So there I was, on the Jalisco coast of Mexico, looking out at the azure ocean to my right, verdant jungle to my left, from the perch of our lovely guest house where we had just checked in, after having been handed a glass of white wine by our gracious hosts. Bliss. After a long drive down the coast, that had taken most of the day, I decided to check my email.
Picking up my iPhone, I read an email from my assistant. Something about my neighbor calling to get my cell phone number. Something about a canine unit and four (!) police vehicles outside my house. Then there was a voice mail from the burglar alarm company calling to report that an alarm had gone off. Things went downhill from there.
My phone wouldn’t work. Fortunately, I was able to use our hosts’ phone, and managed to find out that indeed our house had been broken into. And the burglars had ripped the control panel to the alarm right out of the wall. Under these circumstances, the City frequently has people come out and slap a bunch of plywood over the broken-into window, subjecting burglary victims to the additional insult of having to pay several hundred dollars for this “service.” Fortunately in this case, my neighbors were there to assist the police in securing the window. My neighbor gave us the number for the police department. Surprise, surprise, nobody would answer the phone. After several hours of stress and anxiety and expensive phone calls to the burglar alarm company and my wonderful neighbors, I was able to arrange for repair of the alarm.
But the damage was done. My TV was gone (hauled out the door at 10:00 a.m. by the thieves, with burglar alarm blaring), and God knows what else. The peace and tranquility of my vacation was ruined. I thought about coming home early, worried about the house not being secure, worried that I couldn’t enjoy the rest of the vacation anyway, fuming over the invasion of my privacy and security. But I stuck it out, made the best of it, and am now dealing with the aftermath.
I cannot express the frustration that I went through this morning trying to reach OPD. It was completely futile. The note left by the police in my mailbox indicated that the police didn’t know what had been taken, and I was to contact them to give them a list. But no phone number was provided. So I call the “burglary” section of investigations. No human being. Just menu-driven hell. No option to speak to an operator for assistance. So I call patrol. I reach a human being! But then he connects me to the “emergency number” for OPD. Well, that’s not right! I hang up, call again, and explain I don’t want dispatch. He says that’s who I need to talk to, and puts me through to the non-emergency number this time. I’m on hold for over six minutes listening to a bored voice repeat over and over that nobody is available right now, please hold. Then I get to listen to it in Spanish. Then I get to listen to a really obnoxious set of beeps and buzzes for deaf people. Over, and over, and over again. Finally, I get connected to a dispatcher. Of course, they can’t help me. They have no idea which investigator is assigned to the case. They can’t transfer me to somebody who knows anything about my case. They offer to send an officer out to take the additional information. What? How does that make any sense? I can provide that information over the phone! But no, this is all they can do. But I’m at work! How does that help me? Sorry, they tell me, that’s all they can do. Can they come by after work, I ask. No, I’m told, they don’t make appointments. I try several other numbers, to no avail. Nobody picks up the frickin phone.
This, gentle readers, is the level of service we get in Oakland. No police protection. No follow-up investigation. No phone number to call. No contact person. Nobody to even answer the phone. I was in tears. And you know what? My troubles are trivial compared to people who have been subjected to armed robberies, beatings, rapes, family members murdered etc. I can’t even begin to imagine what they’re going through. This is what we get when our police department is not properly funded. And it’s only going to get worse.
The City, meanwhile, continues to claim it has no money. And yet, it came up with $750,000 to fund an EIR for a baseball stadium that the A’s have repeatedly said they have no interest in! Quan recently estimated the chance of the investment paying off as “50-50.” Does that sound like a good gamble to you? And frankly, I don’t know where she’s getting those odds from. The City continues to whine about how, like all cities, it is suffering from the global recession. Well, in yesterday’s USA today, there was an article about how violent crime has dropped dramatically in major cities all over the U.S. - 68% in Los Angeles, by the way. http://www.usatoday.com/news/nation/2010-12-29-1Ahomicide29_CV_N.htm And LAPD credits, in part, a larger police department. Somehow, they managed to add nearly 700 officers in the last four years. You heard right, that’s how much they ADDED. That’s more than we have altogether!
Anyway, enough of the good cheer. Happy new year.
Thursday, December 30, 2010
Sunday, December 12, 2010
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.
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.
Saturday, December 4, 2010
Why You Need To File Your Measure Y Refund Claim Now!
