The Mirkarimi case: Did the city want to settle?

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Photo by Luke Thomas/Fog City Journal

The real news in the Ross Mirkarimi case isn’t the sheriff attempting to get the city to pay his legal fees; that’s just something he had to try but it was a long shot at best. The story that’s come out in bits and pieces since we broke it is far more interesting:

City Attorney Dennis Herrera, with or without the knowledge of his client the mayor, offered to begin discussions with Mirkarimi around settling the case -- and the conflicting accounts of what went on show haw harsh this legal proceding has become.

Whatever you think about Mirkarimi’s actions on New Year’s Eve -- and I’ve said many times that what he did was unacceptable -- the intensity of the prosecution, particularly in the removal proceding, is unprecedented.

Some of the political fallout is clearly Mirkarimi’s fault. He bruised his wife, got bad advice early on, said the wrong things, and didn’t do enough to repair the damage. But now Mirkarimi’s lawyer is charging that the city attorney used a nasty legal gambit to try to convince the embattled sheriff to resign.

David Waggoner, in a TV interview with KGO’s Dan Noyes, and later in discussions with me, said that City Attorney Dennis Herrera offered to look for a way to keep the video of Mirkarimi’s wife out of the public eye -- if Mirkarimi would take a financial settlement and resign from his elected position.

Mirkarimi told me the offer he heard from his lawyer put him in a terrible bind: Franky, the video contains nothing that hasn’t already been out, and won’t be the defining issue in the official misconduct case now before the Ethics Commission. But his wife, Eliana Lopez, was adamant that she didn’t want the 45-second clip on the Internet, where she -- and more important, their three-year-old son -- will have to live with it forever.

“They were using the needs of my family to pressure me,” Mirkarimi said.

Waggoner was pretty specific about his recollection of the settlement discussions. He said that after Herrera contacted him to say that he was willing to discuss settling the case, Waggoner made it clear that keeping the video sealed had to be part of any deal.

“We hung up, and then he called me back five minutes later to say that his government team was working on it, and he thought they could keep the video under seal,” Waggoner said. “The mayor and the city attorney were using the video as leverage.”

Hererra confirmed that he reached out to Waggoner to see if Mirkarimi’s legal team was interested in settlement discussions. But told me that Waggoner’s story was “absolutely, categorically untrue.” He insisted that he had no choice but to release the video, since several media outlets had requested it under the San Francisco Sunshine Ordinance.

In a statement issued June 8, Hererra attacked not only Mirkarimi but his attorneys:

"Everyone involved in this case was well aware of the City's legal obligations under the Sunshine Ordinance (which Ross Mirkarimi himself had a hand in drafting).  The City invoked the maximum allowable two-week extension after receiving Sunshine requests for the video, to allow other parties to seek a protective order.  But opposing counsel dropped the ball.  They didn't get a protective order.  They didn't seek Supreme Court review.  They didn't raise the issue at the Ethics Commission hearing.  And as far as I know, [Lopez’s counsel Paula] Canny didn't even bother to show up at the hearing.  So, I think it's a little absurd now to be playing martyr.  These are lawyers representing a former lawmaker.  They have no excuse for not knowing the law."

Wow. Sounds like the usually level-headed Herrera is one pissed-off attorney.

Interestingly, Mayor Lee told Noyes that he didn’t know anything about any settlement discussions. Either that’s false (the mayor could have been instructed by Herrera not to say anything) or Herrera was going ahead without the mayor’s knowledge or permission.

So let’s set aside for the moment the back-and-forth about who’s telling the truth and what was really involved in the negotiations. Here’s what’s not in any serious dispute:

Herrera, representing the mayor, was sufficiently motivated to settle the case before it got to the Ethics Commission that he personally called Mirkarimi’s attorney to see if there was any possibility of finding a way out. Again: Attorneys in the most bitter lawsuits are advised to seek settlement. But this isn’t in court, and no judge mandated a settlement conference.

