Yet the phone records indicate that neither Lopez nor Haynes tried to reach Mirkarimi until after that conversation, despite the city's claims that Mirkarimi "or his agents" used his power to dissuade witnesses, most notably Lopez and Madison. The first attempt to reach Mirkarimi was at 3:46pm when Haynes called him twice but didn't connect. Lopez then sent Mirkarimi a text message at 3:53pm asking "Where are you and where is the car," but she got not reply. She texted him again at 4:18pm to say "Call me. It's an emergency."
Lopez made one last appeal to Madison in a 4:18pm phone conservation that lasted four minutes and 27 seconds and then she finally reached Mirkarimi by phone at 4:23pm. Mirkarimi and attorney David Waggoner say this is the first time that he became aware that Lopez had talked to neighbors and that the police had been called. Their conversation lasted a little more than five minutes.
Mirkarimi called Haynes at 5:12pm and they spoke for seven minutes. At 5:51pm, an increasingly panicked Lopez sent a text to Mirkarimi saying, "You have to call [Sheriff Michael] Hennessey and stop this before something happen. Ivory is giving the investigators everything. Use your power." To which Mirkarimi responded 10 minutes later, "I cannot. And neither can he. You have to reject Madison's actions. We both do. I cannot involve new people."
On June 1, the city released an amended list of charges against Mirkarimi that was intended to be a more specific list of accusations, as Waggoner requested during the May 29 Ethics Commission hearing. In it, the city asserts that the charter language essentially gives the city two avenues by which to remove officials, defining distinct "wrongful behavior" and "required conduct" clauses. Violation of either, they contend, is enough to remove an official.
"Official misconduct means any wrongful behavior by a public officer in relation to the duties of his or her office, willful in its character, including any failure, refusal or neglect of an officer to perform any duty enjoined on him or her by law...," begins the charter language. This "wrongful behavior" section has long been in the charter, referring to specific actions by public officials to neglect their duties.
The second "required conduct" clause of this sentence — which was created in 1996, never vetted by the courts, and which Mirkarimi's attorneys say is unconstitutionally vague — continues, "...or conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers and including any violation of a specific conflict of interest or governmental ethics law."
In trying to indict Mirkarimi for actions before he was sworn in as sheriff, the city attempts to argue that his official duties really began with his election, claiming that in this interim period he "had the duty and the power in his official capacity as Sheriff-Elect to work with the Sheriff's Department and its officials to prepare himself to assume the full duties of Sheriff." And if that's not enough, the city argues that he was chair of the Board of Supervisors Public Safety Committee during that same Nov. 8-Jan. 8 time period, further subjecting his actions to official misconduct scrutiny.
The "wrongful actions" charges against Mirkarimi were listed in the document as domestic violence, abuse of office, impeding a police investigation, and "crime, conviction, and sentence," while the "breach of required conduct" charges were listed simply as his sheriff and supervisorial roles.