HomeMy WebLinkAbout11/Closed Session - CorrespondenceReceived After Agenda Printed
April 24, 2018
Closed Session
April 24, 2018, Council Agenda Item IV.A Comments
The following comments on an item on the Newport Beach City Council agenda are submitted by:
Jim Mosher ( jimmosher(c)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229)
Item IV.A. PUBLIC EMPLOYEE APPOINTMENT
1. There is a Serious Problem with this Item
While I believe the appointment of a city manager is one of the most important decisions a City
Council ever makes, and while I strongly encourage extensive discussion of it, I object equally
strongly to this item as noticed:
IV. CLOSED SESSION
A. PUBLIC EMPLOYEE APPOINTMENT
(Government Code Section 54957(b)(1)): 1 matter
Title: Initiation of Recruitment Process for New City Manager
"Initiation of Recruitment Process for New City Manager" is neither a job title nor, to the best
of my knowledge, a topic that the Brown Act allows to be discussed in private. Yet from the
agenda it appears that is precisely what the Council is being invited to do -- and for more than two
hours (and possibly with unknown parties present?), as supposedly allowed by Government Code
Section 54957(b)(1).
2. Explanation of the Problem
Among other things, the recruitment process was already initiated, in public, by Item 12 ("City
Manager Employment Agreement Amendment and Commencement of Process for Recruitment
of New City Manager") on the April 10, 2018, agenda, and until actual candidates have been
identified for evaluation, I believe all discussion of the recruitment process should be, and I think
is legally required to take place in public -- as, for example, in Item 11 ("Selection of an Executive
Search Firm to Assist in the Recruitment of a New City Manager") on the present agenda.
Specifically, Government Code Section 54957(b)(1) reads as follows:
(b) (1) Subject to paragraph (2) [expanding on the handling of the "complaints or charges"
mentioned later in the sentence], this chapter shall not be construed to prevent the legislative
body of a local agency from holding closed sessions during a regular or special meeting to
consider the appointment, employment, evaluation of performance, discipline, or dismissal
of a public employee or to hear complaints or charges brought against the employee by
another person or employee unless the employee requests a public session.
It is one of the very limited exceptions to the general rule that of city councils "It is the intent of the
law that their actions be taken openly and that their deliberations be conducted openly' and "The
people, in delegating authority, do not give their public servants the right to decide what is good
for the people to know and what is not good for them to know" (Gov. Code Sec. 54950).
It has been long recognized in both case law and commentary that the Brown Act's
employment/appointment exception applies only to specific, identifiable persons.
April 24, 2018, City Council Agenda Item 11 Comments - Jim Mosher Page 2 of 3
As explained in the League of California Cities' Open & Public V: A Guide To The Ralph M Brown
Act (2016, page 46): "The purpose of this exception — commonly referred to as the "personnel
exception"— is to avoid undue publicity or embarrassment for an employee or applicant
for employment and to allow full and candid discussion by the legislative body; thus, it is
restricted to discussing individuals, not general personnel policies" [San Diego Union v. City
Council (1983) 146 Cal.App.3d 947, 955]
In the present case, where the proposed discussion is about "process" not people, there is no
identifiable individual being considered for appointment (either employee or applicant), and hence
no one who needs to be protected from embarrassment or from public exposure of candid
conversation about him or her.
While I appreciate the Council members may feel they can speak more freely in private about a
hot -button issue like the eventual selection of a new City Manager, as explained in the California
Attorney General's 2003 Brown Act pamphlet (Sec. VI. 1.A): "The fact that material may be
sensitive, embarrassing or controversial does not justify application of a closed session
unless it is authorized by some specific exception. (Bowen v. Santa Clara Unified School
District (1981) 121 Cal.App.3d 231, 235.) Rather, in many circumstances these
characteristics may be further evidence of the need for public scrutiny and participation in
discussing such matters."
The case cited (Rowen), incidentally, disposed of the question of whether the "personnel
exception" could be used to allow private discussion of the qualifications of outside contractors,
much like the recruiters being considered in the present agenda Item 11. It cannot, because
most contractors are not being hired to act as government employees.
A later case, Duval v. Board of Trustees (2001) 93 Cal.AppAth 902, considered whether the
"employee evaluation" exception could be used to formulate the questions to be explored during a
future evaluation. It held that it could, but, again, only because the questions were targeted at the
evaluation of a specific current employee, the privacy of whose personnel record could be
compromised by revelation of the questions being asked about him in closed session.
