Loading...
HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed July 14, 2015 Written Comments July 14, 2015, Council Agenda Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( iimmosher(o),vahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the June 16, 2015 Special Meeting and the June 23, 2015 Study Session and Regular Meeting The page numbers below refer to Volume 62 of the draft minutes. The passages in italics are from the draft with suggested changes shown in stfikeeut underline format. General comment: If I have not done so before, I would like to suggest that the first names of City officials be listed the first time they are mentioned, as is done with public and other non -City speakers. For example, on the first page: "ROLL CALL - 5:00 p.m. Present: Council Member Scott Peotter, ... Harbor Resources Supervisor Sean Levin presented a PowerPoint ... Harbor Commission Chairman Brad Avery addressed the Commission's review process ..." and so on. This is already the custom with the minutes of most boards, commissions and committees, and it makes them more human, more readable, more searchable and more understandable to future generations. Specific suggested changes and comments: Page 352: Item 1, paragraph 3, last sentence: "He reported that the proposed changes reduce Tidelands revenues by approximately $1 million and asked for Commissioner Avery's opinion regarding which projects the City could obtain savings on." Page 352: last sentence: "Chairman Avery assured that no Commissioner who reviewed this issue is was a mooring holder at the time it was acted upon." [further comment: the verb "assured' as used here and several other places in the present draft minutes, sounds odd to my ear. "offered assurances" would sound more natural to me.] Page 353: sentence 2 of long paragraph: "She addressed the methodology for their proposed recommendations, the need to preserve the Fnarket drive market-driven process, ..." Page 354: next to last paragraph: "Scott Karlin ... referenced an article he wrote, and presented it to the City Council." [I am unable to find such a document in the archived record of this meeting.] Page 355: sentence 3 of long paragraph next to end: "He added that they a edjeel requested that, if Council acted on this matter today, they would have the opportunity to speak with City staff prior to final action." [?] Page 362: Item 11: "Friends of the Fire Rings v. South Coast Air Quality Management District, et al. Orange County Superior Court Case No. 30-2013-00690328-CU-WM-CXC' [This case has been consistently mis-noticed on the Council agendas. The Orange County Superior Court records indicate the case named here was transferred to the North County Center of the San Diego Superior Court system in March 2014, and it seems to have a completely different number there.] Page 366: Item 11: "Council Member Peotter abstained on this item." [Was this an abstention or a recusal? If it was a recusal, the reason needs to be stated.] July 14, 2015, City Council Agenda Comments - Jim Mosher Page 2 of 6 Page 372: Item 26, paragraph 4: "Rehert Richard Stein, Arts OC, provided a PowerPoint presentation ..." [Note: the present minutes contain a number of names I am unable to verify, at least some of which are almost certainly misspelled. It would be helpful to remind speakers that the primary reason for filling out the speaker's card is to ensure their names can be spelled correctly in the minutes.] Page 372: Item 26, paragraph 3 from end: "Barry Allen congratulated the City for the low-cost project ..." [In my view, here and elsewhere, negative comments have been taken out of context and sanitized to a point where they appear positive. I do not feel this paragraph accurately summarizes the overall sentiment of Mr. Allen's very negative comments about this item.] Page 374: Item 27, paragraph 2, sentence 2 from end: "..., information regarding Lifescapes International, Valley Crest, and ,4dwmee Advanced Digital Manufacturing, ..." Page 375: Item 28, paragraph 4 from end: "Josh YaGum Yocam commended Council and staff for their work, ..." Item 3. Hotel Guest Registry Inspections It is always disturbing to see ordinances being introduced on the Consent Calendar. It means City staff is being allowed to set public policy with little explanation and no public discussion. I continue to think the City would benefit from the appointment of a Code Review Commission that could give the text of proposed changes to the Municipal Code the thoughtful review and discussion they deserve. This particular change seems minor and innocuous enough, but I still see it as an unnecessarily swift, knee-jerk reaction to an extremely recent 5:4 US Supreme Court decision, executed with the typical tunnel vision focus on a small piece of code. One wonders why the broader section it resides in (NBMC Chapter 5.36), and the applicability of the decision to the remainder of the City's code, would not have been considered. Some observations: 1. The existing clause "Erasures or alterations shall not be made for any purpose" does not seem reasonable. What is a hotel operator supposed to do if they make an incorrect entry? Can't they correct it? 2. What is the purpose of the inspection clause, and why is it limited to police officers? If it is intended to ensure compliance with the code (rather than to allow fishing expeditions for suspicious guests), which may also be important for such matters as verifying proper payment of the Transient Occupancy Tax, wouldn't it be something of interest to code enforcement officers, and perhaps others, as well? And wouldn't the related permission given the Finance Director, or his agent, by NBMC 3.16.070 to inspect hotel records need a similar qualification to make it constitutional? 