For Immediate Release
Date: April 28,, 2010
Oakland resident and local attorney Marleen L. Sacks filed a motion for preliminary injunction on April 28, 2010, to prevent the City of Oakland from collecting $20 Million in annual Measure Y taxes.
In 2004 Oakland voters passed Measure Y, a public safety parcel tax. Under Measure Y, the City of Oakland collects approximately $20 million a year in revenues to provide additional community police officers and violence prevention programs. Funding for Measure Y is primarily from a residential parcel tax that the Oakland City Council recently increased to more than $90 per parcel. A parking tax provides additional Measure Y funds.
Last year, in ruling on another suit brought by Ms. Sacks, Alameda County Superior Court Judge Frank Roesch found that the City illegally spent approximately $15 million of Measure Y funds, and failed to conduct mandatory audits. Last month, Ms. Sacks sued again, with the assistance of local attorney David A. Stein of Donahue Gallagher Woods LLP, citing numerous additional violations of Measure Y, including the City's failure to appropriate sufficient funding to maintain a baseline number of officers.
Measure Y prohibits tax collection unless the City "appropriates" sufficient funding (from the general fund) to maintain baseline staffing. Before the passage of Measure Y, City representatives promised taxpayers that the City would not collect the tax unless the it actually maintained minimum staffing. However, in two previous lawsuits, the City asserted that it did not have to actually employ the officers, so long as the funds were “appropriated” in the budget. The motion before the Court contends that the City isn’t even meeting its own standard, because it has failed to "appropriate" any funding for a full police academy, and the size of the force is dropping dramatically as a result.
The City has conducted no full police academies since 2008, and the police force is currently approximately 33 officers below what was promised under Measure Y. Due to claimed budget problems, the City cancelled the last full academy in November, 2008, and saved $4.5 million. However, Ms. Sacks claims that this decision was illegal, since it violates the requirement that the City, at a bare minimum, "appropriate" sufficient funding to maintain baseline staffing. No full academies have been budgeted or scheduled. Because the City loses 4 to 5 police officers per month through attrition, by June 30, 2010, staffing could drop below 750, and would likely drop to around 715 before any new academy graduates are ready to be deployed.
"This is precisely the sort of situation that the City promised the voters would not and could not happen under Measure Y. The City cannot justify continued collection of the tax under these circumstances. The City didn’t appropriate for academies. It didn’t appropriate to maintain the required number of police officers. The City is collecting the tax and not providing the service. This is a betrayal of the promises made to the taxpayers, and it is having a tremendously detrimental impact on public safety," stated Sacks.
The motion being filed on Wednesday is asking the Alameda Superior Court to prohibit any further collection of Measure Y taxes until the case goes to trial, which could take several months. The amounts at issue therefore include whatever property taxes have not yet been collected for the 09/10 fiscal year, as well as an additional $20 million for the 10/11 fiscal year. Sacks added: "I sincerely hope that our elected representatives will realize that they need to immediately budget for and schedule a new, full police academy. We need to support our Police Chief by giving him the support he needs. As the horrific recent murder in dwntown Oakland and other tragedies remind us on a daily basis, our crime problem is at a critical point and tearing at the hearts of all of us. We voted to pay additional taxes to make the City we love safer. The City needs to do its part and live up to its promises.”
A hearing on the motion is scheduled for May 27, 2010 at 9:00 a.m. in Dept. 31 of the Alameda County Superior Court.
Wednesday, April 28, 2010
Sunday, April 25, 2010
Mr. Dellums, I'm So Not Over It
On Friday, the Chronicle ran a story about Mayor Ron Dellums’ response to a state audit that revealed that Oakland had misspent hundreds of thousands of dollars of federal stimulus money. Dellums’ response: “Get over it” and “much ado about nothing.“ Get over it? Get over the fact that the City “arbitrarily used the funds,” “inflated job numbers” and “made serious accounting mistakes?”
