City Attorney Dennis Herrera

Herrera and other officials disappointed but hopeful as Supreme Court takes marriage equality case

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City Attorney Dennis Herrera, Deputy City Attorney Theresa Stewart, California Attorney General Kamala Harris, and other officials who held a press conference at City Hall today admitted they were disappointed that the US Supreme Court has decided to review the Ninth Circuit Court ruling that Proposition 8, the 2008 measure banning same-sex marriage in California, was unconstitutional.

“But we can’t let that obscure the tremendous progress that we’ve made in California on marriage equality,” said Herrera, who has been at the center of a struggle that began in 2004 when then-Mayor Gavin Newsom decided the city should begin unilaterally issuing marriage licenses to same-sex couples, in defiance of state and federal law.

“I’d be lying if I didn’t say I was a little disappointed,” said Stewart, who has been the city’s main litigator on the issue as it moved through court injunctions blocking marriages by the city, the California Supreme Court ruling the ban on same-sex marriage violated the state constitution, the vote amending the constitution through Prop. 8, and the Ninth Circuit ruling Prop. 8 violated federal equal protection standards.

Herrera and Stewart both expressed confidence that the Prop. 8 case that the Supreme Court will review, Perry v. Brown, was put together in a solid, meticulous way that will make it difficult for the US Supreme Court to disagree with the Ninth Circuit conclusion. “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.”

They also expressed hopes that the strategy of lead attorney Theodore Olsen to make broad arguments that any legal distinctions denying rights to homosexuals are unconstitutional – as opposed to the city’s more narrow approach that Prop. 8 doesn’t pass legal muster, which Herrera called “complementary” to Olsen’s approach – would be successful in making this case a definitive civil rights victory.

“Are we a country that is true to its word and true to its spirit, or not?” is how Harris framed the question, focusing 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.”

She and others called this “the civil rights struggle of our time,” and they pledged to win this issue now, no matter what. “I am optimistic that we’re going to win at the Supreme Court,” Sup. Scott Wiener said, pledging to win the right to marry at the ballot box even if the court doesn’t affirm that right. “We’re going to win this fight one way or another.”

Sup. David Campos, who is also gay, agreed that same-sex marriage will again be legal in California and “the question is whether the Supreme Court chooses to be on the right side or history or the wrong side of history.”

Same-sex marriage: What they’re saying

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Lots of statements getting issued on the Supreme Court’s decision, reflecting both the desire of many elected officials to weigh in on this momentus event and some interesting differences in tone.

Assembly Member Tom Ammiano:

 

“This doesn’t decide anything on its own, but it opens the door for the U.S. Supreme Court to acknowledge that people in every state of this union should be able to form marriage unions with the partner of their choosing and not be limited by outdated customs and laws.”

“It’s a bit disappointing that the Supreme Court isn’t already kicking Prop. 8 to the curb, but I’m hopeful that they will do that after hearing arguments. We can also hope that this court decides that it’s time to say, once and for all, that denying this right to same-sex couples is just as unconstitutional as denying marriage to mixed-race couples – a decision made decades ago.”

State Sen. Mark Leno:

“I am hopeful and encouraged about today’s decision from the U.S. Supreme Court to review the Proposition 8 case, which is one of the most significant equal rights issues to come before the court in many decades,” said Senator Leno. “For the past four years we have argued that Proposition 8 is not only unconstitutional, but that it also violates the basic principles of respect, dignity and validation that every American deserves. I am confident that the Supreme Court will reaffirm these fundamental freedoms and uphold that a person’s right to be treated equally does not vanish simply because of who they are or whom they love.

 

“The momentum for marriage equality has never been stronger in our country. We have support from President Obama, recent victories at the ballot box, and polls that show a majority of Americans are with us. In addition, federal courts continue to strike down laws that discriminate against lesbian, gay, bisexual and transgender people. I am convinced our triumphs will continue.”

 

Mayor Ed Lee:

 

“I am optimistic that the Supreme Court will reaffirm, as the Ninth Circuit Court did, that California’s Proposition 8 is unconstitutional.

“We remain as deeply committed today as we were nearly eight years ago when then Mayor Gavin Newsom jumpstarted one of the most important civil rights movements of our generation. I would like to thank City Attorney Dennis Herrera for his work on this important issue and bringing us to this point. I thank the legal team of Ted Olson and David Boies and the American Foundation for Equal Rights for defending equality in this legal pursuit. 

Same-sex marriage is legal, or will soon be, in nine states — Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington — and the District of Columbia. I look forward to the day when California joins this well-respected list.”

 

Lt. Gov. Gavin Newsom:

 

Today marks the beginning of the end for a California journey that started eight years ago when San Francisco issued same-sex marriage licenses. By agreeing to hear the Proposition 8  case the U.S. Supreme Court could end, once and for all, marriage inequity in California.

Forty-five years after the Supreme Court ruled that marriages between interracial couples were constitutional in Loving vs. Virginia, Justices can once again reaffirm the basic American principal of equality for all.

The singling out a class of Californians for discrimination violates the basic principles of who we are as a nation. It is important at this moment in time to recognize that individuals can be mightier together than apart, that there is strength in our diversity, power when we unite around our shared values and success when we advance together.

 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.

 

 

Assembly Speaker John Perez:

“Today’s announcement that the Supreme Court will take up Hollingsworth v. Perry and the challenges to the Defense of Marriage Act is a reminder that the pathway to justice is long and difficult. The plaintiffs in the initial challenge to Proposition 8, Perry v. Schwarzenegger, presented a powerful and compelling argument that Proposition 8 is unconstitutional, which was eloquently recognized in Judge Vaughn Walker’s ruling in that case. I am very confident that the Supreme Court will rule in favor of our community in Hollingsworth v. Perry, as it is now known, and affirm that Proposition 8 is unconstitutional. But until that outcome is secured, our community must continue to fight for justice on every front, from working to secure the Employment Non-Discrimination Act to addressing the issues of homelessness among LGBT Youth.”

Rep. Nancy Pelosi:

 

 

 

With the Supreme Court’s decision, marriage equality will finally have its day in the highest court in the land. Americans will hear whether inequality and discrimination are consistent with the high standards and deepest values of our Constitution. We remain confident that the justices’ ruling will fall on the side of civil rights and discard DOMA and Prop 8 in the dustbin of history.

“From the start, Republicans have known that DOMA is unconstitutional, and that’s why Republicans have tried to pass legislation to prohibit judicial review of this disgraceful law. Speaker Boehner’s legal team repeatedly failed to convince the courts to keep denying basic rights to American families, all while wasting nearly $1.5 million in taxpayer funds. Now, the Supreme Court will decide whether Edie Windsor deserved to face a penalty of hundreds of thousands of dollars after her partner of four decades passed away. We believe Ms. Windsor and couples like hers will see justice done in this case.

“By taking up the Prop 8 case, the Supreme Court will have the opportunity to make a strong statement that laws, in California and nationwide, must not target the LGBT community unfairly and that families across our state and our country deserve fair and equal treatment under the law.

“We have now reached a landmark moment in the history of civil rights in our nation. Let’s end discrimination and ensure equality for all of America’s families. Let’s get this over with and on to the future!”

UPDATE:

Bay Guardian Controller Sandy Lange:

“Well, at least I don’t have to get married this weekend.”

 

 

Guns in Bayview

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The National Rifle Association’s bid to kill two San Francisco gun control ordinances — which a federal judge initially rejected last week, although that legal process continues — highlights differing views on the issue in the violence-plagued Bayview, where two prominent activists have opposing viewpoints.

One ordinance requires guns in the home to be locked up when not on the owner’s person and the second bans the sale of fragmenting and expanding bullets, affecting only the city’s sole gun store: High Bridge Arms, in the Mission district.

The first ordinance was introduced in 2007 by then-Mayor Gavin Newsom and supported by Sheriff and then-Sup. Ross Mirkarimi and opposed by three supervisors: Ed Jew, Aaron Peskin, and Chris Daly. City Attorney Dennis Herrera was pleased at the judge’s ruling.

“The NRA took aim at San Francisco’s Police Code,” Herrera said in a press release. “I’m proud of the efforts we’ve made to beat back these legal challenges, and preserve local laws that can save lives.”

NRA attorney C.D. Michel told the San Francisco Examiner, “This is not over, not by a long shot…What if you’re old and need glasses in the middle of the night, or you have kids at home to protect? Why are they being forced to keep their guns locked up?”

Interestingly, its not the NRA’s name on the front of the lawsuit, entitled “Espanola Jackson v. City and County of San Francisco.”

Jackson, a San Francisco native and longtime Bayview Hunter’s Point civil rights activist, has been fighting for the rights of minorities since she was old enough to hold a picket sign. She was recognized last May by the San Francisco Human Rights Commission with a “Legacy Award for a Lifetime in Human Rights Advocacy.”

So why is she advocating for unlocked guns in the home, and more lethal bullets?

“I live in the Bayview and I’m 79 years old,” she told The Guardian. “We’re mostly single women, but we need to have protection.”

She cited a recent police report she’d read of an elderly woman being assaulted by several teenage girls, just blocks from her home, as one of the many reasons she feels she needs protection in her own neighborhood.

Jackson said she’s had a lifetime of training with her firearm, although she wouldn’t identify the kind of weapon she wield. Back in the ’60s, she said, “they were calling us pistol packing mamas.” It’s that history, she said, that makes her feel safest with a gun in her drawer, where she can easily get it in case of a robbery.

But Theo Ellington — a board member of the Bayview Opera House and the Southeast Community Facilities Commission — sees the issue differently. Notably, as a member of the Young Black Democrats, he led the opposition against Mayor Ed Lee’s proposal to introduce “Stop and Frisk” policing to San Francisco. Lee abandoned the idea after activists cited rampant civil rights abuses under the policy in New York City.

Ellington thinks that overturning the San Francisco’s gun ordinances would be a bad idea. “We face a much greater risk if we fail to take measures to prevent [gun] accidents,” Ellington told us. “The last thing we want is for any weapons to be in the hands of children or for potential misuse.”

He has reason to be worried about the Bayview. Recent city statistics show an upswing in most crime categories in the district from 2011 to 2012, from homicides and rape to vehicle theft and burglaries. National studies have shown gun owners or their family members are more likely to get shot by guns kept in homes than are intruders. Public safety means different things in different areas, Ellington said, especially “when we’re dealing with a population that is plagued by gun violence.”

FX Crowley campaign party jubilant, then thin

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By Anna Sterling

Around 8:30 or so the West Portal office of District 7 supervisor nominee FX Crowley was filled with supporters, spilling out into the sidewalk.

It included a lively group of his friends and allies from St. Ignatius high school and the musician’s union. Others at the party were Kate Breslin of the Health Services Board of the City and County of San Francisco, Tom O’Connor, president of the firefighters union, Tim Paulsen, president of the San Francisco Labor Council and John Ring, SI alumni director, city attorney Dennis Herrera and Denise LaPointe, ex-president of the West of Twin Peaks neighborhood council.

The crowd cheered when the first votes were announced around 8:45 with Crowley slightly behind Norman Yee. Paulsen told us that labor was heavily backing Crowley because they wanted a strong labor candidate in District 7. He said labor provided more money and resources for Crowley than any other labor candidate in years.

The crowd became more subdued as the votes came in and Yee maintained his lead. The crowd gradually thinned out until just about everybody was gone around 11pm.

Giants’ revelers who crossed the line face charges

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Yesterday’s parade celebrating the Giants’ World Series sweep almost went down without a hitch, no thanks to a handful of inebriated miscreants. Among the estimated one million revelers that attended, the SFPD reports that 22 were arrested, including 13 for public drunkenness. Others were charged for robbery, battery and unlawful possession of a loaded firearm.

Yesterday’s violations, however, paled in comparison to the chaos that ensued after the final game on Sunday night, when even more arrests were made and major damage was done to the city. District Attorney George Gascón is prosecuting nine individuals detained in connection to the shenanigans that occurred around the city last weekend. 

“What occurred last Sunday was inexcusable,” Gascón at a press conference Tuesday afternoon. “We want to send a clear message that we will prosecute all the cases presented to us, to the fullest extent of the law.”

The nine charged so far include eight men and one woman, all of them locals. “So far I believe everyone we have are San Francisco residents,” says Gascón.

Seven are charged with assaulting or threatening a peace officer. SFPD Officer Carlos Manfredi says two officers – whose names he could not release – suffered injuries after confrontations with rioters. “One suffered a hand injury and one suffered lacerations to the leg from a glass bottle that was thrown.”

Tomas Lunsford was arrested on charges of robbery after he allegedly stole a phone from a woman who was filming the celebration. He then allegedly punched her female friend while attempting to evade capture. Additional charges include resisting arrest with force, battery and arson of property.

The latest arrest associated with the carnage occurred Tuesday after police identified a man who was photographed shattering a Muni bus window. Gregory Tyler Grannis, 22, of San Francisco was detained on felony charges of vandalism and destroying a passenger transit vehicle. Police were led to him after tips from social media sites.  Grannis is scheduled to be arraigned Friday.

The DA’s office has been presented with several other individuals who have yet to be reviewed.  Gascón anticipates more violators will be charged in the coming days: “We expect additional cases, including cases involving damage to city vehicles.”

SFPD is currently investigating the torched Muni bus incident.  On Wednesday, Police Chief Greg Suhr released cell phone video and photographs of two suspects wanted in connection with the arson of the bus. “We are now asking for public assistance in identifying these two arsonists and bringing them to justice,” Suhr said.  Photos and video can be viewed at sf-police.org

It is unknown what the ultimate cost of the damage from Sunday night’s chaos will be. City Attorney Dennis Herrera said that in addition to being charged criminally, public offenders will receive civil fines commensurate with their offenses.  “I’m here to tell folks that you will be hit in your pocket book,” he says. “If you damage the city we will seek retribution and damages.”

