Agenda packet, regular meeting — Moreno Valley City Council, November 1, 2022 (part 3 of 3)

take further action on the matter. I also indicated in the closed session announcement that the City Council voted 4 -0, with Mayor Gutierrez, Mayor Pro Tem Delgado, Council Members Marquez, and Baca -Santa Cruz, votin g to waive the attorney/client privilege, and to direct the City Attorney to read the Executive Summary of the investigation’s findings. The Executive Summary was prepared by Special Counsel Danny Yoo of the Law Firm of Liebert Cassidy Whitmore, who coordi nated the investigation. I then read the Executive Summary into the record as follows.

“On or around November 9, 2021, former City Clerk Pat Jacquez -Nares complained about possible discrimination, harassment, and retaliation by Council Members Ulises Cabr era and David Marquez. The City of Moreno Valley retained, via Special Labor Counsel, outside attorney Danielle Drossel of the Oppenheimer Investigation Group to investigate the allegations. Ms. Drossel interviewed eight witnesses and reviewed relevant documents.

Ms. Drossel was tasked to investigate the following:

1. Did Council Member Cabrera make comments or engage in conduct toward the former City Clerk that could reasonably be perceived as threatening or intimidating? If so, what were the comments an d circumstances?

2. Did Council Member Cabrera speak to the former City Clerk in a belittling or derogatory manner? If so, did he do so because of her gender?

3. On or around November 9, 2021, did Council Member Marquez tell [a City Employee] that the fo rmer was “not going to come back to work anymore,” or words to that effect? If so, did Marquez make the comment to threaten or intimidate Jacquez-Nares?

4. Did Council Member Cabrera and Council Member Marquez attempt to pressure or influence [a City Empl oyee] to make a complaint or grievance against the former City Clerk? If so, did they do so because the former City Clerk made a complaint against Cabrera and Marquez?

On September 9, 2022, Ms. Drossel completed her investigation report and did not sustai n any allegations of unlawful discrimination, harassment, or retaliation.

There were two only two partially sustained findings, which were that Council Member Cabrera made comments that could have been perceived as threatening or intimidating and that he belittled the former City Clerk by ignoring her. None of these partially sustained findings were found to be based on a protected class or protected activity.”

After Roll Call was taken at the October 18 regular meeting which began at 6:00 p.m., G.1
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Council M ember Baca -Santa Cruz explained her reasons for adding this censure resolution to a future agenda as follows:

“And now that we’re in open session, carrying over from the closed session, I just really wanted to put it on the record that we need some closure for that matter. There’s been unfortunate circumstances that have happened to our employees that we would never want to happen again.

I’m asking that at the next agenda we place a proposed resolution of censure against Ulises Cabrera for the mistreatmen t and disrespect of our employees. That will not be tolerated.

What I’m asking is for the council to direct you, city attorney, you, city clerk, to put a future agenda item, a resolution of censure, as well as a staff report regarding the actions taken by U. Cabrera against our city employees. We can’t tolerate that, so that’s what I’m asking, can we put that on a future agenda item?”

Again, the City Council voted to add this censure resolution by a 3 -2 vote with Mayor Gutierrez, Mayor Pro Tem Delgado and Council Member Baca -Santa Cruz voting yes, and Council Members Marquez and Cabrera voting no.

Incidentally, the names of certain City employees were redacted from the Executive Summary to protect their privacy and to insulate them from possible retalia tion for participating in the investigation.

DISCUSSION

1. Censure

The ability to censure a co -member of a legislative body is an inherent power of a legislative body. ( Whitener v. McWatters , 112 F.3d 740 (4th Cir. 1997)) “Censure” is defined in part as "an official reprimand or condemnation.” Black's Law Dictionary (11th ed. 2019). A censure is an expression of disapproval by a majority of the legislative body of the conduct of one of its members. ( Phelan v. Laramie Cty. Cmty. Coll. Bd. of Trs., 235 F.3 d 1243 (10th Cir. 2000); Braun v. City of Taft , 154 Cal. App. 3d 332, 201 Cal. Rptr. 654 (1984).) Aside from an expression of disapproval, a censure alone carries no legal effect or penalty. ( Phelan, supra ) Moreover, a censure proposal should be focused on council member conduct, so as not to infringe on a council member’s protected free speech rights. (Richard v. City of Pasadena, 889 F. Supp. 384 (1995).)

The contents of a censure have also been deemed by the California Court of Appeal to be insulated from any claims of defamation, since statements and opinions expressed in the context of a City Council meeting are subject to legislative immunity. ( Braun, supra.) In short, a censure can take the form of a reprimand or condemnation, etc. which the courts will treat merely as an opinion of a majority of the City Council that is both protected from claims of defamation and an expression of the City Council’s right to free speech.

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There are no state laws that specifically address the censure process. However , Ordinance No. 988, which was adopted by the City Council on July 5, 2022, includes as one of the Mayor’s duties, “ Approving all censures of any council member who has committed any crimes of moral turpitude or violated any city policies or regulations, subject to a majority vote of the city council .” Although is it clear that no crime of moral turpitude has been committed, it appears that the only basis for a censure in this case would be over a violation of any City policies or regulations.

2. Due Process

While under existing law, a formal censure process is not required, a council member subject to censure should be afforded with some due process, which may consist of simple notice of the potential censure and an opportunity to be heard prior to the imposition of a censure. In other words, while only minimal due process standards may apply, a council member who may be faced with the possibility of a censure should be provided with notice and an opportunity to refute the allegations. (Rodriguez (Michael) v.

Jurupa Unified Sch. Dist., No. S186503, 2010 Cal. LEXIS 11846 (2010))

In this case, there was sufficient notice provided in light of the vote that was taken at the October 18, 2022 regular City Council meeting, at which Council Member Baca -Santa Cruz made a motion to add a resolution of censure of Council Member Cabrera to a future agenda, which was seconded by Mayor Pro Tem Delgado, and approved on a 3 - 2 vote with Mayor Gutierrez, Mayor Pro Tem Delgado and Council Member Baca -Santa Cruz voting yes, a nd Council Members Marquez and Cabrera voting no. Notice of the censure resolution was also listed on the agenda for this meeting,

3. City Policies

The City has two policies that may be relevant to the matter at hand: 1) the Discrimination and Anti -Harassment Policy as set forth in the City of Moreno Valley Personnel Rules and Regulations and 2) the Standards of Ethics which are contained in the City’s Administrative Policies, both of which were approved and adopted by the City Council.

The City’s Pers onnel Rules and Regulations apply to council members since the definition of “employee” includes “an elected or appointed person occupying a position in the City employment, including City Councilmembers . . . .” As such, each council member is expected to comply with the Personnel Rules and Regulations which include complying with Section 1.85 Discrimination and Anti -Harassment Policy (the “Policy”).

The Policy provides that the City maintains a strict policy prohibiting any form of harassment, including v erbal, physical, visual, or retaliation against an employee for filing a harassment and/or discrimination complaint. According to the Policy, such harassment activities, which may have the purpose or effect of interfering with an individual’s work performa nce or creating an intimidating, hostile, or offensive working environment, are prohibited.

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The City’s Standards of Ethics as set forth in Personnel Policy # 5.04 of the City’s Administrative Policies were established as guidelines for ethical standards of conduct which govern all City officials and employees. These guidelines describe those acts or actions that are incompatible with the best interests of the City and provide positive direction to prevent breaches of ethical standards. The Standards of Et hics apply to council members since it applies to all “city officials,” which is defined to include any person holding a position by election in the service of the City. As such, each council member is expected to comply with the City’s Standards of Ethics which include observing the highest standards of ethics and discharging faithfully the duties of their offices regardless of personal considerations, recognizing that the public interest must be their primary concern. In addition, as set forth in the Stan dards of Ethics, council members are required to conduct themselves with honesty and integrity to maintain public confidence in their performance and public trust in the City of Moreno Valley.

The Policy Guidelines of the Standards of Ethics require coun cil members to treat employees with courtesy and civility and to avoid the actuality or the appearance of favoritism. Council members must also never attempt to use their authority or influence for the purpose of intimidating, threatening, or influencing a ny person with the intent of interfering with the individual’s duty to disclose unethical or illegal actions. Further, City officials shall not attempt to use their authority or influence for the purpose of retaliation against another City official or employee who reports unethical or illegal behavior.

4. Scope of Censure

As discussed above, a censure can take the form of a reprimand or condemnation, etc. which the courts will treat merely as an opinion of a majority of the City Council.

However, a censure proposal should be focused on a council member’s conduct, so as not to infringe on a council member’s protected free speech rights. ( Richard v. City of Pasadena (1995) 889 F.Supp. 384. In addition, it is important to note that a censure is an expression by the city council of their opinion of inappropriate conduct, but it is not a formal legal finding of wrongdoing. ( Little v. City of N. Miami , 805 F.2d 962 (11th Cir. 1986) [censure is a city council’s opinion regarding the propriety of a person’s activity].)

