Oct 212013


It’s Confirmed: I’m the Subject of a Police Investigation

Update: Today, Nov. 18th, I received the response to the California Public Records request I filed on my name.  The turned in some records, “forgot” others, and specifically declined to turn in others.  Here are the reasons they gave for not turning in those records:

1)      The records reflect the analysis or conclusions of an investigating officer and are exempt under California Government Code section 6254(f).

2)      The records contain attorney-client communications, “the disclosure of which is exempted or prohibited pursuant to federal or state law… relating to privilege” under California Government Code Section 6254(k).  Thus, pursuant to Government Code Section 6254(k), the records are exempt from disclosure as attorney-client privilege pursuant to California Evidence Code section 954 as it applies to those portions of the records requested containing confidential communications between the City and its legal counsel.

3)      The records contain personal contact information and are exempt pursuant to the public interest exemption under California Government Code section 6255.  The public interest served by withholding the record outweighs the public interest in disclosure.

So that we are clear, reason 1 only applies to investigations by law enforcement agencies.  A record of an investigation by some other part of City Hall, would not be included.  This means that my name appears in an SLPD investigatory report.  Moreover, as I have never been interviewed by SLPD nor do I have any personal knowledge of anything that would relate to a personal investigation – there is no reason whatsoever for it to appear in such an investigative record except if I was the subject of the investigation.

I was a little puzzled about reason 3, because a lot of the records they did disclose included personal contact information.  However, a friend in law enforcement mentioned that if they had used a Confidential Informant on my case, they would not want to disclose the information.  In his opinion “A confidential informant has made up lies about you, which means someone asked that CI questions about you, which means you have been investigated for some reason or another.”

Whatever reasons they were, it would seem by answer 2 that the City Attorney was involved.

So, the far I expressed a few weeks ago, that the SLPD is investigating me – or, more likely, trying to frame me for something to silence my criticisms – seems to have been justified.

Original posting from 10/21/23

This morning I woke up to a new concern: Is the  San Leandro Police Department working hard to frame me for something?

As their most outspoken critic, I’ve certainly given them plenty of reasons. And it’s not like they don’t have a history of malicious arrests and prosecutions: the City just settled the lawsuit brought by the two men that were arrested last year in a sting operation directed against gay men.  And then there is High School teacher Rick Styner, who is facing false charges of “panties burglary” and possession of child pornography because he did something to piss off former San Leandro High School Principal and cop darling Amy Furtado.

I don’t think I’m paranoid in thinking I’m next on their list. If they silence me, others may be less willing to speak out against police misconduct.

Of course, using the resources of the Police Department to persecute critics is exactly the sort of thing you see in a police state, and that’s what my warnings have been about. Surveillance is of little use if you’re not planning to do something with it.

But let’s not get ahead of ourselves. I don’t actually have any concrete reasons to believe the SLPD is investigating me.  All I have is the knowledge that City Hall is trying to hide information concerning me, from me.

About six weeks ago I made a California Public Records Act request for any records of communications that included my name. I figured with all my public criticism of the police and City Hall, it’d be interesting to see if they were talking about me.

Apparently they are. Today I got word that they’ve compiled all the records with my name but need three more weeks “to cull the responsive non-exempt documents from the documents exempt from disclosure.”

Trouble is, no record that has my name should be exempt.

Exempt records tend to be things where there is a big need to protect the privacy interests of someone else. For example, personnel and medical records are exempt, as are records with private information citizens are compelled to submit. Litigation records are exempt, but only during the litigation. There is no legitimate reason for my name to appear on any legal records, anyway.

Now, it’s true that the City may try to use the “draft” exemption, and claim that any document that has my name that they don’t want to release is a mere draft. However, such situations require a balancing act of the public interest of disclosure vs. non-disclosure. I’m pretty sure that any Court would agree that they fall in my favor. Plus, in the past, the City has not used this excuse to not provide public records. If it did now, we’d know it definitely has something to hide.

In reality, the only exemptions that the City could legitimately invoke to deprive me of records containing my name is the “investigative” and “intelligence” exemptions. That means that if the SLPD is investigating me, the City doesn’t have to give me those records. It will, however, have to tell me the reason why it’s not giving me the records. I’ll have to wait three weeks to know.

I do know that I have not committed any crimes. I should qualify that by saying “knowingly”, because experts say that the average person commits three felonies a day.  Our system is set up so that if the powers that be want to go against someone, they can use the “law” to do so.  And unless we stand up against it, it will become even more so.

