Sunday, October 25, 2009

Bizarro World: City Attorney Publicly Accuses His Own Client Of Negligence

Last Wednesday, City Attorney John Russo and City Auditor Courtney Ruby jointly published a “My Word” submission in the Trib, wherein they accused the City Council and City Administrator of essentially doing nothing to modify or improve policies and procedures related to record retention. As a result, they claim, the City has lost tens of thousands of dollars, and is at risk for much more in terms of potential liability. http://www.insidebayarea.com/opinion/ci_13602172. Now, I can understand the City Auditor calling the City to task for such an issue. But the City Attorney?

Under California law, an attorney must have “undivided loyalty” to his client, regardless of the circumstances. Flatt v. Superior Court (1994) 9 Cal. 4th 275, 289. An attorney must “represent his client zealously within the bounds of the law.” Hawk v. Superior Court (1974) 42 Cal. 3d 108, 126. According to a publication by the League of California Cities, “the city attorney represents the city as a whole….The city attorney’s duty of loyalty and confidentiality is owed to the city and the council as a whole, rather than to an individual….Everyone is on the same team. When the city attorney identifies potential legal problems, it is to protect the city.”

So I have to say it strikes me as particularly bizarre that John Russo would accuse his own clients of creating potential liability by failing to come up with appropriate record retention policies. Moreover, isn’t it his office’s responsibility to come up with proposed policies and procedures that comply with the law? I thought public record retention requirements were outlined in Government Code Section 34090 et seq. Couldn’t Russo’s office just draft some model policies and put them before the appropriate committee for consideration? Maybe that’s happened, but there’s no mention of where the hang-up is in the opinion piece.

I should also point out that it is Russo’s office that is responsible for administering and complying with the Public Records Act, and it has been doing a lousy job. The law requires that the City respond to all Public Records Act requests within 10 days. They don’t actually have to produce the records, but they have to acknowledge receipt of the request, and specify an approximate date when the records can be made available. I’ve submitted about a dozen requests to the City in the last year, and the City Attorney’s Office has practically never complied with the most basic requirements. I tried giving them suggestions on how to improve the process (since as a public sector lawyer this is something I have to deal with on a regular basis), but they still didn’t get the message. In exasperation, I filed a Public Ethics Complaint, outlining each and every violation in graphic detail. The complaint is currently pending. So again, I find it ironic that the City Attorney would be so full of righteous indignation on the issue of public records.

What appears to be going on here is a serious lack of communication and cooperation, and as a result, nothing is getting done. The Trib submission claims that both Ruby and Russo are the City’s “watchdogs.” Ruby is supposed to be a watchdog. But the City Attorney’s job is to represent the City, not to be a “watchdog.” Hey, I’m all for public shaming, but that really should be a last resort, particularly as to people who are supposed to be on the “same team” and working together to come up with solutions for the collective good.

The same lesson could be applied toward the ongoing fight over implementation of Measure Y. The City drafted Measure Y and campaigned for its passage. So why are they fighting me, when all I’m asking is that they just implement it? We should all be on the same team. Stop fighting with each other, and with me, and let’s all put our energy to better use to come up with a solution.

Thursday, October 22, 2009

Lessons From City Auditor’s Personnel Report: Fire Lindheim, Hire Captain Picard

Yesterday’s scathing audit regarding the City’s personnel practices highlighted one of the main culprits in the Measure Y debacle. While the report doesn’t mention him by name, I will. Peter Fitzsimmons was in charge of the police department’s budget - well over $100 million annually. And he only had a high school diploma.

The audit rips into the mysterious way he became permanent, without even possessing the minimum qualifications, and then was promoted to one of the most important jobs in the entire City, all without a competitive process or inquiry into whether he had the qualifications to perform the job.
Part of Fitzsimmons’ responsibilities included managing of the Measure Y budget and funds, and monitoring compliance with the infamous “40% Formula.” Now, to his credit, he did try to get other City folks to comply with the formula, and nagged them when they were utterly failing. But he should have done more. He should have known that the 40% formula was illegal and unauthorized from the get go. But when questioned about the incriminating e-mails during his deposition, he was full of “I don’t recalls” and other evasive answers. And when asked to produce discovery responses regarding the amounts illegally spent, the responses were late, inconsistent, and incomprehensible. A couple of months after his deposition, he was gone.

