and we do think mizola remains good lot of these critical issues. one, you have to be engaged in the performance of your duties to be engaged in official misconduct, and that's misconduct, whatever it is, has to occur while you were in office, not in the time when europe and elected but not sworn in. >> can i interrupt you on the while in office? >> in mizola, was a mean performing the duties of office 9ç8or because he was official position yet? my understanding is he was a commissioner at the time. i do not think they're talking about the situation where you are pre-swearing in. they're talking about the situation where you are not performing the duties of your office. >> i agree with you. that is correct. >> this does not address the timing issue? to go it does in surveying the various legal authorities that the court of appeals decision surveyed. as well as some other state cases. they are cited there. it gathered together all of the legal authorities, all of which deal with public officials who were in office at the time there is some misconduct

you have to look at the current charter definition of official misconduct that was enacted after mizolaand draws from opinion to say that the drafters, whoever they may have been, were well aware of what mizola had to say about the issue and has to be interpreted in a way that is consistent with this decision. there is one other point i would like to make. i am certainly willing to entertain -- >> can i stop you while we're on this point. is there any justification for why this should not apply to an elected official who was not yet sworn in? to say the charter is not perfect and the people did not vote in a provision that was perfect is not very compelling to me. i want to know why we should take a restrictive view of public official that would absolves him or immunize him from being suspended from official misconduct prior to his swearing in. >> there is a very simple answer, the primacy of the will of the electorate. there is a provision in place, called the recall that can be used to remove a public official that the voters want to get rid of. that is a democratic way to do it. admi

that share of mirkarimi by his :#p those consequences. >> let me ask you about mizola, because i findoth of you off on what it means. i am looking at page 149 of the opinion. the court goes into the assertion that official misconduct in two -- under attack is virtually the same as in office. it then refers to the black law dictionary and amamjor -- in the black law dictionary it does have a language by a public officer in relation to his office. the court, using that, finds that means it would have to be !)gmisconduct that occurs, but o the direct relationship of the alleged wrongdoing to the office held. it also says the violation or omission of the committed while in office. i understand you are now saying this bill talk with unlawful conduct, and we're dealing with wrongful conduct. i appreciate that distinction, but the charter uses that in relationship to the duties of office that we use in the charter. why should we not follow how mizola interpreted in relation to the office and apply it to the charters? it is the same language in the same words. it requires a much more direct r

our contention has always been the primary authority is the rizol mizola case.ow, we recognize that at least one commissioner has expressed the view that maybe it does not apply because the chartered definition changed since this case was decided. but, the current definition of official misconduct under the charter draws almost entirely from the language used in the opinion. the two points that are most critical about that opinion from our perspective our number one that the official misconduct has to occur while the official is in office. much of what the mayor has alleged occurred before the sheriff was sworn in. they have presented you with a parade of horribles about why this cannot be the correct interpretation. they have said if an elected official is elected and then at roms bankbs banks, we cannot hat situation. that cannot be the definition of the charter. there has to be a way to address pre-swearing in testimony. sorry, not pre-swearing in testimony. pre-appearing in contact. the charter is an imperfect document. i would like to make the points that t