(Correction: Supervisor Wiener’s ballot measure allowing amendment or repeal of ballot measures passed by voters doest NOT impact the November election, but takes effect after January 1, 2012. The Supervisor tabled his version that would have affected the November measures)
On Friday, July 22, the latest skirmish over City Hall actions will take place. It won’t be in the Beaux Arts confection that houses Supervisors, the Mayor, the City Attorney and other members of the “City Family,” but instead will take place in the Courthouse facing Civic Center and which offers a different perspective on City Hall.
City Attorney Dennis Herrera, a candidate for mayor, will defend the decision by Mayor Ed Lee to appoint Richard Johns to the city’s Historic Preservation Commission. At issue is whether Johns is qualified under the Charter terms that call for the seat to be filled by a professional historian with academic credentials. Johns, an attorney, has never held a professional historian position.
Johns is credentialed in other respects. He is a close ally of former mayor Willie Brown, and is married to Eleanor Johns, Newsom’s appointee to the Airport Commission and who also is the head of Brown’s nonprofit Foundation. She also was Brown’s chief of staff when he was mayor.
When the Board of Supervisors took up John’s appointment, the city attorney was asked to respond to the issue of the charter requirement and how it should be interpreted. “It can be whatever you decide it should be,” is the answer attorney Arthur Levy recalls. Levy now represents the Prop J Committee suing for Johns’ removal.
The move from City Hall to the courthouse is not yet a stampede, but is carries increased traffic by those frustrated by a City Hall that listens closely to consultants, lobbyists and contractors. The Historic Preservation Commission, as one example, plays the critical role in establishing eligibility for corporations seeking tax benefits when they convert buildings. The city’s lobbyists’ filings show numerous contacts with staff and commissioners, including Johns.
Proliferation of Lawsuits
While the Johns’ appointment showed a split vote at City Hall, the decisions being taken to court include those that came with unanimous votes – but which faced forceful community opposition.
This includes the unanimous vote for Treasure Island’s EIR now heads to court.
It also now includes the split vote over Parkmerced.
Also in court: the unanimous vote over the Stow Lake boathouse contract, which already is in the appeal stage after losing the first court round.
The long-simmering dispute over 8 Washington Street took a new turn with a lawsuit filed July 13 over a new proposal from Asian Neighborhood Design for condos and commercial uses where the Golden Gate Tennis and Swim club now exist.
The plans for expanded permit authority for the Masonic Auditorium, passed by a 10-1 vote, got a major setback when neighborhood opponents won two lawsuits in April. The representatives for the Masonic Auditorium are pressing on in further court filings.
Even the city’s Whistleblower Program faces a court test after the City Attorney, the Ethics Commission and the Controller refused to release information on its procedures for handling complaints. They now face being deposed for the information they refuse to make public. They already face a sharply critical Civil Grand Jury report just issued that terms their function as “Whistling in the Dark.”
Citizen or even special interest, lawsuits against the city are nothing new.
In San Francisco, the outcome of such lawsuits depends in part on which judge presides over the case. In the Stow Lake case, Superior Judge Loretta Giorgi determined that the involvement of lobbyists, including the city attorney’s campaign consultant, had not tainted the process. She reasoned that the Commission was voting on a contract selected by an independent panel.
The “independent” panel included one Recreation and Park commissioner who was revealed in emails to have counseled the lobbyist on how best to win over her colleagues on the Commission. The independent panel also included other city employees.
Perhaps the most surprising part of the decision was the conclusion that the selection panel decision made the Commission’s role moot, as though the commission did not have the authority to reject the panel’s recommendation. Critics of the judge’s decision pointed to the fact that her ruling backed Dennis Herrera’s argument and that Herrera had been her supervisor before she was named to the court in 2006.
Judge Giorgi is presiding over the Johns case July 22, when the City Attorney will seek to have the case dismissed. Whatever the outcome there, attorney Levy says “We will have our day in court.” He is pursuing a second track that goes through the office of the California Attorney General.
City Hall Reducing Voter Influence
What makes this a new City Hall war is that City Hall is fighting back – moving forward to strip the voters of the ability to set permanent policies and even taking from the voters the right to change policies enacted by voters and transferring that authority to city departments already notorious for ignoring the public.
At its July 19 Board meeting, three measures won first approvals that take away the authority of voters and instead give it to the Board of Supervisors or city agencies.
In each case, the Board’s actions stand to benefit their own campaign consultants, their donors or their prospective interests.
