Judge Upholds San Jose’s Bid to Replace Measure B

A judge this week upheld San Jose’s bid to repeal Measure B, voter-approved pension reforms that promised millions of dollars of savings but also sparked litigation from the city’s unions.

Santa Clara County Superior Court Judge Beth McGowen on Tuesday denied an attempt by former San Jose Councilman Pete Constant and others to block the city from replacing Measure B, which passed with 70 percent of the vote in 2012. Constant’s argument centers around the issue of whether voters were given the proper amount of control to change Measure B after the city went to the ballot to get it passed.

In the same hearing Tuesday, the judge also accepted a request from the San Jose Police Officers’ Association to invalidate the measure on a procedural defect. Per the POA, the city failed to fully bargain with its unions before placing it on the ballot four years ago.

After years of legal battles, San Jose agreed this year to invalidate Measure B with a negotiated pension plan. That will require bringing it back to the ballot this fall.

Mayor Sam Liccardo, who initially supported Measure B, applauded the judge’s ruling. City officials have said the agreement heading to the fall ballot stands to save taxpayers $3 billion over the next 30 years. It will also end lingering battles that have made it difficult for the city to recruit and retain police officers, Liccardo added.

“We will continue to move quickly to implement this agreement, which will culminate with a ballot measure in November where voters will be asked to approve key elements of the agreement and lock in protections to secure the savings," he said in a statement.

Constant’s legal team has challenged the ruling, according to the Mercury News, but the chances of the judge reversing the ruling are unlikely.

For more on San Jose’s pension settlement, click here.

65 Comments

  1. I would have assumed the timeframe for arguments about procedural defects would have expired long before now. Measure B critics (and I’m one) have legitimate complaints, but the Council’s decision not not honor its terms or spirit is disturbing.

    But this is the first round in a long legal challenge and expect SCVTP and Constant understood this when litigation commenced.

  2. What a Taxpayer $8,000,000.00 loss. They filed the challenge to Measure B years ago and let it sit. Now after $8,000,000.00 dollars they decide not to go back to the voters with their new Pension Fraud as required by Measure B but instead go to a Round Heeled Judge and have her rule on the original issue of the validity of Measure B which should have been the simplest thing that it is now. So Judge Bozo invalidates the vote of the people to control the fantastic Pension rip offs of the past and now turns the power to embezzle back over to the original embezzlers. The Taxpayers are now back where they started, in the Pension Toilet.

    BIG QUESTION, CAN THE SRBR NOW BE LITIGATED???????????? by reopening a dismissed without prejudice contract breech case??????????????????????

    • Nate (aka: Slade)

      It’s time to put your tinfoil and coat hanger hat back on and take your medication.

    • Your complaints are disingenuous. Or haven’t you noticed the increase in crime in San Jose due to the raping of the Police.

      There is hardly a week that goes by that I don’t see some speeder whizzing down Meridian Avenue, because they can get away with it. A while back after the police became understaffed I heard a motorcycle and a screech of brakes in front of our home and fully expected to find a dead motorcyclist in the nearby trees but by some mericle he apparently righted himself and kept going.

      I measured the skid marks which stretched by several houses and a 60 foot intersection and it was clear the speed was over 100 miles per hour.

  3. state and city workers are above the pigeons. Pension jobs are for city and state workers, Pigeon pension jobs were sent to china along time ago. If you want new roads, they will raise your taxes. voting doesn’t work.

    • Mr. Drocean,

      If voters are too apathetic to inform themselves on the issues then, as you said “voting doesn’t work”. Apparently though, neither did Measure B since all the experienced, career police personnel took their years of training and experience and are now working for agencies that somehow, miraculously, by some act of Divine intervention, are able to offer wages and benefits far superior to those offered by City of San Jose and these other cities are not going bankrupt. Go figure.

      Save your insults for those deserving of them, the bird-brains at City Hall.

      • > agencies that somehow, miraculously, by some act of Divine intervention, are able to offer wages and benefits far superior to those offered by City of San Jose and these other cities are not going bankrupt

        If those “agencies” are federal agencies or are linked to the federal gravy train they are essentially free of fiscal constraint and can pay anything that Keynesian politicians can dream about.

        The federal government gets money three ways:

        1. taxes
        2. borrowing
        3. printing.

        The dirty little secret is: Obama and his band of Keynesian lunatics don’t even need taxes. They can borrow and print everything they want to fund all the agencies and refugees and free college tuition they want.

        I’m all for market rate pay and benefits for public safety personnel. If, as the SJPOA claims there is an exodus of personnel to other cities and “agencies”, either San Jose is not offering market pay and benefits, or other “agencies” are paying above market.

        At the end of the day, the answer is that EVERYONE gets paid market rate.

        • Measure B was never meant to stand. That is why the litigation to nullify it was ruled on last. Leverage by putting it on the ballot, a ruling that reinforced the original status, now a get together to smooth out the new hire benefits and a promise to retain the $200,000.00 buy outs of sick leave and overtime (unsupervised) for retirement. All is back to normal with the City and it’s unions BANKING the taxpayer the same way thy did before. The new hires just can’t bang the taxpayers. SJPD is a Civil RICO organization.

      • Actually 4 cities in CA have gone BK including wealthy Orange County. The City’s last analysis “Current Status of Pension Systems and Retirement Reform Ballot (Measure B) Implementation Study Session” dated March 3, 2015 shows that we’re on the same trajectory. The retirement pension has more than doubled (40% of salary) in 1961 to current 90%. SJPD’s salaries have remained competitive during that time. Retirees are living longer, further compounding the liability. Our unfunded pension liability has grown from $27.3M (1983) to $645.5M (2014).

