Who’s Dumping Grandma?

The Shame of Laguna Honda

By Patrick Monette-Shaw

Plans at the Department of Public Health are, apparently, to place 34 of its “behavioral health” patients into Laguna Honda Hospital (LHH), possibly placing more psychotic patients into the mix with the frail elderly and disabled. History repeats itself with the proposed reconfiguration yet again.

On April 20, San Francisco City Attorney Dennis Herrera launched an investigation into whether Nevada’s primary state psychiatric center, Rawson-Neal Psychiatric Hospital, had engaged in patient “dumping” by sending patients out of state using one-way bus tickets. A San Francisco Chronicle article on April 21 quoted Herrera as saying that the practice of psychiatric patient dumping is “shockingly inhumane and illegal.”

 

Herrera’s concern appears limited to in-bound patient dumping and the increased costs to San Francisco for caring for psychiatric patients. But Herrera has been strangely silent regarding out-bound patient dumping from San Francisco to other jurisdictions, and potential patient dumping between San Francisco facilities. His hypocrisy is breathtaking.

This is the same hapless Herrera featured in the article “High Costs of City Attorney’s Advice” in last month’s Westside Observer.

The Chronicle article also reported that Paul Boden, the director of a nonprofit that highlights civil rights abuses against the homeless, the Western Regional Advocacy Project, said “it’s a little hypocritical of San Francisco officials to feign shock at the Las Vegas hospital’s [patient dumping] practice when [San Francisco officials] too, hand out one-way bus tickets to homeless people.”

The Department of Public Health (DPH) is proposing to re-configure the Mental Health Rehabilitation Facility (MHRF) on the San Francisco General Hospital campus, renamed the Behavioral Health Center (BHC) in order to be politically correct, into a residential care and respite care facility, and transferring 34 behavioral health patients to Laguna Honda Hospital (LHH)

Is transferring behavioral health patients to LHH a form of patient dumping into a setting where they may not receive the appropriate level of mental health care?

Battery Against LHH Staff

Alerted this April that LHH had accepted transfer of about 11 BHC patients during 2012, and that an Institutional Police Officer had informed SEIU members at LHH in October 2012 that assault cases at the facility had drastically increased, many were concerned. When it was learned that a food service worker was assaulted on the job in May 2012, subsequently required shoulder surgery following the battery, and has yet to return to work 10 months after being attacked, concern mounted. The worker was so badly beaten that emergency room staff treating her were shocked by her injuries, and the obvious emotional trauma.

She entered a locked dementia unit at LHH — the North Mezzanine, which serves patients at risk of wandering, elopement, or harm — she was assaulted when she encountered a patient who was supposed to be being watched by a “sitter.” The North Mezzanine unit has traditionally housed and cared for demented, but ambulatory, patients, it is a locked unit implemented to protect patient safety.

But LHH placed behavioral health care patients on the North Mezzanine, possibly agitating demented patients. The patient who assaulted her was finally sent on a “5150” psychiatric hold to SFGH after going on another rampage. A separate patient who had been discharged was eventually readmitted to LHH, despite being a sexual predator.

An investigation revealed that the injured staff member is now suing the City, possibly alleging negligence and mishandling of the situation following her assault and battery. The lawsuit appears to be sealed, most likely to protect patient privacy, even though the patient has reportedly since died. As a reminder, assault is any reasonable threat of physical harm to another person; battery is actual physical contact and actual harm.

Staff Retraining Required

Her battery case may not be the only one, but her assault was a big deal in LHH. Multiple meetings were held to calm staff, and hospital administration spent a lot of money to have all employees go through SMART training — staff training presented by a licensed Psychiatric Technician on how to remain safe around violent patients.

SMART training is definitely not part of the training typically provided to staff in long-term care skilled nursing facilities; it is more typically presented to staff working in psychiatric and mental health settings. The SMART training at LHH was introduced in 2005 to deal with its then-new patient population during the ruckus over implementing the “psycho-social rehabilitation” model of care exported to LHH when Mozietta Henley, RN, PhD was shunted from the MHRF to LHH, toting along her “BioPsychoSocialSpirtual (BPSS)” model of care proposal that was never tested or implemented at the MHRF.

Henley’s model of care comically became the basis for a small California HealthCare Foundation grant LHH’s Mivic Hirose was awarded for “Social Rehabilitation.” [I was there: Hirose’s January 2005 grant ended as a notorious flop, probably an embarrassment to the California HealthCare Foundation, and created a ruckus at City Hall.]

This followed on the heels of former Director of Public Health Mitch Katz’s nervous announcement on October 20, 2004 during LHH’s Executive Committee meeting of his “vision” that LHH would become a “social rehabilitation facility for the homeless poor,” a statement the City soon denied had been made, but the cat was out of the bag since numerous LHH staff had heard Katz speak clearly. Previously, the not-too-esteemed Dr. Katz lured the MHRF Blue Ribbon Committee into believing that the “future LHH” would provide “the same kind of services as offered at the MHRF.” If the City accepts DPH’s proposal to reconfigure the MHRF and dump more psych patients into LHH, we’ll have come full circle to Katz’s prediction of offering MHRF services at LHH.

Uptick in Sheriff’s Statistics

Alerted that an uptick in assaults at LHH may have occurred between calendar years 2011 and 2012, Sunshine records requests were made to the SF Sheriff’s Department, knowing that asking LHH’s administrators for this data would meet with dead silence, if not endless delays and denials.

Data provided by the Sheriff’s Department on May 21 shows that between 2011 and 2012, battery incidents increased at LHH by 18.2%, from 22 to 26 such cases, which is statistically significant. Across the same time period, “disturbances by resident” incidents summarized on the monthly Sheriff’s Activity Reports increased 227.8%, from 115 to 337 at LHH, and “disturbances by visitors” increased 309.4%, from 32 to 131 cases.

It’s no wonder that in October 2012 an Institutional Police officer from the Sheriff’s Department advised SEIU members working at LHH that assault cases had drastically increased.

Three Questions Lead to Bullying

Laguna Honda staff brave enough to ask questions are frequently targeted for retaliation. Indeed, the culture of staff intimidation was increased soon after Hirose was appointed CEO in 2009, and after Slavin came on board in 2007 to “stop the negative news about Laguna Honda” for his benefactress, former City Attorney Louise Renne. The intimidation was designed to silence and weed out any remaining staff who dared to question agendas that violated State laws and existing hospital policies.

Randy Ellen Blaustein, a therapeutic recreation therapist on the North Mezzanine unit who worked at LHH for eight years, raised three questions about the mixing of ambulatory demented patients with patients having psychiatric diagnoses from the BHC transferred to the North Mezzanine. She and the physician assigned to the North Mezzanine raised concerns and protested placement of inappropriate patients, indicating the two patient populations don’t thrive well together because the behaviors of people with dementia agitate psychotic people, and then psychotic patients want to harm the demented ones.

Blaustein noted the North Mezzanine physician had complained to hospital administration about no longer being able to provide input to admission decisions to their unit, and protested inappropriate placements, but was ignored.

During a key meeting with hospital administration, Randy apparently asked three questions that landed her in a lot of trouble:

1) Why hadn’t LHH’s Administration honored its vow not to place residents with histories of physical aggression and violent behaviors on the North Mezzanine?

2) Why did the unit no longer have input into admission processes? and

3) Why wasn’t their unit granted a lower census, since they had been afforded that in the old facility, given their patient population?

Apparently, someone reported to her supervisor, Bill Frazier the Director of the Activity Therapy Department, that Randy had “overstepped boundaries; was negative and didn’t offer solutions; wasn’t supportive of the new LHH; and (gasp!), had insinuated that Administration didn’t know what they were doing.” Instead of supporting Blaustein, Frazier asked her to cease asking contentious questions in meetings. Randy says she had previously gotten into trouble for upsetting Dr. Colleen Riley, LHH’s Medical Director, in another meeting.

“With severe dementia, less is more. I’ve never heard of any other facility that places nearly 60 ambulatory people with severe dementia in the same living area, with psychotic people in the mix,” Blaustein says. “The North Mezzanine received new admissions that required 1:1 ‘sitters’ at all times, because of their physically aggressive behaviors, placing other residents and staff at risk.”

After Clarendon Hall closed, LHH never re-created the three locked psych units that had been on the second floor of Clarendon. Many of LHH’s staff, including Blaustein, believe that’s, in part, why the new LHH is such a mess.

Another source reports that the staff member who was assaulted, subsequently requiring shoulder surgery, who is now suing, was assaulted by the North Mezzanine patient who was supposed to have a 1:1 sitter, but somehow got out of the inner door to the unit and attacked her before the outer door. So much for sitters.

Randy says that, after being repeatedly bullied, she chose to resign. Shortly before she left in mid-December 2012, a discussion began to consider changing the admission criteria to the North Mezzanine from “dementia” to using “cognitive impairment,” but she doesn’t know the outcome of that discussion. Like many former employees, Blaustein still cares deeply about LHH’s residents and staff, and their safety.

Earning His Comeuppance

Bill Frazier appears to be his own worst enemy. Comeuppance was bound to catch up with him, since what goes ’round, typically comes back ’round. All staff at LHH are required to take sexual harassment prevention training annually. It was widely known throughout LHH that during his 15 years as Director of Activity Therapy, a number of complaints were filed against Frazier by subordinates for such things as sexual harassment, unequal treatment, and failure to comply with union agreements. It is unclear how LHH’s Administration responded to these voiced concerns, since the reported pattern was observed to continue from year to year.

The training may have been lost on him, since in early 2013 he was overheard screaming in his office at an Activity Therapist for over ten minutes, and allegedly called her a “selfish bitch” — clearly a sexist term that has no place in public service.

This might have been brushed under the carpet as a “he said, she said” situation, except it was overheard and reported by a witness willing to come forward. This may have been the straw that broke the camel’s back, when Frazier suddenly vanished in February; some of his duties assigned to an acting director, and other duties split to other departments.

But a month after his disappearance, amid reports he would not be back, Frazier resurfaced in LHH’s Accounting Department in a newly-created position as liaison to Friends of Laguna Honda (formerly known as Laguna Honda Volunteers, Inc., the non-profit dedicated to LHH’s patients, that never needed for 50 years any “liaison” on LHH’s staff paid from taxpayer funds).

Frazier is now in charge of LHH’s Patient Gift Fund, which should not be a 40-hour full-time job. It’s akin to having the fox guarding the hen house. That LHH created the position as a soft spot for him to land may mean the hospital is worried about potential shenanigans with the gift fund, or worried that he knew too much about the great gift fund scandal of 2010. After supervising approximately 40 staff for over a decade and a half, he no longer has direct reports or anyone to supervise.

Out of County, Out of Mind

As just one example of out-of-county patient dumping, consider the case of a middle-aged gay man who suffered a stroke one evening while at a tavern, and was taken to SFGH where he languished for months. His close friends tried to get him admitted to LHH, but were rebuffed when told he needed too much physical rehabilitation therapy and couldn’t be sent to LHH. It’s well known that delays in receiving rehabilitative therapy following strokes leads to poorer patient outcomes and progressive functional decline.

He languished at SFGH for more months until being discharged out-of-county to a facility in Antioch that principally houses patients with dementia and Alzheimer’s. Since he is not demented, he now languishes in an environment in which he has nobody to communicate with, and his friends are unable to endure the obstacles of travelling to Antioch to visit him. His family is now trying to get him discharged to take him back to Ohio for care.

There are many other similar stories of patients needing skilled nursing care who are being dumped.

Many of LHH’s department heads are concerned about DPH’s decision to reconfigure the MHRF/BHC and place the 34 BHC patients into LHH. But they remember that when former LHH Executive Administrator Larry Funk opposed admission of violent patients to LHH, he was replaced and demoted.

Other staff who opposed admission of unsafe patients, including former Medical Director Dr. Terry Hill; Dr. Maria Rivero, LHH’s former admitting physician; and others, were forced to resign.

Many dedicated staff want to make LHH a safe place for staff and patients, and they’re concerned Herrera may not know LHH doesn’t have a psych license.

There are huge human costs to patients and staff from patient dumping, and Herrera is correct that the practice is “shockingly inhumane and illegal” — and obviously unethical. But where is Herrera’s concern for out-bound patient dumping to other counties, or internal dumping between DPH’s facilities? Is he concerned only about the cost of in-bound dumping, not the costs of out-bound dumping? How does Herrera’s ethical barometer work? Will Herrera ever look in the mirror and investigate patient dumping occurring in his home town’s back yard, or is he just grandstanding?

One test of Herrera’s ethics may involve how quickly the lawsuit filed by LHH’s battered staff member is resolved. Hopefully, Herrera’s underlings won’t introduce a flaky motion for summary judgment to stall her case and delay justice in a misguided attempt to scuttle her settlement, since that would only add further insult on top of injuries.

Monette-Shaw is an open-government accountability advocate, a patient advocate, and a member of California’s First Amendment Coalition. Feedback: monette-shaw@westsideobserver.com.

Laguna Honda Hospital’s Whistleblower Retaliation

The $750,000 Wrongful Termination Affair

By Patrick Monette-Shaw

Retaliation against Laguna Honda Doctors reveals how the City does business

Three years after jointly filing three whistleblower complaints with his colleague Dr. Maria Rivero, Dr. Derek Kerr’s wrongful termination settlement agreement was finally approved on second reading by San Francisco’s Board of Supervisors on March 26, awarding him $750,000 in monetary damages and other non-monetary awards.

Kerr’s settlement is one of the largest pre-trial (out-of-court) settlements in San Francisco history, although post-trial settlements have been larger.

Like many great mysteries, the great Laguna Honda Hospital Patient Gift Fund scandal of 2010 started with some curiosity, ethical concerns, and a compelling public-interest question: If the fund was nearing “bankruptcy,” what had happened to the money?

When former Laguna Honda physicians Kerr and Rivero put on their detective hats, neither expected that the age old question “show us the money” would quickly result in prompt retaliation, harassment, and wrongful termination. Neither did they expect Kerr would eventually win the largest pre-trial settlement in City history.

At the outset of their sleuthing, they believed our democracy functions only when citizens know what our government is doing. Believing public participation is essential to our democratic process, the two doctors take seriously their role to speak as patient advocates.

The sordid patient gift fund mystery started with a classic example of mismanagement over a small issue — reimbursement to Dr. Rivero for a mere $100 she had spent for tacos for LHH’s Spanish Focus ward in September 2009. The taco luncheon was to celebrate Fiestas Patrias — Latin America’s Independence Day — on a ward where the majority of patients had various forms of dementia. Told that the $2 million gift fund was nearing insolvency and couldn’t reimburse her, Rivero and Kerr became gumshoes when they requested and began researching 10 years of gift fund public records on October 31, 2009.

Official Apology from Laguna Honda to Dr. Derek Kerr: Buried in an update to the Health Commission, the apology, rarer than hen’s teeth and even more valuable, possibly saved the City more than a million dollars. Had they refused to apologize and continued through with the lawsuit, so many laws were broken that a jury would probably have awarded considerably more.

After examining thousands of pages of public records and placing serial records requests, the pair felt they had no ethical choice but to file an Ethics complaint on March 2, 2010, which clearly documented mismanagement of the patient gift fund. Just hours after submitting copies of their whistleblower gift fund complaint with the Ethics Commission on March 4, it reached the District Attorney and retaliation against them was set in motion, after they had simply exercised their First Amendment rights to free speech.

When San Francisco Department of Public Health officials wrongly retaliated by notifying Kerr orally on Friday, March 5, 2010 that his employment would be terminated, the officials had to have done so willfully. The officials should have known that they would be violating the First and Fourteenth Amendments to the U.S. constitution, other Federal law, at least three State laws, and San Francisco’s own Administrative Code that prohibits retaliation.

If the City had hoped to silence Kerr by firing him, the retaliation backfired, leading the whistleblower doctor to not only speak out more forcefully, the retaliation led to a huge settlement when Kerr prevailed in his wrongful-termination lawsuit.

As Dr. Kerr and Dr. Rivero wrote in their July 2012 Westside Observer article, “Secret Investigations,” whistleblowers should not be silenced in the resolution of the alleged misconduct they risked their careers to challenge. But that’s exactly what the City of San Francisco attempted to do: To silence the pair of doctors.

When Dr. Kerr and Dr. Rivero filed a trio of Ethics complaints, they believed that a collection of laws would protect them from retaliation. They believed that their fundamental First Amendment rights to free speech and their Fourteenth Amendment rights to due process would protect them from exposing fraud, waste, and corruption. They believed 42 U.S.C. §1983, which provides protections for citizen’s injured by deprivation of Constitutional rights and which provides redress for violations of due process, would help protect them. They hoped that the federal Whistleblower Protection Enhancement Act of 2012 might help protect them.

They believed that California Government Code §53298, California Health and Safety Code §1432, and California Labor Code §1102.5 — which each provide separate prohibitions against employee retaliation — would protect them.

And they believed the letter of the law in San Francisco Administration Code §4.115, Protection of Whistleblowers, which clearly prohibits termination, demotion, or suspension of City employees as retaliation for reporting waste, fraud, and inefficiencies in City government to the Ethics Commission, City Controller, District Attorney, or City Attorney.

Kerr and Rivero were wrong. None of these so-called “laws” ended up protecting them, and Kerr was forced to sue after being wrongfully terminated.

“I didn’t want to sue the City,” Kerr testified to the Board of Supervisors Rules Committee on March 7, 2013. “But Dr. Maria Rivero and I stumbled upon wrongdoing involving Laguna Honda Hospital’s CEO that we couldn’t ignore,” he testified. [Editor’s Note: Kerr was diplomatically referring to Mivic Hirose, LHH’s then- and current-CEO.]

A Public Spanking: Kerr’s Settlement Award

Kerr and Rivero were represented by the law firm of Kochan & Stephenson — Deborah Kochan and Mathew Stephenson — whose law practice is devoted entirely to representing employees who have suffered discrimination, harassment, retaliation, or — as in Dr. Kerr’s case — retribution for whistleblowing.

In addition to Kerr’s $750,000 settlement award, there were a number of non-monetary concessions that amount to a public spanking and public apology that are important to him, including:

1. A retraction of the “Statement Concerning the Laguna Honda Gift Fund” posted on LHH’s website by Katz and Hirose on September 2, 2010 alluding to Kerr and Rivero as “detractors” who had intentionally made false or inaccurate statements regarding the patient gift fund, since the September 2010 letter presented incorrect representations of the two doctors. The retraction will be via a notice signed by the Health Department’s current director, Barbara Garcia, to be posted on DPH’s web site within 10 business days following final approval of the settlement by the Board of Supervisors on March 26, for a minimum 10-month period.
   
2. LHH must install a plaque as soon as practicable in a clearly visible location, recognizing Kerr’s contributions to the hospital generally, and his contributions to LHH’s Hospice and Palliative Care Program in particular, in either LHH’s new Hospice or the gazebo/garden area, once it is completed.
   
3. LHH must provide Kerr, within 10 business days of the final settlement approval, a commendation letter signed by defendant Colleen Riley, MD, and LHH’s Chief of Staff, Steven Thompson, MD, stating that Kerr was a physician in good standing and widely respected by his LHH colleagues for his skills and accomplishments as a hospice and palliative care physician, and commending his work establishing and running LHH’s hospice and palliative care program.
   
4. LHH’s CEO, Mivic Hirose must announce at both the next scheduled meeting of the Health Commission and the next meeting of LHH’s 40-member Senior Staff/Leadership Forum, both the pending installation of Kerr’s plaque and read into the minutes the letter signed by Riley and Thompson.
   
5. The City must provide training to LHH’s Executive Committee regarding whistleblower rights, and First Amendment rights, of City Employees.

For their part, Kerr’s lawyers Kochan and Stephenson, note: “In our experience, negotiating non-monetary terms as part of a settlement is relatively rare. But here, we believed it very important that LHH’s administration publicly acknowledge the lies they told about Drs. Kerr and Rivero, as well as acknowledge the extraordinary service the two MD’s provided to the community during their long and distinguished careers at LHH.”

As for the two doctors, the monetary and non-monetary awards help convey that their complaints had all along been valid, and that wrongful, retaliatory termination and harassment had ensued.

The Defendants

Dr. Kerr — a former physician in good standing at Laguna Honda Hospital for over 21 years — filed a lawsuit seeking monetary and non-monetary damages, in part, to recover his good name.

Named as defendants in his lawsuit were the City and County of San Francisco and three named individuals — Dr. Mitchell Katz, former Director of Public Health; Mivic Hirose, RN, Laguna Honda Hospital’s Executive Administrator; and Colleen Riley, MD, Laguna Honda Hospital’s Medical Director.

Legal documents filed in the case show the defendants may have been motivated by retaliatory animus towards Kerr. They subjected him to retaliation for having brought complaints related to the care of patients and services at LHH. Had Kerr’s case proceeded to trial, it is very likely a jury would have concluded the defendants had been highly motivated to silence Kerr by subjecting him to retaliatory termination — and a jury would likely have awarded him much more than three-quarters of a million dollars, if for no other reason than sympathy for LHH’s patients.

Basis of Kerr’s Lawsuit

Dr. Kerr’s Complaint for Damages and Demand for Jury Trial lawsuit filed in San Francisco Superior Court on November 16, 2010 — subsequently transferred to a Federal District Court over First Amendment freedom of speech issues — listed five causes of action for violations of Federal and State law:

• • Deprivation of his First Amendment freedom of speech activities;

• • Deprivation of due process rights guaranteed by the Fourteenth Amendment;

• • Violation of California Government Code §53298 that prohibits reprisals against employees who file complaints regarding gross mismanagement or a significant waste of funds, or an abuse of authority;

• • Violation of California’s Health and Safety Code §1432 that prohibits discrimination or retaliation against employees for initiating or participating in proceedings relating to care, services, or conditions of a long-term health facility; and

• • Violation of California Labor Code §1102.5 that prohibits retaliation against any employee for disclosing information to a government or law enforcement agency when an employee has reasonable cause to believe that the information discloses a violation of state or federal statutes, or a violation or noncompliance with a state or federal rule or regulation.

Four of the five causes of action noted that the individual defendants participated in, directed, or knew of the retaliatory termination, and they collectively failed to act to prevent it. The causes of action also alleged that the gross retaliation by the individual defendants was done with malice, fraud, or oppression, in reckless disregard of Dr. Kerr’s constitutional rights.

The Set Up: Pretext for Termination

According to Kerr’s lawyers’ “Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment,” dated August 9, 2012, there were a number of reasons to suspect the defendants manufactured various pretexts to justify terminating Kerr.

It appears that Dr. Katz and Ms. Hirose had already determined by December 15, 2009 that they were going to lay off Dr. Kerr, hoping to shut him up. They needed a pretext, or pretexts, to do so, since Kerr and Rivero’s Sunshine requests on October 31, 2009 for patient gift fund records had put Katz and Hirose on notice that they were under scrutiny for a host of improper, if not illegal, practices. Hirose had to have known there was a lot at stake over her management, or mismanagement, of the patient gift fund, and that she was likely in deep trouble.

After all, by that point Kerr and Rivero had already filed in September 2009 two Whistleblower complaints about DPH contracts tainted by conflicts of interest, and had put the City on notice with their October 31 request for 10 years of patient gift fund public records that the two whistleblower doctors were serious about investigating the gift fund scandal. The defendants knew Kerr’s and Rivero’s records requests were very serious, and that the two doctors had a demonstrated record of investigating and thoroughly analyzing data. Hirose was on notice that she was under Kerr’s and Rivero’s microscope, and that it could be damaging to Hirose’s career.

Much of the City’s defense regarding Kerr’s termination was pretextual — pretexts the City manufactured to justify his dismissal, but were actually pretexts for retaliation. The pretexts to lay off Kerr included false claims that:

• Kerr was terminated as a mid-year budget savings reduction, claiming a budget crisis. During FY 09-10, DPH had nearly 8,000 employees on its payroll, but only one employee — Dr. Kerr — was terminated, ostensibly to “save money.” Notably, LHH’s Medical Services Department staff increased by 10% after Kerr’s layoff, and the physician who replaced him — Dr. Denis Bouvier — quickly zoomed to being the City’s highest-paid employee, earning $332,000 that year. In addition, the City added a Clinical Nurse Specialist, Anne Hughes, RN, PhD, to the Hospice’s budget, paying her $160,000 annually. LHH’s expenses on Hospice, and throughout the hospital, went up after Kerr’s “mid-year budget reduction” layoff. Obviously, money wasn’t the problem, but a clear pretext for retaliation.

• Kerr had limited himself to a 25-patient case load and was unwilling to take on additional patients, even if keeping his job depended on it.

• The hospice physician in the new hospital would have to carry a 60-patient case load, which didn’t apply to doctors on admitting wards, such as the Hospice where Kerr was an admitting physician.
  
• Kerr wouldn’t cover wards outside the Hospice, clearly disproven during depositions.
  
• The hospice would be undergoing a “fundamental program change,” which Hirose eventually testified there had never been any discussion about a “program change.”
  
• Kerr was terminated for budgetary reasons, which was false because when Kerr left LHH in June 2010, he was immediately replaced by another budgeted physician.

Another glaring pretext was Hirose’s claim that her decision in mid-December 2009 to terminate Kerr was based on information Dr. Riley had provided indicating Kerr was unwilling to take on covering additional Wards.

During depositions, Riley indicated that she hadn’t reported to Hirose Kerr’s reluctance to take on additional ward coverage until late February 2010, and that she, Riley, had never asked Kerr if he was willing to take on more patients if retaining his job depended on it.

During Hirose’s own initial deposition, she was unable to explain the impossibility of knowing in mid-December 2009 an allegation about Kerr from Riley, since Riley testified she had not shared this information with Hirose until late February 2010. The conversation with Riley that Hirose claimed to have relied on to terminate Kerr wouldn’t happen for at least a month until after she and Katz had already cooked up a pretext to eliminate Kerr.

In a follow-up to Hirose’s deposition nine months after her first deposition, Hirose sill couldn’t explain the “timing problem” that had made her explanation to terminate Kerr clearly impossible, given Riley’s false claim that Kerr wouldn’t take on additional patients. As set-ups and pretexts often are, Hirose’s claim that Kerr wouldn’t provide additional Ward coverage was completely insane.

