identify it be stricken. it stays in the record but my rebuttal evidence is excluded, a different decision maker could come to a different conclusion. >> i think you -- did you object to it at the time? >> no. >> then, it is in. any dissenting views for my fellow commissioners as to what 58 -158 t-- to 158 to 159. >> thank you. i think that is right. a -- i definitely will come --

welcome being corrected. if there are others i have missed. >> i believe the apology to miss madison in court is already in. that is in paragraph 161. and 162 is also already in as an exhibit. 163 is the same. >> 1/5 -- 164 is the basis for [inaudible]

>> ok. so we have got -- you have identified once see one, 162, 163, -- 161, 162, 163. yes, and went 59, i do not know if we have already -- were down with that. -- 159, i do not know if we have already -- were done with that. 160 is out and i regard to 164 is out. i'm not trying to strike mila testimony here. i am trying to keep track. >> if there are others where you find -- there are others as you

are going through them where you feel we have relied on the testimony. i think we should reconsider that. >> 166 is prior inconsistent statement. it is inconsistent with sheriff mirkarimi's testimony that he was seeking couples counseling. >> i would be inclined to exclude that. i think using an expert as rebuttal testimony, i do not think is going to be helpful to us. >> it seems to me that the commission is concerned about the opinion being based on admissible evidence. and that is admissible evidence because it is a prior inconsistent statement. none of the expert's opinion is being offered as fact evidence.

it is offered as an opinion about the situation based on the indicators that the expert consider reliable. this is not being offered for -- as factual evidence. it is being offered as the basis of an opinion and it is the basis of an opinion that is found in our admissible evidence in this proceeding. >> is the march 19 press conference in evidence? ms. kaiser. >> that is a good question. you are talking about 164 and 165? my understanding is that it is not. >> you cross-examined him, did you use it with him? >> i think not.

either any there paragraphs where she is lying on admitted evidence. >> the main 164 and 165 or are you speaking about 166 fax >> 166, too. is there a dissenting view. >> paragraph 184. relies on sheriff mirkarimi's decorations. >> good point. that should be in. ok, if that was confusing -- i know that was confusing.

i figured when you said 184 and 184 is the last paragraph, that meant that you had covered all of them. >> he was doing 52 through 180. >> we're confused. >> -- through 180 and i was giving ahead to 84. >> the range is at 1 feet. we're half at the range. my understanding was she said 152 to 180. >> we're at 158 to 184. there were interim ones that we admitted.

159, strike 162 when a three- 184, ok. you had an objection to appoint seven on page 3. >> i accepted it. that should go out. six. >> and relevance, i do not think i can expand further than enough. -- further than i have. >> i cannot expand further on that point either but i did want

to make clear for the record that the fact that we agreed she removed some parts of the declaration does not mean we did not agree. we were trying to implement the commission. tixla ehud -- to the extension that you [unintelligible] that it was irrelevant or unfounded. >> ok. does the commission had a view as tubal 0.6 -- a bullet point six? >> that is the opinion about the uninformed batterer, i do not think it is relevant to what we have some new. i would be inclined to exclude it. >> i would agree. did any of the commissioners --

there are a number of parikh grubbs i reviewed and thought were relevant and should be in. i get -- identified the ones i thought were not. did the others have passe[inaud] ok. we will isue our [inaudible] we are moving pretty quickly through a fairly large amount of text. i would like the ability to bring something to the commission. attention basin that he says, based on whether there was something in evidence the defense fought -- i did not spot. i you are doing with the share of's retest -- sheriff;s request

for a dr =t y ceremony. que>> the request for impeachmet testimony? >> i hope i communicated our concerns in the written rest. if we were not the chance -- the mayor did not testify truthfully under oath. there is going to be a cloud, for black and there -- lack of a better term. the mayor has stated his belief under oath that he has a civic duty to do this and he is doing

this for no other purpose. if that is the case, there should be no need for false testimony. if there was, that raises a big question in my view about what are the true motivations behind the ringing of these official charges of misconduct? i do not think it is -- solves the problem to say, this is impeachment on a collateral issue. the mayor has said on numerous occasions he is doing this because he thinks it's the right thing to do and that we have these high standards of official misconduct and the sheriff has fallen below that. everyone could agree that testifying truthfully under oath is -- that is what we expect a public officials and if you do not do that, those falls behind those standards. if the mail -- if the mayor felt, we ought to able to show

