Top Stories Archives — Page 17 of 50 — San Francisco Bay Guardian Archive 1966

‘I’m just doing my job, ma’am’

August 12, 2008

› culture@sfbg.com

Almost every San Francisco car owner has had this experience at least once: you parked at a metered or timed spot, and now you’re running late. You rush back to your vehicle only to find a uniformed official already filling out your parking ticket. Now you’re pissed — at yourself, your car, the city’s rules, and the person holding the notepad. On some level you know the parking official is simply doing her job — it’s nothing personal. But on a more visceral level, you’re seething with resentment, and it’s directed squarely at her. Glancing at the ticket that’ll cost you more than this week’s groceries, you want to ask, "How can you sleep at night?"

I recently went through this experience twice in one week. And once I got past the automatic hatred of all uniforms, three-wheeled vehicles, and notepads with carbon copies, I began to wonder what it would be like to have a job most people don’t want you to do.

I got to thinking: not everyone can be an urban hero — those professionals who, because of the nature of their jobs, are considered benevolent and necessary. They put out our fires, save our lives, and teach our children how to read. No, some people are urban antagonists. They call during dinner time. They interrupt your picnic at the park. They write parking tickets.

I wanted to talk to some of these people, to find out not only just how badly they’re treated, but also why they continue to show up for work, day after day. It turned out it can be so hard to have these kinds of jobs that most parking control officers wouldn’t even talk to me. And none I interviewed would give me a real name.

But they did give me some insight.

‘SORRY, I ALREADY STARTED WRITING.’

With their uniforms, handheld ticket-gadgets, and ubiquitous three-wheeled vehicles, there are few professionals more recognizable on San Francisco streets than the Parking Control officers. And with 44 recorded incidents involving angry motorists threatening or assaulting officers in the course of performing their duties over the past two years, few professionals are subject to such acute on-the-job stress.

"It’s tough sometimes," acknowledged B., a PCO writing tickets near the intersection of Valencia and César Chávez streets, "because you’re doing your job and a lot of the time people see you as the opposition — like an enemy, not as someone who is doing a service to the city." People forget that by writing tickets, PCOs crack down on double-parkers who block traffic, space-hoggers who stay in one spot all day, and sidewalk-parkers who obstruct walkways for pedestrians such as mothers with strollers, B. said.

But not all PCOs take comfort in that rationalization. K., another anonymous PCO, said, "You just need to find your niche. I respond to complaints — blocked driveways, construction zones, fire hydrant obstructions — I’m happy. It’s cool."

"It’s not for everybody, but I would say it’s a fine job," he continued. "It pays well. It’s secure. I’ve been doing this for 10 years and I’ve never had a problem. If you’re cool about it, if you’ve got the right demeanor, then the saying is true: you get what you give."

Judson True, a spokesman for the San Francisco Municipal Transportation Agency, added that PCOs conduct traffic during special events and congested hours, help motorists around accident sites, and even conduct undercover stings to prevent the abuse of disabled parking placards. Most of all, though, PCOs — like others with less-than-lovable jobs — are still people.

"No one likes to get parking tickets. That’s an obvious reality," True said. "But people need to remember that the parking control officers are their neighbors, their friends, their family — people who are doing an important job for the whole city."

‘CAN YOU SPARE A MOMENT FOR THE ENVIRONMENT?’

Yes, those clipboard jockeys scanning for eye-contact outside Whole Foods or approaching you at Dolores Park have a name. They’re called canvassers, and their job is to solicit votes, subscriptions, opinions, or something similar — and often they’re paid by the signature. These days canvassers are talking about everything from orphans to Obama, gun control to global warming. But most people aren’t interested in what they’re called or what issue they’re representing.

"I’ve been called pariah, douchebag, whore, woman of the night," said Valerie, who recently canvassed at Market and Powell streets for an international charity. "I’ve had coffee poured on me. I’ve had people scream ‘Get the fuck out of my face!’ and yell ‘It’s a scam! It’s a scam!’ while I talk with other people."

Dave, a canvasser for Progressive Political Solutions who worked further down Market, agreed the job can be challenging — but worth it.

"There are going to be days that people are totally against everything you do," Dave said. "But then there’s someone — one person — who makes the day worthwhile, someone who I would have never been able to talk to in an office."

Dave was enthusiastic about the skills he has developed working the streets. He not only credited canvassing for PPS with enhancing his verbal and interpersonal skills, but also with learning industry-specific skills like how to do press calls and conferences, and understanding the political process. Within months of taking the job, he said, he had risen to staff supervisor, helping to advise and manage new hires.

"I like this job in the sense of the big picture," Dave said, before heading into a crowded UN Plaza, clipboard in hand.

Valerie confirmed that for canvassers, the big picture is what it’s all about. Valerie, no less positive for being verbally assaulted and doused with coffee, added, "At the end of the day — no matter how many times someone calls me a douchebag or a bitch — I am making someone’s life better. That’s what really matters to me."

‘SORRY TO CALL YOU AT DINNERTIME, BUT … ‘

Kurt Stenzel, vice president of sales at Tactical TeleSolutions, was one of the few people I interviewed who gave me a full name. Then again, he swears his salespeople aren’t the same ones interrupting your primetime TV hour — and he credits telemarketing for his meteoric rise to success.

"I took the Greyhound bus from New York City with $200, got a telemarketing job, and one thing led to another and now I’m selling to big tech guys [Apple, IBM, Sprint] every day," said Stenzel, who runs the call station downtown.

Though TTS mainly does business-to-business work, Stenzel explained, most telemarketers do make cold calls to homes at some point. His was in New York, where he worked in a windowless room calling people who didn’t want to hear from him.

Their attitude, he says, was, "You’re trying to rip me off — now prove otherwise."

"It’s a tough go," he admitted. "People will curse you out or be crazy."

So what’s good about this job? According to Stenzel, it’s how egalitarian the hiring process is. Call stations aren’t interested in padded resumes and flashy degrees. They want people who know how to talk, plain and simple.

"If they’re articulate, it doesn’t matter so much if they’ve got the right degree," he said. "In that sense, call center work is one of those genuine equal opportunity situations. If people have dropped out of school or come on a tough time, people can come here, build up some skills, and really build their way up."

Though these interviews were enlightening, I can’t say I want to do any of these jobs any more than I did before. And I can’t promise to be less annoyed the next time a canvasser butts into my private conversation or a PCO ruins my morning. But I do hope I’m at least a little more compassionate.

Of course, compassion would be so much easier, officer, if you just let me go. Just this once.

Diving for dollars

August 12, 2008

› culture@sfbg.com

Perhaps it’s because I have my basic scuba license, but the idea of diving for profit has always held a certain mystique for me. It’s one thing to look at fish on vacation, but quite another to do something so dangerous and physically demanding every day.

I’ve always wondered: what kind of person chooses such a job?

The earliest commercial divers were salvage workers, roving the alien ocean floor in search of sunken treasure. At that time, when little was known about the physical effects of the frigid, high-pressure environment of the deep ocean, only men of a certain build could do it successfully.

Divers in old-fashioned canvas suits and huge round brass helmets (remember Red Rackham’s Treasure?) laid the foundations for the towers of the Golden Gate Bridge in 90 feet of chilly, turbulent water. Now pretty much anyone can take a simple course, strap on a scuba tank, and get acquainted with a coral reef. Still, it takes a particular mixture of recklessness, humor, and grim determination to do it every working day, at depths where no recreational diver is certified to go, in temperatures that would have most us running for a blanket and a cup of sugary tea.

Dean Moore, operations manager at Underwater Resources, a San Francisco firm specializing in marine construction, has one of those old-fashioned suits hanging in his office. Although the suits were massive and heavy, the brass and copper helmets were so buoyant that divers had to wear lead-weighted boots to keep from shooting to the surface. Moore has a pair of the boots as well, thought they’ve long been replaced by equipment made of Kevlar and Neoprene. Moore admits that being immersed in this world has soured him on recreational diving. When not working, he says, "I wanna stay high and dry. I think you lose a bit of the love of the sport."

Moore and his lead diver, Chris Moyer, showed me around their office and gave me a rundown of the day-to-day operation. The two are frequently called on to do some pretty nasty and unsafe work: crawling into narrow pipes, diving straight into raw sewage, or containing a pollution bloom near an oil refinery. If some politicians get their way, divers like Moyer could be getting a lot more work in the next few years building and maintaining massive offshore drilling platforms, vessels, and pipelines.

I was intrigued by all the equipment, of course — the hazmat suits and tiny robot submarines — but what really interested me is what makes these guys tick.

When asked to describe the diver’s typical personality, Moyer laughs. "Take your average motorcycle gang biker, mix in a little bit of astronaut, and a little bit of, say, a chimpanzee or a lowland gorilla, and that compilation gives you a commercial diver," he said. "I’m partial of course, but I think we’re the sexy fighter pilots of the construction world."

For Moyer, it was an ad in a scuba magazine. Like many divers, he was in the military first. When his enlistment ended, he saw the ad. "There’s this guy climbing up this ladder out of the water, and he’s wearing this neat helmet I’ve never seen before — it’s got like a light and a laser gun on it, and it says ‘Come up a winner,’<0x2009>" he explained, sitting in a small conference room with a whiteboard covered in equations and drawings. "And I’m, like, hmm, yeah."

Inspired, Moyer enrolled in the College of Oceaneering in Wilmington, where he was trained to work in cold water, low visibility, and extreme depths. He specialized as an advanced dive medic, qualifying him to recognize and treat that most notorious of divers’ ailments: the bends. Surfacing too quickly results in a sudden change of pressure, causing dissolved nitrogen in the blood to form bubbles that can lead to stroke. Moyer explains that each dive to a certain depth requires about an hour of decompression in the water, done in a series of "stops," where a diver hangs out a certain depth, allowing the nitrogen to dissolve slowly and naturally. "That buys you a few minutes when your head breaks the surface of the water before you start turning into a shaken up pop bottle," he said. Divers immediately hop in a pressurized chamber to breathe pure oxygen for a couple of hours. The sealed, all-oxygen environment carries its own hazards, and horror stories of fires and explosions abound.

After dive school, Moyer headed to the Gulf of Mexico, where 80 percent of the world’s commercial divers work, maintaining the massive oil platforms that float miles out to sea. He dove for a company whose main business was laying and repairing pipelines between platforms. Unlike Bay Area divers, workers in the Gulf aren’t unionized, so private firms regulate the industry and pay divers whatever they feel like — which, according to Moore, is sometimes a third of what a union diver can make in the Bay Area. Moore explains that though Underwater Resources can’t outbid nonunion firms for big contracts, most ambitious divers will eventually switch to unionized companies because that’s where all the interesting public-works jobs are. "Certainly in the Bay Area and up and down the West Coast, it’s expected that any decent diving company will be in the union," he said.

Maybe it was the promise of better pay that led Moyer to leave the Gulf for the Bay Area after a year. He recalls calling around looking for employment. "I’m, like, hey, I’m here and I’m ready to dive, and they’re, like, oh, that’s nice, so are all the other guys who call me every day," he remembered.

Moyer was surprised to learn that he was expected to join Pile Drivers Local 34, a division of the Northern California Carpenters Union, and start a pile-driving apprenticeship right away. With dive school and a year’s work under his belt, he didn’t like the idea of driving pile for a living. At the same time, he discovered that diving work wasn’t as consistent in the Bay Area as it had been in Louisiana, and realized it would help to have something to fall back on. As long as a member is working, Local 34 will sponsor apprenticeships, provide excellent medical benefits and, after 20 years, a handsome pension. Part of Underwater Resources’ agreement with the union is that the divers get paid for at least an eight-hour day, no matter how much time they actually spend in the water — good news in a profession where weather, complications, and injuries can cut a dive short.

Because divers are freelancers who often work offshore on drilling vessels for months at a time, the trade tends to attract outsiders, people who have difficulty conforming, and people without families. This, in addition to the close quarters that commercial divers on an offshore job have to live in —sometimes spending weeks in a small, pressurized chamber called a "dry bell" that enables them to dive to depths of 400 feet without time-consuming decompression — may partly explain why few women are in this trade. When they do work in marine construction, it’s often topside, supervising or operating the small, remotely operated ROV robots that go where it’s too deep or dangerous to send divers. Moore laments the lack of women in the industry. "We’ve never employed any. I don’t know why. It’s unfortunate — I’d be into it."

As for me? I think I’ll stick to coral reefs for now.

PG&E’s Lie of the Week

August 12, 2008

The mailer that arrived last week shows a bullet hole blown through a pile of money and urges voters to beware the Board of Supervisors’ $4 billion takeover of Pacific Gas and Electric Co. It was paid for by the "Committee to Stop the Blank Check, a coalition of concerned consumers, small businesses, labor, community organizations and Pacific Gas and Electric Company." PG&E, needless to say, is picking up the check for the campaign.

Nowhere does the mailer specify the legislation it’s attacking. Why not? Because the charter amendment is called the Clean Energy Act, a proposition mandating that the city pursue a comprehensive plan for 100 percent renewable energy. That plan may include buying or constructing an electricity distribution system — which is what PG&E is really fretting about.

"The only thing green about it is cost," the flyer says. "The fact is, this proposal is backed by many of the same supervisors who are trying to build fossil fuel power plants in San Francisco."

Actually, the Clean Energy Act was authored by Sup. Ross Mirkarimi, who consistently opposes burning more fossil fuel for energy and is against the city power plants.

PG&E, on the other hand, gets 41 percent of its electricity from burning fossil fuels and the company is not on track to meet the state’s meager mandate of 20 percent renewables by 2010. In fact, the company’s record is only getting worse: four new PG&E-owned fossil fuel plants are under construction — the Tesla plant in Alameda County, Gateway in Antioch, and two other facilities in Colusa and Humboldt.

Black exodus emergency

August 12, 2008

› sarah@sfbg.com

San Francisco is losing its black population faster than any other large city in the United States — and the trend is unlikely to stop unless the city takes immediate action.

So says a draft report from an African American out-migration task force put together by the Mayor’s Office last year. It wasn’t published in final form early enough to have an impact on the June 3 election, when voters green-lighted Lennar Corp.’s plan to develop thousands of luxury condos in Bayview/Candlestick Point, one of the few remaining African American neighborhoods in San Francisco.

Task force members didn’t get to present their draft recommendations, which include preserving and improving existing housing and producing new affordable housing, until an Aug. 7 public hearing called by Sup. Chris Daly.

The out-migration task force, which used 2005 US Census and state demographic data, places the city’s African American population at 1/16 of San Francisco’s total population in 2005, compared to its two largest minorities, Asians and Hispanics, which make up 1/3 and 1/8, respectively.

"We saw that the African American population has declined by 40.8 percent since 1990, and as a share of the population decreased from 10.9 percent in 1990 to 6.5 percent in 2005," the report states.

"That’s not enough people to fill Candlestick Park," observed Fred Blackwell, executive director of the San Francisco Redevelopment Agency, which has been faulted for deliberately displacing blacks from the Fillmore District during the 1960s and for not doing enough to protect blacks in its Bayview-Hunters Point redevelopment plans.

The task force further projects that the city’s black community will continue to decline to 32,300 in 2050, or 4.6 percent of the total population.

Blackwell cited the lack of affordable housing, as well as a lack of educational and economic opportunity, severe environmental injustice, an epidemic of violence, and lack of cultural and social pride, as the reasons blacks are leaving, or not moving to, San Francisco.

"A lot of people mentioned the notion of being an outsider looking in," Blackwell said. "People can see a Chinatown and a Little Italy, but there wasn’t an area of town that seemed to celebrate the African American community."

The findings were not exactly news to the task force or the black community.

"We could paper the walls of this building with reports that have been made on this issue," said task force chair Aileen Hernandez, citing similar studies in 1995 and 1972.

Fellow task force member Barbara Cohen said the draft recommendations "should have long ago been called the final recommendations."

The Rev. Amos Brown accused Daly of not bonding with the black community. "I’d like to see you coming to church on Sunday, to NAACP meetings, to be down in the trenches, walking arm-in-arm," Brown said. "Let me know next time there’s a NAACP meeting, and I’ll be there," Daly replied.

Calling the city’s black depopulation an emergency, the Nation of Islam Minister Christopher Muhammad urged the Board to take the issue out of Mayor Gavin Newsom’s hands.

"It’s time to begin to change the culture of redevelopment," said Muhammad, who wants to establish endangered community zones in BVHP and the Western Addition.

"It’s revolutionary, but doable," said Muhammad, who characterized the city’s Redevelopment Agency as a "cheap grant-hustling operation" after the agency admitted that it cooked a state grant application this May by claiming it needed $25 million so it wouldn’t have to mothball a project the city and Lennar are developing at Hunters Point Shipyard.

Blackwell defended the mayor.

"This is not a set of recommendations that have been sitting on the shelf," said Blackwell, claiming that Newsom is working to implement a violence prevention plan and rebuild public housing.

Blackwell also recommended expanding the agency’s certificate of preference program citywide, an idea that Sup. Ross Mirkarimi has already placed before the Board.

Dirty secrets under the big top

August 12, 2008

› steve@sfbg.com

The circus has come to town. Ringling Brothers and Barnum & Bailey Circus, the largest and most profitable show of its kind in history, is in Oakland this week, and will be headed to San Jose next week. Spectators will see trapeze acts, clowns — and animals, particularly elephants, performing the trademark stunts that are considered the highlight of the event.

But the show may soon be over.

Ringling Bros. has been battling with animal welfare advocates for a generation or more, and a landmark federal lawsuit headed to trial in October could finally answer the question of whether rough, regular treatment of endangered Asian elephants by circus handlers constitutes illegal animal abuse.

At stake is the future of performing animals in circuses, particularly this 138-year-old global institution. Circus officials say that if the court prohibits the use of tools like leg chains and the ankus (an elephant training tool that activists call a bull hook and handlers call a guide), they’ll stop touring with elephants — a feature that they admit is their biggest draw.

The case, originally filed eight years ago by three national animal welfare groups and former Ringling Bros. elephant handler Tom Rider, has unearthed a treasure trove of damning inside documents from both Ringling Bros. and the US Department of Agriculture, the agency that regulates circuses and ensures their compliance with the Endangered Species and Animal Welfare acts.

Among the allegations are claims of repeated injuries to elephants by ankus-wielding handlers, efforts to conceal animal abuse from the public and government regulators, the preventable deaths of three baby elephants, prevalence of tuberculosis (the same strain contracted by humans) in elephants and handlers, and a pattern of high USDA officials overriding the enforcement recommendations of agency investigators and ignoring evidence of abuse.

