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HomeMy Public PortalAbout2021_tcwsmin0426Council Work Session April 26, 2021 Council Chamber, 25 West Market Street, 7:00 p.m. Mayor Kelly Burk presiding. Council Members Present: Ara Bagdasarian, Zach Cummings, Suzanne Fox, Vice Mayor Martinez, Kari Nacy, Neil Steinberg and Mayor Kelly Burk. Council Members Absent: None. Staff Present: Town Manager Kaj Dentler, Town Attorney Christopher Spera, Deputy Town Manager Keith Markel, Director of Human Resources Josh Didawick, Chief of Police Greg Brown, Zoning Administrator Mike Watkins, and Clerk of Council Eileen Boeing. Minutes prepared by Executive Associate Corina Alvarez. AGENDA ITEMS 1. Items for Discussion a. Donation Boxes — Potential Zoning Ordinance Amendments Mr. Watkins informed Council that the Town does not have zoning regulations for donation boxes and stated his availability to facilitate the discussion of the item. Council and staff discussed the item. It was the consensus of the Council to initiate a Zoning Ordinance text amendment for donation boxes at the April 27, 2021, Council Meeting. b. Noise Disclosure — Potential Code and Ordinance Amendments Mr. Watkins explained that the Town's current zoning ordinance has limited disclosure requirements regarding potential adverse impacts. He also provided background information on Loudoun County's general disclosure requirements for development plans. Council and staff discussed the item. It was the consensus of the Council to initiate amendments to the Zoning Ordinance, Town Code, and Design and Construction Standards Manual to address disclosures of potential adverse impacts. c. 2021 General Assembly Legislative Wrap -Up Mr. Markel gave an overview of the outcomes of the Special 2020 General Assembly Session and the 2021 General Assembly. Council and staff discussed the item. d. Collective Bargaining for Local Government Employees Mr. Spera informed Council of the results of the employee survey executed by the Human Resources Department. He also outlined the general 1 iPage Council Work Session April 26, 2021 options for Council's review regarding local government employees' new right to organize for the purposes of collectively bargaining. Council and staff discussed the item. It was the consensus of the Council to move forward with Option 1 (Authorize collective bargaining with certain bargaining units) with a focus on wages and benefits. 2. Additions to Future Council Meetings Vice Mayor Martinez requested a discussion to revisit adding drainage improvements into the Sycolin Cemetery. There was no Council consensus to move forward on this item. Vice Mayor Martinez requested that names of members no longer on boards and commissions be removed from the attendance report. Staff explained that they are listed because at one point during the calendar year they were members. Staff indicated that it would look at color coding for ease of distinction between current and former members. Council Member Cummings requested a Proclamation for Fair Housing Month. It was the consensus of the Council to present this proclamation at a future Council meeting. Mayor Burk asked for a motion to be added to the April 27, 2021, Council Meeting waiving the fee for a Leesburg Police Officer to attend the Young Kings Movement fundraiser on Saturday, May 1, 2021. It was the consensus of the Council to add this motion to the Council agenda. 3. Adjournment On a motion by Vice Mayor Martinez, seconded by Council Member Bagdasarian, the meeting was adjourned at 8:•39 p.m. • Clerk of Council 2021_tcwsmin0426 2 (Page April 26, 2021 — Town Council Work Session (Note: This is a transcript prepared by a Town contractor based on the video of the meeting. It may not be entirely accurate. For greater accuracy, we encourage you to review the video of the meeting that is on the Town's Web site — www.Ieesburgva.gov or refer to the approved Council meeting minutes. Council meeting videos are retained for three calendar years after a meeting per Library of Virginia Records Retention guidelines.) Mayor Kelly Burk: Let me call to order tonight's Town Council work session, April 26th, 2021. There is no remote participation motion needed tonight. Our first item for discussion is Donation Boxes. Michael Watkins: Madam Mayor, members of Council, good evening. Mike Watkins, Zoning Administrator, here to help your discussion regarding donation boxes. I was instructed to prepare a memo, and this is in regard to the donation boxes that we see scattered throughout town. We do not currently have any zoning regulations for these entities. There was a recent case that was- there was a couple located in a prominent location, whereby we received some complaints. The item this evening is for you all to discuss donation boxes, and I'm here to facilitate that conversation. Mayor Burk: You don't have a presentation. You have the letter. I was notified by Walgreens that it just showed up in their parking lot. They would like it gone, and they've made phone calls and it hasn't gone anywhere. It's a continuing problem. It's not just one location. It's multiple different locations. Does anybody have any comments or questions concerning this issue of donation boxes simply showing up at locations without the permission of the landowner? Mr. Steinberg, did you have something? Council Member Neil Steinberg: Sure, yes. Well, first of all, if the property owner calls and says, "These things just showed up on our property," who is responsible then for moving it? Michael Watkins: Alternately, it's the property owner's responsibility. Council Member Steinberg: We wouldn't just go in and take it away. They're not looking for us to do it. Did they call and complain to us? Michael Watkins: It was neighbors who felt that it was a nuisance and a visual distraction. Council Member Steinberg: I'm just wondering why they didn't immediately have them removed. Of course, that would be some expense to them. Have we ever had any response whatsoever from-- I know this was precipitated by the one that sprang up at the corner of Market and Catoctin Circle. Were we ever contacted by the organization that placed the box in any way? Michael Watkins: No, sir. Council Member Steinberg: What happened to it? What happened to the box? Michael Watkins: They were removed. Council Member Steinberg: By the property owner. Interesting. Well -- Michael Watkins: We didn't? I'm sorry, I stand corrected. Council Member Steinberg: What did we do with it? Kaj Dentler: We took them to the Town shop, and contacted the owners of the boxes, who then came and picked them up? Council Member Steinberg: They did. When we confiscated it, then they came and picked it up. Kaj Dentler: Correct. Page 11 April 26, 2021 Council Member Steinberg: As opposed to clearing it with the property owner first. Well, I think this simply indicates that we absolutely need something in place for future situations, and something that also describes when and where that they are appropriate. Okay, thanks. Mayor Burk: Mr. Martinez? Vice Mayor Fernando "Marty" Martinez: In your letter, I had to take a second look, because you've started your paragraph, "Due to the attractive nuisance." Do you mean unattractive nuisance? Michael Watkins: Yes, attractive nuisance, sir. You see you want to do something about it. Meaning if there's a box there, you want to participate in the program, and in some instances people lawfully or unlawfully make donations in excess of what the box may provide for. In that instance, they become attractive nuisance. Vice Mayor Martinez: Nuisance that attract controversy is what it is. The other one was-- You're asking us that it might be in our best interest to create a regulation that addresses this and use those eight items that you listed as some template of what we should be doing. The other question was the property owner are the people that move the boxes. In other words, if one of those donation boxes showed up on my property and I would have to have it moved, where would I move it to? Michael Watkins: Where would you move it to? Today, would be off site. Right now, the Town does not have a zoning regulation regarding its size, location, color. Vice Mayor Martinez: I could move it to another shopping center — Michael Watkins: You could. Vice Mayor Martinez: -- and just drop it. Michael Watkins: You could. Vice Mayor Martinez: That's something as we do this, we need to take care of. Are there any penalties or fines or fiscal responsibility for the people who put these boxes down and then ended up having to have them moved? Michael Watkins: Most enforcement action is against the property owner and not against the entity. In that regard, fines would be assessed upon the property owner. That's how most enforcement is done. Vice Mayor Martinez: What if the property owner could prove he had no knowledge? Michael Watkins: Then you could build an ordinance that says that they can be confiscated. The Town can come in and confiscate them. You can build an ordinance that says that. Vice Mayor Martinez: Whatever dollars it costs us to confiscate them, they should be reimbursable by the person who has the box. Michael Watkins: The ordinance can be written as such. Yes. Vice Mayor Martinez: Thank you. I appreciate it. Thank you for bringing it to our attention. Mayor Burk: Mr. Cummings? Council Member Zach Cummings: Thank you. Is there any sense of-- Are the organizations that are placing these boxes local organizations or from out of the area? Michael Watkins: There's a diversity. Some are within the Northern Virginia area. Some are owned by entities outside of the Commonwealth. Again, it's wide open. Page 21 April 26, 2021 Council Member Cummings: Just wanted to make sure as we're crafting the legislation, that we try to keep in mind the local organizations who could have- this could affect them, that are trying to do this properly, rather than just coming in the middle of the night and dropping a donation box and running back to wherever they came from. Michael Watkins: Absolutely. Mayor Burk: Years ago we had the director from the Blue Ridge Hospice come and speak and ask us to look at this issue. He said that none of the donations go locally at all. He was irate, because one of them showed up right outside the Blue Ridge Hospice location. People were dropping it off there instead of taking it to the local group. This is not a new issue. This is something that's been on the radar for a little while. I just think we're being taken advantage of by a particular group now that's very aggressive and just putting them anyplace. Is there anybody else? Ms. Nacy? Council Member Kari Nacy: Yes. I just had a quick question. In your executive summary it says, "Donation boxes are not permitted uses right now." Does that mean we shouldn't technically have any at all in the Town? Michael Watkins: We've got the one complaint, and the way we've administered our enforcement activities is it's not a specialty, we're only going to go after this one. We've not instructed staff to go out and canvas all the shopping centers to identify all of them. Michael Watkins Nacy: By doing a text amendment, we would be saying that we're going to start allowing them, but with certain criteria? Michael Watkins: Criteria. Yes. Council Member Nacy: Okay. Thank