Ultimately, regardless of whether I’m being investigated or not, the mere fact that I am concerned about police retaliation for exercising my first amendment rights to free speech and petition, speaks greatly of how repressive our system is becoming.

Update: The City had said it’d fulfill my CPRA request by Nov. 11th.  I inquired about it on Nov. 12th and was told it’d be ready sometime this week.  I inquired about it again today, and now they say it’ll be sometime in the week of Nov. 15th.

Feb 062012

It’s worse than I thought, but is it intentional or just careless?

Just ask public officials, perhaps over a few beers, how they feel about the pesky public looking over their shoulder as they try to “get things done.”   They hate it.  Public oversight means they have to worry about following the law, hiding any corrupt deals and being held accountable for their actions.

As the corruption facilitated by secrecy has dire consequences for society at large (just think of the City of Bell), the California legislature long ago passed the Brown Act to guarantee the public notice and access to government meetings, and the California Public Records Act to grant access to government documents.  Local governments have been trying to skirt them ever since.

I have noted before actual and threatened violations of these laws by the San Leandro City Council.  Recently, I’ve become aware of a number of recurring and and very serious violations that allow the City Council to deliberate secretly.  I’ve given the City the benefit of the doubt – perhaps nobody at City Hall is actually aware of the law or perhaps they’ve just been careless – and I’ve written to City officials* requesting that they cease these violations.  How (and whether) they respond, and more importantly whether they actually comply with my request to obey the law, will be very indicative of the trustworthiness and ethics of our City Officials and our City Attorney.

The following are the Brown Act violations that I’ve discovered in the last few days

The City Council Appears to Have Deliberated Secretly on the Sale of the former Albertson’s Property

The City Council agenda for Feb. 6th, 2012 lists “Conference with Real Property Negotiators”  as one of its closed session items.  It says that they are currently negotiating the “price and terms of payment” with Innisfree Ventures II, David Irmer’s development firm.  This implies that the City Council has already agreed to sell the former Albertson’s property to Irmer, or at least has discussed it; you don’t negotiate a price for a property you are not ready to sell.   The Brown Act requires that any discussion on the sale of the property as well as any instruction to the City Manager (or anyone else) to initiate negotiations for the sale of the property, must be done in open session, after being properly agendized.  A search of the agendas, minutes and other public records in the online Public Records Database maintained by the city, did not produce any records of such discussions or decisions.  It would appear that these discussions were made informally or in closed session, in violation of the law.

The City Council Mislabels Public City Council Meetings as “Closed Sessions”

The City Council publishes agendas both for its open and closed sessions.  Closed sessions usually start at 6PM and open sessions at 7PM.  Agendas for closed sessions are labeled “Closed Session” while those for open sessions are labeled  “Regular Meeting”  or “Joint Meeting with Redevelopment Agency.”   I was just informed by the City Clerk, however, that a portion of the meeting labeled closed session is actually an open session, in which the City Council can transact all sorts of business, including making required announcements.  But as the meeting is not labeled “open session,” or “regular meeting”  or anything other than “closed session,” the public has no reason to know that this is a meeting they are free to attend.  The results are that practically nobody is likely to go to these meetings, and thus nobody witnesses what was said or not said there.

The City Council Fails to Include All Required Items in the “Open/Closed Session”  Agendas

The Brown Act provides that “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda.”  However, it would appear that actions and discussions not appearing in the agenda are actually carried out in what the City considers to be the “open” part of closed sessions (hereby described as “open/closed sessions”).  This came to my attention on Friday, when I e-mailed the City Council et al. to alert them to the fact that while the Brown Act allows the City Council to meet in closed session with property negotiators, as it was itemized in the agenda for the Feb. 6th meeting, the negotiators’  identities must first be announced in open session.  The City Clerk responded by saying that there would be an open session prior to the closed session in question, thus suggesting that the announcement would be made at that point.  However, the agenda for that open/closed session only included two items: Roll Call and Public Comments.  This is, indeed, the case with all the closed session agendas that I’ve seen.  So it would appear that the City Council conducts business during these open/closed sessions that is not disclosed in the agenda

The City Council Fails to Keep Minutes of the “Open/Closed Session” Meetings.

California law requires the City Clerk to “keep a correct record of [City Council] proceedings”, and indeed, minutes and/or recordings** are produced and posted online for regular open session meetings.  This does not appear to be the case, however, with respect to open/closed meetings.  For example, there are no minutes for the Dec. 13th, 2010 open/closed session, even though a number of people (including myself) attended and made public comments at that meeting.

