Defending Measure Y

Honoring Sanjiv Handa

2012-01-01T17:41:00.000-08:00

So yesterday I attended the funeral of Sanjiv Handa, whom City Hall watchers would undoubtedly remember for his tireless rants against public officials for their lack of accountability, violations of public records laws and Brown Act violations, among other faults. He died unexpectedly at the age of 55. As a self-described “journalist,” he was generally more interested in espousing his own opinions, was almost certainly mentally ill, regularly sabotaged his own credibility by threatening to sue without any intention or means to do so, and made numerous and regular factual errors in his “reporting.” Despite all of this, I had to see him on some level as a kindred spirit.

And so I was happy to see the enormous turnout at his memorial service, which included Council President Larry Reid, former councilmember Nate Miley, at least two members of the Measure Y Oversight Committee, former Assistant City Administrator Jeff Baker, numerous bloggers and reporters, Interim Police Chief Howard Jordan, and former City Attorney John Russo, among others. Of the non-family member speakers, most, if not all, commented on Sanjiv’s obsession with Oakland politics, without necessarily making specific mention of the details, such as corruption, mismanagement, or violation of transparency rules. None of them pointed out that many of Sanjiv’s criticisms were well-founded, or that his frustration and discouragement by the ongoing abuses may have actually contributed to his mental health issues or untimely death. But perhaps it was neither the time nor the place for such commentary, so that can be forgiven.

Larry Reid announced his intention of honoring Sanjiv’s memory by dedicating and naming a room at City Hall after him, and the crowd broke into applause. It was a sweet and sincere offer, and I hope he follows through on it. But the fact of the matter is that Sanjiv’s memory should and must be honored in a much more meaningful way, and that is for the City to start respecting and complying with the California Public Records Act and the Brown Act, the two topics most dear to Sanjiv’s heart.

For every Oakland politico I saw at the event, I couldn’t help thinking of their personal and specific violations of those laws. Larry Reid, who most recently violated the Brown Act in the most blatant and appalling manner regarding the appointment of Jakada Imani to the Port Commission. (His appointment was later tossed due in large part to the overt violation of the Brown Act). Jose Dorado, Jean Quan’s appointee to the Measure Y Oversight Committee, who also within the last couple of months tried to hold a meeting without any posting of an agenda whatsoever. (After my strong objections and pointing out the blatant legal violations, the meeting was canceled). Interim Police Chief Howard Jordan, who oversees the police department, is currently facing allegations from the ACLU over failing to respond to numerous public records requests. John Russo oversaw the City Attorney’s office and defended against my lawsuit alleging multiple, obvious and regular violations of the Public Records Act. Jeff Baker, who regularly tried to stymie my efforts at accountability and access to records.

So I ask you and our Oakland officials to consider, in light of Sanjiv’s very recent passing, his obsessions and meaning in life, and the start of a new year, what is truly the most meaningful way to honor his memory? It must start with an acknowledgment that his accusations were on many levels well-founded, that those attending his service were among the offenders, and that saying a few kind words and naming a room in a building is simply not enough. The City must make a concerted and meaningful effort to significantly improve compliance with the Brown Act and the California Public Records Act. Only then will I be convinced that their presence at his memorial or their kind eulogies were anything more than lip service and political opportunism.

City Gets Trounced

2011-11-17T10:53:00.001-08:00

So you all know by know that Measure I was defeated by a landslide. Seriously, it was a drubbing of major proportions. Over 62% of voters rejected the measure. That’s almost the opposite of what the City needed to approve it (66%). Wow. So thanks, people, for sending such a strong message. (Come celebrate with us at our victory party tomorrow - Friday - at Ozumo, 6:00 p.m.).

Now, of course it is disappointing that the voter turnout was so abysmal (less than 25%). But I also think that this speaks volumes about residents’ overall disenchantment with our leadership, as well as the ridiculousness of this completely unnecessary mail-in election in the first place. The fact that the other two measures, H and J, were also soundly defeated, pretty much puts the exclamation point on the statement: “You guys are idiots and your idea of solutions for our problems are ridiculous!”

Quan, of course, is already making excuses and threats, as predicted. She’s claiming that the Occupy situation took her focus off of campaigning. This statement is dishonest and absurd. Even prior to Batts’ resignation, a poll indicated that Measure I’s approval was at around 54%, nowhere near what was needed to pass. Then Batts resigned, and its chances of passing fell further. But to top it all off, the City’s handling of the Occupation was incomprehensible. All those people out there who hadn’t seen for themselves exactly how inept and wasteful our government really was with our money, suddenly had a front row seat. First, weeks went by with City leaders doing nothing while the downtown area was taken over by the homeless, bored college students, drug dealers, drug users, anarchists, left-over hippies and whatnot. Then Quan leaves town for some trip to D.C., and her City Administrator and interim police chief are put in charge of the raid on the encampment, which was a P.R. disaster, and cost a fortune, not including all the lawsuits and settlements that may result. But even worse, they let everybody come back to set up an even bigger and messier camp than before, meaning that the original raid was a complete and total waste of money. There is absolutely no disputing the fact that this was the biggest, fastest and most obvious waste of $1,000,000 most taxpayers had ever seen. It was staring them right in the face. So anybody who may have been on the fence about Measure I before, regardless of whether they loved or hated Occupy, would likely have voted no at that stage. If Quan doesn’t realize this, well, I don’t know what to say. Oh, and by the way, she apparently also doesn’t realize she’s not legally allowed to “campaign” anyway, at least not on City time.

Now she’s going around claiming that our police force is going to shrink even more, potholes won’t get filled, libraries will have to be closed, blah, blah blah. Like she’s going to get revenge on the voters that rejected her stupid tax. Of course, she could be talking about how now pensions will have to be reformed, salaries and benefits will have to be trimmed, non-essential social services like Kids First will have to go etc. But no, she’s not saying any of that.

Well, Jean better be careful with all of that doom and gloom revenge talk. Why? Because a recall petition has been filed! Her approval rating is at 15%! Not to mention that after Occupy, she has lost her credibility entirely.

In any event, we need to celebrate the small victories, because those of us that want true reform, accountability and a safer Oakland still have a lot of work ahead of us. See you tomorrow!

Time For A Resolution Demanding Occupy Oakland Camp Removal

2011-11-07T19:46:00.000-08:00

In response to my email yesterday, Pat Kernighan replied that she, and in her opinion, most of the other council members had voiced opposition to the ongoing encampment. Here is my response:

Pat:

Thanks for reiterating that you oppose the encampment. However, I indicated in my email that “many” public officials want to openly support the Occupiers. I didn’t say “all.” Notably, Nancy Nadel sponsored a Resolution that was the subject of the long meeting last week. Did you or any of the other council members sponsor a Resolution condemning the encampment, the violence, the blight, the loss to business, the assaults on police, the burden to taxpayers, and demanding an immediate removal of the encampment? No, you did not. Rather, you allowed the Nadel Resolution to be the sole topic of conversation. And many of our elected officials did, in fact, seem supportive of this absurd and overtly illegal Resolution (Ms. Kaplan and Ms. Brunner). And while Ms. Quan didn’t go so far as to endorse the Resolution, she certainly hasn’t taken any action to have the encampment removed, which is, in essence, a move in support of it.

Attached is a link to a blog posting about the apparent (serious?) discussion of moving the campers to alternative locations, including the Rockridge Safeway parking lot, or Woodminster. I sincerely hope that the email prompting this post was a hoax! Please, tell me it was a hoax! The City can’t seriously be considering these locations as an alternative? http://blog.sfgate.com/abraham/2011/11/07/occupy-oakland-update-schaaf-not-in-favor-of-move-plan/

To the extent that the Nadel Resolution is still on the table, and to the extent that the City would be insane enough to consider simply relocating the Occupiers to spread the misery around Oakland, let me emphasize that allowing the encampment to remain ANYWHERE on public space is blatantly illegal. As I have previously indicated earlier, the U.S. Supreme Court held years ago that camping is not protected speech. But regardless of that fact, the Resolution, on its face, endorses a particular viewpoint (I.e. the sentiment of the Occupiers), and proposes allowing the campers to stay indefinitely solely because of the (presumed) endorsement of this viewpoint by the City of Oakland. The Resolution, therefore, on its face constitutes content and viewpoint discrimination, which has repeatedly been denounced by the U.S. Supreme Court in multiple decisions as a violation of the Equal Protection Clause of the Constitution. See Police Dept. of Chicago v. Mosley (1972) 408 U.S. 92; Carey v. Brown (1980) 447 U.s. 455; U.S. v. Playboy Entertainment Group, Inc. (2000) 120 S. Ct. 1878.

“To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for the political truth.” Consol. Edis. Co. v. Public Serv. Commn. (1980) 447 U.S. 530, 538. And to allow the government to target (or promote) particular views or subjects permits the government to greatly distort the marketplace of ideas. Kenneth L. Karst, Equality as a Central Principle In the First Amendment, 43 Univ. Chicago L. Rev. (1975).

Viewpoint restrictions “pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion.” Turner Broadcast Sys. Inc. v. FCC (1994) 512 U.S. 622, 641. Most recently, the Second Circuit upheld summary judgment against a city for trying to require a $1 million liability insurance policy for a peace rally at a public park, but imposed no such requirement for a group espousing a different “viewpoint.” See Alexandra Coe v. Town of Blooming Grove & Village of Washingtonville (2nd. Cir. 2011).

Applying the law above, allowing the Occupiers to stay, or simply moving them around so that other districts are equally burdened with the blight and crime, or to ensure that their message continues to be “heard,” is blatantly illegal, particularly under the proposed Resolution, which proposes such accommodations for this particular far left-wing group. Are you prepared to offer such accommodations for the Ku Klux Klan, the Tea Party, the NRA, the Right-to-Lifers, or the Prop 8 Supporters? If not, prepare to get sued. And lose.

Today, I was contacted by somebody who was interested in retaining me for this purpose. Unfortunately, I can’t, due to existing conflicts with my regular job, but I’ll definitely try to refer her. By the way, I hope you have checked out the ACLU’s webpage - they already have you in their cross hairs. In the meantime, I urge you to immediately draft a resolution condemning the encampment and demanding its immediate removal.

Inside Occupy Oakland's General Assembly

2011-11-06T21:54:00.000-08:00

Below is an email that was forwarded to me earlier today. I am publishing it because I think it gives some great insight into who the "Occupiers" are and what they have in store for our City. What is remarkable is that the author (a well-known supporter of Mayor Quan's and housing advocate) considers "doable" options to include "taking over City Hall" and "displace the City Council," as well as "make the City pay for meals and housing" (presumably for the "Occupiers" during the rainy season).

Keep in mind that these are the people that many Oakland officials want to openly support. Yes, that's right. Our elected leaders want to welcome the Occupiers who are seeking to violently overthrow them. Is that not totally surreal? In addition, it appears that the anarchists and pro-violence/vandalism crowd are thoroughly entrenched in OO. I think it is unfair to characterize them as a "splinter group," since they are clearly a large faction, and among the group's leaders. Recent news reports have clearly identified members of the various organizing committees as among those who committed vandalism during the General Strike.

Here we are, on November 6, 2011, and still, the City has absolutely no plan on how to deal with any of this. Meanwhile, the OO camp is growing larger and more organized by the day.

James Vann describes this "takeover" by the Black Bloc-

Sent: Sat, November 5, 2011 5:22:12 PM
Subject: Developing Dilemma within Occupy Oakland
Developing Dilemma within Occupy Oakland

At the general assembly of Occupy Oakland last night, a task presented from the earlier facilitators' meeting was open discussion by the assembly -- arranged in small groupings -- on the question: "How to Grow Occupy Oakland into a Long-Term Sustainable Movement."

I was asked by a contingent sitting to my right to join with their group. I was soon aware that most of the people who constituted our small group were an interrelated faction. One early idea of one of the members was to take OO to the "next level" by "taking over vacant buildings." I injected my disagreement with the idea, that the remarkable success of the entirety of Wednesday's general strike day had already become subsumed in the media by the post-event "violence" of a small dissident contingent in breaking into a nearby vacant building. (An act that led to the day's first police appearance, a massive police descent in riot gear -- replicating the defamed Oct 26 assault -- complete with tear gas, flash-bang grenades, and bean bag projectiles. A three-hour riot through surrounding blocks ensued, with dissidents setting fires, breaking store windows, and widespread spray-painting of graffiti, ending in some 100 arrests and the serious wounding of yet another recently returned Iraq War veteran on the scene as an innocent bystander.)

Others of the small group chimed in, stressing the need for OO to set an example that other #Occupy organizations could duplicate by appropriating indoor space for continuation of movement activities through the oncoming rains and snows of Winter.
I suggested, in place of 'strike-day-like' events -- which can only be infrequently carried out -- that OO implement a series of neighborhood assemblies and marches in various neighborhood business districts throughout the city. This would have the effect of educating and recruiting new adherents to the movement from throughout the city. A recent transplant from a southern city told of the dispersed nature of that city, not suited to a centralized general assembly, but rather regional assemblies, and suggested that OO look into a regional-type structure.

During the report-back session, few small groups made what I considered positive or doable suggestions ("take over city hall;" "make city pay for meals and housing;" "displace the city council," etc). However, in what appeared an orchestrated tactic, each time a small group recommended "taking over vacant buildings," it drew the loudest applause. When there was any mention of "non-violent" actions, the dissident members, and their compatriots dispersed throughout, yelled out almost in unison, "diversity of tactics, diversity of tactics." It is clear that the dissident anarchist group of some 150 or so is deeply embedded within Occupy Oakland. (The morning's news shows gave the police breakdown of Wednesday's arrestees as about 25% from out-of-state, the majority from other cities and communities, and about 10 percent as Oakland residents.)

On returning home, I read an unidentified quarter-sized blurb that had been handed out during GA. The neatly printed blurb rationalized Wednesday night's illegal takeover as the "logical next step for the movement," separated the question of "violence against property" (tactical) vs "violence against persons (harmful), and proclaimed that "property violence" occurred only after the cops arrived to dispel them from the appropriated building. The blurb concluded with: "The point here is obvious: if the police don't want violence, they should stay the hell[sic] away."

Meanwhile, Oakland's embattled Mayor forcefully stated at Thursday night's special speak-back session of the city council that "immediate control of its violent members" is a primary condition for the Occupy Oakland encampment to remain in Frank Ogawa Plaza (nee Oscar Grant Plaza).

Clearly, the present situation poses an extremely serious problem for Occupy Oakland. Moreover, a wide disconnect exists between #Occupy goals and anarchists' ideals. The anarchists see #Occupy as a "resistance movement" requiring a vanguard to wage war against oppressive forces (the police). Alternately, #Occupy's basic objective is to expose the greed and attendant policies of Wall Street investors, bankers, and mega-corporations that extract more and more the wealth of the country, while the 99% and the needs of the many increasingly suffer with less and less -- and to cause policy and program changes to restore equitable wealth and resource distribution.

During "General Strike Day" actions, non-violent OO members who attempted to halt acts, being perpetrated by the anarchist group, of property destruction had their own safety threatened with claw hammers. The dissident anarchist faction is deeply embedded throughout and has strongly expressed its integration and inclusion as a legitimate part of OO.

Given the open nature of OO; its consensus decision structure; and the lack of endorsed "leaders," it is unclear how OO will deal with an internal situation that is structurally committed to an agenda of "resistance," inherently contradictory to the aims of the #Occupy movement. Unaddressed, this dilemma threatens the existence of at least Occupy Oakland itself. Clearly, #Occupy, and specifically Occupy Oakland, is faced with a dilemma on incompatible paths that at present seems only likely to continue diverging.

James E Vann,
Oakland, California

My Response To The Occupy Oakland Collaboration Resolution

2011-11-03T13:38:00.000-07:00

Dear Oakland Officials:

Last night's events bring home why the Occupy encampment must be removed immediately. The City has utterly lost control of the situation and cannot maintain a safe and orderly downtown area. Businesses and business opportunities have been destroyed. The downtown area had been blighted, and the blight is only worsening. It does not matter that the majority of Occupiers claim to be peaceful and non-violent. The fact of the matter is that the emcampment is blatantly illegal, a blight, and an attractive nuisance. For example, it does not matter that the majority of “sideshow” participants are there to watch and not engage in any illegal activity. It does not matter that a corner drug house does countless transactions, most of which do not result in violence. That is hardly the point. The point is that illegal activity must be shut down, period.

While there may have been 4500 demonstrators yesterday, it is impossible to say how many were from Oakland. Given that Oakland has a population of 400,000 residents, in all likelihood, less than 1% participated in the demonstration. Only 5% of City employees participated in the strike. What does that tell you? The vast majority of Oaklanders DO NOT support Occupy Oakland. While they may support or agree with some of OWS’s goals, this is completely different than supporting Occupy Oakland’s illegal encampment, which is only serving to sully whatever valid message there may be.

At tonight’s meeting, you are likely to hear from numerous campers who have been violating multiple City ordinances. You will hear from anarchists, communists, vagrants and people with no vested interest in the long-term welfare of Oakland. The law-abiding citizens of Oakland, local business owners, and others will likely be far too afraid to even come to downtown Oakland tonight, given the riots that occurred earlier this morning, the thought of having to wade around the encampment just to get to the meeting, the possible retaliation for speaking out against the law-breakers, and the almost guaranteed uncivil behavior during the meeting itself. (Hisses, boos, insults, threats etc.) This is the crowd you have been catering to, and it has got to stop.

The proposed Resolution is blatantly offensive on so many levels I don’t even know where to begin. “Unequivocally embrace” First Amendment rights? As previously mentioned, there are no First Amendment rights involved in camping, illegal soup kitchens, illegal Port-a-Potties, tagging, littering, or public urination. As for the 99% vs. 1% sloganeering, I am part of the 99% and I do not feel victimized by the economic system. Rather, I feel victimized by your lack of leadership. These people do not speak for me.

The Resolution recognizes injuries to the protestors, but provides no recognition whatsoever of the injuries to the taxpayers, the local small business, the injuries to Oakland’s public reputation, the injuries to police officers, or the insults and threats that they have endured, the damage to the lawn, the residents who have had to put up with excessive noise, the drivers and bus drivers who have been snarled in traffic, and the lost wages of employees and business forced to shut down.

The Resolution, in short, endorses the viewpoints of the 1% (the fringe, illegal campers), not the 99% (the hard-working, law abiding citizens of Oakland). The Resolution is insulting and embarrassing. Please reject it.

Occupy Oakland = Antitheestablishmenttotalitarianism

2011-10-30T20:22:00.000-07:00

So remember when you were a kid and learned the longest word in the dictionary? It was antidisestablishmentarianism. I don’t think I ever had a clue what it meant, but I looked it up recently and it had to do with a 19th Century movement to get rid of the Church of England as the official church in England, Ireland and Wales. But now I’ve come up with a longer word that I think is applicable to the Occupy Oakland “movement.” It encompasses so many beliefs and causes that it is basically just unfocused anti-establishment mania, with a lot of totalitarian hypocrisy built in. Like how they’re all “right to free speech,” but then try to restrict their message by forcing the media to “register” at some special tent. And shout down and boo Mayor Quan to prevent her from speaking at their “General Assembly.” And how they’re all for “equality” unless you happen to be a police officer, or a rich person. Then you’re just “pigs” and should just “die.” How they’re all about “peace” and “nonviolence” and then march through the streets chanting, “We are Lovell Mixon” (the rapist who shot and killed four Oakland police officers.). http://oaklandlocal.com/article/occupy-oakland-saturday-night-march-takes-it-%E2%80%98-hood%E2%80%99-mostly-avoids-confrontation-ongoing-ana

Well, these “Occupiers” have really pissed me off, for a whole variety of reasons, and I’ve got a lot to say. As you may know, there is a City Council meeting on Thursday to discuss the whole situation, and I, as well as many others, have no interest in listening to or being around a bunch of (mostly) uninformed, immature anarchists, communists, homeless and/or mentally ill people, cop haters and Alex Supertramps ranting and raving about their “rights” to “decolonize public property,” take over Frank Ogawa Plaza and turn it into their personal garbage dump and litter box. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/10/28/BANB1LNK52.DTL

So instead, here’s my open letter to the Council and other City officials, which I will be forwarding to them. (Note that this is the third email I will have sent them on this topic). I urge all of you who have an opinion on this to do the same. Our current system, riddled with faults as it is, is still better than the Occupiers‘.

Dear Oakland Officials:

As you are aware, from the beginning of the Occupy Oakland encampment, I urged you to act quickly to enforce the law and not allow the campers to remain. I warned you of the clearly dangerous conditions that existed and were increasing at the "camp." I specifically stated that the longer you allowed this to continue, the harder and more dangerous it would be to get these people to leave. Had you taken the approach by many other cities, and prevented the people from staying overnight in the first place, none of this would be happening. I warned you of the inevitable claims of personal injury and police brutality, and negative publicity when enforcement finally arrived. I warned of the escalating costs.

But Mayor Quan delayed, and the campers became more emboldened. And when the City finally did take action, it appeared none of the concerns about lawsuits, injuries, police brutality claims, or negative publicity were taken into consideration. The actions of last Tuesday backfired on the City, its citizens, its business owners and its reputation worse than anyone apparently imagined. I don’t pretend to be an expert on protestor psychology, but surely that should have been taken into consideration before planning the actions, in the same way that psychology is necessary to negotiate with hostage takers and the like. Moreover, if Oakland is legally precluded from using tear gas or non-lethal projectiles, how could it be that other agencies were not informed of these restrictions?

But then to make matters even worse, the Mayor followed up on her poorly orchestrated police action with a complete reversal of strategy, showing an utter lack of leadership. If Mayor Quan, the City Administrator’s Office and the Police Chief felt a massive police presence was required to quell the disturbance and enforce the law, then so be it. That decision needed to be defended both before and after the actions taken. But instead, our wishy-washy Mayor, influenced by an angry mob made up largely of anarchists, communists, non-Oaklanders, homeless and mentally ill people, rather than the actual constituency, decided to let the Occupiers put their tents right back up where they were before, with impunity. So now we have umpteen potential tort claims against the City, a seriously injured veteran, a massively damaged reputation world-wide, local businesses on the brink, and a tab for likely over $1 million, and it was all for NOTHING? Are you kidding me?

By allowing the Occupiers to put back their tents, the City administration entirely lost its credibility. It issued eviction notices and warnings, and cleared them out, and now they’re back, with no consequences. Any parent will tell you that this approach is counterproductive. Just how do you expect to get a handle on the situation now?

So, I guess that’s where I suppose you’re at with this Council meeting. A choice between making them leave again, or doing nothing, and letting them stay. I just want to put in my two cents and reiterate my request that you make them leave. And by leave, I mean, follow all applicable City ordinances. So if they want to protest and exercise their free speech rights during the day, and read the Communist Manifesto non-stop from 8:00 a.m. to 10:00 p.m., of course they should be able to do that. But no more tents, overnight camping, improvised soup kitchens and all night bongo drum and pot parties. Why? Because that is not protected speech! As the U.S. Supreme Court held in 1984, in Clark v. Community for Non Violence (1984) 468 U.S. 288, camping is not speech. It is not protected by the First Amendment. And had the City administration made this clear to the campers and the press and the community from the outset, perhaps we would not be where we are today. But instead, there was way too much talk about acknowledging “free speech” rights, when this was never even the issue. Particularly given the fact that had the “speech” been to support the Tea Party, the recall of Jean Quan, or some other cause traditionally “progressive” Oakland leaders don’t think kindly of, the protesters would have been cited and removed faster than Sanjiv Handa can say “East Bay News Service.”

The restrictions at issue here, regarding camping, noise, health and safety, were all fully enforceable by the City, and should have been enforced from the get-go. As Willie Brown opined in his column earlier today, when you let one tent stay, it soon becomes two, then five, then 10, and before you know it, it looks like a refugee camp meets Burning Man. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/10/30/BAE41LNOTT.DTL

It becomes an area most people don’t want to come to. It drives away customers for small businesses. It drives away potential business that might want to move in. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/10/28/MN951LNTGB.DTL

It in turn reduces our tax base, and makes the City that much poorer. And that’s not even mentioning the ongoing threats to public health and safety that will only multiply, creating more potential liability and further damaging Oakland’s reputation. In short, it is a terrible, terrible strategy for the long-term welfare of our City.

Moreover, it is an insult and a total slap in the face to all of the law-abiding citizens of Oakland. When we stay an extra minute in a metered parking space, we get slapped with an $80 fine. Which we pay. And as you are undoubtedly aware from the scathing Grand Jury report, when homeowners on the brink of foreclosure leave a few toys strewn in their yard, they get cited for blight and a lien for thousands of dollars is slapped on their house. Is that “fair?” Is that “equality?” No, it is not. The law is the law. You were elected you to enact the laws, and you were elected you to enforce the laws. And those laws need to be enforced regardless of whether the violators are rich or poor, black or white, young or old, Republican or Democrat, from East Oakland or the Hills. Regardless of whether the laws involve parking violations, blight in somebody’s yard, or blight in front of City Hall. If you want to support the value of equality and equal enforcement of the law, the campers must go. How you make that happen, I leave up to you. That’s why you have this job.

Measure Y Oversight Committee To General Public: Screw You!

2011-10-26T20:00:00.000-07:00

So this afternoon I get a phone call from the Chairperson of the Measure Y Oversight Committee meeting, Jose Dorado, letting me know that the committee is meeting tonight (Tuesday) to hear the “pros and cons” of Measure I, and he wanted to make sure that our group, Oaklanders Against The Parcel Tax, was invited. I told him that the law precluded the MYOC from endorsing any position, pro or con, to which he responded that he was already told that by Assistant City Attorney Mark Morodomi, and he had modified his proposed agenda language accordingly. Now, he claimed, the issue was essentially, what would be the impacts on Measure Y programs if Measure I passed or didn’t pass? However, he admitted that the modified agenda item had not been posted. So, I said, "well, if it wasn’t posted, then you can’t meet. It’s that simple." He acknowledged that Mr. Morodomi told him the same thing, but they were going to meet anyway.

I then explained that the purpose of the Brown Act is to invite public participation, and to ensure that the public knows what its government is doing, and that what he was doing was against the letter and the spirit of that law. He insisted he knew this and was going to meet anyway. I told him that under these circumstances there was no way I could dignify the meeting with any presentation from our group. Which probably suited him just fine, given that he was appointed by Jean Quan and the whole purpose for him was to proselytize to his small herd of sheep. Except they’re really small - less than 10 of them. And the meeting isn’t on KTOP. And nobody wants to come to City Hall tonight anyway, since there’s another Occupy Oakland riot going on. But whatever. He just totally didn’t care about any of this.

I was unable to actually contact any City officials to discuss the matter, other than Claudia Albano, who is now the Assistant City Administrator in charge of Measure Y, who assured me that she had told Mr. Dorado exactly the same thing, but couldn’t stop him from having the meeting. I told her that the meeting was scheduled to take place at City Hall, and since this was an illegal use of City Resources, she could just lock the door and make him meet at some local bar. She said she’d think about it.

So there you have it, folks - a public advisory committee that defies the authority of the City Attorney’s Office and the City Administrator’s office, as well as the need and desire for public participation. Pathetic.

Electioneering And Brown Act Violations Galore At City Council Meeting

2011-10-24T21:55:00.001-07:00

So last week’s Council meeting was quite a doozy. First, Desley Brooks made a great argument about why the Council shouldn’t even consider the Resolution on how to allocate the Measure I funds, because it was illegal “electioneering.” It was so great, in part because it practically mirrored the arguments outlined in my earlier letter. Then she asked the City Attorney on the dais (didn’t recognize her) for a legal opinion on whether it was legal to consider the resolution, given the obvious use of City resources, the timing of the resolution (the week ballots were being mailed out) and the famous California Supreme Court case of Stanson v. Mott. The City Attorney admitted she was “unfamiliar” with that case, which totally floored me, because anybody representing public entities should know that case, but whatever. Not too impressive. In the end, they ended up passing on the matter so that the City Attorney could scramble around and do some last minute legal research.

In the interim, we were treated to the most blatant violation of the Brown Act I had ever witnessed. The dispute revolved around who was going to get appointed to the Port Commission: somebody named Margaret Gordon, or somebody named Jakada Imani. To be honest, I know next to nothing about both of them. But the Imani guy brought over 60 speakers, which I guess the Council didn’t want to listen to because they had already made up their minds. Which, of course, really defeats the whole point of public comment, doesn’t it? It was so completely obvious that they had already discussed the matter behind the scenes, in complete violation of the Brown Act, and decided the Imani guy had it in the bag, and that’s what Larry Reid said, telling everybody they could save themselves the trouble. So they all yelled and screamed with glee and then left, leaving us and the Gordon supporters just standing there with mouths agape. (Since then, I have heard the City admitted they blew it and now they have to do the vote over, but it really exposed the whole council meeting thing as totally farcical).

So then the Resolution came back for discussion, and everybody used their minutes to basically advocate for their position on the actual Measure (totally illegal), including Quan, who basically launched into a total commercial for the damn thing until Desley finally shut her up. But a few points were scored. Desley and Ignacio made it clear that it was absurd to be considering a resolution allocating funds the City had not received, and was not likely to receive, not to mention illegal electioneering. Even Jane Brunner said it didn’t pass the “smell test” and voted against it. Pat Kernighan admitted that it would be a “miracle” if the parcel tax passed, and both she and Libby Schaaf admitted over and over that the Resolution is not binding.

So there you have it, folks, a non-binding Resolution to allocate funds that the City almost certainly will never see. All staged, pretty much like a commercial, in violation of the law and common sense. Now get and vote NO on Measure I.

City Council To Consider Phony and Illegal Resolutions On Tuesday

2011-10-16T21:37:00.000-07:00

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

When It Rains It Pours: Measure Y Tax Doubles and Chief Batts Quits

2011-10-11T22:25:00.000-07:00

For you property owners out there, you probably got your tax bills today, or will soon. On the bill you will see two entries for “Violence Prevention Tax” - one for 2011, and one for 2012. The first is for $91.38, the second for $92.62. So even though the police force is dropping, your tax is still going up. And why are there two entries on your bill? Because in 2010, they laid off 80 officers, didn’t “appropriate” sufficient funds to justify collecting the tax, and couldn’t legally collect the tax. So it wasn’t collected last year. But then over 66% of voters approved Measure BB, which permitted the City to continue collecting the tax, no matter how small our police force got, and also permitted the City to collect the tax retroactively. If you didn’t vote for BB, good for you. But if you did, you don’t have any right to complain. Oh, and more bad news - our ad valorem tax rate went up again as well.

I am sad, but not surprised, to see Chief Batts announce his resignation today. While he was fairly diplomatic in his comments, I think most of us understand why he just couldn’t take it anymore. At last week’s council meeting, after speaking out in support of youth curfews, expanded gang injunctions, and anti-loitering ordinances, an angry mob of gangsters, wannabe gangsters, and their friends and relatives crowded the chambers and loudly, rudely and angrily booed, hissed and mocked him and anyone else who spoke out in favor of these potentially game-changing measures. He had to just roll his eyes and think to himself, “who are these animals and why should I care if they or their relatives get popped in the street? They are not ready for civility, peace and respect in their neighborhoods. “

What is unfortunate, however, is that this loud, angry mob does not actually speak for the majority of Oaklanders. And yet four of the Council members allowed themselves to be swayed by the mob mentality; Quan broke the tie and essentially killed the measures by sending them back to committee. Notably, the mob was appeared to be mobilized largely by Michael Siegel, son and legal associate of Dan Siegel, Quan’s personal legal advisor. Of course.

