City Attorney Dennis Herrera

Newsom, it’s time to end the Sunshine wars

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EDITORIAL For months now, Mayor Gavin Newsom’s press office has been fighting with Sup. Chris Daly over a series of internal memos that Daly claims ought to be public record. The memos involve the mayor’s position on tenant legislation that would make some kinds of evictions more difficult.
Daly had to take the case to the Sunshine Ordinance Task Force, which held a hearing and deliberated for more than an hour before finding the Mayor’s Office in violation of the law. And still, Daly — an elected official — couldn’t get a copy of the memos.
Then on July 29, Guardian reporter Amanda Witherell confronted Newsom outside a town hall meeting in the Richmond District. The mayor said he wasn’t even aware of the details of the battle — then promptly ordered his press office to release the records (see “Sunburned,” page 15).
Good for Newsom — but why did it take this long? Why did Daly, the Sunshine Ordinance Task Force, and no doubt the City Attorney’s Office have to spend so much time on a fight that clearly made no sense?
Unfortunately, this is symptomatic of how the Mayor’s Office — and so many other city agencies — is handling public-records requests: it’s a struggle for anyone to get anything.
A handful of aggressive, single-minded activists like Kimo Crossman, who is trying to get records on the city’s wi-fi negotiations, have been driving the Mayor’s Office and City Attorney Dennis Herrera crazy with reams of document requests. Why? Because they’ve asked for some simple, basic stuff — and have been refused. Thousands of hours of city time have been wasted fighting battles that don’t need to be fought.
Newsom can put an end to a lot of this pretty quickly. He should announce that he’s told the press office to comply immediately with every public-records request unless there is a clear, serious reason to withhold the information — and he should make it clear that he wants to be personally informed any time a request is denied so that he can make the final determination.
Newsom should also direct every city department under his jurisdiction to follow the same policies and support reforms in the Sunshine Ordinance to end all of these delays. SFBG

Downtown’s “Hail Mary” lawsuit

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EDITORIAL This one is way over the top: The San Francisco Chamber of Commerce and the Committee on Jobs filed suit last week against the San Francisco Board of Supervisors, alleging that the supes won’t implement Proposition I, the 2004 ballot measure that was aimed at derailing progressive legislation. The suit makes little legal sense: The downtown crew is demanding that the city do something that it’s already doing, for the most part. But it shows an aggressive new strategy on the part of Mayor Gavin Newsom’s allies, who are out to scuttle three important bills that will probably win board approval.

Prop. I was designed to do two things: Delay anything that downtown might consider "antibusiness" and promote the political fortunes of Michela Alioto-Pier, who authored the ballot measure. The idea: Create an Office of Economic Analysis, under the city controller, with the responsibility to do an "economic impact analysis" of any legislation that comes before the board. Of course, that economic impact analysis will by definition be fairly narrowly focused; it won’t consider the social impacts or consequences of decisions.

That was always the flaw in Prop. I, and that was the reason we opposed the measure. Economic impact studies that show only how much a proposal would cost or how it might harm the "business climate" ignore the fact that a lot of government regulation improves things that aren’t quantifiable. And even when they can be measured, certain effects are ignored: Clean air has a tremendous value but typical studies of antipollution measures focus only on the costs of compliance. Safe streets, nice parks, and good schools are worth a fortune but a study that examines the tax burden required to pay for them won’t account for that.

Downtown spent a fortune promoting the measure (and sending out colorful flyers with Alioto-Pier’s face on them, which didn’t hurt her reelection efforts). It narrowly passed but since Alioto-Pier never put in a request for the additional money the plan would cost, it took an entire city budget cycle to fund and hire the two staff economists who will do the work.

Now, for better or for worse, they’re on board, and the analyses are beginning but downtown isn’t satisfied. Chamber spokesperson Carol Piasente told us the group wants to eliminate any board discretion in deciding what needs analysis and what doesn’t; right now, the board president can waive the analysis on relatively trivial things like resolutions and appointments.

But what’s really going on, according to Sup. Chris Daly, is that downtown is gearing up for a full-scale attack on three bills: Sup. Tom Ammiano’s proposal to require employers to pay for health care; Sup. Sophie Maxwell’s plan to better enforce the minimum wage laws; and Daly’s proposal to require additional affordable housing in all market-rate developments. "Downtown’s hail mary pass involves using the economic analysis to kill these socially critical proposals," Daly wrote in his blog.

Oh, and while the chamber is always worried about city spending, the group’s lawyer, Jim Sutton, is asking for attorney’s fees (likely to be a big, fat chunk of taxpayer change) if the suit prevails.

