MINUTES OF THE INFORMAL MEETING OF THE JOHNSON COUNTY BOARD OF SUPERVISORS:
JANUARY 4 AND 6, 2000
TABLE OF CONTENTS
Chairperson Stutsman called the Johnson County Board of Supervisors to order in the Johnson County Administration Building at 9:00 a.m. Members present were: Charles Duffy, Jonathan Jordahl, Mike Lehman, Sally Stutsman, and Carol Thompson.
Stutsman: I’d like to call to order the Informal Meeting of the Johnson County Board of Supervisors for Tuesday, January 4th, 2000. Review of the Formal minutes of December 30th. Those are on the Internet. Changes? If not, we’ll put those on for approval for Thursday.
executive session: HOYT/KRON SECONDARY ROADS GRIEVANCES REGARDING DISTRICT PATROL PERSON VACANCY
Stutsman: Item 3 discussion regarding the Hoyt/Kron Secondary Roads grievance regarding district patrol person vacancy. I understand there has been a request for an executive session on that. Is that correct Carol?
Peters: That’s what my understanding is.
County Attorney J. Patrick White: That’s correct. Just to give you a little bit of background. This is a grievance where 2 of the employees in Secondary Roads Department are challenging a decision by the department to fill a vacancy with another employee. The employees have filed a grievance, which is before you. The employee, as is provided in the contract and is optional with the employee, have waived their presence in person and are presenting their appeal in writing. They’ve also requested, since this is a matter involving hiring of an employee and their respective qualifications, they’ve requested an executive session and that’s an appropriate request. I recommend the Board go into executive session to consider the grievance in response to the employees’ request for an executive session.
Motion by Lehman, second by Duffy, to enter Executive Session at 9:05 a.m. to discuss collective bargaining strategy for the Secondary Roads Department under section 20.17(3), Code of Iowa: "negotiating sessions, strategy meetings of public employees… shall be exempt from the provisions of chapter 21 (Official Meetings Open to the Public)." Roll call: aye: Lehman, Jordahl, Stutsman, Thompson, Duffy.
Motion by Lehman, second by Duffy, to leave Executive Session at 9:28 a.m. Roll call: aye: Lehman, Jordahl, Stutsman, Thompson, Duffy.
Stutsman: Mike, do you want to come on up to the table? OK. Next item on the agenda. Business from the County Engineer. Discussion action needed regarding resolution of proposed procedure to waive appraisal of property with low market value. This is for use in the acquisition of additional right-of-way for construction projects.
County Engineer Mike Gardner: We were in a month ago or better and discussed this item with you at that time and since then we have got together with Ann Lahey of the County Attorney’s Office, and come up with a resolution.
Thompson: Could you move the mic so people can hear a little better?
Gardner: Pardon me?
Thompson: Move the mic around so people can hear a little better.
Gardner: Oh. OK. We’ve come up with a resolution that, and visited with some other municipalities around and we got some examples of some that they have adopted for similar reasons. Ann, Al and I got together and put this together for Johnson County to adopt. Did you get a copy of the resolution?
Stutsman: Yes. It’s included in the packet.
Gardner: OK. This, like we discussed last time, is basically how we have been handling things in the past on the more minor acquisitions, the lower value of properties that we have had to acquire. We’ve done it… Valued the property using a compensation estimate instead of a full-blown appraisal. Save you some time and money in doing that. I think Jim Graham was here that last time and he kind of explained the process. If you have any questions, why we can try to answer those.
Stutsman: Now the County Attorney’s Office has reviewed the resolution as it’s presented?
Gardner: Yes. It has.
Stutsman: I guess the questions I have is, who determines whether it’s the low market value?
Gardner: We put a $10,000 as the limit on it. So, we do an estimate on what the cost is going to be for the property.
Stutsman: So you do that?
