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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed April 9, 2018 Written Comments April 9, 2019, City Council Consent Calendar Comments The following comments on items 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 1. Minutes for the March 26, 2019 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections indicated in st mikeoutunderline format. The page numbers refer to Volume 64. Page 62, Item SS2, paragraph 1: "Public Works Director Webb and Pat* nn,:nten,^^^ Supervisor O^bar gave a brief overview of the item and introduced Victoria Hornbaker, ..." [?? According to the video, Park Maintenance Supervisor/City Arborist Kevin Pekar was not seated at the staff table and does not appear to have participated in this item. If he did speak, it does not seem to have been to give an overview or to introduce other speakers. Deputy Director Micah Martin was at the table, but does not appear to have said anything, either.] Page 66, bullet 2 from end: "Attended the -xeGUUV Watershed Executive Committee meeting and..." Page 67, bullet 3: "Met with Deb Johnson of Second Chance Orange County, toured City Hall with Boy Scout Connor Stevens, awl visited the Municipal Operations Department and toured various City sites." Page 69, last line before Item XVI: "The motion unanimously carried." [I continue to think this new wording (used in five places in the present minutes) is unnatural. It is much more common to put the modifier after the verb, as in "The motion unanimous y carried unanimously'— the latter sequence of words being found many more times by Google (383,000 vs. 17,000)] Page 70, Item 14, paragraph 4: "Jim Mosher noted the report was detailed, but believed the public should ignore the staff report and focus on the Implementation Program, even though it needs updating. He took issue that the Planning Commission has never reviewed adjacent agencies' capital improvement programs and discussed State requirements regarding General Plan compliance." [In commenting on staff's 2018 General Plan Status Report, I said it did not provide the required discussion of the current General Plan's compliance with the state General Plan Guidelines. That comment was wrong. It was based on the version presented to the Planning Commission on March 7. The version presented to the City Council on March 26, and submitted to the state, did, in fact, contain the required discussion (added since the PC session) under Implementation Program 1.3 on staff report page 14-43.] Page 71, Item 15, paragraph 5: "Shawna Schaffner, representing the appellants, provided a brief history, indicated all appellants have agreed to the i�Dd compromise plan, ..." April 9, 2019, City Council Consent Calendar Comments - Jim Mosher Page 2 of 10 Page 71, Item 15, paragraph 7: "Jim Mosher further explained project and pierhead lines, ... and questioned if the City has the authority to approve the project since it is on Countyd- administered water." [With regard to the Newport Marina appeal, at 3:55 p.m, five minutes before the start of the Council's 4:00 p.m. study session, having seen the revised resolution granting an Approval In Concept as distributed in the Council Chambers lobby, I sent staff and the Council a last- minute email questioning staff's interpretation of the project's compliance with the pierhead and project lines, and showing two screenshots from the City's GIS mapping system. In that email, I inexplicably referred to the colored lines in the images running from "the pierhead line (yellow) to the project line (blue)". That may have caused some unintended further confusion. The "project line" is red (not blue) in the GIS system.] Item 3. Introduction of an Ordinance Amending Title 15 of the Newport Beach Municipal Code Setting Time Limits to Complete Construction This ordinance has evolved considerably from the three brief paragraphs proposed as Item 16 on March 12, 2019. It now takes five full pages to express the ordinance's intent, but it continues to have problems: 1. It proposes changes to a chapter of the Municipal Code which itself adopts a division of the California Building Code with certain Newport -Beach -specific additions, deletions and amendments. As it was on March 12, it is difficult to assess the significance of those modifications (including the currently proposed ones) without seeing the larger chapter of administrative building code that is being modified. In fact, it is the entire modified "Chapter 1, Division II of the 2016 Edition of the California Building Code," as adopted by the City (and which will need to be replace with the new edition by the end of this year), that is the relevant law, and the regulations that the proposed modified Division II imposes cannot be deduced from seeing only the list of changes in NBMC Chapter 15.02. 