This is ridiculous. City Attorney Dennis Herrera needs to defend this aggressively, but that’s only the legal side. The mayor, who has become ever more closely allied with these downtown forces (see page 11), ought to join the supervisors in publicly denouncing the suit. SFBG

Next: Shut down Mirant

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EDITORIAL It’s taken years, even decades of fighting, but the noxious, deadly Hunters Point power plant finally shut down this month. After a string of lies and broken promises, Pacific Gas and Electric Co. bowed to community pressure and pulled the switch May 15, stopping the flow of asthma-causing pollution from the ancient smokestacks and immediately offering cleaner air to a neighborhood that has been plagued by respiratory illness.

It was huge victory for groups like Greenaction, which has been pushing for a shutdown, and community leaders like Marie Harrison, who helped keep the plant on the political agenda. The deal they finally forced on PG&E: The company had to agree that as soon as state regulators agreed that San Francisco had adequate electricity sources without the plant, it would be closed.

And now it’s time to use the momentum to go after the other pollution-spewing power plant in the southeast Mirant Corp.’s Bayside behemoth. The Mirant plant not only spews pollution into the air, but it also causes extensive environmental damage to the bay. According to Communities for a Better Environment, the Mirant plant uses 226 million gallons of bay water every day for cooling. The water is sucked in, circulated to cool the turbines, and then discharged. The process stirs up sediments at the bottom of the bay that are laced with toxic mercury, dioxin, copper, and PCBs and then those sediments are drawn into the plant, whirled around, heated up, and sent back out into the bay, where they contaminate fish and generally wreak environmental havoc.

The old-fashioned cooling system doesn’t meet modern environmental standards, but Mirant wants to keep using it. There are alternatives including so-called dry cooling, which uses little water but the company doesn’t want to pay to retrofit the plant. Instead, Mirant has applied for an extension of its existing permit from the Regional Water Quality Control Board.

City Attorney Dennis Herrera filed an opposition brief, and a decision is pending. The water board should deny the permit and force Mirant to either abide by modern standards or close the place down.

In fact, that ought to be the endgame anyway: Mirant has never committed to shutting down the plant, even if it becomes unnecessary as a local power source. The Board of Supervisors should pass a resolution establishing as city policy the need to close the facility, and should demand that Mirant agree to a schedule to turn off its fossil-fuel power generation program as soon as the city can replace the energy with renewables.

This is exactly the sort of decision a public power agency could and would make and Mirant’s intransigence is another sound reason for San Francisco to proceed at full speed with plans to implement a full-scale public power system, in which elected officials, not private corporations, control the city’s energy mix. SFBG

One down, one to go

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› gwschulz@sfbg.com

As the Pacific Gas and Electric Co. prepared to finally shut down its Hunters Point power plant May 15, environmentalists were gearing up for another task pressuring the Mirant Corp. to replace its 40-year-old, pollution-spewing cooling system near Potrero Hill. The two plants have been blamed for a wide variety of health problems in the southeast part of San Francisco.

Community groups aren’t the only ones decrying the aging facility. Sup. Sophie Maxwell, City Attorney Dennis Herrera, Board of Supervisors president Aaron Peskin, and San Francisco Public Utility Commission general manager Susan Leal all plan to appear at the May 10 Regional Water Quality Control Board meeting to call on Mirant to update the cooling system of its Potrero Unit 3 with more modern technology.

Critics claim the current unit absorbs nearby polluted sediment through its cooling system and discharges it into Bay waters.

The water board will be considering whether to green-light a discharge permit drafted by its staff. But the RWQCB staff proposal, according to Hererra spokesperson Matt Dorsey, is really an extension of a permit Mirant was granted all the way back in 1994. The permit was extended by the water board in 1999 and again in 2004, meaning that the permit has fallen "out of compliance with current environmental standards," Dorsey said.

SF-based Communities for a Better Environment says the permit does not take into account new technologies that would eliminate the need to suck up Bay water for cooling purposes. If Mirant does not switch to the alternative "upland cooling," CBE says, the plant should be closed.

"We’re hoping for there to be as big a turnout as we can get," CBE’s Greg Karras said in a phone interview. "This is the most important issue for the community’s goals on the existing Potrero plant. This plant’s ancient cooling technology is known to kill hundreds of millions of larval fish every year and poison the fish people rely on for food."

The Board of Supervisors passed a resolution April 25 asking the water board to reject the current draft discharge permit and adopt an alternative "community permit" that includes the requirement of a new cooling system.

