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HomeMy WebLinkAbout16 - Sculpture Exhibition in Civic Center Park — Phase III - CorrespondenceRecieved After Agenda Printed September 26, 2017 Item No. 16 Subject: FW: Council Agenda Item #16 - City Council Meeting of September 26, 2017 -----Original Message ----- From: Susan Hori [mailto:susankhori@gmail.com] Sent: Saturday, September 23, 2017 12:35 PM To: Muldoon, Kevin <kmuldoon@newportbeachca.gov>; Duffield, Duffy <dduffield@newportbeachca.gov>; Dixon, Diane <ddixon@newportbeachca.gov>; Peotter, Scott <speotter@newportbeachca.gov>; Avery, Brad <bavery@newportbeachca.gov>; Herdman, Jeff <jherd man@newportbeachca.gov>; O'Neill, William <woneill@newportbeachca.gov> Cc: Richard Stein <rstein@artsoc.org>; Kiff, Dave <DKiff@newportbeachca.gov> Subject: Council Agenda Item #16 - City Council Meeting of September 26, 2017 Honorable Mayor Muldoon and Councilmembers: I am writing to express my support for the Sculpture Exhibition in Civic Center Park. The sculptures do so much to enhance our Civic Center, and provide a wonderful opportunity for families to enjoy art in an open space setting. In addition, the program has the added benefit of attracting visitors to our community. It is especially terrific that the works included on display represent a wide variety of themes and styles, delighting children and prompting fascinating discussions about art. They also have proven to be excellent decorative elements that help animate this unique park. For purposes of full disclosure, in addition to being a long-time resident, I am also a member of the Board of Arts Orange County, the City's contractor for this project, and a member of the Dean's Council for the Claire Trevor School of the Arts at UCI. In short, I am a proud supporter of arts and arts education because of what it brings to our community, and how it enriches and broadens our life experiences and especially those of our children. I have had a chance to view the works being recommended to Council for installation next month, and think that they continue to fulfill the aims of this program well. In fact, like many residents I participated in the public voting to help select one of the pieces for display and thought that the addition of a "people's choice" selection helped generate greater interest in the sculptures and this project. ` I hope that you will vote to approve them. Sincerely, Susan K. Hori Received After Agenda Printed September 26, 2017 Item No. 16 September 26, 2017, Council Agenda Item 16 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 16. Sculpture Exhibition in Civic Center Park - Phase III I generally support the City Arts Commission's recommendations for Phase III of the rotating Sculpture Exhibition, and the slightly improved process by which the selections were made (although the on-line public voting would, in my opinion, have gone better, and been more useful, if members of the public had been allowed to rate each piece, rather than being thrown the daunting task of attempting to pick a single "favorite" out of some 50 possibilities seen separately on different screens). Despite that general support, having followed this closely I was deeply disturbed to discover a completely unexpected parenthetical note near the top of staff report page 16-2: "(Later, in April 2017, the Council directed that nine sculptures be placed in the Park, along with the Ronald Reagan statue, which was formerly in Bonita Canyon Sports Park. The Reagan statue is now in place near the corner of Avocado and San Miguel Drive)." First, what staff calls the "Ronald Reagan statue" is more than a statue. The statue is in fact part of the privately -funded Ronald Reagan Centennial Memorial, publicly dedicated at Bonita Canyon Sports Park by U.S. Congressman Dana Rohrbacher and other dignitaries on October 9, 2011, and subsequently (due to a still unsolved November 6, 2011, attempted theft) guarded from vandals 24/7 by a lighted video surveillance system. The whole of this has, apparently, been moved (including, should one guess, the custom surveillance system?) to a location chosen without public input or Council direction. Second, and more importantly, although the City Council may, in April 2017, without proper public process, have directed staff to place the Memorial in the Civic Center Park, it definitely did not direct staff to complete the relocation without further Council direction because the question of exact location was explicitly left open for future public debate and a decision by the Council. Third, I was personally assured by the City Manager that he had no authority to move the Memorial without a separate contract for that purpose, approved by the Council. And I was personally assured by the City Attorney that any perception of a Brown Act violation in April 2017 would be rectified by the ample opportunities for public comment on the relocation that would occur at later properly noticed meetings as the relocation proposal