Mayor Lee

Editorial: The flight from San Francisco

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EDITORIAL There is no simple free-market solution to gentrification and displacement. There’s no way a crowded city like San Francisco can simply rely on the forces of supply and demand to protect vulnerable populations. And there’s no way the city’s flawed housing policy can prevent the loss of thousands of San Franciscans — particularly young, creative people who help keep a city lively — from fleeing to a town where they can actually afford the rent.

Richard Florida, the famous social and economic theorist who coined the term “creative class” argues that artists and writers and geeks and musicians are the forces that drive modern economies. His pioneering 2002 essay in the Washington Monthly was titled “Why cities without gays and rock bands are losing the economic development race.”

Florida’s something of an elitist and he ignores the contributions that tens of thousands of others (including retired people, union members and nonprofit workers) make a community. He idolizes tech culture and often ignores issues like class and race.

But he’s got a point: Nobody who’s doing anything cool wants to live in a city where everyone is rich and everything is clean and boring. And that’s the danger San Francisco faces.

Just go over to Oakland for a few days and talk to all the people who were once part of this city’s cultural scene. They’ll tell you what anyone with any sense knows: You don’t attract creative people to a city by giving out tax breaks for corporations and building fancy office space. The rock bands that Florida talks about aren’t going to stay in a city because it has high-end jobs for people with advanced degrees. Artists need a place where they can afford the rent.

San Francisco is still a great urban center, by any possible standard, and has all the qualities of diversity, openness, energy, politics and fun that have made generations of immigrants from all over the world want to make it their home. But at a certain point, housing becomes more important than all of the other development issues that local government can address.

Take Andy Duvall, a musician we interviewed who was part of San Francisco for 15 years before he was literally priced out of town. For half of what he was paying in the Mission, Duvall has more than twice the space in Oakland — and the situation is just getting worse. While most of the country is still mired in a deep housing slump (and parts of San Francisco are facing a foreclosure crisis), rents in this town are soaring, beyond the affordability of almost anyone who currently lives here. According to the city’s own statistics, only about 10 percent of San Franciscans can afford the rent on a median market-rate apartment. That means if they’re evicted or lose their homes, they have to leave town.

The supervisors held a hearing April 9 on affordable housing, and the message was profound: “Affordable housing preserves the neighborhood in more ways than one; residents are the foundation on which the economy is built. From any angle, if we can’t afford to live here, there is no city,” observed Val Sinckler, a Western Addition resident.

But while the mayor is working to attract companies that will pay high-end salaries to people who can afford to pay far more rent than the average San Franciscan, he’s a long way from coming up with the money to even begin to mitigate the problem.

An effective policy to preserve San Francisco requires strict regulation (to prevent evictions and displacement), a mandate that commercial developers build housing for their workforce and that residential developers meet the needs of low- and moderate-income residents — and a large investment of public money in affordable housing. If Lee isn’t willing to talk serious about those three crucial elements, then he’s presiding over the decline of one of the world’s coolest cities.

 

 

Guest opinion: It’s not about Mirkarimi, it’s about us

Zelda Bronstein
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Guest opinion: It’s not about Mirkarimi, it’s about us

Virtually unmentioned in the torrent of words that have flowed over the Ross Mirkarimi false imprisonment, suspension and pending vote to determine his removal by the Board of Supervisors is any reference to what should now be the most important issue to be considered as the sad saga unfolds: the fact that Mirkarimi was, just four months before his removal, elected by a majority vote and his removal from office would simply set aside that vote, diminishing all of our cherished beliefs about “majority rule.”

Mirkarimi didn’t just win, he won big. He beat the second place candidate by nearly 19,000 votes, winning outright without the need for the magic of instant run-off. Mirkarimi got more first place votes than did Ed Lee (70,204 vs. 59,663). Moreover, Mirkarimi’s election was without controversy, complaint or charge of illegality, unlike Ed Lee’s, which resulted in a total of 25 misdemeanor convictions for illegal campaign contributions by a city contractor with a pending contact before a commission appointed by the mayor.

Since the 5-4 vote of the Supreme Court to give George Bush the election in 2000 after Al Gore won a majority of the popular vote, there has been a distressingly frequent willingness by the media to accept executive and judicial actions that set aside popular votes. The conservative governor of Michigan has simply taken over local governments that he deems financially “irresponsible” setting aside the votes of local residents. In California, a tiny minority of Republican legislators, elected by a comparative handful of voters, yearly stymie the overwhelmingly majority elected legislators, forcing deeply unpopular budget cuts — and the media simply goes along.

Majority rule, the very bedrock of representative democracy, seems unnervingly easy to set aside now days. Majority rule is our bedrock because it’s the only way in which our system has to define the political will of the people. Let’s be clear, the very City Charter that is being used to remove Mirkarimi from office rests on the power given by “the people of the City and County of San Francisco,” (Preamble to the Charter) and was itself adopted by a majority vote. Setting aside majority votes is a dangerous business for us all; it risks substituting the will of a few insiders for the will of the people.

The political riskiness of the move has been entirely incorrectly cast by the San Francisco Chronicle, the main voice to overturn the expressed will of the people. The Chronicle asserts the political risks as now falling on the supervisors who most vote to sustain the mayor’s action with nine votes. Indeed, the ace vote counter at the “Comical,” former Mayor Willie Brown, who went zero-for-ever in the last four years of his term in votes at the board, confidently predicts that the vote will be 11-zip to sustain the mayor because of the fear of voter retribution.

But facts indicate that “fear” will play the other way. Last November Mirkarimi won in six of the 11 supervisorial districts (D3, D5, D6, D8, D9 and D10) . In two of them (D8 and D10), he won more first-place votes than the current supervisor. In these same six districts he outpolled Ed Lee by some 18,000 votes. By what measure, other than the huffing and puffing of ex-Mayor Willie, C(onsistenly) W(rong) Nevius, and the two stooges, Matier and Ross, does any political risk fall on these supervisors to vote with their constituents?

Chances are nine votes will NOT be there and that Mirkarimi will remain sheriff, where the people put him.We will have gone through a divisive fight addressing none of our deep problems, Mayor Lee will squander the good will of the supervisors and voters for nothing and we will be exactly where we are now.

We have a way to remove Mirkarimi from office that is far better for our democracy. It’s one of the great inventions of the Progressive Era. It’s called recall, and it puts the matter where it should be: before the people. It’s really not about Mirkarimi anymore. Its about us, the meaning of our votes, and the responsibility of supervisors to understand in whose name they govern. All power to the people!

Calvin Welch lives, works and plays in San Francisco.

End the health-care scam

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OPINION Last year, after receiving data from San Francisco, the Wall Street Journal reported on an investigation into the use of health reimbursement accounts by several local restaurants. It showed a group of employers evading the city’s health care law while charging their customers a “Healthy San Francisco” surcharge that is never actually spent on employees’ health care.

Rather than providing health coverage to their workers, as customers are led to believe, the restaurants are allocating funds for HRAs — and taking back the funds before they can be used.

The numbers speak for themselves: Of the $62 million that was set aside for health care accounts in 2010, more than $50 million was kept by employers.

>>WHO’S GAMING THE SYSTEM? CLICK HERE FOR OUR COMPLETE GUIDE TO RESTAURANTS WITH SURCHARGES — AND WHERE THE MONEY GOES

Workers spoke about never being notified about the accounts; being forced to jump through numerous, often onerous hoops to receive reimbursements or never receiving reimbursements; facing severe restrictions on use of the funds; and fearing retaliation for seeking to access the funds. It was clear that as long as employers can take back unspent funds they have a large incentive to restrict workers’ access.

In response, Supervisor Campos drafted an amendment to the Health Care Security Ordinance (known as Healthy San Francisco) that would have closed this loophole, which was being exploited by a small number of employers. The Chamber of Commerce, accompanied by the San Francisco Chronicle, made hysterical claims about impending job loss and business closures, and after the Board of Supervisors approved the legislation on a 6-5 vote, Mayor Ed Lee vetoed it.

Supervisors Malia Cohen and David Chiu then authored “compromise” legislation that actually didn’t address the problem. Their version merely allowed employers to take back workers’ health care dollars after two years instead of one. This cosmetic change did, however, provide enough window dressing to please the Chamber, so the supervisors approved it and Mayor Lee signed it into law.

Now, just a few months later, an article in the Public Press showed exactly why we opposed the Cohen/Chiu amendment in the first place: It doesn’t really close the loophole. Employers can still take money back from the HRAs. This creates a clear incentive to choose HRAs over insurance — the worst option for workers. Furthermore, the loophole leaves responsible businesses that provide health coverage to employees through insurance or HSF competing against employers that exploit it by paying less into HRAs.

We find it unconscionable that there are businesses charging customers a health-care surcharge and then keeping the money for profit. What is more unconscionable is that City Hall passed an amendment that continues to let it happen.

The Department of Labor Standards Enforcement compliance data for 2011 will be available next month — and if that continues to show abuse of the HRA provision, then it’s time for the Board of Supervisors to end the charade and truly close the loophole once and for all. Healthy San Francisco is about providing health care for workers — not creating additional profit for businesses.

Assemblymember Tom Ammiano represents the 13th District. Supervisor David Campos represents District 9.

Editorial: Reject the CPMC deal!

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EDITORIAL For most of the past year, Mayor Ed Lee had been taking a tough line with California Pacific Medical Center, the health-care giant that wants to build a state-of-the-art 555-bed hospital on Cathedral Hill. The mayor had been telling a stunningly recalcitrant CMPC management that the outfit would have to put upwards of $70 million into affordable housing and spent millions more on transit, neighborhood and charity-care programs to mitigate the impacts of the massive project.

But late in March, something happened. Under immense pressure from the Chamber of Commerce and other big business groups, the mayor buckled and agreed to a deal with woefully inadequate mitigation measures. The supervisors should reject the plan and force CPMC to do better.

The biggest problem with a project this size is the mix of jobs and housing. Lee is properly concerned about creating jobs in a city where unemployment in some neighborhoods is stubbornly high. But the proposed deal only guarantees a tiny fraction of the 1,500 permanent new jobs for San Francisco residents.

That means a city that has almost zero vacancy in affordable housing is going to have to absorb a workforce much of which won’t be able to buy or rent anything at current market rates. That means more competition for scarcer housing and higher rents and home costs for everyone.

By any basic planning logic, CPMC should be on the hook for providing enough affordable housing for at least some reasonable percentage of its workforce. Instead, the hospital chain is offering about $33 million, only $3 million of which will be paid up front. That won’t even address half of the housing impact. Besides, the jobs will be there when construction starts, and more when the hospital opens; the limited affordable housing money will come much later. The highest-paid doctors and administrators may be able to afford the pricey new market-rate condos the city is madly approving — but where, exactly, are the nurses, orderlies, clerks, janitors and other health-care workers going to live?

CPMC has agreed to provide charity care at the same level is currently does — which is abysmally low, among the lowest of all nonprofit hospital chains in California. So that’s not an advantage.

