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HomeMy WebLinkAbout0 - Public CommentsAgenda Item No. Public Comments 10 -22 -13 October 22, 2013 City Council Agenda Item Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(c-)vahoo.com ), 2210 Private Road, Newport Beach 92660 (949 -548 -6229) CLOSED SESSION Item A. Conference with Labor Negotiators The Council may wish to know that prior to adjourning to a closed session under the exemption cited, Government Code Subsection 54957.6(a) requires identification in the open session (presumably by oral announcement) of the designated negotiator(s), who, per Subsection 54954.5(f) may differ from those printed on the agenda. Item B. Public Employee Performance Evaluation (City Attorney) As noted by Councilwoman Daigle a few months ago, this particular exemption to the Brown Act is exclusively for the evaluation of employee's job performance, and not for discussion of his compensation, except for a disciplinary decrease (which, if it were to be considered, would presumably require the word "discipline" in the agenda notice). And even though the employee being evaluated is the City Attorney, this exemption is also not to be used to receive advice or clarification about legal questions confronting the Council or the City. In fact, there is no closed session exemption allowing such discussion, other than with regard to a clearly noticed item of potential litigation, as in the following item. All other advice is supposed to be provided either in writing or in open session. Item C. Conference with Legal Counsel - Anticipated Litigation The specific exemptions cited on the agenda indicate this discussion will be about a matter in which the City has done something over which it might be sued, but of which the party who might sue is unaware, and the secret discussion will keep them unaware. Although I appreciate the need to conserve taxpayer dollars, and although permissible under the Brown Act, such secret discussions raise basic questions in my mind about the level of honesty and forthrightness we expect in the conduct of our City's affairs, including the ability to squarely admit and correct errors when we make them, as all of us inevitably do. In that same vein, as at least some of the Council members are aware, there is a matter of potential litigation related to a request from me for a Brown Act commitment from the Finance Committee that could lead to litigation, but which could not be the present topic since I am very aware of my right to sue in the event a commitment is not forthcoming. That issue is related to the application of the following passage from the California Government Code (in which the Finance Committee is regarded as a "legislative body "): 54952.2.(b)(1) A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through October 22, 2013 Council agenda item comments - Jim Mosher Page 2 of 9 intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body. Since two is a majority of three, this passage would clearly appear to prohibit any discussion between members of a three - member committee of topics related to the subject committee's business, outside its noticed public meetings — and at least in my view a good public policy we need to follow if all the public's business is truly to be conducted in public. Yet despite evidence that such unnoticed discussions have occurred in Newport Beach, the City Attorney has been quoted in the papers as suggesting non - public discussions between Council members are protected by the First Amendment and are also allowed if those participating are able to think of themselves as something other than committee members during the discussion. Possibly as a result of such advice, on October 15 the Finance Committee offered a peculiarly limited commitment confined to a promise to not publish the results of future unnoticed discussions between two of its members, leaving open the question of whether it thinks the discussions themselves are permissible if the results are not published. The Mayor and several Council members have suggested that the Council's intention to honor the Brown Act is a ridiculous issue that should not require litigation or a written commitment to resolve. I agree, and may ask the Mayor to ask the City Attorney to publicly advise the Council as to whether Subsection 54952.2.(b)(1) prohibits unnoticed, non - public discussions between members of a three member committee, or not. If he refuses to do so, I think a reasonable person would take that as an indication that the City intends to continue allowing such discussions, which opens the door to a suit, for which the City would likely have to pay the costs, to obtain a judicial determination of what one would think is a very simple issue. Item D. Conference with Real Property Negotiators This item appears to involve purchase or lease by the City of the parking lot roughly across 32nd Street from the fire station at the old City Hall site. This is not currently listed as a City parking lot, and since the City seems interested in turning its main property in this area over to private control, it is unclear to