Loading...
HomeMy WebLinkAbout00 - Public Comments, A-60L W F ti Commen s-oln 1gbve 4r 13, 2012 City Council Agenda Items Comments by: Jim Mosher( 2210 Private Road, Newport Beach 92660 (949- 548 -6229) CLOSED SESSION Since with adoption of Measure EE the City will be assuming a new commitment to conduct business in compliance with the state -wide Brown Act (California Government Code Sections 54950 - 54963), the Mayor and City Manager (whose has a duty under Charter Section 504(g) to see that the laws are enforced) might wish to review the California Government Code Section 54957.7 requirement for an oral announcement, in open public session, of the items to be discussed in closed session. Such announcements have not been made in recent months. Item B. Conference with Labor Negotiators This item appears to have become a permanent feature of Newport Beach City Council agendas, and suggests to the public the Council has a need to confer privately with its labor negotiators regarding every employee association at every meeting. If such conferences are not in fact happening, the permanent listing circumvents the intent of the Brown Act that the public be apprised when actual discussions take place out of public view. Item C. Public Employee Performance Evaluation (City Attorney) stand by my previous comments that the Council should not reward the City Attorney for telling them what they want to hear, rather than what they should hear. As a case in point, per the Minutes of Agenda Item 3 at the last Regular Session, the City Attorney assured the Council that an ordinance for which a complete certified copy had not been posted, as required by California Government Code Section 36933, in the City Clerk's office (or on the internet, for that matter) five days in advance of adoption could nonetheless be adopted in compliance with that code "as long as the Ordinance is published within fifteen days of passage, in the newspaper." Although I don't regard this as a matter of great intrinsic importance, even the most casual reading of Section 36933 reveals that posting in the Clerk's office prior to adoption and publication in the newspaper after adoption are both required. They are not alternatives. In view of this, and since there was no urgency about adopting the ordinance, it would have seemed entirely proper for the City Attorney to advise the Council to postpone adoption to the following meeting, prior to which a certified copy could have been properly posted for public inspection. Apparently this is not what he thought the Council wanted to hear, but failure to observe this simple precaution means an interested party could challenge the validity of the City's modified agreement with CalPERS establishing a second tier of retirees. Likewise, with regard to Agenda Item 8 at the October 23 meeting, a contract in which the City purportedly exercised its privilege to exempt locally- funded public works projects from the statewide obligation to pay prevailing wages by means of a "recital" in the foreword to the contract, the City Attorney assured the Council that in expressing concern about this "Mr. Mosher cited one of many cases that have addressed the issue of prevailing wages." It is certainly true November 13, 2012 Council Meeting agenda comments by Jim Mosher Page 2 of 8 that there has been case law arriving at conflicting conclusions regarding the latitude charter cities have to exempt themselves from prevailing wages, but the case I cited, State Building and Construction Trade Council of California, AFL -CIO v. City of Vista (2012) 54 Cal.4th 547, was heard by the California Supreme Court precisely for the purpose of resolving those conflicts, and the conclusion they reached in July (effectively overriding prior lower court rulings to the contrary) was that, absent a local ordinance "the state's prevailing wage law does not exempt charter cities" (page 560). The proper advice, it seems to me, would have been to advise the Council to defer approval of the contract until the Council could adopt an ordinance defining its policy regarding the payment of prevailing wages, and then cite that ordinance in the recitals to the contract. Again, that does not seem to be what the City Attorney thought the Council wanted to hear. However, because of the questionable advice to proceed with approval without a controlling ordinance, in the million dollar non - prevailing wage contract for landscape maintenance outsourcing that followed as Agenda Item 10, Newport Beach taxpayers appear to be left open to the possibility that an interested party could force taxpayers to pay whatever is necessary to bring the wage rates being paid by the contractor up to the state mandated rates. REGULAR MEETING — 7:00 p.m. Item 1. Minutes for the October 23, 2012 Special and Regular Meetings I have submitted separate written comments to the City Clerk with some suggested minor corrections to the draft minutes. Item 3. Resolution Supporting Application by City of