>> i would agree with that. i think the testimony was inconclusive and actually pretty confusing on that point. there was some testimony about whether he was supposed to turn it over to his attorneys and who was present when that conversation -- when that conversation took place. at the end of the day, the attorneys are correct that the mayor testified that he did not think that, in and of itself, could sustain a charge of official misconduct. >> i agree with your result and i also agree with your comment about a way of acting that i find it uncomfortable. i had not thought about childish, but that applies. putting members of the staff of

the sheriff's department into the position that the share of did while he was their supervisor, to return the guns to the share of department staff and expect them to hold on to them and not give them to the police department, and the inconsistent instructions we heard in testimony is insensitive to the dilemma that he puts his line officers in. i think that was troubling. but this is not -- we are not here judging people's judgment, although i think it was poor judgment. ñichairperson hur: the last factual issue that i think could sustain a charge of official misconduct is the effort -- the failure to support and encourage potential victims and witnesses to the domestic violence.

i think the standard here for official misconduct with respect to these allegations1 i think the mayor has, in some ways, conceded that the failure caused -- clause requires that the officer fails to perform a duty conjoined to him by law. i do not think that the sheriff was required by law to make public statements supporting ivory madison. he was, at that point, a criminal defendant. i am not comfortable with suggesting there is some duty that a criminal defendant needs to go out and make public statements supporting someone who is a witness in a criminal matter against them. even aside from the criminal matter, i think it is a dangerous precedent to say that

an elected official can be held to have committed official misconduct by failing to support individuals who are, at least from his perspective, attacking him. i do not think that this course of conduct where he failed to encourage and support victims and witnesses can sustain a charge of official misconduct. i welcome the views of my fellow commissioners. >> i think i would agree with that, particularly with respect to himself being the criminal defendant at that point in the process. i do not know that we would require, that the law would require him to encourage witnesses to come forward against himself in the criminal process where he is the defendant.

i think that would be an awkward president to set. -- precedent to set. >> i agree that it is a higher bar and that an individual has a right to mount a defense. that said, this element was not explored as early as some others. -- as thoroughly as some others. what i'm wondering is how much more aggressive public campaign of criticism was doing so at the direction of the indication of the "i cannot do it, but would you do it" guidance of the sheriff. it was not a pretty picture, but

it has led the public to see this in a much more political and aggressive light. then it would have been had commentary about witnesses not taken place. the press has its own attraction to certain stories that you cannot lay at the feet of any of the participants either. but i do not see the steps to the -- to be able to support it rising to the level of either a failure to perform a duty and joined on the sheriff or falling beneath the standard of decency of faith and right actions required by a public officer, particularly when that person is defending criminal charges. chairperson hur: i appreciate your emphasis on the second clause. it could conceivably fall under that. i agree with your points and i

want to echo something that you just said which concern me when i heard the sheriff testified. -- testify. these are really disturbing allegations. the sheriff makes an apology to ms. madison in his plea statement and cannot explain what he is apologizing for. these are the sorts of things that make clear to me that the conduct was for. -- poor. i do not think it amounts to official misconduct, but i do not want there to be any illusion to my view about whether it was appropriate conduct or not from what i would expect from an elected official. but i do not think it rises to official misconduct. >> you are talking about this item only? >> yes. any other views with respect to

the factual allegations? of course, the parties submitted a joint statement which was somewhat helpful in us trying to determine what facts we really need to find and discuss here. we have addressed, i think, the most salient ones. there are a couple that we may want to address just so that we can ensure that we have established the predicate for our discussion of the law and the application of the law to the facts. i think it is undisputed that the share of -- sheriff was elected on november 8, 2011, and that he was sworn in on january

