It is, we are told, spelled out in the City Charter. “Official misconduct means…conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers…”
What that means – and doesn’t mean – comes through in sharp relief if you substitute the name Gavin Newsom for Ross Mirkarimi. Because Gavin Newsom would have been charged with Official Misconduct in 2007 after notoriously scandalous behavior that begged issues of unlawful behavior. In Newsom’s case, he was the anointed front man for a city establishment from the day he was appointed to a city commission, then to the Board, and then backed with the most expensive campaign in city history to be elected mayor.
Not only was nothing going to drive him from office, but every asset from Dianne Feinstein to the Chronicle to the Ethics Commission’s Executive Director to the head of the Commission on the Status of Women did everything in their power to make the issue go away.
The contrast with Mirkarimi, a political outsider who began as a member of the Green Party and who challenged longstanding city practices ranging from the reluctance to implement community policing to directing city funds to programs serving vulnerable people. In an instant, rumor morphed into a drumbeat, then an echo chamber, that was so overwhelming that a jury expert determined that it would be impossible for him to get a fair trial in the city where he had just won city-wide office.
The facts are not in dispute — although few ever saw them put together into a narrative that told the story. How the city establishment responded to those facts is the story.
If any city official ever collided right into the abyss described in this language it would be Gavin Newsom, who catapulted San Francisco into national disgrace after being forced to admit that he had a sexual affair with a subordinate.
Within hours, BeyondChron editor Randy Shaw had posted his prediction: “That’s what will likely lead City Attorney Dennis Herrera to file charges against Newsom by the end of the week.”
In the following days, questions emerged over just how many laws had been broken. The City Attorney was investigating whether Newsom’s scheme to pay Alex Tourk, the cuckolded husband and erstwhile deputy chief of staff, out of Newsom’s campaign funds. A second investigation was underway on whether Ruby Rippey-Tourk was given favorable treatment under the city’s catastrophic leave program that awarded her over $10,000 for her absences, why she was allowed the payment after she resigned, or whether she was entitled to sign her own time cards so she would be paid.
Looming over it all was the question of whether a mayor, or any city supervisor, would be violating ethics laws and public trust by having an illicit affair with a subordinate – that would most likely result in a private sector boss or even a CEO being canned.
More details revealed that Newsom’s office was dysfunctional, at times resulting in significant mismanagement affecting the city. He failed to establish an attendance policy for his office’s senior political appointees, and did not establish rules on approving leave.
Commission appointments, the duty of Ruby Rippey-Tourk, Newsom’s lover, were ignored even after months of pleading for action. One result: a complete melt-down of the city’s Taxi Commission with its executive director fired at 2 a.m. after an all-night commission meeting. The record showed that Rippey-Tourk had already been on unpaid leave for five weeks at the time.
Newsom Held The Aces
But Newsom held the aces that would trump any effort to legally hold him accountable.
He could count on the city’s powerful elites, from Senator Dianne Feinstein to the San Francisco Chronicle to even the city’s hobbled Ethics Commission, to immunize him from any legal consequences.
Indeed, the city charter language on Official Misconduct applies to all city officials – except the mayor. The only way to hold Newsom accountable would be if the City Attorney or District Attorney brought charges based on violations of the law, not violations of the charter.
By the morning after Newsom’s February 1 late afternoon press revelation, the Myth Machine was in full working order.
First, the Chronicle ran a February 2 story explaining that Newsom had not violated any city policies.
“Mayor Gavin Newsom’s affair with his former aide Ruby Rippey-Tourk apparently violated none of the city’s ethics codes, which do not cover general moral transgressions or errors in judgment,” reported the Chronicle.
Despite the scant few hours since Newsom admitted to his affair, Ethics Commission Executive Director John St. Croix was ready to shoot down any notion that the city’s ethics laws were broken.
“The ethics code could deal with situations where a supervisor gives something like a gift to a subordinate with the understanding that they will get something in return, (but) it doesn’t really cover sexual relationships,” said John St. Croix, executive director of the city’s Ethics Commission,” in the same story.
Next the Commission on the Status of Women packed away any notion that a supervisor having sexual relations with a subordinate was a matter of concern.
“The San Francisco Commission on the Status of Women, a seven-member board appointed by the mayor that, among other things, monitors complaints of unlawful treatment of women in city government, was keeping its distance,” reported the Chronicle in its February 2 story.
