of their duties. and that's why the court of appeals will'a"dc say this is nt unconstitutionally vague, all at this definition. in fact, the amendment to the almost exclusively drewa5ñúz from the language that is included in the mazzola case. there was maybe one or two words thatzk9u" added. to this day. what does mazzola say.ns5 it says misconduct has to occur while the public official is in office. because a public official doesn't have any duties unless they are holding that office. and if they don't have any duties because they haven't taken an oath and been sworn in yet, then there is no way that any conduct of theirs can be related in any way to any of

their duties. and that's the exact situation that you're faced with here. the mayor has conceded today that what we're really talking about is the acts on december 31 of last year, when the sheriff grabbed his wife with sufficient force to leave a bruise. which occurred, by agreement, eight days before he was sworn in as sheriff. on december 31, he had no duties as your sheriff. he could have spent the entire two month period, between being elected and being sworn in, on a desert island somewhere, relaxing, before he came and got to work. and people might criticize him if he did something, but you couldn't say, hey, we're going to remove you for official misconduct because you should have been getting ready to be mayor and that was a derision of your duty. the reason nobody would try to do that is because he had no

official duties, he was not sheriff. now, the mayor's very good at trodding out a parade of horribles for you, designed to scare you into voting to support their charges, a law enforcement official, or a public official could rob banks on their way to their inauguration, and there's nothing that anybody could do about it. well, there's a couple of points that i'd like to make about that. number one is the charter of san francisco, while an admirable document, is not perfect. in fact, there's no provision in the charter that permits anyone to remove the mayor for official misconduct. the only way a mayor can be removed is by recall, or defeat in the next election. so the mayor could commit a first degree murder, and not be removable, unless the voters decide to take matters into

their own hand and remove him. the mayor has also made the argument that this removal provision,ka@u 15.105, is a valuable, speedy and effective tool. and they want you to do the work, that the voters might have to do if they were to decide to launch a recall election. well the voters have decided to launch a recall election, thateñ issue would be decided next month. so their argument that this is procedure is not borne out byk5p the facts and the length that this entire proceeding has taken.nt7dñ now, the other problem with the[ mayor's position is that it does 9ñjs not give future office-holders any guide ns as to what is and what is not official misconduct for the

sheriff or any other electedós)w official. the topic of a dui has already come up. elected official runs afoul of theeeñ campaign finance laws and doesn't file the reports on time or correctly and is subject to some kind of disciplinary proceeding by the fppc or any other body. would that constitute official misconduct? would it be official misconduct for the sheriff or members of the board? under the mayor's theory, i think just about anything, members of the board of supervisors might do, could be deemed to be official misconduct. what if you declared bankruptcy. you've made contracts with people and haven't paid them money you owe them. under the mayor's theory that could be official misconduct because you as a body promulgate the laws here. if you file your tax returns

late, if you default on a loan, and some of the members of the board have already posed this question, we're certainly happy to engage in answering any questions you may have, but the problem with the mayor's position is that it is not a workable standard. and it doesn't have any support in the law. that's why, when they tell you that our position, that you have to be in office in order to commit official misconduct is unsupported, they have to go to other jurisdictions to try to get some case law to support their position. and we submit to you that you don't have to look any further than the the case law here in california, and it's right there on page 150 of the mazzola decision, wherein the court of appeals said there has to be a violation or omission of a proscribed act committed while in office. if you're not in office, you

there's nothing to measure the conduct against. and so for those reasons, we urge that you vote to reinstate the sheriff. thank you. >> president chiu: thank you, mr. kopp. i know we have a number of questions to be posed. i will start things off, as i ask the mayor's counsel a number of questions to really understand the full extent of the arguments. first one i want to address the topic of timing. you say that by definition, official misconduct cannot occur until the swearing in of the sheriff. and as mr. kopp just referred to, in the mayor's papers, he wrote that if any public officer of any of us got reelected we could rob bangs, rob old ladies with impugnity and immunity. i did not hear from you that is the case, in other words we could do those things and should not be removed from office. >> no. actually, there's a provision of the charter that could lead to

the removal ofdqç an elected official, and that is 15.105(c), which says that if a person is convicted of a felony crime that involves moral timing of the act that underlie the conviction don't matter. cause removal. so, for example, you commóhvz a heinous crime on your way to your inauguration you can be removed but it'srs going to presume that the criminal process is concluded before that can begin. >> president chiu: and÷e5%kg ifi understand, if the incident that happened on december 31, if it hads->r happened after january , didn't constitute official misconduct. >> correct. a bright line -- excuse me, there should be the bright line rule that official misconduct

only exists when the individual is performing the duties of their office. and this is the view expressed by mr. hur, in the minority in the ethics commission. but that's the only way -- if you just hear the phrase, official misconduct, it sounds like you were using your office to do something or to not do something that you're required to do. and all the official misconduct cases in the history of california jurisprudence involve that exact same situation. it's designed to fetter out corruption in the public life of the official. and for personal misconduct that is not done in the performance of one's duties, there is a remedy and the remedy is recall. >> president chiu: so if i were to -- when i look at the findings of fact, the ethics commission unanimously found all five members found that the sheriff-elect committed acts of

verbal and physical abuse against his wife, grabbed his wife with such force that her arm was bruised, restrained his wife and violated her personal liberty and then pled guilty to the crime of false imprisonment. what more would have had to occur for that to have risen to the level of official misconduct? >> number one, the acts of violence that you just mentioned would have to occur while he actually held the office of sheriff, which he did not. and, number two, these facts had nothing to do with the sheriff performing the duties of his office, which we take a very narrow view. the charter 6.105 says what the duties of the san francisco sheriff are and they're essentially to keep the jail and execute lawful orders of the court. and it's our position that everything else is a gloss on