"Ringling Bros. engages in these unlawful activities by routinely beating elephants to ‘train’ them, ‘discipline’ them, and keep them under control; chaining them for long periods of time; hitting them with sharp bull hooks; ‘breaking’ baby elephants with force to make them submissive; and forcibly removing nursing baby elephants from their mothers before they are weaned, with the use of ropes and chains," reads the federal lawsuit filed by American Society for the Prevention of Cruelty to Animals, Animal Welfare Institute, the Fund for Animals, and Rider. It will be heard in US District Court in Washington, DC, starting Oct. 7.

Despite its major implications, the case has drawn surprisingly little media attention. But it’s a remarkable story, full of juicy documents, an abundance of YouTube video footage that appears to show Ringling Bros. animal abuse — along with Ringling Bros.’ role in derailing the career of a prominent Bay Area television news anchor and the intriguing involvement of shadowy CIA operatives.

Critics say Ringling Bros.’ extensive advertising makes media outlets pull punches, but another reason the circus has avoided bad press may lie with other Ringling lawsuits that contain some astounding revelations of how the circus — or more specifically, circus owner Kenneth Feld and his Feld Entertainment, the world’s largest live entertainment company — treats those who seek to expose its secrets.

DIRTY CIRCUS TRICKS

Power and illusion have always been mainstays of the circus, ever since P.T. Barnum reportedly said, "There’s a sucker born every minute." Elephants and other exotic animals have always been important features of the show as well, going back to the 1860s when James Anthony Bailey displayed Little Columbia, the first elephant ever born in a circus.

The nation’s three largest circuses — Barnum’s, Bailey’s, and the Ringling Brothers‘ — gradually merged into one by 1919 and enjoyed growing popularity until entering into a period of decline during the Great Depression. That decline continued through the Hartford Circus Fire of 1944, when more than 100 people died inside a Ringling Bros. tent, and into the 1950s, when television became popular.

But music promoter Irvin Feld began to turn the circus around in the late ’50s, bringing in new acts and increasing the circus’s profitability. In 1967 he bought the company and later passed control of the circus to his only son, Kenneth, who has prospered along with the show.

Kenneth Feld made Forbes magazine’s list of the 400 richest Americans in 2004, with a reported net worth of $775 million. Feld Entertainment made the Forbes list of the nation’s top companies in 2000, ranking 404th with a reported annual revenue of $675 million and profits of $100 million.

Feld also owns and operates such shows as Disney on Ice, Disney Live, High School: The Musical, and the Siegfried and Roy tiger-taming act.

But all is not well in the Feld empire.

When Feld had a falling out with his top lieutenant, Charles Smith, in 1998, Smith filed a wrongful termination lawsuit that exposed the nefarious inner dealings of "The Greatest Show on Earth," including alleged animal abuse, public health threats, and the use of a top former CIA official to spy on, infiltrate, and sabotage animal welfare activists and journalists.

Among other things, the case brought to light charges that some of the elephants have been exposed to or have contracted tuberculosis.

Joel Kaplan, a former private investigator who worked for Feld, alleged in a deposition in the Smith case that TB was a serious problem among the pachyderms. "I think it’s immoral to have elephants traveling in every arena in the country with tuberculosis," noted Kaplan, who filed his own lawsuit and settled for $250,000. He stated that he had been told by a Ringling Bros. veterinarian that "about half of the elephants in each of the shows had tuberculosis and that the tuberculosis was an easily transmitted disease to individuals, to human beings."

Also included in the case was a deposition by Clair George, the No. 3 person in the CIA until 1987, when he was convicted of lying to Congress about the Iran-contra scandal (he was pardoned by President George H.W. Bush on Christmas Eve 1992). George admitted to working for Feld and conveyed chilling tales of sabotage, including the case of freelance journalist Jan Pottker, who wrote a 1990 magazine profile of the Feld family which included allegations that Irvin Feld maintained a longstanding homosexual relationship outside his marriage.

To deter her from writing a book about the Feld family, George outlined a scheme to have one agent befriend her and another seduce her, spy on her progress, feed her conflicting information, and even get her a book deal on another project to divert her, with a $25,000 advance allegedly paid by Feld.

"I undertook a series of efforts to find out what Pottker was doing and reported on the results of my work to Mr. Feld," George wrote in a sworn affidavit. "I was paid for this work by Feld Entertainment or its affiliates. I prepared my reports in writing and presented them to Mr. Feld in personal meetings."

Amy McWethy, a spokesperson for Feld Entertainment, refused to discuss the cases or their implications.

The statements of George and Kaplan describe secret bugging and phone tapping, bribes and clandestine cash settlements to silence critics (including Smith, who settled his lawsuit for $6 million), and infiltration of groups such as People for the Ethical Treatment of Animals.

"As part of my work for Feld Entertainment," George wrote in his affidavit, "I was also asked to review reports from [Feld executive vice president] Richard Froemming and his organizations based on their surveillance of, and efforts to counter, the activities of various animal rights groups."

National security reporter Jeff Stein (now with Congressional Quarterly) wrote the definitive account of Feld’s alleged black ops for Salon.com ("The Greatest Vendetta on Earth," 8/30/01), and was also allegedly targeted for surveillance and retribution, according to a story in the May/June 2002 issue of Columbia Journalism Review ("Investigations: The scary circus," by Jay Cheshes).

Stein’s original stories were followed up by 60 Minutes in May 2003, which essentially repeated the allegations.

The next year, KTVU anchor Leslie Griffith got onto the circus story, doing lengthy, investigative reports on the animal abuse lawsuit revelations for KTVU in 2004 and 2005, just as Ringling Bros. was coming to town.

Then Griffith left the station — at least in part because of the backlash she says she felt from both her corporate bosses and Ringling Bros., whose internal documents reveal an aggressive strategy to counter negative media coverage.

A training manual made public as part of the lawsuit outlines how the circus responds to reporters:

"Immediately upon learning about negative stories about Ringling Bros., the Animal Issues Department will put in place the [Rapid Deployment Force]," it states. "The Animal Issues Department will directly contact the editor/news director…. Armed with videos, literature and other information, the Animal Issues Department Head will demand a retraction or equal time and will work in concert with the grass roots campaign…. If the editor/news director refuses the request, Legal will be informed to determine what recourses exist."

Griffith says it was after KTVU was targeted by this effort that she was barred from doing any more circus stories and her relationship with the station began to deteriorate. "All of a sudden my hair wasn’t good enough, my makeup wasn’t good enough — after 25 years of doing the news."

Officially Griffith and KTVU parted on good terms with mutual statements of respect. Even today, KTVU general manager Tim McKay (who was station manager when Griffith left) speaks highly of Griffith, telling the Guardian, "Leslie worked here for a number of years and did a fantastic job."

McKay said he didn’t know about any contact from Ringling Bros. or Griffith being told to back off the circus stories (he said he would check and get back to us, but didn’t as of press time), saying only, "We stand behind the stories as they aired. There was a whole lot of attention given to their accuracy."

But it’s clear that Ringling Bros. was aware of and upset by Griffith’s work. In 2005 Ringling Bros. attorneys argued in court against efforts by the ASPCA and the other lawsuit plaintiffs to obtain financial records and veterinary records on the Ringling elephants, telling the judge: "To shovel this stuff into the public record and try to draw inferences from it, or put it in out of context, lends itself to all sorts of abuse, the very kind of abuse that we contend took place on the San Francisco television station last week."

Judge Emmet G. Sullivan ordered Ringling to turn over the documents, but kept many (mostly the financial documents) under protective seal, keeping their contents hidden from the public.

Griffith, who won dozens of major journalism awards over her 25-year career, says the public suffers when journalists are muzzled. "If they took anything from me," she said, "it was my bully pulpit."

ELEPHANTS AND TB

If Griffith still had that bully pulpit and the ability to freely use it, she told us she’d be talking about mycobacterium tuberculosis in elephants. After doing extensive research into the issue — interviewing top experts and traveling across the country to review voluminous court files — Griffith has come to believe Ringling Bros. Circus poses a serious threat to public health.

"You can talk about the [animal] abuse, but with a worldwide epidemic brewing, I’d say the story is the tuberculosis," Griffith told us. She has been writing periodically on elephants and TB on her blog (lesliegriffithproductions.com), the Huffington Post, and prominent news sites such as Truthout, which published her piece, "The Elephant in the Room," a year ago.

"There are several alarming issues for epidemiologists: drug resistance, inability to diagnose if an elephant has been cured, and disease spreading to handlers who work with them and to the public who attend circus performances," Griffith wrote in the article, relying on public documents and experts on both the circus and infectious disease.

Griffith’s star source has been San Francisco–based epidemiologist Don Francis, who helped discover the HIV virus and became the first director for the Center for Disease Control’s AIDS Laboratory. The Guardian talked to Francis, who has reviewed Ringling documents and concluded that the elephants do indeed pose a threat to public health. He told us he’s particularly troubled by records that appear to show elephants being treated with multiple drugs, meaning they could have multidrug-resistant TB (MDR TB), "which really scares me." Ringling denies that any elephants have MDR TB, for which there is essentially no cure.

But Francis remains concerned. "A trumpeting elephant could definitely aerosolize this stuff," Francis told the Guardian — and that would keep small particles of the virus airborne long enough for them to be inhaled by handlers or circus crowds. Children and those with weak immune systems, such as people with HIV, would be especially susceptible to contracting TB from these particles.

Although Francis said he couldn’t say whether any circus attendees have been infected with TB from elephants — and we’ve been shown no evidence that anyone’s ever contracted TB from attending a circus — he sees no basis for Ringling’s claims that the elephants are safe. "I don’t know that anyone has asked the question. I’m not sure anyone has ever tied it together," Francis said.

Both Griffith and Rider maintain that all of Ringling’s elephants have been exposed to TB at one time or another and that the standard annual process used to test for infection — trunk washing — is inadequate to determine if they are carrying and transmitting the virus.

"Every elephant traveling with Ringling has been exposed to TB, and many of them have TB," Rider, a former Ringling elephant handler, told us.

In fact, Kaplan testified in court that he was asked "to find a physician who would test the people in the circus to see if they had tuberculosis but who would destroy the records and not turn them in to the Centers for Disease Control," as the law requires.

Ringling and USDA documents unearthed by the lawsuits and Freedom of Information Act requests show that at least eight elephants tested positive for TB and that many others have been exposed to them. Ringling veterinarian Danny Graham told the Guardian that two non-traveling elephants are currently being treated for TB, but couldn’t say how many have tested positive in the past.

Yet Ringling officials maintain that active tuberculosis is not a problem in the circus, that their diagnosis and treatment regimens are adequate to protect the health of the elephants, circus employees, and the public, and that no elephants that tested positive for TB have then performed in front of the public.

Graham said the trunk wash, which detects when a TB infection has shed out of the lungs and can be transmitted, is an effective indicator of whether an animal is contagious. "Shedding is when it can be passed to other elephants," she told us. "What our trunk washes look for is a shedding of the bacteria."

Yet Ringling records show at least one case in which the necropsy on a dead elephant, Dolly, showed TB in the lungs even though the trunk wash results were negative.

A Ringling FAQ sheet on "Tuberculosis in Elephants," by Dr. Dennis Schmitt, chair of veterinary services for Ringling’s Center for Elephant Conservation, admits that humans and elephants get the same kind of TB. "However there has been no proven case of tuberculosis bacterium being transmitted from elephants to humans," he writes.

He uses a similarly legalistic, underlined approach on questions of whether humans can contract TB from elephants and whether there have been studies indicating so, saying neither has been "proven." And he flatly denies that any elephants have MDR TB.

Two Ringling officials interviewed by the Guardian — Graham and Janice Aria, director of animal stewardship training — went further than Schmitt and flatly denied that any elephants that tested positive for TB ever performed.

"None of the elephants in our traveling unit have ever tested positive for TB," Aria told the Guardian. "No, none of our traveling elephants have ever tested positive for TB," Graham said in a separate interview.

THE USDA INVESTIGATES

But Ringling veterinary records unearthed in the latest lawsuit cast some doubt on the claims of circus officials. Three of the seven elephants that traveled with Ringling Bros. Blue Unit to Oakland — Juliet, Bonnie, and Kelly Ann — appeared in one redacted veterinary document, marked as exhibit "FELD 0021843."

Kelly Ann’s entry includes this notation: "Moved from CEC to Blue Unit. Just finished TB treatment." Juliet was listed as "currently being treated for presumptive TB" and Bonnie had "blood drawn for Tb Elisa," an expensive TB test that often follows a positive reading in the trunk wash test. Documents connected to a 1999 USDA inspection also list Kelly Ann and "Juliette" among 10 elephants administered drugs for treating TB.

Asked whether Kelly Ann has ever undergone TB treatment and informed of the document, Aria told the Guardian, "From my knowledge, that is not true."

McWethy, the Feld corporate communications manager who arranged and monitored our interviews with Aria and Graham, initially said she was not familiar with the document, and even if she was, "the court requested that the parties not discuss the specifics of the suit." In actuality, the judge has not issued a gag order in the case, and plaintiffs spoke freely about details of the case.

Later, after she reviewed the document at our request, McWethy confirmed that Kelly Ann had been exposed to TB in 1999 and that the circus decided to treat her for the disease. "But she’s never tested positive," McWethy said.

In June 2001, the tuberculosis issue was enough of a concern to the USDA that the agency initiated what one official document called an "investigation regarding allegations that Ringling was using known TB-infected animals in circus performances." But information on the results of that investigation was redacted by the USDA from later documents.

In a 2003 report written by the three plaintiff groups in the latest lawsuit, "Government Sanctioned Abuse: How the United States Department of Agriculture Allows Ringling Bros. Circus to Systematically Mistreat Elephants," they conclude: "Although tuberculosis is an extremely contagious disease, and Ringling’s elephants are publicly exhibited throughout the country, including elephants that go in and out of both the breeding and retirement facilities, the public has been kept completely in the dark about this investigation, the agency’s decision to ‘override’ the conclusions of its own inspectors and investigators, and the reasons this investigation was closed with no further action."

WATCHING THE CIRCUS

Feld — the man and his company — are big contributors to top elected officials of both major parties. Campaign finance records show that since 1999, Feld has given at least $104,900 to Republicans and $35,150 to Democrats on the federal level and in his home state of Maryland.

Benefiting disproportionately from Feld’s largesse are members of the House Agriculture Committee (which oversees the USDA). The contributions include almost $10,000 to former Rep. Richard Pombo (R-Tracy), $6,500 to the campaign and committees of Rep. Bob Goodlatte of Virginia (the committee’s ranking Republican), and $6,500 to Rep. Robin Hayes (R-N.C.). Representatives from the two states where Ringling Bros. bases its animals off-season, Texas and Florida, also took in $13,300 and $28,000 respectively, more than those from other states. Animal welfare advocates say Feld’s wealth, power, and political connections have caused the USDA to go easy on Ringling Bros.

"This cozy relationship between the USDA and Ringling Bros. is going to be exposed during the trial," Tracy Silverman, the attorney for Animal Welfare Institute, told the Guardian.

Plaintiffs will make an example of the death of a four-year-old elephant named Benjamin, who drowned in a Huntsville, Texas, pond July 26, 1999 after refusing to heed trainer Pat Harned’s commands to get out. That death came a year after another baby elephant, two-year-old Kenny, died after being used in three circus performances in one day, despite warnings from veterinarians that he was severely ill.

"The United States Department of Agriculture’s final ‘Report of Investigation’ concerning the incident concluded that Benjamin’s trainer’s use of an ‘ankus’ on Benjamin ‘created behavioral stress and trauma which precipitated in the physical harm and ultimate death of the animal.’ On information and belief, the routine beatings of Benjamin were a contributing factor to his death," the animal welfare groups wrote in the lawsuit.

The USDA investigator recommended Ringling Bros. be charged with vioutf8g the Animal Welfare Act, yet the USDA’s General Counsel’s Office overrode those conclusions and issued its own: "Suddenly, and without any signs of distress or struggle, Benjamin became unconscious and drowned." Ringling and USDA officials say the animal died of a previously undetected cardiac arrhythmia, and the final report omitted any mention of the ankus or behavioral stress.

Animal welfare activists and lawyers say this is just one of many examples of senior USDA officials overriding recommendations of front-line investigators and veterinarians, then blocking access to reports and other evidence that might support or disprove the final conclusions. Indeed, the lawsuit identifies more than a dozen such examples.

USDA spokesperson Jessica Milteer told the Guardian she couldn’t comment on specific examples, but said supervisors are ultimately responsible for interpreting field reports. "Things are pretty much done on a case-by-case basis. We try to work with a facility to come into compliance."

But she said that it’s not true the USDA goes easy on Ringling Bros. because of its power or political connections. She said there are currently two open investigations into Ringling Bros. (she would not provide details) and that facilities like Ringling get annual inspections unless they’re found to have problems or risk factors.

"Since 2005 Ringling has been inspected 52 times," Milteer said, indicating the USDA is indeed concerned about some of the things it has observed at Ringling Bros.

USE OR ABUSE?

Aria, the Ringling trainer, said banning the use of the ankus "would not allow elephants to travel anymore." Feld and other top officials have made similar public statements. She bristled when hearing the ankus referred to as a bull hook. "We call them guides," she told the Guardian. "It is used to reinforce a verbal cue."

Aria and McWethy dismissed videos that appear to show handlers inflicting violent blows on elephants, saying they are often selectively edited and spliced in with footage of non-Ringling elephants and handlers. Activists insist this isn’t true and that much of the footage clearly shows abuse at Ringling Bros. For example, one video shows a person identified as a Ringling Bros. elephant handler striking violently at an elephant after saying on camera that he never does so. Another shows Ringling elephants being paraded through a town and one slow elephant being sometimes pulled along by an ankus behind the ear, with a closeup then showing a bloody puncture wound in the spot.

"From the videos I have seen, so much of it is repackaged and old stuff that doesn’t apply to us at all, not at all," Aria told us.

Graham, who worked for Ringling for the two years she has been a veterinarian and who interned with the circus before that, said she visits the elephants at least once a week and "I have never seen a trainer use an ankus inappropriately." Further, she said, she has never seen an injury she thinks was caused by the ankus: "If I see anything, it’s generally superficial abrasions."

Rider and animal welfare activists say the hook on the ankus is used to inflict pain on the sensitive parts of an elephant, mostly behind their ears or on the backs of their legs, as a negative stimulus to encourage the animals to perform tricks or obey commends. If it was simply a "guide," they say, it wouldn’t need a hook.

But Aria said the ankus is akin to a leash, a means of keeping the elephants near them. "It’s a ‘come-to-me’ cue," she told us. "This comes from decades and decades of use."

