The City of Oakland’s Public Works Department uses people sentenced to incarceration to do dumping remediation, vegetation management, and other clean-up work through an Alameda County Sheriff’s Department program, according to city documents, public records and statements from city workers. The workers receive no pay or benefits. The Sheriff’s Office administers the program, known as the Sheriff’s Work Alternative Program [SWAP], under an agreement with the City of Oakland that was executed in April of 2019. SWAP workers who have been sentenced to under 365 days in jail can trade an 8- to 10- hour work day in SWAP for one day of incarceration.

The city also participated in the SWAP program from 1983 until 2009, when a dispute with the Sheriff’s Office—over required workmans’ compensation insurance—motivated the City to discontinue it. Last year, the City Administrator renegotiated the contract with the Sheriff’s Office, add- ing SWAP workers to the City’s Excess Insurance and Workers’ Compensation program instead of the workers’ compensation program that would normally cover City workers. The city was required to seek City Council authorization to add the SWAP workers to the Workers’ Compensation fund through a Council resolution. The City Council approved the resolution in October of last year and SWAP workers began working under the management of the City’s public works department in May 2019, according to documents received through a public records request.

The City was in the midst of often headline-making budget and negoti- ation struggles with the City Council and SEIU 1021, respectively, when records show the first SWAP work- ers came on line. In May and June, a proposed funding allocation for street repairs created a brief, but public, tug of war between Council members and the City Administration, specifically around 1021’s share of work.

The replacement of vested union workers with other kinds of workers has long been a bone of contention between the City and 1021. Under certain circumstances, the City is able to hire Temporary Part Time (TPT) workers, for example, to do jobs that should be assigned to vested union workers. These TPT workers earn less, cannot accrue seniority, can be fired at will and don’t get paid over- time–among many other differences, though they are nominally union members. SEIU 1021 even sued the city over this practice. Rank and file members have also long complained about city-backed volunteer programs that bite into union areas of work—for example, volunteers at Lake Merritt are instructed not to clean up areas outside the water for this reason.

It’s unclear if the SWAP agreement was carried out with the cooperation or knowledge of SEIU 1021 leadership. SEIU 1021 spokesperson Carlos Rivera did not have information on SWAP available when contacted for this article. Public Works Public Information Officer Sean Maher said that the SWAP issue had not come up in negotiations and was not included in a recently inked tentative agreement. Maher referred most questions to the Sheriff’s Office, and said that the City only “facilitates” SWAP. According to Maher, “The City’s role is to facilitate locations where the participants can perform the associated community service work.”

But the City’s contractual role is much more extensive than Maher’s response suggests. The executed SWAP agreement with the Sheriff’s Office contains explicit language requiring supervision. There is no doubt that the City is required to supervise and direct SWAP participants as if they were employees, likewise observing all OSHA requirements specific to the roles and work assignments. The City must also notify SWAP if assignees leave their assignments without authorization. Likewise, the City’s report to Council refers to the activities as “manual labor” and also states that in the previous iteration of SWAP, all assignees were under “the direct supervision, care, custody, and control of City staff during the course of their placement.”

A records request shows that the workers sign in and are dispatched from the Public Works department. The documents also show that the SWAP assignees are often embedded among several established work crews of City 1021 members. As of August, there were at least 50 SWAP participants being dispatched weekly to locations throughout the City for clean-up activities, according to the documents—on some days, especially weekends, as many as 19 SWAP participants are working for Public Works.

Tim Glaser, an SEIU 1021 member and Public Works employee, said that he was working as an acting supervisor in May when the program began. He was required to collect the SWAP IDs from the workers when they arrived in the morning and fax a record of their attendance to the Sher- iff’s Office. SWAP workers were then mixed in with union work crews and dispatched to various areas of work.

Glaser–a City employee and 1021 member for over 18 years–said he was concerned over the sudden appearance of SWAP workers performing union city work. Glaser had worked in Public Works during the previous SWAP contract that ended in 2009 and had filed a grievance during those years–but, he said, nothing ever came of it. This time, he says he also sent queries to union leadership about the reappearance of the program, but did not get a response.

Glaser has several concerns about SWAP assignees performing Public Works labor–their level of training, for one thing. But Glaser also notes that many of the SWAP participants are taking weekend shifts, performing roles in which regular union workers often would earn overtime pay for. In fact, assignment emails show the City used SWAP workers for necessary weekend-specific tasks: for example, on Saturday, August 17, 15 SWAP participants were dispatched to clean the West Oakland race course ahead of Oakland’s Triathalon Festival. Glaser said he’s also concerned about the ethics of the program. “It seems like some type of slavery,” he noted.

Recent public statements by Council Member Noel Gallo suggest that his office made use of SWAP workers for his weekend community clean-up activities. At the July 16 City Council meeting [2:50:38], Gallo noted that he’d recently completed “certification” with the Sheriff’s Department and said there would now be “volunteers” from the “Sheriff’s Department…from 8 to 4 pm” on weekends. Emails from Public Works reveal that SWAP participants for that following Saturday, July 20, were sent to areas in Gallo’s district 5.

SWAP participants can only ac- cess the program through a Judge’s decision during sentencing in lieu of incarceration. The SWAP program previously charged a registration and daily fee of participants, but accord- ing to Sheriff’s Office PIO Ray Kelly, participants are no longer required to pay anything to participate.

The City’s report to the City Council on the resolution allowing SWAP makes it clear that the City’s main objective in contracting with SWAP is saving money—the report refers to an expected “20,000” work hours that SWAP assignees will do and “$2 million” worth of labor costs saved yearly as a result.

It should be noted that the report, which originated from Public Works Director Jason Mitchell, appears to have misrepresented the SWAP program as involving mostly those paying off misdemeanor fines with volunteer work. SWAP differs from doing community service in lieu of paying fines for minor offenses—perhaps the most significant difference is that SWAP participants go to jail to finish their sentence if they are found in violation of their agreement with the program.

Kelly clarified that the SWAP program is only open to people in the justice system facing incarceration. Throughout SWAP documents–including the City’s agreement with the Sheriff’s Office–the program is often referred to as “work-release” and the assignees as “inmate workers.” According to Kelly, SWAP assignees generally do work for the Sheriff’s Office, such as washing patrol vehicles, or performing various tasks in Alameda County Animal Services. He noted it is unusual for a city government to use SWAP labor in lieu of regular waged jobs.

This article originally appeared on his blog, Hyphenated-Republic, where you can find more of his writing.

Jamie Omar Yassin is an independent reporter in Oakland covering city politics, public land, homelessness, and the Police Commission.