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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed December 14, 2021 Written Comments December 14, 2021, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the November 30, 2021 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in c*�,., eGu underline format. The page numbers refer to Volume 65. Page 203, Item XII, Brenner, bullet 1:" Attended the Corona del Mar Residents Association (CdMRA) meeting..." Page 203, Item XII, Avery, end of bullet 2: "... and the NHHS football team won the CIF Southern Division 6 Champien Championship and will play their next game on December 3, 2021" Page 204, paragraph 3: "Jax Richards urged Council to support Item 10 (Resolution No. 2021-123: Supporting a Ban on New Offshore Oil and Gas Drilling) to protect beaches, marine life, and local economy, minimize climate change, phases phase out fossil fuels, and prometes promote clean energy." Page 210, paragraph 2: "In response to Council Member Dixon's questions, Principal Planner Murillo shared that 1, 581 permits were issued as of today, no additional permits will be allowed afterwarel after the January 13, 2022 deadline, and waitlist requests will be filled through attrition." Page 210, last paragraph: "Mark Mar -Ge S Markos shared his encouragement with the CCC's majority vote and their acknowledgment of the City's uniqueness and existing STL challenges, and requested that Council approve the amendment." [see correspondence] Item 4. Ordinance No. 2021-27: A Code Amendment Related to Tattoo Establishment Development Standards (PA2020-030) As I indicated in written comments submitted when this ordinance was introduced at the Council's November 30 meeting, the very limited set of commercial properties on which tattoo establishments would be allowed plus the requirement for distancing from any residential structure makes this far more restrictive than the Long Beach Ordinance No. ORD -18-0013 on which it is somewhat based. In fact, by my reading it is so restrictive that after two new tattoo establishment permits have been ministerially approved it will prevent any additional tattoo artists from practicing their constitutionally -protected craft in Newport Beach (at least at an establishment of their own). That certainly sounds like impermissible discrimination. One hopes the law will not be challenged, but if it is, I believe this will involve the City in costly and ultimately unwinnable litigation. I believe the ordinance could be made more defensible by including an appeal mechanism, as Subsection 21.45.166.P of the Long Beach code does, providing a clearly-defined path to waive the ordinance -imposed requirements if certain findings can be made. I do not understand why it does not. December 14, 2021, City Council agenda comments - Jim Mosher Page 2 of 4 Item 7. Resolution No. 2021-129: Adopting a Memorandum of Understanding with the Newport Beach Police Association (NBPA) and Associated Salary Schedule As I expressed orally when this item was presented for public review on the November 30 consent calendar, I am concerned about the retroactive nature of these wage and benefit adjustments as well as the one-time $2,000 bonus that appears to be a reward for past performance. The "signing bonus" seem to me in conflict with Article XI of the California Constitution. While Subsection 5(b)(4) of that article gives charter cities, like Newport Beach, nearly unbridled ("plenary") authority to set the compensation of its employees, that power is tempered by the various restrictions found in that article. Among those is Subsection 10(a), which says: "A local government body may not grant extra compensation or extra allowance to a public officer, public employee, or contractor after service has been rendered or a contract has been entered into and performed in whole or in part, or pay a claim under an agreement made without authority of law." The pay and benefit increases retroactive to July 1 suffer from the same constitutional infirmity. I appreciate that the City Attorney has repeatedly assured the Council that bonuses and retroactive pay increases are OK. I believe he cites the California Supreme Court's 5:2 sanction of seemingly -similarly -prohibited one-time bonuses to state employees in Jarvis v. Cory, 28 Cal.3d 562 (1980), and the sanctioning of retroactive government employee wage and benefit increases in the cases it cites, like Goleta Educators Assn. v. Dall'Armi, 68 Cal. App. 3d 830 (1977) and San Joaquin County Employees'Assn., Inc. v. County of San Joaquin, 39 Cal. App.3d 83 (1974). Whether or not that makes the presently -proposed retroactive pay legal can be argued,' but as I attempted to point out to the City Council on November 30, a further concern is that the term of the existing agreement with the NBPA, as defined in Section 1.B.1 (numbered page 1 of the MOU = page 4 of the 53 page PDF), includes a provision that says: "This MOU shall remain in full force and effect through June 30, 2021, and the provisions of this MOU shall continue after the date of expiration of this MOU in the event the parties are meeting and conferring on a successor MOU." This promise to continue working under the terms of the existing MOU makes it extremely problematic to go back and change those terms retroactively. Rather, if the NBPA wanted to work under new terms effective July 1, it seemed incumbent on them to complete negotiation of the new terms by then, which they apparently failed to do. I don't think taxpayers should correct the lapse. ' The cases cited were decided in part on the basis of the employees' salaries being "indefinite" during the period of the negotiations. That does not seem to be the case here given the clear previous agreement about what the terms of employment would be during that period. December 14, 2021, City Council agenda comments - Jim Mosher Page 3 of 4 Moreover, the constitutional prohibition on