SFERS Protest
Pickets at SFPOA headquarters protest the replacement of Herb Meiberger and SF's Retirement Fund's hedge fund flimflam
City’s Retirement System Funds Newspaper Looters
Heath Freeman
Heath Freeman, president of the "vulture" hedge fund,
Alden Global implicated in the deaths of over 3,000 news-
paper jobs, a "partner" of Cerberus financed by SFERS funds.
Photo courtesy of The Daily Beast

With a trail of "News Deserts" left behind, Cerberus rakes in profits from SF Taxpayers

Public employee pensions are of public concern. While employees pay into retirement plans like the San Francisco Employee Retirement System (SFERS), the bulk of the contributions come from the employer – the taxpayers. The third source of revenue is income from investments recommended by SFERS’ Chief Investment Officer and approved by the 7-member Retirement Board.

Chief Investment Officer William Coaker Jr.
SFERS Chief Investment Officer William Coaker Jr.

When investment returns decline, contributions from the employer, and to a lesser extent the employees must make up the deficit. Much attention has been focused on this expanding “unfunded liability” as the number of retirees grows, benefits are boosted, and investment income declines. As of 2020, SFERS is just 83% funded, representing a shortfall of $5.4 billion. Ultimately, the City’s General Fund will have to cover the deficit. In other words, when pension funds are underwater, taxpayers get soaked. Several SF Civil Grand Juries have addressed this precarity; 2008-09 “Pensions Beyond Our Ability to Pay”, 2009-10 “Pension Tsunami: The Billion Dollar Bubble”, and 2016-17 “The San Francisco Retirement System: Increasing Understanding and Voter Oversight.”

Unfunded liabilities impose performance pressure on most pension funds, including SFERS. That pressure to earn more can lead to undue risk-taking and moral hazard. Some of those risks and hazards are social, not just financial.

Socially Responsible Investments

Hence, another important public interest is the nature of the investments secured by public employee retirement plans. SFERS abides by an “Environmental, Social and Governance Policy” that guides socially-responsible investing practices. That policy requires SFERS officers to monitor their investments to ensure that “they deliver positive environmental or social impacts.” So, SFERS has divested from tobacco, Sudan, firearms and thermal coal. In a nod to climate change, it aims for a “net zero emissions” portfolio by 2050. The 2020 SFERS Annual Report also cites an intention to “increase racial and gender diversity on corporate boards.”

quotes

As of 2020, SFERS is just 83% funded, representing a shortfall of $5.4 billion. Ultimately, the City’s General Fund will have to cover the deficit. In other words, when pension funds are underwater, taxpayers get soaked.”

SFERS CEO Jay Huish
SFERS CEO Jay Huish

Deviating from Social Responsibility

However, SFERS  invests in private equity firms and hedge funds that may not be socially responsible - and may even be predatory, grasping revenues regardless of social impacts. No qualms about making a fortune from the misfortune of others.

In 2014, outrage flared because the financial advisors SFERS had hired to provide advice on hedge fund investments were themselves operating a hedge fund – a potential conflict of interests. That same year, the International Business Times also reported that Retirement Board member Wendy Paskin-Jordan placed her own money into a private fund that managed SFERS money – an apparent violation of SFERS rules and another potential conflict of interests. Patrick Monette-Shaw probed her other investments which included hedge funds.

In 2017 City employees and retirees protested SFERS’ plan to invest 15% of its holdings in hedge funds. Opposition to hedge funds centered on their opacity, rapacity, high fees and modest returns. At the time, the huge California Public Employees Retirement System or CalPERS had divested from hedge funds. In response to public pressure, the SFERS Retirement Board offered to cut its hedge fund investments to 5%. One long-time Retirement Board member, Herb Meiberger, a CPA and university Finance Professor, valiantly opposed any hedge fund investments. But he lost his seat to retired police officer Al Casciato, who backed hedge funds along with several City unions. Subsequently, SFERS’ Chief Investment Officer William Coaker, Jr., who earned $703,000 in pay and benefits in 2019, boosted hedge fund investments. He also increased private equity assets at the expense of public equities.

Sylvia Alvarez Lynch
Protester Sylvia Alvarez-Lynch

According to the 2020 SFERS Annual Report, SFERS holds $26 Billion in assets. Of these, 21.3% or $5.5 billion are invested in Private Equity while 14.2% or $3.7 billion are allocated to a murky “Hedge Funds/Absolute Return” category.  Interestingly, in fiscal year 2019-20, SFERS’ private equity investments earned just 6% compared to 7.9% from its public equity holdings. Meanwhile, its Hedge Fund/Absolute Return portfolio lost 3.2%.

Although SFERS discloses the returns from these investment categories, its annual reports do not reveal what private equity firms and hedge funds did with the money SFERS allocated to them. The identities of these private companies can only be obtained by requesting SFERS’ biannual investment reports.

SFERS Feeds Vulture Funds

In a must-read piece by investigative journalist Julie Reynolds, she notes that the private equity firm Cerberus Capital Management has received “tens of millions” from SFERS. Records obtained by the Westside Observer show that SFERS has committed $570 million to Cerberus since 2006. Somewhat less, but still hundreds of millions has actually been transferred from SFERS to Cerberus as of December 2020.  Why is that a problem? Well, Reynolds found that Cerberus owns Tier 1 Group, the company that trained 4 of the assassins who dismembered Washington Post journalist Jamal Khashoggi.

 Further, Cerberus specializes in acquiring distressed businesses and has partnered with - and financed - the notorious hedge fund, Alden Global Capital.

Cerberus Management
A trio of really swell guys. Lee Millstein, President, Daniel Dejanovic, European Real Estate and Ron Rawald, Sr. Managing Director, top Cerberus Capitol Management team

Alden is widely reviled as a “vulture hedge fund” that gobbles up distressed newspapers, saddles them with the debt Alden incurs to buy them, draws out management fees, sells off their assets, decimates their newsrooms, cuts salaries and ramps up workloads. While claiming to salvage insolvent newspapers, Alden tries to extract 20% in profit margins from newspapers that had managed with 10%. If that fails, Alden shuts down the paper and sells off its real estate and property. Plus, Alden fights off bids from philanthropic buyers who want to preserve struggling newspapers rather than strip them for parts.

All this pillaging eviscerates the news gathering and distribution functions of acquired newspapers. By draining the lifeblood of hundreds of community newspapers, Alden creates “news deserts” across the nation. Locally, Alden bought and butchered the venerable but bankrupt Oakland Tribune in 2016, reducing it to a weekly insert in the consolidated East Bay Times. Ongoing staffing cuts precipitated a 2018 protest by Pulitzer Prize-winning journalists from Alden’s consolidated Bay Area News Group.  Alden also owns the San Jose Mercury News.

Herb Meiberger
Protesting Commissioner Herb Meiberger

Resistance from members of The NewsGuild – Communications Workers of America has focused on exposing and petitioning against Alden’s parasitic enterprise. But other hedge funds are joining the feeding frenzy. For example, Chatham Asset Management bought the Sacramento Bee last year. As newspapers struggle with financial reversals, hedge funds are taking over the industry and sacrificing Journalism on the altars of profit and greed.

Shadow Banks Fuel Predation

Vulture funds like Alden are enabled by loans from “shadow banks” like Cerberus. Shadow banks are largely unregulated finance companies that offer loans and credit outside of the constraints of the commercial banking system. Beyond fueling leveraged buyouts, shadow banks sparked the 2008 Financial Crisis by taking on outrageously-leveraged debts. Taxpayers bailed them out. So it’s jarring that SFERS has invested so much in Cerberus. However, SFERS informed the Westside Observer that it has not invested directly in Alden Global Capital.

Derek Kerr
Protester Derek Kerr

SFERS’s investment policy is to “maximize the expected return of the fund at an acceptable level of risk.” While collecting returns from its investments with Cerberus, SFERS is sponsoring social harms that conflict with its Environmental, Social & Governance Policy. Dismembering newsrooms and depriving communities of critical information is a risk that should be unacceptable in San Francisco. SFERS should assess the ethics of Cerberus’ funding of Alden Global Capital - and divest from firms driven by a “greed-is-good” mindset.

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

September 2021

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Commissioners React

The Fix Is In: Herrera’s SFPUC

A Public Farce—the Blow by Blow

Few doubted that political intrigue propelled their deal. Less well known is how the SFPUC’s own search for a new General Manager (GM) was upended.

Check it out

Pacific Rod & Gun Club

Swings Not Guns for Lake Merced

From 1934 through 1994 lead pellets as shot resulted in about 27 tons of lead in the lake per year. Lead pellets and targets containing polycyclic aromatic hydrocarbons ...

Check it out

Great Highway

Open the Great Highway

Social distance necessity has subsided, but a closed-door effort never to reopen the Great Highway fostered by the Bicycle Coalition and the allied groups inveigh willing collaborators.

Check it out

NASA images

All Wet

Water users aren't out of the woods ... recycling, purification, groundwater, maybe desalinization, and conservation schemes are coming—guess who pays?

Read More ...

Wanna Cabin in Yosemite? Fuggedaboutit.

Cottages

Perks, Privileges and Mistrust in the “City Family”

Former City Attorney Dennis Herrera runs an SFPUC immersed in mistrust. Can he impose fiscal and ethical discipline?

Check it out

shoplifting

Chron & Ex Say Only Six Shoplifts a Day in SF?—LOL

On the day of Neilson’s 6-per-day article, a guard at one Walgreens caught 23 shoplifters by himself—he averages 15 shoplifts per day

Check it out

Employment ladders
SFMTA: Culture of Silence and Racial Disparities
Jeffrey Tumlin
Jeffrey Tumlin is Director of
Transportation of the San Francisco
Municipal Transportation Agency. He
oversees the Municipal Railway (Muni),
parking, traffic engineering, bicycle and
pedestrian safety, transportation
accessibility, and taxi regulation

The Municipal Transportation Agency (SFMTA), with 6,000 employees, has been a hotspot for complaints about workplace bullying, sexual harassment and racial discrimination. These complaints were rarely substantiated by Human Resources investigations and occasionally bungled spectacularly, leading to protests and a flurry of lawsuits.

The Black Employees Alliance (BEA) sunshined records of SFMTA disciplinary actions from July 2020 through June 2021 and found that 49% of disciplinary actions targeted Black employees who comprised just 28% of the workforce. All other racial groups experienced fewer disciplinary actions than their proportion of the workforce. Blacks – including women, bore most of the severe penalties like dismissals and lengthy suspensions. In some cases, Black employees seemed to receive harsher discipline than others for similar violations. The Westside Observer examined these records.

quotes

... while Black employees comprised 15% of the workforce, they accounted for “36% of dismissals, 24% of probationary releases and 38% of medical releases.”

In an email to City Hall and local Unions, the BEA concluded; “These results reflect a culture that is rooted in, and is comfortable functioning in a White supremacist, and anti-Black…mindset. It reflects an obsessive preoccupation, hyper-surveillance, over-scrutinizing, and over-enforcement of rules and policies against Black employees…while offenses for White employees are addressed with much less severity.” Further, SFMTA’s disciplinary practices were deemed “eerily similar” to the post-Emancipation Black Codes and the Peonage system wherein “laws were enacted which specifically targeted Black people.” Included was this link to the documentary “Slavery by Another Name.” Frustrated by persistent disparities, the BEA filed a discrimination complaint with the federal Equal Employment Opportunity Commission in July.

Chart of Disciplinary Actions

The Gathering Storm

Before the SFMTA shot to the forefront, citywide concerns about racial inequities had roiled City Hall. Then-Supervisor London Breed sponsored a 5/17/17 Government Audit & Oversight Committee Hearing on “the glaring disparity between African-American employment and the rest of the City.” Thanks to lobbying by SEIU 1021, “Workplace Discrimination and Complaints” was the subject of a packed 9/19/18 Board of Supervisor’s Hearing (Item 6, at 58:30). Then-DHR Director Mickie Callahan proudly reported that 15% of City employees were Black – exceeding the 4.6% regional labor market availability. Unaccounted for in those figures was the out-migration of Black residents due to soaring housing prices discrimination and other hardships. Booing filled the chamber when she noted that 15% of Black City employees accounted for 36% of terminations. Worse, out of 416 racial discrimination claims over 3 years, merely 5 (or 1.2%) were substantiated. That day, Mayor London Breed issued an Executive Directive for the City’s Department of Human Resources to boost diversity recruitment, expand implicit bias training, and check the fairness of all disciplinary actions.

Maya Angelou

Maya Angelou Remembered
generally as a famed author
and poet, Maya Angelou’s
first job was as a streetcar
conductor in San Francisco
in 1943. When she initially
tried to apply for the job,
no one at the Market Street
Railway office would give her
the job application. After pro-
longed persistence, a man-
ager approached her and
allowed her to apply. She
became the first Black
female streetcar operator in
San Francisco.

 Weeks later, Breed responded to employee appeals by appointing retired HR specialist, Dolores Blanding, as “ombudsman” to assess complaints of discrimination, the levels of discipline administered, and SFMTA’s “inadequate” Human Resources division. That happened during the crumbling tenure of former SFMTA Director Ed Reiskin. Blanding’s January 2019 report diagnosed a “culture of silence”; “You see bad behavior but you do not say anything or get involved because you do not want to be seen as a troublemaker or limit your own career opportunities.” Poor communication between SFMTA’s HR department and the City’s Equal Employment Opportunity division, where discrimination claims are adjudicated, left employees frustrated; “Meanwhile, real toxic workplace and hostile work environment issues were not addressed quickly.” Blanding recommended improving; HR communications and visibility, diversity recruitment, the tracking of complaints and disciplinary actions, and “Respectful Workplace” training so that managers would “say something, do something” about improper conduct. She urged hiring an ombudsperson – independent from HR – to monitor complaints and upgrade the work culture.

Audley Cole

Audley Cole The first Black
operator ever hired by Muni,
in 1941. He passed the civil
service examination by leaving
his race off the form. After he
was hired, white operators
refused to give him the train-
ing necessary to start work.
Fourteen operators chose to
be suspended rather than train
him, and the operators’ union
threatened a $100 fine against
any operator who trained him.
The one white man who tried
to train him was beaten so
severely he was hospitalized.
After three months, he finally
received training directly from
the head of Muni’s training
department and spent his time
at Muni fighting for fairer treat-
ment for future Black
employees.

Toward Reconstruction

From April 2019 through October 2020, HR expert Dante King served as SFMTA’s ombudsperson, struggling solo to advance diversity and equity. Momentum for this task accelerated in July 2019 when City legislation documented the City’s history of structural racism. The text noted that while Black employees comprised 15% of the workforce, they accounted for “36% of dismissals, 24% of probationary releases and 38% of medical releases.” The Ordinance founded the Office of Racial Equity under the Human Rights Commission. This new agency mandated that City departments develop Racial Equity Action Plans to address racial disparities.

On 10/15/20 the Board of Supervisors’ Government Audit & Oversight Committee held hearings on “African-American Economic Mobility” and “Advancement of Racial Equity.” Several department heads were interrogated. SFMTA’s current Director, Jeffrey Tumlin (at 2:16:00) vowed to “collect data fearlessly and present it transparently” to help “dismantle systemic racism.” Tumlin explained that 97% of all discipline cases involve transit operators, 40% of whom are Black. Interestingly, by focusing on that population - rather than the 28% of Blacks within the whole SFMTA - the disparities were less prominent. For example, the 40% of Black transit operators received 49% of disciplinary actions for safety violations and 46% of non-safety reprimands. Unlike other SFMTA employees, transit operators are subject to safety, attendance and service delivery standards set by the State and the City Charter. Those rules increase the likelihood of penalties for infractions.

However, bias tended to creep in with customer complaints. Although Blacks were underrepresented at higher levels of management, 3 out of 16 members (19%) of Tumlin’s Executive Team identified as Black. Two months later, the SFMTA issued its comprehensive Racial Equity Action Plan.

Quarterly reports on SFMTA’s progress toward racial equity are presented to the SFMTA Board of Directors. At the 11/17/20 SFMTA Board meeting (Items #11, #12) Director Tumlin sought to defy a key recommendation of the Blanding Report by placing the Ombudsperson under the HR department. Employee representatives from the Black, Asian, Latinx and allied-White Affinity Groups objected. They emphasized that the Ombudsperson was designated to be independent from HR, reporting directly to him. Tumlin conceded. Presentations revealed that; Whites comprised 14% of the workers versus 50% of senior managers, job satisfaction scores among line staff averaged 3.2/5 versus 4/5 for managers, and that 12% of Black women transit workers received 20% of discipline. Then, in December 2020, the Board of Directors issued a lengthy Resolution condemning anti-Black racism - without detailing SFMTA’s current disparities.

 At the 8/3/21 SFMTA Board meeting (Item #15 at 5:34:25) the impressive scope of SFMTA’s equity commitment emerged. Recommendations from the Gould Report, a July 2021 independent review of Equal Employment Opportunity procedures by Stanford professor William Gould, were being incorporated. In addition to recruiting a new Ombudsperson and boosting HR staffing, an Office of Race, Equity & Inclusion had been created under Josephine Ayankoya - with a $3.9 million budget. Employee Affinity Groups were granted $372,000.

Potential Pitfalls

Among SFMTA’s many excellent equity initiatives, one is potentially precarious – loosening minimum job requirements to increase diversity. Unless carefully calibrated, such barrier-removals could yield under-performing and demoralized employees.

SFMTA’s reckoning with racial inequities has spawned lots of deliberative groups, both institutional and employee-driven. Among the latter are a #MeToo group, the BEA and several racial Affinity Groups. Such assemblies provide support, solidarity and mobilization. However, group deliberations can devolve into “Group Polarization” whereby the members move toward positions more extreme than their initial inclinations. This phenomenon can generate divisive tensions that impede institutional consensus-building. Polarization and alienation can be mitigated by information-sharing and engagement by management. SFMTA intends to apply the feminist “Margin to Center Theory” to draw the most marginalized groups toward centers of decision-making. However, decisions are bedeviled by different data sets, numbers and denominators, resulting in disparate interpretations - and disputes. Reaching consensus will require mutually-adopted statistics.  

Disparities are not always due to bias. Variations in interest, ability or effort can also produce different outcomes. Uprooting racial discrimination is imperative. And, there’s room for more restorative and corrective measures instead of punitive ones. In order to maintain quality services, discriminating between competent and inept employees should not be based upon - or stifled by - their identities. 

 

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

August 2021

Commission Reaction
In the midst of a carefully planned executive search, the Commission reacts to President Maxwell's humiliating capitulation.
The Fix Is In: Herrera’s SFPUC
Dennis Herrera.
Dennis Herrera

“It's Your Choice:” Behind the Scenes—the Blow by Blow—of a Public Farce

Consternation! That was the general reaction to Mayor London Breed’s April 26, 2021 “nomination” of City Attorney Dennis Herrera to succeed Harlan Kelly as General Manager of the SFPUC. While vowing to provide “clean, innovative and decisive leadership,” Herrera has no experience managing a complex water, power and sewer utility with a $1.5 billion budget. Few doubted that political intrigue propelled their deal. Less well known is how the SFPUC’s own search for a new General Manager (GM) was upended.

Former GM Harlan Kelly resigned in late November 2020 after being charged by the US Attorney for corrupt practices. Michael Carlin became Acting GM in December. By January, the SFPUC had asked the City’s Department of Human Resources (DHR) to solicit proposals from executive search firms and select capable outfits. That was done to avoid conflicts of interest since SFPUC’s own managers would likely apply for the GM position. DHR labored to identify 4 suitable firms out of 9 applicants and presented an 8-step Executive Recruitment Process at the January 26th SFPUC meeting (Item 7).

Search Steps
Human Resources set the course for a professional search for a suitable Director

At the February 23, 2021 SFPUC meeting, Commission President Sophie Maxwell indicated that The Hawkins Company “seems more diverse with women and people of color” although their professional fee was the priciest at $50,000. The Commissioners voted to hire Hawkins at a cost “not to exceed $100,000.” So far, so good.

Wresting Control of the Process

quote marks

Few doubted that political intrigue propelled their deal. Less well known is how the SFPUC’s own search for a new General Manager (GM) was upended.”

Trouble surfaced at the May 11th SFPUC meeting (Item 9 at 2:00:34). President Maxwell prefaced her update on the search for a General Manager with a jarring oration on “leadership;” “Colleagues, I want to say that I am very proud to be a part of the leadership of this agency. The leadership starts at the top of course, with the Mayor.” Her ominous pep-talk referenced “leadership” 7 more times. Then came the point; the Mayor really wanted Herrera.

Once the Mayor announced her choice, the City Attorney’s Office recused itself from advising the SFPUC on the recruitment process. Again, this avoided a conflict of interests since City Attorney Herrera, was in the running. Robert Coelho, a Santa Clara County attorney was inducted to tell the commissioners that the City Charter authorizes them to “nominate” candidates, but the Mayor makes the selection. Laughably, the 5 Commissioners – all of whom are appointed by the Mayor – were assured that they were free to choose the next steps. Despite Commissioner Maxwell’s glorification of leadership, the commissioners’ sunken faces conveyed disempowerment.

The Mayor’s public announcement of her preferred candidate sabotaged the recruitment process and deterred qualified candidates from applying. It was a done deal. The efforts to avoid conflicts of interest were for naught. Worse, a bigger conflict of interests emerged since Herrera was investigating corruption swirling through the Mayor’s entourage. On this glaring complication, the commissioners kept mum. After noting the “political reality” involved, outside attorney Coelho comforted the commissioners with a fallacy; “You control the process.” That “control” simply meant that the Mayor had to choose a winner from names submitted by the Commission. So, would the commissioners nominate Herrera or risk seeing their non-Herrera nominees rebuffed by the Mayor – along with their own re-appointments to the Commission? “The choice is yours” intoned Coelho.

Complying with a Rigged Process

...

Had the executive search proceeded without the Mayor’s meddling, it’s unlikely that Dennis Herrera would have been deemed a viable candidate. Nevertheless, the Commission gamely decided to conduct a Kabuki selection process. After all, many hours of professional time had already been expended plus fees for The Hawkins Company. So, the Commission told Hawkins to continue gathering feedback from stakeholders to determine the qualifications, experience and vision of the “ideal candidate.” But the die had been cast and the SFPUC cast aside. Candor vanished - except for a dozen public comments at the May 25th SFPUC meeting (Item 10) that challenged the selection process and Herrera’s installation.

One month after Mayor Breed nominated Herrera, the SFPUC distributed the Hawkins survey to its 2,300 employees. The memo asked for “input about the qualities and priorities of the new General Manager.” Many workers viewed the survey as pointless. Only 398 (17%) responded. The Hawkins Company also interviewed the commissioners, SFPUC executives, and outside stakeholders. The results of this “Stakeholder Engagement Process” were presented by Ms. Brett Byers on 6/8/21 (Item 17).

Sophie Maxwell
President Maxwell

It began with a feel-good recitation of SFPUC’s “Outstanding Reputation & Amazing Staff.” As for “Opportunities,” the SFPUC was “in a position to rebuild public trust.” Due to executive longevity and “insularity,” “the SFPUC could benefit from having a different perspective joining the Executive Leadership level.” One finding presaged a sinking ship scenario; “upcoming retirements in senior management positions could lead to a talent deficit.” Slyly, nothing was reported about the desired qualifications, experience and priorities of the next GM – a key goal of the Hawkins contract. The fee charged for this skimpy product – minus the actual recruitment of candidates – awaits a response to the Westside Observer’s records request.

quote marks

The City Attorney has aggressively defended officials who retaliate against whistleblowers. Herrera has demonstrated ardor, albeit costly, with this task. Recall the $7.3 million awarded to “sewer-gate” whistleblower Joanne Hoeper, Herrera’s former Chief Trial Attorney”

Finally, on 6/13/21 the Commission disclosed that after a Closed Session interview, it had “unanimously voted to forward the name of Mr. Dennis Herrera for the position of SFPUC General Manager.” So much for “leadership.” As for transparency, the commissioners did not disclose whether anyone else applied or was considered for the job. In a bombastic June 17 Press Release, Mayor Breed praised the “thorough work” in the review process “led by the 5-member oversight commission.” Next, Herrera must sign a contract with the SFPUC, resign as City Attorney, get officially appointed by Breed and confirmed by the Commission.

Why Herrera?

Dennis Herrera is a savvy manager. Unlike true outsiders, he won’t face a harrowing learning curve in the midst of a scandal or get easily bamboozled by the old guard. Unlike SFPUC insiders he’s untainted by the current corruption and at little risk of future prosecution.

Herrera has been a key player in the “Our City, Our Power” campaign to buy out PG&E and develop a City-owned electrical grid. His heading the SFPUC could advance that agenda without delay. Though touted by the Mayor as a “great champion in…protecting our environment,” his appointment is vehemently opposed by prominent environmental organizations. They argue that his May 13th, 2021 lawsuit against the State Water Resources Control Board pushes “irresponsible” water management that endangers the Tuolumne River, its fish and wildlife. Further, some decry Herrera’s failure to consult with environmental groups before filing his lawsuit – and before deciding to run the SFPUC. Herrera sought to justify his lawsuit in a Press Release and Chronicle Op-Ed. Peter Drekmeier, from the Tuolumne River Trust, penned Counter-arguments in the June 2021 Westside Observer.

