Ethics Commission opens the long and complex case against Mirkarimi

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Suspended Sheriff Ross Mirkarimi awaits the start of today's Ethics Commission hearing.
Steven T. Jones

Tonight’s first Ethics Commission hearing on the procedures and standards that will govern the official misconduct proceedings against suspended Sheriff Ross Mirkarimi showed just how complex, contentious, and drawn out this unprecedented process will be.

The commission made no decisions other than setting a schedule for both sides to submit a series of legal briefs and responses over the next five weeks, on which the five-member appointed body will begin making procedural decisions during a hearing set for May 29.

Deputy City Attorney Peter Keith, who is representing Mayor Ed Lee and leading the city’s prosecution, took an aggressive tack in criticizing Mirkarimi for refusing to be deposed by him and announcing Lee’s intention to add that unwillingness to cooperate to the formal charges against Mirkarimi.

But Mirkarimi’s attorney Shepherd Kopp called that threat “beyond the pale. We have a legitimate legal question we need straightened out and we won’t be bullied.” That issue involves what rights and obligations Mirkarimi has in this process, which the commission has yet to establish. 

Kopp complained that the mayor and City Attorney’s Office are usurping the commission’s charter-mandated role as the investigative body in official misconduct cases by issuing subpoenas for evidence and witnesses before the rules for the hearings have even been set or Mirkarimi has been presented with the evidence against him.

“Until we understand what the mayor’s evidence is, we have no way of preparing a defense,” Kopp said, adding that, “The charges were brought before the evidence was in the mayor’s possession.”

He called for the commission to take control of the investigation and establish discovery rules rather than letting the Mayor’s Office act on its own. “We feel like we have one hand tied behind our backs,” he said. “Whatever the rules are, they ought to apply to both sides.”

There’s very little that Kopp and Keith agree on at this point. Kopp wants the Ethics Commission vote to be unanimous if it recommends removal, as with juries on criminal cases, but Keith argues that a simple majority will do. The Board of Supervisors will make the final decision, with nine of 11 supervisors required to remove an official. Kopp says the standard of guilt should be “beyond a reasonable doubt,” but the city will likely argue for a lower standard, such as preponderance of evidence.

Kopp wants the commission to establish the standard that official misconduct must be related to the sheriff’s official duties and have occurred while he is in office, but Keith indicated that the events of Jan. 4, when the police began to investigate the domestic violence incident and before Mirkarimi was sworn in as sheriff, are an important part of their case.  

Keith noted that Mirkarimi could demand a closed door hearing, as the courts have agreed that law enforcement officers are entitled to, but Kopp told the commission, “We do not intend to insist these hearings should be private. We want them to be public.”

There were even internal differences within the city. Ethics Commission Executive Director John St. Croix last week wrote a memo recommending that testimony from witnesses be in written form, but the City Attorney’s Office today wrote a last-minute memo arguing the need for live testimony and cross-examination of witnesses.

“A live hearing is going to better serve the goals of the commission,” Keith argued, calling for it to be “something of a mini-trial.” Kopp agreed with that characterization, calling it “akin to a criminal proceeding,” and with the need to allow live testimony: “I think it will be unavoidable for at least a couple witnesses.”

Commission members asked a number of questions to both sides, but with such a broad range of issues still to be decided, they seemed to be only tentatively scratching the surface and unsure how to proceed. But there were a couple questions from Chair Benedict Hur that were illuminating.

“Does the mayor dispute that he has the burden of proof here?” Hur asked Keith, who replied, “No.”

Keith cited Mirkarimi and his wife, Eliana Lopez, as two witnesses who will likely be the subject of live testimony and vigorous cross-examination. But when Hur asked Kopp whether he would object to the commission compelling testimony from Lopez, he said that’s connected to a variety of outstanding procedural issues and he wouldn’t be able to answer “for quite some time.”

Indeed, both sides have indicated that they would need at least 30 days to prepare their cases once all the procedural and evidentiary issues are resolved, pushing the hearing back until at least July, although all sides say they want the matter resolved as quickly as possible.

“The longer this drags out, the person being most prejudiced is the sheriff,” said Commissioner Paul Renne, who was appointed by District Attorney George Gascon in February and who opened the hearing by admitting having given a $100 campaign donation to Chris Cunnie, who ran against Mirkarimi. Ironically, it was Renne who seemed most taken aback by Keith’s threat to add Mirkarimi’s refusal to cooperate with the city’s prosecution to the charges against him.

But Kopp said Mirkarimi will be happy to offer his testimony and comply with requests for documents once the commission establishes the rules and procedures and exerts its authority over the proceedings: “If you think he’s got to cooperate and turn it over, we’ll do it.”

