Supervisors reinstate Mirkarimi, rejecting Lee's interpretation of official misconduct

Ross Mirkarimi, wife Eliana Lopez, and their son during a rally before the historic hearing.
Luke Thomas

The Board of Supervisors has voted to reinstate Sheriff Ross Mirkarimi and reject the official misconduct charges that Mayor Ed Lee brought against Mirkarimi for grabbing and bruising his wife’s arm during a New Year’s Eve argument, for now ending an ugly saga that has polarized San Franciscans.

The vote was 7-4, two votes shy of the nine needing to sustain the charges and remove Mirkarimi, who now resumes the position voters elected him to in November with back pay going back to March when Lee suspended him. Sups. Christina Olague, David Campos, John Avalos, and Jane Kim voted in Mirkarimi’s favor, condemning the domestic violence incident but saying the it didn’t meet what is and should be a high and clear standard for overruling the will of voters, a concern also voiced by Sup. Mark Farrell. 

“I do take this job seriously, that we are public policy makers,” said Kim, a lawyer who emphasized their duty to set clear standards for officials during these unprecedented proceedings rather than being swayed by emotional responses to conduct by Mirkarimi that she called “incredibly egregious.”

But for most of the supervisors, that was enough. Sup. Eric Mar, who is in the middle of difficult reelection campaign against the more conservative and well-financed David Lee, said he thought is was important to have “zero tolerance” for domestic violence and his vote was “in the service of justice and a belief it will combat domestic violence.”

Earlier in the hearing, Kim had led the questioning of Deputy City Attorney Sherri Kaiser, whose broad interpretation of official misconduct standards and inability to set clear guidelines troubled Kim, just as it had earlier to Ethics Commission Chair Benedict Hur, the sole vote on that body against removal after it conducted six months worth of hearings.

“I agree with Chairman Hur, I think we need to take the most narrow view of official misconduct,” Kim said, echoing a point that had also been made by Campos, who quoted Hur’s comment from the Aug. 16 hearing where the commission voted 4-1 to recommend removal: “I have a lot of concern about where you draw the line if you don’t relate this to official duties.”

Farrell also shared that concern, which he raised in questioning Kaiser and during the final board deliberations almost seven grueling hours later. 

“I worry a great deal about the potential for abuse in this charter section,” Farrell said, warning this and future mayors to use great caution and restraint before bringing official misconduct charges. Yet he still found that the “totality of the circumstances” warranted removal because Mirkarimi had compromised his ability to be the top law enforcement officer.

Each supervisor expressed what a difficult and joyless decision this was, and even those who supported Mirkarimi strongly condemned his actions and the efforts by some of his supporters to minimize the seriousness of his actions and the need for him to change.

“I have tremendous mixed feelings about Ross Mirkarimi,” Avalos said, noting his many proud progressive accomplishments but adding, “I’ve always seen Ross as someone who has deep flaws….[This saga] offers a chance for personal transformation and I think that’s something Ross really needs to do.”

Mirkarimi seems humbled by the hearing, and the stinging criticism of his former colleagues and his one-time allies in the domestic violence community, and he pledged to work on “regaining their trust” as he tries to embody the city’s long-held value on redemption.

“I appreciate all the comments of by the Board of Supervisors and I hear the message. The next step is mending fences and moving forward,” Mirkarimi said. Later, he told reporters, “We’re absorbing all the comments that were made by the Board of Supervisors. They are my former colleagues and I take it very seriously.”

That need to heal the deep and emotional divide between San Franciscans who see this case in starkly different ways – which was on vivid display during the hours of public testimony – was sounded by several supervisors. “We will need to come together as a city on this,” Board President David Chiu said.

Most of those who spoke during the nearly four hours in public comments favored Mirkarimi and condemned the efforts to remove him as politically motivated, overly judgmental, and setting a dangerous precedent rather than resorting to usual method for removing politicians after a scandal: recall elections.

"If anything happens to the man, it should come back to me to make that decision. Don't do their dirty work for them," one commenter said.

