CITY COUNCIL SPECIAL MEETING AGENDA
July 5, 2023
6:00 P.M.
WE ENCOURAGE ALL MEMBERS OF THE PUBLIC TO PARTICIPATE IN THE MEETING VIA TELECONFERENCE BY CALLING (520) 525-8911. ANY MEMBER OF THE PUBLIC
PARTICIPATING VIA TELECONFERENCE WILL BE GIVEN THE OPPORTUNITY TO PROVIDE PUBLIC COMMENT.
ADDITIONALLY, THE REGULAR MEETING WILL BE STREAMED ON YOUTUBE LIVE https://www .youtube.com/channel/U CB Zm0ZlliELh-ECEPZ2 VwZg Assistance will be provided to those requiring accommodations for disabilities in compliance with the Americans with Disabilities Act of 1990. Persons requesting accommodation should contact the City in advance of the meeting, and as soon as possible, at 209-394-5544.
Notice is hereby given that the City Council will hold a Special Meeting on July 5, 2023, at the City Council Chambers, 1416 C Street, Livingston, California. Persons with disabilities who may need assistance should contact the Deputy City Clerk at least 24 hours prior to this meeting at (209) 394-8041, Ext. 121. Any writings or documents pertaining to an open session item provided to a majority of the members of the legislative body less than 24 hours prior to the meeting shall be made available for public inspection by email if requested. Public comments can be submitted via emailed at [email protected]. Comments must he received by 2:00 n.m. on the day of the City Council meeting in order for them to be distributed to the Council prior to consideration of the matter.
You will need to provide: Meeting date, item number, name, email and comment (please limit to 300 words or 3 minutes). Please include: PUBLIC COMMENT in the subject for the email. Written comments will not be read aloud at the meeting, but will be reported as received for the record. If you do not receive an acknowledgement of receipt by 4:00 p.m., please call the City Clerk's Office at (209) 394-8041, Ext. 121 (Note: This technology is not a guaranteed method).
CALL TO ORDER
Roll Call.
Pledge of Allegiance.
Moment of Silence - First Responders and Military Members.
Changes to the Agenda.
Page I of2
CITIZEN COMMENTS
At a special meeting, members of the public wishing to address the Council for any matter on the agenda may do so at this time. Note, under the provisions of the California Government Code, the City Council is prohibited from discussing or taking action on any item not on the agenda. Comments are normally limited to three (3) minutes.
Please note that under California Government Code section 54954.3(a) (The Brown Act!. Special Meeting agendas need only provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the meeting agenda before or at the end of consideration of the item. The public will have an opportunity to comment on matters not on the agenda at regularly scheduled Council Meetings.
DISCUSSION AND POTENTIAL ACTION ITEMS
1. Consider and Discuss the City of Livingston City Council's Options for Filling the City Clerk Position Vacated by Leticia Vasquez-Zurita, and Take Action Related to Filling the Vacancy
2. Provide Direction on the Use of the Rec-Plex Facility for the 5 JFIFTY Fight Night Event
CLOSED SESSION
A "Closed" or "Executive" Session of the City Council or the Successor Agency to the Redevelopment Agency of the City of Livingston may be held in accordance with state law which may include, but is not limited to, the following types of items: personnel matters, labor negotiations, security matters, providing instructions to real property negotiators, conference with legal counsel regarding pending litigation. The Closed Session will be held in the City Council Chambers located at 1416 C Street, Livingston.
California. Any public comment on Closed Session items will be taken before the Closed Session. Any required announcements or discussion of Closed Session items or actions following the Closed Session will be made in the City Council Chambers, 1416 C Street, Livingston, California.
