You Can Fight City Hall - You Just Don't Always Win

Especially when City Hall relies on perjured testimony.

To say that I am disappointed with the Court of Appeal's ruling that was released over the weeekend would, of course, be a tremendous understatement. I don't know to what extent the City will try to play up this as a "victory," but if they do, I have this to say: Oaklanders paid $100 million in Measure Y funds and got the required police staffing for less than 6 months; by the time I sued in April of 2008, only half the promised "PSO" positions had been filled. And then they laid off all the new officers that they had hired with that money, essentially flushing millions of dollars of our special tax money down the toilet. If the City is proud of that track record, then that pretty much says it all.

In essence, what the court has held in this case is that taxpayer money does not need to be used on the subjects specified in the language of the parcel tax itself. Rather, it can be used on whatever the government wants to spend it on, just so long as doing so somehow indirectly contributes to the cause specified in the tax, even if the benefit is not worth nearly the amount of money the government actually took.

In case you don't remember, the main issue I sued over was the City's decision to take $7.7 million of Measure Y funds for generalized recruitment and training of non-Measure Y officers. The justification was that this would help realize one of Measure Y's goals of reaching an authorized strength of 802 officers. The real justification, of course, was that the City was broke, and Measure Y was flush. Never mind that it couldn't possibly cost $7.7 million to fill the remaining 30 Measure Y positions. And during the course of the litigation, it came out that the City had been spending millions of Measure Y funds on non-Measure Y officers prior to this plan, under the "40% formula." What this meant was that the City was subsidizing all hiring and recruiting costs with 40% from Measure Y, claiming that the deployment goal was 40% of the number of officers from every academy would be deployed to Measure Y positions. Except they weren't. Not even close. But the City kept helping itself to the money.

(By the way, some reports have implied that this case implicated taxpayer refunds, and just to clarify - taxpayer refunds were NOT in issue in my first lawsuit. They are, however, an issue in my second lawsuit).

Anyway, the trial court judge ruled that using Measure Y funds in this manner was illegal. In fact, he basically said that the rationale was illogical and defied common sense. But now an appellate court panel has disagreed. Unfortunately, the panel twisted some critical facts to reach the decision it wanted to reach, like the fact that the City wasn't even close to meeting the 40% formula. And the panel relied on clearly perjured testimony submitted by the City; testimony that claimed all of the funds taken would be used to hire Measure Y officers. And the panel completely glossed over the fact that the majority of the Measure Y positions went unfilled for years. Rather, the court focused on the City's logic in deploying veteran officers to Measure Y positions, and then filling the veteran officers' positions with the rookie cops. Now, that is no doubt a sound practice, and I never claimed it wasn't. The City claimed that it didn't want to immediately deploy the veteran officers to Measure Y positions because doing so would have a detrimental impact on their previous units, e.g. patrol. (Ironically, this is EXACTLY what the City has announced it will do in less than a month - it will take 63 officers from existing units, mostly patrol, and deploy them to Measure Y positions in the beginning of January, even though this will have a devastating impact on their previous units.)

Now, if the City had actually been complying with the 40% formula, we citizens would never have been the wiser. The reality is that the Measure Y positions were filled so slowly, or not at all, and when I started looking into it, I realized that this 40% formula was a total hoax. The appellate court panel says that refunds to the Measure Y fund were made to try to get things in line with the formula, but people, this is only after I sued them! So basically, what the court is saying is that if you are caught shoplifting, but then just put the merchandise back, no harm, no foul. I don't think so, Tim.

Conventional wisdom says, a person who represents himself in court has a fool for a client. But the reality is that when all this began, nobody else would have taken the City on. Regular people just don't have the money to hire lawyers to file this sort of litigation, and most lawyers are unwilling to take these cases on contingency. So it was me, or nobody. And I have to give profound thanks to David Stein, who has been helping on this case since I initially won in 2009; handling an appeal of this volume and complexity from my spare bedroom would not have been possible. Anyway, for the past nearly three years, I have alternatively felt like this is the most meaningful work I have ever done in my life, and the most worthless, because, despite all my efforts, police staffing is at the lowest it has ever been, Measure BB passed, public safety is more severely compromised than ever, and accountability has not noticeably improved. Or maybe, it has. After all, I have forced them to shuffle quite a bit of money around, although I still think that's akin to making a shoplifter put the Tiffany bracelet back in the case.

But for now, I'm going to focus on the few words of the decision that keep me going: "We neither intend to denigrate petitioner's motives nor suggest that her commendable efforts failed to have any impact. We realize that petitioner's action may have induced and compelled the City to comply with Measure Y - or at least do so with greater haste, and with audit procedures that facilitate more transparency - and for that reason the residents of the City have cause to be appreciative of her litigation."

The decision is a precedential, published decision. That means it is much more likely that the Supreme Court would review the decision at the next level. In addition, I still have my second lawsuit pending, so the fight is not over yet. I should also point out that there is language in the Appellate Court's decision that is actually quite helpful to my second lawsuit, which involves the City's failure to "appropriate" sufficient funds for police academies. The City claims that it actually did appropriate some money (about 1/5 of what it admits was necessary) and that anyway, they don't need to appropriate for academies. But the Court's recent decision says..."the directive to hire and maintain is quite broad in its reach. The maintenance aspect of Measure Y cannot be ignored...The City must not only recruit and employ the requisite number of neighborhood beat officers, but is further obligated by the language of the ordinance to appropriately sustain the force to promote the underlying public safety objective...To us, recruiting and training officers is an essential aspect of the mandate in the ordinance to 'hire and maintain.'" Well, if the City has deliberately failed to "appropriate" or spend sufficient funds for police academies, and deliberately allowed the force to drop through attrition, then it isn't adhering to the above mandate, is it? Stay tuned.