Darker Perspectives

It's important to note that the downfall of the SFPUC’s Harlan Kelly and other City department heads was not solely due to the FBI and the US Attorney. The feds relied on whistleblowers who repeatedly reported misconduct. Now there’s a firestorm of scandals, one of which is destabilizing the SFPUC. Herrera has been tapped to put out the fire. Essentially, there are 3 ways to stabilize the agency; 1) root out corruption, or 2) contain the investigations, and 3) root out whistleblowers.

The City Attorney has aggressively defended officials who retaliate against whistleblowers. Herrera has demonstrated ardor, albeit costly, with this task. Recall the $7.3 million awarded to “sewer-gate” whistleblower Joanne Hoeper, Herrera’s former Chief Trial Attorney.

Preston: Letter to Herrera
Supervisor Dean Preston's inquiry to Herrera

Herrera recently reveled in “putting the city’s top watchdog at the head of the PUC.” But as Jo Hoeper warned in a February 2020 Letter to the Editor; “who will watch the watchdog.” Our “top watchdog” has trailed the FBI in investigating municipal corruption. Such investigations are awkward for insiders because corruption permeates the City Family. With Herrera atop the SFPUC while his former subordinate attorneys probe SFPUC corruption, the intensity of the investigation could be modulated (i.e. skeletons kept interred). Supervisor Dean Preston has formally inquired (see page 9) about this potential conflict of interests. By yielding his elected position and agreeing to work under the Mayor and 5 commissioners, how likely is it that Herrera will expose mayoral or Commission lapses? Similarly, coaxing Herrera out of his legal post and into the SFPUC allows Breed to appoint a new City Attorney. Whomever she appoints will be disinclined to bite her hand – even if they prevail in the election that is required to keep the job.

Multi-level machinations could be at play. Astute observers like Tim Redmond of 48 Hills, Joe Eskenazi of Mission Local, and City Hall insiders have speculated about a cascade of political rearrangements depending on whom Mayor Breed appoints as City Attorney.

Unfortunately, hinky maneuvers have implanted SFPUC’s next General Manager. Fortunately, so many eyes and ears now converge on the agency, from the FBI to whistleblowers and journalists, that Dennis Herrera’s performance will be closely monitored - and reported.

                              

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

July 2021

Yosemite Cottages
Want to stay in a private cottage in Yosemite? Sorry, “City Family” only.
Perks, Privileges and Mistrust in the City Family

The Westside Observer recently received a trove of City documents that shine a light on SFPUC’s Executive Retreats, Employee Appreciation Events and its Hetch Hetchy recreational facilities.

 

Happy Campers

The SFPUC owns a recreational area with cottages for overnight stays at the Hetch Hetchy Reservoir. The facilities are made available to SFPUC staff, elected officials and officers from agencies that work with the SFPUC. Each quarter, the SFPUC issues an “O’Shaughnessy Dam Recreation Report” identifying who reserved cabins, for how long, and how much they paid. Surprisingly, these pre-COVID records show that a minority of reservations were for “official business.” Most were for recreation - enjoyed by SFPUC managers and commissioners as well as current - and even former City officials. These coddled campers brought entourages of friends and family to bask in nature for very modest fees. However, rank and file workers say it was “next to impossible” to get reservations and that “cronyism was a status symbol.”

quotes

Former City Attorney Dennis Herrera now runs an SFPUC immersed in mistrust. His challenge will be to impose fiscal and ethical discipline upon a branch of the City Family accustomed to perks, privileges and alleged self-dealing”

Interestingly, SFPUC’s quarterly reports show that some of these privileged vacationers had “NOT PAID” their fees by the time the tallies were compiled. They included; Rec. & Parks Director Phil Ginsburg + 11 guests owing $950 for a two-night stay in June 2018, SFPUC Asst. General Manager Barbara Hale + 8 guests owing $1,800 for a stay in May 2019, SFPUC Commissioner Ann Moller Caen + 15 guests owing $930 for three nights in June 2019, retired Senator Art Torres + 2 guests owing $500 for two nights in June 2019, SFPUC Engineer Joan Ryan +14 guests owing $1,050 for three nights in June 2019, and Ed Harrington + 19 guests owing $2,100 for a stay in June 2019. Hopefully, these easy-going debts were eventually paid.

Plentiful Executive Retreats – Persistent Mistrust

The Hetch Hetchy cottages are occasionally used for official business, like SFPUC’s annual Executive Retreats. Managers use Executive Retreats to keep up with trends, wrestle with emerging challenges and reset priorities while boosting team cohesion. They hire contractors to organize and facilitate these gatherings. The June 2018 Retreat, whose theme was “What does it means to be an innovative utility leader?,” incurred an $11,931 bill from RMC Water & Environment-Lotus JV for “SFPUC Strategic Plan Implementation.” The June 2019 Retreat, dedicated to “prioritizing a framework for both current and emerging policy issues,” was facilitated by Ashton 212, LLC for $9,745.

But 2019 was unusual because SFPUC had already held 2 Executive Retreats, in January and March. In part, these earlier meetings dealt with the troubling results of a 2018 “Employee Engagement Survey.” This survey, newly-designed to “create a culture of listening and feedback,” was enthusiastically described to the SFPUC on March 13, 2018 (agenda item #8). But the 1,400 employee responses were mortifying. “Trust in Leadership” received the lowest score - a dismal 42%. Within that domain, just 47% of workers believed that; “The senior leaders of the SFPUC demonstrate integrity.” The statement; “senior leaders…value people as their most important resource” garnered a meager 34%.” How would the SFPUC – and the City – deal with this level of mistrust? Well, the survey results were not publicly disclosed. (The Westside Observer obtained them via a public records request.)

However, in January 2019, SFPUC’s top 9 executives did meet at Pier 1 to ponder “decision-making and accountability.” A key topic was the critical 2018 Employee Engagement Survey. That signal of worker discontent – and harbinger of mismanagement - was reformulated into the agenda item; “Moving Forward the Executive Team Brand.” A follow-up Retreat in March 2019 was deemed necessary to “create operating agreements.” These efforts to refurbish the aura of leadership failed to alleviate worker discontent. When the survey was repeated in 2019, the “Trust in Leadership” score fell to 39%. Further, just 28% of employees “noticed positive change” as a result of the 2018 survey.

Engagement Questions
The 2018 Employee Engagement Questions elicited surprising outcomes
Juliet Ellis
Juliet Ellis

The January and March 2019 Executive Retreats were facilitated by the Piras Group whose proposed fee was $15,750. Months later, another bill for $6,000 arrived. Bi-Rite Catering received $1,969 for food. None of it was pizza, the staple of most work-place meetings. Then-Assistant General Manager for External Affairs, Juliet Ellis, who earned $251,758 in 2019 ($304,910 with benefits), stood out by charging the City $124 for parking expenses. Total cost – around $23,843. Judging by the results of the above-noted employee surveys, little was gained for this price. Remedies for the executive team’s “decision-making and accountability” surfaced after the US Attorney filed subpoenas and criminal charges the following year.

Yet, the SFPUC held a 4th Executive Retreat - within 13 months. On February 21, 2020 the top brass assembled for “Diversity, Equity & Inclusion Training” at the Sunnyside Conservatory. Forefront Cultures, Inc. charged $15,000 for teaching “intercultural competence.” ReadySet, Inc. received $8,500 in facilitation fees. Bi-Rite Catering collected $464 for food. All told - $24,000.

Mitigating Employee Discontent

One way to win hearts and minds and to convey managerial benevolence is to throw a party.  In August 2019, Harlan Kelly announced the “First Team SFPUC & Employee Appreciation Picnic.” It was logistically challenging, being held at 4 separate SFPUC sites. Some 993 employees and guests signed up for the festivities. Participants were regaled with free swag, food and entertainment - except it wasn’t really free.

Spotlight Promotions, Inc. charged $3,734 for 200 “Sport-Caps - embroidered front and back,” plus $9,890 for 1,325 “Black T-shirts - 4-color front and back.” Walter Wong Construction charged $8,391 for tents, tables and chairs. Abbey Party Rents charged $12,074 for similar services while United Site Services collected $543 for restrooms and clean-up. Then came the food; Bi-Rite Catering submitted 6 bills totaling $51,699. Power Plant Supply catered BBQ and desert for $4,963, provided “custom DJ entertainment” for $1,250, plus games for $400. Arguello Catering got $3,046. Oddly, the engineering firm Woodard & Curran received $32,303 to help manage the Employee Picnics by partnering with the firm Katz & Associates that also furnished a Bounce House, Photo Booth and other amusements.  An apparent late charge from Woodard and Curran, submitted in January 2020, amounted to $6,742. In sum, the employee jamboree cost around $135,037.

Former City Attorney Dennis Herrera now runs an SFPUC immersed in mistrust. His challenge will be to impose fiscal and ethical discipline upon a branch of the City Family accustomed to perks, privileges and alleged self-dealing.

Juneteenth Inequities

juneteenth

The City’s Juneteenth holiday celebrations bypassed hundreds of City employees whose history was supposedly being recognized. In a June 21st email, the Black Employees’ Alliance (BEA) notified City Hall that it had received “a substantial number of complaints about most Black employees being required to work and not able to celebrate the holiday as stated in the Mayor’s memo.” That’s because many Black employees are considered Essential Workers. Accordingly, they were not granted time off on June 18th. Worse, dozens reported not receiving holiday wages.

Here’s the unintended inequity; “…the Juneteenth holiday commemorating the end of enslavement (forced free labor) of Black people, and the benefit of taking time off, is being primarily afforded to, and celebrated by, White and non-Black employees.”  The BEA is requesting overtime/holiday pay or another paid day off for those who had to work. In her June 19th bulletin, Mayor London Breed proclaimed; “We must demand justice and work to change the systems that have kept so many of our friends and family members pinned down….” .Having reported that the City’s benevolence was unevenly allocated – pinning some workers down without holiday benefits, the BEA awaits a response from the Mayor’s Office and the nascent Office of Racial Equity.

Acknowledgement: Thanks to the unnamed City insiders who provided guidance via tips and documents.  

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

July 2021

Captain Rainsford
Crime, Use of Force and Defunding: Taraval Police District

Data in hand, Captain Nicholas Rainsford bravely faced a crowd…of 2…then 3 people. It was Taraval Station’s first in-person Community Meeting since the COVID shutdown. Fortunately, the June 17th meeting allowed more Westsiders to participate via ZOOM. Police use-of-force and crime trends topped the agenda, followed by a generous Q&A session. Every question was answered.

The Westside Observer attended to learn more about burglaries that have increasingly plagued the Westside since the pandemic began. Cpt. Rainsford explained that “criminals adapt.” With the COVID shutdown, tourism declined and local folks stayed home. With fewer cars circulating, auto break-ins were no longer profitable. So criminals adapted by turning to burglaries. Similarly, when car break-ins were rampant, tech-savvy thieves used smart-phone apps that detect Blue-Tooth signals from nearby electronics. That made it easier to target cars containing valuable devices.

Cunning methodology also undergirds the surge in garage burglaries. First, thieves are aware that bicycles can be luxury items costing thousands of dollars. They know these high-end bikes are often kept in garages. So are expensive tools. Burglars often stake-out promising houses, streets and neighborhoods. Using battery-operated drills, they carve an opening in a promising garage door. A hooked wire is threaded through the hole. By snagging the door’s release latch, they gain entry. The pillaging takes a few minutes. Data compiled by Taraval Station shows that most burglaries occur between 2 and 6 AM. In the dark of night, residents are fast asleep and security cameras can’t capture clear images - unless aided by motion-activated lighting. By the time victims realize their valuables are gone, the culprits are long-gone - and celebrating.

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Cpt. Rainsford explained that “criminals adapt.” With the COVID shutdown, tourism declined and local folks stayed home. With fewer cars circulating, auto break-ins were no longer profitable. So criminals adapted by turning to burglaries.”

Commercial burglaries have also proliferated. Businesses without alarms, security cameras and motion-lighting are especially vulnerable. Some have been burglarized several times in one night, once the thieves realize the low risk of detection. A representative from the DA’s Office, attending the meeting remotely, disclosed that burglary prosecutions are hampered by staff shortages and record-high caseloads - 230 cases per attorney!

What is Taraval Station Doing to Curb Burglaries?

Pointing to crime prevention through public education, Cpt. Rainsford recommended checking the Taraval Station website (www.taraval.org). His weekly newsletter provides data on prevalent crimes and how to foil them. Tips and alerts are also delivered via Twitter. Taraval officers advise residents and businesses about security measures. They promote the SAFE Program (Safety Awareness For Everyone) that offers free security assessments and recommendations. Importantly, crime data is continually analyzed to identify hot-spots and recalibrate interventions. Investigators scour crime scenes for videos. If images of suspects are available, they are distributed among officers and other precincts, raising the odds that someone will identify an offender. Citizens can help by sharing their video recordings. To counter surreptitious night-time criminals, Rainsford deploys “stealth patrols” aka “Recon 101” - Marine-speak for covert reconnaissance tactics. Otherwise, maintaining a visible police presence in vulnerable locations deters criminals.

Shoplifting, of the most brazen sort, is also being tackled. A wave of Walgreen’s closures led to meetings with Walgreen executives and a paralegal firm to figure out how to prepare cases for prosecution. Rainsford attributed some of the shoplifting scourge to California Prop 47. That law rendered rip-offs below $950 into petty thefts – misdemeanor offenses. That means the perpetrators, if caught, get a citation rather than jail time. So, “If there are no consequences, why should they stop.”

Because these thefts are hit-and-run, perpetrators are seldom apprehended. Thieves who spend an afternoon stealing $700 of merchandise here, $500 there, and $800 in a third location merely commit 3 misdemeanors. SFPD is working with the DA’s Office to bundle separate misdemeanor cases into one felony violation that throws serial shoplifters behind bars. To succeed, police need reports and good suspect descriptions, as described in every Taraval Station newsletter. While some victims feel that notifying the police is useless, Cpt. Rainsford emphasized that “knowing what’s going on” drives police work. For example, he hinted that reports of window smashings on Ocean Avenue would likely generate arrests.

Police Services Require Staffing

Cpt. Rainsford repeatedly cited how staffing and budgetary constraints impede the delivery of expected police services. Fully staffing the 3 beats on West Portal, Irving Street and Ocean Avenue as well as the 6 sector cars is sometimes thwarted by workforce shortages. He highlighted the City-commissioned but independently-conducted “Police Department Staffing Study.” This comprehensive analysis concluded that SFPD’s “patrol staffing is severely inadequate” and recommended adding 200 more officers to rectify “extraordinarily long response times to low priority calls for service.” Reassuringly, Taraval Station’s response to Priority C calls is SFPD’s speediest, at 37 minutes.

In the June Westside Observer, Patrick Monette-Shaw explored the controversy surrounding police funding and challenged the notion that the SFPD is under-staffed. Nonetheless, Cpt. Rainsford worries that the “Defund the Police” demands of a vocal minority are skewing the discussion away from what most citizens want. Because staffing and funding for community policing has reached a “critical juncture,” he encouraged more public participation as the Board of Supervisors addresses SFPD funding.

Unwarranted Deadly Force Triggers Police Budget Cuts

The excessive use of lethal force nationwide has animated mass protests, the Black Lives Matter movement, and calls to slash police budgets. Mayor Breed initially signaled her intent to shift funds from the SFPD to social programs that address the roots of crime, and to alternatives to armed policing. Alongside the “Dream Keeper Initiative” and Street Crisis Response Teams, violent crime intensified. So, her proposed $13.1 billion budget for FY 2021-22 only cut $6.2 million from SFPD’s account – less than 1% - leaving $661.7 million. This cut is attributed to replacing Airport police with Sheriff’s deputies. Next year’s SFPD budget is currently granted $689.1 million – a 4% increase. However, through July, the Board of Supervisors will be grinding out the final budget under a flurry of “Defund the Police” demands. That may be why Cpt. Rainsford came prepared to explain how police use of force is now carefully applied, supervised and investigated - all documented in a detailed 18-page handout.
 
The chart below shows that Taraval Station is among the lowest users of force, accounting for less than 5% of such incidents.

...

Citywide, there has been a steady, 68% decline in SFPD’s use of force since 2016 when the US Department of Justice recommended reforms. Meanwhile, crime mounts. That may be why concerns raised during Taraval Station’s Community Meeting tended toward the use of force - by criminals.

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

June 23, 2021

travelers
Black Employees Slam White Privileged Telecommuting

This February, the Westside Observer reported on Black employees who are suing the City for racial discrimination. Now, Black workers allege that some managers are being granted exorbitant telecommuting or “work-from-home” privileges. Unlike rank and file workers who must stay put and risk their health by providing direct services during the COVID-19 emergency, some executives have been working remotely and safely—from out of state.

Kimberly Ackerman
Kimberly Ackerman

On April 24, the Black Employees Alliance (BEA) wrote to SFMTA Director Jeffrey Tumlin, Human Resources Director Carol Isen, the Civil Service Commission, Mayor London Breed and the Board of Supervisors, complaining that; “Kimberly Ackerman, SFMTA Human Resources Director, has relocated back to the state of Virginia (her home state) to care for one of her family members who suffered illness, and has been working remotely from there since mid-2020.  Put another way, the SFMTA Human Resources Director has been allowed to work out of state for more than seven months …”

The BEA’s concern is that Ms. Ackerman’s remote work deviates from the City’s telecommuting  program. That policy does not allow caring for a dependent during work hours. Moving out of state is barred because employees “must be available to work at the regular worksite on telecommuting days if needed.” Neither does Ackerman’s work arrangement fit the federal  Family and Medical Leave Act, whereby employees are granted 3 month-leaves to care for a child or ill relative, or 6 ½ months to care for a disabled military relative. California’s Paid Family Leave program is limited to 2 months. In either case, employees on leave do not continue working.

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… even though employees of color tend to be under-represented in jobs that can be performed remotely. What is unjust is if already-privileged managers exploit telecommuting to dodge their Disaster Service obligations.”

City’s Telecommuting Scandal

The City has a long-standing work-from-home program. Following the declaration of a COVID-19 Emergency in March 2020, the Department of Human Resources (DHR) issued an “Interim COVID-19 Telecommuting Program Policy.” This emergency addendum increased remote work options in order to facilitate workplace social distancing per public health guidelines. However, some managers apparently took advantage of the relaxed telecommuting policy—by moving out of state. That spares them from serving as Disaster Service Workers – a City employee requirement. It also defiles the “leadership by example” mantra and “leadership competencies” promulgated by City departments. Frontline workers noticed and grumbled.

Accordingly, on 4/23/21 the DHR updated the Interim COVID-19 Telecommuting Policy with a key revision; “Employees may not remotely perform their City job from outside of the State of California … There may be limited circumstances where an employee may receive approval to work remotely from out-of-state for a brief, defined period of time; however, such remote out-of-state telecommuting requires approval by both the employee’s Appointing Officer or designee and the City’s Human Resources Director or designee, and the request must be supported by compelling business reasons, an explanation of limited family health circumstances, or other critical need. Any employee currently working remotely from out-of-state must return to performing all remote work from within the State of California by no later than September 1, 2021.”

The next day, the BEA reported that Ms. Ackerman’s prolonged relocation to Virginia countered City policy. The BEA sought disclosure of her Telecommuting Agreement—and pointedly asked if such expansive accommodations were available to other employees.

Then on May 5th, DHR director Carol Isen sent an intriguing “Revised COVID-19 Interim Telecommute Policy” to all employees. It seemed to respond to the BEA complaint by re-iterating the out-of-state prohibition; “Over the last year, some employees relocated and are now performing City work remotely from outside of the State of California. This practice will be expressly disallowed for several reasons, including the proper and legal collection of taxes, ability to respond as a DSW (Disaster Services Worker), and the City’s basic operational needs.” What seemed like a crack-down preserved the September 1st return-to-office deadline, thereby extending out-of-state work privileges by 4 months.

Kimberly Ackerman
Jonathan Rewers

That same day, SFMTA’s absentee HR Director Kimberly Ackerman devised her own “Workplace Re-Entry Update” memo, announcing in part; “The SFMTA is planning for onsite returns for specific work functions starting September 2021 but there is no established goal to have all telecommuting SFMTA staff fully back onsite by September 2021.” Seemingly, wiggle-room was added.

Challenging Unfair Telecommuting Privileges

The Black Employee Alliance pounced on Ackerman’s message. In a May 7th email to SFMTA brass and City Hall, it declared; “City leaders have violated City policy and abused their power.” The BEA asserted that other City executives were working out-of-state, including; Justine Hinderliter, the Public Utilities Commission HR-Director (Minnesota), Trent Rhorer, Human Services Agency Director, and Jonathan Rewers, Acting SFMTA CFO (New York). Another source confided that Eric Sandler, SFPUC’s CFO, has been telecommuting from Michigan since mid-2020.

Eric Sandler
Eric Sandler

The Westside Observer contacted each named manager for comments. Only HSA’s Trent Rhorer responded; “I have NOT traveled out of state” during the pandemic, but spend “3 days every 8 weeks” in Los Angeles. In response to our inquiry about the absenteeism of HR Director Ackerman and CFO Rewers, the SFMTA Media Office wrote; Like other City employees, most SFMTA office workers have been required to work remotely throughout the pandemic. There was no ban on out of state work. Some employees, for various reasons, may have been out of state and working remotely. The City did not affirmatively ask where employees were working or centrally collect that information. Now, as we prepare to return to the workplace, the City has affirmatively decided to prohibit out of state remote work, and set a date of September 1, 2021 for employees to come into compliance. SFMTA managers are, and will continue to be, in compliance with the City’s telecommute policy.” Similarly, the SFPUC confirmed that “some employees are working remotely from out of the state”—including CFO Sandler and HR Director Hinderliter. The SFPUC has tightened its telecommuting policy, stressing the mandate to serve during local disasters.

The Westside Observer asked the Department of Human Resources for records showing the number of telecommuters outside California, the duration of their remote work, and their Telecommuting Agreements. Astoundingly, DHR replied “No responsive records.” Perhaps this lack of monitoring enabled a telecommuting free-for-all.

Black Employee Alliance Objections

Justine Hinderliter
Justine Hinderliter

The BEA’s objections to out-of-state telecommuting arrangements are informative; “These leaders have modeled behavior that is contrary to City policy and the commitment they made … as Disaster Service Workers. If one does not live in the state, one cannot be deployed in the case of actual emergencies. These leaders have been unavailable to participate in, or respond to Disaster Service Worker requirement efforts; and have actually circumvented it by moving out of state.”

“DHR Director Carol Isen has in turn legitimized bad behavior by creating a policy now, that allows for these leaders to return to the state of California, by September 1st, 2021. This provides these leaders with the optimal benefit of remaining out of state for another four months. We are appalled that the City would allow most of its leadership, who are predominantly White, and again are the highest paid, to vacate residency in California, and work from other states for more than 6 months. We believe this is the epitome of White privilege, and it reinforces the reality that White people do not have to follow the rules, because the rules are made by White people predominantly, who break the rules, and then create policies to legitimize poor judgment, and egregious behavior. It also underscores the … scarcity of corrective and disciplinary actions taken against White, and non-Black employees who violate city policy. We want to amplify the point that this benefit has not been widely available to … predominantly BIPOC (Black, Indigenous, People of Color) employees … who have been in the trenches during the entire pandemic.”

Entitled Managers of All Stripes

Viewed solely through a racial lens, these cases could be attributed to White privilege. Another view is that folks at the top of organizations, regardless of race, feel entitled to harvest perks not available to their subordinates. This broader perspective advances multi-racial solidarity. The ongoing corruption scandal roiling City Hall shows that grasping misconduct transcends ethnicity.

The City’s standard Telecommuting Policy clearly states; “Telecommuting is a privilege, not a right.” Eligible employees must be self-motivated with independent, knowledge-based jobs that aren’t location-bound. That does not necessarily mean the policy is unfair, even though employees of color tend to be under-represented in jobs that can be performed remotely. What is unjust is if already-privileged managers exploit telecommuting to dodge their Disaster Service obligations. Therefore, these revelations and inquiries by Black employees are important and should be addressed in good faith - without retaliation.

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

May 21, 2021


car burgler
Surging Westside Burglaries

Among the few blessings emerging from the COVID-19 shutdown has been a drop in auto break-ins. That’s because tourists stayed away and fewer residents were driving around town. Unfortunately, criminals adapted by shifting to residential and commercial burglaries. Plus, they even improvised cunning techniques for garage intrusions. With so many people hunkered down at home, the risk of “hot prowls”, wherein burglars invade occupied premises, increased. Citywide, burglaries in 2020 rose by 52% compared to 2019. Worse, just 13% of burglaries were solved in 2020, falling to 9% this year.

