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The Council FAILED to have the BUDGET ADVISORY REPORT as required and in accordance with the CONSOLIDATED FISCAL POLICY (13279 C.M.S.)

6/30/2017

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New Oakland Police Sexual Misconduct Case Leads to Discovery of Drugs Stashed in Locker

6/30/2017

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Lieutenant allegedly being investigated for losing cocaine, heroin more than decade ago.

June 29, 2017
​by 
Darwin BondGraham and Ali Winston
PictureThe Oakland Police Department's Police Administration Building
According to multiple sources close to the Oakland Police Department, another investigation has been opened into sexual misconduct involving officers. This time, a young officer assigned to a crime-reduction team has been accused of using a room in the downtown Police Administration Building’s basement to have sex with an outside civilian.

However, in the course of investigating this allegation, officers searched part of the basement and found a large amount of illegal drugs in a locker.

Sources (who asked not to be identified because they did not have permission to speak to the media) described the drugs as an "alarming quantity" of cocaine, heroin, and marijuana. One source said "multiple pounds" of drugs were in the locker and estimated a street value of more than $100,000.

A lieutenant assigned to the department’s internal-affairs division is reportedly under investigation for the stash of contraband; the drugs were somehow traced back to the lieutenant. It’s unclear at this time if the seal of the packaging was broken or if anyone had tampered with the drugs.

The cocaine, heroin, and marijuana allegedly were checked out from OPD’s crime lab more than a decade ago, in 2005, for a training exercise by the lieutenant, who was an officer at the time.

Sources didn’t speculate on what happened to the drugs during the past twelve years, or why such a large quantity was permitted to be borrowed — and then left in a locker that apparently wasn’t checked for such a long period of time.

The officer under investigation was later promoted and currently works in internal affairs, the division responsible for probing cop misconduct.

According to sources close to OPD, the allegations constitute at least a level-two violation of Department General Order H-7: “Withdrawing, Viewing and Returning Evidence.” If this violation is upheld it could result in suspensions.

Little is known about the sexual-misconduct case that led to the drug discovery, but OPD's spokesperson Officer Johnna Watson said the discovery of the drugs was actually unrelated.

She wrote in an email that the drugs were found during the cleaning of an office. Watson described the location of the drugs as being inside a "locked cabinet," not a locker. She confirmed there's an investigation into the matter.

The administration building’s basement includes a shooting practice range, which is used as a virtual gun-and-weapons simulator, and also features several other rooms.

This isn't the only headache OPD’s facing: On June 24, Richmond police arrested a young OPD officer, Marcos Gocobachi, and booked him at the Contra Costa County jail in Martinez for domestic violence, according to Lt. Felix Tan, of the Richmond Police Department.

​https://m.eastbayexpress.com/oakland/new-oakland-police-sexual-misconduct-case-leads-to-discovery-of-drugs-stashed-in-locker/Content?oid=7726703



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SWANSON REPORT REVEALS THAT CITY ADMINISTRATION THAT INCLUDES LIBBY SCHAAF, ADMINISTRATOR SABRINA LANDRETH AND ATTORNEY BARBARA PARKER PARTICIPATED IN THE DEFLECTION AND COVER-UP INTO THE INVESTIGATION OF SEXUAL CRIMINAL MISCONDUCT BY MEMBERS OF THE OPD

6/23/2017

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​Official: Oakland Mayor Bungled Police Sex Misconduct Probe

SAN FRANCISCO — From the mayor on down, a court-appointed investigator said Wednesday that Oakland city officials mishandled and downplayed sexual misconduct allegations about the city's police department that turned into a far-reaching scandal.

In a court filing, investigator Ed Swanson put most of the blame for the bungled probe on former police chief Sean Whent, who resigned under pressure last year. Swanson said Whent's disinterest in the case set the tone for the department.

But Swanson also singled out Mayor Libby Schaaf for failing to monitor the case after she vowed dramatic reforms in the police department.

Schaaf declared in 2016 that her job was to run a "police department, not a frat house" after the teenage daughter of a police dispatcher said several officers exploited her while she was working as a prostitute. Swanson credited the mayor with acting quickly when she was first informed of the scandal and a federal judge ordered an in-depth investigation.

Continue reading the main story"But after the investigation concluded, the mayor and city administrator did not do enough to determine why the department had not investigated the case more thoroughly before the court got involved," Swanson wrote. "Although they took the appropriate step of hiring an outside attorney to investigate this issue many months passed with no investigative progress, and there is no evidence city leaders pressed to ensure this troubling and important question was being answered."

Schaaf said at a press conference Wednesday afternoon that she accepts the report's conclusions.

