supervisor campos: good morning, everyone, and welcome to the september 30, 2010, meeting of the san francisco board of supervisors will committee. i am the chair of the committee. to my right is supervisor mar. supervisor alioto-pier is en route. madam clerk, do we have announcements? >> yes, the items on the agenda today that are recommended will go before the board on tuesday october 19 unless otherwise indicated. supervisor campos: great, thank

you very much. again, thank you all for being here and for those watching this meeting on sfgtv. i also want to thank sfgtv for covering the meeting. outside the room, we have potential outside counsel, and because of that, i would like to take items seven out of order. if we could call item 7 first. >> resolution approving the retention of outside counsel to abies the city in place of the city attorney's office, on legal issues related to mayoral succession. supervisor campos: thank you very much. this resolution was introduced by supervisor chiu, and i'd like to begin by asking the chief assistant city attorney to please come forward and present on this item. mr. smith, good morning. welcome to the rules committee. >> thank you for the opportunity

to address you on this. i would like to touch on three points regarding the resolution. first, to give you an overview of the status of legal advice that the office will be providing as it relates to the mayor's election or campaign. a description of the reciprocal relationship we have with other public entity law firms and how we would envision an allocation of work. finally, our role in the process of assigning work to outside counsel. let me begin with the overview of the status of legal advice. about a month ago, the city attorney issued a public memorandum that describes the protocol of the office -- the protocol the office will follow for legal advice for matters that relate to the mayor's race while he is taking steps toward a possible candidacy for mayor. that 6.5-page memorandum, which

was dated august 27, described in some detail the proactive measure the city attorney has taken to avoid even the appearance of a conflict during the campaign. while i think the memo speaks for itself, let me briefly summarize it here. the city attorney's office will continue to advise on the vast majority of matters that we have handled historic fleet. that is the day-to-day work that our office does -- matters that we have handled historic fleet. that is most of the day-to-day work that our office provides for city gay clients -- for city clients will go virtually unchanged, but there will be two categories for matters for which you will see a difference. first, some questions may arise and relate directly to the election for mayor. for those matters with a direct relationship to the mayoral

election of a campaign, the city attorney has decided that the office will not be at fault and that the city should retain outside counsel. in this instance is, a single outside counsel will step into the shoes of the city attorney's office and advise the city on the matter as it relates directly to the mayoral election -- in those instances. the model for this approach, the charter provision regarding outside counsel for elections in which the city attorney is standing for election, and that charter provision expressly provides that where the city attorney is running for reelection, the elections commission can hire outside counsel for matters that directly involve -- those were the words used -- the election or campaign for city attorney. it further provides the elections commission should give a preference to engaging the services of another public entity law office with subject matter expertise. the conflict provisions in charter 6.1 or 6.2 that relate

to the city attorney contain a similar preference for other public and to the council. the second category of matters involve those that in directly relate to the election for mayor as opposed to directly. the august 27 memo lists some examples. one is a challenge to the city's elections system. in those instances, the city attorney's office will be involved, but the city attorney has taken steps to ensure that he will be screened off from advice on those matters. as you know, from my september 7 memorandum to the board and mayor, we have determined that issues involving mayoral succession relate directly to the mayor's election and therefore, that the city should retain an outside counsel. even though mayoral succession

at this point is still hypothetical, we recommend that you retain outside counsel now because we have been receiving increasing questions about the issue, so that the board will be prepared should the situation arise on november 2. we have recommended miguel marquez, because his office is one of the three fine law offices we have a reciprocal representation with, and he can provide his expertise to the city. he is familiar with the charter, with elections, and with conflict laws. let me just describe our reciprocal relationship and what we envision. our office has long enjoyed a reciprocal relationship with a number of other public entity law offices in which we perform work for them when they have a conflict, and they perform work for us, usually at no cost. this arrangement has proven

