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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed June 27, 2023 Written Comments June 27, 2023, 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 June 13, 2023 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in t4keGuunderline format. The page number refers to Volume 65. Page 562, Item SS3, paragraph 3: "Mayor Blom read a proclamation and presented it to the Newport Harbor High School Boys Volleyball Team, andl Coach Andrew Mabry thanked Council for the recognition." [for both clarity and consistency with preceding two paragraphs] Page 562, Item SS3, paragraph 4: "Mayor Blom read a proclamation and presented it to the Corona del Mar High School Debate/Model United Nations Team, and Coach Laura Mayberry thanked Council for the recognition. Page 562, Item SS4, paragraph 1: "Melissa Pasa utilized a presentation to provide an overview of the improvements to the Santa Ana -Delhi Control Channel, background, existing conditions, project goals, objectives, considerations, purpose, scope, flood control improvements, regional trail linkage, Mesa Drive multi -use trail, preliminary design concept, Bayview Bridge concept, Pegienal tFall linkage' preliminary project schedule, community engagement, and project updates." [remove duplicated phrase] Page 562, Item SS4, paragraph 3: "Jim Mosher questioned whether the six -year service life of the bridge was anticipated in 2017 when it was built." [note: The minutes are correct, but I misunderstood Ms. Pasa's presentation. The bridge to be replaced, although possibly not the original, is actually considerably older than six years. The 2017 work referenced by Ms. Pasa was shoring up of that bridge's footings to address erosion, and it was, apparently, conducted with an expectation that the entire bridge would be replaced with a longer one in the future.] Page 564, paragraph before Item IV: "City Attorney Harp announced the Closed Session agenda a that the City Manager and City Attorney will be recusing themselves on the labor negotiation item due to financial impacts." [Announcement of closed session agenda items appears three paragraphs before.] Page 566, Council Member Stapleton, last bullet: "Attended the Water Quality/Coastal Tidelands Committee meeting and announced their focus on beach sand erosion,; also attended Balboa Island parade, Newport Island summer kickoff, Balboa Island Merchant's Association meeting, and the Wooden Boat Festival' Page 574, Item 21, paragraph 2: "Council Member Stapleton commended staff for their work on this matter, expressed interest in uniformity with new construction on the board walk, discussed subterranean garage and storage designs, proposed a two -foot set baG setback from the property front, supported boardwalk -facing stairs, more discussion on side entrances for middle units, and the recommended heights." Page 574, Item 21, paragraph 5: "Senior Planner Westmoreland utilized the presentation to introduce the revised code amendment text: to allow a 3-foot Front Yard Setback June 27, 2023, City Council agenda comments - Jim Mosher Page 2 of 13 encroachment ,c� and minimize the interior side encroachments." ["3' FYSB" was part of the title of the slide shown, but repeating it only adds confusion. Three feet refers to the encroachment allowed for VE structures into the normally -required setback from the boardwalk, which I believe is five feet. The difference of two feet allows for the "two -foot setback from the property front" proposed by Council Member Stapleton three paragraphs before.] Page 574, Item 21, paragraph 6: "In response to Council MemberAvery's question, Senior Planner Westmoreland stated that the house shown in the presentation was built in 2009 or 2010;. Community Development Director Juriis confirmed new homes will be built with caissons that are 30-50 feet deep, and the foundation cost is about $1,000,000." Page 575, Item 21, end of motion at top of page: "... and c) adopt amended Resolution No. 2023-37, A Resolution of the City Council of the City of Newport Beach, California, Authorizing Submittal of a Local Coastal Program Amendment to the California Coastal Commission to Amend Title 21 (Local Coastal Program Implementation Plan) of the Newport Beach Municipal Code to Establish the Special Flood Hazard (VE) Overlay District (PA2018-075)." [Although it may not be obvious from the minutes or the video, the revised language presented by Senior Planner Westmoreland was inserted into both the ordinance and the corresponding exhibit to the resolution.] Page 576, Item 23, paragraph 4: "Mayor Pro Tem O'Neill commended Finance Director AI - Imam, the Finance Department, City Manager, Finance Committee members, and members of Council, reviewed the budget focus areas, and concurred with Mr. Mosher's correction related to Council Policy F-3." [The suggestion was to correct the budget -adopting resolution to match Policy F-3, not to change the policy