By Luke Thomas
Editor’s Note: This report has been updated with a response from City Attorney Dennis Herrera spokesperson Matt Dorsey.
March 27, 2012, 9:00 am.
Defense counsel representing suspended Sheriff Ross Mirkarimi filed a writ today in Superior Court seeking to reinstate the former District 5 supervisor as the lawfully elected Sheriff of San Francisco, Fog City Journal can report.
Mayor Ed Lee “acted outside his legal authority” when he suspended Sheriff Mirkarimi, according to Mirkarimi’s new defense attorney, David Waggoner.
“There is no basis in law to justify charges of official misconduct,” Waggoner told FCJ, “And there’s no evidence to support that my client misused the office of sheriff.”
Mirkarimi pleaded guilty last week to one count of misdemeanor false imprisonment stemming from an alleged domestic violence incident involving his wife, Eliana Lopez, on New Year’s Eve. He was sworn into office January 8.
Lee, who suspended Mirkarimi last Wednesday – without pay – said, “Sheriff Mirkarimi’s actions and confession of guilt clearly fall below these standards of decency and good faith, rightly required of all public officials,” referring to an untested component of official misconduct, as defined in the city Charter:
[“Official misconduct means any wrongful behavior by a public officer in relation to the duties of his or her office, willful in its character, including any failure, refusal or neglect of an officer to perform any duty enjoined on him or her by law, or conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers and including any violation of a specific conflict of interest or governmental ethics law. When any City law provides that a violation of the law constitutes or is deemed official misconduct, the conduct is covered by this definition and may subject the person to discipline and/or removal from office.” (Emphasis added)]
The writ of mandamus makes three legal arguments as to why Mirkarimi’s suspension is illegal:
– The conduct at issue occurred before Mirkarimi assumed the Sheriff’s office and cannot be the basis for suspension.
– Mayor Lee’s summary suspension of Mirkarimi, without pay, for a misdemeanor which does not constitute moral turpitude, is a denial of due process.
– The language of the Charter defining “official misconduct” is unconstitutionally vague.
According to Waggoner, “Because Mirkarimi was not sheriff at the time of the alleged misconduct, Lee’s suspension amounts to an abuse of discretion. We are a city and nation of laws, and there is a legal standard that must be followed. By suspending the Sheriff for conduct that occurred before he assumed office and is not directly related to his job duties, Mayor Lee failed to follow the law.”
Waggoner, a litigation attorney who enjoys a reputation for leaving no stone unturned, has successfully defended several high-profile clients before the city’s Ethics Commission, a five-member quasi-judicial body consisting of political appointees.
Waggoner will ask the Superior Court to set a court date to hear arguments on the writ in the next week.
If Mirkarimi is unsuccessful in Superior Court, the city’s Ethics Commission is charged with holding a hearing – expected to begin in late April when Ms. Lopez returns from a court-approved visit to her native homeland, Venezuela – and submit its findings to the Board of Supervisors for a vote. Nine of eleven supervisors, or three-fourths of the Board’s sitting members, must vote in the affirmative to remove an elected official from public office.
The Ethics Commission proceeding is without precedent and could involve an interesting witness list, Waggoner said.
Responding to the writ filing, City Attorney Dennis Herrera spokesperson Matt Dorsey said, “We’re aware of the news report in Fog City Journal about today’s Superior Court filing. We haven’t seen the actual pleading yet, but we intend to confine our comments to the formal legal brief we’ll file in response.”