Depositions: Discovery Mountain

Given public records in the case, the mountain of evidence against the City obtained during discovery and depositions in Kerr’s case was appalling.

During depositions and discovery, one defendant after another was crushed. Kerr’s lawyers deposed a dozen or so City employees; the City Attorney, in return, deposed only Kerr and Rivero. The City didn’t bother deposing Kerr’s union, UAPD, knowing that the union’s deposition would likely be damaging against the City. Kerr’s lawyers obtained approximately 3,000 pages of documents and issued multiple interrogatories.

Eventually, the City realized how bad their case looked for Laguna Honda and the Department of Public Health after its own witnesses performed poorly during depositions, and when plenty of smoke rose during discovery.

The City stonewalled Kerr’s lawsuit for two years, until his case was finally scheduled for jury trial on November 13, 2012. In mid-summer 2012, the City submitted a Motion for Summary Judgment that would have effectively dismissed Kerr’s case had the motion succeeded. Kerr’s lawyers submitted a Plaintiff’s Opposition to the City’s Motion for Summary Judgment on August 9, stating that given the “genuine issues of disputed fact … the defendants’ motion for summary adjudication … should be denied.”

Judge Claudia Wilken denied the City’s Motion for Summary Judgment in part and approved it on other parts in a 47-page ruling dated September 6, 2012. Wilken’s Order Granting In Part And Denying In Part Motion For Summary Judgment noted: “Plaintiff has offered sufficient evidence that he disclosed to his government employer possible violations of state or federal law based on the conflicts of interest involving Dr. Ja and Ms. Sherwood in [Kerr and Rivero’s] “A Job Half Done” critique, and that this was causally connected to his termination.”

Wilken also wrote: “[Kerr’s] media and formal complaints about the mismanagement and misuse of the Gift Fund also implicated several state laws … However, the public records requests related to the Gift Fund did not show any reasonable belief on Plaintiff’s part that he was disclosing alleged violations of [several] sections [of California’s Business and Professional Code]. The media reports about the Gift Fund were not complaints directed to a government or law enforcement agency, as required to come under the protection of [California Labor Code] section 1102.5(b).”

Wilken’s partial denial — which kept Kerr’s lawsuit alive and headed to jury trail — suggests the City then knew it had to settle with Kerr or risk a jury’s outcome, since it appeared Kerr had a potentially valid case. Only when the City realized it was on notice to proceed to jury trial did it conclude negotiating an equitable settlement with Kerr.

Laughably, the defendants appeared to have argued that Kerr’s speech was not protected by the First Amendment because it “did not address matters of public concern,” and would not reach the public at large, as if the raid of funds intended for patients didn’t concern public donors to the fund. The City also lamely tried to exonerate the defendants by claiming that Kerr’s and Rivero’s serial requests for gift fund records was not protected speech because it was “nothing more than a request for [public] information.” To support its defense, the City ignored that defendant Hirose had lied repeatedly about the status of the Gift Fund as it existed in late 2009, according to legal documents.

The City also attempted to exonerate Director of Public Health, Mitch Katz, claiming Katz wasn’t a policymaker “decider,” he was simply a decision-maker. Katz had delegated to Hirose the decision of which staff to lay off (terminate), but Kerr’s lawyers adroitly noted that layoff decisions were within the sole discretion of the Director of Public Health, Katz, responsibility for which could not be avoided by delegating that decision to Hirose.

The City also attempted to assert that the Civil Service Commission, not the DPH’s Department Head, had final policymaking authority to remove Kerr, though that assumption is supported neither by facts nor applicable law, since appointments of doctors are exempt from Civil Service merit system protections and, instead, serve at the pleasure of their appointing authorities.

The defendants conceded that Katz made a deliberate choice fingering Kerr for layoff from among several competing proposals on how to implement mid-year budget reductions. Katz could have, but failed to, rescind Kerr’s layoff notice. Instead, Katz participated in, and explicitly supported, Hirose’s decision to terminate Kerr.

Commenting on the discovery and deposition process, Kerr’s lawyer Deborah Kochan says, “The deceitfulness and small-mindedness exhibited by members of LHH’s administration and its Human Resources Department was, at times, breathtaking.”

“The City was boxed in by the inconsistent accounts of its own witnesses and the absolute nonsense of some of their testimony on critical issues,” adds Kochan’s law firm partner, Mathew Stephenson.

Acting Under “Color of Law”: A Federal Crime

42 U.S.C. §1983 provides that every person acting under the “color of law” who causes any United States citizen to be deprived of any Constitutional rights shall be liable to the party injured. “Color of law” involves actions taken that superficially appear to be within an individual’s lawful power, but are actually in contravention of the law. Acting under “color of law” is misuse of power, since it involves acting under real or apparent government authority by people who misuse their authority to violate rights guaranteed by federal law. Depriving a person of his or her federal civil rights under color of law is illegal and grounds for a cause of legal action.

The City acted under the color of law when it deprived Dr. Kerr of his First Amendment rights to freedom of speech. He was terminated, in part, because he had spoken out on various matters of public concern; he had spoken as a private citizen, not as a public employee; and his protected speech was a substantial or motivating factor in the City’s termination of him.

By reaching a settlement agreement with Kerr for monetary and non-monetary damages, the City has effectively acknowledged that Riley, Hirose, and Katz had engaged in misuse of power and misuse of their authority, depriving Kerr of his Federal civil rights. Despite this, Riley and Hirose are still employed at Laguna Honda Hospital, while Dr. Katz suddenly and mysteriously vanished.

Katz abruptly moved to Los Angeles after the LHH patient gift fund scandal exploded, and after Kerr and Rivero had filed their complaints about tainted DPH contracts. Katz’s sudden departure may have been coincidental, but it was completely odd, given he had previously stated he wanted to remain as Director of Public Health until the rebuild of the new San Francisco General Hospital was completed. It’s unknown whether the City Attorney, or other City Hall Family insiders, had advised Katz to quickly resign when the issue of his HMA consulting fees income became widely known.

During the Board of Supervisor’s Rules Committee meeting on March 7, 2013 at which it recommended approval of Dr. Kerr’s settlement agreement, Dr. Rivero testified, “What is the message you send when a CEO [such as Hirose] who retaliated against a whistleblower is still in office? It shows that you condone whistleblower retaliation and violations of laws that protect whistleblowers.” Rivero added, “It shows that you will accept executives who pilfer public funds donated to the poorest of the poor, violating a sacred trust.”

That Hirose and Riley remain employed at LHH is shocking in a City that pays a lot of lip service claiming it believes in transparent, open government and public accountability.

Series of Whistleblower Complaints

Drs. Rivero and Kerr filed three complaints through the Controller’s Office and the Ethics Commission regarding fraudulent practices in the Department of Public Health, including:

• On September 18, 2009, Kerr and Rivero filed their first complaint alleging an improper award of a contract to a City employee’s relative, regarding what became known as the “Ja Report.” In July 2009, Davis Ja and Associates prepared a report examining mental health services for LHH’s residents; defendant Hirose served on the selection panel that awarded Ja his first contract to survey LHH. The Ja Report recommended replacing Laguna Honda doctors with social workers, psychologists, and nurses.
  
  Drs. Kerr and Rivero regarded the reduction in the number of physicians as a threat to, and would negatively impact, the quality of patient care. The Ja report was so deeply flawed that Kerr and Rivero co-authored a 25-page Critical Analysis: The Ja Report – A Job Half Done, highlighting the flawed methodology of Ja’s report and recommendations. Of 22 physicians on LHH’s regular Medical Staff, 20 (91%) co-signed a petition supporting Rivero’s and Kerr’s thoughtful Critical Analysis, which detailed serious, ethical conflicts of interest involving several high-level managers in the Department of Public Health. Subsequently, Ja was awarded an additional multi-million dollar contract.
  
  Kerr and Rivero then discovered the additional contract had more than likely been steered to Ja by his wife, Deborah Sherwood, a senior manager in the Health Department’s Community Behavioral Health Services unit. Despite the two doctors’ numerous attempts to bring this improper and probably illegal contract award to the attention of City officials, nearly two years after filing their whistleblower complaint regarding Ja, the City Controller finally stepped in and abruptly terminated Ja’s additional contract, withholding over $400,000 in remaining contract funds.

• Three days later, on September 21, 2009, Kerr and Rivero filed a second complaint alleging that the then Director of Public Health, defendant Mitch Katz, may have engaged in a conflict of interest by accepting — according to FPPC public records — somewhere between $30,000 and $300,000 in consulting fees from Health Management Associates (HMA), a City contractor performing consulting services for the Department of Public Health. Both San Francisco’s Conflict of Interest policies and the California Political Reform Act prohibit government employees from participating in making of contracts with companies in which they have a financial interest.

• On March 2, 2010, Rivero and Kerr filed their third complaint regarding the raid of LHH’s patient gift fund, which scandal has been thoroughly reported in past issues of the Westside Observer over the past three years. The scandal was also broadcast in two KGO I-Team investigative reports in May 2010, which defendants Katz and Hirose had viewed, and which Katz and Hirose had responded to by publically posting on LHH’s web site a statement that Kerr and Rivero were mere detractors who were making false statements.
  
  The two doctors had discovered that patient funds had been quietly diverted to three separate accounts for staff perquisites and amenities, and increasingly used for the “comfort and benefit” of staff and administrators, instead of patients. This feat was engineered by LHH’s then Executive Director, John Kanaley, who had quietly authorized setting up accounts for staff training within the patient gift fund, and had permitted inter-account transfers for staff amenities.
  
  The City Controller’s audit of the clear misappropriation of charitable contributions intended for patient amenities languished for months, but the Controller’s highly-publicized audit finally ordered in November 2010 return of $350,000 improperly removed from the gift fund. [Editor: The City Controller’s restoration of funds to the patient gift fund is available in the Westside Observer’s December 2010 issue, at “Controller Restores $350,000 to Laguna Honda’s Patients.”]

Who Are These Two Doctors?

Rivero and Kerr take their professional and ethical obligations as doctors seriously. They passionately believe, having taken the Hippocratic oath to first do no harm, that among their responsibilities is to fully embrace advocating for patients.

Derek Kerr, MD, CNA attended Harvard Medical School, did his residency at Harlem Hospital and his Oncology Fellowship at Memorial Sloan-Kettering Cancer Center. He has the rare distinction of being Board Certified in three separate medical specialties: Internal Medicine, Medical Oncology, and Hospice and Palliative Medicine. Following his medical education and years of practicing medicine, he went back to school and became a Certified Nursing Assistant in 1988 to better understand patient care from a nursing perspective. Kerr was the Attending Physician of Laguna Honda’s Hospice for 21 years, was listed as LHH’s Palliative Care Consultant on the Medical Staff roster, and had been the Attending Physician assigned to LHH’s “Hospice and Palliative Care” service since 1994. During his tenure, LHH’s Hospice was widely acclaimed, receiving a national award. Kerr was Chair of the Bioethics Committee at Fairmount Hospital prior to employment at LHH.

Maria Rivero, MD, FACGS, graduated from UCSF Medical School and completed her residency at Beth Israel Hospital/Harvard Medical School. She is Board Certified in both Internal Medicine and also Geriatrics, and is a Fellow of the American College of Geriatrics Specialists. She also has been a Certified Eden Alternative Associate since 1998. Rivero worked at Laguna Honda Hospital for 22 years, and served as LHH’s Medical Director and its Assistant Medical Director between 1997 and 1999.

As former co-workers at LHH, Rivero and Kerr were highly regarded by hospital staff as among the best doctors in the hospital. As a team, they became whistleblowers at great professional risk to their careers; their core belief in ethical behavior led them to become whistleblowers, even though they never imagined initially that they would ultimately become involved in exposing fraud and corruption.

Correcting the Record: “No One Spoke Up”

In April 2012, as Kerr’s lawsuit dragged on, another former physician at Laguna Honda Hospital, Dr. Victoria Sweet, published her 348-page memoir about the hospital, titled God’s Hotel, which was riddled with errors and which, among other flaws, contained not one date to place her reporting into chronological or historical perspective. Among many other errors, Sweet incorporated three glaring untruths about Dr. Kerr. Sweet should have known better, since events in Kerr’s lawsuit had been unfolding for fully two years before she published her memoir. Sweet never bothered fact checking with Kerr or Rivero during the years she spent writing her memoir.

First, Sweet wrongly reported that a “Dr. Talley” — the pseudonym Sweet assigned to Laguna Honda’s medical director, Dr. Colleen Riley, one of the named defendants in Kerr’s lawsuit — claimed that it had been she, Dr. Talley, who had made the decision to terminate Dr. Kerr. Sweet reported that “Dr. Talley” announced during her first meeting as Medical Director of Laguna Honda’s medical staff, that it had been “entirely her decision” to lay off Dr. Kerr, and that then Director of Public Health Mitch Katz and LHH’s Executive Administrator Mivic Hirose had had nothing to do with the decision to terminate Kerr.

In fact, Mivic Hirose herself has claimed elsewhere that it was entirely her decision — not Dr. Riley’s — to terminate Dr. Kerr. Indeed, during depositions in Kerr’s case, it appears that Katz and Hirose decided on December 15, 2009, or earlier, to lay off Dr. Kerr, several weeks before Riley was appointed Medical Director at the end of December. When she learned of Katz’s and Hirose’s decision to target Kerr, Riley did nothing as Medical Director between January and March to stop the clear retaliation.

Next, Sweet wrongly opined that one of Dr. Kerr’s “principles” was that he would only take care of his own patients [at LHH, and that] he “almost never took call, or helped out, or covered other wards. So no rebellion broke out [when Kerr was terminated], and no one spoke up [when the Bell Tolled for Dr. Kerr].” But during discovery in Kerr’s case, LHH produced Ward Coverage Schedule records showing Kerr had, indeed, often provided coverage on other wards, took call, and often “helped out.” During depositions, Kerr’s lawyers showed that Kerr had, in fact, performed ward coverage, even more so than Dr. Riley had in some years. Other doctors also testified under oath that Kerr had done his share of coverage.

Sweet’s claim no one spoke up, and no rebellion broke out was a complete lie. A second petition opposing Dr. Kerr’s and Dr. Bouvier’s proposed layoffs — which requested both layoffs be rescinded — was signed by 16 physicians, including Dr. Sweet herself. The second petition, a “Statement of Concern,” was sent to defendant Dr. Colleen Riley and to Steven Thompson, MD, the Chief of Staff of LHH’s Medical Service, who forwarded it to Ms. Hirose.

Of the 20 doctors on the regular staff (excluding MD administrators), Kerr had 18 supporters, 16 of whom signed the petition — representing 80% — who were strongly opposed to Kerr’s layoff; thus, well over three-quarters of the regular Medical Staff had indeed spoken up, which Sweet had to have known but elided. [Although Bouvier’s layoff was rescinded and he went on to become the City’s highest-paid employee, Kerr’s layoff wasn’t rescinded.]

In addition, despite the environment of fear among LHH staff resulting from the culture of intimidation generated by LHH’s administration, all six members of the Hospice team risked their careers by signing and submitting a letter of support opposing Kerr’s layoff. Along with Rivero, the Hospice’s nurse manager, its social worker, and Dr. Monica Banchero-Hasson and Dr. September Williams also risked their careers by publicly testifying against Kerr’s layoff at a meeting of a Health Commission subcommittee — LHH’s so-called Joint Conference Committee made up of senior hospital administrators and three Health Commissioners.

Dr. Williams — a nationally recognized expert on Ethics, and a member of LHH’s Bioethics Committee — stated during the LHH-JCC’s March 23, 2010 meeting that she “protests the layoff of Drs. Kerr and Rivero because it will impact the provision of quality care to Laguna Honda’s most vulnerable and needy residents, and is against the principles of beneficence.” Sweet had to have known of the groundswell of support by those who, in fact, did speak up defending Kerr.

Third, Sweet also misreported the sequence of Kerr’s lay off and the timing of filing of his whistleblower complaints. Sweet sloppily reported Kerr had filed a whistleblower [law] suit “the day after his layoff … ‘alleging’ that his investigation of the drained Patient Gift Fund was the reason he was laid off.”

Sweet had to have known Kerr wasn’t making a mere “allegation,” since many of LHH’s physicians knew of the problems with the patient gift fund. The major story that Sweet completely elided from her memoir and which she had to have known of, was that everyone — including doctors on LHH’s medical service — knew Kerr was being eliminated in an act of retaliation.

In fact, the timeline shows that Kerr and Rivero submitted their patient gift fund whistleblower complaint to the Ethics Commission at 12:02 p.m. on March 4, 2010, which was promptly faxed to San Francisco’s District Attorney. Two hours later, Dr. Riley confirmed during a Medical Staff meeting that the only planned physician cut was a previously announced cut of a half-time position that wasn’t Dr. Kerr’s position.

But three-and-a-half hours later on the same day, March 4, Kerr’s Union (the Union of American Physicians and Dentists) was informed by LHH’s H.R. department that Kerr would be receiving a permanent layoff notice. Kerr was orally notified of his layoff on Monday, March 8 and was handed the printed layoff notice that was signed on Friday, March 5. It was ten days later — not one day later under Sweet’s misuse of literary license — when Kerr filed a Whistleblower Retaliation Complaint (not a lawsuit) with San Francisco’s Ethics Commission. Sweet should also have known that it was fully eight months later, on November 16, 2010, when Kerr filed his wrongful termination lawsuit in Superior Court, not the day after receiving his layoff notice, as she deliberately misreported.

Lightning Strikes Twice

The wrongful termination of Kerr in 2010 follows on the heels of Laguna Honda Hospital’s wrongful termination of Dr. John Ulrich, Jr. in 1998. Ulrich — who had also spoken up in 1998 about patient care during a Laguna Honda medical staff meeting and called the health department’s decision to cut two medical staff positions “an injustice to patients” — was summarily terminated by Laguna Honda Hospital, just as was Dr. Kerr. Ulrich was forced to sue the City, after the state medical board had cleared him of any medical wrongdoing and found no problems with Ulrich’s care of patients.

Ulrich, whose case had advanced to jury trial, won a $4.3 million judgment in federal court in 2004, subsequently reduced to a $1.5 million negotiated settlement. As the Pittsburgh Post-Gazette newspaper reported in its June 24, 2004 issue, a U.S. District Court of Northern California jury concluded that LHH “had violated Ulrich’s first amendment rights to free speech, and denied him a fair hearing to clear his name.”

Strikingly, the then San Francisco City Attorney spokesperson, Matt Dorsey, claimed in 2004 that Ulrich’s dismissal was “not an instance of reprisal.” Dorsey went on to claim there was “not a shred of credible evidence to indicate wrongdoing on the part of the City.” Dorsey foamed, “We consider this outcome [Ulrich’s award] an aberration.”

A decade later, Dorsey is still the City Attorney’s spokesperson. Given Kerr’s settlement, it’s clear Dorsey may be unable to distinguish an aberration from a clear pattern.

Given Kerr’s precedent-setting settlement award, it’s also clear there is a past- and current-practice pattern documenting that LHH’s senior management engages in wrongful termination and willful retaliation against employees who exercise their First Amendment rights to free speech.

The pattern isn’t limited to just Laguna Honda Hospital; it happens all too frequently in many City departments.

The Costs of 100% Retaliation

The Ethics Commission did nothing to protect Kerr’s career after he submitted his patient gift fund whistleblower complaint with Dr. Rivero. Instead, he was told to get a lawyer, and Ethics took two years to complete investigating Kerr’s complaint.

“In retrospect, a lawsuit was our only hope, because Ethics hasn’t sustained a single whistleblower retaliation claim since it was founded, not one,” Kerr laments. “Many studies show that reprisals against whistleblowers are common, with retaliation rates up to 90%. But with San Francisco’s Ethics Commission, the retaliation rate is always zero,” Kerr says.

Kerr was referring to the fact that in November 2012 the City Attorney’s Office reported that between 2007 and 2012, the City settled 103 cases involving prohibited personnel practices for a total of $11 million, including wrongful, retaliatory termination; racial-, age-, and disability-discrimination; sexual harassment; and other prohibited personnel practices.

Despite the City Attorney having concluded that at least 13 wrongful termination settlement cases have cost the City $1.3 million since 2007, San Francisco’s Ethics Commission has dismissed every whistleblower retaliation complaint filed at Ethics. Ethics has “dismissed” at least 18 cases alleging prohibited retaliation, for a 100% “clearance” rate, hoping to suggest there is zero retaliation against City employees. Studies show that nationwide, retaliation against whistleblowers is common, with rates up to 90%.

Only in San Francisco would our Ethics Commission dismiss every retaliation complaint received, claiming that zero retaliation ever occurred. Despite Ethics’ nonsense that there have been zero retaliation cases, it appears that, in fact, San Francisco may well have a 100% retaliation rate.

Prominent San Francisco open government, public-interest, and accountability advocate James Chaffee — who was an inaugural member of San Francisco’s Sunshine Ordinance Task Force serving as its first Vice Chair, and is now affiliated with San Francisco’s ad hoc Sunshine Posse — wrote to the Board of Supervisors on March 30, 2013, noting “Dr. Kerr’s case has many themes that reverberate throughout City Hall — the influence of private money; the misapplication of purpose of the money; the automatic defense of incompetent administrators; and, most of all, the acceptance of corruption as ‘business as usual,’ all the way to the top.”

Drs. Kerr and Rivero, for their part, hope some public benefit will come from the delayed justice they have endured.

As William Bennett Turner, a faculty member who teaches courses on the First Amendment at U.C. Berkeley noted in his book “Figures of Speech: First Amendment Heroes and Villains” published last year, First Amendment heroes are those who say what they believe, and have the courage to face the consequences.

Villains — such as the defendants in Kerr’s lawsuit — are those who want to suppress free speech that they disagree with.

Kerr and Rivero accidentally became First Amendment heroes. We owe them a debt of gratitude for risking their careers exposing fraud and corruption, and for advocating on behalf of LHH’s patients, who are often the poorest of the poor.

Kerr’s monetary and non-monetary settlement awards don’t begin to adequately reimburse him for the damage to his and Rivero’s careers. But there’s a vast community grateful for his and Rivero’s courage to speak out.

Monette-Shaw is an open-government accountability advocate, a patient advocate, and a member of California’s First Amendment Coalition. Feedback: monette-shaw@westsideobserver.com.

Postscript: The City and LHH’s CEO, Mivic Hirose, Still Don’t Get It

On March 26, 2013 — at the same hour that the Board of Supervisors voted to approve Kerr’s monetary and non-monetary settlement terms — Drs. Kerr and Rivero, and this reporter, instead attended a meeting of the LHH-JCC (Joint Conference Committee), consisting of three Health Commissioners and LHH’s senior leadership, which meets every other month.

Following Hirose’s customary Executive Administrator’s report, the JCC took public comment. Kerr, for his part, testified that bullying and getting rid of whistleblowers is both counter-productive and illegal. As he began to testify that his retaliation settlement agreement requires that LHH’s Executive Committee be provided a one-hour training on employee’s whistleblowing and First Amendment rights — which training Kerr feels should be expanded to all LHH senior managers — Hirose began to openly smirk, just seconds after I took this photo.

I blurted, quite out of order, “There’s nothing funny about this Mivic, why are you smirking?” She quickly wiped the smirk off of her face, glaring at me, obviously not contrite. Hirose clearly doesn’t get it, or seem to understand the gravity of the $750,000 settlement plus the City Attorney’s hefty legal fees spent defending the pretext that Hirose, Katz, and Riley were was innocent of retaliatory termination. Maybe she thinks money grows on trees in LHH’s new orchard.

Next, Dr. Rivero testified on March 26 that a recent Coalition on Compassionate Care award to LHH’s Hospice and Palliative Care Service tells a different story than Hirose’s and LHH’s new press release. Rivero noted that the award honors 25 years of hospice care, which couldn’t have happened without Kerr’s 21 years as Hospice physician. Rivero testified that it is shameless self-promotion to aggrandize LHH and Anne Hughes, RN, by ignoring the founder of the hospice program, Dr. Kerr.

Later, I testified that the City’s and Defendant’s defense pretext that Hirose was innocent is over, or Kerr’s settlement deal would never have been reached. Hirose has clearly cost taxpayers over $1 million — at minimum — between Kerr’s $750,000 settlement and the $350,000 ordered restored to LHH’s patient gift fund.

I testified that the Health Commission should recommend that DPH terminate Hirose at once, the sham of her “I’m innocent!” pretext being over.

But there were just more smirks and blank stares all around the table.

As Mr. Chaffee has noted, the acceptance of corruption as “business as usual, all the way to the top,” is what runs San Francisco’s so-called “City Family.” Just ask the current mayor. Or our former mayor, Willie Brown, who both probably view the $11 million in prohibited personnel actions and wrongful termination settlements awarded during their tenures as mayor— and the ensuing damage to the careers of innocent employees — to just be a cost of doing corrupt business-as-usual. Between corrupt friends, perhaps $11 million is considered chump change.

April 2013

The High Cost of City Government

Voracious Management Salaries Rob the City’s Lowest-Paid Workers

By Patrick Monette-Shaw

Even while skyrocketing salaries for upper management in San Francisco City government now costs $1.6 billion, excluding fringe benefits, the City has proposed imposing a “reverse pay equity” (pay cut) for 45 lower-paid job classification codes for new hires, creating a two-tiered salary structure for performing the same work.

Bloated salaries for San Francisco’s top City managers contribute significantly to the purported $4.4 billion in so-called unfunded City pension contributions, since City salaries drive pensions paid out.

Inequities in salaries of City employees deserve a close look-see, since nearly one-quarter — 7,327 — of all City employees are half-time or less, employees who averaged just $12,492 in annual base pay in FY 10-11. Fully 32 percent — 11,783 City employees — earned less than $50,000 in base pay in calendar year 2012, averaging just $22,491 in total pay.

Contrast that to the glut of City staff who in calendar year 2012 earned over $100,000 in base pay — 7,864 such employees, or 21.6 percent — who averaged $124,715 in base pay and averaged a staggering $143,131 in total pay. Or contrast it to the 12,309 employees — 33.5% — who earned over $90,000 in total pay in calendar year 2012, averaging $110,473 in regular pay and $129,622 in total pay.

Given the salary inequities between the lowest- and highest-paid City employees, the stench of probable political patronage using taxpayer funds begins to waft through the air.

