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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed December 13, 2022 Written Comments December 13, 2022, 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 Vlll. MATTERS WHICH COUNCIL MEMBERS HAVE ASKED TO BE PLACED ON A FUTURE AGENDA (NON -DISCUSSION ITEM) The matter being considered, for a second time, is asking staff to prepare a resolution declaring the Council stands in solidarity with the people of Iran and our local Iranian -American population protesting actions by the government of Iran. I appreciate the outpouring of sentiment regarding this reflected in the draft November 29 minutes, and I believe standing in solidarity with the impacted local population gives it a more proper flavor than the previous version rejected on November 15. 1 also believe Council members should be able to put items on the agenda without requiring concurrence by additional members. Yet we have the system we have, and it seems to me all decisions directing staff to do anything should be made by the newly elected Council, not the outgoing one. As a result, I believe this, and all other voting items other than approval of the November 29 minutes and certification of the election results belong later in the agenda, after the new Council has been seated. It might be noted that this failure to trust the newly -elected representatives with the City's business has not always been the case. As recently as 2008 (see agenda from December 9, 2008), it was the custom for the outgoing Council to simply certify the election results and turn over all business (even the approval of the pending minutes) to the new one. That is arguably the only practice consistent with City Charter Section 400, which holds, in part, that "The term of each City Council member shall commence on the date of the City Council meeting, following his or her election, at which the council receives the certification of election results from the City Clerk." Since this year the Council will be receiving the results on December 13, the new members' terms clearly start on December 13, and by implication the terms of the old ones they replaced ended on December 12. So those termed -out members are present only as caretakers until the new members have been sworn in, and they are no longer empowered to perform City business. In fact, in the days before the County Registrar had 30 days to examine ballots and certify totals, when the City performed its own municipal elections, the City Clerk was able to certify the results in less than a week, and as soon as that task was accomplished, a special meeting was held to accept the tally and seat the people's newly -chosen representatives, who conducted all City business subsequent to that. See, for example, minutes of April 20, 1976, meeting (acknowledging results of April 13, 1976, election) or minutes of April 15, 1980, meeting (acknowledging results of April 8, 1980, election). Had that historical pattern been followed in the present case, according to Item 12 on the present agenda, the County Registrar certified the 2022 City election results on Friday, December 13, 2022, City Council agenda comments - Jim Mosher Page 2 of 7 December 2, and a special meeting would have been held early the next week to install the newly -elected members, who would have conducted all the business on the December 13 agenda. Item IX. PUBLIC COMMENTS ON CONSENT CALENDAR See comment under Item XVIII, above. I believe these consent calendar items, with the possible exception of the minutes of November 29, should be considered only after the correct currently - elected Council members have been seated. Item 1. Minutes for the November 29, 2022 City Council Meeting The passages shown in italics below are from the draft minutes with suggested corrections shown in c��u underline format. The page numbers refer to Volume 65. Page 441, Item SS2, paragraph 1: "Out of an abundance of caution, Mayor Pro Tem Blom recused himself due to real property interest conflicts for property located at 2902 West Coast Highway." Comment: The video shows that after Mayor Muldoon said he believed there would be a recusal on the item, Mayor Pro Tern Blom left the room without saying anything, followed by City Attorney Harp saying "that's based on real property interest." There was no mention of "2902 West Coast Highway." This practice of vaguely -explained recusals, which seems common at Newport Beach Council meetings, suggests the City is not familiar with the requirements for informing the public about potential conflicts of interest. Those requirements are set out quite clearly starting at the bottom of page 18 of the FPPC's May 2022 publication entitled An Overview of Conflicts of Interest Under the Political Reform Act, and it would seem timely for all Council members to review them. First, it appears the identification of the potential conflict is required to come from the conflicted officer, not some other official. Second, for a real property interest, the oral identification is required to include "the property's address, assessor's number, or identification