OFFICIAL PUBLICATION OF THE SAN JOSE POLICE ... PUBLICATION OF THE SAN JOSE POLICE OFFICERS'...

OFFICIAL PUBLICATION OF THE SAN JOSE POLICE OFFICERS' ASSOCIATION Volume 40 : No. 4 • April 2012

�DUPED BYTHE CITY OF

SAN JOSE:REDUCED RETIREMENT

FOR MEMBERSWITH RECIPROCITY

By Ken Munson > page 26

Bait And SwitchBy Jim Unland > page 6

�DUPED BYTHE CITY OF

SAN JOSE:REDUCED RETIREMENT

FOR MEMBERSWITH RECIPROCITY

By Ken Munson > page 26

Bait And SwitchBy Jim Unland > page 6

VANGUARDOfficial Monthly Publication Of TheSan Jose Police Officers’ Association

02 April 2012 VANGUARD

Copyright: All rights are reserved and no part, text, or picturesmay be reproduced without written permission. No responsi-bility whatever is assumed by the VANGUARD or the San JosePolice Officers’ Association for unsolicited material. Membersor readers submitting letters to the editor are requested to ob-serve these simple rules:

• Address letters to: The Editor,1151 North Fourth St., San Jose, CA 95112or Email to: [email protected]

• Unsigned letters and/or articles will not be used.

• Unsolicited articles and letters may not exceed 500 words.

• Writers are assured freedom of expression within necessarylimits of space and good taste.

• Please keep letters and/or articles legible.

• The editor reserves the right to add editor’s notes to any let-ters submitted if necessary.

• Deadline: 10th of each month.

The VANGUARD is the official publication of the San Jose Po-lice Officers’ Association. However, opinions expressed in theVANGUARD are not necessarily those of the San Jose PoliceOfficers’ Association, and/or the San Jose Police Department.Check out our web site: www.sjpoa.com

The Truth Is Its Own DefenseP.O.A. Tel: 408.298.1133 or x4012 Fax: 408.298.3151

Editor: Art Director/Publisher:Kerry Hillis Christopher [email protected] [email protected]

Office Manager/Bookkeeper: Administrative Assistant:Joanne Segovia Maryanne [email protected] [email protected]

Admin. Assistant/Graphics: Advertising:Nicole Decker P.O.A. [email protected] Tel. 408.298.1133

Meeting Dates For 2012:April 3, Tuesday 0730 hrs. May 1, Tuesday 0730 hrs.June 5, Tuesday 0730 hrs. July 3, Tuesday 0730 hrs.August 7, Tuesday 0730 hrs. September 4, Tuesday 0730 hrs.October 2, Tuesday 0730 hrs. November 6, Tuesday 0730 hrs.December 4, Tuesday 0730 hrs.

This schedule is subject to change, please contact the POA office forconfirmation of dates and times.

VANGUARD April 2012 03

SAN JOSE POLICEOFFICERS’ ASSOCIATION

Board Of Directors

Director

Rebecca Marquez

[email protected]

Director

Ed Conover

[email protected]

Director

Rick deLisser

[email protected]

Director

Glenn Baldwin

[email protected]

Director

Howard Johnson

[email protected]

Director

Paul Kelly

[email protected]

Director

David Woolsey

[email protected]

Director

D. Bortolotti

[email protected]

President

Jim Unland

[email protected]

V. P.

John Robb

[email protected]

C.F.O.

Franco Vado

[email protected]

Director

Keith Cottrell

[email protected]

Director

James Gonzales

[email protected]

Director

JuanJoseVallejo

[email protected]

Legal Counsel

Gregg Adam

[email protected]

Director

Will Becerra

[email protected]

President’s Message:Bait And Switch 06

Second Chair’s View:The Free Market Has Spoken 10

C.F.O.’s Report 12

Legal Counsel:#pensiongate: Summary Of Legal Challenges 14

Political Update:The San Jose POA Fights BackWhile The 2012 Elections Heat Up! 16

Family Law Corner:The Hatfields And McCoys 18

Long-Term Investing:Campaign 2012:Investing In America’s Future – Our Youth 20

Battlefield Diary: AfghanistanA Letter To Steve 22

Insurance News:Long-term Care Insurers Flee:“Is This The End Of Long-term Care Insurance?” 25

Cover Story:Duped By The City Of San Jose:Reduced Retirement For Members With Reciprocity 26

Training Bulletin:Public Relations Versus Crisis Communication... 30

Home & Auto NewsNeed Collision Repair? What To Expect 31

Reliable Informer 32

Real Estate News:New Options To Keep Your Home 39

ING BriefWhat Is Your Asset Allocation Strategy? 40

Police & Fire Retirement Report:Board Meeting 42

Real Estate Perspective:Why Homeowners Need To Consider A Short Sale 43


VANGUARDContents:

Legal DefenseFund ReportFranco Vado, LDF Administrator

Requests: 6

Approved: 6

Denied: 0

Board Representative: 5

Attorney Request: 1This is a synopsis of LDf TrusTee acTions for

the month of february 2012. Due to an individual's right ofprivacy, specific details of LDf cases cannot be revealedby your LDf Trustees without written authorization fromthe involved member.

your Legal Defense plan provides you with legal serv-ices for acts or omissions arising in the course and scopeof your employment as a san Jose police officer. Be ad-vised that incidents which arise while you are performingduties associated with off-duty employment are excludedfrom coverage under the plan.


ing to continue to portray the opt-in component as if hav-ing that option is a forgone conclusion. here is the word-ing from the City Clerk’s analysis of the ballot language.

Alternative Plan. The Measure would require the CityCouncil to adopt a Voluntary Election Program (“VEP”),subject to IRS approval. Under the VEP, employees who“opt in” would not be required to make the additionalcontributions towards retirement plan unfunded liabili-ties. The VEP retains some existing benefits and reducesothers. If the VEP has not been implemented, or employ-ees do not elect to participate, employees would makeadditional contributions.

here is the wording from the City Manager’s february21, 2012 memorandum regarding the implementation ofthe “veP.”

If the Voluntary Election Program is not implemented forany reason, the compensation adjustment will apply toall employees.The implementation of the VEP is contingent upon re-ceipt of IRS approval.

The Mercury News is far more honest about the opt-inthan either reed or Constant. in a recent editorial they wrote,“the ballot measure is imperfect. it includes an opt-in pro-vision for existing employees, something unions first pro-posed but the internal revenue service has yet to approve.We believe it will stand up.” it’s not clear to me what theyare referring to when they say “We believe it will standup.” if they are talking about the irs approval of an opt-in,


Bait And Switch

The Council voted last month to send theMayor’s pension measure to the voters inJune. While we have shifted our focusto the courts, the City leaders are stillselling this bait and switch. It is billedas a plan with an “opt-in” componentthat doesn’t yet, and may never exist.

President’s Message

Jim Unland

Minutes before the CounCil voted to send thismeasure to the voters, the Mayor read a statement explain-ing what the ballot would mean. from the dais, he said thefollowing, “Current employees have also have the option tochoose a lower cost plan and avoid paying higher costs.”

Councilmember Pete Constant recently wrote on Face-book, “the ballot measure does not affect what you've ac-crued to date. And you can continue to accrue at that rateif you pay more of the costs (the city will still pick up thelarger share) or you can opt into an optional plan whereyour future accruals are reduced to 2% per year (again, allbenefits accrued remain in place).”

these are definitive statements. “have the option to choosea lower cost plan” “you can opt into an optional plan”

We know these statements are not true and it is mislead-

“The Mayor’s and Constant’scharacterizations of the opt-in are misleading and deceit-ful. As City leaders, we expectthem to be truthful. Unfortu-nately, as we’ve seen frommuch of the NBC11 reporting,truthfulness is in short sup-ply at City Hall.”


then I don’t share their sentiment.For over a year, I have been in touch with an attorney who

works for the Treasury Department and who is very famil-iar with this issue. Just a few weeks ago, I spoke with himagain. He told me that making decisions in Washington isa “collaborative” process. So far they have not reached any“conclusion.” He told me that it is possible they never will.

Here is another excerpt from a different Mercury Newseditorial written in November of last year about the IRS ap-proval. “But the plan is pending IRS approval. Welcome tothe club. Some 25 similar plans have been submitted since2005, when the IRS placed a moratorium on them, appar-ently to come up with a consistent standard. Six years havepassed with no action, and for all anybody knows, it couldbe another six before the IRS rules.”

“In San Jose the question is especially important becauseif employees can’t opt into the lower-benefit but generallyreasonable plan the draft ballot measure proposes they wouldbe forced into a new payment formula that not only requirespaying half of their future pension cost but also paying downthe unfunded liability”

The Mayor’s and Constant’s characterizations of the opt-in are misleading and deceitful. As City leaders, we expect

them to be truthful. Unfortunately, as we’ve seen from muchof the NBC11 reporting, truthfulness is in short supply atCity Hall.

Editor’s Note: Please send any comments to:[email protected]

The Free MarketHas Spoken

We had 800 applicants put in for the 70 positions. butafter the written test, the physical agility test, the phQ andoral application phase, we are already down to 230 remain-ing applicants. The 230 applicants who are eligible to takethe oral will still need to pass the psychological testing, thepolygraph and the rest of the backgrounding.

As a point of comparison, oakland pD has received 2,500applications for 55 open positions. They received over 3times our number of applicants with fewer openings. i’msure it has nothing to do with the fact that oakland’s bene-fits package is superior to ours. i’m sure it has nothing to dowith the fact that oakland’s 2nd tier pension plan is Calpers’3 @ 55. i’m sure it has nothing to do with the fact that ourCity’s leadership has destroyed the morale of its police de-partment.

i remember our mayor making some type of off-handedremark about not wanting oakland’s problems. it looks likethe free market has spoken. given the choice, applicants,by a 3 to 1 ratio, would rather work in oakland than insan Jose.

