Oakland Residents for Peaceful Neighborhoods

ORPN Plaintiff's amended filing (excerpts)

PRELIMINARY STATEMENT

Petitioner and plaintiff, an Oakland resident, homeowner, and taxpayer, asks that the court compel the City of Oakland to cease its violations of voter-adopted City ordinance and California statute governing the collection and expenditure of special taxes.

The City submitted Measure Y to voters on the Nov. 2, 2004 ballot. In return for special taxes, the City committed to provide at least 63 additional police officers. In order to deflect charges that general fund support for police officers might be reduced at the same time, the City further committed to maintain 739 officers from non-Y funds during any fiscal year that it chose to collect the Measure Y taxes.

The City began collecting the Measure Y parking tax surcharge on Jan. 1, 2005 in the 2004-05 fiscal year. The City Council is also collecting and spending the Measure Y parcel and parking taxes in the 2005-06 fiscal year. In both fiscal years the City failed to meet the police staffing requirements of Measure Y. While collecting the special taxes during these fiscal years, the City is unlawfully transferring appropriated but unspent funds for 739 officers, as well as the Measure Y funds not spent on at least a total of 63 officers, to unknown other uses.

The City's illegal collection and spending of Measure Y taxes, in addition to violating the ordinance itself, would, if not reversed, also render the statutory conditions on special taxes meaningless.

FACTS

A. Measure Y Imposes A Pair of Police Staffing Requirements For Collecting and Spending Special Taxes

The City Council of Oakland submitted a proposed ordinance, Measure R, to voters at the March 2, 2004 election. The measure would have imposed a parcel tax, specifying twelve "objectives" or uses for the tax money. Measure R divided the money by percentages: 40% to Police Department objectives (four of the twelve uses), 40% to six categories of "social programs," and 20% "for jobs and job training programs"

Voters rejected Measure R. The focus of public discussion was the lack of peaceful streets in Oakland, the need for more police officers, and Measure R's failure to provide a definite guarantee of more police officers. (For example, "Measure R: Antidote for Crime?", East Bay Express, Feb 25, 2004)

By June 29, 2004 the Council considered a draft revision of Measure R for the November 2004 ballot, where it would become known as Measure Y. The draft authorized several uses of the special taxes: "The additional tax proceeds raised by this ordinance may only be used in accordance with the following purposes: 1. Expanding community policing; including the hiring of 63 new police officers;..." The draft contained no language about maintaining police officers from other funds before allowing collection of the special taxes.

The Council, told that the draft would suffer the same defeat as Measure R, directed staff to make further revisions. By the second week of July 2004, the City had prepared a subsequent draft for the November 2005 ballot, where it would become known as Measure Y. This draft closely approximated the final text, which voters passed on November 2, 2004.

Measure Y imposes a parcel tax and increases the parking tax from 10% to 18.5%, specifying three purposes for use of the tax money: "Hire and maintain at least a total of 63 police officers" (Part I, Section 3); social programs similar to Measure R; and several specified uses of money for fire services, despite their lack of relevance to the putative subject of the ordinance, violence prevention.

The measure does not divide the tax money among the three objectives by percentages. It does specify that social programs must be "not less than 40%" of the spending for the first two of the three uses. (Part I, Section 3, item 5) Rather than specifying a percentage of the tax money for police officers, however, the measure imposes a pair of numeric staffing requirements. One is that the City must hire and maintain at least 63 police officers with Measure Y funds. The other requirement, truly extraordinary in a tax measure, is a prerequisite on the collection (and hence expenditure) of the taxes:

"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 (739)." (Part II, Section 4)

The pair of personnel requirements reflect the structural fact that Measure Y levies special taxes for a use that is otherwise indistinguishable from a major use of any large City's general funds, namely, maintaining police officers in service of public safety. Measure R would have allowed spending on social programs at the same time that the City might reduce total police staffing, adding a few officers with Measure R money while shrinking general fund expenditures for police officers. Measure Y not only thwarts such reduction but also stops the flow of its funds to all its uses, including social programs, if the police staffing provisions are not met.