Which suggests that the city attorney and possibly the mayor would be a lot happier if this case just went away. Maybe Lee doesn’t like the drama. Maybe Herrera thinks it would be best for Mirkarimi and the city to put this in the past and move on.

Or maybe they aren’t sure this case is such a slam-dunk winner.

There’s another interesting twist, too: Mirkarimi told me that he asked the Probation Department for permission to fly to Venezuala to see his son. There were no conditions on his guilty plea barring him from travelling outside of the country (what -- they think he won’t come back? That he has run through all of his money and put himself heavily in debt to fight a case that he’s now going to run away from?) But when he made a formal request, it was denied.
That’s right -- probation officials refused to let him go visit his son. Forget Mirkarimi -- that’s not fair to the three-year-old kid who did nothing wrong at all and is suffering for it.

Comments

Posted by Guest on Jun. 12, 2012 @ 6:31 pm

Tim, I see very few comments here or in other BG stories that "just call you a jerk." Most are criticisms, with varying degrees of validity in my opinion, about what you write and what that says about your agenda.

Posted by Guest on Jun. 14, 2012 @ 6:29 am

descend into name-calling, obscenities and abuse. Those who most talk about how "tolerant" and diverse" SF is sometimes struggle the most with tolerating diverse opinions.

Posted by Guest on Jun. 14, 2012 @ 7:02 am

Used by opponents of Mirkarimi shows their true nature. From attacking the writer to making fun of people's names it shows a disrespect for other points of view. Just based on that I would not take them seriously.

Posted by Avkanediv on Jun. 12, 2012 @ 2:09 am

In fact, the left should be angry with him too, for blowing one of the few opportunities a leftie ever had in an elected city-wide office.

Did it ever occur to you that the folks here are merely representative of the city's residents as a whole? In fact, the folks here are probably less anti-Ross than is typical. But we still want him gone.

Posted by Guest on Jun. 12, 2012 @ 10:15 am

"In fact, the left should be angry with him too, for blowing one of the few opportunities a leftie ever had in an elected city-wide office."

Absolutely. We see ugly aspects from the lives of public officials on a regular basis. But they normally are able to size up the severity of the situation, own up to it, let us know what they are going to do about it and sometimes we accept the contrition and let them move on.

But the way that Mirkarimi handled this? Starting with the 'private matter' fiasco? The downplaying the guilty plea. Do I want people like that running the city? Um, no.

But to be fair, Daly and Peskin had already made it clear that many Progressives have highly flawed characters.

Posted by Troll on Jun. 12, 2012 @ 10:48 am

As do you, Troll. We're all flawed. Get off your high horse and stop speaking for the people of San Francisco. You're a faceless nobody.

Posted by Guest on Jun. 13, 2012 @ 12:40 am

have been unbelievably insensitive to the needs of the Mirkarimi family. They have treated both Theo and Lopez and non entities to be viewed strictly from a statistical point of view with no individual needs.

At this point they have gone so far off the deep end they are just proving their bias. No wonder city wants to settle. Because this is going to boomerang back on the city exposing its broken justice system.

Posted by Avkanediv on Jun. 12, 2012 @ 2:17 am

Stayaway orders are routnine where there has been domestic violence. I think the problem is that most people didn't realised how our DV laws worked until RossGate brought it to their attention.

If you want to change the DV laws, then work towards that. But don't complain when the laws work exactly as they are designed to do.

Posted by Guest on Jun. 12, 2012 @ 7:26 am

Jason Grant Garza here ... Herrera said "Everyone involved in this case was well aware of the City's legal obligations under the Sunshine Ordinance (which Ross Mirkarimi himself had a hand in drafting). The City invoked the maximum allowable two-week extension after receiving Sunshine requests for the video, to allow other parties to seek a protective order. But opposing counsel dropped the ball. They didn't get a protective order. They didn't seek Supreme Court review. They didn't raise the issue at the Ethics Commission hearing. And as far as I know, [Lopez’s counsel Paula] Canny didn't even bother to show up at the hearing. So, I think it's a little absurd now to be playing martyr. These are lawyers representing a former lawmaker. They have no excuse for not knowing the law."

