Backroom Dealing in Developing City-Owned Properties in Oakland

Conclusions 31

• CL1 Page 119
  To inquire into all public offenses committed or triable within the county (Penal Code §917);
• CL2 Page 119
  To inquire into the case of any person imprisoned and not indicted (Penal Code §919(a));
• CL3 Page 119
  To inquire into the willful or corrupt misconduct in office of public officers of every description within the county (Penal Code §919(c));
• CL4 Page 119
  To inquire into sales, transfers, and ownership of lands which might or should revert to the state by operation of law (Penal Code §920);
• CL5 Page 119
  To examine, if it chooses, the books and records of a special purpose, assessing or taxing district located wholly or partly in the county and the methods or systems of performing the duties of such district or commission. (Penal Code §933.5);
• CL6 Page 119
  To submit to the presiding judge of the superior court a final report of its findings and recommendations that pertain to the county government (Penal Code §933), with a copy transmitted to each member of the Board of Supervisors of the county (Penal Code §928); and,
• CL7 Page 119
  To submit its findings on the operation of any public agency subject to its reviewing authority. The governing body of the public agency shall comment to the presiding judge of the superior court on the findings and recommendations pertaining to matters under the control of the governing body and every elective county officer or agency head for which the grand jury has responsibility (Penal Code §914.1) and shall comment within 60 days to the presiding judge of the superior court, with an information copy sent to the Board of Supervisors, on the findings and recommendations pertaining to matters under the control of that county officer or agency head and any agency or agencies which that officer or agency head supervises or controls. (Penal Code §933(c)). Secrecy/Confidentiality Members of the grand jury are sworn to secrecy and all grand jury proceedings are secret. This secrecy guards the public interest and protects the confidentiality of sources. The minutes and records of grand jury meetings cannot be subpoenaed or inspected by anyone. Each grand juror must keep secret all evidence presented before the grand jury, anything said within the grand jury, or the manner in which any grand juror may have voted on a matter (Penal Code §924.1). The grand juror’s promise or oath of secrecy is binding for life. It is a misdemeanor to violate the secrecy of the grand jury room. Successful performance of grand jury duties depends upon the secrecy of all proceedings. A grand juror must not divulge any information concerning the testimony of witnesses or comments made by other grand jurors. The confidentiality of interviewees and complainants is critical. 118
• CL8 Page 28
  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. 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 27
• CL9 Page 29
  to prevent further misuse of closed session meetings and eliminate the inequities in the developer selection process. ____________________________________________________________
• CL10 Page 42
  The Grand Jury has deliberately not investigated nor addressed the merits of OAW’s plans. OAW should have the opportunity to make its case for county funding just as any other community-based organization is entitled to do, especially those not closely associated with a county supervisor. The foregoing demonstrates a failure of good governance practices by the county and the Board of Supervisors, in at least three respects: (1) The supervisor hired the county employee, with at least one objective being that the county employee would form OAW and get it up and running. With the supervisor’s knowledge, the county employee has acted to accomplish that and has served as the organization’s chief executive officer and a director from its incorporation in 2014. The county employee is wearing “two hats” because she is acting and advocating on behalf of OAW in dealings with other county agencies and with non-county persons and organizations, at the same time as she is informing the supervisor as a member of his staff about OAW’s status and activities and advising him about whether he should appropriate substantial amounts of FMRP funds to OAW. 41
• CL11 Page 43
  (2) The Board of Supervisors places no limit on FMRP funds that can be used for donations to nonprofit organizations. It appears the supervisors are free to spend as much of their FMRP money on donations to nonprofit organizations as they wish. Considering the substantial amount of funds in each supervisor’s FMRP account (totaling $9,764,421 as of July 1, 2016, for the five supervisors) and the lack of limitations, the possibility of discretionary spending abuse must be addressed immediately. (3) The MAPP states, “Fiscal Management Reward Program expenditures have the same requirements as other expenditures of county dollars.” This rule requires that all FMRP disbursements be made according to the “County’s Procurement Policy and Procedures Overview – Guidelines for Acquisition of Goods and Services Including Professional Services,” which, in turn, sets forth bidding and contracting requirements for disbursement of county funds. Among other things, the procurement policy requires that for contracts and transactions when the amount involved exceeds $3,000, quotes or bids from multiple sources must be obtained and, for contracts or transactions when the amount involved exceeds $25,000, written contracts must be obtained. This policy has not been followed for FMRP disbursements by the Board of Supervisors consisting of donations to nonprofit organizations. For such donations, no competitive bidding or application process is required, no RFP process is required, and no contract is required. There is no independent evaluation of the organization either before a donation is made or after the organization