him probable cause to feel that the official misconduct had occurred. >> and of those people he spoke to or from whom he obtained evidence, those people would be able to submit declarations? >> some of them are independent witnesses. they are cooperating with us, but there is a difference between having a short interview and sitting down and running a declaration under penalty of perjury. i cannot say that those witnesses would be willing to cooperate with us. we certainly cannot compel them. >> so your view is that you had enough to put together probable cause charges based on the statements, but you are not sure you would be able to get them to submit sworn declarations to the same effect? >> the process of drafting a sworn declaration, having the witness go through it, making sure everyone -- >> i am aware of that process.

>> it is long and difficult, and not all witnesses may be willing to do it. >> other than the person you identified in your memo, is there anyone that you contemplate, anyone else you think you can get testimony from who you do not at this point anticipate getting a declaration from? >> share of mirkarimi would be one. >> anybody else? >> itiliana lopez would be another. >> we will talk about that. as far as ms. lopez goes, what is the basis for being able to compel her testimony? >> well, the subject matter of her testimony would be relevant to a matter that is under

consideration by the ethics commission, so we would think that a subpoena to her under the charter would be proper. >> anybody else? >> let me look at my witness list. there are three other witnesses, at least three other witnesses, who are independent witnesses who have cooperated with us that we would hope to show up, but we would likely want to subpoena them to make sure they appear before the commission. >> who are they? >> martin, madison, and williams. >> i am sorry, the first one was? >> abe martin.

>> other questions from the commissioner's order for mr. keith at this time? >> mr. keith, i have just one question, and that is how did you -- i read the memo very quickly, but how did you perceive this hearing appearing to proceed? something like a trial? each side would submit trial briefs outlining what you intended to prove, and then you put your evidence in and then submit closing breeds as you would in court, and we would act on that record that you put before us? is that what you had in mind? >> that is our best guide. i think in a sense that the other administrative agencies proceed in a similar way, by reference to the police commission, for example. >> have you discussed this all

with mr. -- >> no. >> ok. >> other questions from commissioners? commissioner liu? commissioner liu: mr. keith, there are several factual allegations, so is it your view that we would have to find these allegations to be true in order to sustain a charge of official misconduct >> the commission, number one, would make a recommendation. the charter does not specify whether there can be multiple recommendations or a majority and a dissent. it does not prohibit that. my assumption is that the commission would make findings of fact. where there are credibility disputes, it would make credibility findings, and then as to each charge, if any of the charges is sustained, the official misconduct has occurred, and that is ultimately a decision for the board of supervisors to make, and we would envision the ethics commission making a finding as

to each charge. commissioner liu: the allegations in the complaint or the charging document, would we have to resolve any credibility issues in your favor and fight the allegations to be true in order to recommend that a charge of official misconduct is sustained? is that what you are saying? >> yes, as to most if not all of the charges, there will be credibility disputes, and there will be factual disputes. for example, the effect of the probation on the sheriff's ability to perform the ability of sheriff. i do not expect the other side to agree that he has been rendered unable to perform those duties and that even if he is that that renders them unable to perform the duties of office, so i expect there to be disputes even on issues that are i guess less driven by a i guess a swearing contest than other issues. commissioner liu: calling

witnesses on that point as well, with the discharge of duties, what it in tails? >> that is correct. there may be some areas where we would be able to stipulate the other side as to facts, but i have a feeling that those stipulations would really be confined to a very dry, historical facts, and i doubt we would be able to stipulate to issues related to the ability to perform duties or fitness for office. commissioner liu: thank you. chair hur: commissioner hayon? commissioner hayon: as the only commissioner not an attorney, what with the alternative look like? would it be a matter of going through written documents as a group, reading them publicly? what would that look like? >> well, i think what the executive director proposed in his memorandum was that each side would essentially submit in

writing what they're friendly witnesses would be expected to say if they were here live. that works to some extent, but i think that a lot of the record that we may be looking at, telephone records, for example, it is not self-evident, necessarily, what is going on. just looking at page of telephone numbers, and those are the kinds of records that would use interpretation, where, say, it witness says i had two telephone calls with this individual, to try to -- we might want to have that record in front of us while we are having the witness answer questions so that we would try to ascertain which of the telephone records correspond to those calls. things like that are very difficult to do when one is sitting alone for viewing a declaration. chair hur: commissioner studley?

