Ah, yes, it was a grand day on September 2 for the opening of the eastern span of the San Francisco-Oakland Bay Bridge. To be sure, the cost of the two hour speechmaking by elected and appointed public officials on a rather warm afternoon was less than the once-planned $6,000,000 celebration announced last spring before more imperfections were discovered in bridge bolts and related material, but it massaged the egos of state and local officials, culminating in remarks by our "hip" Lt. Governor striving for Jesuitical brilliance even without a tie. Initially estimated by the state Department of Transportation as an $800,000,000 project, the current reputed (again by Caltrans) cost is approximately $6,400,000,000. While the San Francisco-Oakland Bay Bridge remains part of the federal and state highway systems, well over one half of the cost will be paid by tollpayers. On October 17, 1989, the day of the Loma Prieta Earthquake, the toll on that bridge was 75 cents. Today the toll is $6.00 (Fast Pass cuts it to $5.00).

Last week I discovered a historical memento; it was a receipt dated April 4, 1939 for travel on the San Francisco-Oakland Bay Bridge by a truck. The toll was 60 cents. (For automobiles it was then 25 cents). The receipt on one side states: "A time and money-saving service owned by the people. When you pay toll you pay yourself." On the reverse side, the receipt states: "Many thanks for your business." (I kid you not!) Below that remarkable legend the receipt states: "Patronize your bridge so that tolls may be reduced and the bridge made free at an early date."(Emphasis added) People who were cognitive in 1939 may remember that Bay-Area tollpayers were promised travel on the bridge would be free once sufficient toll revenue was collected to pay bond holders who underwrote construction costs. (Do I hear any reader exclaiming that's the time-honored way of government conveying promises which are never redeemed?)

Amidst the publicity and self-congratulatory back-patting over the opening of the new eastern span, consternation and public concern surfaced over a commonplace legislative tactic to secure the renaming of the western span of the Bay Bridge after one-time Assembly Speaker and Mayor Willie Brown. In late June, an obscure Assemblyman from Compton, CA (Los Angeles County) introduced an Assembly resolution to effectuate a new name for the Bay Bridge, or at least one-half of it. (Some wag thereafter suggested renaming the new eastern span after Governor Edmund G. Brown, Jr., who contributed with Willie Brown to the multi-year delay and consequent billions of dollar increase in tollpayer and taxpayer expense.) Although the Assembly Transportation Committee (and the State Senate Transportation Committee) adopted five rules two years ago to control the naming of highways, bridges and similar public transportation structures after any person, those rules were ignored by most legislators, intimidated by the National Association for the Advancement of Colored People (NAACP) of California whose president is a former member of Mr. Brown's staff. Among the five rules were: (1) the author or a co-author of the resolution must reside in the area in which the facility is located, not 500 miles away; (2) the proposed designation must reflect a community consensus and be without local opposition. Neither the author nor any co-author of the resolution represents the district in which the Bay Bridge is located. (As an artifice to cure the improper authorship problem, Assemblyman Phil Ting of San Francisco later joined as a co-author. Ting, however, does not represent the district in which the bridge is located; Assemblymen Tom Ammiano represents such district, and he refused to vote for the resolution.) As legislative staff analyses of the measure noted, several Bay-Area editorials emphatically advocated rejection of the resolution. After the Chronicle's political columnists exposed existence of the resolution in late August, nearly 1,000 comments on the Chronicle's blog site voiced rabid opposition to it. Only a literal handful supported it. A San Francisco Business Times survey asking: "Should the Bay Bridge be named for former S.F. Mayor Willie Brown?" produced 883 responses, with 89% voting "no" and 11% voting "yes". On September 16, after legislative adjournment, the Oakland Tribune declared: "The governor should reject the state Legislature's request to rename the western span of the Bay Bridge after former Assembly Speaker and San Francisco Mayor Willie Brown…. After all, it was Brown's selfish actions that prompted delays in the construction of the new eastern span for two years and cost taxpayers hundreds of millions of dollars in supplemental studies and inflationary costs….As former state Business, Housing and Transportation Undersecretary Robert Wolf, who dealt with Brown on the bridge project during Gov. Pete Wilson's administration, told our investigative reporters back in 2002, 'Willie Brown was playing games with people's lives'." (The Governor, a former Oakland Mayor, stated publicly on September 8 that the Bay Bridge should not be renamed. He rightfully declared that structures like the Bay Bridge and Golden Gate Bridge should not bear an individual's name.) As the Oakland Tribune correctly noted, those bridges are "regional, national and international symbols for the entire Bay Area. They link together disparate communities, and should help unify, not divide." The Department of Transportation is the Governor's responsibility. He should simply disregard the resolution, which unlike a statute or state constitution provision possesses no binding legal mandate.

Another under-publicized Assembly measure allows non-citizens to be jurors in all California courts. Assembly Bill No. 1401, passed by the Assembly in April and the Senate on August 19, grants legal immigrants the privilege of jury service. Currently, the California Government Code bars all immigrants legally present in California from jury duty, no matter their duration of residence in California or other states. Many immigrants reside in California for years without becoming citizens. Persons selected for jury service are chosen at random from mailing lists, telephone directories, registered voter lists and the Department of Motor Vehicles licensed drivers' list. No citizen is exempt by reason of occupation, economic status, race, national origin, religion, sex, sexual orientation or disability. An eligible citizen may only be excused from jury service because of undue hardship, as determined by the trial judge. Excluded are persons who aren't citizens, are less than 18 years of age, don't live in California, don't live in the county in which they are summoned to serve, been convicted of a felony or malfeasance in public office, don't possess sufficient knowledge of English, or are the subject of a conservatorship.

Why is this bill unworthy of gubernatorial approval? First, no shortage of qualified prospective trial jurors exists in any county in California. Most people are called, appear for jury service and are not selected. Secondly, why wouldn't a lawful immigrant become a citizen as soon as he or she qualifies after five years of legal residency? It makes no sense to reward a legal immigrant who demonstrates a lack of interest in citizenship to permit service on juries in criminal or civil cases, involving life, liberty, money, land, governmental action and wills or trusts. The bill reminds one of efforts the past decade to allow non-citizens to vote in Board of Education or other San Francisco Unified School District elections, such as bond measures. Even in liberal San Francisco, those measures were rejected by voters. Expanding the jury system to include non-citizen eligibility diminishes citizenship, which is based upon tested knowledge and understanding of American government and history. The idea is unwarranted and a potential precedent for allowing non-citizen voting. Veto the bill, Governor.

Retired former Supervisor, State Senator and Judge Quentin Kopp lives in District 7

During the Westside Observer's summer hiatus, (and while my wife and I tried to catch Atlantic salmon as guest of a law school classmate on a river in Eastern Canada), BART employees engaged in a four and one half day strike in the first week of July. The adverse effect on BART's average daily 350,000 riders was grueling and debilitating, first to the riders, and then to the Bay-area economy. Thereafter, BART and its employee labor unions resumed bargaining for several weeks, but the labor unions planned in early August to resume their strike until the Governor, exercising authority under California's statutes, sued in San Francisco Superior Court for imposition of a legally-authorized (by state law) court order suspending strike activity for 60 days. The 60 days expire at midnight on October 10th; BART and labor unions have reconvened bargaining sessions, all in private and not open to public observation.

BART employees contribute no money to their retirement system. BART asked that employees contribute a modest 2% for their pensions the first year of the contract, and 3, 4 and 5% in each of the following three years. BART increased its original proposal of an 8% pay raise over four years to 10% and on August 11 lowered its proposed employee pension contribution to 1% of just the base wage in the first year, and 2, 3 and 4% in three subsequent years. The labor unions rejected any contribution to the retirement system from employees, later demanded an 11.5% pay raise the first year, with a 5% per year increase in each of the next two years, and pension contributions of 7% for each such year. That means a 21.5% pay raise over three years.

Public opinion surveys demonstrate the Bay area citizenry wants a legal prohibition against BART employee strikes. That's not surprising. California law prohibits police officers and firefighters from striking, and historically,
American and California common law and California court decisions barred public employees from striking, including a strong California Supreme Court decision in 1949. In 1985, however, a divided California Supreme Court, in a case involving Los Angeles County Sanitation District employees, rewrote and judicially made new California law under the leadership of the late-Chief Justice Rose Bird, who, with two other California Supreme Court Justices, was recalled by voters a year later. In 1935, President Franklin D. Roosevelt famously informed U.S. Post Office workers who were contemplating a strike that no such right existed for government employees, and President Ronald Reagan in 1982 instantly fired FAA air traffic controllers who had struck. President Roosevelt declared that any strike by postal workers would be tantamount to a denial of governmental authority. Governmental employees, unlike private business employees, possess statutory civil service protections regarding discharge only after an administrative hearing before an independent hearing officer, and other beneficial conditions. In private industry, employment conditions are subject to collective bargaining; there exists no statutory civil service protection. As a practical matter, which even the Rose Bird California Supreme Court noted in 1985, because legislative bodies bear responsibility for governmental employee decision making, such as pension and health care benefits, the right to strike affords government employees "excessive bargaining leverage, resulting in a distortion of the public process and an improper delegation of legislative authority."

The Court could have mentioned that governmental employees can, and do, collectively through labor unions, or individually, donate to legislators' political campaigns. Those legislators can (and do) grant government employees pay and other benefits. That's not the case with private industry employees; managers don't become managers based upon employee votes. The California Supreme Court ruling, however, dismissed all the reasons for maintenance of California's historical bar on government employee strikes, including distortion of the political process. It simply made law by itself, allowing public employee strikes, with one exception: so called "essential public services." (The legislature had previously prohibited firefighter strikes). The court decided that only strikes by "public safety" employees are illegal, and that such employees and their unions are subject to damages to taxpayers. Thereafter, in 1989, the California Supreme Court held illegal a strike by police officers because public safety was threatened. Thus, only the legislature can enact a law prohibiting a strike by BART or any other public agency employees. Don't hold your breath waiting for that to happen. This legislature won't do it despite public sentiment. Prepare for BART management to surrender, for BART fares to increase and a sales tax increase to be submitted to voters in San Francisco, Alameda and Contra Costa counties to supply the enormous amount of money (over $1,000,000,000) BART needs to replace cars and other equipment, widen the Embarcadero Station platform and, of course, probably cover increased BART labor costs. A law school classmate of mine as a Professor of Labor Law at Yale 40 years ago proposed that bargaining between governmental employees and elected officials or representatives thereof should be open and public, not closed to the public behind conference room doors.

I still wait for some elected public official to propose that for California. The effect could be benign. The worst idea in the field is agreeing to transfer the decision making to a "neutral" arbitrator. Utilizing a neutral mediator to secure agreement constitutes a justifiable policy. Allowing an unelected arbitrator, however, to render a decision that binds taxpayers and governmental employees, represents abdication of responsibility and is illogical. An arbitrator doesn't answer to taxpayers or public employees unless desiring selection by unions as an arbitrator in the future. Don't be fooled into supporting the notion of an arbitrator to resolve the BART or any other governmental agency-employee dispute.

Regarding transportation, I note that the gaudy Transbay Terminal project cost is revealed already as over budget by at least $300,000,000. That doesn't include the expense of extending tracks from the present CalTrain terminal at Fourth and King Streets to the proposed pie-in-the-sky Transbay Terminal, a distance of 1.3 miles. I recently requested public records showing the supposed current costs of such extension and received 153 pages of documents; dated March 2008, (over five and one-half years ago) stating the extension in 2007 dollars would cost $1,801,622,823, including construction design, right of way acquisition and a reserve. Escalation at 4% per year is estimated as $663,987,471. That's not believable. A source informs me the current cost is probably about $4,200,000,000, with a reserve and cost escalation. That's reminiscent of the Central Subway fiasco, which will cost taxpayers at least $1,600,000,000 for 1.6 miles.

