>> i would like to all to order the special meeting of the san francisco ethics commission and we'll begin by taking the roll. commissioner liu. here. >> commissioner hayon? >> here. >> commissioner renee. >> here. >> commissioner studley has an excused absence today. our first order of business is consideration of the draft findings and legal justifications for the commission's decision on august 16th, 2012. we have posted and circulated a written document that summarizes what was done on the 16th. thanks to commissioner liu for playing a significant part in putting this document together. before we begin, one issue i

think should be made clear, there seems to have about some confusion about whether or not the commission would provide some recommendation as to what the effect of the recommendation of official misconduct should be. having reviewed the transcript and certainly my personal understanding of what we decided on the 16th was that there was no need to provide any explanation for suggestion of what the affect of a recommendation of official misconduct would be. because the charter clearly states that if there is a finding of official misconduct, then the person found to have committed official misconduct shall be removed from office. so it seemed to me there is no discretion for the commission to determine or to provide a recommendation to board as to what should happen, should the board find that the sheriff

committed official misconduct. so i just want that to be clear in terms of why our order doesn't address what the affect of the findings shall be, because the charter really provides no option. commissioner hayon? >> while that may be the case, i do understand that the charter spells out what punishment should be based on our recommendation or finding. sheriff mirkarimi guilty on those two counts. i do feel there has been a tremendous amount of confusion about this in the public and even in the media to some degree. and even if our recommendation really has no bearing, in the case of what the punishment should be, i feel that the commission should at least go on the record as to how -- what we feel the punishment

should be and the board can certainly ignore that particular recommendation, or use it to bolster whatever arguments take place when the board has its hearing. but i for one feel that the commission should have and still should consider a vote on what the punishment should be. and if it's not inappropriate, i myself would like to make a motion to that effect. i don't know how the other commissioners feel about this. just for the record, i realize that the legality, it doesn't -- it's not necessary in view of what the charter recommends. but i do think that we should be on the record. >> i guess my concern with that is that we would be recommending action to the board that they cannot take.

i mean, their options are to either find that the sheriff committed official misconduct, or find that he has not committed official misconduct and if they find the former, the charter is clear that he needs to be removed from office. if they find the latter, it's clear that he is not to be removed from office and he is to be reinstated. so i think a recommendation to the board of something that they can't do would not be productive. i don't know if any other commissioners -- >> let me just say that as you are probably aware the lm women passed a recommendation or at least a stance recently, and they have no bearing on the official proceedings whatsoever. but they wanted to go on the record as to what they feel should be done. >> let me say chairman hur, i

tend to disagree with your reading of what power the ethics commission would have. as i think i said very early on and although i am sort of alone in my broad reading of the definition of "official misconduct," it appears to give the mayor discretionary power, not the section that deals with felonies, makes it mandatory. the section that just talks about official misconduct says, "the mayor may suspend or punish." so as i said earlier, i thought our analysis is a two-step analysis and that is first, do we make a finding of official misconduct? and secondly, was the suspension by the mayor appropriate? and the

reason why i feel strongly about that is in a way addresses what your concern was when you say with my broad reading of the statute, it gives the mayor unlimited power. i said it doesn't give him unlimited power if at the hearing it became clear to us that the mayor was acting solely out of a political motive or some bad motive other than that so that the official misconduct that he found we might feel was not sufficient or did not justify suspension. now i agree with the fact that in this case i would say i would not recommend that the mayor abuse his discretion based on the facts in this case, everything i have heard. but i do not subscribe to the view that if we make a finding

of official misconduct. that is the end of our analysis in every case. >> okay. well, i certainly don't think that we should be deciding here what would happen if we found that the mayor had engaged in some sort of prosecuturial type of misconduct. i don't think there is evidence of that in if the record and we should not provide advisory opinions what should happen in that event and neither do i think we should be providing advisory opinions what should happen if the mayor requested that the sheriff not be removed from office. if we the board recommend or do something other than remove him from office if there is a finding of official misconduct.

