May 2013 at www.WestsideObserver.com
Retaliation and Bullying of City Employees
High Costs of City Attorneys Advice
by Patrick Monette-Shaw
Spurious legal arguments creatively developed by Deputy City Attorneys to fight lawsuits against the City often with the supervisory approval of the Citys Chief Labor Attorney and probably City Attorney Dennis Herrera himself may be so misguided as to be costing the City millions of dollars, year in and year out, and may be damaging the reputation of the City Attorneys Office.
The City Attorney and the City appear to be laboring under the age-old adage that theres plenty of money for Defense (of City officials), but no money for Butter relief for plaintiffs harmed who are forced to sue the City.
Troubling developments in Dr. Derek Kerrs settlement agreement against the City for $750,000 have occurred since the Westside Observer first published details of his settlement terms in our April issue.
In addition, new information has surfaced regarding the 105 settlement agreements involving prohibited personnel practices against the City that have cost taxpayers at least $12.1 million over a six-year period, showing a disturbing trend in how the San Francisco City Attorneys Office mounts its legal defense in these cases.
The City Attorney tried to use every pretext, lie, and smear used by the Defendants in my case to deny their whistleblower retaliation. The evidence from sworn depositions and subpoenaed documents plus their pitiful contradictions sank their defense, says Dr. Derek Kerr, who was awarded monetary and non-monetary damages in his wrongful termination lawsuit settled against the City last month.
Developments in Kerrs Settlement Agreement
As the Observer reported in April, Dr. Kerrs settlement agreement included five non-monetary terms. Following the Board of Supervisors unanimous passage on second reading of Kerrs settlement agreement on March 26, the City appears to have already deliberately mucked up at least three of Kerrs non-monetary settlement deals.
First, the non-monetary provisions ordered the City to issue a formal retraction signed by Director of Public Health Barbara Garcia in the same format that former Director of Public Health Mitch Katz jointly issued with Laguna Honda Hospital (LHH) CEO Mivic Hirose in 2010, falsely accusing Drs. Kerr and Maria Rivero of not only being detractors, they publicly claimed Kerr and Rivero had made, and would continue to make, false statements publicly defaming the two doctors as dishonest and liars.
But Garcias initial retraction notice was not signed by her, and was not in the same format that had been issued by Katz, which had been a key requirement of Kerrs settlement agreement. Since the settlement agreement takes place under Court supervision, Kerr is required to report any departure from agreed-upon terms to his attorneys, in order to prevent any breach of his non-monetary settlement terms. After Garcias departure from Kerrs settlement agreement terms was reported to the City Attorney, she was required to issue a do-over, and a revised retraction notice in the correct format has now been posted on the Department of Public Healths web site.
Second, the Citys required public apology to Kerr at a meeting of the Citys Public Health Commission was improperly announced via a deficient agenda notice for the Health Commissions April 2 meeting.
On Friday, March 29, the Health Commission released its April 2 meeting agenda, which listed agenda item seven merely as an LHH Update. The item carried only a subheading, not any meaningful description required by the Sunshine Ordinance and the Brown Act. Members of the public had no way of knowing the LHH Update item would include Dr. Kerrs public apology so they may have chosen to attend the meeting, had there been a clear agenda description. Only by a stroke of accident did Kerrs associate, Dr. Rivero, discover over the weekend that the LHH Update item would include Kerrs public apology.
Once alerted, Dr. Kerrs supporters were quickly notified, and 32 speakers attended the Health Commissions April 2 meeting, all unanimously testifying in support of Kerrs contributions to Laguna Honda Hospitals hospice program. Had there been sufficient agenda notice, Kerr estimates attendance would have easily doubled.
Nobody spoke in support of Kerrs oppressors, particularly not in support of Mivic Hirose, LHHs CEO. Perhaps Hirose didnt want her lackey subordinates and supporters to witness her having to publicly apologize to Kerr. Curiously, LHHs highly-paid public information officer, Marc Slavin, was missing in action as a no-show, rather than standing beside his incompetent boss, as he typically does during public meetings.