Celebrations turned chaotic in North Beach and Downtown, but it was the Mission District that saw the most damage. Along Mission Street, 24th Street and Valencia Street vandals tagged several businesses, damaged public property and set fires.  In a statement Monday, Mission District Supervisor David Campos said, “I have been in communication with the Department of Public Works and we are working closely to clean up the streets and help affected businesses.”

Under oath

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steve@sfbg.com

Mayor Ed Lee and suspended Sheriff Ross Mirkarimi each took some lumps on June 29 as they were cross-examined by opposing attorneys in front the Ethics Commission, which is conducting the official misconduct case that Lee brought against Mirkarimi over a Dec. 31 domestic violence incident. But the hearings proved unexpectedly dramatic when the room was suddenly cleared for an undisclosed security threat — following testimony by Lee that a city commissioner alleges included perjury.

The incident raises a number of issues that officials hadn’t yet answered by Guardian press time. Was the security threat real? If so, why wasn’t the room or the rest of City Hall properly secured after the mayor was whisked away? If not, who ordered the room cleared and why?

Undersheriff Paul Miyamoto, who ran against Mirkarimi last year, told the Guardian that the San Francisco Police Department notified his office that a caller claimed to have planted bombs outside of City Hall and on the Golden Gate Bridge. Deputies conducted a search and found nothing, and his office didn’t order the recess of the hearing. “We did not evacuate anyone,” he told us.

Speculation about the incident was heightened during the break when Debra Walker, a Mirkarimi supporter and longtime member of the city’s Building Inspection Commission, told the Guardian that Lee committed perjury when he denied speaking with any members of the Board of Supervisors before filing official misconduct charges. Lee was responding to a direct and pointed question from Mirkarimi attorney Shepherd Kopp — one that that Lee’s attorneys had unsuccessfully objected to.

Specifically, Walker said that her longtime friend and political ally Sup. Christina Olague — who Lee appointed to serve the last year of Mirkarimi’s term for the District 5 seat — had told her repeatedly that Lee had asked her advice before filing the charges against Mirkarimi, and that Olague’s advice was that Lee should ask for Mirkarimi’s resignation but drop the matter if he refused.

That allegation, which was first reported on the Guardian’s Politics blog shortly after the commission went into recess (Olague had not yet returned a call from the Guardian asking whether she had spoken to Lee about Mirkarimi), prompted reporters to confront Olague in the hallway outside her supervisorial office, where she tersely denied the allegation and then took refuge behind closed doors.

When the reporters lingered and persisted, waiting for a more complete answer, Olague finally emerged, reiterated her denial, refused to speculate about why her friend Walker would make that claim, and said, “We’re not allowed to discuss this matter with anyone before it comes to the board…I may have to recuse myself from voting on this.”

It was unclear why she thought recusal might be necessary, but if she does disqualify herself from voting on Mirkarimi’s removal later this summer after Ethics completes its investigation and makes its recommendations to the board, that would hurt Lee’s effort to get the nine votes needed to remove Mirkarimi.

When the Ethics Commission hearing resumed after a couple hours, Lee was again placed in a position of denying specific factual allegations that others have made, again raising the possibility that he committed perjury in his sworn testimony, which could expose him to felony criminal charges while undercutting his moral authority to remove Mirkarimi over the single misdemeanor count of false imprisonment that he pleaded guilty to in March.

The second instance was when Kopp asked Lee, “Did you ever extend any offer through third parties that you would find him another job if he resigned?”

“I don’t recall offering Sheriff Mirkarimi any job,” Lee replied.

Kopp specifically asked whether that job offer had been extended on Lee’s behalf by permit expediter Walter Wong or by San Francisco Democratic Party Chair Aaron Peskin, to which Lee replied, “Absolutely not.”

Mirkarimi supporters have told the Guardian that Peskin had made that offer, which Mirkarimi refused, shortly before the party chair publicly called for Mirkarimi’s resignation. The outgoing message on Peskin’s cell phone said he was unavailable and wouldn’t be checking his messages until July 5. Mirkarimi’s attorneys said they’re still figuring out how to respond to the developments and had no comment, but Walker said she’s willing to testify under oath.

But the dramas underscore the treacherous grounds opened up by these unprecedented proceedings, the first involving the Ethics Commission and the broadened definition of official misconduct placed into the City Charter in 1996. As baseball great Barry Bonds and former President Bill Clinton learned, being forced to testify under oath about sensitive topics can be a tough trap to negotiate.

 

MIRKARIMI TESTIMONY

Deputy City Attorney Peter Keith also seemed to be trying to spring that perjury trap on Mirkarimi as he took the stand on the morning of June 29 following an hour on the stand at the previous night’s hearing. Keith reminded Mirkarimi that he was advised not to discuss his testimony with anyone and asked, “Who have you spoken to since last night?”

“My attorneys,” Mirkarimi answered.

“What did you say to them?” Keith asked, drawing objections about attorney-client privilege that Commission Chair Benedict Hur sustained.

“Did you stop for coffee?” Keith then asked, seemingly concerned that Mirkarimi may have discussed his testimony with someone at the coffee shop that morning, which Mirkarimi denied. Keith let the allegation go but maintained an accusatory, hectoring tone throughout the next three hours that he had Mirkarimi on the stand, two more hours than he had told the commission he would need.

Much of the time was spent trying to establish support for the allegation that Mirkarimi had dissuaded witnesses and sought to thwart the police investigation, which was triggered by a call from Ivory Madison, a neighbor to whom Mirkarimi’s wife, Eliana Lopez, had confided. But the testimony yielded little more than the city’s unsupported inference that Mirkarimi must have directed Lopez and his campaign manager, Linnette Peralta Haynes, to contact Madison after she had called the police and urged her to stop cooperating with them.

Mirkarimi has maintained that he did nothing to dissuade Madison or anyone from talking to police, and that he wasn’t aware of the investigation or that Madison had made a videotape of Lopez showing a bruise on her arm until hours after the police were involved. He even sent a text to Lopez saying there was nothing he could do, as he noted.

“It was after 4pm on January 4 when I first learned of any of this,” Mirkarimi testified, later adding, “I was very clear to her in saying you can’t unring the bell, we have to follow through with this.”

Yet Lee and the deputy city attorneys who are representing him also maintain that they needn’t prove witness dissuasion or other allegations they have made, and that the Dec. 31 incident and Mirkarimi’s guilty plea to a single misdemeanor count of false imprisonment are enough to constitute official misconduct and warrant his removal, an interpretation that Mirkarimi’s attorneys dispute.

Keith sought to hammer home how Mirkarimi should have admitted to and publicly atoned for his crime right away rather than telling reporters it was a “private family matters” (which Mirkarimi admitted was a mistake) or fighting the charges by trying to discredit Madison publicly, an allegation he denies.

After unsuccessfully trying to get Mirkarimi to admit to directing efforts to question Madison’s credibility in local media accounts, Keith asked, “Did you ever direct anyone not to attack Ivory Madison?”

“I never directed anyone to attack or not attack,” Mirkarimi replied.

Keith also clarified that Mirkarimi denies the allegation Madison made that the physical abuse on Dec. 31 went beyond grabbing Lopez’s arm once in the car, as the couple has maintained. “It’s your testimony there was no punching, pulling, or grabbing in the house?” Keith asked, which Mirkarimi confirmed.

Yet Keith said that given the totality of what happened, Mirkarimi should have known he couldn’t continue on as sheriff. “Under those circumstances, wouldn’t resigning be the honorable thing to do?” Keith said, to which Mirkarimi replied that it’s a hard question and that he’s doing what he thinks is right.

Faced with friendlier questions from his own attorney, David Waggoner, Mirkarimi apologized for his actions, saying “I feel horrible and ashamed,” but that he was “sad and scared” to have his family torn apart against their will. He also said that he believes he can still be effective as sheriff because “what makes San Francisco special is our forward-thinking approach to criminal justice.”

Longtime Sheriff Michael Hennessey — who endorsed Mirkarimi and continues to support him — established a variety of programs emphasizing redemption and rehabilitation, hiring former convicts into top jobs in the department to emphasize a belief in restorative justice that Mirkarimi ran a campaign promising to continue.

“Never in my wildest dreams did I think I would be an example of what this redemption process looks like,” Mirkarimi said, choking back tears.

But Keith had the last word before Mirkarimi left the stand, belittling the idea that Mirkarimi offers an example to follow by noting how much probation time and court-ordered counseling he still has to undergo and asking, “The process of redemption doesn’t happen overnight, right?”

 

LEE ON THE STAND

Under questioning by Kopp, Mayor Lee admitted that he doesn’t have a written policy on what constitutes official misconduct, that his decisions are made on “a case by case basis,” and that he’s not sure whether conviction of a crime would always constitute official misconduct “because I’ve never confronted this before.”

“Were you aware that many members of the Sheriff Department have criminal convictions?” Kopp asked. Lee said he was not aware. Asked whether he was aware that Sheriff Hennessey had hired a convicted murderer into a top command staff position (see “The unlikely sheriff,” 12/21/11), Lee said he wasn’t.

Lee’s insistence that Mirkarimi’s crime makes him unable to deal effectively with other officials was also attacked by Kopp, who asked, “Isn’t it true that people get elected who have disagreements with other city officials?” He pointed out that City Attorney Dennis Herrera had nasty conflicts with Lee when they ran against each other for mayor last year, but that they’re working well together now.

Kopp also drilled into Lee about his decision to bring official misconduct charges before conducting an investigation or speaking with any witnesses besides Madison — an answer Lee blurted out just as city attorneys objected to the question. Much of Madison’s written testimony has been rejected by the commission as prejudicial hearsay evidence (see “Mayor vs. Mirkarimi,” July 27).

But the public’s perception of this case, if not it’s outcome, could turn on whether Lee is holding Mirkarimi to standards that he himself — as someone appointed mayor on a later-broken promise not to run for a full term — couldn’t meet. It was what Kopp seemed to be driving at before the bomb scare.

“You have asserted in your written charges that Sheriff Mirkarimi’s conduct fell below the standard of decency, good faith, and right action that is impliedly required of all public officials, correct?” Kopp asked.

“Yes,” Lee replied.

“We expect certain things of our elected officials, right?” Kopp asked.

After a long pause, in which Lee appeared to be thinking through his answer, he replied, “That’s generally true, yes.”

“And when the charter speaks of official misconduct, it doesn’t say we expect a certain standard for the sheriff, a different standard for the mayor, a different standard for the DA, a separate standard for the assessor, it just speaks in general terms about official misconduct for public officials, right?” Kopp asked.

Kaiser objected to the question on three counts, sustained on the grounds that it calls for a legal conclusion.

“Do you yourself believe there’s a separate standard for sheriff than for other elected officials?” Kopp asked, and this time the city’s objection was overruled and Lee replied, “It should be the same standard.”

“And would you agree with me that one of the things that is expected of elected officials is for them to be honest and forthright when dealing not only with their constituents, but with other elected officials?” Kopp asked, his final question before Chair Benedict Hur announced that the hearing would be suspended and the room would need to be cleared.

After the hearing reconvened, Kopp drew parallels to other city officials who remained on job after scandals, including former Mayor Gavin Newsom (who had an affair with a subordinate who was married to his campaign manager), former Sheriff Dick Hongisto (who was jailed for refusing to carry out a court’s eviction order), and current Fire Chief Joanne Hayes White (whose husband reported that she hit him in the head with a pint glass).

Asked about the latter case, Lee responded, “I don’t know all the circumstances around that and I don’t believe I was mayor at the time.”

 

Seeking local control

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news@sfbg.com

As a potentially troublesome court decision threatens the existence of cannabis dispensaries in cities throughout California, San Francisco City Attorney Dennis Herrera submitted an amicus brief last week urging the California Supreme Court to reverse the decision.

In October, the state Court of Appeal ruled in the case of Pack v. City of Long Beach that city ordinances regulating medical cannabis dispensaries are preempted by federal law. Local jurisdictions across the state have adopted discretionary rules for permitting cannabis dispensaries that vary by jurisdiction. The court decision throws out local ordinances, making it illegal for cities and counties to develop regulations.

“The Court of Appeal’s decision strips cities of an essential tool for protecting public health and welfare,” reads Herrera’s amicus brief, which is joined by Santa Cruz Counsel Dana McRae. An amicus brief is commonly filed in an appeal concerning broad public interest by parties not directly involved the court proceedings.

The ruling could have drastic consequences for cannabis dispensaries and the clients they serve. Most cities in the state, including San Francisco, rely on local ordinances to regulate the medical marijuana industry. Herrera says cities will be forced to choose between banning cannabis dispensaries altogether or allowing their operation without local controls, such as San Francisco’s extensive regulations on where and how dispensaries can operate.

In the absence of local regulations, he argues that ” dispensaries and cultivation sites have the potential to generate serious impacts on surrounding communities, including electrical fires, criminal activity, hazards to children’s safety, pollution, harm to wildlife, traffic, noise and odors.”

The appellate court ruled local ordinances go beyond Prop. 215, the California voter-approved decriminalization of medical marijuana, and cross into the realm of actually legalizing it, conflicts with the federal Controlled Substance Act.

In the wake of the court’s decision, the impact was felt immediately. Across the state, cities suspended all new permit activity.

Since the decision was sent to the state Supreme Court in January, where it is currently under review, San Francisco resumed its permitting process. Not all cities resumed. Herrera noted that as many as 12 jurisdictions continue to suspend or severely limit new cannabis dispensary permits, including Santa Cruz.

