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HomeMy WebLinkAbout0 - Public Comments"RECEIVE AFTER A 'ENDA PRINTED:" dC m s C/-/0 /3 September 10, 2013 City Council Agenda Item Comments The following comments on items on the Newport Beach City Council agenda are submitted by Jim Mosher ( jimmosher,,@,�hoo.com ), 2210 Private Road, Newport Beach 92660 (949 -548 -6229) Item 1. Minutes for the August 13, 2013 Study Session and Regular Meeting. In addition to the usual problem of not always conveying with complete clarity the substance of what was said, this set of draft minutes contains a number of what to my ears seem odd grammatical constructions (such as "overviewed" and "highlighted on "), as well as occasional odd uses of capital letters. Recognizing that whether any of these are outright errors, or not, is a matter of taste, I suspect a majority of the Council would regard the minutes as "good enough" as is. Item 4. Adoption of Ordinance Pertaining To Targeted Residential Picketing Although I appreciate the problem this wishes to solve, I continue to think the proposed language is overly broad and would be unenforceable in many, if not most, situations because the expressive activities ostensibly outlawed are strongly protected by the First Amendment. It could have imposed much more reasonable, and less arbitrary, content neutral restrictions such as limiting hours, number of persons or loudness. As it is, if enforced literally, for example arresting a lone "picketer" quietly displaying a sign on a summer afternoon, it has the potential to embroil the City in unnecessary and unwinnable litigation. Despite the City Attorney's assurances, I don't think this is grounded in well established law. In the case I cited in oral testimony at the August 13 City Council meeting -- Klein v. San Diego Cnty., 463 F.3d 1029 (9th Cir. 2006) — the federal appeals court said a 300 foot rule would be unreasonable and unconstitutional in many circumstances. In Footnote 5 they are particularly critical of the San Jose language on which our City Attorney relies, and feel the California appeals court that upheld it in 1995 wrongly decided that case and the United States Supreme Court opinion in Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994), which itself struck down a lower court's imposition of a 300 foot buffer as too large. "Contrary to the California court's characterization, the United States Supreme Court has called public issue picketing on streets and sidewalks "an exercise of... basic constitutional rights in their most pristine and classic form." While ... targeted picketing is inherently intrusive on residential privacy, it did not suggest that, where the two clash, the right to residential privacy necessarily trumps the rights of picketers.... That is to say, residential picketing is not the black sheep of the First Amendment family. " I would notthink it would give Newport Beach lawmakers comfort to know that in 2011 Riverside County relaxed their anti - picketing ordinance to reduce a 30 foot buffer to 3 feet, for reasons that are not entirely clear but may have included the Sheriff's inability to justify anything more than 3 feet being necessary to control crowds. September 10, 2013 Council agenda item comments - Jim Mosher Page 2 of 4 Item 17. Amendment to Title 19, Subdivision Code, Revising the Required Findings for Lot Mergers (PA2013 -172) Section 3.3 (handwritten page 8) contains inadvertently repeated text: "3. Finding No. 5 should to be revised to sd7a sld k,* rev+sea, to provide more direction to the reviewing authority." Item 20. Residential Solid Waste Service Proposals I feel strongly that the Council should open discussion, but defer any further action on this item until the public has greater confidence that the options available to the City have been thoroughly explored in a fair and open manner. I have several concerns about the process to date: 1. Brown Act Issue a. The City Council has a three - member standing Finance Committee, tasked, among other things, with making recommendations to the full Council regarding proposals for reducing the cost of City services. it currently consists on Council members Henn, Curry and Petros. b. The Finance Committee previously met with Laith Ezzet of HF &H Consultants to discuss the Residential Solid Waste RFP prior to its finalization by the full Council. c. At its July 22, 2013 meeting, the City Manager asked the Finance Committee members if they could be available for a special meeting at 3:00 pm on August 29 to review the results of the RFP. d. The August 29 meeting was not held. Instead, without any noticed public meeting, a quorum of the Finance Committee reached a consensus and published their conclusions regarding the proposals in the on -line version of the City's official newspaper, the Daily Pilot, on September 6, less than 24 hours after public release of the staff report on the City website. e. At least in my view, the formulation of a consensus position by a majority of the Finance Committee outside of a public meeting is a clear violation of the Brown Act, and the expression of strong views in print prior to any meaningful public discussion is of questionable ethics. f. I think it is reasonable to ask if those who violated the Brown Act should be asked to recuse themselves from further involvement in the public's decision.. 