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 General Municipal Election, held on November 1, 2022, is officially installed on the City Council.
OR
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.
The Staff Report for the above item, as prepared by the City Clerk, recommended that the City Council consider the same actions that appeared in the agenda as Item G.2 on the General Business Calendar. On October 19, 2021, there were only three members on the City Council which consisted of Mayor Gutierrez, and Council Members Cabrera and Marquez.
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,” (“Rules of Procedure”) since there were 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 Regular Meeting to order. Incidentally, under Chapter 13 (Quorum) of the Standard Code of Parliamentary Procedure, it provides that “[i]n computing a quorum, only members in good standing are counted.”
In light of the “quorum” rules, as set forth in the California Government Code, the Rules of Procedure, and the Standard Code of Parliamentary Procedure, it was clear that as of October 19, 2021, since there were only three council members on the City Council, two of the three constituted the necessary quorum for calling the October 19, 2021 City Council Regular Meeting to order . However, while the Rules of Procedure 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, the R ules of Procedure require three affirmative votes for “orders or appropriations for payment or expenditure of money” and the appointment of the mayor pro tem. As such, before the October 19, 2021 City Council Regular Meeting was called to order, it was re commended by the Interim City Attorney, City Manager, Assistant City Manager/Chief Financial Officer/City Treasurer, and City Clerk, that certain items requiring three affirmative votes be removed from the October 19, 2021 City Council Regular Meeting agen da which included those items involving the expenditure of money and the appointment of the mayor pro tem.
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General Business Item G.2, however, remained on the October 19, 2021 City Council Regular Meeting agenda since it was determined by the City Clerk th at there would be no “Fiscal Impact” related to the City Clerk simply seeking direction on whether to proceed with preparing the necessary documents for either appointing or calling a special election to fill the District 1 City Council vacancy. Despite th e foregoing, according to the minutes of the October 19, 2021 meeting, Council Member Marquez moved to appoint Ms. Jempson, which was seconded by Council Member Cabrera, after which former City Clerk Jacquez -Nares administered the oath to Ms. Jempson and Ms. Jempson took her seat on the dais.
It is important to note that the situation described above was different from the action recommended and taken at the September 14, 2013 City Council meeting at which the following appeared on the 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 vacan t 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 former Council Member Tom Owings opened agenda item G.1 for public comments, after which fo rmer Council Member Victoria Baca made 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,” which was seconded by former Council Memb er Jesse Molina, and which was “Approved by a vote of 3 -1, Council Member Richard A.
Stewart opposed.” This action was consistent with the recommendation to “take possible action to fill the vacancy by appointment or by calling for an election.”
CURE AND CORRECT DEMANDS
On October 22, 2021, the Assistant General Counsel of Californians Aware sent a letter (via email) to Mayor Gutierrez, and Council Members Cabrera and Marquez which was labeled as follows: 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 Californians Aware letter alleged that the action taken on October 19, 2021 to appoint Ms. Jempson to the District 1 seat on Moreno Valley City Council vio lated the Brown Act since the action taken was not listed on the agenda as one of recommended actions.
Also on October 22, 2021, the Law Offices of Stone Busailah, LLP on behalf of Moreno Valley resident Robert Palomarez, submitted a Cease and Desist le tter to the City Council alleging that the City Council violated the Brown Act when it appointed G.1
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Ms. Jempson on October 19, 2021 since the action taken was not listed on the agenda as one of the recommended actions.
Thereafter, on November 11, 2021, the City was served with a Petition for Writ of Mandate and Complaint for Declaratory Relief (“Lawsuit”) on behalf of Moreno Valley resident Robert Palomarez challenging the appointment of Ms. Jempson to the City Council in part because the action taken to app oint Ms. Jempson was not listed on the agenda as one of the recommended actions, which the Lawsuit alleges was a violation of the Brown Act.
Finally, on November 18, 2021, a letter addressed to the “Moreno Valley City Council” was received from Assistant District Attorney Elaina Bently on behalf of Michael Hestrin, District Attorney for the County of Riverside (“D.A.’s Letter”). The D.A.’s Letter stated as follows:
”The Riverside County District Attorney's Office has received multiple requests to investi gate a substantial violation of a central provision of the 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 Cabre ra. The vote was unanimous 2 -0, in favor of appointment. The appointment did not appear on the agenda for the meeting.”; and
The D.A.’s letter further stated that pursuant to Government Code Section 54954.2(a)(3), a legislative body is specifically barred from taking any action or engaging in any discussion regarding any matter that does not appear on the posted agenda. Specifically, Government Code Section 54954.2(a)(3) provides in part 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.”
The District Attorney’s lega l 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.