And it has promised to keep open St. Luke’s Hospital in the Mission — the only full-service hospital other than SF General in the southeast part of town. But the proposal calls for cutting the number of beds by nearly two-thirds, from 229 to 80. And it allows for the closure of that hospital if CPMC’s system-wide operating margin falls below 1 percent (something that will be hard for the city to challenge, since CPMC handles the books).

It’s cynical how CPMC is using this critical medical facility in an underserved area as a bargaining chip. Already, hospital lobbyists are warning that St. Luke’s will be shut down if they don’t get what they want on Cathedral Hill.

Meanwhile, CPMC has labor trouble and is refusing to guarantee that existing employees at facilities that will be demolished will be able to keep their jobs and seniority at the new hospital.

We realize that CPMC needs to build a new facility to replace aging and seismically unsafe structures elsewhere in town. But the hospital chain also has a responsibility to address the impacts this project will have on San Francisco. And right now, it’s not a good deal.

 

End the healthcare scam

Andrew Lam
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OPINION Last year, after receiving data from San Francisco, the Wall Street Journal reported on an investigation into the use of health reimbursement accounts by several local restaurants. It showed a group of employers evading the city’s health care law while charging their customers a “Healthy San Francisco” surcharge that is never actually spent on employees’ health care.

Rather than providing health coverage to their workers, as customers are led to believe, the restaurants are allocating funds for HRAs — and taking back the funds before they can be used.

The numbers speak for themselves: Of the $62 million that was set aside for health care accounts in 2010, more than $50 million was kept by employers.

Workers spoke about never being notified about the accounts; being forced to jump through numerous, often onerous hoops to receive reimbursements or never receiving reimbursements; facing severe restrictions on use of the funds; and fearing retaliation for seeking to access the funds. It was clear that as long as employers can take back unspent funds they have a large incentive to restrict workers’ access.

In response, Supervisor Campos drafted an amendment to the Health Care Security Ordinance (known as Healthy San Francisco) that would have closed this loophole, which was being exploited by a small number of employers. The Chamber of Commerce, accompanied by the San Francisco Chronicle, made hysterical claims about impending job loss and business closures, and after the Board of Supervisors approved the legislation on a 6-5 vote, Mayor Ed Lee vetoed it.

Supervisors Malia Cohen and David Chiu then authored “compromise” legislation that actually didn’t address the problem. Their version merely allowed employers to take back workers’ health care dollars after two years instead of one. This cosmetic change did, however, provide enough window dressing to please the Chamber, so the supervisors approved it and Mayor Lee signed it into law.

Now, just a few months later, an article in the Public Press showed exactly why we opposed the Cohen/Chiu amendment in the first place: It doesn’t really close the loophole. Employers can still take money back from the HRAs. This creates a clear incentive to choose HRAs over insurance — the worst option for workers. Furthermore, the loophole leaves responsible businesses that provide health coverage to employees through insurance or HSF competing against employers that exploit it by paying less into HRAs.

When the landmark Healthy San Francisco legislation passed five years ago, it never occurred to us that some businesses would be so obvious in their attempts to game the system. We find it unconscionable that there are businesses charging customers a healthcare surcharge and then keeping the money for profit. What is more unconscionable is that City Hall passed an amendment that continues to let it happen.

The Department of Labor Standards Enforcement compliance data for 2011 will be available next month — and if that continues to show abuse of the HRA provision, then it’s time for the Board of Supervisors to end the charade and truly close the loophole once and for all. Healthy San Francisco is about providing healthcare for workers — not creating additional profit for businesses.

Assemblymember Tom Ammiano represents the 13th District. Supervisor David Campos represents District 9.

Sorting through scandal

Andrew Lam
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Sorting through scandal

news@sfbg.com

>>Read the Guardian Op-Ed by Eliana Lopez’s friend Myrna Melgar here.

On March 20, Mayor Ed Lee announced his decision to suspend and seek the removal of Sheriff Ross Mirkarimi, taking the city into complex and uncharted legal and political territory. He did so with little explanation in a statement lasting two minutes. Then he went and hid.

Over the past week, the mayor has refused to expound on the reasoning behind his decision, won’t answer questions from reporters, and has held no public events where he might face the news media.

But he’s set off the political equivalent of a nuclear bomb, forcing the supervisors to take on a no-win situation in an election year and leaving the City Attorney’s Office, the Ethics Commission, and Mirkarimi’s lawyers scrambling to figure out how this will all play out.

At issue is whether Mirkarimi’s guilty plea to a misdemeanor false imprisonment charge — and his actions since the New Year’s Eve conflict with his wife, Eliana Lopez, that led to the three domestic violence charges that he originally faced — warrant his immediate removal from office without pay pending hearings that could take months. Mirkarimi, the mayor alleges, violated official misconduct standards written into the City Charter with little discussion in 1995, broad language that has yet to be interpreted by a court.

Mirkarimi and his new attorney, David Waggoner, responded March 27 by filing a court petition challenging that language — “conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers” — as unconstitutionally vague and arguing Lee abused his mayoral discretion in suspending Mirkarimi and violated his due process rights by taking away his livelihood without a hearing. They are asking the court to order Mirkarimi’s reinstatement, or at least the restoration of his salary, until the long city process determines his fate.

“It makes it more difficult for the sheriff to fight these charges when he’s suspended without pay,” Waggoner told us.

To those who have been calling for Mirkarimi’s removal for the last few months, the case seems simple: Mirkarimi grabbed Lopez’s arm with enough force to leave a bruise, police and prosecutors got a video the neighbor made of the wife tearfully telling the story, and Mirkarimi tried to quell the controversy by calling it a “private matter” — infuriating anti-domestic-violence advocates who have spent decades trying to explain that DV is a crime, not a family issue. The sheriff ended up pleading guilty to a related charge.

That, many say, is plenty of reason to remove him from office: How can a top law-enforcement official do his job when he’s been convicted of a crime for which advocates say there should be zero tolerance? How can a man who runs the jails have any credibility when he’s pled guilty to false imprisonment?

“He has chosen not to resign and now I must act,” Lee said at a press conference he held shortly after the 24-hour deadline he gave Mirkarimi to resign or be removed.

But like everything in this politically fractured and passionate city, it’s a lot more complicated.

WHAT REALLY HAPPENED

Lopez and her attorneys have consistently maintained that Mirkarimi was not abusive, that the video was created solely in case their deteriorating marriage devolved into a child custody battle, and that it was not an accurate description of what happened that day, suggesting the former Venezuelan soap opera star was telling a particular kind of story.

The Guardian and the San Francisco Chronicle (“Mirkarimi’s argument with wife detailed,” March 25) have pieced together some of what happened. Sources say the couple argued in the car on the way to lunch at Delfina Pizzeria about whether Lopez would take their nearly three-year-old son, who was sitting in the backseat, with her to Venezuela.

The couple had been having marital problems and Mirkarimi, worried that she might not return or that their son could be kidnapped for ransom, got angry. As the argument escalated, Mirkarimi decided to take the family home. On the way, Mirkarimi told her that he had spoken to a lawyer and learned that she needed written permission from him to take their son out of the country and that he wouldn’t do so.

That made Lopez angry and she got out of the car and tried to unfasten their son to leave when Mirkarimi grabbed her right arm, leaving a bruise that was clear in the videotape but which wasn’t visible a week later when she wore a sleeveless dress to Mirkarimi’s swearing in ceremony for sheriff.

That’s the couple’s version of events, anyway. There are no witnesses who can verify or dispute it.

Lee never called Lopez or her attorney to hear this story before deciding to remove him from office. But in the official charges he filed against Mirkarimi, Lee alleges “acts of verbal and physical abuse against his wife” and that he “restrained Ms. Lopez and violated her personal liberty,” plus unproven allegations that he was never charged with, including encouraging neighbors to destroy evidence, and of hurting morale in the Sheriff’s Department (based on a newspaper quote from a political opponent).

You don’t have to defend Mirkarimi’s conduct or belittle the serious crime of domestic violence — in fact, you don’t have to believe anything the sheriff or his wife have said — to ask a few basic questions. Is this extraordinary executive power warranted in this case? What harm would come from waiting for a recall election, the usual method of removing elected officials after a scandal? Why did Lee give Mirkarimi 24 hours to resign and did he offer anything as incentive (sources tell us he offered another city job)? Will he release the City Attorney’s Office advice memo, and if not, why?

The Guardian submitted those and many other questions to Mayoral Press Secretary Christine Falvey, who said she would answer them by March 23, but then sent us this message at the end of that day before going on vacation: “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.”

Very few progressives have stood up publicly and taken Mirkarimi’s side. One of them is Debra Walker, a longtime activist and city commissioner.

“This is about McCarthyism at this point, and not domestic violence,” Walker told us. “Instead of helping [Lopez], they have succeeded in breaking this family apart. It’s just bullying. It was always aimed at Ross stepping down and removing him as sheriff.”

THE LEGAL MESS

So what happens next? It is, to say the least, unclear.

The last time a public official was charged with misconduct was in the 1970s, when Joe Mazzola, an official with the Plumbers Union, was removed from the Airport Commission because he refused to order striking plumbers back to work. The state Court of Appeal later overturned that decision, ruling that “official misconduct” had to be narrowly construed to be conduct directly related to the performance of official duties (a case Waggoner relies on in his petition).

But the City Charter has changed since then, and now allows removal for the vague charge of “conduct that falls below the standard of decency and good faith and right action impliedly required by all public officers.” That phrase gives extraordinary power to the mayor — and, given some of the conduct we’ve seen at City Hall over the years, could have been used to remove a long list of city officials.

The Charter states that Mirkarimi, as the accused, will get a hearing before the Ethics Commission, and that he can be represented by counsel. It’s silent on the question of what form that hearing will take, what the rules of evidence will be, what witnesses will be allowed, and what rights the defendant will have.

Four of the five Ethics Commission members are practicing attorneys, and before they can call a hearing, they’ll have to hold a meeting to discuss the rules.

In the case of former Sup. Ed Jew, who was accused of falsifying his address, Ethics was prepared to take only written testimony (Jew resigned before any hearing, partially to deal with more serious federal charges of shaking down constituents for bribes). But that’s not a hard and fast rule — this time, the panel could decide to allow both sides to present witnesses.

If the commission decides to allow evidence, someone will have to rule on what evidence can be presented and what can’t. Will that be the commission chair, Benjamin Hur, or the commission as a whole?

The answer is: Nobody knows for sure. Hur told us he couldn’t comment on anything related to the case; the City Attorney’s Office won’t comment, either, since the office is representing both the mayor (on the prosecution side) and the supervisors and the Ethics Commission, and the board and the commission haven’t made any decisions on rules yet.

Then it gets even trickier. The Board of Supervisors has to vote on whether to remove the sheriff, and it takes nine votes to do that. So if three supervisors vote no, Mirkarimi is automatically back in office.