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/04/22/MN0T1D30C0.DTL&type=printable
Well, I guess this isn’t too shocking, seeing as it’s coming from the same guy who doesn’t think he needs to pay his $250,000 federal tax bill. From the same guy who recently got fined by the FPPC for failing to disclose required conflict of interests. http://www.insidebayarea.com/news/ci_14853026 From the guy who managed to get an officer’s rank and name wrong when he spoke at the man’s funeral!. http://articles.sfgate.com/2009-04-01/bay-area/17192355_1_islam-san-francisco-mayor-housing-authority-commission/2
But frankly, it still pales in comparison to his biggest blunder of all - Measure Y! In March, 2008, Dellums vowed to do “whatever it takes” to get the authorized police force up to 803 officers. http://cbs5.com/local/oakland.dellums.speech.2.629703.html
To Dellums, the ends clearly justified the means, and turning Measure Y into his own private slush fund was just fine. And when Oakland very briefly achieved its authorized strength, Dellums kicked his PR machine into high gear. http://www.highbeam.com/doc/1P3-1597728731.html
So there's our embarrassment of a mayor, crowing over stealing millions of Measure Y funds, and bragging about how successful he is at begging in D.C. But now the chickens have come home to roost. His $7.7 million “Augmented Recruitment Program” of 2008 was declared patently illegal by the Alameda County Superior Court. And the boasts about making it to 803? Well, now we’re down to 770, and the City is at risk of losing up to $40 million in Measure Y funding, when I file my motion for preliminary injunction on Wednesday.
When a state auditor shows that Oakland is throwing away the stimulus money, or spending it on whatever it wants, like trips to Santa Cruz Beach Boardwalk, is it asking for too much for our mayor not to stick his foot in his mouth by saying this is “much ado about nothing?” Something is rotten in the City of Oakland.
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/04/22/MN0T1D30C0.DTL&type=printable
Well, I guess this isn’t too shocking, seeing as it’s coming from the same guy who doesn’t think he needs to pay his $250,000 federal tax bill. From the same guy who recently got fined by the FPPC for failing to disclose required conflict of interests. http://www.insidebayarea.com/news/ci_14853026 From the guy who managed to get an officer’s rank and name wrong when he spoke at the man’s funeral!. http://articles.sfgate.com/2009-04-01/bay-area/17192355_1_islam-san-francisco-mayor-housing-authority-commission/2
But frankly, it still pales in comparison to his biggest blunder of all - Measure Y! In March, 2008, Dellums vowed to do “whatever it takes” to get the authorized police force up to 803 officers. http://cbs5.com/local/oakland.dellums.speech.2.629703.html
To Dellums, the ends clearly justified the means, and turning Measure Y into his own private slush fund was just fine. And when Oakland very briefly achieved its authorized strength, Dellums kicked his PR machine into high gear. http://www.highbeam.com/doc/1P3-1597728731.html
So there's our embarrassment of a mayor, crowing over stealing millions of Measure Y funds, and bragging about how successful he is at begging in D.C. But now the chickens have come home to roost. His $7.7 million “Augmented Recruitment Program” of 2008 was declared patently illegal by the Alameda County Superior Court. And the boasts about making it to 803? Well, now we’re down to 770, and the City is at risk of losing up to $40 million in Measure Y funding, when I file my motion for preliminary injunction on Wednesday.
When a state auditor shows that Oakland is throwing away the stimulus money, or spending it on whatever it wants, like trips to Santa Cruz Beach Boardwalk, is it asking for too much for our mayor not to stick his foot in his mouth by saying this is “much ado about nothing?” Something is rotten in the City of Oakland.
Monday, April 19, 2010
Litigation Update
Want to know how morally bankrupt the City of Oakland really is? How utterly bereft of integrity your elected City officials are? Then you should check out the pleadings filed on their behalf by the City Attorney’s office. Seriously, for those of you left out there that think that your government representatives are looking out for your best interests, you need a reality check. Forget the spin. Forget the press releases and canned statements that get printed verbatim without analysis by what passes for the mainstream media these days. If you really want to know the City’s position on the issues, read their legal briefs.
