>> not specifically. >> do you have a written policy about what is and what is not official misconduct? >> no, i do not. >> it has been argued that the mayor's decision to attempt to remove an elected official for official misconduct is purely discretionary. you agree with that? >> i believe that it is a duty through the charter. san francisco charter. >> you have the discretion to decide whether you are going to attempt to move someone or not? >> yes. >> is it your position that every public official who is convicted of a criminal offense is guilty of official misconduct? >> i think it is a case by case basis. >> merely being convicted of a crime does not constitute official misconduct? >> i believe in this case, it does. >> that is not my question. my question is, does the fact that an elected official is convicted of a crime, does that constitute official misconduct? >> i believe i have answered that. it is a case by case basis. >> there are some credit card -- criminal convictions he would not seem to be official misconduct? >> possibly. >> like what? >> i do not know because i hav

>> at that time, i had come to a final conclusion that he had conducted himself with official misconduct and he had engaged in wrongful behavior. >> ok. did you ever extend an offer through a third-party that if he would resign, you would find him another job in the city? >> objection, relevance. >> where are you going with this? >> credibility. if he did not think it was unfit to be sure of, why would he be fit for a city job? -- sheriff, why would he be fit for a city job? >> i will continue to object on the basis of relevance. many times there are problems that people try to resolve with compromise. that does not mean they do not believe there is a natural problem. >> -- actual problems. >> i understand your objection. the mayor has put at issue the reasons why. it is pretty close to the line, but i do think given that bases, it could go to bias. it is overruled. >> i do not recall offering mr. mirkarimi any job. >> you did not authorize anyone to convey to sheriff mirkarimi that if he would step down, you would give him another job? >> absolutely not. >> i have no further questions.

his failure to step up and commend her for stepping up is, in your mind, official misconduct? >> i thought he should have defended her. chairperson hur: it is official? >> yes. chairperson hur: as you can tell, we are struggling with the notion of what official misconduct really is, and how it relates to the duties. in probing that, what wrongful conduct could a share of engage -- could a sheriff engage and that is not official misconduct? >> not to be arrested for a crime. not to commit domestic violence. chairperson hur: i am talking about wrongful conduct that does not constitute official misconduct. do you understand my question? >> i am trying to understand it for you. >> commissioner? it may be easier for this expert, given the nature of his expertise, not to try to answer the legal question about what is official misconduct, but maybe to testify about the question he is here to testify about, which is the standard of conduct for law enforcement officer. chairperson hur: it is a good point, and i am going there, thank you. >> thank you. chairperson hur: what wrongful cond

short of committing official misconduct, the sheriff answers only to the voters. are you aware of the provision that provides for the voters to recall the sheriff as well as every other elected official in the city? >> yes, i am. >> there is another way othe sheriff could be removed. that is the democratic way to do it. >> objection, argumentative. >> can i have the question read back? i was thinking about the objection. >> that is the democratic way to do it? >> overruled. >> i do not know if we got your answer. >> could you repeat the question? >> the other way to remove the sheriff would be the democratic process? >> yes. >> one of the other things that you stated in your declaration, you found a lot of fault with sheriff mirkarimi. safe to say that? >> correct. >> yoon noted that sheriff mirkarimi did not take any corrective action and did nothing to disavow improper conduct like witness dissuasion, right? >> yes, sir. >> did you see the text message for his wife asked him to contact the ex-sheriff to do something. and he responded that he could not do that. if

the guilty plea is an admission of criminal guilt but it is not an element of official misconduct and should not be mistaken for the truth and love the a good dog -- of the inquiry. we cannot agree to be limited to what share of mirkarimi is willing to admit to. >> no one is saying you should be. you needed this because the sheriff was suggesting that the dismissal of the other charges was evidently did not occur. he stipulated this in open session in front of the public that is not what he is going to say. why do we still need her? assuming you can get a written stipulation on that. >> we need her to also explained that false imprisonment as a matter of law is not co- extensive with turning a band around from going to the restaurant to going home, that would not satisfy false imprisonment. the parties stated there was that charge. there is a discrepancy between what he is saying and what can be supported by his plea deal. we would like to have that and please understand this in the context that the only state -- we have had access to are the statements in the media. we do not have st

