On February 25, 2009, Council Member Jean Quan presented a report advocating for yet another parcel tax to go on the June 2 ballot. You can check it out here: http://clerkwebsvr1.oaklandnet.com/attachments/21185.pdf
This one would be for $46.00 per parcel ($34.50 per unit in a multi-unit building) and would supposedly be used for “landscaping and lighting” projects. In giving initial consideration to the merits of yet another tax, let us take a moment to reflect on all of the lies City officials told us to convince us to vote for Measure Y, shall we?
The Lie
City Councilmember Jean Quan publicly proclaimed, in writing, that the Measure “guarantees 63 additional officers above [the] current budget of 739. Specifically, one per beat in every neighborhood, plus additional school/truancy officers, police for domestic violence, child abuse, and crime/drug hot spots.”
The Truth
As we all now know, nearly five years later, the City still hasn’t made good on that promise. While the beats each have a designated problem solving officer, the PSOs spend half their times outside their beats because there aren't enough police cars. In addition, the City has (hopefully only temporarily) disbanded all of its crime reduction teams, in violation of the specific provisions of Measure Y.
The Lie
On the City’s own website, “FAQs” regarding Measure Y, the City promised that Measure Y would “add 63 sworn police officers…bringing the total strength of the department to 802 sworn officers.” In answering the question: “How do we know the money will be spent on these programs?” the City responded that Measure Y had “safeguards” to ensure that “the City will maintain a baseline of 739 police officers in addition to the 63 new officers….”
The Truth
The City did not reach its authorized strength until only a few months ago. And despite the fact that the City was dramatically under 739 officers for most of the time period since January, 2005, the City collected the tax anyway, claiming that all that was required was “appropriation” for 739 officers, and defended against two lawsuits trying to hold City officials accountable for their lies. Unfortunately, there is case law out there saying that the lies government officials and politicians tell voters cannot be considered as “admissible evidence” against them.
The Lie
On October 20, 2004, Councilmember Danny Wan distributed an e-mail to a Police Service Area 4 Yahoo group promising that Measure Y: “Guarantees a minimum of 802 officers citywide each year.”
The Truth
We never got to 802 officers until a few months ago.
The Lie
Council President Ignacio De La Fuente’s aide issued a flyer promising that if Measure Y passed, “Oakland WILL hire 63 more police officers for a total of 802.…The idea that Oakland would collect $9.5 million dollars per year for additional police officers, money it can only use for hiring additional officers, and then not spend it, is not only a lie, it is simply ridiculous. Don’t buy the lies!”
The Truth
The City didn’t hire the 63 officers, did not get to 802 until a few months ago, collected the money, and didn’t hire the officers.
The New Lies
In the most recent proposal for yet more taxes, Quan threatens us with “unkempt parks and buildings,” “taller grass,” “graffiti,” and “darker streets” unless we cough up more dough. She notes that “The City is currently preparing its 2009-2011 Budget and the outlook is not good.” No kidding, Jean! Maybe if the City would bother to follow the law, and not incur $15 million liabilities for violating parcel tax law with respect to Measure Y, we wouldn’t need yet another stupid tax!
The final insult in her proposal is a misleading statement about the last effort to increase the LLAD tax, where she claims: “In 2008 the increase of $12 million was approved but not imposed because of a recent California Supreme Court decision concerning assessment districts.” Come on, Jean, be honest. You’re neglecting to mention the fact that the last election, which the City claimed to have won, was rigged! Check out the details at http://www.orpn.org/LLAD_B06.htm
So voters, before opening up your wallets once more, remember what you’re really paying for - the mistakes of lying, cheating, stealing and incompetent politicians.
Saturday, February 28, 2009
Monday, February 23, 2009
Hear No Evil
It's nearly 10:30 p.m. and I'm home from the Measure Y Oversight Committee meeting. I was invited to give a presentation by Chairperson Maya Dillard Smith, as the litigation was finally on the agenda. Better late than never. But in the end, the majority voted to send me packing. Neighbors, an independent oversight committee this is not. The majority is clearly not interested in actually learning about Measure Y and the problems with its administration. They are, in effect, a meaningless joke. You can watch it all for yourselves when it is broadcast on KTOP this Thursday.
After introducing myself and referring them to this blog for background information, I highlighted some of the points in my lawsuit (including the fact that the Oversight Committee itself failed in its duties to ensure that the audit was conducted every year) and indicated that I was there to answer any questions they might have. One of the newly appointed members, Joanne Brown, asked about the components of the tentative ruling and when a final ruling might be expected. After summarizing the main issues and stating that by law the judge has 90 days to issue a ruling, Ms. Brown stated, in essence, that my presentation was premature, and that there was really no need to hear what I had to say because, after all, the ruling wasn't final yet. In addition, she indicated that she didn't want to hear just my side of the story, but wanted to hear from the City Attorney as well.
First of all, Supervising Assistant City Attorney Mark Morodomi was sitting right there. He has been supervising the case from day one, and certainly was qualified to counter anything I might have had to say. Moreover, even if the City Attorney's office was unavailable or not prepared to present at that moment, they could have heard what I had to say, and heard from the City Attorney at a later date. They then could have discussed the issues to their hearts delight.