“Emily Murase, director of the mayor-appointed commission, declined to comment about the affair. “We’re treating it as a personal issue,” Murase said.”
That same day-after series of stories started a new narrative, this time from top political reporter Carla Marinucci, who just hours after Newsom’s announcement was redefining the issue as a “violation of the man code” for having sexual relations with his friend’s wife.
Senator Dianne Feinstein was ready, in 24 hours, to blame the pressures of being mayor as contributing to Newsom’s misbehavior, but voiced her belief that “I think he’ll go on from there.” She noted, “This is a young mayor. I know the pressures of being mayor, and I know how hard it can be.”
In a matter of days, the Chronicle was ready to offer its conclusions, including its view on whether the mayor should resign.
“Newsom made it clear that he has no intention of resigning, leaving his fate where it belongs — with the voters. San Franciscans neither want nor need a mayor with an image that is too good to be true,” it editorialized on February 7.
Newsom Escapes His Past
A significant part of the Newsom Myth Making was the claim that Newsom handled the revelation in a textbook perfect example of crisis management. He announced it, took responsibility, and apologized.
But Gavin Newsom was no Betty Ford, stepping up to take responsibility for anything other than sleeping with is friend’s wife who was his subordinate.
It took several more days for Newsom to admit he had a drinking problem, and then he veered back and forth on whether he did have a drinking problem. Weeks later he was still saying he didn’t know if he had a drinking problem.
Newsom wasn’t just in denial. He had been using his office to make certain that he would not be confronted with questions about his excessive drinking even in public. At one point a month earlier, Newsom directed his police bodyguard to block a reporter trying to ask about Newsom’s drinking and its impact on his job as mayor.
After the story broke, Newsom refused to answer questions about his use of city funds to ease Ruby Rippey-Tourk’s transition or his effort to use his campaign funds to pay Alex Tourk despite the apparent violation of campaign laws.
Newsom’s refusal to respond to questions ultimately resulted in a four-minute video that stitched together footage of Newsom repeatedly refusing to deal with reporters.
“The Walkaway Mayor” was posted on youtube by a group calling itself GavinWatch (ciick here: http://www.youtube.com/watch?v=OZ1eE2BbXas&feature=fvwrel)
At its core, Newsom’s problem appears to be less drinking than an immaturity that positions himself at the center of his world, petulantly acting out when others raise uncomfortable questions about his behavior. What the video documents most of all are a man given to tantrums, rudeness and insults when others stand in the way of how he views himself and wants others to view him.
For more than a year, Newsom benefitted from a City Hall press corps that was not aggressive in investigating accounts that Newsom was having an affair with a staffer or was drinking heavily.
Matier and Ross, the “Insiders,” told readers only after the news broke what City Hall had known all along.
“For more than a year, the affair between San Francisco Mayor Gavin Newsom and the wife of his good friend and campaign manager, Alex Tourk, was a bomb that those around the mayor knew would one day go off,” they wrote on February 2.
“Rumors started making the rounds of City Hall in late 2005, soon after Newsom and Rippey-Tourk were reportedly spotted together in the mayoral town car at a wedding in Napa.
“The cavorting with a 19-year-old model and nighttime public sightings in which the mayor appeared to have been drinking have damaged what was once Newsom’s strongest political asset — a squeaky-clean image.,” the duo wrote.
When he did decide to get counseling, he went to Mimi Silbert, a longtime friend and ally, but still refused to publicly discuss his drinking problem or to encourage others to take similar steps to get help with alcoholism. Newsom never discussed it.
With Newsom establishing a wall of silence, reporters option was to haunt the City Attorney to learn whether any action might come from that quarter.
KGO-‘s Dan Noyes of the stations’ I-Team went on the air on February 6 with one angle.
“But there are new, serious questions whether Newsom is breaking campaign finance law. His close friend and campaign manager, Alex Tourk, resigned last week, after Newsom admitted having an affair with Tourk’s wife, Ruby. She was the mayor’s appointments secretary.
“As part of a deal worked out with lawyers, Alex Tourk will continue to be paid his $15,000 dollar a month salary until he finds a new job.
“The I-Team has confirmed the city attorney’s office is researching whether that’s against the law,” said Noyes.
The story died right there because the City Attorney doesn’t comment on investigations and doesn’t comment on advice it provides to office holders.
This past week, CitiReport asked the City Attorney’s office for the outcome of the reported investigation aired by Noyes.
