Government Of The People, By The People and For The People - Not!

“I believe the government’s job is to conduct the people’s business on behalf of the people, accountable to the people and in full view of the people.“
John Russo, Preface to “Your Guide to Open Government,” 2003

Talk is cheap.

Ideally, people who hold political office have a desire to serve their community, represent their constituents, and make their community a better place. Unfortunately, those who seek and/or hold public office frequently have different priorities, like feeding their egos, handing out favors to their allies, crushing their adversaries (or giving them a job to silence them), padding their resumes for when they seek higher office, hiding their mistakes and hiding the mistakes of their friends and allies. I got to see up close how some of these motivations played out in my litigation with the City. Below I will share with you my experiences, observations and opinions on how our fair city dealt with one unhappy citizen, and how far short the City really is from being a government “for the people.” Neighbors, your City government lies, cheats and steals, and you need to know about it.

The Ends Do Not Justify The Means

In his “State of the City” address in early 2008, Mayor Dellums announced that he was going to get the police force up to its authorized strength “whatever it takes.” Of course, the City should have achieved its authorized strength years ago, and failure to do so constituted a violation of Measure Y. Dellums’ solution? Violate Measure Y again, by robbing it of $7.7 million for generalized recruitment and training of officers who would not be placed into Measure Y positions. While I won’t argue with Dellums’ commitment to reaching the authorized strength (better late than never) , this whole idea of “whatever it takes” included breaking the law. The ends do not justify the means.

The City Doesn‘t Fight Fair!

1. Refusal to Provide Discovery Responses

The litigation process is adversarial by nature, and I’m used to playing the game. But when I decided to sue the City, I wanted to approach the process differently. First of all, the City was supposed to be representing my interests too, and I was hoping we shared similar goals of making Oakland a better place to live. In addition, litigation can be very expensive, and because I was funding this battle myself, I obviously had an incentive to keep the costs down. None of the critical facts in my lawsuit could be disputed. Those included (1) after Measure Y passed, the size of the police force plummeted, rather than increased; (2) that as of March, 2008, a large number of the PSO positions had not been filled; (3) City officials repeatedly promised citizens, prior to the passage of Measure Y, that they would be getting 63 police officers, and that the tax would not be collected unless the size of the force was maintained at with at least the same number of officers that were authorized at the time the measure passed; and (4) not all of the officers to be hired under the 2008 Augmented Recruitment Program would be Measure Y officers.

Because these facts couldn’t be disputed, I asked the City to stipulate to the facts. Without explanation, the City refused. That meant I had to engage in what is referred to as “discovery,” which includes written questions the other side has to answer, requests for admissions that the other side has to either admit or deny, and requests for documents that the other side has to produce. When I sent the City my discovery requests, they produced nothing. Nada. Bupkess.

Litigation has rules. Lots and lots and lots of rules. One of the rules is that when one side propounds discovery, the other side has to respond, within 30 days. No legitimate excuse was offered for not giving me responses. My guess is the City knew I was doing this on my own, in my spare time, and they were just playing dirty, trying to wear me down and see if I would give up. The fact that the City would stoop so low only strengthened my commitment to my cause. I filed a motion to compel the City to give me discovery responses, and I won. Your tax dollars paid for the City’s Attorney’s office to fight me on my right to public information. Open government? I think not.

2. Intimidating the Media

Following a pivotal ruling in the case, where the judge held that lies told by politicians could not be relied on as admissible evidence in interpreting ambiguous statutory language, I wrote a letter to the editor of both the Tribune and the Montclarion, advocating defeat of Measure NN, which would have taxed residents nearly $400 for police services they were likely to never see, given the history with Measure Y. The City Attorney submitted a rebuttal the following week, accusing the newspaper of publishing misleading information. Wow. (In the end, the Montclarion endorsed voting no on NN).

3. Denying the Undeniable

Want to know the City’s actual position on Measure Y - the position the politicians don’t want you to know about? Check this out.
Below are “Requests for Admissions” I propounded, and the City’s responses:
Admit that Measure Y requires the City to hire an additional 63 officers
City’s response: Denied.
Admit that from January to December 2006, the number of sworn police officers did not exceed 739:
City’s response: Objection - irrelevant.
Admit that as of the date Petitioner’s writ petition was filed, the City had not hired an additional 63 officers, as those officers were referred to in Measure Y.
City’s response - Denied.
[Comment: The City went on to clarify that only 49 positions as of that date had been filled. Huh?]
Admit that as of December 31, 2006, only 17 police beats were staffed with dedicated Measure Y problem solving officers.
City response - Denied.
[Comment - the City’s own documents show only 17 beats filled as of that date]

I could go on and on. Do you see what I was up against?

Dirty Laundry

Below are a few tidbits of information that the City would rather you not know about

1. The Police Chief Misled The City Council and the Public

When the $7.7 Million Augmented Recruitment Program was presented to the City Council for a vote, several council members noted concern that not all of the officers hired under the program would be placed into Measure Y positions. Police Chief Tucker told them that all of the officers hired under the program would be Measure Y officers. Watch the DVD and see it for yourself. He knew this was not true. He knew none of the officers would be placed into Measure Y positions. And none of them were. Under longstanding policy, they were all destined for patrol. How on earth could he get away with saying this? Fortunately, he’s out the door.