i don't see the benefit of providing any other recommendation to the board. commissioner liu? >> thank you. i do understand commissioner hayon's concern for taking a position on the consequences and what effect the misconduct charges should have. however, i think that i am more inclined to agree with chair hur on this particular issue, because -- and the reason is because we were so careful in analyzing what the charter says and what the standards are and we parsed the language. we were trying to be true to what each of felt what the charter allowed us to do and not do. so i would not feel

comfortable now straying from that principle and doing something that i really don't see that the charter allows us to do. so for that reason, i wouldn't want to take a recommendation on it, simply because that is not what i think we're authorized to do under the charter. and if we have been true to what we each believe the charter allows or doesn't allow and i understand commissioner renne's point of view as well, but for myself, i think because i have been sticking to what i think the charter allows and what it doesn't allow. so i wouldn't stray from it at this point at this stage. so for my point of view, i think our job was just to give a recommendation about whether to sustain the charges and that is it. that is all we were asked to do and tasked to do. so for that

reason i am also not inclined to take a vote that i probably don't see that we are authorized to do, to make some kind of recommendation that isn't found in the charter or isn't grounded in the charter. >> mr. hemblig, do you have a view on this? >> i stated my view at the last meeting. i believe that the mayor has discretion about whether to bring charges. but the charter spells out what decision is required of this body and that is to decide whether or not to sustain those charges. that doesn't mean that there would be anything unlawful about you making other recommendations, but what the charter asks of the ethics commission is does it find that the charges are sustained? and what it asks of the board of supervisors is the same question and if three-quarters of the board of supervisors vote to sustain the charges,

then there is no discretion on the penalty. the penalty is removal from office. so i think the charter anticipates a decision here on whether or not to sustain the mayor's charges, a decision by the board as to whether or not to accept your recommendation and nothing more, nothing less. >> commissioner was there anything further? on the issue of making a motion for us to vote on the -- on what the penalty should be, i am not in favor of that for the reasons that we discussed. if you want to put in something -- i guess if there was some sort of concurring type of opinion, you wanted to put in,

statements about what your view of what the punishment should pe, that could be something that we could add, not as part of the majority opinion, but something that is separate. that could be done, but i would ask what your viewpoint is on whether that is something you would like to do? >> well, i mean based on the discussion and what mr. hemblig as indicated and has indicated before, our charge, i guess is quite specific, and that is to decide on the merits of what we voted, the counts on which we agreed sheriff mirkarimi was guilty. i don't want to go beyond what the charter asks us to do. i think on a personal level, you know, i want to be clear

about what i feel, and i don't know if this is the appropriate place to do that. if it is, then i would, you know, certainly add something to the report. it's not a dissension, but just to be on record of what i feel should happen when the board considers this, but it's not an official recommendation. >> any other views on the issue of a proposal to the board on penalty? >> i mean, i think it would be entirely appropriate for commissioner hayon to add her view. that would be appropriate for the board to know. >> i am fine with that. the issue though is timing. i don't think -- i certainly don't want to have to meet again to ratify this document

again. so i think if you want to put something into the record, if you want to right now put in language into the record on your concurring view, then i think that would be fine. but i am not inclined to have a procedure where you go back, draft it and we come back and have to ratify something else. >> under no circumstances am i suggesting that we do that, but if i may, then i certainly would like to go on record that while we are not charged as a commission in making a recommendation on the penalty, i want to be clear that my own view is that based on our findings, that the appropriate punishment should be removal from office. and that is my personal view. and i would just like to make sure that that is on the record. [ inaudible ] >> there is no motion.

>> okay, so the proposal is to add a concurring view from commissioner hayon stating that she supports a finding that official misconduct should result in the sheriff being removed from office. is that fair? okay. so we will consider that. >> so my question is will that simply be on the record in the minutes of today's proceeding, but not in the official document, so that we don't have to go back and review it? >> i guess it's up to you. what i was suggesting, if you don't want it in the document, that is fine and we don't have to go back and review. i suppose there is an option for essentially mr. hem abouts hemhemblig to put in that language and vote on that as

amended. >> that would be fine with me. what i don't want is to hold up the proceedings. i do not want to do anything that would hold up these proceedings any further. >> okay. so the draft as currently amended and i'm sure there will be other amendments, contains a one-sentence concurence from commissioner hayon. do you have that language in mind. >> the language i have is commissioner had aon supports a finding that the official misconduct in this case merits the sheriff's removal from office. is that accurate? >> that is accurate. >> okay.lp >> there were some additional edits proposed by the mayor and i think that they are accurate. so i would propose that on

page 2 lines 1 and 2 should now read, "this matter presents the first time that the ethics commission has provided a recommendation to the board of supervisors regarding charges of official misconduct under charter section 15.105." >> did you get that? >> no. >> one more time, please. >> this matter represents for the first time that -- and strike "the mayor has presented the," ethics commission has provided a recommendation to the board of supervisors regarding charges of official misconduct. so you would strike the "with" and in line 1

strike "mayor has presented it." is there any objection to that from the commissioners? in the next edit that the city attorney proposed, which i think is correct is on page 4, line 1. line 1 begins "examine any witness except the mayor." the city attorney has pointed out that the sheriff also cross-examined chief of police william lansdowne and it should now read, "except the mayor and san any objection to that from the