She said a Dec. 2 fire that killed three dozen people in a warehouse and the search for a new police chief distracted from the sex misconduct investigation in December and January.

"We agree that tone comes from the top," said Schaaf, who recently said she'll seek a second 4-year term as mayor in 2018. "That's why we set out to find a new chief."

Schaaf swore in Anne Kirkpatrick as chief on March 1 out of 30 candidates. Kirkpatrick was the second-in-command and in charge of reforming the Chicago Police Department when hired in Oakland.

"It is all repairable," Kirkpatrick said of the report's conclusions.

City administrator Sabrina Landreth said she agreed the investigation took too long to conclude, but she said city officials didn't want to interfere with the criminal prosecutions of the officers.

Four officers were fired and face criminal charges and eight others disciplined.

Swanson was appointed by a federal judge who oversees the troubled department as part of a 2002 settlement of a civil rights lawsuit. Swanson has no authority to order changes in the department, but the judge does. Swanson recommended a number of training reforms and policy changes, including involving the district attorney in internal investigations of officers under criminal suspicion and consulting the city attorney.

The department implemented many court-ordered reforms during Whent's three years as chief and was close to shedding the court oversight when officer Brendan O'Brien killed himself in 2015. O'Brien in his suicide note denied having sex with the victim despite her claims that he did. O'Brien also implicated several officers who he said had sex with the girl.

"It's a pretty devastating report," said lawyer John Burris, who represents the victim and is the lead attorney on the 2002 civil rights case that led to court oversight. "I thought the department was making real progress."

Swanson said Whent appeared disinterested in the case from the start and his attitude set the tone for the rest of the department.

Whent told investigators that he "misread" O'Brien's suicide note and a lieutenant's email message that the case was being sent to internal affairs. Whent said he read the note and the lieutenant's email but did not grasp their importance, an excuse Swanson called "not credible" in his report.

Whent failed to notify the mayor, district attorney and the federal judge about the suicide note and internal affairs investigation. Swanson said it is unclear why Whent downplayed the case.

The chief retired under pressure in June 2016 after news of the scandal emerged. His phone rang unanswered Wednesday after the report was released.

Swanson also said investigators dismissed the victim's claims because she was a prostitute.

Criminal investigators initially closed their probe after a strained, two-hour interview with the victim, who gave muddled and conflicting accounts. During that interview, they watched her delete messages on her phone sent by officers.

Swanson's report also faulted police internal affairs investigators for lackluster work. The victim was interviewed once on the phone. And two officers implicated by the victim were considered witnesses, rather than targets.

One of those officers said he was mentoring the victim to get her out of prostitution, but then admitted he texted her a photograph of his penis.
​
The city paid the victim almost $1 million to settle her legal claims.

IMMEDIATE RELEASE

​June 21, 2017

City of Oakland Supports Findings of Federal Court-appointed Investigation into Police Officer Sexual Misconduct

Picture

Media Contacts:

Karen Boyd
City of Oakland
City Administrator’s Office
(510) 449-4401
KBoyd@oaklandnet.com
​
Oakland, CA — Federal Court-appointed investigator Edward Swanson released the findings today of an extensive investigation into the City of Oakland’s response to allegations of officer sexual misconduct last year. Mr. Swanson is a private attorney who was appointed by United States District Court Judge Thelton Henderson to review the adequacy of the Oakland Police Department’s investigations into potential officer sexual misconduct, what can be learned from how the initial investigations were handled, and whether City leadership responded adequately to the allegations.
 
“Last year’s sexual misconduct scandal rattled public trust in the Oakland Police Department,” stated Oakland Mayor Libby Schaaf. “We are determined to restore that public trust. We will not stop until we’ve rooted out a culture that tolerates misconduct from officers, whether they are in uniform or off duty. Simply put, we will not tolerate this kind of behavior in Oakland.
 
“We appreciate the report from Mr. Swanson and the court, and we are completely prepared to implement all of its recommendations. As an organization, this City is committed to constant self-examination and improvement. That will be true with or without Federal Court supervision.
 
“Most importantly, we now have in place Chief Anne Kirkpatrick, a leader with a track record for culture change, of holding officers accountable, who has the experience and moral character to lead the department into a bright future.”
 
The City of Oakland wholly embraces the findings and recommendations identified in Mr. Swanson’s report as essential to sustaining lasting police reforms and restoring public trust in the Oakland Police Department.
 