that the property is the official's personal residence" — something that didn't happen in this case, and appears only after -the - fact in the minutes. There are similar detailed requirements for announcing other potential conflicts. For example, when Mayor Muldoon says he has a possible business interest related to telecom, his recusal is required to include "the name of the business, a general description of its activities, and any position held by the official." I don't recall the public ever being given that degree of specificity, in the minutes, or more importantly at the meeting where it is required. Page 444, Item XIV, first text paragraph: "In response to Council Member Brenner's question, Mayor Muldoon indicated that his intention is for the City to retain governing December 13, 2022, City Council agenda comments - Jim Mosher Page 3 of 7 authority, allow other entities to review and consult on the plan, and ask staff to draft something for Council consideration at the next Council meeting.." Comment: This is the next Council meeting, and I see nothing related to this on it, which was regard to authorizing a future agenda item about a memorandum of understanding for private planning of the future of the Airport Area. The wording of the item made it unclear if the Council was voting to authorize City staff to prepare a memorandum of understanding for consideration at a future meeting, or merely to bring back the question of whether it should prepare an MOU at all. Rightly or wrongly, the public speakers assumed the wording of the item meant that if it passed, staff would prepare a draft MOU. Designating the vote as a non -discussion item did not help. The proposed draft minutes do not clarify if what staff would be drafting would be a possible MOU or only an agenda item discussing the pros and cons of entering into one. Page 444, last paragraph: "Regarding Item 18 (Professional Services Agreement with Townsend Public Affairs, Inc. for State & Local Government Relations & Advocacy Services), Mayor Muldoon clarified that the one purpose of the contract is to pursue advocacy for rehabilitation facility enforcement and regulation." [See video: Mayor Muldoon said this was one reason, not the exclusive one. The contract has many other purposes, including information and advocacy regarding John Wayne Airport.] Page 450, paragraph 1: "Kusha Alagband expressed disappointment in Council's vote at the November 15, 2022 Council meeting against the condemnation of the Islamic Republic of Iran, noted other cities have passed similar the resolutions, noted this is a global human rights issue, and asked Council to expedite a new resolution." Page 450, paragraph 8: "Rose read a poem by Saadi written in 1833, discussed the events happening in Iran, requested Council's help, stated she no longer can contact her family since the regime disconnected internet service, and asked that Council approve the resolution condemning the Iranian government." [The video shows the minutes are correct. However, the date seems doubtful since according to Wikipedia the Persian poet Saadi Shirazi "died in 1291 or 1292" and the deeply moving poem Rose read, Bani Adam, appears in a book written in 1258.] Item 4. Resolution No. 2022-93: Approval of Revised City Council Policy F-14 It is unfortunate Newport Beach doesn't post draft minutes of its bodies' proceedings until shortly before that bodies' next meeting, but my recollection of the November 10, 2022, Finance Committee meeting is that its review of these proposed policy changes was extremely cursory. Although not mentioned in the present report, I am pleased to see that under "Background" on page 1 of Attachment B, staff has made some changes to the redline seen by the Finance Committee in response to a comment I made. In particular, it appears they have re -read City Charter Section 421 and agree the policy needs the insertion of the (i), (ii) and (iii) to resolve an December 13, 2022, City Council agenda comments - Jim Mosher Page 4 of 7 ambiguity introduced by Measure EE in 2012 as to who needs to sign City contracts: namely, in a continuation of the policy set by the original Charter, there are three distinct signatures required, not one. I have not read or considered the other proposed changes, but hope the Council will before approving them. Item 6. Award of Maintenance and Repair Service Agreement to Global Power Group, Inc. for City Generators I am unable to find any explanation in the report of why staff is recommending "a three-year term with a total contract compensation amount of $300,000" if the annual cost bid, as listed in the table on page 6-2, was $51,000, which appears to be confirmed by the Schedule of Billing Rates on page 6-32 ("subject to a 3% increase annually, starting Year 2"). Is that bid and billing for only part of the work expected? Item 10. Approval of Amendment No. One to Professional Services Agreement with Anchor QEA, LLC for Regional General Permit (RGP- 54) Sediment Suitability Characterization If I understand the report correctly, Anchor QEA needs to repeat sediment collection and testing which