rex good evening. i would like to call to order the special meeting of the ethics commission to continue hearing the misconduct proceedings related to sheriff ross mirkarimi. we will start by taking the role. commissioner studley, here, comissioner hayon, here. comissioner renne, here. >> over the last -- >> thank you. [cheers and applause]

>> during the course of the last month, there will be an opportunity for public comment and we welcome your views. if the crowd could please allow us to conduct our business, we would appreciate it. thank you. over the course of the last

month, the parties have submitted a number of briefs and on behalf of the commission we want to thank the parties for their diligent efforts in doing so and complying with our deadline. i think much of the information that was provided was helpful. there are a number of things we need to address tonight, so the procedure i would propose, subject to the views of my fellow commissioners and the parties is that i will introduce an issue that was previously briefed, invite comments from the commissioners, and if the commissioners have any questions for the parties or any party wishes to be heard on the matter after hearing the commission discussion, we will invite you to do so. is that acceptable to the commission? any objection from the parties? ok. because al lot oflows from

the decision, we should start with that issue if testimony should be made. we have asked for a briefing on the party's views -- parties views if live testimony should be considered under oath. my view after reading the paper and the hearing is i do think some live testimony would be helpful for the commission in making an evaluation and reviewing the evidence. i welcome other views from my fellow commissioners on whether that should be the case. commissioner studley? vice-chairperson studley: could you describe how 0 we would narrow the issues to what is appropriately before us?

>> sum narrowing will be required. -- some narrowing will be required. my idea was to get into the discussion of which witnesses we would see after we discussed the other preliminary issues but i share your concern about the breat h -- breadth of the witness list. vice-chairperson studley: can we have a combination of testimony or declaration? >> i was envisioning a hybrid where some evidence could come in through a declaration. for certain individuals, live testimony will likely be helpful to us. >> and to piggyback, there is a long list of witnesses, were we to ask all those witnesses to participate. it seems that would not be

necessary. it would be great if we could narrow the list to those that are truly relevant to the case at hand. >> i concur. >> i would agree with that and also narrow it to where we think we have credibility determinations to make. that is the only area where we need some limited live testimony. >> thank you for reminding me to speak into the mike. i was commenting i do agree that some live testimony would be necessary, but only limited to those areas where we would need to make a credibility determination and certainly not the link the list that you have seen. we can narrow the issue. >> would any party like to be heard on this issue?

>> yes, sir. on behalf of sheriff mirkarimi with my co-counsel. in our view, the proposed witness list that has been given to you by the mayor is excessively link the. we believe many of those witnesses are irrelevant. for the determination to are going to need to make. also in our view, the only two witnesses that definitely should be testifying live our mayor lee and sheriff mirkarimi. we think all the other witnesses can be handled by declarations subject to the other party insisting -- by a cross examination and if you decide you need that. >> that issue, the specific issue will be addressed later. this is limited to the question of should we have some live testimony. it sounds like you are amenable to that and the mayor wanted

that as well. i do not expect any [inaudible] from the parties on this. because there are so many decisions to be made tonight, i am also proposing that we take one vote at the end, addressing all the issues, particularly when it sounds like there is unanimity on an issue. is there any dissent on the view that we should entertain some live testimony at a hearing? ok. moving on to the next issue. the standard of -- of prove to be used -- proof to be used, the sheriff has proposed a preponderance -- beyond a reasonable doubt standard. the mayor has proposed evidence standard.

in light of the briefing and relative authorities, it appears to me that a preponderance of the evidence standard is most appropriate here. beyond a reasonable doubt seems to be something that would apply in a criminal matter and i personally do not see any legal basis for applying it here in our commission proceedings. welcome the views of my fellow commissioners on this. commissioner renne? commissioner renne: the only question i have is on questions of fact which may go to the question of whether the sheriff committed some criminal offense other than the one to which he pleaded guilty. i wonder if there might not be a requirement of some higher

standard of proof, that the mayor has got to establish that in fact those criminal offenses occurred. i agree that overall, certainly on the question of our recommendation and in other decisions that may be made in the case, a preponderant evidence seems the appropriate standard. i am troubled by if in fact the mayor is relying on facts which he claims were criminal acts. then i question whether or not the mayor does not have to prove by some higher standard than merely a preponderance of evidence. i do not have a firm position on it but it is a concern i have

that there are some issues which clearly seemed to be appropriately a preponderance of evidence. if there is going to be a reliance on criminal conduct other than that which the sheriff pleaded guilty. i have some reservations. >> i share your concern. the way i reconcile it is this. we're not tasked with finding whether or not mr. mirkarimi committed crimes to which he has not applied. we are tasked with making factual findings about whether certain actions were committed and whether those actions constitute official misconduct. i agree with you that if we were trying to determine whether he committed crimes that the