In light of the foregoing and consistent with the reasons why Council Member Baca - Santa Cruz requested to add this item to the agenda, this censure resolution Council Member Cabrera for his conduct related to the two partially sustained findings, t hat “Council Member Cabrera made comments that could have been perceived as threatening or intimidating and belittled the former City Clerk by ignoring her .” Although the Executive Summary indicates that “[n]one of these partially sustained findings were found to be based on a protected class or protected activity ,” the City Council an find and determine that such conduct violates certain City policies in that Council Member Cabrera’s conduct has been deemed by the City Council to be wholly inconsistent an d in conflict with, and thus a violation, of the following City policies:

· Section 1.85 Discrimination and Anti -Harassment Policy as set forth in the City’s Personnel Rules and Regulations that provides that the City maintains a strict policy prohibiting any form of harassment, including G.1
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verbal, physical, visual, or retaliation against an employee for filing a harassment and/or discrimination complaint and harassment activities, which may have the purpose or effect of interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment;

· The City’s Standards of Ethics as set forth in Personnel Policy # 5.04 of the City’s Administrative Policies which were established as guidelines for ethical standards of conduct which expects each council member to comply with the City’s Standards of Ethics by observing the highest standards of ethics and discharging faithfully the duties of their offices regardless of personal considerations, while recognizing that the public interest must be their primary concern;

· The City’s Standards of Ethics as set forth in Personnel Policy # 5.04 of the City’s Administrative Policies which provides that council members are required to conduct themselves with honesty and integrit y in order to maintain public confidence in their performance and maintain public trust in the City of Moreno Valley;

· The Policy Guidelines of the Standards of Ethics that requires council members to treat employees with courtesy and civility and to avo id the actuality or the appearance of favoritism;

· The Policy Guidelines of the Standards of Ethics which prohibits council members from attempting to use their authority or influence for the purpose of intimidating, threatening, or influencing any perso n with the intent of interfering with the individual’s duty to disclose unethical or illegal actions; and

· The Policy Guidelines of the Standards of Ethics which prohibits council members from attempting to use their authority or influence for the purpos e of retaliation against another City official or employee who reports unethical or illegal behavior.

5. Employee Harassment and Sensitivity Training

The proposed censure resolution contains a section that provides for purposes of informing and educating Council Member Ulises Cabrera that any form of harassment of City employees can potentially derail lives and careers and require the City to pay valuable taxpayer dollars on harassment settlements, the City Council strongly encourages and recommends that he take two hours of harassment and sensitivity training provided by the City’s Special Labor Counsel Liebert Cassidy Whitmore prior to January 1, 2023, in addition to the two hours of sexual harassment training required pursuant to ARTICLE 2.4.5. Sexual Harassment Prevention Training and Education of the California Government Code.

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FISCAL IMPACT:

There would not be a significant financial impact on the City related to the approval of the proposed censure other than the cost of training provided by the City’s Special Labor Counsel.

PREPARATION OF STAFF REPORT

Prepared By: Department Head Approval:

Steven B. Quintanilla Steven B. Quintanilla
Interim City Attorney Interim City Attorney

CITY COUNCIL GOALS

1. To observe the highest standards of ethics and discharging faithfully the duties of a council member regardless of personal considerations, while recognizing that the public interest must be their primary concern.

2. To promote and abide by the City’s strict policy prohibiting an y form of harassment, including verbal, physical, visual, or retaliation against an employee for filing a harassment and/or discrimination complaint and harassment activities, which may have the purpose or effect of interfering with an individual’s work pe rformance or creating an intimidating, hostile, or offensive working environment.

CITY COUNCIL GOALS
None

CITY COUNCIL STRATEGIC PRIORITIES

1. Economic Development

2. Public Safety

3. Library

4. Infrastructure

5. Beautification, Community Engagement, and Quality of Life

6. Youth Programs

ATTACHMENTS
To view large attachments, please click your “bookmarks” on the left hand side of this document for the necessary attachment.

1. Executive Summary_Redacted
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2. CENSURE RESOLUTION (10.27.2022) [sbq]

APPROVALS

Budget Officer Approval ✓ Approved . 10/27/22 4:47 PM City Attorney Approval ✓ Approved .

City Manager Approval ✓ Approved . 10/27/22 4:50 PM G.1
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10248881.1 MO140-019

LIEBERT CASSIDY WHITMORE

MEMORANDUM

CONFIDENTIAL AND ATTORNEY WORK PRODUCT

CONFIDENTIAL AND ATTORNEY-CLIENT PRIVILEGED

ATTORNEY-CLIENT PRIVILEGED

WAIVED BY CITY COUNCIL ON
10/18/2022
DATE: October 12, 2022 CLIENT-MATTER NO.: MO140/019
TO: Steven B. Quintanilla, Interim City Attorney
City of Moreno Valley
FROM: Danny Y. Yoo, Special Counsel
RE: Executive Summary of Investigation Report
On or around November 9, 2021, former City Clerk Pat Jacquez-Nares complained about possible discrimination, harassment, and retaliation by Council Members Ulises Cabrera and David Marquez. The City of Moreno Valley retained, via Special Labor Counsel, outside attorney Danielle Drossel of the Oppenheimer Investigation Group to investigate the allegations. Ms.

Drossel interviewed eight witnesses and reviewed relevant documents.

Ms. Drossel was tasked to investigate the following:

1. Did Council Member Ulises Cabrera make comments or engage in conduct toward former City Clerk Pat Jacquez-Nares that could reasonably be perceived as threatening or intimidating? If so, what were the comments and circumstances?

2. Did Council Member Ulises Cabrera speak to former City Clerk Pat Jacquez-Nares in a belittling or derogatory manner? If so, did he do so because of her gender?

3. On or around November 9, 2021, did Council Member David Marquez tell that former City Clerk Pat Jacquez-Nares was “not going to come back to work anymore,” or words to that effect? If so, did Marquez make the comment to threaten or intimidate Jacquez-Nares?

4. Did Council Member Ulises Cabrera and Council Member David Marquez attempt to pressure or influence to make a
complaint or grievance against former City Clerk Pat Jacquez-Nares? If so, did they do so because Jacquez-Nares made a complaint against Cabrera and Marquez? On September 9, 2022, Ms. Drossel completed her investigation report and did not sustain any allegations of unlawful discrimination, harassment, or retaliation.

There were two only two partially sustained findings, which were that Council Member Cabrera made comments that could have been perceived as threatening or intimidating and that he belittled Ms. Jacquez-Nares by ignoring her. None of these partially sustained findings were found to be based on a protected class or protected activity.

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Attachment: Executive Summary_Redacted (5995 : RESOLUTION OF CENSURE) Resolution No. 2022-XX
Date Adopted: ______ __, 2022

RESOLUTION NO. 2022-____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

MORENO VALLEY, CALIFORNIA, APPROVING THE

CENSURE OF COUNCIL MEMBER UL ISES CABRERA FOR

VIOLATING CITY POLICIES AND RECOMMENDING TWO

HOURS OF HARASSMENT AND SENSITIVITY TRAINING

WHEREAS, on or around November 9, 2021, former City Clerk Pat Jacquez-Nares complained about possible discrimination, harassment, and retaliation by Council Members Ulises Cabrera and David Marquez; and

WHEREAS, the allegations contained in the complaint were investigated by an independent investigator who interviewed witnesses and reviewed relevant documents; and

WHEREAS, an Executive Summary dated October 22, 2022, attached hereto, was prepared by Special Counsel Danny Yoo of the Law Firm of Liebert Cassidy Whitmore, who coordinated the investigation; and

WHEREAS, the Executive Summary provided t hat at the conclusion of the investigation none of the allegations of unlawful discrimination, harassment, or retaliation were sustained, but there were two partially sustained findings that Cou ncil Member Cabrera made comments that could have been perceived as threatening or intimidating and that he belittled the former City Clerk by ignoring her, albeit none of these partially sustained findings were found to be based on a protected class or protected activity; and

WHEREAS, at the October 18, 2022, regular City Council meeting, Council Member Elena Baca-Santa Cruz made a motion to add a proposed resolution of censure of Council Member Ulises Cabrera to a future agenda, which was seconded by Mayor Pro Tem Ed Delgado, and approved on a 3-2 vote with Mayor Dr. Yxstian Gutierrez, Mayor Pro Tem Ed Delgado and Council Member Elena Baca -Santa Cruz voting yes, and Council Members David Marquez and Ulises Cabrera voting no; and

WHEREAS, the ability to censure a co -member of a legislative body is an inherent power of a legislative body per Whitener v. McWatters, 112 F.3d 740 (4th Cir. 1997); and

WHEREAS, “censure” is defined in part as "an official reprimand or condemnation per Black's Law Dictionary (11th ed. 2019); and

WHEREAS, a censure is an expression of disapproval by a majority of the legislative body of conduct of one of its members per Phelan v. Laramie Cty. Cmty. Coll. Bd. of Trs. , G.1.b
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Date Adopted: ______ __, 2022

235 F.3d 1243 (10th Cir. 2000) and Braun v. City of Taft , 154 Cal. App. 3d 332, 201 Cal.

Rptr. 654 (1984); and

WHEREAS, the contents of a censure have been deemed by the California Court of Appeal to be insulated from any claims of defamation, since statements and opinions expressed in the context of a City Council meeting are subject to legislative immunity. (Braun, supra.); and

WHEREAS, in summary, a censure can take the form of a reprimand or condemnation, etc. which the courts will treat merely as an opinion of a majority of the City Council that is both protected from claims of defamation and an expression of the City Council’s right to free speech; and

WHEREAS, there are no state laws that specifically address the censure process ; however, Ordinance No. 988, which was adopted by the City Council on July 5, 2022 , includes as one of the Mayor’s duties, “Approving all censures of any council member who has committed any crimes of moral turpitude or violated any city policies or regulations, subject to a majority vote of the city council.”; and

WHEREAS, although is it clear that no crime of moral turpitude has been committed, it appears that the only basis for a censure in this case would be over a violation of any City policies or regulations; and

WHEREAS, while under existing law a formal censure process is not required, minimal due process standards should be applied by providing the council member who may be faced with the possibility of a censure be provided with notice and an opportunity to refute the allegations per Rodriguez v. Jurupa Unified Sch. Dist., No. S186503, 2010 Cal.

