you know what? i want to say one other thing -- i take that back. fact 12, which was identified by the mayor, i think is relevant and it is one that we addressed, relating to the gun charges. i think the remaining -- for

example, 13 a conclusion. 14, to the extent that it has not been discussed, i think is irrelevant. >> i am looking at no. 9. i say that because it relates somewhat to the issue in 14. no. 9, indicating that the -- that it was a private matter and denying ever being verbally or physically abusive are troubling to me in light of the later admissions or later plea. and the testimony here. chairperson hur: let's talk about that. both you and commissioner renne have raised the course of conduct after the arrest.

are you of the view that statements that were made that are reflected in paragraph 9 and paragraph 14 have been proven by a preponderance of the evidence? have they been proven and do you think that they are relevant to our determination? commissioner renne: as to whether he made that statement? chairperson hur: yes. commissioner renne: that it was a private matter? chairperson hur: iraq 9 and 14. -- paragraph 9 and 14. commissioner renne: i understand that he was not denying it. the response that he gives was that the surest private family

matter was in a statement given to him by his attorney. still his statement. he is not disputing that he made the statement. maybe he got bad legal advice. chairperson hur: any dissenting view towards that? i am not asking about the bad legal advice, at, just in general. -- bad legal advice comment, just in general. in my view, 9 and 14, to the extent that they are factual, some of them are not, i think that the mayor did establish that the share of made a joke about -- sheriff made a joke

about the press conference -- the press coverage he was receiving at his inauguration. i personally did not think that that was a joke about domestic violence. ultimately, i do not think it matters. i do not think any of these allegations, whether proven or not, could sustain a charge of official misconduct. but a curtain -- i certainly could see if someone thought the joke was about domestic violence. i do not think it is outside the realm of possibility. i just did not think that was what he was saying. >> i did not feel like it was a joke about domestic violence, per se. it was a humorous reference to his personal situation, one in which he found himself, vis a vis the media and legal situations, perhaps it was inappropriate and ill-revised,

-- ill-advised, but i do not think he was making fun of domestic violence. chairperson hur: are there any other facts that were in the joint submission that any commissioner would like to address? >> i would like to address the sheriff's proposed fact no. 18. the share of had proposed -- sheriff propose the factual finding that many who had been serving honorably were convicted of crimes, citing sheriff

michael hennessey's declaration. i did want to address it. when i first read sheriff michael hennessey's declaration, it gave me pause for that reason. itl1specific and in this case, as many people have said, fact do matter. it is a very fact-specific inquiry. sheriff michael hennessey did not make himself available for cross-examination after the commissioners had asked repeatedly about whether he would make himself available. he chose not to. i was not able to give his statement very much weight. i did want to address that. although they gave me pause, i could not give it much weight when he was not making himself

available to testify. chairperson hur: i would agree with that. >> i do not know how we can judge this one as a matter of fact, nor is it our obligation to do so. if it has any relevance at all it would be to the appropriate response or disciplined for -- discipline for an act of official misconduct, whether someone found that he did it or did not. a lot of what we have been offered was with regard to assertions that other people have done other things to be a lot like the comment to the state police, but a lot of people were going faster than i was. that is not the true responsibility. what did you do and we are the ones in conversation right now. i do not think there is a

relative standard right now so i find it unhelpful and unproveable. chairperson hur: agree. any other facts that the commissioners think we need to discuss? i think we have discussed all of the ones that are relevant. there are certainly many in here that are not relevant. anything else factually that we need to discuss in order to establish? ok. next, i think we need to address the legal issues, some of which are likely more thorny than the

factual issues. it seems to me that the parties have agreed that we need to read the charter provision consistent with the option that we proposed at the last meeting. option 2 requires that every cell clause -- sub-clause following the first half to relate to the duties of his or her office. is there any disagreement among the commissioners as to whether that should be the framework with which we should -- by which we should perform our discussion? commissioner renne: i think i made it clear that i do not agree with that interpretation of that statute. i think there are two distinct provisions. chairperson hur: commissioner

renne, you do not think that it is a fair reading of the statue to put the colon after the first, including having the first clause begin with "any failure" and the second to begin with "conduct that falls below." commissioner renne: no. i think the "or" is disjunctive. the second clause provides for misconduct being any conduct that falls below the standard of decency, good faith, and right action that is required of all public officials. i gave the examplelp -- take the penn state matter with joe

