English
ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 (Whereupon, the appearances of all parties
2 having been duly noted for the record, the meeting
3 resumed at 1:05 o'clock p.m.)
4 ---oOo---
5 COMMISSIONER HUR: Good afternoon. Welcome to
6 the afternoon session of our meeting.
7 Again, I want to reiterate, in light of the
8 fact that we're in testimony, we really do need silence
9 in the audience.
10 Sheriffs, no need to wait for my direction. If
11 you see someone who makes an outburst, please remove
12 them.
13 Thank you.
14 Next up we have Mayor Ed Lee.
15 Is Mr. Lee available?
16 (Mayor Edwin Lee entered the meeting room.)
17 COMMISSIONER HUR: Good afternoon, Mr. Lee.
18 Please take the witness stand.
19 Would the court reporter please swear in the
20 witness.
21 ---oOo---
22 MAYOR EDWIN M. LEE,
23 having been first duly sworn by the court reporter
24 testified as follows:
25 ---oOo---
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1 COMMISSIONER HUR: Mr. Kopp, please proceed.
2 ---oOo---
3 CROSS-EXAMINATION BY MR. KOPP
4 MR. KOPP: Thank you.
5 Q. Good afternoon, Mayor Lee.
6 A. Good afternoon.
7 Q. My name's Shepard Kopp, and along with David
8 Waggoner, I represent Sheriff Ross Mirkarimi in these
9 proceedings.
10 Now, how did you become mayor, sir?
11 MS. KAISER: Objection; relevance.
12 COMMISSIONER HUR: Overruled.
13 THE WITNESS: I became mayor of San Francisco
14 both in a capacity of being appointed in the year 2011,
15 and then by election of the voters in November of 2011.
16 MR. KOPP: Q. And prior to becoming the
17 mayor, you were city administrator; is that correct?
18 A. Yes.
19 Q. And you attended law school, correct?
20 A. Yes.
21 Q. And did you practice as a lawyer for some time?
22 A. Yes, I did.
23 Q. For how long?
24 A. Approximately 12 years.
25 Q. Okay. Now, you -- when was the first time you
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1 started considering the concept of official misconduct
2 under the San Francisco Charter with relation to these
3 proceedings?
4 A. Can you explain what you mean by "consider"?
5 Q. Sure.
6 Well, prior to Sheriff Mirkarimi being charged
7 with criminal offenses, had you ever thought about the
8 term "official misconduct" as it exists in the
9 San Francisco Charter?
10 A. Not specifically.
11 Q. Okay. And do you have a written policy about
12 what is and what is not official misconduct?
13 A. No, I do not.
14 Q. And it's been argued that the mayor's decision
15 to attempt to remove an elected official for official
16 misconduct is purely discretionary.
17 Do you agree with that?
18 A. I believe that it is a duty that's imposed upon
19 me as the mayor through the Charter --
20 Q. Okay.
21 A. -- San Francisco Charter.
22 Q. And -- but you as the mayor have the discretion
23 to decide whether you are going to attempt to remove
24 someone, an elected official, for official misconduct or
25 not, correct?
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1 A. Yes.
2 Q. Okay. And is it your position that every
3 public official who is convicted of a criminal offense is
4 guilty of official misconduct?
5 A. I think it is a case-by-case basis.
6 Q. So you would agree with me, then, that merely
7 being convicted of a crime does not constitute official
8 misconduct?
9 A. I believe in this case it does.
10 Q. Well, that's not my question.
11 My question is: Does the mere fact that an
12 elected official that's been convicted of a crime, does
13 that in and of itself constitute official misconduct?
14 A. I believe I've answered that. It's a
15 case-by-case basis.
16 Q. So there are some criminal convictions that you
17 would not deem to be official misconduct?
18 A. Possibly.
19 Q. Okay. Like what?
20 A. I don't know, because I've never been
21 confronted with this before.
22 Q. Well, would a conviction for driving under the
23 influence be official misconduct?
24 MS. KAISER: Objection. Requires speculation
;
25 partial hypothetical.
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1 COMMISSIONER HUR: Overruled.
2 THE WITNESS: Potentially.
3 MR. KOPP: Q. Okay. And you're aware, aren't
4 you, that there are many members of the San Francisco
5 Sheriff's Department that have suffered criminal
6 convictions?
7 MS. KAISER: Objection. Lacks foundation.
8 COMMISSIONER HUR: If you know, Mr. Mayor.
9 THE WITNESS: I don't know.
10 MR. KOPP: Q. Okay. If you knew, would that
11 affect your opinion about whether or not criminal
12 convictions invariably mean that's official misconduct?
13 MS. KAISER: Objection. Misstates prior
14 testimony.
15 COMMISSIONER HUR: Misstates prior testimony
16 objection is overruled.
17 THE WITNESS: Maybe.
18 MR. KOPP: Q. Okay. And are you aware that
19 former Sheriff -- well, strike that.
20 You know Mike Hennessey, right?
21 A. The former sheriff of San Francisco,
22 Mike Hennessey, I know, yes.
23 Q. Yes.
24 And you're aware, aren't you, that he hired
25 people to work within the sheriff's department that had
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1 criminal records?
2 A. I believe so.
3 Q. And as a matter of fact, one who is third in
4 command was a gentleman who had actually been in state
5 prison for a manslaughter conviction, are you aware of
6 that?
7 A. No, I'm not.
8 Q. Okay. Do you believe that in San Francisco the
9 determination of what is official misconduct may be
10 governed by a different standard than other
11 jurisdictions?
12 A. I only know of the Charter that I'm confronted
13 with and the decision that I made.
14 Q. Okay. Now, before you made the decision to
15 file written charges of official misconduct against
16 Sheriff Mirkarimi, did you consult with people about that
17 decision?
18 A. I did consult with people.
19 Q. Okay.
20 A. I consulted with our city attorney.
21 Q. Okay. I don't want to ask you about any
22 conversations that would be protected by the
23 attorney-client privilege, but can you tell me who the
24 other people were that you consulted were?
25 MS. KAISER: We're going to object on the basis
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1 of the deliberative process privilege in response to this
2 particular line of questioning to identify individuals.
3 COMMISSIONER HUR: I'll hear argument on it.
4 MS. KAISER: The deliberative process privilege
5 exists in order to protect the decision-making process of
6 higher policy-making officials who need the freedom to
7 consult with the people who they deem relevant, and who
8 also need to offer to people, who wish to come to them,
9 the opportunity to do so without having their names
10 disclosed in court.
11 There is a case directly on point. Times
12 Mirror is a California Supreme Court case, and it's about
13 whether or not the governor had to disclose the names of
14 the people he was meeting with in his calendar, and the
15 California Supreme Court said no for these reasons.
16 COMMISSIONER HUR: Mr. Kopp.
17 MR. KOPP: Well, my response would be that the
18 mayor himself has put that in issue in his declaration in
19 which he stated at Line 7 on Page 2, "I consulted with
20 others."
21 There's no need for him to put that in if it
22 was not relevant, and -- so I consider that to be a
23 waiver.
24 Moreover, I'd like to ask whether or not he's
25 had conversations with any members of the Board of
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1 Supervisors about whether or not he should file these
2 charges, because I think that would be highly relevant
3 evidence about whether there was an attempt to somehow
4 influence the very body that is going to make the
5 ultimate decision on this case.
6 COMMISSIONER HUR: What if we allow you to ask
7 that question?
8 MR. KOPP: Then I'll ask it.
9 COMMISSIONER HUR: Right. But will you
10 withdraw your prior one?
11 MR. KOPP: I will.
12 COMMISSIONER HUR: Okay.
13 MR. KOPP: Q. Mayor Lee, before you decided
14 to file written charges of official misconduct here, did
15 you talk to any members of the Board of Supervisors about
16 whether or not you shou
ld do so?
17 A. I did not.
18 Q. Okay. Now, you wrote in your declaration that
19 the reason why you waited to file these charges against
20 the sheriff until the criminal process had concluded, was
21 because you didn't want to interfere with his ability as
22 a criminal defendant to defend himself, correct?
23 A. Yes.
24 Q. Okay. Yet, you're also claiming that when
25 Sheriff Mirkarimi's lawyer, on the criminal case, served
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1 a subpoena for documents, that -- that he did something
2 improper.
3 Can you explain that?
4 A. With respect to the firearms issue?
5 Q. No. I'm asking about the assertion by you and
6 your attorneys that when Sheriff Mirkarimi's criminal
7 counsel served a subpoena for documents that that was
8 harassment of a witness in a criminal case?
9 MS. KAISER: Objection. He's questioning
10 Mayor Lee about attorney argument, and he's also
11 questioning Mayor Lee on a topic that -- to which there
12 was a relevance objection that was sustained.
13 If he didn't think it was relevant before, it's
14 an improper basis for questioning now.
15 COMMISSIONER HUR: So your objection's
16 relevance?
17 MS. KAISER: I think my objection is
18 consistency, but the main objection is --
19 COMMISSIONER HUR: We don't want speaking
20 objections. Just give me the objection and the basis.
21 MS. KAISER: Okay. Well, I did that. I won't
22 add to that.
23 COMMISSIONER HUR: The relevance objection is
24 sustained.
25 MR. KOPP: Q. Mayor Lee, before you filed
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1 these written charges of official misconduct, did you
2 think it would benefit you or any of your supporters
3 politically to have a different person in the office of
4 sheriff of San Francisco?
5 MS. KAISER: Objection; relevance.
6 MR. KOPP: Bias.
7 COMMISSIONER HUR: Overruled.
8 THE WITNESS: I have respected the election
9 process for that office, and I formed no opinion about
10 the candidates that ran for that office or their ability
11 to occupy it.
12 MR. KOPP: Q. Okay.
13 A. If that's what your question is?
14 Q. No.
15 A. I'm not sure of your question.
16 Q. My question is: Did you think it would benefit
17 you and your political backers politically to have a
18 different person in the office of the sheriff of
19 San Francisco, besides Sheriff Mirkarimi?
20 A. I actually -- my pause is because I hadn't
21 really thought about it.
22 Q. Okay. And it's -- it's a matter of record, you
23 did not support Sheriff Mirkarimi when he ran, correct?
24 MS. KAISER: Relevance.
25 COMMISSIONER HUR: Overruled.
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1 THE WITNESS: I don't believe I supported
2 anyone.
3 MR. KOPP: Okay.
4 Q. Now, one of the arguments that you have made in
5 these proceedings is that Sheriff Mirkarimi cannot stay
6 in office as sheriff because he will not be able to have
7 effective working partnerships with other city agencies
8 and the heads of those agencies, right?
9 A. Yes.
10 Q. Okay.
11 MS. KAISER: Objection. That actually
12 misstates prior testimony, counsel's argument about
13 what's in the record.
14 COMMISSIONER HUR: The answer is in.
15 Overruled.
16 MR. KOPP: Q. All right. Isn't it a fact,
17 though, that in elected politics people get elected that
18 often have disagreements with other elected officials?
19 A. That's correct.
20 Q. And sometimes you might have a bitter rival
21 that you wind up figuring out a way to work with, right?
22 A. Possibly, yes.
23 Q. And in fact, when you ran for election, one of
24 your opponents was current City Attorney Dennis Herrera,
25 right?
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1 A. Yes.
2 Q. And during that campaign, his campaign accused
3 your campaign of various violations of campaign financing
4 laws, right?
5 A. Yes.
6 Q. Yet, here he is representing you in these
7 proceedings, right?
8 A. Yes.
9 Q. So evidently you and Mr. Herrera have mended
10 whatever fences needed to be mended, right
?
11 A. Perhaps.
12 Q. Okay. Well, he's doing a good job for you.
13 Now, don't you consider the possibility that
14 whatever the difference -- the differences are that
15 currently exist between Sheriff Mirkarimi and the other
16 heads of various departments, those too could be mended?
17 A. At this time I don't believe so.
18 Q. Okay. And what do you base that on?
19 A. I've read the declarations of an expert in this
20 field, and particularly pointed is Mr. Lansdowne, and his
21 profession -- professional opinion about law enforcement,
22 and the relationships that they must have in order to
23 effectively carry out that work.
24 Q. Okay. Did you also read the declaration
25 provided by former Sheriff Michael Hennessey?
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1 A. Yes.
2 Q. And you saw therein where he said that he
3 believes that Sheriff Mirkarimi could effectively carry
4 out his duties if allowed to remain as sheriff?
5 A. I'm aware of what he said.
6 Q. All right. Now, do you think that
7 Mr. Lansdowne has more expertise about what it takes to
8 be the sheriff of San Francisco than
9 ex-Sheriff Michael Hennessey?
10 MS. KAISER: Objection. Relevance; improper
11 testimony by counsel; and it's beyond the scope of both
12 Mayor Lee's declaration, as well as the disclosure of
13 what they were going to ask Mr. Lee about in their
14 disclosure of witnesses.
15 COMMISSIONER HUR: I'm not sure exactly the
16 basis of the objection. I may have lost it.
17 MS. KAISER: I'm sorry, that was beyond the
18 scope.
19 COMMISSIONER HUR: Okay. Beyond the scope.
20 I'm inclined to overrule beyond the scope.
21 The sheriff could have -- could call the mayor
22 in his case-in-chief. In order not to require the mayor
23 to appear twice, I think we should -- we should allow it.
24 Moreover, I think it was -- I think the mayor brought it
25 up in one of his answers.
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1 So I'll overrule the beyond the scope
2 objection.
3 MR. KOPP: Unless the mayor still has it in
4 mind, could I ask if we could have that question read
5 back?
6 COMMISSIONER HUR: Sir, do you have the
7 question in mind?
8 THE WITNESS: Please repeat it.
9 COMMISSIONER HUR: Would you like to ask it
10 again or do you want the court reporter to reread it?
11 MR. KOPP: If it could be found, could you?
12 THE REPORTER: "All right. Now, do you think
13 that Mr. Lansdowne has more expertise about
14 what it takes to be the sheriff of
15 San Francisco than ex-Sheriff Michael
16 Hennessey?"
17 THE WITNESS: In terms of expertise, I believe
18 they have equal weight.
19 MR. KOPP: Q. And why is that?
20 A. Because they both have extensive backgrounds in
21 law enforcement.
22 Q. Okay. Well, Mr. Lansdowne has never held
23 elected office, correct?
24 MS. KAISER: Objection; foundation.
25 COMMISSIONER HUR: Do you know, Mr. Mayor?
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1 THE WITNESS: I don't know.
2 MR. KOPP: Q. Okay. Mr. Lansdowne has never
3 been a sheriff, correct?
4 MS. KAISER: Objection. Foundation, and this
5 is also a lay witness. He's here as a percipient witness
6 and he's being asked about expert matters and expert
7 testimony.
8 COMMISSIONER HUR: Again, Counsel, if we want
9 the base -- if we want further argument on an objection,
10 we'll ask for it. We don't want this -- we don't want to
11 take up more of the mayor's time or any witness' time,
12 than we need to.
13 I'm going to overrule that objection.
14 THE WITNESS: Again, what's the question?
15 MR. KOPP: Q. Well, do you know whether or
16 not Mr. Lansdowne was ever a sheriff in any county?
17 A. I don't believe -- I think your question was
18 whether he was elected sheriff. I don't know that.
19 Q. Okay. You do know that Mike Hennessey was
20 sheriff here for 32 years, right?
21 A. Yes.
22 Q. Yet you think that those two expert witnesses
23 carry the same weight about what -- about --
24 MS. KAISER: Objection. Asked and answered.
25 COMMISSIONER HUR: Let him finish his question.
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1 MS. KAISER: I'm sorry, was there more?
2 MR. KOPP: Well, I was trying to finish.
3 MS. KAISER: I'm sorry.
4 MR. KOPP: Q. You think that those two
5 experts carry the same weight about the qualifications
6 and ability to perform as sheriff of San Francisco,
7 right?
8 A. Yes.
9 Q. Now, you needed to consider some legal issues
10 before you decided to file these written charges of
11 official misconduct, right?
12 A. Yes.
13 Q. Because, in fact, the provision allowing for
14 removal proceedings under the San Francisco Charter has
15 been used sparingly in the history of the city, correct?
16 A. That is correct.
17 Q. And did you run across a case by the name of
18 Mazzola vs. the City and County of San Francisco?
19 MS. KAISER: Objection. Attorney-client
20 privilege.
21 MR. KOPP: I can rephrase it.
22 COMMISSIONER HUR: Why don't you rephrase.
23 MR. KOPP: Yes.
24 COMMISSIONER HUR: Sustained.
25 MR. KOPP: Q. Are you familiar with that case
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1 that I just mentioned?
2 A. Somewhat.
3 Q. Okay. And before you decided to file the
4 written charges, did you read the case?
5 A. Parts of it.
6 Q. Okay. Did you read the part of that case that
7 said for there to be a violation -- for there to be a
8 finding of official misconduct there must be a violation
9 or omission of a proscribed act committed while in
10 office?
11 Do you remember that?
12 MS. KAISER: Objection; foundation.
13 Do you have a copy of the document for the
14 witness?
15 MR. KOPP: Sure. I only have one.
16 COMMISSIONER HUR: I think the witness should
17 be able to see the document.
18 MR. KOPP: May I approach?
19 THE WITNESS: (Examination of documents.)
20 Yes, I have read it.
21 MR. KOPP: Q. Okay. Did you consider that
22 point of law to be important in your decision as to
23 whether or not you should file written charges against
24 Sheriff Mirkarimi?
25 MS. KAISER: Objection. Requires a legal
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1 conclusion.
