Exclusive to the Westside Observer
Ruminations of a former citizen Supervisor
High Speed: An Historical Perspective
Most people recognize that history provides guidelines and lessons in human affairs. Having served in various elective and appointed public offices, replete with varying crucibles of disputatiousness and responsibility, commencing in 1967 with my appointment by then-San Francisco Board of Supervisors President John A. Ertola to the San Francisco Charter Revision Commission, historical reminders serve a purpose for younger generations and even older generations.
Having introduced successfully the legislation establishing the California High-Speed Rail Authority in 1996, and having served since June 2006 by appointment of the State Senate as a Governing Board Member, including three years as Board Chairman until June 30, 2009, I understand the inevitable differences of opinion about the manner in which the California High-Speed Rail Project should be consummated.
As the largest non-defense and non-space industry project in California’s history and invoking memories of such national projects as the Transcontinental Railroad, the Tennessee Valley Authority, the Grand Coulee and Hoover Dams, and the Interstate Highway System of post-World War II America, ultimate decisions are vigorously debated and premises are acutely scrutinized. Moreover, contemporary California (and America) functions with legally-enacted environmental analyses intended to restrain adverse effects from any construction project, much less one with the enormity of high-speed rail.
While traditional anti-governmental spending entities and persons condemn the notion of trains traveling at speeds of 200-220 miles per hour and spurn replication of high-speed rail systems which began in 1964 in Japan and have been added in France, Germany, Spain, Italy, England, Belgium, Holland, South Korea, Taiwan, and China, national transportation policy has markedly shifted, just as California transportation policy changed with then-Governor Pete Wilson’s approval of a State Senate measure creating the California High-Speed Rail Authority and handing it the responsibility to implement high-speed rail as quickly as possible. That legislative and gubernatorial action was reiterated by California voters in November 2008 (after several postponements) with approval of a $9.95 billion State General Obligation Bond for high-speed rail and its connection to regional rail systems. Having secured approval of its Program Environmental Impact Report (EIR) in early 2008 by the United States Environmental Protection Agency and the Federal Railroad Administration, the Authority Board certified the capacious document on July 8, 2008.
The next step in the process includes structural engineering design at the various section alignments between San Francisco and Anaheim, through San Jose, the Central Valley and Los Angeles, together with accompanying environment analysis. It is laborious, necessitating investigation of all environmental effects and the feasibility of alternatives. As California courts have continually iterated, in the first part of the EIR, the standard is whether an alternative is potentially feasible: in the second part, the final decision on project design approval, the decision-making body evaluates whether the alternatives are actually feasible and may reject as infeasible any alternative identified in the EIR as potentially feasible. Among present public opinion differences about construction of the project between San Francisco and San Jose are those relating to whether the entire route alignment should be aerial, underground, or trenched. Such potential opinions are not endemic only to high-speed rail on the Peninsula. As the history of key decisions in the development of Bay Area Rapid Transit (BART) demonstrates, similar contentious differences of opinion throughout the three-county district in the 1960s occurred. In downtown San Francisco, 14 citizen advisory groups raised questions about BART facilities. Over a nearly two-year period, BART dealt with station mezzanine extensions, station locations, the depth of BART structures below ground, separate utility chases, sidewalk width, plaza developments the length of Municipal Railway platforms, placement of station entrances—all seeking to prevent adverse effects upon traffic circulation patterns. Similar discussions occurred in downtown Oakland.
In Berkeley, city planners proposed placing a portion of the alignment underground. In spring, 1964, a City Council Committee headed by Mayor Wallace Johnson, propounded the sale of “tax allocation bonds,” of which $6.2 million would be earmarked for construction of additional subway alignments throughout Berkeley. Berkeley asked BART to provide an estimate of the additional cost of total underground construction. BART’s preliminary estimate was $21 million. Berkeley’s engineers adamantly defended the estimate of $10 million for realigning the route underground. At the end of 1964, the BART estimate of total subway cost increased to $25 million, and the Berkeley City Council decided to offer Berkeley voters a choice between a shorter or longer subway extension. Voters were given three choices: First, establishment of a special district within BART, in which a bond election could be held; second, approval of a bond issue for $2.4 million, representing the difference between the Federal Capital Grant of $4.7 million and a $7.1 million low bid for the two shorter underground portions; and third, approval of a bond issue of $20.5 million to cover, with a federal grant, BART’s estimate of $25 million as the cost of placing the entire alignment underground through Berkeley.
The City Council Members strongly supported, as did a citizens’ committee, the larger bond issue. So did citizen and political organizations from the conservative Berkeley Citizens United to the radical Committee for New Politics, who waged a strong campaign amidst the crest of much anti-BART sentiment, which, in turn, was encouraged by the San Francisco Chronicle’s stinging campaign against BART. On October 5, 1966, voters approved the larger bond measure by an 82% “yes” vote. In the end, additional costs of placing the route underground from a financial concern of such additional costs were more than satisfied by Berkeley’s bond issue: The ultimate low bid for the entire subway through Berkeley was $12.5 million, thus obviating Berkeley’s need to issue the total approved general obligation bond. Today, although Bay Area residents take for granted the fact of underground Berkeley BART stations; the decision-making process was, however, arduous but different in scope than the decision-making process which California and federal environmental laws require in 2010. All interested persons may be assured that the California High-Speed Rail Authority follows (and will continue to follow) those therapeutic laws, which didn’t exist for the 71-mile initial BART system that opened on phases beginning on September 11, 1972.
Fundamental principles of fair expenditure of public funds will be practices, without favoritism based on affluence.
Former Supervisor Kopp was elected to the San Francisco Board of Supervisors in 1971 and served until 1986, representing the conservative West Portal neighborhood.
SF Terminal Requires
A Full Review
In approving the ballot measure known as Proposition 1A last November, California voters confirmed the financial foundation for development of a multi-billion dollar high speed rail system connecting Northern and Southern California. Now, voters, taxpayers, and future riders expect and deserve assurance that the system will be properly built, including selection of appropriate design and methods for traversing all sections of the project’s first phase from San Francisco to Anaheim, such as San Francisco to San Jose and selection and design of the northern terminus in San Francisco.
In 1997, the San Francisco Redevelopment Agency, San Francisco Planning Commission, San Francisco Board of Supervisors and then Mayor decided to proceed with a new train terminal between Folsom and Mission Streets and Main and Beale Streets. Thereafter, the Alameda-Contra Costa Transit District accused the Mayor and City and County of violating the California Environmental Quality Act and demanded rescission of all resolutions adopted by the Redevelopment Agency, Planning Commission, Board of Supervisors, and Mayor. The District allegedly didn’t like the location for purposes of operating a trans-bay bus service, which merely accounts for about 12,000 rides per day in and out of San Francisco.
Within one month, the suit was dismissed as San Francisco swiftly changed position to embrace replacement of the Transbay Bus Terminal at First and Mission Streets. Before Propositions 1A’s passage, the principal goal of the Transbay Terminal Authority, governed by a five-member board and controlled by San Francisco, was simply to accommodate AC Transit and Caltrain riders.
In 2008, the California High-Speed Rail Authority (Authority) had designated a proposed (and bedizened) Transbay Transit Terminal, replete with its $1,189,000,000 cost in March 2008 dollars, as its so-called “preferred alternative” for a San Francisco station. That was iterated in the Bay Area-Central Valley Program Environmental Impact Report, approved by the Authority on July 8, 2008.
Now that high-speed rail has been acclaimed by voters and taxpayers, all plans and options must be assiduously reviewed to ensure the needs of both high-speed rail and Caltrain are met. That is, the Authority must perform its legally enforceable duty to evaluate alternatives as part of the current project-level environmental analysis process. Final decisions on all high-speed rail stations, San Francisco and otherwise, can’t be effectuated until the end of those environmental and engineering design processes.
In particular, rail facilities at First and Mission Streets must be shown as large enough for both Caltrain and High-Speed Rail. In 2004, the Authority, to be sure, estimated that four tracks and two station platforms could satisfy all Authority trains in a revised operational plan. Those conclusions for the program-level process were based on a conceptual level of analysis; that is, rail tracks at First and Mission Streets constitute a conceptual operating plan, not, however, meeting an actual design standard or goal.
The Authority, released an updated business plan in November 2008, including current ridership and operational planning information. The Authority found it requires at least four platforms and eight tracks at First and Mission Streets (and any other potential station location) to accommodate 10 trains an hour arriving and departing the station by 2023 and 12 trains an hour in each direction by 2035. Ridership forecasts estimate 100,000,000 rides annually on high-speed rail by 2035. Stations in San Jose, Los Angeles and Fresno, for example, address such capacity; First and Mission Streets does not. Transbay Terminal Authority engineers revealed that fact only last January to the Authority and other interested parties such as Caltrans.
California and federal environmental laws, the Federal Railroad Administration, and the United States Environmental Protection Agency require analysis of all reasonable alternatives in order to reduce, as feasible, adverse environmental consequences associated with the development of high-speed rail.
In order to fulfill its legal duty and select the best possible location and design for the San Francisco station, the Authority began earlier this year a study of four alternatives, namely (1) the present railroad station at Fourth and King Streets, which can handle 12 trains an hour at peak times, (2) the current Transbay design at First and Mission Streets (which cannot), (3) the Beale/Main Street alternative, San Francisco’s previous preferred site, which contains space for all trains to come downtown and accommodate at peak hours (by 2035) 12 trains hourly and (4) splitting train service between the First and Mission and Fourth and King locations. (Incidentally, the cost of extending tracks 1.3 miles from Fourth and King Streets to First and Mission Streets in 2008 dollars is over $2,800,000,000; the cost of the entire first phase of high-speed rail from San Francisco to Anaheim, approximately 450 miles, is $33,000,000,000.)
In the aftermath of repeated demands from Transbay Terminal Authority’s retained lawyers and public relations “flacks” to eliminate from environmental analysis all options but First and Mission Streets, California’s Attorney General carefully examined that imperative and applicable environmental law, then informed the Transbay Terminal Authority, and all other interested parties, that the Authority cannot limit the alternatives to be considered in the project EIR/EIS to First and Mission Streets. The Attorney General notes that an alternative may consist of a variation on a proposed alignment, or a variation on a configuration of a station and its amenities, or may suggest a different location altogether for a station. Each option must be analyzed so that San Franciscans and all Californians receive the best possible rail service in the Bay Area and to and from Southern California. Nevertheless, institutional advocacy and political pressure, amounting almost to attempted intimidation, continues to fly in the face of the law and common sense. Whether it’s the Los Angeles Basin, the Central Valley, or the Bay Area, the Authority cannot waste billions of dollars on a faulty design or inadequate terminal location and will not do so. Our responsibility is to confer on California taxpayers a landmark infrastructure project on time and on budget. We will proceed diligently and with scrupulous care in conjunction with the Federal Railroad Administration and other federal agencies to do so using federal, local, regional, and private equity financing.
Quentin Kopp is a former San Francisco Supervisor and State Senator
About the Election
Reading the voter information pamphlet for the municipal election of November 3, 2009 reveals the relatively short list of local ballot measures but absolutely no contest for either of two public offices, City Attorney and Treasurer. Those could have been the subject of contested elections. For approximately 25 years, until completion of my last term as a California State Senator, I distributed voter recommendations regarding both City and State ballot measures. Even today, San Franciscans remind me of that endeavor, usually declaring that it assisted them in their election decisions. Voter reliance on recommendations represents the highest compliment an elected public official can receive. It means the people you represent trust your analysis of often- complicated ballot measures and associate themselves with your judgment. Such reliance means to me that the considerable time and effort that I devoted to analyze every State and City ballot measure was worth it.
