San Francisco moves into uncharted waters

Story and photo by Thomas K. Pendergast

Last week San Francisco’s 11-member Board of Supervisors took The City through murky and uncharted waters, using a City Charter that is vague at the very point where guidance was needed the most.

While some of the daily news sources acknowledged this fact in passing, most media coverage was understandably about the more dramatic story of the county sheriff, Ross Mirkarimi, getting his job back after his suspension without pay.

The sheriff was suspended in March by Mayor Ed Lee, after Mirkarimi pled guilty to misdemeanor false imprisonment, related to a New Year’s Eve domestic violence incident when he grabbed his wife’s arm and left bruises on her.

A cell-phone video recording of the crying Venezuelan actress, Eliana Lopez, taken by her neighbor soon after the incident and made public a few days later, suddenly threatened to end the career of the Sheriff-elect even before he’d been sworn into office.

Lopez refused to testify against her husband and resisted his prosecution, yet a judge ordered them separated for seven months against her will.

Within a week of the new sheriff being sworn in, the SF district attorney had charged Mirkarimi with misdemeanor counts of domestic violence, child endangerment and dissuading a witness.

Mirkarimi later cut a deal that allowed him to plead to the single misdemeanor, and he was sentenced to a day in jail plus three years of probation.

Lee then took the unprecedented step of attempting to oust the sheriff, by filing seven counts against him related to the incident with the San Francisco Ethics Commission.

That body did not support the mayor on most counts but did on two of them. The commission said his plea and conviction of misdemeanor false imprisonment (count 4), was a breach of the conduct code required of the Sheriff. So the commission voted 4-1 in favor of Mirkarimi’s dismissal because of ‘official misconduct.’

For nine months this political drama unfolded before a citizenry that seemed both fascinated and repulsed, perhaps somewhat like watching one of the soap operas that had made Lopez famous back in Venezuela.

But decades from now, it’s likely scholars will remember this time in The City’s history not just for the political intrigue or even because of the domestic violence.

Instead, they might recall an obscure and unused section of the City Charter that suddenly became a critical point of public policy, as the board grappled with what they all knew would be an historic decision for The City.

It was historic because they could very well be defining the limits of power for Lee and all future San Francisco mayors.

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Lee needed nine votes from the Board of Supervisors to remove Mirkarimi — but came up two short.

In a 7-4 vote, the board handed the mayor a stunning defeat, as Supervisors John Avalos, David Campos, Jane Kim and Christina Olague voted to reinstate Mirkarimi.

The shot across Lee’s bow came early at the Board of Supervisors meeting, when that lone dissenting Ethics Committee voter, Chairman Benedict Y. Hur — go on and get it over with, yes, that’s Ben Hur — explained why he disagreed with everyone else on the committee he chaired.

It’s worth noting that the committee held nine hearings that covered five-and-a-half months, reviewed 37 legal briefs and objections to 17 declarations, along with 2,000 pages of reporters transcripts and they heard from five live witnesses.

Hur dutifully reported:

“They determined that the conduct at issue here fell below the standard of decency and good faith and right action required of all public officers. The majority did not find credible the Sheriff’s and Ms. Lopez’s accounts of the incident on Dec. 31, and found that the conduct relates to the duties of office because the Sheriff is the top law enforcement officer and also responsible for handling domestic violence programs within the county.”

Then he cut loose:

“I dissented on three grounds, principally two grounds. First that the law does not actually support the broad meaning of official misconduct that the majority propounded, and second that public policy suggests that we should interpret this provision more narrowly than proposed by the majority.”

Hur claims there should only be one standard of behavior for all public officials, not a separate standard just for the sheriff, as long the offending behavior was done under the authority of the sheriff’s office or in an official capacity:

 “In my view, the way you look at a standard is whether it relates to the duties, meaning is it done in performance of the duties of office or under color of law, in other words, is it actually done in your official capacity or are you at least purporting to do it in your official capacity?”