2 COMMISSIONER HUR: Overruled.
3 THE WITNESS: Yes.
4 MR. KOPP: Q. And it was important, wasn't
5 it, because the incident between the sheriff and his wife
6 occurred before he took the oath of office and became the
7 sheriff, correct?
8 MS. KAISER: Objection. Requires a legal
9 conclusion; lacks foundation.
10 COMMISSIONER HUR: I'm going to sustain that.
11 I don't even follow the question.
12 MR. KOPP: Well --
13 COMMISSIONER HUR: Ask another question.
14 MR. KOPP: Sure.
15 Q. Before you filed these written charges, you
16 wanted to make sure that you had a sound legal basis for
17 doing so, right?
18 A. Yes.
19 Q. And one of the questions you wanted to
20 determine was if somebody did something before they took
21 the oath of office and became sheriff, whether or not
22 they could still be removed, right?
23 MS. KAISER: Objection. Attorney-client
24 privilege; assumes facts not in evidence.
25 COMMISSIONER HUR: Overruled. I don't see that
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1 calling for attorney-client privilege.
2 THE WITNESS: Yes.
3 MR. KOPP: Q. Okay. And you knew that the
4 incident with -- between the sheriff and his wife had
5 happened before he became sheriff, right?
6 MS. KAISER: Objection. Vague and ambiguous.
7 COMMISSIONER HUR: Mr. Mayor, do you understand
8 the question?
9 THE WITNESS: It could be interpreted different
10 ways, but I believe I -- generally I get the gist.
11 COMMISSIONER HUR: Why don't you re -- I'm
12 going to sustain the objection, Mr. Kopp.
13 Why don't you ask another question.
14 MR. KOPP: Yes.
15 Q. When I say "the incident," I'm talking about
16 the incident on December 31st where Sheriff Mirkarimi's
17 admitted that he grabbed his wife's arm leaving a bruise.
18 When I say that -- when I refer to that
19 incident, do you understand what I'm referring to?
20 A. Yes, I understand that that incident occurred
21 before he took the oath of office for sheriff.
22 Q. Okay. Now, you have asserted in your written
23 charges that Sheriff Mirkarimi's cond
uct fell below the
24 standards of decency, good faith, and right action that
25 is impliedly expected of public officials, correct?
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1 A. Yes.
2 Q. And we expect certain things of our elected
3 officials, right?
4 A. That's generally true, yes.
5 Q. Okay. And when the Charter speaks of official
6 misconduct, it doesn't say we expect a certain standard
7 for the sheriff, a different standard for the mayor,
8 another one for the D.A., separate one for the assessor,
9 it just speaks in general terms about official misconduct
10 for elected officials, right?
11 MS. KAISER: Objection. Lacks foundation;
12 argumentative; requires a legal conclusion.
13 COMMISSIONER HUR: Legal conclusion is
14 sustained.
15 MR. KOPP: Okay.
16 Q. Do you yourself believe there's a separate
17 standard for the sheriff and for other elected officials?
18 MS. KAISER: Objection; irrelevant.
19 COMMISSIONER HUR: Overruled.
20 THE WITNESS: It should be the same standard.
21 MR. KOPP: Q. Okay. And would you agree with
22 me that one of the things that is expected of elected
23 officials is for them to be honest and forthright when
24 dealing not only with their constituents, but with other
25 elected officials?
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1 COMMISSIONER HUR: Mr. Kopp, I am very sorry to
2 interrupt you, and that question will be pending. I've
3 been instructed that we need to adjourn proceedings for
4 now and we will resume when -- when it's permissible.
5 The meeting is adjourned. We will notify the
6 parties and the press when we can resume.
7 (Short recess from 1:30 p.m. until 3:00 p.m.)
8 COMMISSIONER HUR: Good afternoon. We're back
9 in session.
10 Apologize for the disruption. We received a --
11 again, we apologize for the disruption. We were notified
12 by the San Francisco Police Department that we needed to
13 adjourn the meeting. There was apparently a security
14 threat that has been found not to be credible. So that's
15 why we're back, and that's also the reason why we
16 initially adjourned.
17 So we are back in session.
18 Mr. Mayor, I caution you that you're still
19 under oath.
20 I believe when we left off there was a question
21 pending.
22 Mr. Kopp, would you like the court reporter to
23 reread the question or would you like to ask a question?
24 MR. KOPP: I have no idea what the question
25 was. That would be great if we could get it read back.
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1 Because that's never happened to me before.
2 COMMISSIONER HUR: I don't think you're alone
3 in that regard.
4 THE REPORTER: "Okay. And would you agree with
5 me that one of the things that is expected of
6 elected officials is for them to be honest and
7 forthright when dealing not only with their
8 constituents, but with other elected
9 officials?"
10 MR. KOPP: Thank you. And there was an answer?
11 COMMISSIONER HUR: No. There was no answer.
12 THE REPORTER: No.
13 MR. KOPP: Q. Then, Mr. Mayor, if I could ask
14 you to answer that question?
15 A. Yes.
16 Q. And when you became mayor you told everybody
17 you were not going to run for election. You were going
18 to be caretaker mayor and you were then going to leave
19 office, correct?
20 MS. KAISER: Objection. Relevance;
21 argumentative.
22 COMMISSIONER HUR: Sustained.
23 MR. KOPP: Well, may I be heard on this?
24 COMMISSIONER HUR: You may.
25 MR. KOPP: If one of the things that is
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1 expected of public officials is honesty to constituents
2 and other elected officials, and if that falls below the
3 level of decency, I think that's relevant to this inquiry
4 if this particular witness has fallen below that level.
5 COMMISSIONER HUR: My view is that the mayor's
6 conduct is not at issue before us, as far as whether or
7 not his conduct fall -- fell below the standard required
8 by 1505, which is why I think it's irrelevant.
9 MR. KOPP: Okay.
10 Q. Now, Mr. Mayor, you've given some public
11 statements about the reasons that you filed these
12 charges, right?
13
A. Yes.
14 Q. Okay. And you've spoken to some reporters,
15 right?
16 A. Yes.
17 Q. And you have told at least one reporter that
18 the reason why you think the sheriff should be removed is
19 because he beat his wife, right?
20 A. Yes.
21 Q. Okay. Upon which facts do you base that
22 assertion?
23 A. Court records --
24 Q. Okay.
25 A. -- and his admission of guilt.
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1 Q. Well, he -- the sheriff has admitted that he
2 grabbed his wife's arm in an argument and left a bruise,
3 right?
4 A. He admitted to domestic violence --
5 Q. Okay.
6 A. -- and he caused the bruises on his wife.
7 Q. Okay. Do you see a distinction between
8 grabbing someone hard enough to leave a bruise and
9 striking them, perhaps, with a fist?
10 A. I believe he caused bodily harm to his wife,
11 and that's what the basis of the facts are in his plea.
12 Q. Okay. And to you that's synonymous with
13 beating his wife?
14 A. Yes.
15 Q. All right. Now, do you think it falls below
16 the standards of decency and right action expected of
17 elected officials if you have an affair with a
18 subordinate who happens to be married to one of your good
19 friends?
20 MS. KAISER: Relevance. Objection; relevance.
21 COMMISSIONER HUR: Sustained.
22 MR. KOPP: Q. Does it fall below the standard
23 of decency and right conduct expected of public officials
24 to strike your spouse with a glass?
25 MS. KAISER: Objection. Relevance; calls for a
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1 legal conclusion.
2 COMMISSIONER HUR: That one I'll overrule.
3 THE WITNESS: I'm not sure I understand the
4 question.
5 (Audience interruption of proceedings.)
6 COMMISSIONER HUR: Please.
7 Again, I instruct the sheriffs, if we hear any
8 outbursts, I want that person removed. Thank you.
9 Yes, I'm speaking to you.
10 Yes. If -- I want you to be observing the
11 crowd. If anyone makes an outburst, and I understand
12 public -- trust me, I understand that you -- there's an
13 urge to have physical reaction, but we really do need to
14 keep silent. So please remove them --
15 SHERIFF'S DEPUTY: Okay.
16 COMMISSIONER HUR: -- if there is an outburst.
17 I apologize, Mr. Kopp.
18 MR. KOPP: No, that's fine.
19 Q. Let me see if I can explain. You're aware that
20 there were allegations that the fire chief struck her
21 spouse with a glass, right?
22 A. I -- I read some allegations in the newspapers.
23 Q. Okay. Were any steps taken to remove her from
24 office?
25 A. I don't know.
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1 Q. Okay. Would that fall below your definition of
2 the standard of decency and right action?
3 MS. KAISER: Objection. It calls for a legal
4 conclusion.
5 COMMISSIONER HUR: Overruled.
6 THE WITNESS: I don't know what you mean by
7 that, because I don't know all the circumstances around
8 that, and I wasn't -- I don't believe I was mayor at the
9 time.
10 MR. KOPP: Okay.
11 Q. Now, in your initial filing of written charges
12 of official misconduct, there was no mention of the
13 sheriff doing something improper with the way that he --
14 with the way that his firearms were turned over to law
15 enforcement, correct?
16 MS. KAISER: Objection; foundation.
17 COMMISSIONER HUR: Overruled.
18 THE WITNESS: There were -- there is
19 declarations from the police department that indicated
20 that there was less than full compliance with the orders
21 of the court.
22 MR. KOPP: Q. And you didn't make note of
23 that in your original written charges of official
24 misconduct, right?
25 MS. KAISER: Objection; foundation. Assumes
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 that the mayor read those charges.
2 COMMISSIONER HUR: Okay. Why don't you lay the
3 foundation about what was in the charges.
4 MR. KOPP: Sure.
5 COMMISSIONER HUR: Sustained.
6 MR. KOPP: Q. You originally caused written
7 charges of official misconduct to be filed against the
8
sheriff, correct?
9 A. Yes.
10 Q. Now, presumably you read those before you filed
11 them, right?
12 A. Yes.
13 Q. Okay. So you know what was in the original
14 written charges, right?
15 A. Yes.
16 Q. And there's nothing in the original written
17 charges about the sheriff doing anything improper in
18 relation to the giving of his firearms into police
19 custody, right?
20 A. I don't recall originally, yes.
21 Q. Okay. And in fact, you don't believe that to
22 be a sufficient basis to remove the sheriff from elective
23 office, right?
24 MS. KAISER: Objection. Argumentative; lacks
25 foundation.
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1 COMMISSIONER HUR: Overruled.
2 THE WITNESS: Are you speaking to that just
3 being the sole charge?
4 MR. KOPP: Q. Yes.
5 If that -- if that's the sole charge, do you
6 believe that that is sufficient to remove an elected
7 official from office?
8 MS. KAISER: Irrelevant objection.
9 COMMISSIONER HUR: Overruled.
10 THE WITNESS: In and of itself, I do not.
11 MR. KOPP: Q. As a matter of fact, in your
12 final written charges you have confined yourself to the
13 incident between the sheriff and his wife on December
14 31st, as well as allegations that the sheriff may have
15 been involved in an attempt to dissuade witnesses, right?
16 MS. KAISER: Objection. Do you have a document
17 that you could put in front of the mayor?
18 COMMISSIONER HUR: Okay. What is -- what is
19 the basis of the objection, the legal basis?
20 MS. KAISER: I think he's misrepresenting the
21 document. And I think it would help the witness to be
22 able to see the document rather than be quizzed by
23 memory.
24 COMMISSIONER HUR: I think --
25 MS. KAISER: I don't have one word about that.
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1 Sorry.
2 COMMISSIONER HUR: I think the question was
3 unclear. I would ask that you rephrase it.
4 MR. KOPP: Okay.
5 Q. Let me ask you about your claim that the
6 sheriff engaged in witness dissuasion.
7 You're familiar with that claim, right?
8 A. Yes.
9 Q. And, in fact, in the original written charges
10 of misconduct, the only thing that you claimed was that
11 he may have been involved in witness dissuasion, correct?
12 A. I'm not familiar -- I can't remember the exact
13 wording, but I understand the issue, yes.
14 Q. Okay. In the -- in the amended charges you now
15 say that he did engage in witness dissuasion?
16 A. Yes.
17 Q. All right. And what is the information that
18 you learned since the original filing of the charges and
19 the amended charges that caused you to make that
20 definitive assertion?
21 MS. KAISER: Objection. Attorney-client
22 privilege, and assumes facts not in evidence.
23 COMMISSIONER HUR: Could I have the question
24 read back.
25 THE REPORTER: "All right. And what is the
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 information that you learned since the original
2 filing of the charges and the amended charges
3 that caused you to make that definitive
4 assertion?"
5 COMMISSIONER HUR: I'll hear argument on the
6 attorney-client part.
7 MR. KOPP: I would limit it to information he
8 got from sources other than his lawyers.
9 COMMISSIONER HUR: With that stipulation, the
10 objection is overruled.
11 MS. KAISER: So just to be -- could Mr. Kopp
12 restate the question with the limitation, please?
13 COMMISSIONER HUR: Sure.
14 MR. KOPP: Let me go back and reask it.
15 Q. Without telling us anything that you learned
16 from your lawyers, can you explain what is the basis for
17 your assertion that the sheriff engaged in witness
18 dissuasion?
19 A. The review further of the declarations or the
20 statements that were reflective of the videotape and the
21 declarations of the particular witness Ivory Madison.
22 Q. And is it your assertion that Sheriff Mirkarimi
23 somehow dissuaded Ivory Madison from speaking with the
24 police?
25 A. I believe that he was part of the effort to not
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 have people talk to the police de
partment --
2 Q. Okay.
3 A. -- including his wife.
4 Q. Okay. And what do you base that belief on?
5 A. The declarations of -- not declarations, but
6 the transliteration of the videotape.
7 Q. And when you say "the videotape," you're
8 talking about the video -- the one-minute videotape that
9 Miss Lopez made with Miss Madison?
10 A. Yes.
11 Q. Okay. Are there any other facts that you base
12 that assertion on?
13 MS. KAISER: Objection. Attorney-client
14 privilege.
15 MR. KOPP: Excluding --
16 COMMISSIONER HUR: Excluding conversations with
17 your counsel.
18 MR. KOPP: -- conversations with your counsel.
19 COMMISSIONER HUR: With that limitation the
20 objection is overruled.
21 THE WITNESS: The declarations of Ivory
22 Madison.
23 MR. KOPP: Q. All right. Now, you have
24 stated in your declaration that one of the reasons that
25 was significant to you that this was official misconduct
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 is because a law enforcement officer must follow the law
2 and enforce it, but Sheriff Mirkarimi pled guilty and was
3 convicted of a crime; is that right?
4 A. Yes.
5 Q. Okay. Is it your belief that any time a law
6 enforcement officer is convicted of a crime that
7 constitutes official misconduct for which they must be
8 removed from their employment?
9 A. I believe that it is significant that being the
10 sheriff of the city that engaged in and was convicted of
11 and pleaded guilty to domestic violence is the wrongful
12 behavior that constitutes wrongful -- constitutes
13 official misconduct.
14 Q. Okay. Let me ask you: What if a deputy
15 sheriff gets convicted of a crime, must they be removed
16 from office?
17 A. If it is similarly situated and similar
18 circumstances, that would probably be the conclusion.
19 Q. Okay. And if you discovered that there were
20 deputies within the San Francisco Sheriff's Department
21 who were similarly situated yet were not terminated,
22 would that change your opinion?
23 A. Not necessarily.
24 Q. Okay. You also say that because
25 Sheriff Mirkarimi was sentenced to time served in County
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Jail and the sheriff is charged with overseeing prisoners
2 in the jail that that somehow constitutes official
3 misconduct, right?
4 A. In the context of all the actions, yes.
5 Q. Okay. And you are aware that, in fact, this
6 was in fact a book-and-release procedure, where the
7 sheriff surrendered, posted bail, and was immediately
8 released, correct?
9 A. I'm not aware of any difference of being -- of
10 his arrest and any other arrests. It's still an official
11 arrest.
12 Q. Okay. Are you aware that a former sheriff of
13 San Francisco actually spent five days in jail on a
14 criminal contempt conviction and was not removed?
15 MS. KAISER: Objection; relevance.
16 COMMISSIONER HUR: Sustained.
17 MR. KOPP: Q. Was it -- was it your belief
18 after you reviewed these court records and the records --
19 well, strike that. I'm sorry.
20 After you saw that Sheriff Mirkarimi had
21 pleaded guilty to the misdemeanor, false imprisonment,
22 did you do any additional investigation before you
23 brought Sheriff Mirkarimi in to talk to you?
24 A. Yes.
25 Q. What did you do?
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 A. I reviewed all of the court records that were
2 available at the time from court proceedings.
3 Q. Okay. Did you seek to speak with any witnesses
4 to that case?
5 MS. KAISER: Objection. Deliberative process
6 privilege in terms of who the mayor spoke with in regard
7 to the case.
8 COMMISSIONER HUR: Mr. Kopp, you did ask that
9 question earlier. I thought we resolved it.
10 MR. KOPP: I'm not asking for the nature --
11 COMMISSIONER HUR: You're asking did you talk
12 to anybody?
13 MR. KOPP: Did he seek to speak with any
14 witnesses and I can narrow it.
