Mirkarimi

Supervisors advised against Mirkarimi recusals, essentially removing their gags

Sasha Cuttler
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76
Supervisors advised against Mirkarimi recusals, essentially removing their gags

It’s looking increasingly unlikely that any members of the Board of Supervisors will be recused from next week’s big vote on whether to sustain the official misconduct charges against suspended Sheriff Ross Mirkarimi, particularly given an advice letter written today by attorney Scott Emblidge, who is advising the board.

Mirkarimi and his attorneys were hoping some supervisors would admit discussing the case with Mayor Ed Lee or others – particularly Sup. Christina Olague, who is at the center of the controversy about whether Lee committed perjury when he denied, while testifying under oath, ever consulting with any supervisors about the case – and they were disappointed with Emblidge’s advice.

“Scott Emblidge parrots the language of the City Attorney in his recommendation against recusal,” Mirkarimi attorney David Waggoner told us, taking issue with the relationship Emblidge and his firm have with the city and the fact that he also served as legal counsel to the Ethics Commission, some of whose members were unaware of that dual role and expressed concern. “The board must appoint independent counsel.”

In his advice letter, Emblidge did take a similar position to that urged by the City Attorney’s Office, which argued that supervisors are assumed to be politicians who have some relationship with the person that they’re being asked to judge and that analogizing it to a jury in a criminal case isn’t accurate.

“That analogy is misguided. The Charter does not provide for resolution of official misconduct charges by a body unfamiliar with the parties or the facts of the dispute. Rather, it specifically entrusts that decision to the Board of Supervisors, a body composed of individuals who almost certainly would have had dealings with anyone charged with official misconduct,” Emblidge wrote in a letter requested by Board President David Chiu. “Rather than a jury trial, this proceeding is more like an administrative hearing involving employee discipline or other important rights.”

Emblidge said the legal standards indicate that a supervisor must have a financial interest in the decision or be so “personally embroiled” in the case that he/she would have already demonstrated a strong bias or animus against Mirkarimi. And even then, it would be up to a majority vote by the board to excuse a supervisor from the vote.

Such recusal votes are usually mere formalities once a supervisor claims a conflict-of-interest, as then-Sup. Gavin Newsom sometimes did on votes involving landlord-tenant relations. But given that it takes nine of the 11 votes to remove Mirkarimi – with each recusal effectively being a vote in his favor – claims of a conflict will be carefully scrutinized, which Emblidge thinks is appropriate.

“The bar should be high for recusal because of the three-fourths requirement,” Emblidge told the Guardian, making clear that was his personal rather than legal opinion.

The City Attorney’s Office strongly advised the supervisors earlier this year not to discuss the Mirkarimi case with anyone, and they have all heeded that advice and refused to discuss the case with reporters, adding to the drama surrounding a high-profile decision with huge potential long-term ramifications.

Unlike other big decisions, in which supervisors will publicly stake out positions before the vote, often making clear the political dynamics and swing votes, nobody really knows where any of the supervisors stand right now. It’s widely believed that progressive Sups. John Avalos and David Campos – both of whom have unexpectedly easy paths to reelection in November – are the most likely votes for Mirkarimi, with just one more vote needed to reinstate him.

Olague will be in a tough spot politically, torn between supporting the mayor who appointed her and a district that Mirkarimi once represented, where opposition to his removal seems strongest. Ditto with Sup. Jane Kim, a fellow former Green long allied with Mirkarimi, but also someone who backed Lee last year and has ambitions to be the next board president.

This is also a board filled with Ivy League lawyers, and it’s hard to say what aspect of this complex case will draw their focus. Will they side with those who say the decision is simply about showing zero tolerance for domestic violence, or will they share the concerns of Ethics Chair Benedict Hur, who calls this a potentially dangerous precedent that gives too much power to the mayor.

It’s even possible that someone from the board’s conservative bloc of Sups. Sean Elsbernd, Mark Farrell, and Carmen Chu might object to this costly and distracting move by government to go after one individual, making this more about limited government and deferring to voters rather than the fate of an individual for whom they have no particular fondness.

Until now, it’s been difficult to read these tea leaves, but that might be about to change. Emblidge argues that the grounds for recusal are so narrow and restrictive that even if supervisors make public statements about their thoughts on the case, that wouldn’t present a conflict-of-interest that would prevent them from voting on it, particularly now that they’re actively reviewing the record.

So, are we about to start getting some hints from under the dome about how this is going to play out? We’re listening and we’ll let you know.

Qualifying Mirakarimi’s jury

Andrew Lam
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5

The San Francisco Board of Supervisors formally received the official misconduct case against suspended Sheriff Ross Mirkarimi Sept. 18, starting the clock on the 30-day deadline that the City Charter provides for the board to take action. Board President David Chiu announced a special meeting to consider the case on Oct. 9 at 2pm. The schedule the board had previous agreed to: a 10-minute presentation by the Ethics Commission, 20 minutes by representatives of Mayor Ed Lee (who brought the case), 20 minutes by Mirkarimi’s side, a five-minute rebuttal by Lee, public comment (which could last for hours), and then deliberation by supervisors.

The drama-before-the-drama will involve what in court would be called jury selection — Mirkarimi’s lawyers want to see if any supervisors should be disqualified from voting.

It’s a critical point: It would take at least nine of the 11 supervisors to remove the sheriff, and that number doesn’t’ change if some are ineligible to vote. So every recusal is, in effect, a vote to save Mirkarimi’s job.

And it’s an open question whether some supervisors should recuse themselves. They’re supposed to be unbiased jurors, and if any of them have discussed the case with the mayor in advance, they might be forced to sit this one out.

Mayor Ed Lee was asked on the witness stand whether he spoke with any supervisors about removing Mirkarimi, and he denied it. But Building Inspection Commissioner Debra Walker said her longtime friend and political ally Sup. Christina Olague told her Lee had sought her input on the decision. Confronted by journalists, Olague denied the charge but said, “I may have to recuse myself from voting on this.”

Another possible recusal from the vote would be Sup. Eric Mar, who just happened to be called as a juror in Mirkarimi’s criminal case — and thus could have been exposed to prejudicial evidence — before those charges were settled with a plea bargain. There have also been rumors that Board President David Chiu spoke with Lee about Mirkarimi at some point.

Last month, Mirkarimi lawyer David Waggoner told the board that he wanted each supervisor to declare whether he or she has spoken with anyone about Mirkarimi, but the legal team is proceeding cautiously, wary of offending the supervisors who will now decide the fate of their former colleague.

“We’re going to respectfully ask each member of the board to state under oath who they’ve talked to about the case,” Waggoner told us.

Normally, jurors would be extensively questioned during the voir dire process, and those who had served on an elected body with a defendant for years would almost certainly be removed from the jury pool, which seems to have been the case with Mar’s disqualification on the criminal case. But that’s just one more example of how this unprecedented process is anything but normal, with city officials basically making up the rules as they go along.

The case for reinstating Mirkarimi

Andrew Lam
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113

EDITORIAL We know for a fact that on New Year’s Eve, 2011, Ross Mirkarimi, the elected but unsworn sheriff of San Francisco, had a physical altercation with his wife that left her with a bruised arm. We know she later complained about that bruise on a video lasting less than a minute. Beyond that, nobody except Mirkarimi and Eliana Lopez knows exactly what happened; there were no witnesses except the couple’s three-year-old son, no video taken during the fight, no audio recordings — nothing.

We know that Mirkarimi agreed to plead guilty to misdemeanor false imprisonment — although we also know there was never any evidence that he actually imprisoned anyone.

That’s all we really know about the incident that has set off an expensive, drawn-out, political and legal battle that could change the city’s politics for years to come. If the whole thing seems a little overblown, that’s because it is.

There is nothing in the record that justifies Mayor Ed Lee’s move to suspend Mirkarimi, and nothing that would justify the supervisors voting to remove him from office. In fact, a removal vote would set a dangerous precedent for future mayors in a city that already gives its chief executive far too much power.

Let us examine the three main reasons why the board needs to vote to restore the elected sheriff.

1. If you believe Eliana Lopez, there’s no case.

The only person other than Mirkarimi who can honestly and accurately testify about the events of New Year’s eve is Lopez — and she has been clear, consistent, and convincing in her account.

Lopez acknowledges that she and her husband have had marital issues, that Mirkarimi wasn’t as supportive or her and their young son as he should have been, that he was away from home and working when she should have been sharing domestic duties. She was considering divorce — but was worried that Mirkarimi might gain custody of their boy.

She testified under oath before the Ethics Commission that Mirkarimi was never someone who “beats his wife” (to use Lee’s utterly inappropriate terminology). He had no history of domestic violence with her.

What he did was grab her arm during an argument, leaving a bruise. Inexcusable, but hardly a sign of serious assault. In fact, Lopez testified that she bruises so easily that just playing around with three-year-old Theo can leave marks on her.

Lopez testified that she made the video to use as a tool — a bargaining chip, so to speak — if Mirkarimi ever sought to gain custody of their son. She said she believed that her neighbor, Ivory Madison, who made the video, was a lawyer and that the video would be protected by attorney-client confidentiality. She said she never wanted to go to the police and never felt physically threatened by her husband.

The mayor charged Mirkarimi with attempting to dissuade witnesses and interfere with a police investigation, but those charges were based almost entirely on the testimony of Madison, whose rambling 22-page statement was so full of hearsay that the Ethics Commission tossed almost all of it. There was absolutely no evidence of witness tampering, and those claims were dismissed.

In fact, the only reason the commission recommended removal is the fact that Mirkarimi bruised his wife and pled to a misdemeanor — one that everyone knows he didn’t really commit. Remember: It’s legal, and common, in misdemeanor cases to plead to something you never did to avoid facing trial on more serious charges.

There’s no principled way to accept as credible the testimony of Lopez and still vote to remove the sheriff. If she’s telling the truth — and we believe her — the case should end right there.

2. Mirkarimi was chosen by the voters, and the voters can freely remove him.

Ross Mirkarimi was elected in November, 2011, with a clear majority in a contested race. The state Constitution provides an excellent remedy for replacing an elected official who has lost the confidence of the voting public; it’s called the recall. With a fraction of the effort that’s been spent on this case, people who feel Mirkarimi should no longer serve as sheriff could have collected signatures and forced an election.

The City Charter gives the mayor extraordinary authority — we would say too much authority — to unilaterally suspend an elected official and seek removal. That’s a power that should be wielded only in the most extreme cases, with great deference to the will of the voters.

Lee did no investigation before filing official misconduct charges. He based those charges on unsubstantiated claims, most of which were proven false. There’s a dangerous precedent here: If Mayor Ed Lee can suspend without pay Sheriff Ross Mirkarimi on such limited evidence, the ability of future mayors to misuse this power could be alarming. And remember: There is nothing in the Charter that allows anyone to suspend or seek removal of the mayor.

3. This case mangles “official misconduct.”

There’s another dangerous element to this case, and it’s not just a legal technicality. The New Year’s Eve incident occurred before Mirkarimi took the oath of office; on that day, he wasn’t the sheriff of San Francisco. He was a supervisor.

It’s hard to claim he was guilty of “official misconduct” on a day when he had no official duties. A fascinating, but unsigned analysis by somebody who clearly has a strong legal background is posted on the web (rjemirkarimi.blogspot.com). It notes:

“If the Supervisors approve what the Ethics Commission did on August 16, they will be handing a powerful new political weapon to all mayors, present and future. Good mayors may never misuse it, but other mayors might. No longer will such a mayor be limited to examining an opponent’s conduct while in office. He will have carte blanche and a strong motive to look farther back in time for personal misconduct that occurred before his opponent took office, and to use what he finds to suspend his opponent without pay and remove him from office — all while claiming (as undoubtedly he will) to be engaged in a noble pursuit of truth and justice.”