So basically we have a situation in which the City Council seems to 1) be holding public meetings without alerting the public about it, 2) not including all items to be discussed in the agenda and 3) not keeping minutes of those meetings – all in violation of state law.

There is yet another serious way in which the City violates the Brown Act:

The City Council Fails to Disclose the Subject of Anticipated Litigation

The Brown Act allows the City Council to meet in closed session to discuss exposures to litigation against the City.  However, the law also provides that the closed session agenda must describe the “facts and circumstances” which have exposed the City to litigation, except when such facts are not known to the potential plaintiff.  A quick look through a sample of City Council agendas from 1998 on suggests that those facts and circumstances are never disclosed, even in cases where it’s very clear that the potential plaintiff is quite aware of what those facts are (e.g. the murder of Gwendolyn Killings and the disagreement with Dan Dillman about the use of the Bal Theatre).

The disclosure of this information is very important for the public as it allows San Leandrans to keep a closer tab on how the City is fulfilling its legal obligations towards the community.  A plethora of circumstances that make litigation against the Police Department likely, suggests that there are serious troubles with that institution.  The City Attorney’s judgement that the City may be sued for employment discrimination or Brown Act violations, will shine some light into what’s going on at City Hall.  Litigation is also very expensive, so it behooves the public to keep a close eye on what the City is doing to bring about lawsuits against it.

I find this pattern of violations of Open Meeting laws to be very disturbing.    I can only hope that they will be addressed immediately by our City Officials.  I will keep you posted of any response I receive.


* I sent my initial e-mail to Mayor Stephen Cassidy, City Council Members Michael Gregory, Ursula Reed, Diana Souza, Joyce Starosciak, Pauline Cutter and Jim Prola, City Attorney Jayne Williams, Community Relations Representative Kathy Ornelas and City Clerk Marian Handa.  Handa responded to that message, also copying City Manager Chris Zapata and Assistant City Manager Lianne Marshall.

** Minutes and/or audio from meetings from January 2011 on can be found at http://www.sanleandro.org/depts/cityhall/council/audio/audiostream.asp

Jun 302011

Americans generally believe in open government.  We give our democratically-elected federal, state and local governments enormous authority over our lives and pay for the privilege with a substantial percentage of our earnings, the least we want in return is to know what the government is up to.  To that end, both the federal and state governments have passed “open government” laws that require open meetings and the release of public information.    In California, the Brown Act regulates how government meetings can be held, while the California Public Records Act (CPRA) provides for access to public records.

Local politicians and city employees are not particularly fond of these laws.  They limit the deals they can do behind the scenes and make them more accountable to the public – at least in communities where there is a functioning press keeping tabs on local government.  While San Leandro is not one of those communities – the Daily Review doesn’t even have a journalist assign to our city, and neither the San Leandro Times or San Leandro Patch do any investigative journalism -, it does have a few independent bloggers as well as concerned citizens that once in a while organize around a particular issue.  City officials, therefore, have an interest in trying to circumvent these open government laws that might expose their doings.

I have written before about how recently the City Council moved to pass a policy that would automatically destroy all their e-mails and how they have gotten rid of narrative minutes of city meetings.  Just as egregious, however, is a little known City Council policy of approving items without properly agendizing them – thus hiding their actions from the public.

According to the Brown Act, before any meeting the government body must  “post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting.”  The City Council, however, does not need to either discuss any item on the agenda or vote individually on those items.  Indeed, most meeting agendas include a “Consent Calendar” of items that the City Council will approve altogether and without discussion.  Any member of the City Council can “pull” an item from the consent calendar, for individual consideration, but members of the public cannot do so.  Members of the public can speak about any of the items in the Consent Calendar, but in order to do so, they must know what those items are.

The San Leandro City Council operates both as a full body and through standing committees.  These committees are usually composed of 3 City Council members are usually deal with concrete issues: rules, finance, facilities, relationship with the school district, etc.  In addition to the standing committees, the City Council occasionally creates ad-hoc committees to handle issues that come up, such as the hiring of a new city manager.  These committees are supposed to do the nitty-gritty work of the Council, read staff reports, discuss issues and decide upon them.  While these committees must publish agendas for their meetings and their meetings are open to the public, they mostly meet during the day when most people are at work and unable to attend, and therefore they seldom see any public participation.  City Council Committee members are therefore free to discuss and decide on issues without any public input.

