Mayor and City Attorney Subterfuge Exposed

Written by Luke Thomas. Posted in News, Politics

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Published on June 15, 2012 with 44 Comments

Mayor Ed Lee (left) and City Attorney Dennis Herrera (right).  File photo by Luke Thomas.

Mayor Ed Lee (left) and City Attorney Dennis Herrera (right). File photo by Luke Thomas.

By Luke Thomas

June 15, 2012, 12:13 pm

Efforts by Mayor Ed Lee and City Attorney Dennis Herrera to avoid a costly and potentially embarrassing Ethics Commission inquisition into whether suspended Sheriff Ross Mirkarimi is guilty of official misconduct have been tainted by falsehoods and false accusations, a Fog City Journal investigation has revealed.

Lee’s claim, as reported by KGO-TV, that he was “not aware of any offerings” made by Herrera to Mirkarimi’s attorneys for settlement in return for Mirkarimi’s resignation is false, confirmed a reliable City Hall source with knowledge of the settlement overture who spoke on condition of anonymity.

The San Francisco Bay Guardian first broke the news of the City’s effort to settle the case on June 5, relying on unnamed but reliable sources. Fog City Journal has subsequently discovered that Herrera, according to multiple reliable sources, was the source of the leak.

“Absolutely false,” said City Attorney spokesperson Matt Dorsey in response to FCJ inquiry.  “There’s was never a negotiation or offer so I don’t think there was a leak about one.”

It is understood that should the Ethics Commission inquiry proceed, Mayor Lee will be called to the witness stand to justify his suspension of the democratically elected sheriff and may be subjected to cross-examinations about his own conduct and the conduct of subordinates under his leadership.  The overture for settlement is also being viewed as a possible sign of weakness in the City’s case that could end up costing taxpayers millions in legal costs.

The inquiry could also dredge up previous cases of domestic violence involving publicly elected officials as well as cases that meet the broad definition of official misconduct as defined in the City Charter, cases that were never pursued.  Mirkarimi, an independently minded progressive, and his wife, Eliana Lopez, have maintained from the outset that the zealous nature of Mirkarimi’s prosecution is politically motivated.

Following the publishing of the Bay Guardian story, Herrera accused Mirkarimi attorney David Waggoner of leaking the details of the confidential settlement talks between Herrera and Waggoner and in doing so violated a pre-agreed lawyer-to-lawyer confidence.

According to Waggoner, Herrera called him at approximately 9 pm on June 5 saying he was “disappointed in [Waggoner’s] lack of integrity” for leaking the confidential settlement talks to the Bay Guardian when it was Herrera, himself, who was responsible for the leak.

“It was Herrera who violated our confidential conversations and went and talked to a journalist to try to get that journalist to pressure Ross into settling,” Waggoner told Fog City Journal.

Tim Redmond, editor of the Bay Guardian, said that nobody on his staff was ever involved in trying to “pressure” Mirkarimi into anything. “We’re journalists. We are not the sheriff’s attorneys or advisers and have not had – and would never have – any role in any negotiations of this kind,” Redmond said.

He said he would never comment on the source of any information given to the paper in confidence.

According to Waggoner, though no specific offer was made, and none accepted, it was made clear by Herrera the City was intent on settling the case. Between May 18 and May 25, Herrera and Waggoner had a series of conversations, initiated by Herrera, during which they discussed a possible settlement amounting to Mirkarimi’s resignation in exchange for possible healthcare benefits, a monetary settlement and keeping under seal a video of a tearful Lopez pointing to a bruise on her inner right arm inflicted by Mirkarimi during a heated argument on New Year’s Eve.

But because media organizations had filed requests under the Public Records Act for the video’s release immediately following Judge Wong’s order on May 15, ordering the video’s release to the City Attorney, Herrera was initially non-committal in protecting the confidentiality of the video.

In subsequent telephone conversations, however, Herrera told Waggoner the City could withhold the video’s release to the media in return for Mirkarimi’s resignation.

After ten business days had elapsed and with no settlement deal in sight, Herrera released the video to the San Francisco Chronicle despite a pending protective order lodged with the Ethics Commission by Lopez attorney Paula Canny requesting the video be kept under seal to protect the privacy rights of Lopez and the couple’s son, Theo.

