Meyers Nave

Feb 012012

David Irmer

According to the latest agenda, the San Leandro City Council will meet on Feb. 6th to discuss the price and terms of payment for the former Albertson’s property to developer David Irmer (president of Innisfree Co.), who plans to turn it into a strip mall.   Apparently, the City Council has already quietly agreed to sell the property to him.

The City bought the property for $6M in April 2009 and then immediately turned it over to Irmer to develop.  Three years later, it is selling it to Irmer for about $2.5M*, 60% less than it paid for it and a $3.5M loss to taxpayers.

The City has offered no explanation as to why Irmer didn’t directly buy the property in 2009, though  it was to Irmer’s advantage to wait until the commercial property market reached rock bottom before buying it.  Had the property’s price gone up, Irmer was under no obligation to buy it.    It is also unclear whether the city overpaid for the property in 2009 or whether it is selling it to Irmer for less than its market price.  While commercial property prices have gone down since 2009, the price decline has not been anywhere near 60%.  In either case the City, presumably following the advise from the lawfirm Meyers Nave, would have violated the law.

The City bought the Albertson’s property in 2009 to settle a lawsuit by Norcal, the former owners of the property.  Norcal sued when the City refused to allow Grocery Outlet to move into the Albertson’s property.  At the time, the City Council said that a supermarket was inconsistent with the City’s Transit Oriented Development plan (though apparently the City Council has changed its mind as another supermarket, Fresh & Easy, will anchor the new strip mall).  It is thus possible that the City willingly overpaid for the Albertson’s property at that time.  Doing so, however, would be illegal.

It is of course legal for cities to settle lawsuits, but they can only do so with their own.   The Albertson’s site was actually bought by the City’s Redevelopment Agency, an independent legal entity.  The recently eliminated redevelopment agencies were obligated to pay “market price” for any property they acquired – thus overpaying for a property to settle a lawsuit against a different party, is illegal.

If the City did not break the law in 2009 and did not overpay for the property then, then it must be undercharging for it now (as, again, property values have not gone down by 60%).  The California Constitution prohibits local government from making gifts of public money to private individual, allowing a private party to buy a public property for less than its worth constitutes a “gift”.  It is, therefore,  illegal.

The sale of the Albertson’s property to David Irmer has been done totally behind closed doors.  Not only did the City now allow any other party to bid on the property, but it conducted the sale without any notice to the public.  It gave the community no opportunity to be heard on this issue.  While the developer conducted a few community fora to inform the community about his plans, none of the concerns presented by San Leandrans have been addressed.

There isn’t very much we, as San Leandrans, can do about this now, though I’d urge you e-mail the City Council to at least put your objections on the record.  It is also something worth remembering come November 2012, when Ursula Reed and Jim Prola run for re-election.


* While City staff have indicated that they will sell the property for $3M, Irmer has said he expects to pay only $2.5M for it.

Nov 092011

Did the City Attorney collude with DeWayne Stancill to erase history and defraud CalPERS?

Last week, news of the settlement between the City of San Leandro and former SLPD officer DeWayne Stancill hit the airwaves.  Stancill had been fired from the SLPD after he complained of racial harassment, following accusations of sexually harassing female officers.  The reasons given for Stancill’s firing were unrelated, but they also didn’t seem solid.  Stancill sued the city for wrongful termination, and last January the city settled.

It’s the elements of the settlement (posted below) which I find disturbing:

– The city agreed to pay Stancill $135,000 (plus attorneys fees), but only if he provided a doctor’s note saying that he had been injured in the course of duty.  Those $135,000 would then be considered compensation for those injuries.

– Stancill was to be reinstated into the SLPD, without pay, so that he could then apply for an “Industrial Disability Retirement” from CalPERS.

– If CalPERS did not grant Stancill a disability pension, then the settlement agreement was void.

Also, as part of the settlement agreement:

– The city agreed to exonerate Stancill

– The city agreed to destroy all documents related to Stancill’s demotion from Sergeant and firing, including the termination letters and the investigation reports leading to those actions and all documents regarding the sexual harassment claims against Stancill, including the Estrin report, among others.

– The city would replace the memorandum detailing the reasons why Stancill should be demoted with a form that just says that his probationary period had ended.  It’s not clear to me whether that form was created in 2009, or was created for the settlement and backdated to 2009.  The latter would seem fraudulent to me.

If Stancill did  not get the disability retirement, however, this part of the settlement would also be void.  That meant that Stancill would not have been exonerated.

