S.F. Ticketing Program Could Open Costly Pandora's Box For City

Joe Eskenazi
Former SPOT director Pat Tobin lectures a mover during a hearing. Contractors claim such hearings denied them their right to due process -- and members of the Police Commission worry this could be true.
Wednesday night's hearing regarding a controversial police ticketing program was not nearly so crowded as the last time this matter came before the Police Commission; perhaps last night folks were gawking instead at the half-naked male and female dancers gyrating at a loud Carnival show on the City Hall steps.

Over the din, however, a number of questions were asked about the Safe Paths of Travel program; depending upon the answers, the city could conceivably be out millions of dollars.   

SF Weekly wrote about the SPOT program all the way back in October of last year. A Municipal Transportation Authority program staffed by police earning overtime, its ostensible goal is to ensure builders and others do not block sidewalks and streets, making passage impossible for the disabled. Small private contractors -- who received the vast majority of SPOT's $622 tickets -- instead characterized the program as an overtime cash cow for the officers working it that ignored city crews and large utilities to prey upon small to mid-sized contractors. The very week SF Weekly's story came out, MTA and the SFPD announced large-scale changes in the SPOT program and have subsequently curtailed many of the controversial practices highlighted in the article; this was explained as coincidental timing.

On Wednesday night, however, police commission member Thomas Mazzucco asked what could prove to be a very costly question: Were hefty citations handed to contractors characterized as infractions or misdemeanors? MTA transit engineer Brian Dusseault said he believed the citations were misdemeanors -- which triggered a slew of red flags for Mazzucco. 

If the citations were characterized as misdemeanors, then the adjudication method for the nabbed contractors -- a hearing, often presided over by the officer who wrote the ticket, with an arbitrator in a remote location listening in via speakerphone -- could be interpreted as a denial of the contractors' right to due process.

"If this is a misdemeanor, then [cited contractors] are entitled to a jury trial. They're also entitled to counsel if they can't afford one," said Mazzucco. "This is important, because if we run the record on one of these contractors and this shows up on his rap sheet [the distinction] between 'infraction' and 'misdemeanor' is a really big deal. We need to dig down and get to the bottom of this issue."

Department of Parking and Traffic director Bond Yee later noted that the city attorney was in the process of changing legislation to "decriminalize" the offenses overseen by the SPOT program, so citations can be handed out by enforcement personnel other than police. This, too, did not sit well with Mazzucco.

"That's excellent, but we've had five years of strong enforcement and people may have been tagged with a misdemeanor without their right to due process," he said.

The potential money loss for the city comes from a class-action federal lawsuit contractors from the Residential Builders Association threatened last month, claiming, among other charges, they were denied their due process. RBA members said after Wednesday's meeting that such a lawsuit is definitely still in the forefront of their minds -- and if, as Mazzucco fears, the city did deny the builders their due process, that would be huge asset to the RBA's potential case.

In addition to requesting a clarification on the infraction-vs.-misdemeanor question, Mazzucco asked, specifically, how much money SPOT raked in in 2007 -- when it handed out 1,755 tickets and made only 76 admonishments -- and how much money was, in turn, sent to the SFPD in overtime payments. Mazzucco and other commissioners said that even the appearance that SFPD officers were inclined to hand out tickets to generate revenue for the self-funding SPOT program was problematic.

Police Commission president Theresa Sparks said MTA would be made to answer these questions "soon" -- within the next couple of weeks. She also confirmed that builders' harassment allegations against a police officer connected to SPOT had been relayed to Chief Heather Fong -- and that an internal affairs investigation would soon commence. Sparks declined to release the officer's name. 

Summing up some of the other highlights of the night (other than the Carnival bacchinal in the lobby):

  • Once again, Police Commission members congratulated Lt. Nicole Greely for the changes in the SPOT program since she assumed control from Sgt. Pat Tobin in October of last year;

  • Commissioner David Onek questioned what, "other than selective enforcement" could lead to numbers like those recorded in 2007: 1,728 citations for private contractors, 25 for utilities, two for city crews. Dusseault said the same thing Tobin told SF Weekly in '08 -- policy is to talk to city crews' bosses -- but added "I'd love to cite them. But, you know what? We didn't." Onek said that everyone out on the street "should be treated the same. It seems clear to me from these numbers that they weren't."

The SFPD is scheduled to completely relinquish any ties to the SPOT program by July. 

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