City Attorney Dennis Herrera

Vote “no” on everything

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All this year’s candidates are unopposed incumbents, which is lame. It’s a sign of an unhealthy democracy that we don’t even have a choice. Why isn’t anyone running? The citywide races on this ballot have no term limits and no public financing, so we’re stuck with career politicians until they decide to move on. Even if they’re okay at their jobs, that’s problematic.

We aren’t necessarily opposed to Treasurer Jose Cisneros or City Attorney Dennis Herrera. They each have admirable accomplishments on their résumés, but they aren’t the type of pioneering progressive leaders that we’re comfortable endorsing in uncontested elections — and Herrera has a couple ugly marks on his record (gang injunctions and invalidating a people’s referendum on Bayview/Hunters Point development).

We are, however, strongly opposed to the Guardian’s endorsements of Carmen Chu and Katy Tang. Back in the day, they worked together in Mayor Gavin Newsom’s budget office. Then he appointed Chu as District 4 supervisor and Tang became her legislative aide. Then Mayor Ed Lee appointed Chu as Assessor and it was Tang’s turn to be District 4 supervisor.

Are you sensing a trend? If Tang goes on to serve two full terms, the Sunset will go from 2007 until 2022 without a contested election. That’s crazy pants!

Odds are that will also mean 15 years without the District 4 supe ever disagreeing with the mayor. Chu was on the opposite side of virtually every contested vote The League has ever cared about: free Muni for youth, the Sit-Lie law, increasing the hotel tax, Election Day voter registration, and CleanPowerSF.

Tang hasn’t been around long, but she’s already voted against CleanPowerSF and carried the mayor’s water by trying to weaken John Avalos’s Due Process for All ordinance. She attempted to insert exceptions that would’ve made undocumented San Franciscans unsure if they could call the police without risking family members’ deportation. When she used the fearmongering image of the city becoming a “safe haven for criminals,” she was rightfully booed by hundreds of immigration and domestic violence advocates in the audience.

And then there’s the golden rule of politics: Follow the money! Chu and Tang have racked up over $150,000 each. Huge chunks of that money come from developers, property managers, consultants, and others looking to strike it rich with land use deals approved by the new board.

That’s especially troubling for Assessor-Recorder Chu. She’s responsible for assessing property taxes, most of which come from skyscrapers downtown. She should be all up in the business of those corporations: Every time a building changes hands or a company’s ownership changes, the company owes a real estate transfer tax. But Chu is buddy-buddy with the Building Owners and Managers Association, taking piles of cash from the real estate industry. That sucks.

This business of the mayor appointing his buddies who then go on to win uncontested races has got to stop. It’s troubling that the mayor — our executive branch — unilaterally fills out our legislative branch. Hello? Did the folks writing our City Charter ever hear of “checks and balances?”

We think all mayoral appointees should be placeholders, legally prohibited from running in the following election. None of this pledging not to run and then “changing your mind” (we’re looking at you, Ed Lee). That reform would be a proposition we could say yes to — and a welcome change of pace from this November’s ballot.

The San Francisco League of Pissed Off Voters is an all-volunteer local chapter of the National League of Young Voters.

Campaign cash still flows during lackluster election cycle

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We may be headed for the most widely ignored election in many years on Nov. 5 — with very low turnout expected to decide the four measures and validate the four largely unopposed incumbent officeholders — but that hasn’t stopped the regular flood of campaign contributions.

The biggest spending this cycle has been by proponents of the 8 Washington waterfront luxury condo project, who have spent at least $857,224 so far to pass either Props. B or C, according to filings with the San Francisco Ethics Commission. San Franciscans for Parks, Jobs and Housing has been funded primarily by the project developers Pacific Waterfront Partners (which just kicked in another $200,000 late contribution on Oct. 11) and contractor Cahill Construction, although even Mayor Ed Lee’s campaign committee recently kicked some cash to the effort.

By contrast, the opposition group to the project and measures, No Wall on the Northeast Waterfront, has spent less than half what the developers have, or just over $400,000. But the group is still sitting on the some of the $553,626 that it’s raised so far, waiting for the home stretch. It’s campaign also got a boost today with the San Francisco Examiner endorsed the No on Props. B&C position, surprising some 8 Washington supporters. 

Assessor-Recorder Carmen Chu has no opposition in her first election since being appointed to the job earlier this year, but that hasn’t stopped her prodigious fundraising, taking in $177,425 and sitting on more than $84,000 in the bank as of Sept. 26. Perhaps Chu and her treasurer Jim Sutton — a bag man for various campaigns and schemes cooked up downtown — are flexing their muscles with an eye toward the future.

Another darling of downtown and the Mayor’s Office, Dist. 4 Sup. Katy Tang, has also been raising big money against only token opposition, taking in $169,329 for this year’s race. City Attorney Dennis Herrera has also raised a significant $127,875 for his one-horse race.

But unopposed Treasurer-Tax Collector Jose Cisneros has kept his fundraising in the realm the reasonable this year, collecting $47,441, and perhaps demonstrating the fiscal prudence that we hope to see in someone of his position.

The next round of pre-election campaign finance disclosures are due Oct. 24. For information on all the measures and candidates, read our endorsements here. 

Endorsements 2013

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We’re heading into a lackluster election on Nov. 5. The four incumbents on the ballot have no serious challengers and voter turnout could hit an all-time low. That’s all the more reason to read up on the issues, show up at the polls, and exert an outsized influence on important questions concerning development standards and the fate of the city’s waterfront, the cost of prescription drugs, and the long-term fiscal health of the city.

 

PROP. A — RETIREE HEALTH CARE TRUST FUND

YES

Note: This article has been corrected from an earlier version, which incorrectly stated that Prop A increases employee contributions to health benefits.

Throughout the United States, the long-term employee pension and health care obligations of government agencies have been used as wedge issues for anti-government activists to attack public employee unions, even in San Francisco. The fiscal concerns are real, but they’re often exaggerated or manipulated for political reasons.

That’s one reason why the consensus-based approach to the issue that San Francisco has undertaken in recent years has been so important, and why we endorse Prop. A, which safeguards the city’s Retiree Health Care Trust Fund and helps solve this vexing problem.

Following up on the consensus pension reform measure Prop. B, which increased how much new city employees paid for lifetime health benefits, this year’s Prop. A puts the fund into a lock-box to ensure it is there to fund the city’s long-term retiree health care obligations, which are projected at $4.4 billion over the next 30 years.

“The core of it says you can’t touch the assets until it’s fully funded,” Sup. Mark Farrell, who has taken a lead role on addressing the issue, told us. “The notion of playing political football with employee health care will be gone.”

The measure has the support of the entire Board of Supervisors and the San Francisco Labor Council. Progressive Sup. David Campos strongly supports the measure and he told us, “I think it makes sense and is something that goes beyond political divides.”

There are provisions that would allow the city to tap the fund in emergencies, but only after it is fully funded or if the mayor, controller, the Trust Board, and two-thirds of the Board of Supervisors signs off, a very high bar. So vote yes and let’s put this distracting issue behind us.

 

PROP. B — 8 WASHINGTON SPECIAL USE DISTRICT

NO, NO, NO!

Well-meaning people can arrive at different conclusions on the 8 Washington project, the waterfront luxury condo development that was approved by the Board of Supervisors last year and challenged with a referendum that became Prop. C. But Prop. B is simply the developer writing his own rules and exempting them from normal city review.

We oppose the 8 Washington project, as we explain in our next endorsement, but we can understand how even some progressive-minded people might think the developers’ $11 million affordable housing and $4.8 million transit impact payments to the city are worth letting this project slide through.

But Prop. B is a different story, and it’s something that those who believe in honesty, accountability, and good planning should oppose on principle, even if they support the underlying project. Contrary to the well-funded deceptions its backers are circulating, claiming this measure is about parks, Prop. B is nothing more than a developer and his attorneys preventing meaningful review and enforcement by the city of their vague and deceptive promises.

It’s hard to know where to begin to refute the wall of mendacity its backers have erected to fool voters into supporting this measure, but we can start with their claim that it will “open the way for new public parks, increased access to the Embarcadero Waterfront, hundreds of construction jobs, new sustainable residential housing and funding for new affordable housing.”

There’s nothing the public will get from Prop. B that it won’t get from Prop. C or the already approved 8 Washington project. Nothing. Same parks, same jobs, same housing, same funding formulas. But the developer would get an unprecedented free pass, with the measure barring discretionary review by the Planning Department — which involves planners using their professional judgment to decide if the developer is really delivering what he’s promising — forcing them to rubber-stamp the myriad details still being developed rather than acting as advocates for the general public.

“This measure would also create a new ‘administrative clearance’ process that would limit the Planning Director’s time and discretion to review a proposed plan for the Site,” is how the official ballot summary describes that provision to voters.

Proponents of the measure also claim “it empowers voters with the decision on how to best utilize our waterfront,” which is another deception. Will you be able to tweak details of the project to make it better, as the Board of Supervisors was able to do, making a long list of changes to the deal’s terms? No. You’re simply being given the opportunity to approve a 34-page initiative, written by crafty attorneys for a developer who stands to make millions of dollars in profits, the fine details of which most people will never read nor fully understand.

Ballot box budgeting is bad, but ballot box regulation of complex development deals is even worse. And if it works here, we can all expect to see more ballot measures by developers who want to write their own “special use district” rules to tie the hands of planning professionals.

When we ask proponents of this measure why they needed Prop. B, they claimed that Prop. C limited them to just talking about the project’s building height increases, a ridiculous claim for a well-funded campaign now filling mailers and broadcast ads with all kinds of misleading propaganda.

With more than $1 million and counting being funneled into this measure by the developer and his allies, this measure amounts to an outrageous, shameless lie being told to voters, which Mayors Ed Lee and Gavin Newsom have shamefully chosen to align themselves with over the city they were elected to serve.

As we said, people can differ on how they see certain development deals. But we should all agree that it’s recipe for disaster when developers can write every last detail of their own deals and limit the ability of professional planners to act in the public interest. Don’t just vote no, vote hell no, or NO, No, no!

 

PROPOSITION C — 8 WASHINGTON REFERENDUM

NO

San Francisco’s northeastern waterfront is a special place, particularly since the old Embarcadero Freeway was removed, opening up views and public access to the Ferry Building and other recently renovated buildings, piers, and walkways along the Embarcadero.

The postcard-perfect stretch is a major draw for visiting tourists, and the waterfront is protected by state law as a public trust and overseen by multiple government agencies, all of whom have prevented development of residential or hotel high-rises along the Embarcadero.

Then along came developer Simon Snellgrove, who took advantage of the Port of San Francisco’s desperate financial situation, offered to buy its Seawall Lot 351 and adjacent property from the Bay Club at 8 Washington St., and won approval to build 134 luxury condos up to 12 stories high, exceeding the city’s height limit at the site by 62 percent.

So opponents challenged the project with a referendum, a rarely used but important tool for standing up to deep-pocketed developers who can exert an outsized influence on politicians. San Franciscans now have the chance to demand a project more in scale with its surroundings.

The waterfront is supposed to be for everyone, not just those who can afford the most expensive condominiums in the city, costing an average of $5 million each. The high-end project also violates city standards by creating a parking space for every unit and an additional 200 spots for the Port, on a property with the best public transit access and options in the city.

This would set a terrible precedent, encouraging other developers of properties on or near the waterfront to also seek taller high-rises and parking for more cars, changes that defy decades of good planning work done for the sensitive, high-stakes waterfront.

The developers would have you believe this is a battle between rival groups of rich people (noting that many opponents come from the million-dollar condos adjacent to the site), or that it’s a choice between parks and the surface parking lot and ugly green fence that now surrounds the Bay Club (the owner of which, who will profit from this project, has resisted petitions to open up the site).

But there’s a reason why the 8 Washington project has stirred more emotion and widespread opposition that any development project in recent years, which former City Attorney Louise Renne summed up when she told us, “I personally feel rich people shouldn’t monopolize the waterfront.”

A poll commissioned by project opponents recently found that 63 percent of respondents think the city is building too much luxury housing, which it certainly is. But it’s even more outrageous when that luxury housing uses valuable public land along our precious waterfront, and it can’t even play by the rules in doing so.

Vote no and send the 8 Washington project back to the drawing board.

 

PROP. D — PRESCRIPTION DRUG PURCHASING

YES

San Francisco is looking to rectify a problem consumers face every day in their local pharmacy: How can we save money on our prescription drugs?

Prop. D doesn’t solve that problem outright, but it mandates our politicians start the conversation on reducing the $23 million a year the city spends on pharmaceuticals, and to urge state and federal governments to negotiate for better drug prices as well.

San Francisco spends $3.5 million annually on HIV treatment alone, so it makes sense that the AIDS Healthcare Foundation is the main proponent of Prop. D, and funder of the Committee on Fair Drug Pricing. Being diagnosed as HIV positive can be life changing, not only for the health effects, but for the $2,000-5,000 monthly drug cost.