For nearly three years, I have been litigating against the City to help improve public safety and accountability. The City promised us 803 officers under Measure Y, and we got that staffing for less than six months. I kept hoping to be able to negotiate a settlement with the City, under which they would agree to obligate themselves to the promised staffing after Measure Y expired. Even after the passage of Measure BB, I thought there was room to negotiate. But folks, it's not going to happen. The City is not going to honor its public safety commitments any time in the near future. We had a settlement meeting a couple of weeks ago, and it was a complete waste of time.
So what that means is that this lawsuit is going to go to trial. And unless the judge is willing to explore novel and imaginative ways to compensate the citizens of Oakland for the public safety improvements we never got, this case is going to be about refunding the taxpayers the Measure Y funds for which they got no bang for buck. Honestly, I was hoping it would never come down to this. I know there are people out there who think I'm just some die-hard anti-tax tea partier, but I'm not. I voted for Measure Y. And I don't think forcing the City to pay back $20 million in illegally collected taxes will make Oakland a better place. But that's the most obvious remedy. If you want your money back, the Court and the City are likely going to demand that you file a claim first. Which, of course, most people won't do, but if you want to send the City a message, you better do it. And you better do it now.
Under Measure Y, you need to file a claim withhin a year of paying your taxes. The first installment is due in November, and the second installment is due in the spring. So you need to file your claim now or the City could deny it as late. In fact, they might still do that. And after I win, and the general public hears that the City illegally collected Measure Y taxes in 2009/10, then a lot more people are going to want their money back. And the City will no doubt claim, "oh, sorry about that, but you needed to have filed a claim first, and since you didn't follow the law and file your claim within the deadlines, well then, your SOL, too bad." And then a ton of people will be really pissed off at the City for being corrupt, disingenuous thieves. And then maybe my message will finally get across. But I can tell you, so far, nobody's listening.
And I can also tell you that there is absolutely no question that the City illegally collected Measure Y taxes in 2009/10. Measure Y says that in order to collect the tax, the City has to "appropriate" sufficient funds to maintain staffing at 739 non-Measure Y officers. There is no question that the City did NOT do this. The documentation shows that as of December, 2008, the City knew that it would need to "appropriate" approximately $9 to $10 million annually to maintain full staffing at 803 officers. As of November, 2009, it had appropriated a grand total of zero dollars for police recruitment and academy training, and staffing was well below its authorized strength at that time. In fact, it didn't appropriate any funding for academies until February, 2010, and that was more than $8 million less than what was necessary, and staffing was already below 770. So they are totally dead in the water. They didn't staff at the promised levels, and they didn't "appropriate" to maintain staffing at the promised levels. The tax was illegal. Period. End of story.
Not that anybody's apologizing for any of this. For the last two weeks I've had the pleasure of taking various City officials' depositions and watch them squirm and deny and evade and avoid the obvious truth that Measure Y has been betrayed, and that public safety is compromised. With no apologies, and no settlement, this case is going to trial in March, 2011.
To file your claim, I'm reprinting the instructions from my previous post on this topic below, Feel free to cut and paste. If your claim is denied, make sure you appeal that denial to the "Business Tax Review Board" within 60 days. Good luck!
Director of Finance
Finance & Management Agency
City of Oakland City Hall
1 Frank Ogawa Plaza
Oakland, CA 94612
Re: Claim for Measure Y Refund
To Whom It May Concern:
Pursuant to the terms of Measure Y, please consider this a request for a refund for Measure Y taxes collected in 2008 and 2009. The basis for the refund claim is the City’s continued violation of numerous aspects of Measure Y, as outlined in [ ] previous litigation (Sacks v. City of Oakland) and previous recent correspondence with the City Attorney’s Office. Specifically, Measure Y provides: “Minimum Police Staffing Prerequisite at Fiscal Year 03/04 Level - No tax authorized by this ordinance may be collected in any year that the appropriation for staffing of sworn uniformed police officers is at a level lower than the amount necessary to maintain the number of uniformed officers employed by the City of Oakland for the Fiscal Year 03-04 (739).”
Last fall, the City of Oakland cancelled the 166th police academy. In the Spring of 2009 the City adopted a budget that contained no appropriations for additional police academies. As a result, the police force has dropped below 802 (its authorized strength). Therefore, the City failed to appropriate sufficient non Measure Y funds to maintain the police force at 739 and is in violation of Measure Y. Collection of the tax is patently illegal.