Former Board of Supervisors President and Democratic County Central Committee chairman Aaron Peskin told the truth in a July 29 communication to MTA General Manager Ed Reiskin, referring to a Willie Brown statement in the July 29 San Francisco Chronicle that the Transbay Terminal "over budget" revelation "should not come as a shock to anyone." Brown admitted; " We always knew the initial estimate was way under the real cost. Just like we never had a real cost for the Central Subway…in the world of civic projects the first budget is really just a down payment. If people knew the real cost from the start, nothing would ever be approved. The idea is to get going. Start digging a hole and make it so big, there's no alternative to coming up with the money to fill it in." Mr. Peskin observed that decisions like the Central Subway… "end up having a profound, negative financial impact on San Francisco's municipal finances." Beware of progenitors of projects from the MUNI or MTA. Mr. Brown's confession speaks worlds for those who expect truth from public officials, but it also represents a casual acquaintanceship with probity sadly characteristic of many current public officials, elected and appointed.

Retired former Supervisor, State Senator and Judge Quentin Kopp lives in District 7

September 2013

Getting Around

Chronicle asked the headline question on two letters to the editor, "Are bikes taking over City Hall?" Of course, they are. A healthy pursuit, it saves gasoline expenditures and it's trendy. The Municipal Transportation Agency (MTA) assuredly intends to spend as much as $6,000,000 to expand bicycle lanes and create other ways to enhance the bicycle "experience" in our city. In any public discussion of bicycling in San Francisco, one must be sure to express admiration and high regards for such an environmentally benevolent method of travelling. I now do so. I also point out the irony, and unjustifiable fact, that bicyclists, as such, don't pay a penny for the streets and roads they use. Since 1922, California motor vehicle operators have paid a user fee in the form of gasoline tax upon each gallon of gasoline purchased. (In California today, that tax amounts to 39.5 cents per gallon) Motorists also pay 18 cents per gallon gasoline tax to the United States of America. The proceeds of state gasoline taxation are placed in the State Highway Fund. That fund is used to build streets, roads and highway bridges used by motorists. The theory is simple and fair: those who use streets and highways should pay for the streets. Since bicycles don't require gasoline for operation, bicycle riders pay no tax or fee to use streets, roads and bridges.

Motor vehicle owners also pay fees to register their vehicles with the Department of Motor Vehicles, and drivers pay fees for licenses to operate motor vehicles. The proceeds of those fees are specifically devoted to paying the cost of the Department of Motor Vehicles and defray some costs of the California Highway Patrol. Bicycle owners do not pay a bicycle registration fee, or a fee for a license to operate bicycles on state streets and highways. Is that fair? I don't think so. It constitutes a manifest subsidy to bicycle owners and riders. Meanwhile, people continue to comment over the widely prevalent disregard of bicyclists to traffic control signals or stop signs, or even pedestrian crossings. But if the term "self-entitlement" is applied to bicyclists, they shouldn't be surprised or insulted. One other point is relevant: Prior to my departure after 12 years from the California State Senate, including 11 years as Chairman of the Senate Transportation Committee, I was selected to chair a joint conference committee of three Assembly members and three Senators to promulgate resolution of differences between legislation in the two houses for replacement of the eastern section of the Bay Bridge. Compromises between Southern California and Bay Area legislators were required respecting financing of the replacement span. Then-Assemblywoman Carole Migden was a member of the joint conference committee. Under pressure from the comparatively nascent bicycle lobbyists, such compromise resulted in inclusion of a little noticed one-way bicycle lane from Oakland to Treasure Island on the new eastern bridge section. The alleged cost was $ 50,000,000. The estimated cost of the incomplete eastern section bicycle accommodation is now $ 200,000,000. As you know, tolls on the Bay Bridge and the other six state-owned bridges on San Francisco Bay were increased to pay most of the projected cost of replacing the eastern bridge section. Those higher tolls have been paid by motorists, not bicyclists. It's one matter for a small portion of gasoline tax proceeds to be utilized to subsidize public bus and rail transit; it's another matter for bridge tolls and gasoline tax proceeds to be thusly applied for bicycle lanes and related accoutrements.

As the Chronicle's editor writer, John Diaz, phrased it on June 23: "If you think San Francisco has gone bonkers for bikes with green-painted riding lanes and a ride-sharing due this summer, get ready for more."

****************************************

In June, the Anaheim City Council defeated another proposal to establish a district system of electing City Council members. Anaheim contains approximately 330,000 residents and is the largest city in California which still employs at-large voting for its five city council seats. In June, San Mateo County's Board of Supervisors surrendered to threatened lawsuits under the federal Voting Rights Act of 1965 to force abandonment of its long-established and successful one-of-its-kind system. In my strong opinion, its system has always represented the best method of electing a county Board of Supervisors or any local governing board of the population size of San Francisco or fewer in residents. Until now, a candidate for one of the five San Mateo County supervisorial offices had to live in one of five geographically-drawn districts; as a candidate, however, that person was elected by all county voters. To me, it's been the best of both worlds as between San Francisco's historical at-large system, and the current district election system for San Francisco's Board of Supervisors. The Voting Rights Act of 1965 is antiquated and unjustified in most respects. (The U.S. Supreme Court so ruled last month.) Certainly, in California and San Francisco no barriers exist for those who wish to vote and those who wish to assay elected public office. That Anaheim has resisted demands from the usual sources demonstrates cool-headed elected local officials do exist, Virginia, in one California city of size.

I am regularly inveighed or asked about restoring San Francisco's at-large system, which existed until 1977 and was reinstated by voters (not the Board of Supervisors) in August 1980 in a special initiative election. The reason for that resuscitation of the at-large system was the tragic murders of Mayor Moscone and Supervisor Milk. In my opinion, we will never in our lifetimes (including yours, dear readers) see the restoration of the at-large election. The eleven district supervisors in our city are now tantamount to "ward bosses," the dukes and duchesses of their respective fiefdoms. Whatever the district supervisor/ward boss wants, for example by way of real estate development, that supervisor/ward boss gets. As you drive up or down Brotherhood Way between Lake Merced Boulevard and the 280 ramp, you'll notice an horrendous excavation and scarring of the north side of Brotherhood Way for a 182 units of millionaire housing which will change Brotherhood Way forever for the worst. Denuded of all but 2 trees on the site, that development resulted from the acquiescence and support of then-district supervisor Sean Elsbernd. Despite the educational and religious history of Brotherhood Way, renamed as such by the at-large Board of Supervisors and Mayor George Christopher in 1957 from Stanley Drive, and the continuous eight year project opposition of the Holy Trinity Greek Orthodox Church, the Masonic Temple, the Armenian School-(Krouzian-Zekrarian), St. Gregory's Armenian Church, the Lake Merced Church of Christ, the Brandeis-Hillel School and Congregation Beth Israel-Judea and the early opposition of the St. Thomas More Parish Council (until ordered by the archdiocese to desist), all except a few supervisors deferred to that district supervisor's desire and the project was approved by the Planning Commission, then the Board of Supervisors. Brotherhood Way as created to celebrate religious brotherhood, not million dollar housing. That sorry spectacle is repeated on a regular basis in every other supervisorial district of San Francisco, but repeal of district elections sorrowfully won't happen.

****************************************

Finally, I learned last month of the commencement of a private service in the Marina on a route that follows the Municipal Railway's 30x Marina Express line. Dubbed the Chestnut Express, the service guarantees seats for all passengers, with fewer stops and service once an hour during morning and evening rush hours. The cost is $6 per trip compared to a $2 fare on a MUNI bus. Few readers will remember that transit services in the form of cable cars, trolley cars and Mission Street jitneys once were privately operated in San Francisco. Only after wage escalation and other expenses, plus advent of universal automobile transportation after World War II ,did those private enterprises cease operation in favor of public purchases of such enterprises and, thereafter, huge taxpayer subsidies for operation. (Taxpayers now subsidize over 75% of MUNI expenses.) One jitney service, from the train station at 4th and Townsend Street to Market Street, remains. I personally wish the very best of success for the new Marina private bus system. Maybe it can be expanded to West of Twin Peaks neighborhoods. Wouldn't that be wonderful?

Retired former Supervisor, State Senator and Judge Quentin Kopp lives in District 7

July-August 2013

Malfeasance, Misfeasance or Nonfeasance?

As the April 2012 Westside Observer "goes to press", the major media event locally continues to emanate from the criminal action surprisingly instituted by the District Attorney against Sherriff Ross Mirkarimi. Readers already know that Mr. Mirkarimi, in a remarkable display of generosity by the District Attorney (and the Presiding Judge at the already-commenced trial), pleaded guilty to false imprisonment while the original charges of domestic violence, endangering a child and attempting to suppress evidence were dismissed as a result of a "plea bargain." (A recent United States Supreme Court decision by Justice Anthony Kennedy reminds us that approximately 95% of criminal cases in state courts result in plea bargains, actual trials are now the exception); Mirkarimi was then sentenced to three years of probation, a required anger management course, a $590 fine and a continuing restraint against reunion with his wife, the alleged domestic violence victim who refused to testify and has proclaimed such refusal personally and through an attorney ad nauseum during the past two months.

Exercising power under Section 15.105 of the San Francisco Charter, the Mayor then suspended Mirkarimi, as sheriff, and immediately notified Mirkarimi, the Ethics Commission and Board of Supervisors in writing on March 21, 2012 of numerous written charges against Mirkarimi. Speculation as to the outcome of such proceedings abounds, particularly in questions to this one-time Board of Supervisors member and retired Superior Court Judge, probably because of my 15 years of service on the Board of Supervisors and subsequent tenure as a Superior Court Judge.

In September 1976, after then-Mayor George R. Moscone suspended Airport Commissioner Joseph P. Mazzola for official misconduct, as President of the Board of Supervisors I presided over a five day hearing on those charges which resulted in a Board of Supervisors resolution, adopted 10-1, finding Mayor Moscone's charges true and removing the Airport Commissioner from the office. Although such action was upheld in the San Francisco Superior Court, the California Court of Appeal reversed the Superior Court, holding that the evidence adduced at the Board of Supervisors five days of hearing contained no legal basis for a finding of official misconduct.

Although the Court of Appeal rejected the Airports Commissioner's contention that the term "official misconduct" was unconstitutionally vague, it held that the commissioner could not be charged with official misconduct because the charges had nothing to do with his official capacity as Airports Commissioner or performance of his duties as such. The Court of Appeal pointed out that Black's Law Dictionary defines "official misconduct" as "[any] unlawful behavior by a public officer in relation of the duties of his office, willful in its character, including any willful or corrupt failure, refusal, or neglect of an officer to perform any duty enjoined on him by law." The court also stated that "official misconduct" includes any willful malfeasance, misfeasance or nonfeasance in office and that to warrant removal of a public official, the misconduct must have direct relation to, and be connected with, the performance of official duties, and amount either to maladministration or willful and intentional neglect and failure to discharge the duties of the office in question. The court further declared that malfeasance refers to "evil conduct or an illegal deed, the doing of that which one ought not to do, the performance of an act by an officer in his official capacity that is wholly illegal and wrongful." Quoting a legal compendium, the Court of Appeal added that misconduct includes such acts "as amount to a breach of the good faith and right action that are impliedly required of all officers." The Court of Appeal the ruled: "Thus, there must be a violation or omission of a proscribed act committed…while in office."