There are no rules in the Charter for how the board will proceed; in theory, the supervisors could simply accept the recommendation of the Ethics Commission and vote without any further hearings. They could rely on the record of the Ethics proceedings — or they could hold the equivalent of a second trial, with their own witnesses and procedures.

To add another layer of confusion, Mirkarimi, as sheriff, is classified under state law as a peace officer — and the Peace Officers’ Bill of Rights sets entirely different standards for administrative and disciplinary hearings. Among other things, Mirkarimi could assert the right to have the Ethics Commission hearing closed to the public and the records sealed.

State law also mandates that a peace officer facing suspension without pay has the right to a hearing and adjudication within 90 days. That’s not in the City Charter; under the Charter, the city can wait as long as it wants to decide the issue.

Nobody knows for sure whether the Peace Officers Bill of Rights trumps the City Charter.

It’s clear that Mirkarimi, like anyone accused of a crime or facing an administrative hearing, has the right to due process — but not necessarily the same rights as he would have in a court proceeding. It’s also clear that the supervisors will be sitting in a quasi-judicial role — and thus can’t take into account anything that isn’t part of the official record of the case.

They probably can’t, for example, hold a public hearing on the issue — and judges in a case are theoretically supposed to ignore the hundreds of calls and emails that are now flooding in to the board offices on all sides.

The political implications are equally complex. Lee would have been in a dangerous situation if he declined to file charges — if Mirkarimi ever did anything else this disturbing, some would say it was Lee’s fault for leaving him in office.

It’s a safe bet that none of the supervisors are happy about having to vote on Mirkarimi’s job, but it’s particularly tough for the progressives. Anyone on the left who votes against removal will be subject to a barrage of attack ads — and since the balance of power on the board will be decided in November, when David Chiu, John Avalos, Eric Mar, David Campos, and Christina Olague, all more or less part of the progressive bloc, will all be up for re-election, the pressure on them will be immense.

That, in and of itself, ought to be reason for the sheriff to step down, some progressives say: Is preserving Mirkarimi in the Sheriff’s Office worth potentially destroying the progressive majority on the board? It’s a good question — and one that Lee’s advisors were well aware of, too.

Mirkarimi files court petition challenging his suspension

Sasha Cuttler
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Mirkarimi files court petition challenging his suspension

Suspended Sheriff Ross Mirkarimi and his new attorney, David Waggoner, today turned to the courts for help, alleging in a petition that Mayor Ed Lee abused his discretion in suspending Mirkarimi without pay, deprived him of due process rights, and relied on untested language in the City Charter that they say is unconstitutionally vague.

They are asking the court to reinstatement Mirkarimi pending official misconduct hearings that would take months, or to at least allow his family to continue to receive his $199,000 salary. “It makes it more difficult for the sheriff to fight these charges when he’s suspended without pay or due process,” Waggoner told us, adding that he expects a hearing to be scheduled in two to three weeks.

Mayor Lee brought official misconduct charges against Mirkarimi a week ago and since then has refused to answer questions about the issues his action raises (which we explore in this week’s Guardian). Among those issues is whether Mirkarimi’s plea to a misdemeanor count of false imprisonment, involving a conflict with his wife, relates to his official duties and rises to the level of official misconduct.

The city’s last official misconduct proceedings, brought in the 1970s against Airport Commissioner Joe Mazzola, was overturned by the state Court of Appeal, which found that Mazzola’s actions (refusing to order striking plumbers in his union back to work) weren’t related to his official duties. Waggoner relies on that ruling in arguing Lee abused his discretion.

“The official misconduct must occur while the official is in office and be directly related to that office,” the brief contends, noting that the alleged domestic violence incident occurred before Mirkarimi was sworn in a sheriff.

In suspending Mirkarimi, Lee relies on new official misconduct language since the Mazzola incident, during the last charter overhaul in 1995, when catch-all language was added banning, “conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers.”

Waggoner says that is unconstitutionally vague and he is seeking to have the court invalidate it. “Ultimately, it’s a legal issue at this point,” Waggoner told us. “Is what the mayor accused Ross Mirkarimi of official misconduct or not?”

Impertinent question: Will Mayor Lee take on the Bank of America for unethical behavior?

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Mayor Ed Lee moved with lightning speed to suspend Sheriff Ross Mirkarimi without pay on misconduct charges and unethical behavior  in a spousal abuse case and continue the costly, distracting, divisive  media and City Hall circus.

Meanwhile, the Bank of America, an institution called “Too Crooked to Fail” by Rolling Stone,  is responsible for 10 per cent of all foreclosures in San Francisco and the city keeps its lucrative multi-million dollar short term investment portfolio in the B of A.  Matt Taibbi, the Rolling Stone investigative reporter on the story, said in a lengthy interview  on the Democracy Now radio program Thursday morning that bailouts and fraud are the secrets to the B of A success. The B of A, he said,  has defrauded “everyone from investors and insurers to homeowners and the unemployed.”  He said “most people think of the mortgage crisis as some airy abstraction–you know, bankers ripping off bankers. That’s not what it is.  It’s bankers stealing from old ladies and retirees.”

Impertinent question: So will Lee apply his new found standard of ethics to the Bank of America? See the Democracy Now clip on the Taibbi interview for specifics on B of A behavior:

http://www.democracynow.org/2012/3/22/too_crooked_to_fail_matt_taibbi

Lee’s charges against Mirkarimi leave questions unaddressed

Sasha Cuttler
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159

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 and high ethical standards

Zelda Bronstein
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Mayor Lee and high ethical standards

If Mayor Ed Lee thinks that a person who pled guilty to false imprisonment can’t do the job of San Francisco sheriff, he’s welcome to say that. He would hardly be alone in that position, and it’s one that a fair number of progressives support.

But I didn’t know whether to laugh or puke when I heard his statement on the suspension:

Sheriff Mirkarimi’s actions and confession of guilt clearly fall below these standards of decency and good faith, rightly required of all public officials.

“Standards of decency and good faith?” This from a mayor who lied repeatedly about his intentions to seek office. A mayor who promised that there were absolutely no conditions under which he would seek a full term as mayor. A mayor whose campaign has already led to money-laundering indictments. A mayor whose supporters appeared on camera to be illegally collecting ballots. A guy who was caught up in a really sleazy bid deal under Mayor Willie Brown. A politician whose closest allies are powerful people with very checkered ethics records.

I’m surprised I didn’t see Mohammed Nuru up there, too, talking about the great high ethical standards in the Mayor’s Office.

Look: You can argue that Mirkarimi doesn’t belong in law-enforcement, and you can argue that he should resign, and you can argue his fate all day, as people have been doing, mostly in good faith, on this here website. I never have defended Mirkarimi’s conduct, and I’m not going to start now.

But please: Ed Lee has no business talking about high standards of decency and good faith. By those rules, we could kick out a sizable part of his administration.

Mayor Lee ousts Sheriff Mirkarimi

Sasha Cuttler
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Mayor Lee ousts Sheriff Mirkarimi

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.

Editorial: Mayor Lee: Ease off Mirkarimi and help stop the foreclosure crisis

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And so the downtown gang (Willie Brown/Rose Pak, PG&E, the Chamber, the big developers et al) used Ed Lee to outmaneuver the progressives and roll Lee into the job of “interim mayor” on condition Lee not run for mayor.  Then Lee kept lying for months about his intentions and saying over and over that he would not run for mayor–until the downtown gang convinced him to run as a way to further damage the progressives. And now, according to news reports, Mayor Lee is poised to file misconduct charges against Mirkarimi for his gulty plea of false imprisonment in the Mirkarimi domestic violence case.

This could lead to an explosive and polarizing scenario where the Board of Supervvisors, in an election year, would be asked to remove Mirkarimi, a former fellow supervisor and political ally, as sheriff or side with him on what has turned out to become a toxic political issue. This would affect at minimum Mar, Avalos, Campos, and Olague in the supervisors’ races and Mar, Avalos, and Campos in the upcoming Democratic County Central Committee race. It would also affect any candidate in any race that said a nice word about Mirkarimi.  If anybody thinks the mayor and the downtown gang would be unhappy with this prospect, think again. I recommend that Lee hold off on Mirkarimi, and work to uphold his position as a “unifier,” and not become a polarizer and promoter of media and City Hall circuses. Instead of taking on Mirkarimi and the progressives, he should concentrate on such important and timely issues as helping stop the foreclosure process on the thousands of homes facing foreclosure in San Francisco. More: he should go after the big foreclosure banks, starting with the Bank of America and its multi-million dollar short term cash account with the city, and  Wells Fargo, with its national headquarters here in town.b3

More than 1,000 homes in San Francisco are either in foreclosure or at the start of the process. Some 16,000 homeowners are underwater, and as many as 12,000 may face foreclosure in the next 12 months. A report by the Alliance of Californians for Community Empowerment shows that the city could lose $115 million from the reduced property taxes and the costs of carrying out evictions.

That’s a crisis — and while the mayor has no direct control over home foreclosures, he ought to be speaking out and joining the protesters who are fighting this cascade of often-fraudulent bank actions.

The problems are legion: An audit released in February by Assessor Phil Ting shows that more than 80 percent of the foreclosure notices filed in San Francisco contain at least one legal irregularity, and many contain multiple. Banks back-date documents, use faulty information, and in some cases clearly and directly break the law when they move to seize property — often because of bad-faith loans that were more the fault of the banks than the homeowners.

A group from Occupy Bernal, the well-organized, sophisticated operation that’s been intervening in foreclosures and evictions in the Southeast neighborhoods, visited us recently, and the stories we heard were alarming. Some told of bankers who promised to make loan modifications — then went ahead with foreclosure anyway. Some people spend weeks just trying to figure out who actually owns the mortgage — and while the financial institutions are ducking calls and hiding from responsibility, they’re moving forward to toss people out of their homes.

ACCE and Occupy Bernal have had some successes — they slowed down foreclosure actions, forced banks to come to the table and in some cases saved homes. But the activists are up against big corporations and big numbers — too many homes on the block, too many financial institutions, and not enough people and money.

The Ting report showed enough violations of law that we’ve already urged the city attorney and the district attorney to start taking action.

But we’ve heard little beyond silence from the office of Mayor Ed Lee.

Lee’s the city’s chief executive, the person who has to handle the financial fallout of the foreclosure crisis as well as the human impacts — families evicted from their homes have a high chance of winding up on the streets, putting additional pressure on already-stressed social services.

Besides, this is a tragedy — and a lot of the problem is simply unaccountable, unreachable financial institutions. If Occupy Bernal and ACCE, through volunteer organizing and community pressure, can prevent a fair number of evictions, think of what the mayor of San Francisco could do — just by speaking out.

Lee ought to show up at some of the Occupy Bernal actions, but that may be too much to ask. But it’s not too much to suggest that he publicly support the foreclosure fighters and call on the banks to work with local homeowners.

