HomeMy WebLinkAbout10/23/2001 - Study SessionCITY OF NEWPORT BEACH
City Council Minutes
Study Session
October 23, 2001- 4:00 p.m.
ROLL CALL
Present: Heffernan, O'Neil (arrived at 5:00 p.m.), Ridgeway, Glover,
Bromberg, Proctor, Mayor Adams
Absent: None
CURRENT BUSINESS
1. CLARIFICATION OF ITEMS ON THE CONSENT CALENDAR.
Regarding Item No. 7 (Abandoned Vehicle Program), Council Member
Proctor asked if abandoned vehicles are a problem in the City and how many
were located in the City. City Manager Bludau indicated that staff will try
to have that information by tonight's meeting.
Council Member Proctor asked what is involved with Item No. 10 (OCTA
Master Funding Agreement). Public Works Director Badum reported that
the Orange County Transportation Authority (OCTA) reviews all competitive
projects annually. He stated that, as the list changes or as projects are
completed, OCTA requires updates to be attached to the past year's master
agreement. He explained that the amendment is essentially the new list.
Council Member Heffernan noted that the Measure G election will be held in
about a month and asked, if the measure passes, has the money for the
MacArthur Boulevard and Jamboree Road intersection improvements been
taken into consideration. Mr. Badum indicated that the moneys have not
been taken into account in this program since these programs can stand
alone with Measure M Funds. He added that there are opportunities for
adjustments in any fiscal year as time goes on. Council Member Heffernan
noted that the proposed development agreement talks about studying the
possibility of a bi -level interchange at that intersection.
2. DISASTER PREPAREDNESS PLAN PRESENTATION.
Fire Chief Riley utilized a PowerPoint presentation. He reviewed the history
of the Disaster Preparedness Program, stating that the City first got
involved in 1987, but the program was terminated because of budget
reductions. He reported that, in 1996, the State adopted the Standard
Emergency Management Systems (SEMS) Program which required all State,
local, and regional agencies to participate if they wanted to be a part of the
California Mutual Aid System or be eligible for State reimbursement and
grant funding. He stated that the City's Disaster Preparedness Program
was instituted about three years ago and was written and designed to be an
extension of the State of California Disaster Plan. He added that Disaster
Preparedness Coordinator Boston was also hired at this time. He announced
that Ms. Boston and Emergency Medical Services Manager Cleary are in
attendance to answer any questions.
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Chiet Kiley explained that the City is a participant of SEMS under the
County Operational Area (COA) which is the regional coordinator; the State
Office of Emergency Services (SOES) which coordinates all of the State
responses and assists in coordinating the California Mutual Plan; and the
Federal Emergency Management Agency (FEMA) which conducts Federal
disaster response mitigation/funding and can declare disaster areas for
Federal relief. He added that City participation is also important because
this is the consistent method throughout the State for emergency planning
and coordination of local, regional, State, and Federal resources.
Chief Riley reported that Municipal Code Section 2.20 basically provides for
the preparation and implementation of plans; provides services in the event
of an emergency; empowers certain public officials to respond and preserve
public order and safety; and provides for the coordination of emergency
functions with public and private organizations outside the City. He stated
that this section also establishes the Director of Emergency Operations (City
Manager). He explained that the Director can request that Council proclaim
a local emergency or, if Council cannot establish a quorum or be assembled
in a timely fashion, can proclaim an emergency and then request that
Council ratify it thereafter; can request the Governor to declare a State of
Emergency if local resources are inadequate; and can control and direct the
emergency response organization in the event of a disaster. Chief Riley
added that, after *a local emergency is proclaimed, the Director may make
and issue rules and regulations, including establish a curfew, restrict
circulation in certain areas due to public safety, restrict the sale of alcoholic
beverages if it is determined that it is contributing to disorder and can affect
public safety; authorize the purchase of vital supplies and equipment;
require the service of any officer or employee; and authorize the requisition
of personnel or material from any City department. He reported that every
employee, according to Government Code Section 8580, is considered a
disaster services worker, has an obligation to respond, and is protected by
the California Workers' Compensation System.
