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HomeMy WebLinkAboutCC Minutes 2008-09-02SRCC Minutes (Regular) 09/02/2008 Page 1 IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, TUESDAY, SEPTEMBER 2, 2008 AT 8:00 P.M. Regular Meeting: San Rafael City Council Also Present: Ken Nordhoff, City Manager Robert F. Epstein, City Attorney Esther C. Beirne, City Clerk OPEN SESSION — COUNCIL CHAMBER — 6:00 PM Mayor Boro announced Closed Session items. CLOSED SESSION — CONFERENCE ROOM 201 — 6:00 PM 1. (a) Conference with Leaal Counsel — Existing Litigation Government Code Section 54956.9(a) Case Name: Alisa Alioto v. Citv of San Rafael Tort Claim Present: Albert J. Boro, Mayor Cyr N. Miller, Vice -Mayor Greg Brockbank, Councilmember Damon Connolly, Councilmember Barbara Heller, Councilmember Absent: None (b) Conference with Labor Negotiators — Government Code Section 54957.6(a) Negotiators: Ken Nordhoff, Jim Schutz, Leslie Loomis, Cindy Mosser, Nancy Mackie, Chris Gray Employee Organization(s): San Rafael Fire Chief Officers' Association San Rafael Firefighters' Association (c) Public Emolovee Performance Evaluation — Government Code Section 54957 Title: City Manager (d) Conference with Labor Negotiators — Government Code Section 54957.6(a) Negotiators: Albert Boro, Damon Connolly Unrepresented Management Employee: City Manager City Attorney Robert Epstein announced that no reportable action was taken. ORAL COMMUNICATIONS OF AN URGENCY NATURE: 8:02 PM Public Health Issue: - File 9-1 Ceci Simontacchi expressed concern regarding the health issue of public urination and defecation by day laborers throughout San Rafael. She was not seeking public restrooms, rather would like to educate people. To this end, she had created an educational flyer as part of an outreach program, and inquired whether it would be in order for her to distribute these. She reported that Nancy Mackie had given her time and assistance with the issue, and she intended to seek help also from Canal Community Alliance with regard to an outreach program. She stated this was a health issue that needed to be addressed. Mayor Boro suggested that Ms. Simontacchi work with Ms. Mackle and the Police Department and meet with Canal Community Alliance, etc., to discuss the issue prior to distributing the flyer on her own. CONSENT CALENDAR: Councilmember Miller moved and Councilmember Connolly seconded, to approve the Consent Calendar as follows. SRCC Minutes (Regular) 09/02/2008 Page 1 SRCC Minutes (Regular) 09/02/2008 Page 2 ITEM RECOMMENDED ACTION Acceptance of Statements of Disclosure (CC) — File 9-4-3 Accepted statements of disclosure. Second Reading and Final Adoption of Resolution No. RESOLUTION NO. 12557 — 12557 - RESOLUTION APPROVING AN A RESOLUTION APPROVING AN AMENDMENT TO THE AMENDMENT TO THE GENERAL PLAN GENERAL PLAN 2020 (GPA07-005) TO CHANGE THE 2020 (GPA07-005) TO CHANGE THE LAND USE MAP OF THE LAND USE ELEMENT FOR LAND USE MAP OF THE LAND USE THE 1.35 -ACRE SITE LOCATED AT 226 MAGNOLIA AVE ELEMENT FOR THE 1.35 -ACRE SITE FROM LARGE LOT RESIDENTIAL TO PUBLIC/QUASI- LOCATED AT 226 MAGNOLIA AVE PUBLIC (P/QP) FOR DOMINICAN UNIVERSITY; APN: FROM LARGE LOT RESIDENTIAL TO 015-121-10 (CD) — PUBLIC/QUASI-PUBLIC (P/QP) FOR File 10-2 (3) Maqnolia Ho. x 115 (2020) DOMINICAN UNIVERSITY; APN: 015- 121-10 4. Second Readinq and Final Adoption of Ordinance ORDINANCE N0. 1868 - No. 1868 - File "AN ORDINANCE APPROVING AN "AN ORDINANCE APPROVING AN AMENDMENT TO AMENDMENT TO THE ZONING MAP THE ZONING MAP ZC07-003) TO RECLASSIFY ZC07-003) TO RECLASSIFY CERTAIN CERTAIN REAL PROPERTY FROM SINGLE-FAMILY REAL PROPERTY FROM SINGLE - RESIDENTIAL (R -1A) DISTRICT TO PLANNED FAMILY RESIDENTIAL (R -1A) DISTRICT DEVELOPMENT (PD) DISTRICT AT 226 MAGNOLIA TO PLANNED DEVELOPMENT (PD) AVENUE, AND RESCINDING ORDINANCE NO. 1730 DISTRICT AT 226 MAGNOLIA AVENUE, THAT RECLASSIFIED DOMINICAN UNIVERSITY AND RESCINDING ORDINANCE NO. PROPERTIES AS PART OF THE DOMINICAN COLLEGE 1730 THAT RECLASSIFIED DOMINICAN CAMPUS DEVELOPMENT PLAN APPROVED IN 1998 UNIVERSITY PROPERTIES AS PART AND INCORPORATING THOSE PRIOR APPROVED OF THE DOMINICAN COLLEGE REZONING ACTIONS AS PART OF THIS APPROVAL AT CAMPUS DEVELOPMENT PLAN 226 MAGNOLIA AVENUE; APN: 015-121-10" (CD) — APPROVED IN 1998 AND File 10-2 (3) Maqnolia Ho. x 115 (2020) INCORPORATING THOSE PRIOR APPROVED REZONING ACTIONS AS PART OF THIS APPROVAL AT 226 MAGNOLIA AVENUE; APN: 015-121-10" Resolution Granting 2008 Project Selection Process (PSP) RESOLUTION NO. 12564 Determinations for Development in the Central San Rafael RESOLUTION GRANTING 2008 Area; PSP08-001, PSP08-002, PSP08-003, & PSP08-004 PROJECT SELECTION PROCESS (PSP) (CD) — File 10-2 (3) Maqnolia Ho. x 115 (2020) DETERMINATIONS FOR DEVELOPMENT IN THE CENTRAL SAN RAFAEL AREA; City File Nos. PSP08- 001, PSP08-002, PSP08-003 & PSP08- 004 Summary of Legislation Affecting San Rafael (CM) — Approved staff recommendation: File 116 x 9-1 SB 375 Transportation Planning — Steinberg — Support AB 31 Statewide Park Development and Community Revitalization Act of 2008 — DeLeon — Support Resolution Appointing a Vice Chair for the Critical Facilities RESOLUTION NO. 12565 Committee (CM) — File 9-2-57 RESOLUTION APPOINTING A VICE - CHAIR FOR THE CRITICAL FACILITIES COMMITTEE Resolution Authorizing the Mayor and City Clerk to Removed from agenda at request of Execute an Agreement Between the County of Marin and staff. the City of San Rafael Regarding the Family Literacy SRCC Minutes (Regular) 09/02/2008 Page 2 F.L.A.G.SHIP Program (from 7/1/08 — 6/30/09) (Lib) - Resolution Authorizing the Mayor and City Clerk to Execute an Agreement Between the County of Marin and the City of San Rafael Regarding the Marin Literacy Program (from 7/1/08 — 6/30/09) (Lib) 10. Resolution Proclaiming Marin Literacy Month September 2008 (Lib) — File 102 x 9-3-61 11. Resolution Approving the Purchase of Six Marked Police Vehicles from Folsom Lake Ford Sales in the Amount of $155,460.42, as Part of California Multiple Award Schedule Contracts Program Which is Exempt from Bid Process (PD) — File 4-2-353 x 9-3-30 SRCC Minutes (Regular) 09/02/2008 Page 3 Removed from agenda at request of staff. RESOLUTION NO. 12566 RESOLUTION PROCLAIMING MARIN LITERACY MONTH SEPTEMBER 2008 RESOLUTION NO. 12567 RESOLUTION APPROVING THE PURCHASE OF SIX MARKED POLICE VEHICLES FROM FOLSOM LAKE FORD SALES IN THE AMOUNT OF $155,460.42, AS PART OF CALIFORNIA MULTIPLE AWARD SCHEDULE CONTRACTS PROGRAM