commission has asked the parties to address in interpreting the charter. the legal basis for removal is met. the sheriff seems to argue that even if i acted wrongfully and terribly under the law, a technicality permits me to continue in office. that is not the case. i have prepared for the commission something akin to the jury instructions one might have before a civil trial. if i could prevent -- if i could ask my counsel to provide this to the other side as i provide a copy to the commission. >> you may want to zoom in on that a little bit. >> i will. the >> thank you. -- >> thank you.

>> what this document is, it is the first sentence of our misconduct charter provision. the commission was presented with option 1 and option two in the last hearing. this is very close to option two. the big question i have sat out and the answer is, does the official misconduct have relation to the duties in office? it does. but the dispute is not about that. it is about what that relationship is. that is what the legal argument the sheriff is making is hinging on. the share of claims it is not there, but it is. -- the sheriff claims that it is not there, but it is. >> is unsure reading of option two really too restrictive -- it may make no difference in this case, but as i read it, it is talking in the destructive --

disjunctive. the first talks about the conduct relating to the offense itself. the second says that conduct below the standard of decency, good faith, and right action impliedly required of all public officers. there is nothing in that clause that says the misconduct has to relate to the office. for example, you would agree, would you not, that if a member of the board of supervisors became aware that another member was engaged in child molestation, which clearly has no relationship to his office, but chose not to disclose it and to cover it up, that would constitute a violation oflp the official misconduct act?

>> that is an issue that i am glad is not before us today because it presents a very troubling question. we have serious misconduct that reflects on the moral and ethical judgment of an officer. and has a duty to report that. there's obviously a duty implied under law based on the trust that individual holds toward that -- toward the city to maintain the standard of conduct of the body. the reason why that seems like such a difficult hypothetical to us is because it is hard to say, well but supervisor has this other job. but if you look at the trust that supervisor is supposed to hold, that is part of what the supervisor is supposed to do. even in situations like that, they do nevertheless relate to the duties of office. in this particular case, it would seem to relate to the trust that supervisor holds in office. in this case, we have a

relationship between the fact that the misconduct is a crime, and of course, the sheriff isñin law enforcement and there are consequences related to law enforcement. it is not a tough question whether the relationship test is met here. whether the official misconduct 9csprovision would capture all f the reprehensible conduct that we think our officials should not be engaged in, that is a question, perhaps, for amendment. in >> but isn't it a fair reading -- of the drafters were focusing on two things, one is come up performance in office and misconduct relating to that -- one is, performance in office and misconduct relating to that. the other is the kind of conduct that any public official ought to abide by. >> i'd think the greater includes the lesser. the duties of office include that ethical code.

part of the duties of office and the relationship of duties of authors -- of office is maintaining that of the gold standard. someone could look at the main clause and say, what is wrong for behavior by a public officer? it is not upholding what we expect by a particular officer. and the use of the wording tells us that includes things like conduct that falls below the decency standard. it is not limited to that, nor is it limited to of a mandatory duty. it is related to the office -- the duties of office, including these things. >> do you agree that it is eight two-step process that we have to deal with? one is, wasb misconduct? and two, did the mayor acted reasonably in exercising his discretion?

>> that goes to the question of whether there is a minimum level of wrongful behavior that we have to have. for example, jaywalking. that is wrongful, but does that mean that an official should be removed? that is a tough question. it is doubtful that the people that wrote the charter intended that. and fundamentally, we have the decision that the board of supervisors has to make, essentially, knowing the consequences that the sheriff will be removed, is that an appropriate consequence? they do have to make the determination of whether the consequences are appropriate. here, this case is so wrong for that there is no question that the consequences are appropriate. >> but you agree that it is 82- step analysis. if we were to find there were no -- it is okaa two-step analysis.

