J.B. Powell

Back to Oakland?

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› jesse@sfbg.com

Big money is flowing into an Oakland City Council campaign, fueling rumors that state Senate President Don Perata might be preparing for a Willie Brown–style move from Sacramento kingpin to Bay Area mayor.

Perata’s former chief of staff Kerry Hamill is vying for the city’s at-large council seat, running against AC Transit board member Rebecca Kaplan. Two independent expenditure committees with possible links to Perata are laying out tens of thousands of dollars on Hamill’s behalf. Sources say Perata has been fundraising for his ex-staffer, as has Oakland City Council President Ignacio De La Fuente, a longtime Perata loyalist. And it appears one of De La Fuente’s efforts to raise cash may have skirted the boundaries of state law.

The stakes for De La Fuente are definitely high. Hamill’s election would help him retain his role as president of the closely divided council. But the scuttlebutt around Oakland is that a successful Hamill candidacy could have bigger implications. It might just pave the way for something many local observers see as inevitable: a Perata run for mayor.

Current Mayor Ron Dellums is reeling from a spike in violent crime, huge budget deficits, and a detached leadership style, all of which is fueling a nascent recall movement. Perata will be termed out of state office this year and has made no secret of his interest in Oakland’s top job, despite allegedly being the target of an ongoing political corruption investigation by the FBI. Having a powerful colleague like Hamill on the council, while keeping De La Fuente in control of the body, could make a run for mayor attractive to Perata (who didn’t return our calls for comment).

"He’s going to run. Everybody knows he’s going to run," Oakland City Attorney John Russo told the Guardian, adding that the flurry of campaigning for Hamill is "absolutely a signal" of Perata’s mayoral ambitions. "That group of people [Perata and his allies] clearly see their interests lying with Kerry."

Reached for comment, Hamill said, "Don’s supporting me because I’m the best candidate…. Whether it is for selfish reasons like making sure the right people for him are on the council or not, I believe he is supporting me because he likes my work."

OUTSIDE INFLUENCE


If you live in Oakland or have spent any time there recently, chances are you’ve seen the pro-Hamill campaign signs promising "Safe Neighborhoods Now" affixed to fences and lampposts all over town. Oakland mailboxes have been stuffed with flyers backing Hamill’s candidacy. The signs and some of the other materials position Hamill in opposition to Dellums more than Kaplan, with one mail piece hammering the current mayor for his handling of the city’s recent crime wave.

Hamill’s campaign did not produce the signs or much of the literature championing her. Instead, two newly formed independent expenditure committees doled out more than $87,000 on her behalf in the first half of this year alone. The groups are not required to disclose their recent spending until Oct. 6, but given the volume of material being generated, there is little doubt their combined outlays will top $100,000 for the year. Hamill told us that outside groups are also aiding her opponent Kaplan, though she did not name them. Our examination of campaign records found that the California Nurses Association paid $24,535 for a pro-Kaplan mailer in May.

"That’s definitely a lot of money," Alameda County supervisor Keith Carson told us, referring to the spending in support of Hamill. "It certainly raises your antenna. In any campaign when you have two separate entrants putting resources in, you pause and ask, ‘What’s behind it?’<0x2009>"

On the surface the two groups backing Hamill appear unconnected. But recent media reports and a Guardian examination of campaign finance records reveal several ties between both organizations and Hamill’s old boss, Perata.

The first group, which calls itself Californians for Good Jobs, Clean Streets, and Outstanding Schools, displays clear Perata associations. The group’s treasurer is Mark Capitolo, who used to be Perata’s director of communications. Many of its donors consistently give to Perata’s numerous political action committees. And its campaign documents list a Sacramento phone number that, as the East Bay Express reported in May, belongs to Perata’s chief political strategist, Sandra Polka.

Polka and employees of her consulting business appear to be deeply involved in the senator’s affairs. When we called Perata’s Sacramento office seeking comment for this story, we were told to contact Paul Hefner, who works for Polka’s firm. Polka, Hefner, De La Fuente, Capitolo, and Californians for Good Jobs president, Hilda Martinez, did not return our calls for comment.

Perata’s links to the second group, known as Oakland Jobs PAC, are not as immediately apparent, and one person involved with the group denied that the legislator is aiding their cause. But an inspection of disclosure forms did yield evidence of the legislator’s potential influence. In mid-May, Oakland Jobs received its first $10,000 from another political action committee known as Vote Matters. As the Contra Costa Times reported, Vote Matters spent more than $175,000 earlier this year trying to pass Proposition 93, which would have allowed Perata and other termed-out state politicians to remain in office. Perata strongly supported the measure, which did not pass.

Robert Apodaca, who called himself a "personal friend" of Perata’s, informed the Guardian that he recommended that Vote Matters provide the money to Oakland Jobs. Apodaca is director of marketing for the architecture and planning firm MVE and Associates, which designed the huge Oak to Ninth Project along the Oakland waterfront. Perata passed key legislation that allowed the project to move forward, though it has yet to be built. Oakland Jobs donor Signature Properties is one of the project’s lead developers and, according to the East Bay Express, Oakland Jobs’ treasurer Sean Welch has worked for Signature Properties in the past. Signature Properties has also been a donor to Perata’s political committees, as have several other Oakland Jobs contributors.

In addition to his work for MVE and what he deemed his "unpaid advisor" relationship with Vote Matters, Apodaca is listed as a paid campaign consultant for a now-defunct committee called the "California Latino Leadership Fund" (CLLF). CLLF employed Polka as well as Apodaca in 2006 and 2007. Polka is now working on behalf of the other committee backing Hamill this year, Californians for Good Jobs, Safe Streets, and Outstanding Jobs.

DEVELOPERS’ DEEP POCKETS


Apodaca told us he could not remember why he pushed for Vote Matters, which normally supports state candidates and initiatives, to give money to a local committee like Oakland Jobs. But he was certain that Perata played no part in it. "He’s not involved in [the committee’s decisions]. He’s not even in the room."

But a well-placed East Bay source told us Perata was in the room with Oakland Jobs–affiliated figures while money was being sought to support Hamill. The source, who asked not to be identified, said Perata was part of a breakfast meeting several months ago at the downtown offices of the Oakland law firm of Wendel, Rosen, Black and Dean, at which De La Fuente asked a group of prominent developers to give large sums of money to an independent expenditure committee that would back Hamill.

The source could not recall if the committee was named by De La Fuente or anyone else at the meeting. But according to the source, pro-development activist Greg McConnell was there. McConnell told us he is involved in running Oakland Jobs. His business, the McConnell Group, has received funding from the group. The source also said representatives from Signature Properties and developer Forest Hill, another Oakland Jobs donor, were in attendance and that De La Fuente expressed an interest in raising "over a hundred grand" for the race.

A second source confirmed that Perata was at the meeting in question but did not recall De La Fuente asking for the funds, though the second source did say De La Fuente has subsequently called seeking money for Hamill’s campaign.

Reached for comment, McConnell asserted that Perata is not involved with Oakland Jobs. He said a morning meeting did take place at the Wendel, Rosen firm "a couple of weeks ago," during which Perata asked the developers in attendance to contribute directly to Hamill’s campaign. But according to McConnell, Perata left the room before De La Fuente made a pitch to fund independent expenditures. Direct contributions to candidates are limited to $600 per donor in Oakland. Independent groups like Oakland Jobs are not subject to those restrictions.

‘NOT KOSHER’


In addition to learning of De La Fuente’s alleged fundraising pitch at a recent developers’ meeting, the Guardian has obtained a letter from De La Fuente to potential Hamill donors asking them to attend a $600-a-head event Oct. 2. Nothing in the letter itself, dated Sept. 16, appears to violate any campaign finance rules. But it is printed on what appears to be official City of Oakland letterhead, complete with the official seal. That could mean trouble for De La Fuente.

"That’s not kosher," Mark Morodomi, the supervising deputy in the Oakland city attorney’s office, told us. State law prohibits the use of government resources for political campaigning. Before coming to Oakland, Morodomi spent 10 years at the California Fair Political Practices Commission, the state’s campaign-finance watchdog.

A line in small type on the bottom of the letter reads, "Not printed or mailed at public expense." Morodomi said the phrase "comes close" to making the use of city letterhead permissible, but he added, "It doesn’t inoculate him. Magic language doesn’t automatically make it okay … those words have to be true."

According to Morodomi, if any part of generating and disseminating the missive involved taxpayer-funded resources — from printing costs to paper, envelopes, or stamps — De La Fuente would be in violation of the law. Using Oakland’s official seal could also be problematic.

Hamill dismissed concerns that the invitation tested the limits of the law: "I’ve been around for 20 years, and I’ve seen council members use that kind of stationary for fundraisers all the time."

But City Attorney Russo, Morodomi’s boss, that even if the letter turns out to be technically legal because no public resources were used, he is uncomfortable with De La Fuente’s decision to mix fundraising with official city documentation: "It’s not great form. You have to be really mindful as to how it would appear."

Guardian interns Katie Baker and Anna Rendall contributed to this report.

A house divided

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› jesse@sfbg.com

Just as the US presidential election hits the home stretch, internal strife at one of the country’s largest labor unions appears to be diverting its focus from electing Barack Obama.

The Service Employees International Union (SEIU) and its 2 million members helped Obama defeat Hillary Clinton in the Democratic primary. Its ground operation and bulging political war chest are crucial to Democratic Party hopes in November, both in the presidential election and congressional races. But a recent corruption scandal and an ongoing internal dispute that threatens to blow up in the coming weeks could undermine the union’s political influence at the worst possible time.

"If SEIU didn’t have to deal with this distraction, it would be able to do more to influence the election," Dan Clawson, a labor scholar and professor of sociology at the University of Massachusetts, Amherst, told the Guardian. "California [where nearly all of SEIU’s recent turmoil has taken place] is not where they should be."

But according to several sources within SEIU, the union will be devoting resources to the Golden State this fall, even though the state is widely expected to remain a Democratic stronghold. The sources contend that the organization is preparing to deploy hundreds of its staffers to the region to take control of a local union affiliate and to deal with any potential fallout. At least some of those staffers, the sources say, would have been devoting their time and energy to the election campaign if not for SEIU’s internal troubles.

Last month the union’s international office was forced to "trustee," or take over, its largest California affiliate after the Los Angeles Times ran a series of articles exposing alleged corruption by its leader, Tyrone Freeman. Then, in late August, SEIU announced it was initiating a process to assume control of its second-largest California local, the Oakland-based United Healthcare Workers–West (UHW). For months, SEIU president Andy Stern has feuded with UHW head Sal Rosselli over Stern’s push to consolidate local union chapters into larger and more centralized units [see "A less perfect union," 4/9/08, and "The SEIU strikes back," 4/16/08].

Stern and the international have charged Rosselli and other UHW officials with misappropriating millions of dollars. In late July, a federal judge dismissed a lawsuit brought by SEIU covering these same charges. Now SEIU has scheduled its own hearings on the matter to decide whether to clean out UHW’s leadership. The hearings are set for Sept. 26-27 at the San Mateo County Event Center. A separate lawsuit challenging UHW leadership brought by individual UHW members is also moving forward. Rosselli and his supporters strongly deny the allegations of financial misconduct. They claim the upcoming trusteeship hearings are simply Stern’s latest attempt to stifle dissent within the union.

"It’s a kangaroo court," Rosselli told us. "It’s a purely political move to silence our members. And it’s a huge distraction."

SEIU’s turmoil is not welcome news to progressives. Federal election records show that the union’s political arm has dropped more than $10 million into Obama’s candidacy, as well as millions more for other left-wing candidates and causes. Beyond monetary support, Democrats are counting on SEIU organizers to hit the ground across the country, especially in hotly contested states like Pennsylvania, Florida, Ohio, Colorado, and Missouri. But because of the feud, a good number of those foot soldiers could be spending this autumn in safely blue California instead.

If the hearing officer hired by SEIU allows the union to take over UHW, another labor scholar, who spoke to the Guardian on condition of anonymity, said, "It’s hard to see how [SEIU] would do it without bringing in a significant number of people." He explained that in the event of a trusteeship, some or all of the staff may need to be replaced. The union also might have to contend with a large number of extremely disgruntled people in its 150,000-member affiliate.

Officials at UHW told us that members are planning "massive" demonstrations at the two-day hearings in late September. And the upheaval could easily drag on through the rest of the campaign season if the trusteeship moves forward. Rosselli predicts there will be "major resistance" from his rank and file. He would not elaborate on what that resistance would consist of, but a resolution passed at a recent UHW leadership conference struck a decidedly militant tone: "UHW will fight to keep our members united in one statewide healthcare workers union and will use all available means."

Rosselli told us that resisting SEIU’s trusteeship would "dramatically" curtail his local’s political activities. During the primary season, he added, UHW dispatched teams of organizers to Iowa, New Hampshire, and other critical states. But for the general election, they will be staying home. "We’re in a civil war," Rosselli said. "We need everyone here to defend against Stern’s dictatorship."

The Guardian has learned that Obama and other progressive candidates may not just be losing valuable campaigners from UHW. Several UHW sources said they expect SEIU to send large numbers of union organizers to the Bay Area in the wake of the hearings — and two management-level sources from the international’s staff confirmed those suspicions to us.

The first source, who asked not to be identified, told the Guardian that numerous colleagues at the organization have been approached by "senior international staff, attempting to recruit them and other organizers to come to California … to implement the [possible] trusteeship." The source added that people within the organization believe the union is planning to send "hundreds" of people.

A second management-level source at the international, who also requested anonymity, told us that they have personally assigned several organizers to campaign work only to see those staffers reassigned to the UHW matter by international higher-ups. The second source reiterated the first source’s contention that the union is looking to send "hundreds" of what the source termed "troops" to Northern California to replace any UHW staff who quit or are expelled, and to quell any uprising by disgruntled UHW members.

"This has been deemed an imperative at the top levels of the union," the second source continued. "People have been told [the] numbers of people they need to assign [to the UHW feud] and been told to look over their staff lists to see who they can assign."

Michelle Ringuette, a spokesperson for the international in Washington DC, told us that "no one is being pulled off of political work" to deal with the UHW situation. While she wouldn’t deny that some organizers who might otherwise be involved in lower-level political activities "like get out the vote operations" might be sent to California if needed, she denied that staffers who specialize in politics would be diverted or that hundreds of staffers would be involved. Get out the vote efforts such as phone banks and door-knocking are often performed by union workers on behalf of Democratic candidates — and they can be decisive in a close election.

"Of course this [the trusteeship hearing] is unfortunate timing," Ringuette said. "But … we don’t believe this is going to affect out advocacy for Barack Obama. That is our top national priority."

But a third employee of the international we spoke with rejected Ringuette’s description of a division of labor within the union’s organizers. The longtime employee, who also asked not to be identified for fear of retribution, told the Guardian that a small number of international staffers may specialize exclusively in political activism, but virtually all organizers would be working on the fall campaign in a normal election year.

"If they’re sending organizers to California [to deal with UHW], they’re definitely moving them away from battleground states. California is not considered a battleground state."

Our other two sources at the international echoed the third source’s characterizations.

In a strongly worded letter to Stern dated Sept. 9, UHW’s secretary treasurer Joan Emslie stated that the trusteeship hearings "can only distract" SEIU from political activism and "hinder our ability to put the greatest possible efforts into this critical national election." The letter ended by requesting that the trusteeship hearings be postponed until "a date no earlier than Nov. 10," one week after the presidential election. As of press time, the international has not rescheduled the hearings.

Obama campaign officials we contacted declined to comment on what one called "an internal union matter." But some labor observers were willing to voice their displeasure with the timing of the dispute. Professor Nelson Lichtenstein, director of the Center for the Study of Work, Labor, and Democracy at UC Santa Barbara called the trusteeship hearings "a huge mistake." With the upcoming election, Lichtenstein went on, "the consequences could be enormous. What’s the rush?"

The SEIU strikes back

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› jesse@sfbg.com

The Rhode Island Street headquarters for Local 1021 of the giant Service Employees International Union (SEIU) had several surprise visitors April 14. First, International President Andy Stern arrived from Washington DC to speak with the local’s executive board.

