Mirkarimi files court petition challenging his suspension

Mayor Ed Lee abused his discretion in suspending Ross Mirkarimi without pay, a new legal brief contends.
Luke Thomas/Fog City Journal

Suspended Sheriff Ross Mirkarimi and his new attorney, David Waggoner, today turned to the courts for help, alleging in a petition that Mayor Ed Lee abused his discretion in suspending Mirkarimi without pay, deprived him of due process rights, and relied on untested language in the City Charter that they say is unconstitutionally vague.

They are asking the court to reinstatement Mirkarimi pending official misconduct hearings that would take months, or to at least allow his family to continue to receive his $199,000 salary. “It makes it more difficult for the sheriff to fight these charges when he's suspended without pay or due process,” Waggoner told us, adding that he expects a hearing to be scheduled in two to three weeks.

Mayor Lee brought official misconduct charges against Mirkarimi a week ago and since then has refused to answer questions about the issues his action raises (which we explore in this week's Guardian). Among those issues is whether Mirkarimi's plea to a misdemeanor count of false imprisonment, involving a conflict with his wife, relates to his official duties and rises to the level of official misconduct.

The city's last official misconduct proceedings, brought in the 1970s against Airport Commissioner Joe Mazzola, was overturned by the state Court of Appeal, which found that Mazzola's actions (refusing to order striking plumbers in his union back to work) weren't related to his official duties. Waggoner relies on that ruling in arguing Lee abused his discretion.

“The official misconduct must occur while the official is in office and be directly related to that office,” the brief contends, noting that the alleged domestic violence incident occurred before Mirkarimi was sworn in a sheriff.

In suspending Mirkarimi, Lee relies on new official misconduct language since the Mazzola incident, during the last charter overhaul in 1995, when catch-all language was added banning, “conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers.”

Waggoner says that is unconstitutionally vague and he is seeking to have the court invalidate it. “Ultimately, it's a legal issue at this point,” Waggoner told us. “Is what the mayor accused Ross Mirkarimi of official misconduct or not?”