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1419 Camellia Drive
East Palo Alto, CA 94303
650-323-3510

December 29, 2010

Mr. Vincent Ewing
City Attorney
City of East Palo Alto
2415 University Avenue
East Palo Alto, CA 94303

Re: Violation of Election Code, Civil Rights, Brown Act – Government Code Sections 54954.2 and Section 54954.(b) and malpractice
  
Dear Mr. Ewing,

I am in receipt of the December 17, 2010 letter from you to me regarding the above mentioned subject matter.  This is the second time that you have neglected your legal obligations. The first major violation was the illegal handling of the harassment complaint filed against me by a city employee.  Then and in the situation regarding the annual selection process for mayor and vice mayor, you continue to show disrespect for our community.

The employee who accused me of harassment and other false charges was also denied a fair investigation.  The Anti-Harassment Policy clearly states that the City must obtain an independent investigator to investigate all employee harassment complaints. However you appointed yourself as the independent Counsel to investigate this employee complaint. This clearly violates the policy. When the City Attorney annual evaluation was due, the City Council did not include this mismanagement of the employee harassment complaint in your evaluation. However I was found guilty of all the charges and CENSORED AGAIN by the City Council without any objections regarding this matter!

In your December 17, 2010 memo you stated the following the Ralph M. Brown Act:

            “Nothing in the City’s Municipal or Government Code vests you with an electoral or              Civil Right to be vested into the position of Mayor by your fellow council members.”

Accordingly I looked up the meaning of the word: vested in the American Heritage College Dictionary which states in part:

             2. Invest or endow a person or group with something such as power or right, used with              vested the Council with broad powers.

Additionally the State Election Code requires a municipal candidate to be nominated by local registered voters using a special form.  After completion, this form is legally required to be checked and certified by the local City Clerk. It is then legally required for this form to be re-certified by the County Elections Authority to qualify for the ballot.  The voters must elect this person and the County must certify the election of the successful candidate. Finally the elected person must take an oath of office to defend and protect the constitution and the environment of the jurisdiction he/she has been elected to represent.

This means that there are only five (5) people in the world that can be mayor of the City of East Palo Alto at this time and I am one of them. To state that this person is not ‘vested’ to be mayor is absurd. After being elected Council Member twice by the citizens of East Palo Alto and serving six (6) years, I am the only one who has not served as Mayor. From your reasoning it appears that all of the other elected Council Members are the only ones that are ‘vested’. One, Rueben Abrica, has been the Mayor several times since 1982 at various times when he was not the vice mayor.

It is apparent that you have no historical knowledge of Resolution 738 and Resolution 2738.  I was present when both were adopted by the City Council. Contrary to your statements, I did strongly and publicly protest the rescinding of Resolution 738 before and after the City Council replaced it with Resolution 2738.  Independent of that fact, why should I or anyone else protest law when they are being applied fairly and justly? It is not expected for a motorist to stop at a green light to wait for the red light to be a good motorist.

Mr. Ewing it appears that you also have no elementary legal knowledge of the Brown Act. There appears to be additional violations of the Brown Act. In your memo you state “No provision of the Brown Act requires any resolution to be included in the Agenda packet. Further you cited Government Code 54954.2 in your memo.  Apparently we must have read different Brown Acts.  When I read Government Code 54954.2 several years ago and then again recently, I found it had not changed. The Ralph M. Brown Act states:

Section 54954.2 Agenda Requirements:
Regular Meetings

          a. At least 72 hours before a regular meeting, the legislative body of the local Agency, or
             its designee, shall post an Agenda containing a brief general description of each item of              business to be transacted or discussed at the meeting INCLUDING item to be discussed              in closed session.  A brief general description of an item generally need not exceed 20              words.

Additionally the Brown Act states the following:
            “The people do not yield their sovereignty to the bodies that govern them.
             The people insist on remaining informed to retain control over legislative bodies they
             have created”

Mr. Ewing, additionally your letter states the following:

            “Furthermore the Resolution was provided to you and all Council Members via email on              December 3, 2010. A copy of it was placed in your mailbox on the second floor of City              Hall on that day and you were provided with a copy of it prior to the City Council              meetings on December 7, 2010.”

However you did not mention how or when the Public would or could get access to these Public documents in this manner of distribution.  It is unfortunate that you as our City Attorney appear to be unconcerned or unaware that City Council meetings are FOR THE PUBLIC, not only for Council members.

Finally Mr. Ewing, you and the Agenda Committee violated the Brown Act in your written reply to me when you drafted and sent your memo. Specifically the violation is found in Section 54954.(b) of the Brown Act.

            Section 54954.(b) states in part:
            “….”Legislative body” means: Standing committees of a legislative body, irrespective of             their composition, which have a continuing subject matter jurisdiction, or a meeting             schedule fixed by charter, ordinance, resolution or formal action of a legislative body, are             legislative bodies.”
Pursuant to this section of the Brown Act, the Agenda Committee comprised of the Mayor and Vice Mayor is a legislative body standing committee pursuant to Section 54954.(b) of the Brown Act. Accordingly its Agenda must be posted and the meetings must be open to the Public.  Historically, and as well as in the present, the Agenda Committee Agendas have not been posted and for all intents and purposes are not open to the Public.

During the time I served as Vice Mayor I protested holding the Agenda Meeting in the City Manager’s Office without posting notice of the meeting or its Agenda. It is my understanding that  you were assigned to reply to my letter protesting the recent pre-selection of Mayor and Vice Mayor during the Agenda Committee meeting.  If this Agenda Committee meeting was not posted and made available to Public participation pursuant to Section 54954.(b), it was an illegal meeting . Accordingly nothing can become correct pursuant to the Brown Act, if these requirements did not  occur. This is a demand to cure or correct the following violation of the Brown Act.

A – Violation – Improper posting of Agenda – Less than 72 hours –  
          Section 54954.2 Agenda requirements: Regular Meetings
          a.  At least 72 hours before a regular meeting, the legislative body of the local agency, or                its designee, shall post an agenda, containing a brief general description of each item                of business to be transacted or discussed at the meeting.

B. – Violation – Agenda Committee meeting not posted and not available for the public to attend
         Section 54954.(b)…Standing Committees of a legislative body, irrespective of their          composition, which have a continuing subject matter jurisdiction, or a meeting schedule          fixed by charter, ordinance, resolution or formal action of a legislative body, are legislative          bodies.”

In the alternative to this demand, please provide me with a copy of the posted agenda for the Agenda Committee that was posted pursuant to Section 54954.2 of the Brown Act.

Thanks for a timely reply.

                                                                            Sincerely,

                                                                            
                                                                            A. Peter Evans – Council Member
                                                                            City of East Palo Alto

 

Cc:       City Council Members
            Mr. ML Gordon - City Manager
            Mr. Steve Wagstaff – District Attorney – San Mateo County


                                           ###

To see Vincent Ewing's original letter to which Councilmember Evans is referring, click here. To see what prompted Ewing's letter, go here.


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