So, I’ve had some time to think about and digest the decision, and compose my thoughts. First, I am, of course, extremely unhappy about the City’s initial statement that it intends to appeal the decision. I hope that this is just something they feel they “have” to say, because if they were to actually appeal, that would be idiotic from a legal standpoint, and just plain wrong from a strategic standpoint. The City would not have a prayer of getting the main portions of the decision reversed on appeal. There is not a single case or any other law that would convince an appellate court that the City did not manifestly abuse Measure Y funds. Moreover, if the City appeals, I’ll cross-appeal on the things I didn’t win on (and I didn’t win on everything, unfortunately), and the City would actually risk being in worse shape after an appellate decision. The only possible reason the City would appeal is to delay the impact of the decision, so they wouldn‘t have to pay the money back right away. City officials also probably think an appeal would mitigate the humiliation of the loss - I disagree. I just think it makes them look worse. Even more dishonest, disingenuous and conniving than I originally thought. And that’s saying something. But just to let everybody know, I still love a good fight, and if the City wants to appeal, bring it on.
One of the things that’s been lost in the discussion is that the Resolution from March, 2008 - the one that started this whole mess - promises to pay the money back if it turned out the money was used for non-Measure Y officers. It’s right there in the Resolution. Check it out at clerkwebsvr1.oaklandnet.com/attachments/18911.pdf. Jane Brunner herself insisted that this language be inserted. Now, I don’t think putting that language in saved the Resolution from being illegal, because you’re still not allowed to “borrow” money from a special tax fund, but the bottom line is that the City Council already publicly voted to pay the money back. We now know none of the officers were placed in Measure Y positions - they all went straight to patrol. So by virtue of the Resolution’s language itself, the money is owed back. There is no way that the City could possibly argue otherwise.
And what about the audits? The City NEVER conducted a SINGLE AUDIT that it was supposed to under Measure Y. The whole point of the audits is to ensure that the money is spent correctly, and that the projects that are supposed to be funded with the money actually get done. Not only were there no audits, there was not even an effort to do one (until I sued). What does this tell you about actual oversight of tax money? It doesn’t happen! Neighbors, your City officials will lie, cheat, and steal and refuse to be held accountable. It’s outrageous! How can you allow that? There’s one way to send a strong message to your representatives, and that’s to VOTE NO on every single tax measure they put in front of you, until they’ve made good on their promises under Measure Y and regain your trust. And that’s not going to happen for a long time.
Sunday, April 5, 2009
Friday, April 3, 2009
The Decision Is IN
Basically, the final decision upholds the rulings made in the tentative decision. Here it is:
ALAMEDA COUNTY
APR 02 2009
CLERK OF THE SUPERIOR COURT By , Deputy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ALAMEDA
RG08380286
PROPOSED STATEMENT OF DECISION GRANTING IN PART PETITION FOR WRIT OF MANDATE
The Petition of Marleen L. Sacks came on regularly for hearing on February 11, 2009, in Department 31 of this Court, the Honorable Frank Roesch presiding. Petitioner appeared in propria persona. Respondent City of Oakland appeared by counsel Kevin D. Siegel and Mark Morodomi.
The Court having considered the pleadings, arguments and admissible evidences submitted in support of and in opposition to the Petition, and good cause appearing, the Court issues this Proposed Statement of Decision GRANTING IN PART the Petition for Writ of Mandate. This Proposed Statement of Decision shall be the Statement of Decision unless, within the period prescribed in California Rules of Court, Rule 3.1590, either party specifies controverted issues or makes proposals not covered in the proposed decision, or files objections thereto.
The Petition for Writ of mandate and other causes of action are GRANTED IN PART as follows:
The Court rules as follows on the evidence submitted: The parties' respective requests for judicial notice are GRANTED.
Measure Y calls for the revenue collected thereunder to be used for "hiring and maintaining" community policing officers ("PSOs"). (Measure Y, Part 1 §3(1).) It also permits up to $500,000 per year of Measure Y funds to be used for training and equipment, which it specifies as "training in community-policing techniques." (Measure Y, Part 1 §3(1)(e).) Use of Measure Y funds to train new officers who will not be placed in Measure Y positions is not a permissible use of funds specifically Iimited to "hiring and maintaining" community policing officers, regardless of whether those trained will backfill patrol assignments in order to free up veterans for Measure Y positions. To the extent that the City has used Measure Y funds for training and academy expenses for new officers trained in those academies who were not placed into Measure Y positions, such a use was not permitted by Measure Y.
Likewise, the Court finds that the Augmented Recruitment Program of 2008, in which the City voted to use Measure Y money to fund 100% of new academies, is an impermissible use of Measure Y funds. It is conceded by the City that those academies were not training new Measure Y officers, and that newly-trained officers are not, as a matter of policy, placed in PSO positions immediately after graduation from the academy. (See Declaration of Deputy Chief David Kozicki, filed January 20, 2009, at T20-24.)
