Written By: Allison Stone and Christopher B. Dolan

What is ascertainment?

President-elect Joe Biden’s transition to power relied on a widely unknown acknowledgement called, “ascertainment.” Under the Presidential Transition Act of 1963 (PTA), the transition to the next presidential administration formally begins once the Administrator of the General Services Administration (GSA) ascertains the, “apparent successful candidate,” for president. But what does this mean?

Generally the GSA is the federal agency that keeps our government running, and the GSA Administrator determines when the transition to a new administration begins.  To do so, pursuant to the PTA, the Administrator ascertains the apparent successful candidate following a presidential election.

What has proved to be problematic is that there is no definition in the PTA as to how an, “apparent successful candidate,” is ascertained by the Administrator. The PTA has been amended over the years, yet the ascertainment requirement has remained vague. Thus, this critical decision is at the GSA’s discretion and based on the Administrator’s reasonable judgment.

This begs the questions: What is reasonable? What should be considered? Historically, the factors that have been relied upon include news media election calls, vote counts reported by states, and the losing candidate’s concession. For the transition to begin, the Administrator signs a letter of ascertainment, which is the current administration’s acknowledgment that a candidate won the election. Only the Administrator can ascertain the winner, thus he controls when the formal transition begins.

Currently, the Administrator is Emily Murphy. She was nominated by President Trump and appointed in 2017. It was therefore, her duty to ascertain who won the 2020 election, and she held the power to decide when to initiate a transition of power.

Why does ascertainment matter?

A letter of ascertainment is the necessary step to make considerable federal funding, resources and services provided by the PTA available to the President-elect and his team, and it allows them into the federal agencies they will take over. This gives them time to organize before Inauguration Day.

Ascertainment is a routine step based on the unofficial election results and the Administrator’s decision was made once a few credible news outlets declared a winner or after a concession. Ascertainment has often been made within a few hours to a couple of days. A prompt transition is necessary so the President-elect can hit the ground running.

Although Joe Biden was widely accepted as the apparent winner on November 7, 2020, and although news outlets and states had called the election for Joe Biden, Emily Murphy did not authorize the transition for 16 days, until November 23rd.  As a result, there was a delay in the dispersal of crucial resources and materials provided by the PTA to ensure a smooth transition. Until November 23rd Joe Biden’s team could not access $9.9 million to create a new administration or to expedite background checks, and they could not go into federal agencies, or obtain intelligence briefings.

What are the consequences of delaying ascertainment? 

This delayed decision has put lives at risk, particularly during this COVID-19 pandemic. Transition experts opine that the 16-day delay will leave the new administration’s coronavirus response team less prepared, may hinder coordination on future economic relief, and may threaten our national security. There was a delay with ascertainment following the contested 2000 election and experts cite 9/11 as a tragic result of the delay in getting the new administration’s national security team situated. Similarly, here, the 16-day delay puts the safety and well-being of Americans in further danger and this time cannot be regained.   

How do we prevent a delay in ascertainment in the future?

Emily Murphy did not authorize the transition process for 16 days, which was well-after all major media outlets and states reported an apparent winner. Notably, in her November 23rd letter, Emily Murphy does not refer to Joe Biden as the, “President-elect,” and never stated that she ascertained that Joe Biden is the “apparent successful candidate.” This is the basic language in the PTA. Instead, Emily Murphy stated, “I have determined that you may access the post-election resources and services described in [the PTA].” Her letter also states, “Please know that I came to this decision independently […] I was never directly or indirectly pressured by any Executive Branch official […] with regard to the substance or timing of my decision.”

 

Also, on November 23rd President Trump tweeted that, “… I am recommending that Emily and her team do what needs to be done with regard to initial protocols…” Although ascertainment is supposed to be an apolitical, independent decision by the GSA, the President’s tweet in conjunction with Emily Murphy’s letter has raised red flags and suggests that the delay was politically driven and influenced by the President.

 

 

To prevent harmful delays in the future, amendments to the PTA should be considered. Some changes should include a definition or clear criteria for determining, “the apparent successful candidate.” This will prevent Americans from relying on the unfettered discretion of one person in such a critical process in our democracy. Further, imposing penalties when an Administrator abuses the duty of ascertainment should also be considered.  Finally, change must be made to ensure that ascertainment is, in fact, apolitical and independent. The 2020 election has taught us that changes to the PTA would be highly beneficial to ensure a smooth and prompt transition of power for the safety of our country.    

This question comes from Kim M. in Pacific Heights, who asks:

Q: “I want to get my daughter a gift card for the holiday, but I have heard that they have fees and expiration dates that can result in the card losing most or all of its value. What is the law regarding these gift cards?”

