19 May 2021 Council General Meeting

FIVE HRS 18 MINS!!! Noise Ordinance postponed, after much discussion, to 5/26 or later; red-light camera agreement renewed for 2 years; 2 new full-time managers at Public Works and 1-1/2 full-time positions in Legal; our own City Charter requires an in-house attorney so no contract with the excellent Kylie Finnell as interim replacement for the retiring Lubovich.

Two projects that were fully hashed out at study session were re-hashed for the BKAT cameras: road sealing up in District 7, and new streamlined business license process.

Re the noise ordinance: here, it seems to me, we have a common conflict between people who go by the feeling and those who go by the book. The police, Mayor, and others don’t want to over-legislate & eliminate room for individual officer discretion — as Chief Burchett said, 99% of people just turn the noise down. The majority of Council, responding it seems to community input, wants to make sure that trained readers of decibel meters are used to resolve noise complaints fairly & consistently.

Simpson and Younger wanted to defer hiring until budget season, meaning new hires would come on board in January 2022 earliest. Majority responded to moving employee presentations of system-wide overwork and exhaustion & approved the new hires. Mike Simpson again attempted to cap City pay at Bremerton’s median income: $55,661 in 2019. This motion received no support.

1. Call to order 5:30pm

2. MAYOR’S REPORT

KPHD data. He says we’re on our way. But City Hall maintaining mask requirements for the time being.

3. PUBLIC RECOGNITION

I mention that Kitsap County is still at a very high risk for Covid-19, please keep wearing your masks. Ki’aha Long echoes my ask and thanks Council and Mayor.

4. CONSENT AGENDA

A. Claims & Check Register

B. Minutes of Meeting – May 5, 2021

C. Minutes of Study Session – May 12, 2021

D. Local Agency Supplemental Agreement No. 2 with Skillings, Inc. for the Washington & 11th Roundabout Project

E. Professional Services Agreement with Barker Creek Consulting, LLC for Construction Management Services for Oyster Bay Beach Sewer Upgrades

Approved unanimously.

5. GENERAL BUSINESS

A. Ordinance No. 5421 amending the Bremerton Municipal Code relating to General Business Licenses to support transition to WA State Business License Services online applications

Andrea Spencer presents, Same as Study Session presentation. Daugs asks questions to clarify the process for the public: What’s the benefit to our local businesses? Spencer: When they sign up for state license, they can add the Bremerton license. Letters sent to all local businesses (4200), informing them of the July 1st change. No additional cost, state collects and remits back to City. Goodnow asks about costs, Spencer says We’ll actually save $25-$35K per year by transfering from File Local. Younger asks about landlord licenses, which will be filed directly with the City, as landlords don’t need UBI licenses. Carried unanimously.

B. Public Works Agreement with Doolittle Construction, Inc. for the 2021 City Road Preservation Project

Archer-Parsons presents, same as Study Session presentation (5:46pm). Chip seal, slurry seal, and micro seal, all in District 7, to be done June-August 2020. Extends life of roadway by at least 12 years. I ask for database that contains road categories, e.g., Poor, Fair, etc. Younger refutes the previous implication that all this work is in District 7. Simpson says infrastructure is one of the three things government should be doing. He talks about the work to be done between Naval and 19th, which makes no sense as they are perpendicular to each other. Goodnow impressed that City is using data to determine plan of work. Motion carries unanimously.

