Ethics Commission

Under oath

Andrew Lam
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19
Under oath

steve@sfbg.com

Mayor Ed Lee and suspended Sheriff Ross Mirkarimi each took some lumps on June 29 as they were cross-examined by opposing attorneys in front the Ethics Commission, which is conducting the official misconduct case that Lee brought against Mirkarimi over a Dec. 31 domestic violence incident. But the hearings proved unexpectedly dramatic when the room was suddenly cleared for an undisclosed security threat — following testimony by Lee that a city commissioner alleges included perjury.

The incident raises a number of issues that officials hadn’t yet answered by Guardian press time. Was the security threat real? If so, why wasn’t the room or the rest of City Hall properly secured after the mayor was whisked away? If not, who ordered the room cleared and why?

Undersheriff Paul Miyamoto, who ran against Mirkarimi last year, told the Guardian that the San Francisco Police Department notified his office that a caller claimed to have planted bombs outside of City Hall and on the Golden Gate Bridge. Deputies conducted a search and found nothing, and his office didn’t order the recess of the hearing. “We did not evacuate anyone,” he told us.

Speculation about the incident was heightened during the break when Debra Walker, a Mirkarimi supporter and longtime member of the city’s Building Inspection Commission, told the Guardian that Lee committed perjury when he denied speaking with any members of the Board of Supervisors before filing official misconduct charges. Lee was responding to a direct and pointed question from Mirkarimi attorney Shepherd Kopp — one that that Lee’s attorneys had unsuccessfully objected to.

Specifically, Walker said that her longtime friend and political ally Sup. Christina Olague — who Lee appointed to serve the last year of Mirkarimi’s term for the District 5 seat — had told her repeatedly that Lee had asked her advice before filing the charges against Mirkarimi, and that Olague’s advice was that Lee should ask for Mirkarimi’s resignation but drop the matter if he refused.

That allegation, which was first reported on the Guardian’s Politics blog shortly after the commission went into recess (Olague had not yet returned a call from the Guardian asking whether she had spoken to Lee about Mirkarimi), prompted reporters to confront Olague in the hallway outside her supervisorial office, where she tersely denied the allegation and then took refuge behind closed doors.

When the reporters lingered and persisted, waiting for a more complete answer, Olague finally emerged, reiterated her denial, refused to speculate about why her friend Walker would make that claim, and said, “We’re not allowed to discuss this matter with anyone before it comes to the board…I may have to recuse myself from voting on this.”

It was unclear why she thought recusal might be necessary, but if she does disqualify herself from voting on Mirkarimi’s removal later this summer after Ethics completes its investigation and makes its recommendations to the board, that would hurt Lee’s effort to get the nine votes needed to remove Mirkarimi.

When the Ethics Commission hearing resumed after a couple hours, Lee was again placed in a position of denying specific factual allegations that others have made, again raising the possibility that he committed perjury in his sworn testimony, which could expose him to felony criminal charges while undercutting his moral authority to remove Mirkarimi over the single misdemeanor count of false imprisonment that he pleaded guilty to in March.

The second instance was when Kopp asked Lee, “Did you ever extend any offer through third parties that you would find him another job if he resigned?”

“I don’t recall offering Sheriff Mirkarimi any job,” Lee replied.

Kopp specifically asked whether that job offer had been extended on Lee’s behalf by permit expediter Walter Wong or by San Francisco Democratic Party Chair Aaron Peskin, to which Lee replied, “Absolutely not.”

Mirkarimi supporters have told the Guardian that Peskin had made that offer, which Mirkarimi refused, shortly before the party chair publicly called for Mirkarimi’s resignation. The outgoing message on Peskin’s cell phone said he was unavailable and wouldn’t be checking his messages until July 5. Mirkarimi’s attorneys said they’re still figuring out how to respond to the developments and had no comment, but Walker said she’s willing to testify under oath.

But the dramas underscore the treacherous grounds opened up by these unprecedented proceedings, the first involving the Ethics Commission and the broadened definition of official misconduct placed into the City Charter in 1996. As baseball great Barry Bonds and former President Bill Clinton learned, being forced to testify under oath about sensitive topics can be a tough trap to negotiate.

 

MIRKARIMI TESTIMONY

Deputy City Attorney Peter Keith also seemed to be trying to spring that perjury trap on Mirkarimi as he took the stand on the morning of June 29 following an hour on the stand at the previous night’s hearing. Keith reminded Mirkarimi that he was advised not to discuss his testimony with anyone and asked, “Who have you spoken to since last night?”

“My attorneys,” Mirkarimi answered.

“What did you say to them?” Keith asked, drawing objections about attorney-client privilege that Commission Chair Benedict Hur sustained.

“Did you stop for coffee?” Keith then asked, seemingly concerned that Mirkarimi may have discussed his testimony with someone at the coffee shop that morning, which Mirkarimi denied. Keith let the allegation go but maintained an accusatory, hectoring tone throughout the next three hours that he had Mirkarimi on the stand, two more hours than he had told the commission he would need.

Much of the time was spent trying to establish support for the allegation that Mirkarimi had dissuaded witnesses and sought to thwart the police investigation, which was triggered by a call from Ivory Madison, a neighbor to whom Mirkarimi’s wife, Eliana Lopez, had confided. But the testimony yielded little more than the city’s unsupported inference that Mirkarimi must have directed Lopez and his campaign manager, Linnette Peralta Haynes, to contact Madison after she had called the police and urged her to stop cooperating with them.

Mirkarimi has maintained that he did nothing to dissuade Madison or anyone from talking to police, and that he wasn’t aware of the investigation or that Madison had made a videotape of Lopez showing a bruise on her arm until hours after the police were involved. He even sent a text to Lopez saying there was nothing he could do, as he noted.

“It was after 4pm on January 4 when I first learned of any of this,” Mirkarimi testified, later adding, “I was very clear to her in saying you can’t unring the bell, we have to follow through with this.”

Yet Lee and the deputy city attorneys who are representing him also maintain that they needn’t prove witness dissuasion or other allegations they have made, and that the Dec. 31 incident and Mirkarimi’s guilty plea to a single misdemeanor count of false imprisonment are enough to constitute official misconduct and warrant his removal, an interpretation that Mirkarimi’s attorneys dispute.

Keith sought to hammer home how Mirkarimi should have admitted to and publicly atoned for his crime right away rather than telling reporters it was a “private family matters” (which Mirkarimi admitted was a mistake) or fighting the charges by trying to discredit Madison publicly, an allegation he denies.

After unsuccessfully trying to get Mirkarimi to admit to directing efforts to question Madison’s credibility in local media accounts, Keith asked, “Did you ever direct anyone not to attack Ivory Madison?”

“I never directed anyone to attack or not attack,” Mirkarimi replied.

Keith also clarified that Mirkarimi denies the allegation Madison made that the physical abuse on Dec. 31 went beyond grabbing Lopez’s arm once in the car, as the couple has maintained. “It’s your testimony there was no punching, pulling, or grabbing in the house?” Keith asked, which Mirkarimi confirmed.

Yet Keith said that given the totality of what happened, Mirkarimi should have known he couldn’t continue on as sheriff. “Under those circumstances, wouldn’t resigning be the honorable thing to do?” Keith said, to which Mirkarimi replied that it’s a hard question and that he’s doing what he thinks is right.

Faced with friendlier questions from his own attorney, David Waggoner, Mirkarimi apologized for his actions, saying “I feel horrible and ashamed,” but that he was “sad and scared” to have his family torn apart against their will. He also said that he believes he can still be effective as sheriff because “what makes San Francisco special is our forward-thinking approach to criminal justice.”

Longtime Sheriff Michael Hennessey — who endorsed Mirkarimi and continues to support him — established a variety of programs emphasizing redemption and rehabilitation, hiring former convicts into top jobs in the department to emphasize a belief in restorative justice that Mirkarimi ran a campaign promising to continue.

“Never in my wildest dreams did I think I would be an example of what this redemption process looks like,” Mirkarimi said, choking back tears.

But Keith had the last word before Mirkarimi left the stand, belittling the idea that Mirkarimi offers an example to follow by noting how much probation time and court-ordered counseling he still has to undergo and asking, “The process of redemption doesn’t happen overnight, right?”

 

LEE ON THE STAND

Under questioning by Kopp, Mayor Lee admitted that he doesn’t have a written policy on what constitutes official misconduct, that his decisions are made on “a case by case basis,” and that he’s not sure whether conviction of a crime would always constitute official misconduct “because I’ve never confronted this before.”

“Were you aware that many members of the Sheriff Department have criminal convictions?” Kopp asked. Lee said he was not aware. Asked whether he was aware that Sheriff Hennessey had hired a convicted murderer into a top command staff position (see “The unlikely sheriff,” 12/21/11), Lee said he wasn’t.

Lee’s insistence that Mirkarimi’s crime makes him unable to deal effectively with other officials was also attacked by Kopp, who asked, “Isn’t it true that people get elected who have disagreements with other city officials?” He pointed out that City Attorney Dennis Herrera had nasty conflicts with Lee when they ran against each other for mayor last year, but that they’re working well together now.

Kopp also drilled into Lee about his decision to bring official misconduct charges before conducting an investigation or speaking with any witnesses besides Madison — an answer Lee blurted out just as city attorneys objected to the question. Much of Madison’s written testimony has been rejected by the commission as prejudicial hearsay evidence (see “Mayor vs. Mirkarimi,” July 27).

But the public’s perception of this case, if not it’s outcome, could turn on whether Lee is holding Mirkarimi to standards that he himself — as someone appointed mayor on a later-broken promise not to run for a full term — couldn’t meet. It was what Kopp seemed to be driving at before the bomb scare.

“You have asserted in your written charges that Sheriff Mirkarimi’s conduct fell below the standard of decency, good faith, and right action that is impliedly required of all public officials, correct?” Kopp asked.

“Yes,” Lee replied.

“We expect certain things of our elected officials, right?” Kopp asked.

After a long pause, in which Lee appeared to be thinking through his answer, he replied, “That’s generally true, yes.”

“And when the charter speaks of official misconduct, it doesn’t say we expect a certain standard for the sheriff, a different standard for the mayor, a different standard for the DA, a separate standard for the assessor, it just speaks in general terms about official misconduct for public officials, right?” Kopp asked.

Kaiser objected to the question on three counts, sustained on the grounds that it calls for a legal conclusion.

“Do you yourself believe there’s a separate standard for sheriff than for other elected officials?” Kopp asked, and this time the city’s objection was overruled and Lee replied, “It should be the same standard.”

“And would you agree with me that one of the things that is expected of elected officials is for them to be honest and forthright when dealing not only with their constituents, but with other elected officials?” Kopp asked, his final question before Chair Benedict Hur announced that the hearing would be suspended and the room would need to be cleared.

After the hearing reconvened, Kopp drew parallels to other city officials who remained on job after scandals, including former Mayor Gavin Newsom (who had an affair with a subordinate who was married to his campaign manager), former Sheriff Dick Hongisto (who was jailed for refusing to carry out a court’s eviction order), and current Fire Chief Joanne Hayes White (whose husband reported that she hit him in the head with a pint glass).

Asked about the latter case, Lee responded, “I don’t know all the circumstances around that and I don’t believe I was mayor at the time.”

 

Mayor vs. Mirkarimi

Andrew Lam
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58
Mayor vs. Mirkarimi

steve@sfbg.com

For all the lawyers, investigators, witnesses, politicians, and political appointees involved in Mayor Ed Lee’s official misconduct case against suspended Sheriff Ross Mirkarimi, this case is ultimately a battle between these two politicians, who come from rival ideological camps — and have a lot riding on the outcome of their clash.

And this week, both Mirkarimi and Lee are expected to take the witness stand and face tough questioning from each other’s attorneys.

These first two rounds of live testimony before the Ethics Commission — which has been painstakingly setting up procedures for its inquiry, defining its scope, and making myriad rulings on what evidence and witnesses to allow — could be the emotional high point of hearings likely to drag on throughout the summer.

On June 28, after the commission finishes ruling on the admissibility of evidence — dealing mostly with the controversial testimony of Lee’s star witness, Ivory Madison, the neighbor who triggered the police investigation that found Mirkarimi had grabbed his wife’s arm during a Dec. 31 argument — Mirkarimi is expected to take the stand.

Given the tacks taken by each side so far, the deputy city attorneys representing Lee will likely try to ask Mirkarimi a broad array of questions about his actions and their wider implications, while his attorneys will seek to limit the line of inquiry to what they see as the narrow question of whether he committed specific acts of official misconduct.

“They’re going to want to blast him with every single issue they can conjure up,” said Mirkarimi attorney Shepherd Kopp. But he thinks the Ethics Commission “will limit it consistent with how they’ve been ruling on our objections,” which has already greatly limited the case that Lee sought to present.

The next day, Lee is scheduled to take the stand, with Mirkarimi’s attorneys planning to question the mayor about why he didn’t conduct an investigation or seek more input from witnesses or former mayors before demanding Mirkarimi’s resignation and suspending him without pay in March.

“The suspension was not done carefully with the best interests of the city at heart. It was a rash political decision that had little to do with the facts,” Mirkarimi’s other attorney, David Waggoner, told us.

Indeed, the city didn’t begin gathering evidence until after the charges had been filed, and since then Lee and his team haven’t been able to unearth much evidence in support of his most damning allegations that Mirkarimi tried to dissuade witnesses and thwart the police investigation, something that Mirkarimi and his attorneys have adamantly denied. In the absence of that evidence, Waggoner said Lee has stepped up his efforts to defame Mirkarimi publicly.

Lee told reporters on June 19 that he suspended Mirkarimi because he was “beating his wife,” seeming to escalate the characterization of a single arm-grabbing incident. The city has also released the video that Madison made of Mirkarimi’s wife tearfully recounting the incident and the couple’s text messages, which made Mirkarimi look bad but don’t offer much new information or evidence.

“He’s panicking. The ship is going down and he’s beginning to flail,” Waggoner said of Lee’s recent statements and actions. “The more the mayor uses that kind of rhetoric, the less credibility he has.”

We sought responses and comments from the press secretaries for Lee and the City Attorney’s Office, but both refused to comment for the record.

Ethics Commission Chair Benedict Hur has taken an increasingly strong role in running the hearings and limiting the ability of either side’s attorney to control them. At the June 19 hearing, he cut off Deputy City Attorney Sherri Kaiser at least twice when she tried to offer unsolicited comments, at one point causing her to get visibly agitated and declare, “I’m objecting to the procedures for objecting to evidence.”

But Hur didn’t relent or modify his approach, telling her, “We are trying to conduct these proceedings in a fair and expeditious way.” Waggoner praised the way Hur has run the hearings so far: “I think he’s been fair in his rulings and how he’s conducted the process.”

After this week’s pair of hearings, the Ethics Commission is scheduled to reconvene its inquiry on July 18 and 19, when it will likely hear from Madison, whose testimony could make or break the case. But first, attorneys for each side are meeting this week to decide where they can agree to limit Madison’s testimony, with the commission making rulings on realms where the two sides differ. Deputy City Attorney Peter Keith has previously said he expects Madison to face tough questioning in which her credibility will be attacked, but the commission itself has already criticized her written declaration and greatly limited her hearsay accounts of life in the Mirkarimi household (see “Ethics Commission undercuts the main witness against Mirkarimi,” June 20, SFBG.com Politics blog). And Kopp told us, “If I get most of my objections sustained, I may not need to cross examine her, as fun as that might be.”

Ethics Commission undercuts the main witness against Mirkarimi

Sasha Cuttler
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213
Ethics Commission undercuts the main witness against Mirkarimi

The testimony of the star witness in Mayor Ed Lee’s official misconduct case against suspended Sheriff Ross Mirkarimi came in for harsh criticism by the Ethics Commission last night, with that body striking most of it as prejudicial and unsupported hearsay evidence that should have never been introduced, something that even the city’s attorneys admitted and apologized for.

It was a serious blow to the city’s case that also undercuts the written testimony of the city’s domestic violence expert, attorney Nancy Lemon, who based much of her analysis and judgments on this discredited and disallowed testimony of Ivory Madison, the neighbor and confidante of Mirkarimi’s wife who reported the Dec. 31 domestic violence incident to police.

Meanwhile, Lee was confronted by a large pack of reporters following his monthly appearance before the Board of Supervisors earlier the day, which peppered him with pointed questions about his decision to bring what is evolving into an expensive, complicated, and nasty prosecution of Mirkarimi rather than simply allowing him to be recalled by voters. The exchange made news when Lee characterized Mirkarimi’s arm-grabbing incident as “the beating of his wife.”

Mirkarimi and his attorneys labeled that comment and much of the city’s case as simply a smear campaign that goes well beyond the narrow question of whether Mirkarimi committed official misconduct and should be removed from office, which the commission is still in the process of setting up procedures to answer.

