Will The PEC Support Open Government And Accountability?

Or will it support lazy government bureaucrats who choose to put their effort into stymieing citizen watchdogs? Find out on April 7, 2010, when the PEC will consider my complaint involving 13 - count ‘em - 13 separate violations of the California Public Records Act and Oakland’s Sunshine Ordinance. As you will see from the Executive Director’s Report, which you can find here http://www.oaklandnet.com/government/public_ethics/April-1-2010/4-7-10%20Agenda.pdf
he was forced to concede that the City had continuously violated the law. For once, a complaint that Mr. Purnell has not recommended dismissing!

But the tone of his report is exceedingly disappointing. Rather than condemn the City for its abysmal track record in making records available to the public, he tries to characterize me as litigious troublemaker who is just taking up too much of the City’s time. Shame on him. But I guess as a government bureaucrat himself, whose time I have admittedly eaten up, that’s where his sympathies are going to lie. Of course a natural solution to the problem would be for the City to start complying with the law - Measure Y and the CPRA - and then I wouldn’t need to propound all these pesky records requests and file all these pesky legal complaints. Too obvious, I know. Why comply with the law when you can steal and waste millions of taxpayer dollars, not to mention employee and concerned taxpayer time?

Anyway, here’s my brief in response to Mr. Purnell’s report. Stay tuned for how the PEC and the City respond.

I. Introduction

The complaint at issue involves a total of 13 separate public records requests, filed pursuant to the California Public Records Act ("CPRA") and Oakland's Sunshine Ordinance, over the course of approximately one year. As indicated in the Executive Director's report, the City has continously and consistently violated the CPRA by depriving me of timely and actual access to public documents. The requests for documents were submitted against the background of my previous lawsuit against the City of Oakland, regarding numerous violations of Measure Y, a parcel tax that promised voters an expanded police force and accountability, but did not deliver the promised officers or the promised accountability. The past lawsuit involved, among other things, approximately $15 million in misspent taxpayer funds, not a minor or trivial amount. I filed the lawsuit to help improve both public safety and public accountability, and ultimately prevailed in on the pivotal claims. I filed the public records requests in the aftermath of the lawsuit in an effort to continue to monitor compliance with Measure Y, and ultimately, have discovered through the public records at issue, that the City has or intends to illegally collect an additional $40 million in Measure Y funds, and has committed numerous other abuses. Therefore, the issues involved are not simply minor, procedural violations, as implied in the Executive Director's report. Rather, they go to the very heart of why it is so important for the public to have access to these sorts of documents.

As a lawyer and litigator well versed in the CPRA and other aspects of public entity law, I aggressively followed up with the City each and every time the City failed to file a procedurally timely, or substantively comprehensive response. I was shocked that, given my background, and the fact that I had already once successfully sued the City, the City to cavalierly failed to comply with the most fundamental aspects of open government laws. It is imperative that every citizen have ready access to public documents, without the need for the type of perseverence that only an experienced litigator is likley to possess. That is the purpose of the CRPA and Oakland's Sunshine Ordinance. I previously requested mediation of this complaint, to which the City reluctantly agreed to, in part only. Even after filing this complaint, the City continued to routinely fail to comply with those laws, and there were a substantial number of documents that I did not receive until after our mediation.

Article II of the PEC’s Bylaws provide that its mission is “To Promote the Highest Confidence in the Ethics of the Government of the City of Oakland.” The “Mission Statement” provides further that: “In order to fulfill this mission, the Public Ethics Commission shall:

1. Encourage full participation in government by heightening awareness of the rights of the public to information about their city government;

2. Facilitate access to such information and meetings of public bodies in the City of Oakland;

3. Help ensure that city officials, employees, boards and commissions, candidates and other persons understand their obligations with respect to state and local laws that are intended to assure fairness, openness, honesty and integrity in government; exercise independent oversight over compliance with applicable state and local laws;

4. Make recommendations to the City Council to improve the implementation of the applicable laws and promote ethics compliance.”