Rory Bartle, a lawyer at Pier 5 law offices and medical marijuana advocate, says that if the decision isn’t overturned, the entire industry could be upended. However, Bartle says the ruling isn’t widely supported, many counties have filed amicus briefs, and in his opinion the ruling will be overturned.

It is hard to imagine Ryan Pack and Anthony Gale, plaintiffs in the Pack v. City of Long Beach case and members of a cannabis collective that was shut down because of local ordinances, realized the implication of challenging such regulations. Long Beach required a $14,000 non-refundable application fee and annual $10,000 fee.

“Long Beach has some crazy regulations designed to pull as much money as they can out of the medical marijuana industry,” says Bartle. “It’s stupid and unfair.”

In San Francisco, the fees for an application permit are $8,656 and another $4,019 for a license and re-inspection.

The Mirkarimi case: Did the city want to settle?

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The real news in the Ross Mirkarimi case isn’t the sheriff attempting to get the city to pay his legal fees; that’s just something he had to try but it was a long shot at best. The story that’s come out in bits and pieces since we broke it is far more interesting:

City Attorney Dennis Herrera, with or without the knowledge of his client the mayor, offered to begin discussions with Mirkarimi around settling the case — and the conflicting accounts of what went on show haw harsh this legal proceding has become.

Whatever you think about Mirkarimi’s actions on New Year’s Eve — and I’ve said many times that what he did was unacceptable — the intensity of the prosecution, particularly in the removal proceding, is unprecedented.

Some of the political fallout is clearly Mirkarimi’s fault. He bruised his wife, got bad advice early on, said the wrong things, and didn’t do enough to repair the damage. But now Mirkarimi’s lawyer is charging that the city attorney used a nasty legal gambit to try to convince the embattled sheriff to resign.

David Waggoner, in a TV interview with KGO’s Dan Noyes, and later in discussions with me, said that City Attorney Dennis Herrera offered to look for a way to keep the video of Mirkarimi’s wife out of the public eye — if Mirkarimi would take a financial settlement and resign from his elected position.

Mirkarimi told me the offer he heard from his lawyer put him in a terrible bind: Franky, the video contains nothing that hasn’t already been out, and won’t be the defining issue in the official misconduct case now before the Ethics Commission. But his wife, Eliana Lopez, was adamant that she didn’t want the 45-second clip on the Internet, where she — and more important, their three-year-old son — will have to live with it forever.

“They were using the needs of my family to pressure me,” Mirkarimi said.

Waggoner was pretty specific about his recollection of the settlement discussions. He said that after Herrera contacted him to say that he was willing to discuss settling the case, Waggoner made it clear that keeping the video sealed had to be part of any deal.

“We hung up, and then he called me back five minutes later to say that his government team was working on it, and he thought they could keep the video under seal,” Waggoner said. “The mayor and the city attorney were using the video as leverage.”

Hererra confirmed that he reached out to Waggoner to see if Mirkarimi’s legal team was interested in settlement discussions. But told me that Waggoner’s story was “absolutely, categorically untrue.” He insisted that he had no choice but to release the video, since several media outlets had requested it under the San Francisco Sunshine Ordinance.

In a statement issued June 8, Hererra attacked not only Mirkarimi but his attorneys:

“Everyone involved in this case was well aware of the City’s legal obligations under the Sunshine Ordinance (which Ross Mirkarimi himself had a hand in drafting).  The City invoked the maximum allowable two-week extension after receiving Sunshine requests for the video, to allow other parties to seek a protective order.  But opposing counsel dropped the ball.  They didn’t get a protective order.  They didn’t seek Supreme Court review.  They didn’t raise the issue at the Ethics Commission hearing.  And as far as I know, [Lopez’s counsel Paula] Canny didn’t even bother to show up at the hearing.  So, I think it’s a little absurd now to be playing martyr.  These are lawyers representing a former lawmaker.  They have no excuse for not knowing the law.”

Wow. Sounds like the usually level-headed Herrera is one pissed-off attorney.

Interestingly, Mayor Lee told Noyes that he didn’t know anything about any settlement discussions. Either that’s false (the mayor could have been instructed by Herrera not to say anything) or Herrera was going ahead without the mayor’s knowledge or permission.

So let’s set aside for the moment the back-and-forth about who’s telling the truth and what was really involved in the negotiations. Here’s what’s not in any serious dispute:

Herrera, representing the mayor, was sufficiently motivated to settle the case before it got to the Ethics Commission that he personally called Mirkarimi’s attorney to see if there was any possibility of finding a way out. Again: Attorneys in the most bitter lawsuits are advised to seek settlement. But this isn’t in court, and no judge mandated a settlement conference.

Which suggests that the city attorney and possibly the mayor would be a lot happier if this case just went away. Maybe Lee doesn’t like the drama. Maybe Herrera thinks it would be best for Mirkarimi and the city to put this in the past and move on.

Or maybe they aren’t sure this case is such a slam-dunk winner.

There’s another interesting twist, too: Mirkarimi told me that he asked the Probation Department for permission to fly to Venezuala to see his son. There were no conditions on his guilty plea barring him from travelling outside of the country (what — they think he won’t come back? That he has run through all of his money and put himself heavily in debt to fight a case that he’s now going to run away from?) But when he made a formal request, it was denied.
That’s right — probation officials refused to let him go visit his son. Forget Mirkarimi — that’s not fair to the three-year-old kid who did nothing wrong at all and is suffering for it.

Supervisors dominate DCCC race, but key newbies join them

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“I just stopped by on my way to finish campaigning,” Sup. David  Campos told me at the Bike Coalition’s 20th Annual Golden Wheel Awards (more on that tomorrow), the first in more than a majority of the Board of Supervisors at the event.

Campos was campaigning for reelection to the Democratic Party County Central Committee (DCCC) and the polls were still going to be open for almost two more hours. Perhaps he could still reach the one in four registered SF voters who bothered to weigh in on this lackluster election.

“There was nothing really on the ballot that excited voters,” Campos said. “Hopefully November will be different.”

Tonight’s returns — for leadership of a local Democratic Party that hopes for more  voter engagement in the fall races — showed that Campos and fellow supervisors David Chiu, John Avalos, and Scott Wiener expectedly topped the pack, with Bevan Dufty, who moved from the board to the Mayor’s Office this year, in fifth place. And longtime former legislator Carole Migden’s sixth place fininish in the 14-seat eastside DCCC race helped show that it was mostly about name recognition.

But there were a couple of first-time candidates in the winning field: Matt Dorsey and Zoe Dunning, who finished 8th and 12th respectively. Both played key roles in recent LGBT politics: Dorsey as the City Attorney’s Office spokesperson during the same-sex marriage saga of the last eight years, Dunning as a poster lesbian in ending the US military’s “don’t ask, don’t tell” policy.

“I think Zoe and Matt are the ones to watch,” DCCC member Alix Rosenthal told me at the Buck Tavern as she celebrated her reelection, after campaigning hard for both the progressive and women’s slates.     

Unprompted, Dorsey returned the recognition when I stopped by his party down the street at Churchill. “Alix and Rafael [Mandelman, who organized the progressive slate and finished 10th, right after Sup. Malia Cohen] ran other things, so it’s apples and oranges,” Dorsey humbly said of the two former Dist. 8 supervisorial candidates he bested, when I asked about his strong finish.

Dorsey ran an aggressive campaign, targeting high-turnout precincts and working hard to get the full spectrum of political endorsements (and posting all his answers to each group online), what he called “Moneyball politics.” And it translated into an impressive finish for a freshman candidate but longtime politico.  

“Right now, I’m looking to get back to the gym after a year and a half of campaigning,” said Dorsey, the spokesperson for the mayoral campaign of City Attorney Dennis Herrera, who was at the party, along with District Attorney George Gascon. 

Dorsey and his fellow Guardian/progressive slate members did better in Eastside Dist. 17 than Westside Dist. 19, taking 10 of 14 seats compared to four of 10, leaving a near-equal balance with the moderate Democrats once the seats of elected officials are factored in.

But if the spirits count for anything, Dorsey told me he ran especially hard to earn the seat that outgoing DCCC Chair Aaron Peskin appointed him to when long progressive activist Michael Goldstein died last year.

“Knowing that it was his seat,” Dorsey said, “motivated me to work harder.”

City attorney responds on sunshine task force attacks

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B3 note: Here are responses from City Attorney Dennis Herrera to Impertinent Questions from B3 on why the city attorney helped facilitate the supervisorial attack on the sunshine ordinance and task force (See previous B3 sunshine blogs).

Regarding recommended SOTF candidates

Section 67.30 (a) of the San Francisco Sunshine Ordinance provides that the Sunshine Ordinance Task Force’s eleven voting members be “appointed by the Board of Supervisors.”  That same section designates that a total of four members be appointed by the Board from names submitted for consideration by: the local chapter of the Society of Professional Journalists; the League of Women Voters; and New California Media.  I’m informed that when the Board’s Rules Committee conducted its hearing and interviewed SOTF applicants, only one person was recommended for each seat by these entities.  The Rules Committee then continued action on those seats until the entities submitted additional names.  Legally, there is nothing problematic about such a continuance.

Regarding designated seats

Section 67.30 (a) includes specific designations for each of the seats on the SOTF.  It additionally provides that one of those seats be a person with a disability, although it does not prescribe which of the 11 seats be designated to a person with a disability.  I’ll be honest here: I’m not aware of whether Mr. Todd has a disability or not.  But given that the Board still has to fill four remaining vacant SOTF seats, it will comply with the Sunshine Ordinance so long as one of the SOTF seats is timely filled by “a member of the public who is physically handicapped and who has demonstrated interest in citizen access and participation in local government.”

Regarding public comment

Public comment occurs in board committees.  Each SOTF applicant spoke at the Rules Committee, and members of the public had the opportunity there to offer their comments on all of the applicants.  Although the Rules Committee forwarded six recommendations out of committee, the record transmitted to the full Board included the entire file — including all the other applicants.  The City Attorney’s Office has long advised the Board of its authority to amend appointing motions, and to instead appoint someone else, so long as that appointee’s name and application was before the Rules committee, and so long as it was subject to public comment.  That was indeed the case here.  At the committee level, applicants speak; members of the public speak about the applicants; and then public comment is closed.  The committee then decides on its recommended appointments — but public comment is not reopened to comment on the committee’s choices.  

Regarding the role of the City Attorney

With respect to your question about why the City Attorney is “allowing” certain actions by clients, I should briefly address the role of the City Attorney under San Francisco Charter § 6.102.  Beyond the particular set of circumstances addressed in this email, most questions about what the City Attorney “allows” or “disallows” really misinterpret the office’s function.  In many contexts over many years, the office has reiterated that “[t]he City Attorney is not a policy maker.”  (See: http://www.sfcityattorney.org/modules/showdocument.aspx?documentid=953 )  The City Attorney’s Good Government Guide (pages 19-21) addresses at length the role the City Attorney plays in providing legal counsel to the City and its elected officers, commissions and employees (See: http://www.sfcityattorney.org/Modules/ShowDocument.aspx?documentid=686 )  

This office provides legal advice to clients, while also acknowledging that the policy-making authority of the Board and Mayor includes the prerogative to assess for itself the relative legal risks of its actions, understanding that this office will defend its actions “so long as there are legally tenable arguments to support doing so.”  In that sense, the role is no different from that of any lawyer providing advice to a client: attorneys counsel; but clients, ultimately, decide.

Best,
MATT DORSEY
Press Secretary to City Attorney Dennis Herrera

B3 comment: The city attorney has made the case for the task force to get independent legal advice and to bring in an independent attorney to represent the task force. More: It is yet another reason to have an independent attorney as a task force member who is strong enough to go up against the city attorney as appropriate on critical issues.   This was the original reason for SPJ, with its experience in public access and First Amendment issues and litigation, to nominate an experienced attorney. This was the first time the supervisors rejected the SPJ nominee (and nominees from other organizations as mandated by the charter)  without a proper explanation or apology or a nice word of thanks. .He helped Willie Brownism prevail for the first time with the sunshine ordinance and task force.

Sunshine eclipsed

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As an advocate for the passage of the San Francisco Sunshine Ordinance in the early 1990s, I felt obligated to take my first and only City Hall position and serve as a founding member of the Sunshine Ordinance Task Force. I served for l0 years and helped with many other good members to build the task force into a strong and respected agency for helping citizens get access to records and meetings and hold city officials accountable for suppressing access and information.

The task force is the first and best local sunshine task force of its kind in the country, if not the world. It is the only place where citizens can file an access complaint without an attorney or a fee and force a city official, including the mayor, to come before the task force for questioning and a ruling on whether they had violated sunshine laws. The task force lacked enforcement powers, but it still annoyed city officials, including Mayor Willie Brown.

In fact, Brown spent a good deal of time trying to kick me off the task force. He used one jolly maneuver after another, even getting an agent to make a phony complaint against me for violating the ordinance with an email (The complaint went nowhere). I refused to budge and decided to stay on until Brown left office—on the principle that neither the mayor nor anybody else from City Hall could arbitrarily kick members off the task force.

That principle held until about 3pm last Thursday (May 17) at the meeting of the Board of Supervisors Rules Committee to appoint candidates to the task force. At that meeting, without proper notice, advance warning, explanation, apology, or even a nice word or two, the supervisors suddenly turned a normal drowsy committee meeting into an unprecedented bloodbath for the task force and its independence. Sup. Mark Farrell played the heavy, Jane Kim was the facilitating chair, and David Campos was the reluctant third party, working together to bring Willie Brownism back at the task force with a vengeance.