The 2020 burglary rate on the Westside seemed to ascend similarly, increasing by 38% since 2019. But that rise is misleading because the 2019 burglary rate had been unusually low. In fact, Taraval Police District data show that fewer burglaries were reported in 2020 than in 2017 or 2018. So 2020 didn’t bring a record torrent of burglaries to the Westside as auto break-ins receded.

chart
Source: Taraval Police Station

Despite these fluctuations, Westside residents have been steaming about the unabated burden of property crimes. As the Westside Observer reported, Sunset residents launched an anti-crime uprising back in May 2019, when the burglary rate was relatively low. This year, however, we have a true and alarming surge in residential and commercial burglaries. The Taraval Police Station recorded 210 burglaries in the first 4 months of 2021 compared to 110 cases for the same period last year. At this near-doubling rate, we could see well over 600 burglaries this year. Worse, the 2021 clearance rate for Taraval District burglaries is merely 6%.

Community Battles Burglaries and Law-Breaking
The Taraval Police Station, under Captain Nicholas Rainsford, has an excellent website. It provides relevant crime statistics and expert advice for preventing burglaries, garage intrusions, bicycle thefts, auto break-ins and package thefts. A new section, with Chinese translation, explains hate crimes and how to report them. Available on request is a newsletter – in 100 languages, with updated crime reports and crime-fighting tips.

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Nobody wanted to defund the police. All supported the deployment of Street Crisis Response Teams to address behavioral disturbances that do not require armed officers. The consensus was that community organizing is essential to deter crime and maintain safety.”

Stop Crime SF, is a volunteer-based non-profit dedicated to reducing crime, victim advocacy, and holding the criminal justice system as well as public officials accountable. Helmed by Westside residents Joel Engardio and Frank Noto, Stop Crime SF has 1200 members and is affiliated with neighborhood associations across the City. Signing up is easy, yielding an informative newsletter and various opportunities to contribute to public safety and criminal justice reform.

On May 13th, Westside neighborhood groups including SHARP (Sunset Heights Association of Responsible People) and the Golden Gates Heights Neighborhood Association sponsored a virtual meeting (start at 18 minutes) on residential burglaries. The audio-only version is available here. Moderated by Sally Stephens, the speakers included Furlishous Wyatt, Security Service Manager for SF-SAFE (Safety Awareness for Everyone), Lt. Clayton Harmston from the Taraval Police Station, Attorney Nancy Tung from Stop Crime SF, and D-7 Supervisor Myrna Melgar.

Mr. Wyatt shared a shocker: half of residential burglaries are enabled by unlocked doors and windows. He reviewed security enhancements like motion-sensitive lighting, alarm systems, covered garage door releases, solid-core doors with dead-bolt locks and 180 degree viewers, and video surveillance. He recommended keeping address signs visible to assist first responders. SF-SAFE provides free residential security assessments on request.

 

Lt. Harmston reported a 91% increase in burglaries compared to the first 4 months of 2020. Meanwhile, auto-break-ins dropped by 32%. Taraval Station’s 86 patrol officers are deployed according to crime trends in the district. Plain clothes officers are using bait cars and bikes to counter break-ins and thefts.

Supervisor Melgar said that her aide, Lila (Lila.Carrillo@sfgov.org), handles public safety issues and welcomes community input. As part of the Participatory Budget Program, her office offers grants from $10,000 to $25,000 to community organizations working to improve public safety. Money is available to purchase items like security cameras and for volunteer training.

 

Ms. Tung emphasized the importance of keeping the police, DA, Public Defender and judges accountable. Stop Crime SF volunteers provide a “Court Watch” service to ensure that victim rights are respected. She advocated for neighborhood cameras and adequate investment in the SFPD.

During the Q&A session, the panelists discussed the logistics of garage door break-ins, the influx of burglars from the East Bay, the DA’s focus on diversion rather than just prosecution, hate-crimes, and the handling of low-level antisocial crimes. As for police reform, the panelists backed the recommendations from the Department of Justice in 2016 and the Mayor’s reform roadmap. Ms. Tung recommended more community engagement and cultural competency as well as ensuring accountability for violent offenders who target vulnerable populations like elderly Asian-Americans. Lt. Harmston described the SFPD’s focus on de-escalation, and the need for a guardian mindset to balance the warrior mindset that emerged during the War on Drugs. Supervisor Melgar favored more funding to restore the Police Academy, updated SFPD technology and evidence-based reforms.

Nobody wanted to defund the police. All supported the deployment of Street Crisis Response Teams to address behavioral disturbances that do not require armed officers. The consensus was that community organizing is essential to deter crime and maintain safety. That was also the plan 2 years ago when Sunset neighborhoods rose up to organize against crime. The pandemic jammed their momentum. Yet again, Westside residents are mobilizing to restore security.

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

May 21, 2021

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Secrets of SFPUC’s Community Benefits Program

Confidential sources sent the Westside Observer a long-sought and long-buried document related to the SFPUC’s Community Benefits Program. Shown above and available here, it’s marked “Sensitive” and “Confidential JV Board of Control Meeting Minutes – for Distribution to JV Board Members Only.” The remaining 2 pages are completely redacted. The mystery is why such records are secret.

The 2/26/19 document summarizes a meeting between officials running SFPUC’s Community Benefits Program and officers from AECOM/Parsons. The latter is a joint venture of 2 major infrastructure consulting firms with a $150 million contract to manage the City’s $6.9 billion Sewer System Improvement Program from 2011 through 2026. This “JV” or Joint Venture Board meets with SFPUC brass at SFPUC headquarters on Golden Gate Avenue - essentially an SFPUC meeting.

Dark Venture Board Meetings

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Yet, when SFPUC watchdogs, the SF Labor Council and the Marina Times requested these meeting records, they were stone-walled, told that the SFPUC did not have them, or that AECOM/Parsons said “no.” ”

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Yet, when SFPUC watchdogs, the SF Labor Council and the Marina Times requested these meeting records, they were stone-walled, told that the SFPUC did not have them, or that AECOM/Parsons said “no.” The Sunshine Ordinance Task Force was notified in February 2019, but no formal complaint or hearing materialized. Representatives from the Building and Construction Trades Council approached Supervisor Gordon Mar, alleging that SFPUC’s Community Benefit Programs “use construction industry workforce training agendas…for the primary purpose of administering ‘slush-funds’ via ‘pay-to-play’ contract bidding arrangements.” After Mar sent a Letter of Inquiry, SFPUC’s Acting General Manager, Michael Carlin, asked AECOM/Parsons for the minutes of one 2019 meeting. The just-released, heavily-redacted copy has folks wondering what’s being concealed?

Encouraging Community Benefit Plans

When the SFPUC requests bids for contracts worth $5 million or more, applicants are encouraged to submit a Community Benefits Plan along with the usual technical and financial data. That’s because SFPUC’s Community Benefits Policy adopts a “triple bottom line,” balancing economic, environmental, and social equity goals. Submitting such plans show that bidders intend to be “good neighbors” to the communities impacted by their proposed construction projects. For example, contractors can promise to give money to community non-profits, donate volunteer hours to schools, support pre-apprenticeship training programs, or furnish technical assistance to small businesses. For AECOM/Parsons, its $150 million contract included a $1.5 million donation toward community benefits.

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 Community Benefit Plans are worth 5% of the points in the SFPUC’s scoring system for evaluating bids. Interestingly, the SFPUC uses 2 separate panels to assess bids; technical experts award up to 85 points for the technical presentation while “social impact experts” award up to 5 points for the good neighbor proposals. The remaining 10 points relate to cost controls assessed by top executives.

This system was described at the SFPUC meeting of 11/10/20 (Item 8 at 1:52). Former SFPUC General Manager, Harlan Kelly, opened with an impassioned defense of the Community Benefits Program. Program Manager Tracy Zhu reported amassing $35 million in pledges from 84 contractors who were “invited” to provide community give-backs. Ivy Fine, Director of the Project Administration Bureau, emphasized that offering community benefits is “optional.” However, bidders who don’t offer them lose 5 points.

Fine highlighted “checks and balances to prevent undue influence.” For example, General Managers do not sit on Community Benefit review panels and “no contributions go to the SFPUC, its employees, or other City departments.” Further; “Proposers independently find and solicit the non-profit organizations and schools that they will utilize to deliver their social impact commitment.”  Plus, proposers “independently decide their…internal systems to track, report and hold themselves accountable.” Uh…maybe.

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SFPUC Influences Community Benefit Plans

SFPUC’s detailed Community Benefits Program Policy (page 10) shows that it exercises considerable control over the proposers’ and contractors’ community benefit pledges. The SFPUC’s External Affairs Division, formerly led by Juliet Ellis, now under Masood Ordikhani, determines the community benefits goals, submits contract language on community benefits, participates in pre-bid discussions with proposers, selects the community benefit review panel, “orients” the panelists, reviews the proposals, “finalizes” the community benefit language in the contract, then meets with the successful contractor to “discuss” its community benefits plan, timeline and reporting. Mandated for AECOM/Parsons, were quarterly reports, quarterly in-person meetings with Community Benefit overseers, plus “stand-alone annual reports.” The Westside Observer requested copies of these reports and awaits SFPUC’s response.

Further deriding the professed “independence” of involved contractors is an 11/28/12 memo from Juliet Ellis to AECOM/Parsons, cc’d to Harlan Kelly. Titled “Scope of Services for Community Benefit Commitments,” it mandates; “AECOM/Parsons JV shall develop the Community Benefits Plan and Timeline in collaboration with the Assistant General Manager for External Affairs (then Juliet Ellis) to ensure that all of the deliverables…are aligned with SFPUC’s priorities and broader Agency-wide community benefits strategy.” Some SFPUC insiders believe this exacting process ensures profits for politically-connected non-profits.

Art of the Deal or Pay-to-Play

Misgivings surround the way community beneficiaries are chosen and how contractors recoup their donation expenses or get rewarded for them.

SFPUC emails obtained by the Westside Observer show that Juliet Ellis and her subordinates prepared a 15-minute presentation for the AECOM/Parsons Joint Venture Board. Their pitch endorsed the SF Housing Development Corporation, a Bayview non-profit that works to prevent foreclosures. SFPUC’s then Community Benefits Director, David Gray and its Manager, Tracy Zhu “answered questions” about this intended beneficiary. “After discussion” the secretive Joint Venture Board “approved” a $100,000 donation. There’s more. 

In 2015, AECOM/Parsons surpassed its $1.5 million community benefit pact by adding another $125,000. Of that amount, $50,000 went to the Willie L. Brown Middle School.  Perhaps this 8.3% supplement reflected AECOM’s generous embrace of social equity. If so, why was the deal carved into a contract amendment as; “AECOM shall increase AECOM’s current Community Benefit obligations in the minimum amount of $125,000…in addition to the prior commitment.” The “shall” and the $125,000 stipulation suggests that the add-on was extracted rather than gifted. What did AECOM/Parsons get in return?

 A clue appears in the role-blurring between contractors and SFPUC Community Benefit officials. This phenomenon is embodied in Julie Labonte, a former SFPUC Manager who became a Senior VP with AECOM. She was hired as “Program Advisor,” serving as liaison between SFPUC and AECOM/Parsons. Labonte had an SFPUC office and email - plus an AECOM email address. Her Linked-In profile extolled how her SFPUC affiliation “guided contract pursuits that resulted in…wins worth nearly $70 million in consulting fees.” In 2018, AECOM/Parsons executives asked SFPUC to boost her billing rate to $318/hour. The SFPUC harbors many such “dual representatives.” What do taxpayers “win” in these cozy collaborations?

Nothing here prevents SFPUC’s favored community groups from reaping the spoils of community benefit arrangements. And nothing prevents contractors from compensating themselves, or being recompensed for going along. Indeed, with all the mutual back-scratching recently exposed within City agencies, it’s unlikely that successful contractors operate “independently” or altruistically.

Deeper Layers of Influence

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R. Dwayne Jones / Photo:
kilamenjaro-kilamenjaro.blogspot.com

SFPUC’s Community Benefits strategy and priorities emerge from community engagements. For example, records indicate that SFPUC’s former Community Benefits chief, David Gray, consults weekly with R. Dwayne Jones, founder of RDJ Enterprises and a horde of Bayview entities. Jones’ non-profit Southeast Consortium for Equitable Partnerships received $612,725 from SFPUC’s Community Benefit Program between July 2017 and January 2020. In turn, Jones furnished “administrative support” and “community engagement” staff.

Jones’ newsletters assert that he co-created SFPUC’s 2011 Community Benefits Policy. Previously, he had directed Mayor Newsom’s well-funded but “unfocused” and opaque Communities of Opportunity project. Subsequently, he was implicated in alleged bid-rigging at the SF Housing Authority. Yet, Juliet Ellis praised Jones as her “closest partner in the Southeast community” and a “point of pride for the SFPUC.” As the Marina Times demonstrated, this relationship influenced contractors and Joint Venture Board deliberations.  

Will the Controller’s Audit Drill for Collusion?

As the Westside Observer previously reported, the Controller’s Office has unhurriedly assigned an outside firm to audit SFPUC’s Community Benefits Program. Deputy Controller Todd Rydstrom should recuse himself from supervising this audit since he formerly served as SFPUC’s Chief Financial Officer. Unfortunately, in a 11/17/20 email titled; “Community Benefits Audit – Researchable Questions” the Controller’s lead auditor, Mark de la Rosa, thanks his staff for compiling audit questions and states; “ I’ll add to my 1:1 agenda with TLR (Todd L. Rydstrom) today and loop back on next steps.”  So Rydstrom kept a conflicted finger in the audit.

Other fingers inserted themselves. As the Controller’s Office was organizing the audit, SFPUC boss Harlan Kelly pre-emptively requested that same audit. That’s one way to control an audit’s trajectory. Similarly, Juliet Ellis, who oversaw the Community Benefits Program, chimed in to limit the audit’s “confusing” scope. That prompted Controller Ben Rosenfield to “discuss” with Rydstrom.

Could Rosenfield’s oversight eliminate Rydstrom’s potential conflict of interests? Maybe not. Records show that in 2018 alone, Harlan Kelly invited Rosenfield and family to at least 3 exclusive events; the “Black American History Gala,”  whose Treasurer was Dwayne Jones, at the SF Marriott Marquis, then a “leisurely weekend at Hetchy,” assuring that “Costs are very minimal,” and a screening of the “Black Panther” movie with a feast at the Academy of Sciences. The Rosenfields reserved 4 seats for this “awesome” movie offer.  No gifts are reported in Rosenfield’s 2018 Form-700.

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

April 21, 2021


pushing back
Slow-Walking the SFPUC Audit

In a March 24 letter from the Controller’s Office, Mark de la Rosa, Acting Director of Audits, notified SFPUC’s Acting General Manager, Michael Carlin, of an impending audit. This audit will target “SFPUC’s Community Benefit/Social Impact Partnership Program” and “assess the appropriateness and effectiveness of SFPUC’s governance and oversight of the program, including social impact partners’ program outcomes.” Although the Board of Supervisors had requested this audit back in July 2019, bureaucratic shuffling and delays almost turned it into a spectral fantasy.

quote marks

As the Westside Observer previously reported, any audit of the SFPUC by the Controller’s Office could be tainted by a conflict of interests. That’s because Deputy Controller Todd Rydstrom, who oversees the Audits Division, served as SFPUC’s Assistant General Manager and Chief Financial Officer from 2008 to 2014. The audit may well probe some of his past decision-making involving the SFPUC Community Benefits Program.”

Todd Rydstrom
Todd Rydstrom

The PUC’s Community Benefits Program “invites” would-be contractors to donate money and services to community charities and non-profits. To incentivize this philanthropy, contract bids that pledge community give-backs receive extra points. Championed by former Assistant General Manager for External Affairs, Juliet Ellis, the program has been roiled by pay-to-play allegations.

Juliet Ellis
Juliet Ellis

Following the departure of her boss Harlan Kelley, Ellis bailed out of the PUC this January - as their travel, expense and reimbursement reports came under federal scrutiny. She has since found refuge with PromisePay, a financial technology start-up that creates payment plans for folks who struggle to pay utility bills, traffic fines, child support and the like. Ironically, Ellis herself may have left the PUC with unpaid bills. Several catering outfits are reportedly clamoring to get paid for gourmet dishes that Ellis previously ordered. If confirmed, these lapses, like Ellis’s lavish $900 brunch in October 2019, reflect poorly on PUC Finance Officials who approve such expenditures.
 
Finally, the Controller’s Office has responded to the fall-out from an FBI/US Attorney investigation of the SFPUC, plus Marina Times articles like “Friends with Community Benefits,” reporting by the Westside Observer and NBC Bay Area television , as well as a whistleblower complaint dating back to January 2018, protests by the SF Labor Council, and calls for an audit by Supervisor Gordon Mar. However, this long-stalled audit entails further delays and constraints that may convert it into an archeological dig for ancient antics of long-gone culprits.

Contractual Delays and Constraints

Via a public records request, the WSO obtained a copy of the contract that awarded the SFPUC audit to Sjoberg Evashenk Consulting (SEC). The Controller’s Office indicated that it sought a “performance audit” whose “scope and objectives will be finalized at the end of the audit’s survey phase, when all of the program’s relevant risks have been identified.” What that means is unclear. Identifying “relevant risks” could impose accounting rigor or allow wiggle-room.

The SFPUC audit is one small part of a $1,737,300 multi-year, multi-audit contract issued to SEC in July 2019 - recommended and signed by Deputy Controller Todd Rydstrom. The portion allotted to the SFPUC audit – scheduled for fiscal year 2021-22 - comprises 500 hours of work, at a cost not to exceed $82,500. The final report is due by 9/30/22. That’s a year and a half away.

The contract curtails the independence of the SEC auditors. For example, section 8.1.1 states; “City shall have the option, in its sole discretion, to terminate this Agreement, at any time during the term hereof, for convenience and without cause.” As for oversight; “the Contractor’s Team shall report on its progress… tasks and deliverables for review, input, decision-making, and approval by the Controller’s Project Lead.” Specifically; “The deliverables review process may be iterative and may, at the City’s discretion, require face to face meetings of the City’s and Contractor’s Teams prior to the City’s final approval of work products and deliverables. The Contractor is responsible for submitting draft materials to the City’s Team for review and incorporating City feedback.” Another clause states; “The audit projects and scope may change, at the City’s sole and absolute discretion…” Finally; “The Contractor shall provide a draft report to CSA Audits for review and approval. CSA Audits may suggest revisions to the Contractor.” It’s perfectly reasonable oversight – and potentially censorious meddling – especially if Todd Rydstrom stays on the “City’s Team.”

  Potential Conflicts of Interest 

As the Westside Observer previously reported, any audit of the SFPUC by the Controller’s Office could be tainted by a conflict of interests. That’s because Deputy Controller Todd Rydstrom, who oversees the Audits Division, served as SFPUC’s Assistant General Manager and Chief Financial Officer from 2008 to 2014. The audit may well probe some of his past decision-making involving the SFPUC Community Benefits Program.

 Appropriately, the audit will be conducted by a qualified 3rd party. Outsourcing the SFPUC audit seems to side-step Rydstrom’s potential conflict of interests. But there are reasons to worry. For one, City consultants often serve as hired guns rather than truth seekers. Those who unearth smelly skeletons risk losing future contracts. As detailed above, the Controller’s Office is keeping a tight leash on this audit. Lastly, Todd Rydstrom’s name appears on the audit notice to the SFPUC, suggesting that he has yet to recuse himself.

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

April 8, 2021

Drugs Rolling Hill
Peacekeeping without Peace Officers

The Street Crisis Response Team

There was a time when unsettling public disturbances were addressed by calling the cops. Peace Officers kept communal peace. That formula no longer works.

 The public arena is now plagued by escalating disorder related to surging homelessness, free-wheeling mental illness and blatant substance abuse. Police precincts have been besieged by 911 call-center referrals related to homelessness and disruptive street behaviors. At the same time, policing has shifted toward a warrior mindset, becoming more militarized. Police engagements with unruly unarmed citizens too frequently end violently, sometimes with maiming or death. Nationwide, people with mental illness comprise at least 25% of police shooting fatalities despite de-escalation trainings. Accordingly, San Francisco is deploying unarmed peacekeepers to respond to 911 calls about non-violent disturbances.

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The cost for part of FY 2020-21 was $6.2 million. Next year, the bill will be around $13.5 million. What’s unclear is how the cost of SCRT services will compare to the cost of police interventions. However, a forthcoming independent evaluation of the SCRT Project may answer this question, among others."

Shifting Away From Policing

In December 2019, the Board of Supervisors unanimously approved “Mental Health SF,” legislation to overhaul the City’s mental health services. The primary goal was to provide “targeted services to those who are experiencing homelessness, mental illness, and substance use disorder.” A key component of this ordinance was a “Crisis Response Street Team” of behavioral health workers to respond to low-level, non-violent offenses that the Department of Emergency Management previously dispatched to the Police Department. The City’s General Fund - not the SFPD budget, pays for this program.

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In June 2020, Mayor London Breed announced a set of reforms that would; “fundamentally change the nature of policing in San Francisco.” Among these was “reducing the need for police to be the first responders for non-criminal situations.” That spurred the formation of the “Street Crisis Response Team.”

Guided by these directives, the Human Rights Commission sponsored a 14-member “Alternatives to Policing Steering Committee” to gather input from City departments and community stakeholders. Its webpage compiles informative presentations from the DPH and Fire Department, Behavioral Health Services, the Coalition on Homelessness, the Department of Homelessness and Supportive Housing, and the Department of Emergency Management. The Steering Committee meetings are open to the public via ZOOM.

The Street Crisis Response Team

Key Elements of Crisis Response
SF Department of Public Health

In a 3/16/21 presentation to the Health Commission, Angelica Almeida, PhD, Director of Forensic/Justice Involved Behavioral Health Services described the Street Crisis Response Team’s (SCRT) role. Its goal is to; “Provide rapid, trauma-informed response to calls for service to people experiencing crisis in public spaces in order to reduce law enforcement encounters and unnecessary emergency room use.” SCRTs arrive in emergency services vehicles, carrying a Fire Department paramedic, a behavioral health clinician and a peer counselor who provide immediate care and referral to medical or social services. Importantly, a multi-disciplinary team then provides follow-up support and stabilizing services.

The first team deployed in the Tenderloin in November, 2020. In February 2021, a second team covered the Castro-Mission area. By April, 6 teams will provide citywide services 24/7. The cost for part of FY 2020-21 was $6.2 million. Next year, the bill will be around $13.5 million. What’s unclear is how the cost of SCRT services will compare to the cost of police interventions. However, a forthcoming independent evaluation of the SCRT Project may answer this question, among others.

Communicating with mentally Ill persons
Communicating with mentally Ill persons.
Communicating with mentally Ill persons
Communicating with mentally Ill persons
Communicating with mentally Ill persons

Preliminary data show that the SCRT accepted 199 calls to 911 over 2 months (December 2020 and January 2021). Disappointingly, only 110 clients (55%) were located. Of those, 96% were homeless, either unsheltered or partially housed. Out of 110 clients, 81 were treated in the community, 19 received emergency transportation, while 10 were taken to social or behavioral settings. None of these encounters required police back-up.

The CAHOOTS Model and Other Precedents

Mobile street crisis services are not new. The pioneering CAHOOTS or “Crisis Assistance Helping Out on the Streets” program has served Eugene, Oregon for 30 years. Funded by the Eugene’s Police Department, the cost for 2 teams and vehicles is just over $1 million for FY 2020-21. A police department analysis for 2019 showed that CAHOOTS alone responded to 13,851 calls, thereby reducing police dispatches by 5% to 8%. To glimpse what San Francisco’s SCRT project may look like, see this CBS video on the CAHOOTS program.

Care system
Justice Department

San Francisco already provides street outreach services like the DPH Street Medicine program, the Mobile Crisis 5150 for adults, and the Crisis Intervention Team that helps the SFPD to de-escalate conflict situations and render support after traumatic crimes. Since 2004, the DPH has partnered with the Human Services Agency and the Public Library to mobilize the Homeless Outreach Team (SFHOT) that engages and supports at-risk homeless persons. But the magnitude and complexity of the chaotic street-scene has overwhelmed the City’s resources.

In 2018, the City launched its Healthy Streets Operations Center to coordinate multi-departmental responses and outreach directed at homeless encampments and unhealthy street behaviors and conditions. That collaborative effort faced many challenges. However, per the Mental Health SF ordinance, the current panoply of behavioral outreach services will now be overseen by a new Office of Coordinated Care. Hopefully, reinforcing and re-coordinating these services will make a difference.

So, the next time you see some poor soul screaming at the sky or crumpled in your doorway, don’t be surprised if civilians rather than cops respond to your 911 call.

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

March 25, 2021

Drugs Rolling Hill
San Francisco's Drug Crisis

Could Legalization Help Our Overdose Epidemic?