By a unanimous vote, the Board decided to place on the November ballot a measure to eliminate voter approval of changes in the city law controlling political consultants and transfer that authority to the city’s Ethics Commission. The original measure, authored by then-supervisor Tom Ammiano, only became law after four supervisors placed it on the ballot following two vetoes by then-mayor Willie Brown.
As things stand, only the voters can change what consultants have to disclose about their clients and their pay. The new Board measure drops major provisions of the voter-approved law, such as requiring reporting of reimbursements of expenses and also reporting acting as an intermediary on campaign contributions, and then gives wholesale authority to the Ethics Commission and the Board to make any other changes they decide without voter approval.
Two weeks ago, the city’s Civil Grand Jury reported on the city’s Ethics Commission, calling it a “Sleeping Watchdog” and recommended changes in appointing commissioners to remove the influence of elected officials over its policies and enforcement. Since Ammiano’s measure won voter approval a decade ago, the Ethics Commission has never held a hearing on political consultants or alleged violations of the law.
Repealing Voter Mandates
In a second vote, this time split 7-4, the Board decided to place on the ballot a measure that allows the Board of Supervisors to repeal measures passed by the voters. This would happen in stages, initially requiring a super majority and then, after several years, a simple majority.
This takes the ability of the Board to ignore the voter’s mandate several steps further than has been seen in the past. Over the last decade, the Board has sidestepped voter-approved measures by declaring the voters were approving “policy” statements and not actual legal requirements.
Under this interpretation, the Board did not implement the requirement that Treasure Island contracts be bid competitively, did not implement community policing and did not implement a “question time” for the mayor to respond to public questions at a meeting of the Board of Supervisors.
Now, even if the voters were to require action by passing a law, the Board of Supervisors would be able to repeal the voters’ action.
Supervisors suggested that several measures offered by more progressive supervisors on the November ballot would be good candidates for repeal if they were to pass — and Supervisor Wiener introduced a competing version of his proposal that would allow November measures to later be amended or repealed. However, at the July 19 meeting, this was tabled at Wiener’s request.
There was no mention of such pro-development measures as the vote for a shopping mall tied to a 49ner stadium passed by Willie Brown, which then never was built, or the requirement that supervisors regularly take public transit, which they don’t.
Supervisor Scott Wiener, the author of this measure, claimed to have no specific objective other than government efficiency, while at the same time twice referring to the ability to repeal the voters’ will as “a modest first step.” He did not explain what would be the second step.
End Run on Bond Measure
The third Board effort carries a hefty price tag of $170 million, and authorizes a work-around to fund a retrofit of the War Memorial Veterans Building that was defeated by voters in 2002 when the price tag was $123 million.
The 2002 bond measure was opposed because it reportedly diminished the veteran’s organizations use of the building in favor of uses by the city’s leading lights, including catered events. The new work-around avoids asking for voter approval by instead authorizing the issuance of Certificates of Participation that will cost the city a higher interest rate than a bond measure would.
The proposal, authored by Mayor Lee and Board President David Chiu, passed unanimously. It fulfills a longtime hope of the War Memorial Board, many of whose members are campaign contributors to the “city family.”
The SF Examiner’s Melissa Griffin wrote in her June 21 column, “To recap: Chiu and Lee are proposing that we skirt the democratic process of issuing huge bonds in the name of the War Memorial Veterans Building. Insulting to voters and expensive (not to mention ironic), this plan is not worthy of the building it proposes to restore.”
The prospect is that more decisions are going to make their way out of City Hall and across the street to the courthouse. It is virtually a sure bet that the waiver of the EIR for the AT&T utility boxes will be taken to court. The contract with Recology over waste removal also appears to be certain to show up on the court docket, even before the Board gives final approval to the contract.
For its part, the Board can be expected to whittle further at laws passed by voters. It will take up amendments to the city’s public financing law for candidates within the next 30 days, eliminating the provision that provides additional funds to candidates who face an onslaught of outside independent funding or self-funded candidates.
Ostensibly this will be in response to the U. S. Supreme Court decision in an Arizona case, but in reality the Board will elect to take the most drastic option. It will echo the testimony offered at a recent Ethics Commission meeting where the city’s major political consultants argued for their First Amendment right to spend as much as they want.
They argued that allowing candidates the ability to raise funds or be awarded public funds interfered with their First Amendment right to spend freely without the hindrance of competing with candidates able to fund on a fair footing.
The measure was introduced by Supervisor Mark Farrell, who benefitted from over $200,000 in independent funds in 2010 aimed at electing him and defeating a rival.
Such a move fits neatly into the New City Hall War in which citizens are collateral damage.