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HomeMy WebLinkAbout00 - Written CommentsOctober 27, 2015, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) General note: the present Consent Calendar lacks the “Planning Commission Agenda” reports which usually appear as a “receive and file” item under “MISCELLANEOUS.” This is presumably because the Planning Commission hasn’t met since the Council last met; however, it once again begs the question, which has been occasionally asked by former Council members, of why the Council receives reports of Planning Commission activities but not of the activities of the City’s many other Boards, Commissions and Committees? Item 1. Minutes of the October 13, 2015 Study Session and Regular Meeting The page numbers below refer to Volume 62 of the draft minutes. The passages in italics are from the draft with suggested changes shown in strikeout underline format. Page 463: Item SS2: Should it be mentioned that the Mayor announced Larry Tucker was absent due to a family emergency? Page 463: Item SS3, paragraph 1, line 4: “… the ideal path alongside the STREL, MUSELZ MUSEL turning into FINNZ, STREL turning into PIGGN, …” [one of the slides may have referred to a “MUSEL 7” but I have never heard of a “MUSELZ”] Page 464: paragraph 1: “Jim Mosher commented on recommendations for more no changes to Council Policy A-17 … ” Page 464: paragraph 4 from end, last sentence: “City Attorney Harp agreed that would be a fair expectation adding that they may require a separate Environmental Impact Statement or a supplemental Environmental Assessment.” Page 464: line 2 from end: “… City Manager Kiff stated that standing staying at the table with the FAA and fixing MAGVAR are key points and are hand-in-hand with the County's points.” Page 466: Item III, paragraph 1: “He addressed Item C and the court's decision standing by regarding the City's determination. He questioned whether the mitigation litigation has finished.” Page 468: Item XII, last sentence: “Mayor Selich … asked that the matter be brought before Council for consideration of developing a golf cart transportation plan.” [one might have expected a vote on this to have been scheduled under Item XIII on the present agenda, but it is not] Page 470: Item 8, paragraph 2: “Council Member Curry and Council Member Muldoon recused themselves from this item due to financial reasons.” [since the recusals required by the Political Reform Act are always, at root, due to financial conflicts, this does not seem to me to be a sufficient explanation of what the Received After Agenda Printed October 27, 2015 Written Comments on Consent Calendar October 27, 2015, Council Consent Calendar Comments - Jim Mosher Page 2 of 7 specific “financial reasons” in this case were. I seem to recall Council Member Curry saying he had stock in AT&T, although if he owns fewer than 3% of the public shares I thought that was not a problem? In the interest of transparency I would hope the minutes would memorialize what was actually said.] Page 472: last sentence (re: Woody’s Wharf): “Community Development Director Brandt added that staff consistently provides the last reviewing body any amendments to CUPs.” [Staff’s logic remains elusive: the public has been told the Court of Appeals ruled the Council’s previous review of the Woody’s Wharf CUP to have been illegal due to a failure to follow the then-existent appeal filing procedure. As a result, the last body to legally review (and issue) the CUP was the Planning Commission. It is very difficult to see how an illegally convened appeal t the Council can be legally re-opened in defiance of the clear directives in the Municipal Code and the CUP itself.] Page 474: Item 17, paragraph 2: “It was the consensus of the City Council to proceed with the proposed Budget Preparation Framework as outlined in the staff report.” [It is doubtful this report is adequate under the Brown Act as amended by Stats. 2013, Ch. 257, Sec. 1. (effective January 1, 2014), which added: “Sec. 54953(c)(2) The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.” Under the existing definition in Sec. 54952.6, the reaching a “consensus” on a proposal would clearly seem to be an “action taken” by the Council. Although there may be some ambiguity in some cases about what is required to comply with this new legislation, this was agendized as Council input on a proposal and resulted, according to the minutes, in direction given, which is effectively an approval of the proposal. But since “consensus” is an ambiguous word that can mean either unanimous or majority support, it seems especially important to record if there was any dissent or abstention, and by whom. If the Mayor or Clerk asked if there was any objection to the direction given. and heard none, that could easily have been stated in the minutes.] Page 475: paragraph 1, sentence 2: “He added that this would result in the accumulation of a huge tax liability when the house sells, which would drive down the value of the home, to compensate for the purchaser having to make a huge tax payment.” Page 475: paragraph 4, sentence 2: “She spoke in support of staff returning with the pros and cons of the proposal and bring bringing back an analysis of how this could be accomplished.” October 27, 2015, Council Consent Calendar Comments - Jim Mosher Page 3 of 7 Item 4. Adopt Resolutions for Inclusion of Properties within the City’s Jurisdiction in the California Home Finance Authority PACE Programs and Associate Membership Agreement in California Home Finance Authority As indicated on page 3 of the staff report, past City Councils have authorized participation in three other PACE programs. Does the City have any knowledge of how much participation by property owners that has actually resulted in and what benefits it has provided the City? Also, is there any conceivable downside to the City, such as legal liability arising from its implied endorsement of the value and soundness of the PACE programs? Item 5. City Council Policy F-9 (City Vehicle Equipment and Guidelines) This appears to be a request to approve the identical policy the Council had some problems with when it was described to them at the October 13, 2015, Study Session. In particular institutes what looks like a mandatory system of retirement of fire vehicles when