City Attorney Dennis Herrera

Ed Jew throws a one-two punch at the PUC–then flies to China

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Guardian photo of Ed Jew by Charles Russo
By Sarah Phelan
Before leaving the country at 1am this morning for the home of his ancestors, beleagured Supervisor Ed Jew managed to find time–in between luggage packing and driving to the airport–to dash off a letter to City Attorney Dennis Herrera, requesting an inquiry into “the apparent willful disclosure of confidential personal information by an employee or employees of the Public Utilities Commission.”

Wow. We knew that Jew wasn’t a big fan of the PUC, as witnessed by his ultimately unsuccessful 2005 battle against sewer, water and garbage hikes. But who knew that the supervisor, who is being investigated by the FBI for demanding money from a tapioca bubble drink shop chain in exchange for mucho cash would end up accusing the SFPUC of releasing cherry picked information to the running dogs of the press to make him look bad. Hot diggitty!

Who has the best (City Attorney) jeans butt?

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By Sarah Phelan

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In his time, City Attorney Dennis Herrera has been accused of paying too much attention to dress codes, cuff links and time schedules. But on Friday, members of the AIDS/LifeCycle Riders team in his office, along with anyone who has contributed to their 545-mile Trek to Los Angeles fundraising efforts will be allowed to wear jeans. Or, to quote Herrara’s legalese, they will be given “a first-ever, one-day-only ‘dress code dispensation'”.
The blue jeans butt off begins with a 10:00 a.m. photo op on the City Hall steps to celebrate the ten riders who are representing Herrera’s the office in the 545-mile ride from San Francisco to Los Angeles, June 3-9, and the idea is to raise money and awareness for the cause, but you know you’re wondering, er, what kind of jeans Chief Trial Deputy Joanne Hoeper, and her husband, Steve Tomich, ; Deputy City Attorneys Kimberly Bliss, Ronald Flynn (and his partner, Neal Schwartz), Andrew Gschwind, John Kennedy, Kathryn Luhe and Kristine Poplawski; and Investigator Anne Taupier will be wearing. And, of course, who has the best jeans butt. Or is it illegal to say things like that about city attorneys?

Bringing CCA to life

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EDITORIAL Community Choice Aggregation, a new system of developing and selling electric power, has the potential to put San Francisco on the cutting edge of renewable energy nationwide. It could offer lower rates to consumers. It could be an important first step on the road to a full public power system.

When the notion first came up a few years ago, everyone — from Mayor Gavin Newsom to the supervisors to the San Francisco Public Utilities Commission to Pacific Gas and Electric Co. — claimed to be supportive. Now Supervisors Ross Mirkarimi and Tom Ammiano have put forward a plan that would ensure that half the city’s electricity come from solar, wind, and increased efficiency (along with the power we currently get from the dam at Hetch Hetchy). The plan would put San Francisco in the business of developing, promoting, and using solar energy on a huge scale. And suddenly, PG&E is spending millions on ad campaigns and has launched a quiet letter-writing effort to sabotage CCA — and the mayor is nowhere to be found.

It’s no coincidence that the giant private utility’s ads began appearing all over the city, including on the front page of the San Francisco Chronicle, in the same month that Ammiano and Mirkarimi were preparing to introduce their CCA bill. The company is trying to lay the groundwork to counter the city’s arguments that public power, or CCA, is an environmentally sound alternative to PG&E. As Amanda Witherell reported ("Green Isn’t PG&E," 4/18/07), the whole image of PG&E as a green company is a lie: its current power profile is 44 percent fossil fuels and 24 percent nuclear — which means two-thirds of the electricity the company sells is creating either greenhouse gases or nuclear waste.

The CCA plan, on the other hand, calls for 360 megawatts of fully renewable energy in San Francisco. The way the system would work, the city would use money that voters have already approved to develop solar generators and would contract with electricity providers that offer renewable energy. The city would buy the power in bulk, at comparatively low rates, then resell it to residents and businesses. And since the city won’t be making a profit, the cost to consumers will be less than what they currently pay PG&E.

It sounds simple, but the actual implementation is going to be a bit tricky — and will require constant monitoring. That’s why Ammiano and Mirkarimi want to create a new panel, made of several supervisors and representatives from the Mayor’s Office and the SFPUC, to manage the transition. It makes perfect sense: the supervisors need to play a role in the new agency and ought to sign off on any contract. If they don’t, the whole thing could be underfunded, delayed, and packed off to a bureaucratic back room.

But Newsom doesn’t want to give up control, and City Attorney Dennis Herrera hasn’t signed off on the deal. Herrera no doubt has legal arguments against creating a joint control agency, but we can’t believe there’s no legal way to pull this off. Herrera needs to help the board come up with a creative solution.

Meanwhile, Newsom needs to stop ducking this issue. He seems to have plenty of time to attend PG&E’s faux-green media events — but even after CCA supporters rescheduled a press conference twice at the request of Newsom’s office and set it for a time the mayor was available, he didn’t show up.

CCA is a key part of the city’s energy future. The supervisors should pass the plan, including an oversight panel, and the mayor should not only sign it but actively push for rapid implementation. If not, his kowtowing to PG&E should be a central issue for a challenger in the fall campaign. *

PS State law bars PG&E from actively campaigning against aggregation, yet there are signs that the utility is doing just that. Herrera and District Attorney Kamala Harris should immediately open an investigation.

The weakly sunblock

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By Tim Redmond

Yeah, so the SF Weekly is taking a swipe at Kimo Crossman (and, naturally, at us) this week. Will Harper’s item isn’t terribly insightful or funny, and just plays into the Phoenix-based paper’s general distaste for unconventional activists.

But Harper (and a lof ot the others who think it’s fun and easy to whack away at the likes of Crossman and his over-the-top battles for open government) forget where all of this came from. Kimo Crossman got obsessed with government secrecy because he had such a bad experience trying to get public records. He wanted to find out about the Newsom wi-fi deal (which, true to form, the Weekly also loves). And he kept running into brick walls.

I understand. I find the same thing at City Hall, all the time. Under City Attorney Dennis Herrera (and his excellent and principled press aide, Matt Dorsey), it’s gotten a lot better, but overall, most city departments still make it far too difficult for the average citizen to get basic information about what’s going on.

If anyone is to blame for Crossman’s somewhat unwieldy campaign, it’s Mayor Newsom, who insisted that Google and Earthlink had the right to keep their wi-fi proposals mostly secret.

There has always been an easy solution to people like Crossman: Just give them the damn records. Nothing bad will happen. Really.

PS: Someday soon, when metadata is regularly released as part of public-records requests, Will Harper or someone else at the Weekly will use that info to write a really good story about City Hall. You suppose they’ll thank that crazy Kimo Crossman?

A half-century of lies

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View pictures of Leola King’s legendary Blue Mirror club here.

Leola King has lived your life, the lives of three friends and then some.

She’s traveled to Africa with the legendary entertainer, Josephine Baker. She’s featured jazz great Louis Armstrong at a popular Fillmore nightclub she helmed in the 1950s called the Blue Mirror, where she also once convinced a roomful of patrons to drink sweet champagne from the heel of her shoe.

She’s played host to the crusading television journalist Edward R. Murrow.

She’s even had a fling with championship boxer Joe Louis. From the ring at Madison Square Garden, he glanced toward her front-row seat, which she’d secured by chance during her first trip to New York, and had his lackeys retrieve her for a date afterward. Their rendezvous appeared as a gossip item in an Ohio paper and remains in its archives today.

Most of all, Leola King has come as close as anyone possibly can to experiencing bureaucratic hell on earth. For half a century, she’s been fighting with the San Francisco Redevelopment Agency, which has taken four pieces of her property, wiped out a restaurant and two nightclubs she owned, and left her with a string of broken promises.

Her story is evidence that the ugly local chapter of Western Addition redevelopment history still isn’t over – and it’s a demonstration of why so many African Americans in this town will never trust the Redevelopment Agency.

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Beginning in the 1940s, King successfully operated a series of restaurants and nightclubs in the city, remarkable enough in an era that imposed a double-paned glass ceiling on black, female entrepreneurs.

“Back when I first moved onto Fillmore, it was very popular,” King told the Guardian. “Market Street didn’t have shit. They didn’t have traffic. They didn’t have nothing on Market Street.”

During the height of King’s accomplishments, the Redevelopment Agency infamously launched an ambitious project to clear out “blight” in the neighborhood. It was part of a nationwide urban-renewal trend, and while the project here still won’t be finished until 2009, it’s widely regarded as one of America’s worst urban-planning disasters.

In theory, Western Addition residents who were forced to give up their homes or businesses were given a “certificate of preference,” a promise that when the sometimes decaying buildings were turned to kindling and new ones built, the former occupants could return.

In practice, it didn’t work out that way. An estimated 5,500 certificates were issued to families and business owners shortly before the second phase of Western Addition redevelopment began in 1964. Some 5,000 families were dislodged and many of them fled to other sectors of the city (including Bayview-Hunter’s Point, which is today slated for its own redevelopment), or outside of the Bay Area completely.

Only a fraction of the certificates have benefited anyone. The agency has lost contact information for more than half of the holders, and redevelopment commissioners now openly admit the program is a joke.

“If we’re going to boast about being this diverse community in San Francisco, and we’re going to allow our African American population to become extinct, then how can we show our faces in government if we’re not really doing anything about it?” asked London Breed, a redevelopment commissioner appointed by Gavin Newsom in 2005. “And not just putting black people in low-income housing. There [are] a lot of middle-class African Americans all across America, specifically in the East Bay and in other places. Why do they choose to live in the East Bay over San Francisco?”

A renewed interest in the certificates by City Hall led to hearings this month, and District 5 Sup. Ross Mirkarimi has planned another for April.

King obtained two certificates, and attempts to later redeem them both devolved into costly legal wrangling with the agency that lasted more than two decades. She has never regained what she lost.

Leola King’s story is about more than certificates of preference. It’s a story about the troubling legacy of urban renewal.

King welcomes guests into her home on Eddy Street near Fillmore with ease. The living room in what is little more than a two-bedroom converted garage apartment swells unimaginably with antiques – three stuffed chairs with vinyl slips, crystal chandeliers, an ornate dining-room table, lamps, a fur throw.

She insists that she’s just 39 years old, but public records put her closer to 84.

When the Guardian first visited with her in person, she was dressed in black cotton leisure attire. Two chestnut braids cascaded from a gray Kangol-style cap, which she smoothed with her hands as they hugged a pair of light-skinned cherub cheeks.

King made her way west after spending her earliest years behind the barbed wire of a Cherokee reservation in Haskell, Ok. Her mother died when King was young, and her restless father had meandered off to Los Angeles. Her grandparents oversaw her adolescence before she trailed after her father to California, where he was establishing a chain of barbecue restaurants. She married a man at just 14, and a year later, she was a mother. Tony Tyler, her son, is a San Francisco tour guide today and remains a close confidant and business partner.

It was 1946 when she first landed in San Francisco and eventually started her own barbecue pit at 1601 Geary St., near Buchanan, historic building inspection records show. She called it Oklahoma King’s, and hungry San Franciscans were lured to the smell of exotic buffalo, deer and quail meats.

“That end of Fillmore was very popular all the way down until you got almost to Pacific [Avenue],” she said. “Heavily populated. There was at one time in that area of Fillmore over 100 bars alone. Lots of hamburger places. That’s where I had the barbecue pit.”

By 1949, however, Congress had made urban renewal federal law with the goal of leveling slums and deleting general “blight,” still the most popular and awkwardly defined threshold for determining where the government can clear homes and businesses using eminent domain.

The first redevelopment zone in the Western Addition, known as A-1, included Oklahoma King’s. She was paid approximately $25,000 for the property, but offered no relocation assistance or other compensation for the revenue she lost as a result of ceasing her day-to-day business.

Forging ahead, she opened in 1953 what became a hub of jazz and blues entertainment in the Fillmore, the Blue Mirror, at 935 Fillmore Street. The place was decorated with brass Greek figurines on the walls, a circular bar and velvet festoons. King spent a year hopping onto buses full of tourists and begging the driver to drop them by her nightclub for a drink. Before long, her brassy personality had attracted world-class performers, each of them adding electricity to the club’s reputation.

“She was the type of woman who knew how to handle people,” a Blue Mirror regular later said in the 2006 collection of Fillmore jazz-era photography, Harlem of the West. “She could talk to the pimps and hustlers. She didn’t play around, and they knew how to conduct themselves in her club.”

A musician who formerly worked there told the Guardian the Blue Mirror was one of the few places on Fillmore that actually provided live entertainment at that time. Bobbie Webb backed up B.B. King, Little Willie John, T-Bone Walker and others as a young saxophonist at the Blue Mirror with his band the Rhythm Rockers. He said the other establishments nearby on Fillmore were mostly bars except for headlining auditoriums where mainstream acts like James Brown and the Temptations performed. Smaller venues abounded up the street on Divisadero, he said, save mostly for King’s Blue Mirror and the Booker T. Washington Hotel.

“[King] didn’t only have a personality” said Webb, who now airs a show Tuesdays on 89.5 KPOO, “she was a beautiful lady. Personality just spoke for itself. All she had to do was stand there.”

But like virtually everyone in the neighborhood at that time, King rented the place where the Blue Mirror operated. Redevelopment again reached her business in the early 1960s. State booze enforcers, she says, claimed to have witnessed a bartender serving alcohol to a minor and her liquor license was taken away. When the Redevelopment Agency showed up shortly thereafter to sweep the block away, she was ejected without compensation because she wasn’t at that time technically in business.

Two more commercial and residential properties she owned on Post and Webster streets respectively were also eventually taken under redevelopment.

She pressed on, encouraged by Jewish business owners in the area she’d befriended, including liquor wholesaler Max Sobel and Fairmont Hotel operator Benjamin Swig.