to match the resolution.] Page 578, paragraph before Item XX: "The motion carried unanimously." [The minutes do not show any motion having been made to vote upon, and the video shows staff indicated no vote was needed.] Item 3. Ordinance No. 2023-7: Amending Newport Beach Municipal Code Section 3.36.030 Related to Cost Recovery Given the numerous repetitions in the proposed Exhibit "A" of appeal fee cost recoveries contingent on the success or failure of the appeal, it is good someone noticed the person paying the cost is the appellant and which fee is to be charged is dependent on the appellant's success or failure, not the applicant's (see staff report pages 3-11 through 3-15). That said, it is somewhat disturbing that, as seems common in Newport Beach, at the June 13 meeting where this proposed ordinance (with that change and many others) was introduced, a companion Resolution No. 2023-30 was adopted setting fees based on the assumption that on June 27 this ordinance would be adopted without any change or any debate as to its interpretation. That is disturbing because there is not supposed to be any guarantee a proposed ordinance will be adopted at its second reading, and not, instead, either rejected or re- introduced in altered form. In fact, a change was already made to the proposed Ordinance No. 2023-7 on June 13 regarding the cost to appeal Coastal Development permits which does not June 27, 2023, City Council agenda comments - Jim Mosher Page 3 of 13 seem to have been made to the Resolution No. 2023-37 fees adopted at the same time (see line 247 of its Exhibit 1, Schedule of Rents, Fines and Fees). It similarly remains strange that under the proposed scheme, for nearly all unsuccessful appeals, the charge to the appellant is set at "50%" of cost, yet for unsuccessful appeals of Chapter 17.65 decisions (and only those) a fixed dollar amount is specified. I do not recall hearing an explanation of that. It also seems notable that for Chapter 17.65-related decisions, there is a different dollar cost for unsuccessfully appealing to Harbor Commission than for unsuccessfully appealing from the Harbor Commission to the City Council. And that although those differ, the same dollar amounts independent of whether the decision being appealed was made by the Community Development Department, the Public Works Department or the Harbor Department. If the cost of processing a Chapter 17.65 appeal to the Harbor Commission is different from the cost of appealing to the City Council, one would guess that the cost of processing an appeal of a Planning decision to the Planning Commission is different from the cost of processing an appeal of the Planning decision to the City Council. Yet (see page 3-12) that was not the case formerly, when they were both set at $1,715, nor does it seem to be the case under the proposed table, where they are both at "50%." At least in the (in my view prematurely) adopted Resolution No. 2023-30, staff interprets "50%" to set a $2,116 fee for both (if unsuccessful).' — a 23% increase (see line 243 in the Master Fee Schedule adopted on June 13). On June 13, 1 asked the Council to clarify how they interpreted the "50% of cost" appeal fee they would be enacting if they adopted Ordinance No. 2023-7. Does it mean staff should charge 50% of the actual cost of processing the appeal? Or 50% of some average studied cost? I would note that staff itself seems uncertain what the percentages in the Ordinance No. 2023-7 Exhibit "A" mean. Based on the Resolution No. 2023-30 fee schedule they asked the Council to adopt, in most cases, as noted above for unsuccessful planning decision appeals, they interpret "50%" cost recovery to translate to a fixed dollar amount, independent of the complexity of the appeal. But for unsuccessful appeals not otherwise specified, they interpret the identical "50%" to mean "The fee shall be calculated utilizing the full and burden rate of personnel. Fee should not exceed actual cost. 50% Recovery per MC. 3.36.030 Exhibit A — New Fee 2022" (see notes to line 7 in Master Fee Schedule adopted on June 13). Even more ambiguous is the proposed "50% - 95%" cost recovery for unsuccessful appeals to the Council of Special Event permit decisions (page 3-15 of the present staff report). In Resolution No. 2023-30, staff asked the Council to set that at a fixed dollar amount of $1,890, independent of the complexity of the appeal, but I have no idea where that falls in the 50% to ' 1 have not heard an explanation of the 23% increase in the planning appeal fee from $1,715 to $2,116, and do not know if it is the result of a new study of the cost of processing the average planning appeal, or if 50% of the cost of all appeals is now being allocated to the unsuccessful appellants, making them effectively subsidize the (very) few successful ones. June 27, 2023, City Council agenda comments - Jim Mosher Page 4 of 13 95% range for a typical appeal, or if it ever exceeds the actual cost (see line 1051 in the Master Fee Schedule adopted on June 13). Finally, on June 13, ahead of knowing whether Ordinance No. 2023-7 would be adopted or not, staff also asked the Council to adopt Resolution No. 2023-31 changing the Paramedic Subscription Program Fee. NBMC Chapter 3.36.030 requires fees to achieve 100% cost recovery unless its Exhibit A lists a lower amount or percentage. The staff report was not clear as to whether the proposed Paramedic Subscription Program Fee achieves 100% cost recovery, or not. If it does not, it would seem those below -cost amounts should be listed in the proposed Exhibit A of the present ordinance. Item 4. Ordinance No. 2023-10: Establishing the "VE" Special Flood Hazard Area Overlay District (PA2018-075) Much as with the preceding item, on June 13, the City Council not only introduced this proposed ordinance, but, without knowing whether the ordinance would ultimately be adopted or not, simultaneously adopted a companion Resolution No. 2023-37 sending the language seen that night to the California Coastal Commission for their consideration. Since it seems helpful for the language to be consistent, it remains unclear to me why staff wishes to rush the resolution to completion without knowing the fate of the ordinance. Again, last minute changes were made changes to the ordinance (and presumably to the resolution?) on June 13, and the possibility that still further changes might be desired remains at least a theoretical possibility. After all, that is the reason for holding a second reading. Indeed, getting what is sent to the Coastal Commission (the desired Title 21 changes) correct seems more important than getting the ordinance (the Title 20 changes) correct. For errors in the Title 20 language can be corrected by the City itself; but if what is sent to the Coastal Commission is not what the City wants, and the Commission certifies it, that unwanted language cannot be corrected without their further permission. Item 9. Professional Services Agreement with American Global Security, Inc. for Security Guard Services In the interest of transparency, it would have seemed helpful to show each bidder's technical and cost scores separately, not just their total score. Power Security Group, for example, must have had a very high cost proposal compared to some of the others since their total score was just 5 points (out of at least a possible 30) over the minimum 70-point technical score needed to be listed in the report. It would also have been helpful to identify what firm (or firms) have provided the service during he "limited -term engagement" that began in November. Despite its high score, it appears American Global Security may have not correctly understood the City's request for optional patrols of off -site restrooms (or the City misstated its request). The RFP, as quoted on staff report page 9-3, clearly states that "Most of these facilities remain unlocked throughout the night." Yet, as its optional service, American Global is offering (on staff June 27, 2023, City Council agenda comments - Jim Mosher Page 5 of 13 report page 9-21) "closing (locking up)" the restrooms at a cost (travel included) of $19.99 per location. Locking the restrooms would seem to create both a frustration for those who might need them, as well as a public sanitation problem. And if American Global were to lock them, who would unlock them, and when? The City's expectation is not clear from the proposed not to exceed cost, which is more than twice the amount necessary for the single 8 p.m. to 4 a.m. Civic Center guard at the stated hourly rates. Do staff and the Council expect two guards, one stationary and one city -roving, and is that what American Guard has bid for? Finally, some may find strange the terminology used at the bottom of page 9-19 to express the requirement that the City allow the person working those hours to take "lunch" in the Community Room. While "lunch" may be a technically correct term for a light meal at any hour, California Labor Law Section 512 avoids confusion by referring to this break requirement as being simply for "a meal period." Item 10. Amendment No. One to the Amended and Restated Ground Lease with Balboa Bay Club Ventures, LLC for the Tidelands Property Located at 1221 West Coast Highway This is one of several items on the current agenda where the public would be at a loss to guess from the agenda alone what is under consideration. In this case, it is to extend by 10 years a lease currently set to expire in 2063. 