“Reform” by referral

If you sat through the nearly five hours of the June 29 Council meeting (or, as we did, watched the entire video), you would be entitled to expect that the next step in Council’s pursuit of “police reform” would be a report, no later than the end of this month, by a subcommittee consisting of Mayor Marilyn Ezzy Ashcraft and Councilwoman Malia Vella with recommendations about the “scope and goal” of the process going forward.

That, after all, is the motion Councilman Jim Oddie made, and his colleagues unanimously voted for.

But Vice Mayor John Knox White apparently doesn’t want to wait another two weeks to get the report from the subcommittee and see what his colleagues have come up with.  Likewise, despite his frequent invocation of “engaging the community,” Mr. Knox White apparently feels ready to deliver his own prescriptions for “police reform” without the need for any further citizen input.  So, with the “concurrence” of Mr. Oddie, the Vice Mayor asked City Manager Eric Levitt to schedule a special Council meeting for Tuesday at which the only item on the public agenda will be a referral by the two Councilmen urging Council to adopt an attached resolution.

As described in the referral, the resolution would seem relatively straightforward and facially benign:  by passing it, Council “declares racism as a public health emergency and includes actions and changes to various City programs, the budget and workplan.”  That barebones description may suffice under the Brown Act, but it doesn’t come close to revealing the full import of the resolution Messrs. Knox White and Oddie want their colleagues to pass.

After more than a page of recitations condemning racism, the resolution begins with the declaration of a “public health emergency.”  It then sets forth a lengthy set of “commitments” by Council and directives to the City Manager.

Paragraph 5 is the one that’s hard to miss:  by passing the resolution, Council “commits to identifying up to 42% of the City Police Department budget to reallocate towards programs that support public health, wellness, and resilience. . . .”  To that end, the City Manager is charged with beginning an “outside audit” of the “activities” of the Alameda Police Department, including the “time spent on” and “the time and staffing provided for” these activities, with an eye to making changes “to meet the goals and objectives outlined by the community-led steering committee on safety and security for all Alamedans.”  (We’re not sure whether this refers to the Ashcraft/Vella subcommittee or to some other as-yet-to-be-formed body.)

We suppose it’s possible that all Messrs. Knox White and Oddie want Council to do is to engage in an academic exercise of “identifying” theoretical budget cuts; more likely, their resolution represents the first step toward “defunding” the Alameda Police Department by “committing” to slash its budget by 42 percent – i.e., by about $15.8 million in fiscal year 2020-21 – and re-directing the funds to social programs.  If Council passes the resolution, it will have made a fundamental decision about where and how to spend the taxpayers’ money; all that’s left will be for staff to implement the decision.  (And the resolution goes on to offer a list of action items for staff to “explore” in carrying out the re-allocation mission.)

This is, to say the least, a truly extraordinary way of conducting the people’s business.  The resolution doesn’t reverse the June 29 Council vote putting the Ashcraft-Vella subcommittee in charge of devising a mechanism for moving forward with “police reform,” but it surely renders some of the work they’re doing superfluous.

One is tempted to view the referral as another attempted power grab by Mr. Knox White, who probably is still smarting by having been chastised – politely but firmly – by Mayor Ashcraft on June 29 after he tried to take control of the planning process via his Facebook page, and an attempted plea for redemption by Mr. Oddie, who himself probably is still smarting from having been pilloried – not so politely but just as firmly– by Mr. Knox White at the same meeting after Mr. Oddie dared to urge empathy for police officers.

But putting motivations aside, the resolution shows every sign of being hastily put together and inadequately thought out.

For one thing, the legal authority for Council to issue a declaration that racism is a “public health emergency” is tenuous at best.

The state Health and Safety Code authorizes a county health officer to declare a “local health emergency” if certain conditions exist.  The shelter-in-place and subsequent orders issued by the Alameda County Public Health Officer in response to the coronavirus pandemic were made pursuant to this authority.  But the Alameda City Council is not the county health officer, and, however evil racism is, it isn’t a “contagious, infectious, or communicable disease” like COVID-19.

Separately, the state Government Code authorizes a local governing body like a city council to declare a “local emergency” if certain conditions exist.  The declaration of emergency issued by Council on March 17 and extended on April 7 and June 16 in response to the coronavirus pandemic was made pursuant to this authority (and to similar authority found in the City Charter and Municipal Code).