Let’s be serious: There have been San Francisco mayors with a long record of vindictive politics, or seeking any method possible to punish their enemies. There may well be again. Do we really want to have this case — this weak case driven more by politics than reason and evidence — set the precedent for the grave step of overriding the voters and removing an elected official?

Any of these three reasons ought to be grounds to vote against the mayor’s charges. Together, they make a sound enough case that it’s hard to imagine how the supervisors, sitting as a fair and impartial jury, could come to any conclusion other than returning Mirkarimi to office. We recognize that there are political implications, that Mirkarimi’s foes will target anyone who votes to support him. And just as it’s hard for some politicians to appear “soft on crime,” it’s nearly impossible to survive in San Francisco if you’re considered “soft on domestic violence.” But anyone who doesn’t want tough choices shouldn’t run for public office. It will take courage to do the right thing here — and in the end, that’s what should matter.

Perjury charges don’t look so good for the mayor

Zelda Bronstein
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65
Perjury charges don’t look so good for the mayor

The Chron doesn’t think it’s important, but there’s some serious evidence in today’s Ex that the mayor wasn’t entirely forthcoming when he testified before the Ethics Commission. The declarations from Debra Walker and Aaron Peskin are attached at the end of the story; they’re worth reading.

Walker is very straightforward: She says she’s friends with Sheriff Ross Mirkarimi and his wife, Eliana Lopez. She’s also been close friends with Sup. Christina Olague:

Ms. Olague and I often got together for coffee or movies, and we talked often about land-use issues. I wrote a letter of support for Ms. Olague to Mayor Lee, asking him to appoint her as supervisor. At her request, I loaned her a painting to hang in her office when she took office.

All of that is consistent with what I’ve heard about their friendship, and it doesn’t sound like Walker was ever out to get Olague or to put her in a bad situation.

Then Walker  explains that during the week of March 6, she was talking to Olague and complained about the Mirkarimi case. “She said the mayor had asked her about the case when they were talking about other issues, and had asked her for her thoughts.”

The declaration goes on a bit, with plenty of backup to the idea that Olague and Lee had discussed how to deal with the sheriff. Which doesn’t surprise me — I have heard from other prominent people in the city that Lee reached out to them for advice on whether to suspend Mirkarimi.

But it’s a problem for two reasons. One is that Olague, sitting as a judge in this case, isn’t supposed to have talked to anyone else about it — certainly not the prosecuting authority, the mayor.

The other is that Lee denied under oath that he had talked to any of the supervisors about the case.

Debra Walker isn’t a fan of Ed Lee, but she would have had to go to considerable lengths to create this level of fiction. It rings honest to me, particularly when she notes that “on June 29, 2012, at 2:10 pm, I received a phone message from Supervisor Olague saying ‘Debra, the converstaion never happened.'”

Look: This is a sworn statement, made under penalty of perjury. So either Walker’s lying and guilty of perjury, or the mayor is. Which seems more likely?

Ditto for the Peskin declaration, which includes dates, times, places, and specific messages. Again: Did Peskin go out of his way to perjury himself — or did the mayor fail to tell the truth on the stand?

This is now part of the case, like it or not: The credibility of the mayor is one of the issues at hand — and more important, if Lee talked to Olague he probably talked to others. Who would then have to recuse themselves.

Supervisors set Oct. 9 to decide Mirkarimi’s fate

Sasha Cuttler
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139
Supervisors set Oct. 9 to decide Mirkarimi’s fate

The San Francisco Board of Supervisors officially received the official misconduct case against suspended Sheriff Ross Mirkarimi yesterday, starting the clock on the 30-day deadline that the City Charter provides for that body to take action. Board President David Chiu announced a special meeting to consider the case on Oct. 9 at 2pm.

“The last day the Board of Supervisors can act on this is Oct. 17,” Chiu told his colleagues yesterday, reiterating the schedule the board had previous agreed to: a 10-minute presentation by the Ethics Commission, 20 minutes by representatives of Mayor Ed Lee (who brought the case), 20 minutes by Mirkarimi’s side, a five-minute rebuttal by Lee, public comment (which could last for hours), and then deliberation by supervisors.

In addition, attorneys for both sides have until Sept. 25 to submit any legal briefs they want the supervisors to consider, and Mirkarimi’s attorneys are expected to raise objections to an Ethics Commission summary they considered “one-sided,” as well as getting into the issue of whether Lee committed perjury during his sworn testimony in June.

It takes at least nine of the 11 supervisors to remove Mirkarimi, and there is an open question about whether some supervisors should recuse themselves from voting because of conflicts-of-interest, which would essentially count the same as a vote in Mirkarimi’s favor.

Lee was asked on the witness stand whether he spoke with any supervisors about removing Mirkarimi, which he denied. But Building Inspection Commissioner Debra Walker said her longtime friend and political ally Sup. Christina Olague told her Lee had sought her input on the decision. Confronted by journalists, Olague denied the charge but said, “I may have to recuse myself from voting on this.”

Lee was also asked whether he tried to get Mirkarimi a city job in exchange for his resignation, which Lee denied, but former Sup. Aaron Peskin has said that permit expediter and Lee ally Walter Wong (who has refused to answer questions from the media) extended that offer through him, which Mirkarimi didn’t accept. The Ethics Commission refused to consider the perjury allegations, calling them beyond its purview, but Mirkarimi attorney David Waggoner said he plans to submit sworn declarations by Peskin and Walker to the supervisors.

Another possible recusal from the vote would be Sup. Eric Mar, who just happened to be called as a juror in Mirkarimi’s criminal case before it was settled with a plea bargain. There have also been rumors that Board President David Chiu spoke with Lee about Mirkarimi at some point. Last month, Waggoner told the board that he wanted each supervisor to declare whether they have spoken with anyone about Mirkarimi, but their team is proceeding cautiously and wary of offending the supervisors who will now decide the fate of their former colleague.

“We’re going to respectfully ask each member of the board to state under oath who they’ve talked to about the case,” Waggoner told us.

Normally, jurors would be extensively questioned during the voir dire process, and those who had served on an elected body with a defendant for years would almost certainly be removed from the jury pool, which seems to have been the case with Mar’s disqualification on the criminal case. But that’s just one more example of how this unprecedented process is anything but normal, with city officials basically making up the rules as they go along.

Mirkarimi’s wife and alleged victim, Eliana Lopez, has consistently maintained that she was never abused, except by city officials who have sabotaged and humiliated her family and taken away its livelihood. She told the Guardian that the thin charges in this case shouldn’t warrant the removal of an elected official: “You can have different opinions about Ross’s behavior, and people can have different opinions about that, but the people of San Francisco should decide who represents them.”

Lopez said she’s been dismissed and mistreated by Lee, the Ethics Commission, and domestic violence advocates: “These self-appointed white women that are part of the Domestic Violence Consortium are doing everything they can to attack me and insult me while claiming to help me, and never once reaching out to me.”

But she said that she’s hopeful the supervisors will resist political pressure during an emotionally charged election season and do the right thing: “What we need from the supervisors is brave and honest supervisors. The people of San Francisco need that.”

Stop the presses: CleanPowerSF 8, PG&E 3

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Sometimes, the good guys (and gals) win.

And so, after the Guardian started the public power movement in 1969  with the pioneering Joe Neilands expose of the PG&E/Raker Act scandal, after three  initiative campaigns to kick PG&E put of City Hall and enforce the public power mandates of the federal Raker Act and bring our own Hetch Hetchy public power to our own people, after hundreds of people worked for years inside and outside City Hall for public power and clean energy,  the San Francisco Board of Supervisors voted 8-3 Tuesday  to formally launch a CleanPowerSF project that would for the first time challenge the decades-old power monopoly of the Pacific Gas & Electric Company.

It was a historic moment. And it was a historic veto proof vote that Ed Lee, the PG&E- friendly mayor, and his ally and mentor, former mayor Willie Brown, the unregistered $200,000 a year PG&E lobbyist, will have difficulty snuffing out this time around.

The CleanPowerSF 8 were Sups. David Campos, who sponsored the legislation, Scott Weiner, who cast the deciding swing vote, David Chiu, Eric Mar, Christina Olague, Jane Kim, Malia Cohen, and John Avalos, all of whom made helpful remarks during the debate. They also voted down an attempt by the PG&E bloc to continue the vote for a week and voted against crippling amendments.

The PG&E 3 were Sups.Mark Farrell and Carmen Chiu, who tried to dilute the legislation with the crippling amendments, and Sean Elsbernd, who was strangely silent during the debate. 

I use the phrase CleanPowerSF  8 and PG&E 3 to dramatize the crucial political point and toss in a bit of Guardian history on the story.  For years, as clean energy/public power proposals were routinely voted down as a result of PG&E political muscle and power lobbying, the Guardian would use variations of the phrase. PG&E l0, San Francisco l or whatever was the PG&E margin of victory. The phrase was accurate, pin-pointed the good and bad guys and gals, lifted our spirits, and sent the message that the battle was far from over.

The hero of the afternoon was Ed Harrington, the general manager of the San Francisco Public Utilities Commission who delayed his retirement to complete the project. He got a standing ovation after his testimony backing up his legislation and deft handling of  all questions.  As Campos said, Harrington’s legislation  was as “good as you are going to get.”  No one seriously questioned his plan, figures,  marketing strategy, or key argument that his plan was fiscally and environmentally sound.

PG&E was never mentioned during the discussion and it was difficult to determine its lobbying strategy. After the vote, I asked Eric Brooks, the crafty clean power leader at the meeting,  what happened to PG&E and  its strategy. He said that PG&E, after the San Bruno disaster and other notable mishaps, was not the monopoly power it once was and that perhaps the company had decided it would rather face the slower pace of  CleanPowerSF rather than another clean energy initiative it would have a good chance of losing 

Thanks and congratulations to the CleanPowerSF 8, David Campos, Scott Weiner, John Avalos, David Chiu, Eric Mar, Chritina Olague, Jane Kim, and Malia Cohen, who voted themselves into San Francisco history.  Five of them will face the electorate and PG&E in the November election (Campos, Avalos,  Chiu, Mar, and Olague.) and they acted and spoke as if voting for CleanPowerSF would be a significant advantage to their campaigns in their districts. And thanks and congratulatons to former Sup. Ross Mirkarimi, who carried the public power flag as the unpaid campaign manager during the first two unsuccessful public power campaigns and then carried the CCA plan inside City Hall during his seven years as supervisor.  When he was voted in as sheriff last November, he handed the CCA baton to Campos who pushed the proposal through with style and solid argument that the issue was choice and providing necessary competition to PG&E’s monopoly.

The vote to start public power in San Francisco comes none too soon. The tear-down-tne-Hetch Hetchy dam forces have put the nice-sounding Proposition F to study draining the Hetch Hetch reservoir.on the fall ballot. This is the first step toward tearing down the dam.  The problem for the city is that it could ultimately lose the dam, if it isn’t moving to public power, because the Raker Act mandates that San Francisco have a municipal  system to distribute public power to its residents and businesses because the act allowed San Francisco to dam Hetch Hetchy Valley in Yosemite National Park. The Guardian’s position is that the dam is in place and  should only be torn down after the city has real public power and is able to find and afford an adequate new source for the city’s water and power supply. And that, let me emphasize,  will be a massive undertaking involving billions of dollars and incredible political challenges.   .