City Administrator Sabrina Landreth stated, “We appreciate Mr. Swanson for providing an independent lens and thorough review and analysis of the systems, processes and internal controls that must be in place to strengthen the integrity of police misconduct investigations. I firmly believe that an outside audit of our organization such as the one Mr. Swanson completed provides us with an important opportunity to evaluate the adequacy of our rules and procedures and make necessary changes to ensure we are meeting the highest standards.”
 
The report outlines nine recommendations for improvements to OPD’s investigative process. OPD has already begun to institute new practices and significant process changes designed to ensure more robust review of officer misconduct allegations and provide better and higher-level oversight of criminal and internal affairs investigations.
 
Oakland Police Chief Anne Kirkpatrick stated, "First and foremost, I hold myself accountable. I’m a police officer and have been for 35 years. I will be a steward of the power and authority that you’ve given me.
 
“Along those lines I fully accept this report and appreciate its findings. It has diagnosed a problem, but as Mr. Swanson said, in his own words, it is all repairable. He points to strong leadership, clear procedures, and a commitment on our part to view and treat all victims with care and intention. I commit to you that I can provide that type of leadership. Our past does indeed inform our future. My presence here is all about our future.”
 
Referring to the officers who engaged in misconduct, Chief Kirkpatrick added, “I represent 1,250 members of this department. Twelve people wounded 1,238 members of this department and I am a voice for them. They are hurt by and disappointed in their fellow members, but we are now all about going forward.  I personally apologize when law enforcement fails our citizens and ourselves. I come knowing about our past. I own it. And I will move us forward.
 
“Now, some people will say this as a setback. I don't see it as a setback. I see reports like this as a mirror, a launching pad for the future. We are ready to move forward. And I am proud to be your chief. I do thank Mr. Swanson for this report. We are committed to being the best of the best in law enforcement."
 
 
A video of the news conference can be viewed here.
 
 
 
#  #  #

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The city’s process for selection of developers for city-owned property is not open and transparent.

6/20/2017

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CONCLUSION

​The city’s process for selection of developers for city-owned property is not open and transparent. The real estate exception to the Brown Act does not give the council free reign to discuss policy, project vision, and RFP terms, or the authority to deliberate about and select developers, in private meetings. These matters are intended to be discussed openly in public, not behind closed doors. When deliberations occur in closed sessions, the public and those doing business with the city are given the perception that backroom deals are being made. Key questions are left unanswered for the public. Intended to protect the financial interests and negotiating position of a public agency, the Brown Act’s real estate negotiation exception limits closed-door discussions to providing direction to its negotiator regarding the price and terms of payment. 
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​While the Grand Jury only investigated three recent city development projects, it is concerned that the city’s misuse of closed sessions in discussing development of city property is a systemic problem. Public deliberations are important. The city must provide an environment whereby public participation in developer selection is invited. In addition, developers must believe that they will be treated fairly and equitably, thus promoting a competitive selection process benefiting the city. The city must follow open meeting laws ​to prevent further misuse of closed session meetings and eliminate the inequities in the developer selection process. 

FINDINGS 

Finding 17-1:
The Oakland City Council misapplies the real estate negotiation exception to the openmeeting requirements of the Brown Act and the Oakland Sunshine Ordinance, thereby shielding the deliberative processes – including discussions and debates regarding project vision, project scope, feasibility issues, community benefits, and the ultimate selection of a developer – from public scrutiny. 
Finding 17-2:
The city’s closed session agendas for discussions of the 1911 Telegraph and 12th Street Remainder projects did not comply with disclosure requirements in the Brown Act and the Oakland Sunshine Ordinance. 
Finding 17-3:
The Oakland City Council violates the city’s Sunshine Ordinance by failing to discuss publicly the advisability of selecting particular developers for projects on city-owned property before making final decisions (section 2.20.120(B)) and failing to disclose the parts of closed session discussions that were not confidential (section 2.20.130). 
Finding 17-4:
Unauthorized closed sessions prevent the public from witnessing council deliberations, preclude public input into planning, and restrict public participation in the selection of appropriate developers for city-owned property.  
Finding 17-5:
The city of Oakland unfairly applied the requirements of its RFP for 1911 Telegraph by allowing the successful proposer to wait until after it was chosen to provide required financial information. 
Finding 17-6:
A developer was allowed to change the scope of its proposal for 1911 Telegraph at the last minute. This put the other proposers at a disadvantage, and resulted in the city choosing that developer without the benefits of staff analysis of the new proposal
Finding 17-7:
Oakland City Councilmembers privately discuss projects with developers whose proposals are pending, and the communications are not disclosed publicly before one developer is selected. This compromises public scrutiny of the selection process because citizens have no ability to assess the strength or weakness of private arguments made by developers in support of their proposals. 

