News from Oakland City Attorney
Barbara J. Parker
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Highlights:
- City Attorney files opening brief in City’s appeal of trial court’s judgment enjoining coal ban at the former Oakland Army Base
- Oakland Fights Back: federal courts block more of Trump's unconstitutional, discriminatory and harmful policies
- City prevails in former police officers’ lawsuit seeking millions of additional dollars in retirement benefits
- City Attorney wins lawsuit filed by terminated security firm
- City Attorney in the Community
As always, we look forward to your questions and comments about the work we are doing on behalf of the people of Oakland.
Barbara J. Parker
Oakland City Attorney
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City Attorney files opening brief
in City’s appeal of trial court’s judgment enjoining coal ban at the former Oakland Army Base
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In December 2018, we filed the City’s opening appellate brief in
OBOT v. City of Oakland
asking the United States Court of Appeals for the Ninth Circuit to (1) reverse the trial court’s judgment enjoining the City’s coal ban at the former Oakland Army Base against developer Oakland Bulk and Oversized Terminal, LLC (“OBOT”) and (2) uphold the City’s ban on the handing and storage of the coal at the former Oakland Army Base.
Background
In 2013, the City of Oakland entered into a development agreement with Plaintiff-Appellee Oakland Bulk and Oversized Terminal, LLC. The agreement granted OBOT rights to develop a public land parcel adjacent to the Port of Oakland and the San Francisco Bay Bridge.
Under the development
agreement, the City retained its authority to regulate OBOT’s development to protect the health and safety of Oakland residents. The agreement expressly authorized the City to adopt new regulations and apply them to OBOT’s development, if the “City determines based on substantial evidence and after a public hearing that a failure to do so would place existing or future occupants or users of the Project, adjacent neighbors, or any portion thereof, or all of them, in a condition substantially dangerous to their health or safety.”
In 2015, the City learned that OBOT was seeking to develop a coal terminal on the site and conducted a study of the health and safety risks associated with handling coal at the terminal. After a public hearing, the Council exercised its authority to adopt legislation banning a coal terminal at the site based on evidence before the Council that revealed serious health and safety risks posed by OBOT’s plans. Evidence was presented to the City Council that the proposed terminal would increase Oakland residents’ exposure to coal dust, which contains toxins like mercury, arsenic, and lead and is made up in part of fine particulate matter that is associated with cardiovascular and respiratory disease and premature death. Evidence before the Council further demonstrated that the terminal’s operations likely would cause levels of fine particulate matter in excess of governmental air quality thresholds.
In addition the evidence before the Council revealed the serious safety risks that a coal fire at the terminal would pose, and that there have been recent coal fires at several modern shipping terminals around the world. The harm from even one combustion event during the 66-year term of OBOT’s lease to operate the terminal would prove catastrophic for Oakland residents, because a coal fire would release substantial amounts of the harmful toxins and particulates present in coal dust. One expert stated that the consequences of a terminal fire would be “dire,” likely exposing hundreds of thousands of people to carcinogenic emissions and toxic chemicals. It also is difficult to extinguish coal fires and they are extremely dangerous to first responders.
After considering the evidence that was provided to the Council and holding a public hearing, the Council adopted an ordinance that prohibits the storage and handling of coal in Oakland and a resolution applying that ordinance to OBOT, based on the Council’s determination that failure to do so would result in substantial danger.
In May 2018 the federal district court (“trial court”) entered judgment in favor of Plaintiff, OBOT, invalidating the City Council’s resolution and prohibiting the City from imposing a coal ban against OBOT. The City timely filed an appeal to the United States Court of Appeals for the Ninth Circuit and in December 2018, we filed the City’s opening appellate brief.
The City Council has a responsibility and the legal right to act to protect the health and safety of our City’s residents. In this case, the evidence from independent scientists and public health professionals is clear. They all agree that a massive coal terminal on the Oakland waterfront is a clear and demonstrable danger to health, lives and property of Oakland residents.
This threat is especially critical in West Oakland, a neighborhood that has been ravaged by environmental injustice and high levels of pollution in the air, water and soil for at least half a century. To intentionally further this injustice is shameful.