LEXIS 11846 (2010); and

WHEREAS, there was sufficient notice provided in light of the vote that was taken at the October 18, 2022 regular City Council meeting, at which Council Member Baca -Santa Cruz made a motion to add a resolution of censure of Council Member Cabrera to a future agenda, which was seconded by Mayor Pro Tem Delgado, and approved on a 3-2 vote with Mayor Gutierrez, Mayor Pro Tem Delgado and Council Member Baca -Santa Cruz voting yes, and Council Members Marquez and Cabrera voting no, and notice of the resolution of censure was also l isted on the agenda for the November 1, 2022, regular City Council meeting; and

WHEREAS, a censure is an expression by the city council of their opinion of inappropriate conduct and it is not a formal legal finding of wrongdoing. ( Little v. City of N.

Miami, 805 F.2d 962 (11th Cir. 1986) [censure is City Council’s opinion regarding the propriety of a person’s activity and does not have force of law].); and

WHEREAS, the City Council has adopted the following two policies : 1) the Discrimination and Anti -Harassment Policy as set forth in the City of Moreno Valley G.1.b
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Date Adopted: ______ __, 2022

Personnel Rules and Regulations and 2) the Standards of Ethics which are contained in the City’s Administrative Policies; and

WHEREAS, the City’s Personnel Rules and Regu lations apply to council members since the definition of “e mployee” includes “an elected or appointed person occupying a position in the City employment, including City Councilmembers . . . .” ; and

WHEREAS, Section 1.85 Discrimination and Anti -Harassment Policy of the Personnel Rules and Regulations provides that the City maintains a strict policy prohibiting any form of harassment, including verbal, physical, visual, or retaliation against an employee for filing a harassment and/or discrimination complaint; and

WHEREAS, Section 1.85 Discrimination and Anti -Harassment Policy of the Personnel Rules and Regulations provides further provides that harassment activities, which may have the purpose or effect of interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment, are prohibited; and

WHEREAS, the City’s Standards of Ethics as set forth in Personnel Policy # 5.04 of the City’s Administrative Policies were established as guidelines for ethical s tandards of conduct which applies to council members and describe those acts or actions that are incompatible with the best interests of the City and provide positive direction to prevent breaches of ethical standards; and

WHEREAS, each council member is expected to comply with the City’s Standards of Ethics which include observing the highest standards of ethics and discharging faithfully the duties of their offices regardless of personal considerations, recognizing that the public interest must be their primary concern; and

WHEREAS, In addition, as set forth in the Standards of Ethics, council members are required to conduct themselves with honesty and integrity to maintain public confidence in their performance and public trust in the City of Moreno Valley; and

WHEREAS, the Policy Guidelines of the Standards of Ethics require council members to treat employees with courtesy and civility and to avoid the actuality or the appearance of favoritism. Council members must also never attempt to use their authority or influence for the purp ose of intimidating, threatening, or influencing any person with the intent of interfering with the individual’s duty to disclose unethical or illegal actions; and

WHEREAS, the Policy Guidelines of the Standards of Ethics further provides that City officials shall not attempt to use their authority or influence for the purpose of retaliation against another City official or employee who reports unethical or illegal behavior.

NOW, THEREFORE, the City Council of the City of Moreno Valley does hereby resolve as follows:

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Date Adopted: ______ __, 2022

Section 1. RECITALS

That the Recitals set forth above are true and correct, and are hereby incorporated herein by this reference , and are hereby adopted as findings in support of this Censure Resolution.

Section 2. ATTACHMENT AND STAFF REPORT

That the Executive Summary attached to this Censure Resolution, the Staff Report prepared for this Censure Resolution and all documents referenced herein are hereby incorporated herein by this reference, and are hereby adopted as findings in support of this Censure Resolution.

Section 3. INTENT AND PURPOSE

That the intent and purpose of this Censure Resolution is to express the City Council’s opinion that Council Member Ulises Cabrera engaged in inappropriate conduct, and it is not to be interpreted as a formal legal finding of wrongdoing.

Section 4. NOTICE

That sufficient notice of this Censure R esolution was provided to Council Member Ulises Cabrera in light of the vote tha t was taken at the October 18, 2022 regular City Council meeting, at which Council Member Baca -Santa Cruz made a motion to add a resolution of censure of Council Member Cabrera to a future agenda, which was seconded by Mayor Pro Tem Delgado, and approved o n a 3-2 vote with Mayor Gutierrez, Mayor Pro Tem Delgado and Council Member Baca -Santa Cruz voting yes, and Council Members Marquez and Cabrera voting no , and notice of this Censure Resolution was also listed on the agenda for the November 1, 2022, regular City Council meeting.

Section 5. OPPORTUNITY TO REFUTE

That Council Member Ulises Cabrera has been provided with an opportunity to refute any of the allegations related to this Censure Resolution.

Section 6. FINDINGS AND DETERMINATIONS

That the City Council finds and determines that Council Member Ulises Cabrera’s conduct was wholly inconsistent and in conflict with the following City policies:

• Section 1.85 Discrimination and Anti -Harassment Policy as set forth in the City’s Personnel Rules and Regulations that provides that the City maintains a strict policy prohibiting any form of harassment, including verbal, physical, visual, or retaliation against an employee for filing a harassment and/or discrimination complaint and har assment activities, which may have the G.1.b
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purpose or effect of interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment;

• The City’s Standards of Ethics as set forth in Personnel Policy # 5.04 of the City’s Administrative Policies which were established as guidelines for ethical standards of conduct which expects each council member to comply with the City’s Standards of Ethics by observing the highest standards of ethics and discharging faithfull y the duties of their offices regardless of personal considerations, while recognizing that the public interest must be their primary concern;

• The City’s Standards of Ethics as set forth in Personnel Policy # 5.04 of the City’s Administrative Policies which provides that council members are required to conduct themselves with honesty and integrity in order to maintain public confidence in their p erformance and maintain public trust in the City of Moreno Valley;

• The Policy Guidelines of the Standards of Ethics that requires council members to treat employees with courtesy and civility and to avoid the actuality or the appearance of favoritism;

• The Policy Guidelines of the Standards of Ethics which prohibits council members from attempting to use their authority or influence for the purpose of intimidating, threatening, or influencing any person with the intent of interfering with the individual’s duty to disclose unethical or illegal actions; and

• The Policy Guidelines of the Standards of Ethics which prohibits council members from attempting to use their authority or influence for the purpose of retaliation against another City official or employe e who reports unethical or illegal behavior.

Section 7. CENSURE

That the City Council hereby censures Council Member Ulises Cabrera based on the City Council’s opinion that Council Member Ulises Cabrera’s conduct toward the former City Clerk, which the Executive Summary concluded could have been perceived as threatening or intimidating, is wholly inconsistent and in conflict with and thus a violation of the City policies described in Section 6 of this Resolution.

Section 8. EMPLOYEE HARASSMENT AND SENSITIVITY

TRAINING

That for purposes of informing and educating Council Member Ulises Cabrera that any form of harassment of City employees can potentially derail their lives and careers and require the City to pay valuable taxpayer dollars on harassment settlements, the City G.1.b
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Date Adopted: ______ __, 2022

Council strongly encourages and recommends that Council Member Ulises Cabrera t ake two hours of harassment and sensitivity training provided by the City’s Special Labor Counsel Liebert Cassidy Whitmore prior to January 1, 2023, in addition to the two hours of sexual harassment training required pur suant to ARTICLE 2.4.5. Sexual Harassment Prevention Training and Education of the California Government Code.

Section 9. EFFECTIVE DATE

That this Censure Resolution shall take effect immediately upon adoption.