reasonable doubt standard with the -- would apply. in light of our task, i find no legal basis to use a higher standard than preponderant. any of their views from the commissioners? >> i am in agreement. we're not called upon to determine whether certain crimes were committed. we're called upon to determine that facts of what happened and determine whether or not it constitutes misconduct and in the civil proceeding, the preponderant of the evidence standard is most appropriate given that is the standard we normally use. at the commission. vice-chairperson studley: i agree with that. we're not making findings, we are making recommendations to the supervisors. that is an appropriate standard. moreover, we have the option

when we get to the point of developing our recommendations of indicating if they meet a higher standard or level of certainty. if the facts warrant. for all those reasons, this seems appropriate to me. it is a fair question but i think our job is a little bit different. commissioner renne: i agree with you when you say we're only fact finders and if we were not required to make a recommendation, to the board of supervisors, i would be in complete agreement. if our recommendation is going to be predicated on a finding that the sheriff commit some act of official misconduct beyond that to which he pleaded guilty, then that is where i have my

concerns. i reserve that as we go along. i just raise it. >> would either party like to address this issue? >> as the commissioners have gleaned from the filings we have submitted, thank you. i am sorry. i could hear myself. i thought i was transmitting. how is this? as the commissioners have gleaned from our findings, we see these removal proceedings as different from any other you might make for any other non- elected official. since the only published appellate decision that we can find on a charter removal

proceedings is the mazzola case. the supervisors at that time got it wrong and were reversed. we look to the state code which has that higher burden of proof and we think particularly in front of the commission wyck ethics, the highest level of due process should be extended to an elected official. that is why we believe that is the appropriate standard because we certainly do not want to have a situation where the determination is made that the sheriff was not accorded that a high-level and any determination you make or the board makes down the road winds of getting reversed. >> thank you. >> good evening, commissioners. i wanted to address commissioner renne's concerns and there are two prongs to the definition. neither one of them is the

definition of a criminal offense. first of all, it can be wrongful behavior, that is willful, by public officer in relation to the duties of his or her office. that does not state a crime. it could be that a crime satisfies that definition, but we are not here and urging a finding of misconduct to prove any sort of criminal behavior. we know from sheriff mirkarimi's guilty plea that he did commit a crime. that is only -- the only way in which the commission of a crime and the plea and sentence that flowed from it will play in. we do allege other things that could be considered crimes but that will be the subject of a separate proceeding by separate fact finders under a separate burden of proof, if indeed that were an option, given the fact that many of the facts and circumstances were already

adjudicated in criminal court and resolved by the guilty plea. i want to make clear that it may be that some of the other contract could be considered criminal. that is not an uncommon situation before the commission. you did not act as criminal fact finders, you act as an administrative tribunal applying the evidence standard to the civil infraction that goes along with four companies the criminal offense. >> any questions from the commissioners or by either party? would you like to address the points with respect to mazzola and the state code? >> absolutely. as we make clear, it is our purse -- position that the charter -- in the mazollzola

case, -- nor did it say what the misconduct had to be. it is true is referred to the definition in the law dictionary that the boaters ended up adopting as part of the definition of official misconduct. any limitation, they're holding, the discussion in the context of that case actually has no application here. the reasons why is in the mazzola case, the issue was the relationship between the alleged misconduct and the officer's position as an airport commissioner. what happened in that case was the airport commissioner who was also a union official and had

been a union official when he was appointed and at some point, his union along with many other unions went out on strike and he recommended the strike that did nothing in his official capacity as airport commissioner. the court held -- held that there was no relationship between his actions and -- as a union official and his actions as an airport commissioner that would be sufficient to merit his removal. when it was emphasizing in office, it was emphasizing the relationship or the connection and the mayor agrees there must be a relationship. that case has absolutely nothing to do with the timing or the misconduct. how does this relate to the government code and to the state removal proceedings? if you look at the government code, you will notice that there were two different procedures

for removal. one of which is the procedure that the sheriff has been talking a lot about. it is called removal other than by impeachment. it does have a process for an indictment and the grand jury and the trial. the other set of provisions, however, is about impeachment. those procedures are much more -- what this procedure resembles. the assembly brings to the senate a charge against an elected state official. the senate holds the trial and the senate votes by two-thirds of its members whether or not to remove the statewide elected official. that sounds like this procedure. in any event, what is most important here, what controls this is not the law under the state code or some other law of

