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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed November 19, 2019 Consent Calendar Comments November 19, 2019, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the October 22, 2019 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections indicated in s*r�At underline format. The page numbers refer to Volume 64. Page 238, Item XII, Brenner, bullet 1: "Attended the Economic Forecast, a Corona del Mar Business Improvement District Beautification Award presentation to Engel and '��-s Volkers, ..." Page 238, Item XII, Brenner, bullet 2: "Discussed Mind OC, headed by Dr. Richard Affable Afab Page 242, vote before Item 11: "The With Council Member Muldoon absent, the motion carried unanimously." Page 243, vote before Item 12: "The With Council Member Muldoon absent, the motion carried unanimously." Page 244, end of first paragraph: "... exist, as shown on the slides depicting Collin Collins Island, ..." Page 244, vote before Item 15: "With Council Member Duffield recusing himself and Council Member Muldoon absent, the motion carried 5-0." Page 246, vote before Item XIX: "The With Council Member Muldoon absent, the motion carried unanimously." Item 3. Adoption of Ordinances Modifying the City's Regulation of Municipal Campaign Contribution and Expenditure Limits and Establishing Lobbyist Registration, Reporting and Disclosure Requirements I commented at length on these two ordinances when they were introduced as Item 13 on November 5. Tying the lobbyist ordinance to the County accepting the registration function seems both confusing and completely unnecessary to me when the same function could be performed as easily — and better — in house. And the County will not ask for any information about who the paid lobbyist has been hired to lobby, or about what (or how much they are being paid — which will make indistinguishable a lobbyist paid $500 from one being paid $50,000). Whoever processes the registration papers, the expectation seems to be that this ordinance will cause people we think currently lobby officials for pay, but whose status we aren't sure about, to magically reveal themselves. I don't see that happening. Among other problems, it contains Nov. 19, 2019, City Council Consent Calendar Comments - Jim Mosher Page 2 of 9 nothing comparable to the system of notice and required response in the campaign contribution ordinance, leading to a proof of willful violation. Instead, all violations will likely have to be presumed unintentional, leading to a payment of $50 and a listing on the City website — conditions barely distinguishable from the normal registration procedure'. Similarly, the campaign contribution ordinance contains no assurances that the City Clerk will systematically detect and send notices of the violations it defines, nor any obligation, on her part, to investigate allegations of violations brought to her attention. Despite these obvious shortcomings, no adjustments were made when the committee's recommendations were presented to the full Council at first reading on November 5. Instead, the public was lectured on its failure to provide comment during the six months from the committee's creation till its one public meeting on October 14. 1 was deeply offended by this. At no time that I can recall during that six months had the committee asked the public for comment nor had it ever revealed to the public what it was reviewing or considering. Indeed, at no time during the six months was the very existence of the committee mentioned on the City website, other than in the obscure -to -most archive of the meeting in which it was created. The absence of comment is hardly surprising when one does not ask for comment or even advertise one's existence. Item 4. Resolution No. 2019-99: Amending the Expiration Date of the Ad Hoc Committee for Local Business Advancement I appreciate the committee's desire for more time. It might be noted, however, that in the four months of its existence, the committee has held no noticed meetings to seek general public input on its topic, nor has it shared any progress report with the remainder of the Council so that it could review what it may be considering or thinking about recommending, and see that it is still on track. I fear this will go the way of other ad hoc advisory committees (see Item 3, above, as an example), with a full-blown recommendation being revealed on short notice (possibly the Thursday before the Tuesday Council meeting) and requiring a single extra vote on the Council for adoption. Likely only those "in the know" will know what the recommendation will be prior to its posting. And the public and remainder of the Council that are not "in the know" will have very little time to consider it, or think of alternatives. That may be legal, but it doesn't seem like a particularly good way for government to work. " Voluntary registration with the County as a "County lobbyist" requires paying a 75 fee to have one's name and contact information, and that of one's client copied from the paper registration form onto a web - posted spreadsheet (requiring Microsoft Excel to