effective in ensuring that the city receives high-quality legal advice while at the same time minimizing the cost to the general fund or often at no cost to the general fund. we have arranged a year for three public entity law offices -- the open public city attorney's office, and san mateo county office -- to handle matters that directly involve the mayoral election campaign. again, we anticipate these will be relatively few matters. still, especially in these times, we would envision that the work would be spread among the three, rather than having one firm or one office shoulder the whole burden. there are three areas at work that we would envision that would be allocated -- campaign finance that is overseen by the ethics commission, elections matters overseen by the elections commission, and the third, mayoral succession, which

will principally involve the board of supervisors. we have worked with oakland ethics attorneys for years, who recommend they retain the oakland city attorney's office for campaign finance matters. oakland is also a particularly good fit because they have a voting system and public financing program similar in many ways to the ones that san francisco has. their lawyers are familiar with those issues. san the tail has experienced and well-regarded elections council and has offered to assist the city in elections matters in which we cannot participate, and we recommend the elections commission retains and retail county for that purpose. we recommended santa clara to handle succession matters because of miguel marquez's knowledge of the charter as well as experience, both of which could be implicated here.

as you may know, he was a deputy in our office for two years -- 2004 through 2006 -- on the government and elections team, and he was very well regarded and continues to be. we are confident that he would provide the independent, high- quality advice that we strive for and that you are used to receiving. all three of these offices are terrific offices. we are grateful to have the arrangement with them, and as i said, they all achieve the same high level of professionalism and strive for it as we do, and we will provide advice -- and will provide advice, i believe, that you are accustomed to receiving. in terms of oversight of outside counsel and arrangements for that work, while we have made recommendations, the final decision is up to the

discretion of the various city agencies. we have talked about ethics commission. we can assist in making the final arrangements with outside counsel in facilitating the transition and transfer of work, but we will not oversee the advice given by outside counsel, as described in the city attorney's august 27 memo, but if outside counsel wishes, we will provide them with attorney product information, just as any attorney would provide to another attorney taking over, but outside counsel will make their own independent judgment, will provide advice without supervision or approval or other oversight of this office once they are selected. with that, that is my presentation. if you have questions, i would be happy to answer them. supervisor campos: colleagues,

do we have any questions? supervisor alioto-pier. supervisor alioto-pier: thank you. just to clarify, i think i missed a little bit at the beginning. outside counsel for campaign finance and elections will be picked by those two specific ones, so we really only have jurisdiction over mr. marquez's appointment to deal with mayoral succession? >> if there are other appointments, we did not foresee issues at this point, but of the issues we foresee, it is just my oral -- it is just mayoral succession. supervisor alioto-pier: i would like to know how exactly this date was chosen. supervisor campos: if i may, my understanding is that this election is not marquez, but is actually of the office of santa clara county council, as i

understand. >> correct. supervisor campos: i think that the chief assistant city attorney talked about this. >> let me summarize this again. i would be happy to. as i mentioned, we have three public entity law offices that we have a reciprocal relationship with -- oakland, san retail county council, and santa clara. we envision those three areas of work that you just alluded to. we thought it best -- we do not want to burden 1 office with all the work, although we do not think it is going to be a huge amount, to allocate those three areas among the three firms. so oakland ethics attorneys we have worked closely with. i think they have already worked with our ethics commission, so they are a natural fit, and they have similar public financing

schemes. on elections, san mateo has a very strong elections division, and they offered to assist on the elections matters, so we thought that would be a good fit. santa clara also has expertise throughout these areas, but we thought that given the experience that miguel had with the charter and the office has with elections, that that office was a good pick for this. supervisor alioto-pier: i want to have a very frank conversation here today, and i'm going to try to be as diplomatic as possible. the issues that we are facing right now are very tricky to begin with because the city attorney is running for mayor himself. the point that the ethics are mayoral succession, the attorney

