The mayor's leaked memo puts the city treasury at risk, possibly violates the law, and promotes his gubernatorial ambitions at the expense of sound city policy
Click here to read Sarah Phelan's story in this week's Guardian titled, Restoring the sanctuary.
EDITORIAL At the heart of the conflict over Sup. David Campos' recent sanctuary legislation is a basic issue of civil rights: Should a young San Francisco immigrant arrested by the local police be treated as innocent until proven guilty or should that person face deportation, even if the arrest is bogus and no formal charges are ever filed?
All Campos wants to do is establish that an arrest is not a conviction and, as anyone who works with youth or immigrants in the city knows, thousands of innocent people are picked up by the police every year, sometimes because of simple mistakes, more often because the local cops have a propensity to arrest young people of color in disproportionate numbers.
And under current city policy, anyone arrested on felony charges who lacks proper documentation can be turned over to federal immigration authorities. And even if the suspect turns out to be innocent, he or she can be deported. That's not fair, not consistent with the city's sanctuary policy and, according to the ACLU, not legally defensible.
But Mayor Gavin Newsom, not content with arguing the merits of the legislation (a battle he would clearly lose), has taken the remarkable step of leaking to the San Francisco Chronicle a confidential opinion from City Attorney Dennis Herrera that warned of the potential legal downside of the Campos measure. The Chron quickly turned the memo into a front-page story, proclaiming that the legislation "would violate federal law and could doom [the city's] entire sanctuary city policy." Newsom was quick to chime in: "The supervisors are putting at risk the entire Sanctuary City Ordinance, which we've worked hard to protect," the Chron quoted the mayor as saying.
For starters, that's blowing the situation way, way out of proportion. Herrera's office writes these memos all the time. Any piece of legislation that might have legal ramifications gets this sort of review and in many, many cases, the supervisors and the mayor simply go ahead anyway. Two of Newsom's biggest initiatives same-sex marriage and the city's health care law involved serious legal issues, and it's almost certain that Herrera formally warned the supervisors and the mayor that going ahead could lead to lawsuits. Newsom, properly, proceeded with the legally risky moves.
And while we haven't seen Herrera's memo, people familiar with it agree that it never said that the existing sanctuary law is at any real risk. Yes, some anti-immigrant group could sue the city over Campos's bill. And yes, some court could conceivable invalidate not only this law but a lot of other city immigration policies. But nobody has ever successfully sued to overturn the current law, which has been in effect for almost 20 years.
Of course, there are, and will be, legal issues with the Campos bill. But now that the mayor has leaked the confidential memo laying out those concerns, any right-wing nut who does want to sue will have the ammunition prepared. And Newsom's action makes the prospect of a suit one that will cost the city a lot of money far more likely.
In other words, the mayor has put his own city's treasury at risk, possibly violating city law in the process, in order to undermine a piece of legislation that he doesn't support. This has all the hallmarks of the mayor's new gubernatorial campaign team, led by consultant Garry South, who is known for his vicious, scorched-earth battles. South, we suspect, advised Newsom that appearing soft on illegal immigrants would play poorly in the more conservative parts of the state and that a tactic that puts his own city at risk was an appropriate way to respond.
And Newsom, to his immense discredit, went along.
This is a big deal, a sign that the mayor is putting his higher ambitions far ahead of his duty to San Francisco. "In my eight years in office, I saw hundreds of these memos," former Board President Aaron Peskin told us. "I saw plenty of material that I could have leaked that would have been useful to me politically. But all of us on the board, across the political spectrum, understood that you just don't do that. Because if you do, it tears the government apart."
We're journalists here, and we never support government secrecy. We have consistently defended reporters who publish leaked documents (and would do so here, too, despite our criticism of the way the Chron played this story). And there are times, many times, when it's best for city attorneys and the officials who get their advice to let the public know what those memos say. We support whistleblowers and principled city employees and officials who defy the rules of secrecy and tell the public what's really going on.
But Newsom was serving no grand public interest purpose here. He was simply using confidential legal advice to attempt to thwart a political opponent, for the purpose of promoting his own ambitions. That's alarming. If Newsom wants to be taken seriously as a candidate for governor, he needs to demonstrate that he can stand up to his political advisors and so far, he's failing, miserably.
P.S.: Sup. John Avalos has asked the Ethics Commission and the city attorney to investigate the leak, which is fine but this shouldn't become an attack on the right of the press to publish confidential documents. None of the investigators should try to question the Chron reporters to seek the source of the leak particularly since Newsom has as much as admitted, to the Guardian's Sarah Phelan, that he was the one who authorized his staff to hand out the memo. *
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