Commission narrows Mirkarimi charges to one but recommends removal

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Ross Mirkarimi with Eliana Lopez, attorney David Waggoner, and his mother, Nancy Kolman Ventrone (right), after the ruling.
Steven T. Jones

The Ethics Commission today unanimously rejected most of Mayor Ed Lee’s official misconduct charges against suspended Sheriff Ross Mirkarimi – including abuse of power, impeding a police investigation, and dissuading witnesses – but voted 4-1 to recommend the Board of Supervisors find him guilty of official misconduct for grabbing his wife’s arm on Dec. 31 and pleading guilty to the resulting misdemeanor charge of false imprisonment.

The sole dissenting vote, Chair Benedict Hur, said he had “grave concerns” that such as a broad interpretation of what behaviors constitute official misconduct would give mayors a “strong tool” to inappropriately remove their political adversaries (or at least invite charges that they were), as Mirkarimi supporters allege is happening now.

But the rest of the commission adopted a broad interpretation of what city officials and voters intended in 1995 when they overhauled the City Charter and added a new official misconduct clause banning “conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers.”

“I have a lot of concerns about where you draw the line if you don’t relate it to official duties,” Hur said, appealing to his colleagues that, “I think this charter provision was meant to be narrow.”

Commissioner Paul Renne – who in earlier hearings had taken a strong role in excluding prejudicial evidence against Mirkarimi and was thought to be a possible vote in his favor – today led the charge in interpreting misconduct in the broadest possible way, arguing it didn’t even have to be related to his official duties, while the three other votes against Mirkarimi made the case that his conduct and conviction were related to a sheriff’s role overseeing the jail and its domestic violence programs.

“I think the voters would be shocked if we were to say a public official who pleaded guilty to domestic violence has not committed an act of official misconduct,” Renne said.

But Mirkarimi’s attorneys and supporters – who outnumbered those urging his removal (mostly domestic violence advocates) by more than 4-to-1 during the three hours of public testimony taken today – say the shocking thing is for a just-elected official to be unilaterally removed from office by a political adversary for reasons that today’s proceedings showed were tenuous.

“No case has ever been upheld in court to remove an elected official for a low-level misdemeanor,” said Paula Canny, the attorney for Mirkarimi’s wife, Eliana Lopez, who sat next to and supported his husband throughout today’s nine-hour proceedings.

Indeed, the city is wading into uncharted waters and the commission had few court precedents to draw from in making its findings. It’s also possible that the charter provision is unconstitutionally vague, as Mirkarimi’s attorneys have alleged, both here and in court, with an earlier judge opting to wait until after the city’s process plays out before ruling on the question.

But first, it will be up to the Board of Supervisors, where nine votes on the 11-member body are required to remove Mirkarimi. Today’s hearing got complicated at the end – as commissioners wrestled with what it means to essentially throw out the mayor’s charges and adopt their own more narrow accusation, and how to present everything to the board – that it decided to hold one more meeting in early September to adopt a summary and send everything to the board, which will then have 30 days to act.  

“I leave this process concerned that the will of the voters is being undermined,” Mirkarimi told reporters after the hearing. Holding his hand, Lopez said, “I’m shocked to see what happened today, but we are fighters.”

 

For complete coverage and analysis of what happened today, what it means, and what’s next, read next week’s Bay Guardian.