HomeMy WebLinkAboutHandouts from PublicComments on June 14, 2012 Charter Update Attachments
from: Jim Mosher ( Iimmosher cDyahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229)
Attachment A (Amended Draft Minutes for June 7, 2012):
• On page 2,
c The nature of Committee Member Savary's concerns regarding Section 1114 do
not seem to be adequately recorded. As I recall, they were in part that a major
policy change was being recommended on the basis of vague references to "a
case in LA," and she wanted more detail on what that case was about and how it
related to us.
o George Schroeder's name is misspelled as "Shroeder."
• On page 3:
o Novell Hendrickson's name is misspelled as "Novel."
o In the discussion of Section 503, some clarity might be provided regarding what
was said about the coverage provided by the current bond. I believe the draft
minutes correctly say "Assistant to the City Manager Houston added that the
bond covers ati City staff," however I believe Acting Assistant City Attorney
Torres later said the premium was so low because it did not cover all employees
and that it would be unwise to include a requirement for wide coverage in the
Charter. That seems an important comment affecting the Committee's decision
regarding Sections 503 and 611, and I don't find it memorialized in the minutes.
The unspoken implication of the discussion seems to have been that for a
number of years taxpayers have been paying the cost of the City
Manager's bond despite the clear requirement in Section 503 that he
personally provide the bond as a condition of employment. The benefit to
anyone other than the City Manager for changing the Charter to conform
to the practice, rather than the practice to conform to the Charter is
unclear.
On page ??: Member Glowienke's detection of a gender -specific reference in Section
409, and its suggested correction, is not noted in the minutes even though the change is
incorporated into Attachment B. Incidentally, there is at least one gender -specific
reference in a Section that is not being proposed for revision (Section 1102), and there
may well be others.
The fact that a new, and extensively rewritten, version of staff's recommended changes
to Section 402 was distributed at the June 7 meeting is also not noted in the draft
minutes,
Comments on June 14, 2012 Charter Update Committee Attachments Page 2 of 2
Although not a correction to the minutes, several of the above observations indicate to me that
the Committee continues to recommend that important policy changes be placed on the
November ballot without adequate thought and discussion being given to alternatives (including,
but not limited to, the "do nothing" alternative), and based on vague, unverified oral testimony
rather than on thorough written documentation ("white papers") laying out a problem and
analyzing the pros and cons of possible solutions to it — written documentation whose
completeness and veracity could be more adequately scrutinized and challenged.
A City charter is an extremely important document that should, in my opinion, be modified only
with extreme care. While I appreciate and respect the integrity of the participants, I do not think
the present process is a good process leading to good results.
I also appreciate that the City Clerk is working under a very tight deadline to disseminate
minutes, which goes a long way to explaining the occasional shortcomings of ones such as
those referred to above. However, the fundamental reason for the tight deadlines is that the
process is being rushed for reasons I don't comprehend. I completely fail to see any urgent
need to get any of the proposed changes on the November ballot; and if there were such a
need, it would seem staff should have started the process much earlier.
Attachment B (Revised Partial Redline):
Unlike previous handouts, this redline does not seem to provide a reliably accurate rendering of
the existing Charter language.
• Staff has already discovered, and issued an amendment correcting Section 1106, from
which the word "centralized" (in the current Charter) had been omitted.
It has apparently not yet been noticed that "Section 408 Special Meetings" displays the
words "and publicly noticed according to the Ralph M. Brown Act' as if they were part of
the current Charter. They are not.
I do not know if there are other errors.
-- Jim Mosher
Comments on June 14, 2012 Charter Update Agenda Items
from: Jim Mosher ( JmmosherO)Yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229)
The following comments are on the Charter sections called out for possible review in the agenda.
Section 1106 Centralized Purchasing.
• 1 think background on the history of the Fiscal Administration provisions in Article XI
would be helpful before altering them.
For example, in response to a question at Monday's meeting of the Council's three-
member Finance Committee, Deputy Finance Director Dan Matusiewicz indicated that
the provisions of Section 1112 (Cash Basis Fund) are not used, and it is unclear to what
extent the restrictions in Section 1113 (Capital Improvement Fund) are honored.
Section 1116 Independent Audit
Regarding posting on "the City's website," the concept of "website" is a rather new one
possibly subject to obsolescence. The term "intemet presence" has been suggested as
a more generic term that could better embrace changing technology.