Given the deficient agenda notice, a Sunshine Ordinance Task Force complaint has been filed by Dr. Rivero and this author regarding the Health Commissions ongoing, deficient agenda notices. Well keep you posted on how the Sunshine Task Force rules on the complaint.
Third, Kerrs settlement agreement provided that Hirose would read into the minutes of LHHs 40-member senior Leadership Forum the commendation letter co-signed by Dr. Colleen Riley, LHHs Medical Director and Dr. Steven Thompson, LHHs Chief of Staff. But Hirose instead read the letter into the minutes of LHHs much smaller Executive Committee on April 23, after which Kerr stated We are glad that we exposed misconduct. If any of you want to blow the whistle, please contact us, as he was leaving copies of an Epoch Times news article for the Executive Committee. Like Garcia, Hirose was required to make a do-over. On May 8, Hirose finally read Kerrs commendation letter into the minutes of the Leadership Forum, as Kerr and Rivero wore home-made Speak Truth to Power ID badges after being asked not to bring handouts to the Leadership Forum do-over.
Guns or Butter?
Theres little injured-party relief (Butter) when it goes to legal Defense costs (Guns).
On April 16, the San Francisco Examiner carried an article by Chris Roberts regarding the $11 million awarded in the 103 prohibited personnel practice cases, which Dr. Kerr uncovered through a public records request to the City Attorney and which this reporter performed a secondary data analysis of. Roberts reported that the 103 cases filed by City employees includes $3 million paid out in 18 racial discrimination cases and more than $1 million in 25 disability discrimination cases. [Editors Note: The $11 million Mr. Roberts reported was subsequently confirmed to be even higher, at a minimum of at least $12.1 million, due in large measure to under-reporting by the City Attorneys Office of actual settlement amounts to Dr. Kerr.]
As the pie chart in Figure 1 shows, settlements for prohibited personnel practices between 2007 and 2012 also include over $1 million awarded for general harassment of employees, at least $1.4 million for wrongful termination, $553,837 for sexual harassment cases, and over $4.8 million for various types of other prohibited personnel actions.
The $12.1 million doled out to settle what were at least 105 cases is one clue that theres a lot of bullying of City employees, cases oftentimes pure, thinly-disguised retaliation involving personnel practices already prohibited by law.
But the costs are substantially higher when City Attorney costs are added in for the time Deputy City Attorneys (DCA) spend defending the City against these lawsuits. According to a further public records request, DCAs spent a total of 43,195 hours at a total cost of $8.3 million above and beyond the nearly $12.1 million in settlement awards defending the 105 cases against the City involving prohibited personnel practices. Combined, between actual settlement awards and City Attorney time fighting the cases, were talking at least $20.4 million in preventable waste of taxpayer funds preventable precisely because they involve personnel practices long prohibited by law.
In the Doe and Raskin v. the City of San Francisco 9-1-1 dispatchers case, they were awarded $726,000, but the City spent $304,508 fighting Doe and Raskin. In the Derek Kerr, MD v. the City of San Francisco case that awarded him $750,000, the City spent $450,493 (1,740 hours) fighting Kerr!
In one of the racial discrimination cases a City employee won, he was awarded just $322,750, but new data shows the City Attorneys Office racked up 3,107 hours fighting his case, at a total cost of $526,597. In one wrongful termination case, a City employee was awarded just $15,000, but data shows the City Attorney racked up $247,772 fighting his case. In another racial discrimination case, although the Plaintiff was awarded $1.6 million, the City Attorney spent $488,022 and 2,817 hours fighting the settlement.
Disturbingly, in a lawsuit settlement involving compensation to a City employee, while the City Attorneys office reported the Plaintiff had only been awarded $109,583, according to the Board of Supervisors January 17, 2008 Rules Committee agenda, the Plaintiffs was awarded $755,000, suggesting data from two City agencies dont jive. The City Attorneys Office reported in had spent 1,855 hours, at a cost of $341,946, fighting the case.
The City Attorneys Office appears to have initially under-reported to Kerr by at least $1.47 million the amount of settlements actually awarded to 15 of the 105 plaintiffs. The data discrepancies were uncovered by comparing data provided by the City Attorneys office in November 2012 to data gleaned from the Board of Supervisors Rules Committee agendas and the full Board of Supervisors meeting minutes. The City Attorneys Office under-reporting of actual settlement awards in the 15 cases represents 12% (almost $1.5 million) of the $12.1 million reported by the Board of Supervisors.
