to me that the argument about this unprecedented power for thq mayor has been overblown because the mayor cannot remove anyone from to this board, and this board cannot restrain theg=&%ç mayor m removing -- or suspending people in the future.quy6p"p%so i justw your take on that. >> well, we agree that the mayor cannot unilaterally remove people. he can certainly cause them to go through a lengthy and difficult battle to get to this point. but what we think that you can do today, that will significantly reduce the possibility that a future mayor might use this power for inappropriate reasons, is by saying we don't sustain the charges and it's because of the reasons set forth in our briefing. >> supervisor wiener: and i just think ultimately this board

makes its own decision and it's not about the mayor having unprecedented powers. just wanted to make that point. it's your position if i understand it correctly that if the sheriff had done exactly the same thing that happened on december 31, on january 9, that same facts, that would still not be official misconduct because it was not -- it was happening in his private relationship with his wife. is that correct? >> yes, that is correct. it was not conduct that was -- that occurred in the performance of his official duties. as articulated the bright line articulated by jefferson hur. >> supervisor wiener: i'm sorry to pick on our tax collector. i will apologize to him afterwards. but it's too easy an example to use. if our -- if a future treasurer tax collector, not our current

one, while in office, on the side engaged in bank fraud, and again for whatever reason, clearly committed bank fraud but the prosecution falls apart so there's not a conviction leading to removal under a separate section, it would be your position that he would not be removable under section e and would have to be either recalled or defeated in the next election? >> yes, that'slcl5 correct. >> supervisor wiener: and same if an animal care and control commissioner were running a dog fighting ring on the side, they would not be,f+!y removable, unr this section would have to not again assuming no conviction for whatever reason. respectfully, supervisor, i think we can come up withn4qt m, many hypotheticals to explore the mayor's position or our

position. and, you know,zqíaáá we're left with though is the law. chartereejj4 section, and if ts any am biewg iewt, and the attorney -- theq4l mayor earlier couldn't tell you which misdemeanor might not be official misconductr=;xg or mi. so similarly, i don't think we're going to be able to articulate for you everyla] possible nuance, because the law itself is ambiguous. theredzl(é is, as the ethics commission majority said, there's room for disagre&, for disagreement, where the law is ambiguous, you ultimately shoul come down on the side of the sheriff and the voters. >> supervisor wiener: i understand. we also[ + hypotheticals probe and push to actual position is, because people talkedwaógt about preced. and so i think going both ways we heard some92gl i think it's fair to push

hypotheticals both sides to -- the particular argument. i appreciate it. >> president chiu: thank you. ladies and gentlemen, we've been going for two hours. i understand our stenographer needs about seven minute break to rest her hands and switch out a tape. i suggest we recess for a few minutes and come back. supervisor elsbernd has some recess). >> president chiu: we are now back in session for our special meeting of 2012. we are in the middle of counsel. and i'd like to recognize?÷sgt

supervisor elsbernd. >> supervisor elsbernd: thank%+q you, mr. president. a few questions. the first kind of follows up on the discussion that supervisors. in it supervisor wiener and you entered into a dialogue about the issue of this language being too vague, in your view that this language is too vague in the charter. just off the top, though, when i hear you argue that, was that not the exact argument that mr. mazzola made to the court, and argued that this language is too vague and the court itself found that, no, it's not? help me understand. >> well, so at the time the mazzola case was decided, the charter provided for removal for quote official misconduct, unquote. that's all. and in response to a void for vagueness challenge to that language the maz ol-a court decided, no, it's not

unconstitutionally vague because we have all these cases and this developed body of law about what it is, what official misconduct is. and that's when they went on to say it's misconduct that occurs in office number one and relates to your duties. the part we object to is the subsequent language -- >> supervisor elsbernd: 1995 language. >> yes. >> supervisor wiener: was not the 1995 language directly a result of the%f7r mazzola -- or than a couple of words verbatim, didn't we include thatñll langu? >> some, not all. >> supervisor elsbernd: one of the things that i've struggled=f with as i've read through the briefs, your comments, and you was understandably the sheriff very limited view of the role of

