Newsom's delay tactic would create a legal mess

Newsom last week praised the board's approval of the America's Cup bid, but he doesn't trust them to pick his successor.

In this week's Guardian, I lay out the latest political dynamics surrounding who will become San Francisco's next mayor. But in reporting out that story, I stumbled across some interesting potential implications to Mayor Gavin Newsom's petulant promise to delay his swearing in as lieutenant governor.

There is little precedent and scant caselaw on the legality of Newsom's gambit, as most lawyers and political observers have said, so Newsom would be taking the city and state into uncharted territory just the deny his nemesis, Sup. Chris Daly, a chance to vote on the successor mayor. And it could backfire on Newsom.

For example, what if the excitement of returning to the governor's office gives Jerry Brown, 72, a fatal heart attack after he and the rest of the state constitutional officers (except Newsom) are sworn in on Jan. 3? If Newsom had taken the oath of office as he was supposed to, he would realize his dream of becoming governor.

Instead, here's what California Government Code 12058 says would then happen: “In case of vacancy in the office of Governor and in the office of Lieutenant Governor, the last duly elected President pro Tempore of the Senate shall become Governor for the residue of the term,” so Darrell Steinberg would become governor. Having covered Steinberg when I worked in Sacramento, I think he'd make a far better governor anyway, so this is probably a good outcome.

Here's another unlikely scenario I like even better: what if Gov. Jerry Brown suddenly remembers all the nasty things that Newsom said about him while running for the Democratic Party gubernatorial nomination and declares the lieutenant governor's office vacant because of Newsom's no-show at the constitutionally mandated swearing-in ceremony and decides to appoint a grown-up to the office.

Newsom's stand also carries risks for San Francisco, beyond just the sudden transfer of power that Newsom and moderate supervisors have already created. The City Charter calls for the newly elected Board of Supervisors to be sworn into office at noon on Jan. 8. But, as I've learned in interviews with officials in the Clerk the Board of Supervisors Office, there's a strange quirk in the charter that makes it unclear who the president of the board is between when the new supervisors are sworn in and when they elect a new president, which is their first order of business.

After all, oftentimes the outgoing president isn't even a supervisor anymore, as was the case two years ago when Aaron Peskin yielded his D3 supervisorial seat to David Chiu. This year, the Clerk's Office says Chiu will preside over the Jan. 8 meeting for ceremonial reasons until a new president is elected (which could take minutes, hours, or days depending on a nominee's ability to get six votes).

Now, under normal circumstances, the city would have a duly elected or appointed mayor during that transition period, so it's not terribly important that there is a gap in who serves as president of the board. Even when the mayor moves on to higher office, as is the case this year, the City Charter calls for the president to serve as acting mayor until the board can appoint an interim mayor.

But because of Newsom's extralegal meddling in city affairs after his scheduled departure, Chiu doesn't become acting mayor as he should for those five days. So what happens if Brown has his sudden heart attack at 12:05 pm on Jan. 8 and Newsom, seeing that his stunt may cost him the chance to be governor, rushed to Sacramento to take his oath of office before Brown flatlines?

In that circumstance, the Mayor's Office would be vacant and so would the board presidency, leaving San Francisco leaderless until the board can come up with six votes each for a new mayor and board president.

Now, is any of this likely? No, but this and lots of other hypothetical possibilities illustrate just how selfish and irresponsible that Newsom and the downtown-based instigators of this drama are being, despite their hypocritical public claims to caring about the city and trying to prevent political games.

But as Sacramento Bee columnist Dan Walters recently wrote: “It's impossible to predict how Newsom's power play will turn out. It's a stormy beginning for his new career in state politics – but given the irrelevance of his new office, it may also be the high point.”


You guys endorsed Newsom for Lt. Governor. Now you're calling him "petulant," "hypocritical," "selfish," and "irresponsible." That's a pretty big shift in perspective.

Who are the downtown-based instigators?

Posted by The Commish on Dec. 22, 2010 @ 1:39 pm

Commish, we used these adjectives to describe Newsom periodically throughout his mayoral tenure, and getting rid of him early was a big reason why we endorsed him for this office, just as Chris Daly did. And the "downtown-based instigators" are mostly the SF Chamber of Commerce and San Francisco Chronicle, which has repeatedly urged Newsom to delay his swearing in, but there are others as well. Make no mistake: downtown is scared to death that they'll lose an ally in Room 200 and that the city might end their tax breaks and make them help pay for the public transit services that their employees rely on. The Mayor's Office is a powerful post and Newsom has his marching order to prevent progressives from taking it by any means necessary.

Posted by steven on Dec. 22, 2010 @ 4:32 pm

But you endorsed Janice Hahn in the primary, did you not?

