>> we are now back in session. i understand the sheriff's deputy is in the room and has an announcement. >> [inaudible] >> thank you. before we adjourned, we were discussing -- i believe he was in the middle of his remarks.

>> the other aspect of why the issue of what happens with the firearms is relic -- relevant. a law enforcement in executive is expected to cooperate in an investigation within another law-enforcement agency. an individual who is a bad ever having access to his own weapons. this is something -- a batterer having access to his own weapons. this is classic batterer behavior. that sheriff mirkarimi abused his wife. chairperson hur: whether he turned over this -- is firearms is relevant to whether he abused his wife? >> they behaved in a certain way.

we expect to present that this type of behavior trying to keep control of an individual, trying to keep control of his own firearms within his own agency, is classic behavior. that is why the testimony is relevant. chairperson hur: thank you, i think i understand your position. comments from the commissioners? not only do i find this testimony relevant, it seems -- it is such a minor witness, i cannot see why we need to hear from this person. why this person is probative to the matters we have at hand. but i welcome the views of my fellow commissioners on this particular witness. >> i agree. chairperson hur: any opposing

views? ok. paul henderson, why do we need to hear from mr. henderson? >> he is responsible for coordinating different criminal justice agencies within the city. he would be able to hear about their role of the share of having to make decisions on discretionary budget matters and to work with other agencies within the city and how the existence of probation sentence of faxes ability to participate in those discussions. -- affect his ability to participate in those discussions. that is relevant to whether his conduct fell below the standard that is expected of chiefs of law enforcement agencies, which is to not put themselves in the position of making decisions that will effect them in their

personal position. sheriff mirkarimi is going to be on probation for three years. he is gone to be making a decision in matters -- a decision on matters that affect him. there are a lot of coordination matters where the sheriff has to make decisions on what is going to happen with offenders, whether they will be incarcerated, or subject to house arrest. these agencies have to work together. his ability to make these decisions is going to be compromised. paul henderson's testimony goes to what are the actual ways a sheriff has to interact with other agencies in the city. chairperson hur: that's a very well may be, what i do not follow is how his ability to

perform the job relates to whether he committed official misconduct. there may be an argument that he would be handicapped in his ability to perform his job because of the events that occurred, but i do not think that is the basis for us to find that he should be -- we should make a recommendation with respect to official misconduct. [applause] please. from my point of view, i do not think any evidence you intend to offer about whether he is going to be able to perform his job going forward is something that is not relevant to our task. i welcome your response. >> we disagree. the reason why the disagree is because there is a question of what kind of misconduct is related to the duties of the office of sheriff.

if he is going to engage in contact with his wife that had the ultimate consequence of affecting his ability to perform those duties that relate that demonstrate -- it also shows that he is engaging in behavior that a facts his adequacy as the chief law-enforcement officer. that falls below the standard of conduct under the second prong of the official misconduct task regarding the standards of decency and good conduct we expect our officials to engage in. chairperson hur: commissioners? commissioner liu: i do think that if the sheriff is taking

the position that the misconduct has to relate to something going forward with this official duties, this evidence potentially would be relevant. if i understand you are trying to demonstrate what the relationship or the nexus is between the alleged misconduct and his performance of duties going forward. i thought i understood the shares position to be that the mayor has to establish that connection. if that is the case, i do think this would be relevant, at this witness is supposed to testify about how the alleged misconduct or off-duty behavior could potentially affect someone in the the sheriff's position. i do see the relevance of there. >> i think the problem is this

is a very expansive reading of what the duties are of the share of of san francisco. i understand why the mayor wants to expand those duties so that they can bring in a parade of the expensive expert witnesses. the problem is the duties of the sheriff are limited. run the jail and execute lawful court orders. not much else. all this extra aspirational goals, while they may be very virtuous, are not core duties of the sheriff. for that reason, this witness, as well as all of the expert witnesses, are irrelevant. commissioner liu: is there no stipulation for what the duties are?

