tv [untitled] August 25, 2012 8:00pm-8:30pm PDT
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credible. and the lack of credibility with regard to the gun is related to the same poor judgment and poor decision making that led him to take this deceitful action in the first place with regard to use guns. and the last reason why this all matters, we submitted and is in the transcript of this particular hearing where the judge explained that in a domestic violence case, especially involving the sheriff, things have to be done by the book and those weapons have to be with the police department, not the sheriff's department. the judge -- the court recognized it is the sheriff not doing things by the book. it is the sheriff's thinking the rules do not apply to him. it is the sheriff using his own staff to keep his guns out of
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the hands where they should be. whatever motive, it was an improper motive. he did it. can you remind me of what your other questions were? gregg's your brief mentions ms. lopez. -- >> your brief mentions ms. lopez. it also references a lot of other testimony that we heard. are you alleging official misconduct based on dissuasion by the sheriff toward any other individual? >> yes. the sheriff worked directly on ms. lopez. he coupled his pleas not to go to the police with threats regarding custody, and he got his campaign manager involved. this is all in an effort to try to get ms. lopez not to go to the police. that is ms. lopez. then the sheriff became aware of what's the ladies what we're
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doing on his behalf. ofwe spent so much time lookingt the records of what happened on territory for, how close to the other end of frequent the calls were, how were they interspersed with miss lopez's communications. it is inconceivable the sheriff did not know what was going on in did not act in response to what he had initiated. >> the argument he found out about it and told ms. madison that she should not go to the police, that something bad would happen to her if she does or that he will use the power of his office to prevent her from doing were going to the police or cropper in with her? to go regard to ms. lopez or hurt efforts? >> you conceded the sheriff did not talk to miss maddison.
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ñiin the two people that did are ms. haines and ms. lopez. are you alleging that she should come as madison not to talk to the police because the sheriff would use his power the basis of the latter effort on did report where miss lopez was officially turned and started to work on the other witnesses was that the share of new about it and did not do anything. he should have responded to the efforts that his wife and ms. haines for making. -- were making.
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>> you were saying he should then something but did not do. what should he have done with respect to this madisms. madiso? >> he should have at least try to persuade his wife to not call her and persuade her. he actually did the opposite. >> i am giving an example of the path he should have taken. take of the fact that he did not do that, my view is the evidence does not show he did that, but you think we should find that he committed official can dog -- misconduct because he did not convince his wife to stop telling miss madison not to call the police. >> that is one of the things. there was a text message he sent to his wife for he told her you have to reject ivory's actions. we both do.
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that is encouraging his wife. that is actually taking duty. i still8qd think he had a duty o do something, but we an action of him encouraging his wife to do that. we also have his knowledge it is happening. another thing he could have done is called of miss madison to say i understand there is a police investigation, my wife may have said something about market -- not talking to them. you should cooperate because i have nothing to hide. that should of been the ideal thing to do, because after all that was the object of the witness persuasion efforts. >> anyone else you are alleging he persuaded from going to the police or cooperating? >> i think he is wrapped up with ms. maddison, but no. >> do you think he had an affirmative duty to tell his like that you should cooperate
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with the investigation? >> to tell her to cooperate? no, i think his duty was about having her not go to try to interfere with the investigation with regard to other witnesses. she can do what ever it is that she wants. -- i think i misunderstood the question. early on he did make those efforts. >> i am sorry to interrupt you. i appreciate the public is invested in this, but it is very important that you not have outburst, any comments or noises. i am instructing the sheriff's office right now to please, without me interrupting, if you see someone making noise, please remove them from the room. thank you. to go with regard to his wife, -- >> with regard to his wife, he had an affirmative duty to nott( pressure her to go to the place and not make friends, unless his campaign manager had
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an effort to persuade her. i do not think he had a duty to tell his wife i committed a crime, go to the police. he did not have a duty to do that, but that is not what happened here, so we do not have to deal with that. he took an ax to prevent his wife from going to the police. -- took acts to prevent his wife from going to the police. >> thank you. your time is up. >> good morning, commissioners. i want to begin by thanking you
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to the city and service of san francisco for this proceeding. this has taken an extensive amount of time on everyone's part, and i want to thank you on behalf of myself, the sheriff, and miss lopez for your careful consideration of the evidence and a lot in this case. this morning, before closing argument, i will spend a few minutes talking to you about discretion. that i will turn it over to mr. kop who will discuss official misconduct and the facts as it relates to official misconduct. >> before you start, can i make a comment as someone who was tried cases for a lot of years and appear before a lot of judges, you did not do your client any favor by starting off your brief by saying at the end of an unnecessary protective dog and pony show. is that what you consider these proceedings to be? >> respectfully, no.
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>> you understand, we are mandated once the mayor took action, we have no choice whether or not to have such a hearing, and counsel for the sheriff and the mayor got together and said how they wanted it to be conducted. >> with all due respect, i apologize for the use of the phrase. it certainly was not meant to describe your consideration and what the commission has been doing under the obligation of the city charter. that was solely meant to describe the mayor's presentation of evidence, which we have felt from the outset was not called for in any stretch, either under official misconduct or was a reasonable exercise in the mayor's discretion.