Editor’s Note: Please send any comments to John Robbat: [email protected]

“We had 800 applicants putin for the 70 positions. But af-ter the written test, the phys-ical agility test, the PHQ andoral application phase, we arealready down to 230 remain-ing applicants. The 230 appli-cants who are eligible to takethe oral will still need to passthe psychological testing, thepolygraph and the rest of thebackgrounding.”

John is on vacation so I thought I woulduse his space to update you on our hir-ing efforts. Here is the latest informa-tion I’ve been able to gather. We haveapparently been authorized to hire 70recruits in the next fiscal year (July 1,2012-June 30, 2013). That would trans-late to an academy of 35 recruits inSeptember 2012 and an academy of 35recruits in March 2013.

aRtICle wRItten by Jim Unland

Second Chair’s View

John Robb

This number is The besT guess for keeping upwith attrition rates. We would not be expecting to increaseour staffing levels with this amount of hiring. many of thoseexpected to leave this coming year will be through resig-nations as our members continue to give up hope on thisCity. We could see our ranks drop to 1000 before we getany relief.


John Robb Is CuRRently on VaCatIon

Visit ProtectSanJose.comRegularly for the latest on

#pensiongate


“It is the POA’s position thatwe have a full reciprocityagreement for anyone hiredafter September 1994, andthat his or her years of serv-ice can be combined to meetservice retirements.”

San Jose Police Officers’Association Meeting Notes

next, President Unland spoke regarding the timeline andwhat was expected at the council meeting later in the af-ternoon. President Unland made it clear that we believedthat the mayor had the votes to move the ballot measurealong, and consequently the next battle would occur in court.there was a small chance that the most recent calPersproposal could have jointly moved foreword. (Editor’s Note:Councilman Pete Constant ultimately utilized a parliamen-tary procedure to prevent a vote on the CalPERS alternative.)

President Unland turned the microphone over to VicePresident robb as Unland had to leave to attend a meetingbetween the Poa attorneys and the homicide unit (this meet-ing was for the purpose of introducing all of the involvedparties and assuring they are on the same page).

Vice President robb outlined all of the issues in the ballotmeasure and how they would affect the department. robbthen turned over the microphone to Poa attorney greggadam to cover the legal analysis of the measure and howthe process of challenging it will occur.

cFo Franco Vado then covered a recent issued that hasarose with regards to the city stalling on covering its reci-procity agreement with calPers for officers with 20 yearsor less of san Jose service. it is the Poa’s position that wehave a full reciprocity agreement for anyone hired afterseptember 1994, and that his or her years of service canbe combined to meet service retirements. Poa attorneygregg adam indicated he would draft a letter to the city

Membership MeetingThere were two items on the agendafor the March 6, 2012 MembershipMeeting.

C.F.O.’s reportFranco Vado

President Jim Unland oPened by recognizingformer ldF panel attorney terry bowman. terry has been apartner with the firm rains lucia and stern for seven years.terry has served the rank and file well and will be missed.although we lose terry’s expertise for ldF matters, terry willstill be serving with us as an assistant district attorney forsanta clara county. President Unland presented terry witha plaque recognizing her service to the san Jose Police of-ficers’ association.

Door PrizesVendor: Prize: Name:

POA Insurance $50 Gift Certificate Stanley GasparBroker Sam’s BBQMarc Derendinger

ING Deferred Comp. $25 Gift Certificate Clayton LeRep. Peter Ng Starbucks

San Jose $25 Gift Card Kevin MankCredit Union StarbucksGina Skyllas

California Casualty $25 Gift Certificate FranciscoRep. Valerie Cragen P.F. Chang’s Hernandez

Golden Harvest $50 Gift Card Kenneth RakCatering Red LobsterJohn Nguyen

AtteNDANCe: 162


on behalf of the involved parties and would move to getthis matter resolved as soon as possible.

Meeting Of TheBoard Of Directors

The board meT wiTh and lisTened To The pres-entation of Cynthia sevely(candidate for superior CourtJudge). The board voted to endorse her candidacy and makea $1000 donation to her campaign.

bruce sutherland addressed the board regarding his prac-tice as a workman’s Compensation attorney. The board felthe was qualified and directed the CFo to add him to therecommended attorney list.

The third item discussed was a request for a donation tothe Kiwanis Turnaround scholarship. The poa has a long-standing relationship with the Kiwanis and voted to donate$500 from the Charitable Foundation to the scholarshipprogram.

The board then entered into closed session to discuss mat-ters related to ldF.

Insurance And BenefitsTrust Meeting

aT The board oF TrusTees meeTing There wasone item discussed that required a vote. secretary Vado re-viewed the minutes from the February 6, 2012 board ofTrustees’ meeting. Trustee Vado made the motion to ap-prove the said minutes. The motion was seconded byTrustee robb and approved. in addition to the item requir-ing a vote, the board of Trustees also discussed the follow-ing items:

1. The board of Trustees reviewed the investments andexpenditures of the Fund.

2. The board of Trustees reviewed the current claims onour old disability plan from standard insurance

Editor’s Note: To contact Franco Vado, email:[email protected]



“While Judge McKinney hasset a hearing for April 2 to de-termine whether an injunc-tion should issue to preventthe City from proceeding withthe election, preventing theelection from going forwardis an unlikely outcome.”

#pensiongate:Summary OfLegal Challenges

This month's report primarily sum-marizes a number of legal challengesfiled in response to the City's attackon members' pension benefits.

Legal Counsel

Gregg McLean Adam

ONE ACTION IS A PRE-ELECTION ChALLENgE TO ThEterminology of the ballot question. It objects that certainterms like "reform" and "abuses," as raised in the ballotquestion, violate state elections law requirements that bal-lot questions be impartial. The lawsuit also challenges asimproper the manner in which the ballot question suggestsvoters must vote to reduce pensions or be subject to the lossof essential public services. Presented in that form, whowouldn't vote for the measure?

That lawsuit is being handled by the law firm of Remcho,Johansen & Purcell LLP, the preeminent elections law firmin the State of California. The firm's legal briefs do an ex-cellent job of laying out the inequities in the ballot ques-tion and the ballot argument.

The POA itself has filed three legal actions since March 6,2012. The first is a petition to compel arbitration. We fileda lawsuit on March 16 because we believe that the City'saction of trying to go to the voters to change retirement bene-fits that are in our MOA is an "end run" around our contractand, we contend, invalid. Certain retirement benefits arespecifically enumerated in Articles 49 and 50 of the MOA.Article 19 is what is known in the industry as a zipper clause.It prevents unilateral changes to terms in the MOA duringthe lifetime of the MOA. Because our MOA lasts until June30, 2013, retirement benefits discussed in Articles 49 and50 cannot be changed except by interest arbitration, as pro-vided in the Retirement Side Letter that accompanies theMOA. The City has chosen not to try to change benefitsthrough interest arbitration, instead trying to do so at the

ballot box. The matter is pending before Judge Pierce in theSanta Clara County Superior Court.

A second petition to compel arbitration seeks to obligatethe City to go to interest arbitration under Charter Section1111 over the subjects covered in the parties' retirementnegotiations. (Notably it does not seek to require that thewording of the ballot measure must go to interest arbitra-tion.) For many months the City refused to proceed to inter-est arbitration. Accordingly, we filed our petition on March6. On March 23, the City for the first time indicated that itwas prepared to go to interest arbitration on some retirementsubjects but not others. This matter is presently pending be-fore Judge Kevin McKinney of the Santa Clara County Su-perior Court.

Finally – for now at least – we have filed an Unfair LaborPractice complaint, which is also pending before JudgeMcKinney. (Most employee groups must initially file unfairpractice complaints with the Public Employment RelationsBoard ("PERB"), the administrative body overseeing most ofthe State's public sector collective bargaining laws. Peaceofficers are exempted from PERB's jurisdiction, however,permitting us to go straight to Superior Court with our chal-lenge.) The complaint alleges that the City has failed to meetand confer in good faith with the POA over the ballot meas-ure. In particular, we argue that the City's absolute refusalto bargain since November 13, 2011 over various revisedballot measures was an illegal refusal to bargain. We alsoassert that the City willfully circulated knowingly false re-tirement cost projections with the specific intent of forcingpolitical pressure on employee unions to make concessions


beyond those necessary to resolve the City's pension prob-lems. We specifically cited the NBC Channel 11 investiga-tion which appeared to establish that the Mayor's only basisfor asserting that retirement costs could reach $650 millionin Fiscal Year 2015-2016 was an "off the top of his head re-mark" by Retirement Services Director Russell Crosby. Inthe same newscast, Mr. Crosby stated that he had warnedthe mayor and his staff not to use the $650 million figure,because it had no actuarial support. Undeterred, the Mayorand his staff used the $650 million figure on at least 35 oc-casions.

While Judge McKinney has set a hearing for April 2 to de-termine whether an injunction should issue to prevent theCity from proceeding with the election, preventing the elec-tion from going forward is an unlikely outcome. But thePOA will have the opportunity, probably after the electionhas occurred, to seek an order requiring the City to resumebargaining and possibly to invalidate the election if the bal-lot measure passes.

Editor’s Note: To contact Gregg McLean Adam,email: [email protected]

win as in the end the powerful become so full of themselvesthat they lose sight of “how far even they can take theirgames” and inevitably overreach. John emerich edwarddalberg acton, the historian and moralist, expressed thisopinion in a letter to bishop Mandell creighton in 1887:"Power tends to corrupt, and absolute power corrupts ab-solutely. great men are almost always bad men." Keep thefaith and stay united and please continue to read updatesand spread the word.

on the state level governor Jerry brown struck a deal witha union to pull their ballot measure and combine it with arevised version of his own. thus the governor has less thanfive weeks from the end of March to see if he can qualify hisrevised measure otherwise, his previous version will pro-ceed forward along with an additional tax increase seekingballot measure funded by wealthy donor Molly Munger.confused? You’re not alone, but the governor is determinedto raise taxes to close the budget imbalance. the businesscommunity remains paused, neutral or nervous. time willtell but this is a game of immense political stakes as it gets.