Now, this may all be perfectly legal, but it seems terribly unethical to me.  Either Stancill was injured during his tenure or not. If he was, he should pursue those issues with CalPERS independently of this lawsuit.  If he wasn’t, the city should not conspire with him to defraud CalPERS.

Similarly, either Stancill committed the acts for which he was demoted and fired, or not.  If he did, the city should not lie and exonerate him, much less destroy all the information about his misconduct.  If he didn’t commit those acts, he should be exonerated regardless of whether he has a doctor’s note documenting his disability.  Again, those things should be independent.  Moreover, it’s deeply disturbing that the city agreed to destroy the documents about the sexual harassment of the female officers, thus deleting a piece of SLPD history that should not be forgotten.  Now, unethical agreements like this are filed every day, but I wished our City would be not be that sleazy.  I am sure that this settlement is the brainchild of Meyers Nave, the firm that represents the City, but it had to be approved by the City Council.

Settlement Agreement between DeWayne Stancill & the City of San Leandro


Nov 022011

Former SLPD officer DeWayne Stancill

Read the legal documents on the allegations of racial and sexual harassment and the SLPD.

(This post has been revised and re-revised since its original publication).

In early 2008, a number of female police officers at the San Leandro Police Department made internal complaints regarding sexual harassment by then sergeant DeWayne Stancill.  The city responded by promptly hiring an outside investigator to look into the complaints.  The report concluded that the complaints were unfounded, but that Stancill’s behavior had at times been inappropriate.  A second investigation prompted by reports of sexual harassment and retaliation made by Officer Debra Trujillo against Stancill, also cleared him of wrongdoing.   Stancill then filed his own complaint of racial harassment, naming the officers who previously complained against him as well as others associated with them.  The City hired a private attorney to investigate the matter, who concluded that some officers had made derogatory remarks against Stancill, but it wasn’t because of his race.

Stancill was later demoted from Sergeant and then fired for allegedly unrelated reasons.

The female officers sued for sexual harassment and discrimination, and the City settled for various amounts, from $25K to $295K.   The City also agreed to institute changes in the police department, including changes to how promotions are given.    In the case of Officer Trujillo, the City did not settle, went to trial and won.  Stancill sued the City for wrongful termination, the City recently settled that lawsuit for over $300K, including attorney’s fees. He was reinstated to his job, from which he then retired.

Recently, the East Bay Express published an article on the controversy written by San Leandro blogger Steven Tavares.  Tavares is not particularly well known for his journalistic standards, and he mostly tells Stancill’s side of the story, but it’s a story that has not been told before.  Given the gravity of the story, and its cost to the city, I think it’s a story that has to be told carefully.

At this point, having read only the private investigation reports, I have more questions than answers: Why did the City spend over $1M settling cases that its investigators have deemed baseless? If the city was concerned with the cost/risk of litigation, why did it not settle the case brought by Officer Trujillo? What were the real basis of animosity towards Stancill in the department?  Why was he really fired?  Is the fact that Stancill’s 19yo son, a gang member, shot and killed a SLHS student during this period, unrelated to how other officers reacted towards him? And is the tendentious nature of the report on Stancill’s allegations a result of the investigator’s ineptitude or a sign of what the City Attorney wanted the “official story” to be?

I hope to find some answers as I read more of the court documents.  I will post those documents I find relevant here. I will be posting the City’s private investigators’ reports on the sexual and racial harassment allegations.  These reports should not have been made public, as they convey private information about police officers and opinions presented by them in what they thought was a confidential setting.  However, the reports were made public when introduced into the court proceedings and are available for download from the court’s website.  I am posting them here for ease of access, but I’m redacting names of people who refused to make official complains, as well as others who did not have a chance to defend themselves.  I am also redacting personal information that is irrelevant to the case.

Report on the Investigation of Sexual Harassment complaints
This report was made by private investigator Debra L. Estrin, who was hired by the law firm that represents the city, Meyers Nave, to investigate the claims made by female police officers of sexual harassment by DeWayne Stancill.  In my opinion, it’s a well researched and professionally written report.

Report on the Investigation of Stancill’s allegations of racial harassment
This report was made by private attorney Patricia Elliot, hired by Meyers Nave to investigate allegations of racial harassment made by DeWayne Stancill.  This report is sloppily written, with multiple factual mistakes, selectively quotes parts of the Estrin report, ignoring the context, and comes to conclusions unsupported by the evidence presented.  Whether that’s because of incompetence by the investigator, personal bias or direction by Meyers Nave is unclear.

