Fentanyl & Meth Push Overdose Deaths to Record Highs

by Dr. Derek Kerr

There’s another deadly epidemic in the City. Until now, San Francisco’s robust drug treatment and harm reduction programs had forestalled the opioid overdose epidemic sweeping the nation. A 2/18/20 DPH Press Release and Health Commission presentation detailed how fatal drug overdoses surged to a projected 400 cases in 2019. Deadlier than homicides, suicides and traffic accidents combined, drug overdoses are now primarily driven by fentanyl. Most casualties are men, 40 to 59 years old, and disproportionately African-American.

Fentanyl

A potent and fast-acting opioid, fentanyl is about 100 times more potent than morphine and 50 times stronger than heroin. Formulated in 1959 to control pain from cancer or surgery, fentanyl was later adopted by drug traffickers because it’s cheaper to produce and easier to smuggle than heroin. As detailed in journalist Ben Westhoff’s book, Fentanyl, Inc., it mostly comes from China where chemical companies synthesize recreational drugs with government subsidies. These labs produce fentanyl variants or precursors that haven’t yet been declared illegal in China and ship them to US clients and Mexican cartels. Ironically, criminalizing heroin has spawned a more toxic substitute.

Fentanyl is supplanting Mexican black-tar heroin, long a mainstay of San Francisco’s drug scene. It emerged as an additive mixed into various street drugs to give them more “kick”. Despite its potential lethality, fentanyl is becoming the street opioid of choice because it’s cheaper and delivers a better rush, per Dr. Phillip Coffin, DPH’s Director of Substance Use Research. Because the purity of street fentanyl varies, users don’t know the dosage taken, hence the overdoses. Data Dr. Coffin shared with the Westside Observer shows that fentanyl-related deaths have doubled annually since 2015, reaching 162 in 2019. But that’s a partial count due to the 6-month delay in processing autopsy and toxicology results. DPH projections for 2019 foresee around 200 fentanyl-linked overdose deaths. Fentanyl fatalities far exceed heroin plus prescription opioid deaths.

To counter the overdose epidemic, the DPH employs a Harm-Reduction model. This includes sending alerts to shelters and clinics, freely distributing naloxone (Narcan) a drug that reverses opioid overdoses, providing fentanyl testing-strips so users can check their stash, and planning drug sobering centers. Needle access programs are advising users to smoke rather than inject fentanyl and offer aluminum foil to facilitate this safer option. The DPH also reaches out to single-room occupancy hotels where 30% of overdose deaths occur, advising drug users not to shoot up alone. Treatment strategies include easing access to methadone and buprenorphine (Suboxone) substitution programs. Once implemented, Mental Health SF will expand these services.

Methamphetamine

Methamphetamine is largely produced by Mexican cartels that import the chemical precursors from China. Like cocaine, it’s a stimulant but longer-lasting and cheaper. Meth-related overdose deaths have steadily risen over the past decade. However, the numbers exploded in 2019. As the Medical Examiner told the WSO, the tally for 2019 was 227 deaths as of March, with a projected total of 252. That’s double the 126 meth deaths logged in 2018. Apart from overdoses, the DPH found that 47% of Psychiatric Emergency visits in 2017-18 were meth-driven.

Although no medications can reverse methamphetamine overdoses or block cravings, a promising approach is Contingency Management, whereby users receive cash rewards for staying clean. Senate Bill-888, introduced by Senator Scott Wiener, would provide Medi-Cal coverage for this intervention. Based on DPH Methamphetamine Task Force recommendations, a 12-bed Meth Sobering Center with access to counseling and treatment will open in the Tenderloin this year.

Overdose Deaths and Prevention

Overdose deaths refer solely to acute drug poisonings. They exclude drug-related deaths due to suicide, traumatic injuries, and infections. Also excluded are alcohol related deaths that are categorized differently. Because most overdoses involve multiple drugs, it’s difficult to determine which one was lethal. For example, 80% of methamphetamine overdoses involve other drugs - mostly fentanyl. So fentanyl contributes to the rising fatalities attributed to meth, cocaine and heroin. When one death is caused by 2 drugs, it generates 2 drug-associated death reports. That’s why the sum of individual drug-related fatalities exceeds the number of deaths.

Overall, opioids, meth and cocaine have already claimed 330 lives but are projected to reach 400 once all reports for 2019 are compiled. That’s a big jump from the 259 deaths recorded in 2018.

Overall Drug Overdose Deaths by Year

There’s more to this carnage because many deaths are narrowly averted. EMS technicians administered 1,647 doses of Narcan in 2018. Many more were administered by police officers and civilians. In 2018, the DPH Drug Overdose Prevention Education Project (DOPE) handed out over 7,500 Narcan kits.

Why are overdoses exploding? It’s not simply due to the increased homeless population. DPH data show that from 2006 to 2016, injection drug users increased from fewer than 10,000 to almost 25,000 – yet the overdose mortality stayed flat. And it isn’t due to the national prescription opioid epidemic. Local prescription overdose deaths have steadily dropped since their peak 2010. The breakdown in the City’s containment efforts came with the greater availability and desire for fentanyl - and meth.

To curb the availability of dangerous drugs, the US Attorney for San Francisco launched a one-year crack-down on dealers and suppliers last August. This “Federal Initiative for the Tenderloin” started by busting a Honduran crew of 32 drug traffickers who commuted from the East Bay. This intervention gave residents a welcome respite from an intimidating open-air drug market. Yet, prior drug raids by the SFPD faced criticism for targeting minorities. Though needed, such enforcement measures bring transitory relief.

Our overdose epidemic gives reason to establish Supervised or Safe Injection Sites like those in Canada and Europe. As reported in the September 2017 WSO, Safe Injection Sites (SIS) can prevent overdoses, reduce infections, and facilitate addiction treatment, but may relieve a fraction of the problem without improving it overall. Participation by drug users is low due to registration requirements and the stronger allure of the street scene. A DPH survey showed that more City users wanted “food and showers” than drug treatment from an SIS. Injection sites hardly address the traumas and despair that drive addiction.

San Francisco’s 3-year quest for SISs has been thwarted by federal prohibitions and opposition from State law enforcement groups. Hopes that the State would protect SIS operators were dashed when Governor Brown vetoed Assembly Bill-186 in 2018. Brown called the bill “all carrot and no stick” for “enabling illegal and destructive drug use” without requiring treatment for addiction. With Governor Newsom in office, an identical AB-362, co-authored by Senator Scott Wiener and re-branded as an “Overdose Prevention Program” was introduced in 2019 to allow a City SIS. This February, Supervisor Matt Haney called on the Governor to issue an Executive Order for an “Overdose Prevention Site” in San Francisco.

Hopes soared this February when Philadelphia got Federal Court approval for an SIS by showing that it aims to decrease rather than enable drug use, thereby not violating federal law. However, a public backlash and threats from the local US Attorney torpedoed the plan. Although Mayor London Breed introduced legislation on 3/3/20 for a City-run SIS, US Attorney David Anderson who orchestrated the Tenderloin drug raids vows to shut it down. Uncertain is the impact of the COVID-19 pandemic on efforts to contain the opioid epidemic.

All told, the DPH funds 65 programs to provide drug and alcohol treatment services – a good chunk of its $400 million mental health budget. Contractors served 5,975 substance abuse clients last year. Yet on 2/18/20, the DPH failed to show the Health Commission that its many - and costly - interventions are still effective. The swarm of overdose deaths, drug-related Emergency Room visits and hospitalizations indicate that City programs are falling short. DPH officials and non-profit contractors call for more services. There’s a “carrot” versus “stick” divide between the City’s approach and Federal interventions. More integration would be better than more of each.

Dr. Derek Kerr is a San Francisco investigative reporter Contact: watchdogs@westsideobserver.com

April-May 2020

Court Upholds $5 Million Whistleblower Judgment against City Attorney Herrera

The Court of Appeal vindicated whistleblower Joanne Hoeper, the former Chief Trial Deputy under City Attorney Dennis Herrera. Three judges sustained a January 2015 jury decision that Herrera retaliated against Hoeper after she investigated the City Attorney’s Claims Bureau and found multiple costly irregularities in the way sewer repair claims were handled.

Some sewer claims were fraudulent but routinely approved by the Claims bureau, at taxpayer expense, as detailed in the Westside Observer in September and November 2014, and February 2015. When Hoeper’s probing threatened managers close to Herrera, her investigation was shut down and she was yanked from her position in July 2012. She was transferred to the DA’s Office and later terminated. The WSO dubbed the saga “Sewergate.” In 2018, the NorCal Society of Professional Journalists recognized Hoeper with its Freedom of Information Award in the Whistleblower category.

The Court of Appeals sustained Hoeper’s awards of $1,338,578 for lost wages, $1,291,409 for emotional distress and $2.4 million for attorney’s fees. The City argued that these awards were unwarranted and excessive. The Court characterizedthe City’s appeals as “without merit”. Taxpayer costs will exceed $5 million since the City has been paying the Keker & Van Nest law firm $850/hour to defend Herrera. Keker & Van Nest already billed the City $2,267,752 back in September 2016, records show. Karl Olson, one of Hoeper’s attorneys, told the WSO that the City could ask the California Supreme Court to review the case, but only 5% of such Petitions for Review are granted. (See Ms. Hoeper's  Op-Ed — A special to the Westside Observer)

February 2020

Auto Burglars Assail Westside, East Bay and Migrate to LA

by Dr. Derek Kerr

Although citywide auto burglaries seemingly dropped 2% in 2019, they soared by 24% on the Westside. The table below is derived from the Taraval Police Station’s excellent website. Note the surge in auto burglaries since August.

As explained in the July 2018 Westside Observer, these numbers are static. They are not updated to include late crime reports. Such updates are logged into SFPD’s separate CompStat database. Therefore, the crime figures reported on Taraval Station’s website are lower than those shown on CompStat for the Taraval Police District. For example, CompStat’s updates boosted Taraval Station’s 2017 count of car break-ins by 9% and raised its 2018 count by 5%. Ergo, the true numbers for 2019 will end up higher as well.

The bleak news about Taraval District car break-ins is offset by a big drop in residential and commercial burglaries. CompStat shows that in 2019, home and shop burglaries numbered 334 versus 507 reported in 2018 – a 34% decline. That may reassure Sunset residents. As the July 2019 WSO reported, home invasions and burglaries prompted an uprising in that predominantly Asian neighborhood.

According to citywide CompStat figures, there were 25,677 car break-ins in 2019 versus 26,111 in 2018. That 2% drop is dubious. By the time all the delayed reports for 2019 are tabulated, the updated total could easily wipe out the tiny reduction. On top of this, published numbers are understatements. Folks without comprehensive auto insurance don’t bother to report break-ins when arrest rates linger around 2%. However, compared to the stunning 31,398 thefts from vehicles in 2017, the crime wave has subsided.

The stabilization in citywide car break-ins masks a shift in crime targets. Auto-boosters are moving from tourist sites to residential areas – like the Westside, and even Safeway parking lots per the 1/31/20 SF Chronicle. As police monitor tourist sites, criminals seek opportunities for easier pickings elsewhere

San Francisco isn’t suffering alone with this epidemic. East Bay auto break-ins soared in 2019. Compared to 2018, there were increases of 25% in Oakland, 32% in Berkeley and 48% in San Leandro. As reportedin the 1/10/20 SF Chronicle, East Bay police agencies have formed a “roving task force” to crack down on auto burglars, one city at a time. It gets worse.

This January, the Los Angeles Times described a new crime trend plaguing LA since 2019. Audacious Bay Area gang members have been traveling to LA in rental cars to steal belongings from autos parked at tourist destinations. Criminal tourists now prey upon regular tourists. After scouring parking lots for out-of-state license plates and rental cars, they brazenly break windows in broad daylight - even in view of surveillance cameras.

Because Bay Area smash-and-grab crews are known to local cops, they hit the road to ply their trade where they enjoy anonymity. So, LA detectives are sharing data with their Bay Area counterparts to track these touring gangsters. That data includes social media where thugs like to brag about their exploits. Last April, an Oakland gang committed 40 auto burglaries in Hollywood, using electric scooters to hustle the goods away. The stolen merchandise was sold in Oakland and 5 people were arrested.

What’s happening closer to home? The WSO asked Taraval Station’s Captain Nicholas Rainsford to comment on Westside car break-ins. He indicated that he was reviewing the crime data with his staff, but provided no further comment.

Dr. Derek Kerr is a San Francisco investigative reporter Contact: watchdogs@westsideobserver.com

February 2020

Cannabis Quagmire Foils City’s Goals

by Dr. Derek Kerr

Cannabis in San Francisco, the 12/5/19 Controller’s Report on the legalized adult-use/recreational marijuana industry, shows how efforts to curb the illegal market while helping those injured by the War on Drugs can backfire.

In 2016, 74% of San Francisco voters passed California Proposition 64, allowing the production and sale of cannabis for adults over 21 without a prescription. Since January 2018, these recreational marijuana products have been tracked from “seed to sale” to ensure consumer safety and prevent illegal diversion.

Doors are open at 2161 Irving St.

With this mandate, the Board of Supervisors passed Ordinance 229-17 that keeps cannabis businesses 600 feet away from schools and largely in Eastside locations and along commercial corridors. Then Ordinance 230-17 set up a permitting process. It included an Equity Program that prioritized persons disadvantaged by the War on Drugs, and an amnesty program so some illicit operators could enter the legal market by complying with regulations. The Office of Cannabis was set up to manage these processes. The Controller’s Office monitors the impacts of permitted cannabis operations.

Cannabis Storefront Retailers in San FranciscoStorefronts are heavily clustered in the Mission District and along the Market Street corridor. Note: Delivery-only retail operators not shown.

The land-use Ordinance worked, as shown by the Office of Cannabis location map. At this time, the only Westside storefront dispensary that offers both recreational and medicinal cannabis is Barbary Coast Sunset at 2161 Irving Street, because the two on Ocean Avenue are closed for renovations. But the permitting Ordinance created a self-defeating solution.

REGULATORY LOGJAM: Although 212 cannabis businesses are authorized, only 118 are currently operating. That’s way less than the 387 operating in Oakland. Of these 118 operating businesses, 39 are store-front retailers and all were pre-existing or pre-approved Medical Cannabis Dispensaries. Likewise, the authorized delivery-only retailers, growers, manufacturers, and distributors were already in place. New businesses have been stymied. That’s because Equity Program applicants hold top priority. By City law, no other applicants can be considered until the equity entrants get 50% of all permits issued. Only three equity entrants have been approved to date, hence the backlog.

EQUITY REVERSAL: Equity Program applicants must meet strict criteria involving income, City residency and school attendance, loss of housing, or arrests for cannabis-related crimes. Then, they need departmental approvals from SFPD, Cannabis, Planning, Public Health, Building Inspections and Fire, where equity applicants get no priority. Because of this grueling complexity, and because the Office of Cannabis has just 3 full-time equivalent employees, it takes 18 to 24 months to get a permit. Languishing in the pipeline are 133 equity applications - just for store-front dispensaries. Another 144 await approvals for delivery-only outfits or cultivation, manufacturing or distribution operations. The backlog is so bad that new equity applicants face an additional 6 month delay before being considered. As for non-equity applicants, they’re shut out entirely.

Meanwhile, equity applicants are crushed by expenses since they must maintain a site for their proposed businesses. Rent alone can amount to hundreds of thousands of dollars while waiting for a permit. So, already-disadvantaged equity applicants are forced into debt. Or, they sell ownership shares to well-heeled investors or multi-state cannabis companies. Either way, the aims of the Equity Program are thwarted.

Although a Community Reinvestment Fund was set up to offset costs for equity applicants, it hasn’t been funded. The City fears liability for aiding sales of a federally-outlawed drug. Further, there are so many applicants for store-fronts that the market will be saturated before they’re all approved, per the Controller’s analysis.

As for the black-market entrepreneurs who opted to go legit, they’re stuck in the permit queue. Many will revert to the thriving illicit market that dwarfs5 the legal upstart by a factor of 3 to 1. As the Report concluded; “The City has undermined its own equity goals and intent to eliminate the illicit market.”

ECONOMIC BURDENS: This quagmire burdens taxpayers. The Office of Cannabis makes money from permit application and renewal fees. In 2018-19 it collected $360,000, about half of its operating budget. Those fees came from existing businesses. But in 2019-20 it will collect zero application fees due to the logjam. Yet, its operating budget will top $1 million. Deficits will persist until the Office of Cannabis clears the backlog. By counting expenses for all 12 City departments supervising the cannabis industry, the cost to taxpayers exceeded $2 million in 2018. So far, cannabis sales taxes covered these losses. That may not last. After 3 years of steady increases, taxable sales declined by 16% then leveled out in 2019. Statewide cannabis sales saw a similar decline. Regulatory tangles and black-market competition are cramping tax revenues. Meanwhile, legal cannabis prices are rising and driving buyers to the illegal market.

Retail Storefront Locations of Proposed Equity Business (currently in queue). Out of 183 applications from equity applicants,133 are applying for storefront retail. The proposed locations are heavily concentrated in Civic Center, Union Square, the Mission and SOMA

PUBLIC SAFETY PRESERVED: In 2006, the City assigned marijuana offenses the lowest policing priority. Since then, cannabis arrests have steadily declined, although African-American men are still disproportionately affected. SFPD incident reports show a 17% drop in cannabis offenses – down to 186 cases, after adult-use was legalized. However, this number does not include low-level infractions. In 2018, cannabis offenses comprised 0.1% of recorded City crimes. As for marijuana-related complaints reported via 311, there were 15 or 0.003% of 2018 calls. The Westside enjoys the lowest incidence of cannabis-related crimes; Taraval Police Station logged just 4% of the City’s 2018 total.

In accord with other studies, the Controller’s Report found that property and violent crimes within 600 feet of cannabis retailers dropped by 2%, whereas they increased citywide. Larceny theft and burglary prevailed around cannabis dispensaries – but also throughout the City and at similar rates. Since dispensaries cluster in commercial zones, the Controller’s Report concluded; “…crime that occurs near cannabis locations is likely driven by the crime occurring in commercial districts, rather than the notion that cannabis operators attract more crime”.

California Highway Patrol records showed that cannabis-only stops for San Francisco amounted to 4% of all DUIs in 2018. Those 31 cases were 10 more than in 2017, a post-legalization increase. However, alcohol-only DUI’s also increased and comprised 82% of DUIs. The remaining DUIs involved other drugs or mixtures, including 3% where cannabis was used with other intoxicants.

PUBLIC HEALTH CONCERNS: When adult-use cannabis was legalized, the City aimed to ensure safe consumption and limit access for young people. Current data for San Francisco is lacking, but in Colorado, where recreational marijuana was legalized in 2012, there was no change in youth use rates. National surveys show that cannabis use among youth decreased - even as many states legalized marijuana.

According to SF Unified School District surveys, suspensions for drug possession (largely marijuana) went up. But the numbers are small. There were 57 suspensions in 2018 compared to 44 in 2017 – among 50,000 students. Of concern is the popularity of vaping, given the outbreak of life-threatening pneumonias likely caused by a Vitamin E additive. California has logged 208 cases and 4 deaths to date. The SFDPH hasn’t responded to our requests for data on San Francisco cases. Cannabis edibles pose another risk. Their onset of action is slow, so overdosing is easy. In February 2018, multiple students were sickened after eating edibles on campus, but that was an isolated event. These risks are being addressed in a DPH student education campaign.

Cannabis-related emergency department visits steadily increased over the past decade, well before adult-use cannabis legalization. Since marijuana is no longer criminalized, this trend may reflect increased reporting. Patients are now more likely to admit they are users. At SF General Hospital (SFGH), cannabis-related visits and admissions have increased slightly since 2018. Again, the numbers are small, averaging less than 1% of Emergency Room encounters. On the other hand, cannabis admissions to DPH Substance Abuse Treatment Programs have declined. In 2018, just 355 or 4% of admissions were for marijuana. Per the Controller, these numbers do not signal a need to reduce cannabis, just further monitoring.

The Office of Cannabis has rallied City departments to streamline the permitting process. To further support applicants, a $1.3 million grant was secured along with pro bono legal assistance from the SF Bar Association. An 8-member Cannabis Oversight Committee, inaugurated in December 2019, will advise the Board of Supervisors and “facilitate socially responsible growth of the cannabis industry.” Hopefully, it will help to tackle the snafus and recommendations detailed in the Controller’s Report.

Dr. Derek Kerr is a SF investigative reporter. Contact: watchdogs@westsideobserver.com

February 2020

A Precarious Partnership:

SFPD and the FBI

Supervisor Gordon Mar opens the hearing investigating the Joint Terrorism Task Force

by Dr. Derek Kerr

In its July report, Joint Terrorism Task Force: Balancing Public Safety with Civil Rights, the Civil Grand Jury recommended that the SFPD reconsider its expired counter-terrorism partnership with the FBI. Although the Jury did not recommend for or against re-affiliating with the FBI, the Mayor, Police Chief and Police Commission responded cautiously. Not mentioned was the turd in the punch bowl – a secret FBI White Paper acknowledging grave conflicts between SFPD policies and those of the FBI’s Joint Terrorism Task Force (JTTF). The SFPD received the White Paper in 2017, but couldn’t disclose it. Superior Court ruled it was “property of the FBI.” (Case CFP-19-516706) The FBI released it to Supervisor Gordon Mar this October.

Joint Terrorism Task Forces (JTTF) are FBI-led partnerships with local police and other law enforcement agencies that address national security threats. After the events of September 11, 2001 the SFPD joined the regional JTTF in 2002. That arrangement was secretly renewed in 2007, adding tighter FBI controls and secrecy, without notifying the Police Commission. When its contract with the FBI expired in February 2017, the SFPD bailed out amidst mounting civil rights concerns and the turmoil of switching its Police Chiefs.

San Francisco Taxpayers Tapped Previously, the SFPD had usually assigned 2 full-time investigators to the JTTF under the direction of the local FBI Office, and ultimately the US Attorney General. However, City taxpayers paid their salaries. These officers received Top-Secret security clearances and access to classified data. Their identities were secret. They signed non-disclosure agreements that barred information sharing without FBI approval, and underwent polygraph exams. As federal deputies, they could operate anywhere in the US. As such, they could maneuver beyond local civilian oversight and local privacy and civil rights laws. Nominally, they were expected to abide by such laws, notably SFPD’s Department General Order 8.10: Guideline for First Amendment Activities.

Supervisors Weigh In DGO 8.10 was designed in 1990 to prevent police intrusions into religious gatherings, protests, and political assemblies. In the post-9/11 era, unwarranted JTTF practices began impinging on civil rights. Alarming reports and warnings were issued by the Human Rights Commission, San Francisco Bar Association, ACLU, and 79 civic groups represented by the Asian Law Caucus, Council on American Islamic Relations and the ACLU. Accordingly, in 2012 the Board of Supervisors unanimously passed the Safe San Francisco Civil Rights Ordinance to govern SFPD participation in federal counter-terrorism activities. The Ordinance enshrined within City law the gist of DGO 8.10’s transparency and accountability provisions. It also mandated Police Commission approval of agreements between the SFPD and FBI. In effect, the law authorized SFPD brass and City officials to oversee its FBI-driven JTTF investigations

That expectation proved unworkable because the FBI included “threat assessments” in its “classified” investigative activities. FBI “assessments” seek information about persons who may threaten national security or violate federal laws. Unlike formal investigations, no “reasonable suspicion” of criminality is required. In 2008, revised standards allowed more intrusive practices like pretext interviews, physical surveillance, telephone record searches and deploying informants, all without evidence of wrongdoing. Anyone could be targeted based on a tip or politics, religion or race, thereby landing on a federal “terror watch list”. Despite the slippery taxonomy, “assessments” are investigations that can circumvent criminal justice principles and First Amendment rights. And they are classified.

SFPD and FBI Conflicts As the FBI White Paper admits, such assessments were “generally assigned” to SFPD officers working as JTTF agents. Further, these assessments “usually involve, on some level, the exercise of First Amendment activities.”

This conflicts with SFPD policy because DGO 8.10 requires officers to submit memos showing “reasonable suspicion” of a crime to justify investigations involving First Amendment activities. And these memos must be approved in writing by two superiors plus the Chief of Police. But, per the FBI White Paper, “The FBI will not allow such disclosure.”

There’s more. DGO 8.10 states that the memos and approvals for investigations must be reviewed monthly by the Police Commission and audited annually by the Department of Police Accountability. Per the White Paper, “The FBI will not allow this type of information to be disseminated.”

ACLU Lawyer John Crew

Accordingly, none of the 119 assessments/investigations conducted by SFPD’s JTTF agents from 2014 through 2016 received departmental approvals. None were forwarded to the Police Commission or the Department of Police Accountability, records show. That’s because none targeted “solely constitutionally protected activities” as the SFPD repeatedly told the Police Commission. But, “That’s the FBI standard – not the SFPD standard”, declared former ACLU attorney and police practices expert John Crew and several Commissioners at the explosive 2/1/17 meeting. Plainly, DGO 8.10 requires approvals and oversight for investigations that “involve” First Amendment activities, not just those that “solely” target such activities. The SFPD had been bending, if not violating, its own rules by adopting FBI investigative and secrecy tenets.

Worse, SFPD’s JTTF activities defied the oversight imposed by the Safe SF Civil Rights Ordinance. Because JTTF activities are classified, they were withheld from SFPD brass, the Police Commission and the Department of Police Accountability. Those folks lack security clearances. Indeed, the Police Chief’s annual JTTF reports to the Police Commission merely assert proper conduct, without evidence. The FBI White Paper addresses this disclosure impasse by proposing workarounds including, “sanitizing” JTTF reports, or amending DGO 8.10 to withhold “classified information” from the Police Commission.

Secrecy in Violation All this secrecy surrounding JTTF investigations nullifies the Civil Grand Jury’s assurance that it “did not detect any instance of non-compliance with a DGO” by SFPD’s JTTF officers. This point was highlighted by former FBI counter-terrorism expert Mike German at the must-see Government Audit & Oversight Committee hearing on 10/3/19. Further, an egregious violation did occur in 2014 when an SFPD JTTF agent badgered a Google engineer for filing a public records request. Inspector Gavin McEachern reportedly interrogated Sarmad Gilani about his “delusions of being persecuted” and tried to recruit him as an informant. The Department of Police Accountability determined that the officer had accepted an FBI assignment against SFPD policy due to “inadequate training”. Like all other JTTF assessments, it hadn’t been authorized by SFPD’s chain of command or audited by the Police Commission or the Department of Police Accountability.

JTTF partnerships are precarious because FBI policies protecting privacy and civil rights are weaker than those adopted in San Francisco and California. And those protections can be slashed, depending on the US Attorney General and President. As local politicians including Mark Leno, Scott Weiner, Jeff Sheehy, Tom Ammiano, David Campos, Rafael Mandelman and Angela Alioto warned in 2017: “if this (Safe SF Civil Rights) Ordinance is not effectively enforced…local offices will become entangled in the implementation of Trump’s policies, which our city’s leadership and residents have unequivocally rejected.” On the other hand, the Police Officer’s Association asked the Police Commission to restore its JTTF partnership, decrying that it was abandoned “in a political stunt.”

Currently, JTTF policies are antithetical to transparency and accountability. Upholding DGO 8.10 and the Safe San Francisco Civil Rights Ordinance keeps the SFPD accountable to the community it serves rather than the FBI. Involvement in JTTF political surveillance entrains our police to view First Amendment activities as potential threats. Worse, more law-abiding San Franciscans view police as potential threats because unreasonable JTTF activities contravene civil rights. There are other ways the SFPD and FBI can collaborate to address terrorism. Uncoupling from the JTTF, as Portland, Oregon has done, strengthens public trust in the SFPD.

Note: Source references for this article are provided as links in the electronic version at www.westsideobserver.com.

Acknowledgement: Mission Local and The Intercept first reported on the FBI White Paper.

Dr. Derek Kerr is a SF investigative reporter. Contact: watchdogs@westsideobserver.com

December 2019

CNO Madonna Valencia with Supervisor Norman Yee

Hedging the Shake-Up at Laguna Honda Hospital

by Dr. Derek Kerr

Three months after Laguna Honda Hospital (LHH) CEO Mivic Hirose and Quality Director Regina Gomez were ousted, another top executive has fallen. On Sunday, October 7, Acting CEO Maggie Rykowski announced, “Madonna Valencia, our Chief Nursing Officer, has left Laguna Honda Hospital.” By adding “We should think of this as an opportunity for us to welcome meaningful changes to our standards, reputation and purpose,” she tied Valencia’s exit to the patient abuse scandal covered in the September Westside Observer.

Restoring LHH’s standards, reputation and purpose won’t be easy given the long tenure of disgraced former CEO, Mivic Hirose. Hirose served as Associate Director of Nursing since 1999, then as Chief Nursing Officer from 2005, and finally as CEO from 2009 until the scandal emerged this June. Over those 20 years, Hirose helped shape the hospital’s culture. Lackeys were recruited, mentored and boosted into positions of power. As reported in the February 2016 Westside Observer, some nurses openly denounced “favoritism, nepotism and cronyism” at LHH. Rykowski’s challenge will be to manage and transform her predecessor’s entourage.

The long-delayed departure of Valencia is intriguing. After all, she was directly responsible for overseeing the deviant nurses who abused 23 patients as well as their negligent supervisors. Retaining Valencia while suspending the Quality Director looked like scape-goating. The palatable rationale for keeping Valencia was to avoid the disruption of deposing 3 key executives concurrently. Incidentally, delays can stifle personal injury claims against the City, as these must be filed within 6 months.

LHH Medical Director, Dr. Michael McShane

Using the passive term “has left” for Valencia’s exit is interesting. In fact, records show that Valencia was demoted to a Nurse Manager job paying $202,852/year elsewhere within the DPH. Similarly, the ex-CEO’s “resignation” masked a soft-landing into a well-paying job at SFGH. Such reassignments avoid recriminations from folks who know where skeletons are buried. Given the swirl of investigations by State and City agencies, more carefully calculated transfers are expected.

A cone of silence hovers above LHH’s Medical Division. California Department of Public Health (CDPH) inspectors found that 5 patients had been drugged with non-prescribed opioids and sedatives. All suffered life-threatening overdoses requiring emergency transfer to outside hospitals. The overdoses were caused by medications – not illegal drugs smuggled into the hospital. LHH physicians knew something was seriously wrong. Physicians at the receiving hospitals conveyed their alarms.

In February 2018, one outside doctor notified LHH Medical Director, Dr. Michael McShane, and was told that; “an internal investigation was underway,” per CDPH records. Another kept a patient hospitalized for an extra week, afraid to send the patient “to her death” at LHH. Apparently, LHH’s internal medical investigation was fruitless. Twelve months later, by chance, an unrelated investigation of an employee dispute exposed the patient druggings with pilfered meds. What happened with LHH’s physician-run Medical Quality Improvement Committee and its Performance Improvement & Patient Safety Committee? Both are charged with probing adverse medical outcomes? So far, silence.

Meanwhile, LHH has stepped up its reporting of adverse incidents to the State. In May 2019, the month before the scandal erupted, LHH sent 20 reports of alleged abuses and other lapses to CDPH. In July, the month after the scandal, LHH forwarded 37 reports to CDPH. In August, it was 42. Health Director Dr. Grant Colfax commented that, “as Laguna Honda changes its culture, there may be an increase in the volume of incidents reported.”

A burst of reporting is expected because staffers have been rattled by the scandal and the resulting scrutiny. Changing the culture is another matter. One can be open about symptoms but silent about the underlying illness. For example, on 9/10/19 LHH finally admitted that there had been a 50% increase in AWOL cases compared to the prior year. But the trend has been ignored for 4 years. Recently, almost 1 in 3 patients discharged to the community actually fled LHH by going AWOL or signing out against medical advice. Further, theft/loss reports and battery incidents have quadrupled over the prior year. Notably, there was a 54% increase in “Serious Incidents” compared to the 3 prior years, although a change in reporting methods may explain some of the rise. But the cause of the rising numbers is shrouded.

LHH officials won’t admit that DPH’s Flow Project brings disorder that undermines patient quality of life and strains caregivers. Increased altercations, threats, thefts, and AWOLs are predictable with the forced influx of younger, able-bodied and volatile patients from SFGH. So, the data showing mounting problems piles up, without explanation or remedy. Ignoring root causes is a structural component of LHH’s Culture of Silence.

Whether the plan to address the patient abuse scandal transforms LHH’s Culture of Silence, or is engulfed by it, depends on DPH brass and City Hall. At Supervisor Norman Yee’s 10/23/19 hearing before the Board’s Government Audits & Oversight Committee, a breakthrough: LHH is surveying staff about their inclination to report wrongdoing and their fears of retaliation. Also, further forensic analyses of staff cell-phone videos showed that a total of 130 patients – not just 23 - had sustained privacy violations. So far, LHH has paid $780,000 in fines, and way more are expected, said SFGH Chief Quality Officer, Troy Williams.

Back in December 2016, the CDPH issued an “AA” citation (the most severe), plus a $100,000 fine, against LHH. As detailed in the February 2017 Westside Observer, a nurse had parked an elder’s wheelchair on an incline, but forgot to set the brakes, resulting in a fall and a fatal head injury. Surprisingly, LHH contested that State penalty. The City Attorney sued the CDPH to drop the citation and fine. In Superior Court case #CGC-17-558162, the City argued that LHH’s lapse did not warrant an “AA” citation and that the fine was invalid as it was issued 5 months after the State investigation rather than within 30 days as required. After 2 years of legal wrangling, the CDPH reduced the citation to an “A” but wouldn’t budge on the $100,000 fine. However, the cost to taxpayers will far exceed $100,000 due to City Attorney fees.

In comparison, the recent abuses of 23 patients were deemed so grave that CDPH inspectors declared a temporary state of “Immediate Jeopardy” – the top category of patient endangerment. State penalties will surpass the $780,000 already levied. If the City again litigates against them, it could signal that Laguna Honda’s Culture of Silence is protected.

Dr. Derek Kerr was a senior physicians at Laguna Honda who exposed wrongdoing by the Dept of Public Health. Contact: watchdogs@westsideobserver.com

November 2019

Attempted Assassination of Westside Journalist Brandon Lee

by Dr. Derek Kerr

On August 6th, gunmen shot Brandon Lee in the face and back outside his home in Ifugao province in the northern Philippines. On the way to the Baguio City Hospital, he repeatedly shouted that the Philippine Army was responsible for the attack. Internal bleeding required transfusions. Numbness below the waist indicated a spinal cord injury. During surgery to remove a bullet lodged in his jaw, he suffered several cardiac arrests. Weeks later he is responsive but remains in critical condition with 3 bullets in place.

Brandon, age 37, is Chinese-American, born and raised in the Westside, a graduate of Lincoln High School. His mother, Louise Lee, was an always-helpful manager in Laguna Honda Hospital’s Medical Records Department. Inclined toward community service, he served as a YMCA camp leader. At SF State University, he pursued Asian-American Studies under Professor Eric Mar and volunteered with the Chinese Progressive Association where he met now-Supervisor Gordon Mar. However, it was his joining the Filipino Students League that set him on his life’s path.

In 2010, he moved to the Philippines to pursue his passion; helping farmers and indigenous people assert their rights. He became a permanent resident, married Bernice and raised their daughter Jessie, now 8 years old. Soon, he became a correspondent for the Northern Dispatch, an English-language weekly news outlet. His articles addressed police and government corruption, military depredations under Martial Law, the framing of political prisoners, land rights and environmental justice. Also, he volunteered as a paralegal for the Ifugao Peasants Movement (IPM). A Northern Dispatch open letter declared, “The attempt on the life of Brandon is to sow fear and to silence indigenous communities of Ifugao fighting against a corporate-led hydro-electric project and his colleagues in the Cordillera people’s mass movement.”

His writing was fearless. In a May, 2014 article titled; “Phil. Army Desecrates Ifugao Dead,” Brandon described how soldiers raided homes of local farmers at gunpoint and forced them to open the coffins of dead relatives. Those searches were part of the Aquino government’s anti-insurgency program that he labeled “fascist”. That year, Brandon bravely took over some duties of the IPM paralegal officer who had been murdered after being tagged by the Army as a “communist sympathizer”. Per the Inquirer Northern Luzon, “In 2015, Lee was among the Ifugao Peasant Movement members accused by the military of supporting the New People’s Army” - the armed wing of the Philippines Communist Party. A slew of Facebook threats and vilifications such as “terrorist” and “communist” ensued. Also, Brandon and 9 colleagues were mailed pictures of Ifugao burial blankets – an implicit death threat. Included were references to “GTFO” (Get the F—k Out) and “NorCal” – pointing to his “outsider” American roots. He described all this publicly in 2018, after another colleague who campaigned against the hydro-electric plant was assassinated. When Army investigators asked Brandon to name his coworkers, he disclosed just two - those who had been murdered.

In the days and weeks before being shot, soldiers had repeatedly appeared at IPM offices, asking about Brandon’s whereabouts, office hours, and family members. In an e-mail to his brother Aaron, Brandon conveyed worries for the safety of his family and colleagues due to the government surveillance and harassment. After the shooting, local Army commander Maj. Gen. Pablo Lorenzo stated; “As regard the propaganda issue wherein the AFP (Armed Forces of the Philippines) is behind the alleged shooting incident, this is devoid of logic and factual basis as this is not in the best interests of the government and AFP”. Instead, Lorenzo proposed that the Communist Party sponsored Brandon’s shooting, then blamed the military “to incite the people of Ifugao”. An investigation was promised. Contra, the Committee to Protect Journalists, announced, “Until President Rodrigo Duterte shows he is serious about protecting journalists, all the talk about investigations will come to nothing and violent attacks on the press will continue.”

Brandon Lee led a doubly precarious life as a journalist and an environmental protector. In April 2019, President Duterte’s office endangered journalists by telling the Manila Times that reporters were “blackening the image of the President” and orchestrating a “plot to oust” him. As for environmentalists, a Global Witness report titled “Enemies of the State?” identified the Philippines as the most dangerous country for environmental defenders, with at least 30 murdered in 2018. This April, our own Board of Supervisors passed Resolution 209-19 condemning the Duterte-sanctioned extra-judicial killings that had “taken the lives of 29,000 Filipinos”, including many dissidents.

Brandon’s family and friends have stayed with him, given the ominous intrusions of military personnel at the hospital. Supervisor Gordon Mar publicly condemned the “unconscionable human rights abuses” that have “left a son of the Sunset District fighting for his life.” Mar also lobbied the US Embassy to afford Brandon the protections owed to American citizens. Supervisor Matt Haney flew to the Philippines on a fact-finding mission and visited Brandon in the hospital. On 9/10/19 the Board of Supervisors unanimously passed a Resolution calling for Brandon’s “immediate evacuation” for medical care, a Congressional investigation, and suspension of US military aid until his case is resolved. A Go Fund Me campaign has been set up to raise money for Brandon’s medical treatment and repatriation via airlift to San Francisco.

Dr. Derek Kerr is a San Francisco investigative reporter Contact: watchdogs@westsideobserver.com

October 2019

Raided Westside Journalist Bryan Carmody Speaks Out

by Dr. Derek Kerr

Bryon Carmody

Bryan Carmody, the freelance journalist whose Sunset newsroom was raided by the SFPD this May, spoke out August 13th at a Society of Professional Journalists (SPJ) forum at Northwestern University’s Medill School of Journalism in San Francisco. The panel included National SPJ President, J. Alex Tarquinio, and Thomas Burke, the media lawyer who represents Carmody.

Carmody was catapulted into international controversy after the SFPD broke into his home and office on May 10th. Using illicit search warrants, cops sought to identify the source who leaked the confidential police report on Public Defender Jeff Adachi’s 2/22/19 death. One month before, Carmody had refused to reveal his source when SFPD inspectors dropped by with a cryptic threat of a federal grand jury subpoena.

National SPJ President, J. Alex Tarquinio

“Woken up from a deep sleep” by the sledge-hammering of his gate, a shirtless Carmody was handcuffed for 6 hours as gun-toting officers plundered his belongings. Upon asking to make a call, a cop offered, “Here’s your phone, go ahead and unlock it for us.” No way. Similarly, Carmody said nothing to 2 FBI agents who prodded him about “criminal conspiracy” and “obstruction of justice”. The cops then raided Carmody’s office at 794 45th Avenue near Cabrillo where they confiscated computers, cameras plus 30 years of notes and digital photos. He was left with no phones, no equipment, no way to work. A friend set up a GoFundMe campaign to replace $6,000-worth of equipment. Eventually, the SFPD returned the devices but security experts advised him not to use them.

Thomas Burke

Ethical questions about privacy and purloined documents came up. Although the Adachi family was traumatized by the police report that Carmody distributed, SPJ’s Tarquinio noted that elected officials forego the privacy rights of ordinary citizens. Carmody added that the police report would eventually be made public, albeit with privacy redactions. And none of the TV stations that purchased it revealed the whole file. He emphasized that he had no animus toward Adachi, and defended selling the report as “sunlight” that “cleared up what happened and dispelled rumors.” He contrasted the City’s murky statement about Adachi’s death with the forthright announcement when Mayor Ed Lee died. As for being a “non-mainstream journalist”, Carmody explained that staffing cuts at media outlets raised their reliance on stringers – freelance photojournalists who cover breaking news. Once the media pounced on the story, Carmody decided his best defense was to “talk to everybody and anybody.”

Attorney Tom Burke asserted that “receiving and requesting information” is part of “the sausage-making process of journalism.” City Hall’s “condemnation and lack of appreciation for what journalists do every day” surprised him. While search warrants for journalist sources are generally illegal, journalists can be subpoenaed to testify, with 5 days advance notice to seek legal counsel. Even though the Shield Law protects sources from being outed, he felt that the raids would inhibit sources from contacting journalists. Burke was confident that the SFPD wouldn’t use the seized information in a legal case. However, the SFPD now knows the phone numbers of police officers who have spoken with Carmody. As for the FBI involvement, Burke was mystified. Carmody previously indicated that the FBI investigates public corruption, a charge that would apply if a police officer sold the stolen report. Carmody insisted that didn’t happen; “I did not compensate, in any way…the officers who were involved in this – not even a cup of coffee.”

In 30 years of practice, Burke said “I’ve never known an American journalist, who hadn’t gone to jail, who was more targeted.” That targeting was fueled by outrage from the Board of Supervisors, the Mayor, the Public Defender’s Office and Adachi’s family. Once the City Attorney informed Police Chief William Scott that his raids were legally untenable, and barraged by media criticism, Scott apologized.

The Carmody search warrants were pursued by the Internal Affairs Division – part of SFPD Administration under Chief Scott. As ex-cop Lou Barberini reported in the July Westside Observer, there are “cowboys” within SFPD’s Internal Affairs Division. Their botched raids resembled the retaliatory “get-the-cop” investigations that Barberini described. Accordingly, Carmody received sympathy; “Most of the rank and file came up to me and said; ‘What they did to you was wrong.” Further, the Police Officers Association blasted Chief Scott as “deceitful” for blaming “a lack of due diligence by department investigators” when the fault arose within his administrative circle.

Given law-enforcement capabilities for unlocking computers, Carmody advised, “Don’t write stuff down that you don’t want someone to see.” He admitted that he “would have been sunk” without Burke’s legal assistance. Journalists who are threatened by police can find legal help through SPJ’s NorCal chapter or the First Amendment Coalition.

Dr. Derek Kerr is a San Francisco investigative reporter Contact: watchdogs@westsideobserver.com

September 2019

Laguna Honda’s Silent Abuse Scandal

By Dr. Derek Kerr

Acting CEO Margaret Rykowski

In July, the California Department of Public Health (CDPH) declared a state of “Immediate Jeopardy.” An abbreviated survey found that 2 Licensed Vocational Nurses (LVN) and 2 Certified Nursing Assistants (CNA) shared cell-phone images of 19 patients without their consent. Three were naked, showing buttocks, genitals – even an enema treatment. Another sprawled on the floor in a soiled diaper. Some were filmed as staff taunted them with sexual affronts or asked to borrow money. One was being kicked by a staffer; another muffled with a towel. These photos and videos had emerged incidentally during a staff-to-staff sexual harassment investigation. LHH sent families a “Notice of Data Breach” disclosing privacy violations – without mentioning the abuses.

Worse, 5 patients were drugged with non-prescribed morphine, methadone, and tranquilizers, resulting in life-threatening complications and emergency hospitalizations. An LVN had pilfered the medications from other patients. He and a CNA exchanged text messages joking about making patients “sleep” and displaying a bag of stolen medications. They were on duty when the druggings occurred. One patient was treated for 2 overdoses. Another had 8 urine tests showing non-prescribed narcotics between January and August 2018. He died that September. Like all LHH caregivers, the perpetrators received annual Abuse Prevention and Reporting training.

In a 2015 lecture, Dr. Ron Wyatt, from the Joint Commission on Accreditation of Hospitals, identified a Culture of Silence as detrimental to patient safety. The remedy, a Culture of Safety, requires trust that reporting problems will result in action and improvement. Silence arises from a mistrust of leaders and fear of retaliation. Silence also exhibits a lack of empathy. Health care without empathy leads to abuse and neglect. Nationwide, the top 3 causes of patient harms are lapses in supervision, leadership and communication. All are aggravated by fears of speaking up.

Leadership: Organizational climate is set at the top. Unethical or incompetent leaders engender undesirable behaviors below. When leaders are selected for obedience rather than competence, they are easily threatened by criticism or setbacks. Worse, they are threatened by competent subordinates and often push them out. Since the imposition of CEO John Kanaley in 2004, then Mivic Hirose in 2009, loyalists were rewarded and critics ostracized. To make the trick work, LHH managers pursued recognition and trumpeted awards. A PR Director was hired to embellish and publicize achievements. A puffy website was created. Happy faces crowded LHH’s Facebook page. All this boosterism made it onerous to differ by reporting flaws or abuses.

The announced “resignation” of former CEO Mivic Hirose, whose 2018 salary was $308,762, was Kabuki. Records show that she remains employed as a Clinical Nurse Specialist. What hasn’t been addressed is her entourage. The folks she promoted are unlikely to empower staff to expose misconduct. Now, Margaret Rykowski is LHH’s Acting-CEO – and also DPH Director of Compliance and Privacy. Her dual role harbors conflicting interests. Suppose someone reports misconduct by LHH brass. Would Rykowski adjudicate that violation as DPH Compliance Director – and also defend against it as LHH’s CEO?

The mystery is why Quality Director Regina Gomez, who earned $273,436 in 2018, was removed. The July WSO mistakenly reported that she had resigned. In fact, she was placed on paid administrative leave. Importantly, Gomez did not govern clinical nursing and those nurses didn’t report to her. Yet, LHH Chief Nursing Officer, Madonna Valencia, who does oversee nurses, wasn’t held accountable. Neither were the supervising nurses for the affected wards.

Gomez’s job involved reporting alleged patient abuses – once brought to her attention – to regulators. Obeying stricter reporting requirements, LHH reported more cases: 28 over the past 2 years. LHH was deemed deficient in handling 15 cases, 9 for tardy reporting. All were patient-to-patient altercations. That helped sink LHH’s 2019 Medicare rating from a proud 4 stars to a mediocre 2 stars. Ironically, Gomez’s amplified reporting set the stage for blame. Because the separate spate of patient abuses by staff went undiscovered, Gomez was apparently fingered as the ultimate reporting authority.

Paradoxically, Gomez was replaced by Troy Williams, SF General Hospital’s (SFGH) Quality Director. Under his watch, State inspectors threatened SFGH with fines and payment cuts for an improper policy allowing the under-reporting of patient abuses allegations since 2016. Plus, SFGH was cited for 2 negligent deaths and deficient Skilled Nursing services. The rationale for Williams replacing Gomez is elusive.

LHH leaders have been preoccupied with flow, rushing patients in and out to accommodate SFGH referrals. Quality of care turned to process, churning out data and dashboards. “True North metrics”, core measures, survey outcomes and “Kaizen” workshops became proxies for patient well-being. For example, LHH’s May 5th Executive Committee meeting celebrated metrics showing; “100% patient satisfaction with their care experience. We are currently on target.” Meanwhile, managers were apologizing to the families of 23 abused patients. Splendid metrics don’t ensure good care.

Supervision: Gone are the days when former Nursing Director Virginia Leishman roamed the wards, chatting with patients and checking on staff. In the old building, each 30-bed ward had a Head Nurse who interacted with patients and staff. Nowadays, Nurse Managers cover 60 beds, spending much of their time at desks, computers and meetings. When important people disengage from patients, patients become unimportant. To mask this loss of engagement, wards were re-named “neighborhoods”, then “community meetings” were introduced. Nonetheless, Nurse Managers were out of touch with patients and their caregivers. If no one noticed that 6 staffers abused 23 patients over 3 years, supervision failed.

The mistreated patients resided on North 1 and North 2, the “Integrated Wellness” neighborhoods where 40% are cognitively impaired. Per LHH’s Facebook page, North 1 has; “a dedicated staff of qualified professionals with years of experience helping residents with challenging behaviors. The program provides a variety of therapeutic services… and compassionate counseling with the goal of improved social functioning.” North 2 aims “to achieve a satisfying quality of life while meeting their psychosocial and emotional needs.” What happened? Why were deviant employees assigned to such specialized wards? How did they pass the hiring process? Why were they playing with cell phones while working?

The Health Commission is supposed to oversee LHH. Three commissioners meet monthly with LHH managers as a Joint Conference Committee. There, they are spoon-fed a diet of good news. Rarely do patients, families or members of the public attend. Lacking situational awareness, commissioners seldom ask relevant questions. They miss signs of trouble, often acting as cheerleaders rather than overseers. When former Health Director Barbara Garcia was fired for a conflict of interests, the commissioners commended her.

Communication: Cultural factors and peer pressure can inhibit the open expression of discontent. As reported in the February 2016 Westside Observer, a brave handful of nurses protested before the Civil Service Commission about favoritism, nepotism and cronyism at LHH. A 2007 LHH report warned about the lack of diversity within Nursing and the problems associated with cultural dominance. A majority of LHH nurses are from the Philippines. Asian cultures tend to be collectivist rather than individualistic. Though dedicated and caring, LHH nurses may be reluctant to speak out - or cannot afford the risk.

Establishing a Culture of Safety requires a root-cause analysis of why these abuses festered untold. Why did LHH’s own Compliance Office and Hotline fail to spot the scandal? Does LHH still treat whistleblowers as pathogens? Were abuses reported and buried? What derailed supervision on the affected wards? Were line-staff afraid to speak up, indifferent, or blinded by group allegiance? How did hiring and assignment practices inflict such troubled workers upon helpless patients? Hopefully, these questions will be addressed in LHH’s “Turn-Around Plan” in September.

For now, LHH has promised State inspectors that all staff will be re-trained in reporting abuse. Nurse Managers will check their patients weekly instead of monthly, and re-engage with their staff. Hiring will require 2 references and questions about abuse and neglect. Tighter controls will be applied to narcotics and sedatives, and cell phones. Abuse allegations will be audited for timely reporting. As to why this scandal occurred, perhaps Supervisor Norman Yee’s proposed hearing will provide insights – if employees can safely testify.

Acknowledgement: Thanks to the current and former LHH employees who provided tips and insights.

Dr. Derek Kerr was a senior physicians at Laguna Honda Hospital where he was fired for repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

SEPTEMBER 2019

Breaking the Silence:

Laguna Honda’s Patient Abuse Scandal

Former CEO Mivic Hirose

Stunned and bewildered. That was the reaction when 1,650 Laguna Honda employees received an explosive email from DPH Director Dr. Grant Colfax on June 28th. “I regret to inform you that a months-long investigation showed incidents of staff misconduct towards patient-residents at Laguna Honda Hospital” it began. Colfax went on to describe how 6 employees shared cell-phone images of 23 patients in the North 1 and 2 wards and engaged in sexualized conversations, privacy violations, verbal and physical abuse, neglect, and administration of non-prescribed substances to pacify patients. These abuses persisted for 3 years, from 2016 until January 2019.

The staff memo, a follow-up Press Release and a City Hall Press Conference were carefully crafted, placing abuses in the past and delivering remedies. These include the resignations of CEO Mivic Hirose and Quality Management Director Regina Gomez - both nurses, along with the firings of 6 unidentified staff members. Wellness checks for impacted patients, family notifications, and retraining of staff in preventing and reporting abuses were implemented. An Acting CEO has been appointed; Margaret Rykowski, RN, Director of the DPH Office of Compliance and Privacy Affairs. She is a retired US Navy Reserve Rear Admiral with the Nurse Corps who previously served as Patient Safety Officer at SFGH and oversaw Laguna Honda’s Health at Home program. Within 60 days, Rykowski will present a Laguna Honda “Turn-Around Plan” to the Health Commission and the Mayor’s Office.

Former Quality Management Director Regina Gomez

So far, all that is known about the scandal is what the DPH has reported. It’s telling that Mayor London Breed referred to “horrific actions”. A more granular analysis will emerge from an investigation pursued by the California Department of Public Health. Supervisor Norman Yee is seeking additional public and professional testimony via a hearing before the Board’s Public Safety and Neighborhood Services Committee. The Westside Observer will examine the root causes of the scandal and welcomes confidential input from Laguna Honda employees.

Perhaps the most disturbing aspect of these violations is that they were discovered by accident – during an unrelated Human Resources investigation this January. Nobody reported the shocking misconduct. Why no whistleblowers? Director Colfax made an accurate diagnosis when he identified a “culture of silence” at Laguna Honda. By allowing abuses to fester, this institutional silence has not only harmed patients but unfairly shamed the many dedicated workers who care for patients with skill and compassion.

Dr. Derek Kerr was a senior physicians at Laguna Honda Hospital where he was fired for repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

JULY 2019

Sunset Uprising: Residents Tackle Property Crimes

By Dr. Derek Kerr

Photo courtesy: stopcrimesf.com

District 4 Supervisor Gordon Mar heard an earful about property crimes from his constituents. In addition to car break-ins, residents are alarmed about residential burglaries and package thefts. Core concerns are the worsening safety in previously low-crime neighborhoods and the targeting of Chinese-American elders by criminals.

On April 25th, Supervisor Mar held a hearing before the Board’s Public Safety & Neighborhood Services Committee. A dozen residents expressed frustration and outrage. A construction contractor testified that his company had lost $80,000 in equipment due to job-site and office break-ins, and a stolen truck. Yet, police investigations and follow-up were disappointing. Most of the commenters were older Chinese residents who recounted home invasions, burglaries, and even the theft of food delivered to a 90 year old woman. Some feared going out at night with more homeless people wandering about and sleeping on private property. Seeing strangers now “caused a tremor in our heart,” one said. Amid demands for more police patrols, arrests and prosecutions, one gentleman wondered, “Where is police, maybe policeman sleeping?”

Supervisor Gordon Mar-Photo: Sunset Beacon

SFPD Captain Tim Falvey provided statistics showing a steady decrease in residential burglaries and robberies since 2015. The term robbery means that perpetrators confront victims and take property by force or fear, whereas burglaries occur without victims being present. A “hot prowl” occurs when burglars enter premises while residents are present but without confronting them. Taraval Station logged 57 hot-prowls in 2018 – the highest number in the City. However, the 379 burglaries, robberies and hot prowls recorded in 2018 were less than in the prior 3 years. An additional 41% decline was noted in 2019.

These declines were attributed to the 2018 re-activation of Citywide Burglary and Robbery Units that tackle crimes across all police stations. Previously, police stations handled residential crimes within their own districts with Neighborhood Crime Units. That system missed criminals who worked across station boundaries. Under the new system, arrests for burglaries and robberies increased from 322 in 2015 to 465 in 2018. Also, arrests increased to 16% of reported burglaries in 2018, versus 10% in prior years. Yet many Sunset residents contend that arrests are lagging while property crimes spread. The Westside Observer has documented the unreliability of some SFPD crime statistics.

The SFPD and Sunset residents agree that package thefts are mounting and can escalate to home burglaries. However, the SFPD doesn’t track package thefts as a distinct crime. Instead, they are lumped together with other thefts and classified as “larceny/theft”. Without data on the incidence and demographic patterns of package thefts, the SFPD couldn’t say whether Chinese residents were targeted. Despite the citywide impact of package thefts, they’re still handled as low-level crimes at the station level. SFPD’s focus has been public education and prevention as shown on Taraval Station’s website; taraval.org.

Cristine DeBerry from the District Attorney’s Office reported 16,000+ thefts in 2018. She had no data on package thefts since these were mixed into the larceny/theft category. Prosecutions are based on the value of the stolen items, so anything under $950 is considered petty theft – a misdemeanor. Although residential burglary cases had risen from 137 in 2014 to 237 in 2018, she reported an 18% drop so far this year. In 2018, the DA filed charges in 86% of burglaries and 88% of these yielded convictions.