you. Mayor Burk: Do you need from us- four people to indicate that they would like this to move forward? Michael Watkins: To initiate it. Yes, ma'am. Mayor Burk: Okay. Do we have four people that would like to initiate this? Mr. — everybody. Everybody's on board. Mr. Martinez, were you on board? You didn't raise your hand. You didn't raise your hand. Are you on board of initiating this ordinance? Okay. Yes, it's everybody. Kaj Dentler: Madam Mayor, we'll add it to tomorrow night's agenda for you to officially initiate. Mayor Burk: Thank you. Alright, thank you very much. Michael Watkins: Welcome. Mayor Burk: The next one is Noise Disclosure. Michael Watkins: To be quite honest, I struggled a little bit with this one in preparing the memo. Essentially again today, the zoning ordinance has very limited disclosure requirements. The principal one is the Airport Overlay District. That obviously, is to account for the flight patterns of the airport. You may go and visit a home while you're doing your due diligence to purchase it and may not experience the overhead flights. We've identified an Overlay District, so that becomes a requirement. In this particular instance, I did note that Loudoun County does have in their zoning ordinance a general disclosure requirement for development plans. They're supposed to be present onsite and as you go through the purchasing process, you actually sign an affidavit or notice that says you've observed or been given the opportunity to look at those development plans. Outside of that, I did do some limited research within the Commonwealth and did not find a whole lot of disclosure requirements for general noise purposes. Again, here to answer any questions that you may have. Page 31 April 26, 2021 Mayor Burk: I believe Ms. Fox she brought this forward. Do you have any questions? Council Member Suzanne Fox: I did. Thank you. We've had some issues since the Downtown has been- the infill is building up now. We've had a few incidences, and I believe we'll have more just because we have a lot of liveliness going on in the Downtown. Now we have a lot of infill with people moving into the Downtown. When we vetted Church and Market we asked them a lot about the noise and things like this. As a Council, we're very, very, very concerned about that. We are getting other complaints now. What I've heard from folks is, "I had no idea." Even if it was disclosed that there was a brewery next door or something like that, there was no disclosure of what that constituted. There's some people who don't drink, so how would they know? That kind of thing. I just think it's fair to residents who are going to move into Town, especially when they're not used to being in Town, to know what's going on in their surroundings. I would advocate for a change in the zoning ordinance to ask for a similar disclosure with the plan. Not just, "Hey, we're next door,", but what are the usual issues with what's next door. Mayor Burk: Mr. Bagdasarian? Council Member Ara Bagdasarian: I have a question for Council Member Cummings. Is there any code of conduct in the code for the realtors to disclose information about the location of your residence and potential noise issues? I know that there's very strong sense of code of conduct in that profession. Mayor Burk: Mr. Cummings, Mr. Bagdasarian is asking if there was any code of ethics that would require that you disclose that noise information. Council Member Cummings: I'm going to make my broker very happy by saying-- I want to point out I'm not a lawyer. Under Virginia law, my understanding is that we're only bound by the Residential Property Disclosure Act. We have to follow that very closely. I would defer to the Town Attorney on what can be forced to be- how you can force a seller or a landlord. What they can disclose is all under that property act. Christopher Spera: The disclosure act focuses on the property being conveyed and not the surrounding environments. When we dealt with this issue back in my Alexandria days, we typically addressed it in the context of development approvals. Mayor Burk: Development what? Christopher Spera: Development approvals. If a project were being developed, let's say a multi -family project was being developed next to some point source, whether it be noise or odor or whatever, as a development condition we would- and whether it was sale or rental. If it was a sale, we'd asked them to put it in the condominium documents. If it was a rental, we'd ask them to put it in the lease. To make it a development condition, you had to just disclose and have the tenant and -or condo owner acknowledge, "Yes, I'm moving next door to a music venue," or, "I'm moving next door to," a real example we had was an asphalt plant. When people complained about the odors we could say, "Well, wasn't that in your condominium documents or wasn't that in your lease?" Again, that was in the context of new development. I am unfamiliar, as I think Mr. Watkins is, with something that's applied across the board as part of a zoning ordinance as opposed to a development condition for a new project. Mayor Burk: Alright. Mr. -- Michael Watkins: [Unintelligible] in the Subdivision Land Development Regulations. Any site plan that comes in for review, the adjacent property owners are notified of that plan submission. It's background information as well. Page 41 April 26, 2021 Mayor Burk: Maybe we could tighten it up a little more and make it stronger that the developer needs to share with whoever's buying the property that there may be some noise issues or something of that nature. Mr. Steinberg? Are you finished Mr.? Council Member Steinberg: Well, Mr. Bagdasarian was actually -- Council Member Bagdasarian: I still had a follow up. Mayor Burk: Sorry. Council Member Bagdasarian: Not from Council Member Cummings. No. There's certain line as a home buyer, there's due diligence that you need to pursue to consider the environment. Are you looking for a quiet residential area? Are you looking for something that's a little bit more vibrant, and the aspects that go along with that. I used to live near the airport in Evergreen Meadows, and that was there. There's nothing-- We knew that moving in. There's just that line of personal accountability when it comes to determining where you're going to live and the implications by your environment that is disclosed. Whether it's an official disclosure or something that is determined by your own due diligence. Mayor Burk: Mr. Steinberg? Mr. Cummings, are you finished? Council Member Cummings: One more comment, and then [unintelligible]. Mayor Burk: Go ahead, Mr. Cummings then. Council Member Cummings: While I understand that the caveat emptor is the rule of the land for purchasing and renting, is there an opportunity in discussions with - especially developers as they develop, whether it's a first sale or for rent - having even a just generic disclosure of, "You're buying your home or renting in a business district. There may be noises or sounds that happen during business hours that are out of our control." Is that something that you think we could talk to a developer about including that in? I believe that was really Council Member Fox's push for us talking about this, is asking for that disclosure to the developers. Michael Watkins: Absolutely. During the legislative process with [unintelligible] special exception for a rezoning application, staff is cognizant of making sure that we address all compatibility matters. Noise being one of them, general design being another, just to name a couple. Transportation impacts, whatnot. In regards to zoning requirements themselves, again I'm unaware absent an overlay district that identifies a point source, where this is generally applied. Council Member Cummings: Would the Arts and Culture District be -- Could we add that as an overlay district as well? Michael Watkins: We don't have it as a zoning district. It is identified as a district in Town, but not as a specific zoning district. Could you add something in the identification of that? I -- Christopher Spera: It would be a text amendment to the zoning ordinance. It would incorporate it by reference it -- that district, and then how you word it I think would be the trick, because not everything within the Arts and Cultural District generates noise. Council Member Cummings: Sure. Christopher Spera: Some is more passive and might be regulation without an activity that needs to be regulated in certain locations and certainly we're thinking about, but to go back to your earlier question, that was the example I was giving from the city. Is that when it's a new project, then I think Mr. Watkins agrees, is that you're sure. That's a time when you can make that a condition of the project. You can add it to a lease, you can add it to condo documents. Make it part of the disclosures that will survive resale, that will survive a second, third, fourth tenant, because it's in the lease. Page 51 April 26, 2021 Council Member Cummings: That would be my hope, is that we could -- whatever we come up with, we can make it to where it's even just a quick disclosure. We feel like we can go back to the citizens who are approaching us about noise and say, "Look, we're trying to do our best in a tough circumstance." Christopher Spera: I think that makes it a lot of sense in the context of a new project. The challenge is how do you do it with an existing project? I'm not sure we've got a great answer at this point. Mayor Burk: Mr. Steinberg? Council Member Steinberg: Well, thank you. I'm entirely sympathetic with the underlying idea of this, but it's the definitions that we would have to come up with, I think that are going to be a challenge. For example, we are aware that we have an airport. That's fairly obvious. Of course, defining an overlay or a noise area/zone that applies to the airport would make perfect sense. That airport's not going anywhere, at least nowhere in the near future. Out of curiosity, to what extent in parts of Town would anyone be obligated to inform, say a residential property buyer, potential, that while they're not particularly near the airport, they are actually well within a flight path. How does -- would an ordinance apply there? Michael Watkins: The footprint of the noise overlay specific to the noise contours that are generated by periodic updates to the airport master plan and that footprint hasn't changed. Outside of that district, there are no technical requirements of disclosure. Council Member Steinberg: Exactly. The extent of it becomes part of the issue. There are other types of businesses we recognize. The data centers, for example, at least all the technology was notoriously noisy. As those things came online, it would be interesting to know who was required to inform prospective buyers that they were moving in next to a data center. What concerns me, specifically in the specific case that brought this to us, is that the business responsible for the noise may not be there next week. These individual businesses that surround residential or within residential areas, of course, that's a very fluid situation. How would you even think to craft an ordinance that might define in very general or generic term to make this thing work? I see it as a difficult problem. Michael Watkins: Absolutely. I