Drug prices have gotten so out-of-control that many consumers take the less than legal route of buying their drugs from Canada, because our neighbors up north put limits on what pharmaceutical companies can charge, resulting in prices at least half those of the United States.

The high price of pharmaceuticals affects our most vulnerable, the elderly and the infirm. Proponents of Prop. D are hopeful that a push from San Francisco could be the beginning of a social justice movement in cities to hold pharmaceutical companies to task, a place where the federal government has abundantly failed.

Even though Obamacare would aid some consumers, notably paying 100 percent of prescription drug purchases for some Medicare patients, the cost to government is still astronomically high. Turning that around could start here in San Francisco. Vote yes on D.

 

ASSESSOR-RECORDER

CARMEN CHU

With residential and commercial property in San Francisco assessed at around $177 billion, property taxes bring in enough revenue to make up roughly 40 percent of the city’s General Fund. That money can be allocated for anything from after-school programs and homeless services to maintaining vital civic infrastructure.

Former District 4 Sup. Carmen Chu was appointed by Mayor Ed Lee to serve as Assessor-Recorder when her predecessor, Phil Ting, was elected to the California Assembly. Six months later, she’s running an office responsible for property valuation and the recording of official documents like property deeds and marriage licenses (about 55 percent of marriage licenses since the Supreme Court decision on Prop. 8 have been issued to same-sex couples).

San Francisco property values rose nearly 5 percent in the past year, reflecting a $7.8 billion increase. Meanwhile, appeals have tripled from taxpayers disputing their assessments, challenging Chu’s staff and her resolve. As a district supervisor, Chu was a staunch fiscal conservative whose votes aligned with downtown and the mayor, so our endorsement isn’t without some serious reservations.

That said, she struck a few notes that resonated with the Guardian during our endorsement interview. She wants to create a system to automatically notify homeowners when banks begin the foreclosure process, to warn them and connect them with helpful resources before it’s too late. Why hasn’t this happened before?

She’s also interested in improving system to capture lost revenue in cases where property transfers are never officially recorded, continuing work that Ting began. We support the idea of giving this office the tools it needs to go out there and haul in the millions of potentially lost revenue that property owners may owe the city, and Chu has our support for that effort.

 

CITY ATTORNEY

DENNIS HERRERA

Dennis Herrera doesn’t claim to be a progressive, describing himself as a good liberal Democrat, but he’s been doing some of the most progressive deeds in City Hall these days: Challenging landlords, bad employers, rogue restaurants, PG&E, the healthcare industry, opponents of City College of San Francisco, and those who fought to keep same-sex marriage illegal.

The legal realm can be more decisive than the political, and it’s especially effective when they work together. Herrera has recently used his office to compel restaurants to meet their health care obligations to employees, enforcing an earlier legislative gain. And his long court battle to defend marriage equality in California validated an act by the executive branch.

But Herrera has also shown a willingness and skill to blaze new ground and carry on important regulation of corporate players that the political world seemed powerless to touch, from his near-constant legal battles with PG&E over various issues to defending tenants from illegal harassment and evictions to his recent lawsuit challenging the Accreditation Commission of Community and Junior Colleges over its threats to CCSF.

We have issues with some of the tactics his office used in its aggressive and unsuccessful effort to remove Sheriff Ross Mirkarimi from office. But we understand that is was his obligation to act on behalf of Mayor Ed Lee, and we admire Herrera’s professionalism, which he also exhibited by opposing the Central Subway as a mayoral candidate yet defending it as city attorney.

“How do you use the power of the law to make a difference in people’s lives every single day?” was the question that Herrera posed to us during his endorsement interview, one that he says is always on his mind.

We at the Guardian have been happy to watch how he’s answered that question for nearly 11 years, and we offer him our strong endorsement.

 

TREASURER/TAX COLLECTOR

JOSE CISNEROS

It’s hard not to like Treasurer/Tax Collector Jose Cisneros. He’s charming, smart, compassionate, and has run this important office well for nine years, just the person that we need there to implement the complicated, voter-approved transition to a new form of business tax, a truly gargantuan undertaking.

Even our recent conflicts with Cisneros — stemming from frustrations that he won’t assure the public that he’s doing something about hotel tax scofflaw Airbnb (see “Into thin air,” Aug. 6) — are dwarfed by our understanding of taxpayer privacy laws and admiration that Cisneros ruled against Airbnb and its ilk in the first place, defying political pressure to drop the rare tax interpretation.

So Cisneros has the Guardian’s enthusiastic endorsement. He also has our sympathies for having to create a new system for taxing local businesses based on their gross receipts rather than their payroll costs, more than doubling the number of affected businesses, placing them into one of eight different categories, and applying complex formulas assessing how much of their revenues comes from in the city.

“This is going to be the biggest change to taxes in a generation,” Cisneros told us of the system that he will start to implement next year, calling the new regime “a million times more complicated than the payroll tax.”

Yet Cisneros has still found time to delve into the controversial realm of short-term apartment sublets. Although he’s barred from saying precisely what he’s doing to make Airbnb pay the $1.8 million in Transient Occupancy Taxes that we have shown the company is dodging, he told us, “We are here to enforce the law and collect the taxes.”

And Cisneros has continued to expand his department’s financial empowerment programs such as Bank on San Francisco, which help low-income city residents establish bank accounts and avoid being gouged by the high interest rates of check cashing outlets. That and similar programs are now spreading to other cities, and we’re encouraged to see Cisneros enthusiastically exporting San Francisco values, which will be helped by his recent election as president of the League of California Cities.

 

SUPERVISOR, DIST. 4

KATY TANG

With just six months on the job after being appointed by Mayor Ed Lee, Sup. Katy Tang faces only token opposition in this race. She’s got a single opponent, accountant Ivan Seredni, who’s lived in San Francisco for three years and decided to run for office because his wife told him to “stop complaining and do something,” according to his ballot statement.

Tang worked in City Hall as a legislative aide to her predecessor, Carmen Chu, for six years. She told us she works well with Sups. Mark Farrell and Scott Wiener, who help make up the board’s conservative flank. In a predominantly Chinese district, where voters tend to be more conservative, Tang is a consistently moderate vote who grew up in the district and speaks Mandarin.

Representing the Sunset District, Tang, who is not yet 30 years old, faces some new challenges. Illegal “in-law” units are sprouting up in basements and backyards throughout the area. This presents the thorny dilemma of whether to crack down on unpermitted construction — thus hindering a source of housing stock that is at least within reach for lower-income residents — look the other way, or “legalize” the units in an effort to mitigate potential fire hazards or health risks. Tang told us one of the greatest concerns named by Sunset residents is the increasing cost of living in San Francisco; she’s even open to accepting a little more housing density in her district to deal with the issue.

Needless to say, the Guardian hasn’t exactly seen eye-to-eye with the board’s fiscally conservative supervisors, including Tang and her predecessor, Chu. We’re granting Tang an endorsement nevertheless, because she strikes us as dedicated to serving the Sunset over the long haul, and in touch with the concerns of young people who are finding it increasingly difficult to gain a foothold in San Francisco.

Fight to save City College grows teeth and bites back

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Saving City College of San Francisco became a bigger battle yesterday when the California Federation of Teachers announced a lawsuit in San Francisco Superior Court to keep CCSF open.

The suit is directed against the Accrediting Commission for Community and Junior Colleges, which pronounced the college’s death sentence July 3 by promising to revoke its accreditation in a year, without which a school cannot receive state funding and its students cannot get federal loans. 

Now, the ACCJC finds itself the institution under investigation by the feds and even City Attorney Dennis Herrera, and the CFT lawsuit is the latest legal challenge to the accreditors. 

The CFT charged the accrediting commission with using unfair and illegal business practices in its efforts to abolish City College. When asked for a statement about the impending lawsuit, ACCJC representative Tom Lane declined to comment.

“The ACCJC must be held accountable for their reckless, irresponsible and illegal actions,” CFT President Joshua Pechtalt explained at the Sept. 23 press conference held on the steps of City Hall, where the suit was announced. More importantly, Pechtalt said, winning this lawsuit could potentially stop the closure of CCSF.

A group of students, faculty, and elected officials stood with Pechtalt on the stone steps. One by one, they enumerated the improper activities that will be the basis of their lawsuit against the ACCJC: failing to adhere to its own policies and bylaws, violations of state and federal laws, and sanctioning CCSF without just cause.

Assemblymember Tom Ammiano said that the illegal behavior must stop here and now.

“The blatant lack of transparency, the loose interpretation of the rules, all seen through a lens of hubris and elitism, cannot continue,” he said. “San Francisco is our backyard and the college is our treasure.”

While Ammiano admitted that CCSF is not without its flaws and areas in need of improvement, he was quick to assert that closing the college was not the solution. “Stay out of our backyard unless you have something constructive to say,” he declared.

CCSF Student Trustee Shanell Williams assured the crowd that the lawsuit would be won. “The diverse population of the San Francisco Bay Area, including working families, single parents, new immigrants and others, depends greatly on this college being here,” she said. “If we lose City, we are going to be on our way to being an indentured, working class state.”

If the ACCJC succeeds in San Francisco, it will pave the way for identical treatment of other schools across the state, Williams said. Likewise, CCSF triumphing over the commission would be a victory for every community college in California.

Sup. David Campos also recognized the vital importance of CCSF’s continued existence. “We cannot have the American dream alive in San Francisco if City College closes,” he said. “This fight is about the soul of our city. ”

The US Department of Education has cited the ACCJC for failing to follow its own rules and procedures. A month ago, the Joint Legislative Audit Committee began investigating the commission. The following day, Herrera filed a lawsuit against the ACCJC, claiming it had illegally allowed its advocacy and political bias to prejudice its evaluation of college accreditation standards.

A new report released by the city’s Budget and Legislative Analyst on Sept. 16 detailed the economic impact to San Francisco if City College were to close. The report was requested by Supervisor Eric Mar. We’ve detailed some of the report’s findings in the infographic below. 

ccsf closure infographic 

 

Changing the narrative

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news@sfbg.com

Three distinct players with three distinct strategies for saving City College of San Francisco showed their hands last week, all centered around the Accrediting Commission of Community and Junior Colleges, which plans to revoke City College’s accreditation in less than a year.

City Attorney Dennis Herrera filed a lawsuit against the ACCJC, state lawmakers are revving up to investigate it, and City College Super Trustee Bob Agrella is doing his best to quietly meet the accreditor’s standards.

Whether any of the approaches will save the school is anyone’s guess, but one thing’s for sure: In the process of saving City College, its accreditation agency has gone from an unknown bureaucracy to a polarizing political punching bag.

 

HERRERA FILES SUIT

Herrera threw a right hook at the ACCJC on Aug. 22, announcing his lawsuit to stop them from closing City College. It offers a scathing critique of the accreditation agency and those whose agenda it is pushing.

The ACCJC said City College failed to meet certain standards by its deadline last July, leading the agency to order its closure in exactly one year. Since then, enrollment at the college of 85,000 students plummeted and the school is fighting for its very existence. Now Herrera is saying that closure action was improper, unwarranted, and out of line with the agency’s prior actions.

Herrera’s suit alleges the ACCJC unlawfully allowed its advocacy and political bias to prejudice its evaluation of college accreditation standards. “It is a matter of public record that the ACCJC has been an advocate to reshape the mission of California community colleges,” Herrera said at a press conference.

The agenda he said it was advocating for is the completion agenda, which was the focus of our July 9 cover story, “Who Killed City College?” Essentially, it’s the move to force community colleges to focus on only two-year transfer students at the expense of so-called “non-credit” classes, which can be lifelong learning skills or English as Second Language classes.

“There’s a reason judges aren’t advocates and advocates aren’t judges,” Herrera said. “We should have a problem when an entity charged with evaluation engages in political advocacy.”

 

City College avoided those reform efforts from the state for years, and Herrera alleges that the ACCJC tried to sanction City College because of that resistance.

ACCJC President Barbara Beno was not available for comment. In a statement, the agency said it was surprised to learn Herrera filed a suit against the ACCJC, and that the suit appears to be “without merit” and an attempt to “politicize and interfere with the ongoing accreditation review process.”

Herrera may be playing cowboy, guns aimed right at the ACCJC, but he also said he doesn’t want the agency to close, just to clean up its act and be accountable. But on the other side of the OK Corral, an investigation by the California Legislature is under way — and it may be sizing up a coffin for the ACCJC.

 

JLAC VS. ACCJC

Just a day before Herrera announced his lawsuit, the California Joint Legislative Audit Committee voted to investigate the accrediting commission. The audit committee is a legislative fact-finding body usually staffed by former investigative journalists, and the senators who asked for the hearing were out for the ACCJC’s blood.

“The stakes are high and the commission’s power is absolute,” Sen. Jim Beall, D-San Jose, told the audit committee. He then outlined the danger of losing community colleges that faced closure at the hand of the ACCJC.

Sen. Jim Nielsen, R-Gerber, was much more direct. “Sen. Beall and I met with (ACCJC) President Barbara Beno in my office,” he said. “In all my career, in my thousands of meetings with agency individuals, representatives, secretaries, etcetera, I have never met with such an arrogant, condescending individual in her response to Sen. Beall and I. That attitude reflected in such a senior person raised huge red flags for me.”

