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HomeMy WebLinkAbout00 - Written CommentsRecieved After Agenda Printed July 11, 2017 Written Comments July 11, 2017, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( limmoshe1Dyahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the June 27, 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 307: paragraph 3, sentence 1: "Council Member Peotter stated he was not in favor of requiring higher diversion rates than that those required by the State." Page 307: paragraph 3 from end: "Council Member O'Neill stated he did not support 1 and 3 or going above state mandated requirements. He indicated support for 2, 4 and 5." [This may, as it stands, be interesting to some, but it would be much more informative if the minutes, at this point, gave some hint as to what 1, 2, 3, 4 and 5 were. Even if the reader guesses this is a forward reference to the five questions hinted at on the following page, the minutes there provide only the general topic of the question, not what the actual question was — making it impossible to tell what "supporting" or "not supporting" the proposals might mean.] Page 309: paragraph 2, sentence 3: "She stated they were making due do with existing staff." Page 310: last paragraph before Item XIII: "Mayor Muldoon stated he attended the US Conference of Mayors." [If this statement was made to justify reimbursement for travel expenses in compliance with California Government Code Subsection 53232.3(d), a slightly more extensive report on the public benefit provided by the travel would probably be expected.] Page 312: Item XVII, paragraph 2: "City Manager Kiff discussed precautions were being taken regarding sharks." [or "City Manager Kiff disEussed reported precautions were being taken regarding sharks."] Page 312: last paragraph, sentence 1: "In response to Council Member Dixon, City Manager Kiff stated it would be less expensive to conduct in-house with a PEPRA employee." [It is totally unclear from the minutes what "it" is.] Page 313: heading for Item 9: "9. Annual Appointments to Boards and Commissions Board and Commission scheduled Vac-ancnies - Cen&mation of Nominees [241400-20171" [The heading in the draft minutes appears to have been inexplicably copied (and renumbered) from Item 11 of the June 13, 2017 agenda. It does not correspond to June 27's Item 9, which was noticed as indicated.] Page 313: paragraph 3 from end, last sentence: "Council Member Dixon thanked the 110 applicants, 40% of which whom were women." July 11, 2017, Council Consent Calendar Comments - Jim Mosher Page 2 of 5 Item 3. Adopt Decision Regarding a Disability Retirement in the NBFD This item does not seem properly noticed for the Consent Calendar. As indicated in the explanation provided under Item XIII, Consent Calendar items are expected to be written as recommendations to, without separate discussion, "be enacted by one motion in the form listed below." In the form listed, this particular item gives the Council a range of options. It "may" choose to adopt the resolution provided. Or it may choose to "provide other direction to counsel for the City." Clearly, additional discussion will be needed, for if enacted as listed it will be forever unclear which choice the Council made. The item would also be much more meaningful to the public if it more clearly referenced the staff report to Item 21 from the April 11, 2017, City Council agenda, which reported the background of this matter and listed what it purported to be the options available to the City Those options seem unusual to me in that California Government Code Section 21156, cited at the top of the proposed resolution, appears to say that if an employee is not satisfied with his employer's decision as to whether he "is or is not incapacitated," the employee has the right to appeal the employer's determination to an administrative law judge. I could be missing something, but the right to appeal seems rather pointless if, as seems to be asserted here, the employer (the City) retains the right to reject the judge's decision and substitute its own. My guess is the law was intended to give the Ca1PERS Board of Administration, not the contracting City, the power to review and alter the judge's decision. So I have to wonder if the City Council can even do this at all. That said, and the April 11 staff report notwithstanding, I was surprised to learn from this staff report and resolution that the Council had held the promised written hearing behind closed doors on June 27. 1 saw, and heard, the announcement of two closed session items related to the Matheis matter on that day, but those were noticed under Government Code Section 54956.9(d)(1), which I thought was used for the Council "to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation." I didn't know it could be used to conduct hearings on employment matters. In fact, I don't know what exemption would apply to this and allow such a hearing to be held behind closed doors. Item 5. Professional Services Agreement with Sampson Oil Company for Oil Well Management Services I thought state agencies were considering ordering a major clean-up and consolidation of the West Newport oil operations. That does not appear to be the subject of the present contract, but would it affect the City's operations? I might also note that concern about "fracking" has been raised at a number of the City's Water Quality/Coastal Tidelands Committee meetings. Does the contract in any way restrict Sampson's ability to use such processes on behalf of the City to improve yield? July 11, 2017, Council Consent Calendar Comments - Jim Mosher Page 3 of 5 Item 7. Tentative Agreement with the Association of Newport Beach Ocean Lifeguards (ANBOL) I think it's commendable that the City has made this preliminary version of the document available for public review and comment more than two weeks before its proposed adoption. Page 7-6, Paragraph B.2: I am unable to disentangle the intended meaning (if there is any) of "The terms and conditions of this MOU shall prevail over conflicting provisions ... which ... specifically provide that agreements such as this prevail Page 7-8: 1 do not understand the first provision at the top of the page with the three sub -parts (a, b, c), probably in part because I don't know what the existing "steps" signify. In particular, I have no idea what "a new five percent (5%) top step" means, and find the staff report uninformative since it simply repeats the