Alameda County Super. Ct. No. RG08-380286
The opinion of the court was delivered by: Dondero, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Following a bench trial, a judgment was entered that granted in part and denied in part the petition for writ of mandate filed by Marleen Sacks (petitioner or Sacks), in which she contested the allocation and use of tax revenue collected by the City of Oakland (respondent or the City) pursuant to Measure Y, an ordinance enacted by the voters to add neighborhood beat officers to the police department, among other purposes. The City has filed an appeal from part of the judgment that declared impermissible the use of Measure Y funds to hire and train new officers to replace those assigned to the neighborhood beat positions, and directed the respondent to refund Measure Y revenue allocated to the impermissible use. In her appeal from the judgment petitioner asks us to reverse the part of the judgment that denied relief in the nature of a declaration that the City is required to maintain a police staff of 802 officers, including six crime reduction team officers. In a second appeal petitioner claims that she was entitled to an award of attorney fees pursuant to Code of Civil Procedure section 1021.5 and the common fund doctrine.*fn2
We conclude that the City did not make an impermissible use of Measure Y funds by indirectly hiring and training new officers to replace veteran officers who were assigned to the neighborhood beat positions added by the ordinance. We further conclude that the City was required to appropriate funds, but not actually staff the police force, with the minimum number of officers specified by Measure Y. Finally, we conclude that the trial court did not abuse its discretion by denying petitioner an award of attorney fees. We therefore reverse the judgment in part, and affirm the denial of the award of attorney fees.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In 2004, the voters in the City enacted Measure Y, an ordinance which imposed a special parcel tax and commercial parking lot surcharge to be used for an "integrated program of violence prevention and public safety intervention." One of the primary specified purposes for the tax proceeds raised by the Measure Y ordinance (the ordinance or Measure Y) was to "hire and maintain" at "least a total of 63 police officers" assigned to enumerated "community policing" activities: primarily, "neighborhood beat officers," allocated one to each "community policing beat" solely to "serve the residents of that beat" by providing familiarity with the neighborhood, regular contact and prompt police response; supplemental police response to school safety and truancy; have at least six of the total additional officers assigned to investigate illegal narcotic transactions and violent crimes in identified violence hot spots; and, "additional officers" to "intervene in situations of domestic violence and child abuse."*fn3 Other specified services to which at least 40 percent of the revenue was apportioned included youth outreach and after-school programs, domestic violence counselors, and fire services.
By its terms Measure Y directed the City to place the funds collected from the taxes into a "special fund" to be "expended only for the purposes authorized" by the ordinance. The special Measure Y revenue fund was maintained separately from the General fund, and the revenue sources in the Measure Y fund were "legally restricted to expenditures for specified purposes." The City was also required to perform an independent audit annually to "assure accountability and the proper disbursement of the proceeds" in accordance with the stated objectives of Measure Y. An oversight committee was created to review the audits for compliance with the ordinance. Measure Y further provided: "No tax authorized by this Ordinance may be collected in any year that the appropriation for staffing of sworn uniformed police officers is at a level lower than the amount necessary to maintain the number of uniformed officers employed by the City of Oakland for the fiscal year 2003-2004," which was then 739 officers. The taxes imposed by Measure Y were to "continue in effect for 10 years" following the effective date of the ordinance, January 1, 2005.
Before Measure Y was enacted the Oakland Police Department (the Department) already operated a community policing program staffed with neighborhood beat officers "sometimes referred to as problem solving officers or 'PSO's'." The Department established "57 neighborhood beats," 14 of which were staffed with PSO's prior to the adoption of Measure Y. The Department had been involved in community-based police practices since 1994, and was considered a recognized leader in this approach to law enforcement.
Much of the revenue collected pursuant to the ordinance was not spent to directly add new officers to the neighborhood beat assignments. Even before Measure Y was enacted, for various identified reasons the Department assigned only veteran, experienced officers to neighborhood beat positions. Neighborhood beat officers provide a wide range of specialized community policing services which require advanced training and experience with members of the community. According to the Department's pre-existing deployment policy (General Order No. B-4), newly sworn officers, even after completing academy training, must successfully engage in patrol duties for a minimum of three years to gain needed experience before any transfer to neighborhood beat positions; the Department thereafter determines if patrol officers are ready and suited for community policing positions or other "out of patrol" assignments. After Measure Y was enacted the Department continued to follow its considered practice of assigning new officers to patrol rather than directly to the specialized community policing positions funded by the ordinance. With this practice in place the City implemented a policy to use Measure Y funds to recruit, hire and train additional new officers, who were assigned initially to patrol duties "to backfill" the positions of veteran officers who were transferred to the neighborhood beat positions.
