was an actual criminal misconduct, and prior to that, mizzola was the only previous case. >> i believe there was one in 1932. >> i guess what i was trying to say earlier, in terms of the fairness issue -- you have this description, or this definition, of official misconduct on the books or in the charter. but the fact is, it is not used very often. it is used subjectively, or even arbitrarily, dare i say. it is not a matter of law that because somebody in elected office misbehaves in some way that they would automatically be charged with official misconduct and then go through some kind of process, be it

something before the ethics committee, or even criminal. it is criminal, that is a whole different matter. i guess your concern is you do not want this to be the next time this comes up. you want it to be clearer, and not as murky as what we have had to deal with. but there is a lot of personal misconduct that goes on that falls below the standard of decency. some of it has already been referred to in this room. but nobody did anything about it. nobody said anything or brought it up. i do not know what bearing that has, exactly, on how we should decide this definition. it seems to me it still needs to be as broad as possible, because that is the only way it is going to be used, if i understand that.

chairperson hur: i think you put the mayor in a tough spot, if it is too broad. every time he uses it, he will be accused of using it -- because it is so vague, it will always be subject to that challenge, and he may always feel he needs to bring it up, because he does not want to be looked at as letting official misconduct go. on the flip side, the defendant is always going to say, "look at these people who do all sorts of bad things. why did you choose my bad act?" it may not come up often, but it may come up more frequently if we do not come up with a bright line rules. i think we owe it to the public to really try our best to come up with an interpretation that is clear and could be followed,

even if it is not perfectly bright line. >> just to say parenthetically -- i do not know if this is appropriate or not. often, when there is a case of misconduct, usually, it is personal misconduct, in the political arena across the country, usually those individuals, on their own, resigned without having to force any kind of public, you know, process, such as we have had to go through. we know of many many very well known cases of misconduct, but those individuals at least resigned in a timely manner. >> or took more affirmative steps to mitigate or demonstrate

they could cooperate in other ways, reflecting the serious mess of the problem. -- the seriousness of the problem. >> i am not necessarily advocating this as the rule to adopt. but one fact that was compelling to me, which i think differentiates from the examples the public gave of what other types of personal misconduct did not amount to charges, is the fact that this resulted in a criminal conviction. when we took in the evidence to look atñii] the facts, there wea lot of disturbing facts that went along with that criminal conviction. that is what i find compelling about this, that perhaps differentiates, when members talked about affairs, and so

forth. that is the distinction that i see. chairperson hur: so that any criminal conviction would inherently be relating to the duties of the office and fall below the standard of decency? >> there would still have to be an inquiry about what office that was, what the duties were, and what relationship that office might have. i am not saying it is automatic, necessarily. i am saying it is a factor to definitely be considered. chairperson hur: i think that is interesting. what do people think about taking a short break, and then maybe reconvening and sharing our views on the ultimate issue?

ok, let us take 10 minutes. >> we are back in session. before the break, we had been discussing our views on the legal application of the facts in this case. we have had, i think, a robust discussion. i think at this point it may be useful to take a straw poll of how various commissioners would apply the law to the facts in this case, assuming option two. then, perhaps, we can address option one after that.

yes, so just to be clear, option to -- optioned two -- the parties are missing -- you have the options. can you put that on the overhead? option 2 below, please. thank you. maybe we can make that a little bigger. [laughter]

>> he is trying. [laughter] tap it when it gets to echo mr. keith, didn't you effectively use this earlier today? ok. >> well somebody stands here, he doing that.

chairperson hur: i am not sure anybody can read that. >> maybe somebody could read that out loud, so they understand what the language is. chairperson hur: sure. the way i read option 2 below is official misconduct. "official misconduct means any behavior by a public officer in relation to the duties of his office, will fall in its character, including any failure, and neglect, or refusal by an officer to meet duty required by law, or conduct that stands below decency, good faith, and right action required of all public officers, including a specific conflict of interest or violation of a governmental ethics law." commissioner renne: that is option 2 below? -- option two?