it attempts to define official misconduct. in my opinion, the task of the commission is to decide whether what occurred constitutes official misconduct, not whether it constitutes domestic violence. >> why don't i asked a different question? do you think that the crime of false imprisonment that the sheriff pleaded guilty to is domestic violence? >> i do not think i can answer that question, because it depends on how you will define the term. if you want to define it by the terms and conditions of probation when you are convicted of that crime, and are they some of the terms and convictions you would get if you were convicted of a battery on your spouse or significant other, possibly. but i do not think the term is sufficiently definite for me to give a response to that question. >> if the term is not sufficiently definite for you, wouldn't expert in that field help us figure that out? >> maybe so. but that assumes the foundational question, which is, is that important to your determination? our position is that is not. it is

officials to engage in. chairperson hur: commissioners? commissioner liu: i do think that if the sheriff is taking the position that the misconduct has to relate to something going forward with this official duties, this evidence potentially would be relevant. if i understand you are trying to demonstrate what the relationship or the nexus is between the alleged misconduct and his performance of duties going forward. i thought i understood the shares position to be that the mayor has to establish that connection. if that is the case, i do think this would be relevant, at this witness is supposed to testify about how the alleged misconduct or off-duty behavior could potentially affect someone in the the sheriff's position. i do see the relevance of there. >> i think the problem is this is a very expansive reading of what the duties are of the share of of san francisco. i understand why the mayor wants to expand those duties so that they can bring in a parade of the expensive expert witnesses. the problem is the duties of the sheriff are limited. run the jail and execute lawful court orders. not much else. all this extra aspirational goals, whil

our contention is that official misconduct remains what it has always been in san francisco and at -- as it has been described in case law. >> under a different standard of the city charter though, right? >> well, not exactly. the original language of official misconduct remains and then this extra purposes is grafted onto it in the 1995 amendment. >> this was not in play in the time of the case. >> our position is that the extra parts should not be considered. you might not agree with me, but if we are right, and, if off the death flushed the line you might agree with me, but if we are rough -- you might not agree with me, but if we are right. >> so, this portion is excluded. ok. the next item is the testimony of the sheriff. before he comes up, can you give us a time estimate of how long you would examine him. >> in total, if it is hard to say without knowing how to first floors of the exam goes. if i don't think i will finish tonight. if i can say that much. >> ok, will the sheriff please come and sit in the chair closest to the commission. thank you, sir. we will have the court re

it was official misconduct. again, for many of the same reasons that we argued against the admission of mr. henderson's declaration, we do not think that this sheds any light on the issues you have to decide. for that reason, other than the of -- the portions we agree are relevant, para wraps 19 through 25, -- 22, and the specified evidence, we do not think this should come into evidence. >> is it your position that the fact that the sheriff would be on probation during the time he is in office is irrelevant to the question of whether or not the mayor acted properly in saying he could not carry out the duties of sheriff? >> i would have to answer by saying that i take issue with one of the premises of the question. the inquiry is not could he fulfill the duties of sheriff. i do not think that is what the commission needs to decide or should decide. i think the inquiry is was what he did official this conduct. -- misconduct. in politics, people may get elected that do not get along with other members of the city

if you are ripping off the city of enough money, official misconduct is a virtue, not a crime. the public-private partnership is not just immune from accounting for the money. they are immune from the ethics, justice, and democratic values. if people no longer accept the result when their faith in the institutions is broken, the lie cost more than the money. thank you. >> i am peter warfield, executive director of library users association. we have been working for months to save a worthy and wonderful city asset, the bernal heights branch library mural, featuring a range of working women and musicians. scaffolding went up to prepare for a paint out that was supposed to start yesterday. luckily, we have found and alerted the city to a legal issue that we hope will provide at least a temporary stop. here is the merrill as it was a few weeks ago. this is before the scaffolding went up. this is the famous and chilean singer-songwriter. what is that going to be replaced by? no people. no words. on the side is a panel honoring working women. friendship and unity is to be replaced by

it is a narrow fact-finding investigation as to whether conduct that has already occurred is official misconduct. giving testimony about the relationship among various agencies, getting testimony about the duties and whether he can perform them, i do not see the relevance. but it appears there is disagreement among the commissioners about that. if there is, i think we should discuss it. it would greatly affect the scope of the testimony. >> as i read the briefs, i believe the mayor was proposing to introduce this evidence because of the argument being made that to the misconduct, if it occurred, was not in relation, or was not connected, with his duties as sheriff. and what the mayor argues is that there should be some relationship, and cites a number of california casement -- cases of law enforcement personnel who were terminated because of speeding violations and the court talked about the fact that law-enforcement official has a special set of duties that a violation of the law which might not affect a non-law enforcement officer. that is what i understand this testimony is in for comment to

