Volume 22, Issue 1 | Winter 2021
News from Oakland City Attorney
Barbara J. Parker
BJP new

  • City Attorney Wins Crucial Appeal Upholding the City’s Right to Enact Measure AA, a 2018 Parcel Tax that Oakland Voters Passed to Fund More Than $30 Million in Early Childhood Education and College Readiness Programs for Oakland Youth
  • In a Crucial Victory for Tenants, City Attorney Settles Lawsuit Against Main Defendants, Securing A Court Appointed Receiver to Operate an Independent Living Facility that Exploited and Subjected Elderly and Disabled Tenants to Inhumane Living Conditions 
  • Joining National Coalition of Local Governments, City Attorney Speaks Out Against Texas’ Effort to Destroy the DACA Program
  • City Attorney Settles Major Recycling Case Benefitting Oakland Ratepayers

Dear Friends and Fellow Oaklanders:

City Hall remains closed during California's statewide Shelter-in-Place order to slow the spread of coronavirus (COVID-19) and preserve critical health care capacity. For up-to-date information and resources, see the Alameda County Public Health Department website or the City's COVID-19 information page.

I hope you are staying healthy and safe during these unsettling times.

As always, I invite your comments and thoughts about the newsletter and our Office’s work.
City Attorney Wins Crucial Appeal Upholding the City’s Right to Enact Measure AA, a 2018 Parcel Tax that Oakland Voters Passed to Fund More Than $30 Million in Early Childhood Education and College Readiness Programs for Oakland Youth

In December 2021, the California Court of Appeal (First Appellate District) issued a decision in Jobs & Housing Coalition et al. v. City of Oakland, reversing the trial court’s decision and ruling in favor of the City of Oakland. The case challenged the legality of the City’s process for enacting Measure AA, a parcel tax of $198 per parcel for 30 years that is projected to yield more than $30 million to fund education services and career readiness programs for Oakland youth from pre-Kindergarten through college. The challengers sought to invalidate the measure as an illegal special tax because it did not receive two thirds of the votes cast. They won based on that theory in the trial court, but the Court of Appeal reversed that decision.
This case stems from an effort years ago by Oakland residents to add “The Children’s Initiative of 2018” to the City’s Charter. Specifically, the residents proposed approving a parcel tax to fund both early childhood education and college readiness. As required by the State Elections Code and City Charter, the City of Oakland prepared the ballot materials describing Measure AA, and 62% of Oakland voters approved the measure. The City Council certified passage of the measure when it declared the results of the election.
The challengers, including property owners who would be subject to the parcel tax, sought to have the courts overturn the will of the voters and the declaration of the duly elected City Council. They claimed the process was problematic in a number of ways, including that it violated the voting threshold required under California Propositions 13 and 218 and that differences between the ballot materials and the final voting outcome violated due process.
The appellate court rejected each of the challengers’ arguments, ruling that (1) voter-sponsored special taxes, such as Measure AA, may be enacted by simple-majority approval; and (2) Measure AA’s status as a parcel tax did not subject it to a higher two thirds vote threshold.
The Court further held that the ballot materials’ statement that a two thirds vote was required to pass the measure did not change the vote threshold. Enacting Measure AA on these facts, the Court held, “did not violate due process or amount to a fraud on voters.” The Court further held, as a matter of law, that the ballot pamphlet drafted by the City Attorney was accurate and thorough in its description of the proposed law, and the statements regarding the vote threshold were too ancillary to trigger due-process concerns. 
The Court also acknowledged the legal uncertainty that existed until recently about whether the supermajority requirement applied to voter-sponsored special taxes, noting the differing approaches taken by other California cities such as San Francisco, Fresno, and San Diego. Given that historical context, the Court could not “conclude that it was fundamentally unfair for Oakland officials to express in the 2018 ballot materials that Measure AA would require two-third of the vote to pass, and subsequently take a different position.” 
In addition, the Court agreed with the City’s arguments that the challengers had not “sufficiently alleged fraud by the City,” and that the use of that terminology from an earlier decision was "undefined and unhelpful, language, and is distinguishable.” 
This appellate decision vindicated the City of Oakland’s position at every turn. The City’s process to enact Measure AA was lawful and fair. As with any citizens’ initiative, this effort to fund youth services was placed on the ballot at Oaklanders’ request, described in language approved by the City, voted on by our residents, and passed.
In a Crucial Victory for Tenants, City Attorney Settles Lawsuit Against Main Defendants, After Securing A Court Appointed Receiver to Operate an Independent Living Facility that Exploited and Subjected Elderly and Disabled Tenants to Inhumane Living Conditions 