“Did Mr. Herrera either state, officially or informally, that Mayor Newsom could not use campaign funds to pay Alex Tourk after he resigned?” was the question CitiReport asked.
The answer: “Without indicating an answer either way, I was able to identify a record that while potentially responsive to this request is covered by the attorney-client privilege (Bus. & Prof. Code Sec. 6068(e)(1)). As such, disclosure by the City Attorney’s Office is prohibited under the Public Records Act (Cal. Gov. Code Sec. 6254(k)) and S.F. Sunshine Ordinance.”
Newsom, for his part, backed out of using campaign funds and said he made the payments from his own accounts.
The City Attorney Finds No Wrongdoing
The question of payments to Rippey-Tourk was reviewed in a 31-page analysis by the City Attorney released on April 11, 2007. It was a comprehensive analysis of each of the major questions – the use of catastrophic leave, the payments made after leaving office, the issue of attendance and time sheets – and each time the City Attorney’s conclusions skated by questions of wrongdoing and tossed the issues to other city departments, the Board of Supervisors and the Mayor himself.
After noting that both Rippey-Tourk and Alex Tourk declined to be interviewed, the City Attorney’s analysis relied on interviews with others and available documents. The Mayor does not show up as being interviewed.
On the eligibility of Rippey-Tourk for catastrophic leave intended for those facing end-of-life illness such as HIV or Cancer, but extended to Rippey-Tourk reportedly to enable her to attend a substance abuse program:
“We did not find any case in which DPH certified eligibility for the CIP based solely
on substance abuse…We did find a few denials by DPH of applications where the catastrophic illness was substance abuse, but apparently unaccompanied by any life-threatening physical condition or behavior. We did not discover any DPH approval of a CIP application based solely on alcohol or substance abuse, including attending a treatment program.”
“Whether there should be amendments to the Ordinance to set forth additional direction or criteria for making this determination is a policy matter for the Board of Supervisors and the Mayor.”
On approval for Rippey-Tourk to receive payment after resigning and before starting a new job:
“But we could find no other instance where, as here, an employee received
approval by the Controller for payment under the CIP after she indicated her intent to resign from City employment and received the payment just as she was starting a new job.”
“Again, if as a policy matter the Board of Supervisors and the Mayor would prefer a rule prohibiting payments to employees who are separating from City employment, including circumstances where they have accepted a new job, they could amend the CIP ordinance to incorporate such a limitation.”
On the question of confirming attendance at the office:
“During the time she served in the Mayor’s Office, there was no written City-wide or Mayor’s Office policy regarding the submission or approval of time sheets. Our review indicates that during the majority of time that Ms. Rippey-Tourk was employed by the Mayor’s Office, senior staff members were not required by any policy or practice of the City or the Mayor’s Office to have a supervisor approve their time sheets.
On the question of nepotism of Tourk signing time sheets in some cases for his wife:
“Even though Mayor’s Office approval of senior staff time sheets was merely an internal departmental control and was not legally required for salary payments by the Controller, authorization of a spouse’s times sheets is not appropriate in light of this public trust. But the City’s anti-nepotism law prohibiting participation by an employee “in employment actions” involving that employee’s relatives does not appear to extend to this situation; it covers only hiring, promotion and discipline.”
“Because Mr. Tourk approved his wife’s time sheets, this practice was inappropriate and at least created the appearance of impropriety though it does not appear to have violated City laws.”
“It is a policy matter for the Board of Supervisors and the Mayor whether to amend the City’s anti-nepotism law to cover this type of situation going forward, and a policy matter for the Board of Supervisors, the Mayor, the Controller, the Department of Human Resources and the Ethics Commission whether to institute a formal City policy requiring approval of employee time sheets in a particular manner, or not at all.”
On the question of Rippey-Tourk signing her own time sheets:
“Similarly, the fact that Ms. Rippey-Tourk occasionally signed as her own “authorized signature” during this period was not legally improper, as no such signature was required.”
Today, almost on the exact fifth anniversary of his report, City Attorney Dennis Herrera will go before the city’s Ethics Commission to argue that the charter provisions on Official Misconduct involving “conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers…” should serve as the grounds to remove Sheriff Ross Mirkarimi from office.
Meanwhile, Gavin Newsom’s failure to uphold a standard of decency, good faith and right action is seen as one of his finest hours.