Then, after word of Stern’s last minute appearance got out, a group of 20 activists from Oakland–based SEIU affiliate United Healthcare Workers West (UHW) attempted to enter the building and confront Stern about what they perceive to be his anti-democratic administration. They were barred from the meeting. When the Guardian attempted to gain entrance, we were twice escorted to the exit by 1021 staffers. A source inside the union said Stern left through a back door during lunchtime.

Stern’s visit and the dissidents’ foiled attempt to meet him reflect the high level of tension inside SEIU these days. As it prepares to vote on several democratic reform measures at a convention in early June, internal fault lines have split the 1.9 million-member union.

As we reported last week ("Hard Labor," 4/9/08) Stern loyalists have pushed the boundaries of union rules, and perhaps even federal law, to beat back the slate of reforms championed by UHW’s dissident leader, Sal Rosselli.

Now, in response to our reporting and to Rosselli’s movement, leaders inside the labor giant apparently have gone into full damage-control mode.

In fact, an election committee that appears to have been hand-picked by Local 1021’s president already rejected an internal complaint about the election process — and critics are calling foul.

WHO’S A MEMBER?


Two weeks ago, the Guardian reported on a controversial batch of e-mails among SEIU officials. Calling themselves the "salsa team," high-level union staffers — including Damita Davis-Howard, whom Stern appointed as president of 1021, as well as Josie Mooney, a Stern assistant — swapped campaign strategy and exchanged anti-Rosselli talking points during an election to select delegates to the upcoming convention.

On April 4, more than a dozen union members lodged a formal complaint with the organization’s local election committee. The complaint charged that the salsa team’s missives broke union rules against staff involvement in elections. Soon afterward, lawyers representing Rosselli’s union filed suit against Stern and the SEIU — alleging, among other things, that SEIU "officers, employees, and allies" interfered with delegate elections in violation of federal labor law.

While the lawsuit will not see a courtroom for some time, it didn’t take long for the union committee to rule against the members’ complaint. In a memo dated the following Monday, April 7, and obtained by the Guardian, the nine-member body reported to the union’s International Secretary-Treasurer that "the staff (directors and others) named in the challenge are members of Local 1021 and therefore have the same right as all other members" to participate in the election.

The distinction is key: union rules strictly forbid paid staffers from interfering in elections by members. And supporters of union democracy insist that a central tenet of their movement are the notions that staffers work for the membership — and that the members, not the staff, determine union policy (See Opinion, page 7).

The outcome is important not only to the union but to progressive politics in San Francisco. Local 1021 (and Local 790, the San Francisco chapter that predates it) has played a major role in supporting progressive causes and candidates.

The committee’s ruling, and the speed with which it reached its decision, outraged many inside the union. A number of 1021 staffers who declined to be identified for fear of reprisal called the memo "bullshit" when asked to comment.

Union member Maria Guillen, one of the members who signed the complaint, told us that the salsa team’s actions and their exoneration by the election committee "go against the spirit of union democracy." Guillen went on to challenge the assertion that union staff, especially top management like Mooney and Davis-Howard, have the same rights as rank and file members when it comes to campaigning in union elections.

"None of the executive board members I’ve spoken to can recall voting on that. Who had the authority to permit that? … To think that folks with all the resources and all the connections are working against us, it breaks my heart."

The makeup of the committee also raises conflict of interest issues.

According to the provisional bylaws for Local 1021, which were enacted after it was formed in early 2007 by merging 10 separate Northern California locals, 1021’s appointed president Damita Davis-Howard has control "in creating committees and naming members to such committees." Several sources inside the union told us she used this power to select the members of the election committee that apparently ruled on whether she herself broke union rules.

Davis-Howard did not return calls for comment and our attempts to reach committee chair Cassandra Burdick through staff at Local 1021 were unsuccessful.

SEIU international spokesperson Andy McDonald could not confirm whether Davis-Howard had in fact named the election committee members to their positions

ROUGH STUFF


In another indication of just how radioactive SEIU’s internal dissension has become, numerous Democratic politicians and party officials in California recently received a letter signed by five presidents of SEIU locals around the state, including Davis-Howard. The letter, obtained by the Guardian and dated April 2 — the day after we broke the salsa team story — seeks to reassure party members that the union will clean its own house. It also appears to warn the state’s political leaders not to choose sides between Rosselli and Stern.

With millions of dollars in its coffers, SEIU is a prime source of campaign cash for politicians.

"We have a democratic process for resolving our internal differences," the letter reads. "In fact, our members will debate and set the course of our union at our convention in June. We hope that you will respect the right of our members to decide for themselves the direction of their union and avoid involvement in our internal affairs."

SEIU’s alleged hardball tactics have extended beyond its internal conflict in recent weeks. The union has been feuding with the California Nurses Association over allegations that the nurses’ union has been attempting to woo SEIU members into switching to the competing union.

Last week, several CNA board members in Southern California claimed that SEIU staffers showed up at their doors and confronted them. SEIU confirmed that it’s sending people to CNA members’ houses, but said there was no intimidation. And last weekend, a large crowd of SEIU members allegedly stormed a convention in Michigan put on by the magazine Labor Notes. A press release from CNA claimed several people were injured and that numerous CNA officials had to flee "out the back of the hall for their safety."

SEIU’s Lynda Tran confirmed that "things got a little rough" when a group of SEIU members and staff attempted to confront a CNA official. "Folks from both sides got injured," she added.

Labor activist and author Herman Benson, of the Association for Union Democracy in New York, told the Guardian that the divisions within SEIU, and its conflicts with other unions, are nothing new in the labor movement. For nearly as long as unions have existed, he said, power struggles have taken place among union brass. "Any incumbency has enormous weapons at its disposal."

Benson praised Stern for his efforts in recruiting new members for SEIU. As the rest of organized labor has continued to decline in America, Stern’s shop has brought in nearly 1 million new members. But Benson took issue with what he perceived as intolerance for dissent within his ranks.

"Stern has a vision of an almost militarized bureaucratic labor movement … but if you can’t have criticism before your international convention, when can you have it?"

A less perfect union

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› jesse@sfbg.com

By nearly every measure, the Service Employees International Union has become a juggernaut. As the rest of organized labor has seen its share of the American workforce continue to dwindle, SEIU has brought in some 800,000 new dues-paying members in recent years. With the Democratic Party taking over Congress in 2006, the 1.9 million-member organization, rich with campaign funds, wields enormous political clout, and it will only become more formidable if Hillary Clinton or Barack Obama wins the White House in November.

But all is not well inside the labor giant. Andy Stern, the union’s president, has pushed hard for merging and consolidating local chapters into larger operations — and many SEIU members, especially here on the West Coast, say that’s turning the union into a top-down autocracy in which Stern loyalists wield undue influence and meddling officials from Washington, DC squelch dissent.

And now, the Guardian has learned, Stern operatives are using their money and organizing clout in a hard-hitting campaign — not to force an employer to the table or to toss out an anti-union politician, but to discredit another labor leader.

The campaign is part of a bruising power struggle between Stern and dissident local leader Sal Rosselli, who runs the Oakland-based SEIU affiliate United Health Care Workers West. In the past few months, union insiders say, SEIU officials, including a senior assistant to Stern, set up what one leader called a "skunk team" to undermine Rosselli’s efforts at winning key union delegate elections. At one point, the team — which involved a political consulting firm linked to big downtown businesses — discussed an opposition research file compiled on Rosselli by a health-care giant his union was fighting

And leading up to the delegate elections last month, SEIU staffers worked to promote Stern-supporting candidates, possibly in violation of union rules, while actively discouraging other union employees from campaigning. That’s led to a formal complaint alleging improper involvement by Stern’s staff in a local union election.

EMERGING TENSIONS


In 2005, Thomas Dewar went to work as a press secretary at Local 790, formerly SEIU’s biggest San Francisco outlet, which represented approximately 30,000 workers, most of them public employees. Local 790 was among the most politically progressive union shops in the country, supporting left-leaning candidates for office and progressive causes like public power. In early 2007, Andy Stern initiated a merger of 790 with nine other regional locals. The move was part of a larger consolidation in the state that saw the number of California union affiliates reduced by nearly half.

The new Northern California superlocal was dubbed 1021, as in "10 to one." Local 1021 has continued 790’s liberal activism. But right after the merger was finalized, Dewar and other sources told the Guardian, the atmosphere around the union changed for the worse.

"A lot of members had anxiety," Dewar recounted. Most troubling, he said, was the insertion of Stern appointees into leadership positions, including current president Damita Davis-Howard. "Members were upset. They saw co-workers whom they had elected unilaterally removed by a guy in DC and replaced by his handpicked appointments."

Ed Kinchley, a Local 1021 member who was appointed by Stern to the local’s executive board after the consolidation, shared Dewar’s memory of the tensions. "You had 10 different locals with 10 different ways of doing things. It’s difficult to merge all of that. A lot of people who had been elected to leadership positions were removed."

Dewar told us he struggled to adjust to his new working environment. But after his initial misgivings, he said he devoted himself to backing Stern’s vision for the combined local: "We were told over and over that change is hard. So I decided to give it an honest shot." Dewar said he worked to get good press for 1021 and to build Davis-Howard’s profile.

But early this year, tensions between Rosselli and Stern flared — and according to Dewar, top staffers at 1021 began to focus more and more of their attention on the feud.

"They were freaking out about Sal," he said.

Enraged at what he considered International meddling in the affairs of his Oakland-based local, United Healthcare Workers West, Rosselli resigned from SEIU’s executive committee in early February. He also began championing a "Platform for Change" to be voted on at the upcoming SEIU convention in June. Among other things, the Rosselli-backed slate of reforms would give local union outlets more say in proposed mergers and collective bargaining agreements. The platform, if approved, would also scrap the current delegate system for electing International officials and replace it with a one-member, one-vote structure.

According to Dewar’s account and to evidence obtained by the Guardian, top SEIU officials have been working overtime to counter Rosselli — even pushing the boundaries of the union’s own rules and colluding with political consultants who have often opposed organized labor.

‘THE ANTI-CHRIST’


In early March, Dewar said that in early March, Josie Mooney, a former Local 790 president who is now a top assistant to Stern, approached him about joining what she characterized as a "skunk team that Andy and I are putting together." Dewar recalls Mooney telling him that the purpose of the team was to counter Rosselli’s increasing popularity with the rank and file, and to sink Rosselli’s platform for the convention.

Dewar told us that Mooney asked him to join the skunk team during a brunch meeting at the Fog City Diner in early March. An e-mail exchange he shared with us shows that he and Mooney discussed having brunch at the diner on March 1.

Mooney did not return numerous calls for comment and, through an SEIU spokesperson, she declined to speak for this article. But Dewar told us Mooney promised him at the brunch that his assistance in her efforts would win him positive attention from Stern. The team, she reportedly told him, was directly authorized by Stern and "that resources would not be a problem."

Dewar said he vacillated about joining the team, torn about aiding what he considered to be an internal union smear squad. "In 1021, we’re conditioned to think that Sal Rosselli is the anti-Christ," Dewar told us. "But even still, he was still a part of the same union." A March 4 e-mail from Mooney’s SEIU e-mail account to Dewar shows her urging Dewar to make up his mind: "You have to give me your commitment. I am (as we speak) selling you at the highest levels. Don’t blow that :)."

Dewar eventually agreed to join Mooney, Tom DeBruin — an elected vice president of SEIU International — and someone Dewar said Mooney referred to as the team’s "silent partner" for a dinner meeting.

E-mails from Mooney and other attendees show that the meeting took place March 10 at Oliveto Restaurant in Oakland.

Mooney’s "silent partner" turned out to be Mark Mosher, of the enormously successful San Francisco consulting firm, Barnes, Mosher, Whitehurst, Lauter, and Partners (BMWL). John Whitehurst, another of the firm’s partners, also attended the dinner.

BMWL has worked for the SEIU since 2001. But its client roster also included Sutter Health and the Committee on Jobs. Both organizations have less-than-stellar reputations among organized labor. Nurses at 10 Bay Area Sutter hospitals recently walked off the job for a 10-day strike. The Committee on Jobs is one of the largest lobbying organizations for downtown San Francisco business interests and has fought against numerous union causes. Mosher told the Guardian by phone that, as of November of last year, the Committee is no longer a BMWL client.

THE ROSSELLI FILE


Dewar claims Sal Rosselli was the central topic of conversation at the dinner. At one point, he says, the participants discussed an "oppo research" file on Rosselli compiled by Sutter Health. The hospital giant has clashed repeatedly with Rosselli and apparently had sought to dig up dirt on him.

Whitehurst worked for Sutter in the 1990s. His efforts for the hospital chain during a ballot campaign in 1997 earned him a place on the California Labor Federation’s "do not patronize" list.

Mosher confirmed by phone that Rosselli’s file at Sutter did in fact come up at Oliveto that evening. But he said Dewar "baited" him and Whitehurst into discussing it. Furthermore, he said, Whitehurst reported that Rosselli’s file was "clean."

In fact, a March 12, 2008 e-mail from Dewar to Mosher suggests that the team focus on Rosselli’s "hypocrisy" and states, "Have we approached anyone at Sutter re: dirt on Sal? Have we been able to peek into their oppo file?"

Later that day Mosher replied, "John Whitehurst read Sutter’s whole oppo file on Sal in 1997." In a follow-up message, Mosher writes that the file "really supports the idea that he’s not motivated by money."

DeBruin did not return calls for comment. Kami Lloyd, communications coordinator for Sutter, disputed whether the oppo file even existed: "To my knowledge," she told us, "no such file exists at Sutter Health."

Reached for comment, Rosselli reacted angrily to news of the alleged "skunk team" and the fact that a research file on him, compiled by a corporation perceived to be anti-union, was being discussed among SEIU officials. "It’s shocking. It’s treasonous. For Andy Stern to be using our members’ dues money to finance [a smear] campaign against his own members in United Healthcare Workers, it’s fundamentally anti-union."

Mosher defended his firm’s involvement with SEIU. He told us that he and Whitehurst were "not brought on board to do negative things against Sal Rosselli." Instead, he said their mission has been to help tout the union’s accomplishments as it prepares to hold its convention from June 1-4 in Puerto Rico.

SEIU spokesman Andy McDonald echoed Mosher’s description of the firm’s duties. Both Mosher and McDonald brought up the fact that Whitehurst has also worked for Rosselli’s UHW union.

UHW’s Paul Kumar confirmed that Whitehurst is currently "on our payroll" to assist in a dispute against Sutter Health — the very company Whitehurst worked for in the 1990s and the same source that provided him with access to Rosselli’s research file. "These guys [BMWL] claim they are trying to reinvent themselves," Kumar said. "But to be on our payroll and to engage directly in executing a dirty tricks program … is about the most blatant violation of professional ethics I can imagine."

Whitehurst did not return calls for comment.

Dewar claimed he urged Mooney and the other attendees of the March 10 dinner to consider "appropriating" Rosselli’s democratic reforms. "The members would all wildly support it. And that way, if the International co-opted Rosselli’s ideas, then [the internal conflict] really would be about this clash of personalities, Rosselli versus Stern, instead of ideas." According to Dewar, Mosher and Whitehurst were receptive to the proposal to co-opt Rosselli’s initiatives, but that "Josie nixed it."

When we asked Mosher if he remembered this exchange from the meeting, he said his memory was "hazy" and that "a lot was being discussed that night."

Although Dewar was, by his own account, an active participant in the skunk team, he says he started to have second thoughts. The dinner at Oliveto, Dewar said, and the discussion of Sutter’s file on Rosselli, "made me want to take a shower … the cynicism I was exposed to was toxic."

One week later, he sent Mooney an e-mail informing her that, "Today’s my last day at SEIU … the circular firing squads that are now forming in the local and in SEIU nationally have left me jaded, stressed out, and depressed."

