What a mess! City staff made a mistake by not telling the city council that the amendments to the marijuana (cannabis) ordinance they were considering had not been properly noticed to the public. Instead of admitting and fixing their mistake, they keep making matters worse. They have essentially delegitimized the votes of both the new city council and the open government commission.
It all started on October 16, 2018. City staff failed to inform council members that they could not add a new provision to an ordinance without that provision being publicly noticed. Unaware of staff’s error, the council proceeded to vote 3-2 in favor of doubling the number of allowable retail stores from two to four. A second reading on these amendments was required, and the matter was scheduled to return.
On October 30 a citizen’s complaint was filed, alleging a violation of the city’s Sunshine Ordinance–namely, that the agenda item referred to “delivery only” businesses, not retail. Instead of resolving that complaint before the second reading, council finalized their decision on November 7.
On November 14 the open government commission, which is tasked with deciding Sunshine Ordinance complaints, heard the complaint. They ruled that a violation had occurred because the agenda description of what the city council was to vote on was inadequate. It was the first time the commission had ever sustained a complaint. City attorney Michael Roush spelled out for the commission the remedies the Sunshine Ordinance provided for such violations, and the commission chose to “set aside” council’s decision and “re-notice” the city council meeting to allow the public the opportunity to be heard on the matter.
But rather than issuing the commission’s order as required by the Sunshine Ordinance, the matter was brought back to the commission for a rehearing on December 17. The city attorney apologized, opining that the remedy spelled out in the Sunshine Ordinance violated the city charter. He said the commission should be allowed to only “provide direction” to the council but not “invalidate” any of its decisions. The commission questioned that assessment, saying the council had delegated that authority to them with the approval of the city attorney’s office and, ultimately, declined to rehear the cannabis matter.
Then rather than bringing the alleged flaw in the Sunshine Ordinance to the city council for review, city staff brought the cannabis item back to a newly seated council on January 15, 2019. Public speakers appeared.
In a stunning turn, the city attorney told the council they were not actually deciding the matter again. Council then inquired, “Why are we here?” The city attorney explained that, after they re-adopted the October 16 cannabis amendments under a different number, they would repeal the old numbers. The replace, then repeal, approach was an attempt to placate the open government commission and fend off more complaints.
The charade did not go well. The new council’s vote was a tie with one recusal, thus defeating the previous council’s cannabis ordinance amendments. This outcome was not what city staff had anticipated.
Now we are left wondering, “What happened?” First, the city attorney said the open government commission’s vote didn’t count, then he said the city council’s vote didn’t count. Can city staff tell the council that their “no” votes were merely symbolic? Does staff have the right to decide that the Sunshine Ordinance is flawed and therefore that the city does not have to follow it?
Ensuring the matter gets resolved, the complainant has filed another grievance, alleging the city did not properly inform the public prior to the January 15 city council meeting that the cannabis amendments would remain in effect even if the council voted them down and that the commission’s written decision was not attached to the agenda packet. The city attorney’s comeback is that informing the public ahead of time of this fact “is entirely irrelevant.”
The complaint was heard before the open government commission on February 4. The commission again sustained the complaint, which includes a $250 fine against the city that must go toward records retention technology or Sunshine Ordinance training and eduction.
The only way out of this mess is to start over. The city council needs to first revisit the validity of the enforcement provisions of the Sunshine Ordinance before they do anything else.