Canny has since filed an official misconduct complaint against Mayor Lee with the Ethics Commission for releasing the video.

The mayor’s office did not respond to a request to reconcile the mayor’s comments to KGO-TV, referring our inquiry to the City Attorney.

Luke Thomas

Luke Thomas

Luke Thomas is a former software developer and computer consultant who proudly hails from London, England. In 2001, Thomas took a yearlong sabbatical to travel and develop a photographic portfolio. Upon his return to the US, Thomas studied photojournalism to pursue a career in journalism. In 2004, Thomas worked for several neighborhood newspapers in San Francisco before accepting a partnership agreement with the SanFranciscoSentinel.com, a news website formerly covering local, state and national politics. In September 2006, Thomas launched FogCityJournal.com. The BBC, CNN, ABC, NBC, CBS, Fox News, New York Times, Der Spiegel, San Francisco Chronicle, San Francisco Magazine, 7x7, San Francisco Examiner, San Francisco Bay Guardian and the San Francisco Weekly, among other publications and news outlets, have published his work. Thomas is a member of the Freelance Unit of the Pacific Media Workers Guild, TNG-CWA Local 39521 and is a member of the Society of Professional Journalists.

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  • http://www.facebook.com/ideaman David Elliott Lewis

    Thanks for reporting on this – for shining some light on these dark dealings.

  • http://twitter.com/justizin Justin Alan Ryan

    Great story, luke! :)

  • http://www.facebook.com/annie.garrison Ann Garrison

    Good work.  I’m posting to my Facebook page and Twitter accounts.   Herrera should lose his license to practice law for releasing that video.

    • Kcurrie

      Obviously both you and Luke are not familiar with the law.   Per the State of California’s Sunshine law that video had to be turned over to any requesting entity.  Rather than blast Herrerar for following the law – why not blast the news agencies for airing the video.

      • http://www.facebook.com/annie.garrison Ann Garrison

        Do you have a legal citation that says such requests override all privacy protection, including the Victim Witness Protection Act?  It seems most unlikely that Eliana Lopez’s lawyer Paula Canny would have a motion in play if there were no law to argue in her client’s behalf.  

      • http://www.facebook.com/rsn2000 Lou Gordon

        Kcurrie, good point I’m going to ask the sunshine task force to hand over the cost records from the DA’s office, Mayor’s office and City Attorney’s office because I am paying the bill as is any tax payer in SF. I think the city has played this out way to  far. No violence is acceptable, but every human being in the world argues with their friends, family members and especially their mates!!!

      • http://www.facebook.com/profile.php?id=1103672366 Marc Salomon

        The video was not a public record, it was a piece of evidence. The Sunshine ordinance applies to public records not pieces of evidence. Of course, the hostility of Herrera’s office to matters sunshine when it comes to San Franciscans seeking to figure out what government is up to, reading the law in favor of bureaucrats, contrasts sharply with its liberal interpretation of the law in this instance.

  • Namaste

    No scoop here, just a case of he said, he said.
    You can either believe Waggonner or Herrera.

    • http://www.facebook.com/annie.garrison Ann Garrison

      I wouldn’t believe every “reliable source who spoke on condition of anonymity” at City Hall, or “multiple reliable sources” in or near the City Attorney’s office, but when they’re talking to Luke Thomas, I do.

      • Namaste

        Don’t believe any journalist covering the Mirkarimi scandal.
        Everything written so far seems blasted by both sides for and against. The FCJ and SFBG articles are primarily supporting the “witch hunt” motive of Mirkarimi’s demise with many comments even throwing Eliana under the bus. While the Chron and Examiner feeds the “absolutely not political” crowd who throw Mirkarimi under the bus.
        He should have never pled guilty, maybe bad advice from his attorneys because now he will forever be an ex-convict, stemming from a DV incident no less.
        I can understand that is why he is losing so much support.

        • http://www.facebook.com/annie.garrison Ann Garrison

          The biggest mistake press is making is continually referring to Ross’s plea and conviction as a domestic violence offense.  He pled guilty to an obscure NONviolent offense.  I talked to him yesterday for KPFA but didn’t have time to ask whether he’d have done that if he had any idea this might happen.  I doubt it because the standards of proof are so much lower here than in court.