2. When viewed in context, the proposed new subsections 105.3.3, 105.3.4 and 105.3.5 appear misplaced. a. They are proposed to be put in a subsection (of "SECTION 105 — PERMITS") titled 105.3 - Application for permit." But the proposed changes have nothing to do with the process of applying for building permits, which has its own 180 -day expiration rules and extension allowances that apply when the application process is not completed in a timely fashion. b. Instead, the present proposal has to do with the time within which a complete project, possibly consisting of many separate permits, must be completed. In effect, Newport Beach seems to be creating a separate "project permit" or "project clock" which starts running with the issuance of the first permit and which results in a penalty if all the permits associated with a project are not completed by the time the clock reaches its end. April 9, 2019, City Council Consent Calendar Comments - Jim Mosher Page 3 of 10 Since this doesn't fit squarely into any of the existing concepts within Section 105, it really seems like it should be a separate subsection "105.8 — Time limit on projects." 3. It might be noted that the Division II that the City is adopting has its own appeals process defined in "SECTION 113 - BOARD OF APPEALS," which seems predicated on the idea that the Building Official will be making decisions regarding application of the code. In Newport Beach, the little -used Building and Fire Board of Appeals, defined by NBMC Chapter 15.80 would normally be expected to hear such appeals. 4. By interposing a Hearing Officer (oddly, without referencing NBMC Sec. 1.08.055 - Hearing Officer) for some extensions, and the City Council for others, and by making their decisions final, the proposed ordinance is creating an odd situation in which permit holders cannot appeal to the Council if their first or second attempt to obtain an extension is denied, but they must on a third or later try. 5. If an appeal does go to the Council (and I would hope all have a way to get there), the Council may wish to reserve for itself the authority to grant extensions for more than 180 days. 6. When the Council reviewed the first iteration of this on March 12, the discussion (folded in with that about parking impacts) focused solely on concerns about slow -to -complete residential construction projections. The present version sets the same time limits on all construction projects, whether they are residential or near residences, or not. That may, or may not, be the intention of the Council. 7. Without suggesting this is the ordinance the Council wants to adopt, with regard to the purely technical aspects of the proposed language: a. In the proposed headings on page 3-5, what are cited as a "Section" of the code are really a "Subsection." And under 15.02.060, there is no existing 102.7, so it's not possible to "add to" it. In parallel with 15.02.095, the purpose of 15.02.060 should be stated as: "Addition of (Sub)section 102.7." b. In the last paragraph of the proposed (Sub)section 105.3.3 on page 3-6, it seems unwise (and illogical) to add a reference to the NBMC within the modified state Administrative Code. I would suggest: "... for purposes of SeGtion 15 02 09 Subsections 105.3.3, 105.3.4 and 105.3.5." On page 3-7, it seems strange the requests for extension are filed with the City Clerk rather than with the Building Official (or Community Development Director), especially since, per 1(b) the Building Official has the power to alter the deadline for submission. d. With regard to 1(c) on page 3-7, 1 don't think a filing fee has been established yet. e. At the bottom of page 3-8, under "Conduct of Hearing," the ordinance does not make clear that the hearing will be open to the public (which I assume is the Council's intent), and not just to the people who have seen the notice. April 9, 2019, City Council Consent Calendar Comments - Jim Mosher Page 4 of 10 f. As noted above, the Subsection 5 (Judicial Review) at the top of the page 3-10 indicates that decisions by the hearing officer cannot be appealed to the City Council — which I doubt is the Council's intent (since Mayor Dixon told a recent Town Hall that it is a fundamental right of citizenship to be able to appeal all governmental decisions to our elected representatives). It also makes a confusing reference to NBMC Sec. 15.02.095 (which is the ordinance adopting this new code), without clearly explaining exactly what "in" 15.02.095 has to be exhausted (I personally do not know what it means). Additional note: the proposed "Attachment A — Ordinance No. 2019-8" has been posted in an "image PDF" format, which means the text content cannot be searched, copied or pasted from. This is a poor format for public review. To the extent the City regards its internet postings as "open data," this format is inconsistent with Section 6253.10 of California's Public Records Act. This seems to be true of all the attachments posted in connection with the present meeting that are identified as ordinances or resolutions, and some, but not all, of the contracts and agreements, making much of the agenda packet unsearchable (both in the single file PDF ["Full Packet as of 4-5-19"] and if the individual documents are downloaded from Legistar/Granicus). Given the very short time the public (and Council) have to review and comment on the packet, this barrier to review does not help. Item 4. Resolution No. 2019-32: Proposed Revisions to City Council Policy A-12, Discretionary Grants After voting to put it on the agenda, the Council last reviewed this policy