WHICH IS EXEMPT FROM BID PROCESS 12. Report on Bid Opening and Resolution Awarding the RESOLUTION NO. 12568 Contract for Slurry Seal 2008/2009, Project No. 11111, to RESOLUTION AWARDING THE Graham Contractors, Inc., in the Amount of $317,998.00 CONTRACT FOR SLURRY SEAL (Bid Opening Held on Tuesday, August 12, 2008) (PW) — 2008/2009, PROJECT NO. 11111, TO File 4-1-605 x 9-3-40 GRAHAM CONTRACTORS, INC., IN THE AMOUNT OF $317,998.00 13. Resolution Waiving Competitive Bidding and Authorizing a Public Auction Services Agreement with First Capitol Auction, Inc. for the Disposition of City Surplus Vehicles and Equipment (PW) — File 4-3-498 x 9-3-40 14. Resolution Authorizing Temporary Closure of Ritter Street from Lincoln Avenue to Third Street on September 20 & 21, 2008, from 9:00 a.m. to 4:30 p.m. to Support the Goodwill Ritter Center Partnership Donation Drive / SOS Marin (RA) — File 11-19 RESOLUTION NO. 12569 RESOLUTION WAIVING COMPETITIVE BIDDING AND AUTHORIZING A PUBLIC AUCTION SERVICES AGREEMENT WITH FIRST CAPITOL AUCTION, INC. FOR THE DISPOSITION OF CITY SURPLUS VEHICLES AND EQUIPMENT RESOLUTION NO. 12570 RESOLUTION AUTHORIZING TEMPORARY CLOSURE OF RITTER STREET FROM LINCOLN AVENUE TO THIRD STREET SEPTEMBER 20 AND 21, 2008 FROM 9:00 AM TO 4:30 PM TO SUPPORT THE GOODWILL-RITTER CENTER PARTNERSHIP DONATION DRIVE I SOS MARIN AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None SPECIAL PRESENTATION: 15. INTRODUCTION OF NEW PRINCIPAL AT DAVIDSON MIDDLE SCHOOL (CD) - FILE 9-2-1 Linda Jackson, San Rafael School Board Trustee, introduced Dr. Harriet R. MacLean, new Principal of Davidson Middle School. With twenty years of educational experience, Dr. MacLean mentored middle school principals in the Oakland School District, and was Principal in West Contra Costa County. She is fluent in French and Russian and speaks Spanish quite well. Dr. MacLean stated she deeply believed in the involvement of communities in schools and that Davidson was her SRCC Minutes (Regular) 09/02/2008 Page 3 SRCC Minutes (Regular) 09/02/2008 Page 4 dream job. Commenting that her father always said: "believe half of what you see and none of what you hear," she stated that every day she thinks of that and noted she had never seen the level of community involvement that she saw at Davidson. Dr. MacLean stated that their big challenge at the school was the achievement gap with English learners. She invited all to come to Davidson and meet the students, and also to browse their soon-to-be updated website. Mayor Boro thanked Dr. MacLean for attending this evening and believed Councilmembers would take the opportunity to visit the school. He invited her to the dais to meet the Councilmembers and presented her with a City pin. OTHER AGENDA ITEMS: 16. a) CONSIDERATION OF RESOLUTION APPROVING USE OF STATE OF CALIFORNIA OFFICE OF TRAFFIC SAFETY GRANT FUNDS IN THE AMOUNT OF $577.154 FOR THE "AVOID THE MARIN 13 DUI CAMPAIGN — MARIN COUNTY" ENFORCEMENT PROGRAM FROM OCTOBER 1. 2008 — JANUARY 31. 2012 (PD) -FILE 9-3-30 b) CONSIDERATION OF RESOLUTION APPROVING USE OF STATE OF CALIFORNIA OFFICE OF TRAFFIC SAFETY GRANT FUNDS IN THE AMOUNT OF $94.189 FOR THE "DUI ENFORCEMENT AND AWARENESS PROGRAM" FROM OCTOBER 1. 2008 — SEPTEMBER 30.2009 (PD) — FILE 9-3-30 Avoid the Marin 13 Grant: Mayor Boro stated he would invite Chief of Police Matt Odetto to introduce the items. City Attorney Robert Epstein would provide a response to some of the legal issues contained in the report, followed by Council questions or clarifications. The item would be deliberated on subsequent to hearing from the public. Chief of Police Odetto reported that traffic safety in the community was a primary concern of the City Council and a mandate for the Police Department (PD). Traffic management, education and pro -active enforcement were some of the key components needed to address these safety concerns. He indicated that this sentiment had been echoed by many neighborhood, business and community organizations and was adopted as a PD key objective. Although this area was a priority identified in this year's budget, additional traffic safety programs and funding could be used. The Police Department had been fortunate in previous years to have obtained additional grant funding for traffic enforcement and education through the Office of Traffic Safety (OTS). The programs participated in had been successful thus far and the Office of Traffic Safety requires that all agencies report their statistics, also providing this information to the community and media when requested. Chief Odetto stated that the OTS selective enforcement grants would enable the City to address previously identified problems such as red light enforcement, speeding, DUI, unlicensed drivers, and seatbelt compliance programs and pay for needed equipment to be shared with allied agencies. Police Department staff completed outreach with Canal Alliance and Consolio that entailed communicating the purpose of the OTS program, in addition to providing press releases to the community identifying traffic safety programs, locations and dates and times. Chief Odetto reported having met with David Rubinson this morning to discuss collaboration on some possible grant opportunities. Reporting that since 2001, OTS funded the SRPD to act as a liaison for the Marin Police Chiefs Association for the purpose of coordinating the "Marin Avoid the Marin 13" campaign — a multi -agency DUI reduction program, Chief Odetto stated that the local effort was coordinated through the statewide "Avoid" priority program. In addition, this program was a means to educate the public on the dangers of driving while intoxicated. He noted that every municipality, including the Marin Sheriff's Department, Marin Community Police and CHP (California Highway Patrol) participate in this program. Chief Odetto stated that the proposed new program would run from October 1, 2008 to January 31, 2012, noting the grant requirements A -H were listed on page 5-6 of the Staff Report. The grant would be funded through the federal government and the National Highway Transportation Safety Administration, which in turn administers the necessary funding through the OTS. He noted that no General Fund money would be used for the program. Mayor Boro invited Chief Odetto to define highlights and changes, in particular with respect to saturation, and to comment on the high number of accidents. Chief Odetto deferred to Lieutenant