Suspended Sheriff Requests Postponement of “Highly Charged” Board Vote

Written by Luke Thomas. Posted in News, Politics

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Published on September 10, 2012 with 12 Comments

Attorneys for suspended Sheriff Ross Mirkarimi (pictured with his wife, Eliana Lopez, at a ‘Stand with Ross’ rally on Sunday) today filed a brief with the San Francisco Ethics Commission requesting a postponement of a vote that will decide whether Mirkarimi will keep his job. Photos by Luke Thomas.

By Luke Thomas

September 10, 2012

Citing due process protections afforded by the U.S. Constitution, attorneys representing suspended Sheriff Ross Mirkarimi today filed a brief with the San Francisco Ethics Commission requesting the quasi-judicial body to postpone its submission of its findings of fact to the Board of Supervisors, the eleven-member legislative body that will decide if Mirkarimi will be reinstated or be permanently removed from office.

Such a delay would “avoid forcing a political train wreck at the Board in the midst of a highly charged political election,” the brief filed by defense attorneys David Waggoner and Shepard Kopp, states. “Sending the record to the Board immediately prior to an election deprives the Sheriff of a neutral decision maker, as guaranteed by the Due Process clauses of the 5th and 14th Amendments.”

Supervisors Eric Mar, David Chiu, Christina Olague, David Campos and John Avalos are each running to retain their seats on the Board that will be decided by voters on November 6.  Lee appointed Olague to the District 5 seat following Mirkarimi’s election to sheriff, and Mar is facing stiff opposition from former Recreation and Park Commissioner David Lee who is expected to exploit Mar’s vote in an attempt to unseat the incumbent.

Citing media reports, “Each member of the Board has been warned either directly or indirectly that he or she will face political wrath for his or her respective vote,” the brief states. “A normal judge or jury has no such interest in the outcome of a case; if they did, recusal or dismissal would be appropriate. Here, however, it is clear that each Board member’s vote may determine whether or not they retain their employment as members of the Board. Furthermore, the Mayor and his associates have raised hundreds of thousands of dollars for Board members running to retain their seats.”

Lee suspended Mirkarimi without pay following Mirkarimi’s plea and sentencing to one count of misdemeanor false imprisonment stemming for a heated argument with his wife, Eliana Lopez, on December 31 that resulted in a bruise on Lopez’ arm.

The Commission, which struggled to interpret and apply the definition of official misconduct to the Mirkarimi case, nevertheless voted 4-1 (Chair Ben Hur in dissent) to recommend Mirkarimi’s removal from office.

The Commission has tentatively scheduled to submit its findings to the Board following its September 11 meeting.  Nine of eleven supervisors must vote in the affirmative to remove a democratically elected official from office.  Should the Board not vote on the matter within 30 days of receipt of the Commission’s submissions, Mirkarimi would be reinstated by default, according to the City Charter.

“The Commission should continue this matter in an effort to minimize the political pressures at stake and give some semblance of fairness to the Board vote,” the brief concludes. “Fundamental due process should not be sacrificed on the altar of expediency.”

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/annie.garrison Ann Garrison

    This is the most in depth report I’ve read on this.  I particularly appreciate the detail regarding Eric Mar’s race.

    Seems it would be more than reasonable for Christina Olague simply to recuse herself, because of Debra Walker’s allegations and a chartered San Francisco Democratic club’s call for an investigation of the allegations that Mayor Lee perjured himself before the Commission. That would probably be enough to ensure that Ross is reinstated.   
    But, neither she nor any of the other Supes should be forced into weighing the personal political consequences of their vote to reinstate or remove.

    • RickinSF

      Just like Ed Lee “didn’t” discuss the case with Olague, I’m sure he also “didn’t” imply the consequences of her not backing him up.

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

    David Waggoner just told me that Commissioner Hur will be making this decision, most likely within the week.

  • Vivian Imperiale

    The very structure of this process has been an affront to democracy. First, the mayor removes a duly-elected official when it should have been up to the voters. The removal without pay was spiteful politics. Then Ross was judged by commissioners who were appointed by the very officials who are intent on removing Ross! Then his livelihood rests in the hands of his former colleagues who are under tremendous political pressure to remove him. Incredible lack of justice. 

