December 11, 2018 — Meeting Minutes

12-11-18 BOA Minutes December 11, 2018 Page 1 of 10

Minutes are recorded based on Robert’s Rules of Order Newly Revised, 11th, 2013 Edition

THE CITY OF CLAYTON

Board of Aldermen City Hall – 10 N. Bemiston Avenue December 11, 2018 7:00 p.m.

Minutes

Mayor Sanger called the meeting to order and requested a roll call. The following individuals were in attendance:

Aldermen: Mark Winings, Joanne Boulton, Rich Lintz, Ira Berkowitz, Michelle Harris, and Bridget McAndrew.

Mayor Sanger City Manager Owens City Attorney O’Keefe

Motion made by Alderman Lintz to approve the November 27, 2018 minutes. Alderman Boulton seconded.

Motion to approve the minutes passed unanimously on a voice vote.

PUBLIC REQUESTS AND PETITIONS

Mayor Sanger introduced the members of the Mayor’s Youth Advisory Council.

AN ORDINANCE TO CONSIDER APPROVING AN INTERGOVERNMENTAL AGREEMENT WITH THE CITY OF BRENTWOOD FOR A DOG PARK

City Manager Owens reported that for your consideration tonight is an Intergovernmental Agreement between the City of Clayton and the City of Brentwood for the construction of a new dog park in Brentwood that will be available for use by Clayton residents and current dog park members during the closure of Anderson Park. The Park closed on November 1, 2018 for the Metropolitan Sewer District to work on the Deer Creek Tunnel Project and will remain closed until 2021. Both cities have a history of formal and informal collaborative service delivery relationships with each other and neighboring cities and their proximity to Clayton makes this a good opportunity for another joint initiative between the cities. Alderman Winings introduced Bill No. 6702, an ordinance approving an intergovernmental agreement with the City of Brentwood for a dog park to be read for the first time by title only. Alderman Boulton seconded. City Attorney O’Keefe read Bill No. 6702, first reading, An Ordinance Authorizing the City Manager to Enter into an Intergovernmental Agreement with the City of Brentwood for the Construction and Joint Use of a Dog Park in the City of Brentwood by title only.

The motion passed unanimously on a voice vote.

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Minutes are recorded based on Robert’s Rules of Order Newly Revised, 11th, 2013 Edition

Motion made by Alderman Winings that the Board give unanimous consent to consideration for adoption of Bill No. 6702 on the day of its introduction. Alderman Boulton seconded.

The motion passed unanimously on a voice vote.

Alderman Winings introduced Bill No. 6702, an ordinance approving an intergovernmental agreement with the City of Brentwood for a dog park to be read for the second time by title only. Alderman Boulton seconded. City Attorney O’Keefe reads Bill No. 6702, second reading, An Ordinance Authorizing the City Manager to Enter into an Intergovernmental Agreement with the City of Brentwood for the Construction and Joint Use of a Dog Park in the City of Brentwood by title only.

The motion passed on a roll call vote: Alderman Winings – Aye; Alderman Boulton – Aye; Alderman Lintz – Aye; Alderman Berkowitz – Aye; Alderman Harris – Aye; Alderman McAndrew – Aye; and Mayor Sanger – Aye. The bill, having received majority approval was adopted and became Ordinance No. 6567 of the City of Clayton.

AN ORDINANCE TO CONSIDER APPROVING PROVISIONS FOR COLLECTIVE BARGAINING WITH CITY OF CLAYTON LAW ENFORCEMENT PERSONNEL

City Manager Owens reported that this is an ordinance establishing a process for police employees to be recognized as a bargaining unit for collective bargaining. Recently the Fraternal Order of Police stated that employees in the Clayton Police Department wished to be recognized. The Missouri Constitution allows employees to bargain collectively through representatives of their own choosing. In 2012 the Missouri Supreme Court held that the Missouri Constitution imposes an affirmative duty on public employers with employees that are excluded from “Missouri’s Public Sector Labor Law” to bargain with the representatives of their employees regardless of the lack of a governing statute.