moved through the City Arts Commission (and possibly PB&R) and back to the Council for final action. To hear the move of the Reagan Memorial announced as an accomplished fact, without any of the promised intermediate steps and public debate having taken place, is shocking. September 26, 2017, Council Agenda Item 16 Comments - Jim Mosher Page 2 of 10 To recap the facts of this matter as I understand them: On April 11, 2017, following then Council Policy A-6 as a non -discussion item, Mayor Kevin Muldoon asked that a vote be placed on a future Council agenda to place on a still later agenda a vote on relocating the Reagan Memorial to the Civic Center. The April 11 agenda itself already announced as Item 20 a potential decision on the award of a contract to Arts OC to oversee a rotating exhibit of 10 temporary sculptures in the Civic Center Park. When that latter item came up, and after the close of public comment on it, Council member Scott Peotter suggested the Mayor's idea could be combined with the noticed proposal and made a motion which, according to the video transcript (starting at 4:04:27) the relevant part of was "1'd like to move that we approve the contract as presented tonight with a couple of notes, one is.. is that we get President Reagan out of the cul-de-sac and the Arts Commission comes back with a recommended location when they do the presentation for the art and locations for our approval." That motion, which the public had no opportunity to comment on, and which the official minutes inexplicably record as "approve a contract with Arts Orange County for project management of Phase 111 of the Sculpture Exhibition in Civic Center Park for a total amount not to exceed $105,73 1. 00, and authorize the Mayor and City Clerk to sign the agreement; as part of the scope of services, part of the planning should consider a recommendation for location of the President Reagan sculpture," carried 5:1:1 with Councilman Jeff Herdman voting "no," and Councilwoman Diane Dixon absent. When the contract with Arts OC (City contract C-8463-1) was ultimately signed, it did indeed reduce the number of sculptures in Phase III from ten to nine, but it contained no responsibilities and no mention whatsoever of anything having to do with the Reagan Memorial or its relocation. 2. Seemingly realizing the Council's error in taking action without opportunity for public comment, the April 25, 2017, City Council agenda contained a non -discussion "MATTERS WHICH COUNCIL MEMBERS HAVE ASKED TO BE PLACED ON A FUTURE AGENDA" item listed as "Relocation of the Statue Honoring Ronald Reagan from Bonita Canyon Sports Park to Civic Center Park (Muldoon)." However, when the item came up, and despite the official minutes subsequently signed by the Mayor saying "The City Council unanimously concurred to place the matter on a future agenda," Mayor Muldoon declared the matter was "moot" because, as he had asserted at the afternoon study session, it was his belief that the Council "had subject matter, notice and jurisdiction over statues in the sculpture garden" (video at 1:24:23), and was therefore free to act on the Reagan Memorial on April 11 without any meaningful or explicit public notice it would be doing so. In my view, such action on April 11, without meaningful prior public notice, was in flagrant violation of California's open meeting law, the Brown Act. In any event, despite what the minutes say, it appeared no vote was taken on this matter on April 25, and discussion of relocating the Reagan Memorial has never been noticed at any subsequent City Council meeting. September 26, 2017, Council Agenda Item 16 Comments - Jim Mosher Page 3 of 10 3. On May 11, 2017, seeing no further noticed discussion and no other corrective action being taken by the City, I hand delivered a "Cure or Correct" letter to the City Council via the City Clerk, the text of which is attached. Such a letter opens the City to the possibility of litigation if the Council does not satisfactorily respond within 30 days. 4. On May 11, 2017, the City Arts Commission happened to be holding a meeting the agenda of which listed "Placement of Ronald Regan Statue" as Item 5. 1 supplied a copy of my "Cure or Correct" letter to the Commissioners for their information, and for that reason, or some other, the minutes indicate the Arts Commission tabled Item 5 without public input or discussion (the minutes also indicate that under "PUBLIC COMMENTS ON NON -AGENDA ITEMS," at the end of the meeting, I opined that under their City Charter mandate, the placement issue before the Commission legitimately involved not just if there was a suitable place for the Memorial in the Civic Center Park, but whether it should be moved at all). 5. On May 19, 2017, seeing nothing about the "Cure or Correct" letter on the Council's May 23 agenda, I sent an email to the Mayor, City Manager and City Attorney imploring them to add an item. I received no response. 