Much more to come in this saga that never ends,  b3

Here is Guardian City Editor  Steve Jones’ account of the vote: : http://www.sfbg.com/politics/2012/09/18/historic-veto-proof-vote-launches-cleanpowersf

And some Guardian background on the PG&E/Raker Act Scandal in my advance story: http://www.sfbg.com/bruce/2012/09/17/historic-pgeclean-energy-vote-today

Beyond the video

Andrew Lam
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124
Beyond the video

steve@sfbg.com

The Board of Supervisors received the official misconduct case against suspended Sheriff Ross Mirkarimi this week, with a majority of Ethics Commission members urging supervisors to give more weight to the 45-second video that started this sordid saga than the voluminous record they have compiled at great expense over five months of hearings.

Yet Chair Benedict Hur, the commission’s sole vote against finding that Mirkarimi committed official misconduct, last month argued that supervisors shouldn’t take such a narrow view of this decision, expressing concern about the “dangerous precedent” of removing an elected official for conduct unrelated to his job.

Ironically, Hur will be the one presenting the commission’s case to the board later this month, a decision his colleagues made because the other options weren’t good and because they said he has been so knowledgeable and fair-minded through the process. While Hur is likely to play it straight, the supervisors will have an opportunity to elicit his true perspective — raising questions that will be central to the sheriff’s future.

Will supervisors see their decision as a matter of showing zero tolerance for even minor acts of domestic violence, as Mayor Ed Lee and some women’s groups are urging? Or will they see this as governmental overkill in pursuing a punishment that doesn’t fit the crime, overturning an election and giving mayors too much power to go after their political rivals?

Is this just about Mirkarimi and his actions, or are there larger, more important principles involved in this unprecedented decision?

In the video, Mirkarimi’s wife, former Venezuelan soap opera star Eliana Lopez, displays a small bruise on her right bicep and tearfully tells the neighbor who filmed it, Ivory Madison, that Mirkarimi caused it the previous day, Dec. 31, and “this is the second time this is happening.” She also said that she wants to work on the marriage, but that, “I’m going to use this just in case he wants to take [her son] Theo away from me.”

Lopez last month spent more than three hours on the witness stand being grilled by Deputy City Attorney Peter Keith and Ethics commissioners, explaining why she made the video and how she believed Madison was an attorney and their conversations were confidential. She repeatedly insisted that she was not a victim of domestic violence and criticizing city officials and prosecutors for persecuting her family and taking away her husband’s livelihood.

There was nothing in the testimony that obviously impeached Lopez or hurt her credibility. To many observers -– particularly Mirkarimi supporters, who made up the vast majority of those giving public comments to the commission -– her testimony marked the moment when the city’s case began to unravel. Indeed, on Aug. 16 the commissioners voted unanimously to reject most of the charges that Lee filed, including witness dissuasion, abuse of authority, and impeding the police investigation.

In the end, there was just that video, and commissioners on Sept. 11 added a final statement into the record that they believed it more than anything Lopez has said since then. Even Hur said that he found it compelling, and that more may have happened on Dec. 31 than Lopez and Mirkarimi have admitted.

But there really isn’t much evidence to support that belief, and Hur said in August that it shouldn’t matter anyway. If the city’s vague and untested official misconduct language can apply to low-level misdemeanors unrelated to an official’s duties, he said, “we are opening this provision up to abuse down the road.”

 

Locking down reforms

Andrew Lam
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0

steve@sfbg.com

Realignment, California’s year-old program of diverting more inmates and parolees from state prison to county jails and probation offices, was borne of necessity: The state faced a severe budget crisis and had been ordered by the federal courts to reduce the population in its overcrowded prisons. But Realignment is proving to be a real opportunity to address inmates’ needs and reduce recidivism, particularly in San Francisco, where progressive notions of rehabilitation and redemption have deep roots.

“Realignment is the most significant criminal justice reform in decades,” says Assembly member Tom Ammiano, the San Francisco Democrat who chairs the Assembly Public Safety Committee and has helped oversee the process. “The motivation of many of us came from things that were thwarted, like sentencing and parole reform, in Sacramento for many years.”

San Francisco was uniquely positioned to thrive under the new system and to be a model for other counties that seek to improve on the 70 percent recidivism rate among state prison inmates, and the myriad problems and costs that spawns. Former Sheriff Michael Hennessey brought a variety of innovative educational and support services into the jail during his 32-year reign that ended last year (see “The unlikely sheriff,” 12/20/11).

“It’s more than an opportunity. It’s in line with the Michael Hennessey doctrine of enhancing public safety while elevating the idea of redemption, and I subscribe to that,” said suspended Sheriff Ross Mirkarimi, who successfully ran as Hennessey’s endorsed heir before Mayor Ed Lee ousted him over domestic violence allegations. “Michael Hennessey made famous the rehabilitation programs inside the jail and outside the jail.”

San Francisco was also in a good position as both a manageably sized city and county, and one that had room for the influx of inmates. It was ordered by the courts in the 1980s to reduce its crowded jail population – the peak jail population of 2,300 is now down to about 1,550 – and gained even more capacity last year when the SFPD’s crime lab scandal resulted in hundreds of drug cases being thrown out by the courts.

“It’s something that makes sense for San Francisco,” Acting Sheriff Vicky Hennessy told us. “We’re doing better than most other counties because we had the bed space and we had community programs. Michael Hennessey is a visionary…and he got these community programs out there.”

Undersheriff Ellen Brin, who oversees the jail, said the main difference among inmates that San Francisco is dealing with under Realignment – a total of 2,258 in the jail over the last year, staying an average of 60 days each, and another 306 convicts under post-release supervision – is that they’re in local custody longer than before.

“It’s sort of the same population we’ve always dealt with, but maybe we’re dealing with them on a longer term,” she said.

That creates some challenges – Brin said there are more inmates who are a little more hardened and “more sophisticated” – but it also gives local programs more of a chance to help the inmates. That was one of the arguments for Assembly Bill 109, the main legislation that created Realignment, along with five other related bills.

“That was the whole plan about AB 109 is the counties do it better,” Brin said. “For us, we’ve been doing these programs for so long, with reentry and other community programs, so it’s easy for us to manage this population because they’re here longer.”

Realignment has also prompted more collaboration among the affected local agencies – particularly the Sheriff’s Department, Adult Probation Services, and the District Attorney’s Office – and their counterparts on the state level.

“We haven’t had an overarching initiative that we’ve all been required to sit around a table and work on. This has kind of brought us together, and we’ve discovered other areas where we need to work together as well,” Hennessy said.

That has sparked new programs. For example, San Francisco just started to bring those about to be paroled from state prison into the local jail before their release in order to integrate them into the San Francisco rehabilitation system. “We’re creating a reentry cycle for them so they aren’t just getting off the bus and landing here and going directly to Probation for an interview,” Hennessy said. “Now, we’re going to try to bring them here 60 days early and provide them with wrap-around services, so that we can get them established, get them housing, give them the best opportunity we can for a successful reentry.”

With counties now responsible for the people local judges send to jail, there’s more interest in reforming sentencing laws and exploring more progressive and community-based alternatives to incarceration, which is the focus of the new San Francisco Sentencing Commission that held its first meeting last month.

“District Attorney [George] Gascon is very supportive of Realignment, DA’s Office spokesperson Stephanie Ong Stillman told us. “He has said it could have the greatest impact on justice reform in decades. San Francisco is on its way to being a model for the state.”

But the flip-side of San Francisco’s advantages has been a growing backlash against Realignment in conservative counties with disproportionately high incarceration rates and a lack of capacity in their jails – which is often a byproduct of combining tough-on-crimes policies with anti-tax attitudes, something Ammiano is now dealing with in Sacramento.

“There is a lot of push-back from the Republican Party and alarmism over Realignment,” Ammiano said, noting that he’s just waiting to be hit with anecdotal stories about a transferred inmate committing some horrific crime, even though Realignment only involves low-level convicts who committed non-violent and non-sexual crimes.

Ammiano will work with a newly constituted Board of State and Community Corrections that will distribute funds to counties that need to beef up each their jail capacities or their treatment programs. That mix hasn’t been set yet, but Ammiano said he won’t support counties that simply seek more state resources to maintain high incarceration rates.

“In one way, it’s perturbing and the other way, it’s exciting,” Ammiano said. “For me, the more the county has programs, the more sympathetic I’ll be.”

Yet in this era of chronically underfunded government entities, even San Francisco is strained. Hennessy and Brin say Realignment has brought more inmates with serious mental health issues into the jails for longer periods of time — and that has stretched their resources.

“That’s where we lack, even before AB 109, and I’d like to get more people in there who are experts in the mental health field,” Brin said.

Hennessy agreed, but added, “The mental health program we have is extremely good, it’s just overtaxed because we’re seeing many more people, and this is across the state.” Mental health isn’t the only issue. “The other thing that is a concern is housing for people,” Hennessy said, explaining that the city needs both supervised housing and regular low-income housing for former inmates returning to the community. Maintaining the Sheriff’s Department progressive legacy in the face of new challenges is one reason why Mirkarimi sees danger in Lee’s decision to overturn that election and consolidate more power in the Mayor’s Office. “It’s important that the independence of the Sheriff’s Department be preserved,” Mirkarimi said. “Programs can easily be changed by successive mayoral administration if there isn’t that check on power.” But for now, Brin said San Francisco’s various law enforcement officials have been working well to realize the potential of Realignment: “The collaboration between the criminal justice partners has just been really, really great. Everybody is working together to try to accomplish the same thing.”

The historic PG&E/clean energy vote today

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And so, after a Guardian campaign that started in 1969 to kick PG&E out of City Hall and bring the city’s own Hetch Hetchy public power to San Francisco residents and businesses, the San Francisco Chronicle reported  in Monday’s edition ( 9/17/2012)  that San Francisco “is on the threshold of taking a major step into the public power realm.”

The lead story by John Cote, under a big front page head “Clean power plan would skirt PG&E,”  nicely laid out the CleanPowerSF program and even said that the plan “would effectively break Pacific Gas and Electric Company’s decades-old monopoly on the consumer power market in its headquarters city.”

He quoted Sup. David Campos, sponsor of the legislation, as saying that “This is about giving consumers a choice. And for the choice to be meaningful, it can’t be dependent on one company deciding the energy future of this city.”  The plan goes before the board on Tuesday (9/18/2012) and public power advocates say they have the votes for passage, despite PG&E’s furious lobbying inside and outside City Hall.

What Cote didn’t say, and what the Chronicle has been blacking out for decades, is the crucial point that this clean energy/ public power plan is no ordinary vote on an ordinary issue.  It is an extraordinary vote that would  start the process to enforce the federal Raker Act of 1913 that mandates that San Francisco have a public power system because the city dammed Hetch Hetchy Valley in Yosemite National Park for its cheap public water and cheap public power.  The city got the cheap Hetch Hetchy water, but it never got the cheap Hetch Hetchy power because PG&E stole it and forced the city to buy PG&E’s expensive private power all these years. The cost: billions of dollars for decades to the taxpayers and enduring structural corruption at City Hall. The Guardian has called this PG&E/Raker Act scandal the biggest urban scandal in U.S. history. It still is.