8, 2012. i also think that there is -- it was proven by a preponderance of the evidence that he did engaged in actions at the sheriff's office that he was getting up to speed on what his duties would be in the interim between november 8 and january 8. i also think that it was established by a preponderance of the evidence that he pled guilty to false imprisonment. >> since you are going through it, was their agreement -- he continued to serve as supervisor until he was sworn in or until the end of the year? what was the transition? was he in office as the

supervisor was that not addressed as the party? chairperson hur: i do not remember the testimony about when he finished his duty as sheriff. do you recall the testimony? >> there was a documentary of it submitted showing the letter of resignation that was concurrent with his becoming sheriff. >> so he held public office on december 31. chairperson hur: that is an important fact that also was not established. >> it looks like it is undisputed between the parties on that point. chairperson hur: the parties apparently disagree as to whether the share of restrained ms. lopez and violated her

personal liberty in paragraph five. i think that was established. any disagreement regarding that? >> i think that was well- established by the sheriff's testimony and by his guilty plea. chairperson hur: we then invited the parties to submit additional findings of facts and gave each of them 5. i did not find any of them relevant to our determination. but if any of my fellow commissioners would think that any of them should be discussed or addressed, i welcome that.

you know what? i want to say one other thing -- i take that back. fact 12, which was identified by the mayor, i think is relevant and it is one that we addressed, relating to the gun charges. i think the remaining -- for example, 13 a conclusion. 14, to the extent that it has not been discussed, i think is irrelevant.

>> i am looking at no. 9. i say that because it relates somewhat to the issue in 14. no. 9, indicating that the -- that it was a private matter and denying ever being verbally or physically abusive are troubling to me in light of the later admissions or later plea. and the testimony here. chairperson hur: let's talk about that. both you and commissioner renne have raised the course of conduct after the arrest. are you of the view that statements that were made that are reflected in paragraph 9 and

paragraph 14 have been proven by a preponderance of the evidence? have they been proven and do you think that they are relevant to our determination? commissioner renne: as to whether he made that statement? chairperson hur: yes. commissioner renne: that it was a private matter? chairperson hur: iraq 9 and 14. -- paragraph 9 and 14. commissioner renne: i understand that he was not denying it. the response that he gives was that the surest private family matter was in a statement given to him by his attorney. still his statement. he is not disputing that he made the statement.

maybe he got bad legal advice. chairperson hur: any dissenting view towards that? i am not asking about the bad legal advice, at, just in general. -- bad legal advice comment, just in general. in my view, 9 and 14, to the extent that they are factual, some of them are not, i think that the mayor did establish that the share of made a joke about -- sheriff made a joke about the press conference -- the press coverage he was receiving at his inauguration. i personally did not think that that was a joke about domestic violence. ultimately, i do not think it

matters. i do not think any of these allegations, whether proven or not, could sustain a charge of official misconduct. but a curtain -- i certainly could see if someone thought the joke was about domestic violence. i do not think it is outside the realm of possibility. i just did not think that was what he was saying. >> i did not feel like it was a joke about domestic violence, per se. it was a humorous reference to his personal situation, one in which he found himself, vis a vis the media and legal situations, perhaps it was inappropriate and ill-revised, -- ill-advised, but i do not think he was making fun of domestic violence.

chairperson hur: are there any other facts that were in the joint submission that any commissioner would like to address? >> i would like to address the sheriff's proposed fact no. 18. the share of had proposed -- sheriff propose the factual finding that many who had been serving honorably were convicted of crimes, citing sheriff michael hennessey's declaration. i did want to address it. when i first read sheriff michael hennessey's declaration,

it gave me pause for that reason. itl1specific and in this case, as many people have said, fact do matter. it is a very fact-specific inquiry. sheriff michael hennessey did not make himself available for cross-examination after the commissioners had asked repeatedly about whether he would make himself available. he chose not to. i was not able to give his statement very much weight. i did want to address that. although they gave me pause, i could not give it much weight when he was not making himself available to testify. chairperson hur: i would agree with that. >> i do not know how we can judge this one as a matter of fact, nor is it our obligation

to do so. if it has any relevance at all it would be to the appropriate response or disciplined for -- discipline for an act of official misconduct, whether someone found that he did it or did not. a lot of what we have been offered was with regard to assertions that other people have done other things to be a lot like the comment to the state police, but a lot of people were going faster than i was. that is not the true responsibility. what did you do and we are the ones in conversation right now. i do not think there is a relative standard right now so i find it unhelpful and unproveable. chairperson hur: agree. any other facts that the

commissioners think we need to discuss? i think we have discussed all of the ones that are relevant. there are certainly many in here that are not relevant. anything else factually that we need to discuss in order to establish? ok. next, i think we need to address the legal issues, some of which are likely more thorny than the factual issues. it seems to me that the parties have agreed that we need to read the charter provision