Sorting out whether such traditions are actually a form of animal abuse is the purpose of the fall trial.

"The circus is really good at creating the illusion of the happy performing elephants," Kathy Meyer, an ASPCA attorney who has been handling the case from the beginning eight years ago, told us. But she said that it’s clear from the documents, videos, testimony, and common sense that the ankus is often used to inflict pain, which is prohibited under federal animal welfare rules, particularly those governing endangered species, which allow Ringling to have elephants only for conservation reasons.

"So we’re asking the judge to enjoin them to stop them from using these practices," she said.

Many veterinarians and wildlife experts agree that it’s not possible for elephants performing in circuses to be treated humanely. The Amboseli Trust for Elephants last year released a letter signed by 14 leading elephant researchers, with almost 300 years of combined experience working with elephants in the wild, arguing for an end to the practice.

"It is our considered opinion that elephants should not be used in circuses. Elephants in the wild roam over large areas and move considerable distances each day. They are intelligent, highly social animals with a complex system of communication…. Elephants in circuses are bought and sold, separated from companions, confined, chained, and forced to stand for hours and frequently moved about in small compartments on trains or trucks. They are required to perform behaviors never seen in nature," they wrote.

Aria said she didn’t agree with those conclusions, saying she looks out her office window every day: "I see elephants and get to see them all day doing the most amazingly athletic things." And she said only those with a propensity to perform are taken on the road, which is about one-third of their 53 elephants. "You can separate the ones who want to do it from the ones who don’t want to do it," said Aria, who joined Ringling Bros. as a clown in 1972. Later, she earned a bachelor’s degree in special education and worked as a teacher during the ’90s. She was named to her current post in 2006.

"All the elephants here are happy and thriving," Aria said, noting there are only about 35,000 Asian elephants still alive and that many, in places like Sri Lanka where she has visited, are regularly abused and killed. "Good for the Feld family that they support elephants from their births to their deaths."

PRESERVATION OR EXPLOITATION?

The path to the courthouse has been long and difficult, with Feld getting a similar earlier case dismissed and this one moving to trial only after threats and stern warnings by Judge Sullivan against any more stall tactics by the defendants.

"It’s been very difficult to get to this point," Meyer, the ASPCA lawyer, said, adding that that just being able to have their day in court is already a huge victory. "To have this issue aired in a public forum will be helpful for educating the public."

Silverman said she was most shocked by documents obtained by the plaintiffs — and introduced as part of the case — showing elephants chained up to 100 hours at a time, for an average of 26 hours when traveling between shows. "In no way did I imagine the bulk of the evidence that would support our claims," Silverman said. "These animals live their lives in chains."

In addition, many members of the public might not be aware that Ringling Bros. obtains its elephants under the Endangered Species Act for the purpose of protecting and propagating an endangered species, and the ESA contains strict rules against physical abuse of those animals.

"There’s no humane way to have a circus with elephants because it has to travel year-round," Rider told the Guardian. "If you take away the chains and the bull hooks, an elephant isn’t going to do anything."

Rider, who worked with Ringling elephants for more than two years, "saw several of the other elephant handlers and ‘trainers’ routinely beat the elephants, including baby elephants, and he saw then routinely hit and wound the elephants with sharp bull hooks," according to the lawsuit.

Ringling officials such a trainer Aria contend the elephants are well-cared for. Yet she also admits that the elephants are the key to the Felds’ lucrative business empire.

"They are our flagship animal," Aria said. "People come to the circus to see the elephants."

As such, a ruling that goes against Ringling could financially cripple the company, which is why animal welfare advocates say Feld has taken such an aggressive stance with his critics, harassing, threatening, and sabotaging them. As Silverman said, "You see that with Leslie Griffith, and it’s that kind of thing that they do all over the country."

Goat Hill Pizza

August 12, 2008

› paulr@sfbg.com

While the denizens of Washington, DC must nourish themselves with Capitol Hill Blue, we of the Blessed Realm have easy access to Goat Hill Pizza, and although there aren’t any goats on Potrero Hill any more, in blue or any other color, the views are still magical, the pizza is pretty good, and a longtime spirit of San Francisco abides, despite the passing of a third of a century and the ebb and flow of various funny-money economic tides.

Goat Hill is more than a pizzeria with a view (though a better view you won’t easily find), more than a place long famed for its Monday night, all-you-can-eat pizza dim sum extravaganza (though a better deal you won’t easily find): it’s a kind of community center, a locus of mingling, with the restaurant’s co-owner, Philip De Andrade, serving as mingler-in-chief as he moves from table to table, chatting and checking. The restaurant’s long walls are regularly hung with paintings for sale, and, on certain warm weekend afternoons, the place becomes a kind of art gallery that smells of linguica and cheap red wine — just the sort of environment in which to stumble across a surviving Beat writer or unheralded master painter.

Goat Hill is a still-glowing ember of a bohemian San Francisco where life’s riches were enjoyed but neither obsessed over nor paraded as status symbols. If, in a sense, it’s an ambassador from the past, it’s an envoy that’s survived a host of Bible-worthy plagues, from earthquake, disease, and fire to the dot-com boom-bust (in with the Porsches, out with the Porsches!) and the long adventure in misrule that began with a stolen election and will eternally bear the name of the unbearable George W. Bush. The little man will be gone soon, holding hands with Dick Cheney in one of their undisclosed locations while Mesopotamia burns, but Goat Hill will still be there, packing them in on Monday nights.

While a wait for a table is generally an annoyance for people who are hungry to eat dinner, the Monday-night wait at Goat Hill is rather festive, especially in mild weather. Clots of people loiter on the sidewalk and in the street near the door, chatting and flirting and occasionally taking the long view down the slope of Connecticut Street to the city’s luminous skyline, which seems close enough to touch. Of all the skyline views I’ve observed over the years, only those on the eastern slopes of Russian Hill are the equal of those on the north face of Potrero. With a view like that, who needs food? And yet, from time to time, the host does emerge from the restaurant to call out a name, and a party of people — maybe a twosome, but just as likely a sixsome or even more — eagerly marches inside.

The dim sum comparison is as old as time, but it isn’t quite apposite. (Visitors to Goat Hill’s arriviste location in the SoMa flatlands will find the all-you-can-eat deal in effect every day.) Whenever I’ve had actual dim sum at a Chinese place, the servers check off little boxes on a tab when we’ve chosen items to eat, so the final bill varies. At Goat Hill, you pay a flat fee (at the moment $10.95 per head), which buys you unlimited access to the salad bar along with unlimited access to the pies that emerge regularly from the kitchen. A pie arrives; its topping is announced, and, as at a Sotheby’s auction, you point or mumble or in some other way indicate an interest, and you are given a slice. But step lively, because the next pie could be just seconds behind. Or, minutes might elapse, an interval in which you can thoughtfully chew your crust rinds. Some of these can look a little scorched.

The toppings themselves show signs of being drawn from the culinary equivalent of an auto dealership’s parts bin. There’s pepperoni, of course, and also pepperoni with sausage, and sausage with mushroom. (No pepperoni with mushroom.) How about ground beef with green onions ("Italian hamburger"), or spinach with tomato and feta cheese, or chicken with sun-dried tomatoes? Green bell pepper makes repeated appearances, as does pineapple, with ham or with sausage, with or without chunks of jalapeño pepper.

Linguica — the garlicky Portuguese sausage — is underrated as a pizza topping; its flavor is every bit as potent as pepperoni’s, but (at least at Goat Hill) it’s richer and less salty. This last is always an important consideration for the pizza eater who is beyond 30 years of age. I love pizza, and I retain an affection for the sort of pizza gluttony Goat Hill enables, but the older you get, the more likely you are to be sorry the next day not to have exercised more restraint in enjoying your pizza. (The pizza crusts, incidentally, are sourdough and find a nice middle ground between crackery and bready, but the rinds nonetheless have a way of piling on paper plates around the tables. Only across the way, at a table filled with avid men in their 20s, did I notice the crust rinds being efficiently dispatched. It was like watching bright-eyed jackals polish off a wildebeest carcass, bones and all.)

The salad bar, amid all this crust, is not an afterthought. Although it has the look of something you’d find at Howard Johnson’s, complete with sneeze shield, it does offer a broad range of non-bloating items, including kidney beans and chickpeas, tomato slices, mushrooms, lettuce, grated cheese, beets, pepperoncini, and, of course, choice of dressing, to be ladled from big crocks. There’s even a view, at no extra charge.

GOAT HILL PIZZA

Sun.–Thurs., 11:30 a.m.–10:30 p.m.; Fri.–Sat., 11:30 a.m.–11 p.m.

300 Connecticut, SF

(415) 641-1440

www.goathill.com

Beer and wine

AE/DC/DISC/MC/V

Noise does not preclude conversation

Wheelchair accessible

SFPUC shuffle

August 6, 2008

› sarah@sfbg.com

The San Francisco Public Utilities Commission is arguably the city’s most important commission. It provides water to 1.6 million customers in three Bay Area counties and handles sewage treatment and municipal power for San Francisco. But right now, it lacks a governing body.

Until recently there were no minimum job requirements for its five commissioners, who are all appointees. The only way the Board of Supervisors could block the mayor’s picks for these all-important posts was through a two-thirds vote (that requires eight supervisors) made within 30 days of the selection.

That changed June 3 when voters approved Proposition E. The board placed this legislation on the ballot in response to Mayor Gavin Newsom’s "without cause" firing of SFPUC former General Manager Susan Leal last year, and his reappointment this spring of Commissioner Dick Sklar, a former SFPUC general manager whose anti–public power tirades and rudeness to SFPUC staff was at odds with the goals and values of the board’s majority.

Prop. E’s passage required that the current SFPUC be disbanded by Aug. 1, set minimum qualifications for future nominees, and stipulated that new commissioners cannot take office until at least six supervisors confirm the mayor’s picks.

Newsom responded by renominating Sklar, along with two other incumbents—former PUC President Ann Moller Caen, and F.X. Crowley, who works for the International Alliance of Theatrical Stage Employees.

Newsom also nominated two newcomers — Nora Vargas, executive director of the Latino Affairs Forum, a statewide nonprofit advocacy group, and Jell-O heiress Francesca Vietor, director of the city’s Department of the Environment from 1999 to 2001.

Kicked to the curb in this preliminary shuffle was David Hochschild, a solar advocate who steered the SFPUC away from building peaker plants and toward retrofitting the aging Mirant power plant. Also ousted was E. Dennis Normandy, whom Mayor Frank Jordan appointed in 1994.

On July 29, the board unanimously approved Caen and Crowley, and seemed inclined to favor Vietor, though she has yet to appear before them to answer questions.

But they rejected Vargas after Sups. Tom Ammiano, Chris Daly, and Bevan Dufty expressed misgivings about her lack of experience with local politics and the SFPUC, not to mention concerns about the $150,000 worth of community grants PG&E gave to Vargas’ Latino Issues Forum between 2004 and 2006.

And Sklar withdrew his nomination before the board could vote on it, apparently aware that the seven votes against his nomination last time meant he was destined to fall short of the new requirement.

These initial changes have led Leal to believe that Prop. E is already having the desired effect. "The rules before meant that the supervisors had 30 days to come up with eight votes, and that’s a very tough thing to do," Leal told the Guardian. "The fact that Dick Sklar had to get six votes, when he barely got four votes in February, is why he withdrew his name. And if you look at the way the supervisors handled the process last time around, this time they seem more vested in it."

Newsom has not yet forwarded any more picks to the Board, so the makeup of the body that will govern the SFPUC until August 2012 is still undecided. But it’s likely that the first matter of business for the new SFPUC will be responding to board recommendations that are sure to flow from an August hearing into CH2M Hill’s study on the feasibility of retrofitting Mirant’s Potrero units 4, 5, and 6.

Leal believes the retrofit plan is "sketchy at best."

"I think that trying to retrofit a 1973 plant is like one former PUC commissioner thinking you can repair the 50-year-old digesters out at the southeast wastewater treatment plant," Leal told the Guardian, referring to Sklar’s equally unpopular attempt to block a costly but necessary rebuild of the SFPUC’s sewage digesters.

"To me, this is Mirant and PG&E still deciding whether there will be something polluting in the air," Leal added.

On July 22, at its last meeting before being disbanded, the Sklar-led SFPUC voted to rescind its former plan to build a new peaker power plant in the city’s southeast sector, and to instead pursue the Mirant retrofit.

Sup. Bevan Dufty notes that a retrofit of this kind "hasn’t been done anywhere else in the world." Board President Aaron Peskin observes that, "unlike the peaker plan, which was subjected to thousands of pages of analysis, the retrofit plan was cooked up behind closed doors with no public hearings."

Noting that Mirant only needs a building permit to keep operating at the site, Peskin says that is why he joined Sups. Sophie Maxwell, Jake McGoldrick, and Dufty in introducing legislation to require conditional use permits of future power plants.

"ATM machines, bakeries, and restaurants need conditional uses, so why not power plants?" Peskin said.

Sup. Ross Mirkarimi believes the peakers and retrofit are competing as the lesser of two evils, which is one reason why he and Ammiano wrote the fall ballot measure called the Clean Energy Act, which would create ambitious goals for renewable power. Mirkarimi told us, "There needs to be a robust campaign for a third plan that combines a transmission-only mandate and a strong renewable energy mechanism that compensates for the Mirant shutdown."

Charitable cash cow

August 6, 2008

› gwschulz@sfbg.com

Nonprofit charities in the Golden State should have been raking in the cash in 2004. Gracious Californians gave $60 million more toward fundraising campaigns that year than they did in 2003, totaling almost $293 million. The following year, donors gave even more: $332 million.

Yet despite the increasing generosity of Californians, the percentage that nonprofits actually took away from those campaigns steadily decreased from 2003 to 2005.

Most of the gains went to private, for-profit fundraising companies hired to conduct telemarketing services and coordinate special benefit events like gala dinners, rodeos, and variety shows.

Such companies charge steep fees and commissions that frequently leave charities, especially smaller or less experienced ones, with little or even nothing at all, according to state disclosure records.

Commercial fundraisers collect millions each year relying on the public image of selflessness projected by nonprofits devoted to promoting cultural literacy, saving lost or exploited children, finding cures for deadly diseases, or improving the welfare of defenseless animals.

Some desperate nonprofits elect to allow commercial fundraisers to take a percentage of the money they raise, at times as much as 80 to 90 percent. Alternately, larger charities may agree to set costs and fees associated with the campaign, but that strategy can also prove costly.

For example, the San Francisco Museum of Modern Art hired the Los Angeles company SD&A Teleservices in 2004 for a phone solicitation campaign that raised $12,000. But because the company’s fees were greater than the contributions received, the museum had to pay $19,854 more to cover the venture. Similarly, the San Francisco Ballet lost $3,400 in 2005 to the same company after SD&A raised $12,745 from donors, thousands less than what it charged.

Several people we interviewed said the benefits of a fundraising campaign might not materialize until later if contributors eventually become long-term supporters. But unless the typical donor has time to find out how much ultimately makes it to the cause they care so much about, they’re unlikely to be aware of the extraordinary costs involved in nonprofit fundraising.

"The charity agrees to it because they want the easy money that they don’t have to do any work for," Daniel Borochoff, president of the American Institute of Philanthropy in Chicago, told the Guardian. "Then the person goes out and spends $1 million to get that $200,000, and the charity tries to rationalize it by saying ‘Well, it’s money we wouldn’t normally have. We don’t have staffing for fundraising.’ But they’re ripping off the public and disrespecting the intentions of the people who gave that money."

The Los Angeles Times published a months-long investigation July 6 that examined required forms submitted to the California Attorney General’s Office showing the total revenue generated from 5,800 nonprofit fundraising campaigns and how much of that money went to the charities.

Between 1997 and 2006, the paper discovered, 430 campaigns raised a total of $44 million — but in each case, every dime went to the fundraising company. Charities lost money in 337 more cases. In hundreds of instances, charities entered into contracts that assured them only 20 percent or less of the funds raised, regardless of how successful the campaign turned out to be. The AIP recommends spending no more than 35 cents on each dollar raised. The Times also pointed out that donors enjoy tax deductions from their contributions, even if huge portions go to for-profit companies.

"Nonprofits spend a lot of money attracting donors and then they fall away the next year, so they have to reach out and attract even more donors," Elizabeth Boris, director of the Center on Nonprofits and Philanthropy in Washington, DC, told us. "So there’s a lot of churning that goes on, because a lot of the same people don’t give to the same organization year after year. It is an expensive process of getting the names and contacting people."

Because California is behind in processing the required disclosure forms, the Times had to specially request records from 2006, meaning more recent figures aren’t available. The Guardian took a far less extensive look at the records, but we still found plenty of examples of charities earning astonishingly low rates of return.

In 2004, Campbell-based TBS Productions raised $418,377 for the San Francisco Police Officers Association and its annual "Parade of Stars" event held at the Palace of Fine Arts. But just $87,094 made it into the union’s nonprofit Community Services Fund, which redistributes it in small increments to a variety of causes.

"I’ve wrestled with this since I’ve come on," said POA President Gary Delagnes. "There are two ways of looking at it. Do we really want to lend our name to an outfit that’s taking 80 percent off the top? … The decision we made was: you know what, we’re to do so much good with the charitable money that it’s worth it to us."

That same year the Oakland Police Officers Association also hired TBS for its "Cavalcade of Stars" event. The company raised $402,515 on behalf of the East Bay union for charitable purposes, but only $88,603 remained after covering the event’s costs, a return to the union of 22 cents on the dollar.

That year, TBS coordinated events for at least 16 groups across the state representing law enforcement and emergency personnel, from the San Jose Firefighters Burn Foundation to the Fresno Deputy Sheriffs Association. But almost no one received a better return rate than 20 percent, and two raised just 15 cents on the dollar after accounting for the for-profit company’s take. No one at TBS was available for comment when we called.

More than 250 fundraising campaigns in California netted 20 cents or less from each dollar raised for charities in 2004, according to figures maintained by the state.

Rich Steinberg, a longtime scholar of nonprofits at Indiana University, said several factors mitigate all this. He explained that the United States Supreme Court has been reluctant to permit heavy regulations on charity fundraising because a seemingly poor cost ratio isn’t necessarily bad for a nonprofit.

"Big charities could do everything wrong but still have a good cost ratio" because their support is widespread, Steinberg said. The San Francisco Ballet and SFMOMA, for example, have done much better in some telemarketing campaigns, earning from 54 percent to 81 percent in return rates despite other times losing money.

Could it be that there are too many small, inefficient nonprofits with similar missions, each created in the belief that government wasn’t filling some need? Perhaps. But attempting to curtail them could undermine the democratic spirit that leads to their creation.

