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 think we need testimony and who is not on the list that we discussed, i want to know what charge that testimony would relate to. let me open it up to my fellow commissioners. anybody on the list who you

think is -- we do not need to hear testimony from or it is an open question that we should reserve until later. commissioner renne: when you went through this list and said the witnesses who you thought would possibly -- we possibly should receive testimony, were you referring to live testimony or by declarations subject to cross-examination or both? chairperson hay commissioner hur: the individuals i would like to hear from is the sheriff, the mayor, and ms. lopez, if she's

available to testify. others i think could come in by a declaration. if a declaration is submitted, i think we probably need to open up that witness to cross- examination by the other side. it is not necessarily the case in my mind that a witness who submits a declaration would not appear. i think they likely would appear if there was any controversy as to their testimony. commissioner renne: i wonder if i could ask a question of the city attorney and the sheriff's council if they know the answer. when the charges were filed and there was a preliminary hearing, wasn't there live testimony and wasn't there a transcript prepared? >> are you referring to the criminal charges? commissioner renne: yes. >> i believe there was not a

preliminary hearing. there was a whole set of various proceedings in criminal court. i do not think they included a preliminary hearing. i may be incorrect on that point. >> i may be able to shed some light on this. it was not a felony proceeding. there was no hearing where witnesses would have to show probable cause. there was some pretrial hearings but i think there was limited live testimony at those hearings. >> he is correct. >> do you know who did present live testimony at those hearings? >> i know that ms. christofor--a flores and ms. lopez may have testified extremely briefly. generally speaking, i do not

think there was any testimony. on the merits during these proceedings in the criminal action. commissioner renne: thank you. commissioner hur: other views of the commissioners on this issue? chairperson hur: perhaps we shiould -- should invite the parties to address this.

we welcome other side -- either side to come up first. >> thank you, chairman. from our standpoint, we do not want to have so many witnesses and by stipulation, we may be able to eliminate a few of them on background matters and we have been working toward doing that. our other proposal would be to speed along the proceedings by proceeding by declaration. rather than having a ruling from the commission that we do not want to hear from this witness, perhaps what we would like to see it would be that witness simply testified by declaration and there be an opportunity to cross-examine but perhaps a time limit on cross-examination so we could move things along and stay focused. there was one witness i think that we would want to have that probably would need to come for live testimony, that would be

ms. williams. she was another one of the people who ms. lopez spoke with on the fourth and observed her demeanor on that date. chairperson hur: you agree that the other people we need to hear from live for the sheriff, -- are the sheriff, the mayor, and ms. lopez? >> mr. merton and -- sheriff hennessey. we would like to get that testimony before the commission. we do not want to lose the opportunity to get chief still's testimony. to talk about how a three-year term of probation will affect the share of's ability to perform his duties and how it might create a conflict for him. chairperson hur: i appreciate

your concern. with respect to witnesses appearing by a declaration and we should address that but i want to focus on live witnesses right now. you were saying that the people you think we need to see live r. michael hennessey, the mayor, ms. lopez, mr. merton, and ms. williams. during have that correct? >> i do not think the -- we need to hear from a share tennessee. >> i thought you did. >> i was filling out the list. he probably would not be on the list. we do have our subject matter experts. chairperson hur: what is ms. williams going to offer to us

that is relevant to any of the charges? >> we expect ms. madison's credibility to be attacked. ileana lopez told a consistent story. the fact that ms. williams is telling both of these witnesses a similar story career breaks m -- corroborates ms. lopez's story. areas important that her testimony be heard on that matter. -- is important that her testimony be heard on that matter. chairperson hur: what is she going to say that is related to the dissuasion allegation? >> she received either e-mail or text messages telling her to not go to the police, what i told

you earlier was confidential which is different from the conversation she had with ms. lopez at 1:00 p.m. >> what is the connection between the statements and the allegations against sheriff mirkarimi? >> that he encouraged ms. lopez to dissuade ms. williams. chairperson hur: please. we welcome the public here and many of you waited to get in. it will have your opportunity to speak. please allow us to go through our proceedings. i would appreciate it. you have a witness that is going to make that connection? between suggesting that the sheriff' encouraged ms. lopez to dissuade other witnesses? >> it would be the inference

that would be drawn from the fact that ms. lopez so dramatically change to position between speaking with ms. williams at 1:00 p.m. on january 4 and 7:00 p.m. that night. when she spoke with ms. williams at 1:00 p.m., she was expressing a fear for safety. she told ms. williams she was glad that ms. williams would be able to hear her if she screamed. in that -- when the evening rolled around, ms. lopez's expression toward ms. williams had changed completely. during the intervening time, there were numerous communications between the sheriff and ms. lopez. mr. merton testified to getting a message from buzz lopez to dissuade him -- ms. lopez to dissuade him from testifying and he heard sheriff mirkarimi in the background. that the sheriff was aware of these dissuasion efforts and

participated in them. chairperson hur: in -- is there any more in respect to ms. williams' testimony? thank you. we will invite mr. wagner or mr. kopp to address this issue and deal with a declaration issued. >> we would concur with what chairperson hur state. th- -- stated. that -- i don't thnk that -- think that live testimony would serve any other purpose. i want to respond to something that mr. keith just said. this red herring of witness dissuasion has consumed an incredible amount of time and

effort and energy and it does not -- should have no place here. what mr. keith just told you is not true. mr. mertons was interviewed by the police and was asked, did it sound like the sheriff was feeding his wife lines to tell you, to try to dissuade you? the response was no. it sounded like he was on another phone call together. this has been a complete waste of time and an effort to publicly tar the sheriff with something that is not just on provable, it is false. -- unprovable, it is false. chairperson hur: cat i invite you back up? -- can i invite you back up?

the list you provided was longer than the list i provided. i apologize if it was not clear. who we need live are -- i put together a list of 3 witnesses we would need. the mayor, the sheriff, and miss lopez. -- ms. lopez. council has added mr. mertons and ms. williams. who i want to address, lynette haines, and ivory madison who was also on your list. do we need to hear from ms. haines live? >> i am not sure can answer that question. it depends. we're hopeful that ms. hens will provide a declaration. we know that she has been concerned about some of the efforts that the mayor has gone

to to try to interview her, subpoena her records, etc. i am hopeful we will obtain a declaration to provide you. depending on what the commission thinks of such a declaration, you will be in the best position to evaluate whether or not you need to hear from her life. chairperson hur: ok. ms. madison? >> we will not offer testimony by miss madison. we will make the decision after we see the declaration if we want to request she appear for cross-examination. we do not think she is a necessary live witness. chairperson hur: you do not intend to call anyone who is not on the list except for the sheriff? >> we believe the central live witnesses are the sheriff and the mayor. everyone else is subject to whatever information is provided in their declaration.

as far as the mayor's witnesses go, we may perceive declarations and agree we do not need a cross examiner. we can argue our case based on what is in the declaration. i am not trying to evade your question. i am telling you i cannot necessarily answer it before i see the contents of their proposed testimony. >chairperson hur: when you list that many people in your list as affirmative witnesses, it does create some confusion but i get it now. is ms. lopez going to testify? >> we hope to have her testify. she is in her native country. her father has cancer. that is an open-ended question. even if she remains there, we're hopeful if we can make arrangements for her to testify remotely via skype or facetime or some other form of communication. we would like to have her

testimony whether it is live or by video. there are family considerations are going to come first. chairperson hur: ok. any other questions? one other question for you. what is your position on the relevance of kelly williams? >> probably no relevance. chairperson hur: how is she different from ms. madison, if at all? >> i do not know if ms. mattison has will and testament. the sheriff has