It’s quite a story and I urge you to check out the hundreds of investigations, stories, editorials, cartoons, and graphics the Guardian has used for years to illuminate the scandal and fight to enforce  the Raker Ac t and bring our own Hetch Hetchy power to our own people in San Francisco.

Buried in the Cote story is a key political point: Mayor Ed Lee, the man who became interim mayor on a phony premise and then lied his way into a full term as mayor, reiterated his “concerns” through a spokesperson that he is, gosh, golly, gee, “concerned about the opt-out provisions, the risks associated with the contract and the cost to residents.”

Marvelous. Simply marvelous. Lee is once again enunciating the PG&E line that mayors before him, notably Willie Brown and Gavin Newsom, have used to keep City Hall safe for PG&E and undercut the threat of public power coming to San Francisco and disturbing PG&E’s questionably legal monopoly. Brown, let me emphasize, was under PG&E’s thumb before, during, and after his mayoral tenure and now operates as an unregistered, $200,000-a -year PG&E lobbyist, Chronicle columnist, and key Lee confidant  and ally.

The current public power proposal isn’t as strong as the three public power initiatives that PG&E spent tens of millions of dollars to defeat.  PG&E would still own the lines and network, handle maintenance, and send out the bills.

But the proposal would provide l00 per cent renewable power to residents who want to pay a bit more for it, build a customer base and revenue stream for city-owned renewable power generation, advance the city’s greenhouse-gas reduction goals, and set aside $2 million to study public power options.  Most important, it would be a helluva good first step toward enforcing the public power provisions of the Raker Act and kicking PG&E out of City Hall.

The supervisors and Lee should approve the legislation and move it forward vigorously and without delay.

This is a historic moment and a historic vote in San Francisco history.  The question is, who is going to be on the right side of history and who is going to be on the wrong side of history with a PG&E vote that will live in infamy?  B3

P.S. A tip of the clean energy hat to Ed Harrington, who successfully wrestled  the proposal through the sea of crocodiles and hippos at City Hall.  He delayed his retirement as general manager of the San Francisco Public Utilities Commission to finish up the proposal.  “This is the single biggest program that is even on the  horizon within the city and county of San Francisco to make any difference toward any of the goals that you have set as board members in terms of having a change in greenhouse gas emissions and climate change in San Francisco,” he told the supervisors’ budget committee last week as reported by Cote.  “This program can make a dramatic change.”  

And a tip of the clean energy hat to Sup. Campos, who put the proposal forward up against  fortress PG&E,  More: a tip of the clean energy hat and a  bow to all the many public power advocates who have fought for years to bring clean energy and public power out of the wilderness and to this position. Furthermore, I salute  Sheriff Ross Mirkarimi, who led the first  two public power initiative campaigns as the unpaid manager and then took on the herculean job of orchestrating the clean energy/cca proposal inside City Hall .when he became a supervisor. Mirkarimi is now paying the price for, among other things, successfully taking on PG&E and the PG&E establishment. His was an enormously courageous and important public service.  On guard,   B3

 

Ethics Commission rejects Mirkarimi delay request

Sasha Cuttler
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Ethics Commission rejects Mirkarimi delay request

The Ethics Commission – in a decision made by Chair Benedict Hur, to whom the commission had given the authority to make procedural decisions – today rejected a request by attorneys for suspended Sheriff Ross Mirkarimi to delay transfer of his official misconduct case to the Board of Supervisors until after the Nov. 6 election.

Mirkarimi’s attorneys argued that the decision has been overly politicized during the election season, with supervisorial challengers turning the decision into a litmus test and interest groups polling voters on whether they would be more likely to reject supervisors who voted for reinstating Mirkarimi. The City Charter requires the board to act within 30 days of receiving the official record from Ethics, which will probably happen early next week.

“The fate of the sheriff has been made a key political issue in the election by the media, candidates, consultants, mayoral appointees to commissions, and others. Sending the record to the Board immediately prior to an election deprives the Sheriff of a neutral decision-maker, as guaranteed by the Due Process clauses of the 5th and 14th Amendments,” attorney David Waggoner wrote to the commission on Sept. 10, attaching eight articles and campaign pieces linking the Mirkarimi decision to the supervisorial races.

But Hur disagreed. “There is no evidence suggesting that any member of the Board of Supervisors will disregard the facts and the law and instead vote to sustain the charges based upon perceived political pressure,” he wrote. Actually, he argued that “granting the Sheriff’s request would cause the Commission to engage in the type of political maneuvering that it seeks to avoid. The commission will not manipulate the timing of the Board’s decision in a misguided attempt to predict the nadir of public pressure on the Supervisors.”

Mirkarimi told the Guardian that he was disappointed by the decision, noting that it was Mayor Ed Lee’s piling on of excessive charges that the commission found no evidence to support that have delayed the board’s deliberations until the height of the election season. “This is so vividly and transparently political.”

Commissioners sharpen Mirkarimi case and select unlikely rep

Sasha Cuttler
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Commissioners sharpen Mirkarimi case and select unlikely rep

 The Ethics Commission wrapped up nearly six months worth of proceedings on the official misconduct charges against suspended Sheriff Ross Mirkarimi today, finalizing its findings of fact and choosing Chair Benedict Hur to make its presentation to the Board of Supervisors even though he was the sole dissenting vote against removing Mirkarimi from office. 

After making the key decisions during a marathon meeting on Aug. 16, today’s hearing was mostly about mopping up, and it was the most sparsely attended of the hearings so far. But there were still a couple of tough issues to hash out, and the commissioners who voted against Mirkarimi tried to strengthen their case at the last minute.
The City Charter mandates removal of an official if at least nine supervisors find he committed official misconduct. The commission had earlier discussed how they viewed that finding and the punishment as separate issues, but decided against recommending a punishment after discussing that charter language. 
Commissioner Beverly Hayon today sought to remove any doubt about where she stood, adding a personal statement into the record that she thought the sustained charges — its 4-1 finding that Mirkarimi’s grabbed his wife’s arm during a Dec. 31 argument and subsequently pleaded guilty to false imprisonment — warranted Mirkarimi’s removal.
In a sign that the commissioners are paying attention to the political climate that has formed up around their deliberations, she made a reference to a discussion and vote last month by the Commission on the Status of Women and sought to clarify any “confusion” about where she stood.
Commissioner Paul Renne also sought to sharpen the findings of fact by adding language indicating the commission found the testimony of Mirkarimi and his wife, Eliana Lopez, to be a less credible and compelling description of what happened on Dec. 31 than the tearful 45-second video that neighbor Ivory Madison helped her make days after the incident displaying the bruise on her arm and saying she wanted to document the incident in case they divorced and there was a custody battle over their three-year-old son. 
That language was inserted in the document without objection, a decision that drew a sharp rebuke from Lopez’s attorney, Paula Canny, during the public comment portion of the hearing. “My client wants you to know that you’re flat out wrong,” Canny said, criticizing the commission’s hostile treatment of both Lopez and Linnette Peralta-Haynes, Lopez’s confidante on the day Madison unexpectedly called the police. 
“It has to be Eliana is not credible to justify your finding,” Canny said, accusing commissioners of selecting facts to fit impressions they formed when watching the emotional video. “The only reason Eliana made that video is to be used in a custody dispute.”
Mirkarimi attorney David Waggoner tried unsuccessfully to make changes to a commission summary document that he called “very one-sided,” including trying to add language indicating that the commission had unanimously rejected most of the charges that Mayor Ed Lee brought against Mirkarimi, such as witness dissuasion, abuse of power, and interfering with a police investigation. 
Waggoner also objected to Hur’s suggestion that attorney Scott Emblidge, who is doing pro bono legal work on the proceedings for both the commission and the Board of Supervisors, calling it a conflict of interest given that the commission’s role is akin to that of prosecutor. And on that point, he found support from Renne, who was unaware that Emblidge will also be advising the supervisors, a dual role he found troubling. “I’m a little surprised and I don’t know why the board doesn’t have independent counsel,” Renne said.
Emblidge promised a “dry recitation” of the commission’s findings, but Waggoner recommended the commission’s executive director, John St Croix, when pressed by Hur for an alternative, a choice Hur rejected because St. Croix hasn’t been present at all the hearings. Finally, Renne suggested that Hur do the presentation, saying that he has been fair and represented all arguments well during the proceedings so far, something that Hayon and Commissioner Dorothy Liu enthusiastically agreed with. 
It was an unconventional decision given that Hur made strong arguments on Aug. 16 about the troubling precedent that he thinks the commission’s decision represents, saying it gives the mayor too much power and opens the door to political manipulation if the official misconduct provisions are construed so broadly.
But he accepted the duty, telling the commissioners: “I’m willing to do it. It is awkward given that I was in the dissenting view, but I’ll do my best.”The case is expected to be sent to the board by Sept. 18 and it will have 30 days to act, meaning the decision will be just a few weeks before an election in which five supervisors are running to keep their jobs.Mirkarimi’s team has sought to delay the transfer of the case until after the election, noting many political interest groups and supervisorial candidates have been publicly putting pressure on the supervisors to remove Mirkarimi.

Reinstate Ross! Reinstate Ross!

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More than l00 women supporters of suspended Sheriff Ross Mirkarimi gathered on the City Hall steps Sunday  to stand with Ross in a show of support and  a photo shoot.

The women held signs reading “Stand with Eliana and Ross, Reinstate our Sheriff” and “I believe Eliana” in English and Spanish.

Ross told the women that Mayor Ed Lee was seeking his ouster as sheriff as a way to knock out the top elected progressives in the city and to consolidate power against the progressive community.

But, he said, “as a community we stand our ground and we maintain the principles of what is just and fair.”

He said that Lee was orchestrating the supervisorial vote on his ouster to come before the November election and thus put maximum pressure on the supervisors.  He called on the community to fight back, contact the supervisors and the media and let them know that the public wants Ross to be reinstated as sheriff.

His outreach information, distributed at the event, stated: “Let the Board of Supervisors and media hear from you on behalf of Ross Mirkarimi.  He is a good man who has dedicated himself for years to serve the citizens of San Francisco.  Ironically, although his career is in Justice, he has experienced the lack of Justice at the hands of City Hall.”

And: “We elected Ross and should be the only ones to determine who is our sheriff.  Not the mayor, not the Ethics Commission, but the voters.”

The statement noted that Ross got more votes in November than did Lee for mayor and that the voters have been disenfranchised by Lee.  It also noted that “there is no precedent for suspending an official without pay.  What a terrible, unjust thing to do to a man.”

The park bond battle

Andrew Lam
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The park bond battle

yael@sfbg.com

Recreation and Parks clubhouses are privatized and cut off from public access. Public spaces like the Botanical Gardens and the Arboretum in Golden Gate Park are closed to people who can’t pay the price of admission. Event fees and permit processes have become so onerous that they’ve squeezed out grassroots and free events.

It’s been enough to infuriate a long list of neighborhood groups who have been complaining about the San Francisco Recreation and Park  Department for years.

And now those complaints have led to a highly unusual coalition of individuals and groups across the political spectrum coming together to do what in progressive circles was once considered unthinkable: They’re opposing a park bond.

From environmentalists, tenant advocates, labor leaders, and Green Party members to West Side Republicans and fiscal conservatives,  activists are campaigning to try to defeat Proposition B, the Clean and Safe Neighborhood Parks Bond. 

The bond would allow the city to borrow $195 million for capital projects in several parks around the city. It comes five years after the voters passed a $185 million park bond. 