And while the Duval court reached even that limited conclusion only after opining that the
plaintiffs in their case interpreted the Brown Act personnel exceptions too narrowly, it should be
noted that the idea the Brown Act exceptions are to be construed narrowly has since been
enshrined in the California Constitution with the overwhelming passage of Proposition 42 in 2014,
which added Section 3(b)(2) to Article 1 (the California Declaration of Rights): "A statute ... shall
be broadly construed if it furthers the people's right of access, and narrowly construed if it
limits the right of access."
Hence any expansion of the Brown Act's "personnel exception" beyond the present
understanding of it' as applying only to discussion related to specific individuals is highly
disfavored.
' See, for example, Atkinson, Andelson, Loya, Ruud & Romo's Open Public Meeting
Requirements Under The Brown Act And California Education Code (2016): "The closed session
discussion must relate to a particular individual
April 24, 2018, City Council Agenda Item 11 Comments - Jim Mosher Page 3 of 3
Nonetheless, as to the employment/appointment exception, Melissa H. Brown and Grant Herndon
do observe in their Brown Act Handbook for Personnel Administrators (Schools Legal Service,
August 2017, page F-10): "A reasonable basis can be asserted to support discussion of
interview questions in closed session, especially where they are maintained as a confidential
part of the interview process and where the release of the information could give an unfair
advantage to a candidate."
But the Council is presumably months away from formulating interview questions, so in the
present case it is completely unclear what reason is being offered to justify the request for a
closed session.
3. The Problem Restated
As noted in Part 1 and substantiated in Part 2, "Initiation of Recruitment Process for New City
Manager" is a topic of great public interest, and one a city council is most welcome to discuss,
but not in closed session. And certainly not under the specific open meetings exception cited,
which applies only to the evaluation of candidates.
Since the public has to assume the Council has no specific candidates to discuss in closed
session at this time, and even if it did, since the agenda notice clearly says the Council is
planning to do something different from evaluating candidates (the "initiation of a recruitment
process" will presumably lead to the production of candidates to evaluate at some time off in the
future, but not now), it appears the Council is preparing to hold a closed session without statutory
authorization, and hence to violate the Brown Act.
4. The Ask
In my view, the City Council, or the staff person who prepared the agenda, owes the public of
Newport Beach a clearer explanation of what, exactly, the City Council proposes to do in closed
session on April 24, how that differs from April 10's open session Item 12 and this meeting's open
session Item 11, and what provision of the Brown Act allows that to be done behind closed doors
(ideally with some case law supporting their interpretation if a closed session justification is
claimed).
Since the present agenda announces a closed session topic that is not a valid topic for closed
session, and since it is too late to amend the agenda, the clearer explanation will likely require re -
noticing the item -- hopefully for discussion in open session at a later meeting.
Received After Agenda Printed
April 24, 2018
Closed Session
From: Susan Skinner <susanskinner949@gmail.com>
Sent: Sunday, April 22, 2018 5:39 PM
To: Brown, Leilani
Subject: A letter for the April 24 city council meeting (PLEASE INCLUDE IT IN THE PACKET THIS
TIME)
Dear City Council:
I object to having you initiate the search for a new city manager using the City Clerk
instead of the Human Resources department.
Here are my thoughts:
At the April 10 City Council meeting, we learned that City Councilmen O'Neill and Duffield
met with our well-respected city manager Dave Kiff and effectively forced his retirement. It
is unclear if Councilmen Muldoon and Peotter were directly involved, but it is widely
believed that they were.
Dave's new contract states that if an interim city manager is named, Dave will immediately
be placed on administrative leave until August 31, the date of his retirement. Well-placed
sources now say that an interim city manager will be named imminently. If these sources
are correct, our new city manager will be... Assistant City Attorney Michael Torres. Mr.
Torres has absolutely NO experience as a city manager and his current position has not
even given him the opportunity to develop significant administrative or leadership skills.
It is hugely ironic that those councilmen who campaigned on fiscal responsibility are
willing to throw away money on severance pay and administrative leave pay in order to
ensure that Dave Kiff is no longer in charge. Why?
