that is number one. the second prong, because the manner or language of the statute anchorage arbitrary and preliminary enforcement. under both of those, can we understand what conduct is prohibited, and does it lead itself to arbitrary and discriminatory enforcement? under both of those, we would say that 15. 10105 is vague. how do we tell it the application of an this is enforcement? we look of the context and consistency. how work other examples of alleged wrongdoing dealt with by the mayor, the city, and other enforcement bodies? was the mayor's suspension arbitrary? was a discriminatory?

was it consistent with how this mayor has treated other cases of alleged wrongdoing by city officials? was it consistent with how other mayors have handled similar cases? i respectfully submit to you that it was not consistent with how this mayor has dealt with other cases of alleged wrongdoing and not consistent with how the city, how other mayors have dealt with cases of alleged wrongdoing by elected officials. this was only the third time in the history of san francisco that a sitting mayor has suspended an elected official for alleged official misconduct. the first time was in 1932. he suspended the public defender for murder. mr. begin went on to spend 25 years in federal prison. the second time was in 2007. the mayor suspended the supervisor for perjury and extortion, both felonies. he is in prison today. the third time is in the present case.

merely suspended share of mirkarimi -- maylor lee suspended sheriff mirkarimi. he spent no time in jail. he was cited and released. you have three very serious felonies involving very serious prison time, and in this case a low-level misdemeanor and no jail time or prison time. the facts could not be more different. it is very inconsistent to how other mayors have dealt with alleged official misconduct. >> mr. wagner, and those other cases you are referring to, it's a day off -- and called the sheriff himself or herself? >> no, the first case was a public defender and then a public supervisor. >> do you agree with me that our

job here is a two-step job, and that his first to determine whether or not there was misconduct that reaches a level of official misconduct under the definition, and if we say yes, there was, we still have the question of, did the mayor exercise his discretion and reasonable manner? >> yes, i absolutely agree with that process. as to whether or not the mayor's decision to disband was a reasonable exercise of his discretion, you heard from opposing counsel, and it is absolutely true, there are instances where the mayor must suspend. it is not discretionary. if a person is convicted of a felony crime, and if this commission then determines that that is a crime that warrant removal, then the mayor must

remove from office. that tells us right away there may be felony crimes involving moral turpitude that would not warrant removal from office. however, i agree with the mayor that it is a discretionary decision, and when the mayor came before you and testified before you, he was asked directly, are there other crimes that might warrant suspension? for example, a dui. the mayor said i do not know. i have not thought about it. if he does not know what of their crimes, misdemeanors would warrant removal from office because they would constitute alleged official misconduct, then how can any official be on notice? if the mayor does not even know what other misdemeanors would constitute -- warrant removal, that would warrant suspension. how can anyone be on notice? >> council, in determining

whether or not the mayor exercised his discretion in a reasonable manner, can the mayor and for this commission take into account what the elected official did between the time that the alleged misconduct occurred from the time he is suspended from office? >> can the commission take into account the suspending authorities conduct? lpor the removed official -- >> in other words, let's assume in the case of public official, it's an act that would constitute official misconduct, and between the time he commit the act or she commits an act and when the mayor exercises his

discretion, can he take into account what happened in between in regard to that public officials conduct relating to the investigation for example? >> i believe the mayor can take into account. he or she can exercise discretion. the question is, is the discretion reasonable? the mayor can take into account any kind of conduct. the question is, was it reasonable or is it reasonable to suspend an elected official for the alleged misconduct? whether it was that misconduct that occurred in one point in time or how the accused official dealt with that afterwards. >> i would appreciate your explaining what you think our role and what the ethics committee responsibility is. some of what i am hearing sounds like this palawan's -- belongs

in a court of certain circumstances took place and our job is to make a recommendation. >> thank you, commissioner. i agree that question is a very important one. in fact, you probably know we went to superior court prior to the commission process getting started and make the very argument that 15 point.105 is v. the judge of the times said let the process play out and the judge said let it play out in if you did not like the result, come back and see me basically and let the ethics commission decide whether or not it is fake or the other merits of the case. as to your recommendation and your responsibility under the charter, i would respectfully submit that if you do find

15.105 is big, you cannot make a recommendation for removal. i do not see how you could do that if you find a lot itself is unconstitutional. >> well this will be subject to our discussion, i did not think determining constitutionality is what i signed on for as a commissioner, and i do not think we have that authority. i think we have the authority to do something, and whether we can or cannot make a to whether it is fake. -- is vague. so i would really like to know what you think we do today that is related to the vagueness consideration or whether you are alerting us to an argument you made.