Costa Mesa for Newport Boulevard Corridor Synchronization Project It is commendable that the City of Newport Beach includes clear CEQA findings with each staff report; however the finding, both in the staff report and resolution, that this particular project "will not result in a direct or reasonably foreseeable indirect physical change in the environment," is clearly erroneous. Although the CEQA process has become very imperfect, my understanding is that the original purpose was to ensure that the public and decision makers be aware of the environmental consequences of their decisions, both positive and negative. In this case, the purpose of the Traffic Signal Synchronization Project is to effect a positive change to the physical environment and the question is whether the anticipated improvement is worth the planned expenditure. Item 5. Termination of Housing Agreement with the City Manager • It is commendable that the City Manager is voluntarily and publicly repaying the full amount of the loan advanced to him from the City treasury on, or around, October 22, 2009 to assist him in the purchase of a residence in Newport Beach, even though his obligation under the documents signed on that date may be $13,627 less. On the other hand, payment in full may be required, since no evidence seems to be presented in the staff report that the City Manager obtained prior written approval from the City for the improvements he might like to charge against the appreciation of the property — such prior approval being required under Resolution 2009 -16 (Attachment A). November 13, 2012 Council Meeting agenda comments by Jim Mosher Page 3 of 8 • 1 remain confused as to why the City entered into this agreement in the first place. o The first line of the staff report says that the City Manager's relocation to Newport Beach was required by City Charter Section 501, which prior to its repeal effective December 14, 2010 said "The City Manager need not be a resident of the City at the time of his appointment, but he shall establish his residence within the City within ninety days after his appointment, unless such period is extended by the City Council, and thereafter maintain his residence within the City during his tenure of office." o This is, however contradicted by Resolution 2009 -16, under which the City Manager was hired, which says in Section 12 of the Employment Agreement "Employer recognizes and accepts it cannot require Employee to relocate his residence to the City.... Nothing in this Agreement is intended to require Employee to re locate his residence to the City." o The reason for this equivocation is Article 11, Sec. 10 of the California Constitution, dealing with the powers that can be exercised by local governments, which says "(b) A city or county, including any chartered city or chartered county, or public district, may not require that its employees be residents of such city, county, or district; except that such employees may be required to reside within a reasonable and specific distance of their place of employment or other designated location." o As staff seems to have known when Mr. Kiff was selected as City Manager that Newport Beach Charter Section 501 was unenforceable since it does not designate "a reasonable and specific distance, "it remains unclear why the present staff report asserts the relocation was mandatory. Item 6. 2012 -2013 Sidewalk, Curb and Gutter Replacement As is often the case with contracts submitted to Council by the Public Works Department, the actual contract is not provided, and the intent of the two sheets of Location Maps (Attachment A) is less than obvious. Some of the lines on the maps are more solid than others, and one assumes these are areas where something is proposed to be done with a sidewalk, curb or gutter, but there is no clear explanation that this is correct. Item 9. Reimbursement of Newport Center Tree Replacement Costs • It seems unlikely to me that this request for $122,621 from The Irvine Company is based on a legally binding agreement, and I would have to question whether taxpayers should pay it. The February 5, 1985 "Letter Agreement" provided as Attachment A, a copy of which was added to the City Clerk's Alchemy database files as contract C -2499 on October 22, 2012, does not bear the City Seal nor any other attestation by the City Clerk and the person November 13, 2012 Council Meeting agenda comments by Jim Mosher Page 4 of 8 signing on behalf of the City (Parks, Beaches and Recreation Director Ronald A. Whitley) had any authority to do so under the City Charter. The validity of this agreement is particularly problematic in view of then City Clerk Wanda Anderson's practice of putting cover sheets on contracts, indicating, among other things, the authority under which they were signed. C -2499 lacks a cover sheet, in contrast to the similar but more formal contract C -2489, effective February 13, 1985, in which The Irvine Company took over responsibility for repairing and