Steven T. Jones

Activists win legal victory just as the circus comes to town

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Animal welfare advocates and other critics of Ringling Bros. and Barnum & Bailey Circus just won an important free speech court victory against the city of Oakland just as they prepare to protest the circus starting its annual run there tomorrow.

The grassroots group Humanity Through Education announced that it has reached a $500,000 settlement with Oakland to a lawsuit that plaintiffs Pat Cuviello and Deniz Bolbol filed following their 2004 and 2005 arrests while trying to document abuses of elephants by circus employees.

The settlement includes an injunction allowing the activists to freely videotape the circus operations and to distribute literature critical of circus practices, which they will exercise starting tomorrow (Wed/8) at 6:30pm outside Oakland Arena, where Ringling Bros. begins a five-day run.

“Pictures of Ringling Bros. Circus training of baby elephants will be on display and behind-the-scenes video of Ringling elephant handlers beating the animals will be shown on a large screen. The Ringling elephant handlers videotaped beating the elephants are the same handlers working the elephants in Oakland this week,” the group said in a press statement.

To read more about how Ringling Bros. treats its elephants and its critics, read our 8/12/08 cover story “Dirty Secrets Under the Big Top.”

Supervisors prepare to receive Mirkarimi case from Ethics

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The Board of Supervisors this week adopted a plan for considering ousting their former colleague, suspended Sheriff Ross Mirkarimi, on the official misconduct charges brought by Mayor Ed Lee in connection with Mirkarimi grabbing his wife’s arm on Dec. 31. The Ethics Commission is scheduled to make its final recommendation on Aug. 16, after which it will cull together the mountain of documents and evidence developed over the last four months.

Ethics Commission Executive Director John St. Croix tells the Guardian that it will take at least three weeks after the commission votes to compile an official record that already includes documents that now fill three five-inch-thick binders, which will grow with the “findings of fact” and recommendations that the commission will adopt on Aug. 16.

So the board won’t formally get the case until Sept. 6 at the earliest, at which point it will have a City Charter-mandated 30 days to make a decision, which requires at least nine votes from the 11-member board to remove Mirkarimi from office. Board sources say they want to give supervisors some time to review the voluminous record before the hearing, but still allow for a continuance if necessary, making the likely hearing date Sept. 18 if all goes according to schedule.

“Everything we have so far is available online, so if they wanted to get a head start, they’re welcome to,” St. Croix said of the supervisors.

Despite the fact that the commission spent lots of painstaking hours ruling on the admissibility of evidence – including cutting out most of the 22-page declaration of Lee’s star witness, Mirkarimi neighbor Ivory Madison, with commissioners ruling it was a prejudicial attempt to “poison the well” – St. Croix said the entire record will be passed on to supervisors, with strike-throughs or similar indicators for evidence ruled irrelevant or prejudicial.

“It’s got to be easy to understand because once the board gets it, the 30-day clock is ticking, so it needs to be clear,” said St. Croix, who says he is still weighing how much of the evidence can be transmitted electronically versus in paper form.

The Ethics Commission opted not to explore accusations that Mayor Lee committed perjury on two separate issues during his live testimony, but the issue of whether he consulted with any supervisors is likely to come up again as it goes to the board. Supervisors, who essentially act as jurors in these proceedings, have been legally barred from discussing the case, particularly with Lee.

Building Inspection Commissioner Debra Walker said her friend Sup. Christina Olague told he that Lee once asked her about filing charges against Mirkarimi. Olague denied it, but then told reporters that she may recuse herself from the case. One other supervisor is also rumored to have discussed the case with Lee (who denied it under oath).

When Mirkarimi attorney David Waggoner addressed the board on Tuesday, he asked them to affirmatively declare they have not discussed the case with anyone before deliberating. Any supervisors who recuse themselves would become de facto votes to keep Mirkarimi in office because doing do still takes nine votes, no matter now many supervisors actually vote.

Waggoner also objected to the short schedule – which includes a 10-minute presentation by a representative from Ethics, 20 minutes by the Mayor’s Office, 20 by Mirkarimi’s side, a five-minute mayoral rebuttal, and unlimited questions from supervisors and public comment – saying that it belies the serious and unprecedented decision to override voters and remove an elected official.

“This proceeding is extraordinary in its nature,” he said, objecting to the board adopting essentially the same procedures it uses for appealing routine Planning Commission project approvals.

But St. Croix said he welcomed the board’s shortening of his agency’s presentation, saying its recommendation and the record it compiled should speak for itself. “I don’t even know what the commission would present,” he said. “To try to sell it is not seemly.”

Antonini, quarterback for development interests, wins the game

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If there was any doubt about the loyalty to developers of Planning Commissioner Michael Antonini, he put them to rest yesterday shortly after finally winning reappointment to a fourth, four-year on a 6-5 vote by the Board of Supervisors. Afterward, in comments to Examiner reporter Joshua Sabatini, Antonini likened his role on the commission to that of a successful football team’s quarterback.

“You want to knock out the quarterback for the other team,” Antonini said. “It’s a tribute in a way – backhanded.”

The five supervisors who opposed Antonini – Sups. David Chiu, John Avalos, David Campos, Eric Mar, and Jane Kim, the board’s most progressive members – seemed to understand that Antonini saw himself playing for the developers and big corporations that see San Francisco mostly as a place to make money, even at the expense of eastern neighborhoods and the city’s long-term interests.

The voting record of this Republican dentist – an elected member of the San Francisco Republican County Central Committee who advocates for right-wing causes (such as crackdowns on the homeless) and candidates – makes clear which team Antonini plays for, and it isn’t the same team as the vast majority of people in San Francisco, where Republicans constitute less than 10 percent of the electorate.

It says a great deal about the corporatist politics of Mayor Ed Lee for re-appointing him, as well as the politics and integrity of the swing votes, Sups. Malia Cohen and Christina Olague, the Lee appointee now running for election in District 5, one of the city’s most progressive districts.

Both supervisors mouthed meaningless platitudes and justifications for their votes, but in reinstating the developers’ quarterback just as the progressives were about to remove him from the game, one wonders what team they’re playing for – or whether they even understand the dimensions of the game they have unexpectedly found themselves playing.

But Antonini clearly understands. And despite the ridiculous statements that Cohen and Olague made about holding him “accountable,” Antonini now has four more years to continue leading a team that is rapidly gentrifying San Francisco, making it more inviting to the Google-busers and Twitterati and their landlords, but less so for the average teacher, clerk, and social worker.

Two of SF’s most venerable cannabis dispensaries get shut down

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Sadness, anger, and confusion hung thick in the fragrant, smoky air of two of San Francisco’s oldest and most prominent medical marijuana dispensaries – HopeNet in SoMa and Vapor Room in Lower Haight – during their last day in business yesterday, the latest victims of an aggressive federal government crackdown on the industry.

Throughout the day, vendors, patients, neighbors, and well-wishers stopped in to say goodbye and commiserate over a trend that just doesn’t make sense to them, or to the local politicians and city officials that have spent years setting up a regulatory structure that had legitimized the cannabis industry, which thrived as the rest of the economy suffered through the recent recession.

“I’ve always treated this as if it were just a nice coffee house. I’m not an outlaw,” said Martin Olive, whose Vapor Room was a friendly community gathering place and active member of the local business community that gave away free bags of vaporized marijuana to low-income patients on a daily basis. “I almost forgot I was breaking federal law. It was so normal, so legitimate.”

Despite previous promises to respect state laws legalizing medical marijuana, President Barack Obama and federal agencies under his control did a sudden about-face last year, with the Drug Enforcement Agency threatening landlords with property seizure, the Justice Department threatening prison sentences, and the Internal Revenue Service doing audits and refusing to allow routine business expenses.

The result has been the forced closure of eight of San Francisco’s 24 licensed dispensaries in the last seven months, with more closures likely in the coming months. Almost all of the remaining clubs have been forced to deal only in cash after the feds threatened their bankers and credit card companies. The industry that grows and sells California’s biggest cash crop is essentially being driven back underground, hurting patients and the sometimes gritty neighborhoods that dispensaries had improved with security systems and a flow of customers that put more eyes on the streets and cash in the pockets of nearby stores and restaurants.

“The people that live here are afraid the neighborhood is going to come back in here. We took care of the entire block. Before us, it was all dealers, so there’s a safety issue,” HopeNet founder Cathy Smith told me as the once-welcoming club on 9th Street near Howard was reduced to bare walls, noting that the owner of the Starbucks on the corner told her he expects his business to drop by 15 percent.

Olive shared the concerns expressed at HopeNet, which he considers “a sister dispensary,” one that also had a generous compassion program for giving cannabis to low-income patients and offering other free services like yoga.

“I’m curious to see what this neighborhood looks like in six months. I know what it was like six months before we got here,” Olive said of his club’s opening in 2004.

But for now, it’s over. Vapor Room continued to do business for most of the day yesterday, but HopeNet was already stripped bare and essentially shut down, and by 3:30pm they removed the cash register and their pot stock. “The signs are down, we’re no longer a pot club, break out the beer,” announced Smith’s son, Bill, a member of the cooperative, referring to one of the many tight restrictions of what the city allowed in clubs. “I’m the only one making light of things today, as a coping mechanism. I laugh so we don’t cry.”

Like the patients, vendors, and local officials we spoke to – who you’ll hear from in an upcoming Guardian cover story looking the end of medical marijuana’s golden age – Olive and Smith are grappling with a federal crackdown they say has myriad downsides and no benefits to anyone but federal agencies that profit from drug-related seizures and the criminal syndicates that now have less competition.

Both Olive and Smith say they voted for Obama in 2008, they believed his statements that he wouldn’t go after businesses that complied with state and local law, and now they feel betrayed.

“I feel fucked by it, betrayed is too easy a word,” Howard said.

“It’s complicated emotions that I’m feeling – let down, confused – at the end of the day, I don’t understand why this is happening,” Olive said. “It’s a community tragedy, it really is.”

Like MediThrive and other recently shuttered clubs, both Vapor Room and HopeNet will still be operating as delivery-only services, but the future seems less certain now that their direct, brick-and-mortar connection to their community has been severed.

They urge those concerned about the crackdown to contact their political representatives, and to turn out today (Wed/1) at 4pm for a funeral march that starts at Haight and Steiner streets near the now-shuttered Vapor Room and goes to the Federal Building on Golden Gate Avenue, where there will be a rally and speeches starting at 5pm.

Compromise measures

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news@sfbg.com

San Franciscans are poised to vote this November on two important, complicated, and interdependent ballot measures — one a sweeping overhaul of the city’s business tax, the other creating an Affordable Housing Trust Fund that relies on the first measure’s steep increase in business license fees — that were the products of intense backroom negotiations over the last six months.

Mayor Ed Lee and his business community allies sought a revenue-neutral business tax reform measure that might have had to compete against an alternative proposal developed by Sup. John Avalos and his labor and progressive allies, who sought around $40 million in new revenue, although both sides wanted to avoid that fight and find a compromise measure.

Meanwhile, Mayor Lee was having trouble securing business community support for the housing trust fund that he pledged to create during his inaugural address in City Hall in January. So he modified his business tax proposal to bring in $13 million that would be dedicated to the Affordable Housing Trust Fund, but that didn’t satisfy the Avalos camp, who insisted the city needed more general revenue to offset cuts to city services and help with the city’s structural budget deficit.

Less than a day before the competing business reform measures came before the Board of Supervisors on July 24, a compromise was finally struck that would bring $28.5 million a year, with $13 million of that set aside for the affordable housing fund, tying the fate of the two measures together and creating a kumbaya moment at City Hall that was reminiscent of last year’s successful pension reform deal between labor and the business community.

But there was one voice raised at that July 24 meeting, that of Sup. David Campos, who asked questions and expressed concerns over whether this deal will adequately address the “crisis” faced by the working class in a city that will continue to gentrify even if both of these measures pass. Affordable housing construction still won’t meet the long-term needs outlined in the city’s Housing Element that indicates 60 percent of housing construction would need public subsidies to be affordable to current city residents.

It’s also worth asking why a business tax reform measure that doubles the tax base — just 8.4 percent of businesses in San Francisco now pay the payroll tax, whereas 16.4 percent would pay the gross receipts tax that replaces it — doesn’t increase its current funding level of $410 million (the $28.5 million comes from increased business license fees). Some industries — most notably the technology and restaurant industries that have strongly supported Mayor Lee’s political ambitions — could receive substantial tax cuts.

Politics is about compromise, and Avalos tells us that in the current political climate, these measures are the best that we can hope for and worthy of progressive support. And that may be true, but it also indicates that San Francisco will continue to be more welcoming to businesses than the working class residents struggling to remain here.

 

SOARING HOUSING COSTS

As Mayor Lee acknowledged during his inaugural speech, the boom times in the technology industry has also been driving up commercial and residential rents, he sought to create “housing for the 100 percent.”

The median rent in San Francisco has been steadily rising, jumping again in June an astounding 12.9 percent over June of last year, according to real estate monitor RealFacts, leaving renters shelling out on average an extra $350 a month to landlords.

Driven by a booming tech industry and a lag in new housing, the average San Francisco apartment now rents for $2,734. That’s an annual increase of $4,000 per unit over last year, in a city that saw the highest jumps in rent nationally in the first quarter of 2012. Even prices for the average studio apartment have edged up to $1,800 a month.