Why the 'Gang of 4' is so hot to remove Mr. Kiff? What do they want so badly that Dave
Kiff will impede? What are they planning to accomplish once he is gone? Mr. Peotter is
facing an uphill climb to hold on to his seat and the 'Gang of 4' likely know that once he is
gone, they may not have the votes to make changes to the city that they want to
make. What ARE those changes? Firing staff that they disagree with? Dave won't be
able to protect city staff any longer. Making it easier for their campaign consultant Dave
Ellis to influence planning decisions? Mr. Ellis was a lobbyist for the Museum House, a
project widely rejected by the residents that was approved by his clients on the council
despite an enormous outcry.
It was also revealed at the council meeting that Mr. Peotter had pushed multiple times for
Mark Denny to get a position as an assistant city manager but was unsuccessful. It is
believed that he was trying position Mr. Denny to take over the city manager position.
So, let's learn a bit more about Mr. Denny. He worked for the County of Orange for a
number of years after his conviction for voter fraud in the 1990s. While at the county, his
stewardship was questioned because of a million dollars spent on no bid contracts
apparently awarded to friends of friends and without appropriate paperwork or
oversight. In 2017, the city of Dana Point created a new position as head of the Parks and
Recreation Department at a Tuesday meeting and by Friday, Mr. Denny had been offered
the position and accepted it.
Shortly after, the city manager of Dana Point announced his retirement and a professional
recruiter was brought in. Three excellent candidates applied for the job but it went to Mr.
Denny, a man with NO experience as a city manager. Mr. Denny never even applied for
the job but was given it regardless. He now has exactly 10 months of experience as city
manager and has been politely described as "learning on the job" by a city official in Dana
Point. What Mr. Denny does have is a virtual web of political connections to the 'Gang of
4' on our council. The word on the street is that this is the man that Mr. O'Neill, Duffield,
Peotter and Muldoon wish to replace Mr. Kiff.
I'm fearful for our city and for the ability of our city staff to act in an ethical and
independent way. If unethical forces are working to have key staff positions filled with
people who share their philosophy, what does that mean for the future?
At the city council meeting on Tuesday, April 24, the council will decide the process to
replace Mr. Kiff. Although it is beyond obvious that the Human Resources department
should be heading up this process, the 'Gang of 4' adamantly refused to allow that to
occur and insisted that City Clerk Leilani Brown be put in charge of this process. You
might ask yourself why? Might it be because Ms. Brown is an at will employee who
serves at the pleasure of the 'Gang of 4'? Might it be precisely since she has NO
experience in picking a city manager and might be manipulated to do what they want? Is
that why Mr. Peotter said that he absolutely refused to have HR manage this process?
We cannot save Dave Kiff, but we are now looking at a bigger picture: saving the city from
the 'Gang of 4'. For those reading this, please disseminate this information widely. The
more people know about what is going on, the harder it is for the unethical things that are
happening to our city to continue. All sides agree: The 'Gang of 4' must be stopped.
I hereby object to the City Clerk's office being the primary resource to find a new city
manager rather than the Human Resources department.
Susan Skinner
susanskinner949(a-)-gmail.com
z
Received After Agenda Printed
April 24, 2018
Closed Session
From: Susan Skinner <seskinner@me.com>
Sent: Monday, April 23, 2018 1:06 PM
To: Brown, Leilani
Subject: Fwd: Written comment objecting to Item IV.A (CC agenda, 4/24/2018)
Please also include this email train in the correspondence regarding council agenda item IV.A, the discussion of
a new city manager.
Please confirm that you have received this.
Susan Skinner
Sent from my iPhone
Begin forwarded message:
From: Susan Skinner <seskinnergme.com>
Date: April 23, 2018 at 7:01:00 AM PDT
To: "Harp, Aaron" <aharp@newportbeachca.gov>
Cc: Jim Mosher <jimmoshergyahoo.com>, Hillary Davis <hillary.davisgIatimes.com>, Sara
Hall <saragnewportbeachindy.com>, Norberto Santana <nsantana e voiceofoc.org>, Joy
Brenner <joybrenner@me.com>, Tim Stoaks <timstoaksgsbcglobal.net>, Phil Greer
<surflaw&aol.com>, Thomas Johnson <to ]johnson(a�me.com>, "Tom@StuNewsNewport.com"
<TomgStuNewsNewport com>, John Canalis <John. Canalis(21atimes.com>, Christopher Trela
- NB Indy<christopher@firebrandmediainc.com>, "Ray.Armstrong_na,da.ocgov.com"
<Ray.Armstrong_@da.ocgov.com>, Lauri Preedge <Lpreedge@ mail.com>, Dave Kiff
<DKiffgneyMortbeachca.gov>, CityCouncil@newportbeachca.gov
Subject: Re: Written comment objecting to Item IV.A (CC agenda, 4/24/2018)
May I respectfully disagree.