Last Fall, the City terminated OBOT’s 66-year lease of the property because OBOT failed to comply with its obligations under the agreement to commence the project in accordance with the agreement’s timelines. OBOT has filed a separate lawsuit in state court challenging the lease termination. I will provide updates regarding the appeal and the new state court lawsuit in future newsletters.
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Oakland Fights Back: Federal Courts Block More of Trump's Unconstitutional, Discriminatory and Harmful Policies
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2019 commenced with a series of court victories regarding the federal administration's unconstitutional and discriminatory policies.
In January, a federal judge in Philadelphia issued a nationwide injunction preventing the Trump administration from denying women access to contraceptives under the Affordable Care Act.
In March, a federal judge in Oakland in favor of California and other states that filed a separate lawsuit to block Trump's attempt to roll back women's access to contraceptives. Oakland, Santa Clara County and 15 other cities, counties and local agencies across the country filed an
amicus brief
in that case asking the court to uphold a preliminary injunction blocking Trump's action.
In 2017, the Trump administration issued sweeping new rules that would significantly expand exemptions to the Affordable Care Act’s birth control requirement. The new rules, which were scheduled to take effect this month, would allow any employer to refuse to provide contraceptive coverage if the employer claims to have a “religious” or “moral” objection to contraceptives.
Of course, there is nothing "moral" about denying basic health care coverage to women. Trump's attempt to roll back access to contraceptives is a stark reminder of his disregard for the wellbeing of women and Americans in general, for the law and for fundamental constitutional principles such as the separation of church and state. Trump's rule change would undermine the Affordable Care Act’s guarantee of cost-free insurance coverage for birth control. Many women would lose coverage, whether or not they need contraceptives for health reasons other than birth control.
According to the New York Times:
The Trump administration said the contraceptive coverage mandate imposed a 'substantial burden' on the exercise of religion by certain employers. The new rules ... fulfilled a campaign pledge by Mr. Trump, who said employers should not be "bullied by the federal government because of their religious beliefs."
This legal argument is pure poppy cock. The U.S. Supreme Court has ruled repeatedly that religious beliefs are not a license to discriminate. Like many of Trump's key policies, rolling back access to contraception is not just unconstitutional, it is also actively harmful to millions of people, and serves no purpose other than placing the interests of our country's most cynical corporations and most sanctimonious religious extremists above the health and safety of American women and families.
In another March victory,
the United States District Court for the Northern District of California ruled in favor of the City of Oakland, the State of California and other plaintiffs, blocking the Trump administration’s plan to add a question on citizenship status to the 2020 Census.
U.S. District Court Judge Richard Seeborg agreed that including a citizenship question would violate both the U.S. Constitution and the Administrative Procedure Act, which prohibits “arbitrary and capricious” action by a federal agency.
Experts, including the U.S. Census Bureau, have opined that including a citizenship question on the Census would discourage noncitizens, their family members and others from participating in the Census, and would significantly undercount residents of states like California with large immigrant populations.
"In short, the inclusion of the citizenship question on the 2020 Census threatens the very foundation of our democratic system,” Judge Seeborg declared in his ruling.
California Attorney General Xavier Becerra filed the lawsuit on March 26, 2018. Los Angeles County, the Los Angeles Unified School District and the cities of Oakland, Fremont, Stockton, Los Angeles and Long Beach joined as plaintiffs.
Judge Seeborg also ruled against the inclusion of a citizenship question in a separate lawsuit that the City of San Jose and the Black Alliance for Just Immigration filed. And in January, a judge in the U.S. District Court for the Southern District of New York also ruled against the Trump administration in a lawsuit filed by the State of New York, at least 18 other states, the U.S. Conference of Mayors and a number of local jurisdictions.
The Constitution mandates that the federal government conduct a census every ten years to determine an accurate population count of individuals – regardless of citizenship status.
In March 2018, U.S. Commerce Secretary Wilbur Ross announced that the 2020 Census will include a citizenship question. The national census has not included a citizenship question since 1950.
