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Zumbrota, MN 

Bridging the Past and the Future

August 19, 2004 Council Minutes

                         CITY OF ZUMBROTA CITY COUNCIL MINUTES

REGULAR MEETING      AUGUST 19, 2004   6:00 P.M.           TOWN HALL

 

Pursuant to due call and notice thereof, Mayor Rich Bauer called the Zumbrota City Council to order at 6:00 p.m.  PRESENT:  Mayor Bauer;  Councilmembers Dave Benson, Doug Borgschatz, Betty Jo Grothe, Deb Wilkinson.  Others present:  City Administrator Ron Johnson, City Accountant Mary Rohe, City Attorney Matt Rockne, Police Chief Gary Selness, Police Officer Warner Collette, Robert Fowler, Police Officer Eugene Leifeld, Police Officer William Mathews, Police Officer Jason Amundson, Police Officer Gary Schroeder, Nancy Collette, Evelyn Hoover, Reporter Sandy Hadler, Paul Qualy.

 

The meeting opened with the Pledge of Allegiance.

 

AMENDMENTS/ADOPTION OF AGENDA

 

It was suggested to modify agenda item 8d- and delete the word “closed”, and suggested to add agenda item 8e- Door replacement project at the WWTF, and item 8f- Kevin Kish request.

            Motion Benson, second Wilkinson to adopt the agenda as amended.  Carried 5‑0‑0.

          

MINUTES

 

Motion Grothe, second Borgschatz to approve the August 4, 2004 regular meeting minutes.  Carried 5-0-0.

 

ACCOUNTS PAYABLE

 

Motion Borgschatz, second Grothe to approve the accounts payable of $78,017.28.  Carried 5‑0‑0.

 

PUBLIC COMMENTS

 

1.  Paul Qualy presented several comments related to the Fairview Red Wing Health Services request for tax increment financing.

 

PUBLIC HEARINGS/MEETINGS

 

1.  There was nothing to report under this agenda item.

 

UNFINISHED BUSINESS

 

1.  There was nothing to report on the 5th Street West/Jefferson Drive Storm Water Study.

 

2.  There was nothing to report on the St. Paul Road Public Improvements Project.    

 

3.  There was nothing to report on the 2005 budget.

 

 

 

NEW BUSINESS

 

1.  Several bids were received for the 1994 Chevrolet Caprice squad car, with the highest bid received being $2,500.  Administrator Johnson recommended, as the high bid was somewhat lower than anticipated, that Council reject all bids and keep the squad, at least on a one-year trial basis, for staff use.   

Motion Benson, second Grothe to reject all bids received for the  1994 Chevrolet Caprice squad car, and keep the vehicle, at least on a one-year trial basis, for staff use.  Carried

5-0-0.

 

2.  Police Chief Gary Selness requested that Council adopt Resolution 2004-20, a Resolution Authorizing Execution of a Grant Agreement with the MN Department of Public Safety, Office of Traffic Safety, for the project entitled SAFE & SOBER COMMUNITIES during the period from October 1, 2004 through September 30, 2005.

Motion Wilkinson, second Grothe to adopt RESOLUTION 2004-20, a Resolution Authorizing Execution of a Grant Agreement with the MN Department of Public Safety, Office of Traffic Safety, for the project entitled SAFE & SOBER COMMUNITIES during the period from October 1, 2004 through September 30, 2005.  Carried 5-0-0.

 

Mayor Bauer presented a resolution related to the Goodhue County Comprehensive Plan Update that he prepared, with some assistance from Administrator Johnson.  Goodhue County requested that comments be submitted by August 20.  Most of the comments related to the lack of discouragement, within the plan, of rural multiple housing developments (Goals 3 and 4 in the Plan) being allowed within city growth zones.  The cities of Red Wing, Cannon Falls, Pine Island and Kenyon all submitted comments to Goodhue County, mostly objecting to the apparent allowance of rural multiple housing developments in Goals 3 and 4.

Motion Benson, second Grothe to adopt RESOLUTION 2004-21, a Resolution Commenting on the Goodhue County Comprehensive Plan Update Proposal.  Carried

5-0-0.

 

4.  Public Works Director Rick Lohmann received two quotes for the replacement of four sets of double doors at the WWTF, with the low quote of $6,925 being submitted by Red Wing Glass. 

