On Housing Proposal for Laguna Honda Hospital’s Campus
District 7 Candidates' Cavalier Responses
by Patrick Monette-Shaw
I distinctly recall a conversation I had a decade ago with a then-sitting district Supervisor when I sought help with an issue regarding Laguna Honda Hospital (LHH).
I was shocked then — and still am — by his response, in which he indicated that Supervisors tend to take a hands-off approach when it comes to issues about facilities in other Supervisor’s districts, and they routinely defer to D-7’s Supervisor (regarding LHH).
It was preposterous, precisely because LHH is not an “asset” reserved for — and subject to the whims of — a single district Supervisor. It’s a citywide public healthcare facility, and always has been.
It would be analogous to a Supervisor saying they were reluctant to address issues involving San Francisco General Hospital, which is located in District 10. Clearly, SFGH is also a citywide resource available to all San Franciscans, regardless of the districts they live in. Obviously, all 11 Supervisors should be involved in issues regarding both LHH and SFGH since their constituents rely on both public health facilities.
The Westside Observer featured an article in August 2020 surveying six candidates for District 7 Supervisor ... The questionnaire sent to candidates barely mentions whether housing on LHH’s campus is appropriate, but responses to three questions were informative.”
The Westside Observer featured an article in August 2020 surveying six candidates for District 7 Supervisor in the November 2020 election to replace Supervisor Yee, who is termed out. The questionnaire sent to candidates barely mentions whether housing on LHH’s campus is appropriate, but responses to three questions were informative.
“CEQA Streamlining” Question
The six candidates were asked whether the Planning Department’s “streamlined” Standard Environmental Requirements (SER) run counter to CEQA, and whether they support it. CEQA is California’s 50-year old Environmental Quality Act that was signed into law in 1970 by then-Governor Ronald Reagan a year after the National Environmental Policy Act was implemented at the federal level. CEQA was designed to supplement the new federal law with even stricter standards regulating pollution and preserving the natural environment. CEQA requires California’s public agencies and local governments to measure the environmental impacts of development projects or other major land use decisions, and to limit or avoid those impacts when possible.
Five of the six D-7 candidates don’t support the Planning Department’s SER. Only Mr. Pinto supports it.
Candidate Matranga replied saying “CEQA provides an important opportunity to study impacts of irresponsible development, such as landslides. I oppose the current SER proposal because the public will be shut out of the process and projects would be pushed through without discussion.” Matranga was the only one of the six candidates to even come close to noting that LHH’s campus is located in a landslide-prone neighborhood. He was not the only candidate to express concerns about shutting members of the public out of the discussion and development processes.
Candidate Murase thoughtfully responded by writing “I stand with the Sierra Club opposing the SER Ordinance being pushed through now while environmental advocates and the public are struggling against a global pandemic. … There must be full discussion on legislation that could undermine CEQA.”
Engardio wrote, “While I support less bureaucracy and more government efficiency, I am disappointed that the planning department chose to initiate changes during the pandemic when the community could not gather to express their views and concerns. … Planning has said the streamlining is not meant to avoid CEQA environmental review, but the manner in which they tried to push it through with minimal public input does not instill confidence. Developments that will change our neighborhoods for generations deserve robust community-driven review.”
Unfortunately, following his first two unsuccessful attempts at being elected D-7 Supervisor, Engardio neglected to mention there has been zero — not robust — community-driven input or review of Supervisor Yee’s proposal to build 375 senior housing units on LHH’s campus during the two-and-a-half-years since Yee introduced his proposal in March 2018.
Melgar responded to the candidate questionnaire saying she doesn’t support the Planning Department’s SER change, writing “CEQA is an important tool. This proposal attempts to shortcut community process by assuming environmental impact, and requiring mitigation of those impacts upfront. The problem with this approach is that it gives staff all the power, and assumes that community input is not valuable. I disagree.” Melgar also didn’t mention that there has been no community processes on Yee’s LHH housing proposal.
Candidate Nguyen replied, saying, “I oppose the SER Ordinance. As a general rule, I vocally oppose measures that reduce transparency and oversight, especially given the corruption at City Hall. SER would give the Planning Department and Planning Commission too much unilateral control over environmental issues. CEQA is one of California’s most important environmental safeguards and should be protected.”
Martin-Pinto was the only D-7 candidate who backed Planning’s change. Has he studied, or thought about the problem? Martin-Pinto wrote simply “I support any process that reduces bureaucracy and simplifies approval processes.” Apparently, Martin-Pinto doesn’t care whether members of the public are completely shut out of the process when it comes to development in their respective neighborhoods.
Of note, none of the six candidates mentioned anywhere in any their responses that the Mayor’s Office of Housing and Community Development(MOHCD) and Supervisor Yee’s LHH housing proposal has been designed over the past two-and-a-half years to avoid a new — or any additional — CEQA review of Yee’s LHH housing proposal. MOHCD and Yee are hoping to “grandfather” the now 375 housing units proposed for LHH’s campus by shoehorning it on to LHH’s initial CEQA review in 2002, despite the intervening 18-year period. They are willfully ignoring the fact that the now proposed 375 housing units are far more than the 240 assisted living units proposed in the CEQA review for the entire LHH rebuild project, but were never built.
the now 375 housing units proposed for LHH’s campus by shoehorning it on to LHH’s initial CEQA review in 2002, despite the intervening 18-year period. They are willfully ignoring the fact that the now proposed 375 housing units are far more than the 240 assisted living units proposed in the CEQA review for the entire LHH rebuild project, but were never built.
“Balboa Reservoir, Parkmerced, and Laguna Honda Housing”
Candidates were asked — given the work-from-home and telecommuting trends resulting from the COVID pandemic — whether they support the need for the Balboa Reservoir development, Parkmerced expansion, and housing development on Laguna Honda’s campus.
Five of the six candidates responded without any apparent clear understanding.
Candidate Matranga replied predictably saying lamely “Many of these projects have been approved by the current Board of Supervisors. I believe it is critical that the incoming Supervisor ensure that promises made to our community are promises kept.”
What Matranga appears to have missed is that the full Board of Supervisors has not approved Supervisor Yee’s questionable proposal to build housing on LHH’s campus, and neither has San Francisco’s Public Health Commission, which essentially owns the land. Clearly, Yee’s LHH housing proposal has not been “promised,” so this can’t possibly be about keeping promises kept.
Murase responded by writing “No, we still need all of these developments because they represent important additions to housing stock, especially affordable and family-friendly units.” How did she completely miss understanding that the proposed LHH housing is not for family-friendly units?
Engardio wrote “The pandemic has not lessened the need westside residents have when it comes to senior housing to age safely in place near their neighborhood or middle-income housing for their adult kids and grandkid to remain in San Francisco. A reasonable amount of housing at Balboa Reservoir (with ample parking) could be helpful. But we shouldn’t give the public land away for a song!”
What escaped Engardio is that the senior housing Yee is proposing for LHH’s campus that the MOHCD is now trying to shove through does not provide for building the senior housing throughout the entire City or anywhere near their current neighborhoods. Instead, Yee is aiming to cram 375 housing units into a single neighborhood, District 7, that he represents. And the housing at LHH is not for middle-income adult kids of the seniors.
Melgar, for her part, responded “No, all [of] those projects should go forward. … We are still very far from solving our housing shortage, particularly housing for middle income families.” Melgar doesn’t appear to understand that the housing proposed for LHH is not housing for middle-income families. Instead, it appears to be housing restricted to seniors earning between 30% and 80% of AMI, which is considered to be low-income housing.
Mr. Nguyen responded by saying “No. All of the developments above need to continue.” Clearly, Nguyen put no thought into this.
Candidate Martin-Pinto was the only one of the six D-7 candidates who appeared to have put any original thinking into his response, writing “Before we up-zone all of San Francisco which could have permanent, unintended, adverse effects, we need think about whether this is necessary.”
Martin-Pinto clearly missed the biggest adverse effect: if Yee succeeds at placing senior housing on the same spot as the 420-bed skilled nursing tower that was eliminated due to cost overruns on the LHH replacement facility rebuild, it will permanently impede the City’s ability to build out additional medical facilities on LHH’s campus as the City’s population increases to address hospital surge capacity.
The spot where Yee and MOHCD want to place housing on LHH’s campus is the last large piece of undeveloped land on the campus for construction. If it is used for housing, there will be no space left to build additional medical facilities on the campus as the City’s needs and population evolve.
“Open Space” Question
Many neighborhoods surrounding LHH refer to the campus as the “Laguna Honda Hospital Open Space Reserve.” Whether or not it is formally designated as an Open Space worthy of protection, the trails are referred to as the Laguna Honda Community Trails System, which has received Open Space funding to restore the trails.
Candidates were asked whether they support preserving “Open Space” in the City for future generations. Open Space is broadly defined as undeveloped land not intended for housing or commercial purposes that is generally publicly-owned and open to the public. Indeed, as land owned by a government agency LHH’s campus is zoned “P” [Public], which prohibits any residential uses and essentially bars building residential housing on public parcels, unless the Board of Supervisors creates a Special Use District — which has not happened.
Five of the six candidates didn’t equivocate. Candidate Ben Matranga said he favors preserving Open Space, and opposes privatizing public parks. Candidate Emily Murase said she is committed to preserving these for current and future generations. Candidate Vilaska Nguyen says he supports preservation of our Open Spaces, and says we need to fight to protect and maintain them. Candidate Joel Engardio said there is limited open space in San Francisco, and added “We can’t give precious parkland space up for anything else.” Candidate Stephen Martin-Pinto responded saying he supports preservation of open space, because “There is little of it left and we need to protect what remains.”
The five of them should all fight aggressively to oppose privatizing any portion of LHHs campus, which is both public land and parkland, via LHH’s urban trails.
Only candidate Myrna Melgar hedged her bets, responding by saying “Some revenue producing buildings on parklands provide enjoyable amenities to parkgoers as well as needed revenue. As long as there is a transparent process that includes public input, follows contracting rules, and provides for periodic performance review of operators, I support revenue producing buildings on parklands.”
One problem Melgar all but ignores is that there has been absolutely zero public input regarding Yee’s proposal to build housing on LHH’s campus, and there has been nothing transparent about it since Yee first pitched his proposal back in March 2018. Another problem she ignores is that placing housing on LHH’s campus is not revenue-producing for the City. It would only be revenue-producing for a private-sector developer chosen to build the housing project.
Notably, none of the six candidates bothered to mention the Laguna Honda Trails, which encircles most of the perimeter surrounding the Laguna Honda Hospital campus and is considered to be Open Space. The trails were restored through a partnership between the San Francisco Urban Riders (SFUR), Laguna Honda Hospital, and other organizations to help construct a citywide network of bike-friendly trails. The trails also double for other uses, like hiking and trail running.
Nor did any of the six candidates bother to mention Laguna Honda Hospital’s entire campus — including its hiking and dirt bike’s trails system encircling the campus — has been locked down to members of the public and under quarantine for over six months, since March 6 when Mayor Breed issued her shelter-in-place quarantine due to the COVID-19 pandemic.
If housing is built on LHH’s campus, when the next inevitable pandemic hits San Francisco will the housing be exempt from some future campuswide quarantine, or will occupants of the housing also be forced into lockdown mode?
Yee has acknowledged that he had been working for four years, since 2016, to bring senior housing to 250 Laguna Honda Boulevard. Then he moved it to LHH’s campus. Four years later, Yee’s vision for his legacy project has gone nowhere, and should be abandoned.
All six D-7 candidates should re-evaluate their policy positions regarding placing housing on LHH’s campus. It’s a citywide resource, not a plaything of any incumbent D-7 Supervisor. District 7 voters and their supervisorial candidates should not forget that.
Pivoting from the COVID-19 fast ball to solving the City’s budget deficit slow ball, Mayor Breed pulled out her cudgel. She struck out.
She should have reached for an SFGH surgical scalpel. That might have prevented her own senior City managers represented by the Municipal Executives’ Association (MEA) from almost instantly rejecting her budget plea.
Displaying sheer hubris, Mayor Breed demanded in the Examiner on July 31 that City employees postpone scheduled raises in December, raises Breed claims will save between $55 million and $270 million. They were actually raises due July 1, 2020 that had been first postponed automatically by explicit language incorporated into labor union contracts members had ratified and adopted before July 2019. Of course, she’s not mentioning that she’s now demanding a second delay to the long-scheduled raises.
That’s not a balanced budget; it’s a gaping hole she plans to solve by kicking pay-raises bargained for in good faith down the road.”
Stomping her foot and shaking her curls, Breed asserted that if City employees don’t agree to re-open and hopefully re-ratify their contracts by agreeing to delay raises they desperately need, layoff’s will ensue. She didn’t mention contracts between the City and its labor unions have not formally been forced to re-open since then-Mayor Newsom forced unions to re-open contracts in February 2009 to accept unpaid furlough days in lieu of a scheduled 3.75% pay raise.
Re-opening contracts to approve negotiated side letters mid-course may be routine. But re-opening contracts to alter negotiated scheduled pay raises rarely happens, even in San Francisco. You could count that using a single hand.
The $55 million represents just four-tenths-of-one-percent (0.4%) of the $13.7 billion City budget for FY 2020–2021 she submitted last week to the Board of Supervisors.
Breed’s second-year budget for FY 2021–2022 is $12.6 billion, for a combined total of $26.3 billion across the two fiscal years (FY 2020–2021 and FY 2021–2022). She also wants employees to defer additional raises already negotiated for FY 2021–2022, and claims she’ll save up to $270 million by deferring wage hikes in both years. Although $270 million would represent just 1% of the $26.3 billion combined two-year budget, both the $55 million and $270 million amounts Breed is tossing around appear to be bogus numbers.
Breed Ignored Two Budget Hurdles
When Mayor Breed met with her director of public policy and finance, the City Controller, and the Board of Supervisors’ Budget Analyst to prepare the March 2020 Joint Report required before developing the City budget for Fiscal Years 2020–2021 and 2021–2022 starting on July 1, 2020, all four knew the first hurdle involved a $1.7 billion budget shortfall.
When they met, they knew a second hurdle involved 50 separate union contracts staring them in the face that contractually promised pay raises on July 1, 2020.
They introduced a first-year budget of $13.7 billion for FY 2020–2021, adding another $1.4 billion above Breed’s $12.3 billion budget for FY 2019–2020, essentially ignoring the $1.7 billion budget shortfall. In fact, when the FY 2020–2021 budget was initially introduced in July 2019 and adopted as the then-second-year budget, it stood at $11.9 billion. But it grew by $1.7 billion to $13.68 billion when it became the first-year budget for FY 2020–2021, as if Breed and company had simply tacked the whole $1.7 billion shortfall onto the second-year budget adopted in July 2019, as if they were playing a game of pin the tail on the donkey or Whack-A-Mole.
When the four met to develop the new budget, they also knew the majority of contracts with City unions — including the MEA, MUNI transit employees, SEIU Local Per Diem Nurses, and SEIU Local 1021 Miscellaneous — all contained contract language to award employees three percent raises on July 1, 2020 and a half-percent raise on December 26, 2020, plus similar raises totaling an additional 3.5 percent during 2021. The contracts contained written clauses to postpone each of the four raises for up to six months.
The Examiner reported Breed said “I want to be very clear — if the unions don’t agree to delay their raises, then we will be forced to lay people off. We will be forced to cut city services.” She essentially threatened City employees, suggesting her hiring binge as mayor was somehow the employees’ fault.
Forcing Contract Re-Opener
The budget Breed announced and submitted to the Board of Supervisors on July 31 was not a balanced budget, as required, because it assumes she will succeed at hoodwinking City employees into delaying their scheduled pay raises for the next two years to reportedly save her $270 million. The only way she can do that legally is if unions members voluntarily agree to re-open their contracts, and she only has until December to get this done.
That’s not a balanced budget; it’s a gaping hole she plans to solve by kicking pay-raises bargained for in good faith down the road.
Breed’s playing a new game of raise-revoker, via a contractual do-over to postpone the July 1, 2020 raise a second time. Back in 2018, the City first got around to finally building into written labor agreements explicit language allowing postponing raises for up to six months when the City can demonstrate looming budget deficits of over $200 million. The three percent raises she wants postponed in January are actually the same three percent raises that were due on July 1, 2020 but automatically postponed, given existing contract language.
But she’ll have to get all unions to agree to re-open, and then re-ratify, their contracts to postpone that raise a second time to June 2021. If she succeeds, she’ll be the first mayor to ever pull the stunt of delaying a single pay raise twice. That’s not much different than Donald Trump stiffing his contractors and employees.
Cost of Raises Disputed
Within 24 hours after the Examiner article appeared in print, the MEA — which represents the highest-paid managers across the City who do such things as analyzing budget data for the Mayor — sprang into action and wrote to its MEA members on August 1 opposing Breed’s demand to forgo raises. The MEA’s position — standing in solidarity with all other labor unions — is: No layoffs. No wage cuts. And no furloughs.
MEA members — who all have a better understanding of City data than Breed does — documented that delaying the 3% raise due July 1 and delaying the 0.5% raise scheduled for December 26 would save Breed just $46.4 million, not the $55 million Breed claimed. And the MEA asserted the 3.5% raises for the following year in 2021 would save $48 million, for a combined total of $94.8 million across the two years, not the $270 million B.S. Breed pulled out of thin air.
The $270 million claim never made any sense. If the budget savings would have even been $55 million in the first year, why would it have mushroomed to $270 million in savings the second year? Breed’s math, once again, simply doesn’t add up. Maybe math isn’t her forte.
Breed Asserts Her “Sacrifice”
Piously, Breed flung gasoline on the fire, saying “I don’t think this is too much to ask. We all need to do our part to share in that sacrifice.” This is more hubris: What sacrifice has Breed shared in?
On July 1, 2018 she became mayor and her salary increased from $121,448 as a member of the Board of Supervisors to $322,073 as mayor through June 30, 2019 — a whopping 165.2 percent change increase in salary. That’s not what most folks call sacrifice.
Despite that $200,625 raise in pay, she accepted $5,600 split between two payments during 2019 from her subordinate, Mohammed Nuru, which she only belatedly got around to officially reporting to the Ethics Commission on May 29, 2020. Nuru first gifted Breed a $4,809 car repair bill on January 10, 2019.