In the New York case, Judge Jesse Furman ruled in January that Ross violated
"a veritable smorgasbord"
of federal rules by ordering that the 2020 census include a citizenship question. Judge Furman also lambasted Ross and his deputies for mischaracterizing evidence, lying under oath and failing to provide a reasonable explanation for the decision to add the question.
In the California case, Judge Seeborg wrote that including a citizenship question would violate the U.S. Constitution in that it “is fundamentally counterproductive to the goal of obtaining accurate citizenship data about the public.”
The Court declared: “Secretary Ross’s failure to investigate and consider the likely effects of the citizenship question on the accuracy of the Census Bureau’s enumeration—and therefore on congressional apportionment and the allocation of federal funding—was an abdication of his duty to consider all relevant factors before making his decision. Therefore, the Secretary’s decision to prioritize the inclusion of the citizenship question on the census over
any harm
that might result was necessarily arbitrary and capricious.”
Almost 11 million immigrants are living in the U.S. without legal permission (the lowest level since 2003), according to the Center for Migration Studies. The U.S. Census Bureau estimates that at least 630,000 households would refuse to complete census forms if they include a citizenship question.
It is no secret that the Trump administration is dead set on reducing voting power and federal funding for states like California and cities like Oakland whose residents overwhelmingly did not cast their votes for the current occupant of the White House. The addition of a citizenship question clearly is a pretext for achieving that goal. Faced with the loss of the popular vote and a country that has an increasing number of immigrants and African Americans, Latinos, Asians and other people of color, the question is yet another attempt by an outlaw administration to undercount and disenfranchise diverse communities like Oakland and California.
Our lawsuit and the New York lawsuit likely are headed to the U.S. Supreme Court. I will keep you updated on our progress.
Thank you to our
Affirmative Litigation, Innovation & Enforcement Division
for taking the lead on these important legal actions to protect the rights of Oaklanders.
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City prevails in
retired police officers’ lawsuit seeking millions of additional dollars in retirement benefits
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The California Court of Appeal has ruled in favor of the City in a case alleging that certain retired police officers who are members of the Oakland Police and Fire Retirement System (“PFRS”) are entitled to millions of dollars in retirement benefits that are not provided by the pension plan.
Retired Oakland Police Officers Association et al. v. Oakland Police and Fire Retirement System and City of Oakland
, Alameda County Superior Court Case No. RG14753080; Court of Appeal, First Appellate District Case No. A148987
On February 25
th
, the
Court of Appeal reversed
the Alameda County Superior Court’s 2016 decision that certain retired police officers who are members of PFRS qualified for and were entitled to receive additional pension payments related to Master Police Officer – Terrorism Advisor pay. Retired police officers and firefighters who were hired from 1951 through June 30, 1976 are members of PFRS.
PFRS retirement benefits are not based on the compensation a police officer or firefighter earned during their employment. Rather, they receive a percentage of the compensation “attached to the rank,” i.e., paid to current police officers based on their rank. Examples of compensation based on rank are: uniform allowance, salary, and holiday pay. Thus, as the compensation based on rank increases for current police officers, PFRS retirees’ pensions increase. A police officer who retired in 1980 would receive a retirement benefit based on the salary attached to the rank, i.e. paid to police officers employed by the City when he/she retired. Today, that same retiree would receive a percentage of the 2019 salary that current officers are paid.
The pensioners claimed that Master Police Officer – Terrorism Advisor premium pay was attached to, i.e. based on rank, and that they and hundreds of similarly situated retired officers were entitled to additional retirement compensation based on premium pay that the City paid to police officers who qualified for that premium pay.
Master Police Officer – Terrorism Advisor premium pay was in effect for a period of four years. The premium was paid to police officers who (1) completed 20 years of service in the Oakland Police Department, (2) maintained a “fully effective overall performance appraisal,” (3) completed an approved eight-hour anti-terrorism/law enforcement response course, and (4) were assigned to the Police Department’s Patrol Division. Petitioners argued that they satisfied these four criteria (or would have satisfied all four criteria by completing the training course) and thus were entitled to additional retirement compensation. Based on their own estimate, the retired officers were owed additional pension income of approximately $1.68 to $6.55 million.
