Public invited to participate in online survey through May 18
City Manager replacement in Newport Beach — as of May 2018
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 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 is 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.
Somewhat surprisingly, the City does not (at least as of mid-May) 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.
The City’s website links to an online survey open through May 18 (see “Recent Events,” May 3, 2018, below), but no public events or meetings connected with the recruitment are currently scheduled. If the public wants a greater formal role in the process, it appears it will need to put pressure on the Council to create one.
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:
Dave Kiff was promoted and appointed to the position of City Manager at a special closed session meeting of the City Council on August 18, 2009, and apparently started work in that position on September 12, 2009.
As Item 16 at its April 25, 2017, meeting, the City Council approved synchronized “evergreen” contracts with all three of its appointees (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 of a new employment contract providing numerous termination benefits not required by 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 Consideration:
Opinions are divided on the extent to which the city manager appointment process should be shrouded in secrecy.
California’s open meetings law, the Brown Act, allows (but does not require) Council discussion of individual employees within their 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. 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”).
Some states (for example, Minnesota) even appear to require interviews by the council with prospective employees to be held in public (although they may allow individual council members to interview candidates privately provided they discuss their conclusions about them only in public).
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.
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. 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 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 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 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 recruitment process for a 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.”
- Newport Beach city manager should stay on the job as long as he wants (column), Daily Pilot, March 29, 2018
- Residents Voice Support for City Manager Amid Claims of Pressure to Retire Early, Newport Beach Independent, March 29, 2018
- Newport Beach City Council denies accusations of effort to force city manager to retire before his contract ends, Daily Pilot, March 28, 2018
- Newport Beach council majority doesn’t realize what it has in City Manager Dave Kiff (column), Daily Pilot, March 26, 2018
- Newport Beach City Manager Dave Kiff to retire at the end of the year, Daily Pilot, March 25, 2018
- Council-Manager Form of Government Resource Package (International City/County Management Association)