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In summary, Californians Aware, Robert Palomarez an d the Riverside County District Attorney have each opined that the action taken by Council Members Cabrera and Marquez to appoint Ms. Jempson to fill the District 1 council seat was in violation of the Brown Act which prohibits taking any action on a matte r that is not on the posted agenda, unless a bona fide exemption exists. The October 19, 2021 action was also a violation of the City’s Rules of Procedure which require any item involving the expenditure of money be approved by three affirmative votes.
LEGAL ANALYSIS
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.3d 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.
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 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 proces s 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 min imal due process standards may apply, a council member who may be faced with the possibility of a censure should be G.1
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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, sufficient notice of this Censure Resolution was provided to Council Members Cabrera and Marquez in light of the vote that was taken at the November 1, 2022 City Council Regular Meeting, at which Council Member Baca -Santa Cruz made a motion to add the censure of Council Members Cabrera and Marquez 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 Cabrera and Marquez voting no. Notice of this Censure Resolution was also listed on the agenda for the December 6, 2022 City Council Regular Meeting agenda which was posted and distributed at least 72 hours before the December 6, 2022 meeting.
3. City Policies
The City has two policies that may be relevant to the matter at hand: 1) the Rules of Procedure and the 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.
• Section 3.3.2. (Matters Requiring Three Votes) of the Rules of Procedure require three affirmative votes for: (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.
• 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 expects each coun cil 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; and
• 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 performance and maintain public trust in the City of Moreno Valley.
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 n ote that a censure is an expression by the city council of their opinion of inappropriate conduct, but it is not a G.1
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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].)
The intent and purpose (scope) of this Censure Resolution is to express the City Council’s opinion that Council Members Cabrera and Marquez engaged in inappropriate conduct when they voted to appoint Ms. Jempson to the vacant District 1 Council seat inconsistent with the provisions of the Rules of Procedure and the Brown Act, which is viewed by some as sufficient for the City Council finding and determining that such conduct is wholly inconsistent and in conflict wi th, and thus a violation, of the following City policies:
Section 3.3.2. Matters Requiring Three Votes of the Rules of Procedure for Council Meetings and Related Functions and Activities which require three affirmative votes for orders or appropriations for payment or expenditure of money.
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 and expects each council member to compl y 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; and
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 performance and maintain public trust in the City of Moreno Valley.
In light of the foregoing, it has been recommended that Council Members Cabrera and Marquez receive, in addition to the AB 1234 Biennial Two -Hours Ethics Training required of council memb ers in California, at least one hour of training related to the application of the Brown Act and at least one hour of training regarding general parliamentary procedures, from any source sponsored, authorized, approved or supported by the League of Califor nia Cities and/or the Institute for Local Government.
It is also recommended that the City Attorney’s Office be directed to submit a copy of the Censure Resolution and related documents to the Riverside County Grand Jury with a request that the Grand Jury review the matter and provide any recommendations it deems relevant and/or necessary.
PREPARATION OF STAFF REPORT
Prepared By: Department Head Approval:
Steve Quintanilla Steve Quintanilla
Interim City Attorney Interim City Attorney
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CITY COUNCIL GOALS
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 han d side of this document for the necessary attachment.
1. 2021 BROWN ACT VIOLATION PRESENTATION [FINAL]
2. Nov 1 Summary Report
3. Censure Resolution - Cabrera & Marquez (12.07.2022)
APPROVALS
Budget Officer Approval ✓ Approved . 12/14/22 6:27 PM City Attorney Approval ✓ Approved . 12/14/22 5:06 PM City Manager Approval ✓ Approved . 12/15/22 8:48 AM G.1
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2021
Ralph M. Brown Act Violation Proceedings
&
Demands to Cure and Correct Ralph M. Brown Act Violation October 6, 2021
Passing of the late Mayor Pro Tem
District 1 Council Member Victoria Baca
October 19, 2021
Appointment of LaDonna Jempson to fill the District 1 Council Member Vacancy .
G.1.a
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION)
APPLICABLE LAWS, RULES AND REGULATIONS
Ralph M. Brown Act
Political Reform Act
Fair Political Practices Commission Regulations
Moreno Valley Municipal Code
California Government Code
California Elections Code
Rules of Procedure for Council Meetings and Related Functions and Activities Standard Code of Parliamentary Procedure
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) Ralph M. Brown Act
City Council Meetings Must Be Open and Public
With Some Exceptions
Topics
What constitutes a meeting
Prohibited meetings
Agenda Requirements
Quorum
Voting Requirements
Public Comments
Remedies for Brown Act Violations
G.1.a
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) Political Reform Act
TOPICS
Financial Conflicts of Interests
Disclosure of Economic Interests
Prohibitions on Participating in Making Decisions
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Packet Pg. 640
Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) Fair Political Practices Commission Regulations
PURPOSE
To Implement the Political Reform Act
Forms
Regulations
Recusals
Opinions
Advice Letter Summaries
G.1.a
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) California Government Code
Ralph M. Brown Act
Political Reform Act
Vacancies on the City Council
Filling Vacancies on the City Council
City Council Voting Requirements
Etc.