“Whenever I’d lose something, they’d say, ‘Keep on moving. Don’t stop, because you’ll lose your customers. When you open back up, they won’t know who you are.’ They’re the ones who told me, ‘Go get another spot.'”

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By the time King began work on her third business in the Fillmore, urban renewal projects had wreaked havoc on minority communities across the nation, including neighborhoods in west-side Boston, downtown Atlanta, the celebrated 18th & Vine District of Kansas City and elsewhere.

King opened the Bird Cage Tavern at 1505 Fillmore St. in 1964 near O’Farrell complete with a jukebox, 30-foot mahogany bar, a piano and a gilded birdcage. Then-police chief Thomas J. Cahill tried to block her liquor-license renewal by complaining to the state about “winos” and “prostitutes” in the neighborhood, records show, but regulators dismissed the claims.

“We had viable businesses all around us,” King said. “I had one fellow I worked with a lot named Willie Jones. He was a blues singer. The interesting thing was, I had music in the daytime at the Bird Cage. I specialized in afternoon jazz.”

Despite a triumphant resettlement, nonetheless, the redevelopment agency arrived yet again and bought her building during the expansion of it’s A-2 redevelopment phase and served as landlord for the Bird Cage, a barber shop and a liquor store as it waited for another two years deciding what to do with the building.

On the agency’s watch, a fire broke out next door to the Bird Cage that led to water damage in her space. Federal Housing and Urban Development records show that no insurance claim was ever filed by the Redevelopment Agency. King says the agency removed some of the bar’s contents, mostly kitchen supplies, and made only stopgap repairs to the building anticipating that she would later be ousted anyway. The items they took, she says, were never returned.

The agency then evicted all of the building’s tenants in 1974. This time, King stood fast and had to be forced out by the sheriff. The agency promised relocation assistance, but those empty assurances became her biggest headache yet. In fact, she would spend the next 25 years quarreling with the agency over relocation terms.

King and the agency searched fruitlessly until 1977 for a suitable replacement building before King purchased her own out of desperation at 1081 Post St. She was then forced to begin another endurance test of working to actually extract money from the agency owed to her for properly outfitting the new building.

Meanwhile, the Bird Cage’s leftover furnishings – from oil paintings, rugs and curtains to an ice maker, wood shelving and an antique porcelain lamp – were destroyed when the agency amazingly chose to store them on an outdoor lot off Third Street during her move, a fact later confirmed by an agency employee in an affidavit.

“They moved it all out,” King said, “all these antiques and stuff, into this field where the weather ate it up.”

The agency’s initial response was to determine how it could best avoid legal liability. Redevelopment officials finally offered her about $100,000, which she needed desperately to keep things moving with the Bird Cage’s new location, but King insists today the materials were worth closer to $1 million.

As she was fighting to reopen her bar business, she attempted to redeem an earlier certificate of preference given to her when she’d lost a residential property on Webster Street to redevelopment. In 1983, she bought a condemned, 12-unit apartment building on Eddy Street hoping to rehabilitate it using a federally backed loan.

The deal only led to more trouble. The agency paid for its own roving security to patrol Western Addition properties it had purchased, and before 1431 Eddy St. was ever officially conveyed to King (as well as two other neighboring developers), thieves gutted the building of windows, doors, plumbing, light fixtures and other hardware. (Two buildings belonging to neighboring developers were also hit, and the agency addressed their losses the same way.)

Almost immediately, the agency told her she’d purchased the building “as is” and that they weren’t responsible for the break-in. But according to an internal 1983 memo marked “confidential,” later unearthed when friends of King submitted a records request to the agency, staffers clearly were concerned about the legal implications of offering one building for sale “as is” and actually providing another one on the date of delivery that had been thoroughly burglarized.

The memo shows that the possibility of a lawsuit was of greater concern to the agency than any obligation to compensate King for the lost hardware, regardless of whether proper security was the agency’s responsibility. Records show they did discuss a settlement of little more than $2,000, but King considered the stolen goods to be worth thousands of dollars more.

She managed to eventually finish the rehabilitation of her Eddy Street property after several years of work, and while she lives there today, time and angst took their toll. Each step of the transition to what she hoped would someday become her new bar, Goldie’s on Post Street, involved a seemingly endless round of yet more negotiations, letters, legal threats and bureaucratic backbiting before the agency would lift a finger and allocate money for contractors, necessary seismic upgrades, architects and equipment.

In 1997, then-Rep. Ron Dellums (now Oakland mayor) wrote a letter to top local HUD official Art Agnos (later a San Francisco mayor) on King’s behalf.

“On August 26, Ms. King met with a member of my staff and detailed issues surrounding a 25-year dispute she has attempted to resolve with HUD and the San Francisco Redevelopment Agency,” Dellums wrote. “Your expeditious attention to this matter is [a] request, as Ms. King is elderly and experiencing health problems. The resolution to this issue would allow her to live the remainder of her life with some piece of mind.”

It was too late. The federally backed loans she’d received from HUD to rehab her Eddy Street property, from which the Redevelopment Agency strictly enforced repayment, fell into default. Loans leveraged against her other remaining properties began to slip, too, all while she fought with the forces of redevelopment to recreate what she had once proudly possessed.

King’s story may seem like an unfathomable streak of bad luck, but there’s a paper trail for all of it. And her battle, laid out in hundreds of pages of documents saved by King over several decades and reviewed by the Guardian, was ultimately unsuccessful..

By 1997, King was submerged in bankruptcy proceedings and would lose pretty much everything that she owned, including an Edwardian landmark home on Scott Street near Alamo Square where she’d lived for years (partially burned in a 1986 fire, believe it or not) and a residential building on Sutter Street.

Goldie’s was to be her final resting place, a roost from which she hoped to feature cabaret dancing, fresh crab at happy hour, a refined art deco aesthetic and live music performances. She lost that, too. Today, it’s Diva’s just off Polk Street.

Urban renewal won.

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Hopeful press accounts lately foretell a jazz revival in the Fillmore District fueled by enterprising developers deft at financing lucrative redevelopment projects through tax incentives and low-interest loans half a century after the promise of “renewal,” now described euphemistically as “historic preservation.”

But with such a sordid history behind them, it’s no wonder residents of Bayview-Hunter’s Point, many of whom escaped Western Addition “renewal” in the first place, are leery of a pending years-long plan to redevelop nearly 1,500 acres in the southeast neighborhoods.

Bayview newspaper publisher Willie Ratcliff led a petition drive last year in an effort to put the plan before voters. Over 20,000 petition signatures were certified by elections officials, but City Attorney Dennis Herrera ruled the petitions were technically invalid because circulators hadn’t presented the full text of the redevelopment plan to signers. Redevelopment foes have since sued to have Herrera’s decision tossed.

“The misuse by these people is just unbelievable,” King said. “They were fighting me every inch.”

Thanks to Susan Bryan for joining the Guardian in reviewing hundreds of pages of public and personal records preserved in Leola King’s estate. Bryan is currently working with Monkey Paw Productions on a documentary about King’s life

The sunshine posse

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› amanda@sfbg.com

On Saturday mornings, with roughshod regularity, a handful of San Franciscans gather at the Sacred Grounds Cafe on Hayes Street to swap strategies and catch up on their political triumphs and setbacks. They don’t look like a powerful bunch, and they aren’t household names, but they’re changing the way the city handles public records, meetings, and information.

All of these folks started with one simple request for what ought to have been public information. All of them ran into a stone wall. They eventually found one another at hearings in front of the Sunshine Ordinance Task Force, where they took their cases and debated the minutiae of the law that grants them access to what they’re looking for.

For Wayne Lanier, it started with a $600 tax for neighborhood beautification. James Chaffee and Peter Warfield were seeking reform at the San Francisco Public Library. Kimo Crossman wanted more transparency in the city’s wi-fi deal with Google-EarthLink. Michael Petrelis was trying to find a keyhole into local nonprofit AIDS agencies. Allen Grossman thought the city’s attorneys should shelve their redactive black ink. And Christian Holmer — he just considers sunshine a part of his job.

They’ve been working together loosely during the past year or so — and in most cases, they’ve won. Their ongoing battles also show how the city’s laws and practices badly need reform.

Collectively, the sunshine crew considers the issue of metadata its biggest victory of the year (see "The Devil in the Metadata," 11/15/06), because it forced city officials to abandon their fear of the unseen electronic data that is generated whenever they hit send or open a new word-processing document.

Paul Zarefsky, a deputy city attorney with the City Attorney’s Office, argued that electronic documents could be rife with redactable goods and hackers could use this data to crack into the city’s server. According to him, this was ample reason to only release public information as a paper document or a PDF. The sunshine activists said this was an environmental waste and a very un–user friendly format in this age of electronic searches. The task force and Rules Committee of the Board of Supervisors agreed, found the city attorney’s arguments specious, and demanded agencies follow the letter of the law and release documents in an electronic format.

Some departments still aren’t doing that, which is a problem these citizens have discovered: the Sunshine Ordinance, though very good, could be much better and is overripe for reform.

The ordinance, adopted by voters in 1993, grants San Franciscans far more traction and power than the federal and state open-records laws by setting deadlines and offering the forum of the task force for addressing complaints when documents are not forthcoming.

When a citizen makes a request for a public document, it’s often because somebody sees something from the kitchen window while washing dishes and says, "Huh, I wonder what’s going on."

For Wayne Lanier, that moment came when he received a bill from the city for $600 after he improved the sidewalk and installed some planters in front of his house on Fell Street. Lanier had gone through the proper planning and permit process and was confident everything he’d done was within the law. So why was he being fined?

With a little research, Lanier discovered that an ordinance, recently passed by the supervisors at the urging of the mayor, inadvertently took into account sidewalk fixtures such as planters when taxing property owners and merchants for putting up signs and cluttering rights-of-way. Lanier began to research how the law came to pass.

"I was told there were various meetings with the mayor," Lanier said. "I didn’t know when they were. So I started using the Sunshine Ordinance as a means to getting the mayor’s calendar. First I wrote a rather chatty letter asking for it, and there was no response. So I wrote a more formal request and also said maybe you ought to make your calendar public. The governor of Florida’s done it. It’s quite easy to do."

But it wasn’t easy for room 200. Lanier filed his original request March 3, 2006. A year later he has not received what he asked for. He’s been told by the Mayor’s Office of Communications that the calendar can’t be released because it tells exactly where Gavin Newsom is supposed to be and who is going to be protecting him. Lanier has urged the office to make the document public at the end of each week, once security concerns have passed. That hasn’t happened.

In addition to losing portions of the mayor’s calendar during a staff turnover and heavily redacting the few calendar items it has made available, the Mayor’s Office has not set or followed a policy regarding public access to this public document. But Lanier’s original request has not been dropped. Christian Holmer picked it up.

Holmer is sunshining for sunshine. A manual laborer by day, Holmer’s been a longtime resident of the Haight-Ashbury neighborhood and became volunteer coordinator of the San Francisco Survival Manual, a manifestation of the 40-year-old Haight Asbury Switchboard, once a clearinghouse of services and information for city residents. The modern-day equivalent is part of a public information pilot project approved in 2004 with the support of 10 members of the Board of Supervisors that encourages the sharing of all city documents in an open forum. Holmer makes regular and massive requests for all manner of information from a variety of agencies, urging them to employ the technological ease of e-mail to send him documents as soon they’re created by the city — in effect, CCing him on everything.

Holmer says the point is not only to compile a library of city documents but to establish best practices for the agencies that are supposed to provide information when the public requests it. By encouraging this free flow of information that takes, according to him, only a few keystrokes and mere seconds to disseminate electronically, Holmer hopes a culture of openness is being cultivated.

"You push a department to a certain level of compliance, and it raises all the boats," Holmer said.

James Chaffee began seeking public information about the San Francisco Public Library in 1974, long before the Sunshine Ordinance was born. The tall, professorial man has a habit of employing erudite references from literature, philosophy, and film in his regular newsletters decrying the secret actions of the Library Commission. His writings have received attention and acclaim in the national world of library news.

"The original library commissioners would be shocked if they could see the openness that exists now," Chaffee says.

He’s pushed for more weekend library hours and successfully brought enough attention to block the public library’s plans to purchase costly and suspicious radio-frequency identification tags and grant the task of collecting overdue fees to a debt agency.

Peter Warfield, executive director of the Library Users Association, and Lee Tien of the Electronic Frontier Foundation, picked up the radio-frequency issue and ran with it, making public records requests that might substantiate the library’s argument that thousands of dollars in workers’ compensation claims for repetitive stress injuries would be remedied by an investment in the expensive new technology.

The library wouldn’t turn over any documents, so Tien and Warfield went across the bay to Berkeley, which doesn’t have a Sunshine Ordinance (though the city is currently working on one). The Berkeley Public Library gave enough information to fully debunk the claims. Of more than $1 million spent on five years of workers’ comp, just 1 percent was for repetitive stress injuries. The Chaffee-Warfield-Tien efforts halted a nationwide move toward employing this potentially privacy-invading technology.

Then there’s Kimo Crossman.

Crossman is regularly criticized for his public records requests, which some city agencies feel are voluminous and burdensome. "I’ve had to stop the office a couple times. There are 300 people in this office," said Matt Dorsey, spokesperson for the City Attorney’s Office, which receives almost daily requests or reminders of requests from Crossman, the length and breadth of which bring some city departments to their knees.

Technology is Crossman’s interest, and he made his first public records request of the Department of Telecommunications and Information Services in September 2005, for contracts and related documents between the city and Google-EarthLink.

"As an interested citizen, I wanted to participate in the wi-fi initiative," Crossman told us. He received his request — with 90 percent of the information redacted. The DTIS claimed attorney-client privilege and the need to protect proprietary information to keep Crossman from seeing more than a fraction of the data.

Even though a specific section in the Sunshine Ordinance allows for the release of a contract when there are not multiple bidders and today the deal is strictly between the city and Google-EarthLink, the DTIS still refuses to hand over the documents Crossman wants. DTIS spokesperson Ron Vinson continues to cite the advice of the City Attorney’s Office.