Environmental groups like San Francisco Tomorrow and SF Ocean Edge oppose the bond, and even the Sierra Club doesn’t support it because “In recent years, we have had many concerns with management of the city’s natural places,” as Michelle Meyers, director of the Sierra Club’s Bay Chapter, told us.  

Matt Gonzalez, the only Green Party member ever to serve as Board of Supervisors president, is part of the opposition, as is progressive leader Aaron Peskin.  Joining them is retired Judge Quentin Kopp, darling of the city’s fiscal conservatives.

The San Francisco Tenants Union wrote a ballot argument opposing Prop. B. The left-leaning Haight Ashbury Neighborhood Council and the more centrist Coalition of San Francisco Neighborhoods both want the bond defeated.

Many of the people opposing Prop. B have never before opposed a city bond act. “This is very difficult for me,” said labor activist Denis Mosgofian. “Some of us always support public infrastructure spending.”

When we called Phil Ginsburg, the director of Rec-Park, for comment, his office referred us to Maggie Muir, who’s running the campaign for Yes on B. She sent a statement saying: “Unfortunately, a small group of individuals are opposing Proposition B because they disapprove of Recreation and Park Department efforts to improve our parks and better serve San Francisco’s diverse communities.” The statement refers to Prop B’s opponents as “single issue activists”

 So who are these activists, and why have they come together to oppose the parks bond?

 Many started with, as Muir put it, a single issue.  Journalist Rasa Gustaitis  didn’t want to see fees to enter the Botanical Gardens and Arboretum in Golden Gate Park.  West of Twin Peaks resident George Wooding was upset that Rec-Park has been leasing public clubhouses to private interests. Landscape Architect Kathy Howard took issue with a plan to renovate Beach Chalet soccer fields, complete with artificial turf and stadium lighting.

After a few years of fighting these small battles, people like Gustaitis, Wooding, and Howard started to see a pattern.  Park property was being privatized.

THE ENTERPRISE

Some city departments, like the airport and the port, are so-called enterprise agencies. They don’t receive allocations from the city’s general fund, and operate entirely on money they charge users. In the case of the airport, most of the money comes from landing fees paid by airlines. The port charges ships that dock here, and takes in rent from its real-estate holdings.

Other departments, like Recreation and Parks, provide free services, funded by taxpayer money. In theory, the department creates and maintains open spaces for public use. The recreation side offers services like classes and after-school activities, many of which are centered in recreation centers and clubhouses in parks throughout the city. 

These have been staffed in the past by recreation directors, adults who coordinated and supervised play, in many cases becoming beloved community figures.

But some city officials want that mission to change. In a time of tight budgets (and facing significant cuts to its operating funds), Rec-Park has been looking for ways to increase revenue by charging fees for what was once free.

In fact, in a 2010 Rec-Park Commission meeting, interim General Manager Jared Rosenfeld said, “the sooner we become an enterprise agency, the better off we will be.”

In August 2010, the department fired 48 recreation directors.  In their place, Rec-Park hired part-time workers who were paid to put on programs but not to staff neighborhood rec centers. The department also hired six more employees in the Property Management Division, tasked with leasing out and renting parks property.

In 2010, the commission also approved a plan to impose a fee for non-residents and require residents to show ID to enter the Arboretum. The once-free public garden was on its way to becoming a cash cow (operated in part by the private San Francisco Botanical Society).

A fledgling group formed to fight the fees – and its members soon connected People from SF Ocean Edge, the Parks Alliance and SPEAK who were not pleased with a proposal to install artificial turf and floodlights at the Beach Chalet soccer field and people who opposed the leasing of clubhouses.

 Mosgofian, a member of the Labor Council and worker with Graphic Communications International Union Local 4-N, helped bring together many disparate groups who, they realized, have a common goal in halting the privatization of the parks system.

“It started with a number of different people who were involved in a number of different efforts to get the Rec and Park Department to do the right thing running into each other and eventually getting together,” said Mosgofian “People from these groups found themselves listening to each other’s efforts and got together.”

Subhed: The empty clubhouse

One of the turning points was the fight over J.P. Murphy Clubhouse in the Sunset.

 In July 2010, Rec-Park quietly began taking clubhouses, previously free and open to anyone in the neighborhood, and putting them up for lease. Nonprofits, some of them offering expensive programs,  took exclusive control of public facilities.

For Rec-Park, it was more money. For neighborhood residents, it was a sign they were being cut off from the resources their tax dollars built and funded.

“They would put a notice on the clubhouse door for a hearing, they would have four or five concerned mothers show up, and they would lease the facility,” said George Wooding, then-president of the West of Twin Peaks neighborhood group that got involved in opposing the clubhouse privatization.

The J.P. Murphy clubhouse in the inner sunset had benefitted from the 2008 bond. The building was renovated at a cost of $3.8 million. But when the shiny new rec center was finished, Rec-Park tried to put it up for lease.

Wooding helped organize strong opposition to the lease. They had already paid for the clubhouse through taxes and bond money, the opposition figured—why shouldn’t it be kept open to the public, free? 

 “I’d had enough. We felt, this is our park,  they just spent a ton of money. They fired the rec director. When Rec-Park came to rent out the facility, we just said no way,” Said Wooding.

The department gave up, and J.P. Murphy wasn’t leased. But without a lessee, the department simply closed the center. It’s empty and dark – although it’s available for $90 an hour rent.

Other similarly frustrating battles were going on around the city. 

Muir called the opposition “short-sighted.” 

“This opposition is punishing the people who use the facilities across the city, children who need safe parks to play in, seniors, and those who are disabled who need ADA compliance,” said Muir.

But Friends of Ethics, another group opposing the bond, argues that Rec-Park shouldn’t get another cent until the agency cleans up its act. In a paid ballot argument against Prop B, the group brought up the controversial process of leasing out the Stowe Lake Boathouse last year. The move to put Bruce McLellan, longtime operator of the family business that sold snacks and rented paddle boats, on a month-to-month lease before auctioning a new lease to the highest bidder created a serious backlash.

 On top of that, commission officials were accused of bias when they recommended a lobbyist, Alex Tourk, to one of the companies vying for the contract. 

 “It’s unseemly and it clouds public trust,” said No on Prop B proponent Larry Bush,  who publishes Citireport. 

The boathouse isn’t the only much-beloved tradition ended under the current Rec-Park administration’s reign. The Power the Peaceful festival, which brought big name musicians and thousands of attendants, all for free, has been priced out due to dramatic increases in fees. So has the Anarchist Book Festival. 

 Bob Planthold, a disability rights advocate who is also a member of Friends of Ethics, says that there are issues in the ADA compliance plans for the Parks Bond as well. Planthold says that money from the last bond measure in 2008 was misspent in terms of disability access.

 “Trails weren’t graded properly. There was no attention to whether there were tree roots that might be rising above the level of the trail that could trip somebody,” said Planthold. “They didn’t do a good, proper, fair job on making trails accessible.”

 The bond got unanimous support from the Board of Supervisors. That’s because it earmarks money for parks that desperately need it throughout the city. 

 But that doesn’t mean all the supervisors are pleased with the way Rec- is being run, either. In July 2010, Sup.  David Campos and then-Sup.  Ross Mirkarimi tried to pass a Charter Amendment to split the appointments to the commission among the mayor and the supervisors. 

 But they couldn’t get the measure through, and the commission remains entirely composed of mayoral appointees.  

So now the voters have a choice: Give more money to what  many say is a badly managed department moving toward the privatization of public property – or shoot down what almost everyone agrees is badly needed maintenance money. Of course, the critics say, Rec-Park can always change its direction then come back and try again in a year or two – but once public facilities become pay-per-use private operations, they tend to never come back. 

D5, Mirkarimi, and 8 Washington

Zelda Bronstein
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D5, Mirkarimi, and 8 Washington

Everybody knows that the timing of the Board of Supervisors vote on ousting the sheriff for official misconduct is bad for Ross Mirkarimi. We’re talking about a huge, high-profile decision just weeks before some of the key board members are up for re-election, two of them in hotly contested races. For Sups. Eric Mar and Christina Olague, it’s going to particularly difficult: Mar’s in a moderate district, and he’ll be attacked from the more conservative David Lee if he supports Mirkarimi. Olague’s in a progressive district where Mirkarimi was a popular supervisor, so no matter what she does, she’ll take heat.

But I was a little surprised by Randy Shaw’s analysis, which suggests that Olague will be motivated entirely by political spite:

D5 Supervisor Christina Olague once faced a tough decision on Ross, but since Mirkarimi allies have attacked her on a number of issues it would be very unlikely for her to support him.

That’s pretty insulting. Shaw, who has supported her in the past, is saying that Olague won’t make up her own mind based on the actual issue and case in front of her. She was pretty clear when I called her: “I will vote on the merits of this issue,” she said. “If I was motivated to vote based on who had pissed me off I’d have a hard time voting on anything.”

I’ve disagreed with Olague quite a few times, and one could easily argue that she’ll be under immense pressure from the mayor. (“The mayor doesn’t want a lot from Christina, but he does want this,” one insider told me.) But is it impossible for Shaw to imagine that, in one of the toughest matters she will ever have to handle, the supervisor might actually listen to the testimony, consider the merits of the case, and vote to do what she thinks is right?

Meanwhile, Joe Eskenazi at the Weekly has already announced the Guardian’s endorsement in D5 — which is interesting, since we’re barely started interviewing the candidates. Eskenazi calls Julian Davis “the Guardian’s fair-haired boy” (which, speaking of insults, is not a terribly appropriate way to refer to an African American man), indicating that he’s already our candidate.

For the record: We have not made an endorsement in District Five. We plan to endorse a slate of three candidates for the ranked-choice ballot, and we’ll publish that endorsement the last week in September or the first week in October.

 

 

About the Mirkarimi poll

Zelda Bronstein
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About the Mirkarimi poll

It’s no suprise that lawyers for suspended Sheriff Ross Mirkarimi are calling a recent poll biased. The poll, paid for by a group of local women, many of whom have been in the forefront of the efforts to remove Mirkarimi from office, found that 61 percent of people wanted the sheriff ousted. More significant, it broke the results down for the supervisorial districts where there are contested elections; the goal, of course, was to put pressure on the supes to support the mayor’s removal efforts.

But nobody has published the actual questions in the poll — although I got a call from Greg Kamin, a San Francisco resident who was among those contacted by the robo-poll, and he said it was unusual, to say the least.

“In a normal push poll, they ask you your opinion first, then give you information to see if it changes your view,” he told me. “In this one, there was just a barrage of negative information first, before they asked a single question.”

One question went more or less like this: Which factors would most convince you the sheriff should be removed — the fact that he pled guilty to false imprisonment, the fact that the Ethics Commission ruled against him, the fact that he was involved in domestic violence, or the fact that he’s on probation?

“There was no way to answer the question that didn’t say you wanted him removed,” Kamin said.

Given the way the poll was structured, Kamin told me, “it’s surprising Mirkarimi got as much support as he did.”

Worth considering.

Also worth considering: For all the talk about domestic violence and zero tolerance and the need to remove the sheriff, there’s been very little discussion about the impacts on the people in the county jail — who are overwhelmingly African American and Latino. It makes a difference who the sheriff is. Someone who really believes in rehabilitation and wants to treat inmates in a decent, humane way can change lives — and radically improve public safety in a state with a 70 percent recidivism rate.

Again: Just something that ought to be part of the discussion.

 

Good propaganda ain’t cheap. Sorry, no rebates for errors.

Sasha Cuttler
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Good propaganda ain’t cheap. Sorry, no rebates for errors.

