the special meeting of the san francisco board of supervisors. it is tuesday, october 9, 2012. madam clerk call the roll. >> clerk calvillo: supervisor avalos, present. supervisor campos, present. supervisor chu, present. supervisor cohen, present. supervisor elsbernd, present. supervisor ferrell, present.

supervisor kim, present. supervisor mar, present. supervisor olague, present. response wiener, present. mr. president, all members are present. >> president chiu: ladies and gentlemen, please join us in the pledge of allegiance. madam clerk, do we have any communications? >> clerk calvillo: there are no communications. >> president chiu: if you could read three items related to the official misconduct hearing. >> clerk calvillo: item 1 the board of supervisors sitting as a commission of the who will for a public hearing on the san francisco ethics commission related to charges of official misconduct presented by mayor

edwin lee against sheriff ross mirkarimi. item 2 is the motion sustaining motion of official misconduct. in the three is not to sustain the -- of official misconduct. >> president chiu: why don't we start with a couple of housekeeping items. we have a number of individuals unable to join us due to the capacity of this room. there are at this moment at least three overroom rooms, room 263, 273, and on the fourth floor room 416 upstairs. through the course of this afternoon and evening, as there are other rooms made available on the fourth floor, we will open them up to the public as well. the procedure for today's hearing was set by a motion of this board of supervisors on july the 31st, 2012. let me go over that. today's hearing will involve presentations by the ethics commission, by representatives for the mayor, and for the

sheriff, in the following order and with the following times. first of all, for a presentation of up to 10 minutes, we will hear from the ethics commission. and i want to thank and welcome the president of the ethics commission who is with us today. then we will hear from the two parties involved in this hearing. as the charging party, the mayor will go first with a presentation not to exceed 20 minutes. the sheriff will then make a presentation not to exceed 20 minutes. and then the mayor will have the opportunity to respond to the sheriff's presentation, with a response not to exceed five minutes. after the presentations by various parties, there will be time for public comment. each member of the public will have opportunity to speak if you so choose up to two minutes and that will be followed by deliberations by the board. as is our normal practice during presentations if colleagues wish to ask questions, they will hit the roster, i will recognize them in that order. the time for each party's

presentation will be pause for questions and answers so parties will have full time for their presentations. i want to remind members of the public for the first rule of order at the board of supervisors. rule 1.1 states that persons in the audience shall not vocally express support or opposition to statements during board meetings. applause or expressions of disagreements to the board proceedings are prohibited. and i will enforce this rule. now, there have been numerous requests to take a potential dinner break which we will likely do around 6:30 or so. i understand we have a court reporter so we may need to take some additional shorter breaks to relieve the dictation with that, unless there are comments, why don't we turn it over to the ethics commission.

>> good afternoon. thank you, president chiu, distinguished members of the board, i am "ben-hur", chair of the san francisco ethics commission. as you have likely reviewed the commission engaged in a lengthy and extense sieve fact finding investigation relating to the charges of official misconduct. our aim was to provide a hearing that was going to be both thorough and fair, and as efficient as reasonably possible under the circumstances. to that end we engaged in nine separate hearings, covering five and a half months. we received and reviewed 37 legal briefs and other submissions by the parties. we reviewed and handled objections to 17 different declarations. we amassed almost 2,000 pages of

reporter's transcripts. we heard from five live witnesses, and also dealt with one bomb scare. thankfully only one. after this extensive procedure, the parties were given an opportunity to present argument before us, during which all the commissioners had an opportunity to ask questions, both on the legal basis for potential findings of official misconduct and for the underlying factual allegations. after having that time to ask questions, we entertained public comment, and engaged in several hours of deliberations. the result of those deliberations was the commission determined by unanimous vote that the mayor had proven that the sheriff had abused e elaina

lopez on -- that he had certain duties as sheriff-elect, that he was in fact sworn in as sheriff of the city and county of san francisco on january 8 and he pled guilty to the misdemeanor of false imprisonment in march 2012. following the determination of the factual allegations, the commission engaged in extensive discussion about whether the factual allegations supported finding of official misconduct. by a 4-1 vote the commission decided that the mayor had sustained the charges of official misconduct on the basis of the physical abuse from the sheriff on december 31, 2011, as reflected in counts 4 and 5 of the amended charges. now, if you've had a chance to read the transcript of those

deliberations you perhaps will be sympathetic to my challenge of summarizing for you the majority's view. there were many nuances to my fellow commissioners' points and ultimately the vote, just by nature of the process, had to simplify the bases that some of them had and some of them perhaps did not disagree with. so i will do my best to communicate to you what the bases of the decision were, although probably the best place is the transcripts in the order that we provided to you in an effort to summarize what the findings were. once i do that, i will give you some brief explanation of the reasons for my dissent. the majority consisted of commissioner studley, vice chair studley, commissioners lu, reny and han. they determined the the conduct fell below the standard of decency and good faith in action required of all public officers.