Of the remaining 90 cases, the City Attorney reported to Kerr the correct settlement award amounts for 19 cases, but it is not yet known whether 71 of these cases were accurately reported by the City Attorney to Kerr, or if the $12.1 million will soar even higher if additional inaccurate under-reporting of actual settlement awards is uncovered.
There are many other examples of small monetary settlements to City employees for various prohibited injuries, after the City Attorney racked up large sums in costs fighting the settlements every step of the way. And thats without considering the costs of staff time spent by City department managers during lawsuit litigations, which staff time and associated costs are not tracked at the department level.
According to a retired senior human resources professional in the City who spoke recently on condition of anonymity, the City considers the costs of on-the-job bullying, retaliation against employees, and wrongful termination, to be a cost of doing business.
Weve heard this justification before, including from San Francisco General Hospital nurses who acknowledge that the City may consider the failure to fix problems at SFGH that result in preventable patient outcomes, as another cost of doing business.
Supervisors Settle 305 Lawsuits Against the City
Across the same six-year period between 2007 and 2012, a total of 305 legal settlements filed against the City for a whole host of lawsuits and other unlitigated claims beyond just prohibited personnel practice cases were heard before the Board of Supervisors Rules Committee prior to referral to the full Board for consideration and approval. The 305 cases cost taxpayers a total of $104.7 million without including the costs of City Attorney time fighting the lawsuits.
Although Dr. Kerr obtained a breakout of the types of prohibited personnel practice cases through a public records request to the City Attorneys Office, the Board of Supervisors are required only to publish notice on its agendas of the major categories of cases, whether for settlements of lawsuits, settlements of unlitigated claims, or settlements for other types of cases. So its unclear how many of the 305 settlements involved lawsuits for Muni accidents versus, say, poor healthcare delivered at City hospitals or bullying of, and retaliation against, City employees.
As the pie chart in Figure 2 shows, 214 of the cases heard by the Board of Supervisors involved settlements of lawsuits, fully 86.6% of all settlements. The Board heard another 60 cases involving unlitigated claims, 6 other claims, and the remaining 25 cases involved a variety of types of settlements.
It appears that the 105 cases involving prohibited personnel cases represent 34% of the 305 cases referred to the Board of Supervisors for settlement approval, and account for 11.5% of settlement awards. Clearly, the prohibited personnel practice cases and costs are completely preventable, if City managers would simply follow existing laws regarding prohibited personnel actions.
On February 28, 2012, ABC-TV Channel 7s KGO I-Team investigative journalists reported that one attorney said that all of the lawsuits and claims not just the personnel cases are preventable. During the six-year period it examined (a five-year period one year earlier than data reported in this article), the I-Team reported that thousands of claims and lawsuits 10,000 of which resulted in no financial payouts whatsoever totaled more than $212 million to resolve, plus at least $53 million in City Attorney time and costs to fight the 10,000 cases receiving no payout, ballooning to $265 million in total.
In response to an I-Teams question about whether the $265 million was considered just a cost of doing business, City Attorney Office spokesman Matt Dorsey callously responded saying that when you consider that San Francisco spends $6.8 billion every year to run City government, You know, it is. Its the cost of running a major city. Dorsey said most of the claims and lawsuits stemmed from the vast amount of vehicles San Francisco has on its streets, without offering any proof that the $265 million in costs were attributable mostly to MUNI.
This is the same Matt Dorsey who claimed in 2004 that the wrongful termination case of Dr. John Ulrich from Laguna Honda Hospital in 1998 over First Amendment free speech issues that resulted in a negotiated $1.5 million payout to Ulrich from the initial $4.3 million jury award, was not an instance of reprisal, and that the City Attorneys Office considers this outcome [Ulrichs award] [to be] an aberration.
Dorsey probably also figures that City employees who file lawsuits regarding prohibited personnel practices such as racial discrimination and wrongful termination to be just another aberration to be chalked up to the costs of doing business.
