City Council To Consider Phony and Illegal Resolutions On Tuesday

According to an interview with Larry Reid, citing a recent poll (a copy of which I have requested) Measure I currently doesn't have close to the necessary support to pass. So in an effort to buy votes and deceive voters, the City Council intends to consider two resolutions on Tuesday that would supposedly indicate how the funds would be spent. However, a resolution such as this would have no legal effect, since the language isn't contained in the ballot measure itself. In addition, even consideration of the resolution is using public resources for campaigning, and is illegal. Below is the text of a letter I sent to Oakland officials that lays it all out.

Dear Oakland Officials:

This is in response to the two resolutions being considered at this coming Tuesday’s City Council meeting, regarding proposed allocations of funds from Measure I, a proposed parcel tax that has not yet been voted on, and which, according to a recent poll, is unlikely to pass. We object to the Council’s consideration of these two proposals on the grounds that it is not only a waste of public resources, but is also illegal, and meaningless.

As you are well aware, the Council had the option of drafting a parcel tax measure that was truly a special tax, i.e. a tax that was designated to benefit specific city services, like Measure Y (public safety) or Measure Q (libraries). But City officials were no doubt aware at the time the language of the ballot measure was considered that the City had failed miserably to satisfy the promises of both measures. Specifically, they were excruciatingly aware of the original promises made by Measure Y - to add 57 new community policing officers, and expand the strength of the police force to 803 officers. Today, the force stands at 651 officers, and is falling every month. Many beats in Oakland lack any dedicated community policing officer. With respect to Measure Q, City officials promised that branch libraries would be open 6 days a week. Today, none of them are.

So knowing that the City had failed to honor the promises of its two most recent parcel taxes, you intentionally drafted a measure that contained no promises whatsoever. No promises for specific funding, no promises for improved services - nothing. And yet, you hoped that citizens would still fall for it. You hoped that your threats of further reduced services, and your pleas for charity would be enough. Now, it has become clear that they were not, and you are resorting to new lows in political tactics to try to convince voters that designated services will receive designated funds from this tax. We know that the proposed resolutions are a farce.

As the Council, the City Attorney and I are all aware, the legal restrictions on how Measure I funds may be spent are governed by Measure I itself. “The relationship between the public entity and the electorate arising out of voter-approved revenue measures has been alternatively described either strictly contractual or analogous to a contract." (Committee for Responsible School Expansion v. Hermosa Beach City School Dist. (2006) 142 Cal.App.4th 1178, 1191 [48 Cal.Rptr.3d 705] (Hermosa Beach), citing Associated Students of North Peralta Community College v. Board of Trustees (1979) 92 Cal.App.3d 672, 676-677 [155 Cal.Rptr. 250] (Associated Students)) cited in Sacks v. City of Oakland (2010) 190 Cal.App.4th 1070 (2010) "`It is clear that proceeds of a bond issue may be expended only for the purpose authorized by the voters in approving issue of the bonds [citation].” It is the ballot measure itself that determines the extent of the restrictions. (San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1397 [44 Cal.Rptr.3d 128].) Were it not so, the City would have been obligated to honor the commitments made it campaign propoganda on on the City's own "FAQ" website regarding expansion of the police force to 803 officers. But the City effectively argued that it was not actually obligated to expand the force, because the promises weren't contained in the ballot measure itself.

Therefore, the proposed Resolutions are meaningless, as they are not binding on either the City or the voters. Moreover, you know full well that they are meaningless and non-binding.

It is clear that the only reason that these two competing resolutions are being presented is to serve a political purpose, i.e. to campaign in favor Measure I. This is patently illegal, as you and the City Attorney are also aware. Government Code section 54964 and 8314 and the California Supreme Court case of Stanson v. Mott (1976) 17 Cal. 3d 206 all prohibit the use of public funds and resources to advocate for or against a particular ballot measure. Because this is precisely what these resolutions are intended to do, consideration of these resolutions is explicitly prohibited by the law.

The proposed resolutions seek to designate specific purposes for the funds. However, there are currently no funds, since the measure has not yet been approved by the electorate. Therefore, consideration of the resolution is a waste of time, and a clear form of “counting your chickens before they’re hatched,” to coin a legal term. Obviously, if the measure were to pass, the Council could expeditiously amend the budget to designate the funds for needed purposes, and there is no need to do so prior to the election. Unless, of course, the Council believes the need exists because the Measure appears to be doomed for failure, and designating the funds for specific purposes would help defeat the opposition. For example, if the Council designates approximately $5 million for police academies, the Council could effectively “buy” the support of the Oakland Police Officers Association. In addition, in response to complaints from voters that say, “but we don’t know how the money can be spent,” you could tell such voters, who have no idea that the resolution is not legally binding, “oh, but now you do!”

Member of the City Council and Ms. Quan, your efforts are transparent and patently illegal. We request that you seek an opinion from the City Attorney’s office. Upon receipt of a legal opinion, this will be confirmed. We therefore also ask that this item be removed from consideration from Tuesday night’s agenda