San Francisco Sentinel

2/17/04

Sunshine takes on document destruction

by Savannah Blackwell

Against the advice of the office of City Attorney Dennis Herrera, members of the Sunshine Task Force have decided they do have the authority to determine whether top staffers at the Ethics Commission broke city law when they ordered the destruction of documents potentially damaging to newly-elected Mayor Gavin Newsom and his campaign treasurer, Jim Sutton.

At the Feb. 10 hearing of the task force's complaint committee, members Doug Comstock, Bruce Brugmann, Sue Cauthen and Garrett Jenkins voted unanimously to hear a complaint filed Jan. 16 by ethics staffers Oliver Luby and Kevin De Liban. The full task force will take the matter up at its Feb. 24 meeting.

`"As one of the framers of Prop. G, (the city's public records law updated at the ballot in 1999), I really thought (Herrera) went far afield on this one," Comstock told the Sentinel. `"Even if you accept the argument that the document itself is not something the commission regular keeps, it gives some insight into how consultants try to get around our tough campaign laws. You can see what the plan was going to be. This document is on fire."

Luby and De Liban's complaint boils down to this: an accusation that Ethics Executive Director Ginny Vida and Deputy Executive Director Mabel Ng tried to prevent the public from finding out that Newsom was going to skirt local laws restricting campaign contributions in order to make it easier to pay down hundreds of thousands of dollars in campaign debt.

Vida and Ng violated local and state public records laws, Luby and De Liban argue, when they forced their two subordinates to destroy an email accidentally sent on Jan. 5 to De Liban by a staffer in Sutton's office. A document attached to the e-mail and titled "San Francisco 2004 Swearing-In Committee" included a list of consultants and other vendors to be paid by this organization ­ a nonprofit fund to which donors could contribute (and indeed did give) in chunks larger than the $250 or $750 cap. (Under city law, first time donors to a mayoral campaign may contribute $750 in a runoff, but only $250 if they have already given $500 prior to the general election).

Given that the document appears to provide evidence of an intent to commit a crime, open government advocates and ethics reformers say they find it ridiculous that Deputy City Attorney Ernest Llorente advised the task force members in a Feb. 3 letter that they do not have jurisdiction over the matter. Llorente's brief says that the destroyed document is not a public record and that the chances of it having legal significance are "very low." (For his part, De Liban told the task force that the e-mail amounts to a "smoking gun.")

"What we have here is a conspiracy to break the law," Randy Knox, a local attorney who served as treasurer to Matt Gonzalez' failed bid for mayor, told the Sentinel.

"The City Attorney is speculating that it might not (have legal significance)," Terry Francke, general counsel to the California First Amendment Coalition, wrote in a memo to task force member Brugmann. "The conclusion seems to bethe doubt should be resolved in favor of destruction. This resolution can hardly be reconciled with the object of the CPRA (California Public Records Act) or the Sunshine Ordinance."

In a Jan. 20 interview with the Sentinel, Sutton described the e-mail as an incomplete accounting of bills to be paid by the inauguration committee. The inclusion of such large debts as $20,000 each to campaign consultants Heather Hiles and Joyce Newstat was a mistake, he insisted. At the end of last month, Sutton filed a final accounting of the activities of Newsom's main (Gavin Newsom for Mayor) campaign committee. That document shows the mayor committee owes roughly $556,000 ­ including $20,000 to Hiles and $20,000 to Newstat.

On Jan. 28, Newsom filed a report with the commission detailing $317,850 in contributions to the swearing-in committee. That document shows Newsom took in some hefty donations from some big players in San Francisco. Those include $20,000 from Republicans Doris and Don Fisher of the GAP fortune, $15,000 from the real estate moguls at the Shorenstein Company, $15,000 from ACS State & Local Solutions (a company San Francisco Examiner reporter Adriel Hampton identified as the winner of a $33 million contract to operate the regional FasTrak toll collection system) $15,000 from high profile Burlingame attorney Joseph Cotchett, $10,000 from the San Francisco Association of Realtors, $10,000 from city contractor Clear Channel, $5,000 from Bechtel Corp. (which supervisors kicked off the city payroll in 2002), $5,000 from real estate lobbyist Bob McCarthy and $2,500 from attorney James Collins, who represents Alex Fagan, Jr. the rookie cop who has been embroiled in the Fajitagate case).

