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City Attorney residency memo from 2001 Chris Daly situation
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573 views15 pagesDaly Memorandum
City Attorney residency memo from 2001 Chris Daly situation
Uploaded by
Joe EskenaziCopyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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/ 15
City AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY
Dens J Henne Jon Give
City Aitomey Deputy City Attorney
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THowas Boo
Chef of vestigations
Det DAL no estaase
En amen oye 9
MEMORANDUM
TO: Dennis J. Herera
Gig Atomey
FROM: _ Jon Giver
Deputy Cty AYtomey, Head of Ethics Team.
‘Thomas Boyd
Gist of Inveigatifas
DATE: August 17,2009
RE:___ Review of Supervisor Chrstpher Daly's Residen
In iphtfquston ai st oprisos Dees and on eet
‘, to Supervisor ues, ths Office nly reviowe
the he cue ip aside of San Frnctogs Distt Sin the ds’ e repens onthe
Gitye elected Board of Supervisns, Indoing ao, lie Office reviewed tovorde and epoke wih
more than a dozen witnesses, including Supervisor Daly, his wife, his roommates, and his
neighbors. Applying established legal principles to the facts we have abtained, we conclude that
Supervisor Daly currently remains a resident of District Six, as required by the San Francisco
Chatter. As described further below, the facts here present & much diferent case from the
question of Supervisor Edmund Jes qualification fr ofice, where it was clear bused 0 his
ffce's investigation in 2007 that Mr Jew filed even to establish residency in his ditt.
1. SUMMARY
‘The basic facts do not appear to be in doubt. Since January 2001, Christopher Daly has
served asthe elected Supervisor from District Six. From November 200% until May 2009,
Supervisor Daly and his wife, Sarah Low Daly ("Ms Low Daly") lived in « condominium they
‘ved together on Stevenson Street in Distict Six. Ia February 2008 the couple purchased a
‘house in Fairfield, California, and in April 2009 the couple purchased a second house in
Fairfield, In late May, Ms. Low Daly and the couple's two children moved from the Stevenson
Stret residence into One of the houses in Fairfield. According to Supervisor Daly, Mis. Low
Daly and other witnesses, and consistent with the records we reviewed, Supervisor Daly has,
‘continued to spend the majority of his nights at Stevenson Steet, staying in Fairfield primarily
‘on the weekends. Supervisor Daly has sated publicly and to this Office that he intends to
continue living atthe Stevenson Steet residence.
‘Charter section 13.110 requires that ezch member of dhe Board of Supervisors must have
resided in the district that member represents for atleast 30 days immediately preceding the date
hae files a declaration of eandidacy for the office, and must continue to reside in the district
throughout his incumbency. The Charter and local elections code incorporate the state Elections
Code, under which the place where an official "resides" ~or that person's "residence’ ~ is,
Gavi 1 Dx Camon8, GooDUET FLAG. Room 234 Sx FntoRco, CANORA 94102
Recor (48) 5544700 Facet: (415) 84-4745
rei xa Tone 087640700 CITY AND COUNTY OF SAN FRANCISCO (OFFICE OF THE CrTy ATTORNEY
Memorandum,
To: Dennis J, Herrera
DATE: August 17, 2009
PAGE: = 2)
RE! Review of Supervisor
topher Daly's Residency
defined to mean domicile. To establish a "domicile" for elections law purposes, an official must
physically inhabit a place with the intent to remain there. A person can have only one domicile
at time, soto change one's domicile requires both action and intent ~ that is, the act of
physically moving tothe new residence pus the inten ta make it one's fixed home.
‘While elected officials may have only one domicile, they can have multiple residences,
Along line of cases and Attorney General opinions provides that officials may split time.
‘between two homes without losing their original domicile, as long as their actions corroborate
their declared intent co remain thee. Additionally, officials and their spouses can have different
domiciles if they and thie spouses reside in different places with the intent that they remain in
their respective homes. So her, the fats that Supervisor Daly and his wife purchased a home
outside San Francisco that he spends time at the Fairfield home, and that his wife and children
reside in Fasfeld do not necessarily mean that Supervisor Daly has established a new domicile
in airfield. Instead, under established principles Of California laws, we look to Supervisor Daly's
Satements and actions, long with recotdls documenting those actions, to determine whether he
phusially inhabits the Stevenson Strat residence and wheter he inca to retain asi xed
‘Supervisor Daly has consistently stated tht he spends most of his time in San Francisco
and that he intends to remain atthe Stevenson Stret residence. His actions ~ as evidenced by
‘witness observations as well as public and private documents ~ corroborate that intent. We have
revowed a number of document ineluding Deparuent of Motor Vehicle regisation record,
Voter registration records, tax returns, utility and related bills, homeowner's exemption records,
and other public documents, all of which are consistent with Supervisor Daly's assertions and
link him tthe Stevenson Sieet residence. In costrast, we are aware of no documents tht
demonstrate Supervisor Daly has changed his domicile to Fairfield. Additionally, a number of
Witnesses, including Ms. Low Daly, Supervisor Dalys Stevenson Suet roommates and third
party neighbors in San Francisco and in Fairfield, corroborate his statements, Based on out
Inspection of his bedroom and other rooms inthe unit, it appears that Supervisor Daly resides at
least part-time at Stevenson Steet.
Applying the established legal standard, we conclude that Supervisor Daly currently
remains a resident of District Six. Under the Charter, he mast remain a resident ofthat district
‘nd intend that it coatinue tobe his fixed home for as long as he remains in office as the District
Six Supervisor. We do not reach any conclusions here about whether Supervisor Daly's domicile
vill change at any point in the Faure.
