By Max Pringle, SAN FRANCISCO PUBLIC PRESS
January 13, 2021
This article is part of a project examining ways to use the ballot to hold local government accountable. It was supported by the Solutions Journalism Network’s Renewing Democracy program.
Last May, not long after a scandal at the Department of Public Works rocked San Francisco City Hall, Supervisor Gordon Mar revisited an idea first floated here in 2016: Create a local anti-corruption agency modeled on high-profile efforts such as one New York City launched decades ago.
Mar’s proposal would have amended San Francisco’s City Charter to create an independent, elected watchdog. The office of the public advocate could issue subpoenas, conduct investigations and propose legislation.
His plan needed the approval of the Board of Supervisors to be added to the November 2020 ballot. It fell short by one vote, depriving voters of the chance to weigh in.
Over the past decade, city officials have racked up an impressive rap sheet. FBI probes have uncovered activities leading to charges of fraud, money laundering, pay-to-play contracting schemes and campaign finance violations.
In the latest installment of criminal allegations — just weeks after the local election that might have legislated the watchdog into being — Harlan Kelly, the head of the city’s Public Utilities Commission, was arrested. Prosecutors on Nov. 30 charged him with accepting bribes, including paid vacations, in exchange for providing inside information on city contracts to permit expediter Walter Wong. Two days later, Kelly’s wife, City Administrator Naomi Kelly, who has not been charged with wrongdoing, took a six-week leave of absence under suspicion about her part in the scheme. The San Francisco Chronicle reported Tuesday that she planned to resign.
[See previous coverage: “With Corruption on the Ballot, San Francisco Could Learn Oversight From Other Scandal-Plagued Cities”]
Mar’s hope last spring was that a wave of urgency around good-government reforms would lead colleagues to back a public advocate as one way to help restore trust in city government. But it was far from a new idea. It benefitted from precedents set in cities across the country that were similarly wracked by graft and mismanagement, including Detroit, Chicago and New York.
Why did Mar’s proposal fall short in July? Months after the coronavirus pandemic converted in-person meetings of the Board of Supervisors to virtual hearings, it was harder for him to connect with peers. That week he was counting votes, and by the night of the meeting, he knew he’d lose by one supervisor. The mayor also declined to endorse it.
“It was a lost opportunity,” said David Campos, former supervisor and current chief of staff for District Attorney Chesa Boudin. “If San Franciscans had been given the chance to vote on it, I think they would have supported it.” Campos was the author of a similar ballot measure, Measure H, in 2016. Voters rejected it, with 52% voting no.
But a lot can happen in four years, as evidenced by the Department of Public Works scandal, which broke in January 2020. An FBI probe led to charges against Muhammad Nuru, the department’s director, and three city staffers accused of various illegal schemes, including giving associates preferential treatment in contracting in exchange for lavish gifts like expensive Swiss watches and holidays abroad.
Among other charges, Nuru and associates were alleged to have tipped off restaurateur Nick Bovis, owner of Lefty O’Doul’s and the Gold Dust Lounge, with inside information about city contracts.
Nuru and Bovis were charged with wire fraud and bribery for allegedly conspiring to pay off a San Francisco airport commissioner with $5,000 and free travel for help getting Bovis a contract to run a restaurant at San Francisco International Airport. The bribe was never paid, but such an attempt would violate city competitive bidding rules.
Campos said opponents campaigned hard to defeat the public advocate idea in 2016.
“Millions of dollars were spent against it,” he said. “We predicted that unless something was done that there would be more malfeasance that would take place. And I’m sorry to say that in the end, we were proven right.”
Other supporters said having an elected position, one not appointed by either the mayor or the supervisors, would lend credibility to an independent investigator’s office.
“A public advocate position that is similar to New York’s could be very valuable in other cities like San Francisco,” said Dan Schnur, who teaches politics at the University of Southern California and the University of California, Berkeley. “There’s clearly a need for some type of official oversight function in local government and giving that responsibility to an elected official could have significant benefits.”
One reform did make it to the ballot on Election Day 2020: Proposition B. The measure, which was approved with 61% of the vote, will break up the Department of Public Works and create new oversight mechanisms in the wake of the scandal.
Opponents of the failed 2020 public advocate measure said it would have created a redundant agency. The City Controller’s Office, Ethics Commission, District Attorney’s Office and City Attorney’s Office all have a role in investigating corruption. They also said such an office could attract undedicated candidates looking merely to launch political careers, as has happened in other cities.
“If the Ethics Commission is broken, then let’s fix it,” Supervisor Aaron Peskin told theExaminer in July when supervisors voted down the public advocate proposal. “But creating a new department when we have a $1.7 billion deficit and we are trying to take care of people who need to eat just seems nuts to me.”
Other cities have demonstrated the power and the limitations of independent watchdog positions. When those offices have the authority to investigate elected officials, along with subpoena power and a large enough budget to support an independent staff, they have often aggressively pursued corruption allegations. But departments without enforcement authority can become little more than bully pulpits serving as a springboard to higher office for ambitious politicians.
Detroit: Giving watchdogs teeth
In 2011, federal prosecutors indicted Detroit’s two-term mayor Kwame Kilpatrick on charges of setting up a pay-to-play scheme in City Hall. He was the latest in a string of Motor City leadersaccused of malfeasance. Kilpatrick was sentenced to 28 years in prison after a federal investigation showed he had taken bribes, rigged bids and awarded $127 million in deals to a construction contractor friend.
