INBOX: Debating Measure EE

(re: “My Turn: Yes on Measure EE,” NB Indy, 10/12:)

Marian Bergeson has a long and distinguished record of involvement in the political fabric of our community.

In view of this record, it was particularly disturbing to find her seeking to defend Measure EE largely by marginalizing those with an opposing viewpoint. She brands them as “activists” – as if holding an independent opinion about the working of our government were a bad thing.

In addition, contrary to her suggestion, the only two specific changes called to our attention by Bergeson seem to me to be particular reasons to vote ‘no.”

First, she says we need to change the Charter to “stop potentially abusive practices such as red-light cameras.” Even those who think such protection needs to be placed in the Newport Beach Charter would at least expect the proposed change to be a clear and well-crafted one.

It is not: just try to read it.

The end of the incredibly long and cobbled central sentence is missing. This is indicative of the general lack of diligence in preparing Measure EE, and for those who feel the City Charter – the people’s contract with their government – should be treated and revised with care, that alone should be sufficient reason to vote “no.”

Second, without citing any specific example of their abuse, Bergeson applauds the proposed ban on the citizens’ right to file class claims against the City. She seems not to realize the California Government Claims Act of 1959 consolidated and preempted the many local claims procedures in place at the time, and Newport Beach voters made the required changes to Charter Section 1114 in 1966.

The Legislature’s authority to preempt the field has since been blessed by the California Supreme Court and interpreted to allow class claims.

Now, the City Attorney’s Office is asking us to test the legal waters by banning class claims. This misguided attempt to lead the nation in establishing a position that cannot be defended could potentially cost millions in attorneys’ fees. This is bad policy and a waste of money.

Again, at least to me, this alone is sufficient reason to vote “no” on Measure EE.

For information about problems with the 36 other proposals that compose Measure EE, please visit my website at NewportChaterUpdate.wikispaces.com .

Jim Mosher

 

Earlier this year, I was appointed to serve on the Citizen’s Charter Update Committee by the City Council. As someone who has been a conservative, political activist since I was a young child, I welcomed the opportunity to get involved with my own city to help make our local government more efficient and effective.

My first observation was just how many outdated and inefficient provisions were embedded in our City Charter. Provisions requiring 208-page documents to be printed in the newspaper, requirements on where in the council chamber the city manager was to sit, and provisions for a board of education that have long ago been made obsolete are three examples.

Working off of a list of needed changes prepared by City Manager Dave Kiff, our committee methodically considered each of these proposed modifications.

My second observation is how much time is taken up by a small group of gadflies who object to everything the City Council tries to do and, indeed, objected to the work of our committee and are now leading the campaign against Measure EE. Despite being shown to be wrong on the facts by the city attorney or the city manager, they continue to assert arguments that just are not true.

I have a new appreciation for the patience of the City Council to continue to listen to these people week after week. Recently one of them said publicly, “I actually don’t believe in an efficient city government.” Based on their testimony to our committee, that part at least is very true.

My goal in serving on the committee was to develop recommendations that improved the functioning and efficiency of the city and protected city taxpayers against abuse and catastrophic losses. Class-action lawsuits are one way our otherwise strong city could see its high level of reserves depleted by greedy special-interest lawyers.

Measure EE does not increase compensation for councilmembers or anyone else; it augments the conflict-of-interest provisions with the extensive provisions of the state government code, and it protects taxpayers against class-action lawsuits.

Important to me, it eliminates provisions that require unnecessary costs such as publishing documents that are now available on the city website. This will save tax dollars.

I am proud of the work done by the Citizen’s Charter Update Committee and I urge you to join me in voting Yes on Measure EE.

David L. Bahnsen

 

Measure EE is a proposal to change 38 sections of the City Charter in a single measure versus separating them out and voting on them individually as many other cities do.

Many of the changes proposed by Measure EE could be harmful to our community.  Here are just a few:
Section 1114 (Claims and Demands) – This change would prohibit residents from bringing Class Action lawsuits against the City.  Such a change could help to make our City Officials LESS responsive to our Community and may result in taxes and fees being forced upon us without sufficient recourse.
Section 421 (Contracts, Execution) – Changes the Charter to give power to ANY city employee to bind the City to contracts – a power currently held only by the City Council and City Manager.
Section 608 (Illegal Contracts, Financial Interest) – Changes the Charter to impose lesser restraints on local Public Officials than State Law when it comes to Conflicts of Interest.  This change is particularly alarming when considering many of our sitting Councilmen are either being investigated for violating Conflict of Interest laws or have been warned by the State for Conflict of Interest violations punishable by fines should they happen again.  And despite the City’s awareness and failure to adequately investigate or disclose that the Charter Review Committee Chairman Paul Watkins had been mired in an alleged conflict of interest controversy during the previous ten months wherein he hid his business interests from the public, he was allowed to participate and vote on this very change of Financial Interest.
Other Proposed Changes – The City Charter has long prohibited the City Council from being paid anything other than reimbursement of expenses for their services. Yet Council has been collecting pay, health and retirement benefits.  Entitlement to compensation, full health and retirement benefits for their part-time service is highly questionable.  Rather than explaining the problem and offering possible solutions, voters are only being given the choice of ratifying the current questionably legal practice.