"We should make it legitimate for any group of idiots to get together and try to do something good," Steinberg said.

If they want to succeed, he said, charities should not accept terms that give fundraisers a percentage of the donations. Instead they should establish fixed fees so that every dollar beyond that amount goes toward services. Second, to ensure more favorable rates, they can require competitive bidding among fundraisers.

Ken Larson, director of public policy for the California Association of Nonprofits, said that few of the tens of thousands of charitable organizations registered in California use commercial fundraisers to attract donors, a fact confirmed in reports compiled by the attorney general. Many hire full-time professional fundraisers to seek foundation and government grants or relationships with repeat donors, intangible benefits that can go beyond immediate fundraising goals.

As for telemarketing, Mike Smith, chief operating officer of New Jersey-based Charity Navigator, suggests that when donors receive a call, they can just hang up and cut a check directly to the nonprofit.

The debate over nonprofit fundraising costs is nothing new, but with information increasingly available on the Web, consumers are in a much stronger position to give wisely.

The San Francisco AIDS Foundation publicly and angrily parted ways with its commercial fundraiser, Pallatto Teamworks, in 2001 due in part to a dispute over how much the company charged to operate the California AIDS Ride. The charity has since created its own fundraising arm, steadily improving its rate of return from an average of 54 percent over the past seven years to 66.5 percent last year.

The foundation uses another company, MZA Events, to manage its annual AIDS Walkathon, which has averaged a healthy 63 percent return since 1999 with improved results over each of the last three years.

But officials with the SF AIDS Foundation believe telemarketing has enabled it to achieve greater public awareness. It also began moving the task in-house during the past six months and anticipates greater savings.

"Every dime we save in production is a dime that can go to our clients and our programs and our services," said Dave Ellison, spokesperson for the foundation. "We’re always extremely aware of how important it is to keep the costs down because we see the benefits every day in the lives of our clients."

Cash from cabbies

August 6, 2008

› news@sfbg.com

The largest taxicab company in San Francisco is trying to squeeze more money from its drivers, who say they’re already being hit hard by increased gate fees and rising fuel costs.

Yellow Cab has ordered its drivers to prepay for the privilege of driving each month, amounting to thousands of dollars for full-time drivers. Compounding that financial hardship is the apparent intention of the company to use prepaid gate fees to change the employment status of its drivers from employees to independent contractors who are no longer entitled to unemployment insurance and workers’ compensation coverage.

While local officials say Yellow Cab’s new policy is illegal, they have little power to compel the company to abandon the plan, which was supposed to go into effect Aug. 15 but has now been moved to December under pressure from city officials and the United Taxicab Workers union. Drivers are also threatening to bring legal action to stop Yellow Cab, relying on a past ruling barring the company from requiring deposits from its drivers and misclassifying drivers as independent contractors.

Repeated attempts by the Guardian to contact Yellow Cab representatives were unanswered, but they had to talk to Jordanna Thigpen, executive director of the San Francisco Taxicab Commission. She found Yellow Cab’s prepayment plan to be in violation of the Superior Court’s decision. "I was not persuaded that the prepayment was not a deposit," Thigpen told the Guardian. "What they are actually doing is asking for a security deposit again under the guise of an Employment Development Department requirement. But the EDD guidelines are just that — guidelines."

The EDD sets work rules and standards in California. According to its Taxicab Industry information sheet, taxi drivers classified as independent contractors "prepay to lease a taxicab for a period of at least 28 days." Yellow Cab used the line, which is posted prominently for employees to see, to justify requiring that all its drivers prepay up to $1,930.

Bud Hazelkorn, cab driver and chairperson of United Taxicab Workers, said UTW has "been talking to an attorney and hopes to bring an injunction against Yellow Cab." He takes little hope from Yellow Cab’s recent decision to push its prepayment deadline from Aug. 15 to December, though he does think it was a response to the UTW’s outcry.

For Hazelkorn, it matters little whether the deadline is a week or six months from now. "Any kind of prepayment policy is against the Tracy decision," he said. "They are trying to make themselves look better by pushing back the deadline. But the fact is that Yellow Cab wants to establish a precedent of prepayment and that is illegal."

The 1996 ruling in Joseph Tracy vs. Yellow Cab barred cab companies from demanding security deposits from drivers. The order, issued by Judge William Cahill of the San Francisco Superior Court, "permanently enjoins the defendant [Yellow Cab], from classifying plaintiffs and similarly situated drivers as independent contractors for purpose of denying such drivers any benefit under California law with respect to workers’ compensation, unemployment insurance, and paying a cash bond to defendants as a condition of driving a taxicab."

The 1996 case also found that Yellow Cab drivers were being unlawfully misclassified as independent contractors, and ruled that the necessary control Yellow Cab exercises over its drivers requires that they be considered employees. For example, drivers have no control over the amount charged to passengers in fares, and often rely on dispatchers to notify them of potential customers. In addition, Yellow Cab keeps personnel files on each of its drivers, conducts orientation programs for new hires, and does not allow its drivers to advertise their services. The Superior Court also found drivers to be "an integral part of [Yellow Cab’s] business," further solidifying cab drivers’ status as employees.

Yellow Cab driver John Han explained that the prepayment fee is based on the number of shifts a driver works. He offered himself as an example: Han works eight shifts per month. Multiplied by the average daily gate fee of $96.50, Han’s prepayment equals $772. Since Han said that cab drivers make between $100–<\d>$150 per day, most of his earnings are eaten up by the end of his shift — or before the shift even begins.

To coax its drivers into compliance, Yellow Cab posted a sign in its San Francisco office that reads, "Do not delay in completing your prepayment or you will be subject to being held out of service." Han says that being held out is equivalent to being a benched baseball player who is technically still on the team.

"We won’t be fired, but we will be prevented from being able to work," Han said, noting that such threats constitute the exercise of control over the drivers by Yellow Cab. "Forcing drivers to do anything is having control over its workers, which is a employer-employee relationship."

EDD spokesperson John Stroot told the Guardian that the information sheet Yellow Cab uses to justify this policy does not compel companies to do anything new. What it does contain are guidelines for different taxicab business models: one for companies that have employees and another for companies that use independent contractors.

"These are not laws," Stroot said. "Cab companies can operate any way they choose. They are just guidelines for companies to follow to figure wage, hour, and tax issues." If Yellow Cab wanted to make drivers independent contractors, it would have to fulfill all requirements on the sheet, not just the one specifying prepayment. For example, drivers would be required to perform their business without any form of control from Yellow Cab, including foregoing the use of Yellow Cab’s dispatch services. But Stroot said most drivers are employees under common law in California "because the company directs and controls the way drivers provide their services."

Misclassifying employees as independent contractors has become a national issue, particularly after Rep. Lynn Woolsey (D-Marin County) and Rep. Rob Andrews (D-N.J.) introduced a bill intended to crack down on the practice. If passed, the bill would impose penalties on employers who misclassify employees and inform workers of their right to challenge that classification. The bill also would require state unemployment insurance agencies to conduct audits to identify employers guilty of employee misclassification. In addition, the Department of Labor would be required to perform targeted audits of employers in some industries.

The UTW is currently working with Thigpen and Sup. Chris Daly’s office to achieve some form of justice for drivers. "My office is very concerned by this policy," Thigpen said. "It couldn’t have happened at a worse time for drivers. These guys are good people, and they work hard every day." Thigpen said Taxi Commission member Tom Oneto asked her to draft new rules that would apply to such policies. Other than imposing fines and revoking permits, however, there is little her office can do.

"We need serious overhaul of our penalties," Thigpen said. "Right now I can only charge them $25 in fines, which is pathetic. They know they are breaking the law and ripping people off. But how do you begin?" she asked. "We need to get legislation passed that would overhaul the rules." The strongest weapon city officials have against Yellow Cab is to seek an injunction. "Only the courts can decide if this is legal," Thigpen said.

Thigpen and Oneto met July 25 with Lena Gomes, one of Daly’s legislative assistants, to discuss how the Board of Supervisors might take action. "We are creating a resolution urging Yellow Cab not to charge the drivers the fee," Gomes told us. "Yellow Cab appears to be trying to change their drivers classification to avoid certain financial responsibilities. This is one of their strategies."

If Yellow Cab succeeds in its plan, other cab companies may follow suit. "Right now they’re just hanging back to see what Yellow Cab will do," said Han, who estimates that Yellow Cab stands to gain at least $2 million per year from this policy. For Han, not knowing what the company will do with the money is unnerving. "They should be investing it in a health care plan for drivers. But I can only assume the money will be used to buy a sailboat for the top management."

While Hazelkorn said that drivers are "100 percent opposed to this kind of extortion," some disagree. Tariq Mehmood, a Yellow Cab driver for eight years, believes most drivers would rather be independent contractors "because of the freedom it provides us to set our own hours." Mehmood said the UTW’s fight against Yellow Cab is just another ploy to bankrupt the company, which "would be devastating to drivers. I would love to not pay anything — not even gate fees — and still be an independent contractor, but that’s not the reality."

Regardless of how they feel about the policy, some have already begun making payments, while others are quietly saving money just in case. Han refuses to do either, hoping that Yellow Cab can be defeated if enough drivers join him. But 80 to 90 percent of Yellow Cab drivers are immigrants, Han points out, and many are still unacquainted with their rights. "They are afraid to defy the company," he said. "Yellow Cab is setting a trap for those who will fall for it."

Lennar’s lawsuits

July 29, 2008

› sarah@sfbg.com

Two years after Lennar Corp. reported that asbestos dust had neither been monitored nor controlled during major grading and earthmoving operations on its Parcel A construction site on Hunters Point Shipyard last year (see "The corporation that ate San Francisco," 3/14/08), the fallout from these failures continues.

On June 19 a dozen Bayview–Hunters Point residents and workers sued Lennar, as well as international environmental consultant CH2M Hill and Sacramento-based engineering consultant Gordon N. Ball, in Superior Court on behalf of their preschool and school-age children. The parents allege that their children suffered headaches, skin rashes, and respiratory ailments during Parcel A excavations, which occurred next to a predominantly African American and Latino community.

The plaintiffs charge Lennar, CH2M Hill, and Ball with public nuisance, negligence, environmental racism, intentional infliction of emotional distress, and battery. They are asking for monetary damages, a jury trial, and court costs.

But Lennar is apparently seeking to deflect the blame for these problems at the site entirely onto CH2M Hill through a new federal lawsuit, despite revelations in the Guardian (see "Question of intent," 11/28/07) that Lennar reprimanded its own staffer, Gary McIntyre, when he tried to bring Ball to heel for the company’s failure to properly control the toxic asbestos dust.

On June 23, Lennar BVHP LLC sued subcontractor CH2M Hill for negligence, negligent misrepresentation, breach of contract, express indemnity, and unfair business practices in connection with its work on Parcel A.

"Lennar seeks to recover for the significant economic harm it has suffered in addressing the ramifications of CH2’s gross and reckless misconduct in failing to provide competent asbestos air monitoring services for Lennar’s redevelopment of a portion of Hunters Point Shipyard in San Francisco," states the suit, which seeks damages, restitution and indemnity, attorney fees, court costs, and a jury trial.

"Lennar’s economic harm vastly exceeds $75,000," the suit notes. "CH2 has provided no compensation to Lennar and no other relief for its failures. Indeed, CH2 has never publicly acknowledged its clear responsibility for these failures."

CH2’s Oakland-based vice president, Udai Singh, who signed a $392,600 contract with Lennar in January 2006 for asbestos dust monitoring services, told the Guardian, "Unfortunately I’m not working on that, so I have no clue what you are talking about.

"I thought I might have seen something about that, but since I have been working mostly on EPA stuff, I haven’t been involved in this one," continued Singh, who has been project manager for remedial projects on Superfund sites for the federal EPA’s Region IX, which includes Arizona, California, Hawaii, and Nevada.

Singh referred us to CH2’s Denver-based counsel Kirby Wright, who referred us to CH2’s public relations director, John Corsi, who did not return the Guardian‘s calls as of press time.

But while Lennar BVHP continues to contract with Gordon N. Ball at the shipyard, local resident Christopher Carpenter has sued the Sacramento-based contractor in Superior Court for whistleblower retaliation, wrongful termination, racial discrimination, and intentional infliction of emotional distress.

As the Guardian reported, ("Green City: Signs of asbestos," 8/29/07), Carpenter was fired shortly after he complained about dust that was kicked up by a Ball backhoe excavating the Parcel A hillside on Oct. 2, 2006.

"Carpenter became surrounded by a cloud of dust that was caused by Gordon Ball’s failure to water the ground prior to commencing grading," the suit alleges, noting that Carpenter complained about Ball’s unsafe and unhealthy working conditions, some of which violated Bay Area Air Quality Management District regulations and the city’s Health Code, before he was fired.

At City Hall, Sup. Sophie Maxwell is seeking to amend the city’s Building Code to require more-stringent dust control measures for demolition and construction projects. (The Building Inspection Commission opposed Maxwell’s proposal in December 2007, in a 4–3 vote).

On July 22, the Board of Supervisors voted unanimously to support Maxwell’s dust legislation.

Meanwhile, the Rev. Christopher Muhammad, who represents the Muhammad University of Islam adjacent to Parcel A, asked the San Francisco Health Commission to investigate why it took until July 14 for the local community to learn of an asbestos-level violation that occurred at Lennar’s Parcel A site just four days before the June 3 election.

Muhammad suspects the infraction was hushed up because Lennar was engaged in the most expensive initiative battle in San Francisco’s history, plunking down a total of $5 million to support the ultimately successful Proposition G, which gives the developer control of Candlestick Point and the shipyard.

Amy Brownell of the Department of Public Health told the Guardian that the violation, which registered at 138,800 structures per cubic meter of air (the city’s work shutdown level is set at 16,000 structures) did not trigger a work suspension because there was no work planned at Lennar’s site May 31 or June 1, which was a weekend.

“The Exiles” on Main Street

July 23, 2008

TAKE ONE For a sharp perspective on Kent Mackenzie’s neglected 1961 classic The Exiles, push aside most contemporary reviews heralding the film’s rerelease. In the spring of 1962, Benjamin Jackson reviewed Mackenzie’s debut feature for Film Quarterly, and began by noting something no one today seems to think worth mentioning: only 28 years before The Exiles came out, the American Indians who starred in the movie weren’t even considered citizens by the US government.

That basic fact should be at the center of any appraisal of The Exiles, and yet, with the exception of Armond White in the New York Press, most 21st-century critics don’t contextualize the racist history and cultural prejudices the film confronts; forces that have since threatened to erase it. Almost 50 years and countless Sundance Film Festivals after Mackenzie’s look at Native American life in the city and off the rez, it’s still — unfortunately — a one-of-a-kind work. Just as Milestone Films’ successful release of Charles Burnett’s 1977 Killer of Sheep exposed American independent cinema’s lack of artistic imagination and societal insight, the return of The Exiles is partly inspired by the utter failure of American filmmakers to follow Mackenzie’s lead.

In Another Country (Vintage), first published one year before The Exiles‘ release, James Baldwin writes of a New York “so familiar and so public that it became, at last, the most despairingly private of cities,” adding: “One was continually being jostled, yet longed, at the same time, for a human touch; and if one was never — it was the general complaint — left alone in New York, one had, still, to fight very hard in order not to perish of loneliness.” The Exiles tracks a similar fight in Los Angeles, as waged by pregnant Yvonne (Yvonne Williams) while her husband Homer (Homer Nish) goes carousing through bars at Third and Main. Mackenzie follows both with a Weegee-like attention to detail that alights on everything from mechanical monkeys that blow bubbles to boisterous queens at a bar.

This major work of American cinema was created from film stock salvaged from a plane crash and short ends from I Love Lucy. Its potent original score of lip-biting rock ‘n’ roll is by the Revels, whose “Comanche” was exploited by Quentin Tarantino in Pulp Fiction. Its restoration is by Ross Lipman, who has also rescued Killer of Sheep and the work of Kenneth Anger. Further credit for The Exiles‘ revival belongs to Thom Andersen, whose 2003 survey Los Angeles Plays Itself first brought the film to the attention of a new generation. One year before Godard’s Vivre sa vie (1963), Mackenzie made an unsentimental movie about a woman who goes to the movies — in fact, The Exiles reaches its midway point just as Yvonne watches an intermission jingle that urges people to raid the concession stand. Both Yvonne’s night and this film’s are far from over. (Johnny Ray Huston)

TAKE TWO One reason we watch film noir is to look at the forgotten city. As American crime pictures got grittier, they stumbled from the plush nightclubs of Gilda (1946) to the sticky bars of Kiss Me Deadly (1955). First shot in 1958, Kent Mackenzie’s The Exiles is set in the same dilapidated Bunker Hill neighborhood valorized by John Fante and Charles Bukowski. Mackenzie’s ethnographic focus on a small group of urbanized American Indians would seem to place his film in a different league, but then many noir films open with statements not so different from his voice-over: “What follows is the authentic account of 12 hours in the lives of a group of Indians who have come to Los Angeles, California.”

Noir comparisons only go so far in elucidating The Exiles‘ enduring appeal. By focusing on a sloshed night-in-the-life of this group, Mackenzie locates urban malcontent rather than inventing it. After the first of many exquisite evening shots of a long-extinct LA funicular, we’re introduced to Yvonne: her moony face is inexpressive, and her voice-over amplifies her solitude in a bustling marketplace. She explains she’s pregnant and is glad to be having the baby away from the reservation, but worries about her husband Homer’s commitment. Homer’s boys’ club favors a Keroauc-ish jive-talk — with disenfranchisement for heritage, they adapt the “wherever I may roam” frontiersman-speak of the hipster.

Mackenzie wasn’t a native Angeleno, much less an American Indian, but his outsider perspective enlarges The Exiles. If the location details in Charles Burnett’s Killer of Sheep seem incidental, here they are part of a broader lyrical-documentary design. The fact that we can make out so many prices — mackerel for 21 cents a pound, gas for 27 cents a gallon — is symptomatic of the characters’ hand-to-mouth milieu and Mackenzie’s aesthetic calculus. The filmmaker’s anachronistic tendency to play the peripheries reaches fullest bloom when Homer burns with unnamed anomie, surrounded by the Café Ritz’s unsavory characters. The moody scene is a vivid if intense evocation of the kind of democratic mixing place Mike Davis eulogizes in his 1990 LA history, City of Quartz (Vintage).