6. On May 25, 2017, 1 was interviewed by Council members Dixon, Herdman and O'Neil regarding my application for a position on the Visit Newport Beach Executive Committee. I asked if they were aware of the June 10 deadline for responding to the "Cure or Correct" letter. I was told they had been advised by the City Attorney not to speak to me about the matter. 7. On June 5, 2017, 1 asked to speak to the City Manager and City Attorney, and subsequently, on June 6, spoke to the City Attorney for about half an hour. The City Attorney assured me he felt the Brown Act violation on April 11, if there had been one, was harmless because there would be plenty of opportunity for public comment on the issue as the matter moved through the City Arts Commission and back to the City Council, where the ultimate decision might be to not move the Memorial at all. 8. The City Manager was purportedly unable to participate in the June 6 meeting, but I found him in the Bay 2E lobby afterward and he assured me Council policy precluded him from moving the Memorial on his own, and that it would require a separate contract approved by the Council, which would likely come back to them on the night they were considering the selection of art for the rotating exhibit — possibly as a separate agenda item, or possibly wrapped into one. The policy in question is 1_9, which at that time required the Arts Commission to review any relocation of public art and "make the appropriate recommendation for modification to the City Council' (August 8, 2017, amendments to Council Policy 1-9 removed the requirement for Council approval, but still requires Arts Commission review — and one might argue that, independent of Council policy, City Charter Sections 709 and 712 separately require a role for both the City Arts Commission and the City's Parks, Beaches and Recreation Commission). 9. Since exposure to Brown Act litigation rests solely on a decision of the City Council, I was profoundly disappointed by the Mayor and staff's refusal to put the matter to the Council for a decision. Assuming staff transmitted the "Cure or Correct" letter to the full Council at all, staff's method of divining a response without a noticed public meeting, whatever it may September 26, 2017, Council Agenda Item 16 Comments - Jim Mosher Page 4 of 10 have been, would itself appear to be putting the Council in the position of further violating the Brown. Nonetheless, based on the promises of ample public input into the future Reagan Memorial process and decision, and not wanting to subject City taxpayers to unnecessary expense, I decided not to file the lawsuit made possible by the lack of Council response. 10. Nothing about the Reagan Memorial was noticed on the June 8, 2017, City Arts Commission agenda, although the minutes reveal some non -noticed discussion took place, including me informing the Commission of my probable decision not to pursue the Brown Act litigation and that under the contract signed by Arts OC and the Mayor no activities at all regarding the Memorial were included in Scope of Services. 11. At its July 13, 2017, meeting, the City Arts Commission created a Ronald Reagan Statue Ad Hoc Subcommittee consisting of Chair Chang, Vice Chair Greer and Commissioner Divine. 12. In a non -noticed action at its August 10, 2017, meeting, the Commission, possibly unhappy with the Council's decision two days earlier to withhold the Policy 1-13 money from them, or possibly for some totally different reason, voted unanimously to disband the Subcommittee without having heard any report from them. We come then, to today. To the best of my knowledge both the City Council and the City Arts Commission are deliberative bodies that can act only by vote at a noticed public meeting. At no time I am aware of has the Council waived the City policy requiring Arts Commission review of relocations of public art, and indeed, in its only official pronouncement on the matter (on April 11, 2017), it told the public it would itself be debating at a future meeting a recommendation regarding a new location for the Reagan Memorial. And at no time has the City Arts Commission debated a recommendation. Yet now staff tells us a location has been selected with no public process at all, and the move has been completed. This indicates something is fundamentally non -transparent about local government in Newport Beach. And the resulting legacy of unkept promises and lack of even token deference to public opinion is particularly disturbing in view of the intense, and still largely unresolved, public controversy that surfaced in 2011 -- when a more public process was followed -- surrounding whether the Newport Beach should have a City -endorsed Reagan Memorial at all, let alone where it should be, as detailed in the attachment. Finally, I gather that to justify the present action an urban myth is being created to the effect that the City is simply restoring the Reagan Memorial to its originally intended location. I am unable to find anything in the public record to support that myth. At