HomeMy WebLinkAbout2013Oct15_FinanceCommittee_AgendaItem_Comments_JimMosherOctober 15, 2013, Finance Committee Agenda Comments
These comments on items on the Newport Beach City Council Finance Committee agenda are submitted
by: Jim Mosher ( jimmosher@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229)
Item 4: Approval of Minutes of July 22, 2013, Meeting
The following three very minor corrections are suggested for the Committee’s consideration:
1. Page 3, under item B, paragraph 2, last sentence: “He commented on the main risk
portfolio duration, interest rate changes, credit exposure, and uncertain cash flows.”
2. Page 4, paragraph 3: “The third recommendation is to establish another reference point
that is more reflective of the universe of investable securities ...”
3. Page 4, paragraph 6: “Council Member Henn, with Council Member Petros’ concurrence
stated support for the three recommendations.”
Although not incorrect, I feel that under Item 6 on page 4 (“Announcements or Matters Which Members
Would Like Placed on a Future Agenda”), the discussion regarding setting a date for review of the “trash
RFP analysis” was considerably more precise than the draft minutes might suggest. According to my
notes, City Manager Dave Kiff said that before taking them to the full Council, he would like to have the
Committee review the trash proposals in August or early September. After consulting calendars, a time
and date of 4:00 pm on August 15, 2013, was set, subject to Dave checking that Mark Harmon would be
"ready" by then. It was also noted that after August 15th, the next meeting of the Finance Committee
would be on September 23, 2013.
[Further note regarding events after the July 22 meeting: the August 15 meeting was subsequently
changed to August 29 at 3:00 pm, per an email from Tammie Frederickson on July 26. The August 29
meeting was cancelled, but the September 23 date confirmed, in an email received on August 21, 2013.
The September 23 meeting was never held.]
Item 5.A.: Response to Ralph M. Brown Act Allegations
This agenda item consists of a draft letter, apparently to be signed by the Chair if a majority of
the Committee agrees, in response to a “cease and desist” letter received by the City on
September 17, 2013. I find it curious that staff has chosen not to share the September 17th
letter with the public and the Committee members as part of the agenda packet. I am attaching
what I assume is it as “Exhibit A.”
As my September 17 letter says, I submitted it pursuant to a new mechanism added to the
Brown Act in January of this year (found in California Government Code Section 54960.2). As I
thought the letter made very clear, it raises a significant concern about members of three
member committees subject to the Brown Act discussing matters within their committee’s
subject matter jurisdiction outside of publicly noticed meetings, and asks the Finance Committee
to refrain from that practice in the future. Should the Committee agree that refraining from
unnoticed discussion would be good public policy, the new mechanism provides a face-saving
way of committing to that policy without any admission that past practice might have been
incompatible with the Brown Act. At the same time, if the public were to notice the Committee
October 15, 2013, Finance Committee agenda comments - Jim Mosher Page 2 of 2
reverting to the practice of holding unnoticed discussions between members, it reserves to the
public the right to have the question of whether that practice violates the Brown Act settled by a
court.
I am profoundly disappointed by the response letter proffered in the agenda packet. Not only
does it not acknowledge the challenged pass practice of unnoticed discussions between
Committee members, but it implies that any concern about such non-public discussions as one
assumes must have preceded the Daily Pilot commentary is entirely frivolous, and it commits
unconditionally to nothing.
Instead, it cites the letter published in the Daily Pilot as the challenged “action” (even though the
letter is only the evidence or symptom of the challenged action), and, as best I can tell, “agrees”
only to not publishing it again. Should the Committee issue the letter as drafted, I, for one, am
doubtful it is a promise to refrain from future unnoticed discussions between members. As
such, the draft “unconditional commitment” meets neither the letter nor the spirit of the new
mechanism.
I had hoped that the new mechanism would provide a basis for a candid public discussion of
whether refraining from unnoticed discussions is good public policy, or not. I am open to the
idea that there might be policy arguments favoring unnoticed discussions, or that I might be
misreading what I read (for the reasons explained in detail in “Exhibit A”) as the existing
prohibition against them in the Brown Act. And I remain hopeful, although I have difficulty
seeing how the proposed response advances the conversation, or in any way protects the City.