Yesterday’s hearing dealt mostly with deciding whether to exclude or allow the written testimony of nearly two dozen witnesses. The only testimony that was stricken entirely was that of Paul Henderson, Lee’s criminal justice adviser, who testified that Mirkarimi’s guilty plea to misdemeanor false imprisonment for the grabbing incident would hurt his ability to function as the sheriff. The commission found the testimony to be irrelevant and prejudicial, clearly upsetting Deputy City Attorney Sherri Kaiser.

But the big news from last week’s hearing was the dim view that the commission took of Madison’s 22-page declaration, which painted Mirkarimi as domineering and oppressive, a bleak picture that she attributed to his wife, Eliana Lopez, as conveyed during repeated conversations between October and December as the couple was having marital problems. Madison is the main source supporting the city’s most serious allegations: that Mirkarimi abused his wife and then tried to thwart a police investigation

Commissioner Paul Renne – a career litigator appointed to the commission by the District Attorney’s Office – took the lead role in criticizing Madison’s testimony and the city for allowing it, ruing the fact that it was used by the Examiner and other media outlets to paint a defamatory “portrait of verbal abuse and child neglect inside Mirkarimi’s fear-ridden household,” as the Examiner put it on the cover of yesterday’s paper.

“I saw that and I thought maybe this idea of [taking initial testimony through written] declarations is not protective of the interests of everyone,” Renne said.

“I was disappointed by the content of Ivory Madison’s declaration. A first-year lawyer should know that much of it is inadmissible and it should not have been given to us,” Renne told Deputy City Attorney Peter Keith, calling it “clearly hearsay, clearly having the intention of poisoning the well of this hearing.”

Keith didn’t even try to defend most of the declaration, responding to Renne by saying, “We have an independent witness that is represented by [her own legal] counsel and we didn’t have control over everything that was submitted…I think the criticism is well-taken and we didn’t mean to put matters before the commission that are not relevant.”

“But you were the one who submitted the declaration,” Renne responded, telling Keith that the city must avoiding engaging in character assassination that goes beyond the scope of the commission’s inquiry, which will result in a formal recommendation going to the Board of Supervisors near the end of summer.

“My recommendation is we reject the declaration and you bring her in for live testimony,” Renne recommended. The rest of the commission seemed to agree with Renne’s criticism, but it opted to go through the declaration line-by-line, removing most of it from the proceedings. Madison is also expected to testify live and be subjected to a tough cross-examination by Mirkarimi’s attorneys, who say she has blown the incident out-of-proportion and broke the confidence of Lopez, who denies that Mirkarimi was ever abusive.

In arguing unsuccessfully for much of Madison’s written testimony to remain in the record, Keith told the commission that it was the basis for Lemon’s assessment of patterns of behavior by batterers, thus undercutting that testimony as well.

“If they’re untrue, they’re meaningless, right?” Renne asked Keith, referring to the sensational tales Madison told about Mirkarimi’s controlling behavior.

But Keith said that even if the stories Lopez told Madison were untrue or highly embellished – as Lopez’s attorney, Paula Canny, has implied as she characterized her client as building a child custody case in the event the couple divorced – they are still relevant to understanding why Madison reported Mirkarimi to the police.

“Whether or not these actions happened, it’s relevant to her concerns,” Keith said.

But Mirkarimi attorney Shepherd Kopp said that, like much of the city’s case, hearsay testimony based on flawed and prejudicial information should be irrelevant to these proceedings and shouldn’t be allowed as evidence against Mirkarimi.

“Their expert, Ms. Lemon, can believe what she wants, but that doesn’t mean it should come in as evidence,” Kopp said.

The hearing was continued to next week when Mirkarimi, Lee, and other key witnesses are expected to begin giving live testimony before the commission on June 28 and 29. Click here to read the various documents associated with the case.

Fixing SF’s sunshine problems

Andrew Lam
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8

EDITORIAL Open-government advocates are circulating a series of amendments to the city’s landmark Sunshine Ordinance, and a lot of them make perfect sense. In general, the changes bring the law up to date — and deal with the ongoing and increasing frustration over the lack of enforcement that has rendered toothless one of the most progressive open-government laws in the nation.

The advocates are trying to find four supervisors to place the measure on the November ballot. It won’t be easy: Already, the City Attorney’s Office has circulated a memo arguing that some of the amendments conflict with state law or the City Charter.

And in the background, Sup. Scott Wiener is looking to take another approach to open-government, asking city departments to examine the costs of complying with the existing law — which could easily become an argument for loosening the rules.

The new disclosure rules are relatively modest. A policy body would have to release all documents relevant to a decision 48 hours in advance of a meeting. Documents that include metadata — tracked changes and other digital information — would have to be released in full. Regulations on closed meetings around pending legal issues would be tightened.

But the bulk of the changes have to do with enforcing the law — and that’s where the battle lines are going to be drawn. The measure would create a powerful supervisor of public records, appointed by the city attorney, who would be directed to review all denials of public records — and who, by law, would be ordered to “not consider as authority any position taken by the city attorney.” That seeks to address a key shortfall in existing law — the City Attorney’s Office, which (like most law firms) is often driven by privacy and confidentiality, advises city agencies on what records can be withheld, and city officials who refuse to release documents simply say they were following the advice of their attorney.

The proposal would turn the Sunshine Task Force into an independent commission, some of whose appointments wouldn’t be subject to any official review. The commission would have extensive new authority to levy fines on city employees who it finds in violation of the sunshine law and to force the Ethics Commission — which routinely ignores sunshine violations — to take action against offenders.

The idea, of course, is to mandate consequences for violating the Sunshine Ordinance, which is flouted on a regular basis by public officials who pay no penalty and thus have no real reason to comply. But increasing the scope and certainty of punishment is one side of the coin — and if there were better ways to ensure compliance, none of that would be necessary.

In Connecticut, a state Freedom of Information Commission has the statutory authority to require any government agency to release a document or open a meeting. The panel doesn’t punish people; it obviates that whole process. And it would be much, much easier to get beyond the penalties and simply create a legal process that allowed the Sunshine Commission full authority to order public agencies to comply with its rulings. The commission rules that a meeting was illegally closed? Tapes of that meeting must be released, at once. Documents improperly withheld? Cough them up, now. The only appeal city officials would have: go to court and seek a secrecy order. If the supervisors and other city officials think the proposed rules go too far, they can refuse to put this measure on the ballot, but that be ducking the clear and obvious problems. And there’s an easy solution: Give the Sunshine Commission the same power as the FOI panel in Connecticut, which has operated just fine for more than 30 years.

The Mirkarimi case: Did the city want to settle?

Zelda Bronstein
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132
The Mirkarimi case: Did the city want to settle?

The real news in the Ross Mirkarimi case isn’t the sheriff attempting to get the city to pay his legal fees; that’s just something he had to try but it was a long shot at best. The story that’s come out in bits and pieces since we broke it is far more interesting:

City Attorney Dennis Herrera, with or without the knowledge of his client the mayor, offered to begin discussions with Mirkarimi around settling the case — and the conflicting accounts of what went on show haw harsh this legal proceding has become.

Whatever you think about Mirkarimi’s actions on New Year’s Eve — and I’ve said many times that what he did was unacceptable — the intensity of the prosecution, particularly in the removal proceding, is unprecedented.

Some of the political fallout is clearly Mirkarimi’s fault. He bruised his wife, got bad advice early on, said the wrong things, and didn’t do enough to repair the damage. But now Mirkarimi’s lawyer is charging that the city attorney used a nasty legal gambit to try to convince the embattled sheriff to resign.

David Waggoner, in a TV interview with KGO’s Dan Noyes, and later in discussions with me, said that City Attorney Dennis Herrera offered to look for a way to keep the video of Mirkarimi’s wife out of the public eye — if Mirkarimi would take a financial settlement and resign from his elected position.

Mirkarimi told me the offer he heard from his lawyer put him in a terrible bind: Franky, the video contains nothing that hasn’t already been out, and won’t be the defining issue in the official misconduct case now before the Ethics Commission. But his wife, Eliana Lopez, was adamant that she didn’t want the 45-second clip on the Internet, where she — and more important, their three-year-old son — will have to live with it forever.

“They were using the needs of my family to pressure me,” Mirkarimi said.

Waggoner was pretty specific about his recollection of the settlement discussions. He said that after Herrera contacted him to say that he was willing to discuss settling the case, Waggoner made it clear that keeping the video sealed had to be part of any deal.

“We hung up, and then he called me back five minutes later to say that his government team was working on it, and he thought they could keep the video under seal,” Waggoner said. “The mayor and the city attorney were using the video as leverage.”

Hererra confirmed that he reached out to Waggoner to see if Mirkarimi’s legal team was interested in settlement discussions. But told me that Waggoner’s story was “absolutely, categorically untrue.” He insisted that he had no choice but to release the video, since several media outlets had requested it under the San Francisco Sunshine Ordinance.

In a statement issued June 8, Hererra attacked not only Mirkarimi but his attorneys:

“Everyone involved in this case was well aware of the City’s legal obligations under the Sunshine Ordinance (which Ross Mirkarimi himself had a hand in drafting).  The City invoked the maximum allowable two-week extension after receiving Sunshine requests for the video, to allow other parties to seek a protective order.  But opposing counsel dropped the ball.  They didn’t get a protective order.  They didn’t seek Supreme Court review.  They didn’t raise the issue at the Ethics Commission hearing.  And as far as I know, [Lopez’s counsel Paula] Canny didn’t even bother to show up at the hearing.  So, I think it’s a little absurd now to be playing martyr.  These are lawyers representing a former lawmaker.  They have no excuse for not knowing the law.”

Wow. Sounds like the usually level-headed Herrera is one pissed-off attorney.

Interestingly, Mayor Lee told Noyes that he didn’t know anything about any settlement discussions. Either that’s false (the mayor could have been instructed by Herrera not to say anything) or Herrera was going ahead without the mayor’s knowledge or permission.

So let’s set aside for the moment the back-and-forth about who’s telling the truth and what was really involved in the negotiations. Here’s what’s not in any serious dispute:

Herrera, representing the mayor, was sufficiently motivated to settle the case before it got to the Ethics Commission that he personally called Mirkarimi’s attorney to see if there was any possibility of finding a way out. Again: Attorneys in the most bitter lawsuits are advised to seek settlement. But this isn’t in court, and no judge mandated a settlement conference.

Which suggests that the city attorney and possibly the mayor would be a lot happier if this case just went away. Maybe Lee doesn’t like the drama. Maybe Herrera thinks it would be best for Mirkarimi and the city to put this in the past and move on.

Or maybe they aren’t sure this case is such a slam-dunk winner.

There’s another interesting twist, too: Mirkarimi told me that he asked the Probation Department for permission to fly to Venezuala to see his son. There were no conditions on his guilty plea barring him from travelling outside of the country (what — they think he won’t come back? That he has run through all of his money and put himself heavily in debt to fight a case that he’s now going to run away from?) But when he made a formal request, it was denied.
That’s right — probation officials refused to let him go visit his son. Forget Mirkarimi — that’s not fair to the three-year-old kid who did nothing wrong at all and is suffering for it.

The circus begins

Andrew Lam
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199
The circus begins

steve@sfbg.com

Mayor Ed Lee and his attorneys are presenting a voluminous yet largely speculative case against suspended Sheriff Ross Mirkarimi in their effort to remove him for official misconduct, broadening the case far beyond their most damning core accusation -– that Mirkarimi dissuaded witnesses from telling police that he bruised his wife’s arm during an argument on Dec. 31. And so far, there’s no evidence to support that key allegation.

In fact, Mirkarimi and his attorneys insist there was no effort to dissuade witnesses, one of many unsupported aspects to a case they say should never have been filed without stronger evidence. And they say the mayor’s team is now compensating for the weakness of its case by piling on irrelevant accusations and witnesses in an effort that amounts to character assassination.

There are even signs that the city is nervous about its case. Knowledgeable sources told the Guardian that the City Attorney’s Office last week offered to settle the case with Mirkarimi, offering a substantial financial settlement if he would agree to resign, an offer that Mirkarimi rejected.

It was one of a series of rapidly unfolding developments that also included a raucous Ethics Commission hearing, the disclosure of phone records by Mirkarimi’s side, a new list of charges, and the city’s release of the video Mirkarimi’s wife, Eliana Lopez, made with neighbor Ivory Madison, documenting the bruise in case of a child custody battle over their son.

Lopez has maintained that Mirkarimi never abused her and that she’s been hurt most by the efforts to prosecute him and remove him from office.

“I hope they realize after reflection that what they have done is irreparable and perpetually damaging to me and my family,” Lopez said in a statement condemning the city’s release of a video that she fears will remain online for her children and grandchildren to see.

Yet all indications are this spectacle is only going to grow more sordid, divisive, and sensational as it moves forward — belying the statement Lee made last week as he introduced his annual budget: “As many of you know, I’m a person who does not like a whole lot of drama.”

SIMPLE OR COMPLEX?

The May 29 Ethics Commission hearing to begin setting standards and procedures for the official misconduct proceedings against Mirkarimi illustrated two sharply divergent views on when elected officials should be removed from office. It also displayed the increasingly bitter acrimony and resentments on each side, emotions only likely to grow more pronounced as the hearings drag on for months against the backdrop of election season.

Both sides would like to see the decision as a simple one. Lee and his team of attorneys and investigators say Mirkarimi’s bruising of his wife’s arm and his unwillingness to cooperate with their investigation of what followed make him unfit for office. Mirkarimi and his lawyers admit his crime, but they say that’s unrelated to his official duties and that the rest of Lee’s charges against him are speculative and untrue.

Yet there’s nothing simple about this official misconduct case — or with the implications of how each side is trying to counter the others’ central claims. So despite the stated desires of some Ethics commissioners to narrow the scope of their inquiry and limit the number of witnesses, San Franciscans appear to be in for a long, dramatic, and divisive spectacle, with Mirkarimi’s fate decided by the Board of Supervisors just a month or so before the five supervisors who have been his closest ideological allies face reelection. Nine of 11 votes are required to remove an official.

The Mayor’s Office wants to call the most witnesses and present an elaborate (and expensive) case that includes a number of outside experts on law enforcement and domestic violence, painting a portrait of Mirkarimi as a serious wife-batterer whose past and future actions can be divined from that malevolent distinction, making him obviously unable to continue as San Francisco’s chief law enforcement officer.

“The extent of the abuse was far greater than what Mr. Mirkarimi has testified to,” claimed Deputy City Attorney Peter Keith, going on to say “there were attempts to control what she ate,” an apparent reference to Mirkarimi’s decision not to take Lopez to a restaurant for lunch on Dec. 31 because they were having a heated argument. He also repeatedly referred to Mirkarimi as a batterer and said “batterers behave in a certain way.”

Mirkarimi attorney Shepard Kopp calls that portrayal exaggerated and unfair, ridiculing the Mayor’s Office claims that its domestic violence expert, attorney Nancy Lemon, can predict Mirkarimi’s behavior based on grabbing his wife’s arm once: “Apparently she’s some kind of clairvoyant in addition to being an expert,” Kopp told the commission as he unsuccessfully sought Lemon’s removal from the witness list.

Ethics Commission Chair Benedict Hur took the lead role in trying to limit the witness list, focusing on stripping it of the various law enforcement experts who plan to describe how different agencies might react to dealing with Mirkarimi. “What I don’t understand is how his ability to do his job relates to whether he committed official misconduct,” Hur said.

Mirkarimi’s team says its case could be very simple, with only Lee and Mirkarimi called as live witnesses — but the attorneys reserved the right to offer testimony to counter false or damaging claims made by the Mayor’s Office.

Hur tried to limit the case to just witnesses and arguments that relate to Mirkarimi’s actions, but he was outvoted by those who wanted to let the city argue how those actions would affect perceptions of Mirkarimi by the many people that a sheriff must interact with.

In the end, the commissioners agreed to trim the eight expert witnesses sought by the mayor down to three and to cut its 17 proposed fact witnesses down to 12, calling 15 total witnesses. Mirkarimi’s team will call 10 witnesses, down from an initial 17. All witnesses will submit written declarations and then be subjected to live cross-examination if any of their testimony is disputed.

EVIDENCE AND SPECULATION

The speculative and prejudicial nature of some of the city’s case was attacked at the hearing by Mirkarimi’s attorneys and the large crowd that came to support him.

Commissioner Paul Renne asked the Mayor’s Office attorneys why they hadn’t summarized the expected testimony of their expert witnesses and “How are any of those opinions relevant to the issues in this case?”

“I have not had time to work with the witnesses to see what their opinions are,” replied Deputy City Attorney Sherry Kaiser, prompting Kopp to incredulously note, “The mayor is preparing the expert witnesses without knowing what their testimony will be. How can I respond to that?”

