G.W. Schulz

Sutter bleeds St. Luke’s

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› gwschulz@sfbg.com

Dr. Bonita Palmer has worked at the embattled St. Luke’s Hospital on the southwest corner of César Chávez and Valencia for 17 years.

Before a packed room of union organizers and religious leaders Sept. 12 at St. Mary’s Cathedral near Japantown, she gave a brief speech about her experiences at the beloved but financially troubled hospital.

"St. Luke’s has been struggling to stay afloat for many years," Palmer told the audience. "Under managed care, reimbursements are down, the numbers of uninsured patients are up, and the growing gap between income and cost of care stresses the health of working people."

Money woes at St. Luke’s are no secret. Its parent company, California Pacific Medical Center, an otherwise lucrative group of San Francisco hospitals owned by Sacramento’s Sutter Health, describes the losses at St. Luke’s as anywhere from $20 million to $30 million annually.

Patient advocates and unions representing St. Luke’s workers have long feared closure of the hospital and its badly needed acute-care services, which thousands of residents — the city’s poorest among them, living nearby in the SoMa, Mission, and Bayview–Hunters Point neighborhoods — often visit when they can’t get expensive medical treatment elsewhere.

The hospital continually faces cuts executed by the CPMC, from its downgraded neonatal nursery to the subacute unit, where, Palmer says, patients who require nonemergency but highly specialized care from professionals are being turned away. "Sutter scrapped its plan for a much-needed upgrade to our emergency room even as we continue to receive the overflow of patients from" San Francisco General Hospital, she said.

Staffers learned most recently that outpatient physical therapy, which had already been trimmed, will be done away with completely, while the hospital’s 36-bed inpatient psychiatric unit and outpatient clinic have already been closed. A woman in the audience confessed afterward that she was nearly brought to tears by Palmer’s tale.

The decisions only worsened Sutter’s reputation across Northern California for dwelling on its bottom line and further enraged the United Healthcare Workers–West union, which represents thousands of Sutter workers and with which the company has regularly battled for a decade.

St. Luke’s contains one of the most active emergency rooms in the city, and aside from General Hospital a mile or so away on Potrero Avenue, it serves more patients benefiting from Medi-Cal and Sutter’s version of charity care services than just about any other facility.

The CPMC, which fully merged with St. Luke’s in January, promises the hospital will be a part of the company’s future. But the CPMC also comes closer every day to beginning construction of a new $1.7 billion hospital on Cathedral Hill, closer to the city’s wealthiest neighborhoods. And critics worry that CPMC’s new bid proves not only where its priorities are but also that once-independent St. Luke’s — opened in 1871 by an Episcopal minister — will suffer death by a thousand cuts.

Sup. Tom Ammiano, who’s closely observed the fate of St. Luke’s for years, says the CPMC is slowly amputating one of the few hospitals left in the southern portion of San Francisco while paying lip service to nonprofit health outreach.

"They lie without guile," he said. "Waterboarding would be more enjoyable than dealing with these people."

Sutter initially took over St. Luke’s in 2001 as part of a settlement agreement after the hospital sued Sutter in 1999, alleging state antitrust violations in Sutter’s brokering of an exclusive contract with the Bay Area’s largest network of doctors. St. Luke’s officials claimed the contract stripped wealthier patients away from the hospital, which hurt its bottom line.

The settlement required Sutter to bankroll St. Luke’s with a series of subsidies — and included a promise of up to $20 million for needed retrofit work that doesn’t appear to have been done — while allowing the hospital to remain somewhat independent. The terms expired last year, and St. Luke’s has since been completely folded into the family of San Francisco hospitals known as the CPMC, which includes the Davies Campus, nestled between the Castro neighborhood and the Lower Haight, the Pacific Campus on Buchanan Street, and the California Campus in the opulent Pacific Heights area.

While St. Luke’s can’t complete a fiscal-year cycle without coming up short of cash, the CPMC as a subsidiary of Sutter Health earns tens of millions of dollars in net income annually, much of which is sent to Sutter’s home office in Sacramento. In 2003, for instance, the CPMC transferred $118 million in net income — the money remaining after expenses are covered, which any other business would call profit — out of the city. Other ailing Sutter-owned hospitals around the state receive inflows of money from Sacramento, such as a Santa Rosa medical center that got $16 million in 2003, according to documents Sutter must provide to the state.

"In good times, affiliates share a portion of their revenue in excess of their expenses to help strengthen the network through this shared balance-sheet approach," Sutter spokesperson Karen Garner told us. "And in times of need, our affiliates can count on the network to help ensure that those services can continue to be available to their local communities."

But Sutter has announced that it plans to close part of the money-losing Sutter Medical Center of Santa Rosa, which faces high seismic retrofit costs, fueling concerns that something similar will happen at St. Luke’s. Sutter also last year moved to sever ties with Marin General Hospital and wash its hands of a costly needed retrofit there. An acute-care facility in San Leandro that loses money may soon be closed as well, as locals there learned just this month when a Sutter employee leaked the news to the San Leandro Times.

"CPMC plans to stop serving unprofitable areas, ignoring their obligation to the community," Helen York Jones, a union steward of CPMC employees, said at a July rally outside St. Luke’s. "How can they be entrusted with a large share of the area’s health care system?"

For a supposedly nonprofit chain of hospitals, Sutter Health is very profitable, having one of its best years in 2006. Its net income from operations amounted to more than $500 million, an increase of 33 percent from the previous year, which its execs attributed to the company’s outsize investments. Sutter controls more than two dozen medical centers throughout California and one located in Hawaii.

The company’s mammoth $2 billion investment portfolio brought the company $159 million in returns last year. Sutter’s CPMC subsidiary also benefited from more than $50 million in local, state, and federal tax breaks during 2005, according to figures maintained by the San Francisco Department of Public Health.

Meanwhile, Sutter has announced plans to spend $1.1 billion fully replacing facilities in Sacramento and San Mateo. In fact, the company broke records in June when it acquired state-backed bond financing of $958 million — which essentially amounts to a low-interest, tax-free loan — which it intends to use for seismic retrofit projects at several of its hospitals across the state.

But according to state records, the company doesn’t intend to use any of the loan money for retrofitting the St. Luke’s campus, part of which the state has concluded poses "a significant risk of collapse and a danger to the public after a strong earthquake," according to state structural ratings. State law gives hospitals until 2013 to meet strict seismic standards or shut down.

"Sutter wants to use money to fuel their corporate expenses in markets that are making money or have the potential to make money," Sal Roselli, president of the United Healthcare Workers–<\d>West, said.

Roselli believes the CPMC wants to close the emergency room at St. Luke’s and more or less turn the hospital into a clinic, perhaps once the Cathedral Hill location is completed; Sutter, he said, promises to maintain community services during its hospital takeovers but often backslides on those promises within months.

CPMC spokesperson Kevin McCormack doesn’t outright deny the possibility that St. Luke’s will someday see vastly fewer ER patients.

"St. Luke’s is still going to be a vital part of anything we do in terms of providing health care in San Francisco," McCormack said. "We intend to strengthen its role — not just to keep it going, but to make it better. Because right now what happens is that a lot of people don’t have access to preventative care, so they end up using the emergency room when they have a problem with, say, diabetes or asthma."

But Ammiano remains skeptical.

"If we allow this to happen and if we can’t find alternatives," he said of the cuts at St. Luke’s, "it’s really going to not just tear a hole in the fabric of that neighborhood but also the whole southeast section."

The tragic tale of Tamesha Tobie

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› gwschulz@sfbg.com

At first, police believed it was a terrible, self-inflicted mishap.

It happened April 15, just after the funeral held for a San Francisco man who’d succumbed to diabetes. Mourners were gathered in the Western Addition home of Tamesha Tobie’s grandmother, Edna Tobie. Tamesha, a 14-year-old first-year high schooler in town from Stockton for the funeral, was hanging out with two teenage boys, her cousins, in a bedroom — a room where, it turns out, another family member had stashed a powerful .357 Magnum revolver. Suddenly, the house filled with the sound of the gun’s pop.

Tobie’s aunt was cooking in the kitchen. She rushed to find out what was going on. The two boys met her in the hallway and told her there was a gun; she found Tobie on the bed, not moving. Nearby lay the pistol, with five live rounds and a shell still visible in the cylinder under the hammer.

The family dialed 911, and soon the area was packed with uniforms. Paramedics arrived with the police, as did a media flack who expected reporters, a crisis response team from the health department, the local medical examiner, and Sup. Ross Mirkarimi, whose district includes Edna Tobie’s Oak Street home.

"These are vivid experiences you don’t lose," Mirkarimi said. "The gut-wrenching part is that it was a young girl."

Fox, CBS, the Associated Press, and the San Francisco Chronicle all reported what the cops told them: Tamesha Tobie had accidentally shot herself with the gun.

But it turns out that wasn’t true. In fact, according to an autopsy completed by the medical examiner June 1, Tobie didn’t pull the trigger.

Her death has become another in a long list of unsolved homicides in San Francisco — and another sign that gun violence, both accidental and intentional, is raging out of control.

THE COPS DON’T KNOW


Months after the killing, the San Francisco Police Department didn’t seem aware that Tobie’s death was anything but an accident.

When we contacted the SFPD’s press office early in September, the staffers weren’t aware that her death had been ruled a homicide, nor was Lt. John Murphy, head of the homicide unit. Department spokesperson Sgt. Neville Gittens even requested that the Guardian fax him a copy of the report.

Now the SFPD acknowledges that Tobie was a homicide victim. "We believe it was done at the hands of someone else," Gittens said a week after receiving the report.

A homicide inspector assigned to the case said he learned of the medical examiner’s final report two weeks ago but explained that he’d already regarded Tobie’s death as suspicious.

Inspector Mike Johnson said he thinks one of the two cousins in the room with Tobie fired the weapon. Police have also concluded that the gun was used in an unrelated San Francisco homicide a few months prior by another young family member before being hidden in the home of Tobie’s grandmother.

Nobody has been arrested in that case either. Despite the fact that this gun has now been used to kill at least two people, Johnson conceded that not enough evidence exists to make an arrest in the first murder, even though a suspect has been identified — an exasperating fact for a city already near last year’s total of 85 murders.

If nothing else, the gun’s owner could possibly be guilty of negligence or child endangerment — but no charges are pending.