The relevant state statute defines “local emergency” this way:

“Local emergency” means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the territorial limits of a county, city and county, or city, caused by such conditions as air pollution, fire, flood, storm, epidemic, riot, drought, sudden and severe energy shortage, plant or animal infestation or disease, the Governor’s warning of an earthquake or volcanic prediction, or an earthquake, or other conditions, other than conditions resulting from a labor controversy, which are or are likely to be beyond the control of the services, personnel, equipment, and facilities of that political subdivision and require the combined forces of other political subdivisions to combat, or with respect to regulated energy utilities, a sudden and severe energy shortage requires extraordinary measures beyond the authority vested in the California Public Utilities Commission.

(Although shorter, the definition in the Municipal Code is similar.)  Again, it is difficult to see how racism fits this definition.

And we are not splitting legal hairs here.  The declaration of a local emergency is more than just a political statement; it confers broad powers on the local government.  Under such a declaration, a city council (or officials it designates) “may promulgate orders and regulations necessary to provide for the protection of life and property.”  In addition, a city council, by a 4/5 vote, may adopt ordinances “for the immediate preservation of the public peace, health or safety” that take effect right away (rather than 30 days after passage at a second reading).  If Council passes a resolution declaring racism to be a “local emergency,” arguably it could then promulgate orders and regulations, or even enact “urgency ordinances,” that put into immediate effect the entire agenda advocated by the activists whose avowed aim is to “abolish” the police.

Since Mr. Oddie has a law degree, and the law is one of the many areas in which Mr. Knox White professes expertise, we assume they considered these legal issues before submitting their referral.  Even so, we’d like to hear what City Attorney Yibin Shen has to say about them.  Maybe someone on the dais will ask him Tuesday night.

Next let’s turn to the paragraph in the resolution quoted above.

The first question that occurred to us was:  Where did the 42 percent figure come from?

The resolution itself states that, “These cuts will be proportional to the 42% reduction in services that the Department has historically responded to and identified to shift to other departments.”  We weren’t sure what that meant, so we asked Mr. Knox White.  He replied that “the Police Chief would be best positioned to answer this question as we are simply proposing to support the Chief’s response five policy proposals for eliminating police responses.”

So it was on to Police Chief Paul Rolleri.  The Chief informed us, unequivocally, that he had not recommended cutting the police department budget by 42 percent – or by any other amount.  He had prepared a memorandum to City Manager Levitt that, among other things, identified several categories of “non-criminal” calls to which APD would not respond.  Thereafter, at Mr. Levitt’s request, the Chief prepared a spreadsheet showing, by category, the number of “non-criminal” calls for service the department had received in 2018, 2019, 2020 and the percentage of total calls they represented.

Neither the memo nor the spreadsheet was intended as a blueprint for budget-cutting, the Chief said.  But apparently this is how Mr. Knox White chose to use them.  It is our understanding that he took the data in the spreadsheet and came up with his own list of the types of calls to which he decided APD should not respond.  By his reckoning, 42 percent of total calls – we still can’t figure out how he came up with this exact number – fell into this category.  And then he concluded that, by eliminating these calls from the police department’s bailiwick, its budget could be reduced by 42 percent.

As an economic analysis, this makes no sense.  A reduction in the number of calls justifies a budget cut of the same percentage only if the resources necessary to respond to a call for service are the same regardless of the nature of the call.  Which, of course, they are not:  responding to call reporting a stolen bicycle takes fewer officers and less time than responding to a call reporting an armed robbery.  Absent a uniform cost per call, the impact on the police department’s budget of a hypothetical reduction in the number of calls is not readily quantifiable.

Moreover, as both Chief Rolleri and Alameda Police Officers Association president Alan Kuboyama explained to us, this approach betrays a lack of understanding of how policing works.  At present, a minimum of five police units are patrolling the city at any given time, with one supervisor on duty.  Even if these officers no longer are expected to respond to non-criminal calls, they still have to be available to handle the kind of calls that even Mr. Knox White – we hope – would approve of.  And they’ll still deserve to be paid their full salary and benefits for their day’s work even if their workload is lighter.

But let’s give Messrs. Knox White and Oddie the benefit of doubt:  suppose that, even though we fail to see it, there is some logic behind a 42 percent cut in the police budget.  In that case, two questions arise, neither of which is addressed in their resolution.

