Fargo City Commission - January 29, 2021

Agreeable with adjournment the Board of City Commissioners of the City of Fargo, North Dakota, convened in Adjourned Regular Meeting in the City Commission Chambers at the City Hall at 12 o'clock p.m., Friday, January 29, 2021.
The Commissioners present or absent were as shown following:
Present: Gehrig, Preston and Mahoney.
Absent: Piepkorn, Strand.
Mayor Mahoney presiding.

City Administrator Bruce Grubb said it was discussed at the last City Commission meeting to consider weekly legislative update meetings. He said the hearing schedule for the following week is released Friday mornings; therefore, this meeting allows the Commission to read the hearing list and have discussions before the hearings are conducted.

Assistant City Administrator Michael Redlinger said there is a master bill tracking system that includes a brief description of the bill and to what department it was assigned. He said from that master list he is able to extract the bills that will be heard in Committee the following week. The City is tracking about 160 bills during the Legislative session, he said, and the week of February 1st through 5th will be the first full week of Committee Hearings of interest and importance to the City. Of the 160 tracked bills, he said, 23 are going to be heard next week. The first bill on the list, HB 1386, is the first hearing at 9:00 a.m. Monday and the City Attorney is recommending the City of Fargo oppose that bill. The list ascends throughout the week, he said, where many of the hearings are for bills related to finance, legal issues and the Health Department. With the majority of those bills, he said, the City is recommending monitoring. The crossover date this year is February 26th, he said, then the Legislature takes a break March 1st and 2nd, after which hearings begin in the Senate. He said City staff has done a lot of work providing background and detail about the bills they are tracking. The City does not engage in every bill, he said; however, there is a lot of monitoring simply due to the fact that the City wants to be strategic and invest time in the issues that add the most value for the City and for the residents.

Mr. Grubb said of the bills scheduled for hearings this week, there is only one the City proposes submitting testimony and that is in support of HB 1431. He said the bill relates to interest rates for infrastructure, revolving loans and borrowing and lending authority of the Public Finance Authority, which is very important to the FM Diversion project.

Commissioner Gehrig said it should be affirmed as a Commission who would support sending testimony. He said he would support testimony for HB 1431.

Mayor Mahoney asked if there were any issues regarding HB 1386 due to the fact that the City Attorney advises opposition to that bill which has to do with Executive Orders issued during a declared State of Disaster or Emergency.

City Attorney Erik Johnson said he has not put in any testimony on HB 1386 and if he was, he would make the notation “TESTIMONY” in all caps. He said he has not made a decision on what to testify on going forward and has only submitted testimony on one bill, which was related to free speech.

Mayor Mahoney said bars and restaurants were shut down at the beginning of the pandemic; therefore, the sponsor of HB 1386 is trying to remove any business from the Declaration, for example, occupancy limits, and leave the decision to local officials. In light of what Fargo did during the pandemic, he said, businesses were shutting down and Fargo would have to oppose it with some testimony due to the fact that otherwise there is no impact to the City. He said typically the Governor might shut down bars and restaurants and local cities have to adopt those rules and can only be more restrictive than the Governor; a City cannot be more liberal. He said if the bill goes through, Fargo would have no control of its bars, restaurants or any businesses.

Commissioner Gehrig said he supports not giving testimony on HB 1386 due to the fact that the point is to allow subdivisions to decide what the restriction would be.

Commissioner Preston said perhaps the question is how is the decision made whether the City actually provides testimony and is that decision being made at a staff level.

Commissioner Gehrig said that is the point of this meeting. He said if the Mayor is putting forth that he wants to have testimony, the City Commission needs to say “yes.”

In response to a question from Commissioner Preston asking if Commissioner Gehrig was saying nobody testifies unless the City Commission approves it, Commissioner Gehrig said that is correct.
Commissioner Preston said changes can happen quickly and the City Commission cannot be relied on to be the decision maker on whether there is testimony. She said it is important for the City Commission to provide overriding guidance and then staff should be able to interpret where the City Commission stands if and when there are changes.

Mr. Grubb said prior to becoming City Administrator he was the Enterprise Director and was assigned bills to read and based on City policies and practices, he would recommend a position that the City Administrator was made aware of as well as the Liaison Commissioner. He said sometimes to wait for all five Commissioners to get together is difficult and each Friday, when the updated list is sent out, at a minimum the five Commissioners would be able to see the position.

