February 11, 2025, City Council Agenda Comments
The following comments on items on the Newport Beach City Council agenda are submitted by:
Jim Mosher ( [email protected] ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item VII. MATTERS WHICH COUNCILMEMBERS HAVE ASKED TO BE
PLACED ON A FUTURE AGENDA
The matter presented here is development of a proposal to restructure the City’s Aviation Committee. While that committee might well benefit from a restructuring, it should be noted that the root cause of its current dysfunction is not its current structure, but a failure to work within it.
That includes not filling vacancies and having last met on July 15, 2024.
Item 1. Minutes for the January 28, 2025 City Council Meeting The passage shown in italics below is from the draft minutes with a suggested correction shown in strikeout underline format. The page number refers to Volume 66.
Harp stated that as to Item 8 is not, case law allows charter cities to do things that general law cities cannot, so concern about a gift of public funds does not apply.” [See video. City Attorney Harp did not say that approval of Item 8 could not be regarded as a gift of public funds. He only said that the prohibition against making gifts of public funds did not apply to charter cities.1 The difference in meaning is substantial.] 1 The case law alluded to by City Attorney Harp, holding that charter cities are not bound by the California Constitutional provision prohibiting the state Legislature from authorizing gifts of public funds (Article XVI, Sec. 6), presumably includes Los Angeles Gas & Elec. Corp. v. City of Los Angeles, 188 Cal. 307 (1922) and Tevis v. City & County of San Francisco, 43 Cal. 2d 190 (1954).
That exemption from a restraint on the Legislature does not, however, automatically exempt charter cities from the Article XI, Sec. 10(a) prohibition against “a local government body” providing extra compensation for work already performed. It can be debated whether the Article XI, Sec. 5(a) power of charter cities to, with respect to municipal affairs, “supersede all laws inconsistent” with their charter is so sweeping as to allow it to evade even a Constitutional restriction that says it applies to all local agencies. But even if they could, neither our Charter nor our Municipal Code appear to contain any provision overriding Article XI, Sec. 10(a). And absent such a provision, the Council would not seem free to do something the state Constitution forbids, namely amending the CR&R contract to provide extra compensation for work already provided. Instead, that extra payment should have been regarded and identified as a voluntary gift outside the contract.
In my own comments, I mentioned a California Supreme Court opinion that, for public employment contracts, created a limited exception to the prohibition against retroactive adjustments to compensation.
The case in question is Jarvis v. Cory, 28 Cal.3d 562 (1980) which permitted adjustments in compensation retroactive to the date on which salary negotiations began or a prior employment agreement expired. But the reasoning was very specific to public employees and would not apply to other contracts, such as that with CR&R (if it did, Article XI, Sec. 10(a) would be meaningless).
In summary, there seems (shockingly) to be no law preventing the City of Newport Beach government from making gifts of the public’s funds. But there is a law, indeed a Constitutional mandate, preventing it from retroactively changing the compensation provisions of a municipal contract. And the voters would seem to have a right to expect their officials to respect that law.
Received After Agenda Printed
February 11, 2025
Written Comments
February 11, 2025, City Council agenda comments - Jim Mosher Page 2 of 4 Item 4. East Coast Highway and San Miguel Drive Pavement Rehabilitation
and
Evening
Canyon
Road
Drainage
Improvements
–
Notice
of
Completion
for
Contract
No.
8925-2
(23R11)
The Location Maps do not appear to include the “ pavement rehabilitation work at the intersections
of
Jamboree
Road
at
Bristol
Street
North
and
South
”
added
by
a
change
order.
Item 11. Financial Statement Audit Results and Related Communication
for
the
Fiscal
Year
Ended
June
30,
2024
As I commented to the Finance Committee at their meeting on January 23rd, the statement near the
top
of
page
11-17
that
Newport
Beach
has
a
“21-square-mile
harbor”
seems
suspect.
The
City’s Demographics and Statistics page indicates the “Harbor Waters” comrise just 844 acres or 1.3 square miles. As I also pointed out, in the organization chart on page 11-31, “Building & Fire Code of Appeals” should
be
“Building
&
Fire
Board
of
Appeals”
and
the
lines
suggesting
the
City
Clerk
and
City
Attorney
report
to
the
City
Manager
(rather
than
to
the
City
Council)
seem
a
little
misleading.
Item 12. Acceptance of the National Highway Traffic Safety Administration
(NHTSA)
Illegal
Passing
of
Stopped
School
Buses-High
Visibility
Enforcement
Pilot
Project
On agenda packet page 12-5, under “Reporting,” Attachment B says “ A deployment report template
is
attached
.”
But
it
is
not.
Seeing what the City is being asked to report would clarify what the City is expected to do in fulfillment
of
the
grant.
Item 13. Ordinance No. 2025-1: Granting Non-Exclusive Commercial Solid
Waste
Franchise
Agreements
The proposed ordinance refers in at least four places (pages 13-76 through 13-79) to an attached
Exhibit
“A,”
but
no
attachment
is
included.
I
assume
it
is
the
same
as
the
attachment
to
the
preceding
resolution.
Will
it
be
attached
to
ordinance
when
it
is
archived?
Also, at the end of Section 1 (page 13-76) the ordinance refers to “ The Franchisees' continuing obligations
pursuant
to
Section
23(J)
(Continuing
Obligations)
of
the
2017
Franchise
Agreement.
”
Do
these
new
franchisees
have
continuing
obligations
under
an
agreement
they
were
not
a
party
to?