After Nuru’s first gift Breed received another $28,462 raise on July 1, 2019 pushing her salary to $350,535 through June 30, 2020 — an additional 8.8 percent change increase in salary. Folks don’t call that a sacrifice, either.
Inexplicably, she then received Nuru’s second gift of a paltry $719 for a car rental 12 months later on Christmas Eve in December 2019 — after having pocketed $229,000 in City pay raises. Why was there a one-year delay between Nuru’s two gifts to her?
Decade-Long Mayoral Hiring Binge Was Unsustainable
If Lee or Breed learned nothing else as mayor, they should have at least learned that their decade-long patronage hiring binge of employees earning over $100,000 annually was unsustainable.
When Ed Lee was sworn in as Mayor on January 11, 2011 he inherited former Mayor Newsom’s FY 2010–2011 City budget of $6.6 billion. Two years later, London Breed was sworn in as a City Supervisor in January 2013; she became Board president two years later in January 2015. The ten budgets Lee and Breed submitted between FY 2011–2012 and FY 2020–2021 increased the City budget by $7.1 billion — to a staggering $13.7 billion — a 108% percent increase over Newsom’s final budget.
Lee and Breed added 8,398 City employees, resulting in 42,381 paid positions now on the City payroll through June 30, 2020. The extra 8,398 paid positions involved $1.48 billion in additional salaries (plus fringe benefits), pushing the City Controller’s payroll to $3.98 billion in total pay (before benefits).”
Lee and Breed added 8,398 City employees, resulting in 42,381 paid positions now on the City payroll through June 30, 2020. The extra 8,398 paid positions involved $1.48 billion in additional salaries (plus fringe benefits), pushing the City Controller’s payroll to $3.98 billion in total pay (before benefits).
Of the $1.48 billion in additional payroll costs since FY 2010–2011, 97% of the increase ($1.44 billion) went to the additional 8,630 employees now paid over $100,000 in total salaries. The 18,008 employees who earn over $100,000 now cost $2.7 billion annually. Just $42.3 million of the increased salaries went to employees earning less than $100,000 annually; there are now 24,373 employees who earn less than $100,000 as of June 30, 2020, down by 232 fewer employees in FY 2010–2011.
Among the new hires were 150 additional senior managers hired at MUNI (at an increased cost of $25.9 million), and 287 senior managers hired or promoted in the 50-plus additional City departments (at an increased cost of $74.3 million). Combined, the 437 senior managers have cost the City an additional $100.2 million in salaries (excluding benefits) alone.
Across that decade, Lee and Breed added 1,953 additional employees earning over $200,000 annually, at an increased cost of $458.8 million. In 2010–2011, there were just 267 employee earning over $200,000 at a total cost of just $60.3 million. The now 2,220 employees earning over $200,000 now cost a combined $519 million annually. The increase from 267 to 2,220 employees earning over $200K annually represents a 731.5 percent change increase.
Stepping down the salary food chain to those earning over $100K, the additional 8,630 employees earning over $100,000 annually pushed the total to now 18,008 employees earning over $100K, at a combined cost of $2.7 billion as of June 30, 2020. The 18,008 have average salaries of $150,012 (each) compared to the 24,373 City employees earning less than $100,000 annually, who have average salaries of just $52,591 annually (each). There’s that equity problem again!
Breed’s Own Hiring Binge
Lest anyone say the senior manager and excessive salaries hiring binge was all Ed Lee’s fault, a look at Breed’s own record is in order.
The City Controller’s payroll database shows that in the one-year period between FY 2018–2019 to FY 2019–2020 Breed eliminated 2,956 employees (from 27,329 down to 24,373) earning less than $100,000 in order to save her $38.1 million cut from the City payroll.
Across the same one-year period, Breed added 1,197 employees earning between $100,000 and $249,999 at an increased cost of $203.2 million, and also added an additional 135 employees paid over $250,000 at an additional cost of another $38.3 million. That was in her budget submissions, not Lee’s budgets.
On paper, it looks like the $38.1 million Breed saved by eliminating the 2,956 employees earning less than $100,000 was used to fund the $38.3 million awarded to the extra 135 employees earning over $250,000. Patronage cost-shifting never looked more transparent.
Where’s the Surgical Scalpel?
Breed’s message to her own employees was essentially “Let them eat cake.” They instantly understood she wasn’t watching their backs. She was watching her own backside, by doing the least amount of budget planning she could get away with. What she didn’t count on was that her own employees wouldn’t be so dumb by shooting themselves in the foot.
It’s clear Breed wanted to balance her budget on the backs of the City’s lowest-wage employees by demanding contracts be re-opened and all employees forgo scheduled raises. Luckily, the MEA seemed to have found its cojones. Instead of simply caving into her demands, the MEA sang Breed a sweet song: “Gee, Officer Krupke, Krup you!”
Instead of using an across-the-board budget cudgel that all employees forgo pay raises, Breed should have pulled out one of SFGH’s scalpel’s to surgically chop City salaries over $100,000 from the top, since those salaries seem to have metastasized during her watch. Maybe Director of Public Health Grant Colfax — wearing a face mask — could show Breed how to wield a scalpel, not a cudgel.
No layoffs! No wage cuts! And no furloughs.
An expanded version of this article with tabular data is available on the author’s web site at stopLHHdownsize.com.
Is Hiding Data an Effective Strategy Against the Virus?
COVID-19’s Cruel Visit to Laguna Honda
by Patrick Monette-Shaw
Four months into the pandemic, San Franciscans and Californians obtained little transparency from Mayor Breed or Governor Newsom, and even less accountability.
Both Breed and Newsom reversed course over the June 27 weekend, rolling back their premature re-opening plans. After all, neither of them has been transparent about COVID in nursing homes in the City and across the state.
Since COVID-19 surfaced four months ago SF’s Department of Public Health (SFDPH) refuses to report the number of infections among staff and patients in its 21 skilled nursing facilities (SNFs) on its website. That’s not transparency. It’s dereliction.
It’s not known why the data reported by each Skilled Nursing Facility directly to California Department of Public Health is considerably higher than the data reported to Center for Medicare and Medicaid Services, and whether the discrepancy is due to President Trump wanting CMS to “slow down” the testing and positive test results numbers nationwide. Nor is it known whether future reports to CMS will clear up the 5,410 disparity reported for California”
Similarly, California’s Department of Public Health (CDPH) refuses to accurately report the number of staff and patient infections in each of its 1,224 SNFs on its website. That’s not transparency either. SNFs are required to report each new COVID case within two hours. Promptly posting the full data — without “scrubbing” — should be relatively quick and easy.
Rather than aggregated data for each facility, CDPH obscures facility-level data by “de-identifying” cases — reporting only “<11” for facilities having fewer than 11 cases, claiming it does so to comply with the Health Insurance Portability and Accountability Act (HIPAA), the federal health privacy law. This is a pretext to avoid disclosing crucial data. Nothing in HIPAA prohibits releasing aggregate data that doesn’t include patient identifiers, so hiding behind HIPAA is bogus — there’s no way to identify patients from aggregated data.
COVID Visits San Francisco SNFs
While Mayor Breed announced on May 6 that San Francisco hadn’t flattened its COVID curve, data posted to the SFDPH’s COVID-19 Tracker website documented in the week ending May 9, 341 new positive cases, the highest weekly case total since March 7 when data collection began.
Mayor Breed knew that record was shattered in the week ending June 27 when weekly cases soared to 503, pushing total cumulative positive cases to 3,561, due, in part, to cases at Laguna Honda Hospital (LHH) that rose from 7 cases on March 26, to 29 cases on May 18, to 80 cases as of June 21, long after LHH prohibited visitors on March 6.
She also knew San Francisco had six additional COVID-related deaths during the 14-day period ending June 27 (over 10% of the City’s 50 deaths).
For Governor Newsom’s part, he knew that in the one-week period ending June 27, California reported an additional 35,567 cases — over 5,000 new cases each day and 406 additional COVID-related deaths statewide.
Finally, Newsom knew the Center for Medicare and Medicaid Services (CMS) reported an increase of 5,751 infections among staff and residents across California’s 1,224 nursing facilities in the five-week period ending June 21, pushing the statewide total to 14,527 infections in SNFs alone.
No wonder both Breed and Newsom reversed course on premature re-opening: The curve in the state hasn’t been “crushed,” let alone “flattened,” particularly not in SNFs and other congregate settings, like prisons.
Reviewing the timeline is instructive:
• It’s been four months — fully 124 days — since Mayor Breed issued her initial Statement of Local Emergency on February 25.
• As early as March 6, the City closed LHH to all visitors. Soon after, Health Officer Tomás Aragón prohibited non-essential visitors from all long-term care facilities within City limits.
• Over 100 days have passed since Breed’s shelter-in-place order on March 16, and since Newsom’s order on March 19. It’s 95 days six staff and one patient at LHH tested positive for COVID back on March 26.
• The next day, Breed wrote the U.S. Department of Health and Human Services begging for 110 federal employees to help “slow the spread of COVID-19 [and protect] our vulnerable skilled nursing residents.” (The feds sent only six federal doctors; her office claims she received no written response.)
• During April and May press briefings, she brought Dr. Grant Colfax, Director of DPH, to present updates and case counts at LHH. On May 1, news surfaced that DPH would conduct testing of staff and residents in all SNFs beginning on May 4 (it actually began at LHH May 6).
• On May 15, Dr. Colfax said cases at LHH rose from 7 (March 27) to 29 cases (18 staff / 11 residents). That was the last publicly released LHH’s case count. Breed’s press conferences essentially vanished.
• On June 2, DPH informed its Commission that testing in 17 of the 21 Skilled Nursing Facilities (SNFs) was complete.
• In response to a public record request for the number of COVID-positive patient tests uncovered in the completed 17 SNFs, and a list SNFs not yet completed, DPH had no: “responsive records at this time.” Tossing in — “We are committed to protecting the privacy and confidentiality of patients.”
CMS to the Rescue
Since last May, President Trump has successively claimed “If we didn’t do any testing, we would have very few [COVID] cases,” as if there would be no cases if there were no testing to detect new cases. As if!
Trump claimed in Tulsa on June 20, “When you do testing to that extent, you’re going to find more people; you’re going to find more cases. So, I said to my people, ‘Slow the testing down, please’.”
That was after Trump’s administration, on May 12 called for expanded testing of all nursing homes by the end of May.
Luckily, CMS came to the rescue, so we now have a modicum of facility-level data regarding infections in SNFs.
Despite Trump’s call for slowing down, his own CMS rolled out a new dashboard on its website reporting case counts for infections of both staff and nursing home residents in the 15,400 SNFs nationwide. All SNFs are now required to submit weekly update reports electronically to CMS.
Unfortunately, there’s an 11-day lag between reported data before CMS posts it. The data for the first week ending May 24 became available June 4. The latest data released on July 2 is worrisome.
CMS’ Nursing Home Data for California
Though SFDPH and CDPH chose not to release data for SNFs, data from CMS’ website became available.
It reveals that as of June 21, San Francisco’s 19 SNFs had 186 cases (104 staff / 82 residents), plus 18 deaths (all patients), up 26 cases since the week ending May 24, when there were 160 cases. Data for June 21 also reported 49 “suspected weekly COVID cases” (5 staff / 44 patients) that may convert to confirmed cases.
As for Laguna Honda, the data reveals (as of June 21), 80 cases (52 staff / 28 patients), up from 66 cases on May 24. The 52 staff cases at LHH represents 50% of the 104 staff infections across all 19 San Francisco SNFs. Data for June 21 also reported an additional 9 “suspected weekly COVID cases” at LHH (4 staff /5 patients).
The Mayor and the Health Commission knew these numbers as early as June 2 when SFDPH informed the Health Commission that 17 of San Francisco’s 21 SNFs had completed testing. (This may include two SNFs the City may utilize outside the City, whereas CMS only counts San Francisco’s 19 SNFs.)
CDPH and CMS’ Nursing Home Data Discrepancies
Comparing CDPH’s website to data posted on CMS’s new website revealed additional problems with the accuracy of the data.
The number of patient and staff deaths in SNFs statewide differ by 398 deaths (CMS reported a total of 1,991 staff and patient deaths in California SNFs through June 21, whereas data on CDPH’s website for June 21 reported 2,388 deaths).
Beyond deaths, the discrepancy of confirmed COVID positive infections reported by the two agencies differed remarkably.
CMS’s website reported 14,527 confirmed cases across California (6,089 staff /8,438 residents) as of June 21, but CDPH’s website reported a total of 19,937 confirmed cases (7,655 staff /12,282 patients) as of June 21, a difference of 5,410 total confirmed cases in California SNFs. It’s not known why the data reported by each SNF directly to CDPH is considerably higher than the data reported to CMS, and whether the discrepancy is due to President Trump wanting CMS to “slow down” the testing and positive test results numbers nationwide. Nor is it known whether future reports to CMS will clear up the 5,410 disparity reported for California.
Unfortunately, neither the CMS or CDPH websites include confirmed case counts or deaths that have occurred in Residential Care Facilities for the Elderly (RCFE’s) and other types of assisted living facilities; both of the two sites report data only for California SNFs.
California’s Department of Social Services (CDSS), which licenses RCFE’s in California, does post on-line separate data for COVID cases and deaths in RCFE’s and Adult Residential Facilities (ARF’s). Unfortunately, it doesn’t appear that there is a website that reports COVID infections and deaths in RCFE’s and ARF’s nationwide.
As of June 21, CDSS reported 2,969 confirmed COVID cases in RCFE’s and ARF’s, pushing the total from 19,937 (CDPH) confirmed cases (only) in SNFs to 22,906 confirmed COVID cases statewide.
Similarly, there were an additional 398 staff and patient deaths in RCFE’s and ARF’s, which pushed the death toll from 2,388 in (only) SNFs to a total of 2,786 deaths across the various types of elder care facilities statewide as of June 21.
The June 21 CMS data reported 1,566 suspected weekly cases in SNFs nationwide, including 49 suspected cases in 19 SNFs in San Francisco, and nine suspected cases at LHH.
Avoiding Transparency and Accountability
Adding to the dearth of transparency regarding infections in nursing homes across California, Mayor Breed has avoided accountability, failing to respond to multiple requests:
• No comment on having only 29 infections at LHH (18 staff / 11 residents) reported by Dr. Colfax on May 19, to 80 confirmed cases (52 staff / 28 residents) reported to CMS for the week ending June 21.
• No comment on the cases rising to 186 cases (104 staff / 82 residents) across all 19 SNFs in the City by June 21, given that Dr. Aragón ostensibly locked down SNFs to visitors two months earlier.
• CMS has reported 18 COVID-related deaths in San Francisco SNFs since the week ending May 24. Neither Breed, Colfax, nor Aragón have mentioned those 18 deaths (although DPH’s COVID-19 Tracker website does publish cumulative death data). Those 18 deaths represent 38% of San Francisco’s 48 COVID-related deaths as of June 21.
• No comment regarding COVID-19 Data Tracker deficit of information any of its sub-pages about cases and data in SNFs.
The devastation from COVID isn’t over. Not even close. Pausing the re-opening is justified, because the worst yet to come. Surely Breed and Newsom know this. Secrecy and misinformation from the highest levels of government have worsened the affects from COVID-19.
Forbes was right: The most important statistic is that well over 42% of COVID-related deaths in the U.S. have come from the 0.6% of the nation’s population living in nursing homes. None of these lives were “disposable” or “expendable.”
“How much worse will COVID-19’s cruelty in skilled nursing homes get before it gets better?” “Why can’t you produce truly transparent COVID-in-nursing-home data?”
A slightly expanded version of this article — containing a table showing data by facility name for each of San Francisco’s 19 SNFs — is available at stopLHHdownsize.com. A companion piece, written to be an historical summary of the first four months of the COVID pandemic nationwide and in California, is also available on the author’s website.
COVID-19’s Impact on Affordable Housing Production
Public Records Are “Essential” in a Pandemic
by Patrick Monette-Shaw
M ayor London Breed is to be congratulated for issuing her shelter-in-place (SIP) Order on March 13 hoping to contain spread of the COVID-19 virus and flatten the curve from the global pandemic, and its impact on San Franciscans. She did so before Governor Gavin Newsom issued a statewide SIP three days later.
... journalists and citizens know trade-offs need to be made, including restricting inspection of records at City Hall ... But suspending access to public records altogether, even temporarily, is clearly dangerous to open government. That’s why transparency is even more essential during states of emergency ....”
Hopefully, now that wider COVID-19 testing is belatedly beginning to occur in our City, her relatively early actions may sustain flattening of the curve.
But curiously, Breed’s SIP Order on March 13 raised some questions. That Order followed Breed’s declaration of a local emergency announcement on February 25. One question is why it took 17 days following the declaration of emergency before she issued her SIP order on March 13, particularly since she had issued an order closing Laguna Honda Hospital to visitors a week earlier on March 6.
Declaring a state of emergency is a procedural measure allowing a county to leverage state funds and mutual aid resources if cases of the virus are confirmed locally. The declaration of an emergency allowed San Francisco officials to secure emergency state and federal funding, and other resources and personnel, to accelerate emergency planning and expand capabilities for a rapid response.
Another question involves Santa Clara County, which issued its local emergency declaration on February 3 when its first two COVID-19 cases caused by international travel were initially reported. Why did it take Breed 22 days after Santa Clara had issued its emergency declaration before she issued San Francisco’s emergency declaration order? As our South Bay neighbor, weren’t the two counties coordinating on a regional basis with all nine Bay Area counties to simultaneously announce and implement uniform emergency declarations regionally?
Breed Clamps Down on Open Government
Breed’s antipathy to our local Sunshine Ordinance is well known, and dates back years to when she was president of the Board of Supervisors. On April 4, 2018 the Sunshine Ordinance Task Force ruled 7-to-0 that Breed had failed six times between 2015 and 2017 to respond to public records requests, and had failed to appear or send a representative on her behalf to 10 Sunshine Task Force hearings to explain why she had ignored responding to the records requests. The Task Force referred her failures to then District Attorney George Gascón for enforcement. (Predictably, Gascón took no action so Breed skated.) In addition, back in 2015 Breed initially voted as the lone dissenter on a Board of Supervisors vote on legislation requiring all City supervisors to publicly disclose their appointment calendars.