In 2016, the Alameda County Superior Court ruled in favor of the Petitioners that PFRS must pay the additional pension income to potentially hundreds of additional pensioners.
The City appealed the trial court’s decision, and in February, the Court of Appeal ruled in favor of the City and PFRS. The Court of Appeal held that the City Charter prohibited the payment of additional compensation based on the Master Police Officer –Terrorism Advisor premium pay because it is not attached to rank. Rather, the Court reasoned that it was paid only to officers who satisfied all four criteria.
It is critical that the City honor its obligations under the PFRS pension plan, which provides retirees pensions that allow them the wherewithal to provide for themselves in retirement. However, it is important that the City not pay retirees pension payments that they are not entitled to under the pension plan. Such overpayments may impact the City’s ability to pay for roads and sidewalk repairs, parks, libraries and other municipal services.
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City Attorney wins lawsuit filed by terminated security firm
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Just before the end of 2018, the Alameda County Superior Court
ruled in favor of the City
in a lawsuit filed by Cypress Private Security, a firm that used to provide security guard services for City buildings, including City Hall.
Cypress Private Security v. City of Oakland
, Alameda County Superior Court Case No. RG18919756
The City contracted with Cypress in 2013. When Cypress’ contract expired in 2016, the City issued an RFP (request for proposals) for a new $2.5 million security contract. The City continued to contract with Cypress on a month-to-month basis while it reviewed proposals. In July 2018, the City Council awarded the security contract to a different firm (ABC Security), and after executing the new contract, the City terminated its month-to-month contract with Cypress.
In September 2018 Cypress sued the City alleging that (1) the City failed to follow the RFP’s guidelines for evaluating and scoring the written proposals and (2) notice of the item to approve a contract with ABC Security on the Council’s agenda in July 2018 was untimely.
Cypress immediately sought a temporary restraining order to prevent the City from executing the new contract with ABC Security. The Superior Court denied Cypress’s request for a temporary restraining order, and after a hearing on the merits of the petition for writ of mandamus in December 2018, the Court issued an order denying Cypress’s writ of mandate and affirming the City’s RFP process.
Thank you to Supervising
Deputy City Attorney Jamilah Jefferson
for her hard work and excellent defense of the City in this case.
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City Attorney in the Community
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Oakland Public Schools’ Fifth Annual African American Read-In
In February, I had the distinct honor and pleasure of participating in the Fifth Annual African American Read-In Week at
Garfield Elementary School
. The Oakland Public Education Fund organizes the Read-In in the Oakland public schools each year as a tribute to Black History Month.
My experience was heartwarming and uplifting. But, this year’s Black History Month was a stark reminder of how far we still have to go as a country to root out institutional racism, implicit bias and bigotry toward African Americans.
In February, the President’s personal attorney testified to Congress that the President is a racist who said that Black people were “too stupid” to vote for him. Of course, we already knew that Trump is a racist. Racism has been one of his defining character traits throughout his public life, and it was a central theme of his campaign. But it nevertheless is infuriating and unsettling to hear this accusation about a President by a (former) close confidant.
Also in February, two of the top three officials in the state of Virginia admitted to participating in the shameful, racist American “tradition” of blackface, and a white Democratic Central Committee delegate in Maryland admitted that she used “the n-word” in casual conversation. All three of these officials remain in office.
The list goes on. Tragically, we could make a similar list almost any other month of the year.
White supremacy is alive and well as a direct legacy of slavery, segregation and Jim Crow, from the blunt, open racism of Trump and his enablers and cohorts to all of the more insidious ways that our country remains a fundamentally unequal nation that gives lip service to equality and justice, while maintaining what in essence amounts to a caste system relegating African Americans to the bottom tier.
Examples: One recent study shows Black workers earn about 65% on average compared to their white counterparts, and the wage gap between white and Black men is as great today as it was in the 1950s. Less than one percent of Fortune 500 companies have Black CEOs. African Americans don’t commit crimes at a higher rate than whites, but are incarcerated at nearly six times the rate of whites. African Americans serve virtually as much time in prison for non-violent drug offenses (58.7 months) as whites do for violent offenses (61.7 months). Sentences are harsher for the same crimes. The death penalty is applied far more aggressively to African American defendants and the numbers of erroneously convicted defendants are woeful. If the current trend continues, one in three Black men born today will be incarcerated at some point in their lives.