The city keeps its multibillion-dollar short-term cash accounts in institutions like Bank of America, which is responsible for more than 10 percent of all foreclosures in the city. Wells Fargo, with its headquarters right here in town, is responsible for 22 percent of the local foreclosures. Lee ought to let the banks know the city won’t keep doing business with bad actors.

With a little visibility, the mayor could help save hundreds, maybe thousands of families from facing homelessness. This crisis calls for leadership; where’s the mayor?

Mayor Lee discusses removing Mirkarimi from office

Sasha Cuttler
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Mayor Ed Lee today seemed to take a step back from his quote in today’s San Francisco Chronicle that his “gut feeling” was that Sheriff Ross Mirkarimi’s guilty plea to a misdemeanor false imprisonment charge represents a conflict with Mirkarimi’s official duties that could warrant his removal from office.

Speaking to reporters after an appearance before the Board of Supervisors, Lee said he hasn’t made up his mind whether to charge Mirkarimi with official misconduct – which would ultimately require at least nine of 11 supervisors to vote for removal over what was alleged to be an incident of domestic violence – but that Lee said he would probably make that decision next week.

“My gut reaction wasn’t that,” Lee said when asked about his newspaper quote, explaining that he was simply surprised when the new charge replaced the three that Mirkarimi had initially been charged with: domestic violence, dissuading a witness, and child endangerment, all misdemeanors. 

“In the surprise of the legal settlement of the case, I’m required to take a look at this charge that wasn’t talked about before and determine whether those charges and the factual allegations behind those charges are measured up to the standard I have to deal with, which is official misconduct. And I have to allow myself enough time to do that with our City Attorney’s advice to make sure I’m on good legal footing. I was just surprised because it wasn’t one of the original charges,” Lee said, noting he had been doing research on the previous charges.

“Because it’s a new charge and one that was accepted by the courts as well, I have to make a thorough study of that, which is something I wasn’t prepared to do,” he said.

When asked whether the term “false imprisonment” (a broad legal charge that can mean different things depending on the context) affects his approach, Lee responded, “The word false imprisonment is obviously connected to a sheriff who does make a determination about imprisonment in general. But we’re going through the elements of what false imprisonment are and what the factual basis is and then, again, reapplying that to the standards of official misconduct.”

As for the timeline of his decision, Lee said, “I think it’s appropriate to wait until after the sentencing,” which is set for Monday, “so probably sometime next week.” Later, he said, “I am cognizant of the public distraction this case has made to the office, so I’m doing the best I can to comply with at least my own time frame.”

We asked Lee why he thought the charges – which resulted from an incident on New Year’s Eve in which Mirkarimi’s wife allegedly told a neighbor that he grabbed her and left a bruise on her arm – might rise to the level of official misconduct, particularly considering he hadn’t been sworn into office yet.

Lee replied, “That’ll be part of the assessment because I don’t think there’s an automatic thing here. He was elected and this was post election, so it doesn’t matter when he was sworn in and I think he was expected to be sworn in, so we have to take into consideration all of those elements.”

Supervisors ban illegal SFPD spying, but veto threat looms

Sasha Cuttler
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The Board of Supervisors today gave initial approval to legislation that would prevent the San Francisco Police Department from working with the FBI to spy on law-abiding citizens, but the 6-5 vote wouldn’t be enough to overcome a possible veto by Mayor Ed Lee, which would take eight votes.

SFPD officials have said the measure is unnecessary because Police Chief Greg Suhr and the Police Commission last year approved a Department General Order requiring officers to obey state and local privacy laws, which they say supercedes the MOU that the SFPD secretly signed with the FBI in 2007 placing local officers under federal control. That secret document was unearthed last year by the ACLU, causing a local furor.

But supervisors who support the measure and the broad coalition that is supporting it, ranging from the Asian Law Caucus to groups representing Muslims who have been targeted with federal surveillance since 9/11, say it is important to enshrine these protections in city law and they don’t understand the SFPD resistance to doing so.

“If this is that important to us, if we believe in these values, then it deserves to be codified in our laws,” said Sup. Jane Kim, the measure’s main sponsor. “I was shocked to discover our city entered into a secret agreement with the FBI,” said President David Chiu, adding that while he trusts Suhr to oppose illegal spying, this legislation was about ensuring successive chiefs and members of the Police Commission uphold that standard.

Sups. Scott Wiener, Malia Cohen, Sean Elsbernd, Mark Farrell, and Carmen Chu voted against the measure, but Wiener was the only one who tried to explain his vote, much to the disappointment of the large coalition that showed up to support the legislation.

“This has been a tough issue for me and I’ve struggled with it,” Wiener said, sharing Chiu’s outrage over the secret memo and his position on the government spying on citizens who aren’t suspected of a crime. “We have our own local policies that SFPD officers are required to comply with,” Wiener said. “The question for me is whether this needs to be legislated.”

The legislation is set to receive final approval at next week’s board meeting, after which Mayor Lee will have 10 days to sign it or issue the second veto of his run as mayor (the first, also controversial, was over legislation to close a loophole in the Health Care Security Ordinance that allows businesses to at the end of the year raid employee health savings accounts they set up to comply with city law requiring employee health coverage).

Before the vote, as he was leaving his monthly Question Time session with the board, I asked Lee about his position on the SFPD spying measure and he said, “I’ll be getting an update. The chief who I appointed has been working directly with the supervisor on this and he’ll be reporting to me all his efforts soon so I can make a determination. I’d like to have input for our Police Commission as well before announcing what we’re going to do about it.”

After the vote, I asked Kim about the threat of a veto and she said, “It’s definitely a concern and we as a community need to think about what our next steps are.” Activists said they plan to lobby supervisors who opposed the measure and the Mayor’s Office. “Talk to your communities, let them know the supervisors who supported it and the supervisors who didn’t support it,” Fairuz Abdullah, former president of the Bay Area Association of Muslim Lawyers, told the group of about two dozen. “This is a great showing, but it needs to continue.”

Domestic violence is not a private matter

Andrew Lam
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EDITORIAL The legal case against Sheriff Ross Mirkarmi has been essentially settled, with the sheriff pleading guilty to false imprisonment and avoiding a trial on domestic violence charges, but the political case is just beginning.

Already, there are calls for Mirkarimi to step down. And Mayor Ed Lee announced March 12 that he’s Mirkarimi’s plea to “a very serious charge that had introduce a new set of legal issues” merits a thorough review.

That could lead to an explosive scenario where the Board of Supervisors, in an election year, would have to vote on whether to remove a sheriff who many of the supervisors have worked with and supported over allegations that are in effect political poison. Anyone who wasn’t ready to throw the sheriff out of office could be accused of coddling a wife-beater.

Mirkarimi’s friends and allies say the sheriff didn’t want to plead guilty to anything. But the questionnaires that potential jurors had filled out showed that virtually everyone who might sit in judgment had read the sensational media coverage of the case, and Judge Garrett Wong had refused to move the trial elsewhere. The judge also rejected every significant motion Mirkarimi’s attorney, Lidia Stiglich, made, and allowed into evidence material that the sheriff’s team didn’t think should be admissible. So the situation looked bleak, and Mirkarimi took a deal.

Mirkarimi maintains his innocence, and says he has no intention of stepping down. He agreed to plead guilty to a crime that had very little to do with what happened New Year’s Eve, when the District Attorney’s Office said he got into a physical altercation with his wife that left her with a bruise on her arm. False imprisonment was never one of the original charges; as is often the case in criminal cases, both sides accepted a less-serious charge in the name of getting the deal done.

Why Mayor Lee sees that as “a new set of legal issues” is baffling; the issues are exactly the same as they were before the plea bargain. None of this is to say that the original charges, backed up by well-publicized (although never fully examined in court) evidence, aren’t serious. Domestic violence, as we’ve said repeatedly, is not a private matter, is not a minor crime, and has far too often been ignored by the courts, police, and prosecutors, sometimes with deadly consequences.

But the way this could play out will open Lee to charges of political opportunism. The mayor would need to charge Mirkarimi with “official misconduct,” which is defined in the City Charter:

“Official misconduct means any wrongful behavior by a public officer in relation to the duties of his or her office, willful in its character, including any failure, refusal or neglect of an officer to perform any duty enjoined on him or her by law, or conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers and including any violation of a specific conflict of interest or governmental ethics law.”

Other than the “standard of decency” statute, which is pretty vague, there’s not much in there for Lee to go on. Unless you say that because Mirkarimi pleaded guilty to a crime with “imprisonment” in the name he’s somehow a threat to the inmates at the county jail, which is a huge stretch, it’s hard to call this “official misconduct.” (There is, on the other hand, the argument that Mirkarimi will be on probation, and thus part of the criminal justice system he oversees, and that it’s an inherent conflict of interest. That, however, would mean any sheriff who was on probation for anything would be ineligible to serve, which again is a stretch.)

If the mayor files official misconduct charges, and the Ethics Commission, by a supermajority, agrees, then the Board of Supervisors would serve in effect as a trial body, much as the U.S. Senate does in an impeachment case. Nine of the 11 supervisors would have to vote to permanently remove the sheriff from office.

If Lee takes that path, he’ll be setting in motion a political process that was designed in the Charter for highly unusual situations and has only been used once in the past 40 years. (And in that case, involving Airport Commission member Joe Mazzola, a court later ruled that the charges, involving his role in plumbers’ strike, didn’t rise to the standard of official misconduct.) You have to ask: Is this case, and this misdemeanor charge, worthy of the exercise of what is, by any standard, an extraordinary power vested in the city’s chief executive? Is it worth the political circus that would result from a trial by the supervisors (some of whom might well be asked to recuse themselves because of their prior relationships with Mirkarimi, making it almost impossible to reach the magic number of nine anyway)?

If the voters of San Francisco think the sheriff needs to go, there’s the right of recall — and it will be available the first week in July, when Mirkarimi will have served six months. If there’s not enough organized opposition to make that happen, he’ll be facing the electorate again in three years (and trust us, he will be opposed and every details of these charges will be part of the campaign). He’s going to pay for this far beyond his court-ordered probation and fine.

Whatever the plea deal, Mirkarimi was clearly involved in a bad conflict with his wife that turned physical. Unless the evidence we’ve seen so far is completely misleading, it’s clear that he left her with a bruise — and that he was at the very least nasty and more likely emotionally abusive to her. Now that the legal case is over, he needs to come clean and tell the public exactly what happened that day, at which point we can all decide if we believe him, if he’s shown that he’s changed, and if the public is willing to give him a chance at redemption.

But Lee should think very seriously before he escalates this by filing misconduct charges. Since the ones who have the most to lose from that are the progressives on the board who are often Lee’s foes, it will have the stench of political maneuvering — and at this point, nobody needs that. The mayor says he’s a unifier; this would be the most divisive thing he could do.