I thought of those unsolicited, genuine expressions of confidence as I read City Proposition B. This would amend Section 2.117 of the San Francisco Charter to eliminate the limitation on no more than two administrative assistants or “staff members” per Board of Supervisors member. As always, I reflect on the history of a therapeutic provision adopted by voters some years ago, which current occupants of the Board of Supervisors seek to change. Bear with me.
The modern San Francisco Charter was promulgated by a devoted citizens’ committee and approved by voters in 1932. It provided a salary of $2,400 per year for each Board of Supervisors member that could not be changed without a voter-approved Charter Amendment. The position was considered part-time, for the obvious reason that the City and County of San Francisco’s Chief Executive Officer was an elected Mayor, who divided responsibilities with the Chief Administrative Officer, nominated by the Mayor and approved by the Board of Supervisors. Supervisors were legislators, not administrators. In fact, the Charter specifically barred Supervisors from trying to intervene in the hiring or firing of City employees or the letting of City contracts, or speaking at City commission or board meetings. Even to appear was considered “bad form.” Supervisors did not rely on taxpayer funds for livelihood. All eleven earned income to support their families and themselves in the “private sector”, a term fancied over the past three decades as an antidote to that other currently revered term, “public service.” Their salaries could only be changed by the San Francisco voters.
In 1956, the voters did so, authorizing an increase to $4,800 per year. In 1964, voters approved an increase to $9,600 per year. In 1967, legislation was enacted to enable each Board of Supervisors member to engage one administrative assistant. In 1972, the annual Budget Ordinance was amended to allow an additional employee, namely, a secretary. Throughout the turbulent 1970’s and 1980’s, each member functioned ably with one administration assistant and one secretary. Those salaries were as modest as the voter-sanctioned supervisor salary. There were no answering machines. Every telephone call received during regular business hours was answered either by the administrative assistant, the secretary or the Supervisor. Voicemail didn’t exist.
Several times during the 1980’s efforts were undertaken by aggrandizing Supervisors to amend the Charter to eliminate voter approval of salary increases and link Supervisor salaries to higher paid public positions such as Superior Court Judges’ salaries. Those efforts were understandably rejected. In 1982, after voters mandated my Presidency for a second time of the Board of Supervisors, I sponsored a Charter amendment to change the salary by an increase based upon the increase in the local Consumer Price Index (CPI) from 1964 to 1982. Beloved Board of Supervisors Budget Analyst, (Harvey M. Rose) calculated the Consumer Price Index figure as $23,924. My proposed Charter change, now embraced by then supervisor colleagues, was approved easily by understanding voters.
In the late 1990’s, however, a new generation of Supervisors, mostly without profession or business in which to earn a living, convinced voters their service was ”full-time.” Although voters had imposed term limits amounting to eight years upon Board of Supervisors members, the Supervisors persuaded voters to admit them to the Retirement System of the City and County, not withstanding the shortness of their “public service.” They then boot-strapped that tactic by altering the salary method of the Charter. Supervisorial salaries would be established upon the basis of comparing the salaries of other county Boards of Supervisors and using comparability as the measurement, similar to the hoary “like pay for like work” principle embedded in the Charter in 1932 for almost all City employees, except those with special compensation like municipal railway employees whose salaries were essentially set by computing the average of the two highest-paid public transit systems in the United States!
That, of course, has resulted in a current Board of Supervisors salary of almost $100,000 per annum. Additionally, supervisors serve on regional agencies such as the Metropolitan Transportation Commission, the Golden Gate Bridge, Highway and Transportation District, the Bay Area Air Quality Management District, Bay Conservation and Development Commission, Transbay Terminal Authority, Peninsula Rail Corridor Joint Powers Authority and, thus, receive additional “per diem” compensation based upon attendance at meetings of full governing boards and committees thereof. Although not at the level of State legislators, Board of Supervisors members today need not trouble themselves with businesses or professions – and they don’t.
Another change involved supervisors adding a third aide. Voters, however, removed that power by adopting Charter section 10.104, “allowing each supervisor two staff members”. (As of Nov. 1995, incidentally, under Section 2.203-3 the Charter authorized but one administrative assistant per member, non-civil service.) Obviously, appetites for staff are insatiable. Therefore, at the behest of a feckless former Board of Supervisors member (McGoldrick) whose departure emanated sheerly from term limits, on August 5, 2008 (before that “worthy” departed the Board of Supervisors) the Board voted 9-2 to place Proposition B on the ballot. Incidentally, the Controller, lamely states that Proposition B “would not in and of itself affect the cost of government.” Presently the legislative aide job classification pays from $69,500 to $93,100 annually and the total costs of those current 22 positions is approximately $2,300,000 annually including salary and benefits. The Controller refuses to inform us how much 11 new aides will cost us.
As we all know, Supervisors now are elected from 11 districts, not from citywide voters in an at-large system. Each district contains approximately 70,000 people, not 770,000 or 800,000, the latter, a figure which some “experts” estimate as the current San Francisco population. (I doubt it). Supervisors like John Barbagelata, Dianne Feinstein, Ron Pelosi, Peter Tamaras, Jack Molinari, Bob Gonzales, Terry Francois and Terance Hallinan represented our entire San Francisco population with two administrative assistants. History is instructive. In 2000, voters emphatically rejected the same proposition, also Proposition B, and that was after the advent of both “voicemail” and answering machines, which, according to friends and neighbors, appear usually in operation during afternoon business hours at the Board of Supervisors.
Apropos of history, for those who still may be interested, I will vote against Propositions A, C and E, as well as B. Proposition A, establishing a two year budget bill and a 5-year financial plan, constitutes another guise for avoidance of continuing annual responsibility. I voted on 15 Annual City Budget Ordinances and 12 Annual State Budget Bills. Those were arduous responsibilities, trying to evaluate estimated revenue and expenditures annually. Can you image trying to do so over two years in the future? Allegedly brilliant economists of our nation disagree about the probable end of our current economic conditions. Do you think amateur elected officials can do better with two-year cycles and five-year financial plans? It’s tough enough to do it one year in advance. Ordinarily, I’d vote for Proposition C, which allows sale of the naming right to Candlestick Park. I won’t do it, because it contains the policy of requiring one half of all revenue from such sale to be divided between the 49ers and the City into a “special funding” account, the bane of financial public policy decisions. The money from the sale of the name should be deposited either into San Francisco’s General Fund or the Recreation and Parks Department, without specifying its finite use.
I shall vote for Proposition D simply because I don’t find billboards offensive, especially on Market Street and private property. (I don’t like the idea of selling advertising on public property. And I know-Candlestick Park signifies an exception). I’ll vote against Proposition E for that reason.
Don’t, however, rest your decisions on my personal predilections; even though California law renders voting decisions confidential to the voter, I don’t mind revealing my choices, which with my status as a retired judge don’t mean much anyway.
Breaches, Bridges & Buses
Within the past month, two disclosures reminded me of more history concerning San Francisco and the Bay Area. In order, one related to the West Portal Branch of our citywide library system. In 2000 voters approved a general obligation city bond issue of $106,000,000. That evidently wasn’t enough; in 2007, tens of millions of dollars were additionally approved by San Francisco voters, long known for their admiration of San Francisco’s library system. A recent examination and audit of the Department of Public Works (DPW) and the so-called “Branch Library Improvement Program” by the City Controller disclosed that not only was the West Portal Branch Library remodeling late in completion, but also costlier to taxpayers than the City’s contract with the general contractor allowed. In bygone days, the Department of Public Works, under the leadership of the late Myron Tatarian and City Engineer Robert Levy of Lakeshore Acres insisted upon compliance with standard public contract provisions which included all monthly schedules of expenditures and completed work, rigid evaluation of change order requests and additional costs relating thereto and meticulous final inspections of the public project before acceptance by the City.
Regarding the West Portal Branch Library project, the City Controller discovered that the DPW had waived $405,000 penalty payment required of the contractor for late completion of the project. Also discovered was a failure by the DPW to demand compliance with expenditure details, schedules or thorough final inspection. The Dept. of Public Works’ excuse was that such taxpayer protections were “overly burdensome…” The investigation also revealed that DPW did not even verify the validty of the contractor’s insurer, instead approving an insurance company which was in violation of state law. Mind you, this was an audit by the City Controller, not the famed Board of Supervisors Budget Analyst, Harvey M. Rose, whose time and effort since his first engagement by the Board of Supervisors in 1971 has produced tens, even hundreds of millions of dollars in savings for concerned taxpayers. In the post-WWII era of Controller Harry Ross and Controller Nat Cooper (his successor) it was common for controller audits to expose misspending. The advent of Mr. Rose inspired cooperative efforts by former Controller John Farrell. It is not fantasy to observe that episodes like those described relative to the West Portal library project spawned taxpayer revolts, which thirty years ago resulted in passage by voters of Proposition 13.
A second event affecting Golden Gate Bridge toll payers was identified by my old friend, Ken Garcia in the September 25 edition of the once-vaunted Examiner. He informed us that the Golden Gate Bridge, Highway and Transportation District may raise that bridge’s toll for passage even beyond its present $6 per trip. Mr. Garcia asserted that the GGB Board of Directors promised previously not to increase the toll to $5. Readers may recall that bit of history. Mr. Garcia reminded us that the GGBH&TD was created to operate a bridge, “not a transportation agency with a fleet of ferries and buses and annual budget problems.”
That reminded me sharply of my efforts to secure the promise to San Francisco and other Bay Area residents at the time of its creation by the legislature in the mid 1930s. Old-timers and students of this niche of Bay Area history will recall that the energetic notion of spanning the Golden Gate from San Francisco to Marin County evolved during the Great Depression. A bond issue payable from toll proceeds was authorized by all counties between San Francisco and the Oregon border (under legislative authorization) except Humbolt County, which didn’t want to risk charging its residents property taxes for a major project that might not succeed. That’s the reason the swollen 19 member governing board of the District consists of representatives from San Francisco, Marin, Sonoma, Napa, Mendocino and tiny Del Norte Counties, but not Humbolt. The covenant with taxpayers arose from expectations that once the bonds were repaid from toll revenue the district would cease as a public entity and the bridge would be transferred to the state for maintenance and operation. It is, after all, part of US Highway 101. The bonds were repaid with interest in the late 1960s. Instead of dissolution, district board members with legislative allies, succeeded in expanding their power to operate a public transit system consisting of buses and ferry boats. Both systems require subsidies for operation. That’s the reason for the $6 toll which continues to exceed the $4 toll on the state-owned and operated bridges crossing San Francisco Bay.
Twice during my State Senate service, I introduced bills to transfer the bridge to the California Department of Transportation for operation and authorized the North Bay counties to establish their own transportation system. Instead of charging San Franciscans to defray the cost of public transit in Marin, Sonoma and Napa counties, the taxpayers of those counties could do so themselves. That legislative initiative was thwarted easily by GG Bridge district board members who inveighed their legislative representatives to bar abolition of the district and assumption of public transit responsibilities by those counties primarily benefiting from them. I thank Ken Garcia for reminding me of my legislative failure in that respect. I can assure readers I didn’t win ‘em all.
Been there, done that!
In a time of financial turmoil, nationally and globally, California has been beset with the failure of revenue to satisfy expenditure expectations of a state containing over 38,200,000 people. Three times in the last 13 months the legislature and Governor have enacted budget bills purporting to comply with the generally accepted accounting principal that a budget bill should be balanced, meaning that proposed state expenditures should be paid from estimated state revenues. The first of such budget bills was enacted nearly three months late in September 2008 for the state 2009–10 fiscal year; beginning July 1, 2008 and ending June 30, 2009. By the beginning of calendar year 2009, it was apparent estimated expenditures would exceed estimated revenues, so the legislature and governor enacted last spring a revised budget bill. The fiscal year 2009-10 Budget Act was finally adopted July 28, 2009, again based upon the implicit (and explicit) representation by the Governor and legislature that revenues would pay the proposed expenditures.