The recommendations made by City Council Committees are supposed to be discussed and approved by the whole City Council before they become “law”.  They should be listed in the agenda as such, as required by the Brown Act.   They are not in San Leandro.  Rather, the City Council is asked to approve the minutes of the different committee meetings within the consent calendar, and by doing so, they approve their recommendation.   For example, let’s say that the Business & Housing Development Committee recommends increasing business fees by 1,000%, the agenda for the next City Council meeting should say: “Action: Approve increase of business fees by 1000%”.  What it would actually say  is: “Accept Business & Housing Development Committee minutes”.   When the City Council approves the minutes, it also approves the tax increase.  The public would have no clue as to what had just happened.

It’s not only the public that gets blindsided – new City Council members do as well, as they’re often not told of this policy until something comes up.   Indeed, due to complaints by a City Council member, more recent City Council agendas have been a bit more clear as to what the Council is voting to approve, actually listing the committees’ recommendations, but they still don’t make it clear that the Council is approving those recommendations when they approve the minutes.

Apr 162011

San Leandro City Attorney Jayne WilliamsUnlike many cities, San Leandro does not have a full time City Attorney of its own.  Instead, it contracts with Meyers Nave, one of the most important municipal law firms in the state, for legal advice and representation.  Jayne Williams, one of Meyers Nave’s principals, functions as San Leandro’s City attorney – but other members of the firm also do work for the city.  Unfortunately, the quality of the legal advice that San Leandro is getting from Meyers Nave seems to be quite poor. San Leandro is currently facing a multi-million dollar settlement/judgement in the Faith Fellowship case and is opening itself up to litigation on several fronts.  Meyers Nave benefits from the poor legal advice it provides to the city, charging attorney’s fees to represent it in lawsuits that arise when the city follows its advice.

As mentioned above, the most egregious example of this conflict of interest is the Faith Fellowship case.  Here, a local church that had undergone dramatic growth tried to move to a building large enough to accommodate its congregation.  The only property they could find that would work for them was zoned industrial, and the City Council refused to let them use that property as a church.  Faith Fellowship sued under the Religious Land Use and Institutionalized Persons Act (RLUIPA), and the 9th circuit recently ruled that the city had no compelling interest in denying them that use, and remanded the case for trial on other issues.  A close examination of the case leads me to believe that the city is not likely to prevail and will likely have to pay several million dollars in damages to the church.  The city has already spent $500,000 on legal costs alone, and will be on the hook for Faith Fellowship’s attorneys fees as well.

Meyers Nave’s behavior on this case has been outrageous.  First, it failed to warn the city about its legal liabilities under RLUIPA if it denied the church’s rezoning application.  While it did warn the City Council that they could get sued, it did not explain what the potential damages of the lawsuit might be or what the likelihood of the church succeeding was.  Once the City was sued, rather than advising the City to hire a law firm that specialized in RLUIPA and/or first amendment litigation, Meyers Nave had its own attorneys represent the city.  Meyers Nave made a lot of money on attorneys fees by doing so, but its attorneys were unable to produce coherent or convincing arguments. Attorney Deborah Fox, in particular, made a fool of herself during oral arguments before the 9th circuit – she was clearly unprepared and was unable to answer the judge’s questions with any credibility or coherence.  The rehearing petition filed after the 9th circuit unanimously ruled against the city is so poorly written and so disrespectful of both Faith Fellowship and the 9th Circuit appeals panel, that the city of San Leandro should be ashamed to be associated with it. Still, as inadvisable as filing that rehearing petition was, it does generate additional legal fees for Meyers Nave.

But the firm’s inadequate legal advice goes beyond the Faith Fellowship case.  In 2005, the City of San Leandro entered into an agreement with Redflex for the installation of six red light cameras in the city.  This agreement included a “cost neutrality” clause, which provided that the city and Redflex would share in the revenue from the red light camera tickets.  This cost neutrality provision, however, is explicitly in violation of California law and San Leandrans have been able to have their tickets dismissed on these grounds.  Moreover, there is currently a class action lawsuit on those exact grounds making its way through the courts that, if successful, might force the city in question to provide a refund to everyone who received a red light citation during that contract.   Meyers Nave does not appeared to have warned the city about the illegality of that contract provision and of the potential legal and financial consequences of having it in place – thus, once again, subjecting the city to needless legal risk.

At its next meeting, the City of San Leandro will likely extend its contract with Redflex.  The cost neutrality clause is gone (fortunately), but it remains questionable whether red light camera tickets are legal.  The City Attorney has not, once again, explained to City Council members what the legal issues related to red light cameras are and what the city’s legal risk is in signing this contract.

The same can be said about a new policy that the City is considering to automatically delete all staff and council e-mails.  This policy would violate the California Public Records Act, and would subject the city to litigation.  Has the City Attorney explained these risks (and potential costs) to the City Council?

