disservice of the city and county of san francisco. with that said, in terms of making a motion, i am flexible on this in terms of timing, i would move that we continue this item which has been continued many times to the second meeting of the board of supervisors switches on the third tuesday of january -- which is on the third tuesday of january. four members of the board of supervisors to will be here on saturday. you will have -- it happens every two years. you will have an important decision to make on saturday.

in that discussion, because of the issues that have been raised many times by our legal counsel around conflict of interest, i think that this is a discussion about leadership witching clue as members that we have seen here. the discussion should take place in a serious and earnest way. this goes through many rounds of voting and into the evening. sometimes that happens. at this point in terms of where we are at in this process, i don't think that we are ready and i would make the motion to continue this item to january 25th. >> supervisor daly has made a motion to continue. is there a second? >> thank you, mr. president.

i would like to thank all of the members of the audience to have been coming here to comment on this item to that position it on this issue. as a member of the board of supervisors, i certainly have not in any way cherished the very difficult position that all of us are in. the fact is that we have the duly enacted mayor of san francisco decided to run for higher office. because of that position, we find ourselves in this predicament. i would like to ask some questions of legal counsel because i do believe that notwithstanding the fact that we have had publicly an editorial

from the san francisco chronicle and we have had this issuance from at least a decision on the part of marin is some to delay his swearing-in as a tenant governor, i would like to get some clarity on some of the issues that arise in light of that very unique circumstance. we have here a mayor that descended to run for lieutenant governor -- that decided to run for lieutenant governor and he was successful. as the california constitution provides, he would assume the office of lieutenant governor on january 3rd. so, i was wondering if through the chair, through the president, if the co-counsel can

tell us exactly when it is that a mere -- that mayor newsom becomes the lieutenant governor. >> i will need to enforce our rules to not applaud or express opposition to statements that are made either by the public or by our colleagues. i would like to ask you to respect that. >> the question of whether or not jehad mayor knew some is attended governor is ultimately a question of state law. because he has not taking his

oath of office as a tenant governor, he has not assumed that position and therefore remains as mayor of the county and city of san francisco. >> is that based on specific case laws? my understanding is that even though there are some cases that touch on some of the issues that i raised, this issue, this is a case of first impressions in terms of when a person actually becomes lieutenant governor of the state of california. is that true? >> that's true. >> what is the reasoning as to why given that there is a case that has exactly decided this issue that fact may renew some is indeed today -- said that in fact mayor newsom is indeed

today the mayor. >> without having taken the oath, he does not assume the opposite and cannot exercise the powers of lieutenant governor. >> are those cases said that specifically deal with the lieutenant governor or to those deal with other elected officials? >> other elected positions. >> through the chair, in those elected positions, is there a provision of the california constitution that provides when the effective date of the appointment is? >> no, i don't believe so. >> the reason i'm asking is because there is a notion that somehow legally it is a given that mayor knew some -- newsom can remain as mayor. in fact, this is a case of first

impression. we don't have law that specifically addresses the issue of when a person actually becomes a tenant gov.. the cases that outside counsel is relying upon our cases that in fact deal with a different set of circumstances where there is no elected office and where the -- provides a specific date. that is the challenge and the problem with this predicament that we find ourselves in. notwithstanding, -- indicated that where is the fact a legal question here. to the president, who ultimately has the final say on whether or not it is the case and that mayor knew simpl -- newsom is the mayor of san francisco?

>> please to not express a pause or opposition. >> it is our opinion that legally may year newsom is still mayor. as the appointing authority suggests, this board in forests the instance of the the issue would be ultimately resolved through all proceedings that this board in the first instance, if it believes a vacancy exists, could take this to a point. >> that we understand what you're saying. to the extent that this is a case of first impression, not withstanding what you cited, this board could infect aside that a vacancy exists with respect to the mayor's office

and can proceed it to act. >> based on our best readings of the law, and no for the office must be taken and the existing case law that is out there. we believe that the mayor is currently mayor and is not the 10 governor because he is not taken the oath. >> what would happen if the board appointed an interim mayor today?