the majority did not find credible the sheriff's and ms. lopez's accounts of the incident on december 31, and found the conduct relates to the duties of office because the sheriff is the top law enforcement officer and also responsible for handling domestic violence programs within the county. now the commission believed -- the majority believed that while there was some room for debate as to whether this conduct or decency clause is limited by the relations to the duties clause, they found that it didn't matter. ultimately whether or not the decency clause is related to the duties of office in this case official misconduct had been shown. now, i've looked at this charter provision quite a bit so when i say things like conduct, clause, and decency clause, they mean something. perhaps -- not sure how much you all have looked at it.

so i am going to borrow a definition that the parties ultimately agreed to, and this is a handout actually that i believe the mayor may have created. so this is the language of 15105e, but broken down in a way to identify theirs clauses within that section. it reads, official misconduct means any wrongful behavior by a public officer in relation to the duties of his or her office, wilful in its character including -- in the actual provision there is no bracketed inaction clause but that's what i will call it --ny failure refusal or negative of any officer to perform any duty enjoined on him or her by law. now that is not the basis for the commission's decision. the focus of the commission's decision was what's called the conduct clause or the decency

clause. and that states, conduct that falls below the standard of decency, good faith, and right action impliedly required by all officers. now because it is modified by the first section there, relation to the duties of his or her office, the commission determined that whatever the standard of decency good faith and right action impliedly required by all public officers must be in the -- in relation to the duties of his or her office. there was also a fair bit of discussion among the commissioners and in the majority ultimately determined that mazzola, which is a case by the california court of appeals, did not apply to this proceeding because, at the time of mazzola, the conduct clause was not in existence, and therefore they deemed that mazzola was not

controlling to this case. i dissented on three grounds, principally two grounds. first, that the law does not actually support the broad meaning of official misconduct that the majority propounded, and second, that the public policy suggests that we should interpret this provision more narrowly than proposed by the majority. here is another version of 15105e. again, its the same language but merely an attempt to emphasize different portions of it. if i could have the overhead please. again, this version of 105e is

identical to what's in the charter except for the addition of option 2, which i can talk about if any of you all are interested. and in the bolding of certain sections, and the numbering of the two clauses. again, the commission's decision was based on the second portion, conduct that falls below the standards of decency, good faith, and right action. the plain language suggests that there is only one standard. there cannot be one standard for the sheriff, one standard for the board, one standard for the city attorney, one standard for other elected officials. in my view there was no way to read that to require or imply multiple standards. but the import -- but the result, the conclusion of the majority's decision requires that there be a standard, and it be applied to the duties of the sheriff. which i think is, in my stimulation, not the -- the --et

maition the best interpretation of the stoocht. the way you look at the standard whether its relates to the meaning, is it done in the performance of duties of office or under color of law. in other words, is it actually done in your official capacity or are you purporting to do it in your official capacity and i think case law supports this view. while the majority believe that mazzola did not apply mazzola actually did discuss this portion of 15105e, and they discussed it extensively and determined that relation of the duties of his or her office must have a direct connection to the duties. and finally, as a matter of public policy, i think the voters wanted this to be clear, and i think that clearly they intended for official misconduct

to be different than some other type of misconduct, likely personal misconduct. the reason i dissented is because if you follow what the majority did, they did not provide a clear basis for how official misconduct and personal misconduct would be delineated. and i think a bright line rule. >> president chiu: thank you. >> required here. thank=)ñ you. >> president chiu: colleagues, any questions to the chairman? supervisor olague. >> supervisor olague: i'd like to hear him continue his sentence. >> president chiu: could you finish your final thought. >> thank you, mr. president. there is -- i think there is a -- in my view, there is a temptation here to view the conduct in a vacuum. i think the conduct was morally inappropriate. i think it was wrongful. but there must, i think be a

