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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed January 10, 2017 Written Comments January 10, 2017, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher (iimmosheraa yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the December 13, 2016 City Council Meeting The page numbers below refer to Volume 63. The passages in italics are from the draft minutes with suggested corrections shown in s*..®ut underline format. Page 154: last sentence before Item V: "Tim Whitacre, representative #-G from Supervisor Steele's Office, ..." or "Tim Whitacre, representative representing �te Supervisor Steele's Office, ... " v v ...... Page 158: Item 5, paragraph 2, erroneous last sentence: "Council Member Curry expressed concern for Mr. Allen and clarified that the attackers were opposed to the project." The above line from the draft minutes struck me as inaccurate, but in attempting to play the video of the meeting to verify what former Council Member Curry actually said, I was surprised to discover that at the time of the posting of these minutes, the video of the December 13, 2016, City Council meeting is not publicly available on the City website. To be more precise, the video is on the website, but the public is not given a link to it. That unfortunate situation appears to have arisen because of City staff's peculiar practice of first posting meeting materials (including the video) to one site ("Legistar/Granicus") and then later scubbing the records from that site, and reposting them for more permanent storage (in a modified format) on another site ("Laserfiche"). In the present case, the December 13 video link has been scrubbed from Legistar/Granicus, but not yet added to Legistar. Only by happenstance did I happen to have a saved copy of the link (which still seems to work) from having watched portions of the video over the holidays (when the link was still visible on the Legistar/Granicus page). Using that backdoor technique to access the City's video, the dialog (following Mr. Allen's description of having been assaulted in the Eastbluff Ralphs park lot) that gave rise to the above line is revealed to be as follows (starting at 37m:40s in the video): former Council Member Curry: And Mr. Allen, just to be sure, the people who assaulted you, the position they had on the project was they were opposed to people signing the petition, they were supporters of the project? Mr. William Allen: Absolutely. They were consultants for Related Companies and there were seven or eight of them. And there's a police report and so forth, so... This confirms that the rendition in the draft minutes is incorrect and misleading. A more accurate way of summarizing the actual dialog would be: "In response to a question from Council Member Curry, expressed ®. f9F Mr. Allen aP4 clarified that the attackers were consultants for Related Companies opposed to people sipninq the etition." January 10, 2017, Council Consent Calendar Comments - Jim Mosher Page 2 of 7 Page 159: Parts (b) and (c) of the Motion say they included an instruction to "conduct second reading and adopt Ordinance," yet the minutes contain nothing to indicate a second reading was actually conducted as a result of the motion. Indeed, although a reading by title typically occurs between the motion to adopt an ordinance and the announcement of the vote on the motion, a close reading of City Charter Section 412 indicates that, too, is incorrect: if the Charter were being followed, a unanimous vote to waive a full reading would have to follow the reading of the title. To avoid still further confusion on this point, I would suggest deleting from the motion the references to "conduct second reading and'. Page 159: Item XI: "Council Member Duffield discussed the recent Watershed Executive Committee meeting." Page 161: sentence after first bullet: "Assemblyman Harper presented each outgoing Council Member with a r #Vk- tes Certificate of Recognition." Item 2. Reading of Ordinances As noted in the first comment above regarding page 159 in the draft minutes, this poorly understood motion, as currently applied, seems inconsistent with the City Charter, since the vote to waive readings in full has to come afterthe reading of the title, not before it (as is the case here). In addition, at recent meetings its very existence seems to have gone unnoticed. For example, at the November 22, 2016, meetinq, Items 24 and 25 included separate and seemingly redundant motions to "waive full reading" (which seemed especially peculiar since those were introductions of ordinances and the Charter requires a reading only at their adoption). Item 3. Temporary Extension of Nonexclusive Solid Waste Franchises Some of the new regulations, as well as the possibility of changing the City's solid waste collection franchise model (which, given the structure of the contracts would apparently require many years advance notice), were discussed as Item SS4 at the Council's July 12, 2016, meeting. Since the idea of changing the model seems to have been rejected, this would seem to be one of a great many cases of a decision being made at a study session despite the frequent claim that study sessions are for study only, and decisions are never made at them. Regarding the substance of the ordinance, I'm pretty sure it was intended to read: "Section 1: The City Council authorizes the City Manager or his or her designee, to execute an