In this guide to the Brown Act, hftps://www.eacities.org/Resources-Documents/Resources-Section/Open-
Govemment/Open-Public-2016.aspx, the discussion of closed session is described as follows:
As summarized in Chapter 1 of this Guide, it is clear that the Brown Act must be interpreted liberally in favor
of open meetings, and exceptions that limit public access (including the exceptions for closed session
meetings) must be narrowly construed.2 The most common purposes of the closed session provisions in the
Brown Act are to avoid revealing confidential information (e.g., prejudicing the city's position in litigation or
compromising the privacy interests of employees). Closed sessions should be conducted keeping those narrow
purposes in mind. It is not enough that a subject is sensitive, embarrassing, or controversial. Without specific
authority in the Brown Act for a closed session, a matter to be considered by a legislative body must be
discussed in public. As an example, a board of police commissioners cannot meet in closed session to provide
general policy guidance to a police chief, even though some matters are sensitive and the commission
considers their disclosure contrary to the public interest.3
Using this description, you may not remove discussion such as how to pick the next city manager from the
public purview and doing so appears to me to be a clear violation of the Brown Act (again).
I hereby request that the discussion of the next city manager be removed from the closed session and put into
the public part of the meeting.
I notice that you removed the city council members from this discussion and I have put them back in. You
believe that you are putting them at legal jeopardy by your actions.
Susan Skinner
On Apr 23, 2018, at 6:48 AM, Harp, Aaron <aharpAnewportbeachca.gov> wrote:
Good Morning Ms. Skinner and Mr. Mosher,
As you know, the Brown Act provides standard language that can be
used on agenda to make sure the public knows what is being
discussed. In this circumstance, the only notice that needed to be
provided was the following:
1. PUBLIC EMPLOYMENT
Title: City Manager
However, after giving this some thought, I decided to provide more
notice (beyond that required by law) to make sure people didn't
think the City Council was actually appointing a new City Manager at
this meeting. I was a little surprised by Mr. Mosher's email because
he has long been an advocate of over -noticing Closed Session
matters.
I do appreciate your concern but please know that the noticing for
the meeting as well as the items to be discussed in Closed Session are
authorized by the Brown Act. Hope this helps clarify matters.
Aaron C. Harp
City Attorney
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA, 92660
Phone: (949) 644-3131
Fax: (949) 644-3139
Email: sharp@newportbeachca.gov
CONFIDENTIALITY NOTICE: The information in this e-mail message is
intended for the confidential use of the addressees only. The
information is subject to the attorney-client privilege and/or may be
2
attorney work -product. Recipients should not file copies of this e-
mail with publicly accessible records. If you are not an addressee or
an authorized agent responsible for delivering this e-mail to a
designated addressee, you have received this e-mail in error, and any
further review, dissemination distribution, copying or forwarding of
this e-mail is strictly prohibited. Moreover, such inadvertent
disclosure shall not compromise or waive the attorney-client
privilege as to this communication. If you received this e-mail in
error, please notify us immediately at (949) 644-3131. Thank you.
From: Susan Skinner <seskinner@me.com>
Sent: Monday, April 23, 2018 6:01 AM
To: Jim Mosher <iimmosher@vahoo.com>; John Canalis <John.Canalis@latimes.com>;
Christopher Trela - NB Indy<christopher@firebrandmediainc.com>;
Ray.Armstrong@da.ocgov.com; Harp, Aaron <aharp@newportbeachca.gov>; Lauri
Preedge <Lpreedge@gmail.com>; Dept - City Council
<CityCouncil@newportbeachca.gov>
Cc: Hillary Davis <hillary.davis@latimes.com>; Sara Hall
<sara@newportbeach indy.com>; Norberto Santana <nsantana@voiceofoc.org>; Joy
Brenner <iovbrenner@me.com>; Tim Stoaks <timstoaks@sbcgloba1.net>; Phil Greer
<surflaw@aol.com>; Thomas Johnson <tomiohnson@me.com>;
Tom@StuNewsNewport.com
Subject: Re: Written comment objecting to Item IV.A (CC agenda, 4/24/2018)
I received this Email last evening from Jim Mosher regarding another presumed
violation of the Brown Act at the April 24 City Council meeting.