Kyra Worthy, director of SF SAFE (Safety Awareness for Everyone), explained how her crime prevention nonprofit partners with the SFPD to conduct free residential security surveys. SF SAFE also sets up volunteer Neighborhood Watch groups and Community Police Advisory Boards.

Frank Noto, co-founder of Stop Crime SF, described how his network of anti-crime volunteers evolved from protecting rental cars to “our homes.” He said crimes targeting Asians had increased and favored making package theft a felony. This organization holds law-makers, the police, the DA, and judges accountable for crime.

Wendy Wong, SF Coalition for Good Neighborhoods, said just 4 of 140 SFPD dispatchers speak Cantonese, an obstacle to timely reporting. Chinese people are already hesitant to report crime, and weak enforcement makes this worse.

Supervisor Mar emphasized the need for data on package thefts and victim demographics to develop better strategies. He called for increased responsiveness from the SFPD and the DA along with more outreach by SF SAFE, as well as a Sunset Town Hall meeting to gather more input.

On May 26th, 140 energized residents packed Grace Lutheran Church for a lively Town Hall meeting organized by Supervisor Mar’s aide, Alan Wong. SFPD’s Taraval Station distributed tips on preventing burglaries and package thefts. The handouts also showed that burglaries and robberies had fallen in May, compared to April. Mar introduced a panel of anti-crime neighborhood leaders; Amos Lim, a gay and immigration rights activist, Susan Pfeifer from the FDR Club, Wendy Wong from Coalition for Good Neighborhoods, John Zwolinski, a Neighborhood Watch block captain, and Nancy Tung from Stop Crime SF and a DA candidate. Also present was mayoral candidate Ellen Lee Zhou, running on a “make SF safe and clean” agenda.

The multitude was separated into 4 groups. Afterwards, group leaders reported results from their huddles;

• Ask SFPD to provide more patrols and track package thefts.

• SFPD should facilitate crime reporting, address language barriers and improve responsiveness.

• Increase police-community contacts to make cops more approachable and help residents understand SFPD services.

• Seek City subsidies for security cameras and alarms.

• Know your neighbors through events like Neighborfest, a City program that strengthens community networks.

• Work with SF SAFE to organize more Neighborhood Watch groups.

• Community Ambassador Program, a City job-training program providing safety escorts for elders and a visible presence.

• Use Nextdoor, a free social network for neighbors to report suspicious behaviors.

All this led Supervisor Mar to form the D-4 Public Safety Working Group. Good thing because without effective community action, crime fears intensify. Meanwhile, he has to navigate between progressive and conservative approaches to crime, as well as conflicting claims of crime abatement and a crime wave. We asked Taraval Station’s Captain Nicholas Rainsford for a comment but received no response.

Dr. Derek Kerr is a San Francisco investigative reporter Contact: watchdogs@westsideobserver.com

JULY 2019

The Struggle for Sunlight on Dark Money

By Dr. Derek Kerr

TheSunlight On Dark Money initiative launched this March is a rear-guard action to salvage constraints on pay-to-play politics. The back-story features a split within the Ethics Commission, the resignations of Commissioners Peter Keane and Quentin Kopp, and 2 years of excruciating deliberations that pitted the Ethics Commission against nonprofits. Sponsored by Keane and Supervisors Mar, Haney, Fewer, Ronen and Mandelman, the Sunlight measure will land on the November ballot.

The Sunlight initiative aims to restore some anti-corruption and transparency provisions that were scrapped during sausage-making at the Ethics Commission (Ethics) and the Board of Supervisors (Board). Briefly, it expands bans on corporate contributions to candidate campaigns, prohibits developers pursuing land use decisions from funding campaigns for Mayor, Supervisor, or City Attorney, and requires Independent Expenditure Committees (aka Super PACs) to name their 5 top donors.

One impetus for this Initiative was the 2013-14 Civil Grand Jury report titled Ethics in the City – Promise, Practice or Pretense. It revealed that Ethics and the Board had covertly neutered Prop J of 2000, a grassroots initiative that banned “legal kickbacks” whereby City officials took contributions, gifts or jobs from those to whom they granted contracts, land deals or similar benefits. This “Taxpayer Protection Amendment” received 83% of the votes.

But in 2003, Prop J was repealed by Prop E, an “Ethics Reform” Charter Amendment sponsored by the Board with input from Ethics. Prop E empowered the Board to amend - or undermine – voter initiatives incorporated into the Campaign and Government Conduct Code. Sold as a more efficient way to update ethics laws, it allowed revisions by a super-majority of votes; 8 of 11 Supervisors plus 4 of 5 Ethics Commissioners. Prop E drew plenty of opposition for its “fox guarding the hen-house” features, but passed with 62% of the votes. Thereafter, conflict of interest and campaign finance laws could be altered without a public vote. For example, in 2009 the Board and Ethics decided“expenditure lobbyists” - those who influence City Hall indirectly by subsidizing the lobbying of astro-turf, political, and nonprofit groups – did not have to disclose expenditures.

On 4/27/15 Ethics Chair Paul Renne asked Commissioner Keane to assess Prop J and expenditure lobbying as possible ballot measures. Ethics can independently introduce ballot measures without Board approval. Accordingly, Ethics placed Prop C “Expenditure Lobbyists” on the November 2015 ballot. Approved by 75% of voters, it was opposed by the nonprofit sector. Then in November 2016, Ethics introduced Prop T to bar lobbyists from contributing to City officials whom they lobbied. It got 87% of the votes.

In March 2017, Keane started a “Prop J Revision Project” that evolved into a complex Anti-Corruption and Accountability Ordinance (ACAO). The ACAO sought a ban on behest payments whereby City officials press those seeking City entitlements to fund their favored nonprofits or political committees – what Keane called “extortion by behest”. Keane wanted Ethics – not the Board - to place the ACAO on the ballot since it “cramps the style of elected officials in terms of raising money.” But it also cramped the fundraising and influence of nonprofits.

The Nonprofit Perspective: According to the June, 2018 Budget Book, City expenses for nonprofits will increase from $970 to $990 million annually. As recipients of almost $1 billion in taxpayer funds yearly, nonprofits are a major interest group. These private-public partnerships generate mutual benefits – and conflicts of interest. The dilemma is whether the exchange of favors inherent to such partnerships should be restricted even if their outcomes are beneficial.

Immediately, the nonprofit sector opposed any language that could affect their incomes or reporting burdens. Business interests warned against abridging their constitutional rights to participate in politics without intrusive disclosures.

Since the ACAO applied to nonprofits big and small, the nonprofit representatives emphasized the plight of small nonprofits that struggle to make ends meet and serve needy clients. For these Mom-and-Pop outfits, the ACAO was too complicated, they argued, drowning them under layers of accountability. They could get blindsided by technical violations, then sued out of existence by corporate adversaries.

Nonprofits resented being stigmatized as self-serving. If they don’t lobby in the land use arena, they face obstacles to opening or renovating their facilities – even displacement. By necessity, nonprofit developers of low-income housing try to influence land use decisions. Further, nonprofit board members often serve on City Commissions. But the ACAO would prohibit them from fundraising for their nonprofits, or supporting candidates who could help them get City contracts and benefits. Such limits would deter nonprofit leaders from sharing their expertise with City Commissions. Or, they might quit their nonprofit boards to avoid conflicts of interest.

Nonprofits wanted City officials to steer donations to them. They viewed behest payments as altruism rather than extortion or quid pro quos. So, Ethics agreed to switch from banning to simply disclosing such donations. Still, nonprofits objected; having to report donations could discourage potential donors. Ethics tried repeatedly to accommodate their concerns. Yet after every amendment, they sounded the same refrain – thanks, but we’re still threatened.

The Split within Ethics: On one side were Commissioners Renne, Keane and Kopp who wanted to prevent pay-to-play corruption via a ballot measure. They were generally allied with Friends of Ethics (FOE), a good government group of former Ethics Commissioner and Civil Grand Jurors. FOE collaborated with MapLight a nonprofit that tracks money in politics, to provide data supporting bans on certain campaign contributions and behested payments. For example, in 2015-16, City Commissioners appointed by the Mayor had reportedly funneled $1.1 million to campaigns supporting mayoral agendas. Further, of $23 million in behested payments logged from 2012-2017, none went to nonprofits serving low-income San Franciscans. FOE also pushed to limit the huge monetary impact of developers on campaigns, and the resulting displacement of local residents by luxury housing.

On the other side were nonprofits and big businesses. The nonprofit cause was bolstered in August 2017 when Mayor Ed Lee appointed Commissioner Yvonne Lee who has long-standing ties with nonprofits. She said City officials had “a duty to support the most vulnerable and community service organizations.” She rebuffed the “perception of corruption” as arising from “anecdotes” rather than facts and because negative perceptions of “Asian-American brothers and sisters” had incited their persecution. Commissioner Daina Chiu, a corporate attorney appointed by Assessor Carmen Chu, initially wanted to move “expeditiously” given the “harm done.” Then she drifted, citing nonprofit and business concerns, to join Lee against placing the ACAO on the ballot. After a 9/27/17 Chronicle editorial blasted Ethics for failing to tackle money in politics, Chiu deplored “the high-jacking of our electoral process” – by Russia.

The Sausage-Making Finale: At the 2/16/18 2018 Ethics meeting, the staff recommended placing an amended ACAO on the June ballot. However, Supervisor Peskin’s aide, Lee Hepner, implored Ethics to let the Board pass the ACAO legislatively instead. Peskin also wanted to insert a Major Donor Disclosure requirement into the ACAO and pass it before the June 2018 elections when a flood of dark money was expected.

Then-Chair Keane warned against “putting our faith in a legislative body…that is hyper-political, jockeying for Mayor, jockeying for power, one group trying to screw the other.” Keane emphasized that he saw no need for an Ethics Commission that didn’t act independently. Placing the ACAO on the ballot required 4 votes. Lee was sure to vote No, so Chiu’s vote was pivotal. She decided to “honor the democratic process” by working through the Board as that could “strengthen” the ACAO and get it implemented sooner. Their “No” votes spurned the call for independence. Keane announced “I resign” and walked out.

Thus stymied, Ethics acquiesced to a joint meeting with the Board. But at that April 2018 meeting, Peskin withdrew his Major Donor Disclosure proposal. The Board voted 6 to 5 against banning campaign contributions exceeding $5 million from developers pursuing land use permits, citing the “highly diffuse and technical nature of land use decision-making.” Commissioner Kopp’s motion to ban behest payments failed. Worse, most of the ACAO, now absorbed into Ordinance 129-18, took effect after the 2018 elections – thus failing to stem the torrent of dark money. For example; London Breed’s mayoral bid gained$1,248,098 in funds from Independent Expenditure Committees, topping the dark money to all other mayoral candidates.

Commissioner Renne’s term ended in February 2019. Isolated, Kopp resigned in March. His resignation letter mentioned Ethics’ failure “to illuminate so called ‘dark’ money” given the “refusal by some Commission members in the face of political pressure from nonprofit corporations and businesses.” Keane, Kopp and Renne now back the Sunlight on Dark Money initiative to restore some provisions that succumbed to divisions within Ethics and the Board.

Dr. Derek Kerr is a San Francisco investigative reporter Contact: watchdogs@westsideobserver.com

JUNE 2019

Tough Contract Negotiations: Unions Wield Civil Disobedience to Disrupt Inequality

By Dr. Derek Kerr

On April 11th afternoon, some 400 Service Employees International Union (SEIU)-1021 and International Federation of Professional and Technical Engineers (IFPTE) Local 21 members staged a novel civil disobedience protest at City Hall. Some 2 dozen workers were arrested for blocking traffic by sitting on the Polk Street crosswalk. Demonstrations during arduous contract negotiations are nothing new. But this one tied contract demands to the theme: “Disrupt Inequality.” Unions want City leaders to steer corporate wealth to the workers who keep the City functioning.

According to Union statements, “City workers are being told in negotiations that the City can’t afford to invest in the vital programs we provide or in allowing us to keep up with the skyrocketing cost of living. Meanwhile, multi-billion dollar corporations like Uber and Lyft get to play by their own rules and not have to pay their fair share towards the public services that City workers provide.” Union contract negotiations now include appeals to City officials to “take a stand to ensure that San Francisco is a city that works for everyone – not just the 1%.” Instead of extracting more money from beleaguered taxpayers, the idea is to hold big corporations and their CEOs accountable for using the City services and infrastructure that allow them to thrive. Recent data1 from the Institute on Taxation and Economic Policy shows that some of the largest and most profitable corporations pay no taxes. In 2018, US corporate tax revenues fell by 31% according to US Treasury records. Most corporations use tax shelters and subsidiaries to shield their enormous revenues from taxation. So workers and small businesses have to make up the difference or bear public service cuts.

Targeted by this demonstration were “unicorns” – privately-held start-up companies valued at $1 billion or more. A handful of San Francisco-based unicorns are scheduled to go public through IPOs or Initial Public Offerings that could mint hundreds of new millionaires. This influx of wealth could further widen income inequality, boost housing prices, increase homelessness and drive further displacement of long-time San Franciscans. Currently, many City workers can’t afford to live in the City and endure protracted, congested commutes.

Demonstrators displayed colorful placards of unicorn figures with messages like; “Fair Contracts for City Workers,” “Safe and Healthy Communities,” “Affordable Housing for All,” “Dignity and Respect for All Workers.” Chants of “We don’t get no contract, you don’t get no peace” resounded throughout Civic Center as workers marched down Polk Street waving signs and banners. That fervor was balanced by a demure minister from Grace Cathedral whose homily concluded with an appeal; “Let justice roll down like a river and let inequity wash away.” No City officials participated.

Hundreds then charged to Uber headquarters on Market Street to shame the ride-sharing colossus for exploiting gig-workers and shielding its revenues from taxation. Union members see similarities between corporate gig-work and the 15% of City employees who are retained as temporary rather than permanent employees. Temps lack the benefits and protections of regular workers.

Upon returning to City Hall 24 City workers staged a sit-in across Polk Street facing City Hall, forcing the SFPD to divert traffic. Monitoring the demonstrators were some 50 police officers plus 12 Sheriff’s deputies who guarded the entrance to City Hall. The police respectfully warned that arrests were forthcoming. None of the 24 demonstrators budged. So the cops gently guided the demonstrators one at a time to stand up to be zip-tied and escorted into waiting paddy wagons.

Apparently, rising corporate wealth and predations, coupled with shortfalls in public services and household budgets, portend more discontent, protests - and strikes.

Dr. Derek Kerr is a San Francisco investigative reporter Contact: watchdogs@westsideobserver.com

1. https://itep.org/notadime/

MAY 2019

Taraval’s Transit-Only Lanes Trouble Merchants

By Dr. Derek Kerr

Westside merchants are still wrangling with the SFMTA over the installation of transit-only lanes. Such lanes, separated from regular traffic, aim to improve MUNI reliability and reduce pedestrian injuries. But they eliminate the parking that sustains businesses along commercial thoroughfares. A colorful protest against purged parking was covered in the June 2018 Westside Observer’s “Taraval Merchants See Red Over Parking Ban.”

In a March 10 letter to the SFMTA, Albert Chow, President of People of Parkside Sunset (POPS) demanded that an evaluation of planned transit-only lanes on Taraval Street be conducted as promised. POPS is a coalition of merchants and residents who promote local businesses as well as neighborhood activities and quality of life. Back in July 2018, SFMTA Rapid Team Leader Michael Rhodes had assured Chow that he would compile “qualitative feedback from residents and merchants” and “reconvene the small working group to share the results and gather feedback before finalizing any staff recommendations.” But the L-Taraval Project will resume this year and Chow says the feedback part is missing. POPS members worry that SFMTA is “walking back understandings and agreements” that were supported by then-Supervisor Katy Tang.

We asked Rhodes to comment, but he is out on leave. Instead, SFMTA’s Philip Pierce responded that the renovations will continue until 2021, with ongoing community surveys and engagement with POPS. He noted that a 2015 community survey of about 1000 people showed that 49% supported transit only lanes while 38% opposed.

Simultaneously, the Controller’s Office released a study of SFMTA’s community outreach³. It was conducted because, “Members of the public report that notification can be inadequate and that SFMTA can appear to make decisions regardless of the public input received.” In early 2018, SFMTA staff upgraded its public notification and hearing processes. Improvements included public notices with maps and project manager contact information, sending emails to interested persons, and conducting satisfaction surveys. Satisfaction ratings leaped from 66% to 83% for SFMTA’s public hearing notices and from 66% to 89% on the clarity of its approval process.

Statistics aside, POPS expects SFMTA to survey merchants and residents and hold community forums “to ensure that the impact of the transit-only lanes on merchants and residents is fully explored.” In addition to better outreach, POPS also wants SFMTA to consider limiting transit-only lanes to the eastern part of Taraval, or to rush-hours only.

Dr. Derek Kerr is a San Francisco investigative reporter Contact: watchdogs@westsideobserver.com

APRIL 2019

Jeff Adachi’s Last Case

by Dr. Derek Kerr

Nine days before the untimely death of Public Defender Jeff Adachi on 2/22/19, the Westside Observer (WSO) received an email from his office. It detailed allegations of prisoner abuse by Sheriff’s deputies in City jails and offered an interview with Adachi. WSO reporters were busy preparing articles for the March issue. There would be time, we thought, to confer with Adachi, a former WSO contributor and St. Francis Wood resident.

Adachi’s message included a 1/16/19 formal complaint to Sheriff Vicki Hennessy about the “deplorable conditions at the San Francisco jails and ongoing and repeated misconduct by SFSD deputies.” Adachi warned that the inmates were “fearful of retaliation for coming forward with their complaints” but were willing to do so.

Sunset attorney and “soccer-mom” Kathleen McCowin arrested for peacefully protesting the rushed bulldozing of Golden Gate Park to install artificial turf and stadium lights witnessed abuse of women prisoners while in jail

Attached were reports by 16 female inmates alleging that some were strip searched in view of male deputies. Instead of individual private strip searches; these were conducted en masse. Once naked, the women were ordered to lift their breasts then squat, spread their genitalia and cough for vaginal and anal exams. They felt humiliated and degraded. Another 15 male inmates at the San Bruno Jail reported “abuse or physical assault” by deputies whom they identified. There were injuries from fists and kicks as well as being dragged by handcuffs. In all, some 20 deputies were implicated.

Sheriff Vicki Hennessy rejected Adachi’s designation of “deplorable conditions” but launched an internal investigation. Adachi wanted an outside investigation – with good reason. Back in 2015, he had exposed “outrageously sadistic scenarios” at the Hall of Justice jail on Bryant Street. Sheriff’s deputies had manipulated inmates to engage in “gladiator-style” fights while betting on the outcomes. A year-long probe by the FBI and the DA led to criminal charges. But the case fell apart because Sheriff’s investigators had obtained “compelled statements” from deputies during an internal affairs investigation then improperly used them in a criminal investigation. Because compelled statements are self-incriminating, they’re inadmissible in criminal prosecutions. Astoundingly, an investigator had also hammered to smithereens a computer hard-drive containing evidence of the tainted investigation. Therefore, this February, the DA had to drop criminal charges, although 3 deputies involved in the fight club had been disciplined, and 3 inmates received a $90,000 settlement.

Alarmed that his current complaint would be similarly torpedoed, Adachi and Supervisor Shamann Walton publicly called for an independent investigation and oversight of the Sheriff’s Department. After Adachi’s death, Sheriff Hennessy referred the investigation to the Department of Police Accountability – without mentioning the prior investigative fiasco.

Mistreating prisoners is an occupational hazard for guards. That was made clear in the 1971 Stanford Prison Experiment. Psychologist Philip Zimbardo recruited students to act as guards and prisoners. The study was aborted after 6 days because the subjects who played guards became sadistic toward the inmate subjects. The study showed that situational forces overtook the subjects’ sense of morality and agency. A similar transformation was described by Mother Jones reporter Shane Bauer who spent four months undercover as a prison guard. Bauer noted; “Striving to treat everyone as human takes too much energy…I focus on proving I won’t back down.” And, “I feel ashamed of my lack of self-control, my growing thirst for punishment and vengeance.”

One reason that jail conditions matter is that almost anyone can be arrested. Take Sunset attorney and “soccer-mom” Kathleen McCowin, a proponent of natural grass and limited lighting in playing fields. In November 2014, five cops arrested her for peacefully protesting the rushed bulldozing of Golden Gate Park to install artificial turf and stadium lights. Her December 2014 WSO article, The Shame of Rec and Park, provides the back-story and a video of her arrest.

During her one-day stay at County Jail #2, McCowin says her pregnant cellmate “Amanda” was mistreated. At first, Amanda’s cramps and leaking were dismissed. Once bleeding occurred, she was taken to SFGH and reportedly chained to a bed as she miscarried. Upon returning to jail, McCowin offered to switch bunks to give the still-bleeding Amanda the lower bed. Reportedly, the guard wouldn’t allow it and no menstrual pads were provided.

The Sheriff’s Department was anxious for McCowin to sign herself out as she was considered a liability. Instead, she settled in after a reassuring but expensive phone conversation with her teen daughter. Soon, a deputy claimed to have also called her daughter who was supposedly crying for her release. The deputy needled McCowin for ignoring her daughter’s needs, hoping to get her to leave. That call was “fabricated” McCowin insists, and the manipulation riles her to this day. Upon recounting her jail experiences to her Public Defender, she recalls that he commented “welcome to my world.”

The jail environment depersonalizes all involved, so the latest allegations of illegal beatings and strip-searches aren’t surprising. The prisoner-guard dynamic creates power struggles that compound the trauma of incarceration. This March, the Health Commission passed Resolution 19-5 declaring; “Incarceration is a Public Health Issue.” It states that “each experience of being incarcerated is physically and psychologically traumatic with lasting harm to individuals, their families, communities.” But it’s also traumatic and corrosive for guards who are easily drawn into abuses they would normally disavow. Too often, “rogue” actors are blamed instead of the pathologies arising from carceral cultures, role expectations, and unchecked power.

At a March 7 hearing before the Government Audits and Oversight Committee, Supervisor Walton sought ways to oversee the Sheriff’s handling of jail complaints. He insisted that the Sheriff’s Office cannot impartially investigate itself. Unlike the SFPD, the Sheriff’s Department isn’t overseen by a commission. Its use-of-force incidents aren’t monitored by the DA’s Office, and citizen complaints aren’t independently reviewed by a body like the Department of Police Accountability. One reason for the difference is that the Police Chief is appointed by the Mayor whereas the Sheriff is elected and accountable to voters.

Deputy Public Defender Chesa Boudin stood in for Adachi. After describing past lapses by Sheriff’s investigators and potential pitfalls with Hennessy’s ad hoc investigative switch, he called for a more consistent and transparent process. He lamented that outcomes of misconduct investigations are generally treated as confidential personnel matters where discipline is determined solely by the Sheriff. Sheriff Hennessy defended her service and department, referring to a chronic lack of staff and funds. However, Hennessy acknowledged that in 2018 there were 119 administrative and citizen complaint investigations, double the number of previous years. She affirmed her decision to delegate the probe of 21 misconduct claims to the Department of Police Accountability (DPA). While the DPA cannot compel deputies to testify, Hennessy agreed to require their cooperation. Since the DPA cannot pursue criminal cases, DPA Director Paul Henderson vowed to promptly refer such cases to the DA. And the DA’s Chief of Staff, Cristine DeBerry, was more than willing to assist and pushed for immediate referrals. It seemed that Jeff Adachi’s death had provided the impetus to collaborate - and resolve his last complaint.

Dr. Derek Kerr is an SF award winning investigational Journalist. Contact: DerekOnVanNess@aol.com

APRIL 2019

City’s Lapses in Rape Reporting and Handling Propel Reforms

By Dr. Derek Kerr

Across the country, police departments convey that they solve rape cases. Usually, they simply close them according to an investigation of 60 police agencies and 70,000 rape cases conducted by Newsy, Reveal and ProPublica.

The public views arrests as the way to clear rape cases. But police agencies often “clear” such cases - even when suspects go free and victims don’t get justice. Nearly half of law enforcement agencies studied cleared more rape cases by “exceptional clearance” than by arresting a suspect in 2016. For example, the Oakland PD reported that 60% of rape cases were cleared in 2016. When journalists obtained those rape records, turns out that only 13% of rapes were solved by arrests while 47% were solved by “exceptional clearance”.

Exceptional clearance is the term used when police have enough evidence to make an arrest, and know who and where the suspect is, but can’t make the arrest due to circumstances outside their control. These include when the suspect is dead or incarcerated, when the District Attorney declines to prosecute, or when the victim drops the case. However, some police agencies stretch this definition.

As shown by above-cited investigation, there is pressure within police agencies to clear cases, rather than keeping them “open” for further investigation or labeling them “suspended” when victims are reluctant to cooperate. High clearance rates are deployed to signify successful policing. But by bundling arrests and exceptionally cleared cases together, the overall clearance rate inflates crime control and makes the City seem safer than it is.

Currently, the SFPD logs crime data into the FBI’s Uniform Crime Reporting Program. That database gives the overall clearance rates for rapes – but not “exceptional clearance” or arrest rates. For example, in 2016 SFPD reported 342 rapes with an improbable 334 (98%) cleared. Adding to the confusion, SFPD’s own CompStat data for 2016 shows 429 rape cases – 87 more than what was reported to the FBI. Perhaps those 87 cases were deemed “unfounded”, or were sexual assaults short of rape, but we can’t tell. The table below shows these discrepancies;

SFPD Rape Case Reports

When journalists request SFPD’s rape data for exceptional clearances, arrest rates or unfounded determinations, they get stone-walled. As Mark Fahey, one of the Reveal collaborators told us; “I talked to the SFPD – both the records department and the Media Relations office – more than a dozen times between January and November 2018. They indicated that they did intend to respond to our request, but missed their own deadlines and eventually became unresponsive…” The Westside Observer’s own records request on 12/27/18 was ignored. A reminder sent on 1/7/19 was acknowledged…but no response to date.

By 2021, the actual outcome of rape cases now dubiously reported as “cleared” will become more transparent. That’s when the FBI will implement its National Incident-Based Reporting System nationwide. This system separates exceptionally cleared cases from arrests - unlike the Uniform Crime Reporting Program used by the SFPD. However, this new system is also flawed as it doesn’t count the many cases deemed “unfounded” by police departments. Omitting unfounded cases can mask the prevalence of sexual violence and impede social interventions. Yet it’s incentivized. Labeling rape cases as unfounded can make police agencies appear more effective since it reduces reported crime rates while boosting clearance rates. Because of the Newsy/Reveal/ProPublica investigation, the FBI plans to add the “unfounded” category to its new reporting system. The SFPD should be doing so already.

The need for reforms emerged when the Board of Supervisors’ Public Safety & Neighborhood Services Committee heard from sexual assault survivors and experts on 4/25/18. In emotional testimony, they emphasized the lack of empathy, respect and investigative zeal from the SFPD’s Special Victims Unit. The City’s Sexual Assault Response Team also faced criticism. That entity includes the SFPD Special Victims Unit, the DA’s prosecutors and its Victim Services Division, SFGH’s Rape Treatment Center, the Medical Examiner’s Toxicology Lab, UCSF’s Trauma Recovery Center along with community groups like SF Women Against Rape. The City agencies involved were faulted for lacking coordination and survivor-centered practices.

Part of the problem is that law enforcement agencies tend to be perpetrator-focused rather than victim-centered. The skepticism of investigators seems like disbelief to traumatized victims. However, some interrogations were described as dismissive and without privacy, leaving survivors feeling shamed and blamed for being assaulted. That sense of re-victimization is accentuated when sex workers and immigrants report rape. Some claimed that named witnesses and perpetrators were not interviewed and that investigations dragged on for years. Despite ongoing service improvements, navigating the City’s sexual assault services remains a lonely, grueling experience. It conveys that rape isn’t treated as a public safety threat. Similar deficiencies were identified in a 2017 report by the Task Force on Sexual Violence commissioned by the Department on the Status of Women and a 2018 report from the Department of Police Accountability.

The lack of transparency in the handling of rape was exemplified when SFPD Commander Greg McEachern couldn’t give the clearance rate for rapes at the Hearing. And the DA’s Chief of Victim Services, Dr. Gena Rodriguez, couldn’t say how many of the 436 sexual assault cases served by her Division in 2017 were charged. Further, the DA’s Annual Reports only show the percent of cases charged that result in convictions – without disclosing that the actual number remains in the low single digits. Prosecuting sexual crimes is difficult. Nationwide, 20% of reported rapes lead to arrests and just 2% to convictions.

So we asked the DA’s Office for the number of rape/sexual assault cases it charged and convicted. From 2013-2017, law enforcement presented an average of 141 arrests/year to DA prosecutors. (The DA’s Victim Services Division sees 3 times more because it also helps victims of unreported and uncharged crimes.) On average, the DA “took action” such as filing new criminal charges, proceeding on another case, revoking probation, or reacting to a parole violation in 52% of cases. But we couldn’t get the actual numbers charged with or convicted of sex crimes because; “…our office does not presently have responsive and reliable information”.

After the Hearing, Supervisor Ronen crafted Ordinance 215-18 creating the Office of Sexual Harassment and Assault Response and Prevention (SHARP). It was enacted in September 2018. Working under the Human Rights Commission, SHARP will have a Director and 2 full-time employees at a cost of around $400,000. Key goals are to reduce victim blaming, promote survivor-centered services and oversee all City agencies dealing with sexual assaults. Its mandate is to receive complaints about City services for sexual assault, help victims navigate the system, compel City employees to meet with complainants, report service failures to involved departments and City Hall, and recommend policies to combat and prevent sexual crimes.

Importantly, SHARP will gain access to and publish sexual assault data that is now unobtainable.

Dr. Derek Kerr was a senior physician at Laguna Honda Hospital where he repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

March 2019

Rape, Stolen Valor Charges Jolt Human Services Agency

by Dr. Derek Kerr

Simmering anger over hiring practices at the Human Services Agency (HSA) turned to dismay after 2 employees were arrested for rape and another accused of stolen valor.

Gabriel Jones, a promising 45-year old Training Manager for HSA’s Welfare-to-Work Services is embattled after 2 years on the job. In August 2018, he received an Employee of the Month award from the Human Services Commission for his “excellent project management, supervision and analytical skills”. The notice of his award, widely distributed throughout HSA, also lauded how; “Gabe started his career serving our country…as a Navy SEAL. After an admirable career in the Navy, Gabe transitioned to serving the local community”. Jones earned a salary of $92,927 ($125,631 with benefits) in 2017.

Five months later, he was accused of stolen valor by the veteran-operated “Military Phonies” website. Reportedly, Jones had been representing himself as a former Navy SEAL with combat duties and injuries in various war theaters. However, military records disclosed by Military Phonies show that he actively served the Navy from 1998-2000 – with no overseas deployments, SEAL training or service. His 2002 discharge from the Naval Reserve Personnel Center was “for the convenience of the government” these records show. On 1/22/19, Jones apparently sought a retraction of the “false allegations”. Military Phonies responded by asking for his BUD/S class number. All SEALS take a numbered 6-month Basic Underwater Demolition/SEAL class but Jones’ records showed none. And the SEAL’s roster is not classified.

The 2013 Stolen Valor Act imposes penalties for fraudulently claiming to have received certain military awards if doing so secures money, property or other tangible benefits. HSA’s Human Resources Department (HR) will be sorting out whether Jones embellished his military service and whether tangible employment benefits ensued.

However, HR Director Luenna Kim had to surmount a bigger challenge – in her own office. Jared A. Harris, a 34-year old attorney and Labor Relations Analyst was arrested for rape in Dublin in November 2018. A San Leandro resident, he is being held without bail at Santa Rita Jail according to the Alameda County Inmate Locator. His pre-trial hearing will be in March.

Prior to working at HSA, Harris was an Investigative Analyst with the DA’s Office. Although his 2017 HSA test scores were excellent, sources say his arrival at HSA entailed some controversy. A University of San Francisco law school graduate, he was admitted to the California Bar in 2014 and remains in good standing. Records show he earned a salary of $82,108 ($112,687 with benefits) in 2017. HSA disclosed that he’s no longer employed.

There’s more. In June 2018, long-time HSA engineer Albert K. Broohm, age 59, was arrested in San Francisco on a warrant for aggravated sexual assault of a child under 10. A stunned HSA colleague describes him as “the nicest person”. A resident of Hayward, Broohm remains incarcerated at Santa Rita Jail with a $2.5 million bail. His pre-trial hearing is due in February. He too is no longer employed.

Given HSA’s 2,000 employees, occasional scandals are expected but not 3 in 7 months. HSA has been a hotbed of protests about “cronyism, nepotism and favoritism” — the unfair hiring and promotion of unqualified personnel — as the Westside Observer reported in May and June 2016. These events have convinced some current and former employees that staff selection is flawed. After all, HSA’s “Strategic Plan for 2016-2021” was supposed to “improve staff morale” and the “…quality of hiring process”.

Dr. Derek Kerr was a senior physician at Laguna Honda Hospital where he repeatedly exposed wrongdoing by the Dept. of Public Health.: DerekOnVanNess@aol.com

March 2019

The Way We Were

by Dr. Derek Kerr

Each Branch will hold 3 special events. The West Portal Library held an opening event on Jan. 26 and two more will be held on Feb. 23 and 24 when New Deal scholar Harvey Smith will speak about the project and the era, at 190 Lenox Way and Ulloa. Details or call librarian Melissa Riley at 355-5790. Ms. Riley tells us the West Portal Library itself is a product of the WPA and will celebrate its 80th birthday with an open house party on May 4th, 2019.

Between 1938 and 1940, the New Deal’s Works Progress Administration (WPA) hired some 300 artisans to create a detailed wooden model of San Francisco for the Planning Commission. The idea came from notable SF architect Timothy Pflueger. The 3-D scale model served as a planning tool for the many WPA projects, such as the approaches to Golden Gate Bridge and the Bay Bridge itself, as well as the development of Treasure Island. These projects kept the City working during the Great Depression. Built at a scale of 1 inch to 100 feet, the 6,000 wood blocks of this mini-mundi covered 1000 square feet. The cost; $100,000. The model was displayed at the Golden Gate International Expo in 1939, then at City Hall in 1940. It was packed away in 1942 to make room for administrative projects during WW II. In the late '60s, it was shipped to UC Berkeley for urban design studies.

Last year, the SF Museum of Modern Art, in partnership with the SF Public Library and the Dutch artist duo Liesbeth Bik and Jos van der Pol, restored the model of San Francisco circa 1938. The goal was to reunite the model with the public in a memorable way and promote civic engagement. The result is an exhibition called “Take Part” whereby each branch of the Public Library will display sections of the scale model corresponding to its neighborhood. The unveiling will reveal something about the way we were and the City’s evolution. Events and programs based on local interests will accompany the display from January 25 through March 25. For more information contact your local library and see Take Part

Opening ceremony for the W.P.A. Scale Model of San Francisco, April 1940; image courtesy of the San Francisco Department of City Planning Records, San Francisco History Center, San Francisco Public Library.

Dr. Derek Kerr was a senior physician at Laguna Honda Hospital where he repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

LIBRARY BRANCH EVENTS

2. publicknowledge.sfmoma.org/events

3. publicknowledge.sfmoma.org/events/categories/west-portal

February 2019

Moving Toward a San Francisco Public Bank

By Dr. Derek Kerr

Animated by indigenous tribes protesting the Dakota Access Pipeline and its threat to the Standing Rock Sioux water rights, local supporters lobbied to divest from banks funding oil pipelines. In March 2017, the Board of Supervisors directed City Treasurer Jose Cisneros to do so. But those banks also financed private prisons, hedge funds, weapons manufacturers, fossil fuels, tobacco interests, and luxury real estate. Plus their predatory practices cheated customers and tanked the financial system. When it came to loans for City housing, infrastructure, transit and higher education, their interest charges were steep. Since the Westside Observer’s May 2017 article “A Public Bank for San Francisco” appeared, much has happened.

During the early 1900s, North Dakota’s economy was based on agriculture, specifically wheat. Frequent drought and harsh winters didn’t make it easy to earn a living. The arduous growing season was further complicated by grain dealers outside the state who suppressed grain prices, farm suppliers who increased their prices, and banks in Minneapolis and Chicago which raised the interest rates on farm loans, sometimes up to 12%.North Dakotans were frustrated and attempts to legislate fairer business practices failed.

A.C. Townley, a politician who was fired from the Socialist Party, organized the Non-Partisan League with the intent of creating a farm organization that protected the social and economic position of the farmer.

The Non-Partisan League gained control of the Governor’s office, majority control of the House of Representatives and one third of the seats in the Senate in 1918. Their platform included state ownership and control of marketing and credit agencies. In 1919, the state legislature established Bank of North Dakota (BND) and the North Dakota Mill and Elevator Association. BND opened July 28, 1919 with $2 million of capital.

Per the Controller’s SF OpenBook website, the City paid private banks a whopping $581,707,462 in debt interest on bonds and loans in 2017-18. Of that amount, taxpayers owed up to $121 million, according to the Comprehensive Annual Financial Report. The rest was owed by ratepayers using water, transit, airport and other revenue-generating services. Either way, bank executives, shareholders and bond holders reaped the proceeds. Also, the Treasurer’s Office reported $864,000 in bank fees last year. In response to public pressure to save money and place our money where our values are, City officials, like those in Oakland and Los Angeles, began exploring Public Banks utilities that serve the public good.

Pursuant to the Board of Supervisors’ Resolution 152-17, sponsored by Malia Cohen, Sandra Lee Fewer, Jeff Sheehy, and Hillary Ronen, Treasurer Cisneros organized a 16-member Municipal Bank Feasibility Task Force. At Supervisor Fewer’s request, the Budget & Legislative Analyst’s Office issued a November 2017 report upholding Public Banking and other community supportive banking options.

After 9 months of deliberations and consultations with experts and other municipalities, the Municipal Bank Feasibility Task Force released an Executive Summary in September 2018. It presented 4 models.

The Wholesale Municipal Bank, providing real estate, small business, and student loans, was based on the nation’s oldest public bank, the Bank of North Dakota. It would cost $134 million upfront, plus $425 million over 10 years, and would lose $60 million before showing a profit by year 10. However, a full-service municipal bank offering direct loans to consumers, small businesses, and students would lose $84 million over 10 years and “will never be profitable.”

The most viable model, a Commercial Municipal Bank, would use the City’s General Fund for lending. By not taking deposits, it would eliminate the complexity and costs of a getting a charter. It would make money by year 2, and a $17 million profit by year 10. But it wouldn’t break from Wall Street or provide consumer loans.

On 12/13/18, the Board’s Budget & Finance Committee heard updates from the Treasurer’s Office regarding the Municipal Banking Task Force. Its service priorities are affordable housing, small businesses, infrastructure, unbanked residents, then cannabis. Turns out the 4 models proposed in September took flak for being “too small – not thinking big” according to Amanda Kahn Fried. Public input also favored divesting from Bank of America and Wells Fargo. However, the Treasurer’s Office finds it daunting to “create a Public Bank from scratch,” declines to recommend a Public Bank, and hasn’t provided a roadmap to establish one. By focusing on the costs of a Public Bank, the social costs of depositing public dollars in private banks are obscured. Supervisors Cohen and Fewer urged the Treasurer’s Office to “think big,” move beyond its comfort zone, and create a path forward with State legislators. The goal would be “local control, financial empowerment, and transparency” for the City’s $11 billion bank balance. Accordingly, the Task Force will present 3 new models: Divestment, Re-Investment, and a Combination at its last meeting at 3 PM on January 31, Room 305, City Hall.

The counting room at the Bank of North Dakota

Meanwhile, on 1/10/19 over 200 people packed the Women’s Building to launch the San Francisco Public Bank Coalition (SFPublicBank.org). Among the speakers were former Supervisor John Avalos and Supervisor Fewer. Avalos, who pioneered hearings on Public Banking in 2011, recalled how private banks were bailed out by taxpayers, while thousands of residents lost their homes or were displaced from the City. He too defaulted and lost his home. Supervisor Fewer emphasized “there is no social justice without economic justice.” Since money is power, she wondered why the City renders its $11 billion fund unto predatory banks.

Julie Carter from the California Nurses Association explained how big banks fund corporations that exploit people and harm public health. She viewed a Public Bank as supporting public health and well-being, while serving as an antidote to corporate greed and profiteering. Claire Lau from the SF Berniecrats, and Fernando Marti from the Council of Community Housing Organizations, also voiced enthusiastic support. Dozens of other community groups support the concept. SF Public Bank Coalition organizers Kurtis Wu and Jackie Fielder announced their intention to place a Public Bank Charter Amendment before voters in November. Supporters can check SFPublicBank.org for educational sessions and work groups.

Regulatory and political hurdles abound. Last November, Los Angeles placed a Charter Amendment on the ballot to allow the creation of a Public Bank. A robust 44% of voters approved - but it failed. Oakland, Berkeley and Alameda commissioned a study concluding that a multi-Jurisdictional Public Bank was feasible. But the Oakland Treasurer’s Office rejected it citing “no clear roadmap, structure or supporting data.” As for cannabis, an exhaustive study by the California Treasurer’s Office found that “No State-backed financial institution designed to support the cannabis industry is feasible. All alternatives fail on both risk and financial grounds.”Banks handling marijuana proceeds risk asset seizures and employee prosecutions for enabling a federal crime.

Yet the quest to transform banking is gaining momentum. In 2016, the second US Public Bank, the Territorial Bank of American Samoa, opened with Federal Reserve approval. Hundreds of Public Banks thrive in Germany and Europe. The nascent Green New Deal movement dovetails with Public Banking. Recall the Great Depression when President Roosevelt tapped the publicly-owned Reconstruction Finance Corporation to finance New Deal infrastructure – without Congressional appropriations. While campaigning, now-Governor Newsom declared, “We must break Wall Street’s chokehold on state finances and develop our own state bank.”

Meanwhile, City Treasurer Cisneros actively pursues socially responsible investments. In 2018, the “Safe, Sound and Local” program allocated $80 million from the County’s Pooled Investment Fund to banks and credit unions to boost community lending. Other City agencies facilitate loans. For example, the Mayor’s Office of Community & Economic Development backs $86 million in home loans for lower-income residents. Such services will expand as support for a Public Bank grows.

Dr. Derek Kerr was a senior physician at Laguna Honda Hospital where he repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

February 2019

Laguna Honda Grapples with Fleeing Patients

Dr. Derek Kerr & Dr. Maria Rivero

Three years ago, in Exodus from Laguna Honda Hospital, The Westside Observer reported a whopping increase in the number of LHH patients who fled the premises. Now, LHH managers are publicly acknowledging the exodus and testing ways to reduce “unplanned discharges.” Unplanned discharges refer to patients who sign out of the hospital Against Medical Advice (AMA), or who simply walk out, Absent Without Official Leave (AWOL). Less than half of AWOL patients eventually return to LHH.

Janet Gillen Social Services Director

At LHH’s 11/13/18 Joint Conference Committee, a public meeting of LHH managers and Health Commissioners, Social Services Director Janet Gillen presented an analysis of unplanned discharges. She confirmed that FY 2014-15 saw a significant spike, with 23.6% of all community discharges leaving AMA or AWOL. In subsequent years, the rate of unplanned discharges hovered between 18% and 24%. And in the year ending in September 2018, the AMA/AWOL rate hit 26%, a new high. That’s double the historical rate around 13%,even in the old LHH with its open wards and fewer amenities.

Concurrently, LHH is coping with a rise in unruly patients with “behaviors affecting others” like wandering, screaming, aggression, and rejecting care. The new LHH’s private and semi-private rooms were supposed to contain such jarring behaviors. Instead, the proportion of patients showing bothersome behaviors steadily increased from 23% in 2013 to 31% in 2017, almost twice the State nursing home average of 17%. Recently, largely by changing reporting standards, LHH claims that patients with disruptive behaviors fell to 23%. Hardly a healing environment. Nothing was said about bothersome patients provoking others to bail from LHH.

LHH is working hard to reduce the turmoil while keeping its roots hidden. Without addressing what had been changed in its admissions process, or the population it serves, LHH set a goal of reducing the number of unplanned discharges in 2018. But instead of reducing these departures below the 52 cases recorded in FY 2016-17, LHH reached way back to an easier target, FY 2014-15, when there were 74 unplanned discharges.

Compared to the 74 unplanned discharges (33 AMA and 41 AWOL) in 2014-15, there were 45 (16 AMA and 29 AWOL) in 2017-18. That reduction in absolute numbers was deemed a success. However, the percentage of unplanned discharges is identical at 24% for both years. That’s partly because there were many fewer discharges last year, 188 compared to 313 in 2014-15. So last year’s drop mirrored the decline in total discharges and admissions. Nonetheless, for the past 4 years, about a quarter of LHH discharges actually ran away.

Why do LHH patients flee? Here, we are baffled by contradictions. Between 2010 and 2015, prior the big exodus, the reasons for AMA and AWOL discharges included 33% who “Did not want to be here” and 26% related to substance abuse. Now, according to Gillen’s November presentation, 70% of unplanned discharges are related to substance abuse. Only 18% didn’t want to be at LHH. However, in a September presentation, Chief Psychiatrist Dr. Yifang Qian insisted that merely 18% of unplanned discharges were tied to substance abuse between January 2017 and April 2018. If that 18% is correct, treating substance abusers won’t do much to curb runaways. Yet, virtually all efforts to reduce abrupt decampments seem directed at drug users. The conflicting numbers presented by Ms. Gillen and Dr. Qian are unlikely to guide effective interventions. We asked Ms. Gillen and Dr. Qian to clarify their discrepancies. No response yet.

Currently, records show that 25% of LHH admissions are designated as homeless. Surprisingly little was said about caring for these sometimes challenging patients. Although LHH documents are almost devoid of demographics, Gillen did say that most AMA discharges were homeless. But their presence within the larger AWOL contingent wasn’t disclosed. Gillen mentioned in passing that 44% of unplanned discharges fled from the Rehabilitation Unit, and 38% from the HIV/AIDS ward. Such information should help to target specialized services.

LHH deploys a host of interventions to cut unplanned discharges. These include early identification of patients troubled by drug cravings, as well as more support groups, motivational counseling, and psychiatric consultations. Surprisingly, a 16-month trial of Medication Assisted Treatment, offering buprenorphine or methadone to opioid users, was a flop. Turns out only 1% of unplanned discharges were opioid users. So, treating heroin addicts didn’t impact AMA and AWOL discharges. Another 17% of runaways craved non-opioids like cocaine, alcohol, and methamphetamine. These drug habits cannot be treated with methadone or buprenorphine, though psychotherapy, support groups, and anti-depressants can help. Even so, LHH Psychiatry surveys show that addiction treatments won’t have a major impact on patient flight. Wisely, LHH recently abandoned its draconian policy of tobacco prohibition. After 3 years of harassing smokers who defied no smoking rules, and causing some to rebel by going AWOL, LHH has restored a patient smoking area.

Intriguingly, LHH hasn’t explained why it admits patients who “do not want to be here,” comprising 18% to 35% of AMA and AWOL departures. Were these patients appropriately evaluated and screened prior to admission? That query is taboo because screening impedes flow, namely the Health Department’s Flow Project. Flow refers to flushing non-paying patients out of San Francisco General Hospital (SFGH) in order to open up beds for acute cases and generate revenue from new admissions. Most LHH admissions come from SFGH. When SFGH patients exceed the allotted length of stay for their ailment, state and federal reimbursement stops. Typically, patients who complete treatment are sent home to recuperate. But the homeless or mentally impaired cannot be readily discharged. Rushing them into LHH saves money.

There are costs. This year LHH faces a $2.5 million budget shortfall “mainly due to the increased need for coaches in an effort to facilitate patient flow within the network.” Coaches are staffers assigned to watch unruly or unsafe patients. And there are escalating costs for security services, including staffing, patrols, security technology and environmental controls. For example, every AWOL event triggers a burdensome campus-wide search by the Sheriff’s Department and busy LHH staff. Meanwhile, LHH becomes more guarded and restrictive.

Finally, San Francisco lacks nursing home beds, shelters and housing. The Health Department only provides 45 Medical Respite beds on Mission Street for homeless persons discharged from SFGH. So, some patients are sent to LHH even if they don’t want to be there. Because LHH always has a waiting list, folks who want to stay at LHH get displaced by those who don’t.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: watchdogs@westsideobserver.com

December 2018

Proposition B

Mayor London Breed's Aversion to Sunshine Clouds Prop B

by Dr. Derek Kerr

London Breed's ascent into Room 200 portends a loss in City Hall transparency. If Proposition B – the City's "Privacy First Policy" - passes in November, it would allow Supervisors to amend the Sunshine Ordinance without voter approval. And thus, our sunshine-averse Mayor could veto any amendment to reinforce it.

As District 5 Supervisor, Breed repeatedly defied the Sunshine Ordinance by evading public records requests. When thwarted requesters filed complaints with the Sunshine Ordinance Task Force (SOTF), the panel that adjudicates alleged violations of the Ordinance, Breed ignored SOTF summons to attend its hearings. Her intransigence came to a head in August 2017 when public advocate/gadfly Michael Petrelis asked then-Board President Breed for a list of addresses she had blocked from her Twitter account. No response. Petrelis sent 2 reminder emails. Still nothing. Unlike Breed, other Supervisors responded to the same request.

"Blocked" means that those individuals cannot view what Breed is tweeting, or converse with her via Twitter. Trouble is, some of those tweets entail City business. The case was timely because a March 2017 State Supreme Court ruling (San Jose v Superior Court) established that public business conducted on personal electronic devices or accounts is subject to disclosure. (In May 2018, a US District Court ruled that President Trump violated the First Amendment by blocking his critics from his Twitter account.)

Breed's stonewalling was odd. To an identical request from Petrelis in January 2016, Breed had responded with a list of 20 names. So in August 2017, Petrelis filed sunshine complaint #17094. Over the next 7 months, the SOTF and its committees scheduled 5 hearings to assess the case. Breed never attended, despite several SOTF reminders "to explain the basis of your decision to withhold requested records." The SOTF determined that Breed had violated the Sunshine Ordinance by withholding public records and failing to attend its hearings. This April, frustrated SOTF members voted 7-0 to refer Breed's delinquencies to the District Attorney to "ensure compliance."

In a May 1st letter to DA George Gascon, SOTF Chair Bruce Wolfe explained that Breed has "a history of non-compliance with the Sunshine Ordinance and has failed to respond to public records requests and failed to attend SOTF hearings." Wolfe noted Breed's non-compliance in 5 prior cases: #15029-2, #15038, #15060, #17018 and #17047. The rebuke stirred the Mission Local to describe Breed as one who "continually flouts public records law" and "has no patience for public records requests or the task force that oversees them." On May 9th, Gascon punted the case to the Ethics Commission where it awaits resolution.

Breed's aversion to public scrutiny of her public service isn't new. As The Westside Observer reported in October 2015, Breed had refused to disclose her work calendars. When the Board of Supervisors voted to disclose its calendars and the names of participants in its official meetings, Breed voiced the sole no vote. On second reading, Breed folded. Yet, that September she deployed her unique aversion to calendar disclosures as a litmus-test for SOTF applicants.

Thanks to a tip from Patrick Monette-Shaw, here are Breed's sunshine violations per the SOTF;

In complaint #15029-2 Michael Petrelis showed that his request for Breed's outgoing emails in January 2014 was ignored. When the SOTF met in June 2015, it found his request was unduly broad and asked him to whittle it down. Nobody from Breed's office appeared. Although her aides Connor Johnson and Iris Wong did attend a follow-up sub-committee hearing, Breed was cited for dodging the full SOTF hearing and failing to respond in any way to a records request.

In complaint #15038 from March 2015, Ray Hartz requested Breed's records about approving gifts from Friends of the Public Library. No response. The SOTF unanimously cited Breed for failure to provide the records – and for failing to appear or send a representative to its hearing. The matter was referred to the SOTF's Compliance & Amendments Committee. There, Breed's aides Connor Johnson and Iris Wong did show up. Offended, Johnson claimed he hadn't seen Hartz's request, had no responsive records, and had replied - to the Clerk of the Board! By then, Hartz had received the requested records from other Supervisors. Nevertheless, Breed's aides were instructed to send a written response directly to Hartz - after 7 months.

In complaint #15060 from December 2015, Michael Petrelis requested Breed's work calendars for February to April 2015. Astoundingly, he was told that Breed didn't keep calendars. In October 2016, he presented his complaint before the SOTF's Compliance & Amendments Committee. Connor Johnson and Iris Wong did attend - and agreed to furnish Breed's calendars. They had to. By then, the Board of Supervisors had voted to disclose its work calendars - despite Breed's opposition. The SOTF cited Breed for failing to timely respond to a public records request.

In complaint #17018 from March 2017, journalist Josh Wolf requested a list of persons "blocked" from Breed's Twitter account. No response. Wolf's follow-up request 10 days later was also ignored. The SOTF concluded that Breed could block spammers and trolls, but had to disclose who she blocked. Further, Breed had violated the Sunshine Ordinance by withholding public records and not sending any representative to 2 hearings.

In complaint #17047 from May 2017, political blogger Angela Gerben requested a list of names that Breed blocked from her Twitter and Facebook accounts. No response. In contrast, other Supervisors responded. The SOTF reviewed the case in June 2017, but couldn't proceed because neither Breed nor Gerben attended its hearing. Due to commuting difficulties, Gerben withdrew her complaint. Breed withheld her records.

An instructive exception to Breed's intransigence occurred with SOTF complaint #15067 wherein Petrelis stated that Breed had withheld emails from March and April 2015. This time, Connor Johnson and Iris Wong appeared right away - and spoke out. They claimed Petrelis' request initially landed in the "junk folder." Then they said a City Attorney told them the request, involving 1,000 emails, was overly broad and burdensome. Johnson condemned Petrelis for "Pushing the boundaries of the Sunshine Ordinance at every turn" and using the law "for harassment and punitive purposes." But by showing up at the first SOTF hearing, they saved everyone's time, reaching a compromise to disclose only one week's emails.

Yet, Breed's sunshine aversion persists. This August, Petrelis requested Breed's calendars for May and June 2018, right before she was sworn in as Mayor. He received a same-day response - 41 grossly-redacted pages. He posted them on Google drive for all to see, then filed a sunshine complaint alleging egregious redactions. Auspiciously perhaps, a subsequent request for Breed's mayoral calendars received a prompt response. But judging from past behavior, and the ominous implications of Prop B, a sunshine eclipse may characterize Mayor Breed's tenure.

Dr. Derek Kerr is a member of the Society of Professional Journalists and an investigative reporter. Contact: watchdogs@westsideobserver.com

October 2018

“Privacy First Policy” Threatens Sunshine Laws

by Dr. Derek Kerr

The “Privacy First Policy” (PFP), a Charter amendment proposed by Supervisor Peskin to safeguard private data from abuse by tech-based companies, undercuts the City’s Sunshine Ordinance. Set to appear on the November ballot as Proposition B, it heightens tensions between privacy and transparency. By conferring “First” place to privacy, transparency may be sacrificed.

Origins of the Privacy First Policy: Drafted by Peskin’s legislative aide Lee Hepner, a respected veteran of the Sunshine Ordinance Task force, and Deputy City Attorney Paul Zarefsky, the PFP was initially co-sponsored by Supervisors Yee, Ronen, Kim, Fewer and Sheehy. It propounds 11 privacy principles. These affirm the public’s right to know how its personal information is being used, how to access that information to ensure its accuracy, and how to provide informed consent for the use of that information by the City or parties benefitting from city entitlements. The bill is offered as guiding rather than binding City policy. In a round-about opaque way, it directs the City Administrator to devise an Ordinance implementing the policy guidelines by May 2019. Then the Supervisors will reconsider it.

One impetus for the upcoming Prop B is a scandal: the political data mining firm Cambridge Analytica exploited the personal information of millions of Facebook users to target ads for Donald Trump’s presidential campaign. Locally, tech companies deliver services that also capture users’ private data and compile expansive personal profiles. Nothing prevents Twitter, Airbnb, Uber, Amazon and a host of City contractors from selling personal information they acquire while doing business in the City. And, Supervisor Peskin wants to set a standard for the nation. All’s well – except for one deal-busting clause, and stealthy procedures.

Sources of Consternation and Mistrust: Here’s the shock clause, in the PFT’s subsection (i);

“Notwithstanding any other provision of the Charter, the Board of Supervisors is authorized by ordinance to amend voter-approved ordinances regarding privacy, open meeting or public records, provided that any such amendment is not inconsistent with the purpose or intent of the voter-approved ordinances.”

