On the City Council Agenda, March 19, 2013
Although the Special Meeting originally scheduled for 4;30 PM was cancelled, the Tustin City Council may still have a busy schedule ahead.
It’s that time of year, again, as labor leaders line up for negotiations. Although councilmembers are scheduled to discuss the state of negotiations, I’ve been told the first meeting with labor has not taken place yet. These talks are probably to discuss what would be acceptable. In recent history, the police associations have been willing to change their pension plans for new hires and for all members to pay more into their retirement while foregoing raises. Changes to state law this year will mandate other changes for retirement. As far as raises go, all employees should be reminded the Chief received a 5% raise to make sure he doesn’t go elsewhere. Should the rank and file get the same?
There is only one Public Hearing which the city staff are asking to be continued. As we recall, this item was continued once before. Apparently, they haven’t stacked the deck enough in Community Development Director Elizabeth Binsack’s mind after the Fairbanks debacle. Still no draft to peruse. We would like to see this published several days before the meeting it is to be heard at as we are sure it holds the interest of more than a few of our residents.
One thing that can be said for this city council, they certainly don’t want to be bothered with the details. The rest of the agenda, save for a couple of items, consists of the consent calendar where some of the items clearly deserve discussion if not for clarity’s sake then the sake of the residents who foot the bill. Alas, I guess this is the result of having zero stipends for the boys.
Item #4, Authorization to Sell an (Housing) Authority-Owned Affordable Home, certainly deserves open discussion. The staff report recommends allowing the Authority Director to set the price and conduct closed session meetings with proposed buyers “in order to receive Commission approval” for the sale. Fine, except the public will not know any of the details of the purchase until after the fact. That includes the purchase price and proposed buyer. Surely, this should be public knowledge so we will know what we are getting and to insure the buyer is truly qualified. Apparently, the city seems to think the purchase and sale of publicly owned property should automatically be conducted behind closed doors. In this case, we think it should be in public view.
Item #6, an Agreement with Municipal Auditing Services and Approval of Resolution 13-13 should also be up for discussion. The proposed resolution would turn over public records of business licensees to a private firm (we call this outsourcing) for collection activities. According to the description, MAS would be allowed to perform collections of delinquent business licenses, audit current business licenses, and “engage in the discovery of unlicensed businesses.”
According to the staff report, the business license division consists of one employee. Rather than add staff, the city suggests outsourcing the investigation of businesses to make sure they obtain a license prior to doing business in the city. The target for these investigations is, obstensibly, the millions of dollars in lost license fees the city incurs when transient businesses such as plumbers and delivery services transact business within city limits. So, rather than rely on the past practice of concerned citizens calling in reports on errant businesses, the city has decided to hand this task over to a private collection agency at a whopping 40% commission fee. It should be noted that at least one business takes issue with their alleged witch hunt activities. Perhaps the staff should do a bit more research themselves before contracting with this company. Oh, and what happened to our RFP process. If this is a valuable contract, isn’t the city required to publish an RFP?
We have a better idea.
How about saving the commission and assigning this task to Code Enforcement officers. Tustin PD patrol could also be on the lookout for suspicious plumbers and convey that information to Code Enforcement as well. If the task is too great to assign to code enforcement, perhaps they should rethink the additional staff. Laughably, the staff report says the reason staff want to outsource this is to maintain Tustin’s “business friendly” atmosphere by insuring all businesses are correctly taxed. I doubt using a collection agency with the authority to conduct witch hunts using city resources will convey that positive feeling. The city council should send this proposal back to the drawing board.
Item #11, City of Tustin Strategic Plan 2013-2018, has been an on-again, off-again project of the city council. Discussion of this plan has taken up way to much time cosidering there is nothing new at all in this. One has to wonder if the city council actually paid for this plan considering it appears to be a template of dozens of plans of other cities and companies across the country. And, as with most strategic plans of this type, it is mostly a feel-good piece of publicity that does not address the core of issues related to the city. Although Management Partners, the true authors of the plan, did their research, they found severe issues with the city’s operations citing alienation of the school district and civility of the city council along with poor succssion planning as examples of what the city lacks. The proposed strategic plan simply says they will fix those things by being better. It should be interesting to see how fast this gets swept under the carpet after approval (Oh, come on, you know they will approve it).
Conference with Legal Counsel 2 each Initiation and Exposure to Litigation
Public Employee Performance Evaluation City Manager, Jeff Parker and City Attorney, David Kendig. We remind the City Council that any proposal for raises for Parker or change in services for Kendig require public discussion.
Labor Negotiations – All Public Employee Unions and Non-represented employees.
Conference With Real Property Negotiators – Three properties on Tustin Legacy MCAS property.
Ordinance to Amend Hearing Officer Guidelines – Postponed to Aporil 16th City Council Meeting.