Commissioner Gehrig said he is irritated by this whole conversation. He said the reason for these Friday meetings is to give an up or down vote. He does not agree with overriding guidance, he said, and there are specific bills in front of the Commission right now, one of which says the City is going to send testimony and now the City is sending two based on someone’s opinion. The Commissioners are the decision makers and the ones who need to get into the weeds, he said. The talk is about bills that directly affect Fargo residents, he said, and he is not going to have unelected bureaucrats be his mouthpiece. He said if Mayor Mahoney thinks the City should send testimony on HB 1386, he should ask the rest of the Commissioners to support that and majority rules. If the Mayor thinks it is a good idea, he said, but the other four do not and the Mayor sends someone to Bismarck to be in opposition of something, the Mayor is a dictator. The whole reason he asked for this meeting, he said, was so the Commissioners would have an up or down vote on all bills and Fargo is not being misrepresented in Bismarck. In the past, he said, he has heard “the City Commission agrees on this;” however, the City Commission never voted and who is to say on what the City Commission agreed. He said the Commission is going to look at the whole list and if a Commissioner wants testimony, they should make the motion and let us vote up or down and move on.

Commissioner Preston said her concern is the Commission is holding back staff so they cannot respond on a timely basis to something the Commission may not be able to address immediately. She said she is fine with going through the list and saying “yes” or “no;” however, she does not want the Commission to send the message that due to the fact that the Commission supports a certain bill the way it is currently written, if there are major changes to a bill, the Commission may not be able to respond in a timely manner.

Commissioner Gehrig said the Commission is made up of very available people. He said he cannot imagine a better time in history for this to occur. All Commissioners have cell phones, email and Zoom, he said.

In response to a question from Commissioner Preston asking what happens if there is not a quorum, Commissioner Gehrig said if there is no quorum, then there are no testimonies due to the fact that support was not given.

In response to a question from Mayor Mahoney asking about HB 1471, which addresses church property taxes, City Assessor Mike Splonskowki said the bill is a clean-up of the language and there are no changes that would affect the City.

In response to a question from Mayor Mahoney asking if the Health Department would oppose cigar bars (HB 1152), Commissioner Preston said it would and staff should provide testimony; however, she would leave it up to the Health Department and she relies on that expertise.

Mr. Redlinger said to clarify, on the matrix where “TESTIMONY” is not noted, staff is not requesting testimony unless it is a Commission directive. As far as next week’s hearing schedule, there is only one matter, HB 1431, where testimony was proposed. Where it is noted as “oppose,” it would simply be a monitoring activity, he said.

In response to a question from Commissioner Preston asking about opposition to HB 1446, which concerns Legacy Fund transfers on property tax, Commissioner Gehrig recommended no testimony.

Finance Director Kent Costin said he did not list whether testimony is appropriate or not, just that the Finance Department is opposed to HB 1446. He said the gist of this bill appears North Dakota is going to take Legacy Fund money and nuke property taxes. That might be great for the citizens, he said; however, it takes out Fargo’s most stable revenue source.

In response to a question from Mayor Mahoney asking if the League of Cities would oppose the bill, Mr. Costin said it will probably come up on today’s call. He said what has happened over the past sessions with legislative initiatives to lower property taxes, it has been determined they are not sustainable. The reason he listed it as being opposed, he said, is some of the City’s bonds are backed by property taxes. He said if that pledge is taken away, the City’s interest rates will be much higher. This is a growing community, he said, and the City is going to continue to issue a lot of debt; therefore, removing property taxes is not in the City’s best interest.

In response to a question from Commissioner Preston asking if the bill also decreases the cap on the mill levy, similar to what was done for the School District, Mr. Costin said he has not gone too deep into the bill; however, he was trying to make reference to what has happened in the past, most recently with the Prairie Dog fund. He said it did not even get out of the chute and it is already dead.

In response to a question from Commissioner Preston asking about HB 1342, which relates to NDPERS and if the fund does not have sufficient reserves, Mr. Costin said there have been many recent initiatives to try to improve the funding status of NDPERS. He said he does not know the exact figure; however, he thinks the funded status is in the high 70s, which means NDPERS has 70 percent of the money needed to be financially stable. There have been a variety of ways to approach the shortage, he said, and HB 1342 is probably the most he is willing to support due to the fact that it is a slow approach by raising the contribution levels systematically. He said SB 2042 immediately raises the rate by 5.12 percent for next year. That is 5 percent for all the City’s employees, he said, and is a budget killer; therefore, the City certainly would not want to support it. He said the State has not been proactive in trying to bolster the financial status of NDPERS.