The affordability gap between housing and wages in the city is stark. Somebody spending a quarter of their income on rent would need to be making $85,000 a year just to keep up with the average studio. With a mean wage of $64,820 in the San Francisco metro area, even middle class San Franciscans have a difficult time affording a modest apartment. For the city’s lowest paid workers, even earning the country’s highest minimum wage of $10.25 an hour, even devoting every earned dollar to rent still wouldn’t pay for the average small studio apartment.

For those looking to buy a home in the city, it can be a huge hurdle to put aside a down payment while keeping up with the city’s high rents. Almost 90 percent of San Franciscans cannot afford a market rate home in the city. The average San Francisco home price was up 1.9 percent in June over May, climbing to $713,500, or a leap of $50,000 per unit over last year’s prices.

In the 2010 census, before the recent boom in the local real estate market, San Francisco already ranked third in the nation for worst ratio between income and home ownership prices, behind Honolulu and Santa Cruz.

But as the city leadership grapples to mitigate the tech boom’s effects, the lingering recession and conservative opposition to new taxes have gutted state and federal funds for affordable housing. Capped off last December by the California Legislature’s decision to dissolve the State Redevelopment Agency, a major source of money for creating affordable housing, San Francisco has seen a drop of $56 million in annual affordable housing funds since 2007.

Trying to address dwindling funding for affordable housing, the Board of Supervisors voted 8-2 on July 24 to place the Affordable Housing Trust Fund measure on the fall ballot. Only the most conservative supervisors, Sups. Sean Elsbernd and Carmen Chu, opposed the proposal. Sup. Mark Farrell, who has signaled his support for the measure, was absent.

“Creating a permanent source of revenue to fund the production of housing in San Francisco will ensure that San Francisco is a viable place to live and work for everyone, at every level of the economic spectrum. I applaud the Board of Supervisors,” Mayor Lee said in response.

At the heart of the program, the city hopes to create 9,000 new units of affordable housing over 30 years. The measure would set aside money to help stabilize the ongoing foreclosure crisis and replenish the funds of a down payment assistance program for those earning 80 to 120 percent of the median income.

To do so, the city anticipates spending $1.2 billion over the 30-year lifespan of the program, with a $20 million annual contribution the first year increasing $2.5 million annually in subsequent years. It would fold some existing funding in with new revenue sources, including $13 million yearly from the business tax reform measure. Language in the housing fund measure would allow Mayor Lee to veto it is the business tax reform measure fails.

The board was forced to delay consideration of the business tax measure until July 31 because of changes in the freshly merged measures. That meeting was after Guardian press time, although with nine co-sponsors on the board, its passage seemed assured even before the Budget and Legislative Analysts Office had not yet assessed its impacts, as Campos requested on July 24.

“I do believe that we have to ask certain questions when a proposal of this magnitude comes forward,” Campos said at the hearing, later adding, “When you have a proposal of this magnitude, you’re not going to be able to adjust it for some time, so you want it to be right.”

The report that Campos requested, which came out in the late afternoon before the next day’s hearing, agreed that it would stabilize business tax revenue, but it raised concerns that some small businesses exempt from the payroll tax would pay more under the proposal and that it would create big winners and losers compared to the current system.

For example, it calculated that between the gross receipts tax and business license fee, a sample full service restaurant would pay 69 percent less taxes and a supermarket 33 percent less taxes, while a commercial real estate leasing firm would pay 46.7 percent more tax and a large engineering firm would see its business tax bills more than double.

Board President David Chiu, who has co-sponsored the business tax reform measure with Mayor Lee since its inception, agreed that it is a “once in a decade reform,” calling it a “compromise that reflects the best sense of that word.” And that view, that this is the best compromise city residents can expect, seems to be shared by leaders of various stripes.

 

BACKING THE COMPROMISE

The business community and fiscally conservative politicians have long called for the replacement of the city payroll tax — which they deride as a “job killer” because it uses labor costs to gauge the size of company’s size and ability to pay taxes — with a gross receipts tax that uses a different gauge. But the devil has been in the details.

Chiu praised the “dozens and dozens and dozens of companies that have worked with us to fine-tune this measure,” and press reports indicate that representatives of major corporations and economic sectors have all spent hours in the closed door meetings shaping the complicated formulas for how they will be taxed, which vary by industry.

When the Guardian made a Sunshine Ordinance request to the Mayor’s Office for a list of all the business representatives that have been involved in the meetings, its spokespersons said no such list exists. They have also asked for a time extension in our request to review all documents associated with the deliberations, delaying the review until next week at the earliest, after the board approves the measure.

But the business community seems to be on board, even though some economic sectors — including real estate firms and big construction companies — are expected to face tax hikes.

“The general reaction has been neutral to favorable, and I expect we’ll be supportive,” Jim Lazarus, the vice president of public policy for the San Francisco Chamber of Commerce, who participated in crafting the proposal but who said the Chamber won’t have an official position until it votes later this week.

Lazarus noted the precipitous rise in annual business license fees — the top rate for the largest companies would go from just $500 now to $35,000 under the proposal, going up even more in the future as the Consumer Price Index rises — “but some of it will be offset by a drop in the payroll tax,” Lazarus said.

He also admitted that the new tax system will be “hugely complicated” compared to the payroll tax, with complex formulas that differ by sector and where economic transactions take place. But he said the Chamber has long supported the switch and he was happy to see a compromise.

“I’m assuming it will pass. I don’t believe there will be any major organized opposition to the measure,” Lazarus said.

Labor and progressive leaders also say the measure — which exempts small businesses with less than $1 million in revenue and has a steeply progressive business license fee scale — is a good proposal worth supporting, even if they didn’t get everything they wanted.

“We fared pretty well, the royal ‘we,’ with the mayor starting off from the position that he wanted a revenue-neutral proposition,” Chris Daly, who unsuccessfully championed affordable housing ballot measures as a supervisor before leaving office and becoming the political director for SEIU Local 1021, the largest union of city employees.

Both sides say they gave considerable ground to reach the compromise.

“Did we envision $28.5 million in new revenue? No,” said Lazarus, who had insisted from the beginning that the tax measure be revenue-neutral. “But we also didn’t envision the Affordable Housing Trust Fund.”

Daly and Avalos also said the measures need to be considered in the context of current political and economic realities.

“We were never going to be able to pass — or even to craft — a measure to meet all of the unmet needs in San Francisco,” Daly said. “Given the current political climate, we did very well.”

“If we had a different mayor who was more interested in serving directly the working class of the city, rather than supporting a business class that he hopes will serve all the people, the result might have been different,” Avalos said. “But what’s significant is we have a tax measure that really is progressive.”

Given that “we have an economic system that is based on profits and not human needs,” Avalos said, “This is a good step, better that we’ve had in decades.”

 

THE HOUSING CRISIS

The tax and housing measures certainly do address progressive priorities — bringing in more revenue and helping create affordable housing — even if some progressives express concerns that conditions in San Francisco could get worse for their vulnerable, working class constituents.

“I don’t know if the proposal before us is aggressive enough in terms of dealing with a crisis,” Campos told his colleagues on July 24 as they discussed the housing measure, later adding, “As good as this is, we are truly facing a crisis and a crisis requires a level of response that I unfortunately don’t think we are providing at this point.”

Not wanting to let “the perfect be the enemy of the good,” Campos said he still wanted to be able to support both measures, urging the board to have a more detailed discussion of their impacts.

“I wish this went further and created even more funding for critically needed affordable housing,” Sup. Eric Mar said before joining Campos in voting for the proposal anyway. “I think they need to build 60 percent of those units as below market rate otherwise we face more working families leaving the city, and the city becoming less diverse.”

Yet affordable housing advocates are desperate for something to replace the $56 million annual loss in affordable housing the city has faced in recent years, creating an immediate need for action and potentially allowing Lee to drive a wedge between the affordable housing advocates and labor if the latter held out for a better deal.

Many have heralded the mayor’s process in bringing together developers, housing advocates, and civic leaders to build a broad political consensus for the measure, particularly given the three affordable housing measures crafted by progressives over the last 10 years were all defeated by voters.

“One of the goals of any measure like this is for it to gain broad enough support to actually pass,” Sup. Scott Wiener said at a Rules Committee hearing on the measure.

In the measure’s grand bargain, developers receive a reduction in the percentage of on-site affordable housing units they are required to build, from 15 percent of units to 12 percent. The city will also buy some new housing units in large projects, paying market rate and then holding them as affordable housing — the buying power of which could be a boon to developers while creating affordable housing units.

At its root, the measure shifts some of the burden of funding affordable housing from developers to a broader tax base and locks in that agreement for 30 years, which could also spur market rate housing development in the process.

A late addition to the proposal by Farrell would create funding to help emergency workers with household earnings up to 150 percent of average median income buy homes in the city, citing a need to have these workers close at hand in the event of an earthquake or other emergency.

While some progressives have grumbled about the givebacks to developers and the high percentage of money going to homebuyer assistance in a city where almost two-thirds of residents rent, affordable housing advocates are pleased with the proposal.

“Did we gain out of this local package? Yes, we got 30 years of local funding. We came out net ahead in an environment where cities are crashing. We essentially caught ourselves way early from the end of redevelopment funds,” said Peter Cohen, executive director of the San Francisco Council of Community Housing Organizations.

Without it, Cohen says many affordable housing projects in the existing pipeline would be lost. “This last year was a bumpy year, and we will not be back to the same operation level for a number of years,” Cohen said. “There was a dip and we are coming out of that dip. It will take us a while to get back up to speed.”

The progressive side was also able to eliminate some of the more controversial items in the original proposal, including provisions that would expand the number of annual condo conversions allowed by the city and encourage rental properties to be converted into tenancies-in-common.

With ballot measures notoriously hard to amend, the Affordable Housing Trust Fund measure is a broad outline with many of the details of how the fund would be administered yet to be filled in. If passed, it will be up to Olson Lee, head of the Mayors Office on Housing and former local head of the demised redevelopment agency, to fill in the details, folding what was essential two partnered affordable housing agencies into a single local unit.

But even the most progressive members of the affordable housing community said there was no other alternative to addressing affordable housing in the wings — which is indeed a crisis now that redevelopment funds are gone — making this measure essential.

As Sara Shortt of the Housing Rights Committee of San Francisco told the Rules Committee, “We lost a very important funding mechanism. We have to replace it. We have no choice.”

Why should a Republican dentist decide what gets built in San Francisco?

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The Board of Supervisors is almost evenly divided on confirming Mayor Ed Lee’s appointment of Republican dentist Michael Antonini to his fourth four-year term on the city’s powerful Planning Commission. After delaying its decision at each of its last two board meetings, the board is expected to finally decide this Tuesday.

Sup. Malia Cohen appears to be the swing vote between the progressive-to-neoliberal bloc of supervisors that would rather see new blood that is more reflective of San Francisco’s values and priorities, and the board’s moderate-to-conservative bloc that wants to keep Antonini there as a sure vote for whatever developers want (a bloc that strangely includes progressive-turned-mayoral-shill Sup. Christina Olague, a former planning commissioner who said during the July 17 discussion that she doesn’t agree with Antonini’s politics and that more diversity was needed on the commission, but that she’s voting for him anyway while offering this hollow threat: “This may be the last time I’ll support this kind of move that doesn’t support a diverse body.”)

Sup. Sean Elsbernd, who led the charge for Antonini, fairly effectively picked apart some of the vague and misleading “diversity” arguments made by some supervisors who oppose the nomination, a discussion that Examiner columnist Melissa Griffin dramatized in yesterday’s paper. And everyone praised Antonini as a hard worker.

But almost the entire discussion skipped over what should be the main point: Why the hell is San Francisco even considering appointing a Republican dentist with no particular land use expertise to a fourth term on the Planning Commission?!?! Shouldn’t someone else – preferably not a rubber stamp for developers – be given a chance to serve the city? And why isn’t Mayor Lee – whose main political benefactor and economic adviser, venture capitalist Ron Conway, is also a longtime Republican – paying a political price for this ridiculous appointment?

While supportive supervisors praised Antonini as thoughtful and fair, I can’t gauge that for myself because this supposed public servant hasn’t returned my phone calls. But I’m not sure it would have mattered because his voting record shows he is a consistent vote for developers and their interests, as even Griffin acknowledged in an otherwise supportive column.

Board President David Chiu came the closest to telling it like it is when he said, “Every person who has reached out to me from the northeast neighborhoods has asked me to oppose this nominee.” And for good reasons: Antonini is a right-winger who votes against neighborhood interests every single time. Not just neighborhood interests, but city interests as well, as shown by the commission’s approval earlier this year of a CPMC project that was found to have fatal flaws that were then exposed by supervisors.

Elsbernd argued that the board should give deference to the appointing authority, noting that he’s often voted for nominees whose politics he doesn’t agree with, including Olague. And there certainly is some value to have different perspectives on appointed bodies. But when we grant a Republican dentist tenure in shaping what this embattled city will look like for generations, and pretend that his ideology is less important than his work ethic, we make a mockery of the political system that is supposed to reflect the values and interests of city residents.

Two calls to investigate SF restaurant surcharges as consumer fraud

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The surcharges that many San Francisco restaurants charge their customers – ostensibly to help cover their employee health care obligations, although in practice it has often just padded their profits – should be investigated by the District Attorney’s Office as consumer fraud, according to Sup. David Campos and San Francisco’s Civil Grand Jury, which recently issued a scathing report scrutinizing the practice.

Campos raised the issue during Tuesday’s Board of Supervisors meeting, calling for a criminal investigation and City Hall hearing. He even questioned whether businesses that have been so hostile to city’s Health Care Security Ordinance – the landmark 2008 measure that created the Health San Francisco universal care program and required businesses to help pay for their employees’ health coverage – should benefit from the tax cuts it would receive under a business tax reform ballot measure the board also considered that day.

