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HomeMy WebLinkAbout00 - Written CommentsApril 12, 2016, Council Consent Calendar Comments The following comments on items on the Newport Beach City Council agenda are submitted by: Jim Mosher ( jimmosher@yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 1. Minutes for the March 22, 2016 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 596: paragraph 4 from end: “Jim Mosher discussed ad hoc committees and believed that there are ere no standing ad hoc committees or citizen advisory committees.” Page 598: paragraph before motion: “Council Member Curry expressed his willingness to combine the two proposals and noted that Mr. Schroeder had initially proposed citizen participation.” [This sentence accurately reflects what was said, however I believe the “Mr. Schroeder” referred to by Council Member Curry is Michael Schroeder, who published a commentary of in Voice of OC on March 1, 2016, not the George Schroeder of the previous paragraph, as anyone reading the minutes or watching the video would assume.] Page 599: Item XIV, paragraph 2: “George Schroeder discussed Mr. Edward’s Edwards’ expertise in airport issues.” Page 599: Item XIV, paragraph 3: “City Manager Kiff reported that a staff member at the Assistant to the City Manager level previously worked on airport issues, which was costlier than the proposed agreement with Mr. Edwards.” Page 602: motion on Item 16: “Motion by Council Member Petros, seconded by Council Member Peotter, to a) find that the amendment is categorically exempt under Section 15305, of the California Environmental Quality Act (CEQA) Guidelines - Class 5 (Minor Alterations in Land Use Limitations); and b) introduce Ordinance No. 2016-5, An Ordinance of the City Council of the City of Newport Beach, California, Amending the Newport Beach Municipal Code Related to Certain Front Yard Setbacks, and approving Code Amendment No. CA2015-011, and pass to second reading on April 12, 2016. Adopt Resolution No. 2016-41, A Resolution of the City Council of the City of Newport Beach, California, Rescinding Underground Utilities District No. 22 and Establishing Underground Utilities District No. 22a (Balboa Boulevard between West Coast Highway and 22nd Street, Including Court Street between 21st Street and 20th Street) and Ordering the Removal of Poles, Overhead Wires, and Associated Overhead Structures within Underground Utility District No. 22a; and b) Direct staff to initiate project implementation.” Page 603: paragraph 3: “Mayor Pro Tem Muldoon stated the City has a revenue surplus that could be used to pay for the infrastructure.” Received After Agenda Printed April 12, 2016 Written Comments - Consent Calendar April 12, 2016, Council Consent Calendar Comments - Jim Mosher Page 2 of 9 Item 4. Use of the Official City Seal on the Commemorative Plaque for the Ben Carlson Statue The fourth paragraph of the proposed Resolution 2016-47 states a date of acceptance of the Ben Carlson statue (“July 14, 2015”) that appears to be in error. The statue was actually accepted as Item 27 on the Council’s June 23, 2015, agenda. Staff may wish to correct this before Council adopts Resolution 2016-47. Item 5. Amendments to the Records Retention Schedule and City Council Policy A-11 (Recording of Open Meetings) 1. Since the City prides itself on the transparency of its governance, it might be instructive for the Council to compare how the same matter was handled by the only other local government body I am intimately familiar with, the Costa Mesa Sanitary District, which happens to use the same records retention consulting firm, Gladwell Governmental Services, Inc. a. As Item 8 on its January 24, 2013, agenda, the CMSD Board was presented with a proposal similar to the present one, but with the important exception that District staff either worked with Gladwell, or ignored their alleged copyright of a public document, and posted the entire Records Retention Schedule online for public review, with the changes being proposed clearly indicated with redlining: http://ecsweb.cmsdca.net/WebLink/DocView.aspx?id=5524 As in Newport Beach, the proposed resolution of adoption would have allowed District staff to make future modifications to the schedule without further Board action. b. After hearing public comment, and realizing that allowing staff to alter the schedule was inconsistent with the Board’s role of acting as the public watchdog over the staff, the matter was brought back with that provision deleted (even though the staff report may make it sound as if it was still in) as Item 18 at the February 27, 2013, meeting, and again with the entire RRS posted, with the changed passages clearly indicated: http://ecsweb.cmsdca.net/WebLink/0/edoc/5619/18%20-%20Resolution%202013- 827%20Records%20Retention%20Final.pdf c. The requirement for the Board to approve future changes, did