Lee's charges against Mirkarimi leave questions unaddressed

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Mayor Ed Lee ignored questions during his brief announcement yesterday that he was removing Ross Mirkarimi from office
Luke Thomas/Fog City Journal

UPDATED BELOW WITH "RESPONSE" FROM LEE'S OFFICE: Sheriff Ross Mirkarimi was formally suspended today and served with “Written Charges of Official Misconduct” that for the first time outline why Mayor Ed Lee believes Mirkarimi should be removed from office, although they leave unaddressed many questions that Lee has been so far been avoiding answering.

The eight-page legal document prepared for Lee by the City Attorney's Office briefly lays out the process (a hearing before the Ethics Commission, its recommendation, then action by the Board of Supervisors within 30 days thereafter) and the definition of official misconduct, focusing on this phrase: “conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers.”

That vague language is fairly new and has never been considered or interpreted by any court, and the city acknowledges there are at least “two reasonable interpretations” of its meaning: “This phrase could be either (a) an example of misconduct that, by definition, relates to the duties of all public officers, or (b) an independent, alternative category of official misconduct that does not require a connection to an officer's official.”

Lee's attorneys argue that they don't think a direct connection to an official's duties is required, but they acknowledge that's how it could be interpreted, so they try to make that connection as well, often by relying on evidence and testimony that hasn't been vetted by the courts or by making connections likely to be challenged by Mirkarimi's new attorney, David Waggoner.

The document recounts the “Wrongful Conduct by Sheriff Mirkarimi,” starting with his “acts of verbal and physical abuse against his wife, Eliana Lopez” on New Year's Eve, continuing through the criminal charges filed against him on Jan. 13 with a focus on allegations that he dissuaded witnesses and “encouraged them to destroy evidence” and with his March 19 sentencing for false imprisonment, concluding the section with a reference to the newspaper quote from Don Wilson, president of the San Francisco Deputy Sheriff's Association, that the plea had hurt morale in the department.

The DSA actively opposed Mirkarimi's election, just as it did his predecessor and mentor, Michael Hennessey, in every contested election in the legendary progressive sheriff's 32-year career, so it seems a little strange to rely on such a self-serving assessment. But that isn't the only point that raises questions and potential challenges, particularly as they try to argue that Mirkarimi's actions related to his official duties.

Part of Mirkarimi's sentence included one day in jail, for which the judge said his booking qualified, meaning that he never actually was inside a cell. But Lee's attorneys argue without explanation that, “Sheriff Mirkarimi's one-day sentence to county jail undermines his ability to receive inmates and to supervise the County jails.” It certainly didn't seem to for former Sheriff Dick Hongisto, who was jailed for several days after being held in contempt of court for refusing to carry out the International Hotel evictions, but who never faced sanctions from the mayor.

The first and seemingly strongest connection it makes between his actions and official duties listed was, “Sheriff Mirkarimi misused his office, and the status and authority it carries, for personal advantage when he stated to Ms. Lopez that he could win custody of their child because he was very powerful,” a charge taken from the videotaped testimony that Lopez gave to his neighbor Ivory Madison.

Lopez's attorneys have noted that she made the video to paint Mirkarimi as abusive in case there was a custody battle, as she says on tape, and that she was seeking confidential legal help from Madison and never intended for it to be released. But her and Mirkarimi's attempts to retrieve it are labeled in the charges as efforts to “encourage the destruction of evidence regarding criminal activity,” which they argue also relates to his duties as a law enforcement officer. This issue is likely to be a matter of serious debate during the Ethics Commission hearing.

Finally, the document argues that because the Sheriff's Department can enforce protective orders in domestic violence cases and funds programs for domestic violence perpetrators – and because it sometimes interacts with the Adult Probation Department, given Mirkarimi's three-year probation – that the charges directly relate to his official duties.

Clearly, these are complicated issues that raise a variety of questions, which is why it was disconcerting yesterday when Lee announced the charges to a room packed with journalists and refused to take any of our questions. City Attorney Dennis Herrera didn't speak at all, simply standing behind Lee looking stone-faced and perhaps a bit uncomfortable.