SEIU’s McDonald denied that the skunk team exists, or ever existed. He added that "the meeting [at Oliveto] was about talking about how [Mosher] could help SEIU communicate our message … within the context of the misinformation campaign being spread by Sal Rosselli and UHW’s leaders."

OUTSIDE INFLUENCE


The rancor between Rosselli and Stern has reached a boiling point in recent weeks. In compiling this story, we had to wade through reams of documents and endure long expatiations from officials and press flaks about the sins of the other side. Both factions have constructed slick, professional-looking Web sites to question the probity of their rivals, and both have coined kitschy names for their respective policy initiatives. The SEIU has countered Rosselli’s "Platform for Change" with what union leaders call a "Justice for All" platform.

But the internecine struggle may have driven Josie Mooney and other high-level SEIU staffers to do much more than vent about Rosselli or seek dirt on him from political consultants. E-mails obtained by the Guardian suggest that she and other SEIU officials worked to influence an important local delegate election last month — possibly in violation of union rules — and, some union members now allege, in violation of federal law.

Delegates selected in the election will attend the union’s international convention in June and will decide between the Rosselli’s "Change" and Stern’s "Justice" platforms. The outcome of that vote, and others like it, will shape the mammoth labor organization’s future for years to come. And the e-mails appear to show a concerted effort by Mooney and Stern loyalists to ensure that Rosselli’s dissidents don’t stack the convention and push through their set of reforms.

Referring to themselves in the e-mails as the "Salsa Team," SEIU staffers discussed strategy and coordinated campaign activity for the delegate election with high-ranking union officials like Mooney and Damita Davis-Howard, the president of Local 1021, the e-mails show. In a formal complaint, some members charge that these activities violated Local 1021’s Election Rules and Procedures — specifically Rule 18, which states that "while in the performance of their duties, union staff shall remain uninvolved and neutral in relation to candidate endorsements and all election activities."

While Rule 18 does not specifically spell out when union staff can advocate for candidates, other than proscribing such activities "while in performance of their duties," the e-mails in our possession are date- and time-stamped, and at least one was sent during normal business hours. Furthermore, the Guardian has obtained an internal memo from Local 1021 official (and apparent Salsa Team member) Patti Tamura in which she warned union staffers that the phrase "’performance of their duties’ goes beyond [Monday through Friday] and 9-5p."

One Local 1021 official who asked not to be identified told us that Tamura’s memo appeared to be a clear message that staff should stay completely out of the election. "They made it perfectly clear to the lower staff that your employment doesn’t stop [after hours]; you’re still staff. That means you don’t get involved. But now it turns out they themselves were doing it. That’s a double standard … it’s certainly not right."

The messages between Salsa Team members show them actively working to recruit potential delegates sympathetic to Stern’s platform and to aid Davis-Howard in her bid to represent the union at the June convention. One missive, dated Feb. 18, which appears to come from the personal e-mail account of Local 1021 employee Jano Oscherwitz and was sent to what appear to be the personal accounts of Tamura and Mooney, requests that a "message for Damita" be drafted.

A forwarded e-mail from that same day, from Oscherwitz to what appear to be personal e-mail accounts for Tamura, fellow 1021 staffer Gilda Valdez, and "Damita" includes a "Draft Message" with bulleted talking points, apparently for Davis-Howard to use as she "Collect[s] Signatures on Commitment Cards."

"Commitment cards" refers to pledges from union members to support certain delegates.

The e-mails go beyond merely aiding Davis-Howard and other Stern-backed candidates. They also include detailed strategy for opposing Rosselli and countering his message. A March 5 Salsa Team message includes an attached document with several talking points critical of the dissident leader. In the body of the e-mail, SEIU staffer Gilda Valdez advises Davis-Howard, Mooney, 1021 Chief of Staff Marion Steeg, and others to "Memorize the points in talking to folks." Valdez goes on to say in the e-mail that she "will be calling … about your assignments."

Reached for comment, Davis-Howard confirmed that the AOL e-mail account listed as "Damita" was hers. But she claimed no knowledge of the Salsa Team or the messages sent to her. "If you’re saying those e-mails went to my home computer, who knows if I ever even got them?"

Davis-Howard bristled at the suggestion that the Salsa Team’s activities violated union rules. "Are you trying to tell me that I can never campaign? Does it [Rule 18] say that I have to be neutral and uninvolved 24 hours a day?"

Calls to Mooney, Oscherwitz, Valdez, and Tamura were not returned. Through an SEIU spokesman, Mooney declined to comment.

A BAD AFTERTASTE


On April 4, three days after the Guardian first reported on the Salsa Team e-mails on our Web site, Sanchez and several other 1021 officials filed a formal complaint with the union’s election committee. In the complaint, they accuse Davis-Howard and the other team members of vioutf8g Rules 10 and 18 of the union’s election codes. Rule 10 forbids "the use of union and employer funds … to support any candidate."

Local 1021 executive board member and Stern appointee Ed Kinchley authored part of the complaint. According to the text, which was obtained by the Guardian, Kinchley wrote, "While telling other staff that they may be fired for any intervention in this election, Ms. Davis-Howard and the others involved secretly did exactly what they told other staff they were forbidden from doing."

The complaint was signed by 16 Local 1021 officials, including numerous members of the local’s executive board. It called on the election committee to remove Davis-Howard "from the elected Delegate list" and to bar Salsa Team members from attending the convention in June.

The issue also has landed in federal court, where UHW was expected to file against Stern and other SEIU officials, alleging interference in delegate elections.

More cynical sources both inside and outside SEIU told us they believe the Rosselli-Stern feud boils down to one thing: power — either holding onto or expanding it. But labor scholar and former Local 790 member Paul Johnston had a more nuanced perspective.

Johnston, who taught at Yale and, until recently, worked for the Monterey Bay Labor Council, told us he admired both leaders and the work each has done on behalf of the larger union. Calling the current strife "a huge can of worms," he added, "These are questions of principle and there are good ideas on both sides."

Stern’s push to increase the union’s bargaining and political clout through more consolidation, Johnston went on, "has some very positive aspects to it…. In the old days, many of these kind of mergers were done for purely political power. The mergers being conducted today [at Stern’s direction] are primarily strategic, though. But there are some power issues that inevitably arise." On the other hand, he said, Rosselli’s UHW, "is a dynamic organizing union that has [its] own issues."

SEIU skullduggery

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>jesse@sfbg.com

As an internal power struggle wracks the giant Service Employees International Union, emails obtained by the Guardian suggest that SEIU officials may have violated union rules by working to influence an important San Francisco delegate election last month.

Delegates selected by Local 1021, based in SF, will attend the union’s international convention in June and will vote on a series of democratic reforms put forward by dissident labor leader Sal Rosselli. In recent weeks, Rosselli has clashed publicly with SEIU’s international president Andy Stern over Stern’s increasing consolidation of the 1.9 million-member labor organization.

And the emails appear to show a concerted effort by Stern’s senior staff and local loyalists to ensure that the dissidents don’t dominate the convention delegation.

Referring to themselves in the emails as the “Salsa Team,” SEIU staffers discussed strategy and coordinated campaign activity for the delegate election with high-ranking union officials like Damita Davis-Howard, the president of Local 1021, and Josie Mooney, a special assistant to Stern, the emails show.

Critics charge that these activities violated Local 1021’s Election Rules and Procedures – specifically Rule 18, which states, “While in the performance of their duties, union staff shall remain uninvolved and neutral in relation to candidate endorsements and all election activities.”

While Rule 18 does not specifically spell out when union staff can advocate for candidates, other than proscribing such activities “while in performance of their duties,” the emails in our possession are date and time stamped and several of them were sent during business hours.

Furthermore, the Guardian has obtained an internal memo from Local 1021 official Patti Tamura in which she warned union staffers that the phrase “‘performance of their duties’ goes beyond [Monday through Friday] and 9-5p.”

One Local 1021 official who asked not to be identified told us that Tamura’s memo appeared to be a clear message that staff should stay completely out of the election. “They made it perfectly clear to the lower staff that your employment doesn’t stop [after hours], you’re still staff. That means, you don’t get involved. But now it turns out they themselves were doing it. That’s a double standard … it’s certainly not right.”

The messages between Salsa Team members show them actively working to recruit potential delegates sympathetic to Stern’s vision for the SEIU and to aid Davis-Howard in her bid to represent the union at the June convention. One missive, dated February 18, which appears to come from the personal email account of Local 1021 employee Jano Oscherwitz and was sent to what appear to be the personal accounts of Tamura and Mooney, requests that a “message for Damita” be drafted.

According to the time stamp on the message, Oscherwitz sent it at 12:03 PM. Feb. 18 was a Monday. [Update: February 18th was the President’s Day holiday. However an email stamped 4:26 PM on the following day, Tuesday the 19th, shows Salsa Team members continuing to confer about Davis-Howard’s campaigning, as well as the recruitment of potential delegates.]

A forwarded email stamped 3:18 PM on that same day, from Oscherwitz to what appear to be personal email accounts for Tamura, fellow 1021 staffer Gilda Valdez, and “Damita” includes a “Draft Message” with bulleted talking points, apparently for Davis-Howard to use as she “Collect[s] Signatures on Commitment Cards.”

“Commitment cards” refers to pledges from union members to support certain delegates.

At the convention, scheduled for June 1 through 4 in Puerto Rico, delegates will weigh in on a series of reforms backed by Roselli, chief of the United Health Care Workers West. These reforms include eliminating the current delegate system for electing union leaders, giving local unions more authority in bargaining for their own contracts, and granting locals more say in proposed mergers.

Stern opposes Rosselli’s reforms. A March 5 Salsa Team message includes an attached document with several talking points critical of Rosselli. In the body of the email, SEIU staffer Gilda Valdez advises Davis-Howard, Mooney, 1021 chief of staff Marion Steeg, and others to “Memorize the points in talking to folks.” Valdez goes on to say in the email that she “will be calling … about your assignments.”

Reached for comment, Davis-Howard confirmed that the AOL email account listed as “Damita” was hers. But she claimed no knowledge of the Salsa Team or the messages sent to her. “If you’re saying those emails went to my home computer, who knows if I ever even got them?”

Despite her unwillingness to acknowledge whether she had received the messages, Davis-Howard bristled at the suggestion that the Salsa Team’s activities violated union rules. “Are you trying to tell me that I can never campaign? Does it [Rule 18] say that I have to be neutral and uninvolved 24 hours a day?”

Calls to Mooney, Oscherwitz, Valdez, and Tamura were not returned.

But some union members think there’s a serious problem here. In a written statement, Roxanne Sanchez, who was the president of the San Francisco local before it was merged with other Northern California locals to create 1021, accused Davis-Howard and the Salsa Team of “rigging the outcome” of the delegate election.

“This type of breach in ethical conduct – at such a high level – threatens the foundation of trust and confidence in our Union and in President Damita Davis-Howard’s ability to hold fair elections,” she said.

Sanchez informed us by phone that a formal complaint will be filed with the union’s election committee by Friday.

Labor’s merger pains

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› jesse@sfbg.com

Part one of a series on the emerging problems with labor mergers

For well over 100 years, San Francisco hod carriers — workers who assist stone, brick, and plaster masons — have gathered at the Local 36 hiring hall to find work. Though not as large and bustling as it was in its heyday, the hall, now situated in Daly City, still serves as an important social as well as professional gathering place for San Francisco and San Mateo County "hoddies."

But on Monday, March 10 and Tuesday the 11th, when the union’s members arrived to put in for jobs, they found the entrance shuttered and a paper sign taped to the door.

"This Office Will be Temporarily Closed Due to the Transition of the Separation between Local Unions," the sign read. Several South Bay phone numbers were listed below — one for the dispatch office at Local 270, a much larger South Bay chapter of the Laborer’s International Union of North America (LIUNA), and one for Carlos Lujan, 270’s business manager. When the workers tried to call the numbers to secure work, they claim officials at 270 told them they couldn’t help them.

Meanwhile, several told the Guardian they could hear the phone ringing through the hiring hall door as calls from contractors came into the office. Every phone call most likely meant a job that would not be filled by one of the willing workers left outside.

"I felt abandoned," 25-year union member Jerrold ‘JJ’ Jones told the Guardian. Jones told us he waited for nearly three hours for the hall to open on March 11, only to give up in frustration. "Here I pay dues six months in advance and because that hall is closed, I didn’t have the opportunity to go out for a job that day."

A LESS THAN PERFECT UNION


The reasons for the hall’s closure trace back to an ill-fated merger between Local 36 and Local 270. The story is more than just a tiff in a relatively small labor group; it’s symbolic of a much wider issue that’s beginning to explode in organized labor.

In recent years, unions across the country have been encouraging smaller locals like 36 to join with larger shops to increase their clout and negotiating power. Supporters say these mergers create organizations better able to stand up to giant businesses and institutions.

But the trend also has drawbacks: more members under the aegis of one organization means more power in fewer hands — and sometimes, a lack of union democracy.

Local 36 seemed a prime candidate for merger, with only 120 members. Local 270 had more than 4,000 dues-paying workers and hefty political and trust fund accounts. But high-placed sources within the San Jose local tell us that it’s had serious turmoil over the past year — and the members from San Francisco say they feel left out.

Local 270’s leader, Carlos Lujan, is the subject of an investigation by the international union’s inspector general. Documents provided to the Guardian show that the inspector general has been looking into several complaints about Lujan’s leadership, including his conduct of meetings. An official from the parent union has observed the last three executive board gatherings and is expected to file a report with the Washington brass in the coming weeks.

"Clearly there are troubles out there," attorney Bob Luskin of the Washington firm Patton, Boggs, told us. Luskin acts as the union’s special counsel. "The marriage [between 36 and 270] looked like a good idea at first," he said. "But in the end, it didn’t turn out so well."

Much of the current internal strife at Local 270 appears to have begun when Lujan announced his retirement at the end of March 2007. Two weeks prior to his planned departure, Lujan’s advisors proposed a post-retirement consultant’s job for him. According to a complaint filed with the Department of Fair Housing and Employment by former 270 employee Leslie Scanagatta, the consulting gig would have paid Lujan $500 a week, and the union would pay to fly him from his home in Texas to San Jose for meetings.

Scanagatta’s complaint states that Lujan became angry after she and several other officials voiced concerns with the plan. It alleges that Lujan declared to another union official that she would "be terminated by the end of the week" — which she was.

"It was devastating," Scanagatta, who now works for Santa Cruz County, said. "I was laid off for eight months and I’ve taken a 38 percent pay cut now."

Lujan did not return repeated phone calls seeking comment.

One of the people pushing for Lujan’s consultant job was Edgar Calonje. Calonje, who worked for the union as an independent contractor, said he met with Lujan before the boss announced his retirement, and that Lujan told him and Enrique Arguello, a member of 270’s executive board, that he was planning "to get his retirement [benefits] and consultant fees as well."

"We thought if we helped him [get the deal], we would be in good shape," Calonje said by phone from Nicaragua, where he was visiting family. "But that’s not what happened."

First, Lujan withdrew his retirement and decided to stay on. Then, in November 2007, Colanje lost his job — after, he says, a private memo he had written surfaced in which he criticized Lujan’s leadership and integrity.

Shortly after Colanje was let go, Arguello — who now says he didn’t actively support Lujan’s retirement plan — resigned from his job as a business agent rather than accept a demotion. A Nov. 28 letter from Lujan to Arguello obtained by the Guardian states, "the reason for the change in your position was because the pattern of actions made by you in the past could put this Local in a difficult position."

THE LOCK OUT


Early in 2008, the atmosphere of dissension in San Jose began to affect the hiring hall in Daly City, and eventually boiled over into physical confrontation. First, former Local 36 business manager Alex Corns clashed with Lujan and resigned in a huff from his new job at 270. Then Will Davis, who ran the Daly City hall after the merger, was dismissed. A March 6 letter from Lujan to Davis cites Davis’s "lack of commitment to work under my agenda as Business Manager" as the reason for his termination.

