Dennis Herrera, Running for Mayor, to Farm Out City Attorney Cases

Thumbnail image for Dennis Herrera by Jim Herd.jpg
Dennis Herrera doesn't want to hear your legalistic questions about the mayoral race...
City Attorney Dennis "He's Running For Mayor!" Herrera last week announced that, yes, he's running for mayor. Less publicized was a memorandum Herrera sent around the city announcing he plans on recusing both himself -- and his entire office -- from a variety of political cases to "avoid even the appearance of any conflicts of interest."

Herrera personally won't handle cases or give advice to the city regarding campaign matters. But his entire office will not be involved with any cases regarding the forthcoming mayoral election, and will farm out the work to city and county attorneys elsewhere. It was an arrangement government watchdogs contacted by SF Weekly described as cautious, sensible -- and also potentially problematic.

In the coming weeks, months, and years, Herrera's office won't have mayoral quandaries to kick around. Per his memo, the following cases will no longer be handled by the city's paid staff:

  • Election questions regarding mayoral candidates;

  • Campaign finance questions regarding mayoral candidates;

  • Complaints filed with the Ethics Commission alleging violations in the mayoral campaign.

Starting now, these sorts of cases will head to Oakland city attorneys or the county attorneys of Santa Clara and San Mateo. This, Herrera stresses, is done on a reciprocal basis and ostensibly wouldn't cost the city any money.

Jessica Levinson, the director of political reform at the Center for Governmental Studies, a non-profit good government center, saw potential problems with Herrera's plan. Do outside counsel understand the Byzantine system of laws governing candidates in San Francisco as well as our own paid -- and elected -- city attorney? And is the city attorney's office, in essence, lucking out by having much less work because its head is running for mayor?

"I hate to sound cynical, but should it be a boon for the city attorney's office because the city attorney is running for mayor and all of the sudden there's work they don't have to do?" she asks. If cases and advice regarding the mayoral election represent a significant portion of the office's work, "then there may be an argument that the city attorney basically has to decide whether to be the city attorney or be a candidate."

Matt Dorsey, a spokesman for the city attorney's office, downplayed Levinson's concerns. He said "local municipal lawyers" in neighboring cities "are well-equipped to handle any questions that come up, the same way we do in their cases."

He also noted that, while some legal advise and/or activity regarding the mayoral election is inevitable, it likely won't be a significant chunk of the work on the office of the city attorney's plate. As an example, the last time such a conflict of interest arose was during the city's pursuit of then-Supervisor Ed Jew in 2007 and '08. The city attorney had hauled Jew before the city's Ethics Commission -- but that commission usually takes its legal advice from the city attorney's office. So county lawyers from Santa Clara ended up advising the commission (incidentally, Jew solved the whole problem by resigning. It would have entertaining, by the way, if San Mateo county lawyers had been involved -- considering Jew allegedly lived there, and not in the Sunset).

Levinson acknowledged that the balancing the responsibilities of a city attorney running for mayor was difficult to solve in a way that'll satisfy everyone. "It seems like he's bending over backwards to avoid the situation of his office making a ruling that'd be beneficial to him -- and look terrible."

Photo   |   Jim Herd

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