Therefore, my complaints involve the most fundamental rights that the PEC was created to protect. My goal in filing this complaint is for the City to openly commit to improving its compliance with the CPRA, and work with me, in mediation, to develop mutually agreeable procedures to ensure compliance with the law. I have provided Mr. Purnell with fairly detailed proposals in this regard. If the City is unwilling to mediate, or unwilling to develop procedures to ensure legal compliance, then I wish to have a full hearing on this matter.

II. Factual Background

In November, 2004, Oakland voters approved Measure Y, which consisted largely of an $88.00 parcel tax, generating approximately $20 million a year. The majority of the funding was supposed to augment the police force with an additional 63 police officers. Following the passage of Measure Y, instead of the police force increasing in size, the police force plummeted. At around that time, my normally safe neighborhood experienced a rash of armed robberies. One of my neighbors two doors away from me was brutally mugged while getting out of his car one night. In response to the rash of robberies, I made efforts to contact our “problem solving officer,“ only to find out, he had never been hired. I organized a neighborhood meeting and asked our City Council representative, and the police department, to respond to our concerns. They offered little comfort.

In March, 2008, the Mayor proposed, and the Oakland City Council approved an “Augmented Recruitment Program,“ under which the City would take $7.7 million in Measure Y funds, and spend the money on generalized recruitment and training for new police officers. None of those police officers were ever placed, or intended to be placed in Measure Y positions. I had supported Measure Y, and to that point, had been extremely disappointed in its implementation, since very few of the promised “problem solving officers” had been deployed. When I learned of the proposed “Recruitment Program,” I immediately wrote to the Council and high level officials advising them that I believed the plan was illegal. I knew it was illegal based on my background as a litigator who had, previously litigated two cases involving appropriate use of parcel tax or bond funds on behalf of public entities. Despite my pleas, the Council passed the resolution anyway. I then filed suit regarding the misuse of Measure Y funds, among other things. I represented myself, and litigated the case in my spare time. (I have a full time job with a law firm).

Last year, I prevailed in the Superior Court with respect to my claims that the Recruitment Program was illegal, and that the City had illegally spent approximately $15 million of Measure Y funds. I also proved that the City had failed to conduct necessary audits. The City has appealed that decision, likely because it does not have the funds to repay to Measure Y. In the meantime, I have continued to monitor the City’s compliance with respect to Measure Y, largely by the use of public records requests. As detailed in the Executive Director’s Report, the City has rarely complied with the procedural requirements of the CPRA. At times, it has failed to comply entirely with the substantive requirements.

As described in the Executive Director’s Report, I requested that the matter be mediated, and a mediation was held on November 6, 2009. What Mr. Purnell does not mention, however, is that I repeatedly requested that we mediate not only the individual record disputes, but rather proposed remedies to my ongoing difficulty in obtaining records and timely responses to records. Specifically, I wanted to be able to discuss with the City Attorney’s office, and Oakland officials, the root causes for its failure to comply with the law, and work collaboratively to develop procedures that would minimize future legal violations. The City never expressed any interest in discussing the matter. Indeed, at one point I became so frustrated with the ongoing violations that I actually called City Attorney John Russo himself to discuss the matter. The conversation went nowhere.

Despite the City’s recalcitrance in providing records, it became apparent that the City’s violations of Measure Y were continuing unabated. The most serious violation has been the City’s failure to budget and authorize police academies, causing the police force to drop well below the authorized strength of 803. The failure to budget for and actually conduct police academies will result in the police force dropping to approximately 755 by the end of the year (according to the City’s own documents), and will likely drop to 715 by the time any new academy recruits are actually put into position. (This is taking into consideration of four officers per month, and the fact that the academy plus field training takes approximately 10 months). This will have a calamitous impact on public safety, and is an utter betrayal of the taxpayers, who were promised an expanded police force in exchange for their tax dollars. In light of this obvious violation of Measure Y, and other related violations, including continuous violations of the CPRA, I filed suit yet again, on March 18, 2010.