display). Based on cities that do reveal the amounts paid, many lobbyists receive remarkably large fees for attempting to influence officials, from which $50 or $75 would likely be regarded as a trivial cost of doing business. Nov. 19, 2019, City Council Consent Calendar Comments - Jim Mosher Page 3 of 9 Item 5. Resolution No. 2019-100: Restructuring of the Homeless Task Force Since the City Council created the Homeless Task Force, it is presumably within its power to dissolve ("restructure") it. But the real theme of this item, and it is a commonly heard one, is that the Brown Acte — a piece of California state open meeting legislation applicable to elected local officials that attempts to ensure the public's business will be done in public — is too constraining for those subject to it to efficiently and effectively execute the duties they were elected or appointed to perform. Therefore, rather than attempting to comply with its constraints, ways must be devised to allow those nominally subject to the Act to act "more like a private business" and to meet, confer and instruct administrative officials without its constraints. It is an argument as seductive, and as seemingly compelling, as it is wrong. Like many bad ideas, it is uninformed by history and the many lessons that led to the Brown Act and its evolution, namely, that government works best and most equitably when all its discretionary actions are taken deliberately, in public, with public scrutiny. That such a process is slower than it might be is part of makes the process good in the long run. In this case, the Council, like many before it, has purportedly found a loophole in the many gray areas of the Brown Act that allows it to create a "rapid response team" that can deal more nimbly with homelessness issues than a Brown Act compliant Task Force can. It seems telling that in seeking the existing Task Force's concurrence with this restructuring proposal, a purported Council Subcommittee on Homelessness encouraged the Task Force to violate the Brown Act in the most fundamental way imaginable. To explain, one of the most fundamental tenets of the Brown Act is that members of the public should to be able to tell from an agenda posted in advance of a meeting whether any business of interest to them will be conducted there, with an explicit assurance that no matter not listed will be acted upon. Based on that assurance, I carefully read the agenda of the November 12, 2019, HTF meeting, and chose not to attend. It is the only HTF meeting I have missed. I chose not to attend because the business listed appeared completely routine and I thought my time could be better spent reviewing some 104 pages of code revisions to be considered by the City's Harbor Commission the following night, leaving time on November 12 to attend what 2 The Brown Act (Calif. Gov. Code Sec. 54950 et seq.) began as a very brief statute adopted by the Legislature in 1953, requiring local governing bodies (county and below), and their boards and commissions, to hold all their meetings on a regular schedule (to which special meetings could be added on 24-hour notice to the media) and allow the public to attend each. The only exception was to meet in executive session to discuss matters affecting the employment of a specific employee, unless that employee asked for the discussion to be conducted in the open meeting. Over the ensuing years, it has grown immensely, and now contains often -detailed provisions requiring notice, agendas, public comment, and a myriad of other things. Its authority has also been enshrined by the people in the California Constitution though the addition of Article I, Section 3(b) by Proposition 59 in 2014. That requires a liberal interpretation of "the people's right of access," under existing law, to the meetings and writings of public officials (at all levels of the State), and requires any future narrowing of any of those rights to be justified by a compelling public interest. Nov. 19, 2019, City Council Consent Calendar Comments - Jim Mosher Page 4 of 9 looked like a more interesting General Plan Update Workshop scheduled at the opposite end of the city shortly after the expected conclusion of the HTF meeting. Reviewing the agenda, again, now, nothing whatsoever in it warned the HTF members (or the public) that they would be asked to make a decision about the dissolution of their membership. Quite the contrary: in addition to the hearing reports from the various subcommittees on which the citizen members serve (and which are now to be dissolved although they may informally continue to provide advice), they were told they would "Provide input into the 2020 Goals and Objectives and direct staff to forward to the City Council for consideration." The accompanying staff report indicates this was an agenda topic requested by "Task Force members," although the draft minutes from October 15 suggest "recommendations to Council to modify the purpose and responsibilities of the Homeless Task Force; and establishing objectives and goals for the coming year"were topics requested by the Chair, with an instruction that "Members of the public may