And that was just the icing on the cake, after Quan laid off 80 police officers. Batts announced he needed 925 officers to get the job done. Now we have 650, and the number is dropping every month. Quan could have proposed a parcel tax that would have dedicated all of the funds toward increased police staffing. But instead, she put forward a proposal that dedicates none.

OPOA’s juvenile tactics certainly didn’t help either. Batts recently announced a policy prohibiting profanity. OPOA union president Dom Arotzarena publicly scorned the policy, claiming that officers couldn’t get their jobs done unless they were allowed to cuss in the workplace, or to citizens, for fear of seeming “soft.” Other officers joined in mocking the new policy. Excuse me? A force that is still reeling from the humiliation of the Riders scandal thinks its appropriate to direct profanity toward citizens? I don’t care if the suspect is armed, dangerous, and a confirmed sociopath - there is no research showing that using the “F” word will somehow diffuse the situation. Again, Batts must have read Arotzarena’s quotes in the Wall Street Journal, rolled his eyes and thought, “WTF?” (But he would have the decency and professionalism not to say it!)

If there is one silver lining to this cloud, I hope that Batts’ departure is a wake up call. When the City Attorney resigns, calling the leadership “morally corrupt,” and when the police chief resigns shortly thereafter, accusing the leadership of tying his hands and not allowing him to do his job, citizens need to realize who is running this City, and that it will never get any better unless they are voted out of office and replaced with individuals with the courage and integrity to make public safety our number one priority, even if it means making a the criminal element, and the supporters of their “civil liberties,“ unhappy. Our leadership has catered to that element for far too long, and the proof is in the pudding - it ain’t working.

Please Support No On Measure I Campaign

2011-10-10T11:49:00.000-07:00

Throughout my battles with the City on Measure Y, I occasionally got offers to help financially. Fortunately, I was able to support my efforts with my own resources. But now I am asking for your help. As you know, I am now part of Oaklanders Against The Parcel Tax. The proponents of this new irresponsible tax are well funded. Of course, they have the support of the majority of the Council, the Mayor, and most of the unions. But our effort is truly grassroots and we need all the help we can get. Please help support fiscal responsibility and help us defeat Measure I by sending your contributions to:

Oaklanders Against The Parcel Tax
360 22nd Street, #240, Oakland CA 94612

or oaklanderagainsttax@gmail.com to join our mailing list, and find out how you can donate or volunteer!

FPPC# 1341162

Why I Oppose Measure I

2011-10-06T12:35:00.001-07:00

In 2004, Oakland officials put Measure Y on the ballot. Jean Quan, then a City Councilmember, “guaranteed“ that Measure Y would give us 63 additional officers, for a total of 802, for 10 years. Quan was quoted by the Oakland Tribune at the time: “…the money raised by Measure Y will be used will be used to expand the department to 802 officers…All of us have to run for re-election – none of us would break such an obvious promise.“

Seven years and three lawsuits later, after having received approximately $120 million from the generous taxpayers who approved Measure Y, we have a total of 650 officers, and the force is shrinking every month. Obviously, they broke their promises. And this isn’t the only broken promise on Oakland’s record. Measure Q promised that all branch libraries would be open six days a week. Today, none of them are, but the tax is still being collected.

Now, City officials are once again asking Oakland’s already financially strapped taxpayers to approve yet another parcel tax. Measure I will cost Oakland homeowners approximately $400 each over the next five years, and renters will also be subject to the tax. To their credit, Oakland officials have learned something from the failures of Measure Y. They learned that they are incapable of keeping their promises. So this time around, they aren’t making any promises, which you will see if you read the actual ballot measure. Measure I is a $55 million blank check.

The propaganda in favor of the measure is business as usual, however. Knowing full well that political flyers aren’t legally binding, proponents are trying to convince voters that the approximately $11 million annual tax will help “restore” a whole panoply of services. But the actual language of Measure I does not provide for improvements in any public services. It does not include any provisions for additional police, improved roads, increased library hours, or additional park maintenance. It is a blank check, a general tax disguised as a special tax, with even less oversight and accountability than the failed Measure Y.

Proponents blame the “global recession” for Oakland’s financial problems. Except that this isn’t true. Oakland was claiming it was broke and needed Measure Y taxes back in 2004 - the height of the economic boom. Supporters are also trying to convince taxpayers that they need to do their “fair share” by paying more. Except that we already pay far more in property taxes than most other cities in California. In fact, on a $500,000 home, Oakland homeowners pay over $1700 more a year than those in San Francisco! And while most union concessions are for two or three years, this tax lasts for five, which is not “fair” either.

Supporters of the new tax are the same City officials who have mismanaged Oakland’s finances for years - the same leadership that Oakland’s own former City Attorney recently called “morally corrupt.” Measure I will do nothing to solve Oakland’s fiscal mess, or to address the fact that Oakland is over $450 million in debt for pension obligations it can’t afford. Oakland has no long-term plan on how to create fiscal sustainability, and this tax is nothing but a Band-aid on a gaping wound. Vote No on Measure I.

Receipt of COPS Grant Highlights City Officials' Misleading Statements About Measure I

2011-09-28T16:04:00.000-07:00

On Wednesday, City officials proudly announced receipt of federal funding that will help pay for 25 additional police officers. While this is good news, the fact that Mayor Quan is trying to parlay this into support for her misguided parcel tax, Measure I, is not.

In her recent newsletter, Quan claims that despite the multi-million dollar, three-year grant, financially strapped Oaklanders should still be asked to pony up $11 million a year for the next five years. She mentions the need for additional police academies at $4 million each. But nowhere in Measure I is there any reference to additional police academies. Nowhere in Measure I is there any reference to police staffing, or hiring of any additional police officers. The fact of the matter is that Measure I is just the City asking us for a blank check. Keep in mind that with this COPS grant the City is obligated to use those additional officers for specific types of duties (e.g. gang prevention and intervention). The feds have "strings" attached to the funds. But this new parcel tax? No strings whatsoever. Don't buy Quan's claims of new police academies. They are just as false as her claims under Measure Y that we would have 803 police officers from 2004 until 2014.

The fact of the matter is that the City has no plan at all for how to spend the money it is asking for. This is putting the cart before the horse. The City needs a workable plan, and needs to articulate exactly why it needs the money, and include real, meaningful guarantees for how those funds will be spent. Voting NO on Measure I sends a message to City Hall that long-term planning and accountability are critical to the long-term financial stability and success of Oakland. Vote NO!

Green Party Urges Rejection of Measure I

2011-09-20T11:44:00.000-07:00

Green Party Position on Measure Parcel Tax:

This is not a time to play games. This parcel tax
is a carefully crafted political game. Many if not most
of the participants in this game have little awareness
about how unreal and cruel the elements of the
game are, actually. To start with, if this parcel tax is
passed, residents of Oakland will be paying for five years but
the budget benefit to the City would end after about a
year. At that point all the departments and
programs that are supposed to be “restored” will
fall back into jeopardy – but residents will be
paying for one year’s service for four more
years. It goes without saying, that those with the least –
both in terms of resources and political voice -
will pay the most in either direct tax payments,
and/or increased prices and fees, and/or increased rent.
After the year of “restoration,” all residents
would be presented with service cuts since it is
unlikely that enough people could be fooled twice. What
the Mayor and most of the City Council is asking us to do
is not a solution that is worth the pain.

This tax emerges out of the divisions in
Oakland’s politics. The Council was not, even,
unanimous in its vote to put this on the ballot. The most
controversial Council Member, Ignacio De La
Fuente, objected to this being put on the ballot. If the
money from this tax could have been directed at police
services without any loss to OPD of resources
from the rest of the General Fund, he would have been the
leader of putting this on the ballot. This is another
wrinkle in the political debate that more
recently intensified over Mayor Brown’s Measure
FF-GG-HH-II, then again in Council Member Nadel’s
Measure R, and then again in Nadel’s and De La
Fuentes’ Measure Y. The lesson of the series being that
residents from the loudest communities want more cops but
they are unable to convince a minority of
residents to pay for more cops without a light sprinkling of
youth and, nominally, crime prevention programs. That is
why this parcel tax measure describes the
expenditures “restored” so generally.

For those who believe that we must do something
rather than nothing, let us tell you that that is not the
choice. Undeniable the City’s budget needs major
restructuring. When a majority of Oaklanders
simply want to hold on to what (they consider to be)
critical City services, those resources should be
internally available. That is the meaning of standing on your
own; what we expect of all Oakland residents so that we
do not pull each other down. Our livelihood
should be dependent on the efforts and policies of those
who love Oakland, not on what corporation we could entice
here, what stadium we can build, or on pushing
residents out of Oakland through gentrification. The
Mayor and the majority of the City Council lack the
boldness of leadership required to restructure
the City budget to meet the priority needs of Oakland
residents. They do not know how to do it and they will
not learn to do it in a year.

The Green Party believes that the Mayor and the
Council leadership deserve no further chances. Oakland
residents will have to make this happen the difficult
way. Vote NO on Measure I, the Parcel
Tax.

(From local Green Party web site: http://www.macleay4mayor.org/html/oakland_greens_meeting.html)

Oaklanders Against The Parcel Tax

2011-08-30T22:26:00.000-07:00

Sorry for neglecting the blog. I've been busy helping put together Oaklanders Against The Parcel Tax, a group of community and NCPC leaders, homeowners, renters, public safety activists, and others working together to defeat the latest parcel tax proposal - Measure I.

Briefly, just to summarize where things are now: the Council approved putting the tax on the mail-in ballot, with the deadline for submitting votes being November 15, 2011 It's the same ballot proposal that I discussed in an earlier post (with the changes that resulted from my previous objections!). An $80 a year tax for homeowners, with a provision for a pass-through to renters, for five years, that promises absolutely nothing. No additional police, no improved services - nothing! And even less oversight than Measure Y has. I won't belabor all the many reasons to vote against the new tax here - just check out our new website at http://noonoaklandparceltax.blogspot.com, and pass on the link to any person or group you think might be interested. (You can also just click on the link on the right-hand column of this page).

Why The Union Concessions Are Not a "Fair Share"

2011-07-26T21:55:00.000-07:00

Tonight, the City Council approved the tentative agreements reached previously with all of the unions. Most council members applauded the unions’ willingness to make significant concessions to help balance the budget. Now, if I actually had copies of the agreements, I’d be able to give you a thorough analysis of the issues. Unfortunately, the City has consistently refused to provide copies. While they finally made available the staff reports analyzing the main terms of the agreements on Friday, the actual agreements are still secret. Outrageous. Particularly considering that, according to CM Schaaf, the staff summaries leave out some critical facts.

But even with just the summaries, I can tell you that most of the “concessions” are not significant, and are not long-term. For the most part, the concessions are temporary only. They only last for the duration of the agreements (i.e. two to four years). So they do nothing to address the long-term, structural problems with Oakland’s finances. Which means that in two to four years, we’ll be back here with the same financial woes. Actually, probably worse woes (as explained below).

Not only are they temporary, but these “concessions” aren’t really “concessions.” Rather, they are trades. For example, most of the MOUs call for furlough days. Which means that the employees will get lower overall pay (but not benefits) for a couple of years. But in exchange, the employees don’t have to work on those days. So their actual daily or hourly rate isn’t getting cut. And, of course, the real losers are the citizens, who don’t get the value of their services. And we don’t get anything in exchange for the worse service. On the contrary, we’re being asked to pay additional taxes for the privilege of suffering through ever worsening service cuts.

So let’s go through the summaries of each union contract in detail. The most publicized was the MOU with OPOA, the police union. They did make a long-term, significant and meaningful concession - a 9% contribution to their pension. That is not a temporary concession, and it will save the City between $6 and $8 million per year. In addition, the City negotiated a new two-tiered pension system. Existing employees continue to get 3% at 50; new hires, however, will have to work an additional 5 years to get the same pension benefit. The summary doesn’t tell us how much money that will save, however. And in exchange, the OPOA got some significant benefits - a no-layoff/no furlough guarantee. Now, I’m not opposed to no layoffs. After all, the force has already been decimated through the last layoff and attrition. But this protects existing officers, not citizens, because the City has already stated its intention to allow the force to continue to drop through attrition. I wish OPOA had negotiated an actual staffing requirement. And then there’s the 4% pay increase that the police will get in 2015. How is the City going to pay for that?

Next is the firefighters’ contract. They agreed to an 8.85% salary reduction for FY12-14. But this is not the same as the 9% contribution by OPOA. Why? Because the 9% contribution is permanent. This pay cut for firefighters is temporary. At the end of 2013/14, firefighters’ insane pay will go right back to where it was before. Why do I say their pay is insane? Because the last time they had a recruiting drive, before the recession hit, there were hordes of people applying for a smattering of jobs and it was a total zoo. Any job that has people camped out in sleeping bags for a chance at “winning the lottery” is clearly overpaid. http://articles.sfgate.com/2007-12-04/bay-area/17272555_1_firefighter-frank-ogawa-plaza-oakland-fire-department

Firefighters are also agreeing to a new two-tiered pension system, where new hires will have their pension based on the highest three year average. The City is not disclosing how much this will save the City. Lastly, firefighters will temporarily give up two shifts of vacation, and there will be rotating closures of two companies for two years only. According to CM Shaaf, one of the conditions of this concession was not included in the staff summary - i.e. that firefighters get guaranteed full staffing through 2017.

With respect to Local 1021, members are being asked to pay an additional 4% toward PERS. The staff summary does not provide whether this change is permanent or temporary. In addition, the MOU calls for a new two-tier retirement system. However, the main “concession” appears to be “mandatory leave without pay” days, i.e., furlough days. Not only will the employees not have to work on these days, but they also were able to negotiate numerous language/verbiage changes to their contract, including the grievance procedure, the contract out provisions, comp time, vacation time, sick leave and other provisions. All of these language changes were negotiated for the benefit of the union, not the City.

Local 21 also agreed to a two-tier retirement plan (with no specific savings described) and otherwise, agreed only to 12 furlough days. Local 1245 agreed only to 12 furlough days.

Real and meaningful concessions would have included an across the board pay cut (without a comparable cut in hours); a requirement that employees work a full workweek (40 hours versus 37.5 hours); and a cap on health benefit premiums. But the City got none of those things. I doubt they even asked.

“Fair share?” Well, to figure out if City employees are giving up their “fair share,” one would need to look at what their total compensation (benefits, salary, hours etc.) looks like compared to other public and private sector employees performing similar jobs in the Bay Area. And one would also need to look at what the City can actually afford. These are the only factors which, in my mind, would address what is “fair.” Calling a 9% savings, achieved through temporary savings, where the employees actually get to work less, a "significant concession," is absurd, particularly when taxpayers are being asked to pay more money for less services. Not to mention that the parcel tax proposal is for five years, and the employee concessions are mostly only for two years. What’s “fair” about that? But more on the proposed parcel tax later.

How Oakland Won - The Charlie Sheen Way

2011-06-13T20:23:00.001-07:00

After three and half years of litigation against the City of Oakland over Measure Y, I have decided not to appeal the latest decision. As you may recall, the judge issued a tentative ruling in favor of the City on all causes of action. The lead claim I made was that the City deliberately failed to fund police academies, and continued to collect Measure Y taxes, prior to the Measure BB amendment. I also alleged that the City failed to staff the Measure Y funded crime reduction team positions, and deployed Measure Y funded Problem Solving Officers away from their beats for months at a time. Also included were claims that the City repeatedly failed to respond to public records requests in a timely manner, and that the Executive Director of the Public Ethics Commission failed to process my complaint within the timelines mandated by the PEC’s own internal regulations.

Notably, the City never disputed the main facts. They pretty much had to admit they didn’t properly fund police academies. They couldn’t deny that the size of the police force plummeted, and that this was a deliberate decision designed to save money. Their defense was that the language of Measure Y didn’t specifically require funding for academies, never mind that without them, staffing numbers couldn’t be maintained.

Nor could they deny that the CRT and PSO positions weren’t filled. Their defense: the positions were filled by the time we went to trial. They also could not deny that they failed to comply with the PRA. Their defense: I submitted a lot of requests, and they gave me a lot of documents, which I eventually got, so I should just quit griping. With respect to the PEC issue, they claimed that the PEC eventually did hear my complaint, and any violations of the internal regulations were “de minimus.” I don’t see how a six month delay is “de minimus,” but anyway, for whatever reason, the judge, without specifically addressing that the facts were overwhelmingly in my favor, and that the intent of the statutes was overwhelmingly in my favor, still ruled against me.

I could appeal. But then I have to consider, what for? A $90 tax refund? By the time we got a decision, Measure Y would be almost expired anyway. The lost services from the officers we were promised, but never got, can never be recovered. The lost lives, lost security, and lost property due to these violations, can never be recovered. Also, the costs to me, in terms of my time and my money, have been enormous. I have spent hundreds of hours and thousands of dollars of my own money, and at some point, I just have to cut my losses.

Not that my battles have been entirely in vain. The PEC has been holding hearings on improving access to public records, and I am hopeful that by the end of the year, new policies and procedures will be in place to prevent the types of violations I was seeing on a regular basis. The City has had to conduct mandatory audits as a result of my first lawsuit. I am also hopeful that my litigation, and the publicity surrounding it, has helped inform Oakland residents about the numerous past violations and broken promises, and will serve as an incentive for them to reject the next parcel tax coming down the pike, which in turn should help force the City into making meaningful, structural changes to address the budget crisis. I also hope that the thousands of hours the City has had to spend in attorney and employee time will also make them think twice before violating parcel tax measures in the future.

And for the record, I know I’m right, the court’s decision notwithstanding. The fact that the Pope rejected the notion that the earth revolved around the sun did not make Galileo or Copernicus wrong. They were vindicated by history in the end. Can the City of Oakland claim “#winning”? Pretty much the same way Charlie Sheen can. The proof is in the pudding. If winning means a police force half the size of what it should be, a skyrocketing murder rate, decimated community policing, looming bankruptcy, a loss of trust from the electorate, and likely rejection of any future parcel tax measures, then yes, they can claim victory. But I don’t call that victory. And what does it say when the City Attorney resigns in the middle of his term, calling City leadership “morally corrupt?”

In addition to quoting this year’s most notorious "#winning" loser, I’ll conclude with two additional quotations that came to mind as I temporarily lay down my sword:

“I would rather fail in a cause that will ultimately triumph than to triumph in a cause that will ultimately fail.” - Woodrow Wilson

"It is not the critic who counts: not the man who points out how the strong man stumbles or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes up short again and again, because there is no effort without error or shortcoming, but who knows the great enthusiasms, the great devotions, who spends himself for a worthy cause; who, at the best, knows, in the end, the triumph of high achievement, and who, at the worst, if he fails at least he fails while daring greatly, so that his place shall never be with those cold and timid souls who knew neither victory nor defeat." - Theodore Roosevelt

She's Baa-aaack

2011-05-18T20:25:00.000-07:00

Remember my post a couple of weeks ago comparing the parcel tax proposal to Glenn Close’s character in “Fatal Attraction?” Well, she’s coming at us again with the meat cleaver. Put it tentatively on your calendar for June 21 (first reading) and July 5 (final action).

Lost among all the brouhaha over the gang injunction hearing at Tuesday night’s (Wednesday morning’s) meeting was the fact that the council once again took up the subject of scheduling a special election to vote on the proposed parcel tax. Given the wee hours of the morning, there wasn’t extensive discussion of the matter, but the Council did agree to hold two meetings to discuss whether to hold a special election to consider the $80 tax. The fact that the special election would cost around $800,000 was brought up. Also mentioned was the fact that the election (if any) would likely be scheduled in November.

As I noted earlier, the budget needs to be approved by the end of July. So anybody with half a brain would realize that a parcel tax election in November is not going prevent whatever cuts need to be made to balance the budget between now and the end of July. So what exactly is the urgency for a special election? Never mind the fact that even if the tax were to pass (still unlikely), the tax wouldn’t be collected until the end of 2012? These finer points are obviously lost on the few speakers who showed up to support the concept - people who have obviously never met a tax that they didn’t want to pay. No speakers showed up to argue the other side - but they’re probably all too smart to stay up till 2 a.m.

Speaking of smart people, John Russo knows when to make his exit. Check out this video interview with him by Zennie Abraham. http://www.sfgate.com/cgi-bin/blogs/abraham/detail?entry_id=89211>a=commentslistpos#commentslistpos

He goes into a fair amount of detail about why he’s leaving. It’s because he has fundamental moral differences with the way the leadership of Oakland is dealing with two big issues - public safety and the budget. He explains that because of his personal feelings and opinions, he’s the wrong person for the job. And he’s right. A client deserves “zealous advocacy.” And when your client is an incompetent, unscrupulous scumbag, and you have moral differences with that, you need to tell them to find another lawyer. (As I myself told him during our most recent chat, "you might as well be representing Phillip Morris!") He also goes into a fair amount of detail about a subject I covered in my last post (about how much Oakland’s debt is already costing homeowners) and how much it is likely to cost us in the future, about how Oakland’s financial “plans” are leading us very clearly down the path to bankruptcy.

So I ask you, when the sitting City Attorney publicly announces he’s quitting, in the middle of his term, because he thinks the City is so financially irresponsible that he can barely find the words to describe it, is this the kind of cause you want to throw more money at in the form of a parcel tax? Or will you join me in my continued fight to demand fiscal responsibility?

Quan's Budget Option C Gets An F

2011-05-09T22:48:00.000-07:00

At last week’s Council meeting, Quan introduced three alternative budget proposals. http://www.abetteroakland.com/three-budgets-for-oakland/2011-04-29. The one she was pushing for was, of course, Plan C, the one that called for yet another parcel tax. For anybody tempted to actually download and read the budget proposal, save yourself the trouble. It is garbage. First of all, the majority of the documentation is just filler. I mean, does the Council really need to know the history of Oakland going back to the Stone Age? You think I’m joking, but it’s in there. Looking at this budget proposal, you’d really think our politicians hadn’t evolved much since cave man days.

Notably, the proposals fail to contain any meaningful information about what is necessary to balance the budget, the procedures necessary to implement the various cuts and revenue generators, the relevant timelines for all of this, and how likely or feasible these things are to happen between now and July 1. For example, Quan proposes straight cuts to various departments. How are the departments supposed to cut their budgets, when they’ve already been severely cut? Layoffs aren’t conducted at the department level. Neither are pay cuts. All of these things require action at the top, not the department level.

Completely lacking from the proposals is any discussion of what is really necessary to balancing the budget - long term, structural changes to public employee compensation, including pensions. Short-term fixes, like furlough days, obviously don’t address any long-term problems. And, they result in lost services to the residents. We need better services (or at least the same services) for less money, and the only way we can do that, long term, is with compensation cuts. And compensation cuts generally require negotiations with the unions, and negotiations with the unions take a long time. Shouldn’t the proposals include a detailed discussion of what proposals for cuts have been made to the unions, where we are in those discussions, and how likely those discussions are to be resolved by July 1? Yes, but there is none. In fact, the unions are complaining that they’ve never even heard of Quan’s proposals!

As for the parcel tax, the proposals should include a detailed discussion of the timing of tax collection. Because it just won’t work, no matter what happens. Even if the Council were to approve a parcel tax to go on a special election ballot, that couldn’t happen for at least another three months, by law, which puts us into mid-August. That means there is no way that the tax could be included on the November tax bills. Which means that the City would have to borrow around $11 million to get us to next November. What is that going to cost? And then homeowners would be saddled with a double tax bill in 2012. You’ll get a taste of what that feels like this coming November, when you see a double tax bill for Measure Y, thanks to BB passing last November. Shouldn’t there be a discussion about all of this in the proposals? Yes, but it’s not there either.

Now, the unions are already whining about how everybody has to pitch in to help the City out, and it’s not fair to just stick them with cuts, and how the taxpayers need to help carry the load by paying more in taxes. Just for kicks, I decided to figure out how much extra we are already paying, compared to our neighboring cities. Thanks to Proposition 13, the base tax rate is not allowed to exceed 1% of the assessed value of the home. Of course, it can and does typically exceed that based on how much debt the municipality takes on, but usually not by a huge amount. Except in Oakland, where the base rate is a whopping 1.4086%. Here’s the breakdown, from highest to lowest, and how those differences can increase your actual annual property tax on a $500,000 home:

Oakland - 1.4086% Actual tax: $7043
Albany - 1.3975% Actual tax: $6985
Berkeley - 1.2555% Actual tax: $6277
Piedmont - 1.1931% Actual tax: $5965
Alameda - 1.1376% Actual tax: $5688
San Leandro 1.1223% Actual tax: $5611
Hayward - 1.0892% Actual tax: $5446

So, for the same house, Oaklanders would essentially be paying around $1500 extra annually in taxes, compared to neighboring cities, on a modest home. For more expensive homes, the disparity is obviously much greater.

Now, this does not take into account the special assessments that public entities can tack on as well, like my beloved Measure Y, or the new tax being proposed. Oakland does not come in first place for the special assessments. Here’s another chart showing that information:

Oakland - 1.4086% + $752 Actual tax: $7795 (including Measure Y)
Albany - 1.3975% + $1726 Actual tax: $8711
Berkeley - 1.2555% + $1663 Actual tax: $7940
Piedmont - 1.1931% + $3090 Actual tax: $9055
Alameda - 1.1376% + $1072 Actual tax: $6760
San Leandro 1.1223% + $525 Actual tax: $6136
Hayward - 1.0892% + $653 Actual tax: $6099

So, it is true that Berkeley, Piedmont and Albany would have higher total property taxes (on a $500,000 home) compared to Oakland. But keep in mind, you’re not going to find many homes in those cities in those price ranges. In Piedmont, practically none. And the high special taxes are due almost entirely to the assessments for the schools, which are significantly better than Oakland schools. Piedmont residents pay over $2000 a year just in special taxes to support their schools. And it shows.

(By the way, Long Beach, to which Oakland is frequently compared, has a tax rate of 1.114851%. To compare other Los Angeles County cities, check out this fabulous L.A. Times chart. http://www.latimes.com/news/local/bell/la-me-city-property-tax-table,0,5895218.htmlstory

None of them even come close to Oakland's tax rates, except...Bell!)

So, to summarize, this new parcel tax would not be able to be collected until November, 2012, sinking us deeper into debt. Oakland’s excessive debt is already costing homeowners at least an extra $1500 a year in taxes already. The new parcel tax makes no promises about better services, like increased police staffing levels. In fact, the City is pretty much admitting that even with the new tax, the level of services is going to go down even more. By the time the budget needs to be passed, on July 1, no election will have been held, so adopting Proposal C would basically rely on hope and prayers. Employee unions have made no meaningful concessions as of yet, and we have received no progress report on where things are at in that department.

Plan C gets an F.

The Parcel Tax And Glenn Close

2011-04-06T21:15:00.000-07:00

Talk about not being able to get anything right! First, the City drafts a proposed new parcel tax that is in blatant violation of multiple laws. I addressed those numerous violations in a previous post, and sent an email to the entire Council, as well as the City Attorney’s office, outlining all of the defects, prior to the Council meeting. Throughout that meeting, the deputy City Attorney was scrambling around making last minute changes, and by the end of the meeting, they had taken all of my legal advice, and it was barely legal. The Council, knowing full well that a June special election was still up in the air, and that the cost of the special election would be close to $1 million, decided to put forth the new parcel tax proposal only if Jerry Brown got that June election to happen. Last week, it was clear that the special election wasn’t going to happen, so I was hoping the parcel tax would be DOA.

It was resurrected at the last minute earlier this week. Only hours before the meeting, I looked at the agenda and saw that Quan was pushing for an election by mail, to be held on July 12. Given the short notice, I wasn’t able to make it the meeting, but fortunately, three council members prevented the discussion from even getting off the ground, because doing so would have violated Oakland’s own Sunshine Act. See, under Oakland’s own rules, for regularly scheduled meetings, the materials need to be available at least 10 days in advance, unless 2/3 of the Council finds there to be some sort of emergency. As Libby Schaaf pointed out, the Council was well aware over a month ago that the June special election might not happen, so this whole “let’s do an election by mail only in July” was not an emergency. Nancy Nadel called this a “tyranny of the minority.” Quan called it “parliamentary procedure.” (She might want to check the dictionary on what “parliamentary procedure” means). In the end, reason prevailed, and the Council moved on.

But Quan just won’t let that parcel tax die. It’s like Glenn Close in “Fatal Attraction.” Just when you think she’s dead, she jumps out of the bathtub with a cleaver! But unlike Michael Douglas, I knew there was a possibility that she might do just that. So I checked the website periodically today, for any signs of a newly special noticed meeting, and there was none. By around 3:30, I figured the issue was dead.

But then I saw a post by Bruce Nye of Make Oakland Better Now that a meeting had been posted, but no agenda, and that the City had missed the 4 p.m. deadline. So I started watching to see if and when the agenda got posted. It made it up by somewhere between 4:45 and 4:50. Too late. Why? Because the meeting was noticed for 4:00 p.m., and under the City’s Sunshine Ordinance, 48 hours is required. They blew it again! Fortunately, somebody must have realized that two botched meeting notices would just be too embarrassing (or maybe they realized the 4:00 p.m. meeting time on Friday would interfere with their Happy Hour - not to mention everybody else’s!) So apparently the meeting was canceled shortly thereafter. Hallelujah! Hopefully Glenn Close will be declared officially dead, and we won’t have to worry about any more boiled bunnies.

Another Miscarriage of Justice

2011-03-24T19:42:00.000-07:00

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.

Oakland's Latest Parcel Tax Proposal Is Illegal

2011-03-07T14:38:00.000-08:00

The latest parcel tax proposal is not only offensive, it is also illegal. Below is the text of the email I sent to Oakland officials today advising them of this fact. Not that illegality necessarily served as a deterrent in the past, but I hope they give some serious consideration to the points raised below. Hope some of you find the time to come to City Hall tonight to speak against this folly.

Dear Oakland Officials:

I urge you to vote against placing yet another parcel tax on the ballot. First, the tax is blatantly illegal, and violates the California Constitution. It will not pass legal muster and will only subject the City to additional litigation. Moreover, subjecting Oakland residents to yet another parcel tax, in light of the numerous betrayals that we have already suffered under Measure Y/BB will only add insult to injury. Lastly, the parcel tax is doomed to fail, and it would be a waste of City resources to even try to pass it.

I. The Tax Is Illegal

The proposed parcel tax is a flat $80.00 per parcel tax, with all funds to be deposited into the general fund, which may be used for any purpose. Therefore, the tax would clearly be considered a “general tax,” and a general tax imposed on property has been declared illegal as a matter of law in numerous published cases, and is expressly prohibited under the California Constitution and Proposition 218.

Ironically, Oakland has already lost a lawsuit on a similar parcel tax - Measure M. In 1988, then Director of Finance Richard Digre believed the tax to be unconstitutional, and refused to implement it. Oakland, in its infinite wisdom, filed a writ with the court of appeal to try to compel Mr. Digre to collect the illegal tax, and Oakland lost. The Court of Appeal held Measure M to be unconstitutional. City of Oakland v. Digre (1988) 205 Cal. App. 3d 99. The City tried to characterize the tax as “not a special tax” to avoid the 2/3 vote requirement of Proposition 13. However, the court noted that “Since Measure M monies go into Oakland’s general fund, the tax is a general tax even though the primary purpose of the tax is to fund specified city services.” Id. At 104. As a general tax, the court held that Measure M violated Article XIII, Section 1 of the California Constitution. Notably, California Constitution's Section 4 of Article XIII A (Proposition 13), states: "Cities, counties and special districts, by a two-thirds vote of the qualified electors of such district, may impose special taxes on such district, except ad valorem taxes on real property or a transaction tax or sales tax on the sale of real property within such city, county or special district." Therefore, under Proposition 13, cities could impose special taxes on property, but not general taxes.