        Tough to justify the enormous increase in total compensation without a corresponding productivity increase. Agree, there are other sustainable alternatives. I’d like to believe, but Liccardo’s proposal isn’t one. The numbers just don’t work.

        An obvious savings would be to nuke SJFD paramedics as suggested by the IBM study. By law, EMS is a county responsibility and about 95% of SJFD’s calls are non-fire. Notice: 6 months to SCC. Savings: about $80M / year – more than double the proposed tax hike. More outsourcing is another – at all levels, not just public safety.

        At some point we need to give serious thought to career civil service. Virtually all private sector employers have abandoned the “job for life” mentality. Pensions made sense when public employees were paid much less than private industry counterparts. But that’s no longer the case for most. There are still some exceptions. Teachers are one that are underpaid by “work value” measurement comparisons.

        The transition is never easy – ask anyone in the private sector that been RIFed or seen their pension plans switched to defined benefit.

        Please provide specifics if I’m missing prudent and proven alternatives. Devine intervention isn’t an actuarial basis.

        • Axing SJFD paramedics would be a very bad idea. Recently I was at the scene of a medical complaint of a teen with an uncontrolled asthma attack at a school in the Monterey Rd/Capitol area. Although the local fire station was only about a minute’s drive from the school (literally, they are on the same street, in adjacent blocks), that fire station was committed to a call, as was the next closest one. The next closest available fire station responded from the Calero/Snell area, and it took about twenty minutes for them to arrive and begin treating the child.

          It took Rural/Metro about an additional TEN minutes to arrive on scene after that. Fortunately, by that time, the child had been stabilized and his parents had arrived and the child did not need transportation to the hospital.

          The point of this comment is not to impugn the SJFD which got there as soon as they were able, but rather to make the point that, as understaffed and overworked the SJFD is, they are still able to arrive in a more timely fashion that Rural/Metro which contract with the county has been (practically since the ink dried) and continues to be a fiasco. In the interest of saving lives the VERY LAST thing we should be doing is depending on Rural/Metro for paramedic duties. Rather, I think that the City should be suing the county for cost recovery since, time and again, it has been demonstrated that the County has failed to provide adequate paramedic services.

          • I agree that SCC officials deserve consequences for appalling Rural/Metro performance I(n addition to the jails). Residents of SJ and other cities that provide paramedic services are penalized twice by taxes to support municipal FD paramedics *and* County EMS.

            Compounding the problem, FDs are prohibited from transport. Their role is limited to first responder, and where implemented like SJ, paramedic treatment. AFAIK, SJFD does not have ER comm links for physician to assessment, treatment direction, or vitals telemetry (unlike much of western Europe).

            I’m a bit suspicious that Rural/Metro is less motivated in SJ and elsewhere where FDs have paramedics. They know FDs will respond, conduct an assessment, initiate treatment, and prepare the patient for transport if needed. Rural/Metro earns additional money (billed to patient) for transport. I believe their first-responder / treatment is funded via the SCC contract.

            Based on your description, seems likely that San Jose taxpayers funded asthma medicine (Albuterol?) and perhaps oxygen, a cannula, and other supplies. Rural/Metro would provide an expensive taxi if indeed transport was necessary. As I understand it, there’s no reimbursement to SJ regardless of the patient’s insurance coverage.

            In essence, it appears that Rural/Metro have no incentive to promptly respond – and many not to. But this is just a suspicion – haven’t not seen their response time or other performance metrics broken down for a meaningful analysis.

            Keep in mind that SJFD has ample opportunity for improvement too. They’ve made no significant progress toward implementing the City Auditor’s recommendations (11 years and counting). These include relying on SUVs for medical response instead of cumbersome rigs to improve response time and to lower cost. I seem to recall another recommendation to use motorcycles for medical response (as done in many non-US areas).

            I believe SJFD asserted they need to have 3 people: 1 for treatment, 1 for communication/data gathering, and a gofer to get equipment from the rig. That makes motorcycles unfeasible. Somehow many other EMS responders don’t seem similarly encumbered and their patient survival rates are better than ours.

            SJFD’s response time is poor compared to other SCC FDs and below their own target levels. Probably a combination of funding and poor leadership. Despite lower headcount, SJFD have incurred more scandals than SJPD and my sense is higher turnover at the command level.

            The example of a teen with an asthma attack is a good one. Makes me wonder if school officials could keep student-provided medicine on standby for emergency purposes. Asthma, diabetes, and allergies are not uncommon. Most can self-administer if their meds are available.

            Regardless, hope the teen has fully recovered and thank you & SJFD for your service.

          • OFFICERANONYMOUS,
            I can’t recall any instances (in annual reports, speeches, or news quotes) where an IPA head has spoken positively about SJPD. It must be disheartening to SJPD employees. Some cities have a review board. If the IPA were nuked, what might replace it i.e., how could SJ have better oversight?

            Also, how residents can show their support for SJPD? Will appreciate your thoughts on both items.

            While crime stats may be unavailable, insurance data might be. I was stunned to see my auto and homeowners cost plummet by about 50% when I moved from San Francisco to a few blocks past the city limits to Daly City. Will be interesting to see what I can find.

          • Taxpayer,

            I would be reluctant to ascribe lower motivation to the individual paramedics in terms of timely response. Rather, I would blame their management, and also the county supervisors who should have been seriously suspicious of how Rural/Metro proposed to seriously undercut AMR’s bid to provide identical services when that contract was being negotiated a few years ago and why AMR was so willing to walk away from that contract, rather than try to submit a new, less expensive proposal. In other words, the supervisors should have suspected that Rural/Metro’s offer was much too good to be true, been suspicious enough to delve deeper and also to included performance metrics to be met for the duration of the contract along with draconian penalties for failure to meet those metrics.