failed due to the organisms used to test the sediment dying even when there was no contamination in the sample being tested. It is surprising to me the report does not mention this problem, and the steps needed to correct it, having been shared with the City's Water Quality/Coastal Tidelands Committee, since they are the many body charged with keeping an eye on harbor water quality. The report also does not indicate if the cost of the repeat testing will be passed on to the users of the RGP-54 permit. Item 11. Confirmation of Appointments to the Ad Hoc Citizens' Residential Crime and Burglary Advisory Committee The staff report indicates when this unscheduled vacancy was first advertised, but not how many days applications were accepted for, or how many were received. Item 12. Resolution No. 2022-94: Certification of General Municipal Election Results The final "Whereas" of the proposed resolution (staff report page 12-3) refers to "the County Election Department." I know Orange County has a Registrar of Voters who has a staff supporting him. I was unaware it had anything called a "County Election Department." December 13, 2022, City Council agenda comments - Jim Mosher Page 5 of 7 As to the excerpt from the full Statement of Votes which is part of Exhibit 2 to the resolution (starting on staff report page 12-9), it is interesting to note from page 12-31 that the current Council member from District 6, Joy Brenner, won (by a small margin) in the district in which she resides, even though she lost citywide. Since Newport Beach, with its 1954/1955 City Charter, instituted its system of candidates running from districts but voted on citywide, it is difficult to ascertain how many times a candidate has won their home district while losing citywide (or put another way, a Council member has been elected without winning in their home district). That is because only since 2006 has the OC Registrar broken down the statement of votes by Newport Beach councilmanic districts. Prior to that, including when the City ran its own elections, they were reported only by precinct and it is difficult, if it was ever possible, to associate those precincts with Newport Beach districts. Currently, the precinct level results are relegated to a tab -delimited file called "Plain -text extract for data analysis (media.zip)" which includes the number of write-in votes (not reported in the certified statement of votes), but is not very user friendly. Fortunately, it is supplemented by an Interactive Mapping Tool, the primary link to which is found on the Detailed Data and Reports page. That displays and visualizes the precinct -level results for this and past elections. Not evident from any of that, is the fact that since Newport Beach instituted its system of a seven -member Council elected from districts, this will be only the third time that an election has resulted in a majority of the Council being new to office. The previous two times were in 1978 and 2014. The other interesting thing that emerges from study the history of Newport Beach elections is that under our Charter the sequencing of district elections was supposed to be set by which candidates were elected with the most votes in the original election on March 15, 1955, when all seven districts were up for grabs. As a result of that election, Districts 1, 5 and 6 were designated as the ones up for election the following year, and Districts 2, 3, 4 and 7 two years after that, with that cycle of District numbers to repeat every four years, forever. That pattern was followed, as the Charter requires, up until 1970, when, for reasons I have been unable to trace, there seems have been a swapping of the District designations between the members elected from Districts 1 and 2, and between the members elected from Districts 6 and 7. So since then, to not alter those members' terms we have had candidates from Districts 2, 5 and 7 running in Presidential election years, and from Districts 1, 3, 4, 6 in "mid-term" years, such as the present one. This does not seem consistent with the Charter requirement that the District numbers selected in 1955 determine the election sequence, calling into question why since 1970 we have been electing representatives from the Districts we do. Go figure... Item 13. Administration of Oath of Office The oath referred to in the agenda announcement will presumably be that prescribed by Article XX, Sec. 3 of the California Constitution. Or more precisely, just the first paragraph of that. December 13, 2022, City Council agenda comments - Jim Mosher Page 6 of 7 The lengthy remaining paragraphs forswearing association with suspected subversive groups had been added by Proposition 6 in 1952. According to the UC Hastings College of Law Ballot Measure Database, it passed overwhelmingly despite arguments on both sides. The new language, adopted at the height of the McCarthy era, replaced the simple oath provisions, mirroring those of the US Constitution, that had survived, unchanged until then, from Article X1, Sec. 3 of our state's original 1849 Constitution. Although by Article XX, Sec. 3 of our present state Constitution has never been updated to reflect it, in Vogel v. County of Los Angeles, 68 Cal.2d 18 (1967) our state Supreme Court ruled much of the new language inconsistent with the US Constitution, and as a result it is no longer administered. However, we are left with the first paragraph from 1952's Proposition 6. 