In the most recent legislative session, passage of House Bill 1413 by the Missouri General Assembly excludes law enforcement personnel from Missouri’s Public Sector Labor Law, thereby continuing a void for established collective bargaining guidelines and procedures for public employers and law enforcement personnel. In order to fill this void some cities in Missouri establish by ordinance procedures to allow employees to pursue their constitutional rights. The model upon which those procedures was based was upheld in a 2015 Appellate Court ruling.

The City of Clayton has had a long history of positive relations with employees from all departments. Some, like the Fire Department have had a union in place for many decades and have negotiated agreements. Most others have benefitted from an open employment relationship under the compensation, benefits and personnel rules and regulations established for all employees without collective bargaining. The city has and does consider all employees vital and the most essential part of the critical role the local government plays in the life of the city through service delivery.

The city supports the exercise of all rights of employees under federal, state and local law. This ordinance establishes a process and timeframe to allow police employees to participate in the decision to form a collective bargaining unit or units of their own choosing and negotiate for an agreement.

Officer Ron Keel, Clayton Police Department, 13-year employee, addressed the Board stating that part of what they are asking for as a collective bargaining unit is that they would like to have

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Minutes are recorded based on Robert’s Rules of Order Newly Revised, 11th, 2013 Edition

a little more voice in where the framework to the department and things that affect the police department are going and feel that this framework is delaying the process. As part of that process the officers would like to be represented by the same police union as far as officers and sergeants alike. Police officers, corporals, and sergeants should be represented by the same union. It saves time and money for both the city, officers, corporals and sergeants that could be represented by the same union otherwise they will have to have a totally separate and additional process. They feel the city is not treating the officers fairly or equally to some of the other groups. For example, the fire department fire captains, who are in supervisory positions, are represented by the same union as the firefighters. He is asking for this equal opportunity whereas their police department sergeants are to be represented by the same union as the officers.

Danielle Thompson, Legal Counsel, Fraternal Order of Police Lodge 15, addressed the Board stating that they submitted to the City of Clayton in August, a request to be voluntarily recognized by the Board because of the representation and membership from the officers, sergeants, and corporals in the Clayton Police Department. Now its December and they have not been recognized and are continuing to work through the process. She stated that in August 98% of the officers, corporals, and sergeants all signed representation interest cards. Those cards indicated that they wanted the Fraternal Order of Police Lodge 15 to represent them, the police officers, the corporals, and the sergeants.

She stated that now there is a framework that has been attempted to be put into place after the fact and it’s changing the rules of the game once the game has already started. She said that it’s not fair to the officers, it’s not fair to the work that they’ve done and the things that they’ve tried to accomplish, and they still haven’t sat down to start collective bargaining.

They have been in contact with the City’s attorney regarding the problems they have with the framework and appreciate that some changes were made which has improved upon the initial draft, but their biggest concern is with Article 2.2.1 that provides that the same union cannot represent both the supervisory and nonsupervisory members of the police department.

The Missouri Constitution, Article 1, Section 29 specifically states that employees have the right to collectively bargain through representatives of their own choosing which she states that the City through its framework has removed that right.

She stated that they do have other concerns, the election procedure, set forth in Article 3.5.3, where requiring 50% of all eligible voters to choose the bargaining representative.

Another issue of concern is Article 4.5, regarding agreements and how it would allow for the Board to adopt a replacement agreement if they do not approve an agreement that was submitted to them for approval

She thanked the Board for their time and consideration.

Mayor Sanger commented that this process did start in August and that there have been changes made and dialog has been going back and forth all done in good faith. Change doesn’t happen overnight and that they are and will approach it very diligently. There has been a lot of conversation and the City’s attorney has kept them up to date. With every response they have tried to be diligent and he feels that they have gotten to the point where they were in an appropriate place. The ordinance was created based on the input that they have received and noted that the State of Missouri has given them the requirement to create its own framework.

