Update, Oct. 4: The mayor’s office has provided 10 more preemptive resignation letters.
The City Attorney today published an opinion that Mayor London Breed’s practice of requiring commissioners to submit a letter of resignation as a condition of appointment is “inconsistent” with the City Charter — but not prohibited by it.
The letter comes on the heels of reporting by Michael Barba of the San Francisco Standard, in which Police Commissioner Max Carter-Oberstone revealed that he had been made to submit such a letter — and he subsequently moved to rescind it. That revelation came after Breed called Carter-Oberstone “a liar” when he declined to vote for her preferred candidate for Police Commission president, a charge he vociferously protested.
In response to a public records request, Mission Local received more than three dozen preemptive resignation letters penned by mayorally appointed commissioners.
Undated resignation letters
Emails rescinding letters
We have additionally contacted numerous commissioners, some of whom were appointed toward the beginning of Breed’s term, who confirmed they were made to sign preemptive resignation letters. The pattern behind the letters is difficult to discern; on some of the very same commissions, certain members confirmed they signed such a letter while others said they were not asked to. On other occasions, commissioners simply declined to sign the letter, and said there were no repercussions.
“I was never asked to do that,” said Port Commissioner John Burton. “And if somebody asked me, I wouldn’t do it. But that’s me; I’m kind of an asshole.”
The public records request received today by Mission Local, however, reveals that some of Burton’s colleagues on the Port Commission did submit such letters.
It is not clear if the letters were insisted upon based on concerns about the individual appointee, or if it was applied inconsistently due to disorganization in the mayor’s office — or both.
Commissioners today received a letter from the mayor’s office stating that “According to a directive from Mayor Breed, the previously submitted letter of resignation has been rescinded. Thank you for your continued service to the City and County of San Francisco.”
Carter-Oberstone told Mission Local that he was made to sign an undated letter of resignation when reappointed to the Police Commission, but not when initially appointed. This rendered the claim that this was a pro-forma move difficult to accept.
“I was very concerned,” he said. “As I wrote in my letter rescinding my letter of resignation, I had real misgivings about the legality of the process. At the time, it felt like I was being singled out.”
The City Attorney’s four-page opinion found that preemptive letters of resignation were likely legally unenforceable, especially for commissioners who cannot be unilaterally removed from a body by their appointing authority. And, while the City Attorney’s Office found the practice of demanding an appointee sign such a letter was not illegal on its face, it suggested the practice is not tenable:
Although the Charter does not prohibit appointing authorities from requesting pre- appointment letters of resignation, such requests are inconsistent with the purposes underlying the Charter’s removal provisions and could threaten the independence of appointed officials from undue influence by the Mayor, the Board, and other appointing authorities. For these reasons, appointing authorities should not require resignation letters before or as a condition of appointment for commissioners who may only be removed for cause or with the concurrence of a City body other than the appointing authority.
Lawyers contacted by Mission Local said the city could still face legal scrutiny, however. Jim Sutton, an authority on government and election law, said that preemptive resignation letters were problematic for commissioners, including Police Commissioners, who can only be removed from a body with Board of Supervisors’ approval.
“I think the resignation letter arguably violates the Charter,” he said. “It’s an end-run around the Board.”
With this in mind, some of the resignation letters sent Mission Local’s way are especially problematic. Both Raquel Bito and Bianca Neumann of the Building Inspection Commission earlier this year submitted such letters. But, prior to June’s Proposition B, there was no means of removing an unwilling sitting commissioner.
Carter-Oberstone expressed similar concerns in his August letter rescinding his preemptive resignation: “It is an unmistakable attempt to circumvent the Board of Supervisors’ role under the Charter … And aside from arrogating to the executive branch a power reserved for the legislature, contracting around this Charter provision also has the effect of diminishing the independence of mayoral appointees, reducing public transparency into the removal process, and diminishing the Mayor’s accountability for any decision to remove a Commissioner.”
Sutton also felt the city was now in potential legal peril due to potential encroachments of the Disinterested Zeal Doctrine. In essence, this is the expectation that commissioners in positions of adjudicating matters are making their decisions solely based on the official materials presented in writing and during live proceedings.
The presence of a trove of preemptive resignation letters hanging over commissioners like a sword of Damocles, however, prompts questions about the decision-making process of mayoral appointees. Especially for someone on the wrong end of a 4-3 commission vote, Sutton notes, questions may arise regarding the due process rights of the parties appearing before various city commissions.
While Breed’s office has claimed she will cease this practice, Supervisor Dean Preston is still moving ahead with a Board of Supervisors hearing and may introduce legislation to formally curtail it.
The concept of mayors leaning on their appointed commissioners is as exotic as pulling a rabbit from a rabbit hutch. But the notion of preemptively requiring mayoral appointees — appointees the mayor cannot unilaterally remove — to sign a resignation note struck political veterans as novel.
Veterans of Mayor Ed Lee’s administration said that if he had done this, he wouldn’t have had such difficulties in cajoling Mel Murphy to exit the Port Commission. A generation ago, Mayor Gavin Newsom publicly requested all sitting commissioners to resign; most he reappointed, but some he did not.
Larry Mazzola, Sr., who served on the Airport Commission for nearly 30 years under five mayors, said he declined to submit such a letter to Newsom. And he was reappointed. Several times.
“I wouldn’t do it. There was no reason for me to resign unless I was doing something wrong. I just kept serving,” he recalled.
Mazzola said Breed’s practice of requiring preemptive letters “is absolutely wrong. It takes the commissioners’ independence away. You serve day-to-day and you can’t vote your own conscience.”
His contemporary, John Burton, agrees.
“I think it’s kinda horseshit.”