Chops to the Lowest Paid

The City has proposed trimming 10% from new-hire salaries for payroll and personnel clerks, certified nursing assistants, and hospital eligibility workers, claiming they are overpaid compared to the Bay Area market. The City also proposes a seven-and-a-half percent pay cut for psychiatric technicians, child support officers, legal process clerks, legal secretaries, psychiatric social workers, and museum guards. The City also wants its pharmacists, custodians/porters, medical social workers, various health care workers, employment and training specialists, and diagnostic imaging technicians to take five percent new-hire pay cuts.

At the same time, the City is not proposing pay cuts from the 722 senior managers earning more than $90,000 in base pay in the 0900-series of management job classifications, who averaged $136,242 in base pay.

Between calendar years 2008 and 2012, the City has already eliminated 734 positions across the 45 job classifications the City now proposes to cut salaries of, pocketing $20 million to $30 million in base pay from the lost 734 positions, and probably transferring the duties to higher-paid employees. Should its new pay cut proposal prevail for the 45 job classifications, the City may realize approximately $13.7 million in additional “salary savings” — albeit, spread across several decades — through attrition and replacement with new hires who will be paid at the lower salaries.

At the end of June 2011, the 3,864 employees remaining in these 45 job classifications earned average base-pay salary of just $49,061. Of the 3,864 remaining, fully 18%, nearly one-fifth, worked less than half-time status, averaging salaries of just $12,389. Only 49.5 percent of employees in these job codes worked full-time, at an average salary of $60,913. The City will likely convert many of the new hires in these job classifications to part-time status, and extract pay cuts of up to ten percent from half-time employees who are already averaging just $12,389 in base pay.

This follows on the heels of “de-skilling” of clerical and secretarial employees in the 1440-series, who forfeited 452 positions between calendar years 2008 and 2012, allowing the City to pocket another $13.4 million in salaries. “De-skilling” involves assigning the work of higher job classification clerical employees to lower-paid clerical staff — or alternatively, of handing the work of skilled clerical employees to highly-paid management staff, where the work is performed for much higher pay, if at all.

In FY 2010-11, the City’s 1,600 clerical employees in the 1400-series job classification codes averaged just $42,026 in base pay, but the sad fact is that of those 1,600 clerical employees, 21 percent worked less than half-time and averaged just $7,970 in base pay.

Combining the 452 clerical positions eliminated between calendar years 2008 and 2012, and the 734 positions already eliminated from the 45 job classification codes, the City has eliminated at least 1,186 lower-paid and part-time positions, pocketing between $33 million and $50 million, which the City then used to increase the number of, and salaries of, highly-paid managers.

Much of the work formerly performed by clerical workers has been given to far-higher-paid managers, although the City has attempted to hire so-called “as needed” public service aides to fill the gap. Knowledgeable and experienced clerical workers are being replaced by aides.

In the three-year period between FY 08-09 and FY 10-11, the City added 587 part-time public service aides in the 9900-series job classifications to replace the 452 clerical employees eliminated in the 1440-series, bringing the total number of public service aides to 1,309, of whom 1,211, 92.5 percent — work less than half-time (so the City doesn’t have to pay them any fringe benefits), and who averaged just $4,590 (yes, less than $5,000 each, on average) during FY 10-11.

The City has also forced many of the higher-skilled secretaries formerly in the 1440-series into the lower-paid 1406 Senior Clerk classification. During the same time period of the public service aide hiring binge, the City added 106 additional 1406 Senior Clerks, who now average just $43,665 in base pay; 12.4 percent of the now 201 Senior Clerks work less than half time, averaging just $10,543 in base pay annually.

Another example, to be clear, of the part-time direction the City is headed in, is that 494, 21.2 %, of 2,330 Muni drivers earned average salaries in FY 10-11 of just $11,030, having worked less than 1,040 hours, which is half-time, or 0.5 FTE (“full-time equivalent”) status.

Across all job classification codes in FY 10-11, fully 21.3 percent, 7,327 City employees, were half-time (or less), averaging just $12,492 annually in base pay. They stand in stark contrast to the 7,864, or 21.6 percent, of employees who earned over $100,000 in base pay and averaged $143,131 in total pay.

Excesses for the Highest Paid

After former Supervisor Tom Ammiano first noted in 2003 that City managers earning over $90,000 were a problem, voracious management salaries have climbed steadily upward for over a decade. Indeed, on February 20, Matier and Ross lamented in the San Francisco Chronicle that the days when it was news that a handful of City managers were earning $100,000-plus salaries were long gone — now such highly-compensated employees has somehow become acceptable.

Matier and Ross reported that approximately 572 San Francisco city employees are paid more than Governor Jerry Brown’s $173,987. Indeed, San Francisco does have 379 City employees who were paid more in base pay in 2012 than the governor earned; those 379 averaged an astounding $193,415 in base pay each, sucking out a combined $78.6 million in total pay from the City’s payroll. They also reported that 195 City employees made more than $200,000, and that one quarter of City employees make more than $100,000 without overtime.

Across the decade since 2003, the City has added another 553 managers in the 0900-series job classification codes, bringing the total to 722 of such managers in 2012. Of the 722 managers, we have 570 in the 0922 to 0943 manager series (up to Manager VII), and another 131 Deputy Directors of Departments and Department Heads (Deputy Directors I through V and Department Heads I through V) in the 0951 to 0965 series, even though the City’s core business has not changed sufficiently in the past decade to warrant the hiring of 533 more managers in these job classifications. This single increase costs taxpayers an additional $82.4 million annually, and now costs at least $101.5 million in base salary alone for the 722 incumbent senior managers.

Why does San Francisco need at least 722 senior managers — or more, since there are many other job classification codes that include the word “manager” in their job titles — to run just (approximately) 60 City departments?

Matier and Ross failed to note that in the five years between 2007 and 2012, the City felt the need to add an additional 1,461 employees earning over $150,000 in total pay, at an increased cost of $269.3 million. The City now has 2,777 employees earning over $150,000 annually in total pay, at a combined cost of $496.1 million.

While City Hall turns a blind eye towards the City’s $4.4 billion in purported unfunded pension contributions, it is simultaneously turning a blind eye to the ever-escalating unfunded liability of salaries for top City managers who apparently feel an entitlement to excessive salaries. Their top salaries drive top pensions, just as night follows day.

Until taxpayers say enough is enough, expect these City managers to keep earning far more than our State governor, the president of the United States, and private sector CEO’s, while the City’s lowest-paid workers are robbed of their jobs, or face drastic pay cuts.

Monette-Shaw is an open-government accountability advocate, a patient advocate, and a member of California’s First Amendment Coalition. Feedback: monette-shaw@westsideobserver.com

Laguna Honda’s Continuing Scandals

A Sordid Tale of Two Non-Profits

By Patrick Monette-Shaw

The recent sordid history of two non-profits that purport to serve residents of Laguna Honda Hospital (LHH) appears to have resulted in the dissolution of one of the non-profits, declining contributions to the hospital from the other, and an eight-year low in public contributions to Laguna Honda Hospital’s patient gift fund.

All of this may have been avoidable. But a confluence of factors appears to have contributed to unintended consequences for all three programs. Former City Attorney Louise Renne’s unfortunate statements in June 2004 may have set the stage for their downward trajectory.

Renne—who claims that she was responsible for the ground-breaking lawsuit against tobacco companies that provided much of the rebuild funds, when it was former Supervisor Angela Alioto who accomplished that feat—and though she failed to raise a single dime towards new furnishings for the rebuilt hospital, Renne was awarded an engraved plaque in Laguna Honda’s new facilities.

Renne appears to be finally throwing in the towel, and is reportedly dissolving her foundation following an apparent investigation by the Registry of Charitable Trusts, a division of California’s Attorney General.

RIP Laguna Honda Foundation

In response to a fairly innocuous “show us the money” request placed on January 13 by this Observer columnist for audited financial statements of Ms. Renne’s Foundation, Melanie Beene, CEO and President of Community Initiatives—the “fiscal sponsor” handling the books of Renne’s non-profit Foundation—responded unexpectedly on January 14, that Renne’s foundation is no longer a sponsored project of Community Initiatives.

This loss means Renne can no longer shield her Foundation’s revenues and expenses by aggregating them under lump-sum reporting by Community Initiatives to the IRS. She has lost her IRS cover.

Beene also volunteered that, to the best of her knowledge, the Foundation is dissolving.

By mid-week, a source who spoke on condition of anonymity reported that the Attorney General’s office—presumably the A.G.’s Registry of Charitable Trusts that oversees operations of non-profits in California had either investigated or audited the Foundation.

The source further reported that Renne’s Foundation may have had to return a $50,000 grant to one of its donors, and may have expended the last of the foundation’s funds responding to the A.G.’s investigation. The A.G. noted that it is highly improper and very unusual business practice for a foundation that has received independent non-profit, public-benefit corporation status from the IRS—as Renne’s Foundation has—to also operate as a so-called “project” of fiscal-sponsor entities such as Community Initiatives.

By January 18, not only had Laguna Honda Hospital removed from its web site its previous philanthropy web page link to the foundation, Attorney General investigators also reported they would neither confirm nor deny any investigation.

“We were so shocked at being driven out of Laguna Honda, right after reporting irregularities with the Patient Gift Fund in 2010, that we figured we had touched on major violations that Laguna Honda and the Department of Public Health were desperate to hide,” former Laguna Honda Hospital physicians Dr. Maria Rivero and Dr. Derek Kerr said.

“So we reported our findings about the patient Gift Fund; Volunteers, Inc., and the Laguna Honda Foundation to the Attorney General’s Registry of Charitable Trusts, the U.S. Attorney’s Tax Division, and the IRS. Had we not been ‘laid-off’ and harassed, we would have reported solely to the City’s Whistleblower Program,” the two doctors disclosed. The Attorney General’s office apparently followed up on their ethical concerns.

Dissolution the Foundation appears to be delayed fallout from the scandal involving Laguna Honda Hospital’s raid of its patient gift fund in order to fund staff amenities, set in motion by previous Executive Administrator, John Kanaley, who died in 2009. The gift fund was eventually restored some $350,000, following a long-delayed audit by the Controller.

Gift Fund Donations Plummet Again

The “Annual Report of Gifts Received,” issued by the Department of Public Health’s CFO, shows that in Fiscal Year 2011-2012 ending in June 2012, private giving to Laguna Honda’s patient gift fund dropped to just $7,042, excluding a one-time $20,000 donation from Safeway, Inc. for a nutrition project in the hospital.

That $7,042 represents the lowest level of private contributions to the patient gift fund since FY 2006-2007, when donations to the gift fund were 14 times higher, at $97,915. Even going back to FY 2004-2005, the year after the Foundation’s formation, donations to the gift fund were ten times higher, at $77,003.

Of interest, donations to the patient gift fund took a drastic “fiscal cliff” fall between Fiscal Years 2006–2007 and 2007–2008, plummeting from $97,915 to just $28,656, the year after Renne installed, former Deputy City Attorney Marc Slavin, as Laguna Honda’s Director of Communications in 2007.

Slavin’s abrasiveness with members of the public may have contributed to the decline in donations to the patient gift fund.

Volunteers, Inc. Support Dries Up

Since 1957, Laguna Honda’s Volunteers, Inc. has financially supported both the patients at Laguna Honda, and its cadre of volunteers. In March 2012, Volunteers, Inc. re-branded itself, changing its name to “Friends of Laguna Honda.” It also decamped from Laguna Honda Hospital, and moved its offices from 90 New Montgomery to an address in Mountain View, after its former president Joseph Lehrer stepped down.

As the graph of data from the Health Department shows, donations from Volunteers, Inc. to Laguna Honda and its Volunteer’s Department have declined in the past five fiscal years, dropping by half—from $91,292 in FY 2006-2007, to just $46,294 in FY 2011-2012. But the CFO’s data only shows part of the story.

Turning to Volunteers, Inc.’s Form 990 tax returns from calendar year 2010 to calendar year 2011, grants awarded by Volunteers, Inc. to Laguna Honda for patient recreation and other services (including bus trips off campus) plunged from $171,261 in 2010 to just $20,018 in 2011 (albeit, the $20,018 grant more than likely came from Safeway, and may have been misreported by DPH’s CFO as a donation to the patient gift fund).

The $151,243 outright reduction in Volunteer, Inc.’s grants to Laguna Honda also tells only part of the story. Overall, Volunteers, Inc. reports on its tax returns that it had spent $394,250 on patient amenities, recreation, refreshments, and other “program services” to hospital residents in 2010, but cut that amount to $179,731 in 2011, a net loss of $214,519 in various services to patients.

In 2011, the $179,731 in program services for residents translates to 49.4% of Volunteers, Inc.’s total expenses of $363,932, down from 56.9% spent on program services from its total expense spending in 2009. The remainder in both years was eaten up by fundraising and management-and-general expense categories.

Charity watchdog groups, such as GuideStar.org and Charity Navigator, suggest that the standard benchmark for non-profits is to spend at least 70% of their total expenses on “program services” to serve actual beneficiaries. Volunteers, Inc.’s spending of just 49.4% on program services in 2011 fell short.

Although Volunteers, Inc. awarded $14,990 to LHH’s Volunteer Services in 2010, its tax return shows that it eliminated any financial support whatsoever to the Volunteer Services Department in 2011, in addition to the $151,243 grant reduction for patient amenities.

Between curtailing support to patients and completely eliminating support to actual volunteers of the hospital, Volunteers, Inc. cut its total spending on program services by $230,000 across a single calendar year. Across the same period, its tax returns show Volunteers, Inc. tripled its spending on public relations, from $11,072 to $33,693.

Who Does PR Slavin Work For?

Renne hand-picked Marc Slavin who had been her public information officer when she was the City Attorney.

Slavin informed this author shortly thereafter that his job was to “stop the negative publicity.” He never clarified whether it was to stop negative publicity for Renne’s Foundation, or for the Department of Public Health (DPH), which never had a PR officer assigned to LHH for 100+ years until Slavin’s arrival.

Between his base salary and fringe benefits, Slavin has cost taxpayers over $950,000 in six short years. His assistant, Linda Acosta, adds another $500,000 in salaries and benefits. Between them, $1.5 million in taxpayer funds may have gone up in P.R. smoke and mirrors.

Slavin, of course, is the P.R. wizard who told the I-Team’s investigative reporter Dan Noyes that LHH’s “patient gift fund isn’t for patients.” His propaganda campaign continues.

Magical Commingling of Funds

The unholy commingling of private and public sector funds began when Volunteers, Inc. awarded $375,000 to hire staff for Renne’s new Foundation in 2003. This was an expense completely unrelated to the exempt purposes for which the IRS awarded non-profit status to it.

As the Observer has reported in “A Foundation’s Dirty Laundry” (Dec ‘12), the commingling of public and private funds between the City, the Foundation and Volunteers, Inc., has never been audited, adequately or otherwise.

In addition to the $1.5 million in salaries and benefits funded by SF’s general fund for Slavin and Acosta to perform liaison work for Renne’s Foundation across the past six years, the City has provided free office space in Suite A-150 to house Renne’s Foundation, replete with janitorial services supplied by City employee staff, and free utilities.

Shooting Herself in the Foot

Renne published a guest opinion piece in the San Francisco Chronicle (“Laguna Honda needs more than what bonds provide” (6/3/04), claiming that the driving purpose governing formation of her Foundation was to raise private-sector funds for furniture, fixtures, and equipment for the new LHH. But by claiming that “regardless of the [patient] population mix receiving services at Laguna Honda—a policy decision in the hands of the city’s director of public health”—her Foundation had been established to meet the immediate needs of residents and other users. And she claimed the new LHH would move LHH “from a traditional medical model to a social residential model of care.”

Renne’s phrase “regardless of the patient population mix,” may have unwittingly sent the message that displacing the frail elderly and disabled that Laguna Honda had traditionally served was OK, and that using the hospital for psychosocial mental health rehabilitation, instead, was acceptable and a decision best left to then-Director of Public Health Katz.

That op-ed may have directly led to a drop in donations to LHH’s patient gift fund, and may have effectively killed any chance to attract donors. After all, Renne announced a major shift in the hospital’s mission that may have chilled philanthropic donors. Charitable donations to the elderly are one thing; but “psychosocial rehabilitation” has a much smaller universe of donors.

Ms. Renne Fails to Respond

Ms. Renne was offered an opportunity to confirm or deny whether she is, in fact, dissolving her foundation, and if not, what her plans may be, but failed to respond by press time. She appears to have chosen to withhold information again, just as she has from the IRS, the Health Commission, and the charity-donating public, any and all details concerning her foundation’s revenue and expenses.

SF’s Health Commission still has work to do: it should fully audit the commingling of funds at LHH and unplug its PR division .

The Health Commission has an ethical responsibility to formally notify Renne that the Commission expects any funds and all assets remaining in the foundation upon dissolution be donated only to Volunteers, Inc., or to LHH’s patient gift fund, for direct patient benefit.

Renne shouldn’t be let off the accountability hook quite so easily.

Monette-Shaw is an open-government accountability advocate, a patient advocate, and a member of California’s First Amendment Coalition. Feedback: monette-shaw@westsideobserver.com.

February 2013

Laguna Honda Foundation

A Foundation’s Dirty Laundry

By Patrick Monette-Shaw

Additional planning for use of Laguna Honda Hospital is again being discussed without input from the public — and probably without input from the hospital’s own patients — including outsourcing of Laguna Honda’s Gerald Simon patient auditorium, the on-going lack of a patient gift shop, and conversion of Laguna Honda’s old buildings into assisted living housing units.

(Photo: Louise Renne and Foundation’s Board of Directors VP Derek Parker at SF Health Commission Meeting)

To no one’s surprise, former City Attorney Louise Renne’s “nonprofit,” the Laguna Honda Foundation, which has no formal written agreement with the City, is embroiled in the discussions, and some complain that she’s being both secretive and disingenuous. Although Renne appears to have been planning the outsourcing of the patient auditorium for over a year and a half, her plans only became public on March 6, when her Foundation was hauled in front of SF Health Commission to provide an update of her Foundation’s activities and finances.

The Recalcitrant Foundation

Ever since Renne formed her Foundation in 2004 — without a written memorandum of understanding (MOU) with either the City or Laguna Honda Hospital — the Health Commission has been worried about the lack of reporting concerning the Foundation’s finances. As previously reported, when the City agreed to a preliminary $25 million settlement with Ms. Renne for furniture, fixtures, and equipment for the new Laguna Honda facilities, the Health Commission publicly fretted about how it would recover that planned settlement.

Since that time, there has been extensive coverage about the failure of Renne’s Foundation to disclose either its income and expenses, or the three categories of spending the IRS requires non-profits report on Form 990’s: Fundraising, Management and General, and Program Services spent on actual services. The three categories are used to evaluate the financial accountability of non-profits. All of the Foundation’s Form 990’s submitted to date to the IRS have reported zero income and zero expenses, even though it has been reported in the media that Renne’s Foundation has earned at least $766,531 since its incorporation eight years ago. But she’s never provided detailed tax returns itemizing how much she has raked in, and what she’s spending it on.

The Health Commission has tried repeatedly across the years to obtain the Laguna Honda Foundation’s financial data but they’ve been repeatedly rebuffed by Renne, who stridently refuses to cooperate.

The Artful Dodger’s Testimony

In preparation for a December 14, 2011 meeting with then Health Commission president Steven Tierney and its then vice president, Sonia Melara, Ms. Renne submitted a letter to the Health Commission dated December 8, in which she outlined her Foundation’s activities since it was incorporated.

True to form, Renne claimed in a footnote that her Foundation had difficulty raising funds because “two hospital physicians and others then employed at the hospital made public assertions that the hospital was unable to safely accommodate the flow of patients from San Francisco General Hospital.” Renne has been unable to admit that the damage to the hospital’s reputation was not done by the two physicians she wrongly accuses; instead, perhaps the damage to the hospital’s reputation was done by former Director of Public Health, Mitch Katz, whose notorious “flow project” made patient safety at the hospital a major issue.

Apparently resulting from Tierney’s December 14 meeting with Renne, the Health Commission placed an agenda item about Renne’s Foundation onto its March 6, 2012 meeting agenda. During the March 6 meeting, Renne presented orally much of the flawed testimony in her December 8 letter.

When she testified that she set up her Foundation “right after Proposition A” was passed by the voters in 1999, she was stretching the truth; her Foundation wasn’t incorporated until almost five years later, in 2004. She claimed her Foundation had funded something related to lift apparatus to transfer patients safely into bath tubs, but she didn’t say how much was donated, when, or for what items. When she testified that her Foundation had funded working with the Center for Health and Design, she claimed it was among gifts to the City and hospital.

Derek Parker, Vice President of the Board of Directors of Renne’s Foundation, accompanied her to this hearing. Parker co-founded the Center for Health Design, known for its Pebble Projects, a theory that “evidence-based design” can contribute to measurable improvements in patient outcomes. Parker has served in various roles at Anshen + Allen, the architects who designed Laguna Honda’s new facilities, including as a principal, as its former CEO, as a member of its Board of Directors, and as its Director Emeritus.

Renne forgot to note her Foundation’s funding to the Center for Health Design benefited an entity Parker co-founded and was a board member of, while simultaneously serving on her Foundation’s board. She also failed to note that the City filed a lawsuit against Anshen + Allen, Stantec Architecture (which acquired Anshen + Allen), and other entities in December 2011, seeking recovery of damages for breach of contract, professional negligence, indemnity, and other declaratory relief involving the dispute that arose from the design and construction of the Laguna Honda Replacement Project. The lawsuit involves over $70 million in design errors.

When she testified that her Foundation had helped provide money for training and consultants, she failed to mention the hospital already had a $10 million “transition budget” supplemental stash from the general fund for that purpose. She claimed her Foundation had helped fund the hospital’s opening festivities and ribbon cutting ceremony, but again, the City had a separate budget line-item for that. She claimed her Foundation had made a grant to Laguna Honda to help pay for a gardener. She asserted, “All of the money that we spend is requested by the Hospital or the City. And if the Hospital makes a request, it goes through them.”

She claimed that her Foundation had made several gifts and grants to the City, often directly to the hospital. She went so far as to say, “Any money that we spend at Laguna Honda certainly is a matter of public record,” but that’s pure hubris, since there are no public records concerning her Foundation’s expenditures. Renne isn’t likely to make any records available, anytime soon.

Poor Health Commissioner Jim Illig; he took Renne’s bait, and pressed her. Illig noted that the Health Commission has a Charter responsibility to obtain an annual report of gifts and grants to public health entities from each agency affiliated with the Health Department. He noted that the Public Health Foundation, Friends of Laguna Honda (formerly Laguna Honda Volunteers, Inc.), and the San Francisco General Hospital Foundation all comply with this Charter requirement, and each entity provides their revenues and expenses to the Health Commission.

Perhaps to his downfall, Illig pressed harder, contradicting Renne publicly by saying, “We have no record of grants [from your Foundation] that have come to Laguna Honda, because it would have been reported to us, as the Health Commission.” [Editor’s note: Nine days later on March 15, the Mayor declined to re-appoint both Commissioners Illig and Tierney, who were both hold-over appointments. The timing between Renne’s forced appearance before the Health Commission and the abrupt removal of the two Commissioners who had pushed for the hearing into her finances is obviously problematic.]

Indeed, four subsequent public records requests — to the Health Commission, to the City Controller’s office, to Laguna Honda Hospital itself, and to the Department of Public Health — for any “accept-and-expend” resolutions documenting specific Laguna Honda Foundation gifts and grants to the City between 2003 and today’s date each yielded the same four responses: There were no responsive records from any of the four City agencies. Illig had been correct: The City has absolutely no record of any gifts or grants to any City agency made by Renne’s Foundation since its inception, despite her testimony to the contrary.

The “No Public Money” and “Anonymity” Canards

Ms. Renne appears to be confused about the source of funds to her non-profit organization. On March 6, she stated, “All — all! — of our contributions come from private individuals. And consequently, there is no public money.” What Ms. Renne may not understand is that the key litmus test to obtain IRS non-profit designation is what percentage of contributions is considered “public support.” Private donations to any non-profit foundation are public funds donated to advance a charitable public purpose, and those contributions typically come from members of the public. All funds donated become “public money,” entrusted to fiduciary stewards of the non-profit.

What Renne is confounding is that only “sometimes” — by her own admission — her Foundation receives money from donors who wish to remain anonymous. This is a complete canard, since IRS rules already permit withholding of the names of individual donors for confidentiality reasons. This is no reason for Renne to completely withhold reporting her total revenues in their entirety, simply to provide donor confidentiality.

There are IRS protections already in place to ensure full financial disclosure, without disclosing donor names. Can’t the Health Commission see that Renne is hiding behind donor disclosure concerns, to deliberately avoid full financial disclosure?

And what of Renne’s claim that her Foundation has been falsely accused of taking tobacco settlement revenues? To our knowledge nobody has raised such an accusation, except Renne herself.

Outsourcing the Patients’ Auditorium

Without the Health Commission’s March 6 hearing on the Laguna Honda Foundation’s status, Ms. Renne’s plans to outsource operations of Laguna Honda’s patient auditorium would still be in the dark.

Named in 1963 for local businessman Gerald Simon, who founded Laguna Honda Volunteers, Inc. in 1957 to raise funds for the hospital’s patients, the patients’ auditorium has long been a focal point of hospital activities. During the decade between May 1999 and November 2009, patient activities were expertly conducted by the nearly 40 activity therapists employed by the hospital, each of whom had advanced specialized training in therapeutic activities. (Laguna Honda’s activity therapists have a broad range of specialties, from art therapy to dance therapy and everything in between, and are skilled at cognitive stimulation of frail elderly patients.)

After over 50 years of conducting programs in the patient theater, including hosting Bing Crosby concerts, suddenly last March 6 Renne alleged, “…the [Laguna Honda] staff there is so busy that there’s no way they can run the theater, I just don’t think it’s humanly possible.” Then we learned that sometime in the spring of 2011, Renne’s Foundation contracted with AECOM to assess operations of Gerald Simon Auditorium. By July 2011, AECOM had issued its draft report prepared for the Laguna Honda Foundation, entitled “Demand Assessment for Gerald Simon Theater.”