Editor’s Note: Peter Mitchell is proud to be the politi-cal consultant for the SJPOA and can be reached atpeterwm@pac bell.net or 714.412.6026


“It is an outrage to see the dis-tortion and withholding of in-formation to independent boardsthat base their work on the con-fidence of so-called ‘objective’data and persons who make surethe amounts needed to run theCity and Pension systems con-tinue.”

The San Jose POA Fights BackWhile The 2012 Elections Heat Up!

Congratulations to the Leadership,Members, Staff and Labor CoalitionMembers in the City and County forfighting back. So many from aroundthe state in other law enforcement groupshave contact me, who were shocked (butnot completely surprised), to see themedia reports and witness the effortsto expose San Jose “#pensiongate”! Theheadlines “NBC Bay Area exposes SanJose Retirement Director Russell Crosbymanipulating the so called independ-ent retirement plan actuary to changerecommendations, alter presentationsand filter information that should havebeen presented to the independent retire-ment boards” were almost beyond belief.

Political updatePeter Mitchell

It Is bad enough when we face those whoconstantly disagree with us or are philosophical opposed toour positions – or worse those with personal agendas whowish to demonize the good work you do because of reasonsthat are unknown or for political gain. It is an outrage to seethe distortion and withholding of information to independ-ent boards that base their work on the confidence of so-called“objective” data and persons who make sure the amountsneeded to run the city and Pension systems continue. oreven worse the sacrifices that so many of you have madedue to the dire projections all were told greatly affect yourjob, the safety and security of all who live, work and visitsan Jose and the families already ravaged by such decisions!

Rest assured light will continue to be shined on the matter.congratulations to the san Jose Poa for leading the chargerepresenting those (you) who are honest, decent and do avery tough job. do not think that lies or manipulation will

Code of Civil ProCedure (hereinafter “CCP”)Section 527.6 defines harassment as “unlawful violence, acredible threat of violence, or a knowing and willful courseof conduct directed at a specific person that seriously alarms,annoys, or harasses the person, and that serves no legiti-mate purpose. the course of conduct must be such that itwould cause a reasonable person to suffer substantial emo-tional distress, and must actually cause substantial emo-tional distress to the plaintiff.” CCP Section 527.6(b)(3) de-fines “course of conduct” as including “a pattern of conductcomposed of a series of acts over a period of time, howevershort, evidencing a continuity of purpose, including follow-ing or stalking an individual.”

it has been held that a single act is not sufficient; and thatan ongoing course of conduct is required for the Court toissue a permanent restraining order. leydon v. alexander(1989) 212 Cal. 3d 1, 4-5. for example, in Brekke v. Wills,(2005) 23 Cal. rptr. 3d 609 a boyfriend who sent three vit-riolic letters to his girlfriend instructing her on retaliatorymeasures she could take against her parents for their re-strictions on her was found to constitute harassment. inEnsworth v. Mullvain (1990) 274 Cal. rptr. 447, a formerpatient who followed his psychologist, circled around heroffice building, kept her house under surveillance, madenumerous telephone calls and sent threatening letters wasfound to be harassment.

to toughen the legal standard to obtain a restraining or-der, the Courts have required litigants to show “substantialemotional distress” as a result of the alleged harassment.“Substantial emotional distress” must include highly un-


The HatfieldsAnd McCoys

Civil Court has been lucky enough overthe past few years to handle the CivilHarassment calendar. Civil Harassmentlawsuits are commonly full of neighbordisputes, former friends turned foe andother individuals who need the Court’sassistance in preventing unlawful ha-rassment, but do not qualify for a reg-ular domestic violence restraining Or-der because of the absence of a familyrelationship between the litigants. TheCourt is empowered to issue CLETSRestraining Orders against offendinglitigants for up to three years, whichmay include personal conduct Orders,stay-away Orders and Orders regard-ing the payment of attorney fees andcosts.

“In Ensworth v. Mullvain

(1990) 274 Cal. Rptr. 447, a for-mer patient who followed hispsychologist, circled aroundher office building, kept herhouse under surveillance, madenumerous telephone calls andsent threatening letters wasfound to be harassment.”

Family Law Corner

Dennis J. Luca, Esq.


pleasant mental suffering or anguish from socially unaccept-able conduct which entails such intense, enduring and non-trivial emotional distress that “no reasonable [person] in acivilized society should be expected to endure it.” Schildv. Rubin, (1991) 232 Cal.App.3d 755, 762-763.

CCP Section 527.6(d) provides that the Court, in weigh-ing the Petitioner’s request for a Civil harassment Restrain-ing Order, must utilize the “clear and convincing evidence”standard in making its decision, as opposed to the “reason-able probability” standard enumerated for temporary Orderin CCP § 527.6(c). The legal standard of clear and convinc-ing evidence “requires a finding of high probability. Theevidence must be so clear as to leave no substantial doubt.It must be sufficiently strong to command the unhesitatingassent of every reasonable mind." BAJI 2.62; See also In reDavid, C. (1984) 152 Cal. App. 3d 1189, 1208.

Although the Civil Harassment Restraining Order is a use-ful tool in curbing alleged harassment, the Order may bedifficult to obtain given the required evidentiary showing.Many litigants may suffer from an “annoyance” in a person-al relationship, and a Civil harassment Restraining Order maynot be the appropriate remedy. In some cases, a stipulated“code of conduct” between individuals may be the appro-priate course of action to take in lieu of an application fora Civil Harassment Restraining Order. These agreements canbe made an Order of the Court, disobedience of which maytrigger civil and/or criminal penalties.

Until next month, keep the emails coming; remember tohave fun each day and smile! Be careful.

Editor’s Note: The information and opinions expres-sed above all are not intended to be relied upon as legaladvice, or to establish an attorney/client relationship.If you are involved in a family law matter, you shouldseek competent counsel. Offices of Dennis J. Luca, Esq.are at 1252 Park Avenue, San Jose, CA 95126 and hecan be reached by telephone at 408.287.7878 and emailat [email protected]


SFPOA’s CommunityServices Committee

The San FrancISco PolIce oFFIcerS aSSocIaTIonand its members invest their time, money and they volun-teer many man hours working with local youth organiza-tions. The SPFPoa’s community Services committee donatesmoney to many of the youth groups and organizations.

on 1/20/12, I interviewed chairman Martin “Marty” hal-loran of the San Francisco Police officers association’s com-munity Services committee. chairman halloran is also aboard member and Treasurer of the San Francisco Policeofficers association. Sergeant halloran is a 22-year vet-eran of the San Francisco Police Department.

Marty halloran told me that the San Francisco Police of-ficers association community Services committee was cre-ated in 1994 as a Federal Tax exempt 501 (c) 3 organization.The community Services committee has twelve board mem-bers from district stations and from investigative units. GaryDelagnes, President of the San Francisco Police officers

Long-Term Investing

Edwin K. Stephens

Campaign 2012: Investing InAmerica’s Future – Our Youth

When all else is lost, the futurestill remains.

– Bovee

In youth we learn; in age we un-derstand.

– Marie Ebner-Eschenbach

Is the United States jeopardizingthe future of its most populous group,young people under the age of 30by squandering resources, ratherthan investing in young people?Answer: Yes. The Census Bureau pro-jects a U.S. population of 439 millionin 2050, which is a 46% increase from2007 (301.3 million). Currently, popu-lation growth is fastest among minor-ities as a whole, and according to theCensus Bureau’s estimation for 2005,45% of American children under theage of 5 belonged to minority groups.In 2011, the United States had a totalresident population of 312,833,000, mak-ing it the third most populous countryin the world. People under 20 years ofage make up over a quarter of theUnited States population (27.3%), andpeople age 65 and over make up one-eighth (12.8%) in 2009. The nationalmedian age was 36.8 years.

“The San Francisco PoliceOfficers Association and itsmembers invest their time,money and they volunteermany man hours working withlocal youth organizations. TheSPFPOA’s Community Serv-ices Committee donates moneyto many of the youth groupsand organizations.”

vices Committee looks very favorably on donating moneyto youth organizations where its police members are in-volved in and working with kids.

The Community Services Committee will accept a letter,e-mails or other methods of communication to its board forsmaller funding requests. If a larger amount is requested, say$1,000 or more, the person and/or the organization mustmake a presentation before the full San Francisco PoliceOfficers Association and Community Services Committeeboard of directors.

This writer did make a presentation on behalf of his 501(c) 3 Girls 2000/Hunters Point Family non-profit foundationto the SFPOA and CSC board on December 14, 2011 forour Children’s Christmas Party fundraiser. The board was verygenerous and donated $2,500 to our organization. We wereable to purchase fifty $50.00 gift certificates for our childrento give as Christmas gifts. Please see our web site www.HuntersPointFamily.org.

The IRS And CharitableOrganizations

PuBLICATIOn 526 CHARITABLE COnTRIBuTIOnS ISthe Department of the Treasury or the Internal Revenue Ser-vice (IRS) information bulletin that explains how to claim atax deduction for your charitable contributions.

The writer of this article is not a tax-expert or a tax pre-parer. So, any information provided on charitable contri-butions should be corroborated and reviewed by your pro-fessional CPA or tax preparer. The Internal Revenue Servicenoted that “To deduct a charitable contribution, you mustfile Form 1040 and itemize deductions on Schedule A. Theamount of your deduction may be limited if certain rulesand limits explained in Publication 526 apply to you.” I amproviding lists for a quick check of contributions that youcan or cannot deduct.

– continued on page 24


Association and Kevin Martin, Vice President of the SFPOAin addition to Chairman Martin Halloran are the only mem-bers of the Community Services Committee who also serveon the San Francisco Police Officers Association board ofdirectors.

The purpose of the Community Services Committee is toprovide funding to youth and social service organizationsthat its officer members are actively participating. Commu-nity programs such as the Police Athletic League (PAL) andthe Wilderness Program receive regular and substantial fi-nancial support from the Community Services CommitteeFund. For many years, the Police Athletic League (PAL) hasfunded many youth programs from football, baseball, bas-ketball, softball and an array of other youth sports and rec-reational activities throughout San Francisco.