"The capacity of government not to do something about this at the pace that it is rocketing is what is absolutely alarming," said Mirkarimi, who’s pushed the Mayor’s Office of Criminal Justice to provide better data on violent crime in the city, "because it’s not going to abate itself…. The way that the number is traveling out of the reach of the Police Department and the district attorney — I think we’re going to need to send red flares up, SOS."

DEADLY HORSEPLAY


The Tamesha Tobie case is tricky; there were only three people in the room, and one is dead. The boy who police believe accidentally ended Tobie’s life won’t confess, Johnson said. Some relatives dispute the police’s view that one of the boys mistakenly fired the weapon and instead believe the story the pair have stuck to so far — that the gun fired on its own from the bed as they horsed around, the bullet smashing through the right rear of Tobie’s jaw.

"Obviously the one boy who did it doesn’t want to say anything to us," Johnson said. "And the other boy is somewhat traumatized, and his parents are worried about any possible criminal charges against him for associating with the first boy. So right now we’re trying to corroborate the stories and what happened through other people who were in the house…. It’s kind of a sensitive thing at this point."

But either way, Tamisha Tobie is the ultimate victim of gun violence, and while her death likely wasn’t intentional, it’s joined the city’s steadily climbing homicide rate nonetheless.

Attempts to reach Tobie’s family for comment were unsuccessful.

Statewide in 2004, 10 kids were killed after being accidentally shot either by themselves or by someone else, according to figures maintained by the federal Centers for Disease Control and Prevention. More recent figures won’t be available until later this year. But according to media accounts and calls to local police jurisdictions, over the past 12 months, three children died similarly just in the Bay Area.

In June a five-year-old boy in Oakland shot himself while playing with a relative’s gun, and a 28-year-old man was arrested for child endangerment — in notably less time than it took San Francisco to complete Tobie’s autopsy.

Just days after Tobie was killed, an 18-year-old girl accidentally shot a younger male teen in the city of Richmond with a revolver he’d found in the home where his death occurred. Last November a 16-year-old boy in Contra Costa County was killed after a friend accidentally shot him in the chest while playing with a .22-caliber revolver. Several other accidents occurred during 2006 in San Francisco and the East Bay, including one involving an Alameda toddler who that spring mistakenly shot his 20-year-old cousin with a .38 that belonged to a family friend.

The gun lobby complains that news stories depicting such deaths overstate the problem of accidents among kids and foster hysteria.

But Shawn Richard of the local nonprofit Brothers Against Guns has a response. The volume of deaths, he argues, isn’t the story.

"It could be a low number. It could be a high number," Richard said. "Regardless, it’s still ridiculous to deal with lives that are being taken by a gun."

Richard founded Brothers Against Guns after two of his siblings were shot to death in San Francisco during the 1990s. He joined the Mayor’s Office, District Attorney Kamala Harris, and the Legal Community Against Violence in drafting a batch of local antigun ordinances that passed the Board of Supervisors last month. One requires local firearms dealers to send inventories of their weapons to the police chief every six months, and another requires all handgun owners to disable their weapons with trigger locks.

Richard is also working with Assemblymember Mark Leno (D-San Francisco) to ban gun shows at the Cow Palace, which is located on state property near the Sunnydale housing project, where violent crimes are a frequent occurrence.

But would all of the antigun news releases in the world have saved Tobie? Homicide inspector Johnson wonders aloud whether they would.

"If the gun’s used in a homicide," Johnson said, "and it’s hidden in the house by children, who’s going to put a gun lock on it?"

Your Black Muslim Bakery on the chopping block for $900,000

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Want a decades-old Oakland bakery uncomfortably linked to a litany of alleged violent and sexual felony criminal charges? It’s yours for just $900,000.

Oh yeah, it’s been shut down by the health department, too.

A trustee for Your Black Muslim Bakery’s Chapter 7 federal bankruptcy has hired a real-estate broker for the seemingly impossible task of selling the business, according to court records filed in Oakland last week. We made a trip to the court’s public terminals in downtown Oakland for a look at where the case stood.

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The attempted sale includes Your Bakery’s main 5839 San Pablo Avenue location in Oakland, raided by a swarm of police last month, in addition to a duplex at 1083 59th St. Records show they will attempt to sell it “as is,” baggage and all.

But court records don’t indicate whether the trustee will try to also sell two other bakery locations slapped with minor health-code violations last year, including one for not properly cleaning and sanitizing food contact surfaces. (Follow this link to view descriptions of alleged health-code violations leveled at three total bakery locations over the last several months.)

Breaking a sweat

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› gwschulz@sfbg.com

When San Francisco took the national lead in eschewing consumer products made by workers forced to endure unsavory working conditions, Mayor Gavin Newsom positioned himself front and center on the issue.

Along with Sup. Tom Ammiano, Newsom coauthored the nation’s toughest municipal ordinance on the matter, requiring that the city and county of San Francisco purchase garments for its firefighters, police officers, Muni drivers, and others from manufacturers that can prove they don’t subcontract with sweatshops or mistreat workers themselves.

Putting the widely touted plan into action was another matter. Two years later, some appointees to the city’s newly formed Sweatfree Procurement Advisory Group, including former state senator Tom Hayden, say San Francisco is already failing to recognize its own commitment to human rights.

Several contractors who are set to provide the city with everything from bulletproof vests to uniforms for the Sheriff’s Department have received exemptions from the law, and nearly all of them have contracts lasting from three to five years — meaning it could be the next decade before the law has much impact.

The contracts in question total $7.2 million in value, according to city records.

"The waivers have no conditions attached," Hayden wrote in a recent letter to the mayor. "They give permission to continue avoiding compliance for several years…. We know from the city’s own staff that one supplier, Galls, produces in Colombia, a human-rights violator where scores of union leaders have been assassinated."

Hayden added in a phone interview that members of the advisory group have offered solutions to the city’s slow pace, but officials haven’t reacted. He met with American Apparel CEO Marty Bailey last month, and Bailey expressed interest in bidding on the city contracts, Hayden said, but the city hasn’t followed up with a meeting or conference call. Nor has it explored the option of joining contracts with "sweat-free" companies doing business with Los Angeles, Hayden contended.

"I’ve wondered if the procurement officials in San Francisco were being creative enough in looking for suppliers," Hayden said, "or whether they were looking at the same old handful of suppliers as if those people would change their ways."

Dozens of cities have such laws in place, but few have serious enforcement mechanisms. San Francisco was supposed to distinguish its ordinance in part by activating an agreement with the nonprofit enforcement body Workers Rights Consortium, which should already be inspecting manufacturing plants independently to ensure fair wages, benefits, and safety standards.

But enforcement, it turns out, is exactly where San Francisco’s law has so far fallen flat on it face, critics from the advisory group say. The group’s chair, Valerie Orth, an organizer for Global Exchange, said city bureaucrats promised to grant only short-term contracts until the law’s complex requirements were logistically workable.

Companies doing business with the city are often merely part of a supply chain that is coordinated with manufacturers abroad, so inspectors must track the conduct of subcontractors too.

The city, however, still doesn’t know the locations of some of the manufacturing plants where uniforms for sheriff’s deputies, meter enforcers, and many others are produced, Orth said, and with so many suppliers potentially receiving waivers, there’s no way to tell if, for instance, workers are getting a minimum wage.

Some businesses did provide info to the city on what outfits they subcontract with, but in one case the subcontractor, Fechheimer Brothers Co., didn’t comply with the law’s wage requirements, city records show.

According to Fechheimer’s Web site, the company has "manufacturing partners" in Central and South America, Europe, Africa, and Asia that "complement our three union plants in the United States." Fechheimer is participating in a three-year contract to provide uniforms to the city’s fire department.

"We’ve been trying to implement this law since 2005," Orth told the Guardian. "They’ve had time to try and figure out the kinks."

Orth said an executive from Fechheimer attended a recent advisory group meeting and complained that disclosing the location of manufacturing plants abroad would make the firm less competitive.

Newsom’s government affairs director, Wade Crowfoot, was unhappy when he discovered last week that Hayden and Orth had distributed a news release outlining their complaints. When we contacted the mayor’s media flak, Nathan Ballard, with questions, he responded only with an exasperated letter that Crowfoot had sent to the duo.

"Far from the doom-and-gloom portrait painted by the press release, the city remains committed to advancing the most aggressive anti-sweatshop law in the country," Crowfoot wrote. "While it may be frustrating to implement this incrementally, our experience with other groundbreaking legislation such as requiring domestic partner benefits suggests that remaining focused on removing the barriers to implementation — and working together to do so — is the only way to make this law fully operative."

Crowfoot added that the city wants to modify the law to reward contract bidders who are mostly compliant, but Orth and Hayden still worry that the city is simply prioritizing suppliers who are the least costly. According to Orth, "Once [contractors] figure out how they can get out of complying with the law in a city like San Francisco … they can easily get out of complying with laws in other cities."

What’s in a name? Answer: $26,000

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A few weeks ago, we told you the story of Kevin Scott Noah, a carpenter who fell to his death while working on the Golden Gate Bridge in 2002. Occupational safety officials fined his employer, a joint venture known as Shimmick-Obayashi, $26,000 for a handful of alleged violations.

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But four years later on appeal, an administrative judge tossed every single one of the fines arguing that a bizarre technicality meant Shimmick-Obayashi wasn’t responsible for the accident. Cal/OSHA, the judge concluded, hadn’t printed the full legal name of the company on the citations, so the contractor didn’t have to pay a dime.

Apparently, however, state auditors don’t give a lick what the company’s full legal name is – they know that using the shorter but clearly decipherable “Shimmick-Obayashi” should be enough, according to the report linked above. So while one bureaucracy can waste thousands completing an investigation that’s dismissed on a single flimsy claim four years after the fact, another can summarize what that same firm is earning in contract change orders and simply refer to them as “Shimmick-Obayashi” without anyone declaring the audit invalid.

By the way, between April and June alone, the Shimmick-Obayashi joint venture (not their full legal name, your honor) earned $212,000 in contract change orders. Earlier we reported that Shimmick-Obayashi would likely earn a total of $30 million more to help retrofit the Golden Gate Bridge than authorities originally anticipated. The initial contract was for $122 million.

Bling in the police union’s new contract

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Some might suggest that reading reports from the city’s budget analyst over tumblers of well bourbon at Mission Bar is a little pathetic. They’re right, but the damn things are so often full of such great little stories, we can’t help it. And they’re not available on the city’s Web site; you have to request and obtain them from the board clerk’s office, leading us to wonder how many people actually read them.

