As of Nov. 3 – when San Diego voters passed Measure D – the San Diego Unified school board has a way to remove board members from office. The board, however, doesn’t appear likely to use the process against board member Kevin Beiser.
Back in April 2019, Beiser had just been accused of sexual assault and unwanted touching by four men . Prominent Democrats all over town – including all four of his fellow board members – called for him to resign.
But Beiser refused, and his board members were left with no recourse.
Partially in response to the Beiser scandal, members of the City Council placed Measure D on the November ballot. It gives school board members the power to initiate a recall election when a fellow board member has committed dereliction of duty or been convicted of a crime. (Beiser has denied the allegations and has not been convicted of a crime.)
All four of Beiser’s colleagues would need to vote for removal in order to initiate a recall election against him. But at least two of his colleagues signaled they’re not prepared to do so.
“I see it as being a tool to deal with situations in the future. The rationale for proposing removing someone is for severe situations (conviction of a felony, gross dereliction of duty), so that [it] is not used arbitrarily by the Board,” wrote board president John Lee Evans in a text message.
“If this measure had been in place at the time, I’m not sure how the board would have handled the situation, but currently he has not been convicted of a felony nor is he failing to fulfill his duties as a board member,” Evans wrote.
At the time of the allegations, Evans vocally advocated for Beiser to step down and bemoaned the reality that the board had no recourse to force him out .
Measure D – which is now enshrined in Section 301 of the city charter  – does not give board members blanket authority to remove someone from office. It presents two clear paths. Beiser clearly has not been convicted of a crime, which rules out one avenue for invoking the removal process. Whether Beiser has been derelict in his duty, however, is a slightly more subjective question.
On the most basic level, Beiser has attended to his duties. He has gone to meetings, participated in discussions and voted on public policy. But some argue he hasn’t been able to perform his duty on a deeper level.
Tamara Hurley lives in Beiser’s district. While arguing in favor of Measure D at a City Council hearing in 2019, she called Beiser a “lame duck.” Basically, Hurley agued, because everyone wanted Beiser to resign, there was no way he could effectively represent her on the board. He wouldn’t be able to get initiatives passed that would be important to her and Beiser’s other constituents.
“We are stuck with a lame duck person, who is no longer representing our interests and cannot represent our interests,” she said.
Board vice president Richard Barrera does not share that interpretation. “I don’t think anything in Measure D applies to Kevin,” he said. “It talks about committing a crime … or being negligent in your duties. But neither of those apply.”
Will Rodriguez-Kennedy, who is chairman of the San Diego County Democratic Party, still thinks Beiser needs to go. “Measure D does allow for [him to be removed] and I would encourage the school board members to do that,” he said.
City Councilman Chris Cate – who helped get Measure D on the ballot this year – acknowledges it’s not entirely clear whether Measure D could be used to remove Beiser from office.
“We wanted it to be a high bar,” said Cate. “Because we didn’t want this to be subject to political gamesmanship.”
Cate did not rule out the idea that Measure D could be used to remove Beiser. The school board and its attorneys would ultimately have to decide if a case could be made that Beiser was not fulfilling his duties, Cate said.
One final wrinkle: Even if the school board members were willing to initiate the removal process, based on the dereliction of duty clause, it appears a judge would have to sign off on it. Section 301 of the city charter says a court must adjudicate the question of whether dereliction of duty has taken place.
A spokeswoman for City Attorney Mara Elliott noted that a civil court would make this determination. Some kind of initial action, alleging that a board member is not fulfilling his or her duties, would need to be filed to begin the process, spokeswoman Hilary Nemchik said.
Beiser – who has said that the allegations against him were politically motivated – did not respond to a request for comment. His term expires in December 2022.