In this instance, the false imprisonment and the dismissed allegations of domestic violence and endangering a child occurred on December 31, 2011. Other acts assertedly occurring with next-door neighbors in the form of a potential effort to suppress a video, some e-mails and other possible evidence occurred no later than January 4, 2012. But Mirkarimi didn't become Sheriff until January 8, 2012. As far as the public and this commentator know, the acts complained of by the Mayor and City Attorney occurred while Mirkarimi was a member of the Board of Supervisors. All the foregoing is set forth to explain that a serious legal issue presents itself, even prior to Ethics Commission action much less any Board of Supervisors proceeding. Mirkarimi's attorney understandably filed suit in San Francisco Superior Court to prohibit further proceedings against him on the ground that the Charter Section 15.105, which defines official misconduct in pertinent part as "…any wrongful behavior by a public officer in relation to the duties of his or her office, willful in its character, including any failure, refusal or neglect of an officer to perform any duty enjoined on him or her by law, or conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers…" Don't ask me to predict the judicial result of such legal action by Mirkarimi to stop the Ethics Commission and the Board of Supervisors proceedings. I'll leave that to the San Francisco Superior Court and eventually the California Court of Appeal. You'll observe, however, that although Charter Section 15.105 contains much broader language than existed in the Charter in 1976, the Mirkirimi case involves acts allegedly occurring before Mirkarimi held the office of Sheriff.

In the midst of all the turmoil, one benign and sensible event occurred, namely, the appointment of Vicki Hennessy as acting Sheriff. I know Ms. Hennessy and her husband, retired San Francisco Police Officer James Hennessy. I happily vouch for her competency. She also possesses the confidence and support of the Deputy Sheriffs and other employees of the department. She now provides San Franciscans and the Sheriff's office reliable and sound leadership and I convey to her my warm best wishes for further civic achievement and personal satisfaction in new, important responsibilities.

While all the aforementioned excitement occurred, our hard-charging Board of Supervisors was spending tax dollars again, even though in a minor way, enacting a law to provide, on a one-year test basis, attorneys to parties in civil cases. The beginning cost to us is $100,000 per year. Only two supervisors, Elsbernd and Chu, voted against this unnecessary expenditure. The United States Supreme Court has long held that an indigent defendant in a criminal case is entitled to an attorney at taxpayer expense. That principle has never been extended to civil litigants, defendants or plaintiffs. Think about the ramifications if every indigent person wanting to "sue" is furnished without charge, an attorney by the taxpayers of San Francisco. Although the United States is often referred to as a "litigious society," you haven't seen anything yet if legislatures like the San Francisco Board of Supervisors begin to enact laws granting every non-criminal case litigant an attorney. Anyone want to bet the $100,000 this year won't be more next year? It's another example of why San Francisco's $6,600,000,000 yearly budget is higher than Philadelphia's, a city comprised of four times or more people as San Francisco!

Retired former Supervisor, State Senator and Judge Quentin Kopp lives in District 7

April 2012

Three strikes and Holiday Hijinks

Merriam Webster's Collegiate Dictionary, Tenth Edition, defines hooey as "nonsense" and states that its 1924 origin is unknown. I find hooey in contemporary publications in San Francisco, the daily morning newspaper and otherwise, on an almost-daily basis. The history, for example, of laws becomes obscure or muddied in an era of rapid communications and apparently little patience for historical facts. One example is the so-called "three strikes" law enacted by California voters on November 8, 1994 by an initiative, commonly then known as Proposition 184. It's not only criminal defense lawyers who condemn abhorrently such law as inflexible; it's newspaper columnists, editorial writers and academic commentators. To the contrary, by approving the "three strikes" law (California Penal Code Section 1170.2)(c)(2)(A)), California voters, as noted in a 1996 California Court of Appeals decision, determined that those defendants who have been convicted of serious or violent felonies merit greater punishment upon conviction of any new felony. Fifteen years ago the law was deemed constitutional by the United States Supreme Court after having previously been deemed constitutional by the California Supreme Court.

As criminal law practitioners, victim rights organizations, and students may know, the law arose from a sickening event on October 1, 1993 when 12-year-old Polly Klaas of Petaluma was kidnapped and murdered by a repeated felon on parole, who was then arrested on November 30, 1993. The felon, Richard Allen Davis, owned a lengthy criminal record of arrests and convictions, commencing at the age of 12 and incurred over four decades. The father of a teenaged girl previously murdered by a convicted felon in Fresno, California started an initiative, which easily qualified for the November 1994 State General Election. Prior thereto, the legislature passed its own "three strikes" statute, signed by then-governor Pete Wilson on March 8, 1994. Essentially, both the legislative and initiative versions provide that any person convicted of a second felony is subject to a mandatory state prison confinement at twice the number of years otherwise applicable to the second felony and those criminal defendants with two or more prior felony convictions and convicted of a third act constituting a felony are subject to a minimum sentence of 25 years. (Serious felonies include murder, voluntary manslaughter, rape, assault with intent to commit rape or robbery, assault with a deadly weapon or instrument on a peace officer, arson, exploding a destructive device causing great bodily injury, burglary, robbery, kidnapping, selling heroin, cocaine or any methamphetamine-related drug and grand theft involving a firearm.) The only difference in the two "three strikes" versions of the law as between the Legislature and the People of the State of California is that the statute approved by the Legislature required the third felony conviction be based upon a serious or violent crime; the initiative does not specifically so require and some repeated crimes like petty theft qualify as a "third strike" under the initiative. That has led to clamor every few years or so, and particularly now because of asserted overcrowding of state prisons, that the "three strikes" law must be revised, if not repealed. For example, in the 2004 State General Election, a revision, commonly called Proposition 66, would have explicitly required the third felony conviction to be violent or serious so as to trigger a 25 years-to-life sentence. Voters rejected it and with good reason. What the academic pontificators, the American Civil Liberties Union, critics and some politicians neglect to inform citizens is that the "three strikes" initiative expressly contains protection against the concededly questionable spectacle of a criminal defendant with two prior serious or violent felony convictions being convicted of petty theft, shoplifting, or marijuana possession and then sustaining a 25 year-to-life sentence. The 1994 initiative confers discretion upon the prosecuting attorney in any California county to move to dismiss or strike a prior felony conviction allegation in the furtherance of justice. And, if faith in prosecutorial discretion lacks respect among the aforementioned circles, the California Supreme Court in 1996 reiterated that the "three strikes" law did not give prosecuting attorneys the power to veto judicial decisions to dismiss a prior felony conviction allegation in furtherance of justice, meaning that any judge presiding over a criminal defendant's trial and eventual conviction possesses inherent power to dismiss and ignore a prior conviction of a serious or violent felony in sentencing a criminal convicted of petty theft, for example. Commonly, in sentencing a person just convicted of a third crime and possessing a record of two prior serious or violent felony convictions, the judge presiding over a petty theft trial will dismiss one of the prior felony convictions. I have done it myself in those circumstances. In other words the "three strikes" law, as interpreted by the California Supreme Court, inherently possesses provisions which prevent the type of imagined injustice critical commentators love to conjure in order to convince people unfamiliar with the criminal justice system that the "three strikes" law is abusive and subject to no commonsensical judicial restraints. In a civilized society, the law is justifiable and necessary. I doubt voters will repeal it.

On November 5, 1996, two years after the people of the State of California enacted the "three strikes" law, voters enacted the constitutional prohibition against discrimination or preferential treatment (California Constitution, Article 1, Section 31). It declares the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in activities of public employment, public education or public contracting. It also provides that nothing in the law shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education or public contracting. The law governs any city, county, city and county, the University of California, the California State University system, Community Colleges, school districts, special districts and all other political subdivisions or governmental instrumentalities.

Notwithstanding countless efforts, including those by San Francisco city government to evade the understandable provisions of that part of our State Constitution, and consistent, continuous judicial decisions upholding the State Constitutional provision, every legislative session discloses efforts by one or more legislators to try to circumvent Article 1, Section 31. The clarion call of "affirmative action" is heard throughout the state capitol and levels of local government. As was pointed out by the National Director of the Anti-Defamation League in 1995, affirmative action, as originally conceived, was an effort to provide education and training for persons in certain categories to compete equally in a merit-based process. He declared; "Equality of opportunity was a worthy goal in the 1960's and 1970's, and it remains a worthy goal today. We still believe there is a place in our society for in-service training, apprenticeship opportunities, placement assistance and recruitment of those victimized by past discrimination." I agree. Our society needs unremitting commitment to traditional forms of affirmative action and aggressive enforcement of anti-discrimination laws, but the best solution is assistance for the economically disadvantaged, regardless of race, color, sex, ethnicity or national origin. In fact, in the United States Senate debate over the 1964 Federal Civil Rights Act, its progenitor, the late Senator (and Vice President) Hubert H. Humphrey of Minnesota declared the act " would prohibit preferential treatment for any particular group…" In 1973, in the House of Representatives, an amendment to the so-called Alaska Pipeline Bill provided: "The Secretary of the Interior shall take such affirmative action as he deems necessary to ensure that no person shall, on the grounds of race, creed, color, national origin or sex, be excluded from receiving, or participating in any activity conducted under any permit, right-of-way, public land order or other Federal authorizations granted or issued under this title." Senator Humphrey's fight against racial discrimination and preference was an example of public service at its finest, an object lesson for those who note deficiencies in observing State Constitutional requirements and thoughtful civil rights principles articulated by the creator of the Federal Civil Rights Act.

Finally, you can't disregard in this season of Christmas and Hanukkah fervor some of the trappings of post-election City Hall. Among the ordinances and proposals under consideration to cure our City's ills are such beauties as an effort by the Metropolitan Transportation Authority and supervisors to raise money by forcing a private property owner who furnishes free parking to his or her customers on his or her private property to pay the city an annual fee of $1000 per parking space. Think about it: a business owner buys property in order to conduct business and ensures space for customers to park without charge. That means customers don't need to plug money constantly into parking meters. It's obvious the Metropolitan Transportation Authority resents such foresight and business sense. I'll be waiting to observe Board of Supervisors action on that inane proposal while it contemplates a Mirkarimi proposal to charge grocery and other types of business customers money for paper bags in which to carry their purchases home. It's not enough that City Hall wants to compel our children and us not to eat specified foodstuffs, it's not enough that such savants advise us to eschew plastic bags and it's not enough that we recycle paper bags. City Hall will generate money for its $6,800,000,000 annual budget by docking us for using a paper bag to carry our groceries and then to recycle such bag. It's a wonderful world in often clownish City Hall, but let's enjoy fun, games, parties and presents this month and trust in the New Year.

Quentin Kopp is a former Supervisor, State Senator and Judge. Feedback: editor@westside observer.com

December 2011

Ballot Box Deliberations

On the premise that this estimable journal will be published and disseminated before the November 8th election, I supplement my October commentary and voting recommendation.

A brief reiteration appears warranted. I endorse Public Defender Jeff Adachi and City Attorney Dennis Herrera for Mayor; Bill Fazio, former Deputy District Attorney for 20 years and President of the Lakeshore Acres Improvement Club, for District Attorney; and Sheriff's Captain Paul Miyamoto, Lowell High School graduate and 15- year veteran in the Sheriff's Department, for Sheriff. (I also note that former Supervisor Tony Hall has iterated strong positions on important issues such as stopping the baleful Central Subway Project and passing the Garbage Collection Competitive Bidding Initiative next June.)

Voting against Propositions A and B, a combined $749,000,000 set of general obligation bond issues, is not only warranted, but virtually mandatory for taxpayer protection and trying to teach the City Hall "family" a lesson. Proposition A allegedly enables remodeling, repairing and renovating schools, the fourth such measure, including two parcel tax assessments, since 2000. General Obligation Bonds represent City government borrowing. The San Francisco Unified School District has wrongly managed approximately $1,000,000,000 (!) of parcel tax and bond proceeds over the past 10 years. Why reward it with another $500,006,000 (plus 60% more interest) taxpayer obligation?