More recently, in Neilson v. City of California City (2005) 133 Cal. App. 4th 1296, the court clarified when local agencies can legally impose parcel taxes. In that case, the plaintiff challenged a flat-rate parcel tax, which had been approved by a 2/3 majority vote, arguing, among other things, the tax was a general tax, despite its stated status as a special tax. The plaintiff argued that because the tax was designed to fund so many different city functions, all of which were typically funded from the general fund, the tax was actually a general tax disguised as a special tax. In analyzing the issue, the court noted that under Proposition 13, general taxes are subject to majority, as opposed to a 2/3 vote requirement. Since the passage of Proposition 13, voters have approved additional restrictions, including Proposition 62, passed in 1986, which added Sections 53720 through 53730 to the Government Code. Section 53721 provides: “All taxes are either special taxes or general taxes. General taxes are taxes imposed for general governmental purposes. Special taxes are taxes imposed for specific purposes. “ Section 53722 clarified that special taxes are subject to the 2/3 vote requirement of the electorate, as well as the public body voting to place the matter on the ballot, and Section 53723 clarified that general taxes were subject to a majority vote.

After Proposition 62, voters approved Proposition 218 to further limit taxes. “Proposition 218 allows only four types of local property taxes: (1) an ad valorem property tax; (2) a special tax; (3) an assessment; and (4) a fee or charge…..It buttresses Proposition 13’s limitations on ad valorem property taxes and special taxes by placing analogous restrictions on assessments, fees and charges.” Howard Jarvis Taxpayers Assn v. City of Riverside (1999) 73 Cal. App. 4th 679, 682, cited by Nielson at 1307. Sections 3 and 4 of Proposition 218 amended the California Constitution by adding article XIIIC, which concerns voter approval of local tax levies, and Article XIIID, which limit’s the ability of local governments to impose assessments, fees and charges. For example, Article XIII D, Section 6, Subdivision (b)(5) prohibits property related fees or charges for “general governmental services” such as police and fire. (Article XIIID.) The court in Nielson made it clear that general property taxes are not permitted, while special taxes are. Id. At 1308. It noted: “City does not dispute that a flat-rate parcel tax is unconstitutional if it is a general tax.” Id. At 1309, citing Digre, supra, and Thomas v. City of East Palo Alto (1997) 53 Cal. App. 4th 1084. The court went on to discuss the distinctions between a special tax and a general tax. A “general tax” is defined as “an tax imposed for general governmental purposes,” and a “special tax” is “any tax imposed for specific purposes, including a tax imposed for specific purposes, which is placed into a general fund.” Id. At 1309. “Pursuant to these definitions, a tax is special whenever expenditure of its revenues is limited to specific purposes; this is true even though there may be multiple specific purposes for which revenues may be spent…A tax is general only when its revenues are placed into the general fund and are available for any and all governmental purposes.” Id., citing Howard Jarvis Taxpayers Assn. v. City of Roseville (2003) 106 Cal. App. 4th 1178, 1185.

Government Code Section 50075 et seq., added in 2001, clarifies that cities may impose "special taxes" with a 2/3 majority, but requires that the special tax "shall provide accountability measures that include, but are not limited to, all of the following: (a) A statement indicating the specific purpose of the special tax; (b) a requirement that the proceeds be applied only to the specific purposes identified....; (c) the creation of an account into which the proceeds shall be deposited; (d) an annual report pursuant to Section 50075.3." The proposal incorporates none of these safeguards.

Under the legal authorities cited above, there can be no question that the tax you are being asked to consider is a general tax, disguised as a “special tax.” While the materials presented use the terminology “special tax” and concede that a 2/3 vote is required, the verbiage makes it clear that not only is all the money placed in the general fund (Part I, Section 3), but also that the purpose of the tax is “for any legal municipal purpose….” No special purpose is described. (Part 1, Section 1). Therefore, the proposed tax is clearly a general tax on property, and as such is constitutionally prohibited. The proposed tax is patently illegal and must be rejected.

II. The City Has Failed To Honor The Promises of Measure Y And Residents Will Not Support Another Tax

Property owners have enjoyed none of the benefits promised under Measure Y or BB. We were promised increased police staffing. We had a fully staffed force for less than six months since we voted for Measure Y in 2004. For the 2009/10 fiscal year, the City’s police force was not fully staffed for even one month, and the City collected Measure Y taxes anyway. The City’s decision to understaff the department was deliberate, and its collection of the tax was blatantly illegal. Many residents had a dedicated problem solving officer for only a year of the 6 years we have been burdened with Measure Y taxes. Some officers were illegally deployed outside of their beats for months at a time. The promised “crime reduction team” was never delivered. Measure BB promised a “restoration” of the problem solving officers, one for each beat. The police department then dissolved the 57 community policing beats into 35, so that now there are at least 8 beats in Oakland that don’t have their own problem solving officer, while other beats have more than one. This is an utter betrayal of the promises made with Measure BB. Now, property owners pay over $90.00 a year and we have 140 officers less than what we were promised under Measure Y. Crime is rising. You have lost your credibility. On March 14, 2010 my pending lawsuit will be heard, the City will lose, and the City’s credibility will be damaged even further.

It is patently unfair to tax residents, who are already paying higher taxes for an ever-dropping police force, when police officers contribute nothing to their pensions; when other City workers have not taken any real pay cut; when a substantial portion of the City’s budget is devoted to non-essential services under “Kids First;“ when the City Council supports giving tens of millions of dollars a year in no-bid contracts to non-profits, with little accountability and little track record of success. Voters, who are already struggling financially, and who have already defeated additional parcel and phone taxes, will not support this ill-advised effort. I urge you to vote against this proposal.

Oakland Admits It Illegally Collected $145,000 In Measure Y Taxes In July, 2010

2011-02-21T21:47:00.001-08:00

After the City idiotically decided to lay off 80 officers last year, that meant they had to discontinue collecting Measure Y taxes, including both the parcel tax and the parking tax. Except they didn’t, at the Oakland Airport. According to documents produced in response to a discovery request, the City admitted that the Oakland Airport erroneously continued to collect the tax. The City “redacted” the amount of money illegally collected from the emails produced, but I did a follow-up public records request for the full amount at issue, and last week, the City revealed that the total amount at issue is over $145,000 for the month of July, 2010.

The money is currently sitting in some sort of an impound account, apparently, and if you parked at the airport during that month, that means the tax was illegally collected from you, and you can make a claim for a refund. Realistically, how many people would actually do this? I mean, you pay $15 to $30 to park your car, which means the tax isn’t going to be more than $1.50 to $3.00 for most people. Sitting down at your computer to type out a demand letter, and putting a stamp on the envelope, means that it really isn’t worth the effort. But it’s everybody’s $1.50 tax adding up to the full amount of $145,000, and the principle of the matter, that’s important. An example of yet another screw-up by City officials, and the citizens (as well as out-of-towners) getting screwed. Just thought you should know, in case you wanted to make a claim. Or cared to know about yet another violation of Measure Y.

When The City Gets Caught Breaking The Law, The City Changes The Law

2011-02-16T21:10:00.001-08:00

As you all know, one of the main allegations in my pending lawsuit is that the City violated Measure Y in 2009/10 when it failed to “appropriate” sufficient general fund money to “maintain” 739 officers, and yet, continued to collect Measure Y taxes. So what did the City do? It put Measure BB on the ballot, and changed the law, so that now it can collect Measure Y taxes no matter how small the police force gets. No need to beat that dead horse.

But another claim in my lawsuit that I haven’t really discussed is the fact that City has awarded millions and millions of dollars in Measure Y funds to non-profits without any competitive bidding or “request for proposal” process. As anybody who has ever solicited “bids” on a project knows (for auto or home repairs), the idea is to ensure that you get the best service for the lowest cost. This is particularly important for public entities, where there’s all sorts of temptation and incentives to award contracts for other reasons, like the guy that fixes sewer lines is the City Councilman’s brother -in-law, or that little law firm that handles collections donated a lot of money to so-and-so. Patronage, I believe it’s called. Anyway, to avoid these scams, there are numerous statutes in the Public Contracts Code requiring bidding, as well as in Oakland’s own City ordinances. But the City has been violating the laws for years, and not just with Measure Y money. They have defended the practice, arguing that competitive bidding doesn’t apply to “grants.”

Well, what the heck is a “grant?” It is defined nowhere in any City ordinance. The dictionary definition is “a sum of money given especially by the government to a person or organization for a special purpose.” Can you think of any logical reason why the government should dole out grants without some sort of bidding process? Well, patronage comes to mind. Notably, there is no exception in the Oakland Municipal Code for awards of “grants.” Well, there wasn’t. Until last month. When unbeknownst to me, the City Council quietly amended the Municipal Code to “clarify” that grants were not encompassed in any bidding requirements ordinarily applicable to contracts for goods and services. It passed unanimously on January 18, 2011 by the City Council. Ironically, the same day that my litigation settlement proposal was considered by the Council in closed session (and summarily rejected). Coincidence? I think not!

So there you have it, folks. The City is mired in debt. It doesn’t have any money to pay for basic services. And yet, it wants to be free to dole out millions of dollars in taxpayer funds to whichever nonprofit yells the loudest at Council meetings; whoever has made the appropriate donations/bribes to the appropriate government officials; whoever has paid their dues walking the streets garnering support for the latest parcel tax. And it just gave itself unanimous permission to do so. Why obey the law, when you can just change it to suit your needs? No need, when you’re the City of Oakland.

On Chief Batts And Police Staffing

2011-02-01T22:05:00.001-08:00

The recent news about Chief Batts’ interest in leaving Oakland for San Jose has brought welcome attention to the currently dire situation of police staffing, or lack thereof. Initially, it was just speculation about why he threw his hat in the ring, but more recently, he confirmed that he may not be interested in staying in Oakland unless City officials show the necessary commitment to staff the police department adequately and provide other necessary resources.

Oakland officials’ response to all of this has been typical. Jean Quan initially was quoted by various news sources as saying the equivalent of “don’t let the door hit you in the ass on the way out” and that she’d like to be able to choose her own person. Well, with police staffing at 600 officers, half-functioning police cars and malfunctioning radios, good luck finding somebody better than Batts. Then Jane Brunner and others criticized Batts for not getting involved in police negotiations and trying to pass the parcel tax. Well, first of all, I doubt he was ever invited to the bargaining table. Moreover, I think he has more than enough on his plate as it is. Public officials are not allowed to use City time or resources to do campaigning - it’s illegal. So when exactly was he supposed to have the free time to do this?

The most recent announcement by Quan that she intends to hire back 10 officers who were laid off last summer is nothing more than a gimmick, a ruse to make the press and other naïve Oaklanders think the City is actually committed to public safety and getting staffing back up. And something to point to in case he still decides to leave. So they can say about the doctor trying to operate on the patient “I don’t understand why he quit, we gave him a butter knife!”

With attrition at around 5 officers per month (and it has been higher recently), the offer is an insult. It is a band-aid on a gaping wound. . In January alone, the homicide rate has nearly tripled. The supposed promise offer certainly shouldn’t be enough to get Batts to commit to staying. For the first time, we’ve actually got somebody with some negotiating power who is basically saying, “You people know that there are people dying out there, being mugged and raped and robbed, and you are not committing to helping them. And I’m calling you on it. And unless you give me the resources I need to actually tackle this problem, I’m going to walk right on out of here, and everybody’s going to know why: because you incompetent and uncommitted bozos aren’t doing your jobs.” Pretty bad publicity, huh?

A promise to rehire 10 officers (who knows when) (and fixing some police radios) should not be enough to get him to stay. He should demand that the City commit, in writing, to a specific staffing level, with regular academies to maintain that staffing level. Otherwise, it can hardly be called a plan, or a strategy, or a commitment. Rather, it is only a diversion, a gimmick, a bone being thrown. And Batts should be smart enough to know that’s exactly what it is.

But of course, I know what’s coming. Another parcel tax proposal. And this time, City officials are going to tell Batts, you want your resources, you need to get out there and extort some more cash from all those past and future burglary and robbery victims. Needless to say, I‘d be unlikely to support that. (Somehow, I don‘t the think the proposal will be for full staffing at 803, guaranteed, for only an additional $50.00, to last only two or three years). But I’ll save my rant on that subject until I see the inevitable proposal that I know will be coming in the next couple of months. In the meantime, I hope Batts gets the City to commit, in writing, to whatever staffing level he thinks he needs, parcel tax or no parcel tax.

The Madness of Mayor Quan

2011-01-25T22:51:00.000-08:00

Based on a recent interview given by Ms. Quan to the Mills College campus newspaper, I now suspect she may suffer from an affliction similar to that of King George III. She babbles incoherently, appears muddled in her thought process, and is apparently hallucinating and/or suffering from impaired vision. You can find the full interview here. http://www.thecampanil.com/2011/01/25/the-campanils-exclusive-interview-with-oakland-mayor-jean-quan/

When asked for her thoughts on my litigation, she first claims that I “didn’t support Measure Y to begin with.” Actually, Jean, I have repeatedly stated that in fact I did vote for Measure Y, because I wanted a community police officer for each beat. Not that this is what we’re currently getting, but I digress….

Next, she says: “…and she’s always been out there saying, ‘oh well, you could not have the money until you had 803 officers.’” No, I never claimed that. Actually, my first lawsuit alleged that the City should have been precluded from collecting Measure Y taxes unless it employed the 739 baseline staffing from 2004. The City, on the other hand, claimed that all that was required was “appropriation” for officers, as opposed to employment of actual officers. This nuance is entirely lost on Ms. Quan. The next couple of sentences are so incoherent I can’t even understand what she’s trying to say, but if you can figure it out, let me know.

She goes on to claim: “Cops tend to retire as soon as they can and go on to get a second pension, if they can.” The cops are gonna love you for that one, Jean.

Then she starts moaning about how difficult it was to recruit cops after Measure Y passed, with this zinger: “…was at the time when LA decided they were going to hire 10 thousand new cops, too, so it was very, very difficult….” Really? Hire 10,000 new cops? The entire force isn’t even that large. But hey, what’s a few zeros to a woman who drove the school district into bankruptcy, and is well on her way with the City?

She attempts to explain the most recent legal ruling as follows: “I was really happy because I had helped write it [Measure Y] and I was like ‘we wrote in recruitment and training for beat officers’, but her complaint was that the people we hired and trained didn’t become beat officers right away. But the point is that beat officers have to be more experienced officers. We used the new cops to back fill the older cops, who then became beat cops….. I would have spelled it out more, but it just never occurred to me that the judge would think that we could immediately hire these people to be beat cops…and that’s basically what the law suit was….” Wow. Did you, like, get that? OMG! She’s, like, totally incomprehensible. Maybe she was translating from Ebonics?.

But never mind her insufferable syntax: she’s completely off the mark, because that was never my argument at all. Rather, I argued that the City used Measure Y funds to hire non-Measure Y officers, and an equal number of veteran officers were NOT deployed to Measure Y positions. An Alameda County Superior Court judge ruled that there was no justification for the City’s actions in logic or in law. Moreover, there is nothing in Measure Y that refers to “recruitment and training,“ so she must be suffering from delusions. Not to mention, given the total disaster Measure Y has been, why is she still bragging about it?

Then she concludes with: “…basically, she wanted us to keep more cops and to not do the violence prevention program in all of her negotiations. So her whole thing was that she really wants more cops. She doesn’t believe in the violence prevention program and she was pretty outspoken against it during the original campaign.” First, she’s not supposed to discuss the negotiation process. But yes, I really do want more cops, and I have publicly stated that given our extremely limited budget, we should prioritize police over violence prevention programs, because we can’t afford both. But I had no involvement in the original campaign whatsoever. Sounds like she’s mixing me up with Charles Pine. For those of you who don’t know both of us, we don’t look anything alike. Except we’re both white. Maybe we all look the same to her? Or maybe the affliction she’s suffering from is affecting her vision. Hopefully her new trusted advisor, Rasputin Esq., will brief her on what my litigation is actually about (if he even knows), and counsel her to keep her trap shut in future.

Community Policing Compromised Yet Again

2011-01-18T14:25:00.000-08:00

Oakland officials bamboozled voters into supporting Measure BB by promising a return of the community policing “beat” officers, otherwise known as “problem solving officers” or “PSOs.” Measure Y requires one for every beat in Oakland. Well, in typical Oakland fashion, they are trying to get around the requirements of Measure Y/BB by slashing the number of beats in Oakland from 57 to 35. Well, actually, it’s a done deal. Without any City Council action, without any public discussion, without any formal announcement, and without any updating of City websites.

For years, the beats in Oakland were divided into 57 regions. While some are geographically bigger than others, they were supposed to have similar numbers of residents. The impact of this decision is huge. For example, in Montclair, Beats 13X and Y are now just one beat. And they’re only going to have one PSO. What that means, in effect, is that the residents of Montclair are going to get half the level of service that they got before. Other beats, however, will get two PSOs, based on a “stressor” index. So apparently the more dangerous neighborhoods will get two PSOs.

While I can understand OPD trying to make the best out of its limited resources, the bottom line is that this is not what we voted for. When we voted, back in 2004, and again in 2010, there were 57 beats, and we were promised one officer for each one of these neighborhood beats. Now, our beats are twice as big, and many of us will be getting half the level of service we were promised. The beats are so big you can hardly call the area a “community” anymore. This is contrary to the letter and the intent of Measure Y. I mean, think about it. Why not reduce the number of beats down to three while they’re at it? Do they think that would be legal?

Given this new and obvious vioalation of Measure Y, it is no surprise that the City has tried to make all of this happen very quietly, with no fanfare or public discussion. Was it agendized for the Measure Y Oversight Committee? Of course not. Is it on the agenda for the Public Safety Committee meeting? No. Did the Neighborhood Watch coordinator know anything about it? No - she said I was the first person to mention it to her.

While the City is paying lip service to the concept of community policing, the reality is that this decision is legally indefensible, and seriously erodes the progress we have made in bringing smaller communities together for the purpose of fighting and preventing crime. Not to mention, the erosion of public trust in yet another violation of Measure Y.

Meet Your New Measure Y Oversight Committee Members

2011-01-10T19:59:00.000-08:00

Two new members have been appointed to the Measure Y Oversight Committee. Oh, excuse me, I meant the "Violence Prevention and Public Safety Oversight Committee." Whatev. Anyway, you can check out their resumes here.

http://oakland.legistar.com/LegislationDetail.aspx?ID=784965&GUID=FCD76D87-6431-47FC-B4FF-0698C81984E3&Options=&

Pretty impressive, actually. At least they graduated from high school. No seriously, they do have impressive resumes. But my issue is that everybody appointed to this committee seems to have a "violence prevention" bent. None of them are law and order types. No retired police officers. No police officers who live in Oakland but work in other jurisdictions. Nobody who actually has any insight whatsoever into how police departments should work or how community policing could and should work most effectively, from a police perspective. So when push comes to shove, on the MYOC, nobody's really interested in "diversity." As long as you believe these "programs" will "prevent" crime, we can just ignore the police component of the voter-approved mandates. Which by the way, continues to occur.

Measure Y (and its evil step-son, Measure BB) requires that community policing officers serve "solely" the residents of their own beats. It requires that at least six officers be assigned to a special, Measure Y funded "crime reduction team." But despite the specific language of Measure Y, and clear guidance from the court on this issue, the City reassigned numerous problem solving officers away from their beats to other duties; one PSO was assigned to a gang task force for 6 months; another was reassigned for at least three months; another was assigned as a field training officer for three months. And the CRT positions? Never filled, except for three months. Does the MYOC address any of these issues? Never. I looked at their agenda for tonight. Hogwash. Not even worth watching on KTOP. The committee continues to be a sad joke.

Christmas Vacation - Oakland Style

2010-12-30T14:46:00.000-08:00

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.

You Can Fight City Hall - You Just Don't Always Win

2010-12-12T21:29:00.000-08:00

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.

Why You Need To File Your Measure Y Refund Claim Now!

2010-12-04T15:17:00.000-08:00

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.

Litigation Update

2010-11-23T18:20:00.000-08:00

I spent the day today taking depositions of various City officials, including Dan Lindheim and Dan Purnell, Executive Director of the Public Ethics Commission. Here are the highlights:

1. The PEC has a rule that the Executive Director issue a formal report to the PEC within 30 business days, except if the PEC grants and extension. Mr. Purnell, admitted that he basically never complies with that rule, and never gets an extension. And he doesn't seem to care. Never mind that his job is to serve the commission devoted to upholding integrity and trust in government. Never mind that justice delayed in justice denied. He's collecting his paycheck; that's all he seems to care about.

2. The complaint regarding public records compliance that I filed in September, 2009, will likely not go to hearing until next year. The hearing is not likely to be completed until my lawsuit is over. Meanwhile, the City continues to spend tens of thousands of dollars of taxpayer dollars fighting the public's right to timely access to documents. Money it doesn't have.

3. Lindheim, who admitted that his job is to "run the City," had only the vaguest ideas about my public records complaints. He'd never read Mr. Purnell's report, outlining numerous compliance problems. He wasn't aware of specific policies or procedures that the City had regarding compliance. He was only vaguely aware that this was a cause of action in my lawsuit.

4. Lindheim wasn't aware that PSOs had been pulled off of their beats, one for six months, nor was he aware that this was a specific allegation in my lawsuit.

5. Lindheim continues to defend the City's decision not to hold police academies (other than the two lateral academies that produced only 7 or 8 officers total) and deliberately reduce the size of the police force, as within the legalities of the former Measure Y.

6. Lindheim promised to staff the PSO positions in January, from the existing ranks of the police department. When asked about the crime reduction team positions (Measure Y/BB requires that at least 6 of the 63 positions be crime reduction team positions devoted to specific duties), Mr. Lindheim appeared to be unfamiliar with that particular requirement, or the fact that the requirement had not been fulfilled for most of the duration of Measure Y. However, he assured me that the City would "comply with the law." Yeah, I've heard that one before.

Congratulations Measure BB Supporters - We're Getting a SMALLER Police Force!

2010-11-04T21:35:00.000-07:00

As a thank you to Measure BB supporters, City Administrator Dan Lindheim held a press conference today to announce that the City was planning to reduce the police force by another 35 officers. City officials proudly announced that the police force, today standing at 671, will be allowed to drop through attrition to 637. That, the City claims, is all it can afford. http://www.insidebayarea.com/news/ci_16526767

Under the original Measure Y, taxpayers had some real negotiating power to force the City to get general fund support for police staffing back up to 739, so that it could collect Measure Y funds. But they gave all that power away by voting for BB. Now, thanks to the deception of BB promoters, and the ignorance of most voters, homeowners will be paying $270 in taxes over the next three years, for an ever-shrinking police force.

BB supporter funded literature promised a "restoration" of the 63 Measure Y positions, leading many to believe that if it passed, 63 additional officers would be added to the force. Of course I knew it didn't mean that, and did my best to communicate that to the masses, but people heard what the wanted to hear, or didn't get the message (I didn't have $100,000 of union or taxpayer money to spend on fliers) and voted for BB.

And of course most residents didn't understand that any police officers brought in to fill the PSO and other Measure Y positions would have to come from within the existing force, thereby decimating the size of other necessary units within the force. When I tried to explain this on election day to a reporter unfamiliar with Measure Y, she didn't believe me. After today's press conference, however, she does.

Of course, the City's budget numbers are subject to some skepticism. Last week, Ignacio Delafuente said the budget deficit for 10/11 would be $50 million. Today, Lindheim was claiming it would be $10 million. What's a $40 million discrepancy between City leaders? If any of the numbers were crunched by Jean Quan, who has difficulty with the distinction between positive and negative numbers, addition, and basic multiplication, we should all wonder.

Meanwhile, the City's financial shenanigans were recently confirmed in amended "discovery" responses I received through the litigation. Turns out that despite the clear language of Measure Y, that PSOs serve "solely" the residents of their beats, at least two were reassigned outside their beats. One was reassigned for a full six months, leaving his regular beat totally uncovered. Worse yet, the City billed the entire amount of his salary (probably around $60,000 for that period of time) to Measure Y, even though he was performing no Measure Y duties. Thanks to my lawsuit, the City has "uncovered" this "clerical" error and supposedly will refund the money to Measure Y. And these are the bozos that you just decided to trust another $60 million of your hard earned cash to, no strings attached. Just sayin'.

Goliath BBeats David

2010-11-03T08:51:00.000-07:00

Final results: Yes 70; No 30%

I knew we were in trouble when I read this quote from yesterday's Trib: “Moore… did, however, vote for more police through a parcel tax, and he hopes it goes some way toward improving safety for Oakland’s children.” Too bad there was nothing on the ballot that actually provided for “more police.” This poor slob actually thought one of the measures provided for more police. Then, another reader pointed out that the lone Republican mayoral candidate, Arnie Fields, supported Measure BB because "we need more education."

But the really bad news came at around 7:30 p.m. when some women in my Crucible glass studio lab were talking elections and about how confusing everything was on the ballot. One of them is a graduate of Hastings Law School. I asked her if she happened to see my name in the Voter Information Pamphlet. She said she hadn't. She had no understanding of what the measure would do. (I assume she didn't read the arguments pro and con). She admitted that she was "confused" by the measure. And this is a women who went to law school and passed the bar!

So I guess I shouldn't be surprised that the measure passed. After all, the title (which is apparently what most people read, and never get any futher) said: "...at no additional cost...." People read that and think it won't cost them any money. (Watching KTVU news this morning, they repeated this same misinformation).

Voters read that Measure BB "restores" 63 community policing positions, so they think police staffing will go up. It was the sly City Council and City Attorneys who came up with this language, and without another vicious legal battle, there was nothing I could do about it. So the hoodwinking of the public is permitted to continue, and now BB has passed.

I should also mention that the supporters of BB (all the people who stood to benefit financially) probably spent around $100,000 for flyers and websites and whatnot. We spent zero. They had people phone banking and walking neighborhoods. We don't have those kind of resources. They had the endorsements of the all the establishment people. I wish that angry taxpayers like me would be more organized, but we don't have the automatic cash flow and pre-organized PACs that the unions and the non-profits do. It was not a fair fight.

But every cloud has a silver lining. I stopped by the Don Perata party last night and chatted with OPOA President Dom Arotzarena, who assured me that the City would indeed be filling the 63 Measure Y positions right away. According to him, "they have to!" I sure hope he's right. Of course, this means other areas of the police force are going to get decimated, but for those of us who valued our neighborhood PSO, I suppose this is a good thing. In addition, it does give the City a much needed income stream to fund additional police, so I am hopeful that the City will rehire many of the officers laid off earlier this year. Lastly, if Perata is confirmed as mayor, I am hopeful that he will be able to negotiate necessary concessions with the union that will free up additional money necessary to get the force up to where it needs to be. Maybe with some actual leadership in City Hall, by someone who seems to appreciate the value of public safety, we will start making some progress.

In the meantime, however, I will continue with the litigation and my other efforts to keep our government honest and accountable. If the past is any indicator, I have a long and rough road ahead.

Why The Proponents of Measure BB Are Wrong

2010-10-27T15:22:00.000-07:00

Last night, KTVU did a segment on Measure BB. There is a clip of Jane Brunner handing out a flier to a little old lady and telling her that if the measure doesn’t pass, they’ll have to lay off another 100 police officers. http://www.ktvu.com/video/25532246/index.html

Scare tactics and fuzzy math. (Measure Y only funds 63 officers, so where does the 100 come from?)

I understand the propoponents' arguments. I really do. I’m not deaf and blind. People will say, oh, Oakland really needs the money, without the money, things will be so much worse. Even more cops will be laid off. Is that what you want?

No, that’s not what I want. Anybody who’s been paying attention to my battles knows that’s the exact opposite of what I want. But I don’t believe throwing money down the toilet is the answer. And that’s what Measure BB is.

First, Measure BB only gives around $9 million to the police. The rest goes to violence prevention and fire, which, quite honestly, are simply not my priorities. If it were up to me, all the money would go toward additional police. But I also know that Measure Y was a compromise in order to get the two-thirds vote, and some money needed to go to other causes.

BB supporters are claiming that it will “restore” the PSO “positions.” Notice that they don’t say we’ll actually get the beat officers back. Because we won’t, folks. Where do you think they’re going to come from? If we’re at 680 officers now, do you really think the City will redeploy 63 officers to Measure Y positions, and the regular force will be down at below 620? Or below 600 in a few months? I hardly think so. Do you think they’ll actually hire the laid off officers back? I sure hope so, but I’m not banking on it, and the City is not promising they’ll do that. In fact, they’re saying if X fails, and BB passes, it will just mean that they’ll have to lay off fewer officers. So in my mind, that’s a clear message that nobody’s getting hired back. And when you and I start complaining about, “where’s our PSO?” the answer will be the same as it was before my lawsuit and Charlie Pine’s lawsuit. “There’s no deadline in Measure Y for filling those positions, so go pound sand.”

The City is broke. I get that. They do need the money. So the question is, what to do? Some of you say, raise taxes. I say, hell no. And not because I hate paying taxes. Well, okay, I do hate paying taxes, but obviously not as much as our mayor, because I actually do pay taxes. And I voted for Measure Y back in 2004. But we were betrayed by Measure Y. The neighborhood beat officers weren’t hired until after two lawsuits had been filed, and after the City had raided Measure Y of $15 million. And then we got the full staffing for less than six months. $100 million for less than six months of the promised staffing? Sorry, that was not a good deal from my perspective. So I can’t agree to any more taxes until and unless the City makes all of that up to us.

The police union is not paying into its pension. It is the only union that has refused to do so. If they started contributing, that would put about $7 million of ongoing money back in the pot - only $2 million less than what the City is currently getting from Measure Y. I have no doubt that the City can find $2 million worth of cuts somewhere else, instead of through this “Measure Y” fix. Hand me a red pen and I’ll find it myself.
Next, you guys need to keep in mind that even without more layoffs, the City is engaging in a deliberate strategy of reducing the police force by over 50 officers a year, because it is refusing to schedule new academies. So this whole threat of more layoffs is a red herring. The City effectively laid off around 100 officers before they even got to that 80 officer layoff in July. And we're going to lose even more officers, formal layoffs or no formal layoffs, until and unless the City actually commits to budgeting for and scheduling sufficient academies to give this City the police force it needs - 925 officers, according to Chief Batts.

Finally, the $9 million a year that the police gets under Measure Y is, quite frankly, a drop in the bucket compared to the City’s real financial woes, that they still don’t even want to talk about. Because of the unfunded pension liabilities, the City is facing an additional $53 million bill next year. http://www.contracostatimes.com/daniel-borenstein/ci_15987580?nclick_check=1 Where is the money for that supposed to come from? More taxes still?

Measure BB is a band-aid on a gaping wound; it does nothing to solve the real financial crisis, and does nothing to guarantee additional officers on the street. If Don Perata is elected, he has committed to getting the officers back, and increasing the size of the police force. He has ruled out additional layoffs. If we reject Measure BB, there will be a new opportunity to negotiate with the union and get the 9% concession, and other necessary concessions, now, not years in the future. Vote for Don Perata and against Measure BB.

Who's Where On Measure BB?