T he Tenderloin has become a scary drug bazaar. Street drugs are adulterated with fentanyl and other potentially lethal opioids. Some 697 souls died from drug overdoses last year, compared to 441 in 2019 and 259 in 2018, per the Medical Examiner’s data. The prognosis for 2021 looks grim with 61 overdose deaths this January. Emergency rooms are flooded with drug-induced psychoses, infections, traumas and non-lethal overdoses. The cityscape is marred by raving or stuporous drug users, thefts and discarded syringes. This wreckage is reminiscent of Zurich’s 1987 “Needle Park” fiasco due to laissez-faire drug policies.

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John Ehrlichman - Nixon Aide

Destructive too is the War on Drugs, perhaps cynically launched by the Nixon Administration to stifle the Black Power and Anti-Vietnam War movements. Like Prohibition in the 1920s, it has done more harm than good; criminalized hundreds of thousands — especially Black and brown persons, spawned violent police raids and gang battles, endangered public health, enriched crime syndicates and street gangs, corrupted public officials and cops, packed jails, diverted public funds into militarized police and prisons, and fueled calls to “defund the police.”  

Meanwhile, drug prosecutions detract from tackling more serious crimes. National data compiled by the ACLU shows that in 2018, there were 693,000 marijuana arrests – 90% for possession only — exceeding the arrests for all violent crimes combined. As Professor Carl Hart, a neuroscientist and drug addiction expert at Columbia University pointed out, most drug-related arrests are for simple possession. Further,”80% to 90% of people who use illegal drugs are not addicts. They don’t have a drug problem. Most are responsible members of our society…And in some cases they even become president of the United States.”

Admittedly, San Francisco fairs better. In 2006, the Board of Supervisors passed Ordinance 297-06 giving adult possession of marijuana the “lowest law-enforcement priority.” Since then, arrests for misdemeanor marijuana possession have been negligible and secondary to other charges. In 2019, former DA George Gascon expunged more than 9,000 marijuana conviction records, setting a US precedent. However, possession of other recreational drugs remains illegal. Records of those arrests endure with potentially ruinous effects

quote marks

Meanwhile, drug prosecutions detract from tackling more serious crimes. National data compiled by the ACLU shows that in 2018, there were 693,000 marijuana arrests – 90% for possession only — exceeding the arrests for all violent crimes combined. As Professor Carl Hart, a neuroscientist and drug addiction expert at Columbia University pointed out, most drug-related arrests are for simple possession.”

A Two-Pronged Intervention
This March, Supervisor Matt Haney proposed (at hour 2:52) a Supplemental Budget Appropriation to stop both the influx of fentanyl and the associated casualties. Funding would create a District Attorney-led Fentanyl Task Force and boost DPH outreach and treatment services. This two-pronged proposal indicates that the 2008 voter-approved Prop T for “Free and Low-Cost Substance Abuse Treatment Programs” hasn’t met expectations.  That was evident even before the COVID pandemic. Similarly, the “New Program” of 2019, launched by the Mayor’s Office and the DPH to “fight overdoses and deaths” has fallen short. Since 2019, the City has funded a 12-member “Street-Level Drug Dealing Task Force” that struggles to find solutions. One obstacle to providing treatment is the shortage of drug counselors, something Assembly-member David Chiu’s aims to mend through legislative funds and incentives. Will paying for more of the same services and task forces yield different outcomes?

Public Defender Mano Raju opposes a Chesa Boudin “Fentanyl Task Force” stating; “…more drug prosecutions do not result in a reduction in drug supply and demand…nor the prevention of drug use.” Given the mounting misery and demand for intoxicants, targeting the fentanyl pipeline will induce drug purveyors to find new avenues and alternate opioids to maintain their enormous profits. The Internet and its Dark Web will still facilitate illicit drug production, sales and marketing.

Further, San Francisco’s drug crisis may reflect one facet of a nationwide surge in mortality from drug overdoses, alcoholism and suicide. According to Princeton University economists, these “deaths of despair” are symptoms of a precarious economy, something that drug programs cannot fix. Moreover, San Francisco’s casualties are exacerbated by intractable homelessness and rampant mental illness. Deaths of despair are expected to rise given the socio-economic ravages of the COVID-19 pandemic. What can be done, besides a 1930’s-type national New Deal?

Consider California’s 2016 “Control, Regulate and Tax Adult Use of Marijuana Act” that added marijuana to alcohol and tobacco as legal, regulated drugs. Amid the COVID-19 pandemic, once-stigmatized cannabis dispensaries are now deemed “essential businesses” !  Since the sky hasn’t fallen, the personal use of other prohibited drugs could be rendered safer, both medically and legally, by legalization or decriminalization. (Decriminalization removes criminal penalties from an offense but retains civil penalties. These typically involve small fines, confiscation of drugs and referrals to drug treatment - without a criminal record.)
 
Decriminalizing Psychedelics
In February 2021, Senator Scott Wiener introduced Senate Bill-519 that would decriminalize the personal use and possession of LSD, psilocybin aka “magic mushrooms”, MDMA or “ecstasy”, mescaline, DMT the active ingredient in ayahuasca, ketamine and ibogaine for persons 21 years of age or older. Peyote is omitted as it’s a threatened species reserved for Native American spiritual practices.

Also, the bill would expunge prior convictions for possessing these psychedelics, like the 2018 law that clears records for marijuana possession. Wiener declared  “Let’s embrace science & move past the failed war on drugs. Drug use is a health issue, not a criminal issue. And, psychedelics have tremendous health benefits.” Racing ahead, the biotech sector has inserted psychedelics in patent applications for Philip Morris e-cigarettes, periodontal disease, hair-loss, obesity and food allergies.

Oregon’s Drug Decriminalization and Other Precedents
Wiener’s Bill is modest compared to Oregon’s Measure 110 that decriminalized the possession of small amounts of all illegal drugs in October 2020. Holding less than the amounts listed below results in a $100 fine that is dropped if users agree to a health assessment and drug counseling;

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Drug possession above these amounts, as well as manufacturing, sales and delivery remain criminal offenses. Oregon will use tax revenue from marijuana sales to expand drug treatment services.  Largely funded by the Drug Policy Alliance and the Chan-Zuckerberg Initiative, Measure 110 was approved by 58% of voters.

Other notable precedents occurred in 2019 when Denver and Oakland became the first US cities to decriminalize psilocybin mushrooms and peyote. Santa Cruz followed suit in 2020.

Oregon’s law mirrors Portugal’s 2001 doctor-led, ground-breaking decriminalization of all drugs. Robust treatment programs were implemented. Since then, rates of drug abuse, overdoses and HIV infections have declined, along with prison caseloads for drug charges. And, drug treatment enrollments soared by 60%. A Cato Institute study found that fear of arrest had been the main barrier to seeking treatment. These benefits have upended the dire predictions of uncontrolled drug abuse. In 2009, Mexico also decriminalized the possession of small amounts of cocaine, heroin, LSD and methamphetamine, among other drugs. The Law Library of Congress provides summaries of laws in countries that have decriminalized "narcotics."”

Toward Legalization

SF Overdoses Jan/2021

The first step is to address drug use from a public health rather than a crime-based perspective. A feasible starting point is the “Comprehensive Drug Decriminalization Framework”, developed by the Drug Policy Alliance. Unlike legalization, however, decriminalization doesn’t supplant the black market.

The main obstacles to legalization (and decriminalization) have been law enforcement, citing risks to public safety, and the private prison industry that profits from incarcerating drug users. There are also public concerns about normalizing and promoting potentially destructive drug use. Proponents have effectively countered these arguments by emphasizing the therapeutic benefits of marijuana, and of psychedelics for PTSD, intractable depression and anxiety disorders. Legalizing presciption heroin and perhaps methamphetamine for refractory addiction would rely on cost-benefit calculations.  Across the political spectrum, spending to treat non-violent drug users is now preferred to the enormous costs of incarceration and policing.

Another fear is that drug availability and marketing will increase drug usage and addiction. But availability persists despite decades of costly interdictions. And drug marketing flourishes because street dealers entice their clients with menus of illegal products. Reassuringly, cannabis legalization in Colorado, Washington, Oregon and Alaska has not increased usage among youths or adults. Decriminalizing all drugs in Portugal hasn’t increased use or addiction.

Accordingly, legalization combined with regulation, education, advertizing bans, and robust treatment options mitigates drug abuse and addiction. It’s also the safest way to put drug dealers and cartels out of business. Taxing sales would generate funding for treatment programs. Critically, legalization would impose quality controls for dosing and purity, eliminating lethal adulterants like fentanyl.

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

March 2021

Equality, Equity, Liberation
Inside the Fight Against Racial Discrimination Lawsuits 

Herrera's Curious Union-Busting Law Firm Choice

S an Francisco has steadily rolled-back racial discrimination.  Anti-discrimination policies and programs are pervasive. Ethnic minorities serve in leadership positions. Yet, a surge in racial discrimination claims has rattled several City departments. Recent lawsuits alleging discrimination against Black employees are startling in egalitarian San Francisco. Doubling the consternation is the City Attorney’s paying a Union-busting law firm to fight these claims.

City’s Expanding Anti-Discrimination Programs

Poster

In 1964 the City set up its Human Rights Commission to root out racial discrimination. The HRC promotes non-discrimination and investigates violations. Ironically, one of its straight Black employees sued for race and sex discrimination in 2012, resulting in a $210,000 settlement. Similar critiques followed.  A May 2019 survey by the Budget & Legislative Analyst found that 45 City departments provide 610 programs and initiatives to address inequities based on race, gender, ethnicity, etc. Among these are the Mayor’s Task Force on Diversity and Inclusion, and long-standing Equal Employment Opportunity programs now being independently reviewed. Further, 20 city departments participate in the national “Government Action on Race and Equity” program that provides tools to assess racial disparities and deliver implicit bias training.

Slow Progress Deemed Window-Dressing

 Yet, in July 2019, the Office of Racial Equity was founded - “in response to the City’s growing racial disparities.” Disparities aren’t growing, but concerns are. As the vanguard for the Human Rights Commission, this new agency mandated that each City department produce a Racial Equity Action Plan in 2020. Meanwhile, Black workers, who comprise 15% of the City workforce, filed 32% of complaints alleging unfair treatment, staged protests against racial discrimination, and filed lawsuits alleging same. In October 2020, Angela Alioto sued the DPH on behalf of 8 Black employees.  In November, the Municipal Transportation Agency, Health Department and Public Utilities Commission were named in a Class Action racial discrimination lawsuit. (SF Superior Court; Case No. CGC-20-588012).

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Though imbued with good intentions, personnel programs tend to serve management more than employees. One example; less than 1% of Equal Employment Opportunity complaints are sustained. Further, anti-racism interventions like Implicit Bias Training have not been proven effective.  In a December Press Release, the two law firms representing these Black plaintiffs declared; “Rather than address the sources of racism in the City’s workforce, the City has prioritized its image by employing an army of high-paid public relations people, and implementing window-dressing working groups, committees, reports, and hearings. In essence, all talk, no action.”

As Racism Subsides Complaints Mount

Why are employee complaints about racism soaring despite the obvious decline and widespread condemnation of racist practices? Well, racial disparities and covert racism have been endured - until now. The 2020 Annual Workforce Report compiled by the Department of Human Resources highlights disparities; “Most notably, in comparison to those of other races, our Black employees have lower-paying jobs, are less likely to be promoted, and are disciplined and fired more frequently.” For example, Blacks comprise 15% of City workers but receive 37% of disciplinary actions; Whites represent 29% of workers but get just 19% of disciplinary actions. However, the relative role of discrimination versus performance issues and qualifications hasn’t been fully untangled.

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With 200+ attorneys among 338 FTE employees, the City Attorney’s Office should be equipped to refute claims of racial discrimination in a City devoted to inclusion, diversity and equity. Instead, Dennis Herrera hired a law firm with a long, notorious history of “union-busting,” namely Jackson Lewis”

Importantly, the Black Lives Matter movement has fomented much soul-searching and awareness. So has Critical Race Theory which posits that racism is omnipresent regardless of intent. Racial disparities signify racism. One is either “racist” or “anti-racist,” disallowing the “non-racist.” With heightened sensitivity, a broadened definition of racism, plus “woke” activism, it’s more likely that disparate outcomes are ascribed to racism while other factors are overlooked. Per the Dunning Kruger effect, employees who are blind to their own deficiencies may view reprimands as identity-based affronts in this time of cultural awakening.

Relevant also is a fascinating psychological study showing that people respond to the decreasing prevalence of a stimulus by increasing their concept of it. For example, subjects were shown an array of faces, some of which were threatening. When the number of threatening faces was reduced, the subjects began interpreting neutral faces as threatening. Similarly, subjects were asked to rate research proposals, some of which were unethical. As the proportion of unethical proposals diminished, the reviewers started labeling innocuous ones as unethical. The researchers concluded; “Social problems may seem intractable in part because reductions in their prevalence lead people to see more of them.”

This phenomenon, plus confirmation bias, may partly explain the rise in racism complaints, as well as the “mission creep” in military campaigns, the emergence of “micro-aggressions” in social interactions, and the tendency for political purges and conspiracy theories to spiral uncontrollably. Nonetheless, incidents of racist oppression still occur, so rectifying them starts by valuing the Black tradition of defending Democracy against racism.

City Attorney’s Response

City Attorney Dennis Herrera
City Attorney
Dennis Herrera

With 200+ attorneys among 338 FTE employees, the City Attorney’s Office should be equipped to refute claims of racial discrimination in a City devoted to inclusion, diversity and equity. Instead, Dennis Herrera hired a law firm with a long, notorious history of “union-busting,” namely Jackson Lewis. This national behemoth with 950+ attorneys was initially hired in August 2019. Its contract, obtained by the Westside Observer, specifies dealing with a sexual harassment claim and negotiating collective bargaining agreements. In November 2020 - just as the aforementioned high-profile discrimination lawsuits were launched – the Jackson Lewis contract was extended through June, 2022.

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Googling “Jackson Lewis + Union Busting” generates scores of entries about the firm’s anti-union activities on behalf of corporate employers. Among the most revealing are those in CounterPunch,  Daily Beast,  In These Times and the Village Voice.  Jackson Lewis openly advertises its drive for “union free” workplaces. However, the firm also recommends positive practices that reduce workplace stress and discontent.

Why would Herrera hire Jackson Lewis?  There are no union uprisings. So it’s likely for its expertise in labor law and fending off damaging discrimination claims. Atypically, the current racial discrimination charges aren’t coming solely from aggrieved employees. They also derive from the City’s own reports - and mea culpas. At the 11/17/20 SFMTA  Board meeting (at 1:50), Director Jeffrey Tumlin publicly admitted to; “a long, well-documented history of racism…against our own workforce. Those problems continue today.” At the 7/14/20 PUC meeting, (at 2:13) a Workforce Equity analysis showed Black workers under-represented in high-paying jobs and over-represented in disciplinary actions. Not surprisingly, the recent Class Action lawsuit points to; “…what the City admits is a longstanding practice of systemic racism against Black employees,” as well as violated laws.

Defending the City will require contesting City studies and confessions, not just plaintiff’s claims. City Attorneys would imperil themselves by challenging City Family messages and colleagues. Plus, they could be vilified as apologists for racism by distraught workers. An outside law firm can more easily challenge the City’s incriminating admissions - and withstand employee resentment.

Plus, Jackson Lewis proclaims; “We share our clients’ goals to emphasize diversity, inclusion, integrity and respect for the contribution of every employee.” Its “Diversity Counseling Group” helps clients to “enhance diversity programs” while providing “Crisis Mitigation.” So, its anti-union lawyers can’t be easily dismissed as racially uncouth. Karl Olson, one of the lawyers representing Black workers in the Class Action lawsuit, disagrees; “Hiring a law firm with a long history of union-busting and defending racist employers to represent the City is the legal equivalent of flying a Confederate flag in City Hall.”

Hiring Without Competitive Bidding

Other powerful firms defend employers from discrimination claims. How was Jackson Lewis selected? In response to our inquiry, the City Attorney’s Office indicated that Herrera picked Jackson Lewis without competitive bidding. Interestingly, Jackson Lewis’s principal litigator, Gina Roccanova, was a Civil Service Commissioner during employee protests against “favoritism, nepotism and cronyism” that the Westside Observer covered in 2016. Roccanova also contributed $375 to Herrera’s 2011 mayoral campaign and $100 to his re-election in 2013, per Ethics Commission records. However, that was before she joined Jackson Lewis in 2019. No Jackson Lewis contributions appear in Herrera’s campaign disclosures.

As the Westside Observer reported in 2016, Herrera had similarly selected – without competitive bidding - the pricey, campaign-contributing firm of Keker & Van Nest. It was paid $850/hour to fight whistleblower Joanne Hoeper’s retaliation claim. All told, that decision cost taxpayers $12.2 million. Of that, Keker & Van Nest collected $4.2 million, despite losing the unduly prolonged case.

Herrera’s renewed contract with Jackson Lewis pays Roccanova $395/hour, somewhat less to 6 other lawyers, for a total not to exceed $700,000 in fees plus expenses. Notably, this contract includes many more cost-controls than the Keker & Van Nest give-away. Costs still need scrutiny; Jackson Lewis was described as; “part of an industry that profits from promoting conflict in labor-management relations,” by Professor John Logan, Director of Labor and Employment Studies at SF State University.

Racial Equity plans and the paradoxical rise in racial discrimination lawsuits may bring just and productive changes. They could also propel identity-based divisions in the workforce. The challenge will be to unify the internal factions to better serve the external public. 
                                                                                                                                  

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

February 2021

Controller Ben Rosenfeild
The Amazing Controller Ben Rosenfeild
SFPUC: Audits Vanish Amidst Corruption Pandemic
Supervisor Gordon Mar
Supervisor Gordon Mar

I n May 2019, Supervisor Gordon Mar introduced legislation to set the audit work-plan for the Board’s Budget and Legislative Analyst (BLA). That plan, FY 2019-20 , included an audit of the City’s Workforce Development and Community Benefit Programs. These “good neighbor” programs, designed to benefit communities impacted by City construction projects, have been roiled by pay-to-play allegations.

Notably, since January, 2011 the Public Utilities Commission (PUC) has promoted its Community Benefits Policy by awarding workforce-training grants and forming “Social Impact Partnerships.” Through such partnerships, private firms receiving contracts valued at $5 million or more are expected to contribute about 1% to community non-profits and charities. As incentives, contractors are given extra points for bids that include community benefit commitments. This well-intended policy sparks “pay-to-play” concerns when contractors are steered to support non-profits favored by PUC executives.

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...the BLA requested and soon obtained 10 years-worth of records related to the PUC’s Community Benefits Program, grants and contracts. Sources say that interviews were conducted. Then…nothing. The PUC audit evaporated as City Hall, DPW and the PUC were rocked by federal corruption investigations and charges.”

On 7/9/19 the Board of Supervisors approved Mar’s audit Motion. Around 9/5/19 the BLA requested and soon obtained 10 years-worth of records related to the PUC’s Community Benefits Program, grants and contracts. Sources say that interviews were conducted. Then…nothing. The PUC audit evaporated as City Hall, DPW and the PUC were rocked by federal corruption investigations and charges.

What Triggered the PUC Audit?

The impetus for assessing Workforce Development and Community Benefit Programs came from Local 261, a construction workers union, and a February 2019 SF Labor Council Resolution.  Since 2016, labor representatives have protested that these programs, especially under the PUC, support politically-connected non-union non-profits that develop and train workers - without meeting union or civil service standards. The opening salvo came at the 12/13/16 PUC meeting (at 21:15 minutes).

The PUC provides direct workforce development grants. Plus, 36% of PUC Community Benefit Program funds (slide 20) go to workforce training projects. Weirdly, these funds go to both union and non-union entities. Labor unions like Local 361 are affiliated with unionized workforce training programs– funded by PUC grants. So they resent PUC’s enabling less rigorous non-union programs. Unions argue that non-union programs produce under-qualified workers and dead-end jobs. Further, they construe PUC’s delegation of workforce training to favored non-union outfits as political patronage. Misgivings intensify due to the lack of transparency and oversight in PUC’s Community Benefit deals.

When Local 261 leaders sought records about these PUC programs and grantees, some of their inquiries were rebuffed as being “...unduly burdensome and oppressive.”  Some labor reps wondered “if we have another Mohammed Nuru/Lefty O’Doul’s Foundation situation on our hands.” Given the lack of information and audits, PUC employees, contractors, and civic watchdogs among others, contacted the City’s Whistleblower Program, federal agencies, then local newspapers like the Marina Times and the Westside Observer, as a last resort.

 Why the Audits Dematerialized

SFPUC Sign

A partial explanation came in a truncated 8/3/20 BLA report; “…the initial scope of the audit included an evaluation of the community benefits programs at the San Francisco Public Utilities Commission. The audit team initiated this evaluation, but in conjunction with the Board of Supervisors, ultimately determined that the assessment would be redundant with an upcoming audit by the Controller’s Office.” That “upcoming audit” has yet to materialize. Still, BLA auditors managed to compile some data. They revealed that PUC’s Community Benefits Program had gleaned $34.2 million from 75 contracts worth $2.2 billion, as of October 2019. For the first time, the magnitude of PUC’s opaque Community Benefits Program had come to light. But, no word on whether the $34 million went to productive community services or self-serving PUC cronies.

 Some Union sources felt that the Controller’s Office had “seized” or “high-jacked” the PUC portion of the audit. So the Westside Observer asked the BLA for records about its decision to abort the PUC audit. These records show that on 8/7/19 the BLA initiated talks to avoid overlaps with a planned Controller’s audit of the PUC Community Benefits Program. Discussions focused on averting duplication – and ensuring that nothing was omitted. Notably, both groups wanted a whistleblower complaint about the PUC’s “Social Impact Partnerships” covered. The Controller’s Office agreed to do so. What these documents don’t reveal is that this explosive whistleblower complaint, filed in January 2019, had been kept in limbo after reviews by the Controller and the City Attorney.

 A year and a half after the whistleblower complaint, this explanation appeared in a 7/19/20 BLA email; “…specific allegations appeared to us as a whistleblower complaint and we, in consultation with Board staff, determined that it should be referred to the Controller’s Office whistleblower program for appropriate investigation.”  However, as previously reported, once the Controller investigates a whistleblower complaint, the results are obfuscated. If based on a whistleblower tip, any follow-up audit by the Controller could be similarly clouded - or delayed.

NBCC news story

Because audits by both the BLA and the Controller’s Office sank mid-stream, suspicions arose. In a must-see 12/24/20 NBC Bay Area News story, Supervisor Mar asserted that…“in light of the still unfolding corruption scandal” an audit was “more important than ever” - without mentioning that the Board had approved it 18 months before. So what happened to the Controller’s PUC audit? The Controller’s Office told the Westside Observer; “…this planned audit has been delayed to devote critical resources in response to the COVID-19 cost recovery efforts. CSA-Audits plans to initiate this SFPUC Community Benefits Program audit before the end of March 2021.” That will be more than 2 years after the instigating whistleblower complaint.

“City Family” Harbors Conflicts of Interest

Perhaps “redundancy” or a “whistleblower complaint” aborted BLA’s audit. Maybe “COVID-19” alone stymied the Controller’s audit. Or, was City Hall reluctant to air dirty laundry? Nonetheless, the audit should be conducted - by the BLA rather than the Controller. Recall that Deputy Controller, Todd Rydstrom was the PUC’s Assistant General Manager and Chief Financial Officer from 2008 through 2014. He worked under Ed Harrington, who is now a PUC Commissioner. Harrington was PUC’s General Manager when its Community Benefits Policy was implemented, after serving 17-years as City Controller.

Can the Controller’s Office impartially audit the PUC’s deals and grants given these familial ties? Will the Controller’s auditors pore through 10 years of records – as the BLA planned - or will they limit the audit’s scope given COVID’s ongoing “cost-recovery” demands? As for the City Attorney’s ongoing investigation of PUC contracts, there’s a dual-loyalty problem. The City Attorney is geared to defend City officials, discredit whistleblowers and contain liabilities, as well as to uphold laws. It may not matter. The FBI and the US Attorney’s Office are hot on the PUC’s case. That may be the only way to see if Community Benefit Programs benefit communities as much as City Family insiders.

 This sorry state could fuel Supervisor Mar’s drive for a Public Advocate Office to root out government corruption.

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

January 2021

City Controller’s Secrecy Shields Corruption

San Francisco’s Sunshine Ordinance, mandated by the voters, declares;

 “The right of the people to know what their government and those acting on behalf of their government are doing is fundamental to democracy, and with very few exceptions, that right supersedes any other policy interest government officials may use to prevent public access to information. Only in rare and unusual circumstances does the public benefit from allowing the business of government to be conducted in secret, and those circumstances should be carefully and narrowly defined to prevent public officials from abusing their authority.” (Sec. 67 of the Administrative Code)

...