Mr. Harp: I believe that Mr. Mosher is correct. This action will require the
council to discuss it in open session. I'm not sure if it will need to be re -noticed
and postponed due to the short time frame. I also notice that you have not
addressed the last `cure and correct' letter in this council's agenda and request
that you do so.
I am including Mr. Armstrong, the District Attorney who was notified of the prior
Brown Act violation on this Email.
Lauri: Will you write and submit another `cure and correct' letter for the council
on this issue?
To the reporters: Please consider an independent investigation into the actions of
this council. I have been including most of you in my Email trains about this, but
if you have questions, I'm happy to talk with you.
To the City Council: Your actions thus far have been reprehensible and it is my
intention to broadcast this latest issue far and wide. I have already posted it on
Next Door and will be sending it out to my growing Email list of residents who
are outraged by your actions. It is my hope that this action will finally become a
politically career limiting move for the "Gang of 4".
Susan Skinner
On Apr 22, 2018, at 10:56 PM, Jim Mosher
<jimmoshergyahoo.com> wrote:
FYI —
As you may or may not know the City Council
is scheduled to spend more than two hours behind closed
doors this Tuesday afternoon discussing "the recruitment
process" for the new city manager — before the possible
selection of a recruitment firm at the end of the public
evening meeting.
I am unable to find any justification for a closed session on
that topic in the Brown Act, and if there is no statutory
justification, then it's illegal — compounding the questionable
acts we witnessed at the April 10 meeting (where they met in
closed session to evaluate the performance of the current
City Manager after it had been announced he was leaving
their employment, and met in closed session to instruct the
Mayor regarding salary negotiations with the City
Manager after the negotiations had clearly been completed
and a contract signed).
While the Council is allowed (but not required) to interview
candidates and make a selection in private, as far as I know
everything about the process leading up to that is required to
be open and public.
-- Jim Mosher
----- Forwarded Message -----
From: Jim Mosher <jimmosher(d-)yahoo.com>
To: City Clerk's Office <cityclerk newportbeachca.gov>
Cc: Newport Beach City Council<citycouncil(c�newportbeachca.gov>;
Aaron Harp <aharp(D_newportbeachca.gov>
Sent: Sunday, April 22, 2018 10:27 PM
Subject: Written comment objecting to Item IV.A (CC agenda,
4/24/2018)
Madam Clerk,
Please find attached a written comment objecting to Item
IV.A on the April 24, 2018, Newport Beach City Council
agenda (announcing, I believe improperly, closed session
discussion of "Initiation of Recruitment Process for New City
Manager").
Yours sincerely,
Jim Mosher
<2018Apr24_Agendaltem_IV . A_Comments_JimMosher.pdfl
Received After Agenda Printed
April 23, 2018
Item No. 11
From: Garry Short <garrylshort@hotmail.com>
Sent: Monday, April 23, 2018 12:13 AM
To: Dept - City Council
Subject: I Agree With Pilot Columnist That'NB City Manager Should Stay on Job As Long As He
Wants"
By Barbara Venezia
Mar 29, 2018 14:45 PM
Newport Beach City Manager Dave Kiff (Courtesy of city of Newport Beach)
The only thing missing were the pitchforks and torches as angry Newport Beach residents stepped to the
podium in public comments at Tuesday's City Council meeting.
Residents praised their beloved city manager, Dave Kiff, begging him to stay and not take early retirement in
one breath and chastising council members Scott Peotter, Will O'Neill and Kevin Muldoon and Mayor Marshall
"Duffy" Duffield in the next. Speakers claimed those men played a behind -the -scenes role in Kiff s premature
departure.
At the heart of many comments were the same issues I raised Monday regarding the allegations of how some
council members pressured Kiff into announcing his early adios in a news release Sunday night.
Kiff originally had planned to retire in mid -2019 after this fall's council elections, as he wanted to transition
new council members before he stepped away.
My column questioned the rush of the news release, the circumstances leading to Kiff s decision and whose
agendas may benefit from his early retirement.
I wasn't the only one who thought something wasn't adding up, which was apparent Tuesday night.
I'm not going to go into the rudeness Muldoon exhibited from the dais to former state Assemblywoman Marilyn
Brewer as she made her strong feelings known on the subject.
Or how former Mayor Nancy Gardner's emotions overtook her and she abruptly left the podium.
Or how eloquently former Mayor Mike Henn skewered council members with his biting comments.
Watch the video for yourself here.