Gardner: Well, we have someone that is knowledgeable in the land values, will get us a data book, which will have comparable sales. On the minor projects, what we may do is ask Jerry Musser, or someone, to get us some comparable sales. But, normally, we are going to have someone hired on our larger projects that’ll put the information together for us and then we can use that to put together the compensation estimates.
Lehman: What you’re hoping to accomplish here is, if you up front feel that it’s a low value, rather than hire somebody and spend more money, you hope to have some guidelines that you can draw upon and make an offer…
Gardner: Right.
Lehman: For property rather than have to hire out.
Gardner: Right.
Stutsman: Because right now, no matter what the value is of the property, it has to be appraised? Is that what’s happening?
Gardner: That’s kind of the way the language reads.
Assistant County Engineer Al Miller: If the property owner wanted to push it we would have to provide a full-blown appraisal on every parcel, no matter whether it’s a hundred dollars or whatever is, unless we pass that resolution.
Stutsman: OK.
Miller: Which is stability due to compensation estimate.
Lehman: This is an opportunity maybe to do something a little less expensive on our part. If we don’t come to an agreement, then we do have to go to step 2, which we do in the larger projects anyway.
Gardner: Right.
Lehman: They’re more expensive.
Gardner: Right. Like I said, this is the way we have been doing it in the past. But, as I understand it, with the new legislation that was passed last year, this becomes more important to have this actually adopted and in place.
Stutsman: Pat, do you have any comments?
White: No. I think the resolution is a good idea. If it doesn’t work, we’ll know. This will be a self-evaluating procedure. Because if we’re not getting contracts signed, the landowners will be telling us that it isn’t working. It’s not a significant change or what’s been happening it just formalizes it.
Stutsman: Most of these land acquisitions are under the $10,000. I was thinking that we have lots coming in for $1,500 and $500 and things.
Gardner: That’s correct. Yes.
Lehman: This one you might be getting into just driveways and stuff like that or, you’re talking $10,000 doesn’t buy a lot when you’re talking about frontage off of somebody’s yard and stuff. So, I mean, these are all... They may be involved when you’re doing a roadway. You may have these small ones interspersed between the big ones.
Gardner: Right. That’s correct.
Stutsman: Are we ready to put this on for Thursday? Jonathan, did you have a comment?
Jordahl: Yes. I want to ask about sort of an appeals process. I mean, I don’t see anything in here that says, if the landowner disagrees, then they may x, y, z.
Gardner: This would be just through the normal right-of-way negotiation process and if we get to the point where we can’t come to an agreement, then they have the option of going to condemnation with the Board.
Jordahl: I’m thinking of the acquisition of the flood plain properties that… We had a process there, pretty elaborate where, I mean, if people didn’t agree with the offer that we made to them, based on our estimate, then they could go hire an independent appraiser and that isn’t mentioned here. What happens if that person comes with an appraisal in hand?
Gardner: That’s normally just part of the regular right-of-way acquisition negotiation that goes on. I mean, if we come to them with an offer, and they say, well I’ve got an appraisal saying this, that’s more information that we can get from them that… to just continue with the negotiations. That’s how it’s normally done when we’re acquiring right-of-way.
Jordahl: I guess I would just be somewhat more comfortable with this if there were a Section 5 that said, if the property owner disagrees, they can go get an independent appraisal at their own expense and we will consider it. It just seemed like there ought to be a little bit of a doorway. It seems likes this gives a lot of power to that appraisal agent, acquisition agent, whatever, to determine the value. OK. It’s worth this. What the, I mean, short of the condemnation process. Anybody agree with that or am I alone here hanging in the wind?
Lehman: Is there a standard critique they are going to go to if all things fail here or, if after first presentation of an offer, I mean, does it automatically go into another procedure?
White: No. The procedure would be at some point Mike and Ann would make a decision, or their acquisition agent, that it isn’t going to get acquired and that we have to initiate condemnation. Which is a difference, by the way, from the floodway project, which since it’s entirely voluntary, as a matter of policy, we wanted some mechanism for trying to address differences of opinion about value. But, as a practical matter, the landowner doesn’t have anything other than their persuasive ability to collect evidence and provide it. If condemnation is necessary, then we would have to get it appraised.