1 personally much prefer the simplicity of the pre-1952 language, which was stated as follows: "Members of the Legislature, and all officers, executive and judicial, except such inferior officers as may be by law exempted, shall, before they enter on the duties of their respective officers, take and subscribe the following oath or affirmation: 7 do solemnly swear (or affirm, as the case may be,) that I will support the Constitution of the United States, and the Constitution of the State of California, and that I will faithfully discharge the duties of the office of , according to the best of my ability. " And no other oath, declaration, or test, shall be required as a qualification for any office or public trust." What seems often overlooked is the last sentence, which survives despite the new language appearing to apply it to "every officer and employee of the State, including the University of California, every county, city, city and county, district, and authority, including any department, division, bureau, board, commission, agency, or instrumentality of any of the foregoing." I have frequently noticed various additional oaths being required, for example to serve or as Grand Juror, or likely a police officer. Such requirements seem inconsistent with the provision that no other qualifying test can be required. Item 14. Election of Mayor As many will recall, this June, with Measure B, the current Council asked Newport Beach voters to consider a directly elected mayor proposal. I seem to recall one reason offered for placing it on the ballot was it would avoid the pre -meeting backroom deal making and vote solicitation, in violation of the Brown Act, that many suspect the present system encourages. Since Measure B did not pass, Section 404 of our City Charter continues to require the Council to reconsider its selection of Mayor each time results of a Council election are certified. But it does not preclude the Council from doing so more frequently, as it has recommended (but not always followed) since 1984 through Council Policy A-1. December 13, 2022, City Council agenda comments - Jim Mosher Page 7 of 7 If backroom deal making remains a concern, I see nothing that would preclude adding to the policy a recommendation that, as many other cities do, the new annual selection be based on seniority, with the position of mayor being offered to the longest -serving member who has not previously held the position, and likewise for the mayor pro tem position, with ties in starting date of service being resolved by number of votes received or winning margin. Under this system, which would not be mandatory if the Council chose to deviate from it, I believe Noah Blom would be offered the position of Mayor for 2023, and Robyn Grant the position of Mayor Pro Tem. Item 13. Resolution No. 2022-95: Setting City Council Regular Meeting Dates for Calendar Year 2023 For most of Newport Beach's history, it's Council met a minimum of twice each month, including December. This became a requirement with approval of the City Charter in 1954. Although the public accepted Charter amendments in 2012 ("Measure EE") that, among many other things, a//owjust two meetings in August and September, it does not require that. Rather than planning to hold only one meeting in August and December, it would seem better to schedule two meetings in those months and decide whether to cancel one of them closer to the event. The reasons for meeting only once in August are especially obscure and certainly bear reexamination. As to meeting only once in December, the second meeting often came close to Christmas, but for many years that was not considered a problem because the City Hall did not shut down forcing employees to use their vacation time between Christmas and New Years (another questionable practice not followed by most cities). Now, not only does the Council hold only one meeting, but it seems to have become tradition to conduct no "real" business even at that one meeting, and instead spend the night celebrating the newly -selected Mayor. That leaves an entire month with no substantial business being conducted, which is not normal and not the way most other cities operate. I also think the starting time of 4:00 p.m. precludes attendance at the meetings by many working people. And although not evident from the resolution, the practice in recent years has been to schedule a "study session" at 4:00 p.m., which has resulted in the starting time of the regular meeting becoming quite unpredictable and rarely what is announced on the agenda. I recommend going back to the practice of many years of starting the regular meetings at a predictable after -dinner hour of 7:00 or 7:30 p.m. And holding the study sessions, when one is necessary, at a similar after -dinner hour on alternate weeks.