After months of discussion and faulty charges, the case against Ross Mirkarimi comes down to the initial act — and how broadly to define 'official misconduct'
But the commission pointedly refused to enter that debate, with Commissioner Jamienne Studley saying, "I don't think determining constitutionality is what I signed on for as a commissioner."
Chair Benedict Hur, the sole dissenter in recommending a finding of official misconduct, expressed far more concern about the precedent they were setting than with the fate of Mirkarimi, whose actions he strongly condemned as "clearly wrongful and unlawful."
"There has to be a direct relationship of the behavior to the office held," Hur said. "If we don't find a nexus, we are opening this provision up to abuse down the road."
Commissioner Paul Renne led the charge in interpreting misconduct in the broadest possible way, arguing it didn't even have to be related to his official duties. "There's nothing in that clause that says the misconduct has to relate to the office," Renne said.
But Hur called that a "dangerous precedent," saying he has "grave concerns" about how such a broad interpretation could be applied in the future. "I have a lot of concerns about where you draw the line if you don't relate it to official duties," he said.
For example, could members of the Board of Supervisors be removed after getting arrested at demonstrations as has happened many times before in connections with labor and other disputes or even for using colorful language with constituents or colleagues that might violate a future mayor's "standard of decency?"
Mirkarimi attorney Shepherd Kopp said there's a good reason why recall is the preferred means of removing an elected officials accused of wrongdoing, calling the charter "an imperfect document" that can't cover all circumstances indeed, it doesn't allow for the removal of mayors, even those who commit serious crimes noting that "this is a rarely brought proceeding and it can have the effect of contravening the will of the electorate."
"These proceedings," Kopp said, "are far too susceptible to the vagaries of politics."
Lee's decision to overcharge Mirkarimi could be a costly one. The City Attorney's Office won't release expenses associated with ongoing legal actions like this one, but most indications are that it will run into the millions of dollars, perhaps many millions depending on how Mirkarimi fares in the courts if he is removed and challenges the city's actions.
According to the City Attorney's Office, the official misconduct proceedings against former Sup. Ed Jew in 2007 cost the city $381,505 in legal fees, but that was a relatively short and simple proceeding, with just one Ethics Commission hearing and couple of state court appearances before the case was settled.
By contrast, the case against Mirkarimi has already entailed five months of detailed exchanges between the two sides' attorneys, covering a wide array of legal issues, and months-long investigations of matters only tangentially related to the core charge. The city has paid out money for expert witness. Mayor Lee cast a wide net to catch the fish that he had already hooked before setting out to sea.
Even if the Jew case had played out to completion, it would likely have cost just a fraction of what Mirkarimi's will, for a simple reason: Mayor Lee acted quickly and brought a broad array of charges before investigating them.