So it’s been a while since I updated you on what’s been going on with all the litigation. Here’s the abridged version:
The Original Lawsuit:
I filed the original suit in April, 2008. The judge issued his final ruling last summer. Now the case is up on appeal. Jane Brunner is the only one who voted against approving an appeal. So all of you Rebecca Kaplan fans out there, who think she’s not responsible for any of the City’s horrible mistakes, think again. She voted to approve an appeal on a case that is a dead loser for the City. She’s a lawyer herself. She should know better.
Here’s why the case is a loser. The main issue is whether the City illegally spent approximately $15 million in Measure Y funds to recruit and train regular patrol officers. Not Measure Y officers. Regular patrol officers. Prior to Measure Y, recruitment and training expenses for these officers came out of the general fund. But when Measure Y was approved, and the general fund was broke, your trusted City officials helped themselves to the money that was available, thinking they’d never get caught. They almost got away with it. But then came the infamous $7.7 million “Augmented Recruitment Program” of March, 2008, which caught my attention. And the attention of plenty of others. Even the City Attorney's office told the Council they couldn't do what they were planning. In the end, the City Council included a provision in the resolution, promising that if any of the money ended up being spent on non-Measure Y officers, they’d refund that money to Measure Y. Well, needless to say, none of the money was ever spent on Measure Y officers, and the money didn’t get refunded.
Folks, this is an open and shut case. The trial court agreed. But Oakland is appealing. Why? Because they don’t have the money to repay the Measure Y fund! That’s the only logical reason. They have no viable legal defense. They're claiming the money grab was justified because using Measure Y funds allowed them to "backfill" the veteran officers that were placed into Measure Y positions, with new patrol officers. The problem is, they didn't bother to fill the Measure Y positions. Moreover, this "backfill" theory was also expressly rejected by the City Attorney's office, prior to my lawsuit. But now, it's all they've got. And all you taxpayers have footed the bill, and are continuing to foot the bill, for the City’s continued, frivolous defense.
The other issue involves the mandatory audits. You know, the ones we were promised to induce us to vote for Measure Y. The ones that were supposed to guarantee fiscal responsibility and accountability and all that good stuff. Never happened. Now, the City is claiming that the audits don’t really provide any “substantial benefit.” They don’t matter. Sound like Bernie Madoff and Enron to you? They’ve decided not to appeal that part of the case, and have submitted a bunch of sloppily thrown together crap that doesn’t in any way satisfy the audit requirements, and are claiming that this should be good enough. I’m contesting that, and the hearing is set for the end of May.
I'm also cross-appealing on two issues. The trial court ruled that in order to collect Measure Y taxes, all it needed to do was "appropriate" sufficient funding for 739 (non-Measure Y) officers; Measure Y doesn't actually require actual employment of those officers. "Paper officers" are good enough for the citizens of Oakland, apparently. That's not what voters were told, and I'm appealing that portion of the judge's ruling. I mean, how are we supposed to fight crime with paper officers? In addition, the judge dodged the issue of the fact that Measure Y requires the City to hire "at least" 63 new officers, with "at least" one for every beat, and "at least" 6 crime reduction team officers. By the time I filed my lawsuit, 3 1/2 years after Measure Y went into effect, only about half those officers had been hired. What a ripoff. The City, of course, will claim that Measure Y didn't actually require hiring the officers. Again, that's not we were told by the politicians at the time, and the text of the Measure actually does promise "at least" 63 additional officers. So I'm appealing on that as well.