When it became apparent that some of the members did not want to hear what I had to say, I told them that I had been invited to speak to them, took time out of my evening (and I even missed "House!" - okay, I didn't actually tell them I missed my favorite TV show) to give them information, and that regardless of how the lawsuit turned out, I had spent hours and hours of my own time researching Measure Y and how it had been abused, and I had a wealth of information to share with them. I told them that if they were truly an independent oversight committee, then they should want to hear what I had to say, and that the fact that the final decision has not been issued is not even that relevant. My research brought up very legitimate concerns that they should have been aware of, regardless of whether they constituted legal violations. I also told them that if they decided they did not want to hear from me, I would be very, very offended.
The majority of the committee voted to show me the door. They did not want to hear what I had to say. The fact that an "oversight committee" would not want to become better informed about facts and issues until a final decision on legal liability has been issued makes it abundantly clear that most of the members are intentionally ignorant, impotent and useless. Do they also choose to not to follow the news of things that "might" happen (like Y2K, Hurricane Katrina before it hit, the impacts of global warming, the federal stimulus package etc) and only bother with the news of things that already have happened? Moreover, the City has already announced its intention to appeal the decision if it doesn't go their way, meaning that no final decision could be reached for another year or two. Would they then choose not to be briefed until the matter is decided by the Court of Appeal? Or even the California Supreme Court? Who in their right mind would intentionally choose not to be informed in a situation like this?
Those voting to send me away were clearly afraid that I would make even more public the abuses of those that appointed them to the committee. Or they were trying to shield themselves from criticism (because they never conducted the audit) and the others responsible for this fiasco, and there's plenty of blame to go around. They are puppets. They do not represent your interests. You should be appalled.
After introducing myself and referring them to this blog for background information, I highlighted some of the points in my lawsuit (including the fact that the Oversight Committee itself failed in its duties to ensure that the audit was conducted every year) and indicated that I was there to answer any questions they might have. One of the newly appointed members, Joanne Brown, asked about the components of the tentative ruling and when a final ruling might be expected. After summarizing the main issues and stating that by law the judge has 90 days to issue a ruling, Ms. Brown stated, in essence, that my presentation was premature, and that there was really no need to hear what I had to say because, after all, the ruling wasn't final yet. In addition, she indicated that she didn't want to hear just my side of the story, but wanted to hear from the City Attorney as well.
First of all, Supervising Assistant City Attorney Mark Morodomi was sitting right there. He has been supervising the case from day one, and certainly was qualified to counter anything I might have had to say. Moreover, even if the City Attorney's office was unavailable or not prepared to present at that moment, they could have heard what I had to say, and heard from the City Attorney at a later date. They then could have discussed the issues to their hearts delight.
When it became apparent that some of the members did not want to hear what I had to say, I told them that I had been invited to speak to them, took time out of my evening (and I even missed "House!" - okay, I didn't actually tell them I missed my favorite TV show) to give them information, and that regardless of how the lawsuit turned out, I had spent hours and hours of my own time researching Measure Y and how it had been abused, and I had a wealth of information to share with them. I told them that if they were truly an independent oversight committee, then they should want to hear what I had to say, and that the fact that the final decision has not been issued is not even that relevant. My research brought up very legitimate concerns that they should have been aware of, regardless of whether they constituted legal violations. I also told them that if they decided they did not want to hear from me, I would be very, very offended.
The majority of the committee voted to show me the door. They did not want to hear what I had to say. The fact that an "oversight committee" would not want to become better informed about facts and issues until a final decision on legal liability has been issued makes it abundantly clear that most of the members are intentionally ignorant, impotent and useless. Do they also choose to not to follow the news of things that "might" happen (like Y2K, Hurricane Katrina before it hit, the impacts of global warming, the federal stimulus package etc) and only bother with the news of things that already have happened? Moreover, the City has already announced its intention to appeal the decision if it doesn't go their way, meaning that no final decision could be reached for another year or two. Would they then choose not to be briefed until the matter is decided by the Court of Appeal? Or even the California Supreme Court? Who in their right mind would intentionally choose not to be informed in a situation like this?
Those voting to send me away were clearly afraid that I would make even more public the abuses of those that appointed them to the committee. Or they were trying to shield themselves from criticism (because they never conducted the audit) and the others responsible for this fiasco, and there's plenty of blame to go around. They are puppets. They do not represent your interests. You should be appalled.
Sunday, February 22, 2009
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.
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.
Wednesday, February 18, 2009
Bad Press
One of the reasons I created this blog in the first place was so that interested people (including the media) could come here and find the salient points related to my lawsuit in one place, in a succinct, easy-to-read and comprehensible format. I guess I was a bit too late to prevent the most recent piece in the East Bay Express. http://www.eastbayexpress.com/news/oakland_s_measure_y_is_a_bad_law/Content?oid=927502
Nevertheless, Mr. Gammon could have just picked up the phone and called me, or at least sent me an e-mail, before printing his piece, full of misinformation, which I will now take the time to correct here.
Me, a political gadfly? Hardly. I've only been to one City Council meeting in my life. I've had no involvement in Oakland politics, ever, with the exception of this lawsuit. If every concerned citizen who stands up for their rights, and the rights of their neighbors, is a "gadfly," then I guess that's me.
Gammon claims I am pushing for a "strict interpretation of Measure Y." No, I'm pushing for the City to follow the law, i.e. what the voters intended. The voters intended that we get 63 additional police officers, increase the size of the force, with the purpose of decreasing crime. That's not what we got. What we got was a slush fund that the City felt it could dip into for whatever it felt like, like paying for the academy training expenses of Deborah Edgerly's daughter, who flunked four times. See http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2007/02/02/BAG1GNTL8P1.DTL
In fact, it was the City that pressed for a hyper-technical, overly strict reading of Measure Y when it claimed the law didn't require it to actually employ 739 officers as a precondition to collecting the tax, and that all that was required was "appropriation" of funds to hire the officers.