The following afternoon, Friday, March 7, Davis and Corns arrived at the hall to find the locks changed. That evening, they told us, a group of former Local 36 members met in a pizza parlor across from the shuttered hall and decided to petition the International to grant Local 36 back its independence. According to their account of what happened next, which was verified by Sgt. Ron Mussman of the Daly City Police Department, when Davis, Corns, and the other participants in the meeting emerged from the pizza parlor, they saw Lujan sitting in his pickup truck, which was parked in the restaurant’s lot. Across the street, two officials from 270 were inside the hiring hall removing computer equipment.

The now-dissident union members surrounded Lujan’s vehicle. Lujan fled the scene, according to worker and police accounts, allegedly striking one of the members in the forearm with his car as he backed up. The incensed crowd moved across the street and the workers from 270 barricaded themselves inside the hall. Lujan reportedly flagged down a police car as he drove away and the cops drove to the hall to escort the two men from San Jose safely out of the building.

Corns and Davis said they could not secure keys to the hall’s new locks by the time of Monday morning’s job call. For two consecutive mornings, out-of-work union members were turned away. Corns told us he finally called a local locksmith late Tuesday morning, March 11, so that members could be dispatched to jobs the following day.

HOW BIG IS TOO BIG?


For Corns, the failed merger with Local 270 is a personal as well as a professional tragedy: he was instrumental in helping 36 join with 270 after Lujan’s election as the bigger local’s business manager. Now he feels responsible for jeopardizing the organization he’s worked for since he was a teenager.

"I’ve been in the union for 35 years," Corns said, his voice choking up. "This is so heartbreaking to me."

Beyond the problems with one controversial business manager, Corns says the story is about the larger problem: increasingly top-down union management. In late February, he told us, 70 members of Local 36 voted unanimously to secede from 270 and become an autonomous chapter again. A representative from LIUNA was present at the vote and confirmed their version of the events for us. Despite the members’ calls for autonomy, officials in LIUNA’s International office in Washington, DC refused to go along; instead, on March 13, union brass granted their secession from Local 270 but immediately forced 36 into another merger — this time with a chapter based in Oakland, Local 166.

As a result of the two mergers, Corns says, the assets of Local 36 have been swallowed up by the larger chapters. He produced old bank account statements for us that showed well more than $100,000 in Local 36’s coffers before the organization joined with 270. Now, he says, he doesn’t know where that money is. Laborer’s International spokesperson Jacob Hay told us that the parent union is undertaking a "reconciliation process" to determine how much of Local 36’s money should go to Oakland and how much should stay in San Jose. Despite the apparent desire for independence among 36’s members, Hay argued that the union is making the right decision by forcing them into another merger.

"We think that it is in the best interests of smaller locals like [36] to join with larger, more powerful locals," he said. "You have more collective bargaining power with larger numbers [of members] … the goal here is to get all the hod carriers in the Bay Area into one local."

Will Davis and other Local 36 members do not share Hay’s bigger-is-better enthusiasm. "We’ve never gotten a good reason why we can’t just have the local back," Davis said. "We’ve never done anything wrong. We’ve never been under investigation. Why are we being punished for something we didn’t do?"

Editor’s Note: In the paper edition of this article, the Guardian misidentified two dates. Lujan announced his retirement in 2007, and the atmosphere of dissension began to affect the hiring hall in Daly City early in 2008.

Migden sues the FPPC

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› jesse@sfbg.com

Barack Obama and Hillary Clinton aren’t the only Democrats beating each other up this campaign season. The race for California’s third senate district has turned into a nasty three-way donnybrook, with incumbent Carole Migden fighting for her political life against San Francisco Assemblymember Mark Leno and former North Bay Assemblymember Joe Nation.

Now, to save her campaign from possible financial ruin, Migden has taken on yet another adversary: state campaign finance regulators.

On March 3, in a stunning move, Migden filed a lawsuit in federal court against the Fair Political Practices Commission, challenging its decision to strip her of nearly $1 million in campaign funds. A hearing is scheduled for April 1.

If Migden loses, it could leave her with very little money to spend in the heat of an expensive primary battle — a situation that might seriously hurt her chances for reelection.

"This lawsuit is very unusual," government scholar and former FPPC general counsel Bob Stern told the Guardian. "I can’t remember the last time a legislator sued the FPPC. Usually it’s the other way around."

Last October, after several months of investigation, the FPPC barred Migden from accessing $997,340.28 in her reelection accounts. She had transferred the cash to her current campaign from an account dating back to her days in the State Assembly. California’s "surplus funds" law, which Migden’s suit seeks to overturn, says public officials running for a new office must move old campaign funds into new accounts before they leave their original office. Migden did not move the money until October 2006, four years after she left the assembly.

After it was filed in the federal court for the Eastern District of California, the senator’s lawsuit provoked an angry response from the commission’s chair, Ross Johnson. In a statement, he said Migden was attempting to "bully" and "distract" the FPPC. Johnson, who pledged to "enforce the law," also asserted that Migden had already spent "nearly $400,000" from her assembly campaign. That could mean big trouble for the senator: by law, she might be liable for up to three times that amount in penalties, as well as additional fines. In recent weeks, FPPC commissioners have met several times in closed session to discuss an unnamed matter that many observers guessed was her case.

Last week, the commissioners met in secret again — and after they adjourned, they disclosed that they were in fact consulting with their attorneys about Migden. Given their actions both before and after the senator filed her suit, the buzz around Sacramento was that it was only a matter of time before the regulators started formal proceedings against her.

By beating them to the punch and challenging the law in the federal system, Migden may be trying to head off disaster. Polls show her currently running third behind Nation and Leno. In such a tight race, a large fine would cripple her campaign. And even if the FPPC didn’t choose to fine her, she still desperately needs the cash that they forbade her from spending — not just for the election, but also for a slough of legal expenses she’s racked up defending herself against regulators. As the text of her lawsuit states, her lost assembly funds, "could well make the difference in the June primary election."

Migden’s lawyer, James Harrison, called her campaign’s failure to properly transfer the money from her assembly accounts "a technical glitch" caused by a volunteer staffer. Why the senator would trust a volunteer to make sure such a huge sum of money was moved legally from one account to another has people in and around the capital scratching their heads.

"It’s mind-boggling to me," Stern said. "This is an awful lot of money to entrust to a volunteer. How long has she been in the Legislature?"

Migden told us by phone that at the end of 2006, after she was fined nearly $100,000 for other violations by the FPPC, she initiated a "top-to-bottom audit" of her finances. During the audit, she said, "We discovered that we had problems that exceeded the [abilities] of volunteer staff, so we brought in experts." Migden herself is now listed as the treasurer of her reelection campaign committee as well as her legal defense fund. But these staffing changes, she said, came after the assembly money had been transferred.

Whether or not the faulty funds transfer was caused by an innocent mistake, Migden is taking huge political as well as legal risks by challenging state law in federal court. Her lawsuit cites a controversial 1976 Supreme Court case, Buckley v. Valeo, which holds that the First Amendment’s right to free speech protects political campaign expenditures. That decision has been used by many — mostly conservative — opponents of campaign finance reform. In other words, Migden, a liberal lawmaker in one of the most liberal districts in the state, finds herself arguing from a conservative viewpoint against a key campaign finance law. Moreover, Migden publicly supported a 2000 ballot initiative, Proposition 34, which reaffirmed the surplus funds statute — the very law she now says is unconstitutional.

Reached by phone, her opponent Leno pounced on Migden’s apparent flip-flop on the law she is now challenging. "She never suggested that the [surplus funds] law was unconstitutional prior to breaking it. I wasn’t aware that as citizens or lawmakers, we got to pick and choose which laws we follow."

Migden would not address the matter of Proposition 34 with us. "The funds ought to be available to communicate with voters," she argued. "It’s a constitutional protection … whatever we did was lawful, we believe, and therefore we’re asking for a court decision."

For Stern, Migden’s gambit shows that she has nothing left to lose anymore. "It’s obvious that she needs this money desperately because [the lawsuit is] not good press…. She’s probably not going to win [in court], but there’s so much at stake, I can understand why she’s doing it."

The zoo at City Hall

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› news@sfbg.com

City Hall looked like feeding time at a popular new zoo exhibit on the morning of Jan. 11. Hundreds of people spilled from a cramped fourth-floor hearing room. The aisles bristled with television cameras and microphones. But the only animals on display were officials of the privately managed San Francisco Zoo.

A little more than two weeks after a Siberian tiger escaped her undersized enclosure before killing a young man and badly injuring two of his companions, the Recreation and Park Commission and the Joint Zoo Committee summoned Zoo management to discuss the tragedy. But after hours of staff presentations and public testimony, many in attendance doubted whether the same public officials and private managers who failed to prevent the grisly Christmas Day mauling should be trusted to point the correct way forward.

"To have Rec and Park and the Joint Zoo Committee hold the hearing is inappropriate at best," animal welfare activist Deniz Bolbol told the Guardian after the meeting adjourned. "This is the same committee that has basically rubber-stamped every management arrangement at the Zoo for the last 14, 15 years."

In 1993 the city handed over control of the Zoo to the private San Francisco Zoological Society but retained ownership of the property and the animals housed there. The makeup of the Joint Zoo Committee, which is charged with overseeing the society’s management, reflects this hybridized public-private arrangement. Three members of the city’s Recreation and Park Commission sit on the body, as do three members of the Zoological Society’s board of directors. According to Bolbol and other critics, the committee gives the private Zoo managers too long a leash.

"It’s a joke," Bolbol charged, "because basically, you’re asking them to self-regulate. You go to their meetings and there’s never one dissenting voice. Anytime anyone in the public says anything critical, they just sweep it under the rug."

The main argument for Zoo privatization was a lack of city money for needed improvements. And without a doubt, the Zoological Society has raised lots of cash since it took over. In addition to the $4 million dollars per year it receives from city taxpayers, the society waged a successful ballot campaign in 1997 for nearly $50 million in public bond money and has raised almost that much in private donations. But controversy surrounds how these windfalls have been spent and how the Zoo’s private management has decided to operate the facility.

Past Guardian investigations turned up disturbing cases of animal suffering and lax safety standards (see "The Zoo Blues," 5/19/99, and "The Zoo’s Losers," 5/7/2003) on the society’s watch. Many animals have died of diseases associated with unclean living conditions and cramped quarters. The same Siberian tiger that escaped her outdoor grotto enclosure and killed the young man Christmas Day mangled a keeper’s arm in late 2006. And last week’s cover story, "Tiger Tales," uncovered accounts of past tiger escapes from the same grotto.

Nick Podell, chair of the society’s board of directors, makes no apologies for his organization’s focus on the bottom line. "The primary function of the board is the raising of capital," he told us at the Friday hearing, adding, "We rely heavily on professional management for day-to-day operations."

When we asked Podell whether Zoo manager Manuel Mollinedo, who reportedly makes more than $330,000 per year, conducted a review of the outdoor grotto enclosure in the wake of the 2006 attack, Podell fiercely defended Mollinedo but declined to comment directly, citing "active litigation." Shortly after the Christmas Day incident, Mollinedo acknowledged publicly that the grotto’s walls were more than four feet lower than national standards. Nonetheless, Podell told us he believes the director "is being railroaded and lynched."

But critics of the privatization deal have renewed calls for greater scrutiny. "I’ve always been skeptical of this public-private arrangement," Sup. Tom Ammiano told the Guardian by phone. "[Zoological Society leaders] look at what makes a profit first. In itself, that’s not bad, but what are you sacrificing with that?"

City taxpayers will most likely sacrifice plenty in lawsuit awards and legal bills. Within a week of the Christmas Day debacle, the surviving victims hired celebrity lawyer Mark Geragos. City Attorney Dennis Herrera and his staff have already spent numerous billable hours jousting with Geragos in a high-profile spate over potential evidence. During the public hearing, Herrera and Geragos were down the street in Superior Court arguing over whether the city can search the victims’ car and their cell phones. As Ammiano put it, "This whole thing is probably going to be in lawyer land for a good while to come."

In the end, the privatization of the Zoo — hailed by advocates as the best way to bring needed funds to the facility — could very well cost taxpayers even more than expected. Indemnification clauses in the Zoo contract ostensibly absolve San Francisco of any legal jeopardy, but a separate clause clearly states that the city is liable for any "preexisting conditions." The grotto breached by the tiger on Christmas Day is almost 70 years old.

Officials won’t speak on the record about potential city liability, but they privately say they won’t be surprised if there are legal battles between the society and San Francisco over who has to pay the victims. Further blurring the line between the public and the private sector, the society has retained the services of former city attorney Louise Renne — the very person who negotiated the original lease agreement on behalf of the city. At the hearing, she told us she did not expect any problems between her former boss, the city, and her new client, the Zoo. "But to tell you the truth," she added with a smile, "I haven’t even looked at [the agreement] in years."

Sup. Sean Elsbernd, whose district includes the Zoo, voiced support for keeping the facility in private hands. But he did pledge that "if it comes down to a question of whether the city will pay for anything [the Zoological Society] did negligently, we will not…. They will pay for their negligence if negligence is found." Elsbernd has scheduled a hearing on the Zoo’s woes for Jan. 28 before the Government and Oversight Committee, which he chairs, while Sup. Ross Mirkarimi has called for a hearing by the Budget Committee.

Ammiano told us, "The history of the Zoo has been controversial, especially since [privatization], and we just need to be brutally honest about everything."

Politics as cryptography

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In his new book, Cracking the Code: How to Win Hearts, Change Minds, and Restore America’s Original Vision (Berrett-Koehler), author and Air America radio personality Thom Hartmann offers a how-to manual for expressing political viewpoints. He says the left’s struggles are not the fault of liberalism as an ideology; the problem is that many liberal politicians simply do not know how to talk to people.

Part self-help book, part populist polemic, Code puts our country’s political discourse under the knife and dissects how master communicators like Bill Clinton, John Kennedy, and Ronald Reagan won elections by talking their way deep into voters’ consciousnesses. He spoke with me by phone.

SFBG The poet Muriel Rukeyser said, "The universe is made of stories, not atoms." You have a similar view of the political universe, don’t you?

THOM HARTMANN Story is the way we transmit culture. Story is the way we remember things…. The story we call politics is the story of how to best accomplish the common good.

SFBG In Cracking the Code, you trace the lineages of the modern conservative and liberal stories to two philosophers, Thomas Hobbes and John Locke.

TH The conservative worldview is grounded in Thomas Hobbes’s Leviathan. You could argue that the Adam and Eve story is an early articulation of it as well. This [story] suggests that people are intrinsically evil, and because of that we have to find the most meritorious, the few who are good, and put them in charge. And small-d democracy with a lot of people participating is not such a good idea….

The liberal story came out of John Locke, but also [Jean-Jacques] Rousseau and eventually Thomas Jefferson. It says the vast majority of people are good and therefore collective wisdom can be trusted. The more people that participate in democracy the better. That’s why the liberal founders of this country put "We the People" as the first three words of the Constitution. It wasn’t "Us the meritorious few, us the ones who are in charge." It was "We the People."

SFBG You say that after Sept. 11, George W. Bush was able to get even liberals to buy into the conservative story. Do you believe it’s still a powerful enough narrative to bring another Republican into the White House?

TH Yes, I think it’s possible. Particularly if we don’t have Democrats stand up and say, "I’m not afraid anymore." I’m still waiting for a Democrat to stand up like Franklin Roosevelt did and say, "The only thing we have to fear is fear itself, and we will not be frightened."

We’re wired for survival first and foremost. The reptile brain is the most primitive part of our brain. [It] is where fear is processed, and it’s all-powerful. So those people who motivate us with fear and danger are, over the short term anyway, typically going to have success. The problem is, it’s sort of like whipping a horse, these "moving away from pain" strategies. The more often you whip a horse, it’s going to go faster and faster until it hits a limit, and then it’s going to fall over dead…. At some point people say, "Wait a minute, you’re fearmongering. You’re the little boy who cried wolf."

SFBG You speak in the book about effective communication inducing a kind of trance.

TH If you want to teach somebody something, they have to be in a kind of trance state. And I refer to the techniques for bringing that on as "inducing the learning trance." Mostly these have to do with pacing and using different modalities as you speak.

