City Council Meeting

CITY OF LOS BANOS CITY COUNCIL MEETING MINUTES FEBRUARY 15, 2023 ACTION MINUTES – These minutes are prepared to depict action taken for agenda items presented to the City Council. For detail of this meeting refer to the electronic media (CD and/or audio) kept as a permanent record. CALL TO ORDER: Mayor Llanez called the City Council Meeting to order at the hour of 6:01 p.m. PLEDGE OF ALLEGIANCE: Acting Police Chief Reyna led the pledge of allegiance. ROLL CALL – MEMBERS OF THE CITY COUNCIL PRESENT: Council Members Doug Begonia, Brett Jones, Kenneth Lambert, Deborah Lewis, Mayor Paul Llanez; ABSENT: None. STAFF MEMBERS PRESENT: Interim City Manager Souza Elms, City Attorney Vaughn, Acting Police Chief Reyna, City Clerk/Human Resources Director Mallonee, City Treasurer Lawrence, Public Works Director/City Engineer Than, Fire Chief Tualla CONSIDERATION OF APPROVAL OF AGENDA: Mayor Llanez stated that he would like to strike item 9 - CONSIDERATION OF ADOPTION OF CITY COUNCIL RESOLUTION NO. 6609 – AMENDING DIVISION 4, SALARY SCHEDULE/EMPLOYEE CLASSIFICATIONS RELATING TO CHANGES TO SECTION A – ADMINISTRATION AND SECTION C – COMMUNITY & ECONOMIC DEVELOPMENT (Continued from the February 1, 2023 City Council Meeting and To be Continued to the March 1, 2023 City Council Meeting) from the agenda. Council Member Lewis stated that she would like to remove item 11 A & B - CONSIDERATION OF JOSH PINHEIRO SETTLEMENT AND EMPLOYMENT AGREEMENTS; City Council Resolution No. 6612 – Accepting and Approving a Settlement Agreement and Release between the City of Los Banos and Josh Pinheiro; City Council Resolution No. 6613 – Appointing a City Manager and Authorizing the Execution of the Los Banos City Manager Employment Agreement with Josh Pinheiro and asked that the City Attorney get an outside legal opinion on the validity of the 5-0 vote as currently proposed in the City Manager’s contract which is in opposition of the City’s current Ordinance No. 1110 Section 2-3.126 which states the removal and temporary suspension of the City Manager shall only be upon a affirmative vote of three or more members of the city council during at regular or special called meeting at the sole discretion of the city council with or without cause and without right of appeal, adding that this ordinance was passed June 19, 2013 by an unanimous vote, and again requested removal of 11 A & B be placed on a future agenda after the legal opinion of the 5-0 vote as stated in the city managers contract on today’s agenda and that it be placed on the agenda as a public hearing giving the members of the public an opportunity to address their opinions. Mayor Llanez inquired to Ms. Lewis as to what 11A has to with the 5-0 vote and the validity because it is a settlement and has nothing to do with a 5-0 vote. Motion by Lewis to amend Mayor Llanez’s motion to also remove item 11 - A & B - CONSIDERATION OF JOSH PINHEIRO SETTLEMENT AND EMPLOYMENT AGREEMENTS; City Council Resolution No. 6612 – Accepting and Approving a Settlement Agreement and Release between the City of Los Banos and Josh Pinheiro; City Council Resolution No. 6613 – Appointing a City Manager and Authorizing the Execution of the Los Banos City Manager Employment Agreement with Josh Pinheiro. The motion failed due to a lack of a second. Motion by Llanez, seconded by Jones to remove item 9 – Consideration of Adoption of City Council Resolution No. 6609 – Amending Division 4, Salary Schedule/Employee Classifications Relating to Changes to Section A – Administration and Section C – Community & Economic Development from the agenda and to be continued to March 1, 2023. The motion carried by the affirmative action of all Council Members present. PUBLIC FORUM: MEMBERS OF THE PUBLIC MAY ADDRESS THE CITY COUNCIL MEMBERS ON ANY ITEM OF PUBLIC INTEREST THAT IS WITHIN THE JURISDICTION OF THE CITY; INCLUDES AGENDA AND NON-AGENDA ITEMS. NO ACTION WILL BE TAKEN ON NON-AGENDA ITEMS. SPEAKERS ARE LIMITED TO A FIVE (5) MINUTE PRESENTATION. DETAILED GUIDELINES ARE POSTED ON THE COUNCIL CHAMBER INFORMATIONAL TABLE. Mayor Llanez opened the public forum and asked those at the meeting if they would like to speak: KATHY BALLARD, has a few questions and points to make before they cast their votes on one item, spoke of concerns with the proposed $1.8 million, a