line between official misconduct and personal misconduct and i could not find a principalled way to make that distinction based on the arguments suggest by the mayor and ultimately the decision made by the majority. thank you. >> president chiu: supervisor olague, do you have any follow-up questions? supervisor cohen. >> supervisor cohen: you mentioned you had two principles that you were debating, one the law doesn't support misconduct, and two, you said public policy -- public policy in that it needed to be a more narrow -- it needed to be more narrowly viewed. what public policy were you referring to? >> i think the public policy implication here is how this procedure is used. i think it was meant to be narrow. it hasn't been used very often. and i think we want to interpret it clearly so that elected officials, so that the mayor, so

that the people understand exactly what we're talking about when referring to official misconduct. so i think there is a public policy goal of having clear interpretations of charter provisions. >> supervisor cohen: maybe i misunderstood your statement. i thought you came to this conclusion based on previous public policies that you taken in and interpreted to -- >> i apologize. the public policy is interpreting statutes in a way that they can be clearly followed and applied by the commission, by electeds, by the board, by the mayor and the public. >> supervisor cohen: can you give me an example of which public policy you used to come to this conclusion. >> an example of -- >> supervisor cohen: i'm just trying to follow your thoughts. >> sure. the public policy i was referring to is the need to interpret statutes in a way that

they are as clear as possible. now, it's not always possible to create bright lines. and i think my fellow commissioners were right to say it's not always going to be possible to create a bright line and a bright line is not always essential to determining how a statute should be read but i think there is a public policy value to having these provisions interpreted as clearly as possible, and that's the public policy i'm referring to. >> supervisor cohen: is this public policy established? can you think of a bright line that already exists that all of us -- >> a speed limit is a bright line. there are many bright lines in the law. now again not every law is susceptible to a bright line but by and large i think it does benefit the public when the laws are clear so that they can easily be followed. >> supervisor cohen: thank you. >> president chiu: supervisor kim. >> supervisor kim: you somewhat addressed this already when you said that it may be challenging for you to address the actual relationship to the

office that was determined by the majority of the commission, but since you were sent to represent the commission i thought i would ask, so having read the transcripts several times actually the one question that was not answered to me is what exactly is the relationship to the office? i heard a couple of examples such as the sheriff runs our domestic violence programs and he committed an act of domestic violence. from your understanding of the majority of the commission is that the relationship, or was there another kind of clear delineation of what that relationship to the office was, for specifically counts 4 and 5? >> supervisor kim, i think that was the relationship that they were referring to, that he is the top law enforcement officer, he is responsible for enforcing the laws, and for him to violate the law is misconduct as it relates to his duty of enforcing those laws. even more closely related, he is

responsible for enforcing domestic violence programs, and that certainly is -- on a subject matter basis, the majority found, relates to those duties when he actually committed physical abuse against his spouse. >> supervisor kim: then does it follow that if the sheriff manages a variety of different programs for crimes that you may commit, including for example a dui, that there would therefore be a relationship if there was a misdemeanor of a different crime, because the sheriff runs programs i assume to address rehabilitate or imprison folks that are convicted of those misdemeanors, would that therefore then be the relationship to the office? >> perhaps it is a fool'ser rand for me to attempt to elucidate everything in the minds of the majority but based on my reread

of the transcript and having been at the discussions, i do think that in that situation, a dui could, for the sheriff, be deemed official misconduct according to the jortd's view. >> supervisor kim: do you feel there is enough conversation to delineate what might be considered wrongful behavior that would fall below the standard of decency that would differentiate between a dui and a domestic violence misdemeanor? >> i'm sorry, i'm not sure i'm understanding the question. >> supervisor kim: i guess my question then -- so my question is, was there any sort of discussion that you felt would lead to any kind of delineation amongst the types of misdemeanors that you could -- to or be convicted of, that there was some that fell below the standard of decency, and some that may not? and that may be a difficult question. if you can't answer that, i understand. >> we did actually try very hard to talk about hypotheticals to find out where that line might be.