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Minutes are recorded based on Robert’s Rules of Order Newly Revised, 11th, 2013 Edition

In response to Alderman Harris’ question regarding the sergeants (supervisory staff) versus the officers, Ms. Thompson (referenced the 11 Factor Test) stated that the sergeants and the officers share a similar community of interest, just like the captains in the fire department share a similar community of interest with the firefighters. The biggest factor that they think come into play here are that the sergeants like the fire captains cannot hire, fire, promote, demote, or execute discipline. The sergeants and the officers have similar wage scales, hours, working conditions, and other terms and conditions of employment. She stated that the officers, corporals, and sergeants organized and formed their own bargaining unit and chose their union and should not be separated.

Alderman Harris stated that she would prefer to table the ordinance and would like to hear from the City’s attorney.

Alderman Boulton suggested that the Board go into an Executive Session to hear from the attorney.

Alderman Harris said that she is okay with the suggestion.

Greg Klupple, Legal Counsel, Fraternal Order of Police, Lodge 15, addressed the Board stating that Mayor Sanger misspoke when he stated that they are required to have a framework since we are excluded from the public sector labor law. He said that there is no requirement to have a framework and that he wanted to make that clear.

Mayor Sanger asked how would they establish what the rules were if they didn’t have a framework?

Mr. Klupple stated that like what they have done in the past with many other cities, noting that the City of St. Louis does not have an ordinance enacted with regards to a framework. They would have conversation with the City’s attorneys and then they would lay the ground rules for the collective bargaining process. He stated that he wanted to make clear that the law does not require the City of Clayton to enact the framework.

Mayor Sanger stated that he appreciated that clarification.

In response to Mr. Klupple’s statements, Alderman Boulton commented that the law has an absence of framework, you would be providing the framework under that circumstance. She thinks that what Mayor Sanger was simply saying is that with an absence of framework given to us by the Missouri Legislature we must discern and decide in some way to move forward. You have given us one viable alternative, thank you very much, but there are others too.

Alderman Winings moved that the Board go into executive session to consult with counsel. Alderman Boulton seconded.

The meeting reconvened at 7:48 p.m.

Mayor Sanger thanked everyone for their patience stating that they have had many conversations about this framework for them to once again hear about how this was all put together.

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Minutes are recorded based on Robert’s Rules of Order Newly Revised, 11th, 2013 Edition

City Attorney O’Keefe stated that it is important that everyone appreciate that the Board of Aldermen through its HR counsel has negotiated with the Fraternal Order of Police over the terms of this framework for about two and half months and it has been changed. The substantial changes were made at the request of the union. Not all the requests were agreed to, but substantial changes were made. The product is a fuller and better document than what was started out as a result of that collaboration and those discussions. With respect to the role of sergeants, not all sergeants in every department are the same, the sergeants in the Clayton Police Department do play important supervisory roles in our department. They are critical to the service of quality, performance of duties by their subordinates, and the service to the public that they generate and respecting that important role recognizing that critical difference is manifest in the terms of this proposed framework. It is appropriate to treat them differently when they play a more supervisory role in our department then some sergeants play in other departments. It is recognizing the critical role they play that makes the separate treatment an important part of the process. We appreciate the fact that counsel for the FOP has a different view and expect that we will continue to have discussions and have different points of view on a variety of subjects going forward. But we are in a position now to create a process which will bring to fruition the desire for representation by the officers. In general, it is perceived that it is time to move forward with that process.

Ms. Thompson addressed the Board confirming that there have been negotiations and some changes made, but she disagrees that those changes have been substantial. She stated that the biggest issue is the supervisory, sergeants should be in the same union.

Alderman Winings introduced Bill No. 6703, an ordinance to approve a collective bargaining agreement for law enforcement personnel to be read for the first time by title only. Alderman Boulton seconded.

