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Ray Johnson's letter to Moreno Valley City Council over Yxstian Gutierrez appointment

Ray Johnson's letter to Moreno Valley City Council over Yxstian Gutierrez appointment

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Inland Attorney Ray Johnson submitted a letter to the Moreno Valley City Council on Friday, Oct. 4. He represents Residents for a Livable Moreno Valley. The group seeks to invalidate Yxstian Gutierrez' appointment to the council due to alleged violations of the state's open meeting law.
Inland Attorney Ray Johnson submitted a letter to the Moreno Valley City Council on Friday, Oct. 4. He represents Residents for a Livable Moreno Valley. The group seeks to invalidate Yxstian Gutierrez' appointment to the council due to alleged violations of the state's open meeting law.

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Published by: The Press-Enterprise / PE.com on Oct 07, 2013
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11/12/2013

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Johnson Sedlack 
 ATTORNEYS
at
 
LAW
Raymond W. Johnson, Esq. AICP 26785 Camino Seco, Temecula, CA 92590
E-mail  
: EsqAICP@WildBlue.netCarl T. Sedlack, Esq. Retired Abigail A.Smith, Esq. Abby.JSLaw@gmail.com
 
Kimberly Foy, Esq. Kim.JSLaw@gmail.com
 
 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 92552cityclerk@moval.org
RE: City Council Appointment of Yxstian Gutierrez on September 24, 2013 in violation of thBrown Act 
 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: City
Attorney 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.
 
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 Act’s 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 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
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 by
a 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 YxstianGutierrez.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 Co’s 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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