take the>> well, the charter res the commission to make a recommendation. it does not say which laws you may consider that substantiates or is the basis of recommendation. i would respectfully subject that the commission can take into account its own interpretation of what the lot is, and the facts are to make its recommendation to the board. if that does not involve a finding for conclusion of all as to 15.105 that is certainly with the commission's purview. i believe if wanted to make such a finding or conclusion of all, that would also be in your purview. i would like to move on and wind

up here and then turn it over. a few other facts that we know of. i talked about the inconsistency in terms of san francisco history. i would like to talk for a moment about the inconsistency of how the mayor has filled with other alleged wrongdoing. the current department of public works head was found to a committed by the city attorney's office to have committed many acts of wrongdoing. the mayor did not suspend, did not remove from office, but rather promoted the individual. against the strenuous objections of city attorney. >> is this anything we have in evidence? >> i submitted it with the brief. there is the memo. i do not have the date in front

of me. beyond that, last year this very commission recommended -- >> i am sorry to interrupt. that was submitted as an attachment to an earlier brief. it has not been submitted before the committee. in my view, the relevance of what you're talking about is similar that it is not in evidence. this is mostly illegal, so i would be permitted to allow mr. wagner to proceed. if there are objections from my fellow commissioners, perhaps we should discuss. >> i can withdraw the comment. the point holds that this mayor has treated this case

differently than he has treated other cases. beyond that one other fact show he used his discretion? the fax kept changing. he said he was suspended the mayor for a plea to misdemeanor 236. then use it was the plea plus domestic violence, plus maybe witness persuasion. maybe there might have been witness persuasion. the amended charges through in the gun allegations as well. the mayor testified he'd talk to ivory madison but never talk to miss lopez, even after in courage to do so by the sheriff and former mayor. the mayor admitted he suspended first and ask questions later. he submitted a declaration that was designed to poison the well. finally, at the very last hearing week requested subpoenas

regarding whether the testimony was truthful. all of those facts, the charges changed come to the mayor talked to, when he talked to them, the fact that he never talked to ms. lopez. the questions about his credibility and trachoma's goes to whether he reasonably exercised his discretion. i respect -- respectfully submit to you he did not. at that, i would like to turn it over to address the definition of official misconduct. >> thank you. >> good morning commissioners. i want to start off by addressing the point that you raised about the comment about the dog and pony show. that was not intended to affect on anything you or the other commissioners have done. in fact, we appreciate the

effort you have made. we've viewed this by the mayor. if it offended anyone, we apologize for that. it is our view and as strongly held view. we have objected to much of the evidence they have wanted to put before you, because we do not think it bears and relationship to what your task is here. that is the explanation for that line. >> i would say the remark struck me to being a kid by the statement made by your client that this is a private matter. a certainú. >> i want to strike the record and make it clear we understand and appreciate the commission must carry out its duty under the charter. i do want to discuss what we

think the meaning is of official misconduct, and that leads me to discuss the case that link. one of the things about rizola is at that time in 1976, there is no doubt in my mind that the mayor and members of the board of supervisors were intelligent, conscientious public service and took their jobs seriously. i do not think anyone took it lightly, and yet they got it wrong. mr. mazola was able to clear his name several years later when the court of appeals reversed. he was already out. that points out the perils of making a recommendation for removal and the board voting to

remove, because this is are rarely-brought proceeding and a proceeding that can have the effect of contravening the will of the electorate. we see this type of proceeding and the law that governs it as completely different from many of the cases that have been cited to you by the mayor and his attorneys, some of which are from other jurisdictions. some of which are from other procedural settings. there is a major difference between cases that discuss termination of hired employees and the situation here, which is the attempted removal of an elected official. >> is it your view an elected official should not be subject to the same standards that an employee should be subject to was in a similar position? the people who work under the sheriff would be subject to the

employment standards that some of these cases discussed. why should the sheriff not be subject? >> i just do not think you can import principles of law from other cases that deal with administrative discipline of the employees. i do not see this as an administrative hearing. >> what is the legal or logical reason? >> i think you can look to them. you could consult them, but i do not think they should be the primary authority. our contention has always been the primary authority is the rizol mizola case. now, we recognize that at least one commissioner has expressed the view that maybe it does not apply because the chartered definition changed since this case was decided.

but, the current definition of official misconduct under the charter draws almost entirely from the language used in the opinion. the two points that are most critical about that opinion from our perspective our number one that the official misconduct has to occur while the official is in office. much of what the mayor has alleged occurred before the sheriff was sworn in. they have presented you with a parade of horribles about why this cannot be the correct interpretation. they have said if an elected official is elected and then at roms bankbs banks, we cannot hat situation. that cannot be the definition of the charter. there has to be a way to

address pre-swearing in testimony. sorry, not pre-swearing in testimony. pre-appearing in contact. the charter is an imperfect document. i would like to make the points that there is no removal provision for the mayor. if the mayor is elected and before he is sworn in and decides to go rob banks, there is nothing in the charter that will allow him to be removed for official misconduct. w3the chartézan be amended. they want to apply this pre- office holding authority to suspend, but it is not there. this case specifically says official misconduct is misconduct occurs while you are in office. that is one of the reasons why the case -- >> this definition that we have

