HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed
June 12, 2018
Written Comments
June 12, 2018, City 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 May 22, 2018 Special Joint Meeting with the
Finance Committee and City Council Meeting
The passages shown in italics below are from the draft minutes with suggested corrections
indicated in str°mutunderline format. The page numbers refer to Volume 63.
Page 512, last line of paragraph 2 before Item IV: "...and believed Council should reduce staff's
discretion to write contracts and disperse disburse City funds"
Page 515, bullet 3 from end of page: "Mayor Duffield: • Spoke at the Corona del Mar Residents
Association Annual Meeting" [Mayor Duffield spoke at the CdMRA morning meeting on May
19. It is Council member Peotter who spoke at the April 20 Annual Meeting.]
Page 516, vote under first bullet: "The City Council concurred to place the matter on a future
agenda, with Council Member Muldoon, Council Member Dixon, Council Member Peotter,.
Council Member Avery, CounGil Member Oeeffe ; Mayor Pro Tem O'Neill, and Mayor Duffield
supporting the item." [name appears twice]
Page 520, end of motion: "d) approve a one-year commitment of City funding support to the
Newport Beach Restaurant Association Business Improvement District through fiscal year 2018-
2019 -and work towards transitioning into the 1994 BID law." [space missing]
Page 522, paragraph 2: "City Manager Kiff discussed the reasons for the story poles and
reported the City does not have a formal project application from the landowner." [This is what
was said, but what was said was incorrect. Although it is still regarded as incomplete, an
application (PA2017-253) for the "Newport Village" project on Mariner's Mile was submitted to
the City on December 4, 2017.]
Item 3. Prohibition of Piers and Floats in Newport Harbor - Second
Reading
I commented on this proposed ordinance at its first reading. I see the staff report, but not the
correspondence from May 22 has been carried forward to the current staff report.
I continue to think it is a bad policy, poorly implemented.
June 12, 2018, Council Consent Calendar Comments - Jim Mosher Page 2 of 8
Item 4. Re -organizations of the Public Works Department, Municipal
Operations Department, and Creation of a Utilities Department -
Second Reading of Ordinance Nos. 2018-6 and 2018-8
Proposed Ordinance 2018-8 continues to be mis-advertised, under "Proposed Ordinances" on
the City website as one (among other things) "Adding Section 2.12.120 to Chapter 2.12 of Title
2 of the Newport Beach Municipal Code." Section 2.12.120 was to be the part defining a new
Harbor Department, and that is no longer a part of the ordinance — which highlights the
confusions that arise when large changes to an ordinance are made verbally at first reading
without the circulation of a new written copy.
As indicated in my May 22 comments, there is still some confusion about the intended division
of labor between the new Utilities Department and the augmented Public Works Department, as
well as uncertainty as to whether the division, even if clearly expressed, is really logical.
I personally think that confining the Utilities Department to administering the Enterprise Funds
and having it effectively "contract" with the Public Works Department for services, when needed,
would work better and make more sense than the present proposal.
It is very hard to understand, for example, why street sweeping belongs with Utilities while
beach sweeping belongs with Public Works.
Item 5. Resolution of Intention to Renew the Newport Beach
Restaurant Association Business Improvement District and Levy
Assessments in Fiscal Year 2018-2019 (Resolution No. 2018-27) and
Approve Funding Support for Fiscal Year 2019
1 submitted both written and oral comments on this item when it was presented as Item 6 on the
May 22, 2018, City Council consent calendar.
As noted there, the Council is being asked to approve giving the NBRA BID $40,000 taken from
the FY2019 Budget under City Manager's Office, Economic Development Division, line
01020202 841046 — an item oddly marked as for "Special Department Expenses" related to
Supplies and Materials."
Item 6 makes a similar request for the Corona del Mar BID.
In my previous comments, I see now I unintentionally mischaracterized the origin of the five year
$40,000 "commitment" that is expiring and which staff is asking the Council to renew for another
year. Reviewing a bit more carefully the staff reports from that time, I see this was supposed to
represent the administrative burden the existence of the BIDs puts on City staff, and the theory
was, apparently, that the private sector being more efficient than government, the money could
simply be given to the BID and they could purchase equivalent services more cheaply.
June 12, 2018, Council Consent Calendar Comments - Jim Mosher Page 3 of 8
However, I don't believe there was any detailed accounting to prove that $40,000 really was the
correct City staff cost for each BID (as opposed to all of them together), and I seem to recall the
City already contracted with a private vendor, Scott Palmer of BID Systems in CdM, to provide
most of the administrative support for all four of the 1989 BIDs that existed at that time.