>> they are in the charter. commissioner liu: are you having a fund of disagreement with mr. keith about what the duties are? -- a fundamental disagreement with mr. keith about what the duties are? >> i suppose so. 6.102 -- i have to go back and check. i will give these to you in just a moment. only those, nothing more. commissioner liu: can you respond to that, please? >> certainly, the scope of the duties are disputed. there also contained under state law because the sheriff is also a state officer. with the recent realignment that has passed at the state level, there is a lot more discretion locally with regard to

offenders' sent back to this jurisdiction. there's a lot of policy decisions, budget decisions. it is our position that if the ability to perform those duties is affected, in addition to his core duties, all of those duties are important that he be able to perform well. the share of is an elected official is expected -- sheriff is an elected official. we differ very much on that point. >> i apologize. i do not understand whether he can perform his job going forward is relevant to whether he engaged in a wrongful behavior relating to the duties of his or her office including any failure or neglect of an officer to perform -- meaning

-- to perform. what am i missing? >> ok, the portion of the charter that you just cited is the first prong of the official misconduct. we consider this to be more relevant to the second prong of the misconduct. a person who is elected to an office takes actions that disable them from affectively performing the duties of that office, that is something that falls below the right kind that that is required. >> let's talk about the second prong. i have a disagreement with both parties as to what this is supposed to mean. this refers to the standard of decency, good faith, and right actions required of all public officers, including any violation of a specific conflict

of interest. i did not see this as one standard for the sheriff, one standard for the mayor, one standard for the board of supervisors. this is one standard for all public officials. to me, it makes mr. henderson's testimony all the more irrelevant. >> the argument from us would be that each public official is under a duty to perform the duties of office to the best of their ability. they are expected to do that. you have to look at their ability to perform the duties is affected. the standard is the same, we expect all of our officials to be able to perform the duties of office. what does the sheriff have to perform? commissioner studley: cannula

explained a limitation that potentially affects -- can you a explain the limitation that potentially affects his duties to carry out his office? >> i will defer to my colleague on that. she came prepared to speak to these sorts of issues. commissioner studley: thank you. >> commissioners, first of all, i would like to back up to the legal points you were just making. about their only been one standard of conduct. these sorts of conduct codes of professional conduct, conduct unbecoming an officer, it is formulated in many ways. the supreme court has always upheld these against vagueness challenges by saying that it is not a one size fits all conduct.

it is specific to the office that the person holds. under this established law, interpreting these sorts of conduct clauses in terms of the biggest challenges, which is being raised here. -- vagueness challenge. chairperson hur: i understand your position on that. if, for example, four attorneys or doctors or any other profession, a standard of care and a rule requiring that they not fall below the conduct for lawyers or doctors or accountants, they are held to that standard. my point is aside from this challenge, this appears to refer to a standard for public officials. public official being the relevant body of individuals. not that you can extrapolate from the fact that yes, these

standards, when applied specifically to a profession, can be used, but that this is referring to the specific profession. >> the mayor would disagree with that. there is a different standard of conduct imposed on a chief law enforcement officers that is not the same standard of conduct that is imposed on an elected dogcatcher. mr. mirkarimi did not run for a job that was devoid of these extra responsibilities. he is both elected and a chief law-enforcement officer and a chief jailer and a department head who will have to deal with many other department heads. not every elected public official has that constellation

of duties. we do have experts coming prepared to explain what it is that is inherent in a sheriff's job that sets forth the standards of conduct for that particular position. chairperson hur: thank you. questions from the commissioners? >> i am going to try my question again. what is the offer of proof you are making about what stands in the wake of his ability to carry out the duties of the office going forward? is it time and? or is it something else? i am trying to focus this on what you are saying, what is the limitation that to -- under which you believe he would

suffer that would impinge on carrying out the duties of office? it relates to several different witnesses entering number of expert witnesses. >> i am not prepared to give you a complete list today. for example, the sheriff has to work in harmony and have credibility with other department heads in the criminal justice system. this sheriff would be on probation and negotiating policy decisions and important determinations about great entry with the chief of the adult probation department, whose staff member would be supervising the sheriff. it creates incredible conflicts of interest. it creates difficulties for other city officials and

figuring out how to proceed, whether they can have confidence in this sheriff, whether he will continue to obey the professional standards that he has already once broken. conflict of interest is one problem. another problem is the morale of the office. being an example of how best to in prison people is gone to be very difficult once you have been convicted of unlawful leak imprisoning one's own spouse. a lot of this -- on lawfully -- unlawfully in prison in one's own spouse. there are many duties of the sheriff's office that are affected by his particular conduct and by the sentence that was imposed on him. these are not un connected

items. for example, there are a number of cases in california lot of about the effect of being convicted of possession of marijuana on one's ability to practice one's profession. invariably, for law enforcement officers, correctional officers, these people are being terminated and the courts are upholding the termination because there is a relationship between that criminal act and their duties. at the same time, a real-estate broker, the court says there is not a clear connection between that profession and that crime. we are trying to show that the acts here that are being alleged or in relation to the standards of conduct for a chief law-enforcement official. commissioner hayon: i appreciate your explanation. i do think perception is very

important. in a law-enforcement officer. i think the question would be, which witness would be most appropriate to lay that groundwork? there are several witnesses on these lists, expert witnesses, or this particular individual, and that we do not need to hear from all of them, but perhaps hearing from one who can talk about, you know, the value of -- or the conflict inherent in someone who has been convicted to something who is also a law enforcement officer. it would be valuable to hear how bad is problematic, but i do not think we need a whole list of people to talk about that.