City’s Motion for Summary Judgement
On the case brought by Stancill for wrongful termination.  It explains the city’s reasons for terminating Stancil: that he acted unprofessionally by wearing a teaching saying “Acquitted,” after the report on the sexual harassment complaints (see above) came out, by not recusing himself from doing the background check on an applicant which he knew (he told his supervisor her knew the applicant, but not that he had previously recommended him for another job), and by not telling a sergeant that he believed the father of an injured suspect was a dangerous “crook”, when said sergeant suggested he let said father see his son in the hospital.  The motion was denied.

Oct 042011

Today (Oct. 3, 2011), the US Supreme Court denied certiorari on the City of San Leandro vs. Faith Fellowship case.  As it is its practice, the Supreme Court did not provide a reason for this denial.  What this means is that if this case it’s not settled, it will go on to trial.  The jury will then have to decide basically whether the Church could have acquired another property in a residential-zoned area of San Leandro that would have suited their purposes.  Former city manager Jermanis said in his deposition that it couldn’t.  In my opinion, it’s quite likely that the Church would win.

The question now is one of damages.  How much would the Church be awarded if it went to trial, and how much should the city offer to settle for so as to avoid going to trial.   Previous statements by the Church, suggest that they’ll be asking for as much as $3.7 million in damages, the $1.2 million they paid in mortgage payments while the owned, but could not occupy the Catalina St. property, and the $2 million they lost when they finally had to sell it.  To that we should add the Church’s attorney fees, which could be in the hundreds of thousands of dollars (the City of San Leandro itself has spent about $600,000 on this lawsuit).

The city has an ace up its sleeve, however.  Quoting from a previous post: “it is not clear that RLUIPA [the Religious Land Use and Institutionalized Persons Act, under which this case is being fought]  allows for money damages.  While some courts have found that it does, following the Supreme Court’s reasoning in Franklin v. Gwinett, the US Supreme Court just ruled in Sossamon v. Texas (a case involving prisoners’ religious rights) that  the phrase “‘[a]ppropriate relief’ is open-ended and ambiguous about what types of relief it includes” and that, at least in the case of lawsuits against states (which, unlike municipalities, enjoy sovereign immunity) it should not be interpreted to include monetary damages.  Now, because the Sossamon court ruled on very specific circumstances, it’s not clear how lower courts will interpret the decision.  They may very well conclude that it would be inconsistent to read RLUIPA’s grant of “appropriate relief” to include monetary damages when the state actor is a municipality or county, but to not include them when the actor is a state.  Or they may decide that the fact that Supreme Court specifically differentiated Sossamon from Franklin means that Franklin applies to non-sovereign RLUIPA defendants.”

This means that while the city has almost certainly lost the case, the matter of how much – if anything – it will have to pay Faith Fellowship is still in the air.  The city could chose to try its chances at a trial and, if it loses (as it’s likely), fight the question of monetary damages.  It once again can go up the appellate ladder all the way to the US Supreme Court.   This would certainly please Meyers Nave, the city’s law firm, which has raked in millions of dollars out of the bad advise it’s given the city.  Another series of trials and appeals could mean hundreds of thousands of dollars more in their pockets.

The realistic threat of further litigation, which would mean not getting a final settlement for several more years, if at all, might make Faith Fellowship more willing to settle for a reasonable sum.  Of course, pursuing settlement options would have been a better choice back in February before the 9th circuit and the Supreme Court said “no”  to the City, now Faith Fellowship has much less to lose.  But money with which they could buy a new property now is better than money a few years from now.

Whether the city decides to settle or go to trial, I can only hope they will finally do the smart thing and hire a /new/ law firm to represent them.  Meyers Nave terrible advise on this case will most likely end up costing the city millions of dollars, and truth be told, we cannot afford to keep taking their advise.

Previous Posts on this subject

San Leandro gears up for Constitutional fight (May 2011)

The Faith Fellowship lawsuit: it’s time for the city of San Leandro to settle (April 2011)

A primer on the Faith Fellowship v. San Leandro lawsuit (April 2011)

A look at San Leandro’s City Attorney: Time to fire Meyers Nave?