First, what would the police department have to do to reduce its budget by 42 percent?  Since salary and benefits represent $28.4 million out of the total $37.5 million FY 2020-21 budget, the natural place to start is personnel.  But can staffing costs really be cut by more than half, as would be necessary to reduce the departmental budget by $15.8 million?

Since we’ve heard so much about vacant positions in the police department, one might think the solution is to reduce the authorized number of sworn personnel to the number actually on the job now and then impose a hiring freeze.  But there are two problems with this strategy, one economic, the other legal.

According to Chief Rolleri, there currently are 16 authorized but unfilled sworn positions in the department; by the end of the year, there will be 22.  He has estimated the all-in cost – including salary and benefits – of a newly hired police officer to be around $200,000.  So even a 22-person reduction in authorized head count would “save” only $4.4 million, far short of the $15.8 million a 42 percent budget cut would require.

APOA president Kuboyama pointed out the legal problem.  The current Memorandum of Understanding between the police union and the City states that, “During the term of this MOU, the City will not reduce the number of sworn officers (88) during the life of the Alameda Fire Department SAFER Grant.”  The SAFER grant to which the MOU refers is still in effect; indeed, in October 2019 it was renewed for another three years.

As it happens, one of Messrs. Knox White’s and Oddie’s colleagues is a union labor lawyer by profession.  Perhaps the two Councilmen were reluctant, for Brown Act reasons, to solicit Ms. Vella’s opinion beforehand about the legality of cutting the police budget by reducing the authorized number of sworn personnel, but the Brown Act doesn’t bar her from speaking up now, and we hope she states publicly her legal conclusion on this issue.

If a hiring freeze won’t meet the goal of cutting the police budget by $15.8 million, the only alternative is layoffs or terminations.  (Please, don’t suggest the goal can be met by selling the infamous “armored vehicle.”)  At the June 29 meeting, Mr. Knox White ruled out such a step – and then promptly ruled it back in.  “We’re not going to fire half of the police department,” he said.  “But that’s on the table.  Everything is.”

The MOU, however, also contains provisions regarding employee terminations and the grounds therefor.  Again, we’d like to hear from Ms. Vella – or another union labor lawyer – about the legality of firing cops to free up funds to be spent on social programs.

The other issue raised by a 42 percent cut in the police budget is its impact on public safety.  Suppose the number of police officers assigned to patrol – 36, as of now – was cut in half.  We don’t claim to be experts in policing, but it stands to reason that the five sectors into which the city is now divided would have to be re-drawn, so that, on any given shift, a patrol unit would need to cover more territory than before.  And in such a case, it likewise stands to reason that the unit assigned to a sector may not be able to respond to any given call as quickly as before.

We confirmed our conclusion with Chief Rolleri.  “Depending on the size of a budget- related staffing reduction,” he told us, “I would anticipate longer response times.  It’s difficult to make definitive projections because this is uncharted territory.  We currently have 16 vacancies as of now and I project we will have 19-20 by September 1 and as many as 22-25 vacancies by the end of this year, so if there are cuts beyond those vacant positions it’s hard to imagine being able to maintain the response times we have today.”

If so, the public will pay the price.  The severity of the harm resulting from a delay in response depends on the type of call.  Forcing an Alameda resident to wait for a cop to show up to take a report of a stolen bike wouldn’t be intolerable.  After all, in Oakland, we’re told, the wait time is three days.  But forcing a resident to wait for a cop to show up to check into a prowler spotted in the neighbor’s backyard is another matter altogether.  By the time the cop gets there, the prowler may be gone – or, worse, he already may have broken into the house, grabbed a handful of loot, and fled the scene.

Both of our examples, of course, involve property crimes.  We shudder to contemplate the consequences of a delay in response to a call reporting a violent crime-in-progress.

At the June 29 meeting, Mr. Knox White lamented that the “community” – or at least the portion thereof that he listens to and that listens to him – had complained that Council was taking too long to impose any “reforms” on our local police department.  Getting his colleagues to pass the resolution attached to the referral might mollify those of his “progressive” supporters who demand the most or shout the loudest.  But we don’t see how it will do much good for the ordinary Alamedan, Black or otherwise.