3. Public Employee Appointment
(Government Code Section 54957(b)(l))
Title: City Attorney
ADJOURNMENT
AGENDA ITEM:
MEETING DATE:
PREPARED BY:
REVIEWED BY:
STAFF REPORT
Consider and Discuss the City of Livingston City Council's Options For Filling the City Clerk Position Vacated by Leticia Vasquez-Zurita, And Take Action Relating to Filling the Vacancy
July 5, 2023
Christina Pritchard, Acting City Attorney
Christopher Lopez, Interim City Manager
RECOMMENDED COUNCIL ACTION:
Consider and discuss the City of Livingston City Council's options for filling the City Clerk position vacated by Leticia Vasquez-Zurita, and take action relating to filling the vacancy.
BACKGROUND:
At the November 3, 2020 general election, Leticia Vasquez-Zurita was elected to a four (4) year term as City Clerk of the City of Livingston ("City"). Ms. Vasquez-Zurita has since submitted her letter of resignation as the City Clerk, effective June 8, 2023. As a result, the City Clerk position is vacant (the "Vacancy"). 1
CITY CLERK DUTIES & RESPONSIBILITIES
Government Code section 40801 et seq. governs the office of the City Clerk, a copy of which is attached to this staff report.
The City Clerk is the local official for elections, local legislation, the Public Records Act, the Political Reform Act, and the Brown Act (open meeting laws). Before and after the City Council takes action, the City Clerk ensures that actions are in compliance with all federal, state, and local statutes and regulations and that all actions are properly executed, recorded, and archived.
The statutes of the State of California prescribe the basic functions and duties of the City Clerk, and the Government Code and Election Code provide precise and specific responsibilities and procedures to follow.
The Office of the City Clerk is a service department within the municipal government upon which the City Council, all City departments, and the general public rely for information regarding the operations and legislative history of the City. The City Clerk serves as the liaison between the public and City Council and provides related municipal services.
As an Elections Official, the City Clerk administers Federal, State, and Local procedures through which local government representatives are selected. The City Clerk assists candidates in 1 Gov. Code,§ 1770, subd. (c)(2).
{CWl299S3J) Page 1 of 4
meeting their legal responsibilities before, during and after an election. From Election pre-planning to certification of election results and filing of final campaign disclosure documents, the City Clerk manages the process which forms the foundation of our democratic system of government.
As a Legislative Administrator, the City Clerk plays a critical role in the decision-making process of the local legislature. As the key staff for City Council meetings, the City Clerk prepares the legislative Agenda, verifies legal notices have been posted or published, and completes the necessary arrangements to ensure an effective meeting. The City Clerk is entrusted with the responsibility of recording the decisions which constitute the building blocks of our representative government.
As a Records Manager, the City Clerk oversees yet another legislative process; the preservation and protection of the public record. By statute, the City Clerk is required to maintain and index the Minutes, Ordinances, and Resolutions adopted by the legislative body. The City Clerk also ensures that other municipal records are readily accessible to the public. The public record under the conservatorship of the City Clerk provides fundamental integrity to the structure of our democracy.
LEGAL FRAMEWORK FOR FILLING A VACANCY:
Pursuant to Government Code section 36512, within sixty (60) days of the commencement of a public official vacancy, the City Council must "either fill the vacancy by appointment or call a special election to fill the vacancy."2 Accordingly, the City Council has until August 7, 2023 to fill the vacancy by appointment or call a special election.
If the City Council chooses to fill the vacancy by appointment, and if the vacancy occurs in the second half of a term of office, as would be the case here, "the person appointed to fill the vacancy shall hold office for the unexpired term of the former incumbent. "3 Any individual who is appointed to fill the vacancy would serve until the City's next general municipal election on November 5, 2024.
If the City Council chooses to call a special election to fill the Vacancy, it must do so within sixty (60) days of the Vacancy. Additionally, "the special election shall be held on the next regularly established election date not less than 114 days from the call of the special election."4 In other words, the special election must be held: (1) on a regularly established election date pursuant to Elections Code section 1000, and (2) at least 114 days must elapse between the date the election is called and when it is held.