G.1.a
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) California Elections Code
All Election Issues
Calling Special Elections
Regular Election Dates
Candidacy Issues
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) Moreno Valley Municipal Code
District Elections
Number of Council Members
Council Member Compensation and Reimbursement
Requires City Council to Adopt Rules of Procedure
Conduct of Meetings, Related Functions, Activities And Regulations G.1.a
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) Rules of Procedure for Council Meetings
and
Related Functions and Activities
TOPICS
Quorum Requirements
Voting Requirements
Calling Special Meetings
Placing Items on Future Agendas
Etc.
G.1.a
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) Standard Code of Parliamentary Procedure
Intended Purpose
Guide
Absence of a Rule or a Written Policy Adopted by the City Council To
Govern a Particular Point or Procedure
Approximately 285 Pages
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION)
BACKGROUND
VACANCY CREATED ON CITY COUNCIL
OCTOBER 6, 2021
Passing of Mayor Pro Tem/City Council Member Victoria Baca California Government Code Section 1770(a)
Office Becomes Vacant Upon The Death Of A Sitting Council Member G.1.a
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION)
STATE LAW
REGARDING FILLING VACANCIES
California Government Code Section 36512(b)
Within 60 days of the Occurrence of a Vacancy on the City Council City Council Must Fill the Vacancy
Either By Appointment Or By Calling A Special Election.
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) Deadline
City Council had Until
December 5, 2021
To Appoint or Call a Special Election
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) OCTOBER 19, 2021
COUNCIL MEETING
JUST 3 MEMBERS ON COUNCIL
1. Mayor Gutierrez
2. District No. 3
Council Member Marquez
3. District No. 4
Council Member Cabrera
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) QUORUM
California Government Code
Section 36810
A majority of the City Council constitutes a quorum for transaction of business.
G.1.a
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) QUORUM
Rules of Procedure for Council Meetings
Section 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.
G.1.a
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) OCTOBER 19 REGULAR COUNCIL MEETING
CALLING MEETING TO ORDER
ONLY TWO ATTENDED
REMEMBER
2 0UT OF 3 = QUORUM
COUNCIL MEMBER MARQUEZ
COUNCIL MEMBER CABRERA
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION)
VOTING REQUIREMENTS
ONLY TWO COUNCIL MEMBERS AT MEETING
2 – 0
VOTE
OK
ITEMS THAT DO NOT SPECIFICALLY REQUIRE 3 AFFIRMATIVE VOTES G.1.a
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) Rules of Procedure for Council Meetings
Section 3.3.1
MAJORITY QUORUM AND MAJORITY VOTE
Motions May Be Passed 2-1 If Only 3 Attend
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION)
RULES OF PROCEDURE FOR COUNCIL MEETINGS
Section 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.” G.1.a
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) 3 AFFIRMATIVE VOTES REQUIRED
1 Ordinances
2. Franchises
3 General Plan Amendments
4 Orders Or Appropriations
For Payment Or Expenditure Of Money
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) 3 AFFIRMATIVE VOTES REQUIRED
APPOINTMENT OF MAYOR PRO TEM
Rules of Procedure for Council Meetings
Section 4.1.3.
Selection Process
Nominations for the office Mayor Pro Tem may be made by any member of the City Council and need not be seconded in order to be effective.
Appointment shall be by three or more affirmative votes. •
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) OCTOBER 19 AGENDA
ITEMS REMOVED
REQUIRED THREE AFFIRMATIVE VOTES
A-5 PAYMENT REGISTER- AUGUST 2021
A-7 AWARD A CONSTRUCTION CONTRACT TO ALL AMERICAN ASPHALT A-8 ACCEPTANCE OF LOCAL ROADWAY SAFETY PLAN GRANT FUNDING A-9 AWARD AN AGREEMENT TO FEHR & PEERS FOR THE LOCAL ROADWAY SAFETY A-11 ACCEPT AND RECEIVE A GRANT AWARD FROM THE CALIFORNIA STATE LIBRARY B-4 AWARD A CONSTRUCTION CONTRACT TO MUSCO SPORTS LIGHTING, &
G-3 SELECTION OF MAYOR PRO TEM
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) October 19, 2021
City Council Meeting Agenda
GENERAL BUSINESS CALENDAR
G.2.