During an emergency, or a national public health crisis, journalists and citizens know trade-offs need to be made, including restricting inspection of records at City Hall and offices of other City agencies, and delays responding to records requests because of understaffing of government agencies. But suspending access to public records altogether, even temporarily, is clearly dangerous to open government. That’s why supporting government transparency is even more essential during states of emergency, to prevent long-term damage to our open government once the COVID-19 crisis eventually passes. (Unfortunately, it may be with us for a long, long time.)
Breed essentially has no patience for public records requests, following in the footsteps of her mentor, Wille Brown. Her record while on the Board reflects that she did not support open government.
Part of Breed’s March 13 Order temporarily suspended San Francisco Sunshine Ordinance §§67.25(a) and (b), the “Immediate Disclosure Request” provision in Sunshine that strengthened the California Public Records Act (CPRA) to provide for expedited release of public records. Ten days later, Breed issued a supplementary Order on March 23, further temporarily suspending Sunshine Ordinance §§67.21(a) and (b), which provide that members of the public can inspect or examine records in person at City offices open to the public, provided they comply with CPRA.
While it may be totally understandable that many City offices are closed during the COVID-19 pandemic because employees may be furloughed, are working and telecommuting from home, or assigned other duties as disaster service workers, suspension of portions of the Sunshine Ordinance is a matter of public concern. It’s also completely understandable that city agencies may have fewer resources to dedicate to public records requests, some city employees may be unfamiliar with particular records or may be physically separated from the records, and appropriate redactions may be harder to make due to employees working remotely.
What is not understandable is why Breed clamped down on our local Sunshine Ordinance, when Governor Newsom’s emergency orders did not waive responsibilities to respond to public records under CPRA. Breed shouldn’t have done so with San Francisco’s Sunshine Ordinance.
The City Attorney’s Office noted on March 30 that City agencies still have a legal duty provide public records promptly, have a legal duty to advise records requestors of the date on which an agency expects to actually produce requested records, and a duty to provide the records on a rolling basis. The City Attorney noted City agencies should make reasonable efforts to provide records to the extent feasible, and cannot adopt a blanket policy unnecessarily delaying or denying records requests carteblanche during Breed’s suspension of Sunshine.
The City Attorney’s “opinion” (which is an opinion, not a matter of settled law) gives the green light for City agencies to delay even starting to search for a given public record for a period of time, perhaps including not having to start a search for public records until after Breed’s temporary shelter-in-place order is lifted on May 3. But what happens if she extends her Order into June or July? Will that add even further delays in starting records searches?
Mayor’s Office of Housing and Community Development (MOHCD) Of grave concern, in response to a public records request about progress on the RFQ to select a developer for a senior housing project on the campus of Laguna Honda Hospital, the Mayor’s Office of Housing and Community Development (MOHCD) issued its “Emergency Policy on Sunshine [records requests]” on April 3, stating that it “may even be[come] necessary for MOHCD to delay the start of a search for records until [Breed’s] stay-at-home Order is lifted [in May].”
To a whistleblower, citizen watchdog, and columnist like me, that sounds like a dog whistle that MOHCD may end up implementing a blanket policy unnecessarily delaying or denying records requests carte blanche for any affordable housing projects currently being developed, in the pipeline, or under consideration.
After all, MOHCD is in the process of administering $1.2 billion in Affordable Housing Bond-funded projects (including the $310 million affordable housing bond passed in 2015, the $600 million affordable housing bond passed in 2019, plus the remaining $261 million from the PASS bond that was re-allocated to fund affordable housing).
Public records involving MOHCD’s stewardship of the affordable housing bonds should not be subject to having to wait for Breed’s stay-at-home order to be lifted before records searches even begin. How many other City departments have implemented, or are considering implementing, blanket policies to delay the start of searches for public records until Breed’s SIP Order is eventually lifted?
Advocacy Groups Support Transparency During COVID-19 Crisis
Obviously, openness in government is essential to the functioning of any democracy. California’s State Constitution stipulates in Article 1, Section 3(b)(1) “The 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.”
On March 20, over 130 organizations — including the California First Amendment Coalition, the Society of Professional Journalists, and the Electronic Frontier Foundation — signed a letter calling for custodians of public records at all levels of government to leverage technology resources to make governance more inclusive, more credible and more accessible, and not to suspend compliance with public records laws providing transparency and accountability. Another article notes that legitimacy of government decision-making requires a renewed commitment to transparency during emergencies, particularly public health emergencies, now more than ever.
Surely in the heart of Silicon Valley, we currently have the technology to make transparency happen.
After all, the City’s current state-of-the-art technology enables staff working from home to remotely access all of their e-mail records, and other computer files on departmental network drives, so long as their respective City departments have made the features available with network permissions. While I’m not a lawyer or a technology expert, I know from past employment with the City that costs to provide remote network access are either non-existent because they’re included in the City’s Microsoft Outlook basic configuration contract, or minimal additional cost for such things as VPN access or network “authentication” permissions, given that the City has a $12 billion annual budget.
For mission-essential City employees, the technology is already largely in place to increase government transparency. That technology needs to be expanded to all boards and commissions, not just City employees.
Essential City Boards and Commissions
Unfortunately, too many policy bodies that provide essential functions have suspended their meetings indefinitely. Among them are agencies involved in affordable housing production. It’s time for Breed to re-visit which City boards, commissions, and policy bodies are essential and should fully resume their operations using remote meeting access.
Citizens’ General Obligation Bond Oversight Committee (CGOBOC) Breed’s various Orders have restricted construction of commercial buildings, but allow affordable housing construction to continue as an “essential” service.
However, the Citizens’ General Obligation Bond Oversight Committee (CGOBOC) has been affected by Breed’s Orders. CGOBOC not only is monitoring oversight of the $1.2 billion in affordable housing bonds, it also provides oversight of public health and safety bonds, parks bonds, Earthquake Safety and Emergency Response (ESER) bonds, Road Repaving and Street Safety (RRSS) bonds, other transportation and road improvement bonds, and other bonds.
Each bond program will have all issuances in the same appearance on the CGOBOC agenda, e.g., all Parks bonds regardless of year issue are all heard together during a single CGOBC meeting, and all three Affordable Housing Bonds are presented during a single meeting.
CGOBOC currently meets only five times per year, with meetings typically restricted to two or three hours each. Formal reports and presentations on the status of each Bond are made only once annually. Each bond is updated verbally by the CGOBOC member assigned as a liaison to various City departments at the CGOBOC meeting nearest to six months from their formal presentation date.
CGOBOC’s January 2020 meeting crammed in including reports about multiple Parks bonds, the ESER bond, a liaison report on the public safety bonds, and the three Affordable Housing Bonds. Strangely, next to nothing was presented in January reporting on the $600 million Affordable Housing bond passed in November 2019.
Then, after Breed had issued her local emergency declaration on February 25 and her SIP order on March 13, CGOBOC cancelled its March 16 meeting, which was to have heard formal presentations on the RRSS bonds and transportation bonds, and the six-month liaison report on the Parks bonds.
CGOBOC’s next meeting is scheduled for May 18 to hear liaison reports on the ESER and Affordable Housing bonds — provided it isn’t cancelled, too. But at this point, it’s doubtful that City boards and agencies like CGOBOC will resume their public meetings just 15 days after the SIP order is scheduled to be lifted on May 3, and for all we know now Breed may choose to extend the SIP again. Anthony Fauci believes SIP orders should remain in place at least through the end of May, not May 3.
Breed should not end social distancing and reopen San Francisco’s economy until we know the infection rate is nearly zero. That means not just flattening the curve. It means crushing the curve completely. That’s not going to happen within 15 days from May 3. That suggests she needs to turn to rapidly expanding remote meeting access for policy bodies like CGOBOC and MOHCD.
Breed needs to make sure CGOBOC’s meetings continue to be held — remotely, if necessary — and ensure each CGOBOC member and relevant City departments are able to hold meetings remotely by beefing up their state-of-the-art technology and access to conduct meetings remotely. Their meetings, involving essential bond-funded infrastructure and housing construction, should not continue being cancelled until we have a vaccine against COVID-19, perhaps a year to 18 months from now. If the Board of Supervisors is using technology successfully to hold remote meetings, then all policy bodies dealing with essential City business should be equipped for remote meetings, too.
After all, on March 17, 2020 the Board of Supervisors authorized their full Board and Sub-Committee meetings to convene remotely and allow for remote public comment, pursuant to restrictions on videoconferencing and teleconferencing that have now been lifted. All City policy bodies and City Departments should immediately implement videoconferencing and teleconferencing.
Stalled LHH Housing Project
Anecdotal reports have surfaced that MOHCD has had trouble getting affordable housing funds out the door for at least three months, even before Breed issued her SIP Order. And one project, the proposed 280-unit housing project on Laguna Honda Hospital’s campus Supervisor Yee proposed as his legacy, has run into a different roadblock.
In December 2019 I published “LHH Housing Proposal Ignores Dire Shortage of Skilled Nursing Facility Beds,” exploring why Supervisor Yee’s housing proposal was so hush-hush, in which I reported MOHCD had released an RFQ on November 18, apparently prematurely since the property was not then, and is not now, under MOHCD’s jurisdiction.
The RFQ indicated a selection panel would hold interviews with prospective bidders during the week of February 17 or the week of February 24, and an announcement of the developer team chosen would be made during the week of March 9. Yee managed to stack the selection panel with two hand-picked District 7 neighbors. And an external consultant to the Department of Public Health, whose company is on track to receive $7.2 million for bond planning services through the year 2023, Mark Primeau, appears to have also been added to the selection panel, replacing an actual DPH employee.
On March 10, MOHCD responded to a records request saying the selection process had been delayed until March 30, 2020, ostensibly because MOHCD needed additional time to organize the interview and review panel. MOHCD’s March 10 response was ridiculous on its face because a source who requested anonymity independently confirmed subsequently that the interviews with potential developers were, in fact, completed during the week of March 9, albeit two weeks later than the planned week of February 17 interview schedule initially announced.
Since then, even though the interviews were completed and the selection panels’ bidder scoring sheets were reportedly provided to MOHCD, MOHCD’s staff have dragged their feet for over a month, and have apparently not completed review of the external selection panelists’ interviews.
Does that mean the announcement of the developer chosen is being held hostage until Breed eventually lifts her SIP Order? If MOHCD staff do not have access to either videoconferencing and teleconferencing capabilities, or network permissions to remotely access all of their e-mail records and other computer files on departmental network drives, they should be provided with such technology immediately. After all, if Yee’s housing proposal for LHH’s campus proved not to be financially viable during or following the developer interviews, then MOHCD should move along and select another senior housing project elsewhere in the City.
COVID-19 We may have to prepare to go through a similar COVID-19, or a COVID-20, resurgence in the fall perhaps with more shelter-in-place orders, and perhaps further restrictions on physical (social) distancing and public meetings. We can’t allow funding and development of affordable housing to face further delays. As much as the public records are essential during this pandemic, so too are affordable housing units essential.
In future articles, I’ll explain why I have thought all along that placing this housing on LHH’s campus was terribly misguided from the beginning. But shut down of access to essential public records remains worrisome.
“It’s a Newspaper’s Duty to Print the News and Raise Hell”
A Civic Duty: Digitize Neighborhood News
by Patrick Monette-Shaw
The deckhead for this article is a Wilbur Storey quote 159 years ago in an 1861 article in the then-Chicago Times. Back then, newspapers and journalists were unafraid of taking on the “Establishment” and raising some hell. It’s a sentiment widely held by those of us who’ve been privileged to publish in the Westside Observer over the years, and with which I strongly agree.
As the Observer migrates to an on-line-only news outlet printing the real news, please continue to support us as we start our new journey in raising hell.
The City’s mainstream media are not covering the real news of our hyper-local neighborhood communities, and in particular are not covering neighborhood and local news in granular detail as we do here at the Westside Observer.
Indeed, 50 years ago Time Magazine published an article1 in November 1970 noting large-circulation mainstream newspapers tend to be part of the Establishment, and, therefore, part of the problem. The Time article reported “San Francisco’s Examiner and Chronicle, for instance, are so comfortably settled that the … City has become one of the worst-newspapered cities in America.”
The Westside Observer has been a leading source of neighborhood news on the west side of San Francisco for the past 12 years, and even before it took over the West of Twin Peaks Observer.”
Time went on to praise Bruce Brugmann, publisher of the former San Francisco Bay Guardian Weekly, for improving the state of journalism in San Francisco.
During the past 50 years, the Examiner has gotten somewhat better after it added reporters Joe Fitzgerald Rodriquez, Laura Waxman, Joshua Sabatini, and others. But the Chronicle continues to omit covering local news in-depth, when not altogether, and buries local news often in the back pages of its paper. That leaves us still being one of the worst-newspapered cities!
Because the mainstream media ignores the problem of inadequate local news coverage, it’s left to our local neighborhood newspapers to flesh out details of local news.
As citizen-journalists, Observer columnists share a sense of duty to dissent by researching news that affects our neighborhoods, and to build opposition to City policies where needed. We’re here as an antidote to flesh out and publish news and raise hell! And we’re intent on evolving with the times.
The Westside Observer has been a leading source of neighborhood news on the west side of San Francisco for the past 12 years, and even before it took over the West of Twin Peaks Observer. In 2008, the San Francisco Neighborhood Newspaper Association had 20 local monthlies in the City. But with the recent news the Observer is ending its print edition, there will now be only eight neighborhood monthly newspapers in print in the entire City. Like other neighborhood papers, the Observer is expanding its former web site into an on-line-only publication.
The Observer grew into the best damn newspaper in town with great leadership from its publishers and a stable of contributing authors covering the entire spectrum of topics — from neighborhood issues not covered at all by our local daily newspapers to in-depth reporting, analyses, and commentary on citywide issues also not covered in any meaningful way by the mainstream media.
Our columnists are largely engaged citizens who routinely place public records requests to uncover details of stories the mainstream media neglect to research.
I’ve reflected on how I got here.
On a cool, slightly-cloudy 52-degree morning, I trudged up the 100-step staircase for my first day of employment at Laguna Honda Hospital (LHH) on May 17, 1999. I had no idea how my life would suddenly change.
I fretted the whole way up about whether I’d survive a six- to twelve-month probationary period, because I had been a very vocal “accountability” critic of the then-director of Public Health, Dr. Mitch Katz, and the San Francisco AIDS Foundation. So, I fretted about the potential for political payback, hoping I could last long enough to pass probation.
I published “The Fleecing of AIDS in America: Part 1 — San Francisco AIDS Foundation’s Unfair Distribution of AIDS Walk Funds” on July 15, 2001 after having stopped fretting about passing probation.
On July 20, 2003 I launched my first public website — TheLastWatch.com — dedicated to exposing accountability problems with “AIDS Inc.” By then I was no longer afraid of Katz, or then-Mayor Willie Brown. On October 1, 2004 I launched stopLHHdownsize.com to try to prevent eliminating one-third — 420 — of the 1,200 beds planned for the LHH replacement hospital.
In November 2004 I filed my first San Francisco Superior Court lawsuit against the City involving the downsizing of LHH, with pro bono representation from public-interest public-health ace lawyer Lynn Carman. The lawsuit sought to require the City use all of the Tobacco Settlement Revenues (TSR) to offset the LHH replacement project cost overruns, and sought to recover $25 million misappropriated from the TSR account earmarked to rebuild LHH.
In February 2008, I filed a second San Francisco Superior Court lawsuit against the City involving the Chambers Settlement agreement, again represented by Mr. Carman. The lawsuit sought to stop the Chambers Settlement mandate to eliminate 420 beds from the 1,200-bed rebuild project. I lost both public-interest lawsuits.
Also in February 2008, the Westside Observer published my first article “Downsizing Laguna Honda: Who Gets the Boot” which focused on reducing LHH to just 780 beds, and which patients would be forced out, perhaps out-of-county.
In March 2012, I received a James Madison Freedom of Information Award in the Advocacy category from the Society of Professional Journalists–NorCal Chapter for my articles in the Westside Observer as an advocate for LHH’s patients.
In January 2019 SPJ-NorCal awarded the Westside Observer the James Madison award in the Community News Media category, indicating the Observer “stands out among San Francisco’s neighborhood newspapers for fostering citizen journalism based on public records disclosures that shed light on city government and promote community engagement.”
Please bear with a slight digression: While employed at LHH I audited a UC Berkeley Extension course in writing after hours, where I stumbled across a seminal September 1997 essay written by Wendy Kaminer in The Atlantic, titled “A Civic Duty to Annoy.” Kaminer was then a contributing editor of The Atlantic, a public-policy fellow at Radcliffe College, and president of the National Coalition Against Censorship.
A Civic Duty to Annoy instantly became my all-time favorite essay. Kaminer’s premise was not that we have a civic duty to annoy others just for the sake of aimlessly annoying them. Instead her premise was that communities are not composed solely of people who share a single monolithic point of view, and never engage in conflict. She argued communities are built on compromise, compromise presupposes disagreement, tolerance presupposes the existence of people and ideas we might not like, and one test of tolerance is provocation.
Read her essay. You’ll understand why Kaminer concluded the piece writing “When you sit down to dinner with your disagreeable relations, or comrades who bask in their rectitude and compassion, you have a civic duty to annoy them” — to provoke them to think, to challenge their assumptions and beliefs, and to re-examine their premises.
I had no idea the Observer would continue to publish me for the past dozen years. I’m grateful to Mitch and Alice Bull, and Doug Comstock, in addition to my fellow Westside Observer columnists from whom I’ve learned so much, including Doctors Derek Kerr, Maria Rivero and Theresa Palmer who were also my co-workers at LHH, George Wooding, John Farrell, Glenn Rogers, Nancy Wuerfel, Kathy Howard, Lou Barberini, and Steve Lawrence, among many other Observer feature writers.
If you want award-winning news for the neighborhood and the whole City, follow us in our transition to an on-line-only publication. Please join us as we continue to digitize the news, raise hell, and provoke debate. We promise not to disappoint!
Proposed Laguna Honda Housing Ignores Dire Shortage of Skilled Nursing Beds
by Patrick Monette-Shaw
Thirteen days after San Francisco voters passed the $600 million Affordable Housing Bond on November 5, and also approved allowing construction of 100% affordable housing and teacher housing projects on public land zoned “P, Public” that previously barred residential housing on public parcels, the Mayor’s Office of Housing and Community Development released a Request for Proposal (RFP) to build housing on Laguna Honda Hospital’s (LHH) campus on November 18. Neither the Health Commission nor the Board of Supervisors held public hearings before the RFP was issued.
