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HomeMy WebLinkAbout0 - Public CommentsOctober 8, 2013 City Council Agenda Item Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(a-)vahoo.com ), 2210 Private Road, Newport Beach 92660 (949 -548 -6229) STUDY SESSION Item 2. Updates to the Master Fee Schedule as it Relates to Fire Fees As the Council knows, last November they asked voters to amend City Charter Section 1114 to ban class claims against the City, a passage that is now known to be ineffective. At the last Council meeting we learned that the passage was added on the advice of the League of California Cities. The Council may wish to be aware that the current advice of the League's Revenue and Taxation Policy Committee is to "review all [new and] existing charges to ensure they conform to federal, state, and local requirements (remembering that local ordinances may now be deemed invalid where they conflict with state authority)." I do not expect any problem exists in that regard with respect to our fire fees, but it would seem wise to heed that counsel, for despite our new Charter language, if we charge a fee for something state or federal law does not allow a fee to be charged for, a class claim could be pursued for its refund. 1: ZICI NETA i71OWN10 Item 1. Minutes for the August 13, 2013 Study Session and Regular Meeting The passages in italics are from the draft minutes, with suggested changes shown in strikeout underline format. The page numbers refer to Volume 61. Page 289, under Item I, the 3:30 p.m. ROLL CALL is mentioned, but the result, which I believe was the same as that listed at the top of page 296, is not reportedPage 268, last paragraph before "XII ": "... the British 6etftsii Consul General..." Page 289, under Item 11.2 ( "OCTA Presentation "), paragraph 1, end of line 5: "He announced a workshop in the City of Tustin on September 25, 2013 with er'� a - °' -° a elected officials, stakeholders and students." Page 290, bold print under Item 3: "... since he lives within 500 -feet e# of the subject area." Page 291, under Item 4, paragraph 3, sentence 2: "He referenced the Lyons Lyon Homes property, ..." Page 291, last line: "He discussed ew the underutilization of the area ..." Page 292, paragraph 3 from end, line 4: "... and limiting the potential for commercial office in and industrial spaces." Page 292, paragraph 2 from end, line 3: "... and noted that the hangar Hangars project has October 8, 2013 Council agenda item comments - Jim Mosher Page 2 of 6 Page 293, paragraph 2: "Patrick Srater Strader. Star Trip Ventures, representing Mr. Saunders ...' Page 299, first full paragraph: "Scott Ayers Ehlers commented on Aralia Street parking problems..." Page 299, first paragraph under Item XVI, last line: "He thanked Bob �e 14 t Voit for funding this effort for the City." Page 300, motion before Item 9: "... to approve the Program Year 2012 -2013 CAPER; and c4 direct the City Manager or his designee to submit..." Page 301, motion before Item VIII, line 2 from end: "... and 2) adopt the 2014 -2021 Housing Element; and hl 3) direct staff to come back with a Resolution ..." Page 302, amended motion at bottom of page: the ordinance title inserted into the motion is, in my view, a convenient fiction. A quick review of the video recording of this meeting suggests the Clerk read the title of staff's proposed ordinance as indicated in the substitute motion reported at the top the page, but the title for the different proposed ordinance purportedly introduced by the amended motion was never discussed nor read by the Clerk. Indeed, the Mayor confusingly referred to the matter being voted upon as a beefed up version of Council member Gardner's "base motion," which, as reported at the bottom of page 301 had been "to not amend the Newport Beach Municipal Code." Item 3. Adoption of Ordinance No. 2013 -15 Amending Section 17.60.060 of the Newport Beach Municipal Code to Require Commercial Tidelands Users to Defend and Indemnify the City of Newport Beach 1. This is one of the rare instances in which the City Attorney allowed the Council to substantially modify the substance of an ordinance prepared by staff without a promise to bring back the revised text for introduction at the next meeting, and as a result, despite what the staff report and recommended action listed on the agenda say, I believe this item should at best be viewed as the introduction of new proposed ordinance, and not the second reading of a previously introduced one 2. 1 believe that bringing back for a "second reading" a text that differs markedly from the version available to the Council and public on the date of its "introduction" violates City Charter Section 412 which appears to contemplate that at the time of the vote to introduce an ordinance there will be a sufficiently accurate copy in existence to "become a part of the proceedings of such meeting in the custody of the City Clerk" subject only to possible subsequent "correction of typographical or clerical errors." It is that copy of the ordinance placed in the custody of the Clerk at the time of introduction that is supposed to come back for the second reading. Rewriting the title and deleting whole sections, including ones explaining the reason for the ordinance, after the meeting seem to me more than correction of clerical errors, especially when according to the video record of October 8, 2013 Council agenda item comments - Jim Mosher Page 3 of 6 the