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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed October 26, 2021 Written Comments October 26, 2021, City Council Agenda 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 12, 2021 City Council Regular Meeting As usual, the draft minutes contain many passages whose meaning would be difficult to decipher without reference to the video of the meeting. However, in reading the minutes I did not notice any obvious typos or misstatements, so I commend Clerk Brown and her staff for careful proofreading. I was struck, again, by current Council member and future elected Mayor O'Neill's comment on page 157 (starting at 1:24 in the video) that creating zones within the city with a designated commercial waste hauler would cause the council members to be lobbied rather than sales people going to the businesses The implication seemed to be that council members expect to be lobbied when a contract is coming to the Council. That led me to wonder about the status the City's lobbyist registration system launched by the Council in early 2020 through adoption of Municipal Code Chapter 1.28. As best I can tell, we just four lobbyists with current registrations, even though I myself have seen many people who seem to be paid lobbyists appearing before the Zoning Administrator, Planning Commission and Council, not to mention the many I would be unaware of lobbying the Council members, Planning Commissioners and City staff behind the scenes. And this despite there currently being no fee I am aware to register. Doesn't the obligation of paid lobbyists to register need to be better publicized and enforced? And if the purpose of the program is to increase public knowledge of who is being lobbied for what, doesn't the Clerk need to instructed to correct the registration form so lobbyists understand they are required to publicly disclose the matter they have been hired to lobby about? Namely, pursuant to NBMC Sec. 1.28.040.A.2.c, a description of "The legislative, quasi- judicial or administrative action or decision with respect to which the lobbyist has been employed, retained or engaged"? With the current form, in the tiny space provided under "Identify the Lobbyist's Client(s)," most lobbyists (who cannot be counted upon to have read the ordinance) unwittingly write simply write "legislative," "quasi-judicial," "administrative" or "all." The Clerk does not question this response and the public is left as much in the dark as ever about what the registered lobbyist is lobbying for or against. Item 6. Resolution No. 2021-102: Formation of an Ad Hoc Residential Care Facilities Committee I missed the reportedly lively community meeting held on this topic on October 11. I support the formation of an advisory body to provide a recommendation to the Council as to whether changes should be made to our existing regulations. October 26, 2021, City Council agenda comments - Jim Mosher Page 2 of 6 I do not support that this be an ad hoc committee of Council members. If the Council wants advice, I would, instead, suggest they follow our Charter (see related comments on Item 11) and seek it from a purely citizens committee they appoint for that purpose. A citizens committee has the advantages that it meets and deliberates in public, and its advice, whatever that may be, will be viewed with equal newness by all seven Council members, none of them having a vested stake in it or a predetermined notion of its merit. This will lead to a more open and meaningful discussion at the Council, with all seven having to do their homework rather than four assuming the other three have done it for them. As a result, we have many more than seven participants in the outcome. By contrast, a Council members ad hoc committee, however well-intentioned, meets in private. Its recommendation is based on exposure of the three members to unknown input and arguments. And when the three members' recommendation comes to Council, it typically becomes law if they can persuade just one of the remaining four. One process is lively and open. The other occurs in darkness for all but the three appointees. Item 11. Appointments to the Aviation Committee As a later item on this agenda (Item 14) the Council will consider a proposed amendment to the City Charter. It, therefore, seems appropriate to reflect on what that Charter says in Article VII (Appointive Boards and Commissions). In particular, Section 700 states that "the City Council may create by ordinance or resolution such additional advisory boards or commissions as in its judgment are required, and may grant to them such powers and duties as are consistent with the provisions of this Charter." An Aviation Committee would seem to be such an advisory body. Section 702 sets the term of appointment at four years and requires the appointments to be made by the Council, the latter of which the current item seeks to accomplish. The appointees must also be Newport Beach voters and not City employees or officeholders. Section 704 requires the advisory body be allowed to choose its own chair. The City Council has, over the years, sought to avoid these requirements by creating a new category of advisory body which it calls a "committee" rather than a "board" or "commission" and hence to which it believes the Charter doesn't apply. As a result, the Aviation Committee differs from the Charter model in many significant ways: 1. For unknown reasons, the members have six year terms rather than the normal four. 2. It includes, at least on the website, several staff people as members, even though they may not be Newport Beach residents, let alone voters — although this does not conform with the enabling Resolution No. 2019-26, which does not show them as members. 