The results have been discussed by scores of interest groups, from cities, counties and school districts to non-profit entities and community action groups. My immediate experience as a retired Superior Court Judge in the Assigned Judges Program parallels other Californian’s to a lesser degree. The courts will close one day per month until June 30, 2010. The Administrative Office of the Court instructs presiding judges in each of California’s 58 Superior Courts not to request a retired judge to substitute except if an active judge is absent for medical reasons and then only from an immediately adjoining county, so as to reduce reimbursed expenses.
The entire process reminds me of my legislative experience from 1986 until 1998. Our State Constitution (Article IV, Section 12) provides that within the first ten days of each calendar year, the Governor must submit to the Legislature, with an explanatory message, a budget for the ensuing fiscal year “containing itemized statements for recommended state expenditures and estimated state revenues.” The Constitution further declares that if the Governor’s recommended expenditures exceed estimated revenues, “…the Governor shall recommend the sources from which the additional revenue should be provided.” Manifestly, the import of Section 12 (a) of Article IV provides that the Governor shall recommend and the Legislature shall adopt a Budget Act with estimated state revenues sufficient to pay recommended expenditures. In Pete Wilson’s first year as governor (1991) the predicted gap between revenues and expenditure amounted to approximately seven billion dollars. At the time, state general fund expenditures amounted to approximately thirty eight billion dollars. The gap was closed by Governor Wilson and the Legislature. Again, in 1992 the forecasted gap between revenue and expenditure amounted to approximately fourteen billion dollars. The problem was solved by approximately seven billion dollars of eliminated expenditures and seven billion dollars of increased revenue, principally from higher state income tax rates. By 1994, under Governor Wilson’s stewardship and assisted by legislative leadership, California possessed a small, but noteworthy, estimated surplus. State income tax rates were reduced.
It was during that period that I began promulgating state constitutional changes relative to the annual budget bill. Our constitution since 1974 has required the legislature to pass the budget bill by midnight on June 15 of each year. The rationale is to enable state agencies 15 days to prepare for their financial and operational responsibilities in the next fiscal year, commencing July 1. In my legislative experience the June 15 deadline meant nothing. Not once in those twelve years was the budget bill passed by June 15th. Therefore, I began my budget bill revision measure by changing the June 15 deadline to June 30.
One of the banes of the annual budget statute arises from the requirement of a two-thirds, super-majority vote to approve the annual Budget Act. That constitutional clause is found in only two other states. Like much law, it arises from an historical event. Sales taxes weren’t allowed in California until 1935, the depression era. As a part of the constitutional inclusion of sales taxation in Article XIII of the State constitution, a compromise requiring a two-thirds approval of the annual budget bill was also included. Although the Democrats had regained the control of the Assembly by 1997 and controlled the State Senate during my entire service as an Independent in the legislature, I argued to Republican colleagues that they would not always be in the minority and that their budgetary axe would be gored someday by Democrat refusal to supply a two-thirds majority vote for a budget bill. My proposed constitutional amendment, therefore, repealed the super-majority vote requirement on the budget bill and substituted the commonplace simple majority. I also mandated a reserve fund each year amounting to five percent of the General Fund expenditures. (Consider that the 2009 -2010 California budget General Fund expenditures amount to about 110 billion dollars). My proposal also granted the Governor after January 1 of the calendar year unilateral power to reduce expenditures if it appeared that estimated revenues would not pay all the expenditures, which had been estimated some six months or more previously.
Finally, on the theory that a legal sanction must accompany every law, I added a provision forfeiting the salaries of all legislators for each day after June 30th in which a budget bill had not been adopted.
In order to alter the state constitution, any change must be submitted to voters for approval by a two-thirds majority vote of each house; voter approval requires but a simple majority. Twice I introduced such legislation. I was successful in obtaining two-thirds Senate approval each year, but failed in the Assembly each time. You can imagine the reaction of some legislators to the idea that if the law were not obeyed, a penalty would befall them. Members argued they should not be penalized because their legislative colleagues refused to comply with the law. Contrarily, I emphasized that non-compliance with a law almost always brings a consequence; the legislature as an institution represents no exception.
I am reminded of those unsuccessful efforts by the current clamor to change the two-third majority voting requirement for an annual budget act. You can draw your own conclusion as to whether doing so without the “bells and whistles” I attached to my legislation is merited.
A similar clamor exists with respect to Proposition 13. Taxpayers and property owners who did not pay property tax in the 1970’s probably don’t comprehend the popular sentiment that triggered Proposition 13. Property tax assessments of homes increased on a steady basis in the period I served on the San Francisco Board of Supervisors. Market value of those homes increased. It was, however, a “paper profit”, affecting many retired homeowners living on Social Security or pension income. A homeowner could not capture the increased market value until sale of the home. Nevertheless, homeowners paid a soaring property tax based upon the yearly assessment increases. The Honorable Edmund G. Brown, Jr. was the Governor. I personally recommended to him that he establish a commission of property tax experts to devise an equitable rearrangement of taxing “paper profits.” He ignored the idea. I introduced, and the Board of Supervisors passed, a resolution urging the Governor and legislators to alter property taxation so that homeowners could accumulate their property tax debt, payable from the proceeds of the eventual sale of their homes. That was, of course, also ignored.
Proposition 13 then qualified for the June 1978 statewide ballot by the initiative process. Once it qualified, the Governor and Legislature tried mightily to divert support for Proposition 13 with a tepid alternative. Proposition 13 passed strongly.
There are, to be sure, a few inequities in Proposition 13. If a residence changes ownership by sale, the purchase price becomes the assessed value. Residences change ownership more frequently than the business property, owned by corporations. I sought in the legislature a rational change for real estate owned by a corporation, so that change of ownership would be deemed if 50 percent or more of the common stock of the owner corporation changed ownership. Despite logic, the idea failed. I note proposals today for a constitutional convention, which include efforts to do exactly what my failed bill would have done. I smile. Been there, done that. Similarly, some argue for a “split roll”, which means taxing commercial property at a higher rate than residential property. Good luck. Been there, done that – unsuccessfully.
In fact, I am now tempted to reiterate the old refrain that, “The more things change, the more they stay the same.”
Where’s the Brotherhood?
Brotherhood Way is a very well traveled street West of Twin Peaks containing six religious institutions, five sectarian grammar schools, four Sabbath religious schools and one Masonic Temple. It wasn’t always known as Brotherhood Way; prior to 1958, the thoroughfare was called Stanley Drive. Under the leadership of then Mayor George Christopher, unquestionably the best business administrator to lead San Francisco in the post-World War II era, the City and County of San Francisco transferred all the property on the south side of Stanley Drive, which it owned except for the present location of St. Thomas More Roman Catholic Church and school, to religious and educational entities, including the Grand Order of Masons in 1957 and 1958, with the unanimous acquiescence of the Board of Supervisors. Stanley Drive’s name was changed to Brotherhood Way by a duly adopted resolution of the Board of Supervisors. The intent was clear: Brotherhood Way connoted City government’s intent to devote the entire block between Lake Merced Blvd. and St. Thomas More church to a diverse assembly of religions and accompanying schools.
To further that intent, the Board of Supervisors in the 1970s rejected efforts to purchase and develop for housing of senior citizens a portion of a parcel on the south side of Brotherhood Way. The religious institutions flourished, building beautiful places of worship and schools on land essentially donated for that purpose by City Hall. On the other side of the street, Parkmerced and other property owners treated their real estate in a manner compatible with Brotherhood Way’s purpose, eschewing development in the neighboring park placement of Benny Bufano’s world famous statue, “Peace.”
Almost five decades later, in a sorry episode demonstrating disregard for history and the environment, the San Francisco Planning Commission granted permission to a developer to build 182 residential units on land referred to as 800 Brotherhood Way. It did so without requiring an Environmental Impact Report, instead allowing the developer to submit a so-called mitigated negative declaration, notwithstanding the project’s frontage at 3711 19th Avenue or the cumulative effects of traffic, noise and other environmental elements. The Planning Commission did so over the earnest opposition of the St. Thomas More Parish Council, Congregation Beth Israel-Judea, Calvary Armenian Congregational Church, St. Gregory Armenian Apostolic Church, KZV Armenian School, Lake Merced Church of Christ, Brotherhood Masonic Temple, the Greek Orthodox Church of the Holy Trinity and the Lakeshore Acres Improvement Club, of which I have been a member since 1973. An appeal by this congeries of institutions known as the Brotherhood Way Coalition to the Board of Supervisors was rejected. The Coalition’s suit in San Francisco Superior Court and review by the Court of Appeal failed, the Planning Commission having approved with specific conditions the Conditional Use of the parcel by the developer on May 5th 2005 and the Board of Supervisors having rejected on August 16th, 2005 the Coalition’s request for relief.
The development itself and the Conditional Use Authorization violated the limitations of the Residential Mixed Low Density and Residential Mixed, High Density district controlling the parcel. A principle condition imposed on the project sponsor was that it “provide and maintain publicly accessible pedestrian paths from Brotherhood Way through the site to MUNI routes on Gonzales Drive and Font Blvd.” In the Planning Department’s own words, the reason for the imposition of such conditions was to improve transit access for such residential development and to “provide social connections between residents of the project and surrounding residential development.” In other words, project sponsor was required to obtain an easement through Parkmerced’s lands so as to furnish access to the Municipal Railway for the buyers of the 182 planned units. That has never happened.
Under the Planning Code, a Conditional Use Permit expires in three years. That is, the project must be commenced and completed in this instance by May 18, 2005, three years after Planning Commission grant of this deviation from the San Francisco planning code. The Planning Code also provides that authorization of a change in any condition previously imposed in authorizing a Conditional Use shall be subject to the same procedures as a new Conditional Use, namely, approval by the Planning Commission.
After the approval, the developer/project sponsor failed to secure the necessary easement to provide for the pedestrian connection to the MUNI although its lawyer wrote the deed of sale for his client. To overcome such failure, the project sponsor then requested, without notice to the Brotherhood Way Coalition or its constituent institutions, a “Letter of Determination” regarding such condition of approval of the Conditional Use Authorization for the 800 Brotherhood Way development. In violation of §Sec 303 (e) of the San Francisco Planning Code, which confers on the Planning Commission the sole power to grant any such absolution, Zoning Administrator Lawrence B. Badiner issued a letter on November 7, 2008 deleting such condition and instead allowed fulfillment of such condition by construction of a pedestrian pathway to within 10 feet of the Parkmerced property line. Badiner sent no copy of his November 7, 2008 letter to any religious or educational entity on Brotherhood Way.
Subsequently, a coalition member discovered Badiner’s illegal action. At a February 26, 2009 meeting of the Planning Commission, I brought it to the attention of the Commission, asking whether the Commission knew its powers had been usurped? Commission members did not know usurpation had occurred. On motion of Commissioner Gwyneth Borden the Commission ordered a public hearing on the action. Unfortunately, more time elapsed before such hearing occurred on May 28, 2009. In the interim, acting on reports of similar previous actions by Badiner, I asked City Attorney Dennis Herrera if he knew of an apparent practice by Badiner to authorize Conditional Use deviations without Commission action. He did not.
On May 28, 2009, Badiner fell on his sword, admitting that he violated §Sec. 303(e) and apologized three times for doing so.
I recommended and requested Commission action to vacate and set aside the November 7, 2008 change in the project sponsor’s pedestrian walkway easement requirement through Parkmerced. Other persons testified, including the project sponsor’s attorney, who uttered the false assertion to the Commission that the condition only consisted of building a pedestrian walkway to the Parkmerced boundary, not through an easement across Parkmerced to MUNI bustops. (A state bar referral might be in order for that lawyer’s misleading statement to a public forum.) The Planning Director stated that since Parkmerced needed a Planning Commission permit to rearrange numerous residential units therein, that would provide opportunity to persuade Parkmerced to grant the failed easement. (The Planning Director repeated that threat of intimidation in a conversation with others and me after the hearing, thus showing a willingness to extort a condition from Parkmerced in its permit application process.)
