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.