Despite recent efforts to convince
Mayor Bob Filner to resign due primarily to claims of sexual harassment, Filner
is going nowhere. There are two reasons why Filner will remain Mayor for the
foreseeable future. First, he is a fighter. It's a hallmark of his lifetime in
politics. He doesn't want to leave and he doesn't believe he should leave, so
he won't. The second reason Filner will remain in the Mayor's office is because
City law says he can.
Pursuant to the San Diego City
Charter – often referred to as the "constitution" of the City – the
only circumstances under which a Mayor can be removed from office are death,
resignation or recall. In California, City Charters are sacrosanct. A
voter-approved charter provides cities like San Diego supreme authority over
municipal affairs. In fact, according to the California Constitution, a charter
city’s law concerning a municipal matter supersedes state law governing the
same topic.
Specifically, the California
Constitution, Article XI, Section 3(a) states, "[t]he provisions of a
charter are the law of the State and have the force and effect of legislative
enactments." Further, the state Constitution specifically provides that
absolute authority is granted by a city charter to provide for the removal of a
"municipal officer or employee," as well as the officer's
"qualifications" and "tenure of office" (Article XI,
Section 5(a)).
Unless Mayor Filner drops dead,
he's not going anywhere. Since the charter limits the options concerning the Mayor's removal, even if the recent civil lawsuit by a former Filner
employee is tried and finds Filner liable of sexual harassment, he can't be
removed from office.
All the political posturing in the
world will not force Bob Filner from office. No civil lawsuit will suffice. A
criminal charge is unlikely. Any charge that fails to put him in state or
federal prison, thus revoking his voter registration, is insufficient under the
City Charter to boot him.
It's not about due process. It's
not about facing his accuser (or accusers). It's not about public perception
and it's not really about the law as we generally perceive it. It's not about whether Filner can continue to govern the
City. The only thing that determines whether Bob Filner is forced from office is the City Charter.
Mayor Filner has taken resignation
off the table. He doesn't appear to be anywhere near death's door. That leaves
recall. A recall certainly will affect
the day-to-day operations of City Hall. Some politicians who stand to
benefit may be willing to put the City in that situation, as well as those who
have been most vocal about the Mayor stepping down. However, for those of us
with no direct stake in this distasteful situation, a recall may be the most
onerous option.
"a recall may be the most onerous option."
ReplyDeleteDisagree with this. At this point the City is in a complete holding pattern. Really NOTHING (left, right, or center) outside of the mundane or the very small strokes can get done. Council still seems to lacks institutional capacity to bring forward BIG stuff - in large part because they are reliant on executive branch to provide underlying data to craft policy. Filner is essentially powerless - and has adopted a bunker mentality. Perhaps events peter out and he can actually resurface but I am guessing it will be plaintiff of the week for at LEAST the rest of the summer. So he is incapable of fighting for a proposal (or opposing it). Stuck.
So if you think San Diego is PERFECT as it is and that events can not change that than I guess you believe that a recall is "onerous". If you believe that there are things that could be done to advance the City - be they policies on the right, left or center, you probably conclude that you are right he is not leaving except by recall and are ready to get those forms circulating and get on with it.
Chris is right about the Charter making Filner essentially unreachable except by recall. His relative protection against any other action also will have interesting impacts on Allred's lawsuit vis-a-vis the City -- as I understand it there was no complaint filed with the City before the suit was filed, and even if she had filed a complaint, what could the City do?? Very little in the way of discipline or corrective measures (except that which was taken, which was to place her in a different post). Jan's ultra vires argument may also prevail, but in any event where's the City's liability when it is powerless to do anything? Except on some sort of strict liability theory, I don't see that the City did anything wrong, or that a jury would think it did.
ReplyDeleteAs it stands, we are now back to a de facto City Manager form of government. Maybe not so bad. But I think recall is the only option; and if it fails, may we never let ourselves forget that this is what happens when we look the other way simply because "he may be a perv, but he's our perv."
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