I am also very skeptical of the notion that, irrespective of any lingering civic responsibility for
creating the BID, the $40,000 is a good public "investment" anyway, because every tax dollar
provided to the BID comes back many times over. If that were true, it would clearly be in the
public's interest to "invest" the entire City budget in the BIDs and we would all very soon be very
rich.
However that may be, I share Mayor Pro Tem O'Neill's concern about the propriety of renewing,
year after year, involuntary assessments on business owners without any clear indication those
being assessed see value in the operation and want to be assessed.
The two surviving 1989 BIDs were, as far as I know, created by former Councils at the request
of a very small subset of those assessed, and as such they always run the risk of being or
becoming something in which governmental powers are being used to charge many for the
benefit of a few.
But as indicated on May 22, my biggest concern is not with the two surviving 1989 BIDs, but
rather with the two that dissolved five years ago, and the self -declared "merchants associations"
that emerged to replace them. To the best of my knowledge, those associations make no
assessments on themselves and exist solely to spend as they like the $40,000 that has been
given them each year, with little or no oversight or accountability. I see no reason to continue
that practice. And I am deeply concerned that I don't know if City staff feels the approved budget
will give them the authority (because it is below the staff contracting limit) to continue dispensing
those annual gifts from the above budget accounts with no explicit Council approval of the type
being requested here.
I would hope staff doesn't think the excess amount in budget line 01020202 841046 is being
approved for that purpose, but I don't know.
Item 6. Resolution of Intention to Renew the Corona del Mar Business
Improvement District and Levy Assessments in Fiscal Year 2018-2019
(Resolution No. 2018-28) and Approve Funding Support for Fiscal
Year 2019 (continued from the May 22, 2018 City Council meeting)
My comment on this is the same as for Item 5.
June 12, 2018, Council Consent Calendar Comments - Jim Mosher Page 4 of 8
Item 8. Calling the November 6, 2018 General Municipal Election
Paragraph 2 of the Discussion on staff report page 8-2 reinforces the misconception that the
purpose of the November election is "to elect four Council Members for Districts 1, 3, 4 and 6"
[emphasis added].
Under our Charter, Council members in Newport Beach are not "for" districts, they are "from"
districts, and there is a big difference. Council members "foil' districts represent the people in a
district and are elected by them. Council members "from" districts satisfy a residency
requirement, but are elected by the whole city and represent all its residents equally.
If our Council members were "for" districts, it would make little sense for the voters in, say,
District 2, to have any say over who should be the representative "for" the residents of District 1,
any more than the residents of Newport Beach should have a say over who will be a council
man in Huntington Beach or Virginia Beach.
That said, I believe there are endemic problems with how Council elections are conducted in
Newport Beach, and since the Council is considering charter amendments in Item 28, it would
be good to see creative solutions for solving them (some of which, according to the present staff
report might not even require Charter amendments, since some election rules can be set by
ordinance).
The two biggest problems I have seen are: (1) that some Council members see themselves as
representatives "for'' districts, rather than "from," while others do not; and (2) that the lack of
run-offs is perceived as making it difficult or impossible to unseat an unpopular incumbent due
to the splitting of votes between a multitude of alternatives (which in turn creates a very
unfortunate landscape of strategic candidacies and strategic voting).
Solving the first, so we have a uniform understanding of our system of governance, would
indeed appear to require amending the Charter. We could either change to by -district elections,
in which each Council member would be elected exclusively by residents of the district they
purport to represent. Or we could eliminate the districts altogether, retaining the current at -large
elections, but without a residency requirement.
Solving the second would require only the adoption of a "better" voting system.
One possibility is "instant run-off' or "ranked" voting, in which each voter ranks all the
candidates in order of preference so that if their highest priority candidates don't win outright,
their lower priority choices are known and can be applied, just as if run-offs were occurring. This
system, however, requires changes to the ballot format, which the County Registrar may not
like, as well as increasing the probability of voter confusion and error (particularly with paper
ballots).
An arguably better system, requiring no change to the ballot format, is "approval" voting, in
which each voter is asked to mark all the candidates they "approve of (or, equivalently, to not
mark those they couldn't live with). The candidate who can be tolerated by the most voters
wins.
June 12, 2018, Council Consent Calendar Comments - Jim Mosher Page 5 of 8
Should the City choose to go to strictly at large elections (with no districts) then at least two
additional systems merit consideration. "Cumulative voting" (requiring changes to the ballot
format) allows each voter to vote for as many candidates as there are open seats on the
Council, with the possibility of putting all their votes are a single one. "Limited" voting (requiring
no changes to the ballot) forces each voter to vote for their single, most favored candidate even
though there are multiple seats open.