that will be dealing with that is clearly a very important role. it is also an important role in the there is an appearance issue that we need to be careful of. we need to make sure that when we approve the attorney to take over that particular task and taken out of the hands of city attorney, frankly, in my opinion, they are as distance from each other as possible because the city attorney is running for mayor. my concern here, and i appreciate supervisor campos' remarks about this being reset the clara county office, but you have picked a very specific person, and that very specific person comes out of dennis herrera's office. he has spent time working for

the city attorney. there is certainly a connection, and i will be honest with you -- that is a concern for me. so i need to have more information on how we got to this particular person, why we picked, of all of the 52 counties in san francisco, why we picked santa clara, why we picked one with someone who comes out of the city attorney's office. i understand he is someone who is familiar with our charter. i will not get into that, but what i will say is we have a lot of very bright, very intelligent lawyers who can come up to speed and succeed. we have other attorneys who work in san francisco who are familiar with the charter who have not worked for dennis herrera, and i think, quite frankly -- and this is something i will bring up with my colleagues -- that this is something we need to take very seriously, that the citizens of san francisco need to know that the attorneys -- the attorney

who will be looking back mayoral succession as someone who has no fall in the game at all. i'm not saying he does, but i do think there is an issue of appearance, and i think we have to be very careful with the person that we picked, so if we have a little more information on how we got there, i'm hoping there is more information than simply he is someone who has worked with the city attorney and understands the charter. the other thing i want to throw out is that san francisco is a very political place, and we actually hold our politics as a source of pride, and people are very active in politics in san francisco. it is going to be difficult to find someone who has not dabbled in it in one way or another through a contribution for working -- there are a lot of different ways that it can happen, but there are a lot of different things about mr.

marquez. if i am wrong, i need to know this, but i understand he is an active person in san francisco politics, so i want to make sure we have someone here who is as non-partisan and unbiased as possible. >> those are good points, and we considered them carefully. our office, first of all -- we think that the preference for public entity law offices should apply here, so we looked at offices we have a reciprocal relationship with kind that should be in relatively close proximity to san francisco so as not to burden with travel or other things, and to provide this service at no cost to the citizens. of the three that we have, which we believe are all well- qualified, we think back -- i have no doubt that santa clara would provide independent

advice. we have relationships with lots of different offices. we have had deputies, intense, many in our office who are in other public offices who are private firms. at this time, we have lots of dealings with these offices and the league of county counsel's office, but i can tell you that to my knowledge, dennis herrera has had no contact with me tell wi --th -- with miguel on this issue. our office consulted with elections and ethics deputies, and tried to figure out in terms of a recommended allocation what was best looking at the different offices, their expertise, and their deaths. as i said, it is ultimately a question for you, and i can tell

you, based on all line no, i have every confidence that miguel would provide the same, high-quality, independent legal advice that we would do. i think the questions, should they arise, clearly present many difficult policy and political questions. the legal questions are a little more discreet, but i do think that his office is capable and will provide that independent advice. supervisor alioto-pier: i agree with what you have said to an extent. i do think that the other part of this -- i mean, we have people calling for dennis herrera to step down while he runs for mayor. this is a very -- it is a sensitive topic, so the appearance in this particular case holds a lot of weight.

obviously, someone's legal expertise and their brilliance and the way they do their job is extremely important, and there are a lot of people who feel that, but i do think that we also have to stay -- take a step further and look at appearance, and someone who has come out of the city attorney's office, albeit who now is working for a different office -- people have some real concerns with that. i certainly did not mean to beat impugning anyone's integrity year. i am sure that mr. marquez is a wonderful lawyer and someone who is beyond reproach. i am simply talking about just plain appearances. does that come up at all when you were discussing this? especially as the city attorney did not have anything to do with these conversations? >> again, he has been out of the

office for over four years. we have former deputies in other offices and people that we work with closely, so it is not like these offices are from an appearance point of view entirely separate, but they all have obligations in their own jobs to provide independent advice. they all do it, and i can tell you, i personally felt confident that miguel would do, in supervising his office and office's work -- would provide independent, objective advice, and that ultimately is the question here. supervisor campos: if i may, i know that supervisor mar wants to make some comments or has some questions, but let me begin by providing some context. it seems to me that when it comes to the decision to hire