The most politically significant person to speak during public comment was former Mayor Art Agnos, who said he was a friend and supporter of Mirkarimi, but he was more concerned with the scary implications of this decision. "I respectfully urge that this Board protect all elected officials from the dangerous discretion used in this case and reinstate Sheriff Ross Mirkarimi."

Most of those who spoke against Mirkarimi were domestic violence advocates, who were adamant that Mirkarimi be removed, casting it as a litmus test for whether the city takes their issue seriously. "This is a disciplinary proceeding, it is not election stealing," said Beverly Upton, head of the Domestic Violence Consortium, who has lead the campaign to oust Mirkarimi since the incident was made public.

But the two sides seemed to be speaking past one another, each expressing righteous indignation that people didn't see the issue like they did, indicating how polarizing these long-lingering proceedings have become and how difficult to heal that rift may be.

“It made my stomach turn to hear some of the comments that were made,” Sup. Carmen Chu said, condemning the actions of Mirkarimi supporters in vocally or visibly supporting one another. “That was wrong, this is not a joyous event.”

Yet Farrell said he was also concerned that Mirkarimi’s opponents would go after supervisors who made a principled stand against removing him. “I hope no one takes pot shots at the people who voted against this,” he said.

That principled stand – condemning Mirkarimi’s behavior but having a high standard for removing an elected official – was a trail blazed by Hur, who opened the hearing by presenting the Ethics Commission’s findings and a decision that he was the sole vote against. He noted the "challenge of my presentation" but made careful efforts to accurately represent the views of the commission majority.

Yet he ended up using almost half of his time at the podium -- his allotted 10 minutes plus a few extra minutes to respond to questions from supervisors -- to stress the danger of broadly interpreting the city's official misconduct language and not requiring direct connection to an official's duties.

"Public policy suggests we should interpret this more narrowly than proposed by the majority," Hur said, later adding that his colleagues on the commission "did not provide a clear basis for how official misconduct is delineated."

When Sup. Malia Cohen asked what he meant by the "public policy" interest at stake here, he replied, "The need to have policies that are clear...It does benefit the public when the laws are clear." (Cohen later voted to remove Mirkarimi, stating with little explanation, “I believe the reading of the charter is narrow and appropriately applied in this case.”)

The issue of what qualifies as official misconduct -- and whether there is a predictable way for officials to know where that line is drawn, or whether it's entirely up to the discretion of mayors -- was also highlighted by Kaiser’s long presentation, but probably not in the way she intended.

Kaiser appealed to people's sense of outrage about the initial arm-grab and subsequent guilty plea -- claiming Mirkarimi "attacked his wife" and "this conduct was serious!" -- and seemed to think that was an adequate test of whether bad behavior by an elected official warrants his unilateral removal from office.

Kaiser took issue with Hur's contention that a lack of clear, limiting standards gives too much power to future mayors to remove their political enemies for minor incidents.

"The mayor certainly does not agree with Hur's argument for a bright line rule," Kaiser said. She mocked the notion that mayors would abuse this expanded power. "The check on that is the Ethics Commission, and the check on that is this body." Kaiser's position was that the statute should be read as broadly as possible and that the process should be trusted to protect against political manipulations.

But Chiu also took issue with that standard, saying "having clarity in the law seems to make sense" and asking Kaiser how officials can know what standards they're expected to meet.

"I don't agree and I didn't mean to convey the standard is murky," Kaiser replied, but as she tried to elaborate, her standard began to seem ever murkier.

"It depends on the circumstance," Kaiser said. "But that doesn't make it too vague to apply. It makes it more nimble."

A nimble standard might suit mayors just fine, but the idea seemed to bother the supervisors, even Farrell, who told Kaiser that her position "seems to me very contradictory."

At the end of the hearing, Campos returned to Kaiser’s “nimble” comment as a reason for rejecting that argument and Lee’s charges: “I don’t think the analysis made me comfort. She said the interpretation was nimble, but I don’t know the difference between nimble and vague, and I think they are one in the same.”

"Most cases will be clear, but there are decisions on the periphery," Kaiser told Farrell during the earlier questioning, not making it clear which category she'd put the Mirkarimi case into.