2010-10-20T21:18:00.000-07:00

Clearly, Measure BB has some powerful backers. Of course, the big unions are supporting BB. They know which side their bread is buttered on. Same with the violence prevention non-profits, that get millions from Measure Y. And not surprisingly, most of the mayoral and council candidates support it too - it’ll make their jobs a lot easier if they have an extra $20 million of our money to play with. BB supporters have set up a fancy website (that doesn’t allow email inquiries) and sent out glossy fliers. But in the most recent poll figures that I’ve seen, voters don’t support it. (And we haven’t spent a dime.) And some important organizations that went through a formal or informal endorsement process ended up not supporting it either. The Measure Y Oversight Committee, the Alameda County Central Democratic Committee, and the Metropolitan Greater Oakland Democratic Club all officially decided to take no position on the measure.

Not that this stopped the Pro-BB folks from falsely claiming on their website that MGO has endorsed a “yes” vote. Why am I not surprised? Truth, integrity and accountability have never been the strong suit of any of these folks. And to make matters worse, we anti-BB folks contacted the person in charge of the Pro-BB folks (Jane Brunner) about the false endorsement, asking her to correct the website, and she’s done bupkiss. Again, can’t say I’m surprised.

Over the last week, KALW has been running a series covering the BB debate. You can find my abbreviated interview here. http://informant.kalwnews.org/2010/10/opinion-attorney-marleen-sacks-on-oaklands-public-safety-measures/. Local columnist Reverend Byron Williams also weighed in the issue here (coming down solidly anti-BB). http://informant.kalwnews.org/2010/10/opinion-rev-byron-williams-says-the-city-of-oakland-hasnt-been-frank-about-finances/. The pro-BB folks interviewed included Oakland non-profit director Esperanza Tervalon--Dumont http://informant.kalwnews.org/2010/10/opinionesperanza-tervalon-daumont-on-why-continuing-measure-y-parcel-tax-is-critical-to-public-safety/ and, of course, Council President Jane Brunner. http://informant.kalwnews.org/2010/10/opinion-oakland-city-council-president-jane-brunner-on-the-citys-economic-woes/

So I won’t respond to Ms. Tervalon-Dumont’s assertions because, frankly, she didn’t answer any of the questions. (On the other hand, I don’t know why the reporter posed those particular questions, because I wouldn’t have expected Ms. Tervalon-Dumont to have actually known the answers. In which case, she should have admitted she didn’t have the foggiest notion, but for whatever reason she chose not to do that, and just comes across as ignorant and evasive). But here‘s my reaction to Jane‘s interview:

Q: What has Measure Y done for Oakland?
Brunner: Measure Y has been terrific. So what it did is it hired 80 police officers.

Um, terrific? Wow. I’d love to be her waitress at Burger King. Maybe she’d leave me a 20% tip for the “terrific” service. Her standards are obviously pretty darn low. Moving along - hired 80 police officers? How could that possibly be? Only 63 are called for, and everybody agrees the funding was only there for quite a bit fewer than that. So how could 80 have been hired? Well, I did a public records request a while back seeking all documents supporting this claim, and not surprisingly, the City has none. So that’s a total lie. Moreover, Brunner doesn’t mention that we had the full complement of Measure Y officers for less than a year, and they’ve all been laid off now, so how terrific is that?

Q: How revolutionary was the measure when it passed?
Brunner: It was. Oakland tried before to get more money for police and it didn’t pass because people here really want to help do the prevention side. So this was a way to do 40 percent goes to prevention and 60 percent goes to police.

I agree it was revolutionary. I mean, every other city in the Bay Area had managed to pay for a full police force without a parcel tax. So demanding taxpayers pay extra, for a police force that everybody agreed was still way too small, sure was “revolutionary.”

Q: Why does the measure need to be fixed?
Brunner: We need a fix because, basically what it said was the city would guarantee there would be 739 officers. We did that when it was good economic times. We, the city could not afford that anymore.

Jane, be happy you weren’t under oath when you said that, because your lawyers have been claiming for years that Measure Y doesn’t actually require staffing of 739, but rather, merely “appropriation.” And if the “economic times” were so “good” back in 2004, why did you tell voters that the City was broke and didn’t have enough money for a full police force? As for now, you’re claiming the City can’t afford to even budget for 739 officers, how can you afford Kids First? How can you afford gold-plated pensions for City workers? Don’t tell me there wasn’t fat to cut out of the budget before police officers. Sorry, but I like Perata’s quote: If I can’t find 80 people to cut from the City payroll instead of police officers, fire me.

Q: There are some folks who are pretty disappointed with how the money has been spent.
Brunner: Well, you know, technically, they are technically correct. That the chief of police took some money and didn’t just spend it on other things, didn’t just spend it on other programs. He took some of the Measure Y money because we had to hire new officers and he spent it on training new officers. But because you want problem solving officers to be seasoned, there was a rule that you had to have two years of being in the force to become what we call a PSO. So what he did is he took the money, trained the new officers, and they took the place of older officers. The older officers became the PSO. And I don’t want to get into it because there’s all these lawsuits. But technically you could say that it wasn’t exactly the way it was supposed to be….But technically, if you read the language, a judge ruled that it wasn’t quite supposed to happen that way.

Jane, if the City had actually used the money to hire new officers, and the veteran officers were placed into Measure Y positions in their stead, none of us would have ever known about it and there wouldn’t have been “all these lawsuits.” The reality is, the City used Measure Y funds to pay for non-Measure Y officers, and then never filled the Measure Y positions.

Q: What about what some say is a lack of oversight?
Brunner: No there’s auditing. And they know exactly where all the money comes from.

I got a laugh out of that one. The issue isn’t where the money is coming from. We all know that - it comes from US! The issue is - where is the money going TO?

Q: Was the city aware when it put out Measure Y that it was not enough money to fund what it promised?
Brunner: You know, I’m going to say that it was never made public, I had no idea. But I have learned since that there was one or two people who knew that Measure Y was not funding itself and they did not make that public. So they didn’t make it public to me when I was voting on it to put it on the ballot. I think that was unconscionable.

Well, Jane, the City auditor certified that the funds generated were sufficient to pay for the purposes, and that’s what it said in the Voter Information Pamphlet. I agree that it is unconscionable that voters are misled and lied to in the Voter Information Pamphlet. Fool us once, shame on us. Fool us twice, ain’t gonna happen - we ain’t gonna vote for BB, and you have only yourselves to blame.

Oakland On The Road to Bell?

2010-10-14T19:02:00.001-07:00

I love the story of Bell, California. It really highlights the depths of corruption to which city leaders can sink, without anybody noticing. Thanks to the L.A. Times and information they ultimately obtained through public records, however, we have now learned about the exorbitant salaries, pensions, and other shenanigans going on in Bell.

Is Oakland so different? Well, we do have our local newspaper group that publishes public employee salaries annually, which I think helps deter and expose similar issues from happening here. But the newspapers had to go all the way to the California Supreme Court to get access to that information. Fortunately, they had the money to spend for that legal battle. Your average citizen submitting public records requests to Oakland doesn’t have those sorts of resources. And Oakland takes full advantage, let me tell you. Hopefully, that will stop soon.

As I have mentioned in previous posts, I submitted a complaint to the Public Ethics Commission more than a year ago, regarding the City’s abysmal record at producing timely and comprehensive responses to my public records requests. I have also since filed a lawsuit. Have I seen any improvements since then? No. I recently submitted requests to both Jean Quan and Jane Brunner. Both ignored for over 10 days, until I hounded them. (The law requires a response within 10 days). Quan produced documents; Brunner did not. Claimed she didn’t have any, which of course, I don’t believe. Meanwhile, other Oakland folks have contacted me from time to time to share their own, similar experiences. One guy submitted a request to Desley Brooks, for her calendars. She refused to produce them. The City Attorney then sent this guy an email informing him that they would not represent Ms. Brooks in her refusal to produce the records. I interpreted that to mean that they knew there was no legal justification for her refusal, and were throwing her to the wolves. So another complaint with the PEC was filed.

Meanwhile, at the last PEC meeting, they acknowledged that there appeared to be a systemic problem with the City failing to comply with the Public Records Act, and ordered a full hearing of the matter. Hallelujah! Finally - there will be some light shining on the multiple abuses that have been going on for years. One of the commission members requested that the hearing take place before the end of the year (when the term of several members expires). While the Executive Director seems determined to drag things out as long as possible, hopefully we’ll have the hearing sooner rather than later. Anybody with a sob story to tell should be invited, so let me know if you have something to contribute.

I wish we had investigative journalists like they do at the L.A. Times. There are so many scandals and abuses here in Oakland that don’t get due coverage. Like blatant and systematic violations of the Public Records Act. Like the fact that there is no proper monitoring of employees other public officials having to file conflict of interest statements. Like the fact that budgets involving tens of millions of dollars are overseen by children. Like the fact that we have a billion dollar budget and the City can’t find the money to pay for even a minimum number of police officers. But let’s hope that exposing the public records abuses, and paving the way for better access, will keep Oakland from becoming another Bell.

Jean Quan Can't Do Math Or Comply With The Public Records Act

2010-10-06T17:51:00.000-07:00

Are these the qualities we need or want in a mayor? I think not. But given that this is the same person who led the school district into bankruptcy, and is well on her way to dragging the City down the same road, you probably should not be surprised.

As you may be aware, Jean Quan is campaigning all over town bragging about her successes with Measure Y, and how, as a result, crime is "down 40% in the last three years." Well, I had reason to doubt that claim, so I sent her a public records request two weeks ago, seeking all documents supporting that claim. More than 10 days went by, with no response, so I sent a follow-up email yesterday, reminding her that there is a pending lawsuit and PEC complaint on this issue. Here is the response I got today:

"The information on the decrease in crime came from the Oakland Police Department’s Part 1 Crime Report, which can be found at http://www2.oaklandnet.com/Government/o/OPD/s/Statistics/index.htm. This information is the same as the FBI Part 1 Crime Statistics.
Councilmember Quan was specifically looking at the Oakland Police Weekly Crime Report’s Total Part One Crimes, for her annual information, which shows a decrease of 10 and 14 percent for the previous two years. For this year, she has employed different numbers which are dependent on the statistics for a given month regarding year to date totals. Thus, earlier this year the Chief noted a 34 percent decrease, while last month the figure was a decrease of 16 percent and there is a 15 percent decrease this month."

So I referred to the source documents she cited, and found that they contained totally different numbers. The "summary of Part 1 Crime Offenses" for 2008 lists a total of 29,394. But according to a January, 2010 press release from OPD, the total was 31,917. The total for 2007 was 31,489. Regardless of the actual totals for 2008, they were either flat with 2007, or slightly up. They certainly did not go down in any significant amount, according to any of the data cited.

Turning to the January, 2010 press release, it shows a total of 28,867 Part 1 crimes for 2009, down 10% from 2008. Okay, so serious crime did go down in 2009. By 10%. Now, let's turn to 2010. Keep in mind that the police publicly announced a few months ago that due to layoffs, they'd no longer respond to certain crimes, and reports had to made on-line. That will certainly help crime statistics, won't it? Even assuming that people will still report Part 1 crimes (the most serious crimes), Quan's numbers still don't add up. According to the most recent "weekly crime report," (available on the OPD website) Part 1 crimes are down 15% this year, to date. So where is that 40% drop she's claiming coming from?

Even looking at the "YTD" figures for this week's crime report for Part 1 crimes, it shows that in 2008, this time of year, we were at 22,011 total part 1 crimes. Now we're at 17,325. Okay, that's quite a nice drop. But not nearly 40%! In order to be a 40% drop, the number of Part 1 crimes to date would need to be 13,206. Instead, we're looking at a 20% drop in crime over two years, not a 40% drop over three. Of course, if you're Jean Quan, a few misplaced zeros or decimal points don't seem to matter. Nor does missing the deadline for responding to public records requests. Which is just one of the dozens of reasons her name will appear nowhere on my IRV ballot sheet.

Shame on the League of Women Voters

2010-09-27T22:37:00.000-07:00

One of the main missions of the League of Women Voters is promoting “good government.” So imagine my disappointment when I learned that they had endorsed ALL of the tax measures being proposed by Oakland for the November election. I immediately sent an email to our local chapter leaders asking what information they relied in making their recommendation, and how this fit into their agenda. No response.

Today, I showed up at their “hot topics” meeting to hear them explain how they reached their inexplicable decision. They prefaced the presentation on the local ballot measures by explaining that their endorsement was based on the fact that “Oakland needs the money.” End of story. Now, the League is supposed to be “non-partisan,” but frankly, I can’t imagine anybody but a left-wing Democrat subscribing to such a position. The presenter, reading intently from her notes, explained that Measure X guaranteed no layoffs of police for three years, and promised that the police would begin contributing to their pensions. Probably somewhat impertinently, I announced to the group that Measure X said no such thing. The group stared. I clarified that no such language appeared anywhere in the ballot language, although the police union and the City were mounting a misinformation campaign on this issue. The League co-president piped up, stating that she had spoken the union president himself, and that this information came directly from him.

At that stage, I was incredulous. The LWV refused to respond to my emails, and yet consulted with the president of the police union, and passed on his lies and propaganda as if it were the gospel, and as if it were contained in the ballot measure itself! I gave the leaders a royal tongue lashing, and then let them move on to Measure BB. One member of the audience asked if the community police officers would at least be restored. The presenter stated that she had called the City Administrator representative who oversees the Measure Y Oversight Committee, and he told her, probably not. What? (She must have misunderstood - even the City wouldn’t sink the BB campaign!) I asked if it was Jeff Baker she had spoken to. She couldn’t say. By now, I was practically falling out of my chair. They were calling the union president, and the City Administrator’s office, and simply passing along the information without any interest in verifying it! Worse yet, I had gone out of my way to contact them, and they ignored me. Now, I should mention that the co-president actually called me out of the room and apologized for not calling me back, and asked me not to blame the League, but the reality is that all of these so-called government watchdogs were complicit in promoting the misinformation. I again voiced my disappointment and outrage, and provided the accurate information on Measure BB, but what more could I do?

At the end, the co-president meekly delivered the same apologist rhetoric delivered by our pathetic city officials, about the recession, how they could never have predicted the revenue shortfall, blah blah blah. Gag me. Afterwards, one of the members encouraged me to join the LWV. When they actually show the remotest interest in upholding the values they’re supposed to be promoting, let me know. Until then, I won’t waste my time.

Does Measure BB Permit Fire Station Closures?

2010-09-26T20:02:00.001-07:00

Despite the City’s rhetoric that Measure BB only makes minor, technical changes to the language of Measure Y, it now appears that the measure may do more than gut the police staffing requirements; it also appears to eliminate the requirement that all 25 fire stations stay open.

That’s right. There is a change that was slipped into Measure BB that the City Council failed to discuss at either open session council meeting, and which they may not even have been aware of. The voters certainly won’t be aware of it, because it is not highlighted with underlining or strike-out, as all changes to Measure Y must be in the new measure. The result? Major confusion.

How did this happen? I’ll tell you how it happened. My first lawsuit highlighted the fact that Measure Y did not clarify which fund was supposed to pay for the recruitment and training of new police officers. My second lawsuit highlights the fact that despite the clear requirements of Measure Y, the City never “expanded” paramedic services, and never established mentorship programs at each fire station. So in the original draft of the “Measure Y fix,” language was included to address both of these issues. Neither language change was discussed at either council meeting - neither the meeting on July 22, nor the meeting on July 26. Instead, at the end of the July 22 meeting, when everybody was probably exhausted, Jane Brunner implied that something less than a quorum should meet to discuss the matter further (to avoid those pesky Brown Act requirements) and that the language changes should be kept to a minimum, in fear that voters would think something shady was afoot and not approve the measure.

Mysteriously, a new version of the “fix” was drafted on July 23. This version eliminated the two changes discussed above, except….it didn’t. Somehow, the language eliminating 25 fire station requirement remained, except without the required highlighting. (All changes to the language must be highlighted with underscoring or strike-through). At the July 26 meeting, the Council failed to discuss any of these new changes. In fact, I don’t even think they allowed public comment on the new version of the document. With virtually no discussion whatsoever, the “fix” was unanimously approved for placement on the ballot. To be honest, I actually thought the changes regarding police academy training and the fire department were still in the “fix,” until I got my voter information pamphlet over the weekend, and realized they weren’t in there. So then I watched the videos of the July 22 and July 26 meetings to figure out what happened, and realized those changes were eliminated, without any discussion! Except that the one change actually slipped through, without any notice!

So now, in the City Attorney’s “impartial analysis,” we are told that there is a specific change to Measure Y in terms of only requiring “up to” 25 fire houses, as opposed to actually requiring maintenance of all 25 fire houses. But a few sentences down, we’re told that all the changes are supposed to be indicated in underscoring or strike-through. Only problem is, the “up to” language regarding the firehouses isn’t highlighted in the required manner. The result: total confusion as to whether Measure BB actually makes a very significant change in the requirement that the City be guaranteed that all 25 fire stations remain open!

I have written to City officials to advise them of the problem, and will keep you posted.

Let’s Do Some Factchecking Before MYOC Takes A Formal Position On Measures X and BB

2010-09-16T18:59:00.000-07:00

On Monday, September 20, 2010, the Measure Y Oversight Committee will consider taking a formal position on parcel tax measures X and BB. I encourage any of you who care about this issue to come and speak. I never ask you guys for anything, but this, I would really appreciate. I hope that after reading the following, you are as mad as I am, and have something to say about it. The meeting starts at 6:30.

Unfortunately, I missed the August 16 meeting, where City Administrator Dan Lindheim gave his spiel on these measures. Now, I should mention that a California Supreme Court decision, and the Government Code, formally prohibit public officials from using public resources to advocate for or against a ballot measure (or candidate). I had no problem with him showing up at last weekend’s Alameda County Central Democratic Committee endorsement meeting, because how he chooses to spend his Saturday afternoons is his business. But if he shows up at City Hall (a “City resource”) to provide “information” to the MYOC as a City Representative, it darn well better be neutral and “informational only,” as the law requires. In reviewing the verbatim speech he gave, it was hardly that, and here I’m going to take him royally to task:

Measure X

* Most Taxpayers Will Pay Zero to $10, not $360: Lindheim claimed that even though the tax is $360 per parcel, “the reality is for most citizens in Oakland the cost would be between $0-$10; the only persons subject to $360 would be single family homeowners who did not itemize their taxes since property taxes are deductible.” Excuse me? Who does Lindheim’s tax return? The same guy who does the Mayor’s? Why am I not surprised? I’d love to see some documentation to back up this ludicrous claim. Come to think of it, I think I’ll do a public records request….

* Rehire of police officers: Lindheim claimed the money raised would be sufficient to rehire the 80 laid off officers. Yes, but he neglected to mention that a lot of them would have already found new jobs, and wouldn’t be available for rehire. And he didn’t mention that with attrition at 50 officers a year, the force is still going to sink like a rock.

* The City Will Be Able To Do Whatever It Wants With The Money: Okay, this is honest. Lindheim said that Measure X “was written in a reasonably open manner to allow funds to go where needed and where City Council would designate.” Fair enough - but after Measure Y, do you trust the City with your money? Do you want your money to continue supporting bloated police pensions?

* Lindheim Doesn’t Know Anything About the Phrase “Rigorous Oversight” Lindheim stated the City Attorney’s office drafted Measure X. However, he wouldn’t say who was responsible for including the language that it provided for “rigorous oversight” in the ballot title.

Measure BB

* There’s Only One Change: Lindheim claims the “fix” makes only one change to Measure Y - i.e. eliminates the “appropriate” for 739 officer language. Not true. It makes numerous changes. It allows the City to borrow against the money in the hopes that this measure passes. It eliminates the restrictions on the types of violence prevention programs that can be funded. I guess Lindheim didn’t take the time to read the ballot measure that closely….

* The City Doesn’t Care About Police - Just Violence Prevention: Lindheim said: “Given the financial situation of the City, the view of City Council is the overriding need to provide resources for violence prevention functions, thus the Measure to suspend the 739 police officer appropriation for three years.” Well, at least that’s honest! The City is pretty much saying screw the police, and hand over all the money for violence prevention. Guess it’s more important to let those non-profit directors continue collecting their $180,000/year salaries than have the police actually respond to calls for service.

* The City Losing My Lawsuit Was No Big Deal: Lindheim said that the audit standards “have already been met and the judge has dismissed the issue.” No, not exactly. The judge ruled that the City failed to conduct the mandatory audits. The City decided not to appeal this issue, subsequently did the audits. I thought they were crappy, but the judge said it wasn’t his job to evaluate their quality, so we’re stuck with them.

Next, Lindheim totally glossed over why the City has been ordered to repay the Measure Y fund $15 million. He said “only some of the new officers were charged to Measure Y funds but not subsequently placed in Measure Y positions.” Not true! No new officers were EVER placed into Measure Y positions. He concluded by saying: “The consequence of the ruling is to move money from the General Fund to Measure Y - thus, net-to-net, it probably does not make much difference.” Oh puh-leez! If it doesn’t make much difference, then why is the City appealing the ruling? Where is the City going to find another $15 million in the general fund? This type of argument is just sad, and indicative of why the City is in the mess it’s in.

* Lindheim Doesn’t Know What The Word “Substantive” Means: Lindheim kept claiming that the modifications in Measure BB were not “substantive.” Okay, totally eliminating the purpose of increasing the size of the force isn’t “substantive?” Eliminating all the requirements for the fire department isn’t “substantive?” Time to brush up on your vocabulary, Dan.

I’ll be there on Monday evening to vociferously encourage the MYOC to formally not endorse these measures, and to help keep the focus on the facts. I hope you’ll join me.

Hitting The Campaign Trail

2010-09-14T21:30:00.000-07:00

As if I didn't have enough to do with two lawsuits on my hands, I now find myself taking the lead in the opposition to the renamed "Measure BB" - i.e. the "Measure Y Fix." (It was going to be called Measure Y, but I guess people realized that could get confusing).

On Saturday I attended the Alameda County Central Democratic Committee endorsement meeting, and got less than five minutes to debate City Manager Dan Lindheim. He appeared to have a profound misunderstanding about numerous aspects of my litigation, which I subsequently tried to correct, but I'm not sure how much he cares about those sorts of details. His argument basically boiled down to, the City is broke, there are no other options, and my lawsuit was all about unimportant minutiae. Sorry, Dan, but misspending of $15 million and failure to conduct mandatory audits don't constitute minutiae in my book. And I think considering it as such is exactly why Oakland is in the pickle it's in.

On Monday, Jean Quan had a press conference, to which I was not invited, and she had a group of violence prevention folks, all of whose salaries get paid out of Measure Y funds, extoll their own virtues. Reading her press release, I realized it was time to launch another blog devoted to countering the myriad of misstatements. And so, http://noonmeasurebb.blogspot.com was born.

Thursday, I'll be addressing the Metropolitan Great Oakland Democratic Club. And hopefully, as the campgain season gains steam, I'll have numerous other opportunities to debate the issues. In the meantime, check out the new blog.

Newsflash: No Agreement Between OPOA and City Regarding Tax Measures and Layoffs

2010-09-03T13:07:00.000-07:00

In a story published by the San Francisco Chronicle on August 10, and republished widely (including by the Wall Street Journal), it was reported that there was an agreement reached by OPOA under which the union members would pay more into their pensions, and accept a later retirement for new hires, if the $360 parcel tax is passed in November. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/08/10/BABM1ERE21.DTL&feed=rss.crime

The story goes on to say that “if voters pass the ballot measure, the City Council has agreed to lay off no officers for three years.” The same news was reported elsewhere, on the KTVU website. http://www.ktvu.com/news/24570454/detail.html

In any event, I was very curious to see the agreement between OPOA and the City with this “no layoff” provision. So I did a public records request. For once, I got a timely response. And guess what? There is no agreement! It does not exist!

I’m not sure who to fault here. Was OPOA lying? Or did the City really make such a promise, and OPOA was so incredibly naïve that they never asked for it in writing? Or did the press just get it wrong? In any event, the real message here is: DON’T VOTE FOR THIS TAX! Apparently OPOA (and maybe the City) want you to believe that if you pass it, there won’t be more layoffs. It is a LIE! There is no agreement.

Postscript 10/14/10: Matthai Kuruvila provided me with two versions of the agreement - one signed by OPOA; one signed by the City. They are dated July 26 and 27, 2010. It is not unusual for an agreement to be executed in counterparts. What this means is that I asked for responsive documents, which the City must have had in its possession, and they were not provided! So in fact, there was an agreement, but the City failed to provide it - leading me to believe that no agreement existed. Yet another blatant violation of the Public Records Act.

Measure Y Oversight Committee Smells The Coffee

2010-08-30T21:54:00.000-07:00

I have to hand it to the Measure Y Oversight Committee - some of them are perking up. Maybe they’re tired of spending hours at boring meetings and getting nothing done, being ignored, and feeling impotent. Maybe they’ve taken some of my criticism to heart. But whatever the reason, I was happy to see some of them making some excellent points and asking some really good questions tonight on the subject of the Measure Y “fix” and the $360 parcel tax.

In particular, a couple of them (Peter Barnett and Joanne Brown) expressed frustration and concern about the City’s use of the term “rigorous oversight” (for the $360 tax) and “no additional cost” (for the fix), when these terms are used in the titles of the ballot measures. One referred to the language as so inaccurate and disingenuous as to be a “fraud perpetrated on the voters.” The City Attorney’s office defended the language by claiming that it had been “considered by the City Council.” (Well, if you can find any discussion of it on the DVD, Mr. Morodomi, you just let me know, because it ain’t there!) Next, Ms. Brown asked if members of the MYOC could face potential liability for not exercising “rigorous oversight,” when everybody knew full well they didn’t have the tools to do that. Mr. Morodomi responded that if it’s not in the actual text of the measure, then there’s no obligation, and basically told her, don’t worry about it. Oh, I get it - you can put whatever lies you want into the title of a ballot measure, which may be the only thing voters actually read, and it can be as misleading and inaccurate as the City wants it to be, and has no binding effect. While this is the same argument they made with Measure Y, to hear him actually say it in this context made me nauseous. How do people like that sleep at night?

But the piece de resistance was Jeff Baker, Measure Y Administrator, informing the MYOC that they shouldn’t have allowed me more than two minutes to speak, and that people watching the meeting may have mistakenly believed that I was a City official, as opposed to “merely a member of the public.“ Mr. Baker’s comments demonstrated his clear disdain for “mere” members of the public, as well as a level of idiocy that you cannot possibly imagine without watching the tape for yourself. For those of you who have never heard me speak, there is no mistaking me for a “City representative.“ I was there haranguing the City for its dishonesty and lack of candor in the ballot proposals, decrying the previous failings of Measure Y, talking about my litigation against the City, and he thinks I come across as a City representative? It was positively laughable. Of course, his real purpose was to chastise the Committee for allowing me more than the minimum amount of time allotted - and discouraging any more of my unpleasant “public participation” in the future. And as I pointed out in rebuttal, Mr. Baker would have me barred from the meetings entirely if he could. Given that practically no member of the public ever shows up at these meetings, let alone speaks, the idea of muzzling me, particularly given my obvious interest and zeal in the subject matter, is an affront to the democratic process, and Mr. Baker should be ashamed of himself.

Chair Jose Dorado (who’s running against Desley Brooks for City Council, by the way) wanted to quickly move along to the next item. But Ms. Brown requested discussion, indicating that this was an important topic, and that several of the members were under the impression that the main purpose of the meeting was to discuss how they felt about the “fix” proposal. That Mr. Dorado had no interest in actually discussing the matter spoke volumes. Ms. Brown solicited input from the other (usually silent) members, and many of them, if not most, actually spoke! And they had opinions. And got engaged! I was actually encouraged. Some expressed frustration at the fact that the MYOC was not consulted about the “fix” proposal at all. Others noted that when the MYOC asks for information, they are frequently ignored. They acknowledged that the proposal for “rigorous oversight” was essentially a joke, given what has actually been going on. Particular credit goes to Qa’id Aqeel for actually making a motion to pass a resolution opposing the Measure Y fix. He eloquently expressed that the MYOC is “like a façade” and that the Committee needed to send a message to the City. Kudos to Michael Brown, who came up to me after the meeting to introduce himself and chat. He was obviously a very mature and bright young man. But I still don’t think high school students should be on the committee.

In the end, Mr. Morodomi quickly disposed of voting on Mr. Aqueel’s proposal, claiming it had not been properly agendized. (I thought the description was good enough to meet Brown Act requirements, but clearly, he wanted to rally his troops to squash it). So the matter should be on next month’s agenda. If you have strong feelings about the subject, I urge you to come and speak your mind.

Rebutting The Rebuttal

2010-08-24T20:40:00.001-07:00

All arguments pro and con on the ballot measures for November’s ballot have now been finalized and submitted. While I won’t have the opportunity to rebut the “rebuttal” to my original argument in the voter information pamphlet, I’ll do it here.

The supporters claim that the City can’t meet the minimum staffing/appropriation requirements in the current Measure Y “because of the local impacts of the global recession.” Interesting. None of our neighboring jurisdictions are slashing their police forces, so how is the global recession to blame? The supporters then go on to claim: “Opponents misstate basic facts.” Now, I took grave exception to this. So I called one of the signatories, Don Link (who is a big Jean Quan supporter and thinks she’s a financial whiz bang) and asked him which “basic facts” I had misstated. To his credit, he called me back and was very polite. But he admitted he hadn’t written the statement. He claimed he didn’t know who had, and said he hadn’t actually parsed every sentence. He wasn’t able to cite any specific facts that I had “misstated.” He admitted that Jane Brunner had asked him to be a signatory, and frankly, I suspect that she was the one that wrote this thing, but I’ll save my cross-examination of her for another time. In any event, it was very disappointing that people would just sign something like this, which is going to get presented to all Oakland voters, without checking the facts. Part of my crusade is about accountability and honesty and integrity, and Mr. Link is not supporting that goal by agreeing to sign a statement that he can’t back up himself. While I may use strong rhetoric at times, when it comes to “basic facts,” I don’t misstate them. I have evidence to back up every factual assertion.

The rebuttal goes on to claim that “crime has declined substantially for 3 consecutive years.” So, my understanding of the facts is that crime was down in 2009 and 2008, but I don’t know about this year, and I thought crime was up in 2007. I asked Mr. Link which statistics he was relying on, and he couldn’t cite any. Next, the statement claims: “The City successfully added 150 officers to the police force and staffed 84 Measure Y-related officers (exceeding the 63 required positions.” I stopped interrogating Mr. Link about these “facts” because it was pretty clear by then he didn’t know where the information came from. But seriously, if you’re going to claim stuff like this, you better be able to back it up with evidence. So if you take the police force at its all time lowest level, and its all time high level, maybe 150 officers were added. But we had those extra officers for less than six months! That’s hardly anything to crow about. As for 84 Measure Y-related officers - I’d say that’s a bald faced lie. I challenge anybody to support that number with evidence. The reality is that until I sued the City, only a fraction of the Measure Y officer positions were filled.

The anonymous drafter goes on to claim that “in response to legal challenges, the Court substantially ruled in the City’s favor.” Okay, only a lawyer could have written that. Trust me, not a single one of the signatories knows enough about the lawsuit to make such a claim. I didn’t win on everything, but the Court did determine ME to be the prevailing party and I was awarded my costs as a result. The City hasn’t paid me yet, but the judgment was clearly in my favor.