Who decides if an amendment of the Sunshine Ordinance is “not inconsistent” with its purpose? The City Attorney, according to Peskin. City Hall would rule on voter intent – and its own intent. Trouble is, the City Attorney has dual loyalties, representing the public and City government. When the two clash, the City Attorney defends City officials. It’s not a hypothetical concern. Recall how City Attorney spokesman Matt Dorsey told the New York Times in 2011 that the Sunshine Ordinance Task Force (SOTF) was; “…a rogue, lawless jury that beats up on City departments…” As the Westside Observer has repeatedly reported, the City Attorney advises the Ethics Commission to dismiss virtually all sunshine violation referrals. Plus, the City Attorney is plenty empowered already - as the “Supervisor of Records” to adjudicate public appeals for withheld City records, and as legal counsel to the SOTF.

Granting the City Attorney and Supervisors Charter powers to amend the Sunshine Ordinance portends a power grab. It happened before. In 2014, a cabal of Supervisors (Wiener, Chiu, Farrell, Tang and Yee) purged the SOTF and blocked qualified applicants who were deemed too independent. Instead, City Hall shills were installed. Prop B exposes the Sunshine Ordinance to tampering by the very City officials who contend with sunshine requests, and battle sunshine complaints. Unlike California’s Consumer Privacy Act, Prop B becomes a Trojan Horse that slips the alteration of open government laws into a bill that appears to protect consumer information. If it passes, City officials will be tempted to lessen transparency – despite assurances to the contrary.

The current Sunshine Ordinance was voter-initiated and approved As such, it can only be amended by voters, not Supervisors. That’s apt because sunshine complaints are all directed against City Hall and its agencies. Supervisors and City Attorneys are regular targets. Allowing them to modify the Sunshine Ordinance invites conflicts of interest. Since 1999 the Board hasn’t touched the Ordinance, except to add something. In 2008 — at the request of the SOTF - Supervisors amended the requirement that audio and video recordings of City Hall meetings be taped, to allow them to be digitally recorded, and available to the public in digital form. Under public pressure, in 2015 Supervisors required themselves and other top officials to maintain work calendars as public records, and to identify participants in official meetings. These add-ons neither altered existing mandates, nor bypassed the SOTF — something that Prop B would permit.

Stakeholders Beware: Almost privately, PFP was composed within the confines of City Hall. Although some tech companies were consulted, the bill received a perfunctory, unnoticed introduction at the May 22nd Board of Supervisors meeting. Then came two fleeting reviews before the Rules Committee in July. The proposal escaped public input, save for a single sunshine concern voiced by Peter Warfield from the Library Users Association. It was quickly adopted by the full Board on July 24th, with Supervisor Cohen joining as a co-sponsor. Only then did Supervisor Peskin mention his intent to work with “a broader set of stakeholders on trailing legislation.” However, the legislation itself says nothing about stakeholders, apart from Supervisors and the City Administrator.

Notably absent was any outreach to the open government advocates who drafted or lobbied for the Sunshine Ordinance that 58% of voters passed as an amendment in 1999. Many of those folks are affiliated with San Franciscans for Sunshine, a grassroots advocacy group. The Sunshine Ordinance Task Force (SOTF), the panel that adjudicates sunshine complaints, was left out of the loop. Also excluded were entities with vital interests in transparency and information access, like the Society of Professional Journalists and the League of Women Voters. Both groups nominate candidates for SOTF seats. Though Peskin and Hepner have privately expressed regret for this astonishing lapse, the PFP hurtled onward without a “broader set of stakeholders.”

Granted, the PFP/Prop B is well-intended. We need protection from digital platforms and tech firms that harvest, share, and monetize our private data. Granted, its sponsors generally support open government. Despite outreach lapses, they likely wanted to facilitate updates to the Sunshine Ordinance, some of which are sought by sunshine advocates. Alarmingly however, Prop B asks voters to give up power for politicians’ good intentions. Between intent and execution lurks the fox. Giving future politicians the leeway to amend the Sunshine Ordinance is too risky. A sunshine-averse City Hall could simply deem self-serving revisions as “not inconsistent” with the Sunshine Ordinance. Trust us, anyone?

Dr. Derek Kerr is a member of the Society of Professional Journalists and an investigative reporter. Contact: watchdogs@westsideobserver.com

Sept 2018

No Takers Yet: Laguna Honda’s Aid-In-Dying Program

by Dr. Derek Kerr & Dr. Maria Rivero

As reported in the June 2017 Westside Observer (WSO), Laguna Honda Hospital (LHH) approved a medical aid-in-dying policy last May. Based on California’s 2016 End of Life Options Act, it allows terminally ill patients with decision-making capacity to self-administer prescribed lethal sedatives in the hospital. While awaiting LHH’s promised annual report on its aid-in-dying program, the WSO requested records showing the number of lethal prescriptions issued and the number of associated deaths. LHH’s response: “zero” and “zero”.

Zero takers may seem surprising in a hospital that reported 181 deaths in 2017. However, few dying patients choose this option. For example, Oregon’s 20 year old “Death with Dignity” program accounted for just 144 deaths in 2017. Despite a steady rise in participants, that’s merely 0.4% of Oregon deaths. In California, data for the first 6 months of the End of Life Options program, June through December 2016, show that 191 patients received lethal prescriptions. But only 111 (58%) took them. That accounts for 0.06% of California deaths during that period. Data for 2017 show that 577 prescriptions were issued and 374 (65%) of those patients died as a result, amounting to just 0.14% of California deaths

There are other reasons for LHH’s zero participation rate. In both Oregon and California, the overwhelming majority who opted for aid-in-dying were over 65, white, college-educated, insured cancer patients living at home with Hospice services. LHH serves a different population, and many are cognitively impaired and thus ineligible for aid-in-dying. Since 1989, LHH’s Hospice and Palliative Care Service has provided support for terminally ill patients, thereby reducing demand for life-ending prescriptions. Also, patients may not be aware of LHH’s program – and it’s awkward to inform patients of a life-ending option while in the hospital. Lastly, the majority of LHH physicians and nurses declined to participate.

This May, a legal challenge by the Life Legal Defense Foundation temporarily suspended assisted dying statewide. Despite pleas from Compassion & Choices, a group that supports assisted dying, a Riverside County Superior Court judge invalidated California’s End of Life Options Act - on procedural rather than substantive grounds. In this Ahn v. Hestrin case, the judge ruled that the Act was wrongly passed in a special legislative session geared to restore funding for Medi-Cal recipients. That maneuver was deemed unconstitutional as it skirted the agenda of the special session. Special sessions also bypass committee reviews and potential opposition. After 3 weeks of legal wrangling, Attorney General Xavier Becerra’s motion to stay that ruling was granted by the 4th Circuit Court of Appeal in June. However, arguments to overturn that decision will be heard this July. Given the strong public support for the Act, and the absence of reported abuses, the Legislature could simply reenact the bill in general session if the Court again blocks the Act.

Since the LHH’s medical aid-in-dying program was enthusiastically introduced to the Health Commission last year, and since controversy abounds, the reasons for zero patient participation, the program’s prognosis, and cost, should be disclosed this year.

Dr. Derek Kerr & Dr. Maria Rivero were a senior physician at Laguna Honda Hospital, they are currently investigative reporters. Contact: watchdogs@westsideobserver.com

July 2018

Westside Car Break-Ins Subsiding - Perhaps

by Dr. Derek Kerr

Uncorrected data from the Taraval Police Station's website (www.Taraval.org) show a downward trend in reported auto burglaries. The average number of auto break-ins for 2018 now stands at 115/month. That's a big improvement from the 140/month average logged in 2017, and slightly better than the 118/month rate for 2016. Still, it means 4 local car break-ins each day. While the best protection is to remove belongings from parked cars, many tourists are not aware that this is a major problem in "the City of Love" they have traveled so far to visit. These are the major prey for the unscrupulus .

Here are Taraval Station's under-counts for thefts from autos;

Unfortunately, these numbers are misleading as they're never updated. The updates appear on the SFPD's CompStat (computer statistics) database. Last month, WSO columnist Lou Barberini – a CPA and former SFPD officer, called out the SFPD's CompStat numbers as "phony statistics" because they quietly increase – sometimes substantially - with age. That's partly due to the addition of cases filed after the monthly crime reports are tabulated. But why are large corrections inserted so many months later? Initially, the current crime rate is understated. Waiting for months to update the data creates an illusion of improving crime trends by pairing current undercounts with boosted older numbers.

For example, car break-ins recorded in Taraval Station's monthly reports totaled 1,418 in 2016, but the numbers later logged into CompStat show 1,614. That discrepancy amounts to a 14% surge - from 118 to 135 break-ins/month. Notably suspicious, the 81 auto break-ins Taraval Station recorded for December 2016 later zoomed to 139 in CompStat. Similarly, Taraval reported 1,680 auto break-ins in 2017, while CompStat shows 1,783 – a 6% increase. So instead of 140 break-ins/month, the retroactive average for 2017 was 149/month. Given anecdotal reports that some thefts from autos go unreported, the true numbers are likely about 10% higher than Taraval's official ones.

Last month, SFPD Lt. Tim Paine told the West of twin Peaks Central Council that the recent drop in thefts from autos - and home burglaries - was tied to the arrests of 12 of 30 members of a gang targeting the Westside. Indeed, residential burglaries plunged to 26 this May. That looks better than the 2017 average of 42/month. However, because home burglaries had risen in early 2018, the drop in May merely kept this year's average at 43/month. Because statistics are malleable, and because burglary gangs are resilient, vigilance remains necessary.

Dr. Derek Kerr is an investigative reporter living in San Franciscco
Contact: watchdogs@westsideobserver.com

July 2018

When business owners along Taraval Street arrived at work on Monday morning, they were surprised to find MTA had painted the curbs red along the entire block. Alioto denounced MTA’s process at a press conference three days later

Taraval Merchants See Red Over Parking Ban

by Dr. Derek Kerr

Coursing through the Parkside and Sunset neighborhoods, Taraval Street is dotted with small businesses. Since 2015, their owners have strenuously opposed Metropolitan Transportation Agency (MTA) plans to cut parking along the commercial corridor. The latest flare-up came on Monday, May 5th. Taraval merchants were vexed to see fresh red paint along the entire curb of the 2200 block. Gone were the parking spaces in front of Gene's Liquor & Deli, Universal Fire Equipment, Avenues Pet Hospital, Allstate Insurance and the Zhong Shan Restaurant. Reportedly, there was no forewarning. Although the MTA had promised fliers, business owners say they weren't notified. Worse, the parking ban deters customers and eliminates loading zones for daily deliveries of essential supplies.

Taraval is an MTA Rapid Transit Project. The rationale, per www.muniforward.com/1/, is to speed up transit times, and enhance public safety. The City's Vision Zero program, designed to end pedestrian deaths, labels Taraval between 26th and 36th Avenues a "High Injury Network." However, there are many hazardous roadways and Taraval doesn't rank among Vision Zero's 57 priorities. According to MTA's website, 22 people have been hit getting on and off L-Taraval trains in the last 5 years. The agency blames motorists who failed to stop as passengers were boarding. Just 72% of drivers complied with required stops. In April 2017, a 6-month pilot project sought to improve motorist compliance by deploying street markings, signs and flashing lights on trains. If the compliance rate reached 90%, MTA would have continued these measures. But compliance stalled at 74%. So, 36 parking spaces were expunged in order to install concrete boarding islands at train stops. Apparently, the 2200 block was the last to get red-zoned – and the last straw.

”I was at wits end,” Dianna Anderson (left) of Avenues Pet Hospital said, “I heard mayoral candidate Alioto criticizing MTA’s tactics recently at a mayor’s forum, and it gave me some hope that someone would listen to our small businesses.” Shown above is Ms. Anderson as she talks with Marcello the owner of Marcello’s Restaurant and Sue Hoffman, neighbor

For affected merchants and residents, cutting parking doesn't make sense. Importantly, they feel disrespected by the MTA and abandoned by their Supervisor, Katy Tang. That's why Diana Anderson, co-owner of the Avenues Pet Hospital, appealed to mayoral candidate Angela Alioto. On May 8th, Alioto and her team joined a gathering of irate locals for a 30-person Press Conference outside the Pet Hospital.

No longer able to drop off her dog at the curb, a customer carries a large, sick and wiggling dog, from her car, blocks away to Avenues Pet Hospital which has been at 2221 Taraval for 68 years

Much discontent was directed at MTA officials, its unelected Board and Director Ed Reiskin. Diana Anderson said that over the past 3 years, the agency "just steamrolled over any objections and refused to implement any alternative solutions we offered to address safety concerns." She's also skeptical of MTA's "disingenuous" research assumptions and methodology. She doubts that cutting parking will improve safety, citing the small number of accidents given Taraval's 30,000 daily transit passengers - about one collision per 2.5 million riders. As for speeding up transit, she questioned why a 24 hour/day parking ban was imposed given the paucity of riders outside of morning and evening rush hours. Indeed, several nearly-vacant double buses rumbled by during the noon rally.

Greatwall Hardware Business owner, Albert Chow, President of People of Parkside Sunset( POPS), outlines the inflexible pattern of SFMTA’s responsiveness to neighborhood concerns. “This is not the kind of public interaction I would expect from a Director who makes almost a half-million dollars a year,” Alioto responded

Mike O'Rourke, representing the Transportation Alliance of San Francisco, a grass-roots transit improvement group, characterized the MTA as an "autocratic fiefdom, insulated from the public." Albert Chow, president of People of Parkside Sunset and owner of the Great Wall Hardware store joined past-president Alan Sam who owns the Allstate Insurance office, in decrying the many hours they wasted conveying community concerns, petitions and suggestions to the MTA. They say their pleas for parking recuperation and mitigation of "highly impactful" changes fell on deaf ears. Barry Hermanson, a 40-year Sunset resident and Green Party candidate for US Congress recalled; "SFMTA's original presentation to the community was a fully-formed plan. They didn't come to us to help craft a solution."

Desperate merchants reached out to candidate Alioto, fearing as one merchant remarked “we only have to look at what happened to the businesses along the N Judah Line to see what will soon happen to our Taraval businesses

Economic and service disruptions emerged. Gene, the 20-year owner of Gene's Deli, keeps his shop open until 10 PM. Now, he's losing customers because nearby parking is scarce after 6 PM. Veterinarian Brandy Vickers emphasized that she's legally obligated to see emergency patients, while MTA prohibits emergency access to the hospital. It's risky when guardians of large dogs have to scrounge for parking and haul their ailing pets several blocks for medical attention. Customers are complaining and some have canceled visits for lack of parking.

These complaints are reminiscent of a prior revolt against the MTA, championed in these pages by former District 7 Supervisor Tony Hall. Backed by the Coalition for San Francisco Neighborhoods, a motorist and parking-friendly Proposition L reached the November 2014 ballot. The "Restore Transportation Balance" initiative failed with 37% voter support. Advocates for public transit, pedestrians and bicycles won then and remain formidable. For the Taraval resistance, there may be hope. On May 15th, the Board of Supervisors, citing "frustration" with MTA, agreed to veto certain transit decisions based on neighborhood appeals.

So where was Supervisor Tang? In the October 2016 Westside Observer, Tang promised to update her constituents. Mostly, she's worked to quell acrimony between the pro-parking and pro-safety factions, steering them into small focus groups after MTA hearings devolved into shouting matches. While siding with the MTA, Tang did support merchants who wanted additional study before sacrificing parking for boarding islands. That pilot study delayed alterations for a year. Still, several rally participants viewed Tang as unresponsive to their parking concerns. Hence, the oddity of District 4 merchants appealing to Angela Alioto rather than their own Supervisor.

While Alioto has pledged to "Fast track infrastructure projects to our most heavily traveled corridors," she famously vowed to fire Ed Reiskin and audit MTA's billion dollar budget. That's why she was recruited. And Alioto's message resonated; "Neighborhood serving businesses are suffering devastating losses. With behemoth competition like Amazon on one side and ever more-demanding City agencies like MTA on the other, our small businesses are being squeezed out of San Francisco."

To a Westside Observer query, Supervisor Tang replied that she wasn't invited to the rally but found it "appalling that a Mayoral candidate would insert herself and prey on angry merchants given that she did not partake nor fully understand the history of the project." Tang added; "Our office has been working with SFMTA to recuperate as much parking as possible along Taraval…creating more parking turnover by installing time-limited parking…(and)…looking into creating more passenger loading and business yellow zone parking…" She cautioned; "Just because certain merchants are unhappy…does not mean I have been unresponsive. The SFMTA Board ultimately makes final decisions…and the Board does not always listen to my recommendations."

None of the folks at the rally believed that MTA's goals of transit efficiency and safety justify expelling business-sustaining parking. Is there some other agenda? Alioto suggested that Taraval's reconfiguration is "getting ready for 5 to 7-story construction" - taller, denser buildings on the Westside. Heads nodded. We asked Supervisor Tang if this was the case. Her emailed statement didn't say.

Dr. Derek Kerr is a San Francisco investigative reporter Contact: watchdogs@westsideobserver.com

June 2018

A small group of counter-protesters attempt to disrupt the crowd gathered to protest. SB 827. Photos: Derek Kerr

SB 827 Protesters Vie With Counterprotesters

by Dr. Derek Kerr

SB 827 is dead. It garnered just 4 yes votes from the 13-member Senate Transportation and Housing Committee on 4/17/18. Senator Scott Wiener's audacious and polarizing bill had aimed to boost housing development. But it resorted to preemption of local democracy – over-riding local zoning regulations to promote taller, denser buildings around transit lines. Its presumed beneficiaries; cities and counties, low-income tenants, environmentalists, and trade unions largely rejected it. Hurried amendments to reduce building heights, prevent demolitions and tenant displacements, and add affordable units didn't help. None of the gubernatorial candidates and just one of the City's mayoral candidates, London Breed, supported SB 827. However, Senator Wiener vows to revive the bill next year with backing from big technology firms, realtors and developers.

The bill's defeat was foreshadowed, and its divisiveness was exemplified, at an April 3rd City Hall rally against SB 827. Gathered in opposition was a diverse coalition of tenant, neighborhood, business and civic organizations represented by some 100 multi-ethnic and multi-generational protesters. Many were unmoneyed seniors and half appeared to be Asian. Their message was that SB 827 would wrest control of land use from the City and displace low-income residents. Their slogan; "Say goodbye to your neighborhood." They cheered speakers from communities of color, Supervisors Jane Kim, Aaron Peskin and Sandra Fewer as well as former Mayor Art Agnos. George Wooding, who penned a comprehensive critique of SB 827 in the April Westside Observer, spoke for the Coalition for San Francisco Neighborhoods. But their messages were suppressed.

Shouting them down were barely 20 young, white counter-protesters. These self-described YIMBYs tend to stereotype their opponents as old, wealthy, self-serving, white NIMBYs. So they were taken aback by the turnout. Outnumbered and out-represented by an unexpectedly diverse crowd, the YIMBYs stooped to drowning out the speakers. Riling them up were YIMBY Action head Laura Clark, Bay Area Renters' Federation leader and wannabe District 6 Supervisor Sonja Trauss, and SF Housing Action Coalition director and Wiener acolyte, Todd David. Trauss even barged into the larger group twice yelling and shaking her placard. An offended demonstrator slipped her own poster over Trauss's placard. A Sheriff's deputy asked Trauss to leave that section of the rally. The YIMBY's disruption provoked angry verbal exchanges and soon a team of deputies came out to separate the clashing factions.

Some of the elderly demonstrators were startled and intimidated by the YIMBY's bullying, but stood their ground. Eventually, the larger group began chanting "Shame! Shame!" and "racism" while pointing at the homogeneous YIMBY contingent. True to form, Laura Clark resorted to victimology, later claiming that her boorish comrades had walked into "a trap" and were "gaslighted." The Examiner's Joe Fitzgerald-Rodriguez's provided a nuanced analysis of the clash and its fallout. Tim Redmond of 48 Hills provided additional background including the position statement from the coalition opposing SB 827.

There was something jarring about this exchange. Preoccupied with their cause, the counter demonstrators weren't just disrespectful. They were gleefully disruptive. Instead of seeming aggrieved, they came across as spiteful. They couldn't conceive of any hardships – or tolerate any views - besides their own. It was a tribal display of young, white privilege and entitlement. Hours later, the Board of Supervisors voted 8 to 3 to oppose Wiener's bill.

Getting San Francisco to cede local control of land use may require a catastrophic earthquake. Until then, better outreach and collaboration is needed. With passions aroused and battle lines drawn come opportunities to find common ground and co-create solutions.

Dr. Derek Kerr is San Francisco investigative reporter Contact: watchdogs@westsideobserver.com

May 2018

Who Owns Voting?

by Dr. Derek Kerr & Dr. Maria Rivero

San Franciscans are seeking more autonomy in some of their public-private partnerships. Alongside the movement for a Public Bank is a similar quest for a Public Voting system. There's unease when public votes are counted secretly by private corporations.

The 2000 Bush v. Gore "hanging-chad" debacle drove computerized voting. But the new technology begat glitches. In 2007, California Secretary of State Debra Bowen decertified all of the proprietary voting systems tested because of security and auditing flaws. That year, the SF Elections Commission prioritized voting systems that "provide the maximum level of security and transparency." The Department of Elections (DoE) then contracted with Sequoia Voting Systems. The upfront cost was $9.6 million. In 2010, Dominion Voting Systems acquired Sequoia and became the DoE's vendor. Over 11 years, these contracts have totaled $22 million. The current contract will expire in December 2018 so the Elections Commission has been reviewing its security and transparency goals, nicely summarized at www.SFopenvoting.org.

Current Problems: Dating from the 1990s, the technology running our leased voting systems is antiquated. There's a high risk of malfunction - and vulnerability to hacking, as shown by the breach of voting machines at the 2017 DEFCON conference. Importantly, transparency is lacking since the computer codes operating the machines are proprietary, guarded by copyright. Election officials cannot verify their accuracy or security, or even improve them. Worse, existing machines lack auditing functions and thus, accountability for their transactions. Although vote tabulations are verified by random 1% manual tallies, today's voting machines are "black boxes" when electoral integrity calls for "glass boxes". Compounding these flaws is "vendor lock-in." Only one company can service or adjust the systems. Any adjustment requires vendor permission. And, options are limited with just 3 major vendors in the US. Ultimately, vote tabulations are largely controlled by contractors – not government officials.

Open Source Voting: Accordingly, the Elections Commission wants a publicly-owned voting system with a public infrastructure - like libraries and parks. Hence the move toward open source voting. Open source refers to publicly accessible computer codes licensed by the Open Source Initiative. Unlike proprietary code, open source software is free for anyone to inspect, copy and improve. Because many eyes scrutinize the software, it's harder for hackers to corrupt it unnoticed. Though publicly visible on platforms like GitHub, the code is still controlled by its owner.

Most super-computers use open source codes, as does the US Department of Defense and NASA. That's why former CIA Director R. James Woolsey opined in the New York Times; "To Protect Voting, Use Open Source Software." In fact, federal policy requires that 20% of all new software be open source to facilitate inter-agency sharing, cost-savings and peer review. Personal computers also use open source software via the Firefox and Chrome browsers, or Linux and Android operating systems. Open source systems are transparent, secure, flexible and affordable – unencumbered by proprietary barriers and fees.

Plodding Progress: In 2011, the Board of Supervisors' Voting Systems Task Force recommended an open source voting system. In 2014, the Board unanimously supported such a system, along with a feasibility study by the Local Agency Formation Commission. Based on this study, the Elections Commission passed an Open Source Voting Systems Resolution in 2015, requesting funding to "develop and certify an open source paper-ballot voting system." That means voters would still get paper ballots, and touch-screen votes generate a voter-verified paper trail that can be recounted by hand.

The plan is to advance incrementally, developing and certifying individual components of the voting system. Much of the development would rely upon consultants overseen by the DoE. Meanwhile, groundwork is being laid by the Election Commission's Open Source Voting System Technical Advisory Committee.

Chaired by Commissioner Chris Jerdonek, PhD, its meetings are open. OSVTAC members are excluded from contracting for the new voting system. Cost savings are anticipated from using commercial off-the-shelf computer terminals and optical scanners instead of proprietary hardware. Buying replacement parts would be cheaper. No longer obligated to a single vendor, the DoE could hire any contractor to maintain and upgrade the system. The Elections Commission has requested $4 million for 2018-19 to start building it.

That money awaits the approval of the Mayor's Office and the Committee on Information Technology. Although San Francisco's 5-Year Information & Communication Technology Plan touts an Open Source Voting System among its goals, Universal Broadband is a competing objective. Until a publicly-owned voting system is created, the DoE will spend $2 million/year on an interim proprietary system that accommodates open source software components.

However, the 2016-18 City Budget did provide $300,000 to develop "a new voting system based on open source software. The DoE allocated $100,000 for a salaried Project Director. But no satisfactory candidate applied. So DoE Director John Arntz assumed the role. In September 2017, the DoE engaged Slalom Consulting for $175,000 to "prepare a business case" for an open source voting system.

Risks and Challenges: Slalom's February 2018 draft report emphasizes the complexity involved and the commitment required to build, certify, run and maintain an open source system. One challenge is that the Secretary of State certifies entire voting systems – not individual components. Building it bit by bit or adjusting the code won't be easy because every single change needs to be reported and certified. Plus, the certification process is laborious and complicated. Similarly, a volunteer "open source community" that searches for bugs and delivers fixes will need steady coordination and governance. Research shows that without careful management, open source systems are susceptible to security and compliance risks.

Slalom's initial cost estimates resemble current private contract expenses. Even cost savings from buying off-the-shelf hardware bring security risks as most of these devices are manufactured in other countries. Importantly, no other local government has implemented open source voting. Los Angeles and Travis County, Texas tried but didn't follow through. Ominously, contractors shunned the Texas project because open source systems aren't profitable. Not mentioned in the Slalom draft is the expected resistance from corporate vendors. Slalom's final report, due soon, will recommend more planning.

State Support: State funding is likely because California's voting system is overdue for an upgrade, and an open source model designed here could be freely copied by other counties. Secretary of State Alex Padilla described open source voting as "the ultimate in transparency and accountability." Last year, the Assembly approved a $450 million upgrade to California's voting machines via a 2018 Voting Modernization Bond Act. But that measure stalled in the Senate. However, Governor Brown has proposed spending $134 million from the budget surplus to fix voting systems.

Elections Commissioner Chris Jerdonek seeks public input and support by speaking to community groups. He can be reached at chris.jerdonek@gmail.com.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: watchdogs@westsideobserver.com

April 2018

Parkmerced: Class Action Lawsuit, Secret Settlement, Small Changes

by Dr Derek Kerr

On December 13, 2017, the City's Superior Court approved a settlement in the contentious case of Stewart v. Parkmerced Investors Properties. Notably, "The Settling Parties, and their counsel, are barred from initiating any publicity of the Settlement…and will not respond to requests by any media…"Accordingly, this report was derived from court records

In May 2014, Danilo Stewart and his girlfriend moved to Parkmerced. They settled into a 1 bedroom unit in a 13-story building at 405 Serrano Drive. The rent was $2,391/month. Soon, Stewart developed nausea, dizziness, fatigue and headaches. He attributed these symptoms to moisture and mold caused by building and ventilation defects that allowed water intrusion and excess humidity. Parkmerced abuts Lake Merced and sits 1.3 miles from the ocean. There's fog. Its leases include a "Disclosure of the Presence of Moisture/Mold/Mildew" with prevention tips. Stewart commissioned air quality testing that reportedly showed "excess dampness" and "harmful levels of airborne illness-causing contaminants." Parkmerced responded by performing its own air quality testing. Whatever was done, or not done, Stewart claimed his symptoms persisted, leading to "severe mental and emotional …distress." After 3 months, he deemed his apartment "not habitable" and moved out.

There's more. Rent is due on the first of each month. If payment isn't received within 5 days, Parkmerced charges a $75 late fee. On July 3rd 2014, Stewart paid $2,550 for rent, garbage and utilities, but inadvertently fell $243 short of total dues owed. For this minor shortfall, he was charged $75. The next month, his rent payment was late and another $75 penalty was imposed. Stewart felt that Parkmerced's flat-rate late fee was unfair. It was imposed regardless of the amount owed or the length of the delay. He charged that the late fee was excessive, generating "unlawful profits" by over-compensating Parkmerced for so-called "cost and damage". He alleged that tenants weren't given proper notice of outstanding dues for services and utilities, thereby increasing their risk of fines.

Further, his lease defined the late fee "as additional rent". The SF Residential Rate Stabilization and Arbitration Ordinance doesn't allow late fees to be collected as rent. Although Parkmerced did not raise the basic monthly rent when it imposed a late fee, the Law Offices of Eric Lifschitz considered it an "illegal rent increase". On 4/27/16 a Class Action lawsuit was launched on behalf of 5,186 Parkmerced residents – expressly for those saddled with late fees. It asked for "restitution of all excessive late fees."

Parkmerced moved to dismiss the suit as meritless. It denied that its late fees were rent increases since it "never increased the monthly rent due, merely assessed a late fee when rent wasn't timely paid." In effect, it was an administrative fee, not added rent. Parkmerced also rejected Stewart's claim for punitive damages, citing no evidence of malice or reckless disregard. However, in October 2016 Judge Ronald Quidachay allowed the claim to proceed, since the lease verbiage related the late fee to a rent increase and Stewart's ill-health could be related to malice.

An arduous discovery process ensued during which Parkmerced showed that its late fee was low compared to those of 8 similar City landlords overseeing 75,000 units. Most charged $100 with a range of $75 to $200. An expert witness testified that tailoring late fees wasn't feasible and a flat rate was both reasonable and standard. Moreover, Parkmerced's $75 late fee undervalued its administrative costs for handling delinquencies. For example, in 2016 Parkmerced assessed 2,271 late fees (some were waived) totaling $132,825 of which $111,750 was collected. But its calculated management costs were double the sum recovered.

After a year of wrangling, mediations and conferences, a Final Settlement was approved on 12/13/17. Parkmerced will retain its $75 late fee, but agreed to delete the descriptive phrase "as additional rent" from 3,221 leases. They'll be replaced. Only the late fee language can be revised on the new tenancy agreements. As a good will gesture, Parkmerced reduced its separate fee for bounced checks from $50 to $25. While denying any fault, Parkmerced agreed to pay $120,000 in legal fees, and $30,000 to Danilo Stewart for work loss, environmental testing, health and moving costs, plus acting as the Class representative. Parkmerced residents with concerns about the settlement or their newly-revised leases can contact the Housing Rights Committee of San Francisco at HRCSF.org or 415-947-9085.

(Case #: CGC-16-551696)

Dr. Derek Kerr is an Investigative Reporter living in San Francisco

March 2018

Cannabis Green Rush: Public Health Impacts

by Dr. Derek Kerr and Dr. Maria Rivero

California Proposition 64, the "Adult Use of Marijuana Act", ended cannabis prohibition in November 2016. Garnering 57% of votes statewide - and 74% in San Francisco - it legalized the sale of recreational marijuana. Medical marijuana has been legal in California since 1996. Prop 64 allows adults aged 21 and older to possess 1 ounce of marijuana, or 8 grams of marijuana concentrates, and to cultivate 6 plants at home. To sell marijuana to adults – not just patients – retailers need both State licenses and City permits. Detailed State regulations were issued. On 12/6/17 the City's Cannabis Consumption Ordinance installed the Office of Cannabis with regulations and equity policies for recreational cannabis providers.

In December 2017 the City's Department of Public Health (DPH) reported the potential negative public health impacts of legal cannabis, focusing on youth exposure and neighborhood quality of life. The 20-page "Health Impact Assessment on Legalization of Adult Use Cannabis" aims to minimize health risks, youth exposure, and community disruptions. Based on these guidelines, the DPH reviewed the scientific literature, consulted experts and conducted surveys to come up with key findings and recommendations.

Youth Impacts

Owners of 2505 Noriega have filed in court after the Supervisors upheld an appeal by neighbors to deny the permit granted by the Planning Department.

Although the new law applies to adults, youth may be affected by the legalization of recreational use. Marijuana use among youth has been associated with learning difficulties, lower school performance and occasionally addiction. Recent City surveys cited by the DPH show that 17% of our high-schoolers use marijuana. That number is lower than the national average, partly because of low use rates among Asian students. For example, in 2013-2015, just 2.8% of Chinese students used marijuana versus 43% of African-Americans, 33.6% of Whites and 28% of Latinos/Hispanics. LGBT students use marijuana at twice the overall rate. The DPH advises adding cannabis prevention programming to middle and high school curricula.

Since marijuana has long been tolerated in San Francisco, its formal legalization is unlikely to raise usage or risks for young people. Back in 1991, nearly 80% of San Francisco voters approved Proposition P supporting medical marijuana - 5 years before California legalized it. And in 2006, the Board of Supervisors passed Ordinance 297-06 giving adult possession of marijuana the "lowest law enforcement priority". In 2011, the SFPD reported just 11 arrests for misdemeanor marijuana possession – and all were secondary to other charges. Per the DPH, cannabis legalization in Colorado, Washington, Oregon and Alaska has not resulted in increased use among young people, or adults. That could change with uncontrolled advertising and marketing.

Young people are especially susceptible to advertising, a vulnerability long-exploited by the alcohol and tobacco industries. Conversely, restricting advertising is a proven strategy for preventing drug use. Although Prop 64 restricts advertising by licensed marijuana businesses, there's a loophole. Advertising agencies and Internet platforms that do not directly sell marijuana can freely promote marijuana. That's why local vigilance plays a role. The SF Municipal Transportation Agency stripped marijuana ads from buses in November. The Golden Gate Bridge, Highway and Transportation District, followed suit. The DPH recommends regulating the content and placement of ads as the City does with tobacco and alcohol.

Medical Impacts

Even before the legalization of recreational cannabis, "cannabis-related" hospitalizations and ER visits were increasing. However, from 2011-2015 City hospitalizations and ER visits directly caused by cannabis each numbered about 100 annually. In comparison, alcohol-driven hospital visits were around 80 times higher. The majority of the marijuana cases involved young people under 24 years of age. Interestingly, hospital visits attributed to marijuana were 5 times higher for African-Americans than for the overall population.

A particular concern is poisoning by edible forms of marijuana like cookies, chocolates and candies. When comparing cannabis poisonings between 2006-2010 and 2011-2015, ER visits increased from 133 to 251 while hospitalizations, indicating more serious impairments, rose from 21 to 52. These are small numbers as they cover 5-year periods. And, unlike other drugs, marijuana has never been fatal.

Not mentioned in the DPH report is the August 2016 incident at a Quinceaniera celebration in the Mission District. Nineteen people were taken to the hospital complaining of confusion, dizziness and lethargy. They had eaten gummy-bears containing tetrahydrocannabinol or THC, the psychoactive agent in cannabis. Of the 19 patients, most between 6 and 18 years old, 12 were hospitalized. All recovered within days. According to the UCSF Poison Control Center, 51% of all poisonings afflict children under 5 years of age. Accordingly, the DPH recommends "strong regulations for cannabis edibles". State regulations already prohibit products that appeal to children, require child-resistant packaging and limit the THC content of edibles to 10 mg per serving. Adding the Poison Control Center's number 1-800-222-1222 to packaging could help.

Not addressed in the DPH report is the rate of marijuana dependence: 9% overall and up to 17% among teenagers according to the National Institute on Drug Abuse. Nation-wide, some 138,000 people required costly detox and counseling services in 2015. There's no mention of the 5-fold boost in the potency of today's marijuana strains compared to those of past decades. That raises the risk of intoxication for those who partake after a long absence. Drugged driving isn't mentioned. That may be because research has not yet proven that marijuana significantly increases crash risk. Nevertheless, marijuana can impair critical driving skills. While traffic fatalities fell where medical marijuana became legal, recreational marijuana-linked crashes and fatalities have risen steeply in Colorado and Washington.

Also missing is a Kaiser Permanente study of 35,000 pregnant women. In 2016, 6.6% tested positive for cannabis – rising to 19% among those between 18 and 24 years old. Fetal development may be affected. A 2016 international study of 5,588 women showed a 5-fold rise of pre-term births among those who continued using marijuana during pregnancy. Most medical marijuana dispensary physicians discourage marijuana during pregnancy or when there's a history of addiction or mental illness. And because marijuana harbors bacteria and fungi, patients with compromised immune systems are advised against smoking it. Recreational purveyors won't be so careful. The DPH will launch a public education campaign targeting pregnant women, youth, parents and seniors. For now, it has issued a fact sheet.

Community Impacts

Like retail outlets for alcohol and tobacco, marijuana dispensaries gravitate toward lower income neighborhoods and communities of color. As of August 2017, there were 38 medical marijuana dispensaries in the City, 10 of which were delivery-only services. Of these, 64% were located in 4 neighborhoods: South of Market, Mission, outer Mission and the Financial District. Commercial zoning laws and community participation in the approval process determine this distribution. The Westside's sole approved retailer is Barbary Coast Collective due to open at Irving and 22nd Avenue. Check WeedMaps.com for dispensary locations.

Because alcohol and tobacco outlets are associated with increased youth exposure as well as loitering, altercations, traffic, vehicle accidents, and crime, the DPH is concerned about the impact of marijuana outlets. Although data is sparse, most community complaints mention malodorous marijuana smoke. The risk of robberies is heightened as cannabis retailers are cash-only enterprises with lots of it at hand. Cannabis tourism may impact communities. Nearby retailers may be adversely affected. Importantly, the DPH reports that; "…none of the stakeholders representing organizations serving communities of color, or living in these communities, believed cannabis legalization would benefit communities of color, and instead would have a negative impact…". While the DPH advises limiting cannabis outlets in neighborhoods burdened by drug abuse, it doesn't address the opposition from segments of the Chinese community where cannabis use is very low.

The DPH promotes a "measured approach" that mitigates disparities - and fears - by urging outreach and engagement, especially in lower-income, higher-crime neighborhoods. Health and safety inspections will be conducted jointly with the Office of Cannabis, Fire Department and Department of Building Inspections. Complaints can be lodged by calling 311.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: watchdogs@westsideobserver.com

February 2018

Judicious SFPD Covertly Procuring Military Gear

By Dr. Derek Kerr and Dr. Maria Rivero

The Posse Comitatus Act generally bars the use of soldiers in domestic policing. Soldiers are trained to kill and destroy while cops serve to keep the peace. This distinction has faded with the militarization of police in the War on Drugs and the War on Terror. A warrior mindset has seeped into routine policing as reported by criminologist Peter Kraska, the ACLU in War Comes Home, and journalist Radley Balko’s Rise of the Warrior Cop. Back in 1998, the Bay Guardian covered an SFPD drug raid in War on Crime, warning that when cops become soldiers, the community becomes the enemy. That concern persists.

Militarized policing started in the late 1960s when the LAPD introduced SWAT (Special Weapons and Tactics) teams to quell riots and violent emergencies. Initially driven by fears of civil unrest and armed gangs, SWAT teams gained acceptance. For politicians, SWAT teams confirmed tough-on-crime credentials. For cops, there was the lure of power. But money drove mission creep because SWAT teams generated revenues. Incentivized by federal grants and military gear for the War on Drugs as well as civil asset-forfeiture laws, police forces eventually steered 79% of their SWAT deployments to drug searches and non-violent crimes, versus 7% for emergencies like active-shooter or hostage situations.

Then came massive donations of excess military equipment from the Department of Defense (DOD) under the The National Defense Authorization Act (NDAA). The 1989 NDAA authorized the transfer of military equipment to Federal and State agencies engaged in the War on Drugs. The 1996 NDAA created the “1033 Program” that expanded deliveries to local law enforcement for counter-terrorism as well as counter-narcotics purposes. Because this military gear must be returned if not used within a year, its deployment is abetted. Loosely overseen by the California Office of Emergency Services, the 1033 Program is administered by the Defense Logistics Agency’s Law Enforcement Support Office whose motto is “From Warfighter to Crimefighter”. September 11, 2001 spawned the War on Terror, the Department of Homeland Security (DHS), and the ongoing national State of Emergency. The DHS flooded police departments with grants to address terrorism and disasters – emphasizing national security over humanitarian relief. And, given the rarity of terrorism and disasters, DHS offerings trickled into everyday police work.

The deployment of war equipment to quell civil uprisings raised constitutional concerns after the August 2014 protests and riots in Ferguson, Missouri. Transparency and accountability concerns arose as well. Public access to detailed 1033 Program records had long been denied, yet government audits repeatedly showed extensive waste, fraud and shoddy documentation. Controversy led the Pentagon to release records of shipments to specific police agencies in September 2014. In May 2015, President Obama issued an Executive Order limiting and banning the transfer of battle-field staples like tracked armored vehicles, large-caliber weapons, camouflage uniforms, bayonets and grenade-launchers. He stated that such weaponry can “alienate and intimidate local residents” by casting the police as an “occupying force.” However, on August 28, 2017 President Trump reversed Obama’s Order, citing a need for “life-saving” armaments - and abolished the reporting requirements.

So far, the SFPD has been judicious in procuring castoff militaria. Unlike other Bay Area police departments, the SFPD hasn’t sought combat equipment. DOD records show that between April 2008 and May 2017, the SFPD received 68 surplus items valued at $447,535. This represents the “acquisition cost” to the DOD rather than the market value of its surplus equipment, 36% of which is unused. The SFPD gets the gear for free, but pays shipping and maintenance costs. The big-ticket items were mobile remote-controlled robots, namely an MK3MOD0 valued at $183,329 and 2 Packbot 510s valued at $77,000 each. These machines can probe hazardous sites and dispose of bombs. The remaining items were vision-enhancing devices like thermal and reflex sights, night vision “sniperscopes”, and infrared illuminators for surveillance and reconnaissance.

So the SFPD upgraded its arsenal with cost savings. Of course, with a budget of $583 million, the SFPD can purchase weaponry from private vendors. Or, it can accept gear transferred from other 1033 Program recipients like San Francisco’s FBI office, its Joint Terrorism Task Force partner. The SFPD acknowledged receiving 3 “Remote Ordnance Neutralization robots” from “another law enforcement agency” in this way.

Incidentally, the City’s FBI office is the major local recipient of DOD military surplus. Records show it has acquired at least 1,850 items valued at over $10.9 million since 1996. Major acquisitions include 113 remote controlled robots valued at $6.7 million, 2 “Reconnaissance Camera Systems” valued at $167,000 and 3 armored trucks valued at $195,000. Much of the equipment is quotidian; computers, cameras, flashlights, rescue-equipment, even an “automatic coffee maker” and “exercise bicycles”. The military-grade equipment falls into 3 categories; Explosive Ordnance Disposal like robots, Hazardous Material Disposal including gas detectors, electric blowers, power-washers and X-Ray machines, and Reconnaissance gear including night-vision goggles, gun sights, rifle scopes and viewers using infrared and thermal signals. None of it is offensive combat gear.

Very little of the DOD surplus acquired by the SFPD is reported publicly. A search of the SFPD website for "1033 Program" revealed just 2 entries; 3 mobile decontamination trailers requested in 2002 and 13 forklifts in 2015. Press reports indicated that 2 helicopters were acquired in 1998. None of the military items identified in DOD records appear in Police Commission meeting minutes. Neither are goods transferred from other 1033 Program recipients. Also obscure is the impact on SFPD practices of $28.8 million in grants received from 2003 through 2016 (averaging $2 million annually) from the Department of Homeland Security. Although these grants do not cover weaponry, they do provide military-style equipment and training. Military paradigms legitimize violence and secrecy in police practices. The SFPD's use of force showed "significant deficiencies" per the Justice Department's 2016 "Collaborative Reform Initiative". Its lack of transparency was the theme of the 2015 Civil Grand Jury report "Into the Open."

Now that weapons of war are again readily obtainable – without Pentagon reporting requirements – greater SFPD transparency about its acquisitions is indicated. The frequency and purpose of SWAT team deployments should be publicly reported. And, the Police Commission should re-examine the impact of federal grants on the SFPD's culture and community engagement. The threatened cuts of law enforcement grants to sanctuary cities may have a silver lining; shifting resources away from militarization and toward community policing and property crimes.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing. Both are local San Francisco residents. Contact Derek

November 2017

Outraged YIMBYs Sideswipe Ethics Commission

By Dr. Derek Kerr and Dr. Maria Rivero

The Ethics Commission "recklessly" disregarded the Brown Act and the Sunshine Ordinance when it "brazenly voted to send a letter without proper public notice." The commissioners must "immediately resign" or face suspension. Either way, an appeal to "criminally prosecute" them for "official misconduct" has been launched. So warned a 5/2/17 complaint to the Sunshine Ordinance Task Force (SOTF), the District Attorney, and City officials who appoint said Commissioners. It came from "outraged" pro-housing activists Laura Clark, Director of YIMBY ("Yes, In My Back Yard") Action, Sonja Trauss, founder of SFBARF (Bay Area Renters Federation) and 5 associates. It was another oblique strike in a war against perceived barriers to housing development. Recall the guerilla tactics YIMBYs deployed in trying to take over the Sierra Club. This time, their anger was displaced onto a revitalized Ethics Commission that tackles corruption.

Johnson acknowledged a conflict. She resolved it by contortion, vowing to avoid housing policy decisions at SPUR while continuing to vote on housing policy matters as a Planning Commissioner. Although she had told Mayor Lee she wanted to resign once hired by SPUR.”

At the March 27 Ethics meeting, clean-government advocates with "Friends of Ethics" notified Ethics Commissioner Quentin Kopp of a potential conflict of interest. It involved Planning Commissioner Christine Johnson who had just been dubbed Director of SPUR's San Francisco chapter following a term on SPUR's Board of Directors. SPUR (SF Bay Area Planning and Urban Research Association) is a member-funded "non-partisan" think-tank that also engages in advocacy. Its income for 2016-17 was $7.1 million, of which 34% came from some 6,000 member-donors including corporations, developers, realtors, as well as trade unions and public institutions. Another 33% came from grants, mostly private. Noted for past "urban renewal" fiascos, SPUR promotes development that is suspected of benefiting its contributors, among others. Kopp included Johnson's alleged conflict among 10 suggestions he made to "supplement" Ethics' work on an Anti-Corruption Ordinance - and future meeting agendas.

Commission President Peter Keane

But the Johnson matter didn't get on the April 24 Ethics agenda. Instead, Friends of Ethics co-founder Larry Bush warned that in 3 days, the Planning Commission would review 2 competing Inclusionary Affordable Housing Ordinances that assigned different percentages of affordable units to new developments. One, crafted by Supervisors Kim and Peskin, proposed more low-income housing. The other from Supervisors Safai, Breed and Tang favored more middle-income housing. SPUR and the Mayor's Office supported the latter, as did developers and the Controller. Commissioner Johnson's potential conflict seemed like an immediate concern given the Planning vote scheduled on 4/27/17. Unknown then, Planning had voted twice before on this matter and its votes were advisory. As one of 4 mayoral appointees to the 7-member Planning Commission, Johnson's role was controversial. Not only was Johnson SPUR's salaried advocate and fundraiser, she had previously reversed her vote to tighten Airbnb regulations after a rebuke from the Mayor's Office.

Commissioner Quentin Kopp

So Ethics had to decide: address an imminent vote potentially tainted by a conflict of interests, or wait until the matter could be agendized. By then, Planning would have voted. The Brown Act and the Sunshine Ordinance require that government meeting agendas be publicly posted 72 hours beforehand to allow public participation. But both allow action on non-agendized items if all commissioners present deem immediate action necessary to avoid "serious injury to the public interest" and if the need for action arose after the agenda was posted. Commissioner Kopp moved to take action on Johnson's perceived conflict. Deputy City attorney (DCA) Andrew Shen, who is assigned to the Ethics Commission, cautioned against further discussion as the matter wasn't on the agenda, as did Ethics Director LeeAnn Pelham. Ethics Chair Peter Keane ruled that the matter was urgent, important and in order. A required roll-call vote on this decision wasn't taken but the commissioners proceeded in agreement.

What ensued was a one-hour open discussion punctuated by DCA Shen's defensive refusals to discuss Johnson's potential conflict. Larry Bush shared e-mails showing that the Mayor's staff had called upon DCA Shen to advise them and Johnson about, "having to recuse herself from items at the Planning Commission…that are impactful to the Administration." This Shen did not disclose. Nor would he share that he told Johnson she incurred no conflicts, citing "attorney-client privilege." He wouldn't reveal if his advice was written or verbal. He even declined to guide Ethics on the points of law related to conflicts of interest. Not once did he mention that the Brown Act allowed action on certain non-agendized matters. Awkwardly, Shen was caught in his own conflict of interests - serving several clients with differing views. Worse, Ethics was rejecting the "no-conflict" pass he had granted to Johnson. So he sought to stop the discussion, and suggested that one Commissioner send a personal letter to Johnson. Instead, supported by public comments, Ethics voted 4-0 to send a letter advising Planning Commissioner Johnson that her "dual roles may be incompatible" and to recuse herself from acting on "housing or other development projects."

At the 4/27/17 Planning Commission meeting, a fuming Commissioner Johnson called on DCA Jon Givner to address the issue. Givner acknowledged that his office had verbally advised Johnson that her employment at SPUR posed no conflict of interest - based on what Johnson said about her job duties rather than any "independent investigation." Givner defined conflicts of interest narrowly, based on whether Johnson or SPUR made money from her Planning decisions and whether SPUR lobbied the Planning Commission. But why would SPUR bother lobbying the Planning Commission when its own advocate already sat on it? And admittedly, Givner's assessment "did not pierce the veil" on influential SPUR donors. Capping Givner's presentation, Johnson stated she was "extremely dismayed" at receiving an Ethics warning without the opportunity to defend herself. Yet, the Ethics letter only urged recusal - not suspension or criminal prosecution - as did the YIMBY complaint against the Ethics Commissioners.

Johnson acknowledged a conflict. She resolved it by contortion, vowing to avoid housing policy decisions at SPUR while continuing to vote on housing policy matters as a Planning Commissioner. Although she had told Mayor Lee she wanted to resign once hired by SPUR, Lee asked her to stay until he appointed another commissioner – a stay lasting another 7 months. She walked out during public comments that overwhelmingly favored the Kim/Peskin proposal. However, she did support one amendment that favored low-income residents. Tensions dissipated once Supervisor Jane Kim arrived to announce that the dueling proposals would be melded into a "consensus" Ordinance. But the YIMBY grievance against Ethics proceeded.

On 9/6/17, before the full Sunshine Task Force, Ms. Clark and a handful of YIMBY supporters faced off against Commissioners Keane and Kopp and their allies. Intriguingly, the YIMBYs' fervor for sunshine laws surpassed that of long-committed sunshine advocates like Bruce Brugmann, Rick Knee and Bob Planthold who backed the Ethics Commission. The all-white YIMBYs injected victimology and identity politics into their main argument, namely; it's discriminatory to challenge Johnson because other Planning Commissioners harbor conflicts of interest. Clark lamented that "I had my character thrown under the bus." Previously, she had argued it was unfair to "drag someone (Johnson) through the mud." She labeled Ethics "a rogue agency…filled with politically-motivated individuals who drop the hammer on whoever they deem a political opponent." Housing Action Coalition CEO Todd David declared, "It's about old white men not liking Christine Johnson." Dismissing conflict of interest concerns, YIMBYs condemned Ethics for "a political witch-hunt for a minority female woman," "a political vendetta", "selective prosecution", "abuse of power", and "new levels of hypocrisy." They also maintained that the Ethics letter didn't address any emergency because Ethics had received tips about Johnson's conflict weeks before and she had previously voted on inclusionary housing. It almost worked. A motion to find that Ethics had violated the Sunshine Ordinance died on a 5 to 3 vote – one short of the 6-vote threshold needed to pass. Commissioner Johnson wasn't there to back her supporters. Neither was DCA Shen.

In sum, Ethics made a good-faith effort to fulfill its duty and met the immediacy exemption allowed by the Brown Act. YIMBYs desiring fairness can report to Ethics the alleged conflicts enveloping other Planning Commissioners. And Ethics should replace its conflict-bound City attorney with independent counsel.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing. Both are local San Francisco residents. Contact Derek

October 2017

Safe Injection Sites: Neither Drug Dens nor Roads to Recovery

by Dr. Derek Kerr and Dr. Maria Rivero

Tents, trash, feces, disorder and despair. Shooting up, nodding out or freaking out on sidewalks strewn with discarded needles. This April alone, City crews swept 17,511 syringes from City streets and encampments – even around Civic Center. This is the public face of the 22,500 people who inject drugs in San Francisco where 69% are homeless or marginally housed. Invisibly, they harbor 20% of the City's HIV cases and 70% carry Hepatitis-C per the Department of Public Health (DPH). In 2015, 179 people died of drug overdoses, about 100 by injection, primarily heroin and methamphetamine, mostly hidden in Tenderloin and South of Market hotels. Drugs drive thousands of ambulance runs and hospital visits for infections, overdoses, falls and other complications yearly, not to mention crimes and arrests.

Drug addiction is viewed by experts as an illness - substance use disorder. To tackle its public and personal costs, the Board of Supervisors passed Resolution 123-17 in April. It urged the DPH to convene a 15-member Safe Injection Services Task Force to assess setting up sites where people can legally inject their own drugs using sterile equipment under medical supervision, and connect with health, drug treatment and social services. This month, after 3 public meetings, the Task Force will send recommendations to the Mayor. In June 2016, Mayor Lee had rejected a proposed injection site at a homeless Navigation Center, declaring his "vigorous disagreement over allowing people to inject heroin and meth, to literally destroy their bodies and their minds, in a City-funded shelter." The tide shifted once DPH Director Barbara Garcia endorsed injection facilities in December.

Safe Injection Sites (SIS) originated in Switzerland in 1983 then spread to 100 cities in 10 countries including Australia, Canada, Denmark, Germany, and Spain. Two of these incorporated scientific evaluation protocols; the Medically Supervised Injecting Centre set up in Sydney Australia in 2001, and the Insite program in Vancouver Canada established in 2003. Their research shows that SISs attract hard-to-reach, high-risk drug users, notably the homeless and long-time addicts, many with no prior drug treatment experience. SISs promote safer injection procedures, and likely reduce overdose deaths and infections as well as public injecting and litter. They enhance access to drug treatment, social and health services without increasing local drug use, trafficking or crime. For these reasons, the Supreme Court of Canada blocked government efforts to shut down Insite in 2011. Despite federal disapproval in the US, health officials in Seattle have authorized 2 SISs and San Francisco aims to follow.

Here, SISs would extend the DPH's Harm Reduction approach to drug addiction; distributing 2 to 3 million sterile syringes annually, providing methadone or buprenorphine treatment for heroin addiction, and dispensing naloxone (Narcan) to reverse opioid overdoses. Essentially, the DPH partners with habitual users in a non-judgmental way to minimize the harms associated with illicit drug use – without requiring abstinence. By reducing the stigma and isolation of addiction, therapeutic opportunities emerge. However, DPH surveys overstate the acceptability of SISs by omitting the registration requirements and house-rules that most street users shun. An assumption-laden cost-benefit analysis for a 13-booth SIS predicts operating costs of $2.6 million, but net savings of $3.5 million - largely by preventing 415 days of hospital care, 19 cases of hepatitis, 3 HIV infections, and by routing 110 addicts into drug treatment annually. As for overdose deaths, one would be prevented – every 4 years.

Critics who analyzed the data from the Sydney and Vancouver SISs challenged their effectiveness. When surveyed, just 31% of Vancouver public injectors said they would use SISs because registration is required and neither assisted injections nor drug sharing are allowed. Acceptability dropped to 20% with police presence. Clients who attend these SISs, do so for less than 20% of their injections on average. Canada's Expert Advisory Committee determined that Insite's thousands of visits represented barely 5% of overall community injections. Such low utilization rates limit potential and sometimes elusive benefits. The Sydney SIS could not demonstrate reduced rates of needle-sharing, skin infections, hepatitis or HIV. Although Vancouver's Insite reported improvements in all, the Expert Advisory Committee saw no direct evidence. While neither program reported overdose deaths in-house, their overdose rates exceeded those reported in the community. Apparently, some SIS clients feel emboldened to experiment with higher doses and drug cocktails while safely supervised.

SIS referrals to drug treatment programs are widely touted, but only 14% of Sydney clients were referred. The vast majority did not attend until recently, with added funding and follow-up. In Vancouver, just 18% of clients accepted drug treatment. In San Francisco, merely 14% of drug users surveyed wanted drug treatment from an SIS while 45% wanted food and showers. Denial of disability is a symptom of addiction, but some taxpayers may balk at these returns on investments. However, both the Vancouver and Sydney programs reported cost savings. A minority of local businesses and residents complained about loitering and drug dealing. While no increase in local crimes were detected, cops had boosted patrols around both SISs – a hidden cost.