The next regularly established election date that allows at least 114 days' notice between calling and holding the special election is Tuesday November 7, 2023.5 2 Gov. Code, § 36512, subd. (b ). 3 !d. at§ 36512, subd. (b)(2)(B). 4 Gov. Code, § 36512, subd. (a)()). 5 Elections Code, § I 000, subd. ( e) ["The First Tuesday after the first Monday in November of each year.") {CWI29953.3} Page 2 of 4
DISCUSSION:
Consistent with Government Code section 36512, the City Council has until August 7, 2023, to do one of the following:
1. Appoint someone to fill the vacancy; or
2. Call a special election to be held on the date of the next regularly established election.
A. Appointment
The City Council has discretion to determine the process by which to fill a vacant public official position by appointment. Some options may include the following:
1. City Council direct appointment;
2. Accepting nominations and appointing someone from that process; or
3. Initiating an open call for applications to all eligible persons within the City.
There are no statutory requirements that define a specific process for how the City Council may decide to appoint an individual to fill the Vacancy. The City Council has discretion to determine how it would like to proceed with the appointment process, should it elect to follow that path to fill the Vacancy. For example, the City Council is not obligated to appoint someone who ran in the last election and got the 2nd highest votes. The City Council also has the discretion to determine how the City accepts applications and whether a specific number of applications must be received.
The City Council may directly appoint an individual to the Vacancy without accepting applications.
However, it is common in such situations for a city council to notice the Vacancy and solicit applications from interested parties. The city council then reviews the applications and selects an individual to fill the Vacancy by majority vote. If the City Council elects to interview applicants, it must be done at a public meeting, although the meeting can be held at any time, subject to any applicable requirements under the Ralph M. Brown Act. Filling the Vacancy is not a permitted closed session discussion or decision. The City Council must appoint a person who is at least 18 years old, a registered voter, and a resident of the City.
Proposed Timeline for Appointment
In the event of a call for applications, the candidate must be appointed by August 7, 2023. In order to adhere to the timeline established in Government Code section 36512(b) for filling vacancies, a proposed timeline and process for the appointment is outlined below:
July 6 - July 24 (5PM): Solicit applications from interested persons.
August 1:
{CWl29953.3}
Regular City Council meeting to conduct interviews,
review and discuss applicants, and select preferred
candidate. Seat the newly appointed City Clerk.
The proposed application form is attached to this agenda item. The application would be made available on the City's website beginning on July 7, 2023, or the date the application period begins, as instructed by the City Council. Completed applications must be submitted to the Deputy City Clerk no later than 5:00 PM on the deadline selected by the City Council.
B. Special Election
The soonest date a special election can be held is Tuesday, November 7, 2023. The special election must be held: (1 )' on a regularly established election date pursuant to Elections Code section 1000, and (2) at least 114 days must elapse between the date the election is called and when it is held. 114 days before November 7 falls before the sixty (60) day deadline to call a special election or make an appointment; therefore, if the City Council chooses to call a special election, it must do so no later than July 16, 2023. If the City Council calls a special election after July 16, the election cannot be held until Tuesday, March 4, 2024, the date of the next Primary Election.
If the City Council chooses to call a special election to fill the vacancy, cost estimates provided by the County of Merced are estimated to be $53,345.31 if the election is to be held on November 7, 2023, or $15,448.66 if the election is to be held at the March 4, 2024, Presidential Primary Election.
Recommendation
Staff recommends the City Council discuss, deliberate, and provide direction on the appointment process and timeline.
FINANCIAL IMPACTS:
Should the City Council elect to hold a special election, the estimated costs to the City would be between $15,448.66 and $53,345.31 based on the information received from the Merced County Registrar on June 13, 2023. The financial impact of filling the Vacancy by appointment is unknown until the City Council decides on a process; however the financial impact is expected to be minimal in comparison to calling a special election.
