are Generally Limited to $50 per Year per Giver Public officials (and their relatives and members of their households) may generally not accept gifts worth more than $50 in a calendar year from sources with a legislative or administrative interest in the decisions made by the public official. Each individual has a separate $50 per year gift limit. Each source has a separate $50 per year gift limit. 8  9/20/2017 Legislative or Administrative Interest “Legislative or administrative interest” means an economic interest, distinct from that of the general public, in any matter subject to the decision or vote of the public official acting in his or her capacity as a public official. ◦ Ongoing coffee and lunch dates. Gifts Not Subject to the Limits ◦ Campaign contributions; ◦ Gifts from your relatives and members of your household; ◦ An unsolicited token or award of appreciation (plaque, trophy, etc.) with a resale value of less than $25.00; ◦ Admission or the cost of food or beverage consumed by you, your relative, or a member of your household, at a reception, meal, or meeting held by an organization where you are representing the City (you are asked to speak at City Club); ◦ Food or beverage consumed by you at a reception where the food or beverage is provided as an incidental part of the reception and no cost is placed on the food or beverage (bad food eaten standing up); ◦ Entertainment provided to you, your relative, or a member of your household that is incidental to the main purpose of another event (no charge for the cellist in the corner); ◦ Entertainment provided to you, your relative, or a member of your household when you are acting in an official capacity while representing the City for a ceremonial purpose (you can stay for the game after you throw out that first pitch); ◦ Anything of economic value that is given as a usual or customary practice of your private business or position as a volunteer with a business or entity and that bears no relationship to your position as a public official (use caution when relying on this exemption). 9  9/20/2017 Rule 3: Declare Conflicts of Interest Conflict of Interest A conflict of interest arises when a public official takes an action or makes a decision or recommendation that could or will create a financial benefit or detriment for the public official, the public official’s relative, or a business with which the public official, or the public official’s relative is associated. ◦ Actual Conflict = the financial benefit or loss will happen. ◦ Potential Conflict = the financial benefit or loss could happen. 10  9/20/2017 Conflict of Interest: Eugene Code The Eugene Code has conflict of interest requirements for Planning Commissioners that are similar, but not identical to state law requirements. EC 9.7065(2): No member of the hearings body may discuss or vote on a matter when: (a) Any of the following has a direct or substantial pecuniary interest in the matter: the member or the member's spouse, brother, sister, child, parent, father‐in‐law, or mother‐in‐law; any organization or business in which the member is then serving as an officer or director or employee or has so served within the previous 2 years; or any business with which the member is negotiating for or has an arrangement or understanding concerning a prospective partnership, employment or other business affiliation. (b) The member owns all or a portion of the property that is the subject of the matter before the hearings body or owns abutting or adjacent property. (c) The member has a direct personal interest in the matter or for any other reason cannot participate in the hearing and decision impartially. EC 2.333 contains the same requirements. What To Do: Actual/Potential Conflict When in Doubt, Shout it Out! ◦ Declare the conflict in enough detail so that others can understand the reason for the conflict (“I have a conflict” is not enough) ◦ Do it on the record ◦ Do it at every meeting the conflict comes up 11  9/20/2017 What To Do: Potential Conflict ◦ Shout it Out! (Declare the conflict.) ◦ Once you have declared the conflict, you may participate in the discussion and vote on the matter that gave rise to the potential conflict of interest. What To Do: Actual Conflict ◦ Shout it Out, then Shut it Up. ◦ You must declare an actual conflict, but once you do, you may not participate in the discussion or vote on the matter giving rise to the conflict. ◦ Make sure the minutes or recording of the meeting reflect that you declared a conflict of interest and did not participate. ◦ State law allows public officials with actual conflicts of interest to vote under certain narrow circumstances, but the Eugene Code does not. If you have an actual conflict of interest, you may not participate. 12  9/20/2017 Exemptions from Conflicts of Interest ◦ A class of people (i.e., all the taxpayers in the City) will be affected to the same degree (class should be quite large. A class of ten probably doesn’t cut it). ◦ The conflict arises from your membership in or service on the board of a 501(c) tax‐exempt non‐profit. ◦ The conflict arises from an interest or membership in a particular business, industry, occupation or other class required by law as a prerequisite to the holding by the person of the office or position. Conflicts of Interest for Other City Staff Declare the conflict of interest in writing and provide it to your supervisor. Your supervisor can then decide what to do (i.e., assign the task to someone else or ask you to complete the task despite the conflict). 13  9/20/2017 Staff Conflicts of Interest: Eugene Code EC 9.7065(4): No other officer or employee of the city who has a financial or other private interest in a matter before the body may participate in discussion of the matter with, or give an official opinion on the matter to, the body without first declaring for the record the nature and extent of that interest. City Ethics Provisions The City has adopted its own ethics code which is located in Eugene Code sections 2.480‐2.488. The City ethics code generally mirrors the state ethics law. The Code also provides an additional complaint process for complaints filed against elected city officials, planning commission members, human rights commission members, budget committee members, police commission members, the City Manager, department heads, and the municipal judge. 14  9/20/2017 Legislative v. Quasi‐Judicial The Planning Commission acts in a legislative The Planning Commission acts in a quasi‐ capacity when making a recommendation on judicial capacity (like a judge) when it Type V applications (most land use code and considers Type II and III applications. Quasi‐ refinement plan amendments). Legislative judicial land use decisions apply land use land use decisions are policy decisions criteria to a specific piece (or pieces) of applicable to a broad range of parties. property. Quasi‐Judicial Decisions: Bias The parties to a quasi‐judicial decision are entitled to an impartial, unbiased decision maker. You need to be able to declare that you can make decisions in quasi‐judicial applications without bias and based on the evidence and argument in the record. 