SIS critics complain that "partisan sympathizers" cherry-pick data to highlight successes. On 7/21/17, the one-sided diversity of DPH's Task Force was revealed when its members were ruffled into admitting that they already favored SISs. On 8/10/17 the Task Force proffered 6 City SISs rather than a pilot program. Other advocates want "geographical equity" whereby every City District would do its fair share. Unaddressed are drug users' low participation levels due to acceptability barriers and the allure of the street scene. Ideological opponents fear that SISs enable destructive behaviors. They call for more robust treatment programs as well as pre-arrest diversions and drug courts that mandate treatment.

The SIS movement is stymied by federal and state Controlled Substance Laws that prohibit the possession of illegal drugs and paraphernalia. Even building owners and operators may be held liable. This May, Attorney General Jeff Sessions directed federal prosecutors to seek "the most serious, readily provable" penalties for all drug offenses. One work-around is California Assembly Bill 186 for a "Safe Drug Consumption Program." It would legalize drug use within approved injection sites. The Bill passed the Assembly 41 to 33 and awaits a Senate vote. Opposing the bill are the Police Chiefs Association, District Attorneys Association, Sheriffs' Association and Narcotic Officers' Association. They worry about conflicts with federal laws, congregating drug-related criminality, and "government-sanctioned drug dens" that don't require treatment. Nonetheless, SISs offer hope amidst an Opioid Crisis with fentanyl-spiked overdoses despite the fierce policing and mass incarceration of the War on Drugs.

Like other municipal efforts to combat national plagues, SISs may relieve a fraction of the problem without improving it overall. Since modest results fit the Harm Reduction paradigm, the Task Force will surely recommend SISs. But DPH enthusiasm isn't enough. What's really needed may emerge from the US Opioid Commission report. But don't expect federal SIS grants or relief from the traumas and social despair that drive addiction. The DPH budget has risen to $2.2 billion. Homeless services cost $246 million. Pharmaceutical companies relish 3 to 15-fold price increases for Narcan. A City SIS should be a pilot project, with a scientific evaluation process, baseline data, pre-set criteria and measurable outcomes to gauge results and their costs.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda where they repeatedly exposed wrongdoing by the Dept of Public Health. Contact: watchdogs@westsideobserver.com

September 2017

FBI Probe Plunged DPH into Turmoil, Intrigue

by Dr. Derek Kerr & Dr. Maria Rivero

The March 2017 Westside Observer reported on the FBI probe of a pay-to-work scheme involving janitors in the Department of Public Health (DPH). Payments had allegedly been solicited in exchange for jobs, exam questions, promotions and shift assignments. Since then, new sources and documents revealed that the FBI investigation dug longer and deeper than initially reported, miring the DPH in recriminations and intrigues.

Starting in 2011, DPH janitors were questioned by the FBI and City Attorneys about payments for jobs and the hiring of janitors with unverified qualifications from China. Who notified the FBI is unclear. According to confidential DPH sources, a janitor who reportedly paid $5,000 for a position that didn't materialize demanded a refund then complained after receiving just $4,000. Another janitor allegedly paid $10,000 for a position. No legal action ensued as the victims declined to testify. However, the DPH introduced multiple-choice exams for hiring janitors. The FBI kept watching for potential human trafficking.

Hostile Work Environment: In 2011-12, the DPH launched 3 investigations targeting its General Services manager, Willie Crawford, who oversaw janitorial and other facility services. Several of his subordinates had complained about his "harassment", resulting in counseling and reduced responsibilities. Crawford, a 35-year DPH employee who is African American felt that underperforming employees had issued "false allegations" resulting in a "hostile work environment" that reflected racial discrimination. His 2011 complaint to the DPH Equal Employment Opportunity office was rebuffed. So, in July 2012 he contacted the California Department of Fair Employment and Housing (DFEH), adding retaliation to his discrimination claim.

To calm tensions, Crawford was assigned new supervisors. One was Ron Weigelt, hired as the new DPH Human Resources chief in May 2013. Crawford says his mistreatment continued - including the deletion of 3 months of his e-mails from DPH servers. So he filed a retaliation claim with the City's Civil Service Commission. It was denied. However, the State DFEH granted permission to sue. In March 2015, he filed suit in federal court.

DPH sources say that in 2015, Crawford was being surveilled by several subordinates who were to report irregularities to Weigelt. Records show that in August 2015, Crawford petitioned to fire 2 clerks for "not following procedures" - allegedly disclosing contents of confidential documents and insubordination. Instead, Weigelt reassigned them to his department. Crawford accused Weigelt of siding with employees he deemed unfit, undermining his authority and rendering him "invisible" as a manager. One of the clerks reported Crawford to the Controller's Whistleblower Program for threatening behavior.

Investigative Zeal: Remarkably, the Whistleblower Program and the City Attorney pounced on the case, interviewing 15 witnesses from August to December 2015. Crawford's deputy and "right hand woman", Amanda He, turned against him and sought reassignment. In October 2015, Crawford was placed on Administrative Leave for "alleged misconduct". His replacement, a Payroll manager with no janitorial experience, was David Palma. Palma lobbied to bring back Amanda He as his deputy. That move was reportedly opposed by DPH Director Barbara Garcia and some janitorial staff who longed for change. But Weigelt, who protected informants, supported it and prevailed. Palma and He then purged half a dozen employees and supervisors, including witnesses to ongoing intrigues, thereby provoking more outcries over retaliation and discrimination.

The City's investigation stated that Crawford had "accepted money from a subordinate", "misused City resources" and "threatened bodily harm". Labeled an "administrative retaliation ploy" by Crawford, it resulted in an "Intent to Dismiss" notice on 12/18/15. Crawford had been taken aback by a grilling on his personal finances, bank accounts, real estate and even his Chinese-American wife's business. Moreover, he had been ordered to undergo interrogation without his attorney present, and to attend a disciplinary hearing while on Medical Leave – a breach of procedures. Further, the City Attorney was investigating Crawford - while defending the DPH against Crawford's retaliation lawsuit. Crawford's attorney protested "a biased investigation designed to terminate him" and successfully moved to disqualify the City Attorney from the case. That's why Louise Renne's Public Law Group began defending the DPH in January 2016, thereby collecting $187,158.

FBI Behind the Scene: The City's investigation wasn't autonomous. By November 2015, the FBI had submitted a list of janitors it wanted to interview. FBI agents also interviewed DPH Human Resources Director Ron Weigelt and City HR Director Micki Callahan. The DPH scrambled to review complaints janitors had filed since 2011. In December 2015, Weigelt crafted a memo encouraging janitors to cooperate with the FBI and promising immunity for truthful information. This memo sparked contention between Weigelt and cagier City Attorneys who worried that it would tip off managers suspected in the pay-to-work scheme. The FBI asked to search Crawford's office but City Attorneys demanded a warrant. The FBI argued that it simply needed DPH's permission since the office was DPH property. Still, City Attorneys held FBI agents at arm's length. The FBI did not force the issue, but agents grumbled openly about the lack of cooperation.

Instead of an FBI search, the DPH's Weigelt directed a search of Crawford's office and computer. Meanwhile, the City Attorney's investigation reportedly bypassed the As Needed janitors who were more likely to encounter pay-to-work pressures. Adding to the impression that dirt was being hidden, was a series of break-ins, intrusions and thefts from DPH executive offices at 101 Grove Street. The DPH reportedly stalled on activating or installing security cameras. Key documents, including promissory notes allegedly showing that janitors had signed over portions of their wages, vanished. Months of Crawford's emails also disappeared.

Concurrent investigations by the FBI, the Whistleblower Program, the City Attorney, and the DPH fomented damage-control, paranoia and intrigue. Coworkers suspected each other of being FBI informants. The DPH General Services Division became a hive of spies, prowlers, document-shredders, and whistleblowers.

Litigation Outcome: In pre-trial motions, Judge Claudia Wilkens deemed the City's investigation legitimate, striking Crawford's racial discrimination and wrongful termination claims. However, she allowed his claims of retaliation and violation of the Family Medical Leave Act. In mediation, a settlement was reached and approved in February 2017: Crawford resigned in exchange for $100,281 plus retirement benefits. The City agreed to forego $37,000 in legal fees and pay mediation expenses. Astoundingly, the FBI was never mentioned in extensive court filings despite its omnipresence through November 2016. That omission allowed the settlement to bury DPH payola skeletons while upraising the City's anti-corruption efforts.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: watchdogs@westsideobserver.com

Laguna Honda to Offer Medical Aid-In-Dying

by Dr. Derek Kerr & Dr. Maria Rivero

On May 9, 2017, Laguna Honda Hospital (LHH) pivoted to offering terminally ill patients the option of taking a lethal drug cocktail on its premises. This Medical Aid-In-Dying (MAID) policy is based on the June 2016 California End of Life Option Act and a related Department of Public Health (DPH) policy approved this February. Since the California Act prohibits MAID in a "public place" – and public hospitals are public places - it was assumed that patients would self-administer the prescribed drugs at home. For patients without homes or caregivers, the DPH initially planned to "facilitate placement of patients in an appropriate setting." But there are few community settings where MAID can be safely conducted - or accepted. To afford patients the right to choose the timing, place and manner of their own deaths, LHH devised an on-site policy. Provided they need skilled nursing services, patients may be admitted to LHH for MAID.

Since Oregon's 1997 Death with Dignity Act, Washington, Montana, Vermont, California, and Colorado, have adopted similar laws. Oregon data shows that 1,749 terminally-ill patients were prescribed lethal drugs resulting in 1,127 deaths. In other words, one-third decided not to use the drugs. Last year, just 0.37% of all Oregon deaths resulted from MAID. Overwhelmingly, they were over 65, white, college-educated cancer patients with 90% enrolled in Hospice. Only 5% took MAID in long-term care facilities like LHH. The prime reasons for seeking aid-in-dying were existential; loss of control, unbearable quality of life, and loss of dignity. In 19 years, no complaints of MAID abuse have been reported. The MAID advocacy group Compassion and Choices describes the experience in a video for patients

To qualify for MAID, patients must be California residents, at least 18 years old, and terminally ill with less than 6 months to live. They must have the capacity to make informed medical decisions – and be able to self-administer the drug. Because patients in Skilled Nursing Facilities are vulnerable to coercion and despair, the LHH protocol ensures that MAID requests are voluntary and rational. Patients must personally request MAID from their physician. No one can do so on their behalf. They must understand and communicate the nature and consequences of MAID. The physician assesses the patient's eligibility and offers alternate options like Hospice Care, palliative sedation, ending life-prolonging treatment, or voluntarily refusing food and drink.

After waiting 15 days, patients are referred to a consulting physician to verify their eligibility for MAID. If approved, patients then submit a written attestation, witnessed by two persons, affirming that the decision is voluntary and without undue influence. Only one witness can be a relative or a hospital employee. Involved doctors cannot be witnesses. For patients with limited English proficiency, a certified DPH translator must explain each step. Disagreements about whether MAID is appropriate or voluntary require a referral to the LHH Ethics Committee. Concerns about a patient's mental state or judgment require evaluation and clearance by a Psychiatrist or Psychologist. The review takes 3 weeks at minimum, and likely twice as long. In Oregon, the median is 7 weeks. The decision can be rescinded at any time.

Days after the written attestation, a prescription is made out for 10 grams (100 capsules) of the sedative Seconal, along with pills to prevent vomiting. The medications are provided 48 hours before the planned ingestion. The patient must self-administer the drugs and is reminded that it's OK not to take them. To mask the bitterness, the capsules are emptied into half a cup of juice or apple sauce then swallowed within 2 minutes. In Oregon, half of the patients passed out after 5 minutes but a few stayed awake for an hour. Most died within an hour, though some lingered for 1 to 4 days. The cocktail can be modified to speed up the effect. A physician fills out the death certificate listing the underlying terminal illness as the cause of death. By law, MAID is not suicide and does not affect insurance coverage.

All MAID prescriptions and related deaths are reviewed by the State Department of Justice and Department of Public Health (CDPH), respectively. Annually, the CDPH will publicly report the number of prescriptions and deaths with demographic data, keeping patient identities confidential.

MAID is controversial and emotive. Catholic doctrine opposes it, as does the Hippocratic Oath and the American Medical Association though the California Medical Association takes a "neutral" stance. Some disability rights groups believe that MAID reflects a fear of disability, thereby devaluing the lives of disabled persons. They warn that poor quality of life may be due to poor quality of care. Traditionally, Hospice care neither prolonged nor hastened the dying process. Accordingly, the Act allows health care providers and hospitals to opt out. Catholic hospitals like St. Mary's and St. Francis prohibit MAID. So does the VA hospital system. The Vitas Hospice chain and Hospice by the Bay will not prescribe MAID.

Commendably, LHH conducted a staff survey before introducing its MAID policy. Only 5 doctors in the pool of 24 ward physicians agreed to participate. Support seems spotty among nurses, most of whom are Filipino and Catholic. LHH did not disclose how many staff refused to participate. Or how many declined to be surveyed, resulting in a "low" response rate. LHH acknowledged "challenges that needed to be addressed for conscientious objectors" without explanation. Staff who oppose MAID on ethical, cultural or religious grounds are free to opt out. Accordingly, MAID will be offered Monday through Friday during the daytime when enough supportive staff are available. Patients will be afforded a private room on the Palliative Care Service which is accustomed to caring for the dying and their families.

LHH patients, who are largely poor and non-white, were not surveyed. Neither were DPH patients. So there's no data on the demand for MAID. A UC Berkeley poll showed that 76% of California voters support MAID, dropping to 52% among African-Americans. No one has polled terminally ill patients. Offering MAID without pushing it or alarming patients will be a challenge.

Apart from those who request MAID, who benefits? The DPH Flow Project rushes non-paying SFGH patients into LHH to relieve crowding and cut costs. In October 2012, DPH Director Barbara Garcia listed "freeing up beds at LHH" as a priority. In a May 2014 "Patient Flow" presentation, LHH reaffirmed its commitment to "increasing bed utilization and turnover" by increasing discharges, reducing lengths of stay and favoring short-term admissions. However, discharges are hampered by the lack of nursing homes, residential care beds and supportive housing in the City. MAID could open beds. Then there's Valeant, the manufacturer of Seconal that doubledthe drug's price one month after the California bill was introduced. MediCal will cover the $4,000 cost. Lastly, LHH officials may gain recognition by presenting the MAID program in professional articles and conferences. To protect patient interests from potential institutional and professional ones, LHH should include the California Long-Term Care Ombudsman in the process.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

June 2017

A Public Bank for San Francisco

by Dr. Derek Kerr and Dr. Maria Rivero

During the early 1900s, North Dakota’s economy was based on agriculture, specifically wheat. Frequent drought and harsh winters didn’t make it easy to earn a living. The arduous growing season was further complicated by grain dealers outside the state who suppressed grain prices, farm suppliers who increased their prices, and banks in Minneapolis and Chicago which raised the interest rates on farm loans, sometimes up to 12%. North Dakotans were frustrated and attempts to legislate fairer business practices failed. A.C. Townley, a politician who was fired from the Socialist Party, organized the Non-Partisan League with the intent of creating a farm organization that protected the social and economic position of the farmer. The Non-Partisan League gained control of the Governor’s office, majority control of the House of Representatives and one-third of the seats in the Senate in 1918. Their platform included state ownership and control of marketing and credit agencies. In 1919, the state legislature established Bank of North Dakota (BND) and the North Dakota Mill and Elevator Association. BND opened July 28, 1919 with $2 million of capital.

Where does money come from? It’s created from nothing - by banks. Because of fractional reserve banking, banks can lend $10 for every dollar they hold. By charging interest on this fabricated money, banks extract much more than they lend. Since loans are marked as deposits, they can also be sold for cash. Meanwhile, governments collect taxes and deposit them in big banks. By serving as intermediaries, banks profit from investing this money or lending it. Instead of fostering community development, most bank loans benefit other financial institutions, insurance and real estate companies, hedge funds and corporate raiders. Cuts in federal housing and urban development grants have locked cities into the private banking system. Averse to raising taxes or cutting budgets, cities obtain private credit via municipal bonds or public-private deals that reward investors and can double the costs of public projects. Private banks monopolize a wealth-transfer mechanism that enriches their executives and shareholders at taxpayer expense.

The deregulation-enabled and fraud-driven banking crash of 2008, the $700 billion public bail-out, and Federal Reserve’s multi-trillion dollar rescue measures converted public dollars into private profits. Then emerged a sordid history of predatory loans, falsified mortgages, improper foreclosures, concealed liabilities and phony AAA securities that banks pitched, then covertly bet against. After profiteering from deception, big banks have grown larger, less accountable and at greater risk of collapse due to massive speculative trading. Trillions of dollars in risky but lucrative derivative deals circulate in proprietary Dark Pools. Although the 2010 Dodd-Frank bill prohibited bail-outs for bad derivative trades, insolvency can now trigger “bail-ins” whereby banks confiscate depositor assets. Meanwhile, an uninterrupted stream of public looting scandals has come to light, notably, rigging the London Interbank Offered Rate (LIBOR), the world’s benchmark interest rate, as well as currency exchange rates and municipal debt servicing auctions. These and a host of other violations yielded billions in pilfered profits despite billions in fines and settlements.

One antidote for these abuses is to establish public banks. Their purpose is public interest – not private profits. Run as public utilities under public oversight, they take tax receipts deposited by governments. They provide credit for public projects and local businesses and return profits to General Funds. Run by salaried civil servants, there are no commissions for boosting loans or pursuing speculation. This alternate paradigm works for the Bank of North Dakota (BND), the nation’s only public bank. Founded in 1919 to support farmers who couldn’t get loans from commercial banks, it now finances infrastructure projects, and provides low-interest loans for students, farmers and public services. BND partners with local banks that lend to homeowners and small businesses. Over the past decade, it pumped some $300 million back into State coffers – one reason North Dakota was uniquely solvent during the financial crisis. In 2015, the BND’s Infrastructure Loan Fund offered 30-year loans - at 2% interest. Globally, 40% of banks are publicly-owned. Among US cities considering public banks are Oakland, Santa Fe, Philadelphia and Seattle.

San Francisco already has a template for public banking. In 2009, then-Supervisor John Avalos collaborated with Sociologist Karl Beitel, who went on to publish a monograph; “Municipal Banking: An Overview.” It showed how a public bank could recapture $68 million annually by purchasing the City’s short-term bonds. Pressed by soaring foreclosures and housing costs that displaced City residents, as well as the Occupy Wall Street and Move Your Money movements, in 2011 Avalos asked the City’s Budget and Legislative Analyst to research a City-owned bank. Harry Rose’s September 2011 report identified a major barrier: State law. Government Code section 27003 states: “a county shall not, in any manner, give or loan its credit to or in aid of any person or corporation.” However, a 6/21/13 City Attorney opinion concluded that as a charter city, San Francisco could establish its own bank. Ominously, State bills to create public banks (AB750 in 2011 and AB2500 in 2012) were vetoed or buried after opposition from the California Bankers Association, and the State Treasurer.

City Treasurer Jose Cisneros was guarded while testifying before the City Operations and Neighborhood Services Committee on 10/24/11. He admitted that the City deposited its funds with Bank of America, Wells Fargo, and Union Bank at a cost of $2.7 million/year. He emphasized his legal obligation to prioritize security, liquidity, and return, in that order, for City investments. There was no assessment of the security of City funds placed with Bank of America that co-mingles its $1 trillion in deposits with $70 trillion in derivatives. When such banks fail, the derivative claimants have “super-priority”, meaning that the City would get nothing. Cisneros vowed to adjust banking contracts to promote social responsibility.

In 2013, Cisneros asked UC Berkeley’s Goldman School of Public Policy to “recommend policy alternatives” to increase access to credit for home-buyers, small businesses, and non-profits. However, the 2014 analysis itself, titled Promoting Access to Credit, shows that he requested recommendations for “existing financial institutions in the City” – not a public bank. The analysis found that the City’s policy of “attracting firms, job creation and providing incentives for the tech sector…inevitably leads…” to rising commercial and housing costs.

Cisneros’ current Investment Policy keeps “social responsibility” subordinate to security, liquidity, and returns. However, his “social responsibility screen” steers City investments away from firearms producers, major polluters, and predatory lenders. A foe of predatory banking, Cisneros uses public bank-like tools to boost community financing. In 2008 he advanced the Bank On SF program that partners with credit unions and “responsible banks” to provide low-income residents with low-fee accounts. Last year he suspended Wells Fargo from the program for opening 2 million sham accounts nationwide. His Kindergarten to College program used City and philanthropic funds to open $100 savings accounts for over 18,000 kids. This March, he was pushed by the Board of Supervisors to divest from banks that sponsor the Dakota Access Pipeline. Why not open a public bank?

E-mails obtained from the City Treasurer’s Office since 2011 reveal wariness, skepticism, and defensiveness toward public banking - and its proponents. Inquiries from Avalos and associates were cautiously tracked by the Treasurer’s Legal Section. Correspondence between City and regional treasury officials expressed these concerns;

1. Conflicts of Interest: Can bank governance be insulated from politics? Will politics influence what projects get loans, or how bad debts are collected?
2. Complexity & Cost: Can the City provide the necessary expertise and start-up capital?
3. Risk-Management: Would prioritizing economic development loosen loan standards and put public funds at risk?

The Public Banking Institute has answers to these questions. And on 4/11/17 Supervisor Sandra Lee Fewer directed the Budget Analyst to re-assess the feasibility of a city-owned bank. Treasurer Cisneros will also have an opportunity to re-assess his stance. With the ongoing risks and predations of private banks, threats of federal cuts to sanctuary cities, and revenue losses from denying bank services to the cannabis industry, a public banking option is needed.

Dr. Derek Kerr and Dr. Maria Rivero and were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: watchdogs@westsideobserver.com

May 2017

Sewergate: Costly Conspiracies of Expediency

by Dr. Derek Kerr & Dr. Maria Rivero

On March 17, 2017 an epic whistleblower retaliation trial rendered a $2 million judgment against City Attorney Dennis Herrera. His former Chief Trial Deputy, Joanne Hoeper, claimed she was fired for exposing a sewer repair scam involving the City Attorney’s Claims Bureau. Herrera maintained he had long-planned to fire her for “poor judgment”. After 3 weeks of testimony, a Superior Court jury unanimously spurned Herrera’s oath that Hoeper’s sewer probe “had nothing to do with my decision to replace her.”

Prompted by an FBI tip about fraudulent claims, Hoeper found that plumbing contractors drummed up business by checking City records to locate City trees. They drove around to video sewer traps without informing property owners. Then they knocked on doors, warning of tree-root problems needing immediate attention - even when residents weren’t experiencing sewer problems. After assuring homeowners that the City would pay, they filled out the paperwork to file a claim. Within days, the Claims Bureau would reimburse the homeowners - or pay the plumbers directly, though contractors lack legal standing to file such claims. While taking steps to block phony claims, the Claims Bureau viewed the hustling as “unethical but not illegal.” One staffer admitted, “It’s nearly impossible to prove collusion despite it being glaringly obvious.”

Sewer and tree-related claims were soaring. In 2002, 202 claims totaled $1.1 million. By 2010 there were 522, costing $4.6 million. The 10-year total was $24 million, including legitimate types of sewer and tree maintenance. Other cities didn’t pay for sewers infiltrated by city-owned trees because roots rarely break sewers. They infiltrate existing cracks. And most can be cleared by root cutting for a few hundred dollars rather than spending thousands to dig up and replace entire lines. That’s why Oakland, with a comparable number of city trees, paid $20,000 annually to replace sewers. Meanwhile, one SF contractor collected $600,000 over 2 years solely from City sewer claims. When Oakland did replace sewers, it paid 50% to account for depreciation. SF paid full freight for brand new lines. Hoeper surmised that dubious payouts had cost taxpayers $10 million.

Most of the claims were for private sewer lines that run from homes to the sidewalk. By replacing decrepit private sewers, the City was providing capital improvements for property owners and big paydays for a handful of plumbing contractors. According to the Government Claims Act, cities are only liable for public sewers that run under streets. And City codes require the Department of Public Works (DPW) to fix street sewers through its contracting process. However, the Claims Bureau paid

for some street sewer jobs. These irregularities were tolerated as “a conspiracy of expediency”, i.e., work-arounds to expedite repairs. Hoeper saw false claims and suspected corruption.

Tree roots can cause thousands in damage to sewer lines. It’s only natural that roots from trees grow toward sewer lines, a bountiful source of the water, nutrients, and oxygen that roots crave. But the expensive process also attracts unscrupulous swindlers as Drs. Rivero and Kerr continue to report.

Herrera supported Hoeper’s investigation - until her findings triggered blow-back. Matthew Rothschild, a politically-connected Herrera ally who heads the Claims Bureau, was rattled. He told Hoeper; “You handled this all wrong…You’ll be sorry.” Also upset were PUC Manager Ed Harrington and DPW Director Mohammed Nuru. They blamed the Claims Bureau for mismanagement. Wagon-circling ensued - another conspiracy of expediency. Herrera summoned his Chief Deputy Attorney, Therese Stewart, to defuse tensions and wrap up Hoeper’s investigation. Stewart counseled Rothschild and his staff, without notifying Hoeper’s investigative team of her back-channel communications. She fended off Harrington’s accusations, declaring; “Everybody has a hand in this…no need for finger-pointing.” In June 2012, Nuru and Harrington barred the “pre-approval” of cvlaims by the Claims Bureau without their okay.

Troubled by Hoeper’s ongoing search for “something nefarious,” Stewart demanded a “2-page summary” – and not “a blow by blow summary” of Hoeper’s findings. Instead, Hoeper delivered a 27-page draft report on 7/18/12 recommending a “top to bottom” audit of the Claims Bureau. One week later, Herrera told Hoeper to retire - or transfer to the DA’s Office for 18 months, then be released with full retirement benefits. It was an expulsion dressed as a soft landing, removing a threat rather than demoting an under-performer. Plus, Herrera’s timing was daft. Interestingly, Rothschild, a target of the sewer investigation, knew of Hoeper’s sacking a week before it was announced. Hoping that Herrera would reconsider, Hoeper accepted the transfer and a $120,000 severance but rejected a no-sue clause. After her release from the DA’s Office, she filed a wrongful termination claim in June 2014.

Attorney John Keker

Herrera testified that he had “lost confidence” in Hoeper and resolved to replace her in “early 2010.” He just couldn’t find the right person. He described a desultory recruitment effort that stretched over 2.5 years and stalled during his run for Mayor. He couldn’t prove he interviewed candidates because he didn’t keep notes of meetings and didn’t ask any of them to testify. More evidence vanished due to furtive memory lapses and his reliance on private e-mail to conduct City business. Herrera has no government e-mail account. He had no documentation or recollections of having directly admonished Hoeper’s performance. He never told Hoeper her career was on the chopping block. Why? He wanted to “find her replacement first,” otherwise her removal would be too “disruptive”. Yet, he abruptly fired her one month before installing her surprised replacement, Cheryl Adams. Subsequently, under Therese Stewart’s supervision, the vexing sewer investigation went dormant.

Herrera’s attorney, John Keker, tried to portray Hoeper as a problem employee – a loser. He scorned the trauma of her termination, arguing that she wasn’t “too emotionally devastated” to take vacations or share her story with media outlets. He exhorted; “Press contact is not distress, it’s a sign of wanting to win.” As if the truly afflicted shun public attention. Keker asked why she accepted a transfer to the DA. Answer: “I needed a job.” Why didn’t she sue upon her transfer? “I was unsure if I wanted to do it.” Why did she finally decide to sue? “Because it would reflect badly on the City Attorney’s Office if I didn’t and it came out some other way.”

Therese Stewart, now a judge, testified: “There was always some friction” between Herrera and Hoeper for “not doing a good enough job,” underestimating liability, withholding information, scrambling from “crisis to crisis,” “over-litigating” rather than settling – and making a paralegal cry. She cited key examples of said flaws from 2005-2007 – years before Herrera decided to fire Hoeper. They wobbled like pretexts under cross-examination by Therese Cannata and Mark Fickes, and were refuted by several witnesses. Something more than Hoeper’s temperament caused Stewart to worry about “over-investigating” the sewer deals. As to why it took 2.5 years to recruit Cheryl Adams to replace Hoeper, Stewart glibbed, “no one thought of her” – even though Adams had sought the job while serving on the Trial Team.

Ironically, Herrera manifested the flaws he attributed to Hoeper, i.e., bungling a crisis, demonizing an adversary, withholding information, and running up costs by over-litigating. Records show that Hoeper had offered to settle for $1,895,000 while Herrera countered with $355,000. Now, taxpayers face bills surpassing $3 million for Herrera’s attorneys, plus $2 million for Jo Hoeper and around $2.5 million for her attorneys.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: watchdogs@westsideobserver.com.

April 2017

FBI Probe of DPH Bribery Scheme

by Drs. Derek Kerr and Maria Rivero

Recall when the FBI exposed "pay to play" schemes involving State Senator Leland Yee, Human Rights Commissioner Nazly Mohajer and staffer Zula Jones, as well as political consultant and former School Board president Keith Jackson? Less well known is the FBI probe of "pay to work" claims within the Department of Public Health (DPH).

Ron Weigelt, DPH Human Resources Director

In December 2015, DPH janitors, who are called porters, received a memo stating; "The Federal Bureau of Investigation (FBI) is investigating allegations that a DPH employee requested payments from Porters (or applicants to be a Porter) in exchange for jobs, promotions, or assignments." It came from DPH's Human Resources boss Ron Weigelt. Written in both Chinese and English, it explained, "if you give truthful information to the FBI about these allegations, DPH will not use that information to seek discipline against you." Immigrant porters are more vulnerable to workplace coercion due to their limited English proficiency and knowledge of laws. Some complained about bribery, extortion and a covert quid pro quo culture, according to DPH sources. But the mostly Chinese-speaking porters weren't reassured by Weigelt's promised immunity from reprisals. None were willing to testify and the FBI probe collapsed.

Janitors maintain safe, clean, functional environments for every City department. Those working in health facilities are called porters. Those working in non-clinical departments are called custodians. Paying $23.70/hour or $49,270/year, these entry-level jobs attract immigrants and minorities with basic manual and language skills. The City now offers a "Pathways to Entry Level Positions" training to help candidates with applications, exam preparation and job readiness. Last year, 959 janitors worked for the City. Meanwhile, there were 812 applicants for a small number of openings. There's plenty of competition.

Applicants must have 6 months experience in commercial janitorial work, or complete a certified Custodial Training Program. To get hired, they must pass a 2 hour test with 75 multiple-choice questions. The next hurdle is getting a permanent Civil Service position with benefits, rather than being hired provisionally or "as needed". Then there's competition for job locations, shifts, and promotions. Each of these decision points can be tainted by favors, bribes, kickbacks and extortion. Current and former City employees - who requested anonymity for fear of retaliation, told the WSO that pay to work schemes exist in many departments but mostly the DPH – the City's largest with some 7,370 positions. Allegedly, sums up to $5,000 or expensive gifts can yield access to exam questions, preferred shifts and locations, or promotions.

For some, these are good deals. Others, who earn their jobs and assignments, resent the corruption and safety risks when less-qualified workers can buy a job. Pervasive corruption can be subtle when bribes and favors are expected rather than demanded. Some who refused to pay tribute were reportedly bullied or given negative performance appraisals or denied vacation dates and desired assignments. Such wily retaliation is hard to prove. Rather than complaining to managers, several janitors confided with a non-profit agency serving immigrants. Fearful, none were willing to go on record. That reticence stymied the FBI probe, as well as a City Attorney investigation.

None of this came to light until 8/15/16 when two City employees told the Civil Service Commission about the FBI investigation. At the very end of the meeting, Department of Human Resources (DHR) Director Micki Callahan admitted that the FBI interviewed "some people at the DPH" and that a City Attorney investigation "led to the termination of a DPH employee on similar claims". The Whistleblower Program also looked into the bribery complaints and according to Callahan; "their assessment was that these were historical claims; there wasn't anything current."

At the October 3 Commission meeting, Callahan whittled the narrative down to "one allegation centering on one individual who…was terminated". Nonetheless, she was launching a training program to remind City janitors of their rights. Commissioner Kate Favetti emphasized that the City has reduced the number of employees who linger vulnerably in provisional and "as needed" positions. Commission Executive Director Michael Brown initially characterized the bribery claims as a "new thing" then acknowledged that investigations had already occurred but "those people that are affected are not coming forward." On that point everyone agrees.

There is disagreement on the scope of the problem and how to proceed. Officialdom describes an "isolated incident" while our sources say that 3 DPH employees have been fired. DHR records show that in August 2016, 4 SEIU 1021 members e-mailed the Mayor, Board of Supervisors and department brass to report the FBI investigation and advocate for surveys and policies to counter workplace favoritism, bribery and the resulting conflicts among employees. Promptly, DPH Director Barbara Garcia and Ron Weigelt conferred with a City Attorney about curtailing the sender's use of DPH e-mail during work hours. Then DHR Director Callahan notified Louise Renne's Public Law Group about the FBI probe.

One month later, DHR Policy Director Susan Gard responded officially that additional layers of policy wouldn't eliminate "a problem being caused by people who are willing to break the law and disregard City policy." Instead, she wrote; "rooting these people out of the system is the most effective way to eliminate this type of abuse." There's an impasse because victims aren't willing to testify. Also, the anti-corruption efforts of Management and Labor are driven by different political expectations.

Records show that the two sides agreed on training janitors about workplace rights, and mounting posters that explain how to get help if violations occur. We asked the DHR for any notices or policies related to workplace bribery or extortion developed since the issue arose in 2016. On 1/27/17 there were "no responsive documents." Federal agencies will likely be more adversarial toward San Francisco in coming years. Better to quell corruption internally - before the feds step in.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

March 2017

Will Honesty and Sanity Save Laguna Honda?

By Dr. Maria Rivero and Dr. Derek Kerr

Eugene Jeandeville

On 1/10/17 Laguna Honda Hospital (LHH) CEO Mivic Hirose disclosed a State citation and $100,000 fine for the accidental death of a patient. It was 85 year old Eugene Jeandeville. "Gene" had lived at LHH since 2004 due to dementia complicated by leg weakness and falls. During a movie outing in November 2014, he was briefly left unattended in his wheelchair. It was parked on an incline. He fell head-first from the rolling wheelchair whose brakes hadn't been locked. Two weeks later, Gene died from the resulting traumatic brain injury according to California Department of Public Health (CDPH) records. The incident was harrowing for his many devoted caregivers at Laguna Honda. Yet, it mystified his old friends whose inquiries met evasions. Worried that "something was being hushed up," some contacted the Westside Observer. The WSO has tracked the case since our "Requiem for an Old Friend" reported on April 2015.

Commendably, LHH disclosed the State investigation of the accident, the penalty imposed, and the corrective actions the hospital has taken – before the CDPH issued its Press Release on 1/19/17. The CDPH notifies the media about Class AA citations, the most severe, whose fines range from $25,000 to $100,000. Surprisingly, LHH's own revelation occurred at its public Joint Conference Committee meeting – a forum usually orchestrated to conceal lapses, spin controversies and celebrate trivia. It took 2 years, partly due to a backlog in the City Medical Examiner's Office, the bureaucratic pace of State regulators and the gravity of the case. Still, LHH's public disclosure could mark a notch toward honest accountability. Adverse outcomes, though rare, occur in all hospitals. Airing them publicly is dreaded and difficult. Doing so shows professional integrity and respect for the communities served.

At the same meeting, LHH quietly reversed a bizarre feature of its Admissions Policy. After 12 years, the hospital Medical Director has been restored as "the ultimate authority over admissions." Sane as this sounds, such authority could be uneasy for recently-appointed Medical Director Dr. Michael McShane.

During the notorious Flow Project of 2004, a reckless political decision was made regarding patient admissions. Former LHH Medical Director Dr. Terry Hill was fired for prioritizing patient safety over speeding the flow of younger, sometimes violent, non-paying patients from SFGH. Then, a long-standing medical responsibility was usurped at the unqualified hands of newly-imposed CEO John Kanaley – a marine engineer turned administrator. In 2009, former dialysis nurse turned administrator Mivic Hirose succeeded him, retaining final say over admissions. Apart from the potential harms and liabilities involved, that Admissions Policy degraded professional relations and the reputation of a hospital that aspires to be more than a Nursing Home.

Perhaps these steps toward honesty and sanity were spurred by external pressures from regulators or attorneys. Nevertheless, they are encouraging signs for the New Year.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: watchdogs@westsideobserver.com

February 2017

City Hall Watchdogs

Show-Down on Cronyism and Conflicts of Interest

By Dr. Maria Rivero and Dr. Derek Kerr

The Civil Service Commission (CSC) convened on 9/19/16 to respond to charges of "favoritism, nepotism, and cronyism" in City hiring and promotion. These complaints, mostly from Human Services Agency (HSA) and Department of Public Health workers, rattled the CSC last November. (see WSO, May & June 2016)

CSC Executive Director Michael Brown reported that of the 27 complaints, one was validated. Nine were deemed outside the Commission's purview, and 17 showed no violation of existing rules. Non-violations predominated due to the "broad discretion" granted to appointing officers since "Civil Service Reform" in 2005. Despite Brown's findings, CSC Chair Gina Rockanova identified an "unfair hiring process" as "the elephant in the room." Indeed, complainants asserted that "managers do whatever they want" including secret promotions, stacking or over-ruling interview panels, and black-listing dissidents. While all City jobs require minimum qualifications, indignant employees insist they are "not given a fair opportunity to compete" because non-merit factors like relationships and favoritism influence appointments.

Representatives from the most-blamed departments were summoned to the Commission. DPH Human Resources Director Ron Weigelt indirectly acknowledged a diversity "breakdown" within Laguna Honda's nursing department, which is disproportionately Filipino. However, he didn't explain why it happened or if any private entities benefitted from it. He vowed to extend outreach and recruitment efforts to under-represented communities. Since January, DPH hiring managers and interviewers have been required to study "implicit bias" and sign an agreement that nepotism, cronyism and discrimination are prohibited.

Vividly absent was HSA's beleaguered Human Resources boss, Luenna Kim. Instead, her subordinates prescribed more outreach and recruitment – even though HSA's workforce is already ethnically balanced, unlike the DPH's. Once again, Commissioner Rockanova re-directed; "Complaints are not just about diversity - but about unfairness in the hiring process." Then HSA announced that hiring managers and recruiters are being paired with HR analysts to coach them on "implicit bias" and "potential conflicts" so that job-related criteria guide hiring decisions. HSA also pledged to "increase transparency" by communicating with staff about its recruitment and selection processes.

The Commission announced a forthcoming Relationship Policy to deal with romantic and familial relationships between job applicants, employees and appointing officers. Currently, employees are prohibited from influencing the hiring of family members or supervising them directly. However, both the DPH and HSA have been roiled by charges of favoritism and conflicts of interest involving contractors as well as employees. The renewed focus on relationships is partly due to controversy swirling around Antonio (Tony) Lugo, HSA's Welfare to Work and Workforce Development Director since 1999. His base salary was $169,080 in 2015.

Lugo is a Program Manager, but is also listed as a Deputy Director. Deputy Directors, according to the City's Campaign and Governmental Conduct Code; "…shall disclose income (including gifts) from any source, interests in real property, investments, and all business positions…" In his capacity as a Program Manager within San Francisco, Lugo checked "no reportable interests" in his Statements of Economic Interest from 2012 through 2015. He wasn't required to file them previously, HSA told us. HSA's Statement of Incompatible Activities, a guide to avoid conflicts of interests states; "No officer or employee may knowingly provide selective assistance (i.e. assistance that is not generally available to all competitors) to individuals or entities in a manner that confers a competitive advantage on a bidder or proposer who is bidding on a City contract." Problem: Public records suggest a possible conflict involving Lugo and Dalila Ahumada. She's the Director of Arriba Juntos, a venerable, major non-profit provider of job training and employment services to HSA's Welfare to Work Program – a program headed by Lugo. Ahumada earns $125,000 annually at Arriba Juntos, and previously served on Grievance and Oversight committees in the Cal-WORKS Program overseen by Lugo. Alameda County property records show that since September 2002, Antonio Lugo and Dalila Ahumada have co-owned a rental condo in Albany. Their mailing address for property taxes is a house in San Pablo, owned by Ahumada. Controller's records show that Arriba Juntos has received some $44 million since 2006 – largely through HSA grants. About 25% of the grants came directly from City funds, the rest from federal grants administered by HSA. IRS records for 2014-15 show that half of Arriba Juntos revenues - $5.3 million - were government grants.

There's more. An 8/24/16 Controller's independent audit identified significant lapses; both in HSA's oversight and in Arriba Juntos' delivery of services. Although Arriba Juntos is inspected annually by the Controller's Citywide Non-Profit Monitoring Program, HSA representatives are closely involved in these inspections. The Controller instructs the Lead Monitors; "…your first resource should be your supervisor and/or your department's Steering Committee representative."

The big question is whether an outside relationship between Tony Lugo and Dalila Ahumada may have given Arriba Juntos an advantage in securing HSA grants. Typically, HSA solicits bids via a public Request for Proposals. Applicants submit proposals and bids, and they are interviewed by a Review Panel whose 3 members ask a set of standardized questions. Scores are assigned to each response and tabulated to determine which vendor has the highest average score. Tips from an HSA insider can give a favored bidder a competitive advantage.

While grants are approved by the Human Services Commission, CEO Trent Rhorer, and HSA's Contracts Director, the actual selection occurs when competing bids are reviewed. That process is approved by the involved Program Manager, among others. For example, on 6/19/15 Arriba Juntos won a $495,000 HSA grant after successfully bidding for a street-cleaning job program. Workforce Development manager Bill Wedemeyer, who reports to Tony Lugo, co-authored a Request for Proposals, co-wrote the interview questions and co-selected the 3-member Review Panel that assessed the responding bids. Lugo was among those who oversaw the process, per HSA records.

Grant renewals and modifications undergo far less scrutiny. For example, Arriba Juntos got a $7.4 million grant over 3 years in 2013. It was modified to $8.4 million in 2015, then renewed for $6 million over 2 years in 2016. Renewals and modifications rely on a Program Manager's recommendation. HSA told us the final decision also involves Budget and Contracts managers because "there has to be sufficient funding and a decision by management to use the funds for this", and it "must be vetted by upper management." Still, Lugo's key position and his apparent ties to Ahumada have kept staffers buzzing. It's not the first time. Between 2007 and March 2016, Lugo co-owned an Ocean View house with Terri Austin. Austin rose to Principal Administrative Analyst in Lugo's Workforce Development Program until 2012 when she became HSA's Integration Coordinator.

Potential conflicts of interest can be averted by segregating the involved individuals from relevant decision-making, disposing of assets that create the conflict, or obtaining an Advance Written Determination from the CEO stating that no conflict exists. We asked HSA, CEO Trent Rhorer and Tony Lugo if such steps were taken regarding Lugo's apparent real estate holdings with a former subordinate (Austin) and a vendor (Ahumada). HSA found "…no existing documents (or) explanatory statements of administrative action surrounding potential conflicts of interest". Nonetheless, appearances matter. Perceived high-profile entanglements fuel claims of "favoritism" and erode the sense of organizational integrity that keeps employees loyal and motivated.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

December 2016 / January 2017

Battling the Auto Break-In Crime Wave

By Dr. Maria Rivero and Dr. Derek Kerr

The City recorded a 5-year peak of 24,826 car break-ins in 2015 – an average of 70 a day. Alongside a big jump in overall property crimes, the rate of auto burglaries per 100,000 City residents rose by 22% from 2014 to 2015. More startling revelations appear in a June 2016 Civil Grand Jury report titled Auto Burglary in San Francisco. Auto break-ins almost tripled since 2011. In 2015 alone, property losses were calculated to exceed $19 million, without the costs of repairing damaged vehicles. Only 1.9% of the perpetrators were arrested, and even fewer convicted. With such long odds for recovery, prevention is key.

What Drives Auto Burglaries: There’s a tendency to associate car break-ins with the homeless, drug addicts and juvenile delinquents. That connection is minor; some 75% of auto burglaries are committed by criminal street gangs. Overwhelmingly, perpetrators are young, unemployed men with prior criminal records. Skilled and organized, they stake out lucrative targets (tourist sites, Costco, Stockton Garage) then work with cell-phones, flashlights, glass-breaking tools, look-outs, getaway drivers and fences across the Bay Area. They are proficient at counter-surveillance and evading capture. Some are tech-savvy, opening cars with electronic gadgets that mimic or remotely activate your key-fob signal. More than just a crime of opportunity, auto burglary is a means of livelihood with a self-reinforcing thrill.

Accounting for crime trends is notoriously difficult. Simply stated, crimes flourish when pay-offs are high and arrests are low. The influx of monied newcomers and tourists leaving valuables in cars makes San Francisco a lush destination for thieves. Many residents can’t distinguish their neighbors from suspicious strangers. More folks park on streets as garages fill with stuff or tenants. Much has been made of the November 2014 State Prop 47 that reclassified “non-serious, non-violent” felonies, like car break-ins yielding less than $950, as misdemeanors. However, research shows that many States have lowered theft felonies to misdemeanors, and none saw an increase in theft crimes.

More important, per the Civil Grand Jury, was the SFPD’s 2009 pivot toward Community Policing under Mayor Newsom and Chief Heather Fong. Until then, investigative units like the Serial Crimes Unit had been centralized at SFPD Headquarters. That allowed inter-unit collaboration and cross-precinct responses to serial crimes. To better partner with neighborhoods to fight crime, the SFPD dispersed investigators to local precinct stations. This decentralization, including disbanding the Serial Crimes Unit, favored criminal outfits operating across precinct and City boundaries.

Putting away car burglars is tough: it requires an eye-witness or video evidence. The rare suspect who gets arrested must be charged or released within 48 hours. So, cops scramble to compile evidence that meets the “beyond a reasonable doubt” standard. Only then can the DA press charges in court. If the victim is a tourist who cannot return to testify, the case may fail. Of 487 auto-burglary arrests in 2015, the DA took action in 390 (80%). Even so, single-incidents involving non-violent offenders often resulted in minimal or no jail time.

Law Enforcement’s Response: Starting in 2015, the SFPD and the DA’s Office revamped their tactics to build stronger cases and to target prolific auto burglars. After several high-profile murders were linked to guns stolen from cars, the SFPD deployed a centralized unit, the Patrol Bureau Task Force, to tackle cross-precinct burglaries. With steadily augmented staffing, now 19 officers plus 4 crime analysts on stand-by, the Patrol Bureau functions as a Serial Crimes Unit. It pioneered the “bundling” of multiple incidents into one prosecution by surveilling prolific offenders as they commit serial break-ins, until enough evidence is gathered to convict. Along with surveillance, crime analysis and investigation, it specializes in post-arrest evidence collection. Videos, victim statements, fingerprints and descriptions of stolen property are presented to the DA within 48 hours. These developments align with the Grand Jury’s recommendation to restore the Serial Crimes Unit.

The DA’s “Crime Strategies Unit” also functions as a Serial Crimes Unit, collaborating with the SFPD Patrol Bureau. Formed in 2014 - the first in California, its prosecutors are assigned to neighborhood precincts, using analytics and local intelligence to thwart recurrent crimes. It has mapped a network of security cameras to speed access to video evidence. Security cameras owners can register theirs online at sfdistrictattorney.org. The DA’s charge rates improved from 63% in 2014 to 80% in 2015.

Westside Communities Mobilize: The spikes in auto and residential burglaries alarmed and mobilized Westside communities as reported by Tom Pendergast in the April 2016 WSO. In July, Taraval Station’s Captain Denise Flaherty announced that uniformed and plainclothes officers had been deployed based on data showing where and when most break-ins occurred. Follow-up investigations were intensified to build stronger cases. Volunteers on the Community Advisory Police Board, a gem of the 2009 Community Policing model, shared community concerns and ideas with police brass, then created and distributed the earlier-pictured warning sign to neighborhood hot-spots. Supervisor Norman Yee began crafting legislation requiring rental car companies to warn tourists about break-ins and how to prevent them. On 10/18/16 the Board voted 7 to 4, approving his “Neighborhood Property Crimes Unit” ordinance. Mayor Lee vetoed the Ordinance on 10/26/16. It would have created a Property Crimes unit in each precinct with the flexibility to address unique local crime patterns, while connected to the centralized Patrol Bureau Task Force.

Car break-ins steadily subsided – until September. At a 10/18/16 Community Forum, Sgt. Bernardi assured 25 Taraval precinct residents that burglaries are prioritized with “more effort” applied to monitoring hot-spots, collecting physical evidence, “working every lead” – and making arrests. Taraval Station’s exemplary website (www.Taraval.org) delivers monthly analyses of auto and house burglaries:

Prop R – Safe Neighborhoods Ordinance: Reacting to rising property crimes and homeless encampments, Supervisor Scott Wiener authored Proposition R to create a “Neighborhood Crime Unit” within the SFPD. It aims “to make neighborhoods safer and improve quality of life” – as did the 2009 push for decentralized policing. Instead, Prop R re-centralizes various crime units into a single command structure comprised of 3% of SFPD officers. Currently, the growing Patrol Bureau Task Force constitutes 1.1% of SFPD’s 1,707 officers. Prop R would take effect only when the SFPD roster reaches 1,941 sworn officers, as mandated by the Charter, and as expected in late 2017. Civilians should guide policing, and Prop R resonates with frustrated voters. However, it imposes a policing solution, something that the SFPD, working with the DA and the Department of Homelessness, is well able to design, is already implementing, and can modify as crime trends shift.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: watchdogs@westsideobserver.com

November 2016

Campaign Spending

Supervisor Mark Farrell v. CCSF

By Dr. Maria Rivero and Dr. Derek Kerr

The whopping $190,903 forfeiture imposed on Supervisor Mark Farrell by the Ethics Commission is among the most controversial in the City's history of campaign law violations¹. Now Farrell and the City are suing each other. In the era of Citizens United, money as speech lurks beneath their Superior Court clash. It was triggered by the Ethics Commission's bold response to a Fair Political Practices Commission (FPPC) finding that Farrell's 2010 supervisorial campaign unlawfully coordinated with an "independent" expenditure committee, Common Sense Voters.

Supervisor Mark Farrell

The FPPC Investigation:

The probe of Farrell's tainted 2010 campaign was elongated by months of inactivity between January 2011 and November 2014. Conveniently, it ended just after Farrell's re-election. The FPPC's most vigilant source, Janet Reilly, wasn't interviewed. Neither were Tom Coates or Dede Wilsey, whose $191,000 funded Common Sense Voters' (CSV) attack ads against Reilly. Transcripts of interviews with Farrell and seven associates show that most of them were lawyered up, often defaulting to "I can't recall" and "I don't know." Farrell denied any and all improprieties, fingering his campaign consultant Chris Lee as a "rogue agent."

In November 2014, the FPPC issued a stipulation: Chris Lee, had coordinated the set-up, fundraising, and campaign planning of CSV and thereby "caused it to become a controlled committee of Mark Farrell." Per the Political Reform Act, a controlled committee is one that is directly or indirectly controlled by a candidate, or a candidate's agent, or that acts jointly with the candidate in making expenditures. Since Farrell denied cheating and none of those interviewed asserted otherwise, the FPPC added, "The evidence supports the finding that Mark Farrell did not authorize Respondent Lee, as an agent of the Farrell Committee, to coordinate with Respondent CSV." The FPPC recognized Farrell's responsibility for his agent's actions, but voted 3 to 1 finding Lee "most responsible." Lee was fined $14,500 for enabling CSV "to send out hit-pieces on opponents without disclosing its association with the candidate."

Ethics Commission Asserts Itself: As a State agency, the FPPC couldn't address the City's $500 limit on campaign contributions. Its $14,500 fine for influencing $221,500 in "independent" expenditures - 44% of all pro-Farrell spending - was hardly a deterrent. After inertly participating in the 4-year FPPC probe, former Ethics Director John St. Croix notified Farrell on 12/9/14 that CSV expenditures beyond $500 were considered donations to his campaign. Since CSV reported spending $43,399 supporting Farrell and $148,004 opposing Reilly, Farrell had to forfeit the $190,903 exceeding the $500 limit. When Reilly's attorney, Charles Bell, demanded additional penalties for the "phenomenal abuse" of City campaign laws, it sparked a duel with Farrell's attorney Jim Sutton.

In a series of meetings before skeptical Ethics Commissioners, Sutton insisted his client had been "completely exonerated" by the FPPC, and that the 4-year statute of limitations for City campaign law violations had expired. He portrayed Farrell as a novice, reliant on his consultant, and unaware of campaign violations - until his FPPC interrogation in 2012. Sutton deemed the forfeiture demand unprecedented and inapt because Farrell never held the money that CSV collected. Further, Farrell had cooperated with the FPPC – in full view of Ethics staff who failed to take timely action. Bell countered that Farrell was liable for his agent Lee's violations, and that the "fraudulent concealment" of his wrongdoing extended the deadline for legal action. For example, Farrell never corrected his campaign reports to show that CSV was controlled by his campaign. And since CSV was controlled by Farrell's campaign, it was his money.

Then came a schism between the Ethics Commission, its Executive Director and the City Attorney's Office. Behind the scenes, the City Attorney declined to pursue a civil claim against Farrell, citing the statute of limitations. Remarkably, the commissioners forged ahead with their forfeiture demand. Then St. Croix caved, drafting a one-sentence waiver citing "statute of limitations concerns." On 4/27/15 the commissioners decided that they, not the Director, had the final say on the waiver. The Deputy City Attorney assigned to Ethics cautioned he was "unaware" of any precedent for the Commission to "adjudicate" its Director's waivers. The City Attorney had long sought to confine commissioners to setting policies while letting department heads implement them. Per Administrative Code section 2A.30; "Each department head shall be immediately responsible for the administration of his or her department." But the Charter empowers commissioners to appoint and remove department heads, and overrule administrative decisions, as long as they do so through the department head. To Commissioner Keane, granting the waiver would be "shameful and unconscionable" for "one of the most egregious campaign violations that have come before us." The commissioners shunned a formal hearing – an avenue limited to a $5,000 fine. Lamenting that they hadn't been apprised of the FPPC investigation until it ended, they rejected St. Croix's minimalist waiver and demanded an explanatory one.

On 6/5/15 St. Croix's revised waiver explained that without "… evidence before it that you committed an act of fraud…the Commission has decided to waive the demand for forfeiture." Except it hadn't. Again, the commissioners spurned the waiver. Commissioner Keane asked; "If Farrell is imploring waiver, why has he not come before us," adding "Farrell could waive the statute of limitations and defend his integrity at a Hearing." None of the commissioners believed Farrell was clueless about CSV's machinations in his behalf. As summarized by Keane, the idea that "…Lee was able to solicit $191,000 without Farrell's involvement isn't credible." They held Farrell accountable for Lee's misconduct because Lee acted within Farrell's agency as his campaign consultant. Sutton decried their over-ruling of St. Croix by interpreting the Campaign & Gov't Conduct Code: 1.168(c)(4) as "solely" authorizing the Executive Director to waive forfeitures. Ethics Chair Paul Renne asserted the Commission's "inherent" right to overrule its Director. Otherwise, "we, as a Commission, are just a bunch of supernumeraries," Keane added.

The forfeiture demand was referred to the Treasurer's Bureau of Delinquent Revenue for collection. Sutton stone-walled until 11/4/15, then rebuffed it because the FPPC "concluded that Supervisor Farrell did nothing wrong." The Treasurer sought guidance on the impasse. On 4/25/16 a frustrated Commissioner Keane asserted that the Farrell campaign "took illegal contributions and laundered them" through CSV. After closed session deliberations, Ethics decided to sue Farrell. Four days later, Farrell sued Ethics. On 5/23/16, Ethics instructed the City Attorney "to file a cross complaint" to recover the $190,093.

Farrell's Money as Speech Defense

Farrell's lawsuit emphasizes the statute of limitations expiration, the FPPC stipulation targeting Lee, the unfairness of forfeiting funds he never held, and the denial of due process without a formal Ethics hearing. The City's cross-complaint alleges that Farrell engaged in "concealment" and was "personally involved in coordination with CSV, and was aware of Lee's activities in this regard." Since Farrell blamed Lee for going "rogue," it asks why "Farrell has never explained Lee's motivation for acting in such an allegedly unauthorized manner," and why Farrell "should not ultimately be held responsible for the actions of all persons working for his campaign."