1 commented on the existing lease when it was last before a previous Council as Item 7 on October 22, 2013. Prior to that action, the lease was set to expire in 2050. If the current Council agrees to the new amendment, the end date will move to 2073. While I appreciate hearing the lessee has invested in the property, something seems wrong with that constantly moving goalpost. The public's needs and desires 50 years from now are hard to guess. I have to assume limiting leases to that term was intended to set a definite end date at which the public could reassess the land's future. Keeping the end date always 50 years off through these extensions means that day of reassessment never arrives, and the fate of the public's land remains forever in the hands of the private investors who can pass their lease on from one to another. Again, that seems wrong to me. So the public really has a chance to make a choice about this land's future in 2063, 1 don't think more extensions should be approved. Otherwise, I'm sure the 2073 date will move as well, and we will forever have view -blocking hotel and apartments at this location. But I do hope someone is looking out for the public's interest in public lands, so I also find it strange the staff report implies the State Lands Commission had to approve the extension from 2050 to 2063, but for some reason it doesn't need to approve this proposed extension from 2063 to 2073. Why don't they? Also, given that on page 10-96 of the staff report the lessee has provided details of the Sales and Transient Occupancy Tax they claim to have paid to the City each year since 2012, it would June 27, 2023, City Council agenda comments - Jim Mosher Page 6 of 13 have been helpful to clarify the statement on page 10-2 that "TOT and sales tax revenue are confidential information and cannot be disclosed by the City." From what does that restriction arise? And is it so severe the City cannot even confirm if the figures reported by the lessee are correct? Item 11. Software License Agreement with Dell for Microsoft Products As the staff report cryptically notes at the bottom on page 11-1, as Item 7 on April 11, 2023, the Council approved a very similar agreement, which appeared to be for all City uses. Why is the Police Department being treated separately? And would there be any pricing advantage in combining the agreements? Item 15. Approval of a Professional Services Agreement with Dudek, Inc. for Consulting Services for the Comprehensive General Plan Update (PA2022-080) Since it is not clear from the staff report, I think the Council should be aware that at its May 3 meeting, the General Plan Update Steering Committee discharged its duty to recommend the Council enter into an agreement with Dudek, the only consultant to respond to the Request for Proposals. But it never officially reviewed or made any recommendation regarding the revised proposal now before the Council. The Advisory Committee, of which I am a member, saw something similar to it on June 12, but the Steering Committee was unable to muster the required quorum of two members on that date.2 As to the revised proposal, I commented on it, both in writing and orally, when it was before the GPAC on June 12, as well as orally on May 3, and in writing on March 22. A major concern is re-engaging Kearns & West for public outreach, the same firm I thought did a singularly ineffective job in 2019. 1 suspect Dudek's choice of Kearns & West may be in part because in response to a question in the RFP pre -bid Q&A ("1.7. In reference to the "Newport, Together" branding efforts, it sounds like the City is looking for a bit of a refresh, but that you would like to stay consistent with that branding. Is that correct?") the City replied ("Yes, the City went through a remarkable outreach and branding effort in 2019 and was sidetracked by the Housing Element. The City would like to use as much of the branding as possible but are open to suggestions for improvement. For example, there were custom icons created to represent each element. Those should be used for the final comprehensive document."). That would have led a canny bidder to seek out the previously -hired firm and add them as a sub -contractor to their proposal. However, many in the public thought the 2019 outreach was remarkably poor, not remarkably good, and the "Newport, Together" website and branding failed to catch on. 2 1 continue to be baffled by why the Council established a General Plan Update structure with a committee of 3 citizen appointees overseeing a committee of 30 citizen appointees. Why is there any expectation the 3 appointees would be any wiser or have any better insights than the 30? The GPUSC is scheduled to be updated on the revised Dudek proposal at 6:00 p.m. on June 26. 