Without any research whatsoever, Gammon arrogantly claims, "After all, Measure Y clearly allows the department to hire and train rookies for problem-solving positions." Gammon, however, is not a lawyer and is not trained in the rules of statutory construction. In addition, because Gammon didn't attend the court hearing, or read the initial pleadings that I filed, he was unaware of the argument that Measure Y was never intended to pay for recruiting and academy expenses of any police officers, Measure Y or otherwise. That's because the measure specifically provides for $500,000 annually for "equipment and training," but does not actually allocate any money for recruitment or academy expenses. In his statements in court, Judge Roesch appeared to agree with my interpretation of Measure Y on these issues, not the City's.
Measure Y was meant to fund police officer salaries and benefits. The general fund was supposed to pay for recruitment and academy training. While this fact may have meant that Measure Y was underfunded, or poorly drafted, that does not make the City's actions legal.
Next, Gammon goes on to explain why he thinks the City's decision to take the money from Measure Y, as opposed to the general fund, made sense: because the general fund had no money. I am tired of hearing this same old sorry excuse. The real reason the general fund has no money is because the City's priorities are all screwed up. Providing police services to the residents is one of the most, if not the most basic city service there is. How about cutting out the lunches at Bay Wolf (http://www.berkeleydailyplanet.com/issue/2008-07-10/article/30510?headline=Civil-Grand-Jury-Appalled-By-Oakland-s-Credit-Card-Policies)?
How about taking away Ron Dellums' private chauffeur (http://www.sfgate.com/cgi-bin/blogs/sfgate/detail?blogid=14&entry_id=27338) and other bloated, unnecessary expenses? How about trying to prevent the multi-million dollar debacles like the Riders case, or the more recent Valerga case (http://www.insidebayarea.com/ci_11693707?source=most_viewed)? Or preventing the financial disaster known as Measure OO?
Moreover, the excuse of "oh, but the City is broke" makes about as much sense as the homeless drug addict mugging a law abiding citizen claiming, "oh, but I was hungry." The reality is, the City knew what it was doing was illegal, and did it anyway, because they thought they wouldn't get caught. Regarding the amount of money at issue, I do not believe it is $9 million, like the City claims. I think it is far closer to $15 million - $3.5 million from the $7.7 Recruitment Program adopted in March, and another $11 million or so from monies stolen under the "40% Formula" (see my explanation from my first post).
Gammon goes on to criticize community policing and proclaims that "police brass deserves credit for making it a low priority" and that it only benefits "the wealthy." But making it a "low priority" constituted a violation of the law (i.e., the "police brass" did not have the right to make such a decision), and went against the will of more than two thirds of the voters, most of whom would hardly qualify as "wealthy." Guess Gammon doesn't believe in democracy. I voted for Measure Y because I felt that Oakland's police force was tremendously understaffed, and I appreciated the idea of having at least one officer in my beat who understood the beat and its own particular crime issues. I don't think this sentiment is shared only by the "wealthy." Gammon seems to believe that all the crime in Oakland goes on only in certain parts of the city, and that other parts are immune. Clearly, he doesn't live in Oakland. Does he think that because my neighborhood doesn't have daily shootings, that we don't deserve any police protection at all? While Gammon may not agree with the staffing strategy, it is what the law requires, it is what the voters wanted, and he should just shut up already, or try to change the law himself.
Oh, and speaking of which, he proclaims that the law should be "repealed." The guy has absolutely no idea what he's talking about. Under the law, Measure Y needed to be approved by two thirds of the electorate. Does he have any clue about what would be required to repeal the law, and the expense that would entail? Did he even think to ask a lawyer about this minor detail?
He claims that my suit "will either will worsen the city's already dire financial problems or force inexperienced cops into jobs they're not ready to handle." Wrong, on both the law and the facts. My goal has never been to bankrupt the City. Had he spoken to me, I could have told him that. As far as forcing rookie cops into Measure Y positions - that's ludicrous. City policy doesn't allow it, and the City cannot get around the restrictions on Measure Y spending simply by changing a policy that everyone agrees makes sense. Lastly, while the PSO positions may be filled, there are still several Measure Y positions that still have not been filled, nearly five years after the measure passed. This is inexcusable.
The final insult is that I am a "well meaning busybody in the hills with too much time on [my] hands...." Well, if it weren't for people who were committed to their causes, and willing to devote time and effort to achieve their goals, what kind of society would we have? "Nobody made a greater mistake than he who did nothing because he could do only a little." - Edmund Burke
Nevertheless, Mr. Gammon could have just picked up the phone and called me, or at least sent me an e-mail, before printing his piece, full of misinformation, which I will now take the time to correct here.
Me, a political gadfly? Hardly. I've only been to one City Council meeting in my life. I've had no involvement in Oakland politics, ever, with the exception of this lawsuit. If every concerned citizen who stands up for their rights, and the rights of their neighbors, is a "gadfly," then I guess that's me.
Gammon claims I am pushing for a "strict interpretation of Measure Y." No, I'm pushing for the City to follow the law, i.e. what the voters intended. The voters intended that we get 63 additional police officers, increase the size of the force, with the purpose of decreasing crime. That's not what we got. What we got was a slush fund that the City felt it could dip into for whatever it felt like, like paying for the academy training expenses of Deborah Edgerly's daughter, who flunked four times. See http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2007/02/02/BAG1GNTL8P1.DTL
In fact, it was the City that pressed for a hyper-technical, overly strict reading of Measure Y when it claimed the law didn't require it to actually employ 739 officers as a precondition to collecting the tax, and that all that was required was "appropriation" of funds to hire the officers.