He further explained to the board:

“the voters wanted this to be clear and I think that clearly they intended for official misconduct to be different than some other type of misconduct, like personal misconduct. And the reason I dissented is because if you follow what the majority did, they did not provide a clear basis for how official misconduct and personal misconduct would be delineated and I think the ‘bright line rule’ was required here. … There must be a line between official misconduct and personal misconduct, and I could not find a principled way to make that distinction, based on the arguments suggested by the mayor and ultimately the decision made by the commission.”

Hur said an example of a “bright-line” rule was an automobile speed limit, where there was a clear and unambiguous standard.

But Deputy City Attorney Sherri Kaiser responded that there is no oath of office requirement in the Charter that says ‘official misconduct’ can only occur after and official is sworn in:

”The Sheriff argues that you can’t be a public officer until you’re sworn in. The mayor argues that you’re a public officer as soon as you’re elected. It makes no sense whatsoever to draw the line at the oath of office, rather than at the election.”

Board President David Chiu asked Kaiser if the standard is too vague and Kaiser said no, in fact, she elaborated, it’s not a good idea to have a ‘bright line’ rule here because the Charter language as written can apply to different offices with different duties:

“That doesn’t make it too vague to apply. To the contrary, it makes it a more nimble instrument that finds official misconduct where it exists and exempts misconduct as purely private and not official when the official duties aren’t implicated.”

Supervisor David Campos, an ally of Mirkarimi in the “progressive” wing of the board when the sheriff served there, jumped on Kaiser’s point when he explained why he would be voting to reinstate the sheriff:

“In the end what drives me to this conclusion is that I believe that there is a danger in some of the testimony that we saw. … I don’t know the difference between nimble and vague, in fact, legally I think they are the same.”

Supervisor John Avalos, another progressive ally, said the issue was about more than just domestic violence or whether the sheriff was acting under the color of authority, it was also about overturning the will of the voters:

“There are other considerations to weigh in, like whether Mayor Lee should have this kind of power.”

Avalos said in the end he had his doubts about whether Mirkarimi’s action amounted to ‘official misconduct’ and so:

“I will be voting accordingly.”

Perhaps the most surprising support for Mirkarimi came from the first supervisor to officially offer an opinion.

Christina Olague — appointed by Mayor Lee to replace Mirkarimi when he won the Sheriff’s office election — announced she would be voting against Lee, the man who gave her the job.

Then again, considering she is up for re-election next month in a district that overwhelmingly supports Mirkarimi, it might not really be all that surprising.

Olague said:

“The removal of any elected official from office requires that the mayor supply evidence that demonstrates with great certainty that the Charter-proscribed definition of official misconduct was violated. … The voters intended for this tool, this exceptional power of the mayor, to be useful and narrow. … It would set a dangerous precedent to enable any mayor with such power that he or she could turn a limited executive instrument into a discretionary political tactic. To apply the section of the Charter with broad interpretation would disregard the will of the voters and opens the door to allow the power of political machines to override the voice of the people.”

Supervisor Scott Weiner, on the other hand, rejected the notion that supporting the mayor’s interpretation of this section of the Charter would be giving Lee and all future mayors too much power:

 “I just think that ultimately this board makes its own decision and it’s not really about the mayor having these unprecedented powers.”

Mirkarimi only needed ‘no’ votes from three supervisors, but he picked up a fourth when Supervisor Jane Kim also chose a narrow definition of the Charter, while acknowledging the historical implications of her choice:

“We’re public policy makers. Tonight we can help interpret or define what’ official misconduct’ means. We need a clear definition. We are here for the first time to define this. … We need to take a narrow definition. It must be in direct relation to the performance of your duties. I wasn’t convinced (the Ethics Commission’s) counts four and five fit the definition of ‘official misconduct.’”

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After the board’s decision, a jubilant Mirkarimi said that in the end the system worked.

He also said he looked forward to mending fences with the mayor:

“We have work to do. We both need to rise above the politics and get the job done. … The next step in particular is mending fences and moving forward, and that’s exactly what I’m going to do.”

This might be easier said than done, as there is already talk about a recall election.

And what about the woman at the center of this controversy? What did she think of the board’s decision?

 “Finally, I feel that justice was done. … And I have a message for Mayor Lee: You have to be a bigger mayor because we have our sheriff back! Finally.”

Story and photo by Thomas K. Pendergast 

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