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HomeMy WebLinkAbout00 - Written CommentsApril 22, 2014, 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) Item SS3. Records Retention Schedules Based on the staff report posted in advance of the Study Session, this item (originally promised to "be brought before Council by the beginning of March ") will provide the public with a rare glimpse of at least a draft version of the City's privately copyrighted Records Retention Schedule, and present the City Council with a rather extensive set of redlined changes to it. Since the limited Discussion in the staff report focuses solely on retention of the audio recordings of meetings, the Council (and public) may be missing some of the context of this, including the many ways in which the City falls short of what might be expected of a "gold standard" City. From the public's perspective, the ability to freely and efficiently access City records, without imposing on City staff, is at least as important as physically retaining the records. In 2012 and much of 2013, City staff, particularly in the Planning Division, was making progress towards this goal, by providing publicly visible links on the City website to the recordings of a variety of meetings (which had always existed on the City's servers, but had not been publicly visible). At one point, these included, in addition to the City Council, the meetings of the Planning Commission, Zoning Administrator, Hearing Officer, the Land Use Element Amendment Advisory Committee and the Balboa Village Advisory Committee. Other public bodies, such as the Harbor and the Parks, Beaches and Recreation Commissions, were hopeful that the audio recordings of their meetings would be made visible as well, and Councilwoman Gardner had even suggested recording some Board and Commission meetings in video for occasional broadcast. Such recordings, whether audio or video, are desirable both because they provide a better and more complete record than written minutes (including the verbal explanation of PowerPoint slides, which are often retained as part of the agenda packet), but also because they can be posted immediately after the meeting, allowing those that cannot attend in person to know what happened without having to wait for the minutes to come out a month or more later. They also allow the minutes to shorter than they might otherwise need to be (a good example being the LUEAAC minutes, which provide almost no explanation of what was said, or by whom — and which are particularly ironic since they were all approved "as supplemented by the audio tape" even though City staff now proposes to destroy them, either pursuant to the current Records Retention Schedule or a future one). Much work remained to be done, including creating a coherent, comprehensive database of meeting minutes that could be computer searched (such exists, at the moment, only for the City Council, Planning Commission and Zoning Administrator) to determine if a topic had been discussed. But things seemed hopeful in terms of moving towards increased transparency an accessibility. However, starting in late November and early December, 2013, instead of new links appearing on the City website, the old ones began disappearing (even though that did not necessarily mean the actual recording had been deleted from its former location). By January, 2014, the April 22, 2014, Council agenda item comments - Jim Mosher Page 2 of 6 publicly visible links had disappeared to all but the last two years of recordings of the Planning Commission. All others were gone. And more recently, the essential searchable "Granicus" database of City Council meeting videos going back to 2005 (as best I can remember) had disappeared as well (formerly at http:// www .newr)ortbeachca.gov /index.asl)x ?page =701 a page that no longer exists), to be replaced by a less searchable and less well linked video database (only agendas, not minutes, can be searched and the user has to find the "hit" within the agenda on their own) going back, at least temporarily, only to May 2013, and not allowing the files to be downloaded in .MP3 or .MP4 format for off -line review. To view one of the pre -2013 videos, members of the public (who even know it is possible) have to now personally ask the City Clerk for a link to its location on the City servers. At least in my view, this is not progress, and it is not what one would expect of a "gold standard" City. More generally, the staff report glosses over the fact that prior to 2011, the City's Records Retention Schedule was controlled by, and publicly reviewed by, the City Council as would seem to be prudently required by state law (California Government Code Section 34090). Wittingly or unwittingly, in Section 3 of Resolution 2011 -18 the Council turned over future control of the schedule to City staff: "the City Clerk, City Manager, and City Attorney, amendments are hereby authorized to be made to the Records Retention Schedules without further action by the City Council of the City of Newport Beach." In other words, even though state law requires legislative approval of the destruction of records, presumably giving the public some confidence that their elected officials are in charge (in former times, lists of the exact documents proposed to be destroyed were explicitly brought before the Council for public approval before anything was done with them), in Newport Beach the City Council has given City staff carte blanche to decide what should be destroyed, and when. So under Resolution 2011 -18, bringing the proposed changes to the Council for public review is a courtesy, not a Council requirement. Moreover, even with Council consent, Government Code Section 34090 et seq. does not appear to allow the destruction of the originals of any records "less than two years old" (34090(d)). Although Section 54953.5.