            At this point, I would say that there is enough documentation to support opening a new contract for paramedic services and suing Rural/Metro for breach of contract. Sadly, achieving some measure of accountability and consequences for the Board of Supervisors will be much harder to achieve. There is far too much voting based solely on party affiliation and far too little based on placing meaningful expectations for governance. Unfortunately, that seems to be a national phenomenon as well.

            With respect to the IPA, in this climate, I am not sure what answers to provide as there are significant problems with pretty much all oversight models. As always, politics tend to play a role and rarely is that role of benefit to the process. The first couple of IPA’s were pretty biased against law enforcement, but tended to be a bit more reasonable than Ladoris Cordell whose bias was obvious before she was hired and became far more so over the course of her tenure. It might be interesting to try a hybrid of the IPA and Civilian Review models and include one or more representatives from the PD and from the DA’s office in an advisory role.

            However, one thing that I know would be of benefit is for anyone working in the office of the IPA, heading that unit, or sitting on some kind of civilian review board to have to go through the same kind of Use of Force classes that all San Jose police officers do. Too often, perception of use of force – fatal or otherwise – is colored by an ignorance of established case law with respect to the use of force, and, unfortunately, the media does absolutely nothing to try to remedy this fact. Rather, it seems they are far more inclined to capitalize on public ignorance, on sensationalism and on the fury of advocacy groups in order to establish the relevance of media and to reinforce their role in shaping society, as opposed to practicing unbiased reporting.

            The Darren Wilson case is an obvious example of this to wit:

            1. Michael Brown committed a violent felony.
            2. Officer Wilson had probable cause to make an initial contact with Brown, based on Brown jaywalking.
            3. Brown attacked Wilson, committing a violent felony: assault with a deadly weapon (his physical force coupled with the asphalt being capable of inflicting great bodily injury, the statutory definition of ADW)
            4. Wilson responded to this life-threatening assault with deadly force
            5. Said use of deadly force and Browns death met the statutory definition of justifiable homicide AND a lawful use of deadly force as outlined in the Tennessee vs. Garner decision

            Had the media simply reported these facts in this case – or in other, similar cases – it would suck the wind out of these various anti-police movements, including the reprehensible Black Lives Matter movement. And, a more complete knowledge of this aspect of American Civics would be of benefit to EVERYONE.

  4. This is not enough. Any “Consultant” contracts Pete has with the city needs to be cancelled, and Pete needs to be encouraged to stay as far away from city hall as he can.

  5. SoSo,

    BWAHAHAHAHAHAHAHAHAHA???
    Again?
    Seriously?
    Year after year. Comment after comment. Always with the “BWAHAHAHAHAHAHA this” and the “BWAHAHAHAHAHAHAHA that”.
    Time for some new material dude.

    • Oh hey, John. Where ya been? Did I touch a nerve, dude? Year after year? Comment after comment? Exaggerating much?

      • It’s not you. It’s me. To be honest with you SoSo, it does touch a nerve. It’s just so smugly juvenile. Maybe I’m exaggerating. Maybe not. The “year after year” clause is accurate if you’ve done the BWAH… thing at least once in every calendar year dating back to 2008 and there’s a strong chance that you have. The “comment after comment” clause might be a little harder to support. It all depends on whether “comment after comment” is interpreted to mean consecutive or non consecutive comments- it all hinges on the makeup of the court. If Obama’s guy gets in he’ll probably side with you, the liberal.
        Anyway, we need the data. There’s only one way to get to the bottom of this and that’s to do a comprehensive review of SJI archives. Perhaps we could recruit Robert Michael Cortese to construct some sort of a searchbot algorithm. He’s incredibly clever- a tech genius- and could do it in a jiffy.

    • By the way…if it’s funny, I am going to laugh. This was very funny. If you don’t like it, then it’s just too bad. Go construct something.

  6. You should also point out the dismal turnout for the ballot measure when citing the 70 percent figure. I hope that more citizens make the effort to vote instead of just complaining on blogs.

    • > You should also point out the dismal turnout for the ballot measure when citing the 70 percent figure.

      Sitting home and not voting is also a vote: for the status quo.

  7. In an age when the mantra is that government act more like business, it was always crazy to enshrine employee compensation levels in the city charter. For this reason alone Measure B was a fatal move by the previous San Jose mayor and council. No private corporation would place limitations on employee compensation in its articles of incorporation or subject compensation policies to shareholder votes. As evidenced by the mass exodus of San Jose’s police officers and the inability to hire new ones, the elected leaders need the flexibility to make reasonable employee compensation decisions without voter approval, an extremely cumbersome and costly effort to both employer and employee. The effective nullification of Measure B is good thing. Another Charter amendment attempting to limit future councils’ ability to compete for employees in the market place is a bad thing. The best course of action for San Jose is to eliminate specific limitations on employee compensation and post-employment benefits from the Charter entirely.

  8. Taxpayer,

    — The retirement pension has more than doubled (40% of salary) in 1961 to current 90%.

    You are comparing apples and oranges. The original (1961) retirement plan allowed for retirement after 20 years (min. age 55 years) at 2.5% per year (50%). That ratio is exactly the same today. (By the way, in 1961 a modest 3 bedroom home was priced at less than half the number of police salary years it costs today.)

    — SJPD’s salaries have remained competitive during that time.

    How might one go about measuring the competitiveness of a salary (sans benefits) when it is total compensation that attracts job seekers? One thing for sure, San Jose has never matched the highest salaries offered in this county, let alone the Bay Area. Ask the hundreds of police officers who (prior to Chuck Reed) left better-paying departments to join SJPD and you’ll learn the department’s biggest draw was its reputation and working environment — both the products of its people.