Jordahl: What I’m suggesting is that this would save the County money and would avoid sort of, well, the sound even of condemnation.
White: It wouldn’t save the County money. An appeals procedure independent of condemnation would cost more than the current procedure because it would take more time. It would slow projects down. We’d spend more. It would arguably be… I mean, it is certainly permissible to do that. I wouldn’t recommend it.
Stutsman: Adding that?
White: Yes.
Stutsman: Yes. I guess…
White: I think you’d just add more time and expenses.
Jordahl: You’d rather go to condemnation?
White: Oh, absolutely. Yes.
Miller: Typically, when we can’t agree, like in the situation you’re talking about, if we presented a compensation estimate to somebody, they said hey, we just had our property appraised, this is what it came in at. We always, in the past and as far as I can see always will, accept a counter offer from them, evaluate that, and present that to you with our opinions on it. I think that is kind of what you are talking about. We do what you are talking about and as a part of the negotiations I don’t really feel there’s a need to.
Jordahl: That’s what I’m suggesting. I’m not suggesting an appeals process. I’m suggesting that they…
Miller: That’s what happens and it’s different than what we’re asking for.
Stutsman: Yes. I think this is just giving us…
Miller: All this is saying…
Stutsman: The authority to go to waive that.
Miller: All this is saying is if it’s a small parcel or uncomplicated parcel that we can do a compensation estimate instead of doing a full-blown appraisal.
Stutsman: I think we just kind of complicate it when we start talking about the appeal process and all that and not to deny that. That’s definitely part of the process, but I don’t know if it needs to be a part of this resolution.
Lehman: We’re not altering that part of the steps on down the line. We’re just doing the up front part.
Miller: Some of you that have been here awhile, you know we bring in counter offers from time to time. I think that’s… Kind of would act as an appeal and need to bring it in to you with our opinions and give you the chance to talk about it.
White: But, it’s also true that there would be no reason we couldn’t put one more phrase in that would say specifically that property owner is welcome to submit other evidence of value. Something like that. Give some thought to what it would be.
Jordahl: Well, it’s… Yes, I guess it’s...
White: It wouldn’t do any damage to the…
Thompson: What about, doesn’t this imply that in the, in the 2nd page the section 3, the middle paragraph, where it says that the person may give the landowner an opportunity to participate in the preparation?
Jordahl: Yes. What does it mean? What does verifiable cost to cure information mean in English?
White: I don’t have my copy with me.
Stutsman: This resolution is from Story County? Is that correct, Mike?
Gardner: I believe it was the City of Ames, actually.
Stutsman: OK.
Gardner: And we’ve also looked at one from the City of Des Moines. She had 3 or 4 different ones that we looked at, but it was mainly the one from the City of Ames that we used as the backbone for what we were…
Duffy: Are there any counties though, Mike, or are we going to do what the cities do?
Gardner: I would imagine there are also counties doing this. This was a recommendation of Jim Graham, and I know he works with a lot of different counties.
Stutsman: Well, what’s the Board want to do? Do we want to work on adding another sentence or do we want to accept this as it is or make some other changes?
Lehman: What’s your time restraints here? Do you got some projects this one might apply to? Want to get things…
Stutsman: You’re saying yes. OK.
Lehman: Would a week make a difference? I mean, if (inaudible) if we looked at again next week, or you got some irons in the fire, you don’t want to tip your hand or what?
Gardner: There’s a possibility that it could have some impact, yes, if we put it off.
Jordahl: Well, what I want to…
Stutsman: I guess for one I’m comfortable the way it is. I guess I agree with Carol. I think that that 3rd paragraph in section 3 covers somebody encouraging somebody to come in with their own estimate or without going to another.