Openness applies not just to what government is doing, but to wrongdoing as well. When taxes pay for investigations into waste fraud and abuse of City resources, taxpayers deserve to know which City agencies break rules or flub their duties. A welcome example of investigative transparency is the series of “Public Integrity Reports” recently issued by the Controller’s Office. There, embarrassing facts are laid out, with names named.

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... the outcomes of investigations are veiled in secrecy. Identifying Departments where misconduct occurs – or is unsubstantiated - would show that the Whistleblower Program is independent - and serious about cracking down on waste, fraud and abuse. Withholding the names of City Departments where violations occur conceals mismanagement and corruption while denying information and accountability to taxpayers and tipsters. There is no legal obligation to continue this cozy secrecy.”

In stark contrast are the Controller’s Whistleblower Program Reports. These too are “public integrity reports” but their results are cagily masked, leaving the public in the dark as to which City agencies violated policies, regulations or laws. Even whistleblowers who submit department-specific tips cannot discern if their complaints were resolved by reading these texts.

Fogged-Up Investigations

...
Summary from the December 14, 2020 Whistleblowerr Report

For example, the most recent Whistleblower Program Report provides 2 typically opaque investigation summaries on pages 18-19;

Case #1: Allegation:  A department head organized a series of employee appreciation events that cost the department thousands of dollars and a significant amount of staff time. Department managers instructed employees to bill their time spent at these events as vacation or other personal time, but did not do so themselves. A vendor used at the events was selected due to personal connections to a departmental leader.

                Resolution: The investigation substantiated that these events cost the department tens of thousands of dollars and hundreds of hours of staff time. It also substantiated that department managers recorded their hours to work (non-leave) codes after instructing staff to use personal time for these events. The investigation did not substantiate that the vendor the department used (and paid for goods and/or services provided) at the events was selected due to its relationship with any departmental leader.

Case #2:  Allegation: A manager spent more than $900 in city funds to cater breakfast and lunch for seven employees at their home.

                Resolution:  The investigation found that the manager spent $900 of city funds on seven employees, or approximately $64 per meal. Although limited policy and guidance requires city employees to conduct the City’s business in a fair and cost-efficient manner, the City does not have a policy on allowable costs when providing food and beverages at work-related events. Therefore, the department developed its own policy based on the U.S. General Services Agency’s per diem expense guidelines for federal agencies.

In neither case is the department identified. Why not? Why should the public not know? This level of secrecy exceeds the confidentiality granted to Whistleblower Programs by California Code 53087.6(e)(2). While the identities of individual 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.”

Curiously, the “resolution” in case #1 dodges any restitution or discipline for executives whose picnicking was logged as “work” while staff had to sacrifice vacation time. Hidden is how many “tens of thousands of dollars” were spent. In case #2, no comparison is drawn between the plentiful $128/employee spent for breakfast plus lunch versus what federal guidelines recommend. In fact, the federal 2019 meal allowances for San Francisco were $18 for breakfast and $19 for lunch - just $37/employee. That’s $259 for 7 people – not $900. Small potatoes, but as a cultural plague infecting many City departments over many years, it turns into big money, wasted.

An easy assumption is that these 2 cases refer to former DPW boss, Mohammed Nuru, who staged lavish employee appreciation events and hired cronies for catering services. Indeed, the cases are strikingly similar to the DPW shin-digs documented on pages 39-40 in the 2nd Controller's "Public Integrity Report.” However, a knowledgeable insider (not identified to prevent retaliation) explained that these cases pertain to the Public Utilities Commission (PUC), its former General Manager Harlan Kelly, and his then-deputy, Juliet Ellis.

A Whistleblower Provides Clarity

Our reliable source tells us; “there was an uproar when Harlan and his Executive Team told us to use vacation time to attend the picnics” in his July 2019 emails to all staff. There were 4 staff picnics, starting at Crocker Amazon Park on 8/16/19. Others occurred in Millbrae and Hetch Hetchy. The PUC hired “Spice It Up, LLC” to cater the Crocker Amazon and Millbrae events. The picnics also featured hat and T-shirt giveaways, entertainment, and rented games for kids, likely provided by other vendors. Records show that the PUC paid $64,576 to Spice It Up in FY 2019-20, compared to $14,441 the year before.

As for the $900 feast for 7 employees; our source asserts it was another PUC extravaganza that stirred an “uproar.” Reportedly, in October 2019, Juliet Ellis invited 6 subordinates to her home for breakfast and lunch. The double-buffet was likely provided by “BiRite Catering, LLC.” Observers were outraged that platters advertised as serving 15 people were ordered for 7. Further, this lavish expenditure was approved by PUC’s Financial Officers, thereby calling into question the agency’s financial ethics. Records show that the PUC paid BiRite Catering $26,321 in FY 2019-20, surpassing the $17,767 paid out the previous year. The Westside Observer requested copies of the luncheon invoices from the PUC, and awaits a response.

Barriers to Transparency

Getting the Controller’s Office to fairly examine PUC’s expenditures could be hampered by “City Family” dynamics and conflicts of interest. It’s tough — and perilous — to investigate powerful friends and colleagues. Controller Ben Rosenfield is a multi-generational ”City Family” stalwart. And, from 2008 through 2014, Deputy Controller Todd Rydstrom served as PUC’s Assistant General Manager and Chief Financial Officer — alongside, then under Harlan Kelly. Will Rydstrom recuse himself from overseeing PUC-related audits, performance reports and whistleblower complaint investigations?

Weirdly, neighborhood newspapers deliver truer accounts of whistleblower tips than those transmitted by the Controller’s intentionally-obscured Whistleblower Program Reports. Nobody can tell what agency was involved, so everyone speculates about possible offenders. Miscreant City agencies are thus shielded from public awareness – and inquiries. It’s laughable that this secrecy is justified as a way to protect whistleblowers. Why must we read US Attorney Press Releases and local newspapers for critical information derived from whistleblowers, when we already pay for a program that supposedly resolves whistleblower complaints? City employees who want action on their corruption complaints now contact the FBI or the media, while the Whistleblower Program mainly shuffles nickel-and-dime grievances.

Obfuscation Breeds Mistrust

One reason that whistleblowers do not trust the Whistleblower Program is that the outcomes of investigations are veiled in secrecy. Identifying Departments where misconduct occurs – or is unsubstantiated - would show that the Whistleblower Program is independent - and serious about cracking down on waste, fraud and abuse. Withholding the names of City Departments where violations occur conceals mismanagement and corruption while denying information and accountability to taxpayers and tipsters. There is no legal obligation to continue this cozy secrecy. In fact, the Whistleblower Program had previously identified investigated Departments, and other county Whistleblower Programs do so, as the Westside Observer reported in 2012.

Given the widespread exposure of corrupt practices in publicly identified City Departments, the suffocating secrecy imposed by the Controller’s Whistleblower Program undermines trust in its investigations and conveys complicity with wrongdoing.

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

December 29, 2020

...
Supervisors' Attempt to Blacklist Neighborhood Newspaper Foiled
Marina Times Cover

In November 1994, San Franciscans approved the hotly-contested “Official Newspaper” ballot initiative, known as Proposition J. It amended the selection process whereby the City paid local newspapers to publish official City notices. Instead of issuing contracts solely on the basis of the lowest bid, Prop. J also awarded points for a paper’s circulation, cost, and local/minority/woman-ownership. Enshrined under Article IX of the Administrative Code, this Official Newspaper law strengthened an earlier Charter provision authored by then-Supervisor Quentin Kopp. The City Charter, Article XVII, states; “Notice shall mean publication in an official newspaper (as defined by ordinance)…” Accordingly, publication in a newspaper signifies public disclosure.

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Preston accused the Marina Times of being “an entity that has proven time and again that they are a mouthpiece for disinformation, doxxing public officials, and personal attacks. I consider them on par with the likes of Breitbart News and Tucker Carlson in serving to the public fact-free and often hate-filled propaganda.”

Currently, the Examiner is the City’s official newspaper. Because some communities are not adequately served by one newspaper, smaller “Outreach Newspapers” are selected by the Office of Contract Administration. Eleven such newspapers were granted contracts for $3,636/year apiece, for a total of $40,000 annually, to publish City notices by Community and Neighborhood Outreach Advertising. Community Outreach refers to ethnic communities while Neighborhood Outreach serves mixed neighborhoods. These include; Small Business Exchange for the Black community; El Reportero for the Hispanic community; World Journal SF and Sing Tao Daily for the Chinese community; Bay Area Reporter and San Francisco Bay Times for the LGBT community; Marina Times for the Marina/Cow Hollow/North Beach/Chinatown neighborhoods; Potrero View fr the Potrero Hill/Dogpatch/Mission Bay/Eastern SoMa neighborhoods; Richmond Review for the Richmond District; Sunset Beacon for the Sunset District; and Noe Valley Voice for the Noe Valley/Diamond Heights neighborhoods. Their contracts must be approved by the Board of Supervisors.

Cancel Culture Strikes the Marina Times

Supervisor Dean Preston
Supervisor Dean Preston

At the 12/1/20 Board of Supervisors meeting (at 51 minutes), the routine approval of these contracts was upended when Supervisor Dean Preston made a Motion to strike the Marina Times from the approved vendors. Why? Preston accused the Marina Times of being “an entity that has proven time and again that they are a mouthpiece for disinformation, doxxing public officials, and personal attacks. I consider them on par with the likes of Breitbart News and Tucker Carlson in serving to the public fact-free and often hate-filled propaganda.” Preston cited this 6/8/20 Marina Times tweet;
"Do you have a child @DeanPreston? If so, suppose that’s child was kidnapped, raped, and killed like Polly Klaas. Would you want the police to respond to your call? Would you want your child’s killer in prison? If you abolish prisons you’re OK with that killer doing it again?"

This was a retweet from Marina Times editor Susan Dyer Reynolds to Preston’s “Defund police. Abolish prisons.” tweet. Preston complained that Reynolds also issued the hashtag “PrestonsPurge” that he took “as a threat to my family.” Reynolds states she was merely referring to the dystopian film “The Purge” where policing stops and mayhem ensues. Coloring this kerfuffle was Reynolds’ November article “Horror in the Haight,” amiably subtitled; “Supervisor Dean Preston has made life in the Haight a living hell.”

Supervisor Hillary Ronen
Supervisor Hillary Ronen

Supervisor Hillary Ronen chimed in; “My basic standard for journalism is a respect for truth and facts. Sadly, there have been several instances where the Marina Times has been presented with facts that prove their politically-based assertions as incorrect and they refused to retract their statements…the Marina Times is doing a disservice to those neighborhoods by becoming a purely propaganda outfit that presents lies as facts.” Ronen does not represent the “disserviced” Marina District, and did not specify the purported lies at issue. The Westside Observer requested relevant examples from Ronen, and awaits her response. Ronen also asserted that the Marina Times “goes beyond the pale” because it “attacks specific groups based on their identification or based on their politics” - without examples. Notably, the Marina Times had critiqued Ronen as a “hypocrite” for buying into a TIC from which the previous tenants had been evicted or bought out, then writing legislation to prohibit such evictions.

Supervisor Aaron Peskin
Supervisor Aaron Peskin

Supervisor Aaron Peskin, who pens a column for the Marina Times, realized that “a much larger issue of public policy” was at play, as well as the First Amendment. Peskin advocated for a revision of Prop J, and asking an unbiased 3rd party to weigh in on contract cancelations for “not OK speech,” rather than doing so based on the displeasure of elected officials. Supervisor Ahsha Safai similarly grasped the policy and freedom of speech implications of penalizing the editorial views of contracted publications. He added that the roster of publications did not meet the City’s “racial equity” goals, and also favored revising Prop J.

Supervisor Catherine Stefani
Supervisor Catherine Stefani

Supervisor Catherine Stefani, who represents the Marina District and also writes monthly column for the paper, vehemently opposed the contract cancelation as a violation of the First Amendment, and a “knee-capping of local journalism” in a time of intense economic distress that would deprive Marina residents of access to City notices. She argued that the Board should “protect local journalism even if we don’t like what they say.”

Supervisor Walton countered that refusing to dispense taxpayer funds to a newspaper did not prevent it from publishing or expressing First Amendment speech. Incidentally, he too was scorched in this Marina Times tweet;

"Oh it gets much worse. Tips rolling in from people who say Walton is “100% about kickbacks.” And that’s what the @SFWater Community Benefits program is all about. @AECOMgets a big contract and then writes millions in checks to “nonprofits” like YDC run by Harlan’s cronies."

Ultimately, only Supervisors Peskin, Safai, Stefani and Mandleman voted against dumping the Marina Times contract. Its fate was continued to the December 8th meeting.

Meanwhile, the Board received a cautionary letter from First Amendment attorney Karl Olson on behalf of the Marina Times. It reminded the Supervisors of the 1964 landmark New York Times v. Sullivan Supreme Court decision that emphasized our; ”profound national commitment to the principle that debate on public issues should be uninhibited, robust, wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” It was a helpful warning because retaliators tend to justify their reprisals as remedies to eradicate pathogens.

 At the December 8 meeting (at 31 minutes), Supervisor Preston selectively cited portions of the Society of Professional Journalists’ Code of Ethics then claimed that the Marina Times had “repeatedly degraded unhoused populations (as) drug-addicted, sexual predators, child molesters; much of it is really gross.” Hyperbole aside, Preston failed to mention the Marina Timesinvestigation and promotion of innovative housing for the homeless. Nonetheless, the 7 censorious Supervisors capitulated and a unanimous vote approved the Marina Times contract.

Griping about a Muck-Raking Editor

Chief Editor Susan Dyer Reynolds
Chief Editor Susan Dyer Reynolds

The target of the Board’s ire is Susan Dyer Reynolds, the feisty editor of the Marina Times since 2002, and co-owner since 2006. She studied Journalism at San Jose State University and has pursued Investigative Journalism since 2009. Along with articles on food and animals, she authors an aptly-titled “Reynolds Rap” column. These “raps” are always interesting, adequately substantiated, and sometimes fiery, within the bounds of adversarial journalism. Importantly, she boldly criticizes failing progressive policies and City Family players of all stripes. Because she is outspoken and willing to channel the outrage of her sources, she draws tips. Her fearlessness attracts whistleblowers whose complaints to City agencies are often met with retaliation - or burial in coffins of confidentiality. Her seemingly inflammatory articles about the corruption surrounding former DPW boss Mohammed Nuru and SFPUC’s Harlan Kelly now seem prescient. Apart from her monthly column, the Marina Times’ content runs from staid to demure.

However, Reynolds also helms the Marina Times’ Twitter account. That’s where her critiques become more edgy - without the context and substantiation of her print articles. For example, her tweet about the aforementioned Board meeting portrayed Supervisor Ronen as “a hysterical drama queen at pretty much every meeting, crying her crocodile tears,” adding “They’re all hypocrites.” Such jabs could be delivered via a personal Twitter account rather than using the Marina Times banner.

Why it Matters

A majority of our Supervisors sought to be the arbiters of Journalism, truth, and facts. They almost blacklisted a neighborhood paper - one that most did not read - because they disliked its editor’s views. A similar dynamic fueled the Board’s shameful 2012 purge of the Sunshine Ordinance Task Force. Speech that hurts feelings or contradicts beliefs is not the same as illegal threats to life and limb. The conflation of these affronts in today’s Cancel Culture - and by our Board of Supervisors - magnifies personal or political slights into existential threats.

Determining what publications get paid to distribute City notices should be based on voter-approved criteria set forth in the Administrative Code and applied by the Office of Contract Administration. If the Board wants to add undesirable journalistic practices to those criteria, let them go back to the voters with a legally-vetted revision of Prop J, then alter the newspaper contracts accordingly. Otherwise, dumping qualified but disfavored Outreach Newspapers is not only a breach of contract but also a type of collective punishment. The irritating newspaper loses City funds, but the community it serves loses access to City notices.

The danger is that challenges to official narratives get labeled “hate-filled propaganda,” thereby shutting down complaints about, and inquiries into, government corruption and incompetence. After the Marina Times called out City Hall sleaze and lapses, it faced a vendetta for views considered rude or wrong by some Supervisors. Hence, the Board’s plan to update Prop J by excluding icky journalism is worrisome. Besides, Supervisors already have bully pulpits from which they can gainsay disagreeable claims. Obviously, local newspapers do not have a right to libel or to receive taxpayer funds. But they are entitled to contract decisions grounded in policy and budgetary imperatives. Basing these decisions on Supervisors’ preferences is perilous for press freedom. Diagnosing journalistic malpractice is best left to journalists and courts - not politicians.

Acknowledgement: Thanks to Joe Kokura at SFist for thorough, breaking coverage of this story.  

Editor's Note Supervisors Preston and Ronen have, since the incident, issued a Joint Statement from Supervisors Preston and Ronen on City Advertising in The Marina Times.

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

December 20, 2020

Who Benefits from Green “Benefit” Districts? 

GBDs — privatizing basic City services

SF Parks Alliance - London Breed

Property owners in San Francisco are generally under the impression that their property taxes pay for basic government services such as public safety (Police and Fire Departments); clean streets and sidewalks (Public Works); maintenance of our parks (Recreation and Park Department) and services to help homeless people (Department of Homelessness and Supportive Housing).  

In spite of an enormous budget ($13.7 Billion this fiscal year), the City has sought to hand off many of these responsibilities to the private sector for several years. A key mechanism whereby City officials “privatize” basic government functions is to fund the promotion of Commercial Benefit Districts (CBDs), Business Improvement Districts (BIDs) and, more recently, Green Benefit Districts (GBDs). San Francisco residents who have been following DPW’s Mohammed Nuru corruption scandal and SF Parks Alliance’s questionable tactics should give special scrutiny to this intentionally obscure scheme that promotes GBDs.

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... DPW and OEWD paid Parks Alliance some portion of a $156,984 contract to serve as foot soldiers in the most recent failed campaign ... But the City and SF Parks Alliance have blocked all citizen attempts to get invoices through public record requests, so the exact amount of public money spent is not known.”

Establishing GBDs requires special elections and special campaigns.

First, the Mayor's Office of Economic and Workforce Development (OEWD) and the Department of Public Works (DPW) fund aggressive campaigns to convince business and residential property owners to assess themselves by establishing “benefit” districts to pay extra for basic services. The City’s message is that San Francisco can no longer be counted on to provide basic government functions. These benefit district campaigns, paid for with tax dollars, undermine the public's faith in the City's ability to perform even the most basic government functions, and they confuse the lines of responsibility and accountability. There is still no plausible explanation why local crytocurrency billionaire Chris Larsen has distributed hundreds of surveillance cameras to Benefit Districts without City oversight and perhaps contrary to City ordinance. A New York Times report concluded: "San Francisco is unique in that the cameras are not being installed and monitored by the police but by private citizens, and it is unique in that one person is paying for so much of it."

Poster in an anti-BID campaign
Poster in an anti-BID campaign

Grants and Contracts Second, to convince residential property owners to set up GBDs, public funding via OEWD grants and contracts flows to non-profits SF Parks Alliance and Build Public which conduct the day-to-day campaigns. Working through a non-profit is a convenient way to hide the details of how public funds are spent.

Weighted Voting And third, the City uses weighted voting in the required special elections to set up “benefit” districts. Large property owners have greater voting power than small homeowners. And the City often owns enough property in a given neighborhood to tilt the election outcome.

Pay-to-Play: Let the Games Begin!

Once a “benefit” district is formed and the assessments pour in, private firms are hired to provide security, clean the sidewalks and serve as homeless “ambassadors.” These contracts create opportunities for cronyism. The disgraced former head of DPW, Mohammed Nuru, was personally involved in promoting the GBD concept in various neighborhoods. Early on, a selling point was that Benefit District managers would gain better access to DPW and City services. Access turns up because Benefit District managers tend to be former City employees and political staffers. Former unsuccessful Supervisorial candidate Julie Christiansen became Director of the Dogpatch GBD, the only GBD in existence. Public Works also pays a full-time employee - Jonathan Goldberg – as its Green Benefit District Program Manager. Goldberg assists in the startup of benefit districts and persuades residential property owners that they need a surcharge on their property tax if they want “enhanced” basic services.

Mohammed Nuru
Mohammed Nuru

City employees are forbidden by the Campaign & Government Conduct Code from influencing elections. In reality, City agencies place their thumbs heavily on the scale, using taxpayer dollars to fund City staffers to promote benefit districts, and by funding non-profits to influence the election process while obscuring the City's role. The City Attorney was alerted to this problem in April 2019, but showed zero interest. Finally, after Mohammed Nuru was arrested by the FBI on federal corruption charges, City Attorney Herrera subpoenaed the SF Parks Alliance, and organizations that donated to the Parks Alliance, seeking the very information concerned citizens have been requesting for almost two years.

GBDs defeated in residential neighborhoods

Public funding to promote GBDs originally came through Public Works and, more recently, via the Mayor's OEWD and was then contracted out to SF Parks Alliance. Yet, GBDs have been defeated in almost every residential neighborhood where they have been promoted, including the Inner Sunset, Golden Gate Heights, the Haight, and most recently in the Dolores Park neighborhood where a divisive two-year effort has been suspended.It appears that DPW and OEWD paid Parks Alliance some portion of a $156,984 contract to serve as foot soldiers in the most recent failed campaign. Property owners in these areas have questioned the City-funded lobbying; "Don't we already pay property taxes to provide for policing, street cleaning and park maintenance?” But the City and SF Parks Alliance have blocked all citizen attempts to get invoices through public record requests, so the exact amount of public money spent is not known. Citizens have a right to know how their dollars are spent, a right protected by California's Brown Act and San Francisco's Sunshine Ordinance.

SF Parks Alliance a Central Participant

SF Parks Alliance has been at the center of recent undemocratic efforts to form GBDs and has been paid by the City to run these campaigns to privatize City services.The contract between the City and Parks Alliance for the failed effort in the Haight (known as the Greater Buena Vista GBD), came to $221,000. The total cost of the effort in the Dolores Park area is at least $156,000. SF Parks Alliance routinely used taxpayer dollars to set up websites, conduct biased public meetings, pay for promotional mailers, and run petition drives without a time limit in preparation for special elections. Since votes are weighted by the size of the property owned, large property owners, often City-owned properties in targeted neighborhoods, can force less wealthy neighbors to join a "benefit" district.

Michael Yarne, Build Public
Michael Yarne, Build Public

Developers PAC? Of special interest, real estate developer Michael Yarne of Build Inc. originally convinced the City to authorize GBDs while he worked at OEWD under Mayor Newsom. Yarne later started a non-profit called Build Public, doing business as Place Lab, and which then merged with SF Parks Alliance where he sits on the Board. The SF Parks Alliance Board now includes another major real estate developer, Emerald Fund's Oz Erickson. At the same time, City funding amounting to millions of dollars started pouring into Alliance coffers

Sunshine Please!

For the past two years, neighbors from different areas of the City have testified before the Sunshine Ordinance Task Force (SOTF) to obtain records about the relationship between DPW, OEWD and SF Parks Alliance in promoting residential assessment districts using taxpayer dollars. Detailed information about these attempts can be obtained by searching the SOTF website for Files 19061, 19062, and 19032. The SOTF has been repeatedly stonewalled by OEWD and DPW, yet has taken little action on this issue. Non-government organizations like the SF Parks Alliance assert that they are not bound by the Sunshine Ordinance. Now that Public Works and the SF Parks Alliance find themselves at the center of a government corruption probe, there may be hope that the SOTF will find a way to help concerned citizens get to the bottom of this matter.

Drew Becher, CEO of the San Francisco Parks Alliance, expressed shock at the Controller's findings. "Like everyone, we were outraged to learn of the public corruption in our local government,” Becher said, in a statement. “We did not benefit in any way nor had any control over the donations that Nuru and Public Works solicited and directed to the sub-account, as the report states. We are a trusted partner to many community groups and city departments and welcome any and all actions that bring more transparency and oversight to ensure the public’s trust."

This deployment of public funds and City employees to set up assessment districts which pay private companies to carry our basic government services has not yet been fully exposed.

Think your taxes pay for City services? That was then — this is now.

San Francisco activists John Hooper and Mark Sullivan were assisted by Dr. Kerr in this report.

November 20, 2020

City Hall sinks in the swamp
Persistent Sleaze in the “City Family’s” Contracting Schemes
Zula Jones
Zula Jones
Photo: fogcityjournal.com

“You pay to play here…We’re the best at this game.”

So boasted Zula Jones, a Human Rights Commission (HRC) Compliance Officer in 2012. Fortunately, she solicited an FBI agent posing as a developer. Her advice was echoed by former HRC Commissioner Nazly Mohajer who upped the recorded brag; “I’m …uh…Chair of Local Business Enterprise, which basically oversees about 8 billion dollars of contracts that the City gives out.”