the3qqt sheriff. can you articulate again for me your view of the role of thekós" sheriff. >> well, i think that a distinction has to be made between>wy the role and the dut, articulate enough about that. but we see the duties as they are codified, as%bhx5 relatively limited. >> supervisor elsbernd: so then -- >> president chiu: supervisor more closely to the mic. >> supervisor elsbernd: i apologize. you mentioned briefly today ando in your briefs the sheriff's job and i think administering warrants. >> yes. other piece. and pretty much that's it. so then your argument that's thv official duties. but then -- i mean -- >> he may do somethingkkç el >> supervisor elsbernd: but that's the official part. so, in other words, if we were to go back, forzón' example, te campaign debates that the

sheriff entered into, or/kç maye go to the campaign website where the sheriff talks about the as sheriff, that is not the official duties. because he's not commanded to do any of those things. he's commanded by thebsqqa chao do certain specified things, cheefl to keep the jail, andw>no execute lawful orders of the court. >> supervisor elsbernd: and some of the duties that have been imposed to him outside of the charter, ordinances that have been passed, appointing him to various boards and commissions, requiring he play a role beyond those limited official charter duties would those be considered official? >> well i'd agree if he's commanded by some legislation to perform other things, and then, yes, we would consider those to be part of his official duties. >> supervisor elsbernd: okay. and then somewhat connected to that, the sheriff's department

itself has -- and excuse me for not having the exact language but i think it has some code of conduct that the sheriff in front of the ethics commission he was asked to discuss, and as i recall, reading through the transcript, the sheriff, in a sense, acceded to the fact that his actions violated the code of conduct. so, again, in your mind, is that code of conduct separate and apart from official duties? >> yes. i mean certainly, as in any profession, there is a code of conduct that one ought to try to follow. however, it does not follow, from the fact that you are attempting to abide by this code, that you've committed official misconduct when you've done something that is outside the scope of your official duties. you're not in the process of performing those duties. >> supervisor elsbernd: so in other words, practically speaking, the sheriff's department code of conduct, in your mind, extends to duties,

responsibilities as a human being, as a sheriff, outside of the official duties. >> well it's88f just -- it's something for which, if you violate that code of conduct you can't be removed from$7éñ officr official misconduct. i think that's how i'd answer4em that. >> supervisor elsbernd: okay. thank you. cohen. >> supervisor cohen: thank you very much. mr. wagner, when you were at thj podium, when your opening statements was the punishment would be curious to hear on what punishment is. >> i think the superior5hi2n cot imposed an acceptable punishment. the sheriff pled guilty tosjlje misdemeanor false imprisonment to dispose of this case the district attorney thereafter said publicly he believed justice had been served, or his spokesperson rather. so that would be the extent of

the punishment, what's already happened in the criminal justice system. >> supervisor cohen: thank you. >> president chiu: supervisor campos. >> supervisor campos: thank you, mr. president. i wanted to follow up on a hypothetical that supervisor wiener had asked, because i was a little confused by your answer. and this is the hypothetical of the future -- a future treasurer engaging at the same time that they're performing their duties in a bank robbery. and you said that that couldn't be official misconduct. and i was confused by that answer because my understanding of your argument is that depending on whether or not the the -- they use or leverage their authority in thattest that they could be engaging in

official misconduct by your own analysis. am i incorrect in -- >> no. i think you're absolutely correct. if the power of the office is used in some way to facilitate a crime or any other misconduct, that could be construed as official misconduct. >> supervisor campos: i wanted to clarify that because the answer left me with a different impression. thank you. >> president chiu: thank you. colleagues, any final questions to sheriff's counsel? supervisor farrell. >> supervisor farrell: thanks. so just to be clear, on the timing issue, we've talked about this, ability and i know it's cn the briefs, your position is that mr. mirkarimi had no responsibilities towards the sheriff's department at all prior to the swearing in day. is that correct? >> i think the -- it's not necessarily that he had no responsibilities per se, but he