they reach a certain age or mileage whereas the current policy calls only for the initiation of annual inspections at that point. Since the existing policy does not seem to make replacement mandatory based to the existing “milestones,” I’m not sure I understand how $1,039,000 a year is saved by adopting the proposed new language and schedule before the Finance Committee reviews them and makes further recommendations. On the contrary, the primary effect would seem to be to set aside less money for replacement given the longer, and presumably more realistic, expected lives. The following are specific comments about the clean version provided as Exhibit 1 to the proposed resolution: 1. Typo in PURPOSE: “To establish a policy to ensure that the full service life of each City vehicle or item of equipment is utilized to its fullest potential, provide for a funding timelines and implement uniform guidelines among all departments.” [note: the guidelines are not actually uniform, they are different for the Fire Department] 2. In POLICY : the column headings “Vehicle/Equipment” and “Schedule for Replacement”, which are not in the redline, have crept into to the clean copy, increasing the impression that equipment must be replaced at a certain point, regardless of condition. My impression was the Council wanted to regard these more as a schedule to guide funding rather than actual replacement. 3. Typo in last paragraph on staff report page 5-8: “… They will remain in a frontline status until the expected useful service life is over. …” [or is “useful life” intended to mean something different from the previously and later-used term “service life”?] 4. First paragraph on staff report page 5-9: “All non-emergency vehicles shall be replaced based on, but not limited to, the following factors: …” [Where are the factors for October 27, 2015, Council Consent Calendar Comments - Jim Mosher Page 4 of 7 emergency vehicles (other than fire engines and trucks) specified?? How do they differ?] 5. Typo in last paragraph: “Should the expected actual life of the equipment be less than expected, …” 6. Typo in amendment history: “Amended – October 28 27, 2015” Item 6. Marina Park Parking - Establish Marina Park Parking Lots Hours, Approve the Marina Park Daily Parking Permit, and Exempt Master and Annual Permit Parking from Marina Park Parking Lots 1. The advance advertising for Marina Park indicates it will contain a Community Center. I suspect this is the first community center in Newport Beach where those attending programs will have to pay to park, which seems like an unfortunate trend. Especially in view of the likelihood that community meetings will be held there, disallowing the use of City parking permits seems particularly problematic and discouraging to the public. 2. The proposed Resolution 2015-86 implies (on staff report page 6-8) that the proposed hours of operation are an expansion of those required by Coastal Development Permit No. 5-10-229. Does the Coastal Development Permit for Marina Park give the City the authority to set the parking rates? Or does that require further Coastal Commission approval? The staff report does not make that clear. Item 8. Approval of Amendment No. 2 to the Professional Services Agreement with AECOM for Planning Services Associated with the Balboa Island Seawall Project The staff report says (bottom of page 8-1): “Additional funding of $22,700 is needed to compensate AECOM for its previous efforts to date and to close out this planning contract.” To the extent this is new payment for work already performed, the justification for that payment under the existing contract should be explained (and if the authorization already exists, it is difficult to see why an amendment is needed). Staff is once again reminded of Article XI, Section 10 of the California Constitution: “A local government body may not grant extra compensation or extra allowance to a public officer, public employee, or contractor after service has been rendered or a contract has been entered into and performed in whole or in part, or pay a claim under an agreement made without authority of law.” [emphasis added] October 27, 2015, Council Consent Calendar Comments - Jim Mosher Page 5 of 7 Item 9. Semeniuk Slough Dredging Project - Amendment No. 1 to the Professional Services Agreement with Noble Consultants, Inc. It continues to bother me that according to the City’s mapping application the slough is divided into parcels which are not owned by the City . If the City doesn’t own it, I’m not sure I understand why City taxpayers should be bearing the cost of dredging it, as seems to be the case. Item 11. Confirm Nominations to the Visit Newport Beach, Inc. Executive Committee Despite staff’s efforts to articulate the City’s appointments system with Council Policy A-2, the process remains highly flawed. At the very least, the full Council (and the public) should be able to easily see the full list of names from which the nominees were drawn, since they may not agree with the choices presented in the staff report and may wish to argue for one of the other applicants being included among the nominees. In the present case, to the best of my knowledge, there was only one other application to serve on the VNB Executive Committee, and that application happened to be mine. I fail to see how the City’s interest is in any way served by suppressing that information and allowing three Council members to control the nomination process for the other four. Compounding the already flawed process, City staff appears to treat the Council’s “Ad-Hoc Appointments Committee” as a standing committee that can be called upon whenever it feels a screening of applications is needed, even though its membership is not listed on the Clerk’s roster of City committees, and even though the Brown Act requires all standing committees to meet, deliberate and make decisions only at noticed public meetings – something the present Appointments Committee definitely does not do. According to the public record, the last time an “Ad-Hoc Appointments Committee” was formally appointed by the Mayor per Policy A-2 (and ratified by the full Council) was as Item 10 at the Council’s April 28, 2015, meeting. The stated purpose was to screen the citizen’s applications for the vacancies on the City’s