City Manager replacement

Dave Kiff (LA Times file photo)

City Manager replacement in Newport Beach — as of July 2018
Application period closed June 25; Council meets in closed session July 10;
Dave Kiff to speak on July 12

Latest News
Project Overview
Why We’re Watching
Upcoming
Recent Events
Background – Importance of City Manager
Background – Current Manager’s Employment Status
Background – Privacy Considerations
News Coverage
Helpful Links

Latest News: Although nothing has been publicly released about the current status of the city manager search, outgoing City Manager Dave Kiff is scheduled to speak about his experiences and offer advice for the future at a Chamber of Commerce breakfast event on July 12 (see “Upcoming,” below).  For its part, the Council appears to have discussed the applicants in closed session at their July 10 meeting, however no report was provided to the public.

Project Overview: On Sunday afternoon, March 25, 2018, the City’s Public Information Manager reportedly sent a message to the media saying “After two decades with the City of Newport Beach and nearly a full decade as its city manager, Dave Kiff has informed members of the City Council that he will leave his post toward the end of 2018.”  The parties have since, by mutual consent, signed a contract terminating Mr. Kiff’s service by August 31, 2018, at the latest, and the Council has hired an executive recruitment firm, Roberts Consulting Group, to search for a replacement.

Why We’re Watching:  Since under the form of government we have in Newport Beach the City Manager is completely responsible for the administration of the City and the face it presents to the public, the appointment of the manager is arguably one of the most consequential decisions an elected City Council makes.  SPON is concerned that in the present instance the Newport Beach City Council is being over secretive about the process by which a new manager is being selected.  While the presence of an online survey (see May 3 under “Recent Events,” below) was welcome, it is disturbing there was essentially no public discussion of how the recruitment firm was selected, and that no public discussion seems to be planned of what the Council will do with the survey results, or what the Council itself is looking for in the next City Manager.

As best we can tell, the City does not even have a page on its website to track the recruitment process and keep the public informed about it.  This page attempts, in part, to fill that void.

Upcoming:

  • July 12, 2018:  Outgoing City Manager Dave Kiff is scheduled to share his experiences as city manager and offer his advice for the future at the Newport Beach Chamber of Commerce’s Wake Up! Newport event. Wake Up! Newport is held in the Friends Room at the Central Library, with the program typically running from around 7:45 to 8:30 a.m.  Doors open at 7:15.  Details here.
  • Aside from a cryptic job listing linking to the outside recruiter’s brochure, the City’s website is silent on the City Manager transition, and the online survey having closed and been removed, there is no indication any further public involvement, including knowing or meeting the candidates, is planned.
  • If the public wants a greater role in the process, it appears it will need to put pressure on the Council to create one.

Recent Events:

July 10, 2018:  Item IV.D on the City Council’s closed session agenda provided the same notice as that posted on June 26.  Based on the contract signed on April 27, the recruiter was expected to present the City with an interim report on the candidates during Week 10 of the contract (the week starting July 9?) and help the Council begin interviews in Week 13 (the week starting July 30?).  Since what appeared to be the recruiters were seen leaving the Council Chambers after the closed session, it seems likely they delivered their “interim report” to the Council on July 10.  However, there was no public disclosure of what may, or may not, have happened.

June 26, 2018:  The posted agenda for the City Council’s June 26 meeting announced an Item IV.D, closed to the public, in which, according to the agenda explanation, “The City Council will consider all matters authorized by Government Code Section 54957(b)(1) related to the appointment of a new City Manager; however, the City Council will not be appointing a new City Manager at this meeting.”

  • Since the cited California Government Code section says only “this chapter [the Brown Act] shall not be construed to prevent the legislative body of a local agency from holding closed sessions during a regular or special meeting to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee,” the explanation is not particularly informative.
  • Most authorities seem to believe the sole reason the Brown Act allows the closed sessions is to protect the privacy of candidates during interviews, and hence that the closed sessions are not intended for general discussion of the recruitment process, including the general qualities being sought in a new city manager.
  • In the oral announcement that precedes closed sessions, the City Attorney said the Council would not be discussing this item, so presumably this closed session did not occur.