The city attorney’s relationship with sunshine is a problem, according to Allen Grossman, a retired business lawyer. Grossman’s requests for information have transcended their original intent — some Department of Public Works permits for tree removal near his home on Lake Street. They have become an inquiry into why so many departments regularly employ the City Attorney’s Office to represent them when it’s a direct violation of section 67.21(i) of the Sunshine Ordinance. That section states the city attorney "shall not act as legal counsel for any city employee or any person having custody of any public record for purposes of denying access to the public." The public lawyers are permitted only to write legal opinions regarding the withholding of information, which must be made public.

"The whole purpose of that section was to level the playing field and get the lawyers out of it," said Grossman, who says the office ghostwrites letters denying access, putting citizens who may not have legal counsel to advise them at an unfair advantage. It’s not in keeping with the spirit of the law.

Dorsey defends City Attorney Dennis Herrera, pointing out that deputy city attorneys no longer represent departments at the task force when there’s a complaint. They’re still writing those letters, though.

"When we give advice on sunshine, it’s a matter of public record. We will prepare a written cover-your-ass statement," Dorsey said. "To some we would appear as the bad guy, but I yield to no one on our commitment on sunshine in this city."

Bruce Wolfe, a task force member who’s seen scores of departments employ the ghostwriting tactic, said, "There is one area that concerns me greatly — the use of attorney shield. The question is what is the city attorney’s role? The advice is important because that’s something every other department can use, but it shouldn’t just be some way to squiggle out of providing records."

Dorsey related a recent case in which KGO wanted access to Muni documents that identified the names of operators. "We provided the documents, but we redacted the names. If we lose to KGO in front of the task force, we have to turn over docs. If we lose to a court that finds we violated privacy, we’re on the hook for potential substantive damages. These results can get very expensive for taxpayers. There’s an act of balance that has to occur."

Many task force members, activists, and citizens agree that the ordinance and task force are wonderful tools but still lack the necessary bite. The task force has no power to review documents and determine if a department’s secrecy claims are true. And when a department is found in violation, there are no specific fines or penalties that the task force can levy.

But some are still happy the body even exists. "We have a great Sunshine Ordinance Task Force," said Michael Petrelis, who has been trying to find information about local AIDS nonprofits and advisory boards that are usually exempt from public records law — unless they receive city funding. Petrelis found that avenue into these organizations, and when they don’t comply with records requests it’s still a boon for him, because filing a complaint requires them to come and be accountable in front of the task force, an open hearing that Petrelis can also attend. "I have learned so much at those meetings, just observing," Petrelis said. "The task force process is so valuable in all its beautiful permutations." *

The ethics of flacks

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› steve@sfbg.com

They go by many names: public relations professionals, spokespeople, public information officers, press secretaries, liaisons, public affairs practitioners, press agents, or — the widely used slang — flacks. They are the gatekeepers of records and access to their powerful bosses, either a conduit or barrier for those seeking information.

A spotlight was shined on the role of flacks in San Francisco last month when Peter Ragone, then the influential press secretary for Mayor Gavin Newsom, was caught posting comments under fake names on some local blogs and then lying about it to journalists.

The incident prompted Board of Supervisors president Aaron Peskin to call for Ragone’s ouster (which Newsom resisted, before last week transferring Ragone to his reelection campaign team, where he’s not dealing directly with the press or public) and to craft legislation creating standards of conduct for the city’s public information officers.

"There are bright ethical lines that cannot be crossed," Peskin told the Guardian. "Passing this is a wake-up call to people so busy playing politics that they’ve forgotten their moral responsibility."

The code calls for the city’s public information officers to be honest and accessible and to "advance the free flow of accurate and truthful information to the public and the press."

The legislation, which will soon be heard in the Rules Committee before going to the full board, notes that "it is critically important that Public Information [Officers] are viewed by citizens and the media as honest and trustworthy brokers of information" and "deception and disinformation severely damages the public trust and limits the City’s ability to serve the public."

Many activists and journalists say that’s a serious problem right now, particularly in the Mayor’s Office of Communications, which has become known for aggressively pushing deceptive political spin and repeatedly blocking the release of public documents, according to rulings by the Sunshine Ordinance Task Force. In addition to Ragone, deputy press secretary Jennifer Petrucione is widely seen by those she deals with as a less than forthright and forthcoming broker of information.

But new press secretary Nathan Ballard, whose first day was March 5, said he supports the Peskin legislation and promises to maintain high ethical standards. "My overall philosophy is I’d like an accessible press office. You should be able to get the information you need with dispatch," he told us. "The public has a right to receive information from us that is true, accurate, and fair."

He made a distinction between private-sector public relations people and public-sector information officers, noting that the latter should be held to a higher standard of conduct because they work for taxpayers, not corporations or just politicians. It was a point echoed by City Attorney’s Office spokesperson Matt Dorsey, one of the most widely respected flacks in San Francisco.

"I have a duty to taxpayers and citizens to provide information, whether it’s good for my client or not," Dorsey told us. "Even when you’re working for an elected official, it’s the taxpayers who pay you."

Dorsey accepts that it’s the nature of the job and a free democratic society that sometimes his boss will take lumps in the press, but he said, "I will never hold it against a journalist for portraying the city attorney as a bad guy when we do look like the bad guy."

Eileen Shields, spokesperson for the Department of Public Health, agreed: "I don’t think of my client as the Department of Public Health of Mitch Katz. I think of it as the people of San Francisco."

But other flacks, such as the Metropolitan Transportation Commission’s Maggie Lynch, have a more adversarial relationship with the press and have been known to chew out journalists who write unflattering stories, although she agrees that flacks should maintain high ethical standards.

"It’s my job to point out what’s good about what the agency does," Lynch told us. "I pride myself on my directness and my honesty…. I think the standards should be the same for reporters and public information officers, that you need to be honest."

As the tenor of her comments indicates, there can be a dynamic tension between flacks and journalists that sometimes gets testy. And that can be exacerbated when the flack works for an agency under strong public scrutiny, such as Muni or the Mayor’s Office.

That’s why Peskin said his code is important. "Transparency in an electoral democracy is what keeps the system honest," said Peskin, who agreed that the issues associated with the Mayor’s Office of Communications go beyond the lie Ragone told about his blogging. "There is no question the Mayor’s Office has repeatedly failed to adhere to the Sunshine Ordinance."

Without commenting on the past, Ballard pledged to cooperate in the future. "We will comply with the spirit and the letter of the Sunshine Ordinance."

In addition to Peskin’s legislation, City Attorney Dennis Herrera has announced a new program that offers expanded training for the city’s flacks, covering Sunshine Ordinance compliance, legal guidance, and ethical guidelines. "It would be up to policy makers whether they want to make it mandatory," Dorsey said.

Ironically, the Guardian attempted to interview someone from the Public Relations Society of America (whose code of conduct Peskin incorporated into his legislation) for this story, but we were unsuccessful despite days of trying. Judy Voss, the contact person listed in its code of ethics, referred me to Janet Troy, the vice president of public relations, who spent 10 minutes asking me questions about the questions I had and said she would have someone get back to me. Despite several days of my calling and e-mailing her, neither she nor anyone from the PRSA got back to me by press time.

Luckily, there are alternatives to the PRSA. The National Association of Government Communicators has an even stricter code of conduct for public-sector flacks. It includes this central tenet: "We believe that truth is inviolable and sacred; that providing public information is an essential civil service; and that the public-at-large and each citizen therein has a right to equal, full, understandable, and timely facts about their government." *

The other shoe

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› steve@sfbg.com

Mayor Gavin Newsom has never answered questions about his illicit affair with his appointments secretary Ruby Rippey-Tourk — and even now, with city money involved, he’s sticking to the stonewall.

The Guardian on Feb. 15 broke the story that the city had paid Rippey-Tourk more than $10,000 months after she left her job (see "Newsom Aide Got Paid," www.sfbg.com/blogs/politics).

But the mayor refused to even acknowledge questions I directly put to him earlier that day, just as he has since he confirmed media reports of the affair Feb. 1, when he issued a short statement and took no questions.

"We are confident that this matter was handled appropriately and humanely," he said in the prepared comments his Office of Communications put out.

But there are lots of legitimate questions that arise from payroll records we’ve obtained, which show Rippey-Tourk received more public money than she was entitled to during 2005, when the affair occurred, and 2006. Were public funds converted into hush money? Who was involved? What pressure was applied?

City Attorney Dennis Herrera offered some hope of accountability Feb. 15 when, in response to questions from the Guardian, the San Francisco Chronicle, and other media outlets about the payments, he announced an investigation.

"With the full cooperation of the city officials involved, the City Attorney has already begun the process of reviewing the paid leave to Ms. Rippey-Tourk to assure that it was done properly under City laws and procedures," Herrera’s office wrote in a statement as he left for vacation.

The payroll records show that she received $21,755 in paid leave last year for 534 hours of work that she didn’t do. That amounts to about 13 1/2 weeks of paid time off, well more than the 10 days vacation time and 13 days of sick leave to which she was entitled. And it includes a lump $10,155 payment that she received in September.

City law allows employees with "a life threatening illness or injury" to receive paid leave if coworkers are willing to donate their vacation and sick days to the cause. And Sam Singer, a spokesperson for Rippey-Tourk and her husband, Alex Tourk (who worked as Newsom’s deputy chief of staff and later as his campaign manager before resigning last month when he learned of the affair), said that’s what happened.

While Rippey-Tourk was in substance abuse treatment from May through July 2006, Singer told the Guardian, Tourk — who says he was unaware at the time that his wife had been having sex with the mayor — asked city officials whether there was a way to get paid for what began as a period of unpaid leave.

"Several of her coworkers donated their sick time to Ruby during this time of personal crisis," Singer told us.

Asked why Rippey-Tourk didn’t return to her good city job after leaving rehab in July, Singer said, "She just felt it was a chapter in her life that was over, and she wanted to move on." Asked whether Rippey-Tourk may have felt uncomfortable returning to work for a boss who had bedded her during a time when she was having problems with alcohol, Singer refused to comment.

But Sup. Jake McGoldrick, who has called for Newsom’s resignation, said the entire episode was unseemly and the mayor showed poor judgment for someone in a position of authority whom Rippey-Tourk trusted. "I think he took advantage of someone who was in a very vulnerable position," McGoldrick told us.

There are other questions about Rippey-Tourk’s tenure at the city. Payroll records show she never worked a full week in 2006. And her 7 1/2 weeks of unpaid leave in 2005 also appear to be more than she was entitled to. She received $80,195 in compensation in 2005, up from $63,522 the previous year, which was her first in the Newsom administration. The Chronicle also reports that more than half of Rippey-Tourk’s time sheets weren’t signed by her supervisor, as required.

And the Mayor’s Office has refused to answer questions about who donated their leave time to Rippey-Tourk, whether they were asked to and if they knew about the affair, and whether the city has been exposed to a sexual harassment suit by her or employment discrimination suit by other employees. *

The devil in the metadata

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The Rules Committee of the Board of Supervisors is considering whether or not the city should allow its departments to release electronic documents that include metadata. Although the Sunshine Ordinance Task Force has already hashed over the minutiae of this issue and ruled that metadata can and should be released, the mystery enshrouding what it is, and the lack of any specific policy or known precedent in other cities or states with public records laws has pushed the discussion upstream to where a formal legislation has become a possibility.
Freedom of information purists are saying all the parts and pieces of a document are part of the public domain, while the City Attorney’s Office is claiming another layer of protection may be required.
Metadata entered the realm of public discussion in San Francisco after citizens started making requests of electronic documents with a specific plea for metadata. Activists Allen Grossman and Kimo Crossman wanted copies of, ironically enough, the city’s Sunshine Ordinance, in its original Microsoft Word format. Grossman and Crossman wanted to use the advantages of technology to follow the evolving amendments the Sunshine Ordinance Task Force members were considering for the city’s public records law. These “tracked changes” are a common function in Word, and are, technically, metadata.
When Clerk of the Board Gloria Young received these specific requests for Word documents, not knowing what this “metadata” was or what to do about it, she turned to the office of City Attorney Dennis Herrera for advice.
Deputy City Attorney Paul Zarefsky initially gave oral advice to Young, and when pressed by the Sunshine Ordinance Task Force, issued a five-page memo in response, arguing that release of documents with metadata could pave a path for hackers into the city’s computer system, render documents dangerously vulnerable to cut-and-paste manipulation, and invite another unwelcome burden of reviewing and redacting for city officials. Young followed his advice and proffered the requested documents as PDFs.
A PDF, or “portable document format,” is essentially a photograph of the real thing, and contains none of the metadata that exists a couple clicks of the mouse away in a Word document. Evolving changes can’t be tracked, and PDFs don’t have the same searchability that Word docs have. So PDFs of the Sunshine Ordinance that Young provided didn’t have the functions that Crossman and Grossman were looking for, and were utterly useless for their purposes.
“It’s 92 pages,” Grossman said of the PDF Sunshine Ordinance. “I can’t search it electronically if I want to find something. This document I received is of no use to me.”

