TOWN OF MORAGA
REGULAR MEETING
October 12, 2022
Rovember, 191% MINUTES
6:30 p.m. Regular Meeting
Council Chambers
35 Rheem Boulevard, Moraga, California 94556
CALL TO ORDER
The regular meeting was called to order at 6:34 p.m. by Mayor Steve Woehleke.
ROLL CALL
Councilmembers present: Mayor Steve Woehleke, Vice Mayor Renata Sos, and Councilmembers Mike McCluer and Teresa Onoda
Councilmembers absent: Councilmember Makker
2. PLEDGE OF ALLEGIANCE
Councilmember McCluer led the Pledge of Allegiance.
SPECIAL ANNOUNCEMENTS
Mayor Woehleke reported the Town Council had met in Closed Session prior to the regular meeting to conduct a performance evaluation of the Town Attorney. There was no reportable action as a result of the meeting.
4. PROCLAMATIONS AND PRESENTATIONS
There were no proclamations or presentations.
PUBLIC COMMENTS AND SUGGESTIONS
Jen Schnayer, Moraga, spoke to continued noise which occurred five to six nights a week at the Hacienda de las Flores, with the use of a disc jockey and drumming which had been worse than when the Town had operated wedding events at the Hacienda. The use of drumming was not permitted at the venue, and she questioned why the Town continued to ignore the concerns of the neighbors. She asked the Town Council to address the situation and reported events at the Hacienda had been allowed to continue past the time allowed, the disc jockey's audio was quite loud, and these issues had only increased over the past five years but had become worse since Wedgewood Weddings had taken over the operations of the Hacienda. She hoped the Town Council would address the situation before legal action had to be taken.
Dave Schnayer, Moraga, reported he had made a prior request for the Town Council and Town Manager to agendize a Noise Ordinance for a future meeting and had thought that would happen before the end of the year, although he questioned whether that would occur.
Mr. Schnayer also spoke to a request he had made about landscaping installed by the Town in the public right-of-way (ROW) in front of his property at the time of undergrounding of utilities Town Council Regular Meeting 1 October 12, 2022
along Moraga Road, and where the Moraga-Orinda Fire District (MOFD) had asked him to conduct maintenance and removal of such. He had since learned from a recent Lamorinda Weekly article that language he proposed to the Public Works Director/Town Engineer, to be considered as part of an Ordinance regarding landscaping in the public ROW, had been changed by the Town Council during its prior meeting. He objected as he believed there had been a lack of transparency in that process.
Mr. Schnayer also spoke to the recruitment of a new Town Manager and hoped the Town Council would not use the same recruitment firm it had used in the past to replace the last two Town Managers. He suggested there was an opportunity for a positive change in the Town Council and Town staff and he hoped the Town Council would be responsive to those who had elected them.
In addition, he was unaware the Town Council would be reviewing a contract with the Town Attorney. He suggested a Request for Proposal (RFP) for Town Attorney services be considered since the Town Attorney firm had been serving the Town a very long time and those services should go out to a public bid.
Town Manager Cynthia Battenberg clarified the Town Council had discussed consideration of a Noise Ordinance but because of the heavy agendas and the fact the Planning Department had legal deadlines to meet, this topic would be discussed by the Town Council in January 2023 as part of the Town Council Goal Setting process.
Mike McCluer, Moraga, speaking as a private citizen and a Moraga Rotary Member, provided an update on Moraga Community Service Day held on September 30, October 1 and 2, 2022, with 460 volunteers in an outpouring of community support. He highlighted the community participation and volunteer efforts to help the community with the largest project related to the Moraga School District's (MSD's) three elementary schools, where 155 family volunteers had conducted school beautification and other projects. He also identified the numerous members of the Community Service Day Steering Committee and thanked all volunteers and participants who had exceeded the expectations to help those in need, support local schools and beautify the Town. He reported this would become an annual community event.
6. ADOPTION OF CONSENT AGENDA
A. Acceptance of Consent Items
Consent Item 6.4 Proclamation for Free and Fair Elections was removed from the Consent Agenda.
PUBLIC COMMENTS OPENED
Mayor Woehleke reported no comments had been received for this item.
PUBLIC COMMENTS CLOSED
ACTION: It was M/S (Onoda/Sos) to adopt Consent Agenda Items 6.1, 6.2, 6.3, 6.5, 6.6 and
6.7. Vote: 4-0-1. Absent: Makker.
6.1 Receive Accounts Payable Claim for 09/23/22 ($250,802.68) Approved
6.2 Approve Minutes for the Special and Special Closed Session Approved Council Meetings on July 11, 2022
6.3 Continued Use of Teleconferenced Meetings Approved
Consider Resolution 79-2022 Approving the Continued Use Town Council Regular Meeting 2 October 12, 2022
of Teleconferencing for the Meetings of the Town Council and all Committees and Commissions Pursuant to the Provisions of Assembly Bill 361
6.4 Proclamation for Free and Fair Elections Removed
Proclamation Committing to Core Principles of Democracy: Free and Fair Elections
6.5 Electric Vehicle Charging Stations Ordinance Approved Consider Waiving the Second Reading and Adopting Ordinance 300 Amending Various Sections within Title 8, "Planning and Zodiance 2019-38 in yew apie 1. 13 Monia Tie
"Buildings and Construction" of the Moraga Municipal Code to Create Expedited Permitting Procedures for Electric Vehicle Section 65850.7 (CEQA Status: Exempt)
6.6 Landscaping in the Public Right-of-Way Ordinance Approved Consider Waiving the Second Reading and Adopting Ordinance 301 Amending the Moraga Municipal Code Title 12, Adopting Chapter 12.10 - Trees, Shrubs, Hedges and Other Landscaping in the Public Right-of-Way, Sections 12.10.020, 12.10.030 and
12.10.040 (CEQA Status: Exempt under CEQA Guidelines
Section 15061(b) (3)
6.7 Amendments to the FY 2022/23 CIP Budget Approved
Consider Resolution 80-2022 Approving 1s* Quarter-Year
Carryover Amendments to the Fiscal Year 2022/23 Capital Improvement Program (CIP) Budget Allocations
B. Consideration of Consent Items Removed for Discussion Proclamation for Free and Fair Elections
Proclamation Committing to Core Principles of Democracy: Free and Fair Elections
Mayor Woehleke explained he had removed the item from the Consent Agenda since it would commit the Town Council to follow through on an active resolution and allow the originator of the resolution the opportunity to present it.
