Tuesday, July 31, 2012

Former Measure Y Administrator Sues Oakland

Jeff Baker, former Assistant to the City Administrator, was fired in March, 2011, and filed a lawsuit alleging wrongful termination in March of this year. I finally had a chance to review the suit in some detail, and as an employment litigator and somebody with more knowledge about Measure Y than practically anybody else around, I'll share my insights.

In a nutshell, Baker is claiming that he would submit requests for information on Measure Y related topics and complaints to OPD and OFD and would get no response. He claims he communicated concerns about issues related to Measure Y implementation and legal compliance, like understaffing of problem solving officers, as well as patrol positions and overtime inappropriately being paid through Measure Y. He claims he got no response to these communications. He claims when he tried to meet with then City Administrator Dan Lindheim, Lindheim would blow him off or cancel the meetings, and once told him, "No on important has time to read emails." While he mentions the "specter of racism," he doesn't actually allege race discrimination, and rather, has sued for retaliation (for having made "inquiries" and voiced "concerns"), breach of contract, wrongful discharge in violation of public policy, and negligent infliction of emotional distress.

Baker, who I understand has a law degree but never passed the bar, is representing himself in the action. Usually, that means he shopped the case around and nobody would take it. As an employment litigator, I would say the City would have had strong grounds for having all of the causes of action except for two thrown out on what is called a "demurrer," i.e. a pleading that disposes of the claims very quickly on legal grounds. The other two claims are likely to be thrown out prior to any requested jury trial because Baker won't be able to establish the necessary facts. His main claims for retaliation are based on Labor Code 1102.5 and Government Code Section 12940(h), which would generally require the plaintiff to actually have filed a complaint, not just made "inquiries." Moreover, reporting illegal activities to your own employer, as opposed to somebody else, is not enough to claim whistleblower status. Lastly, the plaintiff would need to establish that he was reporting actually illegal conduct, not just improper conduct. So to win on his main claim, Baker would pretty much have to prove the merits of my last two lawsuits. Good luck to him on that!

What is so ironic about all this is that Baker was exceedingly unhelpful to me throughout my litigation. He seemed like a government stooge to me all the way, not a whistle-blower. At one meeting, he reprimanded the Measure Y Oversight Committee for allowing me to speak more than two minutes on the topic of Measure BB, prior to the election. When I said something back that he considered unflattering, he walked past me, glared at me, and said, "shameful," in an effort to intimidate and muzzle me. Of course it was completely inappropriate for a public official to try to silence a member of the public in such a way, and I reported my concerns to Lindheim at the time. Not that he did anything, given that important people never read their email. (Actually, he did admit to me that if I cc'd him on an email he wouldn't read it, and in order to get his attention, I started sending emails directly to him, not as copies.)

What is particularly sad about all this is that such a lawsuit could have had the potential to shed some light on major Measure Y abuses. But I don't think this one will. I'll bet dollars to donuts that Baker never actually alleged any Measure Y violations, and I'm pretty sure he never put those concerns in writing. In my own discovery requests, I certainly never received any such emails, which should have been encompassed by my requests. Moreover, I always suspected that when he was working with the program auditors, they were in cahoots to cover up or minimize Measure Y abuses, not highlight them. And given all of his contact with those auditors, and his regular contact with the MYOC, where is the evidence that he shared his concerns or "complaints" with them? I doubt there is any, because I doubt he had any concerns. Moreover, one of the issues I prevailed on in my original lawsuit was the City's failure to conduct the annual audit required by the Government Code. It didn't get done for three years until I sued. Whose fault was it that it never got done? In my opinion - his.

The bottom line is that I don't think this lawsuit will amount to a hill of beans. It will cost the City a lot of money, as all litigation does, but won't serve any public purpose in improving transparency or accountability. So we all lose. Again.

5 comments:

  1. Thank you for providing the necessary background to understand the flimflamming of our civil servants. It is not surprising, and yet it is astonishing. And it certainly demonstrates by example how our tax money is wasted wasted wasted.

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  2. Thank you for clarifying this Marleen. This ex City of Oakland employee's past and current actions are indeed shameful.

    Ken Ott
    Campaign Manager
    Len Raphael for City Council, District 1 (North Oakland)

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  3. Marleen - please consider moving to wordpress soon. You'll get a lot more traffic, acces great tools, and compose posts more easily.

    Do you do these in Word presently before posting?

    K

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  4. Marleen, my name is Erick and I am trying to review this case. I cant locate a case number to access the file or complaint. If possible could you email me at ewh7@cornell.edu so that I can track this case down? Thank you.

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  5. Greetings! Do you happen to have any journalism or it is just a completely natural gift of yours? Thanks in advance for your answer.

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