In a First Amendment twist, Sutton fired off a "Special Motion to Strike" the City's cross-complaint for violating Farrell's freedom of speech. His tightly-woven 7/18/16 plea contends that the City's case is untenable; ergo, Farrell is being victimized "because he exercised his constitutional rights to run and campaign for office." On 7/29/16 the City defended its enforcement of contribution limits, adding that campaign law violations are not protected rights. Sutton replied that since the City's allegations are unproven and Farrell "vehemently denies" them, the City is persecuting Farrell for "raising and spending funds to be used to communicate with voters about policy issues and his qualifications for office." Two weeks before the scheduled 10/3/16 Superior Court hearing - a settlement proposal; Farrell offered to pay $25,000.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: watchdogs@westsideobserver.com

1. Case # CGC16551745

2. WSO, July '16 - westsideobserver.com/news/watchdog.html#jul16

October 2016

Sewergate:

Gushing Costs and Profits in City's
War on Whistleblowers

By Dr. Maria Rivero and Dr. Derek Kerr

The fate of high-level City whistleblowers is retaliation. Then immiseration, as internal avenues of redress lead to dead ends, notably Human Resources departments that are harnessed to management and an Ethics Commission that hasn't sustained a retaliation claim since its founding. Whistleblowers can either submit to burial or seek validation externally from courts or the media—at a cost.

Herrera's Chief Trial Attorney Joanne Hoeper

Take Sewergate—the dispute between City Attorney Dennis Herrera and his former Chief Trial Attorney turned whistleblower, Joanne Hoeper. Her lawsuit alleges that the City Attorney's Office enabled a fraud-tinged sewer replacement scheme that drained $2 million in taxpayer dollars annually, and that Herrera fired her for exposing it. Herrera maintains he fired Hoeper for "sub-par performance" and "making reckless and unsupported charges." To defend himself and the City Attorney's Office, Herrera retained "outside counsel" - the elite law firm Keker & Van Nest. Its August 2014 sole-source, no-bid contract granted $850/hour for an unbounded sum, "Expected to exceed $50,000." Now we know by how much.

Sunshine Records Released

Records released after Karl Olson of the ROCK law firm threatened to sue under the Public Records Act, show that between October 8, 2015 and July 27, 2016, Keker & Van Nest collected 22 checks totaling $2,179,762. Had the City Attorney's Office taken this case, even at its top billing rate of $291/hour, the costs would be one-third of almost $2.2 million in taxpayer funds. The City Attorney's Office held 10 other sole-source contracts for professional legal services in 2015-16. Unlike the open-ended Keker & Van Nest deal, their pay-outs were capped. None came close to the Keker & Van Nest outlay. All 10 totaled $1,895,000.

According to City Charter section 6.102, the main reason to retain outside counsel is to avoid conflicts of interests. For example, when Hoeper filed her initial retaliation claim against the City Attorney's Office, it was referred to the Santa Clara County Counsel for independent evaluation since Herrera was the respondent, and therefore conflicted. Hiring outside counsel may also be appropriate for unusual or specialized cases, internal investigations, or to minimize workplace distractions. However, the Charter requires that City officials; "shall give preference to engaging the services of a City attorney's office, a County counsel's office or other public entity law office…"

Keker & Van Nest

How did Herrera come to hire Keker & Van Nest – a private and pricey powerhouse that occasionally does pro bono work? Granted, the lead defense attorneys, John Keker and Susan Harrison, served on the Police and Ethics Commissions, respectively. But according to The California Lawyer, Keker is "the lawyer other attorneys would turn to when they are in trouble." We asked the City Attorney's Office for policies or legal opinions that justified the sole-source contract with Keker & Van Nest, as well as records showing that public entity attorneys had been solicited to take the case. There were none. As to our query; "Who approves the City Attorney's decision to hire outside counsel?" we were told; "Given that the lawsuit is an active litigation matter, we are disinclined to respond to your questions about it at this time."

Campaign Donations

Pre-trial litigation costs are exploding due to Keker & Van Nest's stratospheric fees and hours. Calculated at $850/hour, payouts through July 2016 amount to 2,564 hours - equivalent to one attorney working 40 hours a week non-stop for 16 months. Signed 2 years ago, the retainer agreement identifies 3 attorneys, but doesn't limit the number Keker & Van Nest can assign to the case. As of July, the contract hasn't been amended. Further, it's unlikely that the firm's billing and case-staffing practices are being scrutinized, given its cozy relationship with City Hall. Per Ethics Commission filings, John Keker, Robert Van Nest and 9 of their associates contributed a total of $5,500 to Herrera's 2005 campaign. Herrera's 2011 mayoral campaign received $8,000 from 16 Keker & Van Nest attorneys. Other law firms and attorneys supported Herrera, but in 2013 Keker also donated $25,000 to the America's Cup Organizing Committee at the behest of Mayor Ed Lee.

Judge Richard Ulmer Denies Team Herrera's Motion

After Herrera dissed Hoeper's claim as "baseless allegations of wrongdoing from a disgruntled former employee," it was expected to be thrown out of court. Instead, on June 2, 2016 Superior Court Judge Richard Ulmer dismantled Herrera's arguments that Hoeper relied on privileged information she obtained as an attorney, ran afoul of the statute of limitations, and failed to tie her termination to her sewer investigation. Ulmer denied the City's motion for summary judgment and granted Hoeper a July 5th trial.

Team Herrera appealed to block the trial, arguing that it would cause "irreparable harm to the City" by exposing "privileged information and attorney work-product." This despite the Court's agreeing to seal portions of briefs deemed confidential. Herrera's petition was cast as upholding a "public interest", namely, preserving the "sanctity of the attorney-client privilege." No mention of a public interest in the City Attorney's handling of thousands of dubious sewer claims, or of the private interest served by prolonging litigation at tax-payer expense.

Appeal Denied — Herrera Moves to a Higher Court

The Appeals Court denied Herrera's petition, but another appeal was filed with the California Supreme Court on August 12th. Borrowing the tone of Herrera's 2014 portrayal of Hoeper as angling to "shake-down tax-payers," one might ask whether he's doubling as a "rain-maker" for Keker & Van Nest. The City was granted a temporary stay until October 12, 2016. By then, legal fees will be surging toward $3 million. A Public Advocate audit, and oversight of whistleblower protections, are needed.

1. Westside Observer: Sept. & Nov. 2014, Feb. 2015.

Dr. Maria Rivero and Dr. Derek Kerr repeatedly expose wrongdoing. Contact: watchdogs@westsideobserver.com

September 2016

Going Negative:

Supervisor Mark Farrell v. Ethics Commission

Dr. Maria Rivero & Dr. Derek Kerr

Not once did Supervisor Mark Farrell stand before the Ethics Commission to answer questions at 8 public meetings over 18 months. Whether indignant, insecure or entitled, he couldn't access the humility once displayed as a novice candidate, or the comity befitting a twice-elected official. Instead, he deployed proxies; attorney James Sutton to parry City Hall, and crisis manager Nathan Ballard to spin the media. Ballard declared an Ethics inquiry into Farrell's tainted 2010 supervisorial campaign "was no reason for Farrell to waste his time."

Farrell had already cooperated with the State's Fair Political Practices Commission (FPPC) investigation. It found that his campaign consultant, Chris Lee, had illegally coordinated with an Independent Expenditure Committee (IEC) that raised $221,500 to defeat Janet Reilly. In November 2014, the FPPC acknowledged Farrell's ultimate responsibility for his agent's misconduct, but decided he hadn't authorized it and held him harmless. Lee was fined $14,500. However, in December 2014 the Ethics Commission told Farrell he violated City campaign laws and had to forfeit $190,903 of the "independent" expenditures made in his behalf. Since then, Ethics has been a battleground with Farrell refusing to pay, Reilly pressing for more penalties, the City Attorney declining to pursue Farrell, Ethics Executive Director John St. Croix waiving the forfeiture, the commissioners overruling St. Croix, and St. Croix resigning. Perceiving "egregious violations", the commissioners had questions for Farrell but got Sutton's answers instead.

Political optics were at play. It looked like big money had swung an election illegally. The beneficiary, Farrell, got a pass. His underling was flamed. Also, Ethics was seeking a budget boost while scrutinizing Farrell who chairs the City's Budget and Finance Committee. Still smarting under its "Sleeping Watchdog" tag, inaction would be seen as "genuflecting before an instrument of power" as Commissioner Keane put it. And, Farrell's posture behind surrogates suggested hubris or guilt. On 4/25/16 the Commissioners voted 5 to 0 to sue Farrell to disgorge the $190,903 in shady contributions. Four days later, Farrell sued the City to block the forfeiture, recoup attorney fees, and procure "other and further relief." On 5/23/16 Ethics Chair Paul Rene vowed to "vigorously" respond with a cross-complaint.

Next came echoes of the negative campaign that launched Farrell into City Hall. Much as Farrell's proxies had trashed his rival in 2010, surrogates were now bashing the Ethics Commission. Sutton portrayed Farrell as the "totally and completely innocent" victim of a "witch-hunt". Ethics was "guilty of a gross violation" and "blatantly ignored City law" resulting in an "outrageous" and "utterly frivolous" forfeiture demand. Ballard painted Farrell as persecuted by biased commissioners and sore losers. Behind it all, the pursuit of power.

The 2010 Battle for District 2: By November 2010, the Marina, Pacific Heights, Presidio and Sea Cliff had weathered a 2-week blitz of anti-Reilly attack ads from an IEC called "Common Sense Voters" (CSV). Underdog Farrell squeaked past his rival by 258 votes. Reilly had 196 more first-choice votes, but Farrell culled more secondary votes. His margin was less than 1% of the 28,911 votes cast. Swaying 129 potential Reilly supporters toward Farrell could have done it. Reilly attributed her loss to CSV's mud-slinging, coordinated by Supervisor Michela Alioto-Pier and Farrell's campaign. She reported violations of the Political Reform Act to Ethics and the Fair Political Practices Commission (FPPC).

The feud originated in 2008 when City Attorney Dennis Herrera decided Alioto-Pier couldn't run for a third term. Seeing an open field, Farrell and Reilly launched their campaigns. Janet Reilly, a former journalist and PR professional, and a Golden Gate Bridge District director, was backed by her husband Clint, a political insider and commercial real-estate baron. Farrell, a lawyer and managing director with Quest Hospitality Ventures was a political neophyte who hired Chris Lee of Town Square Consulting as his campaign consultant. As for Alioto-Pier, she seized the opportunity to run for State Insurance Commissioner. Then, illness thwarted her bid. Still set on governing, she sued the City to run for supervisor. Her win in Superior Court threw the Reilly and Farrell campaigns into disarray. But Herrera prevailed on appeal, forcing Alioto-Pier out in August 2010 and resuscitating the other candidates. Formerly friends, Reilly and Alioto-Pier got entangled in competing ambitions. Reilly even filed an amicus brief faulting Alioto-Pier for disrupting existing campaigns. So, Alioto-Pier projected herself into Farrell's race.

By then Reilly was ahead in endorsements, polls and contributions; eventually receiving $363,865 compared to Farrell's $265,198. Farrell's team had to chop her lead. Enter attacks ads. Because going negative conveys a feral desperation, or a win-at-any-cost ferocity, trailing candidates welcome third parties that malign rivals "independently." IECs can raise unlimited funds, whereas candidate committees are limited to $500 contributions and barred from corporate funding. However, IECs cannot coordinate with candidate committees, must identify major donors in their ads, and report income and expenses to the Ethics Commission.

FPPC records indicate that Farrell's camp concocted "Common Sense Voters" (CSV) in September 2010 when Alioto-Pier decided to endorse Farrell's "common sense values." She encouraged her aides and her political consultant Richard Schlackman to help, gave Farrell her donor list, and boosted CSV. Nominally, CSV was formed by Jack Helfand, a San Mateo corporate attorney. Formerly a law-firm colleague of Farrell's, Helfand served on Farrell's campaign Finance Committee - until he quit to start CSV. He hired Farrell's campaign treasurer as CSV's treasurer. Farrell's campaign consultant Chris Lee gave Helfand set-up advice, pegged Rich Schlackman to guide CSV, writing; "We have a consultant on board that you will need to meet…", and sent him Farrell's campaign donor list. Helfand rallied people "who were sort of outside San Francisco," initially raising $30,500 from 5 venture capital buddies. Slyly, CSV was registered as "primarily formed" to support Farrell – rather than oppose Reilly. Farrell told the FPPC he learned about CSV "through public filings."

Meanwhile Alioto-Pier lobbied socialite-philanthropist Dede Wilsey and Republican real-estate magnate Tom Coates to fund CSV, something Schlackman wanted kept secret "because of politics." Farrell wasn't idle. He told the FPPC that he spent two hours with Dede Wilsey - to solicit a $500 campaign contribution. Wilsey poured $50,000 into CSV 12 days later. Per FPPC records Farrell was "only interested in Coates hosting a fundraising event and possibly writing a check to help out his campaign." Three days after hosting said house-party, Coates pumped $100,000 into CSV, plus another $41,000 the next week. Regarding her energetic fundraising, Alioto-Pier explained to the FPPC that she "really liked Farrell."

In the two weeks before the election, CSV disbursed the $191,000 bestowed by Coates and Wilsey (86% of its war-chest) to depict Reilly as a covert purveyor of "radical politics" and a puppet of the "ultra-lefty Daly-Peskin faction." CSV mailers cited her $500 donation to Peskin's 2000 campaign. Her husband Clint Reilly's $10,000 contribution to the 2008 SF Clean Energy initiative became her "risking public safety." Other ads featured Supervisor Chris Daly as "the wizard behind Janet Reilly's agenda." The ads didn't identify Coates and Wilsey as the major donors. Silly as they sound, such attack ads work subliminally - and effectively, to plant doubts and kindle fears. No matter that Gavin Newsom, Frank Jordan, Louise Renne, and Diane Feinstein denounced the smears as disgraceful, destructive, or ridiculous. Amidst this chorus, Farrell stayed mum. In his victory speech, he pledged to "return common sense…to City Hall."

Common Sense Voters' attack ads overwhelmed all other third party expenditures. Source: Ethics Commission

CSV reported spending $148,004 against Reilly. That doesn't include the $8,399 spent on "comparative mailers" that were actually attack ads, the $5,000 paid to the Republican County Central Committee, or operational expenses like Helfand's $2,181 fee to pay a $500 Ethics fine. Although $35,000 was spent on door-hangers lauding Farrell, most of CSV's $221,500 targeted Reilly. In comparison, outside spending against Farrell was minor; $12,912 by the Bay Area Firefighters PAC and $7,244 from the Democratic County Central Committee.

As for going negative, Farrell finally spoke out in May 2016 while running for the Democratic County Central Committee. In a memo to constituents, he acknowledged that his 2010 campaign had "turned incredibly ugly" - because the Reillys "spent hundreds of thousands of dollars on personal attacks against me" and "tried to win by tearing others down." Why this 180 degree spin? As the Chronicle reported, during the DCCC race Clint Reilly spent $20,000 on ads mocking Farrell's "failed ethics" since he "cheats to win" then sues to "avoid paying" Ethics fines. That's when Farrell condemned as "disgusting tactics" the type of ads that propelled his political career.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

July 2016

Loss of Trust: The Human Services Agency

By Dr. Maria Rivero & Dr. Derek Kerr

Last month's Westside Observer covered employee protests against "favoritism, cronyism and nepotism" within the Human Services Agency (HSA). These complaints have rocked the Civil Service Commission since November 2015. To its credit, the HSA expedited an All Staff Survey in mid-2015, right before simmering tensions erupted publicly.

HSA's All Staff Survey: An impressive 82% of 1,986 active employees responded, almost half being direct client service providers. Most employees embraced HSA's mission and values. However, according to Director Trent Rhorer, two shortcomings emerged: communication throughout the agency is poor, and employee morale is low. But there's more. The survey also indicated; "There appears to be a mistrust of management, especially among line staff…many did not respond to more sensitive questions in the survey (i.e. trust in executive staff management)." Worried about the confidentiality of their responses, 13% declined to identify their programs. Overall, just 43% expressed a "high level of trust and confidence" in Rhorer and his deputies. But among direct client service providers, a dismal 37% trusted top executives.

No survey questions addressed unfair hiring and promotion, yet 15% of 601 submitted comments touched upon hiring, promotions, and staff development. Only 51% of respondents felt that staff members were held accountable for their performance. Current and former employees told us that complaints were inhibited by fears of retaliation. Nevertheless, the report noted; "As with previous surveys, many employees felt that hiring and promotion were unfair. With no opportunities to be promoted, some employees felt less motivated to excel. Some respondents complained that programs were not hiring internally and new employees were unqualified or lacked program knowledge." It recommended; "a succession plan that seeks to develop staff and promote from within (thus) saving considerable time and cost…in hiring and inducting new candidates." HSA data support this idea, as well as the employee grievances behind it. Before the Civil Service Reforms of 2005, promotions from within comprised 63% of HSA job appointments. Since then, they've fallen to 50%. Meanwhile, new hires swelled from 26% to 43% of job appointments.

Despite staff discontent, managers are happy. For example, 86% of managers reported "reasonable work evaluations" compared to 37% of line staff. Being recognized for good work garnered 86% from managers compared to 41% for line staff. And, 92% of managers felt their opinions counted versus just 40% of workers. While 82% of managers trusted top executives, merely 37% of line staff did so. According to 95% of managers, their programs implemented best practices, but only 57% of line staff agreed. Similarly, 94% of managers believed that clients were treated fairly versus 68% of direct service workers.

The survey confirmed that the "Service Center Model" programs, namely the merger of Medi-Cal and CalFresh (food stamps), and the redesigned CalWORKS (welfare-to-work), are troubled. Only 35% of 360 CalFresh and Medi-Cal workers rated their workload as manageable. Their trust ratings for HSA executives were 26% and 48%, respectively, and minimally higher for their program managers. At CalWORKS, trust ratings were 43% for top executives and 54% for program managers. While undergoing taxing reorganizations, these programs rated below average for worker input in decision-making.

HSA's Response: Records show that executives carefully studied survey responses and scrambled action plans to address the negative feedback before releasing the survey results. Deputy Directors met with managers "to discuss what the survey means for their programs." Attention was directed to the ailing Service Center Model programs. Once again, HSA's Innovation Office was mustered to "break out ideas for improvement." Dubbed Service Center Improvement Plan 2.0, it aimed at "helping each other rather than blaming" – a positive psychology approach that can mute legitimate criticism while herding workers down designated paths. Indeed, in 2014 the Innovation Office had defined itself "to meet the vision of our HSA Executive Director Trent Rhorer…and…to advance HSA's mission and values."

Rhorer heeded the survey's recommendations, particularly the call to "develop a communication plan to ensure the agency's messaging is consistent and is reaching employees while also valuing their input." In a memo to all staff, he promised more "leading and managing by walking around." To his Executive Committee on 3/7/16, he announced the need to focus on "communication, employee morale, physical space and hiring and promotion. Multi-year effort. Want to start this year on communication … because it relates to all other areas."

True, but poor communication had surfaced in every Staff Survey, Strategic Review, and Efficiency Plan during his long tenure. Importantly, it doesn't explain the recent outcry against cronyism, or the chasm between satisfied managers and devalued workers. Confidence in management has stagnated around 42% since HSA's 2008 Strategic Review. What's ominously different in HSA's 2016 Strategic Review is the omission of Staff Survey findings and the paucity of staff concerns. It's a skeletal and formulaic version of the comprehensive and introspective Strategic Reviews issued in 2000 and 2008. Like a two-legged stool, it is program-centric and service-focused, leaving employees as machine parts calibrated for ever-increasing efficiencies. Witness the tone of its Human Resources section; "Redesign HR to increase productivity, improve employee morale and reduce the need for physical space." Once again, HSA plans to "Improve speed and quality of hiring process" - without addressing the influx of new hires and complaints of favoritism. Similarly, HSA's insightful Efficiency Plans were replaced in 2012 by technocratic Performance Reports that exclude employee relations. That's when HSA's strategic planning seemingly commodified employees and disposed of trust as a core value. The casualties are employee morale, loyalty, and productivity.

HSA executives should ponder whether discretionary hiring and "flexible staffing" are sabotaging merit-based competition. Why are dedicated employees outraged over nepotism, cronyism, and favoritism? Are "business-like" practices devaluing the very workers who are expected to serve challenging clients with compassion and respect? Building trust requires introspection – then, honest communication. The recommended "consistent messaging" won't enhance trust if used as a mechanism to preserve privileges and push agendas. Instead, HSA needs authentic bottom-to-top communication - like performance appraisals of managers by employees, and staff surveys that ask about unfair hiring and promotion. Meanwhile, communication is precarious. Complainants are terrified of reprisals. Hiring concerns aren't aired before HSA's own Commission. HSA executives haven't talked to union activists. Reluctantly, Mayor Ed Lee's Civil Service Commission assesses whether its mission is being subverted.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: watchdogs@westsideobserver.com

June 2016

Discretionary Hiring Fuels Mistrust:

The Human Services Agency

By Dr. Maria Rivero and Dr. Derek Kerr

The human instinct to favor one’s friends and relatives can undermine government institutions. Favoritism, cronyism and nepotism split workforces into insiders and outsiders – an important predictor of mistrust in management. Cronyism begets more cronies who protect each other by excusing poor performance and ethical lapses. Plagued by patronage, in 1900 San Francisco created a Civil Service Commission to uphold fair, competitive, merit-based hiring.

A century later, the Civil Service system was widely assailed as being too cumbersome to keep up with City hiring and service delivery. Enter Civil Service Reform; the Newsom administration’s 2005 plan to “streamline” and modernize the system. Hiring was deregulated to “improve the quality of the candidate pool”. Promotion was tied to “performance appraisals”. Managers were empowered to use their “expertise” and “business needs” to select the “most appropriate” candidates, rather than relying on “rigid” test scores, minimum qualifications, and seniority. It was called “flexible staffing”. What could go wrong?

In a jarring series of Civil Service Commission hearings since November 2015, some 30 disheartened City employees - most from the Human Services Agency (HSA) - put their jobs on the line to denounce “favoritism, nepotism and cronyism” in hiring and promotion. According to SEIU 1021 activist and HSA employee Sin Yee Poon, hiring has become so discretionary that “Managers pick and choose whoever they want without adhering to merit system policies.” Workers testified about the manipulation and mishandling of job notices, job qualifications, eligibility lists, test schedules and scores, interview panels, as well as the subsequent ranking and selection of candidates. Irregularities that seem to favor or deter certain candidates are covert, or cloaked in “confidentiality”. HSA sources (unnamed to avoid retribution) assert that some new hires are “pre-selected” and fast-tracked into plum jobs “by executive decision” while qualified applicants without patrons trudge through a dead-end hiring process. A recurring theme is the “back-door hiring” of friends, relatives, even lovers, often as “temporary exempts” - positions that don’t require the civil service screenings that ensure qualifications and experience.

Temporary exempt (TEX) positions were designed to quickly hire workers for time-limited projects, seasonal jobs, or as subs for civil service workers on leave. Without civil service benefits and safeguards, TEX jobs cost 30% less and allow managers to hire and fire at will. However, some workers insist that discretion in TEX hiring is being abused in violation of equal opportunity employment. They say that after a year of paid, on-the-job training, inexperienced but favored TEX recruits are deemed eligible to take civil service exams. Allegedly, they are preferentially maneuvered into benefited civil service positions, handed dubious “added duties” then granted undue promotions. In doing so, they leapfrog, and even supervise, more experienced civil service employees. Reportedly, some acquire supervisory, hiring, and service delivery authority without demonstrated experience. Among HSA line staff, there is little trust in these favored employees or the managers who install them.

Along with mistrust, distraught HSA workers describe degraded service delivery, breakdowns of teamwork, declines in workplace ethics and competence, negative rumors, as well as departures of demoralized colleagues. And, there’s fear; those who ask questions or complain say they face bullying, isolation, non-promotion, removal, and black-listing. CalWORKS, a welfare to work program for families with children, is pointedly criticized as a pressure-cooker workplace marked by favoritism, intimidation and a mass exodus of eligibility workers. Complaints of favoritism aren’t new, but their intensity is. HSA’s own 2008 Strategic Review raised “serious concerns” about staff mistrust and asked; “What is the basis for allegations of favoritism in hiring and promotion? What can be done to address the reality and/or perception of favoritism?” Apparently, those questions went unanswered. Civil Service Commission records show that “Inspection Requests” alleging unfair hiring at HSA rose from 1 in 2013 to 16 in 2014. Only 1 was sustained for corrective action. Comparing the years 2010-2012 versus 2013-2015, the average number of hiring complaints rose 10-fold while HSA job recruitments merely tripled. What’s going on?

HSA Backstory: The Human Services Agency (HSA) is the City’s central resource for public assistance. It attracts employees who believe in social justice and helping others. Starting as a bureau to help impoverished widows in 1913, last year its $871 million budget and 2,111 employees provided a spectrum of social services, including housing, job training, health care, food stamps, and in-home support for over 200,000 clients. Today’s HSA arose from the 2004 merger of the Department of Human Services and the Department of Aging and Adult Services – under Trent Rhorer, architect of Mayor Newsom’s 10-Year Plan to End Chronic Homelessness. Like Civil Service Reform, this merger promised efficiencies. But by mid-2008, HSA’s budget had risen 20%, with a 47% increase in contracts and a 6-fold jump in new hires and promotions.

The fiscal crisis of 2008 triggered reductions in HSA positions and multiple “consolidations” within the Welfare-to-Work programs. Since then, employees say that new managers, with increased funding for new initiatives and technology, allowed more hiring and contracting – and favoritism. HSA records confirm that hiring and promotions zoomed from 2009 to 2015. All the hiring and promoting lifts managers into higher positions as well. Mayoral budget records verify HSA’s steady growth, adding another $61 million plus 84 full-time positions for 2015-16. Intriguingly, HSA’s hiring of non-civil service employees tripled in 2013, surging from a prior average of 55 annually to 149 yearly thereafter – and coinciding with the rise in favoritism complaints.

With the implementation of Obamacare in 2014, HSA’s Medi-Cal caseload exploded by 83% in 2 years. Medi-Cal staffing ramped up 30% and the program merged with CalFresh (food stamps) to provide both services at both sites. Newly-funded employment initiatives impacted CalWORKS which was already struggling with State mandates to double its client employment rate to 50%. To ease these transformations, the term “Service Center Model” was applied to the targeted programs. Soon, HSA needed a “Service Center Improvement Plan”. Records show that HSA deployed its Innovation Office with repurposed “employee engagement” tools to manage the strain – with mixed results.

Could the stress associated with new mandates and initiatives, major program changes, and demanding work be the cause of staff discontent? Protesting workers say no, because such stressors have always existed at HSA, and the workforce adapted to them. Similarly, Union-Management tensions aren’t new. What they oppose, they say, are self-serving, underhanded practices that break trust with conscientious Civil Service employees. In next month’s Westside Observer, we will analyze HSA’s 2015 All Staff Survey and management’s response to growing mistrust within the Agency.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

May 2016

SFPD Body-Worn Cameras – Who's Watching Whom?

By Dr. Maria Rivero and Dr. Derek Kerr

The publicized purpose of body-worn cameras (bodycams) is to bring transparency into police activities – especially when police misconduct is suspected. Like two-way mirrors, bodycams can be used to watch law-abiding individuals who are deemed "suspicious". Policies alone cannot prevent bodycams from impinging on privacy rights and First Amendment protections. Their use must be transparent and accountable. That means public oversight - and access to recordings.

Privacy Protections: To protect privacy, the SFPD bodycam policy prohibits filming law-abiding citizens outside of legitimate investigations or beyond what officers "could lawfully hear or record". Officers cannot access the recordings for personal use – only for "a legitimate law enforcement purpose". That way, victims or witnesses of crimes won't fear calling the police because a camera-bearing cop may enter their homes. The policy requires notifying subjects that they are being filmed "when feasible", though civilians cannot direct a cop to stop filming. A red light should appear when the camera is activated. Officers are required to turn on cameras for specific encounters such as use of force incidents, arrests, pursuits, searches and traffic stops. However, filming strip searches, victims of sexual assault or child abuse, and confidential informants is prohibited, except in "exigent circumstances". Before releasing videos publicly, the SFPD may get consent from the subjects or blur their images to respect privacy. As for police officer privacy, the ACLU opposes anonymizing videos of officers involved in misconduct. It also warns that videos reviewed for SFPD performance assessments could be scrutinized for minor infractions to retaliate against department activists and whistleblowers.

First Amendment Rights: SFPD policy prohibits the filming of citizens engaged in First Amendment protected activities such as peaceful demonstrations. However, the bodycam policy allows filming "any citizen encounter that may become hostile" or anytime it "would be valuable for evidentiary purposes". Loophole alert: one angry protestor or an undercover SFPD "infiltrator" could provoke a "citizen encounter that becomes hostile". That could justify filming law-abiding protesters, and assembling dossiers on civil rights activists and social movements "for evidentiary purposes." Capturing "evidentiary" footage is also problematic. The Police Executive Research Forum defines "evidentiary" as data that "could prove useful for investigative purposes". That could mean anything or everything.

More troubling is how counter-terrorism policies are merging with domestic policing. The purview of FBI Fusion Centers has expanded from terrorism to crimes to "all hazards" including "suspicious activities". For example, the Department of Homeland Security and the FBI viewed the Occupy Wall Street and Black Lives Matter movements as "domestic terrorism" or "criminal activity" and coordinated with local police departments to monitor law-abiding participants. These intrusions were justified as "providing situational awareness of activities that may lead to violent action". Similar rationales drove the FBI "Cointelpro" abuses during the Civil Rights era.

Each year, the SFPD reports its collaboration with the FBI's Joint Terrorism Task Force and denies any transgressions. Yet, SFPD may be violating its First Amendment obligations by interrogating, for the FBI, a resident who filed a Freedom of Information Act request regarding his air-travel issues. Recall how the Oakland Police Department "Domain Awareness Center", a $10 million anti-terrorism surveillance project, marketed as a crime-fighter, was primarily deployed to track political protests. Public outrage halted the city-wide spying and led to a Privacy Advisory Commission to check police overreach.

Public Access: Who watches whom depends upon access to bodycam footage. The SFPD Risk Management Office will control access to the data and release recordings "to the greatest extent possible" – unless doing so would violate privacy rights, endanger witnesses, or "jeopardize the successful completion of an investigation". The Office of Citizen Complaints, operating under the Police Commission, will also have access to bodycam videos to pursue complaints of police misconduct. Since the bodycam recordings will likely be stored in TASER International's cloud data base, the SFPD should ensure that neither the vendor nor hackers can access them.

Bodycam videos will be public records under the California Public Records Act and the SF Sunshine Ordinance. In practice however, police dash-cam and body-cam videos are withheld unless a dogged attorney sues for release. Typically, police withhold evidence of misconduct by citing "an ongoing investigation", while quickly releasing videos that exonerate them. Time will tell how the SFPD determines which video disclosures would jeopardize "the successful completion of an investigation".

Related to public access is the integrity of video data. SFPD officers are prohibited from deleting or tampering with bodycam recordings. Disciplinary actions follow violations of SFPD policy, but it's unclear how non-compliance will be monitored and redressed. In incidents where an officer is subject to investigation, the commanding officer "shall take" immediate custody of the camera. Retention of bodycam videos will be in accord with Assembly Bill 69; at least 60 days for routine encounters, and at least 2 years for arrests, crimes, use of force incidents and citizen complaints. But recordings may be saved "for a longer or indefinite period of time…if deemed relevant to a criminal, civil or administrative matter". It will be important to audit retention times to ensure that footage isn't held just because it might come in handy someday.

Without transparency and public oversight, bodycams could reinforce an architecture of mass surveillance that includes automatic license plate readers, Hi-Definition cameras, drones, "Stingray" cell-phone tower simulators that capture nearby calls, "TrapWire" facial recognition technology, and social media monitoring software. Plus, our activities are already tracked and stored by hundreds of government agencies and private companies. Given the state of National Emergency, repeatedly re-enacted since 9/11/2001, and the growing tendency to view "others" as threats, bodycams could end up watching communities rather than police.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they exposed wrongdoing by the Department of Public Health. Contact: watchdogs@westsideobserver.com

April 2016

Watching SFPD's Body Worn Camera Videos

By Dr. Maria Rivero and Dr. Derek Kerr

Violent and militarized encounters between police and communities of color, largely recorded by bystanders and shared on social media, have raised nationwide alarms. "Copwatch" groups are now "policing the police" to expose the dark side of law enforcement. Such community alienation can paralyze crime-fighting. In December 2014, the White House issued an edict titled "Strengthening Community Policing" to "fortify the trust that must exist between law enforcement officers and the communities they serve." It provides $75 million in matching funds for police departments to buy 50,000 body cameras. On 4/30/15 Mayor Ed Lee grabbed the offer, allocating $6.6 million over 2 years to deploy 1,800 bodycams "for every police officer on the street."

Police Chief Greg Suhr called for body cameras in May 2011 - after Public Defender Jeff Adachi released videos of cops illegally searching and ripping-off hotel residents. In 2013 Suhr cut a $250,000 no-bid deal with TASER International to pilot bodycams. The SFPD bodycam pilot went nowhere, boggled by logistics, policy development and institutional resistance to being watched. On 4/18/14 the Board of Supervisors' Neighborhood Services & Safety Committee urged the SFPD to formulate a bodycam policy, despite a projected 5-year cost of $21 million. A year later, DA George Gascon demanded action instead of "playing games."

"Bodycams" are pager-sized devices that clip onto a police officer's uniform to record video and audio. They are tools for the public and law enforcement, a "third witness" to hold police accountable and to deter spurious complaints. To build trust, bodycams must add to the transparency afforded by citizen videos, without enabling police cover-ups, intrusions on privacy, or mass surveillance. Bodycams should also be cost-effective. Once federal matching funds expire, expenses for maintenance, upgrades, video storage fees, personnel time and training will grow. However, bodycams could cut litigation costs by deterring misbehavior by police and civilians alike. In Rialto CA, they reduced citizen complaints by 88% and use-of-force incidents by 60%. Such savings could be wiped out by lawsuits for violations of privacy or freedom of expression. To preserve public funds and trust, sound policies are essential.

On 5/13/15 the Police Commission directed the SFPD to create a Body Camera Working Group to draft a policy in 90 days. The Working Group met publicly 6 times between June and August 2015. Law enforcement was heavily represented. Also included were the Office of Citizen Complaints, ACLU, Public Defender, SF Bar Association, and Human Rights Commission. On 6/9/15 Supervisor Avalos introduced Ordinance 150623 calling for a Surveillance Data Policy with annual audits by the Controller's Office. When the Working Group's draft policy was delivered on 8/11/15, one issue was unresolved: whether officers involved in shootings, in-custody deaths or alleged misconduct should view bodycam videos before or after writing their reports.

In 5 hearings from 9/2/15 to 12/2/15, the Police Commission reviewed the draft policy, adding the best practices set forth in Assembly Bill 69. Passed on 10/3/15, AB 69 grants ownership of bodycam recordings to police departments with chain-of-custody rules, along with public access per the California Public Records Act. All agreed that officers could view videos of routine encounters, but disagreed over viewing footage of critical incidents. While the Commission promised to "vote in recognition of the new normal that trust is a more important metric than an arrest rate," it had to appease both cops and civilians.

Police Perspectives: The SFPD maintains that officer-involved shootings are rare, less than 3 per 10,000 arrests. Currently, involved officers are interviewed voluntarily and allowed to see videos to "trigger recall" before filing a written report. The Police Officers Association (POA) warned that cops will withhold voluntary statements unless they can view bodycam videos. Although cops can be compelled to make a statement, whatever they report under threat of disciplinary action cannot be used against them per the Peace Officer's Bill of Rights. So viewing videos beforehand would better serve investigations and justice.

Cops of all stripes emphasized that SFPD policy demands that "all evidence shall be included" in their reports. Yet, the adrenaline-fueled reaction to traumatic incidents causes memory lapses, "tunnel-vision" and "acoustic suppression." Only by viewing videos beforehand could they deliver "the most accurate and complete" statements expected. They cited similar practices in San Diego and Los Angeles. Entrusting officers to carry guns while denying access to bodycam videos would show that "you don't trust me," one said. Another emphasized that "being treated like a criminal suspect" would be more "divisive." Others faulted the logic of writing "a legal government document before reviewing the evidence." Plus, video ownership was claimed as "the officer's point of view." Writing an initial report, then viewing the video, and then writing a supplemental report would "set up officers to fail" said Chief Suhr. It could expose them to the "gotcha" when their credibility is challenged for any discrepancies.

Civilian Concerns: There have been at least 100 SFPD shootings since 2000, many controversial. The Office of Citizen Complaints receives over 500 complaints annually. Many others are handled by SFPD's Internal Affairs. Citizens testified to fearing the SFPD and losing faith in police reports. For critical incidents, they wanted officers to write a report, then view the video and file an addendum, if needed. They cited similar police practices in Oakland and San Jose. Further, the Inspector General's audit of the NYPD's bodycam pilot program determined that officers should not view videos before reporting on incidents with misconduct implications.

Since the legal standard for justifying use of force is "the officer's perception" of a threat, the officer's independent report should be preserved rather than a re-interpretation based on what appears, or does not appear, on the video. Jeff Adachi argued that viewing the video beforehand alters what officers remember, thereby tainting investigations. The ACLU warned that incriminating events that don't appear are forgotten while events that are captured are recalled as if experienced, thus creating a "false level of accuracy," and potentially enabling cover-ups. Since civilians cannot view videos before interrogations, allowing police to do so confers an "unfair advantage." Commissioner DeJesus insisted that "investigatory best practices" require that witnesses, including police officers, make a statement before viewing evidence. There is also a public safety interest in knowing how officers perceive threats. Discrepancies between officer recall and videos are expected, but gross distortions or fabrications could reveal malpractice.

Commissioners' Compromise: While holding that officers "shall not view" recordings of officer-involved shootings, criminal investigations or in-custody deaths before writing a report, the Commission granted a loophole: "subject to the discretion of the Chief of Police." Chief Suhr already supports officers viewing videos before making out reports. While ceding control to the SFPD, the Police Commission claimed to retain it since the Police Chief reports to the Commission. This compromise calmed the opposing parties as the bodycam policy had been reasonably and transparently created. But that same day, a dazed, knife-wielding 26-year old, Mario Woods, died from 21 gunshots by 5 police officers in the Bayview. Only bystander videos documented the killing. Chief Suhr declared the shooting justified. Then videos surfaced that countered his view and intensified distrust. Had bodycam videos been available, they might have revealed something about the mind-set driving such lethal force. The bodycam policy will return to the Police Commission for final approval after negotiations between Human Resources and the POA. Six months after the policy is implemented, the Commission will conduct a review.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

March 2016

Diversity Brings Controversy

Laguna Honda’s Nursing Challenge

Photo: David Edstrom

By Dr. Maria Rivero and Dr. Derek Kerr

In 2002, the Health Commission adopted a Resolution for “Culturally and Linguistically Appropriate Services” - “to be broadly inclusive of diverse racial, ethnic, sexual and other cultural…groups.”The Department of Public Health (DPH) then formulated a Cultural Competency Policy whose principles include; “To Recruit, Retain and Promote at all levels of the Organization, a Diverse Staff and Leadership That Are Representative of the Demographic Characteristics of the Service Area.” Subsequently, DPH agencies like Laguna Honda Hospital (LHH), and DPH contractors, had to submit annual Cultural Competency Reports showing their compliance or diversity initiatives. The 2008-9 DPH Annual Report boasted that; “DPH’s committed and talented staff reflects the cultural diversity and richness of San Francisco’s population.” Seemingly, the DPH adheres to the City’s 2013 Health Care Services Master Plan guideline for a “workforce that reflects community characteristics.”

Not so, according to six LHH employees who testified before the Civil Service Commission on 11/16/15 and 1/4/16. They risked retaliation by joining 30 other City employees in claiming that favoritism, nepotism and cronyism are sabotaging merit-based hiring and promotions. Here are excerpts;

“Laguna Honda is plagued with isms – favoritism, cronyism, racism - you name it. Every time I turn around, somebody’s child is being hired while people that come and apply can’t get hired. For the past 3 years, I’ve seen young people being hired through the back door, despite Civil Service…then they’re pushed into those cushy positions. Those positions haven’t been posted for people who have more experience and more seniority.” (C.N.A.)

“The workforce is not diverse, it does not reflect San Francisco or the Bay Area. Whoever is in a position to hire, every person who gets hired looks like them, speaks like them, and comes from the same place they come from. And we are the minority. If we are asking questions, and if we are able and articulate to say ‘what’s going on, I’m qualified for this position, I can do this job’, then you are called a troublemaker. So you are excluded from discussions in your Unit…and your colleagues are told not to talk to you… It’s becoming somebody’s living room, somebody’s house, somebody’s backyard.” (LVN)

“Hiring is based on friendships and family. Managerial positions are…set aside for families and friends. Everything is adjusted based on whom it is or who you want to align the job for. There’s no consistency…people are not necessarily hired from the eligibility list. They’re hired ad hoc. We cannot sit by and accept this because one set of people are being asked to…maintain the rules, and another set can come in and do whatever they want.” (C.N.A.)

“Repeatedly at LHH, there are examples of lesser qualified nurses inappropriately installed into supervisory positions because they are in the preferred ethnic group or are related to persons in authority, or they are loyal servants to this group’s dominance. Non-Filipino applicants rarely advance within LHH.” (RN)

Stunned, the Commission promised to investigate, while noting management’s right to organize its work-force. That right can breed disparities. A 2010-11 Whistleblower Program investigation confirmed that an SFGH Nursing Supervisor responsible for staff recruitment committed nepotism. She “resigned” and 3 of her relatives were “released.”Though relatively few DPH employees complain to the Civil Service Commission, its 2013-14 Year-End Report cited; “a notable increase in the number of complaints and/or questions” about employees not meeting minimum job qualifications, while 3 of 8 City departments “did not conduct verification of qualifying work experience for their appointees…” The DPH’s 2014 Work Experience Survey found that 43% of 3,220 employees felt professionally stymied. While the surveyors merely urged more “professionalism and respect”, it’s telling that the DPH responded with “a manager training that reviews hiring and onboarding procedures.”Laguna Honda’s 2014 Employee Satisfaction Survey identified the main causes of discontent as; “unprofessional” or inexperienced managers, “favoritism, retribution, bullying”, and ignoring feedback.

Concerns about diversity and hiring have long-simmered at LHH. Because hospital employees must possess job-related qualifications, their demographics won’t exactly match the communities served. Nursing shortages in competitive healthcare environments may require imported skills. But according to LHH’s 2011 Cultural Competency Report, and the Department of Human Resources (DHR) 2013 “Equal Employment Opportunity Workforce Utilization Analysis”, there’s a striking imbalance;

The 47% Filipino demographic of LHH workers in 2011 didn’t reflect the patients who were; 2% Filipino/Other, 37% White, 25% Black, 13% Hispanic, and 23% Asian. It exceeded San Francisco’s 5.2% Filipino population. It doubled the DPH’s percentage, which itself topped other City departments. Rather, it reflected LHH’s Nursing Department that hired 60% of hospital employees. Although trends in hiring are indicators of cultural competency, there’s no current data on the ethnic distribution among LHH employees, now numbering 1,678. LHH hasn’t submitted any Cultural Competency Reports with employee demographics since 2011. Both the DPH and the DHR denied having ethnicity data on Laguna Honda employees.

Nonetheless, ethnicity had been the focus of an internal “Cultural Competency Assessment” produced for LHH executives in 2007. It reported; “Nursing is dominated by Filipinos who comprise 71% of (its) employees”, including 80% of Registered Nurses, 81% of Licensed Vocational Nurses, 67% of Certified Nursing Assistants, and 54% of Nurse Managers. Among patients, 3% were Filipino, creating “a great disparity between the ethnic composition of those who give and receive care.”Almost 10 years later, LHH nurses say little has changed. Here is a comparison of Filipino Registered Nurses, Licensed Vocational Nurses and Certified Nursing Assistants within the DPH in 2013 versus LHH in 2007, the most recent numbers available;

LHH’s 2007 “Cultural Competency Assessment” warned; “Disproportionate representation on one ethnic group among nursing staff causes tension and strife in some units, and makes it difficult for new staff that is not from the majority group to become accepted as a team member and, even more, as a unit leader.” Staff interviews revealed examples of marginalization. Further, “In discussing whether the institution does anything to actively recruit from groups that are underrepresented…the official position was not entirely clear.”While priority was given to some applicants who spoke Cantonese or Spanish, monolingual English speakers were not actively recruited. A key recommendation was; “Review recruitment policies – what is the ultimate goal for the composition of LHH’s nursing department?”

Caring, competent, and generous, LHH’s nursing staff diverges from DPH’s cultural competency aspirations. Minority nurses say that lapses in merit-based hiring are perpetuated by workforce disparities - and management preferences. As Civil Service Commissioner Favetti emphasized; “The integrity of the system is directly tied to the individuals who administer the system.”Beyond LHH’s control are colonial, political and socio-economic forces described in Choy’s “Empire of Care: Nursing and Migration in Filipino American History”, and Rodis’ “Why are there so many Filipino nurses in the US?” What’s needed in 2016 is Laguna Honda’s Cultural Competency Report - with nursing demographics, an assessment, and a plan.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

February 2016

Expenses for Acute Care show marked increases. Not shown is the 48% reduction in services.

Doing Less With More

Laguna Honda’s Acute Care Slump

By Dr. Maria Rivero and Dr. Derek Kerr

According to the Controller’s Office, Laguna Honda Hospital (LHH) “is one of the most expensive Skilled Nursing Facilities (SNF) in California, with an actual rate of approximately $800 per patient per day.” Over 95% of LHH patients are covered by Medi-Cal that pays just $419 per day. But because LHH runs a 7-bed Acute Medical unit on its 780-bed campus, it can capture 50% of the difference between its actual costs and what Medi-Cal pays - another $190/day. Virtually all of the remainder is absorbed by the City; hence the pressure to cut costs and increase revenues.

One way to raise revenues is to keep LHH’s small Acute Medical and Acute Rehab units busy, as their reimbursement rates are several times higher than the $800/day LHH spends per resident.

In 2009, LHH Rehabilitation Chief Dr. Lisa Pascual, and then-CEO John Kanaley, conjured a “revenue enhancement” budget proposal. In exchange for an extra $836,000 in taxpayer funds annually, they promised to generate yearly revenues of $1.35 million. They wanted more staffing to transform the existing 6-bed Acute Rehab unit into the new building’s showcase - with 15 beds, a choice location, therapeutic pool and state-of-the-art fitness gym. Why were these costly enhancements needed in a safety-net hospital? Because they “will increase the demand for rehabilitation services,” they wrote. An “upsurge in acute rehabilitation admissions” would raise the average daily census from 1.57 patients to “a realistic goal” of 4 patients/day. The new facility, its trappings and fanfare, would draw new patients. It was a field of dreams, untrampled by market research like scoping out the competition, or asking potential patients what they wanted, and why they shunned LHH.

Three months after the rebranded LHH opened, the 15 mostly-empty Acute Rehab beds were cut to 7. By mid-2012 just 5 remained. The other 10 were converted to lower-paying but fillable Skilled Nursing beds. Despite sparkling amenities and frantic recruitment efforts, private pay and Medicare patients chose to go elsewhere – as before. It got worse. For 2013, the average daily census for Acute Rehab was 2.21 patients, in 2014 it fell to 1.23 and by mid-2015 it dropped to 0.89 patients per day. Rehab Director Pascual omitted this decline in her Annual Report to the Health Commission’s Joint Conference Committee on 9/8/15. Instead of a root cause analysis of the slump, she offered variants of patient recruitment strategies that hadn’t worked previously. The Commissioners didn’t probe, as if they didn’t want to know.

Another revenue tale was spun in 2010. The Medicine Department sought $950,000 in general funds for staffing to boost its Acute Medical census from “1.5 – 2.0 patients/day” to 5 patients per day, thereby generating $1.7million annually. Instead, patients vaporized. Signs of fluster appeared in 2012 when LHH brass lumped the Acute Medical and Acute Rehab censuses together under “Acute” to camouflage the minuscule number of patients each unit served. When honest reporting resumed in 2013, the average daily census fell to 1.1, then to 0.75 by 2014, and to 0.72 by mid-2015. On average, less than 1 patient per day has received treatment in the 7-bed Acute Medical unit over the past 18 months. Month after month, the dwindling numbers are presented; without explanation from Medical Director Dr. Colleen Riley, and without inquiries from Health Commissioners.

Yet, inquiries are due. The City’s SFOpenBook data base shows LHH spending on “Acute Care” exploding, despite its sagging census. LHH spent about $2.4 million in 2012-13, almost $3.4 million in 2013-14, then $4.1 million in 2014-15. Unfortunately, corresponding revenue data isn’t provided. Given the missteps and evasions by Laguna Honda executives, Health Commissioners should ask why a 73% rise in Acute Care spending accompanies a 48% reduction in service delivery.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

November 2015

London Breed’s Anti-Sunshine Litmus Test

Dr. Maria Rivero & Dr. Derek Kerr

For those who are driven to govern, transparency doesn’t come naturally. Nudging City governance out of the shadows often relies on open government advocates. For example, the 2013-14 Civil Grand Jury report, Ethics in the City – Promise, Practice or Pretense, recommended amending the Sunshine Ordinance to require that Supervisors’ business calendars be publicly disclosable. Since 1999, the Ordinance had required only the Mayor, City Attorney and department heads to disclose who they met, and where. Although the Jury found that “nearly all” Supervisors voluntarily provided their meeting calendars, some officials “failed to list the subject matter and the attendee’s names” making it difficult to track lobbying activities and influence peddling.

London Breed, who clenched the Board presidency in January 2015, has viewed requests for her calendars as intrusions. When sunshine activist Michael Petrelis requested them this April, he was initially told the “voluminous” records would take time to assemble. Instead of delivering the calendars, Breed’s legislative aide sent a startling e-mail: “Supervisor Breed has not maintained a calendar since February 1st, 2015. Per the charter rules, Supervisor Breed is not required to keep a calendar.”

Public interest in Breed’s engagements peaked this August when her name popped up in the FBI probe of political corruption that ensnared Senator Leland Yee among others. A local entrepreneur was quoted as saying he “pays Supervisor Breed with untraceable debit cards for clothing and trips in exchange for advantages on contracts.” Breed denied the allegation.

On June 16, 2015 the Supervisors amended the Sunshine Ordinance to require the disclosure of their daily appointment calendars - including meeting locations and attendees. Breed demurred, “I’m not necessarily a fan of this measure.” Surprisingly, the tough-talking Supervisor who confidently attends District 5 community gatherings cited “concerns about my personal safety” and “establishing a pattern of my whereabouts.” Plus, “it took my staff several days to separate my public and private calendar.” Breed made a motion to withhold the location of Supervisors’ meetings and to wait for the Department of Technology to organize their calendars. Her motion died for lack of a second. The Board voted 10-1 in favor of disclosing its calendars. Breed voiced the sole “No.” On July 7 the board finally, and unanimously, passed the amendment. The Mayor signed it into law on July 15, but Breed’s displeasure smoldered.

Though not a member of the Rules Committee (Avalos, Tang, Cohen), Breed materialized at the September 10 meeting “in place of Supervisor Cohen.” The agenda included the approval of a journalist and a lawyer applying for the Sunshine Ordinance Task Force (SOTF), the 11-member body that adjudicates sunshine complaints. Both applicants were nominated by the Society of Professional Journalists (SPJ) that is mandated 2 seats on the SOTF. Still working in the City, both nominees had recently moved to Oakland so they needed residency waivers from the Supervisors.

After Hoodline editor Eric Eldon gave his presentation, Breed launched a meandering interrogatory about “conflicts of interest” when journalists serve on the SOTF. Note: voters approved assigning 3 journalists to the SOTF: from the SPJ, New America Media, and local press. Breed wondered if Eldon’s “professional opinion” as a reporter who pursues City records, might conflict with “making the right decision.” Unappeased by Eldon’s ethical strategy for countering potential bias, Breed declared, “Let me be more specific; I have a different opinion about the calendar requests…there’s a thin line between public information and being nosey…I don’t think it’s appropriate for the public to know my whereabouts 24 hours a day.” Then, the litmus test: “Do you think that public officials should have to share their calendars if requested?” Since her question had been affirmatively and legally answered in July, it was deployed to render applicants into supplicants. Eldon maneuvered out of Breed’s trap by crafting thoughtful, ego-soothing responses, including, “I would listen to the advice of the City Attorney” and “I can’t say I’m decided on that.” Incidentally, Breed had been wrangling with the SOTF since June, when she was found in violation of the Sunshine Ordinance for dodging a hearing on her calendar hoarding.

The other SPJ nominee was Mark Rumold, an Electronic Frontier Foundation attorney who litigates transparency and surveillance issues in the National Security arena. After serving on the SOTF for 9 months, he had to resign upon moving to Oakland. He presented his credentials and goals in a straight-forward way, without fawning. Breed didn’t bother to ask him a single question, then groused; “I’m not completely familiar with Mr. Rumold…” Apparently, he hadn’t kowtowed for her blessing before the hearing. To show who’s boss, Breed “hesitantly” approved Rumold’s residency waiver.

All 3 Supervisors okayed the candidates, but Katy Tang’s mute passivity was a marked departure from her energetic obstruction of SPJ nominees in 2013-14. Joining a Board vendetta against the SOTF, Tang had applied her own litmus test: supplicants had to vow to abide by City Attorney opinions in sunshine disputes. She also imposed a “diversity” standard on SPJ candidates that she waived for City Hall shills. Press coverage set off a political imbroglio for Tang, and may explain why she ceded this year’s litmus test to London Breed.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital. They repeatedly exposed wrongdoing. Contact: DerekOnVanNess@aol.com

October 2015

Exodus From Laguna Honda Hospital

By Dr. Maria Rivero and Dr. Derek Kerr

In the year ending May 2015, 80 patients fled from Laguna Honda Hospital (LHH). These runaways, who were AWOL (Absent Without Official Leave) or left AMA (Against Medical Advice) comprised 23.7% of LHH’s reported “community discharges” – a record high. This exodus is rooted in the Health Department’s revamped Flow Project that flushes non-paying patients out of San Francisco General Hospital and into LHH.

Unlike the notorious 2004 Flow Project that generated an upsurge of violence and drug use at LHH, the current version relies on private rooms, electronic monitoring, additional activities, substance abuse counsellors and Psychologists to contain disruptive behaviors. Yet, in 2014 LHH reported 46 staff injuries from “resident aggression”, 12 of which required medical treatment. LHH deploys additional staff as “coaches” to monitor rowdy residents, and drug-sniffing dogs to curtail drug use and dealing. Cigarettes and nicotine vaporizers are prohibited. Just to be admitted, patients must sign an imposing Agreement that stipulates rules of conduct. Such restrictions, and the efforts required to dodge them, cramp the quality of life of some residents. Others simply don’t want to be at LHH. The unprecedented swell in elopements this year signals that the Flow Project and LHH’s containment policy are leaking.

Why patients flee and what happens to them matters. Risks of harm multiply for patients who run off or sign out before they are deemed ready for discharge. Beyond endangering themselves, those who exit while cognitively impaired also expose the hospital to potential liabilities. Elopements are disruptive, requiring hospital-wide “Code Green” alerts, burdensome paperwork, missing person reports, plus detailed searches by busy staff and Sheriff’s deputies. In May, LHH projected “a deficit of $780,000 in salary expenses” for 2014-15 “mainly due to the increased need for coaches…to facilitate patient flow”. By July, this deficit dropped to $190,000 following a $500,000 infusion of taxpayer funds. Further, neither Medi-Cal nor Medicare reimburse LHH for AWOL days, so those losses are absorbed by the City. Importantly, for an institution that values resident satisfaction, the rise in AWOL/AMA discharges signals rising dissatisfaction. There may be correctable lapses in patient care, staff training, or mismatches between resident needs and LHH’s offerings. The Health Commission should request – and make public, a thorough analysis of this exodus.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: watchdogs@westsideobserver.com

September 2015

Ethics Commission Still Napping

By Dr. Maria Rivero and Dr. Derek Kerr

Little has changed since the 2010-11 Civil Grand Jury labelled the Ethics Commission a “Sleeping Watchdog”.

On 6/29/15 the Ethics Commission approved a soporific and nebulous response to the 2014-15 Civil Grand Jury (CGJ) report; “San Francisco’s Whistleblower Protection Ordinance Is In Need of Change”. In a feat of equivocation, the Commissioners agreed that all 6 CGJ recommendations to enhance whistleblower protections “may be implemented”. Warning that the task would entail “heavy lifting” plus “the cooperation of at least 4 departments”, Executive Director John St. Croix vowed that Ethics “would endeavor to do this in 2016” – long after his August 2015 departure. Ethics’ Deputy Director, now Acting Executive Director, Jesse Mainardi – hired from the Sutton Law Firm – stayed mum on enhancing whistleblower rights.