C. Ordinance No. 5420 to repeal and replace Chapter 6.32 of the Bremerton Municipal Code entitled “Noise Levels”

Presented by Chief Burchett and Mychael Raya (Counsel’s office). He repeats his Study Session presentation. Ms Swisher says noise can’t disrupt people sleeping and families with children. Without this ordinance, we open ourselves to garage bands etc. Walthall: How will this be enforced on traffic? Burchett: “Vehicle noise always ranks up there near the top” so that’s why modified mufflers are included in this Noise Ordinance. The problem is catching them when they’re revving it up [they could just sit at 11th and Kitsap Way!). I ask if this ordinance means that my neighbor playing a recorder on a winter’s night with the windows closed, over 100 feet away. Chief Burchett says yes, that would technically be a violation. Discussion – Sullivan: A good thing. Well-researched. People have to sleep. Burchett explains that training will cost $10K [hmmmm, not what my research shows] so what they’ll do is play it by ear, get a contractor who’s already trained to measure whenever there are repeated complaints. Goodnow talks about how noise travels, and how what you really hear is the thump, i.e., the bass. He loves live music, we’re trying to invest in downtown — we’re naming a whole neighborhood after Quincy Jones and this ordinance comes down hard on live music! We’ll only know if we’ve gotten it right if it works, and is reasonable. He comes out strong for zoning and codes that are super-friendly to business without any cost to residents. Daugs: Currently, this is complaint-driven? Burchett says, Yes.. So, an individual can call at any hour and officers deal with it. Yes. Do we have a decibel meter? No. Do we have a trained decibel meter reader? No. So, we’re just taking someone’s word that this is beyond acceptable decibel levels? Burchett describes the process of warnings escalating to reports and so rising to a summons. Daugs says, I can be a disgruntled neighbor, call 20 times and you guys will come 20 times. Yes. She’s having a hard time moving forward on an ordinance that evaluates noise levels by any specific officer’s hearing. Burchett: If we don’t hear anything, there’s nothing happening. Daugs: She references 2 places next door to each other; one has been around 1978 (Brother Don’s). Did we get this volume of complaints before 2019 (the new data is only 2019-2021). If BPD comes around 20 times and there’s no excessive noise, then complaints 21 and 22 you still come around? For us to just make a judgment call based on our own hearing, without a decibel meter or someone trained to use it, I have a hard time moving forward. BPD needs tools and doesn’t have them. This ordinance is not moving in the direction we want to see. We can’t put a noise policy in place when we don’t even have a decibel meter or anyone trained to read it. “A noise violation is the lowest priority in our system” says Burchett. We’d have to sit in front of a noise-producing location for an hour to establish noise levels. He talks again about the standard of admissibility for going to court. Again states that 99% of noise complaints are resolved by an officer appearing. Daugs: I just feel like we need to do more work on this, want to help you, give you the right tools, but we need policy we can enforce, and we can’t enforce this one. Younger: 2 sections, one requires decibel meter, public noise disturbances don’t require one, if it’s audible between 10pm and 7am, then it’s a violation. Burchett says yes, that’s all correct. Younger: You (Burchett) have said that officers can use discretion, but that brings up selective enforcement. He has a problem with “audible” and “100 feet”. Doesn’t want to revisit this! Burchett: If it’s repeated complaints, we’ll bring in a contractor with decibel meter. Younger: So we have decibel levels for different zones in the first section? Raya: That was the intent. Younger: Doesn’t know how realistic these decibel levels are. Especially since these are long-established businesses that were here before the complaining residents moved in. You may drive them out of business — is that what you want? On the other hand, kids have to sleep, so we need a compromise here & he doesn’t see one. Maybe relax hours for weekend nights. “Like Councilmember Daugs, I’m not comfortable with this.” Simpson: Glad that the Chief explained the Fry standard of objective v. subjective. He explains what the scientific method is. He says the people are moral and just, that’s the only way that ordinances work. We protect offensive speech, and the First Amendment does not give us the right to be effective. It doesn’t protect us from being offended. We don’t have the equipment or the training to achieve the objective standard.There is no implied consent if the property owner has no idea this ordinance has gone into effect. There are different areas in the city that this noise ordinance treats differently. And that means that we are not treating everyone equally inside our city. That is a 14th amendment violation. The hundred foot standard, that doesn’t work. The audible definition is still way too subjective. So I think we really need to think about changing this. Wheat: Recaps how previous noise ordinance was declared unconstitutional and thus invalidated. Joins Councilors Daugs, Younger, and Simpson in their discomfort with supporting the proposed ordinance as now written. Goes back to Daugs’s analogy of how vehicle speed is measured. Would BPD measure speed subjectively? Burchett: No, we have measurement tools. Wheat: Asks Burchett to confirm that no measurement tool is needed to measure noise. Burchett is canny and honest — he says, that’s a public policy decision. He repeats several times that there’s no way to capture muffler noise. [Again! 11th & Kitsap Way! Shipyard gets out at 4:02pm! Not tough to put a meter there!] Mayor Wheeler asks to speak: the word “audible” has held up in many court cases. You seem to be on a path to create the second comprehensive in-house noise meter program in our state. Wheat asks about “audible”, Raya answers that it’s never been challenged. Wheat says none of us want to spend taxpayer money to go to court again over our noise ordinance. Raya: Not much case law on noise. He’d have to research. Wheat: People want to feel like they’re being treated fairly and consistently. Also, the community wants modified mufflers to stop, stop, stop.