• It is not entirely clear if Government Code Section 40804 is to be followed in its entirety,
or only as it relates to the selection of a newspaper.
o Government Code Section 40804 calls, among other things, for use of "a form
prescribed by the State Controller" and for what is published to be a summary of
"the city's financial report required by Section 53899."
As to a timeline, Government Code Section 40805 calls for publication "not later than
120 days after the close of the fiscal year," but it would seem instructive to review the
requirements other charter cities impose on their officials.
If I understood correctly, the new auditor interviewed at the recent Finance Committee
meeting said they would be reviewing documents in September and not (if I heard
correctly) likely have their report out until December — well beyond the Section 40805
limit.
Section 407 Regular Meeting
• 1 submitted written comments on Section 407 to the May 31, 2012 meeting, at which I
thought the Committee was going to be going through the proposed changes in
sequence.
• In essence, City staff honored for many years the Charter requirement to schedule a
minimum of two regular meetings per month (including December), and there is no
evidence the Council members, or the public, found them burdensome to attend.
June 14, 2012 Charter Update Committee comments by Jim Mosher Page 2 of 3
• There is no evidence of anyone being away for a "holiday" in the second half of August.
• The public benefit of going from two meetings per month to no definite requirement has
not been explained.
• if the Council should, under the new language, chooses to schedule no regular or
special meetings during a calendar month, then the interaction of that decision with the
compensation language in Section 402 does not seem well defined: since they would not
be "absent" are they still paid?
• The reasons for inserting the Brown Act, and how its requirements differ from the current
language have not been well explained.
Section 408 Special Meetings
• Again, the reasons for inserting the Brown Act, and how its requirements differ from the
current language have not been well vetted.
Section 409 Place of Meetings
This may, at first sight, seem an innocuous change, but it is not at all.
• Whether we have been following the Charter precepts, or not, the change from an open
meeting policy at a well defined location to the less restrictive requirements of the Brown
Act is a major shift in the public's expectations of what our government should do.
• Its only purpose seems to be to legitimize present practices that do not honor the wise
precepts of the Charter.
Section 421 Contracts. Execution
• Again, this is a very major change in the public's expectations of what its government
should do, being requested to legitimize a new contracting policy instituted in
contradiction to the Charter in January 2011.
• The present language insures accountability by allowing the City's citizens to be bound
to a contract only if it has been publicly approved by the City Council, or by the City
Manager in the limited circumstances where it is below a certain dollar amount and is to
implement an item publicly approved by the City Council as part of the budget.
• In my opinion, giving up that accountability and duty to oversee expenditures is very
unwise.
June 14, 2012 Charter Update Committee comments by Jim Mosher Page 3 of 3
Section 425 City Hall
• It appears this item is being recommended to cover up staff and Council's having not
read carefully enough a ballot measure passed by Newport Beach voters in 2008, and
as result having built a civic center that does not, in all respects, match what the
measure called for.
At the least, if this problem needs to be corrected by revising the measure as it appears
in the Charter, the problem should be clearly explained to the voters and presented to
them as a stand-alone item.
Section 4021402 -A/402 -B/404 Council Compensation
• 1 submitted written comments on Section 407 to the May 31, 2012 meeting.
• The real question here is the "employment benefit" package that taxpayers have been
funding for the Council members for the last 15 years or so — something completely
unanticipated in the Charter, and arguably illegal.
The current Charter calls for "reimbursement for expenses".
o Changing that to "salary for services" (thereby justifying the "employment" perks)
is a major change.
o If the perks are to be sanctioned by the Charter, then an additional question
arises of whether they should be kept below the existing compensation limit (or
some new one).
Section 608 Illegal Contracts. Financial Interest
• The current language commits the City to not having contracts in which the top officers
(including the Council) have a financial interest, whether or not they participated in the
decision.
• Whether we have been honoring this commitment, or not, giving up that protection does
not seem wise.
Sections 707, 708, 709 and 801
I do not think any of the proposed changes to these sections are in the public interest, but
do not have time to submit written comment's ahead of the June 14, 2012 meeting.
