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 the charter. they treat the procedure a bit, creating the ethics commission. >> exactly. to answer your question, i think you have to assume the voters were aware of the state of the law. the state of the law has not been in the state of california that allows a person who has been elected but not yet sworn into office to be removed for any act that occurred before they're sworn into office.

there's just no such case that exist. that is why they have had to go to other jurisdictions to persuade you. and again, beating a dead horse -- ." >> we do not know other those cases do not exist because no one tried or no such factual situations. >> of course. i do not want to move away from this if there is anything left unanswered, but one other point i want to make about this is the mayor has argued that law- enforcement -- a law enforcement officers should never run afoul of the law or commit anything that should be charged as a crime and the law enforcement officers should never be convicted. the key witness said you get convicted, you should be fired

immediately. that is not the case in san francisco. there have been many law enforcement officers that have been conducted reaching have been convicted of misdemeanors and have remained on the force honorably. there is a two-part process. you determine whether thereó' is official misconduct, and then you decide whether or not this was a correct use of the mayor's discretion. i would maybe add something to that, as suggested in the brief. and i think if you did find some level of official misconduct, you could make the recommendation that it does not warrant removal. the mayor has argued -- law enforcement has a special duty because they are required to investigate, required to do certain things. you could look at what happens with judges who can be found to

uphold the law and apply it fairly. i personally know several judges who have been convicted of misdemeanors and not removed from office. the fact of the matter is, it has to be recognized that people sometimes make mistakes and sometimes run afoul of the law. it does not necessarily warrant removal. clearly the facts of this case do not warrant removal. and with the commission has further questions, i will submit. >> i want to talk to you about a couple of facts. and in my view, i will credit the inspector's testimony because he submitted a decoration and was far prospect examined on its -- and was not cross-examined on it. in my mind it is credible that he told him he sold his gun in 1996 to some could thaadet.

what is the justification for making this untrue statement for the inspector? >> well, i think the question assumes something -- it may be an understatement, but as you yourself focused in on, how do you know that it was made with any wrongful intent or intentionally? perhaps the sheriff did not remember what happened with the gun? i cannot give you a proper answer on that. i cannot give you a proper explanation. i can't reiterate what the mayor said, which is that is not anything that would warrant removal. if not, why would we even discuss it? is it to make weight because the rest of the allegations are not sufficient? in my view whether or not the share of made a truthful or untruthful statement regarding

the guns really does not have more -- does that have relevance. the point is to get it out of the hands of the person who is accused and into law enforcement hands. that is the point. that is what was done here. wwhether it went to the sherif's department and then the police department ismdo really immater. who knows why the lawyer objected to the transfer. i do not. >> staying to the facts a little bit, i have been troubled by the question as to whether or not in determining whether or not the mayor acted reasonably in exercising his discretion he could take into account the events or acts that occurred between the time of december 31 and march 19 date when he acted.

one of the troubling things is miss lopez's assertion of the attorney/client privilege. based on her testimony, it was absolutely clear to me and clear to the court there ruled against her on this point that she was not talking to her as a lawyer. she talked to her over a time of the year about problems with her marriage and said she talked to her as a friend. when she talked to ms. haines and told her about the discussion, she did not say i went to miss madison as my lawyer. it was clear she was saying i want to miss madison it did not think she would disclose it, i thought it would be confidential. there is not any evidence in the