Second round: Daugs: Looks at penalties for multiple infractions — we might be talking about shutting down three businesses, based on 2019-2021 data alone. That would be doing a disservice to our community and to our businesses. I firmly believe that we need to take another look at this, as we’ve just now alienated everybody that’s on this particular report. Three businesses and a church would be violations per the new ordinance. Burchett: We’ve never had three within 180 days, so it’s never risen to misdemeanor. Mayor says good community policing solves the residential / commercial mix that makes a city vibrant — don’t over-legislate. Andrea Spencer tries to answer Goodnow’s question about business licenses (he’s going for the phrase “cabaret license” or the WA equivalent thereof). She doesn’t know. Goodnow doesn’t think decibel meters are the right solution because there’s so much ambient noise. Mentions that a man’s voice can be heard 600 feet away. Can we put a “reasonable person” standard in this? Raya: Difficult. The court case that prompts this discussion specifically dissed the reasonable person standard. Goodnow talks about how decibel scale works and asks, do we have any noise ordinance in place right now? Raya says judge only invalidated the Public Disturbance section as unconstitutional. Goodnow isn’t seeing much we can do, or what we’re asking for. Younger: Again, the problem is with this audible definition, which has not yet been challenged. If we pass this ordinance, it will be challenged. References DOE’s jurisdiction over noise pollution, which uses the phrase “loud noise” — how loud is too loud? DOE gives decibel readings and uses decibel meters. Let’s model our ordinance on DOE’s, use the phrase loud noise, get the decibel meters. Since we’d be the only ones with meters in Kitsap, when some other city comes up with this problem, we can bill them for our services. Gorman: We need a noise ordinance, but I love live music. He too did a lot of research on other municipalities & this one’s in line with theirs. He wants to get something going, not let the perfect be the enemy of the good. Burchett says he’d never had problem with the noise ordinance in 25 years because most people turned it down. Gorman is split. He wants to postpone and re-study. Wheat: Longer distance (e.g., 500 ft) and stronger language (e.g., loud noise vs. audible). Sullivan demurs. Maybe 250 feet? And she supports Younger’s suggestion that we follow DOE’s guidelines. And relaxing the hours on weekend nights. [Was there some pattern of noise complaints? Was it confined to weekend nights?] [My comment: Everyone tacitly accepting Chief Burchett’s estimate of training and usage costs & times ($10K, one hour each), but decibel meters can be pretty cheap and training can be 2 hours. We could buy a bunch of them and train a bunch of employees to use them.] Simpson: We can change the way we do business licenses for live music. And we can exempt live music from this ordinance. Because we absolutely don’t want to shut churches down. We can work on this later, we don’t have to work on this today. Obvious that we’re going to have to bring this back up at a study session. I can tell you where I stand and as it stands now, it’s not going to work. Younger proposes Gorman bring it to a vote and if it doesn’t pass, have a study session on it. Vote: Goodnow, Sullivan – Yes. Simpson, Younger, Daugs, Wheat, Gorman – No. This will be a study session on 5/26 or the next study session thereafter.

D. Renewal of Agreement with Redflex Traffic Systems, Inc. for Photo Red Light Enforcement Program

This was postponed from 5/5 to tonight. 5-minute break beforehand, 7:49p-7:55p.

Daugs: We should’ve done an RFP (a reversal of her previous position, that since we own the cameras, why get other bids. Wheat: Agrees that an RFP should’ve been done. Yes, we’re making $$ from these cameras, but is it improving public safety? The data we were given on the effectiveness of these cameras on improving public safety was from Alberta, Canada, in 2015. She recalls that in study session, Lt Mike Davis said he could not confidently assert that these cameras reduces the number of collisions, and hypothesizes that drivers change their behavior by speeding through yellow lights and hitting the brakes hard when the light turns red, which would explain the increased number of rear-end collisions. Lt Davis thinks total accidents may stay the same, but his dashboard view is that the severity of the collisions is substantially reduced, e.g., T-bone accidents are much rarer now. Shane Weber defends the data, couldn’t get info from WSDOT in the time allowed. He steps up to say that T-bone accidents are exactly what they wanted to prevent when they instituted this in the first place. Simpson: Not a big fan of red-light cameras. He explains what a ticket is for an infraction of the Bremerton Municipal Code. He has special Bremerton data. He gives us police jargon of NOIs, 2K issued in total by BPD per year. 10K NOIs for red-light cameras. These numbers have remained constant. So we’re not reducing infractions, we’re just reducing T-bones. He explains that the police flashing light tells you right away that you did something wrong, but red-light cameras send you a ticket weeks later. “There are four sandboxes that police work in.” Word salad follows. When your puppy poos in the wrong spot, you don’t wait two weeks to tell your puppy that’s bad. You tell them immediately. And then you end up with poo on the floor. Nobody wants that.” Younger: Asks Lt Davis if this is a valid program. Davis: Yes, we chose the 5 intersections where we had the greatest number of bad accidents, and those injuries have become less severe. Younger: So, who decided not to send this out for RFP? Melinda Monroe explains that 3 months of her time would be spent sending out RFP, plus other depts would have to consult & review, so it is time-extensive. [NB: It’s now 8:21 pm] Younger explains that voting no on this item will be a shock to the Budget, and we’re about to contemplate adding FTEs mid-year, so this is something to consider. Simpson.Wheat, Daugs: No Younger, Sullivan,Goodnow, Gorman. Contract to be renewed, 4-3.

