Judge: City used Measure Y funds in violation of law

The final ruling on Marleen Sacks’s lawsuit against the City over Measure Y has been issued, and Judge Frank Roesch has agreed that it was not legal for the City to spend Measure Y funds on police recruitment efforts. I’ve been meaning to write about this for a while now, but just haven’t found the time to get to it. I’ll have a more thorough post about the case next week, but for now, I’m copying the press release issued by Sacks below:


On April 2, 2009, Alameda County Superior Court Judge Frank Roesch issued the proposed Statement of Decision in Marleen Sacks’ lawsuit against the City of Oakland regarding numerous violations of Measure Y, a special tax from 2004 that was supposed to provide 63 additional police officers. The decision essentially affirms the tentative ruling that was issued on February 9, 2009, holding that the $7.7 million Augmented Recruitment Program passed in March, 2008, was illegal, as was the use of any Measure Y money that was used for recruitment and training of officers not placed into Measure Y positions. Sacks estimates that this decision means that the City must repay the Measure Y fund approximately $15 million.

In addition, the decision found that the City had failed to conduct annual audits for every year since Measure Y was enacted, as required by law. The City is now compelled to go back and conduct those mandatory audits.

The Court also provided guidance on interpreting language of Measure Y that requires that “each community policing beat…have at least one neighborhood officer assigned solely to serve the resident of that beat to provide consistent contact and familiarity between residents and officers.” Sacks alleged that the City was routinely assigning officers outside of their assigned beats. The decision provides that “on occasion, a PSO might lend assistance to a fellow officer working outside his or her beat. It is the clear intent of Measure Y that the officers assigend to PSO beats be assigned solely to serve the residents within the geographic confines of the beat.” Sacks is hopeful that the City will now cease its practice of routinely assigning neighborhood beat officers outside of their beats.

Sacks filed her petition when, after four years, the City had still failed to fill all of the PSO positions promised by Measure Y, and when the City decided to use Measure Y as a slush fund to pay for recruiting and training expenses that should have been paid for out of the General Fund. She believed that City officials had committed a tremendous violation of the public trust in collecting $20 million a year under Measure Y, and then spending the money on projects that were clearly not authorized. Additional information regarding the lawsuit and why Sacks initiated litigation against the City can be found on her blog at defendingmeasurey.blogspot.com.

Overall, Sacks is pleased with the decision, and she hopes that it will serve as a warning to City officials not to violate the public trust in the future, and as a warning to taxpayers to vote against any of the new tax proposals being contemplated for a summer election.

The text of the main portions of the decision is outlined below:

PROPOSED STATEMENT OF DECISION GRANTING IN PART PETITION FOR WRIT OF MANDATE

The Petition of Marleen L. Sacks came on regularly for hearing on February 11, 2009, in Department 31 of this Court, the Honorable Frank Roesch presiding. Petitioner appeared in propria persona. Respondent City of Oakland appeared by counsel Kevin D. Siegel and Mark Morodomi.

The Court having considered the pleadings, arguments and admissible evidences submitted in support of and in opposition to the Petition, and good cause appearing, the Court issues this Proposed Statement of Decision GRANTING IN PART the Petition for Writ of Mandate. This Proposed Statement of Decision shall be the Statement of Decision unless, within the period prescribed in California Rules of Court, Rule 3.1590, either party specifies controverted issues or makes proposals not covered in the proposed decision, or files objections thereto.

The Petition for Writ of mandate and other causes of action are GRANTED IN PART as follows:

The Court rules as follows on the evidence submitted: The parties’ respective requests for judicial notice are GRANTED.

Measure Y calls for the revenue collected thereunder to be used for “hiring and maintaining” community policing officers (“PSOs”). (Measure Y, Part 1 §3(1).) It also permits up to $500,000 per year of Measure Y funds to be used for training and equipment, which it specifies as “training in community-policing techniques.” (Measure Y, Part 1 §3(1)(e).) Use of Measure Y funds to train new officers who will not be placed in Measure Y positions is not a permissible use of funds specifically Iimited to “hiring and maintaining” community policing officers, regardless of whether those trained will backfill patrol assignments in order to free up veterans for Measure Y positions. To the extent that the City has used Measure Y funds for training and academy expenses for new officers trained in those academies who were not placed into Measure Y positions, such a use was not permitted by Measure Y.