“In the restaurant industry, we have an issue that remains unresolved,” Campos said during the business tax debate, after earlier in the meeting calling for the DA “to begin an investigation for fraud against the people of San Francisco by businesses that use this surcharge.”

DA’s Office spokesperson Stephanie Ong Stillman confirmed that the office is looking at the issue: “The Grand Jury report was just released and we are in the process of evaluating the results.”

Mayor Ed Lee last year vetoed legislation by Campos that would have banned the practice and prevented businesses from simply pocketing money from Employer Health Reimbursement Accounts they create to comply with the mandate (federal law bars the city from dictating how businesses cover employee health care) at the end of each year. Lee later signed a watered down version sponsored by Board President David Chiu requiring employers to keep the money in the fund for two years, to let their employees know about the fund on a quarterly basis, and to dedicate surcharge revenue to employee health care.

Rob Black, executive director of Golden Gate Restaurant Association – which unsuccessfully sued the city over the employer mandate and appealed the case all the way to the US Supreme Court – criticized Campos and the Grand Jury, saying they were relying on data from last year and that the situation has improved since Chiu’s legislation went into effect (Chiu told us data collection from his legislation will allow the city to better assess what’s happening).

“Supervisor Campos know this information is based on data that was prior to the new ordinance,” Black told us, acknowledging that many restaurants profited from the surcharges “but that was before the law was changed.” Campos responded by saying the grand jury concluded that the Chiu legislation didn’t go far enough the prevent the abuses, which are tough to detect because they are based on self reporting by the businesses.

The Grand Jury looked at 38 restaurants, of which 25 used the surcharges and 22 use the reimbursement accounts rather than either health insurance or Healthy San Francisco, which health care experts uniformly say are better options for employees. It analyzed data submitted to the city by these 22 restaurants with a total of 1,562 employees, finding that of the more than $2 million earmarked for the health reimbursement funds, just $123,612 was paid to employees and $1.9 million was kept by the employers.

Black said the quarterly noticing requirement in the Chiu legislation is already helping with the low reimbursement rate: “My hope is, and my belief is, we’re going to see significant…improvements in utilization rates in people taking advantage of their benefits, and that’s great.”

The grand jury also looked specifically at the health care surcharges collected by 18 restaurants with almost $64 million in gross revenue. Despite collecting almost $2.2 million in the surcharges it placed on customers bills, they reimbursed their employees for $1.16 million medical expenses and kept the more than $1 million that remained as profits.

Black criticized the grand jury for selectively picking the restaurants in its study and for targetting private sector businesses rather than the public agencies it traditionally investigates. “They’re outside of what the government charter calls for,” he said.

But Mark Busse, the chair of the Grand Jury Health Committee that led the study, told the Guardian that while it’s unusual to look at the private sector, there was a legitimate public policy interest here and its work was approved and overseen by Presiding Judge Katherine Feinstein (who happens to be the daughter of US Sen. Dianne Feinstein, San Francisco’s former mayor).

He also denies hand-picking the restaurants, saying he asked jurors to simply keep the receipts from all restaurants they frequented. While that may not be representative of all restaurants, he said it was a large enough sample to draw some conclusions and that he was more surprised than anyone at their findings.

“I thought our results would be totally different. I didn’t think they would be that abusive, I really didn’t. I thought we would find we have some outstanding restaurants and entrepreneurs,” Busse said, adding that he was alarmed by their actual findings. “It turned our stomachs. It makes us sick. It is not a level playing field. There are legitimate businesses that accept the spirit of the law and are taking care of their employees, but a lot of them aren’t.”

Given that these employees handle the food of city residents, he said that they should get the health care to which they’re entitled. As Busse told us, “The intention of the jury was to make sure the workers are getting health care and the customers aren’t getting deceived.”

7/27 Update: We heard back from the Mayor’s Office, whose Chief Deputy Communications Director Francis Tsang wrote: “Mayor Lee is a strong supporter of the Healthcare Security Ordinance. The Civil Grand Jury surveyed only 38 restaurants and its report restates facts we already know – some businesses add a surcharge and in the past, it was not well regulated.  Working with Supervisors, Mayor Lee strengthened practices effective January 2, 2012 to ensure employees could make better use of the program.  We will know the results in 2013, when we collect and report on 2012 data informed by the new regulations.”

Chow withdraws from D11 race after residency questioned

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Sup. John Avalos appears to be cruising to an uncontested reelection now that Leon Chow, an organizer and executive with SEIU-UHW, has been chased out of the District 11 supervisorial race by journalist Chris Roberts, the SF Appeal, and their reporting on what appears to be Chow’s false claims that he lived in the district.

Chow had been banking on support from his union and the district’s substantial Chinese immigrant population, which he had been helping rally against new medical cannabis dispensaries that the city had approved for the Outer Mission/Excelsior area, presenting Avalos with a challenge that needed to be taken seriously.

But Roberts dropped a journalistic bomb on Chow’s ambitions a couple weeks ago when he unearthed documents indicating that Chow actually lived in Walnut Creek and that he was registered to vote at Chinatown business address – both in violation of election law – doing the solid reporting that journalists failed to do when Ed Jew was elected to the District 4 seat without living there. It wasn’t until Jew was caught in an FBI bribery sting that journalists dug into the background of a politician who had flown into office largely under the press’s radar.

As the Appeal reported this afternoon, Chow sent this email to the Elections Department: “Since I have not filed for Candidacy, I am notifying your department simply with this email, please let me know if there is any other process I will need to do. Please kindly remove my names [sic] from the Potential Local Candidate List in the department web site.”

Although it made no mention of Roberts’ story – which hadn’t gotten much journalistic traction yet, although that was bound to happen as the campaign wore on – the connection seems obvious. So, congratulations to Roberts … and to Avalos.

Perspective and proportion

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steve@sfbg.com

In the eyes of his critics, suspended Sheriff Ross Mirkarimi may never be able to recover from the portrayal by prosecutors and Mayor Ed Lee that he abused his wife, intimidated her with threats to use his power to take custody of their young son if they divorced, and used her and his campaign manager to try to dissuade witnesses and thwart a police investigation.

The tearful video of his wife, Venezuelan actress Eliana Lopez, displaying the bruise on her arm, and the fact that Mirkarimi pleaded guilty to a misdemeanor false-imprisonment charge in connection with the incident are all these critics need to condemn him. Indeed, it was all that Lee relied on when he suspended Mirkarimi without pay and launched unprecedented official misconduct proceedings to remove him from office.

But now that the Ethics Commission has gotten through the substance of its inquiry — and past the tedious work of creating from scratch systems and standards for gathering evidence and evaluating whether it warrants an elected official’s removal by the mayor — the testimony has told a very different story of what really happened.

Accusations of witness dissuasion (which had been one of three original criminal charges Mirkarimi faced before agreeing to a lesser plea deal) and abusing his official position haven’t been supported by any direct evidence or testimony, and as the hearings wore on, Deputy City Attorneys Peter Keith and Sherri Kaiser were looking increasingly vindictive as they fruitlessly pursued those angles with witnesses who seemed credible.

There is also no direct evidence that the abuse was anything more than a moment of frustration and bad judgment at noontime on Dec. 31, when Mirkarimi grabbed Lopez’s arm as she tried to walk away from their heated argument about divorce child custody, and she yanked it away, eight days before his swearing in as sheriff.

Whether that incident and its aftermath meets the City Charter’s broad and untested definition of official misconduct — including “conduct that falls below the standard of decency, good faith and right action impliedly required of all public officials” — will be up to the interpretation of the Ethics Commission, which has now accepted all the evidence that it has deemed relevant and credible. All that remains is the fight over its “finding of fact” at an Aug. 16 hearing and its subsequent recommendation to the Board of Supervisors, which could begin considering the matter in September.

There won’t be an inquiry into whether Mayor Lee committed perjury on June 29, as outside witnesses said he did on two separate issues. The commission July 19 rejected the argument by Mirkarimi’s attorneys that Lee’s alleged lies under oath would cast doubt over his reasons for launching these unprecedented proceedings and the discretionary judgment he exercised. Commissioners decided that was a tangential issue.

In the final hour of the commission’s laborious work in whittling down the voluminous evidence that the city has presented in this case — which both sides and the commission openly acknowledge will likely be considered by the courts as well as the board — it also made deep cuts into the written testimony of attorney Nancy Lemon, a domestic violence expert who drew damning conclusions about Mirkarimi based on how “batterers” typically behave.

That’s been a big part of the city’s case, reducing Mirkarimi down to a two-dimensional batterer whose every action can be predicted by that distinction, from the manner in which he relinquished his weapons to police to the reasons why Lopez has resisted cooperating with efforts to charge her husband with crimes and remove him from office.

Lemon’s testimony was based almost solely on second-hand descriptions of life in the Mirkarimi household in a 22-page written declaration by neighbor Ivory Madison, who was also the only witness that Lee said he spoke to before removing Mirkarimi from office. But most of Madison’s incredible and fantastical narrative — which painted Mirkarimi as a monster who repeatedly abused Lopez and their son and controlled every aspect of their domestic life, right down to what and whether they ate — had already been discredited and disallowed by skeptical commissioners in June.

“I was disappointed by the content of Ivory Madison’s declaration. A first-year lawyer should know that much of it is inadmissible and it should not have been given to us,” Commissioner Paul Renne told Keith in June. Renne called the declaration “clearly hearsay, clearly having the intention of poisoning the well of this hearing.”

Keith apologized and offered little resistance to much of the declaration’s removal, but the city has nonetheless continued to rely on the second-hand accounts of Madison and another neighbor, Callie Williams, in its descriptions of Mirkarimi’s conduct and the questioning of witnesses.

But that hearsay evidence and speculation was countered on July 18 and 19 with the extended cross examination of two key witnesses in the case: Lopez and Mirkarimi campaign manager Linnette Peralta Haynes, a woman with domestic violence training who Lopez reached out to on that pivotal day of Jan. 4 when Madison called the police. Each woman spent more than three grueling hours each on the stand, questioned by city attorneys and commissioners — and they painted a very different portrait of the events than Lee and Madison had.

As for Madison — having had most of her testimony stricken from the record, and with Lopez testifying about Madison’s sudden zeal for going after Mirkarimi and involving his political opponents in that process — Mirkarimi’s team decided not to call her to the stand for live cross-examination. Attorney Shepherd Kopp told reporters, “I think the neighbor’s testimony is suspect at best.”

The go-between

Haynes was central to the city’s allegation that Mirkarimi dissuaded witnesses and sought to thwart a police investigation. Phone and electronic records revealed that she communicated with both Lopez and Mirkarimi many times on Jan. 4, the day Mirkarimi learned that his wife had been confiding with neighbors about the Dec. 31 incident and that Madison had broken that confidence and called the police.

The city’s apparent theory was that Haynes acted as Mirkarimi’s agent in trying to cover up the incident and do damage control, including coaching Lopez on what to say to Madison and Williams.

But the city has never had any evidence to support its theory, and this was its first chance to question Haynes, who had been at the end of a high-risk pregnancy and resisted cooperating with the investigation.

Yet despite Kaiser and commissioners grilling Haynes for more than three hours — twice as long as she had told the commission that she would need — no smoking gun emerged. Haynes seemed calm and consistent as she described giving Lopez emotional support and probing to ensure that she wasn’t in danger. Kaiser fumbled through technical difficulties and maintained an accusatory and belittling tone even as the answers she was receiving seemed to destroy her line of questioning.

“I think the house of cards that mayor has been trying to establish about witness dissuasion was demolished by Linnette Peralta Haynes, who was absolutely credible,” Mirkarimi attorney Shepherd Kopp told reporters after the hearing.

Haynes has a background in domestic violence, undergoing a 40-hour certification training in the mid-90s when she went to work for a domestic violence center in San Mateo for almost two years, then later helping develop and teach a domestic violence curriculum for the jail in San Francisco.

She’s familiar with the Power and Control Wheel — the basis for many of Lemon’s conclusions — which indicates how physical abuse can be connected to other forms of abuse, such as emotional, verbal, and sexual abuse. It was with this background and training that Haynes questioned Lopez about whether she was in danger and being abused when she got an unexpected call on the morning of Jan. 4.

“She let me know she had an argument with Ross and wanted to talk to me,” Haynes said, later answering another question by saying, “She told me she was really worried about custody issues and she was talking to a friend who was an attorney.”

That friend turned out to be Madison, who Lopez maintains had represented herself as an attorney who would keep their conversation and the video they made of her injuries confidential, to be used only in the event of a custody battle. The city has sought to cast doubt on that claim — which the court rejected in Mirkarimi’s criminal case when it admitted the video as evidence — implying that Madison was simply a concerned friend and the attorney argument was developed weeks later.

Haynes said she asked Lopez whether there had been any prior incidents of physical abuse, whether Lopez felt unsafe, and whether she had been subjected to other forms of abuse — defining each form for Lopez — and that she was told “no” to each question.

“I asked if she thought she was in danger and she said no,” Haynes said.

Later on Jan. 4, Lopez told Haynes she had made the video: “She told me a friend had helped me do a video just in case I needed it for custody issues…She did tell me that she really wanted to work on her marriage, that she wanted to make to make it work, but that just in case she wanted to make sure she got custody of Theo.”