that. >> ms. kaiser. >> i think this is an invitation to a side show. i think you have noticed that one of the sheriff's defense is has been pointing fingers at the mayor. if you look at it, that maybe a good strategy with the public but is a legal matter. it does not matter what the mayor's motivations were. the turner cares whether or not the official committed official misconduct. the charging authority is the mayor. the way to test the allegations that -- is with this hearing. it is with thitheir witnesses ad the charter does not care if the mayor's best friends are bitter enemies with the person charged

and it does not matter whether or not deterred the official was dishonest -- charging official was dishonest in some way because of the test of the truth is that -- the test of the truth is this hearing. the reason that mariposa testimony was relevant is because it should -- showed his to rotation and of what official misconduct met under the charter. whether he did it truthfully or falsely, that is up for you to determine at this hearing. not bring in experts. i would be doing my kids to service and i did not tell you straight out i believe if we had this hearing, it would be quite

apparent that the mayor did test, -- testified truthfully. we only have a war of media articles and the only people saying they mayor trusted on tressler are the people had no knowledge. people with knowledge confirm what the mayor testified to. this will be a huge waste of time. mr. within the commission's discretion to conduct this further mini-trial. >> questions? >> a common but not a question. my view on this one is that the very purpose of the ethics commission -- our role here is to take and why the voters greeted this multi step process

is to take this out of the realm of motivation and politics and put the five of us -- to interpose a spy entities that are by their nature political. i did not need to hear anything from the mayor. it is before us as i mentioned to the public when they said why don't we just drop this, your wasting time and money. the voters said we need to do this. the reason we have to do this is for the reasons you have just heard. so that we can independently, regardless of how it got here, make the determinations that the bill the record and make a recommendation and it goes through another political body with an extremely high standard just because the voters were looking for us to be a bridge, a separation, as independent as they can find body to do this.

i do not think we need to inquire into any of that. >> i agree with you. i want to say one thing. i consider very seriously any allegation that someone came before us and did not testify truthfully. this does not work unless we have truthful testimony by people who are sworn under penalty of perjury. i'm not diminishing the seriousness of a perjury allegation. the other thing is that the ethics commission could not adjudicate perjury. that is a matter for the da, it is a criminal action and not something we can decide. what is relevant to us is whether or not the testimony would help us decide whether official misconduct occurred. in my view, the issue is tioo

collateral for it to merit additional testimony. our efforts to get a record that is complete, but also is as free as possible from issues that really are not material to our determination of official misconduct. vice-chairperson studley: i appreciate that we said. i did not mean to minimize any of that. so i appreciate your saying that and i agree. >> and want to -- to not want to cut off any of the commissioners. i would appreciate it if the d.a. was not out there saying i will but the ethics commission do with it. i read the papers and i saw what he said. i agree with you that you could not make a finding that a

criminal offense occurred, true, but you could make a factual determination of whether or not the witness testified falsely under oath in my view, that ought to impact your decisions. >> had you objected to the mariposa declaration, i would have been inclined to sustain it. he testified because he put in a declaration, you agreed to cross-examine him. maybe -- may have been effective. just because he testified about it does not mean in this material to our decision about whether your conduct -- client committed official misconduct. >> the reason i disagree with that opinion is, the mayor is the prosecutor here. he is the chief accuser. in any other context, in a criminal context, when the accuser is biased, when the

person bringing the charges, the d.a., city attorney, an attorney general, if they are biased, that buys can be elicited and they can be recused from further prosecution. we do not have the remedy here. our remedy is to try to expose it if it exists and there is no other way for us to do this. >> i understand your position. i do not think that even if it is shown that he was -- even if your proffer is correct, i am finding it hard to determine, how to see how that would be something material to our decision about official misconduct but i hear your argument. any questions or further comment? commissioner liu: i do recognize that determining credibility is paramount and fundamental to this contested

evidence gerry proceeding but i recognize another principle is that impeachment should not be allowed when it is aimed at discrediting testimony that is just not material to what we have to decide. and so, i'm having a hard time seeing how either issue, whether the mayor asked a supervisor her opinion of how he should handle sheriff mirkarimi's position or no. 2, the issue of whether the mayor authorized offering a lower ranking position. i have a hard time seeing how either of these issues tend to prove or disprove what the sheriff engaged in acts on december 31 that would price to the level of official misconduct. i am inclined to agree with my colleagues and commissioner