The assessment claims that Gerald Simon auditorium needs to be “re-branded” as distinct from the hospital itself, probably with a new name to convey it’s a community theater, not exclusively for patients. After 50 years of operations, suddenly Mr. Simon’s good name on the auditorium isn’t good enough for Renne or the hospital.

The assessment analyzed the demand for various types of activities that community organizations may hold to rent Gerald Simon Theater, and what type of management model would be appropriate. In order to raise an estimated $176,000 annually to run the theater — $107,000 of which represents new management salaries for staff in addition to existing hospital employees — various cost factors are assessed.

It’s clear Renne is seeking a dedicated funding stream for her Foundation.

The report notes that resident use of the auditorium will be of concern when scheduling rental events. The report is very vague on what will be done to accommodate residents in the hospital’s chapel that is being constructed next to the auditorium, or whether worship services would have to be moved elsewhere in the hospital when there are scheduling conflicts. The report notes caution will be needed to prevent displacing resident activities, but mentions nothing about what may happen to long-scheduled resident activities in the event urgent or lucrative community events might require bumping resident activities in order to meet monthly theater rental quotas.

The report notes that the 600 parking spots on Laguna Honda’s campus will be of significant interest to planners considering holding potential events at Laguna Honda, but the report does not mention where LHH’s staff, who each pay $75 monthly or more for on-campus parking, will park their cars on days when rental events might require them to give up their parking spaces. The report notes that another “plus” is the hospital’s new Café Kitchen on the second floor that could be creatively scheduled for use as a private event catering kitchen. But again, the report does not discuss how use of the kitchen for private events might adversely impact preparation of routine meals for patients.

The report notes that there are $360,000 to $700,000 in required, or highly-desired, construction improvements to the theater to attract rental tenants, costs which are not included in the hospital’s replacement project budget, nor are funding sources identified in the Demand Assessment.

Shouldn’t those construction improvements have been included in the design of the hospital when construction plans were drawn up a decade ago? Why are design changes needed now, two years after moving into the new facilities? Shouldn’t a demand assessment for the theater have been conducted before construction began in 2003?

It’s unknown whether Laguna Honda has told its Residents Council of Renne’s plan to take over operations of its patient auditorium. Should the auditorium rent out for an entire month, patients may not have access to their auditorium and its adjoining chapel?

Notably, the report indicates that in order to generate about $156,000 in annual revenue, a community theater at Laguna Honda would have to hold approximately 12 events each month. But the report does not address what funding source will be tapped to cover theater operating expenses in the event that rental income is insufficient to pay the bills. For example, if only 6 rental events are held in a month when 12 were projected, who will be on the hook to cover the shortfall in revenue? Will the City’s General Fund be tapped to make up any operating losses from outsourcing operations of the theater? When rental income is insufficient, will the theater’s operating funds come out of Laguna Honda’s general fund operating budget intended to pay for patient medical care?

Still No Gift Shop, Other Unanswered Questions

Renne claimed, on March 6, that her Foundation is also assessing whether to re-open Laguna Honda’s patient gift shop. Although residents moved in to the new facilities fully two years ago, Laguna Honda’s other non-profit foundation, Volunteers, Inc., abandoned its decades-long funding of the gift shop, and the hospital has operated without one for the past two years, perhaps the only hospital in the Bay Area without a gift shop. If Renne’s Foundation has taken over two years to decide whether it should fund operations of the gift shop, how can it be expected to actually operate a community theater?

After all, AECOM recommended in its analysis, that operating a theater at LHH might be best done using a non-profit management model — surprise, Ms. Renne’s own non-profit gets AECOM’s nod — rather than using an in-house management, or contracted management model, in part because the hospital might potentially be given a seat on the Board of Directors of Renee’s Foundation. Renne adamantly told Commissioner Illig that she would not appoint a member of the Health Commission to her Foundation’s Board, so she could avoid “politics.” What makes the Health Commission believe that Renne would now appoint a hospital employee to her Board, when she wouldn’t appoint a Health Commissioner?

Renne’s “Assisted Living” Canard

Also on March 6, Renne asserted that her Foundation is standing by to assist with securing funding for assisted living housing on Laguna Honda’s campus. Readers may recall that in 2007, disability rights activists and others were sticker-shocked when the City announced its feasibility study for assisted living on the Laguna Honda campus would approach over $250 million to construct.

The senior rights activists rightly noted that converting Laguna Honda’s old buildings — the so-called “finger wings” fanning out from the main corridor on each floor — into assisted living housing was a bad idea. Although the finger wings were budgeted for asbestos abatement prior to demolition, cost overruns have eliminated from the project scope any asbestos abatement. Instead of demolishing the finger wings, plans have changed and the Health Department is now budgeting to rent out space in those buildings, or lease them for assisted living housing, rather than demolishing them.

Although senior housing advocates noted in 2006 that assisted living facilities deserve to be seismically safe, too, there was no funding available to retrofit Laguna Honda’s finger wings for seismic safety in 2007, and there is no funding for seismic safety available now.

If Renne’s Foundation was unable to raise one single penny during nearly an entire decade to assist with the $45 million it had pledged to raise for furniture, fixtures, and equipment, who really believes that her Foundation will be able to help raise over $250 million for assisted living housing any time soon?

Sadly, at the Health Commission’s November 6 meeting, San Francisco’s current Director of Public Health, Barbara Garcia, indicated the City might get some financial data if the Health Department signs an MOU with Renne to fix up Laguna Honda’s patient auditorium. Is Garcia engaged in magical thinking, expecting that Renne will actually sign an MOU and consent to providing financial data? Barbara: Will such disclosure be retroactive?

And would an MOU really be binding on Ms. Renne to actually raise an agreed-on amount towards assisted living? Or is this just more of Renne’s smoke and mirrors?

Rewarding Secrecy?

The Health Commission has no business awarding an MOU to operate Laguna Honda’s patient theater to an organization that it has previously fought tooth and nail to obtain basic, full, financial disclosure. Since Renne’s Foundation has refused to disclose revenue data for the first eight years of its initial operations, what makes the Health Commission believe it will start doing so now if it is granted a contract to operate the patient auditorium?

The Health Commission would never tolerate this level of secrecy from any of its other non-profit partners. Why is the Commission tolerating this behavior from former City Attorney Louise Renne? Is it because she’s above the law, or is it that open accountability is beneath her patrician sensibilities, much like Mitt Romney’s tax returns were too much for public disclosure?

Almost a decade into Renne’s stone walling, the Health Commission should simply sever all ties with her Foundation. The City should put a red light on any future collaboration with Renne until she starts accurately reporting her Foundation’s income and expenses. San Franciscans have had it with Renne’s dirty laundry.

Monette-Shaw is an open-government accountability advocate, a patient advocate, and a member of California’s First Amendment Coalition. Feedback: monette-shaw@westsideobserver.com.

December 2012

“Consensus Mayor’s” Sour Grapes

By Patrick Monette-Shaw

A legal theory holds that any law that “forbids an act in terms so vague that men of common intelligence and understanding must guess as to its meaning and differ as to its application violates the first essential of due process of law.” Mayor Lee was mistakenly advised he could go after his political foe, Sheriff Ross Mirkarimi, by invoking San Francisco’s overly-vague definition of official misconduct.

Although former Mayor Willie Brown has advised Mayor Ed Lee to get over and move beyond the Supervisors’ reinstatement of Sheriff Mirkarimi (“Mayor Lee, bury hatchet over sheriff case,” SF Chronicle, Oct. 27), Lee continues to pout sour grapes. “Slick Willie” should have advised Lee that continuing to harass Mirkarimi may well result in Lee being a one-term mayor.

After all, San Franciscans have not ceded our democracy to the vagaries of mayoral case-by-case “discretion,” nor have voters granted Lee the authority to replace our rule of laws with either his own rules of “decency” or his so-called “sound judgment.”

As Citireport editor Larry Bush noted in a recent post (“Big Mouths, Little Brains”) regarding the Supervisors’ vote to reinstate Sheriff Mirkarimi, “There has been so much stupidity to choose from that it’s hard to know where to start.” Bush was referring to the botched Ethics Commission and Supervisors hearings “consensus” Mayor Ed Lee launched.

The lack of ethical reasoning and hypocrisy — when not sheer stupidity — emanating from San Francisco’s City Hall with its cadre of Deputy City Attorneys, is shocking to San Franciscans.

Stupidity of Mayor Lee’s Lawyers

There’s no sympathy to be found for Ed Lee’s reliance on the legal strategy developed by Deputy City Attorneys Sherri Kaiser and Peter Keith, most probably with the concurrence of their boss, Dennis Herrera.

Forget for a moment that the Ethics Commission threw out the official misconduct charges Lee initially filed and that the Ethics Commission then rejected all six of the amended charges the Mayor substituted. Forget that in order to move the charges to the Board of Supervisors, the Ethics Commission hastily incorporated portions of the Mayor’s amended counts four and five into a new hybrid charge just minutes before voting on August 19, depriving Mirkarimi’s lawyers of an opportunity to prepare a defense against an eleventh-hour new charge.

Look to the testimony of Ms. Kaiser during the Board’s hearing. Throughout the Ethics trial, Kaiser convinced the Ethics Commissioners that there had to be a “relationship test” between “official duties” and an official’s behavior. But at the Board’s hearing, Kaiser changed her tune, first saying that the decision to remove an elected official should be made on a case-by-case basis by relying only on the “sound judgment” of the Mayor, Ethics Commission, and the Supervisors. Then, Kaiser changed her tune again, saying that it is entirely a discretionary — not a “sound judgment” — decision and that it is not up to the Board of Supervisor’s to use their personal views of what the standards of conduct should be for the Sheriff.

Kaiser repeatedly said on October 9 that it would be “really wrong” to leave the removal of the Sheriff to a recall election. She claimed that voters had given the Mayor and Ethics Commission a clear definition of official misconduct, that voters “have determined for themselves how they wish to be governed,” and that they “would like to be governed” by asking their “Mayor, their Ethics Commission, their Board of Supervisors, to take action to protect them” via the official misconduct process, rather than a recall.

Kaiser went so far as to compare Mirkarimi to a hypothetical Animal Control Officer who might be running a dog fight ring on his private time. When Kaiser said, “No one wants Michael Vic in control of the Animal Control Department,” she was booed by the audience for blurting out such a stupid analogy, but she charged ahead, anyway.

Kaiser stated that the Mayor “certainly does not agree with Commissioner Hur’s decision to emphasize the need for a bright-line rule” that would clearly, and narrowly, define official misconduct. Kaiser claimed that voters had intended to infer broader, not narrower, interpretation of official misconduct.” She went so far as to say that a so-called bright line rule seeking “clarity simply for the sake of clarity, predictability simply for the sake of predictability, is not a reason to … narrowly constrict ethical duties of officers.”

More so than Supervisor Christina Olague, Supervisor Jane Kim peppered Kaiser with astute questions. Kim noted that Kaiser testified to the Board that the “relationship test” was not enough (which was odd, since Kaiser had focused heavily on the relationship test during the Ethics hearings). Kim asked Kaiser: “So it would be a relationship test, plus what the Mayor and the Ethics Commission [determined], what we deem as falling below the standard of decency, and that is [on] a case-by-case basis?” At first, Kaiser responded, “Yes, that’s correct.” Then corrected herself, saying “I think it is a discretionary decision … I think that it is, at bottom, a judgment call.”

Kaiser’s waffling startled Kim, who then asked “Does that open us up to the vagueness issue, which may make that clause then unconstitutional, because then a person may not reasonably be able to predict when their behavior is official misconduct or not?” Honing in on the “standard of decency” clause added to the Charter in 1995, Kim noted that any standard of decency may change over time, depending on who is appointed to the Ethics Commission, who has been elected Supervisor, and who is the elected Mayor, opening the question of whether the definition is too vague to determine what is or isn’t official misconduct.

That’s when Kaiser replied it is not up to the Supervisor’s personal views, and the standards of decency and conduct are “position-specific” that should be discerned with the help of people in a given profession, not by the Board. If that’s the case, why were the Supervisors even involved?

Kaiser Falsely Claims “No Legislative History”

Kaiser repeated that the voters put the official misconduct tool in the Mayor’s and Board’s hands to serve the people’s will to remove officials without the trouble of a recall election. She claimed that there was “no legislative history, no ballot history, that sheds light” on the intent of the authors of the Charter’s official misconduct provision.

In a contrary opinion, Mr. Bush notes that he covered every session of the Charter Revision Committee in ‘94 and ‘95 that wrote the official misconduct language, and the drafter’s intent had not been to update the Charter language to address the Superior Court ruling in Airport Commissioner Larry Mazzola’s case. Bush asserts the intent of the Committee was to address “concerns that a ‘moral character’ provision was a left-over of the language used to bar people from professions based on sexual orientation.” Bush notes that neither the Ethics Commission nor the City Attorney bothered going to the Main Public Library where the Committee’s minutes are archived to see the legislative and ballot history.

Other observers have noted that the 1995 voter guide contained a digest by then City Attorney Louise Renne that explicitly described the changes in our ethics law as insignificant. Clearly, voters weren’t told in ‘95 that they would be giving new powers to the Mayor, or that they would be ceding to the Mayor authority to make discretionary decisions to remove elected officials without a recall election. Had voters been told that the Mayor would gain such authority the amendments would not likely have passed and we’d still have the “moral character” provisions.

Vague Is as Vague Does

Ms. Kaiser testified that the people — the voters — put the official misconduct language into the City Charter. She asserted that the language isn’t “vague,” the language makes it more “nimble” when determining official misconduct.

Kaiser was completely misguided during her Board testimony. Voters never get to choose the actual legal text of ballot language put before them, unless it involves a citizen-initiative measure. Voters have no say over the language chosen for measures placed on the ballot by the Mayor or Board of Supervisors.

California courts permit vague ballot measures because they are sensitive to the need of government in large urban areas to delegate broad discretionary power to administrative bodies without paralyzing local jurisdictions.

Ms. Kaiser now claims that if the official misconduct language is too vague, it’s because the voters chose to approve the vagueness put before them written by someone else, over preciseness.

Seven Stupid Supervisors

October 9 was a very dark day for San Franciscans, because only four of our eleven Supervisors voted to reinstate Sheriff Ross Mirkarimi. Supervisors Christina Olague, Jane Kim, David Campos, and John Avalos reached the correct conclusion: That Mirkarimi’s behavior — deplorable as it may have been — did not rise to the definition of official misconduct.

In stark contrast, the remaining seven District Supervisors — including Mark Farrell, Sean Elsbernd, Malia Cohen, Carmen Chu, Scott Wiener, Board President David Chiu, and Eric Mar — knowingly voted to hand the Mayor unlimited precedent-setting power to bring official misconduct charges against political foes, a process ripe for political shenanigans and mayoral abuse. All seven also knowingly voted to accept the Ethics Commission’s constitutionally vague interpretation of official misconduct. Had these seven Supervisors prevailed, they would have knowingly handed to some future court proceeding — as Mr. Bush reports — clear evidence that the official misconduct charges against Mirkarimi were unconstitutionally vague, since the Mayor and the Ethics Commission never adequately defined official misconduct (and can’t, unless they ask voters to change the Charter again).

In a clear example of irony, four of the seven Supervisors who voted to oust Mirkarimi were referred by the Sunshine Ordinance Task Force to the Ethics Commission over probable official misconduct themselves. The four — the Board’s then Land Use and Economic Development Committee composed of Supervisors Mar, Cohen, and Wiener — along with Board President Chiu, appear to prefer handing the Mayor unlimited power to bring official misconduct charges on a case-by-case, unconstitutionally-vague basis, without any clear standard of the definition of official misconduct that would apply to all City employees.

Ed Lee’s Unequal “Discretion”

Mr. Bush notes: “None of this can obscure the reality that it was Ed Lee who is responsible for the defeat of his Official Misconduct charge.” Bush reported that Lee testified under oath at the Ethics Commission that he had not given any attention to the City Charter’s requirements for official misconduct charges, admitted he had no written policy regarding official misconduct, and then insisted that even if an individual case involved a criminal conviction, he would still use his “discretion” on whether to pursue official misconduct charges on a case-by-case basis. Bush notes this may end up being a text book example of the description of “vague” as one can find, which judges all too often find objectionable.

Bush has documented Mayor Lee’s and the Board of Supervisor’s unequal application of “discretion.” For instance, although the Ethics Commission referred a case of official misconduct against Library Commission president Jewelle Gomez to the Mayor, requesting that the Mayor remove her from an appointed position, the Mayor has ignored the Ethics Commissions recommendation for over a year, and has not taken any action against Gomez.

Worse, on June 14, 2011, ten of our current Supervisors (excluding Olague [she was not yet appointed]) confirmed by a unanimous 11-to-zero vote the appointment of Julius Turman to the Police Commission, despite the fact that the Board of Supervisors knew (or had to have known), that Turman had been arrested over domestic violence charges. Turman’s former boyfriend, Philip Horne, had accused Turman of beating him up on January 2, 2006, giving Horne a bloody nose, scratches, and a loosened tooth. Horne alleged that then-District Attorney Kamala Harris didn’t prosecute because of Turman’s political connections. Despite the fact that the felony domestic charges were dropped by prosecutors, Turman settled out of court with Horne for an undisclosed amount. Is there no “nexus” between Horne’s domestic violence history and his duties as a Police Commissioner?

While Supervisor Jane Kim dissented in the Rules Committee regarding Turman’s appointment, indicating she had concerns about appointing people to a police oversight body if there were questions about an applicant’s past and experience that might weaken their oversight “capacity,” Kim nonetheless voted along with the full Board to appoint Turman, despite his domestic violence history.

Not only did the Board unanimously appoint Turman to the Police Commission, apparently no domestic violence prevention agency publicly opposed Turman’s confirmation. Neither Andrea Shorter, a political consultant who chairs the City’s Justice and Courage Oversight Panel, nor Kathy Black, director of La Casa de las Madres, a shelter for domestic violence victims, spoke up to object to Mr. Turman’s appointment, despite the initial felony domestic violence charges against him. Are Shorter and Black, and the rest of the domestic violence prevention community, selectively holding Mirkarimi to a different standard than they apply to Turman, on a case-by-case basis?

Then there’s the problem of unequal treatment of Fire Chief Joanne Hayes-White. Mr. Bush notes that “over the past several years, cases involving high profile or politically connected individuals have been dropped. This includes a police report on Fire Chief Joann Hayes White, accused by her husband of hitting him repeatedly in front of their children.” Seems that neither the Mayor, the Board of Supervisors, nor the domestic violence prevention community wants to hold Chief Hayes-White to the new “standard” they invented to hang the Sheriff. More hypocrisy and selectively unequal treatment for favored politicians and City officials.

Supervisor Wiener Requested a “Do-Over”

Just thirty seconds before the Board of Supervisors were to cast their votes determining Mirkarimi’s fate, misguided Supervisor Scott Wiener asked whether the Board could have a “do-over,” asking “Are we able to sustain any charge alleged by the Mayor, whether or not the Ethics Commission recommended sustaining of that charge?”

Scott Emblidge, the special attorney advising both the Board and the Ethics Commission — as if there was no conflict of interest between a single lawyer advising both bodies — responded that the Board “[is] able to sustain any charge,” but that the Board needed to be voting on the same thing.

This shocked observers, who believed that the Board could only consider charges brought by the Mayor that the Ethics Commission had actually sustained. Wiener — and everyone else — knew at that point in the proceeding that the Board was about to hand Mr. Mayor an embarrassing loss on a 7-to-4 vote, when the Mayor needed at least nine votes to prevail.

But Wiener wanted to turn the clock back to reconsider charges that the Ethics Commission had clearly already rejected. Despite being advised that the Board could reconsider what Ethics had rejected, Wiener curiously decided not to pursue a do-over and let the issue go, even though he appeared eager to resurrect the Mayor’s flawed charges against Mirkarimi.

Misguided Media

On October 10, the day after the Board of Supervisors voted 4 to 7 to reject the Ethics Commission’s recommendation against Mirkarimi, the San Francisco Chronicle published an editorial (“Shame on four supervisors”), alleging that the four “rationalized” their votes by raising “the question of whether a man elected to be sheriff could commit official misconduct before actually taking office.” The Chronicle was disingenuous: The Board of Supervisors had not raised that question; indeed, that whole question had been raised by the Mayor and an all-too-eager-to-please Ethics Commission that did everything it could to avoid answering that question. The question Ed Lee posed to the Ethics Commission, and the question the Board of Supervisors were asked to answer (but avoided), was whether there has to be a “nexus” between any official duties, and actual behavior.

For her part, Melissa Griffin over at the San Francisco Examiner, opined on October 18 that since the sexual battery charges against District 5 supervisorial candidate Julian Davis is a misdemeanor, the four Supervisors (who did not find a nexus between Mirkarimi’s official duties and his wife’s bruised arm) had somehow concluded that Mirkarimi’s behavior had been acceptable for a public official to commit. Like Deputy City Attorney Sherri Kaiser before her, Griffin attempted to draw parallels between Mirkarimi’s wife’s bruised arm, and child abuse, elder abuse, assault, battery, and hit-and-run cases that occurred after-hours, or before assuming office.

Griffin then lamented that an “unsuspecting public” has been “burdened” by the task of mounting a recall effort against Mirkarimi, making “it easier for abusers to remain in office.” Griffin asserts the four supervisors are “cowards” for foisting an expensive, time-consuming, recall process against Mirkarimi onto voters. But Griffin mentions nothing about the expensive $1.14 million in City Attorney costs the Mayor has racked up mounting a failed effort to oust Mirkarimi during the Ethics Commission’s probe. Worse, Griffin studiously ignored Deputy City Attorney Kaiser’s assertion that a recall election is the wrong approach.

Notably, Griffin mentions not one word about abuser Turman remaining in office as a Police Commissioner. Perhaps that’s because Turman and Jewelle Gomez are both African Americans; both are appointees, not elected officials; and both are reportedly gay or lesbian, as opposed to Mr. Mirkarimi, who appears to be straight. Indeed, Griffin wails about violence against women, but mentions nothing about the domestic violence against men inflicted by Turman and Hayes-White.

For its part, the Examiner editorialized on October 14 (“People deserve a say in the Mirkarimi case”), that if voters are unhappy with the way the four Supervisors interpreted the City Charter in Mirkarimi’s official misconduct case, voters should mount the very recall process Griffin believes is “burdensome,” and which recall process the Mayor’s own attorney, Ms. Kaiser, believes is “wrong.”

Never mind that the four Supervisors correctly interpreted the City Charter, the Examiner wails. What’s important, the Examiner asserts, is that “any incident of domestic violence is inexcusable.” The Examiner appears to have turned a blind eye to the domestic violence allegations against both Turman and Hayes-White. By its lack of logic, the Examiner appears to believe that Turman’s and Hayes-White’s behavior was excusable, but that Mirkarimi’s was not.

In addition, while Mirkarimi has now been thoroughly “investigated” by the Mayor, the Ethics Commission, and the Board of Supervisors, the Examiner now asserts that although Mirkarimi appears to have been absolved of the official misconduct charges by the official processes put in place to protect voters, Mirkarimi now deserves to be handed double-jeopardy by being “tried” all over again via a recall election. How many times is the guy going to get tried for a single “crime”? If our elected leaders can’t, and haven’t, agreed on whether “official misconduct” occurred, how can the Mayor, Ms. Kaiser, and the Examiner believe that voters — the vast majority of whom are neither lawyers, nor have likely been trained in ethical issues — should now be expected to discern definitively what legal scholars and ethicists were unable to discern?

Consensus Mayor’s Sour Grapes

On October 10, the day after Mirkarimi was reinstated by the Board of Supervisors, District Attorney George Gascón released a statement demanding that Mirkarimi recuse himself from the supervision of domestic violence activities in his department. Gascón reportedly threatened Mirkarimi with “legal action” if he didn’t recuse himself.

Larry Bush notes that Gascón’s demand appears to have little meaningful impact, as there is nothing in the Charter that permits the District Attorney to demand an elected official — abandon duties set in the Charter.

Bush notes that a CitiReport investigation revealed Police Department records showing 3,515 police reports of domestic violence were filed, but that Gascón’s District Attorney staff filed only 245 misdemeanor cases and 240 felony cases — totaling just 14 percent — of the 3,515 police reports. Bush also reports that a San Francisco Public Press investigation revealed Gascón’s District Attorney Domestic Violence Team reviewed about 8,600 criminal cases but dropped about 6,200 of them without going to court, and that the incidence of dropped cases has actually increased under Gascón’s tenure.

Given Gascón’s domestic violence track record, he’s displaying pure hubris demanding anything from Mirkarimi. And where are Ms. Black and Ms. Shorter in this? Why aren’t they screaming their heads off over Gascón’s pathetic domestic violence record, selectively focusing only on Mirkarimi? How can Mayor Sour Grapes look anyone straight in the face — or himself in the mirror — refusing to bury the hatchet and actually work with Mirkarimi, while throwing his mayoral arms around hypocrite Gascón? And why has Melissa Griffin all but ignored Gascón’s lousy record, while she foams at the mouth over Mirkarimi?

Not to be outdone, on October 26 Mayor Lee wrote to Mirkarimi, now alleging that certification of batterers’ intervention programs “may be in jeopardy.” [Note Lee’s use of “may be,” not “are,” and that Lee appears to have raised this issue only after the Supervisors reinstated Mirkarimi.] Turning the screw, Lee now asks Mirkarimi why he’s qualified to oversee the Sheriff Department’s domestic violence programs. It appears that the sour grapes Mayor just can’t let go of his loss at the Board of Supervisors.

On Monday, October 29, news broke that Mayor Lee’s prominent ally — Silicon Valley billionaire Ron Conway and his wife Gayle — formed an independent expenditure committee to oppose Supervisor Olague in next week’s District 5 election. Previously, the Conway’s contributed $500 each to Olague’s election campaign, but their new independent expenditure committee — which can raise an unlimited amount of money — has quickly amassed, at minimum, $120,000 to go after Olague in retaliation for her vote to reinstate the Sheriff.

Can anyone say, “Citizen’s United”? How much meddling will the out-of-towner billionaire Conways do on behalf of their friend, Ed “Sour Grapes” Lee? How much money-equals-speech will the Conways throw against Olague to unseat her by buying an election? The Mayor is misjudging San Franciscans’ tolerance for sour grapes.