The City Family’s contracting oversight has a troubled history. Back in 2000, a White-owned firm paid a Black subcontractor to serve as a front, a phony partner, in order to get a City job that required minority participation. Zula Jones was then indicted for corrupting the HRC’s certificaton of sketchy minority contractors, but those charges were dropped. Tellingly, Jones’ retirement party was held at the home of Harlan and Naomi Kelly; the Public Utilities Commission (PUC) chief and City Administrator, respectively. Contracting sleaze persists, per the latest federal investigation of the Department of Public Works (DPW) - and now the PUC. Recently, recycling company owner Florence Kong pled guilty to bribing DPW’s Mohammed Nuru for contracts. As her lawyer explained; “She learned how to be successful from local leaders who advised her ‘how things worked in San Francisco’.”

The cost of corruption extends beyond self-enrichment at public expense. Because corruption is risky, corrupt persons protect themselves by marginalizing or driving out ethical employees. For safety, lackeys are recruited and rewarded instead. Similarly, because competent employees pose threats to the unqualified, they face displacement. A self-reinforcing cycle takes hold: honesty and proficiency deteriorate as self-dealing and ineptitude flourish. The bad drive out the good. In the realm of City contracting, grubby practices repulse ethical vendors, thereby depriving the public of quality, fairly-priced services. As corruption becomes the norm, not practicing corruption becomes a liability, thus selecting for unethical vendors.

quote marks

... corrupt persons protect themselves by marginalizing or driving out ethical employees ... because competent employees pose threats to the unqualified, they face displacement ... The bad drive out the good.”

Civil Grand Jury Forewarnings

This corrosive dynamic wasn’t addressed in the Controller’s follow-up report on the tainted DPW contracting practices unearthed by the FBI. However, the 2014-15 Civil Grand Jury report titled “San Francisco’s City Construction Program: It Needs Work” did. And, it identified “inconsistent controls” and “a lack of independent oversight” - now rediscovered by the Controller. The Jury warned about contractors being selected solely on the basis of lowest bids – without considering past performance. Poor performers would low-ball their bids, beat the competition, then file “lucrative contract change orders” to recoup their profits. The Jury found that; “…some major construction firms will not participate in…a process where the client does not choose a contractor based on past performance or the quality of the contractor’s work.”

The Jury also looked at the City’s Local Business Enterprise (LBE) Ordinance. The precursor to this affirmative action program, the “Minority/Women/Local Business Enterprise Ordinance” was launched in 1984 to counter discrimination that had virtually excluded minorities and women from City contracts. Abuses soon emerged. In 1984, Charlie Walker aka “The Mayor of Hunter’s Point” was convicted of defrauding  the program and served 3 years in prison. Years later, his trucking firm was recertified by the program he had bilked.

 While helping minority contractors, the earlier LBE Ordinances side-lined non-minority firms, prompting a lawsuit. In the 2004 Coral Construction v. CCSF case (Sup. Ct. No. 421249), the Court ruled that the race and sex-based preferences resulted in a “denial of equal treatment.” That violated California Proposition 209. The State Supreme Court agreed. (Note: This November’s Prop 16 aims to overturn Prop 209).

The current LBE program, enshrined in section 14(B) of the Administrative Code, muted the race and sex-based preferences but the affirmative action intent remains. It provides bid discounts, set-asides as well as financial and technical assistance for small, minority and women-owned businesses. It also mandates LBE participation in some City contracts. This helps small disadvantaged businesses compete effectively while also boosting the local economy.

These laudable diversity goals still had down-sides. The Jury found that LBE regulations were frustratingly complex and discouraged quality contractors. “Some contractors are daunted by the City’s LBE requirements, since some LBE firms…lack construction management and administrative skills.” To obtain City jobs, they felt obliged to use LBE subcontractors whose competence was sometimes marginal. When LBE subcontractors failed to deliver, the resulting delays and cost overruns damaged the primary contractors’ reputations. The Jury concluded; “This has led to a reduction in the number of contractors willing to bid on City business.”

Yet, bad actors weren’t penalized. The Jury quoted an audit by the City Services Auditor; “…because the City does not require evaluations of contractors’ performance…poor performing contractors – even contractors incapable of performing the work on which they bid – can secure additional City contracts.” For example, one subcontractor received 59 non-compliant notices for shoddy work on a $14 million bridge contract at the Airport – but wasn’t debarred. Debarments remain exceedingly rare. One reason is that the City addresses failings by education rather than enforcement. Another is that the LBE Ordinance doesn’t require performance metrics. And it’s run by the City Family.

Construction Management Free-for-All

Nowadays, the Contract Monitoring Division (CMD) of the General Services Agency certifies LBEs and ensures compliance with LBE hiring goals. That compliance function previously resided with the disgraced Human Rights Commission. The current CMD Director, Romulus Asenloo, had worked at the HRC and replaced Zula Jones as HRC’s Compliance Officer after the 1999 FBI crack-down. When oversight of the LBE was removed from the HRC, Asenloo was assigned to continue it under the CMD. City Administrator Naomi Kelly oversees the CMD. As of July 2020, there were 1,409 LBE’s in its database. Last year, LBE’s received $247 million in City contracts, or 25% of the total awarded. The CMD highlights its “comprehensive wrap-around Contractor Development Program,” saying little about performance standards.  

quote marks

Some view the LBE program as a patronage network that recycles retiring City employees - including former Willie Brown special assistants” - into post-career sinecures with, or as, City contractors. In return, these former City employees provide access to City department managers.”

Some City contractors (not named to prevent reprisals) say that the LBE program’s certification and enforcement operations favor City Family insiders. For example, although LBE contractors are limited as to how much they can earn from City work, some LBE outfits are allegedly allowed to exceed those income limits. That deprives non-LBE contractors. Some view the LBE program as a patronage network that recycles retiring City employees - including former Willie Brown “special assistants” - into post-career sinecures with, or as, City contractors. In return, these former City employees provide access to City department managers.  

Local Business Enterprise Construction Managers

A pointed concern involves the qualifications of LBEs in the Construction Management Field. These businesses provide coordination, planning and public relations services for big construction projects. It’s a profitable field that seems to attract politically-connected individuals who get certified with minimal construction credentials. However, per Government Code Section 4525(e), Construction Managers for public works projects must be licensed architects, engineers or general contractors. Surprisingly, most who work for the City lack those required licenses. For example, the City’s database shows 82 certified LBE Construction Management firms. Of these, just 21 have active licenses per the Contractors State License Board. Another 5 have expired licenses, 1 was canceled and 1 is inactive. So, 54 out of 82 (66%) skipped State licensing altogether. We asked the CMD for an explanation and await a response. Meanwhile, some non-LBE Construction Management firms with solid credentials and performance records say they are passed over. What’s needed is an independent review of the qualifications and performance of LBE Construction Management outfits - and whether capable, licensed non-LBE firms are unfairly kept out.

SFPUC’s Community Benefits Program

Juliet Ellis
Juliet Ellis

As the August 2020 Westside Observerreported, complaints of PUC skullduggery spurred the US Attorney to issue subpoenas for all contracts approved by PUC boss Harlan Kelly - and his deputy Juliet Ellis. Ellis pioneered the Community Benefits Program (CBP) that induces contractors to donate a percentage of their contract revenues to community service non-profits. Some qualified contractors object to participating as a matter of principle. They want to be judged on their professional qualifications and track record, not for complying with what they view as pay-to-play philanthropy. 

On October 2nd, Juliet Ellis announced the departure of 3 top executives. It was spun “In the spirit of embracing change.” Ronak Okoye, Director of the Community Benefits Program quit for a job with SPUR in Oakland. Yolanda Manzone, her Deputy Assistant General Manager and a former Community Benefits Program director, resigned. Another “retired.” No mention of the FBI investigation roiling the PUC - and its Community Benefits Program.

The Community Benefits Program may suffer if the “tone at the top” allows favoritism. In 2014, Juliet Ellis was fined $5,000 by the Ethics Commission for steering a no-bid PUC contract to a non-profit where she was employed. In a January 2018 email titled “Fwd: Pumps from China”, Harlan Kelly personally notified fraud-charged contractor Walter Wong about a water pump needed at Treasure Island. Kelly disclosed the technical specifications for the pump. Why would a busy CEO get involved in such mundane tasks? A former City engineering contractor insists that such pumps are readily available on the open market from local vendors. If so, why order one from China through Wong?  SFPUC sources previously informed the Westside Observer that Kelly circumvented his own compliance staff and payment protocols by enabling a City contractor to install grease traps for 3 Chinese restaurants, owned by a politically-connected individual who persistently violated PUC environmental regulations. In October 2018, that claim was investigated by the Whistleblower Program…and “closed.” 

Lance Jackson
Lance Jackson, SGI

Lastly, emails from April 2019, viewed by the Westside Observer, show that Kelly urged SFMTA’s then-Director Ed Reiskin to consider hiring Lance Jackson to manage the Van Ness Improvement Project. By July 2019, Jackson was hired. Jackson is an executive with the Pasadena-based Construction Management firm SGI that was embroiled in a pay-to-play scandal in San Diego. Jackson had also been featured in a 2015 conflict-of-interest controversy due to his dual role of working for both the Oakland School District and for SGI. It’s unclear whether Jackson’s expertise in managing school construction projects applies to major infrastructure projects like the Van Ness venture. Hopefully, Kelly’s referral of Jackson for an SFMTA job complied with the open selection process required for federally-funded projects.

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

October 20, 2020

Déjà vu: Controlling Pay-to-Play Donations
Chris Daly
Supervisor Chris Daly attempts to prohibit pay-to-play politics in 2009

The 9/24/20 “Public Integrity Review” issued by the Controller’s Office examined the pay-to-play underside of non-profits that collect donations for City departments. As summarized in the October Westside Observer, some 33 of the 56 City departments rely on such “Friends of…” organizations to raise funds for unbudgeted expenses. The scandal-plagued Department of Public Works (DPW) under former Director Mohammed Nuru used the SF Parks Alliance as its non-profit benefactor. Nuru asked DPW contractors and permit holders to donate money to DPW accounts held by the Parks Alliance.

quotes

the Controller recommended, in that September Public Integrity Review, that the City prohibit department heads and employees from soliciting donations from those they regulate or do business with unless authorized by the Board of Supervisors.”

...
Daly's Pay-to-Play prohibition denied by Elsbernd, Alioto-Piers, Dufty, Chu, Chiu and Maxwell

 Virtually all the nearly $1 million raised came from 15 entities that did business with DPW. Nuru then directed how that money was spent – mostly on staff appreciation events and services delivered by his friends and associates. To prevent pay-to-play dynamics, the Controller recommended, in that September Public Integrity Review, that the City prohibit department heads and employees from soliciting donations from those they regulate or do business with unless authorized by the Board of Supervisors. That recommendation triggered a case of déjà vu.

Public Works Contracts
From the Controller's Public Intregrity Review

In October 2009, former Supervisor Chris Daly proposed an Ordinance that prohibited department heads and employees from steering donations to “Friends of…” non-profits that raised funds for their departments – if the donors had business with their department. The impetus for Daly’s proposal was that officials in the Mayor’s Office allegedly steered donations to “Friends of Planning” from entities that had business before the Planning Department.

Daly’s bill faced opposition from several City departments that used their ”Friends of…” allies to offset budget cuts imposed after the 2008 Recession. The non-profits themselves also objected. They feared that Daly’s plan would have a chilling effect on donations and public-private partnerships. Interestingly, the moderate wing of the Board, then-represented by supervisors Elsbernd, Alioto-Piers, Dufty, Chu , Chiu and Maxwell tabled the proposal by voting 6 to 5 against Campos, Avalos, Mirkarimi, Mar and Daly. Eleven years later, the Controller has recommended what Daly wanted.

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

October 20, 2020

Inside City Hall’s Web of Corruption

Self-dealing, influence-peddling, cronyism and pay-to-play transactions have long-sustained the upper echelons of the City Family. Now that the FBI and US Attorney’s Office are targeting shady City departments, the City’s legal, ethical and financial guardians are scrambling to conduct damage-control investigations.

Ethics Bosses
Ben Rosenfield, Lee Ann Pelham, and Dennis Herrera, SF's legal, ethical and financial guardians

Early warnings from City whistleblowers and civic watchdogs were usually dismissed or interred. Nothing happened after the Bay Guardian published Friends in the Shadows in 2013, sounding the alarm about conflicted non-profits pouring dark money into receptive City agencies. Even official efforts to tackle soft corruption were repeatedly thwarted. As described in the June 2019 Westside Observer’s Struggle for Sunlight on Dark Money, Commissioners Daina Chiu and Yvonne Lee torpedoed the Ethics Commission’s plan to bring its ‘‘Anti-Corruption and Accountability Ordinance” to the voters.

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DPW’s subaccounts at the Parks Alliance amassed $990,000 and spent $980,000 ... $966,000 of that money was donated by 8 contractors who had received $572 million from DPW plus 7 companies that obtained 218 building permits from the Department of Building Inspection (DBI).”

Controller’s Public Integrity Reviews

On 6/29/20 the Controller’s Office, with City Attorney input, issued its first public integrity review looking at Department of Public Works (DPW) contracting practices. From July 2017 through March 2020, DPW awarded 366 contracts at a cost of $676 million. These contracts are being scrutinized but amazingly, the Controller found that; ‘’No entity is charged with full oversight over citywide procurement.”

Intriguingly, DPW is the only City department that issues construction contracts – without a Commission to approve them. Why is that? Well, the Controller found that when Mayor Ed Lee installed Mohammed Nuru atop DPW in 2011, he uniquely empowered Nuru to approve construction contracts solo. Though known as a rule-bender, Nuru was a reliable team-player. While loyalty trumps integrity at City Hall, someone eventually broke ranks. That enabled the FBI to report that Nuru et al accepted and offered bribes and rewarded cronies with City business.

The Controller’s second policy review focused on the relationship between the DPW and the non-profit SF Parks Alliance. The Parks Alliance functions like the many ‘‘Friends of…’’ outfits that financially support 33 out of 56 City departments. Essentially, these non-City entities are private-sector branches of City agencies. True, they raise philanthropic money for public interest projects that aren’t funded by department budgets. But, they often lack the controls to prevent pay-to-play or money-laundering schemes by private interests. The City can’t impose its own stringent gift requirements on non-City organizations. So, Nuru and company solicited private donations for DPW accounts held by the Parks Alliance then directed how those donations were spent. It was a slush fund, unmoored from City controls.

In the 4.5 years between July 2015 and January 2020, DPW’s subaccounts at the Parks Alliance amassed $990,000 and spent $980,000 – about $18,000 per month. Interestingly, $966,000 of that money was donated by 8 contractors who had received $572 million from DPW plus 7 companies that obtained 218 building permits from the Department of Building Inspection (DBI). One hand washed the other.

Of the $980,000 expended, $720,000 went to selected vendors who provided goods and services largely for DPW employee appreciation events. One such vendor, SDL Merchandising – owned by a DPW employee – received $164,885 for “shirts, caps and merchandise.” There’s no record of the quantities provided for this phenomenal expense. Other Nuru associates benefitted. Restaurateur Nick Bovis got $25,327 for catering while permit-expediter and contractor Walter Wong collected $41,673 for event set ups.

The other $260,000 of the $980,000 spent went to 164 individuals, mostly City employees. They were reimbursed by the Parks Alliance for their out-of-pocket expenses at DPW events. For example, Sandra Zuniga, Nuru’s partner and former director of the Mayor’s Office of Neighborhood Services, was reimbursed $10,464 for her employee appreciation and team building efforts. Three other DPW employees received more than $10,000, one of whom collected almost $60,000. This largesse spread upward to City Administrator Naomi Kelly who oversees DPW, and downward to rank and file workers. The 2019 holiday party for 350 DPW and City Administrator staff cost $40,000, of which $33,000 was solicited from folks doing business with DPW.

Isn’t it Illegal?

The Administrative Code requires City departments to report gifts to the Controller, obtain Board of Supervisors’ approval to accept and spend gifts worth more than $10,000, and annually publish the donor names, the types of gifts and their disposition. The Sunshine Ordinance requires disclosure of the true source of outside funds worth more than $100, as well as any financial interest the donor has with the City. DPW’s Statement of Incompatible Activities prohibits employees from accepting gifts in exchange for doing their jobs. Trouble is, laws don’t enforce themselves and “loyal” employees don’t report violations.

Unlike elected officials and commissioners, appointed department heads were not required to report “behested payments.” They could covertly ask contractors to donate to non-City organizations that supported their departments. Further, department heads were not required to disclose when donors to their non-City affiliates had contracts or permits from their departments. The Controller’s report identified these loopholes and on 9/24/20 the Mayor issued an Executive Order imposing gift reporting requirements on department heads. Yet the Controller’s report admits that the core failure was “the tone at the top,” namely management’s “disregarding of ethics and gift laws.” When bosses and their entourages are outlaws, tighter regulations are weak remedies.

As private entities, non-profit “Friends of…” organizations operate beyond the City’s purview – even though some receive City funding. For example, the Parks Alliance received $11.9 million from the City between 2015 and 2020. The Controller’s report emphasizes that if funds are spent for City purposes, non-profits that don’t publicly report donations, or that accept anonymous donations, are violating the Sunshine Ordinance. So what? While the City has a Sunshine Ordinance Task Force to adjudicate complaints, it cannot enforce compliance. That responsibility lies with the Ethics Commission. And Ethics habitually dismisses Sunshine violations referred for enforcement by the Task Force.

When did the City Guardians Know?

Now that the Feds have pounced on the City Family, the Controller pleads for better rules and enforcement .The Ethics Commission appeals for virtual public input to find “ways to strengthen San Francisco’s government ethics laws.” The City Attorney’s Office vows to “lead when it comes to clean government” as it follows the course set by the Feds by; canceling a $171,000 contract for portable toilets unfairly awarded to a Nick Bovis company, barring former DPW manager Balmore Hernandez’s engineering firm AzulWorks, Inc. from City work for 5 years for bribery, releasing 4 city employees and officials including DBI Director Tom Hui and DPW boss Mohammed Nuru, and issuing 24 subpoenas to companies implicated in schemes - uncovered by the FBI. Better late than never, some say. To be fair, this January Dennis Herrera did sue former Building Inspection Commission President, Rodrigo Santos, for a $420,000 check fraud scheme without apparent FBI guidance.

Still, the public needs to know why our own watchdog agencies missed the rot. Tips pertaining to the scandal have flooded into the offices of the Controller and the City Attorney since the Feds announced their charges in January. What about corruption tips submitted before the scandal broke?

The Controller’s Whistleblower Program, the Ethics Commission’s Enforcement Division and the City Attorney’s Public Integrity Team should audit all the complaints they received over the past 5 years. Then, disclose how many pointed to the corruption that festered undisturbed until the FBI and the US Attorney led the clean-up.

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

October 2020

Audit's Unanswered Questions:

Does the Ethics Commission Fight Corruption?
Ethics Executive Director LeeAnn Pelham
Ethics Executive Director LeeAnn Pelham
Ethics Executive Director LeeAnn Pelham
Ethics Executive Director LeeAnn Pelham
Man with fingers crossed behind his back

Expectations ran high after voters approved Prop K in 1993, launching the City’s Ethics Commission (Ethics). Finally: an official agency to counter corruption in government and political campaigns. But between intent and execution lurks a shadow – human nature. So, the quest for good government has vied with the pursuit of self-interest. Scandals and failings have repeatedly dashed public expectations. Civil Grand Juries pushed to strengthen Ethics in 2005, 2011 and 2014. Lapses prompted initiatives by the public, the Board of Supervisors, and the Commission itself to amend the Campaign & Governmental Conduct Code and redefine Ethics’ responsibilities.  

Curiously Coincidental Timing

One way that governments blunt the impact of scandals is to show that remedial measures were already underway. On 11/5/19 Supervisor Norman Yee introduced a Motion (File No. 191133) requesting a performance audit of the Ethics Commission by the Board’s Budget & Legislative Analyst (BLA) – “as a priority.”  No explanation for the “priority.” Meanwhile, the FBI had been investigating corruption at City Hall.

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The audit fails to mention that no retaliation claims have ever been sustained by the Ethics Commission. That startling fact has been hidden by reporting only that cases are “dismissed” or “closed.” The public is never told if a case was substantiated, partially-substantiated or not substantiated.”

On 1/15/20, the FBI filed a sealed Criminal Complaint in US District Court alleging that former DPW chief Mohammed Nuru had pursued 5 corrupt “schemes” since 2018. The following day, on 1/16/20, the Board’s Government Audits & Oversight Committee approved Supervisor Yee’s audit request. The rationale, as stated by Supervisor Gordon Mar, was to check if recent changes in campaign finance and lobbying laws were being addressed and to improve the timeliness of investigations and enforcements, given “a political landscape like the one we are in.” He added that “it seems as though the lowest hanging fruit are the targets of investigation rather than the more sophisticated operations.” Neither the “more sophisticated operations” nor the current “political landscape” were described.

Supervisor Norman Yee.
Supervisor Norman Yee

 On 1/21/20 the FBI arrested Nuru. After promising to keep mum about the FBI’s ongoing probe, Nuru alerted his boss, City Administrator Naomi Kelly. Soon, everyone knew – including FBI wire-tappers. On 1/28/20, the full Board unanimously adopted Supervisor Yee’s Motion, without mentioning the explosive scandal then rattling City Hall. The Motion cites extraneous and anodyne reasons for the audit, plus the Board’s policy that each City program “be the subject of a performance audit at least once every eight years.”  True, the Buget and Legislative Aanalyst last reviewed Ethics Commission practices in 2012. Still, the audit’s urgency and timing makes one wonder if Supervisor Yee was clairvoyant or tipped off.  

Audit Findings

Budget and Legislative Analyst Harvey Rose
Budget Analyst Harvey Rose / Courtesy Commonwealth Club.

The BLA’s 81-page “Performance Audit of the Ethics Commission” was released on 8/10/20. It contains 5 findings and 16 recommendations. The recommendations are largely directed at Executive Director LeeAnn Pelham who introduced many upgrades since January 2016. The findings are summarized below;

Assessing Effectiveness and Risks

The Ethics Commission needs to improve the way it assesses its own performance. For example, it hasn’t produced an Annual Report since 2014-15 and lacks consistent performance metrics. While Ethics has set priorities, it hasn’t adequately tracked and reported progress toward reaching its goals.

The risk of violating ethics laws varies among City officials and employees, depending on their jobs. However, Ethics does not tailor its training programs based on risk assessments. Doing so would promote compliance and reduce the need for enforcement measures.

Staffing

Ethics “has never been fully staffed.” Since 2016, it has struggled with a “high vacancy rate” - 19% or about 4.5 vacancies annually. Meanwhile, there have been 15 changes to the Campaign & Governmental Conduct Code that required additional administration and programming. Understaffing is largely due to slow hiring; it takes 6 months to hire a new Ethics employee. Ethics relies on the City’s Department of Human Resources to conduct its hiring – at a cost of $90/hour. Because Ethics lacks the funds to optimize DHR’s hiring, staff shortages persist and impede every program.

Audits

Audits of election campaign committees have taken almost 2 years to complete, thereby reducing their public relevance and hindering enforcement within the statute of limitations. Investigators lack audit training and the Audit Manual is way out of date. Also, Ethics has yet to conduct mandated lobbyist audits.

Investigations

Investigations of ethics violations take “more than two years on average” - actually 29 months. The “preliminary review” of complaints takes 6 months. Then, just 1/3 of complaints receive formal investigations. Because the Enforcement Division opens more cases than it resolves, there’s a mounting backlog.  Long-lingering investigations erode public confidence and the deterrent effect of enforcement.

Whistleblower Protection

The Enforcement Division is responsible for investigating whistleblower retaliation claims. On average, these claims have taken 32 months to resolve. Such delays impair the gathering of evidence and witness testimony as well as the integrity of investigations. Further, Enforcement Division staff lack training in whistleblower retaliation investigations since these involve employment law rather than ethics law.

Ethics veils the outcomes of retaliation investigations. When the BLA reviewed 34 retaliation claims filed over 3 years from 2017 through 2019, it found that 20 were dismissed due to “insufficient evidence”, 2 were withdrawn, and 12 were pending. None were substantiated. Importantly, the BLA recommended that staff “…report on whistleblower retaliation case outcomes to the Ethics Commission on an annual basis, including reasons for dismissals and case closures, to enhance transparency of these investigations.”  

Unmentionables

The audit fails to mention that no retaliation claims have ever been sustained by the Ethics Commission. That startling fact has been hidden by reporting only that cases are “dismissed” or “closed.” The public is never told if a case was substantiated, partially-substantiated or not substantiated. Yet the substantiation rate is an important indicator. It reflects the effectiveness of investigative processes as well as quality of the complaints submitted.  Per the 2020 Hotline Benchmark Report by NAVEX Global, a risk and compliance management firm serving 3,255 organizations, the global substantiation rate for whistleblower retaliation claims was 23% in 2019. And in the 9 years from 2011 through 2019, the average substantiation rate was 20%. Compare that with 0% for more than 100 retaliation claims handled by our Ethics Commission since 1995.