The first city brief is due April 30, but the most illuminating deadline will likely be May 7 when the Mayor’s Office must submit its proposed list of witnesses and a summary of their expected testimony, which should be an early indicator of the strength of their case against Mirkarimi.

Comments

A well written complete report free of opinion and actually full of facts. Nice job.

Posted by D. native on Apr. 23, 2012 @ 10:27 pm

Contrast this story with what the SFTripe is peddling... not that I would recommend to "click" any of their smelly links.

Posted by lillipublicans on Apr. 24, 2012 @ 12:37 am

Mirkarimi looked chipper at the hearing. I guess he's getting back some of his "testosterone-packed" swagger.

It helps having a lot of supporter in the room with you.

Posted by Troll the XIV on Apr. 24, 2012 @ 6:35 am

this looks like such a clusterfuck. I wish there was some compromise that could be reached that would put this whole thing to rest, but I can't really think of any as both sides seem so dug in. the coming months of legal wrangling is just depressing, and that doesn't even include the depressing site of this potentially going to the BoS.

thanks for the update regarding what went down last night

Posted by DanO on Apr. 24, 2012 @ 7:32 am

An Ethics Commissioner who donated to Cunnie is not conflicted out of politicized Official Misconduct proceedings against Cunnie's victorious opponent?

Posted by guest on Apr. 24, 2012 @ 7:56 am

When the circus is over and if Mirkarimi prevails, there will be no one that would want to work or deal with the Sheriff's Department. The progressives will not be taken seriously, Mirkarimi has really hurt the movement.

Posted by GuestOfNoOne on Apr. 24, 2012 @ 8:05 am

The sworn deputies had better damn well figure out how to deal respectfully with the duly elected Sheriff if they expect to remain in uniform.

Posted by guest on Apr. 24, 2012 @ 8:09 am

They can respect the office but not the man.

Posted by Dnative on Apr. 24, 2012 @ 8:55 am

Fixed it for ya.

"The sworn deputies had better damn well figure out how to deal respectfully with the duly elected and self-confessed false-imprisoner if they expect to remain in uniform."

Posted by Guest on Apr. 24, 2012 @ 12:32 pm

Cops hate the voters, hate San Franciscans.

Posted by guest on Apr. 24, 2012 @ 12:54 pm

Wait and see. Phoenix rising.

Posted by Guest on Apr. 24, 2012 @ 8:41 pm

I watched the whole thing yesterday. Thank god for those folks who spoke at public comment.

The only off note i heard--in that there was something distinctly disturbing about it, like a lone wolf crying in the dark--was Beverly Upton's comment. Amidst all the sanity, all the soul, all the attempts at clarity and desire for an ability to distinguish the real from the unreal, all Beverley could say was that "the world is watching".

In a way, I think the statement--that she repeated twice if i'm not mistaken--is telling. It is a cliché...A cliché. Clichés say nothing. NOTHING. There *is* no subtlety in a cliché. And that is the problem with the likes of Beverly Upton, with all due respect to the work she and others have done to bring down the numbers on Domestic Violence.

Her brief comment was classic fear-mongering of the kind that I for one have no respect for and can see right through. It's what got us into Iraq. Fear is a powerful emotion, and I am not going to say nothing when I see it paraded in front of me in service of miscarriage of justice. Beverly Upton is reacting to something that might have looked on the surface like a classic case of Domestic Violence, but upon further scrutiny, we can see that it was not. Some of us have the willingness to distinguish between surface similarities and reality. I hope, I really hope that the Ethics Commission will muster/can muster this capacity and do something different than react. I hope it will respond appropriately to all the facts in this case.

Posted by Daniele Erville on Apr. 24, 2012 @ 2:01 pm

Time to cut your boy loose. He's more trouble than he's worth. You may note that Matt Gonzalez, his old pal and the guy from whom Mirkarimi served as campaign manager in the 2004 mayor's race, didn't endorse Mirkarimi for sheriff. This guy is toxic. Don't waste your time backing him up when so many worthwhile causes need your help.

Posted by Peter Klein on Apr. 24, 2012 @ 2:35 pm

So what if Matt Gonzalez didn't vote for him? Matt Gonzalez votes his own way for all kinds of reasons...A non-vote by Matt Gonzalez is a non-starter.

Posted by Daniele Erville on Apr. 24, 2012 @ 2:51 pm

He wasn't his campaign manager, troll. He was his PR spokesperson. Get your facts straight before spewing troll sludge.

Posted by Guest on Apr. 24, 2012 @ 8:40 pm

Because the penalties are nowhere near as harsh. How absurd to demand that a hearing over the fate of one's job be held to the same standards as a death penalty trial.