If The Exiles anticipates both Jim Jarmusch (the outsider-as-hipster and jukebox soundtrack) and Gus Van Sant (the bender crawl and the combination of voice-over and neorealism), it’s more a sign of Mackenzie’s intuition than his priorities. The bitter irony of the title is that Mackenzie’s characters are exiles from both the past and the future. The director was well aware of City Hall’s redevelopment slate for Bunker Hill when he framed his long-take vistas. “Time is just time to me,” hep-cat Tommy (Tommy Reynolds) muses on voice-over. “I’m doing it outside, so I can do it inside.” Not so for Mackenzie, a true preservationist whose work has now been treated in kind. (Max Goldberg)

THE EXILES

Aug. 1–7

Castro Theatre

429 Castro, SF

(415) 621-6120

www.castrotheatre.com

The verdict stands

July 22, 2008

› tredmond@sfbg.com

Judge Marla Miller on July 18 rejected attempts by the SF Weekly and its chain owner to overturn the Guardian‘s victory and $16 million jury award in a predatory pricing case.

The ruling marked the end of the first full round of this legal fight and sets the stage for a shift to the California Court of Appeal.

SF Weekly and Village Voice Media had asked Miller to overturn the jury verdict or order a new trial, and the company lawyers spent hours July 8 arguing that the evidence presented in a five-week trial didn’t justify the jury’s decision. They also claimed that Miller had issued improper jury instructions.

Attorneys James Wagstaffe and H. Sinclair Kerr also tried to get the judge to sever the 16-paper chain from the damages part of the case. That would have left the Weekly as the only guilty party. And VVM had admitted that the Weekly has no assets and would be unable to pay the Guardian anywhere near $16 million.

Miller, with little comment, denied both requests.

The defendants have consistently said they plan to appeal.

The case centered around the Guardian‘s charge that the Weekly had for years sold ads below the cost of producing the newspaper for the purpose of injuring the locally owned, independent competitor.

Evidence presented at trial showed that the Weekly had consistently lost money, as much as $2 million a year, since New Times — now known as VVM — bought the paper in 1995.

The evidence also showed that VVM’s executive editor, Michael Lacey, had vowed to put the Guardian out of business, and that Weekly advertising and business staff were instructed to try to take business away from the Guardian, whatever the cost.

And while the VVM lawyers mounted a convoluted legal argument to claim that the parent company wasn’t legally liable for any damages, the trial showed that the senior executives at the Phoenix-based chain were not only aware of the predatory strategy but were active participants in it.

In fact, two senior officers, CFO Jed Brunst and group publisher Scott Tobias, admitted that the SF Weekly would have gone out of business years ago if the chain hadn’t subsidized its operations.

For more details and key documents, go to sfbg.com/lawsuit

Hunting the lord of war

July 22, 2008

› gwschulz@sfbg.com

Accused illegal arms dealer Victor Bout’s long-awaited arrest by Thai police officers March 5 was an important victory against unchecked human rights abuses around the world, and a personal vindication for the San Francisco woman who helped bring Bout to international attention.

Bout arrived at the luxurious Sofitel Hotel in Bangkok believing he was to meet with two senior leaders of the Marxist guerrilla army known as the Revolutionary Armed Forces of Colombia, or FARC. The men, it turned out, were paid informants operating on behalf of US drug enforcement officials.

Through an associate, the 41-year-old Bout allegedly promised to sell the duo large quantities of weapons to continue FARC’s decades-old insurgency against the Colombian government. According to an April federal grand jury indictment filed in New York, the arms included surface-to-air missiles, AK-47s, C-4 explosives, land mines, and even people to help train FARC soldiers in using the weapons.

Among those most relieved — and surprised — at the arrest was a relentlessly determined human rights investigator who lives in San Francisco. Kathi Lynn Austin, 48, has been pursuing the notorious trafficker and war profiteer for more than a decade.

Bout, a former USSR Air Force officer, is widely reputed to be one of the world’s most active criminal arms dealers, perhaps best known for his spectral presence on the African continent. There, he cultivated professional relationships with its litany of brutal dictators and helped fuel some of the most appalling human rights tragedies of the last century.

Austin and other investigators, as well as journalists and law enforcement officials in several countries, say that Bout expertly structured a business empire of shell companies, dubiously licensed cargo planes, and endless arms accumulations from former Soviet stockpiles — all of which were intended to minimize evidence linking his name to illegal weapons dealing.

But the work Austin did to penetrate that shell and expose Bout was so notable and dramatic that Paramount Pictures announced in December 2007 that superstar Angelina Jolie would play her in a drama inspired by Bout’s infamous career.

It’s a stunning achievement for someone who 15 years ago struggled to convince even her colleagues in the human rights community that the end of the Cold War and the globalization of organized crime made nonstate actors like Bout as much of a threat to peace as the tyrannical governments they’d been naming and shaming for years.

"A human rights violation is considered a violation that is carried out by a state actor," Austin told the Guardian. "We were trying to change the whole field of human rights to philosophically say we should be going after these private perpetrators as well."

Austin has helped document Bout’s convoluted network since about 1994, first as a consultant for Human Rights Watch and later as arms and conflict director for the Washington, DC–based Fund for Peace, for which she maintained a San Francisco office, before eventually working for the United Nations.

After returning to San Francisco in June from an 18-month UN mission in East Timor, Austin agreed to talk about her investigations of Bout over several hours of interviews near the North Beach apartment where she’s been holed up writing material for the Paramount script.

Seeing Austin in a crowded coffee shop with clear features and wide, earnest eyes, it’s not easy to imagine her charging through the world’s hellholes: Rwanda, Sierra Leone, Liberia, the Democratic Republic of the Congo, Angola, and other African conflict zones where the UN has imposed longstanding but ineffective arms embargos.

The work of Austin and others repeatedly helped show that death and destruction could continue indefinitely for the right price paid to savvy arms brokers like Bout, while the United States failed to regard the plight of civilian populations across Africa as vital to its interests.

As the world would learn in 2004, even the US military relied on Bout’s planes to conveniently bring its partially privatized war machine down on Iraq, making this story about more than just Bout and his pursuers.

Following Bout’s arrest in Thailand, federal prosecutors here charged him with conspiring to kill US nationals and attempting to illegally acquire anti-aircraft missiles.

In 1997 the United States designated FARC a terrorist group for kidnapping and murdering American citizens in Colombia. US officials also consider Colombia the globe’s largest supplier of cocaine, a trade that’s kept the leftist rebels afloat.

Bout allegedly told DEA informants that an ongoing, violent campaign by the FARC to counter America’s cocaine fumigation efforts in Colombia was his fight, too, and that he could supply the guerrillas with everything they needed.

Days after this story goes to press, however, he’s due for a court hearing in Bangkok, where a judge will decide whether to extradite him to the United States. That means Bout could face a criminal trial on American soil. To Austin, that’s long overdue. She had lost hope that her country would subdue a top-tier enabler of gross human rights violations. A secret sting operation led by American narcotics agents was the last thing Austin believed would lead to Bout’s capture — and for good reason.

She first became aware of his name in 1994, shortly after witnessing one of the brightest moments in contemporary African history. On April 24 of that year, Austin stood near the polling station as Nelson Mandela, a political prisoner of 27 years, marked his ballot in South Africa’s first fully democratic election. She’d been invited to attend after working as a researcher in the Natal province documenting political violence and the apartheid government’s desperate attempts to preserve decades of white control through upheaval and destabilization. No one was sure Mandela would reach the ballot box.

"We got up at three, four in the morning to load a bus," Austin recalls. "Nobody told us exactly where it was. We had to go under cover of darkness. When we got there, he voted just after the sun came up."

The inauguration party weeks later spilled out everywhere in Johannesburg. Austin mingled with foreign journalists and drank champagne. But one of the greatest parties of the century turned glum as vague reports mounted describing trouble in a nearby country, one smaller than Maryland and at the time unknown to most Americans: Rwanda.

"Nothing was really clear. It was all very ambiguous," Austin remembers. "We just kept hearing these reports that 10 Belgian peacekeepers had been killed and the UN was pulling out and people were dying on a massive scale."

The Rwandan genocide would become one of the greatest human atrocities since the Holocaust as extremists from the ethnic Hutu majority massacred at least 800,000 minority Tutsis and Hutu moderates with gruesome efficiency while the world stood by.

As details emerged, Austin raised money in the United States and worked to get to the beleaguered African nation as soon as possible. Meanwhile, a Tutsi-led military offensive defeated the Hutu Power government in the capital city of Kigali by July 1994 and supposedly ended the genocide. But as Austin and others would learn, the violence was far from over.

Hundreds of thousands of refugees streamed toward the eastern border of neighboring Zaire, among them the perpetrators of the genocide. Hidden inside refugee camps, Hutu militias renewed their strength and began amassing weapon caches with the quiet support of Zairian dictator Mobutu Sese Seko.

Austin fearlessly penetrated the militia encampments, persuading exiled Hutu military leaders to disclose how they had obtained antitank grenades and high-caliber ammunition. The list included Col. Théoneste Bagosora, considered to be a chief architect of the genocide. Her trick? Austin told them she was a researcher for the neutral-sounding Institute of Policy Studies — which was technically true — and simply needed to hear their side of the story.

"It was a really treacherous place to be," Austin said. "At the time I appeared young, nonthreatening. I didn’t often say I was with Human Rights Watch…. In any kind of organization, people are motivated by many different things. You find those sources that for some reason or another want to help out or are so ego-driven they don’t think that any information they give to you is going to be used somehow against them."

She also interviewed members of flight crews who gave her information on cargo companies hired by the Mobutu government to secretly supply its Hutu allies with weapons by falsifying official flight plans and end-user certificates, key legal requisites designed to curtail transnational arms shipments.

According to her later Human Rights Watch report, "The militias in these camps have taken control of food distribution, engage in theft, prevent the repatriation of refugees through attacks and intimidation, carry out vigilante killings and mutilations of persons suspected of crimes or of disloyalty … and actively launch cross-border raids."

What didn’t make sense was how the suspected ringleaders of the genocide could obtain weapons despite the return of peacekeepers to the area and an arms embargo on Rwanda imposed by the UN.

CIA investigators later discovered that planes belonging to Bout were involved in supplying the outlaw Hutus, according to Douglas Farah and Stephen Braun’s definitive book on Bout, Merchant of Death: Money, Guns, Planes, and the Man Who Makes War Possible (Wiley, 2007).

Austin also came to that conclusion by the end of an eight-month fact-finding trip to the region carried out in 1994 and 1995. Her findings for Human Rights Watch helped propel her to international notoriety as more NGOs focused on illegal arms flows coming from private brokers.

"The Rwandan genocide was really the watershed, for me and for Bout," Austin said. "In the early years, he’s building his empire and I’m beginning to narrow what I want to investigate. I was becoming more and more convinced that in all the wars I was looking at, it was logistics. It was all about who could bring in the guns, the fuel — keep the war going."

Back then, Bout was still a bit player among many weapons suppliers working on the continent, according to Austin. But he soon did something that would significantly boost his career and help make him what another Bout pursuer once described as "the McDonald’s of arms trafficking." He switched sides and helped the new post-genocide Rwandan leadership topple the neighboring Zairian presidency of Mobutu, Bout’s own longtime client.

Zaire is known today as the Democratic Republic of the Congo. Bout would make yet more money years later aiding another warlord who attempted a violent coup inside the country, Jean-Pierre Bemba. The International Criminal Court last month charged Bemba with mass brutality and rape committed against civilians between 2002 and 2003.

"He [Bout] has no loyalty," a Bout associate told Merchant of Death authors in 2006. "His loyalty is to his balls, his sweet ass, and maybe his wallet."

Probably Bout’s most cynical move occurred in Afghanistan. At the start of his career, in the early 1990s, he allegedly maintained an intimate business relationship with commanders of the Northern Alliance, the tribal army that fought Taliban extremists for years until gaining power in Afghanistan with US help following the Sept. 11 terrorist attacks.

US officials began openly acknowledging in 2005 that Bout earned as much as $50 million also furnishing the Taliban with military equipment during its reign over the country.

Austin’s upbringing is the antithesis of what one might expect from an international human rights investigator. The oldest of five kids, she played guitar in a country-and-western band with the rest of her siblings, embarking on tours throughout the South from their home in Richmond, Va.

"We would play for people who had no money," she said. "We’d camp out for three days just to give them some music."

In the ’60s , the family of Baptists played at small African American churches during the climax of Southern segregation and against the backdrop of racist terror. They defied the neighbors and invited black friends over for dinner or socialized with them publicly. The Austins were largely apolitical, but Kathi says her parents insisted on human decency and encouraged a basic sense of justice and rebellion.

Her exposure to the destitution of many formerly enslaved black families in the South translated seamlessly in her own mind to Africa, a continent that fascinated her. But her understanding of the continent was limited.

"I just wanted to go save Africa one day. It was what I said I wanted to do with my life when I was really young…. I had this kind of missionary zeal, this very naïve, humane impulse."

Few people in her family considered going to college, but Austin hungered for academic achievement, securing a scholarship to the University of Virginia in the late ’70s.

Civil rights turmoil at the school politicized her and transformed her deeply. A model Organization for African Unity held for college students each year at Howard University in Washington, DC had the greatest impact. She attended it devotedly for several years. After competitive debates, politicians, professors, and other experts would speak to the students about Africa’s colonialist history and the anti-Apartheid movement.

"I really began to understand a lot of the underpinnings of what was going on with the African liberation movement in South Africa," she said. "I became engrossed in it and learned a lot intellectually and got a good sense of what I thought."

Austin began to zero in on the Ronald Reagan administration’s agenda of undermining Soviet communist influence in the region. The United States covertly backed the UNITA rebels in Angola against a communist-led liberation movement there, and continued to support the white-dominated and separatist apartheid regime of South Africa.

She wanted to investigate the unsavory relationships Reagan’s White House had developed on the African continent in its crusade to defeat communism during the Cold War. But Austin was aware of only two think tanks in the capital that examined such issues and had a reputation for attracting left-leaning luminaries. One was the nonprofit National Security Archive, a repository of declassified intelligence and foreign policy documents obtained largely through Freedom of Information Act requests.

Headquartered at George Washington University, lawmakers concerned about US covert activities abroad and some of the nation’s best-known journalists, including New Yorker writer Seymour Hersh, palled around at the independent, nongovernmental research library after it was founded in 1985 by a group of muckracking reporters and scholars.

Austin’s internship there in 1988 created a new realm of possibility — solo investigations — and sparked an interest in following the intricate paper trails that accompanied her growing knowledge of Africa’s geopolitical landscape, frequent outbreaks of low-intensity conflicts, and evasive weapons procurers.

But she still had never been to Africa. "That was my big ambition," she said. "If there’s anything about me it’s that I’ve got to see for myself."

As her ties to Washington expanded, she joined a World Bank urban rehabilitation team, writing political and economic background reports on Angola in 1989, believing she could make a difference inside the ill-reputed lender to developing countries.

She didn’t, but it was enough to give her first contact. After that trip to Angola, Austin used her savings to stay behind, joining a UN mission overseeing the withdrawal of Cuban troops above the 19th parallel, who were there as a result of Angola’s years-long civil war. She later went to Mozambique on a MacArthur Foundation grant and interviewed private mercenaries operating there for a report called "Invisible Crimes" that included a simple investigative formula she would employ for years to come: What’s wrong? And who’s doing it?

"Through the years, you realize just what kind of danger she’s in," her sister, Cindi Adkins, said from Virginia. "We would go days, weeks, months without hearing from her. My mom would say, ‘We have to call the Red Cross and see if we can find out that she’s okay.’<0x2009>"

Wanting to escape Washington culture, she moved to North Beach in 1997 after becoming entranced by San Francisco’s slower pace. Between missions, she’d spend full days at Caffe Sapore on Lombard Street writing a book about arms trafficking she’s still working on today.

Stanford University’s Center for African Studies invited her to become a visiting scholar for a year, researching arms proliferation and lecturing students, while the Goldman School of Public Policy at the University of California, Berkeley, did the same thing shortly afterward.

But the San Francisco–based Ploughshares Fund became one of Austin’s biggest supporters, helping her finance the creation of a local arms and conflict office for the Fund for Peace, an antiwar think tank in Washington.

"At that time, one of the areas we did a lot of funding in was the control of small arms and light weapons," said Deborah Bain, Ploughshares’ communications director. "Kathi was someone who did a lot of very courageous work tracking arms flows around the world. We were very impressed with the work she was doing and the kinds of results she was getting."

By then the UN had grown to understand the need for knowledgeable people on the ground who could travel across various war-torn African countries and gather evidence on who was vioutf8g arms embargos and how they were doing it. In the coming years, Austin served as a consultant and official expert on panels that investigated sanctions violations in Liberia, the Congo, Uganda, Burundi, Sudan, and Sierra Leone with teams of other human rights investigators who’d long followed Bout’s operations.

Her ex-boyfriend, Todd Ewing, a foreign economic development specialist and Bay Area native who began dating her in East Africa during the ’90s, described Austin as intense and ambitious. While his own blonde hair and six-foot frame made him conspicuous in the region, he said Austin’s "big brown eyes" and polite manner enabled her to slyly convince gritty characters to talk.

"Her MO at that time would be to just disappear for months [on fact-finding trips]," Ewing said. "I always liked to describe her as a sort of spy for the good guys."

Observers say that history handed the equally ambitious Victor Bout a perfect storm in 1991 at just 24 — an age when many Americans are looking for their first post-collegiate job.

The Soviet empire dissolved that year, ending the Cold War between Russia and the United States. Economic globalization expanded and gave every creative entrepreneur with good connections, criminal or legit, a chance to make a fortune. Aging Cold Warriors in the Beltway during the Bill Clinton era and later in George W. Bush’s cabinet maintained a stark binary ideological view of the world and failed to take seriously the growing threat posed by transnational criminals who had exchanged ideology for profit.

After the Berlin wall fell, corrupt Russian oligarchs infamously plundered the country’s assets as they were privatized following years of state control. Some robbed Russia’s rich oil reserves. Bout sought its military installations and airfields containing rows of cheaply available and unused commercial planes, all essentially abandoned by the central government.

Profiles of Bout put him in Angola — and possibly Mozambique — working as a translator for Russian peacekeepers when the Soviet Union broke up. US officials say Victor Anatolijevitch Bout was born in Dushanbe, Tajikistan, a deeply impoverished former Soviet state, and speaks several languages.

Bout told the New York Times in a rare 2003 interview that he purchased three Antonov aircraft for next to nothing in 1992 and used them to exploit a gap in the transit market, at first ferrying innocuous cargo like flowers from South Africa to the Middle East.

