Group Calls on Herrera to Recuse Himself
from Pension Reform

San Franisco City Attorney Dennis Herrera. File photo by Luke Thomas.

By Luke Thomas

May 23, 2011

A group today is calling on San Francisco City Attorney Dennis Herrera to recuse himself and his office from official duties related to pension reform ballot initiatives.

Citing a “conflict of interest,” San Franciscans for Pension Reform contend Herrera cannot impartially discharge the duties of his office given his involvement in developing competing pension reform proposals and using that involvement to muster support for his mayoral bid.

Several competing pension reform proposals are being considered for placement on the upcoming November ballot, including a proposal sponsored by Public Defender Jeff Adachi.

In a news article first reported by Fog City Journal, Herrera made comments to the San Francisco Labor Council last week indicating a bias towards union interests.  Herrera is seeking the labor council’s endorsement in his bid for mayor.

“The City Attorney, of all people, should not be acting in violation of our City Charter’s provisions governing conflicts of interest,” Adachi said.

“City Attorney Herrera’s political involvement in developing and advocating for a particular pension reform measure calls into question whether he can remain impartial in carrying out the significant responsibilities of his office with regard to competing measures,” Adachi added. “The legally and ethically correct way forward is to appoint an independent, qualified outside counsel to assume the duties of the City Attorney and his office with regard to any pension reform measures on the ballot this November.”

Adachi, who sponsored last year’s failed pension reform initiative, Proposition B, suggested in an FCJ interview in April that Herrera intentionally wrote a misleading ballot question to confuse voters.  Voters generally vote against propositions they don’t understand.

Herrera spokesperson Matt Dorsey has denied Adachi’s charge.

“Jeff Adachi is trying to spin a fiction – that the City Attorney is the one that calls all the shots about what goes on the ballot, when it is completely untrue,” Dorsey said in response to FCJ’s report last week, adding that Adachi lost his battle over the final ballot language with the Ballot Simplification Committee.

While a Ballot Simplification Committee writes most of the ballot language, including titles and summaries, the City Attorney is responsible for writing ballot measure questions.

Responding today, Dorsey said, “I assume that Jeff Adachi publicly opposes murder and rape, and yet that doesn’t prevent him from representing murderers and rapists in court as the public defender. That same principle applies to the City Attorney, and Jeff knows it. Dennis Herrera has an absolute right as a candidate for office, under the City Charter and the First Amendment to the U.S. Constitution, to articulate his views on public policy. (Especially about a past measure that voters already rejected.) That right doesn’t impact Dennis Herrera’s legal duties any more than it does Jeff Adachi’s. Moreover, it’s worth noting that Herrera’s view (shared by a majority of San Francisco voters) that last year’s Proposition B was a bad idea didn’t prevent the City Attorney from successfully defending against a union-backed lawsuit to have Prop B thrown off the ballot.”

“A public policy can be both dumb and legal,” Dorsey added. “The City Attorney’s job is only to defend legal aspects. Dumb is a job for others.”

Press release from San Franciscans for Pension Reform follows:

SAN FRANCISCANS FOR PENSION REFORM CALLS ON CITY ATTORNEY DENNIS HERRERA TO RECUSE HIMSELF AND HIS OFFICE FROM OFFICIAL DUTIES RELATED TO PENSION REFORM BALLOT INITIATIVES, CITING CONFLICT OF INTEREST

Group Contends that City Attorney Dennis Herrera Cannot Impartially Discharge Duties of Office Given Involvement in Developing Competing Proposals and Using That Involvement to Muster Support for Own Mayoral Bid

SAN FRANCISCO, CA, May 23, 2011 – San Francisco City Attorney Dennis Herrera’s involvement and advocacy for a potential pension reform ballot initiative has called into question whether he can impartially discharge his official duties with regard to other pension related initiatives expected to appear on the November 2011 ballot. Citing potential violations of the San Francisco City Charter, a formal letter requesting he recuse himself and his office from matters related to pension reform measures was sent to him Monday by San Franciscans for Pension Reform, a citizen-led group seeking to put the San Francisco Pension Reform Act on this fall’s ballot.