Will the Conways also target Supervisor Jane Kim’s re-election campaign in 2014?

On a personal note, I am offended that the Mayor continues to equate the bruise Mirkarimi’s wife sustained to the sexual molestation my three sisters endured from our father (leaving one of them with life-long mental illness), and my father’s intermittent psychological abuse of my mother for 22 years. The Mayor’s insistence that a bruise is somehow equal to what they endured is a slap in the face to my sisters and mother — and by extension, a slap in mine — denigrating their collective trauma.

When the Mayor and District Attorney Dennis Herrera run for re-election, voters should toss them both out of office — Herrera for allowing his subordinates to mount this ridiculous case against Mirkarimi, and Lee for pouting like a child after losing a blatant, politically motivated witch-hunt.

If voters don’t rout both men from office, they’ll be handing our democracy over to demagogues, and billionaires buying City Hall influence.

Monette-Shaw is an open-government accountability advocate, a patient advocate, and a member of California’s First Amendment Coalition. Feedback: monette-shaw@westsideobserver.com.

Democracy San Francisco Style

Swimming in “Official Misconduct”

By Patrick Monette-Shaw

Is San Francisco governed by its rule of law, or by the law of its rulers?

The hypocrisy of San Francisco’s Board of Supervisors and its Ethics Commission no longer comes as a surprise to most open government observers; hypocrisy clearly visible in two cases is currently shedding light on the death of democracy in San Francisco.

The first case involves the Board of Supervisors, which wrongly alleged that the Sunshine Ordinance Task Force (SOTF) violated the City Charter, when in fact the Task Force had not. Supervisor Scott Wiener — who the Task Force found engaged in official misconduct regarding the Parkmerced development deal — went so far as to allege that the SOTF had engaged in “official misconduct” when the Task Force had done no such thing.

The second case involves the Ethics Commission’s recommendation now submitted to the Board of Supervisors to remove Sheriff Ross Mirkarimi from office for “official misconduct;” to reach that recommendation the Ethics Commission itself appears to have violated the City Charter by exceeding its authority.

It will now be up to the Board of Supervisors to explain how the Ethics Commission could be permitted to violate the City Charter in the Mirkarimi matter, while the Supervisors make false claims against the Task Force.

Sunshine Task Force Shut Down

The Observer reported in its last several issues that the Board of Supervisors has effectively shut down our local Sunshine Ordinance Task Force, the quasi-judicial body with which citizens can file administrative complaints regarding open access to public meetings and public records. As reported, the Task Force has not met and conducted any of the people’s business since the end of May.

Because the Board of Supervisors improperly removed the ordinance-required physically disabled Task Force member and failed to appoint another physically disabled member, the Task Force was forced to abruptly adjourn its June 6 and July 7 meetings, and cancelled its August 1 and September 5 meetings since the body was not in compliance with Sunshine Ordinance section 67.30(a) that requires a physically-disabled member sit on the Task Force at all times.

Although the Board of Supervisors had to have known of this legal requirement since at least June, the Supervisors have not appointed a disabled member during the past four months. Unfortunately, on Wednesday, September 19, the Task Force also cancelled its October 3 meeting, because a disabled member had still not been appointed when the Board of Supervisors rejected re-appointing Bruce Wolfe a second time. The Task Force, and citizens who have filed legitimate Sunshine complaints, have been immobilized for five months.

Supervisors Invoke “Let’s Get Even” Retribution

As previously reported, the issue that launched the Board of Supervisors ire and their “let’s get even” retribution involved a Sunshine complaint regarding the Parkmerced development deal, which resulted in four members of the Board of Supervisors referral by the Sunshine Task Force to the Ethics Commission over allegations of official misconduct. Pastor Lynn Gavin — a candidate for the Board of Supervisors in District 7 and a resident of Parkmerced, until being unjustly evicted — filed a Sunshine complaint alleging that the Board of Supervisors wrongly considered 14 pages of last-minute amendments to the Parkmerced development agreement just minutes before voting on the matter, but without providing the amendments to members of the public prior to their vote. The Task Force ruled the last-minute amendments violated the Sunshine Ordinance, and referred the matter to the Ethics Commission for enforcement of official misconduct against four City supervisors, including David Chiu and Scott Wiener.

Reportedly, the Board of Supervisors were not as annoyed so much by the SOTF’s referral to Ethics as they were by the Task Force’s additional referral of the Parkmerced violation to the District Attorney. The Task Force began referring official misconduct complaints to the D.A. following years of inaction on official misconduct cases referred to the Ethics Commission, which has dismissed without public hearings all previous official misconduct cases referred to it by the Sunshine Task Force, except the case against Library Commission president Jewelle Gomez.

Supervisors Haven’t Learned Their Lesson

During the full Board’s September 18 meeting, the Supervisors considered the Clean Power SF public power measure with Shell Oil. Supervisor Wiener, along with other Supervisors, complained during the September 18 hearing that they had been handed several amendments to the Clean Power SF measure just as they were walking into Board chambers to cast their votes. Clearly, members of the public weren’t provided copies of Clean Power SF amendments before the September 18 hearing, repeating the same situation as the Parkmerced amendments.

This suggested that the Board of Supervisors hasn’t learned its lesson about complying with the Sunshine Ordinance, given that it again willfully engaged in what can only be considered “official misconduct.”

Ethics Commission Violates City Charter

San Francisco’s mainstream daily news media have reported only the most superficial information about the issues underlying Mayor Ed Lee’s official misconduct charges against Sheriff Ross Mirkarimi. In stark contrast, a detailed, dispassionate analysis was posted anonymously on September 9 in a blog article titled “San Francisco Ethics Commission Official Misconduct Proceeding Against Sheriff Ross Mirkarimi — Thoughts on Final Hearing – August 16, 2012.”*

The anonymous author thoughtfully presents successive observations about the deliberations of the Ethics Commission, raising about ninety well-reasoned arguments of how the Ethics Commission went astray.

In a series of tables, the author examines each of the Mayor’s six counts against Mirkarimi—counts that had to be revised and reintroduced after the Ethics Commission rejected the Mayor’s initial charges. Notably, none of the Mayor’s revised six counts were sustained in full by the Ethics Commission, which rejected four of the six counts outright, and then created a single hybrid new charge by picking and choosing portions of the remaining two counts. The hybrid charge was raised just minutes before the Ethics Commission voted four-to-one against Mirkarimi, depriving him of the information, vital to his defense, of what charge he was actually fighting until just seconds before the Commission’s verdict.

The author illustrates quite clearly that the only sustained supporting fact (Mirkarimi’s wife’s bruised arm on New Year’s Eve) did not relate to any of the Sheriff’s duties of office, so it can’t possibly be “official misconduct” related to Mirkarimi’s official duties.

The author examines the new “relationship” tests the Ethics Commission dreamt up to evaluate whether any relationships existed between Mirkarimi’s alleged wrongdoing and the office(s) he held. The Ethics Commission went to great lengths to dream up new relationships to support the Mayor’s charge that Mirkarimi’s conduct had fallen “below the standards of decency, good faith and right action impliedly required of” elected officials. Ethics Commissioner Paul Renne considered it pointless to discuss any “relationships” at all. But Commissioners Liu, Studley, and Hayon held to their moral certainly that Mirkarimi was guilty, and through “backwards reasoning,” they simply made up a middle-ground “relationship” test.

But the made-up requirements are so diluted that they amount to no requirement at all, exactly what Commissioner Renne had insisted: No direct relationship between duties of office held and alleged conduct was necessary.

The anonymous author concludes that a court will likely conclude in the future, and reject out of hand, Renne’s blatantly unconstitutional interpretation of the definition of official misconduct. The author also believes that with just a bit more effort, a court will also reject the “backwards reasoning” Commissioners Liu, Studley, and Hayon used to arrive at the same unconstitutional conclusion.

The analysis concludes with two key points: First, the Ethics Commission was strictly limited to a single legal question: Did a public official commit “official misconduct” as defined in City Charter Section 15.105(e), or not? The Ethics Commission didn’t answer this question.

“Upgrading” Charges Exceeded Commission’s Authority

Instead, they made up their own rules. The author notes, “Voters never granted the unelected five-member Ethics Commission the authority to make recall decisions for them. Its authority is strictly limited to a legal question. … The Ethics Commission may not exercise authority it has never been granted by ‘upgrading’ non-official misconduct to ‘official misconduct’ merely because the Ethics Commission is confident — even certain — that voters would not have elected the official had they known what the Ethics Commission has since learned.”

The only way the Ethics Commission could do that would be by substituting their own political judgment for the judgment of voters, but they have no authority to do that, either.

Second, how far back in time can a Mayor or Ethics Commission look to uncover evidence of former improper misconduct in misguided attempts to find relationships to previous conduct and an elected or appointed office held? Eight months? Two years? An entire lifetime?

If this new “standard” is upheld, every City employee could face removal by a vindictive Mayor. Who would ever choose to become a public servant or public employee with rules like that in place? If Mayor Lee is allowed to make up these rules as he goes along, what’s to stop him from fabricating charges against, say, Supervisor Sean Elsbernd or Supervisor Scott Wiener? Is any employee safe with this sort of a precedent, and does the Board of Supervisors really want to hand such open-ended authority to the Mayor in perpetuity? How would that work under a really rotten mayor?

By making up the rules of the misconduct proceedings against Mirkarimi as they went along, the Ethics Commission appears to have violated the City Charter itself by exercising authority it has not been granted.

*Further reading: The dispassionate, anonymous analysis of the Ethics Commission’s handling of Sheriff Ross Mirkarimi’s case can be found online at http://rjemirkarimi.blogspot.com/2012/09/ethics-commission-proceeding-against.html. It is well worth the read.

Monette-Shaw is an open-government accountability advocate, a patient advocate, and a member of California’s First Amendment Coalition. He received the Society of Professional Journalists–Northern California Chapter’s James Madison Freedom of Information Award in the Advocacy category in March 2012. Feedback: mailto:monette-shaw@westsideobserver.

Wiener Out of Control

Skullduggery at Board of Supervisors leaves City Hall wide open for corruption to run rampant

By Patrick Monette-Shaw

San Franciscans should not only be alarmed by the now four-month complete shutdown of our local Sunshine Ordinance Task Force (SOTF), we should pay close attention to how the shutdown of the SOTF came to pass.

Last Sunshine Task Force: Suzanne Manneh, Allyson Washburn, Vice Chair Bruce Wolfe, Jay Costa, Richard Knee, Jerry Threat (City Atty), Chair Hope Johnson and SOTF Administrator Andrea Ausberry

As the Observer reported in July in “Who Killed Sunshine?” Supervisor Scott “The Tinkerer” Wiener single-handedly killed open government by shutting down our local Sunshine Task Force, leaving San Franciscans without any citizen oversight of access to public meetings and access to public records, and leaving City Hall wide open for corruption to run rampant. To support his false claim that the Sunshine Task Force engaged in official misconduct of its own and had undermined transparency in government, Wiener failed to provide any evidence and lied at least four times during a full Board of Supervisors meeting on May 22.

He wrongly claimed on May 22 that the Task Force had exempted itself from the San Francisco Charter, and wrongly claimed the Task Force had said “How dare you shine sunlight on us?” when the Task Force had never claimed any such thing. Wiener claimed he asked for an “audit” of the costs of compliance with the Sunshine Ordinance, when in fact he asked for a “survey.” Wiener also inflated the average number of times City employees had to attend hearings to resolve Sunshine complaints.

Official Misconduct Clearly peeved that the Task Force had referred him to the Ethics Commission for official misconduct 1n September, 2011 over the Parkmerced development deal, Wiener engineered kicking physically disabled member Bruce Wolfe off the SOTF on May 22, filling the remaining “member of the public” seats with non-disabled appointees.

Photo: Bruce Wolfe with his guide dog Lady

Wolfe was the only physically handicapped member of the Task Force, which now has been unable to meet for four months due the lack of a physically disabled member. The Board of Supervisors knowingly removed the only disabled member of the SOTF and failed to appoint a disabled replacement, as required by Sunshine Ordinance Section 67.30(a). The Supervisors did this, despite the fact that over half of them are lawyers who should have known of this legal requirement in the Sunshine Ordinance — including Supervisor Scott Wiener, a Harvard Law School graduate and a former SF Deputy City Attorney.

Non-Compliance Adjournments On both June 6 and July 11, the Task Force voted to adjourn its meetings without taking any action on its agendas due to not being in compliance with Sunshine Ordinance Section 67.30(a). The Task Force subsequently cancelled its August meeting for being non-compliant with Section 67.30(a), and will also have to cancel its September meeting, as a disabled member has not yet been appointed to the Task Force.

Wiener’s Latest Misinformation

On July 17, during a hearing to re-appoint Michael Antonini to the Planning Commission, Supervisors David Campos and Jane Kim criticized Wiener’s handling of the SOTF appointments on May 22. Campos and Kim noted that the SOTF members removed on May 22 were ousted because they took a “different approach” than members of the Board of Supervisors may prefer.

History Re-written True to form, Wiener didn’t skip a beat, using revisionist history to lie again. Wiener claimed that the actions to remove Task Force members on May 22 were “primarily taken by the Rules Committee and to a lesser extent by the full Board [of Supervisors].” Wiener repeated his remarks that “the Sunshine Task Force was being run in an incompetent manner which violated the City’s Charter,” and that it was the Rules Committee that “recommended removing almost all the [SOTF] incumbents except for one and the [full] Board voted to remove that final incumbent. So the majority of the removing happened before [the nominations] got to the full Board,” Wiener testified.

This is patently untrue, and Wiener’s revisionist history-making.

First, the Rules Committee forwarded a recommendation to re-appoint Member Wolfe, and it was, indeed, the full Board that overturned the Rules Committee recommendation, the lie being that the full Board did not play a “lesser extent” role, they played a very aggressive role under Wiener’s insistence to remove Wolfe.

Second, of the 10 vacancies on the Sunshine Task Force considered on May 22, only half (five) were new appointees. Wiener incorrectly claimed on July 17 the remaining five were removed by Rules, since one member (Wolfe) was actually recommended for re-appointment by Rules, and the other four were continued to the call of the Rules Committee’s chair.

“Different Approach” Proviso Indeed, several of the Supervisors expressed concern on July 17 that removing appointees such as Antonini or Wolfe from boards and commissions based solely on whether the appointees exercise a “different approach” than would the Board of Supervisors will open a can of worms. Indeed, what seems to annoy “The Tinkerer” Wiener the most is that, while the Board of Supervisors can review or modify decisions of the Planning Commission, the Board has no authority to review or modify decisions made by the Sunshine Task Force.

How Did We Get Here?

On Thursday, May 17, 2012, the Rules Committee considered the nominations of 23 applicants for appointment to 10 of the Sunshine Task Force’s 11 seats. Following testimony and debate, the Rules Committee forwarded to the full Board of Supervisors the names of six applicants recommended for appointment to six of the SOTF’s seats, including Bruce Wolfe for Seat 8, the seat Wolfe has held for a number of years. For unknown and unstated reasons — but most likely at the Wiendr’s request — Supervisor Mark Farrell introduced a motion on May 17 to “divide” the recommendations for Wolfe’s appointment from the other five recommendations; but Wolfe was recommended separately for re-appointment.

The Rules Committee also recommended to place appointment of four other SOTF seats to the “Call of the Chair,” continuing those appointments to a future Rules Committee meeting when its chairperson schedules a subsequent hearing to finalize the four remaining appointments.

The SOTF appointments were first received on May 9, and assigned to the Rules Committee for a hearing eight days later on May 17. The full Board considered the Rules Committee recommendations during a Committee Report on May 22, when Wiener engineered overturning the Rules Committee recommendation to re-appointment Wolfe — throwing Wolfe off the Task Force, as the Westside Observer reported in our July issue.

Wiener’s Crony Appointment Wiener’s nominee to replace Bruce Wolfe was Todd David, who appears to have had no qualifications to serve on the Sunshine Task Force. Indeed, Mr. David’s application listed no qualifications to serve. Mr. David’s Form 700, Statement of Economic Interests — a document required as part of SOTF’s application process — failed to include the pre-printed form, Schedule B, Interests in Real Property. Instead, Mr. David submitted a written statement in lieu of Schedule B in which he neglected to report the appraised value of a multi-family residential property he owns at 384 Eureka Street appraised at $2.1 million, and neglected to report rental income he receives from the multi-unit property.

Notably, although the Rules Committee had only considered David’s typed statement, rather than the required Schedule B, the Rules Committee did not recommend Mr. David for appointment to the Task Force. It was Wiener who chose to substitute Todd David in place of the Rules Committee’s recommended appointee, Bruce Wolfe.

Complaints Following a Complaint to the Board of Supervisors that it should not have accepted a typed statement in lieu of the Schedule B, a Board clerk replied that it would be disclosed only if Mr. David submitted the actual Schedule B to the Ethics Commission; the Board’s clerk appeared unwilling to ask Mr. David to re-submit the required form.

On a complaint filed with the California Fair Political Practices Commission (FPPC) regarding Mr. David’s substitution of a typed statement in lieu of Schedule B. The FPPC determined David had violated California’s Political Reform Act by failing to disclose his interests in real property and issued a warning letter to Mr. David on August 22, after he submitted the proper Schedule B.

More of Mr. David’s Forgetfulness

During a Board hearing on his appointment to SOTF, David stated that “There’s nothing more important for government than to be transparent so that the voters who have elected you know that you’re making really good decisions.”

David’s “transparency” seems to be entirely opaque. In addition, there were a number of other oddities on his application to the SOTF, and his responses to transparency questions are troubling.

Discrepancy When asked why his application hadn’t indicated that the California Secretary of State suspended “TSD Capital, LLC’s” (Todd Stuart David Capital) privileges to operate as a business entity in California in December 2011 for failure to meet franchise tax requirements because he failed to file a return or failing to pay taxes, David responded only that he needed to speak with the Secretary of State about this “discrepancy,” since David claims he filed a “final” tax return for his TSD Capital business “three or four years ago” dissolving that business. Why the State took action in December 2011, and Mr. David is only now learning that a “discrepancy” exists with State records is curious, at best.

Can’t Recall When asked why he submitted his application on April 27, he couldn’t recall. The date April 27 is significant as being the last date of any SOTF appointee’s term, and the date on which previous member’s appointments were scheduled to end.

Insider Maneuver When asked why he faxed his SOTF application to Supervisor Wiener’s fax machine, instead of the Clerk of the Board, David lamely claimed he had Wiener’s fax number handy, and had asked Wiener’s staff to just walk his application down the hall to the Clerk of the Board. Why did David seek Wiener’s intervention, when Wiener doesn’t sit on the Board’s Rules Subcommittee?

Notably, Wiener does sit on the Board’s Land Use and Economic Development Subcommittee, which subcommittee may be asked in the future for a land use change to convert a parking lot in Noe Valley into a mini-park to prevent the parking lot being sold and turned into condos. Mr. David serves as the president of Resident’s for Noe Valley Town Square, an organization planning to secure a $2 million Open Space Funds commitment from the City’s Recreation and Parks Department. Asked if anyone is hoping that by Mr. David serving on the SOTF it may help the Resident’s for Noe Valley Town Square secure the $2 million in Open Space Funds, he responded that “the project will or will not receive funding base [sic] on its own merits.”

“I don’t recall” When asked why he hadn’t listed several of his civic affiliations on his SOTF application — as Executive Director of edMatch, and as a steering committee member of Parents PAC (a political action committee) — David replied “I don’t recall” why he had omitted both affiliations from his application, calling into question whether Mayor Ed “I Don’t Recall” Lee is now coaching others on how to use former Mayor Willie Brown’s “I don’t recall” line of defense.

Parallels to the Mirkarimi Case

On August 16, the Ethics Commission deliberated its findings against Sheriff Ross Mirkarimi. Troublingly, Mirkarimi’s lawyer David Waggoner noted that the Ethics Commission had not sustained in full any of the six charges in the amended charging document with which Mayor Ed Lee eventually charged Mirkarimi. Waggoner noted that the Ethics Commission had instead substituted some sort of a single hybrid charge that it made up on the spot on August 16, combining portions of separate charges that weren’t completely sustained into a fresh new charge that surfaced just seconds before Ethics concluded its deliberations, a new charge Mirkarimi hadn’t even been aware of during the Ethics Commission’s months-long kangaroo court.

Waggoner also noted that if the Ethics Commission rejected some of the counts against Mirkarimi, by the clear language of the Charter, the Commission wouldn’t be sustaining all of the charges, and if Ethics wasn’t going to sustain all of the initial charges, then the Commission couldn’t recommend Mirkarimi be removed, because the Charter’s clear language doesn’t give the Ethics Commission the option to pick and choose among some charges, but not other charges.

Grave Concerns To his credit, Ethics Commission president Benjamin Hur was the lone dissenting vote against finding Mirkarimi guilty of official misconduct. Hur indicated he had “grave concerns” that overly-broad interpretations of which behavior constitutes official misconduct may give mayors a “strong tool” — and perhaps free license — to attempt to remove political opponents inappropriately.

The parallels between the Mirkarimi case and the SOTF appointments are striking: Unsupportable and false accusations were simply tossed out by Mayor Lee against Mirkarimi as they were by Supervisor Wiener against Wolfe to see if they would “stick.” Then, both the Ethics Commission (in Mirkarimi’s case) and the full Board of Supervisors (in the Bruce Wolfe case) simply made up processes along the way to wrongly remove political opponents.

It’s a sad state of affairs when complaints have to be filed with the FPPC to obtain accurate Form 700 Statements of Economic Activity from SOTF appointees. It’s also sad that another member of the community had to file a complaint against Supervisor Wiener with the State Bar of California for possible violations of ethical codes of conduct required of lawyers. The State bar complaint involves the SOTF’s September 3, 2011 official misconduct finding referred to San Francisco’s Ethics Commission regarding Wiener’s role in the Parkmerced development deal. The complaint asks the State bar to investigate whether Wiener violated Business and Professional Code sections 6128 and 6068 that prohibit all lawyers in California from providing false statements and prohibits all forms of deceit (including selective presentation of incomplete facts).

While many — including Bruce Wolfe — try to do the right thing to protect the rights of citizens to know what our government is up to, there are powerful forces and people such as Wiener for whom truth and transparency appear to be inconvenient, and who may prefer to deny access to either. Now is the time to pay attention, and demand that the Board of Supervisors reappoint. Wolfe to the SOTF immediately so the Sunshine Task Force can resume citizen oversight of City Hall.

Monette-Shaw is an open-government accountability advocate, a patient advocate, and a member of California’s First Amendment Coalition. He received the Society of Professional Journalists–Northern California Chapter’s James Madison Freedom of Information Award in the Advocacy category in March 2012. Feedback: Monette-Shaw

September 2012

 

Ask Supervisor Scott “The Tinkerer” Wiener:

Who Killed Sunshine?

By Patrick Monette-Shaw

Has Supervisor Scott “The Tinkerer” Wiener single-handedly killed open government “Sunshine” in San Francisco, however temporarily? Sunshine has left the City, leaving the Sunshine Task Force in official limbo.

Clearly peeved, Wiener kicked physically disabled member Bruce Wolfe off of the Sunshine Ordinance Task Force on May 22, filling the remaining “member of the public” seats with non-disabled appointees. Wolfe was the only physically handicapped member of the Task Force, which now can’t convene while lacking a physically disabled member.

Sunshine Ordinance Section 67.30(a) has long required that “At all times, the Task Force shall include at least one member who shall be a member of the public who is physically handicapped and who has demonstrated interest in citizen access and participation in local government,” a requirement lawyer Wiener either didn’t know about, or studiously ignored. [Note: “Handicapped” refers to a person having a physical disability.]

What was Vice Chair Wolfe’s “crime” that warranted being removed from the Task Force? Wiener claims Wolfe had “been part of the Task Force when all of these things have happened,” ostensibly including when it found Wiener guilty of official misconduct on September 27, 2011.

Wolfe may have earned Wiener’s enmity a second time a month later on October 24, 2011, when Wolfe publicly opposed Wiener’s Prop. E and Prop. F November 2011 ballot measures during the West of Twin Peaks Central Council endorsement session. Wiener left that meeting in speechless shock after retired Judge Quentin Kopp questioned Wiener about why we even need an Ethics Commission.

Removing Wolfe smacks of political payback. Wiener presented no specific charges against Wolfe, just that Wolfe had “been around.” Wiener was referring to things he classified as “bad,” but were clearly within the Task Force’s legitimate purview.

Wiener went so far as to state conclusively during the May 22, 2012 Board of Supervisors meeting broadcast on cable (SFGOV TV) that the Sunshine Ordinance Task Force had engaged in official misconduct. He didn’t qualify his accusation with “allegedly,” or “potentially,” or “perhaps” had engaged in misconduct.

Wiener went further May 22, claiming not only that the Task Force had engaged in official misconduct, but also that “the current Sunshine Ordinance Task Force … frankly, has undermined both the Ordinance and transparency in government … in several ways.”

To support this claim, Wiener lied at least four times. One tiny problem: None of what Wiener claimed had happened; none of it was true.

What had been the Task Force’s crime? As the first of his lies, Wiener whined “This Task Force purported to exempt itself from the San Francisco Charter.”

The Task Force did not exempt itself from the City Charter. Instead, the Task Force had amended its bylaws in April 2011, a lawful act. Because of ambiguities in Charter Section 4.104 — a section not clear that it even applies to the Task Force — the Task Force disagreed with an opinion from City Attorney Dennis Herrera regarding how many members need to be present during meetings to pass motions.

Indeed, before voting to change its bylaws, the Task Force recognized that the types of entities listed in Charter Section 4.104 excluded task forces; referred only to entities of the Executive Branch, since the Sunshine Task Force is an entity of the Legislative Branch; and that this section of the Charter specifies only entities created by Legislative acts, not to entities created by the electorate (i.e., members of the public otherwise known as “voters”).

When the Task Force adopted its rule, changing to a majority of members present rather than a majority of all members, those who voted for the bylaw change did so believing that they were not flouting the Charter or any other law, they just didn’t agree with Herrera’s interpretation, since City Attorney “interpretations” and “opinions” don’t carry force of law.

Wiener Slanders the Task Force

Wiener stated, as if he were both the judge and jury, “And frankly, that was official misconduct, in my personal view.”