15  9/20/2017 Quasi‐Judicial Decision: Ex Parte Contacts Planning Commissioners need to confine their review of a land use decision to the record in that decision. Planning Commissioners should not be collecting information that is outside the record, whether that information comes from a personal site visit, a conversation in the grocery store, or an article in the newspaper. Any information about a quasi‐judicial application that is outside the record (except that communication with city staff) is an ex parte contact. If you experience an ex parte contact, you need to: 1) let Planning staff know; and 2) declare it so that the parties have an opportunity to rebut the substance of the ex parte contact. THE END! Questions? 16  ATTACHMENT B City of Eugene Boards, Commissions & Committees Legal Overview 2017 This handout will provide you with a brief overview of public records, public meetings and state ethics law requirements. This document is not intended as a comprehensive review of state law, nor is it intended as legal advice. If you have questions about any of the topics addressed below, you should bring those questions to your board or commission staff person. Your staff person will either answer your questions or will contact the city attorney’s office on your behalf. I. Government Ethics Public office is a public trust. This concept is enforced through state ethics laws as well as many city and county charters and codes in provisions that prohibit public officials from using their positions to enrich themselves, their families or businesses with which they or their close relatives are associated. 1. State Ethics Law Oregon law includes a code of ethics for public officials. The ethics statutes are located in Chapter 244 of the Oregon Revised Statutes. The Oregon Government Ethics Commission (previously known as the Oregon Government Standards and Practices Commission) is charged with investigating violations of the state ethics law. 2. Covered Officials The state ethics law applies to “public officials.” A public official is any person who currently serves the State of Oregon or any local or special government as an elected official, appointed official, employee, agent or volunteer. A person serving on a city board or commission is a public official within the meaning of the state ethics law. 3. State Ethics Code Prohibitions The state ethics code prohibits: (a) using or attempting to use your public office to obtain a financial benefit; (b) accepting certain gifts; (c) soliciting or receiving a promise of future employment based on an understanding that the promise will influence your decision making; (d) using confidential information for personal gain; and (e) representing a client before the governing body of which you are a member. 4. Use of Office to Obtain Financial Benefit A public official may not use or attempt to use his or her public office or position to obtain a financial gain or avoid a financial detriment for: 1) him or herself, 2) his or her relative, 3) a member of his or her household, or 4) any business with which the public official, a relative or member of the household of the public official is associated if the opportunity to obtain a financial gain or avoid a financial detriment would not be available but for the fact that he or she is a public official. The state ethics code does, however, allow the following types of financial City of Eugene Boards, Commissions, and Committees Page 1 of 10 Legal Overview 2017 “gain”: official compensation; honoraria which do not exceed certain limits; reimbursement of expenses; an unsolicited award for professional achievement; gifts from sources with an economic interest in your decisions that do not exceed certain limits; any gifts from sources without an economic interest in your decisions; the receipt of any item excluded from the definition of “gift” in the ethics statutes; and contributions to a legal expense trust fund. (a) The Ethics Code Applies to Public Officials, Their Relatives and Members of Their Households The ethics code prohibits public officials from using, or attempting to use their positions to obtain a monetary benefit for their relatives or a member of their household. The term “relative” means only the following persons:  Your spouse, parent, stepparent, child, sibling, stepsibling, son-in-law or daughter-in-law;  Your spouse’s parent, stepparent, child, sibling, stepsibling, son-in-law or daughter-in- law;  Any individual for whom you have a legal support obligation;  Any individual to whom you provide benefits arising from your public employment (i.e. health insurance) or from whom you receive benefits arising from that individual’s employment “Relative” does not mean: aunts, uncles, cousins, grandparents, boyfriends or girlfriends. A member of the public official’s household is any person who resides with you. (b) Businesses Associated with Public Officials or Their Relatives Public officials are prohibited from using their position to obtain financial benefit for businesses with which they or their relatives are associated. Under the ethics statutes, a person is associated with a private business or closely-held corporation if the person or person’s relative is a director, officer, owner, employee or agent of the business or has owned at least $1,000 worth of stock or similar interest in the corporation during the preceding calendar year. A person is associated with a publicly held corporation if the person or person’s relative is an officer or director of the corporation or has owned $100,000 worth of stock or similar interest during the preceding calendar year. For public officials required to file a Statement of Economic Interest with the OGEC (city councilors, the mayor, planning commissioners, the city manager and the municipal judge), a business with which they are associated also includes any business that produces 10% or more of that public official’s household income. (c) What Constitutes “Using” Official Position or Office for Financial Gain To “use” one’s public office generally requires some affirmative act or omission which is related to the public office. For a member of a public body, use of office includes discussing, debating or voting as a member of the body. For a public official who is not a member of a body, use of office includes any act such as approval of a contract, hiring an employee and failing to enforce