raise, and a secure job, is this what our attorney is recommend or something the City Council asked him to do, is our EPLI insurance paying for this, if not, why not, spoke regarding things coming out of the general fund like Police, Fire, Parks and staff, how we have been compounding a decision made and getting a city manager for 4 years, this notice or threat should be sent to arbitration and not decided by this council, Mr. Jones stated that we have lost business because this City Manager was not here and she wants to know which businesses, she has issues with 5-0 vote, it should be 2/3 or a simple majority, why are we being different than everyone else, what are all of his qualifications and questions as to why we are hiring him back; DOMINGO SANDOVAL, Vice President for the Chamber of Commerce, spoke regarding the upcoming Mother’s Day in the Park event and other upcoming events, thanked Rudy Luquin in Community & Economic Development Department for helping the Chamber and the community, he is one of the people who has the personality to help other people; PASTOR JOHN VALE, Our Fathers House, thanked our Mayor and each City Council Members and each person that is here, after investigating the facts they have made the decision to consider of City Manager of Josh Pinheiro, we feel that this is the step in the right direction and we look forward to the future as Los Banos, we stand with you and look forward to working with you; JAVIER CALTENCO, Small Business Administration, spoke regarding the disaster assistance they are providing, the services they are providing Merced County residents with the recovery process, how they help businesses and home owners get financial assistance to replace or repair property they have lost; UNNAMED PERSON stated that he runs a small business in town and has been blessed with this town since he moved here, he has been trying to help out these past 10 years, how he took over Little League with Dustin Caropreso this past year, spoke to how nice it was to work with Josh Pinheiro before what happened to him, we got new scoreboards, there is a lot of us that want to keep moving forward, he feels that the $1.8 million is small compared to what can happen when he comes back, and how they we will be asking for future funds for Los Banos Little League; ANN McCAULEY, stated that this reminds me about stopping the football game at 8 seconds and wanting to start it over, why if people had questions before why didn’t they bring it up these last few months, seems a little late to be calling for a reassessment and issue should have been brought up then; UNNAMED PERSON, stated that he had an opportunity during COVID to spend the day with Josh during a fundraiser with Kiwanis and spoke to how he was a hard working young man and he wants to say that everything that was expressed to me from him was his focus on the city, a lot of heart and desire to make things better, he was really impressed with him; UNNAMED PERSON, speaking on behalf of the Chamber of Commerce, stated that he sponsors two baseball teams with Little League, he spoke regarding the upcoming Spring Street Fair sponsored by Sutter Health Memorial Hospital, the new Mother’s Day in the Park event at Pacheco Park, the new members Centine Boutique, Amayas Aqua frescos, upcoming mixers and how they will be hosting a mixer with the Los Banos Downtown Association in February and encouraged all to attend, how the Chamber of Commerce is always looking to find new ways to give back to Los Banos and to call the Chamber of Commerce if you have questions or need help. Mayor Llanez asked the City Clerk if she had received any comments to be read into the record. City Clerk Mallonee stated she received the following comments, which are on file with the City Clerk’s Office: A CONCERNED RESIDENT AND CITY EMPLOYEE wrote is opposition to the terms and conditions set forth in bringing back Josh Pinheiro as City Manager and spoke to why the reasons why they don’t support this action; JANE wrote in opposition of the details that pertain to Josh Pinheiro’s potential rehiring and the settlement conditions, and wrote to the reasons why they are opposed; TOM & LAURIE BALATTI, wrote in support for the rehiring of Josh Pinheiro as City Manager and spoke to why they support this action; UNNAMED PERSON, wrote in