Project Proposal The RFP claims the project will include everything but the kitchen sink, including an unspecified number of independent senior housing rental units in studio and one-bedroom apartments restricted to those earning 30% to 80% of Area Median Income ($25,850 to $68,950 for a one-person household). Another portion of the project calls for an unspecified number of assisted living units, and an unspecified number of Residential Care Facility for the Elderly (RCFE) units, which are similar but a different kind of facility, collectively referred to as the “Assisted Living” component of the project.
... the City has dumped at least 1,659 San Franciscans into out-of-county facilities between July 2006 and June 2019 ... Despite having been asked repeatedly to sponsor legislation requiring all facilities report their number of out-of-county discharges annually, Yee has failed doing so.”
The Illusive Assisted Living Component The assisted living component hinges on a future “financial feasibility study” MOHCD hasn’t conducted. Worrisome, MOHCD, at its sole discretion, may elect to make the Assisted Living component a separate project under a separate RFP to ensure creating a financially viable sub-project. It may vanish if not viable financially.
The project also calls for an early childhood education center, and an Adult Day Health Center (ADHC) for an unspecified number of adults needing day care.
Where’s the Site? MOHCD claims the project will be built on an “unbuilt lot” adjacent to the two new patient towers of the LHH replacement hospital.
The San Francisco Examiner reported November 21 city officials “envision” at least 200 units will be built. It’s unclear whether the 200 units are for the entire project, or just for the independent rental housing component of the project.
Approval Uncertain MOHCD is proposing to transfer the undeveloped lot site, subject to final approval by the Board of Supervisors and the Health Commission, to a qualified developer through a long-term ground lease. A prominent West Side leader who has attended multiple pre-planning sessions with Supervisor Norman Yee and his staff believes the project will be awarded two-thirds ($100 million) of the $150 million portion of the Affordable Housing Bond earmarked for senior housing.
This suggests the earmarked senior housing funds may largely benefit a single Supervisorial District, Supervisor Yee’s.
Major problems with the proposal.
First, the “undeveloped site” is a northeast spot on the Laguna Honda Hospital (LHH) campus that went undeveloped when 420 of the Skilled Nursing Facility (SNF) beds were eliminated from the planned hospital rebuild in 2010 after cost overruns soared to nearly $200 million.
In February 2016 the Health Commission documented San Francisco had lost 1,163 hospital-based and freestanding SNF beds between 2001 and 2015, a 52.3% decline in SNF beds.
The report also documented San Francisco faces a 1,745-bed SNF gap between supply and demand within 14 years, by 2030, in part because 192,000 San Franciscans aged 65 and older will comprise 20% of San Francisco’s population by 2030.
Second, the City has dumped at least 1,659 San Franciscans into out-of-county facilities between July 2006 and June 2019 from our two public hospitals and two of the six private-sector hospitals, in large part because of the severe shortage of in-county SNF beds. Despite having been asked repeatedly to sponsor legislation requiring all facilities report their number of out-of-county discharges annually, Yee has failed doing so.
The report also documented San Francisco faces a 1,745-bed Skilled Nursing Facility gap between supply and demand within 14 years, by 2030, in part because 192,000 San Franciscans aged 65 and older will comprise 20% of San Francisco’s population by 2030.”
Third, the proposed site is extremely far away from the Forest Hill MUNI station, making use of public transportation extremely difficult, given that the slope of LHH’s campus hills are prohibitively steep for elderly people to walk up, or down.
Fourth, there are virtually zero nearby neighborhood amenities — like grocery stores, restaurants, and pharmacies — within walking distance of the proposed site.
Fifth, prioritizing space for a childhood pre-school over space for SNF or Residential Care Facilities for the Elderly (RCFE) beds, or senior housing, is simply obscene. Seniors do not find “purpose,” as Yee alleges, babysitting three- and four-year-old barely-verbal preschoolers.
Sixth, LHH eliminated its long-existing Adult Day Health Care (ADHC) from the rebuild project, which should have been included in the replacement hospital.
Finally, the proposed site should be reserved for additional SNF beds, to capitalize on economies of scale and ready access to LHH’s existing medical services like the physical therapy and occupational therapy gyms, therapeutic swimming pool, nutrition services that provide meals to patients, and the hospital’s cafeteria, among others.
Yee’s Problem Yee may want a legacy of building more housing for the elderly, but he’ll forfeit a legacy of addressing the dire shortage of SNF beds.
Yes, there’s dire need for more senior housing and RCFE facilities. But failing to address the also-dire shortage of medical-based SNF beds may kill us all, or exile us out of county.
It’s time to stop pitting the need for additional SNF beds against the need for senior housing and RCFE beds. We desperately need more SNF beds on that “vacant” spot of land.
Here we are six months after first learning from Mayor London Breed about the outrageous abuse of 23 to 130 patients at Laguna Honda Hospital (LHH) dating back to 2016. We’re no closer to getting answers about key questions because the scandal remains shrouded in secrecy as an on-going State investigation.
On October 23, LHH’s leadership was finally fingered as primary contributor to the patient abuse and failure to report the abuse.
What’s the Police Department — specifically its Special Victims Unit — doing? Why hasn’t the State Attorney General’s Elder Abuse Unit filed charges against the perpetrators? And why hasn’t CDPH denounced the abuse and publicly released its findings?”
Fines Imposed On September 3, the federal Centers for Medicare and Medicaid Services (CMS) imposed a $1 million fine against LHH for the 156 days between February 6 and July 11, 2019 during which patient’s health and safety were in immediate jeopardy. Since 2007, LHH has been fined at least $1.35 million, but has only had to pay $966,295 because it received some 35% discounts by waiving its rights and not contesting the determinations and fines. The fines are expected to soar significantly higher.
The accompanying chart shows LHH received five major sub-standard care deficiencies in the California Department of Public Health (CDPH) July 12, 2019 survey, including the worst “L” finding, and received five additional lesser deficiencies during CDPH’s September 3 resurvey.
City Attempts to Protect Officials Even before Breed’s June press conference, LHH CEO Mivic Hirose was forced to step down, and LHH’s Director of Quality Management was removed. The City tried to block release of the director’s name claiming it was a “personnel matter,” but public records and a Google search easily revealed the name of the director — Regina Gomez, RN.
The two leaders were pushed out even before CDPH released its 61-page investigation July 12 survey report. The report revealed Hirose and Gomez were interviewed by CDPH investigators three times between May 29 and June 19 in the presence of a Deputy City Attorney and LHH’s Director of Nursing (DON). A Google search and public records revealed the DON was Madonna Valencia, RN.
Hirose, Gomez, and Valencia were also interviewed individually between May 29 and June 5. But Valencia wasn’t pushed out until October 7. What else surfaced to force her out three months after Hirose and Valencia were ousted?
On October 23, 2019 CMS rolled out a new abuse icon on its Nursing Home Compare website to alert the public about nursing homes cited for abuse violations. LHH’s CMS rating was promptly slapped with the red-hand “stop” icon.
During a Government Audit and Oversight (GAO) hearing on October 23, Supervisor Norman Yee asked whether LHH’s leadership had either ignored, or didn’t know about, the patient abuse scandal. Acting LHH CEO Margaret Rykowski responded, saying:
“[SFDPH’s] review … did identify deficits in executive- and management-level positions as a primary contributor … that allowed cases of abuse … to occur, perpetuate, go unreported, and be improperly investigated over extended periods of time. We’ve made initial steps [changing LHH’s] executive leadership, and will continue to make more, as needed.” Which “deficits” weren’t stated.
Some observers wonder whether the patient abuse went unreported to CDPH because LHH was then under a two-year period during which it could lose its license completely if it received a second “Class AA” citation from CDPH. “Class AA” fines are levied if abuse or neglect were a proximate cause of a patient death. LHH had received a “Class AA” citation and a $100,000 fine on December 23, 2016. As early as November 2, 2017 — within the first year — one of the five patients who had been drugged tested positive for Methadone he hadn’t been prescribed. He was drugged eight additional times with different opioids through August 2018. He died on September 2, 2018 while the two-year rule was still in effect. It’s probable LHH may receive another “Class AA” citation for his death.
Pensions, Penalties Pending? During the same GAO hearing, Supervisor Aaron Peskin asked whether it is true the terms of separation of the six nursing assistants apparently fired by May 6 include “the fact they can no longer access pensions.” As of November 22, that question hasn’t been answered, but should the three LHH leaders forced out also lose access to their fat City pensions?
Peskin also asked whether the City Attorney could sue the perpetrators for civil monetary penalties to help recover the City’s fines. Should the City Attorney should also sue the three LHH leaders for their failure to report the abuse to the State?
Many key questions remain. The California Advocates for Nursing Home Reform asked on September 11: What’s being done to bring the perpetrators to justice? What’s the Police Department — specifically its Special Victims Unit — doing? Why hasn’t the State Attorney General’s Elder Abuse Unit filed charges against the perpetrators? And why hasn’t CDPH denounced the abuse and publicly released its findings?
After all, the drugging of patients with unprescribed opioids was first detected and reported to LHH’s Medical Director, Dr. Michael Mcshane, as early as February 26, 2018 by doctors at other hospitals where five patients had been transported with life-threatening conditions, including respiratory arrest. Mcshane replied the same day that an internal investigation was underway at LHH. Did Mcshane ever conclude that internal investigation?
Culture of Silence In his November Westside Observer article, former LHH physician, Dr. Derek Kerr — wrongfully terminated in June 2010 in retaliation for whistleblowing — asked what had happened with investigations by LHH’s physician-run Medical Quality Improvement Committee and its Performance Improvement and Patient Safety Committee, since both committees have offered only silence. That mirrors LHH’s pandemic culture of silence.
Personally, I wonder why the San Francisco District Attorney’s Office hasn’t announced criminal charges in this scandal?
Oversight? A key part of DPH’s leadership problems extends to Health Commissioners Dr. Edward Chow and Dr. David Sanchez who have served as Commissioners for 30 years and 22 years, respectively. Both men served repeatedly on the Commission’s LHH Joint Conference Committee that is charged, in part, with receiving LHH’s Quality Management reports.
Hirose, Gomez, Valencia, Chow, and Sanchez all had to have known the December 2016 “Class AA” citation’s two-year period hadn’t ended. Is that why the patient abuse wasn’t reported to the State?
On November 19, CDPH responded to a records request saying “CDPH cannot comment on an ongoing investigation.” Why has CDPH’s investigation dragged on from at least May 29 to November 19 without conclusion? Stay tuned.
A greatly expanded version of this article with significant details is available at stopLHHdownsize.com.
Monette-Shaw operates stopLHHdownsize.com. Contact him at email@example.com.
Multiple Efficacy Problems Questioned
Invisible Successes Navigating the Homeless
by Patrick Monette-Shaw
When it comes to solving the City’s multiple homelessness-related problems, San Franciscans desperately want the Emperor’s New Clothes to cover backsides of City officials, not “invisible successes” waltzing around exposing their rear ends.
Department of Homelessness and Supportive Housing (HSH) director Jeff Kositsky blurted that the Homeless Outreach Team’s (HOT) successes are invisible during a September 18 Board of Supervisors hearing to extend the HOT contract for two years at a cost of $15 million. Despite concerns about the HOT program’s effectiveness and efficacy, the full Board approved the contract extension.
Kositsky’s invisible successes may extend to the efficacy of additional homelessness services provided by HSH, including the contentious Navigation Centers and the dubious Healthy Streets Operations Center (HSOC).
The SFPD data didn’t include Part II crimes that are charged as either felonies or misdemeanors, including assault-and-battery, sexual battery, vandalism, weapons offenses, and drug abuse violations, among other crimes.”
Many Problems With Navigation Centers
San Francisco’s population is estimated to now be 897,166 and our 2019 homeless count stands at 9,700, representing just 1% of City residents. The San Francisco Examiner reported October 5, 2019 Mayor London Breed is merely covering up the homeless by “pushing them from one neighborhood to another in a fruitless game of whack-a-mole.”
In March 2018 the Westside Observer published an article reporting on a mayoral debate before the June 2018 special election. Mayoral candidate Angela Alioto noted “Navigation Centers are also dead-ends, good for 120 days, then back out on the street.” Alioto was overly optimistic about 120-day length-of-stays.
In October 2019, the Westside Observer published a terrific article by Lou Barberini. He noted both Mayor Breed and Kositsky issued identical public statements, wrongly claiming: “In general, we know the data shows there is no link between the creation of a Navigation Center and an increase in crime in the surrounding area.”
Barberini reported Breed and Kositsky relied on data compiled from SFPD’s Crime Data Warehouse. Barberini noted SFPD’s data included only four Navigation Centers, and excluded crime data regarding a fifth Navigation Center at Civic Center, a known high-crime area.
The “in general” nonsense is worse than Barberini reported. SFPD also failed to analyze before-and-after crime data for a sixth Navigation Center at 1950 Mission in another high-crime area, which closed in 2018. Worse, data provided to Breed only included eight FBI Uniform Crime Reporting Part I crimes, typically charged as felonies.
The SFPD data didn’t include Part II crimes that are charged as either felonies or misdemeanors, including assault-and-battery, sexual battery, vandalism, weap ons offenses, and drug abuse violations, among other crimes.
You can’t arrive at “in general” guesswork by omitting analyzing two of the six Navigation Centers, and omit analyzing Part II crime data. Were Breed and Kositsky trying to fool Embarcadero-area neighborhoods?
In their rush to proclaim no correlation between placement of Navigation Centers and crime rates, Breed and Kositsky ignored obtaining data from another source: 9–1–1 call center data from five Navigation Centers.
Data 9–1–1 supplied revealed 786 initial calls for service were placed from five Navigation Centers during the periods they have been operating. Fully 456 (58%) of the calls were related to clients experiencing medical issues.
Significantly, 219 (28%) of the 786 calls were related to criminal activity, of which 51 (23.3% of 219) calls involved assault-and-battery, an FBI Part II offense. Fights, verbal threats against staff or other, and people with weapons categories accounted for 87 (40.2%) of the 219 calls. A whopping 71 (32.4% of 219) calls involved trespassers, something undoubtably of interest to Embarcadero neighbors. Fully 116 (53% of 219) calls were placed from the Civic Center Navigation Center.
The 9–1–1 call center data goes a long way towards disproving the false “in general” assertion there’s no correlation between placement of Navigation Centers and increased crime.
The expanded version of this article explores another source of data shedding some light on correlation to increased crime rates: Critical Incident Report forms each Navigation Center is required to submit to multiple Kositsky employees.
High Costs of Navigation Centers
The high costs associated with Navigation Centers isn’t fully known. It’s approaching at least $101 million, with costs expected to rise as one “temporary” Center closes and replacement temporary Centers are constructed.
The accompanying table shows costs involved with seven Navigation Centers.
• $38.8 million has been spent between capital construction expenses and costs to lease sites. How much more will it cost to open additional Navigation Centers in every supervisorial district, and replace temporary Centers closed? • The $61.5 million in costs to operate the Navigation Centers will climb significantly when Kositsky awards a contract to operate the Embarcadero Navigation Center.
Kositsky’s staff eventually coughed up an explanation of the initial time-limited Navigation Center lengths of stays. Homeward Bound clients being sent back to other jurisdictions receive one- to three-day stays. Homeless individuals referred by HSOC partner organizations can stay for up to seven days. Other homeless individuals referred by Kositsky’s outreach staff can stay for up to 30 days, and can receive a one-time 30-day extension in certain circumstances. Homeless people having a priority status in Coordinated Entry or HSH Outreach programs can stay until they gain housing in permanent supportive housing.
This is part and parcel of the whack-a-mole problem, and nowhere near close to Ms. Alioto’s optimism of 120-day stays. Breed’s focus on forcing the homeless into 30-day and 7-day Navigation Center stays is not a sustainable substitute for real solutions to house the homeless.
The HSOC was created and activated on January 16, 2018 to coordinate efforts among City departments.
During a June 13, 2019 Budget and Finance Committee hearing, chairperson Sandra Lee Fewer noted: “Police officers [at] the Richmond [District Police] Station are saying ‘Yeah, officers get pulled for HSOC, and they don’t replace them. We’re short officers at district stations.’ [Whenever] HSOC or anyone comes in and does a sweep, we’re just seeing more homelessness, moving it around. … [Pulling] officers from [District] stations and outlying stations is a problem.”
Fewer said a mouthful on June 13! She said a second mouthful on June 21 when she chaired another Budget and Finance Committee hearing focused on staffing of the HSOC, saying: “I’m hearing from my own [Richmond] District [police] officers that, yeah, they get pulled off [their regular job duties] to go to the HSOC.”
One source, speaking on condition of anonymity, reported that one District police station is so shorthanded a lieutenant recently instructed a group of officers during lineup before starting their shifts “not to arrest anyone,” because the Station didn’t have enough cops to manage the District if two officers got tied up processing an arrest. Is Supervisor Fewer aware this is how bad the situation has gotten?
Is this a new “get-out-of-jail-free” card: “We don’t have enough officers to process your arrest because they’re deployed to the HSOC, so we’re not going to arrest you”? That essentially turns the concept of “nobody is above the law” on its head.
The HSOC’s efficacy was also called into question June 21.
• Supervisor Fewer repeatedly asked, but was unable to obtain an answer, about the total number of FTE’s (full-time-equivalent employees) the HSOC has, because the Board of Supervisors hasn’t seen the HSOC’s entire budget.
• Fewer asked Kositsky what impact the HSOC is having on the homeless population and whether HSOC is just duplicating efforts by the HOT team. Kositsky lamely responded the HSOC is intended to coordinate efforts across multiple City departments. • Supervisor Hillary Ronen peppered Kositsky with questions, fretting: I’m not sure it makes sense to continue to add additional staff to [the HSOC], because I’m not sure it’s having the intended impact.”
Kositsky responded saying they were having a hard time because staff were being swapped in and out of the HSOC, so “we’re struggling to capture data, because we don’t have any full-time staff [at the HSOC].” Kositsky stated to Supervisor Norman Yee that “our budget request is primarily to improve data collection.” Homeless people need actual housing, not better data collection. • Fewer concluded the June 21 hearing noting: “We just gave a nod to $4 million worth of new FTE’s to HSOC but I haven’t seen a [single] metric on impact and what [HSOC] has been doing, how well it’s been operating, and how many [employees] there are in HSOC.” She added: “There is much more that we need to know about the efficacy” of the HSOC.