The issues of bias and conflicts of interest also came up surrounding what sources should be called as witnesses. Mirkarimi’s team wanted longtime Sheriff Michael Hennessey, Mirkarimi’s predecessor, while the Mayor’s Office pushed for Acting Sheriff Vicki Hennessy to convey how the Sheriff’s Department should function.

“Vicki Hennessy was a political appoint of Mayor Lee,” Waggoner objected, although the commission decided to use that appointee.

On several critical procedural questions, the commission sided with the Mayor’s Office, ruling that the commission decision needn’t be unanimous, that guilt could be established based on a preponderance of the evidence rather than beyond a reasonable doubt, and that normal rules of evidence won’t apply, with some hearsay evidence allowed on a case-by-case basis.

The pro-mayor decisions angered the roughly 200 Mirkarimi supporters who packed the commission hearing and an overflow room, many bearing blue “We stand with Ross” stickers and flyers, which had “Respect Eliana” on the flip side. There were only a couple of Mirkarimi critics at the hearing wearing white “I support Casa de las Madres” stickers, referring to the domestic violence group that has been calling for Mirkarimi’s removal since shortly after the incident went public.

Mirkarimi got a rousing welcome from the crowd when he arrived at the hearing, his voice choking up and eyes welling with tears as he said, “I cannot tell you, on behalf of me and my family, how grateful we are.”

The crowd was boisterous during the proceedings, loudly reacting to some claims by the deputy city attorneys and offering comments such as “Ed Lee is the one you should put on trial,” with Hur finally recessing the hearing after an hour and having deputies warn audience members that they would be removed for speaking out.

Renne, a career litigator and the District Attorney’s Office appointee to the commission, raised the most doubts about both the standard of guilt and rules of evidence being lower than in criminal proceedings, telling his colleagues, “I have some reservations.”

PHONE LOGS

Mirkarimi’s team also released to the Chronicle and the Guardian redacted phone records from Mirkarimi, Lopez, and Linnette Peralta Haynes — a family friend and social worker who served as Mirkarimi’s last campaign manager. The city has sought to portray Haynes, who has not been cooperating with the investigation, as a conduit to Mirkarimi’s efforts to dissuade Lopez and Madison from going to the police on Jan. 4.

Mirkarimi previously told the Guardian that he was unaware that Lopez had told Madison about the abuse incident or that they had made a video of her injury until several hours after Madison had called the police and they had come to the house to talk to Lopez, during which time Mirkarimi was in a series of meetings at City Hall.

The phone records seem to support that claim. They show that Lopez and Haynes — who is close to Lopez and recently went to Venezuela to visit her — exchanged a series of telephone calls on Jan. 4 starting at 11am. Their longest conversation, nearly 40 minutes, occurred at 11:18am.

Neither woman could be reached to describe the substance of that call. At 12:24pm, Lopez sent Madison — with whom she had been communicating by phone and text over the previous couple days — a text message indicating that she didn’t want Madison to report the incident to police, but that she would instead go to her doctor to document the injury.

A minute later, Madison called the police to report that Lopez had been abused by Mirkarimi.

Starting an hour later, the records show, Haynes and Lopez called each other but didn’t connect until 3:31, when they had a nearly 14-minute phone conversation, presumably discussing the fact that police had visited the house, with Lopez reportedly giving the phone to Madison at one point so Haynes could talk to her.

Yet the phone records indicate that neither Lopez nor Haynes tried to reach Mirkarimi until after that conversation, despite the city’s claims that Mirkarimi “or his agents” used his power to dissuade witnesses, most notably Lopez and Madison. The first attempt to reach Mirkarimi was at 3:46pm when Haynes called him twice but didn’t connect. Lopez then sent Mirkarimi a text message at 3:53pm asking “Where are you and where is the car,” but she got not reply. She texted him again at 4:18pm to say “Call me. It’s an emergency.”

Lopez made one last appeal to Madison in a 4:18pm phone conservation that lasted four minutes and 27 seconds and then she finally reached Mirkarimi by phone at 4:23pm. Mirkarimi and attorney David Waggoner say this is the first time that he became aware that Lopez had talked to neighbors and that the police had been called. Their conversation lasted a little more than five minutes.

Mirkarimi called Haynes at 5:12pm and they spoke for seven minutes. At 5:51pm, an increasingly panicked Lopez sent a text to Mirkarimi saying, “You have to call [Sheriff Michael] Hennessey and stop this before something happen. Ivory is giving the investigators everything. Use your power.” To which Mirkarimi responded 10 minutes later, “I cannot. And neither can he. You have to reject Madison’s actions. We both do. I cannot involve new people.”

NEW CHARGES

On June 1, the city released an amended list of charges against Mirkarimi that was intended to be a more specific list of accusations, as Waggoner requested during the May 29 Ethics Commission hearing. In it, the city asserts that the charter language essentially gives the city two avenues by which to remove officials, defining distinct “wrongful behavior” and “required conduct” clauses. Violation of either, they contend, is enough to remove an official.

“Official misconduct means any wrongful behavior by a public officer in relation to the duties of his or her office, willful in its character, including any failure, refusal or neglect of an officer to perform any duty enjoined on him or her by law…,” begins the charter language. This “wrongful behavior” section has long been in the charter, referring to specific actions by public officials to neglect their duties.

The second “required conduct” clause of this sentence — which was created in 1996, never vetted by the courts, and which Mirkarimi’s attorneys say is unconstitutionally vague — continues, “…or conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers and including any violation of a specific conflict of interest or governmental ethics law.”

In trying to indict Mirkarimi for actions before he was sworn in as sheriff, the city attempts to argue that his official duties really began with his election, claiming that in this interim period he “had the duty and the power in his official capacity as Sheriff-Elect to work with the Sheriff’s Department and its officials to prepare himself to assume the full duties of Sheriff.” And if that’s not enough, the city argues that he was chair of the Board of Supervisors Public Safety Committee during that same Nov. 8-Jan. 8 time period, further subjecting his actions to official misconduct scrutiny.

The “wrongful actions” charges against Mirkarimi were listed in the document as domestic violence, abuse of office, impeding a police investigation, and “crime, conviction, and sentence,” while the “breach of required conduct” charges were listed simply as his sheriff and supervisorial roles.

The document then attempts to paint an expansive portrait of the Sheriff’s official duties, going beyond the narrow construction of the charter to include the general law enforcement duties listed in state law, interactions with various government and nonprofit groups, administrative responsibilities as a city department head, and passing mentions in the California Family Code that police officers “must enforce emergency protective orders in domestic violence cases.”

Yet the promise that the rest of the document would detail Mirkarimi’s wrongful actions with greater specificity than the previous list of official charges doesn’t seem to be met by this document, which repeats the same narrative of actions that Waggoner had criticized for vagueness.

For example, on the pivotal charge that he dissuaded witnesses and impeded the police investigation, the new charges say that during the period from Dec. 31-Jan. 4, “Sheriff Mirkarimi participated in and condoned efforts to dissuade witnesses from reporting this incident to police and/or cooperating with police investigators,” without describing any specific witnesses or actions that he took.

And by the mayor’s team’s own admissions, the prosecutors don’t know what Mirkarimi did to dissuade witnesses, which they hope to learn through future testimony.

The closest the new document comes to directly tying Mirkarimi’s actions to the official misconduct language is with Mirkarimi’s plea to a misdemeanor false imprisonment charge: “False imprisonment of a spouse is a crime of domestic violence. The California Penal Code considers spousal abuse to be a ‘crime against public decency and good morals.'”

Mirkarimi disagrees with that interpretation, noting that he and his attorneys specifically considered whether pleading to false imprisonment -– a general charge with many possible meanings -– would violate the city’s official misconduct provisions, and he told the Guardian that he was assured by his attorneys it didn’t. Mirkarimi told us he would not have entered the plea and would have instead fought the charges in court if he thought it would disqualify him from serving as sheriff.

Waggoner told us that “The Mayor’s Amended Charges are further evidence that this entire ordeal is a political hatchet job reminiscent of a Soviet show trial. Far from being a careful analysis of any actual evidence, the new charges are vague, redundant, and conflate the offices of Sheriff and Supervisor.”

But ultimately, the case against Mirkarimi is a political one, not a legal case subjected to the normal standards of evidence and procedure. And whether Mirkarimi keeps his job will be a decision made by politicians based on a variety of factors, some of which have little relation to whatever happened on Dec. 31 and Jan. 4.

What’s next: the Ethics Commission will meet on June 19 to rule on more of the outstanding issues in the case and begin hearing testimony. To review the long list of documents from the case, visit www.sfethics.org.

Don’t water down campaign laws

Andrew Lam
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EDITORIAL The San Francisco Ethics Commission, which is hardly aggressive about cracking down on campaign-finance violations, has suggested some rule changes that would water down the city’s ethics laws. The supervisors should reject most of the suggestions — and start talking about real reform.

The commission has asked Sup. Scott Wiener to bring the changes to the board, and Wiener told us that he has problems with some of them and is going to be working with his colleagues, particularly Sup. David Campos, to fix the package.

It will need a lot of amendments to be acceptable.

The current proposal would make life easier for campaigns and big donors, but would make it harder for the public to figure out who’s putting up the money and where it’s going. For example, it would exempt from the spending cap all money spent complying with the ethics laws. That sounds fair at first glance — but the amounts involved are huge. For a mayoral race, as much as $147,000 would be exempted. That’s a lot of money for “compliance.”

More important, the ethics proposal would eliminate the restrictions on how much a single donor can give in an election season. Right now, the cumulative limit is $500 for each office on the ballot, which limits the impact that a handful of big-money contributors can have on an election. Under the new rule, a wealthy person who wants to make sure that every politician in town owes him or her can donate the maximum to a long list of candidates, giving more power to a few.

Wiener says that under ranked-choice voting, donors should be able to give to more than one candidate for a single office. Fine — but the cap doesn’t have to be eliminated. It could easily be amended to account for RCV.

The plan would somewhat loosen the reporting requirements in the last days of a campaign, eliminating weekend disclosures. It would decrease the transparency rules for campaign committees that shuffle money back and forth to hide its true source. It would aalow more spending by independent committees with less disclosure.

In other words, it would undermine the ability of the voters to know who is funding which candidates and initiative campaigns. There’s no reason to do any of that.

The problem with the current law is not that it requires too much disclosure — it’s that, in many ways, the controls on political money are too weak. And if the supervisors are serious about reform, there’s plenty to be done.

Ethics laws currently bar anyone who is seeking a city contract from donating to local officials. But it’s still perfectly legal for someone seeking a permit or zoning change to throw around cash. And there are endless problems with developers who need city officials on their side. Extending the contribution ban to anyone seeking special zoning or permit approval for any project with construction costs above a certain threshold — say, $10 million — would exclude, say, homeowners who want to build a new deck, but would limit the role of real-estate money in campaigns.

The amendments need eight votes to pass; before it even gets to the full board, the Rules Committee ought to ship this mess back to the Ethics Commission and tell the supposed watchdogs to try again.

Vote yes on Prop A for competitive bidding for garbage and against Recology monopoly

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As a reporter for the old Redwood City Tribune in 1965 or so, I got a call one day from the late  Luman Drake, then an indefatigable environmental activist in Brisbane.  “Bruce,” he said, “you are good at exposing scandals on the Peninsula, but you have missed the biggest scandal of them all. Garbage, garbage in the Bay off Brisbane, garbage alongside the Bay Shore going into San Francisco.”

He then outlined for me, his voice rising in anger, how the scavengers of an early era had muscled through a longtime contract to dump San Francisco’s garbage into the bay alongside the Bay Shore freeway.  And, he said, they are still doing it. Why can’t you fight it? I asked naively.

“Fight it, fight it,” he replied. “The scavengers are the most powerful political force in San Francisco and there’s not a goddamn thing we can do about it.” I checked out his story, then and through the years, and he was right.  Everyone driving in and out of San Francisco could watch with horror  for years as the scavengers kept dumping San Francisco garbage into a big chunk of the bay.  (Note the oral history from Drake and then Mayor Paul Goercke and others who fought the losing fight for years to kick out the scavengers from Brisbane.) http://legendarymarketingenius.com/oralhistorySBMW.html)

Five decades later, the scavengers are still a preeminent political power in San Francisco. The scavengers (now Recology) have operated since 1932 without competitive bidding, without regulation of its high residential and commercial rates, without a franchise fee, and without any real oversight. Finally, after all these years as king of the hill, Recology’s monopoly is being challenged by Proposition A, an initiative aimed at forcing Recology for the first time to undergo competitive bidding and thereby save city residents and businesses millions of dollars  in rates and service.

Let me say up front that I salute former State Senator and retired Judge Quentin Kopp and Tony Kelly, president of the Potrero Hill Boosters and the Guardian’s candidate for District l0 election (Potrero Hill/BayView/Hunters Point). They have taken this measure on when nobody else would, without much money or resources, and up against  a $l.5 million campaign by Recology and enormous, nasty political pressure.  I also salute those who publicly signed on to their brochure: Coalition for San Francisco Neighborhoods, San Francisco Tomorrow, SF Human Services Network, David Bisho,Walter Farrell, George Wooding, Irene Creps, Alexa Vuksich, the San Francisco Examiner, SF Appeal.com, and the Guardian. 

I was delighted to get a Yes on A brochure at my house in West Portal and find that Kopp and Kelly et al had money enough to make a strong statement in a strong  campaign mailer.  Kopp and Kelly persuasively summarized the key points for A and against more galloping  Recology monopoly in the brochure.  Meanwhile, the  Recology forces have been  using  gobs of money, a massive mail campaign, robot calls, and deploying the kind of political muscle their predecessors used to keep dumping garbage in the bay off Brisbane for decades. Since the Yes on A camp has trouble cutting through the cannonading and the flak, let me lay out the A  arguments verbatim from its brochure.

Question in the brochure:  “Why is Recology spending millions to buy this election? Recology has contributed $l,580,292.70 against Prop A. (Form 460 SF Ethics Commission.” Answer in the brochure;  “So they can raise your garbage rates after the election! ‘San Francisco Prepares For Recology to Raise Garbage Rates’ (Contract is Proof Recology Plans to Hike Garbage Rates Following Election’”) Then they laid out l0 reasons to vote Yes on A.

1. “71 Bay Area cities have competitive bidding or franchise agreements for garbage services. Because San Francisco doesn’t, residential trash collection rates have increased 136% in the last 11 years, with another massive increase coming after the election! We pay more than twice as much for garbage and recycling as San Jose, a city with twice the land and about 400,000 more people.

2. “The garbage collection/recycling monopoly now grosses about $220 million per year from the city’s residents and businesses, without any regulation of commercial rates.

3. “How did we end up paying so much? In 2001 the monopoly requested a 52% rate increase, Department of Public Works staff recommended 20% and the then DPW director (now Mayor) Ed Lee granted a 44 %rate increase. That’s why the Examiner said: ‘no-bid contracts generally make for dirty public policy, and this includes…The City’s garbage collection monopoly…’

4. “Don’t believe the monopoly’s 78% recycling rate claim backed only by its puppet city department. A former Recology recycling manager has testified under oath that fraudulent reporting, excessive state reimbursements and even kickbacks to and from Recology employees are behind this bogus claim.  Another ‘whistleblower’ has revealed that even sand removal from the Great Highway was included in this 78%.

5. “With a far smaller population, Oakland receives $24 million each year as a franchise fee, which supports city services and prevents other tax and fee increases.  San Francisco receives zilch from the monopoly holder in franchise fees for our General Fund.

6. “Proposition A is on the ballot through citizen/ratepayer time and effort, in the face of intimidation and harassment by the monopoly’s agents and its multi-million dollar campaign against it.

7. “Proposition A is simple: it authorizes the Director of Public Works and the Board of Supervisors’ Budget Analyst to prepare competitive bidding regulations for residential and commercial collection, recycling, and disposal, by modifying an outdated 1932 ordinance.

8. “Like all other competitive-bid city contracts, the winning garbage service bid will be ratified by the Board of Supervisors without any political tinkering.  The winning bid will contain the best deal for city ratepayers.

9. “If the monopoly is truly the corporation portrayed in its expensive campaign to defeat Prop A, it would easily win every bid.  As the Examiner stated last year, ‘…contracts won by competitive bidding are always better for the public in the long run.’

10. And then the list of endorsers ‘and tens of thousands of other ratepayers.’”

Kopp and Kelly et al are providing a major public service by challenging an arrogant monopoly of an essential public service and keeping alive the concept of competitive bidding on city contracts in San Francisco.   I drink to them from a pitcher of Potrero Hill martinis. Vote early and often for Prop A.  B3

Editorial: The Mirkarimi case is an abomination

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Editor’s note: And so the man who became interim  mayor on a false pretext and then lied his way through an election for a full term amid a sleazy mass of campaign irregularities and violations, has suspended Sheriff Ross Mirkarimi without pay and is now using the full power of the city attorney’s office to continue the Mirkarimi crucifixion. Without pay? The usual City Hall/cop practice is to suspend or put a city official on administrative leave with pay. Even Willie Brown, former mayor, Chronicle columnist and PG@ES lobbyist, says Mirkarimi should not have been suspended without pay. B3

EDITORIAL There’s only one way to say this: The official misconduct case against Sheriff Ross Mirkarimi has become a one-sided star-chamber proceeding that violates all the basic rules of fairness, decency, and due process.