In the early 1970’s, this writer was a youth participant inthe PAL Raiders football team at Portola Park Playgroundin the Inner Silver District neighborhood. The recreation center and sports field have since been renamed Palega Play-ground. It is the money from the Community Services Com-mittee fund that has made it possible for San Francisco youthsto engage in extra-curricular activities that teach responsi-bility, cooperation, build team work, and develop characterby learning fair play and a sense of community.

Chairman Halloran told me that the Community ServicesCommittee receives its funding from approximately threesources. First, people make charitable donations to the CSCfund. Second, police members contribute by choosing au-tomatic payroll deductions for the Community Services Com-mittee fund. And, finally TBS Productions is an independentcontractor that raises money for the Community ServicesCommittee fund. Marty Halloran said that TBS Productionsis a commercial fundraiser that is located in the East Bayand it gives 20% of the money that it raises to the Commu-nity Services Committee fund.

In December 1999, Attorney General Bill Lockyer of theState of California produced a report entitled, “Attorney Gen-eral’s Summary of Results of Charitable Solicitation by Com-mercial Fundraisers.” In that report it was noted the term“commercial fundraiser” refers generally to a person or corp-oration that is a for-profit business who contracts with char-ities for compensation, to raise money in the charity’s name.The commercial fundraiser usually makes a profit by charg-ing a flat fee or a percentage of the contributions collectedin the charity’s name. However, it is important that in 1998most of the 80,000 charities registered with the AttorneyGeneral in California do not use commercial fundraisers toraise funds.

I asked Chairman Halloran how do you go about to dis-tribute money to youth groups from the Community Serv-ices Committee fund. Does a youth or service organizationhave to be a 501 (c) 3 charitable organization to receivefunding? The short answer is no. Marty told me that thetwelve member Community Services Committee boardprefers that a party requesting funds be an existing 501 (c)3 organization. And, that the organization is providing outreach services to San Francisco youths. The Community Ser-

they said fighting season starts in the spring...they were right.this is getting fun!

yeah, 203 does get heavy...but it's not that specific part...it's the whole thing. i weighed myself a couple weeks ago.i weigh 294 pounds with all my gear on...and i weigh about180 with just my Pt gear on. that just goes to show you howheavy this crap is. and to top that off...i'm not carrying the240, spare barrels, spare batteries, the thor system etc...like the rest of the grunts are. i try and do my part though...and never let the young guys see me get tired...cause man...i tell ya...3-4 hour patrols...are not easy!!!!!

Steve

Editor’s Note: Sgt. Major Steve Rice can be reached at:Battalion Sergeant Major, 1st Battalion, 8th MarinesFOB White House, AfghanistanNIPR: [email protected]: [email protected]: [email protected]: 358-6740 VoSIP: 357-8561

Brian Christian #3013, Sergeant, GIU-San Jose PD,can be reached at: 408.277.3835

Note: If any of you have other friends or family deployedoverseas, I encourage you to contact them and submittheir pictures, emails etc. to the Vanguard. Even withthe difficult times we are experiencing here at SJPD, Ibelieve that it is important that we do not forget thosemilitary members serving away from their families.

Battlefield Diary: afghanistan

Sgt. Major Steven Rice

A Letter To Steve

Hey Steve! How goes it? Hope things are OK. Saw

in the MC Times that the CMC was outin your AO. 'stan has been in the newsquite a bit lately...not all good, but thenthat is the media.


Final salute.

Just got a call from Pat geary asking if themuscle milk has made it to you yet? he said he sent a caseabout a month ago. if it makes it to you, he will send onsome more...just wants to be sure there are no problemswith the address.

getting tired of the m203 yet? i'd be carrying the lightestthing i could get my hands on!

Be safe bro. Brian Christian

Brianyeah...sorry it took me a bit to respond. for the past 72

hours...our foB has been hit. the first day was a 2 hour gunfight, yesterday they were shooting rockets at us...and today...early this morning...we were hit with mortars. man...when


A sad reality of war.

• Out-of-pocket expenses when you serve a qualifiedorganization as a volunteer.

Not Deductible AsCharitable ContributionsMoney Or Property You Give To:

• Civic leagues, social and sportsclubs, labor unions,and chamber of commerce.

• Foreign organizations (except certain Canadian, Israeli,and Mexican charities).

• Groups that run for personal profit.• Groups whose purpose is to lobby for law changes• Homeowners’ associations.• Individuals.• Political groups or candidates for public office.• Cost of raffle, bingo, or lottery tickets.• Dues, fees, or bills paid to countryclubs, lodges,

fraternal orders, or similar groups.• Tuition.• Value of your time of services. • Value of blood given to a blood bank.

Police Officers AndCharitable Non-Profits

POlICE OFFICERS AND lAW ENFORCEMENT OFFICIAlShave a long history of public service and working with var-ious charitable non-profits and community organizations.At the core of the mission of these charitable non-profits isto improve the lives of individuals, families, communitiesand society.

In 2011, the San Francisco Police and San Francisco Fire-fighter’s “Toys for Tots” program gave over 10,000 toys tochildren in need for Christmas. It is this writer’s hope thatthe police and law enforcement personnel will continue towork with charitable non-profits and other community or-ganizations to forge a better working relationship with thesegroups for the betterment of society. And, conversely, thesecharitable non-profits will also be more cooperative inworking with the local police.

I salute our dedicated police and firefighters for their per-sonal commitment to serve the public and act in a benev-olent capacity beyond their prescribed job duties. It is clearthat Police Officers whose motto is to “serve and protect”its citizens also extends to investing in America’s future, ouryouth.

Editor’s Note: For more sound investment advice, visitEdwin Stephens’ web site, at www.policeone.com/columnists/Edwin-Stephens/. Securities transac-tions through McClurg Capital Corporation. MemberFINRA and SIPC.


Long-Term Investing– continued from page 21

Deductible As CharitableContributionsMoney Or Property You Give To:

• Churches, synagogues, temples, mosques, and othermosques, and other religious organizations.

• Federal, state, and local Governments, if your contri-bution is solely for public purposes (for example, a giftto reduce public debt)

• Nonprofit schools and hospitals.• Public parks and recreation facilities.• Salvation Army, Red Cross, CARE, Goodwill Industries,

United Way, BoyScouts, Girl Scouts, Boys and GirlsClubs of America, etc.

• War veterans’ groups.• Charitable organizations listed in Publication 78.• Expenses paid for a student living with you, sponsored

by a qualified organization.


the calpers self-insured plan has ceased accepting newapplications, effective in 2008.

Genworth, the market leader, is protecting its low premi-ums by selectively choosing its applicants, which is greatnews for the lucky few who qualify, but frustrating for thoseleft outside the party.

Why are these companies having such a tough time withltc insurance? the problem is a combination of historical-ly low bond prices and rich insurance policies which auto-matically raise scheduled benefits 5% annually, even whenyou have not filed a claim. With low investment returns, in-surers cannot earn enough dollars to make money on ltcinsurance, so they are exiting the market place.

The Wall Street Journal asks rhetorically, “is this the endof long-term care insurance?” i don’t think so, because theneed is too great. for example, my good friend buried hisfather last month, after he had to abandon his job 12 monthsago to take care of his father. He did this, as his mother couldnot help anymore as she suffers from alzheimer’s and isspending $8,000 per month at a santa clara facility. myfriend’s career has been devastated, his parent’s finances,exhausted. it’s a real shame.

i’ve owned this insurance since i was age 41. i say, if youcan get it, you should buy it now: in the next year or twoit’s going to get real expensive and very hard to qualify for.

Editor’s Note: Marc Derendinger is our SJPOA In-surance Broker and serves on the Agent Advisory Groupfor the State of California Department of Health CareSer-vices’ California Partnership For Long-term Care.Marc has been writing long-term care insurance poli-cies for city employees since 1991. He can be reached at408.252.7300 or by email at [email protected] Insurance has served the SJPOA since 1968.

Long-term CareInsurers Flee: “IsThis The End OfLong-term CareInsurance?”

Wednesday March 7th, Prudentialannounced it would stop taking ap-plications for individual long-termcare insurance. According to theWall Street Journal, they are the10th company out of the top 20 in-surers to make this decision withinthe last five years. Further, consumerswho purchased individual policies be-tween 2004 and 2008 could see premiumincreases of 20%, if approved by stateregulators.

Insurance news

Marc F. Derendinger

UnfortUnately, it seems insUrance companiesdo not want to write business when they lose money. Doesthis mean long-term care insurance, if you can get it, is areal bargain?

What companies are still left? according to the prudentialpress release, they plan to continue offering group insurancethrough employers. for how long? in 2010, metlife madesimilar statements, but eventually withdrew from both theindividual market and the Group employer market.

the remaining insurers are reacting aggressively: new yorklife has stopped taking applications for those under age 50,pending a rate increase. John Hancock is offering policiesagain after ceasing california business more than a year ago,while waiting for approval of a major rate increase. even

“I’ve owned this insurancesince I was Age 41. I say, if youcan get it, you should buy itnow: In the next year or twoit’s going to get real expensiveand very hard to qualify for.”

I wanted to make the POA members aware of the problems I’m facing getting

the City to pay me my promised retirement. I just retired as a sergeant in De-

cember. This problem may face any member who has reciprocity and plans

to retire between the ages of 50-55. I came to the City of San Jose from Camp-

bell PD, where I worked 14.37 years (June 1982-October 1996). Before I was

hired at San Jose PD, I researched reciprocity. San Jose agreed to provide

reciprocity with California PERS (Public Employees Retirement System) in

September 1994, long before I was hired. I was told by personnel from the

Police Department and the City that my years of service under PERS could

be used in conjunction with my service at San Jose, allowing me to combine

my years of service and retire at the age of 50 with full retirement benefits. I

was told that the only thing I could not use my PERS time for was medical

benefits after retirement (minimum 15 yrs. of service with SJ) and a sick time

buyout (20 yrs. of service with SJ). I was hired by San Jose in October 1996.