don't have an answer for you this evening. Like I said, with the limited research that I did do, I wasn't able to find a general application and noise disclosures. I did, however, find the reference in Loudoun County zoning ordinance with regard to making sure that at least the development plans are there and available, and that the purchaser has had an opportunity and actually signs a notice to say that they were given the opportunity to review those documents. Council Member Steinberg: Okay and obviously, we would be considering this Town -wide. A very obvious example might be the townhomes that are being built by Stanley Martin across from the wastewater treatment plant, and all sudden people want to know, "Where's that smell coming from?" Well, you can certainly see it. One might have the expectation that moving-- I moved from a very rural area into Town. I assumed it was going to be brighter and noisier, which is not to say we shouldn't necessarily take steps or ignore the situation, but I can see that it's going to be a balancing act if we're to devise an ordinance that will work well. New development makes sense. We know if Church and Market ever gets built, hopefully people moving into that realize they're right in the heart of a downtown area, and that might expect to bring some noise with it. We'II see how we can craft this to cover broader definitions. Thanks. Mayor Burk: Ms. Nacy? Council Member Nacy: Thank you. Just sitting here listening and thinking, and same thing. I see a need for it potentially with new applications doing what you suggested, where we add something like the County has, I think that's a great idea. That people are signing something that says that they've had the opportunity to review this. Going backwards though, for stuff that already exists, we do have to rely on the zoning that we already have which is good. For the noise, especially. It's pretty clear, 10:30 to 8:00 PM on weekdays, 2:00 to 10 on Fridays and Saturdays. I don't know if we have something for Page 61 April 26, 2021 odor. Noise is obviously covered, but how do we address that example of smell or something like that? Is there such thing as that or are people are just stuck? Michael Watkins: We would cover that under the Nuisance Ordinance in the Town Code, that's how we would address odor. Council Member Nacy: I'm just thinking ahead to an application that's in process now that there is going to be an odor issue attached with fisheries. Thank you. Mayor Burk: But do you feel that that's already addressed? The odor aspect of it, do you feel-- Your answer to her was we would take care of it in the Nuisance Ordinance. You feel that you're able to address it already? Michael Watkins: Yes. Mayor Burk: So that is taken care of. Ms. Fox? Council Member Fox: I just want to follow up that I don't expect anything retroactive with things that already have been-- That wasn't what was going through my mind. It's the new projects going forward, because I think there are a lot of infill. I really think that, as the Mayor said, that we can tighten it up just a bit, just to let folks know what's going on going forward, but I don't expect anything retroactive. Mayor Burk: Anyone else at this point? Ms. Fox, are you asking to initiate an ordinance change to require that any new development have a disclosure concerning noise? Is that -- Council Member Fox: I think that might be the best way to go. I think we should just keep it to noise, because things are covered elsewhere in nuisance, but noise if there's infill anywhere in Town, I think if we had a tighter disclosure, just so people know. We can say or the developer can say, "They knew it when they bought it," and probably help the police out of it too with all the noise complaints. That's just where I'm going with it. Mayor Burk: Just so that we're clear on what we're voting on or not voting on, shaking our heads on, that we would require- and correct me if I'm out of bounds here, but we would require any new development to disclose the possibility of noise issues? Yes, Mr. Martinez. Vice Mayor Martinez: To Neil's argument, would informing residents that they are within smelling distance of our sewer plant -- Mayor Burk: Well, he said that's covered under nuisance. Vice Mayor Martinez: It is? Mayor Burk: That's what he-- Yes, that's what he said. Vice Mayor Martinez: I missed that. Michael Watkins: Madam Mayor, one second. If I would suggest this, if we can keep it broad based on the nuisance that are-- Not nuisance. Sorry, that's the wrong word. The nuance in drafting language, I'm afraid that we may not be able to hit the nail on the head if we keep it narrowly defined with the initiation. I think we would work hand in hand with our Department of Plan Review and the Town Attorney's Office to identify potential adverse impacts to adjacent properties. We could qualify that by references to odor, noise, things of that nature. Mayor Burk: What action are you asking from us tonight then? Michael Watkins: This evening it would be your indication that you want an ordinance amendment to, I would probably say, the all three ordinances, Town Codes, zoning ordinances, and our design and Page 71 April 26, 2021 construction standards manual, if necessary. We may not need to change all three documents, but at least we've got the bases covered. Mayor Burk: We are changing it to requiring -- Michael Watkins: Disclosure of potential adverse impacts. Christopher Spera: To develop a set of standard conditions regarding disclosure of potential adverse impact. Mayor Burk: Ms. Fox, does that meet your intention? Are there four people that would be interested in having -- pursuing that? Ms. Fox, Mr. Steinberg, Ms.-- All of us. We're unanimous tonight. Thank you very much. Michael Watkins: You're welcome. Mayor Burk: Appreciate it. The next item on our agenda is the Legislative Wrap -Up. Keith Markel: Good evening, Madam Mayor and Council. Wanted to share just briefly with you this evening some of the outcomes of a very busy and very unique year in the State legislature's history here. Obviously, they've had a number of special sessions. They had their General Session, much of it was virtual. The General Assembly met fully virtual. The Senate met offsite, the Capitol was closed. The office buildings were closed. All civic and public participation was virtual. A very unique year, but still a very active year on the part of the General Assembly. We had a Council - approved legislative agenda and position statement, which was presented and shared virtually with our local legislators. No bills were specifically sponsored on behalf of the Town by these legislatures, but there were a number of bills that came out of this year's sessions that I think are important that are ones that have showed up in some form or fashion on your legislative agenda or also our general interests. I thought I'd share those with you this evening. Then if you wish for more information, we certainly can have future discussions and future work session on the topic discussions on these important issues. The first one, as you're all very familiar with I'm sure, with the police reforms that came with the special session back in 2020. I don't think we've spoken since. We'll just hit the high points here. The Omnibus Senate bill 5030, carried with it many other pieces of legislation that were all rolled into that single bill. What does this mean? You may have seen a number of localities here in Virginia now are banning guns in public buildings, in public spaces, which was previously not permitted. Law enforcement agencies must request prior employment and disciplinary history for new hires. This is a new requirement that prevents folks from traveling from one jurisdiction to another that might be bringing baggage with them that would go unnoticed. This is something that would be forced to go in and look at. The Civilian Law Enforcement Review Boards, as our Town Attorneys touched on in the past. This had unique language in it that prevented towns from directly establishing one for themselves, but it does allow cities and counties. This does require a future work and review. Officers must intervene when they witness success of use of force, and then universal background checks for gun sales for all editions within this piece of legislation. For the General Session, regular session that began in January, there are a number of topics that were items that you all had discussed in the past. The first one of interest we thought was that local governments can now meet fully virtually during a declared emergency without the limitations of only discussing those topics related to the emergency. We are right now, still in a declared state of emergency. You'd be allowed to meet fully virtual and discuss any matter or topic. Speed limits. You're now allowed to lower the speed limit below 25 miles an hour in certain circumstances. If you're in a residential or a business district, you can go below 25, but not below 15. This is something you may want to consider in the Downtown or other residential areas where speeding may be an issue. Design of designated outdoor refreshment areas. This renames an existing permit, Page 81 April 26, 2021 the Local Special Events License, and this allows 16 events currently that allows a less restrictive use of alcohol sales and consumption. One example here is in the Downtown, when we have Stroll the Streets or those Friday, Saturday, Sunday dinings. Having this permit would allow folks to travel more freely in the public space, similar to what you'd see as it was tried at the Outlet Mall or at Village at Leesburg. This would take it public. Currently, you can have 16 of these events, but at the request of the locality, if the locality has an ordinance in place, you can't ask ABC to approve more. If you wanted this to be every Friday or every Saturday to coincide with other activities or events, that's something to consider. Marijuana legalization. This is another big issue that came out of the session. Beginning July 1, the public will be able to possess up to one ounce of marijuana on themselves. They're able to grow four plants at a household. There are a lot of other nuances to this bill as well that will have to go through in the next General Assembly session and get readopted before it can take effect, but it establishes regulations and licensing structure for the cultivation and retail sale. Localities can regulate the taxing, the location, the hours of the sale. Whether or not you want people to be walking on the street using marijuana or if this is something they have to do in private. Again, much of this requires reenacting in the 2022 session. November elections. This doesn't directly impact Leesburg, because Leesburg moved its elections to November a number of years ago, but this does require that all localities in Virginia hold their elections in November. This means that Leesburg would not be able to switch back to a May election cycle if it chose in the future. Wastewater nutrient legislation. This was a very big win for the Town. The Town was party to a lawsuit on this topic, joining with other localities that were going to be very heavily impacted by this legislation that was part of the WIP 3, that Watershed Improvement Plan with three