Due to a loophole in state law, Newsom was not required to disclose the expenditures of the swearing-in committee to the ethics commission. But earlier this month, Sutton provided that information to reporters anyway. That document noticeably does not include any massive payments to consultants who worked on the campaign. According to Knox, that means that Sutton decided not to pay consultants for their work on the Newsom campaign with funds from the inauguration committee after Luby and De Liban blew the whistle.

`"Just look at the results," Knox said. "Now Heather Hiles and Joyce Newstat will be paid by Newsom's campaign committee. If this whole thing hadn't become public, I don't think those changes would have been made."

According to the city's sunshine law, if the task force finds that Vida and Ng did indeed order or force the destruction of a public record, they can be found guilty of official misconduct. And under the provisions of the city charter, an official found guilty of misconduct can lose his or her job and be barred from holding public office in the city for five years, Comstock points out.

Vida has already announced she is retiring in June. But campaign finance watchdogs are concerned Ng will become her successor. They say the recent flap over the destroyed document provides more evidence that the entire commission should be revamped.

"The agency is in complete disarray," David Pilpel, a former president of the Sunshine Task Force and a good government advocate, told the Sentinel. "There should be a measure on the November ballot to start all over again."

Late last year, Supervisor Aaron Peskin called for hearings on the current workings of the ethics commission on the heels of allegations that Sutton helped newly-elected District Attorney Kamala Harris get out of a pledge she made to stay under the campaign spending limits in that race. A date for the hearing has not been set yet.

Ethics watchdogs also argue that Sutton, who has over the past eight years become a major player in high profile political campaigns, enjoys undue influence over the commission's staff and the deputy city attorneys assigned to the agency. Highly regarded as an expert on campaign finance law and a vocal opponent of efforts to limit campaign spending, Sutton is regularly hired by the likes of Pacific Gas & Electric Co. to fend off public power initiatives as well as by heavily bankrolled candidates such as Harris and Newsom.

One of Sutton's former students at Hastings College of Law (checking title) is Chad Jacobs. After working in Sutton's law office, Jacobs got an internship at the ethics commission with Sutton's recommendation. After that, he went to work in the city attorney's office ­ assigned to the ethics commission.

Sutton has said he gets no preferential treatment from ethics or city attorney staffers. And Herrera bristled at the suggestion.

"My deputies that service the ethics commission are consummate professionals whose reputations are beyond reproach," Herrera told the Sentinel. "No one has any undue influence."

Interestingly, Herrera and Sutton share a key ally: Robert Barnes, a highly influential political consultant with ties to former mayor Willie Brown who passed away in August 2002. Barnes helped Sutton get some of his first big, city-wide campaigns -- such as those to help the institutions in Golden Gate Park reconstruct their headquarters. Barnes was also instrumental in the development of Herrera's political career. Despite the Barnes connection, Herrera does not consider himself close with Sutton, Herrera told the Sentinel.

Asked whether he agreed with Deputy Llorente's opinion, Herrera said he had to stay out of the matter. That's because his deputies are involved in both sides of the issue, he told us. Llorente is representing the task force, while Jacobs and other deputies represent the commission.

Luby and De Liban have raised concern that Llorente is acting more as the legal advisor of the commission than the task force. De Liban told the task force he found it troubling that Llorente's Feb. 3 brief mentions information that he did not get from Luby or himself and most likely got from Vida, Ng or another city attorney.

"Is the (Ethical) Wall crumbling?" De Liban asked.