PUBLIC COMMENTS OPENED
Renee Zeimer, Moraga, a long-time Moraga resident involved in local elections volunteering on local registration drives and working the polls since she was 12-years old, explained that it was election season. On behalf of Moraga voters and a coalition of more than 150 elections integrity and democracy defense non- and bi-partisan C3 organizations, she asked the Town Council to make a commitment to the Core Principles of Democracy: Free and Fair Elections since voters were at a point where reassurance was needed when entering the mid-term election season.
Similar proclamations had been approved by the Contra Costa County Board of Supervisors (BOS) and the City of Walnut Creek City Council, and other cities were moving forward to do the same. The BOS had agreed to place a copy of its resolution into the time capsule. The proclamation served as an accountability measure, a tool to debunk misinformation and an opportunity to reassure the public that with few exceptions local election officials were committed Town Council Regular Meeting 3 October 12, 2022
to conducting safe, reliable and fair elections, and election results and the peaceful transition of power were widely accepted with confidence and humility by elected leaders and candidates for office alike. With the Town Council's commitment to free and fair elections, the voters would know the lown Council placed a high value on protecting voting rights, integrity of election systems, defending outcomes and subsequent peaceful transfer of power, all necessary to preserve the republic.
Ms. Zeimer thanked the Mayor for recognizing the importance of bringing the resolution to the Town Council in a timely manner and for his guidance. She also expressed her appreciation for the work of Town Clerk Marty Mcinturf.
PUBLIC COMMENTS CLOSED
ACTION: It was M/S (Woehleke/Sos) to approve a Proclamation Committing to Core Principles of Democracy: Free and Fair Elections. Vote: 4-0-1. Absent: Makker.
7. ADOPTION OF MEETING AGENDA
PUBLIC COMMENTS OPENED
Mayor Woehleke recommended that Item 10C be considered prior to Item 9A, with the remaining agenda items to be considered thereafter.
Councilmember McCluer requested that Item 12 be considered after Item 8.
Vice Mayor Sos recommended the agenda be modified as follows: Consider Items 10C, 10A, 10B, and then Item 9A. When informed a speaker was present for Item 9A from the City of Sacramento, she amended her recommendation to consider Items 10C, 9A, 10A and 10B, with Item 12 to remain as shown.
PUBLIC COMMENTS CLOSED
ACTION: It was M/S (Woehleke/Onoda) to modify the meeting agenda and consider Items 10C, 9A, 10A and 10B, and with the remainder of the agenda as shown. Vote: 4-0-1.
Absent: Makker.
8. REPORTS
A. Town Manager Update - Town Manager Battenberg reported the Moraga Police Department had a Swearing-In Ceremony for four new Police Officers who had started in the last year and half including Lieutenant Steve Borbely, Officer Mason Bliss, Officer John O'Dell and Officer Kurt Ericksen. She also reported on the 2022 Pavement Rehabilitation Program with the contractor planning to have the work done this calendar year and with Town staff working with property owners who had curb, gutter and sidewalk repair work to complete.
Ms. Battenberg reported she had also been working with Wedgewood Weddings who planned to present an annual report to the Town Council. She had provided information and a review of Town records and an analysis to address the concerns that had arisen.
In response to the Town Council, Ms. Battenberg advised that an official letter documenting the Town's findings would be submitted to Wedgewood Weddings with a request that it address the residents' concerns, but she stated there had Town Council Regular Meeting 4 October 12, 2022
been no documented violations of the agreement with Wedgewood Weddings other than the playing of drums in one instance. She understood the agreement with Wedgewood Weddings identified the acceptable decibel level at 75 dBA at the property line and Wedgewood Weddings was working hard to keep the decibel level at 65 dBA and had been making adjustments in its operations to bring that level down. She understood there had been recent concerns with the bass inside the building and Wedgewood Weddings was working on its stereo equipment as a result. Staff had also become aware of concerns with the use of the disc jockey and that information had been shared with Wedgewood Weddings, which continued to make adjustments to its operations.
B. Mayor's and Councilmembers' Reports
Mayor Woehleke - Reported he had attended the Swearing-In Ceremony for the four new Town of Moraga Police Officers; participated in the Community Service Day at Mulholland Ridge trimming project for the fire trail, with the objective to turn the overgrown fire trail into something fire trucks could traverse and at the Rheem Elementary School project. He had also spent significant time and made a number of visits to the Hacienda during events, recognized the neighbors' concerns but found it was not a noise level but a noise intrusiveness issue. He had discussions with the President and Chief Executive Officer (CEO) of Wedgewood Weddings to make him aware of his perspectives and observations on this issue.
Vice Mayor Sos - Reported she had attended the Swearing-In Ceremony for the four new Town of Moraga Police Officers; participated in Community Service Day which had been a great experience and inspiring; and as the Chair of RecycleSmart had spent an incredible amount of time on the search for a new Executive Director for the agency and briefed the Council on the efforts and the hope that publicly available information would be available soon.
Councilmember McCluer - Reported he had heard from a number of different residents about noise from the Hacienda events and he looked forward to a discussion at a future Town Council meeting to address the residents' concerns.
He also understood the City of Orinda had not implemented an Inclusionary Housing Ordinance into its Housing Element and was in a study mode given concerns with impacts to developers, and since there were other ways to support affordable housing. He had also attended the County Connection Board and County Connection Operations and Scheduling Committee meetings and briefed the Council on the discussions.
