Ethics Commission Whistleblower Lawyers Up, Charges Retaliation

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Some of you may remember a June 29 article we ran here about how the city's Ethics Commission sure seemed to be going out of its way to not cite and fine Supervisor Carmen Chu -- a moderate represented by lawyer and mayoral svengali Jim Sutton. Meanwhile, progressive Supes Gerardo Sandoval and Chris Daly had been cited and fined for virtually identical campaign finance transgressions.

When Ethics Commission staffer Oliver Luby sent his bosses a note noting the Sandoval and Daly precedents he was excoriated by Deputy Director Mabel Ng as "insubordinate" and threatened with possible termination. We reported that in our earlier story. But it turns out this was just one of several curiously timed slings and arrows tossed Luby's way by his superiors.

In the weeks following Luby filing a whistleblower complaint against Ethics in May, he was sent a written reprimand threatening potential termination, the aforementioned e-chiding from Ng threatening the same, and was the subject of an anonymous ethics complaint. This week, Luby's pro-bono attorney David Waggoner -- who has established a cottage industry of beating the Ethics Commission -- filed a motion to dismiss the complaint against Luby, charging Ethics is retaliating against a whistleblower. 

Luby's May whistleblower complaint was the third of his career at Ethics. In 2004, he exposed a document-destroying scheme and was subsequently honored by the Society of Professional Journalists. Last year, he filed a complaint when it became apparent that large swaths of data would be lost if Ethics carried out a planned database switchover (the data was preserved). Then, in May, he filed yet another whistleblower complaint: Luby says that despite his repeated warnings that Ethics was overcharging a candidate for fees he had already paid, a judgment against the candidate including the overcharges had been passed on to the city's collections department. (Luby tells us that the overcharge was only enough for, say, a night of moderate drinking for two at a San Francisco bar; this was something he says he did on principle). Luby's complaint to the District Attorney and controller quickly rectified the matter.

Roughly a week after filing the complaint, Luby received an official reprimand for using his office computer and e-mail to write to the state's Fair Political Practices Commission to offer his personal input on California campaign finance laws. This exact charge was then mirrored in a subsequent anonymous complaint, as was the threat of termination later echoed by Ng.

Waggoner sees the timing of all this as more than coincidental. He alleges this is a clear-cut case of whistleblower retaliation. He also notes that it is neither illegal nor even uncommon for a campaign finance expert such as Luby to write e-mails offering his personal opinion on such matters to the state regulators with whom the city's Ethics Commission often works hand-in-hand.

"I've been involved in several cases now, and it's hard to give Ethics' management the benefit of the doubt when things like this keep happening," Waggoner said. "For Oliver to be subject to attacks for doing his job, it stretches the limits of what anybody would consider reasonable. Why is management going after him in such a petty way that doesn't even have any basis in law?"

Our messages for Ethics' Executive Director John St. Croix have not yet been returned.



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