Sarah Phelan

Pelosi says S-Comm is a waste of taxpayer dollars


House Democratic leader Nancy Pelosi called the fed’s troubled “Secure Communities” program a waste of money, as members of Congress held a press conference in Los Angeles to call for a suspension of the program. Illinois, New York and Massachusetts have already announced their withdrawal from S-Comm, following numerous reports that the program has led to non-criminal immigrants and even victims of domestic violence being caught up in the fed’s deportation dragnet, resulting in a chilling effect on community-police relations. And then there are the accusations that the feds engaged in systematic lying and dishonesty when it came to the question of whether states and municipalities can opt-out of the program. So, today Gov. Jerry Brown is being asked to end California’s participation, too.

Or as Pablo Alvarado, director of the National Day Laborer Organizing Network, put it, “What started as an effort to uncover the truth about S-Comm has evolved into a consensus view that the program should be scrapped all together. S-Comm has come to symbolize the President’s broken promises on immigration reform. The fact is that it has not yet been frozen is now being viewed as a betrayal and places the urgent need to end the program on the desk of our local officials. Our local officials were misled into the program and now is the time to lead us out. The tide is turning on the dangerous and dishonest ‘Secure Communities’ program. ICE has gotten into the snake oil business. It sold S-Comm to the American public under false pretenses.  It makes communities less safe, it imperils civil rights, and it is poisoning political efforts to reform unjust immigration laws.  Today, Rep. Becerra and the other Congresspeople said very clearly that this program has no place in California or anywhere in our democracy. We must prevent the Arizonification of our community whether it comes in the form of SB 1070 or S-Comm. There is an urgent need for California to do better for its residents and to suspend S-Comm immediately.”

Campos plans to plug loophole in SF health care law


Back in 2006, when Tom Ammiano was a supervisor, the Board approved his trailblazing San Francisco Health Care Security Ordinance (HCSO).  But the Golden Gate Restaurant Association, which presumably prefers you get served by folks who don’t have health insurance (“Waiter, there’s a booger in my soup!”) sued the city over the program. GRRA was hoping to invalidate the employer spending requirements of the City’s ordinance on the grounds that it violated the federal Employee Retirement Income Security Act. And in its quest, GGRA, which represents restaurants statewide and was concerned that Ammiano’s citywide legislation would spread to other municipalities, tried to take its case all the way to the U.S. Supreme Court. But in June 2010, the “Supremes” denied review to GGRA’s legal challenge, ending a contentious four-year legal battle over “Healthy San Francisco.” Or so everybody thought.But according to Sup. David Campos, who succeeded Ammiano as D9 supervisor and champion of the city’s health care legislation, some employers have been exploiting a loophole in the HCSo legislation to avoid their obligations under the law. And Campos now plans to stick a cork in this loophole.

Since 2008, HCSO has mandated that private businesses with 20 or more employees make minimum health care expenditures to, or on behalf of, their covered employees each quarter. But instead of paying for health insurance or paying into Healthy San Francisco (which provides workers with free or reduced-cost enrollment) some employers allocated money on paper to an account workers can access to reimburse out-of-pocket medical expenses.

“The problem is that most of these accounts are set up with ‘use-it-or-lose it’ provisions, “ a press release from Campos’ office explains. “The employers are credited with making the expenditures, but the balances in the accounts are wiped-out at the end of every year (or when the worker quits or gets fired) and the employers keep the money.” Oops.

So, Campos is introducing an amendment to the HCSO that would close what he’s calling a “don’t get sick in January” loophole (when employers zero-out the account balance at the end of the year, their employees begin the next year without any money available to reimburse health care costs). 

According to Campos, only 20 percent of the $62 million allocated to such reimbursement plans last year was actually reimbursed to the employees.“This means that $50 million, or 80 percent, of the health care expenditure was not spent on employee health care,” Campos stated. “Moreover, employers that meet the spending requirement via use-it-or-lose-it reimbursement accounts have a financial incentive to limit their use (in order to retain more funds at the end of the year).”

Campos’ office cites the words of auto mechanic Ron (who prefers not to use his last name for fear of retaliation by his employer) to explain this problem.

 “My employer provides me and my co-workers with a use-it-or-lose-it reimbursement account to satisfy part of its spending requirement under the Health Care Security Ordinance,” Ron stated. “But the employer does not allow us to use the money to pay for health insurance premiums and has limited the services eligible for reimbursement to such an extent that it is difficult to make good use of the account. As a result, we use a small portion of the money and lose the rest every year.  I finally decided to join Kaiser as a dependent of my wife who is a city employee.” 
Campos’ proposed amendment would close the loophole by re-affirming the traditional understanding of a “health care expenditure.”: employers will not be credited with making mandatory health care expenditures unless the expenditure is “irrevocably paid” (the money carries over from quarter to quarter and year to year to the employee.)

Campos’ proposed legislation also requires employers to provide written notice to their employees explaining how they are meeting their health care expenditure, and it streamlines penalties for noncompliant employers.

Zazie restaurant owner Jennifer Piallat says she supports the amendment because it “levels the playing field” for the vast majority of businesses in San Francisco that provide health insurance to their employees.

“A loophole should not disadvantage those of us who agree with the spirit of the Health Care Security Ordinance and who believe that employers should contribute to the well being of our employees,” Piallat stated.

Whether this loophole means that restaurants that were allegedly adding up to 4 percent in surcharges to customers’ bill to cover the alleged cost of paying contributions to their employees’ healthcare costs, have been pocketing the difference remains to be seen. An HCSO analysis by the city’s Office of Labor Standards Enforcement notes that the city’s Treasurer and Tax Collector did not collect industry data from businesses in 2009 and 2010, and therefore expenditures by industry are not available for those years.

But i industry data from 2008 shows that the “accommodations and food services” industry (think hotels and restaurants) “elected reimbursement plans as their primary expenditure at a substantially higher rate than any other industry in 2008,” the OLSE report states. (A table atttached to OLSE’s report shows that this rate was 47 percent in 2008—which was 36 percent more than the next highest ranking industry group listed.)

OLSE’s analysis also reveals that in 2010, 90 percent of all health care dollars were spent on health insurance, 3 percent were spent on Healthy San Francisco (the health access program San Francisco established as an option within HCSO) and only & percent were allocated to reimbursement plans. So, in other words, in 2010, most employers were doing the right thing by their employees, at least in terms of making required health care expenditures.

“The average reimbursement rate of money allocated to reimbursement plans in 2010 was low: only 20 percent of the $62.5 million allocated to such plans in 2010 was actually reimbursed to employees,” states the executive summary of OLSE’s analysis. “The remaining 80 percent, or $50.1 million, went unutilized. The median reimbursement rate for the 29 percent of employers (860 in total) that allocated money to a reimbursement plan in 2010 was even lower, just 12 percent.

OLSE’s report notes that this low utilization rate of reimbursement dollars is consistent with prior years.
“For example, in each of the past three years, over 50 percent of such plans (53 percent in 2008, 52 percent in 2009, and 57 percent in 2010) had a reimbursement rate of between 0 and 10 percent,” OLSE observed. “In other words, more than half of the employers who elected to meet their health care expenditure requirement (entirely or in part) by providing reimbursement plans retained over 90 percent of the money allocated to reimbursement plans. The increase in the percentage of employers utilizing reimbursement plans coupled with continued low reimbursement rates raises public policy concerns.”

Campos will be holding a press conference tomorrow (Friday June 10) at 11.30 a.m. in his office (Room 279 in City Hall) to flesh out the gory details. He’ll be joined by Tim Paulson, Executive Director of the Labor Council; Jennifer Piallat, owner of Zazie; Ron, auto mechanic; Tiffany Crain, Young Workers United; and Matt Goldberg, from the city’s Office of Labor Standards Enforcement.

Tipping point


On June 14, members of the Board of Supervisors will vote to appoint a new member of the Police Commission — in the wake of a messy string of alleged police misconduct scandals that, progressives argue, underscore why having strong civilian oversight is critical to ensuring a transparent, accountable police department the public can trust.

The appointment comes less than two months after San Francisco native Greg Suhr was sworn in as chief in the wake of Mayor Gavin Newsom’s decision to appoint former Chief George Gascón as the next district attorney — a move that has served to muddy the D.A. Office’s efforts to investigate the alleged police misconduct.

Further complicating the board’s choice is the heated battle that erupted over the appointment, led in part by members of two Democratic clubs that represent lesbian, gay, bisexual, and transgender communities.

The Alice B. Toklas LGBT Democratic Club has officially endorsed Julius Turman, a gay attorney and community activist who was a former assistant U.S. attorney and the first African American president of the Alice club. Turman currently works for Morgan, Lewis & Bockius, where he represents companies in actions for wrongful termination, employment discrimination, and unfair competition. He is also state Sen. Mark Leno’s (D-SF) proxy to the San Francisco Democratic County Central Committee and serves on the Human Rights Commission.

On the other side, members of the Harvey Milk LGBT Democratic Club, the voice of the city’s queer left, are supporting David Waggoner, an attorney and community activist who is a former Milk Club president. Waggoner has worked on police use-of-force policy and as a pro bono attorney for the National Lawyers Guild at the Oakland Citizen’s Police Review Board, and been a passionate advocate for the LGBT community, immigrants’ rights, people with disabilities, and the homeless.

The other two applicants for the post are Vanessa Jackson, a staffer at a women’s shelter with experience in counseling ex-offenders; and Phillip Hogan, a former police officer who serves on the board of the Nob Hill Association and has been trying to get on a commission for years.

Although both Jackson and Hogan have diverse experience with law enforcement — Jackson as an African American woman who claims the police have “no respect for people of color” and Hogan as a former police officer of Lebanese-Irish descent who manages real estate — neither has the support of the LGBT community. The position occupied by Deputy District Attorney James Hammer for the last two years, and Human Rights Commission director Theresa Sparks occupied before that, is widely considered to be an LGBT seat.



So now the fight is about whether Turman or Waggoner would be the strongest reformer.

In a recent open letter, former Board Presidents Harry Britt, Aaron Peskin. and Matt Gonzalez expressed support for Waggoner. “While most hardworking police officers perform their jobs admirably, insufficient oversight and poor management systems have led to significant problems,” their letter stated. “Despite these widely reported problems, the Police Commission has failed to adequately address these issues. San Francisco needs real reform, not more of the same. We believe David Waggoner will be that voice at this critical time.”

At the June 2 Rules Committee hearing, Waggoner proposed taking away master keys to single-resident occupancy (SRO) hotels from the police. “Significant abuse of that resulted in seriously tarnishing the department,” he said.

Turman made an equally impassioned — if less stridently reformist-sounding — speech. “Why would we allow an officer to enter a home, regardless of the master key rule, which I’m not a fan of?” Turman asked. He also said Tasers are dangerous weapons with unintended consequences. “I fear communities of color will suffer more from Taser use.”

Waggoner’s supporters noted that their candidate has more than 15 years of police accountability experience. Turman’s supporters vouched for his integrity, maturity, ability to build consensus, and “belief in strategically serving his community.”

In the end, Sups. Sean Elsbernd and Mark Farrell voted for Turman, while Rules Committee Chair Sup. Jane Kim voted for Waggoner.

That means Turman’s name has been forwarded to the full board with a recommendation. But because the Rules Committee interviewed all the candidates, the board can still appoint any of them.

At the Rules Committee, Sup. Scott Wiener voiced support for Turman. And Board President David Chiu recently told the Guardian that he has known Turman for years, has worked with him professionally, and will vote for him. “I found him to be fair, thoughtful, and compassionate,” Chiu said, noting that he believes the role of the commission is “to provide oversight and set policy.”

Sup. David Campos, one of the solid progressive votes on the board and a longtime Milk Club member, believes Waggoner would make an excellent commissioner but is a friend of Turman, and believes he’ll be a strong voice for reform. “Sean [Elsbernd] and Mark [Farrell] could be in for a big surprise if Julius gets appointed,” Campos mused shortly after Elsbernd and Farrell voted for Turman.

Campos recalled how he and Turman started working at the same firm years ago. “So I got to know him well,” he said, adding he is “like a family member.

“By virtue of his involvement with Alice, some folks think Julius will be a certain way,” Campos added. “But I believe he’ll take a progressive point of view on the issues. He has both the knowledge and the experience with the police, he understand the important role that police oversight and the Police Commission play in making the SFPD accountable.”

Kim told us that she primarily voted for Waggoner because she knows him the best, and not out of concern that Turman wouldn’t do a good job. “I’m more familiar with David and that’s what tipped the scale,” Kim said. “It’s great to have two strong LGBT attorneys who have a clear understanding of public safety issues, the law, and are advocates for the community.”

But Debra Walker, who ran against Kim last November, steadfastly supports Waggoner. “Julius has been active in the Alice B. Toklas club for a while, he’s a prosecutor, while David is more of a citizen’s defense attorney,” she said.

Turman continues to be dogged by reports of domestic violence, thanks to a lawsuit that Turman’s former domestic partner Philip Horne filed in March 2006 alleging that Turman came into his house when he was sleeping on New Year’s Day 2006 and tried to strangle him.

Horne claimed he “was terrified that the lack of air supply would cause him to pass out and potentially die at the hands of such a jealous and unmerciful former lover.” He alleged he was able to calm Turman down only to see him get enraged again and punch Horne in the face seven to 10 times. When Horne decided he needed to go to the emergency room, the complaint states, Turman grabbed his phone and keys saying, “If you leave, you’ll never see the cats (alive) again,” and “I will report you to the state bar.”

Horne claimed he ran outside screaming for help and that when SFPD arrived, they arrested Turman for domestic violence and called an ambulance for Horne.

Turman responded in July 2006 to what he described as Horne’s “unverified complaint,” arguing he acted in “self-defense” and that the conduct Horne complained of “constituted mutual combat.” He added that “damages, if any, suffered by Horne were caused in whole or in part by entities or persons other than Turman.”

In the end, no criminal charges were ever filed against Turman and the case was settled out of court. Turman now says “I’ve done nothing wrong and these allegations are false.”

Campos warns people not to jump to conclusions. “We need to remember that there is a presumption of innocence,” Campos said. “Yes, there was a court case, but there was never a conviction. Yes, there was a settlement, but people do that for a lot of reasons.”

Turman told the Rules Committee that the incident was from “an extremely difficult time that is now being used against me as a political sideshow.”

Meanwhile, Campos notes that without a reform-minded mayor, there will be only so much any board-appointed police commissioners can do. “What we really need to implement police reform is a mayor who is willing to do that,” he said. “Otherwise it’s going to be very difficult because the mayor still gets to appoint four commissioners and mayor still gets to control who is in charge of the police department.”



Civil liberties advocates praised as a “first step in the right direction” Suhr’s May 18 decision to issue an order clarifying that SFPD officers assigned to the FBI’s joint terrorism taskforce should adhere to SFPD policies and procedures set by the Police Commission, not FBI guidelines.

But in the coming months, the commission will have to decide whether to push a Portland-style resolution around SFPD involvement with the FBI. The commission also will be dealing with fallout from the other scandals, including the crime lab, the use of force against mentally ill suspects, and videos that allegedly show police conducting warrantless search and seizure raids in single residential occupancy hotels.

These scandals have progressives arguing that it’s critical that the board’s three seats on the commission are occupied by applicants with proven track records of reform.

Waggoner notes that in 2003, voters approved Prop. H., which changed the composition of the commission from five to seven members. Four are appointed by the mayor; three by the board.

Last year, he said, the commission made significant progress in the right direction when it adopted new rules after the Jan. 2 shooting of a man in a wheelchair in SoMa. “That was not the first time an unarmed person with a disability was killed,” he said. “After Prop. H and a crisis, the commission finally took steps. It remains to be seen if Chief Suhr will implement that.”

Waggonner said the current arrangement “creates tension between people who are more willing to defer to the chief on policy issues and being in an advisory capacity, as opposed to people who want to be in the forefront of setting policy.”

That tension played out when Commissioners James Hammer, Angela Chan, and Petra DeJesus tried to find consensus on the Taser controversy last year. “Overall they worked well together. But there’s been no progress yet on Tasers,” he said, noting that the commission eventually decided on a pilot project.

Waggoner said he would be in favor of the commission having a more active role and exerting its authority under the city charter to set policy, but in collaboration with the chief.

The Police Commission’s May 18 joint hearing with the Human Rights Commission about FBI spying concerns was a symbol of the broader issue at the Police Commission. The majority of the commission didn’t see any major problems — but the progressives were highly critical. “Is the commission there to set policy and take leadership, or is it there in an advisory capacity?” Waggoner asked.

With Hammer’s departure, Chan and DeJesus, both board-appointed women of color, are the most progressive members of the commission. Chan hopes Hammer’s replacement believes in strong civilian oversight. “We should never be a rubber stamp for the police department,” he said. “We need to take community concerns very seriously. When the police department is doing great things, we should support them — but if we see something wrong, we should not be afraid to speak out.”

Turman told the Guardian that “being the voice for reform and advising are not mutually exclusive roles — and an effective police commissioner needs to be both.

“I would advocate for series of meetings with representatives from the Arab community, the SFPD, and the FBI to increase communication and understanding of each side’s perspective on exactly what we need to implement in San Francisco,” Turman said.

Asked more about Tasers, Turman said that “one of the things I would be interested in pursuing is a recognition by some that female officers are less likely to incapacitate during an arrest, which could lead to learning for the larger police force.”

But does this means Turman will turn out to be a swing vote for Tasers? Only time — and the board’s June 14 vote — will tell.

Behind the all-smiles budget


When Mayor Ed Lee released his 2011-12 budget proposal June 1, all was sweetness and light at City Hall.