Section 10. SEVERABILITY

That should any provision, section, paragraph, sentence or word of this Censure Resolution be rendered or declared invalid by any final court action in a court of competent jurisdiction or by reason of any preemptive legislation, the remaining provisions, sections, paragraphs, sentences or words of this Censure Resolution as hereby adopted shall remain in full force and effect.

Section 11. REPEAL OF CONFLICTING PROVISIONS

That all the provisions heretofore adopted by the City Council that are in conflict with the provisions of this Censure Resolution are hereby repealed.

Section 12. CERTIFICATION

That the City Clerk shall certify to the passage and adoption of this Censure Resolution and enter it into the book of original resolutions.

APPROVED AND ADOPTED this ______ day of ____________ 2022.

_______________________________
Dr. Yxstian A. Gutierrez
Mayor
City of Moreno Valley

ATTEST:

____________________________________
Jane Halstead, City Clerk

APPROVED AS TO FORM:

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____________________________________
Steven B. Quintanilla, Interim City Attorney

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ATTACHMENT

EXECUTIVE SUMMARY

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RESOLUTION JURAT

STATE OF CALIFORNIA )

COUNTY OF RIVERSIDE ) ss.

CITY OF MORENO VALLEY )

I, , City Clerk of the City of Moreno Valley, California, do hereby certify that Resolution No. was duly and regularly adopted by the City Council of the City of Moreno Valley at a regular meeting thereof held on the day of , by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

(Council Members, Mayor Pro Tem and Mayor)

CITY CLERK

(SEAL)
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Report to City Council

ID#5996 Page 1
TO: Mayor and City Council

FROM: Steve Quintanilla, Interim City Attorney
Steve Quintanilla, Interim City Attorney

AGENDA DATE: November 1, 2022

TITLE: SUMMARY REPORT OF 2021 BROWN ACT VIOLATION

PROCEEDINGS RELATED TO APPOINTMENT OF LA

DONNA JEMPSON TO THE CITY COUNCIL

RECOMMENDED ACTION

1. That the City Council receive and file this Summary Report and take whatever additional action it deems necessary under the circumstances.

BACKGROUND

At the October 18, 2022, regular City C ouncil meeting, Council Member Elena Baca - Santa Cruz requested that this item be placed on the next City Council meeting agenda.

However, since her request was not presented in the form of a motion, there was no second and no vote taken on her request to a dd this item as future agenda item.

Pursuant to Section 3.1 AGENDA ITEMS of the Rules of Procedure for Council Meetings and Related Functions and Activities, “Items may also be placed on the agenda of any regular, special meeting, or study session with the consent of a majority of the City Council obtained during a public meeting of the City Council.”

Notwithstanding the above, the Mayor subsequently placed the item on the agenda for the City Council’s consideration. The Mayor was authorized to place thi s item on the agenda pursuant to Section 3.1 AGENDA ITEMS which also provides that “ Items may be placed on the agenda of any regularly scheduled meeting of the City Council by the Mayor . . .. .”

PURPOSE

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The purpose of this staff report is to provide a s ummary of the proceedings related to the Demands to Cure and Correct the alleged Ralph M. Brown Act violations related to the October 19, 2021, appointment of LaDonna Jempson to fill the District 1 Council Member vacancy, resulting from the October 5, 2021 passing of the late Mayor Pro Tem/District 1 Council Member Victoria Baca. The City was served with several of these Demands by Assistant District Attorney Elaina Bently on behalf of Michael Hestrin, District Attorney for the County of Riverside, Assista nt General Counsel Shaila Nathu on behalf of Californians Aware - The Center for Public Forum Rights, and the Law Offices of Stone Busailah, LLP on behalf of Moreno Valley resident Robert Palomarez.

OCTOBER 6, 2021 - VACANCY CREATED ON CITY COUNCIL

On Oc tober 6, 2021, the District 1 City Council seat became “vacant” by the unexpected passing of the late Mayor Pro Tem/Council Member Victoria Baca. Earlier in 2021, the District 2 City Council seat became “vacant” by the unexpected passing of the late Counci l Member Dr. Carla Thornton. A Special Election was called for November 9, 2021, to fill the vacant District 2 seat. Due to the passing of the two Council Members, this meant that on the day of October 19, 2022, the City Council had only three members: Ma yor Dr. Yxstian Gutierrez, District 3 Council Member David Marquez and District 4 Council Member Ulises Cabrera.

OCTOBER 19, 2021 – CITY COUNCIL AGENDA ITEMS

On October 19, 2021, after the passing of Mayor Pro Tem/Council Member Victoria Baca, a regular City Council meeting was held. Included on the “General Business” calendar of the October 19, 2021 Agenda, was the following item:

G.2. CITY COUNCIL DIRECTION REGARDING FILLING CITY
COUNCIL DISTRICT 1 VACANCY (Report of: City Clerk)

Recommendations: That the City Council:

1. Direct the City Clerk to prepare the application for persons interested in being appointed by the City Council to fill the District 1 vacancy, until such time the person who is officially elected to the District 1 seat at the next Gen eral Municipal Election, held on November 1, 2022, is officially installed on the City Council.

2. Direct the City Clerk to prepare the requisite resolutions and related documents calling for a Special Election on April 11, 2022, for the eligible voters of District No. 1 to vote for who they want to fill the full remaining unexpired term of the vacated seat, which expires in December 2024.

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For this item, the City Clerk prepared a Staff Report which was included in the October 19, 2021 agenda packet. As d escribed in the Staff Report, under the particular circumstances, within 60 days of a vacancy (caused by the death of a Council Member), the City Council must either: (1) appoint someone to fill the vacancy until the person elected to fill the District 1 s eat at the City’s General Municipal Election on November 1, 2022 is officially installed to fill the subject vacancy through the remaining unexpired term of the vacated seat; or (2) call a Special Election to fill the vacancy for the unexpired term of the vacated seat which expires in December 2024.

In light of the foregoing, the City Clerk recommended in the October 19, 2021 Staff Report that the City Council consider the following actions, which were identical to what appeared in the agenda as Item G.2 on the General Business Calendar:

1. Direct the City Clerk to prepare the application for persons interested in being appointed by the City Council to fill the District 1 vacancy, until such time the person who is officially elected to the District 1 seat at the next General Municipal Election, held on November 1, 2022, is officially installed on the City Council.

Incidentally, the October 19, 2021 Staff Report was based on the fact that the subject vacancy occurred d uring the first half of the late Mayor Pro Tem Victoria Baca’s unexpired term on the Moreno Valley City Council, which was scheduled to expire in 2024. Ms. Baca was most recently reelected to the City Council on November 2, 2020, and the vacancy occurred o n October 6, 2021, which fell within the first half of her unexpired term.

OCTOBER 19, 2021 - CITY COUNCIL REGULAR MEETING QUORUM

ATTENDANCE

Again, at the time of the October 19, 2021, regular City Council meeting, there were only three members on the City Council consisting of Mayor Gutierrez, District No. 3 Council Member Marquez, and District No. 4 Council Member Cabrera. As such, according to Section 36810 of the California Government Code and Section 3.3.1 of the Rules of Procedure for Council Meet ings and Related Functions and Activities, since there were (at that time) only three Council Members, two of the three would be sufficient to establish a quorum for purposes of calling the October 19, 2021 City Council meeting to order, since a majority o f the City Council at that time was just two of three Council Members.

When determining whether a quorum exists for purposes of deciding whether the Moreno Valley City Council may meet and take action as a legislative body, one must consider the Ralph M. Brown Act, the Rules of Procedure for Council Meetings and G.2
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Related Functions and the Standard Code of Parliamentary Procedure. Pursuant to Section 36810 of the California Government Code, a majority of the City Council constitutes a quorum for transactio n of business. This is consistent with Section 3.2 of the Rules of Procedure for Council Meetings and Related Functions and Activities, attached hereto, which provides as follows:

3.3. QUORUM AND REQUIRED MAJORITIES

3.3.1. MAJORITY QUORUM AND MAJORITY VOTE.

Unless otherwise provided for in the Municipal Code or by state law, a majority of the City Council shall be a quorum sufficient to do business and motions may be passed 2-1 if only 3 attend.

Under Chapter 13 (Quorum) of the Standard Code of Parlia mentary Procedure, it provides that “[i]n computing a quorum, only members in good standing are counted.”

In light of the “quorum” rules, as articulated in Section 36810 of the California Government Code, Section 3.2 of the Rules of Procedure for Council Meetings and Related Functions and Activities and Chapter 13 of the Standard Code of Parliamentary Procedure, it was clear that as of October 19, 2021, since there were only three Council Members, 2 of the 3 constituted the necessary quorum for calling the City Council’s October 19, 2021, regularly scheduled meeting to order. As such, the two Council Members present at the October 19, 2021 meeting could have voted to provide the direction sought by the City Clerk with respect to directing the City Clerk to either: 1) prepare the application for persons interested in being appointed by the City Council to fill the District 1 vacancy, until such time the person who is officially elected to the District 1 seat at the next General Municipal Election, held on No vember 1, 2022, is officially installed on the City Council; or 2) prepare the requisite resolutions and related documents calling for a Special Election on April 11, 2022, for the eligible voters of District No. 1 to vote for who they want to fill the ful l remaining unexpired term of the vacated seat, which expires in December 2024.