This year’s Black History Month reminded me of Coretta Scott King’s insightful quote that “struggle is a never ending process, freedom is never really won.” We must continue the fight each and every day. But we also should celebrate some progress.
In February, Stacey Abrams became the first African American woman to deliver the official response to the President’s state of the union speech. Senator Kamala Harris is a strong contender for the Democratic nomination. And many of Trump’s most openly racist policies, such as his
attempt to dismantle core civil rights protections
in the federal Fair Housing Act, are facing aggressive and successful court challenges. My spirits also are buoyed by the amazing organizing of the Black Lives Matter movement, which has placed discrimination and racism on center stage so that we can confront it, and by the fight for reparations, which has been renewed and is part of serious debate.
And my spirit soared as I visited an Oakland public school where African American children and other children of color are thriving, expressing their curiosity, and learning to be critical thinkers and leaders. I enjoyed having the opportunity to read a children’s book about the life of Muhammed Ali to second graders in the class of teacher
Malia Tayabas-Kim
and to third graders in the class of teacher
Ruanna Owens
. Garfield is a cozy and nurturing school, and the students were engaged, imaginative and full of positive energy.
Thank you so much to the Oakland Public Education Fund for organizing this wonderful event to commemorate Black History Month, and to Ms. Tayabas-Kim, Ms. Owens and the principal and staff of Garfield Elementary for hosting. For anyone who wants to get involved and help out in the Oakland schools, the Oakland Public Education Fund is a good place to start. For more information, go to:
https://www.oaklandedfund.org/
.
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Honoring a Tenant’s Fight for Justice
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On February 1, I was honored to meet with
Jahahara Alkebulan-Ma’at
, a tenant who recently secured a major settlement in a lawsuit that my Office filed against his extraordinarily abusive landlords.
Mr. Alkebulan-Ma’at was the victim of outrageous harassment and threats by the landlords,
Eugene Gorelik
and
Jessica Sawczuk
, who gained local notoriety in 2016 when they demolished Mr. Alkebulan-Ma’at’s home while he was still living in it.
Mr. Alkebulan-Ma’at had lived in the home on MacArthur Boulevard near Lake Merritt for 22 years before Mr. Gorelik locked Mr. Alkebulan-Ma’at out of the house, shut off the utilities and eventually began demolition of the home (while Mr. Alkebulan-Ma’at’s possessions and medication were still inside). As I said at the time, if this case was used as a hypothetical in law school, no one would believe it because it would be so preposterous.
In November 2018, we secured a settlement with the defendants' insurance carrier for $750,000: Alkebulan-Ma’at received $675,000, and the City received $75,000 to support civil rights litigation and other affirmative litigation matters. On February 1, I met with Mr. Alkebulan-Ma’at and attorneys from the Eviction Defense Center and the Law Offices of
Andrew Wolff
who worked on his case, and I presented a
letter of recognition
to
Mr. Alkebulan-Ma’at
thanking him for standing up for his rights, and for the rights of all Oakland tenants.
Photo from left to right:
Front row: Attorney Wortham Briscoe (Law Offices of Andrew Wolff), City Attorney Parker, Eviction Defense Center Executive Director Anne Omura, Eviction Defense Center Paralegal Amanda Prieto-Lara & Jamie Smith, Executive Assistant to the City Attorney
Second row: Attorney Andrew Wolff (Law Offices of Andrew Wolff), Chief Assistant City Attorney Maria Bee, Eviction Defense Center Attorney Lauren Russo, Eviction Defense Center Attorney Jodi-Kaye Haber & Neighborhood Law Corps Attorney Scott Hugo
Back row: Eviction Defense Center Attorney Peter Selawsky, Eviction Defense Center Managing Attorney Joe Colangelo, Jahahara Alkebulan-Ma’at & Eviction Defense Center Case Manager Eric Magana
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Oakland Deputy City Attorney Pelayo A. Llamas, Jr. appointed as Alameda County Court Commissioner
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It was with mixed emotions that I bid farewell to Senior Deputy City Attorney
Pelayo Llamas
, who was appointed as Commissioner for the Alameda County Superior Court. Commissioner Llamas was sworn in as Commissioner on March 4 at the Renee C. Davidson Courthouse.
