steve@sfbg.com
When Mayor Ed Lee suspended Sheriff Ross Mirkarimi in March, he publicly took the position that it was an act of official misconduct when Mirkarimi grabbed his wife’s arm during a Dec. 31 argument, subsequently pleaded guilty to false imprisonment, and was placed on probation for three years.
Lee and his allies said that under those conditions, Mirkarimi could no longer effectively function as the city’s top elected law enforcement officer and that his actions clearly violated the City Charter’s ban on "conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers."
The City Attorney’s Office, through deputies Peter Keith and Sherri Kaiser, has maintained that position throughout the investigation and Ethics Commission proceedings over the last five months. On August 16, on a 4-1 vote, the commission agreed and recommend the Board of Supervisors find its former colleague guilty of official misconduct, which would almost certainly result in his removal from office.
But that simple set of facts and interpretations belies the ugly spectacle that Lee and the City Attorney’s Office actually decided to create — at great cost to taxpayers, Mirkarimi’s reputation, and the public’s faith in the proceedings — over the last five months.
Instead of sticking by their initial position, Lee and his attorneys decided to pile on a long list of other official misconduct charges: dissuading witnesses to his crime, impeding a police investigation, abusing his authority in several ways, engaging in a pattern of abuse of women, refusing to cooperate with a city investigation, lying to officers in a scheme to keep a gun, and other charges.
Almost all of those accusations were included in the original written charges that Lee filed on March 21 — before the city had actually begun its investigation to learn whether there was any evidence to support them. Keith and Kaiser continued to make all those accusations right up until the end.
When the Ethics Commission finally deliberated on August 16, going through each of the main factual allegations against Mirkarimi, one by one, it unanimously agreed that there wasn’t enough evidence to support any of those other charges, even using the "preponderance of evidence" standard that is lower than the "beyond reasonable doubt" standard used in criminal cases.
So in the end, the case against Mirkarimi ended at the same place where it began: with the question of whether pleading guilty to a misdemeanor act of domestic violence warrants the removal of an elected official. But the implications and repercussions of what has transpired over these last five months could be felt for many years, in ways that it’s impossible to predict today.
WHAT IS OFFICIAL MISCONDUCT?
With very few legal precedents to guide them, the commissioners spent most of the nine-hour hearing on Aug. 16 wrestling with how to interpret the city’s untested new official misconduct language, how directly the wrongful behavior must relate to the office, and whether broadly interpreting those two issues gives too much power to the mayor.
Underlying that discussion is the question of whether the statute and the city’s interpretation of it will eventually be struck down as unconstitutionally vague by the courts, which Mirkarimi will likely turn to if the board removes him from office. But the commission pointedly refused to enter that debate, with Commissioner Jamienne Studley saying, "I don’t think determining constitutionality is what I signed on for as a commissioner."
Chair Benedict Hur, the sole dissenter in recommending a finding of official misconduct, expressed far more concern about the precedent they were setting than with the fate of Mirkarimi, whose actions he strongly condemned as "clearly wrongful and unlawful."
"There has to be a direct relationship of the behavior to the office held," Hur said. "If we don’t find a nexus, we are opening this provision up to abuse down the road."
Commissioner Paul Renne led the charge in interpreting misconduct in the broadest possible way, arguing it didn’t even have to be related to his official duties. "There’s nothing in that clause that says the misconduct has to relate to the office," Renne said.
But Hur called that a "dangerous precedent," saying he has "grave concerns" about how such a broad interpretation could be applied in the future. "I have a lot of concerns about where you draw the line if you don’t relate it to official duties," he said.
For example, could members of the Board of Supervisors be removed after getting arrested at demonstrations — as has happened many times before in connections with labor and other disputes — or even for using colorful language with constituents or colleagues that might violate a future mayor’s "standard of decency?"
Mirkarimi attorney Shepherd Kopp said there’s a good reason why recall is the preferred means of removing an elected officials accused of wrongdoing, calling the charter "an imperfect document" that can’t cover all circumstances — indeed, it doesn’t allow for the removal of mayors, even those who commit serious crimes — noting that "this is a rarely brought proceeding and it can have the effect of contravening the will of the electorate."
"These proceedings," Kopp said, "are far too susceptible to the vagaries of politics."
THE PILE-ON
Lee’s decision to overcharge Mirkarimi could be a costly one. The City Attorney’s Office won’t release expenses associated with ongoing legal actions like this one, but most indications are that it will run into the millions of dollars, perhaps many millions depending on how Mirkarimi fares in the courts if he is removed and challenges the city’s actions.
According to the City Attorney’s Office, the official misconduct proceedings against former Sup. Ed Jew in 2007 cost the city $381,505 in legal fees, but that was a relatively short and simple proceeding, with just one Ethics Commission hearing and couple of state court appearances before the case was settled.
