The narrow loophole that lets Breed control both branches of government

City Attorney Dennis Herrera says that London Breed can be both mayor and Board of Supervisors president for the duration – because of one little loophole in the law.

Attorney Dean Preston has questioned whether Breed can do both jobs, since the City Charter makes clear that mayor of San Francisco is a full-time position.

I’ve looked at the ballot handbook for the 1977 Charter amendment, Prop. E, that has the relevant language, and it’s fascinating. The measure was introduced by then-Sup Quentin Kopp, who according to my historical sources, was angry that Mayor George Moscone was still part of a law firm and used to dictate memos to his legal secretary from City Hall.

(UPDATE: Kopp tells me that is inaccurate: “That Charter amendment resulted from the late and great Joe Alioto’s practice of dictating law office material to Ann Racich, his mayoral secretary, in Room 200, City Hall, almost every Saturday. He had a thriving law practice. George Moscone had been in the law firm of Bridgett, Hanson et al, but not as a partner or associate, and was not part of a law firm in 1977 or 1976 after his election as Mayor. George had nothing to do with my characteristically successful ballot measure. Please correct the misinformation of your historical sources.” I stand corrected.)

Whatever the reason, the language of the measure is very clear: Mayor is a full-time job, and the occupant can’t do anything else. Presumably, that includes being a supervisor.

“With the extensive responsibilities of government management and the complexity of issues in need of mayoral attention, it is imperative that the Mayor serve solely in that capacity,” Kopp’s ballot argument – which would serve as legislative intent in a court proceeding – states. “This would not only remove the hint of conflict of interest, but more importantly, it would guarantee that full time is spent on the business of providing efficient and effective San Francisco government with no possible distractions.”

The Charter provides that the Board of Supes president becomes acting mayor in the event of a vacancy – but in at least the last 70 years, no acting mayor has served for more than a few days. Dianne Feinstein was acting mayor for eight days after the death of Moscone; at that point, the board appointed her mayor and she resigned her supervisorial seat.

When Gavin Newsom resigned to become lite guv, the board quickly appointed Ed Lee as mayor.

Preston argues that the charter never foresaw a situation in which the board president could be acting mayor for months at a time.

So how do you address the conflict? According to John Cote, the city attorney’s spokesperson, it comes down to one issue:

As acting mayor (not interim mayor), Breed never takes the official oath of office. So she’s not really the mayor. Sort of:

As our office has opined before, there is a distinction between Acting Mayor and Mayor.  I’d refer you to this memo. The President of the Board of Supervisors becomes Acting Mayor by operation of law when the Mayor’s position becomes vacant and serves in that capacity until a successor is selected.  They are not, however, the Mayor. They are the Acting Mayor. As we noted in the memo: 

Because the Board President serves as Acting Mayor by virtue of her tenure as Board President, she does not take an oath of office to enter on execution of the Office of Acting Mayor.

The President of the Board is not sworn in as Mayor because they are not the Mayor.  They are still board president with temporary authority to wield the power of Mayor, even though they don’t hold that office. 

The acting mayor, under the charter, has the full powers of the mayor.

But because of that technicality – she never took an oath – Breed can write the 2018-2019 budget, appoint the committee that reviews that budget, vote on that budget, and sign that budget.

It’s important to separate this issue from the politics of Breed and the mayor’s race. Whatever your opinion of Breed, it’s hard to argue than any one person should have control over both the executive and legislative branches of government for more than a short period of time in an emergency. 

Kopp, as a member of the Ethics Committee, can’t comment on the issue.

But Preston said the opinion doesn’t make sense:

I have not heard back from the City Attorney’s office in response to my letter. 

The response you received says that “They are still board president with temporary authority to wield the power of Mayor, even though they don’t hold that office.”  This is inconsistent with the City Attorney’s previous statement that the Acting Mayor assumes the duties and obligations of the Mayor. Cote leaves out the obligations side, one of which is to only do the job of mayor.

If Breed can assemble six votes, she will become interim mayor. If not, she should vote for another interim mayor and return to being supervisor. What she cannot do is serve as Acting Mayor, Board President and Supervisor for six months.

This will all come up next Tuesday, when the board votes to consider appointing an interim mayor.