The briefing is scheduled to conclude at the end of May. But it can take several more months for the Court of Appeal to schedule oral arguments, and several more months to issue a decision. So don’t count on a final decision anytime soon. Settlement? That’s not really an option right now. The City just doesn’t seem interested. Guess they’d rather spend hundreds of thousands of dollars in legal expenses than have to admit they were wrong. Big surprise there.
The New Lawsuit
The new lawsuit involves a bunch of violations, but the biggest by far is the City’s failure to budget for, or schedule any police academies. The police department is losing nearly 5 officers per month. It doesn’t take a rocket scientist to figure out that in order to just keep the number of officers stable, you need to hire nearly 60 officers a year. In the past, the City scheduled three or four academies a year. They haven’t had a single one since the middle of 2008! The one scheduled for December, 2008 was cancelled, and they haven’t had another one since then. You might have seen the press release that came out last Friday bragging about the new “academies.” Well, let me assure you, it’s too little, too late. It isn’t an OPD academy. One is being run by the Sheriff’s Department, and there are only 22 candidates. There’s a high attrition rate. If we’re lucky, 10-15 will finish successfully. Then there’s a lateral academy, with 5 candidates. So that’s maybe 20 officers added by the end of the year. In the meantime, we’ll have lost nearly 40. You do the math.
Under Measure Y, the City needed to have budgeted for academies in order to “maintain” baseline staffing at 739, just to collect Measure Y taxes. That was their "paper officer" argument. But now, they're not even doing that! So they shouldn’t be collecting the tax. Period. I’ll be filing a “motion for preliminary injunction” to try to get the superior court to prevent the City from collecting any further taxes while the matter is being litigated. That motion will probably be scheduled for the end of May as well.
How has the City responded to my new lawsuit? Interestingly, it isn’t even on the closed session agenda for tomorrow night. Wow. A lawsuit that could cost the City $40 million, and they won’t even talk about it. A lawsuit that's all about trying to get the City to do what it promised from the beginning. That's about getting enough officers on the streets to save lives and protect property. Do you still wonder why the City is such a mess?
So it’s been a while since I updated you on what’s been going on with all the litigation. Here’s the abridged version:
The Original Lawsuit:
I filed the original suit in April, 2008. The judge issued his final ruling last summer. Now the case is up on appeal. Jane Brunner is the only one who voted against approving an appeal. So all of you Rebecca Kaplan fans out there, who think she’s not responsible for any of the City’s horrible mistakes, think again. She voted to approve an appeal on a case that is a dead loser for the City. She’s a lawyer herself. She should know better.
Here’s why the case is a loser. The main issue is whether the City illegally spent approximately $15 million in Measure Y funds to recruit and train regular patrol officers. Not Measure Y officers. Regular patrol officers. Prior to Measure Y, recruitment and training expenses for these officers came out of the general fund. But when Measure Y was approved, and the general fund was broke, your trusted City officials helped themselves to the money that was available, thinking they’d never get caught. They almost got away with it. But then came the infamous $7.7 million “Augmented Recruitment Program” of March, 2008, which caught my attention. And the attention of plenty of others. Even the City Attorney's office told the Council they couldn't do what they were planning. In the end, the City Council included a provision in the resolution, promising that if any of the money ended up being spent on non-Measure Y officers, they’d refund that money to Measure Y. Well, needless to say, none of the money was ever spent on Measure Y officers, and the money didn’t get refunded.
Folks, this is an open and shut case. The trial court agreed. But Oakland is appealing. Why? Because they don’t have the money to repay the Measure Y fund! That’s the only logical reason. They have no viable legal defense. They're claiming the money grab was justified because using Measure Y funds allowed them to "backfill" the veteran officers that were placed into Measure Y positions, with new patrol officers. The problem is, they didn't bother to fill the Measure Y positions. Moreover, this "backfill" theory was also expressly rejected by the City Attorney's office, prior to my lawsuit. But now, it's all they've got. And all you taxpayers have footed the bill, and are continuing to foot the bill, for the City’s continued, frivolous defense.