not prove burdensome, as illustrated by two refinements returned for Board action as Item 22 on July 31, 2013, and Item 9 on October 24, 2013: http://ecsweb.cmsdca.net/WebLink/DocView.aspx?id=5996 http://ecsweb.cmsdca.net/WebLink/DocView.aspx?id=7259 In both cases, the proposed changes were clearly shown within the context of the entire RRS, including its explanatory pages, which is kept permanently online in each of its historic variations. April 12, 2016, Council Consent Calendar Comments - Jim Mosher Page 3 of 9 In Newport Beach, by contrast, one sees only what claim to be tables of changes, presented without explanation. Assurances such as “Retention requirements remain the same” are meaningless when the public doesn’t know what the current retention requirements are or what the codes and abbreviations in the change lists mean. Members of the public who might wish to understand what is being proposed would have to personally visit the City Clerk’s office to view the paper copy of the actual RRS and then attempt to decipher how the change tables relate to it. That places an immense and completely unnecessary burden on the public, the result of which is that public understanding of what the City’s RRS is, was, or will be, is close to nil. As an example, since in Newport Beach the actual RRS adopted by the Council is not available in the publicly-accessible online document imaging system (supposedly because of copyright protection), it is unclear if copies of former versions of the paper RRS itself are retained by the City, or for how long. That is, if a member of the public thought a Newport Beach City record had been destroyed in violation of the RRS in effect in, say, 2006, it is unclear to me if a copy of the RRS from that date could be found. It is possible that it would have been retained, but I am unable to tell that from what is being presented in this report. In summary, regarding its records retention policy, Newport Beach is, shamefully, a model of opacity rather than transparency. 2. The staff report says the public had a chance to review and comment on the proposed changes at the March 22nd Council study session. I would say it wasn’t much of an opportunity to comment since the public had no written copy to refer to before or at the session – just a series of PowerPoint slides that flashed by moments before comments were invited. I do not see how either the public or the Council could thoughtfully review the proposed changes based on that. 3. I continue to think it’s both absurd and a dereliction of duty on the part of the Council to allow the City’s Records Retention Schedule to be copyrighted by a private company like Gladwell Governmental Services, Inc. I can think of no reason for allowing that, and would question whether it has any true force or effect. If it does, I would have to ask why the City doesn’t develop the schedule itself or find a different consultant? 4. Regarding the proposed Resolution 2016-48: a. I believe the assumption expressed in Gladwell’s boilerplate opening sentence – that a proliferation of saved records is expensive and slows document retrieval – may be true for paper records, but it is totally incorrect as to electronic records. Storage costs for electronic records are becoming increasingly trivial, and retrieval time from an electronic storage medium is a matter of the cleverness of the storage structure and the retrieval algorithms, not the number of records. There is no fundamental reason that retrieving a given record from a terabyte of electronic storage should or does take any longer than from a kilobyte of storage. Yet the flawed assumption that it takes longer leads to the present flawed cost-benefit analysis, leading to the needless destruction of records. The City should clearly reject that assumption and err on the side of retention, rather than destruction. As an example of the April 12, 2016, Council Consent Calendar Comments - Jim Mosher Page 4 of 9 havoc generated by erring on the side of destruction, when City staff went on its senseless rampage a couple of years ago to erase every audio recording more than a year old, the public lost access to a Planning Commission meeting of less than four years ago from which it could have reviewed the comments of the Commissioners on the question of the conversion of an entitlement for Newport Center hotel rooms to an entitlement for residences – a matter which is now the subject of intense public debate. That loss is no irretrievable, but it remains unclear if staff has some reason for being so bent on the destruction of public records, other than its mistaken belief that it’s expensive and slows retrieval. b. Section 2 is not understandable and needs to be revised. i. What is “The amended portions of the Records Retention Schedule, as set forth in Exhibit 1 … … are hereby authorized to be destroyed” supposed to mean? Does