Item 14. Resolution No. 2025-8: Amending the Schedule of Rents, Fines
and
Fees
to
Provide
a
Pass-Through
of
Credit
Card
Transaction
Fee
Charged
by
Third
Parties
Directly
to
the
Consumer
Not fully understanding how credit card transactions work, I am unable to understand what is being
proposed
or
what
the
language
to
be
adopted
(on
page
14-9)
means.
February 11, 2025, City Council agenda comments - Jim Mosher Page 3 of 4 I assume that when the City charges someone, say, $100, and the customer offers to pay the $100
by
credit
card,
the
City
receives
less
than
$100
due
to
processing
fees
charged
to
the
City.
Since Item 14 on April 23, 2024, staff has been authorized to correct for this by adding a 2.85% surcharge to the bill. In other words, if the bill was $100, the customer offering to pay by credit card
would
be
asked
to
pay
$102.85.
The present staff report indicates the transactions are not all the same, and the actual fee may be
more
or
less
than
2.85%
(although
it
doesn’t
say
how
much
more
or
less
it
might
be).
I suspect staff is seeking permission to adjust the surcharge to reflect the actual transaction charges
expected
in
a
particular
credit
call
billing
(assuming
the
City
knows
in
advance
what
the
charge
will
be?),
and
this
will
be
reflected
in
the
amount
the
customer
is
asked
to
pay
(as
in
the
example
above,
but
with
a
number
different
from
2.85%)
However, the proposed language I see on page 14-9 says “ 2.85%, or pass-through, as applicable
”
with
a
footnote
reading
“
When
the
City
is
charged
for
processing
the
credit
card
transaction,
the
City's
fee
to
the
customer
Is
2.85%
to
offset
the
cost
to
the
City.
When
the
customer
is
charged
directly
to
process
the
transaction,
the
fee
is
a
pass
through
directly
to
the
customer
.”
Both the meaning and intent of this is baffling to me. Doesn’t the staff report indicate the City is always charged a processing fee, so the surcharge would
always
be
2.85%
regardless
of
varying
fees?
How
does
this
address
the
problem
stated
in
the
staff
report
of
varying
fees?
And what does the second sentence mean? Under what circumstances is the customer, rather than
the
City,
charged
“to
process
the
transaction”?
How
is
that
charge
“passed
through”?
Why
would
the
City
be
charging
the
customer
a
“convenience
fee”
equal
to
a
cost
or
penalty
the
customer
is
privately
paying
their
creditor?
And what happens if there are charges borne by both the City and the customer? Which sentence
prevails.
If the intent is that “a convenience fee will be added to the bill so that the net payment received by
the
City
(after
correcting
for
third-party
processing
charges)
will
equal
the
amount
owed,”
it
would
seem
best
to
simply
say
that.
Even then, if every credit card customer may be charged a different convenience fee percentage,
will
any
of
them
know
in
advance
what
their
percentage
is?
Or
do
they
have
to
try
to
pay
by
credit
card
to
discover
what
their
bill
will
be?
I am also puzzled why, under “Noticing” on page 14-3, entities such as Southern California Edison,
Southern
California
Gas
Company,
and
AT&T
were
singled
out
for
mailed
notices.
While
I
appreciate
that
many
residents
of
Newport
Beach
make
private
payments
to
them
by
credit
card,
this
action
would
not
seem
relevant
to
that.
Do
those
utilities
make
payments
to
the
City
by
credit
card?
February 11, 2025, City Council agenda comments - Jim Mosher Page 4 of 4 Finally, under “Fiscal Impact,” the report says “ In fiscal year 2024, the City incurred approximately
$2.1
million
in
credit
card
processing
fees
.”
Has
this
number
been
corrected
to
reflect
any
recovery
resulting
from
the
2.85%
surcharge
authorized
on
April
23,
2024?
Should the present action not be taken, what would be the net annual processing cost to the City
if
just
the
fixed
2.85%
surcharge
on
credit
card
payments
were
fully
implemented?
Item 15. Resolution No. 2025-9: Approving a Request to Waive City Council
Policy
L-2,
Driveway
Approaches,
and
a
Coastal
Development
Permit
for
a
Duplex
at
3601
Lake
Avenue
not
hyphenated.
and
findings
in
Exhibit
"A"
”
(as
well
as
subject
to
the
conditions
in
Exhibit
B).
its
adoption
”
does
not
seem
accurate,
at
least
with
respect
to
the
validity
of
the
CDP.
This
property
appears
to
be
the
California
Coastal
Commission’s
appeal
area,
and
as
such,
the
CDP
does
not
become
effective
until
the
City
has
reported
its
action
to
the
CCC
and
the
deadline
for
filing
an
appeal
to
them
has
expired.
from
the
established
grade,
”
since
Table
1 on
page
15-4
says
the
highest
point
is
at
28’
8”.
referenced
in
the
preceding
Fact
C.2.
Item 16. Employment Agreement for City of Newport Beach Police Chief
The staff report refers to NBMC Section 2.24.100 (Selection of Fire and Police Chiefs), which says, among other things, that “ The City Manager shall appoint a member, or members, of the Board
to
serve
on
a
qualifications
appraisal
panel
within
the
qualifications
appraisal
process
”
(where “Board” refers to the City’s Civil Service Board). As best I can tell, neither the staff report nor the Agreement indicate if this happened, and if it did, which CSB members served on the qualifications
appraisal
panel.
The report also does not explain why staff is proposing a delayed effective date of February 22. Also, the Exhibit A (Police Chief Job Description) provided on page 16-20 is dated more than two
years
ago.
Are
the
salary
ranges
printed
on
it
still
current?