has received and spent the funds. Although the Board of Supervisors formally approved the FMRP disbursements to OAW, the Grand Jury’s investigation revealed no independent evaluation by anyone and the FMRP disbursements were approved on the Board of Supervisors consent calendar without any discussion. The difference between how the Boomerang funding and the FMRP funding were handled reinforces this point. OAW’s application for $790,000 in Boomerang funding was reviewed by a separate county agency, which conducted a competitive process and made a recommendation to the Board of Supervisors that OAW be awarded $290,000. That approval was subject to a written contract between the county and OAW that contains various conditions and requirements. The FMRP disbursements for $710,000 contain none of those requirements or provisions. The Grand Jury also believes that the conduct described in this report constitutes a violation of the conflict of interest provisions set forth in Section 66 of the Alameda County Charter, and Section 2.02.170 of the Alameda County Administrative Code, each 42
• CL12 Page 44
  of which says in pertinent part: “No officer or employee shall be interested directly or indirectly in any contract or transaction with the County . . . .” The Grand Jury believes this conflict of interest was created at the hiring of the county employee to work on the staff of the supervisor, and has continued thereafter. The county employee was hired, at least in part, to found and pursue the goals of OAW and has acted accordingly. This use of county staff resources constitutes a conflict of interest because it creates a situation in which, if the interests of the county and the interests of OAW differ, the county employee may be unable to fulfill her duties to the county while at the same time fulfilling her duties to OAW. This employment arrangement is inappropriate and should not be replicated in the future. Moreover, the Grand Jury believes the supervisor was aware of the conflict of interest and named a person other than the county employee as principal of OAW in the FMRP request letters to the Board of Supervisors. ____________________________________________________________
• CL13 Page 61
  Alameda County has funded Youth UpRising’s administrative and building expenses since 2005, and over the years has significantly expanded its support with additional contracts from other county departments. Public investments like these deserve robust oversight to ensure that services are being delivered and public funds are spent properly. After completing its investigation, the Grand Jury concludes that the county’s oversight of Youth UpRising was inadequate, The county is an essential partner with this key community-based fragmented, and failed to uncover Youth organization, and its oversight of the UpRising’s financial and governance organization should be commensurate problems. with its financial support. In 2016, Youth UpRising amassed a $2 million operating shortfall due to leadership issues and poor financial controls. The organization and its CEO had invested significant time and resources on new projects aimed at addressing issues of affordable housing, workforce development and opened two charter schools in the Castlemont neighborhood of east Oakland. Leadership issues, staff turnover and board turmoil plagued the organization, culminating in the financial crisis. 60
• CL14 Page 62
  Yet the county – Youth UpRising’s primary funding source – had little to no knowledge of any of these issues. The Alameda County supervisor who served on the Youth UpRising board of directors rarely attended board meetings, thus providing little oversight for the county’s investment. Further, the county agencies that contracted with Youth UpRising did not coordinate their oversight of the organization, and the county Health Care Services Agency, which held the core contract with Youth UpRising, had very little information about Youth UpRising’s new projects, comingling of funds, and leadership challenges. Finally, the county had no indication that it was cross-subsidizing Youth UpRising’s new projects when it provided the $1 million bailout in the summer of 2016. While the county did hire an outside auditor to determine whether Youth UpRising’s financial problems were temporary and accurately reported, the county did not make the auditor’s recommendations a condition of the county providing the bailout funds. As the county HCSA embedded new reporting measures into the core contract with Youth UpRising after the bailout, it should have taken further steps to coordinate county oversight with other departments; assigned the contract’s oversight to a contract administrator rather than giving Youth UpRising special treatment; and even reconsidered the county’s limited role in the management of the organization. The county is an essential partner with this key community organization, and its oversight of the organization should be commensurate with its financial support. ____________________________________________________________
• CL15 Page 72
  A county supervisor does not have the authority to dictate orders to department heads. The Grand Jury believes that all county department heads should be free to manage the day-to-day operations of their departments and make choices about delivery of services without political interference from elected officials. While individual supervisors have the right to seek clarification and to obtain information from department heads, they should not be permitted to interfere with department operations. When county department heads are at-will employees appointed by the Board of Supervisors, they are subject to pressure from individual board members to make politically expedient choices rather than to use their own good judgments about what is best for the interest of the citizens of Alameda County. Many public agencies have rules in place that prohibit political interference. Unfortunately, despite an unambiguous Grand Jury recommendation two years ago, Alameda County does not. The Grand Jury again urges the Board of Supervisors to follow the lead of other government entities by adopting a robust anti-interference policy, and by relinquishing the responsibility for hiring department heads to the county administrator, in order to serve Alameda County more effectively. ____________________________________________________________
