The embattled mayor of San Diego has lost the support of many of his own allies. A recall election is still possible, though such an effort would face high hurdles. But the city’s own regulations appear to protect Bob Filner from state laws that would otherwise provide several avenues for his enemies to push him out of office.
He seems to be immune, for example, from a state process that allows a grand jury and district attorney to seek his removal due to misconduct. Attorneys say other state laws don’t apply either, like one that allows a judge to declare elected officials physically or mentally unfit for office.
But there’s a loophole. To be mayor, Filner has to be registered to vote. And therein lies some potential for legal intrigue down the line, although any attempt to push Filner out of office on that front would be unusual to say the least.
Here are some questions and answers about the protections that Filner has against attempts to remove him from office.
What are the main ways he could leave office?
The rules are set by San Diego’s City Charter, a kind of constitution that can only be revised by voters. According to the charter, the mayor can vacate his office by dying, resigning or being recalled by voters.
How does the state allow for removal of public officials?
The state allows elected officials to be removed for a variety of reasons, some of which are listed here.
Physically or mentally unfit officials are ineligible for office, for example, as are those who get committed to “a hospital or sanitarium by a court of competent jurisdiction as a drug addict, dipsomaniac, inebriate, or stimulant addict.” So are those convicted of a felony and some other crimes.
There’s also a process by which a grand jury can work with a district attorney to ask a judge to remove an elected official because of misconduct. The misconduct doesn’t have to be a criminal offense.
This strategy isn’t new to San Diego: In 1999, the county grand jury accused Mayor Susan Golding of misconduct and sought to force her to undergo a trial that could have led to her removal from office.
The district attorney at that time, Paul Pfingst, however, refused to assist the grand jury, and nothing happened to the mayor.
But state law doesn’t apply?
Attorneys don’t think so. It all has to do with San Diego being a charter city with its own laws that supersede those of the state when it comes to things like elections.
City law has precedence due to “a conscious decision to keep the state from interfering with the strictly municipal affairs — and specifically the removal power — of charter cities,” said Roman Hoyos, an associate professor of law at Southwestern Law School in Los Angeles.
In other words, the state wants cities with their own charters to do their own thing.
Could city law allow more leeway to remove officials?
Yes, but voters would need to change it.
San Francisco, which is a city and a county, has a charter that allows elected officials to be removed for misconduct, including conduct that “falls below the standard of decency.” This came into play last year when officials tried to remove the San Francisco sheriff from office after he was convicted of a misdemeanor in a domestic violence case.
City leaders ultimately allowed him to stay on the job.
Could the mayor be convicted of a crime and stay in office?
It’s possible, at least in the case of a misdemeanor conviction. The crucial point is that voters have the job of deciding who represents them, Hoyos said.
“Removal is a serious issue, and should be presented to the stakeholders — i.e., voters — for their determination, even if an official has been convicted of a serious crime,” he said. “It may well be that voters don’t mind having a convicted criminal as mayor. I’m sure we could probably find a city or two in the United States where that has in fact occurred. Might the voters be OK with an alleged sexual harasser as their mayor? Well, why not ask them?”
Of course, it’s a dicey proposition for a judge to remove an elected official even when it’s technically possible to do so. “The judiciary gives great weight to the vote of the people,” said Leslie Devaney, the city attorney of Del Mar and the Riverside County city of Murrieta and a former litigator with the San Diego city attorney’s office. “It’s very reluctant to undo in a lawsuit what the electorate does. And our judges are elected. Far be it for them to say they’re going to make a decision to take away the power of the people who got them their jobs.”
What about voter eligibility?
The City Charter says the mayor must be a registered voter in San Diego. That’s where state law kicks in, since it defines who gets to vote and who doesn’t.
Registered voters cannot be in prison, on parole, serving a state prison term in a jail or on “post-release community supervision.” And registered voters cannot have been “found by a court to be mentally incompetent.”
Filner has a misdemeanor on his record from a run-in at a Washington D.C.-area airport in 2007. But misdemeanors don’t affect a person’s right to vote in California, even if a person is in jail. Neither does probation.
It’s conceivable that the mayor could be removed because he has become ineligible to vote due to being punished for a crime or found mentally unfit. But it would be up to a judge. “The city couldn’t simply, by virtue of a council vote or otherwise, determine that he is unfit to hold office,” Devaney said.