some other state altogether. what controls this is the charter. to the extent that there are holes in the charter that cannot be filled any other way. maybe there is a debate about what to import. we did not find anything about that. we thought it was perfectly clear given the language and the standard procedures of the commission. and the way in -- that these sorts of inquiries are routinely run, it is not mysterious at all. we do not need to borrow an entire set of procedures. >> you have answered my question. thank you. i do not know of others have questions. -- if others have questions. the next item that i would like us to consider and address is the type of evidence to be considered. the sheriff has suggested that we consider only admissible

evidence. the mayor has proposed we more or less follow the administrative procedure act that does allow some here say as evidence to be considered. my view on this is that i am concerned with the use of excessive here say in a case like this. it is hard in a situation where you have adjudicator to or not a jury. the risk of some here say is not as high as it would be in case of a jury. i come out -- my view is we should allow some here say evidence. i do not think we should rely on the rules of evidence. i personally would caution the parties that we are not going to -- i would not be persuaded by

if the only evidence on the matter was here say evidence. i welcome the views of my fellow commissioners. >> where do we draw the line if we're going to have some here say. are we going to decide on a case by case basis as it comes up? >> could you repeat the question? >> where do we draw the line on hearsay evidence that is to be admitted? do we decide on a case by case basis as it comes up? >> any other commissioners have views on that? >> having spent my life as a litigator and familiar with the hearsay rules, i find myself

very close to the chairman pose a position. i would be a reluctant to make any decision which relies primarily upon here say and what -- hearsay and would caution the parties, i would try to exclude as much hearsay as possible and realize it will have little or no influence on my decision. i do not think you can do it any other way than on the case by case basis when they have offered by affidavit or offered by live testimony. an objection is made by one side or another that we would rule on it at that point. >> i agree. >> i do, too.

it does have to be taken on the case by case basis. we would not otherwise be able to rule in a vacuum or exclude all types of evidence in a vacuum. and i agree with my fellow commissioners that i give probably little weight to something that is presented as hearsay evidence. we can deal with that on a case by case basis as it comes in or is offered. >> would either party like to be heard on this matter? the next item i would like to address is the issue of anonymity. we have reviewed the briefing by both parties. in my view, i do not see the authority for acquiring unanimity. . to give early in light of the fact that the charter specifically states what

percentage of the board of supervisors is required to vote in favor of removal and is silent on what goals they commissioners need to take. our standard rules should apply here. the majority vote would be sufficient to make a recommendation to the board. and i welcome the views of my fellow condition -- commissioners. >> i agree completely. >> i think we are unanimous. >> would either party like to be heard on this point? >> we have submitted our papers but we do object to the commission making its recommendation on anything less than a unanimous vote. we disagree with the mariposa position that the commission is somehow in an inferior position

to the board of supervisors. it is true the board will decide and must vote by a super majority, we believe they will take your -- your recommendation and given great weight. that is one of the reasons why, along with the burden of proof we have proposed, we believe your vote should be unanimous on the recommendation. >> don't you think it would have greater weight if it were unanimous? >> likely set. >> thank you. i am not sure what there is to say. >> i would like to make the brief observation that you are sitting here as a quasi- judicial body. a panel of multiple judges even in a criminal matter reaches its decision by a simple majority vote. there is nothing untoward or improper in that. >> the next issue i would like

to address is the specific witnesses that we would need to hear from. i would like some discussion and would expect this to be addressed by both parties. my initial reaction to seeing the mariposa list was that i thought it was -- the mayor's list was that i thought there were too many. upon seeing the response, i was mostly in agreement until i saw that the sheriff listed 17 witnesses himself. you said earlier that you think there are two witnesses that need to testify. are you saying -- i should not take the fact that you listed many of the same individuals as an indication you are -- you do not object to this witness is testifying? do i have that correct? >> we listed the witnesses out of an abundance of caution.

we believe that many if not most of the witnesses proposed by the mayor would only have a relevant evidence to offer. and we would likely not call most of the witnesses that we listed. we certainly think that declarations would suffice for all but one of them. that is where we stand. >> to the extent that live testimony is required, i guess we have decided that. we have more or less decided that. here are the people from the list that i think we definitely should hear from. the sheriff, mayor lee, ms. lopez, ms. madison, ms. haines, mr. mertins, and mr. hennessey.

i think the last few people are people who i could see potentially coming in by declaration if they must testify. here is how i would like to proceed with this. i welcome the views of my fellow commissioners on first, whether there are folks i have mentioned who we think there is no need to hear testimony from. secondly, if there are people who why it -- who i committed to and i would like -- who i omitted. when the parties address this, i would like to hear from any witness you