III. Legal Argument


Over the past two years, I have been personally contacted and received phone calls and emails from my fellow citizens and taxpayers who are extremely appreciative for the time and effort I have devoted to trying to improve public accountability and public safety in Oakland. That, after all, is my goal. But against the factual backdrop described above, Mr. Purnell implies that I am a nothing more than a litigious troublemaker who is wasting the City’s valuable time and resources with “minor, procedural infractions.” He states that I have made “multiple demands” on the City and have “unquestionably taxed the City’s ability to produce and monitor the production of records.” These assertions are entirely unsupported by any facts uncovered in his investigation. On the contrary, there is no indication that City representatives were ever asked why they failed to comply with the CPRA, either procedurally, or substantively. Propounding approximately one public record request a month, particularly when the requests are specific and discrete, should not overly “tax” City staff. Moreover, a "good government" advocate should not have any less access to documents than the Oakland Tribune, which presumably submits as many, if not more, records requests every year. To consider the violations as trivial and inconsequential is counter to the purpose of the CPRA the and PEC‘s mission statement, as well as the goals that I am trying to achieve, as described below.

A. The Purpose of The California Public Records Act Is To Ensure Open Access To Government Records, To Facilitate Accountability

The California Public Records Act (California Government Code §§ 6250 through 6276.48) mandates disclosure of governmental records to the public upon request, unless there is a specific reason not to do so.

When the legislature enacted CPRA, it expressly declared that "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." Cal. Gov't Code § 6250. Indeed, in California "access to government records has been deemed a fundamental interest of citizenship" and has emphasized that "maximum disclosure of the conduct of governmental operations [is] to be promoted by the act." CBS v. Block, 42 Cal. 3d 646, 651-652 n.5, 230 (1986). By promoting prompt public access to government records, the CPRA is "intended to safeguard the accountability of government to the public." Register Div. of Freedom Newspapers Inc. v. County of Orange, 158 Cal. App. 3d 893, 901, 205 Cal. Rptr. 92 (1984). As the California Supreme Court recognized in CBS v. Block:

“Implicit in a democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.” Id. at 651.

The public’s right to access governmental records is now enshrined in the California Constitution, following the passage of Proposition 59, the “Sunshine Amendment.“ In advocating for the passage of Proposition 59, supporters stated in the voter information guide: “Proposition 59 is about open and responsible government. A government that can hide what it does will never be accountable to the public it is supposed to serve. We need to know what the government is doing and how decisions are made in order to make the government work for us. Everyone needs access to information from the government.” One of the authors providing the “Rebuttal” to the argument against Proposition 59 was none other than our own City Attorney, John Russo, who wrote: “….Proposition 59 will add independent force to the state's laws requiring government transparency. It will create a window on how all public bodies and officials conduct the public's business, for well or ill, while sparing the dignity and reputations of ordinary people, public employees, and even high officials who have done nothing to merit public censure or concern.”

Mr. Russo also proudly takes credit for creating Oakland’s own Sunshine Ordinance, which requires (on paper only, apparently) even more prompt and detailed responses to records requests. In Oakland’s “Open Government Guide,“ he proclaims: “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. That’s why I created the ‘Open Government Program’ in the Office of the City Attorney.” Ironically, it is now Oakland, the City Mr. Russo represents, and his own office, that are openly working against public access to records.

In reviewing the City’s violations, the following specific provisions of the CPRA should be kept in mind:

6253.1.

(a) When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:

(1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.

(2) Describe the information technology and physical location in which the records exist.

(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.

6253. (c) Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor. In unusual circumstances, the time limit prescribed in this section may be extended by written notice by the head of the agency or his or her designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension for more than 14 days. When the agency dispatches the determination, and if the agency determines that the request seeks disclosable public records, the agency shall state the estimated date and time when the records will be made available. As used in this section, "unusual circumstances" means the following, but only to the extent reasonably necessary to the proper processing of the particular request:

(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.

(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.

(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.

(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.

(d) Nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records. The notification of denial of any request for records required by Section 6255 shall set forth the names and titles or positions of each person responsible for the denial.

