under color of law. lpor whether it instead must merely affect the elected official's ability to perform a duty. i probably should have not use the word "merely." i do not mean to suggest that it is a lesser option, by any means. but is that pretty much what the parameters are if we are considering what relations to the duties means? >> i think it is a good start. let me start with something that seems pretty clear to me. i do not think that the duties of office can be limited to the handful of specific, affirmative tasks enumerated. that is just a poor reading of the duties of office. there are a whole lot of affirmative and negative

instructions for explanations of duty. what the charter, as i understand it, attempted to do, is enumerate some of the specific responsibilities at the charter level for those jobs, like operate the jail so you can tell the job of a supervisor from the job of mayor. nowhere does it say "do not lie, cheat, and steal." i do not think we expect the chartered to do that. it is part of the obligation of office. i think the duty and obligation of the office are related. the argument offered to us that the limit of what the sheriff has to do is in that handful of specified tasks and nothing else identified by the mayor,

signed by the board of supervisors, selected by the office holder, him or herself, as a way to advance the purposes of the office, are not part of the job. if anybody challenge that, i would say, if you drove your official card to it, it is not just the limit of those five items. the sheriff's job is much broader. not that it is easy after that, but i just want to come up for my part, scooped away that argument constraining us and then we can figure out what the duties of the office of sheriff are. chairperson hur: i agree with that.

ok. i think we agree that the duties are broader than what is described in the charter. what are we to make of the relationship test? i am torn, in some ways, because i am troubled that there is case law that addresses what is expected of an officer. i think those cases could have some relevance to what we are discussing. of course, there are no cases that connect whether that standard should be imported into and official misconduct analysis. that is where i am a bit stuck

and why, out that the relationship has to be direct. but i again welcome the views of my fellow commissioners as to whether this relationship does have to be done while performing your duties or purporting to perform your duties or whether there can be a different type of relationship on the official misconduct standard. >> i do not think it has to be while carrying outlp or providig -- i do not think the conduct or the misconduct, the wrongful behavior itself, is constrained to being performed while carrying out your duties. i do not read the provision to

be that narrow. i agree with commissioner studley that the duties are not simply the ones enumerated in the charter. i think that there has been a lot of testimony and evidence that the duties of the sheriff are much broader than that. as commissioner hayon put it, the sheriff would oversee a lot of anti-domestic violence programs. there would be a correlation between not function of the share of -- sheriff and being convicted of a domestic violence crime. chairperson hur: the problem i have with tying the relationship to the effect or the ability of the sheriff to perform the job going forward is that it does not seem to work from a timing perspective. we are talking about -- to me, this provision is talking about

wrongful behavior that, at the time you are doing it, is in relation to your duties. a lot of the testimony we heard is whether or not the sheriff will be effective down the road. he very well may not be, but i do not think that is in our purview. if we are going to sayq/a -- essentially, what the mayors export -- experts said is that any misconduct by a sheriff is official misconduct. that troubles me because it seems the parties can see that there is a difference between personal and official misconduct. the evidence we heard does not give me a comfort that we can take that line. -- pick that line. >> i am just wondering how you are getting to that time iss

ue. within option 2, any wrongful behavior in relation to the duties of office, including conduct that falls below the standard of decency and right action required, and the standard required could well have at( going forward element o it. the standard that we expect is so that you can do your job going forward. it is not either historic or at one moment in time. you may be looking at something that i am just not seeing in the second line or in the other case law, which i know you know better than i do. chairperson hur: it is a good point. i do think a standard is something you should be able to look at now and know if it sticks. if the standard is we expect you to act in a way that, in the

future, you would still be affected even if you do the act -- >> let me try making up hypothetical is on the fly. -- hypotheticals on the fly. if i held public office and i admitted to perjury in another jurisdiction in a matter not related to my city responsibilities, i lie in my family's state matter, that is wrongful behavior. say i am the district attorney. if you think that the standard that i should be held to as a law-enforcement officer is related to not perjuring myself, would it be in relation to the duties, even though both the

time and the substance are distant from mylp job here in sn francisco? chairperson hur: i would say that is not in relation to your duties. again, the reason being that -- i think there has to be a greater connection. there is another line between perjury and lying. if you lie to your husband, if you like your friend, is that conduct the falls below the standard of decency? >> but if i perjure myself or lie in a legal proceeding and my job is legal, does that threaten the standard of decency? chairperson hur: again, i have always read this to be a standard, which is why it has to tie into the duty. to read a multiple standard is

difficult. >> even if we have a single standard and i am a public official and my perjury is in a public proceeding, do you think the voters wanted me to come back, having been convicted of perjury, and continued to hold my office on the same terms as before? or would they believe that there had been official misconduct? because that is the term we are trying to -- would they believe i had committed wrongful behavior in relation to my duties? chairperson hur: your scenario, i do not think it matters whether it is the district attorney, the board of supervisors, any public official.