Lopez later testified that one reason she sought out Haynes was because Madison had suddenly become aggressive in trying to convince her that she was a domestic violence victim and the incident needed to be reported to the police, and Lopez wanted to get the perspective of someone with a background in domestic violence.

“I said, I have a person telling me this, I want your opinion about it,” Lopez testified.

Around 12:30pm that day, when Madison informed Lopez that she had called the police and they were on the way, she frantically called Haynes from Madison’s house and suddenly put the two women on the phone together, which Madison and the city have characterized as a witness dissuasion effort.

Haynes said she was confused when Lopez suddenly handed the phone to Madison: “She said, ‘help me, help me, help me,’ and I’m on the phone wondering what’s going on.”

“[Madison] told me, ‘I’ve been talking to Eliana for several days and I just called the police,’” Haynes said.

Haynes said she asked Madison if she had called any domestic violence agencies or if she just called the police “and she got very agitated” — adopting a defensive tone of voice — and that reaction seemed “fishy” to Haynes.

Asked whether she tried to dissuade Madison from talking to the police, she responded, “I told her she should maybe talk to her friend about what she wants.” She said that she could hear Lopez telling Madison, “This is not what I want, this is not what I want.”

So Haynes said she tried to extricate herself from the situation: “I told her I really think you need to get off the phone, talk to Eliana, and respect her.” And the phone conversation ended with Lopez getting back on the line and telling Haynes to call Mirkarimi to let him know what was going on.

But Mirkarimi was busy and not answering his phone, prompting Haynes to text at one point that he needed to answer ‘so I can protect you.” What did she mean by that, Kaiser asked.

“My thinking was that something sounded fishy, something wasn’t right, and they need legal help,” Haynes said.

“Your focus had been on Eliana up until then?” Kaiser asked.

“My focus has always been Eliana,” Haynes responded.

Later, asked about the nature of her repeated phone conversations with Lopez, she denied helping her strategize ways to dealing with witnesses or police. “I was just providing support for her, emotional support,” Haynes said, later adding “I wanted to be present for her.”

The victim

Lopez testified that while the grabbing incident was unacceptable and serious — which she conveyed to Mirkarimi — she didn’t consider herself to be in an abusive environment or in need of outside help, except perhaps the marriage counseling she had been seeking and which Mirkarimi finally agreed to.

“An abusive environment is when those kinds of think happen every day or every week,” she said, maintaining — in the face of repeated questioning — that this was the first and only instance of physical abuse.

“At the end of the day on Dec. 31, I told him, that cannot happen, this is wrong, we need counseling,” she said. “He realized it was wrong and he took it very seriously.”

But she said that Madison went from being a supportive friend and counselor on Jan. 1 to suddenly becoming increasingly insistent that Lopez report the incident to police in the days that followed.

“She started trying to convince me to call the police in that email,” Lopez said, answering a question about a Jan. 2 message from Madison, “but that wasn’t our conversation on Jan. 1.”

Lopez said Madison’s approach got more aggressive. “She said, ‘screw him, I have a lot of friends willing to help you,’” Lopez said, noting that Madison offered her the vacant homes of rich friends and offered to bring in journalist Phil Bronstein, DA George Gascon, Attorney General Kamala Harris, and Lieutenant Governor Gavin Newsom to help her.

“It looked to me suspicious…She was calling Ross’ political enemies,” Lopez said.

When Lopez finally made it clear she didn’t want police involvement, Madison called the police.

“I didn’t expect that my lawyer could call the police on her own. I thought that was my decision,” Lopez said.

Keith tried to tie Lopez’s custody concerns to his status as sheriff, driving at that point with many questions. But Lopez said her concern was that California family courts would favor Mirkarimi simply because he’s an American and she’s from a country that has bad relations with the US.

“In this country, I think he’s in a better position than me,” she said. After he again tried to make it about his official position, she said, “As a sheriff, no; as an American, yes.”

She denied the claim by the city and Madison that it was Mirkarimi who sought to improperly use his position, a key element of removing him for official misconduct. Lopez said her conclusions about Mirkarimi’s advantages in a potential custody battle were the result of conversation that happened much earlier.

“That conversation happened in March 2011. He wasn’t even thinking about running for sheriff at that point,” she said, denying that Mirkarimi ever raised his official position in their custody conversations and claiming the concerns about his power were her own. “He never said that, that was my conclusion of our conversations. He never said, ‘I am a powerful man.'”

Throughout hearings, Mirkarimi’s side has enjoyed strong shows of public support, with many of his supporters wielding signs that read, “I believe Eliana” and “I support Eliana,” both in Spanish and English.

During a recess in the July 18 hearing, Mirkarimi said he appreciated the outpouring of support: “There are scores of people showing their support who think this has gone way too far.”

 

Environmental groups call for fracking moratorium in California

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California’s biggest environmental organizations are gathering in Sacramento tomorrow (Wed/25) to call for a moratorium on the controversial practice of hydraulic fracturing – also known as fracking, in which a mixture of water and chemicals is injected at high pressure deep underground to increase production in oil and natural gas wells – until its impacts are better understood.

The occasion is the last in a series of workshops on the issue by the California Department of Conservation’s Division of Oil, Gas and Geothermal Resources, which is considering new rules on a practice that is mostly unregulated in California. Other recent legislative and administrative efforts to address fracking have been scuttled by the powerful fossil fuel industry.

Earlier this year, Sen. Fran Pavley (D-Santa Monica) discovered that state officials didn’t even know how much fracking is happening in California – while it requires state permits to drill an oil or natural gas well, fracking them doesn’t – although the industry has since estimated that more than 600 wells were fracked last year, most of them in Kern Country around Bakersfield.

But there is growing concern by environmentalists that the oil industry plans to expand its use of fracking in the Monterey shale formations that run from the Central Coast to the Central Valley, where an estimated 15 billion barrels of oil could be extracted if loosened up by fracking.

“We’re calling for the Division of Oil and Gas to slow down and not rush through these regulations,” said Andrew Grinberg, spokesperson for Clean Water Action. “We’re calling for a moratorium until we have good regulations that ensure the protection of our water, air, health, and communities.”

Other organizations joining the event – which begins at 5:30pm outside the California Environmental Protection Agency building at 1001 1st St. in Sacramento, where the DOGGR hearing will be held at 7pm – and the call for a moratorium includes the Sierra Club, Planning and Conservation League, Center for Biological Diversity, Environment California, and Food & Water Watch.

Public concerns about fracking have been on the increase in recent years, fueled by a high-profile debate in New York about ending a state moratorium against the practice and by alarming stories of groundwater contamination caused by fracking – including cases in which hydrocarbon content in drinking water is so high that people could set their faucets on fire – told in the 2010 documentary film Gasland and other media accounts.

But Tupper Hull, spokesperson for the influential trade group Western States Petroleum Association, told us fracking has been happening in California for 60 years – almost exclusively in oil wells rather than for the natural gas fields discussed in Gasland – and that it has not caused any detrimental environmental impacts, nor has its use been increasing, despite the increased public attention to the practice.

“We understand there is a lot of interest in this topic and questions about the technology,” Hull said. “We expect there will be new regulations and whatever they are, we hope they are based on facts and science and not emotional responses.”

But he said WSPA opposes the call for a moratorium because “this is a technology that aids in the production of energy.”

Yet the environmental groups say the need for energy shouldn’t cause government to abdicate its role of studying and regulating a potentially harmful practice that was given a broad federal exemption from the Clean Water Act by Congress in 2005, when it approved the Energy Policy Act that was spearheaded by then-Vice President Dick Cheney.

Environmental groups dubbed it the “Halliburton loophole” after Cheney’s former employer, which has greatly expanded the use of fracking in the US.

Burning Man challenged as La Contessa arson trial begins

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Burners aren’t too worried about an appeal that’s been filed challenging federal permits that will allow more than 60,000 people to attend Burning Man this year, but some of them are more hopeful that a trial starting next week in Reno will finally get some justice in the 2006 arson attack that destroyed the iconic art car La Contessa.

Members of San Francisco’s colorful Extra Action Marching Band and other creators of La Contessa – an authentic-looking Spanish galleon built around a bus, which appeared to sail across the Black Rock Desert – have rented a house in Reno where they’re preparing for a trial set to begin on Monday.

As we reported in a Guardian cover story shortly after the incident, Nevada landowner Mike Stewart – who had a history of conflicts with Burning Man – torched and removed La Contessa, which was being stored with permission on a property that he purchased near Gerlach, Nev., without first trying to contact its owners. The massive vehicle was too large to legally drive on the highway and its builders say they would have relocated it if they were contacted, as state law requires before destroying abandoned vehicles.

This trial has been years in coming. Plaintiffs Simon Cheffins and Greg Jones – the main designers of La Contessa – originally filed a federal lawsuit under the Visual Artists Right Act, which makes it a crime to destroy sculptures or other works of art, but a judge ruled that La Contessa didn’t qualify because it was a vehicle and therefore “applied art.”

The case is now a simple “conversion claim” in state court, alleging Stewart acted in a malicious and negligent manner, but the trial is expected to last more than two weeks as a parade of Bay Area burners involved with the project paint a picture of the long and difficult process used to create the artwork and its iconic role in Burning Man history.

Meanwhile, the appeal of Burning Man’s permits was filed last week by Christopher Brooks, who uses the Black Rock Desert for wind sailing and alleges that Burning Man is impacting the playa’s surface by creating sand dunes. Black Rock City LLC, the SF-based company that stages Burning Man, denies the charge and says the detailed environmental assessment recently approved by the Bureau of Land Management (BLM) found no significant cumulative impacts created by the event.

“We’re not too concerned about it,” BRC spokesperson Megan Miller said of the appeal. “We work hard to minimize our impact on the desert.”

Regardless, the appeal won’t have an impact of this year’s event, which begins Aug. 26. The appeal will be heard by the Interior Board of Land Appeals, which is so backlogged that it still hasn’t heard BRC’s appeal of BLM’s decision to place Burning Man on probation for exceeding last year’s population cap of 50,000 on two days, which BRC filed late last year.

As Miller said, “We’re right on track for a great year.”

 

Guardian City Editor Steven T. Jones is the author of The Tribes of Burning Man: How an Experimental City in the Desert is Shaping the New American Counterculture, which includes the story of La Contessa’s life and death.

Eliana Lopez is a victim, but of whom?

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It’s been an eventful visit to San Francisco this week for Venezuelan actress Eliana Lopez, who spent the last two evenings on the witness stand testifying before the Ethics Commission as it considers removing her husband, Sheriff Ross Mirkarimi, from office for official misconduct for grabbing her arm on Dec. 31. And then today in court, she helped persuade Judge Garrett Wong to lift the stay-away order that has barred the couple from having any contact with each other since January, allowing this battle-weary couple to finally share an much-needed embrace.

Lopez didn’t want any of this – not the police and prosecutors going after her husband and getting an order to keep her family apart, not Mayor Ed Lee suspending Mirkarimi and taking away the salary the family needed now more than ever (compounding his failure to ask Lopez what really happened by refusing to allow the city to pay for her plane fare back from Venezuela, where she’s been staying with family and looking for acting jobs, to testify in his proceedings), not the hypocritical statements of concern that she’s been victimized, made by people who she considers to be the real abusers of her and her family.

Her perspective on this whole sordid affair became crystal clear while spending more than three hours on the stand being grilled by Deputy City Attorney Peter Keith and the commissioners, where she said that she’s never been scared of Mirkarimi but that San Francisco has become a scary place to her after being betrayed and victimized by the people entrusted to help her.

“At this point, I think he’s safer in Venezuela than San Francisco,” Lopez said of her three-year-old son when Keith condescendingly asked about how he’s doing in her home country. Keith’s belittling tone toward this supposed crime victim prompted Mirkarimi attorney Shepherd Kopp to tell reporters, “The questioning of Ms. Lopez, so far, I think is just offensive.”

Clearly, some of Lopez’s decisions helped create this mess. She said on the stand that she regrets telling her neighbors Callie Williams and Ivory Madison what happened on Dec. 31, even if she believes they should have kept her confidence as they promised. And there are good legal reasons why domestic violence victims shouldn’t be able to stop the prosecutions of their abusers, who they may still be scared to offend.

But none of that excuses the complete disregard for Lopez, her perspective, and her interests that has been shown by San Francisco’s law enforcement, political, and domestic violence advocacy communities – a point that Mirkarimi supporters have repeatedly made throughout the proceedings, emphasizing that they believe and support Lopez.

“I didn’t expect that my lawyer could call the police on her own,” Lopez said of Madison, whom she said had represented herself as a legal adviser who was helping her create evidence for a child custody case if her marital problems ended in divorce. “I thought that was my decision.”

Once Madison took a more aggressive posture in urging Lopez to go the police, including “calling Ross’s political enemies” to help her bring him down, Lopez testified, “I realized that I couldn’t trust her.” But it was too late. As soon as Lopez clearly said that she didn’t want police involvement, that was when Madison called them.

“I told her, ‘you don’t have my permission to do this. I trusted you,’” Lopez said she told Madison after being told the police were on the way, sending Lopez into a panic. “When I left Ivory Madison’s house, I was so shaking I couldn’t find my car…I was feeling betrayed and I was so angry.”

Toward the end of her testimony, she said, “After Ivory Madison called the police, I felt betrayed, I felt like I had betrayed Ross.”

Anyone who knows Lopez or watched her on the stand understands that this is a strong woman who is used to taking care of herself, not a shattered domestic violence victim incapable of acting on her own behalf.