David Starnes and Traffic Sergeant Glenn McElderry to provide such information to the Council. Regarding the difference between the current and new "Avoid" grants, Lt. Starnes explained that the current "Avoid" grant ends after this winter period. The current grant calls for three DUI checkpoints during the winter period, one SRCC Minutes (Regular) 09/02/2008 Page 4 SRCC Minutes (Regular) 09/02/2008 Page 5 during the Memorial Day holiday and one during the Labor Day holiday, together with a multi -agency DUI Task Force during the winter holiday. He explained that while the new grant would be considerably different, there would still be multi -agency DUI checkpoints throughout the County; however, they would also focus on saturation patrols, multi -agency task force, court sting and warrant operations. He noted the numbers were very high on saturation patrols. Lt. Starnes reported that during the entire life of the grant, 68 DUI saturation patrols would be conducted throughout the County utilizing the Multi -Agency Task Force of approximately 20 officers, whereas saturation patrols would consist of two or three officers saturating San Rafael, etc. There would be twice -yearly warrant services throughout the County, together with court sting operations. DUI Enforcement and Awareness Proqram Grant: Chief of Police Odetto stated that the DUI Enforcement and Awareness grant was a selective grant, agency specific for the San Rafael Police Department. Sergeant Mac Elderry reported that this grant initially started as a selective enforcement grant to replace the grant ending in September. Speaking with the OTS, they wanted to focus funds more on DUI and drivers' license enforcement, taking away red light and speeding enforcement operations. He explained this was a one-year grant requiring five DUI/Drivers' License checkpoints, six DUI saturation patrols, two warrant service patrols, and two stakeout operations focusing on the worst repeat DUI offenders driving on suspended licenses. In addition, the department would continue its "hot sheet" program, which provides information on repeat DUI and drivers' license offenders. It requires that six officers attend a standard field sobriety testing program. Chief Odetto added that these grants were about public safety and the programs were just one mechanism to reduce the likelihood of DUI offenders and DUI crashes. City Attorney Robert Epstein reported that staff had set forth legal analysis in the Staff Report. Fourth Amendment issues were at play with administrative detentions of the sort proposed in the grant to continue in San Rafael. Having researched the law thoroughly in this area, he reported there was a handful of U.S. Supreme Court cases that were applicable. It was important to mention them because they were discussed in part by comments received from the public. Mr. Epstein reported that 30 years ago the court considered the issue of administrative detentions in two cases: Martinez-Fuerte and Delaware v. Prouse, and later in the California Supreme Court case frequently cited, Ingersoll v. Palmer, the Delaware v. Prouse decision was mentioned. In the Delaware case, the U.S. Supreme Court first contemplated the concept that it would be valid under the Fourth Amendment for an administrative detention to include a request to check drivers' licenses and registration. The courts visited roadblock detentions in other contexts in Michigan v. Sitz, which was specifically a sobriety checkpoint case, and later in the case of Indianapolis v. Edmond, and most recently Illinois v. Lidster- 2004. Mr. Epstein invited his colleague Mr. Berberian, Marin County District Attorney, to add to the discussion if he so chose, as he was more familiar with this area of law. After reading all of the cases in concert, Mr. Epstein was confident that the SRPD, in conjunction with the other Marin County law enforcement agencies, had been operating checkpoints in a fashion consistent with the appellate authorities mentioned and would expect that would continue under the proposed grants. Councilmember Brockbank requested clarification on the number of saturation patrols over the life of the grant. Lt. Starnes stated the grant proposed 68 saturation patrols by September 30, 2009, with an additional 96 by 2010, an additional 96 by 2011, and an additional 28 by 2012. Lt. Starnes confirmed for Mayor Boro that this was countywide for the DUI saturation patrols, not the multi -agency saturation patrols. Councilmember Brockbank noted that the language in the staff report specified the number of saturation patrols had significantly increased to 288 reflecting the determination by OTS that this enforcement method was to be utilized far more frequently than sobriety checkpoints. He assumed that OTS had concluded that with grants it wanted more saturation patrols and slightly fewer DUI/DL checkpoints. Lt. Starnes responded that OTS was asking for 18 DUI and DL checkpoints during the lifetime of the grant. He confirmed for Councilmember Brockbank that it was a few more DUI and DL checkpoints and a whole lot more saturation checkpoints. Councilmember Brockbank inquired why the number of saturation patrols would increase dramatically in the Avoid the 13 grant but not in the STEP grant, as they were both from OTS. SRCC Minutes (Regular) 09/02/2008 Page 5 SRCC Minutes (Regular) 09/02/2008 Page 6 Chief Odetto responded that one grant was countywide dealing with a large geographic area versus the City of San Rafael, and that saturation patrols were good for both areas. Mayor Boro noted that the grants had different criteria, one had more saturation as it was countywide, while the other was a grant targeted primarily at the City of San Rafael. Regarding the operation of DUI checkpoints, Councilmember Connolly noted that questions arose about the drivers' license check aspect of the DUI checkpoint and inquired whether they could be separated out. He had come across a California Attorney General's opinion that predated the Ingersoll case, which recognized the checking of drivers licenses as incidental to a DUI checkpoint. It specifically stated, "After being stopped, a motorist may be requested to produce a driver's license or vehicle registration and is asked questions while an officer looks for signs of alcohol impairment." Councilmember Connolly inquired whether the process of asking for a license as part of that incidental contact was an opportunity to observe