if we were to find it was no misconduct, then it would end there. or if we were to say, yes, it was official misconduct, but we think that removal of office is an unreasonable discretion of office. isn't it a two-step process? >> that has wandered -- one of the things under the separate section of official misconduct involving moral turpitude. what is mandatory when that happens? in that instance, the mayor must remove. the mayor has no discretion. but nevertheless, it goes to this body to decide whether it warrant removal. there is a judgment to be made by this body. certainly, the severity does

matter. but here, i do not think thebñ commission gets to grapple with that question because the conduct is so severe. >> you agree that we can decide it is official misconduct, but make whatever recommendations to the board we think is correct. if we think removal is too significant a penalty for the act, do you agree it is within our discretion to make a recommendation to the board that he not be removed from office? >> i think that this bodies recommendation to the board does embody a judgment about whether or not the share should be removed yes, i think this commission could theoretically find that there is some level of misconduct that meets the definition, but nevertheless, does not warrant removal. i do not know how sensible it is to treat that as a two-part analysis. what is wrong for conduct in

relation to the duties of office? that suggests that we are measuring the severity of the office. -- the severity of the duties of office. >> i do want to go back briefly to the point that commissioner renne was raising. what he was suggesting in the interpretation of the charter, it was more akin to option one. i understand your view of option 1, that it would be unconstitutionally vague. >> not that it would be unconstitutional, but yes, that interpretation would probably not give sufficient notice of the conduct that it prohibited. on the other hand, the interpretation that saves it is, well, you measure that conduct by the standards of that particular office. the rules of that particular statute always saves the

statute. that is how, in general, these things are interpreted. >> but as far as your position of what you have hopefully labeled the conduct clause, it must relate to the duties of office. you do not think that we should interpret the charter provision, the contract clause of the charter provision to not have the duties of the provision of office. you think there should be some connection. >> of course, but with the proviso that the task is not difficult to meet and it should be very broad. the sheriff's basically says that this relationship test that we have been discussing, well, the charter must have a provision that the sheriff cannot commit a crime. is there any 5 duties of the charter. it is not here. therefore, it is not official

misconduct. that argument does not make any sense. i do not think anyone would argue that the charter meant to allow an official to do anything on the job, no matter how wrongful, that if it was not spelled out as a particular duty and a statute that you could not violate, that it would not work give rise to official misconduct. that does not make any sense. the california supreme court said in the cranston case dealing with the police officer who engaged in reckless driving while off-duty, it up held the determinate -- it up held the termination of that officer. it said, the public has the right to expect police officers to obey the law, whether on duty or off duty. when police officers violated law that they were hired to enforce, they do so at their own peril. that relationship existed there, and it is the same relationship

here. this test is fully satisfied. it is conceivable that there are situations where it could be terrible conduct and it could be a much harder question. but this is not one of them. >> let me ask about cranston. cranston talks about the specificity may be provided by the common knowledge and understanding of a particular vocation or profession. you are using that to suggest that the particular vocation that we should have in mind are law enforcement officials. do i have that right? >> yes. >> but one i'm looking at the charter provision, the language, to me, it's pretty clear. if people intended multiple standards, i think they would have used the plural, standards. i think it is one standard. the vocation that we need to

evaluate our not sheriff's or law enforcement, but public officers. we have not heard a lot of expert testimony about what the standard is for public officers, but presuming there is one, that seems to be the standard we need to apply, not the standard that applies to police officers. >> let me respond in two ways. the question of what all means. does it mean each, or every? >> is the net more about whether it is standard or standards? if they intended multiple standards, why would they not used the plural? >> a provision that governs the conduct of all state employees, a similar language is used, regardless of whether it is a correction officers, lawyers, park rangers, maintenance -- the same standard is used and it applies to all of them.