15 COMMISSIONER HUR: Okay. I think did you talk
16 to any witnesses is okay.
17 Overruled.
18 You may answer, Mr. Mayor, if you recall.
19 THE WITNESS: Yes.
20 MR. KOPP: Q. Which witnesses?
21 A. Ivory Madison.
22 MS. KAISER: Objection --
23 COMMISSIONER HUR: The answer's in.
24 MR. KOPP: Q. Did you talk to Eliana Lopez?
25
MS. KAISER: Same objection. The deliberative
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 process privilege applies in terms of who the mayor
2 consulted with when making high level policy decisions
3 like the discretionary decision at issue here.
4 COMMISSIONER HUR: Mr. Kopp, response?
5 MR. KOPP: I don't have a response because I
6 haven't had a chance to research the deliberative process
7 privilege, because it appears to be common law and not
8 statutory.
9 But, the mayor has discussed talking to
10 Sheriff Mirkarimi and not anybody else. So, I mean, I
11 think that that is fair game here.
12 COMMISSIONER HUR: Where -- where does he say
13 that?
14 MR. KOPP: In Paragraph 6 of his declaration.
15 "I met with Sheriff Mirkarimi, spoke with him, and gave
16 him an opportunity to resign."
17 COMMISSIONER HUR: Where does it say he didn't
18 speak to anybody else?
19 MR. KOPP: Well, I think that's inferred from
20 the lack of mention of him speaking with anybody else.
21 COMMISSIONER HUR: Mr. Emblidge, do you have
22 any insight into whether the deliberative process
23 privilege would apply here?
24 MR. EMBLIDGE: The deliberative process
25 privilege has been, as Miss Kaiser stated, applied by the
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 California Supreme Court as to Governor Deukmejian and
2 who he met with in making policy decisions.
3 Certainly that would be useful analogy. I'm
4 not aware of any reported case where the deliberative
5 process privilege has been applied in a situation where
6 charges were filed against someone, but I'm not sure
7 that's an important distinction.
8 COMMISSIONER HUR: Does it matter that the
9 people that the sheriff is asking about are not other
10 officials but just lay citizens?
11 MR. EMBLIDGE: No. In the Deukmejian case, it
12 was a request by the press to examine his appointment
13 book, and the issue was he should be free to meet -- that
14 the governor should be free to meet with whoever he wants
15 to meet in order to make a policy decision outside or
16 inside the government.
17 COMMISSIONER HUR: Does the privilege attach to
18 the witness who spoke to the executive? In other words,
19 does -- does Miss Lopez -- she's not bound by any -- by
20 that privilege?
21 MR. EMBLIDGE: Not that I'm aware of. I'm not
22 aware of anything extending the privilege in that manner.
23 COMMISSIONER HUR: Okay. Do any of the
24 Commissioners have views on this?
25 Miss Kaiser.
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MS. KAISER: I would like to address the waiver
2 argument, which I have not had an opportunity to speak to
3 before.
4 There is case authority for the proposition
5 that unlike attorney-client privilege or -- usually it's
6 attorney-client privilege where you tell part of the
7 story and you've opened the door to full disclosure.
8 That is actually not the case with deliberative process
9 privilege.
10 It is possible and desirable for an official to
11 be able to discuss what they did in terms of reaching a
12 decision without having then to disclose everything they
13 did and everyone they spoke to.
14 So the case law has held that there is no
15 waiver simply because you've disclosed something about
16 the decision-making process that you went through.
17 So the mayor is entitled to disclose what he
18 has disclosed without being compelled to then discuss the
19 names and identities of everyone he spoke to while making
20 the decision. And the case authority for that is
21 Blue Lake Forrest Products vs. United States. It's 75
22 Fed. Cl. 779, 791. It's a 2007 case.
23 COMMISSIONER HUR: Do you have anything else to
24 say?
25 MR. KOPP: It's a little hard to research this
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 on the fly.
2 COMMISSIONER HUR: I'm going to sustain the
3 objection.
4 MR. KOPP: Q. Let me ask you this, Mayor Lee.
5 You met with the sheriff and asked him to
6 resign, correct?
7 A. I did meet with the sheriff, yes.
8 Q. And when the sheriff came to meet with you, he
9 came with a lawyer from the sheriff's department, right?
10 A. I believe he did come with somebody, yes.
11 Q. And you decided that you didn't want to have
12 that person present but you wanted to meet with the
13 sheri
ff one-on-one, correct?
14 MS. KAISER: Relevance, objection.
15 COMMISSIONER HUR: Overruled.
16 THE WITNESS: I asked him if he would come in
17 by himself to talk with me.
18 MR. KOPP: Q. Okay. And when you spoke with
19 him, did he offer to make his wife available to you so
20 that you could speak with her before you made any
21 decision on this matter?
22 A. I don't recollect the exact words, but I
23 believe he made some assertion in that direction.
24 Q. Okay. Offered you her phone number if you
25 wanted to speak with her?
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1 A. I don't recall that.
2 Q. Okay. Did you ever speak with Miss Lopez?
3 A. No.
4 Q. Okay. And that's because when you brought the
5 sheriff in, your mind was made up. You were going to
6 give him a choice, either resign or we'll file the
7 written charges?
8 A. I had determined what direction I had. I gave
9 him an opportunity to come meet with me and talk with me.
10 We did. And had an opportunity to tell him what we're
11 going to do and also give him some time to think about
12 it.
13 Q. Well, one day, right?
14 A. Yes.
15 Q. Okay. And so, is your testimony that when he
16 came to meet with you, you had an open mind about what
17 you were going to do? That is, if the sheriff could
18 persuade you that this conduct didn't warrant him being
19 removed from office that you might not have done that?
20 A. I was open to listening to him, but I was also
21 clear that I wanted to indicate to him what I was
22 considering doing.
23 Q. Okay. So as of the day before you filed the
24 written charges, you still had not decided what you were
25 going to do?
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MS. KAISER: Objection. Misstates testimony.
2 COMMISSIONER HUR: The witness can clarify if
3 that's -- if that misstated his testimony.
4 But you may answer, if you can. Do you have
5 the question in mind?
6 Yeah. Can you read back the question.
7 MR. KOPP: Or I'll try --
8 COMMISSIONER HUR: Or do you want to reask
9 it --
10 MR. KOPP: I'll try to reask it.
11 Q. You had two meetings with the sheriff, and one
12 was on one day and one was on the very next day, right?
13 A. I had one meeting with the sheriff, and then I
14 had another conversation with him on the telephone.
15 Q. And were there not two meetings that both took
16 place in your office?
17 MS. KAISER: Objection; vague.
18 COMMISSIONER HUR: Sustained.
19 MR. KOPP: Q. Isn't it -- isn't it true that
20 you met with him on two successive days and both meetings
21 were in your office?
22 MS. KAISER: Objection; vague.
23 COMMISSIONER HUR: Do you understand,
24 Mr. Mayor, what he's asking?
25 THE WITNESS: I don't recall having two
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 meetings, a physical meeting with Mr. Mirkarimi at the
2 time.
3 MR. KOPP: Q. Okay. So your best memory is
4 that there was -- the first meeting was in person in your
5 office and the next time you talked to him was by
6 telephone?
7 A. That is correct.
8 Q. And it was on the second time that he told you
9 he was not going to resign, correct?
10 A. That is correct.
11 Q. Okay. And -- and at that point you had decided
12 that you didn't think Sheriff Mirkarimi was fit to be
13 employed by the City of San Francisco, right?
14 A. I had at that time come to a final conclusion
15 that he had conducted himself with official misconduct
16 and he had engaged in a wrongful behavior and came to
17 that conclusion.
18 Q. Okay. Did you ever extend an offer through
19 third parties that he -- if he would just resign, you'd
20 find him another job in the city?
21 MS. KAISER: Objection; relevance.
22 COMMISSIONER HUR: Mr. Kopp, where are you
23 going with this line?
24 MR. KOPP: Credibility. If he didn't think he
25 was fit to be sheriff, why would he think he would be fit
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1 for a city job?
2 MS. KAISER: I'm --
3 COMMISSIONER HUR: Miss Kaiser.
4 MS. KAISER: I would continue to object on the
5 basis of relevance, and I also don't think it goes to
6 bias.
7 Many times there are problems that people try
8 to resolve with compromise and that does not mean that
9 they don't believe that there is an actual problem.
10 COMMISSIONER HUR: I understand your objection.
11 The mayor, though, has put at issue the reasons why he
12 suspended the sheriff in his declaration, and I do --
13 it's pretty close to the line, Mr. Kopp, but I do think
14 given that bases it could arguably go to bias.
15 So it's overruled.
16 THE WITNESS: I don't -- I don't recall
17 offering Mr. Mirkarimi any job.
18 MR. KOPP: Q. So you never authorized, say,
19 Aaron Peskin or Walter Wong to convey to
20 Sheriff Mirkarimi if he would step down, you'd give him
21 another job?
22 A. Absolutely not.
23 MR. KOPP: Thank you. I have no further
24 questions.
25 COMMISSIONER HUR: Thank you, Mr. Kopp.
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Miss Kaiser, do you have any redirect?
2 MS. KAISER: Yes, I do. Thank you.
3 ---oOo---
4 REDIRECT EXAMINATION BY MS. KAISER
5 MS. KAISER: Q. Good Afternoon, Mr. Mayor.
6 When you said that the sheriff beat his wife in
7 a recent interview, as you just discussed with Mr. Kopp,
8 did you make a distinction in your mind between a little
9 domestic violence and lot of domestic violence?
10 A. No, I did not.
11 Q. Do you believe there is such a thing as just a
12 little domestic violence?
13 A. No, I -- I came to the conclusion he did commit
14 domestic violence. He admitted to it, and that's the
15 conclusion I have.
16 Q. Why did you not call Eliana Lopez?
17 A. I did not believe that discussion with her had
18 anything to do with the decision that I was responsible
19 to make with respect to official misconduct.
20 Q. Why not? Why did you not need any further
21 information from her?
22 A. Because I believe that the record that was
23 established through the court -- the criminal actions
24 that were confirmed, the plea of guilty, were enough to
25 define the wrongful behavior for official misconduct.
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Q. So is it fair to say that you relied on his
2 guilty plea instead of calling his wife?
3 MR. KOPP: Objection; leading.
4 COMMISSIONER HUR: Sustained.
5 MS. KAISER: Q. What was the main criterion
6 in your decision, if there was a main criterion? What
7 was your main criterion when you reviewed the record and
8 the information that you had and decided that there was a
9 reason to state a charge of official misconduct?
10 A. The question I had is whether he actually did
11 engage in criminal activity, that -- whether he had
12 perpetrated domestic violence on his spouse, and
13 whether -- and as I read it he admitted to false
14 imprisonment.
15 Q. What convinced you, if anything, that he had
16 actually done these things?
17 A. Primarily his plea to that charge and the
18 acceptance of the sentencing that goes with it.
19 Q. Did you understand his guilty plea to be an
20 admission on his part that he actually did what was
21 charged and what he pled guilty to?
22 MR. KOPP: Objection; leading.
23 MS. KAISER: I'm asking about his
24 understanding.
25 COMMISSIONER HUR: It's a form objection.
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1 I'll sustain it. You need to rephrase it.
2 MS. KAISER: Q. What did you -- what, if
3 anything, did you understand the plea that he entered of
4 guilty to mean about his actual culpability?
5 A. That he was the one that admitted to being
6 guilty of the charge of false imprisonment; that is --
7 that is, domestic violence. And that he caused the
8 physical bruising on Miss Lopez's body.
9 Q. Do you have an understanding, Mr. Mayor, or an
10 expectation of the relationship between a guilty plea and
11 factual guilt?
12 MR. KOPP: Objection. That's beyond the scope.
13 COMMISSIONER HUR: Overruled.
14 THE WITNESS: A guilty plea is in fact the
15 admission of those facts that support that allegation.
16 MS. KAISER: Q. So you've been criticized for
17 not calling Eliana. Why -- you've also -- it's been
18 noted in the sheriff's declaration that -- and elsewhere
19 in public that you did not complete a full investigation
20 before you brought charges.
21 Is there a reason why you were prepared to
22 bring charges when you did?
23 MR. KOPP: Objection. Counsel's testifying.
24 COMMISSIONER HUR:
Overruled.
25 THE WITNESS: I waited for the whole criminal
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 prosecution to complete itself. And, as I said earlier,
2 out of respect for Mr. Mirkarimi's rights, as well as the
3 judicial process, I waited for the whole conclusion, and
4 then asked to make sure that I had the complete record
5 and viewed what I could in order to make that
6 determination.
7 MS. KAISER: Q. Was there any reason why you
8 didn't then also conduct your own full investigation?
9 A. I believe that the court process established
10 the facts and the plea and that was sufficient to confirm
11 the wrongful behavior.
12 Q. Why didn't you suspend Sheriff Mirkarimi with
13 pay?
14 A. I believe that -- that that position requires
15 someone who is working in order for the city to pay that
16 person. And if that person is not permitted in this case
17 to work, and -- it was as a result of these
18 circumstances, that I felt it necessary to suspend
19 without pay.
20 Q. Well, why didn't you treat him as innocent
21 until proven guilty?
22 A. Because he had already pleaded guilty to this
23 charge and the court confirmation of this was its
24 conclusion.
25 Q. You mentioned -- well, Mr. Kopp mentioned and
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1 you agreed earlier that there are some political issues
2 between you and my boss, Dennis Hererra.
3 Is he your political ally? Was he in the
4 last -- I'll withdraw that.
5 Was City Attorney Dennis Herrera your political
6 ally in the last election?
7 A. I don't think so.
8 Q. Are you planning on suspending Dennis Herrera
9 and bringing charges of official misconduct because he
10 was not your ally in the last election?
11 MR. KOPP: Objection; relevance.
12 COMMISSIONER HUR: Sustained.
13 MS. KAISER: Q. Mr. Mayor, do you think
14 you're more prone to bringing official misconduct charges
15 against people who are not your political allies?
16 MR. KOPP: Objection; relevance.
17 COMMISSIONER HUR: Overruled.
18 THE WITNESS: No.
19 MS. KAISER: Q. A sheriff is a department
20 head in San Francisco; is that correct?
21 A. Yes.
22 Q. Is there any department head of any department
23 who could plead guilty to domestic violence and not be
24 removed for official misconduct?
25 MR. KOPP: Objection. Calls for speculation;
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 no foundation.
2 COMMISSIONER HUR: You asked the same types of
3 questions.
4 I'll overrule that.
5 THE WITNESS: I -- I would find that that would
6 be a serious enough charge to fulfill an official
7 misconduct, certainly wrongful behavior.
8 MS. KAISER: Q. Any department head?
9 A. That's correct.
10 Q. Okay. Would you have any -- did you have any
11 special concerns, of any sort, that the department head
12 in question who had pled guilty to a charge of domestic
13 violence was the sheriff?
14 A. I think there is added significance that --
15 because the sheriff is one of the top two law enforcement
16 positions in the city.
17 Q. Can you say more about how that is significant
18 in your view?
19 A. One of the more disturbing aspects of this is
20 my knowledge that the sheriff is in charge of
21 responsibilities with respect to domestic violence
22 victims, and that it has historically been a very strong
23 program in the City of San Francisco, shared by
24 several various departments to do their part to prevent
25 and to respond to and to encourage witnesses to come
902
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 forth in an effort to end domestic violence, and that the
2 sheriff's department is a key to those various agencies
3 that have that responsibility. And for the sheriff
4 himself to be confirmed as engaged in this is
5 significant.
6 Q. Do you believe you should lead by example,
7 Mr. Mayor?
8 A. Yes, clearly.
9 Q. Do you believe that part of leading by example
10 is showing a power of redemption?
11 A. That's certainly something that I've learned,
12 particularly as applied to domestic violence.
13 Q. Couldn't you model redemption by dropping the
14 official misconduct charges against Sheriff Mirkarimi and
15 giving him a second chance?
16 A. I came to the conclusion of
official misconduct
17 because I believe that the actions that were admitted to,
18 and the crime that was perpetrated, has to have direct
19 consequences, and I believe strongly that a direct
20 consequence is that you cannot be sheriff of the city if
21 you are guilty of domestic violence.
22 Q. Do you think, as you sit here today, that the
23 sheriff is ready for a second chance from you as the
24 decision maker?
25 MR. KOPP: Objection. Relevance; speculation.
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 COMMISSIONER HUR: Sustained.
2 MS. KAISER: Q. Mr. Mayor, does the sheriff
3 have any duty to work together with the mayor?
4 A. Yes.
5 Q. In light of the events that have transpired
6 since you brought the official misconduct charges and the
7 discourse that has been in the -- well, let me back up.
8 Are you aware of any statements that have been
9 made about you in the press by the sheriff or his
10 attorneys?
11 MR. KOPP: Objection; relevance.
12 MS. KAISER: I'm laying a foundation.
13 COMMISSIONER HUR: I'll allow that.
14 Overruled.
15 THE WITNESS: Some.
16 MS. KAISER: Q. Have they been friendly
17 assertions?
18 A. I don't believe so.
19 Q. Are they the sorts of assertions that you
20 believe you could get past and rebuild a relationship
21 with the sheriff so that you could work effectively
22 together if he's reinstated?
23 A. Be extremely difficult.
24 Q. One last question, Mr. Mayor.
25 In terms of official misconduct charges, are
904
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 you the decision maker in the process, the ultimate
2 decision maker about whether the sheriff should be
3 removed?