as Item 16 on August 11, 2015. Per the minutes, no action was taken at that time. I do not recall the Council voting to revisit it since then, even though the staff report says it was requested by the Council. That said, folding in a reference to Council Policy 1-10 ("Financial Support for Culture and Arts") is helpful, although the recommended changes do not address all the problems connected with the City's grants program. For example, Visit Newport Beach appears to donate an unknown amount of the Transient Occupancy Tax revenue given to them to support various events hosted by some of the same organizations the City supports through this policy. And City staff apparently feels empowered to make other grants, such as to "merchants associations," that do not seem to be governed by any of these policies. Finally, in connection with Policy 1-10, it might be noted it continues to refer to "developing a master plan for the promotion of culture and arts" — a project that was never completed despite a considerable expenditure of time and money on it. April 9, 2019, City Council Consent Calendar Comments - Jim Mosher Page 5 of 10 Item 5. Resolution No. 2019-33: Formation of Ad Hoc Committee on Election Reform Base on Section 1 of the proposed resolution, confining activity to a review of "the NBMC governing elections," this committee appears to be somewhat misnamed. Is this reference confined to Chapter 1.25 ("Municipal Election Campaign Contribution and Expenditure Control")? If so, this would seem to be the "Ad Hoc Committee on Campaign Finance Reform." Or does it have a broader scope, including consideration of Chapter 1.32 ("Council Term Limits") and even more fundamental changes to the election system, such as going to at -large or by -district (as opposed to from -district) elections and changes to the voting system (instant run-off or ??), which may require voter approval through a City Charter amendment? See note on Item 3: the proposed resolution has been posted in a viewable but non -machine- readable "image PDF" format inconsistent with the requirements for "open data" agenda materials per Section 6253.10 of California's Public Records Act. Item 7. Resolution No. 2019-35: Adopting the 2019 Key and Management Compensation Plan for the Period January 1, 2019 through December 31, 2021, and Amending the City's Salary Schedule 1. It should be noted that the recommended actions directly affect the compensation of one of the two persons providing the report and potentially affect the compensation of the other (by changing her allowable salary range). Is this a problem? Should it be coming from someone not affected? 2. Recommended action "d" (directing staff to revise the Citywide salary schedule) appears to duplicate something action "b" already says it is doing. How, if at all, does action "d" add to what is being accomplished through Section 2 of Resolution No. 2019-35 on page 7-5? 3. I appreciate the "Environmental Review" boilerplate on page 7-3 of the staff report having been revised to indicate the "Chapter 3" referred to is found in Division 6 of Title 14 of the California Code of Regulations. It would be good if the boilerplate in all City staff reports were similarly corrected. 4. 1 appreciate the Plan having been "sunshined" to public as Item 4 on March 26, 2019, including a redline comparing the proposed Plan to the existing one. However, it appears quite a few changes have been made since then, which are not highlighted in any clear way (although italics seem to be used for words that are new to the proposed Plan compared to the existing one, passages that have been deleted are not indicated in any way, and the new words that are different from those presented on March 26 are not distinguished from those that are the same). April 9, 2019, City Council Consent Calendar Comments - Jim Mosher Page 6 of 10 5. Regarding the proposed 2019-2021 Plan: a. Page 7-10 says "The Key and Management Group is divided into five categories" (which it names) and that "Appendix A lists all classifications in each category." While Appendix A appears to list all of the positions subject to the Plan, it does not identify which jobs fall within which of the five categories, which makes it impossible to interpret which jobs the regulations applying to specific categories apply to. The uncertainty about who is in what category makes particularly inscrutable the meaning of the directive in Section C on page 7-12 that "All Executive Management performance evaluations will be reviewed by the City Manager prior to implementation of any range advancement." Is the City Manager in the "Executive Management" category? Does she review her own evaluation and make a decision about her own promotion based on it? ii. Appendix A needs to be rearranged to list the jobs under headings identifying the category that applies to them. iii. Among those categories, shouldn't "Administrative Management" be "Administrative Management -Non -safety' to distinguish it from "Administrative Management -Safety'? iv. The uncertainty about what jobs are in what categories is compounded by the purposeful change, in this edition of the Plan, to the last paragraph on page 7-15, so that it now reads "Regular full-time employees in the Executive Management categories will earn Flex leave according to the following schedule" (instead of "category'). Are there multiple Executive Management categories? If so, how does one know which of those a particular reference to "Executive Management" applies to? v. Within the Plan, many of the distinctions are between "safety" and "non -safety" K&M employees, without, at many times, a clear indication of which of the listed jobs fit which of those descriptions. This is particularly confusing because the staff report (page 7-2) says "There are approximately 81 miscellaneous (non - safety) and six (6) safety unrepresented, budgeted positions assigned to K&M," yet when specific safety positions are listed, the number seems less than six. I believe the staff report is referring to the number of K&M employees, rather than qualifying position titles. Appendix A to the Plan actually lists 71 position titles falling within the Plan. At a given time, there may evidently be more than one employee fitting some (but not all) of those descriptions. vi. In addition, although the staff report says "the City has traditionally provided K&M employees with compensation and benefit adjustments comparable to NBCEA and NBPTEA to maintain parity' (those MOU's having most recently been approved as Item 4 on March 12, 2019), as far as I know those associations contain no safety employees. So, as the Plan itself acknowledges, some of the provisions in it for K&M safety employees are drawn from other sources. April 9, 2019, City Council Consent Calendar Comments - Jim Mosher Page 7 of 10 b. Section A ("SALARY"), starting on page 7-10, is one of those that has been modified extensively from the draft presented on March 26, and its intent is not entirely clear. Apparently it is to be taken as a directive to increase both salary ranges and (except for the five officers described with the asterisk) base salaries. But only base salaries are mentioned. One of the curious effects of the salary ranges as they have been adjusted in the past is that the top of range for the Assistant City Attorney ($243,048) exceeds that for the City Attorney ($237,806). Since both positions are in the K&M group, that disparity will apparently continue after the presently -proposed range adjustments. The "Safety" subsection explains how only three of the K&M safety positions are to be treated, and among those three, only two appear to be treated differently than the employees in the "Non -safety" subsection. From this it is impossible to tell how the salary ranges for the Police Chief, Fire Chief and "Fire Division Chief - Emergency Med. Srvs" (if that is a safety position) are to be adjusted. iii. The explanation of the asterisk on page 7-11, seems to have application outside the "salary" subsection in which it is found, for it implies that of all the rules about compensation, only those regarding the adjustment of salary ranges are guaranteed to apply to the five named employees with separate contracts. Aren't matters "C through "G" (on pages 7-12 through 7-13) to be dealt with on an open and individual basis in those contracts? c. Section G ("UNIFORM ALLOWANCE —PUBLIC SAFETY") on page 7-13 lists five public safety positions within the K&M group, comprising, I believe, six employees (since we have two Assistant Police Chiefs in the budget). i. Is the "Fire Division Chief - Emergency Med. Srvs." (page 7-30) also a safety employee (I am unable to tell from the Plan or the job description)? If so: 1. Does he/she also receive a uniform allowance? 2. Does he/she need to be included in the other sections of the Plan listing special provisions for safety employees (such as pages 7-21 through 7-23? ii. Are provisions needed regarding who pays for uniforms for non -safety K&M employees required or expected to wear them, such as the "Fire Marshal (Civilian)"? d. Section H ("ONE-TIME PAYMENT") on page 7-13 offers to the public safety K&M employees a one-time $2,700 bonus (above and beyond normal salary) that the City does not seem to be offering to other City safety employees (at least I can't find it in their MOU's). The previous plan said only "non -safety' K&M employees were eligible for the gift. ii. In the present Plan, that word has been changed to "eligible" K&M employees. April 9, 2019, City Council Consent Calendar Comments - Jim Mosher Page 8 of 10 iii. Do the non-K&M safety employees now receive this gift, as well? e. For K&M employees on the 9/80 schedule, Section A ("HOLIDAY LEAVE") on page 7-14 explains in detail what happens if a holiday falls on one their 8 -hour days versus a 9 -hour day, but (like the MOU's with the employee groups) it leaves unclear if they are entitled to compensation if a holiday happens, by chance, to fall on one of their designated days off. Retroactive and Unexplained Pay Without going into detail about all the remaining features of the proposed K&M Plan, two of the preceding provisions are particularly troubling to me: 1. The provisions in Section A of "Compensation" (page 7-10) making salary adjustments retroactive to January 1. 