1 do not know if they have any plan to provide comments about it to the Council (the recommended action is: "none"). June 27, 2023, City Council agenda comments - Jim Mosher Page 7 of 13 As to the remainder of the revised proposal, as a member of GPAC's Noise Element revision subcommittee, I was especially concerned the City had not asked Dudek to provide any support to the Noise Element revision effort. Instead, it looks like the subcommittee's only support will come from the City's other General Plan Update consultant, Kimley-Horn (see Item 13 from the June 13 Council meeting), and their scope is limited to ensuring the Noise Element will not prevent housing being approved closer to John Wayne Airport than is currently allowed. Such a limited review and predetermined outcome is very disappointing to me. I am also concerned about the emphasis on the end product being primarily an online General Plan. While there are advantages to online plans, it seems to me that as a policy regulatory document, what the Council (and voters) ultimately approves needs to remain a definite, stable, printed (or, at least printable) document (see similar concern about the City's "approved" budget document in the following comment). Item XV. PUBLIC COMMENTS ON NON -AGENDA ITEMS As Item 23 at its June 13 meeting, the City Council fulfilled its City Charter Sections 1103 and 1104 obligations to hold a public hearing on the City Manager's proposed budget for the coming fiscal year and adopt it with possible revisions. As the draft minutes of that hearing reflect, for the first time in recent memory, no revisions of any kind were suggested by either staff or Council, and, sadly but as is common, no one other than me offered any comments. As the buzzer cut me off, I was being, I made a cryptic remark about not knowing what the Council was being asked to adopt or what would be given to the auditor. I would like to explain. The adopted budget serves several functions. Although we now seem to retain an outside auditor to review staff's reporting of the previous year's activities, Charter Section 1104 (written in 1954) requires "A copy [of the Council -adopted budget], certified by the City Clerk, shall be filed with the person retained by the City Council to perform auditing functions for the Councif' — presumably to watch over the coming year's activities and see they comport with it. It also requires that "The budget so certified shall be reproduced and copies made available for the use of the public and of departments, offices and agencies of the City'— again, presumably, to guide the coming year's spending. In 1954, 1 presume it was assumed the budget would be a printed document, prepared with the aid of primitive mechanical adding machines and finished on a typewriter. But accounting has become increasing reliant on electronic computers, and I suspect the City budget is now some kind of database maintained, apparently, somewhere within its "Enterprise Resource Planning System" software (see, most recently, Item 9 from July 26, 2022), of which the Council and public sees only selective snapshots. Exactly what the database contains has never been clear, although the fact that the publicly - disclosed printouts are selective is evident for example in the Board of Library Trustees' seeing 3 City Charter Subsection 708(c) requires the Board of Library Trustees to "Consider the annual budget for library purposes during the process of its preparation and make recommendations with respect thereto June 27, 2023, City Council agenda comments - Jim Mosher Page 8 of 13 only an extremely high-level overview in which all salaries are compressed into a single line and no detail of expenses is provided by facility, whereas the City Council and its Finance Committee members received a Budget Detail book listing the anticipated salaries and benefits by position and detailed expenses for operating each branch and function. The printouts are not always accurate, as well, as illustrated by this excerpt from the 2023-2024 Budget Detail in which "General Expenses" and "Internal SVC Charges" are mixed and "Total"s don't compute: 67- GENERAL EXPENSES 871013-POSTAGE+FREIGHTIEXPRESS NOC 871014 - PUBLICATIONS & DU ES NOC 071DU6-UNFORM EXPENSE 681003 - VEHICLE REPLACE IS= B81004- IT ISF 0DERATING CHARGE 681005- IT ISF =�E'LACEMENT C-iARGE B8101 D - WORKERS' C 0 MP ISF h1ISG 681012 - GENERAL LIABI LIT" IN 3 JRAN C E B81013-UNIRSLR=d CLAIMS CHARGE 681014 -ANNUAL DPEB CHARGE 681015 -OTHER INSURk_YCE ISF PATES a8 - INTERNAL SVC C HARGE Total N - CAPITAL EXPENDITURES 911001 -OFFICE EQUIPMENT 911D04-COMPU7ER EQUIPMENT 53 503 5010 501) 0.00% 1.255 8UU BDU 1.301) 82.50% 37 - - - ' 0.68B 10.6813 29.395 175.07% 41),992 55,95& 55,959 61.221 9.41% 10.398 11),B11 10.1311 10.811 0.00% 12,39E 8,0135 8.005 15,087 68.48% 113,19C 15,11)37 15,11337 17.305 15.113396 21.9d3 - - - 35.338 27.678 27,878 33.048 19.40% - 129 1213 1213 0.0096 173,9B3 177,015 172,015 213,510 24.12% 2343 2.0m 21000 2JDDn 0.DO% 1.50D 1,500 1,900 0.03% 208 Nor is it evident the accounting is always accurate or understandable, as, for example, regarding the identification and correction for internal inter -departmental charges that are not true expenses to the City. Allowing that the budget exists in different forms and at many different levels of detail and accuracy, the problem I was trying to point out is that even if the Council believes it is adopting the Budget Detail book presented to it, that is not evident from the resolution it passes, since the resolution does not include a copy of what is being adopted. And even