4 MR. KOPP: Objection. Calls for a legal
5 conclusion.
6 COMMISSIONER HUR: I'll allow that.
7 Overruled.
8 THE WITNESS: I am not.
9 MS. KAISER: Q. So are your conclusions and
10 your beliefs, as you understand this process, to be the
11 final word on whether the sheriff has committed official
12 misconduct?
13 A. No. I have brought the charges based upon the
14 facts that I've seen, and I know that it is the ultimate
15 responsibility of two additional bodies to confirm that.
16 Q. So as you understand it, does this case rise or
17 fall in any way on your opinions?
18 MR. KOPP: Objection; relevance.
19 COMMISSIONER HUR: Overruled.
20 THE WITNESS: It does not.
21 COMMISSIONER HUR: Thank you, Mr. Mayor.
22 MR. KOPP: Just briefly, Mr. Chairperson.
23 COMMISSIONER HUR: Yes, Mr. Kopp. Please
24 proceed.
25 ---oOo---
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 RECROSS-EXAMINATION BY MR. KOPP
2 MR. KOPP: Q. So, Mayor Lee, you said
3 essentially that your feelings have been hurt by some of
4 this stuff and you'd find it extremely difficult to get
5 past that and work with the sheriff?
6 MS. KAISER: Objection. Misstates testimony.
7 COMMISSIONER HUR: Please rephrase.
8 MR. KOPP: All right.
9 COMMISSIONER HUR: Objection sustained.
10 MR. KOPP: Q. Mayor Lee, you just testified
11 that based on things that have been said during the
12 course of this proceeding, you would find it exceedingly
13 difficult to work with the sheriff if he remained in
14 office, right?
15 A. That's correct.
16 Q. Okay. Let's say this process concludes and you
17 don't have the votes in the Board of Supervisors and the
18 sheriff remains sheriff, are you telling the Commission
19 that you will refuse to carry out your duty to work with
20 the sheriff?
21 A. I'm not -- I'm not going to refrain from any of
22 my duties as I haven't up to this time. I will continue
23 carrying out my duties, if that's what you mean.
24 Q. Right.
25 And if these removal proceedings do not result
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 in the removal of Sheriff Mirkarimi, of course you will
2 put aside your feelings and do what's best for the city
3 and work with him, right?
4 A. Yes.
5 Q. Just as you put aside your differences with
6 Mr. Herrera and you're working with him, right?
7 A. Yes.
8 MR. KOPP: Thank you. Nothing further.
9
COMMISSIONER HUR: Do any Commissioners have
10 questions for the mayor?
11 Mr. Mayor, thank you for your time. You are
12 released.
13 (Mayor Edwin Lee left the meeting room.)
14 COMMISSIONER HUR: The next witness I
15 understand will be Chief Lansdowne.
16 Madam Court Reporter, would you please swear
17 the witness.
18 ---oOo---
19 CHIEF OF POLICE WILLIAM M. LANSDOWNE,
20 having been first duly sworn through the court reporter
21 testified as follows:
22 ---oOo---
23 MR. KOPP: Sorry, I just need one more moment
24 to find a document.
25 COMMISSIONER HUR: Good afternoon.
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 THE WITNESS: Good afternoon, Commissioner.
2 It's truly a pleasure to be here.
3 You know, I've been in this business for a long
4 time. This is the best hearing I've been in in 47 years.
5 You're doing an incredibly good job.
6 COMMISSIONER HUR: I appreciate the sentiment,
7 but I think I would strike that from the record.
8 ---oOo---
9 CROSS-EXAMINATION BY MR. KOPP
10 MR. KOPP: Q. Good afternoon,
11 Chief Lansdowne.
12 A. Good afternoon.
13 Q. How are you?
14 A. I'm doing very well. Thank you.
15 Q. All right. Thank you for making the trip here.
16 I want to ask you some questions about your
17 declaration.
18 Now, I understand you've been retained by the
19 mayor to serve as his expert witness, correct?
20 A. That's correct. I've been asked to come here
21 and testify.
22 Q. And can you give me an estimate of exactly how
23 many hours you have spent reviewing documents, consulting
24 with the mayor's lawyers, and/or the mayor, and drafting
25 and editing and preparing your declaration?
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MS. KAISER: Objection to the extent and only
2 to the extent that any of that would intrude on
3 attorney-client privilege.
4 COMMISSIONER HUR: Overruled.
5 You don't have an attorney-client privilege
6 with an expert.
7 MS. KAISER: You're right. Work product.
8 COMMISSIONER HUR: Overruled.
9 THE WITNESS: I would estimate 40 plus hours.
10 MR. KOPP: Q. Forty plus hours.
11 And -- and you also submitted a list of all the
12 materials that you reviewed, which were fairly
13 voluminous, right?
14 A. Yes, sir, I did.
15 Q. Okay. And you've been in law enforcement for a
16 long, long time, right?
17 A. Yes, sir.
18 Q. And you have lectured on ethics of police
19 officers, right?
20 A. That's correct, sir.
21 Q. And you'd agree with me that police officers or
22 sheriffs are human beings like everybody else, right?
23 A. Yes, sir, they are.
24 Q. They're not always perfect, right?
25 A. No one's always perfect.
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Q. And you've trained many officers -- actually, I
2 think, if I read your declaration correctly, you said you
3 trained every officer in the San Diego Police Department?
4 A. And in San Jose and in Richmond, California.
5 Q. And so that's personal training that you've
6 given these officers when they come on the force?
7 A. Yes, sir. Day one when they walk in the front
8 door.
9 Q. How do you have time to do anything else?
10 A. They come on in a series, sir.
11 Q. Okay. And you instruct officers about how to
12 be a good cop, right?
13 A. Absolutely.
14 Q. And some of them listen to you and some of them
15 kind of go by the wayside, right?
16 A. Some of them make mistakes, yes, sir.
17 Q. I mean, within your own department there are
18 currently lawsuits and allegations of police officers
19 doing improper things, right?
20 A. Yes, sir. In any big city you're going to have
21 some issues to deal with.
22 Q. Sure.
23 Now, you talk about your knowledge of sheriffs,
24 because you've been involved in these organizations where
25 there's different kinds of peace officers there, right?
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 A. Yes, sir.
2 Q. Okay. Now, in the County of San Diego, is
3 there a sheriff?
4 A. Yes, sir, there is.
5 Q. And they have an area that they patrol?
6 A. Yes, sir.
7 Q. So they're -- they're actually patrol officers
8 and they're serving the function that's equivalent to
9 police officers in municipalities, right?
10 A. They have a patrol function, but they also have
11 a very large custody function in the courts that they
12 deal, and a lot of civil procedures and policies that
13 they have to enforce.
14 Q. Right.
15 And you're aware that in San Francisco the
16 primary responsibility of the sheriff, because it's a
17 city and county, is to keep the jail and execute orders
18 of the court, right?
19 A. The primary responsibility of the sheriff is
20 similar to my job. We manage people. We manage a
21 budget. We set policy. We work with the community and
22 certainly with government and jail, and some of the other
23 procedures they have are certainly a little bit different
24 than ours.
25 We don't get involved, nor does the sheriff get
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 involved, in the hands-on at the ground level. We're a
2 much higher level than that.
3 Q. Okay. But the sheriff's department in
4 San Francisco, they don't have deputies that are out
5 there on patrol doing the work of police officers, right?
6 A. No, sir.
7 Q. Okay. So this sheriff's department is unlike
8 any other in the other 40 or 50 counties in the state,
9 right?
10 MS. KAISER: Objection. Not in evidence; no
11 foundation.
12 COMMISSIONER HUR: Overruled.
13 THE WITNESS: I don't think they're much
14 different. They don't have the patrol function, but they
15 still have the function of being the sheriff, the lead
16 investigator, the lead law enforcement person in the
17 County of San Die -- San Francisco.
18 MR. KOPP: Q. Okay. When you say "lead
19 investigator," investigator into what?
20 A. They are the ones that the County of
21 San Francisco look at as one of those people that is the
22 one that sets policy, that sets standards of acceptable
23 behavior for law enforcement.
24 When you talk about law enforcement in
25 San Francisco or you talk about law enforcement in
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 San Diego, it's the chief executives that they're talking
2 about, that represents law enforcement in either county.
3 Q. Okay. And it's your opinion that peace
4 officers have to be held to a higher standard than other
5 public servants, right?
6 A. Yes, sir. And I believe the chiefs, executive
7 officers, and sheriffs have to be held to an even higher
8 standard.
9 Q. All right. And you also believe that if peace
10 officers are convicted of crimes, and if they haven't
11 passed their probationary period, they ought not to be
12 hired, and if they had, they ought to be fired?
13 A. I know of no personal situation that I've been
14 involved with or other officers or, at least, chiefs or
15 sheriffs that I know of that have had probationary
16 officers who have gotten into criminal charges that have
17 not been terminated from the organization.
18 Q. Okay. Do you know of peace officers who've
19 been convicted of crimes after they've become full peace
20 officers and have stayed on the job?
21 A. Yes, sir.
22 Q. And that's even happened in the case of the
23 sheriff of a county, right?
24 A. I'm not sure what county.
25 Q. Robbie Waters in Sacramento.
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MS. KAISER: Objection; relevance.
2 COMMISSIONER HUR: Overruled, but let's get on
3 with it.
4 THE WITNESS: I read that in the declaration of
5 Sheriff Hennessey, but I'm not sure. I know nothing
6 about that particular incident.
7 MR. KOPP: Q. Okay. So you have read
8 Sheriff Hennessey's declaration?
9 A. Yes, sir, I did.
10 Q. And you're aware that he was sheriff here for
11 32 years, right?
12 A. I admire the work he does.
13 Q. And is it fair to say that he's probably the
14 primary expert on the San Francisco Sheriff's Department?
15 A. I would say that he would be very knowledgeable
16 about the San Francisco Sheriff's Department, that's
17 correct, sir.
18 Q. Okay. And you're aware, having read his
19 declaration, that there are numerous sworn and unsworn
20 employees within that department who have suffered
21 criminal convictions, right?
22 A. Yes.
23 Q. And, in
fact, one of his top non-sworn
24 personnel members went to prison for manslaughter, right?
25 A. I was unfamiliar with that.
914
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Q. Okay. Well, after you read that in his
2 declaration, did you follow up on that to find out more
3 information about it?
4 A. I did.
5 Q. And did you find that to be true?
6 A. I did.
7 Q. And did that indicate to you that, perhaps, the
8 standards within the San Francisco Sheriff's Department
9 might be different than they are in other departments,
10 whether they're police or sheriff's departments around
11 the state of the country?
12 A. No, I did not.
13 My true and honest belief is that the sheriff
14 himself would hold himself accountable and other sheriffs
15 and other chiefs of police would hold themselves
16 accountable.
17 Q. But doesn't it -- doesn't the fact that the
18 San Francisco Sheriff's Department has had sworn and
19 unsworn personnel who have suffered criminal convictions,
20 doesn't that lead you to believe that maybe the culture
21 in the San Francisco Sheriff's Department may be
22 different than in other departments that you know?
23 A. I believe all departments probably have some
24 officers who have been arrested and convicted and are
25 still operating within their organizations.
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Q. And likely there are many of those officers who
2 are still doing a good job, right?
3 A. Correct.
4 Q. So the mere fact, in and of itself, that a
5 peace officer suffers a criminal conviction does not
6 automatically mean that they are unfit for the job,
7 correct?
8 A. I think you need to define the term, sir.
9 We're talking about sheriff and chief and peace officer.
10 They're two distinct and different positions.
11 One makes policy, one sets priorities, and one
12 is the face of the organization. That's the sheriff or
13 the chief. And the standard for them is unequivocally
14 higher than anyone else in that organization.
15 Q. Okay. So if, for example, the sheriff of a
16 county suffered a criminal conviction, it would be your
17 opinion that they would be unfit to hold the office bar
18 none?
19 A. Absolutely.
20 Q. And if that's ever happened, you couldn't
21 understand the reason for it?
22 A. I would not think that it would be in the best
23 interests of the county that they serve.
24 Q. Sure.
25 Now, you yourself have never held elected
916
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 office, am I right about that?
2 A. I've never run for elected office. No, sir, I
3 have not.
4 Q. And you understand that sheriffs are
5 constitutional officers, and that the constitution says
6 they are one of the five offices in each county in the
7 state that are elected, right?
8 A. That's correct, sir.
9 Q. And you believe in the democratic process,
10 right?
11 A. Oh, absolutely. I've been defending it for 47
12 years.
13 Q. Okay. Now, one of the things that you wrote in
14 your declaration is that if the sheriff doesn't hold
15 himself accountable, no one else is in a position to do
16 so.
17 And for anybody who cares, it's on Page 14 of
18 the declaration, Line -- Paragraph 50.
19 And then you said, "Short of committing
20 official misconduct, the sheriff answers only to the
21 voters, and only once every four years."
22 That's what you wrote, correct?
23 A. Correct.
24 Q. Okay. Are you aware of the provision that
25 provides for the voters to recall the sheriff, as well as
917
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 every other elected official in the city?
2 A. Yes, sir, I am.
3 Q. Okay. So, in fact, there is another way
4 besides an official misconduct proceeding that the
5 sheriff could be removed?
6 A. There is another way to do that, that's
7 correct.
8 Q. And that is the democratic way to do it?
9 MS. KAISER: Objection; argumentative.
10 MR. KOPP: Well, it involves --
11 COMMISSIONER HUR: I'm sorry, can I have the
12 question read back.
13 I was thinking about the objection. I didn't
14 want to get the answer in.
15 THE REPORTER: "And that is the democratic way
16 to do it?&qu
ot;
17 COMMISSIONER HUR: Overruled.
18 MR. KOPP: Q. I don't know if we got your
19 answer.
20 A. Could you repeat the question?
21 Q. Sure.
22 The other way to remove the sheriff would be
23 the democratic process where voters cast votes, right?
24 A. Yes, sir.
25 Q. Okay. Now, one of the other things that you
918
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 stated in your declaration, you found a lot of fault with
2 Sheriff Mirkarimi.
3 It's safe to say that, right?
4 A. Correct.
5 Q. All right. And you noted that
6 Sheriff Mirkarimi didn't take any corrective action and
7 did nothing to disavow improper conduct like witness
8 dissuasion, right?
9 A. Yes, sir.
10 Q. Okay. Did you see the text message where his
11 wife implored him to contact the ex-sheriff and use his
12 power to do something, and he responded that he could not
13 and would not do that?
14 A. I don't know that I saw that particular text,
15 sir.
16 Q. Okay. If that -- if I were to tell you that
17 there is such a text, would that change your opinion as
18 to whether or not he disavowed that kind of conduct?
19 A. No, sir, it would not.
20 Q. Okay. You also faulted the sheriff for his
21 refusal to cooperate with investigators, right?
22 A. Yes, sir.
23 Q. And is it your opinion that as soon as a
24 criminal investigation was undertaken by the
25 San Francisco Police Department that Sheriff Mirkarimi
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 was obligated to speak with them?
2 A. He has the same right as anyone else that's
3 accused of a crime, to take the Fifth if he so desires to
4 do that. Absent that, he would be required to have some
5 responsibility to assist and help them in their
6 investigation if possible, with some lawyers' advice.
7 Q. Now, when you say that he's got this obligation
8 to cooperate with law enforcement, that's based on the
9 police officer code of conduct, right?
10 A. I believe it's in their policy, as well as my
11 policy, and every other policy of the State of
12 California. You will cooperate in investigations with
13 other agencies. It's required. You can't operate
14 without agencies interacting.
15 Q. Right.
16 And -- but you would agree with me, that if a
17 person has a Fifth Amendment right, which is guaranteed
18 by the United States Constitution, that might trump a
19 departmental policy with a police department?
20 Q. Yes.
21 A. You would have the right to take the Fifth and
22 not cooperate, that's correct.
23 Q. Okay. And so when there's a criminal
24 investigation and criminal prosecution ongoing, a
25 person's entitled to not speak to the authorities, right?
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 A. That's correct.
2 Q. All right. Now, you've also made -- you
3 faulted the sheriff for the way that his firearms were
4 surrendered to the authorities after this Emergency
5 Protective Order was issued, right?
6 A. Yes, sir.
7 Q. Okay. Isn't it true the protective order just
8 stated that he was to turn over the firearms within, I
9 don't know, 24 or 48 hours to law enforcement?
10 MS. KAISER: Objection. No foundation.
11 COMMISSIONER HUR: Is that your recollection of
12 the document, sir?
13 MS. KAISER: Objection. No foundation that he
14 reviewed the document.
15 COMMISSIONER HUR: Why don't you lay some
16 foundation.
17 MR. KOPP: Sure.
18 Q. Did you ever look at the actual order for him
19 to turn over the guns?
20 A. I've never seen the order.
21 Q. Okay. And correct me if I'm wrong, but isn't
22 the purpose of that order to get firearms or any weapons
23 that may belong to someone suspected of a crime, such as
24 this, out of the hands of the person who is suspected and
25 into the hands of law enforcement?
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 A. Correct. To the investigating agency.
2 Q. Well, it doesn't really matter where they go,
3 as long as they get into the hands of law enforcement,
4 right?