Without any research whatsoever, Gammon arrogantly claims, "After all, Measure Y clearly allows the department to hire and train rookies for problem-solving positions." Gammon, however, is not a lawyer and is not trained in the rules of statutory construction. In addition, because Gammon didn't attend the court hearing, or read the initial pleadings that I filed, he was unaware of the argument that Measure Y was never intended to pay for recruiting and academy expenses of any police officers, Measure Y or otherwise. That's because the measure specifically provides for $500,000 annually for "equipment and training," but does not actually allocate any money for recruitment or academy expenses. In his statements in court, Judge Roesch appeared to agree with my interpretation of Measure Y on these issues, not the City's.
Measure Y was meant to fund police officer salaries and benefits. The general fund was supposed to pay for recruitment and academy training. While this fact may have meant that Measure Y was underfunded, or poorly drafted, that does not make the City's actions legal.
Next, Gammon goes on to explain why he thinks the City's decision to take the money from Measure Y, as opposed to the general fund, made sense: because the general fund had no money. I am tired of hearing this same old sorry excuse. The real reason the general fund has no money is because the City's priorities are all screwed up. Providing police services to the residents is one of the most, if not the most basic city service there is. How about cutting out the lunches at Bay Wolf (http://www.berkeleydailyplanet.com/issue/2008-07-10/article/30510?headline=Civil-Grand-Jury-Appalled-By-Oakland-s-Credit-Card-Policies)?
How about taking away Ron Dellums' private chauffeur (http://www.sfgate.com/cgi-bin/blogs/sfgate/detail?blogid=14&entry_id=27338) and other bloated, unnecessary expenses? How about trying to prevent the multi-million dollar debacles like the Riders case, or the more recent Valerga case (http://www.insidebayarea.com/ci_11693707?source=most_viewed)? Or preventing the financial disaster known as Measure OO?
Moreover, the excuse of "oh, but the City is broke" makes about as much sense as the homeless drug addict mugging a law abiding citizen claiming, "oh, but I was hungry." The reality is, the City knew what it was doing was illegal, and did it anyway, because they thought they wouldn't get caught. Regarding the amount of money at issue, I do not believe it is $9 million, like the City claims. I think it is far closer to $15 million - $3.5 million from the $7.7 Recruitment Program adopted in March, and another $11 million or so from monies stolen under the "40% Formula" (see my explanation from my first post).
Gammon goes on to criticize community policing and proclaims that "police brass deserves credit for making it a low priority" and that it only benefits "the wealthy." But making it a "low priority" constituted a violation of the law (i.e., the "police brass" did not have the right to make such a decision), and went against the will of more than two thirds of the voters, most of whom would hardly qualify as "wealthy." Guess Gammon doesn't believe in democracy. I voted for Measure Y because I felt that Oakland's police force was tremendously understaffed, and I appreciated the idea of having at least one officer in my beat who understood the beat and its own particular crime issues. I don't think this sentiment is shared only by the "wealthy." Gammon seems to believe that all the crime in Oakland goes on only in certain parts of the city, and that other parts are immune. Clearly, he doesn't live in Oakland. Does he think that because my neighborhood doesn't have daily shootings, that we don't deserve any police protection at all? While Gammon may not agree with the staffing strategy, it is what the law requires, it is what the voters wanted, and he should just shut up already, or try to change the law himself.
Oh, and speaking of which, he proclaims that the law should be "repealed." The guy has absolutely no idea what he's talking about. Under the law, Measure Y needed to be approved by two thirds of the electorate. Does he have any clue about what would be required to repeal the law, and the expense that would entail? Did he even think to ask a lawyer about this minor detail?
He claims that my suit "will either will worsen the city's already dire financial problems or force inexperienced cops into jobs they're not ready to handle." Wrong, on both the law and the facts. My goal has never been to bankrupt the City. Had he spoken to me, I could have told him that. As far as forcing rookie cops into Measure Y positions - that's ludicrous. City policy doesn't allow it, and the City cannot get around the restrictions on Measure Y spending simply by changing a policy that everyone agrees makes sense. Lastly, while the PSO positions may be filled, there are still several Measure Y positions that still have not been filled, nearly five years after the measure passed. This is inexcusable.
The final insult is that I am a "well meaning busybody in the hills with too much time on [my] hands...." Well, if it weren't for people who were committed to their causes, and willing to devote time and effort to achieve their goals, what kind of society would we have? "Nobody made a greater mistake than he who did nothing because he could do only a little." - Edmund Burke
Sunday, February 15, 2009
The City's Response - Blame The Taxpayers And Obfuscate
"It's a setback in terms of being significant general fund money we may have to pay back," City Council President Jane Brunner said Tuesday. "... I can't fathom where we're going to get the cuts from to balance the budget at this time." This is a quote from the SF Chronicle. The original story that was posted had Jane complaining that this was going to hurt "parks and libraries."
Come on Jane, that doesn't sound like much of an apology to me for violating the law. The City Council voted to approve the recruitment program knowing it was illegal, so they shouldn't act all surprised when a judge rules against them. Nor should they blame the taxpayers who try to hold them accountable and make them sound like the bad guys for taking away "parks and libraries." Give me a break. City officials need to be held accountable, and that is what this suit was about.