the time of the Reagan centennial, completion of the Civic Center was still two years off, and as best I can tell the mainstream proponents of the Memorial never lobbied for installation either there or at the existing City Hall. Instead, per the minutes of the Council's February 22, 2011, meeting, the original recommendation was to place the Memorial in Castaways Park — a location that was subsequently deemed unsuitable due to the discovery of restrictions on use of the land. September 26, 2017, Council Agenda Item 16 Comments - Jim Mosher Page 5 of 10 Attachment: Text of "Cure or Correct" letter submitted to City Council via City Clerk on May 11, 2017 September 26, 2017, Council Agenda Item 16 Comments - Jim Mosher Page 6 of 10 2210 Private Road Newport Beach, CA. 92660 May 11, 2017 City Council of the City of Newport Beach 100 Civic Center Drive Newport Beach, CA. 92660 Re: Demand to Cure or Correct Brown Act violations (Gov. Code Sec. 54960.1) Dear Members of the Newport Beach City Council, It is with the deepest and most sincere regret that I feel compelled to put my city through the time, trouble and expense of having to respond to a formal demand to correct a violation of the Brown Act. Nonetheless, certain actions taken by the Council on April 11, 2017, were so obviously inconsistent with the state's open meeting laws, and the public's expectations under those laws, that they simply cannot be allowed to stand. Those of us who followed Newport Beach City government at the time will know that the City's decision to create (and locate) a Reagan Centennial Memorial was a highly contentious and extremely divisive issue resolved in 2011. The City's 2013 decision to initiate and maintain a rotating exhibition of contemporary sculpture in the (then new) Civic Center Park has, since 2013, proved similarly, although significantly less, contentious and divisive. To the best of my knowledge, prior to April 11, 2017, no connection between the two had ever been drawn. The Alleged Violations At the City Council's April 11, 2017, meeting, after the close of public comment on what appeared to be a routine housekeeping matter listed on the agenda as Item "20. Contract with Arts Orange County to Manage Phase III of the Sculpture Exhibition in Civic Center Park," and without any prior announcement that he might do so, Council member Scott Peotter made a motion adding to the staff recommendation noticed on the agenda completely unexpected orders to (1) move the City's Ronald Reagan Centennial Memorial from its current location in Bonita Canyon Sports Park and (2) place various constraints on the funding and operation of Phase IV of the rotating sculpture exhibition (even though the agenda clearly noticed only a contract for Phase III). The Council proceeded to discuss and voted to approve those matters with no prior notice to the public that they were going to be discussed and with no opportunity for the public to comment on them. Those actions were clearly inconsistent with California Government Code Subsection 54954.2(a)(3), generally prohibiting a local legislative body from discussing or taking action on matters not noticed on the published agenda, and Section 54954.3, requiring an opportunity for public comment on all items of interest before or during their consideration by a local legislative body. September 26, 2017, Council Agenda Item 16 Comments - Jim Mosher Page 7 of 10 Pursuant to Government Code Subsection 54960.1(b), this letter is my written demand that the City Council cure or correct the violations of the Brown Act described above. In addition to the Brown Act problems, I would like to note that in Section 712 of the Newport Beach City Charter the people have created and empowered a City Arts Commission, separate from the City Council, to advise the Council on its decisions regarding "all matters pertaining to artistic, aesthetic and cultural aspects of the City." Although it wasn't on the April 11 agenda, the City Council had arguably received prior recommendations from the Commission regarding Phase IV of the rotating sculpture exhibit. By contrast, the City Council's April 11 action on the Reagan matter, taken in the complete absence of any recommendation or advice from the City Arts Commission, appears to me to have exceeded the powers granted to the Council under the Charter. The Suggested Cure Since the Council's questionable actions on April 11, 2017, have so far had no concrete consequences, if the Council wishes to continue with them, an extremely simple cure is available that would, in my view, make them compliant with both the Brown Act and the City Charter: 1. Recognize that the actions cited above were taken on April 11 without adequate public notice and opportunity for comment, and hence were invalid, or at the very least need to be revisited. 