2. Justifying the 40% Formula

In order to justify its application of the 40% Formula, City officials repeatedly issued misleading statements (in writing!) that 40% of the actual graduates from the graduating academies would be placed into Measure Y positions. In fact, the goal was to deploy 40% of the NUMBER of graduates, not the actual graduates. The City never came close to meeting this goal, and actively made decisions that were contrary to satisfying the goal.

3. The Embarrassing E-Mails

In a February 23, 2006 e-mail from Peter Fitzsimmons (fiscal manager for OPD), he wrote: “I am thoroughly confused as to what is going on in NSD with regards to Measure Y deployment. [….] This process has to be tighted [sic]; otherwise,OPD is going to get slammed with the audit.!” (Emphasis in original e-mail).
(Note - the City never performed ANY of the audits required by Measure Y, without explanation).

In a March 7, 2006 e-mail from Peter Fitzsimmons to now Deputy Chief David Kozicki, he wrote: “I have attached to Agency’s Fiscal strategy regarding Measure Y. Of course, this strategy was put into a tailspin with 100% deployment of the 154th into non-Measure Y activities. I am meeting with Lt. Downing and Sgt. Madarang to identify charges for the 154th to reverse the charges and have put a moratorium on charging anything to Measure Y for the 155th , 156th and 157th unless I can get a commitment to the 40%.”

(At deposition, Fitzsimmons admitted the charges for the 154th academy were not reversed, even though no Measure Y officers were deployed, and claimed he didn’t recall much about the “moratorium.”)

In a March 14, 2006 e-mail from Peter Fitzsimmons to Anne Campbell Washington , he wrote: “The audit of OPD’s use of Measure Y funds and the tracking is continually getting more and more burdensome with all these changes. First, it was the 154th Academy not providing the 40% and now it is the redeployment of PSOs. I know this is not you doing; but thank you for allowing me to vent. I am just frustrated and know that when the audit comes around, I am going to have to bear the brunt of it!”
In an April, 14, 2006 e-mail from Peter Fitzsimmons to Anne Campbell Washington (who was previously in charge of administrating Measure Y) he wrote: “How can OPD justify a million dollar expenditure with 0 officers to date???? Please advise. Am I to present this and the average cost to recruit, hire, and train a police officer to the Committee later this month (or can I just bury my head in the sand - wink)”

In a June 6, 2006 e-mail, Peter Fitzsimmons wrote to now Deputy Chief David Kozicki: “Please note that currently the department stands at a 29% percent deployment into Measure Y. We have got to get this number up to 40%.”

Epilogue: Last I heard, Peter Fitzsimmons had been placed on administrative leave. Other witnesses providing evidence to support the City’s various arguments and defenses were recently notified of their terminations, including Marcia Meyers and Ace Tago. Chief Tucker has announced his resignation.

4. Fuzzy Math And The Disaster That Is Measure Y Accounting Practices

Aside from the legal and factual issues involved in the application of the “40 Percent Formula,” the Measure Y accounting practices would seem to be a total mess. There is a $500,000 annual limit on equipment and training written into the text of Measure Y. Equipment purchases therefore should have been given a specific code to ensure that those expenses did not exceed the $500,000 limit. But my review of the accounts indicated that equipment purchases were not correctly coded, and therefore, there was no way the City could ensure compliance with the $500,000 limit.

When the City began removing Measure Y officers from their community policing details in 2006 and 2007, and assigned them to patrol one shift per week, there was massive confusion about how this would impact the coding of officer salaries.

In an e-mail by Peter Fitzsimmons, he admits that disgraced city manager Deborah Edgerly specifically told the police department NOT to charge the general fund (but presumably Measure Y instead) “due to budgetary constraint.” Mr. Fitzsimmons initially believed that Measure Y was being improperly charged during that time period; at his deposition, however, he claimed that Measure Y was never charged for the one shift per week, and no reversing of charges was needed. Subsequent responses by the City, however, indicated that sometimes Measure Y was charged, and sometimes it wasn’t. While the City claims that any charges to Measure Y for the one shift per week on patrol were subsequently reversed, I don’t believe it. How would they know? The answers given were inconsistent and self-contradicting, and the accounting is a mess.

When the number of officers employed finally reached 802, the City pounded its chest and made sure to let the media know. However, when the force exceeded that number by more than 30 officers, the City started worrying about how to pay for all those extra officers. What’s a city with a $40 million budget crisis, and already in litigation over Measure Y, to do? Steal even more money from Measure Y! An August 21, 2008 e-mail from City officials to Peter Fitzsimmons indicates that he was directed to begin charging 70% of such additional expenses to Measure Y! During deposition, Mr. Fitzsimmons stated that the charges never took place, and that “I still have my doubts about the feasibility of that and we haven’t gotten there yet.“ Yet? Hopefully they ran that absurd proposal by the City Attorney’s office and it was immediately nixed. But maybe not.

Okay, that’s enough venting for one day.