The committee rejected four qualified candidates from three organizations who are mandated by the Sunshine Ordinance to choose representatives for the task force because of the organizations’ special open government credentials. (Doug Comstock, editor of the West of Twin Peaks Observer; Attorney Ben Rosenfeld from the Northern California chapter of Society of Professional Journalists, sponsor of the ordinance; Allyson Washburn from the League of Women Voters and Suzanne Manneh from America New Media.)

The committee without blushing asked the organizations to come up with a “list of names,” a whiff of grapeshot aimed at members and organizations who had served the public well for years. Who wants to go before the supervisors on a list of names for a bout of public character assassination? Meanwhile, while knocking off the qualified, knowledgeable candidates, the committee approved four neophytes without experience and then unanimously appointed David Pilpel, a former task force member known for delaying meetings with bursts of nitpicking. He almost always comes down on the side of City Hall and against citizens with their complaints.

Farrell also tried to bounce Bruce Wolfe, an excellent member, but Kim and Campos supported him and his name was sent on to the full board for approval.

Then, when Wolfe’s name got to the board on May 22, it was a repeat of Willie Brownism and this time to the max. Sup. Scott Wiener moved to amend the motion and substituted Todd David. Farrell seconded. The vote was 6-5, meaning that Willie Brownism wiped the sunshine slate clean of anybody who would raise a pesky question of city officials and the City Attorney’s Office.

The infamous votes against Wolfe: Wiener (ah, yes, the heir of the Harvey Milk and Harry Britt seat in the Castro), Farrell (where is Janet Reilly when we need her?), Malia Cohen (who comes from the Potrero Hill/Bay View/Hunters Point district that needs all the sunshine it can get in facing an Oklahoma-style land rush of development), David Chiu (who was reportedly angry over the unanimous task force opinion finding he violated the Sunshine Ordinance with late submission of documents before the controversial vote to redevelop Parkmerced), Carmen Chu and Sean Elsbernd (neighborhood supes way out in West Portal and the Sunset who almost always vote the downtown line at City Hall). The good votes for Wolfe: John Avalos, Eric Mar, Cristina Olague, Jane Kim, and David Campos.

Campos told me that the organization candidates were “eminently qualified,” that they should have been appointed, and that he would fight for them. He advised the organizations to “stand by their candidates.” He is urging that the issue of organization candidates come back to the next Rules Committee.

Rick Knee, SPJ’s mandated journalist on the task force surveying the carnage, said the supervisors’ actions stem “partly from a desire by some supervisors to sabotage the task force and ordinance itself, and partly from a vendetta by certain supervisors after the task force found several months ago that the board violated local and state open meeting laws when it railroaded some last minute changes to a contract on the Parkmerced development project without allowing sufficient time for public review and comment.”

Knee is right, and it isn’t just Parkmerced, but all the high-stakes development deals flowing through City Hall these days, with their advocates preferring to cut backroom deals rather than being subjected to the full scrutiny of the public and the task force.

James Chaffee, a former chair of the task force, watched the board proceedings with outrage and fired off a letter to all supervisors later that day. He charged that the board in sacking Wolfe violated the Sunshine Ordinance on several counts. Among them: the board changed the committee recommendation on Wolfe without allowing public comment and it passed over Wolfe even though the ordinance requires at least one member of the task force to be “physically handicapped.” That was Wolfe.

Thus, Chaffee wrote, the orchestrated coup was “the perfect example of a failure to follow the sunshine ordinance that led to the sort of problem that it was intended to forestall, namely the supervisors taking an action without being informed of what they are doing.  If Scott Weiner and David Chiu and the rest of the crew did not consider the citizens the enemy and exercize judgment about whether they were complying with the spirit of open government rather than just shaving off the letter of the law as closely as possible, this could have been avoided.”

Chaffee said he couldn’t tell if David was physically handicapped but he said nothing in his application for the task force nor was any disability apparent from the video of the rules committee meeting.

Chaffee said David’s  application showed he  was “self-employed as an investor, obtained a BA from Stanford in 1993, has never attended a task force meeting, and left the statement of his qualifications blank.”

Chaffee said, “It’s easy to see why Scott Wiener likes him. He said it would be a long road before he would go against the city attorney’s office and when it came to constitutional law, he would place the city attorney’s opinion above his own because the city attorney is an ‘expert.'”

I sent Chaffee’s letter and my Bruce Blog post ( “The return of Willie Brown to the Sunshine Task Force,” 5/21) to City Attorney Dennis Herrera for comment: How can his office sit by while the letter and spirit of the sunshine laws are being violated in the move to sabotage the sunshine ordinance and task force? I also sent Chaffee’s letter, with the Bruce blog, to the supervisors with similar questions: Why  are you violating the sunshine laws to kick out the best candidates? For their answers (coming)  and the latest on this evolving controversy, follow along at  www.sfbg.com/bruce.

There you have it:  the state of sunshine and open government in city hall in San Francisco in May of 2012. Todd David over Bruce Wolfe. David  Pilpel uber alles.  Five inexperienced candidates over five experienced candidates. David Pilpel uber alles. A city attorney who rolls over and over and over again. And a whiff of grapeshot for the three organizations mandated by the charter to have represenatives on the task force  because of their open government and public access credentials (the Northern California chapter of the Society of Professional Journalists, the League of Women Voters, and America New Media.)  On guard,  b3

 

GUEST OPINION: The politics of retribution

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By Debra Walker and Krissy Keefer

We have been shocked and saddened by the perpetual attack on Ross Mikarimi and his family.

To Ross’s credit, he took responsibility in the criminal case he faced, and accepted a plea bargain to a non-domestic-violence misdemeanor that the district attorney concluded served the interests of justice.

He and his wife, Eliana Lopez, had resolved their dispute before the betrayed disclosure to the police and the media by the trained but unlicensed attorney that began the criminal case. The plea bargain was vetted and all legal ethicists consulted concluded that the plea bargain could not be the basis of any action against Ross for the now infamous term “official misconduct.” Ross was ordered into counseling.

Since the criminal case ended we have watched the mayor, domestic-violence advocates, and the majority of the print media, collectively pass judgment without connection to reality, with devastating consequences to Ross Mirkarimi, his family and the people of San Francisco.

Mayor Ed Lee suspended Ross without a hearing and without pay. In other words, the mayor acted against Ross without due process. City Attorney Dennis Herrera has merely repeated all of the unsubstantiated allegations from a newspaper opinion piece in the form of a pleading — and actually submitted this as fact, further embarrassing our city.

Barring further intervention by the courts, the Board of Supervisors and the Ethics Commission will now be forced to publicly weigh in on the concluded criminal case that occurred before Ross was in office.

Was the punishment laid out by the courts not enough? Are we going to all sit back and watch as San Francisco engages in a public political assassination of a progressive elected official? At what point does it stop? 

Clearly it hasn’t stopped with Ross. Now the mayor and the city attorney have begun the attack on his campaign manager and well-known City Hall aide Linette Peralta-Hayes. Who is next? It could be any of us, of you.

As close friends of Ross and Eliana, we can attest to the fact that this family has paid dearly for their now very public fight and we all should hope for a healing. It does not bring justice to any women’s issues to have such a public display of retribution and revenge. Blowing this out of proportion like this has been only sets the stage for the continued backlash against women’s real issues.

If there were not a complete attack on women’s rights at this time in our country, this might be easier to stomach. Not one thing about this has advanced the rights of women or the understanding of domestic violence. Instead, the criminal justice system has been manipulated to further a political agenda of removing an elected official from office.

We all make mistakes in life. There have been several recent occasions involving officials actually in office where their behavior was questioned.  One issues involved sexual contact with a subordinate, another involved domestic violence and others involved substance abuse. In not one of these instances has the person been removed office.

To remove Ross from office is political and nothing else.

People are purportedly so outraged on behalf of abused women everywhere. But where is the outrage about the coordinated attack on choice in our country or about the documented inhumanities perpetrated against women throughout the world, even today?  Or equal pay, or adequate healthcare? What about the families losing their homes to greedy banks? Nothing of substance gets done on these issues. Instead, attention is focused away from the important issues to the personal shortcomings of the politicians seeking to address those issues.

From the impeachment efforts against Clinton to the allegations against the Wikileaks activist, there are over-amped attacks aimed to politically destroy the target in the press.  “Due process” and “innocent until proven guilty” are essentially thrown out the pressroom window. 
In the name of domestic violence, the mayor and the city attorney have removed an elected official from office. Domestic violence advocates are being used to further an agenda that is hypocritical and ultimately will undermine and dis-empower us all.

Ross Mikirimi was the only progressive elected in the last election. Ross has always been an ideological feminist. The established power brokers in City Hall did not want Ross to be sheriff. They do not want someone who advocates for diversity. They do not want someone who supports the rights of the people to implement the Compassionate Use Act and maintain cannabis dispensaries. They do not want a sheriff who will stand up to the federal government.  They do not want a sheriff who will stand with the 99 percent.

San Francisco is a great city not because of intolerance but because of tolerance. The strength of the city came about because of respect for diversity and encouragement of diversity. Ross stands for those principles.

Ross made a mistake in his personal relationship. Eliana Lopez, his wife, has clearly forgiven him. Each of us should do the same. To do otherwise is to disrespect Lopez.

Are we going to trust City Hall to be the arbitrators of conduct?  And are we really going to sit by and watch as they systematically throw untrue, unfounded, unsubstantiated accusations at whomever they want? Really?

To use this incident as the basis for this coup is without precedent. City Hall’s actions are without basis in fact and without foundation in law.

We believe that the mayor, among others, is doing what he wants to under the guise of women’s rights. We do not want to be used in that way.

There is something very wrong with what is happening — and sadly if this public political assassination can happen to Ross and his family, it can and will happen to anyone of us. Ask Linette Peralta Hayes.
 
Krissy Keefer is artist director, Dance Mission Theater. Debra Walker, an artist, is political development chair of the California Democratic Party Women’s Caucus.

Lee’s charges against Mirkarimi leave questions unaddressed

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UPDATED BELOW WITH “RESPONSE” FROM LEE’S OFFICE: Sheriff Ross Mirkarimi was formally suspended today and served with “Written Charges of Official Misconduct” that for the first time outline why Mayor Ed Lee believes Mirkarimi should be removed from office, although they leave unaddressed many questions that Lee has been so far been avoiding answering.

The eight-page legal document prepared for Lee by the City Attorney’s Office briefly lays out the process (a hearing before the Ethics Commission, its recommendation, then action by the Board of Supervisors within 30 days thereafter) and the definition of official misconduct, focusing on this phrase: “conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers.”

That vague language is fairly new and has never been considered or interpreted by any court, and the city acknowledges there are at least “two reasonable interpretations” of its meaning: “This phrase could be either (a) an example of misconduct that, by definition, relates to the duties of all public officers, or (b) an independent, alternative category of official misconduct that does not require a connection to an officer’s official.”

Lee’s attorneys argue that they don’t think a direct connection to an official’s duties is required, but they acknowledge that’s how it could be interpreted, so they try to make that connection as well, often by relying on evidence and testimony that hasn’t been vetted by the courts or by making connections likely to be challenged by Mirkarimi’s new attorney, David Waggoner.

The document recounts the “Wrongful Conduct by Sheriff Mirkarimi,” starting with his “acts of verbal and physical abuse against his wife, Eliana Lopez” on New Year’s Eve, continuing through the criminal charges filed against him on Jan. 13 with a focus on allegations that he dissuaded witnesses and “encouraged them to destroy evidence” and with his March 19 sentencing for false imprisonment, concluding the section with a reference to the newspaper quote from Don Wilson, president of the San Francisco Deputy Sheriff’s Association, that the plea had hurt morale in the department.

The DSA actively opposed Mirkarimi’s election, just as it did his predecessor and mentor, Michael Hennessey, in every contested election in the legendary progressive sheriff’s 32-year career, so it seems a little strange to rely on such a self-serving assessment. But that isn’t the only point that raises questions and potential challenges, particularly as they try to argue that Mirkarimi’s actions related to his official duties.

Part of Mirkarimi’s sentence included one day in jail, for which the judge said his booking qualified, meaning that he never actually was inside a cell. But Lee’s attorneys argue without explanation that, “Sheriff Mirkarimi’s one-day sentence to county jail undermines his ability to receive inmates and to supervise the County jails.” It certainly didn’t seem to for former Sheriff Dick Hongisto, who was jailed for several days after being held in contempt of court for refusing to carry out the International Hotel evictions, but who never faced sanctions from the mayor.

The first and seemingly strongest connection it makes between his actions and official duties listed was, “Sheriff Mirkarimi misused his office, and the status and authority it carries, for personal advantage when he stated to Ms. Lopez that he could win custody of their child because he was very powerful,” a charge taken from the videotaped testimony that Lopez gave to his neighbor Ivory Madison.

Lopez’s attorneys have noted that she made the video to paint Mirkarimi as abusive in case there was a custody battle, as she says on tape, and that she was seeking confidential legal help from Madison and never intended for it to be released. But her and Mirkarimi’s attempts to retrieve it are labeled in the charges as efforts to “encourage the destruction of evidence regarding criminal activity,” which they argue also relates to his duties as a law enforcement officer. This issue is likely to be a matter of serious debate during the Ethics Commission hearing.

Finally, the document argues that because the Sheriff’s Department can enforce protective orders in domestic violence cases and funds programs for domestic violence perpetrators – and because it sometimes interacts with the Adult Probation Department, given Mirkarimi’s three-year probation – that the charges directly relate to his official duties.

Clearly, these are complicated issues that raise a variety of questions, which is why it was disconcerting yesterday when Lee announced the charges to a room packed with journalists and refused to take any of our questions. City Attorney Dennis Herrera didn’t speak at all, simply standing behind Lee looking stone-faced and perhaps a bit uncomfortable.

