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HomeMy WebLinkAbout00 - Non-Agenda Item - CorrespondenceReceived After Agenda Printed July 9, 2019 Non- Agenda Item July 9, 2019, Council Non -agenda Comments The following comments on matters not 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) Closed Sessions On May 11, 2019, the City received a "Cure or Correct" letter from Susan Skinner regarding its closed sessions, based largely on misunderstandings of the Brown Act, for which she apologized in a public comment on June 11 (see page 126 of the minutes). Since I have shared some of the same concerns as Ms. Skinner, I was privileged to be invited to attend the private June 7 meeting at which City Attorney Harp explained his understanding of the Brown Act closed session noticing and reporting requirements. As Mr. Harp correctly pointed out, the Brown Act allows a number of anomalous situations. One of those is the provision for closed session discussion of the possibility of initiating litigation, Gov. Code Section 54956.9(d)(4), for which the minimum reporting requirement per Section 54954.59(c) consists merely of listing the "number of potential cases," and for which the post - session reporting requirements, Section 54957.1(a)(2) are vague — likely requiring no report unless a decision to initiate was actually made. This interpretation leads to awkward situations, in which the City Council is compelled to meet in open session for the purpose of inviting public comment on the closed session, but without giving the public any hint of what topic they are being invited to comment on — an absurd situation of the sort which the law generally tries to avoid. Although legally permissible, and common in other jurisdictions as well, the question remains of whether this is good public policy, as it creates the impression — particularly in the absence of reports out -- that the closed session provisions of the Brown Act are being improperly used as cover to privately discuss matters deemed sensitive. From January 24, 2017, to May 14, 2019, Ms. Skinner had noted 23 instances in which the Council announced closed sessions to discuss "initiation of litigation" with no indication of the subject of the possible litigation. Since May 14, Section 54956.9(d)(4) has been invoked three more times with "no reportable action" (one of those being a special June 13 meeting called for the Section 54956.9(d)(4) purpose, only, but subsequently cancelled). Of those, there only 3 reports of action taken, and one of those did result in initiation of litigation, but rather direction for the City Attorney to request information from the Newport Aquatic Center. This creates an atmosphere of distrust. Some assume the situation at the Newport Aquatic Center has been further discussed in closed session, but no one knows for sure (or why the letters and responses would not have been discussed publicly). Similarly, since the City Attorney assured the public at one of the City's Aviation Committee meetings (April 15?) that the City was prepared to sue the County in the event of an unfavorable vote by the Board of Supervisors on the John Wayne Airport General Aviation Improvement July 9, 2019, City Council Non -Agenda Comments - Jim Mosher Page 2 of 5 Program (see separate discussion, below), some guess the Council has discussed the GAIP in closed session (since it has not appreciably done so in open session). But again, no one knows. In addition to the lack of public disclosure, meetings in closed session are of concern because the Council will be making decisions based on what is likely to be a very one-sided explanation of an issue. In my view, the closed session noticing and reporting requirements that are appropriate for Newport Beach, and the purposes for which Section 54956.9(d)(4) should be used, are matters of public policy. Policy direction regarding them should be discussed and arrived at in public, not left to the discretion of the City Attorney. Some California cities have adopted "Sunshine Ordinances" to create a better sense of public involvement. In our case, improvements to the protocols for closed sessions could simply be added to City Council Policy A-1. In this connection, it might be noted that disclosure of the topics being considered for initiation of litigation were once routinely disclosed on the closed session agendas in Newport Beach, and suppressed only when doing so would not harm the City (see, as a somewhat random example, the June 9, 2009, minutes, Items II.C). This caused no obvious problems. It might further be noted that Florida (the "Sunshine State") allows city councils to hold closed sessions for no purpose other than to discuss with their attorney actual ongoing litigation (with a court -assigned number), and those sessions must be attended by a court -type reporter with the full transcript being disclosed when the case settles (in California the content of closed session discussions is never disclosed). We may not want to be Florida, but somehow Florida survives. Some suggestions for Newport Beach: Even if not legally required, include the topic of closed sessions when doing so would not jeopardize the City's position. 