5 A. Usually those orders are directed to an agency,
6 and it's their responsibility to collect those -- that
7 evidence.
8 Q. Okay. And you have the opinion that
9 Sheri
ff Mirkarimi misrepresented to the San Francisco
10 Police Department how many guns he possessed; is that
11 right?
12 A. My understanding of the information I received
13 that he said he had two guns, when clearly he was
14 registered for three.
15 Q. Okay. And if his statement actually was, "I
16 think I sold that one other gun a long time ago," and he
17 was merely mistaken about that fact, would that change
18 your opinion?
19 A. My belief is that I know where all my guns are.
20 All my friends know where their guns are. In this
21 business of law enforcement, you don't lose guns or
22 forget where they were.
23 Q. Well, you've heard the sheriff describe the
24 manner in which his guns were stored, correct?
25 A. Oh yes, correct.
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Q. And you don't find fault with the way he made
2 sure they were safely inoperable, and taped them, and
3 locked them, and all that, right?
4 A. No, I thought that was good. That was the
5 first I'd heard that, but I thought that was good.
6 Q. Right.
7 And that's how you would advise any peace
8 officer to store weapons, to make sure that they're not
9 dangerous for somebody to come upon and discharge
10 accidentally, right?
11 A. I tell everybody the same thing. I have a gun
12 safe and lock them up at night.
13 Q. Okay. That's -- that's like the gold standard,
14 but --
15 A. Gold standard --
16 Q. -- in fact, many law enforcement officers don't
17 follow that standard, right?
18 A. Sometimes.
19 Q. Okay. And there are peace officers who you
20 know of who may momentarily forget where they put a
21 weapon, particularly if they haven't used it in years,
22 right?
23 A. It's possible they could. I don't know of any,
24 but there may be.
25 Q. Okay. I mean, you'd agree with me that the
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1 human mind sort of -- over time you can forget certain
2 things, right?
3 A. Well, there's a difference between misplacing
4 the weapon, sir, and saying you sold it.
5 Q. Right.
6 So you base your opinion, your testimony on
7 that issue, based on what you've seen other people say
8 about whatever -- whatever the conversation was between
9 the sheriff and the San Francisco police inspectors,
10 right?
11 A. It's the only information I have to base it on,
12 sir.
13 Q. Okay. Now, you also have -- you've made your
14 comments that the sheriff didn't adhere to his own
15 department's ethical standards, right?
16 A. Yes, sir.
17 Q. Okay. And -- because he committed this act
18 with his wife and then he was charged and convicted of a
19 crime, right?
20 A. Correct.
21 Q. Okay. And let me ask you this. If there was
22 another -- if there was a deputy sheriff within the
23 San Francisco Sheriff's Department who fell below those
24 standards and wasn't terminated or, at least, suspended
25 for a very long time, would you say that the sheriff had
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 fallen below his standards for failing to adequately
2 discipline that deputy?
3 A. Yes. I believe the sheriff or chief would have
4 the responsibility to hold his personnel accountable.
5 And just as important, to have the courage to hold
6 himself accountable.
7 Q. And you've said that on -- people who were
8 involved in running the prison or the jail require that
9 the person have a clear criminal record and exemplary --
10 let me strike that question and start over.
11 You have stated in your declaration that the
12 standard for a person running a prison or jail requires
13 that the person have a clear criminal record and
14 exemplary personal conduct, right?
15 A. You talking about the sheriff, yes.
16 Q. Well, I mean -- no, I want to ask you.
17 Are you referring to the sheriff or anybody
18 working in the jail?
19 A. The sheriff.
20 Q. Okay. So it's okay if some of the jailers or
21 deputies who are subordinate, who are actually working in
22 the jail, if they have a criminal record and exemplary --
23 less than exemplary personal conduct, but it's not okay
24 if the sheriff has those characteristics?
25 A. I believe the sheriff has to have the higher
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 standard, a
nd then there would be individual instances or
2 cases where probably some people who have committed some
3 crimes are allowed to work because they're under close
4 supervision, because we can control the environment that
5 they work in while they're there in the police department
6 or the sheriff's department, and because we can place
7 them on what I call a Last Chance Agreement.
8 Any other violation would be instant
9 termination for that employee.
10 Q. Okay. Now, you also rendered the opinion that
11 because the sheriff has to maintain effective working
12 relationships with other government agencies that -- is
13 your opinion that it would be impossible for
14 Sheriff Mirkarimi to work with the other agencies in
15 San Francisco if he's not removed?
16 A. I didn't say that it was impossible. I'd say
17 that relationship is damaged.
18 And I can tell you from my experience, and then
19 from the other chiefs or sheriffs that I work with pretty
20 regular, that this relationship is vital, our working
21 relationship, and exchanging information, in
22 understanding that as we work together if there's an
23 issue or problem, we'll come to you quickly, because it's
24 a matter of trust between all the different agencies.
25 Once you start to break that trust down, you
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 don't quite work quite as well. By not working quite as
2 well, it puts the community in danger that we all serve.
3 Q. Okay. And your opinion is that
4 Sheriff Mirkarimi will be unable to rebuild these
5 relationships in the near term and perhaps not even in
6 the long term? That's what you wrote, right?
7 A. That's correct.
8 Q. Okay.
9 A. Accuse him of misconduct and some sort of
10 conspiracy, it creates some real problems for the other
11 agencies, especially when they're doing nothing more than
12 to try to do their job in the best and most professional
13 way they can.
14 Q. Okay. But you've been around long enough to
15 see that sometimes political opponents who wind up being
16 elected to elective office can be bitter rivals, bitter
17 enemies, and then later on they find a way to work
18 together, right?
19 A. I've seen that happen, yes, sir.
20 Q. Okay. So you're not going to testify that if
21 these removal proceedings don't end with the removal of
22 Sheriff Mirkarimi, you're not going to say that it will
23 be impossible for him to rebuild these relationships?
24 A. I don't believe there's anything impossible,
25 but the amount of time it takes to rebuild those
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 relationships, or the trust that you have to keep within
2 a community, takes a long period of time. And an
3 incident may take place where you need that cooperation
4 today or tomorrow, not a year from now, not two years
5 from now.
6 It's -- it's critically important, sir, that we
7 work together well and effectively.
8 Q. Okay. And now, within the sheriff's department
9 itself, I mean, that's -- that's like a command
10 structure. It's like a paramilitary organization, right?
11 A. Yes, it is.
12 Q. People are given orders and they follow them,
13 right?
14 A. It's got rank structure.
15 Q. Okay. And you have no reason to believe that
16 if Sheriff Mirkarimi retains his office, his subordinates
17 will defy his orders?
18 A. It is my true and honest belief, sir, that the
19 officers, deputies, they desperately want the chief to be
20 the person that they can be proud of. And they want to
21 be able to hold him up or hold her up and say, "This is
22 the person we work for." They want to do that with the
23 ability to be true and honest when they say that.
24 And when you break that bond of trust, when you
25 don't lead by example, not from what you say, but from
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 what you do every single day -- we're probably the most
2 watched people in America, police chiefs and sheriffs --
3 you lose credibility with them. And once you lose
4 credibility, and say we're going to be like you, then
5 it's a problem.
6 As they say, there's two standards. One for
7 the sheriff and one for us.
8 Q. Okay. Have you spoken with any deputy sheriff
9 here in San Francisco that says, "Hey, if
10 Sheriff Mirkarimi comes back to the job, I'm not going to
11 do what he orders me to do"?
12 A. I have not talked to any of the deputy sheriffs
13 in your police department. But I have talked to deputy
14 sheriffs and other agencies. And certainly within the
15 major city chiefs, the 63 largest agencies in America,
16 that's from New York to Chicago, from Las Vegas to
17 Sheriff Doug Gillespie, or the largest sheriff's
18 department in the country, Lee Baca, and I think the
19 finding would be exactly the same. They want that person
20 to be above reproach.
21 MR. KOPP: Okay. I'm going to move to strike
22 everything after the first clause as nonresponsive.
23 COMMISSIONER HUR: Granted.
24 MR. KOPP: Thank you, Chief. I have nothing
25 further.
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1 COMMISSIONER HUR: Redirect, Miss Kaiser?
2 MS. KAISER: Yes.
3 ---oOo---
4 REDIRECT EXAMINATION BY MS. KAISER
5 MS. KAISER: Good afternoon, Chief.
6 A. Good afternoon.
7 Q. If the officer or deputy who is being
8 investigated by a law enforcement agency chooses to take
9 the Fifth instead of cooperating with the investigation,
10 did that -- does that have the same consequences
11 internally for that officer's discipline?
12 A. There are two investigations that take place in
13 any discipline with a person other than the chief and/or
14 the sheriff.
15 And the second part of that is the
16 administrative investigation. You have a criminal
17 investigation that takes place and that officer or deputy
18 can take the Fifth and work only with their attorney and
19 present whatever case they would like to present.
20 But you also have an internal investigation.
21 And that's the Internal Affairs part. And we have what
22 we call reverse Miranda. Which means, once we reverse
23 Mirandize you, you must talk to us. And if you don't
24 talk to us and tell us the information that we're looking
25 for in an honest and clear fashion, you could be
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1 terminated for insubordination for that and that alone,
2 for not cooperating in the administrative proceeding.
3 That doesn't apply to the sheriff or the chief.
4 Q. Why is it important to have such a harsh rule?
5 A. Because the -- the business of law enforcement,
6 it's a noble profession. It's a gift. People give us a
7 trust. And every time we send an officer out on the
8 street or deals with a deputy who's working in the jails,
9 you've got to trust what they do.
10 And if you have a belief that they've committed
11 some misconduct that is criminal in nature, you have an
12 obligation to investigate it and get the information as
13 quickly as possible, to make the decision you're either
14 going to keep that person or you're going to move that
15 person or you're going to take some disciplinary action
16 to correct it so that people in the jail and/or the
17 people in the public, the community we serve, are treated
18 fairly and honestly every single day.
19 Q. Moving on to the order that required the
20 sheriff to disarm and surrender his weapons.
21 Mr. Kopp was asking you, isn't it sufficient,
22 doesn't it disarm the batterer if he gives his guns to
23 law enforcement, doesn't it just say law enforcement.
24 Maybe -- that's basically the gist of the testimony as I
25 remember it, and you can correct me if that's incorrect.
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1 Why doesn't, if it doesn't, a protective order
2 like that say you must surrender your firearms to a
3 different law enforcement agency than the one that you
4 run?
5 A. Because the chief investigators, those that are
6 working on the case, want control of those items.
7 Because there may be more to the case that we're not
8 aware of at that time. It's not only the battery that
9 you're looking at, at that time, but whether or not there
10 are other cases or issues that may involve those weapons.
11 The possibility of that happening are remote, but
12 certainly real.
13 Q. As the chief of a police department, if you
14 gave your firearms to a subordinate officer, would you
15 have the authority to get them back?
16 A. I have no doubt that if I went to one of my
17 officers --
18 COMMISSIONER HUR: Hold on.
19 MR. KOPP: Objection --
20 COMMISSIONER HUR: What's the objection?
21 MR. KOPP: No foundation.
22 COMMISSIONER HUR: He's an expert. I'll
23 overrule it.
24 THE WITNESS: I have no doubt that if I went to
25 one of my officers, the Chief of Police of the San Diego
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1 Police Department, and said, "Give me the guns," he would
2 give them t
o me.
3 MS. KAISER: Q. You mentioned something
4 called a Last Chance Agreement.
5 What's that?
6 A. In the system of discipline that we have,
7 across California, most of the time it's progressive
8 discipline. It builds on itself until you get to the
9 point where you're going to terminate someone, because
10 that's a very serious response, misconduct within a
11 police department.
12 And in many cases what we do is -- like drunk
13 driving is probably a good example. If somebody is
14 arrested and convicted for driving under the influence,
15 they may be suspended.
16 They may be put on what we call Last Chance,
17 which means, if they agree not to be terminated and if
18 they agree, you know, at least in our department, to
19 periodic drug testing looking for alcohol, they could
20 retain their job. But if they have any other violation
21 that relates to DUI, drunk driving, or coming to work
22 under the influence, then they would be immediately
23 terminated and they have no recourse to go through civil
24 service. It's a Last Chance Agreement. It says, this is
25 serious what you've done and our response is very serious
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1 to management.
2 Q. If you were convicted, let's say, of DWI or,
3 you know, driving under the influence, would you enroll
4 yourself in your Last Chance Agreement program?
5 A. Yes. If I was arrested?
6 Q. If you were arrested.
7 A. Oh, I'd be fired. I'm an at-will employee.
8 There's no second-guessing on that. If I had an option,
9 I would. But I wouldn't get that option.
10 And the truth is that -- I can't say it
11 stronger -- it's a gift being a chief or a sheriff. It's
12 a responsibility and it comes with awesome authority. We
13 set policy. We set the procedures in place. We say
14 what's important, what's not. We organize priorities.
15 We protect the communities. We move people around on a
16 daily basis.
17 And in order to do that you've got to have a
18 couple of things. You've got to have the trust and
19 support of the politicians that you work for.
20 You've got to have the trust and support of the
21 officers.
22 And you've got to have the trust and support of
23 the community that we serve. All three legs. And if you
24 lose the trust of any two of those, it's time to remove
25 yourself from your position. Being arrested as a chief
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 of police, in my experience, they have left gracefully.
2 If I was arrested for DUI, I would leave the
3 department gracefully. Because the damage I would do to
4 this department would be incredible. I could not repair
5 it in the time that I have left in this -- in this
6 wonderful business of law enforcement.
7 Q. Would you compare overcoming political
8 rivalries with being a convicted criminal making
9 accusations against coordinate criminal justice agencies?
10 Is that the same caliber of dysfunction that
11 you could overcome? Do I need to -- do I need to restate
12 it?
13 A. Please, if you could restate that. It's just a
14 little complex.
15 Q. Yes, it is. I'm sorry. My fault.
16 You were asked if you were aware of whether
17 elected politicians who had rivalries were sometimes able
18 or often able to overcome them and work together
19 effectively and mend broken fences?
20 A. Yes.
21 Q. Do you think that that is the same sort of
22 problem that Sheriff Mirkarimi would have coming back to
23 his position and working with other criminal justice
24 agencies like the D.A. or the police or adult probation?
25 Is it like political rivalry or is there
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1 something else, something more in this situation?
2 A. There's a lot more in this situation. You're
3 talking about public safety and our relationship and how
4 we work together and how important it is to have that
5 trust. Because when we're standing together on a street
6 or in a riot or Occupy Movement that we had, you've got
7 to trust that person standing next to you to cover your
8 back. And you've got to have a belief that both of you
9 have the same desire, to get through that incident as
10 effectively and quickly and as safely as you possibly
11 can, and still hold the -- the understanding that this
12 gift that we give is a trust for the community, to be
13 able to manage it.
14 Q. Does it matter to you that Sheriff Mirkarimi
15 pleaded guilty to domestic violence? Is that the same in
16 your mind, to rephrase, as simply being accused or does
17 it carry more significant weight in yo
ur opinion?
18 A. It certainly carries more weight. He did the
19 issue. He pled to the crime. I admire him for doing
20 that. But it says he did it. He committed an incidence
21 of domestic violence.
22 Domestic violence is one of those things that
23 we treat very seriously across California and the nation.
24 It's very clear. That my understanding is one out of
25 four of all the women in America are a victim at one
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 time --
2 MR. KOPP: Objection. This part is
3 nonresponsive.
4 COMMISSIONER HUR: Are you making a motion to
5 strike it?
6 MR. KOPP: Yes, everything after the first
7 sentence.
8 MS. KAISER: I disagree. I asked him -- well,
9 we can read the question back if you'd like.
10 COMMISSIONER HUR: Can you actually read the
11 answer.
12 THE REPORTER: "It certainly carries more
13 weight. He did the issue. He pled to the
14 crime. I admire him for doing that. But it
15 says he did it. He committed an incidence of
16 domestic violence.
17 Domestic violence is one of those things
18 that we treat very seriously across California
19 and the nation."
20 COMMISSIONER HUR: You can stop right there.
21 Everything from domestic violence is a serious offense
22 across the nation, that part is struck -- stricken. It's
23 been a long day already.
24 Please proceed.
25 MS. KAISER: Q. In your mind does it make a
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 difference that he pled guilty and was convicted of
2 domestic violence as opposed to a DUI?
3 A. I think domestic violence is a crime that is
4 more than just an accident or a one-time incident. I
5 think it's significant when you look at domestic violence
6 that it is a behavior that needs to be corrected over a
7 long period of time.
8 I think that when you plead guilty to domestic
9 violence, my understanding and my experience shows me
10 that usually when you have a victim report domestic
11 violence, it's not the first time.
12 MR. KOPP: This part is nonresponsive.
13 COMMISSIONER HUR: Why don't we let the witness
14 finish the answer and then I'll entertain the motion to
15 strike.
16 THE WITNESS: It's not the first time. Usually
17 they -- they develop the courage to step forward and
18 report that incident about the sixth or seventh time that
19 it occurs.
20 COMMISSIONER HUR: Are you making a motion?
21 MR. KOPP: Yes.
22 COMMISSIONER HUR: Everything after it's the
23 first time is stricken. I'm sorry, I think he said,
24 "It's not the first time." That part from there forward
25 is stricken from the record.
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Please proceed.