The lessons are clear: present day bureaucrats care little for San Francisco’s brotherly history West of Twin Peaks and care equally less about fine points of the code under which they operate. Compliance with the Planning Code rests mostly on citizen vigilance at City Hall — and that is difficult in the lives of everyday people, working and otherwise. While even as a retired judge in the Assigned Judges Program, the Code of Judicial Ethics precludes comment directly about non-judicial matters, exceptions exist in instances of neighborhood issues, I can participate and have done so, because it affects my Lakeshore Acres neighborhood and my synagogue, Congregation Beth Israel-Judea. And I have been pleased to do so with all the religious and educational representatives of theBrotherhood Way Coalition, which will continue to insist upon probity of the Planning Department and the Zoning Administrator, hoping that the Planning Commission, Board of Supervisors and City Attorney will do likewise.
Quentin Kopp is a former San Francisco Supervisor, and State Senator
Remembering Gene McAteer...
As one reflects upon history, and especially San Francisco history, it is perplexing to realize that memories even in San Francisco wither and sterling leaders are forgotten. One example is the manner in which the San Francisco Unified School District has treated the legacy of the late (and great) J. Eugene McAteer. Gene McAteer was a San Franciscan, born in 1916, and raised in the Mission District. A superb football player, he graduated from Mission High School and entered the University of California at Berkeley. A guard in an era in which football players performed “both ways,” on offense and defense, he was a member of the Cal football team which defeated Alabama, 13-0, on January 1, 1938 in the Rose Bowl. During World War II, he served with distinction as an officer in the U.S. Navy. On discharge from the Navy, he returned to his hometown and entered the restaurant business in a partnership, which operated Tarantino’s Restaurant on Fisherman’s Wharf. Married to Frances Twohig, a Mission High School classmate, he enrolled and finished law school at night while operating the restaurant and raising sons Tom, Tim and Terry. After the Korean War broke out in 1950, Gene McAteer was recalled to active duty and eventually assigned to the Supreme Headquarters in France. Upon discharge, he was admitted to the State Bar of California and in July 1953, after the so-called Korean Conflict ended, was appointed to fill a vacancy on the San Francisco Board of Supervisors. He was elected to the Board later that year, in the November election, serving from 1954 to 1958. In 1958, he was elected to the State Senate, replacing the late Bob McCarthy, who ran unsuccessfully for the Democratic nomination for Attorney General. A strong force in San Francisco and the State Capital, whose Navy background endeared him to then-President John F. Kennedy, Gene McAteer aimed to run for Mayor in 1963. He would have confronted Member of Congress, John F. Shelley, but was dissuaded from the race in then-popular lore by President Kennedy on the asserted theory that Shelley, who had served seven terms in the House of Representatives, was entitled to the mayoralty as a matter of seniority.
The mayoral term of Jack Shelley having proved less than riveting, in 1967 Gene McAteer announced without equivocation his candidacy for mayor that November, only to die from a heart attack in May 1967 while engaging in his favorite sport, handball, at the Olympic Club. That eventually laid the foundation for Joseph L. Alioto, chairman of the McAteer for Mayor-campaign, to run for mayor successfully that November after Jack Shelley was persuaded by Democratic chieftains to withdraw. McAteer supporters comprised the nucleus of Alioto’s campaign and McAteer’s chief of staff, Bob Mendelsohn, was elected to the Board of Supervisors at the same time. Frances Mc Ateer, a high school cheerleader and all around athlete, served for over 10 years on the Recreation and Park Commission. McAteer’s sons achieved prominence in business and public school administration; Tim McAteer, a three sport Lowell High School athlete, is in the San Francisco Prep Hall of Fame. The McAteer family home, replete with swimming pool, on Santa Ana Avenue in St. Francis Wood, was occupied by Frances until her death a few years ago.
In 1969, the San Francisco School District built a new high school on Portola and O’Shaunessey Boulevard. It was rightfully named J.Eugene McAteer High School. McAteer High School opened as the only high school named for an actual San Francisco public high school graduate, and became an important part of San Francisco, containing a sturdy football field and track used by thousands of young San Francisco athletes over the years. Then, in February 2002, in that burst of revisionist history that has befallen other San Francisco landmarks like Army Street, the Board of Education decided to remove McAteer High School from its’ nomenclature, turning the school into a” School of the Arts” and relegating the McAteer name to an almost illegible afterthought as the “J.Eugene McAteer campus” thereof. With Gene McAteer dead and a changed San Francisco polity, no public indignation occurred. And, so it goes for San Francisco political history – sadly.
Noted in the last edition of this mighty journal was an account by Tony Hall of mismanagement of Treasure Island. Missing from the account was, again, history. If Hall’s analysis is accurate, an act of legislative history may be relevant. During my service as a State Senator, the closing of military bases throughout the country occurred. One of those bases was the Treasure Island Naval Facility, which included the command post for the Pacific Fleet. In all instances throughout the state of closure of Air Force, Army and Navy bases, legislation for redevelopment of such real estate occurred and the governing authority for such reclaimed real estate reposed in a congeries of city, county and other local elected officials. Such policy was based on balancing the power between various governmental entities and persons, rather than permitting one person to control.
Located within the City and County of San Francisco, Treasure Island was treated differently, not because of any desire on the part of the legislature, but because of the demand of the then-Mayor, operating through then Assemblywoman Carol Migden. Instead of a bill separating the governing board between the Board of Supervisors members and the Mayor, Migden introduced a bill conferring exclusive governance power upon the Mayor. Despite my efforts to secure parallel treatment respecting governance of the redevelopment of Treasure Island as the legislature had done elsewhere in California, the bill was eventually passed by the legislature and, curiously, signed by then-Governor Pete Wilson just prior to the last day for gubernatorial action. That legislative history should form the foundation for commentary about the present state of Treasure Island, perhaps even explaining a City government contract under yet another Mayor (the present one) which enabled the afore-mentioned Hall to leave his mayoralty-appointed post as then-Executive Director of the Treasure Island Development Authority with a severance payoff of $250,000. The idea of “severance payments” for City employees must stun members, like me, of the Retired Employees of the City and County of San Francisco; I suspect they notice also the $500,000 payoff handed Susan Leal last year, at At the time the current Mayor terminated her as General Manager of the Public Utilities Commission in favor of the then-City Comptroller. From a historical standpoint the concept of such severance payments flies in the face of sound civil service practices of yesteryear.
One of my noble disappointments from State Senate service involved my proposed constitutional amendment to revise in a logical way the process for enacting the annual State Budget Act, which requires a super-majority two-thirds approval of each house. Over the last several decades, and especially now, pundits, commentators and majority party members (usually Democratic) complain bitterly of the unjustification of such provision, noting correctly that only two other states require more than a simple majority for adoption of an annual budget. During my Senate service, I twice introduced constitutional amendments (1) to require a simple majority for passage of the Budget Act, (2) require an annual reserve equal to 5% of general fund expenditures, (3) alter the date by which the Budget Act must be completed from June 15 (a date never honored by compliance in over 50 years) to July 1, the commencement of state government’s fiscal year, and (4) require forfeiture of legislative pay for each day after July 1 until date of passage of the Budget Act. In order to submit a constitutional amendment to voters, a two-thirds vote of each House must be obtained. I was twice able to secure passage of my measure by the Senate, with even a couple of Republican votes, but never achieved the two-thirds margin in the Assembly, although closing to within 3 votes of doing so in 1998. I argued to Republicans that one day they would constitute the majority in the legislature, but would be frustrated on over the two-thirds vote requirement by the Democratic minority. Although persuasive to a few Assembly Republicans, that argument was always trumped by the forfeiture-of-pay provision, which reminds me of Proposition 1F on the May 19, 2009 Statewide Special Election Ballot. Proposition 1F merely prevents a salary increase for legislators and other state officers if the Director of Finance certifies to the California Citizens Compensation Commission that there “will be a negative balance on June 30 of the current fiscal year in the initial Special Fund for Economic Uncertainties in an amount equal to, or greater than, 1 percent of estimated General Fund revenues.” Historians can contrast a salary increase prevention device with salary default for failure to perform lawful budget obligations.
Looking Back and Looking Ahead
The last 30 days represent one of the most politically turbulent and tumultuous periods in our nation’s history, if I can be that bold, and surely in my adult lifetime. Born in 1928, and reaching a cognitive condition in time to hear parental conversations about the Great Depression, and reading voraciously the three daily newspapers in my hometown of approximately 210,000 people, (can you image three daily newspapers for such a relatively small population?) I possess beliefs which therefore may not be founded on informational or factual accuracy, or at least I possessed such beliefs until the current financial turmoil fell on us.
My steadfast hero was Franklin Delano Roosevelt, President of the United States; my developing creed emanated from his public and political policies. My father owned and operated a neighborhood drugstore, from about 10 in the morning until 10 at night, and if the soda fountain was doing a good business, he wouldn’t lock up the store until about 11 PM. My mother, an ace secretary, left high school after her junior year to work and contribute money to her two younger brothers’ higher education. She managed the household, except for a brief time in 1936 when she served as secretary to the local WPA administrator until forced to depart because she recommended non-Democrats for jobs.
Until recently, I didn’t realize the full implication of WWII’s effect on the national economy. I knew of hobos, tramps and the Civilian Conservation Corps (CCC). I didn’t, however, know that the stock market never returned to 1929 levels until 1954 or that national unemployment continued to hover around 15% until our entry into WWII. Compared to 2009, we were a much smaller nation of 130,000,000 people; yet President Harry Truman’s post-WWII commitment to reducing unemployment to 6% failed to convey to me the significance it contained for elders, who knew the pre-war plight of those Americans trying arduously to secure jobs. After all, from the time I was 11 years old I was employed in my father’s drugstore, starting at 25 cent per hour and rising by the end of the war to 65 cents an hour.
It is against that background and as Chairman of the California High Speed Rail Authority that I observe intensely the efforts of our President and other national leaders in government and private business to cure our economic debility and replenish our productive thrivingness and spirit. Now that California voters authorized issuance of $9,000,000,000 of state general obligation bonds to form the financial foundation of the California High Speed Rail Project’s first phase from San Francisco to Anaheim through San Jose, Merced, Bakersfield, Palmdale and downtown Los Angeles, the appropriation of $8,000,000,00 in the government stimulus bill by the Congress and President supplemented my confidence in eventual funding for that entire project first phase which costs approximately $33,000,000,000 . Although U.S. Department of Transportation eligibility guidelines regarding applications for funds from such appropriation will not be issued until May 17, 2009, the High-Speed Rail Authority will be ready, as indicated to our United States Senators, to request nearly $2,000,000,000 for various parts of the project’s first phase which either possess environmental approval already or can obtain it in order to commence various public works prior to the requisite end of the federal fiscal year 2012.
It may be my 1930’s teachings, but I believe governmental “priming the pump” functions as a genuine means of restoring economic confidence and financial improvement for our citizens. An ex-boxer family friend of the 1930’s often proclaimed to me, “keep it in circulation” meaning money. In that context, I nevertheless retain my concern that tax dollars be spent carefully, judiciously, without waste and in a manner that creates taxpayer confidence. I think it important that taxpayer institutions and officials confer good examples for the people who pay taxes.
I am thus especially troubled by non-payment of income and property taxes by nominees for high office. I am troubled also by the avowed intent of our local Department of Public Health to grant priority of taxpayer funds to immigrants, legal and illegal, and so-called “homeless” residents or transients on the theory they deserve such beneficial treatment more than citizens and impoverished, but working, families who are not homeless or even illegal immigrants. Such acts and statement give evidence of a distorted sense of principles that reduce the respect every public official and employee should receive. Even worse is San Francisco’s prosecutorial refusal to pursue criminal cases against deported aliens by notifying Homeland Security.