He didn’t afford the Task Force an opportunity to respond or defend itself; he just falsely accused the Task Force and concluded with no debate or evidence, and without a hearing presenting any charges, slandering the Task Force in the process. After the Task Force lawfully amended its bylaws, why did Wiener wait for a whole year before making this an issue?

Was it retribution for the Task Force having found Wiener guilty official misconduct six months after it had adopted its bylaws change?

Perhaps Wiener is taking cues for slander from Mayor Ed Lee, who appears to have slandered Sheriff Ross Mirkarimi by claiming, as the mayor did on June 20, that Mirkarimi had “engaged in beating his wife,” appalling many observers by not qualifying it with “allegedly.” Lee reached this conclusion before the Ethics Commission or the Board of Supervisors completed their investigations of the wildly inflated charges against the Sheriff. Both Lee and Wiener are throwing false accusations against the wall, hoping to see which libelous accusations may stick.

Ironically, although Wiener stated on May 22 that “The Sunshine Ordinance, and transparency in government in general, is incredibly important,” he’s sponsored measures to lessen campaign finance disclosure transparency, and the Task Force found that Wiener violated the Sunshine Ordinance himself, as this article explores.

Second, Wiener lied claiming that he had asked the Board’s Budget and Legislative Analyst, Harvey Rose, for an “audit,” inferring an audit of the Task Force. In truth, Wiener had requested a survey of each City department’s costs to comply with the Sunshine Ordinance, not an “audit” of the Sunshine Task Force’s revenue and expenses.

Third, Wiener claimed on SFGOV TV that the Task Force had responded by saying, “How dare you! How dare you shine sunlight on us?” No Task Force member had ever said any such thing, even remotely; Wiener clearly lied on broadcast TV during a Board hearing.

In truth, the Task Force’s only response was a March 22, 2012 letter to Wiener, respectfully noting he had not extended the courtesy of informing the Task Force of his intent to conduct such a survey, and asking for clarification about his motivation for requesting the survey. The Task Force asked what benefit Wiener expected the public to receive from such a survey, since he had not asked Rose to estimate or quantify the benefits of Sunshine, just expenses. Wiener failed to ask that costs of compliance with the California Public Records Act be reported separately, which turns out to be the major “driver” in costs of compliance with local and state open government laws.

The Task Force was within its rights when it appropriately requested an explanation from Wiener, and it extended an open invitation to him to discuss any issues regarding the Sunshine Ordinance and the Task Force’s procedures. It never once said “How dare you!,” as Wiener falsely claimed.

Fourth, Wiener claimed on May 22, “On average, City employees had to spend 1.9 Task Force hearings to get complaints against them adjudicated. … They couldn’t go the first time and get it done,” which Wiener then found to be unacceptable because “It creates enormous inefficiencies.”

Here, Wiener was relying on Rose’s flawed analysis. Rose had included 21 Sunshine complaints filed in 2010 in his estimate of the costs of Sunshine that was to have focused on 2011. As well, Rose had excluded 31 of the 86 Sunshine complaints filed in 2011 — a full 36% — that may either never had a Sunshine hearing (perhaps dismissed or resolved before requiring a hearing) or were not heard until 2012. Of the remaining 55 complaints filed in 2011, six — or 11% — were resolved in just one hearing.

If 31 complaints never received any hearing, the claim of 1.9 average hearings begins to fall apart.

So in potentially 47% of the Sunshine complaints filed in 2011, the Task Force did a commendable job resolving those cases with one hearing per case or less, which Rose clearly overlooked. But Wiener blames the Task Force for multiple hearings, when indeed many of the cases that required multiple hearings were because respondent departments failed to show up at the first hearing — something obviously beyond control of the Sunshine Task Force — which Rose never quantified and which Wiener ignores.

In order to be more efficient, the Task Force changed its procedures, eliminating the requirement that all complaints be heard first by its Complaint Committee, requiring a second hearing only in cases where the Task Force’s jurisdiction was questioned. It’s also unclear whether Rose counted as “multiple hearings” the vast majority of cases where a five-minute agenda item to determine jurisdiction at a full Task Force meeting preceding a second agenda item to hear the particular complaint was double-counted as two “hearings,” when in fact it may have involved a single meeting with a two-part agenda item, perhaps inflating Wiener’s claim that City employees couldn’t just go once to get cases against them heard.

A Harvard Law School graduate, Wiener is known as a hard worker, but he’s not faced much adversity in terms of advancing his political career. Wiener worked five years as an attorney at Heller Ehrman White & McAuliffe, where he focused on financial, accounting-related, and commercial litigation. In 2002, he took a position with the San Francisco City Attorney’s Trial Team representing City departments in civil litigation. In both positions Wiener was thought to have a lily-white reputation.

Perhaps while a Deputy City Attorney, Wiener may have ran across the Sunshine Ordinance as a result of knowledgeable litigants who had used the City’s open government Sunshine law during legal discovery. Then he ran for District 8 Supervisor, and his reputation began getting black marks.

Luckily for San Franciscans, Wiener has faced a number of setbacks to his various schemes tinkering with lessening transparency at City Hall. Here’s the timeline that reduced Wiener to vindictiveness:

Wiener’s Tinkering Timeline

On September 27, 2011 the Sunshine Task Force heard a complaint from Parkmerced resident Pastor Lynn Gavin that Board of Supervisors President David Chiu and the board’s Land Use and Economic Development Committee — composed by Supervisors Eric Mar, Malia Cohen, and Scott Wiener — had violated local and state open-meeting laws by sneaking in 14 pages of amendments to the Parkmerced development deal only minutes before approving it. Pastor Gavin asserted the amendments were so drastic that the Board’s agenda didn’t accurately reflect the real deal under consideration, and that voting to approve it without sufficient time for review by members of the public violated open-meeting laws. The Sunshine Task Force ruled in Gavin’s favor, finding Wiener and the other three supervisors had committed official misconduct, and referred the four Supervisors to the Ethics Commission for enforcement.

On November 8, 2011, San Francisco voters rejected Proposition “E” that Wiener had sponsored. Initially, Wiener had proposed granting the Mayor and Board of Supervisors authority to amend or repeal measures placed on the ballot by the Mayor, four or more Supervisors, or by citizens signature petition initiatives. Facing intense public criticism in the spring of 2011, Wiener toned the measure down and eventually convinced only seven of the Supervisors on July 19 to place a modified version on the ballot, to allow amendments to, or repeal of, measures that only the Board or Mayor had placed on the ballot, but not to citizen measures, or Charter amendments and bond measures. Opposed by the Friends of Ethics — founded by five former Ethics Commission members — Prop. “E” went down to defeat on November 8, handing Wiener a second public embarrassment.

Another Wiener-sponsored ballot measure also went down in flames on November 8, handing him a third embarrassment. Prop “F” would have: Redefined who would be required to register as campaign consultants; raised the threshold of campaign consultant earnings from $1,000 to $5,000; eliminated filing of paper reports, requiring only electronic reports instead; amended the annual fees to no longer depend on the number of clients campaign consultants represent; and would have allowed the City to change campaign consultant ordinance provisions without further voter approval. Voters saw right through this, defeating Prop “F” and slapping Wiener with a third embarrassing defeat.

Humiliated three times in as many months, Wiener next asked Budget and Legislative Analyst Harvey Rose on December 13, 2011 to conduct a one-sided “Survey of Costs of Compliance with the City Sunshine Ordinance.” Wiener told neither his Board colleagues nor members of the Sunshine Task Force that he had placed this furtive request to Rose, as if Wiener had never heard the words “transparency in government” before in his life. Wiener was reportedly concerned about the costs of overtime for City employees to attend Task Force hearings.

Of the 41 City departments that responded to Rose’s “Costs of Sunshine” survey instrument, just three departments — the Ethics Commission, the Planning Department, and Muni — reported overtime costs. City Departments claimed 14,000 hours of effort theoretically complying with Sunshine (over three-quarters of which would have been required by the California Public Records Act anyway), and reported just 77 hours of overtime. The overtime was estimated at just $5,678 out of approximately $2.5 million in salaries and fringe benefit costs. Notably, the Sunshine Task Force’s two paid employees — its then-administrator Chris Rustom, and Deputy City Attorney Jerry Threet — earned no overtime in 2011 according to the City Controller’s payroll records. Wiener shouldn’t have been in a tizzy over less than $6,000 in overtime.

On April 8, 2012, Harvey Rose released his analysis that Wiener had asked Rose to prepare. However inadvertently, Rose slapped Wiener with a fourth public embarrassment: That fully 77% of the costs identified to comply with open government regulations “would continue to exist under current State law [the California Public Records Act and the Brown Act] even if the City did not have the Sunshine Ordinance.” Rose noted that the net costs attributable solely to the Sunshine Ordinance were just $997,676, representing less than two-hundredths of one percent of the City’s then $6.8 billion annual budget. Wiener could not have been happy learning that the costs to comply with Sunshine is less than a million dollars, costing just $1.24 annually for each of the City’s 805,000 residents.

Rose, however, did not calculate any savings or benefits the Sunshine Ordinance may have brought to taxpayers, including costs avoided involving court cases concerning access to public records. As this reporter has previously noted, $350,000 was restored to the Laguna Honda Hospital patient gift fund as a result of public records requests filed by Drs. Kerr and Rivero, and the City is now pursuing in Superior Court $70 million in Laguna Honda Hospital replacement project “change orders,” which change-order cost overruns were also uncovered through public records Sunshine requests.

Sunshine Blackout

Given these embarrassments, Wiener apparently engineered on May 22 stripping Bruce Wolfe of his seat on the Task Force. Wiener also supported the Rules Committee recommendation to hold up approving four nominations for appointment to the Task Force by demanding that three nominating agencies — the Society of Professional Journalists, the League of Women Voters of San Francisco, and New America Media — submit multiple nominees from each agency, rather than single nominees (as they have since Sunshine became law) be forwarded to the Board of Supervisors Rules Committee for appointment. Those four appointments to the Task Force also remain in limbo.

On June 6, following advice from its advising Deputy City Attorney, the Sunshine Task Force voted to adjourn its regularly scheduled meetings until such time as a physically handicapped member is re-appointed to the Task Force, as the Sunshine Ordinance requires; without a disabled member, Task Force votes on its action items could be legally challenged. Supervisor David Campos noted during the June 6 meeting — speaking as a member of the public, not in his role as a City supervisor — the embarrassment the City will suffer from shutting down its Sunshine oversight body due to failure to comply with disability rights provisions in the Sunshine Ordinance.

A day later, on June 7, Wiener was slapped again, this time by his Board “colleagues” on the Rules Committee. Again carrying water for the Ethics Commission — despite the resounding rejection of Props. “E” and “F” by voters last November — Wiener introduced an Ordinance that would have, among other things, “modified and streamlined reporting requirements for candidates and third parties spending funds in local elections,” and to “eliminate the overall contribution limit on contributions to all candidates on the ballot in a single election.”

Wiener’s proposed ordinance would have, according to some observers, strengthened application of the U.S. Supreme Court case Citizen’s United in San Francisco by undoing contribution caps. After hearing from a number of former Ethics Commissioners who spoke during public comment on June 7, and after hearing Supervisor Campos’ many concerns, the Rules Committee didn’t forward Wiener’s latest ordinance to the full Board of Supervisors for adoption; it sent the legislation back to the Ethics Commission for further work. Poor Wiener just can’t get anything right.

Here it is a month later, and Wiener-“The-Tinkerer” remains unrepentant. He single-handedly shut down Sunshine in San Francisco, and he’s in no hurry to let the Sunshine back in. For all anyone knows, Wiener may be counting on keeping the Sunshine Task Force deadlocked and shut down for as long as possible.

The longer the Sunshine Task Force is in limbo, the more likely it will be for City Hall to engage in backroom deals without sufficient public oversight. Call the Mayor’s Office on Disability at 554-6789 and ask them for its support in getting Bruce Wolfe reinstated so the Sunshine Task Force can resume its operations.

Monette-Shaw is an open-government accountability advocate, a patient advocate, and a member of California’s First Amendment Coalition. He received the Society of Professional Journalists–Northern California Chapter’s James Madison Freedom of Information Award in the Advocacy category in March 2012. Feedback: monette-shaw@westsideobserver.

July-Aug 2012

Errors Haunt “God’s Hotel”

by Patrick Monette-Shaw

One wonders whether God’s Hotel — just published by former Laguna Honda Hospital physician Victoria Sweet, MD, PhD — uses LHH as a backdrop to illustrate her career, or to lament the loss of long-term care skilled nursing beds, a necessary component of the “Slow Medicine” she advocates for.

While in many places the book is insightful, to those who worked there and know the hospital’s history intimately, the book’s omissions and factual errors are disturbing.

Glowing reviews of God’s Hotel have appeared in publications ranging from the Wall Street Journal, to the Boston Globe, to the Huffington Post. But those reviewers hadn’t witnessed events that transpired at Laguna Honda as this reporter has for 13 years, and aren’t aware of key errors in, and omissions from, God’s Hotel.

Aware since May 2010 Sweet’s book was in development, during an invitation-only April 28, 2012 book launch party this reporter was startled when Dr. Sweet indicated — literally while passing — “Patrick, I hope you won’t be too disappointed by what I left out,” (or words to that effect).

I wondered: Why had Sweet anticipated disappointment?

The book is an amalgam — part memoir, part a story involving Sweet’s journey acquiring a PhD in the history of medicine, and part an extended Op-Ed arguing for a return to “slow medicine” — set against a backdrop of a very selective history of nearly two decades of patients and staff at Laguna Honda as it was transformed from a “medical model of care” for poor, safety-net patients to a “social rehabilitation model of care” for San Francisco’s homeless.

A central character in God’s Hotel — a title taken from the French “Hôtel-Dieu,” a Middle Ages “almshouse” taking care of the chronically disabled — is twelfth-century mystic, nun, and medical practitioner Hildegard von Bingen, whose idea was that human bodies are more like a plant to be carefully gardened, rather than a machine of broken parts. Sweet’s premise is that doctors should be more like gardeners than mechanics, and that many non-desperate illnesses might be better treated by Slow Medicine, by nurturing viriditas, the natural greening power of healing.

Throughout the book, Sweet offers many insights that take your breath away. In one patient vignette about having an accurate diagnosis, Sweet notes she saved the healthcare system approximately $400,000 by making the correct diagnosis that an artificial hip had been dislocated from its socket, detected by a relatively inexpensive X-ray. “If doctors were going to held accountable for [healthcare] costs,” Sweet writes, “why shouldn’t we get some kind of credit for savings?”

In another vignette, Sweet acknowledges that “almost every patient I admitted had incorrect or outmoded diagnoses,” often taking medications for diagnoses they didn’t have and placing patients at risk for adverse outcomes. Many of the misdiagnoses Sweet attributes to over-zealous medical student interns at San Francisco General Hospital, who are apparently never held accountable for misdiagnoses that drive up healthcare costs and endanger patient outcomes.

She wonders how outcomes might be improved with correct diagnoses, instead of incorrect ones, and visits to emergency rooms avoided if doctors are provided sufficient time to spend with patients. These insights — and others — make God’s Hotel an important read.

But maddeningly, although Sweet acknowledges Hildegard “took care to mention dates in her writing … to preserve her work for the future,” Sweet avoided including any dates throughout God’s Hotel’s 348 pages (although a few dates do appear in the end notes at the end of the book), making it all but impossible for readers to place events at LHH and during her PhD studies into perspective. How could any historian with a doctorate in medical history write a book with no dates documenting a hospital’s history?

From the vignettes, Sweet concludes LHH’s three principles are “hospitality,” “community,” and “charity.” She relates these principles by examining the etymology of many Latin words, including curare, splitting cure (doctors) and care (nurses), that has long fueled a battle for command and control of hospitals. Which model — care (nurses) or cure (doctors) — would triumph at Laguna Honda?

Sweet notes that during the French Revolution, medicine began to change; doctors wanted control of the Hôtel-Dieu in Paris to correlate medical treatments with patient outcomes. The nuns, of course, objected on moral grounds that using patients as experimental things was a bad idea; they protested, refusing to serve under the doctors and refusing to leave. Eventually, administration rescinded its order giving doctors control, returning control of the Hôtel-Dieu to the nuns providing nursing, until they left after it was secularized in the 1900’s.

Much of Laguna Honda’s history during the past 20 years parallels the same battle for control, a feud between doctors, nurses, and administration played out in most hospitals to this day. For her part, Sweet acknowledges the dynamic between the Nursing, Hospital Administration, and Medicine departments needs to be kept in close check to advance optimal patient outcomes.

In a long vignette about a patient with transverse myelitis, an inflammation of the spinal cord, Sweet’s point of view changed from focusing on her patients “vaguely surrounded by his environment.” Instead, she stepped back and learned to focus on the environment surrounding her patients, asking herself when anything interfered with her patient’s natural healing powers and their environments, what she could do to remove it.

Throughout the book, it becomes clear that Sweet didn’t venture into the political environment at Laguna Honda, and didn’t become involved in efforts to stop the transformation of its medical model of care, or efforts to permanently alter LHH’s environment.

Sweet acknowledges that the same disability rights activist lawyers who disastrously shut down state mental hospitals around the country are now the same people hell bent on shutting down skilled nursing facilities caring for the frail elderly. Their test case was shutting down Laguna Honda Hospital.

Sweet erroneously reports that just after John Kanaley was appointed as Laguna Honda’s Executive Administrator in 2004, Sister Miriam Walsh requested a meeting with him. In fact, within the first month of his tenure, Kanaley summoned three vocal LHH staff members to his office in a bald attempt to exert his authority. None of the three had requested meeting with him.

First, he summoned Sister Miriam Walsh to his office for a discussion about her advocacy against the “flow project” involving the transfer of psycho-social patients from San Francisco General Hospital to LHH. When asked what Kanaley wanted, Sister Miriam reported “He wanted me to agree to a deal to keep Laguna Honda’s name out of the media and asked me to pipe down. I told him, ‘No deal,’ and that was the end of the meeting.”

In short order, Kanaley summoned Dr. Maria Rivero and this reporter, separately, to his office for the same talk, and we both essentially told him the same thing: “No deal.” Kanaley’s attempt to bully vocal staffers by intimidation set the tone for the duration of his bull-in-a-China-shop administration.

In another act of bullying, in June 2008 — following Sister Miriam’s May 2008 Westside Observer article “Farewell to Laguna Honda’s Clarendon Hall” — Kanaley wrongly accused this author of abusing Sister Miriam as a frail, elderly woman to advance my political and personal “gain,” because he falsely assumed I had written her article, which was a complete lie.

Many Minor Errors …

• In In the chapter “Wedding at Cana,” Sweet describes the wedding of two patients — the “Teal’s” — in LHH’s chapel, comparing it to Jesus’ first miracle, the transformation of water into wine at a wedding in Cana. From this, Sweet concludes — quite ironically — that Laguna Honda’s second principle is “community.”

Sweet asserts “almost all of Laguna Honda” poured into LHH’s Chapel for the Teal’s wedding, but observers report that attendance was actually quite low. Some observers wonder whether the stretched attendance was carried over into other areas of God’s Hotel for literary effect. The exaggeration, in itself, wasn’t terrible, but why do it, they wonder?

But the irony is that the low turnout may have been because most staff at LHH were painfully aware that Bride Teal was, in fact, already married to another man; many staff may have stayed away from the wedding, not wanting to witness polygamy being blessed. Why a minister was brought in — ostensibly with LHH administration’s approval — to conduct marriage vows for a woman already married amounted to sanctioning polygamy. Bride Teal didn’t want her family to know about her latest wedding. Rather than providing her with a reality check that she could have a party with her new love, but couldn’t throw a full-fledged wedding because she was already married to someone else, a handful of staff chose to “enable” Bride Teal, fueling her fantasies. Could Sweet’s new definition of “community” involve polygamy? Why did Sweet choose this story to illustrate “community,” when there were so many other examples of real community at LHH that she could have drawn from?

• Sweet reports that voters passed Prop. “A” in 1999 to rebuild LHH for $500 million, and that half would come from a general obligation bond and half from the tobacco settlement revenue account. This is untrue: First, voters were told the hospital’s replacement budget was $401 million, not $500 million (although the cost overruns 12 years later pushed the cost to well over $593 million). Second, the bond was for $299 million, and just $100 million was to come from the TSR account, not half and half.

• Sweet accurately reports there were two committees involved in the 2006 Prop. “D” ballot measure: “San Franciscans for Laguna Honda,” and the “Committee to Save Laguna Honda.” But she misreports that doctors Kerr and Rivero were members of both committees. This is patently untrue. The latter committee was formed by this author, Sister Miriam, Virginia Leishman, LHH resident Robert Neil who was then president of the Resident’s Council, and family members of the Traumatic Brain Injury Support Group. At the time, Kerr and Rivero made the correct ethical decision that they could not violate their doctor-patient relationships by joining an advocacy group that included patients of the facility.

• Sweet asserts the hospital’s 1,200-bed replacement plans had included three identical six-story buildings. In fact, the third residential tower eventually eliminated was a 420-bed, seven-story building containing crucial infrastructure elements like the data center that then had to be shoehorned into one of the two remaining 320-bed six-story buildings.

• Sweet reports that following a meeting between Sister Miriam and Mayor Gavin Newsom, Newsom ordered then Director of Public Health Mitch Katz to halt the many incarnations of the so-called “Flow Project” shuttling SFGH patients to LHH. Since this reporter attended that meeting, I can vouch that meeting wasn’t with the Mayor, it was with his Chief of Staff Steve Kawa, who has long been considered San Francisco’s real mayor ever since Willie Brown’s tenure. Earlier, this reporter had also attended a meeting between Sister Miriam and Mayor Newsom, which also included former City Attorney Louise Renne — the chairperson of the Laguna Honda Foundation — but Sweet makes no mention anywhere in God’s Hotel about Renne’s meddling in Laguna Honda’s affairs.

There are a host of other minor errors.

… Along With Many Major Errors

• When Sweet turned her attention to the U.S. Department of Justice’s first letter to then mayor Willie Brown in May 1998, she speculates the DOJ had been “tipped off” to investigate LHH. Sweet dissembles, first speculating it may have been doctors Kerr or Rivero who contacted the DOJ, before Sweet then speculates it may have been LHH’s forty-four-year Director of Nursing Virginia Leishman who provided the DOJ a tip, an allegation Leishman adamantly denies. (Leishman has, reportedly, received numerous calls since God’s Hotel was published, some encouraging her to consider slander.)

Observers at the time note that it may have been a former LHH Executive Administrator who may have “tipped off” the DOJ if anyone had, since he may have been miffed when plans to hand him a job converting the Department of Public Health into an “enterprise” department that would receive no City General Fund support fizzled, along with his promised job. Regardless, there is no proof that the DOJ had received any tips, and may have launched its investigation simply by reviewing sentinel event, or annual inspection, reports.

• Referring to the same first letter from the DOJ, Sweet asserts the DOJ was initially concerned only about LHH’s Nursing department, saying the DOJ blamed Nursing for almost everything, except LHH’s old-fashioned wards and aging infrastructure. This is also patently untrue. The DOJ, in effect, also blamed the Department of Medicine — which had then rightfully contained the sub-specialty of physical medical rehabilitation, including speech therapy, occupational therapy, and physical therapy, all components of physical medicine — for failing to provide specialized rehabilitation therapy. The DOJ asserted in 1998 that only 50 residents were receiving physical, occupational, or speech therapy — which services require referrals from physicians — to prevent functional decline, failing health, and premature death.

Speech Therapy, the DOJ claimed, had only assessed one-third of residents at LHH who were at risk for aspiration, and had assessed only 70 of 700 residents requiring eating assistance.

As a result of the DOJ’s claim in 1998, Laguna Honda hired within a year a new senior physical therapist, an occupational therapist, and a speech pathologist charged with developing a functional maintenance and restorative care program that subsequently hired four therapy aides to implement the program, which initially proved to be a success. (Unfortunately, that program has fallen into disrepair, given intermittent curtailment of restorative care services on long-term care units.) Before each return DOJ visit across the next decade, LHH physicians increased their rehabilitation physician orders to avoid further DOJ wrath. That meant doctors were finally paying attention to writing rehab referrals.

The DOJ was also critical in 1998 of LHH’s Activity Therapy Department for not providing meaningful activity needs of LHH residents. The DOJ’s concerns weren’t attributable solely to Nursing.

• Sweet reduces to a single page the 2006 Proposition “D” ballot measure to protect Laguna Honda for the frail elderly with skilled nursing needs, as voters were promised by Prop. “A” in 1999. Sweet wrongly regurgitates — with no critical analysis — the lies Prop. “D” opponents used to defeat the measure: That the proposition would permit the Residential Builders Association to build for-profit residential care facilities on city land, would put a zoning administrator in charge of making hospital admission decisions, and would require LHH to discharge 300 Alzheimer’s and AIDS patients, all of which were lies.

The RBA had no interest in building residential care facilities. The land use attorney who crafted the language for Prop. “D” — being an associate of former City Attorney Louise Renne who now operates the Laguna Honda Foundation — slipped in arcane language thought required for Planning laws, but was actually twisted into possibly allowing for for-profit private development. Nothing in Prop. “D” allowed for-private development, but once City Attorney Dennis Herrera wrote that Prop. “D” would provide a “land grab” by private interests, the lie stuck, despite being a canard uncovered by a respected journalist who looked into the issue and exposed it to be false.

Worse, lacking further critical analysis, Sweet omitted that LHH’s then Rehabilitation Coordinator was the only LHH staff member not affiliated with Prop. “D” who had correctly noted in 2006 that Prop. “D” used the exact same language that was contained in Title 22 and LHH’s own admission policies; he had read Title 22. The dullards running the anti-Prop. “D” campaign — including the Director of Public Health Mitch Katz, Mr. Kanaley, Mivic Hirose, and many MD’s on LHH’s staff — all appeared to have turned a blind eye to Title 22, as if they’d never read it.