vice president studley: how would your procedure differ in terms of the briefing and the time that it would take? i am asking for an estimate. >> certainly. what our proposal would be is that the commission would take briefing immediately on three issues. the first issue being what the standard of proof is, which was one of the bullet points in the executive director's memo. the second issue would be essentially a proposal for rules and procedures that would govern this like hearing. what would this mini trial look like, and we do not need to start from scratch with that. other commissions, for example, the police commission has things that allow for pre-hearing

disclosure of evidence from one side to the other. so those would be matters one and two. the third issue that we would request an immediate briefing on, and this is one that is in my memo which has not come up yet, is the issue of whether share of mirkarimi is going to make a claim that he is entitled to have a hearing that is closed from the public. commissioner mirkarimi is a peace officer, and under one penal code and under one decision of the california supreme court, there is a potential argument that he could make that he is entitled to a closed hearing, is essentially as a peace officer and is being a personnel matter. we disagree, but we think it is incumbent to raise this issue at the very beginning, because we do not want to put all of the work in this decision and have it be undone by some procedural defect at the outset, so we would want, it commissioner

mirkarimi is not going to wave and entitlement to a closed hearing, we would want that to be closed immediately, as well. chair hur: do you object to the other items in the memo? sort of a precursor? >> well, let me put it this way. we just briefed it to the superior court, so we could brief it, but i think briefing on these issues makes a lot more sense in the context of the facts as they are going to come in, because, for example, when you are considering the official duty, what constitutes an official duty, when is someone who is elected sheriff on duty, it is important to have the facts of what that individual is doing between the time of election and being sworn into office. it is important to have the facts of what that individual's job duties are going to be when he gets into office.

it is important to know what codes of conduct applied to law enforcement officers wear an act that happens perhaps before somebody starts in a position, whether as the head of the sheriff's department or just the deputy sheriff, and whether that conduct that occurs before they take the position can effectively disqualified them from performing the duties of office effectively, so i think that these legal questions could be answered in the abstract, and if we are directed, we certainly will, but these are tough issues, and i think it is better for the commission to be able to grapple with them in the context of real facts and evidence that we would get. chair hur: so you would suggest significant post trial briefing. >> findings of fact. chair hur: commissioner studley? commissioner studley: the staff

memo, speaking about the need for the examination of witnesses, it seemed to anticipate that it may be case- by-case, that the commission would determine which witnesses we felt the need to see in person and what testimony we can handle on paper, and do you agree with that? or do you see this as more of an all or nothing presentation of the witnesses, leaving aside those for which there is complete agreement of proof >> well, i think as a practical matter, once we start dealing with particular witnesses and the need for live testimony for particular witnesses, that exception will end up swallowing the world. -- rule. i think we will have a situation where you will want to hear live testimony from most if not all of the witnesses, or each side will want to cross-examine each a declaration for the other

side, -- each declarant for the other side. often, the declarations, there are more questions that seem unanswered man seemed answered, so i think it would be more efficient for the commission to simply take a live evidence. there may be some witnesses where the two sides can agree on on fairly uncontroversial measures, and to the extent we can do that, we will make every effort to do that. we do not want people to have to come in and give testimony in an uncontested manner. but for the witnesses i mentioned earlier, the independent witnesses, i think there is no question that they will be subject to extensive cross-examination, and that will require redirect on our part, fill in the blanks, so i think ultimately, we all save ourselves and the witnesses are lot of trouble, because, remember, these witnesses do not

work for the city. they did not ask to be called as witnesses. they did not ask to try to declarations. to the extent they are cooperating with us, they are cooperating out of a sense of civic duty, and i think we should try to make its board and on them not so heavy. >> mr. keith, the burden of submitting a declaration at the pails to the board and of actually having to testify in a proceeding like this, so if anybody can submit a declaration and not have to testify, i think they would agree that the board is much less than having to testify. >> i agree. if we think it would end at the declaration where there is uncontroversial, we have no problem submitting just declarations for those witnesses. chair hur: does the mayor dispute that he has the burden of proof here? >> no. chair hur: what about timing?