Motion Benson, second Borgschatz to accept the quote of Red Wing Glass for the replacement of four sets of double doors at the WWTF at the cost of $6,925 (plus sales tax).  Carried 5-0-0.

 

5.  Kevin Kish submitted a letter of request to obtain some items in the old United Church prior to its demolition to be utilized in the Zumbrota Area Historical Society building.  City Attorney Rockne was asked to review the city’s legal ability to accomodate Mr. Kish’s request, and report back to Council at the next regular meeting.

 

REPORTS

 

-Councilmember Dave Benson-

-Informed Council that he has had requests for the installation of “Noise Ordinance Enforced” signage to assist in minimizing the noise caused by the braking of semi-trucks.  Staff will discuss the request with MN/DOT and Goodhue County and proceed with the proper placement of said signs.  This will coincide with the adoption of the new city code.

 

-Councilmember Doug Borgschatz-

-Complimented the Zumbrota Area Ambulance Service related to a recent ambulance call Mr. Borgschatz observed.

 

NEW BUSINESS (Continued)

 

6.  The City Council intended to close the meeting to discuss this agenda item.  However, the affected employee requested that the Council keep the meeting open for discussion of the item.  Police Chief Selness presented a memo to Council related to a misconduct complaint filed against Police Officer Warner Collette from an incident on June 24, 2004.  The incident was investigated by the Goodhue County Sheriff’s Department to avoid a potential conflict of interest. All parties were interviewed.  Chief Selness forwarded his recommendations on the 9 allegations to City Attorney Rockne, and, upon Mr. Rockne’s review, provided the following findings of fact and recommendations of Allegations 1 through 9:

 

1.                  At the time Officer Collette stopped the vehicle which the complainant was driving, there were two other passengers in the vehicle.  Officer Collette’s report makes no mention of the other passengers.

Finding: The investigation revealed that two other persons were in the complainant’s vehicle at the time of the stop. A complete arrest report should have all pertain information on witnesses and statements to an incident. Officer Collette failed to report this important information. Also, other pertinent information not put in the report was the complainant’s footwear during the field sobriety tests, condition and slope of the sidewalk where the field sobriety tests were conducted, how many times the PBT was used at the stop scene, and other officers at the scene. SUSTAINED.

 

2.                  At the time of the complainant’s arrest, Officer Collette placed handcuffs on The complainant which were unnecessarily tight and restrictive.

Finding: Handcuffs are placed on an arrested person for misdemeanor and above violations. Handcuffs are used to restrain an arrested person and for officer safety. Officers are trained to properly place handcuffs on an arrested person by checking for proper tightness and double locking them. Persons placed in a squad with handcuffs behind them can have some uncomfortable results. The complainant’s hands were handcuffed behind her when she was placed in the uncaged squad. She was then seat belted in the vehicle. This uncaged squad did not have a transport belt in it, which is an alternative to placing the handcuffs in front of the person instead of behind them. The complainant did not show signs of injury during her interview with Investigator Badker on July 1, 2004.  There is insufficient evidence to support this allegation. UNFOUNDED.

 

3.                  Officer Collette placed the complainant alone in a dark restroom with no lighting for a prolonged period of time, in order to conduct an eye test. 

Finding:   The complainant was escorted into a dark restroom by Officer Collette to do an eye test, pertinent to a drug evaluation. The time and conversation had been audio taped by Officer Collette. The two were in the restroom for approximately six minutes according to the tape. Officer Collette stated that the lights needed to be off for 90 seconds prior to the test. Then both eyes are tested in near total darkness. Once that is completed, each eye is checked with direct light for 15 seconds with a pen light. Once that is completed, a check of the nasal and oral areas is conducted. The lights are then turned on and the two left the restroom. The approximate six minutes to perform the above tests did not appear to be a prolonged period of time so as to constitute any violation of police department standards of conduct. UNFOUNDED.

 

4.                  When in the dark restroom with The complainant, Officer Collette stepped on The complainant’s foot, and fell into her, hitting her upper chest.  There were no other persons present when Officer Collette and The complainant were in the restroom together for the eye test.