Finally, although questions have been raised about how Supervisor Daly's residency
compares to that of former Supervisor Ed lew, our investigation revealed tha tho two situations
ae starkly diferent. ‘While Supervisor Daly has had a home in District Six for years and now
declares that he isnot abandoning it, Supervisor Tew never established residency atthe house in
District Four he claimed was his home. And while all the documentary evidence we reviewed
and the witnesses we interviewed here support Supervisor Daly's assertion that he continues to
reside on Stevenson Street, Supervisor Jew's similar declarations of residency found no credible
Support on paper, in vistal observations of his house o in the observations of his neighbors, In
sort, the question with Supervisor Jew was whether he ever established domicile in his district —
and he did not ~ but the question here is whether Supervisor Daly has changed his domicile to a|
home outside his distet. The facts of these two situations are very different and lead to
opposing domicile determinations, srr discussed in section IV(C) tthe end ofthis Civ AND COUNTY OF SAN FRANC'SCO. OFFICE OF THE Cry ATTORNEY
Memorandum
To: Dennis J. Herrera
DATE: August 17,2009,
PAGE: 3
RE: Review of Supervisor Christopher Daly's Residency =
II, BACKGROUND
Supervisor Daly curently serves asthe elected member ofthe San Francisco Board of,
Supervisors representing District Six, He was elected to that position in November 2000 and
sassimed office in January 2001. He later won reelection in 2002 and 2006. His current term
expires on January 8, 2011, and under the City's Charer, he may not seek reelection for atleast
‘four years,
{In nomination papers filed with the City's Department of Elections in 2006,
‘Supervisor Daly swore that he mat the logal requirements for candidacy, representing that he was
‘resident ofthe City district that he sought to represent and that he had been a resident for at
Teast 30 days. In that filing, Supervisor Daly attested that he resided at an address on Stevenson
Streot in Distt Six
Supervisor Daly and Ms. Low Daly purchased the three-besroom condominium unit on
Stevenson Street in Fall 2001, and moved into the unit in eaely Novernber of that year. They
resided there together until earlier this year. The couple marred in 2003 and they now have two
children, ages about 1¥6 and 4¥,
On February 10,2009, Supervisor Daly and Ms. Low Daly purchased a house in
Fairfield, California. They purchased that house with cash and did not take out a home loan.
‘Ms, Low Daly's parents live in Fairfield, and many mombars of her exiended family alco reside
inthe ares, On April 1, Supecvisor Daly and Ms. Low Daly purchased a second hotse in
Fairfield in a foreclosute sale. Like the purchase of the first house, they paid all cash and did aot
take out aloan, ‘The second house is located on a cul-de-sac and is two doors away from
Ms. Low Daly's parents home. Ms. Low Daly lived onthe same cul-de-sac with her patents as a
child. According to Supervisor Daly and Ms. Low Daly, they intially intended for Ms. Low
‘Daly and the children t© move to the first hove, but when a second house so close to Ms. Low
Daly's parents became available, they decided to purchase the second property and rent out the
first. "During the fist half of 2009, before the cul-de-sac property was ready for occupancy,
‘MBs. Low Daly and the children began to spend more time in Fatfield with Ms. Low Daly’
parents.
‘When Ms. Low Daly informed her bother that she planned to move o Faifield, be and
bis gilfriend agreed to move into the Stevenson Street condominium with Supervisor Daly.
‘They moved in on approximately May 1, and they lived inthe unit with the entire Daly family
for most of the month. Around Memorial Day weekend, Ms. Low Daly and the chiléren moved
to the cul-de-sac propery in Fatfcld
After Ms. Low Daly moved, the remaining roommates ~ Supervisor Daly, his
law, and his brotier-in-law’s gitltiend ~ agreed to find another person to share the unit and help
dofiay housing costs. Supervisor Daly's brother-in-law posted an advertisement on Craigslist,
and later interviewed and agreed to lease terms withthe final roommate, ‘The final roommate
‘moved into the unit in late Jane 2009 under a ono-year lease aproement. Although the original
ease listed Supervisor Daly's brother-in-law as the "landlord," Supervisor Daly and the final
roommate later signed a new lease listing Supervisor Daly as the landlord,
‘With Ms. Low Daly and the children living in Fairfield, four roommates now share the
Stevenson Street residence. Ms. Low Daly's brother and his gilfriend share one of the upstairs
‘bedrooms, Supervisor Daly occupies a separate bedroom downstairs, andthe final roommate City AND COUNTY OF SAN FRANCISCO OFFICE OF THE City ATTORNEY
Memorandum,
To: Dennis J. Herrera
DATE: August 17, 2009
PAGE: 4
Review of Supervisor Christopher Daly's Residenc)
‘occupies the other upstairs bedsoom. One of Supervisor Daly's roommates also has a dog that
stays inthe unit
Since Ms. Low Daly's move to Fairfield, Supervisor Daly spends most in the
‘Stevenson Street residence and usually spends weekend nights with his family in Fartcld,
‘according to our interviews with Supervisor Daly, Ms. Low Daly, and the three Stevenson Steet
‘oommates. Supervisor Daly informed us that he spends on average four nights a week at
Stevenson Stest aad thrce nights a week in Fairfield. Ms. Low Daly told us that
‘Supervisor Daly spends the "majority" of his nights at Stevenson Stret
(On July 22, Supervisor Daly issued a written statement announcing tht he and Ms. Low
‘Daly had purchased a house in Fairfield and that Ms. Low Daly and the children had “recently”
‘moved there. ‘The statement continued:
‘continue to cat, slep, and bathe in my home on Stevenson Street. bicycle to
‘City Hall and to‘distict meetings from my home and intend fo continue to do so
‘until the end of my Supervisor term and probably for longer.
