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HomeMy WebLinkAbout00 - Written CommentsRECEIVED AFTER AGENDA PRINTED JANUARY 24, 2017 January 24, 2017, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher (iimmosher(d-)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the January 10, 2017 City Council Meeting The page numbers below refer to Volume 63. The passages in italics are from the draft minutes with suggested corrections shown in strikeout underline format. Page 165: Item II (Public Comments): "Jim Mosher reminded the Council that it was allowed, but not required, to discuss closed session items in public and requested the Council consider additional openness." [without the missing phrase, the comment makes little sense] Page 165: last sentence: "Council Member O'Neill requested timl a future agenda item for the Mayor to create a subcommittee to comply with City Council Policy D-3. The City Council concurred." [As written, the minutes appear to say that at the January 10 meeting the Council empowered the Mayor to create the committee. The action was actually only to place the creation of a committee on a future agenda for discussion.] Page 168: Item XVI (Public Comments on Non -Agenda Items), paragraph 1, last sentence: "He further discussed the unusual nature of the agenda with only have Consent Calendar items and the newness of the City Council." Item 4. Dissolution of the General Plan/Local Coastal Plan Implementation Committee Since completion of the Local Coastal Program Implementation plan was only one of the many reasons for forming the committee, the resolution would be more informative if it listed when the each of the other objectives was completed, rather than after mentioning completion of the LCP- IP simply saying (as it does) "the Committee has successfully completed all of its assignments." It's less relevant to explaining why the committee's work is now regarded as complete, but having cited the original enabling act that created the committee, the resolution might have mentioned the original action was later amended by Resolution 2013-59, which added an at -large community member without changing the committee's objectives — which, in retrospect, was itself slightly odd since by 2013 all the original objectives other than the LCP-IP had presumably been completed. Finally, it might be noted that at the committee's last public meeting in August 2015 it was anticipated the committee would need to hold additional meetings to hammer out a final compromise acceptable for certification by the Coastal Commission. While there appears to have been considerable back and forth between City and Coastal staff, the committee never met again to provide formal public direction to that effort. In my view, this resulted in a very impenetrable adoption process and a very imperfect final document. January 24, 2017, Council Consent Calendar Comments - Jim Mosher Page 2 of 5 Item 5. Resolution No. 2017-6: Implementing Improvements and Efficiencies in the City Attorney's Office The public's understanding of what goes on in the Newport Beach City Attorney's Office is sufficiently vague that it is difficult to comment on the merits of this proposal. Not only does the City Attorney appear to receive direction from the City Council mainly through Closed Sessions (with the direction given seldom being publicly reported), but (not working for the City Manager) reports on recent activities in both the Attorney's Office and the Clerk's Office don't appear in the City Manager's Newsletter. Hence, and especially since it is not yet reported on the City Attorney's webpage, I was surprised to learn from the present staff report that a former Newport Beach Assistant City Attorney (Leonie Mulvihill ?) had recently departed. While it is useful that the Human Resources Director's report in the City Manager's Newsletter for December shows new hires (including presumably in the City Attorney's and City Clerk's offices) my surprise would have been less if it also mentioned departures. However, for reasons unknown to me, it doesn't. Since they don't work for the City Manager, the connection between the City Attorney's (and City Clerk's) office and the remainder of the City administrative service (which does, including Human Resources, and which, per NBMC Chapter 2.12, they are not part of) is also vague. That said, the premise of the present proposal is that changing from three Assistant City Attorneys to one Assistant City Attorney (elevated to key management status) plus three Deputy City Attorneys will be both an improvement and an efficiency. Indeed, the resolution implies that the proposed structure will result in both a long term reduction in salaries and benefits and additional in-house work being done by the newly structured employees. In the absence of any supporting documentation, I find the first part of that highly implausible. The FY2012-2013 budget is the last to have shown the costs of both Assistant and Deputy City Attorney positions. Position Salary Benefits Total City Attorney $216,960 $62,317 $279,277 Assistant (average of 2) $164,313 $52,068 $216,381 Deputy $143,232 $47,475 $190,707 These numbers may be outdated, and the benefits for new hires may be lower, but the proportions are probably reflective of the relative costs of these positions to the City in the long term. Based on them, it seems obvious a structure with one assistant and three deputies will be more costly (not less) than one with three assistants, especially if the proposal is to elevate the January 24, 2017, Council Consent Calendar Comments - Jim Mosher Page 3 of 5 surviving assistant to a loftier and presumably higher paid position than at present (see point 4 regarding the resolution, below). In fact, using the 2013 numbers (and not adding in the raise the surviving Assistant City Attorney is likely to receive), it looks like the proposed structure would have cost at least $100,000 per year more than the existing one: Proposed change Salary Benefits Total 3 Assistants $492,939 $156,204 $649,143 1 Assistant + 3 Deputies $594,009 $194,493 $788,502 Therefore, the assertion under "Funding Requirements" in the staff report that "The City is anticipated to experience long-term budgetary savings" must be based not on salary savings, but on the assumption that the new Deputy City Attorneys will be performing work currently provided by outside firms at a cost lower than those firms are charging the City. While that is possible, it is unsupported by any evidence provided in the staff report, and contrary to Team Newport's usual assumption (which I do not share) that private enterprise can always provide services at a lower cost than a governmental agency. Before accepting the City Attorney's conclusions, it might be prudent for the Council to weigh those against an independent opinion, from an outside attorney or other city attorney, about the appropriate structure and salaries for a city attorney's office in a city of our size. Specifically regarding the proposed Resolution 2017-6: It is good to see the personnel changes being set by Council resolution per NBMC Chapter 2.28. However, that chapter requires a recommendation from the City Manager and applies to the administrative service under the City Manager, which the City Attorney, and his office, are not part of. The Council is here acting more under the power granted to it under City Charter Section 602, which says "The City Council shall have control of all legal business and proceedings and may employ other attorneys to take charge of any litigation or matter or to assist the City Attorney therein." 