HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed
March 26, 2019
Consent Calendar
March 26, 2019, 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 March 125 2019 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 64.
Page 51, Item SS3, paragraph 3 from end: "Mayor Dixon pointed out the total cost for CIP
projects, noting that Council only approves $5 million of General Fund money in the budget,
and expressed appreciation to staff for pursuing external funding sources and grants."
Page 51, Item SS3, last paragraph: "Jim Mosher received clarification from Public Works
Director Webb that the amount of General Fund money in the CIP budget is determined by
Council."
Page 51, Item SS4: "Without objection, the item was continued to the March 26, 2019 study
session." [It might be noted the item doesn't seem to be on the present agenda.]
Page 55, line 2 from end: "The motion carried unanimously."
[This may be a matter of taste, but I would suggest this change be made in the eight places
where this new way of recording votes appears (for the first time) in the present minutes.
An adverb like this sounds more natural to me after the verb, as in "the dog ate quickly,"
than before it. I seem to not be alone in this perception: Google currently finds 396,000 web
pages containing "The motion carried unanimously' compared to L 17,400 with "The
motion unanimously carried." In adopting this new, more concise way of reporting Council
votes (which I like), City Charter Section 410 should be kept in mind: "At the demand of
any member, the City Clerk shall call the roll and shall cause the ayes and nays
[erroneously changed in 2012: the former and normal counterpart of "ayes" is "noes"] taken
on an issue which is the subject of the demand to be entered in the minutes of the
meeting." Although there is rarely a "demand" for a roll call vote, use of the electronic
voting system means all votes are effectively taken by roll call. Nonetheless, the current
Policy A-1 (see "A" on page 10), as revised in August 2017, omitted the mention of
electronic voting found in the former Policy A-10. The current policy appears to contemplate
only oral votes, with members announcing a "yes" or "no" to be recorded in the minutes.]
Page 57, Item 13, end of paragraph 1: "... and thanked the Finance Committee, staff and past
Counc-i1 Councils for their efforts."
Page 57, Item XVII: "Robert Rush discussed a lawsuit that he was recently involved in,
indicated that he had filed a complaint with the Fair Political Practice Commission (FPPC)
regarding Council Member Herdman, and provided a copy of the complaint to the City Clerk."
[The document mentioned here does not yet appear to have been archived with the meeting
materials. I would think it should be.]
March 26, 2019, City Council Consent Calendar Comments - Jim Mosher Page 2 of 8
Page 60, last paragraph: "Mel Beal Beale, Airport Working Group (AWG), expressed support
for Alternative 3,... "
Item 3. Resolution No. 2019-24: Amendments to the Records
Retention Schedule
Since the expectation that records will be retained seems fundamental to transparency, it
remains unfathomable to me why Newport Beach would allow Diane Gladwell to copyright the
City Council's Records Retention Schedule as her personal work product, thereby prohibiting
the public from examining anything but a single physical copy of it, available for inspection only,
on request, in person, in the City Clerk's office.
In addition, the staff report gives no clear explanation of the specific changes being requested.
And even if it did, it would, for the foregoing reason, be difficult for the public to assess their
significance without being to see the larger document in which they exist.
As to the proposed Resolution No. 2019-24, it is good to see the City Attorney has personally
signed off on this and the other resolutions in the present agenda packet (as opposed to seeing
only the scribbled initials of some unidentifiable surrogate).
That said, this resolution, like most of the others, has its problems
In particular, Section 3 (staff report page 3-4) implies Exhibit 1 is a complete copy of the
Records Retention Schedule adopted in 2014, to which amendments have been made by
Resolution Nos. 2016-48 and 2018-18. In fact, Exhibit 1 is nothing of the sort. It appears,
instead, to be a coded and cryptic list of changes to the existing RRS which the Council is being
asked to authorize. It was possibly meant to read something like: "Section 3: The records of
the City of Newport Beach, as set forth in the Records Retention Schedule, E*ham , and as
amended by Resolution Nos. 2016-48,a-nd 2018- 18 and Exhibit 1 ("Amended Records
Retention Schedule'), are hereby authorized to be destroyed in accordance with California
Government Code Section 34090 et. seq. and the applicable timeline set forth in the Amended
Records Retention Schedule upon the request of the Department Directors and with the written
consent of the City Attorney, without further action by the City Council of the City of Newport
Beach." — although, even then, Exhibit 1 sets forth a clear timeline only for item "P-034" on staff
report page 3-9. The Council is apparently being asked to give permission for Building Permit
Applications (staff report page 3-6) to be destroyed immediately, even though technically they
will no longer be listed in the RSS at all, so no timeline is being adopted (not to mention the
strangeness of throwing away building permit applications, when they seem like something one
would want to keep for proof of what was originally requested).