the Council actually want to authorize staff to destroy a portion of the Schedule? ii. Presumably this was intended to refer to documents cited in the Schedule, rather than to the Schedule itself, and the intended directive is to follow amended standards as detailed in Exhibit 1. Section 2 needs to be rephrased to express that intent. c. As indicated above, the meaning of Exhibit 1 is completely unclear to the public: i. It proposes what it says are changes to the Records Retention Schedule without showing any example of the actual document being changed, let alone any explanation of the abbreviations used or categories of items being changed. ii. The meaning of the column headed “Specific Request / Comments / Reference / Information/Reasoning / Clarification Needed” is especially unclear and inconsistent. 1. Is there supposed to be an explanation of why each change is being requested or made? If not, why not? 2. Even where there is an “explanation” it is inadequate. For example, we are told record class “PD-031,” apparently involving Back-up Tapes, will be eliminated because it is “No longer part of Police Department business process.” But without seeing the actual Records Retention Schedule, it is impossible to know what is being eliminated and what, if anything, it is being replaced by. 3. Likewise an explanation of Recommendation 5 (“MOD-003; MOD- 024”) is totally lacking. Why are the retention times being shortened and the code references being deleted? Could these records still involve exposure to toxic substances? If so, why are those words being deleted? iii. Like “PD-031,” several categories of documents are recommended to be removed from the schedule, apparently because new documents of those sorts are no longer generated. But there are presumably existing records of these April 12, 2016, Council Consent Calendar Comments - Jim Mosher Page 5 of 9 types that are being retained under the old schedule. Are they to be destroyed immediately? Or only after they reach the end of their retention life under the old schedule? d. Regarding Exhibit 2, Policy A-11 was poorly written when last revised, and it remains poorly written. i. The proposed change to Section A seems intended to preclude the possibility of requests for video recording of public meetings. Why are we doing that? SPON’s privately funded effort to video record the Planning Commission meetings has amply demonstrated they provide a far better record of the meetings than the City’s audio-only recordings: http://spon-newportbeach.org/videotape-planning-commission-meetings/ It seems odd to me that while the City hosts (and perhaps makes?) video recordings of the private Speak Up Newport and Wake Up Newport events, it will not do so for its own public meetings at which actual business of interest to the general public is done. ii. In Section C, since Cal. Gov. Code Section 34090(d) appears to prohibit the destruction of records less than two years old, the staff report does not make clear how a “Notwithstanding the provisions of Section 34090” statement is sufficient to give the City the authority to destroy recordings of public meeting just one year old. And even if a charter city has that authority, one has to wonder why it would want to destroy them? Aren’t the audio and video recordings the best records we have of what happened at the public meetings? Wouldn’t we, therefore, want to keep them permanently? And during the period of their retention, shouldn’t the policy require them to be made accessible online so the public can listen to them without having to submit a Public Records Act request? iii. And while Section C permanently protects Planning Commission recordings, it gives no similar assurance that video recordings of the City Council meetings will be retained, and it sets no policy as to whether any of the City’s recordings should be made accessible via the internet. Policy A-11 seems to assume that once a video recording of a Council meeting “has been uploaded to the document imaging system” it will be permanently retained and publicly accessible. But is there any policy that items uploaded to the document imaging system actually are permanently retained and will be forever publicly accessible? I think this needs to be clarified. iv. The middle sentence of Section C is ungrammatical: “permanent” should be “permanently.” 