But the mogul quickly fostered connections to old Eastern bloc manufacturing and storage facilities in places like the Ukraine and Bulgaria, which were filled with AK-47s — ubiquitous in the developing world — ammunition, tanks, helicopters, and other military equipment.

Over time, investigators say he erected a complex web of cargo and airline companies designed to throw off suspicion. If one firm faced too much attention from aviation authorities, another was created to hold the assets. Otherwise, bribery, fraud, and forged documents were used, according to a report on Bout created by the US Treasury Department. In many African countries, aviation regulations are weak and international law is rarely enforced.

"Unless confronted with documentary evidence to the contrary, Bout’s associates consistently deny any involvement with Bout himself or playing any role in arms trafficking," the treasury report from 2005 reads.

US officials believed by then that he controlled the largest private fleet of Soviet-era aircraft in the world and employed hundreds of people, overseen partly from a nerve center in the United Arab Emirates, at the time a fast-growing and highly unregulated intercontinental transportation hub east of Saudi Arabia.

The Treasury report and other investigations say Bout became a confidante of the Liberian dictator Charles Taylor, supplying him with gunships and missile launchers. Taylor is currently on trial in the Hague for directing horrifying atrocities in neighboring Sierra Leone, ranging from widespread and extreme sexual violence to drugging and forcing children into combat.

When treasury officials here finally moved to seize Bout’s assets and bar Americans from doing business with him in 2004, they concluded that he had received diamonds extracted from Sierra Leone in exchange for supplying arms to Taylor.

That year saw one of Austin’s boldest attempts to confront the trafficking of illicit goods, on an airport tarmac in the Democratic Republic of the Congo, at that time under its own arms embargo. A UN team Austin worked with uncovered piles of questionable registration records during a surprise inspection of two dozen planes, some of which fit Bout’s profile, as their Russian crews stood by, annoyed.

"I only told one or two high-ranking UN officials to get their permission, so we could be sure it didn’t get leaked out," Austin said. "None of the people involved in the actual inspection knew about it until that morning…. I’m still surprised it was so effective. I’m not sure it would work again."

International aviation rules require pilots to maintain several different types of documents, but the group found that 21 planes had invalid registration papers, two had false airworthiness certificates, and three had no insurance to speak of — telltale signs of smuggling. The group determined that weapons in the area were being exchanged for illegally mined columbite-tantalite, or coltan, a valuable mineral contained in some modern electronic devices such as cell phones.

The revelation led the UN Security Council to place Douglas Mpamo, a prominent alleged Bout manager in the region, on the DRC sanctions list, along with a pair of well-known Bout subsidiaries. With Austin’s help, another reputed top Bout lieutenant named Dimitri Popov made a similar security watch list in the United States.

Meanwhile lower-level bureaucrats in the US State and Treasury departments collected evidence on Bout for years, assisted by Austin, who occasionally met with them to relay information she had gathered on fact-finding missions. She testified to Congress about the proliferation of small arms, too, but after Sept. 11, the White House drifted away from a growing campaign to stop Bout.

"I don’t think the Bush administration should get any credit for the fact that Victor Bout was arrested," Austin said. "I think it has to do with the DEA being insulated from the policy influences of the administration. They kept the case so secret they were able to succeed. In the past, once it became an interagency issue or problem, bureaucratic inertia and turf wars entered in and always raised some obstacle to the actual pursuit of Bout."

Eventually, that bureaucratic inertia began to look like something far more shameful.

On April 26, 2005, several state and federal law enforcement agencies including the FBI, IRS, and Dallas Police Department, raided two homes and an office in Richardson, Texas, looking for evidence that Bout’s tentacles had reached the United States.

The properties belonged to a Syrian-born American citizen named Richard Chichakli, who had served in an aviation regiment of the US Army during the first Gulf War. After being discharged in 1993, Chichakli helped create a free trade zone in the United Arab Emirates.

That’s where Chichakli likely first met Bout. Chichakli later returned to the US and became licensed as an accountant and an expert in military contracting. Officials found records showing that the 49-year-old Chichakli had created American companies connected to Bout.

Also discovered during the raid were wire transfer statements showing hundreds of thousands of dollars at a time moving from Bout-connected companies in the UAE to Chichakli in Texas, and credit card invoices managed by Chichakli listing Bout’s lavish purchases at businesses serving the nouveau riche of Moscow.

The raids were the result of a July 2004 executive order signed by President Bush — who, facing pressure from the UN, authorized the raids and prohibited Americans from doing business with Bout due to his connections to Taylor in Liberia.

The White House’s action came years after Austin and other investigators compiled their own research on Bout’s role in arming African warlords. Thirty companies and four individuals were added to a blocking order as a result. Federal court records from the case include extensive references to UN reports on Bout, including some Austin worked on, like one citing witnesses who saw a Bout-connected plane transporting large volumes of arms and ammunition through a Congolese airport between February and May 2004. Something was finally being done, or so it seemed.

But Austin and her colleagues were furious to learn that the US Defense Department hired Bout’s vast air armada with taxpayer money nearly 200 times in 2004 alone to ferry supplies and construction materials into Baghdad after the start of the Iraq war.

Merchant of Death co-author Braun, a Los Angeles Times national correspondent, reported for the paper in December 2004 that two well-established Bout companies, Air Bas and Irbis, had contracted with the US Air Force and Army as well as private companies like FedEx and Kellogg Brown & Root, the much-maligned former Halliburton subsidiary. The State Department had circulated a list of Bout companies warning its officials not to use them, Braun wrote, but the Pentagon made no similar effort.

A fuel purchase agreement included in Chichakli’s court file shows that the Defense Department used Air Bas "for official government purposes" just nine days after Wisconsin Democratic Sen. Russ Feingold questioned top defense officials, including then–Deputy Secretary of Defense Paul Wolfowitz, about such contracts. But Wolfowitz didn’t acknowledge what he eventually characterized as the "inadvertent" use of Bout’s planes for Feingold until months later.

When Austin delved into the issue in 2005 with fellow Merchant of Death author Farah, a former West African bureau chief for the Washington Post, the pair obtained new information for an article in the New Republic showing that the US military also used Bout-controlled companies during a four-month period in 2005, long after the "inadvertent" contracting had first been publicized.

The discoveries were a major letdown for Austin. She’s discussing with some NGOs the possibility of suing the federal government for vioutf8g its own presidential executive order. But Austin knows that even if Bout lands in a US prison for life, there will be someone else to take his place. It’s already happening, she says. As dark as it sounds, Austin will never have to go without a job.

"I’ve seen so much of the same thing go on year after year," Austin said. "You just have to take it in stride and keep coming back punching and hitting. That’s just the nature of the beast, the nature of the work that I do. You just have to keep going."

Pedal power

July 22, 2008

›steve@sfbg.com

Hundreds of bicyclists invaded City Hall July 21 to demand safer bike routes and decry new bureaucratic delays in environmental review work on the Bicycle Plan, which a judge said the city must complete before it can make any improvements mentioned in the plan, from new lanes to simple racks (see "Stationary biking," 05/16/07).

But they arrived a couple hours too late to change the tenor of a hearing on another priority for car-free advocates: the Sunday Streets proposal by Mayor Gavin Newsom to close the Embarcadero to cars Aug. 31 and Sept. 14, which is being challenged on procedural and economic grounds by Board of Supervisors President Aaron Peskin and conservative supervisors.

Presentations to the board’s Government Audit and Oversight Committee in support of Sunday Streets were overshadowed by a big turnout of merchants from Pier 39 and Fisherman’s Wharf — who have vociferously opposed the proposal, citing concerns about lost business — and labor leaders, who unexpectedly lent their support to Peskin’s play.

"We just don’t want to have a beta test of a new program on one of the busiest days of the year," said Karen Bell, executive director of the Fisherman’s Wharf Community Benefits District. "People want to drive down the Embarcadero. They don’t want to take side streets."

Advocates of the program are resisting Peskin’s effort to postpone the events until after an economic study can be done.

"Every other city that’s tried this has found it has tremendous economic benefits, as well as tremendous health benefits and social benefits," said Andy Thornley, program director for the San Francisco Bicycle Coalition.

The committee moved Peskin’s resolution to the full board with no recommendation after Sups. Sophie Maxwell and Tom Ammiano voiced support for Sunday Streets. It was set to be heard July 22 after Guardian press time, but Mayor’s Office officials said they intend to hold the events as scheduled no matter what the outcome and work with opponents to ease their concerns.

But most cyclists were focused on the Bike Plan, which might not have final approval until late next year, as an afternoon Land Use Committee hearing called by Sup. Gerardo Sandoval revealed.

Bicycle Advisory Committee member Casey Allen called the delay unacceptable, and said he’s working with others to formally intervene in the case next month, arguing that unsafe conditions are a public health issue demanding immediate action.

"We have to take risks sometimes and challenge the status quo," Allen said. "That’s how we move forward as a society."

For more on both issues, visit www.sfbg.com

High speed rail on track

July 16, 2008

› steve@sfbg.com

It’s crunch time for high speed rail in California, a project 12 years in the planning that will finally go before voters in November, following a controversial July 9 vote in San Francisco on the system’s Bay Area alignment and ongoing political struggles in Sacramento.

As envisioned by project proponents, riders would be able to board the sleek blue-and-gold trains in San Francisco’s remodeled Transbay Terminal and travel at speeds of up to 220 mph down the Peninsula, cutting over Pacheco Pass into the Central Valley, and arriving at Union Station in Los Angeles two hours and 38 minutes later — or continuing on to Anaheim and arriving 20 minutes after that.

The $9.95 billion bond measure, Proposition 1, would cover about a third of the costs for this initial phase (the plan would eventually extend the tracks to run from Sacramento to San Diego), with the balance borne almost equally by the federal government and private investors. With around 100 million passenger trips per year, and LA-SF tickets projected to cost around $60, fiscal studies show the project will more than pay for itself in less than 20 years, then generate about $1 billion a year in profits.

Perhaps most important in these times of heightened environmental concern, the system is now proposed to run entirely on renewable energy sources and would use about one–third of the energy of air travel and one-fifth that of driving, eliminating 18 billion pounds of greenhouse gases from the atmosphere and reducing California’s oil dependence by 22 million barrels per year.

Yet there are still obstacles that could derail high speed rail, which was set in motion in 1996 by then–state senator Quentin Kopp, a San Franciscan and retired judge who chairs the California High Speed Rail Authority (CHSRA).

Critics of the CHSRA’s unanimous vote choosing Pacheco Pass over Altamont Pass are threatening to sue and now have about 30 days to do so. Union Pacific Railroad has complicated the right-of-way acquisition process by claiming it won’t allow the project on its property. And Gov. Arnold Schwarzenegger and his allies have been inconsistent in their support for the project (see "Silver bullet train," 04/17/07).

On top of that, legislation to update the six-year-old language of the bond measure, Assembly Bill 3034, appeared at Guardian press time to have fallen short of winning needed support on the Senate floor before the July 15 deadline set by Secretary of State Debra Bowen. And there was a renewed effort by Republican legislators to try to push the bond measure back to 2010.

Yet for all the challenges the project continues to face, the recent hearings in San Francisco demonstrated that there is a consensus emerging among some of the most powerful political players in the state that California is finally ready to catch up to Europe and Asia and start building the first high speed rail system in the United States.

CHSRA met in San Francisco July 8-9 to take public comment and finalize its last critical decision before the November bond measure — selecting the train’s route through the Bay Area and making the legal and environmental findings to support that decision. The stakes were high as the board weighed whether to select Pacheco Pass or Altamont Pass as the route from the Bay Area to Central Valley.

CHSRA staff and consultants, along with most Bay Area politicians and civic groups, favored Pacheco Pass, which is the faster and cheaper option, and one that doesn’t require a logistically difficult crossing of the San Francisco Bay to reach the Peninsula.

Most environmental groups favored Altamont Pass, which avoids ecologically sensitive Henry Coe State Park and areas where activists feared the rail line might induce urban sprawl or threaten agricultural viability. The conflict seemed intractable just a few months ago, with South Bay politicians threatening to oppose the project if it used Altamont and organizations, including the Sierra Club, threatening litigation if Pacheco was chosen.

But it appears that project proponents have allayed many of the environmentalists’ concerns by eliminating a proposed rail station in Los Banos or Avenal and including strong preservation policies in the project.

"We have worked with as many of these individuals as we could to accommodate their concerns," CHSRA executive director Mehdi Morshed said at the hearing, noting that they’ve done all they could to make changes and still have a sound project. "We can’t deal with the dogma. Some people say you must do this or else, and we can’t deal with that."

After years of studying the options, Morshed said the choice is clear.

"Pacheco is the appropriate corridor for fast intercity rail service," Morshed told the CHSRA board. "Somewhere along the line, we have to decide we’ve studied enough and move on, and this is one of those circumstances."

Most of the dozens of people who spoke at the hearing agreed, including Tim Frank, who represented the Sierra Club of California and praised CHSRA staff for addressing most of the group’s concerns.

"The opportunity to get people out of cars and out of airplanes and get them into steel wheels running on steel track is very important," Frank said, noting that the project was essential to meeting the state’s goals for reducing greenhouse gas emissions.

Yet others are still threatening litigation, among them Oakland attorney Stuart Flashman, who addressed the hearing on behalf of clients that include the Planning and Conservation League, the California Rail Foundation, and the Mountain Lion Foundation. He made a number of technical points about the project’s environmental impact reports, such as the use of alignment corridors rather than more specific routes.

"We find your report completely inadequate," Daniel McNamara, project director for the California Rail Foundation (a train users group), told CHSRA.

After the vote didn’t go his way, Flashman told the Guardian that the coalition he represents will meet soon to decide what’s next. They have 30 days from when the notice of decision was entered July 9 to sue unless the Attorney General’s Office waives the statute of limitations. "We’re going to be considering what to do now, but litigation is certainly on the table," Flashman said.

Whether filed by this group or another entity, the CHSRA has been working closely with Deputy Attorney General Christine Sproul to create a project that will withstand a legal challenge.

"We wanted to make sure that if and when there is a lawsuit — and there probably will be a lawsuit — that we are capable of defending it," Morshed told the board, noting how Sproul was brought in because of her expertise in environmental law.

Before the authority voted, Sproul explained that the environmental documents are for the overall program to build the project and are therefore not as detailed as the specific project studies that will be performed after CHSRA secures specific property to build on.

"Today, before you is really a broad policy choice," she said.

Sproul also said that the project is likely to proceed even if a lawsuit is filed, noting that getting an injunction to stop the project would require the litigants to secure a bond against losses to the state as it pursues this high-dollar project, "which could be millions."

But recent CHSRA actions have appeased many of the would-be plaintiffs and created a project that was effusively praised by stakeholders.

Mayor Gavin Newsom said San Francisco is "very supportive" of the project and will work to make it a reality. "We stand behind your efforts to bring high speed rail to the state of California," Newsom told CHSRA, later adding, "We need to connect the state to itself."

Newsom said San Francisco International Airport officials support the project. While it might seem to be a competitor, Newsom said high speed rail will take some of the pressure off SFO, which would otherwise experience congestion at problematic levels by 2020. Current plans call for a high speed rail station at SFO, as well as one near Palo Alto.

"We recognize that we need to have competitive modes of transportation," Newsom said. "Our airport is very supportive of this effort, and that’s very important."

Board of Supervisors president Aaron Peskin echoed the point, noting that he began his political career as an activist opposed to filling in more of the bay, something an airport expansion would probably require. He told the authority that his board has unanimously endorsed the project.

Jim Lazarus, vice president of the San Francisco Chamber of Commerce, also announced that group’s support for the project, telling the authority that Californians have long been ready for high speed rail: "I think the public is ahead of the politicians in Sacramento on this one."

Many of the speakers spoke knowledgably about high speed rail.

"I’ve ridden on the Japanese Shinkansen and I can’t wait to ride on the first high speed rail system in the United States," said Dean Chu, a commissioner with the Bay Area’s Metropolitan Transportation Commission.

"I’ve been building high speed rail systems for 15 years in Asia and Europe, and I just want to say, ‘It’s about time’," said Robert Doty, the rail operations manager for Caltrain, who has worked in Germany, England, Taiwan, and China.

Echoing that sentiment was Eugene K. Skoropowski, who also worked on high speed rail projects in Europe before taking his current job as managing director for the Capital Corridor Joint Powers Authority: "It’s about time we bring our American firms that have expertise (on building high speed rail systems) back home to work here."

Enthusiastic supporters of the project urged the authority the move quickly.

"We feel a great deal of urgency over this project," said Emily Rusch, a San Francisco–based advocate with the California Public Interest Research Group.

"Everyone I talk to is very excited about the idea," said San Francisco resident Mary Renner. "It’s embarrassing that we’re so far behind the rest of the world, and I just want to tell you the public is supportive of this project."

"Our priority is to get this thing built and get it built quickly," said Dave Snyder, transportation policy director for the San Francisco Planning and Urban Research Association. "Let’s get rolling on high speed rail."

The final step in getting high speed rail ready for the November ballot was to be AB 3034, which sought to update the language and financial oversight provisions of Prop. 1, whose language was written for the election of 2004 before changes in the project.

"I feel good and I’ll feel better when AB 3034 is in appropriate condition," Kopp said after the vote on the Bay Area alignment.

Kopp was critical of Sen. Leland Yee for amending the bill to guarantee the bond money went to the San Francisco to Anaheim section, something Yee said he did to protect San Francisco’s interests but that Kopp felt hurt the measure’s statewide chances. Yet that tiff was overshadowed by the bill’s apparent and unexpected failure in the Senate.

Sen. Mike Machado (D-Stockton) was unhappy with the Pacheco choice and decided to oppose the project, meaning that proponents needed three Republican votes to win the two-thirds needed for passage and only Sen. Abel Maldonado (R-Santa Maria) was willing to cross party lines, Capitol sources told the Guardian.

Secretary of State Debra Bowen had set a deadline of July 15 for substituting the new language in Prop. 1, so at Guardian press time it appeared the old language would remain in place, which Kopp said was acceptable and probably wouldn’t hurt the project.

Meanwhile, a project opponent, Roy Ashburn (R-Bakersfield), sought to kill Prop. 1 by doing what’s known as a "gut and amend" to an unrelated bill, SB 298 by Senate Minority Leader Dave Codgill (R-Modesto), in an attempt to push the bond measure back to 2010.

If he can find the two-thirds vote in both houses — which most sources consider unlikely — it would be the fourth time the bond measure has been delayed. So barring any unusual political deals, the high speed bond measure is still up in November.

If a majority of voters approve Prop. 1, the CHSRA would begin negotiating rights-of-way and working on final technical studies. Construction could begin as early as 2010, although completion could take up to 10 years.