requirements, which had that floating cap regulation. That meant that the Town of Leesburg and a number of other localities that had traditional wastewater treatment plants, we meet all of the requirements, we meet all of the nutrient loading, but what happened was that they would change the nutrient requirements that cause a greater reduction in nutrient loading going back into the stream and would require major upgrades to a much more enhanced treatment process. Would've cost tens of millions of dollars. In partnership with Virginia Wastewater Board and our partnership there, along with the folks at Chris Pomeroy and his law firm moving this forward, Senator Hanger introduced legislation that removes this floating cap regulation, really prevented the Town from an extreme expense. This was a major win. Should note though that any future plant expansion would trigger nutrient changes. We're locked in at our current regulation, but new plants have to meet new, more stringent requirements. Something to consider when you're considering plant expansion. Property clutter. This is a new tool in the toolbox. It allows localities to regulate clutter. Currently we have health, safety, general welfare, if you have to have a really extreme case to be able to go in and force the cleanup in a yard. Most of our work is done trying to encourage a resident to clean up the property. This allows a locality much greater discretion in cleaning up private property that's seen as unsightly to the neighbors or to the Town. The Town can notice the person. If they do not clean up, the Town can go in and clean it up themselves and bill a property, or you can bring in outside contractors to do the cleaning and then bill for that expense. Energy conservation and electric vehicle charging stations. This is something that goes into effect in July of 23, but it requires localities who are building larger projects over 5K square feet, or renovations over 50% of the value of the building, is required to put in sufficient charging stations for electric vehicles, and they also have to have building energy monitoring equipment. More details I'm sure will come out based on these regulations, but it's something that we'll be considering as we move forward with future Town projects. Tree conservation. I know this is something that's been on your list there for priorities for the legislative agenda for many years. There's new bills that allow additional regulations to be adopted by the localities for tree preservation, canopy preservation, and reforestation. There's going to be a special stakeholders' workgroup created by different State agencies, Department of Agriculture, Department of Conservation and Recreation, to Page 91 April 26, 2021 look at providing recommendations to localities, best practices, and sample ordinances to implement. This also must be reenacted in the 2022 General Assembly session. Things that we know will come back next year most likely. Qualified immunity, that was discussed heavily, but was not passed. Additional policing legislation, certainly, and then the marijuana reenactment of a number of those critical components of that regulation. With that, I'm happy to answer any questions. Mayor Burk: All right. Thank you. Does anybody have any questions at this point, Mr. Steinberg? Council Member Steinberg: Thank you. Thank you for the presentation, Keith. First of all, I assume virtually anything involving gun control and background checks, is that entirely at the State level or is that at the County level? Keith Markel: I believe it's all at the State level, but the Chief of Police is here, who can answer any specific -- Council Member Steinberg: That's not something LPD is involved in, in terms of enforcement? Keith Markel: Just once the State passes it, then it would be for enforcement. Council Member Steinberg: As far as the marijuana legislation, use and possession of a specific amount, goes into effect as of July 1st? Keith Markel: Yes. Council Member Steinberg: Other things will be reconsidered in the next legislative session. As a locality, we can enact certain regulations around that, I presume. Again, in State law, that will direct most of the enforcement practices and procedures involving that, unless somebody runs afoul of a local walking down the street. Are you saying that the Town of Leesburg could actually prohibit people from smoking as they walk down the street? Keith Markel: Correct. As I it understand it, that's the case. If you didn't want people going to Ida Lee and smoking or if you don't want them walking down King's Street doing that. If you didn't want certain sales taking place in certain locations, I believe you can put proximity around certain. You may not want to go next to an elementary school with distribution centers, and things like that. A lot of this is going to yet to be worked out and has to be reenacted, but there's certainly lots more to learn. Council Member Steinberg: Some of the regulation could be somewhat similar to that which we see for alcohol control, similar types of things in terms of public use, and so on. When and where, all of that, but still to be determined to a great extent. Keith Markel: Correct. Council Member Steinberg: As far as the tree conservation, does that legislation in any way- and I use the current site that will become Crescent Park as an example. To what extent does this legislation allow us to control the clear -cutting and entire removal of a forested area for development? Which, as I understand it now, we are not empowered really to do. Keith Markel: That's a good question, and I don't have an answer for you yet on that. We'll have to look into this piece of legislation as it's constructed. What it does in a lot of cases, it expands out the controls that planning district date, which is our planning district already has. A lot of this we already had in place. The Town already has a Tree Canopy Preservation ordinance and a lot of those things in place. What it means when you have an approved site plan, it allows for clearing and grading, and then the developer stops mid -project, what sort of tools we have to go back and require a reforestation or those sorts of things. That I don't know, but I can look into it for you. Page 101 April 26, 2021 Council Member Steinberg: Then finally, with the WIP 3. For now, we're good. Were we to expand, we would have to upgrade. If we are simply doing what we would consider maintenance and repair then, what's entailed regarding the new legislation? Keith Markel: That does not change your permit limits. As long as you're not increasing capacity, increasing treatment capacity, you can operate under your current permit. You don't have changes in your nutrient load requirements. Council Member Steinberg: As things stand now. Keith Markel: As things stand right. Anything can always change. Council Member Steinberg: All right. Thanks. Keith Markel: Currently, that's not an issue. Mayor Burk: Mr. Martinez? Vice Mayor Martinez: On the civil law enforcement review boards, if the County decides to implement that, now would that also covered the towns in-- For example, out of County decides to have a review board. Could they also cover the towns? Keith Markel: I'll ask the Town Attorney to weigh in. Christopher Spera: Yes. That was the anomaly in the way that the State Code section was drafted. It allowed counties to create review boards that reviewed any police department within the County borders, including police departments of towns, of universities. There were other enumerated types of law enforcement organizations. Particularly -- Vice Mayor Martinez: If Leesburg had an incident, Chief Brown would have to report to the County Review Board. Christopher Spera: If they created one. The additional complicating factor, and I think I touched on this one when I briefed you on this several months ago, is that as the legislation currently exists, sheriff departments are exempt. Here in Leesburg, potentially Loudoun County could create a review board that reviewed Town police departments, but would not review their primary enforcement vehicle. As the Mayor, and Keith, and I did our meetings with the legislative members, we raised this, and I shared the memorandum that I had written on this topic with them to point out the inconsistency. Vice Mayor Martinez: Well, isn't that special? Talking about the pot issue, with the plants. Say somebody lives in apartment and wants to put four plants at their family's house, and then a family house wants to put four plants. Is it four plants per home or for plants per family? How are you going to separate that? Keith Markel: I believe it's said by household. Vice Mayor Martinez: By household. Keith Markel: Not per person or per adult. Vice Mayor Martinez: If one person has a household, but he's planting it somewhere else, because he doesn't room to plant it on his own -- Keith Markel: There's going to be a lot of interesting things that come out of this legislation. Vice Mayor Martinez: I just wanted to make sure about that. Then what about plants on public property? I'm thinking more of the master gardeners. What if they decided to put four plants on? Page 111 April 26, 2021 Keith Markel: You'll see a big boom in your community garden plot interest. That would be something that the Town could regulate. Vice Mayor Martinez: Then I wanted to ask the chief if they have done any creation of a DWH infraction? Driving While High. Gregory Brown: Sorry, could you repeat that, sir? Vice Mayor Martinez: Have you come up with a way to measure somebody who's driving and is impaired while they're high after smoking some pot? Gregory Brown: That's one of the negative impacts of this legislation is training. Is we have basic training to be able to determine certain levels of inebriation, but that's only by visual observation if we do not have any tools like a breathalyzer to determine that. You have to actually take them to the hospital and draw blood. That's part of the problems with this legislation. Vice Mayor Martinez: Okay. Gregory Brown: It's going to have a negative impact on how we can determine when individuals are inebriated beyond a point where they can safely operate. I don't know even how we're going to prosecute a lot of these cases. Vice Mayor Martinez: Well, I'm just wondering if there was anything you have, that your officers can pull somebody over and go through some steps to identify whether they have or not, other than smelling it? Gregory Brown: Yes. We will use our standard field sobriety test or SFST. We would use that in lieu of, but we don't have that next step, which is the actual breathalyzer that we use for DUI per se. DUIV you can still use, SFST or standard field sobriety tests, but that's only for steadiness, consciousness, things of that nature, and being able to operate your vehicle. Vice Mayor Martinez: An indication is how many McDonald boxes they got in a backseat. Thank you. Mayor Burk: Are you done, Mr. Martinez? Vice Mayor Martinez: Yes, I am. Mayor Burk: All right. I do have a question about the marijuana issue. When is it that the Town can set the tax rate for it? Keith Markel: I believe that's next year. Mayor Burk: We have to wait until next year? Keith Markel: What's that? Mayor Burk: We have to wait until next year? Keith