2. Instruct the City Attorney to report when the Council has directed him not to initiate litigation (and what the vote was on the matter). That does not appear to be required by the Brown Act, but it seems as important to the public purse as a decision to litigate. 3. Create and post a publicly accessible log of the litigation the City is involved in, somewhat as the San Diego City Attorney does, but hopefully including an indication of whether it was initiated by the Council (and when) as well as whether the matter has settled (with a link to the terms). July 9, 2019, City Council Non -Agenda Comments - Jim Mosher Page 3 of 5 BCC Appointment Process At the June 11 and 25 Council meetings, I raised a number of concerns about this year's process of appointment to the City's boards and commissions. Among the concerns: 1. Acceptance of a single nominee from the Civil Service Board where the City Charter requires three. 2. Inadequate number of qualified nominees (in the view of the Ad Hoc Nominating Committee) for other positions, including the Planning and Harbor Commissions. 3. Reappointment for a third term of the Chair of the City Arts Commission based on a letter submitted by the remaining Commissioners in violation of the Brown Act. It was particularly striking to me that the Council seemed to have had more applications to choose from when it considered filling a single unscheduled vacancy on the Planning Commission in November than it did when filling two openings this month. As someone who has had applications for appointment in for many years without any result, I believe part of the fault lies with the instruction to the City Clerk in the second paragraph under "Qualifications" on page 3 of City Council Policy A-2 to continuously cull the applications file, which I understand is done monthly (quietly destroying those submitted more than two years ago) — as well as to enquire about continued availability. Although unsuccessful applicants are frequently told to "keep trying," what happens is the first year after rejection for a position the applicant is contacted by the Clerk's Office asking if they are still interested, which gives them the false impression the City is watching over their candidacy. The second year, without further contact, their application is quietly discarded and, possibly unknown to them, they are no longer in the running even though they may imagine they are. I suspect we lose good people in this way. I also think relegating the screening of candidates to a committee meeting in private is not a particularly good idea. Some might assume this is necessary to preserve the candidates' privacy, but it might be noted the Brown Act provides no exemption allowing a Council to discuss candidates for non-employee positions in private. Newport's "Ad Hoc Appointments Committee" may have been created as a work -around, since ad hoc advisory committees are not subject to the Brown Act. It might also be noted that in contrast to Newport Beach, before making appointment decisions, the full Laguna Beach City Council provides the courtesy of interviewing all applicants in public (see, for example, their May 7, 2019, video). The full Costa Mesa City Council does this as well (see, for example, their January 31, 2017, video). This may seem burdensome on the Council members, but I think it is in many ways a better process than we have. It also reveals whether the candidates are comfortable in a public setting, which as board or commission appointees they will need to be. As to the reappointment of the termed -out City Arts Commission Chair, we were told the receipt of a letter (reproduced on page 21-38 of the June 25, 2019, agenda packet) from the remainder of the Commissioners requesting the reappointment was crucial to the Ad Hoc Committee's decision to break precedent. It defies belief that the Committee did not recognize this letter not July 9, 2019, City Council Non -Agenda Comments - Jim Mosher Page 4 of 5 so much as an endorsement but as a flagrant violation of the Brown Act: it states that (apparently outside of any public meeting) five of the Arts Commissioners had discussed among themselves their choice for their next Chair and had selected the termed -out member. This suggests much of the Commission's business is conducted in a similar manner, especially when one considers it consists largely of an agglomeration of non -publicly -meeting "ad hoc" committees on each of which the termed -out Chair serves. Suggested improvements: 1. Rather than discarding applications two years from the date of submission, amend Policy A-2 to direct the Clerk to discard them: a. Only when the applicant has positively indicated they are no longer interested in the position; or b. Two years after the last time they positively indicated they were still interested. 2. Alternatively, rather than quietly discarding applications after two years, send the applicant a message that their application has expired and reminding them they need to reapply if still interested. 3. Notice the interview meetings and open them to the public. 