 

In public comment, Assemblymember Tom Ammiano, D-SF, noted that recently the U.S. Department of Education upheld the California Federation of Teachers’ complaints that the ACCJC process “is guilty of no transparency, little accountability, and conflict of interest.”

Then it was the ACCJC’s turn to defend itself. Beno was unable to attend, but ACCJC Vice President Krista Johns and Commissioner Frank Gornick were there instead.

Gornick defended the accrediting commission, saying it was “rigorously” evaluated every six years. Ultimately, the committee voted 10-1 to investigate a number of mysteries regarding the ACCJC: how it stacks up to the five other accrediting bodies nationwide, determining the ACCJC’s compliance with open meeting laws (it denied public access to a recent “public meeting,” also barring a San Francisco Chronicle reporter), and an evaluation of the fairness in how the agency issues sanctions.

 

MEET THE NEW BOSS

Amid the state and city level battles over City College, one key player prefers to work quietly. Super Trustee Bob Agrella, tasked by the state to take over the power of City College’s Board of Trustees and save the college, feels his hands are tied.

“My job is to play within the rules and regulations of the ACCJC,” Agrella told the Guardian. Sitting in his office at City College’s Ocean Campus, he pointed out that the accreditation agency actually has a rule that says colleges have to be on amicable terms with the ACCJC — or else.

“One of the eligibility requirements is the college maintains good relationship with the commission,” Agrella said. Notably, if City College fails to meet its requirements, it won’t be able to keep its accreditation in its evaluation next July.

So while Herrera and JLAC can blast the ACCJC, Agrella feels like he needs to remain neutral or he could blow City College’s chances at staying open.

If he were to try battling the commission on its rules, Agrella told us, he would do it within the framework of the ACCJC’s own policies. But it’s exactly those policies that Herrera said the ACCJC is violating.

The lawsuit from Herrera’s office alleges, among other things, that the evaluating team that ACCJC sent to review City College was stacked with the school’s political enemies from a body called the California Community College Student Success Task Force, which City College loudly and publicly opposed (full disclosure: as a former City College student, I spoke against the Task Force at a hearing in January 2012, and that public testimony is cited in Herrera’s lawsuit).

The ACCJC’s president, Beno, wrote multiple letters to state agencies in support of the Task Force’s recommendations, the suit alleges. This action contradicts the ACCJC’s conflict of interest policy, according to the suit, which defines a conflict as including “any personal or professional connections that would create either a conflict or the appearance of conflict of interest.”

So if the ACCJC won’t play by the rules, shouldn’t Agrella support the actions of Herrera and JLAC to resist the ACCJC’s decree?

“In fairness to the people taking these actions, they feel time is of the essence,” Agrella said. “I just happen to, respectfully, disagree with it, because my job is not to push the (ACCJC). My job is to try to retain accreditation.”

But it’s becoming increasingly clear that the ACCJC may not be the only body that will decide the fate of City College.

Chronicle: Don’t question the City College takeover, just submit to the flawed ACCJC

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I have very low expectations from editorials in the San Francisco Chronicle, which generally share a worldview with the Chamber of Commerce and carry water for some powerful Establishment figure or another. But today’s editorial on City Attorney Dennis Herrera’s lawsuit defending City College is so bad and illogical that it reads like an Onion parody of a Chronicle editorial.

Clearly put up to it by some of the most reactionary figures in the Mayor’s Office, Chronicle Editorial Page Editor John Diaz or one his lackeys parrot the submissive stance that Mayor Ed Lee has taken toward outsiders with corporatist agenda that have seized control of City College and sought to make a high-profile example of it.

“The city’s leaders should be calling for tough love, not coddling dysfunction. Fortunately, Mayor Ed Lee has done just that – but, regrettably, the city attorney is going in the opposite direct [sic],” the Chronicle wrote.

And by “tough love,” they apparently mean obedient and unquestioning compliance with an obscure accrediting agency’s demand that City College slash community-based curriculum; close facilities relied on by both students and local nonprofit groups; rip up contracts with faculty and force instructors to live on part-time wages; distill course offerings down to just what serve corporations, universities, and banking interests; and other aspects of an educational agenda that hasn’t been properly vetted in public hearings or approved by any elected body.

Herrera is to be applauded for pointing out the overreach and conflicts-of-interest on the Accrediting Commission of Community and Junior Colleges, which were also recently criticized by the US Department of Education. And we’re excited to see what Herrera uncovers during the discovery process in his lawsuit against a secretive, corporate-connected, document-shredding agency that broke its own internal rules in its treatment of City College.

The Chronicle graciously refers to these unavoidable facts in a brief paragraph, writing that the ACCJC “is not without flaws. It’s secretive, and its internal policies drew a rebuke from the U.S. Department of Education after City College faculty filed complaints about its conduct.”

But then it dimisses that and shows a suspicious incuriosity about why the ACCJC is being so secretive and what its agenda might be, instead doubling down on criticizing City College in a way that is so over-the-top that this fine institution is unrecognizable to anyone who is actually familiar with it, which Diaz and company clearly aren’t.   

“The needed changes include hiring a comptroller to organize financial controls, making sure students pay for classes, and overhauling a loose-fit governance system that puts faculty, students and staff in charge of operations with inadequate administrative controls. Lee has strongly endorsed an overhaul of City College’s ramshackle operations,” the Chronicle writes.

Unlike us here at the Guardian, where I’ve written two recent editorials in support of democracy and local control and critical of Lee and others who have been too quick to cooperate with the toppling of the locally elected Board of Trustees, the Chronicle apparently believe in more authoritarian methods of governance.

“The first repairs are now under way. The powers of the elected community college board are on hold, and a special trustee dispatched by state Community College Chancellor Brice Harris is in charge,” the Chronicle writes.

And as we report in our upcoming issue, that special trustee also has no interest in questioning the ACCJC’s process or methods or even allowing the public to review internal communications. It’s a shame that bootlickers like Lee and the Chronicle have sold out such an important local institution to their corporate masters, but luckily for San Francisco, Herrera, the California Federation of Teachers, the Guardian, other progressive media voices, and hundreds of our community partners aren’t giving up so easily, instead pushing for an open, truthful, democratic, and transparent discussion about City College’s mission and its future.

SF City Attorney Dennis Herrera sues to keep City College open

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City Attorney Dennis Herrera filed a suit today to block City College of San Francisco’s accreditation agency from closing down the school.

The accreditation agency, the Association of California Community and Junior Colleges, moved to put City College on a sanction last July that would lead to its closure in exactly one year. Since then, enrollment at the college has plummeted and the school has been in the fight for its very existence. Now Herrera is saying that closure action was improper, unwarranted, and out of line with the agency’s prior actions.

Herrera’s suit alleges the ACCJC unlawfully allowed its advocacy and political bias to prejudice its evaluation of college accreditation standards, he said. “It is a matter of public record that the ACCJC has been an advocate to reshape the mission of California community colleges,” Herrera said, and that was the basis of his suit.

The ACCJC cannot be advocates for change in the higher education system, he said. “There’s a reason judges aren’t advocates and advocates aren’t judges,” he said. “Now we have no problem with the right of others to advocate an agenda against the open access mission… but we should have a problem with an entity charged with evaluation engages in political advocacy.”

Notably, the ACCJC wanted City College to shrink its mission, concentrating its money on students who could transfer easily to four year institutions from City College, which many advocates say would leave students learning trades, new English learners, and other disenfranchised students in the dust. You can see our coverage on that here.

Above: Text of Herrera’s suit and a press release with more information, courtesy of Sara Bloomberg, reporter for City College’s newspaper The Guardsman.

 

Herrera also filed an administrative action against the California Community College Board of Governors, saying they had abandoned their role as the check and balance on community colleges, and left it to a private institution that was unaccountable to the public (for full disclosure, I am named in Herrera’s suit on pages 16 and 18 for my role advocating against the Student Success Act of 2012 to the Board of Governors. I was a student at the time, not a professional reporter, and I have no personal stance on the future of the ACCJC). The Board of Governors oversees the 112 community colleges in California, the largest body of community colleges in the country. 

Alisa Messer, the faculty union president of City College, agreed that the Board of Governors should not be abdicating its policy and oversight role. 

“No outside, unaccountable agency should be making up its own rules or setting policy for our state’s colleges,” she said. 

City College Trustee Rafael Mandelman applauded action against the ACCJC.

“At this point I think it absolutely critical the ACCJC is not in the driver’s seat making these decisions, they’re not fit to do that,” he told the Guardian.

This past Tuesday City College submitted review documents to the ACCJC attesting to why it should be allowed to stay open and accredited, and Therese M. Stewart, the chief deputy city attorney, said that while they sent an order to ACCJC not to destroy documents, they had not yet obtained any documents yet. “We haven’t actually sought documents yet from the ACCJC, we asked them to not destroy documents so that we may seek them later,” she said. “Eventually we will get them.”

Fizzling energy

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A plan for a municipal power program that would offer 100 percent green energy to San Francisco customers was stalled on Aug. 13, prompting Sup. John Avalos to explore what legal options might be available to bring the program to fruition without further delay.

Prior to that San Francisco Public Utilities Commission hearing, supporters of CleanPowerSF rallied on the steps of City Hall, urging Mayor Ed Lee and members of the commission to approve a not-to-exceed rate, a technical hurdle that must be cleared before the program can advance. SFPUC staff cannot formalize a contract for purchasing power on the open market until that maximum rate has been formally established, so as long as it goes unapproved, CleanPowerSF lingers in limbo.

“We call on the Mayor’s Office to stop impeding progress with heavy-handed politics,” said Shawn Marshall, executive director of Local Energy Aggregation Network (LEAN) — a group that assists with clean-energy municipal power programs. “And we ask the San Francisco Public Utilities Commission to stay focused on its job of implementing a program that was approved by the San Francisco Board of Supervisors last September. That’s almost a year ago, folks.”

But after more than two hours of public comment in which dozens of advocates voiced support for moving ahead with the program, SFPUC commissioners voted down a motion to approve the rate, leaving CleanPowerSF in limbo with no clear path forward.

 

COMMISSIONER CONCERNS

Commissioners Francesca Vietor and Anson Moran were the only ones on the commission to favor the rate approval, while Ann Moller Caen, Vince Courtney, and President Art Torres shot it down.

“I feel like today is a historic moment for the SFPUC as well as the city of San Francisco,” Vietor said as she introduced the motion at the beginning of the meeting, “to become a leader in combating climate change.”

Rather than focus on the question of whether or not to establish a top rate of 11.5 cents per kilowatt-hour (a reduced price from an earlier proposal that sparked an outcry from critics because of the sticker shock), Torres and Caen criticized CleanPowerSF before casting “no” votes.

Caen said she’d “always had problems with the opt-out situation,” referring to a system that will automatically enroll utility customers into the program, while Torres criticized the project for changing shape since its inception, saying, “at the end of the day, this is not what San Franciscans had anticipated.”

But after straying well beyond the scope of a discussion about the not-to-exceed rate, commissioners who shot down CleanPowerSF didn’t provide SFPUC staff with any hints on how to allay their concerns. Some might interpret the hearing outcome as a death knell for CleanPowerSF, but Avalos has taken up the cause of pushing for implementation.

Unable to attend the hearing in person, Avalos sent legislative aide Jeremy Pollock to convey his concerns. “We all understand the politics of the situation,” his statement noted. “The Board of Supervisors and every major environmental group in the City support this program. The Mayor, PG&E, and its union oppose it. I know you are feeling a lot of pressure from both sides. But we cannot afford further political gamesmanship to cause additional delays in an attempt to kill this program.”

The effort to implement CleanPowerSF is mired in politics. For Pacific Gas & Electric Co., Northern California’s largest utility, the enterprise represents an encroachment into prime service territory and a threat to the power company’s monopoly.

PG&E has long been highly influential at San Francisco City Hall. It has funded many political campaigns and curried favor with powerful figures (former San Francisco Mayor Willie Brown, known to be a frequent dining companion of the mayor, has been richly rewarded for his consulting services, for instance). Mayor Ed Lee opposes the program, and holds the authority to appoint commissioners to the SFPUC.

 

CLASH OF CITY BODIES

The City Charter gives the SFPUC the responsibility of establishing fair and sufficient rates for the city’s utility operations. But Avalos charged that “any further delay will essentially show that we are in a constitutional crisis caused by a city department failing to carry out a policy approved by a veto-proof supermajority of the Board of Supervisors.”

The supervisor added that if the rate failed to win approval at the hearing, he would call upon the City Attorney to explore legal options “to resolve this type of stalemate—including the possibility of drafting a Charter Amendment. CleanPowerSF is too important and the threat of climate change is too significant to allow this program to die on the vine. It is time for leadership.”

Pollock said on Aug. 15 that Avalos was still awaiting a response from City Attorney Dennis Herrera’s office.

