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HomeMy WebLinkAbout00 - Written CommentsReceived After Agenda Printed August 11, 2015 Written Comments August 11, 2015, Council Consent Calendar 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 July 28, 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 strikeout underline format. Page 403: Item SS2, paragraph 3, last sentence: "He applauded staff and City contractor efforts, but questioned what more could be done to prevent ^ such ,r.'^'o.do„oas incidents from occurring again." Page 403: paragraph 2 from end: "Shelly it vi n Shelley Ervin commented positively on the work..." Page 404 -5: Item SS3 ( "Blackball "): there are many names here, some of which I suspect are misspelled. It would be helpful to tell people their names will appear in the minutes and if they want them spelled correctly they should provide a speaker card. For example, "Stephen Jeramias" (page 405) would seem to be OC film producer and Newport Surf Council signatory "Stefan Jeramias." I did not try to check the others. Page 407: paragraph 1: "City Manager tiff stated the matter will be brought back for Council consideration at a future meeting that will support Recommendation Nos. 1 and 2. He indicated that Recommendation Nos. 3 and 4 will not be coming back to Council." The minutes fail to report that preceding this (at 72:40 in the video) City Manager Kiff sought further clarification from Council Members Dixon and Duffield of their positions. Council Members Dixon and Duffield then stated their positions (which are not recorded in the minutes but crucial to understanding the result), after which the City Manager announced a consensus had been reached on each of the recommendations. This, and the "nodding of heads" and "giving of direction" that typically takes place at Newport Beach "Study Sessions," would seem to be "actions taken" on proposals as defined in the Brown Act (specifically, Cal. Gov. Code Section 54952.6: "As used in this chapter, "action taken" means a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance. ") That is, members of the public who assumed they didn't need to attend the Study Session to speak about Recommendations 3 and 4 because they would be coming back for further discussion and vote anyway, will be disappointed: the Council clearly acted on, and disposed of them, at the Study Session. While there is nothing illegal or improper about taking action on items announced on the agenda, Newport Beach residents have been repeatedly told that "Study Sessions" are for August 11, 2015, Council Consent Calendar Comments - Jim Mosher Page 2 of 6 discussion only, and that no actions or decisions are made at them — but there does not seem to be any written policy to that effect. The City needs to clarify its position on this. Page 407: Item IV.C: "CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION ... Pacific Shores Properties, LLC, et al. v. City of Newport Beach Newport" I failed to mention this at the time, but it seems odd to see this item on the closed session agenda since a settlement of the matter was announced in the closed session report (Item VIII) at the July 14, 2015, meeting and the final executed document reveals the other parties had signed on July 1. It would seem like any remaining procedural matters could have been discussed in open session. Page 408: Item XII, last paragraph: "Mayor Selich requested placing an item relative to a sea - level rise policy on a future Council agenda." It might be noted that despite this request recorded in the minutes, the requested item does not appear under Item XIII ( "MATTERS WHICH COUNCIL MEMBERS HAVE ASKED TO BE PLACED ON A FUTURE AGENDA ") of the current (August 11, 2015) agenda. Page 409: top of page: "• Vote at the Auqust 11, 2015, meeting on the item items requested by Council Member Curry at the July 14, 2015 City Council Meeting." As written, the minutes suggest the Council approved placing the items requested by Council Member Curry on a future agenda. As the agenda and the Mayor made clear, the third item mentioned in the motion was simply a note that because Council Member Curry was absent, the vote to place his items on a future agenda was going to be deferred to the August 11th meeting. Page 410: Item 8 ( "Plan Review Services "): "Continue tG the August 44 2015 City r,...nGil meetin •„ The City Manager requested this item be continued, but did not specify a date. It does not appear to be on the August 11th agenda. Page 411: Item 10 ( "School Resource Officer Program Agreement "): "Continue to the st 11, 2015 Gity GOURGil Meeting." Although this item is on the August 11th agenda, no date was specified as part of the July 28th continuances. Page 411: Item 17 ( "Fiscal Year 2015 -2016 Special Event Support Funding Recommendations'): "Continue to the August 11, 2045 City GGUnGil fneetin^ " Again, no date was specified as part of the July 28th continuances. Page 411: Item 11, motion: "... adopting a successor Memorandum of Understanding for the period July 1, 205 2014 through June 30, 2017, ..." I'm glad I wasn't the only one confused about this. The proposed MOU is not just a few weeks late. It is apparently intended to be retroactive for more than a year. August 11, 2015, Council Consent Calendar Comments - Jim Mosher Page 3 of 6 Page 412: Item 14, paragraph 2, sentence 2: "He noted that there are several environmentally senssieat nus conscious groups