opposition of the hiring of the new City Manager and how he has questions and concerns regarding $1.8 million to be given to Mr. Pinheiro from unallocated general fund, and spoke to why he is opposed; A CONCERNED CITIZEN, CITY TAX PAYER & CITY EMPLOYEE, wrote in opposition of hiring Josh Pinheiro to again become City Manager and spoke to why they are opposed; UNNAMED PERSON wrote in opposition to the terms of Josh Pinheiro’s proposed employment contract and the ridiculous settlement amount that the Council will be voting to approve tonight, and spoke to why they are opposed; UNNAMED PERSON wrote in opposition to the settlement agreement on the table for discussion and consider for Josh Pinheiro and spoke to why they are opposed. No one else came forward to speak and the public forum was closed. CONSIDERATION OF APPROVAL OF CONSENT AGENDA. Motion by Lambert, seconded by Jones, to approve the consent agenda as amended as follows: Check Register for #237253 - #237330 in the Amount of $188,518.70; Minutes for the January 30, 2023 Special City Council Meeting; Minutes for the February 1, 2023 City Council Meeting. The motion carried by the affirmative action of all Council Members present. PENINSULA CLEAN ENERGY (PCE) PRESENTATION UPDATE. Interim City Manager Souza Elms presented the staff report, introducing Marc Hershman, Director of Government Affairs and Sandra Benetti, Associate Manager of Community Relation with PCE who both spoke in more detail to the services PCE provides the City of Los Banos, which included a PowerPoint presentation. Council Member Lewis inquired as to the renewable sources, solar services, any other forms associated with the wind, like oil, gas, do they turn on their own is there something else that turns them, how she has heard that they use fuel to turn the blades to generate this clean energy, she’s just trying to determine if PCE is 100% clean. Informational item only, no action taken. CONSIDERATION OF ADOPTION OF CITY COUNCIL RESOLUTION NO. 6611 – ACCEPTING THE 2021-2022 FISCAL YEAR AUDIT REPORTS CONSISTING OF THE ANNUAL COMPREHENSIVE FINANCIAL REPORT AND THE GOVERNMENT AUDITING STANDARDS REPORT. Interim Finance Director Kuhn presented the staff report, which included a PowerPoint presentation. He thanked the hard work of the Finance Department. Motion by Jones, seconded by Lambert to adopt City Council Resolution No. 6611 – Accepting the 2021-2022 Fiscal Year Audit Reports Consisting of the Annual Comprehensive Financial Report and the Government Auditing Standards Report. The motion carried by the affirmative action of all Council Members present. CONSIDERATION OF ADOPTION OF CITY COUNCIL RESOLUTION NO. 6609 – AMENDING DIVISION 4, SALARY SCHEDULE/EMPLOYEE CLASSIFICATIONS RELATING TO CHANGES TO SECTION A – ADMINISTRATION AND SECTION C – COMMUNITY & ECONOMIC DEVELOPMENT. (Continued from the February 1, 2023 City Council Meeting) (To be Continued to the March 1, 2023 City Council Meeting) This item was removed with approval of the agenda at the beginning of the meeting. SHAUNESSY VILLAGE PARK CONCEPTUAL DESIGN PRESENTATION. Parks & Recreation Operations Manager Heim presented the staff report, which included a PowerPoint presentation. There was Council Member and staff discussion regarding wanting to make sure there are infant seats on the swings because some current parks don’t have infant seats for Parks & Recreation Operations Manager Heim explained the state rules regarding infant seat and the needing of a double bay; is there any consideration going into the parks for portable backstops to be able to be brought in for practices and Parks & Recreation Operations Manager Heim responded that they would need to work with our Parks & Recreation staff for something like that, but he wasn’t sure if this particular sight will be a good location because of the fencing considerations, there was City Council support for concept A and how staff tried to incorporate their publics comments on what people would like to see, how soon we would see this new park which would start with construction this winter and ready this time next year. It was the consensus of the City Council to move forward on Concept A for design pf the Shaunessy Village Park. CONSIDERATION OF JOSH PINHEIRO SETTLEMENT AND EMPLOYMENT AGREEMENTS; CITY COUNCIL RESOLUTION NO. 