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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed March 27, 2018 Written Comments March 27, 2018, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher(c)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the March 13, 2018 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections indicated in strmkeout.underline format. The page numbers refer to Volume 63. Page 459, last paragraph: "Jim Mosher expressed hope that more public review will occur relative to the Lower Sunset View Park Concept/Overcrossings project, noted the General Plan Implementation Program indicates that all City and external agency CIP projects, along with any air -eel property acquired by the City, need to go before the Planning Commission to determine conformity and consistency with the General Plan." [this comment appears to be misplaced in the minutes, for I do not recall it being part of the Junior Lifeguards testimony] Page 461, Item XII, Avery, first bullet: "Utilized a slide to discuss the Annual California Mtee Marine Affairs and Navigation Conference (CMANC) Advocacy Trip in Washington DC that he, Mayor Duffield and staff attended to advocate for Harbor dredging" [CMANC's official name for this annual event appears to be "Washington Week" rather than "Advocacy Trip"] Page 461, Item XII, Peotter: "Announced he attended the ACC -OC (Association of California Cities — Orange County) Annual Legislative Meeting in Sacramento with Council Member Dixon and met with Assembly members and their staff to talk about the Port Plan" Page 461, Item 8, paragraph just before motion: "Regarding Council Policy A-3, Council Member Dixon explained why she is requesting "for or against" be amended to "in favor of, "and "public consulting" be amended to "public education.'' The minutes reflect what I recall, but in Resolution 2018-16 as signed by the Mayor and in Policy A-3 as posted in Council Policy Manual, only the first change was made. The policy still says "public consulting" and not (as requested by the Council) "public education." This highlights the problem of acting on Consent Calendar items in a form other than that presented in the agenda packet, and more generally, of adopting resolutions in a form other than that presented. If the language of a resolution is modified, I think it is important enough that at a minimum the agreed -to changes should be clearly displayed on the screen for all to see, or better, brought back in printed form for review and adoption on the next Consent Calendar. Is Resolution 2018-16 going to be "corrected"? I would suggest it be brought back for reconsideration. March 27, 2018, Council Consent Calendar Comments - Jim Mosher Page 2 of 6 Page 461, Item 8, motion: "Motion by Council Member Dixon, seconded by Mayor Pro Tem O'Neill, to a) determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) adopt amended Resolution No. 2^�2 2018-16, A Resolution of the City Council of the City of Newport Beach, California, Adopting City Council Policy A-3 Prohibiting the Use of Public Funds for Tax Measure Advocacy." [I did not take the time to review the video, but 16" is the correct resolution number, not "12" — see preceding comment] Page 465, Item XVII, paragraph 1: "Rowan Trefz, National Campaign for Financial Literacy, displayed a slide to discuss the campaign, discussed why financial literacy is important, and requested the City allow them to provide the free financial workshops to the residents and post the workshops in the Navigator." Page 466, last paragraph: "Luke Bre+no Dry took issue with how this item was handled and changing the Harbor into a commercial port." Item 3. Adoption of Resolution No. 2018-17 for the Reducing Crime and Keeping California Safe Act of 2018 As Item 8 at its last meeting (see notes on Item 1, Minutes, above), the Council adopted Policy A-3 prohibiting the City from certain kinds of campaigning on ballot measures. The rationale behind that, at least the part I wholeheartedly agree with, is that it is fundamentally wrong for government agencies to use public resources to influence voters. Whatever the issue, and whatever the Council's position on it, there are always going to be some voters who feel the opposite way, and they have every right to be offended if even a penny of their tax dollars is being spent on the opposite side of the political scale from theirs. It seems ironic, then, that one meeting later the same Council would see nothing wrong with using taxpayer resources, however minimal, to pay to promote the side of a ballot measure campaign that the Council members personally appear to agree with. Does the Council expect to spend even more promoting this if it actually gets on the ballot? As mentioned at the last meeting, I think it is legitimate for the Council to direct staff to prepare, and make available to those who request it, an objective fact sheet about the impacts of a measure on Newport Beach. I do not think it is legitimate for the government to be spending my tax dollars telling me how to vote, or what petitions to sign, as a result of that information. In the present case, the resolution does not provide any information useful to me about present problems or the expected impacts of the measure in Newport Beach. Instead it alludes, in frequently disjointed ways, to statewide statistics about existing problems (many with no attribution at all) whose accuracy local staff would have no way of knowing or verifying. And even statewide, it provides no clear projection for how most of those statistics would change with passage of the measure. This sounds to me like a campaign statement by the Council members, and not the kind of local fact disclosure I think is legitimate. March 27, 2018, Council Consent Calendar Comments - Jim Mosher Page 3 of 6 Regarding Resolution No. 2018-17: Page 3-10: The third and fourth Whereas paragraphs seem out of chronological sequence and would seem like they should come after the long fifth paragraph, rather than before it (since the implication, presumably, is that the statistics reported in paragraphs three and four were the result of the events in paragraph five). 