Meta-what?
Before delving too deep into the intricacies of current city politics, let’s pause for a moment to note that you don’t need to be a Luddite to have no idea what metadata is. It sounds like some diminutive or ethereal version of the real thing. In a sense, it is.
Simply put, metadata is data about data, and grows with weed-like tenacity in the electronic flora of the twenty-first century. Common examples include the track an email took from an outbox to an inbox, details about the owner of a computer program, or the laptop on which a Word document has been typed.
Metadata becomes cause for concern when there is something to hide. Not readily visible, metadata requires a little sleuthing to reveal, but in the past it’s been used to uncover deeper truths about a situation. For example, attorney Jim Calloway relates on his Law Practice Tips blog a divorce case where custody of the child was called into question because of the content of emails sent from the mother to the father. The mother denied she’d sent the emails, though the father vehemently insisted she had. A court forensics investigation found metadata showing that, in reality, the father had written the emails and sent them to himself.
“Metadata speaks the truth,” Calloway writes. “My position has always been that a tool is a tool. Whether a tool is used for good or evil is the responsibility of the one who uses the tool.”
Lawyers have historically advised that metadata be fiercely protected. Jembaa Cole, in the Shidler Journal for Law, Commerce and Technology wrote, “There have been several instances in which seemingly innocuous metadata has wreaked professional and political havoc.”
Cole goes on to cite a gaffe from Tony Blair’s administration – a document about weapons of mass destruction was available on the government’s web site, which claimed the information was original and current. Metadata showed that, not only had the information been plagiarized from a student thesis, it was more than ten years old.
Cole urges lawyers to take an aggressive tack against revealing metadata, by educating offices about its existence, making a practice of “scrubbing” it from documents, and providing “clean” documents in PDF or paper form.
The city attorney’s office has taken a similar stance. Spokesperson Matt Dorsey told us metadata has been a part of the continuing education of the city attorney’s office. However, all past case law of which they are aware focuses on metadata in the context of discovery and “the conclusion of most state bars is that they have the obligation, under attorney-client privilege, to review metadata prior to discovery,” he said. “The issue of metadata is a relatively new one in legal circuits. It isn’t a brand new issue to us, but it is in the context of Sunshine,” said Dorsey, who maintains that metadata could still fall within the standard redaction policies of the public records act.
Terry Franke, who runs the open-government group Californian Aware, argues that “the city attorney needs to complete this sentence: ‘Allowing the public to see metadata in Word documents would be a detriment because…’ What?”
“From the beginning of this discussion the city attorney has never provided a plausible, practical, understandable explanation of what is the kind and degree of harm in allowing metadata to be examined that justifies stripping it out,” Francke said.

To the task force
When Grossman and Crossman were denied the documents as they’d requested them, they filed complaints with the Sunshine Ordinance Task Force. In their cases, first heard on Sep. 26, they argued there should be no concern that the text of Word documents could be manipulated – anybody with a gluestick and a pair of scissors could do that to any piece of paper. That had been a consideration when the Sunshine Ordinance was drafted, and why the city always retains the undisputable original.
Thomas Newton, of the California Newspapers and Publishers Alliance, who was involved in drafting the state’s public records law, agreed with them. “If you follow his logic, you can’t release a copy of any public record because, oh my God, someone might change it,” Newton told us.
Crossman and Grossman also pointed out that to convert documents from Word to PDF invites even more work to a task that should be as burden-free as possible. It’s a regular practice for the clerk of the board to maintain documents as PDFs because that preserves signatures and seals of ratified legislation, but to make it a policy of all departments could invite a landslide of work, printing out documents and converting them to PDFs – not to mention undermining the notion of conserving paper.
Also, translation software and the “screen reader” feature that a blind person might employ to “read” an electronic document, don’t work with PDFs.
First amendment lawyers also offered written opinions on the issue. “Some of the city’s arguments have no support in the law whatsoever,” wrote Francke. “The fundamental problem for the city is that it has no authority to legislate a new general exception of exemption from the CPRA (California Public Records Act), and that’s what’s being advanced here.”
“The city’s scofflaw position represents the status quo ante, the old law that used to allow an agency to provide a copy of computer data ‘in a form determined by the agency.’ The city’s position has been directly and completely repudiated by the legislature. If the city disagrees with the law, it should come to Sacramento and get a bill,” wrote Thomas Newton, general counsel for the California Newspaper Publishers Association (CNPA).
As for the hacker scare, Zac Multrux, an independent technology consultant was invited to the Sep. 26 hearing by task force member Bruce Wolfe to speak about the dangers of metadata. He suggested a number of technological tools that are available for purchase or are free online, that will “scrub” metadata from documents. He said that while it’s true that someone with ill intent could mess with metadata, “I think someone would need a whole lot more than the name of a computer” to hack into the city’s system. “Personally, I don’t see it as a significant security risk,” he said.
It was also pointed out at the hearing that a variety of city, state, and federal departments already make Word and Excel documents available. Wolfe did a quick online search and found more than 96,000 Word documents on the State of California web site. “They’re not afraid to make Word documents public online,” he said.
Over the course of two hearings the task force found no basis for Zarefsky’s claims in either the city’s law or the California Public Records Act – both of which explicitly state a document should be released in whatever format is requested, as long as the document is regularly stored in that format or does not require any additional work to provide.
The task force found Young in violation of the ordinance and she was told to make the documents available in Word format. No restrictions or rulings were made for future requests, but task force member Sue Cauthen said, “I think this whole case is a test case for how the city provides documents electronically.”

What’s next?
As requested, Young had the Sunshine Ordinance, in Word format, pulled from the city’s files and posted on a separate server outside of the city’s system to be viewed. Crossman, noting the added labor and resources for that provision, wondered if that would happen to all public records requested in Word format, so he cooked up another request to test his theory.
He asked for all the pending and accepted legislation for the month of September from the Board of Supervisors, in Word format.
While the Sunshine Ordinance Task Force had found that withholding documents because of metadata was against the law, redaction of privileged information is still legally necessary, and Young continued to follow the city attorney’s advice that a PDF with no metadata was still the safest, easiest way to comply. She told us, “I don’t take their advice lightly.”
Zarefsky’s opinion said departments “may” provide PDFs instead of Word documents and that “metadata may include a wide variety of information that the City has a right — and, in some cases a legal duty — to redact. Young’s office does have pending legislation in Word format, she says it does not fall within the expertise of her staff to review and redact the metadata in those documents because they didn’t author them. “Since we don’t create the documents, how could we ever know whether the metadata should be released? We don’t know what it is,” she told us. “We couldn’t even hire expertise that would know.”
“I can’t imagine there’s so much toxic stuff in Board of Supervisors records they can’t let out,” Grossman told us. “This is a whole mystery to me.”
“It’s just data,” says Crossman. “City employees created it on our dime. Unless it falls under redaction discretion, entire documents should be provided.”
Young took the issue to the legislators who do draft the legislation, asking the November 2 meeting of the Rules Committee for further policy consideration. Miriam Morley spoke on behalf of the city attorney’s office, and said there was a sound legal basis for providing documents as PDFs, but that this was an evolving area of the law that the city attorney’s office wasn’t aware of until about 9 months ago. They could find no other cities currently grappling with the issue, but she said, “Our conclusion is that a court would likely hold a right to withhold a document in Word.”
The committee decided to research the issue further before making a ruling. Committee chair Ross Mirkarimi said he had been integral to the drafting of the Sunshine ordinance, and to rush a decision could be detrimental.
“It seems to me in the spirit of the Sunshine law this is something we should really look at,” Tom Ammiano said. It’s currently at the call of the Chair of Rules and no date has been set for the Rules Committee to hear it again.
A policy in San Francisco could set a real precedent for public records law, but according to many first amendment lawyers, for the Board to do so would be a violation of state law. “I know of no other city, county, or subdivision of state government or state agency that’s disregarding the clear intention of the law as some elements of San Francisco city and county government are planning to do,” Newton told us.
“It’s a debate that can’t really occur outside of a proposal to change the state law,” he said. “The Board of Supervisors can’t pick and choose which law to comply with,” and he said the state’s constitution and public records act trumps the city, which is reading the law too narrowly. “They’re required to give a broad interpretation of this access law. If they don’t like it they should come to Sacramento and get a bill,” he said.
“I think a lot of city departments, and policy and advisory bodies can save themselves a lot of headaches by declaring as policy that they will provide documents in their original formats,” task force member Richard Knee said. “With metadata.”

The new sunshine “problem”

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EDITORIAL Matt Dorsey, who handles press for City Attorney Dennis Herrera, stopped by last week to talk to us about the barrage of public records requests that are coming in from one activist, Kimo Crossman, who is demanding so many records and so much information from so many departments that it’s costing the city big money.
The problem, Dorsey says, is a lot of the records that people like Crossman request (particularly if they have metadata, or hidden computerized information, embedded in them) have to be reviewed by a lawyer before they’re released to determine if any of the internal information might contain something confidential. The city typically accounts for its legal work at about $200 an hour — and already, Herrera’s office has spent hundreds of hours scouring records just to satisfy one aggressive gadfly whose sunshine activism is, we have to agree, sometimes rather scattershot. That’s a hefty taxpayer bill.
Dorsey’s done more for promoting open government than anyone who has ever worked for the Office of the San Francisco City Attorney, so we don’t dismiss his concerns. And we’ve said before and we’ll say again that the Sunshine Task Force needs to take up this issue, hold hearings, and make some policy recommendations.
Still, we had the same response we typically do when public records are at issue:
Why all the effort? Why the fuss? Just release the stuff. Give Crossman what he wants, and that will be the end of it.
Dorsey’s response: state law and state bar requirements mandate that attorneys, including municipal attorneys, carefully monitor all documents that might contain metadata and “at every peril to himself or herself” prevent any potentially confidential material from accidental release. “The lawyers in our office risk real penalties if they don’t carefully review every one of these requests, and that takes a lot of time,” Dorsey told us.
Well, if that’s a problem, the city and the state need to address it right now. Metadata is increasingly becoming part of government activities and will increasingly be part of public records requests by community activists. And there’s no reason that city employees, including city lawyers, should have to fear retribution if they make a good-faith effort to release information to the public.
Under state and local law everything the city government does is presumed to be public, unless it falls under one of a set of very narrowly defined exemptions.
But in San Francisco there’s been a culture of secrecy at City Hall that goes so far back and is so deeply inbred it’s hard to remove it from the political DNA. All sorts of deals are done behind closed doors. It’s considered perfectly acceptable to promise vendors bidding on public contracts that they can keep basic financial data secret. Every city official seems to think that every request needs legal review.
It’s ridiculous — and the supervisors, the mayor, and the city attorney should take some basic steps to end it.
For starters, the supervisors should pass a clear policy statement that says no city employee shall face any disciplinary action of any sort stemming from a good-faith effort to release information to the public. Herrera should tell his lawyers the same thing: nobody gets in trouble for handing out information.
Yes, there are sensitive documents, particularly in the City Attorney’s Office — but overall, the risk to the city of a mistaken release of confidential information is far, far lower than the risk (and the cost) of continuing this deep culture of confidentiality.
If that creates a problem with the state bar, Assemblymember Mark Leno should introduce a bill that eliminates any penalties or consequences for public agency lawyers who, in good faith, allow the release of public information that may unintentionally include confidential material.
Meanwhile, Crossman has a good idea: why not create a publicly accessible database that gets automatic copies of every document created at City Hall (unless there’s a damn good reason to mark it secret)? That way the busiest of the advocates can spend their time searching the files on their own, and the lawyers can go back to fighting Pacific Gas and Electric Co. SFBG

City hall’s new secrets

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EDITORIAL Back in 1999 reporter Scott Rosenberg dug up a juicy little scoop for Salon: he found out that part of Microsoft’s annual report was written on an Apple computer. That caused the giant purveyor of Windows software (and Apple competitor) no small amount of embarrassment. And Rosenberg did this without any secret source or leaked records; he just looked at the metadata embedded in the files of public company documents.
Metadata is part of the new frontier of public-records law. It’s the stuff you can’t see that’s hidden in digital versions of, say, Microsoft Word documents. It shows what computer (and type of computer) created the document and often shows the revisions the document has gone through. It’s sort of an electronic history of what used to be something typed on paper — and as such, it’s extremely useful to researchers who want to follow what the government is doing.
It’s also, all too often, something that public officials want to hide. That’s the case in San Francisco, where Gloria Young, the clerk of the Board of Supervisors, has refused to release copies of the original Word versions of what are clearly public records. She wouldn’t, for example, give out a Word copy of the city’s Sunshine Ordinance.
That’s a mistake — and the Board of Supervisors needs to direct Young to change her policy.
Young isn’t refusing to release the records per se — she’s had them made into PDFs, the electronic equivalent of photocopies that don’t contain the embedded data. And she’s released those versions. The office of City Attorney Dennis Herrera concluded Sept. 19 that city officials have the right to withhold metadata and provide documents only in PDF format. The argument, contained in a six-page memo, goes more or less like this:
A Word version of a document can be edited and changed — and thus someone who requests a public record might alter it and then pass it off as a true version.
Besides, metadata might possibly contain privileged information (legal advice from an attorney). It might include early drafts of a document (which are exempt from disclosure but really shouldn’t be). And it might give somebody with evil intent the ability to hack into the city’s computer system and do a lot of damage.
In the end, deputy city attorney Paul Zarefsky argues, figuring out where there is and isn’t metadata and what it might include is a huge job that requires special skills and would be inordinately burdensome for city agencies.
The first argument is just silly. Sure, somebody could take a copy of a city record and alter it — but enterprising scammers have always been able to take real records and turn them into phonies. That’s why the city keeps the originals on file and releases only copies.
The rest of Zarefsky’s analysis is a bit more complex. But in the end the posture of the city is far too defensive. This is, after all, data that was produced by city employees on the taxpayers’ dime. And like just about everything else the city produces — with only narrow exceptions — it ought to be released to the public.
We don’t buy the argument that there are vast stores of deep secrets lurking in the metadata that might somehow damage the city’s interests. There may be a few specific cases in which documents have been reviewed by the City Attorney’s Office and might include confidential advice. But most of the material will simply show who created the document, how it was edited (and by whom), and how all of that relates to the final product. Like the Microsoft revelation, some of that might embarrass city hall — but that’s not an excuse to keep it secret.
Tom Newton, general counsel for the California Newspaper Publishers Association, noted in a Sept. 22 letter to the Sunshine Ordinance Task Force that the “CNPA is aware of no other state or local agency that has adopted this restrictive policy.”
Herrera’s office, interestingly, isn’t arguing that all metadata must be secret — the opinion only says that department employees have the ability to withhold it if they want to. That’s where the supervisors need to weigh in.
Young asked the Rules Committee on Nov. 2 for policy direction on the matter. The committee heard testimony and took the matter under advisement.
The chair, Sup. Ross Mirkarimi, should bring up the issue again at the next possible meeting, and the committee should direct Young — and all other city officials — to stop using metadata as an excuse to withhold documents. San Francisco ought to be taking the lead here and setting a policy precedent for cities across the state. SFBG
PS This is just one example of what seems to be a renewed war on sunshine at City Hall. The task force just had its budget cut and no longer has a full-time staffer assigned to it (although the Sunshine Ordinance mandates full-time staff assistance). The supervisors should make it clear that San Francisco isn’t going to slide backward into the old, dark days.