    — Retirees are living longer, further compounding the liability.

    These changes did not escape the notice of the actuaries who annually examined the funds in service to both plan members and the City. It is incorrect to suggest that anything other than the mortgage meltdown snuck up on this city’s managers. They, more than anyone else, were aware of the decades of self-serving dealmaking and irresponsible budget decisions (that contributed to the pension crisis).

    — Our unfunded pension liability has grown from $27.3M (1983) to $645.5M (2014).

    The unfunded pension liability (SJ Police and Fire) halfway between the years you cited was zero or damn close to it, thus, it is misleading to depict it as a plan out-of-control due to its basic structure. In a bang for the buck comparison, the SJP&F pension has provided infinitely more value to this city than has any redevelopment scheme (how many billions squandered?), airport expansion, or immigration amnesty policy (the gift that keeps on costing).

    • The figures are all from the cited document and latest one I could find. It looks to be a Powerpoint presentation without comments and therefore tough to understand context or perspective. The document (page 13) gives 3% / year of service for Tier 1- not 2.5%. Thanks for the correction – the 1961 benefit was 50%, not 40%.

      I recall Deb Figone’s assertion that SJ strived for the midpoint of compensation by benchmarking bay area cities (SJ’s competition for public safety employees). My recollection is that CSJ came very close to that target.

      Page 18 gives top reasons the actuarial forecasts were optimistic. #1 is the rate of return (lower than expected), #2 is longer lives of retirees. The market crash may explain part or all of #1 – unclear from presentation.

      The Police and Fire liability figures (page 10) in 10 year increments gives only 1 point (1993) where liability was negative ($83.6M) i.e., the fund value increased faster than it was depleted. The other 10 year points show:
      2003 @ $172M; 2013 @ $788.5M and 2014 declining to $645.5M. While good news, it’s unclear if a single year variation (18% change) is a unique event or part of a long term reduction. Keep in mind these are cumulative, not point-in-time figures.

      As of 6/30/14, we owe $8.5B billion for promised benefits, but we only have $5.5 billion in trusts and pension funds for our obligations. Our current shortfall equals our annual 2014-15 ($3B) budget and appears to be increasing.

      CSJ appears to be scraping the bottom of the barrel for cash – selling assets such as undeveloped real estate and developed ones such as parking structures. But some, like the Plaza Hotel to homeless housing conversion, burden us even further. There’s still some financial runway left. We could sell parking meter revenue as Chicago did, franchise fees as others have, etc. At some point we exhaust options.

      Completely agree that our elected officials have squandered multiple opportunities to remedy the situation. Sadly, I see nothing that changes the unsustainable debt trajectory. Please let me know what I’m missing.

      • Could you please tell me where you got these numbers” as of 6/30/14 we owe $8.5 B but only have $5.5B”. would just like more information , thank you

  9. Taxpayer,

    The 1961 plan underwent a number of changes during its first decade, resulting in a plan that, with minimum retirement age of 55, paid 2.5% per year of service (max. benefit 30 years). This remained unchanged for another decade or two, before the minimum retirement age was lowered to 50 (for those with a minimum of 25 years of service).

    It would be a mistake to examine the history of the pension program without taking account of the external factors that affected its changes. These include pension enhancements in lieu of salary increases (the City’s buy-now, pay-later policy), as hiring incentives (to compete with higher-paying departments), and as political quid-pro-quo.

    Assuming the figure you cited is correct for the 2003 liability, what it represents is a major change (from the fully-funded late 1990’s) as result of two main factors: the dot-com bubble burst (which impacted the fund’s portfolio) and Ron Gonzales’s purchase of public safety’s support by way of a significant salary increase and pension enhancement (the convoluted 90% @ 30 formula), one that he paid for with public safety’s own pension fund. With this he created a disaster in waiting. While there was never a reason to suspect that the fund’s portfolio would fail to rebound from the dot-com hit (it had always done so in the past), there can be no question that Gonzales’s political shenanigans greatly increased the pension fund’s vulnerability to future events.

    As I have argued here for years, no matter your particular theory or perspective on the pension issue, the bottom line is this: as long as politicians are allowed to put their hands in the mix there is no form of compensation — salary or pension, that can be guaranteed safe from calamity. These self-centered idiots can ruin anything; just look what they’ve done to San Jose during the last half-century. This city has (and has had for decades), crumbling streets, neglected parks, bare minimum services, and less than half the number of cops it needs. Small wonder this city was spurned by the Super Bowl crowd. They know blight when they see it. Based on its infrastructure and fiscal health you’d think San Jose was stuck in the middle of the desert, not sitting amidst the biggest wealth-producing industry in the world.

    As for a remedy I see only one course of action: provide this city with the law enforcement manpower (cops, code enforcement, etc.) and priorities necessary to rescue our business districts and neighborhoods. Make the downtown attractive to entrepreneurs peddling something besides beer and burritos; use public safety to add value to office space, promote industry, not housing; utilize council powers to increase the tax base, not the homeless population. It will take time, and it will demand sacrifices (like shutting down city services that didn’t exist 50 years ago), but it is doable. San Jose needs to grow up.

    • Thanks for your perspective and for insight about Gonzales – wasn’t aware of those details.

      Some changes seem worthwhile considering. Last time I looked, I believe we had about 17 FTE SJPD officers staffing SJC at a rate below department cost. AFAIK, the SCC SO would be more cost-effective without compromising public safety. Soliciting bids from other law enforcement entities could be another option.

      SJ is subsidizing a couple of County schools with the SJPD-operated school crossing guard program. Not a huge amount of money – $1.5M/year, but seems like County and SJ schools should provide crossing guards as do most other school districts. Or pay SJPD as is done for parades and festivals.