whether a driver was driving under the influence. Lt. Starnes reported that he spoke with the "Avoid" coordinator this evening who confirmed that it was a requirement of the DUI/DL checkpoints. If the drivers' license aspect were to be eliminated, the OTS would have to reevaluate whether the SRPD would receive the grant. With regard to the question of requesting the driver's license, he indicated that it was part of the officer's responsibility to check for signs of intoxication and impairment. Councilmember Connolly stated it was his sense that the two could not be separated out, and that one was incidental to the other. Councilmember Heller inquired about the high number of traffic accidents in the City. Mr. Epstein reported having conferred with City Traffic Engineer Nader Mansourian last week and discussing different aspects concerning the City, particularly in the downtown area, that made it different from some other communities against which San Rafael was measured in connection with the OTS grant funding determination, where San Rafael was analyzed against cities sized in population from 50,000-100,000. San Rafael being an older city with short blocks gave drivers the perceived ability to beat the light resulting in a higher accident rate. Noting a lot of other factors played into this also, Mr. Epstein stated that Mr. Mansourian could explain why a statistical analysis he uses would demonstrate some different conclusions than perhaps what the OTS was basing its funding decision upon. That information was provided in the staff report because that was what the OTS was looking at when deciding to whom they would offer grants. Councilmember Brockbank stated he was confused by the statistics; however, he understood that the lower the ranking the greater the City's number of accidents. In the case of pedestrian accidents, the City was 102 out of 103 cities, and he read that to mean the City was the second best having the second fewest number of accidents. Indicating this was incorrect, Mr. Epstein stated staff had made an effort to be clear by rewriting the section several times; however, it was confusing. He explained that San Rafael was measured by that specific criterion, 102 out of 103 among California cities sized 50,001 to 100,000. Mr. Epstein confirmed for Councilmember Brockbank that it was a ratio based on the number of accidents per thousand people of population. Councilmember Brockbank noted that the rankings were 102, 90, 85 and 64 out of 103, with an average of 67, and he inquired how these four numbers averaged out to 67. Mr. Nordhoff clarified that the statistics were illustrative of the overall ranking of 67 and not the entire grouping of all the categories. These numbers were not the exclusive four. Mr. Epstein added that San Rafael might be measured against a valley city of 80,000 people with entirely different traffic patterns and geographical makeup, so it could be misleading. Mayor Boro invited public input and requested speakers to maintain comments to 2-3 minutes. Edward S. Berberian, Marin County District Attorney, speaking in support of the grant requests, stated he hoped the City Council would approve them. He believed it vitally important, countywide, to address the issue of alcohol abuse in the County, which had many facets and aspects. He indicated that alcohol and its abuse touched so much of what came through his office - public intoxication and family violence incidents involving alcohol, etc. The focus tonight was more on the driving -related DUI violations, which countywide, was a problem in Marin. He had observed Marin agencies take a fair and reasoned approach when dealing with DUI checkpoints. He believed the process they used had been very scrupulously monitored by City Attorneys, SRCC Minutes (Regular) 09/02/2008 Page 6 SRCC Minutes (Regular) 09/02/2008 Page 7 Marin County Counsel and the District Attorney's office. He supported San Rafael's efforts to assist the County in implementing a good, strong and fair DUI enforcement program. David Maver, San Rafael, indicated he was in favor of the checkpoints having observed two of them. He reported that at one, a driver slowed but did not stop and at another, his driver's license was requested; however, he was disappointed that his registration and insurance were not requested. Yesterday, coming back from Point Reyes on Limantour Road driving at 25 miles per hour uphill with poor visibility, a Porsche passed him - the same group that had been partying at the beach all day. Residing on D Street, Mr. Mayer reported that his truck was totaled last year, not by an unlicensed or uninsured driver. While he was compensated, he still lost his truck and was concerned about speeders on D street. The SRPD informed him there was a lawsuit preventing radar tickets from being issued, but once resolved they would begin enforcement. Last May, a drunk driver hit a car and was released on his own recognizance even though the officer stated he had a .04 blood alcohol content. He believed enforcement was not sufficient and that a person with .04 alcohol level should go to jail. He hoped the grants would be approved. David Rubinson stated that Mayor Boro framed it incorrectly by referring to this as a dialogue between people who supported or did not support checkpoints, as all supported fighting drunk driving and the checkpoints. He pointed out that the OTS does not require drivers' license checks, rather they recommend them. He submitted a list of suggestions and recommendations from the National Highway Traffic Safety Administration for sobriety checkpoints, very few of which had been followed. He noted that checkpoints could work but not in a vacuum as the community must be involved. Pleased with this evening's hearing, Mr. Rubinson stated that it should have taken place in June when this application was first contemplated. He stressed the need for more dialogue and collaboration because this issue was tearing the community apart and it could be a lightening rod for bringing the community together to design local programs. Mr. Rubinson reported having had a wonderful meeting today with Chief Odetto and they both agreed that collaboration, true cooperation and mutual respect between the community and police was essential but it was not being carried out. Mr. Rubinson urged the City Council to work with the community to build a program to get drunk drivers off the street. Francisco