VALLEJO, CA  --  Gary Cloutier was sworn in as Vallejo's first openly gay mayor but lost the victory when his rival candidate Osby Davis demanded a recount. The recount gave Davis the victory by two votes but now Cloutier is going to court after an absentee ballot for him was found in the trash.

The race for mayor of Vallejo, a city of 117,000 about 30 miles from San Francisco, became a dead heat between Gary Cloutier, 45, a former city councilman, and Osby Davis, 62, a former county supervisor. Both candidates represent a first for Vallejo: Cloutier would be the first openly gay mayor of Vallejo, whereas Davis would be its first black mayor.

Just days after his win of the election for mayor, Cloutier was arrested for public drunkenness as he sat in the driver's seat of his Cadillac in the early morning hours of November 18th, 2007 in Palm Springs outside a gay bar.

He spent five hours in jail and was released. At a press conference outside Vallejo City Hall, Cloutier said he "...Made a mistake that I deeply regret... I had too much to drink...[and] I make no excuses, and I accept full responsibility for my actions. I have embarrassed myself, concerned my colleagues and disappointed my supporters. I deeply regret my actions, and apologize to the people I've let down, especially those who have worked so hard on my campaign." Cloutier also said it would never happen again.

A few days later, he was sworn in, only to have Davis request the recount.

Cloutier says the recount was riddled with problems. At one point, Davis led by three until an absentee ballot for Cloutier was found in a pile of plastic bags, AP reports.

Cloutier calls that evidence of fraud and went to court Tuesday, unsuccessfully seeking a court order stopping Davis from taking over as mayor.

County officials deny that there was any fraud or that a vote was tossed in the trash. County spokesman Stephen Pierce said the ballot had been erroneously set aside and both candidates were immediately informed of the find.

Cloutier can still contest the results in a trial and has said the issue is "far from over."

After Davis was sworn in Tuesday night, Cloutier left the council chambers with the famous words of actor and Gov. Arnold Schwarzenegger.

"I'll be back," he said.

Last update: 12-13-2007 12:01