Slightly more philosophically, I have trouble understanding the rationale for erasing electronic
records. The first "Whereas" of the proposed resolution says "the maintenance of numerous
records is expensive, [and] slows document retrieval." I don't believe that is true of electronic
records: their storage is increasingly inexpensive and any competent IT Department should be
able to design a system in which the quantity of records stored does not significantly affect the
retrieval time (especially for a fixed subset, such as the most recent records).
March 26, 2019, City Council Consent Calendar Comments - Jim Mosher Page 3 of 8
Item 4. Resolution No. 2019-25: Formation of a Homeless Task Force
As noted under Item 3, it is good to see the City Attorney personally reviewing resolutions as
(arguably) required by City Charter Section 602(f). This one reverts, however, to "approval as to
form" by the undecipherable initials of some unknown person (see page 4-4), seriously
diminishing accountability.
The following corrections to the proposed Resolution No. 2019-25 are suggested:
Page 4-3: "Section 1: The City Council does hereby establish the Newport Beach Homeless
Task Force ("Task Force'). Attachment 'A", which is attached hereto and incorporated
herein by this reference, shall govern the membership, term, meetings, purpose and
responsibilities of the Task Force, which is attached hereto and incorporated herein by +h:�
ref�Ge." [The Task Force is obviously not attached, but Attachment "A" is.]
Also, for correctness in the next to last line: "of the CEQA Guidelines, California Code of
Regulations, Title 14, Division 6, Chapter 3, because if'
Page 4-5: "AUTHORIZATION: Established by Resolution No. 2019-25 adopted on March 26,
2019."
"MEMBERSHIP: The Task Force shall be comprised of two (2) councilmembers and seven (7)
residents appointed by the Mayor and confirmed by the City Council. Council Policy n-'
waived as it pertains to the term ef Council and Committee members appointed to the
Task Force. As provided herein, the teFm ef the appointed members ef the Task F-Gme
shall be indefinite pending City CounGil aGtion or expiration of the Task Fbrc-e�s term
seed aheve n
[This elaborate statement about duration of service is unnecessary, and confusing. First,
because City Council Policy A-2 says nothing about the term of appointments, and hence
does not need to be waived. And second, because the duration of the committee is
specified in the separate "TERM" paragraph. If, despite that, this unnecessary passage is
retained, the last sentence should end: "... or expiration of the Task Force's term listed
above below."]
"QUALIFICATIONS OF MEMBERS: ... The Task Force shall include residents with an interest
in working to create a vision and plan to respond to the issues of homelessness in Newport
Beach, have and having expertise in housing, mental health services, social services, public
safety, health services, or education."
[note: I might have an interest in volunteering to serve on this committee, but the "expertise"
requirement rules me out. In considering the qualifications it wants to establish, I think the
Council should be avoid making them so narrow that the applicants will be persons with the
appearance of a financial interest in the outcome.]
March 26, 2019, City Council Consent Calendar Comments - Jim Mosher Page 4 of 8
"MEETINGS: The Task Force is an ad hoc committee. Meetings shall be held as required by
the business needs of the Task Force in suGh at locations, dates and times in accordance with
the Ralph M. Brown Act."
"PURPOSE & RESPONSIBILITIES:
A. Develop strategies/ and a plan to integrate all services needed to address homelessness.
D. Develop an appropriate metrics system to monitor reduction of homeless population.
E. Report the Task Force's conclusions back to the full City Council."
[As to the need for "E," the most fundamental responsibility of the committee seems to have
been omitted.]
Item 5. Resolution No. 2019-26: Amending the Structure,
Membership, Roles and Responsibilities of the Aviation Committee
I commend the City for reducing the size of the Aviation Committee. I personally feel 15
members is still too many. As with the present committee, the large number means most
matters will pass by with most members saying nothing, which creates a poor impression of
their involvement and active engagement in important issues — as well as the public's ability to
interact effectively with those voting.
I am also uncomfortable with the seats restricted to members or designees of outside interest
groups. It seems to me that the responsibility for making appointments to City bodies lies with
our elected representatives on the City Council. While the individual Council members, when
considering applications, are free to consider involvement in outside interest groups, allowing
outside bodies or persons to designate the appointees seems, to me, an improper delegation of
a governmental function. I feel all positions should be open equally to all citizens meeting the
technical requirements for the position, without the need for endorsement by anyone other than
a majority of the Council members.