The Westside Observer analyzed Ethics’ shifty history of dismissing all whistleblower retaliation complaints back in June, September and October of 2013. Sadly, Ethics remains a dead-end for mistreated whistleblowers. Still germane is former Ethics Commissioner Joe Lynn’s 5/7/09 Fog City Journal revelation that Ethics investigations of Sunshine Ordinance complaints “uncover willful violations only if the respondent decides to confess.” That also explains why retaliation claims are DOA. This failure to enforce the City’s Whistleblower Protection Ordinance renders it meaningless. It also makes it deceptive – a trap for naive complainants. Non-enforcement gives retaliators a green light to pursue whistleblowers without consequences. Ultimately, taxpayers foot the bill when ineffective Ethics investigations force whistleblowers to sue the City.

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That also explains why retaliation claims are DOA. This failure to enforce the City’s Whistleblower Protection Ordinance renders it meaningless. It also makes it deceptive – a trap for naive complainants. Non-enforcement gives retaliators a green light to pursue whistleblowers without consequences.”

 

After the BLA’s call for reporting whistleblower retaliation case outcomes, LeeAnn Pelham produced a table on page 13 of the draft Annual Report.  It lists some outcomes – but not how many cases were substantiated. Withholding that number conceals a zero substantiation rate. Ethics hasn’t explained this shady track record, apart from implying that every retaliation claim is unfounded. More likely, Ethics investigations are superficial and deficient. Too, investigations are tainted when under-trained and over-worked Ethics staff seek counsel or coaching from City Attorneys who are sent copies of complaints.

Whistleblower claims are often denied after consulting with City Attorneys. This practice arouses conflicts of interests. City Attorneys strive to minimize the City’s exposure to civil liability – no matter how damning the facts. They have a duty to defend officials and employees accused of retaliation. They justify their work as protecting taxpayer funds from greedy plaintiffs. Invariably, protecting City officials and the public purse takes priority over protecting whistleblowers. In retaliation cases, relying on advice from City Attorneys favors respondents over complainants - and abets reprisals.     

Also absent from the audit is how Ethics must annually bow and scrape before the Mayor’s Office and the Board of Supervisors to fund its budget. Ethics is thus beholden to, if not controlled by, the very folks it supposedly monitors for unethical conduct. Instead of being independent, Ethics is captured. One solution is to fund Ethics the same way the Controller’s City Services Auditor is financed – by a set portion of the City budget. For example, Ethics’ operating budget of $4.6 million could be covered by an automatic 0.04% cut of the City’s $13.7 billion budget, thereby reducing its fiscal dependency on City Hall.

September 2020

Money Down the Drain
A Subpoena for SFPUC Skullduggery
David Anderson
US Attorney, David Anderson

On June 15th, 2020, US Attorney David Anderson delivered a Grand Jury subpoena to the City’s Public Utilities Commission (SFPUC). A copy was examined by the Westside Observer. The SFPUC’s 2,500 employees manage the City’s water, sewage and power systems with a $1.4 billion budget. The federal subpoena demanded the resumes, job descriptions, and performance evaluations for “any PUC employee who earned at least $100,000” since 2010. Also subpoenaed were their Statements of Economic Interests, proof of completing Ethics and Sunshine Ordinance training, as well as credit card reports and requests for reimbursement. Evidently, the feds are probing cronyism as well as self-dealing.

Specifically named were General Manager Harlan Kelly and Assistant General Manager for External Affairs Juliet Ellis. They had to provide all records of trips taken since 2005, including expense reports and reimbursement requests. Their personnel files were subpoenaed as well as documents showing they reviewed, recommended or approved certain contracts with the SFPUC since 2010. Some of these contractors were recently charged with corruption, alongside former DPW chief Mohammed Nuru. A notable in the “City Family”, Nuru reported to City Administrator Naomi Kelly, who is married to Harlan Kelly. Per Transparent California, Harlan Kelly earned $472,737 in salary and benefits last year, while Juliet Ellis made $304,900.

Harlan Kelly
SFPUC General Manager, Harlan Kelly

In January 2014, the Ethics Commission and the State Fair Political Practices Commission (FPPC) found that Juliet Ellis had steered a $200,000 SFPUC no-bid contract to Green for All, an Oakland non-profit where she also served as a paid Board member and Acting Executive Director. Ellis admitted to violating State and City conflict of interest laws, but Harlan Kelly stood by her. She was fined $3,500 by the FPPC plus $5,000 by Ethics. She returned $17,000 she had earned at Green for All, and its contract with the SFPUC was canceled. Although Ellis had completed the City’s ethics training, Ethics investigators felt that her violation was “not intentional.” Deemed simply “oblivious” to her conflict of interests, she was fined 25% of the maximum allowed.

Juliet Ellis
Assistant General Manager for External Affairs, Juliet Ellis

Neighborhood Watchdogs

Neighborhood watchdogs haven’t been so oblivious. Since July 2015, the Westside Observer’s Steve Lawrence has warned of the pitfalls of SFPUC’s contracting practices because bidders are judged not purely on price but 35% on “quality factors” like promises to help “underserved communities with social programs.” Since contractors seek and receive guidance from the SFPUC, Lawrence sees a form of “tribute” that invites favoritism and corruption. Ultimately, ratepayers pay for these extracted social benefits as well as fat salaries, perks and unchecked bond debts. Meanwhile, SFPUC service charges have soared beyond the rate of inflation.

In a July 2020 Marina Times article, Susan Dyer Reynolds critiqued Juliet Ellis and the Community Benefits Program she pioneered at SFPUC. Designed to help underserved communities, the Community Benefits Program “invites” SFPUC contractors to disburse a percentage of their income to non-profits serving local communities. The flaw in this beneficence is that the SFPUC informs contractors about non-profits that deserve their donation. That’s where pay-to-play creeps in. The problem, as Reynolds details, is that; “There’s no oversight, no voting, no public input and no transparency. Ellis and her team run a shadowy show that makes it impossible for outsiders to find out exactly how the money is spent.” Similarly, in a 2/14/19 Resolution, the SF Labor Council criticized the opacity of SFPUC staff and consultants “who have requested payments from Union signatory contractors to preferred non-profit agencies” and who promote “undisclosed unilateral hiring.” Oddly, SFPUC’s 5 Commissioners and its 17-member Citizens’ Advisory Committee have yet to address any of the shadowy practices now under federal scrutiny.

SFPUC Whistleblowers

For years, some SFPUC employees have complained about cronyism and corruption. Needless to say, they’ve seen little response - except for reprimands for airing dirty laundry. For some 500 Wastewater Enterprise (sewers and stormwater) employees, there’s even a Workplace Climate Expectation Policy that prohibits “talk about other people’s poor performance in a public forum.”  

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Cronyism splits workforces into insiders and outsiders, leading to mistrust in management. Worse, cronyism begets more cronies who protect each other by excusing poor performance and ethical lapses ... Workers who strive to obtain the required qualifications get demoralized. Those who are arbitrarily granted plum jobs, along with substantial salary and pension boosts, are beholden to their benefactors and unlikely to challenge managerial misconduct.”

Sources within the SFPUC (not named to avoid reprisals) tell us that cronyism and favoritism have pushed hiring and promotion decisions into predetermined outcomes. There’s more. Among the allegations were; promoting unqualified workers, employment discrimination, filing false inspection reports, overlooking dumping violations, and helping politically connected restaurants to dodge penalties for clogging sewers with illegally discharged grease. Such claims have reached the Whistleblower Program, the Ethics Commission, the City Attorney, the DA, the Environmental Protection Agency, Federal Court - and even the FBI. These rumblings, and articles in neighborhood newspapers, probably caught the eye of US Attorney Anderson given the analogous focus of his subpoena.

Indignation arises when the SFPUC’s own job requirements are not followed. For example, the Wastewater Enterprise has 4 Supervising Inspectors who ensure that wastewater treatment protects public health and the environment. A key qualification for this job is a Grade 2 Environmental Compliance Inspector Certificate (aka Industrial Waste Inspection Certificate, Grade ll) from the California Water Environment Association (CWEA). But the CWEA Registry shows that 2 of the 4 Supervisors lack that required credential; Audie Ilejay has a Grade 1 or “Entry Level” certificate while no certification appears for Mark Middleton. Apparently, their former and current bosses let these lapses go. We asked the SFPUC to explain the missing credentials - "no responsive documents." According to Transparent California, Middleton earned $191,608 with benefits in 2019 and Ilejay earned $197,339.

Part of the problem, sources say, is that some SFPUC higher-ups are themselves thinly qualified. So they feel safer with “loyal” rather than competent subordinates. Accordingly, compliant employees may get promoted even if they lack required credentials. Some long-time employees are troubled by what they see as a decline in the educational backgrounds of their managers. One such oft-mentioned boss was former Wastewater Enterprise Manager, Tuamelie (Tommy) Moala, whose 2007 application for the 0941 Manager VI position, viewed by the Westside Observer, lacked the required Bachelor’s Degree. However, Moala qualified for the job because he had some college credits and a substitution clause allowed his years of work experience to replace the degree requirement. In his last year, 2017, Moala collected $301,840 in salary plus benefits, yielding a $103,794 pension in 2019 per Transparent California.

Another way to slip under-qualified employees into higher positions, sources say, is to appoint them in an “Acting” capacity. Acting appointments don’t undergo the type of Civil Service vetting required for permanent positions. There’s no open application process or interviews by an expert panel. “Acting” appointees can gain job experience that provides the qualifications they initially lacked. Meanwhile, already-qualified employees are denied opportunities. Amazingly, the July 2020 Wastewater Enterprise Organizational Chart shows that 10 of the top 25 managers (40%) are “Acting.”

Cronyism and the City Family

Cronyism splits workforces into insiders and outsiders, leading to mistrust in management. Worse, cronyism begets more cronies who protect each other by excusing poor performance and ethical lapses. For the SFPUC, there are costs beyond the public and environmental safety risks of promoting under-qualified employees. The professional time and effort expended to develop job descriptions is wasted when minimum qualifications are disregarded. Workers who strive to obtain the required qualifications get demoralized. Those who are arbitrarily granted plum jobs, along with substantial salary and pension boosts, are beholden to their benefactors and unlikely to challenge managerial misconduct.

As the Westside Observer previously reported, employee outrage over favoritism also erupted within the Human Services Agency as well as the Department of Public Health. This disquiet may be traced to the Newsom administration’s 2005 “Civil Service Reform,” whereby 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. Such “flexible staffing” can undermine merit-based employment and trigger costly accusations of discrimination.

A ray of hope emerged from SFPUC’s Wastewater Enterprise Business Plan that vowed to improve “competency-based training” and “certification standards.” Similarly, a 7/14/20 “Workforce Equity Analysis” pledged to reduce bias “at points that managers use judgment,” as in hiring, performance evaluations and discipline. These plans have received the impetus to materialize now that federal prosecutors are targeting SFPUC’s management.

Acknowledgment: Thanks to the former and current SFPUC employees who provided tips and guidance.

August 2020

City Attorney's Retaliation Blows $12.2 Million In Whistleblower Fiasco
Dennis Herrera and 12 million + loss
City Attorney Dennis Herrera Source: City Attorney’s Office
Dr. Derek Kerr
Dr. Derek Kerr

The City Attorney’s calamitous war against Joanne Hoeper’s Whistleblower Retaliation lawsuit has cost taxpayers $12,198,473. This whopping expense passed unnoticed due to maneuvers that we’ll describe a bit later. Here’s the breakdown;

Sewer-Gate: The Backstory

Joanne Hoeper
Whistleblower
Joanne Hoeper

The Westside Observer (WSO) has covered this saga since September 2014. Briefly, Jo Hoeper served as Dennis Herrera’s Chief Trial Deputy since 2000. In December 2011, the FBI notified her about fraudulent sewer repair claims submitted to the Claims Unit within the City Attorney’s Office (CAO). Hoeper’s investigation found that claims to replace sewers, allegedly damaged by City-owned tree roots had soared from $142,000 in 2002 to over $4 million in 2010. During the same period, the City paid a total of $4.8 million for “sewer-property damage.” No other California city paid so much for tree root invasions. Hoeper estimated that shady sewer claims had cost the City $10 million.

Plumbing companies used the Department of Public Works (DPW) list of streets with city-owned trees to target, then hustle homeowners into replacing sewer lines that were not damaged. Sales pitches promised that the City would pay, even when property owners were responsible for repairs. Several homeowners reported that their sewers had been replaced without permission and that plumbers badgered them to sign claims. Many claims were signed by plumbing company agents rather than property owners, making them invalid. Sewers were usually replaced rather than inexpensively repaired. And, sewer replacements charges were inflated by $3,000 above standard rates. The Claims Unit also allowed private plumbing companies to fix sewer lines that were the responsibility of DPW – without the required bidding process. Accordingly, taxpayers were funding private property improvements and plumbing company bonanzas.

quote marks

…the lawsuit and jury verdict serve a significant benefit on the general public: to deter government officials from engaging in unlawful retaliation against a whistleblower, in violation of various statutes. — Court documents

Hoeper’s warning about corrupt sewer claims caused a furor. Policies were revised. But in July 2012 she was ordered to wrap up her investigation. She turned in a report recommending further investigation of potential corruption plus an audit. Essentially, she faulted oversight within the Claims Unit - and the City Attorney’s Office. One week later, Herrera offered her a choice; unemployment or reassignment to the District Attorney’s Office. Once Hoeper transferred, the sewer probe evaporated. In January 2014, Herrera fired her.

Six Years of Costly Legal Wrangling

A generic square placeholder image with rounded corners in a figure.
John Keker

Hoeper filed a whistleblower retaliation claim on July 1st, 2014. Two months later, Herrera issued an indignant rebuttal. Mediation failed as Hoeper asked for $1,895,000 while Herrera countered with $355,000. Casting CAO lawyers aside, Herrera hired the powerhouse law firm of Keker & Van Nest at a dazzling $850/hour. Sometimes, hiring big-guns cows plaintiffs to capitulate. The opposite happened after a stunning blunder; CAO spokesperson Matt Dorsey was allowed to email Herrera’s rebuttal to the Westside Observer stating: “I read with interest your column on former Deputy City attorney Joanne Hoeper’s claim against city taxpayers for monetary damages, and thought you might be interested in the city’s formal response…”

This disclosure undermined Herrera’s central argument; that Hoeper could not reveal similar information to prove her case because it was attorney-client privileged.

Once Hoeper filed suit in January 2015, the City immediately sought dismissal arguing that she relied on protected attorney-client communications. On June 1st 2016 that claim was rejected in Superior Court – because the City had already leaked its version of events to the Westside Observer and the SF Chronicle. Further, the Court objected because the City’s “sweeping notions of privilege would bar most retaliation claims by attorney employees.”

The City then sought review by the Court of Appeal and the California Supreme Court. Both petitions were denied. On March, 17th, 2017, after a 13-day trial in Superior Court (Case # CGC-15-543553), Hoeper won a unanimous jury verdict and $2,630,987. That award included $601,630 for past lost earnings (doubled pursuant to the False Claims Act), $136,318 for future lost earnings, and $1,291,409 for emotional distress. The City filed a motion for a new trial. Motions contesting the verdict and awards followed. All were denied. Instead of settling the City kept brawling.

Hoeper’s motion to recover attorney’s fees was vigorously opposed by Keker & Van Nest. Ironically, their $850/hour rate surpassed what her attorneys charged. They sought to cut 319.5 hours from her attorney’s services. The Court approved a 34.6 hour cut, thus saving a measly $15,950. Meanwhile, legal fees mounted. Since Hoeper’s attorneys took her case on a contingency basis, they were entitled to a “multiplier” to boost their fees. Courts grant multipliers to encourage law firms to pursue public interest cases when clients can’t pay up front. Hoeper requested a multiplier of 2.0 whereas the City opposed any enhancement. The judge awarded a 1.35 multiplier because; “…the lawsuit and jury verdict serve a significant benefit on the general public: to deter government officials from engaging in unlawful retaliation against a whistleblower, in violation of various statutes.”

On August 3rd, 2017, the Court awarded Hoeper’s attorneys $ 2,408,468 in trial fees. To this sum the Court added; $226,046 in post-trial fees, $56,512 in interest to the original jury award, $68,141 in interest on back-pay, plus $80,984 in costs, for a total Judgment of $5,471,138.  The City’s one-sided campaign to cut costs had backfired. Instead of settling, Herrera charged headlong down a blind alley.

Karl Olson.
Lead Attorney: Therese Y. Cannata

On September 25th, 2017, the City appealed the judgment. Then came an intriguing switch; the appeal was handled by City attorneys rather than the pricey losers at Keker & Van Nest. In an exhaustive 97-page brief, the City argued that the trial court wrongly let Hoeper introduce evidence that was attorney-client privileged, that the jury erred in its finding of whistleblower retaliation, that Hoeper failed to mitigate her damages, and that her award for emotional distress was excessive. After poring through 4,000 pages of court records, Hoeper’s attorneys responded with a compelling 85-page rebuttal. The City then filed a 59-page reply brief.  On February 13th, 2020 the Court of Appeal unanimously rejected the City’s pleadings, stating; “None of these arguments is meritorious.”

Karl Olson.
Karl OlsonPhoto: Mountain Democrat

Beyond the legal trouncing, the 29 months of appeal-wrangling would be costly. Looming was the 7% interest on Hoeper’s unpaid $5,471,138 award - amounting to $1,049 per day. Another 1.35 multiplier hovered over her current attorney’s fees. Surely, the City would negotiate a settlement. Instead, after spending a month pondering a last-ditch appeal to the California Supreme Court, the City folded. On April 2nd, 2020, Deputy City Attorney Jonathan Rolnick informed Hoeper’s attorneys that he had been “asked to handle the resolution of the judgment.” Still, no settlement proposal.

DCA Rolnick reviewed – but did not contest - Hoeper’s May 5th, 2020, proposal for reimbursement of appeal expenses. Records show no City objections to the hours, rates and services detailed in laborious Declarations from her attorneys. The City simply agreed to an Amended Judgment that the Superior Court approved on May 19, 2020. Here’s the breakdown;

Judgement breakdown
Source: City Attorney's Office

Dodging Public Scrutiny

Records show that the CAO asked the Controller to pay $7.3 million to Canatta, O'Toole, Fickes & Olson – Hoeper’s lawyers. The money came from the City’s General Fund. In a 5/28/20 email, DCA Rolnick explained; “This was the quickest way to get the $ out the door and given the other issues the Controller is dealing with did not want to delay further.” It was also the quietest, least embarrassing way.

Saving face may explain the sudden ardor for the “quickest way” after dragging the case out for years. It also explains why post-trial settlements weren’t proposed. Settlements require a hearing and approval by the Board of Supervisors. By accepting defeat without a settlement, the payout eluded public inquiries and media coverage. Public scrutiny was also skirted by shelling out amid the COVID-19 tumult.

Records show that Herrera spent openhandedly to defend himself. The Westside Observer requested records showing that the CAO attempted to reduce the fees charged by Keker & Van Nest. No such records were provided. However, by using City attorneys to pursue the appeal, legal fees fell to one-third of Keker & Van Nest rates. Had the City deployed its own attorneys from the outset, about $2.8 million could have been saved. Another $2.2 million or so would have been saved without the appeal. We asked the CAO why it didn’t attempt a post-trial settlement; no response.

The City Attorney’s retaliatory sewer-gate debacle, alongside the FBI’s recent arrest of DPW chief Mohammed Nuru and others for public corruption, jab at the City’s anti-graft capabilities. As Hoeper wrote in “But Who Will Watch the Watchdog” in the February 2020 Westside Observer, her case casts doubt that the CAO can “conduct an impartial and thorough investigation into the allegations that led to the arrest of Mr. Nuru.”

In a June, 2003 Press Release, Dennis Herrera had praised Joanne Hoeper as “a public wrongdoer’s worst nightmare.” Back then, her efforts to “stamp out public corruption through aggressive legal action” were celebrated. Once Hoeper found fraud-enabling practices within his office, Herrera apparently contrived a pretext for termination – her supposed penchant for “knowing more than anyone else,” resorting to a “scorched-earth approach” and not making “earlier and more frequent efforts to settle.” In pot-versus-kettle irony, Herrera failed to follow his own counsel. Had Herrera listened to the jury and judges, tempered his lawfare, and settled earlier, taxpayers and whistleblowers would have thanked him.

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

July 18, 2020

Turmoil at Taraval Police Station

Captain Rainsford and Taraval Station
Captain Nick RainsfordPhoto: Ingleside Light
...
Dr. Derek Kerr

On June 17, the SF Examiner reported that Taraval Station’s Captain Nicholas Rainsford had been “relieved of his command and placed under administrative investigation.” Reportedly, Police Chief William Scott had “abruptly transferred” Rainsford to SFPD’s Homeland Security Unit. Although an SFPD spokesperson declined to provide details, Examiner sources indicated that such removals were typically driven by “significant misconduct” or when an officer’s ongoing presence “poses a threat” to officers or the community.

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Morale was sagging. Capt. Rainsford addressed the officers and apparently referenced how the police had handled previous protests. His exact statement is not known, but one officer thought it was wrong, felt offended and filed a complaint. Internal Affairs got involved..."

The Westside Observer (WSO) sought comments from Captain Rainsford but received no response. Lt. Aaron Lozada who was appointed Acting Captain on June 12th, told the WSO that he would manage day-to-day operations “until Chief Scott assigns a permanent captain”, and had “not identified any changes to station operations”.

Sources within the SFPD (not identified due to fears of retaliation) told the WSO that the trouble began at a watch line-up as officers were being deployed to protests over the death of George Floyd and police use of force. Morale was sagging. Capt. Rainsford addressed the officers and apparently referenced how the police had handled previous protests. His exact statement is not known, but one officer thought it was wrong, felt offended and filed a complaint. Internal Affairs got involved. Capt. Rainsford was removed and the other officers at the watch line-up were told they were under investigation for not speaking up. Official confirmation of this narrative is not available because the matter is under investigation.

This event is reminiscent of a 2016 Taraval Station controversy during the tenure of Captain Denise Flaherty. A few months after the police shooting of Mario Woods, someone had posted a Wall Street Journal Op-Ed titled “The Myths of Black Lives Matter” on a bulletin board displaying officer assignments. Authored by conservative lawyer Heather MacDonald, the Op-Ed cited data that challenged the “misrepresentation of police shootings.” An affronted officer photographed the posting and sent it to the Examiner. In its report on the “Anti-Black Lives Matter article,” the Examiner raised concerns about using City property for “political activity.” MacDonald fired back in an Opinion piece, arguing that “citizens do not lose their First Amendments rights when they work for the government.” She proposed that the Examiner would not have questioned the legality of posting an Op-Ed arguing that policing suffers from systemic racism. An SFPD investigation determined that the Op-Ed was “not political in nature” and did not violate City rules against endorsing candidates or campaigns.

The incident with Capt. Rainsford seems more serious than the 2016 Op-Ed controversy. That may be due to the context. Unprecedented social reactions to violent police interventions are driving extraordinary political responses. The scourge of COVID-19 intensifies frustrations, conflicts and the growing tendency to silence opposing views. In this time of ferocious reactivity, the value and plight of police whistleblowers must be balanced with the record and rights of those accused.

Captain Rainsford’s re-assignment may be temporary. As of 7/1/20 the SFPD still identified Rainsford as Taraval Station’s commanding officer. No other Captain has been assigned to Taraval Station. There has been no public announcement of his reassignment by the SFPD or the Police Commission. Neither Supervisor Norman Yee nor Supervisor Gordon Mar, whose districts are partly covered by the Taraval Police Station, was notified.  As Supervisor Mar aptly tweeted, such sudden and sub rosa reassignments “undermine trust and relationships with the community.”

A native son, Nick Rainsford was born and raised in the Parkside neighborhood of the Sunset District. After attending St. Gabriel’s Grammar School and Sacred Heart High School, he joined the USMC Reserves and worked in construction. He joined the SFPD in 1994, working at the Bayview, Central, Tenderloin, Richmond, Ingleside and Taraval Stations and earning promotions along the way. After serving as Captain of the Staff Services Division that oversees the recruitment and staffing, he became Taraval Station’s Captain in December 2018. In that capacity, he focused on violent crime, car break-ins and home burglaries as well as traffic safety. He wrote an informative column for the Richmond Review/Sunset Beacon and monthly editorials for Taraval Station’s outstanding website.  According to openpayrolls.com, Capt. Rainsford earned $222,786 in 2019.

The Taraval Police District is the City’s largest and most populous. It is bordered by Golden Gate Park to the north, Ocean Beach to the west, Daly City to the south, and 7th Avenue down to Interstate 280 to the east.

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

July 3, 2020

Vicente Beach Entry

Deadly Rip Currents at Ocean Beach

Ocean Beach is notable for powerful swells that attract surfers, nature lovers and locals seeking respite from confinement. Less visible are treacherous rip currents that can drag swimmers out to sea where panic, exhaustion and frigid waters can quickly cause drowning. Prominent signs warning of the dangers of swimming and wading are easily overlooked amidst the captivating scenery.  On a recent visit, signs were covered by Black Lives Matter T-shirts relevantly stating “I Can’t Breathe”.