send suggestions for goals and objectives to Assistant City Manager Jacobs, Homeless Coordinator Basmaciyan, or Chair O'Neill." Although one would have expected the purpose, goals and objectives of the HTF to be refined at this meeting (with eventual Council concurrence), nothing publicly even hinted that there was any intention to do anything other than continue into the coming year with its existing HTF structure. It, therefore, came as a complete shock to see reports in the media that on November 12 the HTF had agreed to restructure itself, in particular, to release its citizen members and cease to be a Brown Act body — a topic not remotely on the agenda. Setting aside the November 12 Brown Act violation, the reasons offered at that meeting for releasing the citizen members represent a misunderstanding of the Act and how "legislative bodies" are expected to function within it. Having missed the meeting, I asked to review the audio recording. For six minutes starting at 11 min:30 sec, the Chair (acknowledging it was slightly off -topic) announced decisions about the restructuring of the HTF made "at the subcommittee level" and sought the larger HTF's concurrence in them. It was said the purpose of the HTF was for the citizen members to educate the Council members, and that the Council members needed to make decisions faster. The subcommittee system had "siloed" information in a way that it could not be shared except at the monthly meetings. And meeting as a non -Brown Act group of Council members would allow the three to interact with the public in a more informal workshop -like setting, dispensing with such things as an ordered agenda and a single 3 -minute opportunity for members of the public to speak with them. Finally, the non -Brown Act group of Council members could report their progress to the full Council in reports placed on the consent calendar at the Council's public meetings. 3 The three Council members on the HTF apparently viewed themselves as a non -Brown Act Council subcommittee on homelessness independent of the HTF as a whole. While it is technically true that any five members of the 10 -member task force can meet privately to discuss HTF matters, as long as they don't share their discussions with any other members except at the public meetings, I am not aware of the Council appointing a separate Council subcommittee. Nov. 19, 2019, City Council Consent Calendar Comments - Jim Mosher Page 5 of 9 The flaws in this are: 1. The HTF was presumably created based the assumption that recommendations collectively agreed to by the majority of body of 10 equals (3 Council members plus 7 citizen experts) would be better than those made by three Council members deliberating on their own. Reverting to three Council members defeats the intent of collaborative decision making. 2. A non -Brown Act congregation of three Council members cannot be empowered to make decisions of any kind, rapid or not. They can only provide advice on the topic they've researched for consideration by the Council as a whole. If they believe they have been empowered to make decisions, they must make those decisions, and hold the discussions that lead to them, in public, just like the HTF. 3. If the HTF finds sharing information between members monthly too constraining, it can meet as frequently as it needs. 4. The "soiling" of information is the result of the HTF's decision to create subcommittees to which it has assigned broad open-ended subject -matter designations rather than discrete, specific problems on which a specific recommendation is needed for consideration by the larger group by a specific time. 5. Nothing in the Brown Act constrains the format of public meetings as long as long as the topics discussed are confined to those announced on the agenda. The Brown Act does not dictate a committee -audience seating arrangement or a 3 -minute rule. 6. Nothing in the Brown Act constrains the HTF from reporting to the Council at the Council's public meetings, or seeking advice from it there. The solutions are: 1. Continue to respect the expertise of the 7 citizen members by retaining the present structure and committing to recommendations to Council made only collectively, by all 10 members, not just by the 3 Council members advised and "educated" by the citizen members. 2. Commit to confining the HTF's activities to making recommendations for consideration by the full Council, unless and until directed by them to do otherwise. Do not directly direct or advise staff as to what to do to solve homeless issues. 3. Hold public meetings as frequently as needed for all 10 HTF members to exchange information. 4. For subcommittees to privately research a topic only as the need arises for recommendation (for the full HTF to consider) on a discrete question by a specific date. 5. Conduct the public meetings on noticed topics in a format that encourages participation by the public. 