Earlier today, I sent Lee and his Office of Communications a list of questions that I think he has a public obligation to address given the drastic action that he's just taken against an elected official. I haven't received a reply yet, but I'm including my comments here for you to consider as well:

 

I was disappointed that Mayor Lee took no questions during yesterday's press conference, because I had several that I'm hoping you can address for a long story we're writing on the Mirkarimi affair for our next issue. I'm hoping to get answers by the end of the workday on Friday.
- Will Mayor Lee release the memo he received from the City Attorney's Office on Ross Mirkarimi and whether his crime rises to the level of official misconduct? [Note to reader: That advice memo is different than the charges I discuss above.] It is solely under Lee's authority to waive attorney-client privilege and release the memo, as even Willie Brown urged him to do in his Chronicle column on Sunday. And if he won't release it, can he explain why?
- Lee told reporters last week that he would explain why Mirkarimi's action rise to the level of official misconduct if concluded they did, but Lee didn't offer that explanation yesterday. Why does Lee believe actions that Mirkarimi took before assuming office, which were unconnected to his official duties, warrant his removal from office? Is Lee basing his decision primarily on the crime Mirkarimi committed on New Year's Eve or his actions and statements since then? What specific actions or statements by Mirkarimi does the mayor believe rise to official misconduct?
- Why didn't Lee consult with Eliana Lopez or her attorney before making this decision? None of the purported evidence in this case has been scrutinized by the courts as to its veracity or completeness (that would have happened at the trial). The only two people who know for sure what happened that night are Ross and Eliana, so why hasn't Lee asked either of them what happened?
- Why did Lee set a 24-hour deadline for Mirkarimi to resign or be removed? Did Lee offer Mirkarimi anything in exchange for his resignation, such as another city job?
- Who did the mayor consult with about whether Mirkarimi should be removed before making this decision? Were any members of the DSA or SFPOA consulted? How about Rose Pak or other members of the business community? How about Michael Hennessey? Did he seek input and advice from John St. Croix or anyone from the Ethics Commission?
- It's my understanding that the mayor wasn't required to remove Mirkarimi from office without pay pending his official misconduct hearings, that Mirkarimi could have either remained in the job or been suspended with pay. Why did Lee feel a need to place this additional financial pressure on Mirkarimi to abandon the office that voters elected him to? Is he concerned about the impact of his decision on Eliana Lopez and Theo?
- Mayor Lee has prided himself on being someone focused on "getting things done" without creating unnecessary political distractions. So why does he want to drag out this distracting political drama for another few months? Why does he believe that it's a good use of the city's time and resources to be a forum for airing details of a sordid conflict that has proven to be a divisive issue? Is he worried about exposing the city to liability in a civil lawsuit if his charges against Mirkarimi are later found to be without merit?
- Does Lee intend for Vicki Hennessy to be the permanent replacement for Mirkarimi if the official misconduct charges are upheld? Will he take into account the will of the voters in electing Mirkarimi, someone who had pledged to uphold and continue the legacy of progressive leadership of the Sheriff's Department as embodied by the long career of Michael Hennessey? Given that the DSA consistently opposed Hennessey at election time, and that in this election voters rejected the DSA's choices, why is Lee substituting his own judgment and political preferences for those of San Francisco's voters? Why did Lee feel a need to take preemptive action against Mirkarimi rather than simply allowing voters to launch a recall campaign, which is the typical remedy for removing politicians who have gone through some kind of public scandal?

UPDATE 3/26: Mayoral Press Secretary Christine Falvey told the Guardian that we would have answers to these questions by Friday, but then sent the following message as a response late Friday afternoon: "Steve, After looking at your questions, it seems Mayor Lee addressed much of this in his comments on Tuesday. After Sheriff Mirkarimi pleaded guilty to a crime of false imprisonment, Mayor Lee made a thorough review of the facts, reviewed his duties under the Charter and gave the Sheriff an opportunity to resign. When that did not happen, he moved to suspend the Sheriff. For any information regarding what is in the charges, I will refer you to the City Attorney's office and their website that has all of the public documents posted."

For the record, Lee has not addressed these questions nor made any public statements on whether he will release the advice memo (as even Willie Brown publicly urged him to do) or explained why he's keeping that document secret. And we haven't even had the opportunity to ask the mayor these questions directly because he hasn't held any public events since announcing his decision to remove Mirkarimi.