B. The City Has Repeatedly Violated The CPRA and Oakland Sunshine Ordinance, Without Explanation

As detailed in Mr. Purnell’s report, the City has continually violated the procedural provisions of the CPRA, and on several occasions, the substantive provisions as well. The violations are not trivial or without consequence. There is no indication that the reason the City failed to comply with the law is that my requests were overly burdensome or time consuming. The law specifically requires that the public entity respond within 10 days. A failure to comply with mandatory timelines is not trivial. Indeed, failure to comply with “procedural” requirements can have dire consequences. Missing a statute of limitations by one day alone can prove fatal to a case.

I should emphasize that if the problem were the City missing the deadline by one of two days, I would not be making such an issue out of this. The problem is that the City continually appears to ignore my requests to the point that I need to nag them and hound them in order to get any sort of response at all. This is neither minor nor trivial. When the City takes months to provide a response, which by law only should take 10 days, the statute of limitations at issue in any potential lawsuit I may bring could be affected. Taxpayer rights could be affected. People’s lives and personal safety could be affected. In addition, I must spend hours of my time making phone calls and sending emails, and filing complaints such as this, in order to get the documents I am entitled to. It is my rights, and the rights of the public at large, that are at the heart of the CPRA and the PEC’s mission.

I am an experienced litigator with expertise in the CPRA, who has already won one of the biggest lawsuits in Oakland’s history. I would expect the City to bend over backwards to comply with my requests. Strangely, my requests are regularly ignored. I shudder to think how ordinary citizens, who lack the legal expertise and persistence that I do, are treated. The purpose of the CPRA is to entitle all citizens, not just aggressive lawyers who are willing to pursue litigation, to responsive documents. If open government is to have any meaning at all in Oakland, the City must demonstrate a commitment to following both the procedural and substantive requirements of the law, and it has not.

Mr. Purnell implies that the reason for the City’s failure to comply must be that I am just asking for too much information. But his investigation is devoid of any information that indicates he ever even asked the City why they continually violate the law. First of all, preparing a response (which can be as simple as an email) within 10 days, acknowledging receipt of my request, and a statement as to when responsive documents can be made available, takes virtually no effort at all. To imply that preparing a 10 day letter is overly burdensome is positively ludicrous. The fact of the matter is that the City simply has no system, or an entirely ineffective system, for intake of requests, and calendaring of responses.

C. Analysis of Individual Requests


1. Request #1 and # 3 Dated March 31, 2009/Amendment dated May 6, 2009: Mr. Purnell concludes that the City failed to provide a 10-day letter with respect to my May 6 request, and provided no responsive documents until after the November 6, 2009 mediation. The redactions to the responses were not properly footnoted, as required by Oakland’s Sunshine Ordinance. No explanation was provided by the City for the violation. This constitutes a violation of Govt. Code 6253(c) and the City’s Sunshine Ordinance.

2. Request # 4 July 29, 2009: I was promised responsive documents by August 21, 2009. However, the response referred to attachments that were not provided. Therefore, not all documents were actually provided by the promised date, without explanation. I did not get all the records I was entitled to until after the November 6, 2009 mediation; redactions were provided without the required footnotes. This constituted a violation of Government Code section 6253(d).

3. Request # 5 dated August 10, 2009: My original request for records was sent on August 3, 2009. I received no response until August 31, 2009, and this response failed to comply with the 10 day response requirement. I did not receive responsive documents until September 21, 2009. This constitutes a violation of not only the 10 day rule (Government Code section 6253(c)) and (d), as well as Govt. Code Section 6253.1. (Public agency must assist in complying with records; request; must not cause delay).

4. Request # 6 dated August 18, 2009: My request was dated August 18, 2009. I received no response whatsoever until September 12, 2009, a clear violation of the 10-day requirement. No records were produced until after the November mediation. This constitutes a violation of the 10-day requirement (Govt. Code Section 6253(c)) as well as Government Code 6253(d).