had no duties of office. of course a person who's elected has certain responsibilities that we commonly understand, that they need to get ready to assume office. but that's not a duty, per se. because they're not actually in office yet. so i think we can distinguish between the responsibility that an elected official has to prepare for assuming office between the time of election and the time that they're actually in office. >> supervisor campos: and if i could also talk -- madam city attorney, you offer a different opinion that it attaches basically on election day. is that correct? >> yes, that's!cbgc correct. >> supervisor campos: but no and therefore it's -- that's-iuñ whatever, november, whatever it was, is when it attached, with yourl5twe understanding. >> i don't want to speak for all cases. there are cases-at where a -- te

are cases where a public officialjl8wñ is reelected to te same office and there are jurisdictions that cut off there are cases where private individuals coming into office. i mean there8bát many factual scenarios. in this particular case, i certainly think that1é2@ the du- that the duty attach no later most reasonable interpretation is that it attached on election >> supervisor campos: all right. >> president chiu: thank you. colleagues, any other questions okay. at this time, why don't we hear rebuttal from mayor's counsel. there are so many things that i v basicü core issue that's before you. and the issue that the sheriff

raises againoznmez again, and hs raised from the very beginning, is his conte$ an that whenw sheriff commits domestic violence, when he pleads guilty to thatx crime, when he serves a three year domestic violence sentence, that'sin2uf just his n private business. that has no relationshipjs+rñ ts office, as the sheriff of the city and county%fr of san francisco. and that simply shows a continuing failurez/[. to underd the issue of domestic violence, to]@j understand the pivotal importance that this city's response to hisejáq domestic violence as sheriff carries. watching. and i think many are probably astounded by the notion that our normally progressive jurisdiction, our jurisdiction that usually reaches out to protect the victims, to protect

the powerless are considering allowing a sheriff, and entertaining the notion that domestic violence does not relate to the duties of a chief law enforcement officer. it's important, i think, to remember that this misconduct is very significant. it is not just a mistake. it's not a mistake on december 31st. it's a crime. and it's a serious crime, with a serious sentence. >> president chiu: continue please. thank you. >> and the sheriff's -- that domestic violence doesn't matter when it's committed by a sheriff. he wants you to believe that the voters would have you remove a sheriff if he commits petty theft of office supplies, but not if he threatens the life of a family member. that can't be right.

i'm just for clarification of the audience, i'm not suggesting that's what he$ñ, did. i'm posing hypotheticals.(@=( my mistake. >> president chiu: ladies and gentlemen, we need to have order in the chamber. i ask you to respect that. that is the rule of this chamber. counsel, please proceed. >> thank;mh you. every sheriff's deputy in the san francisco sheriff's department knows thatrj:c if ty did the same thing, that sheriff mirkarimi did on december 31, av2y1 if they were then convicd for it, that they would be in department misconduct policy, that they would be subject toe! termination, that this would relate centrally to their job. and suggest that a whole different set of rules applies to himwb"n than to the people o are supposed to follow his lead is simply incorrect and it shows youzúp÷ the fundamental failingh the logic of his pwnmon.

>> president chiu: thank you, counsel. colleagues, any follow-up questions to either of thevñ'íi parties? okay. seeing non4tt9/"áju time, it is time for public comment with regards to this. our practice, we want to prioritizeu"es@ seniors, indivs who are disabled, or parents who kmje young children with them. individuals to please step up to if we could please have some quiet. if noaction coul;v: ñ folks cour if we'knj, could please have se quiet in the chamber. prioritize seniors, individuals

who are disa]"íg with young children. and once you've had an opportunity to speak, because we do have a significant overflow today, if we could ask, if you could please leave the chamber so that we can allow other members of the public to participate. i am going to remind folks -- i'm going to wait until the room's quiet before we start public comment, okay?uñ=:pyz >> president chiu: okay. let me again remind everyone here in the chamber of our first rule of order. persons in the audience shall not express vocally support or opposition to statements during