Also, the Department did not immediately assign veteran officers to fill all of the neighborhood beat positions funded by Measure Y. To do so, the Department decided, would adversely impact essential patrol, response and emergency services while new officers were hired and trained, particularly due to the high attrition rate that resulted in the continuing loss of veteran officers both before and after the passage of Measure Y.
The City expended the revenue obtained from Measure Y to undertake a program of recruiting, hiring and training new officers to increase the Department staff to levels mandated by the ordinance. However, due to an even greater loss of existing officers through injuries and retirement, as well as unusually high attrition from the police academies, Department staffing levels decreased and the neighborhood beat positions were not promptly filled to the extent specified in Measure Y. By the middle of 2005, the Department force was 116 officers below the minimum level authorized by Measure Y, and only five new neighborhood beat officers had been assigned.
In response, by September of 2005, the City adopted a "40 percent formula" to distribute funding to Measure Y objectives. The Department's deployment strategy was to assign 60 percent of its officers to patrol and 40 percent to community policing activities. Veteran police officers were deployed to Measure Y community policing positions at a rate of 40 percent of the newly hired officers, and 40 percent of the Measure Y funds were allocated to the costs associated with recruitment, hiring and training of new officers.
Thereafter, the Department adhered to the 40 percent formula in funding and deployment of officers, in an attempt to fill the many neighborhood beat positions that remained vacant. In March of 2006, the Department obtained approval from the City to devote additional revenue from the general and Measure Y funds in accordance with the 40 percent formula to an "Accelerated Recruitment and Training Program." As a result, more neighborhood beat positions were filled as new officers completed academy training and mandatory field training programs, although Measure Y positions remained unoccupied and Department staffing levels continued to be below authorized strength.
By March of 2008, the City passed Resolution No. 81104 (the resolution) to augment the recruitment and training program with supplementary resources to facilitate the addition of new police officers to the Department force at a higher rate than the loss from attrition. The resolution authorized the City to transfer appropriations in the amount of approximately $7.7 million from the accumulated balance in the Measure Y fund for use in the augmented recruitment and training program. The program approved by the resolution was designed to increase the Department staff and consequently add Measure Y positions. A condition in the resolution specified that to the extent "any Measure Y funds advanced for the recruitment are used for the hiring of non-Measure Y officers, the General Fund shall reimburse the Measure Y Fund the equitable and proportionate costs of the recruitment of the non-Measure Y officer." According to the resolution, the City was also required to provide "monthly actionable reports" to track the implementation of the "recruitment plan including a tracking mechanism of the budget and balances and whether they are used for Measure Y or Non-Measure Y purposes."
Following the enactment of this resolution the City engaged in an accelerated recruitment, hiring, training and deployment program that continued to conform to the 40 percent formula. By November of 2008, the total number of sworn officers in the Department was 768. As of February of 2009, a total of 164 trainees successfully completed the police academy and subsequent field training, and were assigned to patrol and other officer duties. Veteran officers were assigned to a total of 65 neighborhood beat and domestic violence intervention positions, along with supervising sergeants, to provide community policing in each of the 57 neighborhood beats, in addition to the 14 PSO's previously assigned to neighborhood beat positions - who were not paid with Measure Y funds.*fn4 A total of 12 of the officers who were hired and trained by the Department following the enactment of Measure Y were ultimately deployed to community policing positions once they successfully completed patrol duties. The number of officers exceeded the minimum level of 739, plus 63 neighborhood beat officers, set by the ordinance.
The City also adduced evidence that the Measure Y fund was charged with 40 percent of hiring-related costs before the resolution, and 100 percent of the costs of the augmented recruitment program. Evidence at trial demonstrated the "new hires" following the resolution were deployed to "Measure Y duties," and none of the funds authorized by the resolution have been spent "for non-Measure Y hiring." The City's professed policy is to reimburse the Measure Y fund for any "equitable and proportionate costs" of any officers not deployed to Measure Y duties, in accordance with the resolution.