San Francisco’s longtime Budget Analyst Harvey Rose reviewed more than two-dozen union contracts for city workers passed this year by the Board of Supervisors. You’re gonna love what we found in the police union’s new agreement with the city.

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San Francisco police officers don’t like living inside city limits, because they say it’s too expensive. Cops do fairly well here, and as we reported awhile back, Gary Delagnes, president of the San Francisco Police Officers Association, even anticipates that his union’s rank-and-file will be the highest paid in the nation by 2011.

But that’s not enough to keep officers from escaping to the ‘burbs, which would pose a serious logistical problem if a major natural disaster occurred and emergency personnel couldn’t cross damaged bridges back into the city fast enough. Sup. Ross Mirkarimi contended earlier this month that 75 percent of the force lives outside the city, and he wants more recruitment efforts to take place within the heart of San Francisco. An equally startling number of firefighters live elsewhere, too.

So the city of San Francisco will be handing $20,000 checks to officers as a down payment on a home in the city if they move back. It’s actually a “loan,” but it doesn’t have to be paid back if the recipient lives in the home for at least five years. If the cop is a renter, they can receive $5,000 for “relocation-related expenses.”

Joe Alioto to take on Big Oil in court

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By G.W. Schulz

Just received early word that in-your-face antitrust lawyer and local swell Joe Alioto will be filing a gargantuan class-action suit tomorrow in federal court against some of the largest players in the global oil racket accusing them of fixing gasoline prices and destroying documents that showed evidence of the collusion.

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The defendants will include Shell Oil Company, Chevron Corporation and Saudi Refining, Inc. and the suit alleges that they artificially increased the price of gasoline for more than 20 gas stations throughout California, whose owners are acting as the plaintiffs, by 50 to 60 percent. “Plaintiffs paid significantly higher wholesale prices for branded gasoline when the price of crude oil fell,” a press announcement reads.

The suit will state that the defendants formed two companies in a joint venture in 1998, Equilon and Motiva, the former a partnership between Shell and Saudi Refining and the latter made up of Shell and Texaco. Both refine and distribute wholesale gasoline and other fuels.

Alioto represented local businessman and former political consultant Clint Reilly in his antitrust suit against MediaNews Group and the Hearst Corp. after the two announced a massive investment scheme that enabled MediaNews to last year buy up several Bay Area daily newspapers with $300 million from Hearst. The suit was settled earlier this year with mixed reviews.

The latest Big Oil suit will officially be announced tomorrow on the federal courthouse steps in San Francisco at 2 p.m., 450 Golden Gate Ave.

San Francisco cops to be highest paid in the nation by 2010?

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By G.W. Schulz

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We usually call this segment “What’s the city’s cop union pissed about now?” But the SFPD doesn’t appear to have a lot to be pissed about these days, if Gary Delagnes is right in promising that San Francisco police officers will be the highest paid in the nation by the year 2010.

Delagnes (pictured right) is president of the San Francisco Police Officers Association, of course, and we like to keep track of what he’s complaining about by reading through the often-disturbing POA Journal, a wonderful place to learn what’s on the minds of the SFPD’s rank-and-file.

In the August issue, Delagnes doesn’t get around to attacking Gen-Xers or deriding “community nut jobs.” He’s too busy promising the fattest paychecks in all the land by the time the union’s current contract expires, for which City Hall recently completed negotiations.

Here’s the money shot from Delagnes:

“It was a team effort and our mission was accomplished. We will now finally approach our mission of 17 years ago when we vowed to be the highest paid major police department in the country. When that last raise kicks in on July 1, 2010, I believe we will have reached that goal.”

There are a lot of things a police department can aspire to, we guess. But nothing could be as important as beating out the other bastards in pay. Delagnes precedes all of this with a stretch of a metaphor. When he played baseball as a young man, he hated to bunt, because, as he writes, he’d much rather clear the fences.

“One time I just ignored the coach’s obvious bunt signal. Okay, maybe it was more than just once … But the one time I do remember ‘missing’ the signal just about cost us the game. My coach at the time made sure I spent the next couple of games on the bench so that I would remember I was playing a ‘team’ game.”

We’re pretty sure Delagnes was trying to say that he couldn’t have whipped the city into contractual submission without the rest of his negotiating committee, whom he goes on to thank individually. You know, teamwork. We think. He commits several column inches to this metaphor, and we’re still not quite clear on it.

Shoot first, cadets. Foot pursuits smack of effort.

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By G.W. Schulz

*UPDATE: SGT. NEVILLE GITTENS OF THE SAN FRANCISCO POLICE DEPARTMENT’S PRESS OFFICE WANTED TO MAKE IT CLEAR THAT HE WAS OUT OF TOWN WHEN WE LEFT A MESSAGE FOR HIM INQUIRING ABOUT THIS REPORT. INDEED, THE SFPD’S PRESS OFFICE NEVER RETURNED OUR CALL, BUT GITTENS SAYS FOR THE RECORD THAT HE WASN’T AT WORK THAT DAY, AND IT WASN’T PERSONALLY HIS FAULT THAT WE DIDN’T HEAR BACK FROM THE DEPARTMENT. THANK YOU FOR THAT CLARIFICATION, SERGEANT.

We were going to save this item for the briefs section on Wednesday, but another piece came up at the last minute, so here you go.

Last week, flaks from the San Francisco Police Department sent out a press release proudly announcing that 40 men and women would be officially graduating from the police academy August 10.

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But the department’s badly needed infusion of rookie officers comes with a caveat. Someone recently called the whistleblower hotline at the San Francisco Controller’s Office to complain that an officer “had failed the agility test, but was able to advance to the oral board portion of the exam,” according to a regular summary of the tips posted on the city’s Web site.

The whistleblower reports don’t name names but do outline allegations of fraud, waste and employee misconduct in addition to explaining how investigators responded.

Officer Maria Oropeza from the academy wouldn’t answer questions about the complaint and directed us to Sgt. Neville Gittens in the department’s press office, who didn’t return calls by this afternoon.

But an inquiry from the controller responding to the complaint revealed that previously, applicants who failed the physical ability test weren’t allowed to participate in the oral interview. The exam period that inspired the complaint, however, was amended to allow candidates who passed the written examination to join an eligible list and improve their physical fitness in the interim before retaking that portion of the test within two years.

Investigators didn’t conclude that any rules were violated, but there’s no doubt San Francisco is desperate for new officers.

Fun with whistleblowers! Who’s callin’ out misbehavin’ bureaucrats?

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By G.W. Schulz

That’s right friends! It’s time again for another trip to the section of the local controller’s Web site containing summaries of the whistleblower complaints received by the city over the last several months. The city closed 153 complaints with investigations out of 313 contacts during the ’06 fiscal year.

Who’s stashing beer in a city-owned vehicle? Who’s doin’ dope on the job?

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When I first began reporting full time at the Guardian last year, former staff writer A.C. Thompson showed me where to find the controller’s biannual reports listing some of the investigations that office regularly conducted in response to calls from whistleblowers.

Hungry reporters have scandalous love affairs with pretty much anything coming out of their local controller’s office. It’s a great place to find story ideas, from how much city managers are getting paid to who’s receiving giant contracts to plant trees in city parks and build train stations.

At the time, A.C. and I tried to sunshine documents directly related to the whistleblower investigations, but after haggling with the controller’s office a bit, they finally told us that such a release could potentially compromise the otherwise anonymous identities of the callers. That’s pretty reasonable, actually, and you can still go straight to the agency from which the allegations originated and sunshine info that way. (Let us know if you find anything, and as always, don’t hesitate to bring your whistle straight to the Guardian’s headquarters at 135 Mississippi St. and blow it loud and proud!)

For now, we’ll bring you a summary of the complaints from the city’s newest report:

Day’s dilemma

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› gwschulz@sfbg.com

One investigation by the District Attorney’s Office is enough of a headache for City College of San Francisco. But two?

The Guardian learned that just days before the November 2005 election, in which City College asked voters for $246.3 million in bond money to continue a series of capital works projects, the office of Vice Chancellor Peter Goldstein received a letter from investigators requesting detailed information about a land transaction that took place in Chinatown earlier that year.

At least three of the school’s elected trustees don’t recall being informed by Chancellor Phil Day about the probe, setting off new concerns after we alerted officials about the letter, which the Guardian obtained. The DA’s Office is also investigating potential laundering of public funds into campaign donations by college officials in connection with that bond campaign.

"It puts a further cloud on the college," trustee Julio Ramos told us. "Presumably the statute of limitations has not run on the transaction, so what’s going on here? I’m concerned because no one ever informed us."

Two other trustees, Milton Marks and board president Anita Grier, told us they don’t remember being told of the inquest.

"We do have to give them some leeway to operate the college without informing us of everything," Marks said. "But when the district attorney is asking questions about something that’s coming from a board action, why wouldn’t we have to know about it as early as possible? It’s kind of indefensible."

But Day fervently insisted that the board was informed of the letter during a closed-session meeting the same month the letter was received and that Ramos and Marks simply weren’t there. Day had no explanation for why Grier couldn’t recall it, but trustees Rodel Rodis, Natalie Berg, and Lawrence Wong and former trustee Johnnie Carter all confirmed they’d been told about it. Day also said the school had never heard back from the DA’s office after it produced all of the requested documents.

"I had even forgot about the fact that we had this initial inquiry back then," Day told us. "I had totally removed it from my brain and forgotten about it completely."

Either way, this is the first the public has heard of the DA’s interest in City College’s land deals. Debbie Mesloh, a spokesperson for District Attorney Kamala Harris, told us she could neither confirm nor deny that any such investigation was taking place, although the letter confirms that an investigation was opened.

The DA this year began an inquiry into City College after the San Francisco Chronicle revealed that the school had used a $10,000 lease payment from a business tenant to help bankroll a campaign committee formed for the purpose of promoting the 2005 bond election, City College’s third since 1997.

But we now know that the DA began snooping around the college’s land purchases in October 2005, when Goldstein was asked for escrow documents, property appraisals, memos, and board minutes concerning the school’s purchase of two lots in Chinatown at the corner of Kearny and Washington streets for a long-planned (and now vastly over budget) campus.

The Guardian has also obtained a pile of documents detailing months of real estate negotiations between the college and politically connected Chinatown businessman Pius Lee, who owned one of the lots and had an option to buy a neighboring and much larger tract.