In the meantime, CHSRA unanimously voted to work with regional rail agencies such as BART to create a rail system over Altamont. As Morshed said, "We need to immediately start working on the Altamont corridor and find a solution to that."

Nuclear fallout

July 15, 2008

› sarah@sfbg.com

As the US Navy prepares to deal with its radioactive past at the Hunters Point Shipyard (HPS) — inviting folks to submit comments by July 28 on its proposed cleanup plan for Parcel B — community members are struggling to understand the threat and its implications.

Bayview–Hunters Point residents and environmental and public health advocates gathered July 8 at City College’s Southeast Community Facility to hear from and question Navy officials, but few came away satisfied. Most expressed doubts about the Navy’s credibility, or confusion about the exact risks to human health and the environment from the plan to clean up radiological, soil, and water contamination.

For the past 25 years, this 59-acre property has housed a colony of artists in the site’s Building 103, in studios rented through the San Francisco Redevelopment Agency. In September the artists will be ejected, either to portables and buildings on the shipyard or to an offsite location, so the Navy can excavate the building’s storm drains and sewers where low levels of radiological contamination have been found.

HPS Base Realignment and Conversion Environmental Coordinator Keith Forman explained at the meeting that when the Navy first presented a cleanup plan for Parcel B in 1997, it had not surveyed for radionuclides, remnants of the shipyard’s military past.

That 2001 survey revealed that there are 14 sites on Parcel B that may have been exposed to radiation, including Building 103. The Navy’s 2004 Historical Radiological Assessment reveals that while Building 103 began as a non-nuclear submarine barracks, Operation Crossroad personnel subsequently used it as a decontamination center after an atomic test went awry in July 1946 in the South Pacific.

In that test, the Navy detonated two bombs the size used on Nagasaki in the lagoon of Bikini Atoll. One bomb, the HRA notes, was an underwater burst called Shot Baker, which "caused a tremendous bubble of water and steam that broke the ocean’s surface."

"Then a huge wave, over 90 feet high … rolled over target and support vessels as well as the islands of the atoll," the HRA records. "Vast quantities of radioactive debris rained down on the target and support ships, islands and lagoon."

Seventy-nine ships were sent to the Navy’s radiological center at Hunters Point Shipyard for decontamination, a site chosen in part because University of California, Berkeley and Stanford University were nearby to support the radiation studies.

The following year, from April through August 1947, the Navy burned 610,000 gallons of radioactively contaminated ship fuel at HPS. Also, workers sandblasting contamination at the shipyard’s dry docks showered in Parcel B’s Building 103, raising the current concern that cesium-137, cobalt-60, plutonium-239, radium-226 (from radioactive decay of uranium-238) and strontium-90 could be present in underground drains and sewers.

The 2004 HRA also identified two plots on Parcel B, IR07 and IR18, as having been used as dumps for radioluminescent devices and possibly more sandblast debris. It also listed a discharge channel between a pump house and Drydock 3 as radiologically impacted.

Currently the Navy is proposing to excavate soil from IR-07 and IR-18, including known mercury and methane spots, and ship it to dumps in Idaho and Utah; fill and seal the suspect discharge channel; cover potentially radiologically impacted soil; and stipulate that these two areas be used as open space in future plans for the base.

The cost of the Navy’s proposed radiological cleanup is $29.6 million. The Navy also proposes spending $13 million on amended soil and sediment cleanup, and $2.7 million on amended groundwater remediation.

Forman told the crowd that the Navy’s old soil remedy was a "bad fit." Excavations were larger than expected, Forman said, and showed no pattern of release. "There was no end in sight for the Navy," Forman said. "It didn’t look as if we were doing what we were meant to do: namely, find Navy-caused spills."

Forman also criticized the Navy’s old groundwater remedy as being "very passive." He proposed a remedy that includes more monitoring along the shoreline and using contaminant-eating bacteria to cleanup groundwater contaminants.

"The old remedy did not consider risks to wildlife and aquatic organisms at the shoreline, whereas the amended remedy will," Forman noted. "It was silent on this issue, yet we know the area has a shoreline."

Ultimately, amending the Navy’s cleanup plan is "about protecting human health and the environment," Forman said.

Green Action’s Marie Harrison was critical of the Navy’s failure to explain the risks in simple terms. "You talked about risk assessment, but you never told us what the risks were," Harrison said. "What is the risk to human life? How is capping going to stop it going into the bay? I’m not a scientist. I don’t have a PhD. I was hoping you were going to give me some kind of knowledge."

Harrison also worried that the Navy was not factoring in the cumulative risks for people living and working in the surrounding community who visit the shoreline to relax. Told that manganese, nickel, and arsenic are present in risky quantities, Harrison was referred to online information at www.bracpmo.navy.mil and to documents housed at the San Francisco’s Main and Third Street libraries.

Other community members criticized the Navy for not doing enough outreach to the Samoans, Latinos, and Asians in the community, and for having taken too long to acknowledge radiological impacts.

"Do you really want us to believe that no one was aware of nuclear waste and spills, given this was a Superfund site?" said Espanola Jackson, a BVHP resident since 1948.

"What I expect you to believe," Forman replied, "is that until 2002, no one who had technical and scientific expertise had looked at the evidence, sifted through history, and done an analysis to put together a radiological assessment."

Jackson also accused the Navy of "fast-tracking the cleanup in order for Lennar to build houses," referring to the efforts of Mayor Gavin Newsom, Speaker of the House Nancy Pelosi, and others to hasten the shipyard’s cleanup and early turnover to the city so the area can be turned into a massive development project pursuant to the voter-approved Prop. G.

"We are not going to accept anything less than total cleanup," Jackson said. "If you have to move that dirty dirt, do it. We need $10 billion. You said $60 million. You can’t even scrape the surface with that amount."

Melanie Kito, the Navy’s lead remedial project manager, replied that the Navy is "chartered to clean up releases of spills from Navy activities. Whatever remedy we put forth, we have to demonstrate that we are protecting human health and the environment."

Kristine Enea, a member of the community-based Restoration Advisory Board, told the Guardian that she felt that the Navy did not do a great job of explaining the risks of contaminants in, say, a major earthquake.

"If there’s an earthquake, would the risk be like getting 10 x-rays at once, or having a three-headed baby?" Enea said.

Pamela Calvert, deputy director of Literacy for Environmental Justice, told the Guardian she’s worried about shipping the contamination elsewhere.

"I’m really concerned that we don’t solve problems in Bayview by creating ones for another community," Calvert said. "It’s best to deal with it here. There is no such thing as ‘away.’ It’s someone else’s backyard."

Saul Bloom, executive director of Arc Ecology, which does contract work for the Redevelopment Agency, said that Calvert’s concerns strengthen the argument for simply capping Parcel B so that the contamination can’t escape rather than removing the material.

Bloom said he blames the Navy’s "incompetence" for the city losing the opportunity to transfer Parcel B early and speed development. "If we’d got rid of Parcel B in 2004, we would have been part of the housing boom, not the housing bust," Bloom said.

He believes the Navy’s proposed plan is acceptable, feasible, and protective, but that "whether it’s the best use given the needs of the BVHP is another debate."

While some residents are arguing for a total excavation of the site down to the sea floor, Bloom disagrees: "I think the covering strategy is a protective solution." He criticized the Navy for only having scheduled 11 days between its July 28 public comment deadline and its final draft, due out August 8.

"I’m concerned about the length of time they’ve allotted for the question that comes up and that no one has the answer to," Bloom said. "I don’t think it is adequate or seemly from a ‘we take your comment seriously’ point of view."

Shipyard artist Rebecca Haseltine, who has rented at Building 103 for 18 years, says that she has consistently trusted Arc Ecology’s advice on the shipyard cleanup. "But I also feel that we still don’t know the half of what happened on the shipyard. The Navy denied that any radioactive material had been used at the base, until a reporter with the SF Weekly published a story about it in 2001."

Real money, false arrest

July 8, 2008

› gwschulz@sfbg.com

The false arrest of an elected official in San Francisco for using a $100 bill that police wrongly thought was counterfeit has evolved into a potentially precedent-setting legal struggle over police accountability.

The San Francisco City Attorney’s Office is seeking to appeal the case all the way to the conservative-dominated US Supreme Court, an expensive fight that could overturn what would seem a welcome ruling in liberal San Francisco. The Ninth Circuit Court of Appeals last August affirmed in the case that citizens have the right to sue police officers after being unreasonably arrested for a crime they didn’t commit.

After a federal district judge refused to grant qualified immunity to the officers and throw out the lawsuit, City Attorney Dennis Herrera’s office insisted on repeated appeals argued by deputy city attorney Scott Wiener, rather than settling for a few thousand dollars and accepting that the cops simply screwed up.

"There are some people who would say ‘Why don’t you just pay a little money to settle it?’<0x2009>" Wiener told the Guardian. "But we have to take a broader institutional perspective, because if you start settling cases that don’t have merit, you’re going to wind up with a lot more cases like that than you would have otherwise."

At the center of the story is attorney Rodel Rodis, a Filipino activist and elected trustee of City College of San Francisco, who was arrested in the spring of 2003 and dragged to a police station for supposedly trying to buy a handful of items from a Walgreens with a counterfeit $100 bill. The bill turned out to be real.

But by the time the officers came to that conclusion, Rodis had suffered what he regarded as the terrible embarrassment of being shoved into a squad car with his hands behind his back in front of neighbors and constituents. It also occurred just around the corner from his longtime law practice and the main campus of City College, where he’s been an elected trustee since 1991.

Rodis promptly filed a $250,000 claim against the city, former Police Chief Alex Fagan Sr., and two officers at the scene alleging false arrest, excessive force, and the negligent infliction of emotional stress, among other things. He later offered to settle the suit for $15,000, but the City Attorney’s Office refused to accept the deal.

Five years and innumerable legal bills later, the case just keeps getting worse for the city — even before it lands in front of a jury to determine if indeed the police should compensate Rodis.

"Part of my mind was saying … ‘I’m not going to argue. I’m not going to resist,’<0x2009>" Rodis said of the arrest. "I put my hands behind my back but I’m thinking ‘This has got to be a mistake. Somebody here has to have some sense.’<0x2009>"

Rodis was suffering from minor allergy symptoms on Feb. 17, 2003, when he headed to a Walgreens on Ocean Avenue he’d been going to for 20 years. It was located near his Ingleside home and a law office he’s had in the neighborhood since 1992.

He picked up some cough syrup, Claritin, toothpaste, and a few other things. The total came to $42 and change, so he tried to pay with a $100 bill.

"I just happened to have it in my wallet," Rodis said.

The drugstore clerk used a counterfeit detection pen to be sure the bill was legit. It was, according to the marking, but the bill was printed in the 1980s before watermarks and magnetic strips were used to help stop counterfeiting.

The young clerk was unfamiliar with the bill’s design and called a manager to be sure. He, too, used a counterfeit pen to confirm that it was real. But the manager told Rodis he was still going to call the police, fearing it was fake. That’s when things turned surreal. Two officers showed up and almost immediately placed Rodis in handcuffs before trying to ascertain if he’d actually attempted to defraud Walgreens.

"They made no effort to determine what the situation was … they just assumed," Rodis said. "When she said ‘Put your hands behind your back,’ I thought I was in some Twilight Zone moment."

A third ranking officer on the scene, Sgt. Jeff Barry, had known Rodis for years as a local lawyer and City College trustee. Their sons were classmates. But Barry allegedly failed to step in and question whether Rodis was likely to be a fraud artist.

Another officer, Michelle Liddicoet, told Rodis she knew who he was and that he "should be ashamed of himself," according to the suit.

Feeling humiliated as other Filipinos he knew looked on, Rodis was put into the back of a patrol car and taken to Taraval Station, where he was handcuffed to a bench. There he waited another 30 minutes or so until the police officers were able to reach the Secret Service, which investigates currency for the US Treasury Department. A federal agent confirmed that the bill was likely genuine. The whole ordeal lasted about a couple of hours and Rodis was driven back to the drug store.

"This wasn’t a situation where Mr. Rodis was held in jail overnight or for a week or had to post some large amount in bail," Wiener said.

Fagan sent out a department memo shortly afterward stating that suspects have to know the currency they’re using is counterfeit before being arrested, and in any event, if they insist it’s real, the officer can book the bill as evidence for later examination and give them a receipt without arresting anyone.

But by then the damage was done and the hasty reaction of police would lie at the heart of the case that Rodis subsequently filed.

Rodis is an unlikely champion of police accountability. Known for his cantankerous personality, he all but accused the secretary of the San Francisco Veterans Equity Center last month in his regular column for the Philippine News of supporting a band of communist guerillas in the Philippines known as the New People’s Army, a charge the man angrily denied.

He bitterly responded with a string of e-mails last year when the Guardian reported he was several months late in sending legally required campaign disclosure forms from his 2004 reelection to the Ethics Commission (see "At the crossroads," 07/17/07).

But the city’s police academy also has invited Rodis to lecture recruits about San Francisco’s Filipino community as part of the department’s sensitivity training. A week after the incident involving Rodis, an elderly Filipino man who sold the San Francisco Chronicle downtown was savagely beaten and robbed of $400. He never found a police officer while walking to his Tenderloin home, where he died. The two incidents, one following on the heels of the other, enraged the city’s Filipino population of 36,000, and Rodis believes it proves the police department continues to have trouble with discrimination.

"The fact that it happened to me meant that I was in a position to do something about it," Rodis said of his dust-up. "For many [Filipino immigrants] … they wouldn’t have had the resources or the knowledge of the procedures to fight back. Even up to now, five years later, I still bump into people who appreciate the fact that I filed the action."

The case was assigned to Wiener, who is coincidentally the elected chair of the San Francisco Democratic County Central Committee and a longtime party activist in a city that’s famously wary of any perceived threat to civil liberties.

In his capacity as a lawyer for the city, though, Wiener tried to have Rodis’ suit tossed using a common courtroom maneuver known as summary judgment. Civil defendants request them from a court by arguing that a claim is so lacking in merit that they shouldn’t have to endure a costly, time-consuming jury trial.

He also made the standard claim that city employees — in this case police officers — are shielded by what’s known as qualified immunity, a legal argument designed to allow them room to make honest mistakes without facing an endless barrage of expensive litigation.

In March 2005, federal district judge Maxine Chesney granted the request in part, throwing out Rodis’ claim of liability against the city and county. But she allowed the part of the suit involving the two officers to move forward, arguing the arrest was illegal because they didn’t have probable cause that Rodis intended to defraud the store.

So Herrera’s office turned to the Ninth Circuit Court of Appeals, and in a move that surprised Wiener, the panel ruled 2-1 that public employees are entitled to qualified immunity, but not when they fail to act on their considerable law enforcement powers in a reasonable way and take into account all factors present at the scene.

To put it bluntly, cops sometimes make an error in judgment but they still have to use their brains for establishing probable cause. The panel also argued that even if the bill was counterfeit, Rodis did nothing wrong if he wasn’t aware of it.

"Even without knowledge of Rodis’ identity and local ties," the majority wrote, "based on the totality of the other relevant facts, no reasonable or prudent officer could have concluded that Rodis intentionally and knowingly used a counterfeit bill."

Now Herrera had on his hands published legal precedent that his staff believed imposed a new requirement on police officers to not only conclude that perpetrators passed counterfeit currency but also that they intended to defraud their victims. The decision, city officials claim in their pleading to the Supreme Court, could hamstring local and federal law enforcement investigating counterfeit currency and some other types of fraud.

"They said it was clearly established that probable cause is a fluid concept," Wiener said of the ruling. "Well, that’s a meaningless statement. Of course probable cause is a fluid concept. But the point of qualified immunity is that officers are entitled to rely on the current state of law about what the requirements are and shouldn’t have to predict what a judge is going to do down the road."

Lawrence Fasano, a lawyer for Rodis, counters that Fagan’s memo to the department reinforced the court’s opinion. Considering that the police and people in the neighborhood had known Rodis for years, the officers on the scene should have concluded that it was out-of-character for him to pass a counterfeit bill.

"All the evidence that was looked at by the police officers at the time indicated that he did not intend to pass counterfeit currency, including the fact that he had other $100 bills in his pocket that were genuine," Fasano said.

Fasano argued, too, that case law in California made clear the issue of intent cannot just be set aside by police.

Other cities and counties in California so fear the case’s impact that two interest groups representing them, the League of California Cities and the California State Association of Counties, filed a joint friend-of-the-court brief after the Ninth Circuit’s ruling, arguing that digital counterfeiting was a "threat to the nation’s fiscal health" that could grow in the future, and if allowed to stand, "the panel majority’s decision would eviscerate the doctrine of qualified immunity to the detriment of the public."

Wiener filed the Supreme Court petition in May after a larger panel of Ninth Circuit judges rejected a request for rehearing earlier this year. While the Supreme Court accepts only a fraction of the thousands of cases it receives annually, Wiener believes there’s a chance it will be accepted because of another such case it’s examining from the Tenth Circuit. The city won’t know for sure until the fall.

He adds that it’s extraordinarily dangerous for police to be forced to consider a citizen’s status as an elected official before concluding that probable cause exists for an arrest. The City Attorney’s Office won’t disclose how much has been spent on the case until it’s resolved, but Rodis estimates he’s spent more than $50,000.
The US dollar may be losing value internationally, but a $100 bill from the 1980s could cost San Francisco big bucks.

Sterile plans

July 8, 2008

› sarah@sfbg.com

When state and federal agencies announced June 19 that they are going to release millions of sterile moths into California cities to combat the crop-threatening light brown apple moth (LBAM), they insisted that their alternative pheromone spray program was safe and would continue to be applied in rural areas.

"Aerial applications will continue to be an important tool, especially in densely forested areas," says the statement on the California Department of Food and Agriculture’s Web site. "Our health officials did not find a link between the spraying and reported illnesses."

CDFA’s strategic shift also fueled fears that the state is simply exchanging one ineffective tool for another in an effort to appear to be doing something to combat the moth.

"The first one, the public didn’t like," said University of California, Davis entomology professor James Carey. "The second is a complete waste of money. They can’t eradicate these things, but [it] lets CDFA throw more public money down the rat hole."

As the Guardian has reported (see "Godzilla versus Mothra," 01/02/08), Carey believes that the moth, which has been found in a dozen California counties, probably arrived decades ago, not several years ago as state officials maintain.

CDFA spokesperson Steve Lyle acknowledges that some scientists say the LBAM has been here for as long as 50 years, but he’s seen no proof of that assertion, noting that CDFA trapping data found no moths in 2005, but plenty in 2007. "We’ve asked them to provide data, but they’ve yet to release anything," Lyle told the Guardian.