Jordahl: Let me suggest some language and maybe Pat can respond to this. After cost to cure information, we can just put down, such as an independent appraisal at the landowner’s expense.
Duffy: At the landowner’s expense? I don’t think so.
Jordahl: How about just such as an independent appraisal? Because it, to me, I mean…
Stutsman: Well, the first question is going…
Jordahl: This is what it costs to cure information means and I haven’t yet got an answer, so I assume it’s somewhat unclear to him. If it’s unclear to him, then it’s unclear to me.
White: No. I just… There hasn’t been an opportunity for me to…
Jordahl: No word in edgewise?
White: A cost to cure means a project is creating damage. If you’re raising the elevation or changing the curveage or somehow doing something which impacts the existing property, creating a measurable damage, one of the things you’d always look at is, how do you, another word would be how do you mitigate the damage? How do you avoid it or reduce it? And cost to cure is appraiser’s language for trying to minimize damages.
Jordahl: OK. So, this is more like you’re going to knock down my old windmill and I want to keep it, than it is talking about appraisal. I’m suggesting we use the word appraisal in here somewhere to indicate that we will certainly consider that if they go get one. Because, it sounds that this whole article here seems to be focused on giving the County the power to state what the value is.
White: It’s power only in its ability to persuade the landowner.
Stutsman: Yes and it’s not like we’re going to say your land is really only worth $100 when work at the Assessor said it’s worth $500. You make it sound like we’re trying to not be fair with landowners and I don’t think that’s ever been intention.
Jordahl: Well, no, it says just in here. I’m assuming that the amount of just compensation, it were going to continue to be fair, I’m just suggesting that…
Stutsman: Well, come up with some wording then Jonathan.
Jordahl: Well, I did. Verifiable cost to cure information such as independent appraisal.
Stutsman: Are we comfortable with that including that?
White: No.
Stutsman: OK.
White: That doesn’t make sense. It doesn’t… Those phrases don’t fit together.
Jordahl: All right. Including independent appraisal or an independent appraisal.
Stutsman: Are there… Let’s take a straw poll. Are there 3 Supervisors interested in adding that kind of language and if so, let’s refer it to… How do you feel about it, Mike?
Lehman: I’m content the way it reads now. Condemnation, there’s still negotiations going through condemnation. I mean, it’s not a cut, dried to the end.
Stutsman: Charlie, do you have any thoughts on it?
Duffy: Well, I’m not ready to vote yet.
Stutsman: No, I just want a straw pull on if we should…
Duffy: Whose baby is this? Is this the County Roads Department? Mike and Al or were there some other people involved in this? Supervisors?
Gardner: No. We worked with Ann. We worked with Ann. After the meeting we came here.
Duffy: But, I mean, how come it was changed? Part of Prairie Du Chien Road we thought it was supposed to…
White: No that… Charlie, the legislature passed a bill that requires some procedure like this, and Jim Graham, who the department has used as its acquisition agent, recommends this particular version of it.
Duffy: Oh, when was it passed?
White: Last year.
Duffy: Last year. How come all of a sudden he…
Gardner: It actually took effect July 1st I believe and so this is the 1st set of right-of-way parcels that we are trying to acquire now since the legislation.
Stutsman: So.
White: We could certainly bring Jim back if you wanted.
Miller: My opinion of this is if we don’t have something like this passed, we may be stuck with paying for $2,500, $3,000 appraisal on parcels worth $100. Where there’s not a whole lot of confusion on what it may be worth.
Jordahl: But, if we have language in there that offers the landowner an opportunity to get their own appraisal, then the onus is to get the appraisals off of us, isn’t it?
Miller: They always have had that opportunity and they still will.
Gardner: All this is saying is that we’re going to, on the smaller acquisitions, we’re going to use a compensation estimate instead of an appraisal to come up with a value.
Stutsman: In other words, we’re trying to save the County some money when, at the 1st step and…
Miller: What Jim was saying that day was the compensation estimates are actually based on the same things that the appraisals are based on. Only, it’s just kind of a backwards way of getting to it.