Authorization to Sell Affordable Home – Located at 14554 Newport Ave., #3 by the Housing Authority Commission.
Second Amendment to Rental Agreement – Warehouse building used by National Office Liquidators to increase the amount of space rented at market price.
Approval of Agreement With Municipal Auditing Services – To provide collection services for business licenses.
Approve Agreement For Information Technologies Services Network Migration Project– Funding was appropriated to upgrade the computer and telephone system in City Hall.
Regular Business Items
City of Tustin Strategic Plan– Approve Strategic Plan developed by Management Partners. Plan durations 2013-2018.
Removal of Commissioners From Office Upon Running For City Council – Directs staff to devise a proposal for resignatin/removal of commissioners and timetable for their replacement.
On The City Council Agenda, February 19, 2013
There’s not much to get excited about on the Tustin City Council agenda this week. It is nice to see an agenda without the usual City of Tustin v. TUSD closed session item. In fact, there are no current lawsuits listed for discussion and only the usual two each, initiation and exposure to, litigation. There are also two liability claims (precursors to lawsuits) under consideration.
One item on the Closed Session Agenda does deserve scrutiny, the performance evaluation of the City Attorney, David Kendig. Since taking over from predecessor Doug Holland, Kendig has displayed less than stellar performance, in our view. Both lawyers hail from the Law Office of Woodruff, Spradlin & Smart which has handled the city’s legal affairs since 1995. At one time, we lauded the city for continuing to use the firm for legal guidance, particularly with Holland as the chief representative. We had high hopes for Kendig but he has proven that he is more of a panderer than an attorney. He quickly aligned himself with the right side of the dais and has since become entrenched. He has given questionable advice and, in some cases, has blatantly attempted to mask wrongdoing on the dais with opinion that doesn’t come close to proper legal advice.
That said, we have a few new/old faces on the council who, hopefully, will take a focused look at this attorney’s off-track decisions. Continued use of Kendig should go against the grain of each councilmember who ran on an open-government-transparency ticket in the last election. In fact, it is perhaps time to take a look at the contract law office as a whole.
There is at least one item on the Consent Calendar that should be discussed openly before the city council. City staff are recommending that Notices of Completion for capital improvement projects be allowed to be filed “administratively”. This means the city council would not necessarily be aware that projects have been completed. While staff call this “streamlining”, we would call it an improper delegation of authority by the city council who should be kept apprised of the status of all projects involving city funds. We recommend the city council pull this item for discussion and vote.
Other than these items, it should be a pretty easy meeting for the city council. That will give the three amigos more time at their favorite watering hole after the meeting.
Conference with Legal Council – Two each, exposure to and initiation of litigation.
Public Employment- Performance Evaluations of the City Manager and the City Attorney.
Liability Claims- Consideration of claims of Carlos Cortez and Gresel Montes.
Conference with Real Property Negotiators- 3 items, all on the MCAS property.
Specific Pan Amendment – 2012-02 MCAS Tustin Specific Plan – The 9th or so amendment to make what appears to be minor changes in language and items of the plan for clarification.
Adopt Resolution Ordering Preparation of Engineer’s Report- Tustin Landscape and Lighting District levy of annual assessments for FY2013-2014 – Tustin Ranch.
Adopt Resolution Authorizing Director of Public Works or City Engineer- to accept capital improvement projects and complete and file Notices of Completion.
Terminate Contract for Annual Catch Basin Insert Cleaning- The contracted company has given a notice they have gone out of business. This is an interim measure until a new RFP can be advertised.
Office Lease Extension- Successor Agency offices located at 245 Centennial Way. Perhaps we should look at eliminating an unnecessary expense and bringing these staff back to city hall.
Urban Area Security Initiative Grant- A portion of $3.6 million dollars is available for response to acts of terrorism. This is the annual re-authorization of the Chief of Police as the official representative for the UASI Grant.
Can We Have A Do Over?
It didn’t take long for the newly seated city council to stir things up and create a little controversy while violating the Brown Act at the same time. Tuesday’s Tustin City Councill meeting demonstrated their ignorance when it comes to conducting city business. Of course, John Nielsen wasn’t there to guide them and it was left up to Mayor Murray to carry the ball. We did not expect much from Murray and that is what we got.
Chad Ortlieb, an Orange city planner and Old Town Tustin resident who previously spoke on the subject of the Wilcox Manor, showed up during public comments to complain about the apparent gross errors of the Fab 5 in handling the continuance of the Wilcox Manor CUP application last meeting. If you recall at last month’s meeting, Ortlieb appeared to question whether any type of event center was appropriate for the Old Town residential neighborhood. His discussion at that meeting generated a flurry of activity on the dais as councilmembers, looking like Keystone Cops, raced for the door saying they had to recuse themselves from any discussion. It also raised with us, at the time, the question of why the item would be continued for eight months. It was pretty obvious to us the reason the councilmembers were in such a hurry to exit the dais.
