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.