Jordahl: You know, I really like the language you used there. If the thing just said that, I’d be happy with it. On the smaller acquisition we’re just going to use an estimate instead of an appraisal.
Thompson: I’d be willing to vote on it the way it is.
Stutsman: I guess I would, too. I think that’s 3 Board Members that are comfortable with it the way it is. So, I would suggest that we put it on for Thursday as is and we’ll go from there. Any other thoughts or comments? OK. Mike. Next item on the agenda, discussion/action needed regarding bid letting for seed and fertilizer to be purchased in 2000.
Gardner: Chris Henze has been putting together a list of our needs for next summer’s projects and so forth with seed and fertilizer, and we’ll be going through the bid process again here coming up before too long. The reason I put this on was, there was some discussion last year. The way we had set it up was that we would take the low bid, and once the bids came in the low bidder was not a local supplier and there was some question as to whether we wanted to change the criteria for making the award. In the discussion that followed I wasn’t clear that there was ever a decision made. My recollection was that there was not anything decided. I’m just coming to you for some direction on how you want to handle it this year so we can avoid any problems down the road.
Stutsman: I appreciate you doing that, Mike, because there was some confusion on that. It is up to the Board. Do we want low bid to be our only criteria, or do we want to have that be one of the things that we evaluate in the bidding process? Then to be forthcoming to the people that are submitting bids that this is what we are going to evaluate these bids on. That it’s just not based on the low bid, but give consideration to a local vendor and things.
Jordahl: As I recall there was sort of a problem that there weren’t enough local bidders maybe to make it truly competitive, and that if we stated an absolute preference for local bidders that would inflate the price we had to pay. Where if we had that as one of the considerations rather than the sole or primary consideration, then we would get a more competitive price and we would still be able to take a lower price that was from out of county if we didn’t get one that was acceptable from a bidder within the County. It wasn’t clarified in the sense of an absolute standard. But I think we wanted to include consideration, of not preference, of a local bidder and that’s maybe why it remains unclear is that I think it was presented to us that if we did have that absolute preference we would wind up spending too much money.
Thompson: What are we doing here? We’re devising language for the bid process that says the criteria we’re going to use to judge?
Lehman: You have criteria and specifications as far as machinery, seed. We’re basically talking dollars here. Consideration is going to be a 5% advantage to the local? Is that the type of thing we’re going to be looking at here?
Stutsman: Last year didn’t you say in the bid letter that it would be awarded to the lowest bidder, and that was the end of the discussion.
Gardner: Yes, and that basically was the standard contract that we use similar to the stuff that we get from the DOT for our contracts.
Stutsman: What Mike is asking us now is do we want that to be just one of our criteria, so when he writes the letter, that he specifies that consideration will be given to the cost, plus being a local vendor, and a set of criteria instead of just one element.
Jordahl: For example, if you had one bid that was $5 more from a local vendor, could you say, well, it’s a local vendor, it’s not much of a difference.
Thompson: It was basically the situation we had last year, remember…
Lehman: Do we have to spell that criteria out ahead of time, I guess is my question.
Gardner: Yes.
Stutsman: Yes.
Lehman: A percentage, or dollar or flat fee or something.
Jordahl: So within 10%.
White: You can do it any way you want.
Stutsman: Can we just say that it would be evaluated on a set of criteria, cost, location of the vendor? What could you say, Pat?
White: I think you can say almost anything you want. The policy questions include do you want to give some local preference. One of the things that complicates this a little bit, Sally, is your conflict.
Stutsman: Should I not be talking about this at all?
White: Well, at this point you’re OK. They used to do this by informal proposals. The reasons for going to public, sealed bids is to give Stutsman’s a chance to compete. If you move even an inch off of low bid, publicly bid, sealed, Stutsman’s won’t be able to bid on this because of Sally’s conflict.