“I said we have to think, Ross, we have to do something,” Lopez testified, explaining her reaction to the police involvement and her text message to “use your power” to do something, which Mirkarimi replied to by saying there was nothing he could do at that point, despite unproven accusations that he tried to dissuade witnesses and thwart the investigation. “It was me who was pushing him.”

Even after the controversy went public and threatened his career, Lopez said it her who told him not to resign and to fight for his job. “I told him, ‘you won the election, stay strong, we can win this,” she testified.

Nobody wants to minimize domestic violence, but let’s keep some perspective on what happened here. Lee may or may not really believe that Mirkarimi “beats his wife,” as he told reporters in justifying his overreaction, but the evidence that has emerged doesn’t dispute the consistent contention by Mirkarimi and Lopez that he grabbed her arm one time, for one moment, and that was the full extend of the abuse.

“I bruise really easily,” Lopez testified. “Just Theo playing with me, I get bruised.”

Some people do. And while that doesn’t excuse what Mirkarimi did – getting physical with a partner is never okay, as he said on the stand, accepting his fate – it does indicate that perhaps Mirkarimi’s critics have lost their perspective, sense of proportion, and realization that domestic violence laws are supposed to be about helping and protecting the victim.

Does anyone even want to try to make an argument that’s what’s happened in this case?

Lopez steals the show as the city’s case against Mirkarimi falters

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This afternoon’s must-watch television is on the city’s SFGTV starting at 5pm when Venezuelan actress Eliana Lopez returns to the witness stand as the Ethics Commission considers Mayor Ed Lee’s effort to remove her husband, Sheriff Ross Mirkarimi, from office on official misconduct charges. Because after last night’s hearings, the city’s case has been severely weakened, making the standoff between a charming Lopez and flailing Deputy City Attorney Peter Keith even more pivotal.

For those with the patience and stomach to sit through these sordid and often tedious hearings – including a press gallery that has packed each hearing – there is a growing sense that the city is in trouble and getting desperate, largely because Keith and Deputy City Attorney Sherri Kaiser have been unable to support their speculative central charges, nonetheless grinding away at them, thus highlighting that lack of support.

That seemed especially true last night during Kaiser’s disastrous cross-examination of Mirkarimi campaign manager Linnette Peralta Haynes, a figure who was central to the city’s allegation that Mirkarimi dissuaded witnesses and sought to thwart a police investigation into a Dec. 31 incident in which he grabbed Lopez’s arm and left a bruise.

Haynes had communicated with Lopez and Mirkarimi via phone and text message throughout the day on Jan. 4, when neighbor and Lopez confidante Ivory Madison reported the incident to police, even briefly speaking to Madison that day when Lopez suddenly handed the phone to her. The city’s apparent theory was that Haynes acted as Mirkarimi’s agent in trying to cover up the incident and do damage control, including coaching Lopez on what to say to Madison and another neighbor, Callie Williams, as Lopez desperately tried to prevent the situation from spinning out of control.

But the city has never had any evidence to support its theory, and this was its first chance to question Haynes, who had been at the end of a high-risk pregnancy and resisted cooperating with the investigation, which seemed to only feed the city’s conviction that she had incriminating information that Kaiser would be able to pry loose on the witness stand.

Yet that didn’t happen, despite Kaiser and commissioners grilling Haynes for more than three hours, twice as long as she had told the commission that she would need. Whereas Haynes seemed calm and consistent as she described giving Lopez emotional support and probing to ensure that she wasn’t in danger, Kaiser fumbled through technical difficulties and maintained an accusatory and belittling tone even as the answers she was receiving seemed to destroy her line of questioning.

“I think the house of cards that mayor has been trying to establish about witness dissuasion was demolished by Linnette Peralta Haynes, who was absolutely credible,” Mirkarimi attorney Shepherd Kopp told reporters after the hearing.

But the star of last night’s show was Lopez, who had just returned from Venezuela, where she and her son have been staying with family since March because Lee stripped Mirkarimi of his salary and because the couple is barred from seeing one another by a restraining order they didn’t seek, but which has been extended by these proceedings.

Keith’s first line of questioning tried to use that separation against them, implying that Lopez was supporting Mirkarimi – which she has done since the beginning, claiming that he’s not abusive and that they are working on their problems – only so that he would continue to sign off in family court on his son remaining in Venezuela.

“Ms. Lopez has a thriving life in Venezuela and she wouldn’t want to do anything to upset the sheriff,” Keith proffered to a skeptical commission to justify his line of questioning about Lopez, who begins a 20-day film shoot on Monday.

But he seemed to score few points in that realm as Lopez – who was alternately resolute and playfully charming, sparking some of the only moments of levity and laughter during hearings that have dragged on for months – laid the blame for her family plight on Madison (“my nutty neighbor,” she Lopez once described her) and the investigators and prosecutors that she believes have misinterpreted her words and intentions and blown the incident out of proportion.

Keith also tried to find support for another key allegation against Mirkarimi – that he claimed to be a “powerful man” who could use his office to keep custody of their son in the event of a divorce – but he also seemed to hit a brick wall there. Based on statements by Madison – most of whose hyperbolic and unsupported written testimony has been disallowed by the commission – Keith tried to tie Lopez’s custody concerns to his status as sheriff, driving at that point with many questions.

But Lopez said her concern was that California family courts would favor Mirkarimi simply because he’s an American and she’s from a country that has bad relations with the US. “In this country, I think he’s in a better position than me,” she said. After he again tried to make it about his official position, she said, “As a sheriff, no; as an American, yes.”

It was that concern over custody that prompted Lopez to consult with Madison and make a tearful video of the bruise on her arm, something Lopez said Madison coached her through and promised would remain confidential, something Lopez believed because Madison had attended law school and presented herself as a lawyer.

When Keith confronted Lopez with a prior written statement that she was worried about Mirkarimi’s power as “an American and politician,” Lopez said that it was Madison who planted that idea in her head, not Mirkarimi. “After our conversation, she made me feel even more scared. She said it was an all boys network and they would protect themselves so you need evidence,” Lopez said.

But she denied the claim by the city and Madison that it was Mirkarimi who sought to improperly use his position, a key element of removing him for official misconduct. Lopez said her conclusions about Mirkarimi’s advantages in a potential custody battle were the result of conversation that happened much earlier.

“That conversation happened in March 2011. He wasn’t even thinking about running for sheriff at that point,” she said, denying that Mirkarimi ever raised his official position in their custody conversations and claiming the concerns about his power were her own. “He never said that, that was my conclusion of our conversations. He never said, ‘I am a powerful man.’”

Because the interrogation of Haynes dragged on so long, it was nearly 9pm when Lopez took the stand, and she only got through about 40 minutes of testimony before the hearing adjourned. Keith estimated that she would be on the stand for about two and a half hours – and so far, the city’s attorneys have underestimated how long they would question each witness – so there’s probably much more to come this afternoon.

Governor signs high-speed rail funding bill at Transbay Terminal

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The mood was jubilant at the Transbay Terminal construction site in downtown San Francisco this afternoon as political leaders gathered to watch Gov. Jerry Brown sign Senate Bill 1029, the hard-won recent authorization for selling the first $4.7 billion in state bonds to fund the California High-Speed Rail Project.

That money – part of the $10 billion that voters approved for the project in 2008 – and $7.9 billion in federal matching funds will go mostly to build the first high-speed rail section linking Merced to the San Fernando Valley. But it also includes money for related projects in the Bay Area, including $820 million to electrify and improve the Caltrain tracks that the project will share, $145 million for BART replacement cars and track improvements, and $61 million for SF’s Central Subway project.

The fact that Brown chose Transbay Terminal – the northern terminus for trains expected to travel at up to 220 mph between there and Los Angeles’ Union Station in less than three hours by the year 2027 – was an indicator of his focus on the long-term benefits of the project rather than its immediate impacts, a theme he emphasized in his speech.

“What this is about is investing in the future,” he said, pointing to the high-rises around him and noting how they were also the products of people with long-term vision. “The buildings that are up here didn’t come out of fear, they came from bold risk-taking.”

High-speed rail has been under increasing criticism from conservatives who complain about its cost (the total project cost is estimated at about $68 billion) and SB 1029 squeaked through the Legislation, with not a vote to spare in the Senate, where President Pro Tem Darrell Steinberg and other political leaders had to twist arms to get it done.

“The people know we can cut, the people know we can patch and mend, but the skeptics wonder whether we have the will to build,” Steinberg said at the event, which he said answered that question. “This is about economic vitality.”

Mayor Ed Lee praised state leaders for moving the project forward and said, “This project means more than just celebrating a great transit system, which high-speed rail is,” noting that the overall Transbay Terminal project will also include about 40,000 new residential units being built on a dozen surrounding buildings, including what will be the tallest on the West Coast.

But that project has its critics, including Quentin Kopp, the retired judge and former legislator who sponsored the bill that created the California High-Speed Rail Project and was the first chair of the California High-Speed Rail Authority. He has derided Transbay Terminal as simply a “real estate deal,” noting that the tunnel from there to the Caltrain station is too expensive, still unfunded, and shouldn’t be built.

Asked about that $1 billion-plus funding shortfall, Brown replied, “Let’s see the first phase, then the second phase, then we’ll figure out how to get it here.” He criticized the “NIMBYs and fearful men” and emphasized the long view of the project: “I signed my first high-speed rail bill 30 years ago. It’s taken some time to get this going.”

Several speakers cast the project as an obligation to future generations. Deputy US Secretary of Transportation John D. Porcari said most of the country’s most important infrastructure we enjoy today was built by past generations, and he asked, “Are we doing right by the next generation? Are we paying it forward?”

Feeling the heat, Olague kills RCV repeal for now

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After reviving a controversial effort to repeal the city’s ranked-choice voting (RCV) system and paying a political price for her shifting stands on the issue, Sup. Christina Olague today made the motion to send all three competing reform proposals back to the Board of Supervisors Rules Committee, effectively killing efforts to place them on the November ballot.

“The public would benefit from more public discussion on the issue,” Olague said, adding that she doesn’t think the measures should be on the crowded fall ballot competing with other important priorities.

Olague had been torn between supporting the desires of Mayor Ed Lee (who appointed her to the seat) and downtown interests to repeal RCV and those of her longtime allies in the progressive community who sought to defend it from total repeal – and she hadn’t been returning calls or indicating where she now stood before today’s Board of Supervisors meeting.

But after hearing more than 30 minutes of impassioned public comments on both sides of the issue, she made the motion to end the controversy for now, which was unanimously approved by the board. Olague also addressed the heat she felt indirectly, saying RCV “should not be a litmus test for whether someone is progressive” and “sadly, the discussion had degenerated to be about personalities.”

Her colleagues seemed happy to be done with this fight for now as well. Sup. Mark Farrell, who sponsored the measure to repeal RCV for all citywide offices, said it would be a “huge mistake” to have competing voting system measures on the fall ballot. Olague had previously offered an alternative to repeal RCV for just the mayor’s race, like Farrell’s measure using a September primary election and November runoff. Board President David Chiu responded to the RCV repeal effort by proposing another alternative, that one using RCV in the November election but having a December runoff between the top two mayoral finishers.

Chiu said he was happy to delay his proposal, saying, “I have thought the system we have is working quite well.”

Gonzalez withdraws his endorsement of Olague

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Matt Gonzalez – the attorney and former president of the Board of Supervisors whose 2003 run for mayor galvanized the city’s progressive movement – has withdrawn his endorsement of Sup. Christina Olague for his old District 5 supervisorial seat, citing her positions on the 8 Washington project and replacing ranked-choice (RCV) voting with a September mayoral primary election.

It is perhaps the biggest political blow that Olague has suffered since being appointed to her first elective office by Mayor Ed Lee in January, and a sign that she may be siding more solidly with Lee and his pro-development allies than with the progressive political community she has long identified with – and that could complicate her race in one of the city’s most progressive districts.

Gonzalez, who helped launch Olague’s political career by appointing her to the Planning Commission in 2004, confirmed his decision and the reasons for it, but he told the Guardian that he didn’t want to make a formal public statement yet. That could come later in the week, possibly coupled with a new endorsement in the race.

But he did say that he’s been frustrated with Olague’s actions on both 8 Washington – a housing project for the super-rich on the Embarcadero – and with her recent antics on RCV. In both cases, it wasn’t just the votes, but the way they were made that have raised doubts about Olague with Gonzalez and other progressives.

Olague and Sup. Jane Kim (another former Gonzalez protege who has disappointed many of her one-time progressive supporters on several high-profile issues) not only voted for the 8 Washington project, but also for a series of amendments that made the already lucrative project even more profitable for the developers and costly to the city.

On RCV, as I reported on Friday, Olague surprised progressives by giving new life to efforts by the most conservative supervisors to repeal the system, then has made a shifting series of statements and pledges on the issue, in the end supporting a system that will repeal RCV only for the mayor and create a September election.

The fear is that election would be extremely low turnout, and Lee could win it outright with at least 65 percent of the vote and avoid the normal November election, and Olague has been unwilling to fully explain her position or address concerns that she is simply doing Lee’s bidding. Olague hasn’t returned our calls on that issue or for her reaction to Gonzalez’s decision to withdraw his endorsement.

Olague’s antics on RCV alarm her progressive supporters

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As Sup. Christina Olague was being appointed to the District 5 seat on the Board of Supervisors by Mayor Ed Lee in January, we noted how difficult it might be to balance loyalty to the moderate mayor with her history as a progressive and someone running for office in one of the city’s most progressive districts.