• Sweet doesn’t report that in March 2006 — despite a prohibition in San Francisco’s Administrative Code Section 12G against using city funds to attempt influencing political activity, including ballot measures — then City Controller Ed Harrington, City Services Auditor Leticia Miranda in the Controller’s Office, and Health Management Associates employee Nicola Moulton exchanged a series of e-mails outlining the Prop. “D” ballot initiative and “themes” that might be used to defeat the measure, including whether 300 Alzheimer’s and Parkinson’s patients were part of those who would face discharge if Prop. “D” passed. Harrington and Miranda had to have known — if Sweet didn’t — that Health Management Associates was a contractor receiving city funds who had made recommendations in 2005 to alter Laguna Honda’s service mix. They also had to have known that using a city contractor to help develop arguments to defeat a ballot measure clearly violated Section 12G. Sweet mentions nothing of this.

Nor does Sweet mention that prior to publication of God’s Hotel, she had to have heard news that San Francisco’s Director of Public Health Mitch Katz had been paid $30,000 over a three-year period by Health Management Associates, the same firm he had steered a contract to.

• Sweet reports that Dr. Katz had given Mr. Kanaley an additional $10 million for more “administrative staff,” but she neglected to mention the $10 million was for transition planning to the new facility, including a host of duplicative doctors and nurses — not administrators — to ensure regulatory compliance. And Sweet omits that much of the $10 million wasn’t encumbered until after the move into the new facility had been completed; was possibly not used as intended by the initial earmark; that as of May 2012, only 74% of the $10 million had been spent; and that the remaining 26% ($2.6 million), had been cost-shifted to funding “facility maintenance contracts,” instead

There are other major errors too long for this review.

Glaring Omissions

• Sweet mentions nothing about the closure of LHH’s adult day health care program, nor does she discuss the loss of 200 to 300 assisted living facility beds planned for the facility. Nor does she discuss the impact of the loss of LHH’s 420 skilled nursing beds on the rest of the city, and its effect on discharge locations, either. None of this is discussed in relation to “slow medicine.”

• There is no mention of the $190 million in cost overruns of the replacement facility, nor the shoddy workmanship in the new buildings (mold in the new kitchen is but just one problem) that will cost additional millions to repair.

• While Sweet acknowledges LHH’s current medical director relocated her offices to the front of the building to signal that the Medical Staff was falling into alignment with the Hospital’s Administration to transform LHH, Sweet fails to note that this medical director also jettisoned the medical staff’s autonomy when she permitted Rehabilitation Services — whether or not with concurrence by LHH’s Chief of Rehabilitation Services Lisa Pascual, MD, and LHH’s then Rehabilitation Coordinator, Paul Carlisle — to be placed under the auspices of the hospital’s Facility Operations Department. As far as is known, no other physical medicine rehabilitation department or their parent medical services department in Bay Area hospitals have permitted being placed under the control of facilities operations staff.

• While Sweet reports doctors Rivero and Kerr had filed a whistleblower complaint about abuse of LHH’s patient gift fund, Sweet never mentions that following a long-delayed City Controller’s audit of the gift fund the hospital was eventually ordered to restore over $350,000 misappropriated from patient benefit.

• Similarly, while Sweet notes that doctors Kerr and Rivero had authored a “brilliant” rebuttal to the Davis Ja report that recommended “higher-salaried physicians be replaced by registered nursing staff, social workers, and psychologists,” Sweet excluded reporting that over 20 physicians at LHH had signed a letter of support, finding that the Ja report had been illegal, unethical, and harmful to patients, since Ja lacked professional qualifications to assess physician services.

Although Sweet rightfully lambasts in God’s Hotel the “social rehabilitation” grant LHH’s Executive Administrator Mivic Hirose secured that became the focus of a heated, politically charged Board of Supervisors hearing in 2005, Sweet failed to note that during the final PowerPoint presentation at the end of the grant, the Nursing Team involved admitted it had not actually implemented any Nursing “intervention” portion of the grant designed to prove to the funding source the efficacy of social rehab interventions, a glaring admission of failure.

Nowhere does Sweet delve into the LHH public relations director’s spin control “deconstruction”; he’s the guy who claimed “LHH’s patient gift fund isn’t for patients.” Marc Slavin was hired in 2007 to squelch “negative publicity about LHH” to help out his benefactress, former City Attorney Louise Renee, now head of the Laguna Honda Foundation non-profit that refuses to release any details of its income and expenses, a fact Sweet must have know about for years, but doesn’t address.

To her credit, Sweet does acknowledge that San Francisco mounted no legal defense against either the Davis lawsuit or the Chambers settlement agreement; the City, with Slavin’s help, simply capitulated to the disability rights activists intent on shutting down Laguna Honda Hospital, contributing to the abuse of this civic institution.

Slavin is reportedly pursuing a PhD degree. While Sweet rightfully wonders about efforts to re-brand a public hospital with a new name that Slavin had proposed eliminating “hospital” from, she doesn’t wade in to whether Slavin’s marketing efforts over the years are designed to re-frame, for advertising purposes, that LHH can be used for just about anything, perhaps part of his pursuit of a PhD. He and Renne are at it again, now trying to “re-brand” LHH’s patient auditorium into a revenue-generating community theater to support Renne’s non-profit Laguna Honda Foundation.

Sweet never addresses LHH Administration’s ascendancy under Slavin, and the negative impact Administration has had on patient outcomes, while casting Nursing and Medicine asunder.

God’s Hotel is certainly no match against Slavin’s considerable skills in on-going deconstruction, and may be too little, too late to stop the transformation in how we provide “slow medicine” to care for the sick poor.

Despite errors haunting God’s Hotel, it may still be worth a read.

Monette-Shaw is an open-government accountability advocate, a patient advocate, and a member of California’s First Amendment Coalition. He received the Society of Professional Journalists–Northern California Chapter’s James Madison Freedom of Information Award in the Advocacy category in March 2012. Feedback: mailto:monette-shaw@westsideobserver.

June 2012

 

Open Government

Budget Analyst Short Circuits Supervisor Wiener

By Patrick Monette-Shaw

Supervisor Scott “The Tinkerer” Wiener is at it again, tinkering with San Francisco’s Sunshine Ordinance, our local open government law that San Francisco voters adopted in November 1999 to supplement the California Public Records Act (CPRA) and the Brown Act covering open meetings. Westside Observer readers may wish to see part one of this story last month.

Of the 41 City Departments that responded to the Board of Supervisors’ Budget and Legislative Analyst Survey of Costs of Compliance With the Sunshine Ordinance, a preliminary analysis conducted by this author reveals that City Departments first claimed expenses of approximately $8.2 million. A follow-up records request resulted in the Department of Elections revising its initial submission on March 3, adjusting its initially claimed 28,013 hours down to just 3,886 hours, and removing un-recouped photocopying expenses — eliminating between the two areas $2 million in costs wrongly first asserted.

Of the remaining $6.16 million claimed across City departments, another $2.24 million to $3.36 million in costs were dubiously reported and were perhaps not justified, potentially reducing total costs to approximately just $2.8 million.

Luckily, the Budget Analyst released his analysis, which became publicly available on April 25, in which he concluded that the costs of compliance with Sunshine directly attributed as unique to the Sunshine Ordinance is less than a million dollars (of a $7 billion City budget), and just $4.2 million between complying with local and state open records laws. Rose has short circuited Tinkerbelle Wiener’s attack on Sunshine, if only temporarily.

Clearly the $8.2 million in piled-on costs were the result of City departments wildly over-estimating their costs. Rather than the more probable $2.8 million in costs — not all of which would have been unique to our local laws — Budget Analyst Harvey Rose let it stand at $4.2 million.

Sunshine Ordinance Task Force member Richard Knee, a freelance journalist in San Francisco and a noted Sunshine activist, is deeply concerned about the Board of Supervisors’ Budget and Legislative Analyst survey of the costs of sunshine law compliance being conducted at Wiener’s surreptitious request.

Knee said, “There is a good deal of concern among Sunshine advocates that Wiener and/or at least one of his fellow supervisors might be planning a ballot measure that would abolish the Task Force and/or weaken the Sunshine ordinance in some other way.”

Knee was appointed directly to Sunshine Task Force Seat #3 by the Board of Supervisors in 2002, and has served admirably on the Task Force for a decade. He was nominated by the Society of Professional Journalists–Northern California Chapter to succeed San Francisco Bay Guardian editor/publisher Bruce Brugmann in Seat #2 in 2004, 2006, 2008 and 2010; in all cases, Knee’s nomination was confirmed by the Board of Supervisors, and he served as Task Force Chair in 2009–10 and 2010–11.

What gives rise to the sunshine advocates’ worry is that Rose’s survey instrument was deeply flawed. “The survey makes no attempt to discover how much our local Sunshine ordinance has saved the City by exposing or preventing backroom deals, and furthermore, it’s difficult if not impossible to measure how much the Task Force has saved the City in legal expenses by eliminating the need to take Sunshine-related complaints to court,” said Knee.

He’s not alone. Ethics professional Allen Grossman notes, “Much of the data being fed to Harvey Rose in the Legislative Analyst’s office was based on differing assumptions made by City departments and the lack of critical eyes when pulling their data together. They mixed apples and oranges, along with pears and bananas,” Grossman notes.

As www.CitiReport.com publisher Larry Bush reported in March 2011, Grossman is a retired attorney noted for forcing the Ethics Commission to divulge its records of complaints referred for enforcement by the Sunshine Ordinance Task Force, which receives complaints when City agencies don’t follow public records disclosure and open meeting laws. Grossman — recognized as highly knowledgeable on government transparency and open access laws, and a volunteer consultant to the Task Force — ultimately filed suit in Superior Court to force the Ethics Commission to comply with the California Public Records Act; Ethics eventually settled the case, provided the documents, and awarded attorney fees to Grossman, needlessly costing the City over $25,000.

The “Sunshine-Related” Misnomer

Are “public records” the same as “Sunshine-related information”? The answer is partly “Yes,” but mostly “No.”

Rose’s flawed survey instrument started off on the wrong foot. In question 4a, he asked each City department to identify the job classification codes for each employee, and the estimated or actual number of regular and overtime hours, involved in “providing Sunshine Ordinance-related information to the public, separate from responding to formal public information requests,” which Rose claimed was “required” by Sunshine §67.21.

This question provided no guidance to City departments on what “Sunshine-related information” meant, separate from formal Sunshine requests, enabling City departments to simply pile on.

Importantly, Rose failed to remind City departments that §67.21 does not deal with “Sunshine-related information,” it deals with access to public information — defined as the “content of public records” — and provides processes for administrative remedies and appeals when City departments fail to release contents of public records. More importantly, the Sunshine Ordinance indicates that “public information” is “public records defined in the California Public Records Act (CPRA),” but the survey introduced a misnomer confusing public information as somehow distinct from public records.

Rose did not instruct City departments to itemize only public records costs resulting from the Sunshine Ordinance, separate and distinct from public records required for disclosure under CPRA. Rose simply called it “Sunshine-related information.” So while public records must be disclosed (the “Yes” part of whether the two categories are the same), that does not mean “Sunshine-related information” is the same thing (the “No” part). With this barn door opened, boy did City Departments wrongly pile on, failing to distinguish between CPRA-required and Sunshine-required public records!

Grossman recommended that Rose start over by going back to each department with a set of standard directions about what was to be included or excluded, how data is to be identified within various categories, and how each dollar amount be supported by an appropriate schedule detailing the individual components that went into each claimed expense.

Of the 47 City departments asked to complete the survey, only 41 did (notably the Board of Supervisors itself did not respond to the survey by the initial February 3 deadline, apparently granted an extension; as this issue goes to press the Board appears to have failed responding to its own Legislative Analyst’s survey). Initially, the 41 City departments asserted approximately $8.2 million in total costs to comply with Sunshine, including first asserting that providing public records information in Question 4a cost $1.687 million, just under the $1.740 million responding to formal, actual Sunshine requests asked in Question 4b.

The worst transgressor was Evan Kirk, a job class 1842 Management Assistant at the Elections Department, who first claimed on February 3 that he assumed “all activities that provide public records (information) are ‘Sunshine-related tasks’.” He claimed Elections had worked 28,013 hours, at a calculated cost of $1.159 million, to provide “Sunshine-related information” in response to Question 4a, and just 2.75 hours responding to formal Sunshine requests in Question 4b. He also initially claimed Elections had spent $1.046 million in un-recouped photocopying expenses.

Kirk coyly included that his first response was due to legal posting requirements, and voter education and outreach. In fact, Kirk lumped together reporting hours for voter “outreach” workers, precinct services employees, voter services employees, poll workers, and publications and warehouse staff to inflate his initial response.

In response to this reporter's question on February 19 for details about the reported 28,013 hours, Kirk submitted a revised response on behalf of the Elections Department on March 3 to the Budget analyst — to his credit and without being asked. His revised submission eliminated $996,223 in claimed expenses (24,127 fewer hours) spent for Question 4a (Sunshine-related information), and also eliminated the $1,048,853 he had first claimed in un-recouped photocopying charges, reducing the total cost of Sunshine compliance by $2.04 million in one fell swoop from $8.2 million to $6.2 million, even before Harvey Rose started asking questions.

Kirk rationalized his changes by indicating the revised submission belatedly recognized that the Elections Department’s major function is to proactively provide public information, which he should have known all along wasn’t a cost of Sunshine, but a cost of his department’s proactive “mission.”

Not so at the Recreation and Parks Department, and at the City Attorney’s Office.

Rec and Park’s Olive Gong — the secretary who unsuccessfully defended her boss, Phil Ginsberg, Recreation and Parks General Manager, in a Sunshine complaint filed by George Wooding eventually referred to the Ethics Commission for official misconduct — tried to muddy the waters, claiming a distinction between “formal” and “informal” records requests.

Gong, like Kirk, isn’t alone. Over at the City Attorney’s Office — which is designated in the Sunshine Ordinance as being the City’s Supervisor of Records — senior Confidential Chief Attorney II Therese Stewart, who earned $214,390 in FY 2010-11, simply lumped together costs for responding to public records (in Question 4a) with the City Attorney’s costs of responding to formal Sunshine requests (in Question 4b). Stewart’s estimate claims 794 hours in City Attorney time, at a cost of $82,786, but doesn’t stratify how much of that time was devoted to simple public record requests vs. formal Sunshine requests. Nor does she stratify how much of these costs are attributable to CPRA, rather than to Sunshine.

But these departments weren’t alone; there were seven City departments who reported either no costs for providing “Sunshine-related information” (a.k.a., “public records”) distinct from formal Sunshine requests, or they may have simply lumped those costs together with costs of responding to formal Sunshine requests, as the City Attorney had done. Rose’s April 12 report analyzing Sunshine costs mentions nothing about this, although Rose did indicate in his report that “caution” should be considered in light of flawed reporting.

Rose threw out costs that smelled of double-reporting, particularly double-reporting potentially by the City Attorney.

Rose Selectively Corrects Flaws in the Glass

Rose concluded a total of $4.27 million is attributable to complying with local and state open records legislation. Of that $4.27 million, he claims $3.13 million is attributable to City department Sunshine costs reported from their five-page surveys. He then concluded just $997,676 of the costs were attributable “uniquely” to the Sunshine Ordinance and the balance would have been required under CPRA, even if San Francisco did not have its own local Sunshine Ordinance.

In effect, Rose acknowledges that 76.7% of open records costs for San Franciscans to know what their government is doing on their behalf is attributable to the State’s CPRA laws, and just 23.3% are attributable to our local Sunshine Ordinance. But even those cost allocations may be wildly mis-estimated by Rose’s staff.

First, Rose acknowledges in footnote number 2 that he “assumes” 10% of public records requests and 20% of “other costs” were unique to the Sunshine Ordinance. His assumptions are not provable.

His analysis acknowledges that the Sunshine Ordinance includes just a handful for expanded access requirements not provided by CPRA, including draft documents and draft memos; litigation records; certain personnel information; certain law enforcement information; contracts, bids, proposals and other communications from those seeking City contracts; and budgets and other financial information. But Rose provides no analysis about how many of the purported 5,833 formal Sunshine requests had actually requested information provided by the expanded categories covered under our local requirements not required by CPRA, nor did Rose analyze whether the 99 official Sunshine complaints filed with the Sunshine Task Force had focused on records unique to our local open records expanded categories. Without such an analysis, Rose’s guesswork that 10% of costs should be attributable solely to the Sunshine Ordinance is, well, just guesswork, when not another faulty assumption.

Second, while Rose acknowledges, “it is likely that without the Sunshine Task Force, some portion of complaints would be directed to other public bodies, such as the [Superior] courts, which would in turn incur costs,” he failed to estimate what increased City legal costs might look like. Rose is using code words to obfuscate that without the Sunshine Task Force, the City would likely face significantly higher costs from lawsuits against the City, which potential costs he made no effort to quantify or include.

As the Westside Observer reported last month, Wiener didn’t ask for — nor did Rose bother to consider and include — any benefits (as in a cost-benefit analysis) of either CPRA or our local Sunshine Ordinance, including the “benefit” of restoration of $350,000 in misappropriated funds to Laguna Honda Hospital’s patient gift fund (which would not have happened were it not the result of records requests having been placed by Drs. Kerr and Rivero), nor the benefit of the City pursuing Superior Court recovery of $70 million in “change orders” related to the $183,000 million cost overrun to rebuild Laguna Honda Hospital, which change orders were also uncovered via the “benefit” of public records requests.

Rose did toss out over $3 million in unsupported costs, including a $640,102 “typo” wrongly reported by the Children and Families Commission (which was actually zero dollars) since it did not submit a revised survey, $1.2 million the City Attorney wrongly claimed, and $812,692 Muni (MTA) tried to tack on, among other City department’s over-reporting.

To his credit, Rose indicates his office reviewed costs submitted on the initial 5-page forms, and “returned them to departments for clarification” when the reported amounts didn’t seem reasonable or were well above or below costs submitted by other Departments.

The Mayor and His Misguided Managers

Some City departments noted in personal communications that they had contacted the Mayor’s Office regarding responses to the survey instrument. Elsewhere, there is news the Mayor’s Office was involved placing follow-up calls to City departments about their survey responses. Many City managers labor under the misbelief that the Sunshine Ordinance is far broader than CPRA requirements, which isn’t true. These managers assume that when records requests are placed that invoke neither the Sunshine Ordinance nor CPRA, that the records sought are magically and automatically assumed to be Sunshine requests, when more often than not, they aren’t and may be CPRA requests.

They labor under this misconception from City Attorney Dennis Herrera’s so-called “Good Government Guide,” which mistakenly fails to instruct City managers and all City employees that in 76.7% of records requests, they must still comply with CPRA, even while they attempt to obstruct Sunshine requests.

Sunshine Trumps Secrecy

Where would we be without an administrative appeal route? The Sunshine Ordinance is a non-judicial enforcement mechanism to comply with open government requirements. If Supervisor Wiener attempts to weaken or eliminate it, City officials will still be required to comply with the Brown Act and California’s Public Records Act. In addition Section (b)(1) of Article 1 of California’s constitution stipulates that “people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”

By tinkering with, or eliminating the Sunshine Ordinance, Wiener would deprive complainants alleging public records and public meeting violations of any administrative remedy other than Superior Court lawsuits. The Ordinance is the only available administrative forum San Franciscans have to resolve public access disputes and to deter City bureaucrats from obstructing public access. The only comparable alternative offered by CPRA and the Sunshine Ordinance is filing lawsuits in Superior Court, which few citizens have access to, or can afford.

Grossman may be right: We may be being fed fruit salad — apples and oranges, pears and bananas — in a bald attempt by Wiener, emboldened by Harvey Rose, to obfuscate the true costs and benefits of our local Sunshine laws. The price we pay for transparent government may include the price of eternal vigilance over Supervisor Scott “Tinkerbelle” Wiener, to short circuit whatever motives he may be up to.

Monette-Shaw is an open-government accountability advocate, a patient advocate, and a member of California’s First Amendment Coalition. He received the Society of Professional Journalists–Northern California Chapter’s James Madison Freedom of Information Award in the Advocacy category in March 2012. Feedback: mailto:monette-shaw@westsideobserver.

May 2012

 

City Hall Watch

Supervisors Tinker With Open Government

By Patrick Monette-Shaw

Since taking office to represent District 8 on the Board of Supervisors in November 2010, Supervisor Scott Wiener has distinguished himself by repeatedly tinkering with various San Francisco’s open government laws; in some quarters he’s referred to as Scott “The Tinkerer” Wiener. Others refer to him as “Tinkerbelle.”

He’s at it again, tinkering with San Francisco’s Sunshine Ordinance, our local open government law adopted to supplement the California Public Records Act (CPRA), and the Brown Act covering open meetings.

Surprisingly, Supervisor Jane Kim, also elected in 2010 to represent District 6, may also be tinkering with the City’s boards, commissions, and advisory bodies mandated to provide public oversight.

The Sunshine Task Force meets the last Tuesday of the month in room 406

On November 1, 2011 the Sunshine Task Force issued an Order of Determination, finding that Supervisor Eric Mar, Chair of the Land Use Committee, Board president David Chiu, and Land Use Committee members Supervisor Scott Wiener and Supervisor Malia Cohen had collectively violated several sections of the Sunshine Ordinance by failing to provide the public with copies of 14 pages of amendments to the Park Merced Development Agreement.

The amendments had been provided to the Board of Supervisors in connection with an agenda item by Chiu, who had allowed the introduction of last-minute, substantive changes to the agenda without adequate public notice. The four Supervisors were also cited for failing to publish a meaningful agenda indicating the substance of the item involving the 14 pages of Park Merced amendments, in order to adequately inform the public about the nature of the proposed development deal’s amendments.

The Sunshine Task Force referred all four Supervisors to the Ethics Commission and District Attorney, citing willful failure (to comply with the Sunshine Ordinance) and official misconduct.

As an aside, although Mayor Ed Lee referred official misconduct charges against Sheriff Ross Mirkarimi to the Ethics Commission, it has taken no action on the official misconduct charges against the four supervisors who sought to withhold the 14-page amendments of the Park Merced deal. Similarly, after the Sunshine Task Force referred official misconduct charges against Library Commission president Jewelle Gomez to the Ethics Commission on July 11 for on-duty misconduct, the Ethics Commission concurred Gomez had erred and forwarded its first-ever official misconduct charges to Mayor Lee. Eight months later, Lee has taken no action against Gomez.

In 1980 a state appellate court ruled in then-Airport Commissioner Joseph Mazolla’s appeal that levying official misconduct charges requires a direct relationship of alleged wrongdoing to an office held. As deplorable as Mirkarimi’s off-duty behavior may have been, it had nothing to do with his duties as Sheriff, and occurred before he was officially sworn in.

In stark contrast, Lee hasn’t acted regarding the on-duty official misconduct charges against Gomez, or against the on-duty misconduct of the four supervisors in the Park Merced matter.

For her part, Supervisor Kim was found by the Sunshine Task Force on June 7, 2011 to have violated the Sunshine Ordinance by not responding to a request for records concerning the Shelter Monitoring Committee in a timely manner, for failing to justify withholding of documents, and for failing to keep documents withheld to a minimum. She was ordered to produce the requested records within five days.

Sometime earlier in 2011, Supervisor Kim secretly requested, without public notice or during an open-to-the-public meeting, that the Board of Supervisor’s Budget and Legislative Analyst, the Harvey Rose Consultancy, perform a confidential cost-benefit analysis of the City’s 86 boards, commissions, task forces, and other advisory councils, 34 of which are authorized by the City Charter; the remaining 52 by the City’s Administrative Code. Rose’s May 13, 2011 analysis estimates the annual costs for boards, commissions, etc. totaled $6.495 million, of which $1.2 million — nearly 20 % of all costs attributable to boards and commissions — funds just ten Commission Secretaries serving nine City departments, each of whom have unique job classification codes and who collect median salaries and benefits of $126,880.

Despite having been asked by Kim for a cost-benefit analysis, Rose wasted not one drop of ink in his 39-page analysis of any benefits of boards and commissions.

Nowhere in Rose’s confidential analysis for Supervisor Kim (obtained through a public records request), does he note that the purported — and likely inflated — estimate of $6.495 million to operate the boards and commissions represents just one-tenth of one percent of the City’s $6.834 billion budget (of which total budget Rose must surely be aware), a fractional amount most observers believe to be a small, necessary price to pay for oversight of City government.

In his analysis for Kim, Rose deliberately took a swipe at the Sunshine Task Force by alleging that its Executive Secretary III earned more ($79,524) than the Police Commission’s Executive Secretary I ($65,796). In fact, SOTF’s secretary earned only $75,728, and no overtime, but Rose reported the highest pay step, not that secretary’s actual earnings. And Rose failed to report that minutes of the Police Commission show that its “secretary” during 2011 was then-Lieutenant III Timothy Falvey, who earned $165,112 in 2011, including $16,700 in overtime. (The Police Commission’s new “secretary” in 2012 is a Police Inspector I, John Monroe, who earned $152,228 in 2011, including $22,363 in overtime.)

The $75,278 for SOTF’s secretary pales in comparison to the $165,112 Falvey earned as the Police Commission’s secretary, which Rose failed to note.

If Jane Kim really wants to lower the costs of boards and commissions, she should start by taking sworn officers out of desk jobs and back to actual police work, and use more appropriate civilian clerical employees.

It’s unclear whether Ms. Kim will publicly admit to requesting this confidential analysis, whether she will ever hold a public hearing to release Rose’s analysis, or what her motives are tinkering with board and commission oversight bodies.

As for Tinkerer Wiener’s track record, he has sought to dilute historic preservation at the Planning Commission, and sponsored ballot Proposition F last November to weaken campaign finance disclosure by redefining upwards the threshold of consulting service total fees so fewer consultants would be subject to disclosure. Prop. F would also have allowed the City to change any campaign consultant ordinances without further voter approval.

Wiener also sponsored Proposition E, that would have granted the mayor or Board of Supervisors expanded authority to amend or repeal, not just clean up, ballot measures put before voters by the mayor or members of the Board of Supervisors three years following passage. He had initially introduced Prop. E to permit amending or repealing all ballot measures, including signature initiatives placed on the ballot by citizens, but had to tone down Prop. E following widespread voter outrage.

Luckily, the Friends of Ethics — a committee formed by five former Ethics Commissioners and Larry Bush, proprietor of www.CitiReport.com who just received the Society of Professional Journalists’ James Madison award in the Community Media category — stepped in to stop Wiener’s busybody and nannyish tinkering; their efforts led to the defeat of both E and F.