that. so our position is that in order to have official misconduct, you've got to be performing one of those duties that is delineated in the charter and do it improperly. otherwise it's not official misconduct. >> president chiu: if i could jump to that for a second so the standards for law enforcement and the sheriff obviously there's been an argument that for peace officers there's not much of an off duty protection for committing crimes. we have deputy sheriffs in this building andxdú throughout who could be terminated potentially for the type of conduct that was involved here. deputy sheriff could be held to one standard, why their boss, to a different one. >> i think this is where the will of the electorate comes into play here. there is a way forreú elected officials to be held to that same standard as theirå subordinates and that's through the recall or through the voters not reelecting them.

historically, in the sheriff's department here in san francisco, individuals who crimes, manslaughter in onev instance, have held very high positions in the sheriff's department. >> president chiu: i have one mazzola case. my read in the mazzola case,#ísn that situation, it involved the conduct of an airport commissioner who had been aq÷pq labor leader who participated in a strike. and one thing that was stated in the case wasf thq a specific statutory violation is normally the basis for charging an official with misconduct. in that case mazzola didn't violate a statute that would give rice to official misconduct. here we have a different situation. we have a sheriff who has pled guilty to violating penel code 236. to me that seems like a fairly big difference between what happened with mazzola and what we have in front of us. could you address that point.

>> thank you. i think the applicability of mazzola to these facts, that's exactly correct, that mazzola, there was no clear violation of a specific statute. but the part of mazzola that's relevant to this case is the part of mazzola that defines what does it mean for a conduct to be official. where the mayor says that mazzola is irrelevant because the voters 1995 amendment to the charter, the standards of decency, good faith and right action clause was not enacted at the time of the mazzola decision so mazzola is irrelevant the standard of decency clause controls here. the standards of decency clause is relevant to what kind of conduct is misconduct it is not relevant to what constitutes

something that is official. as we know from mazzola what constitutes something that is official is what occurs in office while in office. yes, it's true that in this case we do have a violation of a specific statute that occurred prior to the sheriff being in office. however, as i understand it, the relevance of mazzola that is controlling here is not as to the decency clause but as to whether or not the sheriff's misconduct on new year's eve, 2011 was official and it was not, according to the clear bright line rule of mazzola. >> president chiu: thank you. supervisor wiener. >> supervisor wiener: thank you, mr. president. a few questions. first, has the sheriff takenn>ña position 15.105(e) is invalid vague? are you taking that position?

i believe i read that you took that position(x in court. so my question is, is that your position? >> yes. that has been our(ytoú position. we don't intend to argue it. we submitted it. if i couldnr8íñ answer. we think in a situation like this, any time there's any ambiguitynljhc in a statute ito be resolved in the light most favorable to the sheriff. >> supervisor wiener: so if we -- if your position is -- or given your position that this provision is unconstitutional -- is unconstitutionally vague and therefore invalid, is it your position that we don't have the power to remove someone from office based on subsection e? >> yes. but we also are going to face the political reality that undoubtedly you're going to make a decision today. >> supervisor wiener: i understand. but your position is that no one can be removed under this section because the voters adopted an unconstitutional provision? >> i think that -- we don't

think you need to come to that conclusion one way or the other, in order to find that the sheriff should not be removed from office. so, yes, it is our position that it's unconstitutional. however, i don't think that's germane necessarily to the question before you, in terms of applying the facts and the law here. >> supervisor wiener: well although if we were to say reject all of your other arguments, if the board were to do that, that would ultimately be the bedrock issue if you're taking the issue that we lack the power to do it because it's unconstitutional. so i guess my question is let's assume a different set of facts. let's assume the sheriff, after being sworn in, is in the jail one day and gets really mad at a prettprettya prisoner and beatst prisoner and commits a heinous act and let's assume there is not conviction. for whatever reason prosecution

gets botched and so a conviction never occurs but we have a video of the sheriff with no provocation beating the heck out of a prisoner and doing something that i think most people would agree is a bad thing. could that -- could the sheriff be removable under subsession e, given that your position that it's unconstitutional and vague? >> absolutely. and the reason is, because it's not our position that the entire subsection e is unconstitutional. the clause in particular that we object to is the standard of decency good faith and right action clause that was added in 1995 and has been untested in the courts. there are other aspects of e, there are other clauses, the commissioner -- chairperson hur put before you the three different causes, and one's inaction, one's conduct, et cetera. under the other two, a clause is of subsection e, we believe that those are constitutional and would apply because they

directly relate to the performance of official duties. >> supervisor wiener: so one can be removed under this section, it's your view this simply doesn't rise to that standard. >> yes, absolutely. >> supervisor wiener: i also -- in the briefing, and i think in sort of a lot of the 43ad:(esenting the sheriff in ts matter, there's been a lot of talk that this would give unprecedented power to the determinations, and it would just put the mayor really in thy driver's seat and just give undue power to the mayor. and although=wz÷ i understand super-officially that argument, the challenge i have with it isu that ultimately the mayor doesn't remove people from office, ultimately the board of supervisorcdyk removes or doesnt remove someone from office. yes, the mayor can suspend someone and they$-2ft don't getd and i'm not in any way

understating the severity of discussion about whether the person should get paid once i think there's an argument there. not remove people from office and this board can't restrain with you here, never do this again. the mayor can do it in a year ia a similar situation happens. and so, you know, i guess what 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