          • Namaste

            Ann,
            Don’t believe everything Luke or Ross has to say and bash everyone else.
            The truth is he pled to false imprisoning his own wife stemming from a domestic violence incident.
            If false imprisoning your wife is a nothing charge to you, you’re credibility is as low as Ross’.
            You appear less of a unbiased interviewer, and more of a ‘do as I say not as I do’ progressive conspiracy theorist.
            I supported Ross, before I knew he abused Eliana.

  • sophie

    This was not a big story to begin with — it was a story about a man and his wife having a big argument in front of their child.  The man took the wife’s arm because she was acting hysterical and he was angry about her wishing  to return once again to VZ with their child.  He tried to calm her down and thus the infamous bruise on her arm.

    This whole story has taken on a life of it’s own with an over-zealous interest group and an opportunistic SF political system. 

    How much more damage does the City want to do to a man who gave his City everything and tried to do with right with his new family and now it appears to be all taken away…..

  • Ralph E. Stone

    Eliana Lopez is the interesting person in this whole episode.  As I remember, she wanted the video made in case of a divorce.  If there was a divorce, she worried about custody of their son.  Now, Lopez is comfortably settled in Venezuela with her son.  Will she return to stand by her man at the Ethics Commission hearing?  Probably not.  If she does not, the video will be important evidence against Mirkarimi with no Lopez to try to explain it away.  That’s why the vigorous fight over the video.  I know Lopez has made carefully crafted statements to the media, but those statements are not sworn testimony subject to cross-examination.  If Lopez did want a divorce with custody of their son from the beginning, everything is working out nicely for her.  

    • http://www.facebook.com/annie.garrison Ann Garrison

      Ralph, what’s the point of speculating about someone else’s family life like this?  What do you hope to accomplish?  Eliana Lopez is an adult woman quite capable of speaking for herself.  Even the Chron finally published her own editorial, in which she said that she loved Ross, that the City hadn’t let her see him for months, that where she comes from they call this a “golpe d’estado,” and that she supports him completely in this. She told the TV reporter who went down there that they might get divorced but that in this they’re completely together, that it’s about justice.

      The family court should let them talk to one another about the future of their relationship.
      It’s hard to imagine how any marriage could survive a multi-million dollar, legal, political, and media assault, but I wish them luck.  

    • http://www.facebook.com/rsn2000 Lou Gordon

      Dear Ralph, you obviously don’t know her personally because she does stand by her man. Unfortunately he was suspended without pay so he has no way to support his family at the moment. I respect your opinion but don’t necessarily agree with your logic. I do know both of them and know the pain and suffering the 3 of they are experiencing. Have you every been married? have you ever had a disagreement with your partner or significant other? Well if either of those answers are YES then just know that arguments are nothing nice for anyone to go through. As for the Ethics Commission over 200 supporters stood by her man at her request!! Are you a SF tax payer? I am and as far as I’m concerned I will gladly give you my portion of the enormous costs this dog and pony show is costing working class people!!

  • Strickla

    “Absolutely false,” said City Attorney spokesperson Matt Dorsey in response to FCJ inquiry.  “There’s was never a negotiation or offer so I don’t think there was a leak about one.

    In other words, you’re calling the very well-paid, official City Attorney spokesman Matt Dorsey a flat-out liar. The fact that he’s a liar isn’t particularly surprising, but shouldn’t there be some consequences for being caught red-handed in that kind of public falsehood, starting with being booted off the DCCC?

    • http://www.facebook.com/annie.garrison Ann Garrison

      Indeed.  We certainly have to conclude that someone or several people are lying, or saying something they can’t really be sure of.   All kinds of unpleasant possibilities.