chairperson hur: that is option two . if you will indulge me, i will summarize my view. i think you understand it. perhaps i can give one last shot at explaining it. i think this charter provision was meant to be narrowed. i think it provides the mayor with an extraordinary tool that can be very useful and very consistent with how the public intended it to be used. but given the force of the tool, i think that people wanted it to be interpreted narrowly. to me, the best way to interpret this provision is to have as clear a line as we can as to what it means to relate to the

duties of his or her office. while i appreciate suggestions that perhaps this could be limited to unlawful conduct, and thereby create some kind of line, that we could import rules that are used in the employment context, i think the only principled way to limit this provision is to have a direct nexus between the wrongful behavior and the relationship to the duties. i do not think it can be limited to unlawful conduct, given the purposeful use of the word "wrongful" rather than "unlawful." i do not think it can refer to multiple standards when it refers to only one.

the conduct, in this particular case, i think was egregious. for all those domestic violence advocates who spoke today, i appreciate your attendance. i do not want you to interpret what i am saying to suggest that domestic violence is a private matter, or not a very serious matter. but private and public does not mean the same thing as official. i firmly believe that the people intended official misconduct to be something limited, because of the concern that it could be used in the political process. i also understand that the

evidence likely showed that the sheriff is going to have a hard time performing his duties, going forward. a sheriff who commits an act of violence, i think, in my mind does fall below the standard of decency i would expect of a public official. but, again, i do not think it is our job to determine what his level of efficacy is going to be, going forward. i implore my fellow commissioners to take a narrow and principled view of this clause that will enable those who use it, going forward, to apply it in a consistent way. there is a reason why we have only gone through this once. i do have concerns that a broad

reading of this statute could potentially lead to hearings like this, that are potentially used for improper purposes. i welcome the views of my fellow commissioners. >> i do agree that there must be some relationship to the office, that the wrongful behavior has to have some relationship to the office, but i do believe the intent of the voters was to add a clause that was not there at the time of the mazzola case. they knew what the law was at

the time, and they chose to add a second clause. i would read the clause in a very similar vein, in a narrow vein, as relating to the office, but i would read the second clause as conduct that falls below the standard of good and right action in plied as required for all public officers. i would read it, as applied to this case, conduct that falls below the standard of decency implicitly required of the sheriff. that is how i would interpret the provision. chairperson hur: would you find official conduct occurred in this case? >> yes, as to one and four, the physical conduct, basically.

commissioner renne: i have expressed my view as to what i think that second provision provides. i think the voters would be shocked if we were to say that a public official who pleaded guilty to false imprisonment had not engaged in official misconduct. clearly, a public official who has pleaded guilty, particularly given the circumstances of this case, that that conduct clearly falls below anybody's standard of decency, good faith, and right action. i would believe that is what the overwhelming majority of voters

would say. that does not address the second part we have talked about. for us to say that a public official who has pleaded guilty has not committed an act of official misconduct because it was not directly in performance of his duties, but it took place in a domestic setting -- i clearly would vote to recommend that we find that there was a violation of the section of official misconduct. commissioner studley: i think your points are very well taken. the potential abuse is real. i look, though, at the way the

voters developed and amended this, and think they did not mean to create a very specialized and narrow tool. i look at the fact that it says "any wrongful behavior," when there are other words that could have been used to talk about degree of wrongful mess. and it falls below the standard of decency. they could have said "well below" or "egregious." i take that as saying something about the voter expectation that we were setting a high bar, and that they wanted to create an effective tool, and balanced the risks you werei creating a series of protections. that is where this cannot be effectuated by the act of a single officer.

it is not just the mayor acting alone. there is a three step process that i think is important as a series of checks and balances, different rules and different kinds of expertise. there is no doubt, and the public has made this point many times -- there is a significant investment in time, in attention, in disruption, in risk in doing this instead of something else, that is a high public cost of trying to maintain the standard set by the public. we may become more official -- more efficient if this comes up again. i think there is also a lesson in this that a mayor would act very carefully in using this tool, because there are extra-

legal considerations -- public reaction, press considerations -- that would also mitigate against overuse, or at least suggest caution. i will cut to the chase. for me, i would find official misconduct under option two. i think there is significant relationship between the standard and the duties of the office. i may be reading the case a little bit differently, but it is partly the same with commissioner liu. when i said the law was different than it was, it means the addition of part two must mean something, or the voters would not have revised to add it later. there you are.