6. Report regularly to the City Council, and seek guidance from them. Nov. 19, 2019, City Council Consent Calendar Comments - Jim Mosher Page 6 of 9 To this it might be added that I am not aware of any of the Council's actions to date on homelessness, other than with regard to panhandling signage, having been based on recommendations from the HTF. In particular, to the best of my recollection the Council has never, as a noticed agenda item, publicly discussed anything about the need, nature or locations of homeless shelters that was based on advice or a recommendation from the HTF. Nor, aside from panhandling signage and the present item, has anything about what the HTF has been doing been agendized as a topic for discussion by the full Council. As stated at the beginning, since the City Council created the HTF, it is presumably free to dissolve it. However, it cannot claim it is making that decision based on a recommendation from the HTF. Any recommendation the HTF may have made on November 12 is legally null and void since it was made in flagrant violation of the Brown Act, without prior notice to the HTF members that they would be asked to make a recommendation on that subject, and without informing the public that such a recommendation would be considered, thereby depriving interested members of the public of the opportunity to attend, observe or attempt to influence the decision. Item 14. Final Tract Map No. 18108 for a Mixed -Use Condominium Development Located at 410 and 412 29t`' Street Per staff report page 14-55, this is the project that was known as the Ullman Sails Lofts when it was before the Planning Commission as Item 3 on July 20, 2017. The owner was identified at that time as "Cannery Sail House, LP" rather than the "Cannery House, LP" mentioned in the opening sentence of the Discussion. It appears the former continues to be correct. I believe I missed the July 2017 hearing due to a family emergency, and do not recall any details related to this. It might be noted that it is coming to the Council as it involves subdivision, and General Plan Policy LU 4.2 (possibly not applicable to this mixed use land?) generally prohibits new residential subdivision unless it is reversing an earlier merger by reverting to originally underlying lots. Regarding the substance of the request, I somewhat understand the Council being asked to approve the agreement and securities, as well as the map. But I rather doubt it has the technical expertise to know if the map is correct or not, particularly without any guidance in the staff report as to what it is supposed to be looking for and approving. Item 17. Amendment No. Two with Basin Marine for Balboa Yacht Basin Management Services This item presents an interesting contrast with an issue that may be coming to the Council in January if it receives the Harbor Commission's recommendations for revisions to Title 17 of the Municipal Code (the Harbor Code). Nov. 19, 2019, City Council Consent Calendar Comments - Jim Mosher Page 7 of 9 The City owns boat slips at Marina Park and at the Balboa Yacht Basin. As I understand it, City personnel directly administer the slips at Marina Park, while it contracts with David New and his Basin Marine team to perform some of those administrative functions at the Yacht Basin. In making decisions about rentals and related matters, one assumes Mr. New is following the same rules as the City staff at Marina Park, or at least rules established by the City government (ideally in or through Title 17). In addition to boat slips in marinas,4 Title 17 also contains rules for the administration of the mooring fields that have been established in the public waters of the harbor. And it contains some legacy language of uncertain origin in Section 17.60.040 about mooring fields that have historically been assigned for exclusive or near -exclusive use by members of the Balboa Yacht Club, the Newport Harbor Yacht Club and the Lido Isle Community Association (which are specifically named as among the few entities other than natural people allowed to own mooring permits'). As became evident in the responses to Item 3 on the Harbor Commission's November 13 agenda, certain members of those clubs, with the support of the larger Mooring Association, read this as the Council delegating to the respective clubs and their dockmasters an administrative authority similar to that being here conferred on Mr. New, or actually a much broader authority. For they contend the clubs and their dockmasters should be able to establish whatever rules they see fit for the use of the moorings under their control. I trust the Council will see this is wrong on at least two levels. First, Title 17 should not be establishing rules that differ depending on the named entity to which they are applied (this is as wrong as passing a law that says "The speed limit is 25 mph, except for Jim Mosher to whom it doesn't apply). Second, the Council cannot delegate its legislative, rulemaking power to a third party unaccountable to the people. Mr. New, we trust, is not being empowered through the present Council action to make special rental rules for his friends. Neither should the dockmasters of the yacht clubs named in Title 17 be so empowered. Item 18. Approval and Award of Professional Services Agreement for Integrated Library System Software with SirsiDynix I don't know if the Council finds it as strange as me that the staff report makes no mention of a recommendation regarding this item from the City's Board of Library Trustees. 