The construction of the new Chinatown–<\d>North Beach campus hasn’t gone smoothly for the college or voters. The school originally used $5.8 million to buy property in the neighborhood using bond money that voters authorized in 1997. Voters were then asked for $45 million in 2001 to build the campus, with construction expected to begin in 2003.

But Day’s ambitions led to clashes with Chinatown residents after the original plan — slated for an area facing Columbus Avenue on the other side of the block from where City College now hopes to build — called for demolishing a historic building and low-income apartments housing elderly tenants.

The school entered a legal settlement promising to preserve the Columbo Building and relocate the nearby Fong Building’s tenants. In 2005, however, it hastily decided incorporating that work would be "infeasible" and turned to Lee for help in finding a new location.

Lee (who did not return our calls) told the college he’d give up a sliver of land he owned on the other side of the block and also help it secure the much larger lot nearby owned by a Taiwanese company, Fantec Development Corp., with which Lee had a long business relationship.

The school paid Lee $1.9 million for a strip of parking lot 18 feet wide, even though an appraisal that City College received placed its market value at $1.1 million, records show. (San Francisco County assessed it at $267,000 in 2004 for tax purposes. The neighboring, much larger piece of land, also a parking lot, was assessed at $1.5 million.) During early negotiations, records show, the college offered $785,000 for Lee’s property and $4.5 million for Fantec’s, but in the end it wound up paying much more — a total of $8.7 million in bond money for both.

Yet it’s not clear precisely what investigators were looking into, what they found, or whether the investigation is still open.

"The properties were not available for anything less than the price we paid for them," Goldstein told us. "That’s what the sellers demanded in order to sell their properties…. Pius drove a very hard deal and demanded what I would consider to be the maximum possible price for his property that we could defend."

Ground still hasn’t been broken on the school’s Chinatown dream, and in the interim, as we’ve reported recently, the estimated costs have ballooned from $75 million to $122 million, an increase of 62 percent. As a result, the school has chosen to gut some projects authorized by voters to keep this and other favored proposals alive (see "The City College Shell Game," 7/4/07).

The Board of Trustees is slated to vote next month on whether to certify the campus’s environmental documents and whether the project should be exempt from building height limits in the neighborhood.<\!s>*

Press misses out on Cal/OSHA probes

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A near-fatal tragedy in Nob Hill last March briefly grabbed headlines when emergency personnel had to help free two workers from compressed debris after the wall of a garage collapsed around them.

Two other laborers escaped serious injury, but brothers 23-year-old Roberto Galiano and 41-year-old Maximiliano Galiano were buried up to their waist and knees respectively (one had to be extricated by the fire department). All four were taken to San Francisco General Hospital.

The vacant three-story apartment building on California Street where they were working had been awaiting renovation since a 2006 fire, and the four workers were doing foundation work with a jackhammer in a confined corner of the garage.

The accident made for great spot news, of course, and the Chronicle, the Examiner, KTVU and KPIX all posted brief stories on it immediately. They were each sure to note that California’s Division of Occupational Safety and Health (known better as Cal/OSHA) was probing the incident.

None of them followed up, however – which is not uncommon when occupational safety violations are handed out to employers long after cameras have departed from the scene. And the story points to one of the great failures of news media coverage of workplace safety issues.

Two months after the Nob Hill accident, Cal/OSHA fined Pacifica-based Doré Construction $13,000 for among other things allegedly failing to provide an adequate protective system to prevent the cave-in, i.e. not shoring up the garage’s walls properly, according to public records we obtained. The company was also fined for not having an expert on-site to regularly inspect the garage and ensure it wasn’t susceptible to collapse as they worked. Building inspection records show that the excavation work was being performed without a shoring permit.

Doré had been hired by the building’s owner in August of 2006 to do more than half-a-million dollars in rehab work to the structure.

The contractor immediately appealed the fines from Cal/OSHA, and since such cases are backlogged across the state, it could be years before the public actually sees the results. (Anthony Doré, owner of the construction company, told us he needed to contact his lawyer before answering questions, but we never heard back from him.)

Limited reporting on workplace safety incidents produces a fractured view of the regulatory system surrounding occupational hazards. While headlines that do get around to revealing Cal/OSHA fines after an investigation is complete lend a sense of finality to an accident, employers routinely appeal the fines, and with no follow-ups from reporters, the public is often blithely unaware of what employers actually end up paying.

Last year we reported on the fatality of an ironworker named Miguel Rodriquez at the Richmond-San Rafael Bridge, which at that time was undergoing a $760 million retrofit (see “Lessons from the bridge,” 11/14/2006).

Again the initial accident was reported by several local outlets, along with the subsequent announcement of an investigation by Cal/OSHA, but the larger picture of what took place that day and what the contractor ultimately paid for the fines turned out to be far more interesting.

Rodriguez was killed in 2004 after another worker lowered an 1,800-pound steel frame from a height of 80 feet using a pneumatic winch that had gone out of production in the 1940s, according to an account in public records. The winch’s brake slipped, sending the frame crashing into a wood platform on which Rodriquez was standing. He was bounced into the air and sent through the hole created by the load, first hitting his head before dropping to the waves below.

While capturing the full story would have required a little digging, its breadth appeared later in publicly available civil-court depositions that lucidly described the accident.

Cal/OSHA eventually fined the prime contractor on the bridge, Tutor-Saliba/Koch/Tidewater, $18,000, alleging that the worker operating the winch wasn’t properly trained and was only using its brake to control the winch when it should have also been in gear. But public records today show that the joint venture appealed the decision and was later required by an administrative judge to pay just $300 of the fine.

The judge, Bref French, ruled in May of this year that indeed the winch’s operator had not been given proper instruction on the machinery as required by law, according to court records. But, French countered that Cal/OSHA had not proved Tutor-Saliba was aware that the training failure would almost undoubtedly result in serious physical harm or death, a key legal threshold that changed the nature of the penalties dramatically.

“The evidence must, at a minimum, show the types of injuries that would more likely than not result from the violative conditions,” French wrote.

This week, we reported on a carpenter named Kevin Noah who accidentally fell to his death from the Golden Gate Bridge while working on a multimillion-dollar retrofit project there in 2002. Brief news reports in the Chron announced the tragedy including a follow up that explained how Shimmick-Obayashi was fined $26,000 by Cal/OSHA.

Shimmick-Obayashi, however, never actually had to pay a thing, because as we reported, four years after the accident, a judge ruled on appeal that Cal/OSHA had not printed the contractor’s full legal name on the original citations. The judge, Barbara Steinhardt-Carter, dismissed the penalties without ever considering the merits of the case.

Two construction contractors that escaped Cal/OSHA fines aren’t new to business in San Francisco

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By G.W. Schulz

This week we posted a story about two contractors hired by the Golden Gate Bridge Highway and Transportation District in 2001 to complete phase two of its ongoing (and over-budget) retrofit.

The original contract was for $122 million, but a spokesperson for the bridge told us this week that the joint venture formed by two contractors to bid on the job, Shimmick-Obayashi, would actually earn more than $150 million for the work, which is almost finished.

Our story explains that following the accidental death of a carpenter named Kevin Noah, Shimmick-Obayashi was fined $26,000 by Cal/OSHA for allegedly failing to properly rig Noah’s fall protection and also for not providing workers with scaffolding to stand on where the footing was less than 20 inches wide.

But Shimmick-Obayashi never paid the fines, because on appeal three years later, a lawyer from the company argued that the original citation didn’t contain its full legal name. An administrative judge bought the claim and tossed all of the citations.

What we didn’t have space for in the story was explaining the extent of the construction work both companies have conducted in the Bay Area.

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60-story Millennium Tower

Courting the absurd

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Click here to read about how the mainstream press fumbled on the Cal/OSHA probes

› gwschulz@sfbg.com

It didn’t matter how soon paramedics arrived. Kevin Noah, a 42-year-old carpenter with three sons, had no chance. The accidental 50-foot plunge from his perch on the Golden Gate Bridge killed him immediately.

Noah’s dizzyingly high station was a mere cross section of rebar — the slender iron braids that are often seen protruding from construction sites and provide a structure with skeletal support — inside an anchorage house located on a landbound portion of the bridge’s southern end.

Moments before on that August 2002 morning, Noah had been performing his normal duties, receiving planks of wood from another worker for use in forming a temporary frame to contain a wall of fresh concrete. The bridge was a year into phase two of its multimillion-dollar retrofit, which today is nearly complete.

Suddenly, the clip on Noah’s brace slid off the edge of an open-ended piece of rebar, and a nearby worker looked up just in time to see Noah’s body collide with the extended boom of an industrial cherry picker before falling the rest of the way to the ground, according to an account in public workplace-safety records.

In February 2003, Cal/OSHA, of California’s Division of Occupational Safety and Health, concluded its investigation and penalized the retrofit’s prime contractor, joint venture Shimmick-Obayashi, for, among other things, allegedly failing to properly rig Noah’s fall protection and not providing workers with scaffolding to stand on in construction areas where the footing was less than 20 inches wide. Fines for the violations — three of them designated by the agency as serious — totaled more than $26,000.

But Shimmick-Obayashi wouldn’t pay a dime.

The outfit immediately turned to the Cal/OSHA Appeals Board, and since such cases are backlogged statewide, the matter didn’t reach an administrative judge until this year, when attorneys for Shimmick-Obayashi presented a peculiar defense. Cal/OSHA, they argued, sent the company citations through the mail that failed to list the full legal name of the company: the mailings were addressed to Shimmick-Obayashi instead of Shimmick Construction Company, Inc./Obayashi Corporation, Joint Venture.

The misstatement was akin to a cop failing to note "Esq." or "Jr." on a parking ticket. Cal/OSHA pleaded with the judge, Barbara Steinhardt-Carter, that "it is against civil law, board precedent, and public policy to dismiss this matter based on a minor technical fault that misled no one and caused no prejudice."

Steinhardt-Carter, however, bought the company’s claim and ruled earlier this year that Shimmick-Obayashi was liable for none of the fines, even though Cal/OSHA got the name it used from the company’s business cards.

Throughout a three-year period during which the parties exchanged memos, motions, and discovery material, the contractor’s lawyers never mentioned a problem with the original citations, Cal/OSHA spokesperson Dean Fryer told the Guardian, and variations of the name Shimmick-Obayashi appear on several court documents. The move was a last-minute Hail Mary by a cunning industry lawyer who represents several major players in the business. And it worked.

