Hedgecock Conviction Scenarios Examined

San Diego City Atty. John W. Witt leafed through a sheaf of papers stamped “confidential.” Finally, with a pained expression, he looked up.

“We’ve been fielding questions on so many different scenarios,” he said wearily. “So many things can happen, I am quite as confused as anyone else.”

For the last month, Witt and some of his staff have been thinking the unthinkable. They have been researching what might happen if Mayor Roger Hedgecock is convicted of all or some of the 13 felony perjury and conspiracy counts with which he is charged.

Witt cautions that he won’t issue a ruling until after the jury decides whether Hedgecock illegally funneled money into his 1983 mayoral campaign. That verdict is not expected before next week.

Still, Witt, speaking carefully and consulting the pile of memos in his lap, said he believes that there are some circumstances in which Hedgecock could be convicted of felonies and still remain in office.

It is also possible, Witt said, for Hedgecock to be convicted and required to vacate his office--but then be allowed to run in the special election to fill the mayoral seat.

All this despite a state law more than 100 years old that says that an officeholder found guilty of a felony must vacate his seat. And despite a 1973 San Diego municipal ordinance declaring that if an officeholder violates the city Election Code, he must vacate his seat and may not hold office for five years afterward.

If the possibilities sound contradictory, they are, Witt and other lawyers say. In the simplest case, Hedgecock is acquitted and remains mayor. At the other end of the spectrum, he is convicted of all 13 felony counts and--as soon as he is sentenced--is automatically removed from office.

Another relatively simple situation, Witt suggests, would be if Hedgecock were convicted, and legally required to vacate the office, but for some reason refused to leave.

“If he were to resist, I’d probably go down and get a court order to physically remove him from the office,” the city attorney says matter-of-factly. “Just send the sheriff down and have him carted away.”

But the issue becomes murky, Witt and other lawyers say, if a jury convicts Hedgecock of felonies, but the trial judge, believing the acts committed warrant a lighter sentence, decides to sentence him instead for committing misdemeanors. In this case the conviction is also treated as a misdemeanor conviction, not a felony, Witt says.

It is confusing, too, if Hedgecock is convicted of felonies under state law that are not also covered by the municipal code. In such a case, Hedgecock would have to leave office, Witt said--but he might be able to run for mayor in the special election resulting from his removal.

“We have determined that a conviction of a felony does not, per se, render a person ineligible to seek office,” Witt said. For instance, if the mayor were convicted of a single felony perjury count, he would have to leave his office.

But, Witt said, “He’s not precluded from running for office unless he’s sentenced to the state penitentiary,” which would eliminate his right to vote. If he were no longer “an elector,” he would be barred from running again for office as well, Witt said.

The analysis that concludes that Hedgecock could remain in office if convicted or seek the mayor’s post again startles his critics, some of them lawyers. And it makes Common Cause President Mark Zerbe mad.

“If he’s convicted, I think he should step down,” said Zerbe, a student of San Diego’s election law who also notes that he is not an attorney. Still, Zerbe said, “The intent of the (municipal) ordinance is clearly that if the mayor is convicted, then he is out.”

But attorney Terry Knoepp, who helped re-write the city’s campaign financing laws after the council was accused of accepting bribes in the 1970s, agrees with Witt.

“I think it’s accurate to say there are some charges (against Hedgecock) which could be reduced to misdemeanors,” Knoepp said. “The question is: Are these related to his official duties (as mayor) and, if not, could he remain in office?”

In Knoepp’s view, the mayor could stay on if convicted of misdemeanors. “I think so,” Knoepp said. “I think so.”

Also, Knoepp said, he believes that if there were “any glimmer of staying in office,” San Diego’s aggressive young mayor would fight to stay.

Hedgecock’s aides and attorneys say they haven’t investigated the question and have no plans to do so until a verdict is rendered.

Still, one attorney who has worked for the mayor agreed with Witt that the answer was far from clear.

If the mayor were convicted of a felony, “it looks like a slam-dunk,” the attorney, who asked not to be identified, said; state law would clearly force him to vacate the office.

“But anything other than that, it’s an open question,” the lawyer said. “You can read the campaign ordinance five times and get five different answers.” California’s public officials have rarely been removed from office. And when they have, they have usually fought hard to stay on.

In San Diego history, only two elected officials have been forced out. The first was City Atty. Clinton L. Byers, who in 1936 was found guilty of falsifying his expense account. He overcharged the city by $7 for a trip to Los Angeles and, over his vehement objections, was removed from office.

More recently, City Councilman Jess Haro was convicted in federal court of misdemeanor customs fraud. His 1978 conviction itself didn’t require him to step down as councilman, but when Haro began serving a 90-day jail term, he began missing council meetings. Under the City Charter, a council seat is vacated after eight unexcused absences. So when Haro missed his ninth meeting, the council declared his seat vacated.

If Hedgecock is convicted of any charge, his future as San Diego’s mayor appears to depend on the sentence he receives, Witt and other attorneys said.

Under Section 1770 of the California Government Code, any officeholder is automatically removed from office once he is convicted of a felony. Even if the officeholder appeals--and is later found to be innocent--he is removed from office after a trial judge finds him guilty. “An office becomes vacant . . . (upon the officeholder’s) conviction of a felony or of any offenses involving a violation of his official duties,” that code section says.

By law, the officeholder may stay in office for a short time after a felony conviction, but he is automatically removed “when trial court judgment is entered”--that is, when he is sentenced.

The timing of such a removal was clarified in a state Supreme Court court case involving former Lt. Gov. Ed Reinecke. Reinecke in 1974 was convicted of perjury--of lying to the U.S. Senate Judiciary Committee during Watergate-related testimony. At first, he vowed to remain in office while he appealed.

Meanwhile, Helena Rubenstein International filed a taxpayer’s suit seeking to have the lieutenant governor’s office vacated as of the date of the jury verdict. Ultimately, Reinecke stepped down one day before he was sentenced.

In June, 1977, the California Supreme Court ruled on the Rubenstein suit, finding that a public official could stay past the jury’s verdict but must leave once he was sentenced. Until sentencing--when the trial judgment was entered--”Reinecke was entitled to exercise the powers and privileges of office,” California’s high court said.

Locally, the San Diego Municipal Code states that any violation of its provisions, including a violation of campaign financing laws, voids an election, vacates the office and bars the official from serving in elective office for five years after conviction.

But if the verdict were just a general finding of misdemeanor perjury or misdemeanor conspiracy without specifically noting city campaign law violations, it might allow for a different result.

“He can’t be said to have been convicted of violating the Political Reform Act or anything,” Witt said, so the mayor could probably stay on.

If, however, the misdemeanor convictions clearly arose from Hedgecock’s “performance of his official duties”--from violations of the city’s campaign financing ordinance, for instance--the municipal code would require that he vacate his seat, Witt said.

Still, Hedgecock’s political career might not be over even then, Witt said: “He could run for state Assembly--or for President.”

Witt emphasized that he would prefer not to think about the possibility of the mayor being convicted until he has to. “The problem is, you really don’t want to commit a lot of resources to what’s essentially a wild goose chase,” he said.

He said he would rather take a wait-and-see position, because, “after all, the verdict may be acquittal on everything. And all this won’t be necessary.”