He said this regarding SUNSHINE (the MINISTRY of SUNSHINE) where his city attorney (DPH) and the SOTF (City Attorney) stated that I could NOT get my OWN MEDICAL RECORDS in SUNSHINE because of their "MISINTERPRETATION" of the HIPPA law. If you type my name into a google search engine and read ... you will see this is not the first time the city attorney has been WRONG. Look at case C02-3495PJH where the city TESTLYIED to have my MEDICAL CASE dismissed only to sign a CONFESSION/ Settlement Agreement with the Office of Inspector General years later. WHY SIGN A CONFESSION (2007) when the CITY lied to have my case dismissed (2003) and WHY NO FOLLOWUP? Don't believe me ... type my name into a google search engine and read. Or better yet, I started a website ... MYOWNPRIVATEGUATANAMO.COM ... there you will see (some paperwork.)

Now again, I went to MINISTRY of SUNSHINE to get my OWN MEDICAL RECORDS for their (City - Tom Waddell) denials of MEDICAL CARE (case # 10038 (2010) and # 11081 (2011)) where the city attorney again stated the WRONG INCORRECT INTERPRETATION and I still await the HIPAA expert ( see SOTF failure) even thou they (city attorney) has recently CONCEDED I was CORRECT. When I call to ESCALATE this INJUSTICE for a FULL investigation and complaint ... I am told by Herrera's Office that I am harassing by followup and holding them to account in order to correct, document and effect change. Call them and ask 554-4748 ask Tara or Allie as I have taken notes and documented the ABUSE. Yes, Virginia false and rigged process as far as the eye can see ... what happened in case # 11081 ... did the MINISTRY of SUNSHINE hold the city ACCOUNTABLE? Where are my MEDICAL RECORDS, JUSTICE or consequence?

So ROSS' ETHICS is GRAVE and CONCERNING ... what about the ETHICS referral of St. Croix and several supervisors for "OFFICIAL MISCONDUCT" that were referred to ETHICS I believe in Sept of 2011 ??? Are they NOT entitled to the same as ROSS ... fast speedy resolution? Aren't the same rules in place ... yes, Virginia ... what a wicked web we weave when we intend to deceive.

Funny part is that I thought after I got the confession (2007) I'd find CIVILITY ... instead the GAMES continue and NOTHING changes.

"Telling the TRUTH during times of UNIVERSAL DECEIT becomes a REVOLUTIONARY Act." George Orwell.

Go ahead I dare you ... go to MYOWNPRIVATEGUANTANAMO.COM ... see the GAME, see the INHUMANITY and see the CONSEQUENCE. Be sure to NOTICE page two of the CONFESSION # 6 ... an admission of fault and guilt for BREAKING FEDERAL MEDICAL LAW ... then leaving their INNOCENT VINDICATED VICTIM for DEAD and please note the CONFESSION didn't come after the City Attorney had a change of heart (scorched earth tactics) ... rather my continuation against all odds many years later ... any MORE QUESTIONS ??? As a matter of fact the CITY ATTORNEY still HAS NOT EXPLAINED HOW THIS COULD HAPPEN .... nor has he explained my false "5150" during the deposition for case C02-3485PJH when I pointed out that it was false and done in order to BULLY and INTIMIDATE me. Shall we pull my records? Where was my DUE PROCESS, level playing field, civil, medical, legal, human or any KIND of RIGHTS?

Justice for the RICH and JUST THIS for you and me. Where are or were the ETHICS with the CONFESSION and leaving me for DEAD?

Oh and if you think that is strange ... call and ask the MINISTRY 554-7724 why to this date I still have not gotten the correct information as to who accredits the patient/medical care side of DPH and its clinics (see case # 11099) where the information received was INCORRECT and WRONG ,,, you mean DPH 554-2525 does NOT know who accredit them? Yes, Virginia let the GAMES CONTINUE ... per the MINISTRY ..."they gave you what they have ... " RIGGED is as RIGGED DOES.