STEPS FOLLOWING APPROVAL:
If the City Council decides to hold a special election, staff will return to the City Council with a Resolution calling for a special election. Alternatively, if the City Council elects to fill the vacancy by appointment with an application process, the City Clerk will post the application on the City's website and will also issue a press release.
ATTACHMENTS:
A. City Clerk Statute (Gov. Code, § 40801 et seq.)
B. Proposed Citizen Application for Appointment to the position of City Clerk. {CW 129953.3} Page 4 of 4
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GOVERNMENT CODE-GOV
TITLE 4. GOVERNMENT OF CITIES [34000 - 45345] ( Title 4 added by Stats. 1949, Ch. 79.) DIVISION 3. OFFICERS [36501 - 41805) ( Division 3 added by Stats. 1949, Ch. 79.) PART 3. OTHER OFFICERS (40601 - 41805] ( Part 3 added by Stats. 1949, Ch. 79. ) CHAPTER 2. City Clerk (40801 - 40814] ( Chapter 2 added by Stats. 1949, Ch. 79. ) illfil.. The city clerk shall keep an accurate record of the proceeding of the legislative body and the board of equalization in books bearing appropriate titles and devoted exclusively to such purposes, respectively. The books shall have a comprehensive general index. (Added by Stats. 1949, Ch. 79.)
!llllil2. The city clerk is the accounting officer of the city and shall maintain records readily reflecting the financial condition of the city. (Added by Stats. 1949, Ch. 79.)
~ The city clerk shall cause a summary of the city's financial report required by Section 53891, in a form prescribed by the Controller, to be published once in a newspaper of general circulation, pursuant to Article 1 (commencing with Section 6000) of Chapter 1 of Division 7 of Title 1 of the Government Code. If there is no newspaper, the city clerk shall cause copies of the statement to be posted in three public places in the city designated by ordinance as the places for posting of public notices. (Amended by Stats. 2018, Ch. 467, Sec. 42. (SB 1498) Effective January 1, 2019.) ~ The report shall be published or posted consistent with the timelines established in Section 53891 after the close of the fiscal year for which the report is compiled.
(Amended by Stats. 2016, Ch. 366, Sec. 10. (SB 974) Effective January 1, 2017.) ~ The financial and accounting duties imposed upon the city clerk by Sections 40802 through 40805 may be transferred to a director of finance when such office has been established and the powers and duties thereof defined by ordinance. (Added by Stats. 1955, Ch. 1754.)
~ The city clerk shall keep a book marked "ordinances" and record in it all city ordinances with a certificate annexed to each, stating:
(a) It is a true and correct copy of a city ordinance.
(b) The ordinance number.
(c) It has been published or posted pursuant to law.
(Amended by Stats. 2018, Ch. 467, Sec. 43. (SB 1498) Effective January 1, 2019.) moz. The record with the certificate is prima facie evidence of the contents of each ordinance and of its passage and publication. It is admissible as such evidence in any court or proceedings. (Added by Stats. 1949, Ch. 79.)
!Qll.!lll. The official city records in the custody of the city clerk shall not be filed in any court proceed ing or other action but shall be returned to the custody of the city clerk.
(Added by Stats. 1949, Ch. 79.)
~ This article does not prevent the proof of the passage and publication of ordinances in the usual way. (Added by Stats. 1949, Ch. 79.)
~ The city clerk is the ex officio assessor unless the legislative body provides for the assessment and collection of city taxes by county officers or otherwise.
(Added by Stats. 1949, Ch. 79.)
.4ll..!!.ll:. The city clerk is the custodian of the city seal. (Added by Stats. 1949, Ch. 79.)