5. Request # 7 dated August 28, 2009: My request was dated August 28, 2009, 2009. I never received a response in conformity with the Government Code. If it was determined that an exception to the CPRA applied, the City was obligated to provide a legal citation, and a determination that no records could be produced. Instead, the City Administrator designee in charge of Measure Y, and one of parties directly responsible for the violations leading to my litigation, unilaterally decided that I was not going to get the personal email addresses of MYOC members. There is no indication he ever consulted with the City Attorney’s office or had any legal justification for withholding the addresses. No justification was ever provided for providing a “fake” email address. There is no California law whatsoever that would justify withholding an email address. Here, the City violated the 10-day requirement (Govt. Code 6253(c)), as well as substantive provisions of the CPRA requiring disclosure.

6. Request # 8 dated November 25, 2008/Amendment dated December 9, 2009: The City failed to comply with the 10-day response requirement. I received no documents until more than a month later. This constituted a violation of Government Code 5263(c) and (d).

7. Request # 9 dated September 22, 2009: I received no response until October 6, 2009, in violation of the 10-day requirement. Not all responsive documents were produced., Indeed, I received no letter actually complying with the 10-day requirement (I.e. identifying which documents would be produced and when). I did not receive all responsive documents until after the November medication. Mr. Purnell’s report indicated that the City provided responses between September 23 and September 30, 2009. This is incorrect. I have no record of receiving any response until October 6. Only with Mr. Purnell’s intervention, after the mediation, did I receive substantive documentation regarding Measure Y funds and the fire department. This constitutes a violation of the 10-day requirement (Government Code section 5263(c)) and (d) (unnecessary delay),

8. Request # 10 dated October 1, 2009: I received no response until October 13, after the 10 days had expired. Moreover, the response did not contain the information required by the Government Code (e.g. which documents would be produced and when). I did not receive any responsive documents until well after the agreed upon date set in mediation. This was a violation of the agreements reached in mediation, as well as Government Code Section 6253(c) and (d).

9. Request # 11 dated October 18, 2009: While I did receive a letter within the 10 day timelines, I was told to pay over $1000 in order to obtain basic payroll information. Government Code section 6253.1 requires the City to provide assistance to me obtaining the information I am seeking. In the end, the City finally revealed that the officers whose data I was seeking had not been assigned to “desk duty,” obviating my need for records. The City simply could have advised me of this fact without trying to charge me $1000. There is no indication that Mr. Purnell made any effort to verify that this charge would have been necessary in order to “extract” the data.

10. Request # 12 dated December 4, 2009: While I did receive a response within the 10 day timelines, I received no records whatsoever on the date promised (December 23, 2009), nor an explanation for the delay. I received some, but not all responsive documents on January 1, 2010. Follow up email inquiries were never responded to. Only with Mr. Purnell’s intervention did I finally receive responsive documents. This constitutes a violation of Govt. Code section 6253(c) and (d).

11. Request # 13 dated February 5, 2010/Amendment dated February 8, 2010: My request involved a salary survey, for which the City paid $113,000. (It was authorized to spend only $100,000). I never received a document that would comply with the 10-day response requirements. While I did receive some related documents (e.g. the resolution authorizing the survey) between February 5 and February 9. However, contrary to Mr. Purnell’s assertions, I never received most of the documents I requested, nor a 10-day letter advising that responsive documents did not exist. Specifically, I never received the salary survey itself! I spoke to Mr. Morodomi about the matter, and he confirmed that the City could not locate it. I suggested he contact the consultant who prepared the survey, to get a copy, and he agreed that was a good idea. I never heard back from him! In addition, I never received any documents related to how the consultant was chosen, and other documents responsive to my February 8 request. Nor did I receive any explanation as to why I never received any responsive documents.