Posted by Jason Grant Garza on Jun. 12, 2012 @ 6:30 am

Clearly severely mentally ill. ^

Posted by greg on Jun. 13, 2012 @ 6:46 am

Jason Grant Garza here ... to GREG ... if your comment was about me, you apparently did not go to myownprivateguantanamo.com . For there you would have seen the signed confession/settlement by the city ADMITTING fault and guilt for breaking FEDERAL LAW. However, per your spin ... I'm clearly severely mental ill ... maybe I'm just not BOUGHT by the system. Read page TWO of the CONFESSION ... however, thank you for your compassion and concern ... NOT to mention INHUMANITY at the TRUTH. Again the website with the PROOF is myownprivateguantanamo.com and NOTE that if I was speaking UNTRUTHS I would have been arrested already UNLIKE the lawbreakers in case C02-3485PJH. Go ahead continue to attack the MESSENGER ...

Again thank you for the OPPORTUNITY to list the website for others to see NOT only the TRUTH but what others (Greg) will do to defeat, deflect and deny the TRUTH. Calling me names DOES NOT CHANGE the TRUTH ...

Posted by Jason Grant Garza on Jun. 14, 2012 @ 6:22 am

Tim Redmond is no longer credible, just like Mirkarimi, his wife, and his laywers.

Posted by Guest on Jun. 12, 2012 @ 8:29 am

Test.

Posted by rjerje on Jun. 12, 2012 @ 6:59 pm

The NeoConArtists have every desire to capture the post of Sheriff in this major west coast port.

They are also going for a trifecta:
- In rolling back the immunity a wife has against testifying against her spouse, and the use of a video in lieu of that testimony.
- Breach of trust by an attorney who is not an attorney, but plays one in a neighborly way,
- And the opportunity to abuse the SubPrime eviction process with deputies taking orders from a cabal.

In addition to:
- Further opportunities to abuse the immigrants in a Sanctuary City, with extortion, etc.
- An ability to abuse a journalist, Ms Mirkarimi, in many ways.

Posted by David Grace on Jun. 12, 2012 @ 10:33 pm

I fail to see any maritime connection here.

Posted by Guest on Jun. 13, 2012 @ 6:02 am

Usually, attorney-client privilege is based on litigation where the City is going after a third-party that is not connected with the City or when the City is being sued by a third party or seeking some answer or clarification to ambiguous language (like in a contract or section of law) or, better, under the Sunshine Ordinance, BUT ONLY when an employee is brought up on charges in a real court of law by a third party or member of the public. ("Huh? By a member of the public?" you asked, "I thought the public and its members is the government?" Yeah, run that by a credible attorney. The answer is interesting.)

Here it's just Mayor Ed Lee using City Attorney Dennis Herrera for an **administrative process**. An Ethics Commission hearing is nothing more and is not a judicial process thus there is no cause for the City Attorney to be involved.

The Mayor should be doing this all by himself. Is he capable? After all, it is his motivation to allege official misconduct which is not a judgment. It's an accusation that in this case is so ethereal, vague and subtle based on nothing that it has the air of being Quixotic or tilting at windmills.

The Mayor is no hero but his mentors and cronies are putting him up to be a false one which he is subjugating himself to. They promise him lots of layers of cover; that this will never come back to bite him in the butt. No matter the outcome, he'll come out smelling like roses.

Yeah, rosy glasses and emporer's new clothes, that is.

Be it that this is an administrative process and not a judicial one, all communications, documentation, notes, meetings between them, etc., are SUBJECT TO PUBLIC DISCLOSURE under **not only** the Sunshine Ordinance but under the CA Public Records Act.

Yeah, Herrera can hem-and-haw up the ying-yang but he just blows smoke up everyone's butt anyway and then waits until a court tells him he is wrong. That doesn't come often because no one challenges him in court on issues like that. And, "in court" means outside of SF Superior Court as we know now everyone is playing sides...Because they can.

