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Johnson

Raymond W. Johnson, Esq. AICP Carl T. Sedlack, Esq. Retired Abigail A.Smith, Esq. Kimberly Foy, Esq.

Sedlack
E-mail: EsqAICP@WildBlue.net
Abby.JSLaw@gmail.com Kim.JSLaw@gmail.com Telephone: 951-506-9925 Facsimile: 951-506-9725

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

26785 Camino Seco, Temecula, CA 92590

October 4, 2013

VIA US MAIL AND EMAIL City Council City of Moreno Valley c/o Jane Halstead City Clerk 14177 Frederick St. P.O. Box 88005 Moreno Valley, CA 92552 cityclerk@moval.org

RE: City Council Appointment of Yxstian Gutierrez on September 24, 2013 in violation of the Brown Act Greetings: This letter is to call your attention to what I believe was a substantial violation of several central 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 Vacancy on the Council in District 4 and Take Possible Action to Fill the Vacancy (Report of: City Attorney Department. The agenda recommendations stated the same. The Staff Report for this item 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. There was zero discussion of potential candidates to fill the vacancy. Yet, when this agenda item came up, it became apparent that an individual, Mr. Gutierrez, had already been considered and selected to fill this vacancy. Mayor Owings called for someone to make 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, who was in the audience and who was immediately sworn in. Gutierrez was also there with a typed speech regarding the appointment.

October 4, 2013 Page 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 the nomination and appointment of Gutierrez was coordinated in private by the Mayor and two council 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 was no notice to the public on the posted agenda for the meeting that Gutierrez in particular would be discussed for appointment and/or appointed. Additionally, it appears that the action taken to appoint Gutierrez occurred prior to the September 24th hearing via secret meeting by a majority of the council including Mayor Owings, Councilman Molina, and Councilwoman Baca. There was 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 public with a brief description of each item to be discussed or acted upon, and also creates a legal remedy for illegally taken actionsnamely, the judicial invalidation of them upon proper findings of fact and conclusions of law. Government Code Section 54952.2 defines a meeting as any congregation of a majority of members of a legislative body, and prohibits such a meeting from occurring outside of a public hearing 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, and Councilwoman Baca occurred outside of a public meeting authorized by the Brown Act in which the Council discussed appointing Gutierrez to the vacant Council seat. Government Code Section 54952.6, also defines action taken as a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or negative decision, or an actual 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 action taken here by a majority of the Council, Councilman Stewart excluded, in violation of the Brown Act. Pursuant to Government Code Section 54960.1, I demand that the City Council of Moreno Valley 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 such appoint 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 any appointment must be made available to the public prior to any meeting concerning such appointment.

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As provided by Gov. Code Section 54960.1, you have 30 days from the receipt of this demand to either 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 would seek court costs and reasonable attorney fees in this matter, pursuant to Section 54960.5. Sincerely,

Raymond W. Johnson JOHNSON & SEDLACK

Cc: 1) City of Moreno Valley Office of the City Attorney Suzanne Bryant Acting City Attorney 14177 Frederick St. P.O. Box 88005 Moreno Valley, CA 92552 suzanneb@moval.org 2) Riverside County District Attorneys Office Paul E. Zellerbach District Attorney Special Prosecutions Section 3960 Orange Street Riverside, CA 92501 3) State of California Department of Justice Office of the Attorney General Kamala D. Harris Attorney General Attn: Public Inquiry Unit P.O. Box 944255 Sacramento, CA 94244-2550

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