3. In addition to including, in contravention to the Charter, two officeholding Council members, one of those is traditionally imposed on the body as its chair and babysitter, rather than allowing the body to choose its own leader. October 26, 2021, City Council agenda comments - Jim Mosher Page 3 of 6 Most strangely, and most relevant to the current item (as well as Item 14), seven of committee members have to be residents of specific districts,' and can be considered for appointment only if they are nominated by the Council member who happens to live in the same district. This is completely contrary to the Charter concept that despite the requirement to be a resident of a district, all Council members are elected by the City as a whole and represent all its residents, with no special powers over the district in which they live. That said, the whole Council should be aware the appointment process for the two current vacancies has been a very strange one. According to the September 18 Daily Pilot ad mentioned in the staff report, applications from interested residents in Districts 3 and 4 were invited by noon October 1. By that deadline, only two applications had been received. One from me from District 3 and one from Eastbluff HOA President Ron Rubino in District 4. A second District 4 application, from Park Newport resident and former Balboa Bay Club concierge Patrick Hynes was received, late, on October 4. Much later, on October 13, long after the announced deadline, the Clerk received two more District 3 applications, one from Airport Working Group President Mel Beale and one from Elizabeth Brayley. I know nothing about Ms. Brayley, but to the best of my knowledge she has never attended an Aviation Committee meeting or submitted an aviation -related comment to the Council or the Committee. Mr. Beale and I have participated in the Aviation Committee meetings for over a decade. While it is common for the Council to appoint people to boards, commissions and committees whose meetings they have never previously shown the slightest interest in attending, and while I can appreciate a majority of the Council might find me unqualified, it is less clear to me that they would wish to choose Ms. Brayley over Mr. Beale, as Councilman Duffield asks them to do through this exceedingly opaque process. SA—URDA%� SIP'EMBER M 2021 AS Legal Notices I Legal Notices na-04 NOTICE 0r UNKHEDULED VACANCIES FOR THE AVIATION COMLMtITTEE The City of Newport Beach 's currently accepting appl cd tions Lo fi I lvoo unsr.heduled vracancies on L1.e AMiation Committee. + �isLricl3L:esi�•7a'ehlembe• 1nomihated by the District CoundI lNember with a term end Ing 6J 25} • 7i strict �I f}esit3na:e Erle mbar I nom i hated by the district Cound I Member With a lean (41ding 6 341221 The Aviation C-Dmrnittee meets cn an as needed or cuarterly basis. +An ap-pllcatim can be obtained from the Clty Clerles O'fKeat 107 Civic Center Drive. or can be serttoyou by rall'nrl ;949) 644-3005. The application and Committee irforrratiar. :an also he acressPd thm igh the Clt�s weasire al Yi,N-w.ne,nroc •Lbeachta.nowlyacar cw. Applications will he accepted until naan on Fridayr October 1, 2027. ' The enabling resolution does not anticipate the effects of redistricting, either the normal decennial kind or the reduction from seven to six districts proposed by Item 14. Most likely, committee members would remain in office until their terms are completed even though redistricting caused them to no longer be a resident of the district number from which they were appointed. October 26, 2021, City Council agenda comments - Jim Mosher Page 4 of 6 Item 13. Ordinance No. 2021-23: Fifth Amendment to the Hoag Development Agreement As I have written when the previous amendments came before the Council, I cannot imagine the City of Newport Beach denying any reasonable development request from Hoag, so it is baffling to me why Hoag would feel the need to pay for a development agreement protecting them against denial of the future development described in it. It also continues to disturb me both that Hoag anticipates a $3 million surplus, and that they would burn it on this rather than using it to improve service; or alternatively, reduce what they charge for those services until they have no surplus. Item 14. Calling an Election for a Proposed Charter Amendment to Provide for the Direct Election of the Mayor of the City of Newport Beach I submitted extensive comments about this topic when, at its last meeting, the Council considered putting this item on the agenda. Those included a multi -page chart exploring other California cities that elect (or don't elect) their mayor. As indicated then, even if one thought having the voters determine who out of the Council's elected members should preside over its meetings, which I don't, this particular proposal to achieve that contains many quite arbitrary and poorly thought out provisions. One of the most arbitrary and disruptive of those is the mandate it would create to reduce the number of Council districts from seven to six. I noticed (see October 20 letter in Newport Beach Independent) that some of the proponents will be attempting to frame the question currently before the Council as the no-brainer one of "Do they trust voters to make a decision about electing the Mayor?" No politician could say "no" to that. But that is not the question before the Council. The questions before the Council are: Does it want to short-circuit the normal process by which proponents could put "their"' proposal on the ballot, which is, within six months, to collect sufficient signatures to demonstrate interest in the matter, and instead immediately commit the substantial taxpayer resources' required to put it to a vote? 2. Out of the vast universe of possible ways to elect a mayor, immediately commit to providing voters with this one possibility, and no other. 2 1 put "their" in scare quotes because I suspect few, if any, of the proponents had any hand in writing the proposal. 