In he following weeks, Supervisor Daly made similar statements to other members of the press,
explaining that he considers the Stevenson Street condominium his home but that he regularly
spends time in Faeficld with his family.
TIL. SCOPE OF THE CITY ATTORNEY'S REVIEW
‘On July 27 and August 11, Supervisor Daly provided us a number of documents,
including 2008 tax returns; a copy of his drive’ license; his vehicle insurance card; recent
fiement from four person tank account and cable, lei, and phonfintnt il nd
‘summazies covering the past yeas. We sso reviewed information in public flings regarding,
Supervisor Daly, Ms. Low Daly, and the Stevenson Street roommates, and we obtained
‘addtional vole registration records and election-related filings from the San Francisco
Department of Elections.
We interviewed Supervisor Daly at his Stevenson Steet residence on July 27, and
followed up with additional questions on August 5 and 6. We inspected the unt during our fist
rmesting with Supervisor Daly, and also visited it for an interview with one of Supervisor Daly's
roommates on July 28.
In addition to our meetings with Supervisor Daly, we interviewed a number of other
‘witnesses regarding Supervisor Daly's current living arrangements and Ms. Low Daly's move.
‘On August 3, we spoke with Ms. Low Daly. On July 28 and August 5 and 6, we interviewed the
three individuals Supervisor Daly identified as his Stevenson Street roommates. The Stevenson
‘Street building has five units, and between July 28 and August 7, we contacted individuals in the
{our units other tian Supervisor Daly's, Between July 30 and August 4, we also made contact
‘with every household on the Fairfield cul-le-sac where Ms. Low Daly aow resides, including
‘Ms. Low Daly’ father.
‘Our review focused on Supervisor Daly's residency between February 2009, when he and
‘Ms. Low Daly purchased the fst Fairfield and August 10, 2009, We did not
specifically lok into whether Supervisor Daly has been a resident othe Stevenson Street
condominium in District Six continuously since 2001. That fact does not appear tobe in
(question, and indeed all the evidence we obtained supports the assertion that he has been a
resident therefor that period. City AND COUNTY OF SAN FRANCISCO OFFICE OF THE CrTy ATTORNEY
Memorandum
To: Dennis J, Herrera
DATE: August 17, 2009
PAGE: 5
IV. DISCUSSION
A. Under The Charter, Supervisor Daly Must Reside In Distriet Six Throughout Tis
Term of Elective Office.
1. The San Francisco Charter Requires Bach Supervisor To Be Domiciled In
‘The District That The Supervisor Represents.
‘San Francisco has eleven Supervisors who serve a its legislative body. Each Supervisor
is elected by the voters of a distinct suporvisorial district. See Charter §§ 2.100, 13.110(2), ().
‘To ensure that each candidate for Supervisor, and each elected Supervisor, possesses a
sufficient connection with the district from which that person seeks to be or has been elected, the
Carter requires thatthe Supervisor be resident ofthe district before secking office and
throughout the Supervisor's term. Specifically, the Charter provides that eack San Francisco
Supervisor "must have resided in the district ia which he or she is elected fora period of not less
than 30 days immediately preceding the date he or she files a declaration of candidacy forthe
‘office of supervisor, and rust continue to reside therein curing his or her incambeney, and upon
‘ceasing to be such resident shall be removed from office." Charter § 13.110().
‘While the Charter conditions one's ability to serve as Supervisor on where one "resides"
("haf resided," neither the Charter nor the City's Manicipal Elections Code ("ME"),
Specifically defines that term (including iss variants, such as zesident” or “esidenee"). But the
(Chatter specifies that where local law is silent, "ll Cty and County eletions shall be governed
by the provisions of applicable state laws." Charter § 13.100. Section 100 of the MEC,
similarly, states that except where the Charter or the MEC provide otherwise, "apolicable
provisions of State and federal law shall apply” to electoral matters in San Francisco, MEC
$100,
California statutes, in turn, make clear that where one “resides” for electoral purposes
tums on where one is domiciled. Under California Elections Code section 349(a), "[rJesidence’
{ot voting purposes means a person's domicile." Government Code Section 244 likewise defines
“residence in terms that ~ although not employing the word “domicile” — equate to that concept.
‘See Walters v. Weed, 45 Cal.3d 1, 7 (1988); Smith . Smith, 45 Cal.24 235, 239 (1953).
Moreover, the Attorney General has explained thatthe term "residence" "generally
connote[s] ‘domicile, i. the place witere a person's habitation i fixed, at which the person,
Intends to remain, and to which the person intends to return Whenever absent." 75 Ops. Cal.
‘ay. Gen. 287, 289 (1992),
‘Accordingly, whether Supervisor Daly satisfies Charter section 13.110(e)'s residency
requirements depends on whether he has retained his domicile in District Six.