5. As Attachment C, the staff report includes a report to Council on 32 pages of what it says are “non-substantive” changes to the RRS. April 12, 2016, Council Consent Calendar Comments - Jim Mosher Page 6 of 9 a. “Non-substantive” generally means a grammatical or typographical correction that doesn’t change the intended meaning or effect of a phrase. Most of the changes shown on the 32 pages appear substantive. b. Since “non-substantive” is not the correct word, it would have been helpful for the staff report to quote the actual authority to make changes conferred on staff by Section 4 of Resolution No. 2014-35. I thought in 2014, and continue to think, that the granting of authority to City staff to change records retention policies is inconsistent with the concept of the Council overseeing the City staff’s recordkeeping. I believe no changes to the RRS should be allowed without Council approval. c. That said, the 32 pages of Attachment C suffer from the same problem as Exhibit 1 of the proposed Resolution 2016-48: they are essentially unintelligible to anyone who is not in possession of a copy of the actual RRS, including its explanatory pages. Rather than attempting to describe where changes are being made to a document few people have seen, it would have been infinitely better to simply reproduce the current RRS in its entirety, with each proposed change shown in redline and with an explanation of why each is being proposed. d. As an example of a particularly inscrutable change proposal, I might call the Council’s attention to Item 18 on page 5-15. Under “Records Description” it lists a number of possible types of recording media. I have no idea what kinds of records it is implying would be recorded on those media. e. Likewise, on page 5-6, we see the Council being asked to approve removing Council audio recordings from one existing class, as part of Resolution 2016-48, but I don’t see them being added into anything as part of the “non-substantive” [sic] changes. 6. As to the substance of the current RRS, and whether the proposed changes are the right ones or the wrong ones, it is impossible to comment in any coherent way based only a change list, and without seeing the actual document being changed. a. As indicated above, I would think, for example, that since the RRS itself is a key public document, each approved version of it should be retained indefinitely. But since Gladwell’s “copyright” apparently prevents the RRS from being added to the online archive of public documents, the change list does not tell me if the RRS is itself addressed in the RRS and/or if, where, by whom and for how long previous paper versions of the RRS are retained. b. I likewise strongly believe all audio/visual recordings of public meetings should be permanently retained and made continuously available via the internet. c. I also believe it would be helpful if the FPPC Form 700 filings were made visible on the internet. d. I’m sure I would have many more comments on the RRS if I had to time to review it. 7. Most importantly, I believe it should be clarified if the Council’s policies merely permit staff to destroy records after a certain lapse of time, or place an affirmative obligation on them to April 12, 2016, Council Consent Calendar Comments - Jim Mosher Page 7 of 9 seek out and destroy any records that have exceeded the specified age. For example, in or about 2014, I believe staff asserted that the RRS required them to seek out and destroy irreplaceable recordings of past City meetings (such as those of the Planning Commission, Zoning Administrator and advisory committees) even though the departments in question had, until then, retained them for many years past and were even placing them on the internet for easier public access. 8. Finally, for historical perspective, it may be useful for the Council to know that prior to there being a Records Retention Schedule, it was the practice of City staff to periodically place on the consent calendar a list of the specific records it sought Council approval to destroy at a particular moment. In many ways that was a better, and certainly a much more transparent, system than we have today. Item 6. Amend the Term and Responsibilities of the Balboa Village Advisory Committee (BVAC) As is not very clearly explained in the staff report, the Balboa Village Implementation Plan seems to have envisioned both a short-term advisory committee and a longer term governing body overseeing the parking revenues collected in the Area Benefit District subsequently created by Municipal Code Section 12.44.029.B. It is not entirely clear why staff is requesting a mere two year extension for BVAC, since the Area Benefit District responsibility would seem to be a continuing one. And since a definite end date for the current members’ terms was announced at the time of their initial appointment, it is also not clear if staff thinks the present resolution will be sufficient to extend their terms, or if new appointments will be made. If the need to make recommendations about expenditure of the Area Benefit District revenues is expected to be a continuing one, I would strongly recommend a committee structure with staggered four-year terms, as in the Charter-created boards and commissions. That provides for long term continuity as well as change. The proposed practice of extending the committee term without specifying the members’ terms would