when would you anticipate being ready to call witnesses if live testimony were permitted? >> well, that depends on a lot of the proceedings that are going on right now. as we detailed in our memo, there are several instances of hostile witnesses and and lack of cooperation on the part of the sheriff, using the mayor subpoena power to go to court to get orders for people to comply with subpoenas and also to go to court to get an order to release evidence, criminal court, so assuming all of those chips fall into place and nobody makes any objections, which, frankly, is an assumption that i doubt will ever happen. we expect to be fought every inch of the way on these things. assuming that this court dates came and the subpoena dates came, and we got those without objection, we would be ready to proceed in june, but i very much

doubt that is going to happen. chair hur: any other questions for him at this time? thank you. >> thank you. chair: i do not know when you got this memo, but have you had an opportunity to review it? >> i have. chair hur: what about this and the response? >> well, if i could, i would like to preface my remarks that i think at the outset, we need to make our objections known for any of these proceedings occurring, because the mere fact we are here to try to figure out the rules by which this

process is going to work demonstrates the constitutional infirmity of the proceedings, and we object. we objected to the commission doing anything other than dismissing the written charges of misconduct and bring the proceedings to a halt. now, having said that, i think i am enough of a political realist to understand we're going to have to go forward with the proceedings. i do not think we have a fixed instant decision in the proper order to do things. until we understand what the mayor's evidence is or what is proposed evidence is, there is no way that we can formulate what our response to witnesses or testimony would be. we have the same information as you, the rich and allegations of misconduct, but what i think i just heard him say is that we do

not get the evidence to support those charges. the charges were brought before the evidence was in the mayor's possession, so we need to know what they are going to present before we figure at how we will respond. number one. number two, we urgently need clarification from this condition as to whether or not sheriff mirkarimi is required by law to cooperate with this, quote, investigations that the city attorney has embarked upon, and as we wrote in a letter to the commission, and i trust you have already received that -- chiar hur: what are you referring to? >> i assumed it had been delivered, and if not, i

apologize. the city attorney has been trying for a week or more to try to get sheriff mirkarimi to turn over his lawyers files from a criminal case, to sit down for an interrogation, all under the authority of an alleged, unbounded city attorney right to investigate. now, the charter provisions that i have looked at indicate that if there is an alleged violation of the san francisco campaign and governmental conduct could, a complaint may be made to this commission, and it is this commission that decides to initiate the investigation, and the city attorney may participate in that investigation. i do not see anything in the charter or any other statutes that permit the city attorney to go out and start their own investigation. we need clarification on that

issue immediately and urgently, because it seems to us that we would be fighting with one hand tied behind our back if they can go out and prepare whatever they need to prepare to proceed with this proceeding before you all have even promulgated rules of procedure that will hopefully proceed in an orderly fashion. now, i did want to address one point that mr. keith may. we do not intend to argue that these proceedings need to be private. indeed, we think they should be public because i think at the end of the day, there is a lot of innuendo and talk about the share dissuading people. the mayor's written charges say that he may have tried to dissuade a witness, and i want to mark my words. when all of this is said and done, it will be crystal clear that the sure did no such thing,

and we want that to be clear to the people of san francisco. hiair -- chair hur: let me stop you there. so there is no dispute that the penal code section should not apply? >> correct. now, with respect to briefing schedules prior to the taking of testimony, whether it is with a declaration or live witnesses, i could answer almost all of the questions that the commission raised in the memo right here. i can tell you what we think the burden of proof should be. i can tell you what evidence we think you should rely on and go all of the way down the list if you would like me to do that. we do have an interest in accelerating the proceedings as quickly as possible, because we think the longer this drags on,