SF allows bikes indoors, but its cycling goal is elusive

Sasha Cuttler
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SF allows bikes indoors, but its cycling goal is elusive

When the Board of Supervisors this week voted 9-2 to require commercial building owners to allow employees to bring their bicycles indoors while they work, ordinance sponsor Sup. John Avalos hailed the legislation as an important step toward meeting the city goal of having 20 percent of all vehicle trips in the city be by bike by the year 2020.

“We are removing a barrier to people getting around the city by bicycle,” Avalos said at the March 6 hearing, noting that the measure addresses cyclists’ concern about bike theft and helps keep sidewalks uncluttered and racks and poles free for other cyclists to use.

While it’s true this may help make cycling a bit more attractive, San Francisco would have to take far bolder actions to get anywhere near meeting its 20 percent by 2020 goal, a target it set in 2010 with legislation sponsored by Board President David Chiu and one regularly touted in speeches by Mayor Ed Lee.

Just last month, the San Francisco Municipal Transportation Agency released its latest bike count survey, which showed that about 3.5 percent of vehicle trips in the city are taken by bike, a 71 percent increase in the last five years, gains the San Francisco Bicycle Coalition lauded as “impressive.” Yet to reach the city’s goal would require a 571 percent increase in the next seven years – one that would seem unattainable at this pace.

“It’s a very ambitious but realistic goal,” SFBC director Leah Shahum told us, although she acknowledged it would require a drastic change in the city’s approach. “I’ve been impressed by how much Mayor Lee has touted the 20 percent by 2020 goal, but our city agencies need to step up their sense of urgency and commitment to meet that goal.”

The SFMTA is now finalizing a report on how to hit that 2020 target, which is scheduled for release next month. But agency spokesperson Paul Rose acknowledged the difficulty in meeting that goal: “It would take funding resources which at this point we don’t have.” He can’t yet say would it would take to meet the goal, which the report will outline, but he said, “We’re exploring what can be achieved with our available funding.”

Shahum said all studies by SFBC and other groups show concerns about safety is the biggest barrier to substantially increasing cycling in the city, and that most people need bike lanes – particularly paths physically separated from cars, known as cycle tracks – to feel safe. She praised the SFMTA for installing 20 miles of new bike lanes in the last two years, its fastest pace ever, “but that pace needs to double or triple to meet that goal.”

Instead, Mayor Lee has backed off a pledge he made last year to fast-track a short segment of bike lanes on dangerous sections of Oak and Fell streets that would connect two popular east-west bikeways: the Panhandle and the Wiggle. That project was delayed by a year for more meetings and work after motorists objected to the loss of street parking spots.

“We’re talking about three blocks. It’s relatively small in scope but huge in impacts,” Shahum said of the project. “If the pace of change on these three blocks is replicated through the city, it’ll take hundreds of years to meet the goal.”

In his run for mayor last year, Chiu regularly touted the 20 percent goal he set in 2010 after returning from a fact-finding trip to the Netherlands – where about 38 percent of vehicle trips are by bike – that he took with SFMTA Director Ed Reiskin, SFBC members, and officials from other cities. Chiu says that San Francisco might be further along than the SFMTA figures show, citing an SFBC poll showing that 5 percent of San Franciscans say they ride a bike daily and another 12 percent ride more than once a week.

“Whatever the current percentage is, we have a long way to go. We have to be bolder about specific projects and strategies,” Chiu told us. He said there is a growing recognition that promoting cycling is an important way to address traffic congestion and greenhouse gas reduction and that “segregated bikes lanes are the most efficient way to move the most people through areas of urban density.”

Chiu also said that San Francisco could be poised for rapid progress on the creation of new bikes lanes, citing early opposition to replacing parking spaces with parklets and the car-free Sunday Streets (which kicks off its new season this Sunday along the Embarcadero) events, with the business community and many neighborhood groups fearing that restrictions on motorists would hurt businesses.

“The experience has turned out to be exactly the opposite,” Chiu said, noting the explosion in demand for parklets and new Sunday Streets events in the last couple years, saying that a widening embrace of more cycle tracks and other biking infrastructure could be next.

Mayoral Press Secretary Christine Falvey told us, “The mayor is very much committed to the aggressive goals set to get to 20 percent by 2020 and the city is moving in the right direction. He has also always supported the Oak Fell project and we’re seeing progress. It will be complete in 2013 and he has been talking to the SFMTA about the project to keep up to date. San Francisco is on its way to becoming the most bicycle friendly city in the U.S. and in this era of limited public funding, the mayor is working with the SFMTA to explore what ways we can increase trips taken by bicycle with available funding and increased public awareness.”

She cited the Avalos legislation and the current installation of cycle tracks on JFK Drive in Golden Gate Park as examples of the city’s commitment to “move us toward the goal of 20 percent,” but many in the cycling community consider these efforts to be low-hanging fruit – easy, cheap, and non-controversial improvements – that won’t get the city anywhere near its stated goal.

Bike activist Marc Salomon is critical of the incremental approaches taken by SFBC and the city, saying that to make significant progress the city needs to address enforcement and the culture on the roadways, protecting cyclists from aggressive or impatient motorists and recognizing that many traffic laws don’t make sense for cyclists.

“We need to change the culture of the cops to make sure every street is a safe street,” he said. Shahum said that’s an issue SFBC is trying to address: “We are talking to them about how police could better enforce dangerous behaviors.”

Yet any efforts to promote cycling will likely be met with a backlash by motorists who resent losing space to cyclists and the fact that many cyclists routinely run stop signs and lights. Sups. Sean Elsbernd and Carmen Chu voted against the Avalos legislation, with Chu objecting to city staff evaluating businesses that seek waivers based on limited space or other factors, calling it a waste of precious resources.

But Avalos noted that his ordinance – which will be up for final approval on its second reading this Tuesday – has no enforcement mechanisms and “overall, this is a cost effective way to promote bicycling in the city. The costs are minimal.”

He also thanked the conservative Building Owners and Managers Association for supporting the legislation. Shahum said BOMA strongly opposed similar legislation almost 10 years ago and its embrace of it now shows how attitudes toward cyclists have changed. “There are so many more people biking now and the business community recognizes the benefits of having more of their employees biking,” she said.

Even politically moderate supervisors have been supportive of promoting cycling, with Sup. Scott Wiener saying at this week’s hearing, “It’s very important to make it as easy as possible to bike, and bike theft is a big issue in this city as well.”

D5 candidates and constituents scrutinize Olague

Sasha Cuttler
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38
D5 candidates and constituents scrutinize Olague

San Francisco’s political lines are in the process of being redrawn. That’s true literally, with the current reconstitution of legislative districts based on the latest census, but it’s also true figuratively: old alliances based on identity and ideology are being replaced with uncertain new political dynamics. And nowhere is that more true than in District 5.

In a recent Guardian, we explored the implications of Sup. Christina Olague’s dual (and potentially dueling) loyalties between Mayor Ed Lee, who appointed her to the job, and the progressive political community with which Olague has long identified. Those seemed to play out yesterday when Olague bucked progressives to be the sixth co-sponsor of Sup. Mark Farrell’s proposed charter amendment to repeal ranked-choice voting for citywide offices.

Already, many of her progressive constituents – even those who have strongly supported her – have been privately grumbling that Olague hasn’t been accessible and expressing doubts about her ability to lead one of the city’s most progressive districts. Olague, who initially returned our calls immediately but said she’d have to get back to us about supporting Farrell’s legislation (I’ll add an update if/when she calls back), adamantly denied that she’s had a slow start.

“We’ve been working with constituents constantly,” she said, rattling off a list of nightly meetings. “I’m in the community all the time, getting coffee with folks…We’re working on multiple issues here.”

Michael O’Connor – who owns The Independent and other businesses and who ran in D5 in 2004 and may run again this year – supports Olague but questions the conventional wisdom that her progressive roots and mayoral support make her a lock for reelection this year.

“Olague is an awesome person and she would be a great supervisor in District 9,” O’Connor said, citing her strong ties to the Mission District and work with the Mission Anti-Displacement Coalition. “But she’s very beatable in D5 because she doesn’t have the deep connections to the community.”

That’s a belief that is shared by others, including London Breed – the executive director of the African American Art & Cultural Center for the last 10 years – who jumped into the race last week and threatened to cut into Olague’s support among Mayor Lee’s supporters.

With Attorney General Kamala Harris and other Lee supporters by her side, Breed cast herself as a more authentic and grassroots representative for the district where she was raised. Or as Harris said, “London understands the challenges and strengths of the district. She is, bar none, the best voice for District 5.”

Left unsaid was the split that her candidacy created among supporters of Lee, whose ascension to Room 200 was engineered largely by former mayor Willie Brown and Chinatown power broker Rose Pak. Brown (along with some of the city’s most influential African American ministers) strongly backed Breed for the D5 appointment, while Pak wanted her ally Malcolm Yeung, although she reportedly got behind Olague in the end.

Breed told us that she was supportive of Olague and that “I’ve been adamant about people giving her a chance and working with her.” But she said that it’s already become “clear that she just doesn’t have what it takes and was probably not going to get there,” based on “the feedback and phone calls I got with the experience people had in meeting her.”

“She’s familiar with planning, but not necessarily with the neighborhood and all its community groups,” Breed said. As for crossing Mayor Lee with her decision to run, Breed told us, “This was a hard decision for me to make because I work with many of these people and have good relationship with him.”

Progressive D5 candidates, such as City College Board President John Rizzo, are waiting to take advantage of votes on which Olague breaks with the progressives to carry water for the mayor. As he told us, “The mayor doesn’t get to make this decision, it’s the voters of this district that will decide.”

Like Breed, Rizzo also emphasized his long ties to the district. “I respect Christina and like Christina, but my connections are very deep,” he said, citing his 26 years of living and working as an environmental activist in the district. “I have a record of going out and taking the initiative and making things happen.”

Thea Selby, president of the Lower Haight Merchants and Neighbors Association, has also been running an active campaign for the D5 job, including highlighting Olague’s split loyalties. “She literally switched camps to help chair the Run Ed Run committee,” she told us. Julian Davis, who ran for D5 supervisor in 2004 and has been rumored to be mulling another run, said that it’s disconcerting just how many elected officials in San Francisco started off with the advantage of being appointed to the office: “It’s not participatory democracy the way we envision it.”

Selby and others will be closely watching how Olague votes this year, and trying to differentiate when those votes are significant (such as being the swing vote to place the challenge to RCV on the ballot) or not (including Olague’s early vote to override Lee’s veto, which fell two votes short of the eight needed). “We need to look and see how she votes on things – and when it matters and when it doesn’t,” Selby said.

Yet already, even before the really big and controversial votes like the upcoming 8 Washington and CPMC projects, Olague is feeling the polar tugs on issues such as bicycling. Many bike advocates are mad that Lee has delayed promised bike lanes on Oak Street and with a rash of tickets that cyclists on the Wiggle have received.

“I’ve long been an advocate of biking, but I know there are issues related to parking in the neighborhood,” Olague told us, straddling the issue. “Parking for some reason is a very controversial issue in the city.”