Mayor Mahoney said he thinks the City has to comment due to the fact that the City did this five or six years ago by looking at the pension and funding, and then asked all employees to put in another percent and the City put in a percent to try to get to a ratio higher than 70 percent.

Mr. Costin said it helps fix it; however, it is not as robust of a strategy as the State has to put some money in and Fargo may also have to put some money in and that is where the State should look to use the Legacy Fund. He said the City supports it in this case due to the fact that at least the State is moving in the right direction. The other bill is too draconian, he said, it is too much money immediately. He said there is one other bill that has not yet surfaced on the hearing list that requires cities to fund the actuarial requirement.

Commissioner Preston said she has concerns about SB 2139, which relates to the creation of neighborhood zones and incentives. She said it may address some incentivized rehab of core neighborhoods and owners of single-family homes; however, the application of it is going to be quite narrow. She said there is a Neighborhood Zone Fund that could be established; however, she does not see or hear the incentive for single families to actually use the fund. She said what the sponsors have done is take the Renaissance Zone legislation and stick it in a neighborhood zone and it feels like a square peg in a round hole.

Planning Director Nicole Crutchfield said her department supports this bill; however, she is not providing any testimony unless directed. She said Commissioner Preston's concerns are certainly true and she thinks the intention of how Fargo could use it in benefiting some elements would be at the local level.

In response to a question from Mayor Mahoney asking if a pizza place on the north side, which has been sitting empty for a long time, would qualify if someone came in, took it down and did something else with it could get a Renaissance Zone, Ms. Crutchfield said potentially. She said Planning could set the rules at the local level as long as the rules apply and meet the legislative parameters.

Commissioner Preston said her concern is developers know it is available for a different purpose and the City would get a lot of pressure and the City has not had a good history of resisting.

Commissioner Gehrig said he had the same concerns and his first thought was how is this different than the five-year incentive given for older homes to do remodeling other than it can be for commercial.

Commissioner Preston said the Core Neighborhood Plan does call for more rehab funding; however, this is not going to be accessible to elderly individuals or those whose income level is such that they have to actually go out and borrow the money to rehab the home. She said it is a mixed bag for those who are currently residing in homes.

In response to a question from Mayor Mahoney asking if someone tore down their house and built a new single-family house, they would not pay property or income tax for five years, and if the City takes on the same rules of the Renaissance Zone, someone could tear down a house, rebuild a $200,000.00 house different from the rehab funding, the City does not tax the increased value for five years, Ms. Crutchfield said that is correct.

Commissioner Gehrig said it is interesting the rule can be set locally.

Ms. Crutchfield said for an individual who is having a difficult time financing a rehab, an income tax exemption is not going to be of any value to them.

Commissioner Preston said this will take more conversation and that is why it would be good to monitor this bill.

In response to a question from Mayor Mahoney asking what the Commissioners thoughts are on HB 1165 regarding extra-territorial electors voting in a City election, Commissioners Preston and Gehrig both said they would oppose it; however, would the City put in testimony or just oppose?

City Auditor Steve Sprague said what came to his mind when he saw this bill was “representation without taxation,” allowing people to vote on City matters when they are not citizens of the City of Fargo. He said it does not make any sense to him.

Mayor Mahoney said the City would strongly oppose HB 1165 and he would like Mr. Sprague and Mr. Johnson to draft something.

Mr. Grubb said he could find previous testimony regarding this bill to stay consistent.

Commissioner Preston said there is no testimony planned for HB 1457 and she would support opposition to it. She said it is probably important enough to provide testimony.

Mayor Mahoney said he was under the impression that typically an Emergency Declaration, unless it is designated as longer, oftentimes is revisited every 30 days. He said HB 1457 says an Emergency Declaration should be revisited every 15 days.

Mr. Johnson said current State Law provisions regarding local States of Emergency say the Mayor has the authority to declare a State of Emergency; however, it has to be approved by the City Commission within seven days and it can be extended for an indefinite period. This law, he said, would limit the City Commission's authority to extend it beyond 15 days, it would have to be every 15 days at least the City Commission would have to weigh in on whether or not to continue extending it. He said the City Commission would not be empowered under this statute to extend it for 30 or 60 days unless overall power is evoked.

