Supervisors advised against Mirkarimi recusals, essentially removing their gags

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It's looking increasingly unlikely that any members of the Board of Supervisors will be recused from next week's big vote on whether to sustain the official misconduct charges against suspended Sheriff Ross Mirkarimi, particularly given an advice letter written today by attorney Scott Emblidge, who is advising the board.

Mirkarimi and his attorneys were hoping some supervisors would admit discussing the case with Mayor Ed Lee or others – particularly Sup. Christina Olague, who is at the center of the controversy about whether Lee committed perjury when he denied, while testifying under oath, ever consulting with any supervisors about the case – and they were disappointed with Emblidge's advice.

“Scott Emblidge parrots the language of the City Attorney in his recommendation against recusal,” Mirkarimi attorney David Waggoner told us, taking issue with the relationship Emblidge and his firm have with the city and the fact that he also served as legal counsel to the Ethics Commission, some of whose members were unaware of that dual role and expressed concern. “The board must appoint independent counsel.”

In his advice letter, Emblidge did take a similar position to that urged by the City Attorney's Office, which argued that supervisors are assumed to be politicians who have some relationship with the person that they're being asked to judge and that analogizing it to a jury in a criminal case isn't accurate.

“That analogy is misguided. The Charter does not provide for resolution of official misconduct charges by a body unfamiliar with the parties or the facts of the dispute. Rather, it specifically entrusts that decision to the Board of Supervisors, a body composed of individuals who almost certainly would have had dealings with anyone charged with official misconduct,” Emblidge wrote in a letter requested by Board President David Chiu. “Rather than a jury trial, this proceeding is more like an administrative hearing involving employee discipline or other important rights.”

Emblidge said the legal standards indicate that a supervisor must have a financial interest in the decision or be so “personally embroiled” in the case that he/she would have already demonstrated a strong bias or animus against Mirkarimi. And even then, it would be up to a majority vote by the board to excuse a supervisor from the vote.

Such recusal votes are usually mere formalities once a supervisor claims a conflict-of-interest, as then-Sup. Gavin Newsom sometimes did on votes involving landlord-tenant relations. But given that it takes nine of the 11 votes to remove Mirkarimi – with each recusal effectively being a vote in his favor – claims of a conflict will be carefully scrutinized, which Emblidge thinks is appropriate.

“The bar should be high for recusal because of the three-fourths requirement,” Emblidge told the Guardian, making clear that was his personal rather than legal opinion.

The City Attorney's Office strongly advised the supervisors earlier this year not to discuss the Mirkarimi case with anyone, and they have all heeded that advice and refused to discuss the case with reporters, adding to the drama surrounding a high-profile decision with huge potential long-term ramifications.

Unlike other big decisions, in which supervisors will publicly stake out positions before the vote, often making clear the political dynamics and swing votes, nobody really knows where any of the supervisors stand right now. It's widely believed that progressive Sups. John Avalos and David Campos – both of whom have unexpectedly easy paths to reelection in November – are the most likely votes for Mirkarimi, with just one more vote needed to reinstate him.

Olague will be in a tough spot politically, torn between supporting the mayor who appointed her and a district that Mirkarimi once represented, where opposition to his removal seems strongest. Ditto with Sup. Jane Kim, a fellow former Green long allied with Mirkarimi, but also someone who backed Lee last year and has ambitions to be the next board president.

This is also a board filled with Ivy League lawyers, and it's hard to say what aspect of this complex case will draw their focus. Will they side with those who say the decision is simply about showing zero tolerance for domestic violence, or will they share the concerns of Ethics Chair Benedict Hur, who calls this a potentially dangerous precedent that gives too much power to the mayor.

It's even possible that someone from the board's conservative bloc of Sups. Sean Elsbernd, Mark Farrell, and Carmen Chu might object to this costly and distracting move by government to go after one individual, making this more about limited government and deferring to voters rather than the fate of an individual for whom they have no particular fondness.

Until now, it's been difficult to read these tea leaves, but that might be about to change. Emblidge argues that the grounds for recusal are so narrow and restrictive that even if supervisors make public statements about their thoughts on the case, that wouldn't present a conflict-of-interest that would prevent them from voting on it, particularly now that they're actively reviewing the record.