In the October 6 Examiner, Ken Garcia accurately exposes Proposition B as "…no minor pothole funding request." He rightly states that it's a $248,000,000 "bond measure aimed at doing what the Board of Supervisors and the Mayor's office have consistently failed to do." That's the point. Like all other cities and counties, San Francisco receives money from state gasoline tax proceeds (18 cents per gallon) for repairing our city streets. Instead, City Hall used state gasoline tax remittances for other purposes, usually related to Mayoral and Supervisorial favorite causes like tree-planting and a ramp to the Board Of Supervisors President's chair (over $650,000 for that nicety!) Maybe they'll learn to spend our gas tax payments to repair potholes and maintain our streets.

It's no contest as between Propositions C and D, respecting reformation of the City's deficit-afflicted pension system: Proposition D is genuine reformation; Proposition C is contrived to disguise a temporary cure of ever-higher general fund taxpayer contributions to the city retirement system and increasing pension plan deficits. Proposition C, for example assumes a 7 ½ % increase in value of the stocks and real estate owned by the city retirement system, although in the last ten years it has never been higher than 5 percent. Proposition D doesn't do that. Proposition D limits any pension to no more than $140,000 annually; Proposition C allows $190,000 per year pensions. (Did you know that only about 100 city employees receive less than $50,000 in salary?)

I also urge a vote against E, F and G and a vote for Proposition H. Proposition H has suffered a viciously misleading and distorted opposition campaign, even though it's a mere declaration of policy expressing the view that public school assignments should, as a matter of policy, be based upon a child's neighborhood. One of the expensive multi-colored flyers clogging our mailbox from education establishment opponents claims: "Don't fix what isn't broken." Isn't broken? Proposition H exists because of the herculean efforts of uncompensated parents and other citizens who qualified it as an initiative. They're the parents who know what's broken, because their children are shipped miles from their neighborhood pursuant to arcane school district policies. Not broken? In the 1969-70 school year, 90,790 pupils attended our public schools; in 2011-12, there were but 52,900, with another unidentifiable number choosing charter schools. Although the Board of Education may blithfully ignore it, let's pass Proposition H and make that board then explain any refusal to follow Prop H's neighborhood school policy.

Let's turn to another subject. Several redundant debates and fiery rhetoric have captured the mainstream media's attention this summer and fall, respecting Proposition 13. Older readers will probably recall property assessment and taxation conditions in the late 1960's and early 1970's. Younger readers will not. Recitation of history thus seems appropriate. Before June 1978 and enactment of Article XIIIA of the California Constitution, if market values of residential and commercial property increased, so did the assessed values and the consequent property taxes. For a homeowner, that asset didn't produce revenue until such time as it was sold or otherwise transferred. A higher assessment and resultant property tax levy were annually imposed, however, as if it was a revenue-producing asset. Real estate values increased through the 1960's and into the 1970's. People with Social Security and retirement benefits lived on an income fixed by those respective plans. The assessor nevertheless appraised your home at market value and the Tax Collector collected the always-increasing property tax from homeowners. Homeowners finally revolted. The revolt was called "Proposition 13," the Jarvis-Gann Property Tax Reduction Amendment to the California Constitution. Proposition 13 limited an appraised value increase to 2% per year and the tax rate to 1% of cash value annually. Despite opposition from then-Governor Jerry Brown and almost every State, Federal and local public official in California, voters approved Proposition 13 by 65% to 35%. (I was almost the only elected San Francisco official as a member of the Board of Supervisors to support it openly and publicly.) Sure, there are infirmities in Proposition 13 conceptually. I've always believed commercial real estate should be separated from residential property on a so-called "split-roll" and appraised at its current cash value, not its 1978 value. (Under Proposition 13, with an exception for transfers to spouses or children, a home or other real estate is reappraised at market value only upon sale or trade.) The reason? Commercial property produces income, tangible money proceeds; residential property doesn't until it's sold. The "chatter" of the "chattering class" regularly calls for changing or repealing Proposition 13. You'll read that in your morning newspaper, you'll hear it from your aggrandizing local political candidate or from self-appointed academic experts. The truth is that repeal of Prop 13 simply won't happen.

Unknown to most San Franciscans, the independent and non-partisan California Poll by Mervyn Field, commonly known since its founding in 1947 as the "Field Poll", surveyed a representative 1001 registered California voters between September 1 and 12, 2011 in English and Spanish. The Field Poll found that Californians would today back Proposition 13 by about the same margin as they did in 1978, namely, 63% to 29%, with 8% undecided. Support was broad. Majorities of voters within each political party endorse the measure, as do homeowners and even renters, including recent homebuyers. That's right: 53% of Democrats would vote for Proposition 13 again compared to 40% who would vote against it and 7% undecided. With non-partisan voters, like me, and smaller parties, 63% would retain Proposition 13. Even 58% of surveyed renters would vote for Proposition 13 as against 32% who wouldn't and 10% undecided. Among those purchasing a home in the last ten years, 62% would vote for Proposition 13. (You didn't hear any of that from local media.)

The Field Poll also asked voters whether they would change Proposition 13 to permit business and commercial property taxation at a higher rate than residential property. Surprisingly, 50% stated they wouldn't, 41% would and 9% were undecided. That's the lowest percentage of approval of the split roll for commercial property since just after Proposition 13 was passed in 1978. At that time 54% approved a split roll. In fact, in 1980 a Field Poll demonstrated 68% approval of a split roll. Voters also reject changing Proposition 13's two-thirds legislative vote requirement to increase taxes, either by modifying it to a simple 50% +1 majority vote or even reducing the legislative vote requirement to 55%. That idea would lose by 65% to 30% with the rest undecided. The message to all politicians and academic and editorial soothsayers is plain: Stop the caterwauling about Proposition 13 because voters understand that a home is a non revenue-producing asset and shouldn't be taxed as if a "paper profit" (at least the "paper profit" in the pre-2008 days of surging real estate prices) puts cash in homeowners' pockets to pay the local tax collector. Proposition 13 will continue to sustain homeowners who live on fixed and modest incomes – fortunately.

Quentin Kopp is a former Supervisor, State Senator and Judge. Feedback: editor@westside observer.com

November 2011

BALLOT RECOMMENDATIONS: NOVEMBER 8TH

Finley Peter Dunn, who died in 1936, was one of America's most conspicuous political commentators and cartoonists. Utilizing "Mr. Dooley's Opinions" as his device, Dunn rendered Mr. Dooley, a mythical Irish immigrant expressing his observations on New York City and State politics but also on humankind in general. Among "Mr. Dooley's Opinions," bowdlerized for this column, was, "A man that'd expect to train lobsters to fly in a year is called a 'loonetic' but a man who thinks men can be turned into angels by an election is called a reformer and remains at large."

It seems apt to provide for the first time in over a decade a public recitation of my views and recommendations concerning the November 8, 2011 Municipal Election, which features concentrated competition for Mayor, District Attorney and Sheriff, plus eight ballot measures. Two of the measures involve general obligation bonds in the total amount of $779,000,000, three constitute Charter amendments, two constitute ordinances, and one represents a declaration of policy.

The campaign for mayor features an incumbent, whose narrow selection by the Board of Supervisors in the first week of January was conditioned upon him not seeking election to the office on November 8th. The appointment resulted from an inside City Hall scheme by former Mayor Willie Brown and Chinese Chamber of Commerce Executive Director and chief intimidator Rose Pak, who thereafter organized an ersatz citizen supplication for the servile appointee to seek election to San Francisco's most significant public office in the face of prior promises not to run. In some part, because of the assumption that the election would not feature an incumbent Mayor, fifteen other San Franciscans effected in early August their candidacies. After reviewing the history, qualifications and utterances of 11 of such candidates, I've decided carefully to endorse two, based primarily on their city government experience, their intellectual and financial honesty, and their statements of intent respecting policies.

Due to ranked choice voting, I'm able to, and do, strongly recommend for your consideration Public Defender Jeff Adachi and City Attorney Dennis Herrera for Mayor.

Dennis Herrera possesses almost a generation of experience in city government and the myriad of issues that confront a San Francisco mayor. He has served as a Deputy City Attorney and thereafter, with an interval of legal private practice, as the elected City Attorney for nearly 10 years. He knows right from wrong; he knows, for example, the Central Subway project is one of he most disreputable wastes of taxpayer monies, local, state and federal, in recent history and he has so stated with clarity and vigor, even in the face of mob opprobrium contrived by the afore-said Pak and her associates. Moreover, in June 2012, San Francisco voters will finally be given the opportunity to abolish the monopoly in garbage collection, transportation and recycling with a qualified citizen initiative, of which I am a part, to require competitive bidding for such now-monopolized service, plus a first time ever payment of an annual franchise fee to San Francisco's general fund. While prevented by the San Francisco Charter from publicly supporting or opposing any ballot measure, City Attorney Herrera states publicly he will vote for that initiative next June. (Incidentally, candidates Adachi, John Avalos, Tony Hall, Joanne Rees and Phil Ting have stated publicly their support of such initiative, while candidates David Chiu, Bevan Dufty and appointed Mayor Lee have publicly declared opposition to competitive bidding. It was Lee, in his 2001 role as Director of Public Works, who granted the monopoly NorCal Waste a 44% rate increase after his own staff had recommended a maximum 20% rate increase. It's estimated such action has cost San Francisco ratepayers approximately $850,000,000 or $85,000,000 annually over the past 10 years! Herrera's public policy positions tell me he is a man of rectitude, not weakness or vainness, like our last mayor.

So is Jeff Adachi. He possesses a generation in city service, first as a Deputy Public Defender with a reputation for consummate preparedness, then for almost this past decade as the elected Public Defender. Both last year and this year he has led the struggle to qualify an initiative Charter Amendment to reform the city employee retirement system, which drains our general fund because of imprudent changes during the stock market and real estate glory days of 2000-2008. As with the nonsensical Central Subway project, the San Francisco Grand Jury first alerted taxpayers in a June 2010 report entitled "Pension Tsunami." This fiscal year, July 1, 2011-June 30, 2012, taxpayers will contribute approximately $422,000,000 to the pension fund, increasing by fiscal year 2014-15 to nearly $800,000,000, which constitutes about 31% of the City's payroll costs! Pension payments to city employees vary from a few hundred dollars per month to as much as $22,600 a month ($271,200 annually) and over 600 retired city employees receive more than $108,000 per year in pension payment as of July 2010. Jeff Adachi's last initiative received 43% approval from voters in 2010, despite expenditure of more than $3,000,000 by its opponents. His current pension reform plan is another voter-initiative (Proposition D). Even the City Controller, part of the City Hall "family" (don't you love that repulsive phrase, which really means your pockets are about to be picked) concluded in a June 19, 2011 report that Jeff Adachi's Proposition D will save as much as $1,600,000,000 over the next 10 years. Adachi also declares unreservedly his support for ending the garbage conglomerate's monopoly and introducing competitive bidding for such $250,000,000 per year contract. (San Francisco is the only jurisdiction of 79 in California surveyed for the Department of Environment which does not require competitive bidding for garbage collection, or a franchise fee by the successful bidder.) Adachi is principled, brave and extraordinarily well-informed. That's why he earns my vote.