studley in following official -- additional testimony. >> i do not know if you want a response or not. i could respond if you want a response. >> i will leave it to you. commissioner liu: no. not really. commissioner renne: i went back into the look at the transcript, portions of the transcript where the question, the question that were at issue were raised, and there were objections to the admissibility as being immaterial. i think we may have been too lax in letting it come in. i share the view that has been expressed here that, regardless of what the answer would be and

to the testimony you want to put in, i am sure it will not be clear cut one way or the other based upon the stories that appear in the newspaper. denials and -- it will not be clear cut but even if we did, it has nothing to do with whether or not there was a violation which constitutes official misconduct. it has nothing to do with that. it is a totally separate matter and if you like to pursue it someplace else, fine. >> i would respectfully disagree. this is why. the mayor has argued that his suspension of the sheriff was discretionary. it was an exercise of his discretion. respectfully, the phrase rise to

the level of official misconduct implies that there is a definition of what official misconduct is or is not. that is not the case and the mayor has conceded it is a discretionary decision. there is no real definition. conduct that falls below a standard of decency, good faith, and action. determining what fits into this parameter is is a discretionary decision. the mayor's discretion is at issue. you have to decide, did the mayor exercise his discretion in a reasonable manner when he suspended the sheriff? is the mairs idea of what he thinks is official misconduct, is that reasonable? did he exercise his discretion reasonably? his credibility, his truthfulness go to whether or not he exercised his discretion in a reasonable manner. and if the shoe were on the

other foot, if the mayor had alleged that the sheriff was not truthful, as he has, they brought forward the transcripts and he allowed that in. allowed many other kinds of impeachment evidence in against the sheriff. now, there's an cragle evidence that the mayor was not truthful as to who he talked to about the suspension, about the official misconduct, all that goes to his discretion. the claim that contrary to ms. kaiser's claim that it does not matter whether or not the mayor perjured himself, of course it matters to her determination. whether anyone has come before you. you find official misconduct or making the recommendation. again, it is about the mayor's exercise as to his discretion

and whether or not he was truthful. he is the charging official. if the charging official lies under oath, what does that say about this entire proceeding and you determined that we did not care. the definition is so broad, what can rise to level of official misconduct? what rises below it? >> we need to determine that. i agree that it is confusing. with respect to the sheriff, the sheriff and the mayor in -- are in different positions. testimony is relevant to whether or not official misconduct occurred. we're talking about vastly different types of testimony. the way to give to the sheriff's

testimony and the effort to impeach is much more critical to what ever the mayor had to say. even if the mayor had the worst motives to bring this before the sheriff, if the conduct does rise to let all, official misconduct, i think we're obligated under the charter to find official misconduct occurred. if he had the purest of motives but the conduct does not rise to the level of official misconduct, it is irrelevant as to whether he thought you was doing the right thing. >> i do not understand how you can determine that without some to -- parameters. >> i was with you up to the park when is it would be a hard decision. but the mayor.

the individual view, not a legal deal that will be put before us by the attorney who stand in the prosecutorial world, their view this matter as is yours. we're not here to evaluate the exercise of discretion. i disagree with you completely. we are here to find a specific question about whether this is an official misconduct. that is not an easy question, i wish it were. the mayor's motivation for bringing this charge is not on my mind and do not think will be part our determination. >> is it then and relevant whether or not the mayor lied under oath? >> that is a separate question from the facts that we have to find about whether there was an official misconduct. >> i addressed that at the beginning. we take seriously any allegation there was -- >> why we do not hear from witnesses testimony as to that

issue. if you're taking it seriously, why not hear from witnesses who could shed light on that. >> we have addressed this several times. i do not think we need to address it again. i comments from the commissioners on this issue? -- are their comments from the commissioners on this issue? the impeachment testimony is denied. the last thing we need to talk about is what the commission needs in advance of august 16 so that we can make a recommendation to the board on that day. one thing i think would be very helpful is a document that is finding the facts. here's my idea.

i welcome input from everybody on this. the sheriff has identified the pair grabs that he disputes. that is paragraphs six through eight of the charges, 1924, 26, and 30. that was -- joye have that correctly? -- do i have that correctly? >> 19 through 24, 26, and 30. all the other paragraphs are