      Ditto for card rooms and the proposed dedicated SJPD staff for marijuana store policing. Tough for me to understand why card rooms or MJ stores should require valuable SJPD resources. Based on crime stats bars, liquor stores, and convenience stores are more crime ridden.

      Last time I checked, neither the CSJ (nor functional units like SJPD) conducted climate surveys. I understand SJPD may conduct some exit-interviews, but a public records request was denied. I was told the department does not maintain statistical information and individual records are of course confidential. The HR department had no statistical records either. Very troubling since employee surveys can be incredibly helpful in attracting and retaining a skilled labor force.

      For the first time in about 30 years, CSJ has relaunched a modest employee suggestion program. But it’s received scant publicity – and am not sure if SJPD employees are eligible. Unlike say IBM where some employees have received 6 figure awards, I believe ours is capped at $5K regardless of savings. Still it’s something.

      I’m reminded of former LAPD chief and current NYC police commissioner Bill Bratton’s comment, “We cannot police ourselves out of a problem.” The homeless made St. James park repugnant when SJ was less populous and SJPD was substantially larger. But we lacked the political will to act. Likewise, statistics show a significant drop in arrests since Ferguson as FBI Director Comey points out. But no corresponding decrease in crime. It’s an extraordinarily tough time to be a cop – particularly one in SJ.

      • Taxpayer,

        You clearly have little to no grasp of the scope of these issues. The statistics you have been referencing regarding financial data are all Reed era and Reed derived. As the financial markets have recovered, so have the funds.. To what extent? No one knows because the data hasn’t been objectively analyzed nor distributed in the last two fiscal years.

        You must understand that with the current staffing levels of the police department, many calls for service are not being answered on a daily basis. The amount of crime that doesn’t necessarily have apparent Victims is out of control.. Things like financial crimes, narcotics, prostitution, wreckless driving etc.. You can’t gauge that sort of stuff, only it’s aftermath.

        • Steve Rogers,
          Taking the points in order…
          a. I don’t doubt that my grasp is imperfect. But rather than simply leveling criticisms, please provide sources that that help to illuminate and elucidate.

          b. The report was prepared well after Measure B and served as the basis for the most recent (2015) Liccardo led study sessions. I can’t speak to its accuracy or parentage – only that it’s the latest I could find.

          c. Fund performance opacity. I agree – and it’s shameful. I could not readily learn how well the funds are performing (and I was a fund performance analyst in the late ’70s). Did find a highly critical report from 2014 http://www.sanjoseinside.com/2014/03/19/report-lambastes-city-for-poor-investment-performance/ The board’s next meeting is April 21 https://www.sjretirement.com/Uploads/Fed/Fed%20-%20Board%20schedule%202016.pdf I’d be raising hell and demanding union reps act were I a current or retired employee.

          d. Crime measurement. Haven’t seen any updates since Reed’s last State of City address, but recall that Priority 2 response time was > 2X the target of 11 minutes (which was high compared to many other urban departments). Conveniently, San Jose Open Data initiative fails to include response time or other meaningful public safety performance statistics.

          • I believe that I recall the report to which you refer and, IIRC, at that time, while the public safety pension fund was managing something around an 8% ROI, PERS was reporting an 18(!)% ROI.

            With respect to crime statistics, the lack of opacity in this regard is just as shameful and self-serving as the lack of opacity with respect to pension fund performance. There is absolutely no way to catalog or identify crimes that are NOT reported and CSJ has all but actively discouraged reporting of property crimes and traffic-related crimes. Same thing with non-injury traffic collisions. It’s very easy for politicians to assert that the city of virtually as safe as it ever was because of how many fewer crimes are being reported.

            I think it would be equally damning, though, if we were able to learn the statistics related to officer-initiated enforcement actions. On the other hand, considering the nearly nation-wide anti-police climate, the damnation might be equally heaped upon the decline in manpower AND the widespread anti-police climate which is fostered by national activist groups, local groups like deBug, CSJ’s own office of the IPA – most notably under the leadership (dare I use that term?) of LaDoris Cordell, but also under every so-called head of the IPA since its inception – as well as the feckless political creatures who seek to buy votes by siding with those groups and fostering ongoing animosity between racial minorities and one of the most professional police departments in the nation.

          • “With respect to crime statistics, the lack of opacity in this regard is just as shameful and self-serving as the lack of opacity with respect to pension fund performance.”

            I think you mean “transparency”, not “opacity”..

    • Difficult to manage when the draw for prospective Police recruits WAS the Department. When you have the ability to fill 30 positions for an academy, and are only capable of drawing 6 recruits…there is a problem. When you have to fire 2 of them because of various reasons, there is a problem. The Police and Fire Departments have not hired their own personnel for years. The City bureaucrats hire the Police and Fire personnel lately, and do not screen for CAPABILITY.
      This is a sad state of affairs for these Departments. To be gutted, scapegoated, spit on (figuratively) by the citizens of the City in which they work, and no longer able to hire their own personnel….what did we think was going to happen? If you dont think the reputation of the Police and Fire Departments are out there…think again. The potential recruits certainly are. The biggest mistake that the Citizenry have made is thinking that they know better how to run the Police and Fire Department better than the professionals do. Make no mistake, you know as much about running a Fire and Police Department as most of them know about writing computer code.
      Stick to what you know best….

  10. > The amount of crime that doesn’t necessarily have apparent Victims is out of control.. Things like financial crimes, narcotics, prostitution, wreckless driving etc..

    It would be a courageous act of journalism for the SJI staff to mention how much crime has increased post Proposition 47.