As a retired Superior Court Judge sitting on assignment by the Administrative Office of the Courts in San Mateo and other counties, I have encountered practices by financial and credit businesses which vex parties who are sued on mortgages or credit cards or other forms of debt . In 1990 as a State Senator, I successfully introduced a bill that requires a copy of a contract to be furnished by a bank, a builder, a credit card company, every type of business, to a person who signs a contract of any sort. Opening a bank account may seem straightforward, uncomplicated, but the document you sign to do so constitutes an enforceable contract. Until my measure took effect on January 1, 1991, many, if not most, people bestowed little attention, or thought to secure a complete copy of such a binding document. The importance of doing so is reflected on a regular basis in various civil lawsuits in California courts and throughout the nation. I have seen examples. If a credit card company sues a cardholder for non- payment of debt, the law requires the original credit card agreement to be introduced in evidence at any trial. The same applies to a mortgage, which consists of a promissory note and a concomitant deed of trust, signed by the borrower. We all know that mortgages, for example, have been sold and re-sold, collated as securities and then bought by corporate or individual investors. You would be surprised (and perhaps cheered) by the number of cases in which the plaintiff lender cannot produce the original note, or credit card agreement, deed of trust, or installment agreement. I have personally rendered judgment against banks, collection agencies and other entities, which sue on an alleged mortgage note or purchase contract, but cannot produce the original document. Instead, such entities rely on an administrative employee who testifies in a hearsay fashion about the custom and practice of maintaining copies of the document or “storing” them in a sophisticated computer system. For those who confront such claims, the lesson should be clear: Insist on your legal right to compel introduction in evidence of the original agreement, not an alleged copy from an employee who relies on hearsay documents, which are not admissible.
Finally, I record bemusement over contemporary political media, and cultural changes which may have contributed in an unnoticed way to our present financial dilemma and could continue to do unless checked by a stout grammarian instinct, which once formed the hallmark of American education, both secondary and higher. You need not listen even closely to cable television and radio “reporters” and announcers to realize that phrases once associated only with adolescent girls in the San Fernando Valley now blanket those airwaves. The most widely used (and abused) words are “like.” which serves as a feeble transition to another thought, “amazing” which Webster’s New Collegiate Dictionary defines as “to fill with wonder,” “incredible,” defined by the same tome as “too extraordinary and improbable to be believed,” and “you know,” which acts as an insipid delay tactic caused by lack of vocabulary. Then, we note now- clichéd phrases most often associated with politicians and their “spokespersons” such as “going forward” which probably means “in the future,” “move on,” which probably means “forget it” and “transparency,” which supposedly means taxpayers can obtain otherwise-secret records or documents that are clearly subject to California Public Records Act or the U.S. Public Information Act. The word itself is defined as “saving the property of transmitting light without appreciable scattering so that bodies lying beyond are entirely visible.” A synonym is “pellucid” “open” or “public,” as words to describe public records won’t do anymore. If it’s “transparent” you can probably bet a sawbuck it won’t be “open” or “public” as the law in simple words mandates, rather than “transmitting light without appreciable scattering….”
To ensure that we no longer need comprehend the language facility of John F. Kennedy, Franklin Roosevelt, or Winston Churchill, our current President, aspiring perhaps to eclipse his predecessor, the “decider” advises a nation that his putative selection of a non-taxpaying ex-Senator for Secretary of Health occurred because he (the President) “screwed-up.”
The Kindness of Strangers
My wife Mara and I enjoyed the pleasure of attending our first presidential inauguration, departing San Francisco on Friday, January 16th and returning Wednesday, January 21st. We were afforded seats at the January 20th Inauguration of the 43rd or 44th President, depending on method of calculation, through the offices of United States Senator Dianne Feinstein and her San Francisco Chief of Staff, and retired San Francisco Police Department detective Jim Molinari.
Through the kindness of such luminaries as my former State Senate colleague and current Chairman of the California Democratic Party, the Honorable Art Torres, Congressman (and former State Senate colleague) Jim Costa of Fresno, Congresswoman Jane Harmon of Los Angeles, my fellow California High Speed Rail Authority Commissioner and former legislative colleague from Costa Mesa, Orange County, the Honorable Tom Umberg and David Dean, Executive Director of the Texas High Speed Rail Authority, we were guests at numerous functions, including the California State Society Luncheon on January 18th, the so-called “California Bash” that night, and the Texas State Society “Black Tie and Boots” Ball featuring approximately 12,000 participants on Monday night, January 19th. We were fortunate to enjoy the hospitality of a 95 year-old cousin in the Northwest neighborhood of Washington. We relied primarily on Washington’s Metro system for daily journeys to and from events and the inauguration itself.
For the benefit of readers, let me recommend that no matter the manner in which you do so, please try to attend a presidential inauguration in your lifetime. Irrespective of your party affiliation (or in my case, no party affiliation) we are Americans, and there is no more breath-taking, felicitous and sentimental moment than the installation of a president for a four-year term. I was tearful, thinking of my immigrant WWI father, Mara’s Latvian roots and her two-year residency in a displaced person’s camp after WWII in the British sector of Germany and the educational, social and economic benefits our country has bestowed on all of us. Moreover, I heard not an unkind word during our entire 5 days in Washington. Instead, we were uniformly greeted by friendly strangers and Metro employees who exercised devoted care to ensuring proper Metro service for us every day. The experience was extraordinary. Reflect on the fact that not a single arrest was recorded at the inauguration, that about one million rides occurred on the Metro that day, all without incident or injury. Now, we convey our warm wishes for, not simply improvement of economic conditions, but the good and welfare of all Americans, based upon the wisdom, the patience, the endurance and the intellectual honesty of our new President and his appointees.
Although one wouldn’t know it from the daily newspapers, administration of criminal justice and law enforcement appears to have suffered in San Francisco in the post-election era. Sadly, on January 4, San Francisco’s Most Holy Redeemer Parish was defaced. A spray-painted message was discovered the next day leading the Chief of Police to urge vigilance concerning threats, suspicious packages and other “hate-based acts.” No apprehension of responsible persons has occurred. There has, however, occurred baffling efforts by the City’s Assessor to contrive inter-Archdiocese transfers of various real estate holdings as “change of ownership” so as to impose on the Roman Catholic Church high levels of reassessed property taxation. As an almost singular supporter in 1978 of Proposition 13 among all then-elected public officials in San Francisco, and a one-time State Senator who devoted legislative effort to ensuring proper rules respecting true changes of ownership of real property, I was struck by the Assessor’s effort almost as if it represented financial punishment of the Roman Catholic Church arising from election activity. As readers know, Proposition 13 protects homeowners from the ravage of “paper profits” on their residences, residences whose value has suffered in the past year sizeable diminution, unless a residence is actually sold. Proposition 13 also expressly provides for reassessment of property to its sale price in the event a residence is actually sold to a different party. The legislature extended the benefit of Proposition 13 to the purchase of property in other counties after sale of a residence, depending on whether a county desired to grant such benefits. San Francisco, for example, grants such benefits; thus, if you sell your home in SF, and buy a new home, the assessed valuation of your former home applies to your new home. Paper transfers occurred among Archdiocese properties. The inevitable result of the City Assessor’s transparent punitive action will be litigation. Litigation costs money. Taxpayers sustain the cost of litigation if the Assessor loses, as seems likely. Pity also the City Attorney who will represent the non-prevailing Assessor in such law suits.
Another sad disregard of history occurred during January. In November 2007, Board of Supervisors and Mayor submitted to voters a Charter Amendment consolidating transit and transportation activity under the Metropolitan Transportation Agency (MTA). That meant the Taxicab Commission would be merged in the MTA. As a matter of history, in June 1978 as a member of the Board of Supervisors, I effectuated a ballot measure, commonly known as Proposition K, which reformed the issuance of taxicab permits. In short, it treats taxicab permits as the public assets they represent, establishes a requirement that only a genuine taxicab driver can obtain a permit, charges that driver a modest fee based strictly upon the cost of processing his application, bars corporate ownership of a taxicab permit and imposes minimum annual driving requirements on all owners of permits.
In response to the expressed concern of many taxicab drivers and interested persons, on October 3, 2007 the Mayor and the then President of the Board of Supervisors stated in writing, that “the will of the voters” on taxicab issues, meaning Propositions K’s provisions, would be respected. In fact, Mayor Newsom stated in writing that while his intent was “to put all forms of public transit (including taxis) in the hands of professionals, it is also the goal to respect the will of the voters on Taxi issues.” He added: “we are not supportive of an effort to merge the Taxi industry unless proper guarantees are made to protect Proposition K.” He added in an letter to the executive director of the MTA and the executive director of the Taxi Commission: “Please keep our desires not to tamper with the intent of Proposition K in mind as you examine ways to streamline operations and develop a strategic business plan for this merge (sic).” Yet, some 15 months later, Mr. Newsom proposes that taxicab permits be auctioned by the City for $100,000 or more, claiming that taxicab permit buyers would still be subject to the annual driving requirements of Proposition K and its consequent ordinances. How many taxicab drivers can afford to buy a permit at $100,000 or more? Yet, an elected public official who memorializes a promise and then attempts to eviscerate it under the guise of an “auction,” would return the taxicab permit process to pre-1978 venality and allow doctors, stockbrokers, financial consultants, lawyers, business executives and corporations to own taxicab permits and lease such permits to plebian drivers? Apparently history means nothing compared to expediency.
Kopp is a former San Francisco
Supervisor, State Senator
and currently Judge.
A Little Perspective
AS 2008 CLOSES, SOME HISTORICAL EVENTS DESERVE PERSPECTIVE. One of those involved the self-serving aggressive attempt by the City of Daly City and unidentified developers to grab the land of California Agricultural District 1-A, better known as the Cow Palace. Comprising approximately 70 acres and located in Daly City and, to a minimal extent in San Francisco, for almost three- quarters of a century the venerable Cow Palace has represented to San Franciscans an entertainment forum of first rank and high quality. Besides the annual Grand National Rodeo and Junior Rodeo for young and old farmers, the Cow Palace has hosted championship basketball, boxing, ice hockey and wrestling, garden, dog and automobile shows, fish and game exhibitions, musical concerts and the annual Dickens Faire, which unfolds as the holiday season approaches.
Early in 2008, Daly City persuaded a state senator to introduce Senate bill 1527 to require the Cow Palace, which is managed by a nine member Board of Directors, appointed by the Governor, to sell its entire acreage to Daly City. After an outpouring of support by Cow Palace adherents, the bill was changed to require the sale of a 13-acre parcel to Daly City, the Cow Palace governing board having already for over a year attempted to negotiate with the Daly City Redevelopment Agency for the leasing of such premises on a 60-year basis. SB 1527 was subsequently changed further to require the Director of the California Department of General Services to enter into negotiations to sell that 13-acre parcel to any interested third party, except that the Daly City Redevelopment Agency had the right of first refusal, thus binding the discretionary power of the Department of General Services. Because of the compelling sentiment of Cow Palace supporters, the Governor vetoed SB 1527 on September 30, 2008, noting correctly that the measure ìcircumvents the stateís current competitive bid process and would potentially limit the stateís financial return for the sale of state-owned land without creating any added value for the surrounding community.î Meanwhile, the Cow Palace had begun and signed a letter of intent to lease such 13 acres to Cypress Development Company a nationally renowned firm whose principal is former Navy and Dallas Cowboys quarterback Roger Staubach. The lease term will be 60 to 66 years. The lease will enable the Cow Palace to remodel and improve with gusto its current structure, and thereby increase entertainment events, even beyond those loyal boosters who persisted in saving the Cow Palace despite an unremitting publicity campaign against its historical place in San Francisco and the Peninsula. The development project includes a supermaket, other stores and middle class housing.