2. Public Records Act Issue a. The California Supreme Court case of Michaelis, Montanan & Johnson v. Superior Court (2006) 38 Cal.4;h 1065 established the principal that under California law, although proposals to supply services are normally public records, during staffs negotiation of a potential contract, the other proposals received can September 10, 2013 Council agenda item comments - Jim Mosher Page 3 of 4 be held confidential if the disclosure of their details of would jeopardizethe public's bargaining position. b. In response to an earlier inquiry as to why the proposals received by the City on June 28 had not been made publidy available, I received the following emailed response from a City staffer on July 31, 2013 at 8:49 am: "The RFPprocess continues as follow up clarifications are going back to the respondents. When this step is complete the complete submit talks will be shared publicly at the August Finance Committee which I believe you attend." c. In response to a follow -up inquiry last Friday, September 6, City staff continued to seem uncertain as to whether the proposals were public records. d. At least in my view, the release of the consultant's summary of the proposals on September 5 has publidy disclosed the contents in sufficient detail to set aside any Michaelis, Montanan & Johnson concerns and the only question is whether the consultant has accurately summarized and compared them. No one is likely to be better able to do that than the other proposers, and to further that effort I think that before any decision is made, the public is now entitled to see: i. The original proposals, as received on June 28. ii. The current proposals, after the "clarification" process alluded to above. iii. Any communications between the consultant and /or City staff and the proposers. 3. Political Reform Act Issue a. Consultants whose work will have a material impact on public decisions are normally required to file "Form 700" Statements of Economic Interests, disclosing any gifts, income or business interests that might influence their work As of the writing of these comments, an inquiry regarding whether the HF &H consultant(s ?) have Form 700s on file has not been answered. b. A similar concern exists with the Form 700s that are on file for our elected decision makers, for contributions can be disguised through PAC's and other mechanisms. Knowing, now, who the proposers are, the public needs some time to sort this out, and hopefully our elected officials will be proactive in disclosing any entangling relationships they may have. For all the above reasons, I think that after just five days of public review it is premature for the Council to make any major decisions regarding the future course of this, particularly regarding locking into a basic concept (automated trash collection) that has been rejected in the past. Saying that the Council, by quickly selecting a preferred proposer, is "just beginning the dance," and may not, in the end, choose to consummate a contract with any of them, does not cut the mustard for me. Regarding the staff report, which I have not yet studied in much detail: September 10, 2013 Council agenda item comments - Jim Mosher Page 4 of 4 I am not entirely comforted by the statement on page 3 that only the voters can change Newport Beach Municipal Code 6.0§ 4.170 (Mess ure Q ") which requires trash service within the City's 1996 boundaries to be paid out of the basic 1% tax levy. First, that law has become inequitable to those in areas annexed after 1996, and second, it's not clean it offers the stated protection. It in fact says it applies to a resident "that receives curbside oontainerrefuse collection service from the CiV and it might be argued (by some considerable stretch, but not outside the range of what lawyers do) that service from an outside private contractor is not "service from the City." 2. As a reality check on whether the City is being "low - balled' it would have been helpful for consultant to compare the proposed cost of service per residence to the current costs per residence in areas currently served by the proposers (such as Newport Coast and Santa Ana Heights). It could be somewhere in the report, but I do not find that information readily available. 3. As to the integrity of the proposals, I find it curious that in the lists of litigation on page 50, Rainbow lists cases involving CR &R, but CR &R did not disclose those cases in their proposal. Item 21. Consideration of Ordinance Amending Newport Beach Municipal Code Sections Relating to Piers that Encroach in front of Adjacent Properties 1. This continues to appear to me to be a piece of special interest legislation that does not serve the best interests of the public. 2. The proposed grandfathering in of alleged vested "rights" to use of tidelands waters in front of neighboring upland properties — or any tidelands waters -- is completely antithetical to the Council's recent effort to establish that the use of tidelands waters is not an entitlement associated with the upland property, but rather a discretionary renting of property belonging to all Californians, and administered in trust for them by the City. Any change in the "ownership" of an associated rental permit is an entirely proper time to reevaluate whether such renting is in the public's best interest, and the existing language does exactly that. 3. The Council should be aware this is not old language in need of clean -up. The current language of Section 17.35.020(F) regarding the transfer of encroaching piers was introduced as a sensible way of removing these anomalies from the harbor as part of then Council Policy H -1 as Current Business Item 2 at the January 9. 1967 meeting. It was quite consciously incorporated into the Municipal Code via Ordinance 2008 -2, introduced as Item 19 on the January 8. 2008 City Council agenda. It was again carefully reviewed as recently as Ordinance 2013 -11, introduced on May 14, 2013. 4. Assuming the Council chose to proceed with this, the proposed new Section 2 (on page 5 of 26), which says it is amending NMBC Subsection 17.35.020(E) but which is actually amending NMBC Subsection 17.60.060(E), seems to me to be only muddying the waters.