The other issue involves the mandatory audits. You know, the ones we were promised to induce us to vote for Measure Y. The ones that were supposed to guarantee fiscal responsibility and accountability and all that good stuff. Never happened. Now, the City is claiming that the audits don’t really provide any “substantial benefit.” They don’t matter. Sound like Bernie Madoff and Enron to you? They’ve decided not to appeal that part of the case, and have submitted a bunch of sloppily thrown together crap that doesn’t in any way satisfy the audit requirements, and are claiming that this should be good enough. I’m contesting that, and the hearing is set for the end of May.
I'm also cross-appealing on two issues. The trial court ruled that in order to collect Measure Y taxes, all it needed to do was "appropriate" sufficient funding for 739 (non-Measure Y) officers; Measure Y doesn't actually require actual employment of those officers. "Paper officers" are good enough for the citizens of Oakland, apparently. That's not what voters were told, and I'm appealing that portion of the judge's ruling. I mean, how are we supposed to fight crime with paper officers? In addition, the judge dodged the issue of the fact that Measure Y requires the City to hire "at least" 63 new officers, with "at least" one for every beat, and "at least" 6 crime reduction team officers. By the time I filed my lawsuit, 3 1/2 years after Measure Y went into effect, only about half those officers had been hired. What a ripoff. The City, of course, will claim that Measure Y didn't actually require hiring the officers. Again, that's not we were told by the politicians at the time, and the text of the Measure actually does promise "at least" 63 additional officers. So I'm appealing on that as well.
The briefing is scheduled to conclude at the end of May. But it can take several more months for the Court of Appeal to schedule oral arguments, and several more months to issue a decision. So don’t count on a final decision anytime soon. Settlement? That’s not really an option right now. The City just doesn’t seem interested. Guess they’d rather spend hundreds of thousands of dollars in legal expenses than have to admit they were wrong. Big surprise there.
The New Lawsuit
The new lawsuit involves a bunch of violations, but the biggest by far is the City’s failure to budget for, or schedule any police academies. The police department is losing nearly 5 officers per month. It doesn’t take a rocket scientist to figure out that in order to just keep the number of officers stable, you need to hire nearly 60 officers a year. In the past, the City scheduled three or four academies a year. They haven’t had a single one since the middle of 2008! The one scheduled for December, 2008 was cancelled, and they haven’t had another one since then. You might have seen the press release that came out last Friday bragging about the new “academies.” Well, let me assure you, it’s too little, too late. It isn’t an OPD academy. One is being run by the Sheriff’s Department, and there are only 22 candidates. There’s a high attrition rate. If we’re lucky, 10-15 will finish successfully. Then there’s a lateral academy, with 5 candidates. So that’s maybe 20 officers added by the end of the year. In the meantime, we’ll have lost nearly 40. You do the math.
Under Measure Y, the City needed to have budgeted for academies in order to “maintain” baseline staffing at 739, just to collect Measure Y taxes. That was their "paper officer" argument. But now, they're not even doing that! So they shouldn’t be collecting the tax. Period. I’ll be filing a “motion for preliminary injunction” to try to get the superior court to prevent the City from collecting any further taxes while the matter is being litigated. That motion will probably be scheduled for the end of May as well.
How has the City responded to my new lawsuit? Interestingly, it isn’t even on the closed session agenda for tomorrow night. Wow. A lawsuit that could cost the City $40 million, and they won’t even talk about it. A lawsuit that's all about trying to get the City to do what it promised from the beginning. That's about getting enough officers on the streets to save lives and protect property. Do you still wonder why the City is such a mess?
Wednesday, April 7, 2010
A Step In The Right Direction
Tonight, the Public Ethics Commission considered the complaint I filed regarding 13 separate violations of the California Public Records Act, all within the last year or so. I am happy to report that the PEC, as well the speakers on the issue, all sympathized with my frustration at the City's abysmal track record on legal compliance issues. The PEC agreed to refer the matter to mediation, as I had requested.