Some readers may recall the efforts of religious and educational organizations along Brotherhood Way, respecting a proposed 182-unit development commonly referred to as 800 Brotherhood Way. That effort began four years ago. I participated because development adversely affects my synagogue at 625 Brotherhood Way and my residence in Lakeshore Acres. (The Lakeshore Acres Improvement Club initiated community reaction to the proposed project.) The Brotherhood Way Coalition asked for an Environmental Impact Report by the developer.
Brotherhood Way possesses a history perhaps unknown to many readers. Until 1957, it was known as Stanley Drive and all but one parcel was owned by the City. Impelled by then Mayor George Christopher and others, the City sold individual parcels to religious entities, including Holy Trinity Greek Church, the Church of Christ, the KZV Armenian School, the St. Gregory Armenian Apostolic Church, the Calvary Armenian Congregational Church, the Brotherhood Masonic Temple, and the then Temple Judea (now Congregation Beth Israel-Judea). Holy Trinity Church thereafter built the George and Tula Christopher School. The Church of Christ rented premises to Bridgemont Academy. The Brandeis-Hillel School was built on land of the Brotherhood Way Jewish Community Center and Congregation Beth Israel-Judea. Stanley Drive was renamed Brotherhood way fifty years ago in action by the Board of Supervisors and Mayor which identified it as a location for religious, educational and brotherhood institutions exclusively.
Notwithstanding that historical background the SF Planning Commission and Board of Supervisors rejected the Brotherhood Way Coalition requests for an environmental impact report, instead allowing the project to proceed with merely a mitigated negative declaration as to any adverse environmental effect. Disregarding neighborhood pleas for a full Environmental Impact Report under the California Environmental Quality Act, the Planning Commission imposed conditions for the issuance of a building permit as a conditional use authorization. (That means the development does not conform with the residential mixed low-density zoning for the site.) One of those conditions was the acquisition and maintenance of publicly accessible pedestrian paths from Brotherhood Way through the project site to Municipal Railway routes in Parkmerced. That is, the project owner needs an easement through Parkmerced. It is now revealed that the project owner failed to obtain such an easement. The space for which Stanley Drive was changed to Brotherhood Way may yet be treated as intended. The space which features a Benny Bufano ìPeaceî statue may yet be preserved.
A final historical note involves the SF Taxi Commission. After the insolvency collapse of the Yellow Cab company with its hundreds of taxicab driving permits (often called medallions) in 1977, I twice introduced an ordinance to render unlawful the sale of taxicab permits, require return of existing permits to the Police Department, authorize reissuance of such permits only to proven taxicab drivers to have a fee covering actual city government expenses in the issuance process.
After the then mayor vetoed each ordinance, I decided to enact such law by an initiative. (It was known as Proposition K.) Voters approved it overwhelmingly in the June 1978 election. Thereafter, the then permit holders, who were corporations, lawyers, real estate brokers, even doctors and nurses, many of whom lived out of state, and few of whom actually ever drove a taxicab, but instead made tens of thousands of dollars annually by renting the permits to actual drivers, pursued in state court and federal court suits to overturn Proposition K. They even sought United States Supreme Court intervention. They failed. At the same time, and thereafter, they tried on nine occasions to abolish Proposition K or dilute its provisions. The voters rejected such subterfuge nine times. During the era I was a California State Senator, the present Mayor introduced a law to replace Police Commission administration of Proposition K with a Taxi Commission. He did so against my advice. Taxi Commission membership included old and some new permit holders, the later of whom, have constantly tried to retain permits after the cessation of their driving career. The Taxi Commission is now dominated by those special interests, to wit, corporate executives and individuals angling to use medallions illegally. A recently-adopted charter amendment authorizes a Board of Supervisors’ ordinance to consolidate the Taxi Commission with the Metropolitan Transportation Authority, operator of the Municipal Railway. Both the Mayor and the President of the Board of Supervisors have stated publicly that the intent of such consolidation is not to change or repeal the taxi driver and permit protections of Proposition K. Skeptics believe otherwise and blame the true motivation for such an ordinance as authorization of the sale of these governmental permits on a private asset basis and an elimination of the current legal requirements that a permit holder must drive a taxicab personally a minimum number of hours per year. An MTA official recently declared: “when it comes to changing Prop K, raising fees, or adjusting how medallions are allocated, I can’t say that it’s not on the table ... I think that policy question will probably come post-merger.” It will be interesting to watch the Municipal Transportation Authority after we all enjoy a peaceful, healthy Chanukah and Christmas, with victories for USF basketball.
History Repeats Itself
If you live long enough, you do indeed watch history repeat itself in one form or another. On November 4, California voters command the opportunity to approve Proposition 1A, a $9,950,000,000 State general obligation bond to enable construction of the California High Speed Rail Project. Proposition 1A, which you will find in the slim Supplemental State Voter Information Guide, constitutes the financial foundation for the first phase of the Project from San Francisco to San Jose across the Pacheco Pass to Merced, Fresno and Bakersfield in the Central Valley, then to Palmdale, downtown Los Angeles’ Union Station (in 125 minutes) and Anaheim’s new transportation center (in another 20 minutes) at a cost of $33,000,000,000. With voter approval of Proposition 1A, design and engineering can be completed in 2009, construction begun in 2010 and the 220-mile-per-hour high speed train will be ready for usage to Los Angeles and Anaheim by 2018, with the possibility that segments such as San Francisco to San Jose in 30 minutes and Los Angeles to Anaheim in 20 minutes may be opened earlier.
As Chairman of the California High Speed Rail Authority, I am convinced that starting in 2009 the Congress and President of the United States will enact legislation providing at least $11,000,000,000 and perhaps as much as $17,000,000,000 to defray the first phase’s cost, with private investors (including pension systems such as the California Public Employees Retirement System) furnishing the balance of capital expenditure. Already, in early October President Bush signed a rail transportation bill which includes $1,500,000,000 for high speed rail. No state has achieved California’s status regarding high speed rail development for an eventual system extending to San Diego in the south and Sacramento in the north at an additional cost of approximately $12,000,000,000. California voters possess the power now to ensure federal and private funding by establishing the financial underpinning of Proposition 1A.
While opposition to Proposition 1A appears scattered and idiosyncratic, present-day vicissitudes in financial markets 3,000 or more miles from California cause some professional naysayers and even a few self-appointed journalistic sages to question affordability of Proposition 1A. A few iconoclastic critics, even in good faith and without the ideologue tenor of the Howard Jarvis Taxpayers Association (which succeeded in subverting the public’s best chance of reforming governmental eminent domain powers in last June’s statewide election) have expressed concern over whether the State’s general fund can sustain repayment of bond holder investments in the Proposition 1A bond measure. To that concern, State Legislative Analyst Liz Hill and Treasurer Bill Lockyer conclude that Proposition 1A would not exceed the State’s debt-service limitations under generally accepted public accounting practices that allow a maximum 6.5% of the State’s general fund expenditures for annual bond payments. The so-called debt-service ratio currently stands at 4.4% for infrastructure bonds like Proposition 1A and is expected to increase to a maximum 6.2% in 2011-2012 as currently authorized bonds and the Proposition 1A bonds are sold. Therefore, California can afford Proposition 1A.
Secondly, and equally as important, at a time of economic need Proposition 1A represents the very best governmental policy to invigorate the economy. The California High Speed Rail Project will create approximately 160,000 construction-related jobs and about 450,000-460,000 permanent new jobs thereafter. The multiplier effect upon the economy will be prolific. History so teaches us, not just nationally in terms of President Franklin Delano Roosevelt’s 1933 establishment of the Works Progress Administration (WPA), the Grand Coulee and Bonneville Dams, the Tennessee Valley Authority and similar public structure projects establishing employment for hundreds of thousands of Americans. Commentators and economists dubbed such projects “priming the pump”, as in giving life and energy to the economy. So, too, our forbearers in the Bay Area acted boldly and no differently. Reflect upon the fact that construction of the Golden Gate Bridge, based upon general obligation bonds supported by the counties of Marin, Sonoma, Napa, Mendocino, Del Norte and, of course, San Francisco, began in 1933 and culminated with the bridge opening in 1937. In that era of the same 1929 Wall Street collapse and later economic depression, the San Francisco-Oakland Bay Bridge was built. Think too about the Bay Area Rapid Transit District (BART) in November 1962 when a $792,000,000 general obligation bond was approved by 60% and more of voters in Contra Costa, Alameda and San Francisco Counties. Those projects all confronted skeptical critics, plus the inevitable self-appointed experts who claim knowledge superior to recognized professionals. Yet the people of San Francisco, the Bay Area and Northern California persisted. Consider for a moment our transportation predicament if BART had not been built. Some 46 years later Santa Clara County clamors for inclusion and extension of BART to San Jose. It’s axiomatic that every year of high speed rail delay produces an additional $1,000,000,000 cost. An October 2008 study sponsored by the Bay Area Council forecasts 55,000 high speed rail project-construction related jobs in the Bay Area alone. The proper question is: can we afford NOT to build high speed rail?
Additionally, the project contributes mightily to California’s legally-required mandate to reduce carbon dioxide emissions by 25% in 12 years, by 50% in 22 years, pursuant to 2007’s Assembly Bill No. 32, enthusiastically signed by the Governor for good environmental reasons. High speed rail operates electrically, eliminating about 12,700,000,000 pounds of carbon dioxide emissions annually, using one-third the energy of air travel, one-fifth the energy of automobile travel and reducing foreign oil imports by 22,000,000 barrels per year. That’s a reason the Sierra Club, San Francisco Tomorrow, San Francisco League of Conservation Voters, California League of Conservation Voters, Natural Resources Defense Council, Endangered Habitats League and Greenbelt Alliance, among others, support Proposition 1A.
Demographers predict California’s population in 2030 will comprise approximately 50,000,000 people. To absorb the transportation demands that high speed rail will satisfy by 65,000,000-105,000,000 rides annually, would require building 3,000 new freeway lane miles, 91 new airport gates and five new runways at a cost of two-three times the high speed rail project, which will remove nearly 70,000,000 passenger trips from our highways each year and attract millions of airline passengers, thus reducing airport delays. The economic benefits of the project constitute one reason for the support from the Greater San Francisco Chamber of Commerce, the Bay Area Council, the Redwood City-San Mateo County Chamber of Commerce, the Sacramento Chamber of Commerce, the Oakland Chamber of Commerce, the San Jose/Silicon Valley Chamber of Commerce, the Fresno Chamber of Commerce, the Greater Stockton Chamber of Commerce, the Long Beach Area Chamber of Commerce, the Los Angeles Area Chamber of Commerce, the North Bay Leadership Council, the Orange County Business Council, the California Alliance for Jobs, the California Labor Federation, the California Nurses Association, the San Francisco Labor Council, the International Union of Operating Engineers, the San Mateo County Central Labor Council, the California Professional Engineers in Government, the National Association of Railroad Passengers, the San Francisco Board of Supervisors, the California Transportation Commission, the City/County Association of Governments of San Mateo County, the Metropolitan Transportation Commission, the North Coast Railroad Authority, the League of Women Voters, San Francisco Planning & Urban Research, the American Lung Association, California Federation of Teachers and the Kern County Taxpayers Association and Sacramento City Taxpayers’ Rights League, together with federal, state and local elected officials from U.S. Senator Dianne Feinstein to the mayors of San Francisco, Los Angeles, Fresno, San Jose, San Diego, Bakersfield and political organizations such as the San Francisco Democratic County Central Committee and the San Francisco Republican County Central Committee. Forty years from now our descendents will thank us for finally producing a high speed rail system like those in 11 other nations, starting with Japan for the 1964 Olympic Games. Like California’s Argonauts of the 19th Century, our cry for Proposition 1A is “Excelsior.” Vote accordingly.