"The outcome of this case is really surprising and disappointing to our staff," Fryer said. "They went through a long and thorough investigative process, and their work is now basically disposed of."

That Shimmick-Obayashi attorney, Robert D. Peterson, knows more about workplace-safety laws than most. He literally wrote the Cal/OSHA handbook commonly used by employers today and served as chief counsel to the appeals board until 1978. That’s when he established his own law firm and began representing large-scale employers in occupational-safety and workers’ compensation proceedings.

"The bottom line is, if the division has a responsibility to identify correctly the employer that it’s alleging created a violation of a safety order [and] it doesn’t do that, then the citation won’t stand the light of day," Peterson told the Guardian. "Apparently, they didn’t do that. It’s a pretty simple thing to do."

Mammoth civil engineering concerns commonly form temporary partnerships, as several have done to bid on the half-dozen Bay Area bridge retrofit projects initiated by the state at a cost of billions of dollars since the Loma Prieta earthquake rattled the coastline in 1989.

Shimmick-Obayashi won its $122 million phase two contract in 2001 to replace the Golden Gate Bridge’s steel support towers and reinforce its pylons. That came after phase one more than doubled in cost to $71 million by the time it was completed that year under another contractor. All told, Shimmick-Obayashi will earn more than $150 million following a series of change orders, a spokesperson for the bridge agency told us.

The joint venture’s initial bid beat out those of four other firms, including the politically well-connected Tutor-Saliba Corp., which later earned $760 million in a partnership with two other companies to reinforce the Richmond–<\d>San Rafael Bridge. We’ve previously reported on the dozens of injuries and the three deaths that have occurred during that project (see "Lessons from the Bridge," 11/14/06).

Obayashi on its own has had a string of run-ins with Cal/OSHA in recent years. Last March regulators hit its local housing construction subsidiary with $27,000 in fines for allegedly failing to maintain proper railings at a site in downtown Oakland, according to a federal Occupational Safety and Health Administration database analysis. The company is currently fighting those penalties. In February it was fined $6,400 for an alleged lack of railings at a project in the Bayview. Overall, the company has $60,475 in statewide open Cal/OSHA penalty cases dating to 2005.

Shimmick’s cases are few since 2000, but in the middle of last year, Cal/OSHA issued the firm two serious citations totaling $36,000 in fines after an aerial lift carrying an ironworker reportedly fell off a 34-inch light-rail platform during construction of the Muni’s T Third line, "ejecting the employee into the fast lane of traffic." The 52-year-old man was taken to San Francisco General Hospital with a serious skull fracture. A safety director for Shimmick, Ike Riser, argued that despite the accident, Shimmick has one of the best safety programs in the state.

The incentive to keep even small settlements from blemishing a safety record is huge for contractors because they can lead to the escalation of insurance rates and make bidders less competitive. Cal/OSHA’s Fryer said that while Shimmick and Obayashi have faced serious recent incidents, together they have had relatively few problems on the Golden Gate Bridge.

"It doesn’t appear with the joint venture that there is really a pattern of concern," he said. "It’s just that this specific incident resulted in the fatality of a worker, when it could have been prevented."

Noah’s mother, Sandra, told us that her son began doing carpentry at age 16 and always preferred working on big jobs. She was unaware of the ruling until we reached her, long after Cal/OSHA first cited the contractor, but she believes Shimmick-Obayashi deserved the penalties.

"To leave three sons behind," she said, "that’s the real tragedy."<\!s>*

Ethics equity

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› news@sfbg.com

In the 2003 mayor’s race, Gavin Newsom’s campaign outspent Matt Gonzalez’s nearly six to one, shattering all previous city spending records and leaving the campaign committee with a $600,000 debt that wasn’t cleared for three years.

An apparent plan to pay down that debt illegally with money raised by a separate unregulated inaugural committee was the subject of several Guardian stories at the time (see “Newsom’s Funny Money,” 2/11/04) and corrective actions by Newsom treasurer Jim Sutton, although top San Francisco Ethics Commission officials tried to cover it up rather than investigate it.

It was one of several Newsom-campaign irregularities that raised red flags, including the return of dozens of checks by contributors who had exceeded the $500 limit, the failure to notify regulators in a timely fashion that the campaign had broken a voluntary spending cap, and issues related to whether the heavy campaign debt should have been considered a loan and regulated as such.

So guess whose campaign has recently been investigated and fined? And guess whose has never been scrutinized by Ethics Commission officials, who claim they don’t have enough resources to do a “global canvas” of all the campaigns from 2003, as they’ve traditionally done each year?

Gonzalez campaign treasurers Randy Knox and Enrique Pearce this month agreed to pay $3,300 in penalties to the Ethics Commission over 234 names of contributors that were filed with missing or incomplete donor information, 8 percent of the total. The agency began its review three years after it received an anonymous complaint in the days leading up to the runoff election, exactly when the Newsom camp dished the same allegations to reporters.

“It’s my fault, but it was inadvertent and not deliberate misfeasance,” Knox told the Guardian recently. The Ethics Commission concluded that no evidence proved a willful attempt to defraud the public and that most of the donors had failed to cite their street addresses or to provide complete employer information.

But to Knox and Ethics reformers we’ve interviewed for a recent series on the commission, there’s an important issue of fairness involved in this matter. Gonzalez, who did not return our calls seeking comment, was contemputf8g another run for mayor last year when he was contacted by Ethics officials and threatened with a $30,000 fine for violations that were more than three years old. “It was clearly politically motivated, to clear the field for the mayor’s race,” Knox said.

Yet even if that wasn’t the case, why didn’t Ethics Commission staffers review the Newsom campaign after they decided to pursue Gonzalez? And why did Executive Director John St. Croix order staffers not to do the normal global canvas of campaign documents for 2003 — and only 2003 — claiming the agency didn’t have enough resources and needed to “triage” its work?

“It seems odd that we would allow an anonymous complaint, which is informal, to create an exception to our triage order for 2003, especially since the [percentage] of Gonzalez contributions with info errors was apparently less than the state standard for filing officers to require mandatory amendments,” Ethics officer Oliver Luby noted to agency bosses earlier this month, according to internal memos the Guardian obtained through a Sunshine Ordinance request.

St. Croix, for his part, didn’t take over the agency until a year after the 2003 election. He told the Guardian that dozens of other complaints needed to be investigated too, but his office, with only one investigator, couldn’t do so until years after the fact.

“There was a point in 2006 where I said we’re not going to go back and begin anything new for election years prior to 2004,” St. Croix acknowledged. “We had so many backlogs. We were just hopelessly mired, and we kind of needed a fresh start.”

Sutton did not return our calls for comment, but Newsom’s campaign manager then and now, Eric Jaye, told us, “I’m empathetic to [the Gonzalez campaign]. I’m sure they weren’t intentional errors.”

He added that just because the Ethics Commission didn’t investigate the Newsom campaign after the election doesn’t mean the mayor got a free ride. “I feel like everything we do is audited and scrutinized,” Jaye said, noting that the campaign was fined $2,500 by the California Fair Political Practices Commission during the race for an illegal mailer.

Still, even if the commission won’t disclose ongoing investigations, as far as the public knows right now, the Ethics Commission has repeatedly ignored problems with the 2003 Newsom campaign and others managed by Sutton. Consider:

•Several entities affiliated with a real estate outfit called Olympic View Realty made a total of $14,000 in contributions to the Newsom campaign, but filings didn’t reflect the otherwise clear association. “Newsom’s failure to report correct cumulative-to-date amounts is an ongoing violation of state law,” Luby wrote in the aforementioned memo.

•The Newsom campaign’s $600,000 in postelection debt wasn’t paid off completely until late last year, much of it being carried by Jaye’s consulting firm and Sutton. Former Ethics staffer and commissioner Joe Lynn believes that could amount to an unreported loan to the campaign. “If Ethics was doing its job, it would investigate Newsom’s use of accrued debt,” Lynn told us.

•The Building Owners and Managers Association of San Francisco — a key Newsom supporter — urged members in December 2003 to make unlimited donations to Newsom’s inaugural committee that would also be used, it said, to help cover “transition activities,” which should legally be subject to contribution limits. But Ethics, as far as we can tell, never probed whether inaugural committee funds were used inappropriately for the new mayor’s transition to room 200.

•Newsom may have collected contributions exceeding the legal limit. During runoff elections, candidates are allowed to accept additional contributions from individual donors who have otherwise reached the maximum of $500. The total then permitted would be $750, which can be used to cover debt from the general election. As soon as general-election debt is retired, however, the candidate can no longer take advantage of the increased limit. But as far as the public can tell, there was no analysis conducted by Ethics to determine if Newsom’s campaign continued to collect $750 checks after having paid down its general-election debt.

St. Croix said most pending enforcement cases, more than ever before, were initiated by staff rather than complainants and the ideal scenario would be to emphasize aggressive earlier sweeps of all the campaigns. But unfortunately, he said, “we’re far away from that.”*

 

At the crossroads

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Part three in a Guardian series

› gwschulz@sfbg.com

San Francisco Ethics Commission executive director John St. Croix has admitted that his office knew in 2005 about the alleged laundering of public money into a San Francisco City College bond election campaign — well before the story broke in newspapers in April — but did nothing to investigate.

That startling revelation knits together two concurrent series that the Guardian has been running for the past two weeks: one on City College’s deceptive and unaccountable use of bond money and another on the uneasiness local watchdogs feel about the Ethics Commission’s ability and willingness to mete out balanced punishment to elections-law violators.

When news reports surfaced in April that City College allegedly had diverted up to $30,000 in public money to a bond election campaign committee, Chancellor Phil Day moved quickly to limit the fallout. So did independently elected trustee Rodel Rodis, who along with six other board members is responsible for controlling and managing the San Francisco Community College District.

During meetings organized that month to address the matter, Day came clean and blamed everything on a "relatively new" assistant vice chancellor. At least two trustees, one of whom had been recently elected, still wanted to know more about why it was allowed to happen. Rodis, on the other hand, complained that hiring an independent investigator at a cost of $75,000 to look into the matter was too expensive and framed the stories — written by San Francisco Chronicle investigate reporter Lance Williams — as an unfair attack on the college.

"Let’s be mindful that we’re still in a budget crisis and we still need to watch taxpayer money," Rodis said at one of the meetings.