2. Section H of "Compensation" (page 7-13) giving all K&M employees employed on the date of the Council meeting a gift of $2,700 with no explanation of what it is for (the City Manager, City Attorney, City Clerk, Police Chief and Fire Chief are not included in this largesse, but all of are being given the same gift, without explanation, in the separate agenda Items 18 and 19). These provisions offend my sense of two fundamental state constitutional protections I thought Californians (and citizens of many other states) were supposed to enjoy with respect to the expenditure of our public funds: First, that when people provide services to the government, the amount they are to be paid is supposed to be publicly set in advance, and the government is not authorized to pay anything more than the originally agreed to amount. Second, that the government is not authorized to make arbitrary gifts of public funds. A very clear prohibition against cities offering retroactive compensation is found in Article XI, Section 10(a). As pointed out by our former Assistant City Attorney, the equally clear constitutional prohibition against making gifts of public funds, which is found in Article XVI, Section 6, technically restrains only the Legislature. But it is generally assumed to apply to all divisions of California government, and if the present City Council doesn't think it applies to Newport Beach, an amendment clarifying this in the City Charter is urgently needed. On the theory that employees were working at an "uncertain" rate, California courts have sanctioned retroactive "salary adjustments" back to the end of an expired agreement with an employee bargaining unit as not being "extra compensation" in cases like Goleta Educators Assn. v. Dall'Armi, 68 Cal. App. 3d 830 (1977) and San Joaquin County Employees'Assn., Inc. v. County of San Joaquin, 39 Cal. App.3d 83 (1974). Both these were cited with approval by the 5:2 majority of the California Supreme Court when in Jarvis v. Cory, 28 Cal.3d 562 (1980) they found constitutional a one-time lump -sum payment by the Legislature to state employees. In footnote 10, the Court chose not to disturb the Legislature's finding that the lump -sum payment was not an impermissible gift of public funds because it served a public purpose in promoting the recruitment and retention of state employees. And over a vigorous dissent, despite there being no expired contract or ongoing negotiations, the majority found the payment for past April 9, 2019, City Council Consent Calendar Comments - Jim Mosher Page 9 of 10 service should be regarded as a belated "salary adjustment" and not "extra compensation." However, they strongly emphasized the circumstances under which the state employees had "justifiable uncertainty regarding their salary levels" were unique and unlikely to recur — a point emphasized, again in footnote 11 to California Medical Assn. v. Lackner, 117 Cal. App. 3d 552 (1981). In the present case, it might be argued that the expiration of the previous Key and Management Compensation Plan on January 1, 2019, created uncertainty about the wage rates at which the K&M employees were working after that time. However, the Plan is not a legal agreement signed by the two parties, and not as the staff report emphasizes (page 7-2) the K&M employees (other than those appointed directly by the City Council) "do not negotiate or bargain." So the idea their pay and benefits will track the concessions won by the bargaining units is merely "tradition" — and beyond the expiration of the last Plan ) the K&M employees had no certainty the Council would offer similar concessions to them. Since the Key and Management Compensation Plan is not a contract, but rather a proclamation of Council Policy, I would suggest the messiness of making retroactive salary adjustments could be avoided by leaving open the end date, and simply saying it is the plan in effect from the date of passage until further notice. This leaves unresolved the question of why the public should not regard the $2,700 one-time payment, for which the Council offers no explanation or justification, as a gift of public funds. It could be a "thank you" for a job well done during the last Plan period, but then it would seem to be illegal "extra compensation." Or it could be to promote recruitment and retention, but it does not seem to be tied to retention: K&M employees do not have to promise to stay with the City a certain number of days or years to qualify. Indeed, it is given to any K&M employee working on April 9, and under the terms of the proposed Plan they would expect to receive the $2,700 even if they quit on April 10 to go look for a better job. It is hard to see this as anything other than a gift. As best I can tell, the gift (at that time $2,400) originated, again without explanation, when the 2015 MOU's for the City Employees Association and the Professional and Technical Employees Association were presented as Item 6 on December 8, 2015 and adopted as Item 6 on January 12, 2016 (staff reports not currently archived). It was not part of the previous agreements adopted as Item 17 on January 22, 2013, and in the December 8, 2015, drafts the $2,400 was referred to as a "bonus" with a statement that "The parties agree that this one-time bonus is not intended to compensate employees