A: Gift cards can be good for the retailer and the receiver. The receiver can take advantage of the Cyber Monday and Black Friday sales to get more for his or her money, and the retailers get cash upfront without reducing inventory. These cards used to be more of a benefit for retailers, but the California Legislature, in combination with certain consumer-rights groups, has enacted legislation designed to protect consumers.

California Civil Code Section 1749.5 contains the bulk of the law regarding gift certificates and gift cards. Section 1749.5 makes it illegal to sell a gift certificate that contains an expiration date. Likewise, it provides a prohibition against service fees, including any fee for dormancy (unless it has been dormant for more than 24 months, the fee is clearly stated in 10-point type on the card, the fee is no more than $1 per month and the remaining value of the card is $5 or less each time the fee is assessed).

Any gift certificate sold after Jan. 1, 1997, is redeemable in cash for its cash value or subject to replacement with a new gift certificate at no cost to the purchaser or holder, and any gift certificate with a cash value of $10 or less is redeemable in cash for its cash value.

There are certain exceptions to the no-expiration rule. Namely, gift certificates issued pursuant to an awards, loyalty or promotional program without any money or other thing being given in exchange for value, gift certificates donated or sold below face value at a volume discount to employers or nonprofits for fundraising purposes and certificates for perishable food products. Certificates of this type must have the expiration date in capital letters printed on the front.

One issue with gift cards that are not redeemed is the company may go bankrupt. This has happened in the past, leaving countless individuals with gift cards with no value beyond that of the plastic in their hands. California law states that the value of a gift card is held in trust by the issuer such that when and if the issuer goes bankrupt, the gift card value is not considered part of the bankrupt entity’s estate but is considered the holder’s property.

Civil Code Section 1749.6 states that an issuer of a gift certificate who is bankrupt shall continue to honor a gift certificate issued prior to the date of the bankruptcy filing on the grounds that the value of the gift certificate constitutes trust property of the beneficiary (holder). Under certain limited circumstances, gift certificates with an expiration date can be rendered valueless, but the money therefore does not go to the retailer it escheats — i.e. it reverts back to the state’s general fund if it is uncollected property.

Before purchasing gift cards or gift certificates, ask the vendor about their redemption policy. For a gift card that can be used by many non-affiliated vendors, ask for expiration dates and any relevant fees. In addition, ask about where the unused portion of the value can be redeemed and how that amount can be redeemed. This is also important for “single seller” cards, many of which can be purchased at an unaffiliated location.

So, Kim, this is probably more than you were asking for, but there it is. Unless the certificate meets these exceptions above, it can not be subject to an expiration date and your daughter should be able to benefit from your generosity.

This week’s question comes from Michelle P., who writes:

Q: “My daughter is a sophomore at a high school within the San Francisco Unified School District. Like many kids her age, she has a smartphone, which helps the family stay in touch but also allows her to interact regularly online with other kids from her school, some of whom can be very nasty to her, even threatening. She doesn’t feel like she has any choice but to engage with them but this cyberbullying has made her so anxious she can’t focus on her schoolwork. Does her school or SFUSD have any responsibility to intervene when their students are harming each other online?”

A: Michelle, you are right to be concerned and in your intuition that the school should be involved. Cyberbullying has become increasingly common over the past decades and can have tragic, even deadly, consequences.

The State of California recognizes all bullying as a form of violence that involves a real or perceived imbalance of power between individuals or groups of children and results in unprovoked, intentional, and usually repeated physical, verbal, or emotional abuse. Bullying may also manifest as sexual harassment, hate violence, and other severe or pervasive behaviors that create an intimidating or hostile educational environment. California has also specifically recognized the increasing prevalence of cyberbullying, defined as repeated or recurring harm willfully inflicted through electronic media, which can be just as detrimental to students’ wellbeing as face-to-face conflict.

Amendments to California’s existing Safe Place to Learn Act and Interagency School Safety Demonstration Act became effective on Jan. 1, 2019 and required all local educational agencies to adopt procedures for preventing acts of bullying, including cyberbullying, by the end of this calendar year. In May, SFUSD complied with this requirement by adopting Board Policy 5131.2: Bullying and Administrative Policy 5131.2: Bullying. SFUSD policy specifically prohibits transmission of communications or posting of harassing messages, direct threats, or other harmful texts, sounds, or images on the Internet, social networking sites, or other digital technologies, as well as assuming another person’s identity through an electronic account in order to damage that person’s reputation. SFUSD authorizes school administrators to intervene even if the cyberbullying is conducted off campus or outside of school hours in any case where the behavior is impacting students’ learning environment.