    “Proposition 47, also known by its ballot title Criminal Sentences. Misdemeanor Penalties. Initiative Statute, was a referendum passed by voters in the state of California on November 4, 2014. The measure was also referred to by its supporters as the Safe Neighborhoods and Schools Act.”

    “Safe Neighborhoods and Schools Act.”

    HA!

    HAHAAHAHA!

    BWAHAHAHAHAHAHA!!!!

    More like the “Help Yourself to Anything Less than $950 Act”.

    • SJOTB,
      To expand on your point, most handguns cost less than $950. Despite the NRA’s encouragement for stricter consequences, our Sacramento electeds declined to enact stronger penalties for gun theft. No support from Lt. Gov Newsom or AG Harris either.

      • Interesting.

        Maybe one of the public safety officers in earshot would enlighten us regarding how frequently handguns costing less than $950 are stolen and what happens to the perps.

        • That would be an interesting data point if we could report it with any hope of accuracy. But then the question becomes one of whether or not burglaries and thefts are being reported consistent with rate of incidence and to what degree firearms are stolen in in those crimes. Most readily available handguns – and a number of rifles and shotguns cost less than $950 and would therefore fall under that threshold set by Prop 47. And, considering how anti-gun Newsom and Harris are, I suspect their intransigence has much to do with creating a perfect storm climate to engender broad public support for widespread limitations on gun ownership overall despite recent Supreme Court decisions affirming a broad right to gun ownership by eligible (non-felon, adult) citizens.

          • Wow! Very interesting!

            This is kind of like a “reverse gun show loop hole”.

            The gun grabbers have been whining like banshees to “close the gun hole loophole” by forcing all gun sales to be handled be dealers and documented.

            But raising the misdemeanor theft limit to a cost above the price of most guns results in most gun thefts going unreported!

            One wonders, if the “gun show loophole” were closed, requiring all gun show sales to be documented, wouldn’t it be logical to also close the “gun theft” loophole, requiring all gun thefts to be documented and reported by the perp.

            Progressives are really hypocrites. But everybody knew that already.

        • SJOTB, I’d like to correct your comment about the so-called gun show loophole. The law controls transactions of firearms between buyers and dealers as well as between private parties. The specific venue is irrelevant. Both buyers and sellers MUST comply with the law, even at gun shows.

          To date, the most conspicuous violator of the laws governing firearm transactions remains, to my knowledge, the AFT in Fast and Furious.

          • > The specific venue is irrelevant. Both buyers and sellers MUST comply with the law, even at gun shows.

            Well, it still looks to me like there is a big loophole.

            A gun changes hands.

            “Buyers and sellers MUST comply with the law”.

            But a perp and a victim are subject to, at most, a “Prop 47 citation”, which, I understand is equivalent to a loss of allowance for a week and a stern admonition. (Presumably, the victim is admonished for not keeping his guns locked up.)

          • SJOTB,
            OfficerAnonymous’ point about Fast & Furious (as the recent court-ordered DOJ records disclosure confirms) is correct from a larger perspective too: failure to enforce existing laws. The cops do their job, but those responsible rarely face any significant consequences.

            About 6%-8% of guns used in crime were legally acquired. And the associated crime is almost always domestic violence or mental health related. Most firearms used in other CA crime originate from ‘friends and family’ – not from theft or so called loop-holes. Friends and family are rarely penalized unless in a high-profile instance like the San Bernardino shootings.

            Prosecutors assess winning and expense. It’s tough to send dear sweet granny away for 5 years because she gave her gang-banger relative a pistol. And he killed 3 innocents in a drive-by. Or she made a straw purchase because little Johnny’s criminal past would prevent him buying one. Or the DA offered a deal to drop the gun enhancement charge in return to a guilty plea on another charge.

            Wise outcomes? Undecided; there are arguments to maintain the status quo and for stiffer consequences. But it must be very frustrating for cops given the high rate of recidivism.

            Parents are almost never prosecuted in child-related firearm discharges. The “50 children a day involved in shooting incidents” claim shrinks to a small number when 18-24 year old “children” are excluded. And a vanishingly small number when 13 to 24 are excluded. The vast majority are gang-related using illegally obtained firearms.

            Data is readily available from the FBI, ATF, and (US DOJ) Bureau of Justice. Gun Facts http://www.gunfacts.info does a good job of curating data from credible sources.

  11. Bubble,

    Hands off Prop 47… it was endorsed by former SJ police chief William Lansdowne, whose professionalism and objective knowledge of public safety issues is surely reflected in his annual police chief pensions (3) totaling at least $345,000 a year. If a man like that says its safe to set career criminals free to roam the streets (of lesser neighborhoods than his own), who are we to doubt it?

  12. Taxpayer,

    The theft of a firearm has always constituted grand theft, regardless of larceny’s dollar threshold.

  13. Bubble,

    I have read summaries of Prop. 47 that suggest otherwise (without singling out firearms), but PC 490.2, as amended, reads:

    “Notwithstanding Section 487 or any other provision of law defining grand theft…”

    And PC 487 still lists theft of a firearm as grand theft.

    • If correct, wouldn’t that make AB150 (which failed to exit committee in Jan) completely unnecessary? AB150 was also endorsed by several CA law enforcement groups and various newspaper editorials.

      Defense attorneys cite the change too http://www.shouselaw.com/grandtheft-firearm.html as does anti-gun group Law Center To Prevent Gun Violence. Surprisingly, they took a neutral stand on AB150.

      My previous, but similar response is waiting moderation. This expands on it.