The other signatories included Jakada Imani (executive director of the Ella Baker Center for Human Rights), Maya Dillard Smith, former chair of the Measure Y Oversight Committee (who now works for Youth Uprising), and Lucy Kolin (co-chair of Oakland Community Organizations.) These are all groups that have a clear financial incentive to keep Measure Y funded. They know which side their bread is buttered on, no doubt about it. The final signatory was Dan Siegel, Jane Brunner’s law partner. The same guy who, last I heard, was representing one of the Mehserle verdict “alleged” looters seen fleeing Foot Locker with an armful of merchandise. Of course, having fewer police on the streets of Oakland benefits clients like that.

The New Measure Y and How To Get a Tax Refund

2010-08-17T21:53:00.000-07:00

The Mesaure Y Castration will be known on the November, 2010 ballot as - you guessed it, "Measure Y." Guess I need to change the name of my blog, huh? Do you think the City did that intentionally? That would just be too clever for them. Anyway, just to give you an update on where things stand, my argument "against" the Measure Y revision/castration was accepted by the City, and Ignacio Delafuente's argument "against" the new Measure X (the $360 tax) was also accepted. I read Delafuente's argument, which was cosigned some other prominent Oaklanders, and I liked it, so that's good.

In the meantime, the City has informed me that there's nothing they can do about my objections to the ballot titles. Since the filing deadline with the Registrar of Voters has passed, we're all stuck with the misleading language (i.e. "no additional cost" for the new Measure Y, and "rigorous" oversight for the $360 tax) unless somebody files a legal challenge. I'll let somebody else take that one on.

A couple of days ago posters asked about class actions and claims against the City. Measure Y actually does have language prohibiting class actions, but that doesn't mean you shouldn't file a claim for a refund. In fact, you better file your claim pronto if you want to piggyback on my efforts. The City may claim that this is a prerequisite to getting your money back. So here's a sample from the letter I sent them - 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.

Arguments Against New Parcel Tax Measures for November Ballot

2010-08-12T17:25:00.000-07:00

Today I filed my formal ballot arguments against the two tax measures I find most offensive. To be honest, I really haven’t studied the others. In any event, my argument against the $360 parcel tax was submitted just in case Ignacio Delafuente doesn’t manage to get his filed on time. The way the rules are worded, city council members get priority in submitting ballot arguments. My thanks go out to the people who agreed to serve as signatories to the Argument Against the Measure Y revision - my attorney/co-counsel, David A. Stein; members of the Community Policing Advisory Board, Marcus Johnson and Jim Dexter, and Charles Pine of Oakland Residents for Peaceful Neighborhoods. Below are the arguments.

Argument Against Measure #2 (Measure Y Castration)

In 2004 voters approved Measure Y, generously agreeing to tax themselves to add 63 police officers to a staff of 739. In the 5 ½ years since, taxpayers have paid over $100 million in Measure Y taxes. The City took the money, but didn’t add the police officers. The City provided the promised staffing for a total of less than 6 months. The City was successfully sued regarding Measure Y violations. An Alameda County Superior Court Judge found that the City misspent millions of Measure Y dollars, and failed to conduct mandatory audits.

Now the City wants to have taxpayers continue to pay and not even promise to budget for the promised police force. This tax will cost homeowners over $90.00 per year. Don’t be fooled. Nothing in this measure prevents the City from reducing the police force even further. If this measure passes, the City can tax residents and reduce the police force at the same time. The City could still continue to lay off police officers, not hold new police academies (resulting in a loss by attrition of approximately 50 officers per year) and layoff police officers. In sum, the City wants taxpayer money, without any promise of maintaining, much less adding to the police force.

The politicians who wrote this Measure Y revision are the same people who have mismanaged Oakland’s finances and failed to properly implement Measure Y. The revision removes accountability provisions and is for their benefit, not the public’s.

We need more police, not less. Don’t give the City a blank check. Oakland’s taxes are already among the highest in the state. This tax does nothing to address Oakland’s structural financial problems. Let the City know that the taxpayers did their part and the City needs to live up to its promises.Vote NO.

Argument Against Measure #3 ($360 Parcel Tax)

This new tax measure will cost homeowners $360 a year, and apartment residents $180 a year, and promises no additional police officers, nor any specific public safety improvements, in return. The City wants to collect $54 million annually from taxpayers, but doesn’t want to commit itself to actually providing additional services.

The City claims that this tax will support “public safety.“ It does not. The tax will permit the City to continue to lay off police officers, and the police force will continue to lose approximately 50 additional officers per year due to attrition. No minimum staffing requirements are provided for. While some money could be used for violence prevention programs, there is nothing in the measure that would require the programs to have any kind of track record, be effective, or even be located in Oakland! As currently written, the City could use most of the money raised to pay for any public safety employee salary and benefit increases. Excessive public employee salaries and pensions are a major cause of Oakland‘s current fiscal crisis. Particularly in this economy, it is not fair to ask taxpayers to foot the bill for this.

Voters approved Measure Y in 2004 and generously agreed to tax themselves because the City promised, in return, that it would provide citizens with 63 additional police officers. Years later, the promised officers were still not hired. The City was successfully sued, and was found by an Alameda County Superior Court to have misspent millions of Measure Y dollars, and to have failed to conduct mandatory audits. The City wants us, the taxpayers, to bail out the politicians.

This tax is going to be more than twice as expensive as the failed Measure Y, and offer even less accountability. Vote No.

And The Lying Begins

2010-08-04T22:00:00.000-07:00

It sure didn’t take long for City officials to start lying to convince unsuspecting voters to support the “Measure Y Castration” and “Money for Nothing” ballot proposals. According to the “Call For Direct Arguments and Rebuttals” related to the ballot measures, the proposed revision to Measure Y will be “at no additional cost to taxpayers.” Well, let’s see, if I’m paying zero dollars now, and I’ll be paying 90 some odd dollars if I approve this modification, that’s - oh yes, 90 additional dollars out of my wallet. So I would have to disagree that $90 is “no additional cost.” Now, I’m sure for some of those City folks who are collecting obscene salaries and pensions, $90 might seem like nothing to them, but frankly, I think it’s an insult to voters and taxpayers, particularly in this economy, to claim that $90 is “no additional cost.” So yes, I think that’s a bald faced LIE, and I’m calling the city on it.

Next, with respect to the $360 parcel tax that promises not a single additional police officer (hence the “Money for Nothing” tax proposal), the City claims that it will be subject to “rigorous oversight by a citizens committee.” We all know what kind of “oversight” Measure Y received. The City considered them to be so impotent and useless that it claimed the members were not required to file Form 700 Conflict of Interest Disclosures - until I filed a formal public ethics complaint about the matter. It is also worth mentioning that Nancy Nadel appointed a 16-year-old child to the committee. Somehow, I don’t think children are capable of performing “oversight” of millions of taxpayer dollars, but I understand some people disagree with me on that point. So by all means, fire your accountant, and hand your personal finances over to your teenager. But not my tax dollars, thank you very much.

Then there’s the minor detail regarding the MYOC’s responsibility for reviewing the annual audits. The audits that never got done, until I sued, proved that the City had misspent $15 million, and that the City had never conducted any of the audits required by law. So, as you can see, the history of “oversight” performed in the past does not exactly give me comfort. Adding the word “rigorous” does nothing to ease my concerns. Rather, it appears to be a word designed specifically to trick voters into thinking that they’ll be getting far more than they actually will.

Now, if the ballot language required that the members of the “oversight committee” needed CPAs or comparable backgrounds in government finance, and needed to be at least of voting age, and would be subject to a “rigorous” screening process, well, maybe then I could go with the word “rigorous.” But given the current selection of potted plants occupying the MYOC seats, I would hardly consider the type of oversight currently offered to fit the definition of that term. I don’t thnk this new tax offers anything more.

So, folks, just when you thought your City government couldn’t lose any more credibility, we get this. It’s just a taste of what’s to come. I look forward to many more blog entries critiquing the misleading, scandalous lies that the City and its campaign supporters will no doubt try to fill your eyes and ears with. Until then, I have filed a formal objection to the proposed ballot descriptions with the City. I’ll keep you posted, but I’m not holding my breath.

The Fix Isn't In Yet

2010-07-27T19:42:00.000-07:00

At Monday night’s meeting, the council voted unanimously to place revisions to Measure Y on the November ballot. That was to be expected. But the council also approved the ridiculous $360 “dollar a day” new parcel tax for placement on the ballot as well, as part of some sort of proposed deal with the police union. I haven’t seen the revised ballot measure language (if, indeed, it is going to be revised) but apparently OPOA will agree to support the measure (and presumably pay for all the misleading, extortionist propaganda you are likely to see soon clogging your mailboxes) and in exchange will agree to “gradually” start contributing to their pensions.

The only ones who will benefit from the new parcel tax are the incompetent City officials who are trying to bail themselves out on taxpayers' backs, and the greedy police union and its members. I’m not sure if part of the proposed deal with OPOA will include rehiring the 80 laid off officers, or any other sort of no-layoff provision. But it hardly matters. The new parcel tax itself doesn’t have anything about any sort of staffing guarantees. And the City is still refusing to pay for or schedule any new academies. That means taxpayers are being asked to pony up around $54 million a year, with no promise of any additional staffing, and a guarantee that the police force will drop by around 50 officers per year simply by attrition. So in four years, you will have paid over $1400, and police staffing will be at 486. In fact, under the proposed language, staffing could drop to zero, and the City could continue collecting the tax. No doubt the language is written this way to avoid any more lawsuits, and because they know I go over all this stuff with a fine tooth comb. But the reality is, they get all the money, and we will probably get NOTHING.

Yes, maybe some cops might get hired back. But under the proposed language, this is not required. And as we now know, the City doesn’t even do what it is legally obligated to do. If those legal obligations don’t exist, they’ll do even less. Why, apparently just today, at a press conference (to which I was not invited) Dan Lindheim claimed that the City did everything it was required to do under Measure Y, and wouldn’t even acknowledge that it had lost a lawsuit that is likely to cost it $15 million. Does this sound like a government that you want to trust even more of your hard earned cash to? And do you really want to pay $54 million a year just so police officers can continue collecting their six figure salaries, retire at 50, and go off and buy an island in Fiji? I didn’t think so.

As for the “fix” on Measure Y, the City’s definition of “fix” is to eliminate any obligations that previously existed. Measure Y was sold to voters as a way of increasing police staffing and enhancing public safety. Now, they just want all your money, without any of the obligations in return. Of course, some people will claim, oh Marleen, but if we don’t do this, the City will lose $20 million a year, and then we’ll have to lay off even more police, is that what you want? Yes, this is the argument the City and the greedy police union and the greedy NGOs will all be making. And no, I don’t buy it. Because if the City were really going to use the money to hire officers back, and prevent layoffs, then they’d be willing to make those commitments in writing. But they’re not doing that. And why aren’t they doing that? Because they know that this $20 million, or $74 million, or however much they’re trying to extort from us, is not enough to really bail the City out in any meaningful, long term way. Because the City’s fiscal crisis is way bigger than they want to admit. See this article published recently in the Trib. http://www.insidebayarea.com/oaklandtribune/localnews/ci_15536013?source=email Supporting any of these measures will do nothing to solve the City’s structural problems or cure elected officials of their addiction to wasting our money.

And just one more bit of happy news, in case you missed it. Jane Brunner’s law partner, Dan Siegel, is representing one of the Mehserle looters. Excuse me, I mean, “alleged” looters. You got it, folks. Our City Council president’s own law firm is arguing that a guy seen fleeing Foot Locker with an armload of stolen stuff isn’t guilty of looting an Oakland business. You can’t make this stuff up.
http://www.indybay.org/newsitems/2010/07/27/18654790.php

The Origins Of The Measure Y "Fix"

2010-07-17T05:35:00.000-07:00

The City has finally released the proposed language for "fixing" Measure Y. The part about eliminating any budget appropriations for 739 officers we all expected. What this means is the city will be able to start collecting the tax again if it passes (they claim they have now stopped) while at the same time deleting any police staffing requirements. The reality is that they haven't been complying with this requirement for the past two years anyway, because they failed to budget for police academies. So I sued them. The purpose of the fix is at least partially to get rid of $20 million of potential liability.

The rest of the proposed revisions stem directly from either the first or the second suit. The part about paying for recruitment and academy training is from the first suit. They want to be able to use Measure Y funds to pay for this even if the officer might not be placed into a Measure Y position for 9 years. As it stands now , the city owes the Measure Y fund around $15 million for illegal expenditures. Passage of this revision could reduce that somewhat, although it would be logistically impossible to implement. This proposal is just ridiculous.

Then there's the part about violence prevention programs. Under the current language, Measure Y funds can only be spent on certain types of violence prevention programs for youth. But the city has been spending it on whatever programs they wanted with no regard whatsoever for the limits contained in the measure. I sued them over this in my second suit. So now they're trying to change the language to mirror what the've actually been doing. Pathetic.

Moving along, there's a change related to the $4 million that the fire department gets. I pointed out to the city numerous times they weren't complying with those obligations either. The deputyvfire chief admitted there were no mentorship programs, even though they were promised under Measure Y. So the city is now trying to delete that requirement too.

I have to say I feel truly honored to have inspired a city-wide ballot measure. But please reject it anyway.

The Origins Of The Measure Y "fix"

2010-07-17T05:10:00.003-07:00

A Tragic Day For Oakland

2010-07-13T22:40:00.000-07:00

For more than two years I have been fighting to get the police staffing we were promised under Measure Y. Today, 80 police officers were laid off. The fact that this means the City can, even by its own admission, no longer collect Measure Y taxes, is no consolation.

While I do think that the OPOA should have shown more flexibility, ultimately, the blame is with City Hall. It is the City's obligation to manage its finances, to provide us with an appropriately sized police force, and not give away the store to excessive salary and benefit demands. Yes, the unions are greedy. But it is management's responsibility to say "no." Our elected officials have utterly failed us. Now, it is our responsibility to get rid of them, not reward them with a promotion!

A few weeks ago, they blamed OPOA for "fear mongering." But you just wait till they start campaigning for the new parcel tax and the "Measure Y fix." Then the real fear mongering will begin, and if the taxes don't pass, the City will blame us. But I know that the blood will be on their hands.

OPD Disbands Measure Y Community Policing While City Continues To Collect Measure Y Taxes

2010-07-06T20:34:00.000-07:00

How can that be, you might ask? Well, this is the City of Oakland, after all, where laws and the will of the electorate get short shrift. So I shouldn’t be surprised.

As you may recall, the City originally told voters that under Measure Y, the tax couldn’t be collected unless the City maintained “minimum staffing” at 03/04 levels, that is, 739 non-Measure Y officers. Then, when they couldn’t get their act together and allowed staffing to drop to under 700, and got sued, they claimed that all that was required was “appropriation” for staffing, not actual staffing. Now, after passing the most recent budget, they must fully admit that they haven’t “appropriated” enough to justify continued collection of Measure Y taxes. And apparently within the next week, all of the Measure Y police officers are going to get transferred to patrol. But guess what? They’re still collecting Measure Y taxes!

That’s right. They admit that they’re not “appropriating.” They admit that they have no right to collect the tax. But they’re still doing it. I did a public records request for all documents indicating that they have advised the Alameda County Tax Collector and the various parking lot operators to stop collecting Measure Y taxes effective July 1. I got the response back - no responsive documents. No notices have gone out. The tax continues to be collected. Try justifying that in court, City folks.

Of course, they’re too busy trying to develop the next scheme to deceive the voters and cheat them out of even more money. They’re working on another proposal for a parcel tax. One that will cost you even more money, and with less accountability. Let’s just review what we got with Measure Y. So far, it has cost us over $100 million. We were promised full staffing at 802 for 10 years. What did we get? Full staffing at 802 for less than five months out of five years. And now the City has to abandon Measure Y. So we got 63 officers for less than 5 months, for a price tag of $100 million. Ripoff of the century. Nobody in their right mind would support another parcel tax under those circumstances.

The other ripoff is that Measure Y promised that the fire department would get $4 million a year, the police would get enough for their 63 officers, and the remainder (at least 40%) would go to violence prevention programs. At the last City Council meeting, Jane Brunner, without so much as five second of discussion, told the packed chambers that “Measure Y is off the table.” No doubt, she didn’t want the council to have to listen to a bunch of whiny Measure Y grantees talk about all the wonderful things their programs do and why their funding shouldn’t be cut. And apparently, it’s not being cut. Again, without any discussion. The balance in the Measure Y fund - is that going all to violence prevention? Even though by law, they are entitled to only 40%? Why is the police department not raising a stink about that?

Another thing to think about is my old lawsuit. The one where the judge said the City misspent close to $15 million of Measure Y funds, and has to pay it back. That case is on appeal now, but I expect a decision in the next six months. I also expect it will uphold the trial court’s decision. So what happens to that money? It was supposed to pay community policing officer salaries. How can they justify disbanding the community policing program when it will likely receive, as a matter of law, an infusion of $15 million that MUST be spent in accordance with Measure Y?

They can't. The only thing they can do is spend more of your tax dollars on attorney fees fighting the will of the voters. So that’s what they’ll probably do.

Measure Y Oversight Committee Members Continue to Violate Conflict of Interest Laws and Function As Potted Plants

2010-07-01T21:28:00.000-07:00

As I reported in a previous post, I filed a complaint with the Public Ethics Commission back in November regarding the MYOC’s failure to file conflict of interest disclosure statements, known as “Form 700s.” I also alleged that there were three members of the MYOC who appeared to have conflicts of interest, because they all worked for agencies that receive Measure Y funds.

Now, first of all, you’ve got to ask yourself: how hard is it to find somebody in Oakland that doesn’t work for an organization that receives Measure Y funds? And yet, one third of the members do! Don Blevins (who resigned recently, and worked for Alameda County Probation) was appointed by Ron Dellums. Qa’id Aqueel is the Director of “Safe Passages” for OUSD, and was appointed by Rebecca Kaplan. Michael Brown, a high school student, worked at “Attitudinal Healing,” and was appointed by Nancy Nadel. Even if it isn’t a technically illegal conflict of interest for these folks to serve on the committee, doesn’t it stink to high heaven that they supposedly oversee the doling out of funds to groups that get the money? Not in Oakland, apparently.

So when the PEC first considered my complaint, Executive Director Dan Purnell did a superficial investigation. I complained, and the PEC ordered a supplemental investigation. The new report is available online at the PEC website if you want to check it out, but basically, the high points are as follows: since filing my complaint, the MYOC has been added to the list of City commissions that have to file Form 700s. But despite this fact, only four of them have. They are now subject to $100 fines for not turning them in. From the report, and from what I hear elsewhere, many of the other commissions in Oakland do not diligently file Form 700s, and enforcement by the City has been extremely lax. The report requests the PEC to follow up on this, and I think that’s a very good thing.

Lastly, the report discusses the fact that under Government Code section 1090, the members of the MYOC could be subject to criminal penalties for failing to disclose their potential conflicts of interest, for not having that disclosure recorded in the minutes, and for not abstaining from any discussion on the relevant topics. The report indicates they never took those required actions. The main reason they can't be prosecuted is because, in order to actually violate the law, the person has to have some meaningful role in awarding the contract or influencing the decision in some way. According to Mr. Purnell’s report, the MYOC basically serves no useful purpose. They don’t really make any substantive recommendations. They just sit there and listen to informational reports. So basically, they’re just potted plants. And our prisons are crowded enough already.

City Council Lays Off 80 Cops - Bye Bye Measure Y

2010-06-24T21:58:00.000-07:00

Well, apparently not everybody agrees on that. Council President Jane Brunner announced at the beginning of the meeting that Measure Y was “off the table.” Huh? How can the City adopt a budget that includes 80 cop layoffs and then claim Measure Y is safe? Okay, so I know Measure Y has (or had, last time I checked) a fund balance, but I wouldn’t have assumed it was enough to carry everybody through to November. Moreover, there appeared to be no discussion of how to notify all the necessary agencies (e.g. Alameda County Tax Collector, parking facilities) that they needed to stop collecting Measure Y funds effective July 1.

According to documents the City (finally) produced to me yesterday, it appears that the City’s plan is to continue collecting Measure Y taxes, hoping that voters will approve a measure in November to “fix” Measure Y. The “fix” entails allowing the City to keep collecting the tax even though it has laid off officers. Even the folks at Make Oakland Better Now don’t think that will pass. But the idea that the City can justify collecting Measure Y based on hope, rather than actual appropriation, as Measure Y requires? Well, that takes their shenanigans to a whole new level.

Yesterday I shot off an email to the powers that be that I thought this plan was totally illegal, and that they were asking for another lawsuit. It was a bit difficult to follow what Dellums was saying at the beginning of the meeting, but he seemed to imply that even he didn’t think that this was such a great plan, and that the City was risking additional litigation. Wow.

OPOA’s robo call totally backfired. It was clear that most folks wanted to keep officers, but make the officers pay their fair share. I totally agree with that.

There were a ton of speakers, and massively complicated and controversial proposals in front of them. And somehow, the Council managed to discuss everything and come to a vote in a matter of minutes. It was truly shocking. It was like everything had been decided in the back rooms days before. Like the Brown Act didn’t even exist.

So in the end, the Council approved a layoff of 80 cops. At $180,000 per cop (the City’s numbers) that’s only $14.4 million. They have lost $20 million in the process. So how, exactly, does that save the City any money? I totally don’t get the City’s math. Not that it would be the first time for that, but…. By my calculations, the City needs to lay off 111 cops just to break even for the Measure Y $20 million. And that doesn’t take into consideration the money they’ll lose from COPS. Can anybody out there explain to me what I’m missing?

Who The *@$& Are You To Tell Me To Pay More Taxes?

2010-06-22T21:48:00.000-07:00

If our potty-mouthed mayor stuck his foot any further down his throat it would come out the other end. This is the guy who not that long ago said “get over it” and “much ado about nothing, man” in response to an audit condemning the misspending of federal stimulus money.

So it should come as no shock that when recently confronted about his MIA status, he told KTVU editor Randy Shandobil, “Who the $#*@ are you to decide my role?” http://www.sfgate.com/cgi-bin/blogs/nov05election/detail?blogid=14&entry_id=66269

Mr. Dellums, a thousand dollar suit cannot conceal your utter lack of class and dignity.

Shortly thereafter, at a press conference, he reloaded and aimed squarely again at his foot, claiming, “Why do I care what Jerry Brown thinks?” http://www.sfgate.com/cgi-bin/blogs/nov05election/author?blogid=14&auth=42

As the piece de resistance, he suggested that Oaklanders should “step up to the plate” and pay more in taxes. This, coming from a man who, as far as I know, still hasn’t paid a $250,000 outstanding tax lien. This, coming from a man who promised to take a pay cut, and then never did, because, like the rest of us, he’d rather just keep the money for himself.

Equally to blame, in my opinion, are the City Council members, who stand mutely by while this idiot collects his $187,000 salary, fails to show up to work, and then affronts the citizens with his Marie Antoinette attitude. Watch the video of the Shandobil interview with Jane Brunner - she looks like a deer caught in the headlights when asked about Dellums’ involvement (or lack thereof) in the budget process. Why can’t she just calls ‘em as she sees ‘em? Doesn’t she recognize that all that is necessary for the triumph of evil is for good people to do nothing?

Brunner finally was forced to admit that Dellums was not involved at all in resolving the budget crisis. She deals with the City Administrator on these issues. Dellums is not part of the equation. Again, this didn’t surprise me, because in the more than two years of litigation with the City, and my numerous and regular communications with the City on everything Measure Y, he has had nothing to do with it. Nothing. Nada. Bupkiss. His name has never even come up. He is a non-entity as far as I can tell. Everybody seems to assume that he is an empty suit.

What has always surprised me is how the press have generally given him a pass throughout his administration. Do they feel sorry for him, because they suspect dementia? Are they afraid of his wrath? Since when were the media so hyper-sensitive? Seriously, these most recent quotes are awesome from a press perspective. They get people talking. They sell papers. More importantly, they expose a situation that the public should not tolerate. Keep it up.

Public Safety Advocates Agree - The Pending City Hall Proposals are An Outrage!

2010-06-21T19:28:00.000-07:00

I couldn't have said it better myself. So below I am reprinting Charles Pine's latest entry from his website. (www.orpn.org)

Javier's House and the Folly of Police Layoffs

By Greg Hartwig

(Note: Greg Hartwig has put in many years of volunteer service to his neighborhood and the 18Y community policing beat. This is his report on the real Oakland and what public safety is all about.)

I always figured that the time between a call for service and the response provides some guide to the adequacy of police resources. As I arrived home last night, one of my neighbors informed me that the house of our neighbor Javier was broken into. Some animals used a crow bar to pop his security door. Then they completely destroyed his front door along with the locks and latch.

Javier and his wife are in El Salvador because of the death of a member of the immediate family.

I called it in. It was around four hours before there was a response. Actually, we are not sure what happened because we couldn't stay up any longer. The reason for the delay was standard: too many other calls demanding higher priority.

Any chance of finding the perpetrators in the area was lost. While the crime had already been committed, there was still urgency as the mangled front door needed to be secured. I closed it with a piece of duct tape which was still there this morning. The door remains improperly secured. I am not sure what to do.

Fewer Police? You Must Be Kidding

Now imagine a scenario where we have fewer officers. Imagine it is 200 or any reduction. The public safety results should be obvious.

However, I wonder whether our City leadership has considered the long-term economic consequences of a reduction in officers:

•How would you like to have a property rental business in that kind of environment? Any business?

•Do you think that any company concerned about the welfare of its employees would locate in a city that lacks resources to provide the most basic service necessary for public safety?

Oakland already has a bad reputation that has been dragging our economy down. If a layoff happens, this will worsen considerably. I am concerned it could easily take another decade or more for the city to recover. Bad reputations are hard to change.

In the meantime, both people and companies that would increase the tax base will avoid Oakland, while others leave. We will languish in poverty, crime and street mayhem. Our parks and architecturally lovely homes will decay into ruin.

A headline in the San Francisco Chronicle today reads, "Tech firms flocking to S.F." In spite of Oakland's lower cost, more convenient airport access, excellent location and other advantages, nothing that would add to our tax base "flocks" here. Right now, I would settle for businesses just "coming" to Oakland.

We need to make sure we are looking at Police as an essential investment in our economic infrastructure. The first step in economic development is ensuring order and reasonable norms of behavior.

P.S. half a day later: Javier's wife called me from El Salvador. I told her what happened. She is crying her eyes out. I am about to screw their front door shut. These people don't have any money.

City Hall Is Not Kidding

Greg Hartwig's report is one example of what lies behind these statistics:

•According to the FBI, Oakland has the highest violent crime rate in California.

•The police response time in Oakland to priority calls is already three times longer than the average time in California.

So what do city councilmembers suggest doing? Councilmember Quan and three others issued a proposal on June 21, 2010 suggesting no police training academies for the next two years. That is a proposal to reduce the police force through attrition by 100 officers, taking into account the normal loss to resignations and retirements. This cut by refusing to train replacements is in addition to threatened layoffs.

Councilmember Quan proposes rewriting the rules of Measure Y "that would give the City an emergency suspension of the 739 budget requirement." (Weekly newsletter, June 19, 2010) She wants to reduce the police count while continuing to collect the Measure Y taxes.

The first job of any municipal government is public safety. City government is not the school district and not the county. Only City Hall provides the main police force. These councilmembers might as well just propose to declare Oakland dissolved, a no-civilization zone.

Oakland today has half a police force compared with most major cities. Oakland needs at least 1,100 officers, not the 775 we have today. When city councilmembers even suggest layoffs of police, they are advertising to all residents and all business, to all prospective residents and businesses, "This city does not care who violates your home or shop. This city does not care whether someone mugs you on the street."

You can call (510) 238-3266 to register your outrage at the idea of withdrawing even more safety resources from Oakland.

Total Eclipse of Oakland's Sunshine Ordinance

2010-06-17T21:36:00.000-07:00

The Public Ethics Commission has already found Oakland’s lack of compliance with public records disclosure requirements so troubling that it scheduled a hearing and ordered the City to mediation. I’ve already sued the City for documented non-compliance with over a dozen public records requests. And yet, City officials still can’t manage to comply with the legal requirements to save their lives.

As I mentioned in an earlier post, on May 21, 2010, I submitted a Public Records Act request for all documents related to how the City came up with the number of 200 officers for the proposed layoff. You know, this is kind of an important issue. It’s about as dramatic and newsworthy as an issue could possibly get. Here we have a totally understaffed police department already (as documented in today’s Trib) and the City is threatening to lay off 200 cops. The idea and the number appear to have come out of nowhere. And yet, nearly a month later, the City won’t produce a single, solitary document to back up this number. Not one. Worse yet, they won’t even respond to me at all. I have been sending them email after email asking them, when are you finally going to respond? When am I going to get my documents? No response. Nothing. My voice mail to Russo was also ignored. Just how bad does the City want to make itself look when this case finally goes to trial? The mind boggles.

Here I am, this aggressive, litigious, nagging pain in the ass, and they just ignore me. Regular folks wouldn’t even stand a chance. I know I’ve written about this topic many times before, but the problem seems to be getting worse, not better. In the past, I’d least get some sort of acknowledgement. Now, radio silence. Oh, and the City has made ZERO efforts to mediate the issue pending before the PEC. ZERO! So I'm actually going to look forward to the hearing and once and for all expose the fraud, ineptitude and hypocrisy. Should be loads of fun.

Oakland Columnist Byron Williams Gets It!

2010-06-11T15:37:00.000-07:00

Today, Oakland Tribune Columnist Byron Williams wrote about Measure Y and how the whole debacle has compromised trust in government. Check it out here.

http://www.mercurynews.com/columns/ci_15261113

The Murder of Measure Y?

2010-06-01T22:57:00.000-07:00

For the last couple of weeks, the press was all abuzz about some new proposal to lay off up to 200 police officers. Strange thing about this proposal, however, is that it did not seem to have arisen out of any particular City Council meeting. Nor could I find any reports on line, as attachments to regular agenda items associated with council and subcommittee meetings. There was no formal proposal in front of the Council to lay off officers to close the budget gap, nor had this even been discussed at any length prior to me hearing it on the news.

But the release of the information seemed unbelievably well orchestrated, with lots of news cameras and public appearances and doomsday talk. Phone calls were apparently made to numerous recipients of Measure Y funding, encouraging them to come on over to the next Public Safety Committee meeting to beg City officials to keep the programs alive. Never mind that the proposal to eliminate Measure Y funding was not on the agenda. Nor has it been on any published agenda since then.

My requests for public records have met with the usual response. Nothing, until I nagged them, and then more delay. So far, they can’t find a single document to show me having to do with this new proposal to lay off 200 cops. Can you believe it?

At least City officials seem to recognize that if they go forward and adopt a budget that includes any police layoffs, that means bye bye Measure Y. See, there’s this language in Measure Y that says the City has to “appropriate” funding “to maintain” 739 non-Measure Y police officers. The meaning of “appropriate” and “maintain” continues to mean less and less every day, but at least the City still acknowledges that layoffs mean that funding for 739 officers will not be “appropriated,” and therefore, they’ll need to give up Measure Y funding. A loss of $20 million to the City. But hey, that puts $90 per parcel back in homeowners’ pockets, and is a huge, huge disincentive for them to actually lay off officers. This is the accountability provision that was put into Measure Y for exactly this sort of situation.

So imagine my shock and horror when I found out Jean Quan wants to get rid of this provision. Yeah, you heard right. In her weekly newsletter, she made reference to some new proposal being brought back to the Council at the end of the month for a new and improved Measure Y, that is devoid of accountability. Now, interestingly, this proposal was never agendized on any City Council or subcommittee meeting. I know of no motion or resolution directing City staff to develop such a proposal. But if individual City Council members like Quan violate the Brown Act and try to throw their weight around City hall without having to jump through all those pesky legal hoops, well, that would pretty much be par for the course.

