Check From Dominelli Was Key to Jury’s Guilty Verdict : Lawyers Say Removal Could Be Challenged

California law requires that San Diego Mayor Roger Hedgecock forfeit his office Nov. 6, when he is scheduled to be sentenced on the 13 felony charges on which he was convicted Wednesday, according to city attorneys and several California lawyers.

Hedgecock, however, could fight removal from office by mounting a constitutional challenge to the law, lawyers said.

In an opinion prepared for internal city use, Stuart Swett, a deputy city attorney, concluded that the mayor’s office would become vacant upon entry of judgment of a guilty verdict against Hedgecock on any of the 15 felony counts he faced. Entry of judgment is part of the sentencing proceedings in a criminal case.

The legal basis for Hedgecock’s removal from office is Section 1770 of the government code. It reads, in part:

“An office becomes vacant on the happening of any of the following events before expiration of the term: . . . (The officeholder’s) conviction of a felony or any offense involving a violation of his official duties. An officer shall be deemed to have been convicted under this subdivision when trial court judgment is entered.”

California legal precedent holds that an appeal of the guilty verdict would not delay Hedgecock’s removal from office, Swett said.

“The rationale is that the people are entitled to have someone in office who is not clouded by a conviction, whether they turn it over on appeal or not,” said Michael Aguirre, a former federal prosecutor and a San Diego lawyer.

No action beyond the court’s entry of judgment is necessary to vacate the mayor’s office, according to City Atty. John Witt. No papers need be filed or motions made in court, he said.

Nonetheless, attorneys said challenges could be raised to Hedgecock’s automatic ouster before appeal on the grounds that he was denied full recourse to the law.

Lawyers for the mayor could argue that “to impose such a penalty in the absence of the exercise of the right of appeal results in a deprivation that is not constitutional,” said San Diego attorney Byron Georgiou, who was legal affairs secretary to former Gov. Edmund G. Brown Jr.

“The general principal ought to be that every criminal defendant in our society is entitled by right to one appeal of their conviction,” Georgiou said. “If Mayor Hedgecock were to choose to appeal and his conviction were reversed, a grave injustice would result if he would already have forfeited the mayoralty on the basis of a conviction found to be unlawful or unconstitutional in some respect.”

A reversal of the conviction after Hedgecock’s ouster could pose unprecedented complications, said John Cleary, a San Diego defense attorney. “How does he get relief?” Cleary asked. “Because certainly you can’t remove the person who replaced him (as mayor) to put him back in office.”

Thus, if Hedgecock and his lawyers decide to fight the forfeiture of his office, they probably would need to seek an injunction blocking his removal before Nov. 6, Georgiou said.

Hedgecock has not said what he plans to do, and his attorney has not been available to answer questions. In a brief press conference after the verdict was read, the mayor said he would answer “very obvious questions” in the next day or two.

The law requiring the ouster of convicted officials has undergone few tests, lawyers said, because officeholders frequently have resigned before its provisions could take effect.

For instance, Lt. Gov. Ed Reinecke resigned in October, 1974, after being convicted by a Washington court on a charge of lying to the U.S. Senate Judiciary Committee about ITT’s underwriting of the 1972 Republican National Convention. The conviction was reversed after Reinecke left office.

Had Hedgecock been convicted on fewer charges, the effect on his job would have been less clear.

Conviction merely on the misdemeanor conflict-of-interest charge against him might not have provoked automatic ouster.

That charge stemmed from an allegation that Hedgecock, while a member of the San Diego County Board of Supervisors, accepted payment of a legal bill from developer Harvey Schuster while Schuster had a project before the board. Because the incident predated Hedgecock’s election as mayor, it might be argued that it could not subject him to ouster from the mayoralty, Swett said. In any case, he was acquitted of that charge.

Also, if Hedgecock had been convicted solely of conspiracy, and if Judge William L. Todd Jr. were to reduce the charge to a misdemeanor at sentencing, Hedgecock would not have been disqualified from holding office, according to the opinion by Swett.

The offense would have been committed by Hedgecock during his candidacy, and thus could not be construed as a “violation of his official duties” requiring the loss of office, Swett concluded.

The Verdict

Here’s how the jury of eight women and four men, who deliberated for 6 1/2 days, ruled on each of the 16 counts against Mayor Hedgecock:

Count 1: Conspired with J. David & Co. principals Nancy Hoover and J. David (Jerry) Dominelli to funnel illegal campaign donations into 1983 mayoral campaign. Nearly $360,000 came from the now-bankrupt J. David & Co. investment firm and Hoover’s personal accounts, and the money was laundered through Tom Shepard’s political consulting firm, which ran Hedgecock’s 1983 campaign. Guilty of conspiracy.

Count 2: Knowingly filed a false campaign report (covering July-Dec., 1981) by failing to disclose all campaign contributions received from Dominelli, Hoover, Shepard, the consulting firm of Tom Shepard & Associates and J. David. Innocent of perjury.

Count 3: Knowingly filed a false Statement of Economic Interest (covering Jan.-Dec., 1981) by omitting $3,000 in income from J. David and $500 in free legal services received from businessman Harvey Schuster. Guilty of perjury. Counts 4-8, 10 & 12: Knowingly filed false campaign disclosure statements by failing to disclose all contributions received from Dominelli, Hoover, Shepard’s consulting firm and J. David, for periods covering Jan.-June, 1982; July-Dec. 7, 1982; Aug.-Dec., 1982; Jan. 1-29, 1983; Jan. 30-Feb. 26, 1983; Feb. 27-April 16, 1983; April 17-June 30, 1983. Guilty of all 7 perjury counts.

Count 9: Failed to disclose $16,000 in income received from Hoover for the sale of an interest in an El Cajon house in a Statement of Economic Interest (covering January-December, 1982). Guilty of perjury.

Count 11: Failed to disclose income in excess of $250 received from Hoover in the form of interest payments on a note owned by Hoover in a Statement of Economic Interest (covering Jan. 1-May 19, 1983). Guilty of perjury.

Count 13: Knowingly signed a false amended Statement of Economic Interest (covering Jan.-May, 1983) Innocent of perjury.

Count 14: Failed to disclose income in excess of $250 received from Hoover in the form of interest payments on a note owned by Hoover in a Statement of Economic Interest (covering Jan.-Dec., 1983). Also failed to disclose, either as a gift or loan, a “substantial sum of money” from J. David that was used to renovate Hedgecock’s State Street home in San Diego. Guilty of perjury.

Count 15: In an amended Statement of Economic Interest (covering Jan.-Dec., 1983), failed to disclose income in excess of $250 received from Hoover in the form of interest payments on a note owned by Hoover. Also accused of failing to disclose, either as a loan or gift, “a substantial sum of money” from J. David that was used to renovate Hedgecock’s State Street home. Guilty of perjury.

Count 16: Accused of allegedly participating March 9, 1982, in a conflict of interest by voting as a member of the county Board of Supervisors on a project involving businessman Harvey Schuster after Schuster had paid a $500 legal bill for Hedgecock in Nov., 1981. Innocent of conflict of interest.