paterno. one could say he did not violate any law. but he had a moral obligation, a standard of the position he was in, to report what he had found that out, not to just let it go or stay, and do not come back. my belief is that is what the framers were intending, saying that we have some standard. the question has been raised, that is so vague and ambiguous. my answer to that is it may be ambiguous, but if the act that you are claiming violated that section and if any reasonable public official knows that act violates it, vagueness is not a defense. chairperson hur: it is the

mayor's position that you're reading is unconstitutional. commissioner renne: i understand that. >> if you are looking at option 1 as the interpretation, which i do have to say that has been my initial take on it, i think that is likely what the framers intended. would we be reading into it, " required of all public officers" to relate to the position in question? perhaps it is not vague as applied. commissioner renne: i think it could be well read that you look at the particular position of public official and say, did he or she conduct themselves in a

manner which violates a sense of decency, good faith, and right action or regardless of what the position was, is the action or conduct, does it fall under some general belief that it would be considered to violate the standards of decency and good faith and right action? frankly, i do nothing that it makes a lot of difference in this case whether you apply it to the office or generally. no public official should conduct themselves in the manner that occurred on december 31.

>> i have come up for a long time, thought itt( was a very tough decision, which of these two it was. when i look at option 1, the question came up this morning whether if it were intended to apply to each position, all or each public offices, and why standard was singular instead of the world. i think you can get to the same place so i am agreeing with commissioner renne here. if you are trying to make the standard of good faith and right action required by all public officers could include a number of things. ñilpand carry out the duties ofr particular office. i think that it is ordering it to try to figure out the all or the each because there is another logical both substantive and grammatical way to get there.

ñiit becomes, do all of the things and all the things that your office calls of you. that does not help you with whether we are all on option two. chairperson hur: i had that similar thought in mind as well. the only way to read -- one plausible way to read a section like commissioner renne does but to find it constitutional would have to be -- would have to, almost by definition, require some relationship to the duties of office. i think that is what commissioner lou -- liu's point was as well. both readings are plausible,

based on the language. i think we should accept the reading that director lee requires this relationship for the meaning of the word since we would have to apply it anyways in order to interpret it in a constitutional manner. which is why i think we should agree with the parties and applied option to. there will likely be significant debate as to what the nexus has to be. i do think that is the most correct reading, perhaps, in this case. commissioner hayon, if you have a view as to which reading is appropriate? commissioner hayon: i kind of agree with commissioner renne, but this falls beneath my area of expertise. my question, in terms of relating to the duties of office, my question would be, in

this case, while this took place in that twilight zone, if you will, between when he was elected and the time he took office, nonetheless, sheriff elect, his duties as sheriff relate to areas of domestic violence and quite a swath that san francisco has cut nationally in terms of what we do. it seems to me that if we read it that way, to me, that still means that what he did relates to the duties of office. i do not know if that falls under the legal discussion that we are having. that is how i would interpret it. chairperson hur: ok. commissioner renne: let me ask you this question -- at the time

of the incident, he was a member of the board of supervisors, which made him a public official, which meant he was subject to the language of this section. if he had run for reelection, hypothetically, and was reelected to the board, do you read that to say that because this does not relate to the activities of the board, it is one thing to talk about the share of -- the sheriff, are you saying that an act of domestic violence by a member of the board of supervisors could not be official misconduct? chairperson hur: i think there are two parts to your question. are you asking about the timing? commissioner renne: if you

interpret that it has to relate to the office, if he had been reelected to the board of supervisors, are you saying that he would not be subject to a claim of official misconduct because of domestic violence? you would not have the same argument that you would have about the duties of share of -- of sheriff. as i read the statute, it would be an indication of conduct that did not meet the standard of decency and good faith and right conduct. chairperson hur: my answer to your question is that no, i do not think it would be official misconduct. because i think the president we have -- the precedent we have that talks about what the duties of office means is pretty clear.

there has to be a direct relationship with the alleged wrongdoing to the office held. commissioner renne: that was before this ordinance was ever passed. chairperson hur: the ordinance had been passed and the language that is now in the ordinance is the same precise language that missoula addressed. commissioner renne: the second section was not before the middle of court -- the missoula court and has no relationship to the meaning of the conduct which falls below the standard of decency, good faith, and right action. chairperson hur: certainly, if we were to follow option 1, which is what you are advocating, then there would not be a nexus requirement to the relation of the duty.