2 Physical Habitation And Intent To Remain Are Both Necessary To Establish
A Domicile
Under the law, a domicile is more than a mere residence. "T]he test for determining @
‘person's domicile is physical presence plus an intention to make that place his permanent hom
Fenton v. Bd. of Directors of Groveland Community Service Dist, 156 Cal. App. 36 1107, 1116
(1984), Beyond just being a place that one inhabits, one's domicile isthe place where one’s
"habitation is fixed, wherein th person has the intention of remaining, and to which, whenever
fhe or she is absent, the person hes the intention of returning.” Cal. Elec. Code § 349(b).
person's domicile is "the place where ane remains when not calied elsewhere for labor or special Cily AND COUNTY OF SAN FRANCISCO (OFFICE OF THE Civ ATIORNEY
Memorandum,
Dennis J, Herrera
DATE: August 17,2009
Pat 6
RE: Review of Supervisor Christopher Daly's Residene;
cx temporary purpose, and which he or se tums in seasons of repo." Cal. Gv Code
a0) Aste Caltomia Supreme Court as explained persons"
“domicile isthe one location with which for legal purposes a person is considered to have
the most setled and permanent connection, the place where e intends to remain and to
which, whenever he is absent, he has te intention of returning!)
‘Smith, 45 Ca.2d at 239, While a person may have multiple esidences, he or she can only have
‘one domicile. See Elec. Code § 249(b), (€); Smith, 45 Cal2d at 239.
CCoarts generally hold "that two clements are indispensable" to establishing domicile in a
particular place: actual residence plus the intent to remain there. DeMiglio v. Mashore, 4 Ca
‘App. 4th 1260, 1268 (1992). “The acquisition ofa new domicile requizes the union of act and
intent” Walters, 45 Cal 3d at 14; Cal. Gov't Code § 244(f). Therefore, a person's mere intent to
‘make a certain location his domicile is not meaningful legally, unless and until the person.
actually inhabits chat location with the intent to live there permanently. Cal. Elec. Code § 2024
"A person does not gain a domicile in any precinct into which he or she comes fort
purposes merely, without the intention of making that precinet his or her home.” I. § 2021%b).
‘Once a person establishes domicile in one place, the individual does not lose that
domicile “ani a new one is acquired.” 84 Ops. Cal. Aity. Gen. 154 (2001). In considering what
itmeans to change one's domicile, we find tht the Court of Appeal’s analysis in Fenton ie
instructive. In that case, an offical purchased a home inside her district in 1950 and lived there
for nearly a decade, Duting that period, the district home unquestionably was her domicile. HM.
aL 1112, 1117. In 1959, the official purchased a second home outside the distect, and she split,
time between the two for several years. £d. Starting in 1968, theofficial lived "almost
exclusively” at the second home and took & homeowners property tax exemption there. 1d, st
1111-12, While her voter registration and driver's license listed her as a resident of her district,
and she visited the district ome regularly "to check on its welfare,” she did nat “eside" there in
the colloquial sease of that word. /d,at 1112, L117-18. Despite the officials nearly fulltime
residence athe second home over 14 years, the cout found “ample evidence” that she had not
changed domiciles. In caching this conclusion, the court considered the official's declaration
that she “continuefd to consider the [district] property as her home,” and “her actions as
‘manifested by her consistent listing ofthe... addtess as her residence, and the fact that she
consistently returned to the property" to establish that she didnot intend to change her residence.
Ha a 112, 17-18,
3. Purchasing And Spending Time At A Residence Outside The District Docs
NotEstablsh A Change Of Domi
‘A Jong line of consistent California legal authority provides that officials may split time
between two homes without losing their domicile in the district from which they were elected or
appointed, as long as their ations corroborate their delared intent o remain in the district. AS
the Attomey General has explained, “[w}hile an individual may have only one domicile, he or
she may have multiple dwellings... Accordingly, the acquisition of a new dwelling does not
necessarily establish a change of domicile.” 84 Ops. Cal. Aly. Gen. 154 (2001) (citations
omitted).
“The reported authority most analogous to Supervisor Daly's circumstance isthe Attorney
General's 2003 opinion regarding an elected member of the San Diego Unified School District.
‘See 86 Ops. Cal. Atty. Gen. 194 (2003). The offi ‘CITY AND COUNTY OF SAN FRANCISCO. OFFICE OF THE CITY ATTORNEY
‘Memorandum
To: Dennis J, Herrera
DATE: — August 17, 2009
PAGE: 7
RE Review of Supervisor Christopher Daly's Residency
‘ematried nine years later, he rented a house with his new wife in Coronado, outside the distit.
‘The official's wie registered to vote in Coronado, and her children enrolled in Coronado schools,
‘While theofficial kept an apartment in the district, he split his personal belongings between the
{wo homes, and he acknowledged that he “divide( 4) his time between the two residences and
[spent] more time at the Coronado house” than at his apartment inside the district. A.
atendant a the San Diego apartment saw theofficial two or tree times a week, bul &
neighboring tenant reported having seen te offical three times inthe two years following his
‘marriage.
‘But theofficial received mal at the in-distict apartment, and the utilities there were in
his name, His driver's license, vehicle registration, voter registration, wage and tax statements
all used the San Diego address, and tho official explained that he considered that apartment to be
his permanent home. ‘The official declared that he had been domiciled in te distiet for 18 years
‘and that "he has never formed an intention to make the Coronado reatal house his permanent
hhome.” For that reason, the Attorney General concluded that the evidence did not suppor the
‘conclusion thatthe official had changed his domicile to Coronado.