the same language is used in those statutes. nevertheless, the court used it to interpret that it means it is what applies to that particular office. it makes sense. the other issue is that the lowest standard of decency is one of the standards that the commission will apply. that is why the use of the word "including" is so important. when we talk about wrongful behavior by a public officer in relation to the duties of his or her office, that encompasses professional standards. we still have a professional standard that applies to the person in office. and we want to make clear that there is a baseline standard of decency that applies. the court says that baseline standard, in any case, has to be interpreted in relation to the office. but it is a separate provision. the larger definition that

includes these things is an example. when the voters enacted this, they envision there is a standard of decency that has to be met by everybody in public office. we want to make sure that it is in there. but as a practical matter, meeting the professional standard, that is one of the basic duties. if you did not have the word " including" in here and all of the text that follows it, the idea of professional standard would still be embodied in the general definition. these are just illustrations. these are two different standards that could apply as a practicallp matter. as a constitutional matter, we apply the professional standard to that clause. gregg's you think everything that -- the myriad of examples of what constitutes professional behavior by a public officer. >> i do not want to say. , but -- i do not want to say

nereid, but broad. our brief explains this in greater detail about why we think this makes sense. i want to talk about one of the other legal arguments that the sheriff makes. this relates to the timing of the misconduct. we can look at the official misconduct and break it down into the elements. let me pass along to the commission another jury- instruction type of document. it breaks down official misconduct into its elements.

all right, what we're doing is taking the general definition of misconduct at the beginning of the first sentence of our definition of official misconduct in the charter. we break it down into the four elements of official misconduct. the sheriff has made an argument that because he committed his misconduct -- or initiated his misconduct a week before his inauguration, that does not count. our response to that is simple. it may have been a week before the inauguration, but two months after the election. that is what is significant. the definition of the misconduct answers the shares claim. it says what it means. and the second part of that, by a public officer. there is no statement in the charter about what the definition of public officer means. but there is no reason to

restrict who a public officer is and say that it clear -- it includes elected officials, but only after they're sworn in. the reason for this is the very purpose of the official misconduct provision. provision is meant to deal with wrongdoing that comes up after the voters have voted, hour after an official has been appointed to their position. it when the voters went to the polls nov., 2011, and a marked their ballots, they did not say, i am casting a vote to -- casting a vote for a share of that has committed domestic violence. these things came to light after the election. it is the very situation that official misconduct provisions in our city and elsewhere are meant to deal with. >> it may well be that the second portion of its deals with that question. but the first portion, i do not know how you can read it other than it st. official misconduct meaning any wrongful behavior by a public officer in relation to

the duties of his or her office. the first paragraph clearly says whenever that wrongful misconduct was, it has to be in relation to his duties to which he was elected. if he has not taken office -- he may have been elected, but if he has not taken office, how can he be guilty of the violation of that first section? >> let's think about the kind of misconduct that could be captured in relation to the duties of office. a person could be about to take office and abuse the power of the office they are about to take by making a threat of what they would use the office for after they take office. a person can engage in wrongful behavior shrub before taking office that would cast disrepute on that office as a consequence -- the consequences of that behavior unfold. and an official can be busy

preparing to take that office. that is why government ethics office -- government ethics that define this have been defined to include an elected officer as "any person who holds an elected office or has been elected to an elective office, but has not yet taken office." >> how can an act of domestic violence be transferred into saying that is in its conduct in relation to his office? it may well be a violation of the second clausez it be an act that is in relation to the duties of the office to which he is elected? >> because his own conviction in

paris his ability -- >> [unintelligible] >> there are some jurisdictions that say you cannot take misconduct that occurred before an election and in charge it afterward. but even those jurisdictions have a principle that when someone is convicted of a crime, it is the date of conviction that matters. the reason for that principle -- there are two of them. one of them is that the goal is to protect the office and to protect the public. having a role that when you have something as serious as the conviction of a crime where the conviction occurs during the term, it is to protect that office. the second reason is that the actual conviction is conclusive evidence that the conduct occurred. things can be up in the air, and then, or hidden. this is conclusive evidence, and that is what's we saw here.