Sources:

Knox White/Oddie referral: 2020-07-14 DK-Oddie referral; 2020-07-14 Resolution

Emergency declarations: New-EOM-Public-Health-and-Medical-Emergency-Powers-chapter; Emergency Powers Handbook

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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11 Responses to “Reform” by referral

  1. Robert Schrader says:

    Seems to be an inappropriate use of ’emergency powers’ by the progressive faction – and while I commend your (as usual) detailed and well-thought-out analysis, I have to say that I am not surprised by this knee-jerk reaction by the two council members named. I, too, have taken the time to look at council meeting videos in their entirety, and am summarily unimpressed by the lack of insight or thoughtfulness expressed by the actions of certain council members.
    Elections have consequences. Get these guys off the podium!!

  2. Jim says:

    Let’s not conflate progressives with those who engage in knee-jerk reactions.

    • Camille says:

      I have found that our City Council does have a propencity toward conflation and knee-jeck reactions. I was wondering where they got this idea that the APD’s racist actions was causing a public health problem. Then I found this bill to address homelessness:

      California SCR-92 recognizes racism as a public health threat and states that racist assumptions and practices have created unhealthy social and physical conditions for people of color. It highlights federal actions that have encouraged homeless shelters to discriminate against transgender people, preventing Black transwomen from accessing critical health services. It affirms the Legislature’s antiracist “Health-in-All” focus, and asks that it be reflected in laws and regulations.

      This bill sounds reasonable. With the COVID-19 pandemic, goverment has to figure out a way to get care for our most vulnerable. I’ve lived in Alameda for 34 years and have call the APD to report suspicious behavior and have been impressed with their good response and follow up. However, some officers displayed better social skills than others. Rather than disband our understaffed police department there should be training (charm school for police) and background checks on new incoming recruits.

      I’ve never seen where a citizen’s arrest has resulted in anything but a violent if not deadly confrontation. If the police department is not supported, I’m concerned that the quality of life here in Alameda will degrade to the kind of lawless I’ve seen in other countries that I have no desire to return to. Think about what happened recently at the Circle K at the corner of Webster and Buena Vista where a cashier felt so vulnerable he brought a gun to work and used it. How many other people are packing?

  3. Paul Foreman says:

    Thank you for another excellent column. I did question whether “public health emergency” was a proper platform for addressing this very real and important issue, but I unwisely viewed it as acceptable rhetoric to get public attention and failed to address the legal consequences of the same. I was not as concerned with the 42% figure as you because it is “up to” 42%, but upon reflection I accept your point that there is no data to support any suggested percentage.

    I do see other problems with the resolution.

    Sec. 2 mandates a annual City staff and Council training program “to address staff and community concerns about organizational and community relations issues related to racism in Alameda.”, while containing no identification of any issues specific to Alameda other than policing. It seems to me that we first need a process that identifies specific City government internal and external racial issues, before we determine if an annual training program is an appropriate action.

    I have a problem with Sec. 3 (A) because it commits the City to “providing” rather than promoting services that are far beyond its scope of City authority and finances, thus, making promises it cannot keep.

    Sec. 5 troubles me for the same reasons. The first sentence requires an annual report assessing. “all City policies and procedures to ensure racial justice and equity are core elements of
    city government.” which is appropriate, but then goes on to include collection of data on issues that are far beyond the scope or control of city government and imposes a significant burden on City staff and the budget. Section 7 troubles me for the same reasons.

    Finally, requiring a long-term and on-going anti-racism training program for all City staff (Sec. 2), annual reporting that assesses City policies and procedures regarding racial justice and equity (Sec. 5), and the creation of a staff position to oversee these programs (Sec. 7) are all long term mandates with significant fiscal impact and should be presented in the form of a proposed ordinance and subject to the close scrutiny by Council, staff and the public that any ordinance requires.

  4. Paul Foreman says:

    A few more observations: This resolution comes from a Council referral filed on July 6. The referral form requires that it be filed, “on the Monday two weeks before the Council meeting requested” thus implying that referrals are to be scheduled for regular meetings. Yet is is scheduled for a special meeting on minimum 7 days notice. There is nothing in the resolution that indicates that it is time sensitive. Why could it not have been noticed for the regular meeting of July 21 or at a well noticed special meeting approved by Council later in the month, especially since there was no advance discussion of such a resolution being in the works? Since there was no Council vote at a prior meeting to schedule this July 14 meeting, it could only be scheduled by the Mayor.

    Thus, for two months in a row the Mayor has scheduled a special meeting with only minimum notice and no advance warning of any kind. I would write yet another open letter to her, but it will go unanswered like my last one critical of her scheduling of special meetings. A majority of this Council is demonstrating its disregard for maximizing public input.