The Destroy California Initiative

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› sarah@sfbg.com
If you knew there was an initiative on the ballot that would make it impossible for government to protect the environment, build affordable housing, raise minimum wages, and mandate health care, you’d vote no on it, right?
Especially if you knew this measure would force taxpayers to spend billions to prevent developers and private property owners from doing things that harm neighborhoods, communities, and the environment.
So why is Proposition 90, which does all this and more, still leading in the polls?
It’s all about fear — and the ability of one wealthy real estate investor from New York City to fund a misleading campaign that exploits legitimate concerns about eminent domain.
Eminent domain is the legal procedure that allows the government to take over private property. It’s been used traditionally to build roads, rail lines, schools, hospitals, and the like. But it’s also been used — abused, many would say — to condemn private homes and turn the land over to developers for more lucrative projects. And after the US Supreme Court ruled in 2005 that doing so was OK, it was easy for property-rights types to whip those fears into a frenzy.
New York Libertarian and real estate investor Howie Rich, who hates government regulation, used the court decision to saddle up a herd of Trojan horses with eminent domain, stuffing the poison pills of “highest best use” and “regulatory takings” deep in their saddlebags, slapping their rumps with wads of cash, and sending them into California, Arizona, Idaho, Montana, Nevada, Oklahoma, and Washington.
Here in California, Rich’s millions went in large part toward paying petitioners a buck per signature to qualify Prop. 90 for the ballot. The pitch was stopping eminent domain — but there was little mention of the extreme provisions contained within the measure’s fine print that if passed, will mean more lawyers and fewer herons and hard hats.
For starters Prop. 90 changes the rules for calcuutf8g how much the government has to pay property owners when it takes their land. The new rules would dramatically increase the price of infrastructure and public works projects like building roads and levees, as well as purchasing open space and preserving habitats and endangered species.
Worse, Prop. 90’s language changes the valuation of regulatory takings. That’s legal mumbo jumbo, but what it amounts to is this: whenever the government takes actions that aren’t explicitly for the protection of people’s health and safety — like establishing rent control, minimum wages, and agricultural easements — property owners can claim that the value of their holdings was decreased. (Protecting an endangered species, for example, might prevent some parcels from being developed.) Under Prop. 90 those landowners can file claims of “substantial economic loss” — and put the taxpayers on the hook for billions (see “Proposition 90 Isn’t about Eminent Domain,” page 22).
THE ICE AGE COMETH
Prop. 90 opponents predict that if the measure passes, its effects will be disastrous, wide-ranging, and immediate.
Bill Allayaud, state legislative director for the Sierra Club, told us it was Prop. 90’s “regulatory takings” clause that led to unprecedented opposition after individuals and groups analyzed the measure’s fine print.
“One little paragraph activated a coalition like we’ve never seen in California history,” Allayaud says.
Prop. 90 flushes away a century of land use and community planning, including regulations and ordinances that protect coastal access, preserve historic buildings, limit the use of private airspace, establish inclusionary housing, and save parks. In short, Prop. 90 destroys everything that makes California a decent place to live.
Over at the California Coastal Commission, executive director Peter Douglas frets that his agency will no longer be able to carry out its mandate to protect the coast.
“Every decision the Coastal Commission makes where we approve projects but impose conditions to protect neighborhoods and communities will be subject to claims,” Douglas says.
“Sensitive environments like the San Francisco Bay and Lake Tahoe will be exposed, along with residential neighborhoods, ag lands, and public parklands. And it will erode the state’s ability to protect against new offshore oil drilling, new liquid natural gas terminals, harmful ocean energy projects like offshore wind turbines and wave energy machines and make it impossible to set aside essential marine reserves to restore marine life and fisheries.”
Members of the California Chamber of Commerce oppose Prop. 90 because it will make it more complicated and costly to build new infrastructure like freeway lanes, sewer lines, levees, and utility sites.
President Allan Zaremberg observes, “At a time when California is trying to finally address the huge backlog of needed roads, schools, and flood protection–water delivery systems, the massive new costs of Prop. 90 would destroy our efforts to improve infrastructure.”
Among government agencies the outlook is equally bleak. Unlike Oregon’s Measure 37, which passed in 2004 and has already led to over $5 billion in claims, Prop. 90 isn’t limited to private land but extends to private economic interests. This wide-ranging scope means that it’ll be almost impossible for government to regulate business without facing claims of “substantial economic loss,” making it prohibitive to protect consumers, establish mandatory health care coverage, or raise minimum wages.
San Francisco city attorney Dennis Herrera told the Guardian, “If Prop. 90 passes, we might as well get out of the business of local government.”
BACK TO THE FUTURE
Asked what California would look like if Prop. 90 had been law for a decade, Gary Patton, executive director of the Planning and Conservation League, paints a sprawl-filled picture.
“All the project proposals that weren’t built would have been, open space and parks wouldn’t have been preserved, almost every public works project would have been affected, and things wouldn’t have been constructed, because there would have been no money because the cost of everything would have gone up.”
Currently, the cost of a piece of land is valued by the market. Under Prop. 90 land would be valued by what it might be used for.
“For instance, a piece of land alongside a highway could one day be developed into a subdivision,” Patton explains. “So that’s the price it would have to be bought at. So unless taxes are raised, Prop. 90’s passage would mean that California would be able to do less. Traffic would be worse. The affordable housing crisis would intensify. Fewer swimming pools and civic centers would be built. Everything that’s done through spending dollars collectively would cost more.”
Within the Bay Area individual communities have chosen to adopt urban growth boundaries, but if Prop. 90 was already in place, Patton says, many environmental and community protection projects wouldn’t have happened.
“Where now we have more focused growth, which is economically and socially as well as environmentally beneficial, there’d be lots more sprawl,” Patton explains. “We’d be a lot more like Fresno and Bakersfield and San Bernardino and Los Angeles. The Bay Area is a place where more people have got together and made sure their communities did things that have been beneficial.”
As for restoring Golden Gate’s Crissy Field or the South Bay Salt Ponds or preserving bird and wildlife sanctuaries, forget about it.
“We’d be more like Houston. Prop. 90 says unless you can pay me for not developing this land, then one day I’m gonna be able to develop it,” Patton says.
A LAWYER’S WET DREAM
Mary Ann O’Malley, a fiscal and policy analyst at the state’s Legislative Analyst’s Office, helped write the legislative analysis for Prop. 90 and as such is familiar with the measure’s far-reaching but more obscure provisions.
“Governments will be required to sell land back to its original owner if they stop using the land for the purpose stated when it took the property in the first place,” O’Malley explains. “And government won’t be able to condemn property to build on another property for the purpose of increasing local government’s tax revenues, but it could do so to build roads and schools.”
As for how the “regulatory takings” section of Prop. 90 affects government’s ability to protect the environment, O’Malley says local governments frequently impose case by case mitigation requirements to uphold the Endangered Species Act, telling a developer where it can build.
“If this is simply an enforcement procedure required by the Endangered Species Act, then it probably would not be viewed as a compensatory act, but if it’s an independent local project decision, it might fall within Prop. 90’s purview.”
Although Prop. 90 supporters say it won’t affect existing laws, Douglas says it’s simplistic to believe that current zoning won’t be superceded.
“Zoning plans aren’t exclusive. They may allow ancillary uses with government’s approval. For instance, you can build additional housing and wineries on ag land, but sometimes these uses are totally incompatible with the area. At which point local government steps in and says, ‘Oh no you don’t.’ But under Prop. 90 government is vulnerable to claims.
“Taxpayers are gonna be stuck with a multibillion-dollar bill. It should be called the ‘Destroy California Initiative.’” SFBG
Read about the Proposition 90 money trail and the truth behind the campaign’s stories at www.sfbg.com.

Bayview’s perspective

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› steve@sfbg.com
Consider the perspective of Marie Harrison and her political allies in Bayview — including the owners and writers at the San Francisco Bay View newspaper — whose support for Proposition 90 has put them at odds with the progressive political community.
Harrison, who is running for supervisor against incumbent Sophie Maxwell, lives on Quesada Avenue just off Third Street, in a diverse neighborhood bustling with vitality. Residents have transformed the wide median on her street into a gorgeous community garden. Almost all the houses are owner-occupied and well maintained.
“Blight” is not a word that most people would use to describe this neighborhood. Yet that is the word city officials have used to justify their decision earlier this year to turn this neighborhood and the rest of Bayview–Hunters Point into the biggest redevelopment area in city history over the strident objections of Harrison and others.
Redevelopment is a process that collects annual property tax increases into a fund that the San Francisco Redevelopment Agency uses to subsidize favored development projects, usually working with big developers and often bundling properties together for them to use, seizing the land by eminent domain if need be.
“The Redevelopment Agency is like a monster,” Dr. Ahimsa Porter Sumchai, a physician who covers the environment for the Bay View, told the Guardian while sitting in Harrison’s house.
For Harrison and others who moved to this neighborhood after being forced out of the Fillmore by another redevelopment effort that began in the ’60s, redevelopment means one thing: displacement of existing residents, or “repeopling,” a disturbing term that Harrison said she found in some Redevelopment Agency literature. They see it as simply a land grab by greedy developers working in cahoots with Mayor Gavin Newsom and the political establishment.
“Yeah, we’d like to see our community built up and look nice. But does that mean I don’t get to live here?” said Harrison, who, like many Bayview residents, owns her home but struggles to get by: she works, and her husband has two jobs, but they still live month to month.
It is that fear that caused Harrison to support Prop. 90 even after editors at the Guardian and other progressive voices tried to convince her that the state measure’s damaging aspects far outweigh its protections against eminent domain.
While Harrison admitted, “I see some things in Prop. 90 that scare the shit out of me,” she said, “desperation has set in.
“They’ve taken all hope. I see that I have to protect my community. Somebody has to remove the fear…. In this community, [Prop. 90 is] a hope and a chance.”
Where Maxwell and city leaders who favor redevelopment see progress, Harrison and others see an insidious conspiracy to take control of Bayview away from the people who live there.
And the narrative that city government is out to get Bayview has recently been reinforced by other actions: Newsom’s announcement that he wants to use Bayview–Hunters Point as a staging ground for the 2016 Olympics; expanded plans for upscale housing development around Candlestick Park; City Attorney Dennis Herrera’s rejection of a seemingly successful referendum drive challenging the Bayview Hunters Point Redevelopment Plan and the refusal of the Board of Supervisors to allow a vote on the matter; city staffers issuing regular citations to Bayview property owners to make improvements or risk fines; the Housing Authority’s failure to properly maintain the projects it manages; Herrera’s decision this month to seek civil injunctions preventing the free association of purported members of the Oakdale Mob; and the Redevelopment Agency’s Oct. 17 decision to let Lennar Corp. out of its pledge to build rental units on Parcel A of the former Hunters Point Naval Shipyard.
Add it all up, and it becomes understandable why many Bayview residents buy into the vision that Bay View publisher Willie Ratcliff has repeatedly put on the front page of his newspaper: “the bulldozers are at our borders,” just waiting to turn Bayview into one more white yuppie enclave and make a handful of politically connected developers rich in the process.
Officials strenuously deny this is true, arguing that this redevelopment project is all about helping the area by building more affordable housing, infrastructure, and open space and noting how the plan strictly forbids the seizure of residential property by eminent domain.
“The agency has that historical baggage, but we haven’t done anything like that in many years,” Marcia Rosen, director of the Redevelopment Agency, told us.
That hasn’t allayed fears in Bayview or among its allies outside the community, most notably Brian Murphy O’Flynn, whose North Beach property was seized by the city in 2003 to be turned into a park.
“I thought, ‘These people are getting steamrolled,’” O’Flynn told us. “The people there are going to be displaced…. It comes down to money. [Powerful people] want that neighborhood. It’s right on the water, and it’s going to make some people rich.”
Nonetheless, O’Flynn has concerns about the other impacts of Prop. 90, so much so that he has parted ways with his Bayview allies on the measure and refused requests by Prop. 90 advocates to join the campaign.
“I have no position on 90,” O’Flynn said. “But I understand how it came about.” SFBG