By most indications, Olague doesn’t seem to be handling that balancing act — or the pressure that goes along with it — very well at all, to the increasing frustration of her longtime political allies. And that’s never been more clear than on the issue of repealing the city’s ranked choice voting (RCV) system.

As you may recall, earlier this year the board narrowly rejected an effort by its five most conservative, pro-downtown supervisors to place a measure repealing RCV on the June ballot. So chief sponsor Sup. Mark Farrell tried again in March with a ballot measure for November, this time just for citywide offices, and Olague surprised progressives by immediately co-sponsoring the measure, giving it the sixth vote it needed.

Since then, she’s offered shifting and evasive explanations for her actions, telling RCV supporters that she would withdraw her support then going back on her word. Sources close to Olague say that she’s been taking her marching orders on the issue directly from the Mayor’s Office, even as she tries to appease her progressive supporters.

Even trying to get a straight answer out of her is difficult. Two weeks ago, as the Farrell measure was coming to the board for a vote, I called her on her cell phone to ask whether she still supported the measure, and she angrily complained about why people care about this issue and said “you’re going to write what you want anyway” before abruptly hanging up on me.

I left her a message noting that it was her support for repealing RCV that had raised the issue again, that I was merely trying to find where she now stood, and that we expect accountability from elected officials. She called back an hour later to say she was still deciding and she denied hanging up on me, claiming that she had just run into someone that she needed to talk to.

At that week’s board meeting, she offered an amended version of Farrell’s proposal – which would replace RCV with a primary election in September and runoff in November for citywide offices – repealing RCV only for the mayor’s race. She has not directly addressed the question of why she supports a September election, which is expected to have even lower voter turnout than the old December runoff elections that RCV replaced.

So RCV supporters worked with Board President David Chiu to fashion an third option, this one maintaining the ranked-choice election for all offices in November, but having a December runoff between the top two mayoral finishers.

Going into this week’s board meeting on the issue, nobody was quite sure where Olague stood on that proposal or the overall issue, again because she’s been making different statements to different constituencies. And as the issue came up and various supervisors stated their positions, Olague stayed silent, as she has remained since then, refusing to return our calls or messages on the issue.

But because of technical changes to the three measures requested by the City Attorney’s Office – which Farrell made to Olague’s option, which he said he would support if his is defeated – consideration was delayed by a week to this coming Tuesday.

RCV supporters and Olague’s progressive allies didn’t want to speak on the record given that she is still the swing vote on the issue, but privately they’re fuming about Olague’s squirrely temperament, lack of integrity, and how she’s handling this issue (as well as her bad votes on the 8 Washington high-end housing project and her role in the Lee perjury scandal).

But rival supervisorial candidates like Julian Davis – who came to the hearing at City Hall Tuesday and proclaimed his unqualified support for RCV – are less reticent.

“Silence or avoidance are not acceptable, so we’re calling for her to explain why a low-turnout, plurality election in September is good for San Francisco. Help us understand,” he said, noting that such a election especially hurts minority groups and other progressive constituencies that don’t vote as reliably as conservatives. “Why should Christina Olague have anything to do with it? You and the rest of San Francisco deserve an answer.”

Meanwhile, Davis recently won the endorsement of local Democratic Party Chair Aaron Peskin, while fellow progressive candidate John Rizzo announced his endorsement by Assembly member Tom Ammiano. And there are rumors that some prominent progressives who have already endorsed Olague are considering withdrawing their endorsements because of her recent behavior.

All of which make for some interesting dramas going into Tuesday’s RCV vote.

Burning Man takes anti-scalper and traffic control measures as tickets arrive

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Most physical tickets to Burning Man were mailed out last week and, as many expected after a controversial ticket lottery with higher-than-expected demand, ticket scalpers were offering hundreds of tickets for more than double face value on websites such as eBay and StubHub. But Black Rock City LLC, the SF-based company that stages the event, over the weekend introduced some counter-measures to combat the scalpers and reiterated its request for burners to heed the culture’s decommodification ethos and refuse to pay more than face value for tickets.

“I don’t think any burner should buy a ticket for above face value,” Marian Goodell, the BRC board member who handles communications, told the Guardian. She said they’ve worked through the crisis of veteran burners – those who build much of Black Rock City’s infrastructure each year – not getting tickets.

“It’s sorting itself out, so I don’t think people need to go to the StubHubs out there. They can ignore the scalpers,” she said.

BRC already canceled a secondary open sale of what was to be the final 10,000 tickets, instead selling them through established theme camps and art collectives, fairly effectively getting them out to most burners who wanted them. Then, in the wake of getting federal permits for a higher than expected population cap of 60,900 this year, BRC on Sunday announced the release of an extra 2,000 tickets this year.

Half of those were dumped into the Secure Ticket Exchange Program (STEP) system that BRC created for people who unsuccessfully sought tickets during the main sale of 40,000 tickets in January. To further deter scalpers, those who hadn’t registered for that main sale – who are barred from buying through STEP – can try to snag one of the 1,000 tickets that BRC will offer during an online sale on Aug. 3, which requires registration on Aug. 1.

“We think the 1,000 tickets we put into the open sale will help pull the rug out from under the scalpers,” event founder Larry Harvey, who chairs the board, told us.

Harvey and Goodell also say BRC has been hard at work solving related issues as well, including concerns that the biggest ever population for this massive, isolated, temporary city in Nevada’s Black Rock Desert – where waits to get on or off the playa during peak hours can be four hours or longer – will create traffic nightmares.

“More lanes will be open more often,” Goodell said, explaining they will beef up the number of volunteers helping to get people in and out, as well as those working the lines at Will Call, which all the STEP ticket buyers were forced to use as another anti-scalper measure.

The event traditionally opens at midnight on the Sunday night before Labor Day weekend (Aug. 26 this year), but those in the know have known it was actually possible to get in a few hours early during the last couple years. This year, BRC will formalize that arrangement to help with traffic ingress, officially opening the gates to all attendees at 6pm.

Goodell said BRC will also be coordinating with big art projects and doing communications efforts with all attendees encouraging people to stagger entrance and departure times as much as possible to spread out the peak and lessen wait times. “We really want participants to educate themselves and think about their expectations,” she said.

As an additional measure, BRC will be moving up the final official event of the week – the burning of the Temple on the last Sunday night (Sept. 2) – from 9 pm to dusk to facilitate more people hitting the road that night.

Both Goodell and Harvey acknowledged that it’s been difficult to sort through the problems created by the huge demand for tickets this year, but they say that most of those who want tickets will have them and this should be a banner year in terms of the art and other offerings in this strange and bountiful experimental city.

“There were fears there would be less art this year, but there’s going to be more art than ever before,” Harvey said. Asked which piece he’s most excited to see this year, he said Yoga Robot by Colorado artist Scott Harris. To peruse some of the other art installations this year, click here to see check out art projects that got grants from BRC, which is only a small part of what attendees will see on the playa this year.

The malling of San Francisco

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steve@sfbg.com

Shopping malls filled with national chain stores and restaurants are in many respects the antithesis of San Francisco. They’re the bane of any metropolis that strives to be unique and authentic. And those just happen to be qualities that make tourism this city’s number one industry.

The logic of modern capitalism, and its relentless growth into new markets, has already placed a Target or a Walmart, and a Nordstrom, Macy’s, Ross, or a JCPenney — along with a bevy of Starbucks, Applebee’s, Jamba Juice, and McDonald’s and myriad other formulaic corporate eateries — in just about every town in the country.

Do people really need them here, too? And in a city renowned worldwide for its scenic beauty and temperate (albeit sometimes foggy) climate, do people want to shop in the enclosed, climate-controlled malls popularized in the small or suburban towns that many residents came here to escape?

For me, the answer is no. Frankly, malls have an aura of artificiality that gives me the creeps — but I freely acknowledge that not everyone feels that way. Some San Franciscans may like malls and chain stores while others don’t.

But it doesn’t really matter what any of us think. Left unchecked, it’s the market that matters — and the logic of the market gives chain stores a huge competitive advantage over the mom-and-pops. Their labor and supply costs are lower, their financial resources are more extensive and appealing to commercial landlords, and their business models are based on constantly opening new stores.

All cities have to do is just say yes. And San Francisco has been increasingly saying yes to malls and chain stores.

The economic desperation that set in since the financial crash of 2008 has overcome the trend of resistance to so-called “formula retail establishments” that had been building in San Francisco during the years before the recession.

So now, rather than dying from neglect, the Metreon mall has been brought back to life by a huge Target store set to open this fall, the second Target (the other one at Masonic and Geary) going into a city that had once eschewed such national mega-retailers.

Just down the street, in the heart of the city’s transit-rich commercial center, the CityPlace mall that had been abandoned by its previous owners after winning city approval two years ago is now being built by new owners and set to open next spring with “value-based” national chain stores like JCPenney.

Projects funded with public money aren’t immune either. The new Transbay Terminal transit center now under construction will have its own mini-mall, with 225,000 square feet of retail, much of it expected to house national chains. Even more retail will be built on the ground floor of the dozen other nearby residential and office buildings connected to the project.

And it isn’t just these new malls going in a stone’s throw from the Westerfield Mall, Crocker Galleria, San Francisco Center, and other central city malls. All over town, national chains like the Whole Foods and Fresh & Easy grocery stores are replacing Cala Foods and other homegrown markets, or going into other commercial shells like the S&C Ford building on Market near the Castro.

Just a few years ago, the approval of Home Depot on Bayshore Boulevard (since then sold and opened as Lowe’s, another national chain) was a hugely controversial project approved by the Board of Supervisors on a closely watched 6-5 vote. Now, Lennar is building an entire suburban-style complex of big box stores on Candlestick Point, hundreds of thousands of square feet — without much controversy at all.

Even Walmart — the dreaded poster child for huge corporations that use their market power to drive down wages or force local stores out of business — is reported to be actively looking to open “a couple” of stores in San Francisco (see “Walmart sets sights on San Francisco,” June 24, San Francisco Chronicle).

To Livable City Executive Director Tom Radulovich and others who have long encouraged San Francisco to embrace the kind of urbanism advocated by famed author and activist Jane Jacobs — which emphasizes unique, neighborhood-based development that enhances public spaces and street life — accepting the malls feels like giving up on more dynamic urban models.

“It’s sort of an admission of failure,” Radulovich said. “It’s the failure of urbanism in San Francisco.”

 

 

MID-MARKET SYMBOLISM

Mid-Market Street is a bellwether for the type of city San Francisco may become. Every mayor since at least Dianne Feinstein in the late 1970s has called for the redevelopment of Mid-Market into a more active and inviting commercial and social corridor, and few have done so more fervently than Mayor Ed Lee.

Several city studies have explored a wide variety of ways to accomplish that goal, from eliminating automobiles and transforming Market Street into a lively pedestrian promenade to using redevelopment money, tax breaks, and/or flashy lighted signs to encourage distinctive development projects unique to San Francisco.

“But the city failed, so the market filled the void,” Radulovich said.

It isn’t that all shopping malls or enclosed commercial areas are necessarily bad, Radulovich said, citing the influential work by writer Walter Benjamin on the roles the enclosed “arcades” of Paris played in public life. “They work when they are an extension of public spaces,” Radulovich said.

Yet that isn’t what he sees being built in San Francisco, where what gets approved and who occupies those spaces is largely being dictated by private developers who are more interested in their bottom lines than with the creation of a vibrant urban environment where people are valued as more than mere consumers or workers.

San Francisco isn’t alone in allowing national chains to increasingly dominate commercial spaces. In fact, Stacy Mitchell, a researcher with the Institute for Local Self-Reliance, said that until recently San Francisco was one of the best big US cities in controlling the proliferation of chain stores.

But the city has lost ground since its anti-chain high water mark in 2007, when voters approved Proposition G, which expanded the controls on formula retail outlets — generally requiring them to get a conditional use permit and go through public hearings — that the Board of Supervisors had approved in 2004.

Those controls are only as good as the political will to reject a permit application, and that doesn’t happen very often. A memo prepared last July for the Planning Commission — entitled “Informational Presentation on the Status of Formula Retail Controls” — found that of the 31 formula retails applications the city received since 2007, just three were rejected by the commission, six were withdrawn, and 22 were approved.

It’s gotten even worse since then, as the two Targets and other chains have been courted and embraced by Mayor’s Lee’s administration, whose key representatives didn’t respond to Guardian interview requests by press time.

Mitchell said it’s not nearly as bad in San Francisco as it is in Chicago, New York City, New Orleans, and other iconic US cities whose commercial spaces have been flooded with chains since the recession began.

“It’s nothing compared to the no-holds-barred stuff going on in New York City right now,” Mitchell said. “Walking down Broadway now is like a repeating loop of the stores you just saw further up the street.”

It isn’t that these cities are actively courting the national chains in most cases. It’s just that in the absence of strong local controls, developers and large commercial landlords just prefer to deal with chains, for a variety of reasons.

“If you’re just going with the flow of what developers are doing,” she said, “you always end up with national chains.”

And that’s what San Francisco has started to do.

 

 

MALLS LIKE CHAINS

Stephen Cornell, the owner of Brownie’s Hardware and a board member of the nonprofit advocacy group Small Business California, said chains have a huge competitive advantage over local businesses even before either one opens their doors.

“In general, landlords tend to like chains more,” said Cornell, whose business has struggled against Lowe’s and other corporate competitors. “The landlord always worries: is this guy going to make it and do they have the funds to back it up?”

Big corporate chains have lawyers and accountants on staff, and professional systems established for everything from buying goods to opening new stores, whereas most local entrepreneurs are essentially figuring things out as they go along.