2. In paragraph 5: "These changes allowed individuals convicted of human trafficking involving sex act acts with minors, rape of an unconscious person, assault with a deadly weapon, and domestic violence to be considered "nonviolent offenders";" 3. Page 3-11: paragraph 2: "WHEREAS, shoplifting incidents have started to escalate in such a manner that they have endangered innocent customers and employees;" Item 4. Proposed Amendments to the Records Retention Schedule The Council may wish to know the surpassingly strange fact that it (the Council) allows the City's entire Records Retention Schedule to be privately copyrighted by Gladwell Governmental Services, Inc., the outside consultant who assists in its preparation. As a result, aside from the rare glimpses of pieces of the RSS that are sometimes provided in Council staff reports like this, when last I checked the public in general cannot know what's in the RSS without visiting the Clerk's Office and asking to inspect the single (non -circulating) paper copy that seems to exist. As a result, statements such as that "FIN 019" is being "moved to CM 018" are difficult to follow, since one has no idea what "CM 018" is. That the RSS, which governs the availability of all other City documents, is itself the most secretive of documents, is indeed strange to me. One wonders if it would be divulged in response to a Public Records Act request, or if the private copyright would be invoked as protecting it from reproduction? Regarding the substance of this action, it would have been helpful if the staff report could have drawn attention to the more important changes, including any in which the retention time is being increased, as opposed to decreased (the sections highlighted in blue in the Exhibit 1 to the resolution). And regarding Exhibit 1, it is particularly inscrutable since the Council appears to be adopting certain changes, but those changes are not presented in a conventional strike- out/underline "redlined" format. Without further explanation, I am only guessing that red represents deleted text while blue represents added text (which itself is a problem if this resolution were to be saved as a black and white copy). Incidentally, with modern computer technology, I'm not sure I buy the argument in the Resolution that retaining a large volume of records slows document retrieval times if the records retained are in electronic format. Indeed, with advances in technology, the City has been retaining items that do not seem to have been systematically retained in the past, such as Council staff reports, despite the hours of effort that went into preparing them (see, for example, the first item in Exhibit 1, which suggests all staff reports prior to October 1998 have been lost — March 27, 2018, Council Consent Calendar Comments - Jim Mosher Page 4 of 6 regarding which I hope "Records no longer in existance [sic]" means the records are already missing and staff is not asking the Council's permission to destroy the ones it has?). I believe the additional retention of records made possible by electronic technology is a very positive change that has made possible the creation of a valuable and increasingly accessible public record (for example, one can quickly find we do have at least a couple of Council agenda packets prior to October 1998 on Laserfiche — specifically, August 10, 1998, and September 28, 1998). 1 believe the Council should be encouraging staff to retain more records, not less, and any suggestions here to not preserve records should be rejected. I would be particularly concerned about the "no longer required" and "no longer needed" notations — not being able to tell from the resolution what they are, what the current policy regarding them is, and whether changing the policy is a good idea. The staff report says the changes are "acceptable." It would be nice to know they are not only "acceptable," but also "desirable," since, in general, destroying records does not, to me, promote transparency or openness in government. Item 7. On -Call Professional Services Agreements for Marine Engineering and Harbor Related Services Council Policy F-14 (see E.1 on page 6) continues to say "on call" agreements are intended for services "needed from time to time where the size of the job does not warrant the expense of entering into individual agreements for each service." I believe the Council has allowed the City to move away from that model, and increasingly allowed major new expenditures to be initiated under the umbrella of "on call" agreements, rather than as separate contracts, making it very difficult for the public to know who is working on what and who authorized it. We have here the requested approval of $300,000 of work per year