Kiff prepared a statement he was going to read at the end of the council meeting, announcing his early
departure. That didn't happen.
So in reality, firming up his retirement timeline is still open.
I figure he has few options.
He could just quit, leaving city staff and government in chaos, but I don't see that fitting his strong moral
compass.
So that leaves him either retiring before the end of the year, as the news release states, or sticking to his original
timeline and leaving in mid -2019.
In light of the community sentiment in Kiff s favor expressed Tuesday night, any council member who would
even think about trying to make Kiff s life miserable would be crazy to do so.
Personally, I'd like to see him take his original road because Kiff s pathway to retirement has been handled so
poorly by city officials that someone needs to hit the brakes here.
There needs to be a clearer exit strategy that ensures optimum results for residents and a smooth transition for
city government — minus any personal agendas.
And since the council never took a formal vote directing members to have discussions with Kiff about his
employment situation, and there was nothing on the agenda Tuesday night to deal with Kiff leaving, council
members haven't yet talked about any of this formally in an open meeting.
They will soon.
"The mayor has asked to have a sixth amended and restated employment agreement for Mr. Kiff placed on the
agenda for the next City Council meeting," City Attorney Aaron Harp tells me. "This was reflected on the
tentative agenda distributed prior to last night's meeting."
Amend his agreement in two weeks?
Councilman Jeff Herdman, who strongly supports Kiff, said that without prior council authority to even start
talking about Kiff s contract, how could he even be asked to vote on an amended contract?
The whole thing is a mess.
I believe council members Diane Dixon, Brad Avery and Herdman were kept out of the loop regarding Kiff s
early retirement.
And I believe Duffield, Peotter and O'Neill want Kiff gone to satisfy their agendas.
I'm convinced something went on here, and maybe we need to rephrase the question since everyone on the
council seems to be denying there was an unauthorized "meeting" with Kiff and certain council members were
urging his early exit.
On Wednesday, I asked Peotter, Duffield, Muldoon and O'Neill whether at any time they'd had individual
conversations or sent emails to Kiff asking or suggesting that he retire early.
As of deadline — no word back. I'm not holding my breath.
Moving forward, I feel the poor handling of the Kiff situation will affect this year's re-election campaigns of
Muldoon, Duffield and Peotter.
Politics is all about optics, and based on what I saw Tuesday night, the public has lost trust in those officials,
with some calling them an embarrassment to the city.
It's tough to come back from something like this.
Maybe Kiff won't be the only guy leaving City Hall before January.
BARBARA VENEZIA is an opinion columnist writing political and social commentary since 2007. She can be
reached at bvontvl@gmail.com
April 24, 2018, Council Agenda Item 11 Comments
The following comments on an item on the Newport Beach City Council agenda are submitted by:
Jim Mosher ( jimmosher6d.yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229)
Item 11. Selection of an Executive Search Firm to Assist in the
Recruitment of a New City Manager
In my view, the Council has not, so far, done a particularly good job of looking for a new City
Manager.
I believe the abrupt, surprise announcement in March of the imminent departure of the present
City Manager has created a not -particularly -favorable environment for finding quality candidates
to fill the position.
I believe it was a mistake, on April 10, to approve a new contract with the present City Manager
setting what appears to be an entirely artificial and unchangeable termination date of August 31,
2018. That places what seems to me an unnecessary time pressure on the process of finding a
replacement, and leaves uncertain what the "Plan B" is if one is not found by then.
If any change to the existing City Manager contract was necessary, I believe it should have
been to guarantee service by the present Manager though the installation of his permanent
replacement, whenever that might be, and possibly for a transition period thereafter.
I believe it was also a mistake, on April 10, to assign coordination of the recruitment process to
the City Clerk, who admitted such matters were outside her range of expertise or experience.
Since the Council has a respected, and according to the Council very competent, City Manager
in place, I believe the Council should have instead used its Charter powers to direct him to
coordinate the replacement search, using the existing Council -authorized Human Resources
apparatus that it has placed under his command.
At least to me, the present staff report reflects what might be expected from the combination of
haste and inexperience.
It looks like, after being unexpectedly tasked with this duty on April 10, the City Clerk informally
contacted nine executive recruiting firms. Neither the Council nor the public seems to know what
was asked or if a deadline to respond was set, but only the bare fact that by April 18 three
mostly boilerplate responses were received (one, rather inexplicably, including as a sample of
their work a recruitment brochure for what looks like an HOA property manager position).