The mayor delivered the document in person, to the supervisors, in the board chambers. Sup. Carmen Chu, chair of the Budget Committee, was standing to the mayor’s right. Board President David Chiu was to his left. There was none of the imperious attitude we’d come to expect in the Gavin Newsom era — and little of the typical hostility from the board.

As Sup. David Campos, who was elected in November 2008, remarked afterward: “It’s the first time since I’ve been elected that the mayor has taken the time to come to chambers. It’s reflective of how this has been a lot more of an inclusionary process.”

Lee went even further. “This is a pretty happy time,” he said. “There are no layoffs, and instead of closing libraries we’ll be opening them.” That earned him an ovation from assembled city leaders, including mayoral candidates City Attorney Dennis Herrera and Assessor-Recorder Phil Ting along with District Attorney George Gascón. “I think this budget represents a lot of hope.”

It’s true that this year’s cuts won’t be as bad as the cuts over the past five years. It’s also true that the pain is spread a bit more — the police and fire departments, which Newsom, always the ambitious politician, wouldn’t touch, are taking their share of cuts.

But before everybody stands up and holds hands and sings “Kumbaya,” there’s some important perspective that’s missing here.

Over the past half-decade, San Francisco has cut roughly $1 billion out of General Fund spending. The Department of Public Health has eliminated three- quarters of the acute mental health beds. Six homeless resource centers have closed. The waiting list for a homeless family seeking shelter is between six and nine months. Muni service has been reduced and fares have been raised. Recreation centers have been closed. Library hours have been reduced.

In other words, services for the poor and middle class have been slashed below acceptable levels, year after year — and Mayor Lee’s budget doesn’t even begin to restore any of those cuts.

“We’re not ready yet to restore old cuts,” Lee told the Guardian in a June 2 interview. “It was enough for us to accomplish a pretty steady course and keep as much. Particularly with the critical nonprofits that provide services to seniors and youth and homeless shelters, we kept them as close as we could to what last year’s funding was.”

But the current level of funding is woefully inadequate. As Debbi Lerman, administrator of the Human Services Network, noted, the people who work in the nonprofits Lee was talking about haven’t had a pay raise in four years — even though the cost of living continues to rise. “Our costs have gone up with cost of inflation,” she noted.

She said the cuts over the past few years have deeply eroded services for children, homeless people, substance abuse programs, and others. “There have been significant cuts to every area of health and human services.”

And in a city with 14 billionaires and thousands more very wealthy people, Lee’s budget is distinctly lacking in significant new ways to find revenue.



Just about everyone agrees that the budget process this year has been far better than anything anyone experienced under Newsom. “He [Mayor Lee] listened to everybody,” Lerman said. “That doesn’t mean they fixed everything. Mayor Lee fixed as much as he could.”

At his press conference announcing the release of the budget, Lee thanked Police Chief Greg Suhr for having already made significant cuts through management restructuring and for considering an additional proposed cut of $20 million.

“We want to thank you for that great sacrifice,” Lee said, addressing Suhr, who sat in front row of public benches, dressed in uniform. Lee next acknowledged that adequate funding for social services also helps public safety. “Without those services, officers on the street would have a harder job,” he said.

Lee also praised the departments of Public Health and Human Services for helping to identify $39 million in federal dollars and $16 million in state dollars, to help keep services open and the city safer.

Lee noted that San Francisco no longer has a one-year budget process and has just released its first five-year financial plan as part of its decision to go in five-year planning cycles.

“To address this, I’ve asked for shared sacrifice, ” Lee continued, adding that he recently released his long-awaited pension reform charter amendment, emphasizing that it was built through a consensus and collaborative-based approach.

Lee also said he would consider asking voters to approve what he called “a recovery sales tax” in November if Gov. Jerry Brown is unable to extend the state’s sales tax. That would bring in $60 million — but it is only on the table as a way to backfill further state budget cuts.

Lee observed that San Francisco is growing, the economy is looking brighter, and unemployment is down from more than 10 percent last January to 8.5 percent today. He plugged the America’s Cup, the city’s local hire legislation, the Department of Public Works’ apprenticeship programs, and tourism, both in terms of earmarking funding in the budget for these programs and their potential to boost city revenues.

He said his budget proposed $308 million in infrastructure investments that include enhanced disability access, rebuilding jails, and energy efficiency, and is proposing a $248 million General Obligation bond for the November ballot to reduce the street repair backlog.

“We will get these streets repaired,” he promised.

“This submission of a budget is not an end at all, it’s the beginning of the process,” he continued, going on to recognize Chu for her work getting the process rolling and thanking Budget Analyst Harvey Rose in advance. “I do know his cooperation is critical.”

And he concluded by thanking each of the supervisors. “I will continue enjoying working with you — we need to keep the city family tight and together.”

The sentiment was welcomed by supervisors. “As he said, this is the beginning of the process, and it’s an important and symbolic step” Campos said. “The budget shows that a lot of good programs have been saved. But there is still work to do.

“There are still gaps in the safety network,” he added, singling out cuts to violence-prevention programs. “It’s my hope they will be restored.”



But even if the cuts for this year are restored, the city budget is nowhere near where it ought to be. “We still had to make cuts,” Lee acknowledged.

“We did consider very seriously a whole host of revenue ideas that we had,” he said. “They were not off the agenda at all.” At the same time, he noted that state law requires a two-thirds vote for new taxes (although that threshold drops to 50 percent in presidential election years). “We decided that it’s not that they were bad ideas, but that we wouldn’t be able to sell them at this time.”

Lee praised some of the revenue ideas that have been suggested in the past year, including the alcoholic beverage fee proposal by Sup. John Avalos, which Lee called “a pretty good idea.” He said that “a year or two from now” an additional sales tax and a parcel tax (for the police or for schools and open space) might be on the agenda.

The city now has a multiyear budget process and projections are supposed to go beyond a single year. But what’s missing — and what nobody is talking about — is a long-term plan to restore critical city services to a sustainable level. That means talking — now — about tax proposals for 2012 and beyond and including those revenue streams in long-term budget planning.

Because the city parks, the public health system, the libraries, the schools, affordable housing programs, and the social safety net are in terrible condition today, the result of year after year of all-cuts budgets. And while the supervisors and the mayor wrangle over the final details, and advocates try to win back a few dollars here and a few dollars there, it’s important to recognize that this budget does nothing to fix the damage.

“We’re about $10 million short of what we need right now to keep service providers at current levels,” noted Jennifer Freidenbach, who runs the Coalition on Homelessness. “But we also need to restore the health and human services system that was slaughtered under Gavin Newsom.”

Hall blasts Treasure Island deal


Mayoral candidate Tony Hall, who also happens to be a former executive director of the Treasure Island Development Authority, just blasted Mayor Ed Lee’s endorsement of the Treasure Island deal:

“This deal will never benefit San Franciscans because no banker will advance a billion dollars in pre-development costs that are necessary to shore up and detoxify a man-made island that sits in the middle of a bay on top of one of the strongest earthquake faults in Northern California,” Hall claimed in a June 7 press release. “The developers themselves are nearly bankrupt. I’m very disappointed in Mayor Lee for promoting this deal. As an administrator, he should know better and be strong enough to tell the people the truth.”

Hall went on to vent about the “City Family,” referring to a phrase that Mayor Ed Lee seems to be fond of using anytime he is trying to build consensus at City Hall.

“In the past few weeks, we have seen a trend developing from the so-called ‘City Family,’” Hall observed. “In May, they proposed a hasty pension deal that barely scratches the surface of the problem. Now in June they are ready to pass a phony Treasure Island deal that benefits the connected developers and their consultants, but will probably never benefit San Franciscans. All these celebrated agreements seem timed to paper over important issues with hasty solutions right before the Mayoral election.  What’s next for July? An agreement to build a permanent rainbow across the Bay? The ‘City Family’ might try to take these issues off the table, but my mayoral campaign is going to put these issues right back squarely in front of the voters.”

How Recology will attack the garbage initiative


We got an interesting call June 5 from a polling company. These folks typically ask if any member of the household works for the news media, and we have to figure out whether to lie and hear the questions or tell the truth and save 20 minutes. This time, the caller didn’t bother. So we agreed to answer “a few questions about the upcoming mayor’s race.”

Except the questions weren’t about the mayor’s race at all. They were about the proposal to mandate competitive bidding in the city’s garbage contract. And the poll, which was clearly testing different pro and con arguments, gave a good sense of how Recology, which holds the current monopoly, will try to frame the issues.

For starters, the pollster kept saying — without any evidence — that the proposal was the work of Waste Management Inc., a giant national garbage company. Among the arguments he presented: “This initiative is pushed by WMI, which puts profits ahead of customer service.” The pollster also charged that WMI had broken environmental laws and had a bad labor record.

Among the other arguments: “San Francisco should stick with a home-grown company that has done a good job.”

“The recycling system works.”

“A multinational Houston-based conglomerate wants to take over San Francisco’s recycling program.”

“Workers would lose their jobs.”

“Garbage rates would go up, and recycling would go down.”

“Politicians would have control over your garbage rates.”

That’s a nice snapshot of the campaign we’re going to see in the fall — and it’s utter bullshit.

The initiative is the work of retired Judge Quentin Kopp, Potrero Hill activist Tony Kelly and a few others. And it’s all about bringing competitive bidding to the city’s garbage contract. Waste Management Inc. has zero involvement.

“They haven’t give us a dime,” Kelly told me. “Nobody from Waste Management was involved in any way in our meetings or discussions. This isn’t about Waste Management Inc.; this has to do with the city and competitive bidding.”

In fact, the original idea came from the board’s budget analyst, Harvey Rose.

David Tucker, Waste Management’s community and public relations director, was happy to go on the record and “let the world know that WM has not contributed any funding to this effort.”

“While it would be nice to be able to compete in San Francisco, the truth is that our focus is on the city’s landfill disposal and facilitation agreements,” Tucker said, referring to the battle that WM has been waging for several years now to have a fair chance at being selected as the company that disposes San Francisco’s trash in a landfill outside city limits. (Right now, WM disposes the city’s trash at its Altamont Landfill near Livermore, and Recology hauls the city’s trash across the Bay Bridge to Livermore. But the city’s Department of Environment has tentatively awarded the landfill disposal AND the facilitation (which refers to transporting the trash) to Recology, essentially giving them a monopoly over the city’s entire waste stream, starting in 2016.)

Kelly told us he has nothing against Recology: “If Recology wins the competitive bid for the next century, it’s fine with me.”

Fine with us, too — and the odds are that’s exactly what will happen. The initiative states clearly that the bids have to include zero waste goals and worker protections — and the city already gives preference to locally owned companies. (You can read the text here (pdf)).

But in the process, Recology will have to accept better controls on rates — and will no doubt have to pay a franchise fee. So the city will get a better deal.

Recology knows that if the question on the ballot is framed as whether the garbage contract should be up for competitive bidding, about 90 percent of the voters will say yes. So the only way to block this initiative is to muddy the waters and make it about another company that has no role in the campaign.

Recology’s got a sweet deal, a no-bid $220 million deal that dates back to the 1930s. The company wants to protect it — and apparently is prepared to use whatever misinformation is necessary to do that.

Avalos introduces SF-San Mateo Local Hire agreement


Last year, when Sup. John Avalos introduced and eventually won passage of the city’s landmark local hiring ordinance, a number of battles broke out, as folks in neighboring municipalities began fretting that the new law could shut them out of construction jobs in San Francisco. Avalos worked hard to make sure their concerns were addressed, but he continued to encounter resistance from San Mateo County.
And in February Assemblymember Jerry Hill (D-San Mateo) who is facing term limits and reapportionment, introduced a bill in Sacramento that was intended to limit the reach of the Avalos legislation, which aimed to put more San Francisco residents to work on city-funded construction projects.
Hill’s legislation, AB 356, sought to prohibit the use of state money on local-hire projects and prevent Avalos’ legislation from being applied to the city’s projects in counties within 70 miles of San Francisco, including upgrades to the Hetch Hetchy water system on the Peninsula.
“San Francisco can use its own money any way it wants,” Hill said at the time, “Taxpayers from San Mateo, Ventura, Solano and other California counties shouldn’t have to pay for the increased construction costs that will result from San Francisco’s local-hire ordinance.”
Plus, he said the city should be thinking regionally, not hyper-local.
But, as Avalos repeatedly pointed out, his local hire law doesn’t apply to projects funded with state money, and it only mandates 20 percent local hire this year, gradually increasing to 50 percent local hire over the next seven years.
At the time, the Guardian predicted that Hill’s bill would “probably go down the crapper because the San Francisco legislators, who have a fair amount of clout up in Sacramento these days, aren’t going to support it. Assemblymember Tom Ammiano and state Sens. Mark Leno and Leland Yee have all signed a letter supporting the city’s local hire law.”
And sure enough, after the mayors of San Francisco and Los Angeles, not to mention organizations from San Francisco, Oakland, Los Angeles and San Diego, and the State Building Trades Council made their views known, Assemblymember Charles Calderon requested June 3 that Hill’s legislation by ordered to the inactive file.
Local supporters of Avalos’ legislation say Hill’s bill got pulled because there was no chance in hell that it would ever get out of the State Assembly.
But Hill’s office claims it was because San Francisco and San Mateo reached a deal last week, and that this outcome was Hill’s intention all along.
“What happened was that the Assemblymember Jerry Hill put together a bill and his intention was to get his constituents in San Mateo a memorandum of understanding with San Francisco—and that MOU was signed last Friday (June 3) by San Francisco Mayor Ed Lee and San Mateo County Board President Carole Groom,” Hill’s legislative aide Aurelio Rojos told the Guardian.
And according to a statement that Hill’s office released June 3, Hill welcomed the signing of a reciprocity agreement that “ends a dispute between the counties of San Mateo and San Francisco by creating a level playing field for San Mateo County residents working on construction  projects in the county funded by San Francisco.”
Hill’s press release claims the MOU was “forged following weeks of negotiations that began in February after Hill introduced legislation that would have limited San Francisco’s recently enacted local hire ordinance to its geographic boundaries. The agreement allows contractors working on San Francisco public works projects located in San Mateo County to hire an equal number of workers from the two counties.  As a result of the agreement, Hill has agreed not to move forward with his legislation, Assembly Bill 356.”
 “San Mateo County construction workers will no longer be penalized by San Francisco’s local hire ordinance as a result of the agreement,” Hill said.  “I applaud Mayor Lee and Supervisor Groom for creating a level playing field that will enable San Mateo residents to work on construction projects within their county.”
 Hill claims that  with San Francisco scheduled to award $27 billion in public contracts during the next decade, the city’s local hire  provision would have impacted the ability of San Mateo County residents to work on construction projects in their county, including the San Francisco International Airport, the jail in San Bruno, Hetch Hetchy waterworks and other facilities on the Peninsula.”
Either way, today, Avalos, who has long maintained that Hill either didn’t understand his legislation or was refusing to understand the legislation, and Mayor Ed Lee are introducing a resolution, “approving a local hiring agreement between San Francisco and San Mateo County,” and reinforcing equal opportunity guaranteed under San Francisco’s Local Hire Policy and community-labor partnerships
Avalos, who is running for mayor, apparently led the negotiations alongside Lee to forge the agreement which allows contractors performing San Francisco public works projects in San Mateo County to equally draw workers from San Francisco and San Mateo to meet required staffing levels under the local hiring ordinance.
The agreement covers San Francisco-funded projects located in San Mateo County, including the San Francisco airport.  Under the agreement, San Mateo workers are included by the local hiring requirement for projects  in San Mateo County, and will be able to fill up to half of the local hiring requirement.
“This is a win-win for workers in San Francisco and San Mateo. Whatever we can do to support job creation in the Bay Area region during this very long recession is going to be very meaningful to the families that are struggling to stay in this area,” Avalos said.
“The achievement in securing this resolution is really a testament to the strength of communities united,” said Brightline executive director Joshua Arce. “Sup. Avalos always intended that his legislation would expand, in terms of opportunities on city-funded projects, outside San Francisco. On San Francisco-funded work in San Mateo, San Francisco and San Mateo workers will be working side by side, taking advantage of the local and regional aspects of the legislation.”
Or as Avalos put it,  “The local hiring ordinance is about making sure we create job opportunities in San Francisco when the city invests taxpayer dollars in construction projects. We included the flexibility to craft reciprocal agreements with other cities and counties, and that’s exactly what was accomplished in the deal that was reached between San Francisco and San Mateo.”

Treasure Island goes to the Board


There’s three reasons I’ll always remember the Chronicle’s Phil Bronstein: he used to be married to Sharon Stone, he got bitten by a Komodo Dragon at the L.A. zoo, and he had the audacity to write a column in the Chronicle that was titled “Treasure Island eco-dream is bad choice for funds.”
Now it’s true that Bronstein was a 1986 Pulitzer Prize finalist for his work in the Philippines. But that was 25 years ago, and I didn’t read what he wrote, so I can’t comment on the quality of his work  then. But now I live in the East Bay and drive past Treasure Island most days of the week—and I have been waiting for someone at the Chronicle to finally voice something other than their usual preppy praise for this increasingly large development in the middle of the Bay.
And Bronstein certainly did have plenty to say about Treasure Island. And it wasn’t the usual upbeat pap about “bold and robust visions” that the Chron usually serves up when it concerns anything that involves Lennar and public-private development. Instead,  Bronstein began by describing T.I.  as a “onetime secretive Navy base filled with deer, political patronage and who knows what buried in the ground.”

Now, part of Bronstein’s fire may have been a result of him writing his column in April, a few weeks after a massive earthquake and tsunami hit Japan, triggering a nuclear meltdown. Or two or three.