6612 – ACCEPTING AND APPROVING A SETTLEMENT AGREEMENT AND RELEASE BETWEEN THE CITY OF LOS BANOS AND JOSH PINHEIRO; CITY COUNCIL RESOLUTION NO. 6613 – APPOINTING A CITY MANAGER AND AUTHORIZING THE EXECUTION OF THE LOS BANOS CITY MANAGER EMPLOYMENT AGREEMENT WITH JOSH PINHEIRO. City Attorney Vaughn presented the staff report and gave a brief background to the item and how these items were discussed and direction was given in closed session, and gave an overview of each agreement’s provisions. Council Member Lewis stated that there were comments made during the public forum about why we are paying Mr. Pinheiro out of the general fund, inquired as to if there other means to pay him for which City Attorney Vaughn stated that this matter was tendered to the insurer and they have denied coverage and for now there is not coverage and this settlement for now will be paid out for now the unallocated general fund monies. Council Member Lewis stated she has some concerns about the amount of money being paid out on this, read an article in the Merced Sun Star and a Council Member stated that he asked for a lot more, how we’ve made a commitment to the community to upgrade parks committed to a water feature for the youth, this $ 1.8 million could be well used to upgrade Pacheco Park, she’s had people come to me and tell me how people don’t like me because of the decisions I have made, but she is doing what she consciously can for the District she represents, she cannot support items A or B on this agenda, we need to really legally need to look at the 5-0 vote, if any council member has an issue it won’t matter because he has his job without question, a 5-0 vote means he will do it his way, feels it is a wrong position to take in the city, takes away the democratic process, even our legislatures don’t even have that power, this to me is unjust for our residents, and unjust for the Council and for the long term it sends a wrong message to our community. Council Member Lambert stated that Council Member Lewis’s District got more than any other District with Josh as City Manager, spoke to how on June 15, 2022 the Mayor was sick with COVID and we passed a budget of $48 million infrastructure budget that night for the City of Los Banos, he would challenge anyone to back 10-15 years to see if we’ve had a budget at that amount, Mr. Pinheiro did work the Department Heads to come up with the budget, it’s not just done by the department heads, the City Manager has a say and that night he was terminated, unjustly terminated, democracy did not work that night, speaking about the animal shelter and how a $1 million budget was put out and how we have done nothing to date, there are only 2 things that were in the budget that we have actually started on – the Ag Complex and Scoreboards for Little League, we have been stagnant, he is going to be as transparent as he can be, when he came to Los Banos in 2006 and he has not seen any growth except for homes in this City and how he ran for the best thing he can do for Los Banos, when he was elected nothing was going on and we went the way to hire Josh and hire a business person, not a government guy, someone that was going to get out and do the job, and again he was unjustly terminated on June 15th and since then we have not done anything in this city, we are failing, and we need to get this City back on track. Council Member Begonia stated that he has known Josh his whole life and the things I have heard said about him does not describe who he is at all and it’s pretty sad to hear that coming from I don’t know who, to hear that he is going around taking credit for everything referring to Joe Heim and all the good things he has done, yes he is a teacher and what he will tell his students that sometimes you will have to make hard decisions and do it from the anonymity of a keyboard and attack your morals and your ethics, you stand up for what you believe in, stand up for who you are and sprint down the path that you know is right. Council Member Jones stated that when look at the full picture we should have never been put in this situation in the first place, having to correct this big mistake, this wrongful termination was unnecessary and completely avoidable, happy to put this behind us and look forward to the progress we are going to continue to make