Facing the twin disgrace of having been referred to the Ethics Commission over Park Merced misconduct on November 1, and slapped at the ballot box by voters on November 8, Wiener went back to his tinkering rabbit hole and on December 13 requested that Rose’s Budget and Legislative Analyst team survey each City department’s costs to comply with San Francisco’s Sunshine Ordinance.

Wiener discarded the niceties of requesting a cost-benefit analysis of complying with Sunshine, asking Rose to provide a one-sided cost analysis, apparently presuming no benefits accrue from the Sunshine Ordinance. Rose dutifully complied, again asking respondents no questions about the benefits side of the equation, just as he did on the Kim flawed survey instrument.

Like Kim before him, Wiener also did not request this analysis during an open-to-the-public meeting, nor did he issue a public notice announcing his request. Indeed, neither the Clerk of the Board nor Sunshine Task Force members were aware until late January that Wiener had placed his request to Rose, and it’s not known whether Wiener even told the other ten Supervisors what he is up to.

Wiener’s request claims to be evaluating the “effectiveness and efficiency” of implementation of the Sunshine Ordinance. His request claims “once we know how much the City spends to comply with the Ordinance, we can work to ensure we are getting the best value for our investment.” In truth, he’s engaging in payback to the Task Force, alleging the Task Force itself is the root problem for being “inefficient.”

The five-page survey Rose’s staff sent to each City department is both highly flawed, and clearly riddled with multiple biases.

First, the survey does not ask departments to quantify how many of their records requests are requested under the Sunshine Ordinance vs. what proportion were requested under the state’s CPRA statute. Obviously, the costs to comply with CPRA should be subtracted from the costs of the Sunshine Ordinance, but that question wasn’t even asked.

Second, the survey contains no data verification procedure to weed out incorrect data entries, in part because the survey provided no guidance to departments on how to complete each question. For instance, the Elections Department initially reported 28,014 hours spent responding to information requests, wrongly including hours for poll worker, precinct level, and other mandated duties. Following a records request I placed, Elections submitted a revised survey to Rose, adjusting the inflated total down to just 4,847 hours.

Similarly, MUNI initially reported 1,877 formal Sunshine requests, but when I placed a request for its records requests log book, the log suddenly showed just 322 formal records requests (that MUNI appears not to have reported as a revised number to Rose).

Other departments reported incorrect job classification codes of employees providing public records, and at least three departments submitted revised surveys to Rose following my fact checking.

Third, multiple biases are involved, including “negative respondent bias,” involving those with an animus to Sunshine who may be overstating estimated costs.

Rose’s survey relies on “retrospective recall bias,” in which employees were asked to report from foggy memories estimated vs. actual hours spent responding to records requests. (Of the 41 City department responses received to date, just 4 of 264 staff members who reported having spent time responding to formal Sunshine requests indicated they were reporting actual hours; 120 reported estimated hours; and 140 failed to report whether their time was estimated or actual.) Of the claimed 48,787 hours initially reported for this question (before the data were challenged and revised downward), just 658 hours (1.3%) were reported as “actual,” 12,018 hours (24.6%) were “estimated,” and the balance — 36,110 hours (74%) — failed reporting whether estimated or actual.

It’s well known that retrospective recall is affected by a number of factors, including how far back in time respondents are asked to recall vague memories, ambiguity of questions asked, importance or aversion to the topic being asked, and motivations of those being questioned. Those harboring animosity to open government may have deliberately inflated their estimates.

Rose must surely know caution needs to be exercised with retrospective recall estimates, since errors due to confounding and bias are more common in retrospective studies than in prospective studies.

Fourth, Tinkerer Wiener did not request Rose evaluate benefits to taxpayers and the public of Sunshine, since the analysis focuses simply on “costs,” not a full cost-benefit analysis. For instance, we now know Dr. Kerr’s and Dr. Rivero’s dogged Sunshine requests led directly to restitution of $350,000 wrongly misappropriated from Laguna Honda Hospital’s patient gift fund, just one of many clear benefits of Sunshine.

My persistence researching and publishing articles about change orders regarding Laguna Honda Hospital’s $183 million in rebuild cost overruns may have contributed to the City finally suing Laguna Honda’s architects in Superior Court, hoping to recover $70 million of the now-admitted $87 million in change orders.

Surely there are other examples of Sunshine benefits related to Sunshine records requests, which Wiener ignores and Rose isn’t examining — just as Rose failed to examine for Ms. Kim any benefits the City’s 86 boards and commissions bring to public oversight.

Fifth, Rose’s flawed survey asks for neither the types of records requested — many of which are codified for disclosure by other laws — nor the types of requestors.

For example, the Department of Emergency Management dutifully reported it had received 1,221 formal records requests, and admirably provided its records request log to George Wooding, which reveals that just 59 requests — a scant 4.8% — were for information that were not related to the City’s 9-1-1 call center for computer-aided dispatcher records. Of those 59 requests, fully 25% were placed by insurance companies, lawyers, or the media. Of the remaining 1,168 CAD-related 9-1-1 requests, 34% were placed by insurance companies, lawyers, and the media.

Over at the Mayor’s Office, of 102 public records requests, just 44% requested the mayor’s appointment calendar, his correspondence, or miscellaneous records. The remaining 56% of information requests to our mayor concerned development issues, public policies, Occupy SF, appointments to boards and commissions, the City budget, and assorted issues. And of those 102 requests to the mayor, 40.2% were placed by members of the media, 44.1% placed by private citizens, and the remaining 15.7% were placed by lawyers, organizations, political candidates, intergovernmental organizations, and other requestors.

Rose isn’t likely to report on either the types of records requested or the categories of records requestors, and Wiener may not understand — despite being a Harvard University-trained lawyer and former deputy city attorney who must have heard of the First Amendment, if only while in law school — that the media and lawyers are expert at using state and federal laws to pry loose public records, with or without our local Sunshine Ordinance, even if Wiener’s agenda may be to weaken San Francisco’s own open records laws.

Rose isn’t likely to report, either, about the increased costs of Sunshine compliance caused by a handful of recalcitrant City departments who fight open disclosure every step of the way, often on advice they claim was provided by City Attorney Dennis Herrera’s office. Herrera claims well over $1 million was spent advising City departments about Sunshine. Rose may not factor into the costs of Sunshine compliance the cost of deliberate non-compliance fueled by the City Attorney’s bad advice to City departments stalling disclosure.

While it may be an admirable goal to determine costs of Sunshine, Rose can’t do that with the deeply flawed survey data he’s collecting.

The value of open government far outweighs the cost. If Rose also wrongly estimates Sunshine costs are $6.5 million — as he did estimating costs of boards and commissions for Supervisor Kim — that will again represent less than one-tenth of one percent of the City’s $6.834 billion budget, a paltry sum to provide right-to-know information to the public about what our government is up to.

Instead of swatting at potentially two-tenths of one percent of the City budget spent on boards, commissions, and compliance with Sunshine, Supervisors Kim and Wiener might more appropriately focus on the City’s escalating overtime budget approaching $300 million, fixing potholes, or finding a way to reduce the City’s now $1.49 billion spent in “total pay” excluding benefits for the City’s 11,756 highest-paid employees now earning over $90,000 annually.

After all, picking on Sunshine is bullying by any other name. Bullies Wiener and Kim must surely know this, even as they tinker attempting to change open government using Rose’s flawed analyses as fodder.

Monette-Shaw is an open-government accountability advocate, a patient advocate, and a member of California’s First Amendment Coalition. Feedback: monette-shaw@westsideobserver.com.

April 201

Westside Observer’s Reporter Patrick Monette-Shaw Wins Madison Award for Laguna Honda Series

By Doug Comstock

The Northern California Chapter of the Society of Professional Journalists (SPJ) will honor Patrick Monette-Shaw, long-time contributor to the Westside Observer, with its annual Freedom of Information Advocacy honor—the James Madison Award. The SPJ has conferred its FOI awards for the past 27 years to individuals and organizations who make significant contributions defending public access to meetings, public records, and the public’s right to know.

Patrick Monette-Shaw has been reporting on the twists and turns of the money trail and the many scandals surrounding Laguna Honda Hospital for over two years, a subject that has been ignored, in large part, by the major news sources.

“Being honored along with the other 11 James Madison Award category winners is humbling, given the stature of the editors, lawyers, and other journalists also receiving awards this year,” Monette-Shaw said, “I’m thrilled to receive this award in the same year as two of my mentors, lawyer Allen Grossman, a prominent Sunshine expert, and Larry Bush, editor of CitiReport.com, who focuses on ethics in City government.”

Monette-Shaw began looking into the mismanagement of LHH’s patient gift fund in May 2010 after KGO-TV aired Dan Noyes’ I-Team investigation of the gift fund and termination of two LHH doctors who had first exposed it in a formal Whistleblower Program complaint over probable misappropriation of patient funds. “My continuing coverage of the gift fund scandal in the Observer helped to force an audit of the fund — which City Hall wanted to sweep under the rug — that eventually resulted in restitution of $350,000 misappropriated from patient use,” he said.

“It is a great honor to have Patrick’s work recognized with the Madison Award,” said Mitch Bull, publisher of the Westside Observer and Castro Courier newspapers. “In this day and age of ‘sound bite’ journalism San Franciscan’s are truly fortunate to have publishers and writers with truly-local neighborhood papers that are willing to investigate stories that otherwise wouldn’t be touched by the dailies. That’s our mission at the Westside Observer and I couldn’t be more proud of Patrick and our entire team that brings important news stories to our readers each month.”

“I’m grateful that the Observer has included me among their contributing columnists for the past three years, providing me an outlet for my articles,” Monette-Shaw said, “its an honor in its own right,” .

“Our monthly publications focus on what’s important on a hyper-local level,” Publisher Bull said. “Schools, zoning, crime, health-care and the local economy are all issues that affect each of us and are ones that we care about. In addition we aim to provide neighborhood specific information that might not interest the larger publications.”

March 2012

 

Laguna Honda Hospital

Amid Noise Complaints, City Sues Architects

By Patrick Monette-Shaw

Most homeowners in the neighborhoods surrounding Laguna Honda Hospital initially had no reason to believe that the $584.9 million replacement hospital — which has actually cost $615.8 million, including furniture, fixtures, and equipment and other costs — may end up lowering their property values.

The Tax Assessor’s Office has apparently informed some homeowners that they should ask for a $50,000 reduction on their tax basis due to on-going noise problems LHH hasn’t resolved for over two years. Midtown Terrace homeowners have also been advised by a prominent San Francisco legal observer that they should sue.

Separately, the City is now suing Laguna Honda Hospital’s architects in Superior Court for professional negligence in a case filed against Stantec Architecture, Inc. on December 12, 2011.

Following a decade of listening to the construction noise during LHH’s rebuild, surrounding neighbors were happy the new hospital was substantially completed in 2009. But little did anyone realize that the real noise problems at LHH were just beginning.

Thousands of alarms and hospital bells had to be tested, an understandable noise annoyance. But aside from the alarms testing that went off continually throughout the day and night, a new noise began emanating from LHH that proved to make normal life almost unbearable for neighbors surrounding the new hospital.

The hospital installed air cooling equipment and several generators that emit continuous high pitched noises. Unfortunately, the generators and air handling equipment were installed on the roof of the new hospital, at the same elevation as neighboring homes. Hospital administrators claim the noise is just below the legal limit on decibels, but the noise is unbearable to many neighbors who can no longer use their backyards or parts of their homes.

Neighbors have complained continually about the noise problem for the last two years. Although LHH tried a variety of methods to eliminate the source of the noise, all attempts have failed.

Compounding the new noise problem is the completely unfriendly attitude of LHH’s hospital staff. LHH’s director of communication, Marc Slavin, is now trying to blame the neighbors who complain about the incessant noise.

Terry Thompson, a neighbor on Dellbrook Avenue directly behind LHH, was told after making his first noise complaint that LHH had existed for over one hundred years and he should have known about LHH’s potential noise problem before purchasing a house adjacent to LHH in 2008. Arla Escontrias, LHH’s former Director of Community Affairs, reportedly callously told Thompson early on that he “shouldn’t have bought a house near a hospital.”

During the December 29, 2011 meeting of the LHH Joint Conference Committee (JCC) — a committee comprised of senior hospital managers and Health Commissions Sonia Melara, James Illig, and Margine Sako — hospital Executive Administrator Mivic Hirose reported to the JCC that there were only one or two neighbors who were complaining about the noise emanating from LHH. During that meeting, Commissioner Illig peppered Slavin about how many neighbors were complaining. Slavin sought to minimize the problem, focusing principally on Mr. Thompson.

On January 31, 2012, eight neighbors attended the JCC’s next meeting to testify to the Health Commissioners that upwards of sixty-five neighbors had signed a petition circulated by Mr. Thompson regarding the noise nuisance. To Slavin — an expert in spin control — 67 means “2.” The three commissioners were joined by Health Commission president Dr. Steven Tierney on January 31. None of the four commissioners looked happy following testimony by neighbors who directly challenged Slavin’s and Hirose’s veracity, testifying that their calls are not being returned, and they aren’t getting honest answers about what LHH’s administrators are going to do about the noise.

One neighbor, who attended on January 31, was surprised by another item on the agenda, LHH’s Resident Satisfaction Survey. This badly designed survey was dreamt up to document that the “built environment” — LHH’s new digs — may improve patient outcomes.

Neighbors were under-impressed by the marginal change in Resident Satisfaction scores between the old and new buildings, in part given that taxpayers paid $615 million for the new buildings.

In the post-move survey in 2011, only 39% of patients rated their Overall Satisfaction as “excellent,” up from 28% who had rated their Overall Satisfaction as excellent in the old buildings in 2009. On another measure of Quality of Care, the survey moved just four percentage points — from 32% in 2009 to 36% in 2011 — for those indicating their Quality of Care was “excellent” post-move.

Former LHH physician Dr. Derek Kerr noted during the meeting that expenditures from the patient gift fund during the six-month period between July 1 and December 31, 2011 were just $48,177, which may annualize to less than $100,000 for the year. This is the lowest ever gift fund expenditure level, down from $456,545 in 2006–2007.

Even health commissioners present on January 31 were skeptical about the results of the Resident Satisfaction Survey. Commissioner Illig commented that the drop in expenditures on patient activities could correlate with the satisfaction surveys regarding Quality of Life indicators.

During public comment, Kerr, who was terminated for blowing the whistle on LHH’s patient gift fund scandal, commented that one question in the survey reporting the least satisfaction involved staff responsiveness to patient concerns, since patients may mistakenly believe there isn’t enough staff even though LHH has the highest staffing ratio of any skilled nursing facility in the area.

The Eden Alternative, a philosophy of humanizing facilities as places where Elders live in habitats designed for human beings rather than facilities for the frail and elderly, believes that staff treat patients the way that staff are treated by their supervisors. So, if staff isn’t treating patients well as reflected by patient satisfaction surveys, observers need to look at the way administration treats staff. In other words, Mivic Hirose’s top-down management style may not be working well.

Hirose claims LHH has sent 40 staff for Eden Alternative training, but Dr. Kerr and his colleague Dr. Maria Rivero may have been the only trained Eden Alternative Associates at LHH since 1998. Rather than listening to Kerr and Rivero, LHH hired Lumetra Consulting for $250,000 to teach staff that patients are experts in patient care, and staff knows the most about patients.

Logically, LHH’s administration should support staff so its staff can better care for patients, but observers agree that no amount of training will fix LHH with Hirose in place, in part because she doesn’t dare make a move without Slavin’s consent. Her management style, (and possible role in abuse of the patient gift fund), is the antithesis of Resident-Centered Care, a mantra foisted on staff for the past decade with scant improvement in resident satisfaction.

That brings us to the lawsuit the City has filed against Stantec Architects, Inc., a joint venture that began when Anshen + Allen Architects, in a partnership with Gordon H. Chong Partners, were first awarded the contract to design LHH in 2000. In 2007, Stantec acquired Chong Partners when it dissolved. Throughout construction of LHH’s new campus, Turner Construction has also been involved.

The City’s lawsuit filed on December 12 alleges, among other issues, that the replacement project’s costs exceeded the budget by at least $100 million, and that architectural design defects include improper building envelope waterproofing; lack of coordination between mechanical, electrical, and plumbing systems; cooling system design deficiencies; building code non-compliance; lack of compliance with the Americans with Disabilities Act; incomplete design of the radiology suites; deficient design of cart-wash areas in the kitchen that resulted in water damage and mold; and other eye-popping defects.

The lawsuit also alleges that the “change order” process — design changes that occur mid-way through a project — resulted in excessive design modifications reflecting an incomplete, inaccurate, and inadequate design that fell below the standard of care. The City alleges construction drawings and specifications in formal Construction Documents were incomplete, inaccurate, inadequately coordinated, not compliant with applicable codes, and contained numerous conflicts, ambiguities, and other design errors and omissions.

As readers may recall, I wrote about LHH’s change order snafus in the Observer’s May 2010 issue (“LHH Lessons Unlearned Impacts All Bond-Financed Projects”). At that point, LHH claimed just $71.6 million in change orders. As recently as January 26, 2012, LHH now admits the change orders total $87.45 million, a $16 million increase in change orders between May 2010 and December 2011 that still doesn’t address the full $183 million in costs overruns.

The lawsuit claims about $70 million in change orders that the City wants to recover, plus compensatory damages and general damages, among other demands for relief. But there’s no relief for LHH’s neighbors mentioned in the lawsuit, who have had enough with the noise problem emanating from LHH.

And there’s no relief offered for patients, who express dissatisfaction with basic services, like operational elevators.

The City’s lawsuit surprisingly alleges it was the architects who recommended eliminating 420 of LHH’s planned beds, in order to control costs. Is San Francisco now this much poorer for skilled nursing beds for our frail elderly because an architectural firm (that may not have understood the patient environment it was designing) made multiple goofs?

Along the way, there have been extensive design scope reductions, many of which may have unwittingly contributed to the Resident Satisfaction Survey responses.

For instance, LHH’s morgue, which was designed to house a stainless-steel upgrade, was outsourced to Emeryville when the 16-unit freezer was delivered, only to discover that it was too tall to fit into the space the architects had designed. Now, families have to travel 11 miles out of the City to recover the remains of deceased family members.

Galley dining — long touted as an Eden-like alternative to being fed by tray in patient rooms — has been eliminated. A dialysis center at LHH has still not been built, causing patients to still undergo transport off site for dialysis treatment.

Lights in the main lobby of LHH’s new entrance periodically and unexpectedly go out, worrying security staff. The two new elevators in the hospital’s new entrance have failed on more than one occasion, both at the same time, jeopardizing safe patient transport during emergencies. For that matter, stroke and brain-injured patients admitted for physical medicine rehab at LHH — including physical, occupational, and speech therapy — cannot be transported from their patient rooms to the Rehab Services department on the floor below when elevators go missing in action.

Indeed, LHH staff was shocked to learn in early 2005 that the architects had been unaware when they first designed the buildings that fully 60% of LHH’s patients used wheelchairs for mobility. That percentage may have increased since then.

This may explain why one entrance to the Rehab Services training kitchen was built too narrowly to allow wheelchair users to access that training area, and why the Rehab training bathroom was built with a shower too narrow for most patients to enter, or use, safely.

LHH has never enumerated what design scope reductions have been made at each step of the way. San Francisco’s Citizen’s General Obligation Bond Oversight Committee charged with monitoring bond expenditures, has never inquired about, and has not followed up on for over two years, either the change order debacle or project scope reductions at LHH that may contribute to power patient satisfaction scores.

Notably, the City’s lawsuit doesn’t bother mentioning the Board of Supervisor’s approved “design-build” and so-called “value engineering” approach that permitted contractors to suggest cost saving design changes during bidding in 2004, and whether either approach contributed to design defects.

No small wonder the City is belatedly suing LHH’s architects. Will neighbors be the next ones to sue?

Monette-Shaw is an open-government accountability advocate, a patient advocate, and a member of California’s First Amendment Coalition. Feedback: monette-shaw@westsideobserver.com.

March 2012

 

Laguna Honda Hospital Scandal

Laguna Honda Hospital’s 2010 Fundrasing Dinner

Black-Tie Gala Event’s $260,788 Expenses

By Patrick Monette-Shaw

Who knew that it took spending over a quarter of a million dollars to throw a fundraising party that barely returned 34% of event proceeds to benefit actual patients?

Although Laguna Honda Hospital, and its two affiliated non-profits — Laguna Honda Volunteers, Inc. (recently renamed Friends of Laguna Honda) and the Laguna Honda Foundation run by former City Attorney Louise Renne — have refused for over 18 months to release financial information about its June 2010 fundraising Black Tie Gala Dinner, the truth was bound to come out eventually, since truth always trumps myth and secrecy.

Here it is a year-and-a-half following the June 2010 event, and the public is just now learning about the event’s financial shenanigans.

In December 2011, the IRS provided a copy of Laguna Honda Volunteers, Inc.’s Form 990 tax return for the period ending December 2010. The tax return exposes the myth that the Black Tie Gala Dinner would principally benefit Laguna Honda’s patients, since facts in the return show that only $189,504 (34%) of the $558,821 raised by this event appears to have been retained by Volunteers, Inc. whose mission is to support patient benefit.

It is unknown how many party-goers attended the Black Tie Dinner event, so the cost-per-head may never be known to explain why the dinner cost $108,095 just for food and beverages, nor why there was an additional $58,943 in other non-food expenses, totaling $167,038 in event expenses, fully 30% of the event’s proceeds.

But that’s without the lucrative professional fundraising fee of $93,750 paid to Supervisor Sean Elsbernd’s preferred event fundraiser, Nichelle Lyons, who snagged nearly 17% of the Gala Dinner’s event proceeds for conducting “fundraising” (Volunteers, Inc.’s 2010 Form 990, Schedule G, Part I, Line 2b). Her steep fees, perhaps guaranteed for a percentage of the take, is eerily reminiscent of the fundraising scandal involving the San Francisco AIDS Foundation and its former fundraiser, Pallotta and Associates. After being gouged by excessive fundraising fees for years by Team Pallotta, SFAF had to go to court to end its unholy contract with its fundraiser.

I reported last February that Volunteers, Inc.’s 2009 Form 990 IRS tax return showed it had paid Lyons $10,000 in 2009. In addition, Community Initiatives — Lousie Renne’s so-called fiscal sponsor for her Lagund Honda Foundation — reported on its IRS Form 990 for the period ending June 2009 that it had paid Ms. Lyons another $42,998 for fundraising related to Supervisor Sean Elsbernd’s 2009 crab fest to raise funds for Renne’s Foundation. While Elsbernd’s 2009 Crab Fest raised a total of $151,000, Lyon’s fundraising fee took almost one-third from that event’s purse, returning just $108,652 to Renne’s Foundation.

The 2009 tax returns show Lyons had been paid at least $53,998. Tack onto that the $93,750 Ms. Lyons earned from LHH’s Black Tie Dinner reported on Volunteers, Inc.’s 2010 tax returns, and she’s nearing the $150,000-in-fundraising-fees pinnacle.

Beyond the $260,788 spent in 2010 just to throw this fundraising party, including Ms. Lyon’s fee, Volunteers, Inc.’s tax return for 2010 shows that it also awarded a $108,529 “grant” to Louise Renne’s Laguna Honda Foundation. Before the Black Tie event, Supervisor Elsbernd tried to push off on party goers that the June 2010 Gala event would benefit Laguna Honda Volnteers, Inc., apparently exclusively, even though Melanie Beene, CEO of Community Initiatives (the fiscal sponsor for Renne’s Foundation) had indicated that there may have been a pre-event revenue-sharing agreement in place with Renne’s Foundation.

The purpose of the 2010 Volunteers, Inc. “grant” awarded to Renne’s Foundation is reported to be to “support the new Laguna Honda Hospital building and other hospital patient services,” but that is not the primary exempt purpose for which Ms. Renne’s Foundation had been formed. When she applied for non-profit status, Ms. Renne told the IRS she would raise $15,000,000 for furniture, fixtures and equipment for LHH’s new digs (which she never did, and which appears to being funded by taxpayers through the General Fund and perhaps “Certificates of Participation”), and to raise funds for long-term care research. There was never any mention that Renne’s Foundation would be involved in providing services to hospital patients, or in supportng the hospital’s new buildings.

Unfortunately, Volunteers, Inc.’s tax return does not reveal whether Renne’s separate Foundation received not only the $108,529 grant, but perhaps also received a portion of the Black Tie event’s proceeds in addition, since Ms. Beene had indicated Renne’s Foundation was on track to share donations to the event.

In stark contrast, Volunteers, Inc. donated just $48,743 in cash grants in 2010 to Laguna Honda Hospital to make resident outings possible, spending about half for resident outings than it paid to Nichelle Lyons for “fundraising.” Another way of looking at this is that Volunteers, Inc. also spent over twice as much on a grant to Louise Renne’s Foundation — for God only knows what purpose — than it spent for patient outings.

Between overhead for throwing the Black Tie Gala Dinner and the “grant” to Renne’s Foundation, fully 66% of the Black Tie event’s proceeds appear to have been spent on everything but patient amenities.

Although Volunteers, Inc. claims it spent $409,240 on actual program services in 2010, $108,531 is attributed to “Laguna Honda Hospital and Rehabilitiation Center ‘Promotions’,” a new category not previously reported and not defined, an amount just $2 more than the $108,529 reported as having been awarded to Renne’s Foundation. Nobody has a clue yet what the “Promotions” category of spending is intended to fund, or how it is “Program Services” — or whether the “Promotions” spending was the same funds given to Renne’s Foundation.

Only 63.5% ($409,240) of Volunteer, Inc.’s 2010 expenditures in 2010 were for actual program services (which may be inflated by the giving to Renne’s Foundation). The remainder — 36.5% ($235,228) — was spent on “management and general” and ”fundraising,” almost evenly split at 18% each. This is the first year that Volunteers, Inc.’s fundraising expenses reached 18.5% ($119,148) of all expenditures.

Has Laguna Honda Hospital, and it’s affiliate non-profit organiztions, forgotten that Sunshine always trumps secrecy?

Monette-Shaw is an open-government accountability advocate, a patient advocate, and a member of California’s First Amendment Coalition. Feedback: monette-shaw@westsideobserver.com.

February 2012