Bronstein’s infamous rant even mentioned some of the radiologically impacted things at Treasure Island that, as he put it, “leached into the soil from weaponry or other deadly items: radium and PCBs 100,000 times the acceptable levels.”
And then he compared Lennar and billionaire Ron Burkle to “contemporary development pirates.” Believe me, that was a surprise to read in the Chronicle.

“This year, they’re scheduled to break ground on a huge multibillion-dollar public-private ecotopia mini-city built upon toxic waste and landfill,” Bronstein wrote. “This glorious contradiction might become a triumph of super-green living and high-end dreams. But it also represents something else: bad choices about how to spend public money in ever tighter times.”

Bronstein noted that the Board has a brief panic in April when they considered whether a Japan-style disaster could wipe out the T.I. plan, but that Rich Hills of the Mayor’s Office said the “disaster potential has already been addressed.”
“Unless we have what Hills called ‘a freak disaster,’” Bronstein added with a cutting bite that his Komodo dragon would have been proud of, including Bronstein’s inclusion of the fact that Treasure Island is on the California Emergency Management Agency’s tsunami inundation map, and that while we are coughing up $105 million to developers who want to profit from high-density living on T. I, all of us are neglecting aging infrastructure that we already have.

“While T.I. developers are busy putting some kind of shower cap-like cover over the land so trees and foundations don’t touch toxic ground that can’t and won’t be cleaned up, our children stand a pretty good chance of being flattened like pancakes in existing structures while they’re learning math and history during the next, inevitable big quake,” Bronstein concluded.
Meanwhile, those of us who drive the seismically-compromised Bay Bridge each day can’t help wondering how folks who decide to move to the development that’s being planned for Treasure Island will ever get off the island—unless they have a pirate ship.

That’s because every morning, we get to see a long line of drivers waiting—without much success—for drivers on the Bay Bridge to slow down and let them into the traffic.

Those of us who sometimes commute by ferry also know how tricky it is try and catch the last ferry, which leaves the San Francisco Ferry Building at 8:25 p.m. That’s way earlier than most commission meetings end. And earlier than most nightlife begins.

And then there’s the question of what happens when you get back to Treasure Island–and realize you forgot to buy milk, collect the dog, or pick up the kids from day care.

Now, maybe the city and the developers believe they have thoroughly considered and answered all these questions. But have they done any outreach to East Bay commuters, whose journey will likely be further impacted by the T.I. plan? If so, I certainly haven’t heard about it. And what about the folks in Berkeley who likely won’t be able to see San Francisco once a bunch of high-rises pop up in the Bay? Have they been consulted?

This Tuesday (June 7) at 5 p.m., the Board will hear an appeal of the city’s Treasure Island environmental impact report and consider a huge batch of related documents. (And I’m willing to bet that most current supervisors don’t know too much about this plan, and probably have only flipped through the thousands of pages of documentation related to it)

The appeal was filed by the Sierra Club, Golden Gate Audubon Society, and Arc Ecology, who last year filed an appeal around the city’s EIR for Lennar’s massive Hunters Point Shipyard/Candlestick Project. Only this time, this trio is being joined by a group of Treasure Island residents—and former Board President Aaron Peskin.

Which reminds me: Three weeks after Bronstein wrote his amazing Treasure Island hit, piece, his fellow columnists at the Chronicle, Phillip Matier and Andy Ross, were back, sounding much more like the Chronicle’s attack dogs usually do, when it comes to anyone who dares to find the city and Lennar’s massive plans less than perfect: “Peskin, who as a supervisor was notorious for his middle-of-night phone rants to department heads, called the proposed high-rise plan that just squeaked by the Planning Commission a ‘laughingstock mistake,’” M& R crowed.

But in the end, they quoted the very thought that Peskin wants M&R to print and Chronicle readers to consider about the city’s current Treasure Island plan:

“It will horrify San Francisco and the Bay Area for decades to come,” Peskin said.

Now, as the folks joining Peskin in opposing the city’s current plan note, they aren’t trying to stop the development of Treasure Island. They are simply fighting the latest plan.

“The developer and the city already have an approved EIR and project plan for a 6,000 unit smaller scale, more transit friendly project that was passed in 2006,” Arc Ecology states in a flier that it plans to distribute at the June 7 hearing. “Environmentalists and many of the appellants supported that plan. Don’t be fooled by the rhetoric. It was the earlier plan that won all the awards for sustainability.”

And as Arc points out, the city’s latest EIR and the plan currently before the Board is an entirely different animal from the city’s 2006 plan.

“It’s 25 percent bigger than the 2006 plan, tipping the scales on its impacts,” Arc states. “It increases the housing by 25 percent to 8,000 units, decreases transit service and affordable housing and competes with hotels and businesses that already exist downtown.”

“What can you do? Tell the Board to go back to the 2006 plan,” Arc advises.

The flier also lists a bunch of bullet points that outline some of the coalition’s objections.

“It’s unsustainable,” the flier states, claiming that under the new plan, there will be, “too many cars, too much traffic, too much air pollution.”

Under the new plan, there is also a seven percent reduction on the affordable housing set aside and a 17 percent reduction in overall affordable housing units, Arc notes. That’s another way of saying, “There is not enough affordable housing.”

And Arc claims the island will remain contaminated (see Bronstein’s rant about radionuclides and PCBs at the beginning of this post) even after the Navy completes its toxic and radiological cleanup. That the 40-story high-rise towers will obstruct views of San Francisco from the East Bay, and vice versa. And that the project financing plan will drive the city further into debt for at least another 15 years.

Arc’s flier concludes by asserting that the whole plan is undemocratic.
“Once approved, there will be no further environmental review of project plans—ever!” Arc claims. “Once approved the project will be implemented by an unelected nonprofit corporation. There has been no outreach or involvement of East Bay residents despite traffic and view impacts. The plan repays $55 million in additional developer costs to purchase this island with hundreds of millions of dollars of impacts on Bay Area residents.”

Now, I’m sure officials for the City and the developer will have plenty of counter arguments–and possibly busloads of low-income T.I. residents/unemployed SF workers, who will be shipped into the Board’s Chambers to argue that they need the Board to approve this plan so they can have new homes and jobs. Because that’s what happened last year, when Arc and the Sierra Club and Golden Gate Audubon expressed their concerns about plans to carve up the Candlestick State Park Recreation Area and build a bridge over the Yosemite Slough. And suddenly found themselves cast as the big bad villains, when it came to the city and Lennar’s wish to ram through the Candlestick/Shipyard plan.

But regardless of whether you believe in the project, oppose it, or don’t know much about it, make sure you show up at 5pm in Room 250 at City Hall on June 7, if you want to hear what actually goes down. Especially if you work in San Francisco, and live in the East Bay, because much of the Treasure Island traffic will directly impact the East Bay. 

Or as Arc puts it, “This new project is 25 percent larger than the prior one and like the difference between a 75 degree day and a 100 degree day – this increase in size makes all the difference. The new project will overdrive bridge capacity, create too much traffic, not enough transit, reduced levels of affordable housing, and vests enormous public power in an unaccountable, unelected development authority.  Please tell the Board they don’t have to go back to the drawing board – just to the 2006 plan and recirculate the EIR.”

Gov. Cuomo suspends S-Comm in New York State


More bad news for Immigration and Customs Enforcement (ICE)’s troubled Secure Communities program, which continues to draw fire for deporting thousands of folks with no criminal records since it was started under former President George W. Bush in 2008. Last month, Illinois said it was quitting the program, and today Gov. Andrew Cuomo issued a letter suspending S-Comm in NY state. 

In a June 1 letter to the Department of Homeland Security, Cuomo’s counsel Mylan Denerstein noted that since the commencement of Cuomo’s administration in January, “we have received numerous complaints and questions about the purpose and implementation of the Secure Communities Program to which the prior administration committed New York State.”

“The heart of concern is that the program, conceived of as a method of targeting those who pose the greatest threat to our communities, is in fact having the opposite effect and compromising public safety by deterring witnesses to crime and others from working with law enforcement,” Denerstein continued.
“Compounding these concerns, the Department of Homeland Security (DHS) Inspector General recently announced that he will investigate whether the program is meeting its stated goals, whether it is being applied equitably and whether prior representations to states, including New York, regarding the program’s purpose, intent and impact are accurate,” Denerstein wrote.

“Accordingly, until the numerous questions and controversies regarding the program can be resolved, we have determined that New York is best served by relying on existing tools to ensure the safety of its residents, especially given our overriding concerns that the current mechanism is actually undermining law enforcement,” Denerstein concluded. “As a result, we are suspending New York’s participation in the program.”

Last year, S-Comm was activated in 35 New York communities, but with Cuomo’s announcement all counties will be barred from sharing fingerprint data.

Awaiting consensus


Mayor Ed Lee’s pension reform proposal was unveiled May 24 with support from some of those who helped develop it, including investment banker Warren Hellman, Rebecca Rhine from the Municipal Executives Association, San Francisco Chamber of Commerce head Steve Falk, and San Francisco Labor Council Executive Director Tim Paulson.

The plan would dramatically alter the way the city manages employee retirement benefits, starting July 2012, while exempting employees who earn less than $50,000. Lee described it as “serious,” “comprehensive,” and a plan that “reflects consensus.”

Already the legislation to place it on the fall ballot has secured the cosponsorship of Board President David Chiu and Sup. John Avalos, rival candidates for mayor. Other mayoral candidates also offered their support, including former Sup. Bevan Dufty and City Attorney Dennis Herrera.

But there is one notable exception to the support for this plan, a party that has been at the negotiating table where it was crafted: Service Employees International Union Local 1021, which represents about half of the city’s 26,000 employees. The union claims the plan disproportionately affects 500 SEIU members, who are mostly women and people of color and already took large pay cuts last year to avoid layoffs.

Avalos, who described Lee’s proposal as “a sensible approach” and “the right way to go,” has said that if SEIU’s concerns aren’t adequately addressed, he’ll withdraw his sponsorship.

“I’d like to get to a consensus, but if we don’t and 10,000 union workers don’t sign on, I’m going to take my name off as a sponsor,” Avalos said. “We have to find ways to pay for pension benefits without decimating jobs and social services.”

Lee’s measure also didn’t win over Public Defender Jeff Adachi, who claims the proposal won’t make deep enough or fast enough cost savings in the next few years, so he will continue gathering signatures to place a rival measure on the ballot.

So rather than the consensus product Lee hoped the whole city family would be able to convince voters to support, it’s looking like pension reform could again be a divisive issue and one that spills over into this year’s mayor’s race.

Chiu thanked “our brothers and sisters from the labor community” when Lee announced his pension measure, noting that “each city worker that makes more than $50,000 would have to give thousands every year.” He supports the pension deal and hopes SEIU will eventually back it. Avalos and Sen. Leland Yee, another mayoral candidate, seem to be waiting for SEIU to sign on before offering their full support.

Mayoral spokesperson Christine Falvey told us that Lee views SEIU’s concerns as separate from the pension reform proposal. “He appreciates SEIU’s input in the pension reform talks and has committed to sitting down with them and trying to resolve this issue.”

Then there’s Adachi, who helped qualify Measure B, a 2010 pension reform proposal that united labor and city leaders in opposition. He continues to gather signatures to qualify a competing pension measure, needing about 50,000 signatures by early July unless Lee amends his plan to secure greater cost savings in less time.

“My focus is on this issue,” Adachi said, praising Lee’s efforts at achieving consensus. “But is this going to solve this problem so we don’t have to come back within two to three years? It comes down to a math problem.”

Adachi says Lee’s plan doesn’t adequately address the city’s need to save money now.

“The stress period is really in the next four years, so my hope is that the mayor’s proposal could be strengthened,” Adachi said, noting that his proposal yields $90 to $144 million in annual savings, compared to $60 to $90 million annually under Lee’s plan.

“SEIU is right that Mayor Lee’s proposal is inequitable,” Adachi added, noting that Measure B was criticized for being unfair to lower-income workers. “That’s why my new proposal increases pension contribution rates in $10,000 graduations. But under Lee’s plan, a person who earns $100,000 contributes the same rate as someone who makes $50,000.”

He criticized Lee’s plan for requesting only modest increases from safety workers. “Police and fire cost two to three times as much as everyone else’s retirement. They pay 17 percent of what’s in the fund and take out 36 percent. So that means SEIU folks are subsidizing the costs of safety workers’ retirement.”

Adachi acknowledged it would be better to have one measure everyone can support. “But I don’t agree that we should put ineffective reform on the ballot,” he said.

Adachi took a lead role on the issue in 2010 when he qualified Measure B mostly with backing from a few wealthy sponsors, including venture capitalist Michael Moritz, a financial supporter of Republican Ohio Gov. John Kasich and the Ohio Republican Party. Adachi took lots of political heat for the move, but he shrugs off the criticisms.

“It comes down to making sure people understand the issue,” he said. “A year ago, no one was acknowledging that it was a problem, but now everyone does. I’m hoping the board strengthens the proposal. It’s going to take supervisors really looking at this to see if works, not just jumping on the bandwagon.”

According to the Department of Human Resources, Lee’s plan would yield an estimated savings of $800 million to $1 billion over 10 years, with the bulk coming from increased employee retirement fund contributions of up to 6 percent for future and current employees. The proposal raises the retirement age from 62 to 65 for most city workers and from 55 to 58 for public safety workers. It also imposes caps on pensions for new employees.

Lee’s proposal must now make its way through the Rules Committee and win the approval of the full board by July 12, the deadline for supervisors to submit charter amendments. According to the Department of Human Resources, 89 percent of San Francisco’s 26,000 city workers earn more than $50,000. That means only 3,000 city workers fall below the $50,000 cut-off that exempt them from paying extra, under Lee’s plan.

But Larry Bradshaw, a bargaining unit member of SEIU 1021, said that members who make slightly more than that threshold will face pay cuts under the plan, on top of the pay cuts they took last year to avoid being laid off by Mayor Gavin Newsom.

For certified nursing assistants, the shift would amount to a roughly $12,000 annual pay cut, Bradshaw said. Security guards would face an estimated $5,000 per year cut, and clerical workers could face anywhere from $1,000 to $11,000 per year.

These workers faced getting fired and rehired at lower-paid classifications to make up for a revenue shortfall, but the union reached an agreement to stave off the worst pay cuts for those “de-skilled” employees by imposing a one percent across-the-board cut for all members in order to restore the salary cuts.

As SEIU workers take the pay cut to fund pensions, he said union members won’t be able to continue subsidizing the salaries of these deskilled workers.

“So we’re not going to have that option of asking our members to keep funding these workers who have taken this 20 percent pay cut,” he said. “And these are primarily women and people of color.”

But Sup. Sean Elsbernd and other supporters of the pension deal say the plight of these workers is an unrelated issue. “They aren’t a pension issue, so wouldn’t it be more appropriate to discuss them in the collective bargaining context?”

Elsbernd believes Lee’s measure is “fair and equitable,” partly because employees’ pension contributions would be reduced in boom years when tax revenue and stock market gains swell the city’s coffers.

“But Jeff Adachi is throwing a big roll of the legal dice,” Elsbernd said. He noted that city employees have long paid 7.5 percent toward their pensions. “But now, along come two pension reform plans that both challenge that notion.

“And every case in California shows you have to provide a commensurate benefit to change that kind of right,” he continued, arguing that Lee’s proposal is more legally sound because it lowers employees’ contributions during boom years. “So the $60 million that our plan would save is a hell of a lot more secure than the $90 million Jeff claims his plan would save.”

Sup. David Campos has yet to take a position on Lee’s plan, but hopes there is a way to address legitimate concerns about lower-income workers. “There’s no question that we have to do something about pension reform,” he said. “I don’t know if there’s a perfect proposal. But I’m especially intrigued by Mayor Lee’s plan. It recognizes that low-wage workers should not be expected to contribute at a higher rate than higher-wage workers. But we have to put the mayor’s proposal in the context of what else is happening, which is why SEIU’s de-skilling concerns are legitimate.” Campos credited Adachi for highlighting pension reform. “My hope is that we can come up with something that we can all be supportive of, where the mayor and Jeff’s proposals are combined. And while we have to be careful that the balance that has been constructed is maintained, this allows for a dialogue at the board, and for Jeff to be involved, so we can come up with a unified proposal. Because if we are going to address pension reform, we need to do so with a united front.”

FBI spying will be an issue for new Police Commissioner


When Police Chief Greg Suhr got sworn in at City Hall a month ago, reporters each got to ask one question during a hastily convened media roundtable inside Mayor Ed Lee’s office. And since the Guardian’s story about the FBI’s secret agreement with the San Francisco Police Department had just hit the streets, I asked the new Chief, if he would welcome clarification around the duties of SFPD officers assigned to the FBI’s Joint Terrorism Taskforce.

Chief Suhr said he believed an examination of the wording of the FBI’s most recent memorandum of understanding (MOU) with the department was already under way. “I believe that the MOU is being revisited,” Suhr said. “I have not been a part of that, but again I think we have a real good policy with regard to our intelligence gathering and that does supercede any ask of any other agency. The officers are bound by policies and procedures. And that policy was well thought out with tremendous community and group input years and years ago, from situations that have not since repeated themselves. I think a lot of people back then couldn’t believe they happened in the first place, but I think measures were well thought out and put in place to make sure we don’t have a problem again.”

Fast forward three weeks, and Suhr found himself in the hot seat at a May 18 joint meeting of the Human Rights Commission and the Police Commission, where commissioners got an update about the Police Department’s response to community concerns about surveillance, racial and religious profiling of Arab, Middle Eastern, Muslim, and South Asian Communities and the potential reactivation of SFPD Intelligence Gathering.