Similarly, in 75 Ops. Cal. Atty. Gen. 26 (1991), the Attorney General dectined to find
substantial questions about an community college district trustee's domicile after the trustee and
har spouse sold their home in the district and purchased a new home outside the dissict. ‘The
ttustee "allocate(d] her time hetwen” her family's nese home and a rented residence in the
slistrict, but maintained vote registration, vehicle registration, phone service and bank accounts,
in the district. ‘The Attorney General concluded thatthe "allegations that (the trustee) has
prchased a residence outside of the District and resides there part-time, even when coupled with
‘conclusory belief that (the trustee] doesnot intend to remain at her residence within the
District, ate not sufficient when weighed against te direct evidence of intent onthe part of
‘defendant which is materially corroborated by her conduct.’
‘Also, in 72 Ops. Cal Aity. Gen. 8 (1989), the Atorney General denied a challenge to the
rsidency of a member of te Huron City Council. The official owned a home outside the
{ntacton bu pent one ro three nights «wee a Huron na mobile home owned by hi,
her-in-law. The official considered the mobile home tobe his "permanent residence,” he
voted in Huron, and his vehicle registration and driver's license listed that address as his
residence. Based on these facts, the Attorney General concluded that the official intended to
‘maintain his domicile in Huroa,
In 87 Cal. Ops. Atty. Gen. 30 (2004), theofficial in question also divided his time
between two residences ~ the home of his mother and sister inthe district andthe home of his
aitfriend outside the distil. But he received mail atthe in-dstrict home, and his divers
license, insurance and voter registration listed that address as his residence. Although the official
spent time atthe gitftend’s home as wel, the Attomey General concluded that its clear that
sich a residence, even i it were a house owned by him and occupied by is family, does not
establish domicile — especially where, as het, [the official] affirms his intent to maintain bis
domicile in (the district] and supports his declaration of intent with substantial evidence from
‘other sources.”
‘hg Attorney General ins eahed th sae conclusion in othe compaae stations as
‘well, See 84 Ops. Cal Atty. Gen. 154 (2001) (district taste signed a lease, paid rent, and
received mail at a residence outside district, but evidence was “insufficient” Wo raise substantia
‘questions regarding tustee’s domicile, “especially where [the trust] has denied an intent to CITY AND COUNTY OF SAN FRANCISCO. OFFICE OF THE CITY ATTORNEY
‘Memorandum
‘To: Dennis J, Hemera
DATE: August 17, 2009
PAGE: 8
RE: Review of Supervisor Christopher Daly's Residene
change bis domicile" and where voter and vehicle registration and oer documentation
Supported that assertion), 73 Ops, Cal. Ally. Gen, 87 (1992) (Allegations tht defendant has
Ditehased or moved to aresigenceousie the district snot probalively significant, snes a
Tidivideal nay wel ave multiple esdeaces as tha fee e commonly uaberstood and as
distinguished from th concept of domicile), 73 Ops. Cal Aty. Gen, 427 (1990) CTW} a
‘change of mailing address an telephone lista to a Tovaion ouside the Distt may indicate
‘Some presence outside the District they are no inherently inconsistent with iso mataning
piysical preseace witia the Distiet Waar intention fo fetra Whenever sbeea)
“The Atlorney Genel summarized many ofthese opinions in 81 Ops. Cl. Aty. Gen, 94
(1998), explaining
{The allegation that defendant has purchased a home ouside the Dist, taken alone, is
ot dspostve, since an individual may have multiple dwellings as distinguished from
the concep of domicile... In rir opinions, teefore, where such an alegaion was
Insufficient to overeome direct evidence o an expressed inn wo remaln in and (oYeurn
to the officers domicile within the plie agency's bonndaries whenever absent for
urposes of work, where such an expression was coupled with corroborative conduct, we
ave denied application for leave to sue in quo Warr
(citations omives). Under this standard, the fact hat Supervisor Daly and his wife purchased a
Some outsige Dict Sx, or hate speads dine ate Paita home, des nov nessssatly
inean that he has established a new domille.
4A Person's Domicile May Be Different From The Domicile Of The Person's
Spouse,
‘As some ofthe opinions described above indicate, an offical may have a different
omic from that persons spouse. California Elecons Code section 2029 provides, "Ube
Alonteie of ane spouse shall ot be resumed tobe tha of tne oter, ut shall be detcmined
Independently" Hlectons Code setion 2028 similay sates:
‘person has a family fixed in one place, and he or she does business in another, the
former is his or her place of domicile but any person having a fail, who as ‘aken up
fan ode wits the tenon of remaining and whose family doesnot o reside with hi or
ihn tea domicliary where he or she has so taken up the abode.
See also Cal Gov't Code, § 244(g) ("A nsried person shall have the right to retain his ore
doga reaidece i the Sto of Caitorna novwittending te legal eidenceor domicile of his or
her spouse).
