ray johnson's letter to moreno valley city council over yxstian gutierrez appointment

7/27/2019 Ray Johnson's letter to Moreno Valley City Council over Yxstian Gutierrez appointment

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Johnson Sedlack A T T O R N E Y S at L A W

Raymond W. Johnson, Esq. AICP 26785 Camino Seco, Temecula, CA 92590 E-mail : [email protected] T. Sedlack, Esq. Retired

Abigail A.Smith, Esq. [email protected] Foy, Esq. [email protected]

Telephone: 951-506-9925Facsimile: 951-506-9725

October 4, 2013

VIA US MAIL AND EMAIL

City CouncilCity of Moreno Valleyc/o Jane HalsteadCity Clerk 14177 Frederick St.P.O. Box 88005Moreno Valley, CA [email protected]

RE: City Counci l A ppoin tment of Yxstian Guti er rez on September 24, 2013 in violation of the Br own A ct

Greetings:

This letter is to call your attention to what I believe was a substantial violation of severalcentral provisions of the Ralph M. Brown Act which jeopardize the finality of the action taken

by the Moreno Valley City Council on September 24, 2013. I hereby submit this letter on behalf of concerned area residents and Residents for a Livable Moreno Valley.

At that meeting, the agenda item read: G.1 Consider the Procedural Option to Fill the Vacancyon the Council in District 4 and Take Possible Action to Fill the Vacancy (Report of: CityAttorney Department. The agenda recommendations stated the same. The Staff Report for thisitem cited the options of the City Council to fill the council vacancy: 1) appoint a successor for the unexpired term; or 2) call a special election to fill the vacancy. Gov. Code 36512. Therewas zero discussion of potential candidates to fill the vacancy.

Yet, when this agenda item came up, it became apparent that an individual, Mr. Gutierrez, hadalready been considered and selected to fill this vacancy. Mayor Owings called for someone tomake a motion to fill the City Council vacancy caused by the resignation of Councilman Co.Councilwoman Baca nominated Gutierrez, and Mayor Owings immediately called for a vote.Mayor Owings, Councilman Molina, and Councilwoman Baca voted to appoint Gutierrez, whowas in the audience and who was immediately sworn in. Gutierrez was also there with a typedspeech regarding the appointment.


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October 4, 2013Page 2

Councilman Stewart rightly questioned how Gutierrez was selected, appointed, and came prepared with a typed speech given the allegedly impromptu nomination. It is clear that thenomination and appointment of Gutierrez was coordinated in private by the Mayor and twocouncil members, without notice to or the knowledge of the public.

The action taken was not in compliance with the Brown Act for several reasons. First, there wasno notice to the public on the posted agenda for the meeting that Gutierrez in particular would bediscussed for appointment and/or appointed. Additionally, it appears that the action taken toappoint Gutierrez occurred prior to the September 24 th hearing via secret meeting by a majorityof the council including Mayor Owings, Councilman Molina, and Councilwoman Baca. Therewas no notice of this meeting and it quite obviously occurred outside of the public hearing,contrary to the Brown Acts presumption in favor of public access.

As you are aware, the Brown Act creates specific agenda obligations for notifying the publicwith a brief description of each item to be discussed or acted upon, and also creates a legalremedy for illegally taken actions namely, the judicial invalidation of them upon proper findings of fact and conclusions of law.

Government Code Section 54952.2 de fines a meeting as any congregation of a majority o f members of a legislative body, and prohibits such a meeting from occurring outside of a publichearing where the matter discussed is within the subject matter jurisdiction of the legislative

body. Such a wrongful meeting may occur through communications of any kind to discuss,deliberate or take action on any item of business that is within the subject matter jurisdiction of the legislative body. It appears that a meeting by Mayor Owings, Councilman Molina, andCouncilwoman Baca occurred outside of a public meeting authorized by the Brown Act in whichthe Council discussed appointing Gutierrez to the vacant Council seat.

Government Code Section 54952.6, also defines action taken as a collective decision made bya majority of the members of a legislative body, a collective commitment or promise by amajority of the members of a legislative body to make a positive or negative decision, or anactual vote by a majority of the members of a legislative body when sitting as a body or entity,upon a motion, proposal, resolution, order or ordinance. Again, it appears there was actiontaken here by a majority of the Council, Councilman Stewart excluded, in violation of theBrown Act.

Pursuant to Government Code Section 54960.1, I demand that the City Council of MorenoValley cure and correct the illegal appointment of Yxstian Gutierrez.

Corrective action should include the formal and explicit overturning of any appointment made.The public should then be provided a full opportunity for a vote to fill the vacant council

position. At a minimum, notice and a full opportunity for public comment regarding any suchappoint to fill Cos vacant council seat must be provided. Moreover, any and all documents in

possession of the City of Moreno Valley, the Mayor, and council members concerning anyappointment must be made available to the public prior to any meeting concerning suchappointment.


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October 4, 2013Page 3

As provided by Gov. Code Section 54960.1, you have 30 days from the receipt of this demand toeither cure or correct the challenged action or inform our office of your decision not to do so. If you fail to cure or correct as demanded, such inaction may leave no recourse but to seek a

judicial invalidation of the challenged action pursuant to Section 54960.1, in which case I wouldseek court costs and reasonable attorney fees in this matter, pursuant to Section 54960.5.

Sincerely,

Raymond W. JohnsonJOHNSON & SEDLACK

Cc:1) City of Moreno Valley

Office of the City AttorneySuzanne BryantActing City Attorney14177 Frederick St.P.O. Box 88005Moreno Valley, CA [email protected]

2) Riverside Cou nty District Attorneys Office Paul E. ZellerbachDistrict AttorneySpecial Prosecutions Section3960 Orange Street

Riverside, CA 92501

3) State of California Department of JusticeOffice of the Attorney GeneralKamala D. HarrisAttorney GeneralAttn: Public Inquiry UnitP.O. Box 944255Sacramento, CA 94244-2550

ray johnson's letter to moreno valley city council over yxstian gutierrez appointment

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