as to dissuasion and to page 4 where it says the commission denied the sheriff's request for subpoenas as to collateral issues and describe those issues and the issue was whether or not the major commited perjury and that is why we requested those subpoenas. that is not reflected in the document and finally and most importantly, well, two other points. on page 5 in the "findings of fact," in paragraph 3, it refers to "acts of verbal and physical abuse." without saying what those were. i don't think that the commission actually made a determination other than the arm grab that there were any

other acts of "verbal and physical abuse." similarly is, the sentence right after that, using the phase "with such force." obviously if the arm was bruised, then that is implied. so i don't think that the commission had the discussion about whether or not to use that phrase. and finally on page 6, the first sentence of the recommendation reads, "the board should sustain the charges of official misconduct against sheriff ross mirkarimi based on, et cetera conduct on the incident on the 31st as reflected in counts 4 and 5." i take strong issue and object very strongly to the commission making this recommendation as stated here. because that is not what the commission decided. and commissioner renne pointed out on august 16th that the counts are the same as the charges. well, the commission

did not unanimously or otherwise sustain any of the mayor's counts in their totality. rather the commission decided that there was official misconduct going back to the incident on december 31 as reflected in counts 4 and 5. that is not the same thing as sustaining counts 4 and 5. the commission did not sustain or recommend to sustain count 4s and 5 and the commission did certainly not recommend to sustain the charges, which implies all of the charges. so i think at a minimum, this document should be clarified to reflect what the commission actually did and did not do. but it did not sustain the charges. certainly not as written by the mayor. and i think this document should reflect that the commission did not sustain any of the six counts and, in fact, only found that two of the counts, 4 and 5, there were elements of those counts, parts of those counts that a majority of the commission agreed with,

but certainly not all of those counts. >> let me start with that particular point and we'll address each of those in turn. on your last point you are complaining then about the statement on page 6, line 1 through 4. is that right? >> yes. did not say that the board should sustain the charges of official misconduct against sheriff ross 6ç0 on the seriousness of the incident that occurred december 31st, 2011, and the subsequent conviction as reflected in counts 4 and 5 of the amended charges of oehl misconduct. that is the part you are complaining about, right? >> yes, and specifically the first five words . >> well, on page 16 11 of the transcript, there is a motion that says, "is there a motion to sustain the charges as to the conduct that occurred on incidence 31st, 2011 and subsequent conviction as

reflected if counts 4 and 5 of the amendment charges of official misconduct." so i think it's pretty clear that the order reflects the motion that was made, seconded and approved by the commission. okay. your concern about the facts that are not included here. meaning the fact that we found there wasn't sufficient evidence on the guns or other conduct. i am certainly not suggesting that we didn't make those findings and i stand by them and i think we were absolutely right to find that the mayor did not sustain his burden on many of the facts. but a finding of fact is a place to put in what we actually found, not what we didn't find. so that is why we didn't include those in there. with respect to -- i mean

with respect to your concern about how we crafted the language on the denial of the subpoenas. you know, i suppose i'm open, if you think that there should be word changes, but i think this accurately reflects what we decided. do you have specific things about this that you think are inaccurate? >> well i think that earlier you referred to the fact that the commission did not decide the prosecutorial misconduct. i don't know if you consider lying under oath prosecutorial misconduct, but it was alleged and we requested subpoenas and the commission declined to look into the issue and i think the board in this document, the vice summary was a major aspect of the case and

reported for weeks in the press. two officials were to testify under oath to the mayor's perjury and this language minimizes all of that. >> mr. wagner, with all due respect, we didn't ignore it and, in fact we talked about at t at some length and is dueded that under and/or too collateral to address and it's in the record. the board can look at it. i frankly think this language accurately reflects what we decided. again, if you have specific words that you think are inaccurate, you can point them out. but i certainly don't think this should come out. this is simply a reflection of what we decided. we're not making any judgment calls as to in this paragraph as to whether or not the mayor's testimony was otherwise