commissioners? do the commissioners have any proposed edits to any of the remainder of the document? commissioner renne? >> i have three suggestions for additional language that again if in any way would delay these proceedings, i would pass on them. but i believe they are consistent with what the record was and what the conversations were back on august 16th and that in paragraph no. 3 of findings of fact on page 5. after what is typed in there, "on or about december 31, 2011,

during the time he was incumbent supervisor and sherifflect ross mirkarimi committed acts of abuse against his wife elaina lopez," and mr. mirkarimi grand miss lopez with such force he bruised hers arm aadd in that following sentence, "in that regard the commission did not find credible the version of the incident as iss lopez an the hearing before the commission. rather the commission found that the evidence contained in miss lopez' video was more credible." i think that that is helpful not only to the board, but based upon the public comments that whave received,

which accepted the version and the testimony that was heard at the commission by the commission from the sheriff and miss lopez. there are many who have argued it was such a minor incident, that it shouldn't be misconduct. and yet, i think, as commissioner studley remarked on the 16th, that was a very powerful video and was more credible and more believable than the very sanitized version that we received at the hearing. >> mr. hemblig? >> i got most of that, i think in that regard, the commission did not find credible the version of incident the sheriff miss lopez at the hearing. rather the commission and that is where i ended? >> finds that the evidence contained in miss lopez' video

was more credible. >> thank you. >> i think my concern with a statement like that is its breadth. where sort of in one sentence making some broad statements about a lot of testimony. not sure that there w the sheriff and miss lopez said about the incident were not credible. and moreover, that is not really a finding of fact. what i think we have here are facts, things that we say happened, that we agreed happened. rather than weighing the credibility of one witness over the other. i think the vagueness of this

is problematic to me. i would not for that. welcome to views of other commissioners. >> i agree with commissioner renne. i actually think we had quite a bit of discussion about the video, and i think it is important to understanding our recommendation or at least the recommendation of the majority. i do think it's important to understand why we found what we found and why we found it to be official misconduct and that was a big part of the discussion. so if it's perhaps not appropriate in the findings of fact portion, perhaps we can insert that sentence in the would be more the majority view.

appropriate there. >> i have no objection to the second suggestion that i had goes to item no. 7. on the findings of fact which is march 12th, 2012 chair mirkarimi pled guilty to the crime of false imprisonment of his spouse. and again my comments may be that it should go in -- rather than "the findings of fact." in the "discussion zortion." and i would add, "a "and was sentenced to three years' probation, 12 months of domestic violence -- i forget the exact language, but we can

get the exact language aa fine. it is this conviction and sentence that brings the misconduct within the time period when he was officially the sheriff. and my concern here is that one of the issues raised bit sheriff by the sheriff and because i think's an issue that will have to be resolved. without the conviction lç'n occurring during his tenure, there might be some real difficulty in saying that official misconduct, but having

pled gety to false imprisonment, that satisfies that the conduct occurred outside the time he held his office as sheriff. and i guess i just want to again make it clear that we recognize that is an issue. and that is at least in my mind how that issue gets resolved. >> i think there is two points there. i think that the fact of the imprisonment, the sentence, the consequences or basicathe sente to me. i think that is consistent with what am getting a litare trying post-hoc justifications for the decisions made on august 16th. i don't know that we discussed

on the 16th that the timing element is satisfied by the plea. maybe if we did, then i think it should be put into the majority, if that is what the majority wants. in the "facts" section, i don't think that part should be included. any other commissioners on this? >> i was just looking the "findings of fact," that have been proposed, and so i guess that particular portion is not in the "findings of fact." but i would be fine in adding it to the major discussion.yyisq

[inaudible] -- -- we'll have to make a finding on it. >> do the parties disagree with na, i think the sentence was stipulated. mr. wagner., ou on that? >> i would object to adding any language that attempts to change what the commission decided on august the 16th that is not ultimately relevant to what the commission is tasked to do. >> i can appreciate that view, but my question is did you

stipulate what the sentence was? >> yes. >> okay, thank you. >> that is not reflected -- we stipulated to several of these facts. but the way it reads here is that the commission unanimously finds that the mayor proved the facts. well, if we stipulated to the facts already, then the mayor didn't need to prove them. >> okay. i have no objection to putting in the sentence in "finding of fact 7." >> excuse me, i need that sentence then. what i have is hree years' probation, domestic violence counseling and a fine. it is this conviction and sentence -- ." >> that part i don't agree should be put in the findings of fact? >> the sentence i just started?