Six aspirants have filed for the District Attorney's office, including another unqualified appointed incumbent, who was only admitted to practice law in California two years ago and has never tried an actual case, civil or criminal, in a courtroom. The appointed incumbent wouldn't know a municipal corruption case if his life depended on it. I recommend unequivocally your vote for Bill Fazio, who is past-President of the Lakeshore Acres Improvement Club, and served for 15 years as a Deputy District Attorney trying the most serious and violent felonies in San Francisco Superior Court. He has practiced trial criminal defense law for the past 10 years. He is the only candidate with actual trial experience of such magnitude. There are two others with some trial experience, including one who may have violated the California Election Code by promising not to run if the incumbent appointed her his Chief Deputy District Attorney. (The complicit former District Attorney and now Attorney General Kamala Harris unsurprisingly refuses to act.) Bill Fazio possesses the experience to advise trial deputies in their trial problems and formulate trial strategy with them. He possesses also the requisite experience to establish training and teaching of new and inexperienced deputies in the District Attorney's office. The appointed incumbent can't do that; he's never tried a case and wouldn't know what to do. In my strong opinion, there is only one person to vote for as District Attorney and that is our neighbor, Bill Fazio.

I also recommend Paul Miyamoto for Sheriff. Why? Because he, of all candidates, is the only person with demonstrable experience in the responsibilities of the Sheriff's office. A Richmond District native, graduate of Lowell High School and the University of California at Davis, Paul has served in the Sheriff's Department for 20 years, promoted by Sheriff Mike Hennessey presently to Captain of the Department, supervising the City Jail, probably the most demanding position in the entire department. For what it is worth, he is the endorsed candidate of the Deputy Sheriffs Association, composed of men and women who have observed his performance through 20 years of development from a rookie Deputy Sheriff to Department Captain.

I urge a vote against Propositions A and B. Proposition A is a $531,000,000 General Obligation bond issue. With interest payments to the bondholders, it will exceed $1,000,000,000 in eventual taxpayer costs. It includes paying $1,500,000 for "Outreach and Communication" with citizens "affected by the work to be performed in this issue." That means $1,500,000 to fancy public relations hacks of the sort that "took" the California High-Speed Rail Authority for $3,000,000 in slightly more than one year. School district projects invariably exceed cost representations to the public. That's happened three times in the last several years. Why reward misrepresentations again. Vote No on A.

Proposition B was brilliantly dissected in this journal last month by George Wooding, immediate ex-President of the West of Twin Peaks Central Council. It's a $248,000,000 General Obligation bond issue, not for new structures, but for repaving streets and eliminating potholes. Money for those purposes is transmitted to San Francisco every year from the proceeds of our gasoline taxes in the State Highway fund. Instead of using such gas tax revenue for maintenance and repair, our City Hall wastrels have spent it on items such as over $500,000 for a ramp in the Board of Supervisors chambers, planting trees, graffiti abatement and other non-road purposes. If the Mayor and Board of Supervisors had practiced fiscal responsibility, our remittances from the State Highway Fund would have been used for everyday maintenance. General Obligation bonds represent borrowing. Proper governmental administration means borrowing only for capital improvements, not for everyday expenses. It is intellectually dishonest to borrow money in the amount of $248,000,000, plus another $200,000,000 or more in interest payments, to perform everyday maintenance tasks. Vote against Proposition B.

I have already explained why we should vote for Proposition D, and inferentially against Proposition C. Proposition C, promulgated by city employee labor unions, including the police and firefighter unions, with the appointed mayor and supervisors, misleads voters into believing the city's pension system will be righted from potential insolvency by its approval. Vote for D; Vote against C.

Chinatown's Subway and the Garbage Kerfluffle

The August 23, 2011 Wall Street Journal put it best: "Tony Bennett may have left his heart in San Francisco, but the politicians who contrived the city's Chinatown subway project must have left their brains somewhere else. The subway is a case study in government incompetence and wasted taxpayer money." That editorial, of course, will be recognized by discerning readers as a characterization of the so-called Central Subway project, which was also the subject of an exhaustive 55-page June 2011 report by the San Francisco Civil Grand Jury, entitled" Too Much Money for Too Little Benefit." The Grand Jury investigation was laborious, involving seven months of painstaking, penetrating collection.

The amount of information. Its report deserves more respect than the disdain shown by City officials, from the Mayor down.

The project cost is currently estimated as $1,578,300,000 cost. It is for a subway of 1.7 miles, starting from an above ground station at Fourth and Brannan Streets and travelling underground with stops at Moscone Center, Union Square and Chinatown. As the Grand Jury notes, in 1989 San Francisco voters were importuned to enact a ½ cent sales tax for just 20 years to generate an estimated $200,000,000 for transit and transportation improvements along (1) the Bayshore corridor, also referred to as Third Street in the Hunter's Point / Bayview neighborhood, (2) the Van Ness corridor, (3) the Geary corridor and (4) the North Beach corridor. Voters were assured the ½ cent sales tax would expire in 2010.

The first project was the T-Third (Street) light rail system. It eventually cost approximately $648,000,000, substantially exceeding the $200,000,000 estimate for improving all four of the above-mentioned corridors. Thereafter, the "T-Third" was deemed the first phase of a two-phase project called the Bayshore/North Beach corridor project. The second phase was renamed the Central Subway. THe sales tax money having been spent in 2009, San Francisco voters were induced to retain such ½ cent sales tax for transportation, and pay it this time until 2033.

The T-Third's first phase, authorized by voters in 1989, was not completed until 2007, 18 months late and vastly "over budget." The Central Subway phase, planned to complete the Northern extension, was scheduled to open this year, 2011. Its earliest completion date is now advertised as 2019. In 2003 the Central Subway was estimated to cost $648,000,000; by 2004 the estimate was raised to $763,000,000; in 2006 the cost estimate rose to $994,000,000; and, as stated, the 2011 estimate is $1,578,300,000. (Want to bet it will break $2,000,000,000 by 2019—if ever built?

The Grand Jury noted that the T-Third budget in its final design was approximately $567,000,000; including a contingency $35,600,000 for inaccurate cost estimates. The cost "overrun" amounted to $81,000,000, about 22 percent of the final design estimated cost. By extension, the Central Subway project by 2019 could cost over $1,610,000,000 if the cost "overrun" is approximately 20 percent of the originally planned cost, the general expectation on large construction projects in the United States. Thus, at an approximate $1,600,000,000 cost, the Central Subway will mean an expenditure of almost $100,000,000 for each tenth of the 1.7 mile project.

The project's progenitors are one Rose Pak, executive chieftain and leading political intimidator of the Chinese Chamber of Commerce, Willie Brown, onetime mayor in whose administration this irresponsible project was nurtured, and that sycophantic entity known as SPUR ("San Francisco Planning and Urban Renewal") whose hectoring about San Francisco has disguised an empty headed superiority complex for much too long. For those who may think it is too late to stop this reckless, venal project because of construction-like inconveniences around Union Square, be advised that's precisely the despair the aforementioned villains desire from the relocation of utilities underway in that sector. (To be sure, over 130,000,000 of taxpayer money has been lavished on such "busy work," but hundreds of millions more taxpayer levies will, without nugatory civic indignation and action befor this December, be wasted bit by bit.) Almost $1,000,000,000 of federally-imposed taxes will be approved or not approved by Congress in November.

That's because Central Subway adherents represent that about 92 percent of the needed money will emanate from Federal and State governmental funds. That involves $966,000,000 (61% of the total) and $488,000,000 from the U.S. Treasury and the State of California, respectively, and about $124,000,000 (8% of the total) from proceeds of the local ¹/2 percent transportation sales tax. But, if the Central Subway project costs more than now claimed, neither Federal nor State funds will be available for cost increases, which means that San Franciscans will underwrite all cost "overruns." That's why the Grand Jury recommended that the San Francisco Metropolitan Transportation Agency )"MTA"), the project sponsor, should hire an independent entity to investigate whether the current budget represents a "realistic estimate."

There's more. Project sponsors claim the Central Subway will serve Chinatown residents and shoppers. The Grand Jury concluded that "…to say that the Central Subway will alleviate this problem (overcrowded conditions on the 33-Stockton bus) is disingenuous." The Central Subway would miss connections with 25 of the 30 light rail and bus lines that it crosses. No direct connection exists to BART—or to Bay ferryboats. Riders will need to walk 1000 feet to transfer between the Union Square / Market St./Powell Street stations. Direct connection from the T-Third line to the MUNI Metro will be eliminated. And, the Central Subway ignores service to the Financial District. A 2006 review of the Central Subway design by an independent engineering firm, commissioned by MTA, concluded that the project "promises to combine high capital costs with higher operating costs, and …does not, apparently, effectively meet the market needs in the corridor it is intended to serve."

Moreover, MUNI cannot provide an assurance of its ridership predictions. Those have fluctuated from a high of 61,000 to a current estimate of a mere 35,110 riders on the Central Subway. The MUNI is known for unreliable ridership claims and the trip times on the Central Subway will actually be longer than currently exists on surface buses. The Sierra Club, changing its prior support position, concludes that the project should now be abandoned and the local and state funds be applied to meritorious MUNI and other transit projects in our city.

Talk about misuse of taxpayer money, this project possesses the highest capital costs per mile of all 14 light rail projects in the Federal Transit Administration's so-called "New Start Program" nationally has the highest capital cost on a "new rider basis" of those 14 projects, and the lowest percentage of "new riders" of all such Federally-funded projects. Meanwhile, taxpayer dollars will be drained so as to undermine MUNI maintenance and exacerbate the overburdened MUNI vehicle control systems, which must be a MUNI priority. The MUNI currently incurs an operating deficit of about $150,000,000 per year and needs a new signal system at Forest Hill Station and elsewhere; using our sales tax levies for the Central Project will cheat us of a new MUNI communications system. To City Hall: Heed the 2011 Civil Grand Jury report or continue to savage taxpayers and MUNI riders. End the Central Subway Project.

During the Westside Observer's summer vacation, it should be noted that the celebrated voter and ratepayer initiative to modify an antiquated 1932 ordinance governing garbage collection, transportation and disposal, which resulted in a monopoly never contemplated by San Franciscans in 1932, was certified for the June 2012 municipal election despite physical and financial efforts by its monopolistic opponent to prevent voters from signing the necessary petitions. The initiative also provides for the first time in history that the bid-winning garbage collector will pay San Francisco a franchise fee. Remarkably, San Francisco is the only jurisdiction in California which does not charge a franchise fee to a private garbage collection or transportation company. By comparison, Oakland, with less than one-half of San Francisco's residents, receives $30,000,000 per year as a garbage collector's franchise fee. San Francisco is the only such jurisdiction which does not require competitive bidding for garbage collection, transportation or recycling. With a mayoral campaign involving some 11 or more worthies, voters now possess the opportunity to ascertain the support or opposition of each mayoral candidate respecting such June 2012 initiative. Already, candidates John Avalos, Tony Hall, Jeff Adachi, Phil Ting and Joanne Rees have declared their public support for next June's ballot measure and candidate Dennis Herrera, prohibited as City Attorney by our charter from proclaiming a public position, has informed this writer he will vote for the proposition next June. The incumbent mayor, who as then-Director of the Department of Public Works over ten years ago, granted Nor-Cal Waste, now called Recology (a fancy "brand" name), a 44 percent rate increase in the face of a staff recommendation of a 20 percent increase, Supervisor David Chiu and candidate Bevan Dufty have refuse to support abolition of the monopoly in favor of competitive bidding. That should be instructive to all voters this November 8th.

Quentin Kopp is a former Supervisor, State Senator and Judge.

