criticize him if he did something, but you couldn't say, hey, we're going to remove you for official misconduct 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 t

but there must, i think be a line between official misconduct and personal misconduct and i could notfind 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

board recommend or do something other than remove him from office if there is a finding of official misconduct. i don't see the benefit of providing any other recommendation to the board. commissioner liu? >> thank you. i do understand commissioner hayon's concern for taking a position on the consequences and what effect the misconduct charges should have. however, i think that i am more inclined to agree with chair hur on this particular issue, because -- and the reason is because we were so careful in analyzing what the charter says and what the standards are and we parsed the language. we were trying to be true to what each of felt what the charter allowed us to do and not do. so i would not feel comfortable now straying from that principle and doing something that i really don't see that the charter allows us to do. so for that reason, i wouldn't want to take a recommendation on it, simply because that is not what i think we're authorized to do under the charter. and if we have been true to what we each believe the charter allows or doesn't allow and i understand commissioner renne's point

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

automatically is official misconduct for a sheriff. it is probably the case though that every misdemeanor conviction relates to the duties of the sheriff as a law enforcement officer. >> supervisor kim: so then you're adding to the test then the second portion of your test would be a relationship test, plus the ethics commission would have to determine that it falls below the standard of decency for that office. >in relationship to the sheriff's office, but if we were to assume that it is standards in relationship to your specific office, for the sheriff, it would be the relationship to his office, plus the -- what common sense would judge as falling before the standard of decency? this is where i get stuck is when does it fall below the standard of decency? a dui could be -- as a misdemeanor. you didn't hurt anyone per se, but you could have. you could have killed someone on the road, right? so i guess that's where i would like more clarity. when does it fall below the standard of decency for the sheriff, if we were to argue that ther

the fact doesn't make it too vague to apply, it makes it a more nimble -- to find official misconduct where it exists and exempt misconduct is purely private and not official when the duties are not implicated. >> president chiu: you're suggesting we should think about fact specific situations where a public official has charter section 15.105(e) refers to conduct that falls below the standards of decency impliedly required of all public officers. how do you read that statement which seems to suggest there should be some sort of standard that is a little difficult i think for public officers of the public to completely understand, but you do suggest that even though the language refers to all public officers that, again, you believe strongly that there's a fact specific relevance to whatever the conduct is and whoever the public officer is? >> i do -- the mayor does take that position. and it's a position that is really informed by the extensive body of due process jurisprudence in the state, under which -- and again in the employee misconduct cases, it's the case that you can't just

it's whether or not it's official misconduct.a few issuesú m=ñ i struggled with. with the dialogue with the city@j'Ñ attorney's office earlier you know, i did reject that notion i did have serious issues with the notion of mr. mirkarimi not being sworn in but being the sheriff-elect. but at thhí )hju$e day as president chiu did mention earlier i do think there are duties that attachk"t prior to being sworn in. it does seem absurd there weredo"0k some comments you know, you take it to extremes, what happens about, you know, =4Ñ robbing folks on the way to your inauguration. that does not make sense to and perhaps you know, this won't nowñ 9 be adjudicated in the courts after what seems to be three votes at aq.$ sustain the charges. but as i've thought about-]9s it, those duties do attach when someone has that expectation that they're going to be sworn into office. i'm okay with that issue but i do caution of taking this to extremes. and i amd precedent-setting natureúonst of what we're talking about today. and i do thinking even g

in terms of determining official misconduct, given that elected officials have to stand for electiongq recalle? >> you know, there is no legislative history, there's no ballot history,v2l÷ that shedst on that question, or frankly any other question in regard+b%q÷ ts provision. what we have, and what we're case laws that existed at the time, the maz olm0ji>hp)j decis, his which was the only case that ever dealt with official explanation of what this was intended to mean. and that means, for us, that wew need to focus, and the mayor has focus, really, on the language of the charter itself as the best2 and there is no distinction whatsoever between the appointed and the elected official"jñ that this section covers in the charter. and that suggests that the them differently. >> thank you. >> president chiu: thank you.lq4 colleagues, any additional questions? at this time, why don't we now . >> good afternoon, mr. president, members of the board of supervisors. my name is davidfbtl] waggoner,i along with co-counsel shepherd kopp aregd6t representing sherif ross mirkarimi this afternoon.

