Newsom's delay tactic would create a legal mess

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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.”