  14. Taxpayer,

    The penal code I referenced is the state’s online version, available at:

    http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PEN&division=&title=13.&part=1.&chapter=5.&article=

    (Of course, it wouldn’t be the first time the state disseminated incorrect information)

    Grand theft is theft committed in any of the following cases:

    (a) When the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950), except as provided in subdivision (b).

    (b) Notwithstanding subdivision (a), grand theft is committed in any of the following cases:

    (1) (A) When domestic fowls, avocados, olives…

    (B) For the purposes of establishing that the value of domestic fowls, avocados, olives…

    (2) When fish, shellfish, mollusks…

    (3) Where the money, labor, or real or personal property is taken by a servant…

    (c) When the property is taken from the person of another.

    (d) When the property taken is any of the following:

    (1) An automobile.

    (2) A firearm.

    (Amended by Stats. 2013, Ch. 618, Sec. 7. Effective January 1, 2014.)

    PC490.2

    (a) Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.

    (b) This section shall not be applicable to any theft that may be charged as an infraction pursuant to any other provision of law.

    (Added November 4, 2014, by initiative Proposition 47, Sec. 8.)

    • Finfan,
      Thank you for the citations. Please see Section 490.2 (page 28) of Prop 47 – Safe Neighborhood and Schools by Ret. Judge Couzens and Presiding Justice, Court of Appeal, 2nd Appellate Bigelow, dated Feb 2016 at http://www.courts.ca.gov/documents/Prop-47-Information.pdf It’s the most recent impact analysis of Prop 47 and provides guidance to CA judges. Prop 47 became effective on Nov 5, 2014.

      The guidance identifies instances that are deemed “wobblers” (could be a felony or a misdemeanor), some where different opinions are under appeal and require an appellate court decision, and some where the application of Prop 47 is unencumbered. The guidance for firearms theft seems clear: “For example, theft of any firearm or automobile was grand theft under section 487(d); the theft of any property “from the person” was grand theft under section 487(c). Now, these crimes will be misdemeanors unless the value of the property taken exceeds $950″.

      I don’t claim to have any insight. It’s entirely possible that other Penal Code provisions may qualify this claim. But that doesn’t appear to be the situation. The guidance is only a couple of months old and unlikely it’s been deprecated.

      Expert judges, gun rights groups, notable CA firearms lawyers (e.g., CD Michele and San Jose’s Don Kilmer), many defense lawyers, law enforcement, newspaper editorials, members of the Assembly, and anti-gun groups are aligned. All assert Prop 47 has changed how gun theft is treated if the value is doesn’t exceed $950. I haven’t found any contrary claims.

      Hope this helps and thanks again for the citations.

    • FINFAN, TAXPAYER:

      Thank you for the research and analysis.

      My takeaway is that the situation seems to be legally ambiguous, which is a problem for a society based on constitutional rule of law.

  15. Taxpayer,

    What is interesting is that in the analysis you cited the word notwithstanding has been interpreted to mean exactly the opposite of what it means (and has traditionally meant) in section 487(b) of the penal code.

    In 487, subsection (b) was written to convey that despite the existence of the dollar threshold listed in subsection (a), grand theft is committed in any of the following cases: person, vehicle, gun, etc. As intended and applied, subsection (b) did not eliminate subsection (a), it instead listed the exceptions to it.

    In the analysis you cited, notwithstanding is interpreted to mean that despite the existence of section 487 (and its definitions) the theft of any property valued under $950 constitutes petty theft, thus eliminating 487(b).

    So, the first question is, does the word “notwithstanding” open up an existing law for exceptions, or does it terminate its existence?

    Second question. If he intent of the law was to supersede 487(b), why was this not conveyed in the wording? This could’ve effectively been done in one sentence.

    Third question. Were the proposition’s backers (such as our DA, former chief, etc.) aware that the new law would reduce to misdemeanors bold and daring career criminal-type acts such as pocket picking and purse snatching, jewelry and cellphone grabs? If so, maybe they should’ve campaigned their “reform” under the banner, “The Open Season on Grandma’s and Geeks Act.” However, if they weren’t so aware, then let’s hear them stand up and explain why they would lend their names (and official prestige) to something so important without really understanding it?

    • Finfan,
      Agree with your points. Unable to offer any insights other than to observe such shenanigans aren’t uncommon. Initiatives and legislative bills often mean the opposite of their title. Or as you identify, are deliberately ambiguous. It provides convenient air cover for politicians whose chief job is reelection – not prudent legislation.

      Prop 47 is a good example of legislative legerdemain. At its core, Prop 47 is less about safe schools and neighborhoods than about reducing CA’s overcrowded prisons and criminal justice backlog.

      Gavin Newson’s gun control initiative is another example. It would be banned were truth in advertising required due false and misleading claims. But most voters just react to a title – not the ingredients.

  16. Taxpayer,

    It is one thing for me to be confused about what constitutes a misdemeanor or felony, but quite another for law enforcement to be left without a clear reading of the letter of the law. How many San Jose police officers would you imagine have received the training necessary to accurately apply the law covering felony larceny? My guess is none, and I would venture to say that the police chief himself would stumble if quizzed.

    And you know, knowledge of the law is really quite important. Other than warrant execution, officers cannot arrest for a misdemeanor not committed in their presence. Thus, an arrest based on felony requirements for an act that has been reduced to a misdemeanor constitutes an unlawful arrest.

    What, I wonder, has Prop 47 supporter Jeff Rosen — the chief law enforcement officer of the county, done to prevent these unlawful arrests? I would assume that, had he done even the minimum, the many police officers on this site would’ve shared his interpretation.

    Finally, Prop 47, like pretty much every other such reform, is really about finding a way to reduce law enforcement’s (or civilization’s, by my reading) impact on Hispanics and Blacks — the only two groups “of color” that seem hellbent on cornering the market on street crime.