A City Controller’s report on the HSOC noted that of referrals submitted by SFPD homeless outreach officers to the HSOC, “At present, there is no means to track how many HSOC referrals result in linkage to care.” Another “invisible success”?
The Controller reported the HSOC was activated in January 2018 as a working group to implement a combination of collaborative efforts across multiple departments using existing staff, not as a budgeted sub-unit cost center in any City department.
That changed in the FY 19–20 budget process. During Budget and Finance Committee hearings in June, 11 new budgeted positions to support the HSOC costing $4 million were approved and added to departmental budgets starting on October 1, 2019. Supervisor Fewer, clearly exasperated at times, couldn’t get a straight answer about how many police officers are assigned to the HSOC. Police Chief Bill Scott eventually indicated 40 police officers are detailed to the HSOC.
Still unanswered is how much it costs (in dollars and employees) to temporarily divert 40 police officers to the HSOC.
No Bang for the Bucks Efficacy
Expenditures on invisible successes from questionable efficacy of the HOT Teams, the HSOC, and the Navigation Centers are probably not going to save the tourism industry, or bring the American Medical Association back. Nor will it help solve San Francisco’s homelessness problems in providing the homeless stable housing.
The expanded version of this article at stopLHHdownsize.com includes additional data and discussion, including data obtained from “Critical Incident Reports” that each Navigation Center is required to submit to Kositsky’s Department of Homelessness.
California cities have long been in a protracted war with the State over who should control housing decisions. Local control over housing and land-use policies were at risk, which the State sought to usurp.
Why would San Francisco seek to usurp hyperlocal (at the neighborhood level) input into local land-use policies? That’s essentially what Prop E — to re-zone public land (except parks) citywide in San Francisco — on the November ballot seeks to do. Prop E makes things worse, stripping out neighborhood input into local processes. It screams: “We don’t want neighborhood input.”
Sadly, two bills — AB-1487 (Assemblyman David Chiu) and AB-1486 (Assemblyman Phil Ting) — each contain provisions to allow privatization and appropriation of regional public lands. Both bills are sitting on Governor Gavin Newsom’s desk awaiting his signature.”
As the Westside Observerreported in July 2019, news surfaced June 19 that the Elections Department had received two dueling ballot measures to re-zone San Francisco’s public lands: One submitted by Mayor Breed, and the second submitted by four Supervisors (Supervisors Peskin, Fewer, Walton, and Haney).
Both proposed measures reeked of State Senator Scott Wiener’s various legislation designed to strip and override local planning rules by fiat, eliminating local control, like Wiener’s misguided SB-50 attempt to rezone the entire state. Sadly, two bills — AB-1487 (Assemblyman David Chiu) and AB-1486 (Assemblyman Phil Ting) — each contain provisions to allow privatization and appropriation of regional public lands. Both bills are sitting on Governor Gavin Newsom’s desk awaiting his signature.
Developers covet acquiring public land because it provides the private affordable housing industry opportunities for massive financial gain.
No public hearings were held prior to placing either of the dueling measures on the San Francisco ballot. After the Board of Supervisors blocked Breed’s separate Charter change ballot measure on July 11, she was forced to negotiate with the Board. Breed eventually backed down and withdrew her re-zoning Ordinance, leaving the re-zoning Ordinance proposed by four Supervisors on the ballot — now designated as Prop E — but without enough time to work out a compromise to the final ballot language before going to voters.
Clearly, San Francisco neighborhoods need better means for controlling land use, not just adding more housing, and each neighborhood should have input in controlling land-use decisions regarding public land in their own neighborhoods!
Prop. “E’s” Origins
Mayor Breed initially claimed to rationalize placing her citywide re-zoning measure on the ballot, only because it had taken over two years to re-zone the Francis Scott Key Annex on public property to allow building a teacher housing project. Breed ignored the fact that the project was delayed principally because design wasn’t yet completed and wasn’t awarded City funding before July 30, 2019. Breed’s pretext was laughable.
We debunked Breed’s baseless and untruthful claim in the Westside Observer. In July we reported that re-zoning — even if zoning changes take 6 to 12 months — occurs during Environmental Review while the developer works simultaneously on detailed design, permitting, and financing that can take up to 24 months. Eliminating re-zoning will not shorten the 24-month concurrent processes.
In our September article, even Supervisor Shamann Walton (D-10) noted on July 11, 2019 that the Annex should have been re-zoned “a couple of years ago.” Walton added, “We should not be giving away publicly owned land for market rate developments calling it affordable teacher housing.”
The Board promised trailing legislation would be written to reconcile differences between the two dueling measures. Now at the end of September, no trailing legislation has been presented during Board of Supervisors hearings. Adding to the insult that no public hearings were held beforehand, voters will also likely not see the trailing legislation before voting on Prop E.
Still unclear is whether developers will be given public land at no cost, whether they’ll purchase land outright at market-rates (income to the City), or if they’ll get long-term leases of the land. The ballot measure contains no discussion of whether developers will acquire public lands through fee simple sale, long-term ground lease, or prices below market-rate appraisal value. That issue wasn’t even included in the ballot measure, and a City Hall source thinks the issue won’t be clarified in the trailing legislation, either
It’s also unclear if the re-zoning measure will eliminate full CEQA review on each project, or whether the CEQA reviews will remain on a case-by-case basis. That likely also won’t be addressed in the trailing legislation, which may focus only on a peripheral issue involving 50% pass-through to tenants.
Prop E could deprive your ability and rights to improve projects through local jurisdiction appeal process hearings and may eliminate the Planning Commission’s discretionary review process to alter, change, or disapprove re-zoning of each parcel zoned “P – Public.”
Alphanumeric State Soup
Seven recent State legislative bills aim at eliminating local control over land-use and housing decisions. Two are discussed here briefly:
AB-1487, San Francisco Bay Area Housing Development Financing, Assemblymember David Chiu, Assembly District 17, co-authored by Senator Wiener. AB-1487 would allow for Bay Area regional ballot measures to raise money for affordable housing, perhaps through a parcel tax, gross receipts tax, employee head tax, commercial linkage fees, and bonds, or a combination of the sources.
Zelda Bronstein published a terrific article exploring AB-1487. I highly recommend reading her in-depth article. She noted pro-growth advocates view the bill as an opportunity to “facilitate the private appropriation and exploitation of the region’s public lands.”
Bronstein uncovered documents that show in early December 2018 the MTC and San Francisco Foundation helped fund a secret 42-person delegate, three-day junket to New York City, including Assemblyman Chiu and Chiu’s then-Chief of Staff, Judson True. The trip claimed to be “a learning session on New York’s housing funding and finance system.”
Bronstein reported that shortly after True returned from the New York jaunt, Mayor Breed announced on December 18 that she was appointing him as her Director of Housing Delivery. [True earned $108,084 in 2018 as Chiu’s Chief of staff; his salary working for Breed starting January 2019 jumped to $188,000 annually.] True’s job for Breed mainly involves streamlining the City’s permitting processes, which explains, in part, why Breed placed her competing measure to re-zone public lands citywide in one fell swoop to allow housing on public parcels.
After all, True helped craft the AB-1487 provision to allow privatization, appropriation, and exploitation of the region’s public lands.
Bronstein noted that acquiring public land presents key opportunities for developers to defer land acquisition costs, provides a possibility of receiving discounted land prices, and a chance to leverage the public land contribution or discount as a “local match” for competitive funding programs — all for financial gain — by acquiring land through fee simple sale, long-term ground lease, or prices below market-rate appraisal value.
Mayor Breed reportedly supports AB-1487. It was submitted to Governor Newsom for signature, which he will likely sign into law.
AB-1486, Surplus Land, Assemblymember Phil Ting, Assembly District 19, co-authored by Senator Nancy Skinner. AB-1486 is designed to ease privatization of public land, mirroring AB-1487’s goal of facilitating the private-sector appropriation of regional public land.
AB-1486 will require public agencies to offer their “surplus” land for development before leasing their property. It requires local agencies to offer the right of first refusal to affordable housing developers, schools, and parks before selling, leasing, or otherwise conveying their public land.
It was submitted to the Governor, which he may also sign into law.
Prop E Ain’t Necessary
Planning Department staffer AnMarie Rogers has noted that public land must be rezoned for residential uses, re-zoning to a density zone of RH-2 or greater. But Prop E doesn’t actually re-zone the Public land from “P – Public” to RH-2 or above; it simply expands Planning Code Section 211.1 by adding a new subparagraph “(i)” to expand principally-permitted uses in “P Zones” to include residential uses for 100% Affordable or Educator Housing projects. “P Zones” currently prohibit residential housing of any type.
Proponents assert Prop E “unlocks” and “repurposes” public “underutilized” lands to build affordable housing.
City Supervisors have already allowed placing housing on parcels zoned “Public” via case-by-case variances or creating Public Use Districts. Prop E ain’t necessary!
San Francisco’s 2006 voter guide included former City Attorney Louise Renne’s paid argument against Prop D to re-zone Laguna Honda Hospital, arguing it would permit private facilities on public lands. Calvin Welch’s argument against D worried it might allow private developers to build for-profit facilities on public land in public use districts.
Awarding public land so private developers can enhance profits is against the interests of the people.
Keep public lands in neighborhoods’ — people’s — hands. Vote “No” on Prop E.
The expanded version of this article available at stopLHHdownsize.com contains additional brief discussion of SB-728, SB-50, SB-167, SB-330, SB-592, AB-1487, and AB-1486, four of which Senator Wiener authored or co-authored.
Vote “No” on Prop A: It’s a Lottery in Bond Disguise
Who Affordable Housing Bond Leaves Behind
by Patrick Monette-Shaw
During the Board of Supervisors Rules Committee hearing on July 11, 2019 Supervisor Sandra Lee Fewer repeatedly asked: “Who are we leaving behind?”
If the $600 million Affordable Housing Bond passes this November, we’ll climb to over $1 billion across three general obligation bonds for affordable housing, plus $659.6 million in estimated bond interest, with little middle-income housing to show for it.
The 1996 bond promised building 3,000 new apartments, and home ownership loans for 1,000 families. Only 1,812 units — 60% — were produced. Just 340 loans were issued. Given 1996 failures, voters wised up and rejected two affordable housing bonds, one in November 2002 and one in November 2004, totaling $450 million.
Since 2014, the city has produced 710 affordable middle-income units, 710.” That is just 14.2% of the 5,000 middle-income units goal Mayor Lee had set for MOHCD. What an admission of failure!”
Voters should reject the 2019 bond, too, based on performance of the 1996 and 2015 bonds.
November 2015 Bond Disaster
Consider obvious problems with the $310 million bond voters passed in November 2015:
• Bond Issuance Delay: Now almost four years later, 30.5% ($92.5 million) of the bonds haven’t been issued and won’t be until sometime after October 2019.
• Housing Construction Delay: As of April 2019, four of nine projects funded by the bond were in construction; five projects still being designed hadn’t begun.
• Teacher Housing Delay: A Westside Observer July 2019 article debunked Mayor Breed’s untruthful assertion that the delayed teacher housing at the Francis Scott Key Annex site hadn’t broken ground only because of a two-year delay in re-zoning the parcel to allow constructing housing on public land. Breed should know $29 million for the project won’t be allocated until the third bond tranche is issued after October 2019. The project remains in the design phase.
The “Unit Counts” Bouncing Ball
Given its focus only on the number of units produced, the Mayor’s Office of Housing and Community Development (MOHCD) appears to have inflated its data, with the total unit count bouncing around over time. In June 2015, before being presented to voters, MOHCD claimed the bond would produce 1,435 units. In September 2017, MOHCD asserted 1,785 units would be produced. It’s probably more like only 1,003 units.
• Between the March 2019 loss of 53 senior housing units at 735 Davis, and loss of 56 planned senior units at 1296 Shotwell, 109 units for seniors were removed from bond spending. In December 2018, MOHCD removed 516 units previously included in the total counts because they were only for pre-development projects that shouldn’t have been counted. Pre-development expenses include “soft costs” like architectural, engineering, and legal fees, and other pre- and post-construction expenses.
• Inexplicably, MOHCD is still including in the total units count 445 Public Housing “units” — including 125 market-rate units — that are actually infrastructure projects for roads, sewers, etc. The 445 units are being constructed from other sources of funding, not from the bond. Infrastructure projects fund new streets, gas, sewer, and electricity, or new sidewalks, streetlights, and landscaping, not new or rehabilitated housing units.
• The 2015 bond allocates just $9.5 million (12%) for construction of 72 actual public housing units; the remaining $70.5 million is for pre-development or infrastructure expenses for the 445 units.
Removing the 445 infrastructure-only “units” essentially reduces the bond total unit count to just 1,003 units — 70%, almost one third less than the 1,435 promised. No wonder voters feel betrayed.
“Failure to Build” Middle-Income Housing
On July 11, 2019 MOHCD’s then-director, Kate Hartley, surprisingly blurted during her opening presentation to the Board of Supervisors: “We have failed in our efforts to build affordable middle-income housing.” She further claimed it costs MOHCD $100,000 more per unit to build middle-income housing because of the lack of federal and state funding sources. She then noted:
“If we’re putting $100,000 extra to put an apartment that is affordable to somebody at 100% of AMI, or 120% of AMI, then that means less affordable housing to other groups of people who are desperately in need, like people experiencing homelessness.”
There you have it: MOHCD isn’t interested in spending $100,000 extra for middle-income housing units (other than for educators), because it would negatively affect those who are homeless. Hartley was, in effect, pitting middle-income households against the homeless, holding middle-income households hostage.
The 2015 bond will produce just 121 middle-income rental units, 82 for teachers and only 39 for non-teachers.
November 2019 $600 Million Bond
With a straight face, MOHCD and the City claim the 2019 bond will produce or preserve 2,755 units — nearly triple the 1,003 units funded by the 2015 bond.
The 2019 bond has six sub-categories of projects identified, in part, by four focus groups convened by Board President Norman Yee and Mayor Breed. Concerns about the six categories are described in the expanded version of this article.
• $150 million is for Public Housing, $64 million (41.8%) of which is for infrastructure projects including seven new streets, calling into question whether constructing the actual housing will be from other funding sources
• $30 million is allocated to a misnamed Middle-Income Housing category, promising 90 units. It’s not middle-income housing. Instead, it’s a lottery program for the Down Payment Assistance Loan Program (DALP) and the Teacher Next Door (TND) program of forgivable loans, both for purchase and ownership of market-rate units. The category may fund middle-income construction, but only if cost-effective opportunities arise. The category doesn’t include funds for middle-income rental housing. The DALP loans are highly profitable, because the City collects a significant share of capital gains appreciation when properties are re-sold
• $150 million is earmarked for senior housing, claiming 500 new senior housing units will be created. Unfortunately, no meaningful gap analyses were used to measure housing preferences expressed by San Francisco’s senior populations for independent rental housing, vs. affordable board-and-care homes, vs. assisted living facilities, vs. skilled nursing facilities. This is important because over 1,659 San Francisco residents have been dumped into out-of-county facilities due to a severe shortage of such facilities in San Francisco.
$1 Billion Across Three Bonds
What housing are we getting for the $1 billion across the 1996, 2015, and 2019 bonds?
• Nearly 83% ($835 million) of the combined $1 billion were or are budgeted for public housing and low-income housing, including low-income housing for seniors and low-income residents in the Mission District
• Another 8.3% ($84.4 million) is, or was, budgeted for DALP and TND loans to purchase market-rate ownership units, reserved for households earning between 80% and 200% of AMI. Translating 200% of AMI in 2019 is $172,400 for a one-person household and up to $246,300 for a four-person household. It’s hard to find much solicitude or empathy for households earning 200% of AMI.
• Combined, fully 91% ($919 million) is allocated to low-income housing or loans to purchase market-rate housing ownership units.
• Just 9% ($91 million) of the combined $1 billion is allocated to other categories of housing, including 1% ($10 million) for 39 middle-income rental housing for non-teachers, 4.8% ($49 million) for educator-only housing, and 3% ($30 million) for other affordable housing preservation.
The bonds should be renamed “Low-Income and Market-Rate Housing Bonds” to reflect truth-in-advertising.
Middle-Income Households Left Behind
Hartley replied to Supervisor Fewer on July 11: “We have failed to build affordable middle-income housing.” That’s who is being left behind.
Hartley also testified that spending $100,000 more for a middle-income housing unit (other than for teachers) might deprive housing for the homeless. God forbid funding housing equity for middle-income households might impair housing for the homeless.
• Between 2007 and 2014 San Francisco produced a paltry 19% of the RHNA target for middle-income households earning between 80% and 120% of AMI — while producing 109% of the RHNA target for market-rate units for Above-Moderate income households earning over 120% of AMI.
Hartley also admitted on July 11: “Since 2014, the city has produced 710 affordable middle-income units, 710.” That is just 14.2% of the 5,000 middle-income units goal Mayor Lee had set for MOHCD.
What an admission of failure!
Given the multiple problems described in this article, Vote NO on Prop A in November.
The expanded version of this article at stopLHHdownsize.com includes additional detail about the 2015 Bond.
Mayor London Breed should be commended for advocating for more affordable housing development.
But she’s playing from State Senator Scott Wiener’s disastrous re-zoning playbook. Wiener’s failed SB-827 and SB-50 involved legislation that would have undermined a long list of local controls over housing development.
Similarly, Breed is trying to override neighborhood input into housing projects by trampling on San Francisco’s local land-use controls.
...when Breed placed the re-zoning measure on the ballot all by herself, she must have understood she would be depriving both members of the public and the Board of Supervisors of any public debate or discussion about the merits — or lack thereof — of her proposal.”
Observers wonder whether she and Wiener are pandering to developers expecting quid pro quo campaign contributions.
Breed is putting three ballot measures on the ballot this November — a $600 million general obligation bond; a Charter change measure to hand 100% affordable housing projects “by-right” status that will deprive neighborhoods of input during public appeals and discretionary reviews, and prevent challenges under CEQA; and an Ordinance to re-zone all public land (except Park and Recreation property) to permit housing where residential housing is currently prohibited.
All three measures have serious problems. This article focuses on the re-zoning measure, arguably the worst of the bunch.