CITY COUNCIL DIRECTION REGARDING FILLING CITY COUNCIL DISTRICT 1 VACANCY (Report of City Clerk)
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION)
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 General Municipal Election, held on November 1, 2022, is officially installed on the City Council.
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) OR
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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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION)
ACTION TAKEN
AT
OCTOBER 19 MEETING
ONLY TWO COUNCIL MEMBERS PRESENT
Motion to Appoint Dolores LaDonna Jempson
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION)
BROWN ACT
APPOINTMENT OF A COUNCIL MEMBER WAS NOT ON THE AGENDA
Government Code Section 54954.2(a)(3)
“No action or discussion shall be undertaken on any item not appearing on the posted agenda ”
URGENCY ITEMS EXCEPTION
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION)
RULES OF PROCEDURES
Section 3.3.2.
MATTERS REQUIRING THREE VOTES.
Orders Or Appropriations
For Payment Or Expenditure Of Money
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) For Payment Or Expenditure Of Money???
Council Member Compensation & Benefits
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) Motion to Appoint Dolores LaDonna Jempson
MOTION
Council Member Marquez
SECOND
Council Member Cabrera
ABSENT:
Mayor Gutierrez
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) 2013
Mayor’s Seat Became Vacant
FORMER MAYOR TOM OWING
CORRUPTION PROBE
Federal Bureau of Investigation
Internal Revenue Service
Riverside County District Attorney’s Office
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) SEPTEMBER 14, 2013
CITY COUNCIL MEETING
APPOINTMENT OF GUTIÉRREZ TO THE COUNCIL
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.
G.1.a
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) SEPTEMBER 14, 2013
CITY COUNCIL MEETING
4 COUNCIL MEMBERS PRESENT
“Motion to appoint Dr. Yxstian Gutierrez to the City Council” Motion
Council Member Victoria Baca
Second
Council Member Jesse Molina
“Approved by a vote of 3-1, Council Member Richard A. Stewart opposed.” Council Member Tom Owings Voted Yes
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) SEPTEMBER 14, 2013
CITY COUNCIL MEETING
APPOINTMENT OF GUTIERREZ TO THE COUNCIL
PERMISSIBLE ACTION
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.
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) OCTOBER 22, 2021
Law Offices Of Stone Busailah
REPRESENTING
ROBERT PALOMAREZ
CEASE AND DESIST LETTER
ALLEGATION
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. •
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION)
ROBERT PALOMAREZ
CEASE AND DESIST LETTER
Government Code Section 54954.2(a)(3)
The Brown Act proscribes an act taken or discussion about any item not appearing on the posted agenda.
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) OCTOBER 22, 2021
CALIFORNIANS AWARE
PUBLIC FORUM RIGHTS
BROWN ACT CURE AND CORRECT LETTER
Allegation
Brown Act Violation
Must Refrain From Taking Action On Items
Not Listed On The Posted Agenda.
Government Code Section 54954.2
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) NOVEMBER 18, 2021
RIVERSIDE COUNTY DISTRICT ATTORNEY
BROWN ACT CURE AND CORRECT LETTER
“The appointment did not appear on the agenda for the meeting.” Government Code Section 54954.2(a)(3)
“Bars any action or discussion by a legislative body that does not appear on the posted agenda.” G.1.a
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) Three
Demand Letters to Cure and Correct
Brown Act Violation
CALIFORNIANS AWARE
ROBERT PALOMAREZ
RIVERSIDE COUNTY DISTRICT ATTORNEY
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION)
ALL CITE
GOVERNMENT CODE SECTION 54954.2
(3) 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.
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION)
CURE AND CORRECT
Government Code
Section 54960.1
30 Days to Cure and Correct
If Cure and Correct Does Not Occur Within 30 Day Period 15 Days To File A Brown Act Violation Lawsuit Against The City G.1.a
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) OCTOBER 27, 2021
SPECIAL CITY COUNCIL MEETING
ATTEMPT TO CURE AND CORRECT
BUSINESS CALENDAR
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 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, APPOINTMENT 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.