May 072011

Hires premier anti-RLUIPA advocate to argue for its unconstitutionality

I was sad, if not surprised, to read that the San Leandro City Council voted 5-2 (with Mayor Cassidy & Councilwoman Cutter in the minority) to appeal the 9th circuit Faith Fellowship decision to the US Supreme Court.   That’s exactly what I predicted Meyers Nave, the City’s law firm, would push the City Council to do.  I was tickled, however, to read that they’ve engaged Cardozo Law Professor Marci A. Hamilton to represent them on this appeal.  Hamilton is not only the country’s most prominent critic of RLUIPA,  and of government accommodation of religion in general, but she’s a woman with a mission:  get the Supreme Court to declare RLUIPA unconstitutional.   San Leandro may just help her accomplish that goal.

The Faith Fellowship case has so far involved rather technical matters: what is the proper standard for “substantial burden” under RLUIPA.  Circuits courts have come to different conclusions as to what this entails, which allows the Supreme Court to take on the case.  However, the US Supreme Court has so far denied all cert petitions on RLUIPA land issues, most recently in January.  This is not surprising, finding a “substantial burden” test that would make the law both meaningful without being abusive in all circumstances is quite difficult, courts have gone back and forth on definitions as new situations arise.  The Supreme Court may find it prudent to wait until the dust is a bit more settled at the circuit court  level before it intervenes.

But I don’t believe that Professor Hamilton has any plans to appeal this case, other than nominally, on the proper definition of “substantial burden”.  Hamilton, indeed, has repeatedly said that RLUIPA allows religious institutions to do anything they want.  She’s suggested the statute be subtitled “A Bill to Permit Religious Landowners to Do Whatever They Want in Residential Neighborhoods and to Subsidize Lawyers for Religious Landowners with an Attorney’s Fee Provision”.   A narrow “substantial burden” definition would not fit neatly with her description of RLUIPA as a “circus“.

Hamilton, I suspect, will use this opportunity to lounge a full front attack on the constitutionality of RLUIPA, most likely on federalist grounds (i.e. that the federal government doesn’t have the right to tell municipalities how to regulate land use).  She’s well suited for the task.  In 1997 she represented the City of Boerne in the landmark Supreme Court case that overturned the Religious Freedom Restoration Act vis a vis state and local governments.  While Congress created RLUIPA mindful of the Boerne case, and every single circuit court that has looked at the constitutionality question has upheld it, Hamilton is hopeful that the more conservative members of the court will side with her.  My guess is that if the Supreme Court does take this case it will do so to tackle the constitutional question.  The fact that Hamilton will be the one arguing the case, may indeed make it more likely that they’ll take it.  The odds are still quite slim, however.

If the Supreme Court does take the case, Hamilton won’t just be facing the able lawyers from the Pacific Justice Institute (PJI).  The US Justice Department will most likely intervene to defend the constitutionality of the law.

Even if the Supreme Court finds that the “strict scrutiny” provisions of RLUIPA are unconstitutional, the Supreme Court (or lower courts, if the Supreme Court remands the case) will still have to consider the question of whether the City of San Leandro violated Faith Fellowship’s constitutional rights to freedom expression and religious exercise and its constitutional and statutory right to equal protection of the laws.  The latter claims come about because San Leandro allows “commercial entertainment” uses in the industrial area but not “assembly” uses.  The 9th circuit didn’t address this issue, but left it open for future litigation.

Personally, I continue to believe that appealing this case to the Supreme Court is a costly mistake.  If the Supreme Court takes the case, it’s very unlikely that it will rule for the city on all grounds without remanding any to a lower court.  If it does remand the case, that would mean further litigation and much more money spent on attorneys’ fees.  We are a poor city that has had to cut libraries, recreational activities and most social services – we can’t afford to be handing money to lawyers for no good reason.

The prudent thing for San Leandro to do is to work to settle this case, preferably in the next 6 months before the Supreme Court either rejects it or takes it on.

Update 5/8/11

I e-mailed Prof. Hamilton and asked her why she took the case.  Here is her answer:

“I took this case, because it meets the typical criteria that interest the Supreme Court: the relevant issues have been percolating for a significant period of time, the courts are split on the proper interpretation of the key terms, and the issues were directly addressed by the appellate court.  It is time for the Court to take up one or more RLUIPA land use issues.

 Also–the Ninth Circuit’s interpretation in this case is an extreme interpretation that unfairly favors religious land owners and, therefore, is a good case to take up to the Supreme Court.”

Marci Hamilton on the Daily Show

Marci A. Hamilton on Flaws of Religious Land Use Law