Mr. Purnell’s assertion that I receive “the majority of the requested records within three or four days” is patently false, and demonstrates his tendency to apologize unnecessarily for the City’s most egregious errors. Here, the City has apparently LOST a survey that cost $113,000! Worse yet, the City apparently never made any effort to present the survey to the Council! If this is the case, then the City was obligated to provide a 10-day response indicating that “no responsive documents exists” with respect to the category of records related to information as to when the consultant’s report was presented to the Council. The City was also legally obligated to try to obtain a copy (Govt. Code Seciton 6353.1), particularly after Mr. Morodomi said he was going to try to do this. The fact that the City would not try to obtain a copy of a document that cost $113,000 is positively shocking. The City clearly violated Govt. Code Sections 6353.1, 6253(c) and (d). To date, I have not received most of the records I requested. I am specifically requesting that the City immediately provide responsive documents.

D. The Commission Should Not Rely On the City Attorney For Legal Guidance With Respect To This Matter

Article V of the PEC Bylaws provides in relevant part:

“Section 2: Legal Advisor
The City Attorney is the Commission's legal Advisor. The City Attorney shall provide the Commission with legal assistance, to the extent such assistance does not constitute a conflict of interest…..”

Several times, in writing, I have advised Mr. Purnell that it would be inappropriate for the Commission to rely on the City Attorney to provide legal assistance with respect to this complaint. I have made clear that I believe that the City Attorney’s Office is one of the main culprits in depriving me of access to responsive documents. The City Attorney’s represented the City in my initial Measure Y lawsuit, and now, in my second lawsuit as well. The City Attorney’s Office has never provided any explanation or excuse as to its and its client’s continuing violations of law, for the failure to have any procedures in place to ensure proper calendaring and prompt and thorough responses. The City Attorney’s Office has refused to mediate regarding implementing corrective measures to these ongoing problems. The City Attorney’s Office is, therefore, a big part of the problem. It is also the official legal counsel to the PEC, and in this case, that is a clear conflict of interest.

IV. Conclusion

As stated above, my desired resolution to this Complaint is to achieve a mediated settlement with the City, whereby the City acknowledges its past failures and commits to implementing policies and procedures that will ensure full compliance with the law. To date, the City has refused to offer any explanation for its past failures, or to meet with me to discuss how the City can improve compliance. However, I am hopeful that the City will recognize, particularly in light of my most recent lawsuit, that the problems are serious, ongoing, and must be resolved. I would much prefer to have the issues resolved in this manner, rather than have to litigate them. Litigation is time consuming and expensive, for both sides. If this matter were to continue to hearing and the City were to lose (which it assuredly would, given the lack of dispute as to the violations) it would have to pay for its own attorney time, as well as my attorney fees. I have no interest in wasting the City’s time and money. Therefore, I ask the PEC to issue in order finding that there is substantial evidence of continuing violations of the CPRA, ordering the City to participate in mediation, and to produce mutually agreeable policies and procedures to ensure compliance with the CPRA and Oakland Sunshine Ordinance no later than August 31, 2010. If the parties are unsuccessful in mediation, or if the City refuses to mediate, then I request that the matter be scheduled for hearing.

Celebrating the Two Year Anniversary of My Measure Y Litigation - By Filing Suit Again

Two years ago, I sued the City for violations of Measure Y. Yesterday, I sued the City again. I was hoping it wouldn’t come to this, but I came to the realization that I had no other choice. Since I won the first suit, the City has continued to violate Measure Y, and the violations were becoming more egregious than ever. Apparently losing a $15 million lawsuit to a private citizen who litigated the case in her spare time was not sufficiently embarrassing to any of them to wake up and smell the coffee. Hopefully, pouring the steaming pot of hot coffee all over them will get their attention.

At issue in this current suit is potentially $40 million that the City stands to lose - and I mean, really lose. The $15 million from the previous suit just has to be transferred from the General Fund to the Measure Y fund. The City isn’t technically out any money at all - except for all the money it wasted in the process, of course. But in the current suit, my main claim is that the City is not legally permitted to even collect Measure Y taxes in 2009/10, because it did not “appropriate” sufficient funding to maintain a baseline of 739 offices. By not budgeting for or holding academies, the City knew the force would drop by around 4-5 officers every month, and they just let that happen. The language in Measure Y was put in specifically to prevent this from happening. But it has happened, and it will happen again in 2010/11 as well, because there is no way that the City will be able to get the force back up to 803 before July 1, 2010. That’s what they would technically have to do to be able to collect the tax in the next fiscal year.