2. Agendize a properly noticed item to consider, with public input, the question of the Council asking the City Arts Commission to hold meetings to formulate a recommendation regarding the future of the Ronald Reagan Centennial Memorial. The expectation would then be that the Council might act, based on the Commission's recommendation, at a future noticed meeting of its own. 3. Agendize, when and as necessary, a separate properly noticed item to consider the Council's expectations for Phase IV of the rotating sculpture exhibit, ideally informed by a clear recommendation from the City Arts Commission regarding that Phase. It might be noted that since a Brown Act "cure or correct" demand carries with it an implied threat of future litigation, the Council would probably be justified in discussing its response to this suggestion in closed session, and that pursuant to Subsection 54954.2(f) a voluntary decision to correct the prior action is not legally regarded as an admission on the part of the City that a violation of the Brown Act occurred. Hence, reconsidering the above actions as outlined above is not only the right thing to do from the perspective of governmental openness and respect for the public and the public's established institutions, but it allows the City and the Council to save face by saying they are "acting out of an abundance of caution" without any admission of error. The alternative is expensive, unfortunate and likely unwinnable. Below my signature I have provided some additional information which may shed more light on the violations and why I am so concerned about them. Again, I regret having to submit this letter, but I look forward to the City Council's written response pursuant to California Government Code Subsection 54960.1(c)(2). Yours respectfully, September 26, 2017, Council Agenda Item 16 Comments - Jim Mosher Page 8 of 10 James M. Mosher jimmosher(c�yahoo.com (949) 548-6229 Background of the Violations On January 11, 2011, as supplemental Item S27 on the consent calendar, the City Council acted, with little public awareness and no discussion, to "Adopt Resolution No. 2011-10 relating to accepting donations for a statue or similar work honoring the birth centennial (February 6, 2011) of former President Ronald Reagan." On February 10, 2011, as part of the process set in motion by Resolution No. 2011-10, the City Arts Commission held a meeting in the Central Library Friends Room, reportedly attended by more than 100 people — an extreme all-time record for the Arts Commission — at which nearly 30 spoke, essentially all expressing concerns about the Council's January 11 resolution. On February 22, 2011, as agenda Item 14 at a packed meeting, the Council met to "Give staff direction on how to proceed regarding the Ronald Reagan Memorial." Sixteen members of the public spoke. After considerable debate, the Council voted to contract with an artist for a statue approved to be placed in Castaways Park but with further advice from the City Arts Commission and the Parks, Beaches and Recreation Commission. After a further public process that is not particularly well documented, but included the revelation of land use restrictions at Castaways Park, an artist was selected and the Ronald Reagan Centennial Memorial was dedicated, with considerable fanfare, at the end of Ford Road in Bonita Canyon Sports Park on October 9, 2011. On July 23, 2013, as agenda Item 15, the City Council voted to terminate a previous Memorandum of Understanding with the Orange County Museum of Art for populating the Civic Center with art and instead inaugurate and approve Phases I and II of a City -run rotating exhibit of competitively -selected temporary sculpture in the Civic Center Park. Much of the work and organization was to be performed by a contract consultant. There was not then, and never has been, any connection stated between the Ronald Reagan Centennial Memorial, or any piece of existing sculpture in the city, and the rotating exhibition. On August 9, 2016, as agenda Item 19, the City Council unanimously approved a recommendation from the City Arts Commission for Phases III and IV of the rotating sculpture exhibit, which included an estimated budget of $125,000.00 per phase, each phase to be managed by an outside project coordinator. On April 6, 2017, the City published the agenda for the City Council's April 11, 2017, meeting. In that agenda the following item was noticed: "20. Contract with Arts Orange County to Manage Phase III of the Sculpture Exhibition in Civic Center Park a) Determine that the action is exempt from the California Environmental Quality Act CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because it will not result in a physical change to the environment, directly or indirectly; b) Approve September 26, 2017, Council Agenda Item 16 Comments - Jim Mosher Page 9 of 10 Budget Amendment No. 17BA-030 appropriating $155,731.00 from the Visit Newport Beach Arts Contributions and expensing to 01060603-811008 for the project management contract and to fund artist honorariums for Phase III; and c) Approve a contract with Arts Orange County for project management of Phase I II of