more seriously, the Budget Detail disappears from the City's records and is replaced by an "Adopted Budget" published later in the year. Throughout most of the City's history, that Adopted Budget was very similar to the Budget Detail, simply incorporating the last-minute Council -approved revisions and adding a letter of transmittal. However, since the 2020-2021 Fiscal Year, the "adopted" Budget Detail posted by City staff has been very different from the proposed Budget Detail seen at the June budget hearing. It might be described as dumbed -down version from which one cannot deduce, for example, how much to the City Council and City Manager." To the best of my knowledge, the Board has never seen the Capital Improvement Part of the budget, and although they made a recommendation to the City Manager about the part they did see, I don't believe any recommendation was ever transmitted to the City Council. If it was, does not appear to be acknowledged in the June 13 Resolution No. 2023-38. June 27, 2023, City Council agenda comments - Jim Mosher Page 9 of 13 was allocated for operating the Mariners Branch Library or OASIS even though these were clearing spelled out in the proposed budget the Council saw. If City staff is following Charter Section 1104, and the stripped -down and rearranged "adopted" Budget later published by the Finance Department (and certified by the City Clerk?) is all the auditor and department heads have for spending guidance, it is pretty thin guidance, and may not be what the Council thinks it approved. Item 19. Appointments to the Water Quality/Coastal Tidelands Committee When the confirmation of the nominees was before the Council as Item 7 on June 13, 1 pointed out that (see page 5 of my previous written comments) that one of the nominees, Tom Houston, has been on the committee much longer than the most recent two consecutive four-year terms noted in the staff report. He has, in fact, been on the committee continuously, without any break, since August 11, 1986. While it can be argued there is value in institutional knowledge, that seems enough. The other holdover, George Robertson, has been on the committee only since 2013, ten years so far. It might be noted that failure to be reappointed does not prevent the nominees from attending the committee's meetings or providing their insights to it. They would simply not be voting members. And, as explained in my comments on Item 20, below, Council Policy A-2's two - consecutive -full -term limit would not prevent them from applying to become voting members, again, when appointments are next made in 2025. Appointments, then or anytime later, would start a new, non-consecutive term, and allow for eight more years of continuous service. Looking a bit more carefully at the remaining nominees, I notice that one of them, Spencer Pirdy, lists his current employer as "The Board Club," which, as I understand it, is a surfboard rental company owned by an existing Water Quality/Coastal Tidelands Committee member, Peter Belden (who Mr. Pirdy, along with another applicant, lists as a reference even though Mr. Belden may be ineligible for that role since he would seem to be "officially connected with the City'). Appointing an employer and his employee to the same body seems especially problematic in this case because during his tenure Mr. Belden has promoted projects that seem designed to benefit his for -profit company — such as rapid testing to shorten the length of beach closures following contamination alerts. Having two committee members advocating for the same company's private interests does not seem right. An additional problem I raised on June 13 is why the staff report says the terms of appointed members run through June 30, when the current enabling Resolution No. 2021-11 clearly states the appointments are to be made in January for terms starting on February 1. In the current staff report, the City Clerk has added a helpful explanation that when the 2021 appointments were made as part of Item 5 on the February 23, 2021, consent calendar, "Council Member Diane Dixon orally revised the resolution to clarify that the end of the terms would expire on June 30 in order to match the end of terms of other committee appointments ending on June 30." The minutes of that meeting confirm "Council Member Dixon requested an June 27, 2023, City Council agenda comments - Jim Mosher Page 10 of 13 amendment to Item 5 so the terms of the Water Quality/Coastal Tidelands Committee members end on June 30, thus confirming staggered terms of 2.5 and 4.5 years," and the resulting unanimous action (along with the rest of the consent calendar) is listed as having been "to approve the Consent Calendar; and noting the amendments to Items 1, 5 and 6." However, despite this intention, the resolution signed by the then -Mayor, attested to by the Deputy City Clerk and certified by the City Clerk on February 24, did not contain the requested revision. Hence when