The three responses are presented with no particular professional analysis (understandably,
since this not within the Clerk's range of expertise) of the strengths or weaknesses of the firms,
or why only three responded. In that regard, it is unclear from the report if April 18 was a firm
deadline, why it was imposed, if any responses were received after that date, and whether the
non -respondents showed a positive disinterest in working for Newport Beach. The non-
response from Teri Black & Company, which performed the City's 2009 City Manager search
April 24, 2018, City Council Agenda Item 11 Comments - Jim Mosher Page 2 of 2
(see Item S20 from May 12, 2009), and formerly had an on-call relationship with the City, is
particularly puzzling.
The Council is also being asked to authorize the Mayor and Clerk to enter into an agreement
with one of the three firms (or possibly to use an "existing agreement" — which I am unable to
find — with one of them), without disclosing the details of the proposed agreement to either the
full Council or the public. I find that especially strange, since the details of what the recruiting
firm is being asked to do seem very important, and may differ from any of the proposals
received.
This may be contrasted with the City Attorney recruitment in 2008 (see Item S32 from the June
24, 2008, City Council meeting), managed by the City's HR Department, where the Council and
public had a chance to review a clear anticipated timeline for the process (expected to take six
months) and the solicitation letter to be sent to the candidate recruiting firms (the list of which
the Council was invited to add to). Those firms were given two weeks to prepare proposals.
And Item S29 from the July 22, 2008, Council meeting indicates seven responses were
received, including all but two on the original list of eight. Before selection, three of the
respondents were interviewed by a Council committee.
The current response rate of just three out of nine, and lack of any clear tailoring of the
proposed work to parameters provided by the City Council are both troubling.
Since the current agenda indicates more than two hours will be spent on an (arguably illegal)
closed session discussion regarding "Initiation of Recruitment Process for New City Manager"
(see posted April 24, 2018, agenda Item IV.A), it is unclear if Item IV.A is intended as a warm-up
to this item, in which the three respondents will be discussed and possibly interviewed. Or if the
Council is being asked to make its selection of a recruiting firm based solely on the written
responses, dispensing with interviews altogether.
With regard to the need to discuss the recruitment process in private, and my previous comment
on Item IV.A, it might be noted that the 2008 recruitment for City Attorney and 2009 recruitment
for City Manager were conducted, as the Brown Act would seem to require, without benefit of
closed session except for the final candidate interviews and appointment.
The above is not meant to suggest there were "good old days" when things were done much
better in Newport Beach — there were not (the 2008 and 2009 processes involving an ad hoc
committee meeting in private whose recommendations were rubberstamped in public by the
Council as a whole) — but only that they could be done better now.
As to the typical ground rules for city manager recruitments in general, if the Council members
have not read it, or received any other guidance, they might find the 2004 ICMA article by Rod
Gould and Glenn Southard helpful. One would hope there are indeed some characteristics
unique to Newport Beach that we would be looking for in both a recruitment firm and in the
candidates for City Manager — something beyond the usual city manager boilerplate.
Received After Agenda Printed
April 24, 2018
Item No. 11
April 24, 2018
Dear Mayor Duffield and members of the City Council:
The community members of CAANP (Citizen's Against Airport Noise and Pollution) are very
concerned by the early departure of Dave Kiff, City Manager, at this critical time in the process
of getting a residents' resolution to the airport noise and pollution from JWA.
Dave Kiff is the person with the most knowledge of the airport issues and has been
instrumental in spearheading the recent city and community groups in their joint effort to find
a resolution to the intolerable quality of life as a result of the airport. In the past few months,
the City has hired a DC lobbyist, a public relations firm and HMMH, an aviation noise firm, to
work on gathering data and implementing a plan for the quietest, least pollutant departures to
bring forth to the FAA, Congress and the airlines.
We greatly appreciate the involvement and efforts of council members Jeff Herdman, Diane
Dixon and Kevin Muldoon, in this JWA noise and pollution issue. However, at this juncture, it is
imperative that Dave continues to lead the effort and having him depart will be extremely
detrimental to our efforts and to the community.
CAANP would also like to urge the council members to hire a national executive recruiting firm
to find his replacement and include a committee of community members actively working on
the airport issue to be involved in the process. The qualifications for the incoming Newport
Beach City Manager are extensive and even more complex given the airport issues and 1985
Settlement Agreement.
Sincerely,
The members of CAANP