Unlike Rodis, District Attorney Kamala Harris didn’t treat the allegations as insignificant and is now reportedly probing possible criminal violations in connection with the scandal. The investigation, Williams wrote recently, includes contributions made to the committee by contractors that did recent business with the school.

But where was the Ethics Commission during all of this? The controversy raises serious questions about why the agency never took any action against City College when, as its mission statement declares, its responsibility is to "actively enforce all ethics laws and rules, including campaign finance and open government laws."

Late in the commission’s July 9 meeting, St. Croix made the stunning admission that although his office knew about the allegations surrounding City College’s dubious handling of public funds all the way back in 2005, for some inexplicable reason it did nothing.

Staff shortages and poor financing have plagued the Ethics Commission since voters created it in 1993. Although the number of staffers has doubled during his three-year tenure, St. Croix nonetheless told the Guardian recently that his agency remains dependent on the public to help expose political candidates and campaign committees that break the law.

"We still rely on people and the city being watchdogs," St. Croix told us. "We’re supposed to be the eyes and ears for a lot of things, but we’re still extremely limited."

In this case, however, St. Croix’s office was well aware of allegations that City College bureaucrats had misappropriated public funds. The school’s Board of Trustees, along with Day’s office, created the Committee to Support Our City College in 2005 to convince voters to give the school $246.3 million in bond money to continue with a slate of capital works projects that began in 1997 and now are costing hundreds of millions of dollars more than anticipated.

The owner of a motorcycle training school claimed in a December 2005 letter to the Ethics Commission that he was told by the college to make a rent check for the regular use of school property payable to the committee instead of the school itself. Amazingly, the Ethics Commission pondered contacting the state’s Fair Political Practices Commission to disclose the allegations, which is the least it should have done, but never actually did so, as St. Croix has acknowledged only now.

"I take responsibility for that," St. Croix told us. "I don’t know who actually dropped the ball. But at the time we had less staff and there were a lot of things we were supposed to do and we weren’t doing."

Nor did the Ethics Commission contact the college to demand that it amend its campaign filings from that year to reflect the true source of that $10,000 payment and acknowledge itself rather than the motorcycle training school as a major contributor to the bond committee. St. Croix figured that could happen at the conclusion of the FPPC’s inquiry. Of course, the FPPC didn’t know about the allegations, at least not until the Ethics Commission finally contacted it in May, following the Chronicle‘s front-page stories.

The Ethics Commission’s lax approach to City College oversight also extends to trustees like Rodis, who has his own apparent campaign finance violations from his 2004 reelection campaign. That year, records show, his campaign failed to turn in three key election filings required to ensure that before heading to the ballot box, voters have a chance to see where candidates are getting their campaign money from. The commission sent his campaign several warning letters; just one of the filings finally arrived nine months later.

The trustee pointed to a campaign staffer when we contacted him regarding the tardy campaign statements. "We had someone working on the campaign who was supposed to do that," Rodis told us. "He indicated to us that everything was in order. We relied on him. We paid him. And then we found out later that he didn’t do what he was supposed to do…. It was one of those things that happen when you trust people."

The filing Rodis did manage to turn in shows that of the more than $44,000 he raised for his reelection effort that year, at least $1,700 had no identified donors, and other donations were marred by confusing data entry errors. An internal Ethics memo obtained by the Guardian that discusses the Rodis reelection campaign committee concludes that its poor reporting "appears to be a matter of willfulness and disregard for the law" and what belated filings do exist "present significant data problems." According to the memo, "Based on the record, significant questions remain regarding the true facts of the committee’s financing."

Rodis in 2004 won reelection to the board for the fourth time since he first became a trustee in 1991. According to our conservative estimates based only on the late filings, he could be liable for thousands of dollars in fines. *

ACCREDITATION REPORT BLASTS NEW COLLEGE: “Clear and egregious violations of institutional integrity, academic integrity”

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By G.W. Schulz

San Francisco’s New College of California has a culture of administrative “sloppiness and arbitrariness” in addition to flawed academic curricula, according to a report released this month by an accrediting outfit based in Alameda and obtained by the Guardian.

The accrediting commission for the Western Association of Schools and Colleges concluded following a special investigation that among other things New College fails to properly maintain student files and questions persist about how well the school handles and awards scholarships and financial aid to students under federal rules and regulations.

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The group’s investigation began after it received six detailed letters alleging “various improprieties” and violations of its fundamental accreditation standards such as problems related to the fair and equitable treatment of students and the college’s ability to maintain operational integrity through sound business practices.

New College has long teetered on the brink of financial disaster, and according to the report, nothing’s changed and the school has failed even to make improvements since 2002 when the commission concluded that New College did not have stable revenues or effective financial controls. In fact, the commission learned that New College’s money woes had “materially worsened in the last year” since it bought two properties “without necessary analysis and planning.”

As a result of the investigation, New College has been placed on probation and will now be “subject to special scrutiny and any new site or degree program is subject to review through WASC’s substantive change process.”

How’s the mayor’s Hump Day going!? Oooooh, not so good

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By G.W. Schulz

> Homicides are up 20 percent this year over the same time last year, and much of it cannot be blamed on gang violence, according to the Chron, which suggests, like it or not, that City Attorney Dennis Herrera’s gang injunctions can go only so far. It’s hardly July, but we’ll put good money on any bet that the mayor won’t be cheerfully taking credit for the city’s homicide rate next January. As usual, we should make clear that this conversation still doesn’t take into account nonfatal shooting injuries. San Francisco General does a remarkable job saving people who’ve been shot, meaning the homicide rate is not really a reliable indicator by itself of how well the city’s doing on street-level violence.

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Who’s following the money?

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Part two in a Guardian series
Click here for part one

› gwschulz@sfbg.com

David Duer is proud of the volunteer work he’s done with the West Contra Costa Unified School District. He graduated from the area’s school system, as did his kids.

So despite what was sure to be a burdensome responsibility with no pay, Duer, a development director for the UC Berkeley Library, accepted the chance to serve on a committee formed under a state mandate to monitor how the district spent $850 million in bond money authorized by voters in three elections since 2000.

"There are schools all over the district that have been renovated," Duer beams today.

The committee initially proposed meeting every quarter but soon realized that wouldn’t be nearly enough to do the job right and chose to meet monthly instead. Since 2003 it has received full-blown management audits of the school system’s performance every year, with biannual updates from independent professionals not beholden to district bureaucrats.

The story of San Francisco’s Community College District could not be more different.

The oversight committee that’s charged with monitoring $560 million in bond spending has never seen an expansive performance audit, just basic financial reports that show community college officials here seem to be obeying their most fundamental fiduciary duties. The panel meets three times a year for more than an hour and a half each time, and for three years it didn’t even report to the public on City College’s handling of the money, which it’s required to do annually by the state’s Education Code.

The community college committee is hardly made of Rotary volunteers and bored retirees: the list includes San Francisco treasurer José Cisneros and former San Francisco Chronicle publisher Steve Falk, now head of the local Chamber of Commerce.

But even members say the panel has fallen down on the job — and that City College officials are freely shifting around the taxpayers’ cash with little or no accountability.

The mostly decipherable performance reports that West Contra Costa citizens receive, though lengthy, track all of that district’s bond expenditures and give the area’s oversight committee of taxpayers a vivid portrait of how well the school system and its administrators are managing hundreds of millions of dollars in building improvements. Any wonkish jargon in the reports that might mystify the committee is translated in "frank" terms by the outside inspectors, Duer says, without interference from school officials.

If a contractor were to double-bill the district or demand too much in change orders after promising completion within a set price range, Duer and his colleagues would know about it, and they could make suggestions on how to fix it. If the district was doing a stellar job, that would be clear too.

"I don’t see these performance audits as punitive," Duer said. "I see them as a confirmation that the process and systems in place are working."

MORE MONEY PROBLEMS


The Guardian reported last week ("The City College Shell Game," 7/4/07) that City College’s bond projects are running an astounding $225 million over budget. As a result, school officials have returned to the Board of Trustees five times in recent years to request that a total of $130 million be reallocated from one project to another to cover the overruns, leaving some projects promised to voters with little or no funding at all. We reported on a number of examples last week, but there are plenty more:

•<\!s> The construction of a new Mission campus was supposed to begin in 2002 but didn’t get under way until well into 2005. The project is now $30 million over budget, an increase of 50 percent, and the school recently requested another $6 million diversion from other bond projects. City College originally planned to build the campus where a shuttered theater currently stands on Mission Street but later moved the site to avoid a showdown with preservationists.

•<\!s> Since 1997, City College has asked voters for a total of $61 million to renovate and remodel existing buildings and meet Americans with Disabilities Act requirements. In November 2005 it asked voters for $35 million to perform such work, but just weeks after the election, $20 million of the money was reallocated to a planned Chinatown–<\d>North Beach campus that’s now running $50 million over budget, an increase of 60 percent. That project’s ever-changing design has been heatedly challenged by everyone from the Chronicle‘s editorial board to Sup. Aaron Peskin to state senator Leland Yee.

•<\!s> Two projects for which voters authorized a combined $71 million won’t see the light of day unless the college returns to the ballot a fourth time, which school officials have discussed. The projects — a biotech learning center and a one-stop administrative shop for new students — have been drained of $42 million to save the Mission campus and an overdue Performing Arts Center, which will cost $75 million more than expected, an increase of 152 percent.

HUNTING AND PECKING


All of this irks Mara Kopp, who was appointed to City College’s oversight committee in late 2005 as a representative of the San Francisco Taxpayers Association. She’s complained openly that the school long ago should have hired auditors for the kind of far-reaching work West Contra Costa gets.

"If we received ongoing management reports, then we’d have something of substance," Kopp said. "We wouldn’t have to hunt and peck in a kind of naive, elementary way."

She is all but alone in her criticism, however, save for a small group of allies including former committee member John Rizzo and Milton Marks, one of the few voices on the independently elected Board of Trustees willing to apply tough scrutiny to Chancellor Phil Day’s office at board meetings. Green Party pol Rizzo recently became a trustee after closely beating longtime incumbent Johnnie Carter in the November 2006 board race.

Day has long argued that the school’s attorneys don’t believe such audits are required under Proposition 39, a 2000 state ballot measure that lowered the threshold for passing local school bonds. Prop. 39 required the formation of local citizens’ bond oversight committees.