Kim was the next to try to pin Kaiser down on whether there's a discernible standard for the city to apply to this and future cases, saying she'd like to see a "bright line rule or a test." Kaiser said that it depends on the office, but that a law enforcement officer shouldn't commit a crime.

"Then any misdemeanor the sheriff pleads to is official misconduct, is that right?" Kim asked.

No, she said, the conduct must be while someone is in office -- seemingly contradicting her earlier point – and found to be so by the board and commission. But then she said, "It is true that any misdemeanor relates to the duties of a sheriff."

Kim persisted: "This is where I get stuck. When does it fall below the standard of decency?"

"The charter doesn't answer that question. It's a case-by-case determination," Kaiser said.

"What's to guide us in the future?" Kim asked.

But again, there was no clear answer, it's simply for mayors to decide. "It is a discretionary decision," Kaiser said.

Kim, a lawyer, questioned whether the stance by Kaiser and Lee could lead the courts to strike down the city's untested statute. "Does that open us up to the vagueness issue, which would make the clause unconstitutional?" Kim asked.

But Kaiser said San Francisco voters wanted to give the mayor wide power to interpret misconduct when they approved the broad new official misconduct language in 1995, part of a complete overhaul of the City Charter.

"Voters made a considered choice to put suspend and remove procedures in the charter," she said, trying to counter the argument that recall elections should be used to remove elected officials. "These suspension and removal procedure is more nimble. It's less expensive than a recall."

Yet with a final price tag expected to be in the millions of dollars and proceedings lasting seven months, it’s debatable whether this process was really cheaper and more nimble.

Mirkarimi attorney David Waggoner began his presentation by saying, "There's no question that on Dec. 31, 2011, Ross Mirkarimi made a terrible mistake."

But it was a mistake that Mirkarimi admitted to, accepted the criminal punishment that followed his guilty plea, endured a forced six-month separation from his family, had his job and salary taken from him, was the target of a media and political campaigns that have deeply damaged his reputation, "his entire life's work was destroyed almost in an instant." All for pleading to a low-level misdemeanor.

"At the end of the day, the punishment does not fit the crime," Waggoner said.

He noted that just three elected officials have been removed for official misconduct in the city's history, each time for serious felonies. But now, it's being applied to a misdemeanor with arguments that broaden a mayor's ability to remove political adversaries.

"You must decide whether to uphold or overturn the will of the voters," Waggoner told the supervisors.

He even took a swipe at the domestic violence advocates who have led the campaign to remove Mirkarimi: "Ironically, the very advocates who should be defending Eliana Lopez have been attacking her."

Taking over from Waggoner, Mirkarimi's other attorney, Shepard Kopp, said Mirkarimi had no official duties before taking the oath of office, and the charter makes clear there needs to be connection. "It says misconduct has to occur while an official is in office."

Kopp also brought the focus back to the precedent in this historic case. "The other problem with the mayor's position is it doesn't give you any guidance or future mayors any guidance," Kopp said, later adding, "To follow the mayor's position is not workable policy and it doesn't have any support under the law."

Supervisors questioned Kopp and Waggoner, but it didn't seem to reveal any new insights, simply reinforcing their points that official misconduct should be a rarely used tool applied only to serious crimes.

In her final five-minute final rebuttal, rather than letting her co-counsel Peter Keith speak or trying to mitigate some of the damage from her earlier testimony, Kaiser seemed to double-down on her tactic of using emotional arguments rather than addressing legal standards for removal.

She alleged Mirkarimi's team offered "a theory that domestic violence doesn't matter if you're sheriff," prompting an audible negative reaction from the crowd that Chiu gaveled down. That reaction was even louder and more outraged when Kaiser implied Mirkarimi "threatens the life of a family member."

Those sorts of characterizations fed much of the crowd's stated belief that this case was a "political witchhunt" designed to destroy a progressive leader, and the opposition expressed to some domestic violence advocates testimony could be used against the larger progressive community.

But Agnos, who sat in the audience throughout the long hearing, told us the frustration was understandable. “The crowd, after nine months of agony, expressed a lot of emotions, and that is inherent in mass crowds,” he said. “They didn’t mean ill will to the domestic violence community. There was no malevolent intent there.”