A tiny but important difference between the draft of July 8, 2004 and the final text demonstrates how Measure Y evolved in response to critics who perceived the Council evading a firm increase in the number of police. The final text of Part II, Section 4 quoted above revises the preceding draft simply by adding the concluding "(739)." As of June 30, 2004 the number of police officers among "actual police employees" was 734. On one hand, the council adopted almost the lowest possible figure, 739; indeed, 739 may have been the most recent figure available to the Council at its July 20, 2004 meeting. On the other hand, the council did specify a definite number. The number was close to the actual number of employed officers. In this context, the requirement "to maintain" the number of officer employed was consonant with the actual situation. However the City, as shown below, condemned the number of employed officers to decline within the next several months.

The fact that Measure Y is a revision of Measure R is also exemplified by a comparison chart between the two measures published by Council member Jean Quan, the public leader of the campaign to pass Measure Y.

The City Council submitted the revised ordinance to voters at the Nov. 2, 2004 general election.

B. In the Campaign Debate Over Measure Y, the City and Council Members Affirmed the Integrated Pair of Police Staffing Requirements

During the campaign leading up to the Nov. 2, 2004 election, a major controversy arose over the number of police officers Oakland would have if Measure Y passed. Opponents charged that the City would not provide 802 officers (the sum of 739 plus 63) even if given the Measure Y taxes. In response, the City of Oakland published a fact sheet that prominently summarized, "Additional Programs and Services. 63 sworn police officers, bringing total sworn strength to 802." The City also declared near the beginning of a question-and-answer document published on the City's website, "The measure will add 63 sworn police officers for community policing, crime reduction, and targeted focus on truancy and school safety; domestic violence and child abuse, bringing the total strength of the department to 802 sworn officers."

Council member Quan stated several times that Oakland would have 802 police officers. In a chart comparing Measure R with Measure Y, Quan said of the latter that it "Guarantees 63 additional officers above current budget for 739."

In a public letter on Measure Y, Quan wrote, "This Measure guarantees that the current budgeted number of police 739 must be funded before Measure Y is enacted. In short this brings the total number of police to 802."

The Oakland Tribune reported, "Despite the concerns, the money raised by Measure Y will be used to expand the department to 802 officers, Quan said. 'All of us have to run for re-election – none of us would break such an obvious promise,' Quan said." (October 10, 2004; underlining added)

Writing an opinion piece in The Montclarion newspaper, Quan stated, "Measure Y adds 63 police officers above the 739 now budgeted and mandates assignment to community policing and violence-prevention duties:..." (Oct. 29, 2004)

On Oct. 29, 2004 Council member Quan sent a broadcast email:

"These are the most common questions I have received:
"Will Measure Y really guarantee 63 more officers?
"Yes. The [opposition] mailer ... claims that no additional officers will be added. However, this is what the City Attorney's analysis says: 'The permitted uses of the revenue are community and neighborhood policing (hiring and maintaining an additional 63 police officers above the currently budgeted 739 officers), violence prevention services with an emphasis on youth, and fire services.' As the maker of the resolution introducing Y, I can tell you that I worked with the Community Policing Advisory Board to shape language that would set the current staffing as the floor in the general fund budget, a 'prerequisite', before the '63' additional officers and other Measure Y programs could be funded. ..." (Broadcast email from jean@jeanquan4council.org, Friday, October 29, 2004 2:03 PM)

Council member Danny Wan (since resigned), an attorney admitted to the California bar, issued a public statement insisting on the integrated, additive character of the two personnel requirements in Measure Y:

"Allow me to outline what Measure Y proposes to do. Below each component of the measure, I describe the research and community need that support each part of MEASURE Y.
1. MANDATES THAT EACH AND EVERY NEIGHBORHOOD OF OAKLAND WILL BE ASSIGNED A POLICE OFFICER SPECIFICALLY ASSIGNED TO WORK WITH RESIDENTS OF THE SPECIFIC NEIGHORHOOD. GUARANTEES A MINIMUM OF 802 OFFICERS CITYWIDE EACH YEAR (currently, Oakland has 729 officers)." (underlining added)

Another prominent campaigner for Measure Y was the chairman of the City's Community Policing Advisory Board, Mr. Don Link, appointed by the Mayor. By information and belief, chairman Link, a vigorous campaigner for the measure, was in close contact with Council members about all aspects of the Measure Y campaign. He wrote, "The ordinance and Measure Y clearly state that it is 739 plus 63, .... The language is there, the safeguards and circuit-breakers, which cut off funding if the Measure's stated requirements are not met, as well." (underlining added).