the Sculpture Exhibition in Civic Center Park for a total amount not to exceed $105,731.00, and authorize the Mayor and City Clerk to sign the agreement." This announcement manifestly did not suggest, even remotely, that the item would in any way be related to a revisiting of the Council's previous, highly contentious decisions about the Ronald Reagan Centennial Memorial or that it would have anything to do with anything other than the contract for management of Phase III of the rotating exhibit. Indeed, when Item XII,"City Council Announcements (Non -Discussion Item)," came up on the agenda prior to Item 10, the Mayor suggested that the presence on the agenda of an item about a contract for sculpture management made him hope that at some future meeting the Council might want to take up the question of moving the Reagan Memorial to the Civic Center Sculpture Garden. There seems little merit to the City Attorney's subsequent assertion that a clause in the proposed project coordinator's contract's "Scope of Services," calling for the contractor to "Be responsible for overseeing and managing the planning, selection, and installation of public art for the Sculpture Exhibit" for Phase III gave the Council license to discuss and act on Phase IV and the Reagan Memorial. First, the Brown Act requires the public to be notified of the topics to be discussed in the agenda, not in a staff report, much less in the Scope of Services of a contract attached to a staff report. Second, the contract project coordinator does not actually select art. Instead, he is hired only to oversee and manage the competitive public process by which the art is to be selected. Having the Council pre -select the art is completely contrary to the process that had been recommended by the City Arts Commission and previously approved by the Council, and hence was completely unexpected. Third, even if there had been an expectation that the Council would discuss the selection of art on April 11, the Reagan Memorial is so out of character with the nature, purpose and intent of the rotating sculpture exhibition that a possible decision to choose it as a permanent "exhibit" would have needed separate notice. In short, the Council's vote to move the Reagan Memorial and make it a permanent, non- rotating part of the previously approved temporary, rotating exhibit was as unexpected on April 11 as if the Council had announced that night that it was going to vote on moving the Lincoln Memorial to Newport Beach. And the fact that the location of the Reagan Memorial remains a matter of significant public interest was confirmed by letters to the editor in the local media following the Council's April 11 meeting, and by at least a dozen people writing to or showing up at the Council's April 25, 2017, meeting to comment on an agenda item listed as a vote regarding putting a discussion of "Relocation of the Statue Honoring Ronald Reagan from Bonita Canyon Sports Park to Civic Center Park" on a future agenda. Two of them spoke, even though the Mayor made it clear that no action on that item would take place because the decision had already been made, and public comment would be allowed only after the fact. There also seems no merit to the City Attorney's possible future assertions that the alleged Brown Act and Charter violations were harmless and will be cured anyway, in the course of time, because the City Arts Commission's recommendation for where the Reagan Memorial September 26, 2017, Council Agenda Item 16 Comments - Jim Mosher Page 10 of 10 should go in the Sculpture Exhibit will come back to the Council for final action, and the public can comment on the matter at that time, or before the Arts Commission. The fact is that if the Council's unnoticed action on April 11 is allowed to stand, the City Arts Commission will be constrained to make a recommendation only as to where the Reagan Memorial should go in the Civic Center Park. In a proper public process, the Commission would have been expected to make a recommendation, with public input, as whether the Memorial should be moved at all, and if so, where in the city, with the possibility of much better and more publicly acceptable result. To me, this is not about technical violations of the Brown Act and City Charter, but rather about the need for the Council to act responsibly, respecting the public's right to be heard on matters of public interest before decisions are made about them, not after. Adding to the confusion of the present process, the signed official minutes of the Council's April 25, 2017, meeting (posted online on May 10), with regard to the discussion of "Relocation of the Statue Honoring Ronald Reagan from Bonita Canyon Sports Park to Civic Center Park," say "The City Council unanimously concurred to place the matter on a future agenda." I very much hope, and will be very happy if, that happens. But that is not what I heard when the Council voted on the minutes on May 9. Hence, regrettably, the need for this letter.