Over the past few weeks, Mayor Ed Lee, acting through the City Attorney’s Office, has been collecting evidence and issuing subpoenas to force witnesses (including some who have only a peripheral involvement in the matter) to give testimony. The mayor is acting as if he’s prosecuting a murder case instead of conducting a hearing on whether an elected official should be thrown out of office for a misdemeanor.

And Mirkarimi and his lawyers have absolutely no ability to respond.

That’s right: The mayor and the city attorney have subpoena power. The defense in this case doesn’t.

If this were a criminal proceeding, in a real court, Mirkarimi would have the same ability to compel testimony as the mayor. And under the rules of discovery, he’d have the right to see all of the evidence compiled against him.

But because this in front of an Ethics Commission that hasn’t even adopted evidentiary rules, one side has all the rights, and the other side has none. That puts Mirkarimi at a terribly unfair disadvantage. You can argue all day about Mirkarimi’s conduct, but people charged with the worst horrific crimes have more legal protections than he does.

The Ethics Commission needs to immediately adopt rules that level the playing field — and the city attorney should insist on it. If there are going to be witnesses — and clearly the mayor is planning to present them — then Mirkarimi’s lawyers must be allowed to review those statements in advance, as they would in any trial. All evidence against the sheriff should be turned over to the defense, well in advance of the hearing. Until that happens, the mayor and the city attorney should put the inquiry on hold.

Because right now, the process is an abomination.

GUEST OPINION: The politics of retribution

Zelda Bronstein
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GUEST OPINION: The politics of retribution

By Debra Walker and Krissy Keefer

We have been shocked and saddened by the perpetual attack on Ross Mikarimi and his family.

To Ross’s credit, he took responsibility in the criminal case he faced, and accepted a plea bargain to a non-domestic-violence misdemeanor that the district attorney concluded served the interests of justice.

He and his wife, Eliana Lopez, had resolved their dispute before the betrayed disclosure to the police and the media by the trained but unlicensed attorney that began the criminal case. The plea bargain was vetted and all legal ethicists consulted concluded that the plea bargain could not be the basis of any action against Ross for the now infamous term “official misconduct.” Ross was ordered into counseling.

Since the criminal case ended we have watched the mayor, domestic-violence advocates, and the majority of the print media, collectively pass judgment without connection to reality, with devastating consequences to Ross Mirkarimi, his family and the people of San Francisco.

Mayor Ed Lee suspended Ross without a hearing and without pay. In other words, the mayor acted against Ross without due process. City Attorney Dennis Herrera has merely repeated all of the unsubstantiated allegations from a newspaper opinion piece in the form of a pleading — and actually submitted this as fact, further embarrassing our city.

Barring further intervention by the courts, the Board of Supervisors and the Ethics Commission will now be forced to publicly weigh in on the concluded criminal case that occurred before Ross was in office.

Was the punishment laid out by the courts not enough? Are we going to all sit back and watch as San Francisco engages in a public political assassination of a progressive elected official? At what point does it stop? 

Clearly it hasn’t stopped with Ross. Now the mayor and the city attorney have begun the attack on his campaign manager and well-known City Hall aide Linette Peralta-Hayes. Who is next? It could be any of us, of you.

As close friends of Ross and Eliana, we can attest to the fact that this family has paid dearly for their now very public fight and we all should hope for a healing. It does not bring justice to any women’s issues to have such a public display of retribution and revenge. Blowing this out of proportion like this has been only sets the stage for the continued backlash against women’s real issues.

If there were not a complete attack on women’s rights at this time in our country, this might be easier to stomach. Not one thing about this has advanced the rights of women or the understanding of domestic violence. Instead, the criminal justice system has been manipulated to further a political agenda of removing an elected official from office.

We all make mistakes in life. There have been several recent occasions involving officials actually in office where their behavior was questioned.  One issues involved sexual contact with a subordinate, another involved domestic violence and others involved substance abuse. In not one of these instances has the person been removed office.

To remove Ross from office is political and nothing else.

People are purportedly so outraged on behalf of abused women everywhere. But where is the outrage about the coordinated attack on choice in our country or about the documented inhumanities perpetrated against women throughout the world, even today?  Or equal pay, or adequate healthcare? What about the families losing their homes to greedy banks? Nothing of substance gets done on these issues. Instead, attention is focused away from the important issues to the personal shortcomings of the politicians seeking to address those issues.

From the impeachment efforts against Clinton to the allegations against the Wikileaks activist, there are over-amped attacks aimed to politically destroy the target in the press.  “Due process” and “innocent until proven guilty” are essentially thrown out the pressroom window. 
In the name of domestic violence, the mayor and the city attorney have removed an elected official from office. Domestic violence advocates are being used to further an agenda that is hypocritical and ultimately will undermine and dis-empower us all.

Ross Mikirimi was the only progressive elected in the last election. Ross has always been an ideological feminist. The established power brokers in City Hall did not want Ross to be sheriff. They do not want someone who advocates for diversity. They do not want someone who supports the rights of the people to implement the Compassionate Use Act and maintain cannabis dispensaries. They do not want a sheriff who will stand up to the federal government.  They do not want a sheriff who will stand with the 99 percent.

San Francisco is a great city not because of intolerance but because of tolerance. The strength of the city came about because of respect for diversity and encouragement of diversity. Ross stands for those principles.

Ross made a mistake in his personal relationship. Eliana Lopez, his wife, has clearly forgiven him. Each of us should do the same. To do otherwise is to disrespect Lopez.

Are we going to trust City Hall to be the arbitrators of conduct?  And are we really going to sit by and watch as they systematically throw untrue, unfounded, unsubstantiated accusations at whomever they want? Really?

To use this incident as the basis for this coup is without precedent. City Hall’s actions are without basis in fact and without foundation in law.

We believe that the mayor, among others, is doing what he wants to under the guise of women’s rights. We do not want to be used in that way.

There is something very wrong with what is happening — and sadly if this public political assassination can happen to Ross and his family, it can and will happen to anyone of us. Ask Linette Peralta Hayes.
 
Krissy Keefer is artist director, Dance Mission Theater. Debra Walker, an artist, is political development chair of the California Democratic Party Women’s Caucus.

City case speculates about Mirkarimi’s interference with investigation

Sasha Cuttler
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City case speculates about Mirkarimi’s interference with investigation

The City Attorney’s Office laid out much of its case against suspended Sheriff Ross Mirkarimi yesterday when it released a list of witnesses and their expected testimony, as requested by the Ethics Commission, and it offers little support for the city’s accusation that Mirkarimi dissuaded witnesses or sought to destroy evidence of a crime, which are among the most serious allegations in the official misconduct case against him.

The longest and most significant section in the brief was the testimony of Ivory Madison, the neighbor who initiated the police investigation into whether Mirkarimi physically abused his wife, Eliana Lopez, during a Dec. 31 incident that she subsequent reported to Madison, who made a video of her story and a bruise on her arm.

It was the most detailed account yet of what happened from the perspective of Madison, who has refused media interviews, and it differs in some key areas from accounts that Mirkarimi gave to the Guardian and other media outlets.

For example, Mirkarimi said he grabbed his wife’s arm in the car during a heated argument and that tempers had cooled by the time they went inside. But Madison is expected to testify that, “Inside the house, Sheriff Mirkarimi pushed, pulled and grabbed Ms. Lopez, who was crying and screaming, as was their son. Ms. Lopez asked Sheriff Mirkarimi to stop, and said look what you’re doing to our son. Ms. Lopez then ran out of the house. While both inside and outside the house, Lopez was yelling, do you want me to call the police. When Ms. Lopez yelled about calling the police while outside, Sheriff Mirkarimi said no, come inside. Ms Lopez went back inside.”

It is unclear from the memo whether Madison was a direct witness to those events or whether they were relayed to her by Lopez, but it sounds like the latter given that the story is in a paragraph that began with the phrase “According to Ms. Lopez.” Since the incident, Lopez has consistently denied that Mirkarimi abused her and downplayed the conflict. The only other neighbor on the witness list, Callie Williams, wasn’t at home during the conflict, but she’s expected to testify that Lopez told her about that and an earlier instance of abuse and that “Sheriff Mirkarimi was scared that she was going to tell people what happened.”

While Madison’s expected testimony confirms Lopez’s account that the video was made to be used in the event of a child custody battle if the couple divorced, Madison’s account paints Lopez as actively worried about her safety: “Ms. Madison suggested calling the police. Ms. Lopez was afraid that the police would not believe her and would not protect her from Sheriff Mirkarimi, and was concerned about what the police could do to protect her.”

It also confirms what journalist Phil Bronstein, a friend Madison called for advice, told the Guardian about Madison’s initial call to police being a simple inquiry and that she didn’t intend to initiate a police investigation just yet. And it indicates that “Ms. Lopez was unhappy about the investigation. Ms. Lopez called Linnette Peralta Haynes (Sheriff Mirkarimi’s campaign manager in the November 2011 election) on her mobile phone. After speaking with Ms. Haynes, Ms. Lopez handed her phone to Ms. Madison. Ms. Haynes attempted to dissuade Ms. Madison from cooperating with the police and attempted to persuade Ms. Madison to lie to the police.”

Yet there is nothing in Madison’s expected testimony to indicate Mirkarimi was behind any of these efforts, and he denies it and says that he wasn’t even aware that Lopez had talked to Madison or made a video or that police had been called at that point. Peralta Haynes, who sources say is in the late stage of a difficult pregnancy, hasn’t cooperated with the investigation so it’s obviously speculative on the city’s part to indicate that she was acting as Mirkarimi’s “agent” in thwarting the investigation, as the city is claiming.

The only “evidence” that the city seems to offer in support of its accusation that Mirkarimi tried to thwart the criminal investigation comes from Madison’s husband, Abraham Mertens, who is expected to repeat the claim he first made in a controversial March 20 op-ed in the San Francisco Chronicle that, “During the time that SFPD inspectors were interviewing Ms. Madison on January 4, Mr. Mertens received a telephone call from Eliana Lopez urging him to make Ms. Madison stop talking to the police. Mr. Mertens heard Sheriff Mirkarimi’s voice in the background,” a more resolute version than Mertens had previously given when he wrote in the op-ed: “I recognized what I thought was Ross’ voice in the background.” Mertens also has not answered Guardian calls.

Mirkarimi categorically denies that he was present during that phone call and says that he was in meetings at City Hall and that he wasn’t aware that any of this was happening at the time. And he has denied urging Peralta Hayes to get involved, but her testimony could evolve into evidence if the city can show they talked before she spoke to Madison, but that’s still speculative. The city is seeking live testimony from Peralta Haynes about her communications with Mirkarimi on Jan. 4 and before.

During the recent Ethics Commission hearing on setting up procedures for the hearing, Mirkarimi attorney Shepherd Kopp noted that the city hadn’t done key interviews or collected physical evidence (such as phone records or the Lopez video) to support its charges against Mirkarimi before making its allegation, something that Deputy City Attorney Peter Keith didn’t dispute, noting that the the city had not yet received much of the evidence that it intends to present, such as the video.

The city appears to be banking on compelling incriminating testimony from Lopez and Mirkarimi, who they plan to treat as hostile witnesses. The other interesting name on the city’s witness list was Mayor Ed Lee, who the city is recommending give live testimony and who could also likely be subjected to a vigorous cross-examination that could have interesting political ramifications.

Ethics Commission opens the long and complex case against Mirkarimi

Sasha Cuttler
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Tonight’s first Ethics Commission hearing on the procedures and standards that will govern the official misconduct proceedings against suspended Sheriff Ross Mirkarimi showed just how complex, contentious, and drawn out this unprecedented process will be.

The commission made no decisions other than setting a schedule for both sides to submit a series of legal briefs and responses over the next five weeks, on which the five-member appointed body will begin making procedural decisions during a hearing set for May 29.

Deputy City Attorney Peter Keith, who is representing Mayor Ed Lee and leading the city’s prosecution, took an aggressive tack in criticizing Mirkarimi for refusing to be deposed by him and announcing Lee’s intention to add that unwillingness to cooperate to the formal charges against Mirkarimi.

But Mirkarimi’s attorney Shepherd Kopp called that threat “beyond the pale. We have a legitimate legal question we need straightened out and we won’t be bullied.” That issue involves what rights and obligations Mirkarimi has in this process, which the commission has yet to establish. 

Kopp complained that the mayor and City Attorney’s Office are usurping the commission’s charter-mandated role as the investigative body in official misconduct cases by issuing subpoenas for evidence and witnesses before the rules for the hearings have even been set or Mirkarimi has been presented with the evidence against him.

“Until we understand what the mayor’s evidence is, we have no way of preparing a defense,” Kopp said, adding that, “The charges were brought before the evidence was in the mayor’s possession.”

He called for the commission to take control of the investigation and establish discovery rules rather than letting the Mayor’s Office act on its own. “We feel like we have one hand tied behind our backs,” he said. “Whatever the rules are, they ought to apply to both sides.”

There’s very little that Kopp and Keith agree on at this point. Kopp wants the Ethics Commission vote to be unanimous if it recommends removal, as with juries on criminal cases, but Keith argues that a simple majority will do. The Board of Supervisors will make the final decision, with nine of 11 supervisors required to remove an official. Kopp says the standard of guilt should be “beyond a reasonable doubt,” but the city will likely argue for a lower standard, such as preponderance of evidence.

Kopp wants the commission to establish the standard that official misconduct must be related to the sheriff’s official duties and have occurred while he is in office, but Keith indicated that the events of Jan. 4, when the police began to investigate the domestic violence incident and before Mirkarimi was sworn in as sheriff, are an important part of their case.  

Keith noted that Mirkarimi could demand a closed door hearing, as the courts have agreed that law enforcement officers are entitled to, but Kopp told the commission, “We do not intend to insist these hearings should be private. We want them to be public.”

There were even internal differences within the city. Ethics Commission Executive Director John St. Croix last week wrote a memo recommending that testimony from witnesses be in written form, but the City Attorney’s Office today wrote a last-minute memo arguing the need for live testimony and cross-examination of witnesses.

“A live hearing is going to better serve the goals of the commission,” Keith argued, calling for it to be “something of a mini-trial.” Kopp agreed with that characterization, calling it “akin to a criminal proceeding,” and with the need to allow live testimony: “I think it will be unavoidable for at least a couple witnesses.”

Commission members asked a number of questions to both sides, but with such a broad range of issues still to be decided, they seemed to be only tentatively scratching the surface and unsure how to proceed. But there were a couple questions from Chair Benedict Hur that were illuminating.

“Does the mayor dispute that he has the burden of proof here?” Hur asked Keith, who replied, “No.”

Keith cited Mirkarimi and his wife, Eliana Lopez, as two witnesses who will likely be the subject of live testimony and vigorous cross-examination. But when Hur asked Kopp whether he would object to the commission compelling testimony from Lopez, he said that’s connected to a variety of outstanding procedural issues and he wouldn’t be able to answer “for quite some time.”

Indeed, both sides have indicated that they would need at least 30 days to prepare their cases once all the procedural and evidentiary issues are resolved, pushing the hearing back until at least July, although all sides say they want the matter resolved as quickly as possible.

“The longer this drags out, the person being most prejudiced is the sheriff,” said Commissioner Paul Renne, who was appointed by District Attorney George Gascon in February and who opened the hearing by admitting having given a $100 campaign donation to Chris Cunnie, who ran against Mirkarimi. Ironically, it was Renne who seemed most taken aback by Keith’s threat to add Mirkarimi’s refusal to cooperate with the city’s prosecution to the charges against him.

But Kopp said Mirkarimi will be happy to offer his testimony and comply with requests for documents once the commission establishes the rules and procedures and exerts its authority over the proceedings: “If you think he’s got to cooperate and turn it over, we’ll do it.”

The first city brief is due April 30, but the most illuminating deadline will likely be May 7 when the Mayor’s Office must submit its proposed list of witnesses and a summary of their expected testimony, which should be an early indicator of the strength of their case against Mirkarimi.

Judge denies Mirkarimi motions; city process begins Monday

Sasha Cuttler
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Judge denies Mirkarimi motions; city process begins Monday

Superior Court Judge Harold Kahn today denied all motions by Sheriff Ross Mirkarimi’s legal team challenging his suspension without pay, city procedures, and the constitutionality of the city’s official misconduct charter language, saying it’s premature to conclude Mirkarimi isn’t being treated fairly.