Diaz, San Rafael, noted signs were posted at the Lincoln checkpoint to the effect that drivers' licenses should be ready to be viewed and he inquired why this method was used at this checkpoint, if having a driver fumble for his license as proof of intoxication was an effective means. Jerry Moore stated that if he had something to say against the grants, he could not compete with the fact that the U.S. Supreme Court stated they were legal and that the City would get a million dollars to do them. He recalled that his great, great, great grandfather, Alfred Smith, had three contacts with the federal government: Every ten years the census man came by, every two years he voted, and every Saturday he went to town to get the mail. Other than that, the federal government did not exist for him. His attitude and now Mr. Moore's, was: "you take care of business, provide for the common defense, promote the general welfare, and if I need you I will call you." He understood DUI checkpoints had been determined to be legal by the Supreme Court. He had read about the Martinez-Fuerte case and Justice Brennan's dissent, where he stated: "Moved by whatever momentary evil has aroused their fears, officials, perhaps supported by a majority of citizens, may be tempted to conduct searches that sacrifice the liberty of each citizen to assuage the perceived evil, but the Fourth Amendment rests on the principle that equitable balance between the individual and society depends on the recognition of the right to be let alone, the most comprehensive right, and the right most valued by civilized men." David Quinlev inquired about feedback from the Canal groups, and whether there were more checkpoints in the Canal than other parts of the County. Flor Emert, San Rafael, stated she was all for removing drunk drivers from the streets because she was a victim and spent nine months in bed. She questioned why vehicles had to be impounded when people did not have a valid driver's license, rather than permitting someone else with a valid driver's license to drive the car. Roaer Stoll, San Rafael, stated it was clear that the program was ineffective, illegal and an abuse of civil rights and had little to do with the important effort to stop drunk driving. Emphasizing how it terrorizes an entire community in San Rafael, he reported that having watched the Andersen Drive checkpoint, he imagined how it must feel if he were undocumented and driving without a license. He noted that many of these people came from places where government policy was enforced by terror and he urged the City Council to reject the grants. SRCC Minutes (Regular) 09/02/2008 Page 7 SRCC Minutes (Regular) 09/02/2008 Page 8 Dick Sadlier, San Rafael, stated he supported the grants completely. Having discussed the issue with Captain Keller, he reported that the grants were given with certain procedures to be followed, and if not followed, the grants would be withdrawn. He stated that San Rafael was being especially careful to follow all the steps required in the grant to ensure that they continued. He thought it was an important community issue and guessed that those not very sympathetic to drunk driving had not had a personal experience in their own family involving this issue. He had, and commented that it could be devastating to the family and individual. He felt this was an important program and supported what the Council was doing. Alan Barnett, Mill Valley, stated that so many of the working people who serve those in Mill Valley live in San Rafael, and he questioned how people on the road and those trying to find work could be protected. He hoped the City Council would lobby Sacramento to provide the undocumented with documentation to pass drivers' license exams. He thought it was the route to go, albeit a hard battle, but one where the City Council could protect everybody in the community. Jim Geraghty, Canal, stated checkpoints were designed for education and deterrents of DUls and not for arrests, and from statistics he had seen, they were not very successful. The National Traffic Safety Administration suggested that checkpoints were just one of many ways to lower DUI in the community, and while there were a lot of mandates, there was no funding to provide educational material to the community. He reiterated that all were in favor of getting drunk drivers off the road; however, checkpoints were not effective. By seeking grants, the City was failing the community, especially in the Canal where there was a drinking problem. He inquired what components the police were going to pursue to lock down the illegal sale of alcohol to minors in the Canal. Mr. Geraghty suggested enlisting the help of the Marin Institute, an alcohol watchdog group, and County Health Department to develop better programs to educate the community and work to solve problems. He believed that checkpoints created rather than solved problems for the community. Responding to Mayor Boro regarding questions, City Attorney Robert Epstein stated he did not believe any legal issues arose; however, he requested a brief recess to consult with staff. Resuming, Mr. Nordhoff summarized questions from members of the public and staff provided responses Q. Whether drivers' license checks were required or recommended as part of the grants: A. Concerning the Avoid the 13 grant, Lt. Starnes stated that under the project objectives it was written that all agencies throughout the County were to conduct a minimum of 18 drivers' license and DUI checkpoints. This was only a small part of the grant, which included many saturation patrols, task force, court sting operations, etc. With regard to the drivers' license portion, in his conversations with the OTS coordinator, Lt. Starnes stated he indicated they would have to reevaluate the grant, and determine if another agency would support the drivers' license checkpoints because they strongly recommended that drivers' licenses be checked at the checkpoints. Q. Suggestions about community involvement before filing for the grants and feedback from Consilio and Canal Alliance: A. Chief of Police Odetto reported that he and David Rubinson had a good conversation on this topic and possible future collaborative efforts with the community. With regard to CCA and Consilio, Chief Odetto reported that the use of alternative identification cards and impoundment of vehicles were discussed with these groups. He commented that the City Attorney could