June 25, 2018: Per the job description brochure published by the City’s contract recruiter, Roberts Consulting Group, this was the last day for interested candidates to email applications to them.  The recruiter has promised to screen the applications and present the “most qualified” ones to the City Council.

May 30, 2018:  Newport Beach City Manager job posting appeared on ICMA and Western City websites, both linking to the brochure on the Roberts Consulting site.

May 24, 2018Notice of job opening for City Manager appeared under “Employment Opportunities” on City’s Human Resources Department page.  Interested parties are directed to brochure on Roberts Consulting Group website.  It indicates applications must be received by June 25.

May 22, 2018:  As later revealed in response to a Public Records Act Request, the City Clerk on this day gave her emailed approval to the recruitment brochure prepared by Roberts Consulting Group.   The initial response had been that the City had no disclosable records related to its interactions with the recruiter.  The emailed approval was disclosed later, and only after the public asserted that City approval of the brochure was one of the deal points in the public contract, and as such the public had a right to know that the approval had been given, and by whom.  It remains disturbing that the City appears to have no record of City Council participation in this decision, especially since the understanding from April 10 was that the City Clerk would be acting only as an agent for the Council.

May 18, 2018:  Online survey (see May 3, below) closed at end of day.  The City did not immediately seem to post any of the results, but a May 23 article in the Daily Pilot summarized them, apparently based on information disclosed in response to a Public Records Act request by the Daily Pilot.  What appears to be a complete set of results later appeared, without announcement, under “Open and Transparent” on the City website.

May 15, 2018:  Copy of contract C8550-1 with Roberts Consulting Group apparently uploaded to City’s contract archive, but not to the “Contracts and Agreements Approved within the Last 30 Days” page.

      • A Public Records Act request to inspect the document remained unanswered until May 24.
      • The contract calls for the consultant to visit the City three times. The first is to obtain approval of the recruitment brochure, and may have occurred during the closed session on May 8 (before the citizen’s survey had closed).  The second is discuss the preliminary screening of the applications, and the last to assist with the interviews of finalists.
      • Much of the selection and screening will apparently be done by the consultant in apparent contradiction of Newport Beach City Charter Section 500 which requires the City Council to screen all qualified candidates.
      • The prospectus provided to the Council by the Roberts on April 24, and accompanying the contract, emphasizes their wish for the process to be as secretive as legally allowed — including promises to “keep the candidate names confidential.”

May 8, 2018:  In a poorly advertised afternoon study session item, the Council agenda announced an opportunity for the public to speak to them about the qualities wanted in a new City Manager.  Only one member of the public spoke.  The Council then met in closed session to discuss “PUBLIC EMPLOYEE APPOINTMENT (Government Code Section 54957(b)(1)): 1 matter, Title: City Manager.”  This announcement let to considerable speculation the Council might actually be considering the appointment of a permanent or interim City Manager that night.  The speculation was exacerbated by the City Clerk and City Attorney’s refusal to discuss their understanding of the scope of the discussion allowed under the announcement, and if the discussion would involve actual candidates for appointment.  No report of actions taken in the closed session, which might possibly have involved general discussions of questionable legality with the City Clerk or recruitment consultants, was provided. In the regular, open session, the Council, without admitting any fault, responded to the April 10 “cure or correct” letter by asserting, in Item 10, that the public actions to amend the City Manager’s contract on April 10 had corrected any procedural errors that may have occurred preceding that.

May 3, 2018:  City posted a News Splash on its home page announcing the availability, through May 18, of an online survey through which “The Council is seeking input from community members as to what qualities and traits the next City Manager should possess.”  It actually asks mainly about the priority of the issues facing the City, and to a much lesser extent about the attributes community members would like to see in the next City Manager, with “Additional Thoughts” limited to 250 characters (and 50 characters for “other priorities”/”other attributes”).  It is unclear who prepared and posted the survey or exactly what will be done with the results.

April 27, 2018:  Contract C8550-1 with Roberts Consulting Group signed by the City Clerk, alone, and not by the Mayor as the Council had directed on April 24.  The contract was not immediately available for public inspection.