“But the courthouse door remains open,” Kahn concluded, inviting Mirkarimi to return after the Ethics Commission establishes rules of procedure and evidence, which it will begin doing on Monday. Today’s rulings, and another yesterday, in which Kahn ruled against a motion to disqualify the City Attorney’s Office from overseeing the proceedings, clears the way for the Ethics Commission to consider recommending to the Board of Supervisors that Mirkarimi be removed from office.

Kahn also seemed to agree with Mirkarimi’s team that Mayor Ed Lee didn’t give him a fair hearing before suspending him or that he made an argument for suspending him without pay. But Kahn sided with the city on the legal question of whether Mirkarimi has a “property interest” in his salary, which would have triggered the right to a hearing before being suspended, making such procedural questions moot.

“If there was a property right, what the mayor stated would not be adequate due process,” Kahn said, referring to Lee’s affidavit describing their March 19 meeting, where Lee told Mirkarimi to resign or be suspended. Lee claims he gave Mirkarimi the opportunity to tell his side of the story, which Mirkarimi denies, saying the mayor had made up his mind and wasn’t interested in the real story. On the salary question, Deputy City Attorney Sherri Kaiser said Mirkarimi would be entitled to full back pay from his suspension period if the supervisors vote to keep him in office, arguing that he isn’t being harmed.

Mirkarimi was suspended based on language in the city charter that was adopted in 1996 – banning “conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers” – that has never been reviewed by the courts and which Mirkarimi attorney David Waggoner contends is unconstitutionally vague.

But Kahn didn’t agree, saying, “The charter is not so clearly outside the bounds of California law that I should preempt the processes.”

Waggoner complained that the city procedures didn’t set rules of evidence or procedure or standards of guilt, making it difficult to prepare a defense, a point to which Kahn seemed sympathetic, noting the variety of legal standards for different types of cases, from “beyond reasonable doubt” to “a preponderance of evidence.”

“We don’t know which of any of those is going to apply here. Is that a problem?” Kahn asked Kaiser.

She said no, that Mirkarimi and his legal team could return to court for help “if the commissioners really mess up” in the work they’ll begin on Monday. “That summarizes my view. It is hypothetical to say the procedures are going to be unfair,” Kahn agreed. 

Addressing reporters after the hearing, Kaiser praised the judge’s rulings and offered a small window into what will likely transpire in the coming months: “Certainly, the sheriff is going to have to testify under oath and not just to the media.” (Waggoner told reporters “no comment” when asked whether Mirkarimi will indeed testify under oath).

Kaiser’s apparent dig at the various media interviews that Mirkarimi has just started to grant this week echoes statements that have come from District Attorney George Gascón, who has criticized Mirkarimi’s characterization of his guilty plea and the behaviors that constituted false imprisonment, calling the media accounts “disturbing and telling.”

But Mirkarimi shot back at Gascón today, noting that the two men “have had some very high-profile disagreements” when Gascón was police chief and Mirkarimi chaired the Board of Supervisors Public Safety Committee. They had high-profile clashes over requiring police to do foot patrols, the crime lab controversy, budget issues (including Mirkarimi’s unsuccessful efforts to find out how much Mayor Gavin Newsom’s police security detail was costing the city as he ran for governor), and Gascón’s controversial public statement equating people of Middle Eastern descent (such as Mirkarimi, who is Persian) with terrorists.

“It sometimes bubbles up in the course of these proceedings,” Mirkarimi said of Gascón’s alleged personal or political animosity toward him.

Asked for a response, District Attorney’s Office spokeperson Stephanie Ong Stillman wrote, ““It is the duty of the San Francisco District Attorney to uphold the law,
regardless of who violates it and without political motivation.  Ross Mirkarimi was afforded the same rights as any defendant. We treated his case no differently than any of the 776 domestic violence cases our office charged and reviewed last year.”

“This was such a wipeout psychologically”: Mirkarimi tells the story Lee didn’t want to hear

Sasha Cuttler
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“This was such a wipeout psychologically”: Mirkarimi tells the story Lee didn’t want to hear

As Ross Mirkarimi and his legal team prepare for a trio of legal hearings that could determine the future of his career, the suspended sheriff sat down with the Guardian for nearly two hours in his first extended interview recounting what happened during that fateful New Year’s Eve conflict with his wife, their actions in its aftermath, and whether any of it should cost him his job.

As the story continues to unfold, and the facts come out, it’s becoming more and more clear that neither of two central players – Mirkarimi’s wife, Eliana Lopez, and the neighbor who called the police, Ivory Madison – had any idea how this would play out, or, apparently, any desire for the incident to bring down the elected sheriff.

Mirkarimi has been in a bind for much of the last four months: Because of a pending criminal case, he hasn’t been able to tell his side of the story. And since he pled guilty instead of going to trial, his version of events is only now beginning to trickle out.

And the interview made clear that the man who has in the past been accused of arrogance has lost a lot of his ego.

“This was such a wipeout psychologically,” Mirkarimi said. “It makes me immensely insecure and has left me in vulnerable state.”

He looks it – the elected sheriff’s face is drawn, almost haggard. His once-frequent smile and laughter is almost gone.

>>Read our full Mirkarimi coverage here.

He’s a politician who freely admits he had marital troubles, was in some ways a bad husband, treated his wife poorly and, in an incident sparked by his own anger, physically hurt her. He knows he’s let down his supporters and damaged his once-bright political future.

He’s struggling to keep his job, arguing that the incident has been blown out of proportion and inappropriately used to remove him from elected office, with Mayor Ed Lee showing a reckless disregard for the truth before making the rare decision to institute official misconduct proceedings.

And you don’t have to endorse Mirkarimi’s actions or even agree that he should stay in office to find indications that the mayor’s case against him is shaky and at times clearly unfair.

Judge Harold Kahn will hear arguments today [April 19] that the City Attorney’s Office should be barred for overseeing the official conduct proceedings, and the next day he will hear Mirkarimi’s main challenges to Lee’s actions, including the arguments that the city’s official misconduct statute is unconstitutionally broad and that Mirkarimi was denied due process before being suspended without pay.

Then, on April 23, the Ethics Commission will convene to discuss procedures for handling the case.

Some key issues that could affect the outcomes of the city and court processes involve what Mirkarimi actually did – as opposed to what others have suggested he did. The whole thing may hinge on whether the sheriff did anything to hinder the domestic violence investigation, what his plea deal to official misconduct entailed – and whether the mayor made efforts to differentiate between fact and rumor.  

But let’s start at the beginning, just before lunchtime on New Year’s Eve, with a story that Mirkarimi told in great detail as we peppered him with questions seeking details on what happened, what his motivations and thoughts were at critical junctures, and what it all meant.

Around 11:45 am on Dec. 31, Mirkarimi, Lopez, and their nearly three-year-old son, Theo, got into their red 1998 Dodge Caravan to go to lunch at Delfina Pizzeria. Just before leaving their house on Webster Street, the couple had started talking about how Lopez wanted to take Theo on a trip to her native Venezuela to visit her father, who is battling cancer.

“It was not an unfamiliar topic,” Mirkarimi said, recounting how it had become an issue of increasing concern by him after her three previous trips had each been extended. They had been having marital problems, and he told us he was concerned that she might not come back – or that Theo could be at risk of kidnapping.

“We didn’t have a plan and there was no permission,” Mirkarimi said, with “permission” meaning his written permission to take their son out of the country, which he had learned from a lawyer was required. “The body of our quarrel on Dec. 31 is we need a plan.”

But Lopez told him in the car than she had also talked to an attorney and she contested that it was as clear-cut as Mirkarimi claimed. He later learned that the “attorney” Lopez was referring to was their neighbor, Ivory Madison, a writer who had attended law school and noted her “legal training” on the www.redroom.com website she ran with her husband, lawyer Abraham Mertens. But Madison hadn’t taken the bar exam and wasn’t licensed to practice law in California.

“This was a sucker punch, it really walloped me,” Mirkarimi said of the news that Lopez was speaking with an attorney, and it made him angry. “I was acting inappropriately, I swore at my wife and said ‘where is this coming from?’ So I could have handled it better.”

“I decided, because we were quarreling, to make the unilateral decision against Eliana’s wishes to turn the car around,” he said.

This, he contends, was the act that constituted false imprisonment, the misdemeanor charge that he pled guilty to last month in exchange for prosecutors dropping misdemeanor charges of domestic violence, dissuading a witness, and child endangerment. Mirkarimi contends this was the only point in their conflict in which he restrained his wife’s freedom. Other reports suggest that he didn’t let her leave the house shortly after the conflict, which he denies.

Mirkarimi’s criminal attorney, Lidia Stiglich, told us false imprisonment is a very broad term, and because it was such low-level charge, there wasn’t a specific action it covered. In other words there’s nothing factual in the legal record or anywhere supporting the notion that Mirkarimi actually held his wife against her will.

“You don’t need to agree to a factual basis to plead to a misdemeanor,” Stiglich said, noting that Mirkarimi’s interpretation is reasonable, but prosecutors might mean something different by it. “We can agree to disagree,” she said, although she acknowledges that vagueness has opened him up to a variety of interpretations in the political arena.

In other words, the notion that a sheriff, who oversees the jails, has pled guilty of false imprisonment looks just terrible, and has been been played up in the press. But it’s not clear that he actually imprisoned anyone, beyond refusing to take his wife and son to lunch. It’s an oddity of law, and the nuance doesn’t play well in a scandal-crazed media.  

But back to the day of the incident.

“I was loud, I was gruff, I was just pissed off, and I am ashamed of my behavior,” Mirkarimi said. By the time they got back home, the sheriff-elect had calmed down, but Lopez was getting increasingly angry at being mistreated.

He said she quickly got out of the car and was brusquely trying to remove Theo, who was crying and upset over his parents’ conflict, from his car seat. “I got scared because Theo was in danger a little bit,” he said, his voice choking up and eyes filled with tears, saying that he reached back and grabbed Lopez’s right arm, with three fingers under her arm, while he was still seatbelted into the front seat.

“Eliana reacted like, get away from me, and she tugged her arm,” he said. “The incident was minutes.”

Inside the house, tensions quickly de-escalated, he said, and they didn’t discuss the conflict again that day. They went grocery shopping together, brought home takeout for dinner, and Lopez went out briefly that night while Mirkarimi stayed home with their son.

But the next morning, she showed him the bruise that had formed on her right bicep where he grabbed her. “She said, ‘Look,’ and it just crushed me,” Mirkarimi said, adding that he apologized for hurting her and that he agreed to go to couples counseling.

Lopez had been asking her husband to seek counseling for some time, he acknowledged, and he’d been putting it off. “I take full blame that that didn’t happen earlier,” he said.

Then, mid-morning, Lopez told him that she was going to talk with their neighbors, Madison and Mertens, who Mirkarimi considered “nice people. They were supporters during my race, but I didn’t know them that well.” He said that he didn’t think much of it or worry that she might talk about the previous day’s incident, although he said he did make the connection after she left that perhaps this was the “lawyer” Lopez has referred to the day before – something she later confirmed.

From Mirkarimi’s perspective, the next few days were uneventful. The family left for a long-planned vacation to Monterey the next day, staying at the Intercontinental Hotel and taking Theo to the Monterey Bay Aquarium. He said they talked “a little” about their New Year’s Eve conflict. “We were trying to gauge each other and our comfort level in talking about this,” he said. 

But Mirkarimi didn’t know about the storm that was brewing. He said he had no idea that Lopez had heeded Madison’s suggestion on Jan. 1 to make a video in which Lopez tearfully recounted the grabbing incident and displayed her bruise. Lopez, a former Venezuelan soap opera star, has consistently denied publicly that Mirkarimi ever abused her and has said, directly and through attorney Paula Canny, that the video was intended solely to be used in child custody proceedings if their marriage continued to devolve and that Lopez assumed she was getting legal advice and that the communications were private and subject to attorney-client privilege.

But Madison, who has not returned calls from the Guardian or other media outlets, wrestled with whether to go to the police and sought counsel on the question from several people, as information obtained by Mirkarimi’s team during discovery showed, including Phil Bronstein, the former editor for the Examiner and Chronicle who now chairs the board of the Center for Investigation and Bay Citizen.

Madison had two phone conversations with Bronstein, the veteran journalist told us. He said he knew Madison socially and “she gave me a brief narrative of the events.

“I said you should do whatever you think you should do to keep Eliana safe,” Bronstein told us.

Bronstein said he doesn’t know what happened between Mirkarimi and Lopez, but he understood from Madison that she was acting on behalf of Lopez, that the two women were communicating by text and e-mail, and that “I got the impression that Eliana was still trying to figure out what she wanted to do.”

“Eliana was continuing to e-mail with Ivory, saying he was being nicer now,” Bronstein said, but Madison was still concerned enough that she didn’t want to let the incident go, so Bronstein said she decided to call the San Francisco Police Department on Jan. 4 to get information on whether domestic violence incidents could be reported several days after they occurred, a decision he learned about after the fact.

“Ivory called the police hotline hypothetically to get information on when they can file,” Bronstein said, recounting a phone conversation they had on the afternoon of Jan. 4. But he said Madison was told by police that she could be charged with obstruction of justice for not reporting a crime – which isn’t exactly true under California law – and that SFPD had sent officers to her house to discuss the matter.

Shortly after that visit from police, Madison called Bronstein to tell him the story. “She was surprised that an inquiry had triggered a police investigation,” Bronstein said. Madison’s initial refusal to turn the videotape over to police, who needed a court order to seize it, is another indication that perhaps she didn’t want this case to explode the way it did.

In one version of events that Bronstein has discussed, Madison told him she wanted to help Lopez get in touch with three people who might be able to talk to Mirkarimi and convince him to seek counseling. Madison asked Bronstein if he had phone numbers for Aaron Peskin, Mike Hennessey and Art Agnos.

The odd thing about that is that Lopez already knew the three, and that their contact information was in the couple’s house.

But Mirkarimi had no idea any of this was going on, or even that his wife had discussed their conflict with Madison and made the videotape. “Everything happened on the 4th of January and literally I was the last one to know,” Mirkarimi told us.

Months later, Mertens wrote an op-ed for the Chronicle (“A neighbor’s side of Ross Mirkarimi case,” 3/20) in which he alleges Mirkarimi “paid a team of lawyers to relentlessly attempt to discredit, dissuade, and harm my wife,” although he didn’t return Guardian calls seeking comment or clarification of what he meant.

“The last time I spoke to Eliana was when she called me on Jan. 4. I recognized what I thought was Ross’ voice in the background as Eliana pressured me to destroy evidence and lie to the police. Then she repeatedly called Ivory, demanding that Ivory destroy the video, e-mail and texts from Eliana about the incident,” Mertens wrote. The allegation was parroted in the city’s official misconduct charges against Mirkarimi, which claim he “or his agents” sought to destroy evidence and obstruct the investigation.

But Mirkarimi and his lawyers say the charge is simply untrue. “The idea that he sought to get the videotape back or destroy it is nonsense,” Waggoner said, noting that Mirkarimi wasn’t even home as these events unfolded – on that fateful January day, he attended a ceremony marking the demolition of the old jail and then was in a long Budget Committee meeting, followed by a farewell celebration from the Local Agency Formation Commission. In other words, he couldn’t have been “in the background” during that call.

In fact, as far as we can tell, there is no evidence anywhere that Mirkarimi ever contacted Madison or Mertens. “I never talked to Ivory Madison and I never talked to her husband, Abraham Mertens, after any of this happened,” Mirkarimi said.

Mirkarimi said that Lopez first told him that she had told Madison about the grabbing incident by phone on the afternoon of Jan. 4, shortly after Madison told her in the street that she had called the police and they were on the way. Lopez didn’t know what to do and wanted to come meet her husband near City Hall. The officers that came tried to talk to Lopez, but she refused.

“She was panicked because she thought things were getting out of control with this neighbor and she asked for my recommendation,” Mirkarimi said, noting that Lopez literally ran from their home to City Hall and met Mirkarimi outside on Grove Street. It was then, he said, that Lopez first told Mirkarimi about making the videotape.

Mirkarimi said he greeted the news with stunned disbelief, and that his first instinct was to try to help his panic-stricken wife, but that he didn’t know what to do. “She was petrified about what was going on…She was frantic and I was getting frantic too,” he said. “I didn’t have a remedy, except oh my God, I think we need an attorney.”

They made a couple calls to find an attorney, and he said Lopez had the idea of having their friend, Linnette Peralta Haynes, a domestic violence advocate with the Our Family Coalition, reach out to Madison about why she had gone to police and what could be done at that point. “I had no idea what they were going to talk about,” Mirkarimi claims. Peralta Haynes didn’t return our calls and she is reportedly being sought as a witness by the City Attorney’s Office in the official misconduct proceedings.

Mirkarimi is adamant that he never did anything to gain possession of the videotape, dissuade his wife or any other witnesses from talking to police or prosecutors, or otherwise interfere with the investigation, even though Lopez was appealing to him to do something.

