Can Breed be both mayor and supervisor? Maybe not

Acting mayor faces legal and political challenges as the campaigns start to shape up for June

Dean Preston, a lawyer and District Five resident, is asking city attorney Dennis Herrera to rule on whether London Breed can act as both mayor and supervisor – and he puts out a strong legal argument that no one person can hold both jobs for anything but a very short period of time during an emergency.

Can one person be both mayor and board president — for six months?

Herrera – who may also be a candidate – advised the board upon the untimely death of Ed Lee that the Board of Supes president – Breed – would assume the job of acting mayor while holding her current board seat until such time as the board choses an interim mayor.

There is, Herrera said, no time frame for that decision and no requirement that the board act at all. Under his initial advisory, Breed could hold both roles until a June election.

However, Preston notes, the City Charter bars the mayor of San Francisco from holding any other job – including the job of supervisor. So if Breed has all the duties and responsibilities of the mayor, she can’t also be on the board.

“In that case, because the Acting Mayor is barred by the Charter from fulfilling the duties of a supervisor, a vacancy results as a matter of law, and a new supervisor [for D5] would need to be appointed.”

The charter provides for the board president to become acting mayor if there’s a vacancy in the top office. But Friends of Ethics, a good-government advocacy group, noted today that “the charter never contemplated any period of time when events would place the same person as Board President and Acting Mayor for any period of time, much less for months.”

Among other things, that would give Breed the ability this spring to draft a city budget, appoint the chair and the members of the boards Finance Committee, and have almost complete control over the budget. Friends of Ethics calls that “one-person rule and an end to political accountability.”

Preston cites Charter Section 3.100, which provides that the SF mayor “shall devote his or her entire time and attention to the duties of the office, and shall not devote time or attention to any other occupation or business activity.”

He notes: “The residents of District 5 deserve a supervisor who is legally permitted to do the job of supervisor, and one who is focused on fulfilling the duties of that full-time job.”

Herrera’s Office had no immediate comment.

The question of Breed’s role is becoming both legal and political. Four sitting supervisors have endorsed Mark Leno for mayor. Sup. Mark Farrell is widely considered a candidate. And now Sup. Jane Kim is in the race.

That makes six supervisors who have a strong interest in not seeing Breed run for mayor as an incumbent while also sitting at D5 supe.

If she could somehow get six votes to become interim mayor – tough, since she can’t vote for herself – she would have to resign her D5 seat.

Breed, it appears so far, is the candidate who has the backing of the Ed Lee crowd, including Ron Conway. If she runs, as everyone thinks she will, she faces a challenge: Lee’s popularity as mayor was radically low, and while his personal popularity was and is high, a candidate who runs as a supporter of the former mayor’s policies and an ally of his supporters will have a hard time convincing voters that the status quo is an acceptable platform.

It’s no surprise that Leno’s slogan is “a new direction for San Francisco” or that Kim told me today that she will be “the candidate who will promote the most different vision from how this city has been run for the past 17 years.”

Kim told me that the “income and wealth gap underlies every single issue” that faces the city.

She also told me that she supports the idea of appointing a caretaker mayor – having Breed in both jobs, she said, “is a clear conflict of interest.” And while we all got tricked by Ed Lee promising to take the role and then running, this time around it’s actually possible. The filing deadline for the June election is Jan. 9th, which is also the next Board of Supes meeting. If the board waits until 5pm to appoint an interim mayor, that person won’t be able to run in June.

Leno told me he also supports the idea of an interim mayor, and said that the idea of a legislator – Sup. Breed – also acting as the chief executive was not a good idea. (Leno agrees with me that the mayor should not have the authority to appoint supervisors, either.)

So it seems entirely likely that, one way or the other, the board will at least consider filling the job of mayor with a short-term appointment, possibly as soon as Jan. 9. It could, of course, even be sooner: Six supes can call a special meeting. And while it’s the holiday season, the governance of the city doesn’t stop – and the political campaigns are already starting.