‘The Atlomey General underscored this point in 86 Cal. Ops Aty. Gen. 194 (2008). -
“Ther, the party seeking to remove an official from office submited ass "primary contention
that (he oficial] has abandoned his domicile inthe Distt by moving” to house outside
ih dist with his wife an their cbiren, The Attrmey General rejected that contention,
"otng that "implied in Relator’ argument a pesimption tala person may not maintain &
‘omit spurte fom the residence shard wil ior bos spouse and cider. But hei
Drovides olberwise Likewise bere, Ms. Law Daly's domicile in Fasild doesnot necessarily
Setemnine Supervisor Dalys domiche City AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY
Memorandum
TO: Dennis J, Herrera
DATE: August 17, 2009
PAGE: 9)
RE: Review of Supervisor Christopher Daly's Residency
B. Supervisor Daly Has Not Changed His Domicile To Fairfield.
Applying these established legal standards to the Facts of Supervisor Daly's curent
circumstances as described above, wo conclude that his current domicile remains at Stevenson
Street in San Francisco. In determining a person's intent to make a particular place home, "the
declarations of the party involved must be taken into consideration." Fentan, 156 Cal, App. 34
fa 1117. At the same time, because "[olne's intent can be determined by one’ sts," id, court
"is not necessarily bound by the person's statement of his intention, particularly where his acts
contradict his statement.” Mauro v. Department of Mental Hygiene, 207 Cal. App. 24 381, 389
(1962). As the Attorney General has observed, "the most important evidence of [a person's]
{ntent is his conduct." 85 Ops. Cal. Atty. Gen. 90,93 (2002). See also 81 Ops, Cal. Atty. Gen.
98 (1998) (Gnding substantial questions regarding official's domicile because of evidence
contradicting offical’ statements and "unexplained discrepancy" in her story)
Here, as discussed below, the evidence does not show that Supervisor Daly intended to
change his domicile when he purchased the Fasfelé properties or a any time since.
1. Supervisor Daly Has Consistently Stated That He Has Not Changed His
Domicile To Faificla
In throe interviews with this Office and in several statements to the media, Supervisor
aly consistent hes stated that he resides atthe Stevenson Strest condominium. During his
‘conversations with us, he stated that his wife and children stayed at her parents house in
Fairfield periodically over the course ofthe spring, and that they completed their move to
Fairfield in late May. Since then he reports that he has spent an average of four nights a week in
the Stevenson Street condominium. He said that he regularly travels to Fairfield by taking.
[BART and a surface bus. To corroborate this practice, he presented his BART and bus passes.
Inhis writen requst that this Office review his residency, Supervisor Daly stated, "L
ontnue olive here in San Francisco at [te Steveason Steet adress), whece have lived since
2001: "Thave te intention of rematning in his abode
‘While nt dispositive, Supervisor Daly's consistent statements have legal signiicane,
paatiulany where the oer evidence supports his statements. See Fenton, 136 Cal. App. 34 at
{717 And as discussed below, the other evidence we have accumulated and reviewed is
consonaat with Supervisor Daly's statements regarding his intent
2. "The Evidence Supports Supervisor Daly's Declaration That He Is Domiiled
At Stevenson Street.
‘Documents Linking Supervisor Day to the Stevenson Street
Residence
‘A number of documents we reviewed confirm Supervisor Daly's connection tothe
Stevenson Stret propery. In determining domicl, cous ad the Attomey General have
Tooked at merous factors including the address shown on te person's voir registration,
diver’ license, vehicle registration, ax retin, homncowne’s popes tax exemption, and
telephone listings. Fenton, 156 Cal, App. 34 at 1116; 84 Ops, Cal. Atty. Gen. 154 2001); 87
Ops Cal Aty Gen. at 33; 75 Ops. Cal Any. Gen. 287, 289 (1992), Here, every document we
have reviewed links Supervisor Daly to the Stevenson Set ares:
‘+ Voter Registration Records: Based on oar review of the Department of Elections
computer database, Supervisor Daly has been registered to vote a the Stevenson ‘CITY AND COUNTY OF SAN FRANCISCO. OFFICE OF THE CiTy ATTORNEY
Memorandum,
To: Dennis J. Hemera
DATE: August 17, 2009
PAGE: 10
RE: Review of Supervisor Christopher Daly's Residency
‘Street address since November 2001. He has not changed his registration since
purchasing the Faitfeld properties.
‘+ Deparent of Motor Vehicle Records: Department of Motor Vehicle records show
that Supervisor Daly's driver’ license lists the Stevenson Sirest address, The driver's
license was mast recently renewed on August 17, 2006.
‘+ Vehicle Insurance and Registration: Supervisor Daly provided this Office a copy of
a insurans card for he vehicle registered fo Ms, Low Daly ‘The policy i fective
‘pal 1, 2009, an lists Sarah L. Daly and Chuistopher E. Daly as the insured, with the
‘Stevenson Street address. ‘The vehicle is registered in Ms. Low Daly's name, and the
‘vehicle registration lists the Stevenson Street address.
+ Elections Filings: In his Declaration of Candidacy and Affidavit of Nominee, filed
‘with the Department of Elections on August 11,2006, and his Declaration af
Intention to Solicit or Accept Contribations for Local Office, filed with the same
office on December 20, 2004, Supervisor Daly stated that he resided a the Stevenson
Street address,
‘+ Property Tax (Homeowner's) Exemption: Elections Cade section 2031 provides that
taling prope tax exemption on aresidence creies eb preston tha
the residence is the person's domicile unless another rescence is iste as the person's
residence address on a driver’ license or vehicle registration issued to that person,
‘According to their 2008 tax returns, Supervisor Daly and Ms. Law Daly took a
‘homeowner's exemption on the Stevenson Street property. Supervisor Daly stated to
us that he intends to claim his homeowners exemption forthe Stevenson Street
‘condominium for the 2009 tax year as well.
‘+ Fairfield Title Documénts: In public documents filed in connection with the
purchases of bo Field properties, Supervisor Daly and Ms, Law Daly listed
syenson Street as their mailing address,
+ Bunt Records: Supervisor Daly provided ue with penta of Sates rom four
‘personal bank accounts in his and Ms. Low Daly's names, Thyce ofthe statements
‘covered periods including June and July 2009, and the fourth covered a period from,
‘April to June 2009. All four statements are addressed to Supervisor Daly and Ms,
Low Daly atthe Stevenson Strext residence.