“She really wanted me to stop it, and I was like, dear, this bell has already rung and I don’t think we can unring it,” Mirkarimi said.

Lopez has said publicly that she felt betrayed by Madison, and Canny filed motions to suppress the video on the grounds of attorney-client privilege, conflicts that seem to have soured the relationship between the two women and fed feelings by Mertens that Madison was wronged for doing the right thing during the media circus that followed.

As a result, as part of Mirkarimi’s plea deal last month, the District Attorney’s Office insisted that Mirkarimi publicly apologize to Madison. It was an odd demand, since nobody (other than an op-ed writer in the Chron who gave no substantiation for his charges) had ever said that Mirkarimi had any contact at all with Madison.

DA’s spokesperson Stephanie Ong Stillman explained the insistence to us this way: “Ivory Madison’s actions were courageous. She found herself in a difficult situation trying to protect a friend who was in danger. In a surprising and disappointing turn, she was vilified for this act of courage. She suffered much unnecessary public scrutiny.”

Stillman wouldn’t deviate from that prepared statement when we asked specifically what Mirkarimi had done to Madison – or if there was any indication that the sheriff had ever done anything to “vilify” her – but she did said that the insistence on that direct apology was about encouraging witnesses of domestic violence, an underreported crime, to come forward. “We didn’t want other witnesses to be discouraged from reporting crimes after seeing what Ivory Madison went through,” she said.

Yet Stiglich said Canny’s motions and the divisions that developed between Lopez and Madison had nothing to do with Mirkarimi: “There were lot of actions taken by Eliana’s lawyers that caused a backlash that affected Ross.”

It’s not a minor issue: The allegation that Mirkarimi attempted to dissuade witnesses and used his official position to gain advantage is central to the mayor’s formal misconduct charges. But Mirkarimi and Stiglich maintain that there is nothing in the public record that supports the charge that he dissuaded witnesses or that he used his position as sheriff to gain advantage either before or after the incident.

“I was very surprised to see the allegation from the Mayor’s Office about dissuasion [of witnesses or interfering with the investigation] because there was no evidence of that,” Stiglich said. “He was the last person to know there was a video and that police were involved.”

It appears that Mirkarimi thought his guilty plea would end the case – and it was crafted not to give the mayor any grounds for removal. “I would not have entered a plea in a way that would inhibit my ability to be sheriff,” Mirkarimi said. “This was a very lucid conversation.”

In fact, he said, his instinct was to fight the charges all the way. “We were dying to go to trial,” Mirkarimi said.

But the cops and the DA’s Office did an excellent job of creating pre-trial publicity that made it almost impossible for Mirkarimi to get an impartial jury pool. Jury surveys showed that more than 70 percent of the potential jurors had already formed a negative opinion about Mirkarimi based on news coverage, he said.  

He has belatedly sought to address other oft-repeated misimpressions, disputing telling his wife that he would get custody because “I am a powerful man” (he says he told her the U.S. has powerful child custody laws) and saying journalists have distorted his comment that the conflict was “a private matter.”

In a charge that will be central to the upcoming legal battles, Mirkarimi and his attorneys say Mayor Lee wasn’t interested in hearing from Mirkarimi or discovering the truth about what happened before deciding to suspend Mirkarimi without pay and bring official misconduct charges against him. That, they say, denied the elected sheriff his due-process rights.

In his sworn affidavit in the case, Lee characterized his March 19 meeting with Mirkarimi – which he began by asking Mirkarimi to resign within 24 hours or be suspended – this way: “I explained to Sheriff Mirkarimi that I wanted to give him an opportunity to talk to me about this issue. It was a free flowing conversation with no time constraints. Sheriff Mirkarimi told me that he has not yet told his side of the story. I said, Okay, and waited for him to tell me his side of the story. He did not. Instead, after pausing, he asked me whether the suspension was based on his conduct as Sheriff. I responded that it was based on his conduct as a public official. I paused again and waited for Sheriff Mirkarimi to give me whatever information he thought important. He did not. Instead, Sheriff Mirkarimi asked me whether the suspension would be with or without pay. I told him it would be without pay. After giving him another chance to ask questions or give more information, I told Mr. Mirkarimi to consider my instruction to resign over the next 24 hours.”

But Mirkarimi said that narrative isn’t accurate or complete. He had sought to talk with Lee the previous week to explain what happened, but Lee refused. And when he showed up to talk to Lee on the March 19, he brought Sheriff’s Department legal counsel Freya Horne with him and asked that she be included in the conversation, but Lee refused, so there were no witnesses to the conversation.

“I went into that meeting with the express purpose to tell the mayor everything…As soon as I walk in the door, he gives me a little bit of preamble and then asks me to resign,”Mirkarimi said. “I said I’d really like you to talk to Eliana, can I give you her phone number? Nothing…I was asking questions and I wasn’t getting answers.”

Asked why he didn’t just start telling the full story, as Lee’s narrative indicates he was ready to hear, Mirkarimi insists that Lee simply informed him of the decision he had made and didn’t want to hear anything else. “He wanted the meeting to end after a minute, and I dragged it out by asking questions,” Mirkarimi said of the 15-minute meeting. Asked why he didn’t take a more forceful position, insisting on Horne being there or telling his full story, Mirkarimi said, “I’m the guy who’s trying to be contrite, not the one to walk in there with muscle.”

But now that those lines have been drawn, Mirkarimi says he intends to mount a vigorous defense, and he has some serious muscle on his legal team, including Waggoner and Shepard Kopp, who has worked on a variety of high profile cases.

Waggoner said the mayor’s affidavit, which he made under penalty of perjury, “is not truthful,” noting the inconsistency between telling Mirkarimi that he had made a decision to suspend him and saying he wanted to hear his side of story.

“That claim is undermined by his statements after when he describes how the meeting went down,” Waggoner said, saying he’s hopeful that the courts will agree that Lee acted inappropriately. “All that language undermines his initial claim that the purpose of the meeting was to gather information.”

That’s a central question: Did the mayor give the sheriff a chance to defend himself before making the highly unusual decision to suspend him? Or did Lee base that decision on evidence (like Mertens’ opinion piece) that lacked substantiation without giving Mirkarimi a chance to rebut it?

In other words, was Lee’s decision already made when he met with Mirkarimi? And if so, did the city’s chief executive deny another elected official the basic legal right to a fair hearing?

That’s what the courts will address.

Then if the case moves forward, the Ethics Commission will hold hearings –and again, Mirkarimi is at a disadvantage. The Mayor’s Office, through the city attorney, is already sending subpoenas to witnesses and preparing testimony. The defense can’t do that – because there are, at this point, no rules of evidence, no rights for the defense to compel testimony and, frankly, nothing for Mirkarimi’s lawyers to go on.

Four of the five members of the Ethics Commission are lawyers. At some point, they’re going to have to find a way to make this case comply to the rule of law.

Brown says Lee shouldn’t have taken Mirkarimi’s pay away

Sasha Cuttler
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Brown says Lee shouldn’t have taken Mirkarimi’s pay away

As Mayor Ed Lee continues to duck questions about why he suspended Sheriff Ross Mirkarimi without pay or due process, even former Mayor Willie Brown – who helped elevate Lee into Room 200 – is second-guessing the decision and its legality.

In his Willie’s World column in Sunday’s San Francisco Chronicle, entitled “Ross Mirkarimi needs cash in struggle to keep his job,” Brown wrote, “And on the salary point, I agree with Mirkarimi: He should not be suspended without pay. He should continue to get paid unless and until he ultimately is found guilty of misconduct by the Board of Supervisors.”

The issue isn’t just one of fairness or of Lee trying to coerce Mirkarimi into resigning to avoid city hearings that will determine whether grabbing his wife’s arm during a New Year’s Eve conflict constitutes official misconduct, as Lee charges. It’s also a specific legal issue, particularly to lawyers like Brown.

Mirkarimi’s attorney, David Waggoner, said it’s not surprising to see Brown publicly undercutting the mayor on this issue. “He’s simply stating what the applicable law is on the subject,” Waggoner told us. In this case, it was the Supreme Court, hearing the case Skelly v. State Personnel Board in 1975, that said an executive can’t just unilaterally take away someone’s livelihood.

“If you’re going to fire public employees, you have to give them notice, you have to let them respond, you need to observe due process,” Waggoner said.

That’s one of three causes of action that Superior Court Judge Harold Kahn will consider in a hearing set for April 18 at 9:30 am, where Mirkarimi is asking the courts to reinstate him and restore his salary pending hearings before the Ethics Commission and Board of Supervisors that could take months.

Given the pressure being applied by anti-domestic violence groups and many mainstream media voices, Lee may have felt like he had to remove Mirkarimi and that he could just blame supervisors or the process if it didn’t work. But if the courts find Lee acted illegally while attempting to put supervisors in such an untenable position, it could be a serious blow to Lee’s reputation and governing authority.

UPDATE 5 PM: I also placed a call on the issue to former Mayor Art Agnos, who just back to me and he agreed that Lee acted in a way that was unfair and probably illegal. “I think it’s heavy-handed,” said Agnos, who has been supporting Mirkarimi through the ordeal.

Agnos noted that former Sheriff Richard Hongisto served several days in jail for contempt of court for refusing to carry out the evictions of International Hotel tenants, and he never had his pay docked or faced official misconduct charges. “And here, we see the sheriff being charged with something that occurred before he even took office, and it’s a low-grade misdemeanor that he accepted a plea deal on.”

According to Agnos, Mirkarimi told him that during his brief conversation with the mayor, he offered to tell his side of the story and have Lee talk to his wife, Eliana Lopez, as well, but the mayor wasn’t interested. “When you’re the mayor, you like to hear both sides before making a decision,” Agnos said. “But Lee wasn’t interested.”

Sorting through scandal

Andrew Lam
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Sorting through scandal

news@sfbg.com

>>Read the Guardian Op-Ed by Eliana Lopez’s friend Myrna Melgar here.

On March 20, Mayor Ed Lee announced his decision to suspend and seek the removal of Sheriff Ross Mirkarimi, taking the city into complex and uncharted legal and political territory. He did so with little explanation in a statement lasting two minutes. Then he went and hid.

Over the past week, the mayor has refused to expound on the reasoning behind his decision, won’t answer questions from reporters, and has held no public events where he might face the news media.

But he’s set off the political equivalent of a nuclear bomb, forcing the supervisors to take on a no-win situation in an election year and leaving the City Attorney’s Office, the Ethics Commission, and Mirkarimi’s lawyers scrambling to figure out how this will all play out.

At issue is whether Mirkarimi’s guilty plea to a misdemeanor false imprisonment charge — and his actions since the New Year’s Eve conflict with his wife, Eliana Lopez, that led to the three domestic violence charges that he originally faced — warrant his immediate removal from office without pay pending hearings that could take months. Mirkarimi, the mayor alleges, violated official misconduct standards written into the City Charter with little discussion in 1995, broad language that has yet to be interpreted by a court.

Mirkarimi and his new attorney, David Waggoner, responded March 27 by filing a court petition challenging that language — “conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers” — as unconstitutionally vague and arguing Lee abused his mayoral discretion in suspending Mirkarimi and violated his due process rights by taking away his livelihood without a hearing. They are asking the court to order Mirkarimi’s reinstatement, or at least the restoration of his salary, until the long city process determines his fate.

“It makes it more difficult for the sheriff to fight these charges when he’s suspended without pay,” Waggoner told us.

To those who have been calling for Mirkarimi’s removal for the last few months, the case seems simple: Mirkarimi grabbed Lopez’s arm with enough force to leave a bruise, police and prosecutors got a video the neighbor made of the wife tearfully telling the story, and Mirkarimi tried to quell the controversy by calling it a “private matter” — infuriating anti-domestic-violence advocates who have spent decades trying to explain that DV is a crime, not a family issue. The sheriff ended up pleading guilty to a related charge.

That, many say, is plenty of reason to remove him from office: How can a top law-enforcement official do his job when he’s been convicted of a crime for which advocates say there should be zero tolerance? How can a man who runs the jails have any credibility when he’s pled guilty to false imprisonment?

“He has chosen not to resign and now I must act,” Lee said at a press conference he held shortly after the 24-hour deadline he gave Mirkarimi to resign or be removed.

But like everything in this politically fractured and passionate city, it’s a lot more complicated.

WHAT REALLY HAPPENED

Lopez and her attorneys have consistently maintained that Mirkarimi was not abusive, that the video was created solely in case their deteriorating marriage devolved into a child custody battle, and that it was not an accurate description of what happened that day, suggesting the former Venezuelan soap opera star was telling a particular kind of story.

The Guardian and the San Francisco Chronicle (“Mirkarimi’s argument with wife detailed,” March 25) have pieced together some of what happened. Sources say the couple argued in the car on the way to lunch at Delfina Pizzeria about whether Lopez would take their nearly three-year-old son, who was sitting in the backseat, with her to Venezuela.

The couple had been having marital problems and Mirkarimi, worried that she might not return or that their son could be kidnapped for ransom, got angry. As the argument escalated, Mirkarimi decided to take the family home. On the way, Mirkarimi told her that he had spoken to a lawyer and learned that she needed written permission from him to take their son out of the country and that he wouldn’t do so.

That made Lopez angry and she got out of the car and tried to unfasten their son to leave when Mirkarimi grabbed her right arm, leaving a bruise that was clear in the videotape but which wasn’t visible a week later when she wore a sleeveless dress to Mirkarimi’s swearing in ceremony for sheriff.

That’s the couple’s version of events, anyway. There are no witnesses who can verify or dispute it.

Lee never called Lopez or her attorney to hear this story before deciding to remove him from office. But in the official charges he filed against Mirkarimi, Lee alleges “acts of verbal and physical abuse against his wife” and that he “restrained Ms. Lopez and violated her personal liberty,” plus unproven allegations that he was never charged with, including encouraging neighbors to destroy evidence, and of hurting morale in the Sheriff’s Department (based on a newspaper quote from a political opponent).

You don’t have to defend Mirkarimi’s conduct or belittle the serious crime of domestic violence — in fact, you don’t have to believe anything the sheriff or his wife have said — to ask a few basic questions. Is this extraordinary executive power warranted in this case? What harm would come from waiting for a recall election, the usual method of removing elected officials after a scandal? Why did Lee give Mirkarimi 24 hours to resign and did he offer anything as incentive (sources tell us he offered another city job)? Will he release the City Attorney’s Office advice memo, and if not, why?

The Guardian submitted those and many other questions to Mayoral Press Secretary Christine Falvey, who said she would answer them by March 23, but then sent us this message at the end of that day before going on vacation: “After looking at your questions, it seems Mayor Lee addressed much of this in his comments on Tuesday. After Sheriff Mirkarimi pleaded guilty to a crime of false imprisonment, Mayor Lee made a thorough review of the facts, reviewed his duties under the Charter and gave the Sheriff an opportunity to resign. When that did not happen, he moved to suspend the Sheriff.”

Very few progressives have stood up publicly and taken Mirkarimi’s side. One of them is Debra Walker, a longtime activist and city commissioner.

“This is about McCarthyism at this point, and not domestic violence,” Walker told us. “Instead of helping [Lopez], they have succeeded in breaking this family apart. It’s just bullying. It was always aimed at Ross stepping down and removing him as sheriff.”

THE LEGAL MESS

So what happens next? It is, to say the least, unclear.

The last time a public official was charged with misconduct was in the 1970s, when Joe Mazzola, an official with the Plumbers Union, was removed from the Airport Commission because he refused to order striking plumbers back to work. The state Court of Appeal later overturned that decision, ruling that “official misconduct” had to be narrowly construed to be conduct directly related to the performance of official duties (a case Waggoner relies on in his petition).

But the City Charter has changed since then, and now allows removal for the vague charge of “conduct that falls below the standard of decency and good faith and right action impliedly required by all public officers.” That phrase gives extraordinary power to the mayor — and, given some of the conduct we’ve seen at City Hall over the years, could have been used to remove a long list of city officials.

The Charter states that Mirkarimi, as the accused, will get a hearing before the Ethics Commission, and that he can be represented by counsel. It’s silent on the question of what form that hearing will take, what the rules of evidence will be, what witnesses will be allowed, and what rights the defendant will have.

Four of the five Ethics Commission members are practicing attorneys, and before they can call a hearing, they’ll have to hold a meeting to discuss the rules.

In the case of former Sup. Ed Jew, who was accused of falsifying his address, Ethics was prepared to take only written testimony (Jew resigned before any hearing, partially to deal with more serious federal charges of shaking down constituents for bribes). But that’s not a hard and fast rule — this time, the panel could decide to allow both sides to present witnesses.

If the commission decides to allow evidence, someone will have to rule on what evidence can be presented and what can’t. Will that be the commission chair, Benjamin Hur, or the commission as a whole?

