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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed February 11, 2025 Written Comments February 11, 2025, City Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosheranyahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item Vll. MATTERS WHICH COUNCILMEMBERS HAVE ASKED TO BE PLACED ON A FUTURE AGENDA The matter presented here is development of a proposal to restructure the City's Aviation Committee. While that committee might well benefit from a restructuring, it should be noted that the root cause of its current dysfunction is not its current structure, but a failure to work within it. That includes not filling vacancies and having last met on July 15, 2024. Item 1. Minutes for the January 28, 2025 City Council Meeting The passage shown in italics below is from the draft minutes with a suggested correction shown in shikeottt underline format. The page number refers to Volume 66. Page 251, Item XIV, paragraph 3: "At the request of Councilmember Grant, City Attorney Harp stated that as to Item 8�s-peg case law allows charter cities to do things that general law cities cannot, so concern about a gift of public funds does not apply." [See video. City Attorney Harp did not say that approval of Item 8 could not be regarded as a gift of public funds. He only said that the prohibition against making gifts of public funds did not apply to charter cities.' The difference in meaning is substantial.] ' The case law alluded to by City Attorney Harp, holding that charter cities are not bound by the California Constitutional provision prohibiting the state Legislature from authorizing gifts of public funds (Article XVI. Sec. 6), presumably includes Los Angeles Gas & Elec. Corp. v. City of Los Angeles, 188 Cal. 307 (1922) and Tevis v. City & County of San Francisco, 43 Cal. 2d 190 (1954). That exemption from a restraint on the Legislature does not, however, automatically exempt charter cities from the Article XI, Sec. 10(a) prohibition against "a local government body" providing extra compensation for work already performed. It can be debated whether the Article XI, Sec.-5(a) power of charter cities to, with respect to municipal affairs, "supersede all laws inconsistent" with their charter is so sweeping as to allow it to evade even a Constitutional restriction that says it applies to all local agencies. But even if they could, neither our Charter nor our Municipal Code appear to contain any provision overriding Article XI, Sec. 10(a). And absent such a provision, the Council would not seem free to do something the state Constitution forbids, namely amending the CR&R contract to provide extra compensation for work already provided. Instead, that extra payment should have been regarded and identified as a voluntary gift outside the contract. In my own comments, I mentioned a California Supreme Court opinion that, for public employment contracts, created a limited exception to the prohibition against retroactive adjustments to compensation. The case in question is Jarvis v. Cory, 28 Cal.3d 562 (1980) which permitted adjustments in compensation retroactive to the date on which salary negotiations began or a prior employment agreement expired. But the reasoning was very specific to public employees and would not apply to other contracts, such as that with CR&R (if it did, Article XI, Sec. 10(a) would be meaningless). In summary, there seems (shockingly) to be no law preventing the City of Newport Beach government from making gifts of the public's funds. But there is a law, indeed a Constitutional mandate, preventing it from retroactively changing the compensation provisions of a municipal contract. And the voters would seem to have a right to expect their officials to respect that law. February 11, 2025, City Council agenda comments - Jim Mosher Page 2 of 4 Item 4. East Coast Highway and San Miguel Drive Pavement Rehabilitation and Evening Canyon Road Drainage Improvements — Notice of Completion for Contract No. 8925-2 (23R11) The Location Maps do not appear to include the "pavement rehabilitation work at the intersections of Jamboree Road at Bristol Street North and South" added by a change order. Item 11. Financial Statement Audit Results and Related Communication for the Fiscal Year Ended June 30, 2024 As I commented to the Finance Committee at their meeting on January 23rd, the statement near the top of page 11-17 that Newport Beach has a "21-square-mile harbor" seems suspect. The City's Demographics and Statistics page indicates the "Harbor Waters" comrise just 844 acres or 1.3 square miles. As I also pointed out, in the organization chart on page 11-31, "Building & Fire Code of Appeals" should be "Building & Fire Board of Appeals" and the lines suggesting the City Clerk and City Attorney report to the City Manager (rather than to the City Council) seem a little misleading. Item 12. Acceptance of the National Highway Traffic Safety Administration (NHTSA) Illegal Passing of Stopped School Buses -High Visibility Enforcement Pilot Project On agenda packet page 12-5, under "Reporting," Attachment B says "A deployment report template is attached." But it is not. Seeing what the City is being asked to report would clarify what the City is expected to do in fulfillment of the grant. Item 13. Ordinance No. 2025-1: Granting Non -Exclusive Commercial Solid Waste Franchise Agreements The proposed ordinance refers in at least four places (pages 13-76 through 13-79) to an attached Exhibit "A," but no attachment is included. I assume it is the same as the attachment to the preceding resolution. Will it be attached to ordinance when it is archived? Also, at the end of Section 1 (page 13-76) the ordinance refers to "The Franchisees' continuing obligations pursuant to Section 23(J) (Continuing Obligations) of the 2017 Franchise Agreement." Do these new franchisees have continuing obligations under an agreement they were not a party