Next, the Mayor's office issued a statement that begins as follows: "Fundamental to any civilized society is the right of people to go about their lives with the sense of peace, secruity and safety." Yeah, right, Mr. Dellums. And fundamental to any civilized society is the rule of law, and the right of people to have their elected officials follow the law and not steal their money and lie about it. Interestingly, the Mayor's statement acknowledges that Measure Y requires staffing at 802 officers. But the City is claiming that it didn't violate the law because all officers should be considered "community policing officers," and therefore, Measure Y officers. Too bad for the City that such a statement flies in the face of Resolution 72727 and 79235, both of which give a very specific definition of a community police officer.
You can check out the latest Tribune article about the City's intention to appeal (no surprise) here.
http://www.insidebayarea.com/search/ci_11693707?IADID=Search-www.insidebayarea.com-www.insidebayarea.com
Come on Jane, that doesn't sound like much of an apology to me for violating the law. The City Council voted to approve the recruitment program knowing it was illegal, so they shouldn't act all surprised when a judge rules against them. Nor should they blame the taxpayers who try to hold them accountable and make them sound like the bad guys for taking away "parks and libraries." Give me a break. City officials need to be held accountable, and that is what this suit was about.
Next, the Mayor's office issued a statement that begins as follows: "Fundamental to any civilized society is the right of people to go about their lives with the sense of peace, secruity and safety." Yeah, right, Mr. Dellums. And fundamental to any civilized society is the rule of law, and the right of people to have their elected officials follow the law and not steal their money and lie about it. Interestingly, the Mayor's statement acknowledges that Measure Y requires staffing at 802 officers. But the City is claiming that it didn't violate the law because all officers should be considered "community policing officers," and therefore, Measure Y officers. Too bad for the City that such a statement flies in the face of Resolution 72727 and 79235, both of which give a very specific definition of a community police officer.
You can check out the latest Tribune article about the City's intention to appeal (no surprise) here.
http://www.insidebayarea.com/search/ci_11693707?IADID=Search-www.insidebayarea.com-www.insidebayarea.com
Tentative Ruling In Taxpayers' Favor!
On February 9, 2009, the Superior Court issued a tentative ruling that the City's use of Measure Y funds to recruit and hire non-Measure Y officers was not legal, and that the City would have to refund Measure Y. The Court also ruled that the City had failed to conduct the mandatory audits.
A full hearing was held on February 11, 2009. Judge Frank Roesch did not seem inclined to change his tentative ruling on the main issues. In addition, he seemed to indicate that he was inclined to interpret the language of Measure Y to mean that the City could not spend Measure Y money for any training at all, not even academy training for Measure Y officers, because the measure only contemplated training for "community policing techniques." I argued that the Court should at least grant declaratory relief on the remaining issues, including the City's practice of assigning MY officers to duties outside of their beats, requiring the hiring of 63 MY officers, and staffing at 802 officers. The Court took the matter under submission. A final ruling is expected in the near future.
A full hearing was held on February 11, 2009. Judge Frank Roesch did not seem inclined to change his tentative ruling on the main issues. In addition, he seemed to indicate that he was inclined to interpret the language of Measure Y to mean that the City could not spend Measure Y money for any training at all, not even academy training for Measure Y officers, because the measure only contemplated training for "community policing techniques." I argued that the Court should at least grant declaratory relief on the remaining issues, including the City's practice of assigning MY officers to duties outside of their beats, requiring the hiring of 63 MY officers, and staffing at 802 officers. The Court took the matter under submission. A final ruling is expected in the near future.
Previous Rulings
Lying Politicians and City Officials
The text of Measure Y provides under the heading of "minimum staffing" that the City CANNOT collect Measure Y taxes unless the City appropriates sufficient funds for 739 sworn officers, the authorized strength at the time MY was adopted. Numerous city council members and city officials assured voters that the City would not collect the tax unless the police force was staffed with at least 739 officers. But once MY went into effect, and the size of the police force WENT DOWN, the City continued to collect the tax, its previous promises notwithstanding.
That's when Charles Pine filed his lawsuit, and the City claimed that the language actually meant that all the City had to do was "appropriate" enough money for 739 officers; it didn't actually have to have 739 officers employed. What a bunch of legal gobbledegook.
Worse yet, the City maintained a page on ITS OWN WEBSITE FAQs regarding MY, that interpreted the relevant language in the way any half-literate and logical person would, i.e. it meant the City would not collect the tax unless the City actually staffed the department at 739. The link to the FAQs is right here...
http://measurey.org/index.php?page=measure-y-faq
(Can you believe it is still posted?)
In my lawsuit, I raised the same allegations that Mr. Pine did, and the City filed a "motion to dismiss," on the grounds that all that was required was "appropriation of funds," the posted FAQs and other lies told by politicians notwithstanding. Unfortunately, there is a published case that basically holds that statements made by lying politicians cannot be used as evidence in interpreting ambiguous statutory language, and the judge in my lawsuit dismissed this particular allegation. You can read the story about the hearing on that motion here.
http://www.ktvu.com/news/16923250/detail.html
The text of Measure Y provides under the heading of "minimum staffing" that the City CANNOT collect Measure Y taxes unless the City appropriates sufficient funds for 739 sworn officers, the authorized strength at the time MY was adopted. Numerous city council members and city officials assured voters that the City would not collect the tax unless the police force was staffed with at least 739 officers. But once MY went into effect, and the size of the police force WENT DOWN, the City continued to collect the tax, its previous promises notwithstanding.