Likewise, the Court finds that the Augmented Recruitment Program of 2008, in which the City voted to use Measure Y money to fund 100% of new academies, is an impermissible use of Measure Y funds. It is conceded by the City that those academies were not training new Measure Y officers, and that newly-trained officers are not, as a matter of policy, placed in PSO positions immediately after graduation from the academy. (See Declaration of Deputy Chief David Kozicki, filed January 20, 2009, at T20-24.)

The City also failed to complete the annual audits required by Government Code §50075.1. The City offers, as substantial compliance with this requirement, the independent auditor’s reports for January 1, 2005 to June 30, 2005, and for the fiscal years ending June 30, 2006, and June 30, 2007, and staff reports to the Council regarding Measure Y. (See Declaration of Ace Tago, filed January 20, 2009, at Exh. A-C, and Declaration of Jeff Baker, filed January 20, 2009, at Exh. A.) The auditor’s reports state that they are “intended solely for the information and use of the City’s Mayor and City Council and the City’s management and [are] not intended to be and should not be used by anyone other than these specified parties.” (See Tago Dec., supra, at Exh. A, page 2.) These reports do not substantially comply with the requirement that the City’s chief financial officer “file a report with its governing body . . . at least once a year” stating the amount of funds collected and expended, and the status of any project required or authorized to be funded.” (Cal. Gov’t Code §50075.3.)

For each of these reasons, Petitioner is entitled to writ relief directing the City to restore to the Measure Y fund all monies that were used for hiring, training and recruiting officers who were not placed in Measure Y positions. Further, Petitioner is entitled to writ relief requiring the City to complete the annual reports as required by Gov’t Code §50075.1.

As to Petitioner’s contention that the City was required to have a certain number of officers in order to collect the tax, the Court has previously ruled that Measure Y requires that the City appropriate funds for such positions. The Court has not been persuaded that its earlier ruling is in error. Measure Y does not specifically require that all positions be filled in order to continue collecting the tax.

Likewise, there is no violation of a ministerial duty by virtue of the fact that Measure Y officers might not spend 100% of their time working within their beats. Measure Y says, in Part 1 Section 3, § 1(a) “each community policing beat shall have at least one neighborhood officer assigned solely to serve the residents of that beat to provide consistent contact and familiarity between residents and officers. The City has put forth evidence that a Measure Y officer has been assigned to each beat as of September 2008. (Kozicki Dec., supra, at x(11, 12, 14, and 34.) So long as that is their assignment, the City does not violate its ministerial duties created by Measure Y when, on occasion, a PSO might lend assistance to a fellow officer working outside his or her heat. It is the clear intent of Measure Y that the officers assigned to PSO beats be assigned solely to serve the residents within the geographic confines of the beat. However, Measure Y does not require that a PSO to remain within the geographic confines of the beat at all times, or proscribe the flexibility needed by the police department to, on occasion, call a PSO to assist elsewhere.

Petitioner’s request that the Court issue declaratory relief of the existence of a ministerial duty to maintain a police staff of 802 police officers inclusive of a base staff of 739 officers and 63 PSOs is DENIED. The text of Measure Y contains no such requirement. Arguments or analyses put forth at the time of the election cannot, by themselves, create such duties when those duties are not in the text of the measure approved. (See Associated Students of North Peralta Community College v. Board of Trustees (1979) 92 Cal.App.3d 672, 679-80.)

Petitioner has failed to exhaust her administrative remedies as to a tax refund for herself, and therefore such relief cannot be granted. Moreover, Petitioner cannot obtain refund relief for other taxpayers.

Petitioner’s request that the Court grant mandate, declaratory or injunctive relief to enforce a mandatory duty relating to Section 3(1)(c) is DENIED; that request was not raised in the First Amended Petition.

Petitioner is direct to submit a proposed form of judgment for execution by the Court, and a proposed form of writ, for issuance by the Clerk of the Court, directly to Department 31 no later than April 16, 2009.


I know posting has been kind of erratic lately, and I do apologize for that. Some recent changes to my schedule have left me with, not so much less time as differently structured time, and I’m still trying to adapt. So I appreciate your patience while I make the adjustment. Have a great weekend, folks.

Oh, and If you’re doing the first Friday thing, you should make a point of checking out some of the recently opened bars along Telegraph. Somar at 18th, the Den at the Fox Theater at 19th, and AVE at 21st. All are very cool, and both AVE and the Den have food. The Den’s menu is good for snacking – cheese plate, charcuterie plate, and so on. AVE has a more elaborate menu, and if you go, I particularly recommend the pineapple and mango salad, which I sampled last night and found delicious.