Your daughter’s school should have notified all families of the school’s reporting and investigation process. Any student, parent, guardian, or other individual who learns of school-related discrimination, harassment, intimidation, or bullying should immediately contact the school’s principal, or any other staff member. Any school employee who learns of cyberbullying is also required to report the activity to the school principal, who must in turn notify the district compliance officer and inform the target student of their right to file a formal written complaint with the district Office of Equity. Cyberbullying victims are encouraged to save and print relevant electronic or digital messages for aid in investigation of the matter. Complainants names will be held confidential to the extent possible and district policy prohibits any form of retaliation against any individual who files such a complaint.

The school principal is first required to determine whether interim measures are necessary to address the effects of the reported bullying pending investigation and final resolution. After a thorough investigation, including interviews of the accused student and any other witnesses, the principal will determine whether the matter may be resolved through “restorative practices,” a process similar to mediation. If further action is needed, a school may discipline the offending student and, if appropriate, request any applicable social media sites to remove offensive online content and/or suspend the offender’s user privileges.

Pupils who engage in discrimination, harassment, intimidation, bullying, or retaliation in violation of law, Board Policy, or administrative regulation may be referred for counseling, behavioral intervention and education, suspension, and/or expulsion. Any employee who permits or engages in prohibited discrimination, harassment, intimidation, bullying, or retaliation shall also be subject to disciplinary action, up to and including dismissal.

If you are unhappy with SFUSD’s resolution of the matter, state law allows 15 days to appeal the district’s action to the State Superintendent of Public Instruction. After sixty days following the filing of an appeal, you may seek civil remedies through the courts, seeking damages and injunctive relief (orders from the court to stop or change certain behaviors/policies).

Unfortunately, and incomprehensibly, we are growing accustomed to seeing daily news reports of human trafficking and exploitation of children and adults. Thanks to the internet, this multi-billion dollar industry, which boasts over 100,000 dedicated websites, is among the fastest growing online business sectors in the United States. At what point do we say enough already? The answer is NOW!

Human trafficking cannot be ignored or denied any longer. This topic can be extremely uncomfortable to acknowledge, but we can make a difference by being proactive. This is a matter of life and death!

Every one of us has the potential to discover and report a human trafficking situation. While some victims are kept behind locked doors, others are often hidden right in front of us in such locations as construction sites, restaurants, elder care centers, nail salons, agricultural fields, escort services, truck stops, and hotels. You can learn indicators of human trafficking and effective questions you can ask in order to empower yourself to act when your gut tells you that something is wrong and make a real difference.

Traffickers’ use of coercion — such as threats of deportation or physical harm to the victim or family members — is so powerful that, even if you reach out to victims, they may be too fearful to reach out for or accept your help. Therefore, it is important to recognize the enormous amount of courage it takes if a trafficked victim to reach out for help and action should be taken immediately to remove them from their abuser. When a human trafficked victim does reach out to someone, they probably want out now.

The suggestions set forth in this article are not exhaustive and are merely a starting point.  Starting the conversation and educating ourselves and others is the critical first step in ending human trafficking.

What to look for
Some key red flags to alert you to a potential trafficking situation that should be reported:

– Suspected victim is living with employer;

– Poor living conditions, including blocking windows so others cannot see inside;

– Multiple children/people in cramped space and rarely seen, with numerous adults coming in and out of the property;

– Inability to speak to a suspected victim alone;

– If you are able to speak with the suspected victim, the answers appear to be scripted and rehearsed;

– Employer is holding identity documents;

– Signs of physical abuse;

– Suspected victim appears submissive or fearful;

– Very little or no payment;

– Prostitution of children under 18.

Questions to ask:
Assuming you have the opportunity to speak with a potential victim privately and without jeopardizing the victim’s safety, here are some sample questions to ask:

– Can you leave your job if you want to?

– Can you come and go as you please?

– If you have tried to leave, have you been hurt or threatened?

– Has your family been threatened?

– Do you live with your employer?

– Where do you sleep and eat?

– Are you in debt to your employer?

– Do you have your passport/identification? Who has it?

Where to get help and education about human trafficking
If you believe you have identified someone currently in the trafficking situation, alert local law enforcement immediately by calling 911. You may also want to alert the National Human Trafficking Hotline at 1-888-373-7888, a national 24-hour, toll-free, multilingual anti-trafficking hotline. It may be unsafe to attempt to rescue a trafficking victim on your own. You have no way of knowing how the trafficker may react and retaliate against the victim or you.