credible. >> may i add something? >> yes, commissioner liu? >> in addition i also think it's important to remember that chair hur during that meeting, whichever date that that was that we discussed our request for additional evidence and testimony, that chair hur pointed out that perjury charges are not and were not before us. our commission was not asked to pursue charges of perjury against the mayor. your request to us was whether to allow evidence from four additional witnesses on these other issues, and your hope was to impeach the mayor with those additional issues. and so what we discussed and what was briefed was the fundamental rule of evidence, that we have the discretion and courts have the discretion to not allow evidence and witness testimony for the purpose of pursuing issues that are

collateral and not directly relevant to what is going on and what is at issue in the hearing. so i would like to just state for the record we were never asked to pursue perjury charges and were not the body to do that. that is not our job and that was never our job whether or not to decide to pursue perjury charges against the mayor is not within our purview at all. so i just would like to correct the record on that. >> any other commissioners want to weigh in on this? >> i am somewhat sympathetic to your statement that there is nothing in here that reflects the fact that we rejected a number of charges that were and is there some language that you specifically would like to have us insert and where would you like to have it? so that the board is aware of the fact that in a sense we only

accepted one charge of misconduct and that was the misconduct relating to the incident of december 31st and the conviction. and everything else that the mayor choose to throw in we rejected. i agree. and i don't have any problem if you wanted to put that in. i don't know if other commission members would, but i think it's a fair statement. >> what do the other commissioners think about that? my concern is that when you start saying what you didn't -- facts that weren't proven, you kind of open the door to, well, how many should we in include and exactly how should we say them? with that said, i certainly, it's crystal clear in my mind that what we found that certain allegations were not proven and if the commission feels that we should add them, i don't necessarily have a problem with that. as a practical matter the crafting of language may

present some issues. so with that, i ask whether commissioner hayon or commission liu have anything to add? >> what you are proposing mr. wagner, along the lines that the commission did not find evidence sustaining charges of witness dissuasion and interference with a police investigation? those are the two that stick out for me, perhaps, if you wanted to include a sentence along those lines? >> i think the guns would also be the third major allegation that we found was not proven. >> thank you, commissioners for considering this point. i think my concern is that as commissioner renne said at the

last hearing, the counts are the charges. so when the commission is saying in this document, the board should sustain the charges that implies that the board should sustains the counts, when, in fact, the commission rejected four of those counts completely. and that is 1,2,3 and 6. so i think this document should reflect that fact and by simply saying that the commission -- the board should reject counts 1, 2, 3 and 6 completely, and as to counts 4 and 5, well, i will leave it to the commission. that language is already in here and i do think it's clear that the commission -- well, it's not entirely clear. i think the commission should be clear in this document to say that they rejected all of the counts as drafted by the mayor. that is a fact. and it does not reflect that here. >> one of the problems that i have with your statement that

we rejected 1, 2, 3 and 6 is they were rejected because they concluded so many things. you know? and i have got to say from my point of view, one of the frustrations is there was never one simple charge saying x and y. they added everything in all of them and i think our problem when we went to 4 and 5, because they were the ones that were closest to what we found to be official misconduct. that is part of the problem. >> i completely agree commissioner renne, and my reading of the charter is that it does not empower the ethics commission to redraft the charges. if the mayor made an error in charging, i don't believe that the ethics commission has the power to cure such a defect after the fact by redrafting

the counts. >> i'm looking at count 4 and my understanding of what the majority did they fund each element of count had was met. the problem that the commission had was incorporation by the commission ragraphs 1-46, found that sheriff mirkarimi was a public officer the all-times during the event. that he engaged in wrongful behavior by the crime of falsely imprisoning his wife, resulting in miscriminal conviction and thinks behavior was wrongful and willful and that the crime, conviction and sentence as related -- well, maybe that each and every duty of his office may be overstated. but i think the majority found it related to his duties.