Meanwhile, activists who’ve attended countless meetings with SFPUC staff to move the program forward expressed frustration in the aftermath of the vote. “Things are in this holding pattern, and the dissenting commissioners did not provide a way forward,” noted Jed Holtzman, an advocate with climate group 350 Bay Area. “They just kind of said, ‘no.'”

The weekend before the hearing, mailers paid for by International Brotherhood of Electrical Workers Local 1245, a union representing PG&E employees, blanketed Noe Valley residences with fliers. Depicting seashells besmirched with oil, the mailers seized on the involvement of Shell Energy North America, an oil giant with a contract pending with the SFPUC to administer power purchases for the first four and a half years of the program.

Shell’s involvement presents something of a challenge for advocates, who have long advocated for a program that would be run entirely by the SFPUC with a centerpiece of renewable power generation facilities that could double as a source of local job creation.

The initial program phase looked quite different: Shell would purchase green power on the open market, making CleanPowerSF significantly more expensive than PG&E. To address that concern and lower rates, SFPUC staff recently allowed the use of Renewable Energy Credits (RECs), more affordable units accounting for green power produced somewhere in California as opposed to electricity coming straight over the power lines.

Despite the drawbacks of a more watered down start to the program and the involvement of a notorious fossil fuel company, progressives and major environmental organizations strongly advocated for moving forward with the Shell contract to give the SFPUC a shot at positioning itself financially to float revenue bonds for build-outs of a local green energy infrastructure.

“The plan is to completely replace this with the build-out,” noted John Rizzo, who sits on the executive committee of the San Francisco Bay Chapter of the Sierra Club.

 

BUILDING LOCAL PROJECTS

A 134-page report prepared by Local Power Inc. described in careful detail how the city could use wind, solar, geothermal, energy efficiency, and other measures for a viable program. While SFPUC representatives have indicated that some of those recommendations will still be implemented, the agency is no longer working with Local Power.

“Our draft model was 1,500 jobs per year,” Paul Fenn, founder and president of Local Power, wrote in an email to the Guardian. “But earlier runs show as many as twice that many jobs, and we projected the higher end for the final model.” In the end, though, “SFPUC declined to continue with completion of this work, so we are in limbo — apparently an organization without allies,” Fenn added. Asked about this, Kim Malcom, the SFPUC’s director of CleanPowerSF, told the Guardian that Fenn’s analysis was based on the assumption that the agency would issue bonds totaling $1 billion. “We have no confidence that we could issue a billion dollars worth of bonds in the first few years of the program,” she said, noting that the highest the agency expected to go was closer to $200 million. And at this point, it remains to be seen whether CleanPowerSF will move ahead at all. “One of the difficulties we face is that we can’t move forward without a rate,” SFPUC spokesperson Charles Sheehan noted. “In terms of launching and implementing, we can’t do that until we have a rate structure,” and now that the utility board has blocked that from happening, there is no clear path forward. Still, activists who are serious about CleanPowerSF believe it’s key for positioning San Francisco as a leader in the fight against climate change. “CleanPowerSF is a crucial step for achieving California’s 2020 greenhouse gas goals,” Bill Reilly, chairman emeritus of the World Wildlife Fund and a former EPA administrator, wrote in a letter to Lee. “It’s also an essential model &ldots; as cities and communities are compelled to address the problems fueled by climate change.”

“Greyhound therapy” is wrong for Nevada, and San Francisco

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It’s horribly inhumane and indefensible for Nevada to ship its mentally ill homeless to San Francisco, and City Attorney Dennis Herrera is right to go after that state with a lawsuit aimed at changing that policy and recovering the city’s costs, which he discussed today in a press release and San Francisco Chronicle article.

But San Francisco should have greater moral authority to make this stand than it does, thanks to the Homeward Bound program started by then-Mayor Gavin Newsom and continued by Mayor Ed Lee, a program that gives local homeless individuals a one-way bus ticket out of town.

The Chronicle took pains to say how different San Francisco’s exportation of its homeless is from Nevada’s, noting that we make sure our homeless are stable enough to travel alone and that there’s someone waiting for them on the other side before we send them to the bus station.

Sure, that’s better, but the basic concept is the same and it’s consistent with San Francisco basic approach toward much of its homeless population, for whom the city intentionally limits shelter beds and makes it difficult to get one and treats the resulting street population as a law enforcement issue.

Newsom was elected on his Care Not Cash promise to provide shelter and social services to the homeless, and it certainly did get many people who needed it into supportive housing. But the actual homeless problem is far worse and more systemic than that program (or feel-good gimmicks like Project Homeless Connect) can really address.

San Francisco should be leading the way in calling for this country to address the root causes of homelessness, as well as the related problems of poverty, exploitation of workers and natural resources, and a wasteful economic system that is cooking the planet and its biodiversity.

Instead, we’re leading the way in pushing unsustainable, technology-fueled economic growth with no regard for the byproducts of wealth generation by the privileged few, whether it be giving our homeless one-way bus tickets out of town, forcing our workers and nonprofits to seek reasonable rents elsewhere, undermining hard-won social compromises, or missing our own greenhouse gas reduction goals (today’s Examiner cover story).

We can — and we should — take greater responsibility for our city’s policies and prejudices and work to regain  the moral authority that we need to be an example for other cities and begin to advocate for needed reforms on the national and international levels.  

Get tough with defiant disrupters

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EDITORIAL It may sometimes seem like we at the Bay Guardian don’t like the technology industry, but nothing could be further from the truth. We tweet, click, post, and share, playing with all the hot new tech toys that spring from the innovative minds of Bay Area residents. This is an important sector of the local economy, one that often empowers people who were just getting by to remain in expensive San Francisco.

Yes, we do regularly criticize tech (and some of its biggest neoliberal cheerleaders in City Hall), as we do to Airbnb, Lyft, and other so-called “shareable economy” companies in this issue. But that’s only because we strongly believe in open and transparent discussions about public policy and the needs of city residents.

And frankly, that’s not happening these days.

Instead of engaging directly and honestly with the people and our elected representatives, Airbnb has chosen to duck its obligations to the city of its birth and dodge attempts to create a public dialogue about its dangerously flawed business model. Same thing with Lyft, another company that acts as if it’s entitled to undermine civic institutions without so much as a public conversation first.

Yes, these companies have come up with cool ideas that have become popular with Bay Area residents. In a city where it was tough to find a cab on Saturday nights, Lyft made it easier to find rides and allowed people to make some extra cash off their cars. Airbnb was also a great idea that makes travel cheaper and more personal.

The beauty of these ideas is their simplicity — but that is also their main flaw, because San Francisco isn’t a simple city. It’s a complex, dynamic city with difficult landlord-tenant dynamics, and a congested city that tries to achieve the right balance of cabs on the roadways, both systems that are the products of decades-long struggles that have spawned reams of regulations.

These tech-savvy fortune hunters, who don’t understand or appreciate that history, think it’s enough to have a good idea and some rich venture capitalists willing to back it. They espouse vaguely libertarian ideas about “disruptive” technologies empowering people, but then they wait for government officials to solve the problems with their business models, raking in millions of dollars in profits in the meantime and delaying their day of public reckoning as long as possible.

For example, in a May interview on KQED’s Forum, Airbnb’s David Hantman was asked why the company was defying a city ruling that it must pay the transient occupancy tax, he said they were waiting for the city to adopt a new regulatory structure first.

That’s not an acceptable or defensible position, and it is only continuing because Mayor Ed Lee has publicly supported the company’s defiance of city law and rulings. Mr. Mayor, if these are the types of “jobs” you’re creating — part time jobs with no benefits in an underground economy that cannibalizes other industries, breaks city laws, and won’t pay local taxes — then this city is in real trouble.

We’re happy to see Board President David Chiu trying to solve Airbnb’s problems, but he needs the support of other top city officials who are willing to put pressure on the company to bargain in good faith. And yes, we’re talking to Mayor Lee, Tax Collector Jose Cisneros, and City Attorney Dennis Herrera, among others.

If you make the city appear impotent to enforce its own laws or too willing to go easy on wealthy corporations, it will only embolden more young opportunists to disrupt the city’s regulatory authority and its social fabric. You work for us, not the venture capitalists, and it’s time to show some spine.

 

Wedding bells and Pride protests

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rebecca@sfbg.com ; steve@sfbg.com

The city of San Francisco was a complete whirlwind from June 26 to June 30. First came the historic Supreme Court ruling that ended the ban on same-sex marriage in California and struck down the discriminatory Defense of Marriage Act. The historic decision, handed down just before the city’s Pride festivities got underway and as a rare heat wave gripped the city, unleashed widespread celebration June 26, culminating with a rally and dance party in the streets of the Castro.

The Supreme Court ruled that the Defense of Marriage Act, which denies federal recognition of same-sex marriage, “is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.” According to the majority opinion, “DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal.”

Hollingsworth v. Perry, the Prop 8 case, was dismissed on standing due to the fact that the State of California refused to defend it in court. That meant the previous ruling invalidating Prop 8, by Judge Vaughan Walker and upheld by the Ninth Circuit Court, was upheld.

City Hall was totally packed at 7am when the Court convened, with hordes of journalists, gay and lesbian couples, and sign-wielding activists in the crowd. Cheers erupted when the decision was announced striking down DOMA. When the Prop 8 statement came down, the room went nuts.

“It feels good to have love triumph over ignorance,” said Mayor Ed Lee, who joined Lt. Gov. Gavin Newsom in escorting a fragile Phyllis Lyon down the stairway. When Lyon married the late Del Martin, they became the first same-sex couple to get legally married in California in 2004.

“San Francisco is not a city of dreamers, but a city of doers,” Newsom said. “Here we don’t just tolerate diversity, we celebrate our diversity.” He thanked City Attorney Dennis Herrera and others who’d contributed to the fight to for marriage equality. “It’s people with a true commitment to equality that brought us here.”

When Herrera took the podium, he turned to Newsom, and said, “Now you can say, ‘Whether you like it or not!'” — a joking reference to Newsom’s same-sex marriage rallying cry, which some blamed for boosting the anti-same-sex marriage cause. “We wouldn’t be here today if it wasn’t for Gavin Newsom’s leadership,” Herrera continued. “I remember in 2004 when people were saying it was too fast, too soon, too much.” Herrera also pledged to continue the fight that began here in City Hall more than nine years ago: “We will not rest until we have marriage equality throughout this country.”

Later that afternoon, clergy from a variety of faiths including Christianity, Judaism, Islam, Buddhism and the Church of Latter Day Saints gathered on the steps of Grace Cathedral on Nob Hill for a buoyant press conference to celebrate the court’s rulings.

“For 20 years I’ve been marrying gay and lesbian couples, because in the eyes of God, that love and commitment was real, even when it wasn’t in the eyes of the state,” said Rabbi Michael Lerner of the Beyt Tikkun Synagogue. “We as religious people have to apologize to the gay community,” he added, for religious texts that gave opponents of gay marriage ammunition to advance an agenda of discrimination.

He added that the take-home message of the long fight for marriage equality is, “don’t be ‘realistic.’ Thank God the gay community vigorously fought for the right to be married — because they were not ‘realistic,’ the reality changed. Do not limit your vision to what the politicians and the media tell you is possible.”

Mitch Mayne introduced himself as “an openly gay, active Mormon,” which is significant since the Mormon Church was a major funder of Prop 8. He called it “one of the most un-Christlike things we have ever done as a religion,” but noted that the sordid affair had brought on “a mighty change in heart from inside the Mormon community, with greater tolerance than ever before,” with many Mormons going out and marching in solidary with gay and lesbian couples, he said.

Then on June 28, earlier than expected, the County Clerk started issuing same-sex marriage licenses. Kris Perry and Sandy Stier, plaintiffs in the case against Prop. 8, became the first of dozens of happy couples to be married at City Hall that evening, and the marriages continued in the days that followed.

And as if that weren’t enough excitement, it all happened before the weekend, when Pride festivities got underway. This year featured not only the official Pride parade and myriad performances, but also an “Alternative to Pride Parade,” signifying that a radical Pride-questioning movement has been reawakened in San Francisco.

“Have you had enough with the poor political choices of some community leaders that claim to represent you? Are you over the over-corporatizing of SF Pride? Or just tired of the same old events that don’t reflect who you are, and how you want to celebrate your queer pride?” organizers wrote in a statement announcing the event.

The parade itself, meanwhile, also featured some dissenters. The third annual Bradley Manning Support Network contingent swelled in ranks this year, due to the political maelstrom touched off when the Pride Board rescinded Manning’s appointment as Grand Marshal.

The Bradley Manning Support Network contingent attracted more than 2,000 supporters who marched to show solidarity with the openly gay whistleblower, comprising the largest non-corporate contingent in the Parade. Former military strategist Daniel Ellsberg, who leaked secret government documents known as the Pentagon Papers to the press in 1971, donned a pink boa and rode alongside his wife, Patricia, in a pick-up truck labeled “Bradley Manning Grand Marshal.” Patricia told the Bay Guardian, “There is something about the energy and triumph of this beautiful event … Just as the gays have made a tremendous difference with marriage, we have to do the same with wars and aggression” in U.S. foreign policy.