City Attorney O’Keefe reads Bill No. 6703, first reading, An Ordinance adopting to Authorize Provisions for Collective Bargaining with Law Enforcement Personnel City of Clayton by title only.

The motion passed unanimously on a voice vote.

Motion made by Alderman Winings that the Board give unanimous consent to consideration for adoption of Bill No. 6703 on the day of its introduction. Alderman Boulton seconded.

The motion passed unanimously on a voice vote.

Alderman Winings introduced Bill No. 6703, an ordinance to approve a collective bargaining agreement for law enforcement personnel to be read for the second time by title only. Alderman Boulton seconded.

City Attorney O’Keefe reads Bill No. 6703, second reading, An Ordinance adopting to Authorize Provisions for Collective Bargaining with Law Enforcement Personnel City of Clayton by title only.

PRESENTATION OF THE POLICE DEPARTMENT STAFFING STUDY

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Minutes are recorded based on Robert’s Rules of Order Newly Revised, 11th, 2013 Edition

Richard Brady, Matrix Consulting Group, addressed the Board providing a PowerPoint presentation on the study. (presentation available in the City Clerk’s office)

AN ORDINANCE TO CONSIDER APPROVING A WAIVER AND AGREEMENT AND ASSIGNMENT AND ASSUMPTION OF REDEVELOPMENT AGREEMENT RELATING TO THE REDEVELOPMENT OF 216 N. MERAMEC

City Manager Owens reported that the City, RPB Clayton LLC (the “Developer”) and the Daniele Community Improvement District (the “CID”) entered into a Redevelopment Agreement dated January 28, 2014, relating to the redevelopment of the former Daniele Hotel, located at 216 N. Meramec Avenue, into a Hampton Inn & Suites.

The Redevelopment Agreement requires the CID to comply with all applicable provisions of Missouri law, including a requirement that the CID submit its annual budget to the City prior to approval by the CID. The Redevelopment Agreement also requires the CID to submit its annual audited financial statements to the City. The CID has not complied with those requirements. The City had no obligation, either under the CID Act or the Redevelopment Agreement, to remind the CID to submit those documents in a timely fashion or to otherwise demand those documents from the CID. The CID has already submitted its 2019 budget to the City and has agreed to prepare and submit all prior audits to the City no later than June 30, 2019.

Rob Klahr, Attorney, Armstrong Teasdale, addressed the Board to answer questions.

Alderman Winings introduced Bill No. 6704, an ordinance to approve a Waiver Agreement, an Assignment, and Assumption Agreement for the Daniele Community Improvement District to be read for the first time by title only. Alderman Boulton seconded.

City Attorney O’Keefe reads Bill No. 6704, first reading, An Ordinance of the City of Clayton, Missouri, Approving a Waiver and Agreement By and Among the City, the Daniele Community Improvement District and RBP Clayton LLC and An Assignment and Assumption of Redevelopment Agreement by and Among the City, the Daniele Community Improvement District, RBP Clayton LLC and AVR Clayton Hotel LLC; Authorizing Certain Actions in Connection Therewith; and Containing a Severability Clause by title only.

The motion passed unanimously on a voice vote.

Motion made by Alderman Winings that the Board give unanimous consent to consideration for adoption of Bill No. 6704 on the day of its introduction. Alderman Boulton seconded.

The motion passed unanimously on a voice vote.

Alderman Winings introduced Bill No. 6704, an ordinance to approve a Waiver Agreement, an Assignment, and Assumption Agreement for the Daniele Community Improvement District to be read for the second time by title only. Alderman Boulton seconded.

City Attorney O’Keefe reads Bill No. 6704, second reading, An Ordinance of the City of Clayton, Missouri, Approving a Waiver and Agreement By and Among the City, the Daniele Community Improvement District and RBP Clayton LLC and An Assignment and

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Minutes are recorded based on Robert’s Rules of Order Newly Revised, 11th, 2013 Edition

Assumption of Redevelopment Agreement by and Among the City, the Daniele Community Improvement District, RBP Clayton LLC and AVR Clayton Hotel LLC; Authorizing Certain Actions in Connection Therewith; and Containing a Severability Clause by title only.