And where does she come down on the stepped up enforcement of bikes rolling stop signs on the Wiggle? “I want to sit down with the Bike Coalition and see what they think,” Olague said.

Meanwhile, Breed – who is widely considered a political moderate, which could cause her problems winning in D5 – is also trying to position herself as more independent than Olague. “I’m about being progressive,” she told us, citing her recent hiring of a case worker at the AAACC to help young African Americans work through barriers to success. “To me, that’s what being progressive is.”

Breed readily acknowledged her early political support from Brown, who appointed her to the Redevelopment Commission when he was mayor, but said that she would still take a tough stand against Lennar and other developers to ensure the needs of current San Franciscans are being met by new projects.

“I’ve told people, this does not mean you have my support,” Breed said of her political contributors and her support of Lennar’s massive redevelopment of the southeast part of the city. “As my grandmother used to say, all money ain’t good money.”

On Breed’s entrance into the race, Olague told us, “It was expected, so I’m not surprised.” Olague said that she’s begun to set up her election campaign, but that most of her focus has been on getting up to speed at City Hall and in D5: “I’m just trying to focus on the work of the district.”

The case against 8 Washington

Andrew Lam
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35
The case against 8 Washington

tredmond@sfbg.com

In city planning terms, it’s a fairly modest project: 134 condos, no buildings more than 12 stories tall, on a 27,000-square-foot site. It’s projected to meet the highest environmental building standards and offers new open space and pedestrian walkways. It’s near Muni, BART, and ferry lines. And the city will collect millions of dollars in new taxes from it.

But the 8 Washington project, which will come before the Planning Commission March 8, has become a flashpoint in city politics, one of the defining battles of Mayor Ed Lee’s administration — and a symbol of how the city’s housing policy has failed to keep pace with the needs of the local workforce.

Put simply, it will create the most expensive condos in city history, housing for the richest of the 1 percent on the edge of the waterfront — and will further push San Francisco toward becoming a city that caters almost entirely to the very wealthy.

So in a city where the growing divide between the 1 percent and the rest of us has become a central issue and where the lack of affordable housing is one of the top civic concerns, 8 Washington is an important test. By any rational standard, this sort of development is the last thing San Francisco needs.

But some of the best-connected lobbyists in the city are pushing it. One of the mayor’s closest allies, Chinatown powerbroker Rose Pak, is a leading advocate — and the final outcome will say a lot about city politics in the Lee administration.

There are all sorts of half-truths and misleading statements by supporters of 8 Washington. Here are the five main reasons the project shouldn’t be approved.

1. It fills no housing need. San Francisco has no shortage of housing for the very rich; the dramatic need, outlined in both regional planning documents and the city’s own General Plan, is for low- and moderate-income housing for the people who actually work in this city (see “Dollars or sense?” 9/28/10). While San Francisco is getting richer by the day, the core workforce — public employees, workers in the hotel and restaurant industry, service workers, construction and trade workers, and a majority of the people in the lower levels of the finance and tech sector — are being priced out of the city. That means more people working here and living far out of town, often commuting by car, in what everyone agrees is an unsustainable situation. Meanwhile, more and more high-paid workers from Silicon Valley are living in San Francisco — again, commuting to distant jobs, either by car or by corporate bus.

The city’s General Plan states that some 60 percent of all new housing built in the city should be below market rate. San Francisco desperately needs housing for its workforce. This type of project simply puts the city deeper in the hole and further from its housing goals.

2. It’s a reward for bad actors. The main developer of this project is Simon Snellgrove, but one of his partners is, by necessity, Golden Gateway, which owns a significant part of the land — and which has been flouting at least the spirit if not the letter of city and state law and costing San Francisco tens of millions of dollars.

As project opponent Brad Paul has noted in written testimony, when Timothy Foo, the current owner, bought the complex from Perini Corp. about 20 years ago, he used a loophole in state law that allowed him to avoid a formal transfer of ownership. That means the property wasn’t re-assessed, costing the city about $1.5 million a year. According to the Assessor’s Office, the deal wasn’t illegal (and these tricks to avoid reassessment are relatively common) but still: He’s costing the city millions by using a loophole not available to most people.

Golden Gateway, which was built in a redevelopment area as middle-class housing, is now renting out apartments as short-term tourist or corporate rentals. There are dozens of examples right now on Craigslist. City law bars the owners of rental housing from converting it to hotel rooms, but a loophole in that law makes what Foo’s outfit is doing technically legal. But he’s clearly violating the spirit of the city ordinance that seeks to protect rental housing from hotel conversions.

One of the main aesthetic complaints about the area — something Snellgrove’s lobbyists have tried to use to support the project — is the ugly fence that now surrounds the Golden Gateway Tennis and Swim Club. But who do you suppose put that fence there?

Do we as a city want to be giving special zoning benefits to companies that try to circumvent tax and housing laws?

3. It’s an environmental disaster. Snellgrove and his architects, Skidmore Owning and Merrill, are seeking LEED platinum certification for the project, saying that its energy-efficiency, water use, and green building materials will make it one of the most sustainable structures in San Francisco. It is, the project website notes, close to all types of public transit.

But LEED doesn’t take into account what the building is used for (see “Is LEED really green,” 7/5/11) — and in this case, the use makes a huge amount of difference.

People who buy multi-million-dollar condos don’t tend to take Muni or BART when they go places. That’s not conjecture, it’s a proven fact. A 2008 study by the American Public Transportation Association notes, bluntly, that wealthier people are more likely to drive cars. When you move into the stratospheric regions of the ultra-rich, that’s even more true. A 2011 report on the Charting Transport website notes: “The very rich tend to shun public transport.”

The current zoning in the area allows for one parking space for every four residential units. Snellgrove is asking for one space per unit — in other words, he figures every single buyer will have a car.

Many of the people who buy these condos won’t be working or even living most of the time in San Francisco. These are condos for world travelers, second and third homes for people who want to spend a few weeks a year in San Francisco. “They aren’t going to be living here all year,” Christina Olague, a former Planning Commission member who is now the District 5 supervisor, told us last July.

If five of the 165 residents of 8 Washington fly in a private or corporate jet from, say, New York to their SF pad once a month, the project will cause the use of jet fuel equivalent to what a normal family would use driving a car for 330 years, Paul noted.

“How many solar panels are needed compensate for burning 396,000 gallons of jet fuel a year?” he asked.

Then there’s the construction issue. If the developer’s projections are correct, as many as 20,000 dump truck runs will be trundling along the Embarcadero for several months, one every two minutes — and it could be happening right as the traffic nightmare called the America’s Cup is hitting the waterfront.

It also goes against some 40 years of waterfront planning policy, all of which as focused on downzoning and creating open space. This would be the first upzoning of San Francisco waterfront property in decades.

4. It will wipe out what is mostly a middle-class recreation facility. The Golden Gateway Tennis and Swim Club will be closed for three years, then (possibly) reopened later as a smaller facility. The club — with two outdoor pools and six tennis courts — sounds like something for the elite, and it’s managed by the upscale Bay Club, but a lot of the users are longtime Golden Gateway residents and seniors. “I would say 30 or 35 percent of the users are seniors,” Lee Radner, chair of Friends of Golden Gateway, told me. Most, he said, are middle-class people, and the expense isn’t that high. “My wife and I pay $3 a day to use the pool,” he said. “I swim every day, and it would cost more than that to use the public pools in the city.” He added: “There are some wealthier people, of course, but many of us are retired and on fixed incomes.”

We’re talking about 90,000 total square feet of outdoor recreation space — which dwarfs the 20,000 square feet of open space the developer promised to provide.

5. The city doesn’t get much out of the deal. In exchange for upzoning the waterfront, creating a big all of buildings and screwing up the city’s housing balance, what does the San Francisco general fund get? Not a lot. The estimates for new tax revenue run about $1.5 million a year of the next 60 years — and when you translate that to what economist call “net present value,” the cash equivalent today of that revenue stream, it’s about $30 million. The Port of San Francisco is talking about creating a special infrastructure financing district — sort of the equivalent of a redevelopment area — to pull that money out in advance, which may not even be legal (since part of the land is a former redevelopment area, the state law that allows these special finance districts may not apply). But even so, a Jan. 14 Port memo suggests that the agency has plans to spend all that money on its own infrastructure — setting up a potential battle between the supervisors and the Port Commission over where the money, if it actually can be collected up front, will go.

Like any developer, Snellgrove will pay into the city’s affordable housing fund — in this case, about $9 million to pay for the equivalent of 27 units. No affordable units will be on site, of course; that would detract from the uber-wealthy ambience of the place. And it’s not clear when those units would be built. “Nobody builds 27-unit buildings any more,” Paul, a former deputy mayor for housing, said. “We’ll have to wait until there’s enough money for a bigger project, somewhere, sometime down the road. That’s what we’re getting here.”

Either way, it’s not a huge benefit for allowing this disaster of a project — and it’s a terrible statement for San Francisco to make. At a time when the mayor has cleared the Occupy protesters — who are talking about how little the rich pay in taxes — off the waterfront, the city is preparing to move in the exceptionally rich, who aren’t paying anywhere near their fair share in tax revenue to local government.

(Nobody knows for sure whether the costs of servicing high-end residential exceed the revenue the city gets from property taxes. In 1971, the Guardian put together the first-ever cost-benefit study for highrise office development, which showed that commercial buildings cost the city more than they paid; that’s been confirmed and demonstrated over the years to the point where it’s hardly even an argument any more. The supervisors ought to ask the city economist or the budget analyst to do the same sort of analysis for luxury condos.)

There’s another element here: Mayor Lee made a point during his campaign to say over and over again that he was an independent thinker, that powerful and influential allies like Rose Pak would not be calling the shots at City Hall. This will be his first major test: Pak and lobbyist Marcia Smolens are working hard to promote 8 Washington. And we’re already getting some disturbing signals out of the mayor’s office.

Lee told us that he has “no thoughts” about the project and hasn’t been paying any attention to it. That’s an odd stance, considering that his own Port Commission is pushing it and staffers in his office are working with the developer. This is a big priority for Pak, and the notion that she has never mentioned it to the mayor defies reason. Board President David Chiu, who talks to the mayor regularly, opposes the project, which is in Chiu’s district.

It’s hard to imagine that anyone who pays attention to local politics could be missing what will be one of the landmark votes this spring on the Planning Commission — which will take up the project March 8 — and the Board of Supervisors.

The mayor, may, indeed, be ignoring everything that supporters and opponents of 8 Washington have said and may be waiting until the Planning Commission vote to take a position. But if he’s just ducking questions because he’s planning to support it, he’s making a big mistake.

This is a chance for San Francisco to go beyond the platitudes about building housing, go beyond the hype about “green” buildings, see through the fraud about community benefits and consider what this really is: A special favor for a developer who wants to cater to the top 1 percent of the 1 percent and move San Francisco even closer to being a city of, by, and for the elite. The only reasonable vote on 8 Washington is No.

