At our election endorsements and recommendations meeting last month, I voted in favor of Proposition C, although it was one of a couple local measures on the November ballot on which the correct position didn’t seem immediately obvious to me. After a bit of discussion, we ended up voting for the LPSF to take no position, which didn’t dissatisfy me.
Now however, I’m thinking I may have been wrong, and am personally leaning toward voting no, and may make a motion to reconsider our recommendation to take no position. In preparing write-ups of our positions for the website, I encountered a troubling section in the legal text of the measure (at https://www.sf.gov/sites/default/files/2024-08/legal%20text.pdf). Some of its wording, which would be added to existing law describing the powers and responsibilities of the Controller’s Office, reads,
“Further, the Controller may subpoena witnesses, administer oaths, and compel the production of books, papers, testimony, and other evidence with respect to matters affecting the conduct of any department or office of the City and County. The preceding sentence authorizes the Controller to compel testimony or production from any person or entity including but not limited to City and County officers and employees; persons or entities that have or are seeking a contract, grant, lease, loan, or other agreement with the City and County, and their employees or officers: applicants for or recipients of permits, licenses, land use entitlements, tax incentives, benefits, or services from the City and County, and their employees or officers; and registered City lobbyists. The Controller and employees of the Controller, including the Inspector General, may seek and execute search warrants to the extent permitted by State law.”
I’m not 100% positive how to read that pair of tricky sentences, but it seems to me they appear to contain wording that could be an elastic loophole for power abuse. If this is true, Prop. C could be creating a new government position that could go execute searches of ordinary civilians. The limiting wording, such as it is, is the part of the first sentence reading "with respect to matters affecting the conduct of any department or office of the City and County”. This vaguely reminds me of the infamous “general welfare” and “interstate commerce” clauses in the U.S. Constitution. What does it mean, after all, to affect the conduct of a city government department?
If for example, you are the recipient of a permit to do work on your home, does that give the controller’s office the legal power to come and search your home for evidence that you’re failing to comply with the conditions of the permit, unless state law specifically prohibits them from doing so? After all, the matter of what work is being done on your home can logically be said to affect a department’s conduct – if it’s the “wrong” kind in their eyes, the Planning Department may issue you a fine or require it to be removed.
Or say there’s a city ordinance providing some kind of tax exemption to businesses with fewer than a certain number of employees – if your business reports that they have fewer than the required number of employees and claims the exemption, does this give the Controller’s office the right to come into your office and demand you produce papers proving that individuals they see or suspect of working for you are really independent contractors and not employees? Granting or not granting a tax exemption to a particular business would again be a matter of conduct.
Think about how many other government agencies already have statutory mandates to investigate you or intrude into your life in different ways, and how their mandates have in many cases expanded over time in ways the agency’s creators’ likely did not envision.
I asked at the Potrero Hill Democratic Club’s endorsement meeting about whether the extent to which the measure would allow the investigation of people outside government, giving the example of someone who was getting a city permit for an event or something, but I didn’t ask about this specific sentence. While the impression I got from the answer given by the proponent who was there to speak for the measure was that they thought the investigatory power was limited and would not be used that way, I don’t recall now who they were or exactly what they said. Jodi Eisen of the PHDC told me they’d be putting video of the proceedings online, so perhaps we’ll be able to find out.
The official opponent, Larry Marso, calls Proposition C a power grab. Although he doesn’t specifically talk about the language I cite above, or the possibility of the new powers Prop. C grants being used to go after more or less ordinary members of the public, I’m starting to think he may be right. Marso’s fellow Republican opponents in the Briones Society also wrote an op-ed piece published at https://www.sfgate.com/politics-op-eds/article/how-to-fix-sf-government-17430726.php, advocating as a better solution the creation of an elected (rather than appointed) office to oversee government spending, which I was also thinking would be a more desirable approach.
Controller Greg Wagner says in the Controller’s Statement on Prop. C in the Voter Information Pamphlet, that the measure would have only a “moderate impact” on the cost of government (maybe around $1 million per year), but given that his office would be granted additional powers and employees, he has a pretty blatant conflict of interest and may be incentivized to downplay the possible or likely costs.
Love & Liberty,
((( starchild )))
Chair, LPSF
(415) 573-7997