  • http://www.facebook.com/rsn2000 Lou Gordon

    I  don’t personally think this case deserved this kind of zealous prosecution. I believe there has never been any real DV between the sheriff and his wife.  I think politics caused this case to get blown way out of proportion. Feminist organizations that should have supported Eliana chose to take the word of a neighbor over hers. I don’t know any couple in the world that doesn’t have disagreements or even heated arguments!! A slight touch is not violence or abuse in the case of a minor confrontation. I do agree it should not have happened and I have talked to both of them one-on-one and they have both disclosed that they care for each other and this has been the true test of their conviction to each other. PLEASE leave them alone and let them repair the damages that have been done to their marriage and family. BOTTOM LINE I AM A TAX PAYER AND DO NOT WANT TO FOOT THE BILL FOR THIS WEAK PROSECUTION, better yet (PERSECUTION OF A DULY ELECTED OFFICIAL WHO HAS THE SUPPORT OF THOSE WHO ELECTED HIM.)

    • NoH8r

      It would be nice if they left San Francisco alone.

  • http://www.facebook.com/annie.garrison Ann Garrison

    This is an aside to the main discussion here, but I just learned that the Board is going to have to vote on this in any case.  I didn’t think they’d have to do that unless the Ethics Commission recommended removing Ross from office.

    • http://pulse.yahoo.com/_LSBUHQYPHL2GEESTZGNXZGB2EY sfsoma

       Exactly why I take all your comments with a huge grain of salt.   You do not stay sufficiently informed about SF politics to be a reliable commenter.  Do you even read or view anything that contradicts you viewpoint?

      • http://www.facebook.com/annie.garrison Ann Garrison

        Yes.

  • davidinSF

    I feel it’s time that a fundraiser was created to buy a set of balls for the so called progressive supervisors Avalos, Champos, Chu and Mar, what to get for Kim and Olauge we are open for suggestions.

    • http://www.facebook.com/annie.garrison Ann Garrison

      Kim and Olague had whatever it took to vote against naming a navy ship the USNS Harvey Milk.

  • Vivian

    This whole “process” ignores all precedent. Officials who have inflicted actual domestic violence, and defied court orders have passed unnoticed by the press and City Hall. Yet Ross inadvertently caused a bruise and was removed from office without pay? To force apart a family is beyond comprehension. The whole scenario is outrageous. Ross deserves to be sheriff and we deserve to have him. The mandate is clear — Ross received more votes in Nov. than did Ed Lee. He is a great man who will do a great job.

    • NoH8r

      The popular statement among Mirkarimi’s cult followers on ” Ross got more votes than Mayor Ed Lee” is ridiculous.
      Ed Lee was elected Mayor and Ross was elected Sheriff, end of that story.
      However, the electorate at the time were unaware that Ross was capable of domestic violence by grabbing and bruising his wife.

      Mayor Ed Lee is doing an outstanding job as Mayor by suspending Ross and setting a precedent that Domestic Violence will not be tolerated in SF, no matter who it is.
      For those who want to go backward and support the abuser, you ought to be ashamed of yourselves.

  • Ralph E. Stone

    Ann, I am somewhat surprised by your comment.  You present Eliana Lopez as a poor, naive victim from a backward country.  But she is no country bumpkin.  She has years as an actress in TV series shown throughout Latin America.  And Venezuela is no backward country.  In some sense, Eliana Lopez is a key figure in this ongoing Mirkarimi telenovella.  Her visit to ivory Madison and the making of the video started this whole drama.  Her motive for making the video is a key factor in this case.  And no Lopez has not come clean.  If you will notice all her carefully crafted statements to the media were not subject to cross examination or even questioning by the media.  All other statements have been through her attorney.  She should be a key witness for Mirkarimi.  Yet, she trots off to Venezuela with her son.  Remember, the supposed reason for the original argument was about Mirkarimi’s objection to her request to leave for Venezuela with their son.  I think you underestimate Ms. Lopez.

    • http://www.facebook.com/annie.garrison Ann Garrison

      Ralph, that is an insult to both Eliana Lopez and me.  How dare you?  I said absolutely no such thing, not even anything close, and I didn’t say anything at all about Venezuela, much less about Venezuela as a backward country.  I don’t think there’s any country more backward than the U.S., whose most evidenced and experienced impact on the rest of the world is its empire of bases and overwhelming military force.