C. Less Than Two Months After Passage of Measure Y, the Council Violated Its Requirements for Police Staffing

Measure Y passed at the Nov. 2, 2004 ballot. Within four weeks, on Nov. 29, the City Council held an all-day budget workshop. According to official notes, the lead campaigner for Measure Y, Council member Jean Quan, insisted, "Police may be a priority, but not to give more money."

Collection of Measure Y's 8.5% parking tax surcharge began on January 1, 2005. The City estimated revenues from January through June 2005 to be "up to 3.8 million" dollars.

The Council began to collect the parking tax surcharge despite the fact that the City employed well under 739 officers: 704 as of Jan. 5, 2005; had maintained its 2002 police hiring freeze until November 2004 or later; had hired no officers except a new chief of police; and had started no police hiring academies. By information and belief, the City never made an official finding (which would have been contrary to the facts) that it satisfied the prerequisite requirement in Measure Y when ordering collection of the parking tax surcharge for 2004-05.

D. The City Kept Police Support Staff Below Authorized Strength

1) The mid-year budget of the 2004-05 fiscal year authorized 73 dispatchers, but the City employed only 62 as of May 4, 2005. 2) The same budget authorized 64 record specialists, but there were only 53 employed as of May 4, 2005. 3) The same budget authorized 37 service technicians II, but only 29 were employed as of May 4, 2005. In total, the same budget authorized 434 non-sworn employees of OPD, but only 380 were employed as of May 4, 2005.

Although some of these positions require lengthy training periods, the City did not prepare support for a police department of 802 sworn officers in 2005-06. Indeed, by information and belief, the City deliberately kept staffing below the number of positions budgeted as support for 739 officers. For example, during the Spring of 2005, the Police Department was able to hire three dispatcher candidates from an old hiring list. (The list was old because the Council imposed a hiring freeze on the department early in 2002.) The department moved to create a new hiring list in order to hire the eight additional authorized dispatchers, but according to a dispatch supervisor, the process of creating this list was stopped "from above." (Response to audience questions by dispatch supervisor Regina Harris at meeting of Allendale Neighborhood Crime Prevention Council, May 18, 2005. Petitioner was at the meeting.)

E. The City Began the 2005-06 Fiscal Year with Police Staffing Below Authorized Strength

As of July 13, 2005, the City employed only 697 police officers. Council members De La Fuente and Quan and police chief Wayne Tucker appeared at a July 6, 2005 hearing of the Community Policing Advisory Board whose sole topic was Measure Y. All three officials stated that the City would not have 802 police officers by the end of the fiscal year, June 30, 2006.

F. The City Ordered Collection of the Measure Y Parcel Tax for the Fiscal Year 2005-06

The City passed an ordinance ordering collection of the parcel tax for 2005-06. The ordinance makes no finding that the City obeyed the prerequisite requirement to maintain 739 officers with non-Y funds. This ordinance also does not order collection of the parking tax surcharge for 2005-06; petitioner finds no other ordinance so ordering.

The City estimates revenues in 2005-06 of $12.2 million from the parcel tax and $7.4 million from the parking tax surcharge. General fund revenues are estimated to be $545 million.

CLAIMS FOR RELIEF

FIRST COUNT
Writ of Mandate
Spending taxes in violation of City law, 2005-06

Respondent began collecting a parking tax surcharge allegedly authorized by Measure Y from Jan. 1. 2005, some portion of which is budgeted for expenditure in fiscal year 2005-06. Respondent has budgeted expenditure of Measure Y parcel tax receipts in its budget for fiscal year 2005-06. This expenditure is illegal according to Measure Y, approved by the voters on November 2, 2004.

A. Measure Y Imposes a Requirement to Hire and Maintain 802 Sworn Police Officers If the City Collects and Spends Measure Y Taxes

    (1) Measure Y Imposes A Strict Pair of Requirements on Police Officer Staffing

Measure Y states: "The tax proceeds raised by this ordinance may only be used as part of the following integrated program of violence prevention and public safety intervention, in accordance with the following specific purposes: 1. Community and Neighborhood Policing: Hire and maintain at least a total of 63 police officers assigned to the following specific community-policing objectives:..." (Part I, Section 3; underlining added)

Does the City have the right to use Measure Y money to hire and maintain at least 63 officers while using general funds and other non-Y money to maintain any number of other officers, perhaps no other officers at all? The answer, in the negative, is provided by the other provision in Measure Y relating to numbers of police officers:

"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 (739)." (Part II, Section 4)

The requirement just quoted is not written to require appropriation from non-Y funds of a stated amount of dollars, for example, $74 million for the police department. Nor does the ordinance require appropriation of enough dollars to maintain seven helicopters. Nor does the requirement speak of enough dollars to maintain a certain total police department staff of sworn officers plus non-sworn employees. Instead, the requirement specifies enough dollars to maintain 739 police officers (implicitly raising the dollar total from year to year as the cost of 739 officers rises). Only with a requirement so stated does the other personnel requirement in Measure Y – mandating that part of the new money must be used to hire and maintain at least 63 police officers – have real meaning.