OCTOBER 19, 2021 - VOTING REQUIREMENTS AND REMOVAL OF VARIOUS

AGENDA ITEMS FROM CITY COUNCIL AGENDA

While Section 3.3.1. (Majority Quorum and Majority Vote) of the Rules of Procedure for Council Meetings and Related Functions and Activities provides that “a majority of the City Council shall be a quorum sufficient to do business and motions may be passed 2-1 if only 3 attend,” certain types of actions require three affirmative votes. For instance, Section 3.3.2. (Matters Requiring Three Votes) of the Rules of Procedure for Council Meetings and Related Functions and Activities, as set forth below, the following matters, require three affirmative votes: “(a) adoption of ordinanc es; (b) resolutions granting franchises, (c) resolutions amending the general plan; and (d) orders or appropriations for payment or expenditure of money.” Incidentally, although under Section 36936 of the California Government Code, as set forth below, onl y a majority of the quorum (2 of 3 as of October 19, 2021) would have been authorized to G.2
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approve ordinances, resolutions and orders for the payment of money, Section 3.3.2 takes precedence over California Government Code Section 36936, which means that “three affirmative votes” (regardless of the total membership of the City Council) were required to approve the items described in Section 3.3.2 of the Rules of Procedure for Council Meetings and Related Functions and Activities, as set forth below:

RULES OF PROCEDURE FOR COUNCIL MEETINGS AND RELATED

FUNCTIONS AND ACTIVITIES

3.3.2. MATTERS REQUIRING THREE VOTES.

The following matters, however, require three affirmative votes: (a) adoption of ordinances; (b) resolutions granting franchises, (c) resolutions amending the general plan; and (d) orders or appropriations for payment or expenditure of money.
***
GOVERNMENT CODE SECTION 36936.

Resolutions, orders for the payment of money, and all ordinances require a recorded majority vote of the total membership of the city council.

In light of the foregoing, after a discussion involving the Interim City Attorney, City Manager, Assistant City Manager/Chief Financial Officer/City Treasurer, and City Clerk, before the October 19, 2021 meeting was called to orde r, it was recommended that the following items be removed from the October 19, 2021 agenda for future consideration since each would require “three affirmative votes” to approve since they required the expenditure of money. Although the appointment of the Mayor Pro Tem did not require the expenditure of money, Section 4.1.3. (Selection Process) of the Rules of Procedure for Council Meetings and Related Functions and Activities provides that the appointment of the Mayor Pro Tem requires three or more affirmative votes.

The items removed from the October 19, 2021 Agenda included the following:

A.5. PAYMENT REGISTER- AUGUST 2021
A.7. AUTHORIZATION TO AWARD A CONSTRUCTION

CONTRACT TO ALL AMERICAN ASPHALT FOR THE

HEACOCK STREET PEDESTRIAN AND BICYCLE

FACILITY ENHANCEMENTS NEAR GREGORY LANE,
PROJECT NO. 801 0076
A.8. ACCEPTANCE OF LOCAL ROADWAY SAFETY PLAN
(LRSP) GRANT FUNDING
A.9. AUTHORIZATION TO AWARD AN AGREEMENT TO FEHR
& PEERS FOR THE LOCAL ROADWAY SAFETY PLAN
FOR MORENO VALLEY (PROJECT NO. 810 0020)
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A.11 ACCEPT AND RECEIVE A GRANT AWARD FROM THE

CALIFORNIA STATE LIBRARY, CALIFORNIA LIBRARY

LITERACY SERVICES PROGRAM
B.4 AUTHORIZATION TO AWARD A CONSTRUCTION

CONTRACT TO MUSCO SPORTS LIGHTING, LLC FOR

SPORTS LIGHTING AT EL POTRERO PARK, (PROJECT
NO. 807 0059)
G.3. CITY COUNCIL REORGANIZATION - SELECTION OF

MAYOR PRO TEM

The items that remained on the October 19 Agenda consisted of items that did not involve the adoption of an ordinance, the adoption of a resolution granting a franchise or amending the City’s General Plan, nor did they involve any orders or appropriations for payment or expenditure of money. This meant that General Business Item G.2 remained on the October 19, 2021 Agenda as follows:

1. Direct the City Clerk to prepare the application for persons interested in being appointed by the City Council to fill the District 1 vacancy, until such time the person who is officially elected to the District 1 seat at the next General Municipal Election, held on November 1, 2022, is officially installed on the City Council.

Item G.2 was simply seeking direction on whether the City Clerk should prepare the necessary documents for either appointing or calling a special election to fill the District 1 City C ouncil vacancy, which did not require three affirmative votes since there was no “Fiscal Impact” at the time related to the requested direction.

OCTOBER 19, 2021 - ACTION TAKEN AT CITY COUNCIL MEETING

Again, at the October 19, 2021 regular City Council meeting, only two Council Members attended, which at that time constituted a quorum since there were only three members on the City Council – Mayor Gutierrez, Council Member Marquez and Council Member Cabrera. According to the draft minutes of the October 19, 2021 meeting, “Council Member Marquez moved to appoint Dolores LaDonna Jempson.” The draft minutes also reflect that “Council Member Cabrera seconded the motion.” After some back and forth discussion between Council Members Marquez and Cabrera, the C ity Clerk and the Interim City Attorney, a recessed was called at 6:55 p.m. After the meeting was reconvened at 7:07 p.m., “Council Member Marquez asked City Clerk Jacquez-Nares to swear-in Ms. Jempson.” In response to Council Member Marquez’s request, th e draft minutes reflect that “City Clerk Jacquez -Nares administered the oath to Deloris [sic] LaDonna Jempson.” Council Member Jempson G.2
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then took her seat on the dais, according to the draft minutes. The draft minutes memorialized the action taken at the October 19th meeting as follows:

RESULT: APPROVED [UNANIMOUS]
MOVER: David Marquez, Council Member
SECONDER: Ulises Cabrera, Council Member
AYES: David Marquez, Ulises Cabrera
ABSENT: Dr. Yxstian A. Gutierrez

SEPTEMBER 14, 2013 CITY COUNCIL MEETING MINUTES

The minutes of the October 19, 2021 City Council meeting also reflected that:

“Council Member Marquez remarked that he understood and questioned how this circumstance is any different from one that occurred in 2013/14 where a Council Member was ap pointed with no prior notification. He asked if the issue stemmed from the wording on the agenda.

Interim City Attorney Quintanilla stated the specific request is to provide direction to staff, to the City Clerk's office.

Council Member Marquez declared his direction to the City Clerk at that time was to appoint and there was no difference from the appointment in 2013/14.”

Although the information was not readily available at the time to permit either the City Clerk or the Interim City Attorney to prop erly respond to Council Member Marquez’s inquiry during the October 19, 2021 meeting, regarding the 2013/14 appointment, it was discovered the next day upon review of the m inutes of the September 24, 2013, City Council Regular Meeting of the City of Moreno Valley, that the following item was on the September 24, 2013 Agenda:

G.1 CONSIDER THE PROCEDURAL OPTIONS TO FILL THE
VACANCY ON THE COUNCIL IN DISTRICT 4 AND TAKE

POSSIBLE ACTION TO FILL THE VACANCY
(Report of: City Attorney Department)

Recommendations That the City Council: Consider the various procedural options to fill the vacant Council seat in District 4 and take possible action to fill the vacancy by appointment or by calling for an election.

The September 24, 2013 minutes reflect that Tom Owin gs opened the agenda item for public comments, after which a there was a “Motion to approve Dr. Yxstian Gutierrez to the City Council of the City of Moreno Valley to fill the unexpired term of resigned Council Member Co to end December 9, 2014,” made by fo rmer Council Member G.2
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Victoria Baca, which was seconded by former Council Member Jesse Molina, and which was “Approved by a vote of 3-1, Council Member Richard A. Stewart opposed.”

OCTOBER 22, 2021 - CALIFORNIANS AWARE’S BROWN ACT CURE AND

CORRECT LETTER

On October 22, 2021, Assistant General Counsel Shaila Nathu of Californians Aware sent an email to the Mayor at [email protected], David Marquez at [email protected], and Ulises Cabrera at [email protected], with the “Subject” line reading “Brown Act Demand & CPRA Request – Appointment of LaDonna Jempson.” The email contained the following message:

“Moreno Valley City Councilmembers:

Please see attached for a Brown Act demand and a California Public Records Act req uest regarding the appointment of LaDonna Jempson at the October 19, 2021 City Council meeting. We look forward to hearing from you.”

Attached to the email was a letter, dated October 22, 2021, attached hereto, addressed to the City Council, City of Moreno Valley, regarding the following:

“Brown Act Demand for Cure and Correction (Gov’t. Code §§ 54960, 54960.1 & 54960.2) AND Public Records Act Request (Gov’t. Code § 6250, et seq.)”