After Suhr introduced his new Command Staff—and stressed their great diversity–Police Commission President Thomas Mazzucco, who was Suhr’s football coach in high school, tried to assure folks that the Police Commission, the Human Rights Commission, the FBI, the SFPD, the American Civil Liberties Union and the Asian Law Caucus had already addressed the community’s intelligence-gathering concerns, in part through a bureau order that Chief Suhr then introduced during the hearing, in which Suhr clarified that SFPD policies trump FBI guidelines every time.

And Mazzucco,  a former Assistant U.S. Attorney for the Northern District of California and a former Assistant District Attorney for San Francisco, before Mayor Gavin Newsom appointed him to the Commission in 2008, noted that the community’s concerns were based on allegations. not factual findings.

But his comments got folks wondering whether Mazzucco’s prior involvement with the feds left him with a blind spot that is preventing the Police Commission from dealing with the issue in a timely and effective manner, particularly since Commissioner Jim Hammer’s term has expired, and the rest of the Commission is waiting for the Board’s Rules Committee to decide between nominating David Waggoner, L. Julius Turman, Phillip Hogan or Vanessa Jackson as the next new Police Commissioner.

For, as members of the public observed during the meeting, if the Police Commission President himself expresses no outrage at finding that the Commission’s policies have been undercut for the past four years by secret agreements between SFPD and the FBI, how can San Francisco claim to have a credible system of civilian oversight?

Instead, they felt that Mazzucco seemed more concerned about defending federal practices and officials, who were unwilling to show up at the May 18 hearing, than worrying about the role and authority of the civilian oversight body he now represents. And attorneys with the ACLU and the Asian Law Caucus noted that though Suhr characterized his new order as being based on the Portland resolution and a prior proposal from community advocates, they believe Suhr’s approach can only work with the written consent of the FBI, (which SFPD doesn’t have) if the FBI’s 2007 contract is left in place.

“That’s why there is a need for a transition to a non-MOU, Portland-style resolution,” ACLU’s John Crew told the Guardian, noting that ACLU’s willingness to work collaboratively with the commissioners and the new Chief should not be confused with a willingness on ACLU’s part to roll over and accept an approach that is based on wishful thinking rather than the realities of the MOU that’s still in place.

During the May 18 joint hearing, Chief Suhr acknowledged “the validity of the perceptions raised by the community,” even as he insisted that SFPD has “very strict policies” in place to ensure appropriate oversight for investigation- involving activities.

Suhr summarized the history of those policies, including ACLU’s John Crew’s involvement in creating Department General Order (DGO) 8.10, which establishes that there must be reasonable suspicion before SFPD intelligence gathering can occur.

Suhr noted that SFPD joined FBI’s Joint Terrorism Taskforce (JTTF) after the September 11, 2001 attacks, and SFPD officers assigned to the JTTF subsequently came under control of the Department of Homeland Security unit, but starting now, they are back under SFPD’s special investigations.

“I gave the order today that JTTF will be moved back under SFPD’s special investigation unit,” Suhr said. “They will have the security clearance necessary to oversee the activities. The members are required to comply with all department policies, even if they can conflict with FBI policies. Simply said, San Francisco policies, procedures, laws, and statute trump any federal policy or procedure. Our officers are bound by those.”

Suhr said that to ensure everyone is clear about the chain of command, he’d drafted his May 18 bureau order. “It essentially turns back the clock and emphasizes that officers are responsible for our policies and procedures first, and our officers are bound to identify themselves as San Francisco police officers,” Suhr said, further noting that he’d be happy to further amend his new order as needed.

And Mazzucco noted that SFPD has absolutely no jurisdiction whatsoever over the Transportation Security Administration’s activities at the airport.

But while Human Rights Commission Chair Michael Sweet said Suhr’s new bureau order,  “goes a long way toward helping to alleviate some of the concerns,” he and many commissioners noted that this was their first chance to read the order. And Sweet said he saw the May 18 joint hearing “as by no means the end of the discussion.”

HRC director Theresa Sparks, who was on the Police Commission when the FBI drafted its 2007 JTTF MOU, noted that the issue is not whether we should opt out, but what we can do to ensure that officers involved in activities have “strong civilian oversight of their activities and report activities through the established civilian oversight mechanisms and procedures defined in DGO 8.10.”

” Our approach to achieve this objective is to publish internal directives ensuring our officers only participate in activities that meet our local standards of reasonable suspicion,” Sparks stated, claiming that Suhr’s order will “ give the city control over misconduct charges and allegations of misconduct charges.”

Sparks noted that the May 18 hearing was a status report about “alleged violations by the FBI and SFPD, as well as airport police,” and that the HRC “did no independent investigation” to verify these allegations.

Sparks added that HRC and the Immigrant Rights Commission has a tentative agreement to move forward with townhall meetings to address community concerns, and will encourage the Board to appoint a special prosecutor to determine if the prosecution of terrorism cases is valid and fair, and discuss the need for an Ombudsman at the airport. And she talked about the need for SFPD to establish legal safeguards, mechanisms for greater transparency and oversight, and conduct more detailed yearly audits.

“Tonight was a real dialogue about the issues,” Sparks said, further noting that civilian oversight of local JTTFs is also a popular discussion in Oakland and in Portland, Oregon, which has decided to rejoin its local JTTF after opting out in March 2005. But she didn’t mention that Portland had entered into a resolution with the FBI, instead of signing a new MOU with the feds.

That explanation was left to Veena Dubal of the Asian Law Caucus and ACLU’s Crew– in between explaining why they believe Suhr’s Bureau Order isn’t enough. “The good news is that we all collectively agree that SFPD policies should apply to SFPD officers assigned to the JTTF,” Dubal said. “The bad news is that the recently released MOU, which was secret for four years, doesn’t reflect our collective desires.”

Dubal stated that the FBI won’t amend its 2007 MOU with the SFPD.
“And that is why the Chief issued the bureau order,” Dubal stated, claiming that the FBI Special Agent in Charge of JTTF involvement recently told ALC and the ACLU that the FBI will continue to block key parts of local policy central to accountability and oversight.

“But there’s a solution and it doesn’t necessitate a divorce from the joint terrorism task force,” Dubal continued, noting that there are now two ways for local law enforcement officers to participate in JTTFs: an MOU, in which SFPD resources are put into the hands of FBI with relatively no local control, as in the SFPD’s 2007 agreement with the FBI. Or via a resolution which the federal government just approved in Portland, which allows participation in the JTTF, but provides much better protection for civil rights and gives the police department and the police commission more control of the relationship.

Dubal noted that in the decade since 9/11, the FBI has expanded its intelligence powers, and its agents are now allowed to conduct intelligence without a factual connection to criminal activity.

“Given these massive shifts in FBI activity, the question is, what should the relationship between the SFPD and the FBI look like?” Dubal said.

“Unlike the FBI, the SFPD is not a national security organization, “ Dubal continued, noting that when SFPD signed up to work with the JTTF under an MOU that preserved local control and policies, “it wasn’t assuming that some of its officers, paid for by San Francisco taxpayers, could be transformed into national security agents.”

”The SFPD signed on without telling anyone, not even the police commission,” Dubal said, noting that SFPD cannot afford to participate in these practices. “We need community trust to keep all of our communities safe.”

ACLU’s Crew noted that the FBI came to the SFPD in 2007 with a new MOU. “And perhaps inadvertently, there was no review by the City Attorney, and no notice to the police commission,” Crew said. “And it’s a drastically different MOU, unfortunately.”

“Now, we didn’t know about that MOU because it was kept secret at the insistence of the FBI for four years,” Crew continued, further noting that when ACLU and ALC met with the SFPD in 2010, they were suddenly told that the police department couldn’t talk about these issues without FBI permission.

“That set off a warning sign,” Crew observed, noting that in early April, when the ACLU and ALC finally got the MOU released, their worst suspicions were confirmed.

“There was no public discussion of transforming the SFPD into a national intelligence gathering association,” Dubal said. “The problem is that the FBI changed the deal, and the SFPD signed it, without telling anyone.”

Dubal noted stark differences between the FBI’s 2002 MOU and the one the SFPD signed in 2007, along with stark changes to FBI guidelines that occurred in 2008, in the dying days of the Bush administration, and that now allow a new assessment category, that does not require reasonable suspicion and has been criticized by civil liberties groups.

And according to Crew, the FBI’s new MOU “puts at risk the very concept of civilian control.” As Crew noted, between the mid 1990s, when the SFPD developed DGO 8.10, which governs its officers’ intelligence-gathering policies and procedures, and 2007, when the FBI prepared a new JTTF MOU, there’d been little controversy over intelligence-gathering in San Francisco.

 “And then, perhaps inadvertently, the SFPD signed that MOU and it was drastically different and kept secret at the insistence of the FBI for four years,” Crew observed.

And in 2010, the SFPD suddenly said it couldn’t talk about the issue without the permission of the FBI, Crew added, noting that “Unnecessary secrecy breeds suspicion.”

“We don’t think the Bureau Order is sufficient,” Crew concluded. “This is an issue that has to be dealt with at the Police Commission level.”

Crew noted that the Portland City Council chose not to enter into an MOU, “specifically because it restricts the ability to provide local control and local oversight. “

“So, we are not saying opt out, but we are saying there needs to be a transition to a resolution that maintains local control over the assignment of officers and provides all these elements of civilian oversight,” Crew continued.

He claimed that the federal government says a resolution is possible, as long as you’re not doing it under an MOU.
“So the question is, if that level of protection is available now to the people in Oregon, why would San Francisco not take the same deal?” Crew said. “All you have to do is give 60 days’ notice to the FBI that are you going to start this transition to a resolution. That notice period allows the FBI to have any comments or express any concerns they want, I think it’s very regrettable that they chose not to participate tonight and unfortunately I think it says something in terms of how seriously they take these concerns.”

Crew concluded that such a transition would be a win-win situation.

”If we went to a resolution that merely asserted local policy, then they could keep doing exactly what they’re doing now,” Crew said. “On the other hand, if it turns out that there’s activities SFPD is involved in that they shouldn’t be involved in, don’t we want those stopped?

“The one comment I will make of the bureau of general order is that I’m thankful to hear it’s a work in progress,” Crew added, noting that ACLU and ALC “don’t think a bureau order is sufficient. That’s because it can be changed at any time without the notice of the police commission, without a public hearing.”

But Mazzucco disagrees with ACLU and ALC’s claims that FBI intelligence-gathering guidelines have been relaxed since 2008.
 “There are no random assessments, and there has to be a predicate of a criminal violation,” Mazzucco told commissioners, noting that ” with honorable people like Bob Mueller” (Mazzucco’s former boss) “running the FBI, there should be a level of confidence that there will not be any violations.

And in a follow-up call, Mazzucco told the Guardian that he thought Suhr’s bureau order clarifies that “local officers follow SFPD rules.”

Mazzucco also suggested that Police Commission oversight, “is more over policy and procedures and less about operations,” by way of explaining how the SFPD’s 2007 MOU  with the FBI never came before the Commission.
“But I suggested that we see the next MOU in this area,” Mazzucco added.

And he proposed “a simple solution” moving forward, namely transparency and educating the public,” about the JTTF.

“SFPD is probably the most diverse police department in the country,” Mazzucco said. “And there is civilian oversight. We won’t let anything untoward happen.”

And he praised the new US Attorney for Northern California Melinda Haag, and FBI Special Agent Stephanie Douglas for their participation in recent meetings with city officials about the community’s intelligence-gathering concerns.
“The good news is that nothing controversial is going on here,” he said, noting that out of the broad array of community advocates who showed up at the May 18 joint hearing, there were maybe five citizens who spoke about encounters with the FBI, and only one from the Bay Area. ”My goal is to make everyone feel comfortable,” he said.
But HRC Chair Sweet acknowledged at the May 18 joint hearing that it was “very difficult” to know from a first reading of Suhr’s Bureau Order if it fully addressed the community’s intelligence-gathering concerns. “I think a great deal of discussion really needs to take place on that particular issue,” he said.

And HRC Vice Chair Douglas Chan dug into the details, starting with the apparently now classified question of how many SFPD officers are currently assigned as deputized FBI officers.
”We don’t generally discuss the specific numbers, but I will tell that you we’ve never had less than two officers assigned to the JTTF,” Suhr replied.

And he told Chan more work can be done on the Bureau Order. 
“The intent of the order was to align it with DGO 8.10 and to close any gap that was in the 2007 MOU,” Suhr said.

Chan asked if SFPD has in mind “ a framework or an approach” if a case arises, wherein an officer, in order to defend himself against an allegation of misconduct, or a citizen seeking to discover facts and other evidence relating to an incident, bumps up against this need to know and the fact that apparently JTTF activities are, “under a federal classified information.”

“I think that would probably need to be flushed out in subsequent drafts of the bureau order,” Suhr replied. “I think we could turn the clock back to where the officers are ultimately accountable to the police department, the commission and the citizens of San Francisco.  I think that the most recent MOU, as has been discussed, there was somehow a mishap where it was not reviewed.”

 And while Police Commissioner Petra DeJesus said Suhr’s Bureau Order was, “a step in the right direction,” she added that she felt it needs to be amended to clarify how the Police Commission would truly have oversight of SFPD officers’ JTTF activities.
‘Even though a commissioner is going to look at what’s been done monthly, that commissioner doesn’t have the clearance, and we’d only see a sanitized version of the events,” she observed. “And we need to look at the auditing report part of it.”
 And Police Commissioner R. James Slaughter said he thought everyone was “frustrated that the FBI is not here to answer some of these questions.” I think that would help us.”

And now, with four candidates vying to replace Jim Marshall as the seventh Police Commissioner, it’s not clear what the Police Commission will do beyond Suhr’s Bureau Order. But clearly that question now becomes part of the commission selection process.

And so here is the basic direction of Suhr’s new Bureau Order:

Under Suhr’s new Bureau Order (not to be confused with an FBI order) SFPD officers assigned to the FBI’s terrorism task force must abide by local policies protecting civil rights rather than looser federal rules.

 “It is the responsibility of the Federal Bureau of Investigations (FBI) to prevent, investigate and respond to terrorism in the United States.” Suhr’s May 18 order states. “The FBI has established local Joint Terrorism Task Forces (JTTF) to share resources and coordinate among federal, state, tribal and local governments. It is the policy of the [San Francisco Police] Department to help prevent and investigate acts of terrorism, protect civil rights and civil libertes under United States and California law, and promote San Francisco as an open and inclusive community by participating in the FBI Joint Terrorism Task Force.”

“The Chief may assign SFPD offices to work on JTTF investigations that comply with the requirements stated above regardless of whether or not the investigation is based in the City & County of San Francisco,” Suhr’s order, which was issued by Deputy Chief Kevin Cashman, continued.

 “SFPD offices shall work with the JTTF only on investigations of suspected terrorism that have a criminal nexus,” Suhr’s Bureau Order concludes. “In situations where the statutory law of California is more restrictive of law enforcement than comparable federal law, the investigative methods employed by SFPD officers working on JTTF investigations shall conform to the requirements of such California statutes. While cross-designated and deputized as federal officers for the purposes of their JTTF assignments, when not operating in a covert or undercover capacity, SFPD officers shall always identify themselves to members of the public as SFPD officers.”

Or as Suhr told commissioners May 18, “Our officers will follow our department orders.”


Ammiano’s TRUST Act passes the Assembly


Tom Ammiano’s TRUST Act (AB 1081) passed the California Assembly in a 47-26 vote. It now heads to the Senate for approval. Ammiano says his bill “seeks to repair the damaging impacts of the Immigration Customs Enforcement (ICE) Agency’s “Secure” Communities program.”  The feds’ Secure-Communities program, in which fingerprints taken in local jails are automatically shared with immigration enforcement officials, has increasingly been accused of undermining public safety without transparency or local oversight. Today’s vote came a year after San Francisco Sheriff Mike Hennessey blew the whistle on ICE’s plan to silently activate S-Comm in San Francisco. And it followed on the heels of a series of damaging revelations about how S-Comm has mostly resulted in the deportation of non-violent immigrants, and has led to complaints that local municipalities received confusing information about their participation options.

Following a request from Congressmember Zoe Lofgren and Sen. Robert Menendez, the Department of Homeland Security (DHS) Office of the Inspector General recently announced it will investigate questions about S-Comm’s success in meeting its stated criminal targets, and look into charges that misinformation was provided to states and localities about their ability to opt out. Earlier this month, llinois Gov. Pat Quinn tried to cancel his state’s participation in the program and the Congressional Hispanic Committee asked Obama to put a moratorium on the program.  

 “S-Comm is a farce,” Assemblymember Ammiano charged. “ICE misled local jurisdictions from the beginning and blurred the lines between law enforcement and immigration, striking unnecessary fear into innocent people’s lives. The TRUST Act is a practical solution that will re-build trust with our immigrant communities and by doing so will restore some balance to this dysfunctional and unjust program.”


Fatal stance


Ever since Mayor Gavin Newsom appointed Police Chief George Gascón district attorney in January — when Gascón said he was “not categorically opposed to the death penalty and would consider it in appropriate cases” — capital punishment has become a big issue in a town where the last death penalty case was in 1989.

Gascón is running against former San Francisco Police Commissioner David Onek, who is the founding director of the Berkeley Center for Criminal Justice and has consistently promised since entering the race last summer that he will not seek the death penalty.

Both men also face a serious challenge from Alameda County Deputy D.A. Sharmin Bock, who opposes capital punishment but won’t categorically state that she would never seek it, as former DAs Kamala Harris and Terence Hallinan both did while running for office.