I’m sure that some people will think to themselves, oh Marleen, how can you do this, the City is so broke, they really need the money now, more than ever. Well, it’s not like I don’t see the point of that argument. I’ve thought about it long and hard. And I’ve really tried to work with the City officials to get them to understand that they need to comply with the law and fix the problems. I told them point blank, over and over, that unless they came up with a plan to address all of this, I’d sue them again. So they can’t claim they didn’t see it coming. They just sat there and let it happen. To themselves. To you. To me. To all of us. We put them in office to run this City - to employ a police force, to ensure accountability. And they’re not doing that - they’re not doing ANY of that. So what are we supposed to do - just sit back and watch while they do nothing? While they continue to violate the law with impunity? While every day, with our diminishing police force, more people are murdered, raped, robbed, and otherwise victimized? Not if I can help it.

We voted for Measure Y to ensure a police force of 803 officers. That’s what we were told. More than five years later, into a 10 year measure, the force is at around 770, and will drop to below where it was prior to Measure Y in a matter of months. The City gets $20 million, and we get - nothing. We got the promised staffing for less than six months. What a rip off. And let me tell you, that’s just the tip of the iceberg. Over the past two years of litigation and meetings and public records requests and what have you, the level of incompetence and mismanagement and lack of accountability that I have seen in our City is just astounding. Mind boggling. Maybe the City really does need to be threatened with bankruptcy, by a lone citizen, to come to its senses. I hope it doesn’t come to that. But in the meantime, the fight is on.

Second Lawsuit To Be Filed March 18

Here's the press release I just sent out. More to follow soon.

After having prevailed in her initial lawsuit against the City of Oakland last summer, on March 18, 2010 Oakland resident and attorney Marleen Sacks will file a second lawsuit against the City for failing to properly implement Measure Y, a 2004 measure that generates approximately $20 million annually for public safety.

Measure Y was supposed to fund 63 additional officers over and above the 739 officer authorized strength that existed in 2004, when the Measure first passed. In order to collect the tax, Measure Y requires that the City, at a minimum, budget sufficient funds to maintain that 739 authorized strength (not including the 63 Measure Y officers). The City has failed to appropriate the required funds. Therefore, according to this most recent suit, collection of the tax for the 09/10 fiscal year is illegal. Specifically, Ms. Sacks alleges that because the City has failed to budget for or conduct any police academies since the end of 2008, attrition of approximately four officers per month has resulted in police staffing dropping to approximately 770 officers total, down from a brief high of over 830 officers. The decision to cancel the previous academy, and not schedule any new academies, was apparently based on budget considerations. However, failing to budget for academies means that the City failed to appropriate the necessary funding required by Measure Y, and therefore, according to this suit, collection of the tax was illegal.

The lawsuit alleges numerous other violations of Measure Y and related illegalities, including the City’s failure to assign dedicated “problem solving officers” to each beat, awarding grants to violence prevention programs in violation of competitive bidding requirements, awarding grants not authorized by Measure Y, and failure to comply with the California Public Records Act.

According to Ms. Sacks, the decision to file a second lawsuit was not easy. She had hoped that the City would be willing to engage in meaningful settlement discussions, and that the City would be interested in honoring the commitments of Measure Y. However, after numerous months, it is evident that settlement is not currently a viable option. The City already owes the Measure Y fund approximately $15 million for illegal expenditures at issue in the previous suit. While the City has appealed that ruling, Ms. Sacks has filed a cross-appeal, and the total amount at issue from her 2008 suit is estimated at around $60-$80 million. At issue in this current suit is the $20 million to be collected during 2010, which Ms. Sacks alleges should be repaid to the taxpayers, or enjoined from being collected in the future, and several million dollars in violence prevention funds that were illegally spent or distributed.