The pair of requirements addresses a single subject, the number of employed officers. The requirement to maintain 739 officers, stated as a prerequisite for collecting the taxes, surely means all or at least most of the fiscal year by any equitable reading. The requirement to hire and maintain at least 63 officers specifies a use of Measure Y funds during the fiscal year. The pair of requirements entails that the City end the fiscal year with at least 802 officers. (Petitioner does not assert that Measure Y requires the City to employ 802 officers at the beginning of a fiscal year during which it collects the Measure Y taxes.)

As will be shown, the City, while collecting Measure Y funds (and quickly spending a portion of them on grants to social programs), employed fewer than 802 officers. Did the City hire and maintain at least 63 officers with Measure Y funds? The answer must be yes or no. If the answer is yes, then the City did not maintain 739 officers (= 802 - 63) with non-Y funds. On the other hand, if the answer is no (that is, the City did not hire and maintain at least 63 officers with Measure Y funds), then the City violated the other police staffing requirement of Measure Y.

The City asserts that "appropriation" on paper for 739 officers from non-Y funds meets the requirement of Measure Y. But Measure Y contains a pair of police staffing requirements. If the City hires and maintains 63 officers, it has no grounds for not first hiring toward the 739 officers. If the City does not meet this prerequisite, the ordinance forbids the City to collect the Measure Y taxes. On the other hand, if the City hires fewer than 63 officers with Measure Y funds, it violates the other staffing requirement. In common parlance, the question posed to the City is, what part of 802 officers don't you understand?

Professed inability to hire officers because of a lack of qualified candidates, for example, is no excuse for collecting and spending the taxes. Measure Y specifies an "integrated program" of uses. (Part I, Section 3) If the City is unable to spend the funds for those uses, including the hiring and maintenance of 63 officers and therefore the prior maintenance of 739 officers that makes the 63 officers additional and not mere substitutes, then it is illegal for the City to collect and spend the taxes.

A further implication of Measure Y is that a City order to collect the taxes must be preceded by a finding that the City meets the requirement of maintaining 739 officers with non-Y funds. The ordinance authorizing collection of the Measure Y parcel tax makes no such finding.

    (2) The City Unlawfully Transfers Appropriated But Unspent Funds

The City appropriated for 803 officers in its adopted policy budget for fiscal year 2005-06, of which funding for 63 officers is appropriated from Measure Y funds. (FY 2005-07 Adopted Policy Budget, p. M-19) Consequently, 740 officers are to be funded from other sources. In fact, however, the City as of the start of the fiscal year employed fewer than 700 officers, and by Oct. 5, 2005 still employed only 690 sworn officers. The City knew when it began the fiscal year that it could not and would not spend in full the appropriations to maintain 802 (plus one) officers. This fact alone makes a mockery of the charter law that "the Council shall adopt by resolution a budget of proposed expenditures and appropriations necessary therefore" (City Charter section 801; underlining added)

Moreover, plaintiff finds nothing in budget documents published after the fiscal year began indicating the actual use of the appropriated but unspent funds for 803 officers. Even if the City holds funds in a Measure Y account that are not spent on 63 sworn officers, such action is meaningless without also holding in a separate account the funds not spent in full on the other 740 officers. The City's assertion that "appropriation" is only a paper act allows commingling and unlawful transfer of appropriated funds. By information and belief, the City has in fact not taken the elementary steps necessary to prevent substitution of special for general funds or vice versa, depriving residents and taxpayers of any meaningful verification that City is abiding by the personnel requirements in Measure Y.