September 24 meeting the Council gave no clear direction as to precisely what sections it wanted deleted. Leaving that to the discretion of staff does not seem to me compliant with our Charter, nor even with the rules that would apply to a general law city. 3. Setting aside the question of whether the City Attorney violated the City Charter by not asking to bring back a revised ordinance for introduction at the present meeting, this episode seems to me to well illustrate the pitfalls of not following the cautious prescribed process, for I don't think the Council, with its suggested on- the -fly repairs to staff's proposal, got the ordinance "right." In particular, in the original draft, the City Attorney had recommended adding not one, but two "clarifications' to Section 17.60.060. In addition to adding the indemnity clause as Subsection 17.60.060(F) — the present draft ordinance — he had recommended adding the following underlined language to Subsection 17.60.060(E): "E. Commercial uses provided under this Title 17 are exempt from any provision requiring involvement of the owner or long -term lessee of an abutting upland property. This Subsection's sole purpose is to allow a person to apply for a commercial pier permit or lease in front of abutting upland property not owned or leased by the person applying for the commercial pier permit or lease." 4. Although the reason for this change was not clearly explained in the draft ordinance or in the staff report, the Assistant City Attorney said on September 24 that the modification to Subsection 17.60.060(E) was intended to clarify something that was "already in the Municipal Code' (and, by implication, had been there for a long time). I find that a bit disingenuous since the non - underlined part, whatever it is intended to mean, was actually added to the Code for the first time by the present Council in January as part of Ordinance 2013 -1 (the conversion from dock permits to rental or lease agreements) without explanation or public discussion. The insertion can be seen on page 25 of the 27 page staff report presented to Council on January 22, 2013, where it applies to all matters involving Public Trust Lands. 5. 1 have no idea what January's insertion of Subsection 17.60.060(E) was intended to accomplish, or how the clarifying language clarifies it, but I do know John Vallely is using this new, and perhaps inadvertently added, clause as the centerpiece of his lawsuit against the City regarding his pier at 508 South Bay Front Avenue (Orange County Superior Court Case No. 30- 2013 - 00677168- CU- PT -CJC), arguing, rather reasonably, that it says that if a pier is "commercial" (whether encroaching or not) its impact on neighboring properties cannot be considered, presumably even if it impacts a public property. I think this is an issue the Council needs to deal with, and if no explanation of why Subsection 17.60.060(E) was added can be offered, I would suggest that it be deleted in its entirety. 6. 1 also believe the Assistant City Attorney gave the Council poor direction when he assured the three who voted for it at the September 24 meeting that if adopted the draft ordinance they had prepared would simply move the Harbor Commission's discretion over transferring permits for encroaching piers to the Harbor Resources Manager when October 8, 2013 Council agenda item comments - Jim Mosher Page 4 of 6 the transfer was interfamily, and that if circumstances dictated it, the Harbor Resources Manager could still deny the request, subject to appeal, just as the Harbor Commission can at present. This is simply not true. The draft changes to Subsection 17.35.020(F) made interfamily transfers a purely administrative act, which the Harbor Resources Manager (or City Manager) would be required to grant "in accordance with Subsection 17.60.030(C)(4)" — and that subsection limits the grounds for denial to an inspection "for compliance with the City's minimum plumbing, electrical and structural requirements, and the conditions of the existing permit," and any non - compliance could presumably be corrected, after which the transfer would have to be granted. And one assumes that on appeal the only matters that could be considered would be whether the compliance with those standards had been accurately assessed, not whether the transfer was a good or bad idea. That would entirely vitiate the original intent to the City's policy, which has since 1967 been that the piers that encroach in such a way as to have a negative impact on neighboring uses should be gradually removed from the harbor. Item 11. Response to Ralph M. Brown Act Allegations 1. I find it curious that the staff report does not anywhere reveal that I am the author of the letter it is responding to, nor provide a copy of that letter so the Council can see the allegations in context; nor anywhere mention the receipt of a second letter on the same day alleging a considerably more serious violation of the Brown Act in which a majority of the Council's three member Finance Committee apparently discussed the financial aspects of the trash outsourcing proposals without a noticed public meeting. 2. 1 agree with staff that the unconditional commitment process added to the Brown Act in January provides an interesting new way to "conserve limited public resources," and in my view, it is a welcome avenue to improve public processes. 