So, are we about to start getting some hints from under the dome about how this is going to play out? We're listening and we'll let you know.

Comments

Not really "open to interpretation."

Posted by Troll II on Oct. 03, 2012 @ 5:55 pm

anything. She has always said her hubby.....grabbed her arm.Sometimes an arm grab is just an arm grab.

Posted by Guest on Oct. 06, 2012 @ 8:30 am

And of course because it's Mirkarimi, this particular arm grab was just an arm grab.

Posted by Hortencia on Oct. 06, 2012 @ 8:58 am

In the video, she indicated more than one bruising

Then, it was just the one bruising.

Then, it was really only her dumb self "pulling away" stupidly, and it's all her own fault, just being a dumb girl and all.

At this point, I doubt if she would even know the truth if it slapped her on the arm. oops.

Posted by Guest on Oct. 06, 2012 @ 9:25 am

She speaks English as a second language. Her speech has gotten much better than it was, but she still needed an interpreter for the EC hearings.

Ivory Madison, acting as her attorney, convinced Eliana that Ross deserved to have the system "worked" against him and told her that by looking disheveled and making a video, she could get custody of Theo in case of a divorce.

While the bruise was not faked, Eliana at worst can be said to have made ambiguous statements regarding it. Under oath she testified that "this is not the first time it is happening" referred not to the bruise but to the argument over her desire to take Theo for another long visit in Venzuela.

Ivory Madison acted as a Svengali with an agenda of her own to the great detriment to the Mirkarimi family and the city's people by giving ammunition to reactionary forces in government.

Posted by lillipubicans on Oct. 06, 2012 @ 6:19 pm

language" huh.

So you think eliana is smart enough to attract a "powerful man" and conspire with others to implicate him in crimes?

But isn't smart enough to speak English?

Her story has never changed from the video to now. whether you want to call that lying or inconsistency, I'll leave up to you. But she hasn't been 100% honest.

Posted by Guest on Oct. 06, 2012 @ 11:24 pm

Yes. The homophobic, heterophobic, and -- of course -- misanthropic reactionary components are also well known.

Posted by lillipublicans on Oct. 07, 2012 @ 1:11 am

And only foreigners can use that excuse. You made your racist bed; now lie on it.

Posted by Guest on Oct. 07, 2012 @ 9:38 am

An explanation for a misunderstanding, not a crime; as a racist anti-Mirkarimi hater such as yourself automatically attributes to anyone who doesn't have lilly-white skin and Anglo surname such as Eliana Lopez.

Reprehensible. Obvious. Dimwit.

Posted by lillipublicans on Oct. 07, 2012 @ 10:37 am

he grabbed her arm because she wanted to take their child back to Venezuela while she made another movie. She had just returned from two months with the child inVenezuela. They had a big fight. They both agree he grabbed her arm....no lying...no recanting..Eliana committed no crime. get it?

Posted by Guest on Oct. 07, 2012 @ 9:14 am

believed that she committed a crime. Conspiracy to defraud, perhaps?

Probably not perjury unless her most recent testimony involved lies, rather than just a matter of her changing her mind.

Posted by Guest on Oct. 07, 2012 @ 9:37 am

OK, I despise the whole Mirkarimi/Lopez legal team, but even I won't go so far as to say that Lopez hiring a lawyer means she thought she committed a crime. (I believe she did commit several torts, but that's different.)

Posted by Hortencia on Oct. 09, 2012 @ 10:32 am

I'm guessing the ratio of those who do just fine to those who are murdered is pretty high.

There is of course another difference here, conveniently glossed over. Unlike other spouses who "recant"... for example the spouse of a real abuser like Joanna Hayes-White... Eliana never turned to the police or asked for any intervention from the authorities in the first place. There was nothing to recant to begin with, unless you count something that she told a friend in confidence, which she was led to believe was protected under attorney-client privilege.

Posted by Greg on Oct. 02, 2012 @ 10:27 pm

The board of supes are to vote about the suspended Sheriff, not Gavin.

Focus

Posted by Guest on Oct. 02, 2012 @ 10:58 pm

needed to reconfirm Ross's banishment. Obviously if just 3 Supes recuses themselves, Ross would prevail.