Naming outside groups also seems improper since the list can change over time. The groups
named may disappear, while others may self -declare themselves into existence. I don't think the
government should be in the business of designating some as more "valid" than others.
For this reason, I would eliminate positions "F," "G" and "H" on page 5-8.
1 also do not see the need for the "at -large member" ("C" on page 5-7).
Eliminating these four positions would reduce the committee to 11 or 12 members (which still
seems large to me), as well as simplifying the proposed resolution.
As to the last paragraph of "MEMBERSHIP" (inviting representatives from JWA and Costa Mesa
to "participate," I think it would be beneficial to the City to invite a representative from the City of
March 26, 2019, City Council Consent Calendar Comments - Jim Mosher Page 5 of 8
Tustin (and possibly Irvine?), as well. Their citizens share many of the same concerns (and
they are affected even more severely than the residents of Newport Beach by the new NextGen
departure patterns over their city (rather than the Back Bay) during "reverse flow" wind
conditions.
As to the "MEMBER TERM," six years seems too long to me. As written, persons replacing an
existing member early in their term could stay on the committee for up to 18 years. That does
not encourage participation by new people.
As to "QUALIFICATION OF CITIZEN MEMBERS," I find it hard to imagine we would have to
reach outside Newport Beach to find "One (1) member of the general aviation community."
Persons with "specific expertise to the Committee that may be unavailable within the City" can
always be interviewed by the committee. Like the representatives from JWA and Costa Mesa,
they do not have to be made members of it.
As to the "PURPOSE AND RESPONSIBILITIES," although the resolution title says it is
amending the "Roles and Responsibilities," I see no changes other than the new final sentence
"F. Provide advice on aviation matters as requested by the City Council," which I would think is
impliedly included in the existing Resolution No. 2011-31. Since the Council evidently feels the
earlier resolution's statement of purpose and responsibilities is not producing an effective
committee, it might be wise to re -read City Council Policy A-17 (which the committee is
supposed to be implementing) and make adjustments to both, as necessary.
Item 6. Resolution No. 2019-27: Amending Resolution No. 2001-100,
Adopting a Revised Discrimination and Harassment Prevention Policy
Although signed off on "as to form" by our City Attorney, this resolution seems confused.
In particular, on page 6-3 it says it seeks to amend and repeal amend Resolution No. 2001-100,
which as the second "WHEREAS" explains, is the one by which the Council approved and
adopted, after much staff effort, the Employee Policy Manual, including its appendices.
Since what is being presented to the City Council is a revised version of a single appendix
to that Manual, it appears to me that the Council does not want to repeal its approval of the
entire manual, but only its prior approval of Appendix A via Resolution No. 2016-111,
replacing that with a newly approved version.
The statement at the end of Section 1 (page 6-3), that "Resolution No. 2001-100 is hereby
repealed" is particularly troubling, since the present attachment offers nothing to replace
anything in the previously -adopted Manual other than the already -amended Appendix A. I
should think this was intended to read "Resolution No. 2001-109 2016-111 is hereby
repealed"
That said, it is troubling that the currently posted version of the main section of the
Employee Policy Manual says "Latest Revision 07-12-2010." Since the City Council did not
meet on that date, it is unclear how the Manual came to be revised without Council action, if
March 26, 2019, City Council Consent Calendar Comments - Jim Mosher Page 6 of 8
that is indeed what happened. For future clarity, it would be good for the main section
and each appendix to cite the Council resolution by which it was adopted.
It might further be noted that, much like the present resolution, the Human Resources
Department's web presentation of the Manual is confusing.
It shows links to an "Employee Policy Manual" and four appendices ("A" through "D").
Following the link to the "Employee Policy Manual" yields a 120 -page PDF, containing what
is apparently the full Employee Policy Manual (on PDF pages 1 through 74) and five
appendices ("A" through "E").
On page iv (PDF page 5 of 120), the Table of Contents refers to Appendix A as the
"UNLAWFUL DISCRIMINATION AND HARASSMENT POLICY" and the copy of it provided
on PDF pages 75 through 79 appear to be the version before the redlining of Resolution No.