Carey believes CDFA’s 2005 trapping program was inadequately concentrated: "There is no way that CDFA can make any statements on the absence of LBAM in the state based on their 2005 trapping program…. Thus the extent of spread still has to be reconciled with known rates of spread of insects. This is a long-term infestation that has been around for many decades."

Lyle admits that sterile insect technology is an unproven LBAM eradication method. "But we’ve used it successfully in the Central Valley to keep the pink bollworm moth, which is a pest of cotton, at bay, and we’ve successfully moved from malathion to sterile insect technology to treat the medfly," Lyle said.

State officials claim that they switched tools because a pilot study (cofunded by the US Department of Agriculture) in rearing a viable colony of moths at the Agricultural Research Services labs in Albany yielded promising results much earlier than anticipated.

"Because of this success," wrote CDFA Secretary A.G.<0x0007>Kawamura in a June 13 memo to Gov. Arnold Schwarzenegger’s Cabinet Secretary Dan Dunmoyer, "CDFA anticipates that we will be able to move up a delivery date for sterile moths to two years, a timeline that would allow us to utilize it in the central coast region program."

Noting that a single-engine Cessna flies over the Los Angeles Basin each day releasing millions of sterile medflies, Lyle predicts that the state’s sterile moth release program "will be no more distinctive than that," and that the irradiated moths will be "no more radioactive than people’s teeth after a dental X-ray."

"The moths receive a minute amount of radiation that stunts the growth of their reproductive organs," Lyle explained.

USDA’s Larry Hawkins told the Guardian that sterile males and females will be released. "The females won’t be able to lay fertile eggs, but they might be putting out pheromones that draw wild males," Hawkins says, noting that the USDA may need to allocate more money to the program in addition to the funding now in place: $15 million in 2007 and $74.5 million in 2008.

The consequences of California having LBAM already include being quarantined by Canada, Mexico and Chile, with China and South Korea considering similar moves, Hawkins says.

"LBAM typically attacks leaves, but that doesn’t mean it never attacks fruit," said Hawkins, who believes California is posing a risk by leaving the moths untreated this summer, and that the nation needs to build public awareness (see "Chemicals and quarantines," 03/05/08) about invasive pests given accelerating climate change and global travel.

"The insect has not stopped breeding, and our trapping data shows the insect continues to spread and its numbers to go up," Hawkins warned.

But Carey predicts that "the moth problem," in terms of damage to plants, will turn out to be "pretty much nothing on the ground."

"Trade is about dealing with risk, through an agreement between a buyer and seller, that if seller doesn’t find X number of moths because the buyer has been spraying, then the seller can ship the produce," Carey opined. "This is the future of pest control."

How Quickly they forget

July 8, 2008

› sarah@sfbg.com

When former Sup. Ed Jew resigned in January 2008, he did so amid allegations that he wasn’t living in the Sunset District when he ran in the 2006 District 4 race, and that he had tried to extort thousands of dollars from the owners of Quickly, a bubble drink chain that has 13 franchises in San Francisco and thousands of stores worldwide.

Although Jew is headed to federal court Nov. 10 on charges of bribery, mail fraud, and extortion — including trying to extort $80,000 from Quickly’s owners for help obtaining city permits — Quickly still hasn’t secured those trouble-triggering permits.

The Small Business Protection Act, which San Francisco voters passed in November 2006, requires chain stores with more than 11 franchises to apply for conditional use permits before opening new outlets, to allow small businesses the opportunity to voice concerns they may have about chain store competition.

"But Quickly thinks they can flout the law," Sup. Jake McGoldrick claimed June 17, when he called for a Land Use Committee hearing into why a Quickly store at 331 Clement Street has been operating without a conditional use permit for a year.

City Planner Scott Sanchez told the Guardian that Quickly owners appealed a notice of violation that the Planning Department issued last summer. Sanchez said the 331 Clement store’s argument was that it was not a Quickly, "even though the store had the Quickly name, its colors, its beverages, and was listed on its Web site." He noted that Quickly eventually withdrew its appeal and opted in March to file a conditional use application instead.

Sanchez also explained that, thanks to a grandfather provision in the Small Business Act, only four of the San Francisco stores listed on Quickly’s Web site require such permits because the other nine opened before the act passed.

With hearings on those four stores scheduled in August, city zoning administrator Lawrence Badiner recalls that it was Jew, not the Planning Department, that first asked about the Quickly stores shortly after he was elected in November 2006.

"I said, ‘It sounds as if they are in violation,’<0x2009>" Badiner recalled. "I’d never heard of Quickly. But when we looked into it, I said, ‘Jesus, yes, it does seem to be a violation of the planning code.’<0x2009>"

"Jew then did with that what he did," Badiner added. "We had no clue that he was in contact with them and proposing to help them. But when a supervisor asks about something, we keep them informed. But we had no clue, until it hit the papers, that he was doing anything with money."

Badiner says it will cost Quickly $1,000 to $2,000 per store to come into compliance. After the Jew allegations hit, Badiner said his department continued to hold discussions with Quickly’s business owners.

"I don’t think we talked about Sup. Jew," Badiner said. "We were trying to be scrupulously fair. Some said we acted too slowly; some say we persecuted them. But we just tried to go through the process."

Jew’s lawyer, Stuart Hanlon, accuses the Quickly stores "of having always been in violation."

"And they are still doing it," Hanlon told the Guardian. "They have one in [board president Aaron] Peskin’s district that Peskin has done zero about. I don’t know how they do it, but they seem to get by without getting the permits."

"What Ed did or didn’t do is a subject of a court case. But why is Quickly allowed to be here in violation of statutes? How are they doing it?" Hanlon asked. "They are clearly a chain store that gets supplied by and delivered to by a main store, and more of them have opened up since Ed had this problem."

Peskin replied to Hanlon’s comment by telling us that "Stuart Hanlon can go fuck himself. The guy shouldn’t be using my name as he does, and if he and his client had any idea how law worked, Ed would not be in a deep pile of trouble. The Planning Department is fully aware of all the violations of Quicklys throughout San Francisco, including my district. The fact that the Planning Department is not doing their job with speed and alacrity has nothing to do with us lawmakers."

When we called the Quickly franchise, a woman gave us a nonworking fax number for the 331 Clement store. When we asked to speak to the relevant Quickly owners, she told us, "Stores are individually owned, so we are not sure about that."

Bucking off Chuck

July 8, 2008

› amanda@sfbg.com

It was a steamy 95 degrees inside the vineyard, just east of Stockton, where Maria Isabel Vasquez Jimenez was pruning a shadeless stretch of young vines. It was May 14, the third day of work for the 17-year-old immigrant from Oaxaca, Mexico. She’d been working more than nine hours, with just one water break, when she collapsed from heat exhaustion at 3:40 p.m.

An hour and a half later, when she finally arrived at an emergency room, her body temperature was 108.4 degrees. For two days her heart stopped and started, then ceased beating completely.

The California Division of Industrial Relations has opened an investigation of the death and her employer, Merced Farm Labor, whose operating permit had already been temporarily suspended by state officials based on past unpaid fines for unheeded heat safety violations, and a permanent revocation could be imminent.

The San Joaquin county coroner determined that heat was the fatal factor, and so Jimenez’s family has filed a civil suit claiming wrongful death. The district attorney and attorney general have also opened investigations.

"We’re hoping to send a signal to farmers that you don’t just hire a labor contractor because it’s the lowest bid," Robert Perez, the lead attorney on the case, told the Guardian. "We think farmers, when they hire a labor contractor, should check them out."

But activists connected to the case want to send the message even further, to stores like Trader Joe’s that market products made with cheap or exploited agricultural labor.

Merced Farm Labor was subcontracted by West Coast Grape Farming, whose president, Fred Franzia, also owns Bronco Winery, makers of Charles Shaw wine — also known as Trader Joe’s cheap and wildly popular "Two-Buck Chuck." Approximately 72 million bottles of the $2 wine are sold each year, exclusively at Trader Joe’s.

United Farm Workers, responding to Jimenez’s death, have asked supporters to fire off letters to Trader Joe’s requesting the company "implement a corporate policy to ensure that its your suppliers are not vioutf8g the law by failing to provide basic protections such as cold water, shade, and clean bathrooms."

So far reaction has been swift and significant. "We always get a big volume of response because our Listserv is very socially conscious," said Jocelyn Sherman, UFW’s director of Internet communications. "But for this we’ve gotten an overwhelming volume of response. It’s the situation. People need something to be done."

Sherman estimates as many as 15,000 e-mails have been sent from UFW supporters to Trader Joe’s, whose spokesperson, Alison Mochizuki, told us the ire has been misplaced: "The unfortunate and tragic death of Maria Jimenez highlights issues and concerns facing all agricultural industries across America. Maria Jimenez was employed by an independent contractor working in an independent vineyard. The vineyard supplies many wineries, but was not supplying grapes for Charles Shaw. The company employing the young farm worker has no more of a relation to Trader Joe’s than they do to any other wine retailer or restaurant."

However, UFW asserts that subcontracting is the historic artful dodge of many a vineyard, and a vendor like Trader Joe’s, which serves a progressive community, ought to exert its clout on these issues.

"Lovingly nicknamed ‘Two-Buck Chuck’ by a member of the wine press, these California wines have become something of a phenomenon in the wine world, and in our stores," trumpets Trader Joe’s Web site. "Contrary to many an urban legend, these super-value wines began as the result of an oversupply of wine and a great relationship with a valued supplier."

"You say you have a great relationship with this supplier," Sherman responded. "Use this great relationship to protect workers."

A spokesperson for Franzia told the Guardian that the company had no comment. Mochizuki said Trader Joe’s — which has 62 stores in Northern California — is committed to protecting workers: "Our vendors have a strong record of providing safe and healthy work environments and we will continue to make certain that our vendors are meeting if not exceeding government standards throughout all aspects of their businesses."

The dirty fight over clean power

July 1, 2008

› amanda@sfbg.com

A charter amendment for renewable energy and public power appears headed for the November ballot, and already Pacific Gas and Electric Co. is rounding up front groups and touting inaccurate figures in an attempt to scuttle the plan.

The San Francisco Clean Energy Act, introduced by Sup. Ross Mirkarimi, would mandate that the San Francisco Public Utilities Commission "produce a comprehensive plan for providing clean, secure, cost-effective electricity for city departments and residents and businesses."

If passed, San Francisco would exceed state standards by requiring 51 percent clean, renewable energy by 2017; 75 percent by 2030; and 100 percent by 2040. Workforce development is also part of the plan, and if it’s determined that public ownership of the grid is the way to go, any employees fired by PG&E will be hired by the SFPUC.

"The San Francisco Board of Supervisors is talking about taking over PG&E," Brandon Hernandez, the corporation’s manager of government relations, said at a June 27 Rules Committee hearing on the legislation. "PG&E’s system is not for sale," he asserted. He then went on to say a takeover would cost the city "at least $4 billion."

PG&E spokesperson Darlene Chiu told the Guardian: "That’s our estimate for what our system costs in San Francisco."

But the California State Board of Equalization says all of PG&E’s state-assessed San Francisco property was worth $1.2 billion in 2007. The board’s appraisers assess PG&E’s property for tax purposes and their final figure includes millions of dollars of property that San Francisco would not want to own.

PG&E threw other punches at the city. Hernandez threatened the loss of as much as $29 million per year in taxes and charitable giving. "We no longer will be contributing to San Francisco’s nonprofits and service organizations," he said of groups that received $5 million from PG&E last year.

That money buys some political loyalty. The only organizations that spoke against the measure — the San Francisco Chamber of Commerce, the Bay Area Council, and the A. Phillip Randolph Institute — all received bucks deluxe from PG&E. Between 2004 and 2006, the Chamber of Commerce Foundation received $166,000 from the utility; the Bay Area Council and Economic Forum grossed $132,500; and APRI banked slightly more than $100,000.

The Chamber’s vice president of public policy, Rob Black, criticized the move toward municipalization because it would make San Francisco, like other municipal utilities, exempt from the state-mandated 20 percent renewable energy by 2010. "The Los Angeles utility is at 48 percent coal. That’s not green, that’s not renewable. That’s something we need to be very careful about," he told the committee.

According to the Los Angeles Department of Water and Power, their power mix is actually 44 percent coal. But Black didn’t bother to check; he just took his figures from PG&E moments before, while conferring with Hernandez and Chiu. When questioned by the Guardian, Black said, "They didn’t come to me. I went to them."

He reiterated the concern that municipally-owned power isn’t required by the state to be clean and green, and becoming so could increase rates. "If we’re creating cheaper energy, where’s the incentive to do conservation?" he asked.

According to statistics from the meeting, the average PG&E household spends $74.55 per month on electricity, with 12 percent of the energy used hailing from renewable resources. An equivalent customer in the Sacramento Municipal Utility District has a bill of $46.60 for 18 percent renewable.

APRI’s James Bryant said his Bayview community group has issues with the costs and the idea that former PG&E employees would be hired by the city and subsequently receive worse retirement plans.

When asked if he was there because his organization gets money from PG&E, Bryant said, "Not really." He added, "I don’t have anything to do with their decisions. They don’t have anything to do with my decisions.

"Of all the amoral things PG&E does, they fund very worthy grassroots organizations and then lean on them to speak against things," Sup. Tom Ammiano said when expressing his support for the legislation. "Not only is San Francisco going to have public power, the state of California is going to have public power."

Other public comments overwhelmingly supported the measure. Some energy activists have been concerned that the legislation would derail or delay efforts to move toward renewables through the community choice aggregation (CCA) program.

Bad medicine

July 1, 2008

› news@sfbg.com

Let’s say you were recently diagnosed with a serious medical condition — depression, for instance. Your doctor thinks medication is the way to go, but says it may take some experimentation to find the right drug. The first try: Paxil.

For two weeks, you don’t notice a difference. But then suddenly you can’t sleep and you’re suffering from headaches. So you call your doctor, who tells you to stop taking the meds and come in to discuss your condition further. In the meantime, you get an unusual mailer from Walgreens, your local pharmacy, saying "please remember to take your medication." Perplexed, you wonder if your pharmacist knows something your doctor doesn’t, and you consider resuming the Paxil. Then you take another look at the mailer.

In fine print, you see that the message wasn’t sent by Walgreens, but by a company called Adheris. Since you’ve never heard of Adheris, you call your pharmacist for an explanation. The pharmacist tells you that Walgreens has been selling your prescription information to outside companies, which are contracted to send you these "reminders."

Sound creepy? Well, that’s the scenario that came within a hair’s breadth from becoming a potential reality recently via a state bill that would have eroded California’s strong medical privacy laws. The legislation passed the state Senate May 29 before dying in the Assembly June 17.

The bill, SB 1096, was sponsored by Sen. Ron Calderon (D-Montebello) and would have allowed pharmacies to sell patients’ prescription and medical information to third-party entities — including Adheris, Inc., the bill’s main business backer. The ostensible goal behind the bill was to allow Adheris and other similar marketing companies to mail "reminder" notices to patients so they wouldn’t forget to take their medication.

The Mental Health Association of California, the National Association of Cancer Patients, and other important health advocacy organizations supported the measure, saying they believed it would improve compliance and save lives. But the bill’s opponents, which included the California Medical Association and many consumer groups, asserted that the legislation was not really about helping patients.

Jerry Flanagan of Consumer Watchdog led the fight against the bill. Flanagan called the legislation "insidious" and "dishonest" because it was really about marketing pharmaceuticals and "boosting drug company profits." Adheris does receive funding from the pharmaceutical and retail pharmacy industries, and Flanagan pointed to a Wall Street Journal article from 2002 revealing that Adheris was essentially created to help drug companies ensure consumer loyalty to expensive, brand-name pharmaceuticals. Furthermore, Flanagan’s records show that Calderon received more than $89,000 from the drug and retail pharmacy industries over the past few years.

Sen. Calderon did not reply to specific questions, but pointed to a statement on his Web site saying he was "deeply disappointed" with the demise of his bill, and with critics who "completely mischaracterized [its] intentions." The statement asserted, "SB 1096 was about protecting patient health and reducing health care costs."

Pam Dixon, executive director of the California-based nonprofit World Privacy Forum, also opposed the bill. She said that in addition to its shortcomings, the measure was poorly timed. "What’s really tragic is that just as California is pushing new electronic initiatives — e-prescribing, assembling a diabetes registry, digitizing more and more information — we have a politician trying to give a marketing company a bite of the apple. Now is when we need to be protecting the exceptionally strong privacy laws we have, not weakening them."

So why would such a bill surface in perhaps the most pro-privacy state in the nation? Perhaps because in other states, pharmacies can already do this. No other state has the equivalent of California’s Confidentiality of Medical Information Act, so there is nothing to prevent pharmacies from selling patient information. And they’re selling that information, although not without controversy. Indeed, Adheris is still fighting a class-action lawsuit in Massachusetts for allegedly vioutf8g consumers’ privacy through just this type of campaign.

But what about federal law? Doesn’t the Health Insurance Portability and Accountability Act of 1996 (HIPAA) prevent this?

No. HIPAA was enacted by the Clinton administration to safeguard medical information. But according to Peter Swire, who was Clinton’s chief privacy counselor and helped draft the legislation, the law permits pharmacies to contract with outside firms to engage in reminder campaigns. As originally drafted, the law included an opt-out. But the George W. Bush administration ditched it in 2002, weakening the law. Swire said Calderon’s bill appeared to be an attempt to "shift California law to the federal standards."

Dan Rubin, CEO of Adheris, said California’s strict law hurts patients. He cited a 2003 World Health Organization study suggesting that "increasing adherence [to prescription drug regimens] … may have a far greater impact on patient health than any improvement in specific medical treatments." But to many in the health care community, the debate wasn’t about whether adherence was a problem — they all agreed it was — but about how to best address it.

Dr. Jack Lewin, former CEO of the CMA and current chief of the American College of Cardiology, said that although patient compliance is a "critical" issue, Calderon’s bill was a "Band-Aid solution." Lewin pointed out that non-adherence usually stems more from personal choice or denial than forgetfulness.

Dr. Sharon Levine, associate executive director of the Permanente Medical Group, said the problem with SB 1096 was that it was not "evidence-based."

"The science of non-adherence is in its infancy," she added. "We just don’t know what kind of effect, if any, a mailed piece of information is going to have."

But thanks to Flanagan of Consumer Watchdog, among others, Californians won’t need to worry about such mailings — for now, anyway. When asked if the bill was dead for good, Flanagan warned of the need for continued vigilance. "It can always come back," he said, adding that a similar bill, AB 1587, is being presented to the Assembly Judiciary Committee this month.

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