If the quorum was reduced for each recusal, that would be fine. But as the rules stand, recusal helps Ross. Should be neutral.

Posted by Guest on Oct. 03, 2012 @ 4:45 am

Jason Grant Garza here ... maybe we can ask Mr. Emblidge regarding the MINISTRY of SUNSHINE/s OFFICIAL MISCONDUCT CHARGES before ETHICS ( see http://www.sfbos.org/index.aspx?page=11889 case # 11048 ) for the FOUR (4) supervisors FOUND GUILTY whether they should NOT only in GOOD FAITH and RIGHT CONDUCT recuse themselves as they were found GUILTY while in OFFICE before the ROSS (not in office) already plead ( DOUBLE JEOPARDY - POUND of FLESH) December 2011 incident?

That is if you would like for the DECISION to reflect NO "CONFLICT of INTEREST" since these supervisors can quite accurately state that under the current "INTERPRETATION" of OFFICIAL MISCONDUCT they too can be brought up on charges since the "OFFICIAL MISCONDUCT" findings by SUNSHINE has NOT been addressed at ETHICS. IT would be highly UNETHICAL if later they were found guilty as charged by SUNSHINE and proceeded.

Comments, questions ... well, why is NO ONE looking into this? Yes, the GAME continues.

Also Mr. Emblidge ... now that the STANDARDS and RULES at ETHICS has changed ... when will you re-open ALL the SUNSHINE cases that dismissed and APPLY the same STANDARDS and RULES ... I await with my NURSE RATCH case ... see http://www.myownprivateguantanamo.com ... here too was OFFICIAL MISCONDUCT.

Posted by Jason Grant Garza on Oct. 03, 2012 @ 6:17 am

No matter which side you're on, the fact of the matter is that this case has almost nothing to do with "domestic violence."

Think about it: If you swap out Ross Mirkarimi with mob boss Gary Delagnes (president of SF Police Assn.), would the "case" have reached this frenzied level of convolution? Would the "case" be bandied about for public scrutiny/contestation? Would there be any case at all? Or would the incident, like so many other issues of supreme importance to city residents, taxpayers, regulators and rights advocates, be swept under SFPD's colossal rug of secrets? What if it were Ed Lee, himself? Same thing--as long as Lee's dutifully upholding the department's plans, agenda, orders, INTERESTS, he, too, would be safeguarded against "bad publicity" (media/public awareness of the truth).

And if either of the above incidents was, God forbid, Assangefied (read: truth 'leaked' to public), almost certainly both Lee and SFPD would defend against any calls for action by clearly pointing out that the event in question occurred BEFORE they/he assumed their respective civic/"civil" position(s). And that would be the end of it. Period.

No, sadly, this administrative witch hunt serves no purpose other than the obvious--a coordinated, corrupt attempt to oust the very real threat that progressive, intelligent, ethical and successful change-effector (in law, and otherwise) that Mr. Mirkarimi represents.

Who do you people think really runs this fine city?

If your answer is anything other than a connected ex-cop-turned-mob-boss with a powerful, crooked, also-connected brother and friends in very high places, I feel sorry for you.

Posted by Former SFPD Victim on Oct. 03, 2012 @ 4:39 pm

and some random guy no one has ever heard of. Thanks for breaking it down so clearly for us.

Posted by Troll II on Oct. 03, 2012 @ 6:37 pm

"The City Attorney's Office strongly advised the supervisors earlier this year not to discuss the Mirkarimi case with anyone, and they have all heeded that advice and refused to discuss the case with reporters..."

So the mayor's lawyer tells the supervisors to shut up and they obey! This is leadership? These people are remarkably lame.

Posted by Rob Anderson on Oct. 04, 2012 @ 9:37 am

In the Examiner it was reported that Board of Supervisor's counsel -- also by some ironic twist of fate also Ethics Commission counsel! -- Scott Emblidge thinks that recusal in this case is only permitted in limited circumstances such as a "clear conflict of interest" or a situation that could deny someone due process of law.

Supervisors who are absent and who have not been excused "shall be sent for by the President of the Board and brought to the Chamber by the Sergeant-at-Arms or by special messengers appointed for the purpose,” he wrote.

