Terse Limits: Why Alioto-Pier Is Not Termed Out In 2010

Constant Readers,

Last week, I saw a story in the Examiner about how City Attorney Dennis Herrera's office issued an opinion letter saying that Supervisor Alioto-Pier is termed out and therefore ineligible to run for re-election in 2010.

Like a hug from my creepy Uncle Jabbo, something about that just didn't feel right. My nerd alarm went off and I began to dig into this issue. (Spoiler Alert: As is sometimes the case, I disagree with the City Attorney's office.) Allow me to lay the groundwork here:

According to section 2.101 of the San Francisco Charter:

"No person elected or appointed as a Supervisor may serve as such for more than two successive four-year terms. Any person appointed to the office of Supervisor to complete in excess of two years of a four-year term shall be deemed, for the purpose of this section, to have served one full term. No person having served two successive four-year terms may serve as a Supervisor, either by election or appointment, until at least four years after the expiration of the second successive term in office."

Now, section 2.101 has been part of the City Charter since at least 1995 when the Charter was republished (and likely for much longer). And, as you can see, it contemplates a person being appointed to office and sitting there for more than two years. However, in 2001 voters (overwhelmingly) passed Prop C, which amended the Charter to limit the length of time an appointee to the Board (and some other offices) can serve before running for reelection. Specifically, appointees must now run for reelection within one year, but not less than 120 days, from the date of their appointment. So, it is now impossible for a "person [to be] appointed to the office of Supervisor to complete in excess of two years of a four-year term."

Which brings us to the case of Supervisor Alioto-Pier. She was appointed to represent District Two in January 2004 to fill the seat left empty when Mistermayor was elected. Pursuant to the requirements of Prop C, she ran for reelection several months later, in November of 2004. Because Mistermayor had 2 years left on his term of office, the term that Alioto-Pier ran for and won was for two years. (She was re-elected in 2006.) Not even in my beloved bizarro world that is San Francisco could this be construed as being "appointed to the office of Supervisor to complete in excess of two years of a four-year term."

And yet, that appears to be what the City Attorney's office is arguing. According to the Examiner article, the City Attorney's opinion letter maintains that "someone who is appointed and serves more than two years of a four-year term will be considered to have served a four-year term 'whether they stand for election during that period.'"

Ahem. With all due respect: that don't make no damn sense. The Charter says "appointed...to complete" not "appointed and serves" or "appointed and subsequently elected."

Because of the one-year limitation imposed by Prop C, Supervisor Alioto-Pier was not, and could not have been appointed to complete more than 2 years. It is what we lawyer-types call a "legal impossibility." Any 6-year-old can tell the difference between being given an office and having to run for it (appointment vs. election).

Let us think of this another way: according to the City Attorney's "logic", if Alioto-Pier had lost the election in November 2004, the winner (who was not appointed) would have been eligible to run again in 2006 and 2010. But, because she was appointed to serve for several months, the City Attorney's office would have us believe that she cannot run again in 2010. Horsepucky.   

NOTE: Lest you think it unfair for Alioto-Pier to get to serve 10 years, remember that Supervisors Daly and Maxwell were each elected for two-year terms in 2000 (the two-year terms were part of the shift from at-large to district elections per Prop G passed by voters in 1996) and each was able to run for two additional four year terms in 2002 and 2006. Prop G recognized that persons "who only serve and initial two-year term shall not be deemed to have served a full term for purposes of the term limit established in section 2.101." (SF Charter sec. 13.110(f).)

At the end of the day, we have a $338 million dollar deficit and no shortage of work for the City Attorney's office. Let us not waste resources fighting this losing battle in court. The true arbiters of term limits, the voters, should be allowed to decide in November 2010.

Otherwise, I'll be forced to send Uncle Jabbo down to the City Attorney's office to explicate further.

It won't be pretty.    

--Melissa

Comments

[sfmike]

Can't we just recall the overprivileged witch and be done with it instead?

[Be_Devine]

My heart goes pitter patter for your eloquent analysis.

[Greg]

It is interesting to note that Ms. Pier is arguing that she should be allowed another term, period. Not "be eligible to run for re-election and if elected serve the people of the district" but "another term."

Now, given how deferential folks in this town are to power (!) I can see why people can say "oh but of course she'll run unopposed aside from some random person who puts their name on the ballot as a frat party joke" but still. It sure does assume a lot.

And we all know what happens when we assume! :-)

[sfwillie]

Again I urge:

Amend the Charter: eliminate appointed incumbency, i.e.,an appointee to a seat cannot run for that seat.

We have three awful duds appointed by Newsom. Yuck!

[Kathryn Hill]

What bugs me is that she has the lowest attendance record of the BoS members, and apparently spends most of her time at her house in St. Helena and not in her condo in SF, and she wants to serve, again?

And I've been planning to touch on the whole wheelchair ramp brouhaha on my own blog. WIll gt around to it.

BTW, hi - found you through Brittney. I'm from Cobb County, as well.