me why it would want to acquire additional property there. I would have thought some public discussion of the desirability of acquiring the property would have been conducted prior to settling on price or terms of payment, which are the only legitimate topics for the closed session. REGULAR MEETING Item 1. Minutes for the October 8, 2013 Study Session and Regular Meeting The passages in italics are from the draft minutes, with suggested changes shown in strikeout underline format. The page numbers refer to Volume 61. Page 305, under Item 2, paragraph 1, line 6: "... with direct and in-direr- indirect costs ...... October 22, 2013 Council agenda item comments - Jim Mosher Page 3 of 9 Page 306, paragraph 1, line 4: "... the BIA wants to ensure that the public is not receiving redundancy in the bureaucracy and is receiving adequate services." [note: the draft minutes accurately reflect what the speaker said at 30 min 07 sec in the video recording, but I find it hard to believe the BIA is championing "redundancy in the bureaucracy." Point 6 in the BIA correspondence included in the agenda packet suggests that their concern about redundancy is about being charged twice for the same service.] Page 309, paragraph 1, last sentence: "He encouraged Council to require that, as a first phase, a study be conducted for having a one -way controlled access versus a temporary bridge, as well as a cost analysis of both." [also note: in an earlier sentence the speaker expressed a concern about safety access to "the Island" during bridge construction. This has been transformed into "Balboa Island" in the draft minutes. I think the island the speaker was concerned about was actually "Little Balboa Island. "] Page 312, line 6 from end: "... and presented background on the matter_ He indicated that, Page 314, under Public Hearing, paragraph 3: "... resolved by requiring a valet during busy times." Page 315, paragraph 3: "Drew Wetherholt spoke in opposition to Woody's Wharf Wharf's application and..." Page 316, paragraph 2, line 3 from end:"... approval of Woody's Whar# Wharf's application." Page 316, line 3 from end of page: "... but avedi€y modified some of his preliminary views based on information presented at the meeting, did not hear anything ...." Page 317, under Item 9, paragraph before motion: "City Manager Kiff provided a report, noting that the City's prior support of the parade. He reported that the Ghambexs Chamber is rested in longer term commitments and noted recommendations as listed in the staff report." Page 318, paragraph 2 from end of page: "Jim Mosher commented on his letter dated September 43 17, 2013, ..." Page 318, line 2 from end of page: "...he is tired of hearing bazaar bizarre interpretations of the Brown Act." Item 3. Resolution of Intention to Establish a Penalty Amnesty Program for the Corona Del Mar Business Improvement District City Charter Section 602(f) continues to require the City Attorney to prepare the resolutions presented to the City Council. I assume that is the case here, but I am unable to find any clear indication of that. 2. The staff report indicates it was the recommendation of the BID Board that assessments which remain delinquent at the end of the amnesty period be sent to collections. I am October 22, 2013 Council agenda item comments - Jim Mosher Page 4 of 9 unable to find anything in the draft resolution suggesting the new ordinance will say that. To be sure, the final "whereas' at the bottom of page 1 says that at the end of amnesty period the City will begin enforcing the debt collection provisions in the previous CdM BID ordinances, but I am unable to find any procedures detailed in them — which might possibly be the reason delinquent payments have piled up. a. In Section 6 of the original Ordinance 97 -24, the mechanism to enforce compliance was that the City would not renew the underlying business license if the business had not paid its BID assessment. b. That clause was removed, for unknown reasons, in Ordinance 98 -15, leaving the enforcement mechanism undefined; and the presently suggested text for Section 6 does nothing to correct that. It merely corrects a typo in the reference to NMBC Chapter 5.04, which seems to be for the sole purpose of quoting the language from Section 5.04.260 specifying the formula by which the penalty amount is calculated, not how the assessment and /or penalty is collected. c. The remainder of NBMC Chapter 5.04 does have some mechanisms for collecting delinquent license fees, including denial of license renewals, but nothing there, or here, would seem to make those provisions applicable to BID assessments, nor even if they were applicable does sending to collections seem to be a clear option (Section 5.04.270 says only the City could take action in court for unpaid license fees and penalties imposed by Title 5). d. In summary, it is unclear why the original authority to deny business license renewals in the presence of unpaid BID assessments or penalties was removed, and the proposed ordinance, at least as explained in the resolution, will do nothing to clarify the present enforcement mechanism, if