maintaining public street lighting in Newport Center in return for an inflation- corrected payment of $23,170 per month (representing the City's share of energy costs). C -2499 was approved by the Council (at its January 14, 1985 meeting), signed by the Mayor, and attested to by the City Clerk, consistent with Charter Section 421. For the legal requirement for contracts in Newport Beach to follow Section 421 see Burchett v. City of Newport Beach (1995) 33 Cal.App.4th 1472. Reviewing the Council Minutes from surrounding months, I am unable to find any evidence to indicate that Mr. Whitley was authorized to bind the City's taxpayers to this agreement in compliance with Section 421, and particularly in view of The Irvine Company being well aware of the City's rules I do not think their request should be paid. Item 11. Agreement for Refuse Container Collection Services It would seem worth noting that although Robert's Waste and Recycling has offered to perform this service at substantially less than the City's current in -house cost ($180,745 to do what costs the City $318,290 per year), the other four bids were higher than the City's current in -house cost, one of them more than four times the current cost. • Before the present agreement ends on January 6, 2018 it would seem the Council might want to re- evaluate this matter, for if Robert's adjusts their price to something closer to the private market rate, the new cost of outsourcing this service might well exceed the cost of performing it in -house once again. Item 13. Organizational Changes in the Fire Department Per City Charter Section 601 ( "The City Council, by ordinance or resolution, may assign additional functions or duties to offices, departments or agencies not inconsistent with this Charter. ... The City Council shall provide for the number, titles, qualifications, powers, duties and compensation of all officers and employees. ") and Newport Beach Municipal Code Section 2.28.010 ( "Upon the recommendation of the City Manager, the City Council shall establish by resolution the classification of positions in City employment and a salary range or rate for each class or position." it would seem to me that the recommended action should be taking place by resolution, yet there is no resolution mentioned either in the staff report or on the agenda. • Additionally, I am unable to find in the Discussion any basis or justification for the recommended salary range for Life Safety Specialists of $ 60,722 to $103,417 annually. November 13, 2012 Council Meeting agenda comments by Jim Mosher Page 5 of 8 Item 14. Commercial Tidelands Uses • The reference on page 4 of the staff report to "a public workshop with the harbor stakeholders on October 31, 2012" (Attachment E) is puzzling since all of California are harbor stakeholders, yet, to the best of my knowledge the workshop was never publicly announced, nor did it appear on the City's on -line calendar of events. Item 15. Executive Management Classification and Compensation Study find this staff report muddled and confusing. The Minutes of the September 25, 2012 Study Session suggest that a re- evaluation and setting of salary ranges is required by "new PERS regulations" but the present staff report fails to mention, let alone explain, what those new requirements might be. I have also been unable to find the August 2011 contract with Fox Lawson alluded to in the second sentence of the staff report. I did find a $50,000 contract C -4976 awarded by former Assistant City Manager Dana Smith on or about September 30, 2011 and amended effective October 20, 2011 which sounds somewhat similar, and a later $115,000 contract C -5176 with Fox Lawson awarded by the Council for a City -wide compensation study (even though such a study seems possibly to have been part of C- 4976). It is unclear to me if C -4976 was awarded and amended at the request of Council, or independently by those it purports to study. It would seem to me that if taxpayers funded the C -4976 study of the City's executive management compensation, we have a right to see a clear written report, rather than just the conclusions drawn from it by the City's executive management, supplemented, perhaps, by a last minute, difficult to verify or study, oral presentation. Although the "Funding Requirements" section of the present staff report says "There is no impact to the FY12 -13 budget. The proposed salary structure included in this report does not impact current Executive Management employees since there is no recommendation for individual pay increases," once approved by Council, the raised salary caps will clearly provide justification and pressure for salary increases in future fiscal years. In fact, the raising of the salary cap for the City Clerk position is apparently already being used to "allow" the increase in the Clerk's salary proposed in Agenda Item 16, and if that is approved, the new ranges will impact the FY12 -13 budget, albeit in a minor way. Page 4 of the