HomeMy WebLinkAboutIV - Designation of City Representative - CorrespondenceJuly 23, 2018, Council Special Meeting Agenda Comments
The following comments on items on the Newport Beach City Council agenda are submitted by:
Jim Mosher (limmosher(c�yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229)
Item IV. 1. Designation of City's Representative Under California
Government Code Section 54957.6
Although listed as a "Consent Calendar" item, it is good to see the selection of the City's
representative announced as a possible matter for public discussion.
The listing for this item is not clear as to what Mayor Duffield is being recommended as a
representative for or to, but reading the remainder of the agenda, this appears to have to do
with the City Manager replacement process.
Recent City Council agendas citing Government Code Section 54957.6 have simply named the
City's representatives. As mentioned, seeing the selection process take place in public is good,
but since at a recent Corona del Mar Residents Association meeting the Mayor said he wasn't
really a hiring person, and was leaving the City Manager recruitment up to his colleagues, it is
not clear he would be the best or most forceful representative for negotiations on behalf of the
City with a potential new City Manager.
It might also be noted that the sole purpose of Gov. Code Sec. 54957.6 is to allow closed
session discussion with the representative "regarding the salaries, salary schedules, or
compensation paid in the form of fringe benefits of its represented and unrepresented
employees" — and those are topics which city councils are no longer allowed to discuss, at all, at
special meeting such as the present one (see more about this in my comments on Item V.B,
below).
That is not to say the Council can't designate a representative at this meeting, but I don't think it
can discuss or provide any instruction to him or her regarding compensation to be offered.
In addition, since city manager candidates are not yet employees of the City, it is not clear Gov.
Code Sec. 54957.6 can be used to shield from the public discussion about their potential
compensation, even at a regular meeting.
Item V.A. PUBLIC EMPLOYEE APPOINTMENT (City Manager)
Since the agenda provides no explanation, I am only guessing the purpose of this item is to
interview candidates pursuant to the contract (C-8550-1) with Roberts Consulting Group,
possibly using a list narrowed at the Council's July 10, 2018, closed session.
Based on the contract, I would expect Roberts to "prep" the Council, present the candidates for
interviews, and then guide the Council's discussion of them in a "debriefing" — all outside the
public eye.
July 23, 2018, Council Agenda Comments - Jim Mosher Page 2 of 3
Since the hiring of the City Manager is perhaps the most consequential decision the people ask
our Council to make, and since per City Charter Section 500 it seems intended to have been a
public process in Newport Beach, it is disappointing that the public has been kept so in the dark
about the present process that it doesn't know how many applications were received, how many
will be selected for in-person interviews, or what the Council is looking for in the applicants — let
alone who the applicants are.
This penchant for secrecy and avoidance of public dialog has had many unfortunate
consequences. Among those is that Roberts Consulting, the applicants, and most likely the
current City Council members seem unaware of the Council's current job description and
qualifications for the City Manager position.
At the start of the previous City Manager recruitment, as Item 17 at the City Council's May 26,
2009, meeting, a revised job description and revised qualifications were adopted (which, among
other things, lowered the educational requirements, but raised those for on job experience).
Since the previous Human Resources Director was one of the authors of that document, I
cannot explain why the City Manager mob description on the City's HR website was never
updated, but before interviewing candidates the present City Council members would be
well advised to study the current City Manager job description (as well as the Manager's
powers and duties as specified in City Charter Section 504) and not rely on what is now a 20+
years out-of-date one provided to the applicants in Roberts Consulting's brochure (which was
never publicly reviewed). [note: residing in the City is no longer a City Charter job requirement]
In addition, one can only hope the Council members will be reminded by the City Attorney that
they can only discuss qualifications for office in the interviews, and cannot at any time discuss
potential compensation with the candidates in closed session (see, also, my comments on Item
V.B, below) — as well as not making general decisions about the hiring process.
Finally, if the a majority of the Council agrees on a selection at this meeting, I feel strongly that
is a reportable action that needs to be announced at the conclusion of the meeting, whether or
not subsequent negotiations with the Council's choice fall through.
When our present City Manager was "appointed" on Auqust 18, 2019, it is painfully clear from
the video that the selection had actually happened with some undisclosed vote at some
undisclosed earlier date, and that all that was being discussed on the August 18, 2009, was the
contract — which is a budgetary matter that should have been debated in public.
July 23, 2018, Council Agenda Comments - Jim Mosher Page 3 of 3
Item V.B. CONFERENCE WITH LABOR NEGOTIATOR
Although this item may have been placed on the agenda in good faith, if the Council
proceeds with it, it will be committing a serious violation of the Brown Act.
The intention seems to be to discuss the compensation that could be offered to a City Manager
candidate.
While it is true that Gov. Code Sec. 54957.6 says that "(a) Notwithstanding any other provision
of law, a legislative body of a local agency may hold closed sessions with the local agency's
designated representatives regarding the salaries, salary schedules, or compensation paid in
the form of fringe benefits of its represented and unrepresented employees, and, for
represented employees, any other matter within the statutorily provided scope of
representation," that section was last revised in 1999.
Twelve years later, in 2011, in response to the City of Bell scandal, in which a city council
approved exorbitant salaries and benefits for city executives at little -noticed and special
meetings, the Legislature amended the Brown Act to include a new Gov. Code Sec. 54956(b)
saying: "Notwithstanding any other law, a legislative body shall not call a special meeting
regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits, of
a local agency executive."
This latter "notwithstanding" clearly pre-empts the earlier one, and city councils are no longer
allowed to discuss executive compensation at special meetings.
Assuming it does not want to be seen as the next City of Bell, I trust the Newport Beach City
Council will not proceed with this Brown Act violation.
Even if compensation is discussed in closed session at the regular meeting on July 24, 2018 (as
it possibly legally can be, and as it is currently agendized — Item IV.D), the Council should be
reminded that Gov. Code Sec. 54957.6 additionally says: "Closed sessions held pursuant to this
section shall not include final action on the proposed compensation of one or more
unrepresented employees." In other words, the final vote on compensation has to occur in open
session, but the predictable downside of prior closed session discussion is that the required
public vote will take place without any meaningful debate or opportunity for the closed session
decision to be modified in response to public comment.
In addition, as noted in my comments on Item IV.1, above, there is an open question in my mind
as to whether City Manager candidates are employees, at all (they certainly would not seem to
be), and therefore whether Gov. Code Sec. 54957.6 allows their potential compensation to be
discussed in closed session at any kind of meeting.
Even if the rules allow it, I think the public would be the poorer for not hearing the debate