Does your argument not fall apart just about here ->

Posted by Patrick Brown on Dec. 22, 2010 @ 9:32 pm

That's true, Patrick, because we really did think she would be better in the job and because we had reservations about furthering Newsom's political career. But in the main event, Newsom seemed better than Maldonado and we would get rid of him early, so it seemed like an irresistible two-fer. I'm still glad that we endorsed him, but he's certainly demonstrating what a complete douchebag he really is, and I hope that California voters see that, as I'm sure they will as this stand lingers on and makes news in the new year. Too often in politics these days, we're given only a choice between two bad options and we try to choose what seems the least bad, as was the case here. Because Newsom will still be gone in a matter of weeks, and that's something for San Francisco to celebrate.

Posted by steven on Dec. 23, 2010 @ 11:50 am

(shakes fist in the air) Why you!

(stamps foot on the ground) Well, I oughta!

(punches fist through hat) Dag-nammit!

Posted by marcos on Dec. 22, 2010 @ 2:00 pm

I now know who you are describing, it is non other that the North beach Gremlin....Aaron Peskin, very accurate!

Posted by Patrick Brown on Dec. 22, 2010 @ 6:25 pm

AND...suppose Martians landed at 12:03 AM on January 5th and said 'Take us to your second in command'. THEN what would we do? Newsom's machinations have cosmic significance.

Posted by Freddie on Dec. 22, 2010 @ 2:07 pm

When will the liberals learn that the tightest arguments lose in the face of superior political firepower every time? The answer to that is not to tighten up the arguments some more and keep reiterating them, but to figure out how to build political firepower.

Posted by marcos on Dec. 22, 2010 @ 2:18 pm

I couldn't agree more, but when I look at the players and organizations on the "left" my response is best of luck on that one.

Posted by Mark Barnes on Dec. 23, 2010 @ 7:29 am

" the excitement of returning to the governor's office gives Jerry Brown, 72, a fatal heart attack"

Hmmm...would the SFBG have made a point of including his age at that point if he was 42 instead of 72? Are all older Americans suspect of falling over without notice at any minute?

Another sign of 'Progressive' hypocrisy.

Posted by Freddie on Dec. 22, 2010 @ 2:20 pm

It's not ageist to imply that 72-year-olds die suddenly far more often than 42-year-olds. It's an actuarial reality.

Posted by steven on Dec. 23, 2010 @ 11:53 am

Newsom, the supes, and the mayoral wannabes are all showing how cheesy they can be.

How did the city end up with such low-grade governing class?

Why is there no progressive alternative to this banality?

Posted by Arthur Evans on Dec. 22, 2010 @ 2:20 pm

Face facts - there's nothing you can do about Newsom delaying his swearing in. The CA constitution is designed to ensure an orderly transfer of power no matter which office is vacant - that's what constitutional government is all about.

The Guardian's chronic underestimation of what a crafty politician Newsom is has really come back to bite ya'll in the ass. It's now not only likely that he'll delay his swearing in but that he'll appoint Chiu to the vacant AG position once Kamala takes the oath of office - and then he'll appoint someone to Chiu's vacant BOS position immediately after.

I can't think of a better scenario to send our extremely popular mayor off to Sacramento than what I've just outlined. Or one more likely to cause heads to pop off in the Guardian's offices.

Posted by Lucretia Snapples on Dec. 22, 2010 @ 2:21 pm

Tim is just remonstrating and foaming at the mouth at his impotence as events swirl around him.

He wants the Progs to behave badly and appoint a liberal mayor who would never be elected by the people. But when the opponents of that idea play their ace, Tim complains that they are "behaving badly".


Posted by Tom on Dec. 22, 2010 @ 4:26 pm

All progressives need is an existing supervisor who is continuing to the next Board along with the new progressive supervisor to come forward and say the following, "we owe it to San Francisco to choose a progressive Mayor, and given the unenviable city finances and faltering bond rating the outgoing administration is leaving San Francisco in, we are conferring separately with our colleagues to act in the best interest of San Francisco. The Interim Mayor decision will be made soon. We will have a progressive Mayor." Such a statement would show it's possible to put community above the transactional self.

That statement would take all of the Newsom drama and bully boy tactics off the table. It only takes 6 votes to choose the Interim Mayor.

The issue is not Newsom, it's getting six progressive supervisors to act as team. Sure it's not easy because there are many great choices, and let's fact it there are a couple of formidable male egos to navigate around but this is a decisive moment. Either there is a working progressive majority on these Boards or there isn't. If Newsom had a clear idea there were he would be gone by now.