Chief Riley stated that Council's role is not much different than it is on a
daily basis. He reported that Council may proclaim a local emergency if they
are in session; however, if not in session, they would ratify the local
emergency that was proclaimed by the City Manager within seven days after
it was proclaimed; and they are obligated to terminate the local emergency
within 14 days of the incident. He stated that Council is invited to come to
the Emergency Operations Center (EOC) located at the Police Station;
however, they do not particularly work inside the EOC. He stated that
Council has a separate caucus room to deliberate and discuss policies, and
allows the City response team to continue their work. He indicated that
Council is welcome to be escorted through the EOC to observe the
operations.
In response to Council questions, City Attorney Burnham reported that the
Brown Act is suspended in these circumstances and that Council can discuss
any matter in Closed Session that relates to an emergency.
Chief Riley reported that the Disaster Preparedness Plan was adopted in
1992 and was updated in 1998 to meet the SEMS requirements. He stated
that, since Ms. Boston was hired, all City departments have been actively
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involved in rewriting the Plan. He noted that there will be a disaster drill on
Tuesday, October 30, which will utilize the current Plan and, in November or
December, they will come back to Council to adopt a revised Plan. He stated
that, once Council adopts the Plan, it is sent to the SOES for review to
determine if it is consistent and coordinates with the Standardized
Emergency Response System and the California Emergency Services Act
before it is officially approved as an adopted document.
Council Member Heffernan asked if the State requirements are changing
due to the September 11 attacks. Chief Riley stated that in a lot of the
disaster plan there is a Basic Plan Formulation which is the fundamentals of
how an emergency operation is organized, what the specific hazards may be,
what the individual responsibilities are, and identifies specific threats and
how to respond to them. He likened the specific emergency plans to the
specific plans in the General Plan. He believed that the areas of weapons of
mass destruction and terrorism attacks will be looked at as a result of
September 11. He added that the Basic Plan Formulation establishes
continuity of government, the emergency organization, talks about the EOC,
contains detailed responder checklists, and has department specific annexes
on how each department responds to specific types of incidents.
Chief Riley explained that continuity of government is comprised of stand -by
officers for the governing body, an alternate seat of government, and vital
record preservation. He discussed the lines of succession below the Director
of Emergency Operations and stated that each department is required to
have a line of succession and maintain a phone list for all department
personnel. He reported that the alternate seats of government if City Hall is
unusable are the EOC at 870 Santa Barbara Drive, then the Central
Library, Oasis Senior Center, and the Community Youth Center at 5th Street
and Iris. He explained that vital records are records that are essential to
protect the rights and interest of individuals, conduct emergency response
operations, and reestablish normal governmental functions. He reported
that the City Clerk is charged with this responsibility as the designated
custodian of records.
Chief Riley explained how the organization changes during an emergency.
He stated that an Incident Commander is a single position in the
organization that is responsible for directing all of the policy directives from
Council and the Director of Emergency Operations. He reported that the
response organization is broken into Operations, Planning and Intelligence,
Logistics, and Finance and Administration. He noted that each EOC
position is also required to have succession in the event someone is
unavailable.
Council Member Glover expressed her concern relative to the City sharing
its helicopter with Costa Mesa. City Manager Bludau explained that it is
possible to have two helicopters in use if necessary. He stated that the City
Manager and Police Chief would be the individuals who determine whether
another helicopter is needed. He explained that the helicopters are not on
duty 24 hours a day and that there would be a call -back to get a second crew
if a disaster took place during normal working hours.
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Council Member Glover asked what the City's options would be if the
Peninsula were cutoff. Chief Riley stated that the City does not have
resources available to evacuate a large land mass across water. Mr. Bludau
noted that the City could commandeer anything that is available under
emergency circumstances. Chief Riley noted that not many cities are fully
equipped to handle every emergency and that this is part of the concept of
mutual aid.
Chief Riley stated that Ms. Boston was responsible for three main goals: to
ensure that all the emergency personnel were trained to respond to an
emergency if no one else in the City was ready; to ensure that the remainder
of the City team was trained; and to train and equip citizens to respond to
disasters. He reported that the Citizen Emergency Response Team (CERT)
began about three years ago to learn specific emergency training in order to
help during a disaster. He indicated that the City conducts three or four
classes a year with about 25 people in each class and that the waiting list
has grown to 246 people since September 11.