the law. The prohibition also extends to any attempt to use public office. The prohibition on use of public office for gain is fairly broad, as the following examples illustrate. City of Eugene Boards, Commissions, and Committees Page 2 of 10 Legal Overview 2017  Example: A SAIF official violated the ethics law when he purchased a personal car as an “add on” to SAIF’s fleet purchase at a savings of almost $1,300. This purchase did not involve any additional cost to SAIF. Because this discount would not have been available to him but for the fact that he was a public official (i.e. he could not have walked into the car dealership on the corner and received the same price for the car as a private citizen), the Oregon Supreme Court determined that he had used his office for financial gain. Example: Use of the office can be direct or indirect. A state senator was chairman of the senate committee which considered all bills affecting workers’ compensation. The senator received a financial benefit when he was paid by a friend to use the influence of his office to obtain business for the friend. The senator used his office directly by requesting business for that friend; he also used his office indirectly by letting it be known that he supported that friend’s business enterprise. 5. Gifts During any calendar year, a public official, relative of the public official, or member of the public official’s household may not solicit or receive any gift or gifts with an aggregate value in excess of $50 from any single source who could reasonably be known to have a “legislative or administrative interest” in the public official. The term “legislative or administrative interest” means an economic interest, distinct from that of the general public, in any matter subject to the decision or vote of the public official acting in his or her capacity as a public official. When deciding whether or not to accept a gift, you must think about whether the source of the gift has an economic interest in any decision or vote that you will make on behalf of the City. However, you do not need to attempt to determine whether the source of the gift has an economic interest in decisions made by anyone else at the City. If the source of the gift has an economic interest in the decisions you make as a public official, you may not accept gifts from that source with an aggregate value of more than $50 in any calendar year. If the source of the gift does not have an economic interest in the decisions you make as a public official, the $50 per year gift limit does not apply. Items which are not considered gifts under the ethics statutes and are not subject to the $50 gift limit include: 1) Campaign contributions; 2) Gifts from your relatives or members of your household; 3) An unsolicited token or award of appreciation (plaque, trophy, desk item or similar item) with a resale value reasonably expected to be less than $25.00; 4) Informational materials, publications or subscriptions related to your performance of your official duties; 5) Admission or the cost of food or beverage consumed by you, your relative, a member of your household, or a member of the your staff, at a reception, meal or meeting held by an organization where the you are representing the City; City of Eugene Boards, Commissions, and Committees Page 3 of 10 Legal Overview 2017  6) Reasonable expenses paid by a governmental unit or a 501(c)(3) non-profit for you to participate in a convention, trip, fact finding mission, conference, or other meeting where you are scheduled to deliver a speech, make a presentation, participate on a panel or represent the City; 7) Contributions to a legal expense trust fund; 8) Reasonable food, travel, or lodging expenses provided to you, your relative, a member of your household, or your staff when you are representing the City on an officially sanctioned trade-promotion or fact-finding mission, or in officially designated negotiations, or economic development activities, where receipt of the expenses is approved in advance; 9) Waiver or discount of registration expenses or materials provided to you as part of continuing education to satisfy your professional licensing requirements; 10) Food or beverage consumed by you at a reception where the food or beverage is provided as an incidental part of the reception and no cost is placed on the food or beverage; 11) Entertainment provided to you, your relative, or a member of your household that is incidental to the main purpose of another event; 12) Entertainment provided to you, your relative, or a member of your household when you are acting in an official capacity while representing the City for a ceremonial purpose; 13) Anything of economic value that is given as a usual or customary practice of your private business or position as a volunteer with a business or entity and that bears no relationship to your position as a public official. 6. Honoraria A public official or candidate for public office may not solicit or receive honoraria for themselves or members of their household unless the honorarium, plaque, commemorative token or other item has a value of $50 or less, or the honorarium is for services performed in relation to the private profession, hobby or expertise of the public official. 7. Jobs Public officials may not solicit or receive any promise of future employment based on an understanding that the official’s vote, action, or judgment would be influenced by that promise. 8. Public Contracts With some limited exceptions, for two years after a person ceases to hold a position as a public official, that person may not have a direct beneficial financial interest in a public contract that he or she authorized in his or her capacity as a public official. City of Eugene Boards, Commissions, and Committees Page 4 of 10 Legal Overview 2017 9. Confidential Information Public officials may not use confidential information gained in the course of their official duties or position for the purpose of furthering personal gain for themselves or any other person. 10. Representation No person shall attempt to represent or represent a client for a fee before the governing body of a public body of which the person is a member. This prohibition does not apply to the person’s employer, business partner or other associate. 