All these systems allow minority stakeholders in a community to express their will, and get at
least one candidate sharing their views on the council, more effectively than with traditional
voting in which the same majority elects all the council members. And while those "minority"
council members might be consistently outvoted on the Council, their presence would
presumably lead to healthier and more lively public debate.
Additionally, the adoption of one of these systems would arguably insulate Newport Beach from
the "discrimination" lawsuits that have plagued many other California cities, in which it is claimed
protected minorities within the communities cannot effectively exercise their voting rights.
The still better solution, I think, is for all electeds to try to understand they have a solemn, if
unwritten, obligation to try to represent the interests of everyone, not just those who elected
them, even if that means submerging their personal views on an issue.
Item 9. Resolution No. 2018-35: Adopting a Memorandum of
Understanding with the Newport Beach Lifeguard Management
Association (LMA) and Amending the Salary Range for the Position of
Assistant Chief, Lifeguard Operations
Since the existing MOU expired at the end of last year, I am pleased the new one involves no
retroactive changes affecting the last five months, but I am equally puzzled that the new one —
after six months of negotiations — is for just seven months more (until the end of the current
calendar year). I am unable to find any explanation of the unusually short term in the present
staff report or that from May 22.
It might also be noted that the proposed changes are much more extensive than one might
guess from the italicized passages in the version being presented for approval. One has to look
at the redlined draft from May 22 (where this was Item 14) to see the many passages that were
crossed out of the existing agreement.
These changes have resulted in a number of anomalies regarding which nit-picking comments
could be made (for example, on page 9-19, in the first sentence under 2.a., "The City's
contribution towards the Cafeteria Plan will increase to $1,524" is no longer a statement of an
"increase" promised by the new MOU, but rather a statement of the current contribution as set
by the last increase made under the old MOU — that is, the current contribution, set to expire in
less than two weeks).
June 12, 2018, Council Consent Calendar Comments - Jim Mosher Page 6 of 8
But the most confusing thing, to me, is the new statement of increases in base salaries listed in
italics in the three paragraphs at the top of page 9-12. The first mentions a 1 % increase that
applies to "all members," but the next two list different percentages for two specific
classifications to which most of the 14 members apparently belong. It is impossible to tell if
those percentages listed for Captains and Battalion Chiefs are in addition to, or instead of, the
1%.
Nor can the answer be easily be deduced from Attachment C which shows about a 4% increase
in base salary from the current MOU, largely offset by decreases in "Supplemental Pay."
From page D118 of the published Budget Detail there are 2 Battalion Chiefs, 8 Captains and
2.25 FTE Lifeguard Officers. From the present staff report's description of the later as a "0.75
FTE" position, I am guessing there are 3 Lifeguard Officers, for a total of 13 members, although
the staff report says there are 14.
Based on that, I am guessing the percentage increases listed for Captains and Battalion Chiefs
are in addition to the 1 % increase.
So it would seem most of the employees are getting substantially more than the 1 % "wage
adjustment' disclosed in the staff report, although I also have trouble understanding what the
staff report refers to as the "cost neutral restructuring of scholastic and longevity pay."
Attachment C, if it is correct, shows a very large reduction in "scholastic pay," with only a
modest increase in "longevity pay" (even though in the MOU "longevity pay" appears to be a
new feature) — the net of the two nearly wiping out the 4% increase in base wages.
Item 15. Special Event Support Program FY 19 Funding
Recommendations
Since this is a budget adoption agenda (Item 23 being the annual budget adoption hearing), it
seems appropriate to point out how the "FUNDING REQUIREMENTS" section of the present
staff report highlights the opacity of the Newport Beach City budget as presented to and
approved by the City Council.
The report says: "The budget includes $255,000 (01020202-841046, City Manager's
Office/Economic Development) in support for Signature Events and $60,000 (01005005-
841046, City Council) for Community and Charitable event support."
However, the City Manager's line item 01020202-841046 is listed in the Proposed Budget as a
$425,000 appropriation (page D18) and the City Council's line 01005005-841046 as a $125,000
item (page D3), both labeled as for "SPCDEPT EX" (SPECIAL DEPT EXPENSE NOC) in the
"SUPPLIES AND MATERIALS" category.
How is anyone to know that $255,000 of the $425,000, and $60,000 of the $125,000, for
"Supplies and Materials" are being approved for Community and Charitable event support? Or
what "Supplies and Materials" the remaining funds are being approved for?
June 12, 2018, Council Consent Calendar Comments - Jim Mosher Page 7 of 8
Charter Section 421 gives staff the authority to spend the money, without further Council action,
as "approved" in the budget. But that is not a very meaningful fiscal protection when the details
of what things are being approved for are not disclosed.