amti 4nient amendments, in a form substantially similar to the attached Exhibit 8, ..." since many more than one amendment will be required. In fact, it appears authorization is needed for 37 separate amendments. January 10, 2017, Council Consent Calendar Comments - Jim Mosher Page 3 of 7 Item 4. Resolution Updating the List of Designated Employees for 2017 Under the City's Conflict of Interest Code Since the purpose of this item is promote transparency through written disclosure of financial conflicts, it would have been helpful for the staff report to clarify when, where and under what terms the resulting Statements of Economic Interest can be inspected by the public. In particular, reading between the lines, and comparing to when this matter was last visited as Item 4 at the January 12, 2016, meeting and Item 5 on January 13, 2015, there appears to be a significant change in the policy for the filing, and possibly the inspection, of forms from the City's key decision makers: The first box in Exhibit 2 continues to say the key "GC 87200" employees will file their forms with the City Clerk, who (presumably after retaining copies for public inspection) forwards the originals to the FPPC in Sacramento. However, Section 5 of the proposed resolution contradicts this by saying these employees (City Council Members, Planning Commissioners, City Manager, City Attorney, and Finance Director) will not be filing forms with the Clerk, but rather "will be filing their forms electronically directly with the FPPC." Does this mean paper copies will no longer be available for inspection in the Clerk's Office (contrary to the current policy detailed on the Clerk's website)? If so, an explanation of how the public will access these documents (I presume through the FPPC website) would seem in order. At a minimum, the discrepancy in the resolution between Section 5 and Exhibit 2 needs to be resolved. While I personally •applaud and encourage the electronic filing and retrieval of these documents, which greatly increases their availability to the public in general, and while I would encourage its extension to the remainder of the filers, it might be noted the Newport Beach City Clerk's Office currently (and strangely) lacks any facilities for the in-person display of electronic documents. Regarding the substance of the list, I have these comments, many of which have been made in past years: The City has a very confusing system of describing its employment structure. While the City Manager is responsible for administering most of the employees, under our Charter it is the Council who must "provide for the number, titles, qualifications, powers, duties and compensation of all officers and employees" (Section 601). And it is unclear to me, at least, exactly how the Council does this at present. The Council primarily appears to control the position list through its approval of the annual budget. However, Human Resources and/or the various departments frequently seem to have different "working titles" for the employees filling the budgeted positions (whose duties and qualifications are, of course, not described in the budget). An example of this that has been, previously noted is that in FY 2013-14 the budgeted structure of the City Attorney's Office went (with some fanfare) from two "Assistant City Attorneys" plus two "Deputy City Attorneys" to a total of three "Assistant City Attorneys" with no deputies — a structure that continues in the Council -approved FY 2016-17 budget. Yet the formally eliminated Deputy City Attorney position persists in the Designated Employees List and a person bearing that working title has reappeared. Similar anomalies exist in many of the other departments, making it difficult for the public to identify what budgeted or designated employees list position a particular person fills. January 10, 2017, Council Consent Calendar Comments - Jim Mosher Page 4 of 7 2. Without further explanation, it is very difficult for the public to know if the disclosure categories of Exhibit 2 are being properly applied to the employees listed in Exhibit 1. For example, without a further explanation of what making decisions that "may affect real property interests" (Category 4) means, it is difficult to understand why that would apply to members of the Parks, Beaches and Recreation Commission, but not to the City Arts Commission (who may recommend a display of art affecting property values) or Board of Library Trustees (who may encourage the development of new facilities); and conversely, why the latter two are noted as influencing contracts (Category 2, which they do), while PB&R is not. 3. 1 have not had a chance to review the disclosures filed for 2016, but in past years, the treatment of consultants appeared highly non-uniform between departments. Some department heads appeared to excuse nearly all their consultants from any disclosure requirement at all, while others appeared to apply the standards much more strictly. 4. In that regard, there does not appear to be any policy or procedure in place for sampling or auditing the submitted Form 700's to ensure they are being completed in an honest, accurate and consistent fashion. Basically, it appears to me that whatever is submitted is simply filed. It seems to me some minimal effort at quality control would be desirable. 