3. As a non - lawyer I fail to see how the Council's approval of the unconditional commitment letter would "immunize" the City against litigation, nor can I see it as "a statutory method of 'agreeing to disagree. "' The proposed letter responds to a single charge: namely that a failure to orally announce in open session the topics of a closed session meeting violates California Government Code Section 54957.7(a). My understanding is that by approving the letter the Council, without conceding whether the absence of such announcements was a violation or not, is positively agreeing (not "agreeing to disagree') to make such an announcement before all future closed sessions. If it chooses to approve the letter, the Council will bar me from suing to have that issue resolved as long as the Council abides by the letter, but under Section 54960.2(d) any commitment made in the letter will become in effect a local, and fully enforceable, extension of the Brown Act. So the moment the Council adjourns to closed session without orally announcing the topics it proposes to discuss, I am free to sue, without any further ado, both to have the question of whether the absence of the announcements was a violation of Section 54957.7(a) resolved by a court and for the separate and equally serious violation of the promise made in the letter. The letter, by itself, does not immunize the City. Only following the commitment made in the letter does that. October 8, 2013 Council agenda item comments - Jim Mosher Page 5 of 6 4. 1 naturally disagree with staff's characterization of what it terms Allegations Two through Four as being "largely without merit." I would not have submitted a cease and desist letter if I thought they were. At least in my view, the author of the staff report misses the point of those allegations, which center on a single closed session item in which the Mayor apparently asked his fellow Council members to approve an agreement he later said in open session he had personally worked out with the trash collection employees. And by failing to address them in the proposed unconditional commitment letter the author is failing to in any way immunize the City from litigation over that matter. In fact he is inviting litigation, since the absence of a response allows litigation. 5. Mindful that since passage of Proposition 59 in 2004, the minimal standards of the Brown Act are required to be liberally construed when they favor openness and narrowly interpreted when they limit public access, I think the Council members would be well advised to ask to see the letter(s) staff is responding to, and decide for themselves whether the allegations are "without merit," or alternatively if a higher standard of transparency would not be good public policy in Newport Beach. 6. Without attempting to repeat the cease and desist letter, and with the understanding the public does not know what actually happened in the closed session, the three unaddressed allegations focus on the following issues: a. Newport Beach appears to have been routinely noticing closed conferences with its labor negotiators regarding all ten employee bargaining organizations, independent of whether that accurately reflects what is actually planned to be discussed or not. In the instant case, as later revealed in open session, even one of the Council members was apparently completely unaware that the actual topic of conversation was going to be the closed door approval of an agreement worked out by the Mayor with the City's refuse collectors. b. The Brown Act closed session exception of Section 54957.6 exists as part of a larger formal system of public employee labor negotiation through designated negotiators on both sides. The Mayor is not one of the designated negotiators, and it is highly questionable whether an agreement worked out by him outside the formal system of negotiation is a valid topic for a closed session under any exception, particularly one advertised as a conference with the negotiators. In many jurisdictions, going around the negotiators on either side is regarded as "direct dealing" and an "unfair labor practice." It also raises questions of compliance with City Charter Section 406, which prohibits Council members from individually meddling in the administrative affairs of the City (the refuse employees work for the City manager, not the Council). c. The subject agreement (which can now be found appended to Contract C -2065) appears to have been pre- approved by the employee's representatives the day before the closed session, and was awaiting only the signatures of the Mayor and City Manager. Despite the passages cited by the author of the staff report, the Brown Act is unclear about the circumstances under which approval of a labor contract can be granted as part of a "conference with labor negotiators" October 8, 2013 Council agenda item comments - Jim Mosher Page 6 of 6 ( "Closed sessions of a legislative body of a local agency, as permitted in this section, shall be for the purpose of reviewing its position and instructing the local agency's designated representatives "), and equally importantly it seems to have been the practice in Newport Beach to defer final approval of labor agreements, at least at the Council's end, to a public meeting with public input. It is therefore difficult, at least for me, to see a public interest served by secret approval, or why the Council would be unwilling to commit to a policy of always granting final approval in open session with benefit of public input.