Public comments by Westside Observer reporters Derek Kerr and Patrick Monette-Shaw noted the Commission’s failure to sustain any retaliation claims in 20 years, and the City’s coddling of retaliators despite millions of dollars paid out in settlements. A former CGJ Foreperson, Elena Schmid, warned that Ethics’ “vague” responses to the CGJ report dodged the specificity required by California Penal Code section 933.05. Friends of Ethics member Charles Marsteller suggested that Ethics appoint a “sub-committee of one” to work on revising the Whistleblower Ordinance. One City whistleblower declined to speak out as it would be “asking the foxes to redesign security around the hen-house”.

When Ethics Chair Paul Renne called upon the Commissioners for volunteers to revise the Whistleblower Ordinance, dead silence filled the chamber. Eventually, Commissioner Ben Hur uttered; “You’re putting all of us on the spot here.” The Commissioners then hurried to the next agenda item.

September 2015

Secrets and Neglect

Laguna Honda’s Patient Gift Fund

By Dr. Maria Rivero and Dr. Derek Kerr

Health Commissioners and Laguna Honda Hospital (LHH) executives hold monthly public meetings at the hospital to discuss LHH-specific issues. Few from the public bother to attend these Joint Conference Committee meetings as they conceal more than they reveal. Case in point; hiding changes to the Patient Gift Fund that provides amenities for the “pleasure, comfort and happiness” of LHH residents.

On 3/10/15, LHH Finance Chief, Chia Yu Ma, added this afterthought to her Gift Fund report: “Based on the Controller’s Office recommendation, we have been working … to slowly move our (Gift Fund) stocks from the Treasurer’s Office control to…Charles Schwab.” At LHH, such afterthoughts and mumbled asides warrant scrutiny. Turns out that Ma buried something about the $2.4 million Gift Fund, most of which is in donated stocks. A week before, the City Treasurer’s Office had advised her to sell the Gift Fund’s $1.3 million stock portfolio. After receiving the written “sell” recommendation on 4/3/15, Ma again withheld it from her 5/12/15 Gift Fund report. Also omitted was a $400,000 donation received weeks before from retired LHH physician Milka Rols.

These non-disclosures resembled those preceding the Gift Fund scandal of 2009-10. Briefly, the Gift Fund then held over $2 million, including stocks donated in the 1980s. Stocks were kept by the City Treasurer, an interest account was overseen by the Controller, while cash went for LHH patient activities. With the instalment of John Kanaley as CEO in 2004, then Mivic Hirose in 2009, Gift Fund policies were surreptitiously altered – in violation of the Administrative Code – to create an administrative slush fund. Pilfering and mismanagement depleted cash holdings to $185,000 in late 2009. Another $835,000 was frozen in stocks and $543,000 was locked in the interest account. This cash crunch triggered warnings that the Gift Fund was bankrupt. Patient activities like bus-trips were curtailed, yet impermissible expenses for staff perquisites surged.

Protests were ignored within LHH, but reported by KGO TV’s I-Team and The Westside Observer’s Patrick Monette-Shaw in 2010. The resulting furor forced the Controller to issue a Gift Fund audit on 11/22/10. LHH had to repay $350,000, stop misappropriations, issue quarterly reports, and restore the Gift Fund Management Committee. Unfortunately, the Controller dropped the promised follow-up audit to quell negative publicity. Fortunately, a $500,000 bequest from the Knight estate returned Gift Fund assets above $2 million in March 2013. Amidst bullying allegations in July 2013, Bill Frazier, Director of LHH’s Activity Therapy Department, was reassigned as Gift fund Program Director, a newly created post. The move also freed him from justifying cuts in patient activities due to misappropriations upstream.

Ma’s censored Joint Conference Committee presentations contained grains of truth. In a lashing 2010 audit, the Controller did urge LHH to “actively manage” Gift Fund stocks, but Ma said nothing about the 4-year delay, Schwab’s role, selling the stocks, or Rols’ $400,000 donation. Instead, CEO Mivic Hirose took center-stage at DPH headquarters to spin highlights before the full Health Commission, leaving crumbs for Ma to dispense at LHH. As in 2010, the WSO had to dig for answers.

A visit with Michelle Durgy, the Treasurer’s Chief Investment Officer since September 2010, revealed that her “tremendously understaffed” team began organizing the stocks in mid-2011. A collaboration with Merrill-Lynch collapsed, so SF discount broker Schwab was contracted to manage the holdings in July 2012. By May 2014, $660,000 in Gift Fund stocks had been quietly transferred to Schwab. According to the Administrative Code, the Treasurer is only authorized to sell or hold stocks, not trade them. Licensed brokers are better equipped to handle stocks. The Treasurer’s spokesperson, Stephanie Profitt, assured that so far, “there are no costs” and that Schwab “has no decision-making role in transactions.”

Records show that since May 2014, Bill Frazier’s patient advocacy and energetic tracking of Gift Fund assets got results. He lobbied the City Treasurer to 1) transfer all Gift Fund stocks to Schwab, 2) collect the dividends and interest held by Schwab, 3) check the status of all Gift Fund stocks, and 4) reconcile LHH’s records with Treasury logs. In typical e-mails, Frazier emphasized; “We want the dividends in order to enhance the lives of our residents” and “We want it all.”

Frazier and Treasury Investment Officer Hubert White powered through a mess of scattered, neglected stocks until the $1.3 million portfolio was consolidated under Schwab in January 2015. However, there was a $120,000 discrepancy between stock values reported by LHH and the Treasurer. Elisa Sullivan of the Controller’s Office explained that “the amount is not missing,” just spread among various stock transfer agents. But 185 shares in General Motors, Delphi, and Bethlehem Steel became worthless due to bankruptcies. The fact that LHH hadn’t received any statements about its 104 Delphi shares since 1999 didn’t raise alarms. In 2009, LHH lost track of 2241 shares in Sprint-Nextel. In 2012, they landed in the State’s Unclaimed Property Fund. When located two 2 years later, they had been sold for $17,736, which Frazier reclaimed. Another $14,099 had been stuck in a Schwab dividend account and was released to LHH in November 2014. In January 2015, LHH learned that 234 Chevron stock certificates worth $25,674 were lost – although dividends were coming in. Exxon certificates were also lost. Replacing them cost $915.

Despite these losses and the 4-year slog to sort out the Gift Fund portfolio, most of the stocks had appreciated in value. An analysis by Durgy’s team prompted the “sell” recommendation since the market had bubbled to all-time peak and a downturn was expected. Durgy explained that selling the 25 remaining stocks would cost $13 per transaction - merely $325. On 5/19/15 the full Health Commission approved the sale, without review before its LHH Joint Conference Committee. To date, stock sales have garnered $1,163,630, with more to come. Durgy banked the initial proceeds at 0.65% interest to generate $7,564 annually.

Chia Yu Ma’s Gift Fund reports concealed decades of neglect, uncovered during a long overdue clean-up. Nonetheless, selling the stocks was reasonable, given LHH’s inability to manage them, the Treasurer’s constraints, and the market outlook. And ethically, LHH shouldn’t hold shares in war profiteers like Halliburton, Boeingand G.E., polluters like Exxon, BP, and Chevron, and obesity purveyors like Coca-Cola. Still, the stock proceeds need tenacious monitoring, given the furtive practices of LHH executives.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

July/August 2015

When Sunshine Casts a Shadow

– David Lee’s Ballot Proposal

David E. Lee

By Dr. Maria Rivero and Dr. Derek Kerr

On 4/23/15, long-time Sunshine activists were surprised when “San Franciscans for Open Government 2015” filed a Ballot Initiative to amend the City’s Sunshine Ordinance. It calls for; 1) City public meetings to be live-streamed, 2) enabling the public to testify remotely with translation services, 3) time-certain agendas items if 50 citizens request them. The proposal is spearheaded by David E. Lee, whose political consultant Jim Ross helped craft the measure. Former Supervisor Fiona Ma, who attended the City Hall filing, said; “Too often, we just hear from the same people during meetings, and this will open that up.”

One day before, a supportive Chronicle article merely identified David E. Lee, who heads San Franciscans for Open Government, as “a political science instructor” at SF State University. But since 1993 Lee has also been Executive Director of the non-profit Chinese American Voters Education Committee (CAVEC) - the sponsor of this initiative. CAVEC’s mission is to register voters, provide polling services, research voting trends, and work with ethnic media. Its 4-person Board includes Lee and his wife Jing Lee, who is Vice-President. Its Chair is Adrianne Tong, the deputy City attorney assigned to Laguna Honda Hospital, and its Secretary is Sandy Close, Director of New America Media. The Lees own a State Farm Insurance business and a 4-unit rental building in the Richmond. Strangely omitted from the recent Chronicle piece was Lee’s controversial run for District 1 Supervisor in 2012.

In 2005 Mayor Newsom appointed Lee to the Recreation & Park Commission as it advanced a privatization agenda. Lee resigned in 2012 to run against Eric Mar for Supervisor in District 1, pointing to former Supervisor Carmen Chu as his role model. Lee got 11,019 votes or 38.6% to Mar’s 53.5%. In this costly clash, $90 was expended for each Lee vote. According to Ethics Commission data, Lee spent $320,589 in individual donations and public matching funds compared to Mar’s $360,100. The shocker was the cash tsunami from independent expenditure committees that spent $673,960 for Lee versus $164,625 for Mar. All told, 68% of the $994,549 supporting Lee’s campaign came from shadowy special interests compared to 31% of Mar’s $524,725. Most of Lee’s contributions came from real estate, construction, insurance, banking and corporate interests. Notable Lee backers included attorneys Jim Sutton and Jim Haas, tech investor Ron Conway, “broker” Mel Murphy, banker Dick Kovacevich, real estate magnate Doug Shorenstein, and philanthropists Nancy Bechtle, Dede Wilsey, and Roselyne Swig. In 2012, the Chronicle endorsed Lee, although his cause was “boosted by a sleazy independent expenditure campaign” funded by the SF Association of Realtors.

Lee’s stewardship of CAVEC has been problematic. CAVEC’s available IRS statements (Form 990) show years of operating deficits, and sharp declines in revenues and assets. Revenues in 2002 exceeded $475,000. In the 4 years between 2008 and 2011 they averaged $178,859, plunging to $82,677 in 2012 and $18,285 in 2013. Interestingly, CAVEC’s media and research expenses have increased since 2011, while voter registration and education outlays steadily dropped to $22,780 in 2013. According to the City’s Department of Elections, in the 4 years between May 2011 and May 2015, CAVEC registered only 64 San Francisco voters – 16 annually. We e-mailed CAVEC, asking for the numbers of non-City voters registered, but received no response.

Between 2008 and 2011, Lee’s salary at CAVEC averaged $90,211 annually (range $86,461 to $91,980). In October 2012, Friends of Ethics filed a complaint against Lee for failing to disclose this outside income while serving as a Rec & Park Commissioner. Later that month, UC Berkeley Prof. Ling-chi Wang and Henry Der, founding members of CAVEC and of Chinese for Affirmative Action, publicly denounced Lee’s exorbitant $91,980 salary that then comprised 55% of CAVEC expenses – despite its revenue shortfalls. They also challenged the role of Lee’s wife on CAVEC’s board, his exaggerated voter registration claims, the mingling of his business and CAVEC pursuits, plus the “behind the scenes” and “downtown and out-of-town” money pouring into his campaign. They asked “who will he be accountable to?” In 2013, Lee’s salary was cut to $46,828, though it remained CAVEC’s biggest line-item expense. Other Chinese-American activists say that CAVEC has been losing touch with the community, becoming more politically and finance-driven.

Despite Lee’s ties to business and moneyed interests, who already have influence at City Hall, he has previously served on the boards of the California First Amendment Coalition and the minority-based New America Media. Both promote public access to government activities. Plus, he has long advocated for immigrant participation in civic affairs. So Lee’s pushing this Sunshine measure makes sense.

In appeals for a “generous donation” Lee claims that his ballot proposal arose from “working with my students” and that “students don’t have the resources to fund a campaign.” However, the campaign’s kick-off at SF State’s Student Center on 5/14/15 barely drew a handful of students to collect 14,000 signatures by July 6th. It’s interesting that Lee would take on a ballot initiative with such sparse front-line support, and while CAVEC is caving financially. Next year, District 1 will need a new Supervisor. Will an appealing Sunshine measure enhance Lee’s political profile – and CAVEC’s viability?

Lee’s Sunshine amendment emphasizes that “professional activists and lobbyists are the only ones who can spend the time at City Hall to influence decisions” and that it will empower “working people, small business owners, students and caregivers who have set schedules.” There’s no mention of the costs and contract opportunities associated with the proposed technology. Tracking the funding for this ballot measure will show whether the “busy people” served will be the same donors who rallied behind him in 2012.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

June 2015

Laguna Honda’s Falling Star

By Dr. Maria Rivero and Dr. Derek Kerr

Mivic Hirose, CEO Laguna Honda Hospital

Abarely audible Mivic Hirose, CEO of Laguna Honda Hospital (LHH), duped the Health Commission on 9/9/14. She reported “fewer deficiencies” when the hospital’s Health Inspection rating plunged to a below average 2-stars. Three months before, Hirose had pledged “to boost Laguna Honda to 4 stars” in its upcoming inspection. Instead, she silenced the flubbed survey, and the resulting loss of LHH’s Overall 5-star Medicare status. At LHH only good news is amplified.

In 2009, the Centers for Medicare & Medicaid Services (Medicare) instituted a 5-star rating system, Nursing Home Compare, to evaluate nursing homes. Medicare awards 1 to 5 stars in 3 domains: Nursing Staffing, Quality Measures and Health Inspections, plus an Overall star rating based on the others. Medicare warns that; “All of these data are reported by the nursing homes themselves. Nursing home inspectors…don’t formally check it to ensure accuracy…The information should be interpreted cautiously…along with information from the Long Term Care Ombudsman’s Office, the State Survey Agency, or other sources.” Nursing homes like LHH flaunt their stars, without noting Medicare’s caveat.

Moreover, Medicare does not report violations of California nursing home standards, State citations and fines, or complaints filed with State agencies. That’s because licensing requirements for State Medicaid programs (MediCal in California) differ from those mandated by Medicare. Only federal-level violations affect star ratings. For example, in 2013 LHH received 30 State deficiencies but only 19 were recorded in Medicare’s federal ratings. Similarly, three $1,000 State fines for patient injuries in 2011 and 2012 didn’t impact LHH’s Medicare star ratings. See www.nursinghomeguide.org for this data from California Advocates for Nursing Home Reform.

The star-rating system provides an incentive for nursing homes to improve their care. It also induces some to gain stars without earning them. As per an 8/24/14 New York Times article, Medicare Star Ratings Allow Nursing Homes to Game the System, facilities plagued by serious deficiencies can garner 5-star ratings. Since higher scores attract clients, revenue, and prestige, some facilities inflate their scores.

In 2009, just 35% of nursing homes were granted 4 or 5 stars overall. By 2013, it rose to 51% - including LHH. An overall rating of 3 stars is considered average, but by 2014 the average score for US facilities was 3.46 stars. When a majority of facilities are above average, the system is unreliable. As a result, Medicare instituted reforms. One-third of US nursing homes lost Overall stars this year, with more to follow in 2016.

Laguna Honda’s star-quest started in 2010, when its Overall rating was 2 stars – below average. The next year, in the new building, 3 stars. A 4th star was captured in 2012. CEO Hirose, who collected $290, 819 in pay plus benefits, pushed until LHH wrangled a 5th star in 2013, only to lose it in 2014. To detect how LHH zoomed up, and out, of the top tier in 4 years, we examined its Nursing Staffing, Quality Measures, and Health Inspection scores.

Nursing Staffing

Higher nursing staffing correlates with better patient care. Each year, facilities report their numbers of nurses per resident. LHH has always received 5-stars for staffing, thereby getting an extra Overall star. Since the 1997 departure of former Nursing Director Virginia Leishman, licensed nurses have been pulled from direct patient care to administration, while certified nursing assistants were replaced by less-qualified health aides. Nonetheless, LHH remains better-staffed than most nursing homes, with lower turnover, thanks to the City’s good wages and benefits. In other words, nothing could improve LHH’s staffing ratings. To prevent fraud, Medicare will now verify staffing levels by checking payroll data.

Quality Measures

These are indicators of quality care such as the percent of patients with injury falls, bedsores, or severe pain. Only 11 aspects of care are assessed, so their scope isn’t comprehensive. Further, such measures are suspect because they are self-reported by nursing homes. To wit, State inspectors faulted LHH for failing to report a patient fight that caused an injury last year. Besides such under-reporting, adverse events can be minimized by LHH’s Quality Management Department before they are transmitted to Medicare. A former LHH analyst, who requested anonymity, told us, “Laguna administrators, charged with filing self-reports that should have been forthcoming, accurate and even regretful, were indeed adept at gaming the system.” By clasping 5-stars for self-reported Quality Measures in 2013, LHH was granted an extra Overall star.

Massaging Quality Measures is widespread. In 2009, 37% of Nursing Homes held 4-5 star ratings on Quality Measures. By 2014, a preposterous 80% were all-stars, including LHH which had jumped from 3 to 5 stars. This surge, partly due to changes in its calculations, forced Medicare to recalibrate. So, two-thirds of nursing homes dropped in their quality ratings, and 30% lost Overall stars. This year, Medicare audits will inhibit deceptive reporting.

Health Inspections

This is the backbone of the ratings system, the only domain scored independently by State inspectors. Since surveys occur almost annually, nursing homes anticipate them. At LHH, preparatory “mock inspections” and clean-ups aim to minimize deficiency findings. During surveys, LHH’s “Command Center” tracks inspectors’ activities, then orders quick fixes to undiscovered violations. From 2010 through 2012, inspectors found relatively few federal deficiencies. Since Health Inspection ratings are derived from the 3 most recent surveys, LHH rose to “above average” in 2012. This, plus its jump in Quality Measures, contributed to its trumpeted 5th Overall star in 2013.

Untrumpeted was LHH’s fall to 4 Overall stars after surveyors found 19 federal deficiencies in 2013, followed by 12 deficiencies in 2014. The 2014 lapses included: failure to monitor an amputee’s phantom-limb pain for 9 weeks; failure to adjust a Care Plan for a patient with rapidly worsening dementia; not monitoring the harmful side-effects of anti-psychotic medications; keeping spoiled/outdated food in refrigerators; not washing hands after handling soiled equipment; speaking “a non-English language” around patients; causing a resident to soil his diaper by delaying 30 minutes to answer his calls; over-filling the stomach of a tube-fed patient and causing pneumonia; and failing to report patient-to-patient physical abuse to the State, and not knowing that such reports are legally required.

Although these deficiencies were considered minor, causing “minimal harm” and affecting “few” residents, they exceeded the averages for California and US nursing homes. Therefore, LHH’s 2014 Health Inspection score plunged “below average” – to 2 stars. That triggered LHH’s fall from 5 to 4 stars overall. It could have been worse. LHH’s Fire Safety Inspection found 7 deficiencies. Since such lapses aren’t logged in the star-rating system, LHH got a good deal in being down-graded to “above average”.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

May 2015

Requiem for an Old Friend

By Dr. Maria Rivero and Dr. Derek Kerr

When Eugene Jeandeville “Gene” died at Laguna Honda Hospital (LHH) last December, a part of old San Francisco passed with him. He was 85. Gene had come of age in the 1940s within a pack of kids whose friendships spanned 70 years

Some 17 years before, a fire blackened Gene’s kitchen. Then he fell and broke his arm. Unable to care for himself, LHH took him in. Bereft of immediate family and decision-making capacity, he was assigned a Public Guardian to manage his affairs. He got around with a walker or wheelchair and loved field trips to ball games, casinos and race tracks. His requests to “go home” subsided, but he always wanted to “see the guys.” For years, Gene’s old friends; Larry the retired school teacher, Art the former insurance executive and cartoonist, and later Bob the Laguna Honda volunteer, brought gifts, news and memories on birthdays and holidays.

Gene’s death, after a fall during a movie outing, left them mystified. Another old friend gone, then evasive responses to their inquiries. Though grateful for LHH’s good-hearted care – despite the sticky-fingers that appropriated their gifts, the conversational drift from English to Tagalog and “no lounge” for volunteers – they felt something was being hushed-up. They asked The Westside Observer to peer through the fog.

Growing Up in the City

Born in 1930, Gene was raised by his Mom in Glen Park - 64 Chenery Street near Fairmont Elementary School. Mother was a nurse. Gene said his longshoreman father died during the 1934 Waterfront Strike. It was a time when folks were more inclined toward community than to self. A sharing economy emerged from the privations of the Depression and the War, marked by bartering of ration stamps and produce from Victory Gardens. Few owned cars, so people walked everywhere or hopped streetcars for a nickel. Kids met up to trudge to school. In a world without television and computers, playground directors handed out balls and bats for after-school activities until it was time to go home. Gene was a star playground athlete, the type of kid who made fast friends despite a developmental disability.

Pearl Harbor brought black-outs, when mothers covered windows as families huddled by candlelight until the sirens fell silent. Soldiers packed the Presidio and sailors flooded the streets when the fleet sailed in. Some fathers and big brothers went away, never to return. One afternoon, all the sirens went off, horns blared, and grown-ups cheered “It’s over.” Some cried. Hopes soared when the United Nations Peace Conference met at the War Memorial Opera House. Then came Korea.

After Balboa High School, Gene was drafted. Chaffing under Fort Ord’s “damned sergeants,” he’d go AWOL - in his khakis - to hang out with his startled buddies. They’d congregate in Art’s Chenery Street basement, dubbed Club 9, to talk sports, play cards, spin records, and drink beer. Instead of liberating Korea, Gene was medically discharged. Through adulthood he lived with his mother, eventually moving to Capistrano Avenue. Though he toiled at the Post Office, odd jobs and janitorial gigs, his passion was playing the ponies - sorting out the odds on the horses, jockeys, trainers and the tracks. His basement was crammed with racing forms. Gene made a lot of money at Bay Meadows and Golden Gate Fields. Lost a lot too. His hardships doubled when his mother succumbed to Alzheimer’s. So his buddies helped out, even arranging home care services. They kept in touch and re-united annually at Club 9.

The Investigation

In September 2014, LHH’s Activity Therapy Department began a transition from “provider” to “coordinator” of services that would augment patient bus-trips by 35% - without increased staffing. Days before Thanksgiving, Gene went on an outing as had a hundred times before. A band of patients supervised by 3 staffers took in a movie. While waiting for an elevator, Gene’s wheelchair rolled backwards down a ramp and fell over. He struck his head. Someone had forgotten to lock the wheelchair brakes, or perhaps Gene unlocked them. He was conscious when paramedics bandaged his bleeding head and rushed him to Seton Hospital.

On 11/30/14 Seton notified Larry about the accident but withheld details pending an “investigation”. Upon returning to LHH, Gene’s condition deteriorated and he was transferred to UCSF. He developed pneumonia, caused in part by a swallowing disorder. After several days, he returned to LHH.

On 12/4/14 someone called Larry: “Gene wasn’t eating and we should visit ASAP.” Gene was weaker and bedbound. Then, Gene’s Public Guardian reported he had died on 12/10/14, cause of death undisclosed pending investigation. His body went to Cypress Lawn for burial on 1/7/15. When his friends went to pay their respects, Gene’s grave was unmarked. Another unanswered question.

We brought $21 to the Department of Public Health’s Office of Vital Records for a copy of his Death Certificate. It wasn’t ready. A week later, same story. Turns out his case had been referred to the City Medical Examiner, something that’s done whenever someone dies of unnatural causes. This referral argued against a cover-up. However, hospitals must also report injury-falls to the State, and we knew LHH had a history of down-playing adverse events. We notified the State Licensing and Certification Division on 1/20/15, just to be sure. An investigation was underway. As required, LHH had reported the accident.

Gene’s Public Guardian was notified about the missing gravestone. Records show that Gene had pre-paid $3,400 for a Cypress Lawn plot in 1998. In 2005, the Public Guardian collected $760,000 from the sale of Gene’s house at 178 Capistrano. assuring that his funeral expenses would be paid, including an engraved headstone.

Our first call to the Medical Examiner went unanswered. On 1/15/15 we were told that releasing Gene’s Death Certificate would take at least 3 months. Toxicology tests had to be completed, medical records reviewed, reports typed up and approved. Plus, there was a back-log of 800 cases, some dating back to 2012, with only 2 pathologists to perform autopsies. On 2/21/15 San Francisco hired a new Medical Examiner to slash the backlog. A month later we were told it could take up to 6 months.

On Saturday 2/7/15, LHH notified Larry about Gene’s Memorial Service 3 days later. Larry was the only old friend able to attend on short notice. A chaplain officiated, there were flowers and a photo-collage of Gene and 2 other deceased residents. Larry was very impressed by the Service and the staff’s heart-felt words of remembrance. However, why Eugene Jeandeville died on 12/10/14 remains “under investigation.”

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital Contact: DerekOnVanNess@aol.com

Acknowledgement: Thanks to Larry, Art Ness, Bob Coffey and Ken Sproul for inspiration & guidance.

April 2015

City Attorney’s Whistleblower Battle Lands in Court

By Dr. Maria Rivero and Dr. Derek Kerr

No City agency admits to retaliating against whistleblowers. Dennis Herrera insists that firing his former Chief Trial Deputy, Joanne Hoeper, “was in the works long before she claimed…that she had uncovered a kickback scheme in the City Attorney’s Office.” Hoeper charges Herrera with “after-the-fact fabrications” to justify her removal for exposing shady sewer replacement deals. Legally, she must show that whistleblowing was a contributing factor in her firing. Herrera must provide clear and convincing evidence that she was sacked for cause. Their battle entered Superior Court on 1/7/15.

After publicly praising Hoeper’s aggressive fraud litigation in 2003, Herrera says he began doubting her in 2005 for escalating expenses and underestimating liabilities. He focuses on 2 out of hundreds of cases handled by Hoeper’s team. In the $7 million Lopez settlement against the School District, the judge rebuked City attorneys who “tenaciously fought each stage of litigation and caused delay throughout discovery, which substantially increased the fees and costs.” Hoeper responds that the litigation strategy was directed by the client and that Herrera’s “failure to properly staff the case…seriously hampered the defense.” In the $27 million Dominguez verdict for a child killed by a Muni truck, Herrera claims Hoeper called it a “no liability case.” This she flatly denies, as she recommended a multi-million dollar settlement.

Herrera asserts that in 2005 several Magistrate Judges complained about Hoeper’s “intransigence in settlement discussions and her failure to evaluate the cost-effectiveness of litigation.” Hoeper explains that there were important policy reasons to oppose payouts in frivolous lawsuits against police officers. Further, Herrera persuaded the magistrates that her approach was sound – and told her to keep it up. In 2006, an unwritten cost-analysis reportedly showed that Hoeper’s team “frequently outspent liability estimates for its cases.” Hoeper retorts that, “the managing attorneys on the Trial Team” will affirm that she controlled litigation costs and pioneered cost-saving measures for which Herrera “held up the Trial Team as an example of best practices.” To Hoeper, who served until 2012, Herrera’s excavating issues from 2005-6 while ignoring “dozens of cases…in which the City faced tens of millions of dollars of potential liability but won” misrepresents her career and “proves that he terminated her for reasons other than her job performance.”

Herrera states he then supervised Hoeper more closely – but without using Annual Performance Appraisals. These require a dialogue and written employee responses to supervisors’ critiques. Herrera’s spokesperson, Matt Dorsey, told the Observer that executives like Hoeper aren’t subject to formal annual appraisals. Instead, in 2007, her supervisor Therese Stewart wrote a private appraisal – solely for Herrera. It lauded Hoeper: “She gives 100% of herself to the Office…tremendously dedicated. She is very loyal. She is extremely confident in herself…and that…serves us well in litigation.” In counterpoint: “Cultivates a pugilistic style of litigating, tending to polarize deputies and opposing lawyers, making settlement more difficult and possibly resulting in underestimation of…risk and exposure.” Hoeper maintains she was never told her performance was unsatisfactory. Rather, Herrera repeatedly assured her “that he valued her work and wanted her to continue…as Chief Trial Attorney.”

Though certified as “very loyal”, Herrera claims that, “With her subordinates, Ms. Hoeper openly disparaged the input of Mr. Herrera and Ms. Stewart, encouraging an ‘us versus them’ mentality.” One alleged taboo was calling her Trial Team “the real lawyers” and the Executive Team “the front office.” Hoeper calls such allegations “completely false”, noting how she lobbied Herrera to “address the morale issues…that plagued the City Attorney’s Office” by recognizing deputies who did a good job - “something the City Attorney was not in the habit of doing.”

In 2008, Herrera restructured the Trial Team, thereby reducing Hoeper’s duties. Herrera ties this decision to Hoeper’s “rebuffing” his guidance and “stoking divisions.” However, Hoeper recalls that Herrera assured his staff that the change reflected shifting priorities, rather than performance problems. Despite what Herrera announced publicly, she worried that the reorganization related to her work, as she was undergoing chemotherapy. So she asked him directly and quotes his reply, “You’re invaluable to the Office. Do not misunderstand what I’m doing. It has nothing to do with your job performance.”

Contending that he remained “dissatisfied with Ms. Hoeper’s performance,” Herrera reportedly sought to replace her in late 2010 with a partner from Keker & Van Nest, the law firm now defending him. Over the next year, surreptitiously, other attorneys were reportedly approached, but none wanted or fit the job. Ironically, in May 2011, Hoeper herself was recruited for a high-level State position. Since Herrera was running for Mayor, she asked about her future if he won. She recalls that Herrera pronounced her position secure and encouraged her to stay. So she declined the State job offer. She concludes that Herrera either lied while secretly devising her ouster, or axed her for exposing the sewer scheme.

In late 2011, Herrera’s Executive Team met without Ms. Hoeper to prepare a report titled: Possible Leadership Changes 2012. It’s undated, except for 12/21/11 scribbled in a corner. The actual date is important because Hoeper’s sewer investigation also began in late December 2011. The 2-page memo is entirely redacted save 2 sentences: “Put Danny in charge of Trial Team (for 2 years)” and “Maybe you could get Gascon to hire Jo to be Chief of Civil Litigation for the DA’s Office.” Matt Dorsey told us that the date on this memo, and on Hoeper’s 2007 performance review, were added after they were written “to reflect the documents’ actual dates.” Notably, “Danny” was not given Hoeper’s job as proposed.

It took more than 18 months of “actively searching” to find Hoeper’s successor. Supposedly, “the only factor holding up the process was finding the right person.” Strangely, the search was covert – with no job announcements. For Hoeper, “It defies belief that the City Attorney was unable to find highly qualified candidates…who would not leap at the opportunity to be the City’s Chief Trial Deputy.” Yet, just 2 months after speaking out, Hoeper was out. She describes a blitz to install her replacement - a surprised deputy “who had been in an office just down the hall from (Herrera) during most of his fruitless search.” Still, Herrera denies retaliation as he “made the decision to terminate Ms. Hoeper’s employment before she launched the investigation.” As for the 18 month gap between his “decision” and her removal, Herrera admits, “… the poor judgment she exercised during that investigation only served to confirm (his) decision to terminate her employment.”

Once again, taxpayers are footing the bill for a plausible retaliation claim. John Keker’s firm, a Herrera campaign donor, is collecting $850/hour to defend him per a contract: “Expected to exceed $50,000.” Ethical concerns are rising alongside legal fees. Keker also received a conflict waiver to represent Herrera, while representing developers who are suing the City. This conflict has churned Herrera’s staff, per an anonymous tipster. A Keker partner, Benedict Hur, chairs our Ethics Commission that unfailingly denies whistleblower retaliation claims. Herrera’s Office is one of 4 venues for whistleblower complaints, along with the Ethics Commission, the Controller’s Office, and the DA’s Office. Because these agencies reflexively shield City departments, Jo Hoeper had to seek redress elsewhere.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

February 2015

Outside Job:

OUSTING LAGUNA HONDA’S C.O.O.

By Dr. Maria Rivero and Dr. Derek Kerr

The June 2014 ouster of Laguna Honda Hospital’s (LHH) Chief Operating Officer Mike Llewellyn so rattled the Department of Public Health (DPH) that the scandal was buried. As detailed in the September Westside Observer, Llewellyn was chummy with Rachel Decker, owner of the DPH-favored painting contractor William Decker Company. Cordial rapport between City officials and contractors often enhances public services — unless favoritism ensues.

In October 2013, the Controller’s Whistleblower Program was investigating complaints about the “over-utilization” of a DPH painting contractor. Controller’s records show Decker’s dominance over the other 6 DPH painting contractors during Llewellyn’s tenure. In the 5 fiscal years between 2009 and 2014, Decker pocketed $783,211, or 41% of DPH’s painting expenditures — almost twice as much as its nearest competitor, RAS Engineering. The bottom 3 contractors, M&A, Monticelli, and Arco took home 6.5%, 2.4% and 0% of the pie, respectively.

DPH records confirm the disparity. Between 11/1/10 and 10/31/13, Decker was granted a Blanket Purchase Order (BPO) authorizing $400,000 in DPH contracts. The other 6 DPH painting contactors were granted BPO’s ranging from $100,000 to $250,000, and totaling $1.2 million. Just 17 months into its 3-year BPO, Decker had already collected $396,786 – over 99% of its allocation. However, the other 6 firms garnered just $117,000 or 10% of the funds available to them. Decker’s closest rival, M&A Painting, had received 24% of its $250,000 allocation. Three of the painting contractors got nothing. No wonder somebody complained.

Perhaps Decker Co. did excellent work at lower rates than their 6 competitors. Still, the relationship between Mike Llewellyn and Rachel Decker should have sparked concerns, especially after DPH Director Barbara Garcia put Llewellyn in charge of all DPH facilities in late 2011. With such authority over contracts, there are many ways to indulge preferred parties.

According to the City’s Office of Contract Administration, “For general services, competitive bids are not required under $10,000.” Such small jobs need not be advertised because City departments have “complete discretion over the vendor selection process.” Records show that in the first 3 years of Llewellyn’s tenure as COO, from November 2009 through November 2012, Laguna Honda processed 54 invoices from Decker Co. totaling $448,375. Of these, 47 were for jobs costing less than $10,000. They included a $1,010 contract to paint “Mike’s safe” and a $2,210 deal listed as “Mike’s wood table refinishing.” These small contracts, awarded under Llewellyn’s watchful eye, brought in $228,667 – 51% of Decker’s Laguna Honda revenues over 3 years.

Though disapproved, big jobs can evade competitive bidding rules if broken down into multiple small jobs, each costing under $10,000. On 11/14/12 Decker Co. submitted 3 invoices at $9,996 each for 3 near-identical LHH window projects. Had this window project been treated as a single $29,988 contract it would have required competitive bidding and approval by the Office of Contract Administration.

A favored contractor could be told in advance about upcoming DPH projects, or informed about competing bids and proposals. Hefty contracts can be won with tiny under-bids. On 1/25/11 Decker Co. secured a painting job at SFGH for $30,250. Its closest competitor, RAS Engineering, had bid $30,500. When the bid results were sent to Llewellyn’s office, he notified his staff; “I will take care of that.”

Or, a painting company could be steered to work as a subcontractor under a bigger DPH contractor. The DPH pays the larger firm that then pays its painting sub-contactor. On 4/1/12 Turner Construction paid Decker’s RMD Enterprise $11,585 for 4 windows. The following month, Llewellyn received a proposal from Rossi Builders, another DPH construction contractor. On 10/22/12 Llewellyn sent Rossi’s proposal to Decker’s Office manager, who cheerfully responded, “Thank You Mike! Hope you are well!” In May 2013, Rossi Builders hired Decker as their painting sub-contractor.

When funds aren’t available, money can be pulled from other pots. For example, LHH bosses could get SFGH funds to pay for their jobs and vice versa. Given its enormous budget and major hospital rebuild projects, the DPH has many money streams that can be siphoned when needed. For example, on 9/30/10, a $3,130 Decker Purchase Order was revised because LHH’s CFO wanted to switch from “operating funds” to “project funds” to pay for maintenance services. Similarly, creative accounting may explain why Decker’s BPO balance increased from $3,214 to $14,269 between 3/1/12 and 10/17/13.

When DPH Director Barbara Garcia wanted to “expedite” the renovation of DPH Clinics in October 2013, Decker’s BPO balance was depleted, despite the mysterious boost to $14,269. Nevertheless, on 10/25/13 Rachel Decker submitted estimates to “John Lee A-Hole” to refurbish 4 Clinics for $235,062. Technically, any bids above $14,269 should have been null and void. Further, Decker’s DPH contract expired a week later and wasn’t renewed until 2/1/14. She was then granted a 3-year, $1.8 million BPO to be shared with 3 other painting contractors. On 5/2/14, the Health Commission approved new DPH maintenance jobs by the Decker Co. Therefore, Decker maintained business ties with the DPH right up to Llewellyn’s expulsion on 6/20/14.

The marginalized DPH painting contractors to whom we spoke had no comment. However, the Controller’s 2013-14 Whistleblower Program Report mentions a manager who was fired for being “romantically involved with the owner of a contractor while…in a position of authority over contracted work.” LHH insiders went along to preserve their livelihoods. Outsiders forced Barbara Garcia to address top-level misconduct that Laguna Honda honchos tolerated for years.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

December 2014

City Attorney’s Sewer Stand-Off Needs Sunshine

By Dr. Maria Rivero and Dr. Derek Kerr

Joanne Hoeper

City Attorney Dennis Herrera is facing a whistleblower retaliation lawsuit from his former Chief Trial Attorney, Joanne Hoeper. After the September Westside Observer went to press, Herrera rebutted Hoeper’s claim that she was reassigned and fired for exposing a multi-million dollar scheme to replace private sewers - at taxpayer expense. Now Hoeper has refuted Herrera’s rebuttal, thus escalating the conflicting pre-litigation narratives.

Dennis Herrera

Pursuing a 2011 FBI tip about shady sewer claims, Hoeper had Herrera’s blessing - until her digging implicated the heads of his Claims Bureau; Michael Haase and Matthew Rothschild. In May 2012, Hoeper told Herrera where the investigation was headed. One month later, the Claims Bureau ceased paying for private sewers, and stopped issuing no-bid contracts. Yet, Hoeper kept delving into thousands of claims that had already been paid.

In July 2012, months before launching his re-election campaign, Herrera directed his Chief Deputy, Therese Stewart, to wrap up Hoeper’s investigation. Undaunted, Hoeper delivered a 27-page “Draft Report of Investigation” (Report) on 7/18/12. Shortly thereafter, Hoeper says Herrera green-lighted her continued probing.

Hoeper briefed Stewart about a plumbing company that had filed 84 claims for $850,000, most of which had been inflated by $3,000. These $3,000 premiums reportedly ended after a citizen complained to Haase about suspected fraud and threatened to call the press. Moreover, that plumbing company abruptly stopped submitting claims – right after Hoeper alerted the Claims Bureau about the FBI’s warning. This sequence of events led Hoeper to believe that insiders “had colluded with the plumbing company to submit fraudulent and inflated claims and that Haase had then likely warned the plumbing company and tried to cover their tracks.” She then surmised that the $3,000 overpayments served as kickbacks to the Claims Bureau. Whoa!

The next morning, Herrera replaced her as Chief Trial Attorney. In August 2012, he transferred her to the District Attorney’s Office but continued her $202,000/year salary. Hoeper states that Herrera then covered up her fraud allegations and failed to seek an independent audit of the Claims Bureau. In November 2013, two days after being re-elected, Herrera told Hoeper that she would be terminated. In January 2014, he kept his word.

A contrasting narrative emerges from a 35-page rebuttal by lawyers representing Herrera’s Office. Herrera argues that Hoeper is not a whistleblower and that she was fired for “sub-par performance” related to her “pugilistic style” and “refusal to be a team player” – not in reprisal for her investigation. Admittedly, he “refused to allow Ms. Hoeper to continue her scorched-earth investigation against Mr. Haase…because she had uncovered no facts to justify further investigation.”

To receive whistleblower protections, Hoeper must show reasonable cause to believe that waste, fraud, abuse or wrongdoing occurred. Herrera rejects her whistleblower status by declaring that her own investigation “turned up no evidence of a fraudulent scheme.” He quotes this snippet from her Report: “The preliminary work we have done so far has not revealed the sort of obvious patterns that could be expected if there was a scheme to steer public funds to particular plumbing contractors in return for kickbacks.” Another excerpt emphasizes that Haase was regarded as “a conscientious, hard-working and competent employee.”

Hoeper responds that Herrera selectively “misrepresents” her findings and is “deliberately misleading…in order to cover up (his) true motivations for terminating Ms. Hoeper.” She challenges Herrera to release her full Report as it is “replete with detailed examples of wrongdoing by the Claims Bureau.” She adds that Herrera’s quote about Haase was lifted from a section titled Additional Investigation is Needed that segued into “specific findings that Haase had engaged in unlawful acts.”

While Hoeper viewed the City Attorney’s handling of sewer claims as unjustified, Herrera asserts that since 1982, it’s been City policy to accept liability for residential sewers damaged by City trees. Contradicting Hoeper’s claim that SF was unique in paying for tree-damaged sewers, Herrera identifies other California cities that also reimburse homeowners for sewer repairs. Hoeper retorts that, “Under the San Francisco charter only the Board of Supervisors may set policy and only through written ordinances and resolutions.” Unlike the cities cited by Herrera, our Supervisors didn’t set a sewer policy. Therefore, Hoeper maintains that the Claims Bureau had unilaterally and illegally implemented the costly sewer policy – then abolished it after her revelations.

While Hoeper was suspicious that Haase usually knew in advance when sewer claims would be submitted and instantly approved them, Herrera contends that she didn’t understand that sewer claims were first investigated by DPW inspectors. In 2011, some 60 such sewer claims were reportedly rejected by DPW. Once approved by DPW, homeowners hired plumbers to do the work and filed a claim with the Claims Bureau. So, the Claims Bureau quickly approved sewer claims because they had already been screened by DPW. Herrera denies that homeowner complaints about sewer companies were buried, citing measures initiated by Haase to deter fraudulent claims. Herrera alleges that Hoeper “ignored or dismissed” these points and was “jumping to conclusions.”

Hoeper responds that her investigators “documented many instances in which there were no roots in the sewers” - despite the DPW inspections and approvals. Plus, she was not allowed to examine the work of DPW. She describes Haase as: misleading when interviewed, concealing citizen complaints, taking 16 discounted Giants tickets from a contractor for whom he initiated a $12,000 City sewer deal, and approving no-bid jobs for a contractor who employed his son. Herrera is portrayed as: “willing to make untrue statements about these easily provable facts in order to bolster his false narrative…”

Unfortunately, the City Attorney’s Office twice declined to release Hoeper’s investigative Report, citing attorney work-product and other confidentiality exemptions. So, we are bedeviled by contrasting interpretations of a crucial but secret document. Herrera does admit that; “The sewer investigation prompted the City to rethink this practice” and that “outdated policies were reformed and allegations against City employees were investigated and put to rest.” Hoeper’s attorney, Stephen Murphy, told us, “Jo’s investigation was shut down and her career abruptly ended only after she had uncovered huge, illegal outlays of taxpayer funds. There’s no question she was a whistleblower.”

Next, we’ll explore Herrera’s claim that Hoeper’s firing “was in the works long before she claimed…she had uncovered a kick-back scheme”

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Dept. Public Health. Contact: DerekOnVanNess@aol.com

November 2014

Sweetheart Deals Revealed in Construction of Laguna Honda Rebuild

Behind the Perp Walk

Favoritism in contracts with DPH is revealed in records obtained by the Westside Observer under the Sunshine ordinance

The mysterious June 20 expulsion of Laguna Honda Hospital (LHH) Chief Operating Officer (COO) Mike Llewellyn has long roots. According to 780 pages of Llewellyn e-mails, his termination seems connected to DPH painting contractor William Decker Company/RMD Enterprise (Decker). The firm, now owned by the late founder’s daughter, Rachel M. Decker, was being investigated by the Office of Labor Standards Enforcement (OLSE) in 2011 after employees complained that Decker wasn’t paying fair wages.

OLSE enforces prevailing wage requirements in City contracts. Unlike most other City whistleblower programs, the OLSE gets results. It substantiates 65% of complaints and recovers lost wages from 90% of the companies pursued. By combating wage theft, OLSE protects vulnerable workers from exploitation, reduces their reliance on social services, and allows honest employers to compete fairly.

On 4/26/11, the OSLE contacted Llewellyn seeking information about Decker’s work at LHH and he promised to provide the records. Though he knew that OLSE was investigating Decker, Llewellyn blind cc’d his response directly to Rachel Decker. Unknown to OLSE, Llewellyn and Decker were buddies. For example, on 5/13/11 Decker sent him a FAX detailing $2,324 in repairs to her 2004 Silverado. Llewellyn responded ”Wow.” On 7/26/11 Llewellyn sent Decker an internal bulletin issued to DPH finance officers. Two months later he sent her an LHH financial report listing fund balances available for 8 vendors, without sending it to the others.

We believe the second complaint is about LLewelyn but the first one on the page may be about Llewelyn as well

Over the next 8 months, OLSE struggled to round up records of Decker’s work, particularly a $220,210 restoration job at DPH headquarters that included a $13,000 renovation of Health Director Barbara Garcia’s Office. A dozen exchanges occurred between OLSE and Llewellyn and his deputies; Diana Kenyon, LHH Facilities Manager, and John Lee, Buildings & Grounds Supervisor. Wherever OLSE probed, Llewellyn was made aware. When OLSE obtained Decker’s employee sign-in sheets, John Lee forwarded them to Llewellyn noting, ”thought you want to know.” Lee even blind cc’d Llewellyn on his responses to trivial inquiries about Decker.

There were other signs of Llewellyn’s pervasive interest in Decker’s affairs. On 1/12/12, OLSE asked Diana Kenyon about work done by Decker before a contract was signed. Kenyon forwarded the inquiry to Llewellyn. Staying in the background, Llewellyn coached Kenyon, ”Here is your reply” and wrote out a generic message, adding, ”CC me on the reply.” Kenyon dutifully sent her ghost-written response. But OSLE wanted specific dates, noting a ”legal discrepancy” raised by the City Attorney. Frustrated by OSLE’s persistence, Kenyon e-mailed Llewellyn, ”I don’t know what tree she is barking up now.” Six minutes later, Llewellyn forwarded the e-mail train to Rachel Decker.

On 2/7/12 Llewellyn sent his deputy John Lee a quote for a window project submitted by the Decker Co. with the message, ”Here’s your quote, let’s get it processed” – and blind cc’d Rachel Decker. One week later, Llewellyn’s deputy, Diana Kenyon, notified 3 painting contractors, including the Decker Co., of a bid walk-through. When the walk-through was rescheduled, Kenyon notified the 3 bidders. Llewellyn then forwarded that notice to Rachel Decker to make sure she got it personally. When the walk-through was delayed, Llewellyn instructed Kenyon when to reschedule the due-date for bids, then cc’d Decker – not the others.

After receiving assurances from Llewellyn that Decker’s jobs were ”won through competitive bidding,” the OSLE reached a Settlement Agreement with Decker on 2/21/12. She did not admit to any wrongdoing but agreed to pay $28,000, including $19,704 in back wages to 6 employees and $8,296 in penalties for violating the City’s prevailing wage law.

One week after the OLSE Settlement, Decker was awarded a $44,725 contract to paint DPH Accounting Offices at 101 Grove Street. However, the Accounting Office lacked the funds to cover Decker’s bid. So the DPH transferred funds from a Mental Health facilities account to pay for the job. After a lengthy set of maneuvers and approvals, to which Llewellyn was a party, funding was granted on 3/19/12. One minute later, Llewellyn forwarded the trail of Accounting Office e-mails to Rachel Decker with the emoticon, ”Funded :)”. However, it took another 3 weeks to get Decker’s newly-funded contract released. One minute after getting the OK, Llewellyn forwarded that series of Accounting e-mails to Decker, writing, ”Now you can schedule.”

On 4/18/12, Llewellyn’s Assistant, Jessica Kennedy, was trying to tie a name to a relationship. In an e-mail to Llewellyn’s deputy, John Lee, Kennedy copied an invoice with Rachel Decker’s name on it and wrote, Mystery solved. Name on invoice.” Lee rushed Kennedy’s discovery to Llewellyn, adding; ”OOOOOOOOPPPPS, I told her that she is not the one. I said Rachael is married with kids and that she is a real bitch and that you would not be with her.”

Nevertheless, when Llewellyn received a State notice about swine flu on 8/3/12, he sent it to Rachel Decker. She responded; ”Thank you for the notification. I’m afraid for my little love.” Two minutes later he replied, ”I know, I get these alerts, it’s personal to me now.”

It’s intriguing that we found no personal messages in 2013 and 2014. Perhaps Decker was busy, having delivered a baby boy in Walnut Creek on 7/18/13. Perhaps communication was inhibited by the Controller’s 2013 investigation of favoritism complaints by DPH painting contractors. Or, the DPH may have withheld some.

Besides Llewellyn’s close associates, other LHH staffers knew of the Llewellyn-Decker relationship and the potential for partiality. Given the hospital’s repression of dissent, insiders stood mum as Llewellyn painted himself into a corner. Next month, we’ll explore why outsiders exposed the rot at the top of Laguna Honda Hospital.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

October 2014

City Hall Watchdogs

Clogged Sewers Erupt In Whistleblower
Retaliation Claim at City Attorney's Office

By Dr. Maria Rivero and Dr. Derek Kerr

Joanne Hoeper

It’s hard to ignore a call from the FBI. In December 2011, Joanne Hoeper, City Attorney Dennis Herrera’s Chief Trial Deputy, got that call. Homeowners were complaining about a handful of plumbing firms that solicited them to replace sewer lines – at City expense – because they were supposedly clogged by City-owned trees. However, their sewers were working fine. In some cases, there were no trees in sight.

A 20-year veteran of the City Attorney’s Office, Hoeper launched an investigation. Unhappily, it led directly into Herrera’s inner circle. Seven months later, in July 2012, her investigation was quashed, she was pulled from her post, then banished to the District Attorney’s Office for 17 months. On January 7, 2014, after turning 60, she was terminated. While acknowledging publicly that “Whistleblowers do not fare well in this world,” Hoeper felt unable to “live with myself if I didn’t speak up.” So she filed a whistleblower retaliation claim with the Controller’s Office this June seeking re-instatement, lost wages and other damages. True to form, the Controller referred the claim to the implicated agency – the City Attorney’s Office.

Acting on Herrera’s behalf to avoid a conflict of interest, the Santa Clara County Counsel assessed and rejected Hoeper’s claim on July 17, 2014, partly because it “was not presented within six months after the event.” Herrera instantly fired off a Press Release accusing Hoeper of knowing that her “baseless allegations were time-barred” thereby demonstrating “the vindictiveness underlying her claim.”

No word about an independent investigation. Hoeper’s attorney, Stephen Murphy, told us “The City’s response to our claim is unnecessarily hostile; the defense that the claim was untimely is also meritless because it’s a whistleblower retaliation claim. We’re preparing a lawsuit.”

A Hastings Law School graduate, Hoeper started out with Morrison & Foerster, a corporate law firm based in San Francisco. Though rising to become a partner, she was drawn to community service. Her pro bono services focused on civil rights abuses in Guatemala and Argentina. In 1994 she joined the City Attorney’s Office under Louise Renne. After Dennis Herrera was elected City Attorney in 2001, Hoeper rose to become his Chief Trial Attorney. In 2003 she was recognized as one of the “Top 50 Women Litigators in California” for prosecuting a Fortune 500 company that defrauded $4.4 million from the Unified School District. Herrera lauded her in a 2003 Press Release; “Jo Hoeper’s legal skills, energy and dedication have made an enormous contribution to the public integrity of our City, while exacting an enormous price from those who’ve sought to cheat and defraud San Francisco taxpayers.”

Hoeper prosecuted other high-profile frauds and served as an advisor to City officials. She was named a “Northern California Super Lawyer” in 2005, 2006, 2007 and 2008, based on peer nominations and third-party evaluations of professional achievement – an honor accorded to 5% of California lawyers. She became one of Herrera’s closest advisers, a member of his 4-person Executive Team, until her 2012 investigation.

Two years later, Herrera’s Press Release disparaged her as “a disgruntled former employee, who clearly has some axes to grind against some of her former colleagues, who is expressly seeking a payout…by making reckless and unsupported charges of serious crimes in a bid to shake-down taxpayers.” What happened?

Upon receiving the FBI tip about fraudulent sewer claims, Hoeper alerted the City Attorney’s Claims Bureau that handles claims against the City. The Claims Bureau Chief, Matthew Rothschild, is a long-time political operative and fund-raiser for the Democratic County Central Committee and the Alice B. Toklas LGBT Democratic Club – and an asset for Herrera’s political campaigns. The Claims Bureau Assistant Chief, Michael Haase, reportedly assured her that dubious claims were weeded out and that there was no cause for further inquiry. Given the seriousness of the allegations and a pattern of anomalies in the claims, Hoeper also contacted the Chief of Investigations, George Cothran, who provided an investigator. Years before, as an investigative journalist, Cothran had critiqued Rothschild’s bid for a Municipal Court judgeship. (SF Weekly; 2/28/1996)

According to her claim, Hoeper informed Herrera that from 2002-2011, the City had paid out $19 million for several thousand claims, mostly to replace private sewers allegedly damaged by City tree roots. Oddly, the Claims Bureau paid the higher cost of replacing rather than simply repairing the sewers. Importantly, no other California City paid to replace private sewers clogged by roots. The consensus of arborists and sewer engineers was that tree roots do not cause sewer breaks. Rather, roots infiltrate already broken sewer lines. Further, the repair of private sewers is the legal responsibility of property owners – not the City.

After persuading homeowners that the City would restore their aging, supposedly damaged sewers to modern standards, plumbing company salesmen filled out the claims, had the owners sign them, and submitted them to the Claims Bureau. Within days, Hoeper noted, the City paid the property owners who then paid the contractors. If, after a claim was submitted, a property owner balked at signing the form required by the City to issue a check, the Claims Bureau would open a new claim in the name of the plumbing company – and pay it directly. Hoeper also alleges that the Claims Bureau awarded these companies no-bid contracts to fix City-owned sewers despite City rules requiring a bidding process. She concluded that millions in taxpayer dollars enhanced private properties while furnishing several plumbing firms most of their profits.

Next month, we’ll explore how Hoeper’s long-praised pursuit of fraud - when aimed inward - became a threat to the City Attorney’s Office and its Claims Bureau.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed DPH wrongdoing. Contact: DerekOnVanNess@aol.com or www.SFWhistleblowers.com

September 2014

Perp-Walk At Laguna Honda

By Dr. Maria Rivero and Dr. Derek Kerr

Mike Llewellyn

Mivic Hirose

A flurry of anxious-joyful messages from Laguna Honda Hospital (LHH) insiders pinged our cell-phones last month. On Friday May 30th, Laguna Honda’s Chief Operating Officer (COO) Mike Llewellyn was escorted out of his office by Human Resources officials and CEO Mivic Hirose. We were told that his computer hard-drive was seized – perhaps by “the Feds”, and that the institutional police perp-walked him out of the building. Sources who insist on anonymity for fear of retaliation whispered that the computers of his deputies were also seized. However, these two were temporarily assigned his duties. A week later, LHH blocked Llewellyn’s access to every door of the buildings he had overseen. Another Laguna Honda scandal?

Our e-mail to Llewellyn on 6/4/14 received an automatic “out of office for an unspecified length of time” response. We contacted CEO Hirose, whose representative confirmed that Llewellyn had been placed on Administrative Leave on 6/2/14, but denied a raid by the Feds. We then requested any notice sent by Hirose to her staff about Llewellyn’s departure. LHH replied “no responsive records” and wouldn’t provide answers about a personnel matter. Tellingly, LHH referred further inquiries to the Department of Public Health information Officer. Taking damage-control out of the hands of LHH’s bumbling CEO is a sure sign of an erupting scandal.

What about the computer seizures? Did Llewellyn resign? Was he fired? Who replaced him? To these questions, the DPH responded on 6/11/14, “any current personnel actions would be confidential.” At the same time, the FBI denied any interventions at LHH. Finally on 6/20/14, Human Resources confirmed that was "Llewellyn's last day of employment,˝ while the DPH divulged that CEO Hirose was “currently assuming the COO responsibilities.” Oddly, there were no documents announcing this important development until 6/25/14.