Councilmember McCluer then expressed his appreciation to Karl Davis for his service on the Planning Commission and wished him well on his new job. In addition, he had attended the Moraga Chamber of Commerce Board meeting and briefed the Council on the new Boardmembers and status of the Art Walk and Community Faire.
Councilmember Onoda - Reported she had attended Candidates' Night and she thanked the Moraga Citizens' Network (MCN) for sponsoring the event and Saint Mary's College (SMC) for hosting; attended the Moraga Youth Involvement Committee (MYIC) retreat; RecycleSmart committee meeting; and met with SMC Executive Vice President and Provost, Dr. Corey Cook, to discuss possible partnerships. She had also received input from neighbors of the Hacienda and had provided a response.
Councilmember Makker - Absent
Town Council Regular Meeting 5 October 12, 2022
10. ORDINANCES, RESOLUTIONS AND REQUESTS FOR ACTION
C. Recruitment and Selection of a New Town Manager
Discuss the Process for Recruitment and Selection of a New Town Manager and Consider Resolution _-2022 Establishing a Town Manager Ad Hoc Committee Ms. Battenberg thanked the Town Council for the honor of serving the community for the past almost five years, which had been a challenging and rewarding experience. She suggested they had accomplished a lot, made great strides in the Town's finances and infrastructure and she was proud to have served with the amazing team of Department Directors. She also advised that she was retiring from full-time city management.
Mayor Woehleke reported he had been interfacing with the Town Manager for almost five years and stated the Town would be losing someone who would be difficult to replace. The Town Manager and her team had made enhancements across the full range of local government Moraga.
Vice Mayor Sos commented that the news of the Town Manager's resignation had been upsetting and created a challenge, but with every challenge there was an opportunity and in this case the Town could build on what the Town Manager had created, a strong infrastructure, financial stability and accountability. She found the Town Manager had built one of the best staff teams in the Bay Area and the Town of Moraga was fortunate since that legacy would help them rise to the challenge in hiring, developing and mentoring terrific staff members. The Town Council was aware of how hard staff worked day in and day out behind the scenes, which would not be lost in whatever process was adopted.
Councilmember McCluer congratulated the Town Manager for reaching this point in terms of her retirement and for her five years with the Town.
Councilmember Onoda recalled her pleasure on meeting the Town Manager when initially interviewed for the position and stated her expertise would be missed. She recognized Town staff had to wear many hats, were a team, and family which the Town Manager had created and she thanked her for that.
Mayor Woehleke described the agenda item and explained that the Town Council would make a series of decisions and take action starting this evening to begin the Town Manager recruitment process that should be completed in approximately four months, with the assistance from the Town Attorney's Office that had the expertise and experience in recruiting Town Managers. The Town Attorney would make a presentation, the Town Council would have the opportunity to ask questions and the public would then provide comment. After closing the public comment, the Town Council would discuss the decision-making and short-term planning.
Town Attorney Michelle Kenyon presented the staff report and recommended the Town Council discuss the process for recruitment and consider the resolution establishing a Town Manager Recruitment Ad Hoc Committee included in Attachment A to the staff report.
Responding to questions from the Council, Ms. Kenyon clarified:
• The Town Council Protocols required three affirmative votes from the five-member Town Council on any action taken. An Ad Hoc Committee for the recruitment of the Town Manager would not be taking any action or making decisions but would offer Town Council Regular Meeting 6 October 12, 2022
recommendations, which would be more expeditious since the Town Council could receive a recommendation at its October 26, 2022 meeting on who the Ad Hoc Committee had spoken to, interviewed or recommended for the Town Manager recruitment firm.
Recruitment firms tended to have access to the same applicant pools, would speak to all Councilmembers and create a profile for an ideal Town Manager candidate. The cost for services for recruitment firms were similar and generally ranged between $30,000 and $35,000 dependent upon the firm. What the Town Council should look for in a recruitment firm was responsiveness, availability and fit with the Moraga Town Council. (Woehleke) • In addition to the options detailed in the staff report, another option could be for the entire Town Council to consider the recommendation for a Town Manager recruitment firm, and while that process may take more time than the Ad Hoc Committee process, Special Town Council meetings could be considered between now and December 13, 2022, but it would be up to the entire Town Council whether it wanted to make that commitment to such an aggressive schedule. Staff acknowledged that scenario would allow the Town Council to remain on the same timeline as staff had identified in the staff report for the Ad Hoc Committee process. (McCluer)
• The formation and charter of the Ad Hoc Committee was a panoply of all of the options and tasks the Ad Hoc Committee could perform as outlined on Page 2 of the staff report, but if there were tasks the Town Council did not want the Ad Hoc Committee to perform, they could be removed from the proposed resolution. The tasks of the Ad Hoc Committee could be as broad or as narrow as the Town Council desired. (McCluer) When the recruiter began the recruitment processs, regardless of whether or not there was an Ad Hoc Committee, the recruiter would be in contact with each Councilmember individually to determine the profile in establishing the job qualifications and most important characteristics of a Town Manager. (McCluer)
• Whether the entire five-member Town Council or a two-member Ad Hoc Committee, the same process could be conducted, although differently, and it was a question of expediency and efficiency and economics. A five-member Town Council meeting was open to the public and transparent, whereas a two-member Ad Hoc Committee was not open to the public but the ultimate decision on the product would involve an open meeting and the public would have the opportunity to review the Town Manager recruitment brochure to be prepared. The public could also provide comments and/or suggestions, and the recruiter would take those comments and finalize the brochure and distribute it.
The Town Attorney believed the process could be transparent even with an Ad Hoc Committee. (McCluer)
• The process for an Interim Town Manager was up to the Town Council. There were different options that could be considered including an Ad Hoc Committee process or scheduling a Closed Session for the Town Council to interview candidates and make a selection. (Onoda)
PUBLIC COMMENTS OPENED
Mayor Woehleke reported there were no comments from the public.