Mayor Lee makes demands on SFUSD

Zelda Bronstein
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9
Mayor Lee makes demands on SFUSD

“You thought you felt an earthquake Sunday night. Actually, that was me.”

Assemblymember Tom Ammiano was on the phone, talking to me about Mayor Ed Lee’s plan to demand some changes in the way the San Francisco Unified School District manages its property — and to hold up the $6 million the city owes the district until that happens. The mayor says there will be “strings attached” to the rainy-day fund money that would normally go to help SFUSD avoid teacher layoffs — and while it’s not exactly clear what those strings are, except that the mayor wants surplus property to be developed or sold, it’s not what Ammiano had in mind when he created the fund as a supervisor.

“The mayor is trying to hold the school district hostage,” Ammiano said. “And it’s not well advised.”

It’s also really odd: For one thing, as School Superintendent Carlos Garcia told me in a phone interview, any money the district got from selling off surplus property would be earmarked for use in facilities development and couldn’t go to pay teachers or prevent program cuts. “He wants to see how we’re using the property, and that’s fine, I’m happy to share that with him,” Garcia said. “But selling property doesn’t help. Even if we sold everything, we’d still need the money from the Rainy Day Fund.”

The district is constantly looking at ways to use its surplus property, and does a study on the topic every two years. But it’s not simple — for one thing, enrollment is growing, and it’s entirely possible that some sites that are now surplus will be needed in the next few years. And Garcia is properly cautious about getting rid of public property without a very good reason.

He’s a little curious, too, about what the mayor has in mind. “This did come a little bit out of the blue,” he told me.

The whole situation creates another disturbing conflict, one I’ve been worried about for years. The mayor’s education advisor, Hydra Mendoza, also sits on the School Board. What happens when the guy who pays her salary at her day job — Mayor Lee — takes a position that’s directly at odds with the interests of the job the voters gave her, as a board member? I see that happening right now, and I don’t know how it’s going to play out.

With any luck, the mayor will come to his senses, cut the check and stop trying to tell the school district how to manage its property. If not, his education advisor is going to be in a bit of a pickle.

Mendoza told me she doesn’t see it that way — in fact, she said she doesn’t think the mayor will really hold up the $6 million. “It’s part of an ongoing conversation,” she told me. “People keep telling the mayor that the school district has all this surplus property and needs to sell it before they get any city money. The mayor is just responding to that, saying ‘is there another source of revenue?’ Because the rainy day fund is going to dry up.

“How that got portrayed as ‘strings’ I don’t know.”

She did say, however, that the mayor “has been very clear that he wants to look at other revenue streams” and wants to see a plan in place to use the surplus property. Even though, of course, it’s not that simple and Mendoza was quick to agree that you can’t just put a tech company in a building that’s part of a school site.

She also insisted that there’s no conflict here. “It works well for me and the district,” she said. “If I wasn’t here, the perception of the district at City Hall would be different.”

But still: We’re very close to a situation where the mayor is on one side of an issue and the school district is on the other, and there’s critical money involved, and Mendoza is in the middle. “We haven’t come to those crossroads,” she said. “I haven’t been put in that situation. We’ve had a lot of civil conversations.”

But it’s out there, and it’s a potential problem.

 

Editorial: The case against the 8 Washington tower

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27

Editorial note: In 1971, at the height of the Alvin Duskin anti-highrise battle, the Guardian did a special first ever cost benefit study for high rise office development.

We found that highrises cost the city  more in services than they produce in revenue.  This meant that the commercial high rise boom could be fought on economic grounds, not just aesthietic and environmental grrounds, and the Chamber of Commerce/Big development gang could never adequately refute our findings.  In fact, they are now taken for  granted. So, as the 8 Washington battle is poised to open the floodgates even further for a forest of market rate residential  buildings, it’s time for the city to do its own study to determine the economics of high end  residential buildings.  Does the cost of servicing luxury residential buildings exceed the taxes they pay? We and many others in the neighborhoods are certain that market rate housing doesn’t pay for itself. But the facts are needed and so we urge the supervisors to direct the budget analyst or the city economist to do a similar analysis  for luxury condos.  Below is Executive Editor Tim Redmond’s powerful argument against 8 Washington.

By Tim Redmond

tredmond@sfbg.com

In city planning terms, it’s a fairly modest project: 134 condos, no buildings more than 12 stories tall, on a 27,000-square-foot site. It’s projected to meet the highest environmental building standards and offers new open space and pedestrian walkways. It’s near Muni, BART, and ferry lines. And the city will collect millions of dollars in new taxes from it.

But the 8 Washington project, which will come before the Planning Commission March 8, has become a flashpoint in city politics, one of the defining battles of Mayor Ed Lee’s administration — and a symbol of how the city’s housing policy has failed to keep pace with the needs of the local workforce.

Put simply, it will create the most expensive condos in city history, housing for the richest of the 1 percent on the edge of the waterfront — and will further push San Francisco toward becoming a city that caters almost entirely to the very wealthy.

So in a city where the growing divide between the 1 percent and the rest of us has become a central issue and where the lack of affordable housing is one of the top civic concerns, 8 Washington is an important test. By any rational standard, this sort of development is the last thing San Francisco needs.

But some of the best-connected lobbyists in the city are pushing it. One of the mayor’s closest allies, Chinatown powerbroker Rose Pak, is a leading advocate — and the final outcome will say a lot about city politics in the Lee administration.

There are all sorts of half-truths and misleading statements by supporters of 8 Washington. Here are the five main reasons the project shouldn’t be approved.

1. It fills no housing need. San Francisco has no shortage of housing for the very rich; the dramatic need, outlined in both regional planning documents and the city’s own General Plan, is for low- and moderate-income housing for the people who actually work in this city (see “Dollars or sense?” 9/28/10). While San Francisco is getting richer by the day, the core workforce — public employees, workers in the hotel and restaurant industry, service workers, construction and trade workers, and a majority of the people in the lower levels of the finance and tech sector — are being priced out of the city. That means more people working here and living far out of town, often commuting by car, in what everyone agrees is an unsustainable situation. Meanwhile, more and more high-paid workers from Silicon Valley are living in San Francisco — again, commuting to distant jobs, either by car or by corporate bus.

The city’s General Plan states that some 60 percent of all new housing built in the city should be below market rate. San Francisco desperately needs housing for its workforce. This type of project simply puts the city deeper in the hole and further from its housing goals.

2. It’s a reward for bad actors. The main developer of this project is Simon Snellgrove, but one of his partners is, by necessity, Golden Gateway, which owns a significant part of the land — and which has been flouting at least the spirit if not the letter of city and state law and costing San Francisco tens of millions of dollars.

As project opponent Brad Paul has noted in written testimony, when Timothy Foo, the current owner, bought the complex from Perini Corp. about 20 years ago, he used a loophole in state law that allowed him to avoid a formal transfer of ownership. That means the property wasn’t re-assessed, costing the city about $1.5 million a year. According to the Assessor’s Office, the deal wasn’t illegal (and these tricks to avoid reassessment are relatively common) but still: He’s costing the city millions by using a loophole not available to most people.

Golden Gateway, which was built in a redevelopment area as middle-class housing, is now renting out apartments as short-term tourist or corporate rentals. There are dozens of examples right now on Craigslist. City law bars the owners of rental housing from converting it to hotel rooms, but a loophole in that law makes what Foo’s outfit is doing technically legal. But he’s clearly violating the spirit of the city ordinance that seeks to protect rental housing from hotel conversions.

One of the main aesthetic complaints about the area — something Snellgrove’s lobbyists have tried to use to support the project — is the ugly fence that now surrounds the Golden Gateway Tennis and Swim Club. But who do you suppose put that fence there?

Do we as a city want to be giving special zoning benefits to companies that try to circumvent tax and housing laws?

3. It’s an environmental disaster. Snellgrove and his architects, Skidmore Owning and Merrill, are seeking LEED platinum certification for the project, saying that its energy-efficiency, water use, and green building materials will make it one of the most sustainable structures in San Francisco. It is, the project website notes, close to all types of public transit.

But LEED doesn’t take into account what the building is used for (see “Is LEED really green,” 7/5/11) — and in this case, the use makes a huge amount of difference.

People who buy multi-million-dollar condos don’t tend to take Muni or BART when they go places. That’s not conjecture, it’s a proven fact. A 2008 study by the American Public Transportation Association notes, bluntly, that wealthier people are more likely to drive cars. When you move into the stratospheric regions of the ultra-rich, that’s even more true. A 2011 report on the Charting Transport website notes: “The very rich tend to shun public transport.”

The current zoning in the area allows for one parking space for every four residential units. Snellgrove is asking for one space per unit — in other words, he figures every single buyer will have a car.

Many of the people who buy these condos won’t be working or even living most of the time in San Francisco. These are condos for world travelers, second and third homes for people who want to spend a few weeks a year in San Francisco. “They aren’t going to be living here all year,” Christina Olague, a former Planning Commission member who is now the District 5 supervisor, told us last July.

If five of the 165 residents of 8 Washington fly in a private or corporate jet from, say, New York to their SF pad once a month, the project will cause the use of jet fuel equivalent to what a normal family would use driving a car for 330 years, Paul noted.

“How many solar panels are needed compensate for burning 396,000 gallons of jet fuel a year?” he asked.

Then there’s the construction issue. If the developer’s projections are correct, as many as 20,000 dump truck runs will be trundling along the Embarcadero for several months, one every two minutes — and it could be happening right as the traffic nightmare called the America’s Cup is hitting the waterfront.

It also goes against some 40 years of waterfront planning policy, all of which as focused on downzoning and creating open space. This would be the first upzoning of San Francisco waterfront property in decades.

4. It will wipe out what is mostly a middle-class recreation facility. The Golden Gateway Tennis and Swim Club will be closed for three years, then (possibly) reopened later as a smaller facility. The club — with two outdoor pools and six tennis courts — sounds like something for the elite, and it’s managed by the upscale Bay Club, but a lot of the users are longtime Golden Gateway residents and seniors. “I would say 30 or 35 percent of the users are seniors,” Lee Radner, chair of Friends of Golden Gateway, told me. Most, he said, are middle-class people, and the expense isn’t that high. “My wife and I pay $3 a day to use the pool,” he said. “I swim every day, and it would cost more than that to use the public pools in the city.” He added: “There are some wealthier people, of course, but many of us are retired and on fixed incomes.”

We’re talking about 90,000 total square feet of outdoor recreation space — which dwarfs the 20,000 square feet of open space the developer promised to provide.

5. The city doesn’t get much out of the deal. In exchange for upzoning the waterfront, creating a big all of buildings and screwing up the city’s housing balance, what does the San Francisco general fund get? Not a lot. The estimates for new tax revenue run about $1.5 million a year of the next 60 years — and when you translate that to what economist call “net present value,” the cash equivalent today of that revenue stream, it’s about $30 million. The Port of San Francisco is talking about creating a special infrastructure financing district — sort of the equivalent of a redevelopment area — to pull that money out in advance, which may not even be legal (since part of the land is a former redevelopment area, the state law that allows these special finance districts may not apply). But even so, a Jan. 14 Port memo suggests that the agency has plans to spend all that money on its own infrastructure — setting up a potential battle between the supervisors and the Port Commission over where the money, if it actually can be collected up front, will go.