The City also failed to complete the annual audits required by Government Code §50075.1. The City offers, as substantial compliance with this requirement, the independent auditor's reports for January 1, 2005 to June 30, 2005, and for the fiscal years ending June 30, 2006, and June 30, 2007, and staff reports to the Council regarding Measure Y. (See Declaration of Ace Tago, filed January 20, 2009, at Exh. A-C, and Declaration of Jeff Baker, filed January 20, 2009, at Exh. A.) The auditor's reports state that they are "intended solely for the information and use of the City's Mayor and City Council and the City's management and [are] not intended to be and should not be used by anyone other than these specified parties." (See Tago Dec., supra, at Exh. A, page 2.) These reports do not substantially comply with the requirement that the City's chief financial officer "file a report with its governing body . . . at least once a year" stating the amount of funds collected and expended, and the status of any project required or authorized to be funded." (Cal. Gov't Code §50075.3.)
For each of these reasons, Petitioner is entitled to writ relief directing the City to restore to the Measure Y fund all monies that were used for hiring, training and recruiting officers who were not placed in Measure Y positions. Further, Petitioner is entitled to writ relief requiring the City to complete the annual reports as required by Gov't Code §50075.1.
As to Petitioner's contention that the City was required to have a certain number of officers in order to collect the tax, the Court has previously ruled that Measure Y requires that the City appropriate funds for such positions. The Court has not been persuaded that its earlier ruling is in error. Measure Y does not specifically require that all positions be filled in order to continue collecting the tax.
Likewise, there is no violation of a ministerial duty by virtue of the fact that Measure Y officers might not spend 100% of their time working within their beats. Measure Y says, in Part 1 Section 3, § 1(a) "each community policing beat shall have at least one neighborhood officer assigned solely to serve the residents of that beat to provide consistent contact and familiarity between residents and officers. The City has put forth evidence that a Measure Y officer has been assigned to each beat as of September 2008. (Kozicki Dec., supra, at x(11, 12, 14, and 34.) So long as that is their assignment, the City does not violate its ministerial duties created by Measure Y when, on occasion, a PSO might lend assistance to a fellow officer working outside his or her heat. It is the clear intent of Measure Y that the officers assigned to PSO beats be assigned solely to serve the residents within the geographic confines of the beat. However, Measure Y does not require that a PSO to remain within the geographic confines of the beat at all times, or proscribe the flexibility needed by the police department to, on occasion, call a PSO to assist elsewhere.
Petitioner's request that the Court issue declaratory relief of the existence of a ministerial duty to maintain a police staff of 802 police officers inclusive of a base staff of 739 officers and 63 PSOs is DENIED. The text of Measure Y contains no such requirement. Arguments or analyses put forth at the time of the election cannot, by themselves, create such duties when those duties are not in the text of the measure approved. (See Associated Students of North Peralta Community College v. Board of Trustees (1979) 92 Cal.App.3d 672, 679-80.)
Petitioner has failed to exhaust her administrative remedies as to a tax refund for herself, and therefore such relief cannot be granted. Moreover, Petitioner cannot obtain refund relief for other taxpayers.
Petitioner's request that the Court grant mandate, declaratory or injunctive relief to enforce a mandatory duty relating to Section 3(1)(c) is DENIED; that request was not raised in the First Amended Petition.
Petitioner is direct to submit a proposed form of judgment for execution by the Court, and a proposed form of writ, for issuance by the Clerk of the Court, directly to Department 31 no later than April 16, 2009.
IT IS SO ORDERED.
DATED: Frank Roesch
Judge of the Superior
ALAMEDA COUNTY
APR 02 2009
CLERK OF THE SUPERIOR COURT By , Deputy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ALAMEDA
RG08380286
PROPOSED STATEMENT OF DECISION GRANTING IN PART PETITION FOR WRIT OF MANDATE
The Petition of Marleen L. Sacks came on regularly for hearing on February 11, 2009, in Department 31 of this Court, the Honorable Frank Roesch presiding. Petitioner appeared in propria persona. Respondent City of Oakland appeared by counsel Kevin D. Siegel and Mark Morodomi.
The Court having considered the pleadings, arguments and admissible evidences submitted in support of and in opposition to the Petition, and good cause appearing, the Court issues this Proposed Statement of Decision GRANTING IN PART the Petition for Writ of Mandate. This Proposed Statement of Decision shall be the Statement of Decision unless, within the period prescribed in California Rules of Court, Rule 3.1590, either party specifies controverted issues or makes proposals not covered in the proposed decision, or files objections thereto.
The Petition for Writ of mandate and other causes of action are GRANTED IN PART as follows:
The Court rules as follows on the evidence submitted: The parties' respective requests for judicial notice are GRANTED.