2 MS. KAISER: Q. Do you have any other
3 concerns about the fact that a sheriff would have
4 committed domestic violence as opposed to some other kind
5 of crime like DUI?
6 A. Yes, I do. It's a crime that is violent in
7 nature. That it is about control and power. And that as
8 I talk about behavior, it's a behavior. There's a
9 tendency to use that controlling power to their own
10 benefit.
11 Q. And why are those things concerning?
12 A. Because you're in a position to use controlling
13 power every single day.
14 Q. Do you have an opinion about why it may or may
15 not be important to victims or witnesses that the chief
16 law enforcement officer committed domestic violence?
17 A. Yes, I do.
18 Q. And what's that opinion?
19 MR. KOPP: Objection. No foundation; calls for
20 speculation.
21 COMMISSIONER HUR: No foundation. I mean,
22 that's -- the whole thing is about that. That
23 objection's overruled.
24 You may answer.
25 THE WITNESS: Could you repeat the question?
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 MS. KAISER: Madam Court Reporter.
2 THE REPORTER: "And what's that opinion?"
3 MS. KAISER: Can you read the prior question,
4 please.
5 THE REPORTER: "Do you have an opinion about
6 why it may or may not be important to victims
7 or witnesses that the chief law enforcement
8 officer committed domestic violence?"
9 THE WITNESS: Yes, I do.
10 MS. KAISER: Q. And what is that opinion?
11 THE WITNESS: My opinion is this: Is that
12 there are lots of victims of domestic violence and
13 they're frightened to report it. And they want to know
14 that the police department is going to be responsive, in
15 a compassionate and caring way, that they won't become
16 the victims, but they will be somebody that that
17 department or agency or sheriff steps forward to be able
18 to manage that and make sure that their interest and
19 their life is protected in the process.
20 And as you look at that concept, if a person
21 that they need to trust the most is the chief executive
22 law enforcement executive, because they don't often see
23 the people who do the work every single day, but you see
24 the sheriff and you see the police chief in the news
25 every single day, at least almost every single day, and
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 as you see that, that person is the personification of
2 what law enforcement's all about, and that's the person
3 that you have to trust.
4 And if you have a belief that they're somehow
5 biased or unresponsive or not compassionate in the
6 process, they won't report it. And you want to reach out
7 and make sure that the victims of domestic violence are
8 encouraged to step forward and be able to report it.
9 Q. Do you think it's possible to violate the
10 standard of professional conduct for a chief law
11 enforcement officer by failing to do something?
12 A. Yeah.
13 Q. Do you think that Sheriff Mirkarimi has failed
14 to do things that you would have expected and that you
15 believe would have been required of a chief law
16 enforcement officer in this case?
17 A. I do.
18 Q. Could you give me an example of such a thing?
19 A. It is my belief after reading the declarations
20 and certainly looking at the case itself, that there were
21 several issues that I would be extremely concerned with,
22 in any sheriff or any police chief, as a professional in
23 this business, as someone who teaches ethics and process,
24 you've got to encourage victims to step forward.
25 In this case, I was taken back. I read the
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1 reports of Miss Ivory Madison. In my view, as a
2 professional in this business, this is a true hero that
3 stepped forward, reached out to try to help somebody in
4 need, in a compassionate and caring way --
5 MR. KOPP: Objection. It's nonresponsive.
6 COMMISSIONER HUR: The objection's sustained.
7 MR. KOPP: Strike that part?
8 COMMISSIONER HUR: That part is stricken.
9 Let's proceed by question/answer, please,
10 Miss Kaiser.
11 MS. KAISER: Q. You were testifying about the
12 fact, as I understand it, that it concerned you -- that
13 something about the treatment of Ivory Madison concerned
14 you in regard to some element of the sheriff's failure to
15 act.
16 Could you explain that connection to me,
17 please?
18 A. It's my belief that the sheriff should have
19 defended someone who stepped forward to help his wife
20 when she was in need.
21 Q. Why do you believe that Ivory Madison helped
22 his wife instead of betraying or disrespecting her?
23 A. It is my belief that Miss Lopez went to her
24 because she was frightened and scared. And she needed
25 somebody to sit with and say, "What do I do?" And she
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1 got exactly that, somebody that tried to assist and help
2 her and step forward.
3 And I think that the sheriff should have
4 stepped forward and congratulated and thanked
5 Miss Madison, not got into a position to allow some of
6 the things that occurred or seemed to question her
7 credibility or to attack her as a person.
8 Q. When a -- when a witness comes forward to
9 report a crime, do you look into that witness' or that
10 reporting witness' character or whether she ever wrote a
11 comic book or her political beliefs or anything like
12 that?
13 A. No. We take the statements that they bring to
14 us at face value.
15 Q. You don't believe you need to investigate the
16 nature of the reporting witness?
17 A. We look --
18 Q. I just want to make sure I understood properly.
19 A. The only thing that we would look at to see if
20 there were any other reports that she may have had in
21 process. If there's anything else that causes us
22 concern.
23 But if it's just a witness that steps forward,
24 we congratulate them in every single case. We encourage
25 it.
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1 Q. Does law enforcement depend on crimes being
2 reported?
3 A. You could not operate in a sheriff's
4 department, you could not operate in a police department,
5 without the cooperation and assistance of those people
6 who courageously step forward and bring us the
7 information. And do one other thing, are willing to
8 testify.
9 And those are the people you really need to
10 encourage. Because if you don't, it's a chilling effect
11 on the rest of the city or the rest of the area that we
12 police.
13 Q. Do you believe that it's important to treat
14 complaining witnesses respectfully in order to encourage
15 them to come forward and to testify if necessary?
16 A. I do.
17 Q. Have you ever had an experience in your years
18 as a chief law enforcement officer where a victim or
19 witness was not treated respectfully and that discouraged
20 them from cooperating?
21 A. I have.
22 Q. Can you describe one of those instances,
23 please?
24 A. I can tell you several instances in the City of
25 San Diego or in the City of San Jose or in the City of
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 Richmond where they have instances of gang violence and
2 where it's very difficult. Most importantly, one I saw
3 was in the City of Richmond, California, where they had a
4 very high crime rate, a very high homicide rate, and the
5 reason we were unable to solve them when I got there was
6 because the witnesses were terrified and afraid to come
7 forward. They didn't trust the police.
8 It took us almost a year of hard work, of
9 reorganizing the organization, of stressing from my
10 level, that we're going to work with the community, that
11 we're going to encourage information coming our way, that
12 we're going to be part of the community, not someone that
13 just visits it. And we were able to bring that homicide
14 rate down by 50 percent in that first year because those
15 witnesses and victims stepped forward.
16 Q. Would it matter, in your opinion, in terms of
17 what the sheriff was required to do or not do that he
18 personally didn't make attacks on Ivory Madison, but say
19 his attorneys in this proceeding did? Is that less
20 culpable?
21 A. It's my belief in reading the reports that he
22 was in a position to stop it and he did not do that.
23 MS. KAISER: Thank you.
24 COMMISSIONER HUR: Recross, Mr. Kopp?
25 MR. KOPP: Just briefly.
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1 ---oOo---
2 RECROSS-EXAMINATION BY MR. KOPP
3 MR. KOPP: Q. Chief Lansdowne, I think you
4 said that -- you were asked a moment ago that if you got
5 arrested for a DUI and got convicted, whether or not
6 you'd enroll in this Last Chance program. And you said,
7 "If I had the option, I would enroll in the Last Chance
8 program," right?
9 A. Yeah. I got a little confused, and my
10 apologies, sir.
11 I was thinking to the advice that I give to the
12 officers that step forward and say that we were -- we did
13 that and this gives them a chance to do what they're
14 going to do.
15 I would resign.
16 Q. So you'd resign?
17 A. Yes.
18 Q. But it's okay for the -- your subordinates to
19 enroll in the Last Chance --
20 A. They have that option.
21 MR. KOPP: Thank you. I don't have anything
22 further.
23 COMMISSIONER HUR: Questions from the
24 Commissioners of Mr. Lansdowne?
25 Commissioner Studley.
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1 COMMISSIONER STUDLEY: Thank you very much.
2 Thank you for being here, Chief.
3 THE WITNESS: Thank you.
4 COMMISSIONER STUDLEY: I am interested in the
5 standard of conduct that we are expected to apply and I
6 wonder if you could help us.
7 In your experience is or should the standard of
8 conduct -- our Charter says conduct that falls below the
9 "standard of decency, good faith, and right action,
10 impliedly required of all public officers." I'm
11 wondering whether that should be a city, regional, state,
12 national, or other standard that we should be applying?
13 Is that a clear enough question?
14 MR. KOPP: And I hate to do it, but I have to
15 interpose an objection that this is the wrong witness to
16 be asking.
17 So I would object that there isn't any
18 foundation for him to give that answer and it calls for a
19 legal conclusion.
20 COMMISSIONER HUR: Your objection is noted. It
21 is overruled.
22 THE WITNESS: I believe it is a standard across
23 California. San Francisco is just unique. They codified
24 it.
25 COMMISSIONER STUDLEY: So you're saying you
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1 would apply a state standard in understanding that
2 definition?
3 THE WITNESS: Absolutely. I believe that would
4 raise the bar for the entire state.
5 COMMISSIONER STUDLEY: On Page 17 of your
6 testimony, you talk about risk management. And you said
7 that -- just a minute -- the sheriff's conviction and
8 criminal probation compromised the ability of
9 San Francisco Sheriff's Department personnel to
10 effectively testify in criminal proceedings and presents
11 serious legal risk for the sheriff's department in civil
12 litigation.
13 I wonder if you could explain what you mean by
14 that a little bit further?
15 THE WITNESS: Okay. They have a Brady list
16 across the State of California. The city attorneys and
17 the district attorneys have all got together. The Brady
18 list is a list that has all the officers who have
19 something that would cause concern in a criminal trial.
20 Conviction would be one, untruthfulness would be another
21 one in the Brady list.
22 And what it means is this: That every time you
23 testify in court, if you're in a civil case or criminal
24 case, the district attorney or the city attorney would
25 advise the court that in your background is an issue of
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1 concern.
2 The example for the sheriff if he stayed, if
3 there was an issue of domestic violence, they would step
4 forward, I believe, and say that, "This case you need to
5 look at to help you make your decision as you judge the
6 testimony of the sheriff."
7 COMMISSIONER STUDLEY: Excuse me. In that
8 sentence, who is "you" when you're saying this is an
9 issue that you need to look at? Who are you referring
10 to?
11 THE WITNESS: It would be the district attorney
12 talking to the courts. They're required to notify them
13 so there's disclosure. And that never goes away.
14 COMMISSIONER STUDLEY: If this is an acceptable
15 question, wouldn't that be rebuttable or distinguishable
16 if the person -- I understand that that's a flag. But
17 could that be rebutted by being clear in the testimony or
18 demonstrating that one was not testifying falsely or so
19 forth?
20 THE WITNESS: Yes, sir (sic). They would have
21 a chance in court to rebut it, but the defense would be
22 required to know about it before the trial starts.
23 COMMISSIONER STUDLEY: I have just a few more
24 questions.
25 COMMISSIONER HUR: Okay.
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1 COMMISSIONER STUDLEY: You have raised the --
2 you have suggested that a law enforcement officer
3 should -- you raised some questions about
4 Sheriff Mirkarimi's discovery activities, the defense
5 that he was mounting as a criminal defendant.
6 And I wonder if you could help us understand
7 how an individual who has certain rights in any criminal
8 proceeding can mount a legal defense on his own behalf
9 and continue to meet the standard of conduct to -- as you
10 described it, to support and cooperate with the
11 administration of justice?
12 I think that's one of the challenging dilemmas
13 that we have to review.
14 THE WITNESS: Absolutely. Everybody has the
15 right to an attorney and representation and make the
16 decisions on how they want to manage that case as it
17 proceeds through the courts. That's something that's
18 guaranteed to them.
19 If they're not guilty, there's still an
20 internal issue to take place. But it doesn't refrain
21 them from doing that.
22 My issue was this: Is that there is some
23 requirement, and it was with the guns, to step forward.
24 And if they're required or at least asked for -- they got
25 a subpoena to do it. They should come and respond and
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1 give those up. It's evidence they're asking for as a
2 court order.
3 COMMISSIONER STUDLEY: So your concern is not
4 with mounting a defense or explaining what your behavior
5 was or
not agreeing to four charges but pleading to a
6 single charge, it was specific things that you understood
7 demanded a response like the subpoena -- like the request
8 to come forward with the guns?
9 THE WITNESS: Correct.
10 COMMISSIONER STUDLEY: You also commented about
11 a law enforcement officer's criticism or expression of
12 lack of confidence in the criminal justice system.
13 And I wonder if you could do the same thing,
14 help us reconcile the abilities both of free speech and
15 criticism, public statements of one's belief, with the
16 responsibility to meet a law enforcement officer's
17 standard of conduct, as you understood it in this
18 situation?
19 THE WITNESS: I think we need to be
20 professional at all times as a chief law enforcement
21 person. I believe this. And it's not just my belief,
22 but the other chiefs that I deal with. Is that you have
23 a right of freedom of speech. But to attack the system,
24 if it's unwarranted, if all they're doing is their job,
25 is misconduct on their part and unprofessional.
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1 COMMISSIONER STUDLEY: And finally, you spoke
2 about the affirmative duty of a law enforcement officer
3 to ensure the integrity of investigations, and I -- and
4 to treat legal proceedings, including those for domestic
5 violence, with appropriate gravity.
6 I wonder if you could just explain to us what
7 you meant about that affirmative duty and treating
8 charges with gravity?
9 THE WITNESS: Yeah. Understanding that -- that
10 the process, your responsibility to be professional, and
11 understanding that committing a crime on the part of law
12 enforcement personnel is a very serious matter, and that
13 you need to manage that effectively and well, but within
14 the confines of what the law says you can do.
15 There becomes a point, I believe, where you
16 begin to attack the system instead of dealing with the
17 issue or the problem. And the problem is the defense.
18 The defense should be managed well and effectively.
19 COMMISSIONER STUDLEY: Thank you very much. I
20 appreciate it.
21 COMMISSIONER HUR: Other questions for Chief
22 Lansdowne?
23 Commissioner Renne.
24 COMMISSIONER RENNE: Good afternoon, Chief.
25 THE WITNESS: Good afternoon, sir.
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1 COMMISSIONER RENNE: Following up on the
2 questions about Paragraph 58, on Page 17, about the risk
3 management. And you talked about Brady requirements.
4 THE WITNESS: Yes.
5 COMMISSIONER RENNE: That would only apply if
6 the sheriff himself were personally going to be a witness
7 in the matter; isn't that correct?
8 THE WITNESS: That's correct.
9 COMMISSIONER RENNE: And so that -- how does
10 the fact that the sheriff in this case has been convicted
11 of a misdemeanor, how does that affect the ability of any
12 of the sheriff personnel appearing as witnesses in cases?
13 THE WITNESS: Oh, it doesn't. It would only be
14 when the sheriff is the one that's going to testify.
15 COMMISSIONER RENNE: Did you take into account
16 in forming your opinions the fact that Sheriff Mirkarimi
17 was elected rather than appointed?
18 THE WITNESS: Yes, sir, I did.
19 COMMISSIONER RENNE: And what effect, if any,
20 does that have on your opinions?
21 THE WITNESS: It's my belief that the standard
22 of behavior, the ethics, the integrity, the trust is
23 exactly the same whether you're the sheriff or you're a
24 police chief, elected or appointed.
25 COMMISSIONER RENNE: So that the -- that you
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1 don't think the factor to be taken into account in the,
2 say, suspension or removal of an elected official is any
3 different than would be true of an appointed official?
4 THE WITNESS: The only difference that I would
5 see, in some counties they don't have the ability to
6 remove somebody other than a recall in the process.
7 But the standard, this ethical conduct, this
8 integrity, being the same person on duty as you are off
9 duty, this trust that we talk about, sir, is exactly the
10 same. You're the head law enforcement person, sheriff of
11 a county.
12 COMMISSIONER RENNE: Thank you.
13 COMMISSIONER HUR: Any other questions for
14 Chief Lansdowne?
15 I have some questions, sir.
16 I want to go back to your testimony about what
17 you believe the sheriff affirmatively needed to do with
18 respect to the press and media attention that
19 Miss Madison was receiving.
20 So I want to give you a hypothetical s
ince
21 you're an expert.
22 THE WITNESS: Yes, sir.
23 COMMISSIONER HUR: If the sheriff did not tell
24 the press to harass Miss Madison, is it your opinion that
25 we should find official misconduct because he didn't take
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ETHICS COMMISSION MEETING - SHERIFF ROSS MIRKARIMI
1 affirmative steps to protect her from such harassment?
2 THE WITNESS: I don't think this case is
3 complex. And I know we're all --
4 COMMISSIONER HUR: I just want an answer to my
5 question, so...
6 THE WITNESS: On that -- on that alone the
7 answer is no.
8 COMMISSIONER HUR: If the sheriff had put
9 pressure on reporters, let's say, to call Miss Madison
10 with story ideas, and the sheriff then failed to stop
11 those reporters -- the question in and of itself is
12 getting complex. Let me try again.
13 If the sheriff told reporters to call
14 Miss Madison with story ideas and the press did so, is
15 that official misconduct by a sheriff?
16 THE WITNESS: No.
17 COMMISSIONER HUR: So what, then, should the
18 sheriff have done -- what should he have prevented in
19 your opinion and why does that amount to official
20 misconduct?