Bock said that Harris eventually formed a committee to review each capital case but never filed for the death penalty, including in the 2004 murder of San Francisco police officer Isaac Espinoza, the same approach Bock would take. But she doesn’t think it’s legally wise to make a categorical statement opposing the death penalty, saying it could be challenged in court, as some attorneys tried to do with Harris.

“But capital punishment is unjust, and can say that categorically,” she said.

In the week since Bock’s May 17 campaign launch, Gascón challenged her credibility on the issue by noting that Bock used the threat of the death penalty to secure a guilty plea from a sexual predator who tortured and killed women in Alameda County last year.

But Bock used that case to draw a distinction in their positions on the issue, telling us, “George Gascón says he’d use it for the most heinous cases, and I’ve seen the most heinous cases and I haven’t use it,” Bock said, emphasizing that she’s the only prosecutor in the race.

In a May 1 Chronicle op-ed, Gascón tried to neutralize Onek and those opposed to the death penalty by noting that he also has “serious misgivings” about capital punishment, including the potential for wrongful convictions, the disproportionate application on racial minorities, the roller-coaster the victims’ families endure as they wait decades for closure, and the financial impact on an already overburdened justice system.

But Gascón also tried to hide behind the “death penalty is state law” defense, even though prosecutors have extensive discretion in such matters. “Rather than refuse to enforce our laws, I believe the more appropriate approach is to accept the law and work to change it,” Gascón wrote. “I don’t believe district attorneys should be allowed to supplant the views of the state with those of their own.”

Bock criticized Gascón’s deferential stance, which was in sharp contrast to Sheriff Mike Hennessey, who recently announced that he will stop cooperating with federal immigration officials and start releasing undocumented immigrants jailed for minor offenses before they can be picked up for deportation, to comply with San Francisco’s sanctuary ordinance.

Gascón appeared to be trying to cast his position as a courageous stand. “Some have given me the political advice to simply say I will not seek the death penalty in San Francisco,” he wrote. “While I am not prepared to say that at this time, I can say that I do intend to be a district attorney committed to San Francisco values.”

And he promised that if he believes a case merits the death penalty, he would seek the advice and counsel of a panel of local prosecutors. “Ultimately, the decision will always rest on my shoulders, and it is a decision that I will not take lightly,” Gascón wrote.

But Onek accused Gascón of giving a politician’s answer. “Gascón is trying to have it both ways,” Onek told the Guardian. “The voters have the right to hear a clear answer to a fundamental question. And my answer is clear — I will not seek the death penalty in San Francisco and I will continue to work to change the law statewide. To me, it’s a yes or no question, and I won’t seek it. Period.”

Onek says his stance is informed by his belief that the death penalty solves nothing. “It doesn’t make us safer; it’s not fair and equitable; and it wastes enormous resources,” he said. “We are much better off spending our precious resources on things that actually make us safer, like more cops on the streets, more programs in our communities, and better services for victims.”

Gov. Jerry Brown made a similar comparison last month when he canceled a $356 million project for a new death row at San Quentin. “At a time when children, the disabled, and seniors face painful cuts to essential programs, the state of California cannot justify a massive expenditure of public dollars for the worst criminals in our state,” Brown said.

A recent David Binder research poll found 63 percent support statewide for commuting all of the 700 sentences of California’s death row inmates to life in prison without parole and requiring them to pay restitution to the victims’ families, while 70 percent of Bay Area voters support the plan, which would save the state $1 billion over five years.

At a May 18 panel discussion on the death penalty, Public Defender Jeff Adachi’s criminal justice summit offered panel moderator Matt Gonzalez, a chief attorney in Adachi’s office, a timely opportunity to grill Gascón about his death penalty stance.

“Folks felt it might be a step backward,” Gonzalez said, noting that former D.A. Terence Hallinan pledged not to seek the death penalty when he ran for reelection in 2000, and Harris followed suit when she first ran for district attorney in 2003. “So — are you pro death?” Gonzalez asked.

“No, but I am a public official,” Gascón replied, even as he repeated his misgivings about the death penalty, including the fact that 62 percent of those on death row are minority populations, especially from African American and Latino communities.

The panel also provided a chance to see Gascón debate exonerated death row inmate JT Thompson, watch American Civil Liberties Union of Northern California attorney Natasha Minsker explain why the death penalty system is dysfunctional, and witness former San Quentin prison warden Jeanne Woodford describe how the impacts of the four executions that she reluctantly oversaw motivated her to sign on as director of Death Penalty Focus, a nonprofit dedicated to abolishing capital punishment.

“Who is responsible for the prosecutors that go bad?” asked Thompson, an African American man who spent 14 years on death row in Louisiana, and another four facing life without parole, because a prosecutor suppressed exculpatory evidence.

“When I was sentenced to death in 1985, for a crime I didn’t commit, I thought this would be rectified right away. But it took 18 years, and I watched 12 inmates being executed while I was there,” Thompson said, noting that he was holed up 23 hours a day.

Gascón said he would terminate prosecutors who withheld exculpatory evidence, but said he didn’t know if he could charge them with murder.

Thompson, founder of the New Orleans-based nonprofit Resurrection after Exoneration, argued that the debate needs to be recast from its current public safety frame.

“People need to be asked, ‘Under what conditions do you support giving the state the right to kill you?’ ” Thompson said.

Woodford recalled how she got sick after the last execution she presided over. “I focused on what my responsibility was. But in hindsight, I realize it had had much more of an impact,” she said. “These executions happen in California at least 20 years after the crime. And they don’t bring victims back.”

Minsker noted that 16 states do not have the death penalty, and that every day brings people closer to ending the practice in California. “People once thought opposing the death penalty would end political careers, but Kamala Harris showed that it is no longer a liability,” she said.

Reached by phone after the debate, Onek said ending capital punishment makes sense morally and financially. “We would have $1 billion to invest in things that actually make us safer,” Onek said. “The D.A. is given discretion around requesting the death penalty, and I will use my discretion to reflect San Francisco values. That’s why people in the trenches working on these issues, including Jeanne Woodford, support me in this race.” 


Perception of lost integrity costs police


Reporting by Sarah Phelan. Photograhy by Luke Thomas.

At the San Francisco Public Defender’s Office’s May 18 Justice Summit, the ethics of law enforcement were a central topic. And not surprisingly, the latest incidents of alleged police conduct in which SFPD officers are caught on surveillance video, which the Public Defender’s Office released, as they apparently steal personal property from suspects whose homes in the Julian Hotel they searched for drugs under possibly illegal circumstances, were on everyone’s minds, along with the crime lab and Henry Hotel scandals.

Asked if District Attorney George Gascón, who was Chief of Police until January, is considering a special prosecutor to look into these latest incidents, Sharon Woo, the D.A.’s Chief Assistant of Operations, said the D.A. looks into each case as it comes in. “We are trying to enhance the videos that came in from the Public Defender’s Office,” Woo said in a pre-summit interview. “Some are not as clear as we’d like.”

Earlier this year, when Gascón first became aware of the allegations against officers at the Henry Hotel, he directed the D.A.’s office to open an investigation into the officers and their alleged conduct. The move got David Onek, who is running against Gascón in the D.A.’s race, urging Gascón to turn the investigation over to an independent prosecutor.

But for a week, Gascón maintained that there was no conflict, and when he did finally announce that he was turning the investigation over to the to the U.S. Attorney’s Office – he claimed it was about “resources”. “New information has come to light that indicates it is better to turn over this investigation to the FBI,” Gascón said. “I have spoken to the U.S. Attorney, Melinda Haag, and she has agreed to take over the full investigation. We will of course cooperate fully with the FBI, and provide whatever assistance they need from us.”

At the time, Onek noted that Gascón’s decision was correct step. But he criticized Gascón for not making it his policy to recuse himself from any investigations that relate to his own tenure as chief. And Alameda Assistant D.A. Sharmin Bock, who recently sprung into the D.A.’ race, described Gascón’s situation on this matter as being “between a rock and a hard place.”

But yesterday, Woo noted that while it’s true that Gascón was SFPD Chief when many of the recent misconduct scandals occurred, Mayor Gavin Newsom had already appointed him D.A. when the Julian Hotel incidents occurred in February.

And Peter Herley, former chief of the Tiburon Police Department, told the Guardian that there “is always the Attorney General” to refer cases if D.A.’s feel conflicted. “George Gascón is a very upstanding individual who has also worked for the Los Angeles Police Department and was Chief of Meza, Arizona, and has done a good job in every place he’s been,” Herley said during a pre-summit interview. “So, if he sees a conflict arise, he’d probably recuse himself. It’s the public perception that’s key, that’s paramount.”

During the summit’s panel on ethics, retired San Francisco Superior Court judge Lee Baxter grilled panelists with incisive questions—as befits any self-respecting judge, retired or otherwise–on whether police misconduct is the product of a departmental culture. Noting that there had been a seemingly non-stop string of alleged police misconduct scandals in the Bay Area from drug thefts, dirty D.U.I cases, stolen drugs and setting up a brothel, Baxter observed, “If I saw a movie that included all those things, I’d think that this is not realistic.”

And there was a perhaps surprising amount of stated consensus about what needs to happen next from panelists Woo, Herley, defense attorney Stuart Hanlon, newly sworn-in SFPD Chief Greg Suhr, Anne Irwin, an attorney at the Public Defender’s Office, and John Burris, an Oakland-based civil rights attorney who is renowned for representing plaintiffs in police brutality cases.

Baxter asked the panelists why abuse of power happens, and whether, when we see media accounts of alleged police misconduct, we see the most extreme cases.

Hanlon kicked off by referring to the case of Elmer “Geronimo” Pratt, a former high ranking member of the Black Panther Party, who was tried and convicted of the kidnap and murder of Caroline Olsen in 1972, and spent 27 years in prison, eight in solitary confinement, until 1997 when his conviction was vacated on the grounds that the prosecution concealed evidence that might have exonerated him. In particular, the government had not disclosed that a key witness against Pratt, Julius Butler, was an informant for both the FBI and the LAPD. Pratt eventually received $4.5 million as settlement for false imprisonment—the city of L.A. paid $2.75 million, the U.S. Department of Justice paid $1.75 million.

“We learned that law enforcement officers had hidden evidence, let people commit perjury, and destroyed evidence to convict someone who was innocent, “ Hanlon recalled, noting how when he first worked on the case, folks wondered if Pratt’s claim of innocence was simply part of a big conspiracy theory. “But it was not, it was men and women who thought the ends justified the means” Hanlon said, noting that the “bad apples” theory is typically trotted out during investigations into alleged police misconduct. “But officers see people who they think are bad people, and they feel they must whatever it takes,” Hanlon continued. “Primarily, most law enforcement people are good, but sometimes you get good cops lying to protect bad cops. It’s a dilemma, this concept of ‘what we do we need to do, this ‘us versus them’ concept.”

Hanlon claimed that officers don’t think citizens who live in SROs (single room occupancy hotels) have the same rights as folks in Pacific Heights.
“They think it’s OK to break down doors because these are drug dealers,” he said. And he noted that the recent string of back-to-back scandals are unusual in their proximity but are not unusual, generally speaking. “I’m not an apologist for (Chief) Suhr or the D.A., but I’ve seen these problems forever, and without trust law enforcement doesn’t work,” Hanlon concluded.

Next, Baxter put Suhr in the hot seat by asking him what to do about the “ends justify the means concept”. At which point Suhr, who has been Chief for less than two weeks, observed that the summit, which was packed to the gills with defense and civil rights attorneys, was “a bit of an away game for me, but it’s O.K., I can handle it.” He noted that only 1 in 11 applicants make it through the SFPD Police Academy, where folks undergo 1,100 hours of training, including sessions on abuse of power and responsibilities. “But if something is proven, it’s my intention not to have those officers in the SFPD any more,” Suhr said.

Retired Tiburon Chief Pete Herley revealed that during his decades-long police career, he blew the whistle when three officers nearly beat a gay man to death. “I suffered the consequences for many years,” he said. “It’s very lonely getting death threats, it’s very lonely when you don’t get the backing of fellow officers.”

Herley claimed times have changed a lot. “Change starts in the Academy and the selection of officers, and you have no other law enforcement officers that get more scrutiny, background checks m psychological checks and an 18-month probation period,” he said.

He noted that police chiefs inherit a departmental culture, whether they come into the post from the inside or the outside of the department. And that while the number of officers involved in misconduct is small, “it makes good press.” 

“I really feel one needs to be more loyal to integrity than to people,” Herley continued, noting that his parents were Holocaust survivors, and that his father was aghast when he decided to become a police officer. “But I had certain values and I don’t expect anything less from other people. I expect that every department has something in their rules and regulations that directs their officers that if they see misconduct, it’ll be stopped and the action will be reported immediately to the Chief.

Baxter asked Woo what the D.A. should do, if there is a problem.“All we are is our integrity, our ability to communicate and put forth evidence to juries “ Woo observed, noting that she has been on the frontlines as allegations about the crime lab, the Henri Hotel, and now potential theft, surfaced. “We find ourselves very reactive,” Woo observed, noting that if officers are not being truthful, the D.A.’s office has to look at all the cases they were involved in. “So it really impacts public safety and how all of us view the criminal justice system,” Woo said, noting that officers involved in the Henri Hotel allegations taken off the street.“But we have no interest in prosecuting individuals if it’s not based on solid evidence,” Woo said.

She recommended proactive steps like getting involved in Police Academy training on the law, and what officers can and cannot do, and giving officers tools to make good decisions and arrests, so there is integrity in the system. “If there isn’t, we all lose, not just the criminal justice system, but the entire community,” Woo observed, noting that as SFPD Chief, “Gascón instituted lots of policies to make sure people are doing an appropriate level of review.”

Baxter asked Anne Irwin, an attorney in the Public Defender’s Office, about their office’s role in bringing abuse of power to the attention of the public. “The Public Defender has a unique and natural role as a messenger,” Irwin replied. “We have more meaningful interaction with the victims of police misconduct than anyone else in the criminal justice system. We get into the intimate details of their lives, we develop a relationship of trust, so they confide their stories about police misconduct. And those stories are commonplace.”

Irwin noted that these stories include a disrespect for the Fourth Amendment, perjury and theft. “When you hear those stories over and over, there’s a ring of truth, a consistency,” Irwin said, noting that this is not the first time officers have been captured on camera. “We didn’t say, let’s amass a bunch of evidence. We just basically did our job. Residents told us what someone said in a report is not what happened, so we got videos from Dec. 23 and Jan. 5, and lo and behold, every word was true, two for two.”

Irwin noted that there are many good officers in the SFPD, but questioned whether a culture develops in certain departments, including the plain-clothes units, that allows misconduct to happen. “Without the videos officers would not have had to answer for their conduct,” she observed.

Baxter asked Suhr what it is about the culture that makes some cops go rogue. “Did they work there too long, were the temptations too much?” she asked.

Suhr replied that he worked in narcotics for a long time, and recovered $1.4 million in cash from an apartment in the Western Addition. “I never took a dime, and I am confident that the officers I worked with were of the highest caliber,” he said. “To paint a 2,000-person organization with a broad brush is unfair,” he added. “In the legal profession, every once in a while, you see ugly stories there too.”

Burris, who filed a $25 million wrongful death claim against BART on behalf of Oscar Grant’s family, noted that he has been involved in about 1,000 police misconduct cases in the Bay Area. “A culture exists about how you treat minority communities, “ he said, noting that he had represented black and brown clients for over 20 years. “A culture where you beat people and nothing is done, and you get away with it.”

Burris believes the problem lies in how policies are imposed, as he claimed that when officers join departments they are told to forget what they were taught in the Academy.“This is what you do on the streets,” he said.

Baxter observed that she has seen movies about the code of silence and wondered if it actually exists in police departments. “I don’t think so generally,” Suhr said. “There’s peer pressure to be sure. A regular citizen has a right not to self incriminate, and in the Police Department you can say that, but you are immediately sent to Internal Affairs, where you are told, tell me what happened or you are fired. So, today, the light is shining on us 100 percent of the time.”

Herley noted that his concern lay with situations in which officers see something, but don’t say anything. “I never thought I’d sit here and agree with every word John Burris says, but it starts at the top, and has to be enforced throughout the organization.”

Herley said the two best tools to prevent indiscretions and ensure responsibility are tape recorders and video cameras. “There’s certification of exactly what happened.” As for questions of how much it would cost to outfit officers with this recording equipment, Herley said, “ What is the cost of a lawsuit, the cost the perception of a loss of integrity to a department?”

Finally, a prosecutor leaps into D.A.’s race


From the moment I walked into Sharman Bock’s District Attorney campaign launch and saw the roomful of “signs proclaiming, “A prosecutor for District Attorney”, I realized that Bock isn’t the type of candidate to hold her punches. And that makes perfect sense, because unlike the other candidates in the D.A.’s race, Bock, 48,  is a seasoned prosecutor.

Bock, as I soon found out, is also a longtime San Francisco resident, who moved here from Iran when she was four and has lived in the city for more than four decades. She went to high school here, returned after graduating cum laude from Georgetown University Law Center, and earned a clerkship with the Hon. D. Lowell Jensen of the Northern District of California, before starting her prosecutorial career in Alameda County, where she has served as an Assistant D.A. since 1989.  And she continues to live in San Francisco, where she is currently raising two kids with her husband in the Richmond District.

Joined by Congressmember Jackie Speier, Lulu Flores, President of the National Women’s Political Caucus, and Shronda Wallace, whose mother was brutally murdered in 1989, Bock made no bones about why she has decided to spring into the race.