Like any developer, Snellgrove will pay into the city’s affordable housing fund — in this case, about $9 million to pay for the equivalent of 27 units. No affordable units will be on site, of course; that would detract from the uber-wealthy ambience of the place. And it’s not clear when those units would be built. “Nobody builds 27-unit buildings any more,” Paul, a former deputy mayor for housing, said. “We’ll have to wait until there’s enough money for a bigger project, somewhere, sometime down the road. That’s what we’re getting here.”

Either way, it’s not a huge benefit for allowing this disaster of a project — and it’s a terrible statement for San Francisco to make. At a time when the mayor has cleared the Occupy protesters — who are talking about how little the rich pay in taxes — off the waterfront, the city is preparing to move in the exceptionally rich, who aren’t paying anywhere near their fair share in tax revenue to local government.

(Nobody knows for sure whether the costs of servicing high-end residential exceed the revenue the city gets from property taxes. In 1971, the Guardian put together the first-ever cost-benefit study for highrise office development, which showed that commercial buildings cost the city more than they paid; that’s been confirmed and demonstrated over the years to the point where it’s hardly even an argument any more. The supervisors ought to ask the city economist or the budget analyst to do the same sort of analysis for luxury condos.)

There’s another element here: Mayor Lee made a point during his campaign to say over and over again that he was an independent thinker, that powerful and influential allies like Rose Pak would not be calling the shots at City Hall. This will be his first major test: Pak and lobbyist Marcia Smolens are working hard to promote 8 Washington. And we’re already getting some disturbing signals out of the mayor’s office.

Lee told us that he has “no thoughts” about the project and hasn’t been paying any attention to it. That’s an odd stance, considering that his own Port Commission is pushing it and staffers in his office are working with the developer. This is a big priority for Pak, and the notion that she has never mentioned it to the mayor defies reason. Board President David Chiu, who talks to the mayor regularly, opposes the project, which is in Chiu’s district.

It’s hard to imagine that anyone who pays attention to local politics could be missing what will be one of the landmark votes this spring on the Planning Commission — which will take up the project March 8 — and the Board of Supervisors.

The mayor, may, indeed, be ignoring everything that supporters and opponents of 8 Washington have said and may be waiting until the Planning Commission vote to take a position. But if he’s just ducking questions because he’s planning to support it, he’s making a big mistake.

This is a chance for San Francisco to go beyond the platitudes about building housing, go beyond the hype about “green” buildings, see through the fraud about community benefits and consider what this really is: A special favor for a developer who wants to cater to the top 1 percent of the 1 percent and move San Francisco even closer to being a city of, by, and for the elite. The only reasonable vote on 8 Washington is No.

The failure of Lee’s business tax plan

Zelda Bronstein
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The failure of Lee’s business tax plan

The Mayor’s Office and city finance officials are circulating drafts of a new business tax plan that would largely abolish the payroll tax and replace it with a levy on gross receipts.

Ben Rosenfield, the city controller, and Ted Egan, the chief economist, have been meeting with business groups and presenting what’s described in the documents they’re circulating as “one possible idea.” And there’s some very positive news about the proposal: It would greatly broaden the tax base (only about 10 percent of the city’s businesses are hit by the payroll tax) and it’s designed to be somewhat progressive: Businesses with higher gross receipts would pay a higher percentage tax.

The plan is complicated — since some types of industries (retailers, for example) have high gross receipts compared to payroll, and some (financial services) have high payrolls compared to gross receipts, the levies are broken down into four schedules. At the lowest end, companies with comparatively large gross reciepts would pay between 0.05 percent and 0.125 percent. At the highest end, the tax would go from 0.220 to 0.535.
But there’s one central — and simple — element of the proposal: At this point, it’s entirely revenue neutral. In fact, finance officials say, over time the total tax burden paid by local businesses would go down, since payroll tends to rise slightly faster than gross receipts.

That, sources say, is something the mayor has made clear he doesn’t want to budge on. He’s not willing to accept a plan that raises the total amount of money the city gets from business taxes.

Which puts him in synch with what some business groups want: “The business community thinks this should be revenue-neutral,” Scott Hauge, who runs Small Business California, told me.

But in a city that faces a large structural budget deficit, some supervisors have other ideas. “I want to look at new revenue possibilities,” Sup. John Avalos said.

And even the current proposals would let banks, which are exempt from local business taxes, escape without paying anything.
In reality, the proposals are less then revenue-neutral. Rosenfield and Egan project that the new tax system would lead to the creation of 2,500 jobs a year — mostly because businesses over time would be paying lower taxes.

Hague told me that he’s not sure exactly how business leaders feel about this. “We don’t know yet how it will affect people,” he noted. But some political leaders have been clamoring for years for the elimination of the payroll tax, which, by taxing employment, appears to be a damper on job growth.

That’s actually a myth. The payroll tax is so minor that it can’t possibly influence any individual hiring decision. It’s true that if city business taxes in general are reduced, companies will have more money — and some might spend that on new hiring. But San Francisco, like most major cities, has to have some kind of business tax — and I can already hear some downtown types complaining that a gross receipts tax “punishes growth and success.”

This proposal is a long way from what Sup. David Chiu suggested a year ago. His plan would have included a commercial rent tax — ensuring that financial institutions that get away with paying nothing would have to contribute like other businesses. Like most local taxes, it wasn’t perfect — state law bars cities from imposing corporate income taxes and limits what else municipalities can do — but together with a reworked gross receipts tax, it was projected to bring $28 million more dollars into the city treasury — without any job loss.

But the Chamber of Commerce and crew fought bitterly against that idea, and Chiu withdrew it.

At this point, Chiu said, he’s working with the mayor and trying to get the business community to accept the idea of a change in the tax structure. But this is a rare opportunity to do two things — to make the local tax system more fair, and to raise taxes on the biggest companies to bring additional revenue into the city.

The plan will probably have to go to the ballot anyway, so why not do it right?

Mayor Lee praises the importance of nightlife to SF

Sasha Cuttler
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Mayor Lee praises the importance of nightlife to SF

Addressing a gathering of nightlife advocates at a California Music and Culture Association event last night, Mayor Ed Lee praised the economic and cultural role that the entertainment industry plays in San Francisco, announced plans to add a “nightlife unit” in the Mayor’s Office of Economic and Workforce Development, and even hinted that Halloween in the Castro might be returning after being shut down during the city’s so-called “war on fun.”

“If I’m going to be about jobs,” he said, referring to his near-constant emphasis on economic development, “it should be both for the day and for the night…I do recognize this as a business, as a serious contributor to the economic engine of city.”

Lee referenced the new Controller’s Office report that was requested by Sup. Scott Wiener, which concludes that the nightlife industry generates about $4.2 billion in annual economic activity in the city (that report will be the subject of a rally and hearing on Monday at City Hall starting on the steps at noon). And he said that the benefits of a vibrant nightlife scene also help make San Francisco an appealing city for other businesses, an indirect economic benefit.

“You’re all part of a great part of the city that keeps everyone refreshed,” Lee said, later adding, “I think we can do more at night. The young people who work gobs of hours need to have an entertaining evening.”

As he announced plans to add a nightlife unit to OEWD, the office that works with private companies looking to locate or expand here, he said, “We, as government, need to fast-track things that are successful.” Yet he also said that public safety is still a challenge and called for the industry to work closely with police to keep everyone safe.

Yet Lee spoke positively about Halloween in the Castro, a once-popular event that was canceled because Mayor Gavin Newsom and then-Sup. Bevan Dufty (who Lee recently hired as his new homeless czar) feared the city couldn’t control it, and Lee alluded to plans being developed to revive it in some form. “I hate to see any event that brought so many people to the city gone,” he said.

The event was held at The Grand, a club owned by CMAC board member and new Entertainment Commissioner Steven Lee. CMAC was formed two years ago in response to crackdowns on SF nightlife by city and state officials.

The 8 Washington disaster goes to Planning

Zelda Bronstein
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100
The 8 Washington disaster goes to Planning

The urban planning disaster that is 8 Washington goes before the San Francisco City Planning Commission March 8 amid a long list of questions — including Mayor Lee’s position on the project and how it could screw up the America’s Cup.

Developer Simon Snellgrove wants to build the most expensive condos in San Francisco history on the waterfront, 145 units that will be far out of reach to anyone who makes less than half a million dollars a year. And many of the units will require income far higher than that. It’s not just housing for the 1 percent; it’s housing for the top half of the 1 percent.

There’s no need for this kind of housing in SF; the very rich have no problem finding places to live. And the spot zoning violates every standard of good waterfront planning practice.

The project will benefit the Port of San Francisco, which stands to take a cut of the money since some of the project is on Port land. But more than half of the land is owned by Golden Gateway and is a former redevelopment area, so the supervisors and the Port are going to have to fight over who gets the property tax increments and how that’s all financed.

More interesting, 8 Washington will be a boon to Golden Gateway, which as the landowner is a partner in the deal. And Golden Gateway is one of those big properties that are paying far too little in city taxes. When the complex changed hands several years ago, the owners used a stock-swap deal to transfer it, avoiding the Prop. 13 reassessment that could have substantially raised its taxes. So the city’s losing millions of dollars — and now Timothy Foo, who is the principal owner of Golden Gateway, will be getting a nice favor from the city he’s been screwing.

Oh, and by the way — a lot of Golden Gateway units are being advertised as short-term (that is, hotel) rentals — something that violates at least the spirit of city law. This is an outfit that deserves special zoning treatement from San Francisco?

Then there’s the fact that this could be a serious problem for the big America’s Cup party. Project critic Brad Paul has been analyzing the impacts of the development, and noticed some new language in the comments and responses to the Environmental Impact Report suggesting that excavation could lead to something like 200 dump-truck trips a day along the Embarcadero — roughly one trip every two minutes. In an email to Paul, Paul Matltzer in the Planning Department confirmed that the likely construction process could, indeed, involve that many dump trucks, rumbling along the Embarcadero during the peak construction period, which will also be the peak period for America’s Cup tourism.

Dump trucks, Paul (who used to drive one) notes, start slowly and brake slowly. The Embarcadero is already crowded — and will be far more crowded during the Cup races, so much so that city officials are thinking of closing traffic lanes to all but bicyles and transit. How, exactly, will that work out with 200 trucks a day fighting for room?

I’ve called and emailed the America’s Cup people, but they haven’t gotten back to me. I’ll keep you posted.

Lee’s office hasn’t gotten back to me, either, but I’m hearing that the mayor is telling people he hasn’t made up his mind — on a project that’s a week away from the Planning Commission and that one of his close allies, Rose Pak, is strongly promoting.

 

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