The petition for writ of mandate and complaint for injunctive relief filed by Sacks in April of 2008, sought to prohibit further collection of Measure Y revenue by the City until proof of compliance with the conditions specified in the ordinance, specifically: the assignment of the "full complement of 63 Measure Y officers," a total staff of 803 officers in the Department, and only "63 officers funded through Measure Y" funds. Sacks also requested reimbursement of all Measure Y revenue unlawfully expended for recruitment, training and duties performed by officers "not related to Measure Y."
Following a hearing at which documentary evidence was considered, the trial court granted in part the petition for writ of mandate. The court found that use of Measure Y funds to hire and train officers "who were not placed into Measure Y positions" was "not permitted" by the ordinance. Specifically, the court determined that use of Measure Y funds pursuant to the 2008 augmented recruitment program to train officers who "backfill patrol assignments in order to free up veterans for Measure Y positions," was an "impermissible use of Measure Y funds." The City was directed to "refund all Measure Y monies" expended "for recruitment, hiring and academy training of officers not placed directly into Measure Y positions." (Italics added.) The court further found that the City failed to complete the audits required by the ordinance and Government Code section 50075.1, and was ordered to "conduct independent audits for each year from January 1, 2005 through the present."
The trial court denied petitioner's request for a declaration that the City has a "ministerial duty to maintain a police staff of 802 police officers," including 63 neighborhood beat officers and a "base staff of 739 officers," as not mandated by Measure Y. The court found that although Measure Y imposes upon the City a duty to "appropriate funds for such positions," those positions need not be actually filled by the Department with "a certain number of officers in order to collect the tax" imposed by the ordinance. Also, no ministerial duty on the part of the Department to assign the neighborhood beat officers to "spend 100% of their time working within their beat" was found by the court. The court declared that the City proved officers had been assigned to all of the neighborhood beat positions as of September of 2008, and those officers were not required by Measure Y to "remain within the geographic confines of the beat at all times." Petitioner was denied relief in the form of a tax refund for herself or other taxpayers. Her subsequent request for attorney fees was also denied.
The City has filed an appeal from the part of the judgment that found Measure Y funds may not be used to hire and train new officers who are "not placed in Measure Y positions." The City also filed an appeal from the order to complete the required audits, but subsequently performed the audits, and that portion of the appeal has therefore been rendered moot. (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214 [130 Cal.Rptr.2d 564].)
Petitioner's appeal seeks review of the trial court's order that the City has a duty to appropriate funds for a baseline police force of 739, but not a duty to actually staff that number of officers. In a separate appeal she has also challenged the trial court's order that denied her an award of attorney fees.
I. The Expenditure of Measure Y Funds by the City to Hire and Train Officers not Directly Assigned to Neighborhood Beat Positions.
The City argues that the trial court erred by finding the ordinance imposes a ministerial duty to allocate all revenue collected pursuant to Measure Y to hiring and training officers to be placed directly into Measure Y positions. The City's position is that the mandatory duty stated in the ordinance to "hire and maintain" at least a total of 63 officers assigned to "community policing objectives" is not specifically delineated, and must be interpreted to mean that the neighborhood beat positions may be filled with "fully trained veterans," not just "newly hired officers." The City points out that according to recognized pre-existing hiring and deployment policies, newly hired and trained officers were not assigned to the neighborhood beat positions. With the ambiguous nature of the language of the ordinance, the argument proceeds, the voters did not express an intention to "affect the City's exercise of discretion" to expend revenue "to recruit and train officers who backfill in patrol for veterans assigned to Measure Y positions." Indeed, there is no express language in the ordinance that directs the department to change established and reasonable internal practices.
Petitioner responds that the text of Measure Y imposes a duty on the City to allocate revenue generated from Measure Y only to the addition of "Measure Y officers themselves, not other people, who may or may not 'backfill' for them." Her position is that Measure Y authorizes the expenditure of the collected tax revenue on "recruitment or academy training expenses for officers placed directly into Measure Y positions." She adds that "because the City ...