2. The resolution says it amending prior Council actions, but, as best I can tell, fails to cite the specific prior resolutions it is amending or repealing. 3. While it is good to see the Assistant City Attorney position being better defined, I thought the Deputy City Attorney position had previously been eliminated. Doesn't it need to be reinstated, especially in view of the new role it is supposed to play? 4. Exhibit "A" proposes a new salary schedule for the Assistant City Attorney, but nothing in the staff report reveals what the current schedule is. Based on the job description on the Human Resources website, the current annual salary range is $147,243.20 to $178,880.00. That suggests the proposal allows for a raise of up to $57,886 per year in base salary compared to what could be allowed under the current situation. Again, that is difficult to reconcile with the claim that the proposal allows adding a deputy while reducing January 24, 2017, Council Consent Calendar Comments - Jim Mosher Page 4 of 5 overall salary costs. And despite the claim of "parity," it appears to allow a slightly higher salary than for the Assistant City Manager. Finally, and this may seem an extremely picky point to many, whoever wrote the staff report and resolution perpetuates the aggravating practice of writing numbers, even one (1), two (2) and three (3), in words then repeating them as numerals in parenthesis. While this may have been needed in a former day to reduce the chance of alteration by forgery, it greatly impedes the readability of the documents so produced — page 5-2 through 5-4 of the present staff report being cases in point, where what look like numbered subsections (compare to page 5- 7) are in fact superfluously repeated numerals. I sincerely hope the new hires will be able to rid the office of this noxious idiosyncrasy, which is endorsed by no legal style guide of which I am aware (and condemned by many). Item 6. Approval of Amendment No. 1 to Professional Services Agreement with Fountainhead Consulting Corporation for Park Avenue Bridge Replacement Project Construction Management Services (15R20) The "Cost Proposal" on page 6-12 of the staff report quite candidly indicates that a significant part of the request for $419,896.13 in additional compensation is for services performed in August 2016 through January 2017 — before the contract is proposed to be amended. Unless there was something in the original contract that allowed for this, honoring that part of the request is difficult to reconcile with the requirement in California Constitution Article XI, Section 10 a that "A local government body may not grant extra compensation or extra allowance to a public officer, public employee, or contractor after service has been rendered or a contract has been entered into and performed in whole or in part, or pay a claim under an agreement made without authority of lave' (emphasis added). In other words, municipal payments are to be agreed to before a service is rendered (and in Newport Beach, publicly agreed to), not after the fact. Item 7. Planning Commission Agenda for the January 19, 2017 Meeting It is not clear why the Planning Commission is the only City Board, Commission or Committee to routinely report its activities to the City Council. One would think the Council, and the public would be interested in what the others have done. Regarding this particular action report, it might be noted that no explanation was offered for why Item 6 ("Uptown Newport Planned Community Park In -Lieu Fee Credits") was removed from the calendar. My guess is this turned out to be a request the Planning Commission did not have authority to grant. January 24, 2017, Council Consent Calendar Comments - Jim Mosher Page 5 of 5 Item 10. Request by the Board of Library Trustees for an Exception to Council Policy A-5, "Fund Raising/Contracts by City Boards, Commissions, or Committees" It became apparent at the January 17 Board of Library Trustees meeting that no one is quite sure why the City has a policy prohibiting board members from directly soliciting contributions toward City projects. I believe Assistant City Manager Jacobs suggested it might be related to a perception of a conflict of interest, apparently involving a kind of pay -to -play favoritism in later decisions. If that is indeed the case, it is not entirely clear how the Council's waiving of the policy eliminates the perception. It must also be noted that the policy is being waived to explore the viability of private funding for a library lecture hall, but the Council has never publicly debated whether it endorses the idea of adding one to the City's inventory of facilities, or not (notwithstanding the rather out -of -the -blue mention of one in the recently approved Museum House Development Agreement, Ordinance 2016-24, page 15). Item 12. Filming Planning Commission Meetings; Amendment to Council Policy A-13 I strongly support filming and televising the Planning Commission meetings, but since this item contains no staff recommendation, and instead seeks direction from the City Council, it is difficult to understand what it is doing on the Consent Calendar. In other words, if the Consent Calendar is adopted/approved, what direction (other than accepting the recommended determination that the action is exempt from CEQA) will have been given? Regarding the estimated $4,000 per year additional funding requirement, I thought the original agreement with Newport Beach & Company (contract C-5762) was supposed to include in the base fee the recording and broadcasting over NBTV not only the City Council meetings, but also select meetings of city boards, commissions and committees. I would think at least some credit is due for that. Regarding the proposed changes to City Council Policy A-13: 1. Since the policy was adopted by Council resolution, the modification would presumably have to be enacted by resolution at some future meeting. 2. The draft policy shown on pages 12-4 through 12-6 of the staff report, seems inexplicably not to have started from the source file for the current policy. Hence it contains at least one new typo (not found in the current policy), under Clause L on page 12-4, where the phrase "by refusing to condone breaches of public conducf' has been erroneously inserted compared to the existing policy. 3. The recommended addition of the new Clause M seems harmless, but I'm not sure it's necessary. I have noticed no difference in the behavior of the Planning Commissioners since SPON began routinely video recording and posting their meetings to YouTube in March 2016.