High-Priced City Attorneys
At the end of calendar year 2012, San Franciscos City Attorneys Office alone employed 318 staff paid a combined $38.5 million in total pay, excluding 30% to 40% fringe benefits. Of the 318, the City Attorney employed 182 attorneys across seven job classification codes, paid a combined $27.8 million in total pay. Of the 138 Civil and Criminal Attorneys, 76 of them earned over $165,000, while the remaining 44 supervising attorneys averaged $190,905 in total pay, both excluding fringe benefits. Deputy City Attorneys are paid at their highest salary step of somewhere between $82.97 and $98.44 hourly (up to $204,000 or more annually), although what they charge back to City Departments and Plaintiffs per hour is significantly higher.
Although attorneys employed by the City are paid, at most, $98.44 per hour, data provided by the City Attorney shows that in the 105 prohibited personnel practice cases, total costs of City Attorney time and expenses ranged from $165 per hour to $263 per hour, suggesting that the City Attorney bills back at an hourly rate far higher than salaries paid to lawyers employed by the City Attorney.
For his part, elected City Attorney Dennis Herrera earned $216,129 in total pay, excluding fringe benefits. Hes paid that, a taxpayer might think, to ensure his employees know what they are doing. And you might think given these attorneys high salaries, the Citys lawyers would offer expert legal advice and would know what they were doing. You might be wrong, on all counts.
Questionable Rationales for Summary Judgment
As Mr. Roberts reported in the San Francisco Examiner on April 16, two recent and prominent City employee retaliation cases include a pair of 9-1-1 [public safety] dispatchers who received $762,000 after City employees violated federal communications law, a jury found, and Dr. Kerr, who received a $750,000 settlement involving wrongful termination, after complaining about misuse of the Laguna Honda Hospital patient gift fund.
In both cases, the City Attorney attempted to convince both judges in these two cases to grant a Motion for Summary Judgment (MSJ), a legal process in which judges make a summary judgment regarding disputed facts prior to a case advancing to jury trial. In both cases, the rationales Deputy City Attorneys used to seek summary judgment calls into question their understanding of the law.
Summary judgment is appropriate when there are no genuine disputes regarding material facts in a case; material facts are those that may affect the outcome of a case. Disputes as to material facts are genuine when there is sufficient evidence for a reasonable jury to return a verdict for the party in a case who had not sought summary judgment. The party requesting summary judgment bears the initial burden of informing the Court of the basis for its MSJ, and of identifying those portions of a case that might demonstrate the absence of a genuine dispute of material fact.
Deputy City Attorneys in both cases had to have known genuine disputes of material facts did, in fact, remain and that there was no absence of genuine dispute but they still petitioned both Judges for summary judgment, possibly driving up unnecessarily the costs of litigation.
Flagrant MSJ Rationale: No City Municipal Liability
The most flagrant issue raised in the Citys MSJ in Dr. Kerrs case involved whether there was any municipal liability at all; municipal liability is determined using the Monell standards.
In the Defendants 32-page Notice of Motion for Summary Judgment against Dr. Kerr dated July 5, 2012, creative City Attorneys used four pages to claim that Kerr could not establish that the City was liable for the retaliation Kerr alleged. Defendants claimed Kerr could not assert respondeat superior liability against the City under Monell v. Department of Social Services, claiming it is well settled law that municipalities are answerable only for their own decisions; [and] are not vicariously liable for the constitutional tort of their agents. [Note: Tort refers to an act that injures a party in some way, for which the injured party may sue a wrongdoer for damages; here, San Francisco tried to assert that it is not vicariously liable if one City employee injured another employee.]
Respondeat superior Latin for let the master answer is a common-law doctrine that makes employers vicariously liable for actions of their employees, when their employees actions take place within the scope of employment. The doctrine was established in seventeenth-century England to define the legal liability of employers for the actions of their employees, and provides a better chance for injured parties to actually recover damages from injuries caused by an employers agent working within the scope of their employment.