one visits the City's Water Quality/Coastal Tidelands Committee webpage and follows the link to the Committee Authorization, the enabling resolution continues to say appointments are made in January for terms starting on February 1. Even though the latter looks more official, I don't know which takes precedence in a case like this — the certified minutes or the certified resolution. But it would seem the Council owes the public at least a corrected resolution. Item 20. Annual Appointments for Scheduled Board and Commission Vacancies and One Unscheduled Vacancy on the City Arts Commission As the staff report indicates, at the June 13 meeting, the Council voted to consider Laird Hayes for reappointment to the Parks, Beaches and Recreation Commission despite his having just completed nine continuous years of service on PB&R, which means that his reappointment would require the Council to waive the two consecutive full terms limit it has set in Policy A-2. I think that decision sets a poor precedent. Although our City Charter has never provided any guidance as to term limits for board and commission appointments,4 the Council has long had a policy of encouraging fresh faces. From page 4 of the archived minutes, on June 28, 1965, the Council adopted a policy limiting service on "a single Board or Commission" to two full (four-year) terms. The oldest surviving copy of Policy A-4 (the predecessor of A-2), from December 19, 1977, contains a then -existing provision stating that even a single re -appointment after the initial four years should an exception: "To afford the maximum opportunity for citizen service, the City Council, as a general policy, will make appointments with the understanding that they will not be extended beyond one term. Exceptions may be made when, in the judgment of the Council, a reappointment would recognize and extend an unusual contribution by the incumbent." 4 The original Charter encouraged, but did not require, a continual turnover of faces, while maintaining continuity, by setting up a system of staggered four-year appointments (Section 702), and requiring the appointees to reconsider their choice of officers each July (Section 704). In 2012, the passage of Measure EE eliminated all of this except the four-year appointment duration. June 27, 2023, City Council agenda comments - Jim Mosher Page 11 of 13 This sub -policy was eventually dropped, because the Council had begun ignoring it, in a revision presented as Item 14 at the Council's July 12, 1999, meeting. However, the two consecutive full terms limit was retained. During my own watching of the Council since 2009, 1 can recall only one example of the Council waiving that limit. That occurred four years ago, when five members of the City Arts Commission (in apparent violation of the Brown Act) requested the continuation of then -Chair Arlene Greer despite her having just completed two consecutive terms (page 39 of the archived Item 20 materials from the June 11, 2019, meeting), the claim being that because of recent turnover none of the continuing Commissioners would be experienced enough to serve effectively as chair in the coming year. In the present case, I have heard no claim of any extraordinary need for continuity of leadership on PB&R. Indeed, not only is Mr. Hayes is not presently the Chair, but when his farewells were said at the June 6 meeting, none of the Commissioners suggested such a crisis existed. The other incumbent nominee, Kate Malouf, having completed her first four-year term, currently serves as PB&R Vice Chair and would appear well qualified to serve as Chair if the Commission so choose, not to mention three other continuing Commissioners with previous service as Chair. Moreover, unlike with Item 19 (the Water Quality/Coastal Tidelands Committee appointments), I have heard no claim there is a shortage of PB&R applicants. While I greatly appreciate Mr. Hayes' enthusiasm and his eagerness to continue serving on PB&R, I think a reappointment at this time would be a mistake. I suspect the Council's decision in 1999 to allow the reappointment a first -term Commissioner to a second four-year term become the expectation rather than an extraordinary exception was a mistake.5 Absent voluntary "retirements," others who might want to serve on that board or commission have since had to wait twice as long for a seat to become truly "open" (with a termed -out incumbent). That has surely discouraged new applicants. I suspect waiving the two consecutive term limit, at first only for termed -out applicants Council members find exceptionally worthy,' will also gradually devolve into an expectation. So incumbents will be able to serve as long as they choose, and barring "retirements" or misbehavior there will never be any "open" seats. That will surely be even more discouraging to would-be new aspirants. I would additionally point out that the Council can very nearly accomplish its goal of honoring Mr. Hayes, without waving