PUBLIC COMMENTS CLOSED
Councilmember Onoda supported the Ad Hoc Committee process due to time. She also expressed the desire to serve on the Ad Hoc Committee since she had gone through four Town Town Council Regular Meeting 7 October 12, 2022
Managers and was experienced with the process as a member of the RecycleSmart Committee, which process had served that agency well.
Councilmember McCluer commented that the Town Council was elected to make the important decisions for the Town, with the most important decision being who should be the next Town Manager, which in his opinion should involve the five-member Town Council. An Ad Hoc Committee, as outlined in the staff report, would provide a substantial amount of authority for two Councilmembers to have conversations and make decisions that would come back to the Town Council, which he didn't believe was best for the Town. He suggested public meetings were more beneficial for transparency and input and while an Ad Hoc Committee would bring recommendations to the Town Council, things would have already been decided before a recommendation was made to the Town Council
The Ad Hoc Committee may also recommend Interim Town Manager candidates to the Town Council, which Councilmember McCluer opposed. He would rather see the five-member Town Council make that decision. He suggested additional Special Town Council meetings could be scheduled and the Town Council could still meet the timeline of the Ad Hoc Committee process.
Vice Mayor Sos explained that the job of the Town Council was to find the best candidate in a transparent, rigorous but efficient process. She suggested an Ad Hoc Committee was the way to go since it satisfied all of those requirements. She supported the resolution with modification to the Scope of Authority/Duties of the Ad Hoc Committee as follows:
Interview executive search firms and make a recommendation to the Town Council; work collaboratively with the search firm to develop the candidate profile outreach brochure and recommend to the Town Council those materials for approval; and consideration of acting and/or interim appointments and recommendation to the Town Council.
Mayor Woehleke stated based on his professional experience with a large number of recruitment exercises using recruiters, there had been a focused process with one or two people who were the focus, and oftentimes it had involved a direct supervisor. He acknowledged the concerns raised by Councilmember McCluer but was concerned with a process for all five Councilmembers without any ability to streamline, which could be unworkable since people may not be available for the additional meetings that may be needed. He questioned whether the Town Council must settle on the scope of the duties of the Ad Hoc Committee at this time and rather have that scope of duties defined by the next Town Council meeting scheduled for October 26, 2022, which would allow the Town Council to take action at that time.
Vice Mayor Sos stated they had to do two things in short order, retain a search firm and start the process of finding an Interim Town Manager. At a minimum, an Ad Hoc Committee could be created to help with those things so at the October 26 Town Council meeting a presentation could be made on one or more search firms for Town Council approval, with a potential list of Interim Town Managers when the Town Council could then provide guidance.
Mayor Woehleke suggested the scope of duties could be better defined between now and the next Town Council meeting.
Ms. Kenyon noted that if the Town Council wanted the Ad Hoc Committee to work to make a recommendation to the Town Council on an executive recruitment firm for the October 26 Town Council meeting, it needed to appoint the Ad Hoc Committee members tonight.
Mayor Woehleke questioned that direction since any two Councilmembers may make a recommendation to the five-member Town Council and was informed by Ms. Kenyon that Ad Hoc Committees may only be created for a limited purpose, and in order to be legal, the limited purpose had to be described. The purpose of the Ad Hoc Committee could be limited to simply Town Council Regular Meeting 8 October 12, 2022
interviewing and making recommendations on recruitment firms to be brought back to the Town Council for the October 26 Town Council meeting.
Ms. Battenberg referenced Town Council Protocol 4.3, Ad Hoc Committees which had indicated the Town Council shall provide direction at the time of the creation of Ad Hoc Committees to identify the composition, scope of authority, duties, expected output, report back schedule, term, staff liaison and budget, if any.
In response to the Mayor, Ms. Kenyon confirmed an Ad Hoc Committee could be created for two weeks and the scope could be created in any manner the majority of the Town Council agreed upon. A resolution was not needed, and that direction could be done by motion. She clarified the creation of Ad Hoc Committees for recruitment purposes were not normally as formal as a resolution, but a motion could be made by the Town Council to appoint two people from the Town Council to work with the Town Manager and Town Attorney to solicit proposals and make a recommendation. For the October 26 Town Council meeting, there would be a staff report, not from staff or the Town Attorney, but from the Ad Hoc Committee.
Mayor Woehleke clarified he did not want to take action to modify the scope of duties at this time since he found it was not fully thought out and had not taken Councilmember McCluer's concerns into account.
Councilmember McCluer supported the idea of an Ad Hoc Committee to interview executive search firms and make a recommendation potentially to the Town Council at its October 26 Town Council meeting. At that time, the full authority of the Ad Hoc Committee could be discussed.
Councilmember Onoda also supported that direction.
Ms. Kenyon advised that procedurally a motion was required by the Town Council to form an Ad Hoc Committee. A second motion would be required to describe the scope of the Ad Hoc Committee and another motion was required to appoint members to the Ad Hoc Committee.
Vice Mayor Sos offered a motion, seconded by Councilmember McCluer to appoint an Ad Hoc Committee to interview, screen and assess potential recruiting firms and bring back to the Town Council a recommendation ideally at the October 26, 2022 Town Council meeting if not shortly after for Town Council approval.
Mayor Woehleke requested an amendment to the motion that as part of the report to the Town Council at its October 26 meeting there be identification of all recruiting consultants interviewed.
The maker of the motion and the second accepted the amendment.
ACTION: It was M/S (Sos/McCluer) to Appoint an Ad Hoc Committee to interview, screen and assess potential recruiting firms and bring back to the Town Council a recommendation ideally at the October 26, 2022 Town Council meeting, if not shortly after, for Town Council approval and with the report to the Town Council to identify all recruiting consultants interviewed. Vote: 4-0-1. Absent: Makker.
Vice Mayor Sos suggested the Ad Hoc Committee members should be comprised of the Mayor and Vice Mayor and Councilmember Onoda accepted that recommendation.
Mayor Woehleke offered a motion, seconded by Councilmember Onoda to appoint the Mayor and Vice Mayor as the members of the Ad Hoc Committee.