At a minimum, I hope my lawsuit shed some light on this type of incompetence and encouraged the City to put somebody more qualified in his place. Hopefully, people will realize that one of the consequences of nepotism, favoritism, and other practices that prevent the most qualified people from getting hired, can be the loss of millions and millions of dollars of taxpayer money.

So when I hear that Dan Lindheim’s response to the report is that it contains “sensationalized findings reflecting actions of the prior administration" and that it “suffers from paying excessive attention to, and drawing too many of its recommendations from, a limited number of well-known but isolated cases,” all I can think is, the first step is recognizing that you have a problem. Otherwise, you’ll never get yourself out of the gutter. The City has a problem, and somebody needs to fix it. One of my all time favorite TV characters is Star Trek’s Captain Jean- Luc Picard, and his famous line, “Make it so.” We don’t need Dan Lindheim. We need Captain Picard.

Wednesday, October 21, 2009

Welcome To My Tea Party

So I know the new connotation of “tea party” conjures up images of Fox News-watching, Glenn Beck/Sarah Palin-loving, climate change denying extremists, who would never live in a place like Oakland. But after reviewing my recent property tax bill, I’m ready to have a “tea party” (taxes - enough - already!) of my own.

Measure Y contains a provision for a cost of living adjustment. Until this year, however, the Council never raised the tax (out of an acknowledgment that it was failing to fill the officer positions). In May, 2009, unbeknownst to me, the Council quietly approved an increase from $88.00 to $90.72. I was so shocked when I looked at my bill last week that I immediately did a web search to confirm that the increase had been legitimately approved. It had. But the Council should be ashamed of the increase, and the taxpayers should all be running to the next tea party. Police and fire are basic services that all cities should be able to provide their citizens, with existing tax revenue. I am now firmly convinced, after a year and half of immersing myself in Oakland’s dysfunctional and corrupt political machine, that we should never have approved Measure Y.

We Americans were all up in arms about the $600 toilet seat of 1983, and more recently, the jet rides to Congress by auto executives begging for bailout money, and millions of dollars in bonuses to executives of failed banks. Why not direct your outrage closer to home, where you are likely to bump into the Oakland City Council equivalent of former GM head Rick Wagoner at your local Whole Foods, picking up a pound of overpriced FairTrade coffee? “Government bailout” has a whole different meaning here in Oakland, where we, the citizens, are being asked to bail out our irresponsible government.

As a preliminary gesture of my outrage, last week I submitted my claim for a Measure Y tax refund to the Director of Finance, as permitted under Measure Y when a citizen believes that the tax is illegal. Given the City’s failure to appropriate sufficient funds to maintain the force at its authorized strength, as required by Measure Y, the continued collection of Measure Y is clearly illegal. The fact that the price just went up by another three dollars is just adding insult to injury. I invite you all to submit claims of your own, and let the tea party begin.

Sunday, October 11, 2009

Why Cut The Knot When You Can Untie It and Save the Rope?

I started this blog to try to prevent the type of misinformation and shallow analysis exemplified by Robert Gammon’s piece in yesterday’s East Bay Express. Maybe his system was down and he couldn't access it....

Mr. Gammon states, “The Oakland City Council has decided to appeal a judge's ruling that, if allowed to stand, would force the city to make at least $10 million in debilitating budget cuts or require the police department to assign rookie cops to key positions that they're not capable of handling.” That's just wrong. The City owes the money back, period. It can’t avoid paying the money back by assigning rookie cops to Measure Y positions. That doesn’t even make any sense. In addition, Gammon argues that “the council had no choice but to appeal the ruling…Either it would to have to repay the Measure Y account $10 million or more from the city's general fund and thus force Oakland to close libraries and further slash vital programs.” Wrong again. Apparently, Mr. Gammon doesn't know a lot about the legal system. The vast majority of cases get settled. This is what I’ve been trying to do with the City for, oh, let’s see now, over a year and half.