RECOMMENDATIONS 

Recommendation 17-1:
The city of Oakland must comply with the Brown Act and city of Oakland Sunshine Ordinance provisions relating to the real estate exception. The city must limit closed session discussions concerning proposed real estate development projects to price and terms of payment, and ensure that deliberations on matters such as project vision, project scope, feasibility issues, community benefits, and selection of a developer are conducted openly, allowing the public to be informed about and comment intelligently upon proposals for use of city-owned property. 
Recommendation 17-2:
The city of Oakland must follow its Sunshine Ordinance by conducting open meetings in which councilmembers discuss publicly the advisability of any proposed disposition of city-owned property before making final decisions. 
Recommendation 17-3:
The city of Oakland must update its training for public officials on open meeting laws to prevent the city from misapplying the real estate negotiation exception. 
Recommendation 17-4:
The city of Oakland must enforce requirements of its RFPs even-handedly to create a level playing field for all proposers, and to allow city staff a full record with which to vet competing proposals. 
Recommendation 17-5:
The city of Oakland must treat developers who respond to an RFP equitably by informing all RFP respondents whether changes to proposals after the submission date are permitted. 
Recommendation 17-6:
The city of Oakland must adopt rules to address private communications between councilmembers and proposing developers before a developer is selected. 

RESPONSES REQUIRED

Oakland City Council:
Findings 17-1 through 17-7
Recommendations 17-1 through 17-6

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Judge Allows Sierra Club and Baykeeper to Intervene in Coal Lawsuit; Denies Motions to Dismiss – No Coal in Oakland

6/12/2017

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Picture

City’s forces bolstered

On Tuesday, June 6, United States District Judge Vince Chhabria granted Sierra Club and San Francisco Baykeeper’s motion to intervene in developer Phil Tagami’s lawsuit against the City of Oakland. The lawsuit challenges the City’s  ban on coal storage and handling at a marine terminal to be located on the City’s West Gateway waterfront property near the foot of the Bay Bridge.  The move granting intervenor status was foreshadowed by comments Judge Chabbria made at a hearing on April 20, but, until Tuesday’s written order, the environmental groups did not know for sure if they would be parties in the lawsuit with the power to take discovery, bring and oppose motions, and participate at trial.
“No Coal in Oakland is encouraged that the City of Oakland will have the support of a gifted team of environmental lawyers representing two of our allies in the struggle to keep coal out of Oakland,” commented Michael Kaufman on behalf of NCIO.
​
Although intervenor status will enable Sierra Club and Baykeeper to participate fully in defending the City against the developer’s claims, the judge’s long-awaited order stated they will not be able to prevent the case from being dismissed if the developer and the City reach a settlement.

​Motions to dismiss denied

Tuesday’s order also denied two separate motions to dismiss claims in the lawsuit, one motion brought by the City and another by Sierra Club and Baykeeper. A motion to dismiss can only be brought at the beginning of a lawsuit.  In it, a defendant argues that, even if all the facts stated in the plaintiff’s complaint are true, the claim is not valid.  The defendant can make legal arguments based on the plaintiff’s version of the facts, but, with few exceptions, cannot introduce facts to contradict the defendant’s claims.​

The City’s motion to dismiss sought dismissal of the developer’s breach of contract claim.  OBOT, Tagami’s company, contends that, by banning coal storage and handling in 2016, the City of Oakland breached its 2013 Development Agreement (DA), which OBOT claims gave it a vested right to build and operate a bulk commodities terminal at the West Gateway site under the regulations as they existed at the time of the agreement.

​Breach of contract

n its motion to dismiss the breach of contract claim, the City argued that, the DA gave OBOT a vested right to develop and operate a bulk commodities terminal at the West Gateway site, but no vested right to operate a coal-handling terminal.  Oakland’s attorneys argued that the right to handle coal at the terminal needed to be “expressly” stated in the agreement,
​
Judge Chhabria called the City’s argument a “strawman” and agreed with the developer that the point is not whether OBOT had an expressly stated right to build a coal terminal but rather that it had a right to build a terminal under the City’s regulations as they existed in 2013, which did not exclude storage and handling of coal.
“If the City wanted to restrict the developer to an approved list of commodities – or to foreclose the handling of a particular commodity such as coal – it should have included language to that effect in the Development Agreement,” Judge Chhabria explained.

The judge’s rejection of the City’s motion does not mean the developer’s breach of contract claim will succeed, but merely that it has survived the City’s first attack. The decision went on to note that “section 3.4.2 of the Development Agreement provides that the City may impose a new ordinance if failing to do so would place neighbors of the development ‘in a condition substantially dangerous to their health or safety.’”