April 24, 2018:  The agenda announced an early afternoon closed session to discuss “PUBLIC EMPLOYEE APPOINTMENT (Government Code Section 54957(b)(1)): 1 matter, Title: Initiation of Recruitment Process for New City Manager.”  After being warned that this Brown Act (the California open meetings law) exception allows only the discussion of specific, individual candidates, and not the recruitment process in general, the City Clerk withdrew the item.  On the regular evening agenda, as Item 11, the Clerk provided the Council with letters from three executive recruitment firms offering to assist with the process.  Without publicly interviewing any of them, the Council authorized the Mayor and Clerk to contract with Roberts Consulting Group Inc.  The actual contract has not been posted as of May 8.  Although not clearly mentioned at the meeting, the City’s Human Resources Director had on April 4 signed an open-ended $75,000 contract (C-7398-1), effective April 16, with one of the other firms, William Avery & Associates, for on-call executive recruitments.

April 10, 2018:  The Council met in closed session to review the job performance of the City Manager and to instruct Mayor Duffield regarding labor negotiations with him.  In the open, regular session, as Item 12, the Council approved an amended labor contract that had evidently been previously negotiated and signed by the City Manager.  The contract called for him to leave by August 31 at the latest, and earlier if an Interim City Manager is appointed.  It also called for certain exceptional payments to be made to the outgoing City Manager if the terms of the agreement are followed, including a non-disparagement clause under which neither side can speak ill of the other (see signed contract C-7033-3).  The Council also put the City Clerk in charge of the mechanics of the recruitment process for the new manager.  Meanwhile, in public comments, the Council received a Brown Act “cure or correct” letter, demanding the night’s actions be set aside, charging they were predetermined by a majority of the Council reaching decisions outside noticed public meetings (something prohibited by the Act).

March 28, 2018: The City posted on its website a “News Splash” (since deleted)  assuring the public the City and its Manager had decided to amicably part ways.

March 27, 2018:  Although not formally on the City Council agenda, the City Manager asked for an item regarding amendments to his contract to be put on the next agenda.  Despite the standing item for public comments on non-agenda items being moved to the end of meeting, many people stayed to make comments on this item (see video).

March 25, 2018:  The City reportedly sent out a press release saying City Manager Dave Kiff had told the Council he will retire “toward the end of 2018.”


Background – Importance of City Manager:

Through a City Charter, adopted in June 1954 (effective January 1955), the voters of Newport Beach permanently selected a Council-Manager form of government (see Articles III, IV an V) — ratifying a choice that had been made voluntarily by its “general law” City Council in 1948 (see Ordinance No. 575).

Under the Council-Manager form of government, an elected council, acting collectively in open, public meetings, establishes the administrative structure of the city and the policies and legislation governing it, but (with the exception of the activities of the council’s direct charter appointees — in our case the City Clerk and City Attorney) the day-to-day operation of the administrative apparatus (including hiring and firing employees and all city dealings with the public) is left entirely to an appointed professional city manager. In fact, our Charter Section 406 is a fairly standard non-interference clause prohibiting individual council members from attempting to influence administrative actions, and even the whole city council from providing direction to the administrative staff other than through the city manager.

The above makes the selection of the City Manager one of the most important decisions a city makes.  Although Charter Section 500 delegates the appointment authority to the City Council, public involvement seems crucial for a good result.

With or without public involvement, Section 500 also places on the Council a positive duty to “screen all qualified applicants,” which may or may not be consistent with their use of a outside to recruiter to reduce their work.

Background – Current Manager’s Employment Status:

The current City Manager, Dave Kiff, was promoted and appointed to that position at a special closed session meeting of the City Council on August 18, 2009, and apparently started work as City Manager on September 12, 2009.  He had previously served as one of the prior Manager’s two Deputies.

As Item 16 at its April 25, 2017, meeting, the City Council approved synchronized “evergreen” contracts with all three of the employees it appoints (the City Manager, City Clerk and City Attorney).  Each contract has an initial “term” of two years, but automatically renews for another year on that and the subsequent anniversary dates unless the City gives the employee at least six months notice of its intent to not renew.  The employees can also voluntarily end these contracts by giving at least 45 calendar days notice of their intent to resign on any date.  In neither case would any special benefits accrue at the end of the contract.