21 THE WITNESS: It is my opinion, sir, as an
22 expert, that he should have stepped forward and said he
23 appreciates Miss Madison stepping forward and thank you.
24 COMMISSIONER HUR: So it's his failure to do
25 that that you think constitutes official misconduct,
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1 among other things? His failure to step up and say -- to
2 commend her for stepping up is in your mind official
3 misconduct?
4 THE WITNESS: I thought he should have defended
5 her, yes, sir.
6 COMMISSIONER HUR: So, yes, it is official
7 misconduct?
8 THE WITNESS: Yes, sir.
9 COMMISSIONER HUR: And as you can tell from the
10 questions of the Commissioners, we're struggling with the
11 notion --
12 THE WITNESS: Absolutely.
13 COMMISSIONER HUR: -- of what official
14 misconduct really is and how it relates to the duties.
15 And so in probing that, what wrongful conduct
16 could a sheriff engage in that, in your mind, is not
17 official misconduct?
18 THE WITNESS: Not to be arrested for a crime;
19 not to commit domestic violence.
20 COMMISSIONER HUR: I'm talking about wrongful
21 conduct that, in your mind, does not constitute official
22 misconduct.
23 Do you understand my question?
24 THE WITNESS: I'm trying to understand it.
25 COMMISSIONER HUR: Let me try again.
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1 MS. KAISER: Commissioner, I'm sorry. It may
2 be easier for this expert, given the nature of his
3 expertise, not to try and answer the legal question about
4 what is official misconduct, but -- but maybe to testify
5 about the question he's here to testify about, which is
6 the standard of conduct for a law enforcement officer.
7 COMMISSIONER HUR: It's a good point and I'm
8 going there. Thank you.
9 MS. KAISER: Thank you.
10 COMMISSIONER HUR: So what wrongful conduct
11 could a sheriff engage in that, in your mind, doesn't
12 relate to this duties as sheriff?
13 THE WITNESS: I think all wrongful conduct
14 would be problematic. But the issue of whether or not it
15 meets the criteria that you're asking, if it's official
16 misconduct --
17 COMMISSIONER HUR: Well, that's not -- I
18 rephrased --
19 THE WITNESS: Yeah.
20 COMMISSIONER HUR: -- because counsel had a
21 good point.
22 What we're trying to find out is: Does the
23 wrongful conduct relate to the duties?
24 And what I'm hearing from your testimony is
25 that, basically, any wrongful conduct, in your mind, by a
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1 sheriff is going to relate to his duties because of how
2 wide ranging his responsibilities are?
3 THE WITNESS: Oh, I see what you're saying.
4 COMMISSIONER HUR: Is that your testimony? Or
5 is there, in your mind, wrongful conduct that would not
6 relate to the sheriff's duties?
7 THE WITNESS: No, I think wrongful conduct
8 damages the reputation of the organization that you
9 represent and the position that you hold.
10 COMMISSIONER HUR: Thank you.
11 Okay. I think that clarifies some o
f my
12 questions.
13 Any other questions from the Commissioners?
14 Do counsel have any questions in light of the
15 questions from the Commissioners?
16 MR. KOPP: No.
17 MS. KAISER: No, sir.
18 COMMISSIONER HUR: Okay. I think we should
19 excuse Chief Lansdowne.
20 Thank you for your time, sir.
21 THE WITNESS: Thank you for inviting me.
22 COMMISSIONER HUR: Okay. So that concludes the
23 scheduled witnesses we had today.
24 I think there is some additional business we
25 should -- we should conduct.
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1 Do the parties have anything they'd like to
2 raise?
3 MR. KOPP: I think we already have our schedule
4 established.
5 COMMISSIONER HUR: Do you have anything to
6 report on Miss Lopez and the mayor's office's willingness
7 or unwillingness to pay for her travel?
8 MR. KEITH: I don't, Commissioner. This is
9 something I just haven't had a chance to consult with the
10 mayor on yet.
11 COMMISSIONER HUR: Okay. When do you think
12 you'll be able to know that?
13 MR. KEITH: I -- I'll need to see if he's
14 available this afternoon. I think with our earlier
15 disturbance, I don't know how that's effected things.
16 So --
17 COMMISSIONER HUR: Understood.
18 MR. KEITH: But I certainly -- if I can't reach
19 him this afternoon, I'll make efforts to get in touch
20 with him early next week.
21 COMMISSIONER HUR: That would be helpful, I
22 think. Obviously Miss Lopez's -- how she testifies is
23 going to affect many logistics. So it would be helpful
24 to know that sooner rather than later.
25 MR. KEITH: Okay. And if it turns out that we
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1 want to pursue the remote testimony route, do we have
2 permission to just contact staff directly to talk about
3 facilitating that?
4 COMMISSIONER HUR: You do. And I would
5 actually ask if Miss Canny is willing to also be
6 available for that sort of consultation.
7 MS. CANNY: Yes, Commissioner. And I'll get
8 that fixed declaration in by Monday.
9 COMMISSIONER HUR: Thank you.
10 One thing that is looming on the horizon for us
11 as we get through this testimony, is how, as a practical
12 matter, a five member Commission is going to rule on
13 findings of fact.
14 We are not in a position to receive a list of
15 200 proposed findings of fact and rule on each one. You
16 can imagine that that would just be impractical.
17 So I welcome proposals from the parties on how
18 to deal with that. I have some ideas myself, but I'd
19 love to hear yours if you have any.
20 MR. KEITH: We'll just try to keep it short. I
21 mean, I think it's hard to say that we only need 30
22 findings, we only need 10.
23 I think knowing what -- what pressure the
24 Commission is under, I think we would probably state the
25 Commission's ultimate factual conclusions that we would
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1 propose, and then the supporting evidence that would
2 support those ultimate factual conclusions, just to keep
3 it as brief as possible with regard to the factual
4 findings.
5 COMMISSIONER HUR: Mr. Kopp?
6 MR. KOPP: I think the Commission could vote on
7 each one of the counts. I mean -- I guess I'm
8 unpersuaded by the need to make findings of fact. I
9 think -- I mean, the way that I would --
10 COMMISSIONER HUR: I mean, that's one of the
11 jobs that we have under the Charter. So we've got to
12 make findings of fact.
13 MR. KOPP: Well, but it doesn't say -- does it
14 say in there that you have to make findings of fact? I
15 think it says you have to make a recommendation.
16 COMMISSIONER STUDLEY: Assemble a record?
17 What's the phrase?
18 MR. KOPP: Assem --
19 COMMISSIONER STUDLEY: Mr. Emblidge, what's the
20 phrase?
21 MR. KEITH: Transmit the full records --
22 COMMISSIONER STUDLEY: We have two jobs.
23 MR. KEITH: Yeah.
24 MR. KOPP: Make a recommendation --
25 COMMISSIONER HUR: Okay. One at a time.
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1 MR. KEITH: Oh, I'm sorry.
2 MR. EMBLIDGE: You can transmit a full record
3 to the Board along with recommendations.
4 However, you are the fact-finding body, not the
5 Board of Supervisors. So, presumably, a part of that
6 full record could be findings of fact.
7 COMMISSIONER HUR: Okay. I stand corrected.
8 MR. KOPP: I don't presume that. I'm sorry to
9 disagree with Mr. Emblidge, but I think it could be done
10 without this type of burdensome preparation and
11 consideration.
12 I would just suggest that you vote on each one
13 of the counts and make a recommendation. And I think
14 that -- well, I mean, I have my own ideas about what that
15 recommendation could look like, but it's probably not the
16 time to raise that. But I just don't see the need to --
17 to do this kind of a process that might make sense in
18 another tribunal, when it's not mandated.
19 COMMISSIONER HUR: Here is -- here is one
20 proposal.
21 There are factual allegations in the charges,
22 Paragraphs 4 through 31. Upon reading them, it appears
23 to me, and after seeing the mayor's case which is now in,
24 it doesn't seem like many of those are disputed.
25 I think the ones that are likely disputed are
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1 the key facts that we need to adjudicate and that will
2 form the basis of any recommendation we make to the
3 Board.
4 So what I would propose, Mr. Kopp, is that in
5 the interim while we have a few weeks before you put on
6 your case, you let us know what -- what paragraphs are in
7 dispute and which are not, and that way the Commission, I
8 think, could focus its resources on adjudicating the
9 facts that truly are in dispute, and then applying them
10 to the charges that are -- that are at issue.
11 I'm not saying that after you do that we won't
12 let you make some proposed findings or let the mayor make
13 some proposed findings. But that might help narrow the
14 issue now that you've seen the mayor's case.
15 MR. KOPP: Just so I'm clear, we would go
16 through the amended written charges and identify those
17 portions that are in dispute?
18 COMMISSIONER HUR: That are in dispute.
19 Exactly.
20 MR. KOPP: That sounds easier than the
21 alternative. I'd be willing to try.
22 COMMISSIONER HUR: Miss Kaiser, do you have any
23 thoughts on that?
24 MS. KAISER: I agree that findings of fact,
25 actually, are going to be necessary if there's any
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1 likelihood at all that the sheriff will pursue an
2 administrative writ of mandate.
3 The court, if it's going to review this
4 procedure, is going to need to have findings of fact to
5 look at in order to understand the basis of the decision.
6 So I just wanted to point out that consequence that is a
7 little further down the road.
8 COMMISSIONER HUR: Do the Commissioners have
9 any thoughts on the proposal with respect to the
10 allegations?
11 COMMISSIONER RENNE: Well, let me say I've been
12 pondering this question about what our report is supposed
13 to look like and what it's supposed to contain beyond the
14 recommendations of either recommending that the Board
15 affirm the action of the mayor or take issue with that --
16 that -- the position taken by the mayor.
17 And I -- I guess I would welcome suggestions of
18 what the parties think that should look like. Because
19 one of the difficulties I think that we have in the way
20 in which we are required to operate under the Brown Act,
21 it isn't like judges getting together or jurors getting
22 together, whatever it is, and talking among themselves
23 and trying to come up with a document or a decision,
24 because we have to do everything in public. And we need
25 to have something -- at least, I feel I need to have
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1 something substantial in front of me to say, yeah, this
2 is a form that looks like the way in which I would like
3 to try and resolve the problem.
4 But I have a totally open mind as to what that
5 document should look like. And I would love to get the
6 suggestion from the parties and assistance as to what you
7 think would be the most effective document which would
8 comply with what we are required to do, and, that is, to
9 prepare a record to send it to the Board of Supervisors
10 with our recommendation.
11 What that record is besides the transcript, and
12 the documents, and the evidence that has come in, I
13 really -- I'm not at a point where I can say I've got --
14 I'm not, I guess, as firm as the Chairman about that it's
15 got to be findings of fact and conclusions of law or
16 something like that. Maybe that's what it's got to be.
17 That certainly is the traditional way that one would
18 proceed, but I'm -- I'm open to any suggestions that
19 makes some sense.
20 COMMISSIONER HUR: Mr. Emblidge.
21 MR. EMBLIDGE: I would just say I agree the
22 Charter does not make your job easy, because it doesn't
23 give a lot of guidance on this point. It simply says
24 make recommendations.
25 I would urge the Commission, and certainly for
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1 the parties to weigh in on this at the appropriate time,
2 to consider two things.
3 One is, if the Board of Supervisors simply
4 receives a recommendation that charges be sustained or
5 charges not be sustained, the Board of Supervisors might
6 wonder, well, how did they reach that representation?
7 And since this is somewhat like an
8 administrative law procedure where you are sitting as the
9 hearing officer to provide recommendations to the
10 ultimate decision maker, the typical model in that type
11 of procedure, which I acknowledge does not fit this 100
12 percent, but that would involve findings of fact and
13 conclusions of law to aid the ultimate decision maker in
14 making their decision.
15 So, that's all I can offer at this point.
16 COMMISSIONER RENNE: Yeah. I appreciate that
17 comment, because I have no experience on the
18 administrative side. All of my practice has always been
19 in the judicial side and I'm comfortable with that area.
20 And if those in the city attorney's office who
21 are familiar with what reports look like coming out of an
22 administrative agency which is -- which you might say is
23 performing the same kind of function that we are expected
24 to perform under the Charter, that would be very helpful
25 to me.
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1 MS. KAISER: I would also like to raise, if
2 it's appropriate now, that it seems like there are
3 more --
4 COMMISSIONER HUR: I'm sorry, Miss Kaiser,
5 we'll give you that opportunity, but do you have a
6 response to Mr. Renne's question?
7 MS. KAISER: Oh yes. We are very happy to
8 provide samples. I'm sure that your counsel is also in a
9 position to do that. I know that he's very knowledgeable
10 about these issues and these procedures.
11 COMMISSIONER HUR: Mr. Emblidge, is there
12 typically in addition to findings of fact and conclusions
13 of law a -- any sort of report or opinion that is issued
14 in an administrative proceeding like this?
15 MR. EMBLIDGE: Well, I won't say that there's
16 one, you know, uniform model, but in my experience, and I
17 can provide some examples to the Commission, that it
18 is -- it is essentially a written advisory opinion that I
19 have seen.
20 Where, for example, someone seeking -- an
21 administrative hearing about retirement benefits, the
22 retirement board appoints a hearing officer, the hearing
23 officer conducts hearings, takes evidence, and then
24 provides a written -- what we might be more familiar
25 with, something that looks like an opinion from a judge
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1 that says here's -- here are my conclusions.
2 That's not the final decision. It then goes
3 back to the retirement board for the retirement board to
4 make the final decision, but it reads very much
5 like almost a judicial opinion.
6 COMMISSIONER HUR: Okay.
7 MS. KAISER: I think a helpful analogy is a
8 magistrate judge doing the initial work and making a
9 recommendation to a district judge, for those who have
10 spent time in the judicial branch.
11 COMMISSIONER HUR: Okay. I -- Mr. Kopp, if
12 your side is agreeable, I do think it would be helpful,
13 at least in this first instance, to narrow down what
14 really is in dispute based on the allegations and
15 charges.
16 I think -- I do think we need to make findings
17 of fact and conclusions of law. The form we can continue
18 to discuss and explore.
19 When do you think you'd be able to provide the
20 Commission with that, just identifying the portions of
21 the allegations that you dispute?
22 MR. KOPP: Before the next meeting. I don't
23 know how much before that you'd want them. If it's like
24 the other document we're going to submit to you,
25 presumably a couple of days before. So I think we can
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1 commit to that.
2 COMMISSIONER HUR: Okay. Why don't we keep the
3 same date. I think it w
as July 17th.
4 MR. KOPP: Yes.
5 COMMISSIONER HUR: Okay.
6 MS. KAISER: May I bring up that related
7 issue --
8 COMMISSIONER HUR: Sure.
9 MS. KAISER: -- that I think fits in?
10 Because I do believe that in addition to
11 considering facts and disputes of fact there are also
12 disputes of law here. And I'm wondering if there is a
13 mechanism that could be put in place or that the
14 Commission could start to consider for getting more
15 information from the parties about questions of law that
16 are -- that are certainly -- and clearly, just listening
17 to the Commissioners, unsettled.
18 COMMISSIONER HUR: We definitely need that.
19 And I -- I will say I think, speaking for myself, that
20 obviously the most pressing one is whether the -- the or
21 conduct that falls below the standard portion, 15.105
22 (e), whether that has to be in relation to the duties of
23 the office or not.
24 I think there are probably other legal
25 questions that the Commissioners have that you may want
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1 to brief. If you want to brief them now in the interim
2 while we have some time, we welcome that.
3 MR. KOPP: I'm sorry to interject.
4 From our perspective, these issues have been
5 briefed. We were in the Superior Court and then we filed
6 our opening briefs. I don't know what there is to add to
7 those briefs. We can do a nice cut-and-paste job, but I
8 think you're going to wind up seeing the same
9 information.
10 COMMISSIONER LIU: Could I ask a question?
11 COMMISSIONER HUR: Sure.
12 COMMISSIONER LIU: This is a question for
13 Miss Kaiser or Mr. Keith.
14 Do you agree that that second prong, the
15 decency prong, has to be in relation to the office,
16 because for some reason I was thinking that when we had
17 heard briefing on it in prior -- at the prior session,
18 that there was some kind of agreement from your office
19 that it did have -- that it had to relate to his office
20 and that you were trying to put on a case that showed
21 evidence that it did relate to his office.
22 MS. KAISER: I actually think that there are a
23 couple of points of legal significance here.
24 One is -- and this is not clear, I don't think
25 yet, what does the duties of office mean, right? Is it
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1 just the things spelled out in the Charter? Is it the
2 Charter plus statutes? Is it the Charter, plus the
3 statutes, plus what the San Francisco sheriff says?
4 You know, how do you -- how do you define the
5 duties of office for purposes of this definition?
6 COMMISSIONER LIU: But setting that aside --
7 MS. KAISER: Well, I -- yes, okay, setting that
8 aside, it is not our position that the second clause has
9 to relate to the duties of office, however that ends up
10 being decided.
11 It's our position that the second clause
12 relates to the professional standards of the office,
13 which is something somewhat different than the actual
14 duties of office, because professional standards are
15 something you must meet as you exercise -- as you fill
16 that position, not necessarily just when, you know,
17 you're doing some particular Charter duty.
