Judicious SFPD Covertly Procuring Military Gear

By Dr. Derek Kerr and Dr. Maria Rivero

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

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

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

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

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

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

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

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

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

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

November 2017

Outraged YIMBYs Sideswipe Ethics Commission

By Dr. Derek Kerr and Dr. Maria Rivero

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

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

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

Commission President Peter Keane

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

Commissioner Quentin Kopp

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

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

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

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

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

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

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

October 2017

Safe Injection Sites: Neither Drug Dens nor Roads to Recovery

by Dr. Derek Kerr and Dr. Maria Rivero

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

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

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

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

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

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

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

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

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

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

September 2017

FBI Probe Plunged DPH into Turmoil, Intrigue

by Dr. Derek Kerr & Dr. Maria Rivero

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

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

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

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

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

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

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

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

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

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

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

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

Laguna Honda to Offer Medical Aid-In-Dying

by Dr. Derek Kerr & Dr. Maria Rivero

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

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

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

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

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

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

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

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

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

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

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

June 2017

A Public Bank for San Francisco

by Dr. Derek Kerr and Dr. Maria Rivero

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

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

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

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

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

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

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

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

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

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

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

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

May 2017

Sewergate: Costly Conspiracies of Expediency

by Dr. Derek Kerr & Dr. Maria Rivero

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

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

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

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

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

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

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

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

Attorney John Keker

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

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

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

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

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

April 2017

FBI Probe of DPH Bribery Scheme

by Drs. Derek Kerr and Maria Rivero

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

Ron Weigelt, DPH Human Resources Director

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

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

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

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

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

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

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

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

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

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

March 2017

Will Honesty and Sanity Save Laguna Honda?

By Dr. Maria Rivero and Dr. Derek Kerr

Eugene Jeandeville

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

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

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

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

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

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

February 2017

City Hall Watchdogs

Show-Down on Cronyism and Conflicts of Interest

By Dr. Maria Rivero and Dr. Derek Kerr

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

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

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

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

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

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

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

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

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

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

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

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

December 2016 / January 2017

Battling the Auto Break-In Crime Wave

By Dr. Maria Rivero and Dr. Derek Kerr

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

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

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

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

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

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

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

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

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

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

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

November 2016

Campaign Spending

Supervisor Mark Farrell v. CCSF

By Dr. Maria Rivero and Dr. Derek Kerr

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

Supervisor Mark Farrell

The FPPC Investigation:

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

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

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

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

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

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

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

Farrell's Money as Speech Defense

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

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

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

1. Case # CGC16551745

2. Westside Observer, July '16 -

October 2016

Sewergate:

Gushing Costs and Profits in City's
War on Whistleblowers

By Dr. Maria Rivero and Dr. Derek Kerr

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

Herrera's Chief Trial Attorney Joanne Hoeper

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

Sunshine Records Released

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

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

Keker & Van Nest

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

Campaign Donations

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

Judge Richard Ulmer Denies Team Herrera's Motion

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

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

Appeal Denied — Herrera Moves to a Higher Court

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

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

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

September 2016

Going Negative:

Supervisor Mark Farrell v. Ethics Commission

Dr. Maria Rivero & Dr. Derek Kerr

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

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

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

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

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

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

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

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

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

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

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

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

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

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

July 2016

Loss of Trust: The Human Services Agency

By Dr. Maria Rivero & Dr. Derek Kerr

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

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

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

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

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

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

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

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

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

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

June 2016

Discretionary Hiring Fuels Mistrust:

The Human Services Agency

By Dr. Maria Rivero and Dr. Derek Kerr

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

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

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

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

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

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

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

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

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

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

May 2016

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

By Dr. Maria Rivero and Dr. Derek Kerr

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

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

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

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

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

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

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

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

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

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

April 2016

Watching SFPD's Body Worn Camera Videos

By Dr. Maria Rivero and Dr. Derek Kerr

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

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

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

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

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

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

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

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

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

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

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

March 2016

Diversity Brings Controversy

Laguna Honda’s Nursing Challenge

Photo: David Edstrom

By Dr. Maria Rivero and Dr. Derek Kerr

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

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

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

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

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

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

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

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

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

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

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

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

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

February 2016

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

Doing Less With More

Laguna Honda’s Acute Care Slump

By Dr. Maria Rivero and Dr. Derek Kerr

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

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

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

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

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

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

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

November 2015

London Breed’s Anti-Sunshine Litmus Test

Dr. Maria Rivero & Dr. Derek Kerr

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

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

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

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

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

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

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

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

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

October 2015

Exodus From Laguna Honda Hospital

By Dr. Maria Rivero and Dr. Derek Kerr

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

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

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

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

September 2015

Ethics Commission Still Napping

By Dr. Maria Rivero and Dr. Derek Kerr

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

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

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

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

September 2015

Secrets and Neglect

Laguna Honda’s Patient Gift Fund

By Dr. Maria Rivero and Dr. Derek Kerr

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

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

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

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

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

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

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

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

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

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

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

July/August 2015

When Sunshine Casts a Shadow

– David Lee’s Ballot Proposal

David E. Lee

By Dr. Maria Rivero and Dr. Derek Kerr

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

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

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

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

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

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

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

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

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

June 2015

Laguna Honda’s Falling Star

By Dr. Maria Rivero and Dr. Derek Kerr

Mivic Hirose, CEO Laguna Honda Hospital

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

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

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

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

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

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

Nursing Staffing

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

Quality Measures

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

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

Health Inspections

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

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

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

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

May 2015

Requiem for an Old Friend

By Dr. Maria Rivero and Dr. Derek Kerr

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

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

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

Growing Up in the City

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

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

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

The Investigation

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

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

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

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

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

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

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

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

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

April 2015

City Attorney’s Whistleblower Battle Lands in Court

By Dr. Maria Rivero and Dr. Derek Kerr

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

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

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

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

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

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

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

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

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

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

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

February 2015