For those out there who may think my goal is to “close libraries and slash vital programs,” you probably also think our nuclear arsenal is for killing innocent children. No, it is for precisely the opposite.

Prior to the Council’s ill-conceived plan to approve the $7.7 million recruitment program, I wrote a long e-mail to the entire Council explaining the legal problems with it. I mentioned the possibility of litigation. It’s not like the City didn’t get that there were issues at the time. The City's own lawyers told the Council not to go ahead with the plan. The Measure Y Oversight Committee unanimously rejected it. But the Council approved it anyway, probably thinking I was just some “well meaning busy body with too much time on her hands” who was making empty threats. They should have checked my references.

From the beginning, I made numerous atempts to mediate or otherwise try to resolve the case. My overtures were rejected at every turn. The City would not give me the time of day. They just tried to wear me down, hoping I’d give up and go away. Again, they should have checked my references. To make a long story short, they did not actually agree to even meet with me until after I’d gotten the initial decision in my favor. And then, in the two short meetings we had, they still didn’t take my settlement position seriously. Now, I realize that at last week’s Council meeting, the Council had only two options: pay millions of dollars that they didn‘t have, or appeal. But that was only because they had spent the last six months sitting on their hands and doing NOTHING to explore the settlement options. My settlement proposal would not require the City to close any libraries or slash any vital services.

By the way, why is it that shallow minded politicians and hack columnists always make these sorts of claims? Why don’t they propose slashing the budget for Dellums’ limo driver? Or slashing his salary, given the fact that he does absolutely nothing? Why don’t they propose training for cops to avoid million dollar payouts when they shoot unarmed suspects in the back? Why don’t they read the grand jury reports condemning the out of control credit card and travel expenses? Why don’t they protest the fact that our City employees are among the highest paid in the state? Meter repairmen making $70,000? And what about the $17,000 catering expenses paid for out of Measure Y? I think there is fat to trim, and it isn’t in the area of “vital services.”

The cost of the City failing to come to the negotiating table sooner has been significant. I’ll estimate approximately $100,000 in attorney fees on each side, for a total of $200,000. The interest that will accumulate on the amount of money outstanding ($15 million) while the matter is pending on appeal I estimate at an additional $3 million. I’m filing a cross-appeal, and the City stands to lose another $20-60 million if I win on any of those claims. The City is gambling with your hard earned tax dollars.

Do I actually want to bankrupt the City? Of course not. But would anybody be paying attention to the blatant misuse of Measure Y funds if I hadn’t taken it this far? Would those PSO positions ever have been filled? People, we are five years into Measure Y, and we had a fully staffed police force for only a few brief months. It’s now below 802 and falling fast. Measure Y was a total RIP OFF. If people just sit there, the City will continue to take your money and waste it! Waste it! Hopefully I’m succeeding in drawing at least some attention to the financial mismanagement, incompetence and corruption of your elected leaders, so that they can be shamed into changing their practices, or will be voted out of office. Better yet, they'll come to the bargaining table and be willing to make good on the promises of Measure Y. Until then, I'll keep taking them, as well as irresponsible "journalists," to task.

Post script: After I formally requested a correction, and after having several discussions with Mr. Gammon and the East Bay Express editor, the post has been corrected.

Wednesday, October 7, 2009

City Council Announces Appeal of Measure Y Decision

Here's the press release I sent out today. More thoughts later.

Today the Oakland City Attorney’s office informed me that it would be filing a Notice of Appeal today, October 7, 2009, in the decision issued last spring by the Alameda Superior Court, Sacks v. City of Oakland. In that decision, the court found that the City had illegally spent millions of Measure Y dollars. The decision to appeal was authorized in yesterday’s closed session council meeting.