PG&E’s extreme makeover

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› steve@sfbg.com
Mayor Gavin Newsom called a meeting with Pacific Gas and Electric Co. president Thomas King in July to let the utility chief know that the city intended to pursue public power projects on Treasure Island and Hunters Point.
“It was just to tell him that we’re going to do it,” Newsom spokesperson Peter Ragone said of the meeting. “The mayor thought it was a gentlemanly thing to do.”
King used the occasion to start an aggressive new offensive — and to preview PG&E’s latest political strategy.
In an Aug. 10 letter to Newsom, King promised not to fight the city’s plans in court and pledged to develop a better relationship with the city.
“We know that it was in this spirit of cooperation that you approached us last month, and we want to foster this spirit and forge an even stronger partnership in efforts to protect our environment in the years ahead. That’s why I wanted to respond to your questions and suggestions — and to share with you some ideas of my own,” King wrote, listing one of those ideas as helping the city develop energy from tidal power at the mouth of the bay, which Newsom had recently announced a desire to pursue.
The day after PG&E wrote the letter, Newsom and San Francisco Public Utilities Commission (SFPUC) head Susan Leal announced the city’s intention to supply public power, mostly from clean solar and hydroelectric sources, to the redevelopment project on Parcel A of the former Hunters Point Naval Shipyard, where the politically connected Lennar Corp. (which is also part of the team with the rights to build on Treasure Island) has the contract to build 1,600 new homes.
“What we want to provide is a green community at a rate that meets or beats PG&E,” Leal told the Guardian, noting the history of environmental injustices that have been heaped on the southeast part of town. “We’re very excited about what’s going on at Hunters Point. . . . It’s important that the city do the right thing for that community.”
And just as PG&E was pledging cooperation, it aggressively set out to undermine the city’s plans with competing bids and continued its fiercely adversarial posture in another half-dozen realms in which it must work with the city, battles that have cost San Franciscans millions of dollars.
“This is a competitive world and this is fair game, don’t you think?” PG&E spokesperson Darlene Chiu — who used to be Newsom’s deputy press secretary — told us of company efforts to subvert the public power projects.
Last month PG&E also hired away SFPUC commission secretary Mary Jung, who had been privy to closed-session discussions about various city strategies for dealing with PG&E. Jung, who did not return a call for comment, was required to sign a confidentiality agreement and threatened with criminal charges if she spills city secrets, although city officials acknowledge that would be difficult to prove.
PG&E has also launched a high-profile public relations offensive designed to repackage the utility as a clean and green crusader against global warming and a supporter of community programs such as the mayor’s pet project, SF Connect, to which it contributed $25,000 last month.
“The company has a long and continuing history of fighting against the city rather than working with the city on issues involving municipal power, improved reliability, connecting city facilities, and protecting ratepayers,” Matt Dorsey, a spokesperson for City Attorney Dennis Herrera, told us. “If PG&E wants to demonstrate its good corporate citizenship, it can start by changing the nature of its relationship with the city.”
BIG BUCKS
If anyone from the Bay Area needs a reminder about the big money, bare-knuckle approach PG&E uses when its interests are threatened, they need only look up the road to what’s happening in Sacramento and Yolo counties.
PG&E has so far spent more than $10 million fighting Propositions H and I in Yolo County and Measure L in Sacramento County, which together would allow the Sacramento Municipal Utility District (SMUD) to annex more than 70,000 customers in Davis and surrounding communities.
The PG&E effort has saturated mailboxes and the airwaves with messages that inflate the cost of taking over its transmission lines, imply threats of a drawn-out legal battle, and make bold claims of its being an environmentally friendly utility (for example, including nuclear power in its calculations of how “green” PG&E is).
“They’re trying to spread fear and confusion,” Davis-based public power advocate Dan Berman told us. “A new thing comes out every day. But we keep citing the message of lower rates and better service.”
In fact, SMUD has rates that are about 30 percent lower than PG&E’s and a power portfolio that includes significantly more energy from renewable sources than PG&E uses. Even King’s claim that PG&E is “the leading solar utility in the county, having hooked up more than 12,000 solar-generating customers” is misleading. The number is large because PG&E has the largest customer base in the country, but the solar rebates were state mandated and SMUD inspired and come from ratepayer surcharges.
Still, PG&E justifies its aggressive campaign in Yolo County in terms of warding off a hostile takeover of its customers. For residents there and new customers in San Francisco that the SFPUC wants to serve, PG&E’s Chiu repeats the mantra that “we have an obligation to provide services.”
Yet critics of the company say the campaign is about more than just holding on to those customers. Right now more than a dozen California communities are pushing for public power, most involving community choice aggregation (CCA) — which allows cities to buy power on behalf of citizens, potentially bypassing PG&E.
“That’s one of the reasons they’re pulling out all the stops in Davis, because if this goes through, it will embolden other communities,” Barbara George of Women’s Energy Matters told us.
San Francisco was an early city to pursue CCA, but plans to implement it have moved slowly, and now other communities — including Marin County and the cities of Oakland and Berkeley — are even further along.
“San Francisco is way behind in community choice,” George said. “The mayor is giving PG&E a lot of time to put out its claims to be green in order to fight this.”
Part of that push involves a slick 16-page mailer sent out in August by “The New PG&E” outlining “a proposal for an unprecedented and far-reaching partnership with the city of San Francisco to create the cleanest and greenest city in the nation.”
Sup. Ross Mirkarimi — a longtime public power advocate — is skeptical. “I welcome it, but I don’t buy it,” he said. “Their desire to work with us is typically predicated on the receding of our efforts to pursue public power.”
In fact, King seemed to say as much in his letter to Newsom when he wrote, “We see the investment of time, money and political capital in the public power fight as a distraction from the real need — providing clean, reliable and safe power to San Francisco.”
Chiu denied that there is a quid pro quo here, saying, “It is our intent to help San Francisco become clean and green, whether or not it comes with the city’s blessing.”
Yet Leal said the company seems more interested in stopping public power than going green. Rather than trying to undermine the city’s plans for the area, she questioned, “Why don’t they have the rest of Hunters Point, which are already their customers, be a green community?”
COMPETING WITH PG&E
Lennar is expected to announce in the next week or two whether it will go with public power or PG&E at Hunters Point. “No final decision has been made at this point,” Lennar spokesperson Jason Barnett told us.
Yet it didn’t have to be this way. Lennar’s redevelopment project is being subsidized with public funds that could have been conditioned on public power. Even as late as Oct. 17, when the San Francisco Redevelopment Board agreed to change Lennar’s contract to let the company out of building rental units, public power could have been part of the trade-off. Agency chief Marcia Rosen did not return Guardian calls asking why the public agency didn’t take advantage of this leverage.
For her part, Leal said, “I’m not afraid of competition.” It was a point echoed by Ragone, who said Newsom believes the city shouldn’t be afraid to compete with PG&E on Hunters Point or Treasure Island or to stop a PG&E bid to help develop clean tidal power.
But Mirkarimi doesn’t necessary agree. “Why do they have that right?” he asked, arguing the city shouldn’t let PG&E take control of new energy resources or customers who should be served by public power. “The tentacles of PG&E haven’t receded any less at City Hall and we should always be on our guard.”
Leal and Ragone each acknowledged that competing with PG&E isn’t always a fair fight. After all, in addition to having the resources of nearly 10 million customers paying some of the highest rates in the country, PG&E is also alleged in a lawsuit by the city to have absconded with $4.6 billion in ratepayer money during its 2002 bankruptcy, in what Herrera called “an elaborate corporate shell game.” On Oct. 2, the US Supreme Court denied review of a Ninth Circuit Court of Appeal ruling favoring the city, sending the case back to the trial court to determine just how much PG&E owes ratepayers.
That is just one of several ongoing legal actions between the city and PG&E, including conflicts over the city’s right to power municipal buildings, PG&E’s hindrance of city efforts to create more solar sites, and battles over the interconnection agreement that sets various charges that the city must pay to use PG&E lines.
MONEY IN ACTION
A good example of PG&E tactics occurred during the July 26 meeting of the Metropolitan Transportation Commission, which is overseeing work on the Bay Bridge. As part of that work, a power cable going to Treasure Island needed to be moved, but the Treasure Island Development Authority didn’t have the $3.4 million to do it.
So PG&E executive Kevin Dasso showed up at the MTC meeting with a check made out for that amount, offering to pay for the new cable and thus control the power line through which the SFPUC intends to provide public power to the 10,000 residents who will ultimately live on the island.
“This deal with Treasure Island was really egregious. They came in like a game show host and held up a check to try to stop this baby step toward public power on Treasure Island,” said Sup. Tom Ammiano, who also sits on the MTC board. “It shows PG&E is not asleep at the wheel by any means, and anybody who’s elected is going to need to stay vigilant.”
Ammiano was able to persuade the MTC to loan TIDA the money and preserve the city’s public power option. PG&E officials are blunt about their intentions. Chiu said, “We both want to provide power to Treasure Island.” So officials note the importance of being vigilant when it comes to PG&E.
“There will be other meetings where PG&E will wave around $3.4 million checks,” Leal said. “And at some of those meetings, we won’t be there to stop them.”
So public power advocates are concerned that public officials are letting PG&E rehabilitate its public image. Newsom has recently shared the stage with PG&E executives at a green building conference in San Francisco and the Treasure Island ceremony where Gov. Arnold Schwarzenegger signed the landmark global warming measure that PG&E long opposed before ultimately supporting. Ragone said neither these events nor PG&E’s contribution to SF Connect nor his direct dealings with King indicate any softening of Newsom’s support for public power.
“We’re going to do what’s in the best interests of the city of San Francisco,” Ragone said. “This is the first mayor to support public power, and that hasn’t changed at all.” SFBG
To see the letter from King to Newsom and other documents related to this story, go to www.sfbg.com.

Same-sex marriage: On to the Supreme Court

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EDITORIAL It’s hard to take the California Courts of Appeal decision on same-sex marriage seriously. It reads like some sort of joke, the product of a bad old mind-set that this country put behind it almost 40 years ago when the US Supreme Court struck down bans on interracial marriage. It’s worse though: the court, by a 2–1 decision, seems to imply that gay and lesbian people don’t have the same fundamental legal rights as everyone else, that discrimination against them doesn’t need to be viewed with strict legal scrutiny.
Hiding behind the absurd notion that the court would be usurping the role of the legislature by finding that it’s unconstitutional to outlaw same-sex marriage, Justices William R. McGuiness and Joanne C. Parrilli overturned a landmark ruling by San Francisco Superior Court Judge Richard Kramer and set the stage for what has to be a full debate before the state Supreme Court.
On many, many levels, this is the defining civil rights issue of our era — and the state’s highest court must agree to take the case and overturn this embarrassingly misguided decision.
The court goes out of its way to try to sound sympathetic to gay and lesbian couples, acknowledging in its ruling that social standards are changing and that “gay and lesbian couples can — and do — form committed, lasting relationships that compare favorably with any traditional marriage.” But the two judges in the majority argue that the state legislature hasn’t legalized same-sex marriage, so there’s nothing the courts can do.
That, of course, is nonsense and flies in the face of centuries of American legal jurisprudence (and most recently, of the well-reasoned decision by Judge Kramer). The Virginia legislature had explicitly refused to legalize marriage between people of different races when the Loving case came before the US Supreme Court in 1967; the court ruled, quite properly, that the so-called antimiscegenation laws by their very nature deprived people of a fundamental constitutional right. The right to an abortion was never established by Congress; the Supreme Court ruled in 1973 that the constitutional right to privacy protected the right of a woman to terminate her pregnancy. The list goes on and on: when courts find that state and federal legislators have acted in a way that undermines basic legal rights, they often wind up enshrining in law rules that were never put to a majority vote.
Besides, let’s remember: the state legislature did take up this issue and passed a bill — which the governor vetoed, saying he was leaving the issue to the courts.
Justice J. Anthony Kline, the lone dissenting voice, put it very nicely: “To say that the inalienable right to marry the person of one’s choice is not a fundamental constitutional right, and may therefore be restricted by the state without a showing of compelling need, is a terrible backward step…. Ignoring the qualities attached to marriage by the Supreme Court, and defining it instead by who it excludes, demeans the institution of marriage and diminishes the humanity of the gay men and lesbians who wish to marry a loved one of their choice.”
San Francisco City Attorney Dennis Herrera will, of course, appeal this decision to the state Supreme Court, where everyone has assumed it was heading anyway. But there’s a danger here: the high court could duck the entire issue, more or less, by simply declining to hear the case and letting the appeals court decision stand. That would be a tragedy. Everyone involved on all sides agrees that this is a huge issue, both legally and politically, and two appellate judges on a sharply divided three-judge panel simply can’t be allowed to hold the last word.
We urge the Supreme Court to take the case. So should every Democratic (and decent-minded Republican) politician running for office this fall, starting with Jerry Brown, the leading candidate for attorney general.
The ultimate outcome of the debate over same-sex marriage isn’t in doubt. A few years from now — 5, 10, 15, 20 — the bigots will have lost their hold on politics and same-sex marriage will be as widely accepted as interracial marriage is today. California can either be a national leader in this progressive cause — or suffer the shame and embarrassment of being a state where the highest court enshrined unconscionable and indefensible discrimination into its constitution. SFBG
The appeals court decision and Justice Kline’s dissent can be viewed at www.courtinfo.ca.gov/opinions/documents/A110449.DOC.

Rallying point

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By Steven T. Jones
It’s good to be reminded sometimes that San Francisco is truly an oasis in a desert of fear and ignorance. Yesterday’s City Hall press conference on the terrible Court of Appeals ruling against same sex marriage was one of those moments, when we felt unified in our quest for justice and equality. Despite this disappointment on the way to the eventual California Supreme Court hearings, City Attorney Dennis Herrera said, “We are steadfast and couldn’t be prouder to be at the forefront of this battle.” And everyone felt it. Win or lose, we’re doing the right thing. “We’re making tremendous progress,” said Mayor Gavin Newsom, who didn’t mince words when describing the majority opinion that traditional marriage shouldn’t be updated by the courts: “They made a mistake.”
Both sounded notes of optimism. Said Newsom, “I’m confident we’re going to get there, but today was an emotional setback.” Yet Herrera noted that we need to be vigilant against the right wing forces that are trying to make judges fear doing what they must: “The threat to the independence of the judiciary by those screaming about judicial activism is a disgrace.”

