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HomeMy WebLinkAbout18 - City Council Policy Update 2017 - CorrespondenceRecieved After Agenda Printed August 8,2017 Item No. 18 August 8, 20175 City Council Item 18 Comments The following comments on an item on the Newport Beach City Council agenda are submitted by: Jim Mosher (jimmosher(ciyahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 18. City Council Policy Update 2017 General Comments Considering that the ad hoc committee, and its support staff, has been working on this for five to seven months, it seems a bit unrealistic that the remaining Council members and public could thoughtfully review and digest the 337 page result in the five days from its first public release on Thursday afternoon, August 3, to the meeting date on August 8, especially when the full agenda packet for August 8 includes another 532 pages (on other matters) to review. 2. One might wonder why this did not merit a study session for review prior to adoption, or why the proposed changes could not have been metered out in digestible chunks over a series of Council meetings. 3. One also has to wonder why the Council is being asked to adopt changes to policies affecting boards, commissions and committees that have not been publicly reviewed or commented upon by the affected BCC's, including some that have a City Charter duty to advise the Council and serve as the public forum for discussion of those policies. For example, the Parks, Beaches and Recreation Commission previously engaged in a long public review of some of the "G" policies (and earlier some of the "B" ones), with recommendations to the Council that were subsequently adopted. It seems strange the Ad Hoc Committee is now asking the full Council to make changes to many of "B" and "G" policies with no public review at all by PB&R. 4. The report takes understandable pride in reducing the number of policies, pages and words. However, it should be kept in mind that eliminating words and pages is not always the same as making policies better or more easily understood, and many of these policies are sorely in need of substantive improvement and clarification, which in some cases may require more words, not less. Moreover, of the 16 policies recommended for deletion, six of the "I" policies are not actually being deleted or reduced in size, but are instead being recognized as administrative policies separately set by the Board of Library Trustees staff (with existing policies 1-1 and 1-7 apparently, and without any explanation I can find, not being recognized as BLT policies), much as the City Manager, under our Charter, is empowered to set policies to be followed by his administrative. 5. A centerpiece of the proposed revision seems to be the consolidation of existing procedural policies regarding the City Council and the Boards, Commissions and Committees. To the extent that is a good idea, it would seem to me there are other groups of policies that would benefit from consolidation. I'm not sure I understand why the recommendation is to consolidate some, but not others. August 8, 2017, City Council Item 18 comments - Jim Mosher Page 2 of 5 6. The proposed complete deletion of Policy D-3 ("Council Policy Review") — the very policy that provided the impetus for the present review — is especially puzzling. While Policy D- 3 has been largely ignored in recent years, it has at least led to a staff review of the Policy Manual every couple of years. Deleting the policy that led to the present proposal seems a bit like an advancing or retreating army (I'm not sure which one this is) burning the bridges behind it. Without a policy of some sort providing a continuing impetus, I see little likelihood of future reviews of the Manual happening at all. 7. While well meaning, the review does not address a number of endemic shortcomings in the City Council Policy Manual. Among those I can think of: a. The policies should be written in a uniform internal format so that a particular passage in a particular policy can be easily and unambiguously cited. The present policies frequently make this difficult by containing passages with the same lettered designation on different pages. The proposed new consolidated Policies A-1 and A-2 continue that unfortunate tradition. b. I believe the City should maintain a registry of changes, so throughout the history of a policy future readers can know exactly what was changed, when, and why. Although the present policies contain a list of revision dates, discovering what was changed on those dates is cumbersome at best, and generally impossible prior to 2000 or so, since the materials supporting Council agendas from those dates do not seem to have been retained. c. The Policy Manual is sorely in need of an index (as the printed Municipal Code once had), so one has a better chance of finding where a particular issue is addressed in the welter of policies. d. Similarly, I believe the complete Manual should be posted or available in a searchable format, so that a single search locates the appearance of key words throughout the entire Manual. e. Finally, the Manual probably needs a "policy on policies" explaining what the policies are for, how they are enacted and the exact procedures needed to waive them (when a procedure for waiver is not specified in the policy itself). 8. Given the complexity of matters such as the above, the difficulty of achieving clarity and desired purposes without unintended consequences and the complicated interactions between the City's many laws and regulations, I personally believe the Council and City would be well served by creating a standing citizens Legislative Review Committee to publicly study and comment, independently of City staff, on the laws and regulations being presented to the Council prior to their adoption. August 8, 2017, City Council Item 18 comments - Jim Mosher Page 3 of 5 Comments on Specific Proposed Policies Policy A-1 ("City Council"): 1. This is said to be a consolidation of existing policies A-1, A-3, A-6, A-8, A-10, A-11, A- 13, A-15 and A-20. 2. Of the policies consolidated, the description in Attachment B of the present Policy A-15 ("Ex Parte Communication Policy") is incorrect. The summary says the effect of the current language is that "BCC members cannot attempt to influence a matter pending before City Council." It actually says the opposite. That is, it says Council members (and City employees and other BCC members) cannot attempt to influence a quasi- judicial matter pending before a BCC. 3. Since nothing is shown in the redlining of Attachment C, and nothing other than the consolidation mentioned in Attachment B, the implication seems to be that no substantive changes have been made to any of the policies being consolidated. However, looking at the opening lines of the proposed Policy A-1 on staff report page 18-7, it is clear the words differ from the existing Policy A-6. In particular, besides deleting a reference to BCC's, the phrase "Unless an exception applies" has been added. The following paragraphs on this page appear to have been even more extensively modified from their form in the existing Policy A-6. Assuming this is the pattern, and not knowing what words may have been changed elsewhere, this makes it very difficult to verify that no substantive changes have been made, purposefully or inadvertently. 