Earlier today, I sent Lee and his Office of Communications a list of questions that I think he has a public obligation to address given the drastic action that he’s just taken against an elected official. I haven’t received a reply yet, but I’m including my comments here for you to consider as well:

 

I was disappointed that Mayor Lee took no questions during yesterday’s press conference, because I had several that I’m hoping you can address for a long story we’re writing on the Mirkarimi affair for our next issue. I’m hoping to get answers by the end of the workday on Friday.
– Will Mayor Lee release the memo he received from the City Attorney’s Office on Ross Mirkarimi and whether his crime rises to the level of official misconduct? [Note to reader: That advice memo is different than the charges I discuss above.] It is solely under Lee’s authority to waive attorney-client privilege and release the memo, as even Willie Brown urged him to do in his Chronicle column on Sunday. And if he won’t release it, can he explain why?
– Lee told reporters last week that he would explain why Mirkarimi’s action rise to the level of official misconduct if concluded they did, but Lee didn’t offer that explanation yesterday. Why does Lee believe actions that Mirkarimi took before assuming office, which were unconnected to his official duties, warrant his removal from office? Is Lee basing his decision primarily on the crime Mirkarimi committed on New Year’s Eve or his actions and statements since then? What specific actions or statements by Mirkarimi does the mayor believe rise to official misconduct?
– Why didn’t Lee consult with Eliana Lopez or her attorney before making this decision? None of the purported evidence in this case has been scrutinized by the courts as to its veracity or completeness (that would have happened at the trial). The only two people who know for sure what happened that night are Ross and Eliana, so why hasn’t Lee asked either of them what happened?
– Why did Lee set a 24-hour deadline for Mirkarimi to resign or be removed? Did Lee offer Mirkarimi anything in exchange for his resignation, such as another city job?
– Who did the mayor consult with about whether Mirkarimi should be removed before making this decision? Were any members of the DSA or SFPOA consulted? How about Rose Pak or other members of the business community? How about Michael Hennessey? Did he seek input and advice from John St. Croix or anyone from the Ethics Commission?
– It’s my understanding that the mayor wasn’t required to remove Mirkarimi from office without pay pending his official misconduct hearings, that Mirkarimi could have either remained in the job or been suspended with pay. Why did Lee feel a need to place this additional financial pressure on Mirkarimi to abandon the office that voters elected him to? Is he concerned about the impact of his decision on Eliana Lopez and Theo?
– Mayor Lee has prided himself on being someone focused on “getting things done” without creating unnecessary political distractions. So why does he want to drag out this distracting political drama for another few months? Why does he believe that it’s a good use of the city’s time and resources to be a forum for airing details of a sordid conflict that has proven to be a divisive issue? Is he worried about exposing the city to liability in a civil lawsuit if his charges against Mirkarimi are later found to be without merit?
– Does Lee intend for Vicki Hennessy to be the permanent replacement for Mirkarimi if the official misconduct charges are upheld? Will he take into account the will of the voters in electing Mirkarimi, someone who had pledged to uphold and continue the legacy of progressive leadership of the Sheriff’s Department as embodied by the long career of Michael Hennessey? Given that the DSA consistently opposed Hennessey at election time, and that in this election voters rejected the DSA’s choices, why is Lee substituting his own judgment and political preferences for those of San Francisco’s voters? Why did Lee feel a need to take preemptive action against Mirkarimi rather than simply allowing voters to launch a recall campaign, which is the typical remedy for removing politicians who have gone through some kind of public scandal?

UPDATE 3/26: Mayoral Press Secretary Christine Falvey told the Guardian that we would have answers to these questions by Friday, but then sent the following message as a response late Friday afternoon: “Steve, After looking at your questions, it seems Mayor Lee addressed much of this in his comments on Tuesday. After Sheriff Mirkarimi pleaded guilty to a crime of false imprisonment, Mayor Lee made a thorough review of the facts, reviewed his duties under the Charter and gave the Sheriff an opportunity to resign. When that did not happen, he moved to suspend the Sheriff. For any information regarding what is in the charges, I will refer you to the City Attorney’s office and their website that has all of the public documents posted.”

For the record, Lee has not addressed these questions nor made any public statements on whether he will release the advice memo (as even Willie Brown publicly urged him to do) or explained why he’s keeping that document secret. And we haven’t even had the opportunity to ask the mayor these questions directly because he hasn’t held any public events since announcing his decision to remove Mirkarimi.

Mayor Lee ousts Sheriff Mirkarimi

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San Francisco Mayor Ed Lee temporarily removed Sheriff Ross Mirkarimi from office today over a domestic violence case, dragging this long and sordid saga into the summer as city officials prepare a rare official misconduct hearing.

The brief announcement came just minutes after a 24-hour deadline Lee had set for Mirkarimi to resign or be removed. Lee took no questions from the huge crowd of journalists that had packed into his office and offered scant explanations about why he believes the process is warranted and how it will affect the city.

Standing behind Lee were City Attorney Dennis Herrera, with whom Lee had consulted on the decision, and Vicki Hennessy, a retired chief deputy from the Sheriff’s Department who Lee named interim sheriff. Shortly before the announcement, Mirkarimi told reporters he had no intention of resigning.

“He has chosen not to resign and now I must act,” Lee told reporters, emphasizing that “I do so with an understanding of the seriousness and gravity of the situation.”

Lee made no statements about how Mirkarimi’s guilty plea to a misdemeanor false imprisonment charge – reduced down from the three more serious charges he originally faced – rose to the level of official misconduct or why it warrants his removal, other than making general statements about ethics.

“We must always be held to the highest ethical and legal standards,” Lee said, adding that Mirkarimi had failed to do so. “I’m doing what’s in the best interests of the people of San Francisco.”

Time may tell whether that last statement is true, and whether the Ethics Commission and nine members of the Board of Supervisors agree and are willing remove a public official from office in San Francisco for just the third time in the last century.

The mortage crimes

5

EDITORIAL The mortgage crisis in San Francisco isn’t just devastating to homeowners and to the southeast neighborhoods where foreclosures are most common — it’s clear evidence that lenders and their affiliates are and have been acting illegally. This city ought to be taking the lead on pressing civil and criminal charges against the mortgage outfits.

City Assessor Phil Ting commissioned a report in February that showed that nearly every one of 382 foreclosures actions in the city between January 2009 and October 2011 had at least some irregularities. In more than 80 percent of the cases, the report identified direct violations of law.

It’s a stunning revelation: In nearly 100 percent of the cases studied, the mortgage companies did something wrong. Homeowners were not notified that they were in default. Properties were seized and sold by companies that didn’t have the proper title to them. Documents were backdated or signed by an entity that didn’t have the authority to sign. In some cases, it wasn’t clear who actually owned the mortgage, because the corporation that filed for foreclosure had never property taken title to the loan.

The report comes as Occupy protesters in San Francisco are moving aggressively to target banks that are tossing people out of their homes and at a time when county sheriffs in other parts of the country are refusing to execute foreclosure orders.

There may not be much San Francisco Sheriff Ross Mirkarimi can do — mortgage foreclosures in California can be done with almost no oversight and by the time the sheriff is called in there’s nothing left but an eviction. But the report makes clear that there were both violations of business regulations and crimes, in some cases felony crimes — and the San Francisco city attorney and district attorney should be moving as quickly as possible to take legal action.

Both City Attorney Dennis Herrera and District Attorney George Gascon have asked for more material from Ting’s office, although neither has announced a formal investigation. But every day that this goes on, more people lose their homes and more crimes are committed — and both offices should move as quickly as possible to take action.

There’s nothing in the federal settlement over fraudulent mortgage activity that prevents local officials from taking this sort of action. There’s nothing preventing Herrera from seeking an injunction against further foreclosures or preventing Gascon from indicting the lenders and their executives.

Meanwhile, Ting told us that he’s asking Attorney General Kamala Harris to investigate, because the pattern of violations almost certainly goes beyond San Francisco.

State Sen. Mark DeSaulnier has introduced a bill that would mandate transparency in foreclosures, so at least homeowners would know who to contact to seek a modification. That’s a good start. But holding these sleazy operators accountable would send a message that San Francisco isn’t going to let this sort of behavior continue.

Guardian editorial: SF should go after mortgage criminals

16

EDITORIAL The mortgage crisis in San Francisco isn’t just devastating to homeowners and to the southeast neighborhoods where foreclosures are most common — it’s clear evidence that lenders and their affiliates are and have been acting illegally. This city ought to be taking the lead on pressing civil and criminal charges against the mortgage outfits.

City Assessor Phil Ting commissioned a report in February that showed that nearly every one of 382 foreclosures actions in the city between January 2009 and October 2011 had at least some irregularities. In more than 80 percent of the cases, the report identified direct violations of law.

It’s a stunning revelation: In nearly 100 percent of the cases studied, the mortgage companies did something wrong. Homeowners were not notified that they were in default. Properties were seized and sold by companies that didn’t have the proper title to them. Documents were backdated or signed by an entity that didn’t have the authority to sign. In some cases, it wasn’t clear who actually owned the mortgage, because the corporation that filed for foreclosure had never property taken title to the loan.

The report comes as Occupy protesters in San Francisco are moving aggressively to target banks that are tossing people out of their homes and at a time when county sheriffs in other parts of the country are refusing to execute foreclosure orders.

There may not be much San Francisco Sheriff Ross Mirkarimi can do — mortgage foreclosures in California can be done with almost no oversight and by the time the sheriff is called in there’s nothing left but an eviction. But the report makes clear that there were both violations of business regulations and crimes, in some cases felony crimes — and the San Francisco city attorney and district attorney should be moving as quickly as possible to take legal action.

Both City Attorney Dennis Herrera and District Attorney George Gascon have asked for more material from Ting’s office, although neither has announced a formal investigation. But every day that this goes on, more people lose their homes and more crimes are committed — and both offices should move as quickly as possible to take action.

There’s nothing in the federal settlement over fraudulent mortgage activity that prevents local officials from taking this sort of action. There’s nothing preventing Herrera from seeking an injunction against further foreclosures or preventing Gascon from indicting the lenders and their executives.

Meanwhile, Ting told us that he’s asking Attorney General Kamala Harris to investigate, because the pattern of violations almost certainly goes beyond San Francisco.

State Sen. Mark DeSaulnier has introduced a bill that would mandate transparency in foreclosures, so at least homeowners would know who to contact to seek a modification. That’s a good start. But holding these sleazy operators accountable would send a message that San Francisco isn’t going to let this sort of behavior continue.

Will shutting down two businesses really ‘clean up’ the Tenderloin?

21

It was noon on the Jan. 30 when I broke the news to 24-year-old Amer Mousa that the City of San Francisco was filing a civil suit to shut down Walid Abdulrahman, his friend and owner of the Razan Deli on Ellis Street in the Tenderloin.

Two hours earlier, City Attorney Dennis Herrera and San Francisco Police Chief Greg Suhr held a press conference out the front of the Azaal Market on the corner of Leavenworth and Turk streets in the Tenderloin to announce the dual lawsuits against the markets owners, Jaber A. Algahim and Walid Abdulrahman, for maintaining a public nuisance. Our efforts to get comments from Algahim and Abdulrahman were not successful, but Mousa spoke freely about the situation.

The City’s complaint says the deli is a safe haven for criminal activity and that Abdulrahman either allows it to continue unabated or is actively involved himself. It is not hard to understand the logic behind the suit; shut down problem businesses and the neighborhood will heal. But in a City with a history of going after small businesses as if they are the root cause of all criminality, the question remains about whether this is really about helping the neighborhood or about being seen to help.

Abdulrahman does not speak English well, so it was Mousa who answered the phone. When first asked about the store’s involvement in illicit activity, Mousa became flustered, confused, and denied any knowledge of drug activity within the store. “Maybe outside, in the neighborhood, but I wouldn’t risk my job like that,” he said at the time.

Both Abdulrahman and Mousa are from Jordan. Abdulrahman is a close friend of Mousa’s father, so close Mousa refers to him as “uncle.” Mousa came to the U.S. on a greencard in 2009 and has been studying to be a nurse. He met his future wife in school and they married in 2010. Every day he heads into San Francisco from Daly City to work in deli from 10pm until 6am to support his young family.

The Razan Deli is a pokey little deli open 16 hours a day that does not sell alcohol and keeps little stacked on the shelves. It caters for the homeless and street population with candy, burritos, and cheap pre-made frozen meals. Bigger items are left to liquor-selling competitors across the road whose owners refuse to say anything about what happens outside their doors, lest some doped-up gang member decide to make an example of them. When asked, they just stare at the ceiling and say they put their faith in God.

Outside, Ellis Street is quiet, at least during the day, with the exception of a woman in a wheelchair and another leaning against a wall who mumbles something about robbery and cackles to herself. Stopping at any intersection along Turk Street invariably means being approached by dealers. The greatest concentration stand just outside the Azaal Market while they chatter constantly and offer passers-by narcotics with incomprehensible street names.

The lawsuit was the result of a two-year undercover operation by the SFPD that claimed to have found evidence of a “pattern of illegal activity” at each business. The complaint and police statements claim the deli acted as a safe-haven and intermediary for drug dealing and buys stolen goods for resale. To build the case, undercover officers visited a local Walgreen’s and asked the business to donate items before trying to re-sell the product to businesses in the Tenderloin, while slipping in the fact that they were stolen goods.