That's when Charles Pine filed his lawsuit, and the City claimed that the language actually meant that all the City had to do was "appropriate" enough money for 739 officers; it didn't actually have to have 739 officers employed. What a bunch of legal gobbledegook.
Worse yet, the City maintained a page on ITS OWN WEBSITE FAQs regarding MY, that interpreted the relevant language in the way any half-literate and logical person would, i.e. it meant the City would not collect the tax unless the City actually staffed the department at 739. The link to the FAQs is right here...
http://measurey.org/index.php?page=measure-y-faq
(Can you believe it is still posted?)
In my lawsuit, I raised the same allegations that Mr. Pine did, and the City filed a "motion to dismiss," on the grounds that all that was required was "appropriation of funds," the posted FAQs and other lies told by politicians notwithstanding. Unfortunately, there is a published case that basically holds that statements made by lying politicians cannot be used as evidence in interpreting ambiguous statutory language, and the judge in my lawsuit dismissed this particular allegation. You can read the story about the hearing on that motion here.
http://www.ktvu.com/news/16923250/detail.html
What My Lawsuit Is About
I have filed what is called a "writ petition." This is a special type of lawsuit, generally filed against public entities, when the public entity has "clear and ministerial duty" to do (or not do) certain things, as specified or prohibited by law. It is different from a lawsuit for damages, because I am not suing for money; rather, I am suing to force the City to do what it is legally required to do.
My lawsuit alleges that the City has violated Measure Y in the following ways:
1. $7.7 Million Recruitment Program
In March, 2008, the Mayor's proposal to take $7.7 million of Measure Y money to fund generalized recruitment and training was approved by the City Council. None of the officers to be recruited and hired were destined for MY positions. Measure Y required that the money be used to "hire and maintain" 63 officers, who are supposed to perform very specific duties, as outlined in MY. Therefore, taking the money for any other reason was illegal. To date, at least $3.4 million has been spent illegally. The City took the money because its own general fund was broke. They knew what they were doing was illegal, but they didn't think anybody would really stand up to them and sue.
2. Application of the 40% Formula
In 2005, the City officials (not the City Council) decided that because patrol was understaffed, they would adopt a deployment goal for staffing the 63 MY positions. The goal was that of the officers graduating from the academy, 40% of that number (as opposed to 40% of the actual graduates) would be deployed to MY positions. But the officers who would be deployed would be veteran officers, and the new graduates would backfill for them. Claiming that this was the goal, the City began charging MY 40% of all recruitment and training expenses. However, the City never deployed anything close to the 40% goal. Rather, it was closer to 13%. Therefore, the strategy was both factually and legally unjustified. I estimate that the City has taken approximately $11 million from MY under the 40% Formula. The City apparently took the money without ever having received approval from the City Attorney or the City Council. They just thought nobody would notice.
3. Failure to hire the required 63 Additional Officers
MY required that the City hire an additional 63 officers, who were supposed to provide very specific "community policing" functions, as outlined in MY. Voters approved MY in November, 2004. Here we are now in February, 2009, and the positions have still not been filled. The City put filling MY positions on the back burner for years, and this was clearly contrary to the will of the voters and the requirements of MY. The City has made various excuses for failing to hire the 63 officers, claiming that it isn't actually "required" by the measure, and that there is no "deadline" by which they must be hired. Sorry, but five years into a 10 year measure, this is no excuse.
4. Failure to staff police department at 802 officers
MY was supposed to provide increased police staffing. After passage of MY, the staffing actually plummeted. By May, 2007, the police department was actually 91 officers UNDER its authorized strength. The City continues to refuse that it is obligated to fully staff the police department, and continues to make excuses for why it can't provide full staffing.
5. Deploying MY Officers to Non-MY Duties
MY officers must be assigned to serve "solely" the residents of their beats. However, in 2006 and 2007, the City decided to assign PSOs to spend one full shift per week responding to 911 calls. In addition, the City continues to have PSOs double up with each other because of a shortage of vehicles, forcing PSOs to spend up to half their time not serving "solely" the residents of their own beats. The City could, of course, buy additional vehicles. Instead, it is choosing to violate MY.
5. Failure to conduct mandatory annual audits
Both the Government Code and the text of Measure Y require annual audits. With no explanation or excuse, the City has NEVER performed the required annual audits.
My lawsuit alleges that the City has violated Measure Y in the following ways:
1. $7.7 Million Recruitment Program
In March, 2008, the Mayor's proposal to take $7.7 million of Measure Y money to fund generalized recruitment and training was approved by the City Council. None of the officers to be recruited and hired were destined for MY positions. Measure Y required that the money be used to "hire and maintain" 63 officers, who are supposed to perform very specific duties, as outlined in MY. Therefore, taking the money for any other reason was illegal. To date, at least $3.4 million has been spent illegally. The City took the money because its own general fund was broke. They knew what they were doing was illegal, but they didn't think anybody would really stand up to them and sue.
2. Application of the 40% Formula
In 2005, the City officials (not the City Council) decided that because patrol was understaffed, they would adopt a deployment goal for staffing the 63 MY positions. The goal was that of the officers graduating from the academy, 40% of that number (as opposed to 40% of the actual graduates) would be deployed to MY positions. But the officers who would be deployed would be veteran officers, and the new graduates would backfill for them. Claiming that this was the goal, the City began charging MY 40% of all recruitment and training expenses. However, the City never deployed anything close to the 40% goal. Rather, it was closer to 13%. Therefore, the strategy was both factually and legally unjustified. I estimate that the City has taken approximately $11 million from MY under the 40% Formula. The City apparently took the money without ever having received approval from the City Attorney or the City Council. They just thought nobody would notice.