Editor’s Notes

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› tredmond@sfbg.com
So much going on this week: the cops and the San Francisco Police Commission are heading for a battle over secrecy, the cops and the supervisors are headed for a battle over foot patrols — and Mayor Gavin Newsom is heading for a battle with homeless advocates over a new round of sweeps at Golden Gate Park. The mayor and the local gendarmes can’t win any of this without community support and would do far better to stop trying to fight these battles.
Then there’s redevelopment and the city attorney … and we might as well get started:
•The state Supreme Court ruled a couple of weeks ago that all police disciplinary records have to be kept secret. It’s an awful decision, and San Francisco needs to find a way around it if at all possible. Some police commissioners, starting with David Campos, want to do that, but City Attorney Dennis Herrera is interpreting the law very conservatively and not offering the commission a lot of options.
Why not make public all the charges against cops with the individual officers’ names redacted? At least the community would know that some cops are improperly shooting people, giving liquor to minors, beating up people of color, beating up their spouses … and at least we’d all have a way to demand some policy changes. Or why not tell bad cops facing disciplinary hearings that they can plea bargain for a lenient sentence — and waive their rights to privacy — or take their chance in a full commission trial, where they will face termination if they lose? Let’s think here, people: this is too important to just give up. San Franciscans aren’t going to accept a secret police state.
•The mayor and the police chief are still fighting against Sup. Ross Mirkarimi’s plan to put cops on foot in high-crime areas. That’s a loser, Mr. Mayor. Nobody thinks that your current plans are working.
•After visiting Central Park in New York City — which is run by and for a private group of rich people — Newsom has decided to clear all the homeless people out of Golden Gate Park. Let me offer a little reality here: people sleep in the park because they have no place else to go. You cut their welfare payments and let the price of housing skyrocket, this is what you get. Sweep them out and they won’t disappear: they’ll sleep on the streets in the Haight and the Sunset and the Richmond. There’s a great campaign issue.
Besides, Golden Gate Park, homeless and all, is generally a safe, pleasant place, with only minor crime problems. But kids are dying on the streets only a few hundred yards away in the Western Addition. We don’t have enough cops to walk the beat where they could save lives — but we have enough to roust the homeless?
•Herrera, who’s got his hands full of ugly messes this week, tossed a referendum on the Bayview Hunters Point Redevelopment Plan off the ballot because each of the petitions didn’t have the entire plan attached. For the record, the plan is 62 pages. If this is the standard — an entire plan has to be copied and printed with every single petition — then as a practical matter, nobody in California can ever do a referendum on a redevelopment project. I suspect that’s not what Hiram Johnson had mind. SFBG

Battle for Bayview

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› steve@sfbg.com
It’s been a week since City Attorney Dennis Herrera invalidated the seemingly successful referendum drive challenging the Bayview Hunters Point Redevelopment Plan, and everyone involved is still wondering what’s next.
Can the biggest redevelopment plan in city history just move forward as if more than 33,000 city residents hadn’t signed petitions asking to vote on it? Legally, that’s where the situation now stands. But even Herrera told the Guardian that the legal question he answered is separate from the policy and political questions.
Should the Board of Supervisors hold a hearing to discuss the controversial issues raised by redevelopment and this referendum? Should it consider repealing the plan and allowing a ballot vote, as some supervisors want?
And if each referendum petition must include a thick stack of all related documents, as Herrera’s opinion indicates, won’t that make it prohibitively expensive for a community group to ever challenge such a complex piece of legislation? Have the citizens in effect lost the constitutional right to force a referendum on a redevelopment plan?
“I can’t speak to what the practical effect will be. I can just tell you what the state of the law is,” Herrera told us, noting that referendum case law clearly indicates that the petitioners should have carried the 62-page redevelopment plan and all supporting documents, not simply the ordinance that approved it.
A “TERRIBLE” DECISION
Four supervisors — Chris Daly, Tom Ammiano, Gerardo Sandoval, and Ross Mirkarimi — voted against the plan in May. All have expressed concern about Herrera’s decision, but none have yet called for a hearing.
“Whether you agree or disagree with this opinion on the validity of the redevelopment referendum, it raises some grave concerns that this process — a democratic, grassroots process — was overturned,” Mirkarimi told us. Daly called the decision “terrible.”
Yet given that they need the support of at least two more supervisors to reconsider the plan, Mirkarimi conceded that the next step will probably have to come from a lawsuit by the petitioners, a move referendum coalition leaders Willie Ratcliff and Brian O’Flynn say they intend to pursue if political pressure fails.
“It’s unclear what the next steps are to dislodge this from the legal shackles that knocked it down,” Mirkarimi said. “Something doesn’t smell right, and it’s difficult to trace the odor completely without the courts getting involved.”
But Ratcliff hasn’t given up on forcing a political solution, which he is pushing through his coalition and the San Francisco Bay View newspaper he publishes. The paper last week ran a story on the decision under the hyperbolic headline “City Hall declares war on Bayview Hunters Point.”
“We’re talking to lawyers, but to us the last resort is going to court. We feel we can pull it off politically,” Ratcliff told us. “What this did really was unite this community. If the city will pull this kind of thing, how are we going to have any faith in this plan? We’re going to flex our power…. People are ready to fight now.”
One gauge of Ratcliff’s support in the community will come on the afternoon of Sept. 27, when he will lead a march and rally on the issue. The event is tied to the 40th anniversary of the so-called Hunters Point Uprising, when a teenager was shot by police and the resulting community backlash was violently quelled using National Guard tanks and police sharpshooters.
“With the 40th anniversary of the Hunters Point Uprising of Sept. 27, 1966, only days away, this sounds like a declaration of war against the same people who protested then and are protesting still against police brutality and for jobs, economic equity and the right to develop our own community and control our own destiny,” Ratcliff wrote in a front page editorial.
Ratcliff told us, “We’re going to have a big march out there to show the city that we oppose this plan.”
THE PLAN IS IN EFFECT
Herrera’s opinion on the referendum was requested by Mayor Gavin Newsom, the San Francisco Redevelopment Agency, Board of Supervisors president Aaron Peskin, and Sup. Sophie Maxwell.
Redevelopment Agency director Marcia Rosen told the Guardian that fears of redevelopment stem from how badly it was handled in the Western Addition in the 1960s, but that the agency and the political climate of the city have changed. She said the agency is approaching Bayview–Hunters Point in an incremental, community-based fashion. She said the plan should go forward and will eventually prove the fears are unfounded.
“The plan was adopted by the board and signed into law by the mayor, and there is no further action needed, so the plan is in effect,” she told us.
Maxwell and Peskin each said they’re inclined to just let the redevelopment plan go into effect, although Peskin said, “I’m not going to stop any supervisor from having a hearing on any subject.”
“It’s important to understand that this plan is a living document, so there will be changes and people talking to each other,” Maxwell told us. “It’s certainly not the end of anything.”
She told the Guardian that the referendum campaign used paid signature gatherers, money from a developer from outside the area, and distorted claims about eminent domain and other aspects of the plan — misrepresentations that signers could have checked if the plan was readily available as legally required.
“The democratic process has to be taken seriously, and democracy is not easy,” Maxwell told us. “The decision was about preserving the democratic process, and people need to have facts at their disposal. There has to be a process and there has to be a standard.”
That’s certainly true — and O’Flynn is a contractor who lives in the Marina. But it’s hard to imagine how carrying around thick stacks of paper filled with complex land-use plans would have made a difference. Most signers would never have stopped to take several hours to read it all.
John Matsusaka, president of the Initiative and Referendum Institute at the University of Southern California School of Law, said that referendum case law has been built around a few courts validating actions by civic officials to strike down citizen movements.
“The sad fact is it looked like elected officials are trying to keep measures off the ballot and looking for ways to support that,” Matsusaka told the Guardian. “Preventing the people from voting is really not going to bring harmony to the community.” SFBG
The Defend Bayview Hunters Point Coalition’s Sept. 27 march begins at 3:30 p.m. at the Walgreens at 5800 Third St. and Williams and continues up Third Street to Palou Street, where there will be a press conference and rally at 4:30 p.m.

Casting off

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› amanda@sfbg.com
Hornblower Yachts assumed control of the ferry service to Alcatraz Island on Sept. 25. As the new crew cast off the dock lines, spurned union workers — some 30-year veterans with the former contractor, Blue and Gold — rallied with supporters at the entrance, asking passengers not to board the boats.
Two union-friendly visitors from Sydney, Australia, ripped up their tickets and demanded refunds. “We don’t agree with what they’re doing to the workers,” one said, while in the background Supervisors Aaron Peskin and Tom Ammiano took turns with the bullhorn, also offering their support to the workers.
“All of our colleagues on the board are not going to stand for it,” Peskin said to the couple hundred laborers gathered on the sidewalk. “We’re going to stand with you and march with you.”
Terry MacRae, CEO of Hornblower, expressed little concern about the boycotting tourists and the rally at his gate. “I suspect there’s plenty more people who want the tickets if they’re not going to use them,” he told the Guardian. Visits to Alcatraz peak this time of year, with a couple thousand people turned away every day when tickets sell out, according to National Park Service spokesperson Rich Wiedeman.
The NPS decision to grant the lucrative, 10-year contract to Hornblower over Blue and Gold has resulted in more than just what some are calling the largest union layoff in San Francisco waterfront history. The story also has an environmental angle as slick as an oil spill and a nasty landlord-tenant tussle.
“The port and I are extremely concerned with how Hornblower has conducted itself,” City Attorney Dennis Herrera told the Guardian, referring to the company’s artful dodge of city and state permitting processes. “They’ve focused more energy on sidestepping public oversight than complying with it.”
Despite infuriating two leading San Francisco institutions — unions and city planners — MacRae has managed thus far to avoid too much of a stir by keeping another critical local constituency off his back with a well-played “green” card.
THE GREEN MACHINE
When NPS put out a request for proposals in 2004, three companies submitted bids for Alcatraz: Red and White, a local charter and bay cruise company that ran the service when it first started in the ’70s; Blue and Gold, which took over Red and White’s boats and unionized crew in 1994; and Hornblower Cruises and Events, which runs charter and dinner boat cruises from five California ports and is a subsidiary of a larger, $30 million company.
When Brian O’Neill, superintendent of the Golden Gate National Recreation Area, announced last year that Hornblower won the bid, union activists immediately challenged the choice. Mayor Gavin Newsom, Peskin, Rep. Nancy Pelosi, and both of California’s US senators expressed concerns about the decision. Neighborhood group Citizens to Save the Waterfront filed suit. Environmentalists, however, were elated.
For the first time since being passed by Congress in 1998, the Concessions Management Act applied to the bid for Alcatraz. In addition to forbidding the Department of the Interior from favoring incumbent contractors, the act also outlined new criteria for awarding contracts that included a mandate to improve environmental quality in national parklands.
“Bluewater Network has been advocating for more than five years for a solar- and wind-powered ferry for San Francisco Bay,” said Teri Schore, a spokesperson for the local environmental group. She added that diesel vessels in the Bay Area account for more pollution than cars and buses combined. “We’ve been talking to every ferry operator on the bay, and we also knew that the Alcatraz contract was up. We thought it was the perfect application.”
Hornblower’s MacRae wrote a provision into his bid that within two years of taking over the Alcatraz service, the company would build and launch a ferry to run on a combination of solar, wind, and diesel power. After one year of testing the vessel, a second would be built within five years.
That — in combination with a plan to make two initial vessels 90 percent more fuel efficient, as well as implement a clean energy shuttle service on the Embarcadero, power the landing facilities with solar panels, purchase green products, and vend healthy snacks — put Hornblower’s bid over the top.
Wiedeman said all bidders are informed that financial feasibility of the company and potential revenue for the government, as well as environmental and sustainability initiatives, were considered. But some criteria were more weighted than others, and Hornblower ranked strongly on all points.
“We’re ecstatic,” Wiedeman said. “We’re looking at higher-quality visitor services from the get-go.”
But some doubt whether the proposed vessels are anywhere close to a reality. MacRae said a final design and marine contractor have not been selected yet, although Solar Sailor’s model BayTri has been touted. A giant solar-arrayed fin provides auxiliary wind and sun power to the trimaran’s diesel engines. No such vessel has ever been built, but the model is based on a smaller solar ferry that services Sydney Harbor in Australia — with a top speed of just seven knots.
The proposed boat is emissions free and could go 12 knots with the aid of the wind, although it would need a push from auxiliary diesel engines to keep up with Alcatraz’s schedule. Boats now run between 15 and 19 knots.
The other concern is that MacRae’s commitment of $5 million for constructing the 600-passenger vessel might not be enough. The San Francisco Water Transit Authority has been looking into a similar vessel carrying no more than 150 passengers that would cost between $6 and $8 million.
“Their requirements for design are different than what mine would be,” MacRae said. “I think it’s possible to do it for $5 million.”
Bluewater Network founder Russell Long worries that the low-budget cap could hurt the vessel’s environmental potential. “We believe that Hornblower may intend to maintain this budget ceiling even if it compromises other aspects of the design, such as best management practices in regard to environmental components,” he wrote in a letter to NPS, urging reconsideration of the contract.
NPS awarded the contract anyway and Bluewater is hoping for the best.
“We will be watchdogging the progress and keeping track of what’s going on. If it doesn’t happen, it will be a huge black eye for the National Park Service, Hornblower, and the city of San Francisco,” Schore said. “At this point we have faith that it’s going to get built, because it’s in the contract.”
However, Hornblower’s snub toward union contracts and dodgy relations with the city suggest that playing by the rules may not be a top priority for the company.
THE PERFECT TYPO
Since 1974, boats to Alcatraz have run from the Pier 39 area of Fisherman’s Wharf, where waiting ticket holders can indulge in the myriad distractions the tourist hub offers.
MacRae launched his new ferry service from Pier 31, half a mile farther south on the Embarcadero, where he currently leases space and operates a charter and dining cruise business.
Pier 31 is little more than a parking lot with a ramp and floating dock, which only sees about 100,000 people a year, far fewer than the 1.3 million annual passengers Alcatraz draws.
MacRae has attractive plans for a complete overhaul of the area, which would include landscaping and sheltered seating, a bookstore, and an informational center. Such alterations would require a thorough run through the city’s planning process, which MacRae told the NPS he won’t be doing until 12 to 18 months from now.
Instead, interim improvements to the lot were planned, which sparked concern from the city that the sudden increase in foot traffic wouldn’t be properly mitigated. That area of the Embarcadero also hosts 250,000 passengers a year from cruise ships docking at adjacent Pier 35. The Port spent close to $200,000 last year controlling that traffic with signage and police officers. The addition of thousands more visitors streaming down the sidewalks seeking passage to Alcatraz could cause gridlock every time a cruise ship docks.
Monique Moyer, executive director of the port, sent repeated letters over the last year to MacRae asking for clarifications about his plans and expressing concern that the change in use of Pier 31 required a review of existing permits.
She wasn’t alone. On July 31, Citizens to Save the Waterfront filed suit against Hornblower, claiming that the amount of activity at Pier 31 would increase twentyfold. “That represents a substantial change in the intensity of use,” Jon Golinger, a representative from the group, told us.
A change in the intensity of use of a waterfront property triggers the need for a complete environmental impact review (EIR) from the Bay Conservation and Development Commission (BCDC), a state agency with jurisdiction over anything within 100 feet of the shoreline. As many city developers know, EIRs can take many months to consider all potential changes to the existing landscape that the applicant would cause. Delays of that sort could have hindered MacRae’s ability to assume ferry service on the contracted date of Sept. 25.
MacRae said the litigation kept him from divulging to the city his proposed plans for upgrades to the pier.
Just days before the lawsuit was to be argued in San Francisco Superior Court on Sept. 6, BCDC executive director Will Travis sent a letter to Moyer stating that Hornblower’s new service and alterations to Pier 31 did not require any new permits.
He cited a typo from Hornblower’s current BCDC-issued permit as an allowance for the increase in passengers. The permit states that the pier may provide “access to the entire bay via vessel for 200,000 to 5000,000 [sic] people/year.”
He footnoted the quote: “There is clearly a typographical error in the 5000,000 number, which is intended to state the maximum anticipated usage of the dock … the correct number is probably either 500,000 or 5,000,000. While it seems reasonable to believe that the correct number is 500,000, the record contains nothing to substantiate this conclusion.”
Travis also relayed that Hornblower plans to use temporary measures that include trailers with port-a-potties, a portable ticket booth, and hollow traffic barriers for guiding traffic and pedestrians on and off the boat.
Herrera told us that this was the first Moyer had heard of what was planned for the lot and there was concern about how other services in the area and traffic on the Embarcadero would be affected, as well as if any structures, signage, and other enhancements would require additional permits. “It certainly would have been nice if they had shared all these plans so the port could conduct the proper environmental review that we all agree is in order,” he said.
In a strongly worded letter to Travis, Herrera wrote that to allow Hornblower to proceed without any environmental review could violate the California Environmental Quality Act (CEQA) and urged the BCDC to “issue an immediate cease and desist order” to prevent the start of service. Herrera also made the salient point that “the later the environmental review process begins, the more bureaucratic and financial momentum there is behind a proposed project, thus providing a strong incentive to ignore environmental concerns that could be dealt with more easily at an early stage of the project.”
On Sept. 7, BCDC commissioners met in closed session at the end of a four-hour meeting and voted to stand by Travis’s argument.
David Owen, a former Peskin aide who’s also a BCDC commissioner, was one of two abstentions to the otherwise unanimous vote. “It was really frustrating, because it seemed like Hornblower did everything in their power to avoid a permit review,” Owen told us. “Now what? We have a CEQA lawsuit and then the Board of Supervisors shuts down the Alcatraz ferry service? They’ve managed to start up service without acquiring a single permit. Kudos to them for strategy.”
Citizens to Save the Waterfront then dropped its lawsuit, feeling it was weakened by the BCDC decision.
“Essentially, now there’s a turf war between Bush’s park service and the Port of San Francisco,” Golinger said. “BCDC tried to avoid getting involved, but the precedent it sets is horrible. A corporation can come in and skirt any planning process.”
UNION TOWN POLITICS
After scoring the Alcatraz bid, Hornblower sought an exemption to the Service Contract Act of 1965 that would have required MacRae to pay equal to or more than what current crew make. But the Department of Labor ruled Sept. 21 against Hornblower. So veteran Blue and Gold crew have added safety to their concerns.
“I’ve made tens of thousands of landings on Alcatraz Island, and now they have captains who have never been there,” Capt. Andy Miller said. For 17 years, Miller has navigated the busy shipping lanes and the constant summer fog against the tugging tide and the sudden slams of inclement weather to bring tourists, park service staff, and supplies to the island.
“No one’s ever gotten hurt. It’s a very tricky place to land a boat. It takes skill and experience that you can’t just hire off the street,” he said.
Miller said he applied for a job with Hornblower but was not interviewed. So far, no captains and only three ticket agents and a deckhand have been hired from Blue and Gold’s former fleet.
“We have a ready workforce,” Master, Mate, and Pilot union spokesperson Veronica Sanchez said. “They’re going to have to be paid the same wages as union workers at Blue and Gold. They don’t want to be a union shop. Why don’t you want to be a union shop on a union waterfront like San Francisco?”
One reason could be concern that it might bump up costs for Hornblower’s other tour operations. “They want us to agree that if we sign up our workers for Alcatraz, that we won’t organize the dining yachts,” Sanchez said. In 1998, the union attempted to organize Hornblower’s dinner cruise operations in San Francisco but didn’t prevail in a supervised election.
MacRae said he’s not opposed to the unions and he’s encouraged the Blue and Gold staff to apply for jobs. “The unionization is the choice of the workers,” he said. “We try to let the employees make the choices. Last time I checked, that’s who the unions represent.”
“We want to make sure we have the best crew,” he said. “Many of the products and guest services we provide aren’t what Blue and Gold do now.” He added that some current employees from the dining cruises have also been shifted to the Alcatraz route.
“I’ve been here 21 years, and we’ve been replaced by busboys and waiters,” said deckhand Robert Estrada, standing with fellow workers outside the gate of the new Alcatraz ferry service.
Estrada said Hornblower’s reliance on part-time, low-wage workers has earned the company the nickname “the Wal-Mart of the Water.” The company’s rapid expansion, from a two-boat Berkeley-based charter to a multinational fleet with government contracts is a similar characteristic.
Blue and Gold spokesperson Alicia Vargas assured us that the remaining ferry services to Alameda, Angel Island, Oakland, Sausalito, Tiburon, and Vallejo will be solvent, but some of the veteran crew who haven’t been laid off yet are worried this is the beginning of the end.
“The public needs to be warned. If funds don’t come from Alcatraz, Blue and Gold could fold,” said David Heran, an International Boatmen’s Union member and deckhand since 1974 who applied to Hornblower but wasn’t hired. “I’m not ready to retire yet, and this wasn’t the way I was expecting it to happen.” SFBG