There are many more issues in this Measure EE that are problematic for our community if this measure is passed. So I urge  you to vote “no” on Measure EE.

Robert Rush

 

As a former mayor, city attorney and member of the 2010 Charter Update Commission, I have followed with interest the debate on Measure EE.

Measure EE was developed by a Citizens Charter Update Committee chaired by Paul Watkins with recommendations approved by the City Council after receiving input from our citizens. Measure EE contains meaningful provisions aimed at improving the functioning and efficiency of our city. In addition, Measure EE includes taxpayer protections against red-light cameras and class-action lawsuits.

I support Measure EE, and I particularly support the additional Charter protections against class-action lawsuits. Class-action lawsuits in most cases result in providing little financial return or benefit to the class of plaintiffs, but generate big legal fees for enterprising lawyers who develop the theories to support the class that purports to have suffered some common wrongdoing.

It is important to note that defending class-action litigation and potential settlements that may result from the lawsuits can be excessive and threaten the financial security of our city. Recently the town of Mammoth Lakes went bankrupt. The cause was not pensions, reduced tax revenue or excessive debt. Mammoth Lakes was the victim of a massive legal judgment against it.

A similar judgment nearly bankrupted the city of Half Moon Bay.

The opponents of Measure EE have said that prohibiting class actions may restrict citizens’ rights to recover damages from the city. This is not true because nothing in Measure EE prevents anyone from filing a legitimate claim against the city or from suing for damages. The city attorney has strongly stated the need and importance of this provision in light of recent class-action litigation involving other communities.

The City Charter was written for the most part in the 1950s. We must update the Charter from time to time in order to stay current with the dictates of modern times. We as residents would be foolish not to incorporate the maximum protection possible against out‑of‑control class-action lawsuits that can threaten the high level of municipal services we enjoy in Newport Beach.

For this important protection – and other city governance efficiency provisions contained in Measure EE – I urge to vote Yes on Measure EE.

Dennis O’Neil

 

In his letter to the editor (NB Indy, 10/19), Dennis O’Neil, a well known local attorney, former mayor, former councilmember, and former City Attorney, urged us to vote “yes” on Measure EE. O’Neil cited Measure EE’s proposed ban on class-action lawsuits and class claims as a primary reason to vote for the measure. He noted that two cities, Mammoth Lakes and Half Moon Bay, suffered multimillion-dollar losses as a result of claims.

Unfortunately, for O’Neil and Measure EE, these were individual claims, albeit large ones. Mammoth Lakes reneged on a development agreement and was sued by the developer who signed the agreement. Half Moon Bay paid as a result of flooding caused by a public works project. At many meetings, the City Attorney and City Manager have assured us that Measure EE doesn’t apply to such claims. It seems O’Neil disagrees.

Whoever is right in this intra-Measure EE supporters dispute, why would residents who would be the class members give up their right to join a class against an illegally imposed city fee. For instance, if the city illegally charged businesses, say, $5 more than required for a business license fee, surely the businesses would want to come together to recover that overcharge.

Or if the city overcharged residents 10 percent on their water bills, surely residents would want the right to band together to recover this overcharged amount. Because the amounts may be small, an individual claim may not be worth it. But collectively, city residents and businesses can recover fully their loss from such illegal fees.

Moreover, the City Attorney’s office wrote: “[t]his proposal originates from a recent California Supreme Court decision involving the City of Los Angeles.” The cited case is Ardon v. City of Los Angeles (2011) 52 Cal.4th 241. The City Attorney’s office further wrote in the June 15, 2012 email from Mike Torrez to the Charter Update Committee:

“The Court held that, ‘[c]lass claims for tax refunds against a local government entity are permissible … in the absence of a specific tax refund procedure set forth in applicable governing claims statute.” (Id. at 253.)”

There is nothing here about banning class claims. Indeed, it is this administrative “specific tax refund procedure” which could exclude a class from recovery. The Ardon case does not stand for a wholesale ban on class claims.

I have repeatedly said that such a ban is preempted by state and federal law. Also, it is likely unconstitutional because it violates both the state and federal constitutional guarantees of our right to petition the government and the courts. Neither the City Attorney nor O’Neil have argued against this.

Really, do you want to spend millions of dollars bankrolling a City Attorney attempting to defend this ill-advised proposed amendment against attorneys representing valid claimants?

I don’t. I’m voting “No” on Measure EE. Please join me.

Robert C. Hawkins

 

(Re: “Red Herring Cameras,” NB Indy, 9/7:)

For some time now, Irvine resident and Allan Mansoor Field Representative Scott Peotter has taken to the pages of the Independent to make various attacks on the city of Newport Beach and its City Council, most recently suggesting we are “pimps and panderers.” So much for the civility and high level of discourse at the Indy.