Markel: Next year. They have to reenact a number of these things which includes the regulation, the taxation, the sale, all those things come about with the reenactment of this next 2022 session. Mayor Burk: Okay. Keith Markel: The only thing that happens in July 1 is that it's legal now for you to possess it and to grow it up to four plants. After that, all those other municipal regulatory issues kick in next year with reenactment. Page 121 April 26, 2021 Mayor Burk: Darn. I was hoping we could get some money there. No. With the Chesapeake Bay Act, while the cap has been removed, we still have regulations we have to follow? Keith Markel: Absolutely. Mayor Burk: We're still working to make sure that we do provide clean water back into the streams and that we aren't polluting the Chesapeake Bay. Keith Markel: Absolutely. We always exceed the nutrient requirements that are set by the State forest. We always run a very healthy, very solid plant, never had any violations. That was-- The hurt of the legislation it was before this was changed was that you were penalizing localities that run very solid systems that meet all of the requirements set before us, but we're still being asked to do more. That more would require substantial overhaul to the plant operations. This is a huge win for a number of localities. Mayor Burk: With our construction of our police station, will we be required to have electric charging stations with the new legislation? Keith Markel: Based on this legislation and our timing, it looks like we'll probably be under construction before this would take effect. That being said, we're already looking at this and you'll be seeing an item here in a few weeks, looking at a Dominion Energy Grant that would provide funding to do installation. One of the sites we're looking at and getting quotes for is the police station. Mayor Burk: Okay. Thank you. Ms. Fox, do you have any questions? Council Member Fox: Thank you. I do have a couple of questions. Chief, I wanted to get your opinion, just an open opinion about both community review boards and collective bargaining. Starting with community review boards, I don't know the nuts and bolts of what the State legislature has passed, but would this, to your knowledge, include delving into HR issues? Gregory Brown: Yes, they would. Council Member Fox: Let me know how you see this, how you feel about this idea. Gregory Brown: I've been doing a little research myself. There are actually four different common models. I do not have my notes with me right now, so I won't be able to go into that. I wasn't prepared to come up. I don't know if our legal counsel has that. I've had several conversations internally with my folks and with other chiefs. During my initial recommendations a few months ago, when we initially discussed this, I recommended doing a needs assessment for what the Town really needs and wants. I think many of the different jurisdictions that have incorporated these type of review boards, whether it be a citizen review board with just investigatory powers and subpoena powers or whether it be an advisory commission, they derive those different models from a need from their community. That would be still be my recommendation, is before we proceed with anything is to do a general assessment of what the needs of our community is. That includes, of course, us having conversations, discussions on the amount of cases that we currently have, whether it be use of force and complaints, so forth, and so on, which I disclose every single year in our annual report. Just have those discussions with our community. Then even if we have to put together a working group to come in and determine what model best works for the community. I've always cautioned that we shouldn't just proceed with what's happening somewhere else to fashion what we have here. Mayor Burk: We will be having a discussion on this. It is-- Mr. Martinez asked for that to come up in a work session. We will have a further discussion specifically about that topic alone. Page 131 April 26, 2021 Council Member Fox: Good, because I have a lot more questions, but-- How about the collective bargaining issue? What are your thoughts on that now that the legislature has passed the possibility of towns being able to enact that? Gregory Brown: I come from a State originally with a strong- very strong collective bargaining-- As many of you know, my home state is New Jersey. I always tell you don't hold that against me. Nonetheless, I can tell you it was beneficial as an employee. I cannot speak negatively towards unions. Again, I would though stress caution, because many of the issues within policing that we currently have on a disciplinary side are directly related to issues with unions. I think that's a deeper discussion which I also think Council here is going to be speaking about, but I have no objections and I've stressed this before with having a discussion on collective bargaining as it pertains to paying compensation to the police, but I strongly caution moving forward with anything that would allow collective bargaining to step over the grounds of policy and discipline. HR issues, things of that nature. Council Member Fox: Okay. Thank you. Mayor Burk: All right. Anyone else who hasn't questioned? Council Member Steinberg: [unintelligible]. Mayor Burk: Just a minute. Anybody else? Council Member Steinberg: This actually is going to be [crosstalk] -- Mayor Burk: Excuse me, Mr. Steinberg, I just want to make sure that someone who hasn't asked. Council Member Steinberg: Oh, I apologize. Mayor Burk: Did you guys have any questions? Council Member Nacy: Sort of, but it might be covered in collective bargaining. If it's going to be, you can just hold it. Chief, just a follow up to that really quickly. Sorry, you just sat down. Gregory Brown: That's okay. Council Member Nacy: If qualified immunity is ended and people can personally sue a police officer, how would that then, in your mindset not only impact getting candidates to become-- the hiring process, but also the collective bargaining portion? Gregory Brown: When you think about QI, qualified immunity, qualified immunity is a very broad covering of the law. Many jurisdictions already have policies in place that address qualified immunity. Qualified immunity actually affects the jurisdiction to essentially keep frivolous lawsuits from moving forward. That's the correct terminology? But many jurisdictions already address these issues. I think a lot of times when we talk about qualified immunity, there's not enough education behind exactly what the removal of qualified immunity is, and it's just not police. It's everybody that's in a public capacity. Firefighters to elected officials. Everybody gets affected by qualified immunity and can be fraught with frivolous lawsuits. I think it's more of an educational and talking point, and to make sure that the public is educated as far as exactly what qualified immunity is, similar to the discussion we had a few months ago with defund the police. A lot of people are just grabbing a hold of that and they just think it means that it removes certain protections for police that are really already in place. In regards to QI, I don't know that -- we're seeing states, actually, that are being successful in removing -- I think Texas was the most recent state that actually was successful in passing -- Was it Texas? I'm not even sure. Page 141 April 26, 2021 Christopher Spera: I think that's right. Gregory Brown: Yes, it was the most recent state, but I'm curious to see how that plays out when these lawsuits are actually brought forward. The conversation of qualified immunity, I don't think is over yet. There's a lot of work to do and I guess it's going to have to play out in court when people do bring these lawsuits, but we have to remember removal of qualified immunity affects everybody in an official capacity in their day-to-day decisions. In regards to how it would affect law enforcement, I'd say that they are successful in removing qualified immunity for Virginia law enforcement officers. That cost is going to have to come from somewhere. I hear a lot of folks talking about insurance and so forth and so on, $1 M, $2M insurance. I can tell you that cops don't make enough money to be able to afford that, so the cost is going to have to come from somewhere. Again, this type of legislation when you're pushing this forward, if it is successful in passing and it does take root, there is going to be a difficult time in recruitment. There's going to be a difficult time in retention. I can't tell you what the cost would be, but if you want police officers to come in at the current rate, that's just not going to be feasible because they won't be able to afford to even take care of their families. They don't make doctors' money, and we all know what a lot of doctors pay in malpractice insurance. There's a lot of things that's going to have to be discussed prior to qualified immunity even being really considered. One of the thing is, we have to start educating the public and understand that it just doesn't affect police, it's the whole Town government. There is going to be a cost associated with it should it successfully be passed. Mayor Burk: All right. Mr. Steinberg? Council Member Steinberg: Actually, Chief Brown. Since Councilwoman Nacy brought this up. Just in terms of trying to understand the limits of qualified immunity. Is qualified immunity applicable only in civil actions? What we just saw played out nationally with Officer Chauvin was a criminal situation, so qualified immunity did not apply there. Is that correct? Gregory Brown: What we just saw with Derek Chauvin, yes, is the criminal side. Qualified immunity is only just civil side. Council Member Steinberg: Okay. Gregory Brown: You have two different sides and now the DOJ just announced that they are probably going to be looking into that case as well, along with Louisville as well. You've got civil and criminal, totally two different aspects. Council Member Steinberg: Precisely. All right. Thank you. Then Keith now, or Chris, whoever's best qualified to answer. In the discussion as we get into it with either oversight or review boards, is it the County that will be doing this for the towns or are the towns free to form their own board should they choose? Christopher Spera: The way the legislation is currently drafted, a town does not have the ability to form its own board. Council Member Steinberg: Okay. That being the case -- Christopher Spera: That was the gap that we were discussing with the elected officials in trying to point out the incongruity in the way that the legislation was enacted. Council Member Steinberg: That's what I was wondering. Then to what extent would we actually be afforded input in the formation of such a board or a panel, but we don't know any of that as of yet. Page 151 April 26, 2021 Keith Markel: I think you probably would want to ask that to be a cleanup in the 2022 session that hopefully it was just an oversight in the legislation that they can go back and correct because I'm sure there are many other towns that have the same concerns that we have with this legislation. Council Member Steinberg: Okay. Thanks. Mayor Burk: All right. There's no action at this point, but we ought to make sure