“They’re very good at selling themselves,” Cornell said. “They’re going to manipulate the system perfectly, whether it’s the city and its codes or dealing with neighborhood merchants.”

And for large malls, Cornell said the problem is even worse. Brokers that fill malls have standing relationships with the national chains — most of which are publicly traded corporations seeking to constantly expand and gain market share — and no incentive to seek out or take a chance on local entrepreneurs.

“Chains have a lot of advantages,” Cornell said.

Mitchell said there are two main ways in which malls favor national chains over local businesses. In addition to the relationship between mall brokers and national chains, malls are often built with financing from financial institutions that require certain repayment guarantees.

“What they want to see are credit-worthy clients signed onto those places, and that means national chains with a credit rating from Standard & Poors,” Mitchell said, noting how that “automatically locks out” most local businesses.

Cornell also noted that national chains have already figured out how to maximize their efficiency, which keeps their costs down even though that often comes in the form of fewer employees with lower pay — and less reliance on local suppliers, accountants, attorneys, and other professionals — which ends up hurting the local economy. In fact, big chains suck money out of the city and back to corporate headquarters.

“All those people are making money and spending money here, so you have to look at the full circle,” Cornell said.

Mitchell said there are often simple solutions to the problem. For example, she said that city officials in Austin, Texas recently required the developer of a large shopping mall to set aside a certain percentage of the units for locally owned businesses.

So rather than hiring a national broker to find tenants, the developer hired a local broker to contact successful independent businesses in the area who might be interested in expanding, and the project ended up greatly exceeding the city’s minimum requirements.

Mechanisms like that, or like the formula retail controls pioneered in San Francisco, give her some hope. But she said, “Whether the counter-trends will be enough to counter the dominant trend, I don’t know.”

 

 

PUBLIC SUBSIDIES

The increased malling of San Francisco isn’t simply the result of official neglect. Often, the city’s policies and resources are actively encouraging the influx of chain stores. A prime example is the massive redevelopment project on Hunters Point and Candlestick Point that city voters approved in 2008 after mega-developer Lennar and most San Francisco political officials pushed the project with a well-funded political campaign.

“If you’re selling the land to Lennar for a dollar, and then building all the automobile infrastructure for people to get there, then that’s a massive public subsidy,” Radulovich said of the big-box mall being built on what was city-owned land on Candlestick Point.

That public subsidy creates a cycle that makes San Francisco less intimate and livable. Creating commercial spaces on the city’s edge encourages more people to drive on congested regional roadways. These spaces are filled with national chain stores that have a direct negative impact on small, locally owned stores in neighborhood commercial districts all over the city, causing some of these businesses to fail, meaning local residents will need to travel further for the goods they once bought down the street.

“Those neighborhoods are going to be less walkable as a result,” Radulovich said, noting how the trend contradicts the lip service that just about every local politician gives to supporting local businesses in neighborhood corridors. “There’s a certain schizophrenia to San Francisco’s economic development strategy.”

Sup. Eric Mar has been working with Jobs with Justice San Francisco and other groups to tweak city policies that have allowed the chains to proliferate. Last year, Mar held high-profile hearings in City Hall on how national chains impact local businesses, which pointed to the need for additional protections (see “Battling big box,” Jan. 3).

This year, he’s working on rolling out a series of legislative initiatives designed to level the playing field between local interests and those of Wall Street and the national chains it champions.

Last month, the Board of Supervisors approved Mar’s legislation to add banks to the city’s formula retail controls, a reaction to Chase Bank and other national banks snapping up vacant stores in neighborhood commercial corridors such as Divisadero Street.

Now he’s working on legislation that would mandate minimum labor and community benefit standards for chain stores — including grocery outlets such as Fresh & Easy — and study how chains affect San Francisco’s overall economy.

“There should be good neighbor policies when they come into a neighborhood,” Mar said. “Some neighborhoods are so distressed they may want a big box grocery story coming in, but we need to try to mitigate its negative impacts.”

One of his partners in that effort is his brother, Gordon Mar of Jobs with Justice, who argues the city needs to have a clearer picture of how national chains impact local communities.

“We’ve definitely seen an increase in corporate chain stores coming into San Francisco in the last year, and nobody has really been tracking it,” he said.

While the Planning Department’s quarterly pipeline report shows that applications for retail outlets has held steady at about 3 million square feet on the way in recent years, it doesn’t break out how much of that is national chains — let alone how that impacts the city’s economy and small business sector.

The city’s Legislative Analyst is now studying the matter and scheduled to release a report later this summer, which Gordon Mar said will be helpful in countering the narrow “jobs” rhetoric that now dominates City Hall.

“They are exploiting the economic recession by saying they’re bringing much needed jobs into the city and serving low-income residents,” he said. “But when you bring out the facts about the impact of these low-road retail stores on neighborhoods and small businesses, there is a net loss of jobs and a lowering of labor standards.”

 

 

VALUING MALLS

Yet the fate of those controls is uncertain at best, particularly in a tough economic environment in which the city needs revenue, people are desperate for jobs, and many residents have seen their buying power stagnate, making the cheap goods offered by Target and Walmart more attractive.

“It’s complicated stuff,” Michael O’Connor, a local entrepreneur and former member of the Small Business Commission who favors formula retail controls, told us. “Stores like Target do appeal to lower income families…The progressive agenda needs to understand that working-class families need somewhere to shop.”

O’Connor acknowledges how small businesses like those he owns, including a clothing store, often can’t compete with national chains who buy cheap goods in bulk. So he said he favors protections in some neighborhoods while allowing chains in others, telling us, “I don’t have a problem with the Target going into the Metreon.”

That argument also held sway with city officials when they considered approving the CityPlace project two years ago, which was presented as a mall filled with “value-based” stores that would be affordable to median income San Franciscans.

“At the time, the decision was around whether a value-based retail operation made sense in that location, and the answer was an emphatic ‘yes,'” Barbary Coast Consulting founder Alex Clemens, who represented the project, told us.

On a national or global level, there are good arguments against reliance on national chains selling cheap imported goods, which has created a huge trade deficit between the US and countries such as China that costs American jobs — ironically, the very things that some use as arguments for approving chain stores.

“The recession has created a climate of desperation where cities are more easily swayed by the jobs argument,” Mitchell said, noting the falsity of those arguments by pointing to studies showing that the arrival of chain stores in cities usually creates a net loss in employment. Finally, supporters of chain stores say the cash-strapped city needs the property and sales tax revenue “Because they say they’ll produce a lot sales tax revenue, they’re going to get away with all kinds of shit,” Cornell said, arguing that shouldn’t justify city policies that favor big corporations, such as tax breaks and publicly financed infrastructure. “I certainly don’t think [city officials] should be giving them any advantages.” There are few simple solutions to the complex and interconnected problems that result from the malling of San Francisco and other cities. It’s really a question of balance — and the answer of whether San Francisco can regain its balance has yet to be answered. “Given the mayor’s approach to economic development, it’s inevitable that we’ll have more coming into the city,” Sup. Mar said. “But the ’50s car culture, and the model of malls that came in the ’60s, don’t build communities or strong neighborhoods.”

Hollie Stevens lived a big life that was tragically cut short

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When a slowly unfolding tragedy strikes the young and energetic, fate seems especially cruel, a notion I haven’t been able to shake since learning that my friend Hollie Stevens, a 30-year-old porn star, died this week after a year-long bout with cancer that had spread from her breasts to her brain.

Hollie moved here from the Midwest in her early 20s for a career in porn that included more than 170 films, and she had an infectious zest for life and a strong and expansive sense of her community. She was proudly living her dream, parlaying her film career into an entertaining column on porn life in Girls and Corpses magazine, art projects, and speaking gigs.

I met Hollie in 2008 when working on “Cue the clowns,” a Guardian cover story on the burgeoning local indie circus scene, a memorable meeting that I even included in the article. Dressed as a clown at a Bohemian Carnival event, I asked this statuesque blond if she liked clowns, and she responded that she was a clown and had starred in a film called Clown Porn, a cult classic in this admittedly narrow porn genre.

Hollie combined a fun-loving free spirit with a down-to-earth confidence that made her easy to befriend, as other friends of mine at the time also found. While doing often-extreme BDSM porn shoots at the Armory for Kink.com and live shows at Lusty Lady, she also became a regular in the tight crew that gathers on the north side of Baker Beach and a volunteer with How Weird Street Faire and other community events.

We’d lost touch when I heard last year that she was diagnosed with stage three metastatic breast cancer, which first claimed those beautiful breasts and then her luscious life. But our mutual friends said she was a fighter who maintained her spirit and sense of humor throughout, an inspiration to friends and admirers who held a series of fundraisers around San Francisco to help pay her medical expenses. Just last month, she married her love, artist and comedian Eric Cash, while in the hospital.

Hollie was one of those classic San Francisco transplants, who made a real home and family of her adopted city and lived an unconventional life to its fullest potential. She will be greatly missed by many admirers and kindred spirits.

 

 

 

Perjury allegations against Lee gain more support

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San Francisco Democratic Party Chair Aaron Peskin has confirmed his role in extending a city job offer from Mayor Ed Lee to Sheriff Ross Mirkarimi if Mirkarimi had been willing to resign in March, bolstering allegations that Lee may have committed perjury when testifying under oath before the Ethics Commission on Friday.

But even as more media outlets report the possible perjury (a story we broke first here), which is further complicating the already complicated official misconduct proceedings that Lee brought against Mirkarimi, the Mayor’s Office and key Lee allies have refused to comment on the perjury allegations or the strange circumstances surrounding the alleged bomb threat that temporarily got Lee off the hot seat.

As we reported in this week’s Guardian, Building Inspection Commissioner Debra Walker said Lee was lying when he said that he hadn’t spoken with any members of the Board of Supervisors before charging Mirkarimi with official misconduct. Walker said Sup. Christina Olague told her she had spoken with Lee about the matter, which Olague now denies.

Lee also responded “absolutely not” when asked by Mirkarimi attorney Shephard Kopp whether he authorized Peskin or development consultant Walter Wong, a close Lee ally, “to convey to Sheriff Mirkarimi if he would stop down, you’d get him another job.”

At press time for this week’s article, Peskin was backpacking in the Sierras and couldn’t be reached, but he has now confirmed to the Guardian that he met with Wong at 11:30am on March 19 – just hours before Lee met with Mirkarimi to say he would be removed from office unless he resigned – at Cafe Trieste.

In that meeting, Peskin said Wong asked him to convey to Mirkarimi an offer from the mayor of a job with the San Francisco Public Utilities Commission or the Airport Commission if Mirkarimi would voluntarily resign. Asked whether Wong indicated that he had discussed the offer with the mayor, Peskin told us, “He certainly left me with that impression.”

Mirkarimi refused to accept the offer, insisting on fighting to keep his job, which was one factor in Peskin’s subsequent public statement calling for Mirkarimi to resign. “There were a lot of things that factored into that,” Peskin said of his call for Mirkarimi to step down, although he wouldn’t discuss other factors on the record.

Efforts by both the Guardian and the Examiner to reach Wong have been unsuccessful, and messages to the Mayor’s Press Office on this and related issues also haven’t been answered. But just as Walker has offered to do, Peskin said he’s willing to testify under oath if asked.

“I am prepared, if subpoenaed, to tell the truth, the whole truth, and nothing but the truth,” Peskin told us.

Lee hasn’t had any public events or made any public comments on the matter since the scandal broke on Friday. The other unanswered mystery is why Lee was whisked from the hearing room just 15 minutes into his testimony, shortly after making the statements that Walker alleges amounted to perjury.

As we reported, neither the SFPD nor the Sheriff’s Department ordered the room evacuated, meaning that decision must have been made by someone within the Mayor’s Office. Press Secretary Christine Falvey’s last statement to the Guardian, on July 2, said, “Again, the mayor’s office did not recess the meeting. I still have to refer you to the Police Department which maintains Mayor Lee’s security or the Ethics Commission about the decision to recess the meeting for (I believe) about 90 minutes.”

Yet neither body seems to know who made the call, and follow-up questions asking the Mayor’s Office to disclose any information they have about that decision have gone unanswered. District Attorney George Gascon — whose office would need to pursue the perjury allegations considering the city’s official misconduct rules don’t apply to the mayor — also didn’t return our call asking generally how allegations of this fashion should be handled.

The official misconduct proceeding continue in front of the Ethics Commission on July 18 and 19 when Mirkarimi’s wife, Eliana Lopez, is scheduled to testify. But that has also been complicated by the Mayor’s Office’s refusal to authorize payment for a plane ticket for Lopez to return from her native Venezuela to testify. Mirkarimi and his legal team say they can’t afford to pay for that plane ticket after Lee suspended Mirkarimi without pay.

Davis launches D5 campaign with fortuitous timing

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When progressive activist Julian Davis formally launched his District 5 supervisorial campaign late last week with a well-attended kickoff party at the Peacock Lounge in Lower Haight, timing and circumstances seemed to be on his side.

Days earlier, Quintin Mecke – a rival for the progressive vote in this staunchly leftist district – announced to supporters that he needed to care for his ailing mother and wouldn’t be running after all. At the same time, appointed incumbent Christina Olague seemed to be rapidly falling from favor with many progressives.

First came the viral video of Olague gushing over all the support she’s received from Chinatown power broker Rose Pak during a fundraiser where she raised nearly $50,000, then her squirrely role in helping the moderates repeal ranked-choice voting, and finally the bizarre episode of clashing with a close progressive ally and friend to defend Mayor Ed Lee from perjury allegations.