!!lll12... The city clerk shall perform any additional duties as are prescribed by ordinance. (Amended by Stats. 2018, Ch. 467, Sec. 44. (SB 1498) Effective January 1, 2019.) ~ The city clerk may appoint deputies, for whose acts the city clerk and the city clerk's bondspersons are responsible. The deputies shall hold office at the pleasure of the city clerk and receive the compensation as provided by the legislative body. (Amended by Stats. 2018, Ch. 467, Sec. 45. (SB 1498) Effective January 1, 2019.) ~ The city clerk and the city clerk's deputies may administer oaths or affirmations and take and certify affidavits and depositions pertaining to city affairs and business which may be used in any court or proceedings in the state. The acknowledgment of an instrument may be made before a city clerk and the city clerk's deputies within the city in which they were elected or appointed, (Amended by Stats. 2018, Ch. 467, Sec. 46. (SB 1498) Effective January 1, 2019.)
Please Return To:
Monica Cisneros, Deputy City Clerk
1416 C Street
Livingston CA 95334
(209) 394-5544
[email protected]
FILING DEADLINE: Wednesday, July 11. 2023 at 5:00 PM.
CITIZEN APPLICATION FOR APPOINTMENT TO CITY CLERK POSITION NAME: _________________________ _ _
HOME ADDRESS: ____________________ _
CONTACT INFORMATION:
Home Phone: Work: Cell: ------- -------- --------
Email: - -------------------------- -
Method of Contact Preferred: ------- ------------- LENGTH OF RESIDENCE at above address: - ---
OCCUPATION:
in Livingston _ _ _ in County: __ _
Occupation: --- ------- Employer: _________ _
Employer Address: _________ _____________ _
Street City Zip
EMPLOYMENT HIGHLIGHTS:
• (Attach additional pages as necessary.)
{CW129954.l}
EDUCATION (highest school year, degrees, etc.)
LIST PAST OR PRESENT EXPERIENCE AS A PUBLIC OFFICIAL, MEMBERSHIP ON
THE LIVINGSTON CITY COUNCIL, ANY COUNCIL APPOINTED COMMITTEE OR
COMMISSION, AND/OR ANY OTHER PUBLIC AGENCY, INCLUDING THE TIME PERIODS OF MEMBERSHIP OR APPOINTMENT.
PAST AND PRESENT COMMUNITY SERVICE:
WHAT DO YOU FEEL ARE YOUR MOST IMPORTANT QUALIFICATIONS FOR APPOINTMENT TO THE CITY CLERK POSITION?
(Attach additional pages as necessary.)
{CW129954.1}
WHAT DO YOU HOPE TO ACCOMPLISH AS THE CITY CLERK?
PLEASE REVIEW THE ATTACHED DESCRIPTION OF DUTIES AND
RESPONSIBILITIES OF THE LIVINGSTON CITY CLERK POSITION. IS THERE ANY
REASON YOU WOULD BE UNABLE TO FULFILL THESE DUTIES AND
RESPONSIBLITIES?
Please list three (3) references with telephone numbers:
1. ---------------------------
2. ---------------------------
3. ---------------------------
PLEASE NOTE THAT THIS APPLICATION BECOMES PUBLIC INFORMATION I hereby certify that the information contained in this application and any accompanying documents is true and correct to the best of my knowledge.
Signature of Applicant Date
You are invited to attach additional pages, enclose a copy of your resume or submit supplemental information which you feel may assist the City Council in its evaluation of your application.
(Attach additional pages as necessary.)
{CW129954.l}
STAFF REPORT
AGENDA ITEM: Provide Direction on the Use of the Rec-Plex Facility for the 51FIFTY Fight Night Event
MEETING DATE: July 5, 2023
PREPARED BY: Jacquelyn Benoit, Recreation Superintendent REVIEWED BY: Christopher Lopez, Interim City Manager
RECOMMENDATION:
Staff requests the City Council provide direction on the use of the Rec-Plex Facility for the 51FIFTY Fight Night Event.
BACKGROUND:
In early June of 2023 the representative of the Carlos Vieira Foundation (the “Foundation”), Julio Valadez, inquired about the use of the Rec-Plex Building to host their Annual Boxing Event. The location used in the past is not large enough for the attendance of this growing event.