is that consistent what was founded? >> as was said we struggled with the other counts because they had so many elements and i do not think it's accurate will it tosy that we rejected in their entirety, for instance, count no. 1. we talked about that count in particular and decided to go with 4 and 5, because 1 did include a number of things that we were not sure, some people may have agreed and some may have not. so that one i feel strongly we did not natomasly unanimously reject count no. 1. so for that reason i would say it's better to say what we did find and not what we did not find. >> thank you, commissioners. i think this language should roflect what commissioner hur

read into the [stra-pbz/] script, page 1611 of the transscripted and that is sustain the charges as to the conduct that occurred on december 31st, et cetera as reflected in counts 4 and 5. that makes it very specific that well that is just what the commission decided and this language here is more broad. the language in the document is not the same. it says sustain the charges of official misconduct, et cetera. >> i mean, it is substantively the same. what is the substantive difference in your mind? the only difference is that we added what was certainly implied in the motion that it's charges of official misconduct. rather than charges as to the

conduct. i mean, look, if the majority wants to change that to the exact language of the motion, i guess i have no problem. this just seemed clear as to what you all really did. but i leave it to you . >> well, i don't believe that the board ever -- excuse me, the commission ever actually took a vote and said we're going to sustain counts 4 and 5. we find there was official misconduct as reflected in counts 4 and 5, which is not the same thing. >> well, what is in the order right now is the "as reflected" language. so you still have your argument. so i don't think you want language that weakens your position here. >> i agree. thank you. and if i may now address the issue of mr. hemblig

representing the commission before the board, i think this is a thorny issue, as the commissioners are aware, we initially filed a motion to or may be aware we filed a motion in civil court to have the city attorney's office disqualified from the case and the ethics commission of its own accord determined to hire outside counsel and did so. throughout this process to my one another mr. hemblig has been representing both the commission and the board simultaneously. now that the commission by vote of 4-1 has decided to move forward with the mayor's efforts to remove the sheriff or at least find that he engaged in official misconduct, it occurs to me or seems to me that the commission takes on a prosecutorial role in trying to

convince members of board of the mayor's position, at least as reflected in counts 4 and 5. so that you now have the same attorney, who is now taking on a prosecutorial role advising the decision-maker, and i think that raises a conflict of interest and we would therefore object to mr. hemblig representing the commission before the board. >> i am not sure -- mr. hemblig wouldn't be advising the board, but be the spokesperson for the commission to tell the board what the commission did. he is not going to be the one to tell the board what they should do, i gather. >> is he providing legal advice to the board. he is acting as the board's lawyer, as well as the commission's lawyer. i don't know if that contradicts your statement. he is playing the same role for the board that he played for us. >> why is that? >> because that is what i was

asked to do, to provide outside advice both to this commission and the board of supervisors on the process. >> if mr. hemblig is only planning on discussing process questions before the board, then we would withdraw the objection. but my understanding is that mr. hemblig or whoever is going to be representing the commission is -- i would presume -- going to be advocating for the commission's position. >> i guess that was not my understanding. my understanding is that we're going to have a different procedure than is typically occurs at the board. it would be a shorter presentation that would provide for the board what we did, timeline on which we did it, to the extent necessary what evidence we considered and then to the extent necessary summarize the findings that are already in this document. i am hoping that that is

actually redundant, since they have the document and the transcript. which is why it didn't seem it would be a conflict. i hear your objection and i'm certainly sensitive to not only sort of potential -- actual conflict, but potential conflict as well. so mr. hemblig, let me put you on the spot, do you have a viewpoint in light of mr. wagner's comments? >> i think mr. wagner raises a good point, mainly on a perception issue. what i believe the board is seeking and what i felt i could do without putting myself in a conflict situation is simply report to the board what this commission did and what findings it made. essentially reiterating the written document. the board wants someone there to be able to make that presentation and answer questions. i don't think there is an ideal

solution to who that right person should be. if it were the chair, it would be awkward, because the chair is the one dissenter from the decision. if it one member of four-person majority, that would be awkward, because that person may be asked questions to speak for the entire majority and not feel comfortable doing that. if it were me, there is some awkwardness with the legal advice that i might be called upon to present to the board and what i hope to be a very dry and neutral presentation of what the findings are here. but it puts me in some of the an awkward situation, so i don't disagree with mr. wagner, but it may be the best of the alternatives to have me do it given my neutral position. but i'm open to whatever the commission would like. >> mr. wagner? >> i think mr. hemblig said it

well in pointing out that it raises a perception issue. the question is -- >> so are you advocating then that rather than mr. emblig, who will give a neutral, as he put it "dry presentation," you would want someone from the majority to go there and make the presentation? is that what you are suggesting? >> no. >> who do you think should do it? >> well, we objected to any one from the commission. >> well, if we're going to send someone, mr. wagner, so if you object to mr. emblig. >> i don't think it's fair, respectfully commissioner to put it back on us who is the best person to advocate your position to the board in the process? >> we're giving you an opportunity to weigh in on how we should present this to the board. if you are going to object to mr. emblig and have no other suggestion, that is fine. but i'm giving you that opportunity and if you decline it, that is fine. >> then i would respectfully suspect that the director, mr.