On the City’s own Measure Y website, the City claims that “the City will maintain a baseline of 739 police officers in addition to the 63 new officers.” During Ms. Sacks’ previous litigation, the City claimed that it was not actually required to employ 739 officers; rather, it was required only to “appropriate” sufficient funding for those officers. However, given the City’s abject failure to schedule any academies to replace officers as they resign or retire, the City has clearly failed to do not even that, making collection of the tax illegal.



“The City’s refusal to conduct necessary academies is particularly offensive given the continuing level of crime in Oakland. We have a new police chief who has publicly decried the lack of adequate staffing, and yet, the City has refused to give him the means to address that problem. It is shocking to me that after the City lost my first Measure Y lawsuit, the City would so blatantly violate Measure Y in this manner. I have brought my concerns to City officials on numerous occasions, and made it clear to them that if the issues were not resolved, that I would sue again. The City has betrayed the trust of the taxpayers, over and over again, and continues to refuse to honor the commitments of Measure Y. In light of the continued abuses, I felt I had no option but to file another lawsuit.”

Fun and Games At The Public Ethics Commission Meeting

The complaints against Jean Quan and Don Perata for using taxpayer money for political purposes were lots of fun to listen to, but if you tuned out before my complaint got heard, you missed out. Actually, I found the meeting kind of encouraging, because it sounded like at least some members heard the message that dismissing complaints en masse, which has been the past practice, even when the complaints raise legitimate issues, does not serve the PEC’s mission. In particular, some of us spoke about the need for the PEC to take the opportunity to at a minimum, “create a record” about the issues raised, even if they may not rise to the level of requiring a full blown hearing, and using the complaint as a “teachable moment” for City officials and others who have clearly offended others, if not outright broken laws.

In my previous post, I pointed out that my complaint about members of the MYOC not having to file conflict of interest disclosure statements got dismissed, even though it was clear the MYOC had been erroneously omitted from the list of commissions required to file such statements for five years, and even though the City has now agreed to add them. My issue with the dismissal letter was that it was based on a superficial investigation - what appeared to be one short interview with Jeff Baker, the Measure Y administrator. Ultimately, the PEC agreed that Executive Director Dan Purnell needed to do a more thorough investigation. That means lots more work for him, which I’m sure he’s not thrilled about, but even more outraged with me was Mr. Baker, whose credibility I had questioned. In my previous litigation, he claimed the required Measure Y audits had been done. They had never been done, and I proved that in court. That’s dishonest, and I didn't think Mr. Purnell should have taken his statements at face value.

Mr. Baker, apparently a loyal reader of this blog, or else otherwise clued in to my statements, appeared at the hearing to defend his honor, and made a fool of himself in the process. He tried to claim that compliance with the audits was not his responsibility. That’s right, blame one of your colleagues. Smooth move. Like that makes it okay. He’s the one in charge of Measure Y. Just where is the buck supposed to stop? And besides, his competence, and honesty, were not the subject matter of the hearing. But then it got worse, when twice, he stepped away from the podium, glared at me, and spat out the words, “Shameful, shameful! You’ve got a lot of nerve!”

Well, yes, as a matter of fact I do. Suing the City as a private citizen and defending the rights of my fellow taxpayers and two years of nagging and haranguing for accountability and legal compliance does indeed take a lot of nerve. But Mr. Baker did not mean to commend me. He meant to intimidate me. And that, gentle readers, is a violation of the “Code of Conduct” (which I wrote about in my previous post). It requires City employees to be “courteous” to members of the public. I have every right to voice my criticism of City policies, as well as City employees. I don’t expect them to like it, or to like me, but they can’t try to intimidate me or retaliate against me when I do it. Imagine what would happen if a police officer engaged in such conduct against a citizen filing an IA complaint? He’d be disciplined for it! So, that was quite enough drama for one evening. Stay tuned for the results from my next PEC complaint regarding the City’s abysmal compliance with the California Public Records Act!