So on one hand, Emblidge has stated that the supervisors *aren't* "jurors" and need not avoid discussion of this case, but now he's claiming they can be rounded up by the sheriff's department as though they are jurors. Is this not proof of the case being nakedly political?

The point is not to judge whether Ross Mirkarimi's conduct is official misconduct -- and according to the Court of Appeals ruling in Mazzola, it certainly is not -- the point is to give right wing ideologues and their "moderate" fellow travellers ammunition against progressive leaders.

Based on this excerpt from the city charter below, the only way I can see this scam being pulled off with the slightest appearance of legitimacy is that eight supervisors conspire to have only three show up for the meeting, command the Master at Arms -- or "special messengers," which I guess means cops -- to round up the three intended victims so they can be on record voting; then the other five can show up just in the nick of time.

Farfetched? This whole corrupt side show is far fetched.

"SEC. 2.104. QUORUM.
(a) The presence of a majority of the members of the Board of Supervisors at a regular or special meeting shall constitute a quorum for the transaction of business... In the absence of a quorum, a smaller number of members may compel the attendance of absent members in the manner and under the penalties established by the Board of Supervisors."

Posted by lillipubicans on Oct. 06, 2012 @ 6:08 pm

Emblidge was approved as counsel 11-0. That means that Campos, Avalos and Mar supported him.

He didn't become a 'Lee Bagman' until he made a decision that you didn't approve of.

Because anyone you don't agree with must be corrupt and involved in the great conspiracy to get Mirkarimi.

The rest of your post about the 8 and the 3 and the 5 is absolutely incoherent and, in fact, somewhat troubling.

Posted by Guest on Oct. 06, 2012 @ 10:06 pm

I find that Emblidge was proposed by the City Attorney's office "out of abundance of caution" to the supes on April 17 and board Chairman Chiu announced that the board would be voting on the matter the following week.

It was reported by the Chronicle's Wildermuth that day that the selection had been made the week previous.

I haven't been able to locate reference to the vote to approve Emblidge in the meeting notes for the 24th -- perhaps that's because they are so poorly done?

In any case, even if your statement that the board approved Eldridge 11-0 is true -- which, since you are an anonymous anti-Mirkarimi hater I expect you to prove, by the way -- it matters not: I make my judgement based on my understanding of the Charter.

Where does Emblidge derive his notion of the ability for a Master at Arms to command the presence of any supervisors who might choose to not attend the Mirkarimi lynching?

Just bypass the ad hominems and provide an answer if you please.

Thanks.

Posted by lillipublicans on Oct. 06, 2012 @ 11:53 pm

and the question is WHY? Willie Brown knows the answer.

Posted by Guest on Oct. 07, 2012 @ 9:17 am

So I ask, for the good of whom?

I have another questions for the free lawyer and former City Attorney's office who was lined up for the job "out of an abundance of caution" by City Attorney Dennis Herrera, and who surprised Paul Renne Ethics Commissioner when he revealed that he was also representing the BOS:

Wherefrom did you derive the notion that the Ethics Commission was charged by the city charter to only determine whether Ross Mirkarimi had committed "official misconduct," and *not* whether it meritted removal from office. My reading of the charter language 2003 ballot pamphlet strongly suggests that was mistaken.

I've already asked how Emblidge figures that the city charter allows the board president to round up anyone who decides to skip the Mirkarimi lynching party. A quorum (2.104) is a majority of supes for regular or special meetings.

Posted by lillipublicans on Oct. 07, 2012 @ 9:48 am

translates as for the public good", in practice it's a euphemism for any advocate who works for free, regardless of the underlying issue.

The case could reasonably descrived as "The City versus Ross" in much the same way as Ross's criminal counts were "The People versus Ross". He's an individual being charged by the people and their agencies, in both cases.

Anyway, the cost issue is moot since the City has funds for pursuing ethical charges. The issue is whether an official charged with protecting people from criminals should or should not become one? That's a reasonable matter to determine.

Posted by Guest on Oct. 07, 2012 @ 10:20 am

Why didn't you answer my questions?

Posted by lillipublicans on Oct. 07, 2012 @ 10:29 am