Citywide Re-Zoning of Public Lands
On June 11, Breed staged a press conference about the City purchasing 1515 South Van Ness from Lennar Multifamily Properties. She stated: “We have to be aggressive when it comes to getting more housing in the City. … The other thing that I’m proposing is an Ordinance, which I don’t have to go to the Board of Supervisors [for], thank goodness.
Breed wanted to place the “aggressive” measure on the ballot all by herself so she could sidestep opposition from Supervisors and members of the public. Breed could have introduced the same Ordinance to the Supervisors, and the Board could have approved it without asking voters to weigh in. They’ve done so before.
Clearly, when Breed placed the re-zoning measure on the ballot all by herself, she must have understood she would be depriving both members of the public and the Board of Supervisors of any public debate or discussion about the merits — or lack thereof — of her proposal.
Teacher Housing Project Misinformation
During Breed’s June 11 press conference, she implied delays with the teacher housing project at 43rd & Irving are due solely to zoning issues. Breed claimed: “Everybody is wondering why Francis Scott Key is taking an additional two years. Because the property is not zoned for housing.”
That’s pure nonsense. The delay was caused by multiple factors, re-zoning the least of them.
The Chronicle reported April 24 “developers have yet to break ground, in part because they had to apply to rezone the parcel …” On June 21, 2019 the Mayor’s Office of Housing and Community Development (MOHCD) admitted the project is still in its “design phase.” Third graders know you can’t break ground and begin building a project still being designed.
The Chronicle mentioned nothing about the three-and-a-half-year delay during which MOHCD has stalled issuing the third and final $92.5 million portion, or tranche — fully 30% — of the $310 million 2015 Affordable Housing Bond that won’t be issued until the Fall of 2019. The delay issuing the bonds may have contributed to the project not having broken ground.
MOHCD issued a Request for Development Proposals for educator rental housing on October 3, 2017. Six months later, MOHCD awarded development rights for the project to MidPen Housing in April 2018. It then took MidPen another seven months before it submitted a Preliminary Project Assessment (PPA) to the Planning Department on November 19, 2018. It took another four months before MidPen submitted additional applications for the project to Planning in mid-March 2019, including an Environmental application (ENV), a Project Profile (PRJ), a Zoning Map Amendment (MAP), and a Planning Code Amendment (PCA).
MidPen submitted a General Plan Amendment (GPA) to Planning for the project on May 1, 2019 to create a Special Use District for the property. So, in reality, MidPen’s re-zoning application for the project has been before the Planning Department for under 60 days since May 2019, not the two-years Breed wildly claims to rationalize her citywide re-zoning of public lands.
On June 17, 2019 the Planning Department reported “No project-specific hearings or re-zoning hearings have taken place, nor have any been scheduled” by either Planning or the Board of Supervisors on MidPen’s various applications.
“Against the Interest of the People”
Against this backdrop, the San Francisco Examinerreported on June 15 that another housing project proposed for Balboa Reservoir is against the interests of the community.
Community members are concerned selling public land to private investors is a bad idea. Labor journalist and City College advocate Steve Zelzter said:
“You are turning public land over to private developers — it’s against the interest of the people of San Francisco. We should not trust developers to take care of our interests and needs.”
Dueling Ballot Measures
News surfaced June 19 that the Elections Department received two competing ballot measures for November dealing with re-zoning of public land: One ordinance submitted by Breed and a second ordinance by four Supervisors (Supervisors Peskin, Fewer, Walton, and Haney). A side-by-sidecomparison sheds some light on their differences.
The Affordable Teacher Housing Program component of Breed’s proposal requires no less than two-thirds of the housing units must be deed restricted for affordable units. The other third can apparently be market-rate units (on public land re-zoned). That’s essentially a giveaway to Senator Wiener’s and Breed’s developer friends and campaign donors, and amounts to awarding public lands to DIMBY’s (Developers Invading Municipal Back Yards).
Inexplicably, Breed’s measure prohibits building both the 100% Affordable Housing and Affordable Teacher Housing components in RH-1 and RH-1(D) zoned neighborhoods, portending no teacher housing would be built on the West Side.
Breed’s measure contains a poison pill titled “Conflicting Measures,” which says in the event her Ordinance and any other measure(s) regarding 100% affordable teacher housing and regulation of Public (P) zoned districts appear on the same ballot, then the other measure(s) shall “be deemed to be in conflict” and her Ordinance will prevail (provided she receives more affirmative votes), and the other measure(s) “shall be null and void in their entirety.”
According to a City Hall source who spoke on condition of anonymity, the Supervisors “only saw the Mayor’s proposal” the night before she submitted it to Elections. The source noted:
“I think the Supervisors were clear in their statements … that they would prefer to do this work legislatively at the Board. But given that the Mayor has refused to sit down with the Legislative branch about any of her [three ballot measure] proposals, this [dueling measure] creates space to negotiate and work toward a compromise.”
Breed prefers to work by fiat.
If a single compromise measure is reached between the Mayor and the Board of Supervisors, they have until August 2 to submit a consolidated measure to Elections.
The best course of action would be to withdraw both competing measures from the ballot, and continue the current practice of having the Board of Supervisors hear re-zoning applications on a project-by-project basis, allowing robust public debate on the merits and impacts of housing developments on affected neighborhoods.
Disconnect on Number of Parcels
The Chronicle’s April 24 article noted Breed’s re-zoning measure would affect “about” 500 parcels zoned for public use that currently prohibit building residential housing.
In June 2018, the Planning Department provided a list of 930 parcels zoned as “Public (P)” by various Assessor “Use Types.” Weirdly, the list didn’t include a category for “Recreation and Parks” properties. Well over two-thirds of the 930 Public parcels are not vacant land on which the City can build affordable housing.
Nine parcels are our public hospitals at SFGH and Laguna Honda Hospital, which represent just 0.98% of the 930 parcels that we should reserve for medical facilities, rather than housing, in the future.
If there is going to be a re-zoning carve-out exempting Rec and Park property, there should also be a carve-out exempting “P” parcels with an Assessor’s “Use Type” of hospitals, too.
Laguna Honda Hospital Land Grab
Healthcare advocates placed Prop. D on the June 2006 ballot to re-zone LHH’s campus for only elderly and disabled San Franciscans. Opponents launched a meritless and brutal disinformation campaign, falsely claiming developers were engaging in a land grab to hand over LHH’s campus to private developers. The ensuing hysteria sank Prop. D, which voters rejected.
Ironically, Breed now wants voters to approve re-zoning all public parcels (except parks) to hand over to private developers.
The Westside Observerreported in July 2018 Supervisor Yee began pitching a proposal to MOHCD in March 2018 to build a six-story building with up to 160 units of senior housing on LHH’s campus, with a full spectrum for those who need assisted living, skilled nursing, and independent living options.
MOHCD’s director, Kate Hartley, shot Yee down, flatly claiming LHH’s site “wasn’t big enough.” Hartley also noted LHH’s campus is a Public (P) parcel that prohibits residential housing.
Yee tried again in December 2018, proposing a significantly larger “Life Care Facility” for LHH’s campus. That proposal was shot down, too.
Obviously, if LHH’s site is “too small” it shouldn’t be re-zoned to build market-rate teacher housing on the property!
Secondarily, LHH has worked with community partners to develop hiking trails on LHH’s campus, such that its recreational land should also be exempt. The Laguna Honda Community Trail project sponsored by San Francisco Urban Riders has been improving and restoring over two miles of historic multi-use trails at LHH since 2017, funded in part by Supervisor Yee’s District 7 Participatory Budget.
Breed and the Board of Supervisors need to clean house streamlining other bureaucratic delays besides zoning. Neither of the competing ballot measures will solve the other problems.
Re-zoning should be handled legislatively. There’s no reason for voters to be weighing in on this when the Board currently has authority to do re-zoning on a parcel-by-parcel basis.
An expanded version of this article with additional discussion is available at stopLHHdownsize.com.
Can you exonerate the truly innocent in a legal system having binary verdicts available: “Guilty” vs. “Not Guilty”? Unfortunately, the answer may be “No.”
I was stuck by this reading Preet Bharara’s book “Doing Justice,” in which he noted “There’s no such thing as a verdict of innocence.”
Bharara was the U.S. Attorney for the Southern District of New York from 2009 to 2017, when President Trump fired him. In his book, Bharara recounts several stories of innocent people who had been wrongly accused and forever injured because of a failure to sufficiently reconsider evidence and facts at multiple points in the criminal justice system, leading to injustice against innocent people.
In the end, San Francisco taxpayers will end up forking over well upwards of $53 million because police officers hadn’t gotten it right. A cast of prosecutors, judges, defense lawyers, district attorneys, and jurors also didn’t get it right, because of their combined failure to sufficiently reconsider. And the failure to reconsider shattered these innocent men’s lives.”
He recounts the case of a man who spent 17 years in Sing Sing prison for a murder he hadn’t committed along with five other defendants who had also been falsely convicted in a second murder. In 2013, the convictions against all six were overturned; the defendants received $3.9 million from the state and New York City paid the wrongfully accused $40 million in 2016.
The Innocence Project reported in March 2016 that between 1989 and 2012, wrongful convictions cost California taxpayers at least $221 million, including $80 million for costs of incarceration, $68 million for lawsuit settlements, $68 million spent on trials and appeals, and $5 million in state compensation for wrongful imprisonment.
That included $12.6 million in San Francisco for 97 wrongful arrests and convictions, and legal settlements and fees during that 23-year period. There’s been additional wrongful convictions and settlements since then.
As the Westside Observer reported last March, San Francisco taxpayers have had to foot the $90.7 million bill for City Attorney time and expenses plus settlement awards in 359 prohibited personnel practice lawsuits brought by City employees involving on-the-job bullying, wrongful termination, harassment, discrimination, and other practices between 2007 and 2018.
Wrongful Arrests and Convictions in SF
On April 3 a records request was placed to the City Attorney’s Office seeking settlements awarded to plaintiffs, plus the City Attorney’s time and expenses involved in wrongful prosecution, wrongful conviction, and wrongful incarceration lawsuits concluded in San Francisco between January 1, 1990 and December 31, 2018.
The City Attorney’s Office (CAO) responded on April 29, providing an Excel file listing 366 lawsuits, but excluded one pivotal case, which makes it 367.
The data reveals taxpayers have had to pay $53.4 million, at minimum, in City Attorney time and expenses plus settlement awards for 367 lawsuits against the City for unlawful arrest, excessive force by law enforcement officers, and other causes.
The data shows:
• Of the 366 lawsuits fully settled, 227 (62%) involved unlawful arrest, and comprised $22.6 million (56.2%) of $40.3 million in total costs.
• Among the 366 lawsuits, another 98 cases (27%) involved excessive force by police officers and “Other” types of actions by the police, comprising an additional $15.9 million (40%) of total costs.
• Of the 366 lawsuits, plaintiffs received $15.7 million (39%) in settlements, while the City Attorney racked up $24.6 million in time and expenses, 61% of total costs.
• Adding in the known $13.1 million settlement in the Trulove lawsuit, total costs grows to at least $53.4 million, which will increase when the CAO finally settles Trulove’s case and releases the CAO’s time and expenses.
Had more of Bharara’s admonition to sufficiently reconsider been given before unlawfully arresting people and using excessive force, perhaps taxpayers would not have been on the hook for the $53.4 million (and growing) costs!
Four Cases: Wrongful Incarceration
Among the lawsuits filed in San Francisco, four men were innocent, but wrongfully incarcerated. Costs of their cases involve $30.8 million, and still growing.
• Caramad Conley: Conley was wrongfully convicted in 1994 and sentenced to serve two life-without-parole terms for a 1989 drive-by shooting that left two dead and injured 11 others.
Superior Court Judge Marla Miller ruled in December 2010 that Conley had been denied a fair trial, and was wrongly and unconstitutionally convicted, in part because material information was not provided to Conley’s lawyers. The lead police investigator in the case, Earl Sanders — who later became San Francisco’s Chief of Police briefly — knew a witness had committed perjury, but didn’t correct the false testimony. It wasn’t the only case in which Sanders withheld information from defense lawyers, a Brady offense.
Conley was released in January 2011 after serving 18 years in prison.
• John Tennison and Antoine Goff: Tennison then 17 and Goff then 19, were charged with first-degree murder of Roderick Shannon on August 19, 1989. Police claimed the pair of men had been identified by two teenage eyewitnesses, one girl 14 and another girl 11.
The Court ruled prosecutors and police had information that another person might have committed the crime but did not disclose it during the trial. Tennison and Goff had filed complaints alleging numerous Brady violations.
Prison Legal News reported that two SFPD investigators — Earl Sanders and Napoleon Hendrix — had coached the 11-year-old girl who witnessed the shooting and had suppressed a video-taped post-trial confession by Lovinsky Ricard, the actual killer. In 2002 Sanders and Hendrix were accused of misconduct and colluding with prosecutors in suppressing Ricard’s confession. That confession and other information was also never turned over to Tennison’s and Goff’s defense lawyers.
U.S. District Court Judge Claudia Wilken overturned Tennison’s conviction on August 26, 2003.
• Jamal Trulove: In 2010, Trulove was convicted of murdering his friend in 2007 at a Sunnydale housing project. A state appeals court overturned his conviction in 2014. A second jury acquitted him of murder at retrial in 2015, finding that the police had, essentially, framed him.
In 2016, Trulove sued four named SF police officers involved. “A federal jury determined that the two lead homicide inspectors on the case, Maureen D’Amico and Michael Johnson, not only made up evidence against Trulove but withheld evidence that would have helped him.”
CBS News reports Trulove accepted a $13.1 million settlement in exchange for the City dropping its appeal of the $14.5 million in damages a federal jury in Oakland had awarded him last year.
Of note, both the Conley and Tennison/Goff cases involved the same police investigators, Napoleon Hendrix (who has since died) and Earl Sanders, who retired in 2003. The Courts overturned the murder verdicts in both criminal lawsuits because investigators had illegally withheld exculpatory evidence.
In the Tennision and Goff lawsuit, the U.S. District court ruled that the prosecutor had a duty to ensure Brady evidence that came to light after conviction was provided to the defendants. That apparently didn’t happen.
The Brady doctrine is a pre-trial discovery rule based on the 1963 U.S. Supreme Court case, Brady v. Maryland. The Supreme Court ruled prosecutors are required to disclose any information and exculpatory evidence favorable to the defense, in part because Brady violations send potentially innocent people to prison.
When prosecutors withhold Brady violations they engage in the worst kind of prosecutorial misconduct and violate prosecutorial ethics.
Failure to Reconsider
After Tennison and Goff eventually filed a federal lawsuit in April 2004, it took nearly another six years before they received their settlement awards in July 2010 — 19 years after their belated-justice nightmare began. Strangely, the City Attorney’s Office claims the Tennison and Goff lawsuit was finally “settled” on August 21, 2014 — four years later!
Bharara reminds us people’s understanding of the truth — whether about the correctness of a fact, or the guilt of a person — should never be unalterable. That includes sufficiently reconsidering at every step during an investigation. We need to put ourselves in Conley’s, Tennison’s, Goff’s, and Trulove’s shoes: Combined, they spent a half century wrongly incarcerated for crimes they didn’t commit.
In the end, San Francisco taxpayers will end up forking over well upwards of $53 million because police officers hadn’t gotten it right. A cast of prosecutors, judges, defense lawyers, district attorneys, and jurors also didn’t get it right, because of their combined failure to sufficiently reconsider. And the failure to reconsider shattered these innocent men’s lives.
An expanded version of this article is available on the author’s web site at stopLHHdownsize.com.
Monette-Shaw is a columnist for the Westside Observer newspaper, and a member of the California First Amendment Coalition (FAC) and the ACLU. Contact him at firstname.lastname@example.org.
2015 Affordable Housing Bond Update
Affordable Housing That Wasn’t
by Patrick Monette-Shaw
In November 2015 voters approved a $310 million Affordable Housing Bond. The Westside Observer has reported on the bond several times. Now’s a good time for another review, because the mayor is proposing a second affordable housing bond, even before the first one is finished.
Mayor Breed wants to increase a new $300 million affordable housing bond planned for the November 2019 ballot by $200 million—to $500 million. Supervisor Matt Haney wants a $1 billion bond.
The Supervisors have until mid-July to approve a bond measure for the ballot.
The November 2015 ballots to approve the bond explicitly stated the question being put before voters was whether the bond would include a middle-income rental program. The legal text of the Affordable Housing Bond clearly stated in the November 2015 voter guide a portion of the bond would be used to create “Middle-Income Rental Housing.”
Problems With Bond Oversight
The slow pace of the 2015 housing bonds is troublesome. The Controller’s Office confirmed that as of April 2019 just $217.3 million — 70% — of the $310 million bond has been issued so far. The first tranche was issued on November 1, 2016 for $75.1 million; the second tranche was issued on May 23, 2018 for $142.1 million, two-and-a-half years after voter approval.
MOHCD claims the remaining third tranche — for $92.5 million, representing 30% — will be issued in the Fall of 2019, four years after voters approved the bond in 2015. Why is it taking so long?
The Citizen’s General Obligation Bond Oversight Committee (CGOBOC) oversees spending of general obligation bonds. Currently $4 billion across 12 bonds.
CGOBOC has done a terrible job so far holding the Mayor’s Office of Housing and Community Development (MOHCD) accountable for the bond spending. Successive updates from MOHCD keep shifting planned bond uses, and CGOBOC has done little to reign in MOHCD. Why does planned spending keep shifting so often?
When CGOBOC held its first hearing on the bond in January 2016 it had eight members, five are no longer there. Because the 2015 affordable housing bond is far from over, CGOBOC’s institutional knowledge of bond spending will be severely compromised when the three remaining members are termed out.
Lack of Metrics to Evaluate Bond Spending
When CGOBOC held its first hearing on the bond, several CGOBOC members expressed the need to develop “metrics” to assess bond spending and whether the right allocation decisions had been made.
CGOBOC members in January 2016 suggested several metrics, including the dollar amount allocated per project, the Area Median Income (AMI) targets, number of new units constructed vs. number of existing housing units preserved, household size, demographics targeted (e.g., populations such as the homeless, seniors, veterans, teachers, families, etc.), and the Supervisorial districts in which projects are actually developed.