Finding: The complainant was escorted into a dark restroom by Officer Collette to do an eye test, pertinent to a drug evaluation. The conversation had been audio taped by Officer Collette. A review of the tape while in the restroom did not reveal any conversation between the complainant and Officer Collette with Officer Collette stating woops, sorry, or something like that as the complainant had stated in her statement, when he allegedly bumped into her. However, prior to the going into the restroom, in the lighted conference room, Officer Collette had stated “sorry” to The complainant during the temperature check. No reply was heard from the complainant. There is a lack of evidence to sustain this allegation.  UNFOUNDED.

5.                  Officer Collette detained The complainant at the Zumbrota Police Station for an unnecessarily prolonged period of time, being approximately 1.5 to 2 hours.

Finding: Once at the police department, Officer Collette detained the complainant for 1 hour and forty-three minutes. Based on the number of tests performed, reading of the Miranda Warning, two readings of the Mn. Implied Consent, attempt to contact an attorney and talking to an attorney, and the Intoxilyzer test, the time period does not appear to be a prolonged period of time.  However, it is the conclusion of this officer that there was insufficient cause to require The complainant to submit to the Intoxilyzer test based upon the low reading of the PBT.  Nonetheless, the Intoxilyzer test would not have taken a considerable amount of time.  UNFOUNDED.

 

6.                  Officer Collette was rude and intimidating to the complainant.  The complainant felt extremely uncomfortable and frightened when alone with Officer Collette at the Police Station.

Finding:  The audiotape of the testing performed at the police station does not suggest that Officer Collette raised his voice or spoke to The complainant in an intimidating fashion.  Nonetheless, it is questionable whether the facts alleged in Officer Collette’s police report supports the detention and testing of the complainant at the police station.  The prosecutor has recommended that the complainant not be charged with any impaired driving offenses based upon lack of probable cause.  It would appear that Officer Collette may have been “prospecting” in contravention of the previous admonishments issued by the City Council to the police department.  Therefore, this behavior can be considered intimidating towards the person detained by the officer.  SUSTAINED.

 

7.                  Officer Collette stares at the complainant’s husband when Officer Collette drives by the Sparr residence in Zumbrota.

Finding: Officer Collette lives at 980 South Main Street and the complainant lives 2 houses away.  They both live on the West side of Main Street. There is one house in-between the two of them. Officer Collette stated that his house has been paintballed, egged, and had fireworks thrown at it. He stated that he looks at his house when he approaches it to see if anything has been done to it. The complainant’s husband stated in his interview that when Officer Collette looks at him, he just gives him a dirty look, like he’s mad, mad looks. The complainant’s husband also stated that but you can read anything into that.  There is a lack of concrete evidence to support this allegation. UNFOUNDED.

 

8.                  Officer Collette previously swore at The complainant’s husband over the telephone.

Finding: There were no findings in the complainant’s husband’s statement that Officer Collette had swore or even talked to The complainant’s husband. UNFOUNDED.

 

9.                  After the arrest of the complainant on June 24, 2004, Officer Collette stated to The complainant’s husband, “you’re next.” (NOTE: date should be corrected to be June 19, 2004.)

Finding: The complainant’s husband stated in his interview that he had talked to someone from the Zumbrota Police Department over the telephone on either Monday (June 21, 2004) or Tuesday (June 22, 2004) during the day. He stated that he had called to the police department from work and left a message for Officer Collette to call him. He stated that he received a call back from someone, allegedly from the police department. They only identified themselves as the Zumbrota Police Department. He stated that he was attempting to get a copy of the report for his wife. He stated the person questioned why he could get a copy of the police report for his wife. The complainant’s husband stated that he started to tell him off on what he thought about the situation and heard the person reply to him something like you can be next or something like that, and then hung up. He stated that it sounded something like that. The complainant’s husband stated that he has told some people about the incident and isn’t sure if someone is messing with him or not. The complainant’s husband further stated that he hasn’t ever talked to Officer Collette.  Due to lack of concrete evidence, this allegation cannot be sustained.  UNFOUNDED.

 

RECOMMENDATIONS:

 

It is the recommendation that Officer Collette be issued a written reprimand in his employee file based on the sustained Allegation #1.