that we're starting to think about what do we want to bring forward for our next legislative items in the next coming months, and won't be very long before we'll be dealing with this for next year. Thank you very much. Keith Markel: Thank you. Mayor Burk: All right. The next one is Collective Bargaining for Local Government Employees. You're doing this one Mr. Spera? Christopher Spera: Yes, that is Josh and I. It wasn't that long ago when we spoke about this last and I outlined for you the three options that were available to you with respect to collective bargaining. At that time, Vice Mayor Martinez asked that a survey be conducted and our HR director did a very good job putting that survey together. Based on some discussions that we had, ultimately, HR [unintelligible] a little bit over 200 eligible employees, we got a 40% response rate. It was a very simple survey. It was a brief explanation of what collective bargaining was and why we put the survey out. Asked if folks were interested, basically, yes, no, need more information, and then they had the opportunity to provide comments. People could identify by department, we did not ask for names, obviously, but we did track by department. There's your pie chart. Of the folks who responded, obviously, about 40% of the folks said yes, they were interested. Some said no, some said they need more information and a lot of people didn't respond, but clearly, at least within some of the responding groups, there was some interest. Here's your breakdown by department. Utilities and police seem to be the two areas where there seemed to be the most interest among those who chose to respond. Again, both utilities and police have more than-- We had 30 responses within utilities, we have more than 30 employees obviously within utilities and 27, 28 responses within police, total. Obviously, we have approximately 80 sworn officers total. A lot of folks didn't respond, but of those who did, they seem to indicate that they were interested. A little more of a breakdown on the comments. They mentioned K benefits. There was several mentions of the frozen merit increases, which as I understand it are attributable to the pandemic, not to any policy decision by the Manager or by the Council, but obviously, it struck a nerve. Of the negative comments, the most common theme there was the additional cost, the union dues. As you recall from our last briefing, you essentially have three options. You can set the table in advance and say, "Here's what we're willing to talk about. Here's what we're willing to discuss." You can wait until someone comes in, at that time, you can determine the scope and what the appropriate bargaining units might be, or you can preemptively say no. When we talked about these options the last time, option three did not seem to have much interest but we focused on these first two options. I know that the County recently went with the first option. I would just say this, and again, I don't want to come across as pro or anti, because I am neither, but we are not that large. We have less than 400 employees and probably less than 300 of those employees would be subject to being part of a collective bargaining unit. We're relatively small. Because we're relatively small, I think that option two probably makes the most sense. I think that that way, we're not saying no, we're letting the employees self -determine. If they're interested and they can get the critical mass, if you will, by having an election and getting a bargaining unit put together, then we will sit with them and negotiate and do the things we need to do to figure out the scope and the scale. Page 161 April 26, 2021 I echo the Chiefs comments with respect to wages and benefits versus the entirety scope of employment. I think with a relatively small workforce, I believe, just my opinion, that it becomes really unwieldy. If I've got a bargaining unit of 75 employees here, and they've got a different discipline system, then the 60 employees here versus the 70 employees over here, that's pretty tough. I think it's pretty tough to administer. Now, it's different if you're a large jurisdiction, you've got several thousand employees, then maybe it makes sense to say, "Okay, I've got 500 to this kind of worker. This is our disciplinary system for those 500 folks," but if we're talking about a smaller number, given the size of employer that we are, 1 think that becomes very, very tough, and tough is a code word for expensive, to administer. I would echo the Chiefs comments, obviously, his were tailored towards the Police Department. My recommendation is that were we to embark upon this, that we limit the field of our negotiation to wages and benefits as opposed to the full scope of employment. With that, any questions? Mayor Burk: Are there any questions at this point? Mr. Bagdasarian? Council Member Bagdasarian: Yes, Mr. Spera, thank you very much. Just to be clear, there needs to be some formal organization entity, right? For employees to collective bargaining? Christopher Spera: There has to be an election by a group that is legally recognizable as a bargaining unit. They have to be similarly situated employees. For example, if a unit came in and say it was law enforcement and labor and trades together tried to be one bargaining unit, we could reject that proposed bargaining unit because they'd be different things and it really doesn't make sense. If you recall from our last discussion of this, the six most common bargaining units for municipalities are social services, education, fire and EMS, police, labor and trades, then administrative and professional, those six. Of those six, we don't have three of them because we don't operate a school system, we don't have fire and EMS, and we don't have social service. The only three bargaining units that I think makes sense for Leesburg are police, labor and trades, and administrative and professional, those three. Council Member Bagdasarian: As part of that organization, is it required to have collect dues and have some governing body, so it's not just employees? Christopher Spera: Correct. Basically, a union would come in, identify who they're trying to solicit, as their, for lack of a better term, client. Identify they work with the Town to identify the employees who are within that proposed bargaining unit. They would hold an election. If they got to critical mass, they would be certified as a bargaining unit. Then we'd have an obligation to meet and confer with that bargaining unit, pursuant to the terms and limitations that you would set. For example, if you were willing to entertain the full scope and scale of employment, all that would be on the table. If you limited it to wages and benefits, then that would be all it was on the table for that bargaining unit. Council Member Bagdasarian: Okay. Thank you. Mayor Burk: Mr. Martinez? Vice Mayor Martinez: After giving it some thought, I really think we should be proactive and consider number one. Also, we hear your side of it. Now, I have been a member of a government union and I know there's a lot of different subtleties in that. What I would like to see is if we can get an expert, either somebody from a union, like SEIU, or somebody that manages a police union to come in, or have some information that they can provide us to provide their side of the story. I would like to see that. Thank you. Mayor Burk: Mr. Steinberg? Page 171 April 26, 2021 Council Member Steinberg: Thank you, Chris. In reality, is here, we're likely to see two attempts at collective bargaining. The graph was pretty clear that the administrative staff is not at all interested, so we'd be looking at the LPD and then the trades as far as collective bargaining. Getting back to one of the questions, or one of the reasons for being in favor had to do with the freezing of merit increases. I presume in the process of collective bargaining, the Town could negotiate for situations such as the one we're still dealing with in the event of a critical situation, like a pandemic, that that particular situation could also be negotiated into a contract. Is that correct? Christopher Spera: That's correct. Council Member Steinberg: Okay. The unionizing or the act of collective bargaining would not, in and of itself, necessarily say this is going to go away. We could still make that part of the negotiation. Thanks. Mayor Burk: Ms. Fox? Council Member Fox: Just a couple of questions. I noticed that we have this on the agenda for tomorrow night as a resolution. I'm just wondering why it meets resolution and not public hearing criteria. Christopher Spera: Because we're not changing the Town code and the State code section gives you the option to do it either by resolution or by ordinance. Council Member Fox: Okay. When you talked about your survey results, all in all, 52, if I did the math right, of the 214, were interested in some sort of going forward. That's about 24.5% of employees who would be eligible for collective bargaining. Is that correct? Christopher Spera: Ms. Fox, if I could do math, I'd be a doctor. The raw numbers if they're accurate, if that reflects those percentages, 1,11 take your word for it. Council Member Fox: 52 of the 2-- Very good. Quick math, I would say about 25%. Christopher Spera: It really depends. This is always the issue with statistics. Can you take the results of the survey and say, if this is how 50 police officers responded, or 30 police officers or 28 police officers, whatever it was, if that's how they responded, is that going to apply across the board, or could you say, well, only the folks that were into it that were excited about the union responded and those who weren't, didn't respond. I don't know. I don't know the answer. You got lies and you got statistics. I don't know. You can take your statistics and spin them whichever way you want. Council Member Fox: That's how I passed statistics [unintelligible]. I get what you're saying. I'm just trying to get a feel for the percentage of the folks in Town who are eligible, who actually wanted to do something about this. It's about 25%. Christopher Spera: 40% of the eligible -- Council Member Fox: Of the eligible -- Christopher Spera: -- of the pool responded. Council Member Fox: They were respondents. Christopher Spera: -they were responsive, and then less than that responded in the affirmative. Council Member Fox: Got you. Those are my two questions for tonight. Thank you. Mayor Burk: Mr. Cummings? Council Member Cummings: Mr. Spera mentioned option two is his suggested option. What is to be gained by choosing option two over just setting the table tonight or tomorrow night for option one? Page 181 April 26, 2021 Christopher Spera: To me I think what it does is it allows self-determination by the employees. Obviously, there's is still some self-determination because they would still have to organize, have an election, certify as a bargaining unit. At this level of response rate and with a relatively low number of employees that we have, I don't know that this to me is an overwhelming mandate, one way or the other, I guess is how I'll phrase it. To me, if what we were trying to do was determine if this is something that the employees are interested in, then option two gives them the greatest amount of self-determination