    (3) Legislative History Precludes Evasion of the Requirement to Provide 802 Officers

As described above, the pair of staffing provisions was put into Measure Y as the Council developed a successor to defeated Measure R. When Measure Y was written, the number of budgeted officers for 2003-04 was 739; the actual number employed was 734; and the measure specified the number 739, referring to the number of officers "employed by the City of Oakland for the fiscal year 2003-2004 (739)" – a grammatical appositive that was true within a margin of five officers. The City needed to hire only a handful of officers to satisfy the prerequisite. Legislative history confirms that Measure Y forbids the City from reducing the number of officers supported by general funds below 739, then using Measure Y funds to restore that number, either fully or, even worse, only in part. However, the City did exactly what Measure Y forbids. The Council maintained its hiring freeze on police officers until approximately the end of calendar 2005, letting foreseeable resignations and retirements reduce the number of employed officers to substantially below 739. Yet the City is collecting and spending the Measure Y taxes in blatant violation of the staffing requirements.

    (4) Campaign History Precludes Evasion of the Requirement to Provide 802 Officers

The City explained on a Fact Sheet that Measure Y provides "Additional Programs and Services," including "63 sworn police officers, bringing total sworn strength to 802." The City also stated on its website, "The measure will add 63 sworn police officers for community policing, crime reduction, and targeted focus on truancy and school safety; domestic violence and child abuse, bringing the total strength of the department to 802 sworn officers."

California Government Code allows a City or other local agency to expend funds on information for a ballot measure if "The information provided constitutes an accurate, fair, and impartial presentation of relevant facts to aid the voters in reaching an informed judgment regarding the ballot measure." (54964(c)(2)) This petition tests whether a City government faces any consequences at all when it represents to voters what they will receive for special taxes and then renders such representations worthless.

As quoted above, City Council members repeatedly said that Measure Y means 802 officers: 739 plus 63. By the very act of adding 739 to 63 and emphasizing the sum, 802, the City and Council members told voters that the two personnel figures were about the same thing; as the saying goes, don't mix apples and oranges. The City and Council members sold the number 802 as real police doing real anti-crime work, not as a number that exists only in budget documents.

Substantially the same Council members "tightened up" Measure Y in three successive drafts (no matter how reluctantly), campaigned vigorously for it, and then adopted the 2005-06 budget in violation of Measure Y. This petition tests whether Council members will succeed in converting the special taxes in Measure Y to general purpose funds and using them for grants to private agencies while ignoring the police staffing requirements that they themselves wrote and sold.

B. Measure Y Imposes Police Staffing Requirements Within Each Fiscal Year

The police staffing requirement for 739 sworn officers specifically references each year's budget. Measure Y provides – in extraordinary language for a tax measure – that the City may not collect the taxes in a particular fiscal year if the requirement is not met. All budget appropriations expire at the end of the fiscal year, and no part of Measure Y authorizes multi-year banking of funds or delayed achievement of staffing requirements.

The history of Measure Y also makes clear the annual time period. The City Council offered Measure Y after the defeat of Measure R, adding specific numeric requirements on the number of police officers to be hired, "at least 63." For this commitment to be meaningful, the number must be tied to a time period. The difference between hiring and maintaining 63 officers in one year and gradually adding 63 officers over two, three, or four years, even as long as ten years (the duration of Measure Y) would be the difference between honoring a commitment and 50%, 33%, 25% or 10% "fulfillment" of it. Of course, the City must add at least 63 officers to the previously required 739 officers. In light of the controversy that spurred the City to insist that the measure provides 802 officers, asserting now that the City may take several years to add 63 officers – while the full parcel tax is collected every year and while the Measure Y money spent on social programs is never delayed – is a clear violation of the obligation previously agreed with the voters and embodied in the ordinance.

C. Violation of Measure Y in 2005-06 Is Already Known With Certainty

The court need not wait until the end of 2005-06 to see whether a violation of Measure Y has occurred. Just as a 600 mile-per-hour airplane cannot reach a destination 1,500 miles away in two hours, the City cannot reach 802 officers by the end of 2005-06. This is already a certainty, as follows:

As practiced by the City itself, employment projection is based on three arithmetic elements: the number of officers employed when the projection is calculated, plus the number of officers added by police academies (every candidate must complete an academy before being sworn as an officer), less the number of officers who retire, resign, etc. The method of projection is sound because all candidates for Oakland sworn police officer must graduate from an Oakland police academy. The method may be applied now for 2005-06.

– As of Oct. 5, 2005, the City employed 690 sworn police officers.

– A regular academy began on July 11, 2005. Enrollment of candidates for Oakland police officer was 34; only 18 trainees remained as of Dec. 16, 2005.

– An academy began on Nov. 28, 2005, with only 27 candidates.