 

On February 28, 2004, the Zumbrota City Council held a special meeting to discuss complaints that they have received about the police department. It was emphasized at that meeting that no prospecting would be tolerated otherwise further action would be taken by them.  On March 17, 2004, a police department meeting was held with all members of the department present. Mayor Bauer and Councilmember Borgschatz emphasized to all members what had been discussed at the February 28 meeting and if needed, step 2 would be implemented. 

 

Chief Selness recommended that allegation number 6 be referred to the Zumbrota City Council for further action.

 

The following are comments related to discussion of said matter:

-Robert Fowler, legal representative of Officer Collette, stated that public safety should be the police department’s main goal, and that Officer Collette removed an impaired driver from the road.

            -It was noted that there was no determination made that the driver was impaired.

            -Mr. Fowler commented that “prospecting” usually applies in racial profiling.

            -Mr. Fowler stated that it, in his opinion, it is better to err on the side of suspicion.

-It was noted that Officer Collette was driving the 1994 Chevrolet car that has no lights and sirens and no videotaping capabilities.

            -The audio recording began when the officer and the complainant arrived at city hall.

            -Questions were asked related to the search of the vehicle and purses within the vehicle.

-It was stated that in St. Anthony Village (the city’s LMC Walk-a-Mile partner) that their City Council encourages officers to stop perceived violators at all times.

-The prosecuting attorney’s opinion was discussed in which he stated that the evidence does not show a violation of DWI (Under the Influence of Alcohol or Operating with over .10 Alcohol Concentration), and, he sees insufficient evidence of driving under the influence of marijuana or or a combination of marijuana and alcohol to carry either a probable cause standard of proof or a beyond a reasonable doubt standard of proof .  Further, in his opinion, Officer Collette did not have evidence to require the complainant to take a breath test other than a PBT.  After the PBT showed a reading of .037, there was no evidence that probably a controlled substance was also involved so that a chemical test (urine) can be required.  He advised to issue a citation charging with a Failure to Stop for a Stop Sign.

 

Motion Benson, second Grothe to determine Allegation #1 as Sustained, as Officer Collette should have reported passengers and other pertinent information in his report.  Carried 5-0-0.

 

Motion Wilkinson, second Borgschatz to determine Allegation #2 as Unfounded.  Carried 5-0-0.

 

Motion Wilkinson, second Bauer to determine Allegation #3 as Unfounded.  Carried

3-2-0 (Benson, Borgschatz opposed).

 

Motion Borgschatz, second Grothe to determine Allegation #4 as Unfounded.  Carried

5-0-0.

 

Motion Wilkinson, second Grothe to determine Allegation #5 as Unfounded.  Carried

3-1-1 (Borgschatz opposed, Benson abstained).

 

Motion Benson, second Borgschatz to determine Allegation #6 as Sustained.  Carried

4-0-1 (Wilkinson abstained).

 

Motion Wilkinson, second Borgschatz to determine Allegation #7 as Unfounded.  Carried 5-0-0.

 

Motion Grothe, second Benson to determine Allegation #8 as Unfounded.  Carried 5-0-0.

 

Motion Borgschatz, second Grothe to determine Allegation #9 as Unfounded.  Carried

5-0-0.

 

It was then necessary to determine the action related to the two Sustained allegations.

 

Councilmember Wilkinson moved to direct that an oral reprimand be given to Officer Collette for the Sustained finding for Allegation #1.  No second to the motion was received.

 

Motion Benson, second Grothe to place a written reprimand in Officer Warner Collette’s employee file as a result of the Sustained finding of Allegation #1.  Carried 5-0-0.

 

Motion Bauer, second Borgschatz to place a written reprimand in Officer Warner Collette’s employee file as a result of the Sustained finding of Allegation #6.  Carried

4-0-1 (Wilkinson abstained). 

 

UNFINISHED BUSINESS

 

4.  The Council would go into a closed session to discuss the Lance and Sharon Isenberg litigation upon adjournment of this meeting. 

 

ADJOURNMENT

 

Mayor Bauer adjourned the meeting at 8:10 p.m. 

 

 

                                                                                    ______________________________

                                                                                    Ronald S. Johnson, City Administrator

 

City of Zumbrota; 175 West Avenue; Zumbrota, MN 55992