As the editors of the Independent are keenly aware, Scott’s articles have been rife with inaccuracies, falsehoods and outright self-serving, partisan flacking. For example, you may remember the column where he purports to provide independent “analysis” of the candidates in the recent assembly race before concluding (surprise!) to endorse his boss, Mansoor.

Before moving to Irvine, Scott resigned from the Newport Beach Planning Commission amid criticism related to his failed home remodel in the Port Streets. It is important to know Scott’s residency, background and employment to understand the motivations for his attacks on the city.

Now to the substance of his comments on Measure EE, a collection of proposed charter amendments recommended by a citizen’s committee of Newport Beach residents.

The current charter provides for “reimbursement for expenses” for council members but provides a specific amount that is completely unrelated to actual expenses. They get no more or less depending on actual out-of-pocket costs. This amount is indexed for inflation and is completely incalculable by average residents as it is currently stated in the charter.

Why is council compensation characterized as expense reimbursement? Well, we really don’t know, but it started in 1958, before the Kennedy tax cuts, when income tax rates were in the 70 percent range. It was amended in 1980, prior to the Reagan tax cuts, when tax rates were still more than 50 percent. Of course, deductions and exemptions were more liberal then, as well. My guess is that the council was trying to characterize its compensation so as to make it exempt from federal income taxes.

I don’t know if that scheme worked, but today, no matter what the charter says, the IRS calls it compensation, it’s reported on a W-2 form and it is fully taxable. Measure EE updates the listed amount so that residents can see what is actually being paid, and properly characterizes council pay for what it is.

What it does not do is increase council compensation in any way, or have an impact on health insurance, which has been provided since 1974.

Because we only have the opportunity to amend the charter every two years, I asked that a prohibition against the use of red-light cameras be added. Red-light cameras are an insidious revenue-raising technique, sold to cities by private vendors who participate in the profits. In this age of “no new taxes” they are often an irresistible option for cash-strapped cities. Costa Mesa, for example, has used them.

Measure EE is based on a similar amendment adopted by Anaheim in the last election cycle. It should be noted that our opponents, in their ballot statement argue that red-light cameras “may be beneficial to our city in the future.” That is why we are banning them today.

Read Measure EE for yourself and support these common-sense amendments to save taxpayers money and make our city more efficient.

Until recently, our local newspapers were part of the fabric of the community and contributed to our civic betterment. Today, they are becoming bulletin boards for partisan hacks with a personal axe to grind.

Until this year, our local legislators and their staffs, such as Assemblyman Don Wagner and, well, everyone who came before him, worked with the city and its residents to solve problems and enhance the community. Assemblyman Mansoor’s policy of allowing his staff to engage in name-calling attacks on local city councils is a strange way indeed to represent his district.

Keith Curry

Mayor Pro Tem

In Keith Curry’s Sept. 14 response to Scott Peoter’s ”Red Herring Cameras” (NB Indy, 9/7), he expresses concern with inaccuracies and falsehoods in the column.  He uses his response to promote his “prohibition of red light cameras,” which he introduced to the City Council at the last minute, (July 10 Study Session, when the Charter revisions were up for Council approval) without any prior notice, or review by the Charter Update Committee, and without any staff report or public discussion.

He states: “It should be noted that our opponents, in their ballot statement argue that red-light cameras “may be beneficial to our city in the future.”

No, Curry is in error.

What apparently he is purposely misinterpreting is the following statement, referring to prohibition of red-light cameras: “It is missing essential words and may preclude future technological advances beneficial to our city.”  The pro argument (in the voter pamphlet) refers to “any red light camera or other automated traffic enforcement system.”  The opponents feel the last part of this sentence “other automated traffic enforcement system” is too inclusive.  The City of L.A. recently reported that cameras (not red light) at a train/auto crossing on the Blue Line have saved many lives.

In the “Rebuttal to argument against Measure EE” (in the voter pamphlet), the proponents state, referring to the opponents: “They also want to preserve the ability to use red light cameras.”  This appears to be another purposeful distortion.

The opponents have clearly stated that an item like “Prohibition of red light cameras” is not the type of item that is appropriate for the Charter.  It should be handled by ordinance, if it’s ever necessary.  While it would be one of the later Charter Sections numerically, it appears Curry has had this “Johnny come lately” item propelled to the top of the list, because he apparently believes no one likes or would be supportive of red light cameras, so their prohibition could be an easy “yes” vote.

Councilman Ed Seliich said the appropriate way to handle “Prohibition of red light cameras,” if ever necessary, would be by ordinance.  Although the majority of the City Council apparently have agreed that adding this item to the Charter would be a slick, easy way to get voters to approve all 38 Charter amendments with their one vote, the voters shouldn’t be duped.

Insufficient time was allotted to review these Charter changes, and some are very seriously deficient.  To put all 38 in one “Yes” or “no” vote is an affront to the citizenry.  Prior City Councils have put each Charter change on the ballot as a voting item.  Grouping 38 varied Charter changes together for one yes or no vote is unreasonable, and if you have a problem with just one of the 38, you must vote “NO” on Measure EE.

Ron Hendrickson