So, Ortlieb came back this month to ask the question we have wondered all along: Why an eight month delay? He also asked a few other questions concerning the validity of the application itself and whether city staff were playing footsie with the applicants to accommodate them. To their credit, this time the city council remained in their seats. From Ortlieb:
The rights of Tustin residents to have the council decide the continuance of the Wilcox Manor project were violated. At one point, in the meeting, councilmember Gomez asked the city attorney. ‘Does this item require action?’ The city attorney’s response was, ‘No. It’s already been agendized as continued’. Staff did not have the right to remove the continuance from the council’s consideration. The consideration is exclusively the council’s purview. If you want to take a look at Government Code section 94955, I think that’s a good starting point. But, to ask the question, can the city council continue something to a date, but have staff continue it for the council without any direction by the council? The answer is, no. Had the project been advertised differently, without staff saying it’s continued, a different public attendance and public participation could have resulted. The council had the right to deny the continuance request and even a right to make a decision on the project at that meeting. For the record, I don’t believe that a continuance to September is reasonable. Confusing matters is that, even though there was no quorum, the council, applicant representative and staff all conducted council business and spoke regarding the project. But, nobody else from the public was extended that opportunity. One of the attorneys present should have noticed the lack of a quorum. Also, just to pose the question, why did the applicant attorney show up if the matter was continued automatically by staff?
Ortlieb goes on to say the project should be re-noticed and advertised to the public with the city council subsequently deciding what, if any, extension will be allowed. He went on to say that the use [as a non-profit venue] was never allowed in the type of zoning the residence is in to begin with. He also stated that staff should never have considered the CUP as the type of venue is not allowed. “Staff should not be allowed to set land use policy of this magnitude even for a non-profit use.” Ortlieb further said the consideration by the city council was improper in the first case. Even though the original CUP went before the city planning commission, the applicants substantially changed the application request before it landed in front of the city council. That, according to Ortlieb, meant the application should have gone before the planning commission one more time.
Of course, we agree. As we had pointed out, Linburgh McPherson and Michael Demoratz, the trustees and owners of the Wilcox Manor, have misled the city during this entire adventure. They originally told the planning commission they had set up off-site parking when, in fact, they had done nothing of the sort. They amassed huge support at the planning commission meeting last year by busing in representatives from non-profits that had used the facility. The trouble is, most of those non-profits were from outside of the city where parking, trash and crowds would have no impact on them. The fact that several councilmembers have directly benefited from the use of the facility for fundraising as well, was not lost on the many residents who reside near the Manor.
The primary issue at this point was whether the staff had the right to automatically continue a matter before the council, on behalf of the council. We don’t think they did. We never got a good look at the audience for last month’s meeting but it seems to us that, even if one person who wished to speak was there, they should have been given that opportunity before a continuance was granted. Eight months is a long time for a continuance and, quite frankly, it appears as though the city council majority (we won’t count Gomez in this) was hoping that the lapse in time would allow them to return a favorable vote for the owners without raising eyebrows. To that effect, the city attorney bumbled his way through some sad explanation that it would be right for the councilmembers to recuse themselves, thereby eliminating the ability to act on the matter, but that one of the conflicted could subsequently return to the dais after drawing straws. How could there not still be a conflict for that councilmember? Better to have required a new application.
Ortlieb was left standing at the podium as the good Mayor thanked him for speaking and sent him packing. It should be interesting how concerned citizens react when the CUP is brought before the city council in September. As we told you before, we aren’t going anywhere and we plan on reminding our readers when the issue comes up again. At the very least, the city council should take a hint and refuse to hear the highly-modified CUP application when it comes before them. What should really happen is the applicants should be directed to start from ground zero with the city planning commission. The planning commission, of course, should research the issue as we believe Orlieb is correct in his assertion that the type of events McPherson and Dmoratz have been holding, have been illegal all along.
On the City Council Agenda, October 16, 2012
It should be a busy night for the Tustin City Council as the clock counts down to election day and a new council makeup. Heading the list on the Closed Session are the usual suspects along with a few liability claims and a conference with real property negotiators on two items. Also, expect a couple of items to be pulled from the Consent Calendar for further discussion.
The council should pull Item 3, Completion of the Frontier Park Fitness Element so councilmembers can give kudos to each other for the work and praise our staff for the fine job in getting this completed. It is a nice addition to the park.
Item 6 is a Response to a recent Grand Jury report on the demise of redevelopment agencies and the implementation of successor agencies to manage debt. The city was required to make a response to three of the findings and four of the recommendations regarding oversight and costs. The city’s response, which starts on page 38 of the staff report, basically says, “Yeah, we know we didn’t have the proper amount of oversight but, trust us, we did the right thing.” OK, but we wonder if the grand jury will be happy with that response. To their credit, they have since formed the required Oversight Board as required.