The big mistake that John Kerry made against George [W.] Bush in 2004 was that he induced a boredom trance while Bush induced a feeling trance. Bush communicated feelings. They were clumsy, yes, but that made it more intense, frankly. Kerry communicated ideas and concepts. But people don’t vote on ideas and concepts. They vote based on their feelings.

SFBG Ronald Reagan was pretty much the master at appealing to emotion, wasn’t he?

TH Ronald Reagan, FDR, and Jack Kennedy were three of the greatest communicators that we’ve had in the White House…. What made them great was, first of all, their ability to be multimodal in their communication. They talked about their vision for America, they talked about their story of America, and they gave America a sense of what they thought it could be.

Number two, they all principally used "moving towards pleasure" strategies instead of "moving away from fear" or "pain avoidance" strategies. In other words, they held up an ideal of what we wanted to move towards as a country and made us proud of ourselves.

Number three, they communicated emotion and always used story and emotion to pass along information.

SFBG You point out how Reagan picked up one of Kennedy’s themes, which Kennedy himself picked up from John Winthrop: the "America as a city on a hill" theme. Except Reagan inserted a key word into its phrasing, didn’t he?

TH Yes, shining. He dramatically improved the "America as a city on the hill" metaphor by making us a shining city on a hill. He put that word in, and it gave the image even more power.

What’s interesting is … Reagan’s notion of America as the city on the hill was very different than Kennedy’s. John Kennedy’s idea of the city on a hill was that the entire world is looking at [America], and every single one of us in the country is the city. From the highest and best to the poorest economically, we are all part of that city on the hill, and we welcome people in to participate in it. Reagan, on the other hand, his version of the city on the hill was we’re the castle, we’re the fortress, we’re the place where Cinderella the lowly commoner hopes one day to get in and dance with the prince.

SFBG I noticed your Wikipedia page says you campaigned for Barry Goldwater in your youth.

TH When I was 13 years old, my dad was active in the local Republican Party, and I went door-to-door with him. I read [Goldwater’s] autobiography Conscience of a Conservative [Victor Publishing Co., 1960]…. I even went to a John Birch Society meeting. I was convinced that the communists had infiltrated the State Department and they were coming to get us. But within two years I had completely shaken myself out of that trance. There’s nothing like growing up, going off to college, and discovering that you’re of draft age and your government wants to kill you. Not to mention being exposed to ideas beyond what I had learned up to that point, [like] the core concepts of the Enlightenment.

SFBG So you heard a different story.

TH Exactly, and I lived a different story. I really saw America differently the first time one of my friends came back in a box from Vietnam.

SFBG My mother is a big fan of your radio show. But she lives in San Diego, and the Air America affiliate there is either going off the air or has already gone off the air.

TH It went off the air last week, actually.

SFBG Can you talk about the future of progressive media in light of that kind of setback?

TH The first two or three years that conservative talk radio was on the air, it struggled terribly. But then it reached the point where advertisers realized they were getting results and program directors realized that they had a core listenership, and it started to take off….

In the next year or few years I think there’s going to be a broad perception shift across radiodom that beyond the ongoing feast and famine of Air America, liberal talk radio is here to stay…. Right now the conventional wisdom [for program directors] is "nobody ever got fired for putting Rush Limbaugh on the air." When the conventional wisdom becomes "nobody ever got fired for putting Thom Hartmann on the air," then everything will change, and I think we’re very close to that.

41st Anniversary Special: Bilking the links

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By now, even most nongolfing residents of San Francisco have heard the dire refrain coming from City Hall: San Francisco’s public golf courses are sucking millions of dollars from the city treasury! Dozens of media stories have trumpeted this bleak pronouncement, and city leaders are using the shortfall to push for outsourcing control of the century-old open spaces. But a Guardian review of the Golf Fund shows that the links are not nearly as down-and-out as pro-privatization forces have led us to believe.

Recreation and Park Department accounting documents we obtained show revenues at the city’s six publicly owned golf courses last year were up nearly $1.5 million from 2005 to 2006 and more than $2.2 million dollars from 2004 to 2005, an increase of nearly 30 percent. But the cost of a lavish contract with a large, out-of-state golf-management corporation has risen precipitously over the same time frame and drained most of these new funds.

For the 2006–07 fiscal year the city shelled out more than $3.25 million to Kemper Sports Management to operate the pro shop and clubhouse at the Harding Park Golf Course and its nine-hole neighbor, Fleming. By comparison, in 2004–05, Kemper’s tab at Harding and Fleming was a still eye-popping $2.07 million, but that number is nearly $1.2 million less than what the city had to pay last year. These increased costs, as well as a hefty loan repayment for Harding Park’s botched remodel in 2002 and 2003, have eaten up the links’ improved revenue and forced the city to throw in an extra $1.4 million from the General Fund to keep golf solvent.

"What’s going on up at Harding is a disaster," Bob Killian told the Guardian. Killian ran the city’s golf operations profitably for two decades until 2001. "When I was in charge we had contracts with various managers for the pro shops and the restaurants, and they made us money. They paid us. Now, Harding is run at a deficit. Where the fuck is the money going? What’s it for? Nobody knows. It’s all this big secret…. It’s a scandal."

Kemper’s seven-year deal is unique, to say the least. At every other publicly managed course, the city leases control of the pro shops and clubhouses to outside companies. In exchange for a flat fee paid into city coffers, those companies bear all of the risk and reap most of the rewards of operating the facilities. But at Harding, the city pays Illinois’s Kemper $192,000 per year, regardless of its performance, to act as an on-site manager, plus a 5 percent incentive fee for gross revenues over $6 million. But those guaranteed sums are only the beginning of the bill.

Kemper hires staff, rents golf carts, and orders the supplies to be sold in the pro shop and the clubhouse. Unlike in the city’s lease arrangements at other courses, though, the company bears none of the risk. It simply invoices the city for its expenses, and the city signs the tab. And the tab just keeps growing.

One public-golf insider who declined to be identified for fear of retribution said, "They’ve got this enormous staff there, managers and assistant managers and assistants to assistants of managers. It’s a golf course, not a hospital! I hear the payroll for the restaurant alone is like $600,000. And it’s only open for one shift a day…. They stock their pro shop with top-of-the-line gear that just sits there. If they order 20 Arnold Palmer shirts and only sell two, who cares? The city still pays for all 20."

In an e-mail to the Guardian, Kemper’s general manager at Harding, Steve Argo, told us it has between 60 and 80 employees, depending on the season. Citing this seasonal variability and "competitive reasons," he did not break down those numbers between management and nonmanagement, as we requested.

Both Argo and Katharine Petrucione, Rec and Park’s chief financial officer, attributed much of the added costs at Harding to the opening of a new permanent clubhouse there in late 2005. Argo said the increased revenues from the clubhouse have "more than covered the city’s increase in payments." But while Rec and Park’s ledgers do show that concessions revenues at Harding and Fleming have gone up since the clubhouse opened, the increase in Kemper’s bill has gone up nearly as much. All in all, with Kemper’s multimillion-dollar deal and loan payments for the over-budget remodel at the course, accounts still put the course at more than $500,000 in the red — even though a round of golf there now costs well over $100 and Kemper is still making a handsome profit.

It doesn’t end there. Petrucione said Kemper’s contract costs taxpayers even more than meets the eye. Because the company submits monthly and yearly budget projections as well as reams of invoices and expenses for reimbursement, Rec and Park staffers spend hours examining Kemper’s paperwork and activities — essentially managing the manager. When we asked her for an accounting of how much the Kemper contract costs the city in staff hours for these oversight duties, Petrucione replied, "It definitely requires more time and effort … than a lease agreement [like those at every other course] would."

During a recent radio interview, Sup. Jake McGoldrick called Rec and Park’s deal with Kemper "the worst contract I’ve ever seen." He added, "We don’t have a golfer problem. Golfers are coming out and playing. We have an accountancy problem."

The golf insider we spoke with echoed McGoldrick’s sentiments: "Business is up like 30 percent this year, but Kemper’s contract is jeopardizing the whole department…. If we redid the greens, tees, and fairways [at the other courses], just Band-Aid stuff like that, we would have the premier municipal system in the country. But instead they’ve given this cushy deal to a company from Chicago with no connection to San Francisco. It’s so unfair."

Despite the controversy over Kemper’s all-expenses-paid arrangement, Mayor Gavin Newsom, Rec and Park general manager Yomi Agunbiade, and others at City Hall have been using the deficits largely brought on by Kemper’s contract to push for more private control of the city’s links. In June the Mayor’s Office put forward a plan to outsource not just clubhouse and pro-shop management but all golf operations at the city’s premier courses, including Harding. The proposal was tabled after several contentious hearings at the Board of Supervisors, but many observers expect that it will make its way back to the board in the near future.

"In a perfect scenario, the city could [manage the courses efficiently], but the city has proven that it doesn’t have the ability to do it," Sup. Sean Elsbernd told us in July. Elsbernd has been one of the most vocal supporters of bringing in private golf management.

But McGoldrick, Killian, and other opponents of the idea point out that the city provided quality, inexpensive golf for nearly 100 years. They worry that private managers will find profit in higher greens fees, more part-time workers, and lower salaries and fewer benefits for full-time staff. But beyond those concerns, they see the mayor’s plan as yet another example of publicly owned assets being offered up for private gain.

The courses, McGoldrick told us, are "priceless…. We can’t just dump [them] because you’ve got folks from the Mayor’s Office and his Rec and Park Department who don’t want to be bothered."

In his endorsement interview with the Guardian, Newsom said about the golf courses, "You gotta deal with the reality of where we are and what our core competencies are. Golf courses do not reflect a core competency of government. We’re losing hundreds of thousands of dollars and about to lose over a million dollars a year, and that comes from somewhere. So rather than continuing to do what we’ve done and hope for a different result, we’re looking at best practices across the country and finding ways to manage our assets differently, and I’m not apologetic for exploring those things."

Bilking the links

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By now, even most non-golfing residents of San Francisco have heard the dire refrain coming out of City Hall: San Francisco’s public golf courses are sucking millions of dollars from the city treasury! Dozens of media stories have trumpeted these bleak pronouncements, and city leaders are using the shortfall to push for outsourcing control of the century-old open spaces. But a Guardian review of the “Golf Fund” shows that the links are not nearly as down and out as pro-privatization forces have led us to believe.

Recreation and Park Department accounting documents we obtained show revenues at the city’s six publicly-owned golf courses last year were up nearly $1.5 million from 2005-2006 and over $2.2 million dollars from 2004-2005, an increase of nearly 30 percent. But the costs of a lavish contract with a large, out-of-state golf management corporation have risen precipitously over the same time frame and drained off most of these new funds.

For the 2006-2007 fiscal year, the city shelled out more than $3.25 million to Kemper Sports Management to operate the pro shop and clubhouse at the Harding Park Golf Course and its nine-hole neighbor, Fleming. By comparison, in 2004-2005, Kemper’s tab at Harding and Fleming was a still eye-popping $2.07 million, but that number was nearly $1.2 million less than what the city had to pay last year. These increased costs, as well as a hefty loan repayment for Harding Park’s botched remodel in 2002 and 2003, have eaten up the links’ improved revenues and forced the city to throw in an extra $1.4 million from the General Fund to keep golf solvent.

“What’s going on up at Harding is a disaster,” Bob Killian told the Guardian. Killian ran the city’s golf operations profitably for two decades until 2001. “When I was in charge, we had contracts with various managers for the pro shops and the restaurants and they made us money. They paid us. Now, Harding is run at a deficit. Where the fuck is the money going? What’s it for? Nobody knows. It’s all this big secret … It’s a scandal.”

Kemper’s seven year deal is unique, to say the least. At every other publicly managed course, the city leases control of the pro shops and clubhouses to outside companies. In exchange for a flat fee paid into city coffers, those companies bear all the risk, and reap most of the rewards, for operating the facilities. But at Harding, the city pays the Illinois-based Kemper $192,000 a year, regardless of their performance, to act as an on-site manager, plus a 5% “incentive fee” for gross revenues over $6 million. But those guaranteed sums are only the beginning of the bill.

Kemper hires staff, rents golf carts, and orders the supplies to be sold in the pro shop and the clubhouse. Unlike the city’s lease arrangements at other courses, though, they bear none of the risk. They simply invoice the city for their expenses and the city signs the tab. And the tab just keeps growing.

One public golf insider who declined to be identified for fear of retribution grumbled, “They’ve got this enormous staff there, managers and assistant managers and assistants to assistants of managers. It’s a golf course, not a hospital! I hear the payroll for the restaurant alone is like $600,000. And it’s only open for one shift a day … They stock their pro shop with top of the line gear that just sits there. If they order 20 Arnold Palmer shirts and only sell two, who cares? The city still pays for all 20.”

In an email to the Guardian, Kemper’s general manager at Harding, Steve Argo, told us they have between 60 and 80 employees, depending on the season. Citing this seasonal variability and “competitive reasons,” he did not break those numbers down between management and non-management, as we requested.

Both Argo and Katharine Petrucione, Rec and Parks’ Chief Financial Officer, attributed much of the added costs at Harding to the opening of a new “permanent clubhouse” there in late 2005. Argo said the increased revenues from the clubhouse have “more than covered the city’s increase in payments.” But while Rec and Parks’ ledgers do show that concessions revenues at Harding and Fleming have gone up since the clubhouse opened, the increase in Kemper’s bill has gone up nearly as much. All in all, with Kemper’s multimillion dollar deal and loan payments for the over-budget remodel at the course, accounts still put the course at more $500,000 dollars in the red – even though a round of golf there now costs well over $100 and Kemper is still making a handsome profit.

It doesn’t end there. Petrucione said Kemper’s contract actually costs taxpayers even more than meets the eye. Because the company submits monthly and yearly budget projections, as well as reams of invoices and expenses for reimbursement, Rec and Park staffers spend hours examining Kemper’s paperwork and activities – essentially managing the manager. When we asked her for an accounting of how much the Kemper contract costs the city in staff hours for these oversight duties, Petrucione replied, “It definitely requires more time and effort … than a lease agreement [like those at every other course] would.”

During a recent radio interview, Sup. Jake McGoldrick called Rec and Park’s deal with Kemper, “The worst contract I’ve ever seen…We don’t have a golfer problem,” he added. “Golfers are coming out and playing. We have an accountancy problem.”

The golf insider we spoke with echoed McGoldrick’s sentiments, “Business is up like 30% this year, but Kemper’s contract is jeopardizing the whole department … If we redid the greens, tees and fairways [at the other courses besides Harding], just Band-aid stuff like that, we would have the premiere municipal system in the country. But instead they’ve given this cushy deal to a company from Chicago with no connection to San Francisco. It’s so unfair.”

Despite the controversy over Kemper’s all-expenses-paid arrangement, Mayor Gavin Newsom, Rec and Park general manager Yomi Agunbiade, and others at City Hall have been using the deficits largely brought on by Kemper’s contract to push for more private control over the city’s links. In June, the Mayor’s office put forward a plan to outsource not just clubhouse and pro shop management, but all golf operations at the city’s premiere courses, including Harding. The proposal was tabled after several contentious hearings at the Board of Supervisors, but many observers expect that it will make its way back to the Board in the near future.

“In a perfect scenario the city could [manage the courses efficiently] but the city has proven that it doesn’t have the ability to do it,” Supervisor Sean Elsbernd told us back in July. Elsbernd has been one of the most vocal supporters of bringing in private golf management.

But McGoldrick, Killian and other opponents of the idea point out that the city provided quality, inexpensive golf for nearly 100 years. They worry that private managers will find profit in higher greens fees, more part time workers, and lower salaries and less benefits for full time staff. But beyond those concerns, they see the Mayor’s plan as yet another example of publicly owned assets being offered up for private gain.

The courses, McGoldrick told us, are “priceless … we can’t just dump [them] because you’ve got folks from the Mayor’s office and his Rec and Park department who don’t want to be bothered.”

