Fajita Backlash

Our DA's ineptitude in dealing with a food-inspired police scandal may frustrate desperately needed reform of SFPD

I think I've found a silver lining to the awful fix our city's police department has found itself in. Now that Assistant Chief Alex Fagan Sr. has been suspended from his duties, he'll get to spend some time at home for a change.

According to pay records from the city Controller's Office, Fagan has been an incredible workaholic, accumulating a little more than an entire year of compensatory time -- either during the course of his career, or over a shorter amount of time. (The city records available to me don't say which.)

Traditionally, compensatory time is a form of overtime pay that involves barter rather than cash; employees who have worked beyond eight hours in a day, or 40 hours in a week, agree to take time rather than money as payment for their extra labor. In years past, San Francisco treated comp time the same way most other employers do: It was generally understood that if you didn't use comp time within a set time frame, you would lose it, and you certainly would lose it when you left city employ.

But according to a January report by the city Controller's Office requested by Aaron Peskin, city employee unions have negotiated into their contracts clauses that allow comp time to be accumulated, or "banked" over time, and eventually turned to cash. In the case of the SFPD, no specific language allows this practice. Instead, department officials have apparently interpreted the police union's contract with the city -- which states that employees may request compensatory time off instead of overtime -- to mean that time can be indefinitely banked, then paid out in cash upon retirement at the employee's latest rate of pay. Department brass have apparently allowed comp time to accrue without any formal authority from outside the department, quietly creating tens of millions of dollars in liability for the city.

In a perverse way, the city's comp-time system lets everybody win -- except the public. Department managers get to postpone overtime payments indefinitely, creating the appearance of a balanced budget. Employees, meanwhile, may bank hundreds of thousands of comp-time dollars, creating nest eggs for themselves that can reach well into six figures.

Of course, the city treasury piles on tens of millions of dollars of unfunded liability without attracting much notice. And the city treasury is you and me. But what do we matter?

City employees, especially police officers, have eagerly taken advantage of the comp-time perk. As of December, the average city employee had accrued 84 hours of compensatory time which, if turned to cash, would be worth about $3,011. But Alex Fagan Sr. is no ordinary worker when it comes to squirreling away comp time. He's accrued more hours than any other management-level employee in all of San Francisco, with 2,086 hours, worth $185,754. Fagan's stash is particularly remarkable given the fact he's management. After all, shouldn't city managers, who are paid more than other staff, be expected to work more than 40 hours per week when necessary, without significant additional compensation?

Nonetheless, as of December, the city had accrued $44 million in comp-time liability, with more than $23 million owed to SFPD employees, including 24 officers with a rank of captain or above.

I'm not saying that the elder Fagan's extra time at work, presumably time not spent at home, has anything to do with the bad comportment of his son -- the fellow alleged to have bludgeoned a bartender for not handing over a bag of fajitas, thereby sparking the largest police scandal in recent memory.

And I'm not saying that San Francisco public employees might have abused the city's untoward comp-time policy, racking up questionable (or even phony) overtime hours, knowing that hardly anyone has paid attention to these growing nest eggs.

I'm saying that this is just the sort of questionable, expensive practice that has made San Francisco government famous for spending billions and getting little in return. And the status of SFPD brass as the most egregious abusers comes as no surprise: The department has built up a reputation for abusing the public trust.


This may be no time for journalists like me to be fussing about minor SFPD shenanigans like payroll padding. After all, the department has far, far worse troubles right now. Its venerable, civil-rights-pioneer Chief Earl Sanders has been photographed, squinting and humiliated, during a bail hearing. His patron, Willie Brown, appears to be mulling whether to ditch him. Fagan Sr. and other brass have skulked from their posts sans pay; the SFPD is in shambles; the nation is riveted. And the crusading local daily newspaper seems bent on turning fajita-toting bartender Adam Snyder into an S.F. Rodney King. By a certain reckoning, San Francisco's police force, which has for years worn a Kevlar vest against charges of laziness, ineptitude, waste, secretiveness, and brutality, has finally found itself vulnerable to reform.

It's serious business, and an interesting story line, a tale of abuse and comeuppance the likes of which San Francisco muckraker Frank Norris used to pen. But upon close examination, the plot dilutes and veers in unanticipated directions. In the end, if this saga unfolds as it's threatening to, we'll have a Huey Long comeback tale, a three-act drama of redemption with the SFPD as the central protagonist.

In Act I, the department appears down for the count, on the verge of being forced to dramatically reform itself.

In Act II, the DA's case falls apart amid days of pathetic public hand-wringing over evidentiary insufficiencies.

Act III: The SFPD emerges vindicated and, therefore, sheathed in a layer of impunity even stronger than the one that had previously protected it.

From where I sit, this scenario's as good as already written. District Attorney Terry Hallinan would need to pull off a prosecutorial miracle to prove the obstruction of justice conspiracy that he told a grand jury he could not prove. And our DA's no magician; he's a hapless bumbler. Correction: He's a hapless bumbler with a weak case.

As readers of any news outlet in America know, a grand jury last month indicted three officers, including Fagan's son Alex Jr., of an unprovoked attack on a bartender and his friend. The indictment also accuses seven high-ranking officers, including Chief Earl Sanders and Assistant Chief Fagan Sr., of conspiring to cover up the alleged beating. Recent reports say Hallinan is reviewing grand jury testimony and may decide to withdraw charges against all but the three officers involved in the initial brawl.

Hallinan's case is almost sure to fail. And then the very real problems of the police department, which cries for reform, will be buried in backlash sympathetic to the SFPD.

And as anybody who's followed the department's behavior during recent years knows, padding payrolls with tens of millions of dollars worth of comp time is the least of the SFPD's sins. Our cops have the worst big-city record in the country when it comes to solving violent crimes, according to a Chronicle report last year. The department doesn't even investigate some serious crimes: The attempted rape of my wife in an apartment building elevator four years ago is one such case that comes to mind.

An officer assigned to her case assured her police would search for her assailant. When his supervisor later said there would be no investigation, she asked why she had been mislead.

"I didn't want you to get more upset," is what she recalls him saying.

The SFPD's record of honestly dealing with police brutality cases, meanwhile, makes the current cover-up crisis appear trivial, even absurd. The department has long pursued a policy of willful obfuscation whenever its members are accused of using excessive force. In the case of Idriss Stelley, the boy police gunned down two years ago at the Metreon theater, the department withheld basic information from the public about the killing for months, citing a loophole in state public information law. In the case of Gregory Caldwell, who was asphyxiated in police custody last year in a hobble restraint device, police secrecy left his mother with no way of knowing what had happened to cause her son's death. Without access to facts, she incorrectly feared he'd been lynched by cops; she suffered a nervous breakdown.


So by my way of reckoning, March 2003 is a wonderful moment of opportunity in the history of San Francisco's relationship with its police department. The San Francisco Police Officers Association's contract with the city expires June 30. The city will be renegotiating it this spring. The negotiations represent a great chance to erase work and pay rules, including the department's comp-time policy, that abuse the public trust. We'll be voting for a new mayor before long, giving the public the opportunity to make police reform a central campaign issue. Do candidates Gavin Newsom, Tom Ammiano, former Supervisor Angela Alioto, Treasurer Susan Leal, and former Chief of Police Tony Ribera support hiring a reform-minded police chief, or a Police Commission with some sort of spine?

This voter wants to know.

Sadly, by the time the campaign is in full swing, the police department will have been "vindicated." And Alex Fagan Sr. will be back at work, refreshed, vigorous, ready to begin working overtime to protect our public safety.

Or would that be compensatory time?

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