Measure Y Performance Audit - Part Deux

Earlier this month City Auditor Courtney Ruby released her audit on the violence prevention aspects of Measure Y. While my lawsuit was focused on the deficiencies with respect to increased police staffing (which continue to exist), Ms. Ruby’s report led me to further examine problems with the violence prevention programs. In reviewing her report, and in conducting some additional factual and legal research, I believe that not only are there problems and deficiencies with the violence prevention programs, but there are serious illegalities as well, as outlined below:

1. Failure to Comply With Municipal Ordinance Requiring Competitive Bidding

Oakland’s Municipal Code requires that specific procedures be followed in awarding contracts over a specific amount. While the City Auditor’s report noted that the City failed to utilize the RFP process for approximately $1.1 million of grants awarded under Measure Y during the year reviewed, the report did not specifically address the City’s apparent failure to comply with the Municipal Code regarding competitive bidding.

Section 2.04.015 states that all contracts for services are governed by the ordinance. There would appear to be no exception for grants under Measure Y. Indeed, Section 2.04.020 and 2.04.040 specifically place additional restrictions on expenditure of funds for contracts “that are or will be funded, directly or indirectly, by funds generated by a voter-approved measure…” (See 2.04.020(d).)

Section 2.04.040 specifies the required contracting procedures for contracts between $500 and $50,000, and those over $50,000. Notably, the vast majority of contracts awarded to Measure Y grantees are in excess of $50,000. Subsection (B) requires that for any contract in excess of $50,000, formal advertising and bidding are required. For contracts under $50,000, informal advertising and bidding are required. Section 2.04.051 requires that for professional services in excess of $25,000, an RFP process is required. Subsection B provides: “Upon a finding by the City Council or its designee that it is in the best interests of the city, the City Council may waive the requirement of an RFP or RFQ process.”

There is nothing in the City Auditor’s report indicating that the City Council ever made a finding that it was in the best interests of the city to waive the RFP process. Therefore, it appears that approximately $1,126,711 was awarded in the time period reviewed by the City Auditor, in violation of the City’s own municipal code.

The purpose of requiring governmental entities to open the contracts process to public bidding is to eliminate favoritism, fraud and corruption; avoid misuse of public funds, and stimulate advantageous market place competition. Numerous courts have held that contracts awarded without strict compliance with bidding requirements will be set aside. This preventative approach is applied even where it is certain that there was in fact no corruption or adverse effect upon the bidding process. Nor does the law draw a distinction between cases where there was a defect in the bidding process, as opposed to an absence of competitive bidding. It is settled law that no payments of any kind can be made where the agency was without the authority to make the contract.

Based on the law cited above, any contract that was awarded without complying with the City’s own ordinance is arguably void.

2. Award of Contracts Not Authorized By Measure Y, Part I, Section 3(2)

The language in Measure Y dealing with violence prevention reads as follows: “Violence Prevention Services With An Emphasis on Youth and Children: Expand preventive social services provided by the City of Oakland, or by adding capacity to community -based nonprofit programs with demonstrated past success for the following objectives:

a. Youth outreach counselors: hire and train personnel who will reach out, counsel and mentor at-risk adolescents and young adults by providing services and presenting employment opportunities;

b. After and in school program for youth and children: expand existing City programs and City supported programs that provide recreational, academic tutoring and mentoring opportunities for at-risk adolescents and children during after school hours; expand truancy enforcement programs to keep kids in school.

c. Domestic violence and child abuse counselors: make available counselors who will team with police and the criminal justice system to assist victims of domestic violence or child prostitution and to find services that help to avoid repeat abuse situations; expand early childhood intervention programs for children exposed to violence in the home at an early age.

d. Offender/parolee employment training: provide parolee pre-release employment skills training and provide employers with wage incentives to hire and train young offenders or parolees….

The language cited above is quite specific. Therefore, while programs may indeed be geared toward violence prevention, only those programs that satisfy the objectives cited above may legally be funded by Measure Y. A brief review of several of the contracts that have been approved indicates that they do not fit within the four categories specified above.

1. Safe House for Sexually Exploited Minors

On May 2, 2006 the City Council approved $225,000 in Measure Y funds for the construction of a “Safe House for Sexually Exploited Minors.” Apparently as of May, 2009, no location had been found, but the County had located a property and requested an additional one year to claim the funds. Notably, Measure Y does not authorize any funding for purchasing or renovating a building for such a purpose.

2. Volunteers of America, Bay Area

According to a memo dated May 26, 2009 from DHS, this agency was requesting $222,000 of Measure Y funds for “providing intensive case management services for 50 young adults both pre-release (San Quentin State Prison) and post release. Services include life planning, cognitive re-structuring and support groups, mental/substance abuse assessments, and refers to other wrap around services (housing, employment, education etc.)” Notably, the only services that may be offered to offender/parolees under Measure Y relate to employment. “Cognitive restructuring” and substance abuse counseling are in no way authorized under the clear language of Measure Y.