Town Council Regular Meeting 9 October 12, 2022
On the motion, Councilmember McCluer supported the members of the Ad Hoc Committee for a limited focus but objected to the rationale the members of an Ad Hoc Committee should be the Mayor and Vice Mayor.
Vice Mayor Sos clarified her recommendation for members was not the office itself, but whoever was sitting as the Mayor and Vice Mayor.
ACTION: It was M/S (Woehleke/Onoda) for the Ad Hoc Committee to consist of Mayor Woehleke and Vice Mayor Sos. Vote: 4-0-1. Absent: Makker.
9. PUBLIC HEARINGS
A. Flavored Tobacco and Electronic Smoking Devices Ordinance Conduct a Public Hearing and Consider Waiving the First Reading and Introducing by Title Only an Ordinance Amending Chapter 7.24 (Restrictions on the Advertising, Sale and Promotion of Tobacco Products) of Title 7 of the Moraga Municipal Code (Health and Safety) to Prohibit the Sale of Flavored Tobacco and Electronic Smoking Devices
Chief of Police Jon King thanked Moraga Police Officer Fabiola Hernandez and Assistant Town Attorney Denise Bazzano for their assistance in updating the Ordinance. He provided a PowerPoint presentation on an Ordinance to Prohibit the Sale of Flavored Tobacco and Electronic Smoking Devices and explained that the Ordinance would amend Chapter 7.24 (Title 7 - Health and Safety); provide updated definitions, eliminate outdated advertising language and reference to a Contra Costa County Ordinance that had been repealed, strengthen language regarding attended sales, prohibit the sale of flavored tobacco products and electronic smoking devices and non-sale distribution of tobacco products, and allow administrative penalties rather than all violations being misdemeanors, as detailed in the staff report.
Chief King also highlighted Senate Bill (SB) 793 (2020), Flavored Tobacco Products and Proposition 31, to be considered on the November 2022 ballot, that would ban the sale of flavored tobacco products and tobacco product flavor enhancers, but which included an exemption for Hookah tobacco, loose-leaf tobacco and cigars. Similar prohibitions in other Contra Costa County cities were identified as well as the results of a 2019/20 Tobacco Survey (Healthy Kids Survey) and other factors that had been taken into consideration of this Ordinance amendment.
Chief King recommended the Town Council waive the first reading and introduce the Ordinance as reflected in Attachment A to the staff report.
Responding to questions from the Council, Chief King and Assistant Town Attorney Bazzano clarified:
• There were five tobacco retailers in the Town of Moraga that currently sold flavored tobacco products and the electronic smoking devices and liquids. If there was a ban on these products, there was still the ability to purchase the products online and an adult could purchase the products in a jurisdiction where it was allowed. The Town of Moraga had no control over online sales. (Sos)
During a recent Orinda City Council meeting, concerns had been expressed that people could drive out of Orinda and into Moraga to purchase these products. The cities of Lafayette, Orinda, Walnut Creek and most of unincorporated Contra Costa County had banned the sale of these products. (Sos)
Town Council Regular Meeting 10 October 12, 2022
• The Department of Justice awarded the Town of Moraga a $460,000 grant to pay for a police officer for three years. Moraga Police Department staff had spoken with the administrators at Campolindo High School about doing some educational outreach and had met with the County Health Department. The City of San Pablo also had a good diversion program for tobacco violations and the Moraga Police Department would be reaching out to the City of San Pablo to determine whether a similar program could be implemented in Moraga. (Sos)
• SB 793 did not regulate online tobacco sales but defined a tobacco retailer as a person who engaged in the State of California in the sale of tobacco products directly to the public from a retail location. (Sos)
• If the Ordinance was adopted, it would prohibit the sale of flavored tobacco and electronic smoking devices for persons of any age but not prohibit the sale of tobacco cigarettes to those 21 years and older. (McCluer)
• Currently purchasers of any tobacco products must be 21 years of age or older, although staff acknowledged users under 21 years of age had purchased these products. One benefit of the tobacco grant the Moraga Police Department received was that they could work with the Town's merchants to ensure they were wholly educated on the laws for the sale of these products. Staff believed that eliminating these products reduced the possibility of minors purchasing the products. Staff was also believed the Town was not overstepping with this Ordinance due to the issues around these products and that the Town would be conforming with Ordinances in other Lamorinda cities and with Contra Costa County itself. (Woehleke)
PUBLIC HEARING OPENED
Kurosh Ghassem, owner of the Arco Gas Station, acknowledged that while flavored tobacco could be considered a gateway drug and although he sold electronic smoking devices at his establishment, signage had been posted that people must be 21 years or older with identification required. He pointed out electronic smoking devices and tobacco cigarettes had their bad sides and while he could do nothing about the proposed ban on those products, based on his observation, menthol cigarettes were being purchased by those between 30 and 40 years of age and not younger. Flavored smoking devices were more attractive to those who were younger but those 21 years or older could still purchase cigarettes.
Mr. Ghassem questioned a ban on flavored tobacco and electronic smoking devices since they provided an alternative to those of age who may desire to use the products rather than smoking regular cigarettes. In his opinion, once the ban was in place, patrons who had purchased the products to be banned would likely purchase a pack of cigarettes instead. He noted that 99 percent of the youth patronizing the gas station attended college and not Campolindo High School and were of age to purchase the products to be banned. Rather than a ban, he suggested the Town spend more time on a solution. He also commented that the black market for e-cigarettes would increase once a ban was in place which would likely impact minors.
Hayley Hodges, Sacramento, representing the National Association of Tobacco Outlets and all tobacco retailers in the Town, commented that while many other cities in the State had enacted a ban on the sale of flavored tobacco and electronic smoking devices, there had been no mention of the devastating impact on small retailers with such bans resulting in a loss of revenue and threatening the livelihood of the businesses and their employees. Those bans not only harmed the retailers, but also harmed products that had been approved by the Food and Drug Administration (FDA) as a legal way for adult smokers to transition off of traditional tobacco cigarettes to a less harmful product. The FDA had rejected seven million flavored tobacco Town Council Regular Meeting 11 October 12, 2022
products and those remaining on the shelves had been thoroughly evaluated and approved by the FDA. She believed that removing those options from adults was not only detrimental to their ability to quit smoking cigarettes but was an overreach of government authority.