Supervisors who voted to reinstate Mirkarimi said they want to make clear their commitment to combating domestic violence. “I worry that this case has set us back because of the tensions around how we responded,” Avalos said.

“I think it’s important that no matter how we feel about this that we come together as a city,” Campos said. “People on both sides have legitimate viewpoints on this issue.”


And I know that many others would too - it will be a broad-based coalition of moderates, LE workers, DV activists and ordinary people who don't believe that a convicted wife-abuser should be sheriff.

Ross will go - we're just quibbling over when.

Posted by Guest on Oct. 10, 2012 @ 9:13 am

So why are you wasting time posting and whining on SFBG. Get out there and go to work (and be sure to keep track of your hours. It'll take the hurt off your sore loss!)

Posted by Apthorp on Oct. 10, 2012 @ 10:02 am
Posted by Guest on Oct. 10, 2012 @ 10:29 am

in the circular file where it almost certainly belongs.

Posted by lillipublicans on Oct. 10, 2012 @ 10:44 am

Imagine a meeting where Ross is trying to persuade the sheriff's to do something new.

They respond: "don't you have to meet with your probation officer?

End of

Posted by Guest on Oct. 10, 2012 @ 10:59 am

in the circular file where it almost certainly belongs.

Posted by lillipublicans on Oct. 10, 2012 @ 10:44 am

Feel free to write in the comments section your daily signature totals. We await your reports.

Posted by Bob In Portland on Oct. 11, 2012 @ 10:21 am

it may be too difficult for you to understand...but it wasn't a "technicality" that saved the was the law. see briefs in case..hard work..get going.

Posted by Guest on Oct. 10, 2012 @ 9:20 am

Yes, technicalities. Like when his lawyers are saying "Sure, he did something awful but he hadn't been sworn in yet".

Don't think that voters are going to make the same distinction.

If 8 Washington cost $180K for 30K sigs for an issue that nobody cared about then the DV advocates should be ashamed if they don't ante up a similar amount. And their non-paid gatherers will be more plentiful and more energetic than the women out in front of the Safeway.

BTW, if it was really 'the law' that saved him then he would have gotten more than 4 votes on the BOS and 1 on ethics.

Posted by Troll on Oct. 10, 2012 @ 9:42 am

that all the leftie cronies here would be baying for his firing. Non issue.

Posted by Guest on Oct. 10, 2012 @ 10:00 am

In fact, the reason Mirkarimi's lawyers brought up the fact that he was not yet in office was because that line of reasoning to dismiss Lee's case was *directly* addressed by the Mazzola case and precedent setting law.

That Waggoner et al. made that argument has no bearing on the fact that they *also* specifically argued that the Charter requires misconduct to *also* be in relation to one's official duties.

See? Lee's connivance was wrong an several levels.

Posted by lillipublicans on Oct. 10, 2012 @ 10:41 am

a big difference as to when Ross's wife beating becomes "relevant"?

Posted by Guest on Oct. 10, 2012 @ 10:57 am

Someone needs to show you the difference between a bruise from an arm-grab and a beating.

Posted by tagletigre on Oct. 10, 2012 @ 11:30 am

Once again, you shift the discussion from when the incident happened to how serious it was.

Posted by Hortencia on Oct. 10, 2012 @ 11:53 am

the relevance to the city charter and official misconduct was the issue. You'll never figure it out.

Posted by Guest on Oct. 10, 2012 @ 3:24 pm

lilli you moron that's exactly my point. Do you really think that the average recall voter is going to decide one way or the other because of the Mazzola case? It isn't a case law precedent for them.

In the voter's lives if you get caught doing something despicable you don't get a free pass because you did it a few days before a deadline.

And do you know that in a recall Mirkarimi will have to get more than 4 out of every 11 votes?

There's a chance that you might be getting stupider...have you checked with your minders yet today?

Posted by Troll on Oct. 10, 2012 @ 12:12 pm

Most of the folks at that hearing probably thought the attorneys meant Mazola margarine.