Will the proposal be to put a revised version of Measure Y on the November ballot, giving the City all the money, but with none of the accountability requirements? Will it include these sorts of revisions to Measure Y, plus the added insult of yet another $20 million parcel tax? Are these people totally bonkers? I thought they had reviewed the “polling results” (which the City claims it doesn’t have) and found out another parcel tax doesn’t have a snowball’s chance in hell of passing? Why would they waste their time with such nonsense?

The release of the “proposal” was probably a negotiating tactic to get the police union to make significant concessions. Which they should. The idea that they don’t even contribute to their pensions is outrageous. San Francisco public employee unions just make a bunch of big concessions, meaning that SF isn’t going to lose any public safety employees. So Oakland should get concessions too, especially from OPOA. But the layoff threat could also be designed to scare us all into voting for another parcel tax. Sorry, but those tactics don’t work and me, and they shouldn’t work on you either. I encourage you all to write to your City Council members and speak at the upcoming budget meetings and just say NO to any new parcel taxes! And tell Quan to do us all a favor and drop out of the Mayor‘s race.

Judge Issues Ruling On Measure Y Injunction

2010-05-27T12:58:00.000-07:00

Today, Judge Roesch of the Alameda County Superior Court ruled that my lawsuit against the City can proceed. However, he ruled that the City can continue collecting Measure Y taxes while the case proceeds to trial.

The basis of my request for injunctive relief was the fact that the City admits that it has not “appropriated” sufficient funds for police academies, nor has it actually held necessary academies. The City also admits that in order to collect Measure Y taxes, it must at least “appropriate” sufficient funds to maintain a baseline staffing of 739 (non-Measure Y) officers. I argued that because the City is currently broke, if I eventually prevail, the City will need to refund $40 million of taxpayer money, to the taxpayers - money that it doesn’t have. Therefore, I argued, there would be “irreparable harm” to the taxpayers. Admittedly, there is a very high threshold for getting such an injunction, but I am still disappointed to report that the judge declined to grant the injunction.

However, today, for the first time, the City articulated its new defense of its reprehensible conduct: it is claiming it does not need to “appropriate” any money at all for recruitment or academy expenses that are necessary to keep the force at 739. It argues that the word “maintain” in Measure Y only applies to salaries and benefits, not actually doing what is necessary to “maintain” the number at 739 (which would include scheduling regular academies). First, this is completely contrary to the argument the City made in the first lawsuit. More importantly, this is a positively ridiculous argument! The City is basically saying it can allow the police force to drop 55 officers a year (which is how much it would lose every year due to attrition) and this is all perfectly legal under Measure Y! Under such a theory, the force would drop to near zero(!) over the course of the 10 years planned for Measure Y, and they would still be entitled to collect the tax! People, these are the crooks that you have trusted your money to. Can you believe such gobbledegook? No wonder the City is on the verge of bankruptcy!

Watch the KTVU news story here
http://www.ktvu.com/video/23704011/index.html

Judge Rules City Does Not Need To Provide Accurate or Meaningful Information in Annual Parcel Tax Audits

2010-05-25T13:18:00.000-07:00

Today Judge Roesch heard arguments on the issue of whether the “audits” prepared by the City and outside auditors comply with the requirements of the Government Code and Measure Y. The ruling was disappointing.

As you may recall, one of the arguments I made in my original lawsuit was that the City never conducted the annual audits required under the law. The law requires that the City conduct annual audits that include how much was collected and expended under Measure Y, as well as the “status” of any project funded by the special tax. The judge ruled in my favor on this issue. After nearly a year, the City decided not to pursue its appeal on this issue, and submitted “audits,” which, in my opinion, were just garbage. The audits for the first three years made no mention of the lawsuit or the judge’s ruling that millions of dollars were spent inappropriately. Moreover, very little meaningful information was provided regarding the actual “status” of the projects to be funded. For example, Measure Y requires an “expansion” of paramedic services, and that a mentor program be established at each fire station. The fact of the matter is that there is no evidence that paramedic services were expanded, or that mentor programs were established. In order to be meaningful, the audits should disclose that the “status” of this “project” is that it never happened.

The judge disagreed, and basically said that if taxpayers have an issue with the quality of the audit, they should take this up with the Measure Y Oversight Committee or the City Council. Well, needless to say, I had already done that, and they have shown themselves to be not even remotely interested in accountability issues.

So the lesson here, folks, is that the accountability provisions in the Government Code and parcel taxes themselves are basically unenforceable, and a sad joke for the taxpayers, and that we need to vote the City Council out of office. We expect that when we cough up the cash to fund specific projects, that those projects will get done, and that somebody is monitoring everything to make sure that it does get done. But that hasn’t been happening. The City just wants your money, and if they never do what they promised they’d do with the money, well then, too bad for you. My recommendation to you - don't vote for any more parcel taxes, and vote the current bums out of office.

Oakland Admits Its Budget Is a Ponzi Scheme

2010-05-19T20:52:00.000-07:00

Well, not quite, but almost. What it does admit is that it has not expressly “appropriated” funds sufficient to maintain the police force at 739 non-Measure Y officers, as required by Measure Y. But it claims that doesn’t matter, because it can find the money somewhere in the budget, if need be, and that I can't force them to spend it on new officers. The problem is, it’s nowhere in the budget, and the argument that the money is there, but I can’t force them to spend it, is completely contrary to the intent of Measure Y. How can the City fight crime when it doesn't actually hire the officers it was supposed to with the money we so generously gave? Nevertheless, these are the best defenses the City has to offer against my pending suit.

Next Thursday, my motion for a preliminary injunction (where I am asking the court to order the City to stop collecting all Measure Y taxes) will be heard by Judge Roesch of the Alameda County Superior Court. It should be really, really interesting.

One of the objections people have to parcel taxes is that it lets the government reduce the amount of funding that is supposed to support basic services like the police, so they can spend it on whatever other wasteful garbage they choose (like, for example, loaning money to incompetent bakery owners that drive Ferraris, a chauffeur for the Mayor, legal fees to defeat taxpayer rights etc.). So if the generous taxpayers fork over $20 million a year to the City for police in the form of a parcel tax, the City says, “oooh, looky here, we got ourselves an extra $20 mil, now we can underfund police by that same amount and spend it on whatever wasteful garbage we want!” Some people in City Hall know that people like me think they do stuff like that, so to calm us down, they first told us, “Oh, now, don’t you worry your pretty little head - that won’t happen. Measure Y promises that regular police (non-Measure Y) staffing will be maintained with at least 739 officers out of non-Measure Y sources.”

The City conned us good, they did, and started taking our money. Lo and behold, the force dropped like a rock, and the City got sued. Then the City said, “Oh, no, we didn’t actually mean that staffing would be maintained at 739. What we actually said - if you read the really fine print - was that we would just ‘appropriate’ that money out of non-Measure Y funds. We don’t actually have to employ those officers.” Like money sitting somewhere in a budget is actually going to prevent crime. Yeah, right. So anyway, they’ve gotten away with that argument so far (it’s on appeal now).

Now, of course, things have gone from bad to worse. The City is no longer even pretending to try to maintain the force at its authorized strength. It was at 837, now it’s at 770, and we’re losing nearly five officers a month. No full academies have been scheduled since 2008, and the City pretty much admitted, in documents presented to the Public Safety Committee, that the reason was the “fiscal crisis.” Okay, but Measure Y promises that the City needs to “appropriate” enough funds to “maintain” the size of the police force. So the money is guaranteed to be there. They can’t claim the money’s not there when they “appropriated” it specifically for that purpose. Last week, I got to hear the City’s defense for the first time. And it goes something like this:

“We’re broke. We’re so broke we were actually contemplating laying off officers last year. Then we heard about all this federal funding out there in the form of the COPS grant. But they said we couldn’t get our grubby fingers on the money unless we were actually threatening to lay off officers. So we had to convince them that we were serious. If we scheduled an academy, they’d know we were lying. So we didn’t schedule an academy, and we successfully conned the feds into giving us the money. We deserve a frickin medal! Now, about this ‘appropriation’ language. Well, here’s the thing. We can’t actually show you in the budget where we have money for police academies. But it’s in there somewhere, I swear. Most of it is officer salaries anyway, which is definitely in there. And the rest, well, it’s not that much, and as long as we still have somebody to lay off, or a building we can sell, or mortgage, well, we can find the money somewhere, and that’s all we think we have to do to satisfy the 'appropriate' language under Measure Y. So it’s all good. Really. Trust us. Yeah, the police force is dropping. We couldn't give a rat’s patootie! Measure Y just requires ‘appropriation’ of money. We don‘t actually have to spend it. We can do whatever we want with it. You can‘t force us to actually spend it on officers or fighting crime or anything like that. So just go take a hike.”

This argument is so LAME on so many levels I don’t even know where to begin. But I might start by suggesting that those City officials, with their fancy law and economics degrees and whatnot, might start by opening the dictionary and learn what the word “appropriate” means. Then, I might refer them to the Wikipedia page on “Ponzi scheme,” because their accounting methodology seems awfully similar. I should also point out that their argument does not address why they didn’t immediately schedule an academy after they successfully conned the federal government into giving them the COPS grant. Nor does it explain why they cancelled the last full academy to supposedly save $4.5 million. I mean, if the money had been “appropriated,” then it shouldn’t have been used on anything else. But of course, it was. Also, if the money for recruitment and academies is “somewhere” in the regular budget, why did they need to raid the Measure Y fund in March, 2008 for $7.7 million? (Which, of course, they now owe back, as a result of my previous suit).

The fact of the matter is that the City did not “appropriate” the necessary funds, and the City has been deliberately allowing the size of the police force to drop, because it in effect is the same thing as a layoff, and the City save millions and millions of dollars using this strategy. But not for long, if I have my way. Any of you folks out there still willing to support yet another parcel tax?

Preliminary Injunction Sought To Prohibit Illegal Collection of Measure Y Taxes

2010-04-28T14:05:00.000-07:00

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.

Mr. Dellums, I'm So Not Over It

2010-04-25T19:51:00.000-07:00

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.

Litigation Update

2010-04-19T22:34:00.000-07:00

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?

A Step In The Right Direction

2010-04-07T22:20:00.000-07:00

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.

Will The PEC Support Open Government And Accountability?

2010-03-28T15:54:00.000-07:00

Or will it support lazy government bureaucrats who choose to put their effort into stymieing citizen watchdogs? Find out on April 7, 2010, when the PEC will consider my complaint involving 13 - count ‘em - 13 separate violations of the California Public Records Act and Oakland’s Sunshine Ordinance. As you will see from the Executive Director’s Report, which you can find here http://www.oaklandnet.com/government/public_ethics/April-1-2010/4-7-10%20Agenda.pdf
he was forced to concede that the City had continuously violated the law. For once, a complaint that Mr. Purnell has not recommended dismissing!

But the tone of his report is exceedingly disappointing. Rather than condemn the City for its abysmal track record in making records available to the public, he tries to characterize me as litigious troublemaker who is just taking up too much of the City’s time. Shame on him. But I guess as a government bureaucrat himself, whose time I have admittedly eaten up, that’s where his sympathies are going to lie. Of course a natural solution to the problem would be for the City to start complying with the law - Measure Y and the CPRA - and then I wouldn’t need to propound all these pesky records requests and file all these pesky legal complaints. Too obvious, I know. Why comply with the law when you can steal and waste millions of taxpayer dollars, not to mention employee and concerned taxpayer time?

Anyway, here’s my brief in response to Mr. Purnell’s report. Stay tuned for how the PEC and the City respond.

I. Introduction

The complaint at issue involves a total of 13 separate public records requests, filed pursuant to the California Public Records Act ("CPRA") and Oakland's Sunshine Ordinance, over the course of approximately one year. As indicated in the Executive Director's report, the City has continously and consistently violated the CPRA by depriving me of timely and actual access to public documents. The requests for documents were submitted against the background of my previous lawsuit against the City of Oakland, regarding numerous violations of Measure Y, a parcel tax that promised voters an expanded police force and accountability, but did not deliver the promised officers or the promised accountability. The past lawsuit involved, among other things, approximately $15 million in misspent taxpayer funds, not a minor or trivial amount. I filed the lawsuit to help improve both public safety and public accountability, and ultimately prevailed in on the pivotal claims. I filed the public records requests in the aftermath of the lawsuit in an effort to continue to monitor compliance with Measure Y, and ultimately, have discovered through the public records at issue, that the City has or intends to illegally collect an additional $40 million in Measure Y funds, and has committed numerous other abuses. Therefore, the issues involved are not simply minor, procedural violations, as implied in the Executive Director's report. Rather, they go to the very heart of why it is so important for the public to have access to these sorts of documents.

As a lawyer and litigator well versed in the CPRA and other aspects of public entity law, I aggressively followed up with the City each and every time the City failed to file a procedurally timely, or substantively comprehensive response. I was shocked that, given my background, and the fact that I had already once successfully sued the City, the City to cavalierly failed to comply with the most fundamental aspects of open government laws. It is imperative that every citizen have ready access to public documents, without the need for the type of perseverence that only an experienced litigator is likley to possess. That is the purpose of the CRPA and Oakland's Sunshine Ordinance. I previously requested mediation of this complaint, to which the City reluctantly agreed to, in part only. Even after filing this complaint, the City continued to routinely fail to comply with those laws, and there were a substantial number of documents that I did not receive until after our mediation.

Article II of the PEC’s Bylaws provide that its mission is “To Promote the Highest Confidence in the Ethics of the Government of the City of Oakland.” The “Mission Statement” provides further that: “In order to fulfill this mission, the Public Ethics Commission shall:

1. Encourage full participation in government by heightening awareness of the rights of the public to information about their city government;

2. Facilitate access to such information and meetings of public bodies in the City of Oakland;

3. Help ensure that city officials, employees, boards and commissions, candidates and other persons understand their obligations with respect to state and local laws that are intended to assure fairness, openness, honesty and integrity in government; exercise independent oversight over compliance with applicable state and local laws;

4. Make recommendations to the City Council to improve the implementation of the applicable laws and promote ethics compliance.”

Therefore, my complaints involve the most fundamental rights that the PEC was created to protect. My goal in filing this complaint is for the City to openly commit to improving its compliance with the CPRA, and work with me, in mediation, to develop mutually agreeable procedures to ensure compliance with the law. I have provided Mr. Purnell with fairly detailed proposals in this regard. If the City is unwilling to mediate, or unwilling to develop procedures to ensure legal compliance, then I wish to have a full hearing on this matter.

II. Factual Background

In November, 2004, Oakland voters approved Measure Y, which consisted largely of an $88.00 parcel tax, generating approximately $20 million a year. The majority of the funding was supposed to augment the police force with an additional 63 police officers. Following the passage of Measure Y, instead of the police force increasing in size, the police force plummeted. At around that time, my normally safe neighborhood experienced a rash of armed robberies. One of my neighbors two doors away from me was brutally mugged while getting out of his car one night. In response to the rash of robberies, I made efforts to contact our “problem solving officer,“ only to find out, he had never been hired. I organized a neighborhood meeting and asked our City Council representative, and the police department, to respond to our concerns. They offered little comfort.

In March, 2008, the Mayor proposed, and the Oakland City Council approved an “Augmented Recruitment Program,“ under which the City would take $7.7 million in Measure Y funds, and spend the money on generalized recruitment and training for new police officers. None of those police officers were ever placed, or intended to be placed in Measure Y positions. I had supported Measure Y, and to that point, had been extremely disappointed in its implementation, since very few of the promised “problem solving officers” had been deployed. When I learned of the proposed “Recruitment Program,” I immediately wrote to the Council and high level officials advising them that I believed the plan was illegal. I knew it was illegal based on my background as a litigator who had, previously litigated two cases involving appropriate use of parcel tax or bond funds on behalf of public entities. Despite my pleas, the Council passed the resolution anyway. I then filed suit regarding the misuse of Measure Y funds, among other things. I represented myself, and litigated the case in my spare time. (I have a full time job with a law firm).

Last year, I prevailed in the Superior Court with respect to my claims that the Recruitment Program was illegal, and that the City had illegally spent approximately $15 million of Measure Y funds. I also proved that the City had failed to conduct necessary audits. The City has appealed that decision, likely because it does not have the funds to repay to Measure Y. In the meantime, I have continued to monitor the City’s compliance with respect to Measure Y, largely by the use of public records requests. As detailed in the Executive Director’s Report, the City has rarely complied with the procedural requirements of the CPRA. At times, it has failed to comply entirely with the substantive requirements.

As described in the Executive Director’s Report, I requested that the matter be mediated, and a mediation was held on November 6, 2009. What Mr. Purnell does not mention, however, is that I repeatedly requested that we mediate not only the individual record disputes, but rather proposed remedies to my ongoing difficulty in obtaining records and timely responses to records. Specifically, I wanted to be able to discuss with the City Attorney’s office, and Oakland officials, the root causes for its failure to comply with the law, and work collaboratively to develop procedures that would minimize future legal violations. The City never expressed any interest in discussing the matter. Indeed, at one point I became so frustrated with the ongoing violations that I actually called City Attorney John Russo himself to discuss the matter. The conversation went nowhere.

Despite the City’s recalcitrance in providing records, it became apparent that the City’s violations of Measure Y were continuing unabated. The most serious violation has been the City’s failure to budget and authorize police academies, causing the police force to drop well below the authorized strength of 803. The failure to budget for and actually conduct police academies will result in the police force dropping to approximately 755 by the end of the year (according to the City’s own documents), and will likely drop to 715 by the time any new academy recruits are actually put into position. (This is taking into consideration of four officers per month, and the fact that the academy plus field training takes approximately 10 months). This will have a calamitous impact on public safety, and is an utter betrayal of the taxpayers, who were promised an expanded police force in exchange for their tax dollars. In light of this obvious violation of Measure Y, and other related violations, including continuous violations of the CPRA, I filed suit yet again, on March 18, 2010.

III. Legal Argument

Over the past two years, I have been personally contacted and received phone calls and emails from my fellow citizens and taxpayers who are extremely appreciative for the time and effort I have devoted to trying to improve public accountability and public safety in Oakland. That, after all, is my goal. But against the factual backdrop described above, Mr. Purnell implies that I am a nothing more than a litigious troublemaker who is wasting the City’s valuable time and resources with “minor, procedural infractions.” He states that I have made “multiple demands” on the City and have “unquestionably taxed the City’s ability to produce and monitor the production of records.” These assertions are entirely unsupported by any facts uncovered in his investigation. On the contrary, there is no indication that City representatives were ever asked why they failed to comply with the CPRA, either procedurally, or substantively. Propounding approximately one public record request a month, particularly when the requests are specific and discrete, should not overly “tax” City staff. Moreover, a "good government" advocate should not have any less access to documents than the Oakland Tribune, which presumably submits as many, if not more, records requests every year. To consider the violations as trivial and inconsequential is counter to the purpose of the CPRA the and PEC‘s mission statement, as well as the goals that I am trying to achieve, as described below.

A. The Purpose of The California Public Records Act Is To Ensure Open Access To Government Records, To Facilitate Accountability

The California Public Records Act (California Government Code §§ 6250 through 6276.48) mandates disclosure of governmental records to the public upon request, unless there is a specific reason not to do so.

When the legislature enacted CPRA, it expressly declared that "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." Cal. Gov't Code § 6250. Indeed, in California "access to government records has been deemed a fundamental interest of citizenship" and has emphasized that "maximum disclosure of the conduct of governmental operations [is] to be promoted by the act." CBS v. Block, 42 Cal. 3d 646, 651-652 n.5, 230 (1986). By promoting prompt public access to government records, the CPRA is "intended to safeguard the accountability of government to the public." Register Div. of Freedom Newspapers Inc. v. County of Orange, 158 Cal. App. 3d 893, 901, 205 Cal. Rptr. 92 (1984). As the California Supreme Court recognized in CBS v. Block:

“Implicit in a democratic process is the notion that government should be accountable for its actions. In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.” Id. at 651.

The public’s right to access governmental records is now enshrined in the California Constitution, following the passage of Proposition 59, the “Sunshine Amendment.“ In advocating for the passage of Proposition 59, supporters stated in the voter information guide: “Proposition 59 is about open and responsible government. A government that can hide what it does will never be accountable to the public it is supposed to serve. We need to know what the government is doing and how decisions are made in order to make the government work for us. Everyone needs access to information from the government.” One of the authors providing the “Rebuttal” to the argument against Proposition 59 was none other than our own City Attorney, John Russo, who wrote: “….Proposition 59 will add independent force to the state's laws requiring government transparency. It will create a window on how all public bodies and officials conduct the public's business, for well or ill, while sparing the dignity and reputations of ordinary people, public employees, and even high officials who have done nothing to merit public censure or concern.”

Mr. Russo also proudly takes credit for creating Oakland’s own Sunshine Ordinance, which requires (on paper only, apparently) even more prompt and detailed responses to records requests. In Oakland’s “Open Government Guide,“ he proclaims: “I believe the Government’s job is to conduct the people’s business on behalf of the people, accountable to the people, and in full view of the people. That’s why I created the ‘Open Government Program’ in the Office of the City Attorney.” Ironically, it is now Oakland, the City Mr. Russo represents, and his own office, that are openly working against public access to records.

In reviewing the City’s violations, the following specific provisions of the CPRA should be kept in mind:

6253.1.

(a) When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:

(1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.

(2) Describe the information technology and physical location in which the records exist.

(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.

6253. (c) Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor. In unusual circumstances, the time limit prescribed in this section may be extended by written notice by the head of the agency or his or her designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension for more than 14 days. When the agency dispatches the determination, and if the agency determines that the request seeks disclosable public records, the agency shall state the estimated date and time when the records will be made available. As used in this section, "unusual circumstances" means the following, but only to the extent reasonably necessary to the proper processing of the particular request:

(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.

(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.

(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.

(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.

(d) Nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records. The notification of denial of any request for records required by Section 6255 shall set forth the names and titles or positions of each person responsible for the denial.

B. The City Has Repeatedly Violated The CPRA and Oakland Sunshine Ordinance, Without Explanation

As detailed in Mr. Purnell’s report, the City has continually violated the procedural provisions of the CPRA, and on several occasions, the substantive provisions as well. The violations are not trivial or without consequence. There is no indication that the reason the City failed to comply with the law is that my requests were overly burdensome or time consuming. The law specifically requires that the public entity respond within 10 days. A failure to comply with mandatory timelines is not trivial. Indeed, failure to comply with “procedural” requirements can have dire consequences. Missing a statute of limitations by one day alone can prove fatal to a case.

I should emphasize that if the problem were the City missing the deadline by one of two days, I would not be making such an issue out of this. The problem is that the City continually appears to ignore my requests to the point that I need to nag them and hound them in order to get any sort of response at all. This is neither minor nor trivial. When the City takes months to provide a response, which by law only should take 10 days, the statute of limitations at issue in any potential lawsuit I may bring could be affected. Taxpayer rights could be affected. People’s lives and personal safety could be affected. In addition, I must spend hours of my time making phone calls and sending emails, and filing complaints such as this, in order to get the documents I am entitled to. It is my rights, and the rights of the public at large, that are at the heart of the CPRA and the PEC’s mission.

I am an experienced litigator with expertise in the CPRA, who has already won one of the biggest lawsuits in Oakland’s history. I would expect the City to bend over backwards to comply with my requests. Strangely, my requests are regularly ignored. I shudder to think how ordinary citizens, who lack the legal expertise and persistence that I do, are treated. The purpose of the CPRA is to entitle all citizens, not just aggressive lawyers who are willing to pursue litigation, to responsive documents. If open government is to have any meaning at all in Oakland, the City must demonstrate a commitment to following both the procedural and substantive requirements of the law, and it has not.

Mr. Purnell implies that the reason for the City’s failure to comply must be that I am just asking for too much information. But his investigation is devoid of any information that indicates he ever even asked the City why they continually violate the law. First of all, preparing a response (which can be as simple as an email) within 10 days, acknowledging receipt of my request, and a statement as to when responsive documents can be made available, takes virtually no effort at all. To imply that preparing a 10 day letter is overly burdensome is positively ludicrous. The fact of the matter is that the City simply has no system, or an entirely ineffective system, for intake of requests, and calendaring of responses.

C. Analysis of Individual Requests

1. Request #1 and # 3 Dated March 31, 2009/Amendment dated May 6, 2009: Mr. Purnell concludes that the City failed to provide a 10-day letter with respect to my May 6 request, and provided no responsive documents until after the November 6, 2009 mediation. The redactions to the responses were not properly footnoted, as required by Oakland’s Sunshine Ordinance. No explanation was provided by the City for the violation. This constitutes a violation of Govt. Code 6253(c) and the City’s Sunshine Ordinance.

2. Request # 4 July 29, 2009: I was promised responsive documents by August 21, 2009. However, the response referred to attachments that were not provided. Therefore, not all documents were actually provided by the promised date, without explanation. I did not get all the records I was entitled to until after the November 6, 2009 mediation; redactions were provided without the required footnotes. This constituted a violation of Government Code section 6253(d).

3. Request # 5 dated August 10, 2009: My original request for records was sent on August 3, 2009. I received no response until August 31, 2009, and this response failed to comply with the 10 day response requirement. I did not receive responsive documents until September 21, 2009. This constitutes a violation of not only the 10 day rule (Government Code section 6253(c)) and (d), as well as Govt. Code Section 6253.1. (Public agency must assist in complying with records; request; must not cause delay).

4. Request # 6 dated August 18, 2009: My request was dated August 18, 2009. I received no response whatsoever until September 12, 2009, a clear violation of the 10-day requirement. No records were produced until after the November mediation. This constitutes a violation of the 10-day requirement (Govt. Code Section 6253(c)) as well as Government Code 6253(d).

5. Request # 7 dated August 28, 2009: My request was dated August 28, 2009, 2009. I never received a response in conformity with the Government Code. If it was determined that an exception to the CPRA applied, the City was obligated to provide a legal citation, and a determination that no records could be produced. Instead, the City Administrator designee in charge of Measure Y, and one of parties directly responsible for the violations leading to my litigation, unilaterally decided that I was not going to get the personal email addresses of MYOC members. There is no indication he ever consulted with the City Attorney’s office or had any legal justification for withholding the addresses. No justification was ever provided for providing a “fake” email address. There is no California law whatsoever that would justify withholding an email address. Here, the City violated the 10-day requirement (Govt. Code 6253(c)), as well as substantive provisions of the CPRA requiring disclosure.

6. Request # 8 dated November 25, 2008/Amendment dated December 9, 2009: The City failed to comply with the 10-day response requirement. I received no documents until more than a month later. This constituted a violation of Government Code 5263(c) and (d).

7. Request # 9 dated September 22, 2009: I received no response until October 6, 2009, in violation of the 10-day requirement. Not all responsive documents were produced., Indeed, I received no letter actually complying with the 10-day requirement (I.e. identifying which documents would be produced and when). I did not receive all responsive documents until after the November medication. Mr. Purnell’s report indicated that the City provided responses between September 23 and September 30, 2009. This is incorrect. I have no record of receiving any response until October 6. Only with Mr. Purnell’s intervention, after the mediation, did I receive substantive documentation regarding Measure Y funds and the fire department. This constitutes a violation of the 10-day requirement (Government Code section 5263(c)) and (d) (unnecessary delay),

8. Request # 10 dated October 1, 2009: I received no response until October 13, after the 10 days had expired. Moreover, the response did not contain the information required by the Government Code (e.g. which documents would be produced and when). I did not receive any responsive documents until well after the agreed upon date set in mediation. This was a violation of the agreements reached in mediation, as well as Government Code Section 6253(c) and (d).

9. Request # 11 dated October 18, 2009: While I did receive a letter within the 10 day timelines, I was told to pay over $1000 in order to obtain basic payroll information. Government Code section 6253.1 requires the City to provide assistance to me obtaining the information I am seeking. In the end, the City finally revealed that the officers whose data I was seeking had not been assigned to “desk duty,” obviating my need for records. The City simply could have advised me of this fact without trying to charge me $1000. There is no indication that Mr. Purnell made any effort to verify that this charge would have been necessary in order to “extract” the data.

10. Request # 12 dated December 4, 2009: While I did receive a response within the 10 day timelines, I received no records whatsoever on the date promised (December 23, 2009), nor an explanation for the delay. I received some, but not all responsive documents on January 1, 2010. Follow up email inquiries were never responded to. Only with Mr. Purnell’s intervention did I finally receive responsive documents. This constitutes a violation of Govt. Code section 6253(c) and (d).

11. Request # 13 dated February 5, 2010/Amendment dated February 8, 2010: My request involved a salary survey, for which the City paid $113,000. (It was authorized to spend only $100,000). I never received a document that would comply with the 10-day response requirements. While I did receive some related documents (e.g. the resolution authorizing the survey) between February 5 and February 9. However, contrary to Mr. Purnell’s assertions, I never received most of the documents I requested, nor a 10-day letter advising that responsive documents did not exist. Specifically, I never received the salary survey itself! I spoke to Mr. Morodomi about the matter, and he confirmed that the City could not locate it. I suggested he contact the consultant who prepared the survey, to get a copy, and he agreed that was a good idea. I never heard back from him! In addition, I never received any documents related to how the consultant was chosen, and other documents responsive to my February 8 request. Nor did I receive any explanation as to why I never received any responsive documents.

Mr. Purnell’s assertion that I receive “the majority of the requested records within three or four days” is patently false, and demonstrates his tendency to apologize unnecessarily for the City’s most egregious errors. Here, the City has apparently LOST a survey that cost $113,000! Worse yet, the City apparently never made any effort to present the survey to the Council! If this is the case, then the City was obligated to provide a 10-day response indicating that “no responsive documents exists” with respect to the category of records related to information as to when the consultant’s report was presented to the Council. The City was also legally obligated to try to obtain a copy (Govt. Code Seciton 6353.1), particularly after Mr. Morodomi said he was going to try to do this. The fact that the City would not try to obtain a copy of a document that cost $113,000 is positively shocking. The City clearly violated Govt. Code Sections 6353.1, 6253(c) and (d). To date, I have not received most of the records I requested. I am specifically requesting that the City immediately provide responsive documents.

D. The Commission Should Not Rely On the City Attorney For Legal Guidance With Respect To This Matter

Article V of the PEC Bylaws provides in relevant part:

“Section 2: Legal Advisor
The City Attorney is the Commission's legal Advisor. The City Attorney shall provide the Commission with legal assistance, to the extent such assistance does not constitute a conflict of interest…..”

Several times, in writing, I have advised Mr. Purnell that it would be inappropriate for the Commission to rely on the City Attorney to provide legal assistance with respect to this complaint. I have made clear that I believe that the City Attorney’s Office is one of the main culprits in depriving me of access to responsive documents. The City Attorney’s represented the City in my initial Measure Y lawsuit, and now, in my second lawsuit as well. The City Attorney’s Office has never provided any explanation or excuse as to its and its client’s continuing violations of law, for the failure to have any procedures in place to ensure proper calendaring and prompt and thorough responses. The City Attorney’s Office has refused to mediate regarding implementing corrective measures to these ongoing problems. The City Attorney’s Office is, therefore, a big part of the problem. It is also the official legal counsel to the PEC, and in this case, that is a clear conflict of interest.