Ms. Hodges believed youth were not purchasing flavored tobacco products from legitimate businesses such as the retailers in Moraga, but from friends, family, online and from Tik Tok. She stated the products online had no regulations, verifications, came from foreign countries and were more dangerous than the products that could be purchased in the stores. She suggested the ban would only boost the illicit markets. In addition, banning the products in the Town would harm the local economy. There was also a statewide referendum that would decide the fate of flavored tobacco products in November, and she asked that this decision be left to the voters of the State of California. If the ban was adopted, she urged the Town Council to consider delayed enforcement to at least January 1, 2023, as the City of Antioch had done as part of its ordinance.
Myra Lopez, Project Director, Contra Costa Health Services, Martinez, explained that tobacco, if used as intended, killed its user and led to 46,000 deaths per year in tobacco-related illnesses.
Removing the sale of flavored tobacco and electronic smoking devices from retailers in the Town of Moraga, particularly since some were within close walking distance to Saint Mary's College (SMC) Rheem campus and Campolindo High School, would reduce the exposure to tobacco marketing and reduce the accessibility of the products to Moraga youth. She noted there was also a State law related to the online purchase of tobacco-related products which required the purchaser to be of age, verified with a signature.
Ms. Lopez added that the United States Postal Service (USPS) and United Parcel Service (UPS) had also banned the delivery of vaping products. The 2019/2020 Student Tobacco Survey data had shown that 50 percent of Contra Costa County youth vape users reported they were paying for vapes, and 26 percent reported they had purchased the vapes from the store themselves. The numerous flavors available masked the harsh taste of the tobacco and youth were being lured into a lifetime of addiction which often led to the dual use of other substances. One JUUL pod could contain the same amount of nicotine as a packet of cigarettes and youth could go through two to three pods per day. Due to pressure from the tobacco industry, flavored tobacco products such as disposable e-cigarettes were unregulated and those sales had increased. The goal of County Health Services was equity for all, particularly the most vulnerable such as youth prone to nicotine addiction.
Ms. Lopez reported over 300 municipalities had enacted restrictions on the sale of flavored tobacco, many of which were located in Contra Costa County, which had not included any exemptions for certain products and whose Ordinance closed the loopholes left by the FDA.
PUBLIC HEARING CLOSED
Mayor Woehleke asked the Police Chief if Proposition 31 were to pass whether the Ordinance would be required to be modified and was informed by Chief King the Ordinance would not change as local jurisdictions were allowed to pass laws that were more restrictive, as reflected in the whereas clauses of the resolution of approval contained in Attachment A.
Ms. Bazzano also clarified the biggest distinction between SB 793 and the Town of Moraga's Ordinance would be the exemptions. The Town's Ordinance did not include the exemptions contained in SB 793. The author of SB 793 had attended a recent meeting in the City of Foster City and had recommended that jurisdiction adopt its Ordinance without exemptions since he had to make concessions to allow exemptions.
Chief King reiterated the Town's Ordinance would provide updated definitions, eliminate outdated advertising language and reference to a Contra Costa County Ordinance that had been repealed.
It would also strengthen language regarding attended sales, prohibit the sale of flavored tobacco Town Council Regular Meeting 12 October 12, 2022
products and electronic smoking devices and non-sale distribution of tobacco products and allow administrative penalties rather than all violations being misdemeanors. The Town's Ordinance also addressed electronic smoking devices, which had not been included as part of Proposition Vice Mayor Sos asked why a ban was the better way to go rather than invest in resources for the enforcement of the 21-year age limit.
Chief King commented they were removing it from the equation with the prohibition of the specific products and, given the resources of the Police Department, they could not cover all the retail locations that would have to be covered in terms of enforcement of the age limit. He emphasized that part of the grant the Town had received would allow the development of a diversion program which was not part of the Ordinance. Also, it was a concern anytime flavors were added to diminish or mask the flavor of the tobacco, with some of the flavored cartridges carrying potentially as much nicotine as a packet of cigarettes. When users used more than one cartridge a day, that carried significant health impacts.
Mayor Woehleke asked whether the 30-day period for enforcement could be extended to year- end, to which Chief King agreed that could be a middle ground to provide assistance to the businesses in the Town.
Mayor Woehleke asked the Chief of Police to provide value level on the proposed Ordinance on a scale of one to ten. Chief King explained that some jurisdictions had included a licensing component to their Ordinances but, in consultation with the Town Manager, a decision had been made not to include that provision. He commented that a map from County Health Services had shown the Town of Moraga as one of few jurisdictions in the County that had not addressed this issue and he suggested the Ordinance was important to make a statement that this was an important issue to the health and safety of the community. In his opinion, the Town should take a stand to protect the youth of the community and this was one way that could be done.
In response to Councilmember Onoda, Chief King reiterated the City of San Pablo Police Department had created an effective Juvenile Diversion Program that he hoped to piggy-back on.
Additionally, most jurisdictions had included a licensing component in their Ordinance, which included an inspection requirement. As part of the tobacco grant the Town had received, the Police Department would continue its education efforts, conduct stings as the Department of Alcohol and Beverage Control (ABC) had done for alcohol sales violations and publicize the effort.
Councilmember Onoda suggested eliminating the source was the right way to do this given the need to protect the youth in the community. She thanked Chief King, Ms. Bazzano and Officer Hernandez for their hard work.
Councilmember McCluer supported the Ordinance.
Vice Mayor Sos agreed that given the input from staff and from County Health Services that this was what should be done. She was open to extending the effective date of the Ordinance to January 1, 2023 in recognition of the need for retailers to deal with their inventory.