outside counsel, that the city attorney's office should be given credit for making that call. i think that the fact that you have proactively thought about that issue illustrates the importance that even the appearance of a conflict has in terms of how the city attorney approaches his job, so i think that the mere fact that we are having this conversation i think illustrates the sensitivity with which your office has approached this issue. and having worked in a government law office, i know that when issues of this nature, which are very specific in terms of the kinds of questions that come up -- when issues of this nature come up, you have to first think about a public law office providing this service. it makes sense that notwithstanding the dozens of counties that you have in

california, that you would first go to the county's -- counties with which you have a reciprocity agreement, which would be the three counties in northern california, and i do think that you are absolutely right that if you look at any of those three offices, we are bound to find specific connections with a number of people who work with them. i think the problem i have with this discussion is that it is so focused on one individual when in reality, we are talking about an entire office being hired. let's remember that this is an office, whether it is santa clara, san mateo, for alameda, that actually reports to an elected body, the board of supervisors. whether it is miguel marquez or someone else, it is the board of supervisors that hires the council after a national search in this case, so the idea that

somehow the focus should be on this individual, to me, does not really make sense, but since we are talking about an individual, i think that anyone who knows miguel marquez and what he has done and has accomplished knows that you are not going to find a better lawyer. whether it is the san francisco city attorney's office or anywhere else in california. it makes sense to me that you also go with someone who has some knowledge of the charter and specific provisions that are very unique to san francisco. so i understand that there may be history here that gets in the way, but i do not think that it is really there to bring mr. marquez or the santa clara county's office into that discussion. they have not sought out the appointment. they were asked not by the city attorney but by you, and i think

that your decision makes a lot of sense in my view. so i think we have to be very careful about statements that, though not intended to impugn the integrity of individuals, may be perceived as such. i think we have to be very careful about that. finally, i would say that ultimately, the issue of who becomes the interim mayor, acting mayor in the event that there is a need for succession -- that is not going to be determined by a lawyer. it will be determined by the elected officials of this city who have the final decision. the lot is what it is, and there is no question in my mind that the santa clara county council and that entire office will call it as they see it -- the law is what it is. supervisor mar: i just had a question -- did mr. herrera have

a say in the selection of oakland or san mateo county or santa clara county as counsel for those three areas? >> not in terms of the three areas. only in terms of we have had a reciprocal relationship with them for a long time, including throughout dennis herrera's tenure. in terms of a pool of other public entity law offices we have a relationship with, sure, that is extended through city attorney herrera's tenure, but not any hand whatsoever in a recommendation to the allocation of these areas that i talked about. supervisor mar: i share supervisor alioto-pier's caution in how we move forward, but as supervisor campos said, just knowing the reputation of the santa clara county council and miguel marquez in particular, his stellar background and knowledge of our charter, i

think it is a very good recommendation, and i am very supportive of your recommendation to go with the county council from santa clara for the mayoral succession for the part of this reciprocal relationship we are working with with other local public law offices. but thank you. supervisor alioto-pier: can you tell me who else is considered for this particular role and what other offices were considered? >> no firms because we were again looking to the preferences expressed in the charter for these types of situations, so we looked to the three that we have long established reciprocal working relationships with. supervisor alioto-pier: so we have not had conversations with anyone else? >> no. in part, that is because of this reciprocal relationship.

that is the way in which we provide the work at no cost. supervisor alioto-pier: i understand that and appreciate that, but i think that's -- that if we are looking for someone who is completely -- personally, i think it would have been a good idea to have talked to a number of different offices, not just the three, especially because we talk to three offices and gave each of them a job, essentially. >> just to be clear, that is our recommendation. it is not our call. we attempted to facilitate the availability of the council for these purposes, again, to minimize any impact on the general fund, but that is ultimately not our decision. supervisor alioto-pier: and i appreciate that and i cert