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HomeMy WebLinkAbout00 - Closed Session - CorrespondenceRECEIVED AFTER AGENDA PRINTED JUNE 26, 2018 CLOSED SESSION WRITTEN COMMENTS June 26, 2018, City Council Closed Session Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(a�yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item IV. CLOSED SESSION - After Study Session - Council Chambers Conference Room Adequacy of Closed Session Announcements As I tried to point out in oral comments at the Council's May 22, 2018, meeting, the boilerplate closed session announcements regarding "anticipated litigation," which in the present agenda are being used for Items IV.B and IV.C, do not conform to City Council Policy A-1. Policy A-1 requires, on page 12, that "The closed session agenda shall strictly conform to the format specified in the Brown Act." Those formats are provided in Gov. Code Sec. 54954.5. The two possible formats for privately discussing anticipated litigation (litigation which does not yet have a court case number connected with it) allowed by Subsection 54954.5(c) are: and: CONFERENCE WITH LEGAL COUNSEL—ANTICIPATED LITIGATION Significant exposure to litigation pursuant to paragraph (2) or (3) of subdivision (d) of Section 54956.9: (Specify number of potential cases) CONFERENCE WITH LEGAL COUNSEL—ANTICIPATED LITIGATION Initiation of litigation pursuant to paragraph (4) of subdivision (d) of Section 54956.9: (Specify number of potential cases) In both cases, Subsection 54954.5(c) points out further information may be needed to explain to the public the specific "existing facts and circumstances" that cause the potential for litigation to be anticipated, which have fall into one of the categories detailed in Subsection 54956.9(e). The present Item IV.0 , saying only "CONFERENCE WITH LEGAL COUNSEL _ANTICIPATED LITIGATION (Government Code § 54956.9(d)(2) and § 54956.9(e)(1)): 1 matter" clearly lacks the required written explanation to the public that it involves "significant exposure to litigation." The obscure reference to Subsection 54956.9(e)(1) forces the few readers who know how to do so to discover this means the matter involves "Facts and circumstances that might result in litigation against the local agency but which the local agency believes are not yet known to a potential plaintiff or plaintiffs." June 26, 2018, Council Closed Session Comments - Jim Mosher Page 2 of 4 This may be compared to the closed session announcement for Item 11.13 from June 8, 2010, when then -Policy A-6 was perhaps taken more conscientiously. That announcement did not require the reader to seek anything more: Conference with Legal Counsel - Anticipated Litigation - Exposure to Litigation Government Code § 54956.9(b): Two matters: Potential exposure to litigation on two matters based upon facts and circumstances that might result in litigation against the City but which are not yet known to a potential plaintiff or plaintiffs and disclosure of the facts or circumstances would jeopardize the City's ability to resolve the matter. And for comparison with the uninformative Item IV.B on the present agenda, which says only "CONFERENCE WITH LEGAL COUNSEL ANTICIPATED LITIGATION - INITIATION OF LITIGATION (Government Code § 54956.9(d)(4): 1 matter," consider this similar announcement for Item II.A from June 22, 2010: Conference with Legal Counsel - Anticipated Litigation - Initiation of Litigation Government Code § 54956.9(c)): One matter: Potential initiation of litigation against Back Bay Court Property Company, a California Limited Partnership, for condemnation of right-of- way needed for the Jamboree Road Widening Project. It is unclear why the circumstances that might lead to the City's initiation of litigation (as is alleged for the current Item IV.B) are no longer being publicly disclosed with similarly clarity. And as for the present Item IV.C, litigation anticipated against the City based on circumstances unknown to the potential plaintiffs is something one would think is a very rare circumstance, and one which in my opinion is much overused to justify closed session discussions in Newport Beach. Additionally, I would like to point out that while the Brown Act allows closed sessions to permit the courtroom strategies to be used in actual or potential lawsuits to be kept confidential, I do not believe it was ever intended to give city councils license to privately discuss the city's interpretations of its laws (including, for example, the theoretical possibility of it suing or being sued over something). Quite the opposite, a clear public understanding of the City's interpretation of its laws seems to me to be essential to the successful functioning of our form of government. Specific Comments 1. Item IV.A: CONFERENCE WITH LABOR NEGOTIATORS a. The agenda lists City Manager Dave Kiff as one of the negotiators for the City with whom the Council will be talking in closed session. Curiously, Mr. Kiff is not among those who were named as City negotiators when the new MOU with the Newport Beach Police Association (Item 5 on the present agenda) was presented to the Council as Item 12 at the June 12, 2018, meeting. Do different staff members serve as negotiators with different employee bargaining units? June 26, 2018, Council Closed Session Comments - Jim Mosher Page 3 of 4 b. An extremely minor point, but the word "Employee" in "Newport Beach Professional and Technical Employee Association" should be "Employees" (plural). 2. Items IV.B and IV.C: CONFERENCE WITH LEGAL COUNSEL- ANTICIPATED LITIGATION See above. It is impossible to comment on these items without knowing the circumstances that gave rise to the need for the closed session, and therefore the issues the City Attorney intends to discuss with the Council. 3. Item IV.D: PUBLIC EMPLOYEE APPOINTMENT (City Manager) a. In connection with the Council's last meeting, on June 12, 2018, 1 submitted written comments lamenting the absence, on that agenda, of any noticed opportunity for the Council to discuss the City Manager recruitment, which I continue to feel is one of the most important decisions facing the Council. b. It is, therefore, good to see the present agenda includes an opportunity for the Council to discuss the appointment, and refreshing to see the announcement, in an effort to explain the public what may be privately discussed, goes a little beyond the bare minimum arguably allowed by the Brown Act, including an assurance the Council will not be making an appointment. c. That said, the present notice is not as informative as it might be. Indeed, the explanation in the agenda that "The City Council will consider all matters authorized by Government Code Section 54957(b)(1) related to the appointment of a new City Manager" really says very little. That is because, for those who hunt it down, Section 54957(b)(1) says only "this chapter [the Brown Act] 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." It does not make clear what is authorized for discussion under this heading. Given California's Constitutional commitment to open meetings (per Proposition 59 in 2004), 1 continue to think the "appointment" exception is intended to allow only the private discussion of the qualifications of individual, identifiable candidates; and is not intended to allow closed door discussion of the recruitment process or the general qualities the Council is looking for in an employee (including such things as the recruitment brochure). iii. Unfortunately, it is impossible to tell if what the City Attorney believes is authorized by Section 54957(b)(1) matches that view or not. iv. But given that, I fail to see why the City Attorney's interpretation of this exception, and other laws, should not be a matter of public knowledge. June 26, 2018, Council Closed Session Comments - Jim Mosher Page 4 of 4 d. As on June 12, 1 think it is important to remind the City Council of the City Charter Section 500 duty placed on it, in considering a City Manager appointment, to "screen all qualified applicants and other qualified persons known by the Council to be available." I believe that means the Council can receive recommendations and guidance from outside recruiters, but it cannot leave the screening to them. The people have said the Council itself, and only the Council, must do that. ii. Given that duty, and given the public's need to be able to verify that duty is being performed, I believe the Council owes the public some basic information about the current status of the process, such as: how many applications it has screened, what the nature of the applicants was and where it stands in the winnowing.