retroactive pay to government employees and contractors seems like good public policy to me. So, whether or not courts can grant exceptions to it in certain circumstances, it would seem wise to me for the Council to try to follow the clear language of our California Constitution. I don't see a way to reconcile the retroactive salary and benefit increases with Article XI, Subsection 10(a), but I believe the "signing bonus" could be made consistent with it if it were tied to future work, not past. For example, an extra $2,000 could be offered only to current NBPD members who continue to work for the City for another year (or some longer period set by the Council) after the signing. In that way, it would become part of acceptable pre -negotiated compensation for future service, rather than a constitutionally -suspect extra allowance after service has been rendered. Similarly, this MOU and future ones could include provisions offering predetermined bonuses if certain predefined employment goals are met during the future contract period. That would seem consistent with the public policy proclaimed in the California Constitution. But the after -the -fact bonuses and benefits offered here do not seem to be. As to the substance of the agreement, I have not read all of it. Of the few parts I did glance at: 1. 1 had great trouble understanding Subsection 1.13.2 at the top of agenda packet page 7- 12. a. It is under a heading labeled "Term," but it does not seem related to the term of the MOU. b. It begins by saying the MOU prevails over conflicting provisions in the City Charter. Since the Council is bound to honor the Charter, I am unable to guess how it can offer such an assurance. c. It goes on to say the MOU prevails over conflicting provisions in "federal and state statutes, rules and regulations which ... specifically provide that agreements such as this prevail." I am unable to fathom the significance of the MOU prevailing over a regulation that says the MOU prevails. 2. 1 am likewise unable to decipher the agreement as to "release time" that follows on that page and the next. In particular, I am unable to tell guess how the 500 hours granted in Subsection 4 is related to the 500 hour cap mentioned in Subsection 2.a, or if that cap is a "total" as it says it is, or only a total for extra hours granted by the Chief, or a total for "designates" not counting the NBPA President. In short, I have no idea how many release hours the City is providing. 3. 1 similarly found it difficult to decipher the odd way of expressing the offer of extra compensation for extra duties on agenda packet pages 7-24 and 7-25, where it says officers in certain positions will be awarded a certain number of hours per month of extra compensation "paid at $15.00 per hour at time and one half." I can't tell if that's trying to say $15.00 per hour is the time and one half rate or the promise is to pay 1.5x$15.00 = December 14, 2021, City Council agenda comments - Jim Mosher Page 4 of 4 $22.50 for each of the hours. In any event, the offer appears to be for a fixed monthly amount unrelated to the hours actually worked, so why not simply state the extra dollar amount per month being offered, such as 4x1.5x$15.00 = $90? Item 8. Resolution No. 2021-130: Adopting a Memorandum of Understanding with the Newport Beach Firefighters Association (NBFA) and Associated Salary Schedule See comments under the previous item about the proposed $2,000 "signing bonus." Those comments about the bonus apply equally well here, as does the comment about Subsection 1.13.2. Item XVIII. PUBLIC COMMENTS REGARDING REORGANIZATION It seems ironic that as Item 14 at the October 26 meeting, a majority of the Council voted to put on the June primary ballot a measure to "Elect Our Mayor." A primary argument for doing that was that having the same person represent the City as Mayor over extended periods of time allowed that person to build relationships that benefitted the City. Now, just seven weeks later, it appears from the agenda that the Council is poised to do exactly what a majority of its members said would be detrimental to the City: namely, changing the Mayor. It seems important to note that this is not compelled by the City Charter. Indeed, the Charter does not require the Council to change the Mayor, nor does it contain anything preventing the Council from retaining the same person as Mayor throughout their tenure as a Council member. Indeed, existing City Charter Section 404 requires the Council consider changing the Mayor and Mayor Pro Tem only at the first meeting at which a new member is seated — something that normally happens only every two years -- and even then, it does not require or even encourage a change. Instead, as with most deliberative bodies, the choice to change or not change is entirely "at the pleasure" of the full membership. The current practice of changing the Mayor and Mayor Pro Tem yearly is nothing more than a tradition, first adopted as Council Policy A-1 in 1984. 1 might guess it was started as a result of term limits, and the realization that with seven members and at most an eight year term, the offices would have to change yearly to give everyone a chance to serve in each during their time on Council. But even since 1984, the tradition has not always been followed. Philip Maurer served as Mayor from 1984-1986, John Cox from 1986-1988, Phil Sansone from 1990-1992, John Hedges from 1994-1996, and Ed Selich from 2007-2009 (followed by a third, non- consecutive year in 2014-2015). If a majority of the Council now sincerely believes this tradition of changing mayors yearly has been detrimental to the City's influence with outside agencies, I am unable to understand why it would want to continue it, particularly in year when there have been no changes in Council membership. Logically, it should be continuing with its present officers, or choosing new ones with a prospect of serving for multiple years.