he acted, because -- the mayor acted because he had conclusive evidence of what occurred. even in the jurisdictions that have a rule that say you cannot do that, they have an exception for the conviction of a crime. i am not aware of any situation that says if you're convicted of a crime before your turn, you're off the hook. did the threat come to light during the term that the person is being subject to scrutiny? in this case, it did. >> as we are drilling down on the words, the phrase that is used here is "in relation to the duties" where it might have said instead, "during the conduct of

" or "in carrying out the duties." that might have made our job more clear. do you think "carrying out the duties" would have set a higher standard? >> i think it does. tubthere is a case that we cited called the people versus nallen involving a share of in which an instance of child molestation came to light to the sheriff and he did not pursue an investigation and moreover, he did not refer it to any agency. the court said that the job of the sheriff is to detect wrongdoing, and he did not do anything. this is something that is a more closely related test under the government code. i think the voters did this. they also said, we are looking

at wrongful behavior, not unlawful behavior. this includes things like the decency clause. it shows that the voters wanted this to be a broad provisions of that we could hold our elected officials to a higher standard, including being able to deal with situations like this where you have conduct that relates to $:@the duties of8n clearly, there's on the effectiveness -- bears on the effectiveness of that office where you have consequences that are going forward. they wanted to be able to capture that, and i think this language does. i think that our brief discusses the differences between wrongful behavior and unlawful behavior closely enough and what that signifies. i will not dwell on these elements. i will turn to the relationship test and talk about how that relationship test is satisfied

here. >> may i interrupt? going back to the definition, in your hand out on the broad definition where you broke it down to inaction and the conflict klas, are you reading the charter to say that when you look at the concept klas, conduct involves the standard of decency, good faith, and right action expected ebro public officers in relation to the duty of his office -- is that the way you are interpreting it as the standard that we should apply today? rex i think it has to be. the use of the word -- >> i think it has to be. the use of the word "including" followed by the rest of the phrase gives us a picture of what that relationship should be. >> and your only alleging a violation of the conduct klas.

>> we are alleging a violation of the general definition here. all of the conduct that is alleged violates the general definition. some of it also violates some of the other illustrative clauses here. but what we have been focusing on is the general definition, but you are -- general definition. >> are you are not making the argument that he violated the contract clause. >> i think some of the investigation could fall under that category. basically, if the sheriff acted to keep his wife from going to police, then he is responsible for all of the consequences that came from him bringing in his campaign manager to clean up

this mess. in which case, he is responsible for the actions that she took later that afternoon in regard to the conversations with ivory madison, in regard to the ongoing efforts working with ms. lopez to try to stop this police investigation if he initiated it. if on the other hand, you were to find that he did not initiate this contact, but found out later in the day about their actions, then the other clause would come into play. but other than that, i do not think the inaction claus comes into play. we have affirmative action of wrongful action by the sheriff. >> and you are not making an allegation under the conflicts klas, right? >> with regard to the shares threat to use his power, that certainly does violate conflict of interest laws specific to the city, but there is no question

that is also a conflict of interest as well. >> have you identified the conflict of interest that he violated? >> yes, it is in our brief. the provision says you cannot violate any provision of a statement of incompatible activities. and the shares statement of incompatible activities, like every statement of incompatible activities in the city, states that use the premhu) power of his office for a private and. bad as the violation. these costs -- that is the violation. these clauses are -- in this case, that clause is also met. >> would it be your position if it was not the position of share, but that the public

official was, let's say, a supervisor, and he or she performed the same acts that you allege were performed by the sheriff's people to try to close off the investigation, that would not be a violation in so far as criminal investigations. >> if you have a situation where the prize -- the person was not initiated the contact, but it came to light after the fact that others were working on his behalf to cover up this crime, you could argue under that circumstance that as much as you would want them to take action, they may not be under an obligation to. >> that is the way you read the statute? >> with regard to specifically the inaction on