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HomeMy WebLinkAboutSS5 and IV.E - City Manager Recruitment - CorrespondenceReceived After Agenda Printed May 8, 2018 Written Comments May 8, 2018, Council Agenda Items SS5 and IV.E Comments The following comments on an item on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(a)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item SS5. City Manager Recruitment: Community Comment Opportunity- Values, Experience, and Other Qualifications Desired It is good to see the Council seeking public input with regard to the City Manager Recruitment However, since at its April 10, 2018, meeting the Council directed the City Clerk to coordinate the recruitment process, and at its April 24, 2018, meeting it authorized the hiring of a recruiting firm, it is disappointing to see nothing on the present agenda under which the Council can legally discuss among itself or with the City Clerk or the recruiter its own views about what they are seeking in a city manager and how we will find the best one we can. This leaves me, at least, with the uneasy feeling that staff, or whoever wrote the agenda, is expecting to provide the Council with an opportunity to hold that discussion and provide that direction under Item IV.E on the Closed Session agenda. I believe that would not only be out of keeping with the spirit of openness and transparency under which the recruitment was supposed to be conducted, but also illegal. Please see my comment regarding Item IV.E below. Item IV.E. PUBLIC EM PL OYEE APPOINTMENT (Government Code Section 54957(b)(1)): 1 matter Title: City Manager The Council had an almost identically captioned item, except with "Title: Initiation of Recruitment Process for New City Manager," as Item IV.A on its April 24, 2018, agenda. I objected, and it was cancelled. At the time, I suggested the widely acknowledged, and sole, reason for Section 54947(b) is to avoid invasion of the privacy of current employees or those seeking employment through the candid discussion of their particular qualifications or faults in open session (or revealing they are seeking to change jobs). So the only legitimate use of Item IV.E is for interviewing or discussing the resumes of actual identifiable people. It cannot be used for discussion of the process, for discussion of general qualifications, for instructions to City or outside recruiters or for any other purpose that would not violate the privacy of an identifiable person holding or seeking the specified job title. Thus the Council could at this time, and under heading IV.E, legally discuss in closed session whether it has any internal candidates (such as Carol Jacobs, or a department head) it would consider moving up to the City Manager position (either as interim or permanent), or discuss any resumes the Clerk has received, but nothing more (and even these things are not required to be done in closed session). May 8, 2018, City Council Agenda Item SS5 and IV.E Comments - Jim Mosher Page 2 of 3 Unfortunately, in connection with the April 24 notice, both the City Clerk, in her cancellation notice, and the City Attorney, in an email to the public, implied they do not accept this interpretation of the Brown Act, and actually saw nothing wrong with discussing other aspects of the recruitment process behind closed doors under the "Employee Appointment" heading. When asked to clarify their interpretation of the Brown Act's open meeting exemption for "Employee Appointment" as it would apply to the present meeting, both refused, saying they could not discuss closed session matters. Not only do I find this response outrageous (the request is not to disclose closed session confidences, or to provide legal advice to a resident, but rather to explain how the law is interpreted by the City in Newport Beach), but it has led to the circulation of wild, and I would hope unfounded, rumors that the Council is actually planning to do what the agenda says: that is, make the appointment of a new City Manager on May 8. The idea that there is something unethical or illegal about revealing a city's interpretation of the laws applicable to it is refuted by the cities that routinely publish their opinions on legal matters of public interest: such as San Diego, San Francisco and Oakland. Even among smaller cities, not all are as shy about attempting to let the public understand their legal reasoning. As a case in point, I attempted to call the City Attorney's attention to an extended discussion, published starting on page 24 of the City of Port Hueneme's March 21, 2016, agenda packet (6:30 pm Item 8.A), between their City Attorney and the Ventura County District Attorney regarding the exact point of contention here, namely the scope of allowable discussion under the Brown Act EMPLOYMENT/ APPOINTMENT exception. Over the course of three years the DA had twice sent "cease and desist" letters to that city asking them to limit "EMPLOYMENT/ APPOINTMENT" closed sessions to discussions of actual candidates for employment/appointment. That is an interpretation widely, if not universally, accepted, by a huge preponderance of case law and interpretive precedent, some of which is provided in the letters from the Ventura County DA. In addition to that and the references provided in my previous objection, see, for example, the 2016 Atkinson, Andelson, Loya, Ruud & Romo Brown Act Summary (bottom of page 25): "The closed session discussion must relate to a particular individual." Or the San Francisco Good Government Guide (page 163): "The purpose of the personnel exception is to enable policy bodies to protect the privacy of individuals subject to specific types of personnel decisions, and to foster candid deliberations concerning such individuals. Therefore, policy bodies may not meet in closed session to discuss a department's general personnel operations or policies. Also, as a general rule, a policy body may not hold a closed session to discuss the process or criteria for the selection of a department head, or the general criteria for evaluating a department head. These issues typically do not focus on a particular individual." May 8, 2018, City Council Agenda Item SS5 and IV.E Comments - Jim Mosher Page 3 of 3 The Port Hueneme City Attorney eventually acceded to the conventional interpretation, but only after arguing that the existence of separate "safe harbor" exemption notices in the Brown Act for "PUBLIC EMPLOYMENT" and "PUBLIC EMPLOYEE APPOINTMENT" must mean the Legislature had in mind a two part process, in which closed door discussion of the EMPLOYMENT process (including general qualifications) could precede the closed door APPOINTMENT. I would submit the Port Hueneme City Attorney has this wrong. The words do not appear in the order he would like in the Brown Act in either Section 54957(b) or Section 54954.5. "Employment" comes after "Appointment," not before, and it is separate from, and precedes, "evaluation," "discipline" and "dismissal." would submitthe "Employment exemption" announcement is intended to be used, for example, when a new appointee is unhappy with his position and wants to proactively discuss the problems he is experiencing with his employers (the Council). In short, I believe nothing can be discussed under Item IV.E otherthan the qualifications of specific candidates for the position of City Manager. It is very unfortunate that the City Attorney appears unwilling to provide the public with an assurance that he will limit the discussion to that narrow focus. Being informed by the above about the conventional interpretation of Gov. Code. Sec. 54957(b), should the discussion wander to matters other than discussion of specific candidates, and should the City Attorney not caution them to stop, it should be unnecessary to remind the Council of California Government Code Sec. 54959 : "Each memberof a legislative body who attends a meeting of that legislative body where action is taken in violation of any provision of this chapter, and where the memberintends to deprive the public of information to which the member knows or has reason to know the public is entitled under this chapter, is guilty of a misdemeanor." I believe the City Attorney's erroneous direction, if he gives one, may generate sympathy, but I don't think it would relieve the Council members of responsibility for their conduct. That said, the Council is welcome and encouraged to discuss in open session the recruitment process and the qualities it is seeking in a City Manager. Indeed, given the closed session limitations, it is hard to see how a rational recruitment process can be conducted without that.