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Date: June 14, 2022
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Jun 14 2012 2:23PM Hawkins Law Offices (949) 650-1181 p.2
LAW OFFICES OF ROBERT C. HAwKINS
June 14, 2012
Via Facisimile
Paul Watkins, Chair
Members of the Charter Commission aka Charter Committee
City of Newport Beach
3300 Newport Blvd.
Newport Beach, California 92663
Re: Comments on the Draft Charter Redline and City Manager Weighted Suggestions
Drgft of the Revised Charter
Dear Mr. Watkins and Members of the Charter Commission aka Charter Committee:
Thank you for the opportunity to comment on the captioned matter. As you know, this firm
represents businesses, groups and individuals who work and live in the City of Newport Beach. We offer
the comments below on their behalf.
I. Why Are We Doing This Update?
First, it is unclear why the Charter requires update especially since the Cityjust updated the Charter
in 2010. Resolution No. 2012-32 states:
"WHEREAS, the City's Charter was amended by the residents of the City of
Newport Beach at the 2010 General Municipal Election. Since the last amendment,
additional Charter sections have been identified for possible amendment;
"WHEREAS, since the last Charter amendment, additional Charter sections have
been identified for possible amendment; (sic)
"WHEREAS, it is appropriate to appoint a citizens committee to review the City
Charter for update and modernization issues in order to maximize the benefit to the City
and its citizens and to move the work program for such an update and modernization
forward in a limited period of time;"
However, it is unclear who or why additional Charter sections have been identified for possible
amendment. Indeed, many of the Charters sections proposed for possible amendment were amended
by the 2010 Charter Commission, the City Council and the voters in 2010. Indeed, Paul Watkins,
Mike Torres and David Kiff all participated in the 2010 Update; apparently, there is some need to get a
"do over." But it is unclear why we need to spend precious staff resources and limited City fiends to
make this "do over."
Second, Staff has maintained that this effort is simply a Charter cleanup. That was the purpose
of the last Charter Update two years ago. Why weren't these cleanup issues done then? Moreover,
many of the proposed changes are not clean-up. Notable among these new and important changes is the
proposed exclusion from Charter Section 801 which states that the City Service System includes all City
110 Newport Centex Drive, Suite*200
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Jun 14 2012 2:23PM Hawkins Law Offices (949) 650-1181 p.3
Paul Watkins, Chair
Memhera of the Charter Updare Commission aka Committee .11 June 14, 2012
employees except listed employees, New subsection (f) proposes to exclude a whole host of new
employees and categories:
"New positions and/or employees not previously included within the civil service
system that are excluded by a vote of the City Council."
(Emphasis supplied.) Some have referred to this as the "Costa. Mesaision" of the Civil Service System
in the City. As discussed below, this goes far beyond "cleanup" and is bad public policy.
Il. What About the Minutes and the City Attorney's Advice?
The minutes for the meetings of May 31, 2012 and June 7, 2012 are too cute by half regarding
various conflicts issues. First, at the May 31, 2012 meeting, Mr. Robert Rush raised a conflicts issue
regarding Mr. Wat1drns earlier client in a land use matter. The Deputy City Attorney Mike Torrez said
that under the Political Reform Act, Government Code section 81000 et seq., members of the
Committee such as Mr. Watkins were not public officials under the Act and therefore the conflict
provisions did not apply. This advice is incorrect and conflicts with the City's newly circulated
Handbook for City of Newport Beach Boards, Commissions, and: Committees (the Handbook l and the
code sections and regulations cited therein. The Handbook provides that a person is a public official if
they are a member of a Board, Commission or Committee in the City of Newport Beach. Handbook
page 10 citing 2 Cal, Code Regs. Section 18701.
At that same meeting, Mr. Kiff discussed the proposed changes to the City Manager provisions
of the captioned draft of the Charter. As you know, I raised the issue that Mr. Kiff was a covered public
official under the Act and should not participate in the discussion. He did not participate in much of the
discussion thereafter and did not leave the room. However, he did improperly participate in the
discussion on Section 507 which discusses his duties relating to the appointment of the Manager Pro
Tern,
Again, this conduct conflicts with the Handbook and the cited code sections. The Handbook
says that the public official "must publicly announce the specific. financial interest that is the source of
the disqualification" and "must leave the room during any discussion, ...." Handbook, page 12 citing
Government Code section 87105; 2 Cal, Code Regs. Section 1872.5. Again, Mr. Kiff did not
announce the apparent conflict which concerned his compensation and did not leave the room as
required by the Handboo ,
Then in discussion on .Article VI, Mr. Kiff lead the discussion, and Mr. Torrez and Ms, Brown
did not participate. Staff realized that an impermissible conflict existed by members of the City
Attorney's and the City Clerk's offices discussing and arguing for changes to Section 602 (City
Attorney) and Section 603 (City Clerk).