2016-111 (compare to Attachment B to City Council agenda Item 18 from September 13,
2016, to which the formal Resolution No. 2016-111 was a last minute addition). Moreover,
this version of Appendix A says at the bottom of its last page (page 79 of the 120 page
PDF) that it was "Revised: November 2005." Yet the present resolution mentions no
revisions of the original Appendix A, other than those made by the Council in 2016.
As indicated in the preceding paragraph, page iv of the currently posted Manual also refers
to an Appendix E ("ORGANIZATIONAL VALUES AND BEHAVIORS") which is part of the
120 page PDF (starting on PDF page 119), but does not appear to have been separately
posted.
Like much about this, some of the substance of the proposed revisions is confusing as well.
As an example, Section 3 (on page 6-6) continues to open by saying "The following
definitions that apply to this Policy are derived from the California Fair Employment and
Housing Act ("FEHA') and include, but are not limited to:" — implying that the definitions
shown were taken from the FEHA (Cal. Gov. Code Secs. 12900 — 12907) and that if one
looks there one will find more definitions applicable to the policy. The definitions that were
crossed out (see staff report pages 6-15 through 6-17) were from the Definitions chapter of
the FEHA, in particular Gov. Code Sec. 12926, but the new definitions that were added (see
staff report page 6-15), and which are now the only five definitions in the policy, don't seem
to come from the Act, at all. Indeed, Google was unable to discover where any of them
came from. If they do come from some external source, it would be helpful to identify it.
Saying they are from the FEHA creates confusion, at least for me.
Abandoning any effort to understand the redlining, in examining the largely new "clean"
policy on page 6-6, in the new Section 2, 1 would suggest "...; City Council and other
members of City Boards,. -a -ad Commissions and Committees; ..." to coincide with the
parlance long used by the City Clerk.
March 26, 2019, City Council Consent Calendar Comments - Jim Mosher Page 7 of 8
Item 7. Resolution No. 2019-28: Approval the December 31, 2011
Salary Schedule and Revisions Through June 11, 2018
The reference to "California Code Regulation (CCR) 570.5" is unclear, since the CCR is a
massive document with (likely) more than one Section 570.5. The reference is, in fact, to
Section 570.5 of Title 2 of the CCR, or, more precisely "2 CCR § 570.5".
It would be helpful to revise the proposed resolution (staff report page 7-4) as follows:
"WHEREAS, to comply with Title 2 of the California Code of Regulations ("CCR'), Section
570.5, which was adopted by Ca1PERS April 13, 2011 ..."
"WHEREAS, the City Council approved and adopted the current Citywide Salary Schedule
effective June 12, 2018, bringing the City into compliance with 2 CCR §-570.5."
Regarding the latter statement, the City posts what appears to be a comprehensive salary
schedule on the Human Resources website. I am not aware of the Council ever approving and
adopting that document as a whole, as it is doing the one attached to the proposed Resolution
No. 2019-28. Instead, I have noticed salary schedules being approved as MOU's with the many
bargaining units are approved. If that is indeed what has happened, it would be useful for the
proposed resolution to document that more clearly. It would also be good for the salary
schedule web page to indicate more clearly when the items listed in it were approved.
Finally, I, for one, do not fully understand the significance of the "Citywide Salary Schedule
effective December 31, 2011, with all revisions through June 11, 2018" shown in Exhibit 1 of the
proposed resolution. Since salaries change with time, it looks like this is a list of the salaries that
were in effect on December 31, 2011, with a list (at the end) of Council -approved revisions to
those through June 11, 2018. But much is left to the imagination, such as the meaning of the
column headings in the main table and the significance of the many lines shown within each
"Class." Are these "steps" available within the class? Whatever they are, what step, or other
thing, do they represent?
The current online listing suffers from the same problems of not explaining the column titles
(oddly different from the column titles in the present Exhibit 1), and not explaining the many
lines under each job "Title".
If the purpose of this is public disclosure, the disclosure is not as good as it could be.
Item 10. Spyglass Hill Reservoir Mixing System - Award of Contract
No. 7428-1 (19W15)
It might again be noted that although this expenditure is explicitly being requested "to assist with
maintaining proper water quality as identified by the Utilities Department," this is not the kind of
water quality that is the subject of the City's Water Quality/Coastal Tidelands Committee.
March 26, 2019, City Council Consent Calendar Comments - Jim Mosher Page 8 of 8
Item 11. Amendment No. 1 to Professional Services Agreement with
Parkmobile, LLC for Pay -By- Cell and Parking Reservation Services
The staff report is clearly advocating for a transition to a "pay -by -cell only" system of paying for
public parking in Newport Beach. It would seem to me some viable alternative needs to remain
for access to all spaces, not just some, so as not to discriminate against residents and visitors
who may not have the appropriate technology or application. A future change to "pay -by -cell
only," if applied in the Coastal Zone, would likely also require Coastal Commission approval
since it clearly affects access.