It now appears MOHCD’s only metric is the number of units produced. To date, MOHCD hasn’t provided CGOBOC members with a breakout on the number of new housing units produced versus existing units rehabilitated or preserved.
Changes in Bond Spending
In 2014 and 2015, prior to placing the housing bond on the November 2015 ballot, successive documents from the Mayor’s office included several proposed programs that were subsequently eliminated, including a $17 million Middle-Income Rental Housing program, and a $25 million Expiring Regulations Preservation category to preserve existing rental units. The two sub-categories were introduced to CGOBOC in January 2016 but were eliminated by July 2016.
The number of units planned in each of four main housing categories have bounced all over the place in successive reports to CGOBOC shown in the table. Didn’t CGOBOC members notice during the past three-and-a-half years the drastic changes in planned bond uses?
Middle-Income Housing Cuts
Despite Mayor Lee’s observation in Time magazine in January 2014 that everybody assumed the middle-class were moving out of San Francisco, uses of the 2015 bond to help middle-income residents have shrank in the number of planned units.
The Middle-Income Housing category planned for 519 units has now dropped to 275 units, a 47% percent change decline from June 2015 projections. And there’s been a massive shift from rental units to ownership units.
There are no state or federal funding sources for middle-income housing. That’s why the middle-income housing category was added to the bond. So, SF took the lead, dedicating $80 million as a local source subsidy for middle-income housing.
The bond included 235 rental units in the Middle Income Housing main category — 85 in the Middle-Income Rental Program and 150 in the Expiring Regulations Preservation subcategories. The Expiring Regulations Preservation was intended to protect existing units with affordable rents from expiring and becoming market-rate units, displacing tenants.
The remaining 284 units — 34 down-payment assistance (DALP) loans and 250 Teacher Next Door loans — were for middle-income ownership purchases, not rentals. Their drop to just 172 loans in 2018 presents a 39.4% change decline.
Although the 235 rental units were eliminated by July 2016, the main category still contains 103 rental units, 82 of which are reserved for teachers. Nevertheless, it represents a 56.2% change decline in the number of middle-income rental units.
How has the Middle-Income Rental Program Vanished?
The November 2015 ballots to approve the bond explicitly stated the question being put before voters was whether the bond would include a middle-income rental program. The legal text of the Affordable Housing Bond clearly stated in the November 2015 voter guide a portion of the bond would be used to create “Middle-Income Rental Housing.”
CGOBOC members should have known the legal text and question posed to voters mandated the Middle-Income Rental program. And they should have noticed that the Middle-Income Rental program presented to it in January 2016 when they assumed oversight of bond spending was suddenly eliminated seven months later in July 2016. But CGOBOC’s meeting minutes never reported any discussion about why the category vanished.
Given the temporal proximity in time, some wondered whether MOHCD may have decided that after Prop C passed in June 2016 that MOHCD could remove the Middle-Income Rental program from the Affordable Housing Bond a month later. It’s ludicrous. The inclusionary aspects of Prop C didn’t solve or achieve affordable rents designed to be addressed through the Middle-Income Rental program.
When asked to comment about whether Prop C’s passage had contributed to MOHCD’s decision to eliminate the Middle-Income Rental program, MOHCD’s director Kate Hartley indicated on April 23, 2019 “We did not conclude that Proposition C’s tiered income eligibility approach solved the middle-income housing need.”
Dialing for Middle-Income Dollars
Successive MOHCD reports to CGOBOC have documented drastic shifts in spending within the Middle-Income Housing category budget.
In June 2015 and January 2016, MOHCD reported to CGOBOC that between the DALP and Teacher Next Door loan ownership programs, a combined $15 million would comprise about 26% of the Middle-Income Housing budget. The Middle-Income Rental and Expiring Regulations Preservation categories — both rental programs — were expected to be awarded a combined $42 million, comprising 74% of the Middle-Income budget.
Between January 2016 and December 2018, the DALP budget for middle-income ownership units jumped by $24.4 million — from $10 to $34.4 million. By December 2018, the DALP and Teacher Next Door loan ownership programs totaled $39.4 million between the two ownership purchase programs, representing 49% of the $80 million Middle-Income Housing budget, a 23% increase.
By December 2018, the remaining $39 million in the Middle-Income category that may be for rental projects represented 49% of the budget, a drop from 74%.
City Hall needs to abandon the belief that the middle-class are fleeing the City, and needs to dedicate more local funding for middle-class rental housing production.
An expanded version of this article with additional discussion, is available at stopLHHdownsize.com.
The Westside Observer has received an anonymous tip: A San Francisco Police Department incident report, a public record, has come to light indicating that grand theft embezzlement of the Forest Hill Association was reported to the Taraval Police Station on September 24, 2018 after a forensic accountant examined the Association’s billing records.
The case involved Forest Hill Association employee Janette Najar, named in the incident report as a being a potential suspect in embezzlement of over $50,000 from the Association. She had been employed for three years but was quickly terminated when the suspected embezzlement was discovered.
Najar’s job involved booking parties and events in the Association’s Forest Hill Clubhouse community facility and depositing the rental income in the Association’s bank account. Discrepancies between amounts billed to clients renting the Clubhouse, and amounts deposited to the Association’s bank account raised concerns”
Najar’s job involved booking parties and events in the Association’s Forest Hill Clubhouse community facility and depositing the rental income in the Association’s bank account. Discrepancies between amounts billed to clients renting the Clubhouse, and amounts deposited to the Association’s bank account raised concerns among officers of the Association, who filed the police report at Taraval Station.
The incident report noted that Police Officer James Barber, who took the police report, called SFPD’s Financial Crimes Bureau and left a phone message to report the incident. Unfortunately, it is thought PD’s Financial Crimes unit has been reduced to just one employee who may have insufficient resources to pursue the incident. The Association is clearly very interested in reimbursement of its missing funds.
“As a Forest Hills resident, I am shocked and appalled learning about this police report,” says Joe Bravo. “I urge and request that this be investigated to get to the truth; no time should be wasted completing an investigation,” he added.
It’s not known if the incident has been referred to the District Attorney’s Office for restitution. Police Chief Bill Scott; former Police Chief Greg Suhr; and neighborhood officials such as Supervisor Norman Yee, former Fire Department Chief Joanne Hayes-White, and the Mayor’s Chief of Staff Sean Elsbernd should be encouraged to follow up on this case.
Anyone having knowledge of Ms. Najar’s potentially improper activities should contact SFPD’s Financial Crimes Unit at (415) 553-1521, and Taraval Police Station Captain Nicholas Rainsford at (415) 759-3100.
Mayor Breed churned one conflict-of-interest-laden incumbent, Wendy Paskin-Jordan, for another conflict-of-interest replacement, Scott R. Heldfond, for appointment to the San Francisco Employees’ Retirement System (SFERS) board of trustees?
During the Board of Supervisors March 18 Rules Committee hearing to consider Mayor Breed’s appointment of Heldfond to SFERS, new information came to light. Rules Committee chairperson Supervisor Hillary Ronen noted an elephant in the room: that Paskin-Jordan asserted she was told by Breed that if Wendy met with and had support from the Board of Supervisors, Breed would re-appoint her to SFERS’ board. Instead, the Mayor nominated Heldfond to replace her.
Let’s take this story in reverse cuisine order: Main course Heldfond, followed by appetizer Paskin-Jordan.
Main Course: Heldfond’s Troubled History
Breed had already notified the Board of Supervisors on February 22 she had appointed Heldfond to the SFERS “seat formerly held by Wendy Paskin-Jordan.” Breed’s Chief of Staff, Sean Elsbernd, may have had his thumb on the scale getting Heldfond appointed.
Heldfond’s LinkedIn profile summarizes his background and employment with Aon PLC (Aon Risk Services) as a senior vice president, and as a director of Mendocino Brewing and UBICS, the latter two of which are subsidiaries of Vijay Mallya’s UB Group in India. [Editor: For discussion of Heldfond’s 14-year affiliation with Mallya, see Lou Barberini’s article in this issue of the Observer.]
Heldfond has served on two San Francisco city commissions, first on the Health Service System (HSS) Commission that oversees and manages health benefits for city employees, retirees, and their dependents. He currently sits on the Civil Service Commission.
During its March 18 hearing, the Rules Committee ignored a much larger elephant in the room: Heldfond’s real, and a second perceived, conflict of interest.
When the full Board of Supervisors heard the Rules Committee’s recommendation on March 19, they voted 9-to-2 to approve Heldfond. Only Supervisors Sandra Lee Fewer and Board president Norman Yee voted against Heldfond’s confirmation.
Heldfond’s Service on Health Service System Board
Heldfond served for a decade-and-a-half between 1995 and 2010 on the HSS Commission; he resigned from that Commission on September 1, 2011. His resignation letter claimed he was resigning due to a perceived conflict of interest.
In early 2011, the City Controller issued a RFP for actuarial consulting work for HSS. Aon Hewitt’s San Francisco office submitted a bid proposal on May 12, 2011.
The two-highest bidders were invited to oral interviews. The panel interviewers awarded Aon Hewitt the highest oral score. Jay Huish, SFERS’ then-Deputy Director, was one of the two panelists; Huish was clearly involved in awarding Aon the HSS contract.
Then-Supervisor Sean Elsbernd served simultaneously in 2011 as the Board of Supervisors appointee on both SFERS’ and HSS’ board of directors. Elsbernd had advocated aggressively SFERS hire Huish. Shortly after Aon was awarded HSS’ actuarial consulting contract in July 2011, Huish became SFERS’ Executive Director.
The City Controller reported on March 18, 2019 the total amount of “completed payments” as of March 10, 2019 to Aon Hewitt for the HSS contract totaled over $5 million and had run for a seven-year period through June 30, 2018, not the planned three-year period. Aon benefitted handsomely.
Heldfond’s resignation letter claimed it was just a coincidence he was an employee of a separate division of Aon. He noted “in fact, I had never met the [AON] team that won the business for consulting with HSS.” As an Aon senior vice president, how could he not have met the San Francisco Aon Hewitt team that won the contract with the Commission he served on?
And how could Heldfond not have known Aon would earn substantial fees from his real or perceived conflict of interest?
A Second Conflict of Interest “Coincidence”?
The three Rules Committee members also ignored on March 18, 2019 another larger elephant in the room: Heldfond’s potential second real, or perceived, conflict of interest involving, this time, the Retirement Fund — not HSS.
In January 2016 SFERS issued an RFP to perform investment consulting services for SFERS’ Deferred Compensation Plan. SFERS’ Deferred Comp Committee April 27, 2016 meeting minutes reported seven bid responses were received, including one bid in March 2016 from Aon Hewitt’s Chicago office for SFERS’ DC Plan RFP.
The Chicago office may be a separate location, but it appears to be a sister affiliation with Aon Hewitt’s San Francisco office, the latter of which was awarded the HSS actuarial consulting contract in 2011.
Although Aon Hewitt wasn’t selected for SFERS’ Deferred Comp Plan RFP, the “coincidence” of another Aon Hewitt entity bidding on an investment advisor contract — while Aon’s Hewitt’s actuarial services contract with HSS was still in effect until June 30, 2018 — is troubling.
To the extent various Aon affiliates continue to bid on contracts with SFERS and HSS, doesn’t that pose the same potential conflicts of interest for Mr. Heldfond?
L’Affaire Aon and Hedge Funds
On February 10, 2017 news broke in a Fortune.com article insurance broker Aon PLC agreed to sell its employee benefits outsourcing business to private equity firm Blackstone Group LP for up to $4.8 billion. Aon’s employee outsourcing benefits appears to have been handled by the outsourcing department of Aon Hewitt that was acquired by Blackstone and rebranded as “Alight Solutions.” As a venture capitalist and Aon senior vice president, did Heldfond not know about the sale?
Blackstone, readers may remember, is the first hedge-fund manager hired by SFERS’ board to invest its first $500,000 when it decided to wade into risky hedge fund investments. So now we have a SFERS hedge-fund manager that is also investing in cutting healthcare benefit costs.
During opening comments before the Rules Committee considering his appointment to SFERS Board on March 18, Heldfond asserted he had initiated the San Francisco–Bangalore Sister City Initiative.
He continues to serve as a Board member on the Bangalore Sister City Initiative. Heldfond is joined by other directors and by other Honorary and Emeritus Board members, including U.S. Senator Dianne Feinstein, Governor Gavin Newsom, the late Mayor Ed Lee, former Mayor Frank Jordan, and by Mayor London Breed as the current Honorary Chairperson.
Back in March 2015, the Westside Observer published my article on Mayor Ed Lee’s troubling reappointment of Wendy Paskin-Jordan to SFERS’ board. The article noted her many conflicts of interest and fitness to serve as a trustee of the pension fund.
Lee had to have known two conflict-of-interest complaints against Paskin-Jordan had been filed with the City’s Ethics Commission. Luckily, the Board of Supervisors were aware of the two Ethics complaints filed in 2014. Three mainstream media outlets had contemporaneously raised concerns about Paskin-Jordan’s reappointment.
At the time, observers believed Paskin-Jordan’s investments in GMO’s Quality Fund represented, at minimum, a perceived conflict of interest. SFERS’ executive director Jay Huish claimed to the Ethics Commission that she had been given the right to invest in the GMO fund at a lower level of investing before she was appointed to SFERS’ board and it was, therefore, permissible. She didn’t personally invest in GMO until August 30, 2011 after she had already been on the pension board for over a year.
Indeed, she failed to report her investment in the GMO Quality Fund in April 2012 and only got around to reporting it in March 2013, fully 16 to 19 months after acquiring it in August 2011. She should have reported it the same year she acquired it.
As reported in 2015, Mayor Lee noted Paskin-Jordan had served on Barclays Global Investors’ (BGI) board of directors until it was acquired by BlackRock (not to be confused with Blackstone), and she served as a Trustee of various funds of BlackRock Funds. Given SFERS’ involvement with BGI, her affiliation as a Trustee of various BGI money market funds should have been thoroughly investigated — which the Board of Supervisors completely failed to do. BGI was one of SFERS’ currency overlay managers that contributed to a $60+ million loss to SFERS over eight years.
Despite all of the ethical concerns raised regarding her reappointment, the Board of Supervisors unanimously approved Paskin-Jordan’s reappointment on January 7, 2015 and did so without probing into any of her conflicts of interest.
Paskin-Jordan’s critics in 2015 accused her of having delayed for almost two years SFERS’ divestment from its fossil fuel investments after the Board of Supervisors called for that divestment in 2013. She stalled, saying fossil fuel divestment needed to be done on a “thoughtful, prudent financial” basis (the same gibberish Heldfond regurgitated on March 18). Following her re-appointment, she continued to stall the SFERS fossil fuels divestment, and some observers worried her investments in Jeremy Grantham’s GMO Quality Fund may have slowed SFERS down.
Follow the Money
Beneficiaries of the Employees’ Retirement System and Health Service System — active city employees, retirees, and other beneficiaries — deserve better than having to put up with conflict-of-interest-laden appointees churned to these Boards. Can’t the mayor find anyone without clear conflicts of interest? This should embarrass Breed.
Now that Elsbernd has gotten his way several times, beneficiaries of the Retirement System should probably keep a close eye on now SFERS Trustee Heldfond to monitor how he affects the SFERS hedge fund investments, and SFERS Deferred Comp plan’s infatuation with investing in insurance annuities to the probable detriment of employees trying to save for their eventual retirements, particularly considering the incestuous nature of politics and money in San Francisco.
The regime may churn, but conflicts of interest remain. As the saying goes, follow the money. Follow the politics. And follow the potential incestuous conflicts of interest.
An expanded version of this article with additional discussion, is available on the author’s web site at stopLHHdownsize.com.
It’s been observed elsewhere that keeping a bully on staff is the equivalent of burning a big pile of money in the back of your building.
By extension, keeping bullies employed in San Francisco City government is like throwing $90.7 million — and growing — of taxpayer funds down the toilet. Will there ever be a taxpayer revolt in San Francisco?
Clearly, the costs of settlements awarded and the costs of City Attorney time and expenses involved in fighting lawsuits filed by City employees that have now reached $90.7 million is just the tip of the iceberg in the total costs of workplace bullying. It’s nearly impossible to estimate the financial costs associated with employees’ lost productivity, lower morale, increased absenteeism, and costs associated with employee turnover, recruitment, and attrition.
City managers and our elected officials cannot afford to ignore the high cost of bullying, nor should taxpayers. After all, in the 11-year period between January 1, 2007 and December 14, 2018 there have been at least 461 lawsuits filed by City employees for violations of various prohibited personnel practices.
… by requiring City employee-defendants found guilty of harassment in a court of law to pay settlement costs out of their own pockets. It would have been the surest and fastest way to stop the harassment if perps knew they’d have to pay the settlements themselves.”
The term “prohibited personnel practices” refers to behavior banned by existing federal, state, and local laws as unlawful — unwanted behavior like sexual harassment and sexual discrimination, sexual orientation discrimination, racial discrimination and harassment, age discrimination, disability discrimination, wrongful termination, and other illegal practices.
This On-Going Series of Articles
Back on April 16, 2013 the San Francisco Examiner carried an article by Chris Roberts reporting $11 million had been awarded to City employees in 103 prohibited personnel practice lawsuits. The $11 million was subsequently confirmed to be even higher, at a minimum of at least $12.1 million.
In May 2013, the Westside Observer published my initial article, “High Costs of City Attorney’s Advice” on the costs of retaliation and bullying of City employees.
Following up to obtain fuller data prior to issuing my first update in July 2016, additional data revealed the $12.1 million had grown to $18.6 million, by finally adding in the City Attorney’s time and expenses trying to stop the lawsuits.
Three years later I published a first update in July 2016, reporting that Dr. Derek Kerr had uncovered the underlying data through a public records request to the City Attorney in October 2012, of which I performed a secondary data analysis.
By the time of my first update (July 2016), the City’s costs had grown to $41.6 million through May 29, 2016. By the second update (April 2017), total costs grew again to $58.2 million through March 8, 2017. By the third update (April 2018), costs had risen to $70 million through December 22, 2017. In this fifth article — the fourth update — costs climbed by another $20.7 million in the one-year period between December 23, 2017 and December 14, 2018 to a total of $90.7 million since 2007 — a whopping 649.6 percent change increase since the $12.1 million was reported in May 2013.