• CL16 Page 81
  As part of creating this new management structure, great care must be taken to identify the proper stakeholders who have the knowledge and experience to create the specifications of the new system. Without the involvement and ownership of the people who know how the Probation Department should operate, no new system will be successful. While the Alameda County Probation Department has suffered for years from a lack of focus and misplaced priorities regarding modernization, the Grand Jury is encouraged that new leadership at the department is taking positive action to address these deficiencies. The old policies have caused probation staff frustration and burnout, ill- served clients, and a public at risk because of inadequate supervision of dangerous offenders. This underscores why it is so important that the new case management and evidence-based risk-assessment systems be successfully implemented. ____________________________________________________________ 80
• CL17 Page 88
  As electronic communications become more commonplace and as more public business is transacted by email, adequate and consistent policies must be in place to ensure transparency, retention and public access. Having each staff member or elected official responsible for determining what may or may not require retention as a public record would appear to create an undue burden. Without proper training and support (not to mention job turnover), errors and omissions are bound to occur. The real possibility of deliberate destruction of public records also exists. Additionally, the burden of transferring the communication from the email system to another media for storage is extremely time consuming. The county position is that email is treated like any other document. Individual employees have the responsibility to save or print electronic documents or communications if they 87
• CL18 Page 89
  are deemed public records. Some documents, like those considered drafts, do not need to be retained. Unlike nearly every city within the county, the county government’s position is not stated in any formal policy distributed to departments and employees. Without a policy, the individual departments have no guidance to give to their employees. As a result, the practical application of the county’s informal stance is that its 9,600 employees are responsible for managing their own email. They can delete any email that they send or receive at any time. It should also be noted that, with the conversion to Office 365 and cloud storage, the financial impact of increasing retention should be minimal. Although the county’s direct response answered many of the Grand Jury’s questions, the absence of a clear and consistent policy governing public records management is of special concern because the county’s elected officials and, specifically, the Board of Supervisors, should be held to a higher standard of transparency while fulfilling the obligations of their office. ___________________________________________________________
• CL19 Page 95
  Adopting a county-wide vendor evaluation and debarment policy is consistent with the county’s effort to establish a system of results-based accountability for contractors providing goods and services on behalf of Alameda County. Ensuring that vendors are held accountable for their performance and having policies in place to bar them if they are defrauding the county will be cost effective and will aid in efforts to serve those most in need. ____________________________________________________________
• CL20 Page 100
  Some of the provisions in the Civil Service Rules and the County Charter affecting the Civil Service Commission are out-of-date and needlessly and adversely affect the ability of the county to operate effectively. Although an effort in 2008 to revise the rules did not succeed, the Grand Jury believes that it is time for the appropriate stakeholders to review this subject again and make appropriate revisions. The appropriate stakeholders would include (but not necessarily be limited to) representatives of management and labor, Human Resource Services, the Civil Service Commission, and the Alameda County Board of Supervisors (to the extent board approval is required or desirable). The Grand Jury believes that updating the Civil Service Rules can only strengthen the county’s workforce. ____________________________________________________________
• CL21 Page 106
  The Grand Jury noted no security issues during the inspection and the facility appeared to be in good operating condition. The knowledgeable staff was courteous, professional and responsive to questions, following up immediately to provide requested information. The Grand Jury is concerned about an apparent duplication of services and a lack of coordination between the new Five Keys operation in the Sandy Turner Education and Training Center and the ongoing services provided by the transition center. This may be 105
• CL22 Page 107
  due to an initial adjustment period because Five Keys had only been running the Sandy Turner Education Center for about six months at the time of the Grand Jury’s second inspection. Nevertheless, a need exists to assess any overlaps and decide how to coordinate services going forward. Fine-tuning this relationship will ultimately improve program results and provide a greater benefit to participants. ____________________________________________________________ FINDINGS None RECOMMENDATIONS None RESPONSES REQUIRED None 106