18 So we believe they both have to relate to the
19 office, but only one, in our view, has to relate to the
20 duties, whatever that is. And the other one relates to
21 the standard of conduct for persons holding that office.
22 COMMISSIONER LIU: Okay, thank you.
23 COMMISSIONER HUR: Okay. Perhaps the thing to
24 do then -- before we make these findings of fact and
25 conclusions of law, I think we're going to have to have
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1 another session after the sheriff puts in his
2 testimony -- his case.
3 Does that seem to make sense or do any of you
4 see a way that we could resolve that without an
5 additional session?
6 MS. KAISER: A session for the purpose of
7 argument and briefing and facts?
8 COMMISSIONER HUR: That's -- that's what I was
9 envisioning.
10 MS. KAISER: Yes. I don't see how you can
11 avoid it.
12 COMMISSIONER HUR: Mr. Kopp?
13 MR. KOPP: Reluctantly I agree.
14 COMMISSIONER HUR: Okay. So -- so we can talk
15 about scheduling and really figure out an end date to
16 this, if we can.
17 Miss Lopez, I've heard, is available on the
18 18th and 19th, whether she appears remotely or whether we
19 bring her here. Clearly having her here would be
20 preferable, but I understand the limitations.
21 Miss Haynes, she can be here on the 18th or
22 19th?
23 MR. KOPP: Yes.
24 MS. KAISER: I'm sorry, do we know which of
25 those dates yet?
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1 COMMISSIONER HUR: Can either person -- can
2 both people commit to the 18th?
3 MR. KOPP: As far as I know.
4 MS. KAISER: That's what I've been hearing.
5 COMMISSIONER HUR: The 18th is Tuesday.
6 COMMISSIONER STUDLEY: Wednesday.
7 COMMISSIONER HUR: The 18th is a Wednesday.
8 Okay. So then I'm hearing that Miss Haynes is
9 available to testify on July 18th in person?
10 MR. KEITH: I haven't heard directly from her
11 lawyers. I'm relying on what Mr. Kopp says.
12 COMMISSIONER HUR: July 18th Miss Haynes can
13 testify?
14 MR. KOPP: That's my understanding, yes.
15 COMMISSIONER HUR: Okay. So we'll have her on
16 the 18th.
17 Miss Canny said that Miss Lopez can be
18 available on either the 18th or 19th. So let's just put
19 it in for the 18th.
20 COMMISSIONER STUDLEY: Both?
21 COMMISSIONER HUR: Both.
22 Is Mr. Hennessey going to appear live?
23 MR. KOPP: Not as far as I know.
24 COMMISSIONER HUR: Okay. So then there are two
25 witnesses remaining and they will both go on July 18th.
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1 Any objection to that?
2 MR. KEITH: Commissioner, no objection to that,
3 but we need to sit down and go over Sheriff Mirkarimi's
4 testimony to determine if we feel that we need any
5 rebuttal witnesses. I don't know -- I simply don't know
6 if we do, but I feel like we need to alert the Commission
7 that we might. And certainly it's something we'll look
8 into as quickly as we can.
9 COMMISSIONER HUR: Okay. Everybody hold the
10 19th, okay. Do not release the 19th.
11 I would like to know by July 6th. Is that
12 doable? That's next Friday. Or we can do the 10th.
13 MR. KEITH: I think we might be able to
14 identify the witnesses by July 6th certainly. We can
15 certainly identify them by July 6th.
16 I don't know if there are going to be any. A
17 part of it depends on how quickly the court reporter may
18 be able to get us a transcript.
19 MS. KAISER: No pressure.
20 COMMISSIONER HUR: Let's do July 10th. Let us
21 know about July 10th, whether you have a rebuttal case or
22 you want -- you want to present a rebuttal case.
23 Is that reasonable?
24 MR. KEITH: Yes.
25 MS. KAISER: If -- well, two issues, actually.
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1 One is, we would like to have some -- some
2 dates certain by which we will know with sort of
3 definiteness whether or not Sheriff Hennessey is going to
4 appear on the 18th.
5 COMMISSIONER HUR: It sounds like he's not
6 appearing.
7 MS. KAISER: Is that a commitment?
8 MR. KOPP: I -- that's the status right now as
9 far as I know. If he changes his mind, I'll let everyone
10 know in short order. I mean, I'll --
11 COMMISSIONER HUR: Okay. If we don't hear from
12 you by July 10th on that --
13 MR. KOPP: Yeah.
14 COMMISSIONER HUR: -- I think we should exclude
15 him.
16 MR. KOPP: That's fine.
17 MS. KAISER: Thank you.
18 COMMISSIONER HUR: Okay. So then after the
19 19th, I presume that you will want some time to get us by
20 citation the evidence that supports whatever facts are
21 actually in dispute.
22 And at the same time, I would be willing to
23 provide the parties with an opportunity to brief whatever
24 legal issues they think that need to be briefed.
25 If you don't think they need to be briefed, you
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1 don't have to submit them, but I'll give you the chance.
2 I think we should give you the chance to do it if you'd
3 like.
4 How much time would you need to accomplish
5 those two tasks? Fact in the left column; supporting
6 evidence in the right column.
7 MR. KEITH: Oh, just --
8 COMMISSIONER HUR: And the brief on the legal
9 issues.
10 MS. KAISER: I'm sorry, one thing that goes
11 into this in terms of the rebuttal witnesses is -- are <
br />
12 you going to -- are you going to -- are you going to ask
13 us to proceed by declaration again or would it just be a
14 matter of bringing people in for live testimony? One's
15 faster than the other at this point.
16 COMMISSIONER HUR: Yeah, I think -- I think we
17 may just go to live testimony for rebuttal witnesses.
18 MS. KAISER: Okay. Thank you.
19 COMMISSIONER HUR: If any.
20 MS. KAISER: If any, yes.
21 COMMISSIONER HUR: So, then, timing wise, how
22 much do you need to --
23 MR. KOPP: I think --
24 COMMISSIONER HUR: -- after the 19th to get
25 us --
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1 MR. KOPP: I would think at least a couple of
2 weeks, because that testimony will have to be digested
3 and concluded. So I would think a minimum of two weeks.
4 MS. KAISER: We'd prefer three. I would
5 propose August 10th.
6 MR. KEITH: I think, honestly, we'd like more
7 time, but I think we also just want to get this -- get
8 this in. So three weeks we can do.
9 COMMISSIONER HUR: I am going to -- you know,
10 it's Mr. Kopp's client who -- for whom the time, I think,
11 is most pressing.
12 So, Mr. Kopp, if that's agreeable to you?
13 MR. KOPP: May I just have a moment, please?
14 COMMISSIONER HUR: Yes.
15 (Discussion off the record.)
16 COMMISSIONER RENNE: What date?
17 COMMISSIONER STUDLEY: August 10th.
18 COMMISSIONER HUR: August 10th.
19 COMMISSIONER RENNE: I'm unavailable between
20 the 8th and the 13th.
21 COMMISSIONER HUR: This would just be for when
22 the papers would come in, not a meeting.
23 COMMISSIONER RENNE: Oh. All right.
24 MS. KAISER: It's also my understanding that
25 the Board is out of session for -- no?
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1 MR. EMBLIDGE: No, that won't --
2 MS. KAISER: It won't --
3 MR. EMBLIDGE: -- won't trigger -- our
4 submission of the record is what triggers the Board's
5 involvement, the Board's deadline.
6 MS. KAISER: And you're intending to submit it
7 while the Board is out of session?
8 MR. EMBLIDGE: No.
9 MS. KAISER: That's why I was mentioning it.
10 There's a period --
11 COMMISSIONER HUR: Miss Kaiser, we'll get to
12 that. I'm cognizant of when the Board is gone. I
13 really --
14 MS. KAISER: Thank you.
15 COMMISSIONER HUR: -- just want to get this
16 scheduled.
17 MR. KOPP: And, you know, our concerns for
18 expediency have diminished by the fact that we can now
19 see that it's really not going to conclude that quickly.
20 So we're happy to extend three weeks, four weeks to them
21 if that's what they need.
22 COMMISSIONER HUR: Okay. Well, I'm asking what
23 you want.
24 MR. KOPP: I think a minimum of three weeks is
25 what's called for.
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1 COMMISSIONER HUR: Okay. So the 10th? August
2 10th to get that in?
3 Then my thought is that after having those, at
4 the next meeting of the Commission, whenever we can
5 schedule that, we would come to a conclusion. We would
6 deliberate on the findings of fact and propose
7 conclusions of law and we would make recommendations on
8 whether there was official misconduct or not.
9 At that hearing, I would be willing to
10 entertain some short closing argument, if you all wanted
11 to do it. It'll have been a little while since we've
12 heard the testimony, so if you would prefer that, I think
13 I'd be willing to entertain it.
14 MR. KOPP: I'd prefer it to voluminous
15 briefing, but I would agree that it ought not to be a
16 long argument.
17 COMMISSIONER HUR: Okay. Well, it's not going
18 to replace your specifically identifying for me where in
19 the record you think, you know, the evidence lies. But
20 if you want to do a closing, I could see it potentially
21 being helpful.
22 MR. KOPP: Can I reserve my recommendation on
23 that 'til we meet next time?
24 COMMISSIONER HUR: Sure.
25 MR. KOPP: Thank you.
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1 MS. KAISER: I'm concerned that I may have
2 aided in Commissioner Renne's proposal of -
- that the
3 parties make suggestions about how the decision looks or
4 how to help the Commission.
5 I don't know if that's something that you still
6 also wanted from the parties? I don't want to have
7 brought attention away from that by accident.
8 COMMISSIONER HUR: I'm not sure I follow. If
9 you have -- if you have an additional recommendation for
10 how this -- how the paper should look, we can talk about
11 it, I suppose, on the 18th.
12 But I'm just telling you when we want --
13 whatever those papers are, when we want them. And so
14 August 10th we'll have your conclusions of law and
15 findings of fact on August 10th.
16 So now the next question is when -- when should
17 we meet to discuss this?
18 What is the Commission's availability the
19 second full week of August?
20 COMMISSIONER STUDLEY: Dandy.
21 COMMISSIONER HUR: "Dandy" says Commissioner
22 Studley.
23 COMMISSIONER LIU: The week of the 12th?
24 COMMISSIONER HUR: Week of the -- yes.
25 COMMISSIONER STUDLEY: The 6th.
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1 COMMISSIONER HUR: The 12th, the 13th. That
2 week.
3 So it sounded like Commissioner Renne was not
4 available on the 13th.
5 COMMISSIONER HAYON: July?
6 COMMISSIONER HUR: August.
7 COMMISSIONER LIU: I apologize, my phone
8 totally died. So I don't have my calendar, but I don't
9 think -- I think I'm available.
10 COMMISSIONER HUR: That week?
11 COMMISSIONER LIU: That week.
12 COMMISSIONER HUR: Well, we can -- we can -- we
13 can hold a couple dates and see what will work.
14 COMMISSIONER LIU: Okay.
15 COMMISSIONER HUR: What about the parties?
16 MR. KOPP: I've got the second full week
17 beginning with the 13th.
18 COMMISSIONER HUR: Not the 13th, but the 14th
19 through the 17th.
20 MR. KEITH: Early in the week is better for me.
21 The 14th. That would be -- that would be a preference.
22 I just have a commitment later that week.
23 COMMISSIONER HUR: Is it avoidable, because we
24 won't have that much time? Well, let's see --
25 MR. EMBLIDGE: I'm not available on the 17th.
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1 COMMISSIONER HUR: Okay.
2 MR. KEITH: The 14th or 15th would be
3 preferable for us. Either of those dates.
4 MR. KOPP: I'm sorry, could we just have a
5 moment? We're trying to figure out if this works.
6 COMMISSIONER LIU: Ben --
7 COMMISSIONER HUR: Yes.
8 COMMISSIONER LIU: -- what date is our
9 regularly scheduled August meeting?
10 COMMISSIONER HUR: Our regularly scheduled
11 August meeting, I believe, is the 27th.
12 COMMISSIONER LIU: 27th, okay.
13 COMMISSIONER RENNE: 27th.
14 COMMISSIONER LIU: Okay.
15 COMMISSIONER HUR: Of August.
16 MR. KOPP: It looks like that week, the 14th
17 through the 17th works. The last two weeks of August I
18 know are not very good for us.
19 COMMISSIONER HUR: I'm sorry, Mr. Kopp, you
20 said?
21 MR. KOPP: I think that week of the 14th
22 through the 17th is okay. After that, the rest of August
23 is problematic.
24 COMMISSIONER HUR: Okay. Well, then, let's --
25 let's schedule it then.
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1 And are you talking about daytime availability?
2 Because one thing I'm thinking is we -- if we can do it
3 during the day, we do it during the day so that we make
4 sure we get it done.
5 MR. KOPP: We'll do it during the day if need
6 be.
7 COMMISSIONER HUR: Okay. Commissioner --
8 COMMISSIONER LIU: If it's during the day, I do
9 have to -- I do have a couple hearings I have to -- I
10 have to look and see exactly what dates. I have hearings
11 in August I need to check on if it's during the day.
12 MR. KOPP: I have a phone charger I've been
13 using if it's an iPhone.
14 COMMISSIONER LIU: It's a phone that I've been
15 having problems with, so I think it's going to take
16 forever to charge if I do it right now. Thank you,
17 though.
18 COMMISSIONER HUR: Okay. So why don't we -- do
19 the parties have any unavailability from the 14th to the
20 16th, things -- absolutely things that could not be
21 moved?
22 MR. KEITH: No.
23 COMMISSIONER HUR:
Okay. If you could hold
24 those -- why don't we plan to talk on Monday. I'll talk
25 to the parties just about scheduling.
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1 In the meantime, we can get Commissioner Liu's
2 calendar and figure out exactly when in that period we'll
3 be able to have our, I'm hopeful, last meeting.
4 COMMISSIONER LIU: Thank you.
5 COMMISSIONER HUR: Any comments from the
6 Commissioners or objections from the parties about the
7 schedule we discussed?
8 MR. KOPP: No.
9 MS. KAISER: Neither one of us is available to
10 consult with you on Monday.
11 COMMISSIONER HUR: Okay. We can do it Tuesday.
12 MS. KAISER: Or Tuesday.
13 MR. KEITH: We can work out --
14 COMMISSIONER HUR: Okay. We'll figure it out.
15 MR. KEITH: We can work out a time when one of
16 us could be available.
17 COMMISSIONER HUR: Okay. Great.
18 COMMISSIONER LIU: What time are we scheduled
19 to start on July 18th and July 19th?
20 COMMISSIONER HUR: July 18th and 19th are
21 evening sessions, I believe. We didn't -- we haven't set
22 a time. That's a good idea, we probably should.
23 Why don't we plan to start at 5:00 o'clock.
24 Are the rooms available at that time?
25 MS. NG: I don't have a calendar with me. Is
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1 the -- the 19th is a Thursday, I take it?
2 MR. EMBLIDGE: Yes.
3 MS. NG: Many times the room may be taken until
4 4:30, 5:00 o'clock. So perhaps on the Thursday they can
5 start at 5:30.
6 COMMISSIONER HUR: Okay. Why don't we do this.
7 We'll send out the notice or you can contact Mr. Emblidge
8 or Miss Ng like you have, by cc'ing other counsel, and
9 we'll get that figured out. But reserve the evening, the
10 18th and the 19th.
11 MS. KAISER: If it's possible, I would request
12 when we're hearing witness testimony to be in this room
13 again. It works out very much better for counsel, I
14 think, and hopefully for the Commission as well. I know
15 it's limited by availability.
16 COMMISSIONER HUR: Yeah. I agree with you.
17 This room is much better and much cooler as well.
18 MS. KAISER: Also.
19 COMMISSIONER HUR: The rooms are apparently
20 very hard to come by. So we'll do our best.
21 MS. KAISER: Thank you.
22 COMMISSIONER HUR: Anything else?
23 Okay. As is our practice, I recommend that we
24 take a vote regarding the rulings that the Commission has
25 made today.
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1 Is there a motion to approve on an interim
2 basis the rulings that the Commission made today?
3 COMMISSIONER RENNE: So moved.
4 COMMISSIONER HUR: Is there a second?
5 COMMISSIONER HAYON: Second.
6 COMMISSIONER HUR: All in favor?
7 (Commissioners in unison said "aye.")
8 COMMISSIONER HUR: Opposed?
9 Okay. The meeting is adjourned.
10 (Whereupon the meeting recessed at
11 5:15 o'clock p.m. to be reconvened,
12 Wednesday, July 18, 2012, at 5:00 o'clock
13 p.m.)
14
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1 I, the undersigned, a Certified Shorthand
2 Reporter in the State of California, hereby certify that
3 the witnesses in the foregoing hearing were duly sworn to
4 testify to the truth, the whole truth, and nothing but
5 the truth in the within-entitled cause; that said
6 proceeding was taken at the time and place therein
7 stated; that the testimony of said witnesses were
8 reported by me, a disinterested person, and was
9 thereafter transcribed under my direction into
10 typewriting; that the foregoing is a full, complete, and
11 true record of the said testimony.
12 I further certify that I am not of counsel or
13 attorney for either or any of the parties in the
14 foregoing proceedings and caption named, or in any way
15 interested in the outcome of the cause named in said
16 caption.
17
18
Date: July 13, 2012
19
20
21
22
23 JEANNETTE SAMOULIDES, CSR #5254
24
25
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