there is one. 3. The way the new provisions announced in Section 1.0 of the draft resolution will apply to people who have paid penalties priorto the amnesty period is equally unclear. Taken literally, it would seem to say that all penalties, past and present, will be "forgiven" for those who come current on their basic payments during the amnesty window. a. Does this mean that those who paid penalties in past years, or for the current year, will have those past penalties cancelled, and if so, are they due a refund? b. If that is not the intent, the resolution probably needs some language saying what will be "forgiven" is limited to "currently due but unpaid penalties" or something of the sort. c. Whatever the intent may be, if past penalties paid are not refunded, there is a fundamental equity problem: those who dutifully paid the penalties for missing a deadline are penalized, while the scofflaws and procrastinators who wait for the amnesty period are rewarded. Somehow this seems particularly unfair for those who paid penalties during the current assessment cycle, unaware their Board was recommending this, and not knowing that if they waited the penalty wouldn't have to be paid. October 22, 2013 Council agenda item comments - Jim Mosher Page 5 of 9 Item 6. Information Technology Consulting Services with Synoptek The agenda listing describes this as a "retroactive amendment of the contract." Contract amendments, particularly retroactive ones, often seem problematic to me in view of the Article 11, Section 10(a) of the California Constitution which holds that "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." 2. The staff report does not clearly indicate how long ago the existing contract lapsed, or how much of the new compensation requested is for work already performed. Checking the Clerk's database, this appears to be an amendment to contract C -5267, which by its terms ended on June 30, 2013, and which had provisions for earlier termination, but not for extension, and which had a not to exceed compensation (without prior written authorization) of $115,200 for work that was expected to take six months to complete. 3. The amendment seems to be adding 15 months of effort at $19,200 per month, starting July 1, 2013, to execute the new Scope of Services shown in Exhibit A. 4. In view of the Constitutional strictures and previous contract, I think at least two questions are in order: a. Has Synoptek had any written agreement promising compensation for the work performed from July 1, 2013, to the present? b. To what extent do the tasks requested in the new Scope of Services overlap with those that had been previously promised to be performed by July 1, 2013, for $115,200? 5. The answer to 4b appears to be that this is a separate and distinct project: the six month effort was to assist the City in developing its "vision" for ERP and CAD needs, while the 15 month effort is assist the City in selecting and implementing specific systems. As such, I would think of it more as a new contract, than as an amendment. But whatever it is, aside from the questionable wisdom of relying on a single outside consultant to both create a vision and commit the City to the large expenditures needed to implement it, staff appears in effect to have entered into a major contract commitment without City Council approval. 6. To put the contract in context, it might have been helpful for the staff report to remind the Council and public of the anticipated overall cost of the ERP /CAD effort, of which the Synoptek consulting contract is presumably a relatively small part. Item 7. Approval of a New Lease for the Balboa Bay Resort I appreciate that the Balboa Bay Club is a major revenue source to the City, but even before it seems to have been recognized as state tidelands, there have long been legitimate questions about whether this largely private use (particularly the residential apartments) fulfils the purpose for which the property was given to the City by the Irvine October 22, 2013 Council agenda item comments - Jim Mosher Page 6 of 9 family and the appropriate term for a lease (not to mention the ethics of members of past Councils who voted on those issues allegedly being given free memberships in the private Club). 2. My primary concern is that when leases of this sort are approved by the City Council, the public has a reasonable expectation that the ending date has some real meaning, and that on that date a future generation will have an opportunity to reconsider the appropriateness of the decision made fifty years before. But periodic extensions turn these into "evergreen" contracts, always deferring the real decision to a far distant time. By doing so, I think we are depriving future generations of the "out" whose existence was a fundamental premise of granting the lease in the first place. 3. Even in the short term, the contract end point seems to be rushing off into an increasingly distant future. For example, the PKF report, written a year ago, contemplated a termination date of October 25, 2061. Now, less than a year later, we seem to be considering October, 2063, or later. 