with our City Manager back. Mayor Llanez stated that large decisions like this are not usually done in this room and these types of decisions need to happen in the pubic, he was at the Council Meeting when Josh was terminated and the number of people that came to his defense, so where he bases his decision from the headhunter who we hired to get us 10 applicants, none of the applicants were local, none of them had kids in school here, not from here that weighed heavily with me, he reviewed the investigation and read every single word and listened to every word and he feels that Josh didn’t violate a single policy and was wrongfully terminated, he noticed that some of the complaints were from people who didn’t want to participate in the investigation, wants a name behind a voice, the budget that was passed by a person that was terminated in the same meeting, the people that are going to work tomorrow morning could care less about the decisions that we make tonight, there was not a succession plan, we ran 26 days without a city manager, what projects were completed, what wasn’t completed, why are we not doing something with the animal shelter, again the amount of money is in his opinion was a cost benefit analysis, time was far more valuable money, we are ready to create a new budget, to spend $1.8 million to get $50 million of things done he’d do it every single week, easy decision for him, all city employees received a 10% raise and what Mr. Pinheiro is receiving is less than a 10% increase and less than he would have gotten if he was still here, he hears comments about using the $1.8 million for a pool but who is going to run the pool, this decision took a long time and a lot of decisions and a lot of discussion. Council Member Lewis stated that we all just took a sexual harassment and retaliation class and how employees feel that they may lose their jobs for saying something and if these letters came from employees she commends them for doing so and recognizes and understanding their fears of employees who have wrote it, they felt some courage this time whether their names are on the letters or not. Mayor Llanez interviewed over 96 people and most of which were City employees and most were department heads and most of the letters that were read are not what people told me, we need to create a culture that people can come to us and if we are not creating that culture we are not doing our job. Motion by Lambert, seconded by Jones to approve City Council Resolution No. 6612 – Accepting and Approving a Settlement Agreement and Release between the City of Los Banos and Josh Pinheiro. The motion carried by the affirmative action of all Council Members present, Lewis voting no. Motion by Lambert, seconded by Jones to approve City Council Resolution No. 6613 – Appointing a City Manager and Authorizing the Execution of the Los Banos City Manager Employment Agreement with Josh Pinheiro. The motion carried by the affirmative action of all Council Members present, Lewis voting no. CONSIDERATION OF APPOINTMENT OF ONE (1) COUNCIL MEMBER TO SERVE ON THE LEAGUE OF CALIFORNIA CITIES CENTRAL VALLEY DIVISION EXECUTIVE COMMITTEE AND ONE (1) COUNCIL MEMBER TO SERVE AS AN ALTERNATE. Motion by Lewis, seconded by Jones to appoint the Mayor serve on the executive committee and Mayor Pro Tem to serve as alternate. The motion carried by the affirmative action of all Council Members present. APPOINTMENT OF COMMISSIONERS TO THE FOLLOWING COMMISSIONS: MEASURE H CITIZENS OVERSIGHT COMMITTEE, THREE (3) TWO (2) YEAR TERMS – EXPIRING DECEMBER 31, 2024; TREE COMMISSION, ONE (1) TWO (2) YEAR TERM – EXPIRING DECEMBER 31, 2024. Motion by, seconded by Lambert, seconded by Jones, to appoint Michael Amabile, Letty Guerra and Eldridge Johns to the Measure H Citizens Oversight committee for a two-year term expiring December 31, 2024. The motion carried by the affirmative action of all Council Members present. Motion by Lambert, seconded by Jones to appoint Tom Kaljian to the Tree Commission for a two-year term expiring December 31, 2024. The motion carried by the affirmative action of all Council Members present. ADVISEMENT OF PUBLIC NOTICES. (One Report) Interim City Manager Souza Elms reported that there will be a Public Hearing at the Planning Commission on February 22, 2023 to consider a Categorical