3. The Supreme Court's fundamental objection to the challenged Los Angeles Municipal Code Section 41.49 seems to be that it allowed hotel operators to be "arrested on the spot" for refusing to submit to a (possibly) warrantless search. Can one really be July 14, 2015, City Council Agenda Comments - Jim Mosher Page 3 of 6 arrested for not complying with this portion of the NBMC? And could it be rewritten in other ways that would remove that defect yet preserve its intent? 4. In addition to the Section 3.16.070 problem cited above, are there not other parts of the NBMC that could be interpreted as requiring the keeping of records subject to similar warrantless "inspections," and hence that suffer from the same constitutional defect (for example, NBMC 7.35.090.G requiring kennel owners to keep inspectable exercise logs). Why are they not being "corrected" at the same time? 5. Inspection of the remaining parts of Chapter 5.36 reveals that it was the victim of a botched amendment in 1972 in which although the hotel operator can keep either a register (in book form) or a set of cards, a one year retention time was imposed on the cards, but no time limit was imposed if the records were kept in a book. 6. Comparison with the challenged Los Angeles Municipal Code section further reveals that our code has become hopelessly dated in the 55 years since it was originally written. The LA code recognizes that hotel registration records are now likely kept electronically. Ours does not. LA requires the room rate to be included as part of the record. Ours does not. And do we really still require every room occupant, including children and infants, to separately and personally sign a book, as Section 5.36.010 seems to say they must? Or is this yet another old and poorly -written code we have on our books but don't enforce? Item 10. Request to Maintain and Improve Existing Private Improvements within the Public Right -of -Way at 520 De Anza Drive I think the Municipal Code and/or Council Policy should be rewritten to direct matters like this to the Planning Commission where they can receive the attention they deserve with the noticing normally attendant to planning issues. There is nothing in the current staff report to indicate the neighbors and other potentially affected persons are even aware there is an application pending, let alone that the Council is poised to act upon it at this meeting. While it is good City staff normally includes a provision allowing these agreements to be revoked, the result is likely to be a decision that becomes known only after the fact. Item 11. Professional Services Agreement for Bill Printing and Mailing Services and Paperless Billing 1. The staff report says the current contract with InfoSend has lapsed. 2. What contract is that? This seems like a major City operation yet I am unable to find any record of a contract with "InfoSend" in the City's Laserfiche contract archive (which, for unknown reasons, displays only "active" contracts even though City Charter Section 603 c requires the Clerk to maintain a permanent book of all contracts) nor any mention of a contract with "InfoSend" in the archived minutes of Council proceedings and staff reports. 3. When did the current contract end? Why was it allowed to lapse? What kind of understanding with the City is InfoSend currently operating under? July 14, 2015, City Council Agenda Comments - Jim Mosher Page 4 of 6 4. Why does the staff report say "InfoSend is paid approximately $63,000 each year for its mailing and online services," yet the proposed year and a half contract is for $277,000? 5. Is InfoSend really a "consultant" as the proposed contract states? It does not sound to me like the firm is offering advice or making a recommendation, but rather is supplying a normal material service for the City. Additionally, are there printing/mailing houses in Newport Beach that could provide this service more in keeping with the City Charter Section 1111 preference for using local suppliers? Item 13. Selection of Alternate Piece for Sculpture Exhibition in Civic Center Park Although it was shown to them in PowerPoint presentations, I can find nothing in the public record to suggest that either the Council or the City Arts Commission ever formally "approved" the alternate sculptures list or how it should be used. So it seems odd, but typical of the City, that the present staff report informing the Council of the City Arts Commission's recommendation was posted online at around 4:00 p.m. on July 9, at least an hour before the Commission even considered the matter as Item VI1.B.1 at its 5:00 p.m. meeting. How could staff have known what the Commission's recommendation would be before they made it? The fact that the Commission accepted staff's recommendation to choose the first item on the list, with little discussion and without asking for public comment, reinforces the impression that this project has no coherent artistic vision or sensibility; for if it did have those qualities, the choice of alternate would surely be dependent on the nature of the piece it is substituting for, and require discussion and consideration of them all. It is also disappointing that the staff report did not (and does not) mention the only public comment on the alternates list received to date at a public meeting, which was in favor of the "Orange Slices." Item 14. Annual Report on Council Discretionary Grant Funds In my view, these "discretionary grants" by individual Council members, included in the budget submitted by the City Manager and purportedly sanctioned by Council Policy A-12, are part of the dirty laundry of Newport Beach that is long overdue for cleanup by elimination. The City Charter clearly places the decision-making authority of the City Council with a collective body acting by majority (or higher) vote (Article IV). With the exception of the primary authority given to the Mayor to act as a spokesperson for