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The Ides of "May": The Language of the Mayor's Pet $500 Million Bond "May" Alarm You 

Tuesday, Oct 7 2014
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Well, it's October again. The Giants are in the playoffs. We're blessed with the sundress weather that enables million-dollar median home prices. And 'tis the season when every area chiropractor offers up a silent, thankful prayer, knowing he or she will soon be visited by legions of ailing letter carriers, hobbled by the reams of political mailers and the Tolstoy-length election materials facilitating San Franciscans to vote on damn near everything.

This contest promises to be a particularly lucrative one for the chiropractors. San Franciscans will cast their lots regarding 26 state or local candidates, seven state measures, and 12 local propositions. And yet, counterintuitively, much of the attention this election cycle has gone to Proposition A, an ostensibly boring Muni transportation and road improvement bond. This $500 million bond purports to make San Francisco's streets safer. This it may yet do, but the most dangerous place to stand in this city is in its way.

Mayor Ed Lee and his apparatchiks have, with monomaniacal fervor, flogged this bond above all else. In the name of passing the big bond, the Municipal Transportation Agency Board was, humiliatingly, cowed into reversing itself and nixing its months-old Sunday parking meters program. In the name of the big bond, Scott Wiener and his five fellow supervisors who greenlit a measure to provide dedicated Muni operations funds based on city population growth were overtly threatened by the mayor's office to expect the money to be hacked away from their preferred constituencies. And in the name of the big bond, Wiener was upbraided for pushing a proposed tax on sugary beverages onto the ballot.

Voters, it was argued, would be put off by this onslaught of revenue measures. But voters may yet be put off by another element of the big Muni bond — its very language.

The key word here is "may."


There's a reason people refer to the "letter" of the law. Getting things in writing matters. Words matter. Or, per an MTA board member, they don't.

During a pair of recent presentations at city political clubs, MTA commissioner Cheryl Brinkman, arguing on behalf of Prop. A, stated that a City Attorney's opinion concluded that, when it comes to bond language, the terms "shall" and "may" are identical.

Huh.

Brinkman now says she's not entirely sure what she said. Multiple witnesses are more certain: "She did say that!" recalls Potrero Hill Democrats president Joni Eisen.

Well, no such City Attorney's opinion exists. We've checked. And how could it? "Shall" and "may" do not mean the same thing, period. In legal parlance, "shall" is "prescriptive" language and "may" is "permissive" language.

The language in Prop. A is permissive. Everything listed within it is something that "may" be funded, "may" be done.

It purports to put its debt-financed half-billion dollars toward a cornucopia of transit and infrastructure improvements of the sort that'll keep San Franciscans from getting bogged down in stopped traffic or run over by moving traffic. And yet each of its many subsections begins "a portion of the Bond may be allocated to..." The preamble for its $500 million list of transit improvements — pedestrian bulbs! new traffic signals! transit-only lanes! — reads "projects to be funded under the proposed Bond may include but are not limited to the following" (emphasis ours).

Within the bond, it is not disclosed who will be deciding what projects to fund, when, and how much they'll be funded. It is noted, however, that whatever plans are eventually settled upon are subject to "review and further changes" by the mayor and board.

The mayor has been pushing, obsessively, for a massive bond over which it appears he has final, and ultimate, control.


The text of Prop. A is remarkably specific about the things it "may" fund. But it's also remarkably broad. In the end, any "infrastructure repairs and improvements that increase Muni service reliability, ease traffic congestion, reduce vehicle travel times, enhance pedestrian and bicycle safety, and improve disabled access" seems to be fair game.

Any number of Muni projects could purport to achieve those noble goals.

Muni boss Ed Reiskin, however, says that won't happen. The bond, he states, "will" be used for the litany of projects in its literature — your transit-only lanes, your pedestrian bulbs. "That is what we will use these funds for. I'm saying we will," he continues, markedly using more prescriptive language than the bond itself.

Reiskin has a solid reputation for managerial competence. But Muni is a beguiling organization with a long history of poorly managing its millions and additionally having scores of millions of its dollars siphoned away from it — even in the face of the stated will of the electorate. When asked, point-blank, if bond dollars could be shunted to the Central Subway project — which could certainly be crammed under the aegis of a congestion-easing, travel time-enhancing endeavor — he replies this would not be "within the spirit" of this bond's aim.

What's more, Reiskin continues, there's no need to find funds for the Central Subway as that project is "on time, on budget."

Earlier this year, Central Subway cost engineer LaVonda Atkinson revealed to SF Weekly that she, the project's "cost engineer," could not with confidence make such a declaration let alone state what, exactly, Muni has gotten for the hundreds of millions of dollars it has sunk into the project. This is largely because, at the behest of her superiors, she claims she was ordered to move around scores of millions of dollars to conceal past cost overruns, retroactively matching the budgets for long-dormant Central Subway tasks to the actual expenditures. This was cloaked, however, by Atkinson manually typing "0" in the spreadsheet column that should have denoted a change in costs.

And that was possible because Muni, despite spending $17.1 million on a project management program that would keep up with the subway's ever-shifting numbers, is tracking a multibillion dollar project through Microsoft Excel, a program with Etch-a-Sketch posterity.

So, per Reiskin, this bond "will" enable great things. It "may" all work out well.

It "shall" certainly work out well for somebody.

About The Author

Joe Eskenazi

Joe Eskenazi

Bio:
Joe Eskenazi was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. "Your humble narrator" was a staff writer and columnist for SF Weekly from 2007 to 2015. He resides in the Excelsior with his wife, 4.3 miles from his birthplace and 5,474 from hers.

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