‘+ Mail Service: Supervisor Daly provided us with several bills, discussed below,
addressed to him atthe Stevenson Stet address. He aso informed ws that he
receives the bulk of his mail at Stevenson Stet. He has not changed his addiess
withthe U.S, Postal Service, and he says he does not intend to, He also stated that
Ms. Low Daly now receives the bulk ot her mail in Fairfield, although she has not yet
submited a change-of-address form to the Postal Service.
‘© Public Database Search Results: In addition to reviewing the documents listed
shove, we searched for Supervisor Days adres using directory databases hat
deliver a wide range of information derived from various sources, including public
‘records, business and consumer information, credi-based sources, and other sources.
‘While these databases do not always reffect very recent address changes, Our searches
revealed database records for Supervisor Daly's Stevenson Street roommates
reflecting address changes as recently as July 2009. By contrast, the databases CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CiTY ATTORNEY
Memorandum
To: Dennis J, Herrera
DATE: August 17, 2009
PAGE: it
RE: Review of Supervisor Christopher Daly's Residency
consistently indicated that Supervisor Daly's address is on Stevenson Street, They
show no change of residence for Supervisor Daly since 2001
Supecvisor Daly also provided us with copies of recent bills that he received at dhe
Stevenson Stet address. ‘These bills indicate tht phone, internet, cable and electricity usage
Ings been consistent for atleast the last year. (Supervisor Daly did not provide water or waste
«isposal bills because he pays for those services through his homeowner’ association fees.)
‘+ Phone, Internet and Cable Bills: Supervisor Daly provided us sets of monthly bills
from Comeast showing continuous cable service forthe past year, and from ATCT
showing continuous landline telephone and internet servic for approximately the
Same period. ‘The bills all are addressed to Supervisor Daly atthe Stevenson Street
sess,
+ Electricity Bills: Supervisor Daly provided his most recent PG&E bill forthe
Stevenson Street adress, along with payment records reflecting continous payments
fo PG&E for this account over the last year. For the most recent petiod from Jane 5,
2009 through July 2, 2008, it shows electrical usage of 223 Kwh, or an average of 0
Kiwh per day. This compare to an average of 11.5 Kwh for roughly the same petiod
last year, based on earlier payment records provided by Supervisor Daly, There is no
sas service forthe unt.
b. Visual Inspect
Based on our visual inspections of the Stevenson Stret residence, including the living
trea, bathrooms and two ofthe bedrooms, the unit appears to be lived in. The unit has three
bedrooms ~ two upstairs and one downstiss. The living and dining areas were furnished, the
kitchen and refrigerator appeared to be fully-stocked, and during our meeting, Supervisor Daly
ppointed out duplicate stocks of certain items in the refrigerator that he alributed to multiple
persons living inthe unit, According to Supervisor Daly, most of his family's furniture isin
Fairfield, and the current furnishings atthe Stevenson Stret residence are & combination of
items owned by him and his roommates
The room Supervisor Daly identified as his bedtoom had a futon with sheets, bedspread
and pillows; a desk; and several framed photos and a large poster onthe walls. ‘The room's closet
‘was Stocked with suits, shirts, pants and other clothes.
of the Stevenson Street Residence
‘The dial-in system at the building entrance lists the residents of the unit as "Daly/Low
and one of the building's mailboxes is identified as "Daly/Low.”
© Corroborating Statement By Ms. Low Daly
In our interview with her, Ms. Low Daly provided information consistent with Supervisor
Daly's statements. She explained that when she first moved tothe Fairfield house, she and
‘Supervisor Daly planned to use what Ms, Low Daly called a firefighters schedule ~ with
Supervisor Daly spending a few days in San Francisco followed by a day in Fairfield. Instead,
Supervisor Daly now spends most weeknights at the Stevenson Stet residence and tres to
spend most weekend nights in Fairfield. Ms. Low Daly stated that, on the whole, Supervisor
Daly currently spends the majosity of his time in San Francisco,
Further conoborating Supervisor Daly's statements, Ms. Low Daly also stated that
‘Supervisor Daly usually takes public transportation to and from Fairfield. She explained that tho CITY AND COUNTY OF SAN FRANCISCO. OFFICE OF THE CiTY ATTORNEY
Memorandum
To: Dennis 1.Herera
DATE: August 17,2009
PAGE 12
RE Review of Supervisor Christopher Daly's Residency
couple owas a single vehicle, and that Supervisor Daly only occasionally uses itt drive between
‘San Francisco and Fairfield
4. Roommates’ Statements
The statements of Supervisor Daly’ three Stevenson Steet roommates were consistent
with each other’ and with Supervisor Daly's statements, According to all of the roommates,
Supervisor Daly spends about half of his time atthe Stevenson Steet residence, usualy spending
weekdays in San Francisco and weekends in Fairfield.
“The four residents of the unit spit monthly bills for electricity, cable and internet evenly,
Suggesting that al four roommates ae evenly responsible for usage, Supervvor Day in
us that he pays for landline telephone service because his roommates do not rogulaly use that,
phone.
Inthe other particulars, the roommates statements match those of Supervisor Daly and.