The October 22nd letter stated, in part, as follows:

“Dear City Council:

This demand is made on behalf of Californians Aware and a group of concerned citizens alarmed by the sudden appointment of LaDonna Jempson to the District 1 seat on Moreno Valley City Council, in violation of the Ralph M. Brown Act, Government Code sec tion 54950, et seq. (“Brown Act”). The action must be rescinded to ensure that the public has a meaningful opportunity to participate in the decision - making process.”

The October 22nd letter also included the following “Demand.”

Demand

“In order to ensu re that the public has the ability to meaningfully participate in the appointment of Councilmember Jempson, Californians Aware hereby demands that, pursuant to Government Code sections 54960 and 54960.1, the Board cure and correct its G.2
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illegal actions by re scinding the appointment and swearing in of Councilmember Jempson.

Additionally, pursuant to Government Code sections 54960 and 54960.2, the City Council must agree to refrain from taking action on items not listed on the posted agenda in the future, unl ess one of the stated exceptions as listed in the Brown Act applies.

The City Council must notify this office of its decision to cure and correct as described, or of its refusal to do so, within 30 days. If the City Council fails or refuses to cure and c orrect or respond as demanded, we intend to seek judicial invalidation of the challenged actions pursuant to § 54960.1, as well as other relief set out in § 54960.”

Section 54960.1(c)(3) of the California Government Code provides, in relevant part, as follows:

“If the legislative body takes no action within the 30 -day period, the inaction shall be deemed a decision not to cure or correct the challenged action, and the 15 -day period to commence the action described in subdivision (a) shall commence to run the day after the 30-day period to cure or correct expires.”

Section 54960.1(a) of the California Government Code provides as follows:

“The district attorney or any interested person may commence an action by mandamus or injunction for the purpose of obt aining a judicial determination that an action taken by a legislative body of a local agency in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956, or 54956.5 is null and void under this section. Nothing in this chapter shall be construed to prev ent a legislative body from curing or correcting an action challenged pursuant to this section.”

Basically, Section 54960.1 of the California Government Code provides that if the City Council does not “cure or correct” the alleged Brown Act violation, wit hin the requisite 30-day period, the person/entity which sent the demand to cure or correct, has 15 days to file a Brown Act violation lawsuit against the City.

Section 54960 of the California Government Code, on the other hand, provides in relevant part as follows:

(a) The district attorney or any interested person may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislativ e body of a local agency or to determine the applicability of this chapter to ongoing actions or G.2
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threatened future actions of the legislative body, or to determine the applicability of this chapter to past actions of the legislative body, subject to Section 54960.2, or to determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid or invalid under the laws of this state or of the United States, or to compel the legisl ative body to audio record its closed sessions as hereinafter provided.

OCTOBER 22, 2021 – ROBERT PALOMAREZ CEASE AND DESIST LETTER

On October 22, 2021, the Law Offices of Stone Busailah, LLP on behalf of Moreno Valley resident Robert Palomarez, submitte d a Cease and Desist letter to the City Council alleging that the City Council violated the Ralph M. Brown Act when it appointed LaDonna Jempson to the City Council at the October 19, 2021 City Council meeting.

The stated purpose of the October 22, 2021, letter was to provide the City Council with “an opportunity to avoid litigation over the ill -timed and ill -advised appointment of LaDonna Jempson to the Moreno Valley City Council seat which was held by Victoria Baca . . . .” The October 22, 2021, letter purports that the appointment of LaDonna Jempson to the Moreno Valley City Council was “a violation of several provisions of the Brown Act, which involves meetings of legislative public bodies at local levels of government.” The October 22, 2021, letter further stated as follows:

“First and foremost, among the derelictions of duty committed by City Council Members in this matter, was to make the appointment when such decision - making and action were not items on the October 19, 2021 agenda. The item on th e agenda regarding the open seat involved directing the City Clerk in preparing applications for potential appointees to the vacancy. I Moreno Valley City Council Re: Moreno Valley City Council Seat October 22, 2021.

Appointing a new member and filling the vacancy immediately was not on the agenda. Such action violated the Brown Act' s requirements for a city council to provide: notice of each item of business to be voted on at a council meeting; a brief, general description of each item of business to be t ransacted or discussed; and description of each distinct action to be taken by the council.

As you must be aware, such requirements enable informed decision- making by the public whether to attend a council meeting or participate in a discussion on an issu e. See Govt Code § 54954. 2(a)(1), (a)(3).) In essence, the Brown Act proscribes an act taken or discussion about any item not appearing on the posted agenda.

As the immediate appointment to fill the open seat was not an act appearing on the posted agenda, the City Council' s appointment of Ms. Jempson was a proscribed act. Furthermore, no public comments were permitted prior to the appointment, which is a further Brown Act violation. Unless the Council complies with State G.2
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and City law and revokes the appoi ntment of Ms. Jempson to the City Council, litigation will ensue. Pursuant to the remedy found in the - Brown Act, Mr. Palomarez intends to seek a preliminary injunction from the Superior Court and an order to vacate the appointment of Ms. Jempson as a Cit y Council Member; an order that the City Council only take action on items put on the agenda, consistent with City and State law; and an order that the Council desists from further violating such Brown Act and municipal provisions. In other words, the Coun cil must immediately act to invalidate its illegal action.”

Section 54960.1(c)(3) of the California Government Code provides, in relevant part, as follows:

Section 54960.1(a) of the California Government Code provides as follows:

Nothing in this chapter shall be construed to prevent a legislative body from curing or correcting an action challenged pursuant to this section.”

Basically, Section 54960.1 of the California Government Code provides that if the City Council does not “cure or correct” the alleged Brown Act violation, within the requisite 30-day period, the person/entity which sent the demand to cure or correct, has 15 days to file a Brown Act violation lawsuit against the City.

Section 54960 of the California Government Code provides in relevant part as follows:

“(a) The district attorney or any interested person may commence an action by mandamus, injunction, or decl aratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to ongoing actions or threatened future acti ons of the legislative body, or to determine the applicability of this chapter to past actions of the legislative body, subject to Section 54960.2, or to determine whether any rule or action by the legislative body to penalize or G.2
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otherwise discourage the expression of one or more of its members is valid or invalid under the laws of this state or of the United States, or to compel the legislative body to audio record its closed sessions as hereinafter provided.”.

In light of the foregoing, the City Council had until November 21, 2021, which was the 30th day following the October 22, 2021 “Brown Act Demand for Cure and Correction” letter received from Robert Palomarez.

OCTOBER 27, 2021 - SPECIAL CITY COUNCIL MEETING

A Special Meeting was called to be held o n Wednesday, October 27, 2021, commencing at 6:00 p.m. for the purpose of discussing the following matters:

A. BUSINESS

A.1 REQUEST TO PLACE ON A FUTURE AGENDA THE

RESCISSION OF THE DECISION TO APPOINT DOLORES

LADONNA JEMPSON TO FILL THE VACANCY OF THE CI TY
COUNCIL FOR DISTRICT 1 IN RESPONSE TO THE “BROWN
ACT DEMAND FOR CURE AND CORRECTION” LETTER, DATED
OCTOBER 22, 2021, FROM CALIFORNIANS AWARE, THE
CENTER FOR PUBLIC FORUM RIGHTS;

A.2 REQUEST TO PLACE ON A FUTURE AGENDA THE

CONSIDERATION OF A PROCESS, A PPOINTMENT OR

ELECTION, TO FILL VACANCY OF THE CITY COUNCIL FOR
DISTRICT 1; and

A.3 REQUEST TO PLACE ON A FUTURE AGENDA THE

CONSIDERATION OF APPOINTMENT TO FILL COUNCIL SEAT
FOR DISTRICT 1, INCLUDING SWEARING IN OF THE
SUCCESSFUL CANDIDATE.

The Notice and Call of Special Meeting was dated October 26, 2021, and executed by Council Member Ulises Cabrera and Council Member David Marquez.

OCTOBER 27, 2021 - SPECIAL MEETING AGENDA ITEMS

The Special Meeting Agenda for October 27, 2021, included the followi ng items under the Business Calendar of the October 27 Agenda:

A.1. REQUEST TO PLACE ON A FUTURE AGENDA THE

RESCISSION OF THE DECISION TO APPOINT DOLORES

LADONNA JEMPSON TO FILL THE VACANCY OF THE CITY
COUNCIL FOR DISTRICT 1 IN RESPONSE TO THE “BROWN
ACT DEMAND FOR CURE AND CORRECTION” LETTER, DATED
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OCTOBER 22, 2021, FROM CALIFORNIANS AWARE, THE
CENTER FOR PUBLIC.

Recommendation: That the City Council provide staff direction.

A.2. REQUEST TO PLACE ON A FUTURE AGENDA THE

CONSIDERATION OF A PROCESS, APPO INTMENT OR

ELECTION, TO FILL VACANCY OF THE CITY COUNCIL FOR
DISTRICT 1.