quote the section as to the reason for impoundment. Mayor Boro inquired whether these organizations were aware of what the grants being applied for specified and whether their absence this evening was indicative of their understanding of what the City was doing. Chief Odetto stated it was interpretation that they did understand. Mr. Nordhoff noted he had been in meetings with Canal Community Alliance where towing of vehicles, not related to checkpoints, was often discussed. A fair amount of time was being spent educating the community about the programs and their intent, also ensuring that information was published in two languages. Mr. Nordhoff stated that the intention was not just to request acceptance of the grants, rather to work with the entire community. Staff would also report out annually and intermittently, and meet with the community, including Concilio and Canal Community Alliance, to explain the reasons for what was being done and why. Q. Why signs were displayed about having drivers' licenses ready to show at the Lincoln Avenue checkpoint: SRCC Minutes (Regular) 09/02/2008 Page 8 SRCC Minutes (Regular) 09/02/2008 Page 9 A. Sgt. McElderry stated that signs in both English and Spanish were posted in advance in order to expedite the process of going through the checkpoints. With reference to the document submitted by Mr. Rubinson quoting a paragraph from the Ingersoll decision which cites multiple authorities including the Delaware v. Prouse case, Mr. Epstein stated that in Ingersoll, the only item at issue was the question of sobriety checkpoints; it was not a drivers' license checkpoint case. He believed Mr. Rubinson was suggesting that by requesting a drivers' license somehow the dictates of Ingersoll were not being followed because it contemplated a brief detention. Mr. Epstein stated that in his judgment, particularly when drivers were being requested to have their drivers' licenses out before encountering the officer, a brief detention was what was most likely to occur. That reading was consistent with the other authorities he cited earlier and that he reviewed to prepare for this evening's meeting. Respectfully, he did not believe the one paragraph pulled out of Ingersoll was dispositive on the legality of drivers' license checking, which again this evening was announced to be "illegal", with which he heartily disagreed. In his judgment, based on his understanding of the operations of the checkpoints and his review of the law, what the Marin County law enforcement agencies were doing was lawful. Q. Vehicle impounds - looking at some alternatives, and whether someone else could take the car home: A. Mr. Epstein explained decisions were based on Vehicle Code, Sections 14602.6 and 14607.6 both of which related to the impounding of vehicles when a person driving a vehicle was asked to present a driver's license and was unable to do so. The statutes in this case were mandatory where the language shall was used. An officer who found a person unable to produce a driver's license did not have discretion under these statutes to choose not to impound these vehicles. The state however, provided the opportunity of an Impoundment Hearing to present a basis under the statute for why the car should be retrieved earlier. Mr. Epstein confirmed this was not an item the City had discretion to choose not to do. Q. The number of checkpoints in or around the Canal: A. Mr. Nordhoff referred the City Council to page 4-5 of the Staff Report. He noted Lt. Starnes mentioned the 15 previously conducted which were scattered throughout the County. In the upcoming grant, there would be similar diversity of where those checkpoints occurred. Q. Clamping down on the sale of alcohol to minors: A. Chief Odetto noted a grant from Alcoholic Beverage Control was received to conduct sting operations on suspected businesses selling alcohol to minors. Several different tactics were employed, such as the Shoulder Tap Program where a decoy was used to tap someone to buy alcohol for them, the Decoy Program, which would send a decoy into the establishment to attempt to purchase alcohol, in addition to a Juvenile Patrol that targeted areas where youngsters partied. Chief Odetto noted that the last sting was at the County Fair on July 4th, 2008. Q. Involving the Marin Institute: A. Mr. Nordhoff stated staff would be glad to contact the Marin Institute to find out what they do and work with them on some of these issues. Mayor Boro explained that the Marin Institute was one of two organizations permanently funded by the Marin Community Foundation, the other being the Research Center in Novato. They had a tremendous record both locally and nationally working on alcohol prevention. Mayor Boro offered to get contact names and attend meetings with Chief Odetto in order to get the community together to discuss the issue of drinking and its associated problems. Norman Carlin, Sausalito, reported that having conducted a Google search of checkpoints he came up with a report by a county organization, not unlike the one given by San Rafael. The report stated that the moneys they received came from the Department of Homeland Security. Mr. Carlin inquired whether anyone had knowledge as to the origin of money for grants coming from the Department of Homeland Security. Responding, Chief Odetto stated that the money originated from the National Highway Traffic Safety Administration, which was then funneled down to the Office of Traffic Safety. Mr. Nordhoff added that he was unaware of any moneys coming through Homeland Security to fund these programs. Councilmember Miller stated he appreciated the community's concern and their coalescing around the issue to raise some fine points. He believed the checkpoints were but one part of the approach to effectively address the problems of drinking and driving. In reading the court's decisions, Councilmember Miller agreed with local and County departments and the District Attorney on the value of the grants. He believed the suggestion to meet with SRCC Minutes (Regular) 09/02/2008 Page 9 SRCC Minutes (Regular) 09/02/2008 Page 10 community groups and Marin Institute would be effective in finding ways to work with the community in a respectful and understanding way. He was satisfied with both grants going forward and saw them as a drive to work with the community, but at the same time providing an effective tool to address the problem. Councilmember Connolly