Items 5 and 6 on the present agenda (the announcements of intention to renew the CdM and
Restaurant BIDs) include additional charges of $40,000 each against City Manager's line item
01020202-841046. That would seem to leave $90,000 unspent. But does anyone know what
additional "special department expense" the Council is approving that to be spent on?
Regarding the substance of the staff recommendations, it is good to see most of the
recommendations are confined to waiving the special event fees the City would otherwise
charge. Nonetheless, however well meaning and competent the staff that makes these waiver
decisions, the impression is increasingly one of a return to cronyism and secretive backroom
deals.
I am particularly puzzled why the City would be waiving the fees for the Wine and Food Festival
(which I see receives additional support from Visit Newport Beach which the City seems to have
little or no control over). To the best of my knowledge the Wine and Food Festival is a private,
for-profit event that monopolizes the Civic Green for several days each year, and significantly
damages the grass, to boot. I would think we should be charging them extra to pay for the
damage and inconvenience.
And, not to be too cynical, but it would be nice if the staff report disclosed what event sponsors
had given free tickets to decision makers in return for their waivers or subsidies.
Item 21. Board and Commission Scheduled Vacancies - Confirmation
of Nominees
I have a real problem with the statement in the Discussion on page 21-2 of the staff report that
"Mayor Duffy Duffield established a Council Ad Hoc Appointments Committee comprised of
Mayor Pro Tem Will O'Neill, Council Member Kevin Muldoon, and Council Member Brad Avery."
I do not recall this "establishment" happening at any noticed public meeting. And I do not
believe the City Charter gives the Mayor any executive powers that can be exercised without
the concurrence of a majority of the Council, which concurrence can be granted only at such a
noticed public meeting. Indeed, in signing documents the Mayor is required to do the will of the
Council majority whether he agrees with it, or not.
Setting aside the question of whether the "Council Ad Hoc Appointments Committee" was
legally constituted or not by a private, unilateral action of the Mayor (I do not recall it being listed
on any City website or roster), the Committee appears to have ignored Council Policy A -l's
mandate requiring the presentation to the full Council of a minimum of two candidates
for each vacancy.
I understand there were no applications for appointment to the Building and Fire Board of
Appeal, the long absence of appeals to which is its own, separate story.
June 12, 2018, Council Consent Calendar Comments - Jim Mosher Page 8 of 8
And I don't know how many applications there were for the Council's appointment to the Civil
Service Board, for which only one incumbent nominee is being presented by the Committee to
the Council.
But I personally know there were a great many applicants for the three positions on the Harbor
Commission, yet only five nominees are being offered. I believe there should be six.
Beyond this (and noting that the Brown Act personnel exemption cannot be used for discussing
non-employee appointees), I believe the Council and the public would both be well served by
conducting the interviews for Board, Commission and Committee appointments in public.
Received After Agenda Printed
June 12, 2018
Non -Agenda Item
June 12, 2018, Non -Agenda Comment to City Council
The following comments regarding the Newport Beach City Council agenda are submitted by:
Jim Mosher (jimmosher(a)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229)
Item XV/l. PUBLIC COMMENT ON NON -AGENDA ITEM
City Manager Recruitment
Since the City Council is currently engaged in making one of the most important decisions a
council ever makes — namely, the hiring of a new city manager — and since the Brown Act
requires all discussion between members of, and actions by, a city council to occur at noticed
public meetings, it is disappointing that nothing regarding the city manager recruitment has been
noticed for discussion or action since May 8.
I am concerned that the Council has embarked on a deeply and inappropriately secretive
process, to the detriment of the community.
I believe a more open process is not only possible and desirable, but expected under our City
Charter.
My specific concerns are these:
1. On April 27 the City Clerk signed contract C-8550-1 with Roberts Consulting Group Inc.
a. The specifics of the contract do not appear to have been reviewed or approved by the
City Council, which, like the public, saw only a boilerplate prospectus presented at the
April 24 Council meeting (as part of that meeting's agenda Item 11)
b. The final contract does not appear to have been reviewed or signed by the
Mayor, even though that was the direction given to staff on April 24.
2. The contract called for "city approval" of the recruitment brochure that was posted on or
about May 24 as part of the call for the applications due to be submitted to Roberts
Consulting by June 25.
a. I am unable to find any evidence of City Council discussion or sign off on this brochure.
b. An online survey, since deleted, appeared on the City website from May 3 through May
18. 1 would be grateful for the extent to which the results of that survey were
incorporated into the brochure, but neither the hosts of the survey nor its results have
ever been publicly announced or discussed.