expedience -- is very tempting that is precisely the danger of removing 4ao an elected official for official misconductor actions taken before tj")h person are officially in office. it is a dangerous precedent to set and aqx 4u slippery slope to be opening up this process as a political tool.k however, intolerable and unacceptable we find actions of our former colleague on the day é december 31 or subsequent actions following that our duty is to uphold& process, public faith in city government and safeguard06jo the integrity of democratic processes and not/cbuu)áu or contort the law that we think best serveswj!or everyone. i will not be voting today to sustain the/ >> president chiu: supervisor:k wiener. >> supervisor wiener: thank you, ú?7t% %9q. >> president chiu: order please. : supervisor wiener. >> supervisor wiener: thank you. this whole process i know has been incredibly%0b= hard for other than --c4í,÷ everyone involved especially being asked to judge a former colleague.4 and i am going to speculate that i don't think any of the 11 of us are goingwxas' to walk out of this room tonight feeling gr

when, atgta commitojaqs official misconduct.nd question is how do we define that&a+by official misconduct. and the third is whether the charges fit that definition,ueñ;y and finally, whether the mayor's office counsel proved bywrú preponderance of evidence that those charges happened. somoyv i'll speak quickly on the timing issue and i think most of us are in agreement here. 2 found to perform official misconduct asw.t0Ñ sheriff-elect. and i come to this conclusion because even under the most narrow definition of what rmy=ñjjr( to office means, i believe that you can commit official misconductgç#w÷ because you can purport to be on the job or purport to use the power of your officex';[ under the color of the law. i think about the last time this came before us -- notpwon÷ before the board of supervisors but the last time it occurred in the city andi@4y that was with ajew. if supervisor+>çda elect had told the store he would help them through a planning processbú$g if they took a bribe before he swore an oath of office i(r think h

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

how can it be official misconduct when the man was not officially conducted into the city services. rn in, period. so therefore, you cannot stay it's officialut)a misconduct. violence. i was a direct victim of abuse and violence husband. i was holding my infant baby in my arms, and he shoved me. only because i woke him up for dinner. that's violence. how can you sit here and say a tug of the arm is violence. it's ridiculous. the man didn't beat her up. he didn't physically harm her,)y cutting her up, or have effectively bleeding, or whatever. so, you know, let's be reasonable and use some common sense here. grabbing an arm is not violence. how -- the mayor, willie brown, he was in office, officially at the time when he was an adulterer, a father of an illegitimate child, not a slap on the wrist. gavin newsom, drunk, violent, on drugs, and an adulterer with the chief of staff's wife and not a slap on the wrist. upon so how do you define this as justice. come on. this is not fair. the punishment does not fit the crime. you have to do this properly, and let this man be reinstated. it i

vague because we have all these cases and this developed body of law about what it is, what official misconductd 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

did not say that the board should sustain the charges of official misconduct against sheriff ross 6ç0on the seriousness of the incident that occurred december 31st, 2011, and the subsequent conviction as reflected in counts 4 and 5 of the amended charges of oehl misconduct. that is the part you are complaining about, right? >> yes, and specifically the first five words . >> well, on page 16 11 of the transcript, there is a motion that says, "is there a motion to sustain the charges as to the conduct that occurred on incidence 31st, 2011 and subsequent conviction as reflected if counts 4 and 5 of the amendment charges of official misconduct." so i think it's pretty clear that the order reflects the motion that was made, seconded and approved by the commission. okay. your concern about the facts that are not included here. meaning the fact that we found there wasn't sufficient evidence on the guns or other conduct. i am certainly not suggesting that we didn't make those findings and i stand by them and i think we were absolutely right to find that the mayor did not sustain his burden on

at least if the official has limited experience playing the six degrees of kevin bacon does the mayor say any and all misconductation, even purely personal conduct totally unrelated to the performance of any of the official's actual duties? if so are ethics commissioners studley and han saying anything different from what commissioner rene said. is their new relationship requirements so diluted that it amounts to no requirements at all, exactly what mr. rene suggested. and if that is correct, does it not follow that all four commissioners are interpreting san francisco's official misconduct statute in a way that leaves it completely unconstitutionally vague. by making up rules of misconduct proceedings against ross as they went along, the ethics commission appears to have vield the city charter themselves by chersing an authority not;%.f-3 granted by the charter. they do not have my authority to take away my vote. reinstate -state wúw wj4(p&c"p% >> president chiu: thank you very much. next speaker. >> thank you. my name is author murillo. good afternoon, mr. president and honorable members of the board of super

two bodies both of them ethical over set boundaries which both concluded she had engaged in official misconduct and when that was brought to the mayors attention he chose to do nothing in stark contrast to what he did to official [indiscernible] and we're still wondering. you can't charge the sheriff with official misconduct over false charges and then let a library commission president off the hook for proven charges. speaker: thank you very much. i do have graphic presentation but there are only two reel points i want to make. first of all, with respect to official misconduct in general, there have been questions about the appending charges against the elected sheriff about whether it was related to his office and whether he acted in his official capacity with respect to mrs. go mess there is no question this took place at an official public meeting and that she was conducting the office that she was appointed to while this was happening but more importantly the mayor removed while charges were pending yet he did nothing, not even make a response after miss go mess was found guilty. you may r

we decide this casee24ne based on the law that governance official misconduct, including.it, and based on theam1sidence presented. and if you look at the facts and aç the law, it is clear that there are two possiblel+lcm interpretations of what official misconduct and while i understand and respect the position that has been articulatedíuááájuárjy and i want to thank president hur because it's not easy to be in thew but i think