“The City Attorney, of all people, should not be acting in violation of our City Charter’s provisions governing conflicts of interest,” said Jeff Adachi, the San Francisco Public Defender. “City Attorney Herrera’s political involvement in developing and advocating for a particular pension reform measure calls into question whether he can remain impartial in carrying out the significant responsibilities of his office with regard to competing measures,” Adachi added. “The legally and ethically correct way forward,” stated Adachi, “is to appoint an independent, qualified outside counsel to assume the duties of the City Attorney and his office with regard to any pension reform measures on the ballot this November.”

“There are obvious ethical concerns in allowing City Attorney Herrera to take political sides in the pension reform debate, and to use his position to attract votes and money for his mayoral campaign, while his office administers key elements of the ballot initiative process,” said Craig Weber, former member of the Civil Grand Jury that released two reports on pension reform. “To allow him to continue in this dual capacity is the equivalent of letting the proverbial fox guard the henhouse.”

A brief factual and legal background on City Attorney Herrera’s conflict of interest follows:

· City Attorney Herrera and his office play a key role in the ballot initiative process, as they prepare the Summary and Title and ballot question. This is a crucial role, as they draft the purportedly neutral language that most voters see before voting. The importance of this role was evident last November when the ballot materials for Proposition B, also prepared by City Attorney Herrera and his office, failed to even once mention the word “pension.”

· City Attorney Herrera has already taken sides in this years pension reform debate —

o He is part of the so-called “Hellman Working Group” that is putting together a union-supported pension reform proposal on the ballot, which would directly compete with the San Francisco Pension Reform Act and any other pension reform measure.

o On May 17, 2011, in seeking the endorsement of the San Francisco Labor Council for his own mayoral candidacy, he publicly stated, in connection with the development of a labor proposal, that he was “absolutely incredibly impressed” with labor officials and that he “feel[s] confident that we’re going to get there.” He also characterized another pension reform measure – Proposition B – as “being incredibly insulting . . . [and] denigrat[ing] the work that was done by [organized labor].”

· These actions and statements come against the legal backdrop of City Charter Section 6.102.2, which provides that the City Attorney “[d]uring his or her tenure, not contribute to, solicit contributions to, publicly endorse or urge the endorsement of or otherwise participate in a campaign for a candidate for City elective office, other than himself or herself or of a City ballot measure or be an officer, director or employee of or hold a policy-making position in an organization that makes political endorsements regarding candidates for elective office or City ballot measures.”

· In some contexts, the City Attorney has acknowledged the need to retain outside counsel to avoid a conflict of interest. The City Attorney has issued a policy document governing when – in light of his mayoral run – that he would be screened from working on particular issues. This policy document, however, is not relevant to the situation at hand – with respect to ballot initiatives, the document fails to cede any authority as it does not contemplate a scenario in which the City Attorney has personally worked to develop a particular initiative and has publicly promoted it politically and for personal reasons related to his mayoral campaign.

San Franciscans For Pension Reform is a group of San Franciscans committed to solving the City’s fiscal crisis, protecting basic services and finding a sustainable solution to address the escalating cost of the city employees’ pension system. For more information, visit www.sfpensionreform.com.

Luke Thomas

Luke Thomas is a former software developer and computer consultant who proudly hails from London, England. In 2001, Thomas took a yearlong sabbatical to travel and develop a photographic portfolio. Upon his return to the US, Thomas studied photojournalism to pursue a career in journalism. In 2004, Thomas worked for several neighborhood newspapers in San Francisco before accepting a partnership agreement with the SanFranciscoSentinel.com, a news website formerly covering local, state and national politics. In September 2006, Thomas launched FogCityJournal.com. The BBC, CNN, ABC, NBC, CBS, Fox News, New York Times, Der Spiegel, San Francisco Chronicle, San Francisco Magazine, 7x7, San Francisco Examiner, San Francisco Bay Guardian and the San Francisco Weekly, among other publications and news outlets, have published his work. Thomas is a member of the Freelance Unit of the Pacific Media Workers Guild, TNG-CWA Local 39521 and is a member of the Society of Professional Journalists.

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