>> this has happened in the past. there were 8 people entitled to be the mayor of san francisco. in that particular case. the california supreme court said that the courts will determine who is the the fact america-was in fact the mayor. >> who would win that lost it in the event that something like that what happened? >> we have given our opinion. right now, mayor newsom is the

mayor. >> you would have standing to answer the legal questions that we have discussed? >> one possible group might be for a successor mayor appointed by the board to take the oath of office including the title of the office of mayor, to claim that legal title or to take actions and people affected by those actions could bring in a writ of mandate. -- was appointed to the salary of that position. >> do you have an opinion as to how long the mayor can wait to take the oath of office as a

tenet of an error? -- as lieutenant governor? >> could he wait a month, two months? >> there is the specific provision. there used to be a provision of state law that was repealed in 1954 that provided that an officer must take the oath within 10 days. in the absence of that provision, there is not a specific provision that requires that it will be taken at a certain date. this will be an issue really for the california attorney general. >> in your research, have you found another situation where example when someone elected to a position like a tennis

governor has delayed taking the oath of office? >> we were able to find someone in regards to the constitutional -- of the state of california. >> never to your knowledge of history as a lieutenant governor done this? >> never to our knowledge has a the tennessee gov. done this. >> what about the attorney general? >> never in any of the cases that we have looked at. there might be some history that we're not aware of. >> what constitutes a constitutional office. >> secretary state, comptroller. >> i just wanted to get some clarity on those legal issues. the statement from outside counsel speaks for itself. what is happening here is indeed

unprecedented. we know that a person who is duly elected has done what the mayor has decided to do today. we have heard that this is a case of first impression, and there is cases that can't be relied upon that in the years, those cases to not a treacly addressed the issues or the office of lieutenant governor and to not deal with the circumstances that are here with the california constitution prescribing 8 date on which the term commences. that is the unprecedented nature of what we are facing. to the extent that we find ourselves in this very difficult

position. but we hear from outside counsel illustrates why this is so difficult, that we have faced this before, not just in san francisco and in california. >> shifting to get a better handle on process, if we don't want to shut down the discussion because we cannot make a conclusion today on the interim question, then the options for continuing the discussion would be the exact same body of -- that is of before you today.

that would be best displayed by taking a recess to a date certain before saturday is what i am getting from this discussion potentially. i'd just want to make sure that we lock in what this that is. >> we believe that this is what the board has an option of doing because this refers to a procedural question under your rules of operation. we would defer to the opinion of the clerk. we believe the board has the option. >> can you discuss the statutory authority and the lieutenant governor has that should the decision be made by this body,

to what extent does his influence range that probably adds to the motivation as to why he has extended his time. >> it is our opinion as previously stated by my colleagues that the mayor continues to hold the office. we have faced this on the california constitution and the requirement that we read in the california constitution that an officer, even if elected, needs to take the oath of office the been ordered to assume the office. at such time, the oath of office is taken, the mayor has not vacated his current position, that is a statutory authority that we are relying on and looking at the cases that have been interpreted. with regard to the impact, our opinion is that the mayor

retains his position and we don't see a vacancy yet. if the board was to take an action to designate someone had as the successor mayor, we see that action as an advanced determination, not as a final determination, and either this board or a successor board would need to ultimately take a final action to either ratify or to making the appointment at such time as a vacancy occurs. >> ratification potentially if something was decided upon today. hypothetically, if a different next tuesday. >> that is correct. -- hypothetically, if elected next tuesday. >> that is correct. hypothetically, if the mayor has vacated his current position. >> the we were to undergo

deliberations saturday morning, does new -- make any determination with the existing body? >> thank you, mr. president. following up on some of the questions, in terms of actual president, just today the secretary of state, he was elected in november, she did not take the oath yesterday. she delayed the oath. she wanted to be sworn in by the newly elected attorney general. right there is your president. she is a constitutional officer. she delayed her swearing-in. let's not say there is no precedent. wait until you read the paper tomorrow, the secretary of state got sworn in after january 3rd. i appreciate a summary of the

conclusion of the question in with council but in that summary, he failed to point out one thing, we heard four times in his questioning, four specific times from our outside counsel, the people we all unanimously brought in here to provide counsel, four times. that is legal and that the mayor is still the mayor. he has not vacated the office and will not until he takes the oath. i've heard that on four different occasions. if we want to ignore the legal advice that is on the record, that is setting us up for a bit of a pratfall and i would strongly asking the question again. the mayor is the mayor until he hears the oath.