5. While the idea of disclosure is commendable, its statewide implementation in California is problematic. In particular, a gift received or a new investment made in January 2016 is not publicly reported on the Form 700 until April 2017, long after the decision it may have influenced has been made. In view of that, the Council may wish to consider more meaningful local disclosure rules. 6. Finally, although not totally on the current agenda topic, it might be useful to remind the Category 2 employees ("whose duties involve contracting or purchasing"), of the City Charter Section 1111 requirement that "When making purchases for the City [of supplies, materials and equipment], merchants maintaining an established place of business within the City shall be given the preference, quality and prices being equal." This may well be the current policy, but it is not clear to me from staff reports that local businesses are indeed being consistently given a preference. Item 5. Declaration of Support for an Energy Partnership between Southern California Edison Company and Southern California Gas Company Neither the staff report nor the resolution is long on explaining what, if anything, the City is committing to, or what the significance of its "endorsement" is. I would in particular be interested to know if this is in any way related to the City's partnership with SoCalGas in its advanced meter antenna deployment program, a decision which I think was not well thought out, and which I think received inadequate public vetting. January 10, 2017, Council Consent Calendar Comments - Jim Mosher Page 5 of 7 Item 6. Amend the Membership of the Balboa Village Advisory Committee While I appreciate that ExplorOcean is now OceanQuest, I have never felt it appropriate that specific private organizations should have guaranteed and reserved seats on a public committee. I continue to feel that way. It also seems to me that this resolution does not represent the comprehensive revision of BVAC's charter that is probably needed. In particular, the committee's existence was last rather summarily extended by Resolution 2016-50 for the purpose of allowing it to take over the previously -unassigned task of administering funds collected in the "Balboa Village Area Benefit District." Not only does that fund continue to be confusingly referred to in Clause B of the Committee's "Purpose & Responsibilities" as "a proposed Parking Benefit District" (a description from an earlier resolution that, like "ExplorOcean," is now overdue for updating), but since administering the fund will be an ongoing problem, it's unclear why the committee has been left with a termination date of December 31, 2018. Item 7. Resolution No. 2017-4: Dissolving the Tidelands Management Committee and Referring its Duties to the Harbor Commission I generally support this recommendation, although it does seem to me to be largely the odd legacy of past power grabs in the City. The Harbor Commission seems to have been created by the Council to take away powers and duties that the people, under City Charter Section 709, had previously assigned to the Parks, Beaches and Recreation Commission, but which the Council apparently felt PB&R was neglecting. The Council's Tidelands Management Committee seems similarly to have been created by Council members who felt they could manage harbor affairs better than the Harbor Commission then in place. However, part of the rationale for creating the TMC was that it would have a larger geographic purview than the Harbor Commission, covering and addressing capital needs not only in the harbor, but also in the City's coastal and inland tidelands. Since the present proposal doesn't seem to include extending the Harbor Commission's jurisdiction to include issues related to the ocean beaches and such (if it did, one would have to wonder what significance the Charter's "B" in PB&R has?), the fit is not as perfect as the staff report implies. And since the Harbor Commission consists entirely of individuals with a very boating- and harbor -centric view of the world, it's not entirely clear they are the ideal body to provide the Council with a balanced view of priorities for expenditure of the broader Tidelands Capital Fund. The Finance Committee might be able to provide more objective advice on such matters, after receiving input from the Harbor Commission, PB&R and the Water Quality/Coastal Tidelands Committee. In summary, I don't think the TMC will be missed, but I do think the roles and boundaries between such remaining bodies as PB&R, the Harbor Commission and WQ/CT could be better defined. January 10, 2017, Council Consent Calendar Comments - Jim Mosher Page 6 of 7 Item 8. City Radio Tower Rehabilitation - Notice of Completion of Contract No. 7094-1 (16M13) From the report, this appears to be a project that was completed under budget and ahead of schedule. Although such "successes" can always be achieved simply by announcing inflated budgets and unrealistically long schedules, that does not appear to have been the case here. City staff, and their contractors, are to be commended. Item 9. Coastal Development Permit Application for the Demolition and Reconstruction of a New Restaurant at the End of the Newport Pier Since this is to be a City structure, one wonders why the design, and indeed the proposal for reuse of the pier end, has not been reviewed by the City's various boards and commissions, rather than just by the contemplated initial tenant. It is also not obvious from the illustrations in the staff report if the new structure has been