AN ORDINANCE TO CONSIDER APPROVING THE IMPOSITION OF A USE TAX

City Manager Owens reported that on November 6, 2018, an election was held in the City of Clayton and a majority of the voters approved the imposition of a use tax. This tax will be a local use tax at the same rate as the local sales taxes of the City of Clayton. This tax will help level the economic playing field between local retail merchants and out-of-state vendors and the revenue received will support the provision of critical municipal services. Current estimates are that this tax authorization will likely generate approximately $215,000 in annual revenue.

Alderman Winings introduced Bill No. 6705, an ordinance to approve imposing the use tax to be read for the first time by title only. Alderman Boulton seconded.

City Attorney O’Keefe reads Bill No. 6705, first reading, an Ordinance of the City of Clayton, Missouri, Levying a Use Tax at the Same Rate as the Local Sales Tax of the City of Clayton, Missouri by title only.

The motion passed unanimously on a voice vote.

Motion made by Alderman Winings that the Board give unanimous consent to consideration for adoption of Bill No. 6705 on the day of its introduction. Alderman Boulton seconded.

The motion passed unanimously on a voice vote.

Alderman Winings introduced Bill No. 6705, an ordinance to approve imposing the use tax to be read for the second time by title only. Alderman Boulton seconded.

City Attorney O’Keefe reads Bill No. 6705, second reading, an Ordinance of the City of Clayton, Missouri, Levying a Use Tax at the Same Rate as the Local Sales Tax of the City of Clayton, Missouri by title only.

AN ORDINANCE TO CONSIDER APPROVING AN AMENDMENT TO CHAPTER 510 THE RIGHT-OF-WAY USAGE CODE RELATED TO SMALL CELLS

City Manager Owens reported that City staff is requesting an amendment to Chapter 510 of the City Code of Ordinances to enact certain provisions related to small cells. The Missouri Legislature has enacted changes in related statutes regarding small cells (HB 19914 (2018).

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Minutes are recorded based on Robert’s Rules of Order Newly Revised, 11th, 2013 Edition

Alderman Winings introduced Bill No. 6706, an ordinance to approve an amendment to the Right-Of-Way Usage Code as related to small cells to be read for the first time by title only. Alderman Boulton seconded.

City Attorney O’Keefe reads Bill No. 6706, first reading an Ordinance Amending Chapter 510 of Title V of the Municipal Code by the Addition of a New Article and Provisions Regarding Right-Of-Way Usage and Certain Wireless Facilities by title only.

The motion passed unanimously on a voice vote.

Motion made by Alderman Winings that the Board give unanimous consent to consideration for adoption of Bill No. 6706 on the day of its introduction. Alderman Boulton seconded.

The motion passed unanimously on a voice vote.

Alderman Winings introduced Bill No. 6706, an ordinance to approve an amendment to the Right-Of-Way Usage Code as related to small cells to be read for the second time by title only. Alderman Boulton seconded.

City Attorney O’Keefe reads Bill No. 6706, second reading an Ordinance Amending Chapter 510 of Title V of the Municipal Code by the Addition of a New Article and Provisions Regarding Right-Of-Way Usage and Certain Wireless Facilities by title only.

AN ORDINANCE TO CONSIDER APPROVING AN AMENDMENT TO CHAPTER 510, THE RIGHT-OF-WAY USAGE CODE RELATED TO INSURANCE LIMITS AND FEES

City Manager Owens reported that City staff is requesting an amendment to Chapter 510 of the City Code of Ordinances to update certain provisions of the code. The Missouri Legislature has enacted changes in related statutes regarding small cells (HB 19914 (2018)). A companion ordinance has been prepared to address those changes.

