City Attorney: Felony Conviction Doesn’t Disqualify Bracco from Holding Public Office

City Attorney Andrew Faber issued a memo titled, “Analysis of Felony Conviction as Possible Disqualification for Public Office,” in response to a request by city staff regarding Councilman Dion Bracco’s eligibility to hold public office.

The request came after the publication of a Feb. 22 article by the Gilroy Dispatch, which details a 1990 felony conviction Bracco received for possession of methamphetamine for sale.

According to the memo, Faber was asked to evaluate Bracco’s eligibility based on his felony conviction, and in accordance with state law and the Gilroy City Charter. Councilman Bob Dillion reportedly requested the formal determination, according to another Gilroy Dispatch article.

“At the [city council] meeting Monday night they asked my opinion and asked to see a memo, so we wrote a memo,” Faber said during a phone conversation Wednesday morning.

So, What's Faber's determination? Does Bracco’s 1990 felony conviction disqualify him from holding public office? The short answer, Faber said, is no.

“The requirement of holding office is that you’re a registered voter and live in the jurisdiction, and Dion is not disqualified based on events relayed by the Dispatch in their article,” he said. “The basic rule is that in California, in order to hold public office, you have to be a registered voter, and a prior conviction for felony does not mean you can’t be a registered voter, and that’s what Dion apparently has, so he is not disqualified for holding or seeking office in virtue of a public felony conviction. That’s not the rule in all states, but it is the rule in California and that’s what the memo says.”

According to the memo, there are three ways that a felony conviction can render a person disqualified from holding public office under state law:

• Being imprisoned or on parole for the conviction of a felony. This would disqualify a person because candidates must be registered voters at the time that nomination papers are issued, the memo states. However, once the imprisonment or term ends, the person is no longer “disenfranchised” and therefore is eligible to seek or hold office.

• A person is permanently disqualified if he or she has been convicted of one of a number of enumerated offenses that provide for the permanent disqualification of public office. Offenses that demand permanent disqualification are crimes specified in the Constitution and laws of the state. The memo states, “There are a number of ‘laws of the state’ that provide for permanent disqualification from holding office as a result of a conviction. Those laws proscribe office-related misconduct, such as election or legislative fraud, taking or giving bribes, or other self-dealing.” (Specific penal code sections are available in the memo.)

• An elected official is removed from office if he or she is convicted of a felony during his or her term. The felony conviction does not permanently disqualify the person unless the conviction is for one of the enumerated offenses, the memo states.

As for the Gilroy City Charter, an office holder would have to be convicted of a felony during their term of office, which would become vacant upon a conviction, according to the memo.

In the memo's conclusion, Faber states, “We have no independent knowledge of the facts relating to a prior conviction of Dion Bracco. However, assuming that the information reported in an article titled, Councilman Felony Drug Conviction, published by the Gilroy Dispatch on February 22, 2012 is correct, Bracco is not disqualified from holding public office in the City of Gilroy, under either State or the City Charter, as explained in the analysis.”

For detailed information, refer to the attached memo.