designed to fit within the footprint of the old. Comparison of staff report page 9-6 with page 9-17 gives the impression the new building is larger than the old, although that is perhaps only because of the extensive "patio" areas extending into the previous public open space. Item 10. Annual Mayoral Appointments 1. With regard to the appointments in Category II ("City Council/Citizens Committees"), what has happened to the General Plan / Local Coastal Plan Implementation Committee? Has it been formally dissolved? I would think its work is never quite done. 2. With regard to the appointments listed in Category III ("Citizens Advisory Committees") -- in contradiction to Council Policy A-9 -- this list continues the fiction that Newport Beach continues to have committees of citizens independently advising the City Council, as it once did. Although Policy A-9 continues to say that Citizens Advisory Committees shall, by definition, "be comprised solely of citizens with perhaps City Council or staff liaison," the Council began, in about 2011, not only to redefine the former citizens committees by adding Council members as voting members, but made those Council members chairs of the committees. Whatever the wisdom of that change in structure, all these former citizens committees to which Council members are now being appointed should be listed in Category II ("City Council/Citizens Committees"). Aside from the Charter -defined boards and commissions, the last true citizens advisory committee I know of meeting the definition in Policy A-9 was the Charter Update Committee in 2012. 1 can think of no others. 3. That said, the Council chairs appear to have suppressed the activities of one of these so- called "citizens advisory committees," namely EQAC, and if they have no continuing interest in it, should consider dissolving it. After two years of inactivity, EQAC last met for a single time in August of 2016, at which time the members were introduced to the draft Sustainability Plan and asked to comment on it. The citizen members appeared eager to read it and reconvene, but the committee has never met again. I would suggest the Council either reconstitute this as a true citizens advisory committee that could define its own schedule, or January 10, 2017, Council Consent Calendar Comments - Jim Mosher Page 7 of 7 disband it. Having citizens appointed to a committee that never meets primarily breeds disillusionment. 4. With regard to the appointments in Category IV ("Joint Governmental Committees"), I think it's safe to say the nature and functions of many of the groups to which appointments are being made would be a mystery to the average resident. Yet I assume these are all Brown Act bodies that are supposed to meet at noticed, agendized and open public meetings. a. As such, it would have been helpful to give the public and other Council members a bit more information as to when and where they meet, and what the City's appointees are expected to do. It would have even been useful just to mention that some information about these groups, often including how the City's obligation to make appointments to them arose, can be found by following the links provided on the City Clerk's Boards, Commissions, and Committees page. But I was unable to find any explanation there of where the public could find agendas or minutes for the meetings of most. Or whether they all, in fact, still exist. I am particularly unable to find anything on the internet corroborating the continued existence of a "Hazardous Waste Material - Joint Powers Authority" or an "Inter -City Liaison Committee." c. It is equally disturbing that there does not appear to be any clear policy on how the appointees report the outcome of their activities on these committees back to either the public or their fellow Council members. 5. Regarding the specific appointments, the Mayor's recommendations are totally at his discretion, but I find it strange the primary appointees to the County's Newport Bay Watershed Executive Committee and the Orange County Sanitation District are not also appointed to the City's own Water Quality/Coastal Tidelands Committee. One would have thought a closer tie between the two would have been desirable. 6. Related to this item, although I don't see it on the Clerk's vacancy list, I believe there is currently a vacancy on the Harbor Commission created by the election of former Commissioner Avery to the Council. There is also apparently an as -yet -unannounced vacancy on the Visit Newport Beach Executive Committee. Council Policy A-2 would normally require the Mayor to appoint a three-member ad-hoc Appointments Committee to review the applications received. If the Council intends to follow that procedure, it is my belief that the Mayor's selections for the ad-hoc committee need to appear on a future agenda and be ratified by the Council as a whole. Similarly, it was the practice in the past for the Mayor to publicly seek ratification of the appointment of Council members to ad hoc committees for such tasks as negotiating development agreements or reviewing construction projects. However, in recent years that practice appears to have been ignored, and numerous shadowy Council committees (or individual Council members) seem to have advised City staff (largely in defiance of the people's injunction against that in Charter Section 406) with little or no public knowledge this was happening. Improvement in this area is needed.