who is most appropriate? we also have a former sheriff on the witness list. perhaps he is someone who could address some of that, i do not know. there are too many people to fill that category, so maybe we could just come up with one individual who answers those questions. >> i would like to explain why the different individuals are on the list. that might help to deliberate about what will be the most important. chairperson hur: why don't you answer that question first? if you had to choose one of these witnesses, who would testify about itthe effect the actions would have on his ability to perform his duties going forward, but with that witness be? >> as we understand it, and as we have presented, it is a two- pronged question. we need to present the factual

basis of what the sheriff does. and then we would have to present expert testimony on how does duties are affected. we are happy to follow your direction in terms of when a win them down. it is hard to say -- winnowing them down. it is hard to say. that we can locate that in one particular person. the intent was to offer mr. henderson, to offer the acting sheriff to talk about the current responsibilities. in particular, to talk about the particular relationship between the sheriff's department's and probation. we think that is probative. if you wish for us to narrow down the approach to the question and not to focus on

cooperation with other city agencies, or not focus on the department, and why those are polluted, or why it is that inside the sheriff's department, there are conflicts with the duties, we are happy to limit that. but there is not one person who can testify to all of those things. we do believe they are all relevant and all important and worth hearing. even if the commission finds it to be overkill, we do not know what the board of supervisors is ultimately going to conclude when they reviewed the record. we would ask that the commission air on the side of over inclusiveness for that reason. even if you do not want to hear testimony, even if you want to bypass this witness, we would like the opportunity to get this important testimony into the

record. we do think it is relevant, we do think there are decision makers would like to consider it. chairperson hur: other questions? i must say that i am -- i think all of these witnesses who were talking about the alleged impairment to perform the duties going forward are not relevant to what we are tasked to do. it is a narrow fact-finding investigation as to whether conduct that has already occurred is official misconduct. giving testimony about the relationship among various agencies, getting testimony about the duties and whether he can perform them, i do not see the relevance. but it appears there is disagreement among the commissioners about that. if there is, i think we should discuss it. it would greatly affect the

scope of the testimony. >> as i read the briefs, i believe the mayor was proposing to introduce this evidence because of the argument being made that to the misconduct, if it occurred, was not in relation, or was not connected, with his duties as sheriff. and what the mayor argues is that there should be some relationship, and cites a number of california casement -- cases of law enforcement personnel who were terminated because of speeding violations and the

court talked about the fact that law-enforcement official has a special set of duties that a violation of the law which might not affect a non-law enforcement officer. that is what i understand this testimony is in for comment to say, to about the argument being made by the share of -- sheriff that these acts are not related to his duties. therefore, he does not fall under the grounds of being suspended or put out of office because of "official misconduct." i do think i agree with the statement that it seems to be

you ought to be able to put that in the under a single declaration, or two zero at most -- or two at most. the fact that somebody is on probation, or that somebody may have pleaded guilty to false imprisonment, somehow disables them or her from operating as a sheriff. >> there is no question that we carry the burden of proof on that point. we want the opportunity to bring the testimony. we want the opportunity to give you the materials to reach an formed conclusion about whether the allegations are right or wrong. just saying they are right does not make it so. the other problem that we have is a problem that you discussed earlier.

o board and the problem of -- avoiding the problem of hearsay. if we only have one witness, we will not be able to have a witness who satisfies the evidence code. and who meets the high standard of presentation that he would like to see. that is part of the reason why we have been a very thorough. we think we are trying to give you a thorough, solid, sound a record on which to base your decision. that has been the impetus for creating these lists. it is not an attempt to snow you. chairperson hur: we appreciate that. we would not suggest that you are trying to drown us in paper or anything like this, but this procedure does contemplate a hearing taking place as soon as five days after the official

charges. one of the reasons why -- the elected official is suspended without pay during the time that the ethics commission and the board adjudicate the matter. i find it -- to me, i find it hard to believe that we need to have witnesses talk about every single element of how the sheriff can or cannot do his work, when this is something we should be able to do within five days of the charges. commissioner studley: i found the comments about the issue that this might go to to be convincing. i also see this as very different from the testimony of ms. flores, which runs the risk of