Posted by Hortencia on Oct. 10, 2012 @ 1:57 pm

You two are oh-so-much smarter than average voters.

Sure. Voters can't even tie their own shoes, let alone gauge whether a completely incompetent legal ploy is cynically being used -- no matter the cost to the public's coffers! -- to further the personal political agenda of the mayor.

Why do they even allow voting any more?

Posted by lillipublicans on Oct. 11, 2012 @ 8:10 am

means that one must be an official to do the misconduct. When you have not yet taken the office, you do not yet have the powers or the responsilities of the office. that's not a technicality, that's just the common sense truth.

Posted by Guest on Oct. 10, 2012 @ 10:33 am

Every time this argument comes up, I really have to ask if it covers all crime. If he'd injured someone in a DUI accident, would it have counted? How about murder?

Posted by Hortencia on Oct. 11, 2012 @ 11:19 am

Ross as a are full of poo.

Posted by Guest on Oct. 11, 2012 @ 11:44 am

I never said he was a murderer, just a batterer.

Posted by Hortencia on Oct. 11, 2012 @ 10:43 pm

However, the law involved here was the issue. YOu apparently think it's better for the city to spend multiple millions fighting a battle they cannot win..based on the city charter.

Mr.Mirkarimi's plea deal was for a misdemeanor, no moral turpitude, no intent to harm, turning the van around on the way to the restaurant charge.

If the case was so strong, ask why the DA was so willing to take that plea.

The prosecution of this man was largely political and it failed., The family was not destroyed. Ross paid a huge price for a simple arm grab. Sometimes an arm grab,is just an arm grab.

The DV advocates in this particular matter(la casa) made lots of money pimping the concept that women are too know whether they are victims. This view is about making money for non-profits who pay big salaries to their leaders, by infantilizing women. It's a good thing they failed. Other domestic violence victim's advocates were told to shut up..when they raised theproportionality argument.That is wrong.I wonder why you didn't go out, when the timing was perfect and start your own recall effort. There is an election coming up very soon. It could have been on the ballot, but you were sure that the political lynching would succeed , that you weren't willing to do the hard work . Ross Mirkarimi has been overly-punished, and chastened. He returns to his rightful job, strengthened and will, I predict, be a great sheriff and beyond.
good day

Posted by Guest on Oct. 10, 2012 @ 9:18 am

I think you got it wrong.. It is the MAYOR who should be recalled! He purgered himself on the stand for godsake!

Posted by bluepearlgirl on Oct. 10, 2012 @ 1:11 pm

Did you also scream for Clinton to be impeached after he committed perjury?

Posted by Guest on Oct. 10, 2012 @ 2:05 pm

google impeachment

did you think he wasn't?

Posted by Guest on Oct. 10, 2012 @ 3:24 pm

Any other questions?

Posted by Guest on Oct. 10, 2012 @ 3:36 pm

Huge difference.

San Francisco needs an ethics law which can ensnare a corrupt mayor, not just his political enemies. Reform the ethics code!

Posted by lillipublicans on Oct. 11, 2012 @ 10:39 am
Posted by Guest on Oct. 12, 2012 @ 3:01 pm

That's hardly a mandate to stay in office and, in any ordinary voting system, Ross would be dead meat.

The sheriffs will be hard for Ross to manage as they obviously don't want him there and can easily scupper his ideas. I expect Ross to be a lame duck until the inevitable recall election removes him.

Any decent pol would have resigned long ago. He's verminous, abusive scum and he and his heartless hispanic hussy should leave town while they have a shred of dignity left.

Posted by Guest on Oct. 10, 2012 @ 8:41 am

You don't like progressive politicians. You hoped that Lee could remove him. It didn't work. You can spend your weekends collecting signatures in front of Macy's. Good luck getting to 50,000.

Posted by Bob In Portland on Oct. 10, 2012 @ 9:00 am

Let me guess - you'd fight just as hard to reinstate a republican sheriff who got conviced of abusing his wife?

You're a liar.

Posted by Guest on Oct. 10, 2012 @ 9:15 am

Instead, you are busy with ad hominems and baseless imputations of hypocrisy.