thanked the community for participating in this evening's hearing. For the City Council to do its job he felt it critical to hear all points of view from all corners of San Rafael. There was no question in this society about the importance of the Fourth Amendment right against unreasonable searches and seizures. At the same time, those rights were balanced against the right of the public to be safe. No one had disputed that driving under the influence was a huge problem in society, which unfortunately, affected those in San Rafael, and he saw the two grants as just one tool to combat the problem. Councilmember Connolly stated that the public education component struck him. While there was an enforcement piece, there also was community outreach, public education, and publicity designed pieces designed to avoid DUIs from happening before someone even got to a checkpoint. With regard to the issue of drivers' licenses, Councilmember Connolly stated that those able to obtain licenses was ultimately a state issue. He was convinced that by doing these checkpoints and asking for licenses in a manner that was incidental to checking for sobriety - in a brief fashion - complied with applicable law. As a matter of policy, he was satisfied in how the program was being implemented, and was prepared to support the two grants. He appreciated Chief Odetto's offer to work with the community and offered the Council's time as well. Councilmember Heller stated that after reading the staff report and letter from the lawyer, she was concerned whether San Rafael had the legal right to check for drivers' licenses. She was now quite satisfied that the City had that right, and in fact, were told to do so. With regard to the problem of unlicensed drivers, she was assured all County areas were being checked, not just some parts, and thought it a matter of public good. Expressing displeasure at San Rafael's traffic safety statistics and poor record, Councilmember Heller stated there was a need to raise this through education. In going forward with these grants, she would like to work with the community as she believed it started with schoolchildren. Indicating she would vote for the grants, she believed the public was firmly in favor of continuing the grants, conducting a license check and educating the community on DUI and drinking. Expressing his discomfort with the whole process of drivers' license checks, and why he would vote for the grants, Councilmember Brockbank stated that attorneys and police officers all quickly learned that police officers could not randomly stop people to ask for their identification unless they had probable cause, as it was a blatant violation of the Fourth Amendment - unreasonable search and seizure. Ingersoll carved out a very clear and explicit exception for sobriety checkpoints on the grounds that the problem of drunk driving was so great, and the burden on the individual of having a brief stop was so minor that that was an exception to the Fourth Amendment. To him, asking for a drivers' license was a huge additional burden for such a minor additional gain. Councilmember Brockbank stated that asking someone for their identity was much different from asking "have you been drinking?" and looking for bloodshot or glassy eyes, etc., as he believed it impinged on privacy, and he was unsure that it made it better because someone was being stopped at a sobriety checkpoint. Indicating he was also uncomfortable with the process, Councilmember Brockbank stated that usually the City when anticipating a sensitive issue gave plenty of advance notice to allow for questions. He was unsure whether developing community consensus, as Mr. Rubinson suggested, would help or not. He favored more education for people and requested that in the future information be provided in advance to allow time for public questions and the opportunity to address them. He noted, however, that this item had been agendized as a Consent Calendar item for at least seven years with no objections. Indicating he would vote in favor of the grants, Councilmember Brockbank noted that someone mentioned checkpoints were tearing the community apart; however, he believed that to not approve them would tear the community apart. He understood they had been working in good faith for seven years and that the City was moving in the right direction with increased saturation patrols, because they were better and less intrusive. Commenting on Mr. Geraghty's remarks that checkpoints did not do any good, Councilmember Brockbank stated that while the numbers were a little dismaying and imbalanced, with four DUIs and 40 impounded cars, nevertheless, the four DUIs were very important and to not do so would cause harm to the community, which was a risk he was not willing to take. With regard to the 40 car impoundments, he wished they did not have to be impounded; however, the law stated that they had to be impounded, and likewise with drivers' licenses. Councilmember Brockbank stated that in the future he would like to see statistics on ways other than checkpoints, in which the City might get drunk drivers off the road. He would also like to see the community, who felt so strongly that this was such a horrible invasion of privacy, find out whether there was any way to change the opinions of those at state level and whether the OTS would uncouple license checks from sobriety checkpoints. He suggested SRCC Minutes (Regular) 09/02/2008 Page 10 SRCC Minutes (Regular) 09/02/2008 Page 11 discussing this with California State Assemblyman Jared Huffman and California State Assemblyman Mark Leno. Councilmember Brockbank stated that while all wanted to get drunk drivers off the road, he would like not to have to impose on people's privacy; however, he thought it more destructive and divisive to say no to the grant. Mayor Boro reported that on the night of August 22"d, he and Councilmember Miller observed the Andersen Drive checkpoint. He explained that as drivers came off the freeway, either going north or south, they proceeded onto Bellam Boulevard, whereas those turning left to the Canal were not impacted by the checkpoint. Those turning right off Bellam Boulevard could see signs in both English and Spanish indicating a checkpoint was ahead; lanes to bypass the checkpoint were available and he witnessed people doing this and the police not stopping them. Coming down Andersen Drive to that location, signs were posted before