Jordahl: So as soon as it becomes to any degree subjective.
White: Anything other that low bid, any subjectivity, will preclude Stutsman’s from competing for this. They would be precluded now unless we advertise sealed bids and take the low bid.
Thompson: So even if we added a sentence that said preference would be given to a local bidder, that would…
White: The Department’s decision to do this by bids was to try to allow a local company to continue to compete. I should add that Sally’s conflict is relatively minor, but under the statute it’s still preclusive without the…
Stutsman: Not to give the impression that I’m just arguing for Stutsman. There was another local vendor that was actually even lower than Stutsman’s. A little bit higher than who awarded, so it wasn’t just my interest.
White: This skips way ahead and you didn’t actually ask me for this. My recommendation is do it the way they did it last year because that maximizes the opportunity for local participation.
Jordahl: Isn’t that odd?
Stutsman: That is interesting.
White: It is odd, but it’s the fact in the particular situation that we’re in. Last year it didn’t happen that the local companies came in with the low bid.
Stutsman: So this means that whoever produces the lowest bid we’re going to have to take it.
White: If they comply with the specifications, which is always a question.
Thompson: Did you have any trouble with that last year?
Gardner: No. We tested the seed that they supplied and the fertilizer and it met the specs that we had written in.
Jordahl: There’s a separate question here really of preference in purchasing generally versus this specific bid because of Stutsman’s competition. I wouldn’t like to have the County’s policy as a whole determined by this particular situation. I think the discussion was valuable that we had the last time about we would like to have some degree of local preference, the ability to prefer a local vendor if there wasn’t much difference, but in this case it creates a problem. But if Rick wanted to go out and buy something and there was no conflict on the Board, I would like to be able to say to Rick, well yes, let’s go with the local guy or the local company. So, I hope that in making a decision now about this bidding process we are not at the same time making a County purchasing policy decision.
Stutsman: That’s a good point.
White: No, you’re certainly not doing that. Mike talked to me about this a couple of weeks ago. I actually encouraged him just to put it on the agenda and say well, since they asked you about it last year, and at that point it was really too late, my advice is put it on before you do anything. If they want to change the approach they certainly are free to. One of the things that you will, I think, recall that we got into in discussing that, I’m a long advocate of some sort of local bidders preference, but the marketplace has gotten increasingly difficult to define who’s local and who’s not. To put in context other than seed, is Wal-Mart local? Is Staples local? Are they more local than Frohwein’s or vice-versa? I don’t know.
Lehman: How do you set a criteria for that?
White: Right.
Stutsman: OK, so it sounds like the Board is comfortable to continue with what the wording that was put in last year. Is that what I’m sensing?
Duffy: Do you look and see when the seed was harvested so you don’t get any old seed, 2 or 3 years old? That’s the main thing. If you get fresh seed, it’s going to grow better.
Gardner: Yes, we actually tested it for germination. We had a germination spec in there. I’m not all up on the, percent live seed and germination and purity, those were some of the things that we actually took samples from the seed that we got and ran tests on it over in Ames. We sent the samples in.
Duffy: You did it yourself. Usually there’s a tag on the seed that says the same thing, but I was just wondering when that tag was put on there.
Gardner: Yes, those are checked.
Stutsman: So, Charlie, are you OK with the way we did it last year? Carol? Jonathan?
Duffy: Yes.
Jordahl: Yes.
Stutsman: Mike? OK, we’ll just go ahead and proceed with the way it was last year. We don’t need an action on that for Thursday?
Gardner: No, I’ll be in in the future with the actual stuff so we can set a date for the bid and so forth.
White: I might add that we would, I think, all be very pleased if the low bidder was a local company.
Duffy: I agree with that, Pat.
Stutsman: I just think of those property tax dollars.
Stutsman: OK, request for a short break, so why don’t we come back at 10:00?
Recessed at 9:55 a.m.; reconvened at 10:02 a.m.