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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. Volume 54 - Page 523 INDEX Disaster Preparedness Plan (41) City of Newport Beach Study Session Minutes October 23, 2001 INDEX 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 Volume 54 - Page 524 City of Newport Beach Study Session Minutes October 23, 2001 INDEX 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. Volume 54 - Page 525 City of Newport Beach Study Session Minutes October 23, 2001 INDEX _ 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. Volume 54 - Page 526 City of Newport Beach Study Session Minutes October 23, 2001 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, Volume 54 - Page 527 INDEX Employee Policy Manual (66) City of Newport Beach Study Session Minutes October 23, 2001 INDEX 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 Volume 54 - Page 528 City of Newport Beach Study Session Minutes October 23, 2001 INDEX 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. Volume 54 - Page 529 City of Newport Beach Study Session Minutes October 23, 2001 INDEX 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 Volume 54 - Page 530 City of Newport Beach Study Session Minutes October 23, 2001 INDEX 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. Volume 54 - Page 531 City of Newport Beach Study Session Minutes October 23, 2001 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 Volume 54 - Page 532 INDEX