Since the 1970s, Detroit has had an ombudsman’s office, whose role was to investigate complaints of inefficiency and charges of incompetence by public officials. But its powers have been limited.
While Kilpatrick was in office, “I don’t know anything that the ombudsman did,” Wayne State University law professor John Mogk told Bloomberg News CityLab in September 2019.
A year after Kilpatrick’s indictment, Detroit voters passed sweeping reforms to the City Charter, including the creation of an office of inspector general to investigate wrongdoing by public officials. The reforms also required contractors to reveal all campaign contributions to any election going back at least four yearsand adopting district elections for City Council.
The inspector general has greater investigatory powers than the ombudsman did. In 2019, the appointedinspector general, Ellen Ha,found that mayor Mike Duggan had given preferential treatment to Make Your Date, a prenatal health organization partnering with the city to fight infant mortality. The probe found that Duggan helped direct more than $350,000 to the group without a competitive selection process, and that he ordered city staffers to raise money for the organization, the leader of which he had romantic ties.
Chicago: more eyes on corrupt contracting
In 1989, Chicago also created an office of inspector general, appointed by the mayor and approved by the City Council. The nonpartisan office has the power to conduct investigations, call hearings and issue subpoenas. All bids and proposals for city contracts are subject to inspector general approval.
The office recently gained more responsibility. Mayor Lori Lightfoot, who came to office in 2019 following a slew of corruption scandals, issued an executive order granting the inspector general the power to audit City Council committees. In Chicago, aldermen (the local word for council members) traditionally had final say over development and zoning decisions in their districts. That created fertile ground for some aldermen to direct contracts to those willing to pay bribes. Lightfoot undid that prerogative soon after taking office.
New York: a launching pad for higher office
New York City offers an example of the limitations that can come with creating an office tasked with investigating wrongdoing.
The City Council there created the office of public advocate in 1993 to serve as a citywide ombudsman. But the office has no enforcement authority.
“A public advocate is a great idea, if they have power,” said Carmen Balber, executive director of Consumer Watchdog, a Los Angeles-based consumer and taxpayer rights organization. “The strength of the public advocate in New York City is the bully pulpit.”
She added: “It’s an excellent way to create someone who is solely answerable to the voters.”
But Balber echoed other critics of New York’s experience, noting that ambitious politicians have treated the public advocate’s perch as a steppingstone in their quests for higher office. Mayor Bill de Blasio and New York State Attorney General Letitia James have both held the office.
“To create a truly effective public advocate, it would need an independent budget, things like subpoena power and a staff that allows it to accomplish the goals it sets for itself,” Balber said.
Mar’s San Francisco 2020 proposal, like Proposition H in 2016, included investigatory and subpoena power. But as in 2016, concerns over the cost of setting up and running such a specialized oversight office worked against the idea last year, especially after the COVID-19 lockdown hit the city’s finances hard. The proposal would have created four new positions, costing the city between $3 million and $4 million.
In 2016 SPUR, a San Francisco planning and urban research think tank, opposed Proposition H, citing cost. “This measure would provide no new services for San Franciscans,” said SPUR’s ballot guide that year. “The $600,000 to $3.5 million in immediate staffing costs to create the office could be much better spent on other activities.”
Importance of independence
San Francisco has several boards and commissions performing oversight work, such as the city services auditor. They are mostly limited to producing reports and performance evaluations. Proponents of a public advocate say that because many of these offices fall under the mayor or city administrator, they lack independence. A degree of autonomy is important to the success of watchdog agencies, Balber said.
It may be impossible to completely root out corruption in big cities, she said, but that is no reason not to try. “There’s no way to get around the fact that Public Works is a large entity in a city the size of San Francisco,” she said. “It’s important to provide a check and balance — someone who is looking over the shoulder of that entity to say, ‘this is kosher, this is not.’”
Good government organizations contend that elected officials have to do a better job representing the interests of the people who elect them. Nuru and other city officials caught up in corruption scandals answer to the city administrator who hires them and to the mayor who appoints the city administrator — as well as to the Board of Supervisors, which controls the agencies’ budgets.
“They don’t operate in a vacuum,” said Eli Zigas of SPUR. “There are higher levels of authority, including some that are responsible to voters.”
“Another way voters could indicate that they don’t like what’s going on is to have that influence in how they vote for mayor,” Zigas added. “Similarly, the supervisors could threaten to withhold funding from the department. They could hold hearings and they could pass legislation setting targets and otherwise.”
Without reform, the type of alleged self-dealing on display in the Department of Public Works’ bribery scandal has become entrenched in San Francisco, said Supervisor Matt Haney, who argued that it will take revisiting proposals, like a public advocate’s office, and measures like 2020’s Proposition B, to undo a corrupt political culture.
“It’s going to keep on coming back, and coming back, and coming back because of how brazen those at the highest levels of San Francisco politics and government have been with this sort of behavior,” he said. “It has been taking place for a long time.”
Haney added: “People look around San Francisco and wonder why, in a city so wealthy, we can’t seem to get some of the basics right. It’s connected to the fact that people who should be doing their jobs are actually more looking out for themselves.”