By Luke Thomas
August 18, 2012
The San Francisco Ethics Commission Thursday sustained two of six charges of official misconduct lodged against suspended Sheriff Ross Mirkarimi by Mayor Ed Lee, a decision reached after the quasi-judicial body struggled to interpret and apply an untested definition of official misconduct as defined in the City Charter.
In its 4-1 decision, with Chair Ben Hur in dissent, the commission rejected as not credible star witness testimony of Mirkarimi’s wife, Eliana Lopez, who testified under oath her husband did not abuse her on December 31 when, during a heated argument, Mirkarimi grabbed Lopez’s arm and caused a bruise.
Instead, the commission relied on a video of a tearful Lopez, recorded January 1 by the couple’s neighbor, Ivory Madison, who urged Lopez to make the video, which, Madison said, could be used against Mirkarimi in the event the couple sought divorce, or entered into a child custody battle.
Madison, without consulting Lopez or seeking her permission, reported the incident January 4 to police, triggering a criminal investigation and a cascade of administrative and legal hardships imposed on the family including the mayor’s suspension of Mirkarimi without pay and the couple’s forced separation.
Citing “insufficient evidence,” the commission unanimously rejected the mayor’s amended charges of witness dissuasion and impeding a police investigation (count 3), abuse of office (count 2), or that Mirkarimi committed domestic violence (count 1).
Instead, the commission said Mirkarimi’s action on December 31 that led to his plea and conviction of misdemeanor false imprisonment (count 4), was in effect a breach of conduct code required of a Sheriff-Elect (count 5). Count 6, also rejected, contained the same charge as count 5 but was applied to the office of supervisor, the position Mirkarimi held until he was sworn in as Sheriff on January 8.
By sustaining at least one of the mayor’s charges, the commission is implicitly recommending to the Board of Supervisors that the sheriff should be removed from office, said Scott Emblidge, legal counsel representing the commission and the Board of Supervisors.
“If not so sustained, then the suspended officer shall be reinstated,” Emblidge added.
The quasi-judicial body comprises five political appointees – three of whom were appointed by the elected heads of the departments directly involved in the criminal and administrative prosecution of Mirkarimi, raising questions as to whether the appointees could adjudicate the matter without some measure of partiality.
Mirkarimi and Lopez have maintained from the outset that the zealous nature of Mirkarimi’s prosecution is politically motivated, a belief bolstered by the mayor’s alleged perjury on the witness stand.
That partiality was tested over the sometimes dizzying interpretations of the definition of official misconduct with Commissioners Paul Renne (appointed by District Attorney George Gascón), Beverly Hayon (appointed by Mayor Lee), Dorothy Liu (appointed by the Board of Supervisors) and Jamienne Studley (appointed by City Attorney Dennis Herrera) stating that the requirement test of “wrongful behavior by a public officer” in relationship “to the duties of his or her office” is met because the Sheriff oversees domestic violence programs.
But, during the course of the ten-hour meeting, which included public comment from a majority of Mirkarimi supporters, commissioners characterized the official misconduct definition as “murky,” “ambiguous,” “vague,” “broad” and “unconstitutional.”
Hur, who was appointed by Assessor Phil Ting, said, in his view, there had to be a direct relationship between the wrongful behavior and the office held, basing his interpretation on a legal precedent set in the 1980 appellate case of Joseph P. Mazzola vs. City and County of San Francisco, a decision resulting in the overturning of Mazzola’s suspension.
“If we don’t find a nexus to the relationship of the duties, then we are opening this provision up to abuse and manipulation down the road in a way that we’re not really going to like,” Hur said. “I have grave concerns about what the next case looks like unless we interpret this in a way that I think the voters intended, and also that is narrow and understandable for elected officials,” adding later in the session that the untested interpretation of official misconduct made Mirkarimi a “guinea pig.”
“In this case, while this took place – in that twilight zone if you will – between the time he was elected and he actually took office, nonetheless, as sheriff-elect, his duties of sheriff relate to… there is domestic violence and, you know, really quite a swath of San Francisco has cut nationally in terms of what we do,” Hayon said, “so it seems to me that if we read it that way, to me, that still means that what he did relates to the duties of office. Now I don’t know if that falls under the legal discussion that we’re having, but that’s how I would interpret it.”
Hur also raised the question of whether official misconduct or removal from office is applicable to Mirkarimi since he was not sworn into the office of sheriff until January 8.
“I guess the problem I have with tying the relationship to the effect, or the ability of the sheriff to perform the job going forward, is that it doesn’t seem to work from a timing perspective,” Hur said. “To me, this provision is talking about wrongful behavior that at the time you’re doing it is in relation to your duties, and I think a lot of the testimony we heard is about whether or not the sheriff is going to be effective down the road. He may very well not be effective as a sheriff, but I don’t think that’s in our purview, and if we’re going to say essentially what the mayor’s expert said, who said that any misconduct by a sheriff is official misconduct – and that is something that troubles me because it seems the parties can see that there is a difference between personal misconduct and official misconduct.”
Renne then responded with a hypothetical question, asking Hur that if Mirkarimi was running for re-election to the Board of Supervisors, whether an act of domestic violence would apply to the question of whether Supervisor-Elect Mirkarimi would be guilty of official misconduct.
“If he were re-elected to the Board of Supervisors, are you saying that he would not be subject to a claim of official misconduct because of domestic violence, because you wouldn’t have the same arguments that you would have about the duties of sheriff?” Renne asked. “But as I read this statute, it certainly would be an indication of conduct that did not meet the standard of decency and good faith and right conduct.”
Referring to the Mazzola decision, Hur responded, “No I do not think it would be official misconduct and the reason is because I think the precedent that we have that actually talks about – albeit in dicta – what relation to the duties of office mean, is pretty clear that there has to be a direct relationship of the alleged wrongdoing to the office held.”
“But that dicta was before this ordinance was ever passed,” Renne responded.
“The ordinance had been passed and the language that is now in the ordinance that’s in relation to the duties language, is the same precise language that Mazzola addressed,” Hur said.
After voting on the motion to sustain the reduced charges, the commission agreed to reconvene in the coming weeks to approve a written summary of its recommendation, which, together with a 15-inch stack of transcribed testimony, will be delivered to the Board of Supervisors for its considerations. If the Board fails to act on the recommendation within 30 days, a suspended officer is reinstated by default.
Nine of eleven supervisors must vote in the affirmative to remove an elected official from office. The Board could also vote to discipline Mirkarimi, rather than remove him from office, according to the Charter.
Following the decision, the mayor released a statement.
“I am pleased that the members of the Ethics Commission, following a careful review of the evidence, and in the face of a sustained campaign to distract and misdirect them from the facts, agreed with me that Ross Mirkarimi’s actions constitute official misconduct and fall below the ethical conduct we expect of the sheriff, our top law enforcement officer,” Lee said.
Mirkarimi, who said he was “overwhelmed” by the outpouring of public support, told reporters, “I appreciate the perspectives of the people who do no want to see me reinstated – they’re wrong. I could be a great sheriff that represents, I think, the need to make sure that all violence is eradicated and is tackled in an effective way in San Francisco.”