sancroix explain the procedures and the commission's position to the board. ultimately as mr. emblig said, there is a perception issue and the ethics commission, i believe should take every action that it possibly can to avoid the perception of impropriety and to avoid the appearance of conflict. so that is why i raised the issue and i think that the director making the presentation would alleviate that concern, because the director is not counsel for the commission or the board. >> i am a little confused as to why the board can't have other counsel. >> i have no objection to the board retaining other counsel. >> i didn't realize that your engagement at the present time that you engaged by the board,

have you been advising the board during our proceedings? >> yes. and there has been one meeting about procedure with the board. one public meeting. >> i apologize, commissioners, were you waiting? did you have a question or just a general pause? >> i guess i am a little surprised and i don't know why the board doesn't have independent counsel. >> i can't answer that question. i am doing this pro bono. >> i know that and we're very appreciative of all of the help you have given us and i am just a little surprised that that it wouldn't be obvious to the board that there is to a

certain extent a conflict between you advising us and they as the decision-makers. because we're not the decision-makers, we just make the recommendation, but be that as it may, i would suggest that the solution is for the board to get counsel, find another pro bono. >> i would just also add respectfully commissioners and with all due respect to mr. emblig, it's my understanding that mr. emblig was retained by the city attorney's office of the city and county of san francisco. mr. emblig's firm hass a client the city and county of san francisco and that is further reason why we believe that the board should have independent and different counsel. >> one thing i'm sure we can't decide is who the board's lawyer should be.

okay? so i don't want to hear anything about who the board's lawyer should be. i can't weigh in on this or make any decision about that. none of us can here. what we're trying to determine is who should make the presence to presentation to the board? you object to mr. emblig, because maybe you are alleging actual conflict of interest. is there anything else you want to say about that, whether or not mr. emblig should give the presentation? >> no thank you. >> anything else, mr. wagner? >> as to the issues that have been addressed so far? no, thank you. >> would the city attorney have any view point on who should make the presentation to the board? >> obviously that is for the commission to decide. we believe that there would be no actual conflict if mr. emblig gave the presentation. we do understand the sheriff's

concern about perceived conflict. this was an issue that came up in superior court and one way we dealt with it was, in fact, having the city attorney withdraw from its usual representation of the council and board and this is not because of any unfairness of the party. normally our office would be advising and acting in many different capacitis in this city procedure. we are the city's lawyers in many capacities. so it would be here on behalf of the mayor. we would be normally advising your commission as you are familiar in other matters. we would normally be advising the board. those are our standard roles. and there is nothing wrong in any way with us having all of those different roles simultaneously. >> i don't want to hear about that.

>> our understanding of mr. emblig in this matter, we have no official position. we think it's permissible to have mr. emblig present the commission's viewpoint. my view is that the safer, more conservative route would be to have someone other than mr. emblig do it, but we don't believe there is an actual conflict if he does. >> okay. thank you. mr. emblig? >> i just want to make one clarification for the record. i was not retained by the city attorney's office. i have two retention agreements, one with the ethics commission, one with the board of supervisors, both agreements were approved in public sessions by the respective commission and the board. both agreements did point out that i would be advising both the commission and the board. so this is not something new. this has been out there since the very beginning, even before the beginning of these

proceedings. >> my concern with mr. sancroix doing the presentation is that he wasn't here for a lot of the hearings. he has many responsibilities, and in light of all of the resources devoted to this effort, could not attend every session. nor do i think he has really been reviewing the transcripts. so while in most cases, i think he is by far the best person to present these kinds of things to the board, i don't think this is one of those situations. i think the alternative to mr. emblig would be a member of the commission. i welcome the views of our commissioners. >> i for one have no objection to you being the spokesperson even though you dissented to