The May 31, 2012 meeting minutes cutely attempts to handle these conflicts by the following
ambiguous language:
"City Manager Kiff or Acting Assistant City Attorney Torres discussed the proposed
changes to the following Charter Sections:"
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Jun 14 2012 2:23PN Hawkins Law Offices (949) 6501-1181 p.4
Paul Warkins, Chair
Members of the Chang Update Commission aka Committee .3 • June 14, 2012
This fails to satisfy the obligations of the minutes or the Political Reform Act. The minutes must be
revised.
The minutes for the meeting of June 7, 2012 continues this ambiguity. In the discussion of
Section 503, the minutes listed. Nit. Huston, Assistant City Manager, as leading the discussion. We
understand that
Mr, Diff also participated in this discussion. If this is mistaken, it should be clarified in the minute that
Mr. Kiff left the room and did not participate in the discussion. If this is correct, then the minutes
should reflect his participation,
As for the conflicts discussion by the City Attorney's office, the proposed revisions to Section
608 renders this Commission aka Committee a potential covered public official under the City's
conflicts provisions and under the Political Reform Act. Although we do not believe that the conflict
identified by Mr. Rush is disqualifying, this Commission aka Committee should discuss these changes.
If the Commission aka Committee endorses the proposed changes to Section 608, it should make the
appropriate disclosures.
Further, the City's recently circulated Handbook has not been presented to this Commission aka
Committee. Further, as required by the Handbook, this Commission aka Committee has not signed
Confirmation Sheet which is required by the Handbook. Also, the Handbook advises that members of
such bodies that they are public officials and should disclose anypotential conflicts of interest.
Given these issues, the Commission aka Committee should review and correct its minutes and
further discuss these issues.
III. Section 1114 aka 1116 Requires Additional Changes..
These Sections concern the Charter's requirement for an Independent Audit. The proposed
amendments concern the publication requirements. Currently, the Charter requires that the Audit be
published in the official newspaper. The recommended change is to make it available on the website
and publish a summary in the official newspaper. This weakens the public circulation of the Audit.
Although publishing the entire Audit may create a significant cost to the City, Staff has not provided
this information. The Commission aka the Committee should request this information before making
this change.
Also, given that the proposed change weakens circulation', the Commission aka Committee
should recommend that the Audit be generally available at all City libraries.
IV. Why Is Staff Proposing Changes to Section 4027
Currently, the Charter provides for no compensation for City Council members and only
reimbursement for expenses, Staff proposes to fix compensation at $ 1,227,35 for Council members and
an additional $513.96 for the Mayor. Staff has provided no basis or rationale for these figures.
Presumably, there is a reason for such compensation rates, but the Commission aka Committee has no
information at all for such rates. in order to make a reasoned recommendation, the Commission aka
Committee should request some explanation, some staff report and some comparison with other Orange
County cities.
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Jun 14 2012 2:24PM Hawkins Law Offices (949) 650-1181 p.5
Paul Watkins, Chair
Members of the Charter Update Commission aka Committee 4 - June 14, 2012
In line with this lack of information, Staff proposes a cost of living adjustment. Again, the
question is why? Staff provides no answers.
In order to make a reasoned recommendation, the Commission alta Committee must have some
rationale or reasonable basis for the rates and the adjustment,
V. Sections 07. 408, and 409 Should Remain Without Change Absent Explanation and
Rationale for Change.
Section 407 concems "Regular [Council] Meetings;" Section 408 concerns "Special [Council]
Meetings; Section 409 concerns "Place of [Council] Meetings. Tire proposed changes to these sections
weaken the Charter requirements and allows such meetings to beset by ordinance or regulation; Section
409 proposes to eliminate the home rule advantage of the Charter and simply rely on State law. This is
improper, and the Commission aka Committee should not recommend it to anyone.
The Charter of the City is unique; it is its Constitution which limits the power of the City and
limits the State's ability to direct the City over municipal affairs, As the Court of Appeal said long ago,
"The charter of a municipality is its constitution. [Citations deleted.] Any ordinance
passed by a municipal corporation within the scope of the authority expressly conferred
on it has the same force within its corporate limits as a statute passed by the legislature
has throughout the state. [Citations deleted.] To be valid,, an ordinance must harmonize
with the charter.[Citations deleted.] An ordinance can no more change or limit the effect
of the charter than a statute can modify or supersede a provision of the state Constitution.