Chief Riley reported that the City is required to exercise its Disaster
Response Plan at least once a year and that one of the exercises has to be
coordinated in conjunction with COA. He reiterated that the next drill will
be held at 8:30 a.m. on October 30 at the Police Department. He added that
they have ongoing drills inside the departments and out on the field to
exercise specific responses.
Chief Riley stated that the public expects the City to be able to protect life
and property, alert them in advance of a disaster, assess the magnitude of
the emergency, keep them informed, evacuate and relocate them from
dangerous areas, provide temporary shelter and food, rapidly restore
services, and help with recovery services. He reported that people are still
working the recovery system from the Laguna Beach fire in 1993.
Council Member Bromberg indicated that he was the Council Member who
requested this report and asked what Council's role is during an emergency.
Chief Riley explained that the Director of Emergency Operations identifies
how City resources are used and then consults with Council. He reported
that Council's main role is to preside over the policy direction of the
emergency response, similar to Council's daily role of presiding over City
policy. Further, anything that suspends the City's normal operations would
require Council approval. As an example, he stated that Council may decide
to temporarily suspend all fees associated with building permits related to
recovery operations. Mr. Bludau indicated that SEMS is set up to fix
responsibility with the idea that an elected body is not the best body to make
these types of decisions. He stated that people who are trained for disasters
are better equipped and able to make these decisions. He noted that an
emergency can occur in which a majority of Council are not in the City for
days. He reported that he has been trained, as a City Manager, to be the
chief executive and confer with and brief Council.
Mayor Adams asked what happens if something happened to the entire City
Council. City Attorney Burnham indicated that he is not sure and that this
scenario probably is not in the City Charter.
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Mayor Adams suggested that staff contact Laguna Beach to find out what
their council's role was during the 1993 fire emergency.
Council Member Glover stated that it seems logical that Council would
basically be cheerleaders and inform people that the City is being taken care
of by staff. She believed that the City Manager should manage the crisis
because Council does not know many things about the organization and are
not professional firefighters or police officers. She emphasized that this is
really important and that we need to get it right. Chief Riley reported that,
since Ms. Boston and the City Manager have been hired, the whole
organization recognizes the importance of this, especially since a lot of work
has been put into it.
3. EMPLOYEE POLICY MANUAL (JOINT MEETING WITH CIVIL
SERVICE BOARD).
City Manager Bludau reported that the Employee Policy Manual will be
discussed tonight and brought back at the December Council meeting for
approval. He noted that the Manual contains 70 pages and includes a
number of appendices, and stated that it is impossible in a staff report to
detail the key changes made to the Manual.
Human Resource's Director Livingston stated that the Memorandums of
Understanding (MOU) have contained language for many years requesting
the development of an Employee Policy Manual. The City began preparing
the Manual in 1998 and, in September 1999, it went out to all the
associations and the unrepresented employees. She reported that the
purpose of the Manual is to provide a comprehensive source for all City
employees to locate City policies, rules, and procedures. She indicated that
many of the policies are required by State and Federal mandates, while
others have been updated based on the legal mandates that the City faces,
like the Family Medical Leave Act and the Drug and Alcohol Free Workplace
Policy. Further, other policies respond to new issues in the work place, such
as internet/email uses and violence in the workplace. She reported that,
since 1999, the City has met with the associations on numerous occasions
and made hundreds of changes based on their requests relative to the drug
policy and the level of appeals that are brought before the Civil Service
Board.
Council Member Bromberg stated that he is encouraged to see the Manual,
noting that he started working on this in 1995 when he was on the Civil
Service Board prior to being on Council. He stated that the Manual is very
complete and covers just about everything. He expressed the opinion that he
doubts anyone would see a manual this concise in a major corporation.
Council Member Glover stated that she served on the school committee in
Massachusetts for eight years and they lived by the personnel manual. She
expressed her shock that the City did not have a manual when she was first
elected. She commended the City Manager for his work on this.
