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'
When Mayor Ed Lee suspended Sheriff Ross Mirkarimi in March, he publicly took the position that it was an act of official misconduct when Mirkarimi grabbed his wife's arm during a Dec. 31 argument, subsequently pleaded guilty to false imprisonment, and was placed on probation for three years.
Lee and his allies said that under those conditions, Mirkarimi could no longer effectively function as the city's top elected law enforcement officer and that his actions clearly violated the City Charter's ban on "conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers."
The City Attorney's Office, through deputies Peter Keith and Sherri Kaiser, has maintained that position throughout the investigation and Ethics Commission proceedings over the last five months. On August 16, on a 4-1 vote, the commission agreed and recommend the Board of Supervisors find its former colleague guilty of official misconduct, which would almost certainly result in his removal from office.
But that simple set of facts and interpretations belies the ugly spectacle that Lee and the City Attorney's Office actually decided to create at great cost to taxpayers, Mirkarimi's reputation, and the public's faith in the proceedings over the last five months.
Instead of sticking by their initial position, Lee and his attorneys decided to pile on a long list of other official misconduct charges: dissuading witnesses to his crime, impeding a police investigation, abusing his authority in several ways, engaging in a pattern of abuse of women, refusing to cooperate with a city investigation, lying to officers in a scheme to keep a gun, and other charges.
Almost all of those accusations were included in the original written charges that Lee filed on March 21 before the city had actually begun its investigation to learn whether there was any evidence to support them. Keith and Kaiser continued to make all those accusations right up until the end.
When the Ethics Commission finally deliberated on August 16, going through each of the main factual allegations against Mirkarimi, one by one, it unanimously agreed that there wasn't enough evidence to support any of those other charges, even using the "preponderance of evidence" standard that is lower than the "beyond reasonable doubt" standard used in criminal cases.
So in the end, the case against Mirkarimi ended at the same place where it began: with the question of whether pleading guilty to a misdemeanor act of domestic violence warrants the removal of an elected official. But the implications and repercussions of what has transpired over these last five months could be felt for many years, in ways that it's impossible to predict today.
WHAT IS OFFICIAL MISCONDUCT?
With very few legal precedents to guide them, the commissioners spent most of the nine-hour hearing on Aug. 16 wrestling with how to interpret the city's untested new official misconduct language, how directly the wrongful behavior must relate to the office, and whether broadly interpreting those two issues gives too much power to the mayor.
Underlying that discussion is the question of whether the statute and the city's interpretation of it will eventually be struck down as unconstitutionally vague by the courts, which Mirkarimi will likely turn to if the board removes him from office.
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