seem to leave the same appointees in office forever. I don’t think that’s a good practice or fair to others who might want to participate. I also don’t see why two Council members need to be involved, and would prefer to see recommendations coming from a purely citizens’ committee. That would leave the whole Council free, on an equal footing, to then review and debate the recommendations at their own meetings. Item 7. Waiver of Special Event Permit Fees for Commercial Businesses Located on Balboa Peninsula, Mariners' Mile and West Newport The first paragraph of the proposed Resolution No. 2016-51 appears to include an extraneous fragment of an earlier wording which staff may wish to correct: “WHEREAS, commercial April 12, 2016, Council Consent Calendar Comments - Jim Mosher Page 8 of 9 businesses on Balboa Peninsula, Mariners’ Mile and West Newport and on have recently endured the impacts of necessary public utility and construction improvement projects;” [note: judging from the “Discussion” section of the staff report, this may at one time have read “in Mariners’ Mile, West Newport and on the Balboa Peninsula”]. I might also point out that although a vague public benefit is cited in the resolution, this seems to me, at least at first blush, to be a gift of public funds that was not anticipated as part of the public projects that are now said to necessitate it. It would seem to me that residents and visitors were also inconvenienced, and they are being offered no comparable compensation. Item 8. Employment Agreement with Police Chief It is good to see the Police Chief’s contract being given public attention, as have been the contracts of the former Police and current Fire Chief, but the staff report does not make clear why or if Council approval of it is actually required. My understanding of the City Charter is that the City Council is responsible for hiring the City Manager, City Clerk and City Attorney (per Section 600), as well as attorneys needed to assist the City Attorney (per the end of Section 602). The City Manager is presumably responsible for contracting with the other employees, and although the Council must approve many City contracts (per Section 421), that provision does not appear to apply to “any person in the employ of the City at a regular salary” (presumably as long as the salary is within the budget set by the Council). I do not believe the Council approves all employment contracts, so it might be good to clarify which regular City employment contracts need to be presented to the Council, and why. As well as for the resolution to reiterate why Council approval of this particular one is needed. Item 9. 2014-2015 Playground Improvements - Notice of Completion and Contract Termination for Contract No. 5855 The staff report does not make clear what, if any, additional costs will be incurred to do what, if anything, needs to be done to correct the unapproved materials that were apparently installed. Item 13. Citywide On-Call Painting Agreements The scope of services is confusing because under “Technical Specifications … Labor and Materials” (page 13-21) it clearly says that under their hourly rate the contractor is expected to supply all materials. But earlier, and quite reasonably, it implies under “Quality of Materials” (page 13-18), that the contractor will pass the cost of certain materials (which I assume includes the paint to be applied, and possibly other things) on to the City. Shouldn’t the contracts clarify which expenses are reimbursable and which are not? April 12, 2016, Council Consent Calendar Comments - Jim Mosher Page 9 of 9 Item 14. Purchase of Rescue Ambulance The $250,000 donation from the apparently anonymous resident who made this purchase possible seems extraordinarily kind, and deserving of greater recognition and notice than an obscure listing on the Council’s consent calendar. Shouldn’t this be on the regular agenda? Item 17. Budget Amendment to Accept a Check for $15,480.00 from the Newport Beach Public Library Foundation and Appropriate Funds to the Library’s Fiscal Year 2015/2016 Maintenance and Operation Budget I support the City’s acceptance of these gifts, and it is my further understanding that despite what one might guess from the item title, if the gifts are not spent in Fiscal Year 2015/2016, the monies will be retained for the purposes stated and (unlike other Council-approved budget allocations) not returned to the General Fund if not spent. How this dedication of certain amounts (but not others) within the General Fund works is one of the continuing mysteries of the City’s budget process. And the staff report makes that aspect no more obvious to me, since the Budget Amendment of Attachment C makes it appear the gifts are simply being added to accounts regarding which I believe any unspent balance remaining the end of the fiscal year is returned to the General Fund.