Ms. Low Daly. Supervisor Daly's brother-in-law told us that he became interested in moving
into the Stevenson Sirect condominium with Supervisor Daly after leaning that his sister and her
children were planning to move o Fairield. Supervisor Daly's brother-in-law and his girlfriend
‘both recalled that they moved into the unt around May 1, 2009. They also stated that for the
following month, Ms, Low Daly and the childen continued o reside at the condominium, bat,
spent time in Fafield as well, and that during Memorial Day weakend, Ms. Taw Daly and the
ren moved to Fairfield.
Interviews with Neighbors inthe Stevenson Street Building
Our interviews with occupants of the other apartments in the Stevenson Street building
also corroborated Supervisor Daly statements about his use of the unit. The building has ive
Units including Supervisor Daly's, with entrances on three floors. ‘The entrance to Supervisor
Daly's units oa the third floor ofthe building, long with one other unit. Other than &
‘courtyard, thee is no common area for neighbors fo congregate, We understand that both before
snd afte the purchase ofthe Fairfield properties, interactions between Supervisor Daly and the
other residents ofthe building have been relatively infrequent,
‘We spoke with individuals in all four units ofthe Stevenson Street property other than
‘Supervisor Daly's. Residents in tree of the units knew the Daly family by sight and through
interactions over the years. The neighbors’ observations were consistent with Supervisor Daly's
statement that he continues to spend time atthe Stevenson Stet unit. ‘The resident of the unit
‘on Supervisor Daly's floor stated that she sees Supervisor Daly “all the time," and that she has
seen him continiously over the past three to six months. She said that she often notices him
coming in and out of te building with his bicycle. Another neighbor reported that he hed not
seen Supervisor Daly recently, but that e regularly hears him coming and going. thd
neighbor repored tase ses Superior Daly ony cecasionlly but ht She em receniy
leaving the building carrying a cake. The same neighbor also observed that she had not seea the
Dalys' car in recent monihs. ‘This is consistent with Supervisor Daly's statement that Ms, Low
Daly usually keeps the car in Fairfield CIty AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY
Memorandum
To: Dennis J, Herrera
DATE: August 17, 2009
PAGE 3
RE: Roviow of Supervisor Christopher Daly's Residency
3. The Evidence Supports Supervisor Daly's Declaration That He Has Not
Changed His Dome To Paiield.
a Interviews with Neighbors in Fairfield
‘The observations of Ms Low Daly's nephbors in Fale are consistent with de
satements of Supervion Daly ads, Law Daly tom Superior Day spends aly a miso of
iis tie thee, As cuted Shove, Ma, Law Daly and ts ciden nw tse in 4 Bou on &
Calero Pai We ma contac tt osypant of vey boar on he dese
izit houses inal ncuding Ms, Low Daly's parents Some people we contacted were
ining speak wits Bt met wee wing to share hel oberon,
Ms, Low Daly's father, the neighbor who probably has he mt contact witb Supervisor
Daly, sae that ses Supefisor Daly sound ie hose once or vin a week: Bas on bis
observations, bo bellows that Supervisor Daly spends the monty o his tne n San Francisco.
Most ofthe othe aeihbors have seen some member ofthe Daly family since Ms. Law
Daly moved in approximately tvo mons ago. Four of then ew who Supevisot Daly was
fn acknowledge having see him onthe sree, but none sed tat they sce him on adally
Si nent eptedtatche ses e-Low Dal sos edn ad es Soper
va
Daly about once a week. Another eightor remembers heving soon Spervisor Daly ony ow
‘ine. The ssn ttn secant tse Dale report ta Supervisor Daly viog
frequently while the femily made improvement ote propery shorty ater the parhase this
Spuing, bt tat hebas sesh Supervisor Daly less requenl sae hea, Tho neighbors
saintly sted tht the Daly family apgeasto have only ene vec, ava hts eguatly
hed athe hovse, All of tetestements ue consistent with he statements mae bY
fopevitor Daly about his nations and his actions
(On Jaly 30, we also interviewed the tenant senting he Fatfld property that Supervisor
Daly ant a Low Daly purchased teow yng tho cledessac ham The eta as feted the
hovte for approximately tre mone. No member of the Daly family ives th house, bd
She has never met personaly wile Supervisor Dag, Again, thsi coostent wal Supervisor
Daly's saaments.
b. Documents Regarding the Fairfield House
1s our view ofthe documents andthe public database searches described above on
910, we found no documents suggesting that Supervisor Daly flltime resident ofthe
eld house where Ms. Low ay ad thet children live oc hat hehe an any sept
indicating that he intends to make that house his domicile."
Supervisor Daly povided sail for gs and elec service atthe Fuld house
shore Ms Low Daly resides. Itcovers the peti fom April 16.0 Apel 29, 2009, nd itis
‘Maresed io Ms, Low Daly.
" Although loan documents oft includ information about whether a purchaser intends to make
a property his her primary residence, Superisr Daly and Ms. Low purchased both Furild
properties with cash, so there are no loan applications associated with those purchases. ‘CITY AND COUNTY OF SAN FRANCISCO OFFICE OF THE CITY ATTORNEY.
Memorandum,
Dennis J, Herrera
‘August 17, 2009
ry
Review of Supervisor Christopher Daly's Residene)
© Supervisor Dly’s Circumstances Are Facaly and Legally Diferent From Those
‘ormer Supervisor Edmund Jew.
In 2007, ths Office investigated the residency of District Four Supervisor Edmund Jew
and concluded that Supervisor Jew was not domiciled in his electoral disuict. We reach a