Mr. Bludau noted that the policies in the Manual do not serve everyone
because there are some provisions in the employee organization MOUs that
may differ from the Manual, and those provisions apply first. However,
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there are a number of policies that will apply to the entire workforce,
regardless if they are temporary or full -time employees. He stated that the
Manual was not created to have something to hold over the employees, but
defines the expectations of the organization to ensure that the process for
handling departments is the same. He noted that the Manual is not a
standardized document; 75% to 80% of the previous Manual was outdated;
and many of the practices that were instituted for years were not in writing.
He reported that the Manual underwent an outside legal review on two
occasions. He emphasized that a lot of people have looked at this to ensure
everything that the City needs is included. Mr. Bludau believed that, if the
Manual were approved, it would be cutting edge because there are a lot of
cities that do not have some of these policies.
Civil Service Board Chairman Foster reported that the City has had a
Manual since 1988 per Resolution No. 88 -13, but it was out of date. He
stated that they have been working on updating it since 1995, going though
seven drafts. He expressed the opinion that the Manual is a fine document,
but the Board has a few concerns. He reminded Council that their role is to
protect the City from exposure to litigation.
Regarding Section 13.4 (Appeal to Civil Service Board), Chairman Foster
reported that they previously objected to this because it restricts the
employee from any appeal rights. He noted that they are also supported by
their counsel. He explained that this section eliminates the employee's
existing Civil Service Board rights since this change would be unsustainable
due to the existing mandates in the Charter and the Municipal Code. He
confirmed that the Board has separate counsel, Jeffrey Freedman. City
Attorney Burnham clarified that Mr. Freedman represents the Civil Service
Board in the context of disciplinary appeals but he does not represent the
Board as general counsel. He stated that Mr. Freedman was consulted in
certain respects relative to the Manual, but the City Attorney's office still
gives the Board its primary legal advice. He noted that his office cannot do
this if they are representing someone like the Police Chief on a disciplinary
matter. Ms. Livingston stated that the intent of the section is so any
suspension would go to appeal, but the language can change from "one day
suspension or more" to "any suspension ". Chairman Foster agreed that the
change is adequate and no longer exposes the City.
In response to Mayor Pro Tem Ridgeway's questions, Mr. Burnham reported
that the only way to modify the Charter is through an election and this is
also true for the Civil Service Ordinance. Chairman Foster noted that the
changes are consistent and a Charter modification is not necessary.
Regarding Section 14.8 (Miscellaneous), Chairman Foster pointed out that,
as a condition for filing a grievance, an employee must first perform any
lawful order given by a supervisor. He believed that this is inconsistent with
conservative risk management. Council Member Glover believed that this is
subjective. Mr. Burnham explained that a grievance is a dispute concerning
the interpretation of the rules and policies pertaining to employment. He
added that the issue of whether the order was reasonable is an appropriate
subject of the grievance. Board Member Carson pointed out that the
wording, "The employee is required to perform the lawful, direct orders of his
supervisor as a condition of filing a grievance" is what raised the issue. He
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asked if an employee can file a grievance if they do not perform the lawful
order even if they thought it was a safety issue. Ms. Livingston stated that
the employee would have to perform the duty and then file a grievance.
Utilizing the Fire or Police Departments as an example, Mr. Burnham stated
that, if a provision is included that is similar to what the Board is
suggesting, there could be a real impact on the day -to -day operations of
those departments. He indicated that people would be contesting whether a
particular order puts them at an unreasonable risk. He expressed the
opinion that, as written, the Manual is consistent with what is done in the
other jurisdictions they looked at and supervisors will know that they could
be disciplined if they put their subordinates in an unreasonable risk for
injury given the job duties.
Mayor Adams asked what will happen to an employee if this is adopted and
an employee does not comply with the lawful, direct order. Mr. Burnham
stated that it is likely that the employee will be subject to discipline for
insubordination and will probably raise the issue of whether the order was
lawful and exposed the employee to unreasonable risk.