Measure Y calls for the revenue collected thereunder to be used for "hiring and maintaining" community policing officers ("PSOs"). (Measure Y, Part 1 §3(1).) It also permits up to $500,000 per year of Measure Y funds to be used for training and equipment, which it specifies as "training in community-policing techniques." (Measure Y, Part 1 §3(1)(e).) Use of Measure Y funds to train new officers who will not be placed in Measure Y positions is not a permissible use of funds specifically Iimited to "hiring and maintaining" community policing officers, regardless of whether those trained will backfill patrol assignments in order to free up veterans for Measure Y positions. To the extent that the City has used Measure Y funds for training and academy expenses for new officers trained in those academies who were not placed into Measure Y positions, such a use was not permitted by Measure Y.
Likewise, the Court finds that the Augmented Recruitment Program of 2008, in which the City voted to use Measure Y money to fund 100% of new academies, is an impermissible use of Measure Y funds. It is conceded by the City that those academies were not training new Measure Y officers, and that newly-trained officers are not, as a matter of policy, placed in PSO positions immediately after graduation from the academy. (See Declaration of Deputy Chief David Kozicki, filed January 20, 2009, at T20-24.)
The City also failed to complete the annual audits required by Government Code §50075.1. The City offers, as substantial compliance with this requirement, the independent auditor's reports for January 1, 2005 to June 30, 2005, and for the fiscal years ending June 30, 2006, and June 30, 2007, and staff reports to the Council regarding Measure Y. (See Declaration of Ace Tago, filed January 20, 2009, at Exh. A-C, and Declaration of Jeff Baker, filed January 20, 2009, at Exh. A.) The auditor's reports state that they are "intended solely for the information and use of the City's Mayor and City Council and the City's management and [are] not intended to be and should not be used by anyone other than these specified parties." (See Tago Dec., supra, at Exh. A, page 2.) These reports do not substantially comply with the requirement that the City's chief financial officer "file a report with its governing body . . . at least once a year" stating the amount of funds collected and expended, and the status of any project required or authorized to be funded." (Cal. Gov't Code §50075.3.)
For each of these reasons, Petitioner is entitled to writ relief directing the City to restore to the Measure Y fund all monies that were used for hiring, training and recruiting officers who were not placed in Measure Y positions. Further, Petitioner is entitled to writ relief requiring the City to complete the annual reports as required by Gov't Code §50075.1.
As to Petitioner's contention that the City was required to have a certain number of officers in order to collect the tax, the Court has previously ruled that Measure Y requires that the City appropriate funds for such positions. The Court has not been persuaded that its earlier ruling is in error. Measure Y does not specifically require that all positions be filled in order to continue collecting the tax.
Likewise, there is no violation of a ministerial duty by virtue of the fact that Measure Y officers might not spend 100% of their time working within their beats. Measure Y says, in Part 1 Section 3, § 1(a) "each community policing beat shall have at least one neighborhood officer assigned solely to serve the residents of that beat to provide consistent contact and familiarity between residents and officers. The City has put forth evidence that a Measure Y officer has been assigned to each beat as of September 2008. (Kozicki Dec., supra, at x(11, 12, 14, and 34.) So long as that is their assignment, the City does not violate its ministerial duties created by Measure Y when, on occasion, a PSO might lend assistance to a fellow officer working outside his or her heat. It is the clear intent of Measure Y that the officers assigned to PSO beats be assigned solely to serve the residents within the geographic confines of the beat. However, Measure Y does not require that a PSO to remain within the geographic confines of the beat at all times, or proscribe the flexibility needed by the police department to, on occasion, call a PSO to assist elsewhere.
Petitioner's request that the Court issue declaratory relief of the existence of a ministerial duty to maintain a police staff of 802 police officers inclusive of a base staff of 739 officers and 63 PSOs is DENIED. The text of Measure Y contains no such requirement. Arguments or analyses put forth at the time of the election cannot, by themselves, create such duties when those duties are not in the text of the measure approved. (See Associated Students of North Peralta Community College v. Board of Trustees (1979) 92 Cal.App.3d 672, 679-80.)
Petitioner has failed to exhaust her administrative remedies as to a tax refund for herself, and therefore such relief cannot be granted. Moreover, Petitioner cannot obtain refund relief for other taxpayers.
Petitioner's request that the Court grant mandate, declaratory or injunctive relief to enforce a mandatory duty relating to Section 3(1)(c) is DENIED; that request was not raised in the First Amended Petition.
Petitioner is direct to submit a proposed form of judgment for execution by the Court, and a proposed form of writ, for issuance by the Clerk of the Court, directly to Department 31 no later than April 16, 2009.
IT IS SO ORDERED.
DATED: Frank Roesch
Judge of the Superior
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