reaching the checkpoint. Stating it was not a trap Mayor Boro commented that he resented very much the comments made in Mr. Nardell's letter with respect to the City being fronts for ICE (Immigration and Customs Enforcement). The City had a very definitive policy with regard to the role of the Police Department in dealing with people who were in the country illegally, and that was not to enforce immigration laws, which was left to ICE. However, the City would enforce public safety and the laws of the state. Mayor Boro stated he felt an undercurrent in the discussion that the City should look the other way, not impound cars, and let people drive without a license. He commented that should a San Rafael police officer be in such a situation, whether at a DUI checkpoint or other type of stop, to do this would be in violation of the law, and he would not ever encourage police officers to violate the law of the State of California. Mayor Boro stated he was all for education and would certainly work with the Marin Institute, with Tom Wilson and his group and Consilio. He thought the community needed to be informed that it was illegal to drive a car without a license. He personally believed that licenses should be issued, mainly because a person had to pass a test to get one. Councilmember Brockbank had indicated to him he thought a bill was passed recently to provide licenses to illegal immigrants; however, in the meantime, the City had to work with the law as it was. Mayor Boro noted the basic issue for him was the statistics in the staff report. From surveys carried out in the City, public safety on streets and roads were big issues in the community, and these grants would afford the opportunity to provide more protection for people using not only DI -IIs, but saturation patrols, etc., to ensure streets became safer. He noted that two weeks ago it was agreed to go forward with red light cameras in certain intersections in downtown, again for public safety. Mayor Boro stated that the main role of a city was to provide public safety to a community and these grants would allow this to happen, and to characterize this as targeting a certain group in the community offended him. He believed that to be a disservice to the community and to this City Council, which had been very upfront and worked hard with community members new to the country. There was an obligation to make sure they understood that if they did something to potentially break the law, they were aware of it, and that was part of the education that needed to be done going forward. Mayor Boro thanked all for being present, noting the subject was a difficult one which engendered strong feelings. He thanked the representatives of the different police departments in attendance. He was aware they valued this effort in their communities and San Rafael was very happy to host this effort and continue it. a) Councilmember Miller moved and Councilmember Connolly seconded, to adopt the Resolution. RESOLUTION NO. 12571 — RESOLUTION APPROVING USE OF THE STATE OF CALIFORNIA OFFICE OF TRAFFIC SAFETY GRANT FUNDS IN THE AMOUNT OF $577,154.00 FOR THE "AVOID THE MARIN 13 DUI CAMPAIGN — MARIN COUNTY" ENFORCEMENT PROGRAM FROM OCTOBER 1, 2008 THROUGH JANUARY 31, 2012 AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None b) Councilmember Heller moved and Councilmember Miller seconded, to adopt the Resolution. RESOLUTION NO. 12572 - RESOLUTION APPROVING USE OF STATE OF CALIFORNIA OFFICE OF TRAFFIC SAFETY GRANT FUNDS IN THE AMOUNT OF $94,189 FOR THE "DUI ENFORCEMENT AND AWARENESS PROGRAM" FROM OCTOBER 1, 2008 THROUGH SEPTEMBER 30, 2009 AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None SRCC Minutes (Regular) 09/02/2008 Page 11 SRCC Minutes (Regular) 09/02/2008 Page 12 17. CONSIDERATION OF CITY MANAGER'S COMPENSATION AND RECEIPT OF RECOMMENDATION FROM SUBCOMMITTEE CONCERNING SAME (CA) — FILE 9-3-11 Councilmember Connolly reported that the sub -committee comprised of Mayor Boro and himself had had an opportunity to evaluate Mr. Nordhoff's performance as City Manager and proposed amending his Employment Agreement as follows: 1) An annual salary increase of 3% of base pay, retroactive to July 1, 2008 2) An amendment to Mr. Nordhoff's contract to begin a new five-year agreement commencing July 1, 2008. Councilmember Connolly moved and Councilmember Miller seconded to approve the recommendation On behalf of the City Council, Mayor Boro stated they were very pleased with Mr. Nordhoff's performance and thanking him for serving as City Manager they looked forward to continuing to work with him. Mr. Nordhoff stated that it had been a pleasure working with the City Council and together accomplishing many things over the past year, noting a very aggressive work plan for the next year. Commenting that he did not get things done single-handedly, Mr. Nordhoff stated that the City's 400 -plus employees really made things happen in the community and he would like them to take an equal share of the credit. AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None For the record, Mayor Boro reported this was a motion and a resolution would be placed on the Consent Calendar at the meeting of September 15, 2008, reflecting the two items discussed. COUNCILMEMBER REPORTS: (including AB 1234 Reports on Meetinqs and Conferences Attended at Citv Expense) 18. California Civic Leadership Institute Program — File 9-1 Councilmember Connolly reported on having participated in the California Civic Leadership Institute Program, through the League of California Cities, from August 20-22, 2008 at Big Creek, California. He explained he was one of 22 councilmembers selected statewide to participate to gain better knowledge of state level public policy issues and how they impacted what was being done at the local level. He noted the focus of the program was on energy solutions with a heavy concentration on renewable energy and sustainability issues. Councilmember Connolly noted the highlight was perhaps when he took a helicopter tour of the Sierra back country to actually view some hydro facilities in the surrounding forest. The program culminates in an all -day series of meetings and events in Sacramento on Friday, September 5, 2008. There being no further business, Mayor Boro adjourned the City Council meeting at 9:55 p.m. ESTHER C. BEIRNE, City Clerk APPROVED THIS DAY OF 2008 MAYOR OF THE CITY OF SAN RAFAEL SRCC Minutes (Regular) 09/02/2008 Page 12