in the City who would like to increase awareness for the protection of wildlife." [ "conscious" was the word actually spoken, and it sounds better to me] Page 412: Item 15, last sentence: "He also expressed concerns that a single Council Member could direct staff to do what should be the result of a vote of the peepl2 by the whole Council." Page 413: Item XVII, paragraph 2: "Paul Mattheis Matheis commented on his prior remarks ... He commented on a lawsuit by three dire Chie#s Chief Fire Officers on a single cause of action ..." [I am not sure of the distinction, but I believe the City has only one Fire Chief and the phrase used was "Chief Fire Officers" in reference to a claim by employees of age bias] Page 413: Item XVIII: "Council Member Petros provided reports on resent a July 21" meeting of the Finance Committee and an upcoming August 6'" meeting of the Aviation Committee meetings, and addressed the items considered and actions taken, or to be taken, during each meeting." Item 3. Resolution No. 2015 -64: Adopting a Memorandum of Understanding with the Association of Newport Beach Ocean Lifeguards 1. 1 applaud this new effort to increase public knowledge and review of the Council's agreements with the various employee bargaining units. 2. 1 think the transparency would be even better if the columns labeled "Projected Cost' in Attachment C had been labeled "Projected Cost Increase" for that is what they seem to be. If they were the new total costs for those years the City would be getting a heck of a deal. 3. As previously noted (see written comments on Item 11 at the Council's July 281' meeting), I have some concern about the present agreement being retroactive for more than a year. Not because retroactivity is inherently wrong, but because the California Constitution has a long- standing prohibition (Article XI, Section 10(a)) against cities, including charter cities, providing compensation for services already rendered in excess of what had been agreed to at the time those services were rendered. 4. That said, I am unable to find anything in the MOU, or in the public explanation of it, that would authorize the payment of retroactive compensation. For example the table of cost increases over the three years provided in Attachment C to the current staff report implies the increases are confined to the two coming years and there will be no changes to the costs for the year just completed (FY14 -15) — although if retroactive compensation were paid I presume it would impact the current (FY15 -16) budget and not the one for the year in which it was allegedly due. 5. Assuming there is no retroactive compensation, I remain mystified why the MOU is being made retroactive for more than 13 months, and what the significance of that is. While it August 11, 2015, Council Consent Calendar Comments - Jim Mosher Page 4 of 6 seems unfortunate the organization had no agreement for a year, making this agreement retroactive to July 1, 2014, seems like applying a Band -Aid after the injury is gone. 6. 1 also think the July 1, 2014, effective date could cause confusion in interpreting the MOU. For example, near the bottom of page 1 of the MOU (Attachment B, or page 3 -6 of the printed agenda packet) it describes those to whom the MOU applies as employees who have worked "during the most recent summer season (or the summer season the year preceding the most recent season if they took an approved leave of absence and missed the most recent year)." I have no idea which "most recent summer season" is intended. If the MOU started on July 1, 2015, 1 would assume it meant the summer of 2014. But if it starts on July 1, 2014, it could mean the summer of 2013. The years intended need to be explicitly spelled out. Item 4. Approve Resolution No. 2015 -65: Amending Resolution No. 2013 -10, the Key & Management Compensation Plan Regarding recommendations (a) and (b): Some years ago, the City had separate Planning and Building Departments, with separate Directors. It was claimed in 2010 -11 (see Item 24 from January 25, 2011) that there would be efficiency and synergy in merging the two into a single Community Development Department, thereby eliminating two expensive management positions and replacing them with a single Director — a matter which under the City Charter required more than informal Council action and was eventually cleaned up with Ordinance 2011- 17. 2. The present item makes it appear, at least at first blush, that we are back, in all but name, to having separate planning and building departments with separate Directors, but with an additional person over them, so we now have three high management positions where prior to 2011 we needed only two. 3. If the newly named positions are indeed expected to function once again as "directors' of their respective "divisions" (divisions normally have a "manager "), there may be some lingering confusion because NBMC Section 2.12.030 says "The term "Planning Director" or "Building Director" as found in the Newport Beach Municipal Code, or in any contract or agreement to which the City is a party, shall be deemed hereafter to refer to the Community Development Director." So these new "Deputy Directors" would seem to have not quite their former roles. As to recommendation (c), since the Council is being asked to choose between two alternatives with regard to the "safety chiefs," it would seem to me that the potential fiscal impact of the two choices should