it is not only detrimental to share of mirkarimi, it is detrimental to the city, so we are not in favor of a lengthy proceedings, pre-and post trial. we can certainly do the same orbit. i do not been as of last be set forth in a lengthy fashion. of course, if you think that is beneficial, we will certainly cooperate. chair hur: if we did not need written briefs, how quickly would you -- would you want a procedure where the mayor would go first with an opening brief and then you would respond? which you prefer simultaneous briefings? >> the former would be preferable to us, just as it would be preferable to us that they disclose what evidence is that they intend to rely on so we can prepare to respond. to me, this is somewhat akin to a criminal prosecution, in a

sense, and one of the reasons why i made my objection earlier to these proceedings is in a criminal case, if they did and it was hauled into court, and a judge told them, you have been charged by a crime -- charge of the crime by the d.a., and now we will determine the standard of proof, i do not think anybody would be happy. we think it is essential that they tell us what they intend to prove and have noticed. notice is the hallmark of due process, and that is what we're trying to make sure happens here. chair hur: sensitive to the fact that you would like the proceedings to go as quickly as due process allows, what would that briefing schedule look like in your mind? if you could set it? >> well, i think it is depending on when the mayor thinks he has all of the evidence that he needs to present.

in terms of the legal points raised in the memo, as i say, i think we could receive their memo as soon was prepared and respond within one week or so. certainly on the legal questions, the standard of proof, one point not on here is whether or not the commission has to vote unanimously to recommend removal for sustaining these charges. we firmly believe that should be a requirement. we analogize these proceedings to the existing system and to the government code, section -- under that state's scheme, the accused officials enjoys all the protections that he would under a criminal indictment, and we think that those concepts should be important to this proceeding. chair hur: if it included

responding to factual statements, how would that change your time frame, if at all? >> it was significantly extend it, because until we see what their facts are, we cannot really began. we have a general sense of what they are going to try to prove and how we are going to try to meet it, but the devil is in the details, so maybe there is something out there that we do not know about. it is awfully hard for me to tell you we would need 30 days or 21 days. we would need significantly longer than a week if this was going to address factual issues. chair hur: do you have a position on the need for live testimony? >> i think it is going to be

unavoidable for at least a couple of witnesses. i am not opposed to having declarations submitted for this to can and will submit them and then it either side thinks we have a dispute of fact on this one particular issue, we would like to call the declarant on that issue, and the commission makes its ruling on whether or not we can and cannot do that and go forward that way, but i think there are a couple of points that are probably going to be straight credibility calls that are going to require witnesses. chair hur: do you have a position on whether ms. lopez can be called by the mayor? >> i think that depends on whether the city attorney investigation is duly authorized, and that is one of the reasons why i think we need

the commission to weigh in on this. i know that the city attorney has been out there serving subpoenas and requesting documents, and it is not an all clear to me that that is legally authorized. chair hur: let me ask this another way. do you depend on relying on her testimony? >> we are not in a position to answer for quite some time. chair hur: at this point, i think the mayor identified to he would intend to rely upon. at this point, who would the sheriff rely on? >> i think i'd like to reserve that, if i may. there are about six m eight

witnesses that we think we are likely to either some declarations or call as witnesses. sheriff mirkarimi obviously being number one on that list. you know, i think there is a woman on our list, assuming she is willing to cooperate and can be called as a witness. chair hur: i do not we -- think we would hold you to this being a final list, but are there others? >> i would like to know if there is, to be some process by which the commission can take into account historical facts not related to this case. that is what has happened in the past when other officials, sheriff's or other types of officials, have been accused in

some way, not in these types of proceedings, with having committed misconduct. i think that can inform the commission's decision as to whether or not it is appropriate to recommend that these charges be sustained, so it would be akin to requesting that you take judicial notice of observing historical facts, and one of the things that we may want to do is call witnesses, a witness or witnesses to testify about the fact that there are law enforcement officers in the city a serving who have suffered misdemeanor criminal convictions. the mere fact of the mr. mayor criminal conviction in an of itself does not likely impair someone's ability to perform their duties and functions of a peace officer, so those are, without identifying specific people, those are some of the i guess we would call nonfat witnesseat