11. Actual and Potential Conflicts of Interest Public officials may face situations in which their actions may, or will, result in a financial benefit or detriment for themselves, their relatives, or businesses with which they or their relatives are associated. In such cases, the state ethics law describes the proper response. The response depends upon whether the conflict is an actual conflict or a potential conflict. Keep in mind, however, that under no circumstances may an official use their office for the purpose of benefiting the official, a relative, a member of the public official’s household or an associated business. (a) Actual Conflict of Interest An actual conflict of interest exists when a public official is faced with acting, deciding, or recommending an action, and the effect of that action or decision will create a private pecuniary benefit or detriment for the official, the official’s relative, or any business with which the public official or a relative of the public official is associated. Example: A city councilor owns one of two well-digging companies in the city. The council is voting upon whether to adopt a proposed ordinance that would impose licensing fees on well-digging companies. His vote will certainly have the effect of creating a financial detriment for his company. Example: A systems operation official approves an employment agreement with a technical support company that employs her son. The approval would be to the pecuniary benefit of a business with which her relative is associated. (b) Potential Conflict of Interest A potential conflict of interest exists when a public official is faced with acting, deciding, or recommending an action, and the effect of that action or decision could create a private pecuniary benefit or detriment for the official, the official’s relative, or any business with which the public official or a relative of the public official is associated. Example: If the public official as an independent contractor performs services for a business that comes before the public body upon which the official sits, a potential conflict exists. The decisions of the public body could result in private pecuniary benefit to the official. City of Eugene Boards, Commissions, and Committees Page 5 of 10 Legal Overview 2017 (c) Exemptions from Potential Conflicts of Interest Actions affecting an entire class of people do not create a conflict of interest. In other words, no conflict exists if the public official’s action would affect a significant number of people in the same way it would affect the public official. For example, if a city council was voting to adopt a city-wide tax cut for retail businesses, council members who owned retail businesses would not have a conflict because their decisions affected a large class of people – all the retail businesses in the city. However, if the city council was voting to adopt a tax cut for software companies, and a city councilor owned one of only three software companies in the city, the councilor would have an actual conflict of interest for which the “class” exemption would not apply. In that case, three software companies would not be considered a large enough class to trigger the exemption. Other exemptions to potential conflicts of interest include the following: 1) Membership in a particular business or industry, occupation or other class required by law as a prerequisite to holding office does not give rise to a conflict of interest. For example, the statutes governing a commission which recommends fees for the use of certain chemicals, require that one of the positions on the commission be filled by a representative of a company which uses such substances. That person is not faced with conflict of interest when deliberating upon the amount of a fee. 2) No conflict exists when the pecuniary benefit or detriment to a public official or business with which the public official is associated arises out of the public official’s membership in or seat on the board of directors of a nonprofit corporation which is tax- exempt under section 501(c) of the Internal Revenue Code. 12. Methods of Handling Actual or Potential Conflicts of Interest In every case in which a public official is met with an actual or potential conflict of interest, the official must disclose the conflict. Elected officials and appointed officials serving on a boards or commissions must publicly announce the nature of the conflict prior to taking any action. A public official need only announce a conflict of interest once during the course of any particular meeting. When faced with an actual conflict of interest, a public official must, after disclosing the conflict, refrain from participating in any discussion or debate on the issue out of which the actual conflict arises and refrain from voting on the issue. The public official should make certain that the minutes reflect that the public official did not participate in the discussion or vote. Rule of necessity: The state ethics statutes provide that if an official’s vote is necessary to meet a requirement of a minimum number of votes to take official action, then the official is eligible to vote, but not to participate in any discussion or debate on the issue out of which the actual conflict arises. However, Eugene Code section 2.484 expressly rejects the rule of necessity and prohibits a public official from discussing, debating or voting on a matter in which the public official has an actual conflict of interest. City of Eugene Boards, Commissions, and Committees Page 6 of 10 Legal Overview 2017  When faced with a potential conflict of interest, a public official must announce publicly the nature of the potential conflict prior to taking any action. However, following the declaration of the conflict, the official may discuss and vote on the matter that gave rise to the potential conflict of interest. Planning commissioners may not participate in any commission proceeding in which any of the following persons or entities has a direct or substantial financial interest: (a) the commissioner or the spouse, brother, sister, child, parent, father-in-law, mother-in-law of the commissioner; (b) any business in which the commissioner is serving or has served within the previous two years; or (c) any business with which the member is negotiating or has an arrangement or understanding concerning prospective partnership or employment. II. Public Meetings Law Oregon law requires that decisions of governing bodies be arrived at openly. As such, state law contains several requirements to ensure that the public has access to the meetings of governing bodies at which decisions about the public’s business are made or discussed. These provisions are codified in ORS Chapter 192. Violation of the public meetings law could void a local government decision. The Eugene Code contains some provisions particular to the City Council and for some specific committees, the Planning Commission for instance, but in general the state statutes govern City meetings. 