4. The PKF report also contains some disturbing information, such as the statements on page 5 that PKF was unable to obtain the detailed financial statements needed for its income projections, and that the ground lease payment is "not typical of an average hotel." Are the payments the City is receiving higher or lower than typical? 5. Finally, the supplemental "Confidential Memorandum" from Allan Kotin valuing the lease extension (and apparently questioning the validity of much of the PKF study) shows signs of having been hastily prepared and is based on a logic which at least to me is not clearly explained. 6. Equally or more importantly, the present staff report includes some 50 pages of intricate contract conditions to which the City will be bound for the next 50 years, with only a sketchy indication of what has been changed. I think it would have been helpful to provide a redlined version so the Council and public would not miss any alterations that may have slipped in, intentionally or not, for I don't think the staff report can be assumed to be a reliable guide to that. 7. As to the new agreement that the City would get 15% of the rent for a sublease of apart of the property for cell tower use, which the staff report says is somewhere in the new lease, I'm not sure I understand why the tenant would get any of revenue for further rental of the state tidelands, let alone 85 %. Item 8. Agreement with AMEC for Preparation of Facilities Management and Master Plan Services The staff report seems unusual in that it says AMEC was selected as the most qualified among nine proposers, but it does not mention who the other eight were, or what they bid. 2. Although I appreciate the City's penchant for outsourcing, this seems to me the sort of task where outsourcing seems particularly inefficient. I would think there is no one more October 22, 2013 Council agenda item comments - Jim Mosher Page 7 of 9 familiar with our City's facilities and their need for maintenance and replacement than our own City staff. I believe that staff is very competent, and I am not sure I understand the rationale for paying an outsider to conduct, for example, an "inventory" of what we must already know, primarily for the purpose, it would seem, of bringing himself up to speed. Item 12. Code Amendment Initiation for Properties Located at 2022, 2026, 2032, 2034, 2038 And 2042 Miramar Drive The report begs the question of whether staff sees a need for any other changes to the setback map that could be processed at the same time. Presumably the answer is no. Item 13. City Hall Holiday Closure In the "Side Letter Agreement" (Attachment A) it is curious to see someone signing for "unrepresented" personnel. What is the significance of that, and how did that individual obtain the authority to sign for people he presumably does not represent? 2. I'm not sure the planned Closure Schedule for Library Services announced in Attachment B agrees with that discussed by the Board of Library Trustees at their October 7 meeting. Although it is good the Library Trustees, and apparently Human Resources, feel availability of library service is as essential as fire, police and trash pickup, I believe those expecting the libraries to be open half a day on December 24 and 31 (as they once were) may be disappointed. I could be wrong, but out of deference to what they thought were the employees wishes and Library management's recommendation, I think the Trustees agreed to close all branches for the full day on December 24 and 31, and to stay open no later than 6 pm from December 23 through 29. Item 14. Acceptance of Funds from the California Board of State and Community Corrections The fact that nearly half the state funds will be assigned to an "Advertising and Public Relations" account seems difficult to reconcile with the statement near the top of page 2 that the intended purpose of the funding is to assist cities to "provide front -line services." Is the planned advertising for recruitment or for some other kind of advertising that enhances "front -line services "? Item 16. Approval of Master Fee Schedule In line 3 of the Abstract it says one of the proposed ordinances will increase the cost recovery percentage for the Junior Guards. I believe the proposal is to decrease the cost recovery from 85% (a figure that apparently never quite got officially listed in the table in NBMC 3.36.30) to 82.1 %; but since the true intent seems to be to set the fee at $700, 1 would think the Council might want to simply say that (as made possible by October 22, 2013 Council agenda item comments - Jim Mosher Page 8 of 9 Ordinance 2013 -1, see paragraph 3, below), rather than adopting a contrived percentage. 