Ethicalego Speaks

The San Francisco Chronicle reported that Mayor Gavin Newsom intends to delay swearing-in as lieutenant governor from January 3 to January 8 unless the Board of Supervisors appoints a successor he approves of before its last scheduled meeting Jan. 4. This delay will continue him as mayor and prevent the current Board of Supervisors from selecting his replacement before newly elected supervisors take their seats. This threat by Newsom is unbelievably arrogant and represents an unethical manipulation of California's constitutional rules by an elected official for a personal goal.

California Constitution Article 2, Section 20, says, "Terms of elective offices provided for by this Constitution, other than Members of the Legislature, commence on the Monday after January 1 following election." Nevertheless, one law firm confirmed legal precedent for Newsom's action saying that his term begins when he takes the oath of office and not necessarily on the Jan 3, 2011 date specified by the state constitution. Nobody reported the opinion of the Attorney General and Gov.-elect Jerry Brown's.

It would not surprise me if there were a court ruling that allows terms of elective office to commence at a time different from the time set in the state constitution. We are a nation without an ethical foundation for our laws or for societal conduct. This means that constitutional rules, laws and regulations have only the meaning applied by a judge or appellate court. They have no force or protection based on ethics or meaning as written. This may sound contemptuous of law, but it is true. This is why attorneys with a sound understanding of laws still spend excessive time and money studying previous court decisions rather than relying on the printed law. It reflects the immorality of our society that it is more likely than not that a law as written is not how courts will enforce it.

A smooth and uninterrupted transfer of the powers of elective office is a founding principle of American democracy and critical for its success. The Legislature passed laws like Art 2, Sec 20 above that sets terms of elective office laws to help guarantee this uninterrupted transfer of power. In addition, Calif. Constitution article 5, section 11 says, "The Lieutenant Governor, Attorney General, Controller, Secretary of State, and Treasurer shall be elected at the same time and places and for the same term as the Governor." This section shows a clear mandate for the Lieutenant Governor to commence his term on January 3 with the Governor. The intent of those two rules is so clear a third-grader can understand them. Allowing officeholders like Lieutenant governor-elect Newsom to decide when their term of office begins creates confusion in this crucial area of power transfer. In addition, it sets a standard for abuse.

No California law empowers a person abandoning elective office midterm to influence the selection of his or her successor, because allowing this influence does not serve the people's interests. Nevertheless, Newsom's alleged threatened action tries to create a legal loophole for him to delay taking office as lieutenant governor and to meddle in San Francisco's transfer of power for the mayor's office. This threatened manipulation of election and term laws by Newsom shows the danger to democracy of a relaxed interpretation of laws to satisfy one person's exaggerated sense of importance.

Newsom's threat and demand does not surprise me. I noted this tendency of excessive self-importance when he directed approval for gay marriage in San Francisco. However, I was surprised when I read an editorial in a major newspaper like the San Francisco Chronicle that encouraged this type manipulation. Even more disconcerting is how easily California and San Francisco voters accept this attack on their democracy. In the end, voters get the type leaders and government they nurture.