Mayor Mahoney said Commissioner Gehrig is reviewing some of the data on floods versus a pandemic. He said he likes that the Commission needs to know in seven days and they have the right at that point to say they will extend it for 15 days, 30 days, 100 days or whatever. He has learned a lot during COVID-19, he said, and the City may want to modify States of Emergencies going forward. He said Fargo may have a better way of doing it with an Ordinance; therefore, he would rather not have the State tell Fargo how to do it.

Commissioner Gehrig said he agrees it should be a local control issue. He said he does not think the City should step into this one so he would be opposed to sending testimony. He said he is fine with the City’s stance and thinks the City can better figure it out locally.

Mayor Mahoney asked about HB 1323 (masks), SB 2280 (permitting reappraisal) and HB 1349 (open records and meeting laws), and Commissioners Gehrig and Preston both agreed monitoring should continue on those bills.

In response to a question from Commissioner Preston asking about Police Chief David Zibolksi’s recent testimony regarding the enhanced penalty for drug traffickers, Chief Zibolski said there was a revision crafted by the State's Attorney's Office who was involved in the initial Good Samaritan immunity language that went in a couple of sessions ago. He said everyone on this bill supports maintaining the immunity piece; however, there was some language that created confusion. He said language crafted by the same attorney involved was meant to help clarify that and was offered as a revision to the Judiciary Committee prior to testimony. His testimony also hinged support upon the revision as submitted, he said, so there is no question the language survives and the enhanced penalty for the dealer who is not the addict remains. Law enforcement is seeing a rise in overdoses and fatalities and an influx of some pretty insidious things by drug traffickers, he said, who are really just criminals and involved in criminal enterprise. He said the traffickers are distributing pills that are so sophisticated they actually have stamps on them and the unsuspecting addict thinks it is a legitimate pharmaceutical when in fact it contains fentanyl. He said through investigations, law enforcement was able to identify the traffickers and dealers and with the passage of this bill, they would be submitted as a Class A felony, like any other crime such as armed robbery where someone is killed in the course of the crime.

In response to a question from Commissioner Preston asking if the bill was amended, Chief Zibolski said the revision was made as revision number two and he submitted that to the Judiciary Committee and his testimony supported the bill with those revisions. He said in some later conversations with legislators there was support for the enhanced penalty and if it gets mucky about the sharing language, legislators may likely split the bill, add the penalty enhancer and leave the existing language.

In response to a question from Mayor Mahoney regarding the bail issue, Chief Zibolski said that issue is complicated and there has been a lot of discussion. He said is it poor people versus people of means or if the exact same crime or at least the same category of crime and someone can afford to bond themselves out, the penalty is far less than if they cannot and they have to spend three weeks in jail for a Class B misdemeanor. He said there is evidence-based research for future discussions and he wholeheartedly supports bail reform; however, this bill is not bail reform, it is actually in contrast with the evidence-based research and that is why he has a public safety concern about it. He has offered Fargo’s assistance to work with legislators, he said, to see if they can get some traction moving in that direction. He said this is an opportunity to try to chip away on bail reform and if there is some language that would be better to use, he would support it.

In response to a question from Commissioner Gehrig asking if bail reform has to be a state issue or can Fargo do things locally that would not be in conflict with state law, Chief Zibolski said one thing discussed was the variance in bail and bond schedules across the State between counties and cities and one starting point might be to make that standard across the board. The other piece and really the crux of the issue with the bill, he said, is that it is mischaracterizing crimes versus people and not all misdemeanor crimes are committed by low-risk people. He said this does not have to be the reinvention of the wheel; this is about evaluating the risk level of a person. That cannot be done by crime category and as an example, he said, a high-risk person, meaning they are likely not to appear in court or they are otherwise a threat to the community, could commit a misdemeanor crime and the way the bill is written, they could walk out the door without a second question; that is the issue from a public safety perspective. He said there has been complete agreement among local Chiefs of Police and the business community. Perhaps approaching the bail issue across the board might be one step in the right direction, he said, and then perhaps form a criminal justice council to work on other issues.

Commissioner Preston said there are also high-risk individuals who can afford the bail; therefore, it is the actual cash that does not necessarily define whether a person is high risk or not.

Chief Zibolski said a high-risk person does not get any bail; they sit until trial.

Commissioner Preston said the bill does not contemplate that aspect at all, it is just letting everyone who commits certain crimes out and that is the issue.
Commissioner Gehrig moved that the Board adjourn to 5:00 o’clock p.m., Monday, February 8, 2021.

Second by Preston. All the Commissioners present voted aye and the motion was declared carried.
The time at adjournment was 12:58 o’clock p.m.