Defendants attempted to assert there was no Monell liability in Kerrs case because Defendants Katz and Hirose did not have final policy making authority over Kerrs termination. The City contended it was entitled to summary judgment because Kerr had not established that Katz was a final policymaker, arguing instead that it was the Civil Service Commission that had final policymaking authority regarding San Francisco employment matters, not Katz or Hirose.
On August 9, 2012, Defendants filed an additional 26-page Reply Brief in Support of Motion for Summary Judgment, using another five pages to claim there was no municipal liability under Section 1983, arguing that Defendant Mitch Katzs decision-making authority was constrained by other City policies prohibiting retaliation. Defendants brazenly argued that to the extent Dr. Katz or Ms. Hirose had possibly departed from policies prohibiting retaliation, their conduct could not be attributed to the City, arguing in part that Katz could not delegate to Hirose authority he didnt possess as a final policymaker. Remind me: What rubbish is this?
In her 47-page Order ruling on the 58 pages between the Citys two MSJ briefs, Judge Wilken had to wade through issuing an eight-page analysis dissecting whether Defendants held municipal liability under Monell. Among other observations, Wilken noted the Ninth Circuit Court of Appeals has previously held that City employees to whom decision-making power is delegated, are not authorized to violate the law, and it is not sufficient to insulate a governmental entity from [Monell] liability, without more.
While Defendants argued that neither Kerr nor Rivero had subsequently applied for other vacancies on LHHs medical staff that had become available, the DCAs neglected to consider that since Katz as the appointing officer had made the decision to remove Kerr, Katz would not have been likely to rehire Kerr.
The Defendants tried to argue that a number of Civil Service Commission (CSC) rules for exempt employees constrained Dr. Katzs ability to terminate Dr. Kerr. Wilken had to remind City Attorneys that the Defendants own CSC expert witness had testified that in general, no one reviews decisions the Director of Public Health makes to lay off exempt physicians, nobody had the authority to overrule the director of [public] healths decisions, and claimed the Directors decisions cant be prohibited by law.
The Defendants own expert witness also noted that the Citys Human Resources Director does not review lay-off decisions when a complaint involves retaliation based on whistleblowing.
So Judge Wilken had to remind the Defendants City lawyers that by the Citys own admission [the CSC rules] did not constrain Dr. Katzs decisionmaking or provide for review in any way applicable to [Kerrs termination], as the City wrongly claimed.
Wilken observed that the City regulations Defendants cited do not provide for review of termination decisions, and simply required Katz to comply with the law. She further noted that Section 4.115 of San Franciscos Campaign and Government Conduct Codes that can sanction officers or employees who engage in retaliation does not provide any mechanism for review or reversal of unlawful decisions. Although Defendants suggested Kerr and Rivero could have appealed, the DCAs failed to acknowledge that there are no appeal procedures whatsoever for exempt employees who are terminated by their appointing authorities.
Wilken noted that, by its own terms, Section 4.115 only sets policies prohibiting retaliation against employees who file formal complaints or participate in formal investigations, but does not provide retaliation protections for employees who engage in using First Amendment free speech and subsequently face retaliation.
When will voters demand that San Franciscos Charter be changed to include basic First Amendment protections for City employees?
After wading through reading 105 pages of motions for and against summary judgment and Judge Wilkens Ruling, it looks to this author like the weight of evidence in Derek Kerr v. City and County of San Francisco; Mitchell Katz, Mivic Hirose, and Colleen Riley caused the Defendants case to fall apart.
Wilken ruled that Plaintiff Dr. Kerr had presented sufficient evidence of Monell municipal liability against the City, and denied Defendants MSJ to dismiss Kerrs Section 1983 claim, putting the City on the liability hook.
Citys Uncontroverted Facts Claim Washes Out
At the tail end of Defendants MSJ dated July 5, 2012, they petitioned the Court to grant summary judgment in their favor, alleging five separate times that the Defendants were not on notice of Kerrs complaints. They claimed that even if Defendants lost summary judgment, they asked the Court to issue an order specifying certain facts were uncontroverted in order to narrow the scope of issues for trial. Instead, Judge Wilken ruled otherwise.