I am very pleased that the Superior Court has recognized Commissioner Llamas’ diligence and his public service and his stellar character and values. However, he will be sorely missed in the City Attorney’s Office, where he served for more than 18 years. During his tenure, he accepted and volunteered to take on new and challenging practice areas as a litigator and as an advice attorney, and his work ethic and outlook were characterized by consummate professionalism, enthusiasm, a high level of integrity and an upbeat demeanor.
Court commissioners perform judicial functions to assist the court in performing its constitutional and statutory duties, with primary responsibility for presiding over a daily court calendar, including serving as a temporary judge.
Commissioner Llamas began his career in our Office in 1999 as a member of the former Community Prosecution/Public Safety & Code Enforcement Team. In that position, he prosecuted Beat Feet Vehicle Forfeiture Trials, filed nuisance abatement lawsuits and prosecuted administrative hearings for the Deemed Approved Alcohol and Deemed Approved Hotel/Motel program.
He also served as Assistant Departmental Counsel for the Oakland Police Department, providing advice on OPD policies and procedures, and was the lead attorney on a complex gang injunction lawsuit against a North Oakland gang that was responsible for homicides and many other crimes in the neighborhood. He drafted legislation including Oakland’s ban on the use of “bull hooks” on elephants, and handled a wide range of cases as a member of the Litigation Division for five years, representing the City in state and federal courts in cases.
From 2010 to 2012, Commissioner Llamas worked in private practice and as a special investigator for the San Francisco Office of Police Accountability. In 2012, he returned to the City Attorney’s Office as a member of the General Government & Finance Unit. His responsibilities include but were not limited to serving as counsel to the Police and Fire Retirement System Board and staff, a complex and challenging assignment that he volunteered to assume.
I know Commissioner Llamas will continue to be a model public servant as Court Commissioner because he will bring his professionalism, integrity, high ethical standards and his commitment to justice to the Alameda County Superior Court. Please join me in congratulating Commissioner Llamas on his appointment and thanking him for his nearly two decades of service to the City and the people of Oakland.
Photo from left to right: Supervising Deputy City Attorney Jamilah Jefferson, Chief of Staff Alex Katz, City Attorney Barbara J. Parker, Deputy City Attorney Eli Ferran, Alameda County Superior Court Commissioner Pelayo Llamas, Deputy City Attorney Andrew Huang, Chief Assistant City Attorney Maria Bee, Chief Assistant City Attorney Doryanna Moreno, Special Counsel David Pereda and Executive Assistant to the City Attorney Jamie Smith
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On February 14, the City of Oakland joined other cities and groups across the country to file an amicus brief in the case
California v. EPA
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The 2018 lawsuit challenges the Trump administration’s attempt to weaken clean car standards established under the Obama administration. Signatories to the amicus brief include Oakland, Baltimore, Los Angeles and Minneapolis, along with the U.S. Conference of Mayors and the National League of Cities. The local government signatories are home to more than 22 million people across the country. The amicus argues that the government’s decision to allow more greenhouse gas emissions was illegal because the decision was made without adequate opportunity for public input, and the federal government reached erroneous conclusions about the feasibility of meeting existing clean car standards. This case is yet another example of the Trump administration acting against the interests of all Americans. Facing evidence that the world has reached a tipping point when it comes to global warming, and that the only way to avoid catastrophe is to immediately reverse the upward trend of greenhouse gas emissions, the Trump administration makes every effort to increase greenhouse gas emissions. Again, Trump puts the short term interests of the fossil fuel industry ahead of the well-being and survival of our country. Trump’s actions at this moment in history will be remembered as what they are: a shameful surrender in the fight to save our planet.
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