Council passes code amendment ordinance over public objection

Rec center plan moves forward

Posted: Friday, September 05, 2003

The Kenai City Council took another step toward reopening the Kenai Recreation Center during its meeting Wednesday, over the objection that it is moving too fast.

The council voted five to two in favor of approving an ordinance that amends the city's code to include a definition of "professional services."

This is the first step in the council's three-step plan to reopen the center. Once the ordinance takes effect 30 days after its passage, the council plans to have the city's administration issue a request for qualifications from organizations interested in managing the rec center under a contract with the city.

The council will then review those qualifications and choose one organization to contract with. At that point the council plans to reopen the center.

The center has been closed since July 10, after the Friends of the Kenai Recreation Center group sued the city over it issuing a management contract for the center to the Boys and Girls Clubs of the Kenai Peninsula without putting it out to a competitive bid first.

The city had decided to contract out the management of the center in an attempt to save money in its deficit budget.

According to its code, the city doesn't have to use a competitive bidding process for contracting out professional services. The city argued that it considered facility management to be a professional service so it didn't need to do a competitive bid.

Judge Harold Brown disagreed, since the city's code does not specifically define facility management as a professional service. He issued a preliminary injunction barring the city from continuing its partnership agreement with the club. At that point, the city closed the center's doors.

By passing an ordinance that specifically includes facilities management in its definition of professional services, the city hopes it has solved its problem.

The text of the ordinance calls for amending the Kenai Municipal Code "to better describe and clarify the meaning of 'contractual services of a professional nature'" and adds this definition to the code: "those advisory, consulting, architectural, management, engineering, research or development services that involve the exercise of discretion and independent judgment together with an advanced or specialized knowledge, expertise or training gained by formal studies or experience" and a list of examples of those services.

The Friends group charges that the city is opening itself up for more problems with this ordinance and is not taking enough time to address those potential problems.

Robert Molloy, a Kenai attorney, submitted a written objection to the ordinance on behalf of the Friends group.

In it, Molloy stated that the city needs to revise and update its entire purchasing code.

"We do object to the city's 'three-step plan' and the speed with which it is being implemented, because there is inadequate time for addressing all of the issues that arise when the city greatly expands the definition of 'professional services' without also providing any protections in the city's purchasing code against insider dealing, and there is lack of adequate time for informed public comment," he wrote.

He suggested the city temporarily rehire former city rec center employees to run the center while the purchasing code is revised.

The council did not take his suggestion.

"My first thought is it would take a long time," said Kenai Mayor John Williams in response to Molloy's comments. "... If the delays continue it will merely delay the continued work of this council in reopening the rec center."

He rejected the idea of temporarily rehiring former rec center employees because there is no funding mechanism in place to do that and it would take additional time to create one, he said.

Molloy had specific objections to the ordinance, as well. In his letter he complained that the definition of professional services is too broad and allows for sole source contracts and that the code amendment doesn't include any requirements or procedures for proposals, competitive proposals or any limitations on sole source procurement.

"This leaves the city wide open to the problems of insider dealings by special interests," he wrote.

In a memo to council members, City Attorney Cary Graves told them they could choose to adopt a professional services ordinance that includes a more detailed request for proposal process but that would decrease the flexibility the council has in the selection process.

"While a more formal process can have its advantages, there are drawbacks such as the loss of flexibility," he wrote. "The ordinance as introduced would allow the city to engage in a more formal request for proposal process if needed or a less formal and quicker process if needed. It would allow the city to structure the process to fit the particular project."

Williams was in favor of the ordinance as proposed, which didn't limit the council's flexibility.

"(The city charter) intended to give this council extreme powers and discretion to run this city," he said.

Council members Jim Bookey, Linda Swarner, Joe Moore and Pat Porter also voted in favor of the ordinance as proposed. Most commented that they were voting in favor of it in order to get the rec center open.

"I know it's probably not the best ordinance in the world, but I think it's the ordinance we need to move forward with tonight to get the rec center opened," Bookey said.

"... I don't think there's an ordinance on our books that can't be challenged. I would not support this ordinance if I didn't think it was a good one."

Council members Amy Jackman and John "Ozzie" Osborne voted against the ordinance.

"I think there are flaws and I do think they could be problems for future councils," Jackman said. "I am in favor of opening the rec center but I can't support this the way it is written."

In other action Wednesday, the council:

n Voted unanimously to accept a $990,194 grant from the Federal Aviation Administration and a $33,006 state matching grant that will pay for ADA accessibility modifications at the airport and an ADA passenger lift device. The city is contributing $33,007 from its airport land system special revenue fund to the project.

n Voted unanimously to pass a resolution supporting the Kenai River Watershed Forum's water quality monitoring program.

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