Although LHH is abuzz with gossip and rumors about Llewellyn’s downfall, informants tell us that their department managers have been tight-lipped, evasive, misleading or feigning ignorance. They seem scared. Since the ouster of the pugnacious Communications Director Marc Slavin in June 2013, and the mysterious leave of his successor, Judith Klain, a former Project Homeless Connect director, hospital communications have deteriorated under Hirose. For example, Laguna Honda’s website stagnates with bogus photos, portraits of long-gone residents and staff, and Community Events from 2011-12. The hospital’s Grapevine newsletter is gone. Even the patient newsletter, The Voice, is silent. Inarticulate in person, furtive and prone to flee when questioned by journalists, Hirose’s public statements are scripted confections. Questions about her management are viewed as threats. That’s why l’affaire Llewellyn is clamped under a cone of silence. It prompts questions about how much Hirose knew, and when, and if she didn’t know - why not?

Absent a coherent explanation for the departure of Laguna’s COO, rumors are running amok. Repeatedly however, we hear that contract bids had been leaked to a favored contractor beginning in 2010. In October 2013, the Controller’s Office investigated complaints about contracting procedures at SFGH and LHH. As of 6/16/14, however, “no restrictions have been imposed on vendors doing business at Laguna Honda” per Deputy Controller Monique Zmuda. Llewellyn’s forced resignation on 6/20/14 may be a first step.

Subordinates who describe Llewellyn as a bully, devious, and arrogant view his downfall as Karma. Still, it’s an ignominious finale for Laguna’s #2 official who earned $173,742 in 2012-13. Llewellyn emerged from the bowels of SFGH where he had toiled as an undistinguished but bossy engineer since 1991. He reached the pinnacle of his SFGH career as Maintenance Supervisor in 2006. In 2008, he was hauled into LHH as Facilities Director by a then-struggling CEO, John Kanaley, and former Health Director Mitch Katz, who wanted to stuff LHH with SFGH loyalists.

Katz had previously dispatched Kanaley, another lackluster SFGH engineer, to “kick some ass” during Laguna Honda’s revolt against the 2004 Flow Project. Predictably, CEO Kanaley found himself over his head, then felled by a stress-related heart attack in March 2009 at age 51. Katz then fingered an obeisant Mivic Hirose, an LHH Nursing Director with the requisite SFGH pedigree, to fill Kanaley’s boots. That would enable Katz to plant another SFGH acolyte - with Kanaley’s Big Daddy demeanor – within Laguna Honda’s inner circle.

In November 2009, an under-qualified Mike Llewellyn snagged the COO position “because Mitch Katz said so” according to former LHH managers. The job qualifications were reportedly shrunk to fit Llewellyn’s abilities, despite the misgivings of Selection Committee members. With Hirose’s OK, Llewellyn replaced former COO Gayling Gee, who had been forced out for protesting the closure of LHH’s Adult Day Health Care program. Before Llewellyn was installed, Hirose and Katz temporarily foisted SFGH’s clueless COO upon Laguna Honda. That fellow brashly proclaimed a “Soda Free Summer at Laguna Honda” – a paternalism that sparked outrage and an unprecedented rejection by the Residents’ Council.

Intolerant of managers who questioned his decisions, Katz boosted obsequious ones regardless of their capabilities -or ethics. That’s why John Kanaley replaced Larry Funk as CEO, and why Mivic Hirose supplanted Mary Louise Fleming as Director of Nursing in late 2004. Hirose’s servile adulation of Katz was the key to the CEO office after Kanaley’s demise, but she lacked his overbearing presence. By flanking Hirose with Mike Llewellyn as COO and Marc Slavin as Communications Director, Katz had the centurions to quell opposition to his Flow Project and cronyism.

Management turmoil at Laguna Honda since the 2004 Flow Project is related to the replacement of competent managers with apparatchiks. Llewellyn’s implosion exposes the fault-lines under Laguna Honda’s occupation - and Hirose’s tenure.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

July 2014

“Integrating” Obamacare at the DPH

By Dr. Maria Rivero and Dr. Derek Kerr

The Department of Pubic Health (DPH), exhorted by favored contractor Health Management Associates (HMA), is using Obamacare to transform itself into a conglomerate via “integration.”

Records show that HMA promotes “integration” by breaking down “micro-cultures that have their own vision and goals.” These “need to be taken on by leadership and held accountable as a component of a unified approach to care…” HMA sees no room for organizational ecosystems and no pitfalls with mergers. “Integration” is HMA’s panacea.

This dream of “seamless integration” flopped in 1999 when the DPH set up its “Community Health Network” to entice privately-insured patients into its safety-net system. Similarly, the 2004 Flow Project imploded after San Francisco General Hospital (SFGH) tossed younger, troubled and sometimes violent patients among the frail elderly at Laguna Honda Hospital (LHH). A 4-year take-over of LHH finances by the SFGH Finance Office fizzled in 2009. Another dud was Laguna Honda’s multi-million dollar Acute Rehabilitation Unit. Designed to attract 15 insured SFGH patients – each for $4,527/day - it struggles to serve two per day because eligible patients choose to go elsewhere. Nevertheless, “integration” is prescribed for cost overruns throughout the DPH.

SFGH, LHH and 14 City Clinics all spend more than they earn. Therefore, they rely on City taxpayer subsidies. At the center of fiscal hemorrhaging is SFGH whose operating costs comprise “more than 50% of DPH’s expenses” per the Controller’s Office. Historically, SFGH has lost millions due to sloppy billing practices. HMA now finds that busy SFGH specialty clinics like Dermatology and Psychiatry collect no revenue as they “find it too complicated to complete professional billing.” The Emergency Department is grid-locked by 10 “classic examples of dysfunction,” including a dozen Nurse Practitioners “with very poor per hour productivity.” SFGH now wants an extra 288 full-time positions costing $77 million, but “without new patient volumes to support these requests” says HMA. Such practices threaten DPH’s “survivability” under Obamacare, as explained in May’s Westside Observer.

Tighter fiscal accountability is not enough. The way out according to HMA, is to get bigger – and to “integrate.” The DPH patient census must increase from 57,000 to 85,000 in the next 5 years. Clinic doctors must increase their patient loads from 826 to 1350, even though patient satisfaction scores sink to 35%, and half the Clinics are already packed. To grow the Network, DPH must “pursue and secure managed care contracts” with Kaiser, HealthNet and Blue Shield, though none had materialized as of late 2013. For Laguna Honda, the plan is to increase “specialty services,” perhaps kidney dialysis. To manage all this, the DPH will “expedite leadership hiring” into a new layer of bureaucracy. A slew of consulting contracts will be issued, more staff will be hired and more technology purchased. According to the Mayor’s Budget Proposal for 2013-14, allocations for SFGH will rise by $225 million plus $17 million for LHH.

HMA admits that all this growth and integration “will be reducing the number of face-to-face encounters with patients,” adding that staff “must convince (patients) that changes are for them.” HMA’s “Communication Plan” also aims to “generate a groundswell of DPH staff support.” Its effectiveness will be gauged by staff Satisfaction Surveys, designed to measure “employee engagement” with the integration agenda. Unions will be persuaded that job changes are “better than layoffs.”

“Integration” struck Laguna Honda a decade ago when top LHH executives were replaced by managers bred at SFGH, after a staff revolt against the 2004 Flow Project. The next step, per HMA, is to merge Laguna Honda’s license with SFGH. Then, SFGH can pour chaos and costs into Laguna Honda without resistance. In fact, a “Joint Hospital Executive Council” is set to “facilitate integration” and “client flow.” HMA emphasizes that Laguna Honda’s “pressing needs are the integration of Rehabilitation and Psychiatry services with SFGH.” Amazingly, HMA admits that a “unique population feature” of SFGH is a “high incidence of behavioral issues.” No problem; “Moving the patients from your Behavioral Health Skilled Nursing Facility to Laguna Honda is a significant improvement from a reimbursement perspective.”

Reimbursement means that SFGH can charge the average patient $6,716/day until their illness is cured. Then payment stops. When patients cannot be quickly discharged home or to a nursing facility, they occupy “unpaid beds.” There’s a shortage of nursing home beds in the City. Since LHH charges an average of $968/day, there’s economic pressure to unload non-paying SFGH patients into LHH regardless of whether they benefit from the transfer.

One HMA report declares that: “Admission and continued stay at LHH is predicated on ongoing rehabilitation and restorative care; LHH not intended as an option for permanent housing.” In other words, long-term care is out. Paradoxically, an HMA marketing analysis envisions: “Laguna Honda will become another tool in market penetration…if seniors believe that access to Laguna Honda and other long-term care programs are assured…” There’s a problem. To increase flow from SFGH, Laguna Honda is cutting patient lengths of stay by 12% to accommodate an extra 140 referrals this year. So, the DPH is looking to “subcontract to private long-term care partners.”

Although LHH was rebuilt as a sanctuary for “Old Friends,” it’s becoming a colony for younger “hard to place” and non-paying SFGH patients. Elders in need of long-term care are burdens in the corporatized DPH marketplace. Ironically, Obamacare promotes patient choice, but Laguna Honda will only be a choice for patients referred by SFGH for short-term care.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

June 2014

Obamacare Meets DPH

By Dr. Maria Rivero & Dr. Derek Kerr

The Department of Public Health (DPH), the City’s leviathan with 6,138 full-time positions and a $1.93 billion budget, is mating with the Affordable Care Act (ACA, Obamacare), the largest healthcare coverage program since Medicare and Medicaid in 1965. The strains and spawn of this coupling are depicted in a March 2014 Controller’s Office report titled Summary of Health Reform Readiness.

Enacted by Congress in 2010 and implemented this year, the ACA will provide health insurance for some 30 million Americans - and billions of public dollars for the commercial insurance industry. Reimbursement to hospitals, nursing homes, home care and hospice agencies will drop by $716 billion over 10 years. Instead of a single-payer system like Medicare, the ACA promises more-for-less in a corporate marketplace. While expanding MediCal coverage, the ACA mandates that individuals buy health insurance or pay tax penalties, provides subsidies to insurers, and requires businesses to cover their employees.

In order to control costs, Obamacare uses a “capitation system”: a fixed sum of money is provided for the care of each patient, regardless of the frequency or intensity of services. Currently, reimbursement is largely “fee for service” whereby payment is made for each service provided, with little incentive to reduce costs. Importantly, insured patients can choose where they want to receive their health care, thereby introducing competition.

As of January 2014, 56,000 of 84,000 uninsured San Franciscans have signed up. The big challenge for the DPH is to persuade these newly insured persons to choose DPH instead of private or non-profit providers. To do this, we are told that DPH must transform itself from the “provider of last resort” to a “provider of choice.” If patients opt to get care elsewhere, the DPH will lose money. Another challenge is to stem losses from serving a safety-net population with multiple medical and psycho-social ailments, once fee-for-service payments stop. To do this, DPH must recruit many more healthy and therefore low-cost patients. Also, it must better manage the rest - like the 5% who account for 50% of urgent/emergent care costs at San Francisco General Hospital (SFGH).

San Francisco anticipated Obamacare with its 2006 Health Care Security Ordinance that made 4,200 employers set aside $1.9 billion to cover health care expenses for 265,000 workers. And since 2007, Healthy San Francisco, a health care access program, has covered 116,000 persons who didn’t qualify for insurance programs. Despite these exploits, and its sizable resources, the DPH has outsourced expertise to adapt to Obamacare. Health Management Associates (HMA), a for-profit Michigan-based corporation, is getting $2.5 million to tutor DPH managers. We reviewed 615 pages of original HMA reports upon which the Controller’s 51 page Summary is based.

HMA principals have been embedded in DPH policy circles since being hired to salvage the notorious “Flow Project” of 2004. HMA advised against a 2006 Ballot Initiative aimed at preventing violent patients from being dumped into Laguna Honda Hospital (LHH). Asked to reform Laguna Honda’s medical services model, they recommended subordinating LHH under SFGH’s license. HMA previously collected some $700,000 as DPH consultants, and then paid then-DPH Director Mitch Katz $30,000 to work as an HMA consultant. No such cozy arrangement currently exists between HMA and DPH Director Barbara Garcia.

As in 2004, HMA and DPH want “a fully integrated delivery system” and “culture change” and this time, Obamacare is the excuse. Accordingly, in October 2013, DPH organized its San Francisco Health Network to enroll more people, speed patient flow from SFGH to LHH, rein in costs and become a provider of choice. As in 2004, this integration is largely driven by San Francisco General’s operating costs, which gobble up one-third of DPH’s annual General Fund subsidy, and more than 50% of DPH’s expenses. HMA warns: “SFGH’s ability to manage costs is imperative to the overall financial sustainability of the Network.” SFGH is too big to fail.

There’s more. Although DPH is considered a revenue-generating enterprise fund, it has run a deficit for years. And under Obamacare, DPH projects losing $131 million or 16% of its State and Federal safety-net dollars over the next 5 years. While revenues from the MediCal expansion may partially offset this loss, DPH’s operating budget is expected to rise by 8% next year. To stay afloat, DPH would need 50% more than the $337 million General Fund bail-out provided in 2012-13. That’s “an unsustainable scenario” per the Controller’s Report. Such alarming projections could be used to prop up SFGH at the expense of long-term care for elders – as we will explore next month.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

May 2014

Sinking Sources

The Controller's Whistleblower Program

By Dr. Maria Rivero & Dr. Derek Kerr

In 2003, voters funded the Controller's Whistleblower Program (WBP), expecting that it would engage whistleblowers to root out fraud, waste and abuse. In response to criticism for shutting out whistleblowers, the WBP's 2012-13 Annual Report laid it out; "The Whistleblower Program does not act as an advocate for complainants in their disputes with city departments…"

Unfortunately, reporting fraud invariably provokes "disputes" – and denials. And how do investigators tell whether tips are solid or figments of disputes? They check with implicated departments. If whistleblower claims are interpreted as "disputes" unworthy of engagement, the WBP risks acting as an advocate for respondents.

While shunning whistleblowers because "the program must conduct its investigations confidentially," the WBP closely collaborates with targeted City departments. Most complaints are referred back to them for investigation. Even in rare instances when the WBP independently conducts an investigation, department heads are fully apprised in a Confidential Memorandum that warns: "The information in this memorandum may not be discussed with or released to members of the public. "But the public does not retaliate; department managers do. Nothing in these memos reminds recipients that retaliation is prohibited. Although distributing copies of these memos is forbidden, the information they contain is shared with other managers.

The public is notified of substantiated complaints in the WBP's quarterly reports. However, complainants are told little more than their case is Closed– a slight that the 2010-11 Civil Grand Jury called "simply not welcoming or user friendly." Ominously, the WBP's 2012-13 Report withheld the number of retaliation claims filed with the Ethics Commission, after having reported 17 cases last year. Omitting retaliation claims makes it easier to ignore that none has ever been sustained.

The Annual Report also announced an "updated" online Complaint Form. The form is now so demanding that it repels tips. No complaint can be submitted without checking off: "I certify that all of the statements made in this complaint are true, complete and correct to the best of my knowledge. I understand that…the Controller may require that persons…swear to the truth of their statements by taking an oath administered by the Controller…under penalty of perjury"... Oblivious to whistleblower fears and their limited access to evidence, the WBP presumes they are scammers. Dozens of potential sources will be turned off by this bristling language.

Compare this hectoring with the way our Police Department (SFPD) engages tipsters. The preamble to the SFPD's Anonymous Tip Line states: "Crime prevention cannot be achieved by the police alone. Professional law enforcement officers must work hand-in-hand with the public…we depend heavily on your assistance…tip lines are provided for your use and convenience." Using this Tip Line is a breeze. To foster communication, there's a field for Investigative units…to text back and forth with the tipster. The SFPD also offers an Online Reporting System that requires more detailed entries. But unlike the Controller's Office, the SFPD doesn't force sources to swear they aren't liars before accepting their tips. Although false reports to the police can have serious consequences, the SFPD just welcomes tips without the fire and brimstone.

Why is the WBP complaint process so adversarial compared to the SFPD's, if both were set up to uncover wrongdoing? Well, complaints to the Controller point to government misconduct whereas tips to the Police report public misconduct. When tips about government wrongdoing are unwelcome, whistleblowers are deterred. And it works. Complaints to the WBP have fallen below 300 for the first time since 2006.

This decline prompted WBP Director, Tonia Lediju, to agree to a Complainant Satisfaction Survey at the 11/21/13 meeting of the Citizens' General Obligation Bond Oversight Committee (CGOBOC). Also announced was the launch of a Fraud Hotline Webinar Series to review best practices in the field. The one-sidedness of these teleconferences was revealed when a webinar lecturer opined about Satisfaction Surveys for hotline users, "Why don't you ask the prisoners why they don't like the Sheriff's treatment?" Programs that view whistleblowers as disgruntled losers should expect their tips to sink.

Tips sent to the Whistleblower Program have fallen from 465 to 291 in the past 5 years. WBP Manager Steve Flaherty examined external events, but was "unable to determine any causality…" Perhaps the Program should look within, at how it treats whistleblowers.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

April 2014

Good-Bye Old Friends Laguna Honda's Changing Census

The largest generation in US history – the Baby Boomers – began turning 65 in 2011. According to the 2010 census, 110,000 (13.7%) of San Francisco's 805,000 residents were seniors. That number is expected to double over the next 20 years. Importantly, poverty rates for persons over 65 exceed the City average, and most will eventually need supportive services.

Although women comprise 49.3% of the City's residents, the majority of our seniors are women. As they age, women increasingly outnumber their male peers. In San Francisco, there were 63,000 women over age 65 compared to 48,000 men. Of these, 22,000 lived alone, twice the number of solo males. Among those 85 and older, women outnumber men by 2 to 1.

These demographics explain why, for decades, the majority of Laguna Honda Hospital residents have been elderly - and female. Although LHH served more young patients than other nursing homes, caring for elderly, disabled San Franciscans had long been its core mission. Accordingly, "Old Friends" became the emotional theme of the 1999 Proposition A campaign to rebuild the hospital. At the time, hospital records show that two-thirds of LHH residents were over 65, 52% were over 75 years of age – and 56% were women.

That changed abruptly with the notorious Flow Project of 2004-05. Laguna Honda was repurposed as a repository for non-paying SFGH patients, as well as a way-station in the Care not Cash "housing continuum". Suddenly, the Department of Public Health (DPH) introduced a new paradigm – the City's "neediest" were those who needed "psycho-social rehabilitation". Admissions from San Francisco General Hospital (SFGH) surged from 54% to 73%, flooding LHH with "hard-to-place" patients. For the first time in memory, women - and elders over 75 - became minorities at LHH. The percent of female residents plunged from 53% to 47% in 2 years.

The new population included younger, able-bodied men with aggressive behaviors and substance abuse problems that endangered others and required specialized services. They needed a highly-structured, policed environment, while LHH's elderly, physically disabled residents fared best in a home-like setting with more autonomy.

Although Mayor Gavin Newsom was forced to abort the Flow Project in 2005, the hospital's gender and age balance didn't return to its prior levels. Before the new building opened in December 2010, a revised Flow Project was launched.

For 2013, LHH reported that only 41% of the patients served were women – a record low. Notably, patients aged 65 or older are now a minority – an unprecedented 47%. Despite LHH's reporting inconsistencies and fudged data, this table outlines the demographic shifts;

*In 2013, LHH counted 1191 patients served during one year, instead of current inpatients.

Under CEO Mivic Hirose, and DPH Director Barbara Garcia, the new Flow Project favors transfers from SFGH, so other hospitals find it harder to place patients at Laguna Honda. Lifelong San Franciscans are being shipped to out-of-County nursing homes. Since SFGH serves a much lower percentage of elders than the 13.7% living in the City, the new LHH will likely serve fewer elders and women.

The infirmities of old age, including poverty, persist. The number of City nursing home beds has decreased. The DPH's own 2012 "Community Health Status Assessment" warns that; "…the population over age 75 will increase from 7% to 11% by 2030. The projected growth in San Francisco's aging population has implications on the need for more long-term care options…"

No matter. As Patrick Monette-Shaw reported in the June 2013 Westside Observer, LHH is bringing in 45 patients from San Francisco General's Mental Health Rehabilitation Facility. And in August 2013, LHH quietly deleted a long-standing safety measure from its Medical Staff Bylaws: 24-hour Sheriff's security services are no longer required when patients with a police-hold are admitted.

Given the dramatic drop in elders and women served by Laguna Honda, what happens to "Old Friends" who can no longer care for themselves? Where do they go? Who checks whether the care they receive elsewhere is comparable to what the new $585 million Laguna Honda provides?

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

March 2014

FEAR and FAILINGS at LAGUNA HONDA

Employee morale is a key driver of quality of care in hospitals. In April 2010, one year into the tenure of CEO Mivic Hirose, Laguna Honda Hospital (LHH) commissioned an Employee Satisfaction Survey. The results were dismal. Out of 1,350 surveys distributed, only 258 were returned. A response rate of 19% indicates apathy, mistrust, or fear of management reprisals.

One month before that survey, City employees had been rocked by mass layoff notices. Few LHH staffers were willing to convey criticism when their livelihoods were threatened. Having scrambled through administrative shake-ups, mission changes and altered plans, many felt unsettled before the December 2010 move into the new building.

The survey asked a series of questions to which staff could respond "Excellent", "Good", "Fair" or "Poor". Excellent and Good indicate satisfactory, while Fair and Poor show dissatisfaction.

Although 70% of responding staff recommended LHH for patient care, only 49% recommended working there. Just 46% were satisfied overall. Notably, a majority were dissatisfied with LHH Administration, their Supervisors, and with the hospital's response to job stress.

Not surprisingly, this Employee Satisfaction Survey, obtained via a public records request, was neither made public nor presented to the Health Commission. No remedial plan was announced and no follow-up survey was conducted. LHH did not renew its contract with the surveyor.

However, in July 2013, LHH hired the market research firm Corey, Canapary & Galanis (CC&G) to conduct a follow-up survey. In his contract proposal, VP Jon Canapary slyly promised, "We respond to the accountability and scrutiny public agencies must operate under with real-world solutions." CEO Hirose values spin, and for $11,200 can expect something more than straight data analysis. Unlike Laguna Honda's prior survey contractors, CC&G doesn't specialize in healthcare surveys. It does, however, have political polling experience, having assisted in the "Willie Brown for Mayor" campaign. Its motto is; "Ask the right questions, and you get the real answer."

Four years after its first Employee Satisfaction Survey, LHH has had enough time to perk up staff morale. Layoff threats no longer depress hospital workers. They've had 3 years to settle into the new facility. With these situational changes, plus new, savvy surveyors who "ask the right questions," satisfaction scores are bound to improve – regardless of who's in charge.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital. Contact: DerekOnVanNess@aol.com

Dr. Maria Rivero & Dr. Derek Kerr

BLOWING OFF WHISTLEBLOWERS:
THE ETHICS COMMISSION

The scandal encircling the Georgia State Ethics Commission is a wake-up call for San Francisco*. Two top Ethics investigators were removed after inspecting Governor Nathan Deal's campaign finances. Ethics staffers were told to alter documents about the case, and met retaliation when they refused. Investigating wrongdoing can be as perilous as reporting it. Dodging tips about governmental wrongdoing can extend careers for staff and Commissioners alike.

Our own Ethics Commission (Ethics, EC) has steadfastly deterred and dismissed whistleblower complaints. Whatever triage system Ethics devised to manage its work-load, whistleblower tips moldered under the pile. Since 2004, Ethics Regulations have been serially amended to reduce risks and burdens for staff — by raising barriers for complainants.

One example is the handling of formal and informal complaints. Starting in 2006, Ethics decided to accept formal complaints only — "in writing and submitted on a form specifically provided by the Commission staff." That's posted in their How to File a Complaint guidelines. Further, formal complaints must identify "the provision(s) of law allegedly violated." Few tipsters have this legal knowledge. All other complaints, whether delivered in person, by phone, letter or e-mail are declared informal. And, we are warned, Ethics has "no obligation…to process or review informal complaints." They can be tossed. Even if complaints do reach the Factual Investigation stage, prospects are dim. There's no requirement to interview complainants — the gold standard for investigations. Instead, Ethics emphasizes an "interview of the respondent and any witnesses." The reason for this bias, as Director St. Croix admitted in 2009, is that respondents are more likely to provide "exculpatory information."

Empowering staffers at the expense of whistleblowers was a weird outcome of demands for more transparency and oversight by Commissioners Eileen Hansen and Joe Lynn in 2005. Because of confidentiality, they argued that; "the public has no assurances that staff is carrying out its mandate." In his July 2005 response, St. Croix agreed to publicly disclose dismissed and settled cases in Enforcement Summaries, and to categorize incoming complaints in his monthly Director's Report. However, St. Croix's July 2006 follow-up report, Investigations/Enforcement Review, reversed course. It lobbied for "streamlining the process" via more staff autonomy and less transparency - to ease the staff's workload! The Commission approved the plan 4 to 1 in August 2006, with Hansen dissenting and Lynn gone. Now, Ethics Regulations include goal #6; "Delegating to the Commission staffthe maximum discretion in the handling and resolution of complaints at staff level, while retaining oversight of staff activities." As explained in last month's Westside Observer, that oversight is illusory.

Given maximum discretion, staff explain How to File a Complaint on the Ethics website: "Complainants should be aware that the Ethics Commission's Regulations…provide that a person accused of a violation (the respondent) must be provided with a copy of the complaint."Reassuring? Not for whistleblowers. Plus it's disinformation. Ethics Regulations, Sec. XII.B.3, state that the Director "may provide a copy of the complaint to the respondent…if necessary to the conduct of the investigation." Importantly, the City Charter Appendix C3.699-13 requires Ethics to provide respondents with "a summary of the evidence" – not a "copy of the complaint." Big difference. A copy of a complaint can identify whistleblowers by the details given and the grammar used. Although the option of filing anonymously is offered, it comes with the off-putting proviso that Ethics staff are "not required to process or respond to anonymous complaints."

Equally inhospitable from the current Ethics brochure: Ethics "investigates complaints alleging retaliation to complaints filed with the Ethics Commission."Not so. When the Whistleblower Protection Ordinance was amended in February 2002 — as recommended by the Commission itself — Ethics took responsibility for investigating retaliation against whistleblowers who filed complaints within their own departments, as well as to the Controller, the City Attorney, the DA and the Ethics Commission. By wrongly shrinking Ethic's jurisdiction, the brochure deters retaliation complaints. Worse, Ethics staffers may be dismissing valid retaliation claims based on this misrepresentation of their duties. Maybe that's why Ethics averages just 18 investigations a year. For example, the Annual Report for 2010-11 tells us that "staff resolved 20 cases" and, "This number does not include the myriad of other cases…that are determined to not be within the jurisdiction of the Commission." By declaring most retaliation complaints out of bounds, they can be ignored or referred out — and thereby dismissed.

Another side-effect of maximum staff discretion is delayed investigations, as noted in the 2010-11 Civil Grand Jury report, San Francisco's Ethics Commission – The Sleeping Watchdog. Our complaints about tainted DPH contracts were referred, buried, exhumed, and then dismissed after 26 months. Lead Hazard Program whistleblower Rita O'Flynn (Westside Observer, May 2013) has also noted how slow-walking investigations into the statute of limitations can bar avenues for legal redress. Delays boost dismissals as complainants give up, witnesses forget, and documents are lost. After referring tips to the City or District Attorneys, St. Croix has waited up to 9 months – supposedly to avoid "duplicate law enforcement investigations." However, the passage of Proposition E in 2001 authorized Ethics to "investigate complaints before investigations by the City Attorney or District Attorney are concluded." Therefore, action by the DA or City Attorney does not prevent Ethics from investigating concurrently; political considerations may do so.

In sum, the Ethics Commission deters reporters of government wrongdoing. Until reforms are implemented, justice is best served if whistleblowers obtain legal counsel, then expose misconduct publicly.

*Georgia's Ethics Scandal

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

December 2013

Deterring Whistleblowers

We previously reviewed how the Ethics Commission (Ethics) “dismissed” whistleblowers, their tips, and retaliation complaints. But getting rid of whistleblower claims doesn’t stop more from rolling in, so deterrents serve to limit exposures of wrongdoing.

Commissioners are the first line of deterrence. Like a skilled courtier, Positive Resource Center CEO Brett Andrews gained an Ethics seat this June after promising the Board’s Rules Committee “to build on Commissioner Liu’s legacy.” Andrews’ adulation of said legacy was based on schmaltz rather than his own observations or Liu’s contributions. Though viewed as a phantom by Ethics watchdogs, Andrews portrayed himself as engaged. Upon resigning after just 2 years, a fawning Commissioner Dorothy Liu had showered thanks and praise on her Ethics colleagues. Their polite responses credited her with more virtues than she possessed. By reframing this flattery as legacy, Andrews offered a “go along to get along” ethos for proximity to power.

When asked by Supervisor Malia Cohen to showcase his aptitude for managing controversies, Andrews shared a trifle: how he led his agency to move downtown despite staff concerns. No mention of the 3-year legal battle with his former Legal Director – and whistleblower – Jane Gelfand (SF Weekly May 22, ‘13). Since Ethics is charged with reviewing whistleblower retaliation claims, Andrews cast a pall over his candidacy by hiding his own whistleblower imbroglio. Yet, Supervisors Norman Yee, London Breed and Cohen selected Andrews over Hulda Garfolo, a knowledgeable, truth-telling Civil Grand Juror who had investigated both the Ethics Commission and the Whistleblower Program.

To safeguard public service, conflicts of interest must be disclosed and avoided. Accordingly, all Commissioners must provide a Statement of Economic Interests (SEI) to the Ethics Commission. Though installed on 6/18/13, Andrews needed nudging to file his required SEI – 4 months later. In response to our 10/14/13 Sunshine inquiry about his missing SEI, Ethics responded 2 days later: “Commissioner Andrews’ Statement of Economic Interests was not posted because he filed yesterday.” Watching will tell if Andrews’ community service and political savvy yields ethical, independent decision-making.

In February 2012, Paul Renne, husband of former City Attorney Louise Renne, was appointed to Ethics by DA George Gascon. Renne’s initial Statement of Economic Interests (SEI) showed millions invested in 63 corporate assets, income exceeding $200,000 from law firms - including the one his wife founded - plus a Golden Gateway Commons property that sold for $2.2 million in October. One year later, Renne’s SEI portfolio has bulked up from 11 to 14 pages, with 82 investments valued between $1 and $9 million. This world is far removed from 99% of whistleblowers. Despite an occasional populist stance, Renne identifies with the few who really know. He ended the contentious 9/23/13 Ethics meeting by dismissing public criticism of Ethics Director John St. Croix as “all unfounded…because it isn’t the way any of us feel who know what you’re really doing.”

Relevant too is Louise Renne’s analysis of the 2012 SF Housing Authority (SFHA) whistleblower scandal involving alleged contract-rigging, harassment and retaliation. After protesting mismanagement, SFHA attorney-whistleblowers Tim Larsen, Roger Crawford and Bill Ford were laid off. Two of them sued. In November 2012, Renne’s firm was commissioned by the SFHA to conduct an “independent investigation” as part of a 2-year contract for “As Needed Legal Services” for up to $195,000 yearly. According to the SFHA, as of late May 2013, her firm submitted 6 invoices totaling $174,560. For this payout, Renne labored like an elephant, and brought forth a mouse. After 6 months and 32 interviews, she issued a 5-part, 112-page “limited, preliminary review” that “did not find evidence” and could “offer no conclusions” about tainted contracts. How much would a full, final review cost? In contrast, an audit by the Board’s Budget Analyst cost $162,000 and found that contracts “were handled so poorly as to give an appearance of favoritism.” Renne also chose to “express no opinion about…unlawful discrimination, harassment and/or retaliation.” Just like Ethics investigations, hers found “insufficient evidence of retaliation.” Instead, she detected “discourteous and unprofessional conduct” and a single instance of “discriminatory conduct” by former SFHA Director Henry Alvarez. Having been black-balled by Louise Renne, the SFHA whistleblowers bypassed Commissioner Paul Renne et al, and took their retaliation claims directly to Superior Court.

Priorities also serve as deterrents. Initially, Ethics handled complaints on a first-come, first-served basis. Whistleblowers had a chance, even though campaign finances garnered more attention. Over time, Ethics acquired ever-increasing mandates. That’s why its resources steadily grew, from an operational budget of $157,000 with temp staffers in 1994, to $2.45 million and 18 positions in 2013. But all along, Ethics lamented its “insufficient resources.” Under-resourcing was nettlesome between 2003 and 2008 when Ben Rosenfield was the Mayor’s Budget Director. (In 2008, Rosenfield was appointed Controller and promptly cut 41% from his Whistleblower Program budget.) Several Commissioners had lobbied for more funds, to no avail. It took a 2004-05 Civil Grand Jury investigation, San Francisco Ethics Commission Budgeting and Staffing Issues, to wrangle an extra $326,000 from Rosenfield. By then, whistleblower cases were being buried. When whistleblowers arose among their staff, Ethics Directors Ginny Vida, Mabel Ng and St. Croix took it as insubordination. Fortunately, the Society of Professional Journalists gave Freedom of Information awards to Ethics whistleblowers: Joe Lynn in 2003, then Oliver Luby and Kevin de Liban in 2005.

Potential whistleblowers had gotten the message: stay away from Ethics.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

November 2013

ETHICS COMMISSION: WHISTLEBLOWERS: "D.O.A." pt 2

As described in last month's WSO, the Ethics Commission (EC) has many ways of "dismissing" complaints, resulting in a 100% denial of Whistleblower Retaliation claims.

The City Charter requires that Ethics forward to the City and District Attorneys all complaints that appear to show a violation of Ethics laws. Similarly, Ethics can't even issue formal letters of advice without vetting by the DA and City Attorney. We can infer why whistleblower complaints are doomed by looking at the legal machinations that undermine Sunshine complaints.

In a 3/18/11 Bay Citizen story, Ethics Executive Director John St. Croix admitted that 14 of 27 Sunshine complaints "were dismissed based on advice from the City Attorney's Office…" The City Attorney has a duty to defend City officials. Since Sunshine complaints are all directed against City officials, complainants find themselves opposed by City Attorneys who coach Ethics staff. Fortunately, Ethics Regulations require the Director to send; "a monthly summary to the Commission of each complaint dismissed, including the reason for dismissal." Unfortunately, the Director and City Attorney calculate how little to share, because "such information shall comply with the confidentiality provisions of the Charter." Blunders and cover-ups are easily disguised in confidential summaries — especially bungled whistleblower investigations. Further, Commission oversight is illusory. A July 2006 Staff Report revealed that Commissioners rubber-stamped 90% of recommended dismissals. In September 2006, the Commission agreed to forego monthly reviews, and accepted a Quarterly Log of St. Croix's dismissals. In 2011, a Commissioner confided to the Grand Jury that, "the Commission should support the Executive Director in his decision to dismiss a case." Like Sunshine complaints, Whistleblower Retaliation claims fault City officials. That's why they're always dismissed. In government misconduct cases, Ethics becomes a front for the City Attorney's wangling.

Ethics referrals to the District Attorney's Office offer little hope for whistleblowers. Our 2009 complaints about tainted Department of public Health contracts sat in the DA's Office for 9 months. After we complained, two Deputy DAs interrogated former Health Director Mitch Katz, then referred our case back to Ethics. After closing the case, the DA's Office wouldn't release any information about its findings. CitiReport's 3/8/12 article: Gascon: No Action on Ethics Sunshine Referrals described similar disregard with seven Sunshine complaints that Ethics referred to the DA from 2009 through 2011. In each case, Ethics had asked the DA "whether your office will pursue this matter." The Charter requires a response "in writing" within 10 days. Neither the DA nor Ethics could provide records of a response. Apparently, Ethics referrals to the DA are also D.O.A. – whenever citizens find fault with City officials.

The EC's drive to deny complaints also leaps from a 6/5/12 report by the Board's Budget and Legislative Analyst. Harvey Rose compared the enforcement practices of the San Francisco and Los Angeles Ethics Commissions. Here, a whopping 76% of 137 complaints were dismissed, versus just 19% of 354 in L.A. Amazed by this 4-fold discrepancy, Rose dawdled, "…more research could be done to explain the differences." No kidding. So in December 2012, we inquired of Ethics Deputy Director Mabel Ng, who attributed her higher dismissal rate to not screening complaints until "the last year or so." A 5/23/13 Staff Report elaborates, S.F. "historically initiated a formal complaint prior to conducting a preliminary review," whereas L.A. conducts a preliminary review "prior to an allegation becoming a formal complaint." If so, then L.A., with 10-times our population, must be junking most of its tips to achieve a dismissal rate 4 times lower than S.F.'s. When we asked L.A. Ethics investigator David Tristan, he denied that most complaints were written off. The SF Staff Report adds that "since 2011 staff has conducted a much more extensive preliminary review" - similar to L.A.'s system - to ensure that only credible formal complaints are "brought forward." However, Enforcement Summaries in "the last year or so" (9/12/11 to 9/24/12) still showed a 74% dismissal rate.

Our Ethics Regulations state that the Director "may dismiss the complaint if the allegations do not warrant further action." Most complaints – including retaliation complaints – are euthanized under this "preliminary review." Implementing L.A.'s "much more extensive preliminary review" - prior to investigations – will deepen the shade because fewer complaints will be investigated, and only investigated cases are publicly recorded. Will screened-out complaints be buried? There's no provision for discarding complaints, though it's been done. To manage a backlog of 45 complaints in 2004, St. Croix tossed an undisclosed number of "non-viable" cases. The 2005 Annual Report portrayed the maneuver as "closing investigations that are unlikely to be resolved."

Occasionally, the Director opens a "formal investigation." This route usually ends in dismissal too. Customarily, there's "not probable cause to believe" that any violation occurred. Then, the dismissal recommendation goes to the Commissioners. Before 2011, dismissals were automatically endorsed – unless two Commissioners wanted a Closed Session review. After the Grand Jury's lashing report, Ethics lowered the review threshold to one Commissioner's request. Alarmed by an "abdication of oversight responsibilities," the Jury also urged Commissioners to "vote on investigations recommended for dismissal." They refused. By staying a course that nullifies whistleblowers, Ethics has devolved from favoring respondents, to suppressing complainants, to abetting reprisals.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed DpH wrongdoing. Contact: DerekOnVanNess@aol.com

October 2013

ETHICS COMMISSION TO WHISTLEBLOWERS: "D.O.A."

T he City Charter directs the Ethics Commission (EC) to investigate Whistleblower Retaliation claims. Since June 1995, all have been Dead On Arrival. Diagnosing why they are dismissed is hampered by "confidentiality"; however, the notion that 100% are invalid is implausible. Like others, our retaliation complaints were dismissed, and then validated in litigation, resulting in a $750,000 settlement and mandatory training in Whistleblower Rights for Laguna Honda Hospital executives. Most likely, Ethics rejects Whistleblower Retaliation claims automatically or intentionally. We can infer how it's done by dissecting other complaint dismissals.

Some complaints are simply covered up. In an 11/4/08 SF Chronicle article titled; Follow the Money, former Ethics officer and whistleblower Oliver Luby recounted that when he discovered a money-laundering scheme involving City College officials in 2005, Ethics Executive Director John St. Croix instructed him to keep quiet. After the SF Chronicle exposed the scandal 18 months later, St. Croix told the SF Bay Guardian; "I don't know who dropped the ball. But at the time, we had less staff and there were a lot of things…we weren't doing." Although the College Chancellor and a deputy were convicted of illegal diversion of $150,000 in public funds, Luby was forced out of his job. His 10/2/11 CitiReport article; Ethics Case Study in Scandal: City College Money Laundering details the cover-up.

Another way to bury complaints is to copy them to those accused. That's how Ethics handled whistleblower tips from 1995 until perhaps mid-2008. In a July 2006 memo, St. Croix admitted: "Prior to a few years ago, whenever a complaint was filed, staff would send a copy of the complaint to the Respondent." Two years later, on 8/7/08, the practice officially halted when the Board of Supervisors amended the Whistleblower Protection Ordinance to prevent disclosures of source identities. Until then, as CitiReport editor Larry Bush told the Board on 9/15/08; "…any employee who blew the whistle… immediately had their name turned over to their Department by the Ethics Commission." Historically, 43% of all Ethics complaints were referred back to implicated departments, or to other agencies like the Civil Service Commission and Human Resources. Nowadays, the numbers are withheld. These referred complaints are considered dismissed. And, if Ethics doesn't investigate them, their outcomes aren't seen in published Enforcement Summaries. Such invisible, untracked referrals multiply opportunities for white-washes and reprisals.

A sure-fire way to neutralize retaliation complaints is to refer them to Human Resources. When the Board of Supervisors drafted the Expanded Protections for Whistleblowers Ordinance in 2002, it addressed retaliation as follows; "The Ethics Commission may refer matters to the Department of Human Resources with a recommendation concerning reinstatement, restitution and discipline." Ominously, those crucial last 5 words were deleted when Ordinance 29-02 passed. Instead of an independent Ethics review, cases are slipped to an agency that tolerates managerial reprisals.

Inept investigations cannot substantiate wrongdoing, so complaints get dismissed by default. Such was the "culture of failure" described by the late Joe Lynn, a 5-year Ethics Officer who then served as Commissioner from 2003-2006. In an August 2007 Fog City Journal series titled; They're Back – Ethics Resumes Meltdowns, Lynn begins with "overpowering evidence of professional incompetence" among senior staff, and ends with incurious Commissioners who "get spoon-fed by staff." Complaint denials resulted from staff's lack of investigative skills, their turning down training offers, salaries that didn't draw good investigators, and a City Hall that was OK with it. In his 2/12/09 Bay Guardian piece, Watchdog Calls for Major Reform of Ethics Commission, Lynn saw no improvement. Little has changed. Without capable sleuths, reporting retaliation is futile.

Sham investigations also ensure dismissals. For example, willful violations of the Sunshine Ordinance are referred by the Sunshine Ordinance Task Force (SOTF) to Ethics for enforcement. These have been reflexively denied since 2004 when St. Croix was hired. In a 5/7/09 Fog City Journal expose, Ethics Commission Airs its Dirty Laundry, Lynn announced, "We now understand why the Ethics Commission has dismissed each of the Task Force's 14 referrals." He provides a video wherein St. Croix admits to ignoring complainants during investigations because, "There's not a lot of exculpatory information that's involved in talking to complainants...it's generally the respondent that has to provide the information…" Interviews were reserved for accused officials and City Attorneys representing implicated Departments. SOTF members and their audio-taped Hearings were disregarded. Warranted investigations were dropped to pursue vindictive ones, belying St. Croix's "old canard of funding problems as a justification for his procedures." In sum, Ethics investigations "uncover willful violations only if the respondent decides to confess." This evidentiary standard also dooms Whistleblower Retaliation claims.

While the Sunshine Ordinance promotes public access to government records and meetings, St. Croix wanted records of Sunshine investigations kept secret. In October 2009, retired lawyer Allen Grossman successfully sued Ethics to release files on 14 dismissed Sunshine complaints. Grossman found "very little in the files by way of analysis and investigation" and some "specious reasons for dismissal." Afterwards, St. Croix's dismissals continued – albeit with shrewder, more detailed and oppositional analyses. Alarmed by ongoing denials of 18 consecutive Sunshine complaints, the 2010-11 Civil Grand Jury investigated. In San Francisco's Ethics Commission – The Sleeping Watchdog, it reported; "The Ethics Commissioners have relinquished their authority to the Executive Director concerning his recommendations for dismissal." Notoriously, Ethics dismissed 33 of 34 Sunshine complaints between October 2004 and October 2012, a record exceeded only by the 100% denial of retaliation claims.

Next month, we'll examine other ways whistleblower complaints are dismissed by Ethics, including the role of the City and District Attorneys.

Dr. Maria Rivero and Dr. Derek Kerr, as senior physicians at Laguna Honda Hospital exposed wrongdoing by the DPH. Contact: DerekOnVanNess@aol.com

September 2013

WHISTLEBLOWERS

By Dr. Maria Rivero & Dr. Derek Kerr

The First American Whistleblowers

On July 30, 1778, while at war against imperial Tyranny, the Continental Congress empowered whistleblowers to protect the new Republic; “Resolved, That it is the duty of all persons in the service of the United States, as well as all other the inhabitants thereof, to give the earliest information to Congress or other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.”

The genesis of our first Whistleblower Protection Act was a Revolutionary War battle in Rhode Island, aboard the US Navy warship Warren. There, ten whistleblowers – Navy and Marine officers – planned to expose the incompetence, misconduct and war crimes of Navy Commander-in-Chief Commodore Esek Hopkins. Their mission was as perilous as Hopkins was formidable. Suffocating under British occupation, the Continental Congress had recruited Hopkins to relieve General George Washington from the “plague, trouble and vexation” of unruly naval crews. Owner of a large merchant fleet, Hopkins had reaped a fortune privateering during the French and Indian War. His brother Stephen governed Rhode Island, and signed the Declaration of Independence. His son John was captain of the Warren. His flagship flew his personal standard - a rattlesnake coiled to strike, with the motto, Don’t Tread on Me.

The imperious Commodore was both brash and indolent. Instructed by Congress to sail “directly to Chesapeak Bay in Virginia” and attack the British fleet, he sailed to the Bahamas instead. There, he successfully raided a British arms depot, but later allowed enemy frigates to escape unchallenged from U.S. waters. Raring to fight, his officers protested being anchored “in a total state of inactivity for Several Months…therein they could not Serve their Country in its defence”. Hopkins struggled to recruit sailors, who made better money with privateers than the Navy. So he enslaved British prisoners, giving them a choice to man his fleet - or be “placed in irons” and starved. His officers deplored that he “treated prisoners in the most inhuman & barbarous manner.”

On February 19, 1777, just seven months after the Declaration of Independence, the ten dissidents signed a Whistleblower Complaint: “We are ready to hazard everything that is dearest, and if necessary sacrifice our lives for the welfare of our country…We are personally well acquainted with the real character and conduct of our commander commodore Hopkins…we (are)… sincerely and humbly petitioning the honorable Marine committee that they would enquire into his character and conduct for we suppose…he has been guilty of such crimes as render him quite unfit for the publick department he now occupies...” Marine Captain John Grannis was picked to go AWOL and carry their petition from Rhode Island to Congress in Philadelphia.

At the time, there was no First Amendment to uphold freedom of speech. Whistleblower protections didn’t exist. For a country at war, insubordination was threatening. Yet, complainant Grannis was treated respectfully. He was interviewed, not arrested. A Congressional investigation was conducted without secrecy, and published:

“Have you a personal Acquaintance with Esek Hopkins, Esq?”

A:“Yes, I have had a personal Acquaintance with him since I came on board the Ship.”

Q: “Did you ever hear him say any Thing disrespectful of the Congress of the United States…?”

A:“I have heard him at different Times…speak disrespectfully of the Congress…that they were a Sett or Parcel of Men who did not understand their Business…that they were a Parcel of Lawyers Clerks, that if their Measures were followed the Country would be ruined…”

Q:“Do you know any Thing about his Treatment of Prisoners?”

A:“I was on board the Frigate Providence when…Twenty Prisoners…were…asked…whether they would do Ships Duty? They answered No….Orders from the Commodore (were) to put them in Irons, to keep them on Two Thirds Allowance…some prisoners…were forced to do Ship’s Duty by Commodore Hopkins Orders, and he refused to exchange them when a Cartel was settled and other prisoners were exchanged, but don’t know that it was their Turn. The Reason he assigned for not exchanging them was, that he wanted to have them enlist on board the Frigate.”

Q:“Commodore Hopkins is charged with being a Hindrance to the proper Manning of the Fleet. What Circumstances do you know relative to this Charge?”

A:“I think him unfit for command…his Conversation is at Times so wild and orders so unsteady that I have sometimes thought he was not in his senses…it is generally feared that his Commands would be so imprudent that Ships would be foolishly lost…The Character that Commodore Hopkins bore was a great Hindrance to me in getting Recruits.”

Q: “Had you Liberty from Commodore Hopkins or Captain Hopkins to leave the Frigate…?”

A:“No. I came to Philadelphia at the Request of the Officers who signed the Petition against Commodore Hopkins, and from a Zeal for the American Cause.”

Although notables like John Adams supported Hopkins, the whistleblowers were not demonized as disloyal or arrogant. Accordingly, on March 26, 1777, “Congress took into consideration the paper containing charges and complaints against Commodore Hopkins; Whereupon, Resolved, That Esek Hopkins be immediately, and he hereby is suspended from his command in the American Navy.”

Outraged by the “unjust and false complaints” filed by his subordinates, Hopkins retaliated. He court-martialed the petition’s “prime mover,” a Lieutenant Marven, an associate of Thomas Paine, who himself fell afoul of Congress for leaking that France was supporting the Revolution. Interrogated by both Hopkins, father and son, Marven was found guilty of signing “scurrilous papers against his Commander-in-Chief.” Expelled from the Navy, Lt. Marven became the first casualty in a 235-year epidemic of retaliatory firings. Still thirsting for revenge, upon his removal from office in January 1778, Hopkins sued all ten whistleblowers for “criminal libel,” demanding 10,000 pounds in damages. Lt. Marven and midshipman Shaw were jailed without means for legal representation. They wrote “to humbly implore the intervention of Congress” after being “arrested for doing what they then believed and still believe was nothing but their duty.” Their appeal was read before Congress on July 23rd and another investigation ensued.

On July 30, 1778, the Continental Congress passed America’s first Whistleblower Protection Act, cited above. The Founding Fathers in Congress understood the dangers of retaliation, and criminalizing whistleblowers. Despite a wartime budget crisis, and National Security concerns, they noted that the whistleblowers had protested “while in the service of the United States.” Therefore, Congress “Resolved, That the reasonable expences of defending the said suit be defrayed by the United States.” Further, the whistleblowers were furnished, without having to ask, the Commodore’s personnel file, and all records of “the proceedings of Congress upon the complaint of the petitioners against Esek Hopkins, Esq.” Armed with funds for attorneys and depositions, plus investigative files including “letters from President John Hancock and others,” they were vindicated by a Jury. Hopkins was ordered to pay Court costs. In May 1779, Congress disbursed $1,418 for the whistleblowers’ legal fees, “to be paid to Mr. Sam. Adams.” Lt. Marven was granted his Navy pension, despite his court-martial for being a detractor. A decade later, trusting that “Freedom of Speech” and the “Right to Petition” would protect the people, the Founders enshrined these principles in the First Amendment of our Constitution.

Acknowledgement: Research by Stephen M. Kohn, Esq., Director of the National Whistleblower Center (www.whistleblowers.org) inspired this article. see: whistleblowers.org/index.php?option=com_content&task=view&id=1251

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

July-August 2013

DEAD-END FOR WHISTLEBLOWERS:

THE ETHICS COMMISSION

By Dr. Maria Rivero and Dr. Derek Kerr

A grim reality of “City Family” life is that 100% of whistleblower retaliation claims are dismissed by our Ethics Commission (Ethics; EC). The City’s Whistleblower Protection Ordinance (Article IV of the Campaign & Governmental Conduct Code) proclaims it “protects all City officers and employees from retaliation.” Since laws don’t enforce themselves, Ethics was given the job. Retaliation investigations started in June 1995. Since then, none have been sustained. The exact total is locked away. Nevertheless, a substantiation rate of zero for 18 years is statistically suspect. Whistleblower studies show that retaliation is common, with rates ranging from 22% to 90%. But in San Francisco, whistleblowers are desaparecidos and the retaliation rate is always zero. The failure to enforce the Whistleblower Ordinance makes it meaningless. It also makes it deceptive — a trap for trusting tipsters. Worse, non-enforcement forces whistleblowers to sue the City.

The roots of deception reach back to 1993 when the EC was sold to voters as a means to clean up our City government, but its architects inserted controls to protect the interests of politicians, lobbyists and City officials. For example, the original “Regulations for Investigations and Enforcement” restrained the Executive Director from overzealous prosecutions. Instead of receiving designated funding, Ethics must plead with City Hall for its annual budget. Its five Commissioners are appointed by the Mayor, Board of Supervisors, District and City Attorneys, and since 2001, the Assessor. Fawning candidates prevail. In April 2011, the Board had to fill the EC seat that “broadly represents the general public.” Dorothy Liu, an employment attorney with a large firm that represents City management, clinched the appointment by promising; “I would respect the integrity of the Board, for certain. I would be open and willing to talk to all of you about issues that need to be addressed.” Predictably, complaints that touch officials who appoint its Commissioners and approve its budget go nowhere.

In a world of complainants and respondents, Ethics empathizes with the latter. Goal #3 in its Regulations is, “Protecting the privacy rights of those accused of ethics violations…” There’s no goal to protect complainants, just lip-service. At an April 2005 meeting, Executive Director John St. Croix emphasized; “confidentiality is an important issue because investigations and enforcement matters impact the lives and livelihoods of respondents.” St. Croix publicly lauds the City Attorney, whose duty is to defend City officials, as the “higher authority” in guiding Ethics decisions. Citizens who criticize his habitual dismissal of ethics complaints are labeled “believers in ‘gotcha government.” When Ethics adjudicated a Sunshine complaint against St. Croix in October 2012, citizens warned the Commissioners about conflicts of interests. Unaware that bias is ubiquitous and often sub-conscious, Commissioner Jamienne Studley, the City Attorney’s appointee, claimed immunity because; “we act with regard to City officials all the time where the situation is sensitive.” Studley explained that she examines both sides of any issue, and suffers no conflict - if the City Attorney says so - and “as long as…we feel that we have an open mind.” This respondent bias makes it easier to deny whistleblower claims. That’s one reason retaliation persists.

Building upon respondent bias, Ethics has rendered whistleblowers, and retaliation, invisible. This process started around 2004 when the Whistleblower Hotline was transferred to the Controller’s Office, and St. Croix was installed. Before then, whistleblower complaints and retaliation were openly addressed. For example, in 2001 Ethics proposed an Article IV amendment to also protect, “employees who are subject to retaliation…when they report improper or unethical conduct to their departments.” Whistleblower retaliation complaints were tallied. The percentage of whistleblower complaints was reported until 2002, and amounted to 36% - about 10 tips yearly. In late 2003, the whistleblower designation vanished from Annual Reports, and all tips were simply called complaints. Though solely responsible for adjudicating claims of whistleblower retaliation, and required to annually report types of misconduct, Ethics purged this category from its Annual Reports. Whistleblowers regained a glint of visibility in January 2006 when St. Croix introduced six categories of complaints in his monthly Director’s Report. “Whistleblower” was one of them. But the next month, it was gone, never to return.

The opacity spread even farther, in defiance of Article IV that requires Ethics to annually report: (a) “the number of complaints received”, (b)” the type of conduct complained about”, and (c) “the number of referrals…” Starting in 2004, the number of referrals to other agencies disappeared, though they had amounted to almost half of all tips. Retaliation as a “type of conduct” had been quashed. By 2005, Annual Reports deleted the count of complaints received. These still appeared in the Director’s Monthly Reports until August 2011, when the number of new complaints was replaced by the sum of pending investigations.

Once invisible, whistleblower retaliation complaints are easily buried. Rarely has Ethics provided numbers, and they don’t add up. Meeting minutes for December 2001 show that 7 whistleblower retaliation complaints had been reviewed since June 1995. That’s about one a year. Ten years later, in September 2011, St. Croix testified before CGOBOC (the oversight body for the Controller’s Whistleblower Program) that Ethics had received; “less than 20 in the 16 years we’ve been in business.” Again, one a year. He added, “When investigated, some were found not to have merit. Others could not be proven.” In other words, all were rejected. It’s intriguing, however, that among the 160 investigations listed in Ethics “Enforcement Summaries” between October 2004 and April 2013, only 2 mention retaliation. That’s just 2 in 8.5 years – a lot less than one-a-year as St. Croix implied. What happened to the others?

Clues rolled in after we protested the City’s failure to monitor whistleblower retaliation. In October 2011, Ethics agreed to report outcomes of retaliation cases to the Controller’s Whistleblower Program. Suddenly, the numbers zoomed upward. The Whistleblower Program’s 2011-12 Annual Report shows that Ethics reviewed 17 retaliation cases over 9 months. None were sustained. Amazingly, however, Ethics was now reporting 2 retaliation claims per month, instead of one per year. No explanation for this startling 20-fold increase – despite our inquiries. Only one case was investigated and noted in Ethics Enforcement Summaries for 2011-12. The other 16 were “dismissed after preliminary review.”