Note: a search of the City website reveals what appears to be a May 21 compilation
of the survey results in a "document 61099" posted on the City website, but not
linked to from any known page.
How the brochure, and the values it expresses, was created, and who approved
it, remains, therefore, a complete mystery to the public, and perhaps to the Council
— unless it was agreed to in private consultation with the recruiter in violation of the
Brown Act.
June 12, 2018, Council Non -Agenda Comments - Jim Mosher Page 2 of 3
3. The contract appears to call for Roberts Consulting Group to screen the applications
received, and to present only what in the recruiter's judgment are the "most
qualified" candidates to the Council for final consideration.
a. This might be regarded as an efficiency, but this approach is fundamentally
inconsistent with the City Council's duty under City Charter Section 500 to
screen all qualified parties known to them, which would include most of those
submitting applications to the recruiter.
4. In the contract, as in the prospectus, the recruiter extols the virtues of keeping the
names of the applicants, and therefore the entire interviewing process, secret until
the final appointment is announced. I disagree with this approach. I do not believe this is
what was contemplated in our Charter, and I think gauging the candidates'
interactions with the Newport Beach public is essential to a successful appointment.
5. Finally, I find it concerning that there is no page on the City website (at least that I can
find) informing the world that we are engaged in a City Manager recruitment and
detailing its current status and anticipated timeline, including opportunities for
public engagement.
Additional Information
Under Item 11 at its April 24, 2018, meeting, based on general prospectuses received from
three firms, the Council authorized the Mayor and City Clerk to sign an as -yet -to -be -determined
agreement with Roberts Consulting Group Inc. The resulting contract C-8550-1 appears to
have been signed by the City Clerk and Assistant City Clerk on April 27 with no obvious
involvement by the Mayor. Indeed, the contract appears to be more with, and under the control
of, the City Clerk than with the City Council.
Newport Beach committed to the Council -Manager form of government with Ordinance No. 575
in 1948, and the City Charter, adopted by voters six years later, in June 1954, is largely a
compact with the people as to how that form of government is expected to operate.
The hiring process for the City Manager is spelled out in Section 500, which places the following
specific duties on the elected City Council:
"In the selection of a City Manager the City Council shall screen all qualified applicants
and other qualified persons known by the Council to be available. It shall appoint by a
majority vote, the person that it believes to be best qualified on the basis of his or her
executive and administrative qualifications, with special reference to his or her experience in,
and his or her knowledge of, accepted practice in respect to the duties of the office as set
forth in this Charter." [emphasis added]
a passage that remains unchanged except for minor gender "corrections" approved as part of
Measure V in 2010.
June 12, 2018, Council Non -Agenda Comments - Jim Mosher Page 3 of 3
Although the Brown Act, as adopted by the California Legislature in 1953 (a year before the
Charter), allowed local agencies to hold "executive sessions to consider the employment or
dismissal of a public official or employee" (original Gov. Code Sec. 54957), Section 409 of the
newly minted City Charter assured the public that at least in Newport Beach City Council
meetings would all be held in the Council Chambers and all be open to the public (a provision
not watered down until Measure EE in 2012).
As a result, I believe the expectation was for a very open City Manager hiring process in
which all interested applicants would be announced, discussed and selected from
among by the Council in public.
But the present process, from what the public can understand of it, appears very different, with
an outside recruiter soliciting and screening the applications, and with the Council likely to in
secret discuss and select from among a few finalists provided to it by the recruiter — the public
learning only of the new manager after the decision has been made (and never knowing who
the alternatives might have been).
The argument seems to be that "good" candidates will be deterred from applying if they know
their current employer and their current public will learn about their wandering eye.
The counterarguments (aside from the likely inconsistency with our City Charter) are: first, that a
person to whom such secrecy is important will likely spend much of their time as City Manager
of Newport Beach secretly looking for a job at a still better place; and second, that the
candidate's reaction to being in the limelight and to being scrutinized by the public (as well as
the Newport Beach public's reaction to them) seem crucial pieces of information needed in the
hiring process. In addition, it puts needed additional eyes on the candidates, which may well
reveal information about them otherwise unknown to, and unconsidered by, the Council.
While reasonable minds may differ about the wisdom of advertising the names of city manager
applicants, the open meetings laws of six to eight states (Florida, Colorado, Minnesota,
Michigan, Louisiana, North Dakota and possibly Alabama and Utah) require not only the names
of applicants, but all public employment interviews to be conducted in public, yet they survive.
I personally feel the advantages of revealing the names of at least the finalists, and
conducting at least part of the interviews in public far outweigh the minor privacy
concerns such a process might implicate.
Thank you for your consideration of the above.