4. That said, and therefore not knowing what changes have been made, there are innumerable changes that I think should be made to the existing policies in this category. Among those that come immediately to mind: a. The procedure for placing items on a future agenda is overly cumbersome, and possibly in violation of the Brown Act, which arguably allows individual members to have such requests honored. b. Clarity is needed as to how "Study Sessions" differ from "Regular Meetings," in particular what actions or direction to staff can be taken at them. c. Clarity is needed on how far Council can deviate from the recommendation noticed in the agenda before the matter needs to be brought back at a future meeting. 5. Random comments on a few staff report pages of "A-1" I have looked at: a. Page 18-15: Under subheading "a" a series of rules of decorum that never formerly applied to Council members have been inserted wholesale out of existing policy A-13 ("Decorum and Order for City Commissions, Committees and Boards"), although curiously omitting the last of those about conduct during filmed meetings. I seem to recall Mayor Mike Henn at one time proposing rules of conduct for Council members, possibly similar to these; and I seem to remember August 8, 2017, City Council Item 18 comments - Jim Mosher Page 4 of 5 them being rejected by his fellow members. Arbitrarily inserting provisions that are not in the current policies, like this, clouds the entire issue of the Council, and public, trying to decipher if the proposed policies A-1 and A-2 are the same or different from the existing ones. b. Page 18-17: As previously noted, the passages about ex parte communications to BCC's in the existing Policy A-15 cannot be simply copied and pasted, as has been done here, and expected to translate well into new rules for ex parte communications to and from the Council. As to communications to the Council, and in general rules to minimize the appearance of bias in quasi-judicial decision making, the California Institute for Local Government has links to a couple of useful resources under the heading "When an Elected Official Feels Passionately About An Issue." In essence, with regard to ex parte communications, the public expectation at quasi-judicial hearings is not only that the existence of such contacts will be publicly announced, but their content as well. Page 18-18: The rules for noticing Closed Session items and expectation for reporting the actions taken at them should, in my opinion, be tightened. In past years, the City Attorney provided much more informative notices. In addition, the public in Newport Beach hears "no reportable action" all too often. While this may (or may not) be technically permissible under the Brown Act, it is not required, it generally does no harm to immediately inform the public of votes and settlements that, under the act, may only have to be revealed at a later time. d. Page 18-19: The rule that written communications "shall be submitted to the City Council by 5:00 p.m. on the Monday immediately prior to the meeting" misses the point that Council meetings aren't always on a Tuesday. Instead of "Monday," it should presumably say "day' or possibly "business day." e. Page 18-22: The final line of the proposed Policy A-1 simply says it is a reworking of nine existing policies. All revision history, even the dates of the prior revisions, is lost. Additional Comments With a personal goal (which I see I am already missing) of submitting this by 1:00 p.m. on August 8, it has become frustratingly apparent to me that I will not be able to review most of this item in any thoughtful way, or even read most of it, prior to its proposed adoption by the Council. The following are totally random comments on selected pages from the staff report. They are not meant to imply I have read even those pages in their entirety: Page 18-25: top paragraph: I do not recall the Appointments List being "posted" at the Central Library. It may well be available for inspection somewhere in the library, but I have trouble visualizing how the multi -page document would be posted in the small closed glass case where meeting agendas are displayed. August 8, 2017, City Council Item 18 comments - Jim Mosher Page 5 of 5 2. Page 18-25: under "Qualifications": I suspect "electorates" was intended to read "electors". 3. Page 18-25: The procedures for noticing the initial openings on newly created BCC's have long needed to be clarified — that is, whether the rules for "vacancies" apply to them are not. They have sometimes been filled with no public notice of the opportunity to serve, which I don't think was the intended outcome of the Maddy Act, or good City policy. 4. Page 18-26: It remains unclear how the term limit is supposed to apply to BCC's that do not have 4 -year terms, such as the Finance Committee, or the Aviation Committee. 5. Page 18-26: The implied deference to the California Streets and Highways Code for rules governing appointments to Business Improvement District boards is a little amusing since the S&HC contains no such rules. 6. Page 18-31: line 3 from end of Item C: I suspect "permanent' was intended to read "permanently' 7. Page 18-34: line 2: given the recent stink about the City seal and the 2015 amendments to the Municipal Code, I'm not sure I entirely understand what issuing "City seals" means, or if it's even still allowed. 8. Page 18-35: last line of Purpose: "park' is presumably meant to read "parks". 9. Page 18-39: line 3 from end: I suspect "North Start Beach" was intended to read "North Star Beach". 10. Page 18-70: The proposed Policy D-5 ("Digital Communication") apparently incorporates ideas from the "existing" Policy D-6 ("Social Media"). It should be understood that D-6 was the product of City staff working with a now defunct "Media and Communications Committee," but it was never formally presented to, let alone adopted by, the City Council. The Media and Communications Committee is missed, since, other than the City Council, there is no longer any official public forum for discussing the City's digital presence, or other communications and technology issues facing the City (such as requests to use the right-of-way).