3 Clerk Brown tells us it will cost $215,000 to put this on the June 2022 ballot. She does not tell us how much it would cost to put it on the November ballot. October 26, 2021, City Council agenda comments - Jim Mosher Page 5 of 6 Given the very long time before the Council has to make a decision (Elections Code Sec. 10403 allows the Council's resolution to be submitted to the County Registrar of Voters as late as 88 days before the election), I would suggest the Council either: 1. Reject the proposal; or 2. Appoint a citizens commission to recommend what, if anything, regarding election of the Mayor the Council should, on its own initiative, put on a future ballot. As to why I hold what to some must seem the counterintuitive idea that electing the mayor is a bad idea in a moderate-sized city like Newport Beach, with a council-manager form of government, I believe my reasons were explained in my previous comments. I can only reiterate that I view our council, as I believe the Charter does, as a deliberative body with seven votes of, by design, equal power, the seven having been entrusted to make decisions for those who elected them. In my opinion, a deliberative body deliberates best and most productively when it chooses for itself the presiding officer they are most comfortable with. For what I suspect is that exact reason, our City Charter Section 704 prohibits the Council from deciding who shall chair the boards and commissions it appoints. Instead, it requires those bodies to choose their own chair. It would, therefore, be quite odd, not to mention inconsistent, for our charter to prohibit the council from designating the chairs of the boards and commissions they appoint, but at the same time require voters to designate the chair of the council they elect. Moreover, as local lawyer and historian Walter Stahr points out in his thoughtful commentary in Voice of OC, Newport Beach voters already elect their Mayor: City Charter Section 404 requires the Mayor to be selected from among the elected Council members. You can't become Mayor without being elected by a majority of the voters. We simply don't designate which of our choices will be Mayor in a particular year. Designating one of the seven Council members as being more influential than the others seems counterproductive to thoughtful, inclusive deliberation. And it makes particularly little sense when, as in the proposal, the other six are also elected at -large and equally represent all the voters of the City. As indicated in the previous chart, most of the smaller city -manager cities with an elected mayor adopted that system only recently as part of a forced transition to by -district elections. I naively assumed this was because of a wish to retain at least one council member with a citywide perspective. At least in some cases, the true reason was to ensure that after drawing district boundaries all the incumbents could continue to run for reelection. And in non -charter, general law cities with that wish, the "elect our mayor" system did not result from or require voter approval. It was simply imposed on the voters by the incumbent council as part of the districting process. The voters had no say in the matter (other than speaking at the districting hearings) and would have had to referend against it if they opposed it strongly enough. Stanton, the only Orange County city smaller than Newport Beach that directly elects its mayor is a case in point. October 26, 2021, City Council agenda comments - Jim Mosher Page 6 of 6 By 2015, many Stanton residents had become disillusioned with a 5 -member council whose 3 - member majority, all living within yards of one another, had been in power for more than two decades. The voters successfully petitioned to put a Measure RR on the 2016 ballot, which passed overwhelmingly (75% to 25%), imposing a 2 -term limit on their council members — although, to their consternation, their city attorney assured them it could only work prospectively, so the majority had at least another eight years. Very shortly thereafter, their city was forced into going from at -large elections (the system in effect when term limits were imposed) to by -district elections because of the threat of a lawsuit involving the historic denial of representation on council from its large Hispanic and moderately large Asian populations. As in Newport Beach, the council gets to propose the districting plan, and because the three long -serving council members lived on the same street within 350 feet of one another (according to the Measure RR ballot argument), it was impossible to draw the 5 districts in a way that all three would be in different districts and eligible to run for reelection. So, they came up with the idea of having only 4 districts with the 5th council member elected as an at large mayor. That let them strategically split the street so two neighbors could run as representatives for separate districts, and the third, their more senior neighbor, could run as at -large mayor. Being a general law city, this did not require voter approval, but was simply adopted by the council as Ordinance No. 1073, which can be found on page 376 of their November 28, 2017, agenda packet. It seems telling that given their limited purpose of allowing all three to run, the council majority did not bother to specify any special duties or privileges of the elected mayor. In other words, term limits were demanded by the people of Stanton. The idea of electing their mayor was not, but the voters now have this in their municipal code as an arcane legacy of three council members wishing to all be able to run again. Other cities may have similar stories. Newport Beach, having the current system for selection of the Mayor from among the elected Council members written into our Charter, unlike Stanton, needs voter approval to change to an elected Mayor system, with or without redistricting. And because of that, whatever the Council does on this item, if it goes to the voters next year I hope they will not be so naive as to blemish our Charter with poorly -conceived language inserted for the arcane reason of allowing a single council member, when termed out, under our current Charter, in three years, to immediately run for reelection as Mayor and lord over the Council as its unquestioned leader for another eight years.