Recommendation: That the City Council provide staff direction.

A.3. REQUEST TO PLACE ON A FUTURE AGENDA THE

CONSIDERATION OF APPOINTMENT TO FILL COUNCIL SEAT
FOR DISTRICT 1, INCLU DING SWEARING IN OF THE
SUCCESSFUL CANDIDATE.

Recommendation: That the City Council provide staff direction.

(ITEMS MAY BE DEFERRED BY COUNCIL IF TIME DOES NOT
PERMIT FULL REVIEW.)

OCTOBER 27, 2021 - SPECIAL MEETING QUORUM ATTENDANCE

Mayor Gutierrez, Council Member Marquez, Council Member Cabrera and Council Member Jempson attended the October 27, 2021 Special Meeting. All four were present during roll call. At the time of the October 27, 2021 Special Meeting, there were only four Council Members, si nce the District 2 City Council seat remained vacant due to the death of former District 2 Council Member Dr. Carla Thornton. The District 2 vacancy was going to be filled by the Special Election which was not scheduled to be held until November 2, 2021.

According to Section 36810 of the California Government Code and Section 3.3.1 of the “Rules of Procedure for Council Meetings and Related Functions and Activities,” since there were (as of October 27, 2021) only four Council Members, three of the four would be sufficient to establish a quorum for purposes of calling the October 27, 2021 City Council Special Meeting to order, since a majority (quorum) of the City Council at that time was just three of four Council Members.

When determining whether a quor um exists for purposes of deciding whether the Moreno Valley City Council may meet and take action as a legislative body, one must consider the Ralph M. Brown Act, the Rules of Procedure for Council Meetings and Related Functions and the Standard Code of Parliamentary Procedure.

Pursuant to Section 36810 of the California Government Code, attached hereto, a majority of the City Council constitutes a quorum for transaction of business. This is G.2
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consistent with Section 3.2 of the Rules of Procedure for Counc il Meetings and Related Functions and Activities, attached hereto, which provides as follows:

3.3. QUORUM AND REQUIRED MAJORITIES

3.3.1. MAJORITY QUORUM AND MAJORITY VOTE.

Unless otherwise provided for in the Municipal Code or by state law, a majority of the City Council shall be a quorum sufficient to do business and motions may be passed 2 -1 if only 3 attend.

After roll call, Council Member Jempson recused herself based on personal interests and left the Council Chamber since the entire subject of the Special Meeting pertained to her appointment, as set forth in the October 27, 2021 Special Meeting

Ms. Jempson’s recusal and her departure from the Council Chamber was consistent with the California Political Refor m Act which requires public officials who have a disqualifying conflict of interest with respect to a particular matter on an agenda to recuse themselves from discussing and voting on the matter and leaving the room until after the decision has been made, unless the matter is on the portion of the agenda reserved for uncontested matters (generally understood to mean the consent calendar). Specifically, Section 87105(a)(2) and (3) of the California Government Code (California Political Reform Act) provides that a public official who has a financial interest in a decision shall: (a) Recuse himself or herself from discussing and voting on the matter, or otherwise acting in violation of Section 87100 and (b) Leave the room until after the discussion, vote, and any other disposition of the matter is concluded, unless the matter has been placed on the portion of the agenda reserved for uncontested matters.

Notwithstanding Ms. Jempson’s recusal, there still remained a quorum present at the October 27, 2021, Special Meeting since three of the four Council Members remained at the meeting, at least through the Public Comment period of the Special Meeting.

OCTOBER 27, 2021 - SPECIAL MEETING LOSS OF QUORUM

After the Public Comment period of the October 27, 2021 Special Meeting, the Mayor announced that he would be leaving the meeting and that he wanted the record to reflect when he left the meeting. Because of the Mayor’s depart ure from the Special G.2
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Meeting, that resulted in losing the “quorum” that was required to continue on with the proceedings.

Pursuant to Section 36810 of the California Government Code, a majority of t he City Council constitutes a quorum for transaction of business. This is consistent with Section 3.2 of the Rules of Procedure for Council Meetings and Related Functions and Activities, attached hereto, which provides as follows:

3.3. QUORUM AND REQUIRED MAJORITIES

3.3.1. MAJORITY QUORUM AND MAJORITY VOTE.

Unless otherwise provided for in the Municipal Code or by state law, a majority of the City Council shall be a quorum sufficient to do business and motions may be passed 2-1 if only 3 attend.

Under Chapter 13 (Quorum) of the Standard Code of Parliamentary Procedure, it provides as follows:

“In computing a quorum, only members in good standing are counted.

The meaning of the phrase ‘in good standing’ varies with different organizations accruing to their bylaws. However, a member in good standing may be disqualified from voting on a particular question because of personal interest or benefit in it. In such a case that member could not be counted for the purpose of counting a quorum for a vote on t hat question. The presiding officer is counted in computing a quorum.

The above rule is wholly consistent with Section 18707(a)(3) of the Fair Political Practices Commission Regulations, attached hereto, which provides as follows:

G.2
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§ 18707. Disqualification Requirements.

(a) (3) Recusal and Leaving the Room. The official must follow the recusal procedure, leave the room after the identification required by this regulation is made, and refrain from any participation in the decision. The official will not be counted toward achieving a quorum while the item is discussed.

In light of the foregoing, once the Mayor left the October 27, 2021 Special Meeting, the meeting had to be adjourned due to the loss of a quorum. Pursuant to Section 54955 of the Californ ia Government Code, any regular or special meeting of a legislative body may be adjourned if less than a quorum attends or is otherwise present at the meeting.

As such, once the Mayor left no action could be taken on any of the items appearing on the Oct ober 27, 2021 Special Meeting Agenda, including curing and correcting the Brown Act violation referenced in the “Brown Act Demand For Cure And Correction” letter, dated October 22, 2021, From Californians Aware, The Center For Public Forum.

NOVEMBER 11, 2021 - PETITION FOR WRIT OF MANDATE AND COMPLAINT

FOR DECLARATORY RELIEF

On November 11, 2021, the City was served with a Petition for Writ of Mandate and Complaint for Declaratory Relief challenging the appointment of LaDonna Jempson to the City Council. (“Lawsuit”) The Lawsuit was filed by on behalf of Moreno Valley resident Robert Palomarez.

The Lawsuit basically alleged that the appointment was unlawful and void for several reasons. A Notice of an Ex Parte Hearing scheduled for Friday, November 12, 2 021.

The Plaintiff’s purpose of requesting an Ex Parte hearing was to try to convince the Court to immediately remove Ms. Jempson from the City Council, pending the outcome of the trial on the merits of the Lawsuit. At Ex Parte hearing, the Court did not render a decision presumably because the Judge did not have sufficient time to thoroughly review the Plaintiff’s moving papers since the previous day was a Court holiday (Veterans Day). As such, the Judge continued the Ex Parte Hearing to the morning of No vember 16, 2021, which the City Attorney’s Office was successful in convincing Plaintiff’s attorney to stipulate to continuing to November 19, 2021, to allow the City Council an opportunity to consider the Cure and Correct matter prior to that time, in the context of a prospective Special Meeting.

NOVEMBER 18, 2021 - RIVERSIDE COUNTY DISTRICT ATTORNEY’S BROWN ACT

CURE AND CORRECT LETTER

On November 18, 2021, a letter addressed to the “Moreno Valley City Council” was received by Assistant District Attorn ey Elaina Bently on behalf of Michael Hestrin, District Attorney for the County of Riverside. The letter stated as follows:

”The Riverside County District Attorney's Office has received multiple requests to investigate a substantial violation of a central provision of the G.2
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Ralph M. Brown Act and Article I, which may jeopardize the finality of the action taken by the Moreno Valley City Council at a meeting that occurred on October 19, 2021.

In its meeting on October 19, 2021, the Moreno Valley City Council took action to appoint LaDonna Jempson to the vacant City Council seat from District 1. The appointment occurred upon a motion made by Councilmember David Marquez and was seconded by City
Councilmember Ulises Cabrera. The vote was unanimous 2 -0, in favor of appointment. The appointment did not appear on the agenda for the meeting.”

The District Attorney’s letter referenced Government Code Section 54954.2(a)(3) which the District Attorney opined specifically bars any action or discussion by a legislative body that does not appear on the posted agenda. Government Code Section 54954.2(a)(3) provides as follows:

“No action or discussion shall be undertaken on any item not appearing on the posted agenda, except that members of a legislative body or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights under Section 54954.3. In addition, on their own initiative or in response to questions posed by the public, a member of a legislative body or its staff may ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities. Furthermore, a member of a legislative body, or the body itself, subject to rules or procedures of the legislative body, may provid e a reference to staff or other resources for factual information, request staff to report back to the body at a subsequent meeting concerning any matter, or take action to direct staff to place a matter of business on a future agenda.”

The District Attor ney’s legal analysis concluded that the City Council's vote to fill the vacant District 1 seat on October 19, 2021, constituted a clear violation of the Brown Act, since a vote was taken despite inadequate public notice of the vote to the public on the posted agenda for the meeting, and there was no finding of fact by the City Council that urgent action was necessary on a matter unforeseen at the time the agenda was posted as an exception to the notice requirement.