The underlying lawsuit was filed in April 2008, after the City Council voted to approve a $7.7 million “Augmented Recruitment Program” to attract and train new officers to fully staff Oakland’s police department. Because the City did not have the money available in its general fund, the City opted to take the money out of Measure Y, a special tax approved by voters in 2004 to fund 63 additional community policing officers. Because Measure Y taxes were never intended to pay for general police staffing functions (such as recruitment and academy training of non-Measure Y officers), and because of the City’s failure to implement numerous other aspects of Measure Y, including the conducting of annual audits, I sued, and ultimately prevailed.

Had the City not authorized the appeal, it would have had to immediately repay the Measure Y fund an estimated $15 million. This amount represents the money spent out of the augmented recruitment program, as well as the over $10 million in recruitment and training of non-Measure Y officers the City had spent previously. The City, which spent the majority of the last two council meetings dealing with citizen outrage over a mere $1 million in parking meter fees, was clearly unlikely to want to draw attention to the fact that, due to its own mismanagement and illegal actions, it actually still has another $15 million budget hole to address. Therefore, the decision is not unexpected.

The decision to appeal is clearly motivated by the City’s desire to delay payment of the monies owed (because it is broke) and to avoid additional scrutiny of its financial decisions. There are no valid legal grounds for appeal. Even the City’s own attorney, at the time the $7.7 million Augmented Recruitment Program was considered by the Council, had advised against the action, because the recruitment drive was not for Measure Y community policing officers, but rather was for general recruitment. I will argue that the City’s appeal is frivolous, and will also be filing a cross-appeal. If I prevail on my cross appeal, I estimate that the additional liability to the City could be approximately $60-$80 million. In addition, if the City loses its appeal, it will be liable for an estimated $3 million in interest, which accrues on the amount of money the Court has already ordered the City to repay.

The City's decision to appeal is extremely disappointing and represents a continued refusal by City officials to acknowledge their financial mismanagement and ongoing lack of commitment to legal obligations under Measure Y. The police force is currently approximately 7 officers under its authorized strength, and with no police academies scheduled or budgeted for, is likely to decline rapidly. Moreover, the City has never filled the six "Crime Reduction Team" positions required under Measure Y.

Monday, October 5, 2009

$17,000 In Measure Y Funds Used To Pay for Cops' Donuts

A while back I did a Public Records Requests to find out how much of the $7.7 million Augmented Recruitment Program money had actually been spent, and on what. As you already know if you've been following this blog, the ill-conceived, and patently illegal "Augmented Recruitment Program" was what got me to file my lawsuit in the first place, and all this money will have to be paid back to Measure Y from the general fund.

According to City records, the total spent to date is around $3.5 million. They ended up not spending the whole wad because they cancelled the last police academy. But that wasn't until they'd spent hundreds of thousands to recruit candidates for the police academy, who were then told Oakland didn't want them after all, since the department was (momentarily) overstaffed. A ton of your hard earned tax dollars, totally wasted.

Aside from telling me the actual amounts spent to date, another highlight of the records is that apparently $17,000 of Measure Y funds were spent at a place called the "Fountain Cafe" - a catering joint in Oakland. Now, the money may not actually have been spent on donuts. Maybe it was whole grain tabouli and hummus. And maybe it wasn't just cops eating the grub. I can't say for sure since they didn't give me any invoices. But what I can say is that I think it's outrageous that they're spending Measure Y funds on catered food! Particularly since none of the officers recruited were ever placed in Measure Y positions. And particularly considering how friggin broke the City is. And particularly considering how now the City is grabbing inside your pockets for spare change at parking kiosks.

Over at ABetterOakland.com, the debate has been raging on the parking meter increases, and some people can't seem to grasp the connection between public outrage over the meter changes, and general government waste. To make it simple: pay your meter, feed a cop (but not a Meaure Y cop!) a donut. Or some baba ganoush. Whatever. Get the picture?