Police statements say Abdulrahman bought stolen goods and helped facilitate undercover officers buying drugs from the dealers loitering outside the shop. Mousa does not deny that Abdulrahman took the bait on the two occasions he was present. “Look, we’re not angels,” he says. “When the undercover police came, they gave us razors, you know like Gillette, and my uncle bought some stolen merchandise for personal use. He didn’t buy all, he just bought some.”

If true, that would be a very different accusation than the one being made by the city in its civil suit, which has asked the court to close the business and impose an initial penalty of $25,000, additional penalties of $2,500 for “each act of unlawful business practice” and costs for the suit and investigation. In a criminal prosecution, Abdulrahman might receive up to a year in jail for receiving stolen goods of around $200 in value and a separate charge for being an accessory to the sale of a small quantity illicit substances. That is, assuming he is guilty of everything the police say he is. And they have evidence.

Yet none of that matters. Abdulrahman cannot afford an attorney; he will appear self-represented. Either he will be sent into bankruptcy or he will be run out of business. This legal fight seems lopsided, to say the least.

The City of San Francisco has a history of going after small liquor shops and markets in the Tenderloin and the Mission on a crusade to shut down criminal “safe-havens” or “magnets of drug dealing,” as Matt Dorsey, media liaison for the City Attorney’s Office, framed it during a phone conversation about the city’s tactics in choosing to bring a civil claim against Abdulrahman. “Civil cases have lower standard of evidence. Effectively we’re going to try and shut the business down. As they say, the City’s Attorney tries to take their money. The District Attorney puts people in jail,” he said.

The theory goes that shutting down such places will force the criminal element out, leave them nowhere to go and ultimately make the neighborhood a safer place. Randy Shaw, Director of the Tenderloin Housing Clinic (THC) and editor of BeyondChron, has endorsed this view and has said he “cheered” the litigation.

Shaw’s hostility for the Azaal Market, alternatively known as the Barah Market, was plain. His tone indicated the market’s continued existence was a personal slight. “We sued the Maryland and the Barah markets in the 90’s and the Maryland hasn’t been a problem since,” said Shaw, a housing right attorney turned Tenderloin political power broker. Shaw said he welcomes any city efforts to try to clean up the neighborhood. But it’s hard to see how this action will make much difference, particularly given the neighborhood’s open criminality.

“I called the police more than seven or eight times, from the cell phone,” Mousa said. “What did they do? Nothing. They know who the drug dealers are. There’s just two to four drug dealers on the whole block. Most of the others just work for them. If police don’t come and do their job, what am I supposed to do? Start shooting? … If I keep calling the police I’m going to get shot. All I can do is tell them to get outside the store. Go sell your shit outside the store.”

Abdulrahman’s shop will close, that seems like the likely outcome. Once the shutters are drawn, the City Attorney and the Chief of Police will hold another press conference and claim a great victory in their fight to “clean up the neighborhood” in the name of “families and the elderly.” It will sound good on television, and read well in the papers. Everyone will clap and agree that the streets are a safer place for it, but it seems like a huge stretch of imagination to blame the Tenderloin’s problems on these two small businesses.

“I’m a full time student, I have a wife, I’m not living by myself, I cannot live by myself or with some buddies, I need to have a home. After the store closes, what’s going to happen to me? There are no jobs right now. Even if I get a full-time job, how much am I going to make?” Mousa says. “This is just going to destroy two families, two households. What’s going to happen? Nothing’s going to change. There are still going to be drug dealers outside… This neighborhood is broken. It was broken when we got here, it will be broken when we leave.”

How business was done

8

news@sfbg.com

A complicated civil lawsuit alleging corruption and fraud and involving several prominent current and former city officials — including Mayor Ed Lee, who took the witness stand to discuss actions he took as city purchaser a decade ago — could end up costing city taxpayers as much as $10 million.

City and County of San Francisco vs. Cobra Solutions and Telecon was being deliberated by jurors in Superior Court at press time. It centers on a fraud and kickback scheme engineered by convicted felon Marcus Armstrong, a former Department of Building Inspection information technology manager who bilked the city out of at least $482,000 between 1999 and 2001 (see “Dirty Business,” 2/8/11). His scheme was exposed by an FBI investigation following a whistleblower’s complaints in September 2001 that sub-contractors were not being paid.

The City Attorney’s Office accused Cobra Solutions of participating in Armstrong’s fraud, but Cobra’s owners denied being part of the scheme and they say their business was wrongfully damaged when their contracts were frozen by city officials.

Armstrong created two phony companies, Monarch Enterprises and Mindstorm Technologies, and ordered master contractor Cobra Solutions to use the phony sub-contractor companies to provide technology services to the city’s Computer Store (a list of approved contractors) under an agreement awarded to Cobra by the Committee on Information Technology (COIT). It also partnered with another company alleged by the city to be fraudulent, Government Computer Sales, Inc. (GCSI), whose principals fled and whose whereabouts are unknown.

Cobra Solutions founder and president James Brady had raised questions about Armstrong as early as 2000, questions that triggered an unfruitful investigation by the city. Brady maintained in court testimony that Cobra, unaware of Armstrong’s fraud, relied on him to sign off on work services that Armstrong’s phony companies were supposed to have supplied to the city.

The Computer Store was set up by then-Purchaser Ed Lee under the administration of then-Mayor Willie Brown to centralize technology procurement across departments. Now-Mayor Lee was deposed in the case and called to the witness stand on Feb. 6, where he said he awarded Cobra Solutions the highest-rated ranking among several vendors being evaluated by COIT for master contract award status. Each of the other city evaluators, including Deputy Controller Monique Zmuda, also ranked Cobra the top service provider.

According to Armstrong’s guilty plea agreement, GCSI partnered with Armstrong to defraud the City out of $240,000. Deborah Vincent James — then-director of COIT and now deceased — testified in a pre-trial deposition that GCSI was “fraudulent,” that city staffers recommended against certifying the company, and that it was only awarded master contract status because of its political ties to Brown, who directed Lee to overrule the staff recommendation. In his deposition, Lee claimed he could not remember GCSI.

Vincent-James and former Purchasing Directory Judith Blackwell forwarded whistleblower complaints about GCSI to the City Attorney’s Office in early 2001, but neither that office nor the Controller’s Office acted on the complaints until GCSI had gone bankrupt and GCSI’s owners, two foreign nationals, had disappeared.

Of note, Lee was not questioned about his and Brown’s involvement in awarding GCSI its master contract status in 1998. Time restrictions placed on attorneys by Judge James McBride limited the scope of witness examinations, so the most politically explosive charges went largely unexplored in court.

The city completed a subsequent investigation in January 2003 that resulted in stopped payments to Cobra, contract termination, and the city’s civil lawsuit filed by City Attorney Dennis Herrera against Cobra in April 2003. Following Herrera’s filing against Cobra, Herrera demanded an audit of Cobra which Cobra refused, citing a conflict of interest. Herrera had previously represented Cobra in private practice before he was elected City Attorney in 2001.

A trial court ruled in that Herrera had a conflict of interest, disqualifying Herrera and his office from participating in the Cobra case, a ruling later upheld by the California Supreme Court. Yet the suit alleges Herrera and his office continued to supply work to various City agencies and to effectively prevent Cobra from doing further business with city. By withholding the $2 million Cobra was owed by the City, COIT was able to disbar Cobra from entering into master contract agreements with the city, claiming Cobra was fiscally “non-responsible,” according to court testimony.

Blackwell, in her testimony at trial, said the determination of Cobra’s non-responsibility was used as a “pretext” for Cobra’s disbarment, a procedure that should have triggered a hearing to allow Cobra to defend itself against debarment. That never happened.

An FBI investigation into Armstrong’s kickback scheme resulted in Armstrong pleading guilty to mail fraud, wire fraud, and obstruction of justice in July 2003. No criminal charges were ever brought against Cobra Solutions or Telecon and yet the city’s outside law firm, Cotchett, Pitre & McCarthy LLP, which tried the case on behalf of the city, held on to the city’s allegation of fraud committed by Cobra and Telecon throughout the case and trial until closing arguments on Feb. 9.

In his closing arguments, attorney Ara Jabagchourian made no mention of Telecon, effectively dropping the city’s claims against Telecon, and constricted the city’s damage claims against Cobra. He asked the jury to award the city up to $266,000, money paid to Cobra for work authorized and signed-off by the city, via Armstrong, for breaching a provision in the contract agreement between the city and Cobra that requires the master contractor to “supervise” sub-contractors.

But Cobra’s lawyers — the firm of Gonzalez & Leigh, which includes former Board of Supervisors President Matt Gonzalez, who took a leave from his current job as deputy public defender to consult on the case — says it is the city that should pay for fatally harming a business without just cause.

“The City and City Attorney’s office falsely accused Cobra and Telecon of stealing $2.4 million dollars from the City, destroying these companies and ruining the lives of good, decent people who were the victims of a city tech official who should not have been hired in the first place,” said attorney Whitney Leigh. “Then the City Attorney made it worse, flatly defying an order disqualifying the City Attorney’s Office and instead driving efforts to run Cobra and Telecon out of business just because Cobra raised the issue of the conflict of interest. I’ve been unable to find any case in which an attorney has so flagrantly ignored a disqualification order.”

Herrera can’t comment on the case, but his office previously told the Guardian, “Immediately upon discovery of Cobra’s role, the office screened Herrera off from further involvement in the investigation and all matters related to it in accordance with a stringent ethical screening policy Herrera established when he took office.”

The-City Controller Ed Harrington, who exerted significant influence over contract awards and debarment proceedings as chair of COIT, conceded in court testimony that internal controls failed to detect Armstrong’s scheme.

“In the case of Marcus Armstrong, the control within the city failed and the control within Cobra failed,” Harrington, now head of the San Francisco Public Utilities Commission, told the court. “We had both controls in place. If they had worked, the city would have been protected. Both failed.”

Cobra is seeking damages for breach of contract (the city’s failure to pay monies owed Cobra), and civil rights due process violations in connection with the city’s apparent conspiracy to bar Cobra from doing further business with the city.

A business valuation expert testified Cobra Solutions was valued between $5.2 million and $8.8 million based on future lost profits from the city’s debarment. With attorney fees and court costs, the city could be on the hook for as much as $10 million.

The city has subsequently established more stringent controls as it relates to the authorization of work assigned to master contractors and sub-contractors. The jury was expected to resume deliberations on Feb. 14 and deliver its verdict by week’s end. Check the SFBG.com Politics blog for the latest.

San Francisco celebrates same-sex marriage ruling

30

While the usual procession of heterosexual couples beamed as they said their wedding vows on City Hall’s Grand Staircase this morning, a historic celebration took place in the South Light Court: hundreds applauded the announcement that same-sex couples are a big step closer to achieving equality in the basic right to marry.

The Ninth Circuit Court of Appeals held today that Proposition 8, which eliminated same sex marriage rights for couples in California, violates the Equal Protection Clause of the U.S. Constitution.

The court ruled that Prop. 8 served no purpose but to discriminate against one class of people, and the Constitution does not allow for “laws of this sort.”

The ruling specifically addressed the arguments advanced by proponents of Prop 8 that gay marriage would interfere with childrearing and religious freedom in the state.

“All parties agree that Proposition 8 had one effect only. It stripped same-sex couples…of the right to obtain and use the designation ‘marriage’ to describe their relationships. Nothing more, nothing less,” the judges wrote.

The ruling does not mean that marriage licenses will immediately be issued to same sex couples. A stay on the ruling has not been lifted. But the stay could be lifted in as early as 21 days from now. But more probably, it will take months or even years; the case is likely to go to the U.S. Supreme Court.

Chief Deputy City Attorney Terry Stewart – the lead attorney that defended San Francisco’s 2004 decision to issue marriage licenses to same-sex couples, which later triggered the Prop. 8 campaign – said the city is eager to see marriage equality, and that “city mechanisms and machinery stand ready to do whatever we can to expedite the process.”

The decision was based partly on logic that, since LGBTQ Californians already have parental rights and the right to domestic partnerships, denying them the right to marry could not be rationalized. City Attorney Dennis Herrera said that this is a “narrow decision,” meaning that if the Supreme Court upholds the ruling, it would apply only to California.

There remains a possibility that the Supreme Court will reject the case, and in that situation the Ninth Circuit decision striking down Prop. 8 would take immediate affect.

Members of the Bay Area coalition of Welcoming Congregations were present at the announcement.

“I’m jubilant,” said Rev. Roland Stringfellow of the Pacific School of Theology in Berkeley. “When it comes to equality, this is something we preach.”

He adding that his church had been performing same-sex marriages since the 1970s, and that he eagerly awaits legal recognition of his own union with his partner.

Sup. Scott Wiener acknowledged, “the fight is not over yet.”

But he said, “Every so often we get a court ruling that reaffirms our faith in the judicial system…this is a time for us to come together and celebrate.”

California political leaders issued several statements praised the court’s decision.

“The court has rendered a powerful affirmation of the right of same-sex couples to marry. I applaud the wisdom and courage of this decision,” said Gov. Jerry Brown.

Mayor Ed Lee issued a statement saying:
“I celebrate the decision by the Ninth Circuit Court today. This is a great day for marriage equality and a great day for California families. The Court affirmed today that there is nothing in the Constitution that allows discrimination and we are on our way to protecting the fundamental rights of everyone in our State. And, we will continue the fight until everyone is treated equally.  

“San Francisco stands ready to begin marrying same sex couples, and we remain as deeply committed to the fight for marriage equality today as we did nearly eight years ago when then Mayor Gavin Newsom started one of the most important civil rights issues of our generation to ensure equality for all.

“I would also like to acknowledge the tireless work of our City Attorney Dennis Herrera and his team in defense of marriage equality and the California Constitution these last eight years. Together, we will take this fight all the way to the nation’s highest court, if necessary.”