“I’m running for San Francisco District Attorney because this is a job that requires a seasoned prosecutor who knows what it takes to put the most violent and dangerous criminals behind bars and keep them there,” Bock said. “I am a professional prosecutor. I want to give voters a real choice. No other candidate in this race has prosecuted even a single criminal case. This is no job for rookies. The stakes are too high and rookies make mistakes.”

When Bock noted that her conviction rate is over 90 percent, and that she has never lost a serious or violent jury trial, I wondered how successful the other main contenders–former SFPD Chief George Gascón, who Mayor Gavin Newsom appointed as D.A. in January, and former San Francisco Police Commissioner David Onek, are going to be when it comes to downplaying the fact that neither, as Bock wasn’t afraid to remind reporters, “has ever prosecuted a criminal case.”

“This is not a managerial, police or career job,” Bock continued, confronting head-on the arguments Gascón and Onek have already tossed out in response to questions about how they can be D.A. given their complete lack of prosecutorial experience.

“It’s certainly not a job for a rookie, and with 22 years of experience, I’m ready,” Bock commented.

“To lead an office of trial lawyers, you’d have to walk a mile in their shoes,” Bock added, noting that currently she is doing just that. “I’m responsible for supervising extremely experienced trial lawyers each day,” she said, referring to her job as Assistant D.A. in Alameda County.

Praising the record of former D.A. Kamala Harris, who was elected Attorney General in November, Bock observed that San Francisco “sets the national standard. Kamala did a good job, and I’d like to keep the momentum going. We can’t lose it.”

Next, Bock outlined some of the highlights of her prosecutorial career.

A national expert on efforts to combat human trafficking, Bock leads the Human Exploitation and Trafficking (HEAT) Unit, which prosecutes complex trafficking cases. In fact, Bock actually prosecuted the first human trafficking case in California.

Based on her expertise with DNA and other forensic evidence, Bock was tapped to lead the Cold Case Unit, which focuses on solving old murder and sexual assault cases.

Bock also oversees other specialized felony units, including Public Integrity, Child Sexual Assault, Sexually Violent Predator and Restitution, which recovered more than $15 million for victims of violent crime last year.

In 2009, Bock received the Fay Stender Award from the California Women’s Lawyers Association for her “ability to affect change and her commitment to representing the underprivileged. And in 2010, the California Legislature recognized Bock as “Woman of the Year” for her groundbreaking work to stop human trafficking.

“American children are being sold for sex in our own backyard,” Bock warned, as she talked about what she has learned from her decades as a prosecutor. She said solving cold cases “provides closure that is priceless for families of victims” and is part of keeping the community safe. She talked about the fact that she is an independent prosecutor, who won’t be conflicted by police misconduct and crime lab scandals, unlike our current D.A. And she wrapped up by voicing her desire to serve—and remain in—San Francisco. “I am committed to giving back and serving the city I love,” Bock said.

Meanwhile, across the city, D.A. Gascón had just a neighborhood prosecution program in the Bayview and Mission districts. According to a Gascón press release, the program, “brings immediacy to the resolution of crimes that diminish the livability of local communities by employing a restorative justice model” and “brings the D.A.’s Office into the community, positioning the office to be more directly and immediately responsive to the needs of community members.”

Gascón promised that the program will engage “residents in the process of determining an appropriate sanction focused on repairing the harm done to the community and setting the offender on the path to long-term productivity. This approach will bring a swifter and more certain resolution to offenses that have repeatedly gone unchecked for too long.”

The idea is that designated Assistant D.A’s will be assigned to  local police station to pre-screen eligible individuals and determine if the offenses they have been cited for by police are suitable to be heard in neighborhood courts. “Under the supervision of the District Attorney’s Office local residents are trained in restorative justice to adjudicate matters, instead of having cases charged and heard in criminal courts,” Gascón stated. “The adjudicators represent a wide swath of the community and include merchants, home owners retirees and students.”

Gascón says a range of non-violent offenses, including drinking in public, vandalism and petty theft, fit the criteria for matters that can be reviewed in the neighborhood court.“Eligible individuals cannot be under the supervision of the criminal justice system,” he stated. “Individuals who volunteer to have their matters heard in the neighborhood courts agree to abide by the prescribed outcomes that focus on restoring both the community and the offender. Individuals who are successful in meeting the terms avoid the blight of a mark on their criminal record. By taking this restorative justice approach, the program seeks to break the cycle of crime. It increases the accountability of the offenders to the community and the community’s stake in the offenders’ rehabilitation.”

Gascón claimed the program saves money by significantly shortening the length of time it takes to resolve offenses. “Typically the offenses being heard in a neighborhood court in one to two weeks from the time a citation is written would take nine months to a year to be heard in a criminal court,” he stated. “The average cost of having these cases charged and heard in a traditional criminal court would be $1500 per misdemeanor compared to $300 in a neighborhood court.”

Gascón concluded by noting that this new neighborhood prosecution program will operate under the direction of the newly-formed Collaborative Courts Division of the D.A.’s Office and is scheduled to spread citywide. “The Bayview and Mission district launches are part of D.A. Gascón’s initiative to increase accountability and integration of the former Community Court programs,” Gascón’s press release stated. “The neighborhood prosecution program model will eventually be adopted and employed city-wide, district by district as a replacement for the former model.”

Bock for her part seemed less than impressed by the fairness of Gascón’s program. “People dealing with quality of life crimes deserve a District Attorney,  a defense attorney and a judge,” she said. “You can’t shortchange justice “

And she wasn’t shy about sharing her thoughts on the conflict of interest Gascón faces when dealing with the ongoing police misconduct and crime lab scandals.“George Gascón is between a rock and a hard place,” Bock said. “He was in charge of the police district during that time period,” she observed. “And it’s important that the police don’t get thrown under the bus in the process.”

And unlike Gascón, Bock is personally opposed to the death penalty.“I will oppose any effort to further that law, and I would support ballot measures to change it,” Bock said. “It hasn’t had a deterrent effect, it doesn’t make the community safer, but it is the law of the state.”

As D.A., Bock would implement the same procedures that former D.A. Kamala Harris had in place—a committee where each case is reviewed in fact and law, and not reflective of a personal opinion. “I would look at each case,” Bock said.

“I want to make this city as safe to live in as I have fought in Oakland to achieve,” Bock continued, noting that when she graduated, she faced a choice of a corporate job or public service. “I chose public service,” she said.

Unlike Gascón, Bock does not think the city’s recently enacted sit-lie legislation has resolved anything. “Sit-lie is a perfect example of why political hot-button measures don’t work,” Bock said. “People should be able to use the sidewalks. But at the same time, there are people with serious mental health issues. Sit-lie hasn’t solved any problem. And the good news about me is that I am not a politician.”

Congressmember Jackie Speier enthusiastically endorsed Bock. “This is a very important race for San Francisco, and it’s not a political race,” Speier said. “It’s a race about safety and prosecution and making sure we have a District Attorney who is going to be here for thecommunity.”

Speier noted that Bock has worked for some of the finest law firms, has dedicated more than 20 years of her life to prosecuting heinous criminals, has deep roots in San Francisco, and is on the board of numerous non-profits.

“She has been successful in over 1,000 cases—tough cases, including murder, torture and sex trafficking,” Speier continued. “She is someone who has the capacity to handle this job like no one I’ve ever seen. Her passion for her work knows no bounds.”

“And she is truly committed to San Francisco,” Speier added. “It’s no secret that the present occupant of the D.A.’s office is interested in being a highly placed person in the F.B.I. I think Gaston will be good in some respects should he seek that.”

“Politics is a funny thing, the process works the way it does, but the people of San Francisco have an opportunity to compare and contrast—and this is a stark contrast,” Speier concluded, pointing to Bock’s “impeccable credentials and proven track record in the prosecution of criminals,” and describing her as “the best and brightest” as she lauded Bock’s leadership skills and talent as a prosecutor.

Lula Flores, who flew in from Washington, D.C. to announce the National Women’s Political Caucus early endorsement of Bock, described Bock as a “progressive forward-thinking candidate.”

“We need more women in leadership safety positions,” Flores said, noting that Bock “represents diversity and is the most qualified and most experienced candidate.”

“She will do the best job,” Flores continued. “San Francisco is home to a myriad of leaders, it is the place that has grown so many of our national leaders.”

And Shronda Wallace recalled how her mother’s 1989 murder had been “all but forgotten, but then Sharman Bock took charge.”
Wallace described how, using DNA from the crime, Bock “re-created the scene, identified the killer, proved he intended to kill my mother, convicted him, and put him in prison without parole for the rest of his life. Through her determined and relentless prosecution of this cold case, not only did Sharman Bock make me feel safer, but she brought me desperately needed closure, and that is something I will never forget.”





Held underwater


Since the recession began four years ago, 2,000 homes have been lost to foreclosure in San Francisco. These numbers sound insignificant compared to other counties in the Bay Area, but they primarily have hit communities of color already struggling to remain in this expensive city.

As panelists at a recent seminar on foreclosures noted, the first wave hit the Bayview and the Excelsior, while the second hit the Richmond and the Sunset. And as the recession drags on and more borrowers go underwater, another 2,000 foreclosures are on the local horizon.

Although foreclosures continue to destabilize communities and drain resources from local governments, the banking lobby continues to oppose legislative reforms that would allow more people to remain in their homes. And this deep-pocketed resistance has labor, religious, and educational organizations forming the New Bottom Line coalition in an effort to find grassroots solutions to the crisis.

“Foreclosures are the new f-word,” said Regina Davis, CEO of Bayview’s San Francisco Housing Development Corporation, at SFHDC’s April 29 foreclosure seminar.

Sups. John Avalos and Malia Cohen illustrated that there is no shortage of horror stories about predatory lending and dual tracking, in which borrowers apply for loan modifications while the bank continues to pursue foreclosure. Representatives for Sup. Ross Mirkarimi and Assessor-Recorder Phil Ting noted that the banking lobby has blocked even the most modest reforms, even as uncertainty continues to devastate the housing market.

Avalos said his family underwent a housing crisis in 2009, when his wife left her job to home school their special-needs daughter. “We tried to get a loan modification and were told we could only get it by going into default,” he said, recalling how Mission Economic Development Agency (MEDA) helped them navigate the process. “If this could happen to an elected official, it could happen to anyone.”

Cohen, who lost her condo in the Bayview to foreclosure earlier this year, described foreclosure as “an incredible beast that has ravaged and wrecked the finances of many Latino, African American, and Asian communities who were sold the American dream of homeownership but then had the rug pulled away.”

Mirkarimi aide Robert Selna, a former San Francisco Chronicle reporter, said the banking industry spent $70 million last year to kill legislation by state Sen. Mark Leno (D-SF) and Senate President Darrell Steinberg (D-Sacramento) to end dual tracking. This year, the industry has been opposing SB729, Leno and Steinberg’s latest attempt to require banks to give people a definitive answer on loan modification, identify who owns the loan, and give borrowers legal recourse if banks don’t take these steps.

“SB729 gets to the heart of helping to keep people in their homes, but it’s difficult to combat the spending power of the banking industry,” Selna said.

Ben Weber, an analyst in the Assessor-Recorder’s Office, said approximately 277,000 homes in California are going through the foreclosure process; an estimated 1.8 million California residents are underwater on their mortgage; and California is sixth in “negative equity” nationwide. “Negative equity is one of the best indicators of foreclosures — so can we expect another 1.5 million to 1.6 million foreclosures statewide?” he asked.

Weber noted that Ting is supporting AB 1321 by Assemblymember Bob Wieckowski (D-Fremont), which would require that all mortgage assignments be recorded within 30 days of their execution; prevent notices of default from being recorded until 45 days after any deed of trust has been recorded; and provide consumers with better transparency about who owns their debt. Yet Ting’s office reports that the banking industry has lobbied against this and other foreclosure-related legislation

Weber said the legislation is a response to problems with the industry’s Mortgage Electronic Registration System (MERS), which was introduced 15 years ago. “The mortgage industry wanted to expedite the transfer of mortgages between entities so that they could be sold and resold on Wall Street,” Weber said, noting that the system also allowed the industry to avoid paying recording fees to counties.

MERS records an average of 6,700 deeds of trust annually in San Francisco, and MERS deeds of trust are usually transferred two to four times, Weber observed. “So MERS members avoided — conservatively — $134,000 per year in fees.”

Grace Martinez of Alliance of Californians for Community Empowerment noted that the banking lobby already killed AB935 by Assemblymember Bob Blumenfield (D-Northridge), which sought to charge a $20,000 fee to compensate for the estimated cost of a foreclosure to local government. “That money would have gone back to the city,” she said.

In an April 14 letter, the banking lobby claimed Blumenfield’s bill was a tax that increases the costs of homeownership for new borrowers. “It also serves to discourage the importation of capital into California at a time when the federal government is winding down their involvement in mortgage finance and protracts and complicates California’s economic recovery,” stated the letter, which the California Bankers Association, the California Chamber of Commerce, and other business groups signed.

But Dan Byrd, research director at Berkeley’s Greenlining Institute, reminded the mostly black and brown crowd at SFHDC’s foreclosure seminar that declining property values due to foreclosures have drained $193 billion from African American and $180 billion from Latino communities nationwide. “Folks from these communities who had credit good enough to qualify for a prime loan were given subprime loans with adjustable mortgage rates,” he said

Byrd stressed that homeowners facing foreclosures need to be more financially literate. “A lot of loan documents are written in language that people can’t understand, and they don’t have the money to hire a lawyer,” Byrd said, as he urged politicians to fund organizations that provide financial counseling and education. “Our elected federal officials just cut the budget that supports SFHDC and similar groups.”

SFHDC housing counselor Ed Donaldson said appraisal values make it hard to sell the below-market-rate units that are coming online. “So if we don’t do something about the foreclosure problem, the housing market will continue to unwind,” he said, urging people to protests banks and show up at City Hall and in Sacramento to support reform.

The Rev. Arnold Townsend, vice president of the local branch of the National Association for the Advancement of Colored People, said San Francisco likes to pretend that the foreclosure crisis didn’t really affect the city. “But it did,” he said. “It badly hit people of color that the city, by its policies, doesn’t seem to care if they leave.”

Attorney Henri Norris noted that bankruptcy can be an alternative to foreclosure. “A bankruptcy can stop a foreclosure, at least temporarily,” Norris said. He recommends that people make their loans current and try to get a loan modification approved. “But it’s going to take running a marathon.”

Avalos, who is running for mayor, noted that the city does not fund enough affordable housing and he proposed an affordable housing bond that would include assistance for mortgage assistance, ownership downpayment, seismic retrofitting, and energy efficiency. “I understand that voters see no personal benefit, but it would raise wealth in property values,” he said.

Cohen observed that the federal Homeowners Affordable Modification Program (HAMP), which President Obama unveiled in March 2009, “hasn’t worked” and that most of the important reform proposals are “happening at the state level.” She encouraged people to show support for SB729, but wasn’t ready to declare support for Avalos’ housing bond.

“I want to make sure the climate is ripe, that Sups. Carmen Chu and Eric Mar are included, because their districts will be impacted by foreclosures, and that the support is broad-based,” she said. “But folks can divest from banks that have not treated us right.”

Noting that divestment was the most effective way to end apartheid in South Africa, SFHDC’s Davis invited seminar participants to a free screening of Charles Ferguson’s documentary Inside Job, which shows how subprime loans, dual tracking, and mortgage bundling triggered the 2008 financial meltdown — and how many of the main players are still calling the shots.

But despite SFHDC’s informative seminar and the New Bottom Line campaign’s May 3 protest at Wells Fargo’s annual shareholder meetings in San Francisco, SB729 failed to make it out of committee May 4, when Sen. Alex Padilla (D-Van Nuys) announced he would introduce an alternative dual tracking bill. In addition, Wieckowski turned his MERS reform into a two-year bill, suggesting the votes weren’t there to approve it.

Paul Leonard, California director of the Center for Responsible Lending, observed that SB729 supporters include a broad array of consumer, civil rights, labor, faith-based groups, and homeowners, but the only groups in opposition were the California Bankers Association, the Mortgage Bankers Association, and the Chamber of Commerce.

“I find it remarkable that after the exposure of deep-seeded scandals about robo-signing and the systematic shortcomings of mortgage loan service operators, none of the bills intended to address these issues got out of their first committee hearing,” Leonard said.

In an April 20 letter, the banking lobby claimed that SB729 was “unnecessarily complex,” could overlap and contradict actions by federal regulators and state attorneys general, and promote strategic defaults that would negatively affect communities and cloud title for a year following a foreclosure, leaving properties vacant.

Dustin Hobbs of the California Mortgage Bankers Association claims the average time for a foreclosure is more than 300 days. “This would have dragged it out further, and the last thing we need is more vacant homes and more homes in foreclosure,” he said.

Ting noted that Wieckowski made the call to turn AB1321 into a two-year bill. “But you would have thought we were offering the end of home ownership,” Ting said, noting that the banking industry was shocked when advocates produced a MERS memo that encourages banks to record documents and pay fees. “It basically recommended our legislation,” Ting observed.

“Assignments out of MERS name should be recorded in the county land records, even if the state law does not require such a recording,” a Feb. 16 MERS memo said.

Ting describes MERS as “a Wall Street set-up, the ultimate in smoke and mirrors.”

“We did a little poking around in MERS and found that it would help if the name of the loan owner was recorded,” Ting said, noting that the confusion MERS created is bad for consumers, the real estate industry, and homeowners.

“Part of the problem is computer systems doing what banks used to do,” Ting said. “It ended up with robo-signing and foreclosures being sent to the wrong people. I thought AB1321 was a no-brainer, but we had to take it to five or six legislators before anyone would pick it up. This is a prime example of how a particular industry has made a huge amount of money and is unwilling to bend any rules to give consumers any recourse.”