By contrast, the case against Mirkarimi has already entailed five months of detailed exchanges between the two sides’ attorneys, covering a wide array of legal issues, and months-long investigations of matters only tangentially related to the core charge. The city has paid out money for expert witness. Mayor Lee cast a wide net to catch the fish that he had already hooked before setting out to sea.
Even if the Jew case had played out to completion, it would likely have cost just a fraction of what Mirkarimi’s will, for a simple reason: Mayor Lee acted quickly and brought a broad array of charges before investigating them. Then-Mayor Gavin Newsom investigated whether Jew really lived in the city and then brought just that narrow charge.
The simple residency question was enough to warrant Jew’s removal, and Newsom didn’t even need to get into the far more serious corruption charges related to Jew being caught with $80,000 in marked bills as part of an FBI extortion sting, for which Jew is still serving a five-year term in federal prison.
Lee has refused to justify his decision to pile on the charges and introduce defamatory declarations unsupported by direct evidence, such as the long declaration of key witness Ivory Madison, most of which was stricken from the record after Commissioner Paul Renne called it "clearly hearsay, clearly having the intention of poisoning the well" and said "a first-year lawyer should know that much of it is inadmissible and it should not have been given to us."
Even though Keith apologized to Renne and the commission, Lee and his lawyers continued to defend much of that declaration and use it as the basis for many of their most incredible accusations.
"You received a great deal of evidence, most of it from the mayor and most of it unchallenged," Keith said in his closing statement, glossing over the multitude of challenges and the fact that most evidence doesn’t support the city’s charges.
Mayoral Press Secretary Christine Falvey wouldn’t address a list of Guardian questions about overcharging the case and continuing to rely on discredited evidence. Instead, the Mayor’s Office stands by this Aug. 16 prepared 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."
City Attorney’s Office spokesperson Matt Dorsey said his office also stands by the process: "We respect Ethics Commissioners’ differing opinions about the remaining counts. But nothing about the commission’s conclusions would cause us to pursue these charges of official misconduct differently if we had to do it over again."
But Mirkarimi’s team says it is Lee who has repeatedly sought to distract and misdirect the public, whether through unsubstantiated claims in his charging documents or Lee’s public statements that Mirkarimi "beats his wife" and other comments that blow a single arm-grab out of proportion.
"What the commission has effectively done is agreed with us that’s the only issue," Mirkarimi attorney David Waggoner told reporters after the hearing, noting that he had offered to stipulate to those facts from the beginning and avoid a prosecution that his closing brief deemed "a dog and pony show." Mirkarimi also told reporters that "the piling on of these charges has weighted us down" and complicated his defense. He added, "I leave this process concerned that the will of the voters is being undermined."
THE PRICE OF OVERKILL
Perhaps it was understandable for the city to use over-the-top tactics on Mirkarimi, who has certainly been weakened by proceedings that generated reams of fodder to be used against him in future elections if he survives the board’s removal vote. But the tactic also seems to have hardened the stance of Mirkarimi’s supporters and fed their conviction that this was a politically motivated prosecution and misuse of public resources.
During more than three hours of public testimony on Aug. 16, with each speaker strictly limited to less than two minutes each, speakers overwhelmingly favored Mirkarimi and condemned the city case as overkill.
"Some of the things done in this case, and the levels this has gone to, is outrageous," said Brenda Barros, who works in the city’s public health clinic and said these resources could be better applied to help the "seriously abused women" she works with. Barros called the city’s case "a political witch hunt."
"I think Mayor Lee has overstepped his boundaries and I think you should find that as well," said Pedro Fernandez, a private investigator and former San Francisco Police officer.
David Elliott Lewis, a member of the city’s Mental Health Board, noted that the Sheriff’s Department has no civilian oversight, making the role of an elected sheriff who is progressive and independent of the city’s good-old-boy police culture all the more important. "Those who claim otherwise are really politically motivated," he said.
One issue left unresolved by the Ethics Commission is whether Mirkarimi should be removed even though the case against him was substantially whittled down. In fact, several commissioners indicated during the hearing that they thought the findings and punishment were separate issues.
"Do you agree that it is a two-step process we have to deal with?" Renne asked Keith, referring to the official misconduct finding and whether Lee abused his discretion by removing Mirkarimi.
"There is a determination of, are the consequences appropriate to the wrongful action," Keith replied.
But later, when attorney Scott Emblidge — who is volunteering his legal services to both the Ethics Commission and Board of Supervisors on this case — offered his interpretation that the charter language requires removal of officials found to have committed official misconduct, the commission accepted that and opted not to consider recommending a lesser punishment to the Board of Supervisors.
Mirkarimi’s team objected to the commission’s rewriting of new charges based on its evidentiary findings, and things got so confusing by the end that the commission decided to meet one more time in early September to finalize its recommendation.
So the case probably won’t get to the board until mid-September. Nine votes are required to remove Mirkarimi and the charter requires the board act within 30 days, meaning that final vote will be just a few weeks before the Nov. 6 election, timing that will only increase perceptions that politics will largely determine its outcome.