IV. Conclusion

As stated above, my desired resolution to this Complaint is to achieve a mediated settlement with the City, whereby the City acknowledges its past failures and commits to implementing policies and procedures that will ensure full compliance with the law. To date, the City has refused to offer any explanation for its past failures, or to meet with me to discuss how the City can improve compliance. However, I am hopeful that the City will recognize, particularly in light of my most recent lawsuit, that the problems are serious, ongoing, and must be resolved. I would much prefer to have the issues resolved in this manner, rather than have to litigate them. Litigation is time consuming and expensive, for both sides. If this matter were to continue to hearing and the City were to lose (which it assuredly would, given the lack of dispute as to the violations) it would have to pay for its own attorney time, as well as my attorney fees. I have no interest in wasting the City’s time and money. Therefore, I ask the PEC to issue in order finding that there is substantial evidence of continuing violations of the CPRA, ordering the City to participate in mediation, and to produce mutually agreeable policies and procedures to ensure compliance with the CPRA and Oakland Sunshine Ordinance no later than August 31, 2010. If the parties are unsuccessful in mediation, or if the City refuses to mediate, then I request that the matter be scheduled for hearing.

Celebrating the Two Year Anniversary of My Measure Y Litigation - By Filing Suit Again

2010-03-19T11:26:00.000-07:00

Two years ago, I sued the City for violations of Measure Y. Yesterday, I sued the City again. I was hoping it wouldn’t come to this, but I came to the realization that I had no other choice. Since I won the first suit, the City has continued to violate Measure Y, and the violations were becoming more egregious than ever. Apparently losing a $15 million lawsuit to a private citizen who litigated the case in her spare time was not sufficiently embarrassing to any of them to wake up and smell the coffee. Hopefully, pouring the steaming pot of hot coffee all over them will get their attention.

At issue in this current suit is potentially $40 million that the City stands to lose - and I mean, really lose. The $15 million from the previous suit just has to be transferred from the General Fund to the Measure Y fund. The City isn’t technically out any money at all - except for all the money it wasted in the process, of course. But in the current suit, my main claim is that the City is not legally permitted to even collect Measure Y taxes in 2009/10, because it did not “appropriate” sufficient funding to maintain a baseline of 739 offices. By not budgeting for or holding academies, the City knew the force would drop by around 4-5 officers every month, and they just let that happen. The language in Measure Y was put in specifically to prevent this from happening. But it has happened, and it will happen again in 2010/11 as well, because there is no way that the City will be able to get the force back up to 803 before July 1, 2010. That’s what they would technically have to do to be able to collect the tax in the next fiscal year.

I’m sure that some people will think to themselves, oh Marleen, how can you do this, the City is so broke, they really need the money now, more than ever. Well, it’s not like I don’t see the point of that argument. I’ve thought about it long and hard. And I’ve really tried to work with the City officials to get them to understand that they need to comply with the law and fix the problems. I told them point blank, over and over, that unless they came up with a plan to address all of this, I’d sue them again. So they can’t claim they didn’t see it coming. They just sat there and let it happen. To themselves. To you. To me. To all of us. We put them in office to run this City - to employ a police force, to ensure accountability. And they’re not doing that - they’re not doing ANY of that. So what are we supposed to do - just sit back and watch while they do nothing? While they continue to violate the law with impunity? While every day, with our diminishing police force, more people are murdered, raped, robbed, and otherwise victimized? Not if I can help it.

We voted for Measure Y to ensure a police force of 803 officers. That’s what we were told. More than five years later, into a 10 year measure, the force is at around 770, and will drop to below where it was prior to Measure Y in a matter of months. The City gets $20 million, and we get - nothing. We got the promised staffing for less than six months. What a rip off. And let me tell you, that’s just the tip of the iceberg. Over the past two years of litigation and meetings and public records requests and what have you, the level of incompetence and mismanagement and lack of accountability that I have seen in our City is just astounding. Mind boggling. Maybe the City really does need to be threatened with bankruptcy, by a lone citizen, to come to its senses. I hope it doesn’t come to that. But in the meantime, the fight is on.

Second Lawsuit To Be Filed March 18

2010-03-17T14:21:00.000-07:00

Here's the press release I just sent out. More to follow soon.

After having prevailed in her initial lawsuit against the City of Oakland last summer, on March 18, 2010 Oakland resident and attorney Marleen Sacks will file a second lawsuit against the City for failing to properly implement Measure Y, a 2004 measure that generates approximately $20 million annually for public safety.

Measure Y was supposed to fund 63 additional officers over and above the 739 officer authorized strength that existed in 2004, when the Measure first passed. In order to collect the tax, Measure Y requires that the City, at a minimum, budget sufficient funds to maintain that 739 authorized strength (not including the 63 Measure Y officers). The City has failed to appropriate the required funds. Therefore, according to this most recent suit, collection of the tax for the 09/10 fiscal year is illegal. Specifically, Ms. Sacks alleges that because the City has failed to budget for or conduct any police academies since the end of 2008, attrition of approximately four officers per month has resulted in police staffing dropping to approximately 770 officers total, down from a brief high of over 830 officers. The decision to cancel the previous academy, and not schedule any new academies, was apparently based on budget considerations. However, failing to budget for academies means that the City failed to appropriate the necessary funding required by Measure Y, and therefore, according to this suit, collection of the tax was illegal.

The lawsuit alleges numerous other violations of Measure Y and related illegalities, including the City’s failure to assign dedicated “problem solving officers” to each beat, awarding grants to violence prevention programs in violation of competitive bidding requirements, awarding grants not authorized by Measure Y, and failure to comply with the California Public Records Act.

According to Ms. Sacks, the decision to file a second lawsuit was not easy. She had hoped that the City would be willing to engage in meaningful settlement discussions, and that the City would be interested in honoring the commitments of Measure Y. However, after numerous months, it is evident that settlement is not currently a viable option. The City already owes the Measure Y fund approximately $15 million for illegal expenditures at issue in the previous suit. While the City has appealed that ruling, Ms. Sacks has filed a cross-appeal, and the total amount at issue from her 2008 suit is estimated at around $60-$80 million. At issue in this current suit is the $20 million to be collected during 2010, which Ms. Sacks alleges should be repaid to the taxpayers, or enjoined from being collected in the future, and several million dollars in violence prevention funds that were illegally spent or distributed.

On the City’s own Measure Y website, the City claims that “the City will maintain a baseline of 739 police officers in addition to the 63 new officers.” During Ms. Sacks’ previous litigation, the City claimed that it was not actually required to employ 739 officers; rather, it was required only to “appropriate” sufficient funding for those officers. However, given the City’s abject failure to schedule any academies to replace officers as they resign or retire, the City has clearly failed to do not even that, making collection of the tax illegal.

“The City’s refusal to conduct necessary academies is particularly offensive given the continuing level of crime in Oakland. We have a new police chief who has publicly decried the lack of adequate staffing, and yet, the City has refused to give him the means to address that problem. It is shocking to me that after the City lost my first Measure Y lawsuit, the City would so blatantly violate Measure Y in this manner. I have brought my concerns to City officials on numerous occasions, and made it clear to them that if the issues were not resolved, that I would sue again. The City has betrayed the trust of the taxpayers, over and over again, and continues to refuse to honor the commitments of Measure Y. In light of the continued abuses, I felt I had no option but to file another lawsuit.”

Fun and Games At The Public Ethics Commission Meeting

2010-03-03T20:37:00.000-08:00

The complaints against Jean Quan and Don Perata for using taxpayer money for political purposes were lots of fun to listen to, but if you tuned out before my complaint got heard, you missed out. Actually, I found the meeting kind of encouraging, because it sounded like at least some members heard the message that dismissing complaints en masse, which has been the past practice, even when the complaints raise legitimate issues, does not serve the PEC’s mission. In particular, some of us spoke about the need for the PEC to take the opportunity to at a minimum, “create a record” about the issues raised, even if they may not rise to the level of requiring a full blown hearing, and using the complaint as a “teachable moment” for City officials and others who have clearly offended others, if not outright broken laws.

In my previous post, I pointed out that my complaint about members of the MYOC not having to file conflict of interest disclosure statements got dismissed, even though it was clear the MYOC had been erroneously omitted from the list of commissions required to file such statements for five years, and even though the City has now agreed to add them. My issue with the dismissal letter was that it was based on a superficial investigation - what appeared to be one short interview with Jeff Baker, the Measure Y administrator. Ultimately, the PEC agreed that Executive Director Dan Purnell needed to do a more thorough investigation. That means lots more work for him, which I’m sure he’s not thrilled about, but even more outraged with me was Mr. Baker, whose credibility I had questioned. In my previous litigation, he claimed the required Measure Y audits had been done. They had never been done, and I proved that in court. That’s dishonest, and I didn't think Mr. Purnell should have taken his statements at face value.

Mr. Baker, apparently a loyal reader of this blog, or else otherwise clued in to my statements, appeared at the hearing to defend his honor, and made a fool of himself in the process. He tried to claim that compliance with the audits was not his responsibility. That’s right, blame one of your colleagues. Smooth move. Like that makes it okay. He’s the one in charge of Measure Y. Just where is the buck supposed to stop? And besides, his competence, and honesty, were not the subject matter of the hearing. But then it got worse, when twice, he stepped away from the podium, glared at me, and spat out the words, “Shameful, shameful! You’ve got a lot of nerve!”

Well, yes, as a matter of fact I do. Suing the City as a private citizen and defending the rights of my fellow taxpayers and two years of nagging and haranguing for accountability and legal compliance does indeed take a lot of nerve. But Mr. Baker did not mean to commend me. He meant to intimidate me. And that, gentle readers, is a violation of the “Code of Conduct” (which I wrote about in my previous post). It requires City employees to be “courteous” to members of the public. I have every right to voice my criticism of City policies, as well as City employees. I don’t expect them to like it, or to like me, but they can’t try to intimidate me or retaliate against me when I do it. Imagine what would happen if a police officer engaged in such conduct against a citizen filing an IA complaint? He’d be disciplined for it! So, that was quite enough drama for one evening. Stay tuned for the results from my next PEC complaint regarding the City’s abysmal compliance with the California Public Records Act!

When The Union Says Jump, The City Asks "How High?"

2010-02-23T20:05:00.000-08:00

Or so it would appear, after solving the mystery of the missing salary surveys. After going into full Nancy Drew mode, I did a public records request for documents indicating that the 2008 salary survey for non-sworn personnel was “inaccurate,” and why it was removed from the internet. I got my answer. Sort of. First of all, it turns out that the City apparently has NO documents indicating that the salary survey is inaccurate. But after I posted it here to support the idea that public employee salaries are to blame for Oakland’s budget woes, Vice President of Local 21 Jeff Levin shot off an email to City Administrator Dan Lindheim demanding that it be removed from the City’s website. He referred to the salary survey as “outdated” and “incorrect” and claimed that the survey “was supposed to have been removed at conclusion of negotiations." His email closes with: “Please have them take it down immediately." And just like my hero, Captain Picard, Mr. Lindheim “made it so." Within hours, he issued the order that it be removed, and poof, it was gone. Not surprisingly, the totally inaccurate and misleading “FAQ” page about Measure Y is still up.

The City is claiming it has no documents indicating that the salary survey is “inaccurate.” But I guess a union leader’s say-so is enough for the City. I was informed that other responsive documents that I had asked for were protected by the “attorney-client privilege.” Can’t imagine too many attorneys getting involved in the discussion about how much employees in neighboring cities get paid, but whatever. The admission that there are no documents showing that the salary survey is inaccurate, and was taken down at the command of a union leader pretty much says it all.

So out of curiosity, I went to Local 21’s website to see what kind of a deal they have with the City. I look at union contracts all the time as part of my job, so I know a sweet deal when I see one, and these folks have some pretty sweet deals. Like 100% premium coverage on a Kaiser family plan. But not too many of you guys have your employer paying for 100% health coverage for you and your eight kids. But Local 21 members do. And they also get full dental coverage that covers orthodontia. Gotta tell you, I have NEVER seen that in a contract; I’m sure it costs a pretty penny. Then there’s the provision for a “COBRA supplement” fund. The City is supposed to put hundreds of thousands of dollars into this fund to pay for COBRA health coverage in the event of employee layoffs. Now, Obama’s plan, the “AARA,” already provides for substantial COBRA subsidies. Under this deal, laid off employees will pretty much get their entire health premiums covered! Unbelievable! Are you starting to understand why we’re broke? http://www.local21.org/chp_oak/tas/Oak_TA_2-of-3.pdf

Now, what did the City get in exchange for all this, you might ask? Well, I was happy to see there was an agreement reached on the “Citywide Code of Conduct,” under which City employees are supposed to deliver, “effective, courteous, and responsible service.” It provides that “proper behavior” includes “promptness” and “efficiency.” Wow. Like we had to negotiate with the union for something like that? Like those things aren’t a given for any employee working in the “real world?” Oh, and the chief labor negotiator for the City got paid $213,000 for one year of negotiating with the various unions. I seriously doubt that’s a full time job. And he gets paid as much as Russo? Well, I guess maybe if you have to negotiate over such basics as an employee being “courteous,” you might be sitting at the bargaining table for eons, but seriously folks!

As for the mystery of the other missing salary schedule - the one done in 2003 that cost $113,000 to study 200 positions? Well, the City has admitted they totally can’t find it! (It never dawned on them to ask the consultant for another copy. Sigh). And it never went to the City Council. They never saw it. Doesn’t seem too “efficient” to me. Is that a violation of the “Citywide Code of Conduct?” On the other hand, when the City informed of these embarrassing facts, they were very courteous about it. Not prompt, mind you, but courteous.

Measure Y Oversight Committee And Requirements To Disclose Conflicts of Interest

2010-02-20T18:01:00.000-08:00

In November of last year I found out that members of the Measure Y Oversight Committee have never been required to file "Form 700s" - forms required by public officials to disclose possible conflicts of interest. Even though every other board and commission in Oakland was covered by Oakland's "Conflict of Interest" code, requiring the annual submission of Form 700s, the MYOC was not included. Moreover, I found out that several of the members of the MYOC were employed by agencies that received Measure Y funds. So I filed a complaint with the Public Ethics Commission. As noted in my previous post, the recommendation of the Executive Director is to dismiss my complaint.

No matter what happens at the March 1, 2010 meeting, I am happy to report that as a result of my complaint, MYOC members will now have to file Form 700s and disclose possible conflicts of interest, because the City approved an amendment to the Code in January. If you're interested, feel free to come to the PEC meeting, which is at 6:30 p.m. In the meantime, here's my brief in opposition to Mr. Purnell's recommendations.

I. Introduction and Summary of Argument

I, Complainant Marleen L. Sacks hereby object to Executive Director Dan Purnell’s recommendation to dismiss Complaint No. 09-16, relating to the Measure Y Oversight Committee’s failure to file conflict of interest disclosure statements, and actual conflicts of interest. In essence, Mr. Purnell recommends dismissal on the following grounds: (1) the MYOC was not listed on the City’s list of committees required to file Form 700s; (2) the MYOC did not need to be listed, because it was merely an “advisory” committee; (3) even though advisory committees may be required to file Form 700s, the MYOC did not, because Measure Y Administrator Jeff Baker advised Mr. Purnell that the City Council did not always accept MYOC recommendations; (4) although members on the MYOC worked for agencies that receive Measure Y funds, they were not required to file Form 700s at the time Ms. Sacks filed her complaint, and their income was from public agencies.

Mr. Purnell’s recommendations should be rejected and the matter should be referred for further investigation. Mr. Purnell’s investigation was inadequate, as he only interviewed one person regarding the duties and functions of the MYOC, to obtain information relevant to the analysis of whether it is “advisory.” The one person interviewed is inherently biased and unreliable, and it appears that the interview was insufficient to conduct a proper analysis of whether the City Council regularly adopts recommendations of the MYOC. Mr. Purnell also failed to consider at all the fact that virtually all other committees and commissions in Oakland that are subject to Form 700 filing requirements are also merely “advisory.” For some strange reason, the MYOC appears to have been the only committee in the City’s Conflict of Interest Code not subject to Form 700 filing requirements. Mr. Purnell never interviewed me or members of the MYOC to see if they had information that contradicted the information provided by Mr. Baker. Mr. Purnell’s recommendation also ignores the appearance of impropriety that exists when members of the committee, who are in charge of a $20 million fund, have the ability to influence decisions regarding which agencies receive that funding, and can steer that funding toward the agencies that employ them. While an exception may exist for public employees, I provided the name of at least one person who I believe works for a non-public agency, and it does not appear that this was investigated either.

II. Factual Background

I am a local resident who has been a licensed attorney since 1992. I specialize in representing public entities. In April, 2008, in my capacity as a private citizen, I filed a writ petition against the City of Oakland for numerous violations of Measure Y, a special tax that generates approximately $20 million a year for violence prevention and police. The only other witness interviewed by Mr. Purnell, Mark Morodomi, was the supervising attorney on the Measure Y lawsuit.

Last year, the Alameda County Superior Court granted my writ petition in large measure, finding that the City had illegally spent what I estimate to be $15 million of Measure Y funds, and that the City had failed to conduct mandatory audits. In my opinion, Mr. Baker, an assistant to the City Administrator in charge of Measure Y, was at least partly responsible for the illegalities that I uncovered. Over the past several years, I have been vocal in expressing my opinion that Mr. Baker is not competent and that many of the problems with administering Measure Y are his fault. I have also been vocal in expressing my opinion that the MYOC is similarly useless, and that had they been performing their functions properly, my lawsuit would not have been necessary.

The City has since filed an appeal of the court’s decision. I have attended MYOC meetings on several occasions and continue to monitor the City’s activities with respect to Measure Y. In the fall of 2009, it was brought to my attention that members of the MYOC have never been required to submit Form 700s and that several members had conflicts of interest, because they worked for agencies receiving MY funding. I therefore submitted a complaint regarding the matter on or about November 18, 2009. Mr. Morodomi advised that the MYOC was not included in the Conflict of Interest Code because it was “advisory.” I then reviewed the list of board of committees and commissions covered by the City’s Conflict of Interest Code. Notably, virtually all of the other commissions and committees covered by the COI Code were similarly “advisory” in nature. Therefore, there seemed no good or adequate reason to exclude the MYOC from inclusion, particularly given the large fund that it oversees.

III. Legal Argument

A. Advisory Committee Members May Be Required To Submit Form 700s

The Political Reform Act , Government Code Section 81000 et seq. (and Title 2 CCR Sections 18110 et seq.) contains conflict of interest provisions to ensure that public officials will “perform their duties in an impartial manner, free from bias caused by their own financial interests or the financial interests of persons who have supported them.“ (Section 81001(b)). Section 87100 prohibits any public official from making, participating in making, or otherwise using his or her official position to influence governmental decisions in which the official has a financial interest, unless an exception applies.

As conceded in Mr. Purnell’s recommendation, FPPC Regulation 18701(a)(1)(A) requires an assessment of the extent to which an advisory body’s recommendations have been followed in the past. If the recommendations a body have a significant impact on the ultimate outcome of a decision, then the body is considered to have decisionmaking authority and ceases to be solely advisory. (In re Rotman (1987) 10 FPPC Ops. 1). There are numerous subsequent FPPC “Advice Letters” that address this issue, and the conclusion of many FPPC investigations is that advisory committees are required to comply with Form 700 filing requirements.

Mr. Purnell’s opinion notes that “newly formed” bodies that “have no history of its recommendations being regularly approved over an extended time” are not considered to have decisionmaking authority. “Once there is a history of a particular advisory body’s recommendations being routinely accepted without amendment or modification, the body converts from a solely advisory function to one of making or participating in the making of a governmental decision and its members are considered public officials subject to the conflict of interest provisions under the Act.” (FPPC Advice Letter No. A-06-118). Numerous other FPPC Advice Letters confirm this position. See e.g. Baird Advice Letter No. A-94-299; Czach Advice Letter No. A-91-503; Woodbury Advice Letter A-90-665; Paley Advice Letter A-90-583; Korade Advice Letter A-89-715; Ball Advice Letter I-89-671.

Other factors that the FPPC considers relevant in determining whether an “advisory” body is nevertheless covered under the Act include whether the officials (1) vote on a matter; (2) appoint a person; (3) obligates or commits the agency to a course of action; (4) enters into any contractual agreement. (Regulation 18702.1(a)). And where an advisory committee has some decisionmaking authority regarding disbursement of funds, it can be considered subject to the Act. (FPPC Advice Letter I-08-067).

Prior to my complaint being filed, virtually all commissions and committees in Oakland, including ones that were solely “advisory,” were covered by Oakland’s Conflict of Interest Code. Only the MYOC was not included. It appeared to be a deliberate, but erroneous, omission, or an oversight.

B. Mr. Purnell’s Investigation Was Inadequate Because It Failed To Probe The Criteria Relevant To Determining Whether The MYOC Is Truly “Advisory"

There is no question that the MYOC is not a “new committee” with no history of making recommendations. In fact, MY has been in effect since January, 2005, and the MYOC was established shortly thereafter. Therefore, the MYOC has been in operation for nearly five years. Mr. Purnell should have conducted a thorough investigation into the factors specified above.

Mr. Purnell’s investigation appears to have limited to asking Mr. Baker and Mr. Morodomi two or three questions. Mr. Baker admitted that the MYOC makes recommendations, and recently recommended adoption of the “outside evaluator’s” report. Notably, Mr. Purnell apparently failed to ask if this recommendation was accepted by the City Council. He took at face value Mr. Baker’s assertion that prior to that, it made recommendations “very rarely.“ First, Mr. Baker has been in his current position for only approximately two years. Prior to that, his position was occupied by Anne Campbell-Washington. There is no indication that Mr. Purnell ever made any effort to interview Ms. Campbell-Washington or prior members of the MYOC to determine what type of recommendations the MYOC made from 2005-2008.

Mr. Baker claimed that the City Council and its committees have “not always followed” MYOC recommendations. The only time that I can recall this occurring is that the MYOC recommended rejecting Mayor Dellums $7.7 million “Augmented Recruitment Program,“ which was the catalyst for my lawsuit. The City Council did reject this recommendation. There is no indication Mr. Purnell asked Mr. Baker for any specific examples of situations where the MYOC’s recommendations were rejected.

Notably, Mr. Purnell never interviewed me regarding my knowledge of the activities of the MYOC, and when they make recommendations, and whether they are ever rejected by the City Council. His failure to even speak to me regarding this matter indicates bias and/or lack of a thorough investigation.

I believe that Mr. Baker’s information may be untrue or biased. As the administrator in charge of Measure Y and responsible for overseeing the functioning the MYOC, it should have been Mr. Baker’s responsibility to ensure that they committee members were complying with conflict of interest requirements, if those requirements applied. Needless to say, Mr. Baker has a vested interest in claiming that they don’t apply, since it would have been at least partially his fault for never looking into this to begin with. Moreover, Mr. Baker’s past history of failing to properly administer Measure Y is not mentioned. Mr. Baker oversaw Measure Y during the period of time that I was actively litigating against the City. I took Mr. Baker’s deposition and found him to be defensive, dishonest and not competent. He claimed that audits of Measure Y had been performed. He was never able to produce a single audit, and the Superior Court expressly found that no audits were ever conducted. Any statements he may have made regarding what type of the decisions members of the MYOC make should not have been taken at face value.

Mr. Purnell also interviewed Mr. Morodomi, the attorney who supervised the Measure Y litigation that the City lost. He too has a vested interest in trying to convince the PEC that the MYOC should never have been required to comply with the Form 700 filing requirements. Notably, since the filing of my complaint, Mr. Morodomi has recommended that the MYOC be included in the list of committees required to file Form, 700s. When asked why, he said it was because of its “ongoing debate and discussion of Measure Y issues.” This explanation is incoherent and incomprehensible. The likely reason he recommended inclusion was because I told him it appeared to be the only committee in the entire City that was not required to comply with the requirements, and that this made no sense at all.

There is no indication the Mr. Purnell conducted any real investigation into whether the MYOC has decision making authority and the extent to which its recommendations are accepted by the City Council. Relevant questions would include: (1) what does the MYOC actually do at its meetings? (2) does it ever make recommendations? (3) if, so, on what types of things; (4) how often? (5) has the City ever rejected a recommendation by the MYOC? (6) when? About what? Why? (7) does the MYOC receive information regarding agencies requesting MY funding? (8) does the MYOC make recommendations on which agencies receive MY funding? How much funding they receive? (9) if the MYOC does not make recommendations on these issues, who does? (10) Does the City Council ever reject or revise these recommendations? (11) Does the MYOC ever make any recommendations with respect to police functions? (12) Does the MYOC ever make any recommendations regarding audits or other items specified within its jurisdiction in the MY legislation? (13) Has the City Council ever rejected or revised those recommendations?

Because Mr. Purnell failed to conduct an adequate investigation into the factors deemed relevant by the FPPC, his recommendation of dismissal should be rejected, and the matter should be referred back for further investigation.

C. The Opinion Fails To Analyze Potential Conflicts of Interest Under Government Code Section 1090

In my complaint, I raised the issue that I suspected several members of the MYOC were employed by organizations that receive MY funding, creating a potential conflict of interest. California has two sets of conflict of interest provisions: the Political Reform Act, and Government Code Section 1090. Section 1090 creates the following, very broad prohibition:

Members of the Legislature, state, county, district, judicial district and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members. (Emphasis added.)

Section 1090’s prohibitions apply to a much broader range of activities than merely the vote to enter into a contract or agreement. All actions involved in the making of a contract such as “negotiations, discussions, reasoning, planning, and the give and take which goes beforehand in the making of the decision to commit oneself must all be deemed to be a part of the making of an agreement in the broad sense.” (Stigall v. City of Taft (1962) 58 Cal.2d 565, 570-571 [25 Cal.Rptr. 441].) If there is a conflict under 1090, mere abstention is not sufficient; rather, the member/official is precluded from actually serving on the board/commission.

It is true that California law does not extend the proscription against making a contract by a board with a financially interested member to the situation of an advisory committee with a financially interested member. However, the law does require that the member abstain and not participate in the giving of advice. (Cal. Atty. Gen., Indexed Letter No. IL 72-143 (Aug. 16, 1992); see Conflicts of Interest (Cal. Dept. of Justice, pamp. 1998), p. 48; Cal. Ops. Atty. Gen. 99-304 (1999).

The opinion fails to analyze potential conflicts of interest under 1090. Therefore, I request that the matter be referred back to the Executive Director for further analysis on this issue.

D. The Conclusion That Members Of the MYOC Do Not Have a Conflict of Interest Because They Were Not Covered By The Conflict of Interest Code Is Premature Because No Thorough Investigation Has Been Conducted

When I first filed my complaint, I advised Mr. Purnell that I had information that two members of the MYOC worked for public agencies that received MY funding, and another worked for “Attitudinal Healing,” which I also believed had received MY funding. While his opinion addresses the public employees, it does not address the other person. Moreover, I advised Mr. Purnell that since members of the MYOC had never submitted Form 700s, I was not in a good position to determine whether other members may have conflicts, because I did not know where they all worked. I believe that the matter should be referred back to Mr. Purnell to determine the employment of the other members of the MYOC to determine if a conflict of interest exists or existed.

The argument that the MYOC was not covered by the Conflict of Interest Code at the time my complaint was submitted is circular and without merit. Without having conducted an adequate investigation into whether the MYOC should have been covered, Mr. Purnell cannot conclude that its exclusion is an excuse for members having a possible conflict. Only after conducting a thorough investigation on whether the MYOC was truly only “advisory” can such a conclusion be drawn.

III. Conclusion

For the reasons stated herein, I request that the recommendation by Mr. Purnell be rejected, and that the matter be referred back to him for further investigation.

Oakland's Public Ethics Commission Is a Kangaroo Court

2010-02-18T21:35:00.000-08:00

The Oakland Public Ethics Committee website proudly proclaims: “We help ensure that our City government works the way it’s supposed to. The Commission works to promote confidence in our government by making sure you are treated fairly at all times, with honesty and integrity… “ The PEC advertises that it “sets the standard, by example, for ethical conduct.”

I just found out that the way Oakland’s government is supposed to work is to allow politicians to push regular citizens to the side when they think they have a more important issue. And I guess the PEC’s definition of being treated “fairly” is that regular citizens to stand back while more important people, who pay the PEC Executive Director’s salary, get served first. And I am also to presume that “ethical conduct,“ under the PEC’s definition, means ignoring their own rules whenever a politician tells them that’s what they need to do. It’s justice, Oakland style.

These points were brought home over the past couple of days, when I found out that my complaint, which has been pending before the PEC since early September, 2009, and was finally scheduled to be heard on March 1, got shoved to the back of the line because Jean Quan insisted that her complaint get priority. Now, the PEC has very strict rules about processing of complaints and setting hearing dates. But apparently those rules mean nothing when your name is Jean Quan. Then you get to go straight to the front of the line.

My complaint relates to over a dozen separate violations of the California Public Records Act and Oakland’s Sunshine Ordinance. I first wrote about it here. http://defendingmeasurey.blogspot.com/2009/09/oaklands-new-eco-policy-keeping.html
I filed the initial complaint in early September, and since then, the City continued to violate the law on practically every request I submitted. I tried to mediate the dispute, and was successful in finally getting most the records I wanted, but the City completely refused to address the fact that it was not responding in a timely manner, and was failing to adhere to other technical requirements of the law. So I asked that my complaint go forward to hearing.

The PEC has very specific rules that would appear to have been designed to prevent precisely the type of abuse being carried out here. Specifically, one rule provides: “A reporting log shall be maintained by the Commission's staff that chronologically records each complaint…” Another provides: “The Executive Director shall process, review and make recommendations on all complaints expeditiously, and in any event no more than thirty (30) business days of receipt, unless additional time not to exceed fifteen (15) business days is provided by the Chairperson of the Commission ("Chair"). No further extensions shall be permitted except upon approval of the Commission as a whole.”

Recently, City Attorney John Russo proposed doubling the campaign limits in the mayoral election, in light of “instant runoff voting” that will be used in the fall. At a Rules Committee meeting held on February 4, Quan objected to the proposal (apparently fearing it will hurt her campaign more than Perata’s) and asked that the matter be referred to the PEC on an expedited basis. A bunch of other politicos agreed, and voila, PEC Executive Director Dan Purnell agreed to schedule a “special” meeting to consider the matter on March 4. So then I get an email from Mr. Purnell, telling me that because he is so busy, specifically referencing the Quan complaint, that the PEC can’t hear my complaint on March 1. I wrote several indignant emails to Mr. Purnell citing him to the rules addressing timelines, and asked him to point me to the rule that said a politician can jump to the head of the line. Needless to say, he couldn’t cite to any.

Now, I’m not saying that the PEC doesn’t have the authority to schedule a special meeting when the need arises. What I’m saying is that the PEC can’t violate its own timelines for regular citizen complaints, to prioritize the concerns of politicians. That’s not ethical, that’s not fair, and that’s not consistent with the goals of the PEC. And rest assured, I’ll be filing another complaint about that.

But I won’t count on it getting heard anytime soon, and I won’t count on it being considered fairly. After all, I just found out that Mr. Purnell’s recommendation is to dismiss my other complaint, which addresses the fact that members of the Measure Y Oversight Committee NEVER have filed conflict of interest disclosures, and several of them have apparent conflicts of interest. I don’t have time to get into all of that now, but I will in a later post. You can check out Mr. Purnell’s legal opinion here.
http://www.oaklandnet.com/government/public_ethics/March-01-2010/ITEME-4.pdf

I'm beginning to appreciate how the people in Myanmar must feel.