same mysterious words (at the bottom of page 7-2). From the cost table on page 7-18, 1 would guess this mandates a pay increase of 5% for certain members. But if so, I don't know relative to what or how many employees are affected. I am similarly at a loss to understand what the command to "Merge the Lifeguard 11 and 111 salary schedules" means. Assuming there is currently a difference in pay, would the higher or lower rates be used in the "merged" schedule? My guess is this may have been intended as a command to replace the existing Lifeguard II schedule with the modified Lifeguard III one, giving all the Lifeguard 11's a raise to the (improved) Lifeguard III salaries. The mystery is only partially solved when one discovers "Exhibit A" on staff report page 7-17. Without exactly explaining what it is, this seems to be a list of hourly salaries for the various job titles and sub -classes within them. This appears to be the key element of the MOU, but strangely it does not appear to be referenced anywhere within the MOU (that is, before the signature page). And as a public information document, it is of limited value since it gives no hint how these rates compare to the current ones, or how many employees are in each category. From "Exhibit A," it appears the "5% step" terminology refers to the fact that in any year, each step pays 5% more per hour than the preceding one. The staff report, on page 7-2, might make the public believe the MOU offers no pay increases until July 1, 2018 (when a modest 2.0% increase is granted). That may be true of Lifeguard 1, but it appears that immediately upon adoption all Lifeguards II and III will, in effect, be automatically moved up a step, resulting in a 5% pay increase (or more, if Lifeguard III steps were more highly paid than the same -numbered Lifeguard 11 steps), even though because the steps will be replaced and renumbered, it may appear no promotions have occurred. Page 7-9: Paragraph 4: Although there may be no need to know, it is not obvious what "FLSA" stands for. Page 7-10: Paragraph 5, line 4: 1 would guess "for those worked" was intended to read "for those hours worked"? I am also somewhat surprised the pay is higher when acting as a "Junior Guard Group Leader" than when performing regular Iifeguarding duties. From the job title, I July 11, 2017, Council Consent Calendar Comments - Jim Mosher Page 4 of 5 would have guessed the former to be more like a contract recreation provider than a safety officer, but I probably don't understand the title or the responsibilities involved. Near the bottom of the same page, at the end of Section 3.A, it is less than obvious to me what it is trying to say regarding how pay is figured if it is determined work is no longer necessary after an employee has reported for duty (and possibly started a shift). My guess is it is trying to say that if the employee voluntarily chooses to leave, they will be paid for hours worked plus two hours cancellation pay -- but have the option to a full day's pay if they choose to stay even though they have been told their presence is not necessary. Pages 7-10 to 7-11, Section 3.B: What are the consequences of not working the minimum hours listed? Does the existence of "Work Hours Standards" mean we have a class of lifeguards who do not meet these standards that are not considered ANBOL members and who receive completely different pay and benefits? Page 7-12, Paragraph F: I would guess the first bullet under "F. Parking Passes" was intended to read "Allows parking in spaces marked..." (instead of "Allows parking spaces marked") and the second bullet was intended to read "Allows all parking in all spaces ..." (instead of "Allows all parking spaces"). That said, it seems strange the parking privileges would be less generous in winter when parking is more plentiful. And it is unclear to me if the understanding is that the pass can used at all times, including for private use, or only while on duty. Page 7-13, Section I, end of paragraph 2: The deletion of the reference to Government Code Section 20636 may make it difficult to know what "compensation earnable" (used earlier in the paragraph) is intended to mean. Page 7-14, Section J: A reference to where the details of "California's Healthy Workplaces, Healthy Families Act" can be found would seem helpful. Without that, the significance of some of these provisions is not entirely clear. Page 7-18, Attachment B: The meaning of the columns labeled "Projected Cost" is also not immediately obvious to me. Nor is the distinction between the terms "four-year cost" and "cumulative cost" (introduced on staff report page 7-3 and used as a note on page 7-18), or what causes them to be different. Whatever they are meant to represent, the contract "costs" presented here, and echoed in the staff report text on page 7-3, seem extremely misleading to me. As best I can tell, the numbers listed under "Projected Cost" seem to indicate the increase in costs for the listed year compared to the year before. But to the average person, the thing of interest is likely to be how much the MOU will obligate the City to pay compared to what it would pay at the current rates. The table appears to show that in Year 1 (FY17-18), the City will pay $41,221 more than it does now. In Year 2, the table shows $37,948, but I believe that means the City will need to pay the extra $41,221 per year from Year 1 plus another $37,948, for a total of $79,169 added cost in Year 2. Year 3, as I understand it, adds $20,334 to that, for a total of $79,169 + 20,334 = $99,503 more. And Year 4 adds another $20,516 for a total of $120,019 in that year above the current rates. July 11, 2017, Council Consent Calendar Comments - Jim Mosher Page 5 of 5 Hence, I would say staff's projection of the 4 -year added cost of adopting the MOU compared to staying with the currently budgeted rates is $41,221 + 79,169 + 99,503 + 120,019 = $339,912. The number Attachment B quotes for 'A Year Cost" Total ($120,019) seems only to be how much more the City expects to be spending on ANBOL lifeguards per year, after four years with the new MOU, than it does now — not the cumulative extra cost. Given the cumulative extra costs resulting from the MOU as listed in Attachment B seem to total $339,912 (as estimated above), I am unable to decipher the source of the final footnote to the attachment that says "Cumulative cost of this contract will range between $165,000 to $190,000." Either the I, or the author, am missing something.