4. Direct the City Attorney to re-educate the City Arts Commission (and perhaps the Council, as well) in Brown Act requirements. The on-line ethics training that the City uses (which I understand consists of little more than a requirement to wait in front of a computer monitor until the clock indicates two hours have elapsed) does not seem to be doing the trick. John Wayne Airport General Aviation Improvement Program On June 25, 2019, the Orange County Board of Supervisors unanimously adopted a proposal for the John Wayne Airport General Aviation Improvement Program that had been put forward by Supervisor Michelle Steel dated June 20, which the City reportedly became aware of on June 24. Although not the outcome the City had initially advocated for, at the June 25 meeting, Mayor Dixon expressed "the City's" support, appreciation and "approval" of the compromise result. An acquaintance of mine who wishes to remain anonymous asked me how the City's position had been arrived at. I could not provide an answer, and am a bit concerned that the decisions about what is good to happen at John Wayne Airport are being made in private, without any public process. The Mayor's authority to speak on behalf of "the City" derives from Section 404 of the City Charter: "The Mayor shall have the primary but not exclusive responsibility for interpreting the policies, programs and needs of the City government to the people, and, as occasion requires, the Mayor may inform the people of any change in policy or program," but I do not believe that power to "interpret" City policies to the people includes the power to unilaterally declare things to be City policy unless they have been endorsed as such by a majority of the full Council. July 9, 2019, City Council Non -Agenda Comments - Jim Mosher Page 5 of 5 The City has a Council -approved Aviation Policy A-17 (last updated in 2015), and beyond its generalized statements about General Aviation, the Council has publicly discussed the GAIP exactly once. That was Item 18 at the end of a long meeting on March 12, 2019. As can be seen from the minutes, Item 18 resulted in the Council unanimously authorizing Mayor Dixon to send a letter to the Board of Supervisors recommending they adopt what was called "Alternative 3." The GAIP was scheduled to return to the Council agenda as Item 14 on May 28, 2019. That item, which the City Manager expected to be approved without discussion or comment on the "Consent Calendar," would have authorized the Mayor to send a new letter recommending adoption of Supervisor Do's proposal from May 7 and further authorized Mayor Dixon and the City Manager to support whatever other alternative they thought best aligned with Council Policy A-17. However, as can be seen from the minutes, that item was removed from the agenda "until the City receives more specific information regarding the revised GAIP from the Board of Supervisor's June25, 2019 meeting," and as a result, the Council never voted on this proposal. Hence no authorization was given to anyone to do anything about this beyond the March 12 letter in support of Alternative 3 In view of all this, it would have seemed appropriate for the Mayor to have said at the June 25 BOS meeting that Supervisor Steel's compromise sounded intriguing, but she would need more time to get an opinion about it from the full City Council. It remains disturbingly possible that in one of the many closed sessions held without public disclosure of the topic being discussed the Council could have discussed the GAIP and given broad direction to the Mayor to negotiate with the Supervisors, of the sort that had been contemplated in the never -publicly -acted -upon Item 14 from May 28, or that on June 24 the Mayor privately consulted with a majority of the Council to know their response to the Steel proposal. Either of those would be improper. Closed sessions of the sort that could have been used for this (see the first topic, above) are for instructing the City Attorney regarding decisions to litigate. They are not for formulating new public policy. And private polling of the Council is prohibited by the Brown Act. It is also possible options were discussed and direction given by the City's secretive "aviation messaging committee," but that would be even more disturbing since it is a group with no formal existence. As to the Steel proposal itself, I understand it is pretty much what the SoCal Pilots were pushing for, but I don't think the SoCal Pilots care a lot about the number of jets as long as there are hangars for the piston planes. Unlike the Do proposal to place a hard limit on the number of based jets -- an idea that was not further publicly discussed by the BOS despite direction from the Chair on May 7 to come back with an analysis of it -- I have no idea how many private jets the Steel proposal will allow to be based at or operate through JWA. I'm not even sure it coincides with what was evaluated in the EIR. I believe it merited much more open, public discussion before "the City" took a position on it, and I do not see why the City could not have asked the BOS to delay their decision long enough to allow that to occur.