4 Curiously, I am unable to find any Council -imposed regulations on the use of the City's public marinas in Title 17, and I honestly don't know where they are. 5 None of the harbor's other private yacht clubs enjoy this privilege. Title 17 does allow issuance of mooring permits to "marine educational entities" including "Balboa Island Yacht Club for the purposes of youth education in boating and marine activities; Kerckhoff Marine Laboratories for the purpose of marine and oceanographic research; and American Legion Post 291 for the purpose of serving veterans and their families." Nov. 19, 2019, City Council Consent Calendar Comments - Jim Mosher Page 8 of 9 The proposed Integrated Library System will provide not only the back -of -house functions used by library staff, but also the public interface seen by library patrons, both in person and online, for the next many years. One might have thought the Board would have wanted to review the options available. I have missed a couple of BLT meetings this year because they were scheduled at the same hour as Council meetings, but I don't believe they did that. If they did, it would have been good to see their recommendation. Item 19. Approval of Professional Services Agreement for SCADA System Services The agenda is unusually uninformative as to what this item is about. Without reading the staff report it seems unlikely many people reading the agenda will know that "SCADA" is an acronym for "Supervisory Control and Data Acquisition" or that that mouthful refers, in this case, to the electronic system that monitors and controls the City's water and wastewater flows — words not used in the agenda. In short, to most, it will be a complete mystery what the Council is being asked to spend $1,000,000 on. Agendas are not supposed to be that way. Members of the public are supposed to be able to tell from them if a topic of interest will, or will not, be discussed at the meeting. Item 20. Adoption of 2019 Sewer System Management Plan Update 1. Shouldn't the Council's approval of this revised plan be memorialized by a resolution, as many lesser Council actions are? 2. It would obviously have been good to provide a redline so the Council (and public) could see what changes it is being asked to approve relative to the Plan adopted as Item 11 on July 8, 2014. 3. It is good to see the City's continuing promise in Section (VI)(b) (staff report page 20-32) "to respond to all spills within the city' (as opposed to only those within the service district). The importance of this was pointed up by the large August 31, 2013, spill on Anniversary Lane. Newport Beach residents understandably assume their sewer service is provided by the City. In that case, the correct provider, the Costa Mesa Sanitary District, received substantial fines, in part as a result of its delayed discovery of the problem (initially, but erroneously, reported to the City). I did not attend the hearings, but from the Water Board document linked to above it appears CNB crews provided exemplary response to that out -of -area incident, consistent with the Plan (CMSD crews provided similar out -of -area support to CNB in the case of a Balboa Island under -harbor sewer main rupture). 4. But as to the City's service area, what is the status of the possible transfer of portions of the existing CNB system that flow into the CMSD collection mains (see CMSD Item C.8 from February 12, 2019)? 5. 1 also see the elimination of "inflow" (water entering the system from unexpected sources other than cracks and leaks) is part of the first goal of the management plan (staff report page 20-7). During the environmental review of reconstruction of the Orange County Nov. 19, 2019, City Council Consent Calendar Comments - Jim Mosher Page 9 of 9 Sanitation District's Back Bay Bridge Pump Station (near the intersection of PCH and Bayside Drive), I recall it being stated that the system had to be substantially oversized due to wastewater flows from the service area nearly doubling during major rain events. Speculation was this was due to floodwater on Balboa Island seeping into the sewers as well as older homes, inland, directing rain gutter flow into the sewer. The proposed plan mentions sources of inflow, in passing, on staff report page 20-14, but it does not appear the Plan has any particular plan to actively reduce them. CMSD, I know, has devoted considerable effort to replacing manhole covers in low-lying areas with ones without pick - holes as well as sealing around manhole edges. Should CNB be doing the same? 6. Possibly such an effort is included in the "Sewer Master Plan" mentioned on several pages of this Management Plan. I have, however, been unable to find the Sewer Master Plan on the City's website. I did find a $632,776 contract for a consultant to prepare a "Sewer Master Plan" update (approved as Item 9 on July 25, 2006) and a $48,248 contract (C-4495) from 2010 for the same consultant to update it. Has it never been presented to the Council or the public?