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.”