board meetings. applause or expression of a disagreement are prohibited. i really need to reiterate that or else we are not going to have orderly proceedings today. we will be here as long as it takes for members of the public to provide public comment. each member of the public shall have up to two minutes. and with that why don't we hear from our first speaker. >> ladies and gentlemen, it is my pleasure to allow the man i like him, and that is -- to him, to talk before me. i would like to hearing for my leader6 >> president chiu: and ipxésú wt to welcome our former mayor back. thank you. >> thank you, mr. president. i'migxy here by virtue of my od age, which you've called as a right to go to the front of the line. thank you very

anniversary report acknowledged me as mayor for adding its own new sprnóigu subpoena powers ana bigger budget for$fac domestic violence for each of my four years of mayor and i7dc#r did it because i believed in the importance of domestic violence, something i've been an advocate for myiij entire career. that's the policy-maker in me. me says that most of all, most ofá5ñ unprecedented mayoral power3t(÷ claiming the discretion to charge any elected official in misconduct with or without a conviction on a case-by-case basis. mayoral discretion, crear to what some have said can threaten any elected official by putting

him up against the full force and power of the mofts mayor's office, degree, city attorney and countless others. any one of you, any supervisor, who goes to a labor protest, who goes to a hastings regent's meeting and is arrested and charged could be subject to that kind of case. let me just say in closing, as a former mayor, i know extraordinary power. during the -- earthquake i used the state of emergency to close neighborhoods, hold people without charges, put the army on the streets of our city, but i never had this kind of power, and no one should. >> president chiu: thank you, mr. mayor. i know you -- you've second -- >> my name is -- i was outside yesterday to support our president. and today, i am here inside the

city hall to support ross mirkarimi. ladies and gentlemen, let me ask all of you, include our deputy attorney, when mr. chris daly, he was here, he prove to me and prove to the city that the former mayor gavin newsom -- and alcohol and he have relationship, this is criminal almost. what you talk about criminal, you did, or he did. -- to have discrimination -- ross mirkarimi, and -- to have -- that our president or our mayor wanted to have in our city hall. no puppet. we need people have courage like me to say let ross mirkarimi go to his office now. >> president chiu: thank you.

thank you very much. next speaker. >> thank you for the1k

supervisor wá indecency and incorrect right action, in my mind, hei$@ñ abused the power f his office and should bd2r chard under those terms with official misconduct of the supposition of future behavior, whichkg] supervisors e questioned, unless you can prove he's auzç5rp& abuser, it should have no standing for yourr37s consideration. exonerate the sheriff by the strength of your collective defensess(2 of your office. thank you very much. >> president chiu: thank you very much. next speakermeuxr pleaset$>xs. there is a microphone to your closer to you. >> myy!y name is diana hamilto.

i live and i've voted -- i lived for ross mirkarimi. mirkarimi was?,, i was guilty of that too. he's just a regular joe, who happened to be very ambitious. he done very good work in my community. and i appreciate it. now, listen to what his wife said in the social media. and it's clear that she want her husband and her child intact. that's why i'm asking you to reinstate mirkarimi for sheriff. i voted for him. reinstate sheriff ross mirkarimi please. thank you. >> president chiu: thank you. next speaker.

>> good afternoon. good evening. my name is marva brooks. i live in district 5. and i'm here to support ross and his wife. let me tell you all something. in district 5, when he first got &?ñpdo you hear me? a mess. young people doing whatever they want to do. everything thatd.fn happened th, he was the first person on scene. he was there. how many people you know, how many supervisors do you go around and talk to these young people in neighborhood. to 'em. you don't know if they got a gu. he has never showed any fear.

if anybody fell,6# shot, whatev, he was there in his pajamas and you could see it, middle of the night. something. he could tell those people, young men, old men, and any othuñsnk that's in that departm, in the sheriff's unit in jail, relate to them, he could say what he'snq02 done. david, mark, ross,s#z5 paul, iw all -- i worked with all of them. i workedl

everybody wants that think he did. he diducwksñ do this. i call him the gentle giant of my office. there. all of them were. all i'm asking youj2w7i is to consider, to understand -- >> president chiu: thank you thank you very much:?o0';. thank you very much. next speaker. sf gov, i think we have something on the projector.