Although Defendants raised many objections to evidence which evidence and objections Judge Wilken considered she only discussed and ruled in her Order Granting in Part and Denying in Part Motion for Summary Judgment on the admissibility of the evidence that made a difference in the case, overruling the Defendants other objections as moot irrelevant.
Although Defendants contended the City Charter removes exempt employees such as Kerr through Civil Service Commission rules, Wilken noted that even if this were true, the Charter and Administrative Code specifically exclude exempt employees from the authority of the Civil Service Commission for removal procedures, observing that exempt employees serve at the pleasure of appointing officers such as Dr. Katz, who are allowed to remove employees holding exempt positions without any further review, or an appeals process.
Just as DCAs in the 9-1-1 dispatchers case smeared Ms. Raskin (below), City Attorneys unnecessarily smeared Kerr. In its August 2012 Reply Brief, DCAs wrongly claimed It was Kerrs enduring sense of entitlement his refusal to shoulder the heavier workload that every other doctor agreed to that differentiated Kerr from his peers. This was clearly a disputed fact, which Kerrs lawyers disproved. Defendants further smeared Kerr, writing Plaintiff Derek Kerr likes to swim upstream. He had a comfortable existence at Laguna Honda Hospital, where many of his peers took divergent paths to address [needs of the patients]. Kerr refused to follow the [downstream] current. I wondered, did the City smear Kerr again, really alleging he didnt address his hospice patients needs?
The City Attorney hadnt originated the smears, he was just representing the ad hominem smears, lies, and pretexts concocted by the guilty Defendants he was representing, who were grasping at straws to extricate themselves from their bungled, retaliatory hit-job against Kerr.
As a layperson having read many
legal filings, this author was shocked that Defendants resorted
to using smears in their legal briefs, smears clearly irrelevant
and disproven by factual evidence:
Given her rejection of many of the City Attorneys dubious rationales seeking summary judgment in Kerrs case, Wilken ordered that a previous ruling be maintained to begin a ten-day jury trial on November 13, 2012.
It may have only been then that the City began to negotiate in earnest to develop settlement terms with Kerr, perhaps fearing a jury trial might further unravel the Citys nincompoop defense of Katz, Hirose, and Dr. Colleen Riley, and risking greater monetary settlement awards to Kerr.
Specious MSJ Smears of 911 Dispatchers
In the 9-1-1 dispatchers
lawsuit, Jane Doe and Anne Raskin v. City and County of San
Francisco, the Deputy City Attorney (DCA) claimed there were
no disputes involving material fact, and requested that eight
claims for relief be granted in its
29-page Motion for Summary Judgment. Defendants also smeared Plaintiffs in its MSJ, claiming Plaintiff Ann Raskin lived a charmed life at DEM prior to the e-mail incident, a snide statement wholly out of place in a legal filing.
U.S. District Court Judge Thelton
Henderson granted only one of the City
Attorneys dubious claims for summary judgment, and denied
the Citys other seven claims, including:
As with Dr. Kerrs case, the City attempted to claim that the 9-1-1 dispatcher lawsuit had not identified specific violations of law by citing a particular statute, rule, or regulation that prohibited an illegal activity that was violated by the conduct complained of. The City claimed that for a complaint to be protected and upheld, the complaint must specify violations of law by citing a relevant statute that was violated.
The Truth [of Retaliaton] Was True
By denying seven of the Defendants eight claims for summary judgment, Henderson effectively moved Jane Doe and Anne Raskin v. City and County of San Francisco to trial. At trial, the jury ruled in Doe and Raskins favor, and they were eventually awarded the $762,000 settlement, suggesting that the City City Attorney Dennis Herrera and his legal defense teams often barks up the wrong tree, tossing out flaky defense strategies hoping to see what will stick on the wall.
To do that, Herreras team not only resorted to using ad hominem smears against Plaintiffs Kerr and Doe and Raskin, they used wrongful claims and disingenuous arguments, and ended up acting just like their clients the Defendants.
Such strategies drive up the time and costs of litigation, costing taxpayers millions of dollars, and forcing opposing counsel and judges to wade through the muck of what is, essentially, garbage proffered as the Citys legal defense. Desperate to prevail, the City Attorney continues doing so, anyway.