•
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) OCTOBER 27, 2021
SPECIAL CITY COUNCIL MEETING
ATTEMPT TO CURE AND CORRECT
PRESENT AT SPECIAL MEETING
GUTIERREZ
MARQUEZ
CABRERA
JEMPSON
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) OCTOBER 27, 2021
SPECIAL CITY COUNCIL MEETING
ATTEMPT TO CURE AND CORRECT
QUORUM = 3 COUNCIL MEMBERS
TO CALL MEETING TO ORDER
MAJORITY = 3 COUNCIL MEMBERS
TO TAKE ACTION
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) OCTOBER 27, 2021
SPECIAL CITY COUNCIL MEETING
ATTEMPT TO CURE AND CORRECT
JEMPSON RECUSES DUE TO CONFLICT OF INTEREST
LEAVES THREE COUNCIL MEMBERS
MAYOR EXITS MEETING
LEAVES TWO COUNCIL MEMBERS
LOST QUORUM
MEETING ADJOURNED DUE TO LACK OF QUORUM
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION)
CURE AND CORRECT
DEADLINES
NOVEMBER 21, 2021
CALIFORNIANS AWARE
ROBERT PALOMAREZ
&
DECEMBER 18, 2021
RIVERSIDE COUNTY DISTRICT ATTORNEY
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION)
LAWSUIT FILED AGAINST CITY
Robert Palomarez
Challenged Appointment Because It Did Appear On October 19 Agenda November 12, 2021 – Emergency Hearing
Plaintiff try to convince the Court to immediately remove Ms. Jempson from the City Council pending the outcome of the trial.
Court did not have sufficient time to thoroughly review the Plaintiff’s moving papers since the previous day was a Court holiday (Veterans Day).
Judge continued the Ex Parte Hearing to the morning of November 16, 2021 City and Plaintiff agreed to continue November 19, 2021 Day After November 18 Special Meeting
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) NOVEMBER 18, 2021
CITY COUNCIL SPECIAL MEETING
CURE AND CORRECT RESOLUTIONS
CALIFORNIANS AWARE
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 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.
INVALIDATED JEMPSON APPOINTMENT
APPROVED BY COUNCIL
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) NOVEMBER 18, 2021
CITY COUNCIL SPECIAL MEETING
CURE AND CORRECT RESOLUTIONS
ROBERT PALOMAREZ
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 Government Code, The Alleged Brown Act Violations Described In The Letter, Dated October 22, 2021, Received From Robert Palomarez.
INVALIDATED JEMPSON APPOINTMENT
APPROVED BY COUNCIL
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) DECEMBER 7, 2021
REGULAR CITY COUNCIL MEETING
CURE AND CORRECT
RIVERSIDE COUNTY DISTRICT ATTORNEY’S OFFICE
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’SOFFICE (Report of: City Attorney) Recommendations: That the City Council: 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 Government Code, the alleged Brown Act violations described in the letter, dated November 18, 2021, received from Riverside County District Attorney
INVALIDATED JEMPSON APPOINTMENT
APPROVED BY COUNCIL
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Attachment: 2021 BROWN ACT VIOLATION PRESENTATION [FINAL] (6034 : CENSURE RESOLUTION) DECEMBER 7, 2021
REGULAR CITY COUNCIL MEETING
CALL OF SPECIAL ELECTION
G.2. ADOPTION OF RESOLUTIONS CALLING AND GIVING NOTICE OF A SPECIAL MUNICIPAL ELECTION FOR APRIL 12, 2022 TO FILL THE DISTRICT 1 CITY COUNCIL VACANCY, REQUESTING CONSOLIDATION AND ESTABLISHING REGULATIONS AND COSTS FOR CANDIDATE STATEMENTS (Report of: City Clerk) Recommendations: That the City Council: 1. Adopt Resolution No. 2021-XX, a Resolution of the City Council of the City of Moreno Valley, California, calling and giving notice of a Special Municipal Election to be held in the City of Moreno Valley on Tuesday, April 12, 2022, to fill the District 1 City Council vacancy, and requesting that the Board of Supervisors of the County of Riverside consolidate the Special Municipal Election with any other election to be held on that same date. -14- 2. Adopt Resolution No. 2021-XX, a Resolution of the City Council of the City of Moreno Valley, California, establishing regulations pertaining to materials for candidates and costs pertaining to candidate statements submitted to the voters.
APPROVED BY COUNCIL
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Attachment: Nov 1 Summary Report (6034 : CENSURE RESOLUTION) RESOLUTION NO. 2022-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MORENO VALLEY, CALIFORNIA, CENSURING COUNCIL
MEMBERS CABRERA AND MARQUEZ FOR VIOLATING
CERTAIN CITY POLICIES RELATED TO THE
APPOINTMENT OF DOLORES LADONNA JEMPSON ON
OCTOBER 19, 2021, INCONSISTENT WITH CERTAIN
PROVISIONS OF THE BROWN ACT AND THE CITY’S
RULES OF PROCEDURE
WHEREAS, this censure is related to the October 19, 2021 appointment of Dolores Ladonna Jempson (“Ms. 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 Bacca; and
WHEREAS, on the October 19, 2021 City Council Regular Meeting agenda, the following item appeared on the “General Business” calendar:
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 General Municipal Election, held on November 1, 2022, is officially installed on the City Council.
