Sacks v. City Of Oakland, A126781

CourtCalifornia Court of Appeals
Writing for the CourtDondero, J.
Decision Date10 December 2010
PartiesMARLEEN SACKS, Plaintiff and Appellant, v. CITY OF OAKLAND, Defendant and Appellant.
Docket NumberA126817,No. RG08-380286,A126781

MARLEEN SACKS, Plaintiff and Appellant,
CITY OF OAKLAND, Defendant and Appellant.



Filed: December 10, 2010


Following a bench trial, a judgment was entered that granted in part and denied in part the petition for writ of mandate filed by Marleen Sacks (petitioner or Sacks), in which she contested the allocation and use of tax revenue collected by the City of Oakland (respondent or the City) pursuant to Measure Y, an ordinance enacted by the voters to add neighborhood beat officers to the police department, among other purposes. The City has filed an appeal from part of the judgment that declared impermissible the use of Measure Y funds to hire and train new officers to replace those assigned to the neighborhood beat positions, and directed the respondent to refund Measure Y revenue

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allocated to the impermissible use. In her appeal from the judgment petitioner asks us to reverse the part of the judgment that denied relief in the nature of a declaration that the City is required to maintain a police staff of 802 officers, including six crime reduction team officers. In a second appeal petitioner claims that she was entitled to an award of attorney fees pursuant to Code of Civil Procedure section 1021.5 and the common fund doctrine.1

We conclude that the City did not make an impermissible use of Measure Y funds by indirectly hiring and training new officers to replace veteran officers who were assigned to the neighborhood beat positions added by the ordinance. We further conclude that the City was required to appropriate funds, but not actually staff the police force, with the minimum number of officers specified by Measure Y. Finally, we conclude that the trial court did not abuse its discretion by denying petitioner an award of attorney fees. We therefore reverse the judgment in part, and affirm the denial of the award of attorney fees.


In 2004, the voters in the City enacted Measure Y, an ordinance which imposed a special parcel tax and commercial parking lot surcharge to be used for an "integrated program of violence prevention and public safety intervention." One of the primary specified purposes for the tax proceeds raised by the Measure Y ordinance (the ordinance or Measure Y) was to "hire and maintain" at "least a total of 63 police officers" assigned to enumerated "community policing" activities: primarily, "neighborhood beat officers," allocated one to each "community policing beat" solely to "serve the residents of that beat" by providing familiarity with the neighborhood, regular contact and prompt police response; supplemental police response to school safety and truancy; have at least six of the total additional officers assigned to investigate illegal narcotic transactions and violent crimes in identified violence hot spots; and, "additional officers" to "intervene in

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situations of domestic violence and child abuse."2 Other specified services to which at least 40 percent of the revenue was apportioned included youth outreach and after-school programs, domestic violence counselors, and fire services.

By its terms Measure Y directed the City to place the funds collected from the taxes into a "special fund" to be "expended only for the purposes authorized" by the ordinance. The special Measure Y revenue fund was maintained separately from the General fund, and the revenue sources in the Measure Y fund were "legally restricted to expenditures for specified purposes." The City was also required to perform an independent audit annually to "assure accountability and the proper disbursement of the proceeds" in accordance with the stated objectives of Measure Y. An oversight committee was created to review the audits for compliance with the ordinance. Measure Y further provided: "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 2003-2004," which was then 739 officers. The taxes imposed by Measure Y were to "continue in effect for 10 years" following the effective date of the ordinance, January 1, 2005.

Before Measure Y was enacted the Oakland Police Department (the Department) already operated a community policing program staffed with neighborhood beat officers "sometimes referred to as problem solving officers or 'PSO's'." The Department established "57 neighborhood beats," 14 of which were staffed with PSO's prior to the adoption of Measure Y. The Department had been involved in community-based police practices since 1994, and was considered a recognized leader in this approach to law enforcement.

Much of the revenue collected pursuant to the ordinance was not spent to directly add new officers to the neighborhood beat assignments. Even before Measure Y was

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enacted, for various identified reasons the Department assigned only veteran, experienced officers to neighborhood beat positions. Neighborhood beat officers provide a wide range of specialized community policing services which require advanced training and experience with members of the community. According to the Department's pre-existing deployment policy (General Order No. B-4), newly sworn officers, even after completing academy training, must successfully engage in patrol duties for a minimum of three years to gain needed experience before any transfer to neighborhood beat positions; the Department thereafter determines if patrol officers are ready and suited for community policing positions or other "out of patrol" assignments. After Measure Y was enacted the Department continued to follow its considered practice of assigning new officers to patrol rather than directly to the specialized community policing positions funded by the ordinance. With this practice in place the City implemented a policy to use Measure Y funds to recruit, hire and train additional new officers, who were assigned initially to patrol duties "to backfill" the positions of veteran officers who were transferred to the neighborhood beat positions.

Also, the Department did not immediately assign veteran officers to fill all of the neighborhood beat positions funded by Measure Y. To do so, the Department decided, would adversely impact essential patrol, response and emergency services while new officers were hired and trained, particularly due to the high attrition rate that resulted in the continuing loss of veteran officers both before and after the passage of Measure Y.

The City expended the revenue obtained from Measure Y to undertake a program of recruiting, hiring and training new officers to increase the Department staff to levels mandated by the ordinance. However, due to an even greater loss of existing officers through injuries and retirement, as well as unusually high attrition from the police academies, Department staffing levels decreased and the neighborhood beat positions were not promptly filled to the extent specified in Measure Y. By the middle of 2005, the Department force was 116 officers below the minimum level authorized by Measure Y, and only five new neighborhood beat officers had been assigned.

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In response, by September of 2005, the City adopted a "40 percent formula" to distribute funding to Measure Y objectives. The Department's deployment strategy was to assign 60 percent of its officers to patrol and 40 percent to community policing activities. Veteran police officers were deployed to Measure Y community policing positions at a rate of 40 percent of the newly hired officers, and 40 percent of the Measure Y funds were allocated to the costs associated with recruitment, hiring and training of new officers.

Thereafter, the Department adhered to the 40 percent formula in funding and deployment of officers, in an attempt to fill the many neighborhood beat positions that remained vacant. In March of 2006, the Department obtained approval from the City to devote additional revenue from the general and Measure Y funds in accordance with the 40 percent formula to an "Accelerated Recruitment and Training Program." As a result, more neighborhood beat positions were filled as new officers completed academy training and mandatory field training programs, although Measure Y positions remained unoccupied and Department staffing levels continued to be below authorized strength.

By March of 2008, the City passed Resolution No. 81104 (the resolution) to augment the recruitment and training program with supplementary resources to facilitate the addition of new police officers to the Department force at a higher rate than the loss from attrition. The resolution authorized the City to transfer appropriations in the amount of approximately $7.7 million from the accumulated balance in the Measure Y fund for use in the augmented recruitment and training program. The program approved by the resolution was designed to increase the Department staff and consequently add Measure Y positions. A condition in the resolution specified that to the extent "any Measure Y funds advanced for the recruitment are used for the hiring of non-Measure Y officers, the General Fund shall reimburse the Measure Y Fund the equitable and proportionate costs of the...

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