Pride’s legal counsel, Brooke Oliver — who resigned over the Pride Board’s handling of the Manning debacle — marched along with the Bradley Manning contingent. Bevan Dufty, former SF Supervisor and now the mayor’s point person on homelessness, stepped down as a Grand Marshal, also because of the Pride Board’s actions, but didn’t march with the contingent.

Nor were the Bradley Manning supporters the only protest contingent to take part in the parade. A group seized the opportunity to make a political statement by marching with a faux Google bus, an action meant to call attention to gentrification and evictions in San Francisco. They rented a white coach and covered it with signs printed up in a similar font to Google’s corporate logo, proclaiming: “Gentrification & Eviction Technologies (GET) OUT: Integrated Displacement and Cultural Erasure.”

Some trailed the faux Google bus with an 8-foot banner depicting a blown-up version of an Ellis Act evictions map. Others donned red droplets stamped with “evicted” to signify Google map markers, while a few toted suitcases to represent tenants who’d been sent packing. However, their ranks were thin in comparison with the parade contingents surrounding them, which included crowds of workers representing eBay, DropBox, and, of course, Google — the largest corporate contingent in the parade.

“The organizers of this anti-gentrification and displacement contingent are not ‘proud’ that folks are being kicked out of this city that was once their refuge,” organizers of the faux Google bus contingent wrote in a press statement. “The 2013 SF Homeless Count and Survey shows that 29 percent of the city’s homeless population is ‘LGB and other.’ The Castro is experiencing the highest number of evictions in the city. Meanwhile, the SF Pride Parade is becoming as gentrified as SF. This group is calling on Pride to remember its roots.”

 

From around the Internet: San Franciscans celebrate marriage equality

All around San Francisco yesterday, gay couples, city leaders, and street revelers celebrated the Supreme Court’s rulings striking down Proposition 8 and the Defense of Marriage Act. Here’s a glimpse of the how the city reacted to the news on June 26, as told by San Franciscans who uploaded videos to YouTube (video after the jump):

Our video mashup features (in order of appearance) Jay and Bryan Leffew with their two kids, Daniel and Selena; a crowd reacting with cheers as they attended an early-morning gathering at San Francisco City Hall (video uploaded by Will Kivinski); San Francisco City Attorney Dennis Herrera, Lt. Gov. Gavin Newsom, and District 9 Supervisor David Campos (all featured in a video of the press conference produced by the city); Cindy Sunshine and friends (uploaded by Prana Fitte); and scenes of a street-party celebration in the Castro uploaded by HiWorld798 and Elena Olzark.

Supreme Court same-sex marriage decisions: DOMA invalidated, Prop 8 case dismissed, SF reacts [UPDATED]

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Watch this space throughout the day for breaking news on the decision and reactions. Tonight there will be a celebration of the Court’s decisions at Castro and Market Streets at 6:30pm. (Join  the Guardian beforehand, 6-9 at the Pilsner in the castro, at its annual pre-Pride event.) 

DOMA INVALIDATED

The Supreme Court released its ruling this morning that the Defense of Marriage Act, which denies federal recognition of same-sex marriage, “is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.”

“DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty,” according to the majority opinion. “DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal.” The Court voted 5-4, with Justice Kennedy, who wrote the majority opinion, as the decisive vote along the usual liberal/conservative lines. You can read the full opinion here

This means that same-sex marriages performed in states that have legalized such marriages will be recognized by federal law.  

PROP 8 DISMISSED ON STANDING

As for Hollingsworth v. Perry, the Prop 8 case, it was dismissed on standing, due to the fact that the State of California refused to defend the case that would uphold Prop 8 (which denied same-sex marriage).That meant private citizens were left to defend a state statute, which was unprecedented, and the Court refused to rule on those grounds.

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here,” the majority Court statement (which broke along the typical 5-4 line) said. That means there is no specific decision from the Court regarding Prop 8, and the previous ruling, by Judge Vaughan Walker and upheld by the Ninth Circuit Court, that invalidated Prop 8 as discriminatory, stands.

This may mean that same-sex marriages in California can resume as early as July.

You can read the full Prop 8 ruling here.

Scene this morrning at SF City Hall, with Mayor Ed Lee and Lt. Gov. Newsom. Photo by Dan Bernal.

[UPDATE] REACTIONS AT CITY HALL

Steven T. Jones reports from SF City Hall:

City Hall was totally packed at 7am when the US Supreme Court convened — tons of journalists, lots of couples, many signs in the crowd. Two screens were set up, one with a live blog from court chamber, the other with the CNN live feed. Huge cheers erupted at 7:11 when the decision was announced striking down DOMA and forcing the federal government to recognize the rights of same-sex married couples.  Then at 7:38, when the Prop 8 statement came down, the room went nuts. 

A moment later, an array of current and former city officials appeared at the top of the City Hall main staircase. Mayor Ed Lee and Lt. Gov. Gavin Newsom escorted a fragile Phyllis Lyon down the stairs — she, along with the late Del Martin, were the first same-sex couple to get legally married in California in 2004 — flanked by the rest of the city family, all with big smiles.

“Welcome to the people’s house of San Francisco,” Mayor Lee said, thanking the crowd “for sharing in this historic moment.”

“It feels good to have love triumph over ignorance,” he said.

At 7:44, City Attorney Dennis Herrera and Chief Deputy City Attorney Terry Stewart, who had been on the City Hall steps addressed reporters’ question on the legal details of the ruling, joined the crew to sustained applause as Lee recognized them. He then introduced Newsom, who in 2004 as San Francisco mayor allowed same-sex marriages to be performed, as “one person who used the power of this office to make history and show his love for the city.”

“San Francisco is not a city of dreamers, but a city of doers,” Newsom said. “Here we don’t just tolerate diversity, we celebrate our diversity.” He thanked Herrera and everyone who contributed to this moment. “It’s people with a true commitment to equality that brought us here.”

Newsom introduced Kate Kendall with the National Center for Lesbian Rights, who has led the coalition of groups that have push for marriage equality. She looked around the crowd and said, “Fuck you, Prop 8!”

The crowd roared, and she said that she had scanned the room for children, and promised to “put a dollar in the swear jar” if necessary. But she said that, “We have lived for too many years under that stigmatizing piece of crap.”

Then Herrera took the podium, turned to Newsom, and said, Now you can say, ‘Whether you like it or not!'” — a joking reference to Newsom’s same-sex marriage rallying cry, which some blamed for boosting the anti-same-sex marriage cause.

“We wouldn’t be here today if it wasn’t for Gavin Newsom’s leadership,” Herrera continued. ““I remember in 2004 when people were saying it was too fast, too soon, too much.”

But today, that long effort has been vindicated, Now, he said, “It’s about changing the hearts and minds of people and educating them.” He also pledged to continue the fight that began here in City Hall more than nine years ago: “We will not rest until we have marriage equality throughout this country.”

Gavin Newsom being interviewed inside City Hall. Photo by Steve Jones

Finally Stewart, who has argued cases related to San Francisco’s stand before both the US and California Supreme Courts, praised both the Prop. 8 and DOMA rulings and the precedents they set. “In the DOMA case decision, the Supreme Court expressed a stong equal protection philosophy…that will help legalize same sex marriage in other states.”

Three members of the Board of Supervisors were also invited by Kendell to address the huge City Hall crowd: Board President David Chiu and Sups. David Campos and Scott Wiener, the only two current supervisors who are gay.

Chiu noted that the bust of slain Sup. Harvey Milk is prominently positioned outside the Board Chambers, a reminder of the long struggle for gay rights that San Franciscans have led. “That work lives on today,” he said.

He added the hope that the work done here will ripple out of across the country because, he said, “As goes San Francisco, so goes California, so goes the rest of the country.”

Campos, an attorney who has long been in a committed relationship, said, “It’s a very emotional moment for those of us who are part of the LGBT community.” He said this Supreme Court ruling is the first time it has really acknowledged “that we are people and we have dignity,” and that the rulings sends a clear message to Congress that legislation like DOMA is unconstitionally discriminatory.

Wiener praised the resilience of the LGBT community, from the early days of enduring the AIDS crisis and fighting for federal support through the current campaign for marriage equality. And he cheered the fact that, “Those marriages that we see under the rotunda [in City Hall] will get a little more diverse.”

11:30 AM UPDATE: Style and substance

While Newsom strutted around like a proud peacock in front of City Hall — clearly the leading man in this epic story with the happy ending, much in demand by the television crews — Herrera and Stewart briefed various reporters on the details of the case that they had just won.

Gavin Newsom outside City Hall. Photo by Steve Jones.

“I wanted a merits ruling, but a standing ruling is a victory too,” Herrera told us, making the distinction between the court ruling that banning same-sex marriage is unconstitutional on the grounds of equal protection under the law — which it did not do — and the 5-4 ruling it did issue: that those who appealed the Ninth Circuit Court ruling invalidating Prop. 8 lack proper legal standing to do so.

The standing ruling leaves same-sex marriage opponents more wiggle room to argue that the ruling might only apply to the couples named in the suit, or in just the counties that took part, which also included Alameda and Los Angeles, positions they were already signaling in press statements.

But Herrera said that he would vigorously contest that kind of challenge, which he considers to be without merit, telling us, “The injunction is not limited in its scope.”

UPDATE: SFPD isn’t worried

Police Chief Greg Suhr, who attended the City Hall event, said the timing on the ruling during Pride Week couldn’t be better. “It’s nice that it all lined up for us,” he told us. “This town is going to rock ‘til the wheels come off.”

Asked whether he has any heightened security concerns about the Pride Parade in the wake of a ruling that is controversial to some, Suhr said that he’s not worried. He said SFPD is now fully staffed and all available personnel working this weekend, although he will try allow many of his gay and lesbian officers to join the celebration if they want.

“We’re going to police what’s likely to be the biggest party this city has ever seen,” Suhr said, adding that his policing philosophy is, “We plan for the worst and hope for the best.”

 

On pins and needles

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steve@sfbg.com

[UPDATE: The Supreme Court has overturned DOMA and dismissed the Prop 8 case. Read our full coverage here.]

As San Francisco’s LGBT community and its supporters prepared for Pride Weekend, the whole city was anxiously awaiting the imminent US Supreme Court ruling on same-sex marriage. That case began here more than nine years ago when then-Mayor Gavin Newsom decided to let gay men and lesbians marry and the City Attorney’s Office launched a long and torturous legal battle.

The synchronous timing of the two events couldn’t be better. (Well, it could have been better for the Bay Guardian‘s deadline if the ruling has come out June 25, instead of when this issue will be hitting the streets on June 26, but you can read our full, live coverage here at sfbg.com tomorrow.)

LGBT activists are planning a massive rally at Castro and Market streets starting at 6:30pm on June 26, along with another performance stage at Market and 19th streets featuring Donna Sachet emceeing performances ranging from DJs to drag and other live performances, like an early start to an already packed Pride Weekend. (For more info, see www.dayofdecision.org.)

Of course, at press time it was still unclear whether we’ll see a joyous springboard for a raucous Pride that many are hoping for, with total victory and marriage equality becoming the law of the land; a bitter repudiation of LGBT rights reminiscent of Nov. 4, 2008, when the street celebrations over President Barack Obama’s election victory were tempered by frustration over voters approving Prop. 8 and banning same-sex marriage; or something in between.

The ruling will cap a see-sawing legal and political battle for which the City Attorney’s Office calculates it has written more than a half-million pages of legal briefings for more than 50 judges at various levels, including four trips before the California Supreme Court in four separate but related cases before making arguments to the US Supreme Court in March.

If the ruling doesn’t legalize same-sex marriage in California, activists say they’ll immediately return the struggle back into the political arena and use the momentum of the ruling (and the three states that legalized same-sex marriage this year, bringing the total to 12) to win at the ballot box (it would take a popular vote to undo Prop. 8).

If that happens, look for our own Sen. Mark Leno — who got the California Legislature to approve his legislation legalizing same-sex marriage, twice, only to have it vetoed by then-Gov. Arnold Schwarzenegger — to play a lead role.

“The only option is to re-amend the constitution to eliminate the discriminatory Prop. 8,” Leno told us. That measure could be placed on the 2014 ballot by either the Legislature or an initiative, which Leno said will be decision for the coalition of same-sex marriage supporters.

There are benefits and drawbacks to both options. Gathering signatures for an initiative is expensive, but that effort would also help launch the campaign to win over California voters. In the Legislature, four supportive Democrats will likely move to other offices this year, including a Senator and Assemblymember who are each joining the Los Angeles City Council, but Leno is still confident.

“We stand prepared with legislation already drafted to move forward with a bill if that’s what the coalition decides,” Leno said. “And we are confident we have the 27 votes we need [in the Senate], maybe even 28.”

City Attorney’s Office Press Secretary Matt Dorsey has been doing regular email briefings for journalists who are here from around the world, ready to report from the place where it all began as soon as the ruling comes down.

