General Discussion
Proposed city ordinances, resolutions, or agreements between the city and, for example, financial institutions, are required to pass through and be approved by a series of city committees before they reach the Governing Body for a final vote.
Each committee along the way is responsible for some aspect of city governance or operations. Each committee reviews the proposed ordinance, resolution, or agreement relative to that committee’s area of responsibility. The statutory oversight responsibility of the city’s Standing Committee are defined in the city’s Municipal Charter and Code of Ordinances, which is linked at right on a desktop browser, or below on a smartphone browser.
Committees may reject the proposal entirely, send it back to staff for further work, or approve it for transmission to the next committee in the series. A proposed ordinance, resolution, or agreement that is not approved by an appropriate city committee cannot be considered by the Governing Body.
After consideration and approval by a Council committee, no substantive changes relative to the committee’s area can take place without reconsideration by the appropriate committee: substantive changes relative to a committee’s area of responsibility, made after approval by the committee, mean that the prior approval is no longer valid.
The Financial Agreement
In the case of the financial agreement funding the funding of the full suite of energy savings projects, the first committee to evaluate the contract was the Public Works and Utilities Committee. The final hurdle before presentation to the full Governing Body for approval was the Finance Committee.
Public Works Director Wheeler was responsible for transmitting the financial agreement from the Finance Committee to the Governing Body. While in her hands the agreement was changed in an important way, which should have required reconsideration by both the Public Works and Utilities Committee and the Finance Committee.
In the case of the financial agreement funding the funding of the full suite of energy savings projects, the first committee to evaluate the contract was the Public Works and Utilities Committee. The final hurdle before presentation to the full Governing Body for approval was the Finance Committee.
The purpose and purview of both committees is described in City Ordinance 2-1.13 (Standing Committees).
Among its many functions, the Public Works and Utilities Committee provides continuing oversight of development, maintenance, operations, and construction of roadways and related infrastructure, facilities, parking, stormwater infrastructure, property assets, and multimodal transportation, including transit, air travel, and pedestrian and bicycle infrastructure: in other words, everything related to the Energy Savings Project.
In addition, the Public Works and Utilities Committee oversees the public works and public utilities annual operating budgets, capital improvements, the issuance of debt instruments, operational policies, and rules and regulations the capital planning and project delivery for all city departments. In other words, changes to the financing agreement affecting the Energy Savings Project are also subject to oversight by the committee.
Changes to the financial agreement that directly affect public works are subject to the Public Works and Utilities Committee oversight and should have been referred back to the committee for its review. Keeping knowledge of those changes from the committee subverts the operations of city government.
The Finance Committee is responsible for providing continuing oversight of the operations of the city’s finances, including annual operating and capital budgets, the issuance of debt instruments, and financial operating policies, rules, and regulations. By ordinance the Finance Committee “shall have the opportunity to review all matters concerning appropriations, city budget, loans, previously unbudgeted expenditures, and financial issues related to all city owned or leased facilities.” Keeping a substantive change in the terms of the financial agreement from the Finance Committee appears prevents it from fulfilling its statutory responsibility.
Conclusions
Changing the financial agreement outside the committee process and not reporting those changes to the Public Works and Utilities Committee, and the Finance Committee prevented these committees from fulfilling their statutory roles and may be a violation of city or state law.
Public Works Director Wheeler was responsible for transmitting the financial agreement from the Finance Committee to the Governing Body. It was while in her hands that the agreement was modified in ways that should have required returning the agreement to the Public Works and Utilities Committee, the Finance Committee, before it was considered by the Governing Body.
Questions that merit investigation include:
- Under whose direction was the financial agreement modified to incorporate the Dalkia Lighting Plan?
- Did the Public Works Director know that the financial agreement had been modified to incorporate the Dalkia Lighting Plan? If not, how did that change happen?
- Under City Ordinance 2-5.2 ( Ordinances and contracts) , “the city attorney shall draft all ordinances, contracts, leases, conveyances and all instruments of writing which may be required of him by the governing body or city manager.”
- Was City Attorney McSherry involved in the drafting of the financial agreement?
- Was the City Attorney aware that the financial agreement had been modified substantively outside the committee review process?
- Under Governing Body Rules and Procedures Sec. IV.A(1) the City Manager “shall provide all facts necessary for proper study and decision making by the Governing Body”, and (IV.A(2) ensure that “no item shall be placed on the agenda unless it has gone through the committee review process and been recommended for review by at least one city committee.” The agreement presented to the Governing Body was a substantially different agreement than the one that had been previously reviewed by the two city committees that had reviewed it; so, it should not have been placed on the agenda.
- Did City Manager Lapan Hill know that the financial agreement placed on the agenda was not the agreement that had been reviewed by the city committees?
Members of the Public Works and Utilities Committee
Members of the Finance Committee