City attorney and the cops

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By Tim Redmond

City Attorney Dennis Herrera released his official opinion on how the Police Commisison has to respond the the utterly horrible California Supreme Court decision on secrecy in police discipline cases. I’m not happy.

I realize that the Supreme Court has spoken on this, and that the city attorney of San Francisco can’t just openly defy the Supremes. But there are some (small) openings in the ruling; among other things, it specifies that records in police discipline cases have to be closed, but pointedly does not address the issue of open hearings. Herrera’s opinion pretty much says there’s not a damn thing the Police Commission can do other than shut down all public access to information about cops who have behaved badly. I like and respect Herrera, but I have to side with Poice Commission vice president David Campos, who told me this afternoon that “if there’s even a small opening, we should try to pursue it.”

Will Herrera fight the cops?

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By Tim Redmond

The Police Commission held a long, long closed session tonight, and I’m sure they were discussing the big issue of the day — the California Supreme Court decision that the cops insist makes all cases of discipline against peace officers totally secret.

I have no idea how the behind-closed-doors discussion went — but I do know that Commission vice-president David Campos, who is acting as a courageous champion of public access here, told me several days ago that he was going to push his colleagues not to bow down to the police lobby. He wants to keep disciplinary hearings open, to the greatest extent possible. But that will require some courage from CIty Attorney Dennis Herrera, too — the kind of courage Herrera showed in backing the city’s decision to issue same-sex marriage licenses, in defiance of the established legal authorities. There’s a way to do the same thing here — to say that San Francisco will not simply give up on public scrutiny of police misconduct: Keep the hearings open, and force the cops to sue. Then fight them all the way, and try to make better law.

Dennis?

A vote on Oak to Ninth

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In just 30 days, the Oak to Ninth Referendum Committee collected the signatures of 25,068 Oakland residents who want a chance to vote on a massive development project that would bring 31,000 new homes to the Oakland waterfront. But the matter may never be on the ballot: on Sept. 6, Oakland City Attorney John Russo directed the city clerk to invalidate the petition because it didn’t conform to the requirements of state election law.
It’s likely that from a legal standpoint Russo’s determination is correct. Nevertheless, the decision exposes flaws in California’s election system that the state legislature should fix. In the shorter term, the Oakland City Council ought to recognize that there’s strong public sentiment for a referendum on the project and put Oak to Ninth before the voters.
It’s tough to force a referendum vote on an act of local government: you need to gather a significant number of signatures within 30 days of the passage of the bill — and there are no second chances. If the petition doesn’t meet every possible legal standard — and the standards are high, the rules complex — then the referendum is dead forever.
Erica Harrold, communications director for Russo’s office, told us she sympathized with the plight of Oak to Ninth foes and acknowledged that the current rules applying to referendum petitions are “draconian.” Russo, she said, is seeking reforms to the current system, including establishment of a new rule that would not start the 30-day period until the city provides a certified final version of an ordinance to petition sponsors. That was a key issue in this conflict: the Oak to Ninth Referendum Committee apparently had to rush to gather signatures to meet the deadline and for various reasons did not submit the version of the ordinance that Russo and the City Council consider the final draft (additionally, the committee did not include certain attachments to the ordinance that the City Attorney’s Office says were required).
The legislature should follow Russo’s suggestion and change the deadlines. It should also consider allowing petition sponsors to cure unintentional defects in their petitions.
State legislative reform can’t come quickly enough to remedy the current situation involving the Oak to Ninth petition. But the City Council can still act: it’s well within the authority of local officials to simply acknowledge the public interest in (and demand for) a citywide vote on a project that will change Oakland forever — and place the entire matter on next June’s ballot.
There’s no rush to break ground here — in fact, we’ve long argued that the project shouldn’t have final approval until the incoming mayor, Ron Dellums (who has expressed real concerns with the deal), takes office. Legal technicalities aside, the bottom line is simple: Oakland residents deserve a chance to be heard on Oak to Ninth. SFBG
PS Stop the presses: on Sept. 19, San Francisco City Attorney Dennis Herrera ruled that petitions demanding a vote on the redevelopment plan for Bayview–Hunters Point were invalid — on a legal technicality similar to the one that undermined the Oakland petitions. Again, Herrera may well be legally correct (and we’re under no illusions here — the referendum was financed in part by a private housing developer) — but when in doubt, the desire of the voters to weigh in on an issue should be paramount. The supervisors should determine whether it’s possible to put this plan on the ballot anyway.

Referendum struck down

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By Steven T. Jones
San Francisco City Attorney Dennis Herrera has invalidated the referendum that challenged the Bayview Hunter’s Point Redevelopment Plan, ruling that it didn’t include all the documents that the more than 33,000 people who signed it needed to make an informed decision.
“They didn’t have the redevelopment plan itself for voters to evaluate,” Herrera spokesperson Matt Dorsey told the Guardian just after the decision was released Sept. 19.
But Willie Ratcliff, the Bayview Newspaper publisher who helped funded and coordinate the referendum drive, told the Guardian that they carefully consulted with both city officials and their attorneys to ensure the documents complied with state law.
“We expected the city would try to look for a way out and of course we’re going to fight them in court,” Ratcliff said.
The Elections Department had ruled Sept. 13 that the referendum had enough valid signatures to stop the plan. The Board of Supervisors then had the option of repealing it or submitting it to a popular vote. But board clerk Gloria Young is now required by law to invalidate the referendum and only a judge can now make it valid.
The board, which approved the plan on a 7-<\d>4 vote in May (with supervisors Tom Ammiano, Chris Daly, Ross Mirkarimi, and Gerardo Sandoval in dissent), could still act independently to repeal the plan and submit it to a vote, as recall campaign coordinator Brian O’Flynn is urging. “The will of the voters should be respected,” he told us
The plan would put about 1,500 acres in Bayview-<\d>Hunters Point under San Francisco Redevelopment Agency control, set new development standards, and collect all property tax increases into a fund that would go toward projects in the community. Opponents fear the plan would displace current residents and gentrify the area.

More soon

Public power returns

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EDITORIAL Just when it looked like the public power movement had stalled, along comes the San Francisco Public Utilities Commission with a surprise announcement that it will create a public power demonstration project in the most appropriate part of town and reinvigorate efforts to kick Pacific Gas and Electric out of the city.
The agency has tentatively cut a deal to provide power directly to the 1,600 housing units and businesses that Lennar Homes is about to start building on Parcel A of the Hunters Point Naval Shipyard — bringing clean, green (it comes from city hydroelectric and solar projects), affordable public power to a part of town that has long been besieged with environmental injustices.
We commend director Susan Leal and the rest of the SFPUC for this project and their promise to do the same thing on Treasure Island, once that property is officially in San Francisco’s jurisdiction. SFPUC officials say they’ll be able to beat PG&E’s rates while delivering power that is more environmentally sustainable than what we’re getting from the company’s aging fossil fuel plants.
The agency is now finalizing details with Lennar and waiting for PG&E to sign an interconnection agreement to transfer city power to the site, something that federal law requires the company do for a “reasonable” fee. If all goes well, the contract will go to the Board of Supervisors for approval in a couple months, creating the first living example of how the city would be better off without PG&E.
As such, we fully expect the company to try to sabotage the deal, so we urge all city officials to help shepherd this one to completion. Mayor Gavin Newsom should help make sure Lennar doesn’t get cold feet, City Attorney Dennis Herrera should be ready to fight if need be, and the SFPUC should be on the lookout for more such projects. Good work! SFBG

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