Staff thought it advisable to update the application fee for other types of right-of-way usage to be consistent with the new application fee for small cell related work. In addition, while the code requires insurance meeting the requirements of State law, it sets out specific insurance limits, while the state sovereign immunity limit changes annually.

Alderman Winings introduced Bill No. 6707, an ordinance to approve an amendment to the Right Of-Way Usage Code as it relates to insurance limits and fees to be read for the first time by title only. Alderman Boulton seconded.

City Attorney O’Keefe reads Bill No. 6707, first reading, an Ordinance Amending Two Provisions in Chapter 510 of Title V of the Municipal Code Relating to Insurance Requirements for Right-Of-Way Users and the Fee for a Right-Of-Way Work Permit by title only.

The motion passed unanimously on a voice vote.

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Minutes are recorded based on Robert’s Rules of Order Newly Revised, 11th, 2013 Edition

Motion made by Alderman Winings that the Board give unanimous consent to consideration for adoption of Bill No. 6706 on the day of its introduction. Alderman Boulton seconded.

The motion passed unanimously on a voice vote.

Alderman Winings introduced Bill No. 6707, an ordinance to approve an amendment to the Right Of-Way Usage Code as it relates to insurance limits and fees to be read for the second time by title only. Alderman Boulton seconded.

City Attorney O’Keefe reads Bill No. 6707, second reading, an Ordinance Amending Two Provisions in Chapter 510 of Title V of the Municipal Code Relating to Insurance Requirements for Right-Of-Way Users and the Fee for a Right-Of-Way Work Permit by title only.

Other

Alderman Winings reported on the following: • The CRSWC reviewed and discussed plans for The Center of Claytons’ renovation project.

Alderman Lintz reported on the following: • Plan Commission o Proposed daycare at Clayton Road is scheduled for the January 22 BOA meeting. o Approved a CUP for a rooftop patio/party room for Sashas. o Approved a lot consolidation for a new condo building on Topton Way.

Alderman Berkowitz reported • Ice Rink Meeting with CCF; requested that they focus on a strategic plan when seeking donors. • Ward 2 resident held a CCF history lecture on the world’s fair; very good lecture. • Clayton Chamber of Commerce luncheon at the Ritz-Carlton; Bil DeWitt, Jr. speaker – very good.

Alderman Harris reported on the following: • CCF Major Gifts Committee met today; great discussion on the ice rink and how to position the facility as more of a regional amenity that is part of the whole concept of connecting the Arch grounds, Forest Park and Clayton. • Chamber of Commerce luncheon; Bill DeWitt, Jr. mentioned Better Together.

Mayor Sanger reported on the following: • Cultural Festivals/Art Fair has contracted with Cindy Lerrick during the director vacancy. • Ribbon Cutting – Perimeter Solutions, 8000 Maryland Avenue; company makes fire retardant equipment for planes.

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Minutes are recorded based on Robert’s Rules of Order Newly Revised, 11th, 2013 Edition

Motion was made by Alderman McAndrew that the Board adjourn to a closed meeting, with a closed vote and record, as authorized by Section 610.021(1), (2) and (3) Revised Statutes of Missouri, relating to legal issues, real estate and/or personnel, and to discuss matters related to negotiation of a contract pursuant to Section 610.021(12), RSMo. and/or proprietary information pursuant to Sec. 610.021(15), and/or information related to public safety and security measures pursuant to Section 610.021(18) and (19) RSMO. Alderman Harris seconded the motion.

Alderman Winings – Aye; Alderman Boulton – Aye; Alderman Lintz – Aye; Alderman Berkowitz – Aye; Alderman Harris – Aye; Alderman McAndrew – Aye; and Mayor Sanger – Aye.

There being no further regular business the meeting was adjourned at 9:05 p.m.

____________________________

Mayor

ATTEST:

____________________________ City Clerk

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December 11, 2018 — Meeting Minutes