Marks has questioned the strength of City College’s oversight committee and the lack of performance audits since at least 2005, but not until earlier this year were he and Rizzo able to force a resolution demanding the inspections, and now Day claims to welcome a management review. The school will bid out its first audit soon.

"The bottom line is, a performance audit as opposed to a financial audit would determine whether or not funds are being expended in the most efficient, effective, and economical manner instead of just adding up these funds and saying, ‘Here’s how much we expended and for what,’<\!s>" said Harvey Rose, a respected local auditor who’s reviewed city agencies and analyzed San Francisco’s annual budget for 35 years.

West Contra Costa concluded that Prop. 39 does require extensive managements audits. The committee even decided to include a $150 million bond election in 2000 in the scope of its work, although that wasn’t required, to ensure all the money was still being spent efficiently.

Duer said it doesn’t matter to him what the letter of the law requires. "It was always assumed with our work that this is something we had to have," he said.

The Los Angeles Community College District made the same assumption. Other districts statewide, however, appear to have interpreted Prop. 39 the same way City College has. And the Attorney General’s Office has never issued an opinion clarifying the matter.

Meanwhile, City College officials blame the millions of dollars in outsize project costs on inflation, a globally increased demand for steel and concrete, and slow-moving state regulators who must approve architectural designs.

"I understand both the college as well as the community would like to see us complete every single project we’ve proposed," Vice Chancellor Peter Goldstein told us recently. "We absolutely share that desire. The reality of cost increases has forced us to go back and look at our resources and reallocate in order to keep major projects going forward."

But Kopp and company argue that much earlier performance inspections would have revealed to the oversight committee and trustees where the increase in expenses came from with absolute certainty. That way, no one would have to rely exclusively on the glitzy project presentations made by Day and Goldstein that are often little more than slide shows with quotes from prominent business journals decrying the rising cost of construction materials. Trustee Marks has moaned repeatedly at board meetings that he doesn’t feel informed enough to vote on major reallocations, and his constant questions haven’t always made him popular.

"I think there’s this feeling that the board should not be adversarial," Marks said. "But I think by the nature of how things are set up, we have to be…. We have to look out for the best interests of the public at large."

Not everything’s rosy in West Contra Costa, of course. Anton Jungherr, a former San Francisco Unified School District official, sat on the West Contra Costa oversight committee for four years and fumed in an interview that the district didn’t take seriously the committee’s regular recommendations. He wants to form a statewide association of oversight committees to arm citizens with the information they need to track bond expenditures.

"There are legitimate reasons for change orders, but you have to analyze them and understand what the reasons are and then take the appropriate oversight action," Jungherr said.

But cost overruns in West Contra Costa still pale when compared with those at City College. Jungherr said that district has experienced about $100 million in unexpected costs on $850 million in projects undertaken since 2000, substantially less than what City College faces despite hundreds of millions of dollars more in bond projects.

Kopp still hopes City College’s oversight committee will build more muscle.

"If they were to show us documents they used themselves in monitoring all these things, that could substitute as long as the information was relevant and honest," Kopp said. "But it’s really been quite shallow all along."<\!s>*

Holy shit! Josh wolf is running for mayor!

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By G.W. Schulz

So, people want to hate Josh Wolf for being what they perceive as a lawless anarchist. But he’s just so damn polite. He defies virtually every useless assumption about the actual history of anarchism (still little-known among many Americans).

Wolf is like the consummate Boy Scout, but with badges that feature political slogans and old crustcore bands instead. My mom would love this guy’s manners — the way he politely addresses everyone he communicates with and doesn’t seem to really have a hostile bone in his body.

And now he’s running for mayor. Jeez, Wolf’s already spent half the year in prison, and now he has to run against The Douchebag, because no one else wants to do it? (I have good reason for nicknaming Gavin “The Douchebag” — he’s always reminded me of the elitist bad guy from Better Off Dead who stole John Cusack’s girlfriend.) Good luck, Joshua. At least someone’s going to make The Douchbag work for it. Jello Biafra couldn’t even claim a prison stint when he ran for mayor back in 1979.

joshwolf1.jpg
The Gentleman*
vs.
The Douchebag
mayor1.jpg
Challenge to be reffed by Jello
jello1.jpg
“There’s always room for Jello”

*Photo from www.joshwolf.net

The City College shell game

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Part one in a Guardian series

› gwschulz@sfbg.com

The motto of San Francisco’s community college is "The truth will set you free."

For taxpayers, that’s a painful irony. Since 1997, the district has moved around $130 million in bond money in a fiscal shell game, taking funds that the voters were told would go to one set of projects and spending the money on others.

The half-billion-dollar bond program is now at least $225 million over budget, in part because of what the school admits was shoddy planning, and City College is considering asking voters to approve yet another set of bonds to catch up.

And all of this happened without a detailed performance audit.

Among the transfers and overruns we’ve discovered in a review of the bond program:

•<\!s>City College made up for a planned gym’s mammoth budget shortfalls by transferring more than $53 million from other projects, like the new Performing Arts Center, improvements to the Balboa Reservoir (that massive, sunken eyesore of a parking lot west of the Ocean Avenue Campus), and an academic partnership with San Francisco State University.

•<\!s>Construction on the Performing Arts Center was supposed to begin in 2004, but it’s gone nowhere. According to the school’s most recent estimates, the center now will cost $125.8 million, an increase of 152 percent from the original $50 million.

•<\!s>Two new campuses planned for the Mission and Chinatown neighborhoods are now running a combined $78 million over budget. School administrators this May requested an additional $6 million to complete the Mission campus. Plans for the Chinatown facilities were originally unveiled in 1997 to voters, who were later told construction would begin in 2006. Today the designs are mired in a political battle with neighborhood residents, and City College hasn’t broken ground on the project.

In at least one case, the school has acknowledged that a $1.3 million reallocation took place without prior authorization from its independently elected overseers, the Board of Trustees. Administrators later asked the board to consent to the transfer retroactively.

"We’re always asked to take this money and move it from here to here," complained trustee Milton Marks III, one of the few consistent critics on the board who in the past voted against such reallocations. "It may be justified…. But when I ask if there are programmatic changes, nobody can answer me."

The school calls the transfers "reallocations," and as of May the administration and the board had agreed to shift the bond money five times.

In one case, administrators asked for $70 million in transfers mere weeks after the 2005 election in which voters authorized the school to sell $246.3 million in bonds.

That January 2006 reallocation strongly suggests the office of Chancellor Phil Day knew the school wouldn’t be able to complete the projects described to voters but never corrected the ballot handbook or told the media and the public the truth.

Day agreed to a Guardian interview, then canceled it, citing a schedule conflict. But in board meetings he and his staff have insisted that the transfers were perfectly legal.

The school’s lawyers say reallocations are acceptable under Proposition 39, a state ballot measure passed by voters in 2000 that lowered the threshold in California for passing school and community college bonds.

Other districts have also relied on reallocations as the cost of construction materials has increased globally in recent years due to Hurricane Katrina and the ongoing expansion of China’s economy.

But the San Francisco school has argued the logical extreme — that it can transform voter-approved projects in virtually any way it deems necessary.

"What obligation do we have in our reallocation considerations about making sure that those things get delivered — all of those projects we listed in both [the 2001 and 2005] bond measures?" former trustee Johnnie Carter asked during a meeting Jan. 12, 2006.

"You have no obligation to complete any of those projects," Mona Patel, a bond advisor for the school, responded. "You can complete one of those projects. You can complete all of those projects or anything in between…. It’s solely within the board’s discretion."

Despite that explanation, City College’s woefully short budget projections mean the school might have to return to voters a fourth time to secure funding for two projects already promised the last time City College went to the ballot, in November 2005.

One of those planned facilities was supposed to house a stem-cell-technology training program lauded by Mayor Gavin Newsom in 2005 as a way to help locals compete for jobs in the Bay Area’s growing biotech and life-sciences research industries. The school stripped $25 million authorized by voters from that project and directed it mostly to two other projects running a combined $105 million over budget.

Marks and new board member John Rizzo have urged an expansive performance audit of the bond money, which they say is required under Prop. 39 but had never been completed.

Rizzo and Marks both told us that if unforeseen construction costs, a low number of project bidders, and the lethargy of state regulators are all problems contributing to unpredicted costs, school administrators need to come up with a plan to fix the situation. But the performance audit proposed by Rizzo and Marks would first identify which problems are most severe. Not having it, Rizzo said, "is like flying blindly. We’re just writing checks."

Peter Goldstein, vice chancellor for finance and administration, insisted to us that state law, as interpreted by the school, doesn’t require the type of audit called for by Rizzo and Marks. It simply requires that the school prove it isn’t spending money on projects not presented first to voters. He added that the reallocations weren’t simple but said he couldn’t answer from memory specific questions about the 2005 bond election, including why the school chose to pursue tens of millions of dollars in reallocations so soon afterward, in January 2006.

"They’ve been very difficult decisions for both the administration and the board," Goldstein said. "[This has] not been some kind of snap judgment. We’ve really had to search and try to make sure there wasn’t some way to contain costs otherwise."

The trustees often seem just as confused as the voters may be about the cost overruns. The trail is laid out in thousands of pages of bond proposals and ever-changing explanatory documents, all complete with glossy schematics and computer-generated students looking gleeful as they head off to class at one or another of the new facilities.

The section of City College’s Web site dedicated to its bond projects is difficult to follow. A brief summary of the projects appears in voter guides, but the full bond proposals are filed with the San Francisco Department of Elections, and you’d have to go there to copy or read the tomes, which contain a lot of qualifying paragraphs that look like this one, which refers to an academic building planned in conjunction with San Francisco State University:

"The college will aggressively pursue state and federal funding to support the ‘joint-use’ concept with San Francisco State University. If funds are not forthcoming, the ‘local’ funds will be utilized to support the construction of the new Child Care Center and the new Student Health Service Center."

Such fine-print disclaimers enabled Chancellor Day and Vice Chancellor Goldstein to later depict multimillion-dollar transfers away from academic construction as entirely legal, even though the Child Care Center and health clinic never appeared as official stand-alone projects in bond proposals presented to voters.

Between 2001 and 2005 the school asked for a total of $40 million to construct in tandem with SFSU the joint-use facility, which was slated to include new classrooms and laboratories where students could work toward bachelor’s degrees in education, health care, and child development. The project is now $26 million over budget and remains in the design phase. Since 2003 about $20 million that voters were told was going to the project has been reallocated to other projects facing increased costs.