Exemption from the California Environmental Quality Act (CEQA) and a Mobile Food Vendor Permit #2023-02 to allow the operation of mobile food vending vehicle on route throughout the city of Los Banos within the public right of way for Karen Quintana dba Belem Ice Cream. CITY MANAGER REPORT. Interim City Manager Souza Elms stated that this will be her last meeting as Interim City Manager and thanked the City Council for the opportunity, she spoke to the recent inclement weather we have been experiencing and the emergency operations center activities, the sewer break situation, that it is interesting time and we are all working together to get things done, she extended her appreciation to the team and all employees for pitching in and helping out where needed, she noted she even had a baby recently and staff has made it pretty smooth for her to continue to work, she gave an update on the homeless encampment and how the closure will occur on February 22, 2023 and clean up has already occurred, she then reported that today is the Mayor’s birthday and wished him a happy birthday. REPORT/UPDATE ON MERCED COUNTY ASSOCIATION OF GOVERNMENTS (MCAG), PENINSULA CLEAN ENERGY (PCE), MEASURE V COMMITTEE, AND SAN JOAQUIN VALLEY AIR POLLUTION CONTROL DISTRICT (SJVAPCD), AND LOS BANOS DOWNTOWN PROPERTY & BUSINESS IMPROVEMENT DISTRICT (LBDPBID). Mayor Llanez stated that he attended the last MCAG meeting and is learning some important things, like Measure V funding, The Bus, and the next meeting is February 16, 2023, how they will be giving Public Work is a stamp that says “Funded by Measure V” to use and stated that he is a voice for all at MCAG meetings and to please reach out to him, spoke regarding the YARTS program and the free bus services to Yosemite. Council Member Lewis had n report for SJVAPCD. CITY COUNCIL MEMBER REPORTS: KENNETH LAMBERT: Thanked everyone for coming tonight, stated that is was a great presentation by Interim Finance Director Kuhn, and it is great to see the City Treasurer. DOUGLAS BEGONIA, JR.: Stated that he had the opportunity to go to the League of California Cities Conference and met so many local government officials and took in so much information about this job entitles, one thing they did stress to all of us that as Council Members is that we will get in disagreements with each other and the City Manager but we are all a team and we are not going to get rid of someone because they are not doing what we want them to do. BRETT JONES: Stated that yesterday morning he had the pleasure of attending the 4 Chaplains Breakfast at the Veterans Hall and nice to learn about the heroic chaplains during WWII and thanked the VFW and American Legion for inviting him, spoke regarding the upcoming Fire Department Pancake Fundraiser on February 5, 2023. DEBORAH LEWIS: Inquired as to if the Council and community will be told about the recent sewer situation and made a recommendation that this Council have something on the agenda to terminate the contract with the recruiting company that we hired for the City Manager and we need to be forthright with them. PAUL LLANEZ: Stated he was at the VFW Chaplains event too, how he met today with Habitat for Humanity Merced and Stanislaus and spoke regarding their amazing organization, he also went to the League of California Cities Annual Conference with Council Member Begonia where they received a lot of training and a lot of information to process, how we have to be on the same team and have the same goal, we don’t have to agree every single time, but we need to have the same light at the end of the tunnel, thanked Stacy Souza Elms for her time as our Interim City Manager she was absolutely amazing and we picked the right person, spoke how he has concluded his initial city assessment shared with the Interim Finance Director his vison of moving things forward and putting a plan together, and spoke about donating his salary to local organizations and announced that he will be donating his January salary to the Chamber of Commerce. ADJOURNMENT. Motion by Jones, seconded by Lambert, the meeting was adjourned at 8:20 p.m. The motion carried by the affirmative action of all Council Members present. APPROVED: /s/ Paul Llanez_____________ Paul Llanez, Mayor ATTEST: /s/ Lucille L. Mallonee_________ Lucille L. Mallonee, City Clerk