of, "Yes, we're interested, we're coming in. We're initiating this as employees." That's why, to me, option two was more preferable as opposed to the Town inviting it. Basically, saying to the employees, "This is your call. You guys decide if you want to talk to a union. You guys have those discussions. You guys have those elections. If you manifest that level of interest, we will in good faith meet and confer." Council Member Cummings: Is there any concern about the beginning -- if some employees came and we're able to do all the steps that it takes to get to the point to come to the table to collectively bargain and we have gone with option two, and they come for the whole kit and caboodle, let's say they want to collectively bargain everything, and we as a Council say we only want to bargain, for benefits and wages. They've come with everything we want to give them half, so we already start these collective bargaining talks at two wildly different stages, or two levels. Is there any concern in that, that the first interaction between management and the employee is already off of equal grounds? Whereas if we set the tone tonight or tomorrow, and say we're going to be willing to collectively bargain wages and benefits that if the folks who want to organize, who decided to organize, say, "Great, we know exactly what we can ask for if we're able to do this." Christopher Spera: It's a matter of strategy. I think that it's really your decision. I'm sure that somebody would come in and say their experience was consistent with what you just suggested. I'm equally confident that we can speak to somebody else from another jurisdiction, and they would come in and say that their experience is better with what we're proposing. I think it's going to vary from situation to situation. I know, for example, talking to my former colleagues in Alexandria, tremendous amount of pressure on them before they enacted their ordinance to do full terms of employment, not just wages and benefits. That fight was being had, whether it was in the context of the inaction of the enabling legislation, or whether it was being had in the context of negotiations, that same fight was being had. Council Member Cummings: Sorry, one more quick question. What is our timeline? I know this takes effect May 1st. What is our timeline as to act on any of the three? Christopher Spera: The effective date is May, 1. If you were to choose option two, then you have an obligation once a unit comes in, a bargaining unit comes in, you've got basically a four -month clock that starts running to decide what you're going to enact if you did option two. Council Member Bagdasarian: And option one? Christopher Spera: With option one, the sooner you get something enacted, the better, and same thing with option three. Either you're laying the table or you're saying no, the sooner you do that, the better. If someone comes in, basically it forces you on option two. Mayor Burk: Ms. Nacy? Council Member Nacy: Thank you. Just a couple of questions. The fiscal impact, it says estimated cost for labor relations support and legal counsel would be between $50K and $200K in the current fiscal year if we do either one or two? Page 191 April 26, 2021 Christopher Spera: There are some costs. Typically, you've got to go to a firm, you've got to get somebody who knows something about this to help you craft your ordinance. There'll be the legal costs associated with that. There's going to be questions that arise just of a legal nature because somebody may say, "Well, if you're not negotiating on this, that's a bad fit." We're going to have to go ask a labor lawyer about that because it's not what I've done. I've been doing this for a while, 32 years of doing it, but not as a labor lawyer. We'II need an outside opinion on that. Typically, with most organizations, most government organizations, they hire an additional staff member, who is the go-between between the bargaining unit and the government. That's at least one additional person. Sometimes it's more. For the jurisdictions that I'm familiar with that have tried to take their labor stuff in- house, it can add headcount within the jurisdiction's legal office. Oftentimes, you'll see, for example, in Montgomery County, I know they've got on staff, I think it's four attorneys that do exclusively labor relations. It just varies. Again, I don't want to suggest for a moment that the Town of Leesburg's costs would be equal to what Montgomery County's cost would be. That certainly would not be a fair comparator. There are additional headcount that would be necessary, there are additional outside costs that would be necessary, and lawyers are expensive. Council Member Nacy: That's just to get it initially even just set up and then that's not even taking into account what we actually bargain. Christopher Spera: Correct. That's not even ongoing negotiations. Council Member Nacy: For the full terms and condition of employer versus just benefits and wages, what does that mean? If the Town -- Christopher Spera: Employee discipline would be part of that, pension and retirement. Council Member Nacy: If someone were to be removed, they could go back and collectively bargain to get their job back? Sorry, I just don't know. Christopher Spera: It doesn't work that way. What you typically bargain for is a disciplinary system. I think that's what the Chief was alluding to in his comments earlier and I have mentioned this in the past as well. One of the common themes that you hear when you talk to police chiefs, and they talk about, "How can this officer still be on your force?" "Well, I can't get rid of them because the union won't let me." Essentially what they're saying is that the bargained -for disciplinary process doesn't allow a clean removal. Council Member Nacy: Got you. Christopher Spera: I bet that applies in more situations than just law enforcement. The thing that worries me is what a relatively small workforce that we have, if you do a full terms and conditions of employment type negotiation, then you've got different systems potentially to administer. Union A that comes in and negotiates on behalf of the labor and trades, you may insist on and be successful in bargaining for a different type of discipline system than union B that comes in on behalf of the police force, than union C that comes in on behalf of the administrative and professional staff. It's going to be hard enough to administer from just a wages and benefits perspective, but to some extent, that's just math. If your system can be set up to say, "Okay, which one of the systems do they fall under for wages and benefits?" systemically, perhaps you can address that. Then when it goes beyond that, particularly to employee discipline, and now you're administering three separate discipline systems, potentially, that becomes pretty unwieldy to me, has a potential, at least to become pretty unwieldy, and potentially pretty expensive. Did that answer your question? Page 201 April 26, 2021 Council Member Nacy: It did. Thank you. Christopher Spera: Thank you. Mayor Burk: I got to disagree with you on a number of things you just said. First off, comparing us to Montgomery County really is not fair. Montgomery County may have four or five or six. Montgomery County is a county. It is a State that has had collective bargaining for many years and they bargain across the board for all of what they want. I wish you hadn't used that particular comparison. To employees now, Mr. Dentler, do they have a process? Could you fire somebody tomorrow without any due process? Kaj Dentler: I wouldn't. We do have a process. The HR Director is here, if you want to clarify that, Josh? I would not take that action just because I saw you and I'm tired of you and I fired you. We do have a process. You may want to clarify that a little bit more for Council. Josh Didawick: Sure. Mayor, Members of Council, good evening. I think to answer your question, the Town does have a grievance procedure. All public sector organizations in Virginia have a grievance procedure. Police officers have the option to go through the Town's grievance procedure or the police officer Bill of Rights. Even with respect to performance evaluations, the Town has a process whereas employees can appeal performance evaluations that they don't agree with. The grievance process deals with discipline, all the way up to termination. There's also an appeal process for performance evaluations. Mayor Burk: Thank you. Then back to Mr. Spera. Right now we have a process in place that is very common. As head of the teachers union, we had a grievance process. It's very similar to the process we have here. To say that we would end up having different processes in different departments, to me, that doesn't even make sense. No Council would do something like that. They wouldn't say, "This department, you can do this, but this one, you can do that." That just doesn't make any sense. It's across the board, is what we would end up doing as I would see it. By having collective bargaining, the due process clause is already there. The process is already there. If we're talking simply about budget and benefits for all of our departments, if that's what the Council were to choose, the other issues wouldn't come forward. We wouldn't be dealing with HR issues. That wouldn't come up collectively in the bargaining process. The bargaining process would be a conversation between two groups, the management and the employees. Right now, I would say that Town employees, they're pretty secure if they're doing what they need to be doing in their jobs. To me, I don't see how it's going to make so much more additional work for anybody. It will be, I know, but the costs, I think are pretty interesting. We'II have to see if indeed that is the end result of whatever we come up with tonight. Mr. Bagdasarian, did you have additional questions? Council Member Bagdasarian: I don't have. Mayor Burk: Mr. Cummings, did you? Council Member Cummings: I would just like to say, it sounds like, when the attorney was speaking, there's a lot of potential issues, a lot of potential costs. To me, that means we shouldn't leave it up to chance. We should set the tone from tonight on and I would urge us to move forward on option one in the resolution. Mayor Burk: Does option one require that the departments have to create a union? It may approve an ordinance or a resolution authorizing collective bargaining with employees setting forth the work units and subject matter where is willing to collectively bargain. You're not saying they have to? Christopher Spera: No, ma'am. Page 211 April 26, 2021 Mayor Burk: Okay. Any other questions at this point? Mr. Steinberg? Council Member Steinberg: If we choose option one, is that a 120 -day clock, or can we take as much time as we want until such time as an organization actually comes to us? Christopher Spera: You take as much time as you want. Council Member Steinberg: Okay. Thank you. Christopher Spera: Even with 120 -day clock, you have 120 days to vote on whether or not to adopt your ordinance. You don't have to have the ordinance in 120 days, under option two. Again, whichever you want to do. To me, and perhaps I was reading too much into the Vice Mayor's comments the last time we talked about this, as he asked