September 2011

Incurring Civic Debt Without Taxpayer Approval

In last month's Westside Observer, the illustrious George Wooding, 2010-2011 President of the West of Twin Peaks Central Council, wrote an acutely informed exposition and analysis of City Hall reliance upon "an expensive form of debt called Certificates of Participation "COP"…to pay San Francisco's bills, …." Mr. Wooding sharply exposed a political practice of the Board of Supervisors and Mayor over the past 10 years of incurring civic debt with multiple year costs to taxpayers but without the taxpayer approval required for other long-term public debt, most usually, general obligation bonds. His revelation of such iniquitous city government practice in this modest monthly neighborhood journal raises the question of the absence of such reportorial disposition by our daily newspapers, which, sadly, no longer possess an investigative reporter like the Chronicle's long-time writer Lance Williams.

George Wooding's column reminded me of another wasteful, inefficient practice of San Francisco government arising from misuse of the city's share of state gasoline tax payments to San Francisco. While most local taxes such as property, sales, parcel and real estate transfer taxes bear little logical relationship to ownership of property or purchase of products in terms of governmental cost, the state (and federal) tax on gasoline purchases does bear an unmistakable relationship to the charge. Gasoline tax is collected directly from the beneficiaries of the avowed use of such tax revenue. That is, gasoline tax proceeds are intended to pay the cost of building, maintaining and repairing streets and highways, and nothing else. The gasoline tax historically (and correctly) has been called a "user fee." Those persons, residents and non-residents alike, who use California's streets and highways, pay the cost of building, maintaining and repairing the same. In the same vein, bridge tolls are also user fees, utilized for creation, maintenance and repair of the bridges used by toll payers. California's state gasoline tax of 18 cents per gallon began in 1922 (at two cents per gallon) after state legislators and governors had thrice presented general obligation bonds for approval by state voters in the years between 1904 and 1919. Our California forebearers finally realized that borrowing money by general obligation bonds caused additional interest costs for taxpayers, amounting to 50 to 75 percent additional interest expense on top of repayment (over 30 years usually) of the general obligation bonds themselves. Charging actual users of the structures needed for motor vehicular transportation was plainly a more rational and considerably less expensive method than long-term borrowing.

The difference between financing of structures from proceeds of a general obligation bond and financing streets and highways from a built-in user fee isn't widely understood, even by elected officials, who prefer expediency rather than sound fiscal practice. For example, after my election in 1986 to the California State Senate and my appointment in 1987 as Senate Transportation Committee chairman, the then-governor, trying to avoid a gasoline tax increase necessary to accommodate a continually increasing California population and motor vehicle registration, persuaded two-thirds of each house of the legislature (but not me) to authorize submission to voters of a multi-million dollar state general obligation bond issue for state highways and local streets. California voters recognized the illogic of borrowing money, which would be repaid from the state general fund and not by highway users, and rejected the measure. During his gubernatorial tenure, however, Arnold Schwarzenegger, who knew less about fundamental governmental principles and generally accepted governmental fiscal practices than any governor in my lifetime, persuaded a pliable term-limited group of legislators to repeat that misadventure, this time with success from an unwitting electorate. City Hall, and particularly the temporary mayor, wants San Franciscans to borrow $248,000,000, and incur increasing interest rates simply to cure potholes and repair streets, not to create new structures on a one-time basis.

That means City Hall has effectually squandered state gasoline tax remittances by not spending it exclusively for current street maintenance. A Department of Public Works publication demonstrates that fact. The state remitted $12, 234,224 to the City in fiscal year 2010-11, July 1, 2010 – June 30, 2011. The estimate for the current fiscal year is $12,304,224. Additionally, San Francisco receives for street maintenance and repair proceeds of the state sales tax upon gasoline, (also a user fee) amounting to $12,596,000 in the last fiscal year and forecasted as $13,938,000 in this fiscal year. There's more: a small portion of the sales tax paid by users of gasoline, designated as the Road Fund, was also received in the amount of $3,783,557 last year and will be the same for this fiscal year. Finally, the so-called Metropolitan Transportation Authority county share, obtained from federal gas/excise tax charges on gasoline users was $3,178,017 last year and is fixed at the same sum this fiscal year. Total gasoline tax and Road Fund revenue for San Francisco's maintenance and repair of streets was $31,791,798 last year and will be about $33,233,298 from now until June 30, 2012.

How did San Francisco use such money last fiscal year? How will it use it in the current fiscal year? For street repair, including pothole and patch paving, only $2,537,979 of gasoline user payments was used last fiscal year and only $ 2,570,602 will be used in the current fiscal year. For street paving, a proper use of gasoline user fees, $ 12,596,000 was devoted last year and about $13,938,000 will be devoted in the current year. All the federal gas and excise tax subvention money ($3,178,017) was employed for traffic sign and signal maintenance last year and this year, but $8,225.554 of gasoline user fees were diverted last fiscal year to street cleaning, both mechanical and manual, sidewalk and plaza cleaning, graffiti abatement and remedying illegal dumping. This fiscal year's appropriation for such purposes purportedly to decline to $5,876,822, but the $2,620,174 spent last fiscal year for "Urban Forestry Maintenance" will be increased to $5,279,582. Approximately $2,634,000 was spent last year not for repair or maintenance, much less construction of streets, but for "debt service" on a $48,000,000 Certificate of Participation the Board of Supervisors and then-Mayor Gavin Newsom authorized in 2010, notwithstanding the negative recommendation of the Board's Budget and Legislative Analyst, Harvey M. Rose who warned that various street projects and disability access improvements to the Board of Supervisors legislative chamber were "routine and ongoing" and "would be most appropriately financed on a pay-as-you-go basis without the issuance of long-term debt such as COPs." He reminded supervisors and Newsom that long-term debt, such as general obligation bonds and COPs "is typically issued to finance large one-time capital improvement projects…" They ignored their Budget Analyst, so now our general taxes are squandered on $2,360,775 in interest to the "Goldman Sachs" of the world.

In short, San Francisco has misused its share of state and federal gasoline taxes and the excise and sales taxes thereon. Instead of practicing historically fundamental governmental financial wisdom of applying user fee proceeds from gasoline taxation for routine work, city government has been "cute", applying it to planting and maintaining street trees and a loan to lower the President of the Board of Supervisors' podium so that it is 12 inches above the floor, installing a ramp to such podium and improving the audio/visual wiring which runs underneath each podium. Furthermore, in October 2010 the Department of Public Works informed the Budget and Legislative Analyst some $38,964,935 of a $48,000,000 Certificate of Participation is allocated to repaving, maintaining and repairing streets because the department considered all those projects "Capital Improvement Projects", and not routine maintenance. That's how our city government operates, ignoring elemental principles, misspending gasoline user taxes and incurring debt indebtedness which will be repaid, not by motor vehicle drivers, but by property, parcel, sales, real estate transfer and other taxpayers from the City's General Fund.

There's more: as revealed by the Examiner's Melissa Griffin on May 31, 2011, city government spent $29,000 for a poll on whether voters will approve the $248,000,000 general obligation bond for street repairs and potholes. One poll question was premised on "tens of millions of taxpayers' dollars" dedicated from proceeds of such bonds to a remodeling project on Jefferson Street for the America's Cup, more money for that one project than all other city-wide uses of the money. The implication is that more bond proceeds would benefit billionaire Larry Ellison and the America's Cup extravaganza than San Francisco residents. The ultimate taxpayer expense of such bond, including interest, will approach a half a billion dollars. One doubts such bond folly will receive a hospitable audience if voters truly understand the financial sins of their city government.

A remarkable story was published in late May concerning one of the candidates for San Francisco District Attorney and the appointed "paratrooper" D.A, George Gascon. It appears that Sharmin Bock, a one-time Alameda Country Deputy DA, met with Gascon last spring demanding he appoint her Chief Deputy District Attorney or she would probably run against him. Her alleged theory was that Gascon needed a capable person to manage the DA's office while he campaigned. Gascon claims Bock declared that if he didn't hire her for such position she would probably enter the race. According to the journalistic jackals in the Chronicle, Bock didn't deny the conversation. California Elections Code section 18205 states that a person shall not directly elicit or receive any "valuable consideration…in order to induce a person not to become or to withdraw as a candidate for public office." Violation of that law constitutes a felony. If Bock solicited Gascon for such a benefit or received such a benefit, namely, appointment as Chief Deputy District Attorney for not running against him would that violate section 18205? Perhaps. The act, if true, is serious. One would expect a genuine prosecutor to proceed. Apparently, however, for this D.A., municipal corruption isn't a favored subject, even for referral to the state Attorney General.

Finally, let's consider one of city government's newer bureaucracies, the Department of Environment. Like almost all city bureaucracies, its growth has been voracious. The annual salary ordinance for fiscal year 2010-11 shows a total of approximately 85 full-time positions and an expenditure budget of $13,537,260. Who pays for that? Almost 57 percent of that department's budget emanates from the "Solid Waste Impound Account Fees" paid to Recology by we, the ratepayers; it's yet another reason for enormous residential garbage rates, and explains the symbiotic relationship between the Department of Environment director and staff, on the one hand, and Recology executives, on the other. Let's see if the circulating initiative to require competitive bidding for garbage removal bestows a voter choice in November. Meanwhile, be of good summertime cheer.

Feedback: kopp@westsideobserver.com

July-August 2011

Nettlesome Gap Between Probable Revenue and Desired Expenditures

One of the most nettlesome aspects of City Hall folly is Board of Supervisors and mayoral treatment of the iniquitous "payroll tax." To remind longtime San Franciscans and inform all readers, the payroll tax was imposed by the Board of Supervisors and then-Mayor Joseph L. Alioto in 1970, the year before I was elected to the Board of Supervisors. The tax rate was then 1% of any business payroll totaling $250,000 or more annually. (It is now 1.5%) At the same time, the Board of Supervisors and Mayor enacted a gross receipts tax, based on a business' gross revenue. Whichever yielded more money would be owed by the affected business. In 1970 the Board of Supervisors and Mayor Alioto preferred to impose a city income tax, primarily to levy upon commuters but which also would apply to residents. They couldn't do so, because in 1963 the California Legislature and then-Governor Edmund G. (Pat) Brown enacted California Revenue and Taxation Code Section 17041.5, barring any city, county or local district from imposing an income tax. Mayor Alioto's theory, and that of his tax supporters on the Board of Supervisors, was understandable: commuters used public services such as police, fire, street sweeping, public works, but allegedly didn't pay a "proper" share of the cost of San Francisco services.

Interestingly, the City of Los Angeles emulated San Francisco. Los Angeles' payroll tax was, however, challenged in court for unequally and unconstitutionally treating businesses. Los Angeles settled the case by repealing its payroll tax and changing its gross receipts tax to collect revenue it lost from abolition of the payroll tax. There was no such challenge in San Francisco, but in 1982, I introduced a proposed ordinance eliminating the payroll tax. The incumbent mayor (I think her name was Feinstein) strongly opposed my ordinance, having advocated the payroll tax in 1970 as a supervisor. Ultimately, my ordinance was rejected by a Board of Supervisors committee. Consequently, San Francisco for 41 years has enacted an illogical tax on businesses. It remains the only city in California to do so! For every business with a payroll amounting to $250,000 or more that hires a new employee, a payroll tax on that job is collected. Instead of simply repealing the foolish payroll tax, which handicaps San Francisco competitively, and modifying the gross receipts tax to secure the lost tax revenue, the Mayor and Board of Supervisors take "baby steps" with the concomitant effect of treating businesses unequally by favoring a few new businesses and creating "winners and losers." First, under threat from highly successful Twitter to relocate from San Francisco to Brisbane and not consummate a lease of considerable space in the one-time Furniture Mart at Market and 10th Streets, the Mayor and Board passed an ordinance exempting from the payroll tax Twitter and other businesses, not throughout the city, but solely in that specified "zone" generally characterized as the mid-Market Street area.