the Council (Section 404), no special authority of any kind is conferred on the Council members acting as individuals, nor does the Charter contain anything allowing the Council to confer its decision-making authority on individual members. Indeed, such delegation would be additionally inconsistent with the Brown Act unless that individual were to perform all the deliberation leading to his or her decision in public at noticed "meetings." To be sure, the Charter does allow the City Manager to dispense funds in accordance with a Council -approved budget (Sections 421 and 504 b ), but it does not give any comparable authority to individual Council members. And whether or not such funds were allocated by the Council as a whole in the budget, it certainly does not give individual July 14, 2015, City Council Agenda Comments - Jim Mosher Page 5 of 6 Council members the authority to decide in the privacy of their homes how public funds should be dispensed, without public comment or knowledge and without benefit of any checks or balances. Moreover, not only is the dispensing of funds by individual Council members arguably illegal, but it taints the public process since when City staff or the Council at a public meeting is openly allocating public money to a particular project or cause, neither they nor the public know if any of the Council members have privately decided to pledge some other portion of the public treasury to the same project or cause. About the only good thing I can say about this year's report is that it is being presented after the close of the City's fiscal year, so it presumably represents the totals for the year and any unexpended money will be returned to the General Fund. In former years, the report was presented during the budget process, before the close of the fiscal year, so the public never knew if there were last minute disbursements, or how the year actually ended. Among the bad features of this year's report is that four of the Council members were replaced on December 11, 2014, so the public has no way of knowing which of these arguably illegal expenditures were made by former Council members and which by the current ones. As to the substance of the report, I see the following problems, most of which could have been avoided if the public's business was done in public, as it is supposed to be in California: I attend the meetings of AirFair and support their efforts, but AirFair is registered as a Political Action Committee with the California Secretary of State (ID 1251998). Isn't there a legal prohibition against any public money being given to PACs? 2. The Balboa Island Museum $ Historical Assn has received a publicly agreed to allocation, generally as a last minute "Checklist" item, in each recent City budget. Why is an individual Council member allowed to alter that amount? 3. Who is the Balboa Village Homeowners Assn? I am unable to locate any California corporation, non-profit or PAC of that name, nor is it on the City's map or list of Community Associations. Why are taxpayers hosting a Fourth of July party for them? And were the rest of us invited? 4. The former City Council already committed, I think improperly, to giving $40,000 per year for five years to anyone on Balboa Island or in Balboa Village calling themselves a "merchants association" (with no requirement to raise any other money on their own). Why is additional funding being given to the "Balboa Village Merchants Assn" (the legal name is "BVMA")? 5. Who is the "Bayside Angling Club"? Is this the same as the Balboa Angling Club — for which the Council as a whole already allocated public funds in the most recent budget, in contravention of our longstanding contract agreement with them — or is this yet another group that can't make it on its own? 6. 1 thought it was a point of great pride that the activities of the Ben Carlson Foundation were being funded without a penny of public money. Now we find an individual Council member has pledged our money to them after all? July 14, 2015, City Council Agenda Comments - Jim Mosher Page 6 of 6 7. 1 attend and admire the meetings of the Corona del Mar Residents Assn, but why are the City's taxpayers supporting that particular organization and not many other residents associations in the City? 8. 1 have been unable, even with Google, to determine what the "Catch the Boat Campaign" is or was, but this is by far the largest line item in the list and since ExplorOcean has a development application before the City, which may well prove controversial, and assuming this is some kind of fundraiser for the project, is it really appropriate for the City to be contributing public money before any public decision has been made? 9. Golden Communications: why are taxpayers paying for one Council member's personal promotion on the internet, and not for others? Shouldn't this be a matter of public policy and not one of individual decision? 10. 1 am able to find a listing for what I assume is Human Options, but why should an individual Council member be allowed to decide taxpayers should be supporting that organization outside the City's normal grant programs? 11. 1 am unable to find any listing for Newport Beach Women In Government. Are they a PAC or a non-profit and why haven't they registered? 12. Several of the other items seem to be organizations or activities for which the Council as a whole has approved a level of funding through the budget or public grant programs. I personally do not think making contributions of the taxpayers' money to private organizations and activities is an appropriate function of government, but doing it in the present fashion compounds the problem by causing the grants to become arbitrary, often (and perhaps even unknowingly) redundant and completely lacking in public input. The "Council Discretionary Grants" should be eliminated.