about the survey, but it seemed at least at that time, that it was important to Council there be some employee self-determination. Perhaps that colored my opinions in favor of option two versus option one. Again, my comment was not that there should be no discipline system or due process, but that you didn't want to have three of them. Mayor Burk: Absolutely. Christopher Spera: That was my intent. If I did not convey that accurately, then I apologize for that. Mayor Burk: It's all right. Christopher Spera: The intent was not to say we shouldn't have a system, it was just there was additional cost or burden associated with managing different ones. Mayor Burk: Mr. Cummings, are you -- Council Member Cummings: I just wanted to say, if we go option one, I think we should set the subject matter as wages and benefits only. Mayor Burk: Alright. Mr. Martinez? Vice Mayor Martinez: I understand where you said that I did want a survey done, I did want to hear from the worker. My only issue with all this is they weren't educated on what the other side of collective bargaining could get them. I think that if you were to educate them on what that advantage could be, I would love to see how the numbers would change on that. The whole thing is, is that I agree with Zach in that I think we need to go ahead and move forward and in that process, make sure we educate our employees on what collective bargaining really is. Now, we may not want to do it during office hours, but have some way that they can either go online or get a day on a weekend and give them the education they need to understand what collective bargaining really is about, because right now everybody thinks collective bargaining, "Oh, you're going to have a union. Oh, if you don't do what the union wants, they're going to strike." That's not it. It's collective bargaining. It's two organizations working together to come in and reach an agreement on how each one can benefit each other. Christopher Spera: Mr. Vice Mayor, certainly the context of a local government union is very different than private sector, because striking is not allowed. Vice Mayor Martinez: I understand that. I remember [inaudible]. Christopher Spera: You understand acutely how that works. Vice Mayor Martinez: Right, but it's the perception people have that we need to educate them on. Page 221 April 26, 2021 Christopher Spera: Typically, again, as I understand, I certainly have not gone through one of these personally, but my understanding is that a lot of the education that you talk about is when the proposed union comes in and they tell their side of the story to the perspective group that would be the bargaining unit. Again, it's your choice, and as I said to Mr. Cummings earlier, there are certainly pluses to either approach, so whichever you decide, we will prepare the appropriate resolution and move forward. Mayor Burk: Okay. Mr. Steinberg, you've spoken three times. Is this --? Council Member Steinberg: I have a question, but that's okay. Mayor Burk: Do you have another question? Council Member Steinberg: I don't have a question so much as to say when I came in here, I was more or less inclined to go with option two, being unaware of the fact that we could basically divide the question, so to speak, and limit the collective bargaining to wages and benefits. Since also the issue of merit pay freezes could easily come up to set that table in advance of any overtures from collective bargaining positions might actually be the better way to go. Now, I'm favoring number one. Mayor Burk: Alright. Council Member Bagdasarian: I have one more question. This is a question for you. Between option one and two, clearly option one, the Council has the ability to set the work units and subject matter upfront, correct? Christopher Spera: That's correct. Council Member Bagdasarian: How is it impacted with option two if we do give employees the initiative to take the steps? Does that impact the Council's ability to set the work units and subject matter? Christopher Spera: Once the first one comes in, then you would have the ability to say, "Yes, we believe that's an appropriate bargaining unit," or, "No, we don't." Then at that time, you could also define other ones that you deem to be appropriate. Council Member Bagdasarian: With option one, we set that up front and it's not negotiable? Christopher Spera: That's correct. With option one, you basically say, "Here's how we see the world. These are the bargaining units and these are the things we're willing to talk about." Mayor Burk: I think the very first question is that we have to decide if we want to pursue this further. Number three says-- I'll start backwards and I'll say that the Town does not wish to collectively bargain. Are there four head shakes that believe that the town should not collectively bargain? Ms. Fox and Ms. Nacy. All right. The second one is-- I'll go to the first one. The Town may approve an ordinance or a resolution authorizing collective bargaining with its employees setting forth the work units and the subject matter where it is willing to collectively bargain. Do we have four people that are willing to do that one? We've got Mr. Steinberg, Mr. Cummings, Mr. Martinez, Ms. Burk and Mr. Bagdasarian. Vice Mayor Martinez: With the focus being on wages. Mayor Burk: We can add that, with the focus being on wages and benefits. All right? Okay. Do we have additions to future meetings? Ms. Nacy? Council Member Nacy: No. Mayor Burk: Mr. Bagdasarian? Council Member Bagdasarian: No. Page 231 April 26, 2021 Mayor Burk: Mr. Martinez? Vice Mayor Martinez: Yes. I'd like to reconsider the cemetery drainage issue we had. This has nothing to do with the Loudoun Freedom Center, has nothing to do with any organization or any people that have come to Council, made false allegations and tried to intimidate the Council to do something. This has to do with the respect for the African -American community, the descendants of slaves and their families that are still around in the area. I would like to bring it back and to have it not to exceed a certain amount determined by the Town staff in what we can do. Mayor Burk: Are there four votes that want to reconsider our plea for the public hearing on the cemetery? Mr. Martinez and Mr. Cummings. That does not move forward. Vice Mayor Martinez: Okay. On the board and commission's report, we need to update the commissioners on it. There's a lot of commissioners that are not here that are still being on the attendance, so that needs to be updated. Also, I noticed COPA had several special meetings. Mayor Burk: Excuse me, I'm sorry to interrupt you. I didn't hear that. Could you-- I'm sorry. Vice Mayor Martinez: On the boards and commissions report, there's a list of attendees and how many times they've came to meetings while there's a lot of commissioners that are no longer on those commissions and it needs to be updated to reflect the current boards and commissions. I'm probably assuming that a lot of this is a result of last year's attendance and all that, but starting this year. Kaj Dentler: The Clerk's going to explain it to you. Eileen Boeing: Mr. Martinez, if there was someone who attended the meeting at all in 2021, their name would appear, but at some point when they are off the commission, we still keep records that they attended at some point during the calendar year. That's why the list sometimes exceeds seven people. Vice Mayor Martinez: Okay. There were a lot of people on there that I thought hadn't attended [crosstalk]. Eileen Boeing: We can look at color coding, the ones that are no longer on there so that they maybe get grayed out, so it doesn't look like they're current members. Well look at that. Vice Mayor Martinez: Unfortunately I'm one of those guys that read everything, and I saw that. Then the other thing I noticed on the Public Arts Commission, they had several special meetings, a few special meetings, and it seems they're really working a lot, and how's that burdening staff? Or do we need to do something to help them meet their goals with maybe additional staff hours, or however, but I know COPA, they have had quite a few special meetings. Kaj Dentler: Our practice is that we can only afford to have a staff member attend the meeting once a month. There are some situations where we will accommodate more, but we really can only focus on one a month. Otherwise the staffs work becomes simply that of the commission. Vice Mayor Martinez: What ends up happening is COPA ends up being-- they have their agenda and goals and I know they're very ambitious and I would hate to slow them down because they are doing a lot of good. As an afterthought, is there a way we can get them some interns during the summer that may help them with the load? Kaj Dentler: Interns is a challenge as well. By law, you have to hire and pay. You go to the full recruitment process, you cannot have volunteer interns anymore like in my day. There's a [crosstalk] -- Vice Mayor Martinez: I just don't want them to slow down. I like what they're doing. Same thing with Diversity Commission, they're really trying to do some great outreach and they got a lot of goals in mind, and I just would not want to slow these commissions down because they are doing a lot of good. Anyway, thank you. That's all I got. Page 241 April 26, 2021 Mayor Burk: Mr. Cummings? Council Member Cummings: Yes, just one. I noticed, and I apologize for not bringing this up earlier, April was actually Fair Housing Month and I was hoping maybe tomorrow evening at the last meeting in April, we could do a proclamation celebrating fair housing. Kaj Dentler: [unintelligible]. Mayor Burk: He does not need to do that. He just needs four people that would be willing to accept that. Mr. Steinberg, Cummings, Mr. Martinez, Ms. Burk, Mr. Bagdasarian. Council Member Nacy: And Ms. Nacy, sorry. Mayor Burk: Okay. Ms. Nacy. Council Member Nacy: [crosstalk] I'm sorry. Mayor Burk: You too, okay, everybody. Council Member Nacy: I put [unintelligible]. Mayor Burk: Okay. Mr. Steinberg, do you have any? Council Member Steinberg: [unintelligible]. Mayor Burk: Ms. Fox, do you have any? Council Member Fox: [unintelligible]. Mayor Burk: Okay. I also have one that needs to be moved to tomorrow. We had a request from Doode Summers, who has started the Young Kings Movement, which is an afterschool program for male students at risk, minority students at risk. She's been doing this now for about six, seven months. She's working closely with our Leesburg Police Department, trying to bring these kids together with the Leesburg Police Department. They are having a fundraiser at the old Walmart site. It's going to be a food truck event. She does have to have one police officer there for a total of $325, and she was asking us if we would consider waiving it for this young group that's just starting, especially since they're trying to work with the police to begin with. That would have to go on the agenda for tomorrow. Are there four people that would be willing to put that on the agenda for tomorrow? Okay. That's everybody too. All right. Do I have a motion to adjourn? Vice Mayor Martinez: So moved. Mayor Burk: Second? Council Member Bagdasarian: Second. Mayor Burk: All in favor? Council Members: Aye. Mayor Burk: Opposed? All right. Page 251 April 26, 2021