2. In the preamble to the proposed resolution attached as "Exhibit A" ( "handwritten" page 10), it would have seemed helpful to reference the previous adoption of the Master Fee Schedule, which was by Resolution 2011 -24, and its modification by Resolution 2013 -5. a. The significance of the new system of fees highlighted in green (even if one has access to a copy reproduced in color) is not entirely clear. i. The fees not highlighted are presumably unchanged, but what if there is a discrepancy with the amount listed in Resolution 2011 -24? ii. In particular, what if a fee listed in Resolution 2011 -24 does not appear in the new resolution. Does that mean it remains unchanged? Or that it has been repealed? Or that it might be a "scrivener's error "? b. What does the statement on the third line of page 11 mean: "All other non -fees for service shall remain unchanged"? i. What is a "non- fee "? ii. Again, and more generally, how does one know if a fee found in a previous schedule has been repealed or is still in effect? 3. With regard to the proposed ordinance attached as "Exhibit B" ( "handwritten" page 44), amending NBMC Section 3.36.030, that section of the NBMC was previously amended by Ordinance 2013 -1, which changed the title from "Percentage of Cost to Be Recovered from Direct Fees" to "Percentage /Amount of Cost to Be Recovered from Direct Fees." That previous change does not seem to have been codified or retained in the present ordinance, making the flat $100 fee for Harbor Lease /Permit appeals very awkward in the context of percentage recoveries. 4. In the proposed ordinance attached as "Exhibit D" ( "handwritten" page 61), 1 believe there may be a word missing from the second line. Is it intended to read: "... in the Master Fee Schedule, for which updates are approved by the City Council, ... "? 5. Given the stated purpose of that ordinance, in the proposed revisions to NBMC Sections 5.04.210 and 12.68.040, rather than inserting the words "... as set forth by resolution of the City Council..." would it better, and much clearer, to say something like "... as adopted in the Master Fee Schedule ... "? 6. With regard to the "Legislative Draft" shown on "handwritten' page 65, the fee for a change of business license information (apparently of any kind, not just a change of location ?) indicated on line 21 of the new Master Fee Schedule, and citing this section of the NBMC, is $20. Is this an intentional increase from the $10 being struck out of the NMBC? 7. With regard to the "Legislative Draft" shown on "handwritten" page 67, the new language proposed to be inserted is not highlighted. The $10 fee for preferential parking permits is consistent with that listed on line 49 of the Master Fee Schedule, although of course October 22, 2013 Council agenda item comments - Jim Mosher Page 9 of 9 there are proposals to issue permits in some areas with other fees. Perhaps this is intended to provide greater flexibility? 8. Finally, it might be noted that the bulk of the lengthy staff report and exhibits have been posted on the City website in a PDF "image" format which cannot be searched with the normal computer text recognition tools. That makes public review much more inefficient than it need be. Item 19. Parking Restrictions - Corona Del Mar High School Area 1. 1 find it commendable that the Council is debating this issue, however in view of the bizarre "clarification" to the Council's "Open Meeting Policies" (City Council Policy A -6) added as part of larger package of revisions adopted on May 14, 2013 (as Item 19), 1 find it hard to understand how this matter could be properly before the Council at this meeting. Although Subsection 54954.2(a)(2) of the Brown Act allows a legislative body to, without prior notice, take action to request that an item be placed on a future agenda, as recounted in the staff report to Item 15 of the current agenda, under the new policy in Newport Beach, the only thing the Council can directly direct staff to place on a future agenda is the question of whether an item should be placed on a future agenda. This is supposed to conserve City resources, although it is beyond me how it accomplishes that, or why a rule of procedure allowing the vote to take place at the time of the original request would not be more efficient. 2. As indicated under Item XI in the draft minutes of the October 8, 2013, meeting (agenda Item 1 at this meeting, specifically at Vol. 62, page 308) Council member Petros, at that meeting, "requested Council's consent in directing staff to return with a range of alternatives to address neighborhood parking around Corona del Mar High School," but no vote is recorded on the issue. Hence although the new Policy A -6 continues to give the City Manager broad power to place items "on the agenda in the course of operating the City," the present matter would seem to a Council- initiated request falling squarely under the intent of the new Policy A -6, for which the expected response by staff, even if the Council had voted on this request, would be to be to put the question on a future agenda for a formal vote to decide if it would be worth spending City resources to prepare a full staff report for a meeting after this one (see, again, the handling of Item 15 on the present agenda). 3. Since the new procedure was not followed, does the Council plan to waive the new Policy A -6 so it can take action on this matter without having ever formally voted to allow staff to prepare a report? If so, that intention has not been noticed on the agenda, nor in the staff report.