Since becoming a judge on February 1, 1999, I have learned that one of the most vexing aspects of modern society and the administration of criminal justice emanates from domestic violence. As the Honorable James P. Fox, San Mateo County District Attorney, has stated it is “often defined as a pattern of behavior in a relationship that is used to gain or maintain power and control over an intimate partner.” In San Mateo County Superior Court, in which I continue to preside over criminal and civil trials as a retired judge in the Assigned Judges Program (which means on assignment by the Chief Justice of the California Supreme Court), about 1,000 domestic violence cases are prosecuted annually. Prosecution culminates a lengthy, costly and time-consuming process which commonly commences with a 9-1-1 call to a police department or, in 57 counties, to the Sheriff. (The Sheriff of the City and County of San Francisco performs custodial duties only, either in the county jails or in courtrooms.) The report of a complaining victim of domestic violence is investigated either immediately upon a telephone call to the dispatcher, or soon thereafter as possible. Often the investigation involves interviews with many persons, not just the victim. Sporadically, it involves further violence aimed at a responding law enforcement officer or percipient witness. It invariably results in a police report which, in turn, requires time and concentration by a responding law enforcement officer. Occasionally, a supplemental investigation and police report result.
If the facts warrant it, the domestic violence complaint is transmitted to the county district attorney. A deputy district attorney reviews the written police report(s) and interviews investigating officers and witnesses before filing a complaint. Domestic violence can be treated as a misdemeanor; more often, it constitutes a felony, necessitating a preliminary hearing in which the district attorney’s office offers testimony of the investigating officer and perhaps one or more other witnesses to convince a Superior Court judge, acting as a magistrate, that a public offense has been committed and there is sufficient cause to believe the defendant guilty. The judge then orders the defendant to answer within 15 days to an information which must be prepared anew by the district attorney, filed with the clerk of the Superior Court and delivered by copy to the defendant’s attorney. In 90% of domestic violence cases, the defendant claims financial inability to engage an attorney. Under constitutional law, the court must appoint an attorney to represent him or her at the defendant’s first appearance in court. In San Francisco, that means the public defender; in San Mateo County it means a private lawyer from a panel of lawyers maintained by the county bar association. In any event, it entails more taxpayer expense.
The prosecutor and the defendant’s attorney then exchange pertinent documents and other information before a trial scheduled by a judge. Further trial preparation by both the district attorney and public defender occur. The court’s jury commissioner sends letter notices to numerous citizens, summoning them to the Hall of Justice on the date of trial. (All citizens, except law enforcement officers, are subject to jury service in the case. That includes judges, doctors, carpenters, technicians, professors, students, childcare workers, counselors, candlestickmakers.) The jury commissioner then assigns approximately 60 such citizens to the courtroom in which the trial occurs.
The courtroom clerk calls the roll of all prospective jurors and administers their oath to answer truthfully the questions asked by the judge and respective attorneys. Jury selection is tedious, requiring careful, sometimes repetitious, questioning of potential jurors and alternate jurors. A jury of 12 objective, impartial citizens is eventually selected and sworn in, together with one or two alternate jurors who will be available for substitution if one of the 12 is unable to serve to completion of trial. As can be easily understood, considerable public expenditures have already been incurred. The district attorney then presents the victim for testimony. In some cases, the victim decides not to testify or otherwise cooperate with the prosecutor. Various reasons exist for such refusal, including embarrassment, fear, loyalty. On the one hand, a victim wants cessation of the violence. Prosecutors normally inform the victim that she or he is not the person proceeding with the accusation and cannot order the district attorney to dismiss the case.
If, after all the time, money and effort invested in pursuing the case a victim refuses to testify, since 1991 California law flatly prohibits a judge from ordering incarceration of the victim even if the judge finds the victim in contempt of court for not testifying. In all other types of cases, refusal of a witness to testify, unless constitutionally protected by the Fifth Amendment right not to incriminate one’s self, evokes the power of the court to hold the witness in contempt of court and immediately order county jail confinement for a period not exceeding five days, which can be renewed until the witness does testify. That is, however, not the law with domestic violence victim witnesses. With a domestic violence victim witness, the court cannot order imprisonment; instead, the court commonly refers the victim to 72 hours of domestic violence counseling. Victims of domestic violence are often reluctant to testify because of incomplete information about court process and possible consequences of the criminal case. As noted, they may also fear retaliation by the defendant, but victim advocates can furnish accurate information about court process and aid the victim in establishing a safety plan, which enables the victim to assess realistically the consequence of testifying.
The court can alternatively require the victim to perform a maximum of 72 hours of appropriate community service. If, and only if, the court issues a second finding of contempt of court for refusing to testify, the judge may order county jail confinement for up to five days. Any such order is, however, automatically deferred or suspended for three days to enable the person held in contempt of court the second time to appeal to the California Court of Appeal. As noted by the staff analysis of the Assembly Committee on Public Safety, “...the current system seems to be working and has the necessary checks and balances necessary to provide justice.”
Nonetheless, without any data to provide a foundation for the contention that domestic violence victims are commonly imprisoned as a result of refusing to testify against a batterer, a witless local state senator introduced a bill (Senate Bill No. 1356) to abolish entirely the power of a judge to hold in contempt and eventually confine in county jail for up to five days a complaining victim who refuses a court order to testify against her or his batterer. The bill also removes the salutary legal provision of first referring the victim to 72 hours of domestic violence counseling or community service before a victim is called to testify a second time and refuses to do so, thus incurring the possibility of jail confinement for contempt of court.
Noting the abject failure of the bill’s sponsors to produce examples of judicial abuse of the ultimate confinement authority, the California District Attorneys Association surveyed all 58 California district attorneys and found but three instances of actual confinement to county jail of a domestic violent victim who refused to testify against her batterer. Note that the domestic violence victim counseling or community service provision of law was enacted in 1991. In my tenth year as a Superior Court judge, I’ve presided over numerous domestic violence cases and encountered reluctant victim witnesses. I’ve never utilized the incarceration power; I know of no such instance in the various courts to which I’ve been assigned by the Chief Justice, from San Diego to Riverside to Los Angeles to Santa Cruz to Sonoma, to Napa to Humboldt. I’ve never heard of any such instance in those or other courts.
Moreover, I served for nearly 30 months on the California Judicial Council Domestic Violence Practice and Procedure Task Force, whose January 2008 report was approved by the California Judicial Council this past February. At no time during literally tens of public hearings was any testimony received concerning judicial abuse of the confinement power or the possible sanction of incarceration for refusal to testify. I remain a member of that continuing task force which was appointed on September 6, 2005 by the Chief Justice to recommend ways to improve court practice and procedure in domestic violence cases. The task force mandate is to recommend fair, expeditious and accessible administration of justice procedures for litigants in domestic violence cases; yet we received not a single
Superior Court Judge Quentin Kopp retired from the San Mateo Superior Court in 2004, but has continued to exercise judicial responsibilities in San Mateo and other California counties as a member of the Assigned Judges Program. He is a former State Senator, 1986-1998, and San Francisco Board of Supervisors member, 1972-1986
Rod and Gun Club Endangered?
By Quentin Kopp
For long-time San Franciscans certain institutions possess historical and cultural values which apparently command no respect, much less even understanding of history, by modern day zealots and architects of revision. One such example involves the storied Cow Palace, which began operation in 1941 and has been the venue of musical, sporting, artistic, social and other entertainment events and conventions for 67 years.
Another blazing example relates to ill-disguised efforts to terminate the Pacific Rod and Gun Club use of facilities at Lake Merced. As an honorary member of the Pacific Rod and Gun Club and its neighbor since 1973, I believe I can comment upon the benign and useful presence of my neighbor, which has leased from the City and operated for nearly three-quarters of a century a modest portion of the western side of Lake Merced. Although the scheme to destroy the Cow Palace receives rather constant publicity, as surely befits an institution attracting over 500,000 visitors per year, the sly aspiration of ill-motivated city government and allied interests to abolish the Pacific Rod and Gun Club escapes attention.
In early April, The San Francisco Chronicle showed good sense in alerting San Franciscans and other Bay Area residents to the ill-disguised attempt to eliminate my neighbor, the Rod and Gun Club. That was almost immediately met by protestation from three of the ambitious perpetrators, who, describing themselves as “long-time advocates of restoring Lake Merced...” professed to work “collaborately with members of the gun club and their affinity groups and respect their point of view.” Notice the last phrase, to wit, “respect their point of view.” While extolling in a self-serving fashion their alleged personal efforts to bring “good health” to Lake Merced, they degrade the use of the Club’s 14-acre leasehold and the number of persons using the premises for sport shooting and social events. The purpose, however, of such self-proclaimed servants of the public at large appears clear to this long-time neighbor and admirer of the Club.
Here’s a rapid summary of recent history: approximately four years ago the San Francisco Public Utilities Commission began a study of Lake Merced. The professed theme was maintenance and improvement of Lake Merced. A so-called “Lake Merced Task Force” was organized. People who rarely visited or used Lake Merced and don’t live in our neighborhood comprise “task force” members. Moreover, the task force consultant just happens to work for San Francisco State, an identified potential Club predator. As authors of the aforementioned expiating article, San Francisco Beautiful’s executive director, a Golden Gate Audubon Society Conservation Committee member and a California Trout Program Director condemn the Club with faint praise, but their “open forum” article in The Chronicle gives them away. They confess to examining such uses to replace the Club’s leasehold as a “launching facility for local high school and adult rowing programs; a facility for recreational boat rentals; a nature and environmental center; a children’s play area; a restoration site for dune and wetland habitats; and a youth fishing program.” They then declare that the “suggestion” from unidentified persons of “room for a compromise where the gun club would share the site with other users raises serious questions.” (Emphasis added.) That’s the predicate for launching a diatribe urging that so long as “shooting continues to be the focus of the club’s program, only the rowing facility is even remotely likely to be compatible with it.” They exclaim that “safety around live shooting is a concern no one seems to be talking about” and invoke the imaginary allusion of a “small child enjoying the nature center” and being “accidentally shot.” Also highlighted are alleged issues of noise, residual impact from lead and broken clay targets that impact the birds and wildlife. . .” Use of inflammatory language by self-appointed experts about Lake Merced constitutes evidence of their true ambition and enterprise.
As a 35-year neighbor of the Pacific Rod and Gun Club and as an honorary member, I reject the fallacies of people who are not neighbors, who do not utilize Club premises, who probably do not use Harding Golf Course and have never fished in Lake Merced and who are not competent witnesses in any legal sense, but instead rely upon hearsay and speculation. These destroyers of the Club might turn their attention to the history of San Francisco Police Department youth fishing programs. Why don’t these critics of the Club restart one with all of their institutional resources and the tax and rate payer moneys of the Public Utilities Commission? Next, why don’t they resuscitate the boat rental operation which existed for more than 50 years at Lake Merced, an operation used by all three of my children during the 1960’s and 1970’s. If critics actually live near the Rod and Gun Club, they know that any noise from recreational skeet shooting is de minimus . I hear it occasionally; it is more than bearable. In fact, it signifies recreation and instruction to youth on the safe, proper operation of a weapon. In 35 years of membership in the Lakeshore Acres Improvement Club, I’ve heard no complaint about the Rod and Gun Club. To the contrary, Club members devote time and attention voluntarily to teaching young people (and adults) safe, proper skeet shooting. Its membership, which hasn’t just been “generous in allowing occasional use of the property by others” (as attested by the “task force” members), has affirmatively opened the Club leasehold for regular use by others, including the marvelous barbeque and dining room facility. It’s a club which has, as a San Francisco Examiner reader observed in an April 28 letter, support from “preteen girls, disabled people, women, school teachers and others from all walks of life.”