Mr. Valadez has provided City staff with the following list of clean-up and repair items the Foundation is willing to complete should they be permitted to use the facility:
• Clean and tape up insulation
• Clean office building
• Throw away trash inside and outside building
• Trim shrubs
• Maintain landscaping around building
• Service swamp coolers
• Clean and sanitize restroom and walls
• Clean fan blades
• Replace lightbulbs in warehouse
• Clean up weeds in both parking lots
• Check, label, repair power supplies
• Fix roll up doors
• Throw away all furniture
The Rec-Plex property will not enter into construction for at least one (1) year according to the Project Manager’s timeline. Having the property cleaned up and existing equipment serviced will be a great benefit to the City.
DISCUSSION:
The City Council has the discretion to approve or deny the use of the facility. Staff recommends the following three (3) options for City Council consideration:
1. Allow the Foundation to use the Rec Plex facility which will require the Council to adopt the attached resolution for the Fight Night Event and direct the Interim City Manager to negotiate and execute a Memorandum of Understanding (MOU) with the Foundation, approved as to form by the City Attorney.
2. Deny facility use.
3. Continue the item with direction to staff to present another course of action or provide additional information at a future meeting.
City staff has consulted with the City’s insurance provider and the Foundation has agreed to provide the required insurance for the protection of the City. The City Attorney has advised that an MOU would be the most appropriate form of agreement to pursue should the City Council approve use of the Rec Plex facility by the Foundation for the Fight Night Event.
FISCAL IMPACT:
Due to the expense of professional services required to complete the repairs and maintenance offered by the Foundation, there would be no rent or use fees collected. However, the City will be saving an unknown amount of funds by allowing the Foundation to complete the offered repairs and maintenance.
Minor expenses will be required to cover staff and legal time in negotiating and preparing the MOU.
ATTACHMENTS:
1. Proposed Resolution
RESOLUTION 2023-
RESOLUTION AUTHORIZING THE INTERIM CITY MANAGER TO NEGOTIATE AND EXECUTE
A MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF LIVINGSTON AND THE
CARLOS VIEIRA FOUNDATION, APPROVED AS TO FORM BY THE CITY ATTORNEY, FOR THE USE OF THE REC-PLEX PROPERTY ON 6TH AND D STREET
WHEREAS, the Carlos Vieira Foundation (the “Foundation”) has requested use of the City of Livingston Rec-Plex Building to host its Annual Boxing Event; and WHEREAS, in exchange for the requested use of City facilities, the Foundation will perform certain repairs and maintenance in and around the Rec-Plex Building at no cost to the City; and WHEREAS, the Rec-Plex property is scheduled to undergo construction in approximately one (1) year and the performance of the proposed repairs and maintenance by the Foundation will be a great benefit to the City; and
WHEREAS, City staff has consulted with the City’s insurance provider and the Foundation has agreed to provide the required insurance for the protection of the City; and WHEREAS, the City Attorney has advised that a memorandum of understanding would be the most appropriate form of agreement to pursue should the City Council approve use of the Rec Plex facility by the Foundation for the Fight Night Event; and
WHEREAS, the terms of the memorandum of understanding will be finalized in consultation with the City Attorney’s Office.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Livingston does hereby authorize the Interim City Manager to negotiate and execute a Memorandum of Understanding, in a form approved by the City Attorney, with the Carlos Vieira Foundation for the use of the Rec-Plex on 6th and D Streets.
Passed and adopted this 5th day of July 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_______________________________
Jose A. Moran, Mayor
of the City of Livingston
ATTEST:
I hereby certify that the foregoing resolution was regularly introduced, passed and adopted at a special meeting of the City Council of the City of Livingston this 5th day of July 2023. ______________________________
Monica Cisneros, Deputy City Clerk
of the City of Livingston