But CMBA’s Hobbs described AB1321 as “part of a broader attack on MERS.” And an April 21 opposition letter from the banking industry describes it as “creating impediments for attracting capital to California’s mortgage marketplace and imposing significant new workloads on county recorders and clerks.”

Ting says he has heard lobbyists make that argument. “But my assessor recorders organization supported it — and they are mostly not elected officials,” he said, noting the group usually doesn’t get involved in promoting legislation.

Ting admits that it’s hard to get the national reforms that are needed. “San Francisco still has a big part to play. And our legislators are still very powerful, so we have no excuse not to be fighting in Sacramento where the Democrats have a supermajority. I mean, how could these bills not get out of committee? It’s not like we didn’t take amendments, but no level of amendments would have made anything happen.”

“Foreclosures typify this financial and political era,” he continued. “They are about all the things we should have seen coming — and some of us did. But even then, and now, there is political amnesia. For all the families that lost their homes, shouldn’t we do something to make sure this doesn’t happen again? Wall Street was bailed out two years ago, but Main Street is still waiting.”

Will SF follow Portland on FBI spy concerns?


The Human Rights Commission and the Police Commission will hold a May 18 joint hearing at City Hall to discuss a recently released memo between the SFPD and the FBI that suggests that SFPD officers assigned to the FBI’s Joint Terrorism Task Force are under the control & rules of the FBI. The concern is that the memo allows SFPD officers to circumvent local intelligence-gathering policies, departmental orders and California privacy laws that prevent spying on people without any evidence of a crime. And the hearing comes a few weeks after Portland’s City Council unanimously approved a resolution that Portland Mayor Sam Adams introduced to clarify that Portland and FBI have decided not to enter into a Memorandum of Understanding (MOU) for the JTTF, but that the City will be cooperating with the JTTF according to the terms of Adams’ resolution.

During Portland’s public hearing, the American Civil Liberties Union (ACLU) of Oregon testified in support of the resolution, while raising concerns about the current and past practices of the FBI and the need to ensure that City personnel comply with Oregon laws.

“The Mayor’s proposal represents a thoughtful framework that should meet the City’s and the FBI’s needs to keep our community safe while also ensuring that Portland police stay within the confines of the Oregon Constitution and Oregon Charge of such violations, and a public annual report on the work the Portland Police Bureau does with the FBI JTTF,” ACLU Legislative Director Andrea Meyer stated.

“It is not a question of if but when, our officers will be asked to engage in investigative activities in violation of Oregon law,” Meyer testified. “To guard against this, we expect that there will be appropriate training of PPB personnel not just on Oregon law but on the FBI guidelines and the minimal criteria necessary for them to be able to engage in assessments and preliminary inquiries so that our PPB officers will be equipped to ask the right questions and refuse to participate and report this to the Chief and, in turn, the Commissioner-in-Charge.”
During Portland’s hearing, Mayor Adams stressed that the FBI’s standard JTTF MOU (which is similar to the agreement SFPD officers have operated under since March 2007) —is neither clear nor adequate in terms of addressing local civil rights concerns. And that’s why he sought and won federal consent for a non-MOU arrangement with Portland participating on a limited basis, on its own terms, with local civilian oversight and involvement from the City Attorney.  

“The question pending in SF is whether local officials — from the Police Commission, to City Attorney, to Mayor, will eventually insist on a similarly protective arrangement here, “John Crew of the ACLU of Northern California told the Guardian. “Right now, Portland shows what’s possible, and what the federal government will accommodate. I don’t know why Bay Area cities would not insist on at least something this strong.”

San Francisco’s joint hearing takes place May 18, 5:30 p.m. – 8:30 p.m. in Room 250 at City Hall.

Campos urges Lee to implement entire due process law


Text by Sarah Phelan. Photographs by Luke Thomas

After the Guardian broke the news that Mayor Ed Lee was planning to only partially implement Sup. David Campos’ due process legislation, we headed to City Hall to witness Lee announce his partial shift during question time. And afterwards, Lee told reporters that he spent the months since he was appointed reviewing the policy and talking with leaders in the city’s juvenile justice departments.

“I looked at the difference between youth with family here and youth who did not,” Lee said, noting that his decision to let youth that have family here to have their day in court is in keeping with his policy of focusing on family reunification and getting families more involved.

Lee stressed that youth with family here will still need to be enrolled in school and not be repeat offenders in order to have their day in court.

“It will be decided upon on a case by case basis,” he said.

Lee said he has had conversations with the federal government and US Immigration and Customs Enforcement (ICE) about the policy shift. “We have discussed this,” Lee said. “And we did get a very strong feeling that the federal government is a bit confused.”

Asked how far he is willing to go to defend this latest policy shift, Lee said, “I’ll take that up as it comes. President Obama is struggling with immigration right now.”

Reminded that his predecessor Mayor Gavin Newsom refused to implement any aspect of Campos’ due process legislation, even though a super-majority of the Board passed the ordinance in 2009, Lee said, “I don’t compare myself with the former mayor.”

Asked what percentage of immigrant youth that end up getting booked are “unaccompanied,” Lee said he did not have those statistics. “Check with Siffermann,” he said, referring to the head of the city’s Juvenile Probation Department.”

Lee’s announcement was met with mixed reviews among immigrant advocates.

Civil rights groups applauded Lee’s decision to immediately begin implementation of Campos’ legislation, which was passed in November 2009, restores due process for immigrant youth in the city’s juvenile justice system and ensures that innocent youth are not torn from their families for deportation.  But they also expressed disappointment that Lee will only be implementing the policy for youth who have immediate family here, and not for unaccompanied youth.  And they all urge him to fully implement what they described as Campos’ “duly-enacting, common-sense law so that all innocent youth receive protections.”

They noted that implementation of Campos’ broadly-supported law, which has been endorsed by over 70 organizations, had been stalled until today due to former Mayor Newsom’s refusal to enact the law. 

Under Newsom’s direction, Juvenile Probation reported over 160 youth to ICE at the point of arrest, prior to the youth receiving due process, based only on a juvenile probation officer’s “reasonable suspicion” that a youth is undocumented. 

Civil rights advocates note that Newsom’s problematic policy was responsible for tearing innocent youth from their families and spreading fear among immigrant residents around coming forward to cooperate with police, either as witnesses or victims of crime.  

And they observe that the policy that Juvenile Probation Department has been enforcing since the summer of 2008, and which involved reporting youth for life-altering deportation at arrest, went well above and beyond any obligations under federal law. 

They noted that, as a cadre of legal scholars, including University of San Francisco Law Professor Bill Ong Hing, have repeatedly made clear, there is no requirement imposed on city officials under federal law to ask about immigration status or to report individuals suspected of being undocumented.”

Ana Perez, executive director of Central American Resource Center, agreed.“While we appreciate Mayor Lee taking action to finally begin implementation, we are concerned that he is only implementing the policy for accompanied youth and not for youth who may be unaccompanied because they are trafficked to this country, are orphans, or are escaping persecution.”

“I’m certain it’s not for all youth,” Pérez continued. “So, it’s a small win. But what about the kids who are victims of human trafficking? The fact is we spent so much time developing a policy that was approved by a majority of the Board. So, this is bitter sweet.”

Asked what became of the criminal grand jury investigation that then US Attorney Joe Russoniello initiated in 2008, when Mayor Gavin Newsom was running for governor, and news first broke that the city was accompanying youth who weren’t here with family back to their home country, Pérez suppressed a snort. “It seems that was a bunch of empty threats to try and get the city to move to a more conservative position,” she said. “It’s been a whole new day with Obama.”

Angela Chan, staff attorney at the Asian Law Caucus said that Juvenile Probation’s prior policy of reporting innocent youth exacerbated the impact of a broken federal immigration system on local immigrant families. “We appreciate that Mayor Lee has taken this long awaited step forward because he values family unity and due process for youth,” Chan said. “However, we ask that the Mayor not exclude unaccompanied youth from receiving due process protections.”

Patricia Lee, managing attorney in the Juvenile Unit at the Public Defender’s Office also supported the demand for complete implementation of Campos’ legislation. “If you want the immigrant community to feel safe enough to cooperate with police and probation, then those agencies should not be viewed as representatives of immigration,” she said. “My clients and their families are scared of probation, they are scared of police. Selective implementation of the due process policy for only accompanied youth and not to unaccompanied youth does not solve this problem.” 

And Charles Washington, the Muni bus driver and longtime San Francisco resident, whose wife and 14 year old son were almost separated from him as a result of the prior Juvenile Probation policy, expressed concern that the policy would only be implemented for some youth. “I’m glad to see Mayor Lee is doing the right thing by implementing the due process policy,” he said. “However, he should not leave any youth, especially those who are most vulnerable, behind.”

Sup. Campos applauded the Mayor for implementing the policy while expressing disappointment that it is only partial implementation. As Campos’ stated during the Board meeting, but after Lee had already left, “This body enacted that law and that law needs to be respected.  It is not up to the executive branch to second guess the legislative branch.” 

Sup. Eric Mar added that he supports full implementation for all youth.

 And Sup. Jane Kim, who asked the Mayor during the Board’s Question Time about his plans for implementation, stated, “My hope is that he will commit to full implementation of this policy.”

But in the end, the burden fell on Campos to explain why partial due process is unjust. “This is a good first step, but it doesn’t go far enough,” Campos explained. “As I understand it, the decision Mayor Lee has taken is, that if you are a minor, and are accused of a felony, you will be given due process if you have family here. But if you are charged with a felony, but don’t have family here, then you will not be given due process. Let me begin by thanking Mayor Lee for at least taking one step in the right direction. That said, we still will not have full compliance with a law that was duly enacted by this body. Full compliance means giving every child that interacts with the juvenile justice system due process. So, {Mayor Lee’s first step] is simply not sufficient.”

Campos noted that when mayors are sworn in, they agree to uphold laws that the Board enacts. “So, the law needs to be respected,” Campos said. “It’s not up to the executive branch to second guess the legislative body. That second guessing can only be done by the courts. Therefore, we, once again, ask the mayor of San Francisco to comply with full implementation.”

Noting that a bedrock of the U.S.’ justice system is the principle that we are innocent until proven guilty, Campos said that if the mayor does not fully implement the law, as approved by the Board, “There’s a very real possibility that children that we are reporting [to ICE for possible deportation] are not guilty of what they have been accused of. So, once again, I ask the mayor to reconsider his opinion.”

Campos also noted that there are already procedures in place, within the existing juvenile justice system, to ensure that “we do not have individuals released who should not be.”

After the meeting, Campos noted that the format for the Board’s question time with the mayor currently leaves something to be desired: an opportunity for the Board to reply.

“It would be better if it would allow for some exchange, though obviously, we don’t want it to be a ‘gotcha’ game. But at this moment, it’s too rigid.”

 Asked who drafted the current Question Time format, Campos replied, “Board President David Chiu.”

Garbage shuffle


The Department of Public Health has scheduled a May 13 hearing to review allegations that Recology subsidiary Sunset Scavenger overbilled for trash collection at a condominium building for years, resulting in $84,544 in excess charges, erroneously charged the building commercial rates, and is refusing to make a full refund. Recology counters that the building’s managers oversubscribed, and the company gave a three-month refund as a show of good faith, but considers additional refunds punitive.

The hearing should interest the 21 percent of San Francisco residents who own units in condominium buildings. According to the Assessor-Recorder’s Office, 42,478 of the city’s 200,409 recorded parcels are now condominiums, with 3,192 registered as live/work, 38,300 as market rate, 980 as below-market rate, and 958 as commercial condo parcels as of fall 2010.

This struggle between ratepayers and Recology, which controls almost all aspects of the city’s $275 million-a-year waste stream, seems emblematic of the problems that can arise when a monopoly is only partially regulated by local officials (the city does not have oversight of commercial collection rates) and then only in a labyrinthine process.

DPH’s May 13 hearing comes three weeks after the Board’s Budget and Finance Committee voted to wait until July before deciding whether to award the city’s next landfill disposal contract to Recology. And it hits 18 months after the Department of the Environment, which derives half its budget from Recology’s rates, first tentatively awarded the city’s landfill contract to the San Francisco based garbage giant.

Since then critics have questioned how Recology got its monopoly, whether the arrangement benefits rate payers, and whether it makes environmental sense to haul the city’s trash all the way to Yuba County, as Recology is proposing.

In February, the budget and legislative analyst recommended that the city replace existing trash collection and disposal laws with legislation that would require competitive bidding on all aspects of the city’s waste collection, consolidation, and recycling system.

The analyst also recommended requiring that refuse collection rates for residential and commercial services be subject to board approval, noting that competitive bidding could result in reduced refuse collection rates (see “Garbage curveball,” 02/8/11).

“The latest report says that the current system has been in existence since 1932 and let’s put it out to competitive bid,” said budget and legislative analyst Harvey Rose.

A 2002 report by Rose noted that the city has no regulatory authority over commercial refuse rates. “Instead, commercial rates are subject to agreements between the permitted and licensed refuse collectors and individual commercial producers of refuse, commercial tenants and building owners,)” the report stated.

Rose’s report also found that commercial building owners often pay commercial refuse fees to Recology, so tenants don’t know how much they are paying. “Normally, if tenants occupy such buildings for commercial purposes, the commercial refuse fees are passed on to the tenants as part of the overall rent and operating costs. As a result, it is likely that many commercial tenants do not know how much they are actually paying for commercial refuse collection,” the report found.

It also noted that when the analysts attempted to complain about commercial refuse collection and commercial refuse rates (“for audit procedure purposes”) and to inquire how to lodge a complaints with the city, there was “nobody to call.”

Fast-forward nine years, and Golan Yona, who sits on the board of the Alamo Square Board Homeowners Association, which represents 200 residents in a 63-unit building on Fulton Street, claims the city gave him the run-around when he complained that, over a four-year period, Recology subsidiary Sunset Scavenger billed his building to pick up two, two-yard compactor containers three times a week but only picked up one. “Each time one of the bins is being put out for collection, the second bin is connected to the trash chute,” and thus not in service for pickup, Yona said.

But Recology claims that HSM Management, the company the homeowners association hired to manage its building, “oversubscribed” for waste collection. Recology also notes that the commercial rate the association paid resulted in the building being charged a lower monthly cost, but that Sunset recognized this as an “internal error” and therefore is not pursuing collection of the undercharged amounts.

Recology spokesperson Adam Alberti characterized the disagreement as “a pretty simple billing dispute,” even as he claimed that HSM sometimes put two bins curbside.

“Recology has been providing a level of service that was not fully utilized,” Alberti said. “They had two bins and were only setting out one, though there were numerous times throughout the year when they set out two bins.”

Alberti said the responsibility lies with the condo group, which opted for that level of bin service. “At some point they called to discuss ways to reduce their bill, at which point Recology suggested they reduce their service to one bin. At that point, the homeowners association sought compensation,” he said.

“No, this is based on actual consumption,” Yona told the Guardian, claiming that Sunset has no problem charging extra if buildings put out extra bins.

Alberti claims it’s “far more common” for buildings to oversubscribe. “They plan for peak times,” he said. “As a good faith gesture, the company sought to come to terms with the customer — but they weren’t able to do so.”

DPH’s Scott Nakamura confirmed that rate hearings are rare in his department. “This is the first time in 30 years that I have heard of a dispute like this going to the DPH — and I’ve been working here more years than I’d like to admit,” he said.

Based on his experience and Rose’s 2002 report, Yona suspects that the reason for this lack of hearings lies with a lack of process — not a lack of complaints.

Yona held up a flow chart that depicts 17 contacts he had with City Hall in a five-week period as he tried to find out how collection rates are set, how homeowners can determine what their building should be paying, and how they can register complaints.

These included calls to the City Attorney’s Office, Department of Public Works, Department of Public Health, and the DPH’s offices of Environmental Health and Solid Waste.

As a result of his persistence, Yona discovered that the city’s refuse collection and disposal ordinance, adopted Nov. 8, 1932, stipulates that DPH’s director can revoke the license of any refuse collector “for failure in the part of the refuse collector to properly collect refuse, or for overcharging for the collection of same, or for insolence toward persons whose refuse he is collecting.”

In a complaint submitted to DPH director Barbara Garcia on behalf of Alamo Square Board HOA, Yona wrote: “We would like to note that our attempts to talk to the right authority in City Hall have met so far with difficulty. The seriousness of the matter requires intervention of the highest authority in City Hall.” 

Mayor Lee to partially implement Campos’ due process ordinance


Today at question time, Sup. Jane Kim will ask Mayor Ed Lee what his plan is to implement a due process ordinance that Sup. David Campos authored and a super majority of the Board approved in 2009, prohibiting the Juvenile Probation Department from reporting undocumented youths at the time of arrest. And according to an anonymous source, Lee will say he has decided to implement the policy, if the youth in question are “accompanied,” which means they have family here.

Immigrant advocates say Mayor Lee should be commended for his leadership in implementing the due process policy to keep immigrant families together. But they believe that Lee needs to go the whole way. “Immigrant and civil rights groups are adamant that the policy must be implemented for all youth, accompanied and unaccompanied, and this has to be immediately,” our source said. “The due process policy does not discriminate between these two groups and the policy cannot be selectively enforced.”
As Kim planned to point out during the Board’s question time, voters approved San Francisco’s Sanctuary City Ordinance in 1989. That ordinance prohibits our Police Department and local government officials from assisting in the prosecution of immigration enforcement unless it is required under federal or state law.

In 2009, the Board, under Campos’ leadership, passed-by a supermajority-a clarification to that ordinance to prohibit local law enforcement from reporting undocumented youths unless they are convicted of a felony. To date, this ordinance has not been followed by the City.