City Attorney Dennis Herrera, Chief Deputy City Attorney Terry Stewart, and their team are prepared to analyze the ruling as soon as it is released just after 7am (Pacific time) and to deliver the first press briefing on the steps of City Hall at 7:30-8am. Mayor Ed Lee, Newsom, and other officials will host a live viewing of the ruling at 7am in City Hall, following by their own press conference.

Dissecting the ruling could be a tricky task given that there at least four major scenarios that the ruling could trigger, each of those with lots of sub-scenarios that depend on the scope and details of the ruling. Everything for legalizing same-sex marriage across the country to a technical ruling that kicks it all back to a lower court are possible.

“In 10 years [working for the City Attorney’s Office], I’m never seen an outcome that could go in so many different directions,” Dorsey told us.

If the ruling invalidates Prop. 8, that decision would be formalized in about a month, then returning jurisdiction over the case to the Ninth Circuit Court of Appeal, which will then issue a formal notice of decision that gives it the force of law, according to a June 11 memo the City Attorney’s Office wrote for other city officials.

It notes, “Depending on how the Supreme Court decides the case, marriages could resume as soon as mid-to-late July.”

More SF restaurants settle with the city over fraudulent employee health surcharges

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City Attorney Dennis Herrera today announced another batch of settlements with restaurants that have been fraudulently using surcharges on customers’ bills to cover their city-required employee health coverage and using some of that money to simply pad their profits.

Seventeen San Francisco restaurants that took advantage of Herrera’s partial amnesty offer — settlements are half of what the violators should owe, based on voluntarily submitting records by last month’s deadline — will be paying tens of thousands of dollars each to the employees’ they ostensibly collected the money for, joining two other restaurants that had settled with the city earlier this year.

Among this latest batch of restaurants is Burgermeister, whose $134,088 settlement is the largest of this group; and Burma Superstar, whose $10,045 is the smallest. Other restaurants paying up as part of the settlement are 5A5 Steak Lounge, Amber India, B Star, Bix, Cafe Bellini, Calibri Mexican Bistro, Citizen’s Band, Cafe Flore, Fresca, MarketBar, Nob Hill Café, Press Club, Skool, Tony’s Pizza Napoletana, and Venticello Ristorante.

In total, Herrera’s office has recovered about $844,000 that will be split among about 1,500 employees.

Another dozen restaurants suspected of misusing the surcharges were given a clean bill of health: Bluestem Brasserie, Cafe Claude, Cupola Pizzeria, Firefly Restaurant, Gitane Restaurant and Bar, Lark Creek Management LLC, Lark Creek Steak, NOPA, One Market Restaurant, Plant Cafe, Ristobar, and Twenty Five Lusk.

There are still more than 30 restaurants that responded to the amnesty offer that remain in negotiates with Deputy City Attorney Sara Eisenberg, with more settlements expected in the coming weeks and the possibility of lawsuits being filed against restaurants that won’t settle.  

The full press release follows:

 

 

Restaurant workers net $844K restitution in 19 surcharge enforcement settlements so far

Herrera praises good faith efforts by restaurants ‘to do right by their employees’; announces ‘clean bills of health’ for 12 other establishments targeted in investigation

SAN FRANCISCO (May 8, 2014) — City Attorney Dennis Herrera today announced settlement agreements with 18 local restaurant businesses that voluntarily took part in his office’s surcharge enforcement and amnesty program, which seeks to remedy shortfalls between amounts collected from customers to cover the cost of complying with San Francisco’s universal healthcare law, and funds actually expended to provide health care benefits to employees.  Together with an earlier settlement announced in January, Herrera’s restaurant surcharge enforcement effort has now netted a total $844,644 to be distributed among approximately 1,500 eligible employees by 19 different companies.

The program announced in January included a one-time 50 percent amnesty offer for establishments with significant shortfalls — provided they fully cooperate with city investigators; agree to good faith compliance with the employer spending requirement of San Francisco’s Health Care Security Ordinance moving forward; and directly compensate their current and former employees who were the intended beneficiaries of the surcharges paid by customers.  All agreements announced today resolve potential disputes with the City over collected surcharges without admissions of liability.  

“I commend these businesses for working cooperatively with us so early in the process, and for understanding our duty to enforce the law even-handedly,” said Herrera.  “Today’s settlements reflect good faith efforts by restaurant owners and managers to do right by their employees, and to honor the intent of fees charged to their customers.  I recognize that complying with groundbreaking programs like Healthy San Francisco can sometimes present new and unique challenges.  So, I’m grateful to these businesses for their cooperation in reaching settlement agreements with us.  I’m glad to continue patronizing these establishments, and I hope other San Franciscans and visitors will join me in doing so, too.”

Some of the 19 establishments that reached settlements under the program include: 5A5 Steak Lounge, Amber India, B Star, Bix, Bugermeister, Burma Superstar, Cafe Bellini, Cafe Flore, MarketBar, Mina Group, Nob Hill Cafe, Patxi’s Chicago Pizza (announced in January), Press Club, Skool, and Tony’s Pizza Napoletana.

Twelve establishments receive ‘Clean Bills of Health’ following investigation
Herrera also announced that 12 businesses targeted for investigation on the basis of the health care expenditure shortfalls they reported to San Francisco’s Office of Labor Standards Enforcement had received “clean bills of health.”  Recipients of such letters were informed by Herrera’s office that after extensive review of additional evidence provided in the course of the City Attorney’s investigation, surcharge-related consumer fraud did not appear to have been committed during the relevant time periods.  In most instances, shortfalls reported to OLSE by businesses that received “clean bills of health” were attributable to their inadvertent reporting or accounting errors.

Establishments so far issued “clean bills of health” are: Bluestem Brasserie, Cafe Claude, Cupola Pizzeria, Firefly Restaurant, Gitane Restaurant and Bar, Lark Creek Management LLC, Lark Creek Steak, NOPA, One Market Restaurant, Plant Cafe, Ristobar, and Twenty Five Lusk.

Surcharge Fraud Enforcement Program background
Herrera announced the program at a City Hall news conference on Jan. 25 with Assemblymember Tom Ammiano, Supervisors David Campos and David Chiu, and representatives from San Francisco restaurants and the Office of Labor Standards Enforcement.  Ammiano first authored legislation in 2005 as a member of the Board of Supervisors that would ultimately lead to the City’s Health Care Security Ordinance, or HCSO, which passed in 2007 with policy input from then-Mayor Gavin Newsom.  Board President Chiu and Supervisor Campos have both been active in subsequent proposed amendments to strengthen and improve the law.  In launching the enforcement and amnesty program, Herrera lauded the Golden Gate Restaurant Association for working productively to share its helpful input, even after years of legal disputes over the law that ultimately ended in the U.S. Supreme Court.  

Status of enforcement efforts and investigation
In addition to the establishments involved with today’s announcement, more than 30 other businesses applied for Herrera’s amnesty program before the April 10, 2013 deadline.  The City Attorney’s Office expects a significant number of additional settlement agreements in the coming weeks, pending further analysis of surcharge funds that establishments collected and expended over the relevant time period.    

Herrera’s one-time offer of 50 percent amnesty has now expired, and the favorable settlement terms are no longer guaranteed to non-participating establishments with significant shortfalls between health care-related collections and expenditures.  Announcing his enforcement and amnesty program in January, Herrera said that restaurants and other businesses found to have committed HCSO-related surcharge fraud during the years 2009 to 2011 that failed to come forward before the deadline voluntarily would risk being sued for full restitution of the amount of surcharges collected during that period, together with potentially substantial penalties, costs and attorneys’ fees.  A small number of defiant, non-participating businesses remain under consideration by the City Attorney for further enforcement action or litigation.

“For restaurants that haven’t yet come forward, it’s still very much in their interest to do so voluntarily,” Herrera said.  “I can’t guarantee the same favorable terms reflected in today’s settlements, but cooperative engagement is better and more cost-effective than lawsuits.”  

Michael Mina reaches settlement after overcharging customers at his SF restaurants

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Celebrity Chef Michael Mina and his four San Francisco restaurants – Michael Mina, RN74, Bourbon Steak, and Clock Bar – have agreed to pay $83,617 to their employees to settle charges of overbilling their customers a 4 percent meal surcharge ostensibly intended to cover the company’s employee health care obligations.

As I reported last week, City Attorney Dennis Herrera is investigating fraudulent use of surcharges by restaurants, and its settlement with Mina Group LLC was the first of what could be dozens with local restaurants to come clean under Herrera’s partial amnesty offer. The company was the city’s worst violator, according to filings last year with the city’s Office of Labor Standards Enforcement, which showed the company collected $539,806 in surcharges and spent just $211,809 on employee health care.

A spokesperson for Mina Group had told the Guardian that a settlement was in the offing and that the company would forward it to us as soon as it was available. Instead, the company leaked the settlement to SFgate.com’s Inside Scoop restaurant column, which posted a story about it on Friday evening, the dead spot in the weekly news cycle.

Mina told Inside Scoop that all the surcharges it collected are being held in a fund for employee health care and the company has lowered its surcharges from 4 to 3 percent to correct the overcharging. San Francisco’s restaurant industry – which waged an aggressive legal battle against the employer health care mandate – is the only industry to use explicit customer surcharges to cover its obligations under city law.

The full joint statement by the City Attorney’s Office and Mina Group follows:

“The City Attorney’s Office and Mina Group announce a settlement regarding surcharges imposed in response to San Francisco’s Health Care Security Ordinance. The settlement terms have been guided in part by findings in which the City Attorney’s Office acknowledges that Mina Group’s employee health care program reflects some best practices in administration of health care surcharge funds.

“Mina Group and its affiliates collected surcharges during 2009 – 2011, as previously reported to the Office of Labor Standards Enforcement (OLSE). The City recognizes that 100 percent of the surcharges collected will continue to be used exclusively for employee healthcare and that the majority has already been used. Under the settlement agreement, Mina Group will contribute $83,617.50 of remaining surcharges to eligible persons who were employees during that period.

“The City Attorney’s Office reaches no conclusions on liability in successfully concluding its enforcement action with Mina Group and its affiliates. Mina Group will continue to fully support the San Francisco Health Care Security Ordinance.”

Chiu and Herrera roll up their sleeves for spring cleaning in City Hall

For some time now, oft-labeled “power brokers” with undue influence in San Francisco city government have taken heat for failing to register as lobbyists. At the same time, politically connected insiders are often criticized for manipulating the permitting process for major real estate developments far outside the public gaze.

It’s said that sunshine is the best disinfectant. Yesterday, City Attorney Dennis Herrera and Board of Supervisors President David Chiu introduced a package of reforms designed to shed more light on lobbyists’ practices.

The new set of rules would tighten up lobbying regulations, create new disclosure rules for developers and their lobbyists, create more oversight around city contracting and grant-making, and require the publication of a guide for campaign donors spelling out Ethics laws regarding campaign contributions.

“We’re not demanding of anybody else anything different than we would demand of ourselves,” Herrera said, adding that he and Chiu had been working on drafting the proposal for months.

Chiu and Herrera both vied for the city’s highest office in competition with Mayor Ed Lee in 2011. Since beginning his term as mayor, Lee has drawn sharp criticism for his cozy relationships with former San Francisco Mayor Willie Brown, Chinatown consultant Rose Pak and a handful of others who are not registered as lobbyists.

Without mentioning anyone by name, Chiu noted, “I do think there are individuals who have not registered as lobbyists who probably should.”

The proposed rules would broaden the definition of “lobbyist” under the city’s Ethics regulations. The new definition would include “any individual who makes contact with” an elected official on behalf of an employer or anyone else paying them “for lobbyist services.” If someone makes $1,000 or more per month for lobbying, that person would be considered a lobbyist under the law.

The new legislation would also create new disclosure requirements for “permit expediters,” who work on behalf of developers to hasten the permitting process for major real estate construction. They would have to register with the city’s Ethics Commission and file regular reports about their contacts with city officials. Developers with major planning projects in the pipeline would also have to disclose donations of $5,000 or more to city-based nonprofits.

Chiu noted that he and Herrera had consulted with Friends of Ethics, a group of government accountability advocates that’s been pushing for Ethics reform, for help drafting the proposal.

Chiu and Herrera also acknowledged that better enforcement of existing laws was needed in addition to the proposed legislative reforms. “Our city could be more proactive in enforcing our Ethics laws to the fullest,” Chiu said. “Not just the letter of the law, but the spirit of the law.”

Check, please

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steve@sfbg.com

San Francisco restaurants that have been cheating their customers and employees — charging diners for city-required healthcare coverage that they aren’t fully providing to workers — will finally be exposed in the coming weeks, with some notable names in foodie circles among the likely culprits.

City Attorney Dennis Herrera is working on settlements with dozens of restaurants that responded to his investigation and partial amnesty offer, which had an April 10 deadline. His effort augments the complaint-driven enforcement actions by the city’s Office of Labor Standards Enforcement, which has collected millions of dollars for thousands of employees of negligent local businesses in recent years.

At issue is the Healthcare Security Ordinance, the landmark 2008 law authored by then-Sup. Tom Ammiano that requires San Francisco businesses to provide a minimal level of healthcare benefits to their workers. Businesses are also required to report spending and surcharge figures to the OLSE annually, with the next report due April 30.