Item 14. 2018 General Plan Status Report and Housing Element
Annual Progress Report (PA2007- 195)
On March 7, 2019, the Newport Beach Planning Commission met to formulate a
recommendation to the City Council regarding the present report (their agenda Item 4).
1 commented briefly on this item at that time. In years past I have commented much more
extensively on it.
The fact that only a bare quorum of four Commissioners (and no members of the public other
than 1) bothered to show up, that neither their discussion or recommendation (see draft
minutes), nor my comments, are being transmitted to the City Council seems indicative of the
total lack of interest in this matter by staff, elected and appointed representatives and the public.
That lack of interest in the current General Plan seems ironic in view of the large amount of
money the City proposes to spend to improve it. It also makes further comment seem pointless.
Received After Agenda Printed
March 26, 2019
Item No. 6
March 26, 2019, City Council Item 6: Additional Comments
The following comments on an item 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 6. Resolution No. 2019-27: Amending Resolution No. 2001-100,
Adopting a Revised Discrimination and Harassment Prevention Policy
I previously submitted comments regarding, mostly, the text of the resolution by which the
Council is being asked to approve the revised Appendix A to the Employee Policy Manual.
I have these additional comments regarding the proposed content of the policy itself:
1. Under Section 4 ("Harassment"), the paragraph beginning "A single incident of harassing
conduct may have the purpose or effect of ...," near the middle of staff report page 6-8,
is repeated verbatim, but with an additional sentence, on page 6-9.
a. Assuming the same sentiments apply in both places, it would make sense to
move the page 6-9 paragraph to the top of page 6-8, between the words
"Harassment" and "Sexual Harassment," so the words appear once,
applicable to the entire section, and don't have to be repeated in each
subsection.
b. This would also improve the flow on page 6-8, since the enumeration of
examples of bad behavior wouldn't be interrupted by the paragraph in question
(as it is now).
2. Regarding the second paragraph on page 6-9, beginning "It is unlawful for male
Employees to sexually harass female Employees or other male Employees, ..."
a. The first sentence appears to be trying to enumerate all possible combinations of
the sexual orientations of the person involved in a two -person interaction. This
seems rather pointless to me, as well as unsuccessful: first, because it refers
only to "Employees" even though it was probably meant to include people who
are not employees; and second, because it fails to address people who don't
identify as either "male" or "female" — even though it likely meant to. Unless it is
somehow needed for emphasis, I would suggest it be stricken.
b. The second sentence of this paragraph says "Sexual harassment is unlawful
whether it involves co-worker harassment, harassment by a supervisor or
manager, or harassment by persons doing business with or for the City."
i. Isn't this true of all forms of harassment, not just sexual?
ii. Also, as to supervisors and other persons, isn't harassment "of' prohibited
as well as harassment "by'?
iii. To the extent those observations are correct, I would suggest the
sentence be rephrased to something like "Harassment is unlawful
whether it involves co-workers, supervisors, managers or persons
March 26, 2019, City Council Item 6- Additional Comments - Jim Mosher Page 2 of 2
doing business with or for the City' and added to the end of the
general paragraph about harassment proposed in comment 1, above.
3. The policy in general is long on defining things that are wrong to do and suggesting the
possibility of extremely strict consequences for doing them, but very vague on what the
actual consequences are likely to be in a particular circumstance.
a. Section 8, for example, indicates the consequences of a violation could be
termination, but it gives administrators no hint of when the Council feels
termination is actually the appropriate remedy.
b. Section 9, similarly, warns employees there are "certain circumstances" in which
they may be "personally liable for monetary damages," but it gives no hint of what
those circumstances might be.
4. Much of the policy apparently applies to nonemployees as well as employees, in ways
apparently expanded by the recent legislation (SB 1300). But it is not clear how the
Council expects nonemployees to be made aware of this policy, since it is buried in an
appendix to an Employee Policy Manual.
5. As the staff report explains, the new Government Code Section 12964.5 severely limits
employers (such as the City's) ability to require employees to sign non -disparagement
agreements, confidentiality agreements and waivers of FEHA claims.
a. Shouldn't something about that be added to Section 12 ("Employee's
Rights")?