Temporarily assuming no more dropouts, these academies would produce 45 (18+27) officers. Added to 690 currently employed officers, the new sworn officers can only bring the total to 735. A few more might be added by a lateral academy. The total of 735 is an overstatement, since one must deduct for dropouts during academies, retirements and resignations. Dropouts average 25%. Resignations and retirements exceed three per month on average. The City will have well below 739 officers, and certainly below 802, throughout the entire fiscal year.

It is known that the City has violated the requirements of Measure Y for 2005-06. In each fiscal year, the City must provide its citizens and taxpayers either timely enjoyment of the police staffing benefits of Measure Y or relief from its special taxes.

SECOND COUNT
Spending taxes in violation of City law, 2004-05

Respondent began collecting a parking tax surcharge allegedly authorized by Measure Y starting from Jan. 1. 2005, some portion of which the City spent during the 2004-05 fiscal year. This expenditure violates the Measure Y requirements on employment of sworn police officers. At no time during the fiscal year did the City employ even 739 officers, nor was there any plan to reach 739 officers during the fiscal year using general fund and other non-Y money. The City employed 734 officers on June 30, 2004 and the number fell almost every month, ending the fiscal year at 697.

THIRD COUNT
Violation of statute governing special taxes in 2004-05 and 2005-06 fiscal years

"All taxes are either special taxes or general taxes." (Government Code paragraph 53721). The taxes imposed by Measure Y are special taxes. By violating the requirements in Measure Y on the use of those taxes in the 2004-05 and 2005-06 fiscal years, the City violates California statute.

California Government Code provides:

    "50075.1. On or after January 1, 2001, any local special tax measure that is subject to voter approval that would provide for the imposition of a special tax by a local agency shall provide accountability measures that include, but are not limited to, all of the following:
        "(a) A statement indicating the specific purposes of the special tax.
        "(b) A requirement that the proceeds be applied only to the specific purposes identified pursuant to subdivision (a).
        "(c) The creation of an account into which the proceeds shall be deposited."

Measure Y, adopted by voters on Nov. 2, 2004, includes such statements and requirements. By violating the requirements in the 2004-05 and 2005-06 fiscal years, the City has violated the taxpayers' right that special tax proceeds be applied only to specific purposes. (Government Code paragraph 50075.1(b))

The parcel tax in Measure Y is clearly a special tax. Measure Y, submitted to voters by the City council itself, brings the parking tax surcharge under the same provisions as the parcel tax:

"All funds collected by the City from the taxes imposed by this ordinance shall be deposited into a special fund in the City treasury and appropriated and expended only for the purposes authorized by this Ordinance.

"Only the incremental taxes and surcharges approved by Parts 3, 4, 5, and 6 of this ordinance shall be dedicated to the purposes specified by this ordinance. Any portion of the parking and business license tax rate that were general taxes prior to the enactment of this ordinance shall remain general taxes." (Part II, Section 2)

The City, in writing Measure Y and in representations by the City and by Council members, offered the voters 802 officers in return for special taxes. The voters accepted the offer, but the City, while spending a portion of the taxes on social programs, is not providing the 802 police officers until an uncertain date long after the 2005-06 fiscal year, if ever. If Government Code paragraph 50075.1 means anything, and if there is any equity attaching to the representations of a City to its citizens regarding a specific, numerically defined special tax package, a violation of law has occurred.

FOURTH COUNT
Declaratory Relief
Civil Code of Procedure Section 1060
...
WHEREFORE, petitioner prays as follows:

    1. For a peremptory writ of mandate ordering respondent:
        a. Not to spend any funds from the account receiving Measure Y taxes;
        b. To reduce parking rates at City-owned garages for a term sufficient to refund to the public the parking tax surcharges collected to date;
        c. To repeal its order for the collection of the parking tax surcharge for 2005-06;
        d. To inform all payers of the Measure Y parcel tax of their right to a refund with simple instructions and a filled-in, business-reply postage prepaid form enabling and encouraging taxpayers to claim their refund.

    2. For a declaration that:
        a. Respondent collected the Measure Y parking tax surcharge from Jan. 1, 2005 to the end of fiscal 2005-06 in violation of law;
        b. Respondent appropriated and spent funds from the Measure Y fund for fiscal years 2004-06 and 2005-06 in violation of law;

    3. For temporary, preliminary, and permanent injunctive relief according to verified application and proof.
...

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