Last year’s data show celebrity chef Michael Mina’s Mina Group LLC — which includes the restaurants Michael Mina, RN74, Bourbon Steak, and Clock Bar — to be the top violator, collecting $539,806 in surcharges from customers and spending just $211,809 on employee healthcare.

Herrera used that list to ask more than 70 businesses to show they are in compliance with the law or reach discounted settlements now to avoid punitive fines or criminal charges later, and Herrera told us he received 60 responses and had his inquiry snubbed by fewer than a dozen.

“It’s too early to talk about how large a recovery we’ll be getting for workers, but I’m pleased with the response rate,” Herrera told us. He refused to estimate how many of the respondents were found to be in violation, but in an April 11 message to reporters covering the issue, his spokesperson Matt Dorsey wrote, “Based on our investigation so far, we anticipate that the majority of these establishments will be required to pay money to compensate their workers.”

WHAT THE FIGURES SHOW

The Guardian contacted many of the restaurants that topped the OLSE list. Some wouldn’t respond, some said they’ve changed their policies since the controversy erupted, and some wouldn’t talk until after a settlement is announced — including the Mina Group. That seems to indicate they’re about to pay for past violations.

Nicole Kraft, who handles public relations for the Mina Group, responded to Guardian inquires by writing, “I wanted to let you know that Mina Group will soon be releasing a joint statement with the City Attorney’s office, which should answer many of your questions. We’ll be sure to send it your way ASAP.” [UPDATE 4/29: Mina Group settled its case for $83,617.]

Sources in the City Attorney’s Office say settlements with as many as 10 restaurants that admit clear violations of the HCSO could be announced in the next week or two, while another 10 or so have provided data showing they are not in violation. The rest are more complicated and could take weeks or months of investigations, which are being led by Deputy City Attorney Sarah Eisenberg.

“There are going to be some that are given a clean bill of health,” Herrera told us. Herrera also told us that his investigation is just getting started and that it will look at businesses that haven’t made required annual reports to the OLSE. “When we get to a place where we’re announcing settlements, we’ll have more to say,” he said when asked for details and dimensions of his investigation.

GGRA Executive Director Rob Black has maintained that the OLSE figures don’t accurately reflect whether businesses are in compliance because the reporting requirements are confusing. GGRA held a compliance workshop on April 17, and Black told us about 40 restaurateurs attended.

“It was very informative and we got really good feedback from the restaurants,” Black told us. “We had people saying, ‘knowing what I know now, we should redo my 2011 form because I did it wrong.”

Black was initially critical of Herrera’s focus on the restaurant industry, but told us last week, “He made a commitment that the process would be efficient and fair, and he’s lived up to that so far….I still believe that the majority [of violators] didn’t have a mal-intent…Many people on the list that was reported have done nothing wrong.”

Cheesecake Factory — which was seventh on last year’s OLSE list, allegedly taking in $159,242 more in surcharges than it spent on employee health care — insists that it is in compliance and expects the City Attorney’s Office to confirm that.

“We believe the City Attorney’s initial review was erroneous,” Richard J. Frings, the company’s vice president of compensation and benefits, told us. “We are in full compliance with HCSO. Our healthcare costs in San Francisco have far exceeded the surcharge that we have collected. Once the City Attorney’s office has an opportunity to review our filings, we believe this matter will be closed without any further action.” He refused to provide figures to support the assertions.

THE HSA PROBLEM

Most of the restaurants that have been accused of stiffing employees use health savings accounts, which health officials say is a far worse option than private health insurance or the city’s Healthy San Francisco plan, which was created in conjunction with HCSO. Federal law bars cities from prescribing how health benefits are delivered.

San Francisco’s restaurant industry has always been hostile to the HCSO’s employer mandate, with the Golden Gate Restaurant Association unsuccessfully challenging the law all the way to the US Supreme Court. Controversy then erupted in 2011 with revelations (first in the Wall Street Journal, followed up by local media outlets) that some of the city’s most high-profile restaurants were shirking their responsibilities even as they charged diners 3 percent to 5 percent surcharges, sometimes essentially pocketing that money at the end of each year.

That verges on consumer fraud, but District Attorney George Gascon has refused to investigate, telling the Guardian and other papers that he was deferring to the OLSE and the City Attorney’s Office.

In 2011, a progressive-led majority on the Board of Supervisors passed legislation authored by Sup. David Campos to require that businesses keep the money they are required to spend on employee healthcare — which is currently $2.33 per employee-hour for large companies or $1.55 per employee-hours for businesses with less than 100 employees — for employees to use as needed.

But under aggressive lobbying by the GGRA and San Francisco Chamber of Commerce — which asserted the right of business owners to raid these funds, calling the set-aside a multi-million-dollar annual loss to the local economy — Mayor Ed Lee vetoed the measure. He later signed watered-down legislation requiring the money be set aside for two years, setting standards for letting employees know how to access the funds, and explicitly calling for all customer surcharges to remain in escrow accounts.

The OLSE, which also monitors compliance with the city’s paid sick leave and minimum wage laws, can only investigate businesses when an employee files a complaint. But then complaints trigger investigations that cover all of a given business’s employees, who are often compensated for past violations. To file a complaint, just write hcso@sfgov.org or call (415) 554-7892.

OLSE figures show the agency has investigated more than 100 complaints since 2008, resulting in $8.1 million in health care benefits provided to more than 6,400 employees and $244,000 in penalties paid to the city. Herrera’s office also reached a $320,000 settlement with the owners of Patxi’s Chicago Pizza in January, just before announcing his broader investigation.

“The vast majority of San Francisco employers have complied with their obligation to make health care expenditures pursuant to the HCSO,” OLSE Manager Donna Levitt told the Guardian. “With respect to the minority of businesses who fail to meet their obligations, the OLSE works tirelessly to ensure that workers receive the benefits to which they are entitled and that all businesses compete on a level playing field.”

Among the restaurants near the top of the OLSE list that did not respond to the Guardian inquires are Squat & Gobble, Wayfare Tavern, and Trinity Building Services.

“We are actually in complete compliance,” Larry Bouchard, manager of One Market restaurant, told us, explaining its inclusion on the OLSE list by saying, “It’s my understanding that we reported the wrong information.” He said the restaurant uses health savings accounts, but that they are widely used by employees, who get their expenditures repaid within three weeks.

Scott Carr, general manager of Boulevard — who sources say was one of the first restaurants to use the healthcare surcharges on customer bills, and whose parent company, Reroute LLC, was fifth on the OLSE list, underspending by $169,777 — told us the figures didn’t fully reflect the company’s spending on employee health care.

He wouldn’t say whether the company will be settling with Herrera for any past violations, but he did say that the restaurants decided to abandon health savings accounts in favor of health insurance policies for employees starting on Jan. 1. As he told us, “We feel we’ve made a positive step.”

Rally and vigils for marriage equality in S.F. this week

The U.S. Supreme Court will hold back-to-back hearings this week as justices consider Prop 8 and the Defense of Marriage Act (DOMA), setting the stage for historic discussions concerning LGBT civil rights. Tonight, hundreds are expected to gather at Castro and Market streets for a 6:30 p.m. rally, followed by a march to City Hall. Prop 8, a state constitutional amendment banning same-sex marriage, passed in California with 52 percent of the vote in November of 2008. Challenges to the discriminatory law have been working through the court system ever since.

LGBT activists also plan to mark Tuesday and Wednesday evenings with vigils outside the California Supreme Court building. The vigils will coincide with about 150 events scheduled throughout the country, organized to demonstrate support for marriage equality.

Shortly after longtime gay rights activists Cleve Jones and David Mixner put out the call to local activists that the Supreme Court would be hearing arguments on Prop 8 and DOMA, Patrick Connors started helping to organize the rally, march and vigils in tandem with activists Greg Chasin, Billy Bradford, Aaron Baldwin and others, Connors said. Over the past several weeks, they’ve been posting fliers, Tweeting to get the word out and urging support for marriage equality as the historic twin hearings get underway in D.C. 

“We’re cautiously optimistic that there will be hundreds of people in the Castro” for the Monday night rally, Connors told the Guardian. About 200 have also signalled interest in attending the vigils March 26 and 27.

San Francisco has been at the epicenter in the battle for marriage equality. Just after Prop 8 passed, it was immediately challenged in parallel court proceedings by same-sex couples and the city of San Francisco, with City Attorney Dennis Herrera leading the charge with support from other California municipalities.

Connors and his husband, Robert Dekoch, were initially married in February of 2004, but their marriage was invalidated after the California Supreme Court held that city officials lacked the authority to issue marriage licenses to same-sex couples. Following a subsequent court victory that opened the gates for same-sex couples to be married in San Francisco City Hall once again, Connors and Dekoch returned and were re-married in August of 2008.

Although Prop. 8 passed the following November, banning same-sex marriage, “our marriage, along with 18,000 others, is recognized by the state of California,” Connors explained. Yet their marriage still isn’t recognized at the federal level, so “there’s the potential of what could happen” during out-of-state travel, he said.

In May of 2009, Connors was arrested along with some 200 protesters who took to the streets following a California Supreme Court decision upholding Prop 8. “A whole bunch of us sat in the middle of Van Ness,” he recounted, “And blocked traffic for hours until the paddy wagons came.”    

Just ignore the Chamber of Commerce

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The Chronicle made a big deal of the fact that the Chamber of Commerce has a “21-point advocacy agenda” that “could weaken” the city’s “boundry pushing legislation and pro-labor policies.”

But really, nobody should even care.

The Chamber’s been pretty irrelevant to local politics for years now, and there’s no way six members of the Board of Supervisors are going to take the backward-thinking group up on its efforts to contract out city services and slow down cutting-edge proposals.

Actually, most of the “21-point agenda” is pretty tame. The Chamber, for example, wants to “Work with city government and advocacy groups to improve the ability of residents and visitors to move efficiently around the City by car, transit, bike and taxis.” And it hopes to “Continue to promote San Francisco’s small businesses through formulating favorable public policies and providing ample networking opportunities.” Wow. Hold the front page.

As for the things that might actually matter, forget it. Contracting out comes up almost every year at budget time; every year, a unified labor community shoots it down. This year will be the same. And nobody’s going to get City Attorney Dennis Herrera to release a public analysis of every piece of legislation before it’s approved.

Herrera’s better than his predecessors, by far, but he’s a lawyer, and lawyers don’t like to share with anyone the advice they give their clients. I often wish Herrera’s office would release more than it does, but unless the supervisors declare that they no longer want confidential advice from their attorney (which has its charm, to be sure, but also some real downsides) then the current policy will continue. Herrera will privately tell board members that there might be legal risks to some of their bills; the elected supervisors will decide whether to take those risks or not.

While I’m always an advocate of open government, the city attorney is not the Supreme Court. In the really bad old days, a city attorney named George Agnost used to routinely shut down progressive legislation by announcing that it was unconstitutional, leaving even conservative members of the board to denounce him. When the supes pass something, it’s a presumptively valid law. If you don’t like it, you can sue. The courts — not the city attorney — decide what’s legal and what isn’t.

And I have no idea where the Chamber’s Jim Lazarus came up with this:

But prior to Herrera and his predecessor, Louise Renne, city attorneys regularly issued public opinions, said Lazarus, a deputy city attorney in the 1970s who lost to Herrera in the 2001 election.

That’s completely untrue. I know; when Agnost was city attorney (in the 1970s and early 1980s) I tried constantly to get copies of his legal opinions. The vast majority were never released. That office was so secretive the city attorney wouldn’t even tell you his name if it wasn’t written on the door. When I pushed the issue, Agnost told me that copies of every non-confidential opinion he’d ever written were available at the public library. I went there. There were exactly three opinions on file, all of them noncontroversial and unrelated to any pending legislation.

Look, we all know that Gavin Newsom pushed the boundries of law when he approved same-sex marriages. But the California Supreme Court, faced with San Francisco’s civic disobedience, changed the law and said marriage was a basic right. And the US Supreme Court is about to do the same thing. Is the Chamber arguing that Newsom was wrong?

The Chamber is yesterday’s news. I don’t even know why we pay attention any more.

 

 

 

SF aims for the history books, filing its same-sex marriage brief with the Supremes

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San Francisco City Attorney Dennis Herrera and his legal team today submitted written arguments to the US Supreme Court in the landmark same-sex marriage equality case it will consider this spring, with the hopes that their phrases and framing of the issue will be echoed in a civil rights ruling that could go down in history.

He argues that Proposition 8 – the California ballot measure that undid the California Supreme Court ruling legalizing same-sex marriage in a case that grew out of San Francisco’s unilateral decision to start marrying lesbians and gay men in 2004 – was unconstitutionally about “asserting the inferiority of same-sex couples….But relegating gay couples to a lesser status simply to brand them as different and less worthy than opposite-sex couples is not a legitimate purpose.”