>> ok, the portion of the charter that you just cited is the first prong of the official misconduct. we consider this to be more relevant to the second prong of the misconduct. a person who is elected to an office takes actions that disable them from affectively performing the duties of that office, that is something that falls below the right kind that that is required. >> let's talk about the second prong. i have a disagreement with both parties as to what this is supposed to mean. this refers to the standard of decency, good faith, and right actions required of all public officers, including any violation of a specific conflict of interest. i did not see this as one standard for the sheriff, one standard for the mayor, one standard for the board of supervisors. this is one standard for all public officials. to me, it makes mr. henderson's testimony all the more irrelevant. >> the argument from us would be that each public official is under a duty to perform the duties of office to the best of their ability. they are expected to do that. you have to look at their ability to perform

there are allegations of official misconduct even before taking office. sheriff mirkarimi has taken responsibility for his actions in what should of been a private disagreement between his husband's -- between a husband and a wife, which happens in most marriages. he will be a better husband. it would have been somewhat of a challenge for me to be here if mrs. mirkarimi had received a black eye or a broken nose or ribs or a busted up lip or a tooth busted up or had not forgiven her husband or stood up for him, but for a bruise on her arm, words said in anchor, up to be charged of official misconduct and hundreds of thousands of taxpayer dollars wasted, in a democracy where majority votes world, as strongly as bad as being stopped. the honorable board of supervisors and our honorable mayor, who encouraged him to change his position and run for mayor, i appeal to you for the good and future of our great city that to exercise mercy, forgiveness, a unit, and support for our democratically an elected sheriff madrassa will remain -- sheriff ross mirkarimi, so h

. >> i'm sorry if i missed it but how does that relate to the mayor's official misconduct? >> as if the sheriff did nothing to stop it and the sheriff funded miss lopez's attorney. >> please, we cannot have comments from the audience. >> to me, that is not relevant. i will sustain the objections and welcome the views of my fellow commissioners. ok, hearing no objection. mr. murton. first objection is to paragraph 6 through 9. i had a hard time seeing the relevance here. i would sustain the objection. i welcome the views of my fellow commissioners. if there are any where you would like to be heard, we will certainly give you that opportunity. >> thank you. commissioners, i want to say this, i recognize things discussed in these paragraphs. they are not flattering but we take to the fact as they come. from our standpoint, information like this about the past relationship between -- between miss lopez and the sheriff are relevant to our theory that domestic violence would occur, and our view of the fact domestic violence would occur. our it is extreme thrirs, the couple senten

that has nothing to do with official misconduct.e only one ethical choice, vote to reinstate the share sheriff. do your job mel, please. thank you. [applause] >> good evening. i want to thank you for giving me the opportunity to speak tonight. i am here because i believe the ethics commission has a duty to the voters of this city to uphold the will of the people who democratically elected ross mirkarimi to the office of sheriff. the country is watching what you do. undoing an election is an extremely serious matter. the suspension of our sheriff did not happen because he engaged in official misconduct. he was suspended due to political pressure. the same pressure that has victimized his wife. it has had a dramatic impact on his young son. i ask the commission to recommend that the charge be dropped and give us back our share of. -- sheriff. i also want to submit a resolution that was passed in support of ross mercury. -- ross mirkarimi. we oppose the removal of ross mirkarimi. we request the mayor reinstate mirkarimi in the interest

consequences of those acts are relevant to whether or not the actions were official misconduct. given the diversion of views by the commission previously, i think it would be helpful to admit the first sentence of paragraph 26, and paragraphs 27 -- i am sorry. i would admit, starting with the second sentence of paragraph 26 and the remainder of para rep 26 and 27. my proposal is that we sustain the objection to one through 18, and exhibits citing therein, the first sentence of part of 26, and her group 28. -- and paragraph 28. i welcome the views of my fellow commissioners. ms. kaiser, please take a seat. we have given you an opportunity to speak. if any commissioner wishes to ask you a question, we will ask you. any questions for the parties from the commissioners, or comments? commissioner studley: i have a comment about why this seems challenging to me, and it relates to the last part of the definition of official misconduct, which we have not yet parsed, and which i expect will be a challenging interpretation of what the voters intended. it is conduct that falls below the st