Posted by Troll II on Apr. 24, 2012 @ 4:32 pm

Missed are the days when progressives had a lot more integrity. Matt Gonzalez, Michael Hennessey et.al., inspirational and respected even out of the progressive circle, but Mirkarimi makes a laughing stock of the movement. Ramming his politics down people's throats, blaming his wife for her bruise and explaining it away as protecting his son and not cooperating with an investigation.
A sheriff that does not believe in the justice system and whose main objective is to uphold the law, everything about him is not progressive.

Posted by GuestOfNoOne on Apr. 24, 2012 @ 4:39 pm

Gonzo not so much.

Posted by Guest on Apr. 25, 2012 @ 6:19 pm

If folks want to watch the proceedings and/or the public comment that followed, it's all here:
http://sanfrancisco.granicus.com/MediaPlayer.php?view_id=142&clip_id=14920

Posted by Daniele Erville on Apr. 24, 2012 @ 6:07 pm

Wow! Watching this on TV made it very interesting. Can this turn into a kangaroo court? The way the City Attorney was arguing it, maybe so. It's theirs to lose.

"There were even internal differences within the city. Ethics Commission Executive Director John St. Croix last week wrote a memo recommending that testimony from witnesses be in written form, but the **City Attorney’s Office today wrote a last-minute memo** arguing the need for live testimony and cross-examination of witnesses."

This somehow seemed weird that such late breaking information was being introduced and only the commissioners had a copy. Isn't all information in a public meeting required to be available to the public? Doesn't happen at the state level. They know things can get tanked fast if the public doesn't get it. Don't think a court would allow it without some objection either without allowing the other side to have some time to review. Should have been thrown out and force them to resubmit after the meeting was over.

A little research on the Sunshine Task Force website into the law seems this is against Sunshine Ordinance 67.9(c): "Records which are subject to disclosure under subdivision (a) and which are distributed during a public meeting but prior to commencement of their discussion shall be made available for public inspection prior to commencement of, and during, their discussion."

Seemed the Chair and other commissioners were disturbed they received this late breaking memo after the meeting started including Mirkarimi's legal team as they didn't even get one at the meeting until they requested it on the spot. They should have rejected it right away.

Doesn't the City Attorney make sure the entire city staff follows this stuff like Sunshine and other laws so we, The City, don't get sued? Yes, as this article says, they are lawyers (except for one) and should know but I think the city staffers and attorneys who are paid to help them should be the responsible parties for knowing this in the end.

Did the City Attorney take advantage of the commission and its taxpayer-paid outside attorney? That is incredulous.

Suprisingly, none of the public commenters who seemed to know Sunshine picked it up either.

Welcome to San Francisco!

Posted by Guest on Apr. 24, 2012 @ 8:38 pm

willfull evasion of the Sunshine Ordinance *is* grounds for suspension by the mayor under city ethics code. Scumbags.

Posted by lillipublicans on Apr. 25, 2012 @ 9:46 am

Please, could somebody, tell me what ACTIONS OF ROSS the mayor thinks constitute Official Misconduct.

The couple had a fight and he bruised her arm on Dec. 31st. I got that one.

Is there ANYTHING ELSE, specifically.

Anything HE did, specifically, that warrants this whole crazy proceeding. Anything?

Might, maybe, have told his wife something, sometime, related to something or other that maybe discouraged her from calling the police or maybe encouraged her to call Ivory Madison or her husband....doesn't count. Is there a specific phone call, or statement, or email, or something ROSS DID that the mayor is relying on.

Ross being arrested is not something ROSS DID. Ross being in jail for however long is not something ROSS DID. Eliana calling her neighbors is not something ROSS DID.

Really, folks. Ask the Ethics Commission "What actions of Ross's is the mayor going to prove to justify the Official Misconduct suspension?" If the ONLY ACTION is the argument in the minivan and the arm grab on Dec. 31st, which was completely settled by the plea agreement, the Ethics Commission process could be over in 60 minutes. No, a misdemeanor incident involving one argument in a minivan for 15 minutes 9 days prior to becoming Sheriff is NOT ENOUGH to warrant removal for elective office.

Stephen L.

Posted by Guest on Apr. 25, 2012 @ 8:06 am

Ross being arrested is not something ROSS DID. Ross being in jail for however long is not something ROSS DID.

No Ross did not arrest himself or lock himself in jail (he was just booked and released in reality). But it WAS the ACTIONS of Ross that landed him in this mess.Can't blame anyone else for it but himself.