The answer is: Nobody knows for sure. Hur told us he couldn’t comment on anything related to the case; the City Attorney’s Office won’t comment, either, since the office is representing both the mayor (on the prosecution side) and the supervisors and the Ethics Commission, and the board and the commission haven’t made any decisions on rules yet.

Then it gets even trickier. The Board of Supervisors has to vote on whether to remove the sheriff, and it takes nine votes to do that. So if three supervisors vote no, Mirkarimi is automatically back in office.

There are no rules in the Charter for how the board will proceed; in theory, the supervisors could simply accept the recommendation of the Ethics Commission and vote without any further hearings. They could rely on the record of the Ethics proceedings — or they could hold the equivalent of a second trial, with their own witnesses and procedures.

To add another layer of confusion, Mirkarimi, as sheriff, is classified under state law as a peace officer — and the Peace Officers’ Bill of Rights sets entirely different standards for administrative and disciplinary hearings. Among other things, Mirkarimi could assert the right to have the Ethics Commission hearing closed to the public and the records sealed.

State law also mandates that a peace officer facing suspension without pay has the right to a hearing and adjudication within 90 days. That’s not in the City Charter; under the Charter, the city can wait as long as it wants to decide the issue.

Nobody knows for sure whether the Peace Officers Bill of Rights trumps the City Charter.

It’s clear that Mirkarimi, like anyone accused of a crime or facing an administrative hearing, has the right to due process — but not necessarily the same rights as he would have in a court proceeding. It’s also clear that the supervisors will be sitting in a quasi-judicial role — and thus can’t take into account anything that isn’t part of the official record of the case.

They probably can’t, for example, hold a public hearing on the issue — and judges in a case are theoretically supposed to ignore the hundreds of calls and emails that are now flooding in to the board offices on all sides.

The political implications are equally complex. Lee would have been in a dangerous situation if he declined to file charges — if Mirkarimi ever did anything else this disturbing, some would say it was Lee’s fault for leaving him in office.

It’s a safe bet that none of the supervisors are happy about having to vote on Mirkarimi’s job, but it’s particularly tough for the progressives. Anyone on the left who votes against removal will be subject to a barrage of attack ads — and since the balance of power on the board will be decided in November, when David Chiu, John Avalos, Eric Mar, David Campos, and Christina Olague, all more or less part of the progressive bloc, will all be up for re-election, the pressure on them will be immense.

That, in and of itself, ought to be reason for the sheriff to step down, some progressives say: Is preserving Mirkarimi in the Sheriff’s Office worth potentially destroying the progressive majority on the board? It’s a good question — and one that Lee’s advisors were well aware of, too.

Lee’s charges against Mirkarimi leave questions unaddressed

Sasha Cuttler
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UPDATED BELOW WITH “RESPONSE” FROM LEE’S OFFICE: Sheriff Ross Mirkarimi was formally suspended today and served with “Written Charges of Official Misconduct” that for the first time outline why Mayor Ed Lee believes Mirkarimi should be removed from office, although they leave unaddressed many questions that Lee has been so far been avoiding answering.

The eight-page legal document prepared for Lee by the City Attorney’s Office briefly lays out the process (a hearing before the Ethics Commission, its recommendation, then action by the Board of Supervisors within 30 days thereafter) and the definition of official misconduct, focusing on this phrase: “conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers.”

That vague language is fairly new and has never been considered or interpreted by any court, and the city acknowledges there are at least “two reasonable interpretations” of its meaning: “This phrase could be either (a) an example of misconduct that, by definition, relates to the duties of all public officers, or (b) an independent, alternative category of official misconduct that does not require a connection to an officer’s official.”

Lee’s attorneys argue that they don’t think a direct connection to an official’s duties is required, but they acknowledge that’s how it could be interpreted, so they try to make that connection as well, often by relying on evidence and testimony that hasn’t been vetted by the courts or by making connections likely to be challenged by Mirkarimi’s new attorney, David Waggoner.

The document recounts the “Wrongful Conduct by Sheriff Mirkarimi,” starting with his “acts of verbal and physical abuse against his wife, Eliana Lopez” on New Year’s Eve, continuing through the criminal charges filed against him on Jan. 13 with a focus on allegations that he dissuaded witnesses and “encouraged them to destroy evidence” and with his March 19 sentencing for false imprisonment, concluding the section with a reference to the newspaper quote from Don Wilson, president of the San Francisco Deputy Sheriff’s Association, that the plea had hurt morale in the department.

The DSA actively opposed Mirkarimi’s election, just as it did his predecessor and mentor, Michael Hennessey, in every contested election in the legendary progressive sheriff’s 32-year career, so it seems a little strange to rely on such a self-serving assessment. But that isn’t the only point that raises questions and potential challenges, particularly as they try to argue that Mirkarimi’s actions related to his official duties.

Part of Mirkarimi’s sentence included one day in jail, for which the judge said his booking qualified, meaning that he never actually was inside a cell. But Lee’s attorneys argue without explanation that, “Sheriff Mirkarimi’s one-day sentence to county jail undermines his ability to receive inmates and to supervise the County jails.” It certainly didn’t seem to for former Sheriff Dick Hongisto, who was jailed for several days after being held in contempt of court for refusing to carry out the International Hotel evictions, but who never faced sanctions from the mayor.

The first and seemingly strongest connection it makes between his actions and official duties listed was, “Sheriff Mirkarimi misused his office, and the status and authority it carries, for personal advantage when he stated to Ms. Lopez that he could win custody of their child because he was very powerful,” a charge taken from the videotaped testimony that Lopez gave to his neighbor Ivory Madison.

Lopez’s attorneys have noted that she made the video to paint Mirkarimi as abusive in case there was a custody battle, as she says on tape, and that she was seeking confidential legal help from Madison and never intended for it to be released. But her and Mirkarimi’s attempts to retrieve it are labeled in the charges as efforts to “encourage the destruction of evidence regarding criminal activity,” which they argue also relates to his duties as a law enforcement officer. This issue is likely to be a matter of serious debate during the Ethics Commission hearing.

Finally, the document argues that because the Sheriff’s Department can enforce protective orders in domestic violence cases and funds programs for domestic violence perpetrators – and because it sometimes interacts with the Adult Probation Department, given Mirkarimi’s three-year probation – that the charges directly relate to his official duties.

Clearly, these are complicated issues that raise a variety of questions, which is why it was disconcerting yesterday when Lee announced the charges to a room packed with journalists and refused to take any of our questions. City Attorney Dennis Herrera didn’t speak at all, simply standing behind Lee looking stone-faced and perhaps a bit uncomfortable.

Earlier today, I sent Lee and his Office of Communications a list of questions that I think he has a public obligation to address given the drastic action that he’s just taken against an elected official. I haven’t received a reply yet, but I’m including my comments here for you to consider as well:

 

I was disappointed that Mayor Lee took no questions during yesterday’s press conference, because I had several that I’m hoping you can address for a long story we’re writing on the Mirkarimi affair for our next issue. I’m hoping to get answers by the end of the workday on Friday.
– Will Mayor Lee release the memo he received from the City Attorney’s Office on Ross Mirkarimi and whether his crime rises to the level of official misconduct? [Note to reader: That advice memo is different than the charges I discuss above.] It is solely under Lee’s authority to waive attorney-client privilege and release the memo, as even Willie Brown urged him to do in his Chronicle column on Sunday. And if he won’t release it, can he explain why?
– Lee told reporters last week that he would explain why Mirkarimi’s action rise to the level of official misconduct if concluded they did, but Lee didn’t offer that explanation yesterday. Why does Lee believe actions that Mirkarimi took before assuming office, which were unconnected to his official duties, warrant his removal from office? Is Lee basing his decision primarily on the crime Mirkarimi committed on New Year’s Eve or his actions and statements since then? What specific actions or statements by Mirkarimi does the mayor believe rise to official misconduct?
– Why didn’t Lee consult with Eliana Lopez or her attorney before making this decision? None of the purported evidence in this case has been scrutinized by the courts as to its veracity or completeness (that would have happened at the trial). The only two people who know for sure what happened that night are Ross and Eliana, so why hasn’t Lee asked either of them what happened?
– Why did Lee set a 24-hour deadline for Mirkarimi to resign or be removed? Did Lee offer Mirkarimi anything in exchange for his resignation, such as another city job?
– Who did the mayor consult with about whether Mirkarimi should be removed before making this decision? Were any members of the DSA or SFPOA consulted? How about Rose Pak or other members of the business community? How about Michael Hennessey? Did he seek input and advice from John St. Croix or anyone from the Ethics Commission?
– It’s my understanding that the mayor wasn’t required to remove Mirkarimi from office without pay pending his official misconduct hearings, that Mirkarimi could have either remained in the job or been suspended with pay. Why did Lee feel a need to place this additional financial pressure on Mirkarimi to abandon the office that voters elected him to? Is he concerned about the impact of his decision on Eliana Lopez and Theo?
– Mayor Lee has prided himself on being someone focused on “getting things done” without creating unnecessary political distractions. So why does he want to drag out this distracting political drama for another few months? Why does he believe that it’s a good use of the city’s time and resources to be a forum for airing details of a sordid conflict that has proven to be a divisive issue? Is he worried about exposing the city to liability in a civil lawsuit if his charges against Mirkarimi are later found to be without merit?
– Does Lee intend for Vicki Hennessy to be the permanent replacement for Mirkarimi if the official misconduct charges are upheld? Will he take into account the will of the voters in electing Mirkarimi, someone who had pledged to uphold and continue the legacy of progressive leadership of the Sheriff’s Department as embodied by the long career of Michael Hennessey? Given that the DSA consistently opposed Hennessey at election time, and that in this election voters rejected the DSA’s choices, why is Lee substituting his own judgment and political preferences for those of San Francisco’s voters? Why did Lee feel a need to take preemptive action against Mirkarimi rather than simply allowing voters to launch a recall campaign, which is the typical remedy for removing politicians who have gone through some kind of public scandal?

UPDATE 3/26: Mayoral Press Secretary Christine Falvey told the Guardian that we would have answers to these questions by Friday, but then sent the following message as a response late Friday afternoon: “Steve, After looking at your questions, it seems Mayor Lee addressed much of this in his comments on Tuesday. After Sheriff Mirkarimi pleaded guilty to a crime of false imprisonment, Mayor Lee made a thorough review of the facts, reviewed his duties under the Charter and gave the Sheriff an opportunity to resign. When that did not happen, he moved to suspend the Sheriff. For any information regarding what is in the charges, I will refer you to the City Attorney’s office and their website that has all of the public documents posted.”

For the record, Lee has not addressed these questions nor made any public statements on whether he will release the advice memo (as even Willie Brown publicly urged him to do) or explained why he’s keeping that document secret. And we haven’t even had the opportunity to ask the mayor these questions directly because he hasn’t held any public events since announcing his decision to remove Mirkarimi.

Mayor Lee ousts Sheriff Mirkarimi

Sasha Cuttler
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Mayor Lee ousts Sheriff Mirkarimi

San Francisco Mayor Ed Lee temporarily removed Sheriff Ross Mirkarimi from office today over a domestic violence case, dragging this long and sordid saga into the summer as city officials prepare a rare official misconduct hearing.

The brief announcement came just minutes after a 24-hour deadline Lee had set for Mirkarimi to resign or be removed. Lee took no questions from the huge crowd of journalists that had packed into his office and offered scant explanations about why he believes the process is warranted and how it will affect the city.

Standing behind Lee were City Attorney Dennis Herrera, with whom Lee had consulted on the decision, and Vicki Hennessy, a retired chief deputy from the Sheriff’s Department who Lee named interim sheriff. Shortly before the announcement, Mirkarimi told reporters he had no intention of resigning.

“He has chosen not to resign and now I must act,” Lee told reporters, emphasizing that “I do so with an understanding of the seriousness and gravity of the situation.”

Lee made no statements about how Mirkarimi’s guilty plea to a misdemeanor false imprisonment charge – reduced down from the three more serious charges he originally faced – rose to the level of official misconduct or why it warrants his removal, other than making general statements about ethics.

“We must always be held to the highest ethical and legal standards,” Lee said, adding that Mirkarimi had failed to do so. “I’m doing what’s in the best interests of the people of San Francisco.”

Time may tell whether that last statement is true, and whether the Ethics Commission and nine members of the Board of Supervisors agree and are willing remove a public official from office in San Francisco for just the third time in the last century.

Threats from mayor and neighbor in evolving Mirkarimi saga

Sasha Cuttler
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Threats from mayor and neighbor in evolving Mirkarimi saga

In Old West and pulp fiction stories, it’s usually the sheriff who tells a criminal that he has 24 hours to get out of town or else. But in the latest twist in an increasingly ugly San Francisco drama, that’s what Mayor Ed Lee reportedly told Sheriff Ross Mirkarimi yesterday afternoon, setting up a 5 pm showdown by which Lee told Mirkarimi to resign or face removal from office.

That’s just one of a few rapidly unfolding developments surrounding domestic violence allegations against Mirkarimi, who pleaded guilty to a reduced charge of false imprisonment and is now facing Lee’s threat of bringing official misconduct charges against him.

With the criminal case ending yesterday, Mirkarimi’s wife, Eliana Lopez, and her attorney Paula Canny called a press conference for noon today to finally tell the story of what happened on New Year’s Eve, when the couple fought and Lopez was left with a bruise on her arm, the next day telling neighbor Ivory Madison that Mirkarimi had inflicted it.

But Canny arrived without Lopez, telling the large pack of journalists that they were no longer free to talk because of a cease-and-desist letter and civil lawsuit threatened by Madison and her lawyer husband, Abraham Mertens, who wrote an op-ed in today’s Chronicle calling for Mirkarimi’s removal and accusing Mirkarimi, Lopez, and their lawyers of trying to “discredit, dissuade and harm my wife.”

“Events have risen so that Eliana Lopez is no longer willing to come speak,” Canny said, noting that she has had to get her own lawyer to defend against the accusations and legal threats from Mertens and Madison. 

[added from here at 3:30 pm] Canny repeated a previous claim that Lopez knew Madison had attended law school and was seeking legal help from her, making the videotape confidential under attorney-client privilege, a claim Mirkarimi’s judge rejected. “My client sought legal advice from someone she thought reasonably to be an attorney,” Canny said today, noting that only Lopez can lift the veil of confidentiality in such cases.  

Although Lopez didn’t cooperate with the prosecution of her husband, maintaining that she was not a victim of domestic violence, Canny reiterated that Lopez was willing to testify in court as to what really happened that night but that she wanted immunity from prosecution first. “She has always said she would testify under immunity, but the District Attorney’s Office refused to offer it,” Canny said today. 

Given that Mirkarimi faced a child endangerment charge because their two-year-old son, Theo, was present during the altercation, it’s conceivable that Lopez could also be charged with a crime. Sources close to Mirkarimi and Lopez told the Guardian that Lopez was prepared to say today that Mirkarimi was restraining rather than attacking her, something she was willing to discuss with reporters before these latest legal threats.

Canny noted that the media circus and threats made on the couple’s livelihood have been the most damaging part of a saga that she called “an amazing, horrible experience” and  “oppressive and unfair,” noting the irony of a prosecution that purported to be about helping victims of domestic violence.

“Has any of this helped Eliana Lopez? Has any of this helped Theo?” Canny said. “This is not about helping her.”

She said that neither Lee nor anyone from the Mayor’s Office have tried to contact Lopez. “If the mayor wants to call me, I’d say he’s not trying to make the world a better place,” Canny said.

Canny also had this message for Lee: “To the mayor, please respect the electoral process,” adding that Lopez also strongly wants Mirkarimi to remain in office and that “Eliana Lopez is not afraid of Ross. Eliana Lopez loves Ross…If people care about them at all, let Ross do his job.”

Canny also took issue with La Casa de las Madres and other domestic violence advocates that have pressured Lee to oust Mirkarimi and sought to capitalize on the case, even circulating Lopez’s name and image. “That’s not how crime victims are to be taken care of,” Canny said. 

Many political and legal observers say they’re surprised by Lee’s apparent decision to suspend Mirkarimi and bring official misconduct charges, saying it will be a complicated, distracting, and divisive process that is unlikely to result in Mirkarimi’s removal. They say the charges so clearly don’t rise to the level of official misconduct that even the Ethics Commission, where the hearing is held, may reject them. If Ethics recommends Mirkarimi’s removal, it was take nine of the 11 members of the Board of Supervisors to remove him.

Then again, these observers speculate that Lee may simply want to use the hearings to air the evidence and discredit Mirkarimi so that he’d be easy pickings for a recall campaign that could be launched this summer — in the process, potentially gaining a campaign issue to use against progressive supervisors facing reelection this fall. The Chronicle reported yesterday that the case has generated a bonanza of donations to La Casa de las Madres, which is planning to do Spanish-language billboards in the Mission District, where Sup. David Campos is now running for reelection.

Lee has not offered many substantial comments on why he may believe official misconduct charges are warranted, but he’s expected to do so as soon as this afternoon when he announces his decision on the Mirkarimi matter.