Several of the speakers related stories of their own experiences with the City failing to produce responsive records, failing to produce the records in a timely manner, or outright destroying records. It's about time the negligence (or possibly even corruption) come to a halt. I promise to work together with City officials (assuming that they will work with me) to develop policies, procedures, training, tracking methods, whatever it takes, to ensure legal compliance. And, by the way, I'm not running for public office. I just want the City to clean up its act.
I'm hoping the City shares that commitment. Gotta say, though, I am not convinced. The City Attorney's representative, Mark Morodomi, got up and clarified that he was speaking on behalf of "the City Attorney's office only." He wasn't going to offer any apologies, excuses or defenses for the lame department heads who somehow can't manage to respond to an agressive litigator's public records requests in a timely manner. No respresentative for the "City" showed up to offer a defense or explanation. Is that bizarre or what? At any rate, I'm going to try to drag whoever is in charge of this pathetic City government, kicking and screaming if I have to, to the mediation table to make sure they comply with the law. How much more public humiliation will be necessary for them to realize that fighting against someone exercising a clear, constitutional right is a losing battle?
By the way, want to know how much of your hard earned tax dollars are being spent to fight against the public's clear legal rights? I did a public records request, as a follow up to a request made at the MYOC, for billing records indicating how much the City has spent fighting my Measure Y battle to date. The grand total is 1443 hours. I estimate that's essentially one attorney's full time job for a full year, or around $200,000, including salary and benefits. In actual attorney time, billing at $200 per hour, it's closer to $300,000 (oh, and $200 is actually really cheap. They claim they pay their outside lawyers closer to $300 an hour). You should also know that to the extent somebody sues a public entity and wins this kind of case, they are entitled to their attorney fees as well. The City so far is claiming to that to the extent I am representing myself, they don't have to pay me (we'll see about that), but I've had another lawyer helping me for nearly a year now, and they definitely are on the hook for his time. Your tax dollars at work.
Several of the speakers related stories of their own experiences with the City failing to produce responsive records, failing to produce the records in a timely manner, or outright destroying records. It's about time the negligence (or possibly even corruption) come to a halt. I promise to work together with City officials (assuming that they will work with me) to develop policies, procedures, training, tracking methods, whatever it takes, to ensure legal compliance. And, by the way, I'm not running for public office. I just want the City to clean up its act.
I'm hoping the City shares that commitment. Gotta say, though, I am not convinced. The City Attorney's representative, Mark Morodomi, got up and clarified that he was speaking on behalf of "the City Attorney's office only." He wasn't going to offer any apologies, excuses or defenses for the lame department heads who somehow can't manage to respond to an agressive litigator's public records requests in a timely manner. No respresentative for the "City" showed up to offer a defense or explanation. Is that bizarre or what? At any rate, I'm going to try to drag whoever is in charge of this pathetic City government, kicking and screaming if I have to, to the mediation table to make sure they comply with the law. How much more public humiliation will be necessary for them to realize that fighting against someone exercising a clear, constitutional right is a losing battle?
By the way, want to know how much of your hard earned tax dollars are being spent to fight against the public's clear legal rights? I did a public records request, as a follow up to a request made at the MYOC, for billing records indicating how much the City has spent fighting my Measure Y battle to date. The grand total is 1443 hours. I estimate that's essentially one attorney's full time job for a full year, or around $200,000, including salary and benefits. In actual attorney time, billing at $200 per hour, it's closer to $300,000 (oh, and $200 is actually really cheap. They claim they pay their outside lawyers closer to $300 an hour). You should also know that to the extent somebody sues a public entity and wins this kind of case, they are entitled to their attorney fees as well. The City so far is claiming to that to the extent I am representing myself, they don't have to pay me (we'll see about that), but I've had another lawyer helping me for nearly a year now, and they definitely are on the hook for his time. Your tax dollars at work.
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