3. The Mentoring Center

According to the May 26, 2009 memo to the Council, the Mentoring Center was requesting $111,000 for identical services as VOA. For the same reasons, the grant should never have been authorized by Measure Y.

4. “Incident/Crisis Response”

It appears that for several years Measure Y funds have been used under the generic heading of “Incident/Crisis Response.” While such programs may serve the goal of violence prevention, they are not necessarily targeted at youth or children, nor do they fall within the four very specific categories specified above. Therefore, violence prevention programs funded by Measure Y for these purposes was not authorized, as detailed below.

A. Mayor’s Street Outreach

On November 13, 2007, Public Safety Director Lenore Anderson issued a memo describing street-based outreach as “a strategy that calls on community members who are familiar with the neighborhoods most impacted by violence and skilled at conflict mediation, intervention, and mentorship to walk the streets seeking to connect with youth and adults involved in the street life. Street outreach workers get to know the youth and adults, give them opportunities to get off the street, and work to resolve conflicts before violence erupts.” The memo sought $375,000 from Measure Y funds to support the program.

Additional funds were appropriated from Measure Y in 2008, and for the 09/10 fiscal year, the City sought a total of $643,800, to be distributed to California Youth Outreach, Healthy Oakland, and Youth Uprising. A description of the services to be provided by these organizations (as outlined in the May 26, 2009 memo from DHS) makes it clear that none of the services provided were targeted at the four categories of violence prevention programs authorized by Measure Y.

b. Crisis Response Support Network

According to the May 26, 2009 DHS memo, CRSN “is designed to be a community-based, neighbor-to-neighbor support system for friends and family members who are affected by a young person’s (age 30 and below) homicide. It provides general comfort as well as support for basic needs, assistance with funeral arrangements, professional mental health services and referrals to outside organizations. CRSN also works with friends and families to contain retaliation and provide opportunities for hearing.” While these may be valuable services, they are not authorized by Measure Y, and it is difficult to even argue that they are even violence prevention programs.

The services were to be provided by Catholic Charities of the East Bay, and the amount of the grant was $310,800, for 09/10. It is my understanding that similar grants were made in previous years for identical services, as outlined in the City Auditor’s report (e.g. $300,000 in 07/08).

5. City/County Neighborhood Initiative (CCNI)

According to the May 26, 2009 DHS memo, the City Administrator’s Office “will be funded to expand neighborhood organizing in the three Public Safety Districts, working closely with the Mayor’s Public Safety Coordinator on organizing efforts. Through CCNI, community builders work closely with teams of service agencies including the Service Delivery System (SDS) Teams, Neighborhood Services Coordinators, Y Teams, County agencies, schools, and local non-profit agencies…..” While community organizing may be nice, funding such a program clearly does not fall within any of the recognized objectives of Measure Y. Nevertheless, the City approved $133,200 for this goal for 09/10. According to the City Auditor’s report, $196,485 was approved in 07/08.

6. Public Safety Districts

According to the May 26, 2009 DHS memo, “The Mayor’s Office will be provided funding to support violence prevention efforts in the three Public Safety Districts. Efforts will focus on communication, coordination of existing services, gap analyses, and creating tool kits for neighborhoods, through activates such as involving faith-based agencies in violence prevention messaging and convening a youth summit.” The City Council approved $30,000 for this purpose in 09/10, despite the fact that such programs do not fit within any of the four goals outlined in Measure Y.

7. Violence Prevention Network Coordinator

According to the May 26, 2009 DHS memo, “DHS houses this position, which provides on-going training, support and coordination for agencies funded under the street outreach strategy. In addition, this position plays a vital role in ensuring all Measure Y program services develop a relationship with Oakland Police Department thereby ensuring the enforcement and intervention investments under Measure Y are working together to create a safe Oakland. A position with a selective certification in Street Outreach Criminal Justice will be established….” The City Council approved $133,2000 of Measure Y funds for this purpose, despite the fact that it in no way meets any of the four designated criteria for funding.

This is just a sampling of the abuses in Measure Y funding for violence prevention. While all of these programs may support the goal of violence prevention, that is simply not enough. Measure Y only authorized expenditures for the four limited categories specified in the Measure. Even the limited sampling noted above comes to a total of over $2 million that was taken from Measure Y, despite the fact that it did not fit within any of the four categories. A more thorough audit of Measure Y expenditures would likely reveal that many more millions of dollars were allocated to generic violence prevention programs, in violation of Measure Y.

The above illustrates the hazards of special taxes. In order to get the approval of voters, voters must be persuaded that their money will be used for projects that would otherwise not get funded, and that there will be accountability. But in the end, it appears that the City decided it could use the money for whatever it wanted, despite the limitations imposed under the Measure.