Herrera, Deputy City Attorney Therese Stewart, and the rest of the city’s legal team also take up the notion of the “tyranny the majority” (which I explored in an earlier Guardian story on the issue) in their brief, arguing: “Petitioners’ argument derogates the most important role this Court serves in our democracy: to protect the constitutional rights of minorities from encroachment by an unsympathetic majority. The responsibility to protect individual rights does not transfer to the political process when the dispute happens to be ‘controversial.’  Quite the contrary.  In this circumstance more than any other, constitutional rights ‘may not be submitted to vote; they depend on the outcome of no elections.’ West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).”

Will the Supreme Court justices borrow any of these words or ideas in their ruling, as they sometimes do in such cases, placing them in history books alongside phrases such as “separate but equal is inherently not equal,” from the 1954 Brown v. Board of Education ruling ending racial segregation, which echoed the 1896 Plessy v. Ferguson ruling that it overturned?

Herrera told us that he couldn’t help but feel that sense of momentousness as he finalized the brief: “You have a sense as to the importance of what you’re working on, and that certainly has an impression on you.”

But he also said that he’s continually had that sense through this “long struggle,” during which he said that he’s remained focused on the LGBT community that he’s fighting to protect. “It’s been frustrating when you see how some folks perpetuate the discrimination that’s gone on too long,” he told us, adding that “to finally see it come to the Supreme Court is momentous.”

And Herrera said that he does hope the Supreme Court issues a broad ruling that finally settles this issue and removes the question of same-sex rights from the political realm and deems them to be an issue of equal protection under the law. “They’ve asked the court to abdicate its responsibility because same-sex marriage is controversial,” Herrera told us, arguing that’s why the Constitution offers equal protections to all citizens, regardless of the passions or societal biases of the moment. “Those constitutional rights are not subject to majority rule.”

You can read city’s full 62-page legal brief here.

 

Herrera steps up his crackdown on surcharge fraud by restaurants

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City Attorney Dennis Herrera has stepped up his efforts to ensure San Francisco restaurants aren’t committing consumer fraud with their healthcare surcharges – by pocketing money collected from diners ostensibly to cover their city obligation to provide health coverage to employees – offering an amnesty period for following city law.

At a City Hall press conference on Friday – flanked by Sups. David Campos and David Chiu, Assembly member Tom Ammiano, and local restaurant employees – Herrera announced an investigation and enforcement effort targeting dozens of local business who have reported spending less on employee health care than they collect from customers for that purpose. They will receive letters this week urging voluntarily compliance during an amnesty period, after which they could be hit with lawsuits and civil penalties.

“The enforcement program we’re launching today isn’t simply to protect employees and consumers from surcharge fraud – it’s also to protect the vast majority of competing restaurants that follow the law and provide health care benefits to their workers,” said Herrera. “We San Franciscans take great pride in a vibrant local restaurant scene that enriches our neighborhoods, employs thousands of our residents, and serves millions of tourists each year. And it’s unfortunate that the illegal business practices of a relative handful of bad actors require the creation of this enforcement initiative.”

The City Attorney’s Office is refusing to release the list of restaurants that will receive the letters, calling it an ongoing investigation that exempts the list from public disclosure. But the office did furnish reporters who asked with a spreadsheet from the city’s Office of Labor Standards Enforcement, which ensures compliance with the landmark Health Care Security Ordinance that Ammiano authored as a supervisor, going into effect in 2008 and creating the Healthy San Francisco program.

That list includes many well-known restaurants. Topping the list is Mina Group LLC (which includes restaurants Michael Mina, RN74, Bourbon Steak, and Clock Bar) collecting $539,806 and spending $211,809, Wayfare Tavern collecting $303,207 and spending $68,018, Layers LLC (owners of Paxti’s Pizza, which Herrera’s reached a settlement with two weeks ago), Squat & Gobble collecting $160, 498 and spending nothing on employee health care. Others on the list include Cheesecake Factory, Max’s Opera Cafe, Asia SF, Burgermeister, Folsom Pie, Cafe Bellini, and One Market Restaurant.

Golden Gate Restaurant Association Executive Director Rob Black lashed out at Herrera’s office for releasing that list and media outlets for publishing it, claiming that he’s talked to many of those restaurateurs and that they had filled out the forms wrong or that they simply hadn’t yet spent the surcharges collected even though the funds may be set aside for employee health care.

“They aren’t committing fraud, which is the accusation by the city attorney, just because of errors in filling out a form,” Black said, urging the public to reserve judgment until the investigation is complete.

But it’s hard to feel too bad for GGRA or the member restaurants that aggressively contested and then sued the city over the health care law, appealing it all the way to the Supreme Court, then turned around when they lost and used deceptive (and sometime fraudulent) surcharges to single out those costs for customers.

According to a press release put out by Herrera’s office:

“The City Attorney’s target letter outlined conditions worst-offender restaurants must take steps to meet by a deadline of April 10, 2013 to come into legal compliance, and avoid civil litigation by Herrera’s office for pocketing customer surcharge money intended to fund employee health care benefits.  
* Worst-offenders must provide an accounting to City Attorney investigators for all health care surcharges collected during the period from 2009 to 2011, along with health care expenditures pursuant to the Health Care Security Ordinance, or HCSO, for that time period.
* Worst-offenders must distribute 50 percent of unallocated health care surcharge funds  to employees who worked for the company during the time surcharges were imposed on customers, covering the years 2009 to 2011, in accordance with City Attorney instructions.
* Worst-offenders must remit amounts unredeemed by their eligible employees to the San Francisco City Attorney’s Office for the purpose of funding future enforcement of the HCSO and other consumer protection laws.
* Worst-offenders must attest that they will refrain from committing further consumer fraud and remain in full compliance in good faith with the HCSO going forward, in accordance with City Attorney instructions.”

In his press conference, Herrera emphasized the “relative handful” of restaurants targeted by his office, just a few dozen in a city with thousands of restaurants. But he also said that his office is aware of restaurants that use the surcharge without even reporting to the OLSE as required, so both the amnesty program and his investigation goes beyond just the restaurants who get letters.

“I’m tremendously gratified by this very statesmanlike and generous gesture by the City Attorney’s Office, Mr. Herrera in particular,” Ammiano said. “I feel somewhat parental toward this program, the Health San Francisco program. It was a hard fight to get it and it’s been successful, so any attempts to sully it, minimize it, or water it down get my dander up.”

Herrera takes on restaurants that use bogus healthcare surcharges

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City Attorney Dennis Herrera fired a warning shot across the bow of San Francisco restaurants that use a customer surcharge ostensibly to pay for employee health care – while in reality, many restaurateurs simply pocket the money and offer substandard health care options to employees – over the weekend when his office announced a settlement with Patxi’s Chicago Pizza.

The tone of the press release announcing the $320,000 settlement was generally positive, with Patxi’s claiming it was an innocent error and Herrera praising the owner’s cooperation in an agreement that improves the health care coverage of Patxi’s employees, compensates employees for the error, and ensures all surcharges tacked onto customers’ bills go to employee health care. Yet Herrera also included a warning to other restaurants.

“But today’s settlement should send a strong message that San Francisco is serious about making sure that restaurants keep their promises to their customers about health care surcharges. I look forward to announcing a larger, more global effort in the coming days to address this issue, to make sure health care surcharge money goes to the workers rather than being pocketed by business owners,” Herrera said in the release, signaling an effort to resolve with civil enforcement something that the political system has failed to do.

This became a hugely contentious issue in 2011 when the Golden Gate Restaurant Association (GGRA) and San Francisco Chamber of Commerce aggressively opposed reform legislation by Sup. David Campos that would have required that all surcharges be spent on health care and prevented employers from raiding health savings accounts at the end of each year. Mayor Ed Lee vetoed that measure but signed a watered down version by Sup. David Chiu – moves that Herrera criticized while running for mayor.

GGRA (whose Executive Director Rob Black didn’t return our call) aggressively fought the city’s Health Care Security Ordinance requirement that employers provide minimal health coverage to their workers, taking it all the way to the US Supreme Court. After losing that battle, many restaurants began adding a 3-5 percent surcharge of customers’ bills, even while offering employees what experts say is the worst form of health coverage, healthcare savings accounts, and often blocking their employees efforts to use them.

An investigative report in the Wall Street Journal showed how many San Francisco restaurants were essentially committing consumer fraud by pocketing the surcharges, elevating the issue, but the District Attorney’s Office has consistently refused to treat this as a criminal matter, despite calls for action by the Civil Grand Jury. So Herrera’s willingness to use civil sanctions, and his warning of more to come, was enthusiastically welcomed by Campos and other advocates.

“I’m very happy with what the City Attorney’s Office is doing,” Campos said. “It’s time for this kind of legal action.”

Campos had already pledged to reevaluate the issue later this year as data comes in about how the compromise regulations by Chiu and Lee are working, threatening to take it to the ballot if necessary and calling it an important issue for all San Franciscans.

“It’s not just about protecting workers and consumers, but also protecting businesses that play by the rules and comply with the law,” said Campos, noting that many restaurants have admirably refused to use the surcharge, shortchange their employees, or support GGRA’s litigation against the city. “It’s about fairness.”

Final step?

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steve@sfbg.com

President Barack Obama is fond of reciting the Martin Luther King Jr. quote, “The arc of history is long, but it bends toward justice.” On the issue of marriage equality, that arc looks more like a zig-zagging path that began when San Francisco unilaterally began issuing marriage license to same-sex couples just before Valentines Day in 2004 and ending — its backers hope — in June 2013 with the US Supreme Court affirming the basic constitutional right of everyone to marry whomever they want and to have those marriages treated equally under the law.

“We’ve seen the ups and the downs, the highs and the lows,” said City Attorney Dennis Herrera, who has watched court injunctions blocking marriages by the city, the California Supreme Court ruling that the ban on same-sex marriage violated the state constitution, the 2008 vote amending the constitution through Proposition. 8, and the Ninth Circuit Court ruling that the measure violated federal equal protection standards.

Yet few officials or legal experts are willing to predict with any certainty that this long and winding road will end with a definitive conclusion in June. In fact, Herrera and other same-sex marriage supporters expressed disappointment Dec. 7 when the Supreme Court announced it had decided to review the Ninth Circuit Court ruling that Proposition 8 was unconstitutional.

Letting the ruling in Perry v. Brown stand would have re-legalized same-sex marriages in California, which would have joined the nine other states and the District of Columbia as places where it’s legal for gays and lesbians to get hitched. Yet in taking the case — along with U.S. v. Windsor, which challenges the Defense of Marriage Act and its prohibition on recognizing the inheritance law and tax code rights of same-sex spouses — the court could issue a landmark civil rights ruling striking down all laws that discriminate against same-sex couples.

That’s the hope of California Attorney General Kamala Harris. “Are we a country that is true to its word and true to its spirit, or not?” was how Harris framed the question at a Dec. 7 press conference with Herrera. She focused on the basic equal protection argument and the need to “stand for the principle that we are equal and we will be treated that way.”

Herrera, who had just gotten off a conference call with lead attorneys Theodore Olson and David Boies and the rest of the advocates who are defending same-sex marriage, told reporters that the main goal was a broad ruling: “Ted Olson has made it clear he’s going to make a very broad argument.” Yet the Supreme Court could also issue a narrow ruling, extending the twisty path of this issue.

As for reading the tea leaves, Deputy City Attorney Terry Stewart, who has litigated the city’s position since the beginning, said she doesn’t think anyone knows how this case is going to be resolved — not even the Supreme Court justices themselves. “I don’t think they know, to be honest with you,” Stewart said when asked whether taking the Perry and DOMA cases indicate a willingness to finally settle the broad question of whether same-sex couples should be treated equally to heterosexual couples.

She noted that the Supreme Court waited until the last minute — its decision had initially been expected on Nov. 30 — to decide to take the cases: “They took a long time, so clearly they’re wrestling with it.”

Like many observers, Harris speculated that Justice Kennedy is the likely swing vote if the court reaches a 5-4 ruling on the issue, and some have speculated that Chief Justice Roberts could also be a surprisingly liberal vote on the issue, as he was earlier this year in upholding Obamacare. And the advocates say their optimism is reinforced by the long and meticulous case for marriage equality that advocates put together in the courtroom of federal Judge Vaughn Walker, whose 2010 ruling the Ninth Circuit upheld.

“We worked really hard to put in the best possible case,” Stewart said, while Herrera said, “I can think of no better case to take up than this case…The confidence level of all of us is high.”

Yet even if it turns out that there are a few more turns to navigate before justice prevails on what Harris called “the civil rights struggle of our time,” the advocates are pledging to win marriage equality in California next year, even if that means going back to the ballot. “We’re going to win this fight one way or another,” Sup. Scott Wiener said at the press conference, with Sup. David Campos later adding, “the question is whether the Supreme Court chooses to be on the right side or history or the wrong side of history.” It was a theme that Lt. Gov. Gavin Newsom — who started us down this path with his unilateral decision as mayor to issue marriage licenses to same-sex couples — echoed in public statement he released: “Today’s announcement starts the clock towards the final decision for California. History will one day be divided into the time before marriage equality and the period that follows. And thankfully, we will be on the side of history worthy of being proud of.”