Sticking point

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The Homeless Youth Alliance (HYA) has quietly operated a drop-in center and needle exchange program in the Haight for the last 10 years. Until last month, very few people besides their clients even knew they existed.

Then the San Francisco Chronicle ran a series of overheated articles about used syringes littering Golden Gate Park. One of the pieces singled out HYA for handing out drug needles "by the double handful."

But the HYA and similar groups have long urged city leaders to deal with needle waste, urging them to install the type of needle collection receptacles used in other cities that share San Francisco’s official "harm reduction" approach to drug use. "We’ve been trying to get disposal boxes [for syringes] into the park for over a year and a half," HYA executive director Mary Howe said.

Yet Mayor Gavin Newsom and his administration have ignored that advice — apparently concerned about its political implications — and have instead ordered police and outreach workers to crack down on the homeless.

"Since the [Chronicle] articles, a few people have decided to stroll in off the street and tell us what they think of us," Howe told the Guardian. "Clearly, they want to think that the syringe problem is on me and on the needle exchange."

But Howe and other public health experts say San Francisco’s 15-year-old needle-swap program has not only dramatically contained HIV, Hepatitis C, and other deadly diseases among IV drug users, it also has actually reduced the number of cast-off needles in public spaces.

Santa Cruz, New York, Baltimore, Vancouver, and many other cities feature disposal boxes in drug hot spots. New York State Department of Health spokesperson Claire Pospisil told us her agency has more than 80 such receptacles around the state. While Newsom has borrowed get-tough programs like community court (for quality-of-life offenses generally committed by the homeless) and some aspects of his Care Not Cash plan from New York, his administration nixed requests to put the boxes in.

Instead, shortly after the first Chronicle articles appeared in late July, the city launched another crackdown on people sleeping in the park, as other mayors before him have done during election years. But several public health and law enforcement professionals told us the raids will never rid the park of addicts looking for a safe place to fix — or the occasional used needle that they leave behind.

"It’s one thing to sweep the park and displace an entire community if you have someplace to put them," Howe argued. "But they don’t have any place to put them."

Howe said her attempts to have syringe containers placed in the park are consistent with the San Francisco Health Commission’s seven-year-old "harm-reduction" mandate, which calls on city health workers and city-funded contractors like needle-exchange programs to minimize, as much as possible, the health dangers associated with drug abuse. Used needles, Howe contends, count as one of these dangers.

But Newsom spokesperson Nathan Ballard confirmed by e-mail that the administration has considered and rejected the idea for now. "The mayor is not eager to put such boxes in the park," Ballard wrote. He added that Newsom has asked the Health Department to consider installing "receptacles … in the right places," but when we asked him in a follow-up e-mail where such "right places" might be, he did not respond.

Rose Dennis at the Recreation and Park Department said that, in the past, the department "floated the idea" of disposal boxes at public meetings. But when it became clear that the containers would not be politically popular, the department quickly gave up on them. "People were really, profoundly opposed to it … and we just didn’t have the confidence that we weren’t going to be vilified for it," Dennis said. "We’re not just going to politically put our asses out there just because someone has an idea."

Several sources in the public health profession lamented this kind of political ass-covering. Dr. Alex Kral, a noted San Francisco epidemiologist, told us, "It’s not that we don’t have solutions to these problems. We have solutions. The problem is the politics…. If you take the politics out of it, we should have syringe disposal boxes in the park and wherever [IV drug users] congregate. At the very least we should have them at the edges of the park."

Even C.W. Nevius, the Chronicle columnist who stirred up the syringe controversy in the first place, supports Howe’s disposal box proposal. "What’s the downside of putting these boxes in?" he told us. "People might think that boxes would somehow encourage people to use drugs in the park, but the reason why [drug users] stay there would not be because there are these boxes."

Nevius added that Newsom called him after his columns came out and "yelled at me for 45 minutes…. He was very upset with the stories and the way they showed what’s happening."

Ballard touted the city’s aggressive new actions to clean up Golden Gate Park. He said that, in addition to the recent raids on homeless encampments, 13 new Rec and Park patrol officers will be dispatched to the park within a month, and "we’re adding additional HOT [homeless outreach] teams to connect more homeless people to the services they need."

Lt. Mary Stasko at the San Francisco Police Department’s Park Station explained how social workers in the HOT teams interact with park squatters during the early morning operations. "The outreach teams go with the police officers and the clean-up crews, and they tell people, ‘We can put you in a bed tonight, we can give you a hot meal right now if you come with us.’

But Stasko was doubtful that sweeps alone will stop homeless drug users from returning to the park. City shelters do not permit substance use, she reasoned, meaning anyone who wants to accept the HOT teams’ offers must choose immediate abstinence. "For the people who are interested in quitting, [the city’s new outreach efforts] are working like a charm. But then you have the hard-core people who don’t want to stop using. They’re the ones who end up coming back. Those are the types that have been in the park since 1967."

Canadian epidemiologist Dr. Evan Wood cited San Francisco’s "high-threshold," abstinence-only approach to services as a major factor in Golden Gate Park’s chronic cycle of homelessness and substance abuse. He has been involved with implementing Vancouver’s successful "safe injection site," where people can safely shoot up and dispose of their needles. Similar facilities are already widespread in Europe.

"Trying to simply eliminate these behaviors does not work," Wood went on. "You have to meet these people on their turf."

Carbon-neutral madness

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GREEN CITY Are you carbon neutral yet? Al Gore says he is. The concert tours for the Rolling Stones, Dave Matthews, and other big acts say they are too. Indeed, going neutral is hot these days as, almost overnight, the fledgling market in carbon offsets has burgeoned into a multimillion-dollar industry.

The method is simple, at least in theory. For a fee, companies will balance, or offset, the greenhouse gases emitted by your car or home by spending money on climate-healing initiatives such as renewable energy, forestation projects, and capturing deleterious gases like methane from farms and landfills.

But the sheer number of offset firms out there is staggering, with hundreds of companies vying for your dollars. And as the industry has exploded in popularity, questions have arisen about its reliability and whether the millions of dollars being spent are really making it to worthwhile projects.

"It’s the Wild, Wild West out there with carbon offsetting," the Sierra Club’s Aaron Israel told the Guardian. "Until it becomes a truly functional market, it’s going to continue to be confusing to the consumer who really wants to do the right thing."

A San Francisco firm is looking to bring some accountability to the freewheeling new sector. Since California’s energy deregulation disaster, the nonprofit Center for Resource Solutions has run the Green-e program, which oversees and authenticates energy companies that claim to produce renewable power. Starting this fall, the CRS’s Sarah Krasley told us, Green-e will police the carbon offset market as well and put its seal on worthy companies.

Green-e has already been certifying one method for slowing climate change for years: the sale of renewable energy certificates, or RECs. A local firm called 3 Degrees (formerly 3 Phases Energy) specializes in RECs, mainly for small and large businesses. With each one-megawatt-hour certificate its customers buy, the company helps wind, solar, and other renewable-energy producers compete with cheaper, fossil fuel–based sources of energy. As 3 Degrees’ Steve MacDougal explained, "Utilities purchase energy at a commodity price, the same price for coal as for renewables. RECs allow [green-power companies] to have a premium, which makes them more profitable."

While 3 Degrees deals primarily in RECs for business clients, two other local firms, TerraPass and LiveNeutral, peddle offsets for individuals. Since it opened shop just two years ago, the for-profit TerraPass has sold tens of thousands of "passes" on its Web site for car emissions, air travel, home electricity use, and even weddings. The average buyer spends "about $50," company founder Tom Arnold told us, with the money going to initiatives like wind farms in the Midwest and the capturing of greenhouse gas emissions from farms and landfills. About one-third of 3 Degrees’ outlays go to RECs.

LiveNeutral takes a different approach from TerraPass or any other company. Rather than spending money on individual projects or methods, the Presidio nonprofit buys and then permanently retires carbon offset credits from the Chicago Climate Exchange. "By purchasing these credits and then never reselling them," LiveNeutral executive director Jason Smith explained, "we drive up the price of the credits and encourage [big greenhouse gas emitters] to reduce." LiveNeutral sells a one-ton emissions reduction credit for $7.50, Smith said. Most customers use the company’s DriveNeutral program and purchase five credits to offset one year of driving. The firm also offers a FlyNeutral option for air travel.

But many critics have likened the offset business to medieval papal indulgences, with environmental sins like owning an inefficient vehicle or cranking up the thermostat absolved for the right price. Israel said the Sierra Club does not openly oppose the practice, but he is worried that offsets could become "a distraction for people…. It’s really the last thing you should do, not the first. First you should conserve and become more efficient, then you can see about offsetting what’s left."

For Arnold, TerraPass’s phenomenal success is not about exploiting guilt or bad behavior. Instead, he reasoned, it simply shows that people want to do all they can to make a difference. "Most of our users are already green," he said. "But we want to reach the people who are just now waking up to enormity of the problem too…. What our customers are saying is very American: ‘Let’s not wait for someone else to do it, let’s get something done ourselves.’ " *

Comments, ideas, and submissions for Green City, the Guardian‘s weekly environmental column, can be sent to news@sfbg.com.

The golf club

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For the better part of a century, San Francisco’s public golf courses have offered players relatively inexpensive rates, belying the view of some that this is an elitist sport incompatible with progressive civic governance. But since a botched revamp of the Harding Park course several years ago, golf operations have landed in the rough, siphoning large sums from city coffers every year. Now Mayor Gavin Newsom and his Recreation and Park Department claim that private businesses would do a better and cheaper job of running three of the city’s most valuable links.

Sup. Jake McGoldrick and other privatization opponents say outsourcing control of the Harding, Fleming, and Lincoln courses would inevitably lead to less access for the general public and higher costs. "A lot of folks don’t realize that the Golden Gate Yacht Club and the St. Francis Yacht Club are public assets that are now run as private membership clubs, elitist things," McGoldrick told the Guardian. "That’s certainly the way this could go."

McGoldrick has called for the formation of a Golf Course Task Force to explore nonprivatization solutions, including converting some of the courses into parks or open space, as the Neighborhood Parks Council has urged. On July 10 the Board of Supervisors will decide between McGoldrick’s plan and Rec and Park’s "hybrid management" resolution, which would award leases of 20 to 30 years for the courses. Political handicappers say the vote could go either way.

In addition to their concerns about prices and accessibility at privately run links, McGoldrick and others have serious reservations about who will run the courses if the mayor’s plan succeeds. No one we spoke with could name potential bidders with any certainty, but if the past is prologue, the choice is likely to involve political cronyism.

Golf advocate Sandy Tatum engineered the deal that turned Harding Park over to the management of Kemper Sports, which has been accused of overspending public funds and turning the course into a huge drain on the city treasury. Kemper also rents space to Tatum’s First Tee program. More recently, another nonprofit started by Tatum and former city attorney Louise Renne initiated and funded a study for Rec and Park that recommended more privatization by turning over courses to entities such as theirs.

The SF Weekly, which has run stories critical of the city’s golf privatization scheme, revealed a 1990s deal that privatized a city-owned course near Burlingame and, in what it deemed a corrupt selection process, handed control of the course to former Willie Brown staffer Tom Isaak.

In 2004, Tom Hsieh, one of Newsom’s key campaign consultants, submitted the sole bid for control of Gleneagles Golf Course in McLaren Park. Neither Hsieh nor his business partner, real estate investor Craig Lipton, had ever run a golf course before winning the contract for Gleneagles. But what really raised eyebrows around City Hall were the terms of the deal. Any lease of more than 10 years would have needed approval by the Board of Supervisors, so Hsieh and Lipton were given a nine-year contract.

"That was a very obvious and blatant end run around the contract requirements of the Board of Supervisors," McGoldrick told us. Hsieh, he went on to say, "is one of the mayor’s good buddies, and he got himself a nice contract out there."

Rec and Park spokesperson Rose Dennis defended the lease agreement with Hsieh, telling us, "At the end of the day, he legally got the concession. It wasn’t like it was put down to a nine[-year contract] to screw anybody. That would suggest a level of sophistication that Rec and Park just doesn’t have."

Reached for comment, Hsieh bristled at the suggestion that he landed the contract because of his ties to the mayor, writing in an e-mail that the mere suggestion was "a scurrilous attack motivated by politics." Hsieh did not answer our repeated requests for information about wage levels at the Gleneagles course and the number of groundskeepers employed there. McGoldrick and sources in the industry assert that one of the main ways private managers would make money from the other courses would be to reduce labor costs.

Sup. Sean Elsbernd, one of the privatization plan’s strongest backers, conceded that some past golf contracts have been "questionable," specifically in the case of Hsieh’s deal. But he said the supervisors would oversee the leasing process this time to avoid cronyism and the kind of spending excesses allegedly committed by Kemper Sports. They would also mandate that new managers continue to employ union employees.

Unlike the city, Elsbernd argued, private businesses could invest large sums of money in rehabilitating the courses, especially Lincoln. "When it gets that kind of [cash] infusion," Elsbernd said, the course "is going to see a turnaround in revenue so that you can actually justify charging higher fees."

That is exactly the kind of scenario privatization foes fear: more exclusive golf courses on public land that raise greens fees beyond ordinary people’s means. "These courses are untapped gold mines," said golf instructor, former pro, and activist Justin Hetsler, who has formed a nonprofit group, Golf San Francisco, to lobby against the mayor’s plan. "But every penny spent at the courses should go back into them, not into someone’s pocket as profit." As for capital improvements, Hetsler, who also works as an accountant, argued, "The courses’ future revenue streams can secure credit for improvements. That does not require privatization."

For McGoldrick, this debate is about far more than golf courses. "I don’t even play golf," he told us. The push to outsource control of the links, he said, reflects a larger philosophical battle about what to do with publicly owned resources. "The mayor is a pro-privatization kind of guy. That’s his MO…. We’re seeing this happen all over the place, not just San Francisco. But for me, it’s just painful to watch city assets [be] given away. It really kicks me in the gut." *

Crazy

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Shortly before midnight on April 21, 2001, Jason Grant Garza walked into the psychiatric wing of San Francisco General’s emergency room and said he was having a mental health crisis. A staffer there refused to admit him. When Garza insisted on seeing a doctor, he wound up strip-searched and thrown into jail. Now, after six years of legal wrangling and bureaucratic buck-passing, SF General has officially conceded that Garza was denied proper service. But Garza says he is still waiting for the help he needs and the justice he demands.

As I sat across from Garza on a recent afternoon, it wasn’t hard to imagine a busy hospital worker or government official blowing him off rather than dealing with his frenetic energy. Diagnosed with a so-called "adjustment disorder," Garza was intense, to say the least. Running his hands through his wiry, gray-streaked hair and leaning over the table as he spoke, the 47-year-old Panhandle-area resident railed against "the system" for well over an hour. At one point, he likened his suffering to that of "a starving kid in Africa … [except] the starving kid in Africa still has hope. I have none of that."

Garza’s ire and his penchant for hyperbole might be exasperating at times, but his behavior also seems to bolster his main contention — that he needs help with his mental health, help that he claims a flawed public health care apparatus has failed to provide. He says his attempts to receive care and support have only exacerbated his condition, increasing his isolation and his sense of persecution. "I’m dead right," he said repeatedly. "And yet I’ve gotten nothing for it."

Garza declined to recount specific details of his story or be photographed. Instead, he referred the Guardian to a 2003 deposition he gave to deputy city attorney Scott Burrell. According to the deposition, his ordeal began shortly after his lover and "soulmate" killed himself in January 2001. That April, Garza became despondent over his loss and called a suicide hotline. The phone counselor directed him to visit SF General’s Psychiatric Emergency Services.

Garza took a cab to SF General and told PES charge nurse Paul Lewis that he was "wigging out" and badly needed to see a doctor. According to Garza’s deposition and other court documents obtained by the Guardian, Lewis asked him if he was suicidal. Garza is quoted in his deposition as responding, "If I was crossing the street and fell, I don’t know if I’d get up." Lewis determined that this answer meant Garza was not suicidal and thus not in need of emergency care. He asked Garza to leave. When Garza refused, the hospital’s institutional police escorted him out.

