San Diego Mayor Todd Gloria’s sweeping COVID-19 vaccine mandate, overwhelmingly approved Monday be a vote by the city council, applies to several groups that had previously been under the radar, including elected officials.
Now, though, there are questions as to whether an elected official can be removed from office for not being vaccinated.
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Some legal experts say they can’t.
“You can only remove a city official — an elected city official — for malfeasance or dereliction of duties, and that would require a crime of moral turpitude or violation of their duties," attorney Bob Ottilie told NBC 7 on Tuesday. "They would have to be derelict in their duties — not showing up for meetings — you can’t do it over a vaccine,” said
There are 11 elected officials in the city of San Diego, including the mayor, city attorney and nine city council members. According to the mayor’s office, they are all vaccinated.
Ottilie said provisions for terminating an elected official are laid out in the city charter.
According to Section 301 of the Charter, which is titled "Removal for Cause," elected officials and members of the board of education of the San Diego Unified School District are subject to removal for cause for dereliction of duty or malfeasance in office. It does not include a provision for having a Covid-19 vaccine.
“As it applies to elected officials, they will not be able to remove them if they do not get vaccinated," Ottilie said. "The charter will trump any ordinance, and it’s clear as can be.”
The mayor’s office, however, disagrees and provided this statement to NBC 7:
“The ordinance does not prohibit an unvaccinated individual from seeking an elected city office. Once in office, however, elected officials are legally required to comply with the same rules as any other city employee. Councilmembers can be, and have been, removed from office for a variety of offenses, including failure to attend council meetings. Failure to comply with the mandate or receive a medical or religious exemption in violation of the San Diego Municipal Code could prevent an unvaccinated elected official from remaining in office.”
As to whether the provision impacting elected officials could be grounds for legal action that could impact the entire mandate, Ottilie said it’s not likely.
“I think the ordinance would be upheld as it applies to city employees," Ottilie said. "City employees are at-will employees. They’re free to leave, whenever they want, and they can be terminated. They have a condition of employment that’s been imposed on them now, and they’re going to have to comply with it or lose their job, and I think a court would uphold that if challenged.”