DuRing mY CaREER hERE, i DECiDED ThaT mEDiCal bEnEfiTS afTERretirement were extremely important so decided to work for at least 15 yearsto obtain those benefits. i went to two Retirement Services sets of classes overthat time, to better understand my benefits. During both of those classes i wastold that i could retire when i had those 15 years and i was at least 50 yrs. old,

26 April 2012 VanGuaRD

COVER STORY

DupeDByTheCiTyOfSanJOSe:

ReDuCeDReTiRemenT

fORmemBeRS

WiThReCipROCiTy

allowing me full retirement benefits andmedical benefits. I chose to retire in December2011, when I had 15.17 years of San Jose ser-vice and I was 51 ½ yrs. old. This gave me a to-tal of 29.54 yrs. of service between both retire-ment systems. Retirement Services assured me,with the option I had chosen, that my monthlypay from San Jose would be $4,260.05. Thiswas also the amount I had been given years ear-lier during a Retirement Services class. On De-cember 31, 2011, I retired. I was told I would re-ceive my first paycheck on February 29, 2012.

On February 24, 2012, I received a panickedcall from Retirement Services. I was told that mymonthly check amount was being reduced to$3,312.36 permanently, a difference of $947.69. I wastold that the attorney used by Retirement Services hadfound a municipal code section (SJMC 3.36.810) thatstated that anyone who retired between the ages of 50-55 and had between 20-25 years of service would re-ceive a “reduced monthly allowance.” After investigatingthe section, I found it does not apply to me, as I didn’t



COVER STORY

By Ken Munson


Duped– continued from page 27

retire with 20-25 years of service. I have either 15 yrs. ofSJ service or 29 yrs of service including my reciprocity. Itapparently didn’t make any difference to the City or theirattorney. The Retirement Services Deputy Director toldme that the Retirement Services Department did not agreewith the attorney and stood by their original calculations,but they were being overruled pending a final decision.She agreed with me that my reciprocity years of servicewould preclude me from a “reduced monthly allowance.”She told me the attorney was doing further research tomake a final decision, but in the meantime I would notreceive my full salary. I told her I would not accept any-thing other then the salary I was promised. One of the is-sues with accepting the retirement check is that I couldnot reverse my retirement and come back to work, ifneeded, to accrue additional years of service.

At this point the “reduced monthly allowance” would

cost me $11,372 per year or a cost of approx. $500,000over my lifetime, when COLA’s are included. The Cityuses an actuarial table to reduce the pension benefitabout 6-7% for each year of age younger then 55.

I immediately called John Robb who jumped in withboth feet. The POA Attorney (Gregg Adam) is now onboard and has sent a letter to the City explaining their er-rors. He received a response (March 13) from Deputy CityManager Alex Gurza, who apparently doesn’t understandreciprocity. He only stated that an employee must workfor the City of San Jose for 25 yrs and be 50 years old orhave 20 years of service and be 55 years old to receive afull pension. Gurza admitted that this was not a final de-cision and the issue would be studied further.

Since that time I have found that the original RetirementServices attorney was preparing to retire and didn’t wantto make the decision on this topic. She pushed it off tothe new attorney. So I have been without a paycheck andhave no idea when a decision will be made. From what Iunderstand, this should never have happened and shouldnot be an issue, but if the City holds firm on their deci-sion, it will affect any officers who came from other retire-ment systems and plan to retire earlier than 55 years oldwithout 20 years of service with San Jose. If this problem isnot corrected, either the POA or I will file a lawsuit againstthe City. If you believe you might be affected by this orwant more information, please feel free to contact me.

Editor’s Note: Ken Munson (retired) can be reached

at [email protected]

COVER STORY

“At this point the ‘reducedmonthly allowance’ would costme $11,372 per year or a costof approx. $500,000 over mylifetime, when COLA’s are in-cluded. The City uses an act-uarial table to reduce the pen-sion benefit about 6-7% for eachyear of age younger then 55.”


lanta in 2008, the media ran the story non-stop for 72 hours.while the media were asking premature questions about theamount of damage and cost to the city, it was the AtlantaPolice department’s job to keep the media on-point – mes-saging about public safety, traffic issues, and clean-up.

Stay CurrenttHAt leAds to tHe second job of An AgencY At

the head of a crisis: keep messages timely. At the onset ofan incident, you may have to provide 15, 30, or 60 minuteupdates. take control of the message right away by usingyour department’s social media site as the go-to place fornew information. if you don’t provide a constant stream ofinformation when it becomes available, and is releasableto the public, the media and your community will go else-where for information – and there’s a good chance you willthen be spending your limited resources correcting miscon-ceptions and rumors. even if there is no update, letting thepublic know “we have nothing more to add right now, butwe will have another update for you in 15 minutes” is agreat strategy that lets the media and public know you re-spect their need for information and are doing everythingpossible to provide it in a timely fashion.

K.I.S.S.

tHird, keeP messAges simPle. twitter HAs botHpros and cons...but it forces one to think in 140 character‘sound bites’ – this actually helps departments create sim-ple and easy to follow messages. remember, during crisis,the media and public experience tunnel vision, just as offi-cers may when involved in a shooting. simple, active-voice,positive messages such as: “stay inside”, “stay home”, or“give blood” resonate. messages that tell people what not

– continued on following page

Public RelationsVersus CrisisCommunication...

Over the last decade, most law enforce-ment agencies have come to realize theimportance of communicating with thepublic. The majority of police depart-ments work with the media, have theirown websites, and many are utilizingsocial media to get their messages out.

Training bulletin

Judy Pal

However, wHen crisis Hits...like winston cHur-chill said, “A lie gets halfway around the world before thetruth has a chance to get its pants on”...immediate, concise,and truthful communication becomes vital. that crisis canbe anything from a natural disaster or officer malfeasanceallegation, to terrorism concerns or a crime wave, like thearsons that occurred in los Angeles county right aroundnew Year’s.

Feed The BeasttHe most obvious difference between dAY-to-

day public relations and crisis communications is the levelof interest. there will be an exaggerated response by themedia and the public to a crisis. Your job may be to quellrumor, calm a panicked public, and explain a complex sit-uation all at once. it’s important to remember that crisesare “money stories” for the media...interest will be intense,pressure will be severe, and the need to “feed the beast”overwhelming. in today’s ‘no news cycle’ world, the pres-sure on your agency for information will be never-ending.be prepared to think on your feet.

First Things Firstduring A crisis if You Are indeed tHe leAd Ag-

ency, keep in mind your job is to “keep the main thing, themain thing.” After an f-2 tornado ravaged downtown At-

Third DegreeCommunications:

“However, when crisis hits. . .like Winston Churchill said, ‘Alie gets halfway around the worldbefore the truth has a chance toget its pants on’. . . immediate,concise, and truthful communi-cation becomes vital.”


level of trust with your community. if you haven’t laid theground-work of trust before a crisis, it will be difficult to beseen as a credible source for information during one. thereare numerous steps you can take before, during, and aftera crisis to build trust in a community. take those steps nowto help prepare for that day...because whether you prepareor not, “that day” will come!

Editor’s Note: Judy Pal has managed media, commu-nications and public affairs for police in both Canadaand in the United States. In addition, she has providedmedia training, crisis communications, internal com-munications and image development seminars to police,fire and other first-responders across North America.This article was presented by The Principals of ThirdDegree Communications, Paul Francois and EnriqueGarcia. Third Degree offers SJPD Officers HALF-OFFtuition for all classes. Tel. 866.766.7575 Email. [email protected] or visit www.tdcorg.com

– continued from previous page

to do, can sometimes be confusing, and leave the publicasking, “oK, what sHoulD i do?”

Inform, Engage, EmpowerWHile “iNforM, eNgage, eMpoWer” is tHe fouND-

ation of a strong communication strategy, in crisis it is key.people feel helpless in crisis, and look to the authorities forinformation and what they can do. the la county sheriffdid a terrific job during the arsons around the New year –telling people to “keep your lights on outside at night” and“if you see something, say something”. simple messages ofdiligence led to the speedy arrest of a suspect and the calm-ing of an entire county that was reassured their police wereon the job and that the community was not helpless.

Public TrustWitH all tHis saiD, tHese rules of coMMuNicat-

ing in crisis won’t work if your agency has not developed a

after a collision, an insurance adjuster will usually visitthe shop where your car was towed or driven to so they canreview the damage and the estimate prepared by the facility.additional damage caused in the accident that is discov-ered after the insurance company has accepted the estimatemay still be covered.

if you're not certain about what you will be required topay, and what is covered by your policy, be sure to ask yourinsurance representative. if you have a deductible, it willbe due to the shop when the work is completed.

repairs on most cars can't be completed in one day. paint-ing, for example, requires extra time to dry. Depending onthe amount of damage, you should be prepared to be with-out your car for at least a couple of days.

the use of a rental car is often included in the cost of yourauto insurance, so if you will need another car while yoursis in the shop, ask your insurance representative about thiscoverage.

Editor’s Note: This article provided by your SJPOAauto & home insurance program California Casualty.If you have a question on an existing policy or need toobtain your free, policy review which would include thenewly reduced auto rates of 11.3% please call one ofour knowledgeable, friendly representative today tollfree at: 1.888.532.6994.

MaNy iNsuraNce coMpaNies MaiNtaiN a list ofshops for you to utilize. these shops are sometimes askedto meet strict performance requirements in order to belongto the company's program. insurers want their customersto get a fair repair estimate, and they want the work donein a timely manner. this helps insurance companies con-trol costs.

Need CollisionRepair? What ToExpect

The average driver is involved in anauto accident once every seven years,according to the Car Care Council. Withthose kinds of odds, you'll likely needthe service of an auto body shop at somepoint in time.

Home & Auto News

Valerie Cregan


ReCeNTly, THe CAlIfORNIA SupReme COuRT lOOkeDat this question in the case of People v. Nelson (2012) 53Cal. 4th 367.