The District Attorney pointed out that p ursuant to Government Code Section 54960.l(a), its office could institute an action to procure a judicial determination that the actions of the City Council were null and void based on a violation of Government Code Section 54954.2. Before doing so, howeve r, the District Attorney stated it must make a written demand to the City Council to cure or correct the “illegal action.” As such, pursuant to Government Code Section 54960.l(b), the District Attorney demanded that the City Council cure or correct the “il legal action taken on October 19, 2021, regarding the appointment of Ladonna Jempson to the vacant board seat for District 1 in compliance with the Brown Act and all applicable California laws.”

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Pursuant Government Code Section 54960.l(c)(2), the City Co uncil had 30 days from the receipt of the District Attorney’s’ demand letter to either cure or correct the challenged action or inform the District Attorney’s Office of the City Council’s decision not to do so. The District Attorney, in closing, stated “Sh ould you fail to cure or correct pursuant to this demand letter, our office shall seek judicial invalidation of the illegal action taken by the Moreno Valley City Council on October 19, 2021, pursuant to Section 54960. l(a), and could lawfully seek the awa rd of court costs and reasonable attorney fees under Government Code §54960.5.”

NOVEMBER 18, 2021 – CITY COUNCIL SPECIAL MEETING

Mayor Gutierrez called a Special Meeting for November 18, 2021, for purposes of rescinding the October 19, 2021 appointment o f Ms. Jempson to the City Council. The Special Meeting agenda included the following:

A.2. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

MORENO VALLEY, CALIFORNIA, CURING AND CORRECTING,
PURSUANT TO SECTIONS 54960, 54960.1 AND 54960.2 OF THE

CALIFORNIA GOVERNMENT CODE, THE ALLEGED BROWN ACT
VIOLATIONS DESCRIBED IN THE LETTER, DATED OCTOBER 22,
2021, RECEIVED FROM CALIFORNIANS AWARE.

Recommendation: That the City Council: 1. Approve and Adopt A Resolution Of The City Council Of The City Of Moreno Valle y, California, Curing And Correcting, Pursuant To Sections 54960, 54960.1 And 54960.2 Of The California Government Code, The Alleged Brown Act Violations Described In The Letter, Dated October 22, 2021, Received From Californians Aware.

A.3. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

MORENO VALLEY, CALIFORNIA, CURING AND CORRECTING,
PURSUANT TO SECTIONS 54960, 54960.1 AND 54960.2 OF THE

CALIFORNIA GOVERNMENT CODE, THE ALLEGED BROWN ACT
VIOLATIONS DESCRIBED IN THE LETTER, DATED OCTOBER 22,
2021, RECEIVED FROM ROBERT PALOMAREZ.

Recommendation: That the City Council: 1. Approve and Adopt A Resolution Of The City Council Of The City Of Moreno Valley, California, Curing And Correcting, Pursuant To Sections 54960, 54960.1 And 54960.2 Of The California Gov ernment Code, The Alleged Brown Act Violations Described In The Letter, Dated October 22, 2021, Received From Robert Palomarez.

Both resolutions were adopted, and notice of the City Council’s recission of the October 19, 2021 decision to appoint Ms. Jemps on to the City Council was provided to Mr.

Palomarez and Californians Aware.

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As a result of this action. Mr. Palomarez dismissed the Lawsuit he filed against the City.

DECEMBER 7, 2021 – REGULAR CITY COUNCIL MEETING

Finally, at the December 7, 2021 regu lar City Council meeting, the following was placed on the agenda:

G.3. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

MORENO VALLEY, CALIFORNIA, CURING AND CORRECTING,
PURSUANT TO SECTIONS 54960, 54960.1 AND 54960.2 OF THE

CALIFORNIA GOVERNMENT CODE, THE ALLEGED BROWN ACT

VIOLATIONS DESCRIBED IN THE LETTER, RECEIVED ON
NOVEMBER 18, 2021, FROM THE RIVERSIDE COUNTY DISTRICT
ATTORNEY’S OFFICE (Report of: City Attorney)

Recommendations: That the City Council: Approve and Adopt a Resolution of the City Counc il of the City of Moreno Valley, California, Curing and Correcting, pursuant to Sections 54960, 54960.1 and 54960.2 of the California Government Code, the alleged Brown Act violations described in the letter, dated November 18, 2021, received from Riversid e County District Attorney

The resolution was adopted, and notice of the City Council’s decision rescinding the October 19, 2021 decision to appoint Ms. Jempson to the City Council was provided to the District Attorney’s Office.

APPLICABLE LAWS, RULES AND REGULATIONS

The laws, rules and regulations that are applicable to the issue at hand include, but are not limited to: a) Ralph M. Brown Act; b) Political Reform Act, c) Fair Political Practices Commission Regulations, d) Moreno Valley Municipal Code; e ) California Government Code; f) California Elections Code; g) Rules of Procedure for Council Meetings and Related Functions and Activities; and h) Standard Code of Parliamentary Procedure.

The Ralph M. Brown Act, as set forth in Section 54950 et seq. of the California Government Code, contains provisions that require meetings of "legislative bodies" of local agencies (e.g. city councils) to be open and public. ( California Government Code Section 54953(a)) The California Constitution recognizes, "[t]he p eople have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny." ( California Constitution Artic le I, Section 3(b)(1).) Statutes, court rules, and other authorities must be broadly construed if they further the people's right of access and narrowly construed if they limit the right of access. (California Constitution Article I, Section 3(b)(2)) This constitutional protection of the people's right of access to information was approved by the voters under Proposition 59, effective November 3, 2004. The Ralph M. Brown Act G.2
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addresses issues such as what constitutes a meeting, prohibited meetings, agenda requirements, quorum and voting requirements, public comments, remedies for Brown Act violations, etc.

The Political Reform Act, as set forth in Section 81000 et seq. of the California Government Code contains provisions that address financial conflicts of interests of public officials through disclosure of their economic interests and prohibitions on participation in making decisions that the official knows or has reason to know will result in a material financial effect on one of the official's economic interests.

The Fair Political Practices Commission Regulations (2 Cal Code Regs §18110 et seq.) contain regulations implementing the Political Reform Act. The Fair Political Practices Commission Regulations can be viewed on the FPPC's website (https://www.fppc.ca.gov). The FPPC website also contains the Political Reform Act text, forms, regulations, opinions, and advice letter summaries.

The California Government Code contains certain provisions outsid e the Ralph M.

Brown Act and Political Reform Act that pertain to issues such as, but not limited to, vacancies on the City Council, filling vacancies on the City Council, voting requirements, etc.

The California Elections Code contains certain provision s pertaining to, but not limited to, calling special elections, regular election dates, etc.

The Moreno Valley Municipal Code contains certain provisions pertaining to, but not limited to district elections, number of Council Members, Council Member compensation and reimbursement, and the requirement that the City Council adopt rules of procedure to govern the conduct of its meetings and related functions, activities and regulations.

The Rules of Procedure for Council Meetings and Related Functions and Ac tivities, adopted and amended by the City Council via a series of various resolutions adopted from 2013 through 2017 contain numerous provisions pertaining to, but not limited to, quorum requirements, voting requirements, calling special meetings, placing items on future agendas, etc. Pursuant to Section 2.04.040 (Adoption of Procedures) of the Moreno Valley Municipal Code, attached hereto as Exhibit 4, the City Council was required to adopt by resolution, rules of procedure to govern the conduct of its meetings, any of its other functions and activities, and regulations pertaining thereto.

The Standard Code of Parliamentary Procedure, Third Edition, which according to Section 5.6 of the Rules of Procedure for Council Meetings and Related Functions and Activities, are intended to be used as a guide in the absence of a rule or a written policy adopted by the City Council, to govern a particular point or procedure. This is the form of a book consisting of approximately 285 pages.

PREPARATION OF STAFF REPORT

Prepared By: Department Head Approval:

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Steven B. Quintanilla Steven B. Quintanilla
Interim City Attorney Interim City Attorney

CITY COUNCIL GOALS

1. To observe the highest standards of ethics and discharging faithfully the duties of a Council Member regardless of personal considerations, while recognizing that the public interest must be their primary concern.

CITY COUNCIL GOALS
None

CITY COUNCIL STRATEGIC PRIORITIES

1. Economic Development

2. Public Safety

3. Library

4. Infrastructure

5. Beautification, Community Engagement, and Quality of Life

6. Youth Programs

ATTACHMENTS
To view large attachments, please click your “bookmarks” on the left hand side of this document for the necessary attachment.

None

APPROVALS

Budget Officer Approval ✓ Approved . 10/27/22 6:55 PM City Attorney Approval ✓ Approved .

City Manager Approval ✓ Approved . 10/27/22 6:56 PM G.2
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Moreno Valley City CouncilNovember 1, 2022

Moreno Valley City Council
November 1, 2022