15 thoughts on “Judge: City used Measure Y funds in violation of law

  1. len raphael

    Did city attorney John Russo’s office write the original opinion giving Dellums and the Council cover for misusing Measure Y funds? if Russo is a future mayoral candidate, I want to see how he justified that misuse or whether it was just a lawyerly “on the one hand this, but on the other hand that” kind of cover letter which is his job to provide to his mayor.

    is there a link to that document? Dellums really has a lot more in common w our ex prez gbw. . must be the effects of absolute power.

    Was the City represented before this judge by inhouse or outside attorneys?

    -len raphael
    temescal

  2. Max Allstadt

    My impression is that the nature of Russo’s office is tricky. On one hand he’s elected to serve the people, and thus should represent the will of the electorate. On the other hand his role is to represent the City as an organization. Frankly I trust the guy, as many on this blog know, since I endorsed him for mayor in the middle of the most recent general election, when he’d just been re-elected to his current post.

    Still, I wouldn’t want to be in his shoes on some of the issues where his roles are in conflict with one another. Tricky.

  3. MarleenLee

    Russo’s job is to represent the City – that means the City Council and the Mayor. Don’t fool yourself. His job is not to represent the “electorate.” It is the City Council’s job to represent our interests, but we all know that is the exception rather than the rule. The City Attorney never really authorized the misuse of Measure Y funds initially- on the contrary, the City Council was told by an assistant City Attorney in open session that they could not use the money if it was going to be spent on non Measure Y officers. But then Chief Tucker openly lied and said all of the officers were going to go into Measure Y positions. The City Council should have known better (and in fact one or more openly stated they knew that this could not be the case) but they voted for it anyway.

    Of course when the City gets sued, it is the City Attorney’s job to defend the City, and all of its boneheaded mistakes. But providing an informed defense also includes advising the client of settlement options. In my opinion the City Attorney should have advised its boneheaded clients thusly: “You guys screwed up! She has you over a barrell! You better sit down and talk to her!” For all I know, they had that chat, but City reps refused to talk settlement with me, even though I offered several times. I had real issues with the way the City Attorney’s office litigated this case – you can read the details on my blog.
    To those of you who may think I’m biting off my nose to spite my face with this lawsuit, I have already told the City Attorney’s office (this morning) I want to sit down and talk settlement with them. I am hoping we can reach some agreement that won’t bankrupt the City, but that will also address the public safety and accountability issues raised in my litigation. If the City refuses to come to the table and resolve this case in the spirit of the intent of Measure Y, and insists on going forward with an appeal, they’ll be biting off their nose to spite their face.

  4. Max Allstadt

    Exactly. I don’t think John Russo had a choice on this one way or another. His job is also meant to be apolitical. That’s why when we hear him speak, it’s either in broad strokes, about issues that are bigger than Oakland or about the technicalities of what he’s specifically working on.

    And regardless of the technicalities of this suit, it is clear to me based on verifiable stats presented by Vsmoothe that Measure Y isn’t working.

  5. len raphael

    MA, as ML pointed out we don’t know what Russo told the council in private session (was there one on this?) or privately, but a good attorney does everything possible to stop the client from screwing up. But then having this city council and mayor as your client must be entertaining.

    ML, how/who did the “spite this to save that” phrase get attached to your admirable efforts?

    -len

  6. livegreen

    In the meantime where do Minutes fit into this? For example, making heads or tales of the C.C.’s or Measure Y Oversight Committee minutes is infuriating. They’re often not even posted…I understand this has also been a frustration for members of some commissions who wonder if the City’s lack of good minute taking (or lack of posting them) doesn’t serve the interests of City leaders.

    When I go to the M-Y website and look for 2008 minutes they’re hard to find, the minutes for the 2-23 meeting pulls up minutes for the 2-2 meeting. And that shows cancelled because they didn’t have a Quarum, and a March meeting shows cancelled also.

    Does the C.C. want citizen “oversight” or any involvement? Doesn’t look that way…

  7. Patrick

    I think that the comment by Russo’s spokesman, Alex Katz, is most incredible: “The city is better served and the interests of the voters is better met when we have experienced officers in (Measure Y) positions.” Nice. In other words, “The people of Oakland are stupid so we feel justified in spending the money any way we damn well please. Screw the legal consequences!”

    Whether or not the statement is an accurate one is irrelevant. MEASURE Y FUNDS WERE USED ILLEGALLY. And they’re planning on using more of our tax dollars to appeal? That will make for great mud to sling during Russo’s Mayoral campaign.