 

 

 

Freeing the information

Andrew Lam
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0
Freeing the information

news@sfbg.com

The Society of Professional Journalists, Northern California chapter, will honor champions of the First Amendment at the 27th annual James Madison Awards Banquet on Thursday, March 15, at the City Club of San Francisco.

William Bennett Turner, who has spent his career defending the First Amendment and civil rights, as well as 25 years teaching new generations of journalists and attorneys, is to receive this year’s Norwin Yoffie Award for Career Achievement from the Society of Professional Journalists, Northern California Chapter.

Turner heads a list of a dozen recipients of the James Madison Awards that SPJ NorCal presents annually to champions of the First Amendment and freedom of information.

In his legendary career, Turner has argued three cases before the U.S. Supreme Court, two on First Amendment rights, published more than 40 law review articles and taught First Amendment law at the University of California, Berkeley, for 25 years. He was instrumental in overhauling conditions in the Texas prison system and in 2011 he published the critically-acclaimed book, Figures of Speech: First Amendment Heroes and Villains.

The Yoffie award is named for one of the founders of SPJ NorCal’s Freedom of Information Committee, who as an editor and publisher of the then-family-owned Marin Independent-Journal was a vigorous advocate for transparency and accountability in the public-services sector. Other honorees are:

– Roger Woo, a teacher at Tokay High School in Lodi, California, has forged a strong reputation for quality teaching over decades of instruction. He has seen the work of his students recognized hundreds of times for stories, photos and layout. And in the words of a former student, now a newspaper publisher, Woo taught ethics, pride, and professionalism. Woo will be honored with the Beverly Kees Educator Award, named for a late, former SPJ NorCal president who was an educator and nationally recognized journalist.

– Attorney Cindy Cohn, legal director of the Electronic Frontier Foundation, will receive the Legal Counsel award for her litigation and oversight of countless significant First Amendment and open government cases. She is currently challenging the National Security Agency for alleged spying on the communications of Americans.

– Erin Siegal is being honored in the Author category for her investigation of human rights abuses in Guatemala’s adoption industry, as well as the U.S. government’s role, in which children have been stolen, sold, and offered as orphans to well-intentioned Western parents. Her book, Finding Fernanda, has received wide acclaim.

– The Hercules Patch, the local news site operated by America Online, receives the News Media award for its dogged tracking of the questionable financial management practices in the East Bay city of Hercules. Patch produced more than 13 investigative stories and 100 daily stories, and created 20 databases to follow the money.

– The San Francisco Chronicle, also will be honored in the News Media category for keeping a spotlight on the aftermath of the deadly PG&E natural gas line explosion and fire in San Bruno. The Chronicle’s persistence on the story kept readers abreast of the political fallout, the bureaucratic failings, and reform measures meant to prevent another such disaster.

– Tim Redmond, executive editor of The San Francisco Bay Guardian, receives the Professional Journalist award for his investigation of state agencies’ legally questionable acquisitions of a drug used for lethal injections that is no longer produced in the United States.

– Patrick Monette-Shaw, this year’s Advocacy award recipient, spent nearly two years following a crooked money trail to expose mishandling of millions of dollars at San Francisco’s Laguna Honda Hospital. The scandal he reported in the Westside Observer and his examiner.com articles led to an investigation of the city controller’s Whistleblower program.

– Susie Cagle, a cartoonist and journalist, has earned this year’s Cartoonist Award for her dedicated reporting on Occupy Oakland and for portraying the confrontation through her art. Additionally, she stood up for the rights of all journalists after being arrested at an Occupy Oakland rally that turned violent.

– Citireport.com, produced by Larry Bush, gets the accolade in the Community Media category for shining a bright light not only on San Francisco government but also on the city’s Byzantine political world. Bush, as editor and publisher, has spent nearly 30 years fighting to keep city government publicly accountable.

– Allen Grossman is the recipient of this year’s Citizen award for his efforts over the past several years to advance open government at San Francisco City Hall, whether by prodding the city’s Sunshine Ordinance Task Force to hold agencies and public officials accountable or by prying loose disclosable records that Ethics Commission staff aides wanted to withhold.

– The Bay Citizen, which put campaign finance data to good use, is to receive the Computer-Assisted Reporting award for its detailed political database on the San Francisco mayor’s race in 2011. The Bay Citizen made it easy to track contributions of every stripe. In addition, The Bay Citizen’s use of police records and public input has produced a highly interactive chart of bicycle accidents, letting riders pinpoint the most dangerous routes in the city.

The James Madison Freedom of Information Awards is named for the creative force behind the First Amendment and honors local journalists, organizations, public officials, and private citizens who have fought for public access to government meetings and records and promoted the public’s right to know and freedom of expression. Award winners are selected by SPJ NorCal’s Freedom of Information Committee.

JAMES MADISON AWARDS BANQUET

Thu/15 reception at 5:30 p.m., dinner and awards ceremony at 6:30 p.m., $50 SPJ members and students/$70 general admission

City Club of San Francisco

155 Sansome, SF

www.spjnorcal.org

Domestic violence is not a private matter

Andrew Lam
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EDITORIAL The legal case against Sheriff Ross Mirkarmi has been essentially settled, with the sheriff pleading guilty to false imprisonment and avoiding a trial on domestic violence charges, but the political case is just beginning.

Already, there are calls for Mirkarimi to step down. And Mayor Ed Lee announced March 12 that he’s Mirkarimi’s plea to “a very serious charge that had introduce a new set of legal issues” merits a thorough review.

That could lead to an explosive scenario where the Board of Supervisors, in an election year, would have to vote on whether to remove a sheriff who many of the supervisors have worked with and supported over allegations that are in effect political poison. Anyone who wasn’t ready to throw the sheriff out of office could be accused of coddling a wife-beater.

Mirkarimi’s friends and allies say the sheriff didn’t want to plead guilty to anything. But the questionnaires that potential jurors had filled out showed that virtually everyone who might sit in judgment had read the sensational media coverage of the case, and Judge Garrett Wong had refused to move the trial elsewhere. The judge also rejected every significant motion Mirkarimi’s attorney, Lidia Stiglich, made, and allowed into evidence material that the sheriff’s team didn’t think should be admissible. So the situation looked bleak, and Mirkarimi took a deal.

Mirkarimi maintains his innocence, and says he has no intention of stepping down. He agreed to plead guilty to a crime that had very little to do with what happened New Year’s Eve, when the District Attorney’s Office said he got into a physical altercation with his wife that left her with a bruise on her arm. False imprisonment was never one of the original charges; as is often the case in criminal cases, both sides accepted a less-serious charge in the name of getting the deal done.

Why Mayor Lee sees that as “a new set of legal issues” is baffling; the issues are exactly the same as they were before the plea bargain. None of this is to say that the original charges, backed up by well-publicized (although never fully examined in court) evidence, aren’t serious. Domestic violence, as we’ve said repeatedly, is not a private matter, is not a minor crime, and has far too often been ignored by the courts, police, and prosecutors, sometimes with deadly consequences.

But the way this could play out will open Lee to charges of political opportunism. The mayor would need to charge Mirkarimi with “official misconduct,” which is defined in the City Charter:

“Official misconduct means any wrongful behavior by a public officer in relation to the duties of his or her office, willful in its character, including any failure, refusal or neglect of an officer to perform any duty enjoined on him or her by law, or conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers and including any violation of a specific conflict of interest or governmental ethics law.”

Other than the “standard of decency” statute, which is pretty vague, there’s not much in there for Lee to go on. Unless you say that because Mirkarimi pleaded guilty to a crime with “imprisonment” in the name he’s somehow a threat to the inmates at the county jail, which is a huge stretch, it’s hard to call this “official misconduct.” (There is, on the other hand, the argument that Mirkarimi will be on probation, and thus part of the criminal justice system he oversees, and that it’s an inherent conflict of interest. That, however, would mean any sheriff who was on probation for anything would be ineligible to serve, which again is a stretch.)

If the mayor files official misconduct charges, and the Ethics Commission, by a supermajority, agrees, then the Board of Supervisors would serve in effect as a trial body, much as the U.S. Senate does in an impeachment case. Nine of the 11 supervisors would have to vote to permanently remove the sheriff from office.

If Lee takes that path, he’ll be setting in motion a political process that was designed in the Charter for highly unusual situations and has only been used once in the past 40 years. (And in that case, involving Airport Commission member Joe Mazzola, a court later ruled that the charges, involving his role in plumbers’ strike, didn’t rise to the standard of official misconduct.) You have to ask: Is this case, and this misdemeanor charge, worthy of the exercise of what is, by any standard, an extraordinary power vested in the city’s chief executive? Is it worth the political circus that would result from a trial by the supervisors (some of whom might well be asked to recuse themselves because of their prior relationships with Mirkarimi, making it almost impossible to reach the magic number of nine anyway)?

If the voters of San Francisco think the sheriff needs to go, there’s the right of recall — and it will be available the first week in July, when Mirkarimi will have served six months. If there’s not enough organized opposition to make that happen, he’ll be facing the electorate again in three years (and trust us, he will be opposed and every details of these charges will be part of the campaign). He’s going to pay for this far beyond his court-ordered probation and fine.

Whatever the plea deal, Mirkarimi was clearly involved in a bad conflict with his wife that turned physical. Unless the evidence we’ve seen so far is completely misleading, it’s clear that he left her with a bruise — and that he was at the very least nasty and more likely emotionally abusive to her. Now that the legal case is over, he needs to come clean and tell the public exactly what happened that day, at which point we can all decide if we believe him, if he’s shown that he’s changed, and if the public is willing to give him a chance at redemption.

But Lee should think very seriously before he escalates this by filing misconduct charges. Since the ones who have the most to lose from that are the progressives on the board who are often Lee’s foes, it will have the stench of political maneuvering — and at this point, nobody needs that. The mayor says he’s a unifier; this would be the most divisive thing he could do.

Campaign cash roundup and questions about our sleeping watchdog

Sasha Cuttler
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Campaign cash roundup and questions about our sleeping watchdog

Oliver Luby – the last true public-spirited employee at the Ethics Commission (a campaign lapdog when it should be a watchdog) before being forced out in 2010 – has written an insightful and comprehensive analysis of spending by candidates and outside groups during last year’s election. It’s published by CitiReport.

Among his findings are that the largely unregulated spending by supposedly independent third-party groups totaled $3.6 million, with $1.4 million of that going to support Mayor Ed Lee, and much of it coming so late in the race that voters weren’t able to factor its sources into their decisions.

Those outside groups spent almost as much to elect Lee as the campaign itself raised, which was almost $1.6 million. When those two figures are combined, and one subtracts the $419,891 in independent expenditure (IE) spending in opposition to Lee, the appointed mayor and his supporters spent $33.87 for each first place vote he received, or about 2.5-times that of second-place finisher John Avalos, whose $757,327 in “supportive financing” works out to $13.25 per vote.

Luby has long called for Ethics to get tougher on violators of campaign finance law, playing whistleblower at several key points in his career, starting in 2004 when he and then-staffer Kevin DeLiban exposed notorious campaign attorney Jim Sutton’s alleged scheme to illegally launder unregulated funds being collected for then-Mayor Gavin Newsom’s inauguration into paying off some of his $550,000 campaign debt.

In his latest piece, Luby again calls out his old bosses at Ethics for ignoring local laws against maxing out donations to many candidates in order to buy influence at City Hall. Donors are limited to an “overall contribution limit” that equals the maximum individual donation of $500 times the number of offices open, which was three in this election. It allows the city recoup from the campaigns money collected in excess of that, which Luby said totals $29,111 in this election.

“The SF Ethics Commission does not enforce this law. Supervisor Scott Wiener wants to help them get rid of it,” Luby wrote. Ethics Commission Executive Director John St. Croix was out of the office and hasn’t returned a Guardian call for comment.

Among those whose excessive contributions would be diverted to city coffers are Planning Commissioner Michael Antonini (perhaps the city’s most powerful Republican), PR powerhouse Sam Singer, medical marijuana activist Kevin Reed, political fundraiser Wade Randlett, city staffer-turned-developer Michael Cohen, moderate Democrat Mary Jung, and Coalition for Responsible Growth (a pro-development group) President Rodrigo Santo. Not surprisingly, they all contributed to Lee, whose campaign would be on the hook for the most in givebacks, $7,725, followed by David Chiu’s mayoral campaign at $4,700.

Finally, for all their talk about fiscal responsibility, Lee and his supporters couldn’t seem to live within their means in this election. Lee’s campaign finished about $275,000 in debt, while two of the pro-Lee IEs also finished in the red: SF Neighbor Alliance ($11,338) and Progress for All ($35,890), the ethically challenged creators of the “Run Ed Run” campaign that purported to talk Lee out of his pledge not to run for a full term in the office he’d been appointed to.

These are just some of the findings in Luby’s voluminous reporting, so check it.

Guardian editorial: Saving money on sunshine

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We hate to pick on Scott Wiener, who is a polite guy who always takes our calls and takes public policy seriously. He’s got an extensive legislative agenda — good for him — and he’s effective at getting bills passed. We’re with him on nightlife, and even on nudity towels in the Castro.

But he’s been taking on some more disturbing causes of late — he’s managed to tighten the rules for the use of Harvey Milk Plaza and now he’s asking for an audit of the Sunshine Ordinance Task Force that looks at how much each city department spends responding to sunshine requests. We’re not against audits nor government efficiency, but this could lead to a lot of mischief.

There are plenty of problems with the task force, which hears complaints against city agencies that are denying the public access to documents. The biggest problem is that the task force has no enforcement authority — when the members find an agency or official to have willfully defied the law, the best they can do is turn those findings over to the Ethics Commission, which simply drops the case. Nobody ever gets charged with anything or gets in any trouble for refusing to follow what every public official in town piously insists is an excellent law.

And yeah, the meetings run long, and sometimes city employees have to sit around for hours waiting for their cases to come up. (Activists who testify before city commissions are used to that, but city employees are on the clock, and Wiener’s worried that it’s running up a large bill.)

But nobody’s talking about the money that the city has saved by those annoying government watchdogs keeping an eye on public spending — through the use of the Sunshine Ordinance. Nor is anyone talking about the immense amount of time activists and journalists have to spend fighting over records that should have been public in the first place — or how much money the Task Force has saved the city by creating a forum for resolving these issues out of court.

We can see the outcome here: The audit will show some large number, some cash amount with a bunch of zeros behind it, and the Chronicle will run a big headline about the high cost of this sunshine bureaucracy — and someone will suggest we find ways to streamline the process by clipping the task force’s wings.

That’s the wrong approach — particularly when there’s a much easier answer. Why not do what sunshine activists have suggested for years — make electronic copies of every document created by any city agency and post them in a database on the web? No more secrecy, no more hassle. It’s easy — if anyone at City Hall is serious about saving money on sunshine requests.

Saving money on sunshine

Andrew Lam
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EDITORIAL We hate to pick on Scott Wiener, who is a polite guy who always takes our calls and takes public policy seriously. He’s got an extensive legislative agenda — good for him — and he’s effective at getting bills passed. We’re with him on nightlife, and even on nudity towels in the Castro.

But he’s been taking on some more disturbing causes of late — he’s managed to tighten the rules for the use of Harvey Milk Plaza and now he’s asking for an audit of the Sunshine Ordinance Task Force that looks at how much each city department spends responding to sunshine requests. We’re not against audits or government efficiency, but this could lead to a lot of mischief.

There are plenty of problems with the task force, which hears complaints against city agencies that are denying the public access to documents. The biggest problem is that the task force has no enforcement authority — when the members find an agency or official to have willfully defied the law, the best they can do is turn those findings over to the Ethics Commission, which simply drops the case. Nobody ever gets charged with anything or gets in any trouble for refusing to follow what every public official in town piously insists is an excellent law.

And yeah, the meetings run long, and sometimes city employees have to sit around for hours waiting for their cases to come up. (Activists who testify before city commissions are used to that, but city employees are on the clock, and Wiener’s worried that it’s running up a large bill.)

But nobody’s talking about the money that the city has saved by those annoying government watchdogs keeping an eye on public spending — through the use of the Sunshine Ordinance. Nor is anyone talking about the immense amount of time activists and journalists have to spend fighting over records that should have been public in the first place — or how much money the Task Force has saved the city by creating a forum for resolving these issues out of court.

We can see the outcome here: The audit will show some large number, some cash amount with a bunch of zeros behind it, and the Chronicle will run a big headline about the high cost of this sunshine bureaucracy — and someone will suggest we find ways to streamline the process by clipping the task force’s wings.

That’s the wrong approach — particularly when there’s a much easier answer. Why not do what sunshine activists have suggested for years — make electronic copies of every document created by any city agency and post them in a database on the web? No more secrecy, no more hassle. It’s easy — if anyone at City Hall is serious about saving money on sunshine requests.

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