Lila Tang, chief of the wastewater division of the EPA’s National Pollutant Discharge Elimination System, said the water board needs more time to "fully assess and analyze alternatives for compliance" before addressing new pollution rules that were passed in 2004. But she insisted that the current draft permit includes updated toxicity monitoring requirements and imposes discharge limits on copper and mercury concentrations where such requirements haven’t previously existed.

The water board meeting is scheduled for Wednesday, May 10 at 9:00 a.m. at 1515 Clay St. in Oakland (near the 12th Street Oakland City Center BART station). The deadline for submitting written remarks has passed, but interested parties can still show up at the meeting to make a public comment. Call the water board at (510) 622-2300 for more information.

The Mirant plant has become the new target for environmentalists now that the Hunters Point plant is finally closing. PG&E announced in late April that the long-awaited closure of the plant would finally be completed by May 15. Energy production was transferred to another transmission line April 29. Construction of the new transmission line began in January 2005, but BayviewHunters Point residents have waited for nearly a decade to see the old plant closed as concerns over widespread asthma symptoms in the area grew.

Longtime Hunters Point power plant closure advocates Greenaction and the Huntersview Mothers Committee will throw a community celebration of the plant closure May 12 in the Huntersview public housing project, 227 West Point Rd., near Evans, in San Francisco. All are welcome. SFBG

Sunshine smoke screens

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EDITORIAL There are danger signals coming out of City Hall these days, some not-so-subtle indications that the city’s open-government laws might be quietly coming under attack. Consider:

The City Attorney’s Office has filed an action in Superior Court to have library activist James Chaffee declared a "vexatious litigant." That would stop Chaffee from filing any more legal actions to try to force the Library Commission which has a terrible record on open government issues to comply with state and local laws.

Chaffee is a former chair of the Sunshine Task Force. In 1999 and 2002, he filed a string of suits against the library (all of them lost, the city says) and he’s filed a few actions since then. He’s acted as his own attorney in almost every case. Some of them, frankly, were a little obscure: Changing the public-comment time at a meeting from three minutes to two minutes isn’t the sort of thing that typically requires a lawsuit to resolve. But his work, in and out of court for 31 years, has unquestionably had a positive impact on library openness and has infuriated the Library Commission, which is pushing this action. Chaffee’s last lawsuit was filed more than a year ago. Why go after him now?

The Chaffee litigation comes at the same time as a Sunshine Task Force committee has been quietly discussing ways to handle activists who file repeated, numerous, and extensive records requests. The target in that case is Kimo Crossman, who has filed dozens of requests seeking information related to the city’s dealings with WiFi contractors. We realize he’s flooded the City Attorney’s Office with requests, and it’s costing the city a whole lot of money to deal with them. But his basic point that the entire WiFi contract talks have been far too secretive is absolutely true.

And the question never came before the entire task force, which should have had an open, well-publicized discussion on the issue and sought ways to address it. Instead, David Pilpel, chair of the task force’s Education, Outreach, and Training Committee, called a special hearing on the matter March 22. The meeting, on "abusive, burdensome, excessive, and/or harassing" records requests, was poorly noticed and poorly attended, and Pilpel gave the City Attorney’s Office and the library plenty of time to make their cases, while limiting Crossman and Chaffee to three minutes each.

The full task force essentially rebuked Pilpel at the next meeting, March 28, and task force attorney Ernest Llorente has drafted new rules for special meetings.

Meanwhile, Sunshine Task Force chair Doug Comstock may lose his seat. The supervisors have reappointed all of the sitting task force members except Comstock; Sup. Sean Elsbernd is making an issue of Comstock’s role as a campaign consultant. This one ought to be simple: Comstock was a key part of the campaign to pass the Sunshine Initiative in the first place, led the effort on the latest round of reforms, has been an excellent chair and has been on the public-interest side of every significant issue that’s come before him.

All of this backroom dealing and overreaction has us worried. The issue of "excessive" public records requests is tricky and has the potential to lead to some terrible legislation or rules. It needs a lot more public discussion; the task force ought to schedule a full hearing on it, with plenty of time to thrash out all sides, before anyone proposes any possible solutions. There’s no need to go to court against Chaffee right now, and it sets a bad precedent. City Attorney Dennis Herrera ought to drop the case and tell the Library Commission that it ought to act like open government matters and if it wants to silence critics, it can find the money to hire its own lawyers.

And the supervisors need to reappoint Comstock, who is exactly the kind of person the task force needs as a leader at a critical time like this for open government. SFBG

For more background, including an open letter from Chaffee and the City Attorney’s motion, go to www.sfbg.com.