OR
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.
WHEREAS, the Staff Report for the above item, as prepared by the City Clerk , recommended that the City Council consider the same actions that appeared in the agenda as Item G.2 on the General Business Calendar; and
WHEREAS, at the time of the October 19, 2021 City Council Regular Meeting, there were only three members on the City Council which consisted of Mayor Dr. Yxstian Gutierrez, District No. 3 Council Member David Marquez, and District No. 4 Council Member Ulises Cabrera; and
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Attachment: Censure Resolution - Cabrera & Marquez (12.07.2022) (6034 : CENSURE RESOLUTION)
WHEREAS, 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,” (“Rules of Procedure”) 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 Regular Meeting to order; and
WHEREAS, under Chapter 13 (Quorum) of the Standard Code of Parliamentary Procedure, it provides that “[i]n computing a quorum, only members in good standing are counted”; and
WHEREAS, i n light of the “quorum” rules, as articulated in the California Government Code, the Rules of Procedure , and the Standard Code of Parliamentary Procedure, it was clear that as of October 19, 2021, since there were only three council members on the City Cou ncil, two of the three constituted the necessary quorum for calling the October 19, 2021 City Council Regular Meeting to order; and
WHEREAS, however, while the Rules of Procedure 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; and
WHEREAS, the Rules of Procedure require three affirmative votes for “orders or appropriations for payment or expenditu re of money” and the appointment of the mayor pro tem; and
WHEREAS, in light of the foregoing, before the October 19, 2021 City Council Regular Meeting was called to order, it was recommended by the Interim City Attorney, City Manager, Assistant City Manager/Chief Financial Officer/City Treasurer, and City Clerk, that certain items requiring three affirmative votes be removed from the October 19, 2021 City Council Regular Meeting agenda which included those items involving the expenditure of money and the appointment of the mayor pro tem; and
WHEREAS, General Business Item G.2 remained on the October 19, 2021 City Council Regular Meeting a genda since it was determined by the City Clerk that there would be no “Fiscal Impact” related to the City Clerk simply seeking direction on whether to proceed with preparing the necessary documents for either appointing or calling a special election to fill the District 1 City Council vacancy; and
WHEREAS, despite the foregoing, a ccording to the minutes of the October 19, 2021 meeting, Council Member Marquez moved to appoint Ms. Jempson, which was seconded by Council Member Cabrera , after which former City Clerk Jacquez-Nares administered the oath to Ms. Jempson and Ms. Jempson took her seat on the dais; and
WHEREAS, this situation was different from the action recommended and taken at the September 14, 2013 City Council meeting at which the following appeared on the agenda:
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Attachment: Censure Resolution - Cabrera & Marquez (12.07.2022) (6034 : CENSURE RESOLUTION)
G.1 CONSIDER THE PROCEDU RAL 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; and
WHEREAS, the September 24, 2013 minutes reflect that former Council Member Tom Owings opened agenda item G.1 for public comments, after which former Council Member Victoria Bacca made a “Motion to approve Dr. Yxstian Gutierrez to the City Council of the City of More no Valley to fill the unexpired term of resigned Council Member Co to end December 9, 2014,” 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 ,” which was consiste nt with the recommendation to “take possible action to fill the vacancy by appointment or by calling for an election” and
WHEREAS, on October 22, 2021, the Assistant General Counsel of Californians Aware sent a letter (via email) to Mayor Gutierrez, and Council Members Cabrera and Marquez which was labeled as follows: 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.); and
WHEREAS, the Californians Aware letter alleged that the action taken on October 19, 2021 to appoint Ms. Jempson to the District 1 seat on Moreno Valley City Council violated the Brown Act since the action taken was not listed on the agenda as one of recommended actions; and
WHEREAS, on October 22, 2021, the Law Offices of Stone Busailah, LLP on behalf of Moreno Valley resident Robert Palomarez, submitted a Cease and Desist letter to the City Council alleging that the City Council violated the Brown Act when it appointed Ms. Jempson on October 19, 2021 since the action taken was not listed on the agenda as one of the recommended actions; and
WHEREAS, on November 11, 2021, the City was served with a Petition for Writ of Mandate and Complaint for Declaratory Relief (“Lawsuit”) on behalf of Moreno Valley resident Robert Palomarez challenging the appointment of Ms. Jempson to the City Council in part because the action taken to appoint Ms. Jempson was not listed on the agenda as one of the recommended actions, which the Lawsuit alleges was a violation of the Brown Act; and
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Attachment: Censure Resolution - Cabrera & Marquez (12.07.2022) (6034 : CENSURE RESOLUTION)
WHEREAS, on November 18, 2021, a letter addressed to the “Moreno Valley City Council” was received from Assistant District Attorney Elaina Bently on behalf of Michael Hestrin, District Attorney for the County of Riverside (“D.A.’s Letter”); and