1. What is a “Meeting” Under the Public Meeting Laws? A meeting occurs whenever a quorum of a “governing body of a public body” conducts “public business.” For purposes of applying the Public Meetings Law to local governments, a “public body” is any city council, board, commission, committee, subcommittee or advisory group created by an official act. However, the Public Meetings Law applies only if the body has the authority to make decisions for a public body, or make recommendations to a public body. The Public Meetings Law may apply whenever a quorum of the “public body” is present. A quorum is, generally, 50% of the members, plus one. For example, a city council with five members has a quorum of three. If public business is conducted when a quorum is present, public meetings law will apply. The Eugene Code provides that a quorum of the Planning Commission quorum is four members. EC 2.345. “Public business” is conducted whenever the public body discusses any policy or administrative matters that pertain to the local government. Therefore, if a quorum of the governing body's members went to the same party, their presence could constitute a meeting (subject to the public meeting laws) if as a group they discuss matters pertaining to the local government. However, if the members simply enjoyed a social evening together, and did not discuss matters relating to the local government, then there would be no “meeting” under the Public Meetings Law. In February, 2011, a circuit court issued a decision about public meetings and Lane County. According to the circuit court, once an item has been placed on the agenda and deliberations are occurring toward a decision, sequential one-on-one discussions in person, on the phone or by e-mail may constitute a “meeting” for which public notice and access are required. City of Eugene Boards, Commissions, and Committees Page 7 of 10 Legal Overview 2017 2. Where Must a Public Meeting be Held? Public meetings must be held within the geographical limits of the local government’s jurisdiction. One exception is for “training sessions,” so long as a session does not include any discussion of the local government’s business. The other exception is where the public body is holding a joint meeting with a public body from another jurisdiction. In that case, the meeting must be held within the geographic boundaries of the area over which one of the bodies has jurisdiction, or at the nearest practical location. Finally, the meeting site cannot be a place where discrimination is practiced or which is inaccessible to individuals with mobility impairments. 3. When May a Meeting be Private? In limited circumstances, a governing body may meet in private. These exclusive meetings are called “executive sessions.” Members of the news media normally cannot be excluded from an executive session. A governing body has the authority to hold an executive session only for one of the specific reasons set out in state statutes. Some of the reasons that may apply to boards and committees include: 1) To discuss performance evaluations of public officers and employees; 2) To consider exempt public records; or 3) To consult with legal counsel concerning legal rights and duties regarding current litigation or litigation likely to be filed (a news media member may be excluded if she/he is a party to the litigation being discussed). During an executive session, the body may deliberate and discuss, but state law prohibits it from reaching a final decision during that session. To take action, the governing body must return to an open session. 4. What Type of Notice is Required? The Public Meetings Law requires that notice be given of the time and place of any meeting subject to the Public Meetings Law. This includes meetings of subcommittees and advisory committees in addition to the governing body’s meetings. For a regular meeting, notice must be reasonably calculated to give actual notice of the time and place of the meeting to “interested persons including news media that have requested notice.” The notice must include a list of the principal subjects anticipated to be discussed at the meeting. However, if an unplanned item comes up at the meeting, it may be addressed. Except in an emergency, all public meetings (including executive sessions) must be called with at least 24 hours prior notice. Special notice provisions apply for certain Planning Commission meetings under state and city land use regulations. 5. How Must We Conduct Meetings? City meetings are generally conducted using Robert’s Rules of Order, a set of parliamentary rules used to maintain order in public meetings. In general, this means that a chair directs the meeting and controls the debate/discussion. Actions are made through motions and City of Eugene Boards, Commissions, and Committees Page 8 of 10 Legal Overview 2017 majority votes on the motions. The chair has the authority to ensure that the meeting is conducted in a business-like and respectful manner and may enforce reasonable rules on speaking and maintaining order. Business must be conducted by public votes. In most meetings, the public does not have a right to comment, although it is appropriate to set aside a prescribed period of time for public comment. Certain Planning Commission meetings are an exception. Additionally, City Code creating Civilian Review Board calls for the Board to allow public comment. EC 2.246(5). III. Public Records Law Under Oregon law, nearly every document or record (including computer records, e-mail, and handwritten notes during meetings) created or held by a public body, must be made available to anyone who requests to see it. Unless a specific exemption applies to a document, the document must be disclosed. The public records law is codified in ORS Chapter 192. 1. Who Has the Right to Inspect Public Records? Under state law, “every person” has a right to inspect any nonexempt public record. The identity, motive and need of the person making the request are irrelevant unless an exemption from disclosure allows consideration of those characteristics. The government is allowed a reasonable time to respond to the request, which may include an opportunity to consult with legal counsel. 2. Whose Records are Subject to the Public Records Law? All local governments are subject to the Public Records Law. 3. What Kinds of Records are covered by the Public Records Law? A “public record” is “any writing containing information relating to the conduct of the public’s business . . . regardless of physical form or characteristics.” This includes “handwriting, typewriting, printing, photographing and every means of recording, including letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, files, facsimiles or electronic recordings.” Your e-mail messages are subject to the Public Records Law if they relate to the conduct of the public’s business. Also, the handwritten notes you take at a meeting are subject to disclosure. The local government may charge a reasonable fee to recover its costs for producing and copying records. The City has a fee schedule for producing public records subject to a request. 