Mayor Woehleke commented that despite the increased amount of nicotine in an electronic cigarette, he was concerned this action could lead to some youth going to tobacco sooner rather than later, with smoking having a larger impact on one's social interaction than vaping. He also suspected that youth would find alternative sources to purchase the products, but he agreed to move forward. He hoped that through the Ordinance, education and other means, the use of tobacco could be decreased. He agreed that the effective date should be extended to January 1, 2023.
Town Council Regular Meeting 13 October 12, 2022
Councilmembers Onoda and McCluer also supported extending the effective date to January 1, 2023.
ACTION: It was M/S (Sos/Woehleke) to Waive the First Reading and Introduce by Title Only an Ordinance Amending Chapter 7.24 (Restrictions on the Advertising, Sale and Promotion of Tobacco Products) of Title 7 of the Moraga Municipal Code (Health and Safety) to Prohibit the Sale of Flavored Tobacco and Electronic Smoking Devices, subject to the following revision to Attachment A:
and effect on January 1, 2023.
Roll Call Vote: 4-0-1. Absent: Makker.
Mayor Woehleke declared a recess at 8:42 p.m. The Town Council meeting reconvened at 8:50 p.m. with all Councilmembers present.
10. ORDINANCES, RESOLUTIONS AND REQUESTS FOR ACTION
A. Pension Rate Stabilization Program
Receive a Presentation on Section 115 Trust Accounts, a Pension Stabilization Program, by Public Agency Retirement Services (PARS)
Ms. Battenberg reported that during the September 28, 2022 Town Council meeting, the Town Council had discussed the possibility of setting aside $1.5 million from the Palos Colorados Fund for future pension liability, with staff to return with more information. Public Agency Retirement Services (PARS), the main provider of the Section 115 Trust Accounts, was present to provide a presentation. In terms of next steps, the Town Council had discussed staff coming back at the October 26, 2022 meeting to enter into an agreement with PARS and staff could work with PARS and HighMark Capital Management on an investment strategy, to be brought to the Audit and Finance Committee (AFC) for input and then come back at the December Town Council meeting.
Rachael Sanders, Senior Manager, and Kevin O'Rourke, PARS, introduced themselves. Ms.
Sanders provided a PowerPoint overview presentation on the PARS 115 Trust, Pension Rate Stabilization Program (PRSP). She identified the background of PARS, which worked exclusively with public agencies to design, implement and provide ongoing administration of retirement plans geared towards saving monies and reducing liabilities. She highlighted the PARS-IRS, Approved Section 115 Trust, a vehicle for segregating agency funds from general assets for the purpose of funding essential governmental functions that could be used to set aside monies to meet future pension contributions or liabilities.
Ms. Sanders also identified the current 115 Trust clients in the State of California and provided an extensive overview of the PARS PRSP for prefunding pension obligations and explained that taking this step would smooth out pension rate volatility, offer hedge against inflation, provide a fiscal tool in the Town's financial toolbox and prepare today for tomorrow's pension realities.
Responding to questions from the Council, Ms. Sanders clarified:
Fees would be paid out of the plan assets (60 basis points paid out over 12 months, five basis points per month) with the Portfolio Manager to determine what worked best for the Town, such as less stock exposure for the short term or more stock exposure if the Town was considering long term, with the Portfolio Manager to share the return expectations. (Sos)
Town Council Regular Meeting 14 October 12, 2022
• In terms of the five investment strategies, the Town may start with one and consider another and PARS had some agencies that had done that. The Town was not locked into the initial strategy chosen, although the Portfolio Manager would likely discourage changing strategies too often. (Sos)
• The PARS team would work with the Town's timeline in terms of its investment strategy.
Initially, the Portfolio Manager would meet with staff members, discuss the objectives for the program, discuss the options and ultimately make a recommendation. Sometimes the next step involved bringing forward that information to a Finance Committee or possibly even the Council. The timeline may vary depending on the steps taken after the initial conversation. (McCluer)
• The driving factor for a recommendation on an investment strategy was typically time horizons and in conversations with Portfolio Managers when recommending an investment strategy the Town would be asked at what point it would need to tap into the trust. If in the next three to five years, a more conservative or moderately conservative approach may be recommended. If a jurisdiction did not need to tap into the trust for ten years, as an example, a balanced or capital appreciation approach may make more sense, but it all depended on the needs for the funds. (Onoda) • A moderately conservative approach would involve a balance between bonds and stocks and international and US bonds, with the Portfolio Manager to provide information on what the portfolio was comprised of when conversations with the Town were held, and with the funds to be fully diversified and invested, a requirement of the 115 Trust. (Onoda) • Once the 115 Trust was set up and funded to a certain level, funds could be added, there was no set contribution and any agency could set up what it wanted. (Woehleke) • The California Public Employees' Retirement System (CalPERS) was another option for the 115 Trust, and was the main provider of the Town's investments, investing the Town's monies, with PARS another way to invest with a different firm not subject to the CaPERS Board of Investments. CaPERS did not have Internal Revenue Service (IRS) approval on its 115 Trust as PARS did, and PARS had a private letter ruling that spoke to the tax exempt status of any earnings on the assets in the 115 Trust. CaPERS only offered two investment choices versus the five investment choices with PARS. Also, CalPERS' program had been around for less time than PARS, and PARS had outperformed the CaPERS Other Post-Employee Benefits (OPEB) Trust. In addition, PARS had legal assurance and mutual indemnification whereas CaPERS only had sole indemnification. (Woehleke)
• PARS worked with all agencies large and small, some had put in less than $10,000 to start and PARS had worked with agencies that had put in hundreds of millions of dollars.