• CL23 Page 108
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• CL24 Page 109
  FREMONT HALL OF JUSTICE COURT HOLDING FACILITY INSPECTION INTRODUCTION On October 25, 2016, the Grand Jury inspected the Fremont Hall of Justice Court Holding Facility, located at 39439 Paseo Padre in Fremont. The facility, built in 1979, is designated by California Code of Regulations title 15, section 1006, as a court holding facility for detainees awaiting court appearances. Normal hours of operation are from 8:00 The facility primarily a.m. until 4:00 p.m.; four hours is the average length of serves the Fremont, stay. The facility is staffed by the Alameda County Newark, and Union City Sheriff’s Office with both deputy sheriffs and non-sworn areas. personnel. The Sheriff’s Office is charged with the custody, control, and welfare of the detainees while at the jail and in the courtroom. The Grand Jury focused on inspecting the physical structure and individual cells; determining whether policies and procedures were in place and being followed; and confirming that security is adequate. INSPECTION The Grand Jury met with the jail’s command staff for a briefing regarding the daily operations of the facility, then inspected four cells, the access ports, and the movement corridors. The facility primarily serves the Fremont, Newark, and Union City areas. The majority of detainees are transported from Santa Rita Jail, but some are also transported from Hayward and Fremont jails. The detainees have been booked prior to being transported to the facility. Most detainees are facing misdemeanor charges, although some are facing felony charges. The facility contains 11 cells, one exclusively for female detainees and 10 available for either male or female detainees. Some smaller cells attach directly to courtrooms for extra security in transferring the detainees. The holding cells typically contain a toilet and a wash basin; those tested during the inspection were found to be in working order. The maximum number of detainees is 171, but the average daily population is 20. (The facility held 30 on the day of the inspection.) Cell placements are determined by detainee classification using criteria such as gang affiliation or behavioral issues. Use of restraints is also dependent upon classification. The 108
• CL25 Page 110
  facility has and follows a formal policy on use of restraints. Transgender detainees self- identify for placement and are typically placed in separate cells. The facility does not have a safety cell. Welfare and Institutions Code section 5150 (involuntary psychiatric hold) detainees are transferred to Santa Rita when it is safe to do so. Each cell is equipped with video surveillance system, and all occupied cells are monitored from a central video control room. Routine visual inspections are conducted every 30 minutes in addition to the video monitoring. Cells do not contain call buttons. No firearms are allowed in the holding cell area (they are stowed in lockers in the sally port), but deputies carry stun guns. Detainees transferred for court appearances bring bag lunches prepared by staff at their originating jail, as the facility has no kitchen for on-site food preparation. Since this facility does not house inmates overnight, there are no showers, recreational facilities, or library. Detainees do not have access to phones or visitors other than their attorneys. Personal items are not allowed except for the bagged lunch, minor medications, and a bible if desired. Supplies for an extended emergency are kept back at the originating jails and not at this facility. Water is available. There is no medical care facility on site. A detainee experiencing a serious health issue will be transported to a nearby hospital for treatment. If the problem is less severe, the detainee will be sent to Santa Rita for evaluation. Attorney-client communications occur through dedicated phones located in a holding cell separated by a wall with a viewing window. Detainees may also speak with their attorneys in the courtrooms with the permission of the judge. The facility was generally clean and sanitary. Some cells had visible, but minor, graffiti on the walls. The Grand Jury was told that maintaining a graffiti-free environment is a constant battle. The graffiti was from small pencils that, along with writing paper, are provided to the detainees. The Grand Jury observed wadded paper stuck to walls and ceilings near and occasionally on the surveillance cameras during the inspection. Staff advised that detainees often throw damp toilet paper wads at the ceilings or the cameras. The facility is maintained by an outside janitorial service. Each holding cell contained a television, but all were inoperable because the older equipment is not digital-compatible. The deputies said the incidence of graffiti and paper throwing increased when the televisions stopped working. According to staff, the cost of replacing them is unknown and the deputies believe that, within the constraints of limited funding, more important spending priorities exist. Twelve sworn officers, including deputy sheriffs assigned to each courtroom as bailiffs, staff the holding facility. Staff indicated that 15 sworn officers would better serve the facility, but funding issues currently preclude additional hiring (the funding allowance is 109
• CL26 Page 111
  approximately $100,000 per deputy sheriff per year, but actual cost is closer to $200,000 in salary and benefits). The Grand Jury was told that the lower staffing levels do not pose a safety risk to staff, court personnel, or detainees, but do cause minimal delays in the judicial process. In order to maintain safety, detainee transfers might take ten minutes instead of the usual two. Detainees may file a grievance by filling out a form that is available at the originating jail. They may appeal their grievance to the Alameda County Sheriff’s Office Internal Affairs Unit.