If, however, you identify a victim who has escaped the trafficking situation, there are a number of organizations to whom the victim can be referred for help with shelter, medical care, legal assistance, and other critical services. Call the National Human Trafficking Hotline at 1-888-373-7888 to report a tip, connect with anti-trafficking services in your area, or request training and technical assistance, general information, or specific anti-trafficking resources. The Hotline is equipped to handle calls from all regions of the United States from a wide range of callers, including potential trafficking victims, community members, law enforcement, medical professionals, legal professionals, service providers, researchers, students, and policymakers.

Polaris, another nonprofit organization, provides human trafficking victims and survivors with critical support, local resources, training, and solutions to eradicate human trafficking. You can contact them to get help and stay safe through the BeFree Text line (text HELP to 233733) or 202-790-6300.

 

Everyone wants human trafficking stopped. Starting a discussion and educating others will make a difference! Will you accept this challenge?

“It ought to concern every person, because of our common humanity. It ought to concern every community, because it tears at our social fabric. It ought to concern every business, because it distorts markets. It ought to concern every nation, because it endangers public health and fuels violence and organized crime. I’m talking about the injustice, the outrage, of human trafficking, which must be called by its true name — modern slavery.” – President Barack Obama, Sept. 25, 2012

The most common forms of human trafficking are sex trafficking, forced labor and debt bondage. While any form of human trafficking is reprehensible and deserves attention, the focus of this article will be sexually exploited children. This is a difficult and uncomfortable topic, but denial and silence is killing and permanently harming our children.

Sexual exploitation of children by force, fraud, or coercion in the United States is misunderstood.  Many believe it happens in other countries, not right before our eyes in the United States.

This week’s question comes from Jim J. in the Excelsior, who asks:

Q: “My neighbor died. She was such a nice lady. I miss her and I also miss how she used to care for her yard. Her son inherited the place, he was never any good to her and was always trouble growing up. He hasn’t gotten any better with age. Since he moved in, he has been “collecting things” — mostly old cars but also tires, rims and other auto parts. He uses the garage to fix up old cars that he then sells. Most of the junk just stays there and rusts. It’s a scrap yard. Weeds are growing, and I have seen rats running in and out. It’s disgusting. What can I do about it?”

A: Dear Jim, you have a right to expect that your neighbor will keep their property reasonably clean. The conditions you referred to are commonly known as “blight,” and San Francisco has an ordinance — called the Community Preservation and Blight Reduction Act, contained within the Administrative Code — that codifies the responsibilities of a landowner to maintain their property.

The Board of Supervisors determined blighted properties are those that are in a condition of significant deterioration or disrepair, attract vagrants, gang members and other criminal elements as prime locations to conduct their illegal criminal activities, cause general deterioration and instability and substantially endanger the health and safety of residents of the blighted properties and of the surrounding neighborhoods. The Department of Public Works is empowered to issue notices of violation and take action to remedy blighted properties under the doctrine of nuisance.

The presence of any accumulation of filth, garbage, decaying animal or vegetable matter, waste paper, hay, grass, straw, weeds, vegetation overgrowth, litter, trash, cigarette or cigar butts, unsanitary debris, waste material, animal or human excrement is a nuisance prohibited under law. Likewise, “overgrown, dead or decayed trees, weeds or other vegetation, rank growth, rubbish, junk, garbage, litter, debris, flyers or circulars” are recognized as a fire hazards and conditions that promote the spread of vermin.

As to the “scrap yard,” the Administrative Code specifically identifies any property that contains, in the outdoor area, any refrigerator, washing machine, sink, stove, heater, boiler, tank or any other household equipment, machinery, furniture, or item, appliance or appliances as being blighted.

Whenever the director of DPW determines that a property is blighted, he or she may require or take any necessary abatement or other enforcement actions to cause the property blight to be abated. The director, or his or her appointee, can inspect the property and require the owner to pay for a property inspection fee of up to $250. DPW can also issue an abatement order requiring the landowner to address the issues, as soon as possible, and no later than 15 days after notice of the violation, although they can apply for an extension. A person cited also can request a hearing challenging the citation in front of an administrative law judge.

The DPW director can file a notice of abatement against the title of a delinquent property owner. If the owner fails to abate the nuisance, the director can order DPW to do so and then place a lien on the landowners’ property. A lien is a notice filed in the County Recorder’s Office against the title that indicates a debt is owed to The City for the costs associated with the abatement. Upon sale or transfer of the property, The City must be paid in order to secure clear title.

Jim, I suggest you contact DPW either by dialing 311 or by going to the sf311.org website. Search “blight” and request that they come out and inspect the property. Hopefully, they will do so, serve a citation and cause the neighbor to abate the nuisance. In case DPW fails to take action, you, as an owner affected by the blight, can request an injunction in San Francisco Superior Court.