main staff report says "A salary review was conducted comparing Newport Beach to twelve public sector agencies ... as well as the private sector, as appropriate. (Exhibit D)," yet Exhibit D lists no private sector entities, leaving it unclear what comparison data was actually used. In the absence of a formal report, there seems no way to verify that the recommendations are "correctly" related to the "field" work, or how such problems as dealing with differences in the sizes of the comparison agencies were dealt with. Beyond that, I am unable to detect any clear relationship between the summary numbers listed in Exhibit F and what I assume is supposed to be a plot of those numbers in Exhibit E. November 13, 2012 Council Meeting agenda comments by Jim Mosher Page 6 of 8 Assuming the Council wishes to adopt some version of executive management's recommendations for their own compensation, the first paragraph of both versions of the proposed Resolution 2012 -100 (Attachments A and B to the Supplemental Staff Report) correctly cites the Council's obligation under Newport Beach Municipal Code Section 2.28. 010 to "establish by resolution the classification of positions in City employment and a salary range or rate for each class or position," but fails to note that the Municipal Code is an implementation of a larger obligation under City Charter Section 601: "The City Council shall provide for the number, titles, qualifications, powers, duties and compensation of all officers and employees." • Both versions of the proposed Resolution 2012 -100 refer to themselves as modifications of the City's Key and Management Compensation Plan, but the presently posted plan, adopted by Council at its December 14, 2010 meeting, appears to have expired on June 30, 2012, and it is not obvious that it has been replaced. • The references in the proposed resolutions to a salary range for a "Chief Information Officer" is quite confusing since as part of Agenda Item 19 ( "Changes to the Management Team ") at its September 11, 2012 meeting, the Council agreed to eliminate that position, which in June had been budgeted within the Information Technology division at a base salary of $162,427.20. The September 11 staff report suggests that the proposed responsibilities of the "Chief Information Officer" have since been subsumed into the duties of Rob Houston, who added the role of "Information Technology Manager" to his existing role as "Assistant to the City Manager." o Is adoption of the proposed resolutions intended to resurrect the "Chief Information Officer" position, which may or may not have ever existed? Item 16. Employment Agreements for City Manager and City Clerk • It is unclear why, in the "Recommendation," the Deputy City Clerk is being asked to attest to the Mayor's signature on the City Manager's contract. It is understandable that the Clerk would not attest the Mayor's signature on her own contract, but her conflict with regard to the City Manager's contract is less clear. • It also seems odd that the "Funding Requirements" section of the staff report lists the (combined) amount of the salary increases, but leaves it to the reader to guess the magnitude of the "one -time merit payments" being offered to the City Clerk and City Manager (which I suspect may be illegal for reasons detailed later on). It seems even more odd that the magnitude of the "merit payments" is specified only by a "paid work days" formula (with what seem to be completely arbitrary starting dates) given in the contracts, and that the approximate dollar amount resulting from those formulas are never indicated, either in the contract or the staff report. o Assuming there are no typos in the formulas, the proposed amounts of the "merit payments" appear to be about $1,000 for the City Manager and $2,500 for the City Clerk. November 13, 2012 Council Meeting agenda comments by Jim Mosher Page 7 of 8 o The proposed bonuses should be weighed against Executive Management's failure to alert the Council, among other things, to the possibility of saving taxpayers $80,000 by deferring an election for uncontested Council seats. Nc other Orange County city incurred the costs for such an unnecessary election. • The staff report also fails to make clear that, per Agenda Item 15, the proposed new salary for the City Clerk is outside the current salary range listed for that position, but would be within the new range if one of the resolutions proposed in Item 15 is adopted. It would have seemed helpful to explain in the staff report the changes to the contracts necessitated by Assembly Bill 1344, rather than simply saying changes were made to achieve compliance. My reading of the new Government Code Section 53243 is that it requires reimbursement for costs incurred by the on behalf of the officer City (including attorney's fees and administrative leave) related to litigation against the officer when the litigation results in a conviction for abuse of office. I don't actually see any clear