Policy A-2, simply by waiting a year to reappoint him. 5 In my time watching, the only instances I can recall of first -term commissioners applying for reappointment and not being reappointed arose because they had extraordinarily poor attendance records during that first term. In other words, it seems to have now become the norm that anyone able to serve four years without embarrassing the City will automatically be given another four. 6 In the case of Mr. Hayes, I don't recall the June 13 Council discussion identifying any unusual role he had played in his first nine years on PB&R. It seemed to have more to do with outside activities and his general enthusiasm for volunteering. June 27, 2023, City Council agenda comments - Jim Mosher Page 12 of 13 The Council may be under the misimpression that the two -term limit in Policy A-2 is a lifetime one, and once a person has served two consecutive four-year terms, any future appointment to the same board or commission requires a waiver. I do not believe that is the policy's intent. If it were, I don't think it would include the word "consecutive."' Indeed, we have an example in the present nominations of a formerly termed -out board member being nominated, after two years off a board, for an additional non-consecutive appointment to the same board. As I pointed out to the Civil Service Board at their June 5 meeting, although Maiqual Talbot's application for reappointment to that board appears to show he has served continuously for 12 years (see page 20-36) — which would require a Policy A-2 waiver to continue -- he in fact was termed out after serving two consecutive four-year terms from 2011 to 2019, then rejoined the board, being appointed to a new, non-consecutive four-year term on June 25, 2019. If reappointed, Mr. Talbot will be starting a new, consecutive four-year term in July and not term out again until 2027. He could then reapply after as little time off as one year, and repeat the process indefinitely. Similarly, Mr. Hayes' June 16, 2023, PB&R application will remain active next June. A new appointment to PB&R then would not require a waiver of Policy A-2, and would start a new, non- consecutive four-year term on the Commission. I don't think such appointments of former commissioners are particularly wise, for they, too, may discourage new applicants who feel they have no chance against former incumbents. But at least it is allowed by the current policy and requires no waiver. Item 21. Pilot Program to Permit Homeowner's Associations to Install Privately Operated Security Cameras within the Public Rights -of -Way I find this item a bit confusing. While the April 25 Study Session Item SS3 was indeed titled "Security Cameras," I thought it was about automated license plate readers — I term curiously absent from the current staff report or proposed pilot program resolution. Should it, in fact, be encouraging the installation of license plate readers, I think the City should remind any HOA that might wish to avail itself of this opportunity of the requirements of California Civil Code Section 1798.90.51 and related state law provisions. Among other things, it requires the operator to have a written "usage and privacy policy," covering specific topics, which they must make available to the public and post prominently on their website if they have one. The NBPD does this, and I think an HOA operating an automated license plate reader would need to do so, as well. 7 Compare to the similar wording of City Charter Section 402 limiting City Council members to two consecutive four-year terms. That has never been understood as barring termed -out Council members from running again after a period out of office. June 27, 2023, City Council agenda comments - Jim Mosher Page 13 of 13 For this reason, I believe the required signage should include identification of the HOA operating the camera and the website where the public can learn how the information collected will be used. Instead, the proposed signage strongly implies the cameras being operated on behalf of the Police Department, which does not seem to be the case, since the Pilot Program says the information collected is "for the private use of the HOA." Especially in view of that, it seems strange that a permit for free use of City property and public right of way would carry with it no obligation to provide the City with anything other than "statistical information" on request. What would that "statistical information" consist of? And what use would it be to the City? It also seems strange that according to the bottom of staff report page 21-2, the Police Department does not expect to request even that statistical information from the HOAs until the one-year pilot program is complete. This seems problematic since the HOA may not choose to store the information for a year, and, if they do, will the NBPD then be attempting to assess whether the information would have been useful if it had it sooner?