Before the City adopted the ban on coal, it followed the provisions of section 3.4.2 which required it to hold a public hearing and gather substantial evidence to support the finding of a risk to health or safety.

The City held an extensive public hearing that began with one of the longest City Council meetings in history on September 21, 2015 and ended nine months later with a final hearing on June 27, 2016.  During the course of its inquiry into the health and safety risks involved in the transport and handling of coal in Oakland, the City received thousands of pages of scientific reports, comment letters, and other documents from advocates favoring or opposing coal.

The developer contends that the City’s process was a “sham” and the evidence against coal does not meet the standard set forth in the DA. Judge Chhabria did not rule on the merits of these assertions, but rather ruled that “whether this ‘health and safety’ exception applies here is a question that can’t be answered on a motion to dismiss” which looks only at whether the lawsuit might succeed if the facts in the complaint are all true.

Judge Chhabria explained that “both the ‘substantially dangerous’ standard and the City’s satisfaction of its procedural obligations are matters that call for factual development.”  Thus, the contract claim will be open for discovery (including depositions, document requests, and interrogatories) and will be resolved at summary judgment or trial, which is set for January 16, 2018.  A motion for summary judgment avoids trial on some or all of the claims in a lawsuit.  Unlike a motion to dismiss, a summary judgment motion can present factual evidence including testimony and documents obtained through discovery as well as declarations.  Either side can bring a motion for summary judgment on some or all of the claims in the case prior to trial.

Commerce Clause claim

The judge also rejected Sierra Club and San Francisco Baykeeper’s motion to dismiss the developer’s claim that the City’s ban on coal storage and handling violates the Commerce Clause of the United States Constitution either by discriminating against out-of-state economic interests in favor of in-state interests or by posing an “undue burden” on interstate commerce.

The judge held that OBOT’s “undue burden” theory was sufficiently well supported in its complaint to defer any decision on it at least until summary judgment at which point the City and intervenors will be able to submit facts to undermine it. The judge acknowledged that the discrimination claim was “substantially weaker, both conceptually and in terms of the facts alleged to support it,” but saw no practical value in striking it down as discovery into the different versions of the Commerce Clause claim would likely overlap.

Again, as with the rejection of the City’s motion to dismiss, the court’s denial of Sierra Club and Baykeeper’s motion is not a decision on the merits. In order to prevail, the developer will have to prove its case.

The judge’s comments on the interstate commerce discrimination theory suggests it is unlikely to survive summary judgment. Although Oakland’s effort to maintain a clean and healthy environment in West Oakland and prevent the burning of massive amounts of coal overseas may impact Utah’s coal industry, the developer has not explained how this shows an intent to discriminate against businesses from Utah in favor of local businesses. The complaint does not identify any in-state economic interests that will benefit from the ordinance.​

In order to prevail on the “undue burden” theory, the developer will have to show that the burden imposed on interstate commerce posed by the ban on coal storage and handling is “clearly excessive” in relation to the purported local health and safety benefits.  Generally, courts will uphold even burdensome regulations enacted in the interest of local health and safety so long as they are not pretextual or flimsy.

Current situation

According to NCIO’s sources, the City and developer are pursuing ongoing negotiations at the same time that the litigation is moving into a phase of intensive discovery in preparation for trial.

The environmental groups are represented by Colin O’Brien, Adrienne Bloch, and Heather M. Lewis of Earthjustice.  Sierra Club is also represented by Jessica Yarnall Loarie, Joanne Spalding, and Daniel P. Selmi of Sierra Club.

The City of Oakland is represented City attorneys Barbara J. Parker, Otis McGee Jr., and Colin Troy Bowen and by Kevin D. Siegel, Gregory R. Aker, and Christopher M. Long of Burke Williams & Sorensen LLP.​

OBOT is represented by Robert P. Feldman, David Myre, and Meredith M. Shaw of Quinn Emmanuel Urquhart & Sullivan LLP.
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RECORDS REQUEST FOR INFORMATION #17697 HAS TAKEN MORE THAN EIGHT (8) MONTHS AND THE CITY HAS YET TO PROVIDE THE REQUESTED INFORMATION TO DATE (JUNE1, 2017).  THE STATUTORY RESPONSE TIME IS TEN DAYS.  WHAT IS THE CITY HIDING?

6/5/2017

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    Gene Hazzard

    Don't Be Envious of Evil Men
    1Do not be envious of evil men, Nor desire to be with them; 2For their minds devise violence, And their lips talk of trouble.…

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