Another Miscarriage of Justice

The hearing on my second lawsuit against the City took place last week. Yesterday the judge issued his tentative decision. The decision is sad news for public safety and open government advocates, as well as anybody who thinks that violations of law should have consequences. The result of the suit in no way indicates that the City did not actually violate the law. I demonstrated multiple and clear violations with respect to the City’s collecting of Measure Y taxes, with respect to the police staffing that is required under Measure Y, and with respect to access to public records. What this decision says, in essence, is that the City can violate the law whenever and however it chooses, and there’s no stopping them. The public safety purpose of Measure Y is irrelevant. Past interpretations of Measure Y by the court of appeal, in a published decision, are irrelevant. The fact that numerous beats in Oakland went without their promised PSOs and CRTs for months at a time - also irrelevant. The fact that each community policing beat that existed in Oakland at the time Measure Y was promised their own PSO - meaningless. The right of citizens to get prompt confirmation of public records requests and have prompt access to public records, and the constitutional implications - apparently unenforceable. Here’s the detailed rundown:

First Cause of Action: Violation of Measure Y’s Appropriation Requirements:
As you may recall, the City initially touted Measure Y as guaranteeing baseline staffing at 739 officers as a precondition of collecting the tax. After Measure Y passed, the City took a more strained reading, claiming that all that was necessary was “appropriation” to maintain 739 officers, not actual staffing. In the Court of Appeal’s decision in my first lawsuit, the Court clearly held that the word “maintain” required recruitment and academy training. In my second suit, I conclusively proved that the City failed to ”appropriate” sufficient funding to “maintain” the staff at 739 officers. Specifically, the City needed approximately $9-10 million a year to keep the size of the police force steady, but it only “appropriated” around $1.5 million (it actually spent even less). Not nearly enough. As a result, the size of the non-Measure Y force never even reached 739 for the 09/10 fiscal year. None of these facts are in dispute. The Court of Appeal, in a published decision, defined the word “maintain” to include the need for recruitment and training in order for the City to meet its public safety objectives. In reaching the decision here, the trial court completely ignored the Court of Appeal’s interpretation of Measure Y, and without explanation or analysis, holds that appropriation for recruitment and academy training are not required.

Second Cause of Action: Failure to Fill PSO Positions:
I submitted unrefuted evidence that six officers were deployed away from their PSO beats for months at a time, doing work completely unrelated to Measure Y. The City did not dispute that they did this. I also submitted unrefuted evidence that as of the date of the hearing, there were numerous beats that did not have their own dedicated officer, due to the new reconfiguration of beats from 57 down to 35. I submitted unrefuted evidence that voters were informed, in the voter information pamphlet, that each “existing” beat would get its own PSO, and argued that the City could not unilaterally reduce the number of beats to 35. The decision contains no discussion of the fact that officers were deployed away from their beats for months at a time. Nor does it discuss the evidence in the voter information pamphlet, written by John Russo, that it was the “existing beats” that determined how the officers were to be deployed. Lastly, the decision does not discuss City Council Resolution 72727 requiring 57 community policing beats.

Third Cause of Action: Failure to Fill CRT Positions:
I submitted unrefuted evidence that Measure Y required 6 CRT positions, and those positions were not filled for all but three months since Measure Y passed until I filed my lawsuit. The decision fails to discuss this evidence, and notes that as long as the positions were filled at the time of the hearing, the betrayal of the promises of Measure Y for the last 5 years are apparently irrelevant.

Fourth Cause of Action: Failure to Engage In An RFP Process For Measure Y Contracts.
I submitted unrefuted evidence that for millions of dollars of Measure Y violence prevention contracts, the City conducted no RFP process, and awarded the grants to whoever they wanted. The City tried to justify the award of these funds by calling them “grants” and claiming that a provision of the municipal code allowed them to award “grants” without any RFP. Problem is, that provision of the municipal code only applies to the receipt of grants by the City, not the award of grants by the City to others, and the judge verbally acknowledged this during the hearing. After I had already filed my responsive brief, the City suddenly claimed a 90 day statute of limitations applied, and the judge held that it did, despite the fact that the 90 day statute of limitations clearly only applies to matters involving administrative hearings. Strangely, the decision notes that the OMC provision that the judge acknowledged during the hearing doesn’t apply, does apply. Oh, and by the way, in response to my lawsuit, the City did change the municipal code to allow itself to award contracts to anybody they want without bidding or an RFP process by calling them “grants.”

Fifth Cause of Action: Distribution of Measure Y Funds To Violence Prevention Programs Not Covered By Measure Y.
The judge held the same 90 day statute applied.
Sixth Cause of Action: Failure to Comply With Public Records Act.

I submitted unrefuted evidence that the City regularly fails to comply with the requirement that the City respond to records requests within 10 days, and regularly took months to provide responsive documents, thereby obstructing my right to receive responsive documents in a prompt manner. The decision does not address these undisputed facts. Instead, the decision holds that as long as I got my documents eventually, that was good enough. Obviously, access to records eventually is not the issue. Many requestors of public records are news organizations. Late information is as good as no information. If it takes seven months to get access to basic public documents, the documents become meaningless. The news is no longer “new.” Currently, citizens have to nag and hound and wait for months to get responsive documents? This decision means that the situation is likely to get worse, rather than better. Never mind that the actual law requires a response within 10 days, and requires the public agency to not obstruct access to documents, or delay production.

Seventh Cause of Action: Violation of Public Ethics Commission Timelines

The PEC rules require that the Executive Director issue a report within 30 business days, unless an extension is granted by the Commission. There was undisputed evidence that the Executive Director here, never complies with this rule. He offered to excuse. It took six months for my complaint to get a first hearing. The tentative decision fails to even acknowledge the 30 business day rule. It fails to acknowledge the undisputed facts that the rule was not complied with, and in fact is never complied with. It fails to acknowledge that the PEC is supposed to “lead by example,“ as required by its own bylaws. Rather, the decision focuses on the fact that my complaint was eventually processed, and that any harm was “de minimus.” Expect the PEC to become even more of a kangaroo court in the future than it already is.