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RECEIVED AFTER AGENDA PRINTED <br />July 30, 2018 <br />CLOSED SESSION WRITTEN COMMENTS <br />July 30, 2018, Council Special Meeting Agenda Comments <br />The following comments on items on the Newport Beach City Council agenda are submitted by: <br />Jim Mosher ( jimmosher( ), 2210 Private Road, Newport Beach 92660 (949-548-6229) <br />Item N.A. PUBLIC EMPLOYEE APPOINTMENT (City Manager) - <br />Government Code § 54957(b)(1) <br />Process <br />Seeing the surprise agenda notice saying the Council will be meeting privately to conduct <br />interviews with candidates for City Manager (which we know from the July 24 closed session <br />report will be with three finalists), and possibly doing everything legally allowed to be done in <br />closed session under that heading, but that "the City Council will not be appointing a new City <br />Manager at this meeting," gives me pause to think this Council is going down the same path <br />earlier ones did, and, like them, does not fully understand its public reporting obligations under <br />the Brown Act (California Government Code Sections 54950 - 54963). <br />1 suspect the previously -announced August 13 interviews are being moved up to July 30 so the <br />Mayor can begin negotiations with the person selected (from among the three) in time to have a <br />contract accepted by him or her and ready for final Council approval at its August 14 meeting. <br />This is relevant because in previous City Manager recruitments (such as in 2009), the Council <br />seems to have operated under the fiction that action on an appointment has not taken place <br />until both parties have agreed to contract — allowing closed session protections to used to the <br />hilt up until that point, including sharing the identity of its selection, and final contract terms, with <br />the appointee, but not with the public. <br />I do not believe that was ever how the Brown Act was intended to be interpreted, and I certainly <br />don't think that's how the people intended for it to be interpreted after passage of Proposition 59 <br />— demanding, as it did, that after 2004 its words be construed broadly when such an <br />interpretation favors openness, and narrowly when a proposed interpretation would deepen <br />secrecy (see California Constitution, Article I, Sec. 3(b)). <br />To clarify, under the terms of our City Charter, we rely on a City Council of seven elected <br />members that acts collectively, and can take action only by majority vote (normally discussed <br />and taken in public). <br />By its own words, Government Code Section 54957(b)(1) (the Brown Act section under which <br />the present closed session is being held) allows such a city council to meet privately "to <br />consider the appointment, employment, evaluation of performance, discipline, or <br />dismissal of a public employee." But while this allows the details of the discussion to be kept <br />secret, it cannot be used to hide the results of the discussions. <br />Indeed, Gov. Code Section 54957.1(a)(5) requires that "Action taken to appoint, employ, <br />dismiss, accept the resignation of, or otherwise affect the employment status of a public <br />