(b) in the Brown Act overrides this restriction for recordings of public meetings, none of the state laws allowing destruction of public records are commands to actually destroy them, and even if the latitude for charter cities is wider, it is difficult to understand why a "gold standard" City would allow such destruction. In addition, the City Clerk's implication that retention of audio (or video) recordings is economically burdensome because the "City may purchase additional storage at an annual cost of $100 per 20 GB of storage" is highly misleading. The going price for hard drive storage is currently about $0.04 /GB. At that rate, 20 GB of storage should cost the City about 80 cents (not $100), and that should be a one -time capital cost, not an annual one. Next, if one actually looks at the proposed Retention Schedule, aside from the obvious question of why the public should allow such a thing to be copyrighted by a private outside entity (and whether the "2003- 2006" copyright is still applicable) one has to wonder if anyone actually reads these things. The author seems to have some difficulty distinguishing between the concepts of "retention" and "disposition," apparently taking them to be synonyms. According to the final page, the column labeled "Active" defines only one thing: "How long the file remains in the April 22, 2014, Council agenda item comments - Jim Mosher Page 3 of 6 immediate office area." Some say things such as 1 year" or "Life of equipment," which make some sense (barring the state's 2 year requirement for retaining originals). Others say things like "Upon Completion" or "When No Longer Required," which do not. Taken literally, they would mean the documents should be kept in the office only when they have become unneeded. I assume the consultant meant to say something like "Until completed" or "Until no longer required "? Finally, I am not convinced the City Council is seeing, in the redlining, an accurate copy of the last Records Retention Schedule they approved in 2011. Of course, since it is copyrighted it does not exist on the City's servers (at least not at a location the public knows about), but I seem to recall checking it when the public links to audio recordings began disappearing, and noting with some relief that (and although it would not protect the LUEAAC recordings) the rule of being able to destroy audio recordings as soon as the minutes have been approved applied only to committees (Page CW -5 /Class CW -016, or its equivalent). My recollection is that at that time page CW -5 /class CW -017 for all Boards and Commissions (not just the Planning Commission) said 2 years. And I'm quite sure the Planning Commission rule (now on page PL- 4 /class PL -021) said 2 years — explaining, at least in my mind, why the publicly visible links to Planning Commission meetings less than 2 years old had been retained, while the older ones had disappeared. Yet the copy being presented to the City Council at the present Study Session implies the rule under the current Records Retention Schedule is to keep only for "30 days or after Minutes are approved (whichever is longer)." Either my recollection is wrong, or staff has unilaterally changed the policy prior to the presently proposed changes, as Resolution 2011 -18 gives them free reign to do. And I cannot close without highlighting the most extraordinary aspect of the current proposal, as detailed in the two numbered points on page 2 of the staff report. If I am understanding them correctly, City staff is alerting the Council that in the next Resolution, they intent to go beyond Resolution 2011 -18 by giving themselves the authority not only to change the schedule without Council review, but also to "correct" any City Council policies that contradict the rules they invent for themselves. Authorizing City staff to act in a way contrary to existing Council policy is a concept whose virtue I have yet to grasp. April 22, 2014, Council agenda item comments - Jim Mosher Page 4 of 6 Item 1. Minutes for the April 8, 2014 Study Session and Regular Meeting The page numbers below refer to Volume 61. The passages in italics are from the staff report, with suggested changes shown in stfikeeut underline format. 1. Page 521, Section 11, line 1: "Jim Mosher commented on the City video service contractina to Newport Beach and Company..." 2. Page 524, paragraph 2: "Council Member Henn added there was a similar recommendation made in the X— ULI/TAP report..." [ULI/TAP = Urban Land Institute /Technical Assistance Panel] 3. Page 524, paragraph 6 from end: "In response to Council Member Gardner's inquiry regarding the possibility of the Balboa Island Merchants nom' Association contributing to improvements, Mayor Pro Tern Selich noted that he can ask but the concept he presented was for the City to fund it." [The Balboa Island Improvement Association is a kind of civic league involving all island property owners that has existed since at least 1918. Council Member Gardner's reference was to a "merchants association" that the City gives $40,000 a year to. The official name of that group, or at least the non - profit accepting the money referred to, appears to be Balboa Island Marketing Inc.l 4. Page 524, paragraph 3 from end: "Council Member Henn commented en that the availability of the reserves enables the City to take advantage of matching grant opportunities; allowing the City to take advantage of leveraging our money with other agency monies." [alternatively, "on" could be retained and "enables" changed to "enabling "] 5. Page 532, paragraph 1, sentence 3: "He stated that without an actual plan it is difficult to determine the configuration, and that a mixed -use project would require a site development review which requires Planning Commission approval." 