Garza did eventually get into the hospital that night, but not in the way he was hoping. After he was ejected from the premises, he stole back into the main lobby and called city police to help him receive treatment. But hospital cops returned instead and stuck him in a holding room. Sheriff’s deputies arrived four hours later, early in the morning of April 22. They arrested Garza for trespassing and possession of marijuana, even though he had a prescription for medical cannabis in his wallet.

At the city jail, Garza finally got someone to acknowledge that he was experiencing a psychiatric emergency. He says he told jail staffers that he "didn’t care if he lived or if he died," and as a result, he was stripped of his clothes and placed naked in a cell for his own safety. "That nurse [at the jail] classified me as an emergency," Garza told us. "So one says I’m in an emergency, and the other [at SF General] says I’m not…. At what point am I going to get any help?"

To recap: When Garza voluntarily tried to find care, he was told he was not sufficiently distressed. Only when he was arrested and thrown into jail for demanding help was he declared a danger to himself. His "treatment" consisted of a strip search and a jail cell.

But that’s only the beginning of the insanity.

The Emergency Medical Treatment and Active Labor Act was passed in 1986 to prevent hospitals from triaging out, or dumping, difficult or impoverished emergency room patients like Garza, a former business owner, cabdriver, and bookkeeper who has been on Social Security disability since 1995. EMTALA mandates that any patient who goes to an ER must be given an "appropriate medical screening examination." After he got out of jail, Garza sued the city, SF General, Lewis, and other city employees, contending they violated his rights under the act. He could not afford a lawyer, so he represented himself.

In one of the strangest twists of this twisted tale, Garza finally made it into the inner sanctum of SF General’s PES as a result of his suit against the city. But as with his night in jail, the circumstances of his psychiatric care were not what he was expecting.

While Garza was giving a deposition at the City Attorney’s Office in March 2003, his behavior prompted staffers to call in the authorities. According to an official report of the incident, Garza made suicidal remarks like "I have no desire to live." He also allegedly said that he "needed/wanted bullets and a gun." These statements are not present in the 168-page deposition. Garza did acknowledge to the Guardian that he became upset that day, especially when questioned about his experiences at SF General and the suicide of his lover, but he claimed that deputy city attorney Burrell "set him up" and that the calls to the mobile crisis unit and police were part of "an attempt at witness intimidation." Whatever the reason for the calls, Garza was detained for a 5150, a procedure under which subjects are involuntarily committed for up to 72 hours. The City Attorney’s Office had no comment on the issue.

Amazingly, police took Garza to the same PES department at SF General where the saga began. This time, though, he made it past the lobby and received a medical screening exam, marked by a report and other SF General paperwork. The mere fact of this report’s existence, Garza claims, proves that he did not receive proper care when he went to the hospital voluntarily in 2001. Deputy city attorney Burrell informed Garza by letter that the only record the hospital could produce from his 2001 visit was a triage report filled out by Lewis, the nurse. EMTALA does not permit triage of a patient without a subsequent medical screening examination.

However, in pretrial motions, the city argued that Lewis treated Garza like any other would-be patient and thus complied with the law: "EMTALA requires hospitals to provide a screening examination that is comparable to that offered to other patients with similar symptoms." In other words, Garza’s treatment may have been poor, but so was everyone else’s, so he had no case, the city contended. Judge Phyllis J. Hamilton agreed and tossed out the suit.

Perhaps the strongest proof of Garza’s "adjustment disorder" and need for psychiatric care, ironically, is the fact that he continued to press his case even after his lawsuit was tossed out, taking on a health care system that could make anyone feel unhinged. For the past six years, he says, he has badgered "10 to 15" local, state, and federal agencies, as well as government officials like Sup. Bevan Dufty and aides to House Speaker Nancy Pelosi (D–San Francisco). In the process, he has compiled an encyclopedic collection of letters, petitions, records, and even audiotapes of phone conversations.

"There isn’t a single agency that’s in charge of anything," Garza said of his dealings with the health care bureaucracy. "You’re parsed. You’re sliced and diced and parsed as a medical patient … and it’s designed to fail."

Not surprisingly, Garza’s efforts to find accountability have irked some officials and members of the bureaucratic corps. When he requested a copy of his arrest report from the Sheriff’s Department, he received a mocking denial letter signed "R.N. Ratched," a reference to the asylum nurse in Ken Kesey’s novel One Flew over the Cuckoo’s Nest. As the Guardian reported in 2002, Sheriff’s Department legal counsel Jim Harrigan eventually confessed to penning the letter, but only after Garza raised a fuss before the Sunshine Ordinance Task Force.

At Garza’s urging, the Centers for Medicare and Medicaid Services (CMS) asked the California Department of Health Services to investigate his treatment at SF General. In a letter dated Nov. 13, 2006, CMS official Steven Chickering informed Garza that the DHS "found no violation of statue [sic] or regulations." Chickering concluded his letter to Garza by warning him to back off. "Your frequent communications have become disruptive, distracting, and nonproductive. Therefore I have instructed CMS Regional Office staff not to accept telephone calls from you in this matter."

Despite his setbacks with the CMS and other agencies, Garza pressed on. He contacted the Office of Inspector General at the federal Department of Health and Human Services and asked it for help. OIG spokesperson Donald White declined to discuss specific details of Garza’s case, but he did tell the Guardian that "Mr. Garza came to [the OIG] directly, and we contacted CMS, and they conducted another investigation."

That second investigation found an EMTALA violation after all.

On April 19, Garza’s relentless — some might say quixotic or even crazy — pursuit of what he calls the truth finally produced some results. Nearly six years to the day after his 2001 visit to SF General’s PES, hospital officials inked a settlement agreement with the OIG in which SF General conceded that Garza had not been examined properly, a violation of section 1867(e)(1) of EMTALA. Section 6 of the settlement states plainly that the hospital "did not provide [Garza] with an appropriate medical screening examination on April 22, 2001."

The hospital agreed to pay a fine of $5,000. But Garza, as White told us, "is not a party to the settlement." In other words, he got nothing.

"That’s the way EMTALA works," White said, meaning that hospitals found in violation of the law pay restitution to the government, not to the victim. "We took the steps required under the law."

Reached by phone, Iman Nazeeri-Simmons, SF General’s director of administrative operations, acknowledged that hospital officials signed the settlement agreement but noted that in the course of the investigation leading up to it, "the state did give us a very thorough EMTALA survey and came out with no problems."

"It has been made clear to Mr. Garza that he is more than welcome to come back and access services here," she added.

Garza denied that he had received any follow-up calls from SF General offering services, and he balked at the idea of returning there: "That’s like sending someone back to the priest that molested them." He told us he would like to pursue further legal action against the hospital and the city but still has not found a lawyer. After the settlement was signed, he claimed, he asked officials at the OIG "where I could go now for legal and medical help, and they told me, ‘That’s not our jurisdiction.’ "

"So even though I’m dead right, I’m still without help because everybody’s pointing fingers … as opposed to getting me the help I need, because they don’t care, they’re unaccountable," Garza said. "Ten different agencies told me I was wrong, and now [with the settlement] I’m right?"

He threw up his hands. "Does that make sense to you?" *

Bar wars

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For the owners of the Hole in the Wall Saloon, the plan was simple: move their popular South of Market gay bar out of its dingy and dilapidated quarters to a much better spot around the corner. With numerous bars and nightclubs already along the stretch once known as the gay miracle mile, they assumed their place would fit right in.

But SoMa is changing — and the bar’s new neighbors in the increasingly residential district are using every regulatory trick in the book to block the move. Another bar, they say, is one too many.

The Hole in the Wall’s current location on Eighth Street frequently lives up to the place’s modest-sounding name. The plumbing stops up. The patched floor sags in places. And the bar tilts at an unnatural angle. Co-owners Joe Banks and John Gardiner, who are life as well as business partners, spent years seeking a new space for their eclectic, art-filled taproom. Last year they thought they had found an ideal spot a block and a half away on Folsom, between Dore and 10th streets.

At today’s prices, the building was a bargain — only $1.2 million. After making sure that the space, a former dance studio, was zoned to allow for a bar, Banks and Gardiner hired a local design-build firm to renovate the building. They hoped to open the new location by April 15, the bar’s 13th anniversary.

Now they just hope to open.

In early December project manager Jeff Matt was working on the build-out of the new space when a man named Jim Meko stopped by and asked him to give a letter to the owners. The letter, obtained by the Guardian, is on letterhead for the Western SoMa Citizens Planning Task Force. The task force, which Meko chairs, is advising the Planning Department on a new zoning plan for South of Market.

The letter was a copy of a five-month-old missive Meko had addressed to the real estate agent representing the building’s sellers. It warns that if the property were sold to someone who wanted to open a bar, the buyers could face "obstacles" such as protests to the state Department of Alcoholic Beverage Control and petitions to the Planning Commission.

Silvana Messing, the agent to whom the letter is addressed, told us she never received it. The agent representing Gardiner and Banks as buyers, who asked not to be identified by name, claims he didn’t see the letter either. But if he had gotten it before the sale, he said, "I probably would have advised [Gardiner and Banks] not to buy the place."

Meko, who lives around the corner from the Hole in the Wall’s new location, told us Banks and Gardiner "tend to live right on the edge of the law" as bar owners. He charged that the place used DJs without the proper entertainment permits and that there have been reports of drug dealing and nudity on the bar’s premises.

Gardiner admitted that he and Banks have employed DJs in the past but says they did not know that a DJ requires a special permit: "We thought an entertainment license was for places with live bands…. When we found out, we stopped it." Banks and Gardiner denied that drug dealing takes place at the bar. As for nudity, several Hole in the Wall regulars recalled a time in the mid-’90s when patrons occasionally drank in the buff, but they told us such behavior died down long ago.

Officer Rose Meyer, the San Francisco Police Department’s permit officer at Southern Station, gave the bar and its owners glowing reviews. Referring to Gardiner in particular, Meyer told us, "Southern Station would have no objection to him operating [at the new location]. I don’t foresee there being any problems."

"He has always been responsible" in the past, she said.

Meko claims the letter wasn’t meant to stir up opposition to the bar’s move. Instead, he said, he was simply trying to warn Gardiner and Banks about the simmering antinightlife attitude among SoMa residents. "It’s real precarious," Meko said. "Neighbors just rise up. They become real irrational…. They can go crazy."

When 10th Street resident Damien Ochoa received notice from the Planning Department about the new bar in early January, he didn’t rise up — at least at first. But given that his bedroom window is less than 50 feet from the bar’s back smoking area, he was concerned. As a result, he said by phone, he "started to do a little bit of research about the owners." In the course of his research, he got in touch with Meko.

Ochoa said Meko informed him that "they’re potentially not good neighbors." After a neighborhood meeting, Ochoa, Meko, and several other residents pitched in money to file a petition in Ochoa’s name asking the Planning Commission to look at the project under its power of discretionary review. Other neighbors lodged protests with the Department of Alcoholic Beverage Control. Within weeks all of Meko’s warnings to the real estate agent had come true.

As a result, work on the new bar is at a standstill. It cannot begin again until the protests work their way through hearings and appeals. It could be many months until the outcome is decided. Banks and Gardiner say they have staked their financial future on the new bar, with tens of thousands of dollars in construction loans set to come due before the end of the year. Without any income from the new location, they might not be able to stay afloat.

Banks told us the opposition to the bar’s move came as a complete surprise. The Hole in the Wall, he said, is "a place where everybody’s welcome. It’s a gay bar, but everybody’s welcome." To try to resolve the dispute, Banks and Gardiner hired Jeremy Paul, an experienced permit expediter, to shepherd the project through the regulatory process and to negotiate with Meko and the neighbors. The two sides are currently in talks about enclosing the back smoking area, a change that could cost more than $100,000. Paul expressed guarded optimism that the project will eventually go forward, but he told us the rancor over the new saloon is an example of "the identity crisis" San Francisco is going through.

"The Hole in the Wall relocation is a case study in how dysfunctional this system is," Paul said. Zoning in the area allows for a bar, he said, "and if these people don’t want to live in a bar district, they should check the zoning where they’re buying a house or renting an apartment" before moving there.

Paul added that if the residents are dead set against any new bars on their block, they should work to change the zoning.

The task force Meko chairs is at work on a new zoning plan for the area, which it will eventually present to the Planning Department. Some nightlife supporters worry that the goal may be a more residential neighborhood with no room for more bars.

Meko and Ochoa strongly deny that Meko is behind the residents’ actions. "I’m a neighbor," Meko told us, claiming that he is simply working with other neighbors to prevent the noise, smoke, and litter that could accompany the bar. As for the task force’s work, Meko said he is actually trying to bring more nightlife into SoMa, but only in appropriate areas with adequate "buffers" for the residents.

"I’ve spent the last 10 years of my life trying to broker peace between" bar owners and neighbors, he asserted. He noted that the Entertainment Commission, on which he also sits, is working to clarify permit rules for clubs and bars.

John Wood, a member of the San Francisco Late Night Coalition, said the neighbors "have reasonable concerns" about the new bar but those concerns "are being overblown." Wood noted that the bar is only rated for 49 patrons at a time and that by agreeing to soundproof the building and possibly enclose the back patio, the owners have been very accommodating. "Even nightclubs don’t go through those kinds of measures," he said.

Banks told us he and Gardiner desperately want to resolve the situation. "We’re willing to do anything within our financial means," he said. "We want to save it. The Hole in the Wall is our baby." *

Power play

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The San Francisco Board of Supervisors will soon decide the fate of the Trans Bay Cable (TBC), a privately financed, underwater power line that would plug the city’s electric grid into power plants in the East Bay.

Backers call the cable the best way to avoid blackouts, like those the city saw in the wake of the energy deregulation debacle of the late 1990s. But green power activists argue that the developer of this 57-mile extension cord is cashing in on California’s blackout fears and that approving the project would go against the city’s commitment to finding sustainable sources of energy.

Australian financial firm Babcock and Brown has staked $300 million on the cable’s construction and offered more than $28 million for a community benefits package if the project is approved. The developer plans to profit on its investment with a guaranteed 13.5 percent rate of return, granted to it by the Federal Energy Regulatory Commission for the sale of power running through the cable. Power plants in and around Pittsburg would generate most of the juice going though the 400-megawatt-capacity line. Ratepayers across the state would foot the bill.

The California Independent System Operator (Cal-ISO), the public benefit corporation in charge of the state’s electric grid, has asked for San Francisco supervisors to approve the cable as soon as possible so that it can begin service by 2010. Cal-ISO’s sole mission is to keep the lights on, and when there isn’t enough power in the system, it coordinates the dreaded rolling blackouts that most Californians remember from the energy crisis. CAL-ISO representative Larry Tobias brought up those dark days at a San Francisco Port Commission meeting Feb. 27. "Without the Trans Bay Cable project," he warned, "we will be back in that situation again." Electricity from the TBC, Tobias told commissioners, will give the city’s system the "reliability" to prevent blackouts.

Tobias said if supervisors reject the cable project, CAL-ISO will have to seek alternative proposals. At a January meeting of the city’s Local Agency Formation Committee (LAFCo), Tobias brought up a plan previously put forward by Pacific Gas and Electric Co., which looked to bring power across the bay from a substation in Moraga. In 2005, PG&E asked for more time to finish its design. CAL-ISO rejected its request and chose the TBC instead.

But some local activists say the city does not need the cable, or any other privately funded power line. Steven J. Moss of San Francisco Community Power told the Guardian a 400-megawatt cable would flood the power grid with "an enormous oversupply" of electricity. "That would be a waste of resources," he said. Moss claims CAL-ISO is understandably obsessed with reliability but the probability of its doomsday blackout scenarios is incredibly small. How small? At the Port Commission’s March 13 meeting, Moss said his calculations indicate there is only a "0.0002 percent chance that the [TBC] will be needed."