for any time worked in the past and/or in the future." The idea seems to have been to offer employees extra compensation, but without it counting toward retirement benefits. And it may have been intended to offset increased employee contributions. Whatever the reason, it would seem there would be better ways of achieving that purpose, especially since the CalPERS regulation cited in the plan and MOU's -- 2 CCR § 571 -- makes reportable special pay the exception to the rule. And even if a gift can be made "not a gift" by proclaiming a public purpose, it is disturbing the proposal to adopt this particular, peculiar mode April 9, 2019, City Council Consent Calendar Comments - Jim Mosher Page 10 of 10 of compensation was not (to the best of my knowledge) ever reviewed by the City's Finance Committee. Item 8. Resolution No. 2019-36: Authorizing the Submittal of an Application for the WaterSMART: Water and Energy Efficiency Grant for 2019 It is good that the person approving the resolution "as to form" for the City Attorney printed her name so that the otherwise indecipherable signature can be identified. It would be even better if people dated their signatures. 1. On page 8-4, the end of the seventh line from the bottom of the page was presumably intended to read: "... 1) the right examine ..." 2. The fifth line might possibly have been intended to read: "... and other information required, ..." [?] 3. The pages that one assumes are "Exhibit A" (pages 8-7 and 8-8) are not labeled as such. I also seem to recall the City's Finance Committee was going to review the purported economic benefits of the proposed Advanced Metering Infrastructure (AMI) project. I do not recall that happening yet. Received After Agenda Printed April 9, 2019 Item No. 14 April 9, 2019, City Council Item 14 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 14. Sculpture Exhibition in Civic Center Park - Phase IV There are some aspects of the staff report that may be a bit misleading, and which might, if known, possibly affect the Council's decision. 1. The number of artworks to choose from was down considerably from earlier phases, and a number of entries were from artists who had entered or displayed similar pieces in the past. 2. The on-line public survey lasted a single week, making it all the more remarkable that 593 persons participated (which is up from the first effort). 3. The description at the bottom of page 14-2 makes it appear the complete panel (or "jury") consisted of two outside "experts." The jury in fact consisted of seven members: the two outside art critics plus five of the City Arts Commissioners The number of CAC members participating was five rather than seven because one CAC seat was vacant and because Commissioner Miriam Baker was not allowed to submit scores, apparently because she could not be present at the March 21 meeting where the scores were publicly revealed (note: the score sheet with all the public and jury scores and rankings passed out at that meeting does not seem to have been archived at the above link). 4. As is often done when recommendations are passed on to the Council, it would have been helpful to include in the staff report the draft minutes of the March 9 and March 21 meetings. They may be found at the preceding links. 5. Contrary to what it says near the top of page 14-3, on March 9 the outside experts and the Arts Commissioners (and the small handful of members of the public in attendance) made only general comments about some of the works they liked or didn't like. They did not publicly score them or choose "ten artworks and three alternates" -- although Rick Stein of ArtsOC did summarize the meeting by naming the 14 works he thought attracted the most interest (three of which were not ultimately included in any lists). The panel, including the Commission, also did not publicly make any decisions about locations for any of the pieces on March 9. They simply toured the park and expressed occasional personal opinions about what might go where. 6. To the best of my recollection, and per the draft minutes, locations were not discussed on March 21, either — although at the April 1 meeting (where, as indicated in the staff report, two of the March 21 selections were deleted), the bare quorum of four Commissioners present did, very briefly, see a slide (prepared by ArtsOC?) showing proposed locations. As a result, as may or may not be apparent from the staff report, the site recommendations being presented to the Council in the present report come almost entirely from staff and their consultant. They are not the fruit of any thoughtful public discussion by the Commission. April 9, 2019, City Council Item 14 Comments - Jim Mosher Page 2 of 2 7. It might also be noted that on April 1, the four Commissioners present deleted the "Mule Deer" sculpture (shown below) because they feared the Council would be worried about liability concerns (fearing residents could injure themselves on the antlers) — even though it had originally been one of the top ten and was ranked number 6 in the public voting and number 2 by the seven -member jury. Since the liability issue is not an artistic consideration, it would seem to me it might be better for the Council to make that call than the Arts Commission, especially since ArtsOC showed simulations of how the work would look if displayed in the middle of the steep slope above the small open parking lot at the north end of the Civic Center Parking Structure. Since the deer on the slope would be essentially inaccessible, the risk of injury would seem minimal (plus it appeared it would look very good and "interesting" at that location). 