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the test for bigness is whether or not the statute at issue, in this case 15.1 05 has sufficient definite miss that ordinary people could understand what conduct is prohibited. that is number one. the second prong, because the manner or language of the statute anchorage arbitrary and preliminary enforcement. under both of those, can we understand what conduct is prohibited, and does it lead itself to arbitrary and discriminatory enforcement? under both of those, we would say that 15. 10105 is vague. how do we tell it the application of an this is
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enforcement? we look of the context and consistency. how work other examples of alleged wrongdoing dealt with by the mayor, the city, and other enforcement bodies? was the mayor's suspension arbitrary? was a discriminatory? was it consistent with how this mayor has treated other cases of alleged wrongdoing by city officials? was it consistent with how other mayors have handled similar cases? i respectfully submit to you that it was not consistent with how this mayor has dealt with other cases of alleged wrongdoing and not consistent with how the city, how other mayors have dealt with cases of alleged wrongdoing by elected officials. this was only the third time in the history of san francisco that a sitting mayor has suspended an elected official for alleged official misconduct. the first time was in 1932. he suspended the public defender for murder.
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mr. begin went on to spend 25 years in federal prison. the second time was in 2007. the mayor suspended the supervisor for perjury and extortion, both felonies. he is in prison today. the third time is in the present case. merely suspended share of mirkarimi -- maylor lee suspended sheriff mirkarimi. he spent no time in jail. he was cited and released. you have three very serious felonies involving very serious prison time, and in this case a low-level misdemeanor and no jail time or prison time. the facts could not be more different. it is very inconsistent to how other mayors have dealt with alleged official misconduct. >> mr. wagner, and those other
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cases you are referring to, it's a day off -- and called the sheriff himself or herself? >> no, the first case was a public defender and then a public supervisor. >> do you agree with me that our job here is a two-step job, and that his first to determine whether or not there was misconduct that reaches a level of official misconduct under the definition, and if we say yes, there was, we still have the question of, did the mayor exercise his discretion and reasonable manner? >> yes, i absolutely agree with that process. as to whether or not the mayor's decision to disband was a reasonable exercise of his discretion, you heard from opposing counsel, and it is absolutely true, there are
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instances where the mayor must suspend. it is not discretionary. if a person is convicted of a felony crime, and if this commission then determines that that is a crime that warrant removal, then the mayor must remove from office. that tells us right away there may be felony crimes involving moral turpitude that would not warrant removal from office. however, i agree with the mayor that it is a discretionary decision, and when the mayor came before you and testified before you, he was asked directly, are there other crimes that might warrant suspension? for example, a dui. the mayor said i do not know. i have not thought about it. if he does not know what of their crimes, misdemeanors would warrant removal from office because they would constitute alleged official misconduct, then how can any official be on
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notice? if the mayor does not even know what other misdemeanors would constitute -- warrant removal, that would warrant suspension. how can anyone be on notice? >> council, in determining whether or not the mayor exercised his discretion in a reasonable manner, can the mayor and for this commission take into account what the elected official did between the time that the alleged misconduct occurred from the time he is suspended from office? >> can the commission take into account the suspending authorities conduct? lpor the removed official -- >> in other words, let's assume
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in the case of public official, it's an act that would constitute official misconduct, and between the time he commit the act or she commits an act and when the mayor exercises his discretion, can he take into account what happened in between in regard to that public officials conduct relating to the investigation for example? >> i believe the mayor can take into account. he or she can exercise discretion. the question is, is the discretion reasonable? the mayor can take into account any kind of conduct. the question is, was it reasonable or is it reasonable to suspend an elected official for the alleged misconduct? whether it was that misconduct that occurred in one point in time or how the accused official
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dealt with that afterwards. >> i would appreciate your explaining what you think our role and what the ethics committee responsibility is. some of what i am hearing sounds like this palawan's -- belongs in a court of certain circumstances took place and our job is to make a recommendation. >> thank you, commissioner. i agree that question is a very important one. in fact, you probably know we went to superior court prior to the commission process getting started and make the very argument that 15 point.105 is v. the judge of the times said let the process play out and the judge said let it play out in if you did not like the result, come back and see me basically
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and let the ethics commission decide whether or not it is fake or the other merits of the case. as to your recommendation and your responsibility under the charter, i would respectfully submit that if you do find 15.105 is big, you cannot make a recommendation for removal. i do not see how you could do that if you find a lot itself is unconstitutional. >> well this will be subject to our discussion, i did not think determining constitutionality is what i signed on for as a commissioner, and i do not think we have that authority. i think we have the authority to do something, and whether we can or cannot make a to whether it is fake. -- is vague. so i would really like to know
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what you think we do today that is related to the vagueness consideration or whether you are alerting us to an argument you made. take the>> well, the charter res the commission to make a recommendation. it does not say which laws you may consider that substantiates or is the basis of recommendation. i would respectfully subject that the commission can take into account its own interpretation of what the lot is, and the facts are to make its recommendation to the board. if that does not involve a finding for conclusion of all as
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to 15.105 that is certainly with the commission's purview. i believe if wanted to make such a finding or conclusion of all, that would also be in your purview. i would like to move on and wind up here and then turn it over. a few other facts that we know of. i talked about the inconsistency in terms of san francisco history. i would like to talk for a moment about the inconsistency of how the mayor has filled with other alleged wrongdoing. the current department of public works head was found to a committed by the city attorney's office to have committed many acts of wrongdoing. the mayor did not suspend, did not remove from office, but rather promoted the individual.