A Minor Who BeganGiving A Post-MirandaStatement To A PeaceOfficer Did Not AssertHis Or Her Right ToCounsel Unless A Reas-onable Officer WouldHave Understood TheMinor Was Actually In-voking The Right ToCounsel

After a suspect in custody has waivedhis or her Miranda rights and has be-gun to give a statement to a peace offi-cer, he or she may assert the right tocounsel during the interview and ques-tioning must cease. Does a minor assertthe right to counsel differently than anadult suspect?

“During the questioning,Nelson admitted entering themurder victim’s residence. Hesaid that he took some jewelry,a credit card, and the victim’spurse. Initially, Nelson deniedany involvement in the vic-tim’s murder.”

Reliable Informer

Lance Bayer

In this month’s issue of The Reliable Informer, I willcover two cases, one decided by the California Sup-reme Court and one decided by the California Courtof Appeal. These cases look at the law related to cust-odial interrogation and the crime of burglary.

In the Nelson case, a 15-year-old minor named SamuelNelson lived in Orange County. During the springtime, aresidential burglary took place where two purses were taken.A few weeks later, another residential burglary took placewhere two wallets and a checkbook were taken. A few weeksafter that, a burglary took place at the home of Nelson’selderly neighbor. A credit card was taken. During the courseof the burglary, the victim was struck multiple times with ablunt object. She died of multiple skull fractures and brainhemorrhaging.

A few days after the killing, detectives Daniel Salcedo andBrian Sutton of the Orange County Sheriff’s Departmentspoke with Nelson outside his residence. Nelson told thedetectives that he had no idea who killed the victim. Hesaid he was willing to take a lie-detector test.

The detectives continued to investigate the case and thefollowing day returned to Nelson’s residence. Nelson agreedto discuss the case with the detectives.

Nelson was transported to the Sheriff’s Office station, acustodial setting, and was asked some preliminary questionsand then was given his Miranda rights. Nelson said that heunderstood his rights and stated that he was willing to speakwith the detectives.

During the questioning, Nelson admitted entering the mur-der victim’s residence. He said that he took some jewelry,a credit card, and the victim’s purse. Initially, Nelson deniedany involvement in the victim’s murder.

After the questioning had gone on for about three and ahalf hours, the detectives asked Nelson if he wanted to takea polygraph test. Nelson asked to call his mother. One ofthe detectives asked Nelson the reason for the call. Nelsonsaid that he wanted to let his mother know what was hap-


pening and wanted to talk to her about it and see what heshould do.

The detectives did not facilitate the call. Instead, they con-tinued to question Nelson. Nelson continued answeringthe questions. As Nelson was confronted with the evidenceagainst him, he changed his story several times. Eventually,Nelson confessed to the first two burglaries.

Nelson made several additional requests to call his mother.He was permitted several times to try to make the call, buthis mother could not be contacted. Instead, Nelson spokewith his grandmother and brother.

At one point, Nelson told the detectives to leave him alonebecause “they were getting on me for something I didn’t do.Nelson declined to take a polygraph test, saying that his rel-atives told him in the telephone call that they did not wanthim to take the test or do anything until a lawyer or hismother got there.

Towards the end of the interview, Nelson asked to have afew minutes to himself. He agreed when the detectives gavehim the opportunity to have a pencil and paper to write downhis feelings. As the detectives were leaving the room, theyurged Nelson to explain what happened and to do the rightthing. They gave Nelson another opportunity to call hismother and brother. When the detectives returned to theroom, Nelson told them that he had not written anythingand asked if he could be left alone until his family arrived.

The detectives told Nelson that they were tired of “play-ing games” and that he should take the opportunity to saywhat happened in his own words. The detectives then leftthe room. Nelson then wrote out his statement. Nelson laterexplained that he entered the victim’s residence and foundher sleeping on her living room sofa. When the victim sud-denly awoke, Nelson used his hammer to strike her in thehead repeatedly.

Nelson was charged as an adult with two counts of firstdegree burglary and one count of murder. He was chargedwith enhancements for personally using a dangerous anddeadly weapon and that the murder involved a vulnerablevictim.

In the trial court, Nelson made a motion to exclude hisconfessions. He asserted that the detectives violated hisFourth Amendment rights by continuing to interrogate himafter he requested to speak with his mother and after he re-quested to be left alone.

The trial court denied Nelson’s motion and he took hiscase to a trial before a judge. The judge found him guiltyof all the crimes and found the enhancements to be true.

Nelson then appealed his conviction to the Court of Ap-peal, which reversed the convictions, ruling that the minor’srequest to speak with his mother was for the purpose ofprotecting his Fifth Amendment rights.

The State then requested that the California SupremeCourt review the Court of Appeal’s ruling.

The California Supreme Court agreed to hear the case andoverturned the Court of Appeal’s decision. The convictionswere reinstated.

In its written decision, the Court first stated, “Under theFifth Amendment to the federal Constitution, as applied tothe states through the Fourteenth Amendment, no personshall be compelled in any criminal case to be a witnessagainst himself. In order to combat the pressures of custo-dial interrogation and to permit a full opportunity to exer-cise the privilege against self-incrimination, the accusedmust be adequately and effectively apprised of his rights toremain silent and to have the assistance of counsel. If theaccused indicates in any manner that he wishes to remainsilent or to consult an attorney, interrogation must cease,and any statement obtained from him during interrogationthereafter may not be admitted against him at his trial, at


POST CertificateRequirements

Basic• Successful completion of the Police

Academy.• 1 year police service.

Intermediate(5% incentive pay)

• 4 years of law enforcement experiencewith an Associate Degree.

• 2 years of law enforcement experiencewith a Baccalaureate Degree.

Advanced(2.5% incentive pay)

• 9 years of law enforcement experiencewith an Associate Degree.

• 6 years of law enforcement experiencewith a Baccalaureate Degree.

• 4 years of law enforcement experiencewith a Master Degree.

* Please submit your paperwork to the Training Unit 60days in advance of your anniversary date. Officers shouldhave copies (not originals) of college degrees, transcriptsand/or any course certificates on file as part of their train-ing files. These documents need to be attached to POSTcertificate applications.

Reliable Informer– continued from page 33

least in the prosecution’s case-in-chief. Critically, however,a suspect can waive these rights. To establish a valid waiverof Miranda rights, the prosecution must show by a prepon-derance of the evidence that the waiver was knowing, in-telligent, and voluntary.”

The Court continued, “Determining the validity of a Mi-randa rights waiver requires an evaluation of the defendant’sstate of mind and inquiry into all the circumstances surround-ing the interrogation. When a juvenile’s waiver is at issue,consideration must be given to factors such as the juvenile’sage, experience, education, background, and intelligence,and whether he has the capacity to understand the warn-ings given him, the nature of his Fifth Amendment rights,and the consequences of waiving those rights.”

The Court pointed out that the lower courts agreed thatNelson, despite his age, made a knowing, intelligent, andvoluntary waiver of his Miranda rights. The question waswhether the interview should have stopped after approxi-mately three and a half hours, when the minor asked tospeak with his mother.

The Court stated, “Whereas the question whether a waiveris knowing, intelligent, and voluntary calls for an evaluationof the suspect’s state of mind, the same cannot be said fordetermining whether a suspect’s postwaiver statement re-quires the immediate cessation of police questioning.... Toavoid difficulties of proof and to provide guidance to officersconducting interrogations, this is an objective inquiry. In-vocation of the Miranda right to counsel requires, at a mini-mum, some statement that can reasonably be construed tobe an expression of a desire for the assistance of an attorney.”

According to the Court, “[I]t is not enough that a suspectmakes a reference to an attorney that a reasonable officerin light of the circumstances would have understood onlythat the suspect might be invoking the right to counsel. Ra-ther, the suspect must articulate his desire to have counselpresent sufficiently clearly that a reasonable police officer


in the circumstances would understand the statement to bea request for an attorney.”

The Court further noted that the same principles apply tothe right to remain silent. According to the Court, “The re-quirement of an unambiguous and unequivocal assertionlikewise applies to a suspect’s invocation of the right to re-main silent. Not only is there no principled reason to adoptdifferent standards for determining when an accused has in-voked the Miranda right to remain silent and the Mirandaright to counsel, but applying different rules would be dif-ficult for law enforcement officials to implement in the in-terrogation setting, especially where the suspect’s ambiguousstatements may relate to both the right to counsel and theright to remain silent.”

The Court stated that, although the United States SupremeCourt has not yet ruled on this issue, there was no persua-sive reason to exempt juveniles from the objective standardfor the invocation of Miranda rights after those rights havebeen waived. The Court noted that there are several specificsafeguards to protect minors who are subject to custodialinterrogations.

The Court then stated the basic rule, “[O]nce a juvenilehas made a valid waiver of the Miranda rights, any subse-quent assertion of the right to counsel or the right to silenceduring questioning must be articulated sufficiently clearlythat a reasonable police officer in the circumstances wouldunderstand the statement to be an invocation of such rights.”

The Court then looked at the facts in Nelson’s case. TheCourt noted that a juvenile’s request to speak with a parentis not a presumptive invocation of Fifth Amendment rights.The Court then looked at the facts of the case, including areview of the video of the interview, and stated, “After waiv-ing his Miranda rights, defendant was open and responsiveto questioning on any topic. Defendant, who was 15 yearsold, appeared confident and mature. About three and a halfhours into the interview, the investigators asked why defend-ant hurt [the victim] and whether he was willing to take apolygraph test. Defendant responded by asking to call hismother, and, when asked for the reason for the call, he of-fered no indication that he wanted an attorney or that he didnot want to talk further. Instead, he specifically stated hewanted to let his mother ‘know what’s happening,’ and toask her what he should do because he was being accusedof murder. On this record, the trial court properly concludedthat a reasonable officer in the circumstances would nothave viewed defendant’s request to call his mother as a clearand unequivocal invocation of the Miranda rights.”