Posted by Dnative on Apr. 25, 2012 @ 9:31 am

Jason Grant Garza here ... ETHICS at the ETHICS commission ... wasn't St. Croix found guilty of "OFFICIAL MISCONDUCT" by the SUNSHINE TASK FORCE? What about all the ORDERS of DETERMINATION for "OFFICIAL MISCONDUCT" that get shot down by ETHICS form the Sunshine Task Force (MINISTRY of SUNSHINE - city's risk-management shill) ? They seemed to have "GROUND RULES" to do this ... so how this is ROSS matter any different? Don't the same GROUND RULES apply?

Does that mean that I can come back to court with my closed case by ETHICS over an "OFFICIAL MISCONDUCT" for the Nurse Ratched case that they closed in a a closed hearing? Since the rules and procedures on evidence are being ESTABLISHED .... does that ESTABLISH that I DID NOT have "DUE PROCESS?" As a matter of fact the Nurse Ratched case was reported here in the SF Bay Guardian ... ask them. Didn't the Civil Grand Jury find these faults with the ETHICS COMMISSION and does it NOT operate out of the superior court .... so why wasn't this repaired before? So if the CRIME LAB had to dismiss and re-open cases because of unfair process .... what is different here with the failed rigged process at ETHICS (sunshine referrals for Official Misconduct) and when will the cases be re-opened. (concept of DUE PROCESS and EQUAL PROTECTION) It is similar to what I have asked the MINISTRY of SUNSHINE regarding its rigged voting process (that it recently changed) where as an example in case # 10038 I had 5 out of 6 votes and would have won under the new correct rules; however, under the old rigged rules ... they shot it down ... Am I not entitled to "DUE PROCESS" and will the MINISTRY reopen the cases? Don't hold your breathe ....

Interestingly enough if you type my name into a google search engine you read here at SF BAY GUARDIAN an article where I received a NURSE RATCHED letter in response to a record request thru SUNSHINE that was sent to ETHICS ... want to bet the OUTCOME ??? What is the difference? You could also ask about the referral on case # 10038 from SUNSHINE that went to SUNSHINE ... would you like to see the OUTCOME?

Yes, VIRGINIA ,,, SANTA CLAUS is NOT ONLY VERY MUCH ALIVE ... the ETHICS COMMISSION has ETHICS ... shall I tell you about writing them (ETHICS) with the CITY ATTORNEY"S HANDBOOK definition of "OFFICIAL MISCONDUCT' in my NURSE RATCHED case and what response I got? Would you believe NOTHING, NADA, ZIP.

Isn't Scott Wiener's Office interested in SUNSHINE's cost ... what about the MONEY that the city saves ( since SUNSHINE and ETHICS are a FARCE) and when the individual uses these "RIGGED" process ... they give up. GREAT "RISK MANAGEMENT" SHILL action ... FALSE HOPE, FALSE PROCESS and FALSE OUTCOME sort of like GARBAGE in , GARBAGE out. Wasn't there an article in the BAY GUARDIAN regarding ETHICS, the MINISTRY of SUNSHINE and the constant GOING NOWHERE with the MINISTRY's ORDER of DETERMINATION for "OFFICIAL MISCONDUCT' that is sent to ETHICS for ENFORCEMENT ??? Yes, the BIGGER the LIE ... the MORE the (sheep - people) will believe it.

Isn't it UNETHICAL not to ASK THESE SPECIFIC QUESTIONS ???

Please type my name into a google search engine and read how the city BROKE FEDERAL LAW, had my case dismissed in FEDERAL COURT (C02-3485PJH) by TESTILYING only to sign a confession (settlement agreement) years later with the OFFICE of INSPECTOR GENERAL to whom they paid a FINE yet LEFT their INNOCENT VINDICATED VICTIM for DEAD. NO JUSTICE, NO REMEDY, NO HOPE and NO HUMANITY. Any more questions ... as to HOW FAR THE CITY WILL GO ???

So where are ... were the ETHICS ... will the MINISTRY of SUNSHINE ask why their referrals are STRUCK DOWN and how this (Ross') Official Misconduct is any different than NURSE RATCHED, or ST. Croix and I believe Ms. Gomez from the Library?

Just thought I would ask the question for "REASONABLE" men.

Posted by Jason Grant Garza on Apr. 25, 2012 @ 1:59 pm

This is going to be such a long and drawn out case. Plenty of time will be spent and state's money will be used to fight this case. When the lawyers of both sides seem more interested in arguing over minor formalities and rules before the actual engagement, I can tell this will last a few months at least.

Posted by Simon on May. 14, 2012 @ 8:20 pm

Please I am Mrs Christophere Hugh Cunnie AKA w2anna be SFSherriff and IU am beind domesatically Financially abused rite now in real time!!!!!!!!!!!!please..somebody help me!ccunnie44@gmail.com

Posted by Guest on Jul. 01, 2012 @ 1:46 pm