Newsom's rash purge creates legal mess

|
(0)

442axe.jpg
Newsom's decision to ask for the resignations of hundreds of city employees and appointed commissioners was a impetuous one made with no legal advice, his press secretary has admitted to the Guardian. And now, the strange and sweeping gesture is raising troubling legal questions and potential long term problems for many city employees.
"The mayor did just make the decision more or less on the spot," Newsom spokesperson Nathan Ballard told the Guardian yesterday, referring to the Sept. 7 meeting with a couple dozen senior staffers. "It was in the context of an inspirational speech to the staff."
Ballard said the big moment caused the entire room to applaud, a response that was definitely muted by Sept. 10 when Newsom sent resignation-demand letters out and informed all department heads at a regular weekly meeting. Then came the confusion, the return of some letters that amount to an immediate resignation, and the close work with the City Attorneys Office (whose representatives say they can't speak on the record about this attorney-client matter) to fix the mess.

"If there are any resignation letters that are sloppily worded, we'll work with them," Ballard said, noting that more than a dozen letters had to be returned so the sender could make clear that it was simply an offer to resign, subject to mayoral acceptance, on January 7, 2008. "They really should be conditional on the mayor's acceptance."
But the city's administrative code makes no mention of the mayor's need or right to accept resignation letters, spelling out only how they are effective upon receipt or under whatever terms the letters spell out. And the mayor has no right to remove city commissioners and board members serving fixed terms, except for official misconduct.
"We've worked with the city attorneys for hours and hours on this," Ballard said. "Nobody is going to resign unless they intend to resign."
Yet when asked whether Newsom sought legal advice before calling for the resignations, Ballard said that advice was sought "simultaneously." When pressed, he admitted that Newsom had not contacted the City Attorney's Office before announcing his plan, nor had he sought any outside legal advice.
Sup. Chris Daly, who on Sept. 17 formally asked the City Attorney's Office for advice on the matter, said the move one a reckless one that jeopardized the livelihoods of loyal city workers and was a needless waste of city resources.
"I'm concerned that there may be a legal mess here," Daly said. "I've done some unorthodox political maneuvers, but every time there were city attorneys circling."
Based on his review of the resignations, he thinks that about 25 officials maybe have resigned without intending to, possibly endangering their seniority, benefits, or contractual privileges. "I am concerned that several resignations may have inadvertently been made effective immediately, including that of Acting Human Resources Director James Horan," Daly wrote to City Attorney Dennis Herrera.
Horan's letter read simply: "I hereby tender my resignation. It has been my pleasure to serve as the Acting Human Resources Director and thank you for the opportunity to work with the truly talented and dedicated employees of the Department of Human Resources."
Daly even invoked the city's most notorious case of an employee who unsuccessfully tried to take back a resignation. "Dan White was not able to rewrite his resignation," Daly said, referring to the city supervisor who assassinated Mayor George Moscone and Sup. Harvey Milk after the former didn't let White revoke his letter of resignation.
In fact, the city administrative code was rewritten in the wake of that terribly tragedy, making it clear that “resignations shall become effective, unless otherwise state in the written resignation, at the time at which they are received.”
A Guardian review of more than 200 letters received by the mayor office shows many city officials nearly begging keep their jobs, others terse, others choosing careful language to protect their rights and jobs, others defiant, others groveling with praise for Newsom.
MTA chair James McCray informed Newsom that he was overstepping his authority in seeking MTA director Nathaniel Ford’s resignation because the charter indicates only the MTA board could remove the director and said that he didn't expect Ford to resign. “While we understand your desire for bold change in the coming term, the full board has not had time to consider your request and its impact, not only on Mr. Ford and his family, but, more importantly, on the SFMTA and all the users of the SFMTA’s services.”
Yet Ford did offer his resignation anyway, "as a show of support for your leadership and vision for San Francisco." But he also subtly reminded Newsom of his contract with the city, which includes a large severance package, writing that his resignation "is not voluntary and if accepted by you will be interpreted as a Termination of Convenience pursuant to Section 10(a) of my Employment Agreement."
Some appointees were openly defiant of the request. “In reply to your request for all Commissioners to resign from our appointments, I am respectively declining to do so for the following reasons,” wrote San Francisco Airport Commission member Caryl Ito, going on to note that her term is not yet expired and that she believes the system of terms is important for continuity of operations.
Many of the letters speak volumes about the many troubling legal questions and issued raised by the purge, from the fact that many officials answer to commissions and not just the mayor to the many ways that these official letters might be used.
"This resignation is conditioned upon your acceptance and is submitted specifically for your consideration and exercise and is not extended for consideration or exercise by temporary, acting or successor mayor or any individual," was the legalistic language used by Charlotte Mailliard Shultz, the city's chief of protocol and a member of the War Memorial Board of Trustees.
In fact, most of her fellow board members included similar language, just as the letters of many of the Mayor’s Office inner circle, including senior advisor Mike Farrah and chief of staff Phil Ginsburg, included almost identical language, indicating that insiders coordinated their approach while many other appointees were left to fend for themselves.
Public Utility Commission chief Susan Leal, who has a multi-year employment contract with severance package, didn't actually offer to resign in her letter, instead reminding Newsom that "I understand that I continue to serve at your pleasure and that of your appointed Commission."
Similarly, Elizabeth Murray, managing director of the San Francisco War Memorial and Performing Arts Center, addressed her letter to the War Memorial Board of Trustees president (CCed to Newsom) and offered to resign, "such resignation to become effective should the Board of Trustees determine to accept my offer."
Still others seemed to use the letter in ingratiate themselves to the mayor and express their abiding loyalty, including Arts Commission PJ Johnston. “I believe it is appropriate and, frankly, imperative that the mayor of San Francisco retain all key tools needed to implement his or her policy vision for the city, and no tool is more essential than the ability to exercise one’s appointing authority. Therefore, I consider this letter a reiteration of my original resignation [one he offered at the start of Newsom’s term that wasn’t accepted]. It’s not effective January 7, 2008…it’s always been in effect.”
Entertainment Commissioner Bruce Lorin even offered Newsom his ideological support, writing, “I am a believer in the strong mayor type of city government especially with the make up of the Board of Supervisors today.”
Recreation and Parks Commission president Larry Martin took a similar tack, writing, “As you know from our discussion at the Labor meeting this morning, I have always been a strong supporter of yours and will continue to be an advocate for the goals of your administration in the future.”
Also illustrating the backroom dealing that has accompanied the purge was Michael Theriault, a member of the Building Inspection Commission and the secretary-treasurer of the San Francisco Building and Construction Trades Council. He wrote, “Having heard your assurances this morning to Tim Paulson, Executive Director of the San Francisco Labor Council, that we would see more appointments to board and commissions from the labor movement in your next term, and having received assurances from Phil Ginsburg as to my independence of action as a commissioner, I hereby offer you my resignation from the Building Inspection Commission, effective only on your acceptance.”
Such concerns have been widely discussed since Newsom’s purge began, with some arguing that it was a power play designed to intimidate appointments or a ploy to garner campaign contributions – both of which Ballard said (without elaboration) the mayor “categorically denies.”
At press time, letters from many key appointees were missing, including Housing Authority head Gregg Fortner and members of the Police Commission. Ballard said more than 90 percent of those requested to do so have resigned. As to what the administration intends to do about holdout cases, Ballard said, “The mayor will review each one on a case by case basis.”

Also from this author