Thus, only Twitter and any other business with an annual payroll of $1,000,000 or more which moves into such "zone" will not pay a payroll tax on new employees. Its present payroll tax will remain unchanged for the next six years. If, however, you've been a business owner of long-standing elsewhere in San Francisco, paying all your taxes, including the tax on your payroll, you receive no such exemption. Is that just or sensible? I think not.

The plot thickens. For purposes of the payroll tax, compensation includes any profit from stock options exercised by a business' employees. The tax break to Twitter exempts any stock option compensation. Now, another San Francisco business, Zynga, a new and successful corporation (Zynga and Twitter have been valued in excess of $7,000,000,000 each) has asked. "What about us? Why shouldn't we be exempted from a payroll tax on money bestowed upon our employees from stock options?" Well, with the nearly $100,000 per year geniuses at the Board, who qualify for the insolvent city pension plan after only eight years, that's easy: Supervisor Mark Farrell introduces an ordinance to exempt stock option profit from the payroll tax. (Twitter supposedly claims it would pay $50,000,000 per annum in payroll tax just for stock option compensation and in the City's 2010-11 budget, approximately $350,000,000 emanated from the total payroll tax.) Amidst the implication that Supervisor Farrell's private finance business benefits from stock options, another supervisor's ordinance was enacted to remove stock option profit from the definition of compensation for payroll tax purposes for six years to satisfy the clamor of fashionable internet corporations possessing over 100 employees which are privately (not publically) traded corporations. But City Hall isn't through.

In April, with a prospective budget deficit of $306,000,000, City Hall announced a doubling of its subsidy to businesses which hire people on welfare. The initial subsidy was $2,500 per new employee. Asserting that few businesses have used the program, city government will now subsidize a business at $5,000 per employee if it hires a San Franciscan on welfare. The Federal government originally furnished the money. Congress, however, stopped the funding in September 2010. City Hall, nevertheless, used approximately $2,100,000 from the city's General Fund to perpetuate it. Claiming not enough employers used the money, the new Mayor raises the subsidy and you wonder why the City faces a huge gap between probable revenue and desired expenditures for fiscal year 2011-12?

Finally, to complete the tale, in early May, Senate President pro-tem Darryl Steinberg of Sacramento introduces a measure to repeal the 1963 ban on local income taxes and allow counties and school districts (San Francisco is both a city and a county) to impose a local income tax with voter approval. Hold onto your wallets.

Next month, readers will know which of two competing proposed Charter Amendments to cure the indicated $650,000,000 or more unfunded pension liabilities of San Francisco taxpayers should be supported in November, and whether San Francisco law should be amended to require competitive bidding and payment of a franchise fee to San Franciscans for the multi-million-dollar privilege of collecting local garbage will grace the ballot. It's noteworthy that at the May 2011 meeting of the West of Twin Peaks Central Council attendees learned from Supervisor John Avalos that, as a candidate for Mayor, he supports such an initiative ordinance amendment and openly proclaims his backing, unlike other mayoral candidates who practice evasion.

Quentin Kopp is former San Francisco Supervisor, State Senator and Judge.

June 2011

Abject Fecklessness Rules

As all branches of government confront the discouraging spectacle of predicted budget deficits, it dismays and saddens any tax-paying San Francisco citizen and voter to observe the unending human quality of greed and secretive favoritism. On March 8 the Board of Supervisors met in a session closed to the public, purportedly to consider the City's position on pension and healthcare benefit changes for city employees. As author of the San Francisco Charter provision on Open Meetings and the 1994 revision of the Brown Act governing all meetings of California local districts, I wonder whether that secret session was legally justified. The City Attorney's office will argue that the secret session was devoted to compensation emoluments and, therefore, legally permissible under state and Charter law. No matter, wouldn't it be wonderful just once to permit taxpayer access to the status report and recommendations of the Mayor's so-called negotiators. (Wouldn't it also be useful if the secret meetings between wealthy businessman Warren Hellman, the apparent self-anointed expert on city employee pension costs and solution thereof, union representatives and unidentified others were available for public scrutiny?) Hellman, who abandoned Public Defender Jeff Adachi's Proposition B effort last fall to accomplish city employee benefit changes and his cohort won't allow Mr. Adachi (much less the public) to participate in those secret meetings. It's been reported that Hellman believes the City must save $300,000,000 – 400,000,000 annually in pension costs. That's the reason Mr. Adachi continues pro bono publico to spend time and effort promulgating an appropriate Charter amendment for the next local election, whether June or November.

Meanwhile, elected Board of Education members want an increase in their citizen compensation from a $500 per month maximum (based upon the number of meetings attended) to $25,000 per year, which they claim is approximately one-half the salary of a beginning teacher in San Francisco schools. The salary of a first-year teacher is approximately $44,000 annually. Here's a school district in which enrollment has declined from about 92,000 pupils in 1969-70 (before busing) to an estimated 55,000 students in 2010-11, and the wise governors of the diminished system, who supposedly serve as idealistic citizens and not professional politicians, think their compensation should relate to teaching salaries. But maybe they're impressed by the gift handed to Leslie Katz, a one-time, one–term Supervisor who was hired by the shifty Port of San Francisco (of which she is now a commissioner) for a short period of time at a $94,063 per year salary as a "Senior Administrative Analyst" to enable her to secure five years of "city employment" and thereby qualify after five years for the City's retirement system on a "buy-in" basis. The Katz episode followed the heretofore-undisclosed similar act by, of all people, former City Controller Edward Harrington, to provide ex-Supervisor, Assemblyman and State Secretary of State Kevin Shelley with a similar opportunity to secure state pension payments. (No Harry Ross, Nat Cooper or John Farrell is Mr. Harrington, and if you're not familiar with Messrs. Ross, Cooper and Farrell, I can only recommend you read San Francisco City government history from 1933 until 1995 to understand the historical probity of San Francisco Controllers.)

Readers may recall my comments last month about the wisdom of Governor Jerry Brown's proposed statewide abolition of redevelopment agencies and enterprise zone tax breaks. In early March, State Controller John Chaing released results of a five-week review of 18 typical redevelopment agencies in the state. Mr. Chiang's review was limited in scope, since there exists 425 (!) redevelopment agencies (RDA) in California. He first found that the RDA's practice no consensus in defining a "blighted area", which supposedly is the only reason for establishing a redevelopment area. As a naïve college student in the late 1940's, I though "blight" meant abandoned, dilapidated buildings with obvious need of replacement. The City of Coronado, however, for example, adopted a redevelopment area for every privately owned parcel in Coronado, including multi-million dollar beachfront homes. In Palm Desert, redevelopment money was used to renovate greens and bunkers at a 4.5 star golf resort. Pittsburg's RDA loaned $16,600,000 last year without interest to the city for specified projects, but the city failed to spend $15,400,000 and earned interest on those funds. Calexico's RDA loaned $1,750,000 to the city in 1993 at 6% interest, but in 2004, the city council, acting as the RDA governing board, reduced the interest rate to 1.42%. Despite an obligation to repay the loan, Calexico still owes $1,100,000 to the redevelopment fund. If redevelopment agencies are abolished, the state could rightfully secure $1,700,000,000 in tax money from these vestiges of "urban renewal", the newspeak of the 1950's and 1960's, which seized private property and resold it to politically connected, wealthy developers and continued to do so under the guise of "blight" and public benefit. That is equally true in San Francisco, which has turned over Treasure Island lock, stock and barrel to one of Willie Brown's buddies (one Darius Anderson) for development.

Amidst the unfavorable events afflicting the San Francisco Police Department and the newly-appointed District Attorney, who has been compelled by law enforcement's disregard of drug laboratory and search and seizure rules to dismiss tens of criminal cases against guilty defendants, the City's new prosecutor claims that, notwithstanding no supporting data, "Hate crimes have increased." In mid-March, three men were arrested for an alleged assault on two Mexican nationals in the Tenderloin District. The hate crime aspect originates from an allegation that the suspects were heard yelling "White Power." The alleged attack occurred outside the Nitecap Bar about midnight, November 10, 2010. Counsel for one defendant characterized it, not as a "hate crime, but as a barroom fight." As in other contemporary activity, hate crimes became a political fad during the time I was a State Senator. Instead of convicting hoodlums of assault or robbery, or murder, ethnic groups demanded legislators (federal and state) to define conduct based on "hate" as special so as to prosecute accordingly. As the Examiner pointed out on March 18, 2011, however, "Hate Crime" charges boomeranged in San Francisco. Last November, a jury acquitted a homeless man accused of a racially motivated assault. A woman charged with a "hate-crime" graffiti spree was acquitted of the hate crime allegations but convicted of plain and simple vandalism. The notion of hate crimes is a superfluous contrivance of muddle-headed thinking, which distorts the innate misconduct of vandalism or criminal threats and the brutality of murder, robbery, assault and other violent crimes. It costs taxpayers more money in prosecution, trial and consequential expenses, although it surely furnishes a novice District Attorney with a method to attract newspaper publicity on ethnicity alone.

Finally, I note the Board of Supervisors couldn't muster interest in repealing its iniquitous payroll tax in favor of a simple-to-calculate gross receipts tax by conferring on Twitter, a government-favored business, an exemption from the payroll tax. I note also the Mayor's Director of another unneeded City bureaucracy, (Office of Economic Development) rejected an understandable request by other San Francisco businesses for a similar exemption. Abject fecklessness rules at City Hall. Twitter also rules, but unfavored employers obviously do not.

Quentin Kopp is former Supervisor and State Senator.

April 2011

So Far, So Good

By Quentin Kopp

It doesn't surprise me that friends and even strangers who recognize me from past service on the Board of Supervisors or State Senate ask my opinion on Governor Jerry Brown's performance thus far. I find it reassuring. Having known the Governor since he was a much younger man (he's now a vigorous seventy-two) and having been the only San Francisco Supervisor who endorsed him before the Gubernatorial primary of June 1974 at a time in which I was a registered Democrat, and having watched him struggle through eight years as Governor (1975-1983), a failed United States Senate campaign, two unsuccessful presidential attempts, resuscitation as Oakland's Mayor and then California's Attorney General, I find his performance measured, purposeful and happily replete with vintage Jerry Brown actions such as removing cell telephones from state employees, reducing his own salary, driving a modest state automobile without his predecessor's Hollywood-scale entourage and flying economy class on Southwest Airlines. The money saved will not by itself cure the state's budgetary gap between revenue and expenditures, but such savings represent the very highest standard of taxpayer respect, no matter those critics that disdain such relevant symbols of fiscal discipline.

I note his salutary promise to eliminate the unnecessary office of Secretary of Education, which was created in 1997 by then-Governor Pete Wilson without statutory or constitutional authority, and whose budget has increased over the past decade to $1,800,000! (We elect a Superintendent of Instruction and have a Board of Education.)

I especially appreciate his stated intent to eliminate redevelopment agencies throughout California. It's about time. These post-World War II multiplying agencies, which exceed 400 in our state, were formulated under the rubric of "urban renewal" primarily to supply new, clean, safe and affordable housing. Wielding freely the fearsome power of eminent domain, redevelopment agencies throughout California have disingenuously characterized various neighborhoods as "blighted," as required by the California Health and Safety Code to establish a redevelopment area, expended taxpayer money to seize private properties at market value prices by agreement or condemnation litigation and, frequently, turned such properties over to developers for golf courses, "automobile rows," theatres, athletic facilities and fancy high-rise condominium buildings and hotels. Redevelopment has been a developer and government bureaucratic paradise. Because of statutory limitations, California courts have been unable to interfere with arbitrary redevelopment agency findings of "blight" regarding even new areas, which an unwitting person would never consider so dilapidated as to require redevelopment. The objections of those comprising the governmental/real estate complex are subjecting Governor Brown to extraordinary pressure, but I am satisfied he will surmount that pressure with aid from sympathetic legislators like Assemblyman Chris Norby of Orange County.