At the November 2012 CGOBOC meeting, Rebecca Rhine strained to downplay this surge in retaliation complaints as being;”…retaliation for any number of other activities, but not claims of retaliation for being a whistleblower.” Since the EC’s jurisdiction covers whistleblower retaliation complaints, and since the 17 retaliation cases were reported to the Whistleblower Program, why would they be anything other than whistleblower claims? Besides, “retaliation” is defined as adverse employment actions for engaging in legally protected activities – most of which involve whistle-blowing about misconduct. The spike in retaliation claims, and their relentless dismissals, must be explained.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

June 2013

Oversight Disregarded

Dr. Maria Rivero and Dr. Derek Kerr

When 71% of voters passed Proposition C in November 2003, the Controller became City Services Auditor (CSA) and took over the Whistleblower Program (SFWP). Oversight of these functions was assigned to the Citizens’ General Obligation Bond Oversight Committee (CGOBOC). Last month, we examined some constraints placed upon CGOBOC’s mission. Here, we review the Committee’s own laxity in overseeing the Whistleblower Program.

Since 2004, CGOBOC has struggled to keep up with a slew of reports about City services, plus those from Bond Projects. Still, they stuck to quarterly meetings, squeezing in an extra one yearly to plough through the work. Only after an August 2011 scolding by civic activist Nancy Wuerfel did they vote for 6 meetings annually.

Lapses in oversight of the Whistleblower Program came to light during May 2010 media coverage of whistleblower tips, and retaliation, related to Laguna Honda’s Patient Gift Fund scandal. So in July 2010, CGOBOC devised a 3-member “Standing Committee on Audit Review” to better oversee the Whistleblower Program and CSA projects. But the 2010-11 Civil Grand Jury report; Whistling in the Dark – the San Francisco Whistleblower Program, faulted its dawdling 7 years before getting it organized. The Grand Jury characterized their oversight model as “weak” because it was dependent upon the agency it monitored, then concluded; “Clearly, CGOBOC is not an effective oversight body.” Further, it can be a stepping-stone to political office. Political ambitions can skew oversight. Both previous Chairs campaigned for Supervisor while serving the Committee.

Disinterest in whistle-blowing also impaired the Committee’s oversight. This is apparent from its 9-page Annual Reports. In the five Reports between 2003 and 2007, their role with the SFWP is covered in one sentence! For most of 2007, they forgot to assign a liaison to work with the program. The Annual Reports from 2008 through 2011 cover its work with the SFWP in one short paragraph, amounting to 2% of the text. Meeting minutes also reflect disengagement. In the 8 years between July 2004 and June 2012, it met 36 times. Ten of those meetings included briefings from the SFWP Director. But in only 3 did Committee members make comments worthy of entering the minutes. Two of these 3 discussions came after we criticized the Whistleblower Program.

Like Yin and Yang, CGOBOC’s disregard of the Whistleblower Program dove-tailed with the Program’s withholding of information from it. A tolerance for data-hoarding is most obvious in a 3-year period from 2008 through 2010 when the Committee accepted just two formal presentations by SFWP Directors. Without explanation – or opposition - the SFWP cut public reports from two to one a year in 2009, thereby reducing oversight opportunities by 50%. However, in a rare show of engagement in January 2009, Committee member Robert Muscat challenged the “mild” cases in the SFWP Annual Report, compared to “…all the kinds of activities in the City worthy of reporting and investigating.” The Committee then ordered a “more comprehensive and substantive list of complaints – and the actions taken.”

In response, a special Whistleblower report was presented in April 2009, with information never before disclosed. Of 414 complaints received in 2008, 24% had come through the 311 Customer Service Center, and 55% through the Whistleblower website. Only 13% of all complaints were substantiated. Only 42% were investigated. City departments bearing substantiated complaints were named: Public Health (16%), Recreation & Parks (11%), Public Works (11%), Parking & Traffic (9%). This degree of transparency wasn’t pursued by Committee. So, the SFWP stopped providing it. Although the Grand Jury’s activity pushed for more frequent and detailed reports, CGOBOC’s inertia allowed spotty and airy content. Vigilance had waned after Muscat’s 2009 protest. In a November 2012 replay, Jonathan Alloy panned the Whistleblower Program’s penchant for presenting pablum while excluding exhibits with information “more relevant to this Committee”.

In his July 2011 response to the Grand Jury, Controller Ben Rosenfield wrote: “an official liaison from the Citizens’ Audit Review Board…regularly receives updates and provides feedback on overall program metrics, reviews the program’s policies and procedures, and provides feedback to program staff on individual cases.” Really? Why isn’t any of this recorded in Committee minutes or Annual Reports? Notably, Rosenfield’s claim clashes with the April 2011 announcement by then-Chair, Abraham Simmons: “As you know, the Liaison has never been asked to do a review of the Program itself. This is the first time we undertook to do that.”

In her October 2011 reply to the Grand Jury, past-Chair Thea Selby defended the Committee’s oversight; “We have discussed the Whistleblower Program at over half the meetings I have attended in the last year and a half…” However, Selby had been a member since July 2009 - for 2 years and 3 months – not one and a half years. Committee agendas during her first year show just one item about the Whistleblower Program – in July 2010. That item was; “Creation of a subcommittee to facilitate review of whistleblower complaints.” That decision came after KGO-TV’s coverage of Laguna Honda’s Gift Fund abuse. Subsequently, every discussion about the SFWP was triggered by public complaints, media coverage, or Grand Jury criticisms.

CGOBOC members have generally been open to public comments, but hesitant to act, even in overseeing bonds. Since 2002, the Committee has amassed $1,080,865 to audit bond expenditures. This pile of money sat unused for ten years, according to its 2011-12 Annual Report. No independent auditors were hired. Similarly, no outside consultants were asked to assess the Whistleblower Program, although there are ways to get pro bono help. For example, its Bylaws allow for a “Special Subcommittee” composed of: “members of the Committee and/or the public.” After 8 years, no public experts have been recruited.

The Charter empowers the Committee to “recommend departments in need of comprehensive audit.” But it hasn’t even recommended a whistleblower satisfaction survey. In the past 6 months, taxpayers forfeited over $1.76 million to settle 3 whistleblower retaliation lawsuits. Why pay, when we have a Whistleblower Program, a Whistleblower Protection Ordinance, and an Ethics Commission that dismisses every retaliation complaint? CGOBOC must reclaim its mission and recommend an audit.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

May 2013

Oversight in Bondage

by Dr. Maria Rivero and Dr. Derek Kerr

Given human nature, oversight is needed to keep decision-makers accountable, and to protect public interests. Article IV, Sec.4.102 of the City Charter constrains oversight bodies to work “solely through the department head” to prevent political interference. Still, oversight succeeds when it is knowledgeable, independent, and committed to public service. Surprisingly, oversight of the SF Controller’s Whistleblower Program (SFWP) was thrust upon the Citizens’ General Obligation Bond Oversight Committee (CGOBOC). This happened when Proposition C of November 2003 authorized the Controller to act as City Services Auditor —and to run the Whistleblower Program.

CGOBOC itself had arisen from Proposition F in March 2002 in reaction to Laguna Honda Hospital’s over-budget, under-scope and over-time replacement bond project. The City wanted independent citizen oversight of City bond expenses. and to make sure money was spent as voters intended. But these bond-related duties were far removed from City services and whistleblowers. Nevertheless, the Charter amendment had CGOBOC: (a) function as an independent Citizens’ Audit Review Board to advise the Controller/City Services Auditor; (b) recommend departments in need of comprehensive audit; and (c) review citizen and employee complaints received through the whistleblower /complaint hotline…and the Controller’s disposition of those complaints.

Judging from CGOBOC meeting minutes, these new oversight tasks were bewildering and unwelcome. And, they came with no training, no budget and no enforcement powers. Although CGOBOC has amassed a $1.1 million budget garnered from 0.1% of bond proceeds, this money must be used to audit bonds, not the SF Whistleblower Program. While Prop F dictated that the Board of Supervisors would provide “administrative assistance” to CGOBOC, somehow all of its aid came from the Controller. For example, its Committee Assistant is the Controller’s own executive secretary. Though CGOBOC can recruit outside experts, the vetting and funding comes from the Controller. Oversight of the SFWP is limited to asking questions and hearing public comments.

At the September 2003 CGOBOC meeting, then-Controller Ed Harrington explained how Prop C would affect Committee members; “one major difference in work-load between the current bond-related responsibilities and the advisory role to the Controller would be that all reports would be coming from one source - the Controller.” Harrington added; “The purpose of an advisory committee is to have civilian oversight without taking away the independence of the Controller.” This jumbling of “oversight” and “advisory” functions allows the Whistleblower Program to pretend it has oversight, while CGOBOC ducks oversight by pointing to its advisory status.

Claiming he was not consulted when CGOBOC was picked to oversee the Whistleblower Program, Harrington explained; “the Board did not want to create another advisory committee, and this Committee has the representation that the Board wanted.” Apparently, the Board wanted “representation” rather than expertise. Of CGOBOC’s nine members, three are appointed by the Board, three by the Mayor, two by the Controller, and one by the Civil Grand Jury. But only the Controller’s appointees must have expertise – one in construction management, the other in “auditing government financial statements” – both irrelevant to whistleblower programs.

How could CGOBOC meet its mandate as an independent Review Board if it relied on the Controller for all its information and resources? At the May 2004 meeting, Harrington told Committee members that: “it would be up to them to decide how much they wanted to be involved.” That was the extent of CGOBOC’s independence. Its role was described as; “assisting the City Services Auditor by looking at the data and determining if the information is useful, providing public hearing for audit reports, and accompanying the auditors on inspections if the members so choose.” Compared to CGOBOC’s Charter mandate, this guidance cropped its oversight. The secrecy imposed on the Whistleblower Program further limited CGOBOC’s oversight, and advice.

Meeting minutes from 2004 through 2012 show CGOBOC members passively receiving information from SFWP Directors. Focused on City bonds, and meeting quarterly for two-year terms, members hardly noticed when data about the SFWP was withheld. In January 2005, over a year after the passage of Prop C, CGOBOC finally chose two members to serve as “Liaisons” to the Whistleblower Program. But minutes of the April 2006 meeting show how this oversight mechanism was hobbled; “…the City Attorney’s Office noted that two members of the Committee have volunteered to meet with staff of the Whistleblower Program, monitor its progress and report back to the Committee …the City Attorney’s Office suggests that only one member interface with staff rather than two members…”. Working solo, the Liaison couldn’t confer with anyone, other than the SFWP Director, for the next 5 years. During that time, the Liaison presented only one substantive report about the SFWP, in April 2005. CGOBOC’s constraints and the City Attorney’s meddling lasted until late 2010. That’s when the Laguna Honda Gift Fund scandal and the Civil Grand Jury investigation spurred a show of diligence and responsiveness. After we protested the solitary Liaison arrangement, CGOBOC restored a second Liaison, Regina Callan, in August 2011.

By then it was too late. John Madden had already been sworn in as Controller Rosenfield’s appointee to CGOBOC in January 2011. He was immediately hustled to volunteer as the sole Liaison to the SFWP, and to conduct an unprecedented review of the Whistleblower Program. No one objected to Madden assessing the work of his patron, Rosenfield. It would have been gauche because CGOBOC’s then-Chair Abraham Simmons, who was running for Supervisor, had publicly endorsed Rosenfield to fill Mayor Newsom’s unfinished term. Cozier still, John Madden was the City’s Assistant Controller in the late 1990s.

So at the April 2011 meeting, Madden reviewed just three investigations, each hand-picked by SFWP Director Tonia Lediju. Oblivious to selection bias, Madden praised Lediju for her help. He skipped the investigative lapses in our Laguna Honda Patient Gift Fund case; “I did look at the Audit Report in that particular case. I haven’t gone all the way back on it. I did some review.” Madden likened whistleblowers to folks who “fink on their co-workers,” then equated retaliation to “putting sand in your sandwich” or being “moved to a smaller cubicle.” The Controller’s appointee found no problems with the Controller’s Whistleblower Program.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital Contact: DerekOnVanNess@aol.com

April 2013

Exhuming Whistleblower Complaints

by Dr. Maria Rivero and Dr. Derek Kerr

Buried whistleblower complaints haunt the SF Controller’s Whistleblower Program (SFWP). In 2011-12, 344 complaints were “closed”, most within 3 months. Still, 18 complaint investigations lingered over 6 months, with 3 dragged out beyond one year. Each year, about a dozen cases float in Limbo past 6 months, their stranding attributed to “complexity”. Now, SFWP auditors are rushing to exhume — then close the lid — on buried tips.

SFWP Manager Steve Flaherty jolted the 11/29/12 meeting of the Citizens’ General Obligation Bond Oversight Committee (CGOBOC), the oversight body for the SFWP; all 18 long-stalled investigations had been “closed” in a 12 week scramble. For the first time, no complaints were over 6 months old! No reason was given for this abrupt turn-around, just a slew of excuses for past delays. Stone-walling, a common delaying tactic, wasn’t mentioned. Instead, one message-point was emphasized, and echoed by Controller Rosenfield and CGOBOC member Madden: “Delays were not within the control of the Controller’s staff.” Reality got twisted in this denial of responsibility. The Controller can subpoena records, prod department heads, hire outside investigators, audit departments, and report non-compliant managers to the Board of Supervisors. Plus, the Controller must have orchestrated the speedy thaw of those 18 frozen cases.

Buried complaints are predictable because the SFWP outsources most investigations to the City departments named in the complaint. That was a key finding in the 2010-11 Civil Grand Jury report: “Whistling in the Dark – the San Francisco Whistleblower Program”. Though the City Charter requires the SFWP to “track” referred complaints, here’s what really happens: “(A complaint) goes to another department to investigate. The other department needs to get Human Resources involved, etc., etc., etc. Sometimes, the departments don’t assign the same priority that we would like…but that’s the world as it is.” Thus spoke John Madden, the Controller’s appointee to CGOBOC, and its liaison to the Controller’s Whistleblower Program.

The SFWP is also required to refer about a dozen tips annually to City agencies that have primary jurisdiction. Here again, the SFWP avidly ships cases out, seemingly indifferent to the outcomes. Some whistleblower complaints get lost for years. For example, our tips about tainted Health Department contracts that eventually recovered $430,000 for taxpayers were punted to the Ethics Commission, the City and District Attorneys, then back to Ethics, for 26 months, even though the Controller is charged with overseeing City contracts. Further, the Charter authorizes the SFWP to concurrently investigate such referred complaints. In practice, the SFWP bars concurrent investigations, supposedly to cut costs, despite abundant voter-approved funding.

Given this tendency to dispatch tips, the energetic unearthing of 18 cold-cases was amazing. The SFWP, staffed by two part-time auditors, is part of the Controller’s City Services Auditor (CSA) division. Both SFWP auditors faced more CSA duties because staffing had dropped below the usual 50 full-time jobs. CGOBOC’s Jonathan Alloy asked why the CSA had just 44 staff when 63 positions were covered by its $12.5 million budget. Rosenfield replied; “The goal is to fill the number of staff required to provide a meaningful body of work, rather than spend all the money we have because it’s available,” then promised to ramp up hiring. But overall staffing had fallen, while SFWP case closures rose from 200 last year - to 344. How did the SFWP close 70% more cases – plus 18 mummified complaints - without cutting corners?

Timely investigations are commendable, but racing to close cases doesn’t ensure quality work. That’s why military Whistleblower Programs require timeliness plus quality metrics. The SFWP hasn’t presented any quality assessments of its investigations, or of those it refers out. Its auditors have great leeway in determining the “validity” of complaints, and the adequacy of departmental investigations. When CGOBOC’s John Madden conducted the first and only review of SFWP investigations in April 2011, he opined that the 3 pre-selected cases he examined generally complied with SFWP policies and “…seemed reasonable and thorough.” While the SFWP Policies & Procedures provide good guidelines for investigations, they fail to describe, or even mention, any quality control process. That’s odd because the Charter requires the CSA to: “assess measures of effectiveness including the quality of service provided, citizen perceptions of quality, and the extent a service meets the needs for which it was created.” CSA does all this for many City services – except its own Whistleblower Program.

The 2010-11 Grand Jury delivered information that never appeared in SFWP reports, namely, whistleblower perceptions of quality. Yet, Controller Rosenfield chided the Jury’s “interviewing a small group of complainants,” without trying to “randomly sample feedback.” Ironically, the SFWP has never sampled any whistleblower feedback. CGOBOC Chair Thea Selby pointedly asked if the SFWP had surveyed any whistleblowers “to see if they…have been satisfied with the process, if not the outcome.” Rosenfield answered; “We have not. Figuring how to do it is part of the challenge – and what to do with the data that is reported back.” Well, the Controller’s CSA routinely uses survey data to improve performance and customer service. Why won’t the SFWP? By shunning whistleblower input, the Whistleblower Program has become a Procrustean agency, arbitrarily forcing informants to adjust to ill-fitting, disrespectful services.

Thwarted by City channels, some employees will seek legal redress. Data from the City Attorney and whistleblowers shows the City approved nearly $11 million in payouts for workplace harassment, discrimination and retaliation between January 2007 and January 2013. That’s about $1.8 million in taxpayer money yearly. True costs are higher due to City Attorney fees, mediation, sick leave, worker’s compensation, unemployment benefits, vocational rehabilitation, pension payments, training new hires, negative publicity, depressed workplace productivity and distracted customer service. The Whistleblower Program could abate some of these costs and damages with satisfaction surveys of whistleblowers, and quality reviews of investigations.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Dept. of Public Health. Contact: DerekOnVanNess@aol.com

March 2013

Rewards for Whistleblowers?

by Dr. Maria Rivero and Dr. Derek Kerr

“… San Francisco has a paramount interest in protecting the integrity of its government institutions. To further this interest, individuals should be encouraged to report…possible violations of laws, regulations and rules governing the conduct of City officers and employees.”

So states the City’s Campaign and Governmental Conduct Code. Yet, the SF Controller’s Whistleblower Program (SFWP) discourages whistleblowers.

Whistleblowers are the last line of defense against fraud, waste and corruption. But they face strong disincentives, including harassment, ostracism, termination, and blacklisting. That’s why the government has long used bounties to encourage informants. Realizing that government alone was over-matched by fraudsters, in 1986 Congress rejuvenated the Civil War-era False Claims Act (FCA) expressly to improve rewards for whistleblowers who sue on behalf of taxpayers. Typically, rewards range from 15% to 30% of recovered funds. FCAs prize information quality over informant motives. Seeing the success of these incentives, California became the first of 29 States to enact a FCA in 1987. Since 2005, local governments have followed suit, including New York, Chicago, Philadelphia, and Washington DC - but not San Francisco.

The fraud-driven collapse of the U.S. financial system in 2008 pushed lawmakers to reward whistleblowers, rather than just protect them. Accordingly, the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act features mandatory rewards for securities fraud whistleblowers. The Department of Justice, Internal Revenue Service, and the Securities & Exchange Commission (SEC) provide bounties to eligible informants. On 8/21/12 the SEC announced: “We are seeing high-quality tips that are saving our investigators substantial time and resources.” On 6/28/12 the Office of Special Counsel, the agency charged with protecting federal whistleblowers, gave “Public Servant of the Year” awards to three Air Force whistleblowers, proclaiming: “Whistleblowers are patriots. They possess unusual courage. They come forward because they are driven by conscience.”

Statistics published by the US Department of Justice show that rewarding informants pays. Between 1987 and 2010, the DOJ Civil Fraud Division recovered $9.03 billion without informants. But recoveries doubled to $18.17 billion with help from whistleblowers. A 2010 econometric study of corporate fraud by the University of Chicago showed that monetary rewards were the key “positive incentive” for employee whistleblowers. Rewards increased whistleblowing by 23% - without increasing frivolous claims.

While the SFWP rejects whistleblower incentives, other City agencies reward tipsters. The SF Assessor-Recorder’s “Real Estate Watchdog Program” offers bounties up to 10% of unpaid property taxes. In 2008, $59,803 was awarded to a “watchdog” whose tip brought in $1.07 million. The Department of Public Works has a “Littering, Nuisance and Graffiti Reward Fund” and publicly gives $250 to “Good Samaritans” who report taggers. Illegal dumping informants may get $500. Likewise, the Police Department offers $100,000 for solid leads in homicide cases. Reporting an illegal gun can bring $1,000. Turning in someone who sounds a false fire alarm nets $500. The Department of Public Health offers $250 rewards for tips about dog-fight trainers. The Civil Service Commission rewards police officers with one month’s salary for “heroic or meritorious conduct.” Why not whistleblowers?

Well, the 2010-2011 Civil Grand Jury did recommend “a reward system for validated high-risk whistleblower complaints with a $500 minimum or 10% of funds recovered…” This notion, that public benefit trumps whatever moral drawbacks come with rewards, roused a chorus of City Hall naysayers.

Controller Ben Rosenfield rightly asserted that City employees should report wrong-doing “as part of their jobs.” But most will not, to keep their jobs. Rosenfield warned about a “moral hazard,” that employees might delay reporting fraud in order to collect a larger reward. There’s no evidence of such scamming by City whistleblowers. Instead, the moral hazard comes from encouraging employees to not blow the whistle by denying incentives to do so - and by tolerating retaliation.

The formal responses to the Grand Jury were gems of bureaucratic resistance: “The Controller’s Office does not believe that rewards will enhance the effectiveness of the program…rewards are not a standard or recommended practice for local government whistleblower programs.” Mayor Lee responded, “the Civil Grand Jury does not provide any evidence where other jurisdictions have a reward system and where that reward system has improved the whistleblower program.” Nevertheless, since 1992 the Los Angeles County Auditor-Controller’s “Fraud Reward Program” has tendered up to $1,000 for tips toward convictions. The LA City Office of Finance “Whistleblower Program” pays up to 10% of any recovered unpaid business taxes.

At the 10/27/11 SF Government Audit & Oversight Committee hearing, Controller Rosenfield pleaded to Supervisors David Campos, David Chiu and Mark Farrell, “the unintended consequences of financial rewards are somewhat scary to us.” Along with the canard about City employees who “delay reporting a fraud until it reached a dollar-value threshold”, Rosenfield fathered another Boogeyman; city officials “who are part of the control system, whose job is to report fraud, waste and abuse,” might report violations solely to the SFWP - just to get rewards! Supervisor Farrell surpassed Rosenfield’s paranoia, calling rewards “perverse incentives.” In reality, employees whose jobs are to detect fraud, and those who are complicit in fraud, are always disqualified by government reward programs.

What went unsaid is that whistleblowers present a threat to unethical officials – and an implicit rebuke of the City’s control systems. That’s why the City rewards tips about citizen misconduct - never about government wrongdoing. Rewarding whistleblowers is taboo in circles where retaliation is more often orchestrated than experienced. As long as obedient employees are preferred over honest ones, City whistleblowers won’t be rewarded.

Fortunately, most whistleblowers aren’t driven by monetary rewards. But they do need acknowledgement and respect. The SFWP offers neither, much less incentives. One option is to offer “Public Service Awards” to whistleblowers who deliver high-value tips - and who desire such recognition. Such awards would reduce the “fink” stigma, curb retaliation, and show that the Whistleblower Program values those who justify its existence.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital. They repeatedly exposed DPH wrongdoing. Contact: DerekOnVanNess@aol.com

February 2013

High-Jacking the Whistleblower Program

Dr. Maria Rivero and Dr. Derek Kerr

The SF Controller’s Whistleblower Program (SFWP) emerged after voters passed Proposition C in November 2003. Prop C authorized the Controller to function as the City Services Auditor (CSA). In turn, the CSA would manage the SFWP. Instead, the Whistleblower Program has been high-jacked and crippled.

The CSA grabs two-tenths of one percent of the City’s annual budget – about $12.5 million in 2012-13. CSA’s funding amounts to 32% of the Controller’s Office budget, and is misleadingly called the “Controller’s Audit Fund”. Records show that since 2005, CSA spent $567,210 on 21 contracts for staff training and technology services – not audits. Only $19,360 (3.4%) went to the Whistleblower Program. While the CSA grew from 4 to 7 Divisions, funding for its SFWP Division dwindled from $312,816 in 2004, to a measly $139,192 in 2012.

The 2003 voter pamphlet presented Prop C as a good government measure to curb City corruption. Some 15% of the Proponents’ Argument promoted the SFWP to; “…ensure that City government will be run in a clean manner, above reproach” by having “…the Controller to investigate complaints of misuse of City government funds, and improper activities by City government officers and employees.” Fully 10% of the legal text of Proposition C featured the SFWP. But if voters expected 10% or 15% of Prop C funds to go to the SFWP, they were wrong.

In its first four years, from 2004-2008, the SFWP budget averaged $256,000 yearly. That amounted to 2.5% of the $41.2 million in Prop C funds then garnered. But in the last four years, from 2008 to 2012, the SFWP budget averaged a paltry $134,000 annually - just 1.1% of the $48.4 million pumped into the Controller’s Audit Fund. Therefore, between 2008 and 2012, the CSA collected 17.5% more tax money - yet chopped its SFWP budget by 48%, compared to the prior four years.

The turning point was 2008. That year, the SFWP budget was slashed from $218,010 to $128,410 – a 41% cut. Was there a cash shortage in the Controller’s Audit Fund? Nope. Records show that $12.9 million flowed into CSA’s coffers in 2008-09, compared to $12 million the year before. And of that $12.9 million, only $9.8 million was spent. The excess $3.1 million was returned to City departments and the General Fund. So, the SFWP budget was cut by 41%, despite a $900,000 boost to the Controller’s Audit Fund - with millions to spare. Also in 2008-09, the number of complaints handled by the Program soared from 347 to 465 – a 34% jump. Why did the SFWP lose 41% of its funding in 2008, despite an increased workload?

In March 2008, Mayor Gavin Newsom replaced 17-year veteran Controller Ed Harrington with his own – and Mayor Willie Brown’s Budget Director – Ben Rosenfield. Within three months, the SFWP budget was cut by 41%. During Rosenfield’s four years, the SFWP budget collapsed to 48% below the norm in Harrington’s tenure. However, Rosenfield’s spending on CSA contracts rocketed to $542,835 versus just $24,375 spent by Harrington. Under Harrington, the SFWP handled an average of 278 complaints annually compared to 391 yearly under Rosenfield. In sum, during Rosenfield’s four years, the SFWP lost 48% of its funding and gained 41% more work. All the while, CSA’s tax revenues had increased, along with spending on outside contracts. How could this happen?

One reason is that Prop C gave the Controller carte blanche to neuter the SFWP under the cover of “confidentiality” and lax oversight. Oversight of the SFWP was assigned to the Citizens’ General Obligation Bond Oversight Committee (CGOBOC). But CGOBOC was given no budget and no enforcement powers over the SFWP. Organizationally, CGOBOC is dependent upon the Controller’s Office for information, funds and staff. As the 2010-2011 Civil Grand Jury reported; “CGOBOC depends exclusively on selected information prepared by the Controller and the City Services Auditor (CSA) – the very department that it is charged with overseeing.”

When CGOBOC met in April 2009, newly-appointed SFWP Director Tonia Lediju announced a “revamping” – without mentioning the 41% budget cut then imposed. Deceptively, the CSA’s 2009-10 Work Plan budgeted $300,000 for the SFWP. But records show that only $133,707 – less than half - was actually spent. “Revamping” had leeched 55% of the SFWP’s allocation.

In December 2010, the SFWP quietly revised its original 2005 Policy & Procedure Manual. The difference is telling. In 2005, a dozen pages were devoted to engaging and responding to whistleblowers. By 2010, the Customer Service approach had expired. Instead, the focus shifted to managing complaints, staff development, and bureaucratic processes. Both Manuals use “Complaint Flow Charts” to show how tips are processed. But they are dramatically different. The 2005 version placed the whistleblower at the center of the chart. By 2010, the whistleblower was not only removed from the center, but off the chart entirely!

The 2010 Manual adopted a corporate tone. A self-promoting Mission/Vision/Values statement includes; Service – We focus on our customers’ needs. There is even a set of “strategic planks” like Marketing – Communicating our Mission and Engaging the Public. Apart from the fact that the SFWP does not engage its whistleblower clients, the corporate model is preposterous for a two-person “Program” with a $139,000 budget. Ironically, while the Controller is charged with recommending Customer Service Plans for all City departments (Charter F1.108), the SFWP treats its customers like threats. This practice was codified by adding a one-sided “Risk-Assessment” policy: “Each complaint is…evaluated to determine the risk profile of the complaint.”

This change re-framed the Program’s purpose from rooting out wrongdoing to dodging risk and liability. Within this paradigm, whistleblowers bring risk, City officials are customers, and confidentiality can limit risk by hiding misgovernment and sham investigations.

Since 2008, the SFWP has been sapped and rendered into a clearinghouse for “risks.” Belying the Prop C sales-pitch, the SFWP side steps looting, self-dealing and retaliation.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed DPH wrongdoing. Contact: DerekOnVanNess@aol.com

December 2012

Veiled in Secrecy – The Whistleblower Program

By Dr. Maria Rivero and Dr. Derek Kerr

Between 2004 and 2009, the SF Controller’s Whistleblower Program (SFWP) issued public reports every six months. Though brief, they gave examples of investigated complaints, substantiated or not. Readers could tell why some complaints were not substantiated. Starting in 2006, investigated City departments were identified. High-profile cases involving Commissioners, CEOs and even Supervisors were noted. Whistleblowers were promised confidentiality — and encouraged to identify themselves. SFWP staff would “ask follow-up questions and/or relay results of investigations.” By 2008, 57% of tipsters were providing contact information. There was a sense of public engagement.

Something changed in 2009. Public reports were cut from two to one a year, and loaded with verbiage about “confidentiality.” Names of implicated City departments were replaced by generic terms like “an employee” or “a department manager.” Such generalizations can hide mismanagement in a City with some 60 departments and 30,000 employees. “Unsubstantiated” case reports were deleted, though they outnumbered substantiated ones by 2-to-1 and may have harbored scandals. For the first time, the SFWP disclosed that it had “facilitated the investigation” of 50% of all complaints. But the number of investigations independently conducted by the SFWP remains a secret.

Right after Ben Rosenfield became Controller, the 2008-09 budget for SFWP salaries, benefits and overhead was surreptitiously cut by 41%. At an April 2009 meeting, the newly-appointed SFWP Director, Tonia Lediju, reported; “The Whistleblower Program is being revamped.” Nothing more was disclosed. Likewise, annual budgets for the SFWP were never made public. In response to our public records request, the Controller’s Office compiled data showing that in fiscal years 2004 to 2008, the average annual SFWP budget was $256,300. The next four years, between 2008 and 2012, the average annual budget plunged to $134,079 – a 48% drop. During the same time frame, the flow of complaints surged from an average of 278 to 391 yearly – a 41% increase. Nobody reported how the SFWP performed with 41% more work and 48% less money. And, the SFWP refuses to conduct a whistleblower Satisfaction Survey.

In its early years the SFWP consisted of a Manager and two investigators. Now, the SFWP reportedly gets by with two half-time investigators, one of whom is also the Manager. For fiscal year 2011-12, the SFWP budget was $139,192 – a puny 1.2% of the $11.6 million allotted to the City Services Auditor. Compare this $139,192 to the $93,849 base salary for SFWP Manager Steve Flaherty in 2010-2011. That budget barely covered one full-time investigator plus 30% benefits. Fiscal starving could explain the cloddish customer service, why investigations were punted to implicated City departments, and why most complaints were “unsubstantiated.”

The secrecy of the SFWP, and the alienation of its informants, were unveiled in a May 2011 ABC-7 “I-Team” broadcast, “San Francisco Whistleblower Program Comes Under Fire”; and the July 2011 Civil Grand Jury report, “Whistling in the Dark – The San Francisco Whistleblower Program.”

In September 2011, Sunshine activist Mel Shapiro won a Superior Court ruling that San Diego’s Whistleblower Program “must disclose any report of an investigation that has been substantiated.” These events prodded the SFWP to revise its 2010-2011 Annual Report on 11/22/11. Finally, all substantiated complaints were reported. However, the names of implicated City departments were not. Quarterly reports were issued and a FAQ section was added. In a reversal of previous practice, anonymous rather than identified tips were encouraged. Anonymity can isolate informants, limit follow-up contact, and lower the odds of full investigations. The number of anonymous complaints was withheld. Nothing about the 43% of complaints deemed “unsubstantiated” was disclosed.

This level of secrecy exceeds the confidentiality granted to Whistleblower Hot-Lines by California Code 53087.6(e). While the identities of whistleblowers, witnesses and subjects are protected, State law allows Programs “to issue any report of an investigation that has been substantiated, or to release any findings resulting from a completed investigation that are deemed necessary to serve the interests of the public.” Since 2009, the SFWP has denied any public interest in knowing why so many complaints are unsubstantiated. In comparison, Santa Clara County’s “24/7 Whistleblower Program” does a better job. There, the Board of Supervisors gets twice-yearly summaries of every complaint received – including unsubstantiated ones – along with investigative findings and actions taken.

State Senator Leland Yee asserts that whistleblower complaints are often settled and “swept under the rug.” Yee proposed Senate Bill 1336 in February 2012 to identify subjects of substantiated complaints, the action taken, and the outcomes of unsubstantiated allegations. Since then, SB 1336 has been eroded in committee and opposed by City auditors and Unions, among others. The clause requiring disclosure of unsubstantiated complaints was the first casualty. Disclosure of unsubstantiated complaint findings remains discretionary State-wide, and unobtainable in San Francisco.

By October 2007, the SFWP had partnered with the City’s Customer Service Center and switched its Hotline number to 311. The sixty call-takers at the 311 Service Center receive over 7,000 calls daily. Though call-takers are trained to forward whistleblower tips to the SFWP website, they also forward minor complaints about botched City services. After the transition to 311, the average number of SFWP complaints zoomed from 263 to 391 annually — a 49% increase. Was this dramatic rise due to service complaints or whistleblower tips?

Since 2009, the SFWP has masked complaints coming from the 311 Service Center by combining them with tips that whistleblowers log directly onto the SFWP website. Importantly, the number of citizen service complaints, versus employee whistleblower tips, is no longer reported. To preserve its focus and to inform the public, the SFWP should track true whistleblower tips separately from service complaints, as before.

The SFWP has expanded “confidentiality” beyond the realm of public interest, best practices, and even its own past practices.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed DPW wrongdoing. Contact: DerekOnVanNess@aol.com

October 2012

Retaliation

By Dr. Maria Rivero and Dr. Derek Kerr

In 2012, the Association of Certified Fraud Examiners issued a “Report to the Nations on Occupational Fraud and Abuse.” They found that 5% of a typical organization’s revenue is lost to fraud. Government is especially vulnerable, rating second among 23 industries surveyed. Whistleblowers catch three times as many frauds as any other form of detection. Most whistleblowers are employees.

Meanwhile, the Government Accountability Project, an advocacy group providing legal aid to 5,000 whistleblowers over 35 years warns:

“You will surely suffer some level of harassment or retribution for blowing the whistle because bureaucracies instinctively tend to eliminate anything perceived as a threat. Academic studies confirm that more than 90% of whistleblowers report subsequent retaliation.”

Other surveys in various settings show retaliation rates between 22% and 38%, but experts agree that reprisals have increased despite laws prohibiting them. Studies show that retaliation is more likely when the reported wrong-doing involves losses over $100,000 and when the misconduct is routine. Although San Francisco’s Campaign & Governmental Conduct Code includes “Protection of Whistleblowers,” City whistleblowers are praised on paper but punished in practice.

On 7/24/2012 the City agreed to pay over $1 million to settle two whistleblower retaliation lawsuits. As reported in the May 2012 Westside Observer, 911 Call-Center supervisor Maura Moylan, and dispatcher Anne Raskin, reported supervisory misconduct within the Department of Emergency Services in 2009. Reprisals ensued and escalated. Unaware of the City’s Whistleblower Program (SFWP), they consulted a lawyer. They sued in Federal Court in October 2010 (Case # C10-04700-TEH). The City Attorney fought them every step of the way. Almost two years later, a Jury awarded them $262,000 for retaliation and harassment. The post-verdict settlement, including legal fees, was $762,000. Not included is the cost of City Attorney hours in this 2-year legal battle.

Similarly, Recreation & Parks Ranger Michael Horan received $250,000 for the retaliation he experienced. According to Matt Smith’s 7/19/12 article in The Bay Citizen, Horan had exposed favoritism and overtime abuse in the Park Patrol Division since 2008. The City’s Human Resources Department failed to fix the problems, so he went to the federal Equal Employment Opportunity Commission. The EEOC substantiated his complaints, but the City Attorney dismissed them. Horan sued in Superior Court in September 2009 (Case # CGC-09-492910), then Federal Court (Case # CV-10-01383). As in the Moylan & Raskin case, the City Attorney vigorously defended management wrongdoers against employee whistleblowers.

Perhaps retaliation was better handled when the Whistleblower Program was in the Mayor’s Office from 1989 through 1993, and initially managed by Edwin Lee. In November 1993, voters passed Prop K that authorized the Ethics Commission to investigate retaliation claims. On 2/24/1997, Lee advised the Ethics Commission that “Cases involving retaliation were treated as a high priority” – even though he had been the sole investigator. As of 12/17/2001, Ethics had reviewed 7 retaliation complaints over 6.5 years. As of July 2012, Ethics has dismissed all of approximately 17 whistleblower retaliation claims it received.

Retaliation, a primitive form of damage control, is directed at whistleblowers by their bosses. Yet, the SFWP sends most complaints right back to the department named in the complaint. Until May 2012, the SFWP didn’t even bother to track retaliation complaints. Instead, the SFWP washed its hands of retaliation by making dead-end referrals to the Ethics Commission. While monitoring retaliation would help, “reported cases of retaliation are a small fraction of actual reprisals” says Mat Stephenson, partner in the Employment Law firm of Kochan & Stephenson. The trauma of retaliation pushes most informants to give up and move on without protesting. Therefore, unethical organizations consider retaliation “cost-effective” according to Stephenson. The few who seek redress are often dismissed as “disgruntled.” Until they sue. Although potential costs for the City are significant, the Controller’s Office refuses to conduct a whistleblower retaliation survey.

Exposing wrongdoing and retaliation by a City department often points to systemic failures of governance. Wrongdoing may be entrenched in the work-place culture, or serve a hidden political agenda. Whistleblower Programs that tackle such problems threaten powerful entities and become vulnerable to retaliation themselves. They face smears, bullying, funding cuts, staffing changes, or having their mandate clipped. In other words, they are treated just like whistleblowers. The Board of Supervisors’ purge of the City’s Sunshine Task Force in May 2012 shows how risky addressing misgovernment can be. However, Programs have ways to dodge political reprisals.

Setting up a sham Whistleblower Program avoids the risks of exposing corruption. Fake Programs can lure and lull informants so they don’t air complaints publicly. The 2011 Civil Grand Jury alluded to such charades in its investigation of the SFWP: “A poor or mediocre Whistleblower Program — one that seems to be something it is not — is perhaps worse than none at all.” It’s noteworthy that in the four fiscal years between 2004 and 2008, the average annual budget for the SFWP was $256,300. In the 4 years from 2008 to 2012, under Controller Ben Rosenfield, the average annual budget plunged to $134,079, a 48% drop. That’s enough to prop up a façade, not to maintain a top-notch Program.

Colluding with other City agencies to dismiss whistleblower claims also reduces the risk of exposing misgovernment. Both the Controller’s Whistleblower Program and the Ethics Commission refer serious complaints to the City Attorney. The City Attorney has dual loyalties — and a conflict of interests. Along with reviewing allegations of governmental wrongdoing, the City Attorney has a duty to defend City officials accused of misconduct. Despite claims of erecting “ethical walls,” the likelihood of mutual back-scratching is high. Instead of protecting whistleblowers, the City Attorney is the main adversary, the reason retaliation persists.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed DPW wrongdoing. Contact: Derek Kerr

September 2012

Secret Investigations

By Dr. Maria Rivero & Dr. Derek Kerr

In their 2011 report “Whistling in the Dark – the San Francisco Whistleblower Program” the Civil Grand Jury warned:

“From a policy perspective, there are several issues. Most glaringly, once a complaint is filed, the whistleblower is from that point forward, essentially shut out of the entire process and left to navigate a “black hole” where further access to the investigation is denied.”

City whistleblowers should know that most complaints to the Controller’s Whistleblower Program (SFWP) are referred back to involved departments for investigation. The SFWP has masked the number of such referrals by asserting that complaints were “investigated or referred for investigation.” However, the 2010-2011 Civil Grand Jury revealed that the “majority of the investigations were performed by the departments listed in the complaint rather than the Whistleblower Program investigators.” Belatedly on 11/22/11, the SFWP admitted to a “majority” of cases being referred – without giving the number. The Jury concluded; “The investigation of whistleblower complaints is not independent when performed by the targeted agency or department.”

Other Whistleblower Programs are more open about the work they do. For example, the Oakland Fraud, Waste and Abuse Prevention Hotline “independently conducted 34% of the investigations.” The Los Angeles Program claims it investigates 36% of complaints independently. In San Francisco, the percent may be too small to mention.

Referring investigations to departments is reasonable for minor complaints. Indeed, most complaints received by the SFWP are gripes about City services. SFWP reports from 2006 and 2007 show that barely one-third of complaints were true whistleblower reports about fraud, waste and abuse of City resources. The Civil Grand Jury also found that just 36% were true whistleblower tips in 2009 and 2010. Nevertheless, some of the more serious complaints went back to the targeted departments. In fact, even “Medium-Risk” complaints involving sums of $10,000 to $50,000 and/or mid-level managers were sent back to the named department. The SFWP asserts that referring complaints leverages investigative resources, and that they oversee results. But conflicts of interest are also leveraged when departments probe their own misconduct.

It was the Civil Grand Jury that revealed the Department of Public Health received the most whistleblowers complaints. Since 2009, the SFWP ceased naming implicated departments, perhaps hiding wrongdoing and mismanagement. Had the SFWP conducted a Best-Practices survey, it would know that the Los Angeles Fraud Hotline identifies each department in a substantiated complaint. Further, when the LA Program refers a complaint back to a targeted department the outcomes are recorded as “Substantiated” or “Not Substantiated” or “Not Investigated” for every department. The public has a right to know these department-specific findings.

Instead, the SFWP conceals outcomes of departmental investigations by lumping all the results together. There is no way to identify City departments troubled by misconduct or mounting complaints. We don’t even know how many complaints are outsourced for investigation. What’s also kept secret is whether the SFWP conducts any investigations. The number, seriousness and outcomes of SFWP investigations should be reported, as well as those performed by targeted departments.

Such disclosures are needed if the SFWP reveals whistleblower identities upon referring complaints to City departments. In their Quarterly Report of January 20, 2012 the SFWP warned, for the first time, that they may disclose tipster identities “…to take any enforcement action” and “also can release information as part of a referral when referring any matter to another City department…” This “information” may include clues about the whistleblower. In other words, there is no confidentiality within the City network.

Conversely, records requests by whistleblowers whose complaint investigations are “closed” without explanation are denied because, “Whistleblower Program practices do not permit a complainant to waive anonymity or confidentiality for the disclosure of investigation work-product.” The SFWP has also refused to return documents that informants submitted in support of their complaint. The reason given is “to protect whistleblowers.” By this reasoning, delays, inaction and lost-records may be disguised as “work-product.” Further, the SFWB has rendered itself immune from Performance Audits, since the City’s Director of Audits, Tonia Lediju, also runs the Whistleblower Program.

Leaks in the investigative pipeline are likely to spring up during the Preliminary Review.

That’s when the SFWP screens tips for jurisdiction, “risk of loss to the City,” and level of management involved. Within five days, informants supposedly receive an acknowledgement from the SFWP. But when we reported misappropriations from the Laguna Honda Hospital Patient Gift Fund in March 2010, it took three weeks to get a response – and then only because we followed-up. We were told that the SFWP was still “determining jurisdiction.” What kind of discussions – and with whom – would take three weeks? Even with “High-Risk” complaints like ours, the SFWP review process may include contacting the Director of the implicated department. When “High-Risk” or “Medium-Risk” complaints loop back to the involved department, informants should be notified and checked for retaliation. But that doesn’t happen.

The SFWP has yet to conduct a Best Practices Survey. The Government Accountability Project (www.whistleblower.org), a national whistleblower advocacy group, compiled a set of international Best Practices. One standard is a “Credible Corrective Action Process.” This principle allows whistleblowers to comment on the charges that merited an investigation, and on whether there has been a good-faith resolution. Whistleblowers are often the most knowledgeable and concerned witnesses. The failure of the SFWP to engage its informants discredits their investigations. Whistleblowers should not be silenced in the resolution of the alleged misconduct they risked their careers to challenge.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health. Contact: DerekOnVanNess@aol.com

July-Aug 2012

Can We Trust the Controller’s Whistleblower Program?

By Derek Kerr, MD and Maria Rivero, MD

Whistleblower Programs need solid tips from insiders who confront wrong-doing. Two major barriers for tipsters are the belief that nothing will be done, and the fear of retaliation. Trust is essential. Do whistleblowers trust the SF Controller’s Whistleblower Program (SFWP)?

Not Mercedes Hernandez-Bran. In 2004 she became the first SFWP whistleblower. As Director of Human Resources for the Juvenile Probation Department, she reported misspent funds, conflicts of interest, altered time-sheets, and the shredding of public documents. Once the City Attorney heard about her concerns, she was locked out of her office and her computer was seized. The scandal was widely covered by the Press. But like other high-profile whistleblower cases, it was invisible in the SFWP annual report. Hernandez-Bran explained:

“I reported the Chief Probation Officer for collusion and corruption, and I was laid off as a result. But not before being harassed and investigated… There are so many cases of City employees who have filed whistleblower complaints and then were targeted for layoffs. No one trusts this program. The City Attorney protects officials first, then acts against the informant.”

Another half-a-dozen cases of retaliation were described in the July 2011 Civil Grand Jury report, “Whistling in the Dark – The San Francisco Whistleblower Program.” Controller Ben Rosenfield was not moved. To date, no whistleblower retaliation surveys — or even satisfaction surveys — have been conducted, though the Controller employs dozens of auditors and analysts.

Short of conducting a survey, whistleblower trust can be estimated from the number of complaints sent by insiders — City employees. The SFWP withholds this information. However, Oakland’s Fraud, Waste and Abuse Prevention Program reported that in 2011, “City employees generated 44% of the reports…the first time that the volume of tips…from the public exceeded those tips from employees.” A decline in employee tips should be reported to taxpayers. But the SFWP has a reason to overlook employee participation.

Over the past three years, complaints to the SFWP fell from 465 to 386 to 365, a 22% drop. Over the past 9 months, only 252 complaints came in. At this rate the fiscal year could end with another significant plunge. Likely, employee complaints are falling, too. This steady decline in participation has yet to be addressed.

A trustworthy program that focuses on serious wrongdoing will attract serious tips. From 2004 to 2007 the SFWP tried to do that. True whistleblower tips, about fraud, waste and abuse of City resources, were separated from gripes about shoddy City services. Consistently, however, true whistleblower complaints stayed around one-third of the total. Starting in 2007, whistleblower tips were merged a larger group of minor complaints pouring into the 3-1-1 call line. This mix created the illusion that the SFWP was doubly-busy responding to “whistleblower complaints” and checking malfeasance. Further, dispersing whistleblower tips in a sea of service complaints obscures the drop in claims from whistleblowers when they lose faith.

In 2011, the SFWP resumed sorting out high-value tips about major wrong-doing. The SFWP ranks incoming complaints as High-Risk, Medium-Risk and Low-Risk – depending on “the risk of loss to the City.” But the resulting risk-profiles are kept secret. High-Risk complaints involve high-level City officials and a risk of loss of $50,000 or more. Medium Risk complaints implicate mid-level managers. Low-Risk complaints involve regular employees or a sum under $10,000. Note how the risk of loss to whistleblowers has no place in this calculus.

Obviously, the higher the risk for the City, the higher the risk of buried complaints, whitewashed investigations, and retaliation for whistleblowers. Although the Civil Grand Jury found that “only high-risk” complaints were investigated by the SFWP, they did not confirm that all of them were. Potential whistleblowers need assurance that serious complaints are actually received, investigated and substantiated, not just “referred and closed.” A Whistleblower Program that acts on high-value complaints will be trusted with more of them. That’s another reason why the SFWP should immediately contact whistleblowers who submit High-Risk and Medium-Risk complaints — and again within six months — to check if they saw results or retaliation.

A program that protects tipsters will get more who identify themselves. A major provider of whistleblower hot-line services, The Network, Inc., found that requests for anonymity dropped from 78% to 48% over 20 years, as employees became comfortable with reporting. The San Diego Fraud Hotline reported that only 46% of callers in 2011 requested anonymity. In fact, the SFWP’s own 2008-2009 mid-year report disclosed that just 43% of callers were anonymous. A rise in anonymous complaints signals mistrust. Since 2009, the SFWP has withheld the rate of anonymous tips.

More important, substantiated complaints show that something is being done. This number was never disclosed — until 11/22/11 — after the public uproar over the Civil Grand Jury investigation. That’s when the SFWP revised its 2010-2011 annual report and showed that only 16% of all complaints were substantiated. During this period, the Los Angeles program substantiated 23% of all complaints, while San Diego sustained 33%. Notably, both programs had investigated a greater share of complaints; 72% for LA and 100% for San Diego, compared to 59% for SF.

In the last half of 2011, the SFWP substantiation rate climbed to 21% of all complaints. This increase is linked to a surge of investigations into 71% of all complaints, compared to an average of 51% for the prior 3 years. Something is being done – but by whom? In our next column we will explore how most complaints sent to the SFWP are quietly referred back to the same City departments named in the complaints.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health Contact: DerekOnVanNess@aol.com

June 2012

Whistleblower Advocates

Watchdogs Beware

By Derek Kerr, MD and Maria Rivero, MD

On 4/11/12 a Federal Court jury awarded $262,000 to whistleblowers Jane Doe and Anne Raskin for retaliation by the City’s Department of Emergency Management.

In 2010, Doe and Raskin exposed a variety of workplace irregularities at the 9-1-1 Call Center that resulted in shunning by coworkers, invasion of privacy, intentional infliction of emotional distress, and retaliation. The City was held liable for “a failure to prevent harassment and retaliation.” ¹ This is not an isolated case.

In a scathing report titled “Whistling in the Dark – The San Francisco Whistleblower Program”, the 2010-2011 Civil Grand Jury (CGJ) noted that exposure to “bad press” and “liability from costly lawsuits” occurred “when legitimate complaints are ignored or dismissed.” Although the CGJ was unable to determine the actual cost to the City because of confidentiality conditions of the settlements, it determined: “A program that properly addresses and resolves allegations of malfeasance ‘in house’ can significantly reduce the City’s exposure.” The City’s Whistleblower Program was failing. (2)

Mayor Art Agnos started the Whistleblower Program in 1989. It fell under the Ethics Commission from 1993-2003, where it withered. After a Port corruption scandal, 71% of voters approved Proposition C that added a City Services Auditor (CSA) function to the Controller’s duties, including a reinforced Whistleblower Program. Prop C also granted the CSA 0.2% of the City budget, now $12 million annually, to audit departments, monitor City services, oversee contracts and manage the Whistleblower Program. A selling point was the claim that the Controller’s Office was politically “independent.”

Despite new management, the Controller’s Whistleblower Program has been hobbled by recurrent staff turnover, few investigators, bureaucratic secrecy, fealty to power, disregard for whistleblowers, and lax oversight.

Ironically, although the Controller’s CSA conducts innumerable audits and reviews, the Whistleblower Program itself was never assessed — until the CGJ report in July 2011. Predictably, Controller Ben Rosenfield pooh-poohed its findings. Those who exposed misgovernment — professional journalists, whistleblowers and Sunshine advocates — praised the report. Of the 14 recommendations issued by the CGJ, most were rejected by City Hall. However, in a nod to transparency, the 2010-2011 Annual Whistleblower Program report was revised. It now lists all substantiated complaints, rather than a trivial “sample.” The time taken to resolve investigations was also added.

The “Controller’s Whistleblower Complaints Program” is a misnomer. Barely one-third of the cases are true whistleblower complaints involving fraud, waste and abuse. The program primarily serves City officials, rather than whistleblowers or the public. It was designed by high-level officials to address low-level misconduct. By keeping tabs on whistleblowers and City hot-spots, embarrassing events are contained. With complaints involving high-level City officials, the program falters. These are some of the reasons why no performance audit had ever been performed, and why a Best-Practices survey has yet to be done. Although an informal survey was sent out, to date no Whistleblower Satisfaction Survey has been performed. Despite the clear connection between whistleblowing and retaliation, neither the Whistleblower Program nor the Ethics Commission bothered to track retaliation. Whistleblowers have generally felt ignored, or treated like burdens and threats.

The Controller’s Office has the money to do a better job, if public service is the goal. Instead, the Controller issues hundreds of thousands of dollars each year to private contractors under the guise of “audits” or assessments of City services. Often, such contracts support under-performing departments. Prime examples are the 2010 contract to Lumetra HealthCare Solutions for $250,000 on behalf of Laguna Honda Hospital. In 2009, Davis Ja & Associates received a $1.2 million contract on behalf of Community Behavioral Health Services. That contract was revoked and the City recovered some $430,000 after whistleblowers reported a conflict of interest. Since 2005, several contracts valued over $700,000 were awarded to Health Management Associates (HMA) to help the Department of Public Health (DPH). Meanwhile, whistleblowers reported that then-Health Director Dr. Mitch Katz was paid $10,000 a year by HMA from 2008 through 2010 – while HMA was working for the DPH. Although the Whistleblower Program received 365 complaints last year, the majority were referred back to the targeted departments for investigation, as reported by the Civil Grand Jury.

Oversight of the Whistleblower Program was also faulted by the Civil Grand Jury. The Citizens General Obligation Bond Oversight Committee (CGOBOC) has no staff or resources to monitor the Whistleblowers Program. Its sole “Committee Assistant” is the Controller’s Executive Secretary who is paid by, and reports to the Controller. Public comments critical of the Whistleblower Program are censored from its Minutes. E-mails to cgobo.committee@sfgov.org are triaged by the Controller’s staff. CGOBOC members receive no training in whistleblower issues, and get all their information from one source – the Controller. In effect, CGOBOC is dependent upon the agency it oversees.

“Confidentiality” keeps a veil of secrecy over program operations, leaving little room for citizen oversight. Whistleblower Program reports provide scant information, making it difficult to judge whether the program is effective, impartial, or even trusted, by complainants.

In this column we plan to explore the performance of the City Whistleblower Program, local whistleblower issues, and public action to correct misgovernment. Input from City whistleblowers and good government advocates would be greatly appreciated.

Dr. Maria Rivero and Dr. Derek Kerr were senior physicians at Laguna Honda Hospital where they repeatedly exposed wrongdoing by the Department of Public Health Contact: DerekOnVanNess@aol.com

1. Case 3:10-cv-04700-TEH

2. www.sfsuperiorcourt.org/Modules/ShowDocument.aspx?documentid=2884

May 2012

Laguna Honda Doctor Files Wrongful Termination Lawsuit

By Derek Kerr, MD and Maria Rivero, MD

On November 16, 2010 doctor Derek Kerr — a former physician in good standing at Laguna Honda Hospital for over 21 years — filed a lawsuit in SF Superior Court, alleging retaliatory termination of employment.

His lawsuit names as defendants the City and County of SF; DPH director, Dr. Mitch Katz; Laguna Honda Hospital's executive administrator, Mivic Hirose; LHH's current medical director, Colleen Riley; and others.

Photos: Dr. Maria Rivero, Dr. Derek Kerr

The five causes of action:

• Deprivation of his First Amendment freedom of speech activities;

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

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

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

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

Kerr filed two whistle-blower complaints in September 2009 with his co-worker, Dr. Maria Rivero. On March 2, 2010 Kerr and Rivero filed an unrelated complaint with the SF Whistleblower Program administered by the City Controller's office, alleging mismanagement and misappropriation of funds in LHH's patient gift fund, specifically identifying Ms. Hirose as a responsible party, possibly among others.

Three days later, Kerr was informed on March 5 he was being laid off and that his employment with the City would be terminated effective June 11, 2010.

On March 15, 2010 Kerr then filed a Whistleblower Retaliation Complaint with the SF Ethics Commission alleging that his termination was in retaliation for the multiple ethics complaints he had previously submitted.

Kerr's lawsuit seeks unspecified monetary damages for lost pay, general damages, punitive damages, and other relief a court may deem proper, among other penalties.

Kerr is being represented by the SF law firm Kochan & Stephenson, which has previously represented other Laguna Honda Hospital employees, including a case recently settled against the City for $268,452.

A case management conference regarding Kerr's lawsuit has been set for March 18, 2011.

December 2010