Current warning sign  

After a record 7 people drowned in 1998, the National Park Service implemented a beach patrol that advises visitors and responds to emergencies. Since then, annual drowning deaths at Ocean Beach haven’t exceeded two. Because Ocean Beach is not a designated swimming area and because its 3.5 mile stretch would be prohibitively costly to supervise, lifeguards are not routinely assigned there. Also, the presence of lifeguards could mislead visitors into thinking that swimming was endorsed.

As reported by Hoodline on June 11, 5 East Bay teens were caught in a rip current at the area of the beach near Vincente Street. Fortunately, the boys’ frantic struggles were noticed. Workers from the Park Service and Fire Department collaborated on the rescue. Ambulances rushed the boys to the hospital. All suffered from hypothermia. One 16 year old went to the ICU in critical condition. Three teens were hospitalized in serious or stable condition. One soon recovered and was discharged home.

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...annual drowning deaths at Ocean Beach haven’t exceeded two. Because Ocean Beach is not a designated swimming area ... lifeguards are not routinely assigned there. Also, the presence of lifeguards could mislead visitors into thinking that swimming was endorsed.”

Ominously, just one week before, 31 year old Daniel Nebout and a 22 year old companion were similarly seized by a rip current on Ocean Beach near the SF Zoo. Both were rescued but Nebout emerged unconscious and required CPR. Sadly, he died at SFGH although his surfing companion recovered.

Covered Current warning sign

The incident with the 5 teens is reminiscent of an April 2016 tragedy. Five students from Vallejo High School decided to lock arms and wade waist-deep into the surf. An unexpected wave knocked them apart. Two 16 year olds, Grisham Duran and Wayne Ausa, were swept out to sea and lost. Then-Supervisor Eric Mar sponsored a 5/12/16 hearing before the Public Safety and Neighborhood Services Committee where every agency involved in safety monitoring, as well as rescue and recovery efforts described their services. The SF Fire Department deemed Ocean Beach the most dangerous in the nation. In 2015 alone, the Park Service conducted 52 aquatic rescues of which 19 required hospital attention.

Despite enhanced signage and rescue patrols, casualties among unwary swimmers have occurred yearly since the 7 deaths in 1998. Between 1998 and 2006, 7 deaths were reported. In January 2006, the body of 33 year old San Franciscan and novice surfer Sean Fahey washed up near Sloat Blvd. Then in May 2006, Marlin Coats, a 29 year old San Franciscan drowned while trying to save 2 boys who were struggling in the surf. The boys were hospitalized for hypothermia but recovered. In April 2014, Abel Cornejo, his 14 year old son Marcos and a cousin were swept away. While the cousin was saved, the father ended up in a coma in the ICU at UCSF and young Marcos was lost at sea. Ocean Beach claimed another surfer who drowned in August 2016. A swimmer was lost in the surf near the Cliff House restaurant in August 2017. In December 2018, Jay Seideman, a 43 year old tech executive from Oakland, succumbed to a rip current. In July 2019, a stricken surfer required CPR after being rescued then was hospitalized in critical condition. Many more rescues and near-drownings did not receive media attention.

Current warning sign

Navigating the Rips at Ocean Beach

Rip currents or “rips” make Ocean Beach a perilous recreational area. Nationwide, rip currents account for 80% of beach rescues. Three foot waves can strike with surprising force, tossing waders off their feet. Encountering a rip in a few feet of water can pull the strongest swimmers out to sea. A UC Berkeley oceanographer explains that rip currents arise when incoming waves are deflected by the beach into an underwater channel that funnels the water out to sea. Such coastal streams are deceptive. By flowing out through the surf zone, rips create a calm spot that seems ideal for wading but is actually hazardous. Rips move at a rate of up to 8 feet per second, making it impossible to swim against the flow. Those who panic and fight the current are soon exhausted. They are further incapacitated because the water at Ocean Beach stays at a bone-chilling 56 degrees even in the hottest months. Drowning can occur in a few minutes.

A handy YouTube video shows how to identify a rip and escape it. Comprehensive information about rips has been compiled by surf scientists with the National Weather Service. Happily, rip currents will not pull swimmers underwater. The keys to survival are; do not panic and do not attempt to swim against the current. Since rip currents are typically 50-100 feet across, they can be evaded by swimming parallel to the beach until free from the flow, then paddling back to shore. Alternately, since rips subside beyond the area of breaking waves around 150 feet from shore, one can float or tread water until the current dissipates, then swim back to shore away from the rip zone.

Ocean Beach experts advise that even wading at ankle depth is risky. Safer yet, stay out of the water.  

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

June 15, 2020

The Enigma of COVID-19 Immunity

isolation

Since SARS-CoV-2 is a new virus, nobody was considered immune to it. Hopes were that recovering from COVID-19 would generate antibodies, thus conferring immunity and peace of mind. Plus, survivors could help treat newly-infected COVID-19 patients by donating their convalescent plasma. It's not that simple.

Briefly, the immune system consists of humoral immunity in the form of circulating proteins called antibodies as well as cellular immunity represented by white blood cells that interact to destroy foreign pathogens. Part of this system is innate or present at birth. Another is adaptive, evolving in response to pathogen exposures. Both components weaken in elderhood. There are 2 kinds of antibodies; neutralizing antibodies that inactivate pathogens versus those that merely bind to them without halting replication. Neutralizing antibodies are key protectors against infectious diseases like COVID-19 but they emerge after infection or vaccination.

Antibodies Do Not Ensure Immunity

A recent study from Shanghai showed that among 175 patients who recovered from COVID-19, 30% had very low or undetectable neutralizing antibody levels. Similarly, researchers at Rockefeller University found that among 149 convalescent patients, 33% had no detectable neutralizing antibodies while 46% had low levels. Since all these patients recovered, presumably the cellular component of the immune system fought off the virus. Still, a SARS-CoV-2 vaccine could also fail to generate protective antibodies in a sizeable sub-population.

Even if neutralizing antibodies do develop, it’s not yet known how long they last or the amount needed to inactivate SARS-CoV-2. Some viral infections like the common cold – often caused by different coronaviruses, generate meager and transient antibody levels that do not bestow lasting immunity. As for the antibodies to the coronaviruses that caused MERS and SARS, they declined after several months. Likewise for antibodies arising after influenza - and flu vaccines. In the case of AIDS, there’s an abundance of antibodies to HIV but they are non-neutralizing duds. After decades of research, we still have no vaccine against AIDS or any coronavirus.

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Contra these gloomy laboratory studies, clinical findings from South Korea bring optimism to the specter of re-infection. Among 263 patients who fully recovered from COVID-19, then tested positive for SARS-CoV-2 weeks later, none harbored viable viruses. They were no longer infectious.”

Another reason why viral infections evade the immune system is that viruses mutate so they aren’t recognized as threats. Preliminary data from China indicates that SARS-CoV-2 mutates frequently and some strains are 270 times more virulent than others. The deadlier mutations recovered from Chinese patients were also noted in patients across Europe – and New York State. The milder strains resembled those in Washington State. Thus, mutations may partly account for the variable mortality rates seen in different regions. A non-peer reviewed article by Korber et al identified a more infectious SARS-CoV-2 mutation dubbed “D614G” that is replacing the original Wuhan virus across the globe and ravaging Italy and New York. Though challenged by other scientists, such mutations, like those of the flu virus, could make it harder to develop an effective vaccine or to prevent re-infection.

Antibodies, whether acquired by natural infection or vaccination, may not be protective. In a scientific brief dated 4/24/20, the World Health Organization rejected antibody tests to grant “immunity passports” – certificates allowing survivors to circulate freely without fear of re-infection. WHO declared; “There is currently no evidence that people who have recovered from COVID-19 and have antibodies are protected from a second infection”. Also, many antibody tests are unreliable. Scientists warn that segregating society on the basis of dubious biologic data can threaten freedom as well as public health.

Paradoxically, vaccines can increase the susceptibility to and the severity of infections.  This “antibody-dependent enhancement” has already thwarted the development of coronavirus and HIV vaccines, among others. Vaccines that induce weak or low-level antibodies are more likely to trigger inflammation and lung damage after infection. Accordingly, expediting a SARS-CoV-2 vaccine via “Operation Warp Speed” that curtails safety testing is risky. And infusing antibody-rich plasma from recovered donors into COVID-19 patients should proceed cautiously. Adverse reactions may be minimized with purified neutralizing antibodies now being tested.

The Virus Disrupts the Immune System

SARS-CoV-2 binds to ACE-2 receptors that are found throughout the body, notably the airway and lungs as well as the lining of blood vessels, the heart and kidneys. This explains the widespread organ involvement in critically ill patients. Some patients succumb to an unruly inflammatory cascade called a “cytokine storm” whereby the body’s own white blood cells attack organs infected by the virus. A related immune over-reaction called “multi-system inflammatory syndrome” has affected some children weeks after being exposed to SARS-CoV-2.

Conversely, SARS-CoV-2 weakens the immune system by binding to CD-147 receptors on lymphocytes that attack the virus. Thus, anti-viral immune cells get infected by the virus they are supposed to destroy.  Not only do COVID-19 patients show markedly depressed lymphocyte counts, but those who are severely ill show “functional exhaustion” of anti-viral lymphocytes. So SARS-CoV-2 acts like HIV by neutralizing a key component of the immune system. Controversially, Dr. Luc Montagnier, winner of the 2008 Nobel Prize in Medicine for discovering the Human Immunodeficiency Virus that causes AIDS, asserted that SARS-CoV-2 is a lab-created virus containing HIV genetic sequences. He believes it emerged from the Wuhan Institute of Virology after modifying a coronavirus to develop an AIDS vaccine. 

When normal cells are infected, they change in ways that are recognized by the body’s immune system. However, SARS-CoV-2 camouflages the cells it infects, resulting in “immune evasion”. By hiding its tracks, the virus “reduces the recognition and elimination of virus-infected cells”. This mechanism could allow SARS-CoV-2 to become a chronic infection like Hepatitis-C or AIDS and may explain why some patients experience prolonged illness, symptoms and viral shedding.

Contra these gloomy laboratory studies, clinical findings from South Korea bring optimism to the specter of re-infection. Among 263 patients who fully recovered from COVID-19, then tested positive for SARS-CoV-2 weeks later, none harbored viable viruses. They were no longer infectious. The diagnostic test merely detected RNA fragments from “dead virus” that can take several months to clear from convalescent patients.  Unlike HIV, SARS-CoV-2 did not infiltrate the DNA of host cells, making it doubtful to result in chronic infection or recurrence. Although antibodies in these patients were deemed protective, solid evidence of immunity from re-infection is lacking, coming from non-peer reviewed experiments on 4 monkeys. Given COVID-19’s uncertainties, safety means avoiding exposure and supporting immune function with adequate exercise, rest, nutrition plus vitamins D and C.

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

June 2020

self-isolating

Mystique of COVID-19 Transmission

Dr. Derek Kerr

To date, we have been told that SARS-CoV-2 (severe acute respiratory syndrome – coronavirus-2), the new coronavirus that causes the disease called COVID-19, is spread by droplets expelled when infected persons cough or sneeze. These virus-laden droplets can be inhaled via the nose and mouth. Droplets also land on nearby surfaces. If we touch contaminated surfaces, then our mouths, noses, eyes and perhaps genitals, the virus can invade our bodies. That’s because the virus latches onto receptors on mucosal cells but cannot penetrate intact skin. Accordingly, Health Departments recommend keeping 6 feet away from others, washing hands frequently, and avoiding touching our faces.

Upon recognizing that infected people were transmitting the virus without or before feeling ill, masks were recommended. A survey of 3,000 people in Italy found that; “the great majority of people infected with COVID-19 – 50%-75% -- were asymptomatic but represented a formidable source of contagion”. By definition, asymptomatic persons aren’t coughing and sneezing so they probably spread the virus by other means.

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...airborne transmission of COVID-19 is likely, particularly in crowded, enclosed spaces with poor ventilation or re-cycled air. Notably, outdoor transmission is rare. Out of 1,245 COVID-19 cases documented in China, only 2 were contracted outdoors where air circulates freely.”

 Research shows that the likely culprit is speech.  We expel an aerosol plus droplets whenever we speak.  And, researchers found that “loud speech can emit thousands of oral fluid droplets per second”, comparable to the flurry spewed by coughing. This may explain why the virus spreads so efficiently within groups, as when 45 of 60 asymptomatic choir members contracted COVID-19 after a 3-hour practice and why prisons, nursing homes, workplaces and ships become incubators.

Features of Aerosols

There is data indicating that the virus can spread by aerosol – not just droplets. In general, droplets are larger particles while aerosols consist of micro-droplets measuring less than 5 microns. The SF fog is one example of an aerosol. Another is the invisible mist we produce with every breath. It becomes visible by exhaling against a cold window pane where the vapor condenses into water. Unlike larger droplets that quickly fall to the ground, aerosols can float in the air for several hours – like clouds.  Several studies show that aerosols, and some droplets, can travel well beyond 6 feet.

Micro-droplets in aerosols also pose a danger because their small size allows them to reach deep into the lungs. Larger droplets deposit in the upper airway where they are typically trapped by mucus that is pushed outward by the movement of hair-like structures called cilia. Aerosols are largely blocked by face masks, especially N95 respirators that filter out 95% of particles above 0.3 microns.

Aerosols Carry Viral Particles

Aerodynamic research on air samples in COVID-19 hospitals in Wuhan, China found viral RNA in unventilated patient toilets where flushing urine and feces can aerosolize the virus. Indeed, other researchers recovered viral RNA from the feces of most COVID-19 patients. Viral RNA was also found where workers removed their protective equipment, thereby scattering viral particles into the air. However, well-ventilated patient care areas and open public spaces were largely free of aerosolized viruses. Once contaminated areas were sanitized, the air within became virus-free. Similarly, Santarpia et al at the University of Nebraska Medical Center found viral RNA in air samples from rooms of COVID-19 patients. Also, Ong et al detected viral RNA in the air exhaust fan of Singapore hospital rooms, indicating airborne spread

 

Since these studies only isolated viral RNA, they did not prove that the air contained viable infectious virus. (The intact SARS-CoV-2 has a RNA core and a spiked protein coat). Further, viral concentrations in the air were low and we don’t yet know how many viruses are needed to cause infection. However, because SARS-CoV-2 is highly transmissible, and because aerosols have spread tuberculosis, influenza, measles and the 2003 SARS coronavirus, airborne transmission of COVID-19 is likely, particularly in crowded, enclosed spaces with poor ventilation or re-cycled air. Notably, outdoor transmission is rare. Out of 1,245 COVID-19 cases documented in China, only 2 were contracted outdoors where air circulates freely.

Aerosols Transmit Infection

A study by Van Doremalen et al showed that when SARS-CoV-2 was introduced into aerosols, the virus remained viable – capable of infecting cells - for at least 3 hours. A non-peer reviewed report by Sears et al found that viable, infectious SARS-CoV-2 persisted in experimental aerosols for 16 hours.

Importantly, aerosols eventually settle down on surfaces. After depositing aerosol-like micro-droplets on various surfaces, Van Doremalen et al recovered viable virus on plastic for 72 hours, on stainless steel for 48 hours and on cardboard for 24 hours. Happily, the virus had a limited life-span. In air, its half-life was about 1 hour, meaning that 50% of the viral particles became inactive after an hour.  So if a mist contains 1000 viruses initially, after 3 hours the viral load drops to 120. At room temperature, the half-life on plastic and stainless steel was about 6 hours, so contaminated water bottles or door knobs should self-decontaminate if left untouched for several days.

Better yet, wipe down contaminated surfaces daily - especially in bathrooms, with a disinfectant like a 1:10 bleach solution. Chin et al used micro-droplets of virus solutions to test viral viability against various disinfectants, temperatures and surfaces. Most household disinfectants neutralized SARS-CoV-19 – but acids like vinegar did not. Heat inactivated the virus, so dryers set at high, about 130 degrees F, would eliminate SARS-CoV-2 from clothing within 30 minutes.

Alarmingly, they found that the virus remained viable for 14 days at 39 degrees F, so refrigerated containers should be sanitized. Reassuringly, the virus lasted less than 3 hours on printing or tissue paper at room temperature. However, contaminated banknotes harbored viable virus for 2 days and cleared on day 4. Cloth and wood became virus free within 2 days while glass surfaces cleared within 4 days. Plastic and stainless steel held viable virus on day 4 then cleared by day 7. Hence, the need to wash hands often; at least 10 times daily has proven ideal.

The likelihood of airborne infection depends on the dose of virus transmitted and the duration of exposure. A 5 minute unmasked face-to-face chat could pass the virus. Accordingly, if unmasked, avoid crowded or unventilated, enclosed places. As for conversations, keep them short, masked and distanced.

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

May 2020

Senior being scammed
Door-to-Door Imposters, Robocalls: Beware of Coronavirus Scams
Dr. Derek Kerr

Times of crisis bring out the best in us – and the sleaze in scammers. SFPD’s Taraval Station March newsletter alerted the public to a creepy COVID-19 scam. Impostors pretending to be Department of Public Health (DPH) or Centers for Disease Control (CDC) employees are going door-to-door, asking to enter homes to conduct inspections. Neither the DPH nor the CDC sends personnel door-to-door to inspect private residences.

Health Inspectors Although City Disaster Services workers do place informational door hangers in various neighborhoods, they do not ask to enter homes or establishments. DPH Environmental Health inspectors are checking sanitation in SRO hotels, but they notify building managers in advance and present DPH IDs. They also conduct specific food safety inspections in restaurants and related facilities. Again, they show DPH IDs.

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The IRS reports a wave of calls and emails from fraudsters seeking personal information or fees to speed up delivery of the $1,200 “Stimulus Check.

The SFPD advises that if canvassers claiming to represent the DPH or CDC call at your home, do not let them in. Call 911 and describe the suspects.

Robocalls Other cunning COVID-19 scams are reported by the Federal Trade Commission (FTC). These come as robocalls (recorded telephone messages), emails, text messages or fraudulent online ads offering cures, vaccines, test kits or protective gear. You can listen to examples of robocall scams collected by the FTC. Robocalls trying to sell you something are illegal unless a company has your written permission to call you that way. However, public service or political information robocalls are legal. If you signed up with the National Do Not Call Registry, any robocall sales-pitch you receive is a scam. Reputable companies abide by the Registry.

The FTC advises to hang up on robocalls. Do not press any numbers or answer any questions, as these actions will elicit more robocalls. Whether commercial solicitations come by phone, email or text message, do not send cash, gift cards or wire money. Beware also of fake COVID-19 charitable solicitations. Check to see if the charity exists and whether it makes calls for donations. Report solicitation scams to the FTC at 1-877-382-4357.

Snake Oil The World Health Organization (WHO) has alerted the global community about “falsified medical products that claim to prevent, detect, treat or cure COVID-19.” Notably, deceptive websites generally lack a physical address or landline phone number. Consumers are advised to seek guidance from a medical professional before buying. Similarly, scammers are flooding the US market with fake or untested sanitizers and disinfectants, claiming they neutralize the coronavirus. The Environmental Protection Agency (EPA) lists approved sanitizers and threatens legal action against retailers who sell unregistered COVID-19 related products.

Social Security Scams The Social Security Administration (SSA) is warning the public about fraudulent letters threatening suspension of Social Security benefits due to COVID-19 –related office closures. These letters instruct recipients to call a number operated by scammers. They demand personal information or payment via gift cards, cash or wire transfer to preserve your benefits during the COVID-19 shut-down. The SSA emphasizes that it will not stop Social Security payments or benefits during the pandemic - or demand fees. Report these crooks at https://oig.ssa.gov .

The IRS reports a wave of calls and emails from fraudsters seeking personal information or fees to speed up delivery of the $1,200 “Stimulus Check.” The official term is “Economic Impact Payment” and the IRS sends it directly by mail or to your bank account. The IRS does not call or email taxpayers to verify personal or banking information. Such contacts are identity theft cons. Do not open “IRS Emails” or click on any links or attachments within them. A truly nefarious swindle involves sending taxpayers a bogus IRS check with directions to call a number to verify their personal data in order to cash it. Report such scams at; https://www.irs.gov/privacy-disclosure/report-phishing.

Information and caution are protective against cheats. Get definitive guidance and subscribe for updates from the Centers for Disease Control and Prevention at https://www.cdc.gov/coronavirus/2019-ncov/whats-new-all.html Our Department of Public Health provides information and updates on COVID-19 at; https://www.sfdph.org/dph/alerts/coronavirus.asp. The City’s overall responses can be tracked at; https://sf.gov/topics/coronavirus-covid-19.

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

April-May 2020

Fentanyl & Meth Push Overdose Deaths to Record Highs

opiod deaths in San Francisco

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.

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Fentanyl is supplanting Mexican black-tar heroin ... as an additive mixed into various street drugs to give them more “kick.” Despite its potential...it’s cheaper and delivers a better rush ...

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

Joanne Hoeper

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.

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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 $2,267,75, back in September 2016, records show."

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

Broken Auto Glass on street

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.

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Because Bay Area smash-and-grab crews are known to local cops, they hit the road to ply their trade where they enjoy anonymity.”

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.

chart of break-insAccording 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

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.

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This quagmire burdens taxpayers . . . 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.”

Barbery Coast
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.

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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 dwarfs 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.

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

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.

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. . . Supervisors unanimously passed the . . . transparency and accountability provisions . . . In effect, the law authorized SFPD brass and City officials to oversee its FBI-driven Joint Terrorism Task Force investigations."

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
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

Norman Yee with Madonna Valencia
CNO Madonna Valencia with Supervisor Norman Yee

Hedging the Shake-Up at Laguna Honda Hospital

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.

quotes

…inspectors found that 5 patients had been drugged with non-prescribed opioids and sedatives. All suffered life-threatening overdoses … caused by medications – not illegal drugs smuggled into the hospital. LHH physicians knew something was seriously wrong.

Dr. Michael McShane
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.”

quotes

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.

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

Demonstration for Brandon Lee

Attempted Assassination of Westside Journalist Brandon Lee

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.

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...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.

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

October 2019

Raided Westside Journalist Bryan Carmody Speaks Out

Bryan Carmody
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.

J. Alex Tarquino
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
Thomas Burke
Attorney Tom Burke explained that the raids were prohibited by the California Shield Law. As enacted in 1974, it protects journalists, including freelancers, from being forced to reveal their sources and unpublished information. Importantly, it also protects sources. After the home and office raids, Burke learned that since March 1st, the SFPD had acquired 3 other search warrants for Carmody’s cell phones, thereby gaining access to phone numbers, text messages and location data. All 5 warrants were subsequently quashed, by the same judges who issued them, because the SFPD had failed to tell them that Carmody held a Press Pass issued by the SFPD.

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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.”

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

Margaret Rykowski
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.

quotes

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.”

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.

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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. ”

Regina Gomez
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

Photo of crowd
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?”

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...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 ...”

Supervisor Gordon Mar
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

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.

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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 ... Keane announced “I resign” and walked out.”

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

Photo of protest

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 data 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.

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…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.”

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

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.

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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.”

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

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.

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…16 female inmates alleging that some were strip searched in view of male deputies … 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.”

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.

Arrest of Kathleen McCowin
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
Kathleen McCowen under custedy

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

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”.

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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.”

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

Chart of Rape Statistics

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

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.

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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...”

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

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

scale model
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

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.

Bank of North Dakota, circa 1990

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.

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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.”

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.

Bank of North Dakota, today

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.

Photo of the counting room
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

Senior gives a senior lady a ride in a wheelbarrow

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.

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Concurrently, LHH is coping with a rise in unruly patients with “behaviors affecting others” like wandering, screaming, aggression, and rejecting care.”

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.

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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.”

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

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.

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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.”

"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

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.

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Who decides if an amendment of the Sunshine Ordinance is “not inconsistent” with its purpose? The City Attorney, according to Peskin ... Trouble is, the City Attorney has dual loyalties, representing the public and City government. When the two clash, the City Attorney defends City officials.”

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

bottle of pills/bullets

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

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...the overwhelming majority who opted for aid-in-dying were over 65, white, college-educated, insured cancer patients living at home with Hospice services.”

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

broken window

Westside Car Break-Ins Subsiding - Perhaps

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;chart showing crime rates

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

neighbors demonstrate outside red curb
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

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.

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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.”

Diana Anderson of Avenues Pet Hospital
”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.

a client carries a large dog to 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.

Angela Alioto decries MTA's small business policies
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."

opponents to MTA's policy line up for a picture
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.

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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.” (Supervisor Katy Tang responded)”

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.businesses along Taraval Street

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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.”

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.

quotes

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.”

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. L Taraval streetcar

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

June 2018

protesting the protesters
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

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.

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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... 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”

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?

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.

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…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 ...”

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

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.

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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 ... 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

Happy High Shop

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

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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.”

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

Click here for 2015-17 columns by Dr. Derek Kerr.

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