The Court continued, “As the interrogation proceeded, de-fendant asked several more times to call his mother whenthe investigators again asked about a polygraph test, or whyhe hurt [the victim]. The investigators generally did not in-quire into the reasons for the subsequent requests, but de-fendant clarified a second time that he wanted to let hismother know ‘what’s going on right now’ and where he was.Given the circumstances surrounding each of defendant’srequests, a reasonable officer would not have understoodany of them as an unambiguous assertion of Miranda rights.Although defendant became increasingly upset during the


Fingerprint EvidenceFound On A MoveableObject Inside A Resi-dence Was SufficientTo Support A Convic-tion For ResidentialBurglary

Under California law, a person is guiltyof burglary when the person enters abuilding with the specific intent to com-mit theft or a felony inside. What levelof evidence is sufficient to support a con-viction for residential burglary?

ReCenTLy, THe SeCOnD DISTRICT Of THe CALIfORnIACourt of Appeal looked at this question in the case of Peo-ple v. Tuggle (2012) 2012 DJDAR 2525.

In the Tuggle case, a model home for a new residentialhousing project was located in Los Angeles County. The de-veloper contracted with an interior design business to fur-nish the model home. The model home was cleaned once amonth by a vendor who cleaned once a month. The clean-ing included dusting and mopping virtually everything. Dur-ing the period that the model home was staged, no newfurnishings were brought into the home. After a certain date,more than two years after the model home opened, the pro-ject closed, the model homes were locked, and the regularcleaning ended. After the home was closed and locked, no-body was allowed to enter other than a superintendent.

After the model home was locked and closed, the super-intendent discovered on a fall day that someone had brokeninto the model home and ransacked it during the previousweek. Several items were taken from the home, includinga refrigerator and a stereo speaker system. When the super-

intendent walked around the model home, he discovereda glass candleholder vase and other items on the floor nextto the fireplace. It appeared that the vase had been moved.The superintendent contacted the Los Angeles County Sher-iff’s Department.

Community Services Officer Ann Mercer responded tothe model home. She noticed “dust rings,” indicating thatobjects had been moved. She lifted fingerprints from thecandleholder vase and noted that it had been next to thefireplace.

Later, Deputy Jeffrey Collins reviewed the fingerprint cardprepared by Mercer and found that the fingerprint matchedthe fingerprint of Allen Tuggle, Jr. Tuggle was not associatedwith the developer, the interior design contactor, or thecleaning vendor in any way.

Tuggle was placed under arrest by Deputy Daniel Mahoney.Tuggle told Mahoney that he had not been in or around anymodel homes in the previous two years. When Mahoneyasked if Tuggle’s fingerprints would be inside any modelhome in the area, Tuggle replied that he was in no positionto look at or buy a home and that his fingerprints shouldnot be in any model home.

Tuggle was charged with burglary. He took his case to trial.At the trial, Deputy Collins qualified as an expert witnessand testified that the fingerprints on the vase matched Tug-gle’s known fingerprints. The prosecutor then asked Collinsif the fingerprints could have been left on the vase for aperiod of several years – before it was placed in the modelhome. Collins testified that fingerprints are created by oilsand amino acids on the hands and, as a result, are delicateand could evaporate from a surface after as little as 10 min-utes. Collins also testified that, if a fingerprint is not contami-nated and does not evaporate, it will remain on an object.

Tuggle was convicted of burglary. He then appealed hisconviction to the Court of Appeal. He argued that the evi-dence was insufficient to support his conviction. He alsoargued that Deputy Collins was not qualified to testify re-garding how long fingerprints remained on an object. TheCourt of Appeal reviewed Tuggle’s case and upheld his con-viction.

In its written decision, the Court first stated, “[T]he evi-dence of regular cleaning of the home, combined with Tug-gle’s post-arrest statements, permitted the jury reasonablyto infer that the fingerprints were in fact impressed at thetime of the offense and not at some earlier date.” Moreover,the home was cleaned before it was opened to the publicbecause of significant dust, and Tuggle testified that he had


interview, and quieter toward the end, the questioning prop-erly continued because defendant never communicated anintent to stop the interview altogether.”

The Court concluded, “[W]e hold that, once a juvenilesuspect has made a valid waiver of his or her Miranda rights,any subsequent assertion of the right to counsel or right tosilence during questioning must be articulated sufficientlyclearly that a reasonable police officer in the circumstances

would understand the statement to be an invocation of suchrights. Because this standard is an objective one, the invo-cation determination does not call for an evaluation of thejuvenile’s state of mind or subjective desire....”

The Court’s ruling in the Nelson case is an extremely help-ful statement of the rules for determining when a minor hasinvoked his or her Miranda rights after a post-Miranda in-terrogation has begun.


Visit ProtectSanJose.comRegularly for the latest on

#pensiongate

COPS’ COP NOMINATION FORMName of Nominee:

Rank: Badge #: Age:

Contact #: or Cell #: Single: Married:

Date of Hire: Current Assignment: Supervisor:

Previous Assignment:

Department Member Since:

Activities Outside the Department:(Volunteer, church, civic groups, etc.)

Activities Within the Department:(Tip-a-Cop, officer fundraisers, peer support, etc.)

Awards or Honors (Department or Community):

Please attach a letter or reference explaining why this officer deserves recognition. You may attach any docu-mentation to support your nomination including: reports, training, pictures, press information, etc.

Your Rank and Name: Assignment:

Contact Phone Number(s):

special knowledge, skill, experience, training, or educationmust be shown before the witness may testify as an expertand may be shown by any otherwise admissible evidence,including his own testimony.... The qualifications of an ex-pert must be related to the particular subject upon which heis giving expert testimony. Whether a person qualifies as anexpert in a particular case depends on the facts of the caseand the witness’ qualifications.”

The Court stated, “[C]ollins had special knowledge, train-ing, and experience that qualified him to testify as an expertin the identification of fingerprints at crime scenes and thecircumstances under which identifiable fingerprints may belifted from an object. Based on this education and experi-ence, testimony regarding the durability, contamination, anddestruction of fingerprints was not outside the realm of hisexpertise.”

The Court’s decision in the Tuggle case is a practicaldemonstration of the use of fingerprint evidence to supporta conviction for burglary.

Editor’s Note: Lance Bayer is a private attorney spe-cializing in police training and personnel issues in theBay Area and can be reached by writing to: Lance Bayer,443 Lansdale Avenue, San Francisco, CA 94157, by cal-ling 415.584.1022, or by email at [email protected]

Reliable Informer– continued from page 35

not been in any model homes in the previous two years.There also was testimony that dust remained to be a prob-lem, but that the home was maintained in “spotless” con-dition when the model home was open to the public. DeputyCollins also testified that, in order for a fingerprint to remainon an object, it could not be moved, washed, cleaned,dusted, or anything like that because it would wipe out thefingerprint.

The Court stated, “From this evidence, the jury reasonablycould infer any fingerprints that had been placed on the vasemore than two years before Tuggle’s arrest would have beenobliterated.... Based on this evidence, the jury reasonablycould conclude Tuggle left his fingerprints on the vase dur-ing the commission of the burglary and not at some priortime....”

The Court also ruled that the trial court did not commit anerror by allowing Deputy Collins to testify as an expert re-garding the characteristics of fingerprints. According to theCourt, “A person is qualified to testify as an expert if he hasspecial knowledge, skill, experience, training, or educationsufficient to qualify him as an expert on the subject in whichhis testimony relates. Against the objection of a party, such


cers may take advantage of goes by the “Kill Your 2nd” name.A few savvy professionals have created another avenue forhomeowners and real estate investors to keep their proper-ties. in short, if a homeowner, commercial building owner,or apartment building owner has a large 2nd lien then these“kill your second” programs offer a way to eliminate the2nd lien through various negotiation tactics. homeownerscan often kill their 2nd for as little as 10 percent of the loan.Although not a government program like hArP, this “killyour 2nd” often does have hardship guidelines.

People have used the Kill Your 2nd program to make theirhousing situation more sustainable, and sometimes they useit in conjunction with a loan modification. Oftentimes withloan modifications homeowners will only get the first loanmodified leaving a large second loan. Killing their 2nd lienoften allows homeowners or real estate investors to createa more sustainable situation for their home or investmentsituation.

Editor’s Note: Any police officers that would like addi-tional info about these or any other programs may feelfree to contact me at [email protected]


FOr POlice OFFicers ANd OTher FirsT resPONderswho wish to be proactive about their unsustainable housingsituations, a few new options may assist homeowners whowish to protect their home on the range.

The new Federal hArP (home Affordable refinance Pro-gram) program that debuted in 2009 recently came out withnew guidelines that may assist police officers and others whowish to refinance their home or investment properties.

The new guidelines offer new benefits with the highlightsbeing that banks can refinance up to 200% lTV (loan ToValue). in other words, if a homeowner’s house sits way under-water they may be able to re-finance at a lower rate. ThehArP program does not look at value of the home (no ap-praisal) or the homeowner’s credit score.

As usual with these federal programs, many guidelinesexist so not everyone will be eligible. homeowners cannotbe late on their payments and the mortgage must be ownedor guaranteed by Freddie Mac or Fannie Mae.

This program certainly does not represent a silver bullet tostruggling homeowners. even if a homeowner can refinancethey may simply be slowing the bleeding of an already se-rious financial situation. For example, it may not make sensefor a homeowner to keep a home that is $100,000 upside-down even if they can obtain a lower interest rate. it’s thesame situation with loan modifications. homeowners maysimply be paying less over a longer period of time but inthe long run they will not be building up equity but ratherfeeding the coffers of the bank. if the homeowner decidesto sell in a few years then they may still underwater and willnot have the tax benefit of the soon to expire Mortgage debtrelief Act of 2007.

Another relatively unknown pilot program that police offi-

New Options ToKeep Your Home

A real estate and tax attorney recentlymentioned that she still considered thereal estate industry to be “the wild, wildwest” because of the constant flux, theillegal foreclosing actions and the con-stantly changing rules and regulations.

“The new Federal HARP (HomeAffordable Refinance Program)program that debuted in 2009recently came out with new guide-lines that may assist police offi-cers and others who wish to re-finance their home or invest-ment properties.”