Current Update of Lawsuits
After placing a records request on December 13, 2018 to learn how many lawsuits may have been settled in the one-year period between December 23, 2017 and December 14, 2018, the City Attorney’s Office took 41 calendar days in which to respond with corrected information on February 4, after initially providing clearly flawed and incorrect data on December 31, 2018.
It was shocking learning on February 4 an additional 38 lawsuits had been concluded at an increased cost of $20.7 million in the one-year period over the $70 million Westside Observer last reported in March 2018. That’s the largest one-year increase since first beginning writing this series of articles.
A good chunk of the $20.7 million one-year increase involved a class-action lawsuit filed by Muni drivers against the SFMTA on July 16, 2012 alleging violations of Compensation law, in which the drivers were awarded an $8 million settlement. But that doesn’t include the lawsuit’s total costs.
San Francisco Examiner reporter Joe Fitzgerald Rodriguez initially reported on December 25, 2016 that the drivers were likely to earn that award because the MTA had failed to properly pay drivers.
Although the MTA Board approved the $8 million settlement on January 3, 2017, the CAO took its sweet time and didn’t officially close the drivers’ lawsuit until February 28, 2018. More shockingly, when the CAO finally reported the closure of the lawsuit, the CAO revealed it had its spent $746,970 in City Attorney time and an additional $1,884,989 in City Attorney expenses for a total of $2.6 million in addition to the $8 million settlement approved by MTA’s Board.
This single lawsuit cost the City and its taxpayers a total of $10.6 million — half of the $20.7 million one-year increase — because MUNI felt it didn’t need to follow California’s Labor Code!
The Top-Seven Lawsuit Categories
The City Attorney’s Office has 32 separate categories of prohibited personnel practices. As in past year, wrongful termination and racial discrimination lawsuits filed by City employees against the City have accounted for the lion’s share of settlements awards and CAO time and expenses.
Table below illustrates, in part:
• Of the $90.7 million in total costs since January 2007, the 283 concluded lawsuits in the top-seven categories accounted for $77.7 million (85.6%) of the total costs.
• The 57 concluded wrongful termination lawsuits accounted for almost one-quarter of the $90.7 million in total costs, despite representing only 15.9% of the total 359 lawsuits concluded.
• The City spent a staggering $11.1 million trying to stop the 57 concluded wrongful termination lawsuits.
• The 35 sexual discrimination and sexual harassment lawsuits accounted for 9.7% of the total 359 lawsuits, but accounted for $11 million (12.1%) of total costs.
Other oddities in the new one-year data include:
• In the first 103 lawsuits Roberts first reported in the Examiner in 2013, we later learned that the highest amount of CAO litigation costs for a single lawsuit had involved just $529,597. Now the City Attorney apparently feels emboldened to run up costs of litigation in the MUNI drivers’ single lawsuit to $2.6 million. Can anybody say “over-litigation”?
• Fully 18 of the new 38 lawsuits concluded during the one-year period between December 23, 2017 and December 14, 2018 received no settlement awards at all, but the CAO ran up $5.4 million in time and expenses in those 18 lawsuits, 59.8% of the total $8.9 million in CAO time and expenses for all 38 cases.
• On February 4, 2019 the CAO responded to a records request about a previously-reported pending case. Amazingly, the CAO admitted that their “final closing processes” are delayed, and often it has to keep a matter open even though the case is otherwise concluded. The CAO admitted that sometimes it fails to report settlement awards and costs of litigation in some matters when a case is finally closed between records requests.
It is not known how many times in the past this has occurred, or whether the CAO has failed to provide accurate data in the past for lawsuits that are formally closed after a records request for a particular reporting period is provided due to its internal processes for coding the dates individual cases are finally closed. It’s not known how many cases have notbeen included in the running count of 359 concluded lawsuits, and whether the $90.7 million is actually under-reported.
In addition to the oddities noted, there are other problems with the data.
Misclassification of Categories Obfuscates Data
As noted in previous articles in this series, we may never know exactly how many wrongful termination or racial discrimination lawsuits cases have actually been brought by San Francisco city employees, because of the way they are classified by the City Attorney’s Office, which appears to use a different nomenclature to categorize cases than Courts do.
The CAO reclassified a “6035 Racial Discrimination” lawsuit as a “6005 First Amendment Violation” case.
The CAO classified two “6010 Wrongful Discharge” lawsuits as “6080 Disability Discrimination” cases.
• The CAO classified another “6010 Wrongful Discharge” lawsuit as a “6070 General Harassment” case. Another “Wrongful Termination” lawsuit was reclassified as a “6099 Other-Actions” case.
• A lawsuit alleging sex-based harassment by a lesbian supervisor (which would make it a “6060 Sexual Orientation Harassment”) case was classified by the CAO as a “6070 General Harassment” case.
• The CAO classified a “6080 Disability Discrimination” lawsuit as a “9113 Miscellaneous” case.
• The CAO classified a“6050 Sexual Harassment” lawsuit as a “6030 Sexual Discrimination” case.
• The CAO classified a “6055 Racial Harassment” lawsuit as a “6050 Sexual Harassment” case.
Could the San Francisco City Attorney’s Office deliberately be misclassifying various lawsuits into other categories to fudge the actual number of prohibited personnel lawsuits in each category?
San Francisco Taxpayers’ Lost Opportunity
The Board of Supervisors just created a lost opportunity for San Francisco taxpayers.
On December 13, 2018 both the U.S. Senate and House of Representatives passed legislation unanimously in both chambers to reform how sexual harassment lawsuits are handled on Capitol Hill — including holding lawmakers liable for paying for sexual harassment and retaliation settlements out of their own pockets, rather than having U.S. taxpayers foot the bill.
During hearings on amending the City’s existing sexual harassment prevention training Ordinance to cover all forms of harassment against City employees, I urged the Board of Sups to pass legislation similar to the U.S. Senate and House of Representatives by requiring City employee-defendants found guilty of harassment in a court of law to pay settlement costs out of their own pockets. It would have been the surest and fastest way to stop the harassment if perps knew they’d have to pay the settlements themselves. Their misbehavior would stop almost instantly.
The Board of Supervisors turned a cold shoulder and failed to consider and introduce amendments requiring defendants to pay settlements themselves.
As Chris Roberts noted in his April 2013 Examiner article, statewide legislation to make workplace bullying illegal had no sponsors, so the legislation was never introduced. And it hasn’t been introduced since 2013. Just ask Melania Trump how her “Be Best” campaign is going to battle on-line bullying of children. Probably not much better.
Burning this $90.7 million and counting in taxpayer funds in San Franciscans back yards is unconscionable. How long will the problem continue to be ignored at City Hall?
An expanded version of this article with additional discussion, is available on the author’s web site at stopLHHdownsize.com.
Shortage of Elderly and Disabled Healthcare Facilities
Supervisor Yee—Step up to the Plate!
by Patrick Monette-Shaw
Must Prioritize Full Spectrum Health Services
Congratulations to D7 Supervisor Norman Yee on being elected president of San Francisco’s Board of Supervisors!
However, now, Yee needs to pivot quickly to working collaboratively with Supervisors Hillary Ronen and Ahsha Safai, the San Francisco Public Health Department, and other City leaders to address comprehensive solutions to the full spectrum of facilities that all have severe shortages of in-county capacity to serve disabled and elderly San Franciscans, many of whom have been discharged out-of-county.
Turf Fight Erupts
In its December 2017 issue, the Westside Observernewspaper published anarticle reporting that a tug-of-war had erupted between members of the Board of Supervisors over the severe shortage of skilled nursing facilities (SNF) throughout San Francisco.
... omissions and shortsightedness in collecting data affects developing public policy. The problem? Missing data. No data is asked for, none collected. The City doesn’t ask for data. No questions, no data.”
The tug-of-war involved, on the one hand, Supervisors Safai and Ronen who wanted to focus on the hospital-based SNF and sub-acute shortages. On the other hand, Supervisor Yee wanted to focus primarily only on Residential Care Facilities for the Elderly (RCFE’s) and assisted living facilities.
Safai held a first hearing before the Supervisors’ Public Safety and Neighborhood Services (PSNS) Committee on CMPC’s proposed closure of St. Luke’s SNF and sub-acute units on July 26, 2017. On September 12, Safai called the matter from the PSNS Committee for a hearing before the full Board of Supervisors sitting as a “Committee of the Whole.”
During the September 12 hearing Safai noted the lack of SNF and sub-acute care beds had been a “crisis in the making over the past decade … as we’ve seen a major, major decrease in the number of skilled nursing beds over the last ten to 15 years.” Then-Supervisor Jeff Sheehy noted that during the rebuild of Laguna Honda Hospital [during 2007 to 2010] “we knew then that [the City] was projecting a shortage [of] skilled nursing beds, and the reality is that instead of building [additional] capacity, we’ve been shrinking capacity.”
Supervisors Safai and Ronen wanted to explore “in-county, in-hospital solutions for San Francisco.”
They were referring to the “Post-Acute Care Shortage” report presented to the Health Commission in February 2016 documenting San Francisco had a loss of 1,012 SNF beds across 14 years. Tack on the loss of another 151 beds in “freestanding” (i.e., non-hospital-based) SNF beds between 2002 and 2014. That brings the total of lost SNF beds to at least 1,163.
The “Post-Acute Care Shortage” report also documented the loss of 16 “board and care” care facilities and 80 RCFE facilities.
Unfortunately, neither the “Post-Acute Care Shortage” report nor Yee’s most recent December 2018 proposal stratified in raw numbers how many beds have been lost in RCFE and board-and-care facilities.
The Observer reported in December 2017 San Francisco has discharged a significant number of San Franciscans out-of-county due to the shortage of SNF and RCFE beds in-county. Between July 1, 2006 and November 20, 2018 at least 1,479 San Franciscans were discharged out-of-county. That number is probably far higher.
Chinese Hospital, St. Mary’s, St. Francis, and Kaiser each failed to provide the Department of Public Health the number of San Franciscans they discharged out-of-county. The 1,479 known out-of-county discharges hasn’t been completely reported and isn’t fully known.
Yee Threw a Wrench
During the September 12, 2017 hearing, Yee threw a wrench into the proceedings claiming he asked “for a hearing on these issues” last June, ostensibly referring to SNF and sub-acute level of care facilities. He had not.
In June 2017 Yee had called for a hearing to “understand the efforts of City departments regarding institutional housing, particularly assisted living, residential care facilities, and small beds for seniors in San Francisco.”
Yee’s Anemic Efforts
The Observer reported in March 2018 Yee had been first approached to support a 50-unit senior housing project at 250 Laguna Honda Boulevard. Before anyone knew it, the developers expanded it to a 150-unit project that was eventually de-funded and scrapped.
Yee’s First Proposal to Build on LHH’s Campus
The Observer reported in July 2018 that in March 2018 Yee’s then-legislative aide, Nick Pagoulatos, began pitching a proposal in March 2018 to the Department of Public Health (DPH) and the Mayor’s Office of Housing (MOHCD) to build a six-story building with up to 160 units of housing for seniors on LHH’s campus, with a spectrum of options for those who need assisted living, skilled nursing, and independent living (presumably including market-rate units).
Pagoulatos submitted a draft document on May 15, 2018 to MOHCD’s director Kate Hartley and Amy Chan, and DPH outlining a proposal to Assemblyman Phil Ting seeking funding for a feasibility study. Hartley and Chang deleted both the 160-unit description, and flatly ruled out building either assisted living or RCFE’s units on LHH’s campus, saying LHH’s site “wasn’t big enough” and was too small.
Yee’s first May 2018 proposal to build on LHH’s campus was essentially dead on arrival.
Yee’s Second Proposal to Build on LHH’s Campus
Undeterred, Yee tried again proposing to build on LHH’s campus. In a draft position paper dated December 18, 2018 on his letterhead Yee pitched constructing a “Life Care Facility” (similar to Continuing Care Retirement Communities) to San Francisco’s new Dignity Fund proposing a spectrum of facilities on LHH’s campus, including 1) An unstated number of independent senior housing units (perhaps including market-rate units); 2) An unstated number of assisted living units; 3) a 30-bed RCFE, several of which beds would be “kept open” for patients discharged from LHH; 4) Ideally, an unstated number of Adult Day Health Care (ADHC) slots for people needing day-care supervision; and 5) Ideally, preschool to foster “intergenerational connections” between the elderly and two- to three-year-old preschoolers.
LHH voluntarily suspended it’s “outpatient” ADHC serving about 60 people daily on March 20, 2009 but continued paying state licensing fees from November 16, 2009 through June 30, 2013. LHH allowed the license to expire on November 15, 2013. At least 91 ADHC clients — including ten with Alzheimer’s — were impacted by LHH’s ADHC closure.
I became a formal whistleblower in January 2009, reporting to the City Controller’s Whistleblower Program and the U.S. Department of Justice’s Civil Rights Division that closure of LHH’s ADHC program was a probable violation of a DOJ settlement agreement reached with the City of San Francisco.
Yee’s position paper acknowledges many older adults will eventually need to move to skilled nursing facilities due to increased mobility impairments and chronic medical issues, but his position paper doesn’t discuss increasing the severe shortage of SNF beds in-county by building more SNF units on LHH’s campus or elsewhere in the City.
In fact, Yee’s December 2018 position paper explicitly states in paragraph 5 that the “bleeding of beds continues to this day, without any plans for the City to address this issue.” That’s in the same paragraph in which Yee acknowledges both “low - and middle-income residents are being placed out-of-county.”
Yee’s grand plan for LHH’s campus will be vigorously opposed by the Dignity Fund and the Mayor’s Long-Term Care Coordinating Council (LTCCC), whose shared members vigorously opposed building any more healthcare-related units on LHH’s campus in 2007. Why would they support it now?
Thirteen days later, an Assisted Living Workgroup — a group Yee formed in April 2018 with DPH and the Department of Aging and Adult Services (DAAS) — presented recommendations on January 10, 2019 to the LTCCC. The report primarily recommended Adult Living Facilities (ALF) should be supported by the City in smaller six-bed facilities using subsidies, but not expanding the supply of new facilities.
The Workgroup’s report noted “data to document demand is limited, and systems are typically not set up to document the need” for various services.
Lack of Data No Surprise!
The Observer reported in May 2017 the Board of Supervisors Budget and Legislative Analyst (BLA ) issued a report in July 2016 (“Audit of Senior Services in San Francisco”) highly critical that DAAS has failed for years to conduct meaningful data collection via a gap analysis.
A Gap Analysis estimates unmet needs for particular services — the gap between the number of individuals currently receiving a service and the total population that might benefit from a particular service. Without a robust Gap Analysis, DAAS (and DPH) lack critical information during decision-making.
Ombudsman Benson Nadell’s Concerns
Benson Nadell, a State employee who is San Francisco’s Long-Term Care Ombudsman advocating for patients, and who investigates complaints of abuse in the City’s SNF’s, assisted living, and board-and-care facilities remains concerned.
On January 2, 2018 Nadell presented testimony about how omissions and shortsightedness in collecting data affects developing public policy. The problem? Missing data. No data is asked for, none collected. The City doesn’t ask for data. No questions, no data.
“Data can only flow from existing data. Until the right questions are asked by City and County leaders, long-term care policy will be skewed towards those questions that are asked. Data will always be missing in this context.”
CANHR: Concerns About RCFE’s, Assisted Living Facilities, and CCRC’s Lack Focus on Healthcare
In early January 2018, the California Advocates for Nursing Home Reform (CANHR) issued a blistering report noting that during the past 20 years residents of RCFE’s are “older, sicker, and have more complex medical and care needs,” and RCFE’s now resemble nursing homes of years past. CANHR’s report notes the outdated “social model of care” (favored by San Francisco’s disability rights advocates, the Dignity Fund, and the LTCCC) has all but ignored the health care needs of RCFE and assisted living clients whose acuity levels have worsened. The CANHR report is very critical of Continuing Care Retirement Communities — such as the “Life Care Facility” Yee is proposing for LHH’s campus — for not focusing on provision of healthcare facilities.
Focus on Data Collection!
Back in 2013, the Department of Public Health and the Planning Department jointly developed a Health Care Services Master Plan (HCSMP). There was no section in the Plan to focus on long-term care healthcare services in the City.
The HCSMP is now being updated.
What these organizations fail to measure, they can’t accurately assess or fix, particularly without gap analyses measuring client preferences.
Yee needs to expand his focus to include SNF and long-term care facilities in addition to RCFE’s and assisted living facilities, and he needs to do so citywide, not just on LHH’s campus.
The Board of Supervisors under Yee’s leadership must mandate that private-sector hospitals report their out-of-county discharge data to DPH.
As Dr. Teresa Palmer, a geriatrician who worked at LHH for over 20 years notes, “If we don’t know how many folks have been forced to leave the county for long-term care, how can we plan for what San Franciscans need if we don’t collect the relevant data?”
Monette-Shaw is a columnist for San Francisco’s Westside Observer newspaper, and a member of the California First Amendment Coalition (FAC) and the ACLU. An expanded version of this article is available at stopLHHdownsize.com. Contact him at email@example.com.
Click here for older columns by Patrick Monette-Shaw (Please view on desktop computer for best experience while we convert our older files to mobile).
The federal subpoena demanded the resumes, job descriptions, and performance evaluations for “any PUC employee who earned at least $100,000” since 2010 ... Evidently, the feds are probing cronyism as well as self-dealing
Whether it’s protests about police violence and racism or defiance of government orders to wear a mask, the most fundamental issues of our democracy are being played out every day in front of millions of people.
Irreparable Damage to City College — Legal Violations at Balboa Reservoir Project Cited
City College Stakeholders File CEQA Appeal"This is NOT the time for any Project to go forward that will all but destroy the access for 70,000 college students, most of them from working class, immigrant, black or brown communities."
"... the heralded notion of "defunding" police ... risks a return to the high-crime era of the 1960s and 1970s that damaged so many American cities. That applies to San Francisco, which suffers supervisors who berate police and ostracize them politically."
"... the issue of Black Lives Matter is on everyone’s lips. Unfortunately, many Americans do not acknowledge institutional racism. But consider the numerous steps that led to the problem and two alternative policing solutions."
Hopes were that recovering from COVID-19 would generate antibodies, thus conferring immunity and peace of mind. Plus, survivors could help treat newly-infected COVID-19 patients by donating their convalescent plasma. It's not that simple.