Despite having mutually agreed to this evergreen arrangement in 2017, Mr. Kiff is said to have privately let the Council know he would not likely continue beyond the initial, April 25, 2019, anniversary of the contract.

Nonetheless, the March 25, 2018, announcement that Mr. Kiff wanted to leave before the end of 2018 came as a great surprise to many in the community, especially since it had not been preceded by any noticed discussion of his employment with the Council (something the Brown Act allows to take place behind closed doors — see Privacy Concerns, below).

The April 10 approval (see “Recent Events,” below) of a new employment contract ending August 31 and providing numerous termination benefits, not required by a voluntary termination under the 2017 contract, further fueled speculation that Mr. Kiff had either been encouraged to leave or made to feel very uncomfortable continuing in his position.

Background – Privacy Considerations:

Opinions are divided on the extent to which the city manager appointment process should be kept secret from the public.

California’s open meetings law, the Brown Act, allows (but does not require) Council discussion of individual employees within the Council’s appointment authority (including candidates) to be held behind closed doors.  It is not believed to allow closed session discussion of the recruitment process or the generalized qualifications the Council is looking for in a new appointee.

Many executive recruiters claim revealing the names of applicants deters quality people from applying out of fear their interest in the job will be made known to their current employer (see this 2017 article regarding the San Bernardino City Manager).  Nonetheless a number of California cities, and ones in other states, make the list of finalists known, and may actually require them to interact with the local public at noticed meetings.  Others discuss the applicants publicly, but avoid the privacy issue by speaking of them without identifying information (referring to them, for example, as “Applicant 1”).

Six to eight states (Florida, Colorado, Minnesota, Michigan, Louisiana, North Dakota and possibly Alabama and Utah)  appear to require interviews of prospective employees by the council to be conducted in public (some may allow individual council members to interview candidates privately, but they can discuss their conclusions from those private interviews only in public).  Florida appears to have the strongest of the state open meeting laws, requiring all meetings other than those related to pending litigation in which an agency is involved to be open to the public, and even the latter have to be recorded by a court reporter with the transcript released to the public immediately following settlement (unlike in California where most of the content of closed sessions is never publicly known, and it is even a crime for participants to disclose it). California’s Brown Act requires public discussion of personnel matters, including appointments, only when it involves elected positions or outside contractors.  While California law does not require as much openness as Florida, it does not prohibit it, and explicitly allows  agencies to adopt local rules requiring any level of transparency (Sec. 54953.7).

Nonetheless, Newport Beach, without public discussion, appears to have opted for complete secrecy — asking for public input, but with no announced plan to publicly discuss what will be done with the results, and with no commitment to reveal the names or qualifications of persons being considered for appointment.

It has to be noted that including in the search “quality people” who do not want their interest in the Newport Beach job to be known, runs the risk that the person hired will spend their time here quietly (and unknown to us) looking for a job elsewhere.

This post on the First Amendment Coalition suggests that even in California it can be argued the public should be able to know at least the names of the applicant’s for the City Manager position.  It cites the ballot arguments in favor of Proposition 59 in 2004.  That California Constitutional amendment, which passed overwhelmingly (83.4% yes to 16.6% no), was, according to the arguments intended to reverse the reasoning in two court cases that had denied public access to the names of candidates for gubernatorial appointments (in one case, to fill a vacancy on the Orange County Board of Supervisors): Wilson v. Superior Court, 51 Cal. App. 4th 1136 (1997) and California First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159 (1998).

In particular, the ARGUMENT in Favor of Proposition 59 cited examples of the kinds of information people in California had sought but found hard to obtain due to special interest legislation and burdensome court decisions — a trend which Proposition 59 promised to reverse by creating “a constitutional right to know what the government is doing, why it is doing it, and how.” The short list of examples that needed reversing included:  “Who is the Governor considering for appointment to a vacancy on the County Board of Supervisors? Why was the superintendent of the school district fired, and who is being considered as a replacement?

Fourteen years later, and despite the endorsement of the proposition by 83.4% of voters, that information seems as difficult to obtain as it was in 2004.

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