There were no limits to entry, with PARS offering a catered and flexible program. The same setup process would be offered regardless of the size of the jurisdiction, although for some of the very large agencies PARS preferred to have more frequent meetings since there were such large assets in the trust, with meetings quarterly rather than annually although PARS did meet quarterly with some of its smaller agencies as well. (Woehleke) The main PARS offices were located in Orange County and Newport Beach, California with some branches on the East Coast and two agencies in Arizona that had recently joined. (Woehleke)
PUBLIC COMMENTS OPENED
Town Council Regular Meeting 15 October 12, 2022
Mayor Woehleke reported there were no comments from the public.
PUBLIC COMMENTS CLOSED
Councilmember McCluer commented he had been researching this topic for the past four years with no easy way out of the CalPERS unfunded liability situation. PARS had been the most recommended tool that could be used. He liked the process laid out but he wanted to see the Town accelerate the December meeting into November since the stock market may allow a great opportunity for the Town. Also, the Feds would be meeting on December 1 and December 10, 2022 when interest rates may again be raised and it was good to be ready.
Ms. Battenberg was uncertain the Town Council could schedule an earlier meeting date given the Town Council would have one regular meeting in November and a Special Meeting a week later.
She asked whether the Town Council would be willing to forgo advice from the AFC on this topic.
Councilmember McCluer stated that would work for him or the AFC could hold a meeting just prior to a Town Council meeting.
Vice Mayor Sos thanked PARS for the presentation and urged the Town to work with all deliberate speed on an agreement that could be approved at the next meeting, although she sought input from the AFC.
Mayor Woehleke suggested it was premature to make decisions and he suggested the AFC should be asked to provide input. He was supportive of setting up the 115 Trust with PARS, although the status of the stock market in the next six months was unknown. He was also supportive of the staff proposal to set up an agreement that could be considered at the next meeting of the Town Council which could be diligently progressed.
Councilmember Onoda also sought input from the AFC which was in the position to provide recommendations to the Town Council and she looked forward to the AFC's input.
Vice Mayor Sos commented on her understanding an agreement with PARS was intended to be brought back to the Town Council at its October 26 meeting, with the AFC to meet thereafter on the investment strategy and then the AFC would provide a recommendation to the Town Council.
Councilmember McCluer reiterated he had hoped for a more aggressive schedule to take advantage of the stock market declines.
Mayor Woehleke thanked Ms. Sanders for the presentation.
B. Comprehensive Advanced Planning Initiative
Receive a Status Report and Updated Schedule on the Comprehensive Advanced Planning Initiative (CEQA Status: Exempt)
Planning Director Afshan Hamid provided a PowerPoint presentation on the update of the Comprehensive Advanced Planning Initiative, which included a revised schedule included as Attachment A to the staff report and which was highlighted at this time.
Responding to questions from the Council, Ms. Hamid and Ms. Battenberg clarified:
• Staff had spoken with Housing Element Consultant Barry Miller Consulting extensively and staff was of the opinion they had the resources to complete the tasks identified, with the Town Attorney's Office a critical resource. The consultant team consisted of five different agencies with specialized teams working on different components and working Town Council Regular Meeting 16 October 12, 2022
on all of the documents concurrently with a budget for each task. Some of the projects were ambitious with a January 2023 deadline, but when reaching the end of the year, with special meetings and holidays, and with the complications of the Environmental Impact Report (EIR) more time was needed, as reflected in the revised schedule.
Staff was confident the knowledge base would not be lost, and staff was leveraging the Housing Element consultant and the consultant base. Staff emphasized that the resources in the Planning Department were very strained and the Department had little bandwidth and was working hard to get the work done. (Woehleke) • The Town of Moraga had submitted its Housing Element to the State Department of Housing and Community Development (HCD) on August 12, 2022 and had been one of the first batch to submit its Housing Element. HCD had 90 days to submit comments to the Town pursuant to state law. Staff expected a formal meeting with HCD with identification of the areas in the Housing Element that needed to be addressed. Staff had learned the biggest issue with HCD, as related to Southern California Housing Element submittals, was the Affirmatively Furthering Fair Housing (AFFH) requirement and HCD had been requesting additional analyses and policies to be tied to AFFH, which was an area where staff expected comments to occur. (Sos)
PUBLIC COMMENTS OPENED
Mayor Woehleke reported there were no comments from the public.
PUBLIC COMMENTS CLOSED
Councilmember Onoda recognized the size of the project and the aggressive schedule which had to be modified. She commended staff for all of their hard work, particularly the work of the Planning Director.
Vice Mayor Sos thanked the Planning Director for the update and suggested the upcoming stakeholder meeting with developers made sense given the discussion about an Inclusionary Housing Ordinance and density bonuses, and the stakeholders were the group the Town had to hear from.
Councilmember McCluer also thanked the Planning Director for the update, understood the challenges with the limited resources in the Planning Department and the need to lean on the Housing Element Consultant along with the need to be flexible as they moved forward. He too was pleased with the upcoming stakeholder meeting with developers, a meeting he planned to attend, and he appreciated the priorities that had been identified in the staff report.
In response to Councilmember Onoda, Ms. Hamid clarified that one of the items in the second tier of the Advanced Planning Initiative was parking adjustments the Town Council had previously discussed where the current regulations required single-family parking requirements even if in a multifamily or commercial family zone. Staff had been trying to delineate the requirements and be more responsive to the different anticipated needs of the Town. The Town Council had previously provided direction to staff on this topic and staff would take that direction forward.
Mayor Woehleke also commended staff for taking the effort to a good level of planning.
11. DISCUSSION ITEMS
There were no Discussion Items.
Town Council Regular Meeting 17 October 12, 2022
12. COUNCIL REQUESTS FOR FUTURE AGENDA ITEMS
There were no Council requests for future agenda items.
13. COMMUNICATIONS
There were no communications.
14. ADJOURNMENT
ACTION: It was M/S (McCluer/Onoda) to adjourn the meeting at 9:45 p.m. Vote: 4-0-1.
Absent: Makker.
Respectfully submitted by:
Bash Abas
Yashin Abbas, Interim Town Clerk
Approved by the Town Council:
Kello
Renata M. Sos, Mayor
Town Council Regular Meeting 18 October 12, 2022