WHEREAS, the D.A.’s 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 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.”; and
WHEREAS, the D.A.’s Letter further stated that pursuant to Government Code Section 54954.2(a)(3), a legislative body is specifically barred from taking any action or engaging in any discussion regarding any atter tha t does not appear on the posted agenda; and
WHEREAS, Government Code Section 54954.2(a)(3) provides in part 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.” and
WHEREAS, the District Attorney’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; and
WHEREAS, in summary, Californians Aware, Robert Palomarez and the Riverside County District Attorney have each opined that the action taken by Counci l Members Cabrera and Marquez to appoint Ms. Jempson to fill the Distric t 1 council seat was in violation of the Brown At which prohibits taking any action on a matter that is not on the posted agenda, unless a bona fide exemption exists; and G.1.c
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Attachment: Censure Resolution - Cabrera & Marquez (12.07.2022) (6034 : CENSURE RESOLUTION) WHEREAS, the October 19, 2021 action was also a violation of the City’s Rules of Procedure which require any item involving the expenditure of money requires approval by three affirmative votes; and
WHEREAS, at the November 1 , 2022 City Council Regular M eeting, Council Member Elena Baca-Santa Cruz made a motion to add a proposed resolution of censure of Council Member s Cabrera and Marquez t o a future agenda, for their participation in the appointment of Ms. Jempson to the City Council on October 19 2022 in violation of the Brown Act, 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 De lgado and Council Member Elena Baca-Santa Cruz voting yes, and Council Members Cabrera and Marquez 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., 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 Califor nia 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 First Amendment 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, 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
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Attachment: Censure Resolution - Cabrera & Marquez (12.07.2022) (6034 : CENSURE RESOLUTION) WHEREAS, there was sufficient notice provided in light of the vote that was taken at the November 1, 2022 City Council Regular Meeting, at which Council Member Baca- Santa Cruz made a motion to add a resolution of censure of Council Member s Cabrera and Marquez 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 listed on the agenda for the December 20, 2022, City Council Regular Meeting agenda which was distributed and posted at least 72 hours prior to the December 20, 2022 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’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 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, if 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.
NOW, THEREFORE, the City Council of the City of Moreno Valley does hereby resolve as follows:
Section 1. RECITALS
That the Recitals set forth above are true and correct, and are hereby incorporated herein by this reference, and adopted as findings in support of this Censure Resolution.
Section 2. ATTACHMENT AND STAFF REPORT
That the Staff Report prepared for this Censure Resolution and all documents referenced therein and in this Resolution are hereby incorporated by this reference and adopted as findings in support of this Censure Resolution.
Section 3. INTENT AND PURPOSE
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Attachment: Censure Resolution - Cabrera & Marquez (12.07.2022) (6034 : CENSURE RESOLUTION)
That the intent and purpose of this Censure Resolution is to express the City Council’s opinion that Council Member s Ulises Cabrera and David Marquez engaged in inappropriate conduct when they voted to appoint Dolores Ladonna Je mpson to the vacant District 1 Council seat inconsistent with the provisions of the Rules of Procedure for Council Meetings and Related Functions and Activities and the Ralph M. Brown Act.
Section 4. NOTICE
That sufficient notice of this Censure Resolution was provided to Council Members Ulises Cabrera and David Marquez in light of the vote that was taken at the November 1, 2022 City Council Regular Meeting, at which Council Member Baca-Santa Cruz made a motion to add the censure of Council Members Ulises Cabrera and Marquez 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 D elgado and Council Member Baca -Santa Cruz voting yes, and Council Members Cabrera and Marquez voting no, and notice of this Censure Resolution was also listed on the agenda for the December 20, 2022, City Council Regular Meeting agenda which was posted and distributed at least 72 hours before the December 20, 2022 meeting.
Section 5. OPPORTUNITY TO REFUTE
That Council Member s Cabrera and Marquez have 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 the action taken by Council Member Cabrera and Marquez to appoint Dolores Ladonna Jempson to the vacant District 1 Council seat in a manner that was wholly inconsistent with certain provisions of the Rules of Procedure for Council Meetings and Related Functions and Activities and the Ralph M.
Brown Act, constitutes a violation of the following City policies:
• Section 3.3.2. Matters Requiring Three Votes of the Rules of Procedure for Council Meetings and Related Functions and Activities which require three affirmative votes for orders or appropriations for payment or expenditure of money.