But in a May 9 memo to the city’s Probation Department personnel, Juvenile Probation Department Chief Probation Officer William Siffermann and Assistant Chief Probation Officer Allen Nance wrote that since revising JPD’s policy 8.12 nearly three years ago [per Mayor Gavin Newsom’s instructions], they have closely monitored JPD’s implementation of its protocols.

And after considering all perspectives and after careful review, they have decided to “modify our existing policy in a manner that aligns our Departmental policies more closely with the values inherent within San Francisco’s Sanctuary City ordinance, without compromising our balanced commitment to public safety and the best interests of the minor.”

“Effective immediately, San Francisco Juvenile Probation Department notices to the federal authorities of minor/persons booked on felonies who are suspected of being undocumented AND are accompanied (lives with a verifiable parent, guardian or blood relative in the immediate Bay Area and is enrolled in school) will be made only upon a felony adjudication, upon apprehension on an outstanding warrant, or upon issuance of a new warrant following release from custody pending adjudication,” the JPD memo reads. “Minor/persons booked on felonies who are suspected as being undocumented, AND are verified adults or unaccompanied by any verifiable parent, guardian or blood relative residing in the Bay Area, whether or not enrolled in school, will continue to be reported to the federal authorities upon determination of this status.”

“Policy 8.12 will continue to ensure that all suspected undocumented minors booked and convicted of committing a felony will continue to be reported to the federal authorities,” the JPD memo continues. ‘While the Department will neither assist nor interfere with the federal authorities’ overwhelming duties and responsibilities related to the enforcement of immigration laws, we will continue to honor their lawful detainers regarding suspected illegal immigrants.”

“We are confident that your uniform compliance with this policy adjustment will continue to reflect the Department’s interest and your professional commitment to preserving families while we discharge all of our many duties that protect public safety,” the JPD memo concludes.

Legal scholars weigh in on Secure Communities


In face of statements by Secretary of Homeland Security Janet Napolitano, three legal scholars in California have offered their opinions on recent developments surrounding immigration enforcement in California and “Secure Communities” (S-Comm) a program run by U.S. Immigration and Customs Enforcement (ICE) that automatically shares fingerprints at the point of arrest by local law enforcement.

Napolitano recently asserted that states and localities have no power to decide whether to participate in S-Comm, raising serious concerns about overreaching by the federal government and intrusion into local police power. In response, Aarti Kohli Director of Immigration Policy at the Warren Institute on Law & Social Policy at UC Berkeley’s law school, and law professors Hiroshi Motomura and Bill Ong Hing have weighed in on the growing controversy to provide, “accurate and important analysis on the legal terrain surrounding S-Comm.”

Kohli said that the reason academics are weighing in now is to point out that just because the federal government is asserting that it has certain authority doesn’t mean that’s the case, and that there are people who are interpreting the law differently.
“It’s not a cut and dry situation,” Kohli said of the federal government’s current position. “Strong arguments can be made that the federal government is overreaching.”

Kohli notes that at least 60 percent of the people who are currently in the country unlawfully entered the United States before 2000. “So, they have been here for over 11 years,” she said, noting that the last legalization opportunity for folks who entered unlawfully occurred in 1986. “So, you are talking 26 years ago,” she said, noting that there used to be many more options for people to adjust their status. “So, now you have people who have lived in the country for two decades who have not been able to legalize their status.”

Kohli observed that given the economic crisis, cooperating with the feds’ controversial “Secure Communities” program also becomes a question of priorities. “It becomes a question of where do you want to put your enforcement dollars,” she said, noting that state and local governments facing restraints in terms of jail space and resources. “So, does it make us safer to lock up low-level offenders, people who we would otherwise never dream of locking up, particularly in face of the constraints at the state and local levels?”

Initial research conducted by UC Berkeley’s Warren Institute’s indicates that S-Comm does implicate the use of local resources. 
“Data indicates that the majority of non-citizens who are booked into ICE custody through Secure Communities have been accused of low-level offenses, including traffic-related misdemeanors,” Kohli said in a press statement. “ Under typical circumstances, localities would allow low-level arrestees to post bond soon after an arrest.  However, if ICE issues a request for the local jurisdiction to hold the person, then bond is often denied and the person must remain in the local jail until the case comes before a judge.  Because of ICE holds, local jurisdictions use their own limited resources to feed, detain, and manage low-level offenders who would ordinarily not remain in custody.  All of this occurs before the person is even taken into custody by ICE.  Secure communities has resulted in a dramatic rise in ICE holds issued to local jails, thereby overburdening local law enforcement with the detention of those arrested on minor offenses who would not normally be held for extended periods.

Hiroshi Motomura, a law professor at UCLA, asserted that S_Comm undermines trust between local law enforcement and immigrant communities, may overstep the constitutional authority of the federal government to tell local governments how to run their police departments—and has a more basic flaw that has  policy and constitutional dimensions. “It is that the program delegates to local police the discretion to decide who—through stops and arrests—will be put into the immigration enforcement system, and who will not,” Motomura said in a press statement. “Even if the federal government retains the theoretical power to decide not to deport some non-citizens, local police will become the gatekeepers. As a practical matter, their decisions to arrest some residents but not others, to get tough with some neighborhoods but not others, will drive and direct federal immigration policy.  The constitutional command that U.S. citizenship is national citizenship means that immigration enforcement decisions can’t be left to local preferences—and local prejudices.  The local government proponents of opt-out aren’t arguing that they should be allowed to make immigration decisions.  Instead, they are arguing that no local officials should be allowed to make what must ultimately be national policy.”

And Bill Ong Hing, a law professor at the University of San Francisco reacted to ICE’s stated position that states and local governments must participate in S-Comm: “In the immigration field, the concept of preemption is an appropriate check on over-zealous local enforcement efforts that directly affect immigration regulation, while the Tenth Amendment is a check on federal intrusion on a local jurisdiction’s attempt to be more protective of individual rights and when the locality has a legitimate non-immigration-related purpose such as public safety,” he said. “The central teaching of the Tenth Amendment cases is that ‘even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.’ Congress may not, therefore, directly compel states or localities to enact or to administer policies or programs adopted by the federal government. It may not directly shift to the states enforcement and administrative responsibilities allocated to the federal government by the Constitution. Such a reallocation would not only diminish the political accountability of both state and federal officers, but it would also ‘compromise the structural framework of dual sovereignty,’ and separation of powers. Thus, Congress may not directly force states to assume enforcement or administrative responsibilities constitutionally vested in the federal government.”

Ong Hing also noted that S-Comm’s current Memorandum of Agreement (MOA) between ICE and the State of California provides that it may be ‘modified at any time by mutual written consent of both parties. “The implication of this provision is clear: the terms of the MOA are negotiable,” he said

The trio’s move comes as local authorities in California and across the nation are increasingly turning against S-Comm, arguing that it overburdens local law enforcement with civil immigration enforcement, and results in high budgetary and social costs. 
Community advocates and several elected officials have already asserted that S-Comm harms community policing strategies by eroding trust between victims and witnesses of crime and police who fear immigration consequences. They cite examples of domestic violence victims in San Francisco and Maryland who have been placed in deportation proceedings after they called local law enforcement agencies for help.

In San Francisco, Sheriff Michael Hennessey has already asked to opt out of S-Comm because it casts “too wide a net”. Under the current program, S-Comm calls for fingerprinting and federal immigration database checks of arrestees, including those jailed for minor offenses like a broken taillight. And community advocates warn that the program can result in deportation without conviction or a trial. But the federal government has stated that only states can opt out. Last week, shortly after Illinois announced that it was pulling out of S-Comm, and a bill that Assemblymember Tom Ammiano authored, requiring the Attorney General to allow California counties to opt out of the program passed out of a committee, Hennessey announced that he will start releasing from jail undocumented immigrants who have been arrested for low-level crimes, even if federal officials notified through S-Comm’s fingerprint identification program request that they be held for deportation hearings.

Hennessey’s new policy is set to begin June 1. It means that undocumented immigrants arrested for petty crimes such as disorderly conduct, drunk in public or shoplifting will not be held in jail until ICE come to collect them. And it will make San Francisco the first California county to implement such a policy.

Hennessey explained that local jails are not required to hold inmates if ICE has identified them as undocumented, so sheriff’s deputies won’t be violating the law. Currently, sheriff’s deputies hold undocumented immigrants who have been booked for low-level offenses until ICE picks them up. But under the new policy sheriff’s deputies will release them with a citation as they do in cases involving U.S. citizens.

Hennessey, who is retiring and has endorsed Sup.Ross Mirkarimi in the race to replace him this fall, says the shift is intended to uphold the city’s sanctuary ordinance, which prohibits local officials from assisting ICE unless a felony crime is involved.

ICE’s own statistics seem to support Hennessey’s concerns: From June 2010 until February, 111 people that S-Comm identified were deported without being convicted in criminal court. 85 people who committed the lowest two levels of crimes were deported, plus 45 who committed felonies, including rape and assault.

But ICE spokeswoman Virginia Kice decribed Hennessey’s decision as “unfortunate”.
“ICE detainers are an effective tool to ensure that individuals arrested on criminal charges, who are also in violation of U.S. immigration law, are not released back into the community to potentially commit more crimes,” Kice said in a statement.

Illinois pulls out of Secure Communities


As California considers reforming Secure Communities, Illinois announced today that it is terminating its involvement in the controversial federal immigration program. California and Illinois moves come in face of Washington D.C’s decision to opt out of S-Comm and Washington State’s refusal to participate. And they test ICE’s claims that the program is mandatory, as other states watch these developments.

(UPDATE: Yesterday, I erroneously reported that New York State had refused to participate in S-Comm.That is not the case. New York State does allow jurisdictions to participate, they have a MOA with ICE, and 8 more counties just joined. I confused NY with Washington State, which has refused to join.)

In a May 4 letter to Immigration and Customs Enforcement (ICE), Illinois Gov. Pat Quinn enclosed a notice from Illinois State Police (ISP) director Hiram Grau, notifying ICE that because of its indiscriminate use of the “Secure Communities” deportation program, Illinois is terminating the November 2009 S-Comm Memorandum of Agreement (MOA) between ISP and U.S. Department of Homeland Security’s ICE.”

“The stated purpose of the program, as set forth in the MOA, is to “identify, detain and remove from the United States aliens who have been convicted of ¬serious criminal offenses and are subject to removal (emphasis added), ICE’s statistics on the Secure Communities program, compiled through February 28, 2011, reveal that the implementation of the Secure Communities program in Illinois is contrary to the stated purpose of the MOA: more than 30 percent of those deported from the United States, under the program, have never been convicted of ¬any crime, much less a serious one. In fact, by ICE’s own measure, less than 20 percent of those who have been deported from Illinois under the program have ever been convicted of a serious crime.”

Quinn notes that on November 9, 2010, his office directed ISP to suspend S-Comm until a review of the program and its adherence to the MOA could be conducted. “Upon evaluation of data provided by ICE to the State of Illinois, conversations between ICE and members of my administration, and a new, proposed MOA from ICE, it’s clear that the conflict between the MOA as signed by ISP and ICE’s implementation of the program cannot be resolved to the State of Illinois’ satisfaction.”

“With this termination, no new counties in Illinois can be activated and those counties that were previously activated… must be deactivated and removed from the Secure Communities program,” Quinn concludes.

Illinois’ move comes as California Assemblymember Tom Ammiano’s Transparency and Responsibility Using State Tools (TRUST) Act passes out of the California Assembly’s Public Safety Committee, next stop appropriations. The TRUST Act would allow local governments to opt out of S-Comm or set standards for jurisdictions that chose to participate. Joining Ammiano as co-sponsors of the TRUST Act are Assemblymembers Gil Cedillo (D-LA) and Bill Monning (D- Carmel) and Sen. Leland Yee (D-SF). Endorsers include 80 organizations, local governments and elected officials, including the Santa Clara and Santa Cruz County Boards, San Francisco Sheriff Michael Hennessey, who blew the whistle on S-Comm in San Francisco a year ago, and has endorsed San Francisco Sup. Ross Mirkarimi in the sheriff’s race this fall, retired Sacramento Police Chief Arturo Venegas, and civil rights and faith groups, including the California Partnership to End Domestic Violence, the California Labor Federation, the San Bernardino Catholic Diocese and Equality California.

Advocates hope Ammiano’s TRUST Act will restore balance and accountability to the nation’s immigration system. They charge that S-Comm’s misleading focus, over-broad reach and lack of transparency have eroded trust between police and immigrant communities, making victims and witnesses to crimes reluctant to come forward.

The TRUST Act would make S-Comm an “opt-in” program so local governments can tailor their participation based on local needs.The bill would set safeguards for municipalities that do elect to participate in S-Comm to guard against racial profiling and would ensure that children and domestic violence survivors are not swept up by S-Comm. The TRUST act also upholds the right to a day in court by only reporting for deportation individuals convicted – not merely accused – of crimes.

These moves come fresh in the heels of Congressman Luis Gutierrez’s April 27 appearance in San Francisco, where he was joined by San Francisco Sups David Campos and John Avalos, and Board President David Chiu in asking President Obama for administrative relief from rapidly increasing deportations.
“We need to stop deporting parents and ripping apart all families, including same-sex partners, “ wrote Chiu, Campos and mayoral candidate Avalos. “We need to stop deporting students who would have been eligible for the DREAM ACT. Last year, the U.S. deported an estimated 400,000 immigrants, the highest number of deportations per year in the history of our nation. We must allow our counties to opt out of  “S-Comm” (Secure Communities), which is making our communities less secure, and we support Congressman Gutierrez in these courageous requests. Immigrants are part of the fabric of our communities, and we need to fix our immigration system so everyone who lives here can continue to live as a full member of society without constant fear of safety, security, and livelihood being jeopardized at any moment.”



Hundreds Protest Wells Fargo Shareholder Meeting in SF


The New Bottom Line, a national campaign to hold banks accountable for foreclosures, kicked off in San Francisco this week, as hundredsmarched through the Financial District to demand that Wells Fargo change corporate policies that bankrupt families, dismantle neighborhoods, and empty public coffers.
During the bank’s annual May 3 shareholder meeting, a group of homeowners and clergy addressed Wells Fargo CEO John Stumpf to demand a foreclosure moratorium.
According to protest organizers, which include Contra Costa Interfaith, ACCE (Alliance of Californians for Community Empowerment) and other members of the New Bottom Line Campaign, unlike other national banks, Wells Fargo has not changed its foreclosure procedures despite reports of “robo-signing” and other foreclosure irregulalities.
“Since 2005, I have been fighting Wells for wrongful foreclosure,” San Leandro resident Donna Vieira said in a press statement. “But through this process, I have learned that I am not alone. A quarter of foreclosures in this country happen right here in California and 700,000 families are in foreclosure right now. We need these banks to have a new bottom line that includes investing in our communities.”
The New Bottom Line Campaign notes that, according to the U.S. Departments of Treasury and Housing and Urban Development, 350,169 Wells Fargo homeowners were eligible for the Home Affordable Modification Program (HAMP) by the end of 2009. But as of Feb 2011, only 77,402 homeowners have received permanent modifications.
Protestors note this only amounts to a 22 percent modification rate, more than two years after the HAMP program began. They also charge that Wells Fargo has canceled 118,697 trial modifications and denied 175,336 homeowners from accessing HAMP.But during this same two-year period, Wells Fargo received nearly $43.7 billion in federal bailout funds, according to a study by the nonpartisan think tank, Nomi Prins of Demos.And in 2010, Wells Fargo reported to the Securities and Exchange Commission that it paid its CEO John Stumpf more than $17 million, including a $14 million bonus.
Protestors also claimed that, over the last ten years, Wells Fargo has paid the lowest worldwide tax rate of the top five biggest banks and did not pay federal taxes in 2009.
Protestors said the May 3 action was supported by a coalition of community organizations, congregations, labor unions, and individuals working to challenge established big bank interests on behalf of struggling and middle-class communities.
“Together, we work to restructure Wall Street to help American families build wealth, close the country’s growing income inequality gap and advance a vision for how our economy can better serve the many rather than the few,” campaign organizers stated.
The New Bottom Line campaign, whic includes National People’s Action, PICO National Network, Alliance for a Just Society, ACCE, and Industrial Areas Foundation of the Southeast (IAF-SE), is making five main demands of Wells Fargo.

“We are demanding that Wells Fargo establish a moratorium on all foreclosures until it negotiates with our coalition to establish comprehensive reforms to their loan modification practices, including offering principal reduction; affordable, fixed interest rates; and provide proof of ownership of the loan,” NBL said in a press release. “We are also calling on Wells Fargo to cease all illegal evictions of tenants in foreclosed properties and commit to working with real estate companies and servicers who follow local and state tenant protection laws.”

“We are demanding that Wells Fargo stop financing predatory payday lending companies and stop providing predatory payday loans to their own customers,” NBL stated.

“Cities and counties estimate that it costs approximately $34,000 per each foreclosed home that becomes vacant and a potential blight on our communities,” NBL continued. “We are demanding you maintain and PAY the fines on your blighted properties and help share in the cost to our cities and counties starting with Cities and Counties throughout California with Foreclosure Blight and Building Registration Ordinances.”

“Wells Fargo needs to stop exploiting loop‐holes in property tax laws and federal tax shelters to avoid paying its fair share of local, state and federal taxes,” NBL stated.

“We are calling on Wells Fargo to stop investing in the GEO Group and other corporations that are profiting off of immigrant detention centers and private prisons that detain immigrants and separate families,” NBL concluded.

During the May 3 action, eight protestors were reportedly arrested for civil disobedience.