Consider the possibilities: Sophie Maxwell could vote no on a progressive nominee instead of moving to table; Dianne Feinstein could focus her conservative energies on reviving the Democratic Leadership Council; Nevius could consult the Mayan calendar and a vacant political act could just pack his bags.

Posted by Guest on Dec. 22, 2010 @ 9:19 pm

The fact that a court found that the start date of some judge's term didn't occur until the day on which he was actually sworn in has jack-nada to do with the legal question of whether the mayor of SF has the legal authority to delay the date on which he is supposed to be sworn into another elected office in order to PREVENT THE CURRENT EXISTING board from selecting an interim mayor.

Under the City Charter, the right to select an interim mayor belongs ONLY to the CURRENT Board of Supervisors.

In this context, "CURRENT BOARD" would mean the board as it is constituted on the DAY ON WHICH THE MAYOR IS SUPPOSED TO TAKE THE OATH OF OFFICE FOR LT GOV (and that is Jan. 3 -- one day before the last scheduled meeting of the CURRENT Board of Supes).

The Remcho legal memo is an example of some pretty under-handed/intellectually dishonest legal analysis. This is so, because the cases that it relies on in coming to the conclusion that the mayor CAN delay his swearing-in date cannot legitimately be construed to provide legal authority for such a conclusion.

Basically, the Remcho Memo author conflates the following question: "Can the mayor delay his swearing-in date?" with the question that the cases he cites actually address, which is, "What is the actual start date of an elected office?"

(Answer: the date the new official is sworn in, not the day on which the office becomes vacant)

These two questions are NOT THE SAME LEGAL QUESTION.

To explain further:

The question is NOT "on what day does the term of office start for lt gov?"

Rather, it is "Can the sitting mayor of SF delay the date he is supposed to be sworn in to another elected office in order to thwart the ability of the Board of Supervisors to take an action that the City Charter defines as ONLY theirs to take?"

On that question, we still have not been provided with any legitimate legal opinion or analysis.

Posted by Guest on Dec. 22, 2010 @ 9:47 pm

I agree with you on this Guest.

Posted by Mark Barnes on Dec. 23, 2010 @ 7:51 am

Sorry to rain on your parade, but the controlling legal authorities do not contain any provisions for motive, which are political, not legal questions.

The ruling elites control the SF DA's office as well as the state attorney general's office. I'd not count on the Superior Court bench to help us out here either.

This is not going to be settled by superior debating techniques, rather by lining up votes on both the old and new board of supervisors. By the time that Newsom's shenanigans are litigated, unsuccessfully, the game will probably be over.


Posted by marcos on Dec. 23, 2010 @ 9:00 am

Interesting legal analysis by Guest and solid political analysis by Marcos. It's certainly true that the law doesn't contemplate a manipulative political stunt like this or give any explicit authority for it, but Newsom has always been hostile to the rule of law, from his decision to issue same-sex marriage licenses to asking for the resignations of all city employees and appointees, even those serving fixed terms. But appealing to his morals and legal obligations won't work, we simply need the six votes to tell him to fuck off.

Posted by steven on Dec. 23, 2010 @ 12:03 pm

Why continue, like a broken record, to rail against downtown? These downtown "instigators" employ me. Many companies have left SF because of it's cheaper to do business elsewhere. Guess what, when companies leave, so do jobs. When jobs leave, then the tax base is depleted and the services paid for by these taxes suffer.

Why does the SFBG and others fail to see that having business here (along with some of the problems associated with this) is far more beneficial than not?

I'm NOT for giving businesses a free pass but I also think SFBG and others have incessantly railed against downtown "instigators" for years and years. It just seems as if they are trying to make us hate the "rich/establishment/the man" whatever. This isn't 1969 anymore.

Posted by Guest on Dec. 23, 2010 @ 7:49 am

That's right, it isn't 1969 anymore, the situation is far worse now in terms of the wealth and income gaps and the power that rich corporations and individuals have to corrupt our political systems and make the mainstream media subservient to their wishes, making the Guardian and its perspective more important than ever. We recognize that the need for jobs includes government jobs and jobs at the small businesses whose interests downtown regularly works to subvert. Indeed, these jobs are far better for the local economy and employ far more San Franciscans than those bestowed on us by the big downtown corporations whose agenda Newsom and other fiscal conservatives push.

Posted by steven on Dec. 23, 2010 @ 12:12 pm

This is the best idea that I have heard in a long time. These 80 CAL Billionaire's don't need legislation to donate the money to California's budget. They can just take out their check books and send it in. Simple, no expensive election campaigns, efficient and effective budget resolution- from the rich and powerful to the kids of tomorrow.

Posted by Guest on Dec. 23, 2010 @ 8:54 am