Mayor Must Forfeit Post on Day of Sentencing

California state 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 experienced in government law.

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 before the verdicts were returned, Stuart Swett, a deputy San Diego 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 grounds 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,” explained 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.

Challenges to Ouster

Nonetheless, attorneys said challenges to Hedgecock’s automatic ouster could be raised 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 principle 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.”

Complications Cited

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 against his removal before the Nov. 6 sentencing date, 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 “the obvious questions” in the next day or two.

There have been few tests of the law because most convicted officeholders have resigned before the law’s provisions could take effect, lawyers said.

For instance, former Lt. Gov. Ed Reinecke resigned in October, 1974, after being convicted by a Washington court of lying to the Senate Judiciary Committee about ITT’s financial 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.

City Council Decision

After Hedgecock leaves office, the City Council has 30 days in which to decide to appoint a new mayor or call a special election to fill the office. The consensus of council members Wednesday was that there would be no movement to appoint Hedgecock’s successor.

Witt said the mayor’s office must be filled within 150 days of Hedgecock’s exit. Assuming a special election was called, a runoff would be necessary if no candidate received more than 50% of the primary vote.