Item 8, regarding environmental insurance for the Tustin Legacy Project may raise some eyebrows. We are not sure how this one passes muster as council should have been foreseen that insurance would be required. After the budget process, staff are now recommending a $700,000 outlay for the insurance from undesignated Legacy funds. The way the city went about this, it seems like a little subterfuge was involved.
Under Regular Business, Item 10, is the second reading of the ordinance that will amend zoning for housing owned by Redhill Lutheran Church. Although one resident expressed concern over the impact of traffic and parking, we noted that the church has been using these houses and the storage as adjuncts to the church for some time. This ordinance will simply change the zoning to allow the church to come into conformance of zoning laws. As far as we know, there was no opposition from the neighbors in regard to how Redhill Lutheran was using the houses. If the public or a councilmember does not pull this item for discussion, it will be a simple vote of the council.
Item 11, City of Tustin Strategic Plan 2012-2017, is a big-ticket item. We first wrote about the strategic plan when Mayor Nielsen outlined it as one of his priorities during his term. In August, we reported that Management Partners, a consulting service with expertise in the field, produced a report that criticized the city fathers for, among other things, maintaining a poor relationship with TUSD, and not enough cooperation and civility between city council members.
The staff report from City Manager Jeff Parker, attaches the MP product to an outline of the strategic plan with key components addressed. There is a lot here to take in and we don’t know if the city council would actually implement the plan as outlined. There is a lot of discussion about demonstrative leadership, fairness and integrity that will be difficult for this council to accept. There is also that issue of transparency in government. While the city complies with all laws regarding transparency, there is no will to go above and beyond. An exception to that is the recent decision to continue to publish city meeting agendas in advance and make them available to the public under the Brown Act. A better response, however, would be to see this codified in a sunshine ordinance (along with lobbyist registration).
Another topic of discussion is Respect. Well, OK. It seems, for the most part, our current city council has a problem with that. The exceptions are Al Murray and Beckie Gomez, whom I have never observed being disrespectful of anyone, resident or colleague. As to the other three, well they give us a lot to talk about here on OTT.
Among other things, the Strategic Plan discusses working collaboratively with other agencies on mutual interest issues. They specifically call out TUSD on this. They also recommend providing a method for obtaining feedback and “strengthen our partnerships with the community.” This includes communicating the outcomes of the strategic plan to the community. We’ll see how that works.
A critical part of the plan, to our minds, is the establishment of succession planning for professional staff. With the city council’s inane approval of a golden parachute for 37 city employees, including the city clerk supervisor, a vacuum has been created that will take some effort to fill. The plan addresses this, albeit after the fact, by establishing training and creating an internal leadership academy. This is a proven idea that works but we will see if the city is willing to do what it takes to establish true succession planning.
Likewise, with the change in attitudes necessary for the council to stop bickering and move on with the business of the city. One of the implementation plan items is to “Promote and enhance a strong culture of ethics.” The plan falls short by simply giving the same old tired response of providing required ethics training and training on how to cultivate a culture of ethics. Hint to MP: you can be ethical and a jerk at the same time. Just ask John Nielsen. Perhaps the newly seated council will see the value in treating everyone with consideration.
One of the most useful items in the strategic plan document is the environmental scan that begins on page 29. This really gives a snapshot of Tustin in relationship to the rest of the county. It shows that we are in above average shape overall.
All in all, the Strategic Plan is a good read and deserves the consideration of the City Council. But, the plan is just that- a plan. That is, until the city council and the city manager make a genuine effort to implement it.
Item 14 on the agenda is a response to Councilmember Deborah Gavello’s request for an anti-lobbying ordinance. While Jerry Amante pointed out that Gavello was targeting him and his new job, the idea of a sunshine ordinance that would incorporate lobbyist registration and the publishing of councilmember calendars should be a priority to any city that touts transparency. The staff report on this item refers to the state law limiting lobbying efforts by councilmembers and city managers for the first year after leaving office. It also specifically states that state law does not preclude local agencies from adopting policies or ordinances that are more restrictive. We are disappointed that neither the City Manager, Jeff Parker, nor the City Attorney, David Kendig, recommended enhancing state law with an ordinance or, at the least, a strong policy that would open city council dealings to the public.
The final item on the agenda is a response to Mayor John Nielsen’s goal of establishing a stronger and better defined reserve fund for the city. We never argue with rainy day funding, especially when it is established to support infratstructure and emergency situations the city may face. Kudos to Nielsen for establishing this as a goal. We have to wonder why it was not addressed until well after this year’s budget was approved.