      What I did say was:  ”Ralph, what’s the point of speculating about someone else’s family life?  . . . Eliana Lopez is an adult woman quite capable of speaking for herself.  Even the Chron finally published her own editorial . . . ”  (Full comment below.)  
      Here’s a picture of Rosario Cervantes, one of many women, many of them Black and Latina, who came to the first Ethics Commission hearing to speak out for Ross, and to hold up signs saying “Respect Eliana.”  I suggest you do the same.

  • http://www.facebook.com/annie.garrison Ann Garrison

    Ross writing in the Chronicle on Father’s Day:  http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/06/15/IN2S1P2RGB.DTL

  • Ralph E. Stone

    In a 22-page declaration, sheriff’s neighbor Ivory Madison describes abuse far worse than Mirkarimi’s account  

    • http://www.facebook.com/annie.garrison Ann Garrison

      OMG, Ralph.  You’re a lawyer and you know that that horrible statement of hers was more hearsay than anything else.  If you watched the webcast of the hearing, you no doubt saw Commissioner Renne’s outrage.

  • Richmondman

    The real issue is whether or not Ross, his wife and/or his paid representative (attorney), attempted to coerce Ivory Madison into witholding or destroying evidence related to a police investigation. 

  • DavidinSF

    @richmondman it’s a case of she said they said can’t be proven either way.
    What can be proven is the vast amount of taxpayers money being spent/wasted on this prosecution of our elected sheriff.

  • Richmondman

    @David – Remember, the rules of evidence are not the same in an ethics investigation as they are in either a criminal or civil case.  The burden of proof is much lower in this case.   But the issue is whether or not the Sheriff, after he was elected, attempted to stop a criminal investigation about him.  That is not a waste.

  • DavidinSF

    @ richmondman It still comes down to she said they said at this point in time there is no evidence either way.

  • PatrickMonkRn

    ED LEE’S AGENDA EXPOSED.
    GET ROSS.
    As reported by Rachel Gordon in today’s Chronicle, shortly before the Ethics Commission hearing our fair and balanced Mayor “Mr Ed” responded to a  question asking if Mirkarimi’s bruising his wife’s arm was enough to remove him from office as follows “He ought not to have engaged in the beating of his wife”. So now a possibly inadvertent bruise constitutes ‘wife beating’ and the implication that this is a pattern of behavior. All city officials who have expressed similar sentiments should be barred from presenting their biased and politically motivated testimony in this case.
    How about you?. Have you stopped beating your spouse yet?

    • Richmondman

      “Possibly inadvertent bruise” = “possible wife beating”.  Per Rachel Gordon – Madison based her account on a conversation she had when she said Lopez visited her home next door on Jan. 1. “Eliana told me that the verbal abuse continued in the house and escalated to physical abuse, and that both went on for some time. … During that time, she said that Ross repeatedly grabbed, pulled and pushed her violently,” Madison stated. “Specifically, she said he slammed her against a wall while grabbing her arm and refused to let go.”Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/06/16/BARP1P392S.DTL#ixzz1yNh6ByYW

      • http://www.fogcityjournal.com/ fogcityjournal

        For those who want Mirkarimi’s scalp, hearsay evidence is good enough proof.  For those who want justice, hearsay “evidence” is not proof.

        • Richmondman

          There is testimony of two neighbors, with corroborating evidence provided by Eliana in the video.  There was an admission of guilt to a crime by Mirikirimi related to this event.  There is testimony by the neighbor that Mirikirimi’s lawyer tried to quash a criminal investigation of his client.  There is evidence (phone records) between Mirikirimi’s lawyer and the neighbor.  There is plenty of evidence to pursue this matter.  Ross may indeed retain his job, but this is no witchhunt.  He brought this on himself.  But for those who are “true believers” in Ross, no evidence will be adequate.

  • DavidinSF

    Re. Mirkarimi
    First Ethics hearing on Tuesday, Mirkarimi came out the winner, Chronicle was given access to Mirkarimi’s text messages NO SMOKING GUN in fact quite the opposite. See today’s edition.
    Team Mirkarimi 2 Ed Lee and his team 0
    How much SF tax payers money has been wasted on this witch hunt? This is the real crime,
    not Mirkarimi bruising his wifes arm.