I [ ] received my 2009 Secured Property Tax Statement indicating a Measure Y tax for $90.72. Last year the tax was for $88.00. For most of 2008, the police force was under its authorized strength of 802 officers as well, and the City failed to appropriate sufficient funds for that year as well. On this basis, I am claiming a refund for both years. I look forward to receiving a prompt response to this demand.
So what that means is that this lawsuit is going to go to trial. And unless the judge is willing to explore novel and imaginative ways to compensate the citizens of Oakland for the public safety improvements we never got, this case is going to be about refunding the taxpayers the Measure Y funds for which they got no bang for buck. Honestly, I was hoping it would never come down to this. I know there are people out there who think I'm just some die-hard anti-tax tea partier, but I'm not. I voted for Measure Y. And I don't think forcing the City to pay back $20 million in illegally collected taxes will make Oakland a better place. But that's the most obvious remedy. If you want your money back, the Court and the City are likely going to demand that you file a claim first. Which, of course, most people won't do, but if you want to send the City a message, you better do it. And you better do it now.
Under Measure Y, you need to file a claim withhin a year of paying your taxes. The first installment is due in November, and the second installment is due in the spring. So you need to file your claim now or the City could deny it as late. In fact, they might still do that. And after I win, and the general public hears that the City illegally collected Measure Y taxes in 2009/10, then a lot more people are going to want their money back. And the City will no doubt claim, "oh, sorry about that, but you needed to have filed a claim first, and since you didn't follow the law and file your claim within the deadlines, well then, your SOL, too bad." And then a ton of people will be really pissed off at the City for being corrupt, disingenuous thieves. And then maybe my message will finally get across. But I can tell you, so far, nobody's listening.
And I can also tell you that there is absolutely no question that the City illegally collected Measure Y taxes in 2009/10. Measure Y says that in order to collect the tax, the City has to "appropriate" sufficient funds to maintain staffing at 739 non-Measure Y officers. There is no question that the City did NOT do this. The documentation shows that as of December, 2008, the City knew that it would need to "appropriate" approximately $9 to $10 million annually to maintain full staffing at 803 officers. As of November, 2009, it had appropriated a grand total of zero dollars for police recruitment and academy training, and staffing was well below its authorized strength at that time. In fact, it didn't appropriate any funding for academies until February, 2010, and that was more than $8 million less than what was necessary, and staffing was already below 770. So they are totally dead in the water. They didn't staff at the promised levels, and they didn't "appropriate" to maintain staffing at the promised levels. The tax was illegal. Period. End of story.
Not that anybody's apologizing for any of this. For the last two weeks I've had the pleasure of taking various City officials' depositions and watch them squirm and deny and evade and avoid the obvious truth that Measure Y has been betrayed, and that public safety is compromised. With no apologies, and no settlement, this case is going to trial in March, 2011.
To file your claim, I'm reprinting the instructions from my previous post on this topic below, Feel free to cut and paste. If your claim is denied, make sure you appeal that denial to the "Business Tax Review Board" within 60 days. Good luck!
Director of Finance
Finance & Management Agency
City of Oakland City Hall
1 Frank Ogawa Plaza
Oakland, CA 94612
Re: Claim for Measure Y Refund
To Whom It May Concern:
Pursuant to the terms of Measure Y, please consider this a request for a refund for Measure Y taxes collected in 2008 and 2009. The basis for the refund claim is the City’s continued violation of numerous aspects of Measure Y, as outlined in [ ] previous litigation (Sacks v. City of Oakland) and previous recent correspondence with the City Attorney’s Office. Specifically, Measure Y provides: “Minimum Police Staffing Prerequisite at Fiscal Year 03/04 Level - No tax authorized by this ordinance may be collected in any year that the appropriation for staffing of sworn uniformed police officers is at a level lower than the amount necessary to maintain the number of uniformed officers employed by the City of Oakland for the Fiscal Year 03-04 (739).”
Last fall, the City of Oakland cancelled the 166th police academy. In the Spring of 2009 the City adopted a budget that contained no appropriations for additional police academies. As a result, the police force has dropped below 802 (its authorized strength). Therefore, the City failed to appropriate sufficient non Measure Y funds to maintain the police force at 739 and is in violation of Measure Y. Collection of the tax is patently illegal.
I [ ] received my 2009 Secured Property Tax Statement indicating a Measure Y tax for $90.72. Last year the tax was for $88.00. For most of 2008, the police force was under its authorized strength of 802 officers as well, and the City failed to appropriate sufficient funds for that year as well. On this basis, I am claiming a refund for both years. I look forward to receiving a prompt response to this demand.
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