3. Failure to hire the required 63 Additional Officers
MY required that the City hire an additional 63 officers, who were supposed to provide very specific "community policing" functions, as outlined in MY. Voters approved MY in November, 2004. Here we are now in February, 2009, and the positions have still not been filled. The City put filling MY positions on the back burner for years, and this was clearly contrary to the will of the voters and the requirements of MY. The City has made various excuses for failing to hire the 63 officers, claiming that it isn't actually "required" by the measure, and that there is no "deadline" by which they must be hired. Sorry, but five years into a 10 year measure, this is no excuse.
4. Failure to staff police department at 802 officers
MY was supposed to provide increased police staffing. After passage of MY, the staffing actually plummeted. By May, 2007, the police department was actually 91 officers UNDER its authorized strength. The City continues to refuse that it is obligated to fully staff the police department, and continues to make excuses for why it can't provide full staffing.
5. Deploying MY Officers to Non-MY Duties
MY officers must be assigned to serve "solely" the residents of their beats. However, in 2006 and 2007, the City decided to assign PSOs to spend one full shift per week responding to 911 calls. In addition, the City continues to have PSOs double up with each other because of a shortage of vehicles, forcing PSOs to spend up to half their time not serving "solely" the residents of their own beats. The City could, of course, buy additional vehicles. Instead, it is choosing to violate MY.
5. Failure to conduct mandatory annual audits
Both the Government Code and the text of Measure Y require annual audits. With no explanation or excuse, the City has NEVER performed the required annual audits.
Saturday, February 14, 2009
Starting My Measure Y Blog
I decided to create this blog to provide information to those (few) who might be interested in details of my lawsuit and experiences in suing the City of Oakland over its abuses of Measure Y. After the recent news coverage about the suit (following the court's tentative ruling on February 9, 2009), I felt some context regarding my motiviations and goals was in order. So here goes.
Why I Sued the City
In 2004, Oakland voters approved Measure Y, a special tax that was designed to provide additional funding for police and violence prevention programs. Individual homeowners pay $88.00 per year, and the money was specifically supposed to provide 63 additional police officers, including 57 problem solving officers, one for each beat in Oakland. In 2007, we had a rash of armed robberies in my once relatively safe neighborhood near the Mormon Temple. When one of my neighbors two doors down was mugged getting out of his car, I looked into what was going on in our neighborhood, including what our “problem solving officer” was doing about it. That’s when I found out that we didn’t have a “problem solving officer,” (“PSO”) because our neighborhood wasn’t “stressed” enough. Specifically, Oakland was apparently staffing the PSO positions based on where they appeared on the “stressor” index, and the most dangerous neighborhoods got their PSOs first. While I didn’t necessarily object to this strategy, it seemed that three years after the tax was passed, all of the positions should have been filled.
That’s when I found out that another concerned Oakland resident, Charles Pine, had already sued the City over the issue, and lost. But I organized our neighbors, and we had a community meeting to heighten awareness about the issues. A representative from Jean Quan’s office came, as well as a Deputy Chief from the police department. While the meeting helped to heighten awareness, I felt that the response from Ms. Quan and the police was inadequate. They basically told us to keep our lights on, trim our hedges, and meet each other. The fact that I was paying $88 a year and not getting anything in return still bothered me.
Crime in our immediate neighborhood seemed to abate, and I got busy with other things. But I started paying a lot more attention to crime in Oakland, and police staffing, than I had in the past. Like many Oakland residents, I was appalled when I heard about the 10 year old boy who was shot at the top of Piedmont Avenue while attending a piano lesson. The political pressure was now on City officials, and they needed to stop claiming that Oakland's police force was adequate.
The City had still not filled anywhere close to all the PSO positions. The fact that many of the positions were not filled meant that money in Measure Y had been accumulating. At the beginning of 2008, the Measure Y fund had $17 million. The City’s general fund, however, was broke. In February, 2008 Mayor Dellums announced that he was going to take $7.7 million of Measure Y money for generalized recruiting and police academy training. He claimed the police department was understaffed because of recruitment and attrition problems, and additional funds were needed to address that. While general staffing issues needed to be addressed, it was the General Fund that needed to pay for that.
I’m a lawyer and in my day job, I represent public entities, specifically, school districts and community college districts. I had once defended a local school district in a lawsuit that alleged that a bond measure required the school district to fund certain things. Therefore, I already was quite familiar with the law on how restricted bond and special tax monies can be. When the taxpayers approve such a measure, it must be by a two thirds vote, and the money can only be used for the very specific things identified in the measure. I reviewed the specific language of Measure Y, and I knew that the Mayor’s plan was illegal.
Therefore, I e-mailed various city officials, including City Council members, the Mayor’s Office, the City Attorney’s office, and others, and advised them of my opinions, and told them that if they proceeded with the plan, they could be sued. (At the time, I never really thought I’d sue them.)
The City Attorney’s Office issued a legal opinion in response to my e-mail, emphasizing that the City could only use Measure Y funds if it was to “hire and maintain” Measure Y officers. The opinion indicated that the City could not “borrow” money from Measure Y. My position was that it was clear from the proposed resolution that the money was to be used for generalized recruitment and training, not recruitment and training of Measure Y officers. Moreover, “hire and maintain” (the language from the text of Measure Y) makes no mention of “recruitment and academy training” - therefore, the money should not have been used for that. Rather, funds for recruitment and training should have come from the General Fund.