to? Item 14. Resolution No. 2025-8: Amending the Schedule of Rents, Fines and Fees to Provide a Pass -Through of Credit Card Transaction Fee Charged by Third Parties Directly to the Consumer Not fully understanding how credit card transactions work, I am unable to understand what is being proposed or what the language to be adopted (on page 14-9) means. February 11, 2025, City Council agenda comments - Jim Mosher Page 3 of 4 I assume that when the City charges someone, say, $100, and the customer offers to pay the $100 by credit card, the City receives less than $100 due to processing fees charged to the City. Since Item 14 on April 23, 2024, staff has been authorized to correct for this by adding a 2.85% surcharge to the bill. In other words, if the bill was $100, the customer offering to pay by credit card would be asked to pay $102.85. The present staff report indicates the transactions are not all the same, and the actual fee may be more or less than 2.85% (although it doesn't say how much more or less it might be). I suspect staff is seeking permission to adjust the surcharge to reflect the actual transaction charges expected in a particular credit call billing (assuming the City knows in advance what the charge will be?), and this will be reflected in the amount the customer is asked to pay (as in the example above, but with a number different from 2.85%) However, the proposed language I see on page 14-9 says "2.85%, or pass -through, as applicable" with a footnote reading "When the City is charged for processing the credit card transaction, the City's fee to the customer Is 2.85% to offset the cost to the City. When the customer is charged directly to process the transaction, the fee is a pass through directly to the customer." Both the meaning and intent of this is baffling to me. Doesn't the staff report indicate the City is always charged a processing fee, so the surcharge would always be 2.85% regardless of varying fees? How does this address the problem stated in the staff report of varying fees? And what does the second sentence mean? Under what circumstances is the customer, rather than the City, charged "to process the transaction"? How is that charge "passed through"? Why would the City be charging the customer a "convenience fee" equal to a cost or penalty the customer is privately paying their creditor? And what happens if there are charges borne by both the City and the customer? Which sentence prevails. If the intent is that "a convenience fee will be added to the bill so that the net payment received by the City (after correcting for third -party processing charges) will equal the amount owed," it would seem best to simply say that. Even then, if every credit card customer may be charged a different convenience fee percentage, will any of them know in advance what their percentage is? Or do they have to try to pay by credit card to discover what their bill will be? I am also puzzled why, under "Noticing" on page 14-3, entities such as Southern California Edison, Southern California Gas Company, and AT&T were singled out for mailed notices. While I appreciate that many residents of Newport Beach make private payments to them by credit card, this action would not seem relevant to that. Do those utilities make payments to the City by credit card? February 11, 2025, City Council agenda comments - Jim Mosher Page 4 of 4 Finally, under "Fiscal Impact," the report says "In fiscal year 2024, the City incurred approximately $2.1 million in credit card processing fees." Has this number been corrected to reflect any recovery resulting from the 2.85% surcharge authorized on April 23, 2024? Should the present action not be taken, what would be the net annual processing cost to the City if just the fixed 2.85% surcharge on credit card payments were fully implemented? Item 15. Resolution No. 2025-9: Approving a Request to Waive City Council Policy L-2, Driveway Approaches, and a Coastal Development Permit for a Duplex at 3601 Lake Avenue Page 15-9: In the second "Whereas," in two places, "garage -serving" should be two words and not hyphenated. Page 15-9: In the fifth "Whereas," the word "beach" in "Newport Beach" should be capitalized. Page 15-10: Section 2 should, like Section 1, say that the approval "is supported by the facts and findings in Exhibit "A"' (as well as subject to the conditions in Exhibit B). Page 15-11: In Section 6, the statement that "This resolution shall take effect immediately upon its adoption" does not seem accurate, at least with respect to the validity of the CDP. This property appears to be the California Coastal Commission's appeal area, and as such, the CDP does not become effective until the City has reported its action to the CCC and the deadline for filing an appeal to them has expired. Page 15-12: Fact A.1.c was presumably intended to say "the highest ridge is less than 29 feet from the established grade," since Table 1 on page 15-4 says the highest point is at 28' 8". Page 15-15: Fact C.3 appears to be redundant, as it simply repeats the last part of the "Fact 5" referenced in the preceding Fact C.2. Item 16. Employment Agreement for City of Newport Beach Police Chief The staff report refers to NBMC Section 2.24.100 (Selection of Fire and Police Chiefs), which says, among other things, that "The City Manager shall appoint a member, or members, of the Board to serve on a qualifications appraisal panel within the qualifications appraisal process" (where "Board" refers to the City's Civil Service Board). As best I can tell, neither the staff report nor the Agreement indicate if this happened, and if it did, which CSB members served on the qualifications appraisal panel. The report also does not explain why staff is proposing a delayed effective date of February 22. Also, the Exhibit A (Police Chief Job Description) provided on page 16-20 is dated more than two years ago. Are the salary ranges printed on it still current?