8. Since the staff report does not indicate the rankings of the three alternates being presented, the Council may wish to know they were: Name Public Rank Jury Rank Exposed 5 16 Fallen Sky 22 7 Hope Springs Eternal 4 20 Received After Agenda Printed April 9, 2019 Item No. 18 April 9, 2019, City Council Item 18 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 18. Amended and Restated Employment Agreements for the City Manager, City Attorney, and City Clerk The staff report mentions the closed sessions at which "the City Council conducted and finalized performance evaluations for the City Attorney and City Clerk." It is a little disturbing the Council is considering modifying the City Manager's compensation without having, apparently, conducted a review (and also strange that the existing contract didn't call for a six-month review). 2. It is also peculiar that the existing contacts are, apparently, being withdrawn and replaced with completely new "restated" ones, rather than simply amending the few passages one assumes are being changed. A redline showing how the existing contracts are being changed would have been helpful. Without that, it is very difficult for the public to know what is new and what old provisions have been deleted. 3. It is also peculiar that the restated contracts for the City Manager and City Clerk have been approved as to form by a "Edward P. Zappia, Outside Counsef' rather than the Council's appointed City Attorney who the public expects to perform that function per City Charter Section 602(e). Although the last clause of Section 602 gives the Council the power to choose other attorneys, I do not recall the selection of Mr. Zappia having been made publicly. 4. It is good to see that the 2% salary increases being proposed for each of these employees are not proposed to be made retroactive. 5. However, a retroactive "merit payment" is being proposed, back to January 1, 2019. That is difficult to reconcile with the California Constitutional prohibition against local governmental entities paying extra compensation for service already rendered (see comments on consent calendar agenda Item 7). These employees are all on evergreen contracts, and their compensation is explicitly not tied to that of any other person group. There was no uncertainty about what their agreed -to compensation was for the period from January 1 to the present. Anything more than that would seem to violate the California Constitution. 6. The three employees are also being offered an instantaneous $2,700 gift, apparently not based on past or future service, and carrying no obligation to remain employed or perform satisfactorily. For this to not be regarded as a gift of public funds, I think that before approving that, the Council is obligated to provide an explanation. Received After Agenda Printed April 9, 2019 Item No. 19 April 9, 2019, City Council Item 19 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 19. Amended and Restated Employment Agreements for Fire Chief and Police Chief Newport Beach's Fire Chief currently has a contract (C-8459-1) paying what seems a generous base salary of $234,344 per year through December 20, 2019. Our Police Chief has an evergreen contract (C-7098-2) paying a base salary that automatically increases by the same percentage as any increases given to the Newport Beach Police Management Association or the increase in the cost of living, whichever is less. 1. It is not clear to me why "At this time, the City Manager wishes to revisit the employment terms, including adjustments to their compensation and benefits" (staff report, page 19-1). 2. It is not clear to me why the proposed new contracts were approved as to form by an outside attorney, and who selected that attorney, when City Charter Section 602(e) requires the City Attorney to "Approve the form of all contracts made by and all bonds given to the City, endorsing his or her approval thereon in writing." 3. It is not clear to me how it can be legal to give the Fire Chief a $18.03 per work day "merit payment" for days already worked from January 1, 2019 through April 12, 2019, when his contract contains no mechanism anticipating the possibility of such merit pay, and when there was no uncertainty in the existing contract about the agreed -to compensation for that period (a similar "merit" provision for the Police Chief appears to match a retroactive salary adjustment offered to the NBPMA). 4. As to giving the Fire and Police Chiefs a cash bonus of $2,700, 1 have the same problem mentioned in connection with agenda Items 7 and 18: no such bonuses were contemplated in these employees' existing publicly -approved contracts, nor do the bonuses carry with them any promise for future service connected to the new contracts. It appears to be a pure gift.