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“Unitary Executive Privilege.” Whoever heard of such a thing? Until recently, I hadn’t. But this idea is at the heart of an attack on the authority of Congress by the Bush administration. Using signing statements to limit the scope of newly passed laws, President Bush places executive power above the Constitution. And with that kind of attitude displayed at the top, unbridled arrogance ripples through our federal government The hubris that characterizes the Bush administration is on clear display here in the Bay Area in a number of lawsuits against the San Francisco Housing Authority, a local agency that provides low-income housing using federal funds. I represent Deborah Drummer in a sexual harassment suit against the SFHA. We tried her case in 2000 and obtained a total judgment with attorneys’ fees of about $200,000. After losing several appeals, the SFHA still refused to pay the judgment. In May of this year, San Francisco Superior Court Judge Ernest Goldsmith held the SFHA in contempt (there are two other judgments that SFHA refuses to pay; one arose out of the wrongful death of several SFHA residents during a fire and the other arose out of a sexual harassment claim. These other judgments total approximately $14 million). Until recently, the focus of the case was how to force a public agency to comply with a lawful civil judgment and writ of mandate. SFHA administrator Gregg Fortner claimed his agency could not pay the judgment without the approval of the United States Department of Housing and Urban Development. Judge Goldsmith held SFHA in contempt because SFHA made no good-faith effort to request HUD permission to pay the judgment. The focus changed, however, when HUD Assistant Secretary of Public and Indian Housing Orlando Cabrera issued a letter to SFHA dated Oct. 30, 2006, denying permission to pay the Drummer judgment, which had ballooned to $700,000 due to increased attorneys’ fees and interest, as well as the two other judgments. Mr. Cabrera stated: “No HUD-derived federal funds allocated to SFHA are available to satisfy a judgment unless HUD has authorized their use for that purpose.” He further claimed using HUD funds “to pay any of the judgments would adversely impact SFHA’s ability to provide housing in San Francisco (emphasis added).” How could Mr. Cabrera write this sentence with a straight face? When HUD actually got involved in the case, it could have been a positive development. A high-ranking HUD official surely might have done the right thing and paid the judgments. But a little research into the background of Mr. Cabrera revealed some disturbing facts. Orlando Cabrera, it turns out, is a former international real estate lawyer from Florida with no involvement in public housing prior to his nomination by President Bush and confirmation by the Senate to his current position in October 2005. Given his lack of experience with housing policy, no one should be surprised Mr. Cabrera makes no attempt to explain how paying a $700,000 judgment out of a total available operating budget of over $40 million would adversely impact SFHA’s provision of housing. In fact, Mr. Cabrera fails to cite any facts (or law for that matter) to support his position. This is yet another example of the Bush administration making an assertion without any basis in fact. Later in the letter, consistent with Bush’s strategy of using repetition when advocating untruths, he repeats this unsupported statement: “Our approval of the request you have made would contradict SFHA’s mission to deliver safe, decent, and affordable housing.” Some SFHA tenants might beg to differ with Mr. Cabrera’s assessment of the housing provided through HUD funding. In addition to being unprecedented, Assistant Secretary Cabrera’s position has far-reaching public policy implications that he apparently did not consider. Mr. Cabrera has no problem with allowing SFHA to get away with sexually harassing its employees or negligently causing the death of tenants. In effect, SFHA (and by implication all public housing agencies) gets a free pass. It can violate state and federal laws with impunity, with no fear of having to pay any adverse judgment. That begins to sound like a claim of sovereign immunity. Yet, the statutes of California and the United States provide no sovereign immunity for public housing agencies. But if such agencies don’t have to pay judgments against them, what’s the difference? In either case, the agency would get away with negligent and unlawful conduct. The Bush administration is usurping a legislative function by granting de facto sovereign immunity to public housing agencies. For its part, the taxpaying public should be outraged by this series of moves. The public has a clear interest in keeping public housing safe for its tenants � and employees � because that contributes to the overall well-being of our society. Stephen M. Murphy is an attorney in San Francisco where he represents employees in civil rights litigation. He can be reached at [email protected].

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