commissioner hayon: i am willing to support option two, a somewhat more narrow definition, for the reasons you have advocated. i appreciate all of the thought and effort you put into the thinking behind all of these options, commissioner hur. it is a formidable challenge, and you have been more than up to the task. as a layperson, some of this can get a little bit market for me. with this definition, i do see that there is a relationship to the duties of this office of sheriff, and also that it is behavior that falls below a common standard of decency. domestic violence is something

we take very, very seriously. just because it was not the most extreme form does not mean that it is not domestic violence. the sheriff is the head of a law-enforcement agency. i do not think the sheriff should be an example of reform to justice -- reformative justice. the sheriff should be someone who follows the letter of the law, someone we can all emulate. i would certainly feel that this has been violated. chairperson hur: ok, i think probably -- i appreciate the views of my fellow commissioners. i appreciate also that i am

clearly in the minority here. i think they are very informed and wise use. i will say one thing, in response to commissioner studley. you are right. the language is all over the place. it could be interpreted as the people wanting to be broad. one reason i think people did not want to be so broad is because the power it gives the mayor to suspend an elected official without pay while this entire process goes on, i think, is pretty in store -- pretty extraordinary. we might become more efficient, going forward, but it is still going to be disruptive. i want to protect future mayors and elected officials from a provision i am concerned will be too vague to be applied. but i think we have pretty much

settled whether or not official misconduct occurred. i think the next thing we should discuss this is what our next recommendation should be, and whether the recommendation will include a request that the sheriff be removed from office or not. i am going to put you on the spot. is that within our purview, to make a recommendation of official misconduct and whether approval is appropriate or not? >> the charter says the ethics commission should make a recommendation as to whether the charges should be sustained. i think that is probably open for interpretation, as to whether there is two elements of that. whether there is a finding of official misconduct, and whether

that could result in removal from office, although a finding of official misconduct, the tractor seems to presume, would result in a removal from office. being a lawyer, it could go either way. you certainly would be within the charter to make a recommendation that the charges be sustained, and leave it up to the board of supervisors to decide if they agree with you, and what the penalty is. if you want to make a recommendation to the penalty, i think you are within your right to do so. commissioner studley: the page goes on to say that when any city law provides that the violation of the law constitutes official misconduct, it may subject the person to discipline and/or removal from office. that addresses a very particular

circumstance. when a violation of law includes within it a determination that if this ever happened this would be official misconduct -- as to those, it says discipline and/or removal from office. is that the only reference to a range of different results? even if it is, might we import it to say removal from office, or -- up until now, suspension without pay is not mandated. the mayor could have suspended with pay. does this give us authority or a reminder that if, in those circumstances, there is a range, should we consider that we can recommend a range, if we find official misconduct, apart from this mechanism which is inherent within the law,

expressing the violation? >> i guess i would read that sentence as applying to a specific violation of a law that provides that a violation of that law equals official misconduct. the section that gives the mayor the power to do what he did in this case gives him the power to suspend and remove. not necessarily to suspend for a limited time, or to do some lesser -- impose some lesser consequences then removal. there is another section that provides for automatic disqualification from office, but i am not sure that really informs you here.

commissioner liu: i throw this out just for consideration. the charges are that he be suspended, based on engaging in official misconduct. the charges and asked that the board of supervisors, upon a vote, sustaining the charges, that the sheriff be removed from office. i am not sure the charges contemplate that we determine the ultimate penalty. that is for the board to decide. chairperson hur: i almost read that as suggesting that we should make a recommendation as to removal. anything they have to sustain seems like it should be something we recommend on, although i think it could be

read either way. >> it does say that if the board sustains the charges, the officer shall be removed from office. perhaps we are just parsing words. it may be, theoretically, that you think there is a realm of official misconduct that does not justify removal from office. that probably also means you should not sustain the charges. recommending sustaining the charges, it seems to me you are recommending removal from office. t(chairperson hur: are you sayig that we could find official misconduct and recommend the charges not be sustained? >> before tonight, i had not thought of it as a two-step inquiry. before tonight, i thought you would pass that