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against the strenuous objections of city attorney. >> is this anything we have in evidence? >> i submitted it with the brief. there is the memo. i do not have the date in front of me. beyond that, last year this very commission recommended -- >> i am sorry to interrupt. that was submitted as an attachment to an earlier brief. it has not been submitted before the committee. in my view, the relevance of what you're talking about is similar that it is not in evidence. this is mostly illegal, so i would be permitted to allow mr.
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wagner to proceed. if there are objections from my fellow commissioners, perhaps we should discuss. >> i can withdraw the comment. the point holds that this mayor has treated this case differently than he has treated other cases. beyond that one other fact show he used his discretion? the fax kept changing. he said he was suspended the mayor for a plea to misdemeanor 236. then use it was the plea plus domestic violence, plus maybe witness persuasion. maybe there might have been witness persuasion. the amended charges through in the gun allegations as well. the mayor testified he'd talk to ivory madison but never talk to miss lopez, even after in courage to do so by the sheriff and former mayor.
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the mayor admitted he suspended first and ask questions later. he submitted a declaration that was designed to poison the well. finally, at the very last hearing week requested subpoenas regarding whether the testimony was truthful. all of those facts, the charges changed come to the mayor talked to, when he talked to them, the fact that he never talked to ms. lopez. the questions about his credibility and trachoma's goes to whether he reasonably exercised his discretion. i respect -- respectfully submit to you he did not. at that, i would like to turn it over to address the definition of official misconduct. >> thank you. >> good morning commissioners.
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i want to start off by addressing the point that you raised about the comment about the dog and pony show. that was not intended to affect on anything you or the other commissioners have done. in fact, we appreciate the effort you have made. we've viewed this by the mayor. if it offended anyone, we apologize for that. it is our view and as strongly held view. we have objected to much of the evidence they have wanted to put before you, because we do not think it bears and relationship to what your task is here. that is the explanation for that line. >> i would say the remark struck me to being a kid by the statement made by your client that this is a private matter. a certainú.
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>> i want to strike the record and make it clear we understand and appreciate the commission must carry out its duty under the charter. i do want to discuss what we think the meaning is of official misconduct, and that leads me to discuss the case that link. one of the things about rizola is at that time in 1976, there is no doubt in my mind that the mayor and members of the board of supervisors were intelligent, conscientious public service and took their jobs seriously. i do not think anyone took it lightly, and yet they got it wrong. mr. mazola was able to clear his
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name several years later when the court of appeals reversed. he was already out. that points out the perils of making a recommendation for removal and the board voting to remove, because this is are rarely-brought proceeding and a proceeding that can have the effect of contravening the will of the electorate. we see this type of proceeding and the law that governs it as completely different from many of the cases that have been cited to you by the mayor and his attorneys, some of which are from other jurisdictions. some of which are from other procedural settings. there is a major difference between cases that discuss termination of hired employees and the situation here, which is the attempted removal of an elected official.
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>> is it your view an elected official should not be subject to the same standards that an employee should be subject to was in a similar position? the people who work under the sheriff would be subject to the employment standards that some of these cases discussed. why should the sheriff not be subject? >> i just do not think you can import principles of law from other cases that deal with administrative discipline of the employees. i do not see this as an administrative hearing. >> what is the legal or logical reason? >> i think you can look to them. you could consult them, but i do not think they should be the primary authority. our contention has always been the primary authority is the rizol mizola case.
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now, we recognize that at least one commissioner has expressed the view that maybe it does not apply because the chartered definition changed since this case was decided. but, the current definition of official misconduct under the charter draws almost entirely from the language used in the opinion. the two points that are most critical about that opinion from our perspective our number one that the official misconduct has to occur while the official is in office. much of what the mayor has alleged occurred before the sheriff was sworn in. they have presented you with a parade of horribles about why this cannot be the correct interpretation. they have said if an elected official is elected and then at
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roms bankbs banks, we cannot hat situation. that cannot be the definition of the charter. there has to be a way to address pre-swearing in testimony. sorry, not pre-swearing in testimony. pre-appearing in contact. the charter is an imperfect document. i would like to make the points that there is no removal provision for the mayor. if the mayor is elected and before he is sworn in and decides to go rob banks, there is nothing in the charter that will allow him to be removed for official misconduct. w3the chartézan be amended. they want to apply this pre-
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