Davis has sought to capitalize on the rapidly unfolding developments, today sending out a press release blasting Olague for having “joined the conservatives on the Board of Supervisors to repeal ranked choice voting for mayoral elections,” and telling the Guardian that Mecke’s exit will help clarify the choice D5 voters face.

“The fact that he’s out allows us to consolidate the progressive base,” Davis said, not mentioning that candidates John Rizzo and Thea Shelby will also be vying for the progressive vote.

At his kickoff party, Davis also demonstrated that he has substantial support from another significant D5 voting block – African Americans – for which he’ll be competing with political moderate London Breed, director of the African American Arts & Cultural Complex.

Davis said that with Olague’s support by Mayor Ed Lee and the city’s economic and political establishment, he’ll need to run a strong grassroots campaign based on “people power and shoe leather,” an approach that he’s also displaying with regular street corner campaigning.

“We’re at an economic, social, and political crossroads in San Francisco,” he said at his launch party. “Rogue developers are corrupting City Hall with a vision of luxury condos, corporate tax breaks, chain stores, and parking garages. It’s a vision of San Francisco that doesn’t include us. Everyday, progressive reforms are being dismantled and progressive values are being abandoned.”

Davis is hoping that Olague’s ties to Lee will drag her down in a district that voted almost 2-1 in favor of progressive John Avalos (whose campaign Davis actively worked on) over Lee in last year’s mayor’s race.

“Look what’s happening on the waterfront where Olague voted to approve the 8 Washington development. These are condos for the Kardashians, vacation homes for the ultra rich and the 1 percent. That’s not keeping it real for San Francisco,” he said at the kickoff. “So we’ve got to ask ourselves: how do they get away with it? The only way they can. By choosing your leaders for you. Over the past two years in San Francisco, we’ve had an appointed mayor, an appointed district attorney, an appointed sheriff, and an appointed District 5 supervisor. Does that sound like participatory democracy to you? Does that sound like your vote counts?”

And as Avalos also tried to do in his mayoral campaign, Davis says he wants to use his campaign to help restart the city’s progressive movement, which has been in tatters since being divided and nearly conquered by the politicians and political operatives who helped elevate Lee into Room 200 18 months ago.

As he told supporters, “We can re-launch the progressive movement in San Francisco from this district. We can take back City Hall. We will win this election with people power, street by street, block by block, neighbor to neighbor, shop by shop.”

Under oath

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steve@sfbg.com

Mayor Ed Lee and suspended Sheriff Ross Mirkarimi each took some lumps on June 29 as they were cross-examined by opposing attorneys in front the Ethics Commission, which is conducting the official misconduct case that Lee brought against Mirkarimi over a Dec. 31 domestic violence incident. But the hearings proved unexpectedly dramatic when the room was suddenly cleared for an undisclosed security threat — following testimony by Lee that a city commissioner alleges included perjury.

The incident raises a number of issues that officials hadn’t yet answered by Guardian press time. Was the security threat real? If so, why wasn’t the room or the rest of City Hall properly secured after the mayor was whisked away? If not, who ordered the room cleared and why?

Undersheriff Paul Miyamoto, who ran against Mirkarimi last year, told the Guardian that the San Francisco Police Department notified his office that a caller claimed to have planted bombs outside of City Hall and on the Golden Gate Bridge. Deputies conducted a search and found nothing, and his office didn’t order the recess of the hearing. “We did not evacuate anyone,” he told us.

Speculation about the incident was heightened during the break when Debra Walker, a Mirkarimi supporter and longtime member of the city’s Building Inspection Commission, told the Guardian that Lee committed perjury when he denied speaking with any members of the Board of Supervisors before filing official misconduct charges. Lee was responding to a direct and pointed question from Mirkarimi attorney Shepherd Kopp — one that that Lee’s attorneys had unsuccessfully objected to.

Specifically, Walker said that her longtime friend and political ally Sup. Christina Olague — who Lee appointed to serve the last year of Mirkarimi’s term for the District 5 seat — had told her repeatedly that Lee had asked her advice before filing the charges against Mirkarimi, and that Olague’s advice was that Lee should ask for Mirkarimi’s resignation but drop the matter if he refused.

That allegation, which was first reported on the Guardian’s Politics blog shortly after the commission went into recess (Olague had not yet returned a call from the Guardian asking whether she had spoken to Lee about Mirkarimi), prompted reporters to confront Olague in the hallway outside her supervisorial office, where she tersely denied the allegation and then took refuge behind closed doors.

When the reporters lingered and persisted, waiting for a more complete answer, Olague finally emerged, reiterated her denial, refused to speculate about why her friend Walker would make that claim, and said, “We’re not allowed to discuss this matter with anyone before it comes to the board…I may have to recuse myself from voting on this.”

It was unclear why she thought recusal might be necessary, but if she does disqualify herself from voting on Mirkarimi’s removal later this summer after Ethics completes its investigation and makes its recommendations to the board, that would hurt Lee’s effort to get the nine votes needed to remove Mirkarimi.

When the Ethics Commission hearing resumed after a couple hours, Lee was again placed in a position of denying specific factual allegations that others have made, again raising the possibility that he committed perjury in his sworn testimony, which could expose him to felony criminal charges while undercutting his moral authority to remove Mirkarimi over the single misdemeanor count of false imprisonment that he pleaded guilty to in March.

The second instance was when Kopp asked Lee, “Did you ever extend any offer through third parties that you would find him another job if he resigned?”

“I don’t recall offering Sheriff Mirkarimi any job,” Lee replied.

Kopp specifically asked whether that job offer had been extended on Lee’s behalf by permit expediter Walter Wong or by San Francisco Democratic Party Chair Aaron Peskin, to which Lee replied, “Absolutely not.”

Mirkarimi supporters have told the Guardian that Peskin had made that offer, which Mirkarimi refused, shortly before the party chair publicly called for Mirkarimi’s resignation. The outgoing message on Peskin’s cell phone said he was unavailable and wouldn’t be checking his messages until July 5. Mirkarimi’s attorneys said they’re still figuring out how to respond to the developments and had no comment, but Walker said she’s willing to testify under oath.

But the dramas underscore the treacherous grounds opened up by these unprecedented proceedings, the first involving the Ethics Commission and the broadened definition of official misconduct placed into the City Charter in 1996. As baseball great Barry Bonds and former President Bill Clinton learned, being forced to testify under oath about sensitive topics can be a tough trap to negotiate.

 

MIRKARIMI TESTIMONY

Deputy City Attorney Peter Keith also seemed to be trying to spring that perjury trap on Mirkarimi as he took the stand on the morning of June 29 following an hour on the stand at the previous night’s hearing. Keith reminded Mirkarimi that he was advised not to discuss his testimony with anyone and asked, “Who have you spoken to since last night?”

“My attorneys,” Mirkarimi answered.

“What did you say to them?” Keith asked, drawing objections about attorney-client privilege that Commission Chair Benedict Hur sustained.

“Did you stop for coffee?” Keith then asked, seemingly concerned that Mirkarimi may have discussed his testimony with someone at the coffee shop that morning, which Mirkarimi denied. Keith let the allegation go but maintained an accusatory, hectoring tone throughout the next three hours that he had Mirkarimi on the stand, two more hours than he had told the commission he would need.

Much of the time was spent trying to establish support for the allegation that Mirkarimi had dissuaded witnesses and sought to thwart the police investigation, which was triggered by a call from Ivory Madison, a neighbor to whom Mirkarimi’s wife, Eliana Lopez, had confided. But the testimony yielded little more than the city’s unsupported inference that Mirkarimi must have directed Lopez and his campaign manager, Linnette Peralta Haynes, to contact Madison after she had called the police and urged her to stop cooperating with them.

Mirkarimi has maintained that he did nothing to dissuade Madison or anyone from talking to police, and that he wasn’t aware of the investigation or that Madison had made a videotape of Lopez showing a bruise on her arm until hours after the police were involved. He even sent a text to Lopez saying there was nothing he could do, as he noted.

“It was after 4pm on January 4 when I first learned of any of this,” Mirkarimi testified, later adding, “I was very clear to her in saying you can’t unring the bell, we have to follow through with this.”

Yet Lee and the deputy city attorneys who are representing him also maintain that they needn’t prove witness dissuasion or other allegations they have made, and that the Dec. 31 incident and Mirkarimi’s guilty plea to a single misdemeanor count of false imprisonment are enough to constitute official misconduct and warrant his removal, an interpretation that Mirkarimi’s attorneys dispute.

Keith sought to hammer home how Mirkarimi should have admitted to and publicly atoned for his crime right away rather than telling reporters it was a “private family matters” (which Mirkarimi admitted was a mistake) or fighting the charges by trying to discredit Madison publicly, an allegation he denies.

After unsuccessfully trying to get Mirkarimi to admit to directing efforts to question Madison’s credibility in local media accounts, Keith asked, “Did you ever direct anyone not to attack Ivory Madison?”

“I never directed anyone to attack or not attack,” Mirkarimi replied.

Keith also clarified that Mirkarimi denies the allegation Madison made that the physical abuse on Dec. 31 went beyond grabbing Lopez’s arm once in the car, as the couple has maintained. “It’s your testimony there was no punching, pulling, or grabbing in the house?” Keith asked, which Mirkarimi confirmed.

Yet Keith said that given the totality of what happened, Mirkarimi should have known he couldn’t continue on as sheriff. “Under those circumstances, wouldn’t resigning be the honorable thing to do?” Keith said, to which Mirkarimi replied that it’s a hard question and that he’s doing what he thinks is right.

Faced with friendlier questions from his own attorney, David Waggoner, Mirkarimi apologized for his actions, saying “I feel horrible and ashamed,” but that he was “sad and scared” to have his family torn apart against their will. He also said that he believes he can still be effective as sheriff because “what makes San Francisco special is our forward-thinking approach to criminal justice.”

Longtime Sheriff Michael Hennessey — who endorsed Mirkarimi and continues to support him — established a variety of programs emphasizing redemption and rehabilitation, hiring former convicts into top jobs in the department to emphasize a belief in restorative justice that Mirkarimi ran a campaign promising to continue.

“Never in my wildest dreams did I think I would be an example of what this redemption process looks like,” Mirkarimi said, choking back tears.

But Keith had the last word before Mirkarimi left the stand, belittling the idea that Mirkarimi offers an example to follow by noting how much probation time and court-ordered counseling he still has to undergo and asking, “The process of redemption doesn’t happen overnight, right?”

 

LEE ON THE STAND

Under questioning by Kopp, Mayor Lee admitted that he doesn’t have a written policy on what constitutes official misconduct, that his decisions are made on “a case by case basis,” and that he’s not sure whether conviction of a crime would always constitute official misconduct “because I’ve never confronted this before.”

“Were you aware that many members of the Sheriff Department have criminal convictions?” Kopp asked. Lee said he was not aware. Asked whether he was aware that Sheriff Hennessey had hired a convicted murderer into a top command staff position (see “The unlikely sheriff,” 12/21/11), Lee said he wasn’t.

Lee’s insistence that Mirkarimi’s crime makes him unable to deal effectively with other officials was also attacked by Kopp, who asked, “Isn’t it true that people get elected who have disagreements with other city officials?” He pointed out that City Attorney Dennis Herrera had nasty conflicts with Lee when they ran against each other for mayor last year, but that they’re working well together now.

Kopp also drilled into Lee about his decision to bring official misconduct charges before conducting an investigation or speaking with any witnesses besides Madison — an answer Lee blurted out just as city attorneys objected to the question. Much of Madison’s written testimony has been rejected by the commission as prejudicial hearsay evidence (see “Mayor vs. Mirkarimi,” July 27).

But the public’s perception of this case, if not it’s outcome, could turn on whether Lee is holding Mirkarimi to standards that he himself — as someone appointed mayor on a later-broken promise not to run for a full term — couldn’t meet. It was what Kopp seemed to be driving at before the bomb scare.

“You have asserted in your written charges that Sheriff Mirkarimi’s conduct fell below the standard of decency, good faith, and right action that is impliedly required of all public officials, correct?” Kopp asked.

“Yes,” Lee replied.

“We expect certain things of our elected officials, right?” Kopp asked.

After a long pause, in which Lee appeared to be thinking through his answer, he replied, “That’s generally true, yes.”

“And when the charter speaks of official misconduct, it doesn’t say we expect a certain standard for the sheriff, a different standard for the mayor, a different standard for the DA, a separate standard for the assessor, it just speaks in general terms about official misconduct for public officials, right?” Kopp asked.

Kaiser objected to the question on three counts, sustained on the grounds that it calls for a legal conclusion.

“Do you yourself believe there’s a separate standard for sheriff than for other elected officials?” Kopp asked, and this time the city’s objection was overruled and Lee replied, “It should be the same standard.”

“And would you agree with me that one of the things that is expected of elected officials is for them to be honest and forthright when dealing not only with their constituents, but with other elected officials?” Kopp asked, his final question before Chair Benedict Hur announced that the hearing would be suspended and the room would need to be cleared.

After the hearing reconvened, Kopp drew parallels to other city officials who remained on job after scandals, including former Mayor Gavin Newsom (who had an affair with a subordinate who was married to his campaign manager), former Sheriff Dick Hongisto (who was jailed for refusing to carry out a court’s eviction order), and current Fire Chief Joanne Hayes White (whose husband reported that she hit him in the head with a pint glass).

Asked about the latter case, Lee responded, “I don’t know all the circumstances around that and I don’t believe I was mayor at the time.”