E. Authorize 1 FTE Transportation Project Manager; and 1 FTE Internal Services Manager for the Public Works & Utilities Department

Tom Knuckey gives the powerpoint from the past study sessions (it’s in the packet). Set up the people who’re replacing the retirees with a recipe for success. Big concern about having Forestry under their purview. Gorman opens to public comment. I say I think they should do it, it’s how to preserve institutional memory and institutional excellence. Points are made that we should be taking care of this during Budget season, Simpson: Agrees that this establishes a precedent, and suggests we table until Budget talks in November, and that’s when we take it forward. He moves that we do so, Younger seconds. Younger wants to wait until the budget process, because we haven’t heard from Fire, Police, or Parks. Moving arguments from Wheat and Goodnow. The data and the stories from DPW employees move them deeply. Sullivan not in favor. She doesn’t want to postpone. Nor does Daugs. Gorman thinks it’d be bad to sest this precedent, but last year he heard a lot about “unprecedented”, so people held back because we all thought the economy would tank. He thinks we should vote now. Motion to table goes to vote: Sullivan, no. Daugs, no. Wheat, no. Goodnow, no. Simpson, yes. Younger, yes. Gorman, no. 2 Yes, 5 No. Back to discussion on main motion. Simpson defers to Sullivan, who had her hand up first. Sullivan talks about the regular budget session process. She reads written statement on the motion and wants to hire the FTEs. She’s reluctantly supporting it because she believes in a work//life balance. Simpson: “I am not in support of this. I am sure that people are familiar with the term port and starboard shifts. I’m sure the people understand that normally we have a 40 Hour Work Week, but there are jobs that make a lot less money than the management positions that are being offered up. And they do a port and starboard. And they do this on a pretty consistent basis, they’re here in our community.12 hours a day, 7 days a week, salaried people don’t get overtime. So, when I hear the idea of work life balance, I’ve been there. I’ve been in jobs that work more than that. Right now, we have a lot of people out of work because government put them out of work. We know that extra jobs, inside the government aren’t necessarily essential. They’re desirable, but they’re not essential. If we want to do something for our community, we shouldn’t be hiring a six figure job. We shouldn’t be, you know, hiring one position at a six figure position. If anything if our if our public works department wanted to make this work the right way, they would have created the administrative position of the administrative assistant” [he’s referring to the one position that will be downgraded by $8K a month when it’s filled by a new hire, covered in Study Session 5/12]. He proposes to amend by limiting the salary payband for the position, which he doesn’t specify, to the median income of the residents of the City of Bremerton. [about 9:05pm]. He moves, but there are no seconds. “Let’s get back to business” says Gorman. Goodnow calls for the question. Gorman, who has the authority to call for the question, does so. Younger, Simpson: No. Daugs, Sullivan, Wheat, Goodnow, Gorman: Yes. Motion carries, 5-2.

F. Authorize 1 FTE Legal Assistant for Civil Division; and Increase to 1 FTE Legal Assistant for Prosecution Division in the Legal Department (about 9:15 pm)

Lubovich gives the same powerpoint presentation he gave in Study Session. Gary Hersey repeats that this is a need, not an ask. The Blake Decision alone has created and will create many many more person-hours of work. We’re the only city of our size in our region that doesn’t have a backup for the City Clerk. [Remember that Angela Hoover, City Clerk, kept doing her job on a laptop from her sister’s hospital room.] Lots of discussion, then Motion carries, 5-2.

G. Professional Services Agreement with Kitsap Law Group for Interim City Attorney Legal Services

They’re still rehashing study session arguments at 10:20pm. We are going for a Council meeting record here. Since the City Charter requires the City Attorney to be in-house — not contracted out — Council majority decided they couldn’t approve this Agreement. With sadness, as we really need a City Attorney and the current one, Lubovich, is retiring in a matter of weeks.

6. COUNCIL REPORTS

Simpson: Today is the anniversary of Mt St Helens, and we’ve heard a lot of spewing tonight. I encourage Kylie to apply for the position of City Attorney. This is also Law Enforcement Week, they have a tough job and politics just makes it harder. Wheat: Talks about WA redistricting and links to LWV-WA info meetings on those. Daugs: Doesn’t appreciate the spewing comments, we should appreciate each other. We weren’t spewing, we were having a thoughtful council conversation. Sullivan announces she won’t run for reelection.

7. ADJOURNMENT OF CITY COUNCIL BUSINESS MEETING and so it came to an end at 10:48 pm.

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