the mayor was delayed and this just happened today. >> this is not seem like we're discussing my motion which has been properly been made and seconded. but i will withdraw my motion for now. >> i would from my notion gossip i have withdrawn my motion so that we can continue with this. >> if i man, let me ask the question, is there a possibility that a court in the state of california could have a different opinion than the one you have about the legality of the major stain on? is that possible? >> the answer is yes. >> thank you very much. that is the point, that these can differ and to the extent

that we are stating where we are, that indeed that while there is an argument that he is illegal mayor, there is also an argument that he is not and that is a problem that has been created here, reasonable minds have indicated that if could in fact reach a different conclusion on this issue which is ultimately an issue of first impressions. thank you. >> i'm going on the -- here and the state constitution of the state of california. when barack obama was sworn in on january, 2009, the actual of office had been somewhat on gold and the president had to go back and actually formally to it again. he was not actually sworn in on

that date as is an operation but the following day. the opinion was that he was still the president of the united states on the swearing in ceremony. i am wondering if council has looked at that issue in comparison to what we have here in california and in san francisco. >> an interesting history. no, we have not looked at the federal example. >> seeing possible that there could be a similar opinion because the constitution said that barack obama had to assume office on a certain day and that would be the time that he would be president of united states, regardless of when the oath of took place. then, we would have different language in the state of california and that would give the mayor of latitude to be able to declare when he felt

compelled to assume office as lieutenant governor. >> our opinion is based on the california constitution and the cases in california that is interpreted the provision regarding taking the oath the federal constitutional requirement is a different one and we have not interpreted that. accord could look at this issue and try to interpret the california constitution. >> is a possibility that there could be the same standard that was used because of declaring barack obama was the president of united states and that the mayor is actually ted governor. >> as i understand it, there was never a judicial determination of what the consequence of what the taking of the oath incorrectly was. there really is not any clear

precedent in that situation. there was an opinion apparently rendered. i don't know the opinion. it is possible that a court in california could look to the federal constitution and to try to interpret this in that context. as far as we know at this point and time, we are dealing with the california constitution and cases that have interpreted the requirement of an oath in california. >> one more precedent that has not been discussed, gov. schwarzenegger won a recall election. this requires that you take that oath. the governor did not take the oath. he delayed as well because he had to get his financial house in order, he had a lot of

financial conflicts of interest. he had to have it in a blind trust and that took some time. now you have two presidents. there is not as much questioned as you would like to say there is. we have legal counsel very clear and 80 that will take this >> i wanted to ask another question to outside counsel and i understand the point that the supervisor is making a i also know that we heard from outside counsel and reasonable minds can we disagree. if this is the case through the chair that a court finds that mayor and use some in fact is not legally the mayor today, we know that there is also a vacancy in the district attorney's office. what happens if the mayor made

that vacancy and the court found that in fact he was not legally the mayor of san francisco. what would happen to that appointment? >> there is an officer doctrine which with a firm decisions made by someone who is acting as an officer even if they did not hold legal title that would at least protect the day-to-day decisions and functions occurring in the ditch attorney's office regardless if many months later, a card determined if that person did not legally hold title to the office. this is potentially possible that we have not researched the question that there could be two

competing candidates holding the title as the district attorney and this would give rise to a proceeding similar to what i described earlier with regards to if there was two competing mares. >> can you explain this? you can have two people claiming to be the appointed bishop attorney in the scenario i am talking about? >> this has happened from time to time for various state and can take and local offices. there is lock where for a variety of reasons, there might be two individuals claiming to hold an office simply because an appointed body has said that there is a vacancy and the pirates in, it does not believe there is one and they are contesting that. the general procedure is a warrant proceeding which is the exclusive remedy to try to figure out who has legal title to the office. under california state law, the

proceeding can only be brought once you have permission from the attorney general. the attorney general's office would give leave to sue perhaps one of the two individuals and then that would go to court and the court would make a determination as to hold title to the office. >> thank you very much. the reason i wanted to ask the question is because what we are talking about is that the aims and purposes and the vacancies also the fact that we have a vacancy at the district attorney's office. we are talking about 80 offices under the charter of the city and county of san francisco that have been located here and that is pretty significant. thank you. >> thank you. >> just a quick observation. we have been talking about an unprecedented situation and circumstance here. i am of the opinion that