• CL27 Page 111
  The Grand Jury found that the Fremont Hall of Justice holding facility is generally clean, in good working order, and operated efficiently by the Alameda County Sheriff’s Office. ____________________________________________________________ FINDINGS None RECOMMENDATIONS None RESPONSES REQUIRED None 110
• CL28 Page 112
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• CL29 Page 113
  SAN LEANDRO TEMPORARY HOLDING FACILITY INSPECTION City of San Leandro Police Department Jail 901 East 14th Street, San Leandro, CA INTRODUCTION On October 18, 2016, the Grand Jury inspected the San Leandro temporary holding facility, formerly known as the San Leandro Police Department jail. The Grand Jury focused on inspecting the physical structure and individual cells; determining whether policies and procedures were in place and being followed; and confirming that security is adequate. The facility, built in 1968, is located in the basement of the San Leandro Police Headquarters at 901 East 14th Street in San Leandro, California. The San Leandro Police administration The facility is located in an re-classified the facility from a jail to a temporary older building that shows some holding facility as defined by the California Code of signs of wear, but otherwise the Regulations (15 CCR section 1006). Consequently, Grand Jury found it to be in good condition and well- inmates are held a maximum of 24 hours and an maintained. average of four to five hours while awaiting transfer to other long term facilities such as Santa Rita Jail or being released on bail. 112
• CL30 Page 114
  INSPECTION The temporary holding facility designation allows for some non-security staffing by police service technicians rather than sworn officers. The technicians also have other duties outside the facility such as code enforcement. However, administration of the facility, inmate intake, and inmate supervision are always priorities. The facility is located in an older building that shows some signs of wear, but otherwise the Grand Jury found it to be in good condition and well-maintained. No firearms are allowed in the jail. They are secured in gun lockers prior to entering the facility. The facility can hold a maximum of 32 prisoners. It contains 12 cells, with males and females detained separately, including two detox cells. Fire extinguishers were readily available. No detainees were present when the Grand Jury inspected. The cells were clean and well- lit with no visible graffiti or debris, as were the hallways and common areas, and each cell had a functioning toilet, working sink, and beds. Arrestees are booked in a central space where valuables are logged and stored. Detainees are fingerprinted and questioned about medical issues and gang affiliations. They are allowed to make three phone calls and can post bail from this facility. Detainees may speak with visitors in a specified area, separated by glass. Juveniles are sometimes booked at this facility but, if being further detained, they are sent to the Alameda County Juvenile Justice Center (Juvenile Hall) as soon as possible after processing. At least two employees escort detainees during transport. Arrestees who demonstrate or report medical or mental health issues, particularly communicable diseases such as tuberculosis, are transferred to an appropriate medical facility. Fire department EMTs are dispatched to the facility immediately if there are serious emergency conditions. Arrestees are given a toothbrush, soap and shampoo upon request. Linens are also provided, and the Grand Jury noted that mattresses appear to be in good condition. Many detainees have spent long periods on the street with no hygiene, so they are offered showers upon arrival. Shower supplies were ample. 113
• CL31 Page 115
  Each cell contains a telephone. Arrestees are also allowed telephone access in the holding area. Although cells do not contain emergency call buttons, all cells are monitored 24/7 (from multiple camera angles) from a central dispatch room in the building. Snacks and sandwiches are provided to arrestees upon request. The Grand Jury observed well stocked food supplies. Arrestees can submit written complaints that are examined by the San Leandro Police Department Internal Affairs Division. As a temporary holding facility, no extra disciplinary measures are taken against arrestees. The California Board of State and Community Corrections (BSCC) last conducted an inspection in December 2015. Three compliance issues were noted relating to documentation of new policies and procedures for the change in status from a short term jail to a temporary holding facility:  Training records for all who supervise prisoners: the facility did not have training records to give BSCC in December 2015, but now have records showing that personnel receive substantially more training than is required. The Grand Jury obtained a sample of the training for an employee as evidence.  Staffing plan: at the time of our visit they had nearly completed a plan in a form required by BSCC.  Updated Policy and Procedures Manual: staff showed the Grand Jury the existing manual, but said that updating the manual had been put on hold until the installation and testing of new software in December of 2016. In mid-March 2017, the Grand Jury learned that the software had been installed successfully, updating of the manual was well underway, and the manual would be complete and available online to all staff by the end of April 2017. Most procedures and policies for operating a 72-hour facility will be left in place in case the facility changes back to that status. BSCC will re-inspect the facility once notified that the issues are remedied.

No Responses Found 2

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