  8. livegreen

    One might recall that when the Mayor announced his plan to hire more officers, he advised he would use M-Y funds, and that he had Russo’s formal advice that this was legal. I attended one of the C.C.’s Public Safety Committee meetings where several speakers expressed concern about raiding M-Y funds, and that if they did so they should pay the M-Y fund back. Maya Dillard-Smith warned this would cause M-Y funding to run out early…

    Larry Reid remarked that Russo had better get an independent legal opinion on this, otherwise it would look pretty shaky if somebody decided to sue…

    All of this came has come to pass. Russo must have known about Reid’s opinion (between direct contact and having a member at the Committee’s meeting). One can’t say that it wasn’t predictable when even the Politicos were predicting it. If the Mayor had listened, and the C.C. had stood up to what they already knew once this went to full committee, none of this would have been necessary…

    Brought to us by the same people who brought us the Riders NSA. And keeps more OPD Investigators in Internal Affairs monitoring 800+ officers than investigating crimes against 400,000 citizens of Oakland. Now what can legally be done about THAT?

  9. len raphael

    I’d think we’re screwed and tatto’d on the NSA unless it’s possible to sue Federal Judge Thelton Henderson for violating the civil rights of residents by requiring OPD to divert resources away from crime fighting to paper work.

    But heck, as has been pointed out it wasn’t Henderson who required Oakland to staff IA mostly with cops instead of civilians. That was an OPD decision made at the end of Brown’s term probably to simultaneously kiss the judge’s butt and the police union’s .

    -len raphael
    temescal

  10. livegreen

    Len, That was pointed out by Russo, who has an interest in defending the NSA both because he was it’s brilliant author, and because as the City Attorney he’s obliged to defend the NSA since they agreed to it…

    The NSA says allocation of staff shouldn’t be at the expense of OPD carrying out it’s legally required duties of enforcing the laws of the City of Oakland. Here’s the problem: nobody can argue that to the Judge!

    Why? Because both Burris and Russo are representing the two parties and they’re both required to defend it.

    So if nobody is representing the legal rights of the Citizens of Oakland then my guess is Judge Henderson hasn’t heard any other side. And after the recent killing of 4 police officers, and even prior to that the numerous unsolved cases by OPD Investigators who are overburdened with caseloads of 50+ each, how can it legally be possible that OPD is able to carry out their obligations to Oakland citizens?

    Catch-22, it simply isn’t possible. Without a lawyer on our side there’s simply nobody there to represent us in front of the Judge and no way for him to hear this opinion from the lawyers he regularly hears from in court…

  11. Charles Pine

    As city attorney, Russo wrote the so-called “impartial analysis” of Measure Y when it was on the Nov. 2004 ballot. He had an opportunity to point out that “appropriation” of funds for the prerequisite 739 police before the new tax can be collected did not require actual expenditure of appropriated funds, actual hiring of 739 police. Russo kept his mouth shut — until a few weeks after Y passed.

  12. danny wan

    This is Danny Wan. I was the principal author of Measure Y. The judge’s interpretation is right on as to at least my intent on the use of measure y money – to hire NEW officers and that each police beat would get an assigned officer whose principal job is to patrol that beat.

    It is disappointing to see that the city’s administration is unable to manage finances in order to use taxpayers’ money as intended. I am not anti-tax, but certainly lost confidence in the city’s ability to use tax money wisely.

    I’d help to write an argument against any newly proposed tax measures. People should be vigilant as the deadlines for submitting arguments are fairly short.

  13. Charles Pine

    Mr. Wan, you are an attorney and were when you helped write Measure Y. Do you tell us now that you did not know that its “appropriation” requirement does not guarantee a total of 802 police, in fact, does not guarantee one new officer?

    Charles Pine

  14. len raphael

    DW, thank you for your offer.
    1. what are the deadlines for submitting arguments to proposed city tax measures?
    2. what is the process to determine who gets to write them?

    -len raphael
    temescal

  15. MarleenLee

    Contact the City Clerk’s office regarding the rules on submitting ballot arguments. I checked the last time to see if I could write something against NN, and they have rules that top priority goes to sitting government officials. Private citizens are last in the pecking order. So I tried to work with IDLF’s office to come up with something, but I didn’t agree with all of the facts that they ended up putting in their argument, so my name did not go on it in the end.

    As I already indicated to Mr. Wan on my blog, I don’t agree with the judge’s ruling in every respect – particularly the ruling on whether Measure Y requires staffing at 802 officers. This is what Mr. Wan and all his cohorts on the City Council promised at the time – in writing. And they didn’t deliver. Opposing new taxes is nice, but how about helping me force the City to honor its obligations with respect to Measure Y? That would be far more productive.