provisions to that effect having been added to the amended contracts. I also find unclear the policy implications of the final sentence of Section 3.A. of both contracts, saying that the base salary for these positions can be altered by a blanket Council resolution altering the base salary of all Executive Management Employees. That seems contrary to the present policy, exemplified by this agenda item, of treating the positions individually. The staff report also fails to note that the City of Newport Beach's lifetime "Key Management" contracts, of which these are examples, appear to remain anomalous and unnoticed by the Orange County Grand Jury, whose 2010/2011 "Compensation Study of Orange County Cities" observed with favor that (as far as they knew) none of the management employment contracts with Orange County cities "have a lifetime commitment or terms over three years or automatic renewal for numerous years" (page 19). Both contracts make reference to "the City's Key and Management Compensation Plan, Executive Management category ( "Compensation Plan')," but as noted in the previous agenda item, the Key and Management Compensation Plan adopted by Council at its December 14, 2010 meeting was only effective from July 1, 2010 through June 30, 2012 and does not seem to have been replaced, so it appears Newport Beach has no current Key and Management Compensation Plan. • The "one -time merit payments" offered in Section 3.A of both contracts seem problematic to me, in that they sound like bonuses being given for past work done exceptionally well. Absent a provision in the original contract anticipating the possibility of pay for achieving, or exceeding, quantifiable goals, such incentives would appear to be precluded by Article 11, Sec. 10(a) of the California Constitution: "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." Since I am November 13, 2012 Council Meeting agenda comments by Jim Mosher Page 8 of 8 unable to find anything anticipating an obligation to pay a merit bonus in the existing employment contracts, the 'Compensation Plan" or the City's Employee Policy Manual, I have to suspect the unscheduled bonuses being offered here are illegal gifts of public funds. o Despite the statements about "short and long -term incentives" by Mr. Lawson per the Minutes of the September 25, 2012 Study Session, in particular that "that the issue of incentive is a very important component that would allow the City to have a base that is not subject to criticism but is at a level that will retain high - performing people," I am unable to find anything in the amended contracts about future bonuses or incentives, or the actions that would be required to qualify for them. The City Manager's contract also seems unusual in that Section 3 contains no requirement for setting performance goals or for the Council to review their achievement. The City Clerk's contract, although it contains no mandatory review requirement, does, in Section 3.B, say "Employer, by the City Council, and Employee shall promptly set mutually- agreed upon objectives for each year." • Section 4.1 in both contracts is confusing in that the September 27, 2011 "Amendment One" to the City Manager's contract said the "full" employee PERS contribution was 8% of the employee's salary, to which 1 % was being added to defray a part of the employer's (City's) cost for a total of 9 %. The current contracts seem to say the "normal member contribution" is 5.58 %, to which 3.42% is being added to share the employer cost, again for a total of 9 %. In addition, in Section 4.1 of the City Manager's proposed contract, the sentence "In the event the City Council adopts a Compensation Plan in which the contribution toward retirement by the Key and Management Group is greater than nine percent (9 %). but not less than nine percent (951o), that set forth herein, this Agreement shall be deemed amended and Employee will be subject to the same formula or percentage contribution as it applied to the Key and Management Group covered under the Compensation Plan and for the same duration" probably has multiple typographical errors. At least the meaning of "greater than nine percent (951o), but not less than nine percent (951o), that set forth herein" is unfathomable to me as I am unable to think of a number that is "greater than nine percent (95/o), but not less than nine percent (9 %)." Finally, having unsuccessfully searched the Employee Policy Manual for a broader policy on bonuses, I would note in connection with the reference in Section 8.13. of the Clerk's amended contract to a "9180 schedule as defined in Section 2(RR)(1) of the Employee Policy Manuaf' there seem to be errors in that definition, which suggests the schedule consists of working eight 9 -hour and one 8 -hour day (for a total of 80 hours) in a 7 calendar day period, taking off alternating Fridays or Mondays. Since it is difficult to picture working 9 days in a 7 day period, I suspect it meant to say 14 calendar days.