A facilities manager at San Jose–Evergreen Community College District, Robert Dias, was incredulous when we presented our findings to him. He said he’d heard of cost overruns statewide but "not to this extent."

"We have experienced rising costs, but we planned for it," Dias said. "Construction costs were going through the roof, but we did creative things to manage it."

On the other hand, Fred Harris, vice chancellor of the California Community College System, based in Sacramento, said the figures didn’t necessarily surprise him and that the state as a result has adjusted its guidelines for what individual school districts can claim as costs.*

FIRE DRILL AT THE CHRON BUILDING!!! Oh wait, it’s just empty from all the cuts. Sorry.

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By G.W. Schulz

During a conversation we had recently with a certain interview subject regarding layoffs at the Chron, this person was sure to correct us by distinguishing between actual “layoffs” and “buyouts.” Well, sure, buyouts might taste slightly better, but they’re both still poison for your career. Just ‘cause management prefers to call them something else doesn’t make “downsizing” settle any easier.

More announced departures at the Chron, by the way, if that’s the description you’d prefer. A foreign and national correspondent named Anna Badkhen who reported from Iraq, Kashmir, Chechnya and New Orleans after Katrina is leaving for the Boston Globe. She was also a one-time Moscow bureau chief for the Chron. Romenesko picked up a memo from the Globe on the move.

Another familiar byline, Patrick Hoge, is leaving after nearly 20 years at the Chron. He wrote regularly about homelessness, health care and mental illness. Reporter Glen Martin, also with the Chron for nearly 20 years, is leaving as well.

Meanwhile, as we noted earlier, the Merc has officially announced 40 newsroom cuts. No one knows yet who’s leaving, but there will be no buyouts, we’ve gathered. Buyouts. Layoffs. Whatever they’re calling them.

Anyway, guess what! The San Jose Newspaper Guild is offering one-time grants of $500 for families caught in a financial crises as a result of the cuts! That should about cover the mortgage, utilities, groceries and the kid’s flu medicine for about, oh … a week?

chron1.jpg
Old Chron building, c. 1900

Merc announces 40 newsroom layoffs

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By G.W. Schulz

Well, it’s not the 60 or so jobs former San Mateo County Times editor John Bowman said were pending, but it’s still a big hunk of the Merc‘s newsroom. And no one can argue this will mean more news. In fact, considering reporters are asked everyday to do more with the Web (like a quick online story plus their full-length for the deadwood edition) those surviving cuts at the dailies should be getting a little pissed off by now.

On the other hand, they’re probably just grateful to still have jobs. Wonderful way to keep the rank-and-file in line. Merc reporter Pete Carey corrects our earlier numbers, too, explaining that 15 people were laid off from the paper in December while more than 50 people were bought out before the most recent round of cuts was announced. (Buyouts aren’t a dreamy alternative to layoffs, by the way, no matter how management prefers to characterize them.)

Jailhouse justice

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› gwschulz@sfbg.com

San Francisco’s popular Mike Hennessey — the longest-serving sheriff in the state after winning seven elections — likely won’t be facing a major challenger during his reelection bid this year. But a group of his deputies are being targeted for allegedly employing abusive tactics.

Six former jail inmates are charging in a civil lawsuit that they were beaten severely, left without medical attention, and forced to remain in administrative segregation for days, weeks, and even months. They originally filed suit in 2005, alleging that while in pretrial custody at various jail facilities in the city, including the Hall of Justice on Bryant Street, they were punched, kicked, or slammed by deputies from the Sheriff’s Department, which oversees the jails.

A judge, after dismissing an attempt by the deputies to have the suits tossed, ruled in December that at least four of the former inmates could take their allegations of excessive force to a jury trial. Some of the plaintiffs claim they were denied proper medical treatment for the resulting injuries, while others say they’ve endured chronic pain or injuries since the alleged attacks took place.

"The only reason these cases have come to light is because two of the inmates ended up in San Francisco General Hospital," Scot Candell, an attorney for the inmates, told the Guardian. "They were knocked unconscious."

Candell has been a criminal defense attorney in the city for 10 years, working most recently out of an aging Victorian with mismatched carpets on Webster Street. He’d never handled a civil suit before but said he took the cases, along with cocounsel Mark Marin, an attorney based in Sacramento, because the allegations represented a disturbing pattern of inmate mistreatment by the accused deputies.

He was aware of such complaints made by inmates in the past but says they were often unfounded or he chose not to take them seriously. Candell says he still believes most of the department’s deputies handle inmates appropriately. But he argues that these cases went too far and the inmates had no legitimate venue for complaining about them afterward.

"In general with people in custody, there are a lot of problems representing them both criminally and civilly," Candell told us. "They don’t have a lot of credibility. But when I saw Mr. Henderson, there was no denying that there was a problem. You don’t just get a broken back from falling out of your bed."

Earnest Henderson claims that in December 2003, following a verbal dispute with deputies involving an extension cord, three of them trapped him in a utility room, slammed him to the ground, and punched him repeatedly in the head until he slipped in and out of consciousness and was left naked in a padded cell.

He later fell to the floor twice in his cell because of a pain in his back, jail medical records show, and finally had to be transported to San Francisco General Hospital after the second fall knocked him out. There, doctors discovered a broken lower vertebra, which attorneys for the city later characterized as "minor." The city attorneys insist Henderson was inciting inmates by yelling and kicking his cell door and the deputies were merely working to contain him using only constitutionally permitted "nonlethal force."

Inmates in county custody have basically one avenue outside civil litigation for pursuing grievances against deputies alleged to have used excessive force. But the inmates complain that the Internal Affairs Division of the Sheriff’s Department didn’t thoroughly investigate their grievances, while the deputies continued working in the jail.

Voters created the Office of Citizen Complaints in 1983 to serve as an independent watchdog over the San Francisco Police Department and a place where civilians can go to protest law-enforcement misconduct. But no such equivalent exists for the Sheriff’s Department, which, in addition to managing jails, also provides security for City Hall and San Francisco’s criminal and civil courts.

Candell argues that something similar should be created for the Sheriff’s Department. Even though allegations of institutional shortcomings (such as flawed training and oversight) have been removed from the case, Candell hopes a large monetary award paid by the city’s taxpayers would prompt local lawmakers to demand greater oversight.

The suit originally charged the city and Hennessey with medical negligence and wider-ranging inmate abuse resulting from a lack of proper training for deputies. But those allegations were dismissed by Judge Vaughn Walker, who held in part that the city and Hennessey were not deliberately indifferent toward inmate grievances.

"We already know there are a bunch of allegations in this case that did not rise to a legal standing," Hennessey told the Guardian. "I believe that’s how the case will resolve itself ultimately as well."

Nonetheless, allegations by four of the six original plaintiffs, all targeting a deputy named Miguel Prado, appear likely to go to trial after brief settlement negotiations between the City Attorney’s Office and Candell deteriorated. Two other deputies, Glenn Young and Larry Napata, are also defendants in excessive-force claims made by Henderson.

Mack Woodfox alleges that in October 2005, he had an argument with Prado over a breakfast tray he was trying to give to another inmate. The two exchanged words, and Woodfox alleges the deputy removed him from the cell, took him down the hall to a different area, and punched his head and banged it into the floor.

Two days later Woodfox lost consciousness and was taken to the hospital, where doctors found he had a broken nose and broken blood vessels in his eye. Candell said the District Attorney’s Office is investigating the alleged attack on Woodfox and could bring assault charges against Prado, but a representative in the office contacted by the Guardian would neither confirm nor deny that such an investigation was taking place.

Several inmates filed declarations stating they had either seen or heard Prado attack other inmates, and two claimed Prado and other deputies beat them last year. One testified he was told by Prado to clean the cell in which Henderson’s alleged attack occurred. "There were pools of blood on the floor and a smeared bloody handprint on the wall," the inmate stated.

Michael Perez claims that in July 2004, Prado punched and kicked him after they argued over whether Perez could stay behind in a gym at the end of an exercise period to look for a screw missing from his eyeglasses. Arturo Pleitez alleges that in November 2004, Prado punched him several times, stripped off his clothes, and dunked his head in a toilet. In both instances, the city argues that the inmates assaulted Prado first, and Perez was even charged with battery and resisting arrest, but those allegations were eventually dismissed.

Messages left for deputies Napata, Young, and Prado seeking comment were not returned.

Hennessey told the Guardian that force is sometimes needed to subdue defiant inmates who threaten or attack other inmates and deputies. He told the court in a declaration that "rare" instances of excessive force do occur at the jails, and when they happen, he doesn’t hesitate to discipline or fire the deputies involved if necessary.

"It’s a difficult environment to work in…. Two-thirds or more of the people in that jail have been to state prison before," Hennessey said, referring to San Francisco’s Bryant Street jail. "Most of them are going to state prison when their time in San Francisco is done. It’s a very tense environment with very sophisticated prisoners, and the deputies have to be very sophisticated as well."

Hennessey has a reputation as a progressive who shows more compassion toward inmates than most sheriffs, but he arguably can’t oversee all of the 850 sworn employees under his supervision. Hennessey told the Guardian that he’d directed investigations into complaints about Prado’s conduct in the past, but he insisted they had not resulted in discipline, and he remains confident of all three deputies.

"Mike Hennessey is probably as good a sheriff as you’re ever going to get," said Dan Macallair, a criminal-justice expert at San Francisco State University who specializes in corrections policy. "But Mike Hennessey is one person. The Sheriff’s Department is a big bureaucracy. Law-enforcement bureaucracies tend to be very closed, and there’s a code of silence…. They don’t do well at policing themselves."

In response to the allegations, the City Attorney’s Office was sure to remind Judge Walker exactly what the court was dealing with: hardened criminals. Perez, a purported member of the Norteños gang, is now in San Quentin doing 25 years to life for murder. Henderson was awaiting trial on charges of attempted murder and eventually pled guilty to robbery.

But not everyone in jail is prison bound. All of Candell’s clients were in pretrial custody at the time of their alleged abuses and simply too poor to afford bail before they had their day in court. Woodfox was eventually released after attempted murder and carjacking charges against him were dismissed.

"The bad guards are the ones that control the culture within the institution typically," Macallair told us, noting that he supports the establishment of outside oversight bodies. "The good people don’t speak up…. There’s always going to be problems in correctional institutions. It’s just their nature. But you can at least help promote a humane, better-managed environment when there’s accountability and monitoring."<\!s>

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