6. Page 532, paragraph 2: "Council Member Curry read #rem a letter received from the U.S. Postal Service into the record, ..." [or, more accurately, "read a portion of a letter'] 7. Page 533, paragraph 3: "Community Development Director Brandt suggested that an additional option would be asking the applicant if they would consider withdrawing the application at this point and asking for a specified time for the continuance to address some of the issues raised by Council." Item 3. 191 Riverside Avenue Land Use and Zoning Designations Amendments I hope the Council will proceed, as previously proposed, to deny changing the "Public Facility" designation for this parcel. While that may not guarantee it will continue to be rented as a U.S. Post Office, to me the decision is less complicated than the findings articulated in the proposed Resolution of Denial might imply: the property owner (who I thought was the applicant, "Gensler," but is possibly someone else) presumably purchased the property knowing its use was restricted to "Public Facility." To the best of my knowledge, the City Council has the power to impose such restrictions, and has no obligation to grant requests for other uses, any more than if I asked that the residential designation of my parcel be changed so I could build a hotel on it. April 22, 2014, Council agenda item comments - Jim Mosher Page 5 of 6 Items 7 & 8: Reject All Bids (Storm Drain and Piers) It is good to see Public Works staff rethinking these bids so as to obtain a more reasonable price for City taxpayers. Item 9. Semeniuk Slough Dredging Project I have the impression some confusion has arisen recently about the true ownership of what had previously thought to be City owned portions of the Slough. That has not been publicly discussed in any clear way, and I don't know if it would affect the proper amount of the City contribution towards this project. The "Abstract" to the staff report implies taxpayers will be paying for preparation of "easement documents," but a quick computer search of the report and attachments finds no further explanation of what that is about. Item 11. Temporary Employment Agreement - Planner It might have been helpful for the staff report to reveal why this matter was continued from the April 8 meeting, and how the present contract differs from the one offered then. I am unable to detect any substantial difference. Item 12. Appointment by Mayor of Ad Hoc Appointments Committee It is good to see an affirmation of the Mayor's appointments to this Committee coming before the Council once again. Several recent appointments have been made based on the recommendations of an Ad Hoc Appointments Committee appointed by the Mayor without Council ratification. At least in my view, that conflicts with the concept in our City Charter that the powers of the City are vested in the Council as a whole, and Mayor's individual powers are largely ceremonial. Item 13. Direction to Staff on One Issue In his emailed "Insiders Guide" to the Council Meeting, issued on April 17 at 5:00 PM, the City Manager mentions in connection with this item (which has to do with the duration of parking restrictions on street sweeping days), that "It is a little -known fact that you CAN park in the road immediately after the sweeper goes by, even if the four hours are not complete yet." I am curious if this is part of the current Municipal Code (as the lack of such a provision seemed to be at least part of the reason for the request)? I am also curious if the "Insiders Guide" is distributed to a majority of the City Council members, in which case should it not be made part of the readily accessible public record for that meeting, like other "late communications "? April 22, 2014, Council agenda item comments - Jim Mosher Page 6 of 6 Item 14. Quarterly Business Report - October through December 2013 I would have many more comments on this if I had time to put them in writing, but I do not. The Council as a whole may wish to know that the content of the report was not, to the best of my knowledge, discussed by the Council's three - member Finance Committee, at least publicly If it is not otherwise announced, the Council will undoubtedly be interested in the announcement on page 7 that the tentative City budget for FY2014 -5 will apparently be posted for public review on April 23, the day after the present Council meeting. Regarding the graphic on page 8 illustrating the planned implementation of the Enterprise Resource Planning software, my impression had been that the scope of the software was more all- encompassing, and would tie together the efforts of all the City departments, not just the few functions listed. Regarding the Lido House Hotel report on page 43, the division of entitlement costs between City and developer lacks clarity, which seems of some public interest given the many other developments on non - City -owned properties where taxpayers are being asked to pay the cost of General Plan entitlements and environmental analysis in connection with the proposed Land Use Element Amendment ballot measure.