before us now was not before the court in mizola. presumably it was driven -- written in drafted after the decision. the first part of it does track the mizola opinion, but the second part would seem to be filling in at gap that it left out, and that is or condo that falls below the standard of decency, good faith and write access and required of all public officers. so that one could say reading mizola what the charter drafters were concerned about that if we limit it tot( what it said, we o not get the broader coverage. we do not want public officials to have conduct, which falls below some standard. you are arguing that standard is

so big it cannot be enforced, but isn't that the logical reading and why it does not control us, because we have language that did not exist. >> my answer to that, there are a few ways to respond, and i will try to address those points. i agree there is at least one word in the current definition that was not mentioned, and that is decency. it is our view, and i believe the mayor has conceded that option 2 as proposed by the chair that makes the most sense that has to be applied. the parties to agree that you have to couple the decency clause with the wrongful behavior and relationship of duties.

we go one step further than the mayor, because we believed for there to be official misconduct it has to be wild they are either performing the specified duty for failing to perform those duties, and there is not a stand-alone morals clause that can apply to whatever a public official does in his or her private life. so there is another point i wanted to make on this subject. and we do think mizola remains good lot of these critical issues. one, you have to be engaged in the performance of your duties to be engaged in official misconduct, and that's misconduct, whatever it is, has to occur while you were in office, not in the time when europe and elected but not sworn in. >> can i interrupt you on the

while in office? >> in mizola, was a mean performing the duties of office 9ç8or because he was official position yet? my understanding is he was a commissioner at the time. i do not think they're talking about the situation where you are pre-swearing in. they're talking about the situation where you are not performing the duties of your office. >> i agree with you. that is correct. >> this does not address the timing issue? to go it does in surveying the various legal authorities that the court of appeals decision surveyed. as well as some other state cases. they are cited there.

it gathered together all of the legal authorities, all of which deal with public officials who were in office at the time there is some misconduct that is alleged. to go was this really addressing the commissioner, versus the job as a business agent for the union. that is a relationship question not the timing. to g>> in our view, there were o main issue is decided. i'm very issue is whether or not there was any relationship between that and the actions strike. that is correct. however, before they could even reach that point, they had to address the challenge, and the

way they rejected the void for vagueness challenge was by referring to the long-standing definitions of official misconduct. so when the court looked at the three cases i just mentioned, as well as the other legal authorities they decided it is not big because there is an understood notion of what official misconduct is, and what it is is conduct that occurs while you are in office. to address the question about did they make any determination as far as a pre-swearing in time period or post-swearing in, no, they did not. i do not think the mayor has argued it is dumb. it forms the basis of the opinion. take do>> then the language of e

charter was changed by initiative. how do we know a changeù was in order too must bel5@ in office, or to make clear that was not with the voters intended? the fact that there is a change after something happens does not tell you in which direction they intended it to be and the words in relation to the duty. there were other words available if the initiative had wanted to say while you are holding that office or conducting that office. how do we know which direction? it is difficult to tell, you have to adopt the interpretation that favors the accused in this situation. if there is an easier way to answer that, in the statute has to be harmonized with other bobs impossible, if it will not do

violence to the interpretation of the statute. i think you have to look at the current charter definition of official misconduct that was enacted after mizola and draws from opinion to say that the drafters, whoever they may have been, were well aware of what mizola had to say about the issue and has to be interpreted in a way that is consistent with this decision. there is one other point i would like to make. i am certainly willing to entertain -- >> can i stop you while we're on this point. is there any justification for why this should not apply to an elected official who was not yet sworn in? to say the charter is not perfect and the people did not vote in a provision that was perfect is not very compelling

to me. i want to know why we should take a restrictive view of public official that would absolves him or immunize him from being suspended from official misconduct prior to his swearing in. >> there is a very simple answer, the primacy of the will of the electorate. there is a provision in place, called the recall that can be used to remove a public official that the voters want to get rid of. that is a democratic way to do it. admittedly it can take time, because you have to wait six months until after the official is sworn in to start gathering officials. it can take close to a year to remove the public official, but that is the democratic way to do it. this is far too susceptible to politics. to g>> the voters knew all thatn

theory. they understood there was a recall option available and said we need this. it is not a week or the supervisor or the state said you need to do something different and override the recall provision, why does this not harmonize with the voters sent we want an additional tool or process, and we will design and put it into place, because in our view of the recall is not sufficient? whenever the reasons for why they wanted to do this, it is the voters decide we want another tool, not some third party or our determination that adds this. >> well, to be fair, i do not think they created this for almost 100 years. the power to remove for official misconduct has been in