Even in the worst-case scenario, Moss told us, the city is only "looking at a 50- to 60-megawatt gap [in energy supplies] 10 years from now." His figures, he said, are based on Cal-ISO’s own estimates, adding, "The real way to plug that gap [is] demand management — solar, wind, all the things that San Francisco talks about constantly and that are good for us."

At the January LAFCo hearing, Sup. Ross Mirkarimi questioned officials from the San Francisco Public Utilities Commission (SFPUC) about the city’s plans to acquire its own power line from the Hetch Hetchy Reservoir’s hydroelectric stations. The city already owns most of the 200-mile transmission route from the Yosemite power stations, but PG&E possesses the last 30 miles and charges the city fees to bring electricity up the Peninsula from Newark. "Why can’t we have our own cable?" Mirkarimi asked SFPUC staffer Barbara Hale. She said the agency has been "studying the feasibility" of the proposed city-owned line but cannot yet commit to a firm "coming online date" like the TBC’s developer can.

For years the city has been seeking a way to secure full ownership of the Hetch Hetchy lines as a step toward forming a public power utility, independent of PG&E control. Ironically, if the TBC is built, a public power agency would own the cable and profit from it, just not San Francisco’s power agency. Pittsburg’s municipal utility is slated to take over the line once Babcock and Brown finishes its construction.

At the same hearing in January, Moss pointed to such projects as the proposed Hetch Hetchy line, as well as the city’s evolving plans to implement more renewable power sources, as proof that supervisors should reject the TBC. Calling the cable a "potlatch," Moss said, "Time is our friend" in power matters. "Technology will change and improve, [and] we’re potentially rushing into a very expensive project." Mirkarimi did not return calls for comment, but at the hearing, he indicated he is still studying the cable and has not yet formed a position on it.

Philip DeAndrade, chair of the city’s Power Plant Task Force, expressed concerns that Pittsburg’s power plants burn "very available fossil fuels" for their generation and that these cheaper sources of electricity "might take out of the market mix" more renewable energy. DeAndrade also brought up the four gas-fired combustion turbines, known as peakers, that the city is in the process of bringing online. With these generators scheduled to go into service in 2009, as well as several PG&E transmission projects either in the works or already operational, DeAndrade said, "I’m not convinced [the TBC] is a good deal for San Francisco. What it looks like is a good deal for Babcock and Brown and the City of Pittsburg."

CAL-ISO insists that the TBC is the best reliability option for the region. Spokesperson Gregg Fishman said the peakers and other local energy projects will allow the system operator to stop relying on the inefficient Potrero Hill Power Plant. "But all that really does is keep us even in San Francisco. It doesn’t improve the reliability of the system at all — and in fact, with load [demand] growth we are actually falling slowly behind." Fishman later mentioned the added benefits of having power come in from a different direction. Currently, all power lines feeding the city travel up the Peninsula.

On March 13 the TBC cleared its first local regulatory hurdle when the Port Commission approved a licensing agreement for the cable’s facilities. Port officials, along with staff from the Mayor’s Office and other city agencies, spent weeks negotiating the terms of the deal with Babcock and Brown. The agreement grants the port annual rent payments in excess of $1 million, a needed cash infusion for the strapped agency.

The community benefits package gives the port an additional $5.5 million, with an as yet undetermined portion of those funds to be spent on open-space and energy-related projects on port-owned land. In addition to payments to the port, Babcock and Brown pledged more than $23 million to the SFPUC for sustainable energy programs, such as solar, wind, and tidal power initiatives.

Despite passing the licensing and benefits packages, port commissioners and their staff said they were not ruling on the project’s merits in terms of energy policy. Port special projects manager Brad Benson, who spearheaded the negotiations, told us, "Port staff does not believe we have the required expertise to rule on energy policy aspects [of the TBC]. We believe the Board of Supervisors is the preferred venue" to settle those questions.

Reached for comment, several San Francisco supervisors, either directly or through staff, told us they are still making up their minds about the project. Sup. Sophie Maxwell told us even if the cable is built, the city will not allow the new power line to sidetrack its efforts to use more environmentally friendly energy. "The city’s policy is renewable energy. Fossil fuel is not our first and primary desire." But, she added, Cal-ISO "determine[s] our power needs, and so we have to go along with that. We can’t say, ‘No … you’re wrong.’ "

Babcock and Brown vice president Dave Parquet praised the Port Commission for approving the licensing agreement and benefits package, telling us, "We are very pleased with the port’s [approval] and look forward to the Board of Supervisors’ decision." Samuel Wehn, the TBC’s project manager at Babcock and Brown, said, "I don’t think San Francisco [officials are] going to put their city in the position where they’re not going to be able to provide the kind of energy that’s needed to keep this city running."

Moss said those kinds of arguments are "business as usual" for the state in terms of energy policy. "Here [we] go again with another large infrastructure project that doesn’t contribute to solving climate change or moving our energy agenda forward."

He added, "It’s classic political science. Out of [the average ratepayer’s bill] it’s pennies per month, so nobody cares about it … but that doesn’t mean it’s not an expensive project. It is." Babcock and Brown, he said, "saw an opportunity to make a very fat profit margin, and they went for it like any good profiteer." *

As the port turns

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Another setback to the Port of San Francisco’s plan to allow development of Piers 27–31 has brought about a new round of soul-searching at the beleaguered agency, as well as calls to change what may be allowed along the waterfront.

Last month the port’s latest private development partner, Shorenstein Properties, withdrew its plan for a mixed-use facility that relied on large amounts of office space to recoup the cost of renovating the dilapidated piers. The State Lands Commission, which watchdogs new waterfront construction for adequate maritime and public recreation uses, signaled in November 2006 that it would not support the office-heavy design. The port’s previous development partner, Mills Corp., pulled out last March after half a decade of public Sturm und Drang over its plan for a shoreside mall.

For years the Port Commission has looked to Piers 27–31 as a magic bullet for its financial woes. The port receives relatively little money from actual port operations, and as an enterprise fund department, it receives no subsidies from the city’s General Fund. Moreover, when the state transferred jurisdiction to the agency by way of the 1968 Burton Act, it handed down a good deal of debt and deferred maintenance.

Estimates now put the cost of fixing the port’s crumbling piers and properties at around $1.4 billion, with the vast majority of those costs not yet funded. With construction costs rising between 8 and 10 percent every year, port and city officials are starting to realize that even if Shorenstein’s plan eventually makes it through the gauntlet of government agencies and public oversight, the one-time infusion of cash it would provide would not be enough.

"It is a pretty dire situation," the port’s executive director, Monique Moyer, said at a Feb. 13 commission meeting. "And we do need all hands on deck" to try to solve the problem.

Board of Supervisors president Aaron Peskin, whose district includes Piers 27–31, has answered Moyer’s call. In the last several weeks, he has floated two new ideas that could have a wide-ranging impact on the 7 1/2 miles of shoreline under port control. As reported in the San Francisco Business Times, Peskin told a Hotel Council luncheon on Jan. 17 that he and Moyer have been discussing hotel development on the city’s piers, something Proposition H, passed by voters in 1990, currently prohibits.

Peskin told the Guardian his hotel concept is in the very early stages and stems from the fact that the State Lands Commission considers hotels to be allowable uses of waterfront property. He stressed that the proposal, which would require a new ballot initiative, is "not by any means a wholesale abandonment of Prop. H." It would instead seek to designate certain piers for hotels after consulting with neighborhood groups and other stakeholders.

"The question is are we willing to have a couple [or] three of them in the right places? That’s it," Peskin said, voicing his opinion that the "right places" would probably fit somewhere between South Beach and Pier 27. "Fisherman’s Wharf does not need any new hotels."

Peskin’s second idea involves replacing much of Shorenstein’s proposed office space at Pier 27 with a year-round cruise ship terminal. For years the port had a public-private partnership similar to the one with Shorenstein to build a new terminal at Piers 30 and 32. But its development partner, the Australian firm Lend Lease Corp., backed out of the deal last year. Shorenstein officials did not answer numerous requests for comment, but Peskin told us the company has expressed some interest to him in going forward with a cruise terminal design.

Not surprisingly, hotel industry representatives enthusiastically backed Peskin’s plan to revisit Prop. H. Hotel consultant Rick Swig highlighted the benefits of letting hotel developers rehab the waterfront. Any new hotels would be "built with somebody else’s money," he reasoned, "and generate tax fund money which goes to the General Fund of the city of San Francisco."

Others weren’t so excited. John Rizzo of the Bay Area chapter of the Sierra Club lamented the port’s reliance on private development as a means of solving its problems.

"There’s this massive infrastructure [problem], and the city [is telling] the port that you have to go out and find money with the resources you have, and what can they do? The resource they have is the waterfront, and the only thing they can do is develop it," he told us.

Rizzo called for the port to "be freed from [the] financial restrictions" of its enterprise agency status in order to preserve valuable open space from development. "We’re forcing [the port] to take this waterfront and put big buildings on it, and that’s not really what we want."

Jon Golinger of Citizens to Save the Waterfront, one of the groups that actively opposed the Mills Corp. mall, also cited problems with the port’s reliance on development. The infrastructure crisis, he told us, is "a bigger problem, and we can’t develop our way out of it alone. Certainly one project at a time is not working for the port or the community."

Neither Rizzo nor Golinger will comment on Peskin’s ideas until their groups have studied them. But Golinger did say, "Any big ideas like hotels need to be part of a much bigger solution." For example, he cited the San Francisco County Transportation Authority, which receives funding from a dedicated half-cent city sales tax. He added that other port agencies are partially subsidized by public money, such as the Port of Portland in Oregon.

Port officials seem to be coming to grips with the magnitude of their predicament and the failure of their reliance on private development. The conclusion to the latest update on the port’s 10-Year Capital Plan puts it bluntly: "The Port’s private/public partnership development model is broken."

At the Feb. 13 commission meeting, port staff proposed several new methods for finding cash, including tapping into future city Recreation and Park Department general obligation bonds. Moyer told the commissioners that such an arrangement would be a "paradigm shift" in the way the port funds projects, not only because it would use the city’s bond money, but also because the agency does not want to reimburse the General Fund, as it has been obligated to do since its inception.

One thing all parties agree on is something must be done. As Peskin told us, "The fact of the matter is, if we do nothing, we’re going to lose a lot of these resources." *

The search for Spocko

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For the better part of a year starting in late 2005, San Francisco blogger Mr. Spocko waged a quiet campaign against right-wing talk radio station KSFO, 560 AM. He wrote to its sponsors and played for them explicit portions of the station’s programming, such as shock jock Lee Rodgers’s call for antiwar protesters to be "stomped to death … just stomp their bleeping guts out."

The idea was to educate corporations about exactly what they were sponsoring, in the hope that Spocko’s work might staunch the free flow of hateful rhetoric. He also posted these audio clips on his blog, Spocko’s Brain. Several advertisers pulled their ads as a result of his campaign. But after MasterCard decided to cancel its KSFO spots in July 2006, Spocko said hostile commenters started to arrive on his blog and declare that he was in legal jeopardy.

"They said things like ‘They’re going to find you and sue you for everything you’ve got,’ " Spocko told the Guardian by telephone, the only way he will be interviewed because of fears for his personal safety if people learn his true identity.

Spocko suspected people at the station were behind the threats and forged on with his campaign. Then, on Dec. 22, 2006, lawyers for KSFO’s parent company, ABC — a division of Disney — sent Spocko’s Internet hosting company a cease and desist letter. The letter asserted Spocko’s clips of KSFO content were copyrighted material and demanded they be taken down from his site immediately. 1&1 Internet, the hosting company, not only complied but went one step further. It shut down Spocko’s Brain.

That’s when things got crazy.

Mike Stark — a bare-knuckle liberal blogger who famously asked Sen. George Allen, the Virginia Republican who was ousted in the last election, if he ever spat on his wife — took up Spocko’s cause. Within days scores of like-minded bloggers had posted the KSFO audio clips on their own blogs, essentially daring Disney to come after all of them. By the first week of the new year, the mainstream media — including USA Today, the San Francisco Chronicle, and the New York Times — had gotten hold of the story.

Spocko’s battle against KSFO took on the dimensions of a media turf war, with the right’s traditional ally, talk radio, pitted against the new and largely left-wing online media. Spocko was suddenly and reluctantly famous, despite the fact that few actually know who he is. KSFO and Disney "made me a public figure," he told us. "[Now] in their mind I’m fair game."

Spocko cites right-wing hit pieces — such as the book KSFO’s Melanie Morgan wrote about Cindy Sheehan, American Mourning — as examples of what happens to lefties who stick their necks onto the conservative-media chopping block. But he also fears something much worse than character assassination. He passed along an e-mail in which someone said he "sounds like a terrorist." Morgan and her fellow KSFO hosts regularly advocate harsh treatment for terrorists, to put it mildly.

"Morgan has told her one million members in Move America Forward [a pro–war on terror ‘charitable’ organization that Morgan chairs] and all her listeners that I’ve smeared her, I’ve attacked her, I’ve threatened her security," he told us. "That’s scary as hell."

Despite his professed fears, Spocko has held his ground. On Jan. 25 his lawyer, Matt Zimmerman, sent ABC a strongly worded letter demanding that it officially retract its cease and desist letter to Spocko’s old hosting company. Zimmerman works at the Electronic Frontier Foundation (EFF), which fights for people’s online freedom.

"[ABC-Disney] were clearly in the wrong here," Zimmerman told us. "They shouldn’t be in the habit of sending out baseless threats without following through on them."

At issue is whether Spocko’s posting of KSFO’s content constitutes what is known as fair use, an aspect of US copyright law that allows for certain limited usage of protected materials. Zimmerman’s letter to ABC goes through the standard four-point criteria for testing fair use. But more important, Zimmerman and Spocko say Disney did not even bother to follow the correct procedure for removing copyrighted material from a Web site.

The Digital Millennium Copyright Act of 1998 established a protocol for corporations to follow when they believe their materials have been poached. According to Zimmerman, however, Disney did not cite the DMCA in its letter to 1&1 Internet. Disney simply threatened 1&1 with unspecified legal action if it did not take down Spocko’s clips, and 1&1 caved.

"If they were serious about their beliefs that this was a copyright infringement, they could have sent a takedown notice" as specified in the DMCA, Zimmerman said. "But they didn’t do that."

Spocko’s lawyer also had some choice words for 1&1, the hosting company. Under the DMCA, Internet service providers are protected from liability, so long as they too follow proper protocol under the act. But because Disney did not cite the DMCA, Zimmerman said, 1&1 was not in any legal peril. The company "was under no obligation" to pull Spocko’s blog, he asserted. "People should be aware that in this case [1&1] decided that their own interests were more important than their customer’s."

Neil Simpkins, a 1&1 spokesperson, told the Guardian, "We are not a judicial system here. [This] issue is between Spocko and whoever is the owner of the copyright." When asked if 1&1 had consulted with legal counsel of any kind before pulling the blog, Simpkins answered that it had. But when asked for the names and contact information of his company’s legal advisers, Simpkins didn’t provide them. Officials at KSFO and ABC refused to comment for this story.

With the help of the EFF and his blogger allies, Spocko has found another ISP. Computer Tyme Web Hosting now carries his blog, which is back up and running. Some Spocko’s Brain readers have continued the campaign against KSFO. According to the blog, one Spocko devotee got the California state affiliate of the Automobile Association of America to pull its ads from the station.

But Spocko hasn’t yet posted any new audio clips nor has he contacted any advertisers since his run-in with KSFO’s parent companies. Spocko is conflicted. Part of him wants to jump back into the fray. But after the media maelstrom last month, he’s holding back, at least until ABC and Disney respond to his lawyer’s letter.

"I need to pay attention to what’s right, [but] I also need to pay attention to the real world," he said. "Media conglomerates can be ruthless."

Despite his newfound circumspection, he still believes KSFO and its fans will come after him. He even speaks of the outing of his true identity as a foregone conclusion.

"After my 15 minutes [of fame] are over — and I’m at 14:58 right now — they’ll still be out there, and they’ll still be pissed off," Spocko said. "And after they out me, I don’t know how this is going to impact me." *

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