I suspect that this is the proverbial tip of the iceberg.

My suspicion is that San Leandro would do better if it hired its own full-time city attorney, someone who was able to give it objective, realistic advice and had no incentive to get the city into costly litigation.

April 17th Update

In response to a question in the comments, I’m updating this note with some information about the financial arrangements between Meyers Nave and the City of San Leandro.  In 2008, the city entered into an amended agreement with Meyers Nave, for the firm to provide legal services indefinitely.  Until then, the city legal costs averaged about $900,000 a year, though they were over $1.2 MILLION for the 2007-08 fiscal year.  Legal costs under the amended contract are higher, and I will publish the actual expenditures when I get the numbers.  Under this new contract, Meyers Nave gets paid:

-around $28K a month for basic City Attorney services

-$210/hour for attorney services and $110/hour for paralegal services for non-basic services

-travel expenses

-5% of their fees for administrative costs

The amounts are to increase annually based on the consumer tax index, plus Meyers Nave may ask for additional compensation as it sees fit.

For more recent updates of what Jayne Williams and/or Meyers Nave has been up to in San Leandro, check out the Meyers Nave tag.

Apr 042011

Another day, another opportunity for the San Leandro City Council to show its contempt for good governance, the voters and, well, the law.  This time it comes courtesy of City staff and the City Council’s Rules & Communications Committee, presided by no other than Mayor Stephen Cassidy.  The Rules committee has readied  an amendment to the city’s Administrative Code to provide for the automatic deletion of all e-mails from the Inbox/sent folder and trash folder of all city employees & officials after a mere 120 days (4 months).

Of course, the City knows quite well that, under the law what they are planning to do is illegal.  The California Public Records Act provides for the retention of government records for a minimum of 2 years.   It defines records as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. ”  And this definition is quite broad, as both the attorney general and the California Court of Appeals have found: “This definition is intended to cover every conceivable kind of record that is involved in the governmental process and will pertain to any new form of record-keeping instrument as it is developed. Only purely personal information unrelated to “the conduct of the public’s business” could be considered exempt from this definition, i.e., the shopping list phoned from home, the letter to a public officer from a friend which is totally void of reference to governmental activities.”

The City, of course, is not prepared to argue that e-mails are not public records, because it would be a battle they would lose.  Instead, what they are doing is saying that as a matter of policy they will consider “every e-mail a preliminary draft and not retained in the ordinary course of business,” and make it incumbent upon each individual employee and council member to determine whether a particular e-mail is a public record per the CPRA, and if so, save it in a different folder.  The city is using the “draft” language because the CPRA makes an exception for “preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure.”  Of course, an e-mail message in no way meets the definition of “draft,” much less as outlined by California Supreme Court precedent on the matter.  Moreover, the city’s definition of what constitutes a public record is much narrower than that of the CPRA itself (see the City Council’s Draft Guidelines Regarding the Use of City Electronic Communications), which makes it likely that city staff and council will not save many e-mails that are public records under the CPRA.

San Leandro is by no means the first California city to have adopted a policy like this.  The city of Coronado adopted a similar policy in 2000 and landed a nice lawsuit that led it to change its procedure.  Monterey gave it a go in 2005, resulting in yet another lawsuit and a $110,000 attorney fees award for the lawyer who challenged the policy.  Still, this issue has not yet risen to the Appellate level and San Leandro may be willing to take the gamble that it won’t. It would not be the first time that the city took a risky legal position for no good reason.

It’s impossible to know how much making this amendment will cost the city, though I will note that the CPRA requires a court to award attorneys fees to a prevailing plaintiff – thus the $110K attorney fees judgment in the Monterey case.   This also means that a plaintiff is more likely to be able to find a pro-bono lawyer, knowing that they will eventually get paid.

From a practical point of view, this new policy is also likely to backfire.  Knowing that the City will automatically destroy all e-mail evidence  after 120 days, anyone interested in keeping an eye on what’s going on in the city could just do a CPRA request for all e-mails stored in all city computers every couple of months.  They could then just dump the data into a public website and people could search through it at their pleasure.  This, of course, would mean that rather than responding to occasional CPRA requests and gathering a limited amount of records, city staff would be burdened with regular CPRA requests that require gathering lots of records.  This doesn’t seem like good use for city staff time.

We can speculate as to what is prompting City staff to push for this policy change at this time.  It’s difficult to not believe that fear of having controversial information disclosed is not at the heart of it.  If so, it’s quite lamentable.