think this case should have been prepared for presentation prior to filing a written charges of official misconduct. i actually did some historical research to date to find out that in the mazzola case, it was prepared prior to mayor moscone bringing those charges. that is apparently what should have been done, but i do not think they need to countenance that preparation. we have already got a significant burden in front of us to prepare for the 19th. we do not need to complicate that i have a discovery, in our case. chair hur: mr. keith? >> well, i think this goes back to an issue we raised at the last hearing, which is the duty of a representative to cooperate, and these materials would have normally been provided to us. they would have been given to us by the employee, and if the employee did not want to cooperate, they would resign. this is typically the way these things go, and this one has not gone that way. we have been going to the court. from our standpoint, most significantly are the telephone records described in the criminal action. our hearing is not until june 5, so we are on a very t

definition in the law dictionary that the boaters ended up adopting as part of the definition of official misconduct. any limitation, they're holding, the discussion in the context of that case actually has no application here. the reasons why is in the mazzola case, the issue was the relationship between the alleged misconduct and the officer's position as an airport commissioner. what happened in that case was the airport commissioner who was also a union official and had been a union official when he was appointed and at some point, his union along with many other unions went out on strike and he recommended the strike that did nothing in his official capacity as airport commissioner. the court held -- held that there was no relationship between his actions and -- as a union official and his actions as an airport commissioner that would be sufficient to merit his removal. when it was emphasizing in office, it was emphasizing the relationship or the connection and the mayor agrees there must be a relationship. that case has absolutely nothing to do with the timing or the misconduct. how does this

the city attorney is trying to prove the incident is official misconduct. what's happening next, ross mirkarimi will testify, followed by san francisco mayor ed lee. recording live in san francisco, christie smith. >> testimony of a different kind in the south bay is expected this morning. the man who attack add retired priest could take the stand. bob redell is live in san jose with what is next in this high profile trial. good morning, bob. >> good morning it later today the defendant will lynch is expected to take the stand but he will be limited on what he can tell the jury. in other words, it's not clear what if anything the judge will allow him to say about the alleged sexual abuse. he and his brother suffered at the hands of father jerry lindner when they were boys. lynch is accused of beating up the priest in los gatos, allegedly in retaliation to the molestation. a worker at the center testified she saw lynch punch lindner twice and heard lynch yell that lindner ruined the lives of him and his brother. the trial resumes sometime this morning here a

chairperson hur: therefore says based on his conduct that he conducted official misconduct and is not fit to hold office. in paragraph 6, he decided that any actions necessary -- he seems to have put at issue his reasoning for why he issued the charges. >> i do not think the mayor submitting a declaration about the reasons that motivated him to file the charges put at issue his motivation on the issue of what happened with regard to official misconduct. what i think it does is says this is the judgment of the mayor about why this conduct is serious. i think there is a difference what is motivating the mayor verses' his judgment that conduct is serious. we're trying to provide the commission what he wanted and this is what the mayor had to get. it is putting aside for the moment what the ultimate relevance issues are. commissioner renne: have i missed something? are we on paragraph 19 of the declaration? if somebody asked a question of the mayor or the sheriff, one or the other, did the mayor tell you why he was suspending new? -- you? there would be no objection, the answer would be y

have suffered criminal convictions during his tenure and that was not -- does not seem to be official misconduct. that is one point i do not think the mayor intends to introduce. the retired sheriff may be able to offer other pieces of fact information that would help the commission in reaching its decision. we have not obtained one but we think we can obtain one from him. >> you indicate in your witness list that you expect him to testify about communications which i could see coming in. would you rather have michael hennessey and the acting sheriff if their testimony would be overlapping and michael hennessey will speak to statements made by mr. mirkarimi? >> i think given the burden of preparing a declaration, i feel is more appropriate to place them on someone who was working so we would use the key heresy -- hennessey. >> if we could keep the silence. it is a long night. the views on vicki hennessey. is there an objection? do we need your testimony? >> did you say it would or would not overlap with michael hennessey's testimony? >> my concern is could we get a declaration from a retired she