Someone! Start a substantial recall campaign on both Lee and Herrera and you'll see how quickly they back down which means it is all political. If they don't back down and stand on their laurels no matter what the outcome suffer a successful recall then they at least have some backbone to risk their careers.

Posted by MistOfTheCity on Jun. 14, 2012 @ 2:19 pm

inquiry on behalf of the people and, yes, of course the city attorney needs to be advising the Mayor. That's his job.

The only recall campaign is likely to be to recall Ross if he somehow squeaks through this. 76% of SF voters want him gone while Lee's approval numbers are higher even than the 60% plus landslide he got last November.

But hey, keep it up, you never know.

Posted by Guest on Jun. 14, 2012 @ 3:21 pm

Let's not leave out the real facts, troll. And, what push poll were those results from?

It's one thing for Herrera to be advising the Mayor. It's another to represent him in an administrative hearing.

It's Lee's official misconduct allegations. Not Herrera's. Not the City's.

Posted by MistOfTheCity on Jun. 14, 2012 @ 9:14 pm

Why keep using the intensely bad and distorted expression pictures of Ross?

Would you use one like that of Lee/Herrera over and over?

No one deserves to be continually attacked that way in publications. Posting images like that brings the SFBG to the level of the Chron. Ross has done important work for many years and worked hard on public power campaigns, etc. Why portray him this way?

Posted by Victronix on Jun. 15, 2012 @ 9:08 am

I agree with @Victronix. I too have grown weary of the SFBG's continued overt and subliminal attacks on Sheriff Mirkarimi.

Posted by Troll on Jun. 15, 2012 @ 9:32 am

I agree with victronix as well. These Guardian's imagery of the Sheriff is below-the-belt viscual journalism.

Heads should role

Posted by Guest on Jun. 15, 2012 @ 6:32 pm

Abe Mertens' fiing with the ethics commission raises a boatload of questions. He describes how he peered and poked around the Mirkarimi household one day and didn't approve of the decor. He describes how he believed Mirkarimi was an awful, awful person but decided to host a fundraiser and contribute to his campaign as well, subsequent to that finding of horribleness.
He describes many things as fact that he has in fact never seen, repeats hearsay as fact and ought to know better.

He pooh poohs the idea that any reasonable person would think his wife is a lawyer by reading her website bio. Actually, the exact opposite is true, and he knows it.

There's a good reason he doesn't want to reveal who the investors are in his business. Could there be a prosecutor? a newspaper editor? someone with a powerful interest in removing Ross Mirkarimi as sheriff?

Posted by GuestChristine Craft on Jun. 18, 2012 @ 5:51 pm

God post KristKraft!

Really god post!

Posted by Troll Le quat on Jun. 21, 2012 @ 6:43 am
Posted by Guest on Jun. 21, 2012 @ 7:08 am
Posted by lillipublicans on Jun. 20, 2012 @ 6:58 am

paid to post this biased drivel - she doesn't even live in SF.

Worthless doggeral.

Posted by Guest on Jun. 20, 2012 @ 8:50 am

I double dare you to actually watch the archive tape...particularly at about 56:00 minutes in ...then learn how to spell doggerel.

Posted by Guest dootise on Jun. 20, 2012 @ 11:25 am

have a spare 56 minutes to spare or care about the viewpoints of a spelling nazi.

Posted by Guest on Jun. 20, 2012 @ 11:39 am

see www.sfgovtv.org website..listen to archive at about 56 minutes in as the commission has some bombshell, choice words re: Ivory Madison's declaration...priceless.

Posted by Guest dootise on Jun. 20, 2012 @ 11:23 am

The guy just doesn't get it, even now.

Comments were pretty funny though.

Posted by Guest on Jun. 20, 2012 @ 11:37 am

I think he was afraid , that his wife was about to leave him and take a baby with her.
Grown man don't say I need my family to live, that is the sign , there is something wrong in his psyche..
This may be a sign that he is manic possessive. I believe he should be checked out by psychiatrist.
He may have bipolar condition and not know about it.

Posted by Guest on Jul. 08, 2012 @ 10:38 am