be more clearly disclosed than it is. Merely saying "See financial information in the body of the discussion text" followed (in the text) by "future impact will be presented at a later date in conjunction with the respective bargaining unit MOU adoption" does not seem sufficient. This seems to be another "we have to pass it to see what's in it" item. With regard to the proposed resolution: August 11, 2015, Council Consent Calendar Comments - Jim Mosher Page 5 of 6 1. Since the previous "Key & Management Compensation Plan" adopted by Resolution 2013 -10 expired on June 30, 2015, doesn't that imply that a more comprehensive review was contemplated at this time? 2. Section 1.a of the proposed resolution is unclear as where the new text is to be inserted into "Compensation, Section A (Salary)," which I assume refers to the section at the bottom of page 1 of the plan adopted by Resolution 2013 -10? Wherever it is inserted, at least the first paragraph seems strangely out of place since the existing section deals only with cost of living increases and no salaries are mentioned. 3. Section 1.b of the proposed resolution is similarly vague as where the new text is to be inserted 4. With regard to Section 1.c, in the existing Appendix A, in addition to adding the new titles, don't the existing titles of "Deputy Director, Community Development' and "Building Manager /CBO" need to be removed? 5. Section 5, by making the agreement retroactive, raises the same California Constitutional question as agenda Item 3, above, as to whether its implementation would violate Article XI, Section 10(a) by offering additional compensation for services already rendered. Item 5. Summary Vacation of Street Right -of -Way at 914 East Ocean Front Giving up the City's oceanfront boardwalk easement does not seem something the Council should take lightly. 2. Although this item includes as Attachment E the proposed dedication of a portion of the rear of the private property for alley purposes (which seems, also, to primarily benefit the property owner) it is not clear from the proposed resolution how the two actions are connected, whether the dedication is contingent on the Council approving the vacation or required by it. 3. Is the public being offered any monetary compensation to give up what is valuable oceanfront public property in return for something that is much less valuable to the public (an alley between the rears of houses)? If it is not, it would seem that it should. Item 7. Sidewalk, Curb & Gutter Replacement 2014 -2015 Project - Notice of Completion and Acceptance of Contract No. 5884 (CAP15- 0012) This afternoon I noticed a curb replacement / handicap ramp installation project taking place at the intersection of Santiago Drive and Holiday Road. It appeared to me that the project was being undertaken largely, if not entirely, by City crews using City equipment. They appeared to be doing a competent job. It makes one wonder how much the work performed under the present contract would have cost if performed by City employees rather than being outsourced? August 11, 2015, Council Consent Calendar Comments - Jim Mosher Page 6 of 6 Item 8. School Resource Officer Program Agreement As the minutes (Item 1, re: page 411, above) reflect, this item was continued (without explanation) from the Council's July 28th meeting (where it was Item 10). So it surprising there is no mention of that in the staff report, and no explanation of how (if at all) the present recommendation differs from the one presented then. The only difference I can detect is that the July 28th staff report included an Attachment B ( "SRO Benefit Analysis ") which was nothing more than a copy of Exhibit A from the contract. More importantly, the "Annual Total for both School Resource Officers" reported in Exhibit A formerly appeared to be prorated to reflect 10 months of the two officers' annual service. It now appears to show their full annual compensation. I would assume this increases the School District's monetary obligation, but is this fair? Do the two officers actually spend their entire year on the SRO assignment? Or just 10 months of the year? Item 11. Confirmation of Nominees to the Board of Library Trustees I believe this item is highly improper The publicly announced deadline for submitting applications for the regularly occurring vacancies on the City's boards and commissions — which should have been filled by July 1st — was May 13, 2015, and by that date the City Clerk had 11 valid applications for the two vacancies on the Library Board in her possession. While it is true that one of the applicants subsequently withdrew to accept an appointment to the Finance Committee, 10 valid applications remained, and there was no justification I can think of for re- advertising the vacancies. Ms. Janet Ray's application, dated July 7, 2015, was submitted nearly two months after the 2015 appointment deadline, and she should not be a nominee. Her application should be considered in 2016 and 2017 (applications are "active" for two years), but not in 2015. That is the City's normal practice, and I see no reason to deviate from it. The Council should delete Ms. Ray's name and add additional nominees from the list of valid applications. Alternatively, if Ms. Ray's application is to be presented as a nominee, it would seem to me all the people who got their applications in on time should be presented to the Council as equally valid nominees.