4. What Types of Records are Exempt From the Public Records Law? To deny public disclosure of a record, the public body has the burden of proving that the record information is exempt from disclosure. The exemptions are listed in ORS Chapter 192. Among the exemptions are those records which pertain to litigation, personnel matters, trade secrets and criminal investigatory material. There are many more. A public body may choose to disclose an exempt record unless disclosure is prohibited by another state or federal law. A public body is not required to deny disclosure of a record which fits into an exemption category. City of Eugene Boards, Commissions, and Committees Page 9 of 10 Legal Overview 2017  IV. Records Retention The State Archivist has established general retention schedules for state, county, and city agencies. These schedules are extremely detailed and provide the minimum length of time particular records are to be retained. The state statutes regarding records retention are found in ORS 192.001-192.190 and the general retention schedule for cities is found in Chapter 166, Division 200 of the Oregon Administrative Rules (OAR). 1. What is a Public Record for Retention Purposes? A public record, for retention purposes includes “any information that: (A) Is prepared, owned, used or retained by a state agency or political subdivision; (B) Relates to an activity, transaction or function of a state agency or political subdivision; and (C) Is necessary to satisfy the fiscal, legal, administrative or historical policies, requirements or needs of the state agency or political subdivision.” ORS 192.005(5). A public record, however, does not include extra copies of records which are kept only for convenience, nor does it include voice mail messages. 2. What is a Retention Schedule? A retention schedule dictates how long a specific public record must be retained, and unless otherwise stated, the retention period begins with the record’s creation date. The state’s general schedule list numerous types of documents and their appropriate retention periods. 3. How Long Must the City Keep Particular Records? Oregon Administrative Rules Chapter 166, Division 200 contains the state’s entire General Records Retention Schedule for cities. The schedule sets out the period of time that a particular category of document must be preserved. Time periods are established for each category, including: room reservation and activity records, employee activity reports, correspondence, desk calendars, written telephone message notes, and committee meeting materials. As an example of the time periods involved, committee meeting materials that do not relate to minutes must be retained for at least five years. 4. What about Emails, Notes, and Drafts? Questions commonly arise with regard to emails, notes, and drafts because they do not have their own categories. All three types of documents are considered public records if they pertain to the transaction of public business. The retention period is that of the category that best describes the document or the category to which the email, note or draft relates. City of Eugene Boards, Commissions, and Committees Page 10 of 10 Legal Overview 2017  AGENDA ITEM SUMMARY September 25, 2017 To: Eugene Planning Commission From: Dan Kaler, Engineering Data Services Manager, Public Works Engineering Subject: Transportation System Development Charges (TSDC) and proposed incentives ISSUE STATEMENT The Engineering Division is updating the methodology for determining the Transportation System Development Charges (TSDC) for new development. Based on our review of the state of the practice in Oregon, there are two feasible methods that the City can use to determine TSDC fees. The updating of the TSDC is one of the implementation items identified in the City’s recent adopted Transportation System Plan (TSP). As part of the update, the Engineering and Planning Divisions have proposed TSDC incentives that would apply to specific land uses that help address equity, economic, and environmental considerations and promote affordable housing, compact development, and efficient transportation. These incentives help to achieve the Goals and Policies in both the City’s TSP and the Envision Eugene Comprehensive Plan. At this work session, the Planning Commission will have an opportunity to provide feedback on the two options for the updated methodology and the proposed incentives. BACKGROUND SDC Overview SDC fees are intended to provide an equitable means of funding capital improvements that provide capacity in infrastructure systems needed to serve future growth. SDC fees collected in Eugene fund capital projects for wastewater, stormwater, parks, transportation and water. Examples of the types of transportation projects funded in part by TSDC fees include: (a) widening and extension of arterial and collector streets, (b) new traffic signals and other intersection improvements, and (c) new bicycle facilities, sidewalks, and multi-use paths. The amount of TSDC revenue varies considerably from year to year, depending on the volume and nature of development, which are tied to local economic conditions. Over the past five fiscal years, annual TSDC revenues have ranged from $0.9 million to $1.9 million. Expenditures also vary in relation to both the types and the TSDC-eligible costs of capital projects funded as well as to the amount of available funding. Over the past five fiscal years, annual expenditures have ranged from $0.75 million to $1.8 million. The current method for determining TSDC fees includes two components: (a) the funding needed for capital improvements that provide new capacity (i.e., improvement fees), and (b) reimbursements for extra capacity built in the past in systems that were paid for by the general community (i.e., reimbursement fee). Improvement fees may be spent only on capacity-increasing projects (e.g., new bike lanes or sidewalks), while reimbursement fees may also be spent on rehabilitation projects (e.g., street preservation). Proposed TSDC Methodologies Both methodologies being considered as part of the TSDC update are based on a capital project list that includes multimodal projects from the recently adopted TSP1. The two options differ with respect to: (a) how the City can determine which portion of each project’s cost is TSDC-eligible, and (b) how the overall fee assessed to development is structured (i.e., Improvement Fee only vs. combined Improvement and Reimbursement). These options differ considerably in the ultimate fees charged to new development. Option 1 – Combined Improvement and Reimbursement Fees – Like the current methodology, Option 1 is based on