The City Attorney used every trick in the book but the evidence of Laguna Honda Hospitals wrongdoing was so overwhelming, that they were forced to settle, notes Dr. Rivero. It took us three years to convince the City Attorney and the Court that the truth was true, she laments.
If Kerrs and the 9-1-1 dispatchers lawsuits prove nothing else, the two cases demonstrate that all too often the City Attorney defends City officials against City employees and the very citizens paying the miscreant officials bloated salaries.
After all, between the settlement awards and the City Attorneys costs fighting the prohibited personnel practices, were talking about a minimum of at least $20 million that was a completely preventable, unnecessary expense, had careless City managers who bullied City employees simply followed existing personnel law.
Its long past time to confront
the City Attorneys spurious legal advice, which appears
to be costing taxpayers millions that could be better spent on
other City needs.
Monette-Shaw is an open-government accountability
advocate, a patient advocate, and a member of Californias
First Amendment Coalition. Feedback: email@example.com.
A Comical Postscript
In a comical twist of irony, City Attorney spokesman Matt Dorsey rises again.
On May 16, the San Francisco Examiner reported that the day before a former internal affairs attorney for the San Francisco Police Department Kelly OHaire filed a wrongful termination and whistleblower lawsuit in San Francisco Superior Court against Police Chief Greg Shur, against the Police Department, and presumably, against the City.
OHaires job involved investigating and prosecuting misconduct claims against San Francisco Police Department members, and bringing misconduct cases before the Police Commission. OHaire alleges she was fired in retaliation for having investigated Greg Shur when he was a high-ranking official before being appointed Police Chief. She sought Suhrs termination in 2009 for an alleged pattern of misconduct and policy violations. Following Suhrs appointment as Police Chief in April 2011, OHaire was terminated within a month.
Dorsey is comical: On May 15, the Marin Independent Journal carried an article by Gary Klein reporting on OHaires lawsuit. Dorsey, City Attorney Dennis Herreras spokesman, asserts OHaires lawsuit lacks merit. Dorsey was quoted as saying The City Attorney is going to vigorously defend the Police Department, and were going to do everything we can to protect taxpayer dollars.
This is the same City Attorneys Office that settled the 105 prohibited personnel practice cases for the princely sum of $12.1 million, and the same City Attorney who spent $8.3 million fighting the 105 cases, for a combined waste of $20.4 million in taxpayer funds. And thats not including the $1.3 million of taxpayer funds racked up in City Attorney time wasted during the City Attorneys inept proceedings on behalf of Mayor Ed Lee to oust Sheriff Ross Mirkarimi for alleged official misconduct. After wasting fully $22 million, Dorsey now wants us to believe the City Attorney is trying to protect taxpayer dollars?
Supervisor Jane Kim noted during the Boards vote to remove Mirkarimi that the charges against the Sheriff developed by the City Attorney on behalf of the Mayor did not rise to the City Charters definition of official misconduct, and that the Ethics Commission had not found that Mirkarimi had used his official duties to commit wrongdoing. Kim voted against removing the Sheriff, indicating that a clear, articulable test to remove public officials had not been established. To that extent, the persecution of Mirkarimi was a complete waste of $1.3 million in City Attorney time, at taxpayer expense, which appears to have escaped Mr. Dorsey.
Chances are that as OHaires case plods through the court system, the City Attorney will likely mount spurious reasons for a motion for summary judgment. But OHaire will likely prevail and will probably win a significant settlement amount, while the City Attorney wastes more taxpayer funds spending thousands of hours fighting OHaire.
After all, this is San Francisco, where whistleblowing City
employees who expose wrongdoing of high-level members of the City
Hall Family for example exposing the City Familys
former Director of Public Health Mitch Katz, former Housing Authority
Director Henry Alvarez, and now Police Chief Greg Suhr
face 100% retaliation, bullying, and wrongful termination. Is
the 100% retaliation rate a new San Francisco value?
The print edition of this Westside Observer article was a condensed version; this expanded version providing additional details of the spurious rationales the City Attorney used seeking summary judgment, a status update on Kerrs non-monetary settlements, and data regarding costs of prohibited personnel practices is available on-line at www.westsideobserver.com.