i think the way we came out with is we did not find any example of unlawful behavior that would likely not fall below the standard for the sheriff. and certainly the sheriff's expert deemed any wrongful conduct would be official misconduct for a sheriff. now we did talk about hypotheticals where, for example, lying to your spouse about what time you might come home for dinner could be wrongful conduct but not likely something that would fall below the standard. >> supervisor kim: thank you. >> president chiu: colleagues, any additional questions? okay. mr. chairman, i want to thank you and your colleagues for your service in recent months and i think we will proceed to the next presentation. >> thank you very much. appreciate your time. >> president chiu: at this time, we will hear from representatives for the mayor. you have up to 20 minutes. >> good afternoon, president chiu, honorable members of the board of supervisors. i am sherry keyser. i am a deputy city attorney and

i've been representing the mayor in these proceedings. i'm here today on behalf of the mayor to ask you to adopt the careful and thoughtful recommendations and findings of the ethics commission, and to sustain the charges of official misconduct against sheriff mirkarimi. as you have heard, and as you may even have followed at the time, the ethics commission was extremely diligent in these proceedings, conducted many hearings, reviewed the testimony from many witnesses, additional documentary evidence, heard live testimony, made credibility determinations, received numerous rounds of briefing and very carefully considered the issues before it. it has already trod all of the ground that's being presented to you. it's considered the arguments that the sheriff is raising today, and it's already rejected

them. you should reject them too, and you should sustain the charges of official misconduct. now, as chairperson hur was referencing a moment ago, the report and recommendation of the ethics commission based its findings and its recommendation mostly on the domestic violence conduct of the sheriff on the incident of new year's eve but also on his subsequent conviction and his sentence, a sentence by the way that is quite serious, a sentence to a day in the jail that he runs is sentence to three years of personal supervision by a probation officer next to the various other folks that he's letting out of jail, and 52 weeks of mandatory domestic violence counseling, again in the company of the very people

whose imprisonment he has supervised if they had recently been released from jail. the ethics commission found that this was not a simple act that took place on december 31, but that it's a course of continuing conduct. it continued into march with pleading guilty. it continued into the following week, with his sentence. and it now continues to this day, with all of the actions that the sheriff must take to complete his sentence as he's under the continuing jurisdiction of the criminal justice system. the ethics commission found that particularly the conduct on december 31st when the sheriff bruceed his wife's arm and violated her personal liberty, that this conduct was serious. they found that he was a public officer at every juncture. they found that he committed this conduct after he had

already been elected to office. and they also found that this misconduct was centrally related to the duties that the sheriff has, the duty to enforce the law, to administer the jails, to lead his deputies by example, to protect victims of domestic violence. the mayor put in really quite a bit of evidence about all the ways in which the subject matter of the sheriff's duties is -- touches on domestic violence, offender rehabilitation, officer discipline, et cetera, things that are affected throughout all of his performance. now, the sheriff argues that since he was elected to office, it should be left to the people to recall him from office, through the recall procedure. but that's really wrong. the san francisco charter, as you know, is the city's constitution. it contains the most fundamental

rules and principles that the people have determined for themselves about how they wish to be governed. and one of the ways that the people would like to be governed is they would like to have a process, and have votes -- this process, whereby officials who may have already -- whom they have already elected can be removed from office if they commit official misconduct after the election. and you're here really to enforce the people's judgment that they are asking their mayor, their ethics commission, the board of supervisors, to take action, to protect them from officials who commit official misconduct. the people have also given you the mayor and the ethics commission a definition of official misconduct. it requires wrongful conduct by a public officer in relation to the duties of his or her office. now, the sheriff can test the ethics commission findings that

his crime and his conviction and his sentence constitute official misconduct because he had not yet taken the oath of office when he attacked his wife. he says there's no relationship between his misconduct and the duties of his office. and he also argues, although usually not in his briefing, that his misconduct just isn't that serious, just wasn't serious enough to warrant removal. i'd like to address each of these three points in turn. first of all, as the superior court already did, and as the ethics commission implicitly did, this board should reject the argument that the sheriff cannot be removed for misconduct prior to taking the oath of office. you know, first of all, as a matter of fact, his misconduct isn't limited to only deeds on december 31. it's an ongoing course of conduct that began on december

31, and continues to this day, and will not end for another two and a half years when he has finally finished his criminal sentence. but, second, even if the only misconduct to take place on december 31, there simply is no oath of office requirement in the charter that says that official misconduct can only occur after an official is sworn in. rather, the charter language requires that official misconduct must be committed by a public officer. the sheriff argues that you can't be a public officer until you're sworn in. the mayor argues that you're a public officer as soon as you're elected. and if you -- you know, the charter doesn't say either that it's a sworn officer or an elected officer. but if you look at all of the policy concerns, and the case law, it becomes clear that it makes no sense