Nobody from the left has claimed they "fight just as hard" to reinstate a republican sheriff. We almost certainly wouldn't; just another disgusting straw man argument from the anti-Mirkarimi haters.

As for whether we'd have cheered this abuse of power and twisting of the meaning of the city charter if the tables were turned, I am confindent that almost universally that is false. Especially after it came to light that a family was being attacked in doing so.

Know this: the reason that people on the left are on the left is we care more about people than money.

Good day.

Posted by lillipublicans on Oct. 10, 2012 @ 10:31 am
Posted by Guest on Oct. 10, 2012 @ 10:55 am

However, if the exact same fact circumstances existed I would support the Sheriff, whatever his political positions.

Posted by Bob In Portland on Oct. 11, 2012 @ 10:26 am

The clear bright-line difference between anti-Mirkarimi haters and his supporters here is that if the tables were reversed, we'd not be spreading lies and other rhetoric filfth in support of the coup.

We'd not cheer on the breaking of a family, and that fact actually goes to the underlying falseness of the question asked: the situation could not be reversed because only corporatists can act with such inhumanity to their fellows.

Posted by lillipublicans on Oct. 12, 2012 @ 5:02 am

Good luck with that. Hope they stick by you in the future because you just lost the politically-involved women who would have helped you move up.

Olague will be lucky to hold her seat and, really, supe's as high as she'll go anyhow. She's a joke and I assume she got something in barter that she believes is critical to her campaign. But, "hey man", maybe not.

But you Jane had some people looking. And now you pissed it away.

Posted by Guest on Oct. 10, 2012 @ 9:51 am

Twitter tax deal. I don't like her vote for DV here but I'll give her a pass because overall she gets the future of this city, which isn't as an island of big government entitlement. And, let's face it, after Daly it's not hard to look good.

Thank God we didn't get the lying, conniving Horrorshow that is Debra Walker.

Posted by Guest on Oct. 10, 2012 @ 10:04 am

Ron Conway the billionaire Republican who bought the democratic party aka Twitter investor gave Ed Lee's "im too legit to quit being corrupt" IEC $600,000 and Enrique "I can do the Macarena" Pearce worked for Ed and Jane good to hear your loving "her view" of "the future" of the city to the new vision corporate corruption replacing "government entitlement" sounds a little like the corrupt pampered rich over the flotsam and jetsam (oh if only they could write beat poetry) they might have a place here!

Posted by thatsthewayitis on Oct. 10, 2012 @ 7:47 pm

that letting the mayor get away with a political lynching, in this instance , would have "pissed away" even more millions of taxpayer dollars.

Posted by Guest on Oct. 10, 2012 @ 10:34 am

It's a great victory for wife-beaters everywhere. You and Bruisey Gonzalez have much to be proud of.

Posted by Chromefields on Oct. 10, 2012 @ 10:03 am

ross didn't beat anyone...except rose pak, willie brown,and ed lee!

Posted by Guest on Oct. 10, 2012 @ 10:37 am
Posted by Guest on Oct. 10, 2012 @ 10:53 am

That's it in a nutshell, Guest

Posted by Barry Eisenberg on Oct. 10, 2012 @ 12:26 pm

What's the story on that? Do tell

Posted by Guest on Oct. 10, 2012 @ 3:40 pm

It's just my pet name for Eliana. Hopefully, Ross's pyrrhic victory will make her consider returning to the donkey show where they met.

Posted by Chromefields on Oct. 11, 2012 @ 7:00 am

Your comments show your hatred and disdain for Hispanics.

Posted by Bob In Portland on Oct. 11, 2012 @ 10:29 am
Posted by Guest on Oct. 11, 2012 @ 10:58 am

Quick, Bob, work in a reference to Hitler before someone beats you to it! (Also, my Puerto Rican girlfriend was most amused by your comment.)

Posted by Chromefields on Oct. 11, 2012 @ 12:35 pm

... and, yes, there has been strong racist, sexist, homophobic, and even -- to a lesser degree -- heterophobic components to the anti-Mirkarimi hater bandwagon.

Posted by lillipublicans on Oct. 12, 2012 @ 5:23 am