Should a conversation take place, it might be helpful to note that although I found the Daily Pilot
commentary particularly troubling because it dealt with matters that had been explicitly and
publicly announced to be discussed at a public meeting of the Finance Committee (see notes to
Item 4, above), it is irrelevant to me whether the matter was planned for a Finance Committee
agenda or if the Committee ultimately took action on it. In my view, the Brown Act wisely
prohibits any non-public discussion among members of a three-member committee on any topic
that could come before the committee. Without that restriction, the distinction between
agendized meetings and private conversations becomes hopelessly blurred. I fully understand
that some Council members may feel uncomfortably constrained by this restriction, but my
answer is that those who want to discuss a subject “off camera” should not volunteer to serve
on a three-member committee dealing with that subject matter. The hardship is no greater than
that imposed on the members of a two-member standing committee of a five-member council.
I fully appreciate that the enforcement of any resulting commitment would be largely on the
honor system, since the public rarely knows what committee members are doing in private, but I
do not believe that should not restrain the committee from wanting to commit to the principle
that the public’s business should be done exclusively in public.
I look forward to an unconditional commitment to refraining from any unnoticed discussions
between members of a three member body subject to the Brown Act.
2210 Private Road
Newport Beach, CA. 92660
September 17, 2013
City Clerk
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA. 92660
Madam Clerk,
This letter is being reluctantly submitted pursuant to California Government Code Section
54960.2(a)(1) to request the City of Newport Beach to take the steps necessary to cease and
desist from the Brown Act violation described below.
On December 12, 2000, the City Council created, by Resolution 2000-103, a three-member
standing Finance Committee, whose duties and membership, currently consisting of three
City Council members, were most recently revised by Resolution No. 2007-21 (April 10,
2007) and Resolution No. 2013-32 (April 9, 2013).
As Item E on its March 25, 2013 agenda, and presumably within the recognized scope of its
subject matter jurisdiction, the Finance Committee met for “Review of the Request for
Proposal (RFP) Outline for the Residential Solid Waste Program.” At its July 22 meeting the
City Manager further asked the Committee to convene a special meeting on August 29 to
review the results of that RFP prior to their presentation to the full Council. The requested
Finance Committee meeting was never held. Instead, the first noticed public meeting at
which the RFP results were discussed was the full City Council meeting of September 10,
2013, where the discussion was Regular agenda Item 20.
However, prior to the September 10 meeting, and without benefit of the planned August 29
public meeting, two of the three Finance Committee members, Mayor Keith Curry and
Councilmember Michael Henn, who constitute a majority of the Committee, published a
lengthy commentary in the City’s official newspaper, the Daily Pilot. Their commentary,
describing in detail their financial conclusions regarding the trash out-sourcing proposals and
the savings that could be realized, appeared on-line on September 6, and in print on
Jim Mosher to City Clerk : Finance Committee Brown Act violation Page 2 of 2
September 8, 2013, where it was titled “Outsourcing trash pickup would free money city
needs” (page A8).
It is evident that in composing this commentary, and arriving at their joint conclusions, these
two gentlemen must have discussed the RFP results, either in person, telephonically or
electronically. That is a clear violation of Government Code Section 54952.2 (b)(1), which
prohibits a majority of a body subject to the Brown Act (such as a standing committee) from
discussing, outside of a noticed public meeting, business that could properly come before the
body.
It might be noted that Section 54952.2(c)(1) exempts individual contacts between members
of the body, however such contacts are exempted only to the extent they would not violate
Section 54952.2 (b). In the present case, individual contacts between any two members of
the Finance Committee regarding matters within the subject matter jurisdiction of the
Finance Committee clearly violate Section 54952.2 (b)(1) because they constitute discussion
among a majority of the membership of the three member committee. Therefore, they are
not exempted.
I trust the City will recognize this problem and take the steps prescribed in Government Code
Section 54960.2(c)(1) to commit to preventing future unnoticed discussion between any
members of a three member committee subject to the Brown Act noticing requirements
regarding matters within the jurisdiction of such committee.
Yours sincerely,
James M. Mosher
jimmosher@yahoo.com
(949) 548-629