In late 2021, the City Attorney’s Office settled the key claims against the main defendants in the lawsuit known as People v. Dario, securing a victory for the low-income, disabled tenants whose lives were upended by the defendants’ illegal and inhumane business practices. This settlement comes out of the August 2020 emergency tenant protection lawsuit and request for a restraining order we filed against the owners and operators of an Independent Living Facility for exploiting and threatening their elderly and disabled tenants during the COVID-19 pandemic.
Independent Living Facilities are virtually unregulated lodging for adults who need help with daily responsibilities like meal preparation and housekeeping. Although these types of facilities have been the subject of a troubling Alameda County Grand Jury report, they continue to operate without adequate oversight, and can become opportunities for unscrupulous actors to take advantage of people in need of care. Oakside Independent Living, the target of this lawsuit, was one such Independent Living Facility, located at 6115 International Boulevard in East Oakland.
Defendants Lori Dario, Jeanie Dominick, and Kimberly Shephard operated Oakside, and subjected their elderly and disabled tenants to unsafe and unhealthy conditions at the facility, including severe infestations of bed bugs, cockroaches, and rats. Defendants also rented out $900-a-month converted storage spaces too small to stand up straight in as “units,” as if they were fit for human habitation. Tenants who complained of poor treatment or conditions were threatened with transfer to Christopher’s Care Home, another Independent Living Facility managed by Defendant Lori Dario. Defendants also used illegal “self-help” eviction methods, such as changing the locks, to force tenants out with little to no notice.
Thanks to my office’s quick action, the court transferred operation of the facility to a court-appointed receiver in late 2020. Since then, my office has negotiated settlements with the key operator and the owner of the facility, including permanent injunctions (ongoing court orders) that prevent the conditions they created from recurring, require them to follow all applicable local and state laws protecting tenants, prevent retaliation against any past and future tenants, and require the manager of the Independent Living Facility to exit that area of business altogether.

This case, People v. Dario, et. al. was filed by the Neighborhood Law Corps and City Attorney Parker’s Housing Justice Initiative. Oakland City Attorney Barbara J. Parker launched the Housing Justice Initiative to significantly expand and prioritize work protecting tenants in Oakland’s diverse neighborhoods and holding abusive landlords accountable.
Joining National Coalition of Local Governments, City Attorney Speaks Out Against Texas’ Effort to Destroy the Deferred Action for Childhood Arrivals ("DACA") Program

The City Attorney’s core work is to provide legal counsel to the City of Oakland, its employees, officers, agencies, boards, and commissions through drafting laws and policies, contracts and other legal documents requested by city officials and departments; reviewing city contracts; and representing the city and its employees in litigation matters.
But legal advocacy comes in many forms, and one of the ways the City Attorney’s Office has been advocating for the people of Oakland is through a growing and vibrant amicus brief practice. Amicus, or “friend of the court,” briefs, are opportunities for individuals and entities not directly involved in litigation to nonetheless present their positions and perspectives to a court. Amicus briefs can be extremely important: they can help a court understand the gravity of the issue before them, point out the possibility of perverse or unanticipated consequences of a court’s decision, and/or help educate a court on an unusual or tricky issue. And amicus briefs can be extremely influential: courts sometimes adopt their reasoning rather than the reasoning of any party before them, or use what they learn from amici to frame their decision.
In late 2021, the City Attorney’s Office joined with sister cities and counties to defend the Deferred Action for Childhood Arrivals (DACA) program from attack by the State of Texas. The brief we joined highlights how DACA affords recipients the building blocks of a successful life, and recipients in turn have made our communities safer and more prosperous. This coalition also argued that, contrary to Texas’ assertions, recipients of DACA obtain work authorization through valid laws and regulations independent of DACA. Immigrants, including DACA recipients, are vital, full members of our Oakland community and of communities around the country. I am proud to join national efforts to protect programs like DACA from attack.
City Attorney Settles Major Recycling Case Benefitting Oakland Ratepayers

In December 2021, the Oakland City Council approved settlement of the City’s lawsuit against California Waste Solutions, Inc. (“CWS”) after years of litigation to recover for Oakland ratepayers approximately $6 million in overcharges for bringing recycling carts at multi-family buildings out to the curb (“backyard service”). The settlement requires that CWS refund approximately 2,000 multi-family building owners for those years of overcharging, and lower their rates for backyard service for recycling carts going forward. The settlement will make these Oakland ratepayers whole, remedying the harm they suffered for years as a result of CWS’ overcharging practices.
The City filed this lawsuit nearly five years ago regarding CWS’ recycling contract with Oakland. CWS charged rates for backyard recycling cart services to multi-family buildings that far exceeded the rate for the same service to single family buildings. Despite the City’s best efforts to negotiate in good faith with CWS to resolve the issue without litigation, those efforts did not bear fruit. To protect City residents from CWS’ overcharging practices, including charges up to 550% of what their contract allowed, the City sued CWS in 2017.
Only through the course of the litigation did the City learn that CWS had overcharged Oakland ratepayers for services related to bringing recycling carts out to the curb at multi-family buildings by a total of approximately $6 million. Under the terms of the settlement, CWS must repay those property owners who were overcharged in a timely fashion. Oakland property owners who were overcharged will be notified in the coming months of their eligibility for a refund, and will be provided information about the process for receiving their refund.
In addition, under the terms of the settlement, CWS will lower its rates so they are in line with the rates CWS charges for the same backyard service at single-family buildings. These building owners will receive a refund if they were overcharged, and CWS will charge the correct, lower rate for this service going forward.
Unjust and unfair dealing is unacceptable and will not stand. I am proud of my office’s and the City Administration’s unflinching work, which culminated in securing refunds of overcharges totaling approximately $6 million for Oakland property owners and reducing the rates for these vital services to a fair and reasonable level.
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