a combined Improvement and Reimbursement structure. This option establishes SDC-eligibility for each existing and planned improvement, in proportion to the utilization of the facilities (as measured by new development’s share of future trips specific to a street). These street projects include roadway, bike and pedestrian improvements. For stand-alone active mode improvements (i.e., off-street pathways), the miles of pathways needed for growth (relative to the planned level of service) is used to determine SDC-eligibility. Option 2 - Improvement Fee Only – Under Option 2, a single system-wide multimodal standard is used to establish SDC-eligibility, rather than consideration of performance standards specific to each project type. This Option 2 uses the total historical system value per trip2 as the standard. This methodology assumes that future system investment will need to continue at a rate consistent with the current system value per trip, in order to maintain the current level of service for the transportation system as a whole. The methodology for Option 2 involves the following key implications: a) Any capacity-increasing improvement cost on the project list is SDC-eligible, provided the total cost per trip does not exceed the existing system value per trip. For 1 Specifically, the project list includes roadway and multimodal projects to be constructed within the next 20 years, as well as projects completed upon development, and improvements to the bicycle and pedestrian network (excluding sidewalks). Rail, transit, and improvements funded by the Oregon Department of Transportation are excluded. 2 Historical system value per trip is represented by the replacement cost for existing streets, bridges, off-street paths, etc. – divided by the current number of trips generated on the network.  example, under Option 1, TSP Project MM-19 (Reconstruct Franklin Boulevard pursuant to the Walnut Station Plan) would be 92 percent SDC-eligible under Option 2 (as the majority of the project cost is related to expanding multimodal capacity); however, only 21 percent of costs are TSDC-eligible under Option 1 (reflecting new growth expected along Franklin Boulevard near the station, between now and the year 2035). b) There is no reimbursement fee considered in the calculation. Instead, all existing multimodal facilities are assumed to generally meet the needs of existing development (i.e., no ‘excess capacity’ left in the system to accommodate new development). This assumption results in a larger portion of project costs to be TSDC -eligible but the City loses a more flexible revenue option available through the reimbursement component of the SDCs. c) The resulting preliminary TSDC under Option 2 ($5,133 for a single family dwelling unit) is significantly higher than under Option 1 ($2,984), since Option 2 is reflective of a higher SDC-eligibility portion for each of the multimodal projects. Proposed TSDC Incentives Through Envision Eugene and the TSP, our community developed a vision for how we want to grow and change over time and the type of multimodal transportation system needed to support this vision. This vision and the needed implementation strategies (as included in the City Manager’s Envision Eugene 2012 Recommendation) were acknowledged by Council in 2012. One of the “seven pillars” within this vision is promoting “compact growth and efficient transportation options.” To help achieve this vision, the 2012 recommendation included direction to “assess benefits of new incentives such as restructuring systems development charges (SDCs).” Specifically, the 2012 recommendation directed staff to “align incentives, costs and city processes to promote resource efficient buildings, smaller homes and development towards the city core.” The proposed TSDC Incentives respond to this direction from Council and advance implementation of our community vision. In developing the proposed incentives, Planning and Development Department (PDD) staff looked at policies in other jurisdictions to identify ways that can help incentivize the types of development needed to achieve the vision. Based on this review, staff identified a criteria- based method for compact development that is similar to that used in Bellingham, WA. Based on the policy research and outreach efforts, the recommended criteria-based incentive system recognizes geographic context (i.e., Downtown Planning Boundary, Nodal Development Areas, Key Corridors, and Frequent Transit Network) and the new development’s commitment to implementing a Transportation Demand Management Plan (TDM). The cumulative total of the incentives may not exceed 50% of the TSDC fee (see Table 1 below). In reviewing the fiscal year 2017 building permit activity, it is estimated that the geographic-based incentives alone would reduce the TSDC fees by approximately $175,000. Please refer to the attached maps for both a city-wide and downtown area view of the geographic-based incentive areas. In addition to the criteria-based method, the incentives include a 50 percent reduction for secondary dwelling units (SDUs). This incentive is modeled on policy based programs used in Portland and Springfield, although both of these jurisdictions offer a 100% waiver for all fees for SDUs. Please note that an approved secondary dwelling unit shall receive a 50% reduction in addition to any of the applicable incentives in Table 1. In developing the incentive options, PDD staff engaged the development community to assess overall acceptance and if the incentive options would help support desired development in the future. This outreach revealed that reducing transportation SDCs for SDUs and transit-oriented development in our downtown and along key corridors, as a stand-alone measure, is unlikely to overcome all of the barriers to these development types. This is particularly true in the case of SDUs, where the land use code represents a significant obstacle to development. Although the incentives may not help to overcome the barriers, reducing transportation SDCs will provide a meaningful incentive and market signal, helping to implement our community vision. Table 1 – Criteria for TSDC Reductions % Reduction Location (only one applies)  Development meets density requirements and is within 30% the Downtown Plan Boundary (see TSDC Incentive map)  Residential or mixed-use3 development fronts on a key 15% corridor (see TSDC Incentive map)  Development is located within one of five “nodes” (See 10% Nodal Development map.) Transit Proximity (only one applies)  Residential or mixed-use development is within ¼ mile of 10% an adopted LTD Frequent Transit Network (FTN) Route (see TSDC Incentive map)  Residential or mixed-use development is within ½ mile of 5% an adopted Frequent Transit Network (FTN) Route (see TSDC Incentive map) Transportation Demand Management (only applicable to developments qualifying under at least one of the above criteria)  Development has a signed transportation demand 10% management agreement with the City 3 A mixed use development is a development that includes a combination of commercial and residential uses. ATTACHMENTS  Proposed text for Sections 1.3.4 – 1.3.5 of the SDC Transportation Methodology (Appendix B)  Map exhibits (City-wide Extent and Downtown Area) NEXT STEPS Community Outreach During the development of the proposed TSDC methodologies, the Engineering Division has conducted several community outreach meetings. These meetings have included the Neighborhood Leadership Council, Homebuilders Association, Chamber of Commerce, Planning Commission, and the Active Transportation Committee. Future Council Work Session and Public Hearing Upon completion of community outreach, a work session will be scheduled with the City Council to review the input received during the community outreach and to review the proposed methodologies. Subsequent to the work session, a public hearing will be scheduled, followed by Council action. FOR MORE INFORMATION Dan Kaler, 541-682-5216, Daniel.L.Kaler@ci.eugene.or.us Louranah Janeski, 541-682-5778, Louranah.Janeski@ci.eugene.or.us  ATTACHMENT A 1.4.4 Compact Development Adjustments As part of the City’s strategies to promote compact development and the goals of Envision Eugene, new developments that meet certain criteria will have their calculated transportation SDC reduced by a corresponding percentage. The compact development adjustments listed within Section 1.3.4 and summarized below in Table 1 involve several geographically based reductions (as displayed in the map exhibits of the TSDC Project Plan), as well as a potential reductions for Transportation Demand Management. These reductions are cumulative (using the categories listed in Table 1) and may not exceed a total reduction of 50% of the Transportation SDC. 1.4.4.1 Nodal Development The General Plan (Metro Plan) recognizes the plan designation of “Nodal Development Area (Nodes)”. The intent of this designation is to establish areas for mixed-use, pedestrian-friendly development that will reduce reliance on the automobile. There is evidence that shows that this type of development can result in reduced automobile trip generation rates. Furthermore, the Oregon Transportation Planning Rule (TPR), in OAR 660-012-0060(5) states in part that: . . . local governments shall give full credit for potential reduction in vehicle trips for uses located in mixed-use, pedestrian-friendly centers . . . and, . . . local governments shall assume that uses located within a mixed-use, pedestrian-friendly center, or neighborhood, will generate 10% fewer daily and peak hour trips than are specified in available published estimates, such as those provided by the Institute of Transportation Engineers (ITE) Trip Generation Manual. . . Based on this information, the City will apply a 10% reduction of the transportation SDC to approved development types in designated Nodal Development Areas. 1.4.4.2 Development within Downtown Planning Boundary Development within the boundaries of the Eugene Downtown Plan that meets the minimum non-adjustable floor area ratio (FAR) required by Eugene Code for commercial or mixed use buildings, or 20 units per net acre for solely residential buildings, will be granted a 30% reduction of the calculated Transportation SDC. 1.4.4.3 Residential or mixed used development along a Key Corridor The Envision Eugene Plan has identified six corridors that are intended to have transit service connecting downtown to numerous core commercial areas. These corridors involve Highway 99, River Road, Coburg Road, South Willamette, Franklin Boulevard, and West 11th Avenue. Development immediately adjacent to these Key Corridors will be granted a 15% reduction of the calculated Transportation SDC. 1.4.4.4 Development along Frequent Transit Network  ATTACHMENT A The Frequent Transit Network (FTN) as defined by Lane Transit District provides transit service for at least 16 hours per day with an average frequency of 15 minutes or better. The FTN includes both current and future routes that will provide this level of service. Residential or mixed use development will be granted a reduction of the Transportation SDC based on the following proximities: a) Within 0.25 miles of the current / future FTN will be granted a 10% reduction b) Within 0.5 miles of the current / future FTN will be granted a 5% reduction 1.4.4.5 Transportation Demand Management Adjustments A development which qualifies for any of the geographic reductions listed above may also be eligible for a Traffic Demand Management (TDM) reduction of the Transportation SDC. To receive this reduction, the development must obtain a TDM agreement with the City which may include the following commitments, to be agreed upon by the City and the applicant:  Bus pass provided to either residents or employees depending on type of development  Bike share station provided on or adjacent to development with discounted memberships provided to residents or employees  Car share parking provided on or adjacent to development with discounted memberships provided to residents or employees  Other incentives or improvements for employees to walk, bike, bus or carpool to work  ATTACHMENT A Table 1 – Compact Development Adjustments Criteria % Reduction of Transportation SDC Location ( only one applies)  Development meets density requirements and is within the 30% Downtown Plan Boundary (see Downtown Plan Boundary Map)  Residential or mixed-use1 development fronts on a key 15% corridor (see key corridor map)  Development is located within one of five “nodes” (See 10% Nodal Development maps.) Transit Proximity (only one applies)  Residential or mixed-use development is within ¼ mile of an 10% adopted LTD Frequent Transit Network (FTN) Route (see FTN map)  Residential or mixed-use development is within ½ mile of an 5% adopted Frequent Transit Network (FTN) Route (see FTN map) Transportation Demand Management (only applicable to developments qualifying under at least one of the above criteria.)  Development has a signed transportation demand 10% management agreement with the City 1.4.5 Secondary Dwelling Unit Adjustments As part of the City’s strategies to further efficient housing options and the goals of Envision Eugene, new secondary dwelling units (SDUs) shall be granted a reduction equal to 50% of the calculated transportation SDC. This reduction will be in addition to any of the applicable adjustments listed in Section 1.3.4, 1 A mixed use development is a development that includes a combination of commercial and residential uses. ATTACHMENT B ATTACHMENT B