Real Estate News

Keith Rockmael

VANGUARDTo Advertise, contact the POAOffice at: Tel. 408.298.1133


What Is YourAsset AllocationStrategy?

Have you recently reviewed your invest-ment mix in your Plan account as wellas any additional holdings in bonds,cash and other investments?

ING Brief

Gary Bozin

It IS a GooD IDea to Do So to Help make SuReyour asset allocation is in balance and in line with your in-vestment objectives.

What that means in english is that your money may not beinvested in the same percentages, as they had been origi-nally. How does this happen? market performance.

For example, let’s say you worked with your financial pro-fessional to decide how much risk you are willing to take,and together you designed an investment mix (i.e., assetallocation) accordingly. on January 1, you allocated yourplan contributions from each paycheck as follows:

• 60% in stock investments

• 25% in bond investments

• 15% in cash/stable value investments

By the next January, it is likely that if you looked at youraccount statement, you probably would Not have the same60%/25%/15% diversification with which you originallystarted.

Why the difference? again, market performance. each in-vestment changes at a different rate. While your eggs maynot all be in one basket, you may have too many or too fewin different baskets than you originally planned. this couldmean that your money is not working for you in the sameway that you intended it to.

How do you help avoid this? Rebalancing your investmentmix periodically helps to keep your investment mix in linewith your objectives and risk tolerance. (1) Simply accessyour account online to make the necessary changes your-self or, (2) if you haven’t rebalanced your plan portfolio in

a while, or if your objectives have changed, now could bea good time to talk to your ING Representative or other fi-nancial professional.

While asset allocation and rebalancing are accepted in-vestment strategies, they do not assure or guarantee betterperformance and can’t protect against loss in decliningmarkets.

Neither ING or its affiliated companies or representa-tives offer legal or tax advice. Consult with your tax andlegal advisors regarding your individual situation.

For more information on asset allocation, contact yourING representative today. Call or stop by the San José INGoffice. We are at 4 North 2nd Street, Suite 440 (acrossfrom City Hall) and our local number is 408.881.0110.

You should consider the investment objectives, risks, andcharges and expenses of the variable product and its under-lying fund options carefully, before investing. The fund pros-pectuses, information booklet and investment option factsheets containing this and other information can be ob-tained by contacting your local representative. Please readcarefully before investing.

Important InformationGRoup aNNuIty CoNtRaCtS aRe loNG-teRm IN-

vestments designed for retirement purposes. account valuesfluctuate with market conditions and when surrendered, theprincipal may be worth more or less than the original amountinvested. money distributed from the annuity will be taxedas ordinary income in the year the money is distributed. anannuity does not provide any additional tax deferral bene-fit, as tax deferral is provided by the plan. annuities may besubject to additional fees and expenses, to which other tax-qualified funding vehicles may not be subject. an annuitydoes offer other features and benefits, such as lifetime in-come payments and death benefits, which may be valu-able to you.

Insurance products are issued by ING life Insurance andannuity Company. Securities are distributed by ING Finan-cial advisers, llC (member SIpC), one orange Way, Wind-sor, Ct 06095-4774, or through other Broker-Dealers withwhich ING has a selling agreement. C10-0421-003 (05/10)

Editor’s Note: Please call Peter Ng, your ING Repre-sentative, if you would like assistance in reviewingyour account. Peter can be reached at 408.386.6061


The Board was notified of the death of Police Sergeantglen castlio and Police officer elizabeth cunningham. Thechair requested a moment of silence.

The Board approved (8-0-1) the hiring of reed Smith LLPfor general counsel and investment services, ice miller fortax services, and Saltzman and Johnson Law corporationfor domestic relations orders services. in other business, thechief investment officer and the chair of the investmentcommittee gave an update on investments. The Board dis-cussed the NBC News Investigative Reports and the subse-quent ethics complaints, but took no further action. TheBoard approved (8-0-1) a cost study for the purchase ofLeave of absence service for Fire members. The Board ap-proved (8-0-1) the Board's actuary cheiron's actuarial val-uation ending June 30. 2011. Trustee Sunzeri departed at10:30. The Board approved (6-1-2 Sunzeri absent, Bacigalupino) cheiron's June 30, 2011 other Post employment Ben-efits (oPeB) Plan actuarial valuation with an amendmentto come back to the Board for the city's request for addi-tional study. The Board also approved (7-0-2 Sunzeri absent)a policy to implement the council's amendment to munic-ipal code 3.36.080 B authorizing dues deduction for cer-tain qualified organizations (i.e., association of retired Po-lice officers and Firefighters, SJPoa, Widows and orphans,Fire museum, and SJPBa).

at 11:35, the Board received paperwork from attorneymark renner for a lawsuit alleging Breach of Fiduciary dutyby the retirement director russell crosby and former re-tirement Plan employee michael moehle.

The Board received updates on the Payroll audit and FLSaovertime payments.

The meeting was adjourned at 12:47 Pm.additional details on this or other meetings are available

on the retirement Board’s website: www.sjretirement.com/PF/meetings/agendas.asp or go to: http://sanjose.granicus.com/viewpublisher.php?view_id=42 where you can watcha video of the meeting.

Editor’s Note: If you have any questions on these mat-ters, do not hesitate to contact me at [email protected]

Board Meeting

Chairman Sean Kaldor called the meet-ing to order at 8:37 AM on March 1,2012 in the City Hall Council West WingRoom118/119 with BoardmembersDavid Bacigalupi, Sean Bill, DamonKryzter, Drew Lanza, Elizabeth Rounds,Vice Chairman Richard Santos, Vin-cent Sunzeri present. BoardmemberConrad Taylor resigned after last meet-ing, and the active Police representa-tive has not been filled.

Police&Fireretirementreport

David ‘Baci’ Bacigalupi

The Board granTed (8-0-1) Service reTiremenTSto: Police Sergeant richard Brooks, 26.98 years of service,effective april 2, 2012. Police Lieutenant david Storton,27.36 years of service, effective april 14, 2012.

The applications for a change of Status for Police officerLouis Zapata and Fire captain Todd Spellman were defer-red at the applicants' requests.

The Board granted (8-0-1) a change of retirement date to:Police officer eric grimes from January 1, 2012 to January5, 2012.

The Board approved (8-0-1) the requests to rescind theService retirement to: Police Sergeant robert Lopez, ap-proved for January 21, 2012.

“The Board was notified ofthe death of Police SergeantGlen Castlio and Police Offi-cer Elizabeth Cunningham.”


1. GET $$ – A nEW lAW HAS PASSEd THAT AlloWSsome homeowners to receive money from a successful shortsale. The transaction would need to qualify under obama’snew legislation that became law January, 2010.

2. Improved Tax Consequences – A lender may exercise theright to issue you a 1099 to collect the uncollected mortgageamount of a short sale. If the homeowner qualifies, theycould be exempt from this 1099 under the Mortgage For-giveness debt Relief Act of 2007. Some lenders have statedthat a 1099 most likely would not be sent out if the finan-cial status reported in a short sale submission proves to be

difficult to collect any future debt. Keep in mind that col-lecting the debt is costly and sometimes these bad debts aresold off to collection agencies for pennies on the dollar.Sometimes the deficiency can be reduced by the lender orthe collection agency.

3. Protect your Credit History – There have been ongoingdebates on how a short sale will actually affect your creditreport. The fact that a short sale was concluded instead ofa foreclosure should show that the borrower did somethingto redeem themselves. The reality is each person’s credithistory depends on how the creditor reports your creditperformance. Some homeowners have reported getting a"Paid in Full" or "Satisfied" on their credit report after a shortsale. When negotiating a short sale, it is possible to requestremoving any mortgage “lates” as a condition of the shortsale, but not always.

The importance of credit is many times overlooked in theeyes of a financial distressed homeowner. Most of the timeif they are about to lose their home, other bills aren’t get-ting paid because they are trying to save money to move outof the home and find a new home. Protecting your creditscore allows you a short time to wait for your score to in-crease, also, it affects any reliance on credit cards, autoloans, getting approved to rent a home, etc.

It is recommended to always seek professional advice be-fore making a decision to go through with a short sale. Everysituation is different and decisions must be well thought outto receive the best outcome. As a Real Estate agent, I can-not give tax and/or legal advice, however I can direct youto proper professionals.

Note: For more information or if you have any questions,please feel free to email me. I will be more than happyto help without any obligation to you. I have success-fully negotiated and closed well over a hundred shortsales. Send me an email at: [email protected]

Why HomeownersNeed To ConsiderA Short Sale

Real Estate Perspective

Karen Nelsen

“The fact that a short salewas concluded instead of aforeclosure should show thatthe borrower did somethingto redeem themselves.”

There have been so many news articlesabout homeowners walking away fromtheir financial obligation to their mort-gage. In response, there has been a lotof opinions about how these homeown-ers are not taking an ethical stance andavoiding their responsibilities. The re-sult will be billions of dollars spent bythe U.S. government to aid lenders andhomeowners until the housing marketstabilizes. Ultimately, this means thenation as a whole will be responsible forstabilizing the housing market throughhigher taxes. Besides maintaining yourethical integrity attempt of meeting yourfinancial obligation to the lender, thereare considerable benefits to a home-owner who completes a short sale.

S.J.P.O.A.

1151 N. Fourth St.San Jose, CA 95112

NON-PROFIT ORG.U.S. POSTAGE

PAIDSan Jose, CAPermit No.1551

Dan ValcazarFormer SJPD sergeant

Cell: 408.607.1119or [email protected]

www.customerservicerealty.comNMLS #369137 DRE #01310756

Customer Service Reality3150 Almaden Expwy, Suite 200

San Jose, CA 95118

2012 is going to be great!I’m at your service – Connect with us and I’ll doall the follow up. I appreciate your referrals.Dan Valcazar is a Broker, MLO, and CDPE. All three designationsmean he has more experience and qualifications to serve you.Choose wisely when selecting a real estate professional.

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