And, if more evidence is needed then the hundreds of club supporters who appeared at an April “task force” public meeting, then the sinister intent of such “task force” aspiration to eradicate the club becomes more transparent. Contrary to the “task force” members who charge in The Chronicle that “things aren’t as simple as The Chronicle suggests”, thing are inescapably simple. Here’s the situation in a nutshell: The task force wants to cause closure of the Club and forfeiture of a relatively small portion of the 200-acre Lake Merced shoreline because task force members don’t like guns, even if used for recreational purposes.
As with most subtle and hidden attempts to change history and substitute heralded activity, vigilance to protect neighborhood history and the Club is required. Do not allow another San Francisco neighborhood tradition to be ruined by City Hall. The Rod and Gun Club today, the fly-casting pool and archery range in Golden Gate Park tomorrow.
California's High-Speed Rail Dilemma
While it’s almost hackneyed to comment upon California’s failure to develop systems to accommodate a surging population, now over 37,000,000 people and expected to reach 50,000,000 people by 2030, the hand-wringing cannot be dismissed summarily. Through robust economic times and feeble economic times, the Golden State continues to entice citizens and aliens alike. Nowhere has California (and America) fallen so far behind the rest of the developed world as in the field of high speed rail transportation. I’m not talking about conventional 50-60 mile-per-hour (or less) trains; I’m talking about 200-220 mile-per-hour systems which began 44 years ago in Japan with the Shinkhansen system, spread in 1981 to France with the renowned TGV (Train à Grande Vitesse) high speed train from Paris to Lyon and in 1991 to Germany with the highly-regarded ICE system, and has since spread to England, Holland, Belgium, Switzerland, Spain, Italy, South Korea and Taiwan. Taiwan’s newly-inaugurated high speed train transports riders from one end of the nation to the other in 90 minutes. Argentina is building the first Western Hemisphere high speed rail system between Buenos Aires and Cordoba, scheduled for completion in 2010. Africa and the Middle East are forging routes connecting the Moroccan cities of Tangiers and Marrakech, with lines to CasaBlanca and Rabat; South Africa plans a Johannesburg-Durbin line; Russia promulgates high speed lines from Moscow to St. Petersburg and Moscow to Helsinki, including high speed rail to the Black Sea resort town of Sochi in time for the 2014 Winter Olympics.
To state the obvious, California’s economic vitality depends upon capitalizing on electrically-powered high speed rail. Meeting the needs for a safe, reliable travel alternative, which delivers predictable, consistent travel times and reduces air pollution without an operating subsidy from taxpayers, is critical for the sturdiness of our regional and statewide economy. Using proven, steel wheels-on-steel tracks train technology, first constructed by Japan for the 1964 International Olympics, a California high speed rail system will contribute to satisfying forecasted intercity travel demands in 2020 at 2-3 times less the cost of trying, against environmental odds, to build airports and freeways.
Since introducing the legislation creating the California High Speed Rail Authority as a State Senator in 1996, I have actively emphasized the most logical transportation option for Californians, carrying passengers about 425 miles in its first phase of development from downtown San Francisco to downtown Los Angeles in two and one-half hours, with an additional 15 minutes to Anaheim and its glorious new transportation center. Subsequent second phase extensions of service to San Diego and Sacramento will produce a nearly 800-mile system spanning not just San Francisco and Los Angeles, but the Central Valley cities of Bakersfield, Fresno, Merced, Modesto, Stockton, Sacramento as well as San Diego, Riverside, San Bernardino and Palmdale. While the entire statewide project contains an estimated construction cost of $42,000,000,000, the first phase from Anaheim and Los Angeles to the Bay Area will cost approximately $30,000,000,000.
Appointed to the California High Speed Rail Authority by the State Senate in June 2006 and elected and still serving as Chairman since August 2006, I have presided over an evolving financial plan, encouraged by the Governor, his Authority appointees, enthusiastic legislators and business leaders, which generally rests on a one-third contribution from California, one-third from the federal government and one-third from private investors. That’s right: private investors. State Treasurer Bill Lockyer advises that approximately 37 funds devoted to investment in public structures now exist, ranging from Wall Street firms to the California State Teachers Retirement System and the California Public Employees Retirement System.
In 1994 an act of Congress, sponsored by then Congresswoman Lynn Schenck of San Diego, now a member of the High Speed Rail Authority Board of Directors, identified 11 high speed rail corridors in the United States, including Southern California to the Bay Area. Last November, Congressman Jim Costa of Fresno County introduced legislation establishing a National High-Speed Rail Authority and companion legislation to provide money to build such systems throughout the United States. No other state has progressed in high speed rail development to the extent of our Authority. On November 4, 2008, for example, California voters can approve a $9,950,000,000 bond measure to commence construction of the project’s first phase and establish a predicate for matching federal and private dollars. If approved by voters (a late February 2008 poll demonstrated a 58% “yes” vote), we will begin construction by early 2010, using bond proceeds to complete the engineering design which has been delayed by insufficient annual state general fund appropriations. Actual construction will require approximately 8-10 years for completion.
The second phase of extension to San Diego and Sacramento will cost in future dollars another approximate $12,000,000,000, but require only an additional five years for completion. A one-way fare for the electrified, 150-minute ride from San Francisco to Los Angeles, will cost $55 in future dollars. Thus far, no organized opposition to the bond issue exists.
Moreover, so-called “clean up” legislation, introduced by Assemblywoman Fiona Ma, a distinctive high speed rail system advocate, and 15 coauthors, removes any legal impediment to private investment, prohibits no more than 10% of the bond proceeds for environmental studies, planning and engineering activities, requires our Authority, prior to awarding a construction contract for each segment of construction, to present a detailed funding plan for that segment and identify the full cost of segment construction and the sources of all money needed to complete such segment. It mandates priority in segment selection to those segments which require the least amount of bond funds as a percentage of total construction costs. The Authority must also consider the utility of that segment for other passenger rail services and ensure that any other passenger service provided on such segment won’t result in any operating or maintenance cost to the Authority. To preserves grasslands, the bill also bars any station between Merced and San Jose.
Even with improvements in automobile fuel efficiency, high speed rail will save 22,000,000 barrels of oil per year by 2030. Comparing the energy required to transport a passenger one kilometer, the high speed train needs but one-third of the energy of an airplane and one-fifth of an automobile trip. High speed rail regenerates about 20% of its electrical energy by consumption banking. It decreases air pollutant statewide and in all regional air basins by approximately 17.6 billion pounds of carbon dioxide per year by 2030. Those reductions in carbon dioxide emissions increase with higher ridership such as the estimated 100,000,000 trips by 2030. With fully grade-separated tracks, and a 50-foot right-of-way, most of the system will be at-grade alongside existing rail and highways.
California would need construction of nearly 3,000 miles of new freeways, plus five airport runways and 90 departure gates in the next 22 years, at a cost of $82,000,000,000, to match the capacity of California’s high speed rail project. Ridership engineers forecast annual gross revenue of $2,600,000,000 to $3,900,000,000 by 2030 and net operating revenue of approximately $3,000,000 annually to repay bondholders and private investors. Moreover, no existing steel wheel-on-steel tracks system in the world requires an operating subsidy from taxpayers.
Based upon tedious preparations since 1996, the time is now for Californians to protect their transportation future with passage of the high speed rail bond issue this November. Do it for our children and grandchildren.
(Superior Court Judge Quentin Kopp retired from the San Mateo Superior Court in 2004, but has continued to exercise judicial responsibilities in San Mateo and other California counties as a member of the Assigned Judges Program. A former State Senator, 1986-1998, and San Francisco Board of Supervisors member, 1972-1986, he was reappointed by the State Senate to the California High Speed Rail Authority for a four year term commencing January 2008.)
Superior Court Judge Quentin L. Kopp (Retired) lives in Parkside District of the West of Twin Peaks
Life in the Fast Lane
In January, one of our daily newspapers which occasionally, like a blind pig finding an acorn, identifies taxpayer waste and abuse, reported that the Board of Supervisors engaged in fewer meetings while receiving vastly higher compensation than ever before the relatively recent imposition of election by district. Specifically, in 2002, Charter section 2.100, establishing the compensation and salary of the 11 Board of Supervisors members, was rendered obsolete by a Charter amendment that essentially delegated to the Civil Service Commission the power to set Board of Supervisors compensation based upon supervisoral salaries in other counties, larger and smaller in population. I am bemused and also reminded of the history of supervisoral compensation, a history which even under the constraints of the Code of Judicial Conduct, I believe I am permitted to recite.
For the unenlightened or newly born, I was a Board of Supervisors member for nearly 15 years. At the time of my election in 1971, the annual compensation was $9,600. Board of Supervisors members were not allowed membership in the San Francisco Retirement System, and no term limits existed for service on the Board. The 1932 reform Charter had provided annual compensation of $2,400 per year and in essence mandated voter approval of any change. Not until 1956, did voters increase the salary to $4,800. That was then increased by voter approval in 1964 to $9,600 per year.
Several attempts to alter and eliminate requisite voter approval of compensation increase were thereafter in the early 1980’s thwarted by voters. One such effort attempted to make the salary of the then (and present) part-time supervisors the same as a Superior Court judge. Other gimmicks were assayed, but voter perception acutely rendered them unsuccessful. I opposed them all as subterfuges.
In 1982, having become president of the Board of Supervisors by virtue of the Charter Initiative Amendment mandating the supervisoral candidate receiving the highest number of votes be selected as president, I proposed an increase in salary from $9,600 yearly to $23,924, based solely and simply upon the increase in the Bay Area Consumer Price Index from 1964 to 1982, compiled by the United States Department of Labor. That index increase was certified by our always-reliable budget analyst, Harvey Rose. The charter salary increase was then easily approved by San Francisco voters. It was a system voters manifestly understood, because it made sense and maintained taxpayers decisional power.
All of that changed with the 2002 charter amendment which divested voters of any power or control. In the voter information pamphlet for that 2002 ballot measure, the then-supervisors claimed that historically “. . .the board was made up of wealthy aristocrats who visited City Hall once a week to check in”, a flagrant campaign distortion and untruth. In the era of the 1970’s and the 1980’s, every supervisor worked for a living except Dianne Feinstein whose then-husband was a doctor, certainly not a “wealthy aristocrat.” Supervisors were not members of the Retirement System. Notwithstanding the salary, supervisors met 52 Mondays a year, served on three committees each and were present in their offices actually answering the telephone at least half of every working day, all without impersonal “voicemail.” Some tenacious supervisors took the time to read calendar item files even on a Saturday or Sunday to prepare for the weekly Monday board meeting. There were “no vacation” or “holiday” meeting cancellations. If Monday was a legal holiday, the board would meet on Tuesday. It was called civic duty and public service.
Then, as now, the board of supervisors, as the legislative branch of government, possessed no administrative authority. All such authority under the Charter reposed in the Mayor, designated as the chief executive officer of the City and County, whose compensation was understandably fixed in accordance with the Salary Standardization Ordinance and who was required to devote his entire time and attention to the duties of office and not to any other occupation or business activity. No similar provision existed then (or now) for supervisors, who are understandably not obligated to devote their entire time and attention to the duties of office, because a mayor is obligated to do that. Unlike the 57 other counties in California, San Francisco, as a city and county, elects a chief executive officer. In the other 57 counties, no elected chief executive officer exists and supervisors serve not only legislative functions, but also act as administrators.
Prior to 2002, voters had also in the 1990’s enacted a Charter provision limiting supervisoral service to two four-year terms. Thereafter, in a peculiar twist, voters approved a charter amendment allowing Board of Supervisors members eligibility in the generous San Francisco Retirement System, notwithstanding the maximum eight-year permitted service.
While many of the supervisors from the pre-1982 era are no longer alive, those citizens familiar with the foregoing history should be forgiven for scratching their collective heads over the present day annual supervisoral salary of approximately $100,000 per year, together with fewer meetings, all resulting from the grant of supervisoral compensation authority to the Civil Service Commission. Some might comment that it has certainly produced a predictably different result.