Sup. Elsbernd ducks more Impertinent Questions

4

Well, I am sad to report that my neighborhood supervisor, Sean Elsbernd, has once again refused to answer my Impertinent Questions and to say if he voted for Ed Lee for mayor. Perhaps I will tell you, he says, perhaps not and he chose to perhaps not. He has thus refused to shed light on his role in one of the most fateful nominations in San Francisco history.

 Here’s the latest version of the almost famous Que Syrah correspondence between Elsbernd and me on these critical Impertinent Questions. (As attentive readers of this blog know, I have been trying for months to get Elsbernd to meet me to talk about these questions at Que Syrah, a nifty little wine bar in the West Portal area of Elsbernd’s district. I am still trying.)

 When Willie Brown, Rose Pak, and the downtown gang were plotting their move  to outfox the progressives in City Hall in January  and install Ed Lee as the interim mayor, they chose Sean Elsbernd to take the lead and nominate Lee for this crucial job.

 He intoned at the time and later in writing to me that he was nominating Lee only on condition that Lee would serve as an interim mayor to fulfill the vacancy created by then Mayor Newsom who was off to Sacramento as the newly elected lieutenant governor. Lee, Elsbernd emphasized, thumping the lectern, would not run for mayor.

 Well, the Guardian and many progressives and I said at the time that this was just the Willie and Rose play, to get Lee in as interim mayor and then roll him over to run for mayor in the fall with the major advantage of incumbency.

 And so when Lee as we expected changed his mind and ran for mayor, Elsbernd was left in the position of being a key player in the plot to put Lee into the mayor’s office under false pretenses. And of course in the process he would ace out two more qualified candidates, former Mayor Art Agnos, and retiring sheriff Mike Hennessey.. Both were ready to serve as interim mayor and both pledged they would not run for mayor and most important neither would operate as enablers for Willie, Rose, and their undisclosed clients. (Willie, for starters, is on a  $200,000 plus a year retainer for PG&E, according to PG&E filings with the California Public Utilities Commission.)

 When the tide of sleaze started rising in the mayor’s office and Willie, Rose, and the gang were pounding on Lee to run, I asked Elsbernd another Impertinent Question: Would he have nominated Lee if he knew Lee was going to reverse field and run for mayor?

Elsbernd replied that he had not endorsed anyone, but that “I have been most attracted to the candidacies of City Attorney Dennis Herrera and former Supervisors Alioto-Pier and Bevan Dufty.” He said that these three have the “right combination of qualifications, experience, intelligence, skills and integrity to serve as mayor. Should Mayor Lee run for election, I would only consider endorsing his effort under one circumstance—if, and only if, I was convinced that without his candidacy, Sen. Leland Yee would be elected. That is, if I see that no one else can beat Sen, Yee other than Mayor Lee, then I would support a Mayor Lee campaign. At this point, I’m not convinced of that—I still think any one of the three I mentioned above could beat Sen.Yee.”

Just before election day when Lee was running solidly ahead in the polls, I posed more Impertinent Questions to Elsbernd: who did he support for mayor and why? He replied that he had not yet voted and had not endorsed a candidate and then stated, “Talk to me on November 9 and perhaps I’ll tell you who I voted for. Rest assured, the Bay Guardian’s endorsements will certainly influence my decision-making process.”

And again,  after Lee won handily thanks in large part to the decisive advantage that Elsbernd helped give him, I took Elsbernd up on his promises and emailed him more Impertinent Questions: Who  did he vote for and why? He ducked again and asked me to read his “original email” and to note the significance of the word “perhaps.”

Perhaps he would tell me, perhaps he wouldn’t tell me. He chose not to tell me, and the rest of his constituents,  why he made the nomination as a “neighborhood” supervisor  that helped return Willie, Rose, and the downtown gang to power in City Hall.

His explanation was classic Elsberndese and I quote it in full in all of its elegance.

”Another e-mail?  Another entry in your blog? And now a deadline?  At what point am I going to start receiving a byline in the “Guardian?” I am not going to share with you and your readers for whom I voted.  I’ll keep that one between me and my ballot.  I voted for 3 candidates who I believed had integrity, intelligence , and some grasp of the daunting fiscal challenges facing the State and the City.

“Am I happy with the results?  Again, I’m going to deflect that question because I have learned in the short time I’ve been around here, that focussing on wins and losses of past elections can take you down a rabbit hole from which you’ll never recover.  Rather, the most pragmatic thing I can do for my constituents, which is, after all, what I am here to do, is to recognize the result, accept it, and move forward with it.  Ed Lee is now San Francisco’s Mayor-elect, and I am very excited about being able to work with him during my remaining 13 months in office.  He and I worked extremely well together in developing Proposition C, which the voters overwhelmingly endorsed (and, yes, thank you to the Guardian for your endorsement – you actually got a few right this year).

“We have had some policy disagreements (e.g.  Proposition B), but I have always found him to be open to dialogue, extremely deliberate and thoughtful, and, most importantly, honest.  When we have disagreed, he has explained why and has done so with a logical argument.  While that may sound simple, I can assure you, that is a rare characteristic in this building and it is one I very much appreciate. Have fun parsing this e-mail apart.”

Final Impertinent Questions: If Elsbernd really finds Lee “open to dialogue, extremely deliberate and thoughtful and most importantly honest” and Lee explains his disagreements with Elsbernd with “a logical argument,” how in the world does Elsbernd explain the months of lies and deceptions by Lee before he decided, gosh, golly, gee, that he changed his mind and  was running for mayor after all? How does Elsbernd explain how the sleaze continues to rise in Lee’s office?  How does Elsbernd explain why, as a “neighborhood” supervisor, that he has once again followed the Willie Brown/RosePak/downtown gang agenda by introducing a June 2012 charter amendment to repeal rank choice voting, with public financing and perhaps even district elections in his gun sights? Wasn’t this all part of the master plan to gut progressive measures to level the playing field on local  elections?

Sean? Sean? Let’s talk about all of this this over flights of the wondrous wines from small, locally owned wineries and the Barcelona -style tapas served up  at Que Syrah. To that end, I will keep sending you the notices of Que Syrah special events. B3

 

 

Rank complaints

27

steve@sfbg.com

Even before all the votes had been cast on election day, the two most conservative members of the San Francisco Board of Supervisors proposed a ballot measure to repeal the city’s ranked-choice voting (RCV) system, prompting all the usual critics of this voter-approved electoral reform to denounce it as confusing and undemocratic.

Those same two supervisors, Sups. Sean Elsbernd and Mark Farrell, were also the ones who unsuccessfully pushed for a weakening of the public financing system last month, changes that will likely be wrapped into discussions in the coming weeks over how elections are conducted in the city. And progressive supporters of both systems warn that district supervisorial elections will probably be the next target of this concerted push to roll the clock back on electoral reforms in the city.

"The [San Francisco] Chronicle and the [San Francisco] Chamber [of Commerce] have been at it from day one," Steven Hill, who helped crafted both the RCV and public financing systems, told us. "They’re really clear about what they want to eliminate, so we should be clear about what we need to defend and we can’t get confused by this."

Indeed, the Chronicle ran an editorial Nov. 14 advocating the repeal of ranked-choice, calling it "a fundamentally flawed system that is fraught with unintended consequences." The paper, as well as its allies at the Chamber and other downtown institutions, has been equally vociferous in criticizing public financing and district elections.

Hill said that’s because moneyed interests prefer systems that they can manipulate using the millions of dollars in unregulated independent expenditures they can summon — an ability they demonstrated again in his election on behalf of Mayor Ed Lee — such as low-turnout runoff elections, citywide supervisorial races, and elections without the countervailing force of public financing. "They’ve been doing this steadily and looking for ways to chip away at it," Hill said.

But conservatives aren’t the only ones raising questions about RCV; some progressives say the system needs adjustment, too.

Although Farrell opposes all three of those electoral reforms, he insists that his concerns about RCV are about voter confusion and the perception that winners don’t have majority support and could be viewed as illegitimate. "There is just so much voter confusion out there," Farrell said, citing comments from voters who don’t understand how their votes are tabulated to produce a winner.

Hill counters that voters do have a clear understanding of how to rank their choices, downplaying the importance of whether they understand all the details of what happens next. But Farrell said that and the majority rule issue have undermined people’s faith in the elections.

"People get very upset when they realize someone didn’t get a majority of the vote," he told us, referring to how the majority threshold drops as voters’ top three candidates are eliminated. "To me, it’s just simpler to go back to the runoff system."

Many moderate politicians agree. "I don’t like ranked choice voting and I never have," City Attorney Dennis Herrera, who finished third in the mayor’s race, told us on election night. "I defended it all the way to the 9th Circuit [Court of Appeals in his role at City Attorney], but I think it’s bad policy."

Sup. Scott Wiener, a Herrera supporter we spoke to at the same election night party, also wants to see a change. "I supported ranked-choice voting and until recently I continued to support it, but this race changed by mind," Wiener said, attributing the large mayoral candidate field and free-for-all debates to RCV. "There is no way most voters will be able to distinguish among the candidates."

But Hill says it’s a mistake to attribute the large field to RCV, or even to the public financing system that some are also trying to blame, a problem he said can be addressed in other ways, such as changing when and how candidates qualify for public matching funds.

Wiener said he hasn’t made up his mind about repealing RCV, and he said that he absolutely opposes a return to the December runoff election. One alternative he suggested was a system like that in place in New York City, with the initial election in September and the runoff during the general election in November. But he does think some change is needed, and he’s glad Elsbernd and Farrell proposed an RCV repeal.

"They’re starting a conversation with the repeal, but that’s not where it’s going to end," Wiener said.

Indeed, the system still has the support of most progressives, even Sup. John Avalos, who finished second in the mayor’s race and would now be headed into a runoff election against Ed Lee under the old system. "I continue to support ranked choice voting," Avalos told us. It takes six supervisors to play the charter amendment repealing RCV on the ballot.

Sup. Ross Mirkarimi, who was narrowly elected sheriff in the ranked-choice runoff despite a 10-point lead in first place votes, said of the Farrell and Elsbernd proposal, "I do want to hear their criticisms."

"I understand the larger discussion, which was a bit of a misguided approach that some of our colleagues used to go after ranked choice voting on election day," Mirkarimi said. "But they are good politicians and they seized an opportunity."

Mirkarimi did say he was open to "maybe some tweaks. I do think ranked choice works better when you have many choices." Others, such as former Sup. Matt Gonzalez, have also recently advocated a ranked-choice system that allows more choices, which would address the majority-vote criticism because fewer ballots would be exhausted.

Hill said the legislation that voters approved back in 2002 already calls for more choices, but the technology used in the city’s current system only allows three choices. Yet he said the city’s vendor, Dominion Voting Systems, has developed a system allowing up to 11 choices, for which it is currently seeking federal certification.

Although he said various tweaks are possible, "I think the system worked well in this election," Hill said, noting that few San Franciscans would have wanted to drag this long campaign out by another month or to pay for another election.

Anyone but Lee

198

tredmond@sfbg.com

Two weeks ago, the race for mayor of San Francisco seemed in the bag. Mayor Ed Lee was so far ahead in most polls that everyone else looked like an also-ran. A Bay Citizen simulation of ranked-choice voting showed Lee getting enough seconds and thirds to emerge easily as the winner. His approval rating with voters was above 70 percent. The money was pouring in to his campaign and to the coffers of independent expenditure committees promoting him.

But that was before the voter-fraud scandals, OccupySF, Sup. John Avalos appearing on national TV, a controversial veto, Sup. David Chiu getting the endorsement of the San Francisco Chronicle, and an attack on City Attorney Dennis Herrera backfiring.

“It’s changing,” Corey Cook, a political scientist at the University of San Francisco, told us. “I don’t know whether it’s tightening up, but it’s certainly changing.”

One campaign consultant, who asked not to be named, was more blunt: “The Lee campaign is one bad news story away from free-fall.”

That’s not to say Lee is going to lose, or even that he’s anything but the clear front-runner. But over the past week, as Lee has taken a series of hits, supporters of the other candidates — particularly Herrera and Avalos — are starting to wonder: Could somebody else really win?

The answer, of course, is yes — anything can happen in the week before an election. But defeating Mayor Lee will take a confluence of events and strategies that starts with a big progressive turnout — and with voters who don’t like the idea of an incumbent with ties to a corrupt old political machine carefully allocating their three ranked choices.

 

NO SURPRISE

So far, there’s been no crushing “October surprise” — no single event or revelation that can change the course of the election. And the impact of anything that happens in the next few days will be blunted by the fact that 27,000 absentee ballots have already arrived at the Department of Elections.

By all accounts, Lee’s campaign and the somewhat sketchy independent expenditure groups that are working in parallel, if not in concert, have done an impressive job of identifying and turning out absentee voters. Local consultants from most of the campaigns agree that at least 20 percent of the final turnout will be Chinese voters — and Lee will get at least 75 and as much of 90 percent of that vote.

But as Cook notes, there are still “huge undecideds” for this late in a race. And while Lee was polling above 30 percent a few weeks ago, by most accounts his numbers have been dropping steadily. One recent poll shows him falling 10 points in the past two weeks, leaving him closer to 20 percent than 30 percent.

“If the election were held three weeks from now, he’d lose,” said one consultant who asked not to be identified by name.

What’s happened? A confluence of factors have put the incumbent in a bad light.

The voter-fraud allegations have made headlines and the district attorney is discussing a criminal investigation. Although Lee and his campaign weren’t directly involved — the possibly illegal efforts to steer voters to Lee were run by one of the IEs — the last thing a politician wants to see in the waning days before an election are the words “voter fraud” and “criminal investigation.”

