Article [This is the short version.]  
Westside Observer
June 2011 at www.westsideobserver.com

Laguna Honda:
Opening Pandora’s Secrecy Box: Corruption of San Francisco’s Whistleblower Program
by Patrick Monette-Shaw

Who could have predicted that Laguna Honda Hospital’s (LHH) patient gift fund scandal would eventually evolve into an investigation of San Francisco’s Whistleblower program?

Who could guess the Whistleblower program would morph from being about investigating complaints involving city services, and government waste, fraud and inefficiency, into a “risk management” program assessing the “relative materiality of possible loss to the City”?

In March 2010, former Laguna Honda Hospital (LHH) doctors Maria Rivero and Derek Kerr filed a whistleblower complaint concerning potential misuse of patient gift funds donated for patient amenities.

Had the gift fund scandal never been exposed, perhaps the commingling of public and private funds by the City, Laguna Honda Hospital, and two non-profit organizations, Laguna Honda Volunteers, Inc. and former city attorney Louise Renne’s separate Laguna Honda Foundation, may not have come to light. The second scandal is still unexplained.

Now it appears clear that the LHH patient gift fund scandal led to exposing a third scandal — the corruption of the voter-approved whistleblower program.

What started out as a model whistleblower program has become a betrayal of open government, with apparent collaborative consent of the City Attorney’s Office, the Controller’s Office, and the Ethics Commission.

Proposition C in 2003 created the whistleblower program that requires the Controller to investigate whistleblower complaints unless the Ethics Commission states in writing that an investigation would substantially impede or delay the Ethics Commission’s own investigation of whistleblower complaints.

A Sunshine complaint was filed to obtain any and all routine, but non-investigatory, correspondence between the City Controller’s Office and the Ethics Commission regarding Kerr’s and Rivero’s gift fund whistleblower complaint. When both agencies refused to provide the correspondence, the author filed a Sunshine complaint on March 6.

The Ethics Commission claimed that all of its records, including routine correspondence between the two agencies, were totally confidential.

Amazingly, Deputy City Attorney Jerry Threet combined Kerr’s and Rivero’s gift fund whistleblower complaint, which had not alleged a conflict of interest, with two other whistleblower complaints the doctors had submitted that did involve conflicts of interest. By lumping all three cases together, Threet wrongly sought to justify that the Ethics Commission had jurisdiction over all of the gift fund whistleblower complaints.

City Charter Section C3.699-13 applies only to cases involving Ethics Law, not Public Records Access Law. On April 26, Sunshine Task Force members voted unanimously that both agencies had violated sections 67.27, 67.26, and 67.25 of the Sunshine Ordinance regarding untimely response from the Controller, that withholding of records must be kept to a minimum, and that materials not exempt should be redacted rather than withheld entirely.

The City Attorney’s office apparently believes the Sunshine Ordinance does not apply to the Ethics Commission, despite the fact that there is nothing in the Ordinance that exempts any City department, board, or commission.

Garrett Chatfield, Ethics Commission investigator would neither confirm nor deny that Kerr and Rivero submitted a whistleblower complaint, though both doctors were present during the hearing. Chatfield repeatedly refused to disclose whether the investigation was on-going or closed, claiming Commission regulations pre-
vented him from all disclosure.

Task Force member David Snyder introduced a motion which passed unanimously, finding that the Ethics Commission had violated California’s Public Records Act (CPRA).

A second motion, asserting that the Ordinance expands state law by requiring that withholding be kept to a minimum, and that the Commission violated that requirement, introduced by the Task Force’s Hope Johnson, passed.

Chatfield relied on a single in-house Ethics Commission ruling that all their records are confidential.

The Task Force members were shocked.

“Since the Task Force agreed in the first motion that the Ethics Commission had not appropriately cited a CPRA exemption for withholding records, my second motion provides direction to the Ethics Commission ... for disclosure,” Ms. Johnson said.

Along the way to these two Sunshine victories, the Controller’s Whistleblower Program released its policy and procedure manual highlighting that its “risk assessment” of whistleblower complaints hinges, in part, on the criteria of evaluating risk based on “rating potential monetary loss to the City, level of staff involved [elected officials or department heads], potential reputation damage, and the use of ARRA [Recovery Act ’stimulus’] funds.”

All whistleblower complaints are rated according to “risk of loss to the City”; they are rated as high-, medium-, and low-risk to the City. Complaints and whistleblowers are seen as threats and risks, which explains why whistleblowers are not protected against retaliation. The City Controller’s whistleblower website does not disclose the use of such risk profiles-they are kept secret.

When voters passed Prop C in 2003, they were told the City Controller would investigate whistleblower complaints, not that the various City departments who may have engaged in government waste, fraud, and inefficiencies would be permitted to investigate themselves. But by December 2010, the policy and procedure manual was revised. Rather than having a semi-independent entity investigate whistleblower complaints, departments are allowed to investigate charges against their own departments. The 2010 revision of the policies also introduced the risk assessment of whistleblower complaints, involving three categories of relative risk to the City. The highest risk category, involving loss to the City of more than $50,000 or cases involving elected officials and appointed department heads, was created to limit the City’s liability, not to expose wrongdoing at the highest levels of City government.

Monette-Shaw is an accountability advocate, and a member of the California First Amendment Coalition. Feedback: monette-shaw@westsideobserver.com.

Top

_______

Copyright (c) 2011 by Committee to Save LHH.  All rights reserved.  This work may not be reposted anywhere on the Web, or reprinted in any print media, without express written permission.  E-mail the Committee to Save LHH.