    • > Thus, an arrest based on felony requirements for an act that has been reduced to a misdemeanor constitutes an unlawful arrest.

      Yikes! Sounds like an effing mess.

  17. Fin Fan,
    You raise an interesting point and far beyond my expertise i.e., law enforcement procedures, training, and testing. I believe SJPD officers must undergo periodic firearms certification, but am generally ignorant of other policing matters.

    My guess is not much has changed vis-a-vis Prop 47. An officer could arrest me were there grounds. S/he wouldn’t necessarily know if I stole something worth $950 or below (a misdemeanor) or greater (a felony). I believe the decision to charge me, and under what statue(s), is up to the DA.

    Please note that arrests are mentioned in the SJPD Duty Manual http://www.sjpd.org/Records/DutyManual.asp . The language covers arrests for felonies and misdemeanors. I seem to recall some PD criticisms for petty offense (jaywalking, littering, loitering, etc.) arrests or detentions and believe officers have broad discretion about when to warn, cite (ticket), or arrest.

    One or more officers responded here that arrests for some violations are currently discouraged by SJPD command staff. Understandable given SJPD’s shrinking force as I believe an arrest takes a cop offline for at least an hour.

    • My personal experience has been that an arrest takes an officer out of service for a bare minimum of an hour. Many times, it is more like a couple of hours if there is any investigation to be done. The suspect must be interviewed, his biographical information recorded, and he has to be processed in at the main jail. Often, booking the suspect takes at LEAST a half hour, and I have personally spent hours down at the main jail waiting to book a suspect, and I know for a fact that this is not an irregular occurrence.

      As to the question of theft of a firearm being a ‘wobbler’, the way I was trained to treat wobblers (and there are other crimes which were ‘wobblers’ as well) was to book the suspect for the felony and then, when the DA’s office would review, they would make a determination about whether to prosecute the crime as a felony or misdemeanor.

      That being said, my personal belief is that the vast majority of gun-related crimes -from simple Brandishing to Assault with a Deadly Weapon, to Murder should be prosecuted as a felony with draconian mandatory sentencing.

      Further, I think that our entire criminal justice system -from vehicle code to penal code to the health and safety codes which govern drug crimes – have become needlessly complex – byzantine, even – and that this is a major contributor to recidivism. Convicted of a traffic violation? Pay the state fine. Pay the court imposed multipliers, and then pay court fees. Convicted of a crime? Maybe you’ll go to jail. Maybe you’ll do community service. Maybe you’ll pay a fine. Maybe you’ll do all three. Maybe you’ll go to state prison, or pay a fine, or do both. Criminals have no idea what their consequences could be or will be, and, frankly, it seems like half the time no one in the court room actually knows either until the plea agreement is articulated or the sentencing is handed down.

      What we really need is a body of laws which is simplified and which clearly and specifically states what the penalties are for violating these laws and which clearly and specifically delineate even what those penalties might be if the suspect pleads guilty to a crime in exchange for a reduced sentence. And, for some of those crimes, the sentences need to be truly draconian as a deterrent.

      • OFFICERANONYMOUS

        Here’s a hypothetical situation. I would appreciate it if you could describe what typically happens:

        I meet a guy at the health club and we talk about sports. He lives nearby, so I invite him to my apartment to see my collection of sports memorabilia.

        He shows up with two “friends”, we spend twenty minutes talking sports, and then they all leave.

        Three days later, I discover my 32 caliber handgun is missing. I kept it on a bookshelf behind a stack of books.

        I call the police and report a theft of a handgun valued at $500.

        What happens?

  18. Just for clarification, my concern about gun theft’s classification has nothing to do with it being a wobbler, it’s about its being a mystery. As example, consider this scenario:

    After checking out of a hotel room a police officer realizes he left his pistol in the room, hidden under a pillow. After the passage of only one-half hour he is back at the room, finds a maid making the bed, and discovers the gun is gone. The maid is evasive and uncooperative, states she never saw a gun, and attempts to leave work, claiming sick. The officer concludes the circumstances (locked room, hidden gun, brief passage of time, etc.) constitute probable cause to arrest the maid and does so.

    If gun theft is still a felony the arrest is lawful; if not, if Prop 47’s confusing language is deemed to have reduced the crime to a misdemeanor, then the arrest is unlawful, and the maid (who, while jailed, suffered so much emotional pain that she can no longer make a bed and is thus unable to support herself) can sue for damages (while LaDoris Cordell blasts the police department for its attitude towards “undocumented workers” and poor training).

    • Fin Fan,
      A more likely instance are new restrictions in Newsom’s initiative.

      Scenario: Assume I keep firearms in a container (could be locked or unlocked) tucked away in my home’s attic, garage, basement, outbuilding, etc.. Haven’t been shooting much and they’ve been undisturbed for months (or years). At the wife’s urging to clean up, I decide to take a look. And one (or more) is missing.

      No recollection by any family member. Maybe my memory is faulty. What do I do?

      Under Newsom, I’m at risk for prosecution because I failed to report the loss within 3 days of disappearance. “Didn’t know” isn’t a valid reason. The language includes “should have known [of loss].” Unless I’m conducting daily inventory checks, I’m at risk. See https://www.nraila.org/articles/20160101/how-gavin-newsom-s-initiative-will-flatten-california-gun-owners

      Will Newsom’s language prevail? Don’t know. But it potentially criminalizes a class of some of the most law-abiding people I’ve met. And without *any* tangible public safety benefit.

  19. After the pension fiasco, Reed has now picked up a new project by screwing medical marijuana patients. He just pocket over $500,000 to help close San Jose dispensaries. Vote YES on Measure C.
    SensibleSanJose.com