in my common-sense view, does domestic violence fall below my standard of decency that i expect of public officials? yes. but i do not think that is what we are being asked to apply. if we do not find a nexus to the relationship of the dutyx%s, thn we are opening this provision up to abuse and manipulation down the road by -- in a way that we are not really going to like. i have grave concerns about what the next case looks like unless we interpret this in a way that i think the voters intended and that is narrow and understandable for elected officials. >> if i may just add one thing.

one issue that has been brought up consistently, particularly in public testimony, is the issue of fairness. i think we all agree that life is not fair. certainly, government and politics least tell all. -- least of all. i do think it is an issue we have to at least think about. and include in our deliberations. there are certainly all kinds of misconduct and some of it has been referred to specifically on the part of other elected officials in san francisco as well as other places. we see plenty of official misconduct across the board in this country. not everybody gets hauled up on charges. the issue of fairness is, who is going to bring up the charges?

charges were brought up in this case which is why we are looking at it. in terms of some element of fairness, this particular charge, as it relates to this particular office, is very relevant. it is not just some elected official acting out, taking his clothes off on a tweet or what have you, but something that really speaks to san francisco. he is a leader -- the sheriff is a leader in law enforcement and domestic violence. there is a correlation in what the city and county of san francisco does and that is important to me. >> if i may make one suggestion

for you to consider. if there is a disagreement about whether option 1 or option two is the appropriate interpretation, you might consider reaching a conclusion under each option. i say that because, obviously, your recommendations are going to the board of supervisors. if you were to make a recommendation under option 1, but the board believed option to was the better interpretation, the -- the board might say, what with the ethics commission have done under option 2. i do not want to make your job any more complicated than it is, but i think you should consider making findings under each option. chairperson hur: views of my fellow commissioners? ideally, i would like to make a recommendation to the board that is a single recommendation. i think we are making the

board's job harder if we do not come up with one recommendation. i think it would be easier for us to have a number of permutations, recommendations, and send them all up and we may need to do that if we cannot reach a majority of some of these things. my preference would be to figure out what we think the right option is and make a recommendation. >> i was not presupposing that your recommendation would be different. it may very well be. i do not want to prejudge what i am hearing, but it may be that the recommendation you make -- you might make the same recommendation under either option. >> as a matter of process, we might see where we are all lined and where we have differences.

under the same option, different views, or different views depending on which option we proceed with. we might get closer by doing it. yet, i think you are right that we would still have a preferred pathway or recommended analysis. it may be that there is a footnote that says, even if you go this way, here is how we thought about it. that could become part of the later interpretation and could help people. if the supervisors go back to try to parsed this out. chairperson hur: i think that is a good point. >> it would be as close as we can to what you want, but it would be a way to find differences. commissioner renne: i am not sure the results in this case is any different. what i am concerned about is that this commission sends a message to the elected

officials. you can do anything you want if it is not in relation to your duties. i think there is at( provision that puts a higher standard on our elected officials than just how they conduct themselves vis a vis their official duties. chairperson hur: that is a fair point, but the countervailing view is -- i have not seen any evidence suggesting to me that the mayor had any improper motive in bringing these charges. this, to me, is a statute that is subject to a number of interpretations. i think the mayor, in light of the seriousness of the allegations, had every right to file the charges. we, i think, need to interpret it. i think we are going to do this mayor, future mayors, and elected officials service if we

interpret this in a way that is clear. i have a lot of concerns about where you draw the line if you do not relate it to the duties. the other thing i want to say about this is this is not the only provision in law to protect the public from elected officials doing wrong things. there is a criminal process, there is a recall process, there is a process within one's own department whereby an official candy reprimanded. i think the voters intended official misconduct to be something narrow because it provides the mayor with a very strong tool that really could disrupt an elected official. i do not think the mayor engaged in anything improper here or that there is any improper political motive. but you could certainly see that possibility, especially if we interpret this in a way that is so broad as to encompass any number of -- any amount of

personal misconduct that does not relate to one's job duties. >> maybe we should take option #2, the tougher, higher standard and then see where we are with that and see if we need to discuss option #1 some more. chairperson hur: i think that is a good idea. under option #2, i am guessing, based on what i am hearing, that the debate is going to be about whether the relationship to the duties has to be a direct relationship, meaning something that is performed on the job or purporting to be on the job