The Measure Y Oversight Committee rejected the Mayor's proposal. But because they only serve an “advisory” capacity, the City felt that this decision could be ignored. At the March 4, 2008 City Council meeting, the council members were well aware that not all of the new officers could possibly be considered Measure Y officers, even though that's what Chief Tucker was claiming. As I learned later, they should have known that none of them could be Measure Y officers, because by long-term policy, Measure Y officers had to have at least three years of training in patrol, meaning that only veteran officers could be placed in such positions. Nevertheless, the City Council passed the resolution unanimously.
I did some internet research and found that the abuses to Measure Y were far greater than this $7.7 million accelerated recruitment program. Basically, the City had been using Measure Y as a slush fund ever since it was passed. The abuses were striking and numerous. As a taxpayer and lawyer, I felt like I couldn’t just sit back and allow this to happen. So during the rest of March, in my spare time, I began gathering materials from various sources and put together my lawsuit, which was filed in early April, 2008.
Why I Sued the City
In 2004, Oakland voters approved Measure Y, a special tax that was designed to provide additional funding for police and violence prevention programs. Individual homeowners pay $88.00 per year, and the money was specifically supposed to provide 63 additional police officers, including 57 problem solving officers, one for each beat in Oakland. In 2007, we had a rash of armed robberies in my once relatively safe neighborhood near the Mormon Temple. When one of my neighbors two doors down was mugged getting out of his car, I looked into what was going on in our neighborhood, including what our “problem solving officer” was doing about it. That’s when I found out that we didn’t have a “problem solving officer,” (“PSO”) because our neighborhood wasn’t “stressed” enough. Specifically, Oakland was apparently staffing the PSO positions based on where they appeared on the “stressor” index, and the most dangerous neighborhoods got their PSOs first. While I didn’t necessarily object to this strategy, it seemed that three years after the tax was passed, all of the positions should have been filled.
That’s when I found out that another concerned Oakland resident, Charles Pine, had already sued the City over the issue, and lost. But I organized our neighbors, and we had a community meeting to heighten awareness about the issues. A representative from Jean Quan’s office came, as well as a Deputy Chief from the police department. While the meeting helped to heighten awareness, I felt that the response from Ms. Quan and the police was inadequate. They basically told us to keep our lights on, trim our hedges, and meet each other. The fact that I was paying $88 a year and not getting anything in return still bothered me.
Crime in our immediate neighborhood seemed to abate, and I got busy with other things. But I started paying a lot more attention to crime in Oakland, and police staffing, than I had in the past. Like many Oakland residents, I was appalled when I heard about the 10 year old boy who was shot at the top of Piedmont Avenue while attending a piano lesson. The political pressure was now on City officials, and they needed to stop claiming that Oakland's police force was adequate.
The City had still not filled anywhere close to all the PSO positions. The fact that many of the positions were not filled meant that money in Measure Y had been accumulating. At the beginning of 2008, the Measure Y fund had $17 million. The City’s general fund, however, was broke. In February, 2008 Mayor Dellums announced that he was going to take $7.7 million of Measure Y money for generalized recruiting and police academy training. He claimed the police department was understaffed because of recruitment and attrition problems, and additional funds were needed to address that. While general staffing issues needed to be addressed, it was the General Fund that needed to pay for that.
I’m a lawyer and in my day job, I represent public entities, specifically, school districts and community college districts. I had once defended a local school district in a lawsuit that alleged that a bond measure required the school district to fund certain things. Therefore, I already was quite familiar with the law on how restricted bond and special tax monies can be. When the taxpayers approve such a measure, it must be by a two thirds vote, and the money can only be used for the very specific things identified in the measure. I reviewed the specific language of Measure Y, and I knew that the Mayor’s plan was illegal.
Therefore, I e-mailed various city officials, including City Council members, the Mayor’s Office, the City Attorney’s office, and others, and advised them of my opinions, and told them that if they proceeded with the plan, they could be sued. (At the time, I never really thought I’d sue them.)
The City Attorney’s Office issued a legal opinion in response to my e-mail, emphasizing that the City could only use Measure Y funds if it was to “hire and maintain” Measure Y officers. The opinion indicated that the City could not “borrow” money from Measure Y. My position was that it was clear from the proposed resolution that the money was to be used for generalized recruitment and training, not recruitment and training of Measure Y officers. Moreover, “hire and maintain” (the language from the text of Measure Y) makes no mention of “recruitment and academy training” - therefore, the money should not have been used for that. Rather, funds for recruitment and training should have come from the General Fund.
The Measure Y Oversight Committee rejected the Mayor's proposal. But because they only serve an “advisory” capacity, the City felt that this decision could be ignored. At the March 4, 2008 City Council meeting, the council members were well aware that not all of the new officers could possibly be considered Measure Y officers, even though that's what Chief Tucker was claiming. As I learned later, they should have known that none of them could be Measure Y officers, because by long-term policy, Measure Y officers had to have at least three years of training in patrol, meaning that only veteran officers could be placed in such positions. Nevertheless, the City Council passed the resolution unanimously.
I did some internet research and found that the abuses to Measure Y were far greater than this $7.7 million accelerated recruitment program. Basically, the City had been using Measure Y as a slush fund ever since it was passed. The abuses were striking and numerous. As a taxpayer and lawyer, I felt like I couldn’t just sit back and allow this to happen. So during the rest of March, in my spare time, I began gathering materials from various sources and put together my lawsuit, which was filed in early April, 2008.
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