Boards, Commissions and Committees that are normally filled in June. After much delay, that task was completed with the appointment of Jill Johnson-Tucker and Janet Ray to the Board of Library Trustees as Item 21 on the Council’s September 8, 2015, agenda. Per the last paragraph on page 4 of Policy A-2, the Appointments Committee automatically dissolved at that point. I do not recall the need to create a new “Ad-Hoc Appointments Committee,” or even that there were any positions the Council needed to fill (other than the one on the Finance Committee), having been mentioned at any subsequent City Council meeting. As a result, it is unclear to me what authority the City Clerk has, under the present circumstances, to limit the visibility of applications to those pre-selected by an unappointed October 27, 2015, Council Consent Calendar Comments - Jim Mosher Page 6 of 7 group of three Council members using unknown criteria. Instead, Policy A-2 explicitly says (last paragraph on page 3) that if the Mayor fails to appoint a committee (presumably at an open and noticed public meeting), all the qualified applications are to be submitted to the Council for their consideration at an open and noticed public meeting. The above said, if the Council feels a pre-screening of the applications is necessary, I think it would be wise for it to regard its “Appointments Committee” as a standing committee subject to all the Brown Act requirements for open and public deliberation. It seems entirely fitting and proper that the applicants should be subjected to public scrutiny and that the public should know how the nominees were selected. In addition I might point out that in this particular case, VNB (as distinct from the TBID Board) is the designated “owners’ association” for the City’s Tourism Business Improvement District, and as such it too is required (by Section 36612 of the state Streets and Highways Code) to comply with the Brown Act when taking any actions impacting the TBID members – which encompasses nearly everything VNB does. Although the Boards, Commissions and Committees binder in the City Council lobby has a tab for the VNB Executive Committee, I have yet to see an agenda “posted” in it. Finally, regarding the substance of the recommended nominees, I find it doubtful that Mr. O’Neil is as free of potential conflicts as his application suggests. I have the impression he still participates in an active legal practice and matters involving his clients (from which I assume he would have to recuse himself) might come before the VNB Executive Committee. I am also unaware of any substantive feedback he has given to the Council regarding the workings of VNB during his four years representing the City in this position. Item 12. Confirm Nominations to Fill the Unscheduled Vacancy on the City Arts Commission Although obscurely noticed on the City website and in one issue of the classified section of the Daily Pilot, it seems unfortunate that this vacancy, like that on the Visit Newport Beach Executive Committee, was never mentioned at a City Council meeting, meaning the possibility of an unexpected appointment was probably spread primarily by word of mouth to a certain pre- conceived “in” group. That said, I suspect “the 13 applications received” that are referred to in the staff report were mostly not in response to the new vacancy announcement, but rather holdovers of applications still on file from the regular and expected vacancies that occur in July of each year. In view of that, it is disappointing that the many people who have a record of past interest in appointment to the Arts Commission seem to have been bypassed in favor of two last-minute applicants, neither of whom, to my knowledge, has ever attended an Arts Commission meeting and one of whom has lived in the City for a single year. It might also be noted that an applicant who received half the Council’s votes the last time an unexpected vacancy was filled on the Arts Commission (as Item 15 on October 14, 2014), seems to have been completely cut out of the process this time. I don’t know if that person’s October 27, 2015, Council Consent Calendar Comments - Jim Mosher Page 7 of 7 application had by now become “stale,” or if he was even aware a new opening had arisen. Despite the earlier Council support for him, I notice he was not among the nominees offered up by the Appointments Committee for the regularly expected “vacancy” on the Arts Commission filled by Item 21 on July 14, 2015, agenda -- again, I think, underscoring the flawed appointments system. Item 13. Cultural Arts Grants, 2015/16 1. The staff report refers to the $40,000 that is provided annually to support the arts pursuant to City Council Policy I-10. It might be noted that the policy (in paragraph 3) actually designates $55,000 for the purposes stated in the staff report. The reason for the discrepancy in dollar amount remains unclear to me. 2. Although her appointment was approved by a majority of the Council (as Item 15 on October 14, 2014, agenda), I continue to find it peculiar to have the Mayor’s spouse serving on the Arts Commission. a. In view of that peculiarity, and although Commissioner Selich abstained from the vote on that particular item, I think the staff report could have made it more clear that the new recommendation to send $1,300 to KOCI radio is specifically (see Attachment E to October 8, 2015, City Arts Commission agenda Item III.B.1) to support the “Sunday Brunch with Tom Johnson & Lynn Selich” show, for which Ms. Selich is listed as “executive producer and co-host.” b. While this may be a worthy cause and a good use of the City’s arts dollars, and while I have no idea if Ms. Selich derives any direct income from this venture, I think at least some members of the public may see a certain element here of the use of public funds for self-promotion. c. If Ms. Selich did derive any direct or indirect financial benefit from the producing and hosting the radio show the City’s taxpayers are being asked to support, then I believe a recommendation to support it from the Arts Commission would have been illegal under City Charter Section 608, before that section was weakened by Measure EE in 2012. It might still be improper under Cal. Gov. Code Section 1090 or the Conflict of Interest provisions of City Council Policy A-13.