UPDATED BELOW Did Mayor Ed Lee ask Ross Mirkarimi what really happened in the conflict with his wife before removing him as sheriff? That question is not only important to understanding Lee and whether he was interested in the truth, but it could also be central to next week's court hearing on whether Mirkarimi was denied due process before being suspended without pay.
In an interview published today in the New York Times, and in statements made today to the Guardian, Mirkarimi maintains that he sought to tell Lee the full story but that the mayor wasn't interested. “He was clear that he was not interested in events or details, which were represented by me, even when I encouraged him,” Mirkarimi told The Bay Citizen, whose content the Times runs. “It was more than one occasion I offered to tell him my side of the story. If I had, it could have dramatically changed the mayor’s understanding of the situation.”
Yet the affidavit by Lee that was submitted to the court this week – which is written under penalty of perjury – paints a very different picture: one of the two men sitting in uncomfortable silence rather than Mirkarimi seizing the chance to shape Lee's understanding of the situation.
“I asked Sheriff Mirkarimi to meet with me, because I felt that I needed to hear from him and consider what he had to say,” Lee wrote of the March 19 meeting where he gave Mirkarimi 24 hours to resign or be suspended, noting that he had reviewed the court records and “it appeared to me that he had engaged in official misconduct.”
“I explained to Sheriff Mirkarimi that I wanted to give him an opportunity to talk to me about this issue. It was a free flowing conversation with no time constraints. Sheriff Mirkarimi told me that he has not yet told his side of the story. I said, Okay, and waited for him to tell me his side of the story. He did not. Instead, after pausing, he asked me whether the suspension was based on his conduct as Sheriff. I responded that it was based on his conduct as a public official. I paused again and waited for Sheriff Mirkarimi to give me whatever information he thought important. He did not. Instead, Sheriff Mirkarimi asked me whether the suspension would be with or without pay. I told him it would be without pay. After giving him another chance to ask questions or give more information, I told Mr. Mirkarimi to consider my instruction to resign over the next 24 hours,” Lee wrote.
In an exchange of text messages with the Guardian, Mirkarimi maintains that Lee wasn't interested in hearing from him or his wife, Eliana Lopez, what happened during the New Year's Eve altercation or in its aftermath.
“On more than one occasion I offered details to Lee. He was either mute or changed the subject. Think about it – why else would they have DHR Miki Callahan [the city's deputy human resources director] try to depose me after I was suspended without pay – they shoot first, then realize they better ask questions,” Mirkarimi wrote.
We asked why he didn't use the opportunity of his meeting with Lee to tell his story.
“As I said, I did try. More than once. He wasn't interested. In fact I told him how painful it's been to not have contact [with Lopez, whom the court has barred him from contacting] since January 13, and encouraged him to get an independent account from my wife, Eliana; offered her phone number. Lee didn't take it,” Mirkarimi said.
Paula Canny, Lopez's attorney, has also said that Lee never tried to reach her and didn't seem interested in what really happened. But the city's official misconduct complaint makes a number of unsubstantiated allegations about that incident and what happened since that Mirkarimi and Lopez deny.
For example, the complaint claims that Mirkarimi “or his agents” asked Ivory Madison, the neighbor who helped Lopez make a videotape of her showing a bruise on her arm inflicted by Mirkarimi, to “destroy evidence,” a charge her husband, Abraham Mertens, made in a Chronicle op-ed. But in her own subsequent op-ed, Lopez says that wasn't true and that Mirkarimi wasn't even aware of the existence of the tape until after Madison had called the police and told them about it.
In the Times article, Mirkarimi also disputed another key allegation from the formal charges against him: “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.”
That allegation also came from Madison, who hasn't responded to calls from the Guardian, the Times, or other media outlets. But Mirkarimi told the Times that what he really told his wife was that California has “powerful” child custody laws that would make it difficult for her to take their son back to Venezuela if they divorced.
“I never said, ever, that I’m a powerful person,” he said. “It’s not even my style. I was quoting in the context of what had been a very familiar and painful reminder that, six months earlier, Eliana had been out of the country with Theo for two and a half months. I was referencing family law.”
Other news broken in the Times story was Mirkarimi disputing that he called the case a “private matter, a family matter,” saying that statement that so outraged domestic violence groups was “distorted by the press.” The article also quotes journalist Phil Bronstein minimizing the phone conversation he had with Madison before she decided to report the Mirkarimi-Lopez incident to the police, saying he only helped Madison contact “three people who Ross was close to” for reasons that weren't clear. Bronstein, who hasn't returned our calls on the issue [SEE UPDATE BELOW], was on the witness list for Mirkarimi's domestic violence trial before Mirkarimi pled guilty to the lesser charge of false imprisonment.
The City Attorney's Office isn't commenting on the case, and when we asked the mayor's Press Secretary Christine Falvey why Lee didn't seek an account of what happened from Lopez or Mirkarimi, she told us simply, “The Mayor met with Ross Mirkarimi twice to discuss this.”
In the city's response to Mirkarimi's lawsuit seeking reinstatement of his pay and position until the official conduct hearings are resolved, which will be heard in Superior Court on April 20, they claim, “The Mayor met personally with Petitioner to discuss his intentions and has repeatedly invited Petitioner to tell his side of the story, an invitation Petitioner has repeatedly declined. But even more fundamentally, the due process claim fails as a matter of law. The constitutional right to due process is triggered only when the government works a deprivation of a legally recognized liberty or property interest.”
The city says caselaw is clear that elected officials can't claim their office belongs to them. “A public office is always a public trust,” the city argues. But Mirkarimi's attorneys say all employees have a clear property interest in their salaries, and they say it was illegal, coercive, and unfair to deprive Mirkarimi of his while he goes through the months-long official misconduct process. Police officers are almost always paid during their suspensions.
UPDATE 4/16: The message that I left for Bronstein seeking to speak with him about his conversation with Madison was nearly two weeks ago, and he called to take issue with my statement that he didn't call back and with my characterization that he "minimized" his conversation with Madison in the New York Times article, although he did characterize their conversation as brief and fairly insignificant.
"Ivory Madison called me to say there were three people that Ross trusts and Eliana might want to get ahold of them, do you have their contact information, and I said I could probably get it," Bronstein told us, noting that he never contacted any of them on her behalf. Sources tell us the three people were Aaron Peskin, Art Agnos, and Michael Hennessey. "No one was contacted, no information was passed, that was the extent of the conversation."
Bronstein left those comments in a voicemail. I'm still waiting to talk to him about whether the conversation included talk of the incident and whether police should be involved, and I'll update this post when I hear back.