[Citations deleted.] The board of supervisors in establishing a procedure could not
deprive a property owner of a right given by the charter. [Citations deleted.]
Marculescu v. City Planning Com. (1935) 7 Cal. App. 2d 371, 373-374. That is, the Charter limits the
power of the City. In Marculescu, the only way the supervisors could establish a procedure to deprive a
property owner of a right given by the Charter is to change the Charter.
Here, the City proposes to do this; deprive residents of certain rights that its City Council will
meet as required by the Charter. Changing these sections to allow for setting meetings based on
ordinances and resolutions deprives the residents of the certainty:of when City Council meetings occur.
Changing the location of Council meetings to locations allowed by the Ralph M, Brown Act,
Government Code section 54950 et seq., is absurd. The only limitation on the location of public
meetings in the Ralph M. Brown Act is contained in Government Code section 54961 which prohibits
public meetings
". , , in any facility that prohibits the admittance of any person, or persons, on the basis of
ancestry or any characteristic listed or defined in Section ;11135, or which is inaccessible
to disabled persons, or where members of the public may not be present without making
a payment or purchase,"
Given that City and its residents are spending $150,000,000 on the new City Hall, the residents have a
right to expect the Council to meet in the new facility. This is exactly what the current Charter
110 Newport Center Drive, Suite Zoo
Newport Beach, California 92660
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Fax. (949) 650.1181
Jun 14 2012 2:25PM Hawkins Law Offices (949) 650-1181 p.6
Paul Watkins, Chair
Members of the Charter Update Commission aka Committee • 5 , June 14, 2012
provides. The Commission aka Committee cannot change Section 409 with ample reason. Staff has
provided none.
VI. Section 421 Should Not be Changed Without Reason and the Contracting Abilities of
Emplo ey es Should Not be EIRanded.
Currently, the Charter limits the contracting power for tile; City to the Council and City Manager.
Staff s proposed changes expand this significantly. it allows the City Manager, City Clerk or the City
Attorney to designate any employee to sign any contracts without, any authorization by the City Council.
Further, given the proposed change to Section 1400(b) concerning `public officers," it is unclear how
far the proposed Section 421 would allow members of the City Manager's office, the City Clerk's
office, or the City Attorney's office to delegate contracting poweis.
Staff has provided no justification to expand the contracting powers. In the past, the City has
suffered from unscrupulous employees. Fortunately, our current staff generally conducts itself within
the bounds of the law, But the Charter should not be designed for a good or the best City staff, it must
provide brakes on the worst possible City staff. The proposed changes to section 421 do the reverse.
The Commission aka Committee should no recommend such expansions.
VII. Section 801M Must be Rejected.
As indicated above, Staff proposes to amend Section 801's employees who are exempt from the
Civil Service System to include:
"(f) New positions and/or employees not previously included within the civil service system
that are excluded by a vote of the City Council. This exclusion shall not apply to any
employees within the civil system at the time of the City Council vote."
This change could serve to eliminate the Civil Service System over a lifetime. The Council
could exclude every new employee or category from coverage in the System. The changes in 2010
concerned specific employees, the proposed changes in new section (f) could affect the entire System.
Staff has provided no justification for this proposed change, Without substantial justification for
Us change, the Commission aka Committee should reject it with little discussion.
DIII_ Conclusion and Additional Comments.
We have simply rLm out of time to provide other written comments on these and other proposed
changes. We will make future written comments and make oral comments at any meetings we attend.
However, it is clear that the Commission aka Committee has no reason to recommend any
changes because Staff has provided no written documentation to'support these 2012 changes. Oral
discussion by staff is insufficient especially because the minutes do not reflect the full discussion.
110 Newport Center Drive, Suite 200
Newport Beach, California 92660
(949) 650.5550
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Jun 14 2012 2:26PM Hawkins Law Offices (949) 650-1181 p.7
Paul Watkbs, Chair
Members of the Charter Update Commission aka Committee -6. )une 14, 2012
Thank you for your attention. We reserve all rights in making these comments and urge the
Commission aka Committee to obtain adequate and substantial information before making any
recommendations to anyone.
RCHlkw
cc; David Kiff, City Manager
Leilani Btown, City Clerk
Sincerely,
110 Newport Center Drive, Suite 200
Newport Beach, California 92660
(949) 650-5550
Fax; (949) 65&1181