  5. Paul Foreman says:

    I must correct my previous comment critical of the Mayor for scheduling tomorrow’s special meeting. I have since learned that Mr. Knox-White and Mr. Oddie asked the City Manager for this special meeting who then referred it to our City Clerk who then received an expression of support from Ms. Vella, which caused the Clerk to schedule the meeting. Ms. Vella has informed me that Mr. Knox White contacted her and asked for her support for calling the meeting. Being wary of a Sunshine Ordinance violation she advised him that she did not want to know the subject matter of the meeting. Before finally voting for the meeting she received the City Attorney’s advice that such a majority vote outside of a meeting was ok so long as she did not know the subject of the meeting.

    Our Sunshine Ordinance requires a special meeting to be called by a majority of Council or the Mayor. However our Ordinance also requires that all meetings must be properly noticed with each item meaningfully identified in the meeting agenda and that a meeting includes, “A series of gatherings, each of which involves less than a majority of a policy body, to hear, discuss or deliberate upon any item that is within the subject matter jurisdiction of the City, if the cumulative result is that a majority of members has become involved in such gatherings;”

    That is what happened here. I see no exception in the Sunshine Ordinance that would allow such a vote. I intend to also inquire of the City Attorney in the morning. He may have case law to justify his advice.

    I apologize to the Mayor. This was not her doing.

  6. Diane D says:

    I have lived in Alameda for 12 years but have remained ignorant about the city government structure, personalities, or issues. Like many, the issues of racism and reallocating resources from police departments nation-wide have caught my attention. I would like to understand what is going on in Alameda where I live. It seems that there is a city council “commission” to examine this issue, and then there is another group, represented by Knox White and Oddie, who are proposing something else to expedite things. With a special session this evening to discuss (which may or may not happen). Am I on the right track here? Thanks in advance to whomever can explain it more succinctly.

    • Paul Foreman says:

      Diane, give yourself more credit. I think that you understand the basics very well. Mr. Knox-White has written me today that he is moving on this because he believes that, from the perspective of a person of color, the current process is too slow. He and I are both white and I think we both try to see things from the prospective of the victims of this deeply flawed society. However I think that Council’s current response is moving forward with deliberate speed in a citizen centered process (not a Commission) and that this resolution, if adopted, sidetracks it.

  7. Erik Miller says:

    John Knox-White is the sort of “I know what’s best for everyone” liberal who makes it necessary to create new terms for “liberal” every so often. My guess is that thanks to him and people like him, I won’t be able to refer to myself as “progressive.” “….from the perspective of a person of color….” give me a freakin’ break. If that guy were any whiter he’d be clear.
    There is a racism built into the idea that cutting or shifting the police department’s budget automatically helps people of color and that is the assumption that people of color would somehow be better off with fewer policing resources to respond to their own needs. That still views people of color as “other” who don’t have property and bodies and lives that need to be protected.
    We don’t need fewer cops, we need better cops. Cops who are psychologically screened, trained, policies in place, with citizens aware of channels for redress in case of abuses. And real legal repercussions for officers who are guilty, and especially so for other personnel who are guilty of trying to protect wrongdoers.
    BTW, there is a lot of attention being paid to this matter, and rightly so, but I see no mention made of APD’s past record in regard to treating people of various ethnic backgrounds. People sometimes think of “the police” as being some giant organization with smaller divisions, but each jurisdiction is quite autonomous and very different from even the one in the city next door. Our cops have nothing at all to do with the Chicago police or LAPD or Oakland PD. Different culture, different policies, different hiring practices, different training, even different laws. So how has APD been doing? Good? Bad? Are changes in order or are we punishing a good department for the sins of a big city department in another part of the country?

  8. Concerned says:

    Thanks for asking the right questions. The emperor has no clothes.

    Shocking that it’s got this far. What a huge mistake to put JKW or Oddie in charge of our safety. JKW’s 42% calculation of how much to cut the budget is based on a huge math/logic error, while failing to account for the MOU and the underlying illegality of using a very iffy “racism emergency” based on a response to a citizen call. This is what JKW’s undergrad psych degree will get you.

    Aren’t there any adults on this council or in the managers or city attorney’s office?

  9. Eric Smiler says:

    I am very concerned that Knox White, Vella and Oddie have an agenda that does not conform to the vast MAJORITY of Alaemda citizens.

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