UPDATED AND CORRECTED BELOW It wasn’t surprising to read Randy Shaw’s misleading praise of Mayor Ed Lee for appointing Rodrigo Santos to the City College board. Much of Shaw’s salary comes from the city contracts that his Tenderloin Housing Clinic administers, so he has turned his Beyond Chron mouthpiece into the equivalent of Pravda in touting the party line of Lee and his supervisorial apparatchiks.

For that blind loyalty, Shaw has been handsomely rewarded. On July 31, the Board of Supervisors even approved a Lee-proposed balloon payout of $91 million to THC for its contract administering the Mayfair Hotel that was retroactive all the way back to 2009. Can anyone imagine another nonprofit that could dig so deeply into city coffers, for work that has supposedly already been done, who wasn’t giving a little something back to these ambitious politicians who sponsored it?

But apparently Shaw – who used to have some progressive credibility before so blatantly selling the movement out a couple years ago – doesn’t need to even get the facts right in his propaganda posts. When I asked him at yesterday’s Lee/Santos press conference whether and why he supported Santos – a villain in most progressive circles – he argued Santos was needed to help win support for Prop. A, the parcel tax for City College.

Shaw said the measure needed a two-thirds vote to be approved, a claim he also made in today’s piece. That didn’t sound right to me, and the Elections Department confirms that it isn’t: Prop. A needs only a simple majority to pass. [[8/23 UPDATE AND CORRECTION: Ernestine at the Department of Elections told me yesterday Prop. A needed only a simple majority, but she called back today to say she was mistaken and that it does indeed require a two-thirds vote.]] Shaw also claimed a couple weeks ago that the Board of Supervisors would delay the Mirkarimi decision until after the election, which also wasn’t true: the Charter requires the board to act within 30 days of receiving the Ethics Commission recommendations.

I sent Shaw a message asking about whether his erroneous beliefs affected his analysis, and to explain the basis for THC’s $91 million kickback, and he hasn’t responded to the questions, as usual. But when you’re a poverty pimp feeding off of political patronage, you’re probably golden as long as you get the politician praise right. Cha-ching!

 

Full circle

Andrew Lam
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52
Full circle

steve@sfbg.com

When Mayor Ed Lee suspended Sheriff Ross Mirkarimi in March, he publicly took the position that it was an act of official misconduct when Mirkarimi grabbed his wife’s arm during a Dec. 31 argument, subsequently pleaded guilty to false imprisonment, and was placed on probation for three years.

Lee and his allies said that under those conditions, Mirkarimi could no longer effectively function as the city’s top elected law enforcement officer and that his actions clearly violated the City Charter’s ban on "conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers."

The City Attorney’s Office, through deputies Peter Keith and Sherri Kaiser, has maintained that position throughout the investigation and Ethics Commission proceedings over the last five months. On August 16, on a 4-1 vote, the commission agreed and recommend the Board of Supervisors find its former colleague guilty of official misconduct, which would almost certainly result in his removal from office.

But that simple set of facts and interpretations belies the ugly spectacle that Lee and the City Attorney’s Office actually decided to create — at great cost to taxpayers, Mirkarimi’s reputation, and the public’s faith in the proceedings — over the last five months.

Instead of sticking by their initial position, Lee and his attorneys decided to pile on a long list of other official misconduct charges: dissuading witnesses to his crime, impeding a police investigation, abusing his authority in several ways, engaging in a pattern of abuse of women, refusing to cooperate with a city investigation, lying to officers in a scheme to keep a gun, and other charges.

Almost all of those accusations were included in the original written charges that Lee filed on March 21 — before the city had actually begun its investigation to learn whether there was any evidence to support them. Keith and Kaiser continued to make all those accusations right up until the end.

When the Ethics Commission finally deliberated on August 16, going through each of the main factual allegations against Mirkarimi, one by one, it unanimously agreed that there wasn’t enough evidence to support any of those other charges, even using the "preponderance of evidence" standard that is lower than the "beyond reasonable doubt" standard used in criminal cases.

So in the end, the case against Mirkarimi ended at the same place where it began: with the question of whether pleading guilty to a misdemeanor act of domestic violence warrants the removal of an elected official. But the implications and repercussions of what has transpired over these last five months could be felt for many years, in ways that it’s impossible to predict today.

WHAT IS OFFICIAL MISCONDUCT?


With very few legal precedents to guide them, the commissioners spent most of the nine-hour hearing on Aug. 16 wrestling with how to interpret the city’s untested new official misconduct language, how directly the wrongful behavior must relate to the office, and whether broadly interpreting those two issues gives too much power to the mayor.

Underlying that discussion is the question of whether the statute and the city’s interpretation of it will eventually be struck down as unconstitutionally vague by the courts, which Mirkarimi will likely turn to if the board removes him from office. But the commission pointedly refused to enter that debate, with Commissioner Jamienne Studley saying, "I don’t think determining constitutionality is what I signed on for as a commissioner."

Chair Benedict Hur, the sole dissenter in recommending a finding of official misconduct, expressed far more concern about the precedent they were setting than with the fate of Mirkarimi, whose actions he strongly condemned as "clearly wrongful and unlawful."

"There has to be a direct relationship of the behavior to the office held," Hur said. "If we don’t find a nexus, we are opening this provision up to abuse down the road."

Commissioner Paul Renne led the charge in interpreting misconduct in the broadest possible way, arguing it didn’t even have to be related to his official duties. "There’s nothing in that clause that says the misconduct has to relate to the office," Renne said.

But Hur called that a "dangerous precedent," saying he has "grave concerns" about how such a broad interpretation could be applied in the future. "I have a lot of concerns about where you draw the line if you don’t relate it to official duties," he said.

For example, could members of the Board of Supervisors be removed after getting arrested at demonstrations — as has happened many times before in connections with labor and other disputes — or even for using colorful language with constituents or colleagues that might violate a future mayor’s "standard of decency?"

Mirkarimi attorney Shepherd Kopp said there’s a good reason why recall is the preferred means of removing an elected officials accused of wrongdoing, calling the charter "an imperfect document" that can’t cover all circumstances — indeed, it doesn’t allow for the removal of mayors, even those who commit serious crimes — noting that "this is a rarely brought proceeding and it can have the effect of contravening the will of the electorate."

"These proceedings," Kopp said, "are far too susceptible to the vagaries of politics."

THE PILE-ON


Lee’s decision to overcharge Mirkarimi could be a costly one. The City Attorney’s Office won’t release expenses associated with ongoing legal actions like this one, but most indications are that it will run into the millions of dollars, perhaps many millions depending on how Mirkarimi fares in the courts if he is removed and challenges the city’s actions.

According to the City Attorney’s Office, the official misconduct proceedings against former Sup. Ed Jew in 2007 cost the city $381,505 in legal fees, but that was a relatively short and simple proceeding, with just one Ethics Commission hearing and couple of state court appearances before the case was settled.

By contrast, the case against Mirkarimi has already entailed five months of detailed exchanges between the two sides’ attorneys, covering a wide array of legal issues, and months-long investigations of matters only tangentially related to the core charge. The city has paid out money for expert witness. Mayor Lee cast a wide net to catch the fish that he had already hooked before setting out to sea.

Even if the Jew case had played out to completion, it would likely have cost just a fraction of what Mirkarimi’s will, for a simple reason: Mayor Lee acted quickly and brought a broad array of charges before investigating them. Then-Mayor Gavin Newsom investigated whether Jew really lived in the city and then brought just that narrow charge.

The simple residency question was enough to warrant Jew’s removal, and Newsom didn’t even need to get into the far more serious corruption charges related to Jew being caught with $80,000 in marked bills as part of an FBI extortion sting, for which Jew is still serving a five-year term in federal prison.

Lee has refused to justify his decision to pile on the charges and introduce defamatory declarations unsupported by direct evidence, such as the long declaration of key witness Ivory Madison, most of which was stricken from the record after Commissioner Paul Renne called it "clearly hearsay, clearly having the intention of poisoning the well" and said "a first-year lawyer should know that much of it is inadmissible and it should not have been given to us."

Even though Keith apologized to Renne and the commission, Lee and his lawyers continued to defend much of that declaration and use it as the basis for many of their most incredible accusations.

"You received a great deal of evidence, most of it from the mayor and most of it unchallenged," Keith said in his closing statement, glossing over the multitude of challenges and the fact that most evidence doesn’t support the city’s charges.

Mayoral Press Secretary Christine Falvey wouldn’t address a list of Guardian questions about overcharging the case and continuing to rely on discredited evidence. Instead, the Mayor’s Office stands by this Aug. 16 prepared statement: "I am pleased that the members of the Ethics Commission, following a careful review of the evidence, and in the face of a sustained campaign to distract and misdirect them from the facts, agreed with me that Ross Mirkarimi’s actions constitute official misconduct and fall below the ethical conduct we expect of the sheriff."

City Attorney’s Office spokesperson Matt Dorsey said his office also stands by the process: "We respect Ethics Commissioners’ differing opinions about the remaining counts. But nothing about the commission’s conclusions would cause us to pursue these charges of official misconduct differently if we had to do it over again."

But Mirkarimi’s team says it is Lee who has repeatedly sought to distract and misdirect the public, whether through unsubstantiated claims in his charging documents or Lee’s public statements that Mirkarimi "beats his wife" and other comments that blow a single arm-grab out of proportion.

"What the commission has effectively done is agreed with us that’s the only issue," Mirkarimi attorney David Waggoner told reporters after the hearing, noting that he had offered to stipulate to those facts from the beginning and avoid a prosecution that his closing brief deemed "a dog and pony show." Mirkarimi also told reporters that "the piling on of these charges has weighted us down" and complicated his defense. He added, "I leave this process concerned that the will of the voters is being undermined."

THE PRICE OF OVERKILL


Perhaps it was understandable for the city to use over-the-top tactics on Mirkarimi, who has certainly been weakened by proceedings that generated reams of fodder to be used against him in future elections if he survives the board’s removal vote. But the tactic also seems to have hardened the stance of Mirkarimi’s supporters and fed their conviction that this was a politically motivated prosecution and misuse of public resources.

During more than three hours of public testimony on Aug. 16, with each speaker strictly limited to less than two minutes each, speakers overwhelmingly favored Mirkarimi and condemned the city case as overkill.

"Some of the things done in this case, and the levels this has gone to, is outrageous," said Brenda Barros, who works in the city’s public health clinic and said these resources could be better applied to help the "seriously abused women" she works with. Barros called the city’s case "a political witch hunt."

"I think Mayor Lee has overstepped his boundaries and I think you should find that as well," said Pedro Fernandez, a private investigator and former San Francisco Police officer.

David Elliott Lewis, a member of the city’s Mental Health Board, noted that the Sheriff’s Department has no civilian oversight, making the role of an elected sheriff who is progressive and independent of the city’s good-old-boy police culture all the more important. "Those who claim otherwise are really politically motivated," he said.

One issue left unresolved by the Ethics Commission is whether Mirkarimi should be removed even though the case against him was substantially whittled down. In fact, several commissioners indicated during the hearing that they thought the findings and punishment were separate issues.

"Do you agree that it is a two-step process we have to deal with?" Renne asked Keith, referring to the official misconduct finding and whether Lee abused his discretion by removing Mirkarimi.

"There is a determination of, are the consequences appropriate to the wrongful action," Keith replied.