Regarding Section 6.5 (Criminal Conduct), Chairman Foster asked if there
was some legal mandate that caused this to be proposed. Mr. Burnham
stated that this is a fairly typical provision. He indicated that he does not
recall whether there is precise case law on the subject, but noted that this
language has been in the Manual for about three years. He stated that the
legal concern is that a felony conviction is not necessarily a predicate for
refusal to hire an applicant unless there is some relationship between that
conviction and the duties. Chairman Foster believed that the language
which allows the City Manager to waive prior felony status has never existed
in any previous Manual. He questioned whether it is wise to permit felons to
be prospective employees or become an employee.
Council Member Proctor stated that he has a hard time seeing the logic in
not allowing the City Manager to look at the situation and see if it is
relevant to the issues of employment no matter what the conviction. He
added that this is potentially discriminatory. Mr. Bludau believed that this
situation is pretty far removed and one that is not going to happen very
often. Further, he agreed with the City Attorney that the City really cannot
exclude someone from applying for a position or from being considered for a
position just because they have a felony that may have no relationship to the
job. He stated that the checks and balance of the City Manager waiving this
right is with the City Council, believing that Council would take him to task
if he used bad judgment.
Council Member Glover noted that a previous City Manager hired someone
with a felony and it cost the City millions of dollars and bad publicity.
Mr. Burnham stated that he is not sure whether that individual was
convicted of a felony or not, but the conviction that occurred in the east coast
would have precluded him from being appointed to any position that handled
money or accounted for funds. He indicated that the individual under this
Manual would not be entitled to hold the position that he held when the
funds were embezzled.
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Board Member Dunlap stated that it should be the City Manager's
prerogative to do this, but the Board's concern is whether this should be
memorialized in the Manual. Mr. Bludau believed that, if the City were to
do this, it needs to be written down for the protection of anyone involved.
Mayor Adams stated that, if this is not in the Manual and a felon is turned
down for a job because of a conviction, the felon could turn to the City and
say this cannot be done because the Manual does not state that a felony can
be used to determine employment eligibility.
In response to Mayor Pro Tem Ridgeway's comment, Mr. Burnham pointed
out that the Manual does not cover elected officials. He agreed with Mayor
Adams that, if this is not written down and an application was denied based
on an unwritten policy, the City has potential legal problems.
Chairman Foster stated that it appears this will have to be done, but
believed that this should solely be the City Manager's discretion. Mayor
Adams asked, if someone has been convicted of a felony that is conflicting
with the duties of the potential job, why Council would ever allow the City
Manager to waive that finding. Mr. Burnham believed that the key in this is
the length of time, pointing out that Council may want the City Manager to
have discretion in certain situations. He used an example in which someone
was convicted of a petty theft when they were 18 years old, is 50 years old
now, applies for a position, and is the best candidate. Mr. Burnham also
agreed with Chairman Foster that the Manual is written in a way that is too
restrictive relative to the City Manager's discretion. He stated that it should
state that, "The City Manager may waive this in his or her sole discretion ".
Council Member Glover believed that this should not be done if the felony
conflicts with their responsibility, regardless if it was done earlier.
Council Member Proctor noted that Council ultimately votes on the Manual
and asked why some of the terms are being negotiated at this time.
Mayor Adams suggested that the Board highlight their concerns to put
Council on notice and to prepare Council for its decision relative to adopting
the Manual.
Regarding Section 5.7.E (Eligibility List — Disqualification), Chairman
Foster stated that the Board feels Section 5.7.E.2 should be deleted and
Section 6.5 should state, "Placement on any eligibility list shall be at the sole
discretion of the City Manager who may waive the provisions of this section
based upon substantial evidence of mitigating circumstances ". He expressed
the opinion that this puts the responsibility where it belongs, with the City
Manager. Mr. Bludau recommended that language be added to have the
City Manager advise the City Council prior to making such a determination.
Chairman Foster stated that everyone has sufficient faith in the City
Manager's ability to do his job and use his discretion.
Mr. Bludau reported that they are proposing to bring the Manual back to
Council for final approval at the December meeting and that he and Ms.