  • PatrickMonkRn

    To: Ethics Commission. (cc to many others)
    “While I appreciate the attention you have given this matter, anyone with even a superficial grasp of SF politics knows that the prosecution of Sheriff Mirkarimi was politically motivated from the outset, and the result of your investigation was preordained. The least you could do to remove some of the stench of corruption is to postpone the BOS vote until after the November election, thus giving those up for re-election the freedom to consider the facts fairly without external political pressures.  The City Attorney’s statement that there is ‘no provision to delay the process’ is specious at best. When it is to their advantage the power brokers always seem to find a way to circumvent proceedure. I seem to recall that only last year a ‘special exemption’ was created to protect Ed Lee’s future in case he failed in his attempt to become Mayor; I can’t recall if that was before or after he stated that he had no intention of running. 
     To further illustrate the ‘appearance’ of selective enforcement and prosecution I find it revealing that the ‘disputed’ video presented in the Mirkarimi case was the basis for months of investigation and expense, yet the ‘undisputed’ video showing clear violations of the law during Ed Lee’s campaign was deemed ‘insufficient evidence to proceed’. Smells like a duck.”
                                                        *****************
    Anyone have working emails to individual Ethics Commission members.

  • Richmondman

    Ironically, progressives must depend on Christina Olague (whom they have condemned) to save Ross’ job.  Eric Mar won’t vote to save Ross’ job, because it will mean the loss of the election, because Ross has very little support in the Richmond.  If Christina votes against Ross, she will give up any chance to be re-elected, because he has more support in the Haight.  Campos and Avalos will vote for Ross, but nobody else want to get near him.  They know that when the shit flies, nobody stays clean. 

    • Daniele E.

      Hey, it shouldn’t be about “Ross has little support in the Richmond” or Ross has “more support in the Haight”. That line of thinking is ridiculous. It is about his actions, so who cares, really, about districts. Most people are too busy to be bothered with the details of this case. But these supervisors, knowing Ross’ fate is up to them, ought to have followed along.  
      But then you have the problem of the “fear factor”. These people—these supervisors—are only human. Unfortunately, too many well-meaning people will be swayed by fear. That is a form of ignorance, as not many have studied nonviolence (which is actually another word for “love-in-action”). Does this sound corny to you? Well, it shouldn’t. Love is stronger, wiser than fear, and I hope these supervisors have the guts and yes love, to really look at the facts and not react out of fear—fear of any kind, whether of what the thug-commenters on SFGate have to say, what the Mayor wants, what the anti-DV advocates want out of fear. These anti-domestic advocates held up their signs the moment Ross started to speak at his hearing—I saw them, I was sitting in back of them. They are reacting out of fear, and not listening. C’mon, San Francisco. We can do better than that. Can we live up to our name, City of Saint Francis? Will some of these supes have the courage to speak to that? We’ll see if any of them possess this kind of wisdom. I’ll be watching.

  • PatrickMonkRn

    That’s just the point, delay it, the BOS should be able to consider and make their decision without fear of retribution or external political pressure. This is about so much more than Mirkarimi’s job. “Special exemptions’ are frequently made…what’s good for the goose…..unless I guess you happen to be duck. 

    • Richmondman

      Actually, I think this is a great “Sunshine” moment for politics.  Let the voters know how their elected representatives really feel about this issue.  It seems like everyone has an opinion.  Bravo for no delay.  If Ross wins, so be it.  He will then have to face his constituents in the next election, or face recall if they get at it with petitions.

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

    Denied.

  • PatrickMonkRn

    Surprised – not.

  • PatrickMonkRn

    Richmondman.
    I beg to differ. This is the antithesis of Sunshine. Regardless of their ‘positions’, every Supe up for re-election is inevitably gonna be swayed by, fear of retribution, or fawning for favor; and subjected to external political pressure. Unfortunately this is how ‘politics’ is done in this company town. I am not a Rabid Ross Rooter, there are ‘issues’, but I think he has acknowledged them and is hopefully working to resolve them. This has never really been about DV, which rightfully concerns us all, but has from day one been about political business as usual in the Shitty Hall of Smoke and Mirrors. There was never any real doubt about the ultimate decision of the Ethics Commission, despite the gaping holes that Waggoner’s broadsides opened in their irrational reasoning and tortured illogic. If the BOS consideration and decision had been ‘rescheduled’ until after the election, everyone of them could have considered, judged and voted without fear or favor, but we all know from bitter experience that ‘Da Mayor’ don’t play that, so why expect his puppet to be any different. If the BOS find a way to overturn or rebuff Lee’s Charge, then you know the ‘Recall Ross’ troops will be on the steps of Shitty Hall the next morning waving petitions. That is probably the most ‘democratic’ outcome; the people will then be included and given the opportunity to confirm or reject their chosen representative. Will ‘we’ be given the opportunity to express our preference, probably not, as that would not be in the best interests of Da Real Mayor, The Pac/Pak Heights Mafia or the City ‘familia’.
    Just my thruppence.