The Mysterious Case of The Missing Salary Surveys

2010-02-17T20:13:00.000-08:00

Things just keep getting curiouser and curiouser. Suddenly, two Oakland salary surveys have gone missing! It's time for Miss Marple and Nancy Drew to put their heads together and solve this one!

Last week, I wrote a post about how inflated Oakland salaries are. http://defendingmeasurey.blogspot.com/2010/02/why-is-oakland-so-broke-heres-clue.html and cited to a 2008 “comparability Wage and Benefit” analysis. An anonymous poster at ABO wrote that the City Administrator’s office was contemplating removing it, because it was “inaccurate.” Lo and behold, within a week of my post, it was gone. Fortunately, you can still find it here. http://www.abetteroakland.com/documents/salarysurvey.pdf

Now, what kind of knucklehead City officials would commission a detailed salary survey of 70 positions that is “inaccurate?” And since when did “inaccuracy” bother City officials so much that they had to take something off the internet? My favorite “inaccurate” website is the “FAQs” page for Measure Y, sponsored by the City of Oakland, which you can find here. http://measurey.org/index.php?page=measure-y-faq

It states at the bottom of the page: “…two specific guarantees were put in the measure: 1) that the City will maintain a baseline of 739 police officers in addition to the 63 new officers….” Oh really? Guarantee, huh? Then why is the City still collecting the tax when we’re way below 802? And during the early stages of my lawsuit, the City claimed that this wasn’t what Measure Y said at all. So that means it’s “inaccurate.” So, Dan, when are you going to correct that “inaccuracy?”

The next missing salary survey is even more of an embarrassment for the City. As noted in my post last week, in 2002/03 the City signed a contract “not to exceed $100,000” to conduct a salary survey of top management positions. I tried to find a version of the survey on line, with no luck. So I did a public records request to the City to get a copy and to find out when it went to the City Council, as well as find out how much the salary survey actually cost us taxpayers. Get this - the City can’t “find” the survey. Oh, and then I find out that the survey cost $113,000! Can you frickin believe that? $113,000 to conduct a salary survey of only 200 positions? That is just shocking! And to add insult to injury, this exceeded the maximum amount by $13,000. Oh, and it gets better. There’s no indication that the salary survey was EVER presented to the Council. To date, the City has been unable to locate any documents indicating it was ever given to them. Gee, I wonder why? Maybe because the people responsible for presenting it are the same overpaid upper management that the survey was supposed to study?

You want to know why Oakland is broke? They agree to pay $100,000 for something that should have cost a tenth of that. They don’t bother to notice that they overpay by $13,000, in violation of the contract. They pay $113,000 for a survey that either was never done, that was lost, and/or that was never even presented to the Council! This is just the height of ineptitude! And they want us to pay more taxes to cover these types of mistakes? Get real.

Why Is Oakland So Broke? Here’s A Clue

2010-02-04T21:35:00.000-08:00

Don’t you just love it when our City leaders preface their statements regarding the budget by saying, “like many cities these days….” Well, let me tell you ladies and gentlemen, Oakland isn’t like many cities. It is in a class by itself. How many other cities have recently used the word “bankruptcy” in the context of discussing options? How many other cities have a parcel tax to pay for the most basic service (police!) a city can provide? We stand alone. As the budget gurus will readily admit, around 75% of Oakland’s general fund is eaten up by public employee salaries. How many other cities have salaries as obscenely high as Oakland? Well, I decided to do some basic research to try to find out.

Fellow bloggers Vsmoothe at Abetteroakland.com and DTO510 have done a lot of the research for me. You can check out their posts at http://www.abetteroakland.com/oakland-employment-per-capita-1995-and-2005/2008-07-24

and
http://futureoakland.wordpress.com/2008/08/11/statistical-surprise-civil-servants-significantly-overpaid/

According to an article in the Oakland Tribune from June 14, 2003, at around that time, the Council froze the salaries of approximately 200 non-union employees (a tiny fraction of Oakland’s total work force) after raises given to then City Manager Robert Bobb and City Attorney John Russo made them the highest paid employees in their respective positions in the STATE.
http://findarticles.com/p/articles/mi_qn4176/is_20030614/ai_n14547518/

The article stated that other high paid administrators were “not far behind.” The City paid a consultant $100,000 to have a salary survey conducted to compare Oakland salaries with those of other cities and the private sector. I can’t find a copy of that survey, but I’ll do a public records request and see what that turns up. (The report hadn’t been released at the time the Tribune article was published). At the time, then Councilmember Danny Wan made the (outrageous) request that before voting to unfreeze salaries, he wanted to ensure that any raises were (gasp!) performance based (!) I couldn’t find any evidence that the Trib followed up on this story, but in any event, that’s just some background history.

What’s more current and more enlightening to look at is a document you can hopefully find here
http://www.oaklandnet.com/government/fwawebsite/personnel/PDF/SalarySurvey-CPIChart.pdf

This is a 2008 “comparability Wage and Benefit” analysis which, according to an anonymous poster on ABetterOakland.com, the City is now claiming is “inaccurate” and could be removed from the internet. We shall see. The survey compared Oakland salaries to 13 other large Bay Area cities and counties. While it did not include police officers, it did compare 70 different civil service positions, ranging from a lowly “Cook III” (paid 19.44% more than the mean of neighboring cities) to a “Deputy City Attorney II” (paid 9.43% more than the mean). Of the 70 positions analyzed, a full 63(90%!) showed Oakland workers were overpaid compared to their counterparts elsewhere. Some of the numbers are truly shocking. A “Construction Inspection Supervisor” gets paid 34.52% more than the mean; a “recycling supervisor” gets 28.56% more. The vast majority are compensated at between 10-20% more than neighboring cities. The document does not specify how the survey was conducted, or what data was analyzed. For example, it doesn’t specify whether health benefits or retirement benefits were considered. It doesn’t specify whether it considered the length of the workday or workweek, or other restrictions unions may have negotiated to keep their members from working any more than they actually have to (: )) My guess is that if those factors were considered, the discrepancies in Oakland’s overly generous compensation would become even more apparent.

Another great chart to check out can be found here:

www.census.gov/compendia/statab/2008/tables/08s0453.pdf

This chart analyzes City staffing and payroll and employment numbers for 1995 and 2005. Let’s compare Oakland’s numbers to our sister city, Long Beach (which is somewhat bigger, but still relevant for comparison purposes). From 1995 to 2005, Oakland’s “full time equivalent” personnel numbers jumped from 4700 to 5500. That’s a much more dramatic increase than Long Beach, that went from 5400 to 5600. On a per 10,000 resident basis, Oakland’s staffing was 138, compared to Long Beach’s conservative 119. Moreover, during that same time period, Long Beach cut its per capita staffing per 10,000 from 125 to 119; Oakland increased its from 128 to 138! From 1995 to 2005, Oakland’s total payroll costs skyrocketed, more than doubling! Long Beach only had a modest increase. And as for average monthly salaries, Oakland’s were among the highest on the list back in 1995, and by 2005, were the highest on the list, by a long shot at $7397. During that 10 year period, Oakland salaries had gone up an average of nearly 70%!

Another fun one is here:

www.census.gov/compendia/statab/2010/tables/10s0455.xls

According to Pauline, who already analyzed the data in her recent post on ABO, this chart shows average monthly earnings for the 85 largest cities in the U.S. for 2000, 2006 and 2007. In 2000 and 2006, Oakland's average monthly earnings were the highest of all 85 cities. In 2007 Oakland was the seventh highest. Pauline also notes that Oakland has 163 retired people with pensions over $100,000 ranging from $100,104 to $169,920. See
http://www.californiapensionreform.com
San Francisco has 40 people, San Jose has 0, Sacramento 87, and Los Angeles has 35.

Many will say that Oakland’s salary numbers are inflated by police and fire salaries, which may well be true. So to find out if Oakland police are overpaid, you can check out the chart at

http://www.dpa.ca.gov/salaries/surveys/2008/public-safety/appendix/statewide/patrol-officer.htm

This salary survey is very well put together because it compares apples to apples (just police officers, not administration) and includes all compensation, including salary ranges (minimum and maximum), health benefits, retirement, longevity pay etc. It does NOT take into consideration how much overtime they get. It is very easy to read, and makes it clear that again, Oakland is far and away the most generous in terms of both salary and total compensation. Total monthly compensation for Oakland is $9775. No other jurisdiction even comes CLOSE, except for the County of Alameda, which is at 9552. Again, comparing Oakland to Long Beach, we outspent Long Beach by a full $2221 per month, per officer. Are you starting not to wonder anymore why we’re BROKE?

More great survey data can be found at
http://www.dpa.ca.gov/tcs2006/exhibit-h.htm
This compares various public entities’ retiree health coverage. Of course, most employers don’t provide retiree health coverage. Mine sure doesn’t. And according to the chart, neither does Long Beach. But Oakland provides monthly premiums of $64.60, plus up to $425.42 a month in reimbursements, for a total cost of nearly $500 per month, per employee. They’re entitled to the same benefits for their spouse, making the cost closer to $1000 a month for married employees! Interestingly, however, it appears that many public sector employees and their families get similar benefits, so there’s probably not a lot of room to negotiate with the unions on this one.

Yet another chart worth checking out is at

www.dpa.ca.gov/tcs2006/exhibit-e.htm

Here you can compare Oakland’s cost of living increases with those of other public entities around the state. The chart shows that in 2006, Oakland public employees last received a 3% COLA in July, 2005, and were due to receive a 4% increase in July, 2006. None of the other public entities disclosed such generous COLA increases. By the way, unionized workers generally get paid based on a salary schedule that provides for automatic pay increases every year, regardless of the actual cost of living, and regardless of performance. So just because union workers don’t get COLA doesn’t mean they didn’t get a raise. They usually did.

Here’s a chart that compares public sector leave practices.
www.dpa.ca.gov/tcs2006/exhibit-j.htm
Oakland’s vacation leaves appear comparable to that of other cities, as does its sick leave, and time off for holidays, so I don’t see room for negotiation in this area…

If you want to check out individual salaries by name or title, Bay Area News Group does an annual survey. The 2009 version can be found here.

www.contracostatimes.com/public-employee-salaries?appSession=658221439527912&RecordID=&PageID=2&PrevPageID=&cpipage=1&CPISortType=&CPIorderBy=

You’ll see that police officers can clear well over $250,000 a year, including overtime. Hey, I wouldn’t necessary want to work overtime on the mean streets of Oakland, but these numbers are just obscene!

So, if any of you reading this want to question my conclusion that Oakland civil servants are overpaid, be my guest, but please supply the link that supports your position, and I’ll be happy to take a look at it. In the meantime, I’ll consider my opinion that Oakland is paying way too much in salaries and benefits as an informed one, and will continue to lobby our officials to commit to cracking down on these problems before coming to the taxpayers for more money. Are you willing to pay more taxes so that a cook can get 20% more than they could in Berkeley? I thought not.

What’s Mine is Mine and What’s Yours is Negotiable

2010-01-25T19:34:00.000-08:00

So we had a formal, Court of Appeal ordered “mediation” last Friday. With the way things are looking, we have a long, slow road ahead of us, and the road appears to be leading to more litigation. Now, as a litigator, I like nothing better than to squash my opponent and bask in the glow of triumph. But this isn’t an ordinary lawsuit. It’s kind of like suing your mom. I mean, you kind of count on your mom to represent your best interests and do what’s best for you, and be smarter and wiser, and lead you down the right path. So when Mom lets you down and turns out to be a crack head and cleans out your piggy bank, and you have to sue her to get your money back, and you win, well, the victory is kind of bittersweet. Actually, it’s mostly kind of sad. The kind of sad case you see on “Judge Judy.” And even sadder when they interview the mom after Judge Judy has rendered her verdict, and Mom still doesn’t get what a morally bankrupt screw up she is. And then she doesn’t even pay you back, because she’s a crack head and doesn’t have any money anyway! Having to sue your mom kind of sucks.

Litigation is a very long, slow, and expensive process. A negotiated settlement, particularly in a case like this, is a much better option for everybody. Seriously, when I started this whole thing, I expected to be dealing with reasonable, rational people, who would quickly realize that I was a concerned citizen, legally savvy, and that the law was on my side. I thought we’d be able to talk. No such luck. The City never gave me the time of day. Even after I won, it was me who asked to meet with them, not the other way around. And it’s been like pulling teeth ever since. All I want them to do is honor the commitments made under Measure Y: 10 years of police staffing at 802, with the 63 Measure Y officers, in exchange for 10 years of Measure Y taxes. Who can look me in the eye and tell me that’s unreasonable, when that’s exactly what Measure Y promised us? Particularly when our new police chief is decrying the current understaffing?

Recently, I’ve actually developed some creative proposals to help the City make the promises of Measure Y a reality. I’ve spent hours of my time talking to various City officials, pouring over budget documents, racking my brain for ways to resolve this case. But I am sad to report that the efforts appear to be entirely one-sided. The City does not seem interested. I guess Mom just hasn’t hit bottom yet. And she’s going to go for my piggy bank again. Yours too.

The Spin Doctor Is IN - And On Your Dime

2010-01-12T23:07:00.000-08:00

A couple of months ago, local attorney Gary Sirbu had a “My Word” submission in the Tribune regarding lack of oversight and other abuses on the Measure Y Oversight Committee. For the record, at the time, I didn’t know Mr. Sirbu and had never spoken to him. But I’m always thrilled that there are others out there in the community who get as hot and bothered about Measure Y abuses as I do. Anyway, since then, City officials put the PR machinery into gear to try to refute his claims, and on December 4, 2009, Andrea Youngdahl, Director of the Department of Human Services, had her rebuttal published.

I subsequently sent out two public records requests to find out how and why her submission was composed. Two months and much nagging later (!!) I finally got the documents I sought, and confirmed that Ms. Youngdahl's efforts were with City approval and at City direction. Needless to say, also on City time and at City expense. The headline was “City of Oakland Takes Measure Y Oversight Very Seriously.” Well, if the current state of affairs is evidence of them taking oversight “seriously,” I shudder to think what not taking it seriously might look like.

Mr. Sirbu pointed out that there is a conflict of interest in the selection of the supposedly neutral performance evaluator. Ms. Youngdahl, in her piece, claimed that the City Administrator’s office “uses a panel of outside experts, not city staff, to interview and select the evaluator.” Well, the records I got back do not confirm this claim. They indicate that three sort of consultants appear to have participated, once, in 2008, in the selection of the evaluation company. But there is no documentation indicating that they ranked or selected the evaluator. In fact, Jeff Baker’s own job description clearly states that this is his responsibility.

By far Ms. Youngdahl’s most outrageous, and spurious claim, is that “The Oakland Police Department credits the violence prevention programs funded by Measure Y for the significant crime reduction this year….” I asked for all documents supporting this claim, and who in OPD is actually doling out the credit in this manner. Guess what they gave me as proof? A couple of newspaper clippings quoting police officers who said that the programs have some benefit. Give me a break! (Notably, some of the clippings also cited new police tactics, and increased staffing, but not surprisingly, Ms. Youngdahl doesn’t cite any of that. Not her department.)

Ms. Youngdahl goes on to claim, in her newspaper submission, that the “City Auditor’s thorough audit of all Measure Y violence prevention programs did not find one single instance of fraud or misuse of funds.” On the contrary, Ms. Ruby’s report specifically faulted Measure Y violence prevention programs for failing to utilize RFP and/or competitive bidding processes to select “grantees” (which aren’t even permitted under the municipal code) and for providing services to non-Oakland residents, among other failings.

Mr. Sirbu pointed out in his piece that Mr. Baker, who is funded entirely out of Measure Y and should devote 100% of his time to Measure Y duties, has actually been pulled off his duties to attend to other things, such as staffing the Community Policing Advisory Board meetings. Ms. Youngdahl defends this practice by claiming that these are “violence-prevention activities,” so who cares if they aren’t exclusively related to Measure Y? It is exactly this sort of cavalier attitude that got the City sued the first time. I’m sorry to see their attitude hasn’t changed.

Most embarrassing of all is Ms. Youngdahl’s defense of Nancy Nadel’s appointment of a 16-year-old high school student to the Measure Y Oversight Committee. She gushes that his appointment is to be “applauded and encouraged, not minimized.” Is she willing to have her 16-year-old son (or daughter, niece, nephew, babysitter, whatever) do her financial planning, balance her checkbook, and figure out her tax return? I doubt it. And her budget isn’t likely to be a fraction as large or complicated as Measure Y. If a kid can’t vote, drink, drive, or get prescription medication, they sure as hell shouldn’t be in charge of a $20 million budget. Not as long as I have anything to say about it.

How Do I Not Love The Idea of a New Parcel Tax? Let Me Count The Ways

2009-12-30T21:45:00.000-08:00

So while I was on vacation I was (unfortunately) following the news that the City is still actually considering the possibility of yet another parcel tax. To say that I vehemently oppose the idea is, of course, a dramatic understatement. As I mentioned in my last post, putting something on the ballot that would restructure Measure Y in such a way as to allocate additional funds to police, and correct the previous abuses, to help settle my previous suit, is something I could support. Just so long as taxpayers wouldn’t have to pay another dime! Currently, Measure Y requires that 40% of the funds generated be spent on “violence prevention” programs. That’s over $8 million a year, that, with a restructuring of Measure Y (which would require an election and a 2/3 approval) could be redirected to police services and toward funding implementation of the actual terms of Measure Y, i.e. 10 years of full staffing at the promised authorized strength of 803, to settle the lawsuit. Now, I’m not saying those violence prevention programs are a total waste. Maybe they’re not. But I’m skeptical. More importantly, our priority should be on the police. People are being killed, raped, and robbed on the streets in alarming numbers. The people committing these crimes need to be arrested and brought to justice.

Preventing the young children from becoming violent criminals may or may not be possible with violence prevention programs, but that is just a luxury we cannot afford right now. Moreover, that job belongs primarily with parents, secondarily with the schools. It really is not a “core function” of the City to be trying to stop kids from joining gangs and dealing drugs with these sorts of programs. Moreover, the programs currently being funded by Measure Y already existed before Measure Y, and will continue to be funded. Kids First and its legacy already guarantee the same organizations and similar organizations around $10 million annually. So it’s not like those programs are going away. But of course, another option would be to do away with both the $8 million of Measure Y funding, and the $10 million of Kids First funding, and that would give the City an extra $18 million annually that it could redirect toward police services. So again, my point is, no need for another parcel tax. Other reasons are outlined below:

1. The Failure of Measure Y

Measure Y costs property owners over $90.00 a year currently. We were promised an additional 63 officers, one for each beat, plus a few more, and minimum staffing of 803 for the 10 years of Measure Y. We paid our taxes; the City did not deliver. Need I say more? Okay, I’ll say more. Not only did they not staff the positions they promised, they totally misused Measure Y funds so badly that Judge Roesch called the City’s violations “flagrant” and their arguments justifying the misuse of funds “sophistry.” And the City promised “accountability” in the form of annual audits and an “oversight committee.” The audits never happened. The “oversight committee” is a joke. If that committee had been doing their job, no lawsuit would have ever been necessary. So how can the City justify yet another parcel tax? Would they promise us an extra 100 officers for an extra $20 a year? I doubt it. Even if they did, they’ve totally lost their credibility, so why would we believe them?

2. The Examples of Waste In This City Are An Embarrassment

So some City officials, and maybe a few other citizens who are either very ignorant or too rich to care, want us all to pay yet more money in taxes while Mayor Dellums apparently does virtually nothing, gets paid $180,000 a year, and gets chauffeured to work (when he chooses to come) in a limo. A 27-year old convicted felon meter repairman who is related to the former City Administrator gets paid over $56,000 a year, plus benefits, and gets to keep his job. City Councilmembers, the Mayor, and others go on expensive junkets to faraway cities and countries. http://articles.sfgate.com/2009-12-07/bay-area/17183111_1_stimulus-money-ron-dellums-oakland-mayor
The Grand Jury previously issued a report condemning misuse of City issued credit cards. Now, Jean Quan has previously said that these examples of waste are really just a drop in the bucket, and even if they were eliminated entirely, they would not solve Oakland’s budget crisis. While this may be true, it’s the principle of the thing that just sticks in my craw. I refuse to pay more taxes when the Mayor gets a private chauffeur. Call me irrational.

3. The City Needs To Learn to Live Within Its Means

When private citizens are short on cash, they are expected to tighten their belts. Cancel the cable TV. Stop eating out. Switch to “stay-cations.” Buy used cars. Cut the credit cards in half. That sort of thing. But the City? Why cut costs when you can just threaten and extort more money out of the citizenry? Heck, even Dellums appears to be getting a pass on the fact that he owes $240,000 in back taxes to the IRS and can’t manage to live within a budget. Where is the condemnation from the City Council on this outrage? Talk about leading by example. This guy makes around $180,000 a year, and gets a nice pension from the federal government on top of that, and he can’t manage to stay out of this kind of debt? And what business does he have living in that mansion on Skyline that is obscenely large for two people? Sorry, but my parents taught me if you can’t afford it, don’t buy it. The logic seems obvious. How is it lost on our government officials?

4. Learn From the Private Sector: Slash salaries, benefits

City officials claim that despite all our whining about not devoting sufficient resources for public safety, public safety eats up most of the discretionary budget. But isn’t there room for cost cutting? According to the OPD website, entry level salary is $71,841 to $90,549. Not bad for a job that doesn’t require a college degree. Not to mention opportunities for gobs of overtime, and listen to this claim about benefits: “The City of Oakland is ranked #1 for employer contributions among the 10 largest cities in California. We currently contribute $13,998 per employee as compared to the average $8,812 of other cities of similar size.” Is that really necessary? In this economy, do we need to be so generous? Plus up to 32 days of vacation and holidays? Plus a 9% PERS contribution? Hopefully you’ve all seen the newspaper charts showing that some of these guys are clearing over $200,000 a year, with overtime. Then they retire at 50, get a job somewhere else, and buy an island in Fiji somewhere at 60. Hey, I know being a cop in Oakland is a tough job and all, but are they overcompensated? If so, slash salaries, slash benefits, and make the organization more efficient. But don’t cut the police force. It isn’t allowed under Measure Y, and it isn’t allowed under the COPS grant. Okay, it is allowed, but it would cost around $35 million a year or something like that. Stupid idea. We need more cops, not less. As for the rest of Oakland salaries, a similar analysis needs to be done. Salaries, number of jobs, efficiency, all that sort of stuff. Until and unless that has been done, how dare you ask us to pay more?

Addendum: Since I originally posted this, I found this great summary at Future Oakland on civil servant salaries here.

http://futureoaklandblog.com/2008/08/statistical-surprise-civil-servants-significantly-overpaid/

5. We already Pay Taxes, Damn It!

Most cities manage to pay for their police force without the need for special parcel taxes. Oakland taxpayers are already paying extra taxes through the nose. See http://www.eastbayconservative.com/?s=Ad+valorem; see also http://www.eastbayconservative.com/2008/10/31/oakland-where-property-taxes-soar-and-the-city/

With all these taxes, shouldn’t the City have enough money to be able to pay for basic services, like police and fire? If most other cities can manage, why can’t Oakland? (According to Alameda County's property tax website, Berkeley, Hayward, San Leandro, Castro Valley, San Lorenzo, and Albany - NONE of these cities have special assessments for police services). Unless you have a good explanation for that one, don’t ask me for more money.

6. The Parcel Tax Will Fail

In order for a parcel tax to pass, 2/3 of the voters must approve it. Last year, the Council put Measure NN on the ballot, which ostensibly was to increase funding and the number of officers. But the language was terrible, and actually did not guarantee additional staffing at all. Moreover, it was really expensive. It got a staggering 55% of the vote, which amazed and disappointed me, but that was still over 11% short of what was needed. So the bottom line was, it wasn't even close. Today, the economy is worse, and the City has suffered the embarrassment of a private citizen winning what amounts to a $15 million lawsuit against it, based on the blatant violations of Measure Y. In addition, lots of people have lost their jobs, endured pay cuts, loss of benefits, or their house could be on the brink of foreclosure. They are already paying way more than neighboring cities in taxes (for generally much poorer services). How much support for a new parcel tax could there possibly be?

A couple days ago, over at www.abetteroakland.com, Oakland lawyer Bruce Nye publicly stated that he supports a new parcel tax. Apparently he and one other lonely soul in this town would support it. The rest of the comments were overwhelmingly against it. Now, I'm not sure that's a really scientific sample (ABO commenters tend to be more informed than your average Oakland Joe) but I'm pretty sure that if a formal poll were conducted (and not a "push poll") there wouldn't even be close to 66% support. So the City shouldn't waste its time on this idea anyway.

7. A Special Election In June Could Cost $800,000

According to the East Bay Express (http://www.eastbayexpress.com/92510/archives/2009/12/04/instant-runoff-voting-coming-to-oakland) Oakland is planning on having only one election in 2010, in November. Having a special election in June, which is what I have heard being proposed, would according to this article cost $800,000. That's just throwing good money after bad.

8. Parcel Taxes Are Regressive

As has been pointed out many times already, parcel taxes are unfair. Not to me, mind you. I make a comfortable living and really, I was easily sold on the $88.00 price tag of Measure Y, seeing as I would be getting my own neighborhood police officer (or so I was told). But a house assessed at $250,000 would have to pay the same tax as one assessed at $2,500,000. That's called a regressive tax. Lots of people are opposed to parcel taxes on this basis alone.

I’m sure I’ll have some more reasons to add later, but I’m tired now. Happy New Year, and let’s hope for a better, safer, and more fiscally responsible 2010.

Getting From Measure Y to Measure Z - Reduce Accountability, Increase Taxes. Who Wouldn’t Vote For That?

2009-12-16T18:49:00.000-08:00

Thursday morning at 10:00 a.m., a time most responsible working adults will not be able to attend, our illustrious City Council is meeting once again to discuss how to fix the budget and fill the $18 million hole. You can read the brilliant new proposals here. http://clerkwebsvr1.oaklandnet.com/attachments/23790.pdf

Of particular note is the astute observation: “New ongoing revenues are the only way to cover the operating deficit on [sic] an ongoing way. We need to discuss the practicality of new ballot measures to bring in new revenue or to change how current measures are structured. These include (I) modifying Measure Y to remove the obligation to fund 739 officers with non-Measure Y funds; (ii) new parcel taxes….”

Are they kidding? Reduce accountability, and raise taxes? For those of you that have been following this issue, the City initially asserted that unless the police force was staffed a minimum of 739, Measure Y taxes could not be collected. You can read this spurious claim on the City’s own website (!!) here.

http://measurey.org/index.php?page=measure-y-faq

When sued initially by Charlie Pine, and then by me, the City claimed that all this language meant was that they had to “appropriate” money for the officers; they didn’t actually have to employ them. Yeah, right. In any event, now the City hasn’t even done that, which has resulted in the police force dropping like a rock, and me threatening a second lawsuit. So the City’s answer is to get rid of this pesky accountability language? I have one thing to say to you City officials - don’t even THINK about it!

We have brand a new police chief who seems very promising. He’s been going all over town giving speeches on how “broken” the police department is, and how his resources are just stretched too thin, and how the response times are totally unacceptable, and how public safety is an economic driver. And the City has the gall to propose that we REDUCE the police force? Are they INSANE?

As for any new parcel taxes - did they not hear the City Council say that now is not the time for such things? People are broke, out of work, and some on the brink of foreclosure. Like 66% of them would want to increase their taxes? Particularly in light of how the City failed so miserably to honor its promises under Measure Y? I think not.

As for long term solutions, increasing revenues is not the only answer. How about reducing costs? The myopic City officials always seem to assume that this means cutting services. How about improving services? How about making people work the same number of hours, for less pay or less benefits? (Like in the “real world.”) How about firing people when they’re incompetent? How about setting a tone that people who get paid a salary actually have to come to work and get stuff done? Are these such radical concepts?

I am willing to consider restructuring Measure Y, and would actively support such a proposal if it included some critical components. First, it would have to guarantee that we get 10 years of staffing at 803, for 10 years of taxes, at the same amount, like what we were promised under Measure Y. It would also have to guarantee actual staffing at 803, or pretty darn close, not just some illusory “budget” for officers. It would have to guarantee that we have an officer in each beat, like we were promised under Measure Y. As to what those officers would do, and other details, I’m willing to listen to suggestions from the Chief. And as to how the City could pay for this, I think there could be adequate funding by reprioritizing and giving the lion’s share of the $20 million to the police, and a lot less towards violence prevention. Those programs existed prior to Measure Y and will continue to exist without Measure Y funding.

I have a settlement conference scheduled for January 7, 2010, where I hope to be able to discuss my ideas with City officials in more detail. But if raising taxes and reducing accountability is more their bag, we’ve got a long, litigious road ahead.

Have Marching Band Experience and A Clear Conflict of Interest? Apply With the Measure Y Oversight Committee!

2009-11-18T19:55:00.000-08:00

Last week, Gary Sirbu’s “My Word” submission to the Oakland Tribune highlighted numerous problems with the Measure Y Oversight Committee, and noted that one of its members is, get this, a high school student. Yeah, that’s right, Nancy Nadel appointed a high school student to be her representative in charge of overseeing community policing and violence prevention programs with a $20 million annual budget. And the City Council approved it - unanimously!

Now, Michael E. Brown, the appointee, has an impressive resume - for a high school student. He’s taken welding and blacksmithing classes at The Crucible. Good for him. I’ve taken classes there too. He’s a “Youth Assistant” at “The Attitudinal Healing Connection.” Guess that gives him some good experience with the types of programs Measure Y works with. Oh, wait, isn’t that a program that gets Measure Y funds? Isn’t that some sort of conflict of interest? Hmmmm. He’s also in the Skyline High marching band. Go Titans! He’s got a GPA of “2.50-3.50.” Never heard of a flexible GPA, but it's been a while since I was in high school. In his submission letter to Ms. Nadel, he states that he wants to “set a good example” and “make a difference.” Very original. He goes on, “I believe in violence prevention, fire safety, etc.” Well, thank god for that!

I would have liked to meet the young lad at the meeting on Monday, but he wasn’t there. Maybe he was grounded. Or had too much homework.

Apparently, young Mr. Brown’s qualifications, or lack thereof, received some criticism at the time he was appointed (this past spring), but any concerns were shrugged off with assertions that it would be good to have a representative from the community served by Measure Y. Huh? Does this mean we should appoint a dog to the Animal Control Board? How about appointing a convicted felon to the Police Review Board? Better yet, a four-year-old to the “Kids First” Oversight Committee! Will the insanity never end?

Then there’s the conflict of interest issue. I did a Public Records Request for all Form 700s ever submitted by members of the Measure Y Oversight Committee. This form recently received attention because Mayor Dellums didn’t fill his out correctly - he failed to disclose payment for a trip to South Africa. Now he’s facing more public scrutiny and a significant fine. The forms are required annually for all public officials, who must disclose all sources of income, including gifts over $50.00, to ensure an absence of any conflict of interest. Guess what? No member of the MYOC has EVER submitted a Form 700. Go figure.

I’ve submitted a public ethics complaint regarding the matter. My first ethics complaint, which will be set for hearing in January, involved the City’s failure to provide adequate and timely responses to my previous requests, including failure to disclose email addresses for members of the MYOC. The City claimed it was justified in withholding the email addresses on the grounds that this was “private information.” The ultimate irony is that when I asked for a copy of Mr. Brown’s resume, it was promptly provided, with his email address, home address, home phone, and cell phone numbers all included! But I’ll keep that to myself….