consistent with the option that we proposed at the last meeting. option 2 requires that every cell clause -- sub-clause following the first half to relate to the duties of his or her office. is there any disagreement among the commissioners as to whether that should be the framework with which we should -- by which we should perform our discussion? commissioner renne: i think i made it clear that i do not agree with that interpretation of that statute. i think there are two distinct provisions. chairperson hur: commissioner renne, you do not think that it is a fair reading of the statue to put the colon after the first, including having the

first clause begin with "any failure" and the second to begin with "conduct that falls below." commissioner renne: no. i think the "or" is disjunctive. the second clause provides for misconduct being any conduct that falls below the standard of decency, good faith, and right action that is required of all public officials. i gave the examplelp -- take the penn state matter with joe paterno. one could say he did not violate any law. but he had a moral obligation, a

standard of the position he was in, to report what he had found that out, not to just let it go or stay, and do not come back. my belief is that is what the framers were intending, saying that we have some standard. the question has been raised, that is so vague and ambiguous. my answer to that is it may be ambiguous, but if the act that you are claiming violated that section and if any reasonable public official knows that act violates it, vagueness is not a defense. chairperson hur: it is the mayor's position that you're reading is unconstitutional. commissioner renne: i understand that. >> if you are looking at option 1 as the interpretation, which i

do have to say that has been my initial take on it, i think that is likely what the framers intended. would we be reading into it, " required of all public officers" to relate to the position in question? perhaps it is not vague as applied. commissioner renne: i think it could be well read that you look at the particular position of public official and say, did he or she conduct themselves in a manner which violates a sense of decency, good faith, and right action or regardless of what the

position was, is the action or conduct, does it fall under some general belief that it would be considered to violate the standards of decency and good faith and right action? frankly, i do nothing that it makes a lot of difference in this case whether you apply it to the office or generally. no public official should conduct themselves in the manner that occurred on december 31. >> i have come up for a long time, thought itt( was a very tough decision, which of these two it was. when i look at option 1, the question came up this morning whether if it were intended to

apply to each position, all or each public offices, and why standard was singular instead of the world. i think you can get to the same place so i am agreeing with commissioner renne here. if you are trying to make the standard of good faith and right action required by all public officers could include a number of things. ñilpand carry out the duties ofr particular office. i think that it is ordering it to try to figure out the all or the each because there is another logical both substantive and grammatical way to get there. ñiit becomes, do all of the things and all the things that your office calls of you.

that does not help you with whether we are all on option two. chairperson hur: i had that similar thought in mind as well. the only way to read -- one plausible way to read a section like commissioner renne does but to find it constitutional would have to be -- would have to, almost by definition, require some relationship to the duties of office. i think that is what commissioner lou -- liu's point was as well. both readings are plausible, based on the language. i think we should accept the reading that director lee requires this relationship for the meaning of the word since we would have to apply it anyways in order to interpret it in a

constitutional manner. which is why i think we should agree with the parties and applied option to. there will likely be significant debate as to what the nexus has to be. i do think that is the most correct reading, perhaps, in this case. commissioner hayon, if you have a view as to which reading is appropriate? commissioner hayon: i kind of agree with commissioner renne, but this falls beneath my area of expertise. my question, in terms of relating to the duties of office, my question would be, in this case, while this took place in that twilight zone, if you will, between when he was elected and the time he took

office, nonetheless, sheriff elect, his duties as sheriff relate to areas of domestic violence and quite a swath that san francisco has cut nationally in terms of what we do. it seems to me that if we read it that way, to me, that still means that what he did relates to the duties of office. i do not know if that falls under the legal discussion that we are having. that is how i would interpret it. chairperson hur: ok. commissioner renne: let me ask you this question -- at the time of the incident, he was a member of the board of supervisors, which made him a public official, which meant he was subject to the language of this section.

if he had run for reelection, hypothetically, and was reelected to the board, do you read that to say that because this does not relate to the activities of the board, it is one thing to talk about the share of -- the sheriff, are you saying that an act of domestic violence by a member of the board of supervisors could not be official misconduct? chairperson hur: i think there are two parts to your question. are you asking about the timing? commissioner renne: if you interpret that it has to relate to the office, if he had been reelected to the board of supervisors, are you saying that he would