But later, when attorney Scott Emblidge — who is volunteering his legal services to both the Ethics Commission and Board of Supervisors on this case — offered his interpretation that the charter language requires removal of officials found to have committed official misconduct, the commission accepted that and opted not to consider recommending a lesser punishment to the Board of Supervisors.

Mirkarimi’s team objected to the commission’s rewriting of new charges based on its evidentiary findings, and things got so confusing by the end that the commission decided to meet one more time in early September to finalize its recommendation.

So the case probably won’t get to the board until mid-September. Nine votes are required to remove Mirkarimi and the charter requires the board act within 30 days, meaning that final vote will be just a few weeks before the Nov. 6 election, timing that will only increase perceptions that politics will largely determine its outcome.

Eliana steals the show at Thursday’s dueling City Hall rallies

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Eliana steals the show at Thursday’s dueling City Hall rallies

Eliana Lopez once again stole the show as the Ethics Commission Thursday debated the “ethical fate” of her husband Sheriff Ross Mirkarimi inside City Hall while the Stand With Ross forces and their opponents staged back to back rallies on the City Hall steps.

Eliana sat with and supported her husband during the morning at the hearing on the misconduct case and then made an early afternoon dramatic entrance to the Mirkarimi rally. (The commission later Thursday unanimously rejected most of Mayor Ed Lee’s official misconduct charges against the suspended sheriff but voted 4-l to recommend the Board of Supervisors find him guilty of official misconduct for grabbing his wife’s arm on Dec. 31 and pleading guilty to the resulting misdemeanor charge of false imprisonment.  See Steve Jones Guardian blog.)

Eliana was greeted with cheers as the tv cameras and reporters crowded in on her.  

She spoke with ease and authority, greeted many friends, spoke in Spanish to several Spanish language radio and television reporters, and walked easily through the crowd shaking hands and talking with supporters in two languages.

“We don’t want any more hate,” she said. “We want love.” She said the case was
“about democracy” and she said that the community stands behind her husband.

I asked her about her plans.  She said she had finished her movie in Venezuela and was back living with Ross in their home with their young son Theo.   “I have good feelings,” she said.

The two groups worked out an informal modus vivendi.  The Remove Ross group had a permit for using the steps so they went first with their press conference rally with banners saying “We stand with survivors” and “The facts do matter.” Their group was largely from the three organizations leading the charge against Ross, La Casa de las Madres, Domestic Violence Consortium and Futures Without Violence.

The Mirkarimi group initially gathered across Polk Street, waved signs and chanted “Stand With Ross.” The group then got a permit to use the City Hall steps and held its rally after the first rally ended.  Sharon Hewitt, executive director of the Community Leadership project, said that the city owed an “act of apology for the violence” that it had caused to Ross and his family.

The police officer on duty estimated to me that there were 40 or so in the domestic violence group. My count was about 50 or so.  The Stand With Ross group had more people and they were more spirited in their chants and marching.   

Commission narrows Mirkarimi charges to one but recommends removal

Sasha Cuttler
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238

The Ethics Commission today unanimously rejected most of Mayor Ed Lee’s official misconduct charges against suspended Sheriff Ross Mirkarimi – including abuse of power, impeding a police investigation, and dissuading witnesses – but voted 4-1 to recommend the Board of Supervisors find him guilty of official misconduct for grabbing his wife’s arm on Dec. 31 and pleading guilty to the resulting misdemeanor charge of false imprisonment.

The sole dissenting vote, Chair Benedict Hur, said he had “grave concerns” that such as a broad interpretation of what behaviors constitute official misconduct would give mayors a “strong tool” to inappropriately remove their political adversaries (or at least invite charges that they were), as Mirkarimi supporters allege is happening now.

But the rest of the commission adopted a broad interpretation of what city officials and voters intended in 1995 when they overhauled the City Charter and added a new official misconduct clause banning “conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers.”

“I have a lot of concerns about where you draw the line if you don’t relate it to official duties,” Hur said, appealing to his colleagues that, “I think this charter provision was meant to be narrow.”

Commissioner Paul Renne – who in earlier hearings had taken a strong role in excluding prejudicial evidence against Mirkarimi and was thought to be a possible vote in his favor – today led the charge in interpreting misconduct in the broadest possible way, arguing it didn’t even have to be related to his official duties, while the three other votes against Mirkarimi made the case that his conduct and conviction were related to a sheriff’s role overseeing the jail and its domestic violence programs.

“I think the voters would be shocked if we were to say a public official who pleaded guilty to domestic violence has not committed an act of official misconduct,” Renne said.

But Mirkarimi’s attorneys and supporters – who outnumbered those urging his removal (mostly domestic violence advocates) by more than 4-to-1 during the three hours of public testimony taken today – say the shocking thing is for a just-elected official to be unilaterally removed from office by a political adversary for reasons that today’s proceedings showed were tenuous.

“No case has ever been upheld in court to remove an elected official for a low-level misdemeanor,” said Paula Canny, the attorney for Mirkarimi’s wife, Eliana Lopez, who sat next to and supported his husband throughout today’s nine-hour proceedings.

Indeed, the city is wading into uncharted waters and the commission had few court precedents to draw from in making its findings. It’s also possible that the charter provision is unconstitutionally vague, as Mirkarimi’s attorneys have alleged, both here and in court, with an earlier judge opting to wait until after the city’s process plays out before ruling on the question.

But first, it will be up to the Board of Supervisors, where nine votes on the 11-member body are required to remove Mirkarimi. Today’s hearing got complicated at the end – as commissioners wrestled with what it means to essentially throw out the mayor’s charges and adopt their own more narrow accusation, and how to present everything to the board – that it decided to hold one more meeting in early September to adopt a summary and send everything to the board, which will then have 30 days to act.  

“I leave this process concerned that the will of the voters is being undermined,” Mirkarimi told reporters after the hearing. Holding his hand, Lopez said, “I’m shocked to see what happened today, but we are fighters.”

 

For complete coverage and analysis of what happened today, what it means, and what’s next, read next week’s Bay Guardian.

Stand with Ross at a major rally Thursday noon at City Hall

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11

The Sheriff Ross Mirkarimi forces put out a call to action Wednesday to mobilize their supporters for a show of force at a noon rally at City Hall on Thursday.

The rally is scheduled to be across Polk Street from the City Hall entrance because they fear that their opponents will be holding a rally on the City Hall steps with a sound system.

The possibility of dueling rallies comes as the Ethics Commission is set to hear closing arguments on Thursday in a fact-finding hearing in the Mirkarimi removal case.

Mirkarimi’s rally is the latest event in an accelerating grassroots effort by his supporters to put pressure on the Ethics Commission and the Board of Supervisors who will have the ultimate decision on whether Mirkarimi stays or goes as sheriff. 

I particularly like the statement of the National Lawyers Guild on Mirkarimi: http://www.nlgsf.org/news/statement-suspension-sf-sheriff-ross-mirkarimi-and-ethics-commission-proceedings

 

 

 

 

 

Why?

Andrew Lam
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44
Why?

steve@sfbg.com

Just a couple years ago, it seemed like the golden age of marijuana in San Francisco, the birthplace of the movement to legalize medical pot and a national leader in creating an effective regulatory framework to govern an industry that had become a legitimate, respected member of the business community.

More than two dozen patient cooperatives jumped through a variety of bureaucratic hoops to become licensed dispensaries, most of them opening storefront businesses that were often the most attractive, clean, and secure retail outlets on their blocks, sometimes in gritty stretches of SoMa, the Tenderloin, or the Mission.

“Pretty much everyone involved agrees that San Francisco’s system for distributing marijuana to those with a doctor’s recommendation for it is working well: the patients, growers, dispensary operators, doctors, politicians, police, and regulators with the planning and public health departments,” I wrote in “Marijuana goes mainstream” (1/28/10).

Since then, San Francisco’s medical marijuana industry has only become more established and professional, complying with new city regulations (such as changing how edibles are packaged to avoid tempting children), paying taxes and fees — and making very few waves. According to city officials, there have been almost no complaints from anyone about the dispensaries — and in San Francisco, people complain about everything.

But in the last six months, the full force of the federal government has brought the hammer down hard on this budding business sector, forcing the closure of eight brick-and-mortar dispensaries and instilling paranoia and insecurity in those that remain.

In just the past few weeks, two of the city’s oldest and most respected dispensaries –- HopeNet and the Vapor Room -– were forced to close their doors.

There’s been little rhyme or reason to which clubs get those dreaded letters warning operators and landlords to shut it down or be subject to asset forfeiture and prison time — and the officials involved have refused to explain their actions, except with moralistic anti-drug statements or unsupported accusations.

“These are people who played by the rules and paid their taxes, and now they’re being punished for it,” said Assembly member Tom Ammiano, a leader in creating a state regulatory framework to govern the distribution of medical marijuana, which California voters legalized in 1996. “This is pure thuggery. They are ignoring due process out of blind prejudice and ambition.”

Ammiano met with Melinda Haag, the US Attorney for the Northern District of California, who has coordinated the local crackdown from her 11th floor office in the Federal Building near City Hall, shortly after she announced her intentions to go after medical marijuana. He said she was like a throwback to a less enlightened era.

“In talking to Haag, not only is she a bit of a bully, but she’s totally uneducated about the issue,” Ammiano told us. When she told him that her office has received many complaints about the dispensaries, he asked to see them -– even making a formal Freedom of Information Act document request –- but she has yet to produce them. “Her duplicity is very moralistic, it’s like going back 100 years.”

Neither Haag nor anyone from the White House or Justice Department would grant an interview to the Guardian to discuss the reasons for and implications of the crackdown, or to answer the list of written questions her office asked us to submit. Instead, Haag gave the Guardian this statement and refused to respond to our follow-up questions:

“Although all marijuana stores are illegal under federal law, I decided to use our limited resources to address those that are in close proximity to schools, parks and playgrounds and operations so large that they constitute marijuana superstores. I hope that those who believe marijuana stores should be left to operate without restriction can step back for a moment and understand that not everyone shares their point of view, and that my office has received many phone calls, letters and emails from people who are deeply troubled by the tremendous growth of the marijuana industry in California and its influence on their communities.”

But in San Francisco, where more than 80 percent of residents consistently support medical marijuana in polls and at the ballot box, most people don’t share Haag’s point of view. And city officials contest many of her claims, from saying the dispensaries are “left to operate without restriction” to her implication that they promote crime or endanger children to the haphazard way she has targeted dispensaries to the characterization that many people are “deeply troubled by the tremendous growth of the marijuana industry.”

In fact, to talk to city officials, virtually nothing Haag says is true.

“We’re not getting nuisance complaints [about the dispensaries],” Dr. Rajiv Bhatia, the city’s medical director who oversees regulation of the dispensaries by the Department of Public Health, told the Guardian. “We’ve had very few complaints over the years and good cooperation with the storefront part of the regulations.”

Almost across the board, city officials and club operators praise one another and the cooperative relationship they’ve established over the last four years. Some of San Francisco’s biggest dispensaries have somehow avoided Haag’s wrath, but their once-open operators are now afraid to speak publicly, warily checking the mailbox each day. A thriving industry eager to pay its taxes and submit to regulation is being driven back underground, with all the uncertainty and hazards that creates.

“The question everyone is asking: Why here, why now, why these businesses? Nobody knows the answer,” Bhatia said. “We’re left to speculate and guess about motives.”

MULTI-AGENCY ATTACK

The federal crackdown has been stunning in both its speed and breadth, with various federal agencies coordinating their attacks. The IRS is auditing the biggest clubs and denying write-offs for routine business expenses, the DEA is threatening asset forfeiture efforts, and Haag and the DOJ are threatening prison time and court injunctions.