Livingston will address the Civil Service Board at its November meeting. He
pointed out that they have made a number of the Board's recommended
changes, he is opposed to some of the recommended changes, and some of the
changes have been agreed upon today. Mayor Adams requested that the
Board's correspondence be attached to the staff report, including how they
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were addressed by staff. Chairman Foster added that they acknowledge the
fact that substantially all of their prior comments have been incorporated
and due consideration has been given to every comment and observation.
Regarding Section 3.12 (Outside Employment), Mayor Adams stated that his
business does not allow any outside jobs that are closely related to the
profession because of the liability exposure to the firm. He indicated that he
does not see this issue listed in Section 3.12.13 as a reason to disapprove
outside work. He added that he does not think it is good policy to
accommodate moonlighting and that the employee's energy should be
working for the City and not worrying about what they do once they are
home from work. Mayor Adams clarified that he believes that teaching and
providing professional services are two different things. Mayor Pro Tem
Ridgeway asked how part -time employees would be handled. He stated that
there should be some latitude for this but suggested that the list of findings
should include liability exposure to the City. Mr. Burnham stated that they
tried to write this into Section 3.12.B.3 and pointed out that Section 3.12.13.2
discusses the concept of a conflict between the employee's City duties and
their outside employment. He stated that this policy is one of the few that
was in the old personnel resolution and that they tried to minimize the
changes to the written policy to minimize the impact on the employees. He
noted that there are many Fire and Police employees that have secondary
employment, and- that a change in this policy would probably result in
opposition from their associations. Council Member Glover stated that the
Mayor would be shocked to know how many employees do have other jobs.
She believed that this is unfortunate, especially since the City provides such
good employment opportunity.
Mayor Adams believed that the disciplinary action for someone that does
outside work without obtaining approval from the supervisor should be very
strong. Further, there should be a policy that discourages this. He stated
that the City is paying its employees a good wage and expects that their
work energies go to the City and not someone else. Vice Chairperson
Godfrey stated that the annual review in Section 3.12.1) covers the majority
of this in that the employer or division head needs to be aware of
employment status. She reiterated that this is identical to what the City has
had in the past.
Mr. Burnham reported that a violation of this rule would subject the
employee to discipline. Further, he believed that the section can contain a
provision that states, "The City expects that the employee's primary
employment is with the City ". Mayor Adams agreed with this language.
Mayor Pro Tem Ridgeway used the MIS Division as an example of people
who probably have outside employment that is directly related to their
experience and background. Mr. Bludau added that schedules have changed
with the 9/80 and 4/10 plans where employees have numerous days that they
are not at work. Mayor Adams stated that everyone has the right to earn a
living within reason; however, his concerns primarily deal with liability and
requested language that indicates that it is a matter of policy that this is
something we do not encourage. Mr. Burnham confirmed that disclosure is
included in the Manual.
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Board Member Dunlap stated that, unless there is a change made to
Appendix B (Drug and Alcohol Policy), officers are in violation of this policy
every time they take evidence to court. He suggested adding language to the
policy that exempts lawful possession while on official duty. Council
Member Proctor believed that there are Penal Code sections that cover this
and there is preemption. Mr. Burnham believed that this should be
addressed in the Manual since the reason for the Manual is to let people
know what the rules are.
Chairman Foster provided Mr. Bludau with a current list of the points that
were discussed and recommended ways of resolving the issues.
Rich Thomas, Newport Beach Firefighters Association, stated that it is his
understanding that the Association is not in agreement yet on all the issues.
Ms. Livingston reported that Mr. Macy gave her a couple of additional items
during their last meeting.
Regarding outside employment, Mr. Thomas stated that he initially did not
have a problem with Section 3.12 because he could not think of anyone in the
Association who is employed outside the City; however, he pointed out that
numerous employees teach classes.
Mayor Adams, on behalf of Council, extended his gratitude to the Civil
Service Board for their work on the Manual.
PUBLIC COMMENTS — None.
— 6:00 p.m.
The agenda for the Study Session was posted on October 17, 2001, at
2:00 p.m. on the City Hall Bulletin Board located outside of the City of
Newport Beach Administration Building.
City Clerk
O�A&c -.P, LB�rw>`�
Recording Secretary
Mayor
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