for the next three years, for a total of $900,000, which we are assured is, or will be, somewhere in the budget. The potential work to be performed is so broadly defined in the three identical Scope of Services that it could include almost anything, including full responsibility for very major projects. I do not see this as being in the spirit of staff needing someone "on call" for a brief one-off technical consultation. As an aside, Item 12 on the present agenda is a request to approve a $120,000 professional services agreement with a coastal consultant, $32,000 of which is apparently payment for undefined work already performed at the direction of Council members or staff, but without a contract even though the consultant had a contract for other work with the City. During the discussion of that as Item 16 at the March 13 meeting, I believe the Community Development Director made a comment that staff would have preferred for that consultant to have been on an "on call" contract, meaning he could have been paid for his work on Item 12 without any specific Council authorization, and without anyone knowing he was working on it other than the staff person who asked for his services (in this case via an unposted "Letter Proposal"). March 27, 2018, Council Consent Calendar Comments - Jim Mosher Page 5 of 6 I do not think this "on call" model is a good one for a governmental agency to use, or its increasing use in Newport Beach is a good trend. It seems to me to be how a private business might be run, not a supposedly open, transparent government. I would suggest the Council reject this proposal and ask that the bulk of work requested here be performed pursuant to clear individual agreements as required by Policy F-14 (not unlike the separate contract with one of these consultants briefly considered as Item 11 at the March 13 Council meeting). To facilitate that, it would be very helpful for the Council to amend Policy F-14 to set a clear dollar amount on the size of the discrete, individual jobs that staff can regard as fitting within the scope of a Council -approved "on call" arrangement — a limit that, as best I can tell, is glaringly missing from the policy at present. I would certainly think $32,000 far exceeds the reasonable payment for a discrete "on call" service, but I have no idea how large the jobs staff would like performed under the present contracts might be. I don't think the Council should approve this without knowing that. Item 8. Planning Commission Agenda for March 225 2018 The question is occasionally raised (but never answered) of why the Council is informed in this way about Planning Commission activities, but not those of any of the City's other boards and commissions. In any event this item consists of an "Action Report" and a copy of the published Planning Commission agenda. The published agenda, on page 2 of 3, includes the Brown Act announcement that the Commission would be discussing a Craft Brewery Ordinance involving "alcoholic beverage manufacturing with tasting rooms in the Industrial Zoning District." As I pointed out at the meeting, a reasonable person considering whether to attend the meeting, or not, would assume the discussion would be confined to an ordinance related to the manufacturing of beer and tasting of samples. In fact, when consideration of such an ordinance was initiated back in October, the Commission suggested changes to its scope. It is now an ordinance to allow tasting rooms not just at craft breweries, but also at wineries and distilleries. And the "tasting rooms" are actually unlimited drinking areas of up to 1,750 square feet, with a possibility of entertainment and dancing in a district supposedly set aside to preserve a place in the City for "industrial" activity. And they can sell beverages not actually manufactured or bottled in the district (or in Newport Beach, for that matter). To me, an agenda announcement of discussion of a "craft brewery ordinance," when staff knows the discussion will be about something more, is so deceptive as to violate the Brown Act. March 27, 2018, Council Consent Calendar Comments - Jim Mosher Page 6 of 6 Staff disagreed, saying the separate hearing notice published in the newspaper mentioned the "craft brewery ordinance" covered more than craft breweries. Unfortunately for staff, the Brown Act is not about hearing notices, but rather about agendas and the public's ability to discern what is going to be discussed at a public meeting from the agenda posted 72 hours in advance. In this case, the public could not have guessed the scope of the discussion from the agenda published by the City, which clearly limited it to "breweries." I do not believe the public is supposed to have to look beyond the agenda, delving into staff reports or separate notices to discover what a meeting is about. In addition to the above, the action report contains a couple of errors: 1. On Council agenda packet page 8-2, Item No. 4, paragraph before vote: "The Planning Commission conducted a public hearing and approved the project as recommended with modifications to the conditions." 2. On the same page, Item No. 5, delete the irrelevant middle paragraph, which appears to be inadvertently left over from some earlier Action Report on an unrelated item: "The Xanning Commission conducted a publiG hearing and continued the item to the Ilex2hH-}ueP 7� 7/147� meeting staff ni ADr the annlinanf and tato c-ensider ddifiona �� � design option ."