• 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 counc il 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; and
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Attachment: Censure Resolution - Cabrera & Marquez (12.07.2022) (6034 : CENSURE RESOLUTION) • 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 performance and maintain public trust in the City of Moreno Valley.
Section 7. CENSURE
That the City Council hereby censures Council Members Ulises Cabrera and David Marquez based on the City Council’s opinion that Council Members Ulises Cabrera and David Marquez ’s appointment of Dolores Ladonna Jempson to the vacant District 1 Council seat on October 19, 2021 was done in a manner that was wholly inconsistent with certain provisions of the Rules of Procedure for Council Meetings and Related Functions and Activities and the Ralph M. Brown Act, which constitutes a violation of the City policies described in Section 6 of this Resolution.
Section 8. Brown Act and Parliamentary Procedures Training
That the City Council hereby directs Council Members Ulises Cabrera and David Marquez to receive , in addition to the AB 1234 Biennial Two -Hours Ethics Training required of council members in California, at least one hour of training related to the application of the Ralph M. Brown Act and at least one hour of training regarding general parliamentary procedures, from any source sponsored, authorized, approved or supported by the League of California Cities and/or the Institute for Local Government.
Section 9. Grand Jury Review
That the City Council hereby directs the City Attorney’s Office to submit a copy of this Resolution and related documents to the Riverside County Grand Jury with a request that the Grand Jury review the matter and provide any recommendations it deems relevant and/or necessary.
Section 10. Severability
That the City Council declares that, should any provision, section, paragraph, sentence or word of this 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 Resolution as hereby adopted shall remain in full force and effect.
Section 11. Effective Date
That this Resolution shall take effect immediately upon the date of adoption.
Section 12. Certification.
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Attachment: Censure Resolution - Cabrera & Marquez (12.07.2022) (6034 : CENSURE RESOLUTION) That the City Clerk shall certify to the passage of this Resolution.
PASSED AND ADOPTED THIS ____ day of December 2022.
___________________________________
Dr. Yustman A. Gutierrez, Mayor
ATTEST:
__________________________________
Jane Halstead, City Clerk
APPROVED AS TO FORM:
__________________________________
Steven B. Quintanilla, Interim City Attorney
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Attachment: Censure Resolution - Cabrera & Marquez (12.07.2022) (6034 : CENSURE RESOLUTION)
Report to City Council
ID#6049 Page 1
TO: Mayor and City Council
FROM: Jane Halstead, CMC, City Clerk
AGENDA DATE: December 20, 2022
TITLE: CITY COUNCIL REORGANIZATION - SELECTION OF
MAYOR PRO TEM
RECOMMENDED ACTION
Recommendation:
1. Conduct the reorganization of the City Council by sel ecting one Council Member to serve a one-year term as Mayor Pro Tem.
SUMMARY
The City Council shall meet annually in December to choose one of its members as Mayor Pro Tem. The new Mayor Pro Tem shall be installed, sworn, and shall assume the office at the Council meeting.
DISCUSSION
Section 4.1.3 of the Rules of Procedure provides that nominations for the office Mayor Pro Tem may be made by any member of the City Council and need not be seconded in order to be effective. Appointment shall be made by three or more affirmative votes on a motion to appoint. In the event that no person receives three or more votes in the selection process, the selection process shall be repeated immediately; provided, however, that the two persons receiving the highest nu mber of votes in the preceding selection process shall be the only nominees. If, upon repeating the selection process of Mayor Pro Tem, no person has yet received three affirmative votes for such office, the City Council may either repeat the selection pro cess until the officer has been duly selected or may continue the selection to the next regular meeting of the City Council.
The new Mayor Pro Tem, shall serve until the next meeting scheduled for selection of the Mayor Pro Tem in December 2023.
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ALTERNATIVES
1. Conduct the reorganization of the City Council by selecting a Mayor Pro Tem.
2. Continue the selection to the next regular meeting of the City Council if upon repeating the selection process, no person receives three affirmative votes for Mayor Pro Tem.
FISCAL IMPACT
There is no fiscal impact associated with the recommended action.
NOTIFICATION
Publication of the agenda.
PREPARATION OF STAFF REPORT
Prepared By:
Jane Halstead
Manager of the Office of Mayor and City Council/City Clerk
CITY COUNCIL GOALS
Positive Environment. Create a positive environment for the development of Moreno Valley's future.
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 . 12/15/22 6:44 AM City Attorney Approval ✓ Approved .
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City Manager Approval ✓ Approved . 12/15/22 8:42 AM G.2
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