for me to be consistent in my view, i would have to find that that is not official misconduct in the performance of your duties. i can also make up a hypothetical that pushes the other way. if you are in a bar in your intoxicated in public, is that official misconduct? certainly, if you are in your office and your intoxicated repeatedly, that is clear that that could constitute official misconduct. but is it below the standard of decency and right fate and right action that one could be publicly intoxicated in a bar? is that what we expect of our law enforcement officials? >> i do not want to be flippant and say, not in san francisco. [laughter]

no, but i am trying to figure out why. what we are trying to do is get closer and closer to what the line is. >> i think that i see what you mean. the interpretation that you are giving in relation to the duties of the office, i read the second provision to relate to the office of sheriff but not necessarily to mean that it has to happen while carrying out the duties of sheriff. i still think there needs to be a nexus and their relationship to the office. i do not read it as restricting it to the duties of office. i think that is where we differ on the interpretation. chairperson hur: my interpretation is a little bit

broader than that. "in relation to the duties" means what you are acting under color of law. if the sheriff had used his authority as sheriff to dissuade a witness even though he was not the share of at the time -- the sheriff at the time, i still think that could explain a charge. what i am worried about is a relationship that is so general that what we are talking about is the affect on his ability to do the job going forward. i do not think that is what the voters had in mind when they wanted to remove someone for official misconduct. >> i was not saying that we have to find whether or not he would be ineffective or effective as the share of going for -- the sheriff going forward, just

weather being convicted of the crime of false imprisonment or domestic violence falls under the standard of decency that we expect of the office of a share. -- the office of sheriff. not that he would be ineffective going forward, but taking this prong, does this prong meet the facts here to sustain a charge. chairperson hur: while i can agree about the point about missoula, if we are following option two, missoula clearly talks about this definition.

it is the same language. he then goes on to say that the acts must be committed while in office, and official misconduct requires the direct relationship of the wrongdoing to the office held. and explains why missoula does not, because he was not performing his duties. that is where i get hung up, how to reconcile those. >> i think i am just reading missoula as pertaining to the first prong. it makes sense to me that that is a more narrow and restrictive view, but not addressing the second prong. commissioner renne said that is the gap that the voters decided to fill. chairperson hur: if we are going to say that the second prong has to relate back to this "in relation to duties" portion, i

do not see how the second prong should be interpreted any differently than in missoula. we are still talking about the same language. maybe i am missing what you are -- commissioner renne: why have the second sentence if it does not mean anything other than what missoula was talking about? chairperson hur: what i am saying is i think missoula was explaining what "in relation to the duties" means. it could be broader, but they still have to relate to the duty. i am only relying on this a lot in that it helps nearest -- understand what kind of nexus is required.

i agree that the decency standard is broader than the failure to act standard. can we -- i am just trying to figure out ways for us to move the ball forward. are we in agreement that there is a distinction between personal misconduct and official misconduct? >> how do you mean? chairperson hur: and a sheriff engage in misconduct that is not official? wrongful behavior that is not official misconduct? >> yes. chairperson hur: what would be

an example of such a thing? >> i promised my husband i will be home, this time, by 7:00. i am not. that is personal misconduct. i have broken a promise to a family member. i do not think it is actionable at work, just to get the ball started. >> do you mean conduct that is unlawful that would not constitute official misconduct? is that what you mean? chairperson hur: what is conduct that would fall below the standard of decency that would not relate to the duties of a share of -- of sheriff? perhaps commissioner studley's example is a good one.

>> breaking a promise to a friend or family member. it is not unlawful. if you want unlawful, you will have to search for another. >> perhaps misconduct that does not end up being unlawful if there is no criminal conviction. but it is something that was tasteless. >> there are all sorts of speech acts that might not be appropriate or tasteful or respectful, that are wrongful behavior but not official misconduct. >> what is the principal you use to draw the line? -- what is the principle you use

to draw the line? >> i do not think we need to set a bright line rule, necessarily, unless you are uncomfortable with the fact, and you need to set a bright line rule. i think we need to figure out where the facts here rise to that level. i do not know that we have to set a rule for any time this comes up. >> i agree with that. i just asked because i am trying to get comfortable with this idea that -- what i like about bright lines is that it is easy for the next person to follow. i think, in a vacuum, bright lines are better than not bright lines. >> it is hard to find a bright -- >> you are right. our task is not to create -- we probably could decide without establishing a bright line rule, but i am trying to get comfortable with not having a

bright line rule, and how you would decide similar issues, if we went with a more vague -- >> it is hard to draw a line with only one docked. part of our problem is we have just this one matter. we do not know whettmváp&e%ei worried about a slippery slope or a floodgate if we do not provide enough guidance, or if we do something that is hard for this or subsequent mayors to interpret. but it is asking a lot to try to into with a line and a formula for something that happens so rarely. we should not do it willy-nilly. i am with commissioner liu that we may be overburdening an already complex process by

trying to imagine all the other possibilities when there is no population to reflect that. >> i have a question. the last time this even came up, which i guess was with supervisor chu, although it did not come to a hearing, and it 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.