And the allegation — that Lee supporters in Chinatown filled out ballots for absentee voters then collected them for later delivery — play right into Lee’s weakness. While voters generally have good impressions of his work at City Hall, the fact that he’s connected to sleazy operators and tied to the old discredited Brown machine continues to haunt him. And this sort of activity simply re-enforces that perception.

The Leland Yee campaign has taken direct advantage of that perception, releasing a parody of the hagiographic Lee biography written by political consultant Enrique Pearce. “The Real Ed Lee story,” which repeatedly talks of his connections to unethical power brokers, hit the streets this past weekend.

Lee also sided with the San Francisco Chamber of Commerce over a coalition of labor and consumer groups with his veto of legislation by Sup. David Campos that would have prevented employers from draining $50 million per year from health savings accounts set up to comply with city law. Many restaurants even tack a 3-5 percent surcharge onto customers’ bills, making it essentially consumer fraud.

“It’s important for us to take a stance on the issue and say that what the mayor did was wrong,” Campos told us. “It’s a defining issue for us in City Hall.”

Then there’s OccupySF. Nobody knows for sure, but it’s likely that a majority of San Franciscans are at least somewhat sympathetic to the group’s message. And Lee has so far avoided the public relations disaster of Oakland’s crackdown.

But the left is unhappy with Lee’s constant threats to clear out the encampment, and the right is unhappy that he hasn’t sent in the cops already — and even the San Francisco Chronicle has denounced his lack of decisiveness.

Lee put the police on high alert and had them moving around in buses, ready to move in — than at the last minute changed his mind. “What this shows,” said former Supervisor Aaron Peskin, “is that we don’t have a mayor with a firm hand on the tiller.”

Most observers expected that the Chronicle would join the San Francisco Examiner and endorse Lee. But the paper came down on the side of Supervisor David Chiu. Chiu is still running well behind in the polls, and not that many voters follow the Chron’s advice, but the endorsement was a huge boost to his campaign.

“Ed Lee’s had a bad couple of weeks, and some of the others have had a good couple of weeks,” Cooks said.

 

RANKED CHOICE

Ranked-choice voting puts an interesting twist into all of this. Several consultants and election experts I talked to this week said that Lee would be far more vulnerable in a traditional election. “He would lose a runoff against almost any of the top challengers,” one person said.

But every poll that’s tested the ranked-choice scenario — even recent polls that show Lee faltering — still put him on top after the votes are all tallied and allocated. That’s in part because supporters of candidates who are lower in the pack — Chiu, for example — tend to put Lee as a second or third choice. The Bay Citizen/USF poll showed that when Chiu was eliminated, most of his votes wound up going to Lee.

“Ranked-choice voting clearly favors incumbents,” Cook told me.

And, people walking precincts say, there are still some Herrera and even Avalos voters who put Lee second or third. And the only way Avalos — or anyone other than Lee — can win the election is if progressive and independent voters stick to a clear “anyone but Lee” voting strategy.

Avalos is doing well in recent polls; in fact, one shows him ahead of Herrera in first-place votes. Herrera does better when seconds and thirds are counted. Michela Alioto-Pier gets a fair number of first-place votes, which isn’t surprising since she’s one of only three women in the race, the only woman with citywide name recognition — and the only real credible conservative.

Yee and Chiu are both in the running, and Yee has come out strong attacking Lee and is running hard for progressive votes. He showed up at OccupySF the night a police raid was threatened and has been the leading critic of the alleged voter fraud.

Cook says a scenario where somebody beats Lee is still “an inside straight” — but it’s not at all impossible.

If Lee gets 30 percent of the first-place votes, most observers (including his opponents) agree that he’s going to cruise to victory. But if his first-place total is closer to 20 percent, and one or more of the other candidates are within five points, it’s going to be a lot closer.

Here’s the bottom line: If you don’t want to see a repeat of the late 1990s, when Willie Brown was mayor and City Hall was for sale to the highest bidder, vote for anyone but Lee — and use your three votes strategically. If you like John Avalos, put him first — but give your second-place vote to Herrera, who seems positioned right now to be the other strongest challenger. If you like Herrera, give your second to Avalos. If you like Leland Yee or David Chiu, make sure that Avalos and Herrera are also on your slate.

Fill out all three votes. And get your friends and family to the polls. Because turnout is projected to be low, which helps Lee — and the race may well be decided on the basis of who shows up November 8th.

On Guard!

4

news@sfbg.com

 

VICTORY’S MUDSLINGING

Hit pieces are common in San Francisco politics. So, sadly, are negative mailers funded by outside independent expenditure committees that can raise unlimited money.

But it’s highly unusual for an organization devoted to electing queer candidates to fund an attack on a candidate who is endorsed by both leading LGBT organizations and is, by all accounts, an ally of the community.

That’s what happened last week when the Washington-based Victory Fund — the leading national organization for LGBT political candidates — sent out a bizarre mailer blasting City Attorney Dennis Herrera for taking money from law firms that do business with the city.

The Victory Fund has endorsed former Sup. Bevan Dufty, who is the most prominent LGBT candidate in the mayor’s race. That’s to be expected; it’s what the Victory Fund does.

But why, in a race with 16 candidates, would the fund go after Herrera, who has spent much of the past seven years fighting in court for marriage equality? Why try to knock down a candidate who has the support of both the Harvey Milk Club and the Alice B. Toklas Club?

It’s baffled — and infuriated — longtime queer activist Cleve Jones, who is a Herrera supporter. “I have long respected the Victory Fund,” Jones told us. “But I’ve never seen them do what they did here. And it’s going to undermine the fund’s credibility.”

Jones dashed off an angry letter to the fund’s president, Chuck Wolfe, saying he was “appalled that this scurrilous attack, in the waning days of a mayoral campaign, would go out to the San Francisco electorate under the name of the Victory Fund.

“You really screwed up, Chuck, and I am not alone in my anger.”

We couldn’t get Wolfe on the phone, but the fund’s vice president for communications, Denis Dison, told us that the mailer “is all about fighting for our endorsed candidates.”

So how does it help Dufty, in a ranked-choice election, to attack Herrera? (In fact, given the dynamics of this election, the person it helps most is probably Mayor Ed Lee). Dison couldn’t explain. Nor would he say who at the fund decided to do the attack mailer.

But there are a couple of interesting connections that might help explain what’s going on. For starters, Joyce Newstat, a political consultant who is working for the Dufty campaign, is active in the Victory Fund, sits on the board of the fund’s Leadership Institute, and, according to a March 24 article in the Bay Area Reporter, was among those active in helping Dufty win the Victory Fund endorsement.

But again: Supporting Dufty is one thing. Attacking Herrera is another. Who would want to do that?

Well, if there’s one single constituency in the city that would like to sink Herrera, it’s Pacific Gas and Electric Co. And guess what? PG&E Governmental Affairs Manager Brandon Hernandez chairs the Victory Fund’s Leadership Institute. PG&E’s corporate logo appears on the front page of the fund’s website, and the company gave the Victory Fund more than $50,000 in 2010, according to the fund’s annual report.

Dison insisted that neither Hernadez nor anyone else from PG&E was involved in making the decision to hit Herrera and said the money went to the Leadership Institute, which trains LGBT candidates, not directly to the campaign fund.

Maybe so –- but the folks at the private utility, who are among the top three corporate donors to the Victory Fund, have to be happy. (Tim Redmond)

 

 

HERRERA HIT BACKFIRES

Herrera was also the target of another attack on his LGBT credentials last week, this one by the San Francisco Chronicle, which ran a front page story on Oct. 26 in which anonymous sources said he raised doubts in private City Hall meetings about San Francisco’s decision to issue same-sex marriage licenses in 2004. It was entitled, “Fight turns ugly to win gay votes in mayor’s race.”

Despite trying to couch the hit in passive language, writing that ” a surprise issue has emerged” based on accusations “leveled by several members of former Mayor Gavin Newsom’s administration,” it was clear that it was the Chron that made it an issue, for which the newspaper was denounced by leaders of the LGBT community from across the political spectrum at a rally the next day.

“Those who are saying this now anonymously are as cowardly as Dennis and Gavin were courageous back then,” said Deputy City Attorney Theresa Stewart, the lead attorney who defended San Francisco’s decision in 2004 to unilaterally issue marriage licenses to same-sax couples, in defiance of state and federal law, which eventually led to the legalizing of such unions. “We can’t have our community turn on us for petty political gain.”

“WTF, Chronicle?” was how Assemblymember Tom Ammiano began his speech, going on to lay blame for the attack on surrogates for Mayor Ed Lee. Ammiano also called out the mayor for campaign finance violations by his supporters, for undermining the Healthy San Francisco program that was created by Ammiano’s legislation, and for repeatedly ordering police raids on the OccupySF encampment.

“How about some fucking leadership?!” Ammiano said.

Cleve Jones, an early gay rights leader who marched with Harvey Milk, also denounced Lee and his supporters for cronyism, vote tampering, money laundering, and the “fake grassroots” efforts of the various well-funded independent expenditure campaigns, which he said have fooled the Chronicle.

“To the Chronicle and that reporter — really? — this is what you do two weeks before the election? You should be ashamed of yourself,” Jones said. “How stupid do you think we are?”

Yet Chronicle City Editor Audrey Cooper defended the article. “Clearly, I disagree [with the criticisms],” she told the Guardian. “I personally vetted every one of the sources and I’m confident everything we printed is true.” She also tried to cast the article as something other than a political attack, saying it was about an issue of interest to the LGBT community, but no LGBT leaders have stepped up to defend the paper.

Beyond criticizing the obvious political motivations behind the attack, speakers at the rally called the article bad journalism and said it was simply untrue to suggest that Herrera didn’t strongly support the effort to legalize same-sex marriage from the beginning.

“I can tell you that Dennis never once shrank from this fight. I was there, I know,” Stewart said, calling Herrera “a straight ally who’s devoted his heart and soul to this community.”

Sen. Mark Leno, who introduced the first bill legalizing same-sex marriage to clear the Legislature, emphasized that he isn’t endorsing any candidates for mayor and that he didn’t want to comment on the details of the article’s allegations. But he noted that even within the LGBT community, there were differences of opinion over the right timing and tactics for pushing the issue, and that Herrera has been a leader of the fight for marriage equality since the beginning.

“I am here to speak in defense of the character and integrity of our city attorney, Dennis Herrera,” Leno said, later adding, “I do not appreciate when the battle for our civil rights is used as a political football in the waning days of an election.”

Molly McKay, one of the original plaintiffs in the civil lawsuit that followed San Francisco’s actions, teared up as she described the ups and downs that the case took, working closely with Herrera throughout. “But this is one of the strangest twists I can imagine,” she said of the attack by the Chronicle and its anonymous sources. “It’s ridiculous and despicable.”

Representatives for both the progressive Harvey Milk LGBT Democratic Club and fiscally conservative Alice B. Toklas LGBT Democratic Club also took to the microphone together, both saying they often disagree on issues, but they were each denouncing the attack and have both endorsed Herrera, largely because of his strong advocacy for the LGBT community.

Sup. Scott Wiener called Herrera, “One of the greatest straight allies we’ve every had as a community.”

When Herrera finally took the microphone, he thanked mayoral opponents Joanne Rees and Jeff Adachi for showing up at the event to help denounce the attack and said, “This is bigger than the mayor’s race. It’s bigger than me.”

He criticized those who would trivialize this issue for petty political gain and said, “It was my pleasure and honor to have been a part of this battle from the beginning — from the beginning — and I’ll be there in the end.” (Steven T. Jones)

 

 

BUYING REFORM

UPDATE: THIS ITEM HAS BEEN CHANGED FROM THE PRINT VERSION TO CORRECT INACCURATE INFORMATION DEALING WITH WHETHER PAST INIATIVES CAN BE CHANGED

October yielded tremendous financial contributions from real estate investors and interest groups for Yes on E, feeding fears that the measure will be used to target rent control and development standards in San Francisco.

Sup. Scott Wiener has been the biggest proponent for Prop E since May 2011. He argues that the Board of Supervisors should be able to change or repeal voter-approved ballot measures years after they become law, saying that voters are hampered with too many issues on the ballot. Leaving the complex issues to city officials rather than the voters, makes the most sense of this “common sense measure”, Wiener calls it.

But how democratic is a board that can change laws approved by voters? Calvin Welch, a longtime progressive and housing activist, has his own theory: Wiener is targeting certain landlord and tenant issues that build on the body of laws that began in 1978, when San Francisco voters first started adopting rent control and tenants protection measures. Yet the measure will only allow the board to change initiatives approved after January 2012.

“That is what the agenda is all about — roughly 30 measures that deal with rent control and growth control,” he said. Critics say  the measure will leave progressive reforms vulnerable to a board heavily influence by big-money interests. Although Wiener denies Prop E is an attack on tenants, who make up about two-thirds of San Franciscans, the late financial support for the measure is coming from the same downtown villains that tenant and progressive groups fight just about every election cycle. High-roller donations are coming straight from the housing sector, which would love a second chance after losing at the ballot box.

Contributions to Yes on E include $15,000 from Committee on Jobs Government Reform Fund, $10,000 from Building Owners and Managers Association of SF PAC, another $10,000 from high-tech billionaire Ron Conway, and $2,500 from Shorenstein Realty Services LP. Then — on Oct. 28, after the deadline for final pre-election campaign reporting — the San Francisco Association of Realtors made a late contribution of another $18,772, given through the front group Coalition for Sensible Government.

Prop. E is organized so that the first three years, an initiative cannot be subject to review. However after four years, a two-thirds majority vote by the board could make changes, and after sevens years, a simple majority could do so.

 (Christine Deakers)