Underlying all of that is President Barack Obama, who pledged not to use federal resources to go after those in compliance with state law in the 17 states where medical marijuana is legal. Then, last year, Attorney General Eric Holder suddenly announced a new policy: “It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal.”

When we sought an explanation and clarification from the White House Communications Office about why well-established medical marijuana collectives carefully operating under California law were suddenly deemed “drug traffickers” that wouldn’t be tolerated, they refused to answer and referred us to a statement Obama made to Rolling Stone magazine.

“What I specifically said was that we were not going to prioritize prosecutions of persons who are using medical marijuana. I never made a commitment that somehow we were going to give carte blanche to large-scale producers and operators of marijuana -— and the reason is, because it’s against federal law. I can’t nullify congressional law,” Obama told the magazine.

That simplistic explanation – which conveniently ignores how people are supposed to get this medicine – has infuriated local growers and patients. It’s particularly galling for those who supported Obama and took him at his word in the last election, and who don’t understand why he is suddenly escalating the federal war on drugs, ignoring local laws and values, and re-criminalizing their communities.

FUNERAL PROCESSION

Hundreds of medical marijuana supporters gathered on Aug. 1 for a New Orleans-style funeral procession at the Lower Haight intersection near where Vapor Room had operated -– without incident and with praise as a model business from three successive district supervisors –- from 2004 until the previous day.

The mood was festive and defiant on that sunny afternoon, where advocates from both sides of the bay gathered to express solidarity with the closed clubs and resolve to battle through the recent setbacks.

“I’m feeling the fight,” Steve DeAngelo, star of the reality television show Weed Wars and head of Oakland’s Harborside Health Center, which received Haag’s shut-down-or-else letter last month, told the Guardian. “I don’t think we can allow taking a few hits to break our spirit….We started this struggle to win it and we’re not going to stop until we do.”

Local politicians and business leaders also came to offer their support.

“As president of the Lower Haight Merchants Association, I’m upset that Vapor Room had to shut down,” Thea Selby, who is also running for the District 5 supervisorial seat, told us. “The Vapor Room did a lot of good for this neighborhood and was a great business.”

Marchers, most clad in black, carried “Cannabis is Medicine: Let States Regulate” and other signs -– as well as a makeshift coffin and massive puppet depicting a scowling Haag -– and danced down the middle of the street as Brass Mafia horns belted out lively jazz tunes. By the time the procession reached Haag’s office at the Federal Building, a chill fog had darkened the skies and the mood.

DeAngelo took the bullhorn first and called out Obama directly: “Either you were lying, sir, or your employees are out of step with your policies.” Steph Sherer, executive director of the DC-based Americans for Safe Access, told the crowd, “We need to tell Obama to lose Haag or lose California.”

Ammiano and the other mostly Democratic Party politicians who spoke tried to avoid putting Obama directly into the crosshairs of the angry activists, although he did say those executing this crackdown “are harming Obama’s chances of winning.” He also urged activists to put the pressure on politicians in Sacramento and Washington DC: “We need to be a voice in reshaping what’s happened in these last few months.”

Ammiano said the crackdown “empowers the cartels and the people who use violence,” contrasting that with San Francisco’s civilized approach to regulating marijuana.

“We in San Francisco have been a model for how to regulate this industry and we have been successful. We are not going to let the federal government interfere with our rights in this city,” Sup. David Campos told the crowd.

Cathy Smith, the founder of HopeNet, who was still reeling from watching her club gutted and shuttered the day before, also sounded an angry and defiant tone, urging supporters to make their voices heard by Haag and others.

“Everybody that’s here needs to go up to this evil woman’s office tomorrow and tell them what we think,” Smith said.

The general feeling was that if the feds can target model clubs like HopeNet and Vapor Room –- which had deep community roots and generous compassionate care programs for low-income patients -– then all clubs are in danger.

“I’m very upset that we’re losing two great medical marijuana dispensaries where patients could medicate on site,” said David Goldman, a local ASA activist and member of the city’s Medical Cannabis Task Force, noting how important that is for patients who live in apartments that ban smoking.

HopeNet and Vapor Room were some of the only dispensaries in town where smoking was allowed on site, because they were more than 1,000 feet from schools, playgrounds, or day care facilities, the city’s standard. Bhatia said that’s a very strict standard in a city as dense as San Francisco, which is why only four clubs ever met it.

Yet the feds saw things differently, ostensibly targeting HopeNet because a small private school opened two blocks away last year, and the Vapor Room because the feds didn’t use the city’s standard of being more than 1,000 feet from the playground at Duboce Park, instead deciding the dispensary was a community menace because it was a little under 1,000 feet from that dog-friendly park’s nearest patch of grass.

LAST DAYS

Vapor Room founder Martin Olive was a bundle of complicated emotions on the club’s last day in business (it will still operates as delivery-only, just like HopeNet, Medithrive, and a few other shuttered clubs have done). Initially, he didn’t want to talk to us: “I’m trying to keep a lower profile because it’s scary out there now.”

But he slowly opened up and tried to describe the feeling of watching his proudest accomplishment so rapidly undone by the one-two punch of a letter from the merchant services company cutting off credit card access (just like every dispensary in the city, returning pot sales to a cash-only status) followed days later by Haag’s shut-down letter.

“It’s complicated emotions that I’m feeling -– let down, confused. At the end of the day, I don’t understand why this is happening,” Olive said. “It’s a community tragedy, it really is.”

Vapor Room was a welcoming gathering place for its members and a supporter of a variety of community events and causes.

“I’ve always treated this as if it were just a nice coffee house. I’m not an outlaw,” Olive said. “I almost forgot I was breaking federal law. It was so normal, so legitimate.”

In fact, some club owners say their establishments helped clean up rough streets. “We took care of the entire block. Before us, it was all dealers, so there’s a safety issue,” HopeNet’s Smith told me as the once-welcoming club on 9th Street near Howard was reduced to bare walls.

Patients were also feeling the pain, including a 48-year-old ex-con who said he was paroled two years ago after serving 25 years in prison for attempted murder. “I have anger issues, big time. The only thing that keeps me calm and quiet and not blowing up is medical marijuana,” he told us, seething, before praising HopeNet’s “homelike environment” and supportive community. “It’s important to sit and relax in an environment that is comfortable and safe. All this is doing is pushing us into the streets.”

DRIVEN UNDERGROUND

Before going through his latest official misconduct battles and fighting to return to his job as the elected sheriff, Ross Mirkarimi was the District 5 supervisor who sponsored the creation of the city’s medical marijuana regulatory system, the product of a long and arduous legislative process.

“We developed the system out of stark necessity because neither local government nor state government gave a roadmap to the dispensaries,” Mirkarimi said. “Prop. 215 legalized medical marijuana, but there were no rules around it.”

After an intensely collaborative process that lasted more than a year, the city in 2005 adopted a process for licensing dispensaries that balanced the needs of this nascent industry with concerns by police, patients, disability rights activists, neighborhood groups, and health officials. Mirkarimi said that maybe it’s time for city officials to consider an idea he floated a few years ago of having the city itself directly distribute medical marijuana through General Hospital.

“I still think that’s a good idea, particularly if the feds are going to force medical marijuana dispensaries back into the dark ages.” For all his praise of the city’s dispensaries, Dr. Bhatia will admit that the industry still needed better oversight -– dealing with issues such as standards for growing and transporting cannabis, fiscal transparency, and potency and dosage standards –- but the federal crackdown has scuttled his efforts to expand the city’s regulatory system.

“This DEA action stops us from making progress on the regulation of clubs that we need to make,” Bhatia said. “There are lots of issues, but we had just finished getting the clubs into their housing.” Now the industry is being driven back underground.

Ironically, Haag and other federal officials have accused dispensary operators of profiteering, which they’ll certainly be more free to do now that local officials have lost their leverage to begin regulating the finances of the supposedly nonprofit patient collectives that officially operate each dispensary.

“That was one of the areas that we never developed the tools or capacity to look at,” said Bhatia, who proposed more transparent record-keeping by dispensaries last year, only to have the operators express concern about how the feds might use that information, which turned out to be an understandable fear.

Olague faces her challengers during first D5 debate

Sasha Cuttler
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Olague faces her challengers during first D5 debate

Tonight’s inaugural District 5 supervisorial debate will be a key test for Sup. Christina Olague – who has fallen from favor with many progressives after a series of bad votes and prickly or evasive interactions with one-time allies – and a test for the rival candidates who are seeking to become the main progressive champion in one of the city’s most leftist districts.

The elected incumbents on the Board of Supervisors have ended up with surprisingly easy paths to reelection [8/9 UPDATE: with the exception of Eric Mar in D1], leaving D5 – as well as conservative District 7, where FX Crowley, Norman Yee, and Michael Garcia are part of a competitive field seeking to replace termed out Sup. Sean Elsbernd – as the race to watch this year.

Olague has been trying to execute a tough balancing act between the progressive community that she’s long identified with and the moderates she began courting last year with her early support for Mayor Ed Lee, who returned the favor and appointed her to serve the final year of Ross Mirkarimi’s D5 term. But by most accounts, she hasn’t executed the feat well, usually siding with Lee on key votes, but doing so in a waffling way that has frustrated both sides.

Progressive candidates such as Julian Davis and John Rizzo will have plenty of fodder with which to attack Olague as a turncoat, including her votes on the 8 Washington project and Michael Antonini, her strange antics on repealing ranked-choice voting, and her close ties to power brokers such as Rose Pak, who hosted a fundraiser that provided more than half of the $81,333 Olague has raised this year, much of it from developers and other interests outside of D5.

Matt Gonzalez – the former D5 supervisor, board president (from where he appointed Olague to the Planning Commission), and mayoral candidate – was so frustrated with Olague that he withdrew his endorsement of her last month, a decision that her other progressive endorsers are also said to be mulling.

With Mirkarimi tarnished by his ongoing official misconduct probe, the endorsement of Gonzalez could be the most significant in this race, and he told us that he plans to make a decision by Friday, the deadline for submission of ballot statements and a point at which we may hear about other changed or dual endorsements from prominent progressives. Other key nods in the race so far have been Aaron Peskin endorsing Davis and Tom Ammiano endorsing Rizzo, two candidates each vying to become the favorite of the left, with Thea Selby, Hope Johnson, and Andrew Resignato also courting support from the left.

Yet so far, the strongest challenge of Olague seems to be coming from her right, with moderate London Breed leading the fundraising battle with $85,461 as of late June 30, including the maximum $500 donation from venture capitalist Ron Conway – the main fundraiser behind Lee’s election last year – which may be a sign that Olague’s support among moderates is also soft.

Olague may be trying to get back in good with the progressives, last week introducing pro-tenant legislation sought by the San Francisco Tenants Union. But impressions have formed and the pressure is now on, and so far Olague – who didn’t answer our calls seeking comment, another troubling trend – hasn’t performed well in public appearances, mangling organizations’ names and generally not winning over her audiences.

Will Olague step up now that the campaign in entering its public phase? Will another candidate catch fire with progressives? Find out tonight from 6-7:30pm at the Park Branch Library, 1833 Page Street. It’s sponsored by the District 5 Democratic Club, the D5 Neighborhood Action Committee and the Wigg Party.

Or if you miss it, catch the next one on Tuesday, sponsored by the Harvey Milk Democratic Club, starting at 7pm in the Eric Quezada Center, 518 Valencia Street.

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