I am also satisfied that once budgetary vicissitudes have been conquered, Governor Brown will concentrate on the devastating problems of government employee pensions and statutory "entitlements" to certain taxpayer-funded services. Meanwhile, I intend to support at a statewide special election the maintenance of current levels of taxation, indispensable to achieving a genuinely balanced budget between predictable state revenue and authorized expenditures. Unless circumstances change wildly, I'll urge all readers to do the same. If, as forecasted, Governor Brown and the legislature agree on a special election on June 7, 2011, one can expect a plethora of local ballot measures. A special election presents opportunities for our busy City Hall denizens. One set of proposals will emanate from the Municipal Railway, aka Municipal Transportation Agency, including a potential charge of $150 annually to register vehicles, a tax of perhaps $200 per parcel and even a "transportation utility" tax of maybe $180 every year for each San Francisco household. (The registration fee is dubbed "Vehicle Mitigation Impact" fee. Don't you just love bureaucratic "newspeak"?) Each of the aforementioned taxes, however, requires a super-majority approval by two thirds of those voting. I doubt that most voters, especially motorists, will rush to raise taxes for a government which openly proclaims the need to issue more parking tickets and elevate parking meter charges for more revenue, but eternal hope manifestly controls City Hall bureaucrats so batten down the hatches.

One proposal which genuinely could generate voter enthusiasm emanates from a magnificent analysis by Budget Analyst Harvey M. Rose and may reach submission to San Francisco voters at any such special election. I predict San Franciscans will jump at it. Arising from a proposed resolution to authorize the Department of the Environment (DOE) to execute a new Landfill Disposal Agreement with the renamed NorCal Waste, now known as "Recology San Francisco "(Recology) for ten years, using Recology property in Yuba County as the City's landfill site, Mr. Rose's report to the Board of Supervisors strikes a blow for garbage rate payers in San Francisco who for nearly two decades have been subjected to ever-rising collection fees. There was a time when San Francisco boasted the lowest garbage fees in the state, governed by the Refuse Collection and Disposal Ordinance of 1932, as approved by San Francisco voters. Now, our garbage rates are among the highest. That ordinance created 97 permanent garbage collections permits. Eventually all permits were acquired for residential collection by Sunset Scavenger, while Golden Gate Disposal handled commercial property collection. Those two firms were merged into NorCal Waste, Inc., and garbage rates began to soar without competitive bidding. Now, DOE forecasts that capacity of the city's current landfill site in Livermore will be exhausted by 2015. The existing agreement with Waste Management Co. will then expire. Garbage disposal, unlike collection, can be let for competitive bidding. DOE, thus, proposes to award the disposal contract to Recology and allow Recology to include an additional rail transport fee all the way to Yolo County in future residential rate charges. That means higher garbage collection fees to San Franciscans. Mr. Rose's report discloses that DOE's operating expenditures are also incorporated into rates paid by residents and businesses for refuse collection. The annual average amount appropriated for such bureaucratic operating costs is approximately $7,000,000.

Instead of simply reporting to the Board of Supervisors on the elements of the refuse disposal bids by Recology and Waste Management Co., Inc., Mr. Rose forthrightly also recommended to the Board submission of a proposition to voters to repeal the monopolistic Refuse Collection and Disposal Ordinance of 1932 so that collection and transport of refuse would be subject to the competitive bidding process. Legislation to accomplish such repeal has been introduced. If approved by a majority of the Supervisors, and then voters, at least one other garbage collection firm besides the monopolistic Recology and the questionable Waste Management will bid. In fact one garbage industry expert predicted at least five bidders and as many as seven. I look forward to it. So should every San Franciscan.

Quentin Kopp is a former Supervisor and State Senator.

March 2011

Dignity and Decorum

As January City Hall events over the selection of a new Mayor and new District Attorney unfolded, I was reminded of a cardinal concept instilled in me in my early days as a member of the San Francisco Board of Supervisors in January 1972, following my successful initial effort for elective public office in November 1971. The principle of dignity and decorum was inculcated by other supervisors with whom I'd met individually as soon as I could, especially then-Supervisor Bob Mendelsohn. The concept was not only preached; it was practiced in the main. Dignity included not only proper dress, but proper language, as well as standing to argue points of support or opposition concerning legislation and procedural and similar motions. The President of the Board of Supervisors appropriately sat at a higher level than the other ten members who were distributed equally on each side of a horseshoe-drawn circumference. Social niceties were constantly observed.

I was surprised to observe, however, after the mayoral selection by the Board of Supervisors to, via the city's television station, a peculiar rotunda proceeding which included a prancing master of ceremonies and former Mayor, together with the new Mayor's immediate predecessor and various city governmental officials, and a Chinese Chamber of Commerce official who apparently engineered the new Mayor's access to Room 200, City Hall. Whatever the rationale of the post-selection rotunda proceeding, noticeably absent were two living past mayors, to with the Honorable Frank Jordan and the Honorable Arthur C. Agnos. (Former Mayor Dianne Feinstein understandably was occupied with Congressional obligations in Washington, D.C., although her husband was present). Ex-Mayor Jordan informs me he was not invited until the "last minute" and was, thus, unable to attend; Ex-Mayor Agnos failed to return a telephone call to ascertain whether an invitation was conferred upon him, although Mayor Jordan doubted it was because of past unfavorable public comments uttered by Agnos about the recently-departed Mayor. The rotunda proceeding was obviously planned in advance. Decorum dictates that all living ex-mayors be invited as early as possible.

At least one pleasing example of dignity was displayed by a new Supervisor, Scott Wiener, who resolutely stood on the occasion of his first remarks at the Board of Supervisors January 8, 2011 meeting after his installation. Other supervisors also stood in the aftermath of Supervisor Wiener's performance at the beginning, but soon lapsed into the previously observable practice of speaking to the President of the Board and other members (as well as the gallery) while seated. The dress of all supervisors was at least sober and fitting and gives some hope that slovenly practices of the Chris Daly-era will end.

One of the new supervisors, Mark Farrell, declared subsequently he would retain his private firm association, which was refreshing and might serve as an example for his ten other colleagues who pursue no private means of sustenance and treat their legislative service on the Board of Supervisors as a full-time responsibility, which as readers of the column know, it is not, despite the "full-time" amount of compensation bestowed upon these worthies. It's not merely surprising, but even ominous that all other supervisors eschew private enterprise in favor of a cocooned existence dependent entirely upon taxpayers and not the experience of "real-life" problems and issues. (Certainly, supervisors historically observed Charter Conflict of Interest provisions and avoided participation in matters creating any economic conflict between their interest and the public interest.) Incidentally, the afore-mentioned Supervisor Farrell's election, based on the vagaries of "ranked choice voting" (Janet Reilly won first place by 198 votes over Supervisor Farrell) is the subject of an unpublicized complaint to the California Fair Political Practices Commission and San Francisco Ethics Commission concerning alleged violation of law by former Supervisor Michaela Alioto-Pier and a committee which raised and expended funds to oppose candidate Reilly in District 2 in the amount of approximately $221,000, including a $140,000 contribution from real estate operator Tom Coates and $50,000 from arch philanthropist and socialite Dede Wilsey. California law bars a public office holder or candidate from controlling a so-called "independent expenditure" committee like the one in the issue. The major complaint by a Sacramento law firm alleges that public officeholder Alioto-Pier controlled the "independent expenditure" committee. Numerous other violations of state and local law are asserted, with the request that a maximum permissible fine be imposed against Alioto-Pier. The complaining law firm asks the Fair Political Practices Commission to file a civil lawsuit against her and other responsible parties by the end of March pursuant to relevant state law.

Speaking of legal proceedings, I've always proclaimed the integrity and objectivity of judges, Federal and State. There are few exceptions and California possesses legal authority through the Commission on Judicial Performance to administer discipline, including dismissal from judicial office of any California judge breaching the Code of Judicial Conduct. Federal law is more attenuated; the United States Constitution authorizes impeachment for lack of "good behavior" of trial and appellate Federal court judges (impeachment by the House of Representatives and trial by the Senate). That rarely occurs because of the laborious process. Unlike California judges, Federal judges are not subject to even one peremptory disqualification. Only proof of cause compels disqualification of a Federal judge, and the Federal system generally allows each judge to decide that challenge himself/herself. (Where else does an accused decide whether disqualification should occur.) Thus, it was saddening, and disquieting, to observe U.S. Court of Appeals Judge Stephen Reinhardt refuse to disqualify himself from a three judge Federal appellate court panel (supposedly chosen by the clerk of the court on a random basis) to consider the appeal by sponsors of California's Proposition 8 (the ban on same-sex marriage). Judge Reinhardt's wife is Executive Director of the American Civil Liberties Union of Southern California (ACLU). The ACLU filed a brief in 2010 urging U.S. District Judge Vaughn Walker to declare Proposition 8 unconstitutional. According to the State Bar of California's monthly magazine, Judge Reinhardt's wife was consulted in advance of the suit to overturn Proposition 8 by a lawyer for the suing parties. After Judge Walker unsurprisingly ruled for the plaintiffs in the trial court, sponsors of Proposition 8 filed an appeal, because the then-Governor and then-Attorney General simply decided not to exercise their state constitutional responsibility to do so. A motion to disqualify Judge Reinhardt was rejected by him (not by the other two members of the appellate panel). The Federal standard for a judicial disqualification is whether a reasonable person might question impartiality of the judge or if a judge or spouse possesses an interest in the case result. Would a reasonable person question Judge Reinhardt's impartiality in view of his wife's pre-trial assistance to the plaintiffs and her organization's filing a legal brief in support of the plaintiffs? I think so. Yet Judge Reinhardt believes he's impervious to that standard, thus shaking confidence in the objectivity of the eventual appellate ruling, and the U.S. Court of Appeals.

Invited to participate in the 40th anniversary of the establishment of the Metropolitan Transportation Commission, the transportation planning and Federal fund-allocating agency for the nine Bay-Area counties, I secured data on the financial effectiveness of the 28 operating transit agencies in our nine counties, including the Municipal Railway. The state measures financial effectiveness by the revenue obtained from fares compared to operational costs, also known as the "fare box recovery ratio." The state standard is 33and 1/3 percent. MTCs most recent data (fiscal year 2008-09) demonstrates that BART pays 62 percent of its operating costs from collected fares, meaning that taxpayers subsidize 38 percent of operational expenses, while the Municipal Railway obtains but 23 percent of its costs from fares. (The Bay area average is 23.78 percent); BART's service to San Francisco International Airport generates a 93 percent fare box recovery ratio, the highest in California. So, 17 years after supporters of ensuring BART service into SFO defeated opponents at the polls vindication of the righteousness of that cause seems manifest.

We're in a new year and it must be inevitable that a new year brings more incursions on languages. Maybe that's the reason for dismay after reading a December 16, 2010 comment from a National Weather Service Forecaster regarding prediction of heavy rain, i.e., "..it's going to be a significant weather event." That weatherman couldn't just forecast a heavy rain; let's wish for 2011 that "a significant weather event" doesn't become a normal spoken form of English and that rain remains rain. Meanwhile, be of good cheer and note the increasing success of the USF basketball team and their brilliant new mentor, Coach Rex Walters, from Santa Clara County, University of Kansas and the San Antonio Spurs. Join me on the Hilltop and watch the Dons show you a pace I never could have maintained in my salad days.

Quentin Kopp is a former Supervisor and State Senator.

February 2011