Ethics Commission
City and County of San Francisco

Transcript – Special Meeting of the Ethics Commission – August 16, 2012

    1               BEFORE THE ETHICS COMMISSION

2 CITY AND COUNTY OF SAN FRANCISCO

3 STATE OF CALIFORNIA

4

5 In the Matter of Charges Against

6 ROSS MIRKARIMI,

7 Sheriff, City and County of San Francisco

8 _______________________________________

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11 City and County of San Francisco

12 Special Meeting of the Ethics Commission

13 Thursday, August 16, 2012 - 9:07 a.m.

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18 Reported by: Marlene Puaoi, CSR, RPR

19 California CSR No. 7370

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21 Bonnie Wagner Court Reporting
Certified Shorthand Reporters
22 1819 Polk Street, No. 446
San Francisco, California 94109
23 (415) 982-4849

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1 BE IT REMEMBERED that on Thursday, August 16,

2 2012, commencing at the hour of 9:07 a.m. thereof, at

3 CITY HALL, 1 Dr. Carlton B. Goodlett Place, Room 400,

4 San Francisco, California, before me, MARLENE PUAOI, a

5 Certified Shorthand Reporter in and for the State of

6 California, the following proceedings were had of

7 record.

8 ---o0o---

9 APPEARANCES OF COUNSEL

10 For Sheriff Ross Mirkarimi

11 LAW OFFICES OF SHEPARD S. KOPP
11355 W. Olympic Boulevard, Suite 300
12 Los Angeles, California 90064
BY: SHEPARD S. KOPP, Attorney at Law
13 - and -

14 LAW OFFICES OF DAVID P. WAGGONER
2251 Market Street, Suite B
15 San Francisco, California 94114
BY: DAVID P. WAGGONER, Attorney at Law
16

17 For the City and County of San Francisco

18 OFFICE OF THE CITY ATTORNEY
1390 Market Street, Fifth Floor
19 San Francisco, California 94102-5408
BY: PETER J. KEITH, Deputy City Attorney
20 BY: SHERRI SOKELAND KAISER, Deputy City Attorney

21 For the Ethics Commission Board

22 MOSCONE, EMBLIDGE & SATER, LLP
220 Montgomery Street, Suite 2100
23 San Francisco, California 94104
BY: G. SCOTT EMBLIDGE, Attorney at Law
24

25 ---o0o---

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1 Commissioners Present

2 Benedict Y. Hur, Commission Chairman
Jamienne S. Studley
3 Beverly Hayon
Dorothy S. Liu
4 Paul A. Renne

5 Staff Present

6 John St. Croix, Executive Director
Catherine Argumedo, Legal Analyst/Ethics Investigator
7 Garrett Chatfield, Legal Analyst/Ethics Investigator
Mabel Ng, Deputy Executive Director
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9 ---o0o---

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1 INDEX OF PROCEEDINGS

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3 CLOSING ARGUMENTS Page

4 By Mr. Keith 1422

5 By Mr. Waggoner 1466

6 By Mr. Kopp 1478

7 By Mr. Keith (Rebuttal) 1497

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9 DELIBERATIVE SESSION 1509

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11 ---o0o---

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1 Sheriff Ross Mirkarimi August 16, 2012

2 ---o0o---

3 P R O C E E D I N G S

4 COMMISSIONER HUR: Good morning, and welcome to the

5 continued special meeting of the San Francisco Ethics

6 Commission relating to the official misconduct charges

7 against Sheriff Mirkarimi.

8 We have a lot to do today, and so I wanted to start

9 by going over my proposed schedule for how we'll

10 proceed. We'd first like to hear the closing arguments

11 from the attorneys.

12 From the mayor's side, have you decided whether you

13 want -- how much you want to use up front and how much

14 you want to use, if any, in rebuttal?

15 MR. KEITH: We'll have 40 minutes up front, five

16 minutes for rebuttal.

17 COMMISSIONER HUR: Okay. During the course of

18 these arguments, I suspect that the commissioners will

19 have questions for you, and so expect to be interrupted.

20 This is obviously for us, so that we can get a good

21 handle on what your positions are and any final

22 questions we may have.

23 Our questions come out of your time, so don't

24 expect more than 45 minutes just because we're spending

25 some of it asking you questions.

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1 After that, we'd like to take public comment on

2 the -- this agenda item. Public comment will be

3 strictly limited to two minutes per person. I know

4 there are a lot of people who would like to give public

5 comment, and we look forward to those comments.

6 Because of the volume, though, we are going to have

7 to limit it to two minutes, and I'm going to instruct

8 the staff to turn off the microphones after two minutes.

9 I'll explain this again right before we do public

10 comment, but you will get a warning beep when you have,

11 I believe, 30 seconds, which will allow you to wrap up

12 your comments.

13 After that, I intend to take a lunch break,

14 following which we will deliberate. The commission will

15 address the factual and legal issues that have been put

16 before us, and hopefully, we will come out with a

17 recommendation for the board at the conclusion of today.

18 In addition to the oral findings, we should discuss

19 whether we want to have some written findings. I think
20 one idea is for the attorney for the commission,

21 Mr. Emblidge, to write a summary opinion of what our

22 findings are at the end of today and then for us to

23 either adopt that as a summary in advance or to meet

24 again to officially adopt the written summary of our

25 oral findings today. But I would expect any writeup

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1 would merely be a summary of what we've already found,

2 not any sort of new bases for our findings.

3 So those are the things I hope to address. And

4 before we start with attorney argument, let me take the

5 roll.

6 (Roll taken)

7 COMMISSIONER HUR: All commissioners are here, and

8 so let's begin with the mayor.

9 MR. KEITH: Good morning, Commissioners. Now, I

10 have prepared a closing argument in anticipation of not

11 being interrupted, but I understand that things change

12 and we have a compressed amount of time, so I will do my

13 best to cover all the main points and answer your

14 questions as well. So let me proceed.

15 On March 19th, 2012, the City and County of

16 San Francisco and the sheriff's department faced an

17 intolerable situation. Sheriff Mirkarimi had just been

18 convicted of a crime. He'd just been sentenced to three

19 years of probation out of his four-year term of office,

20 and the nature of his crime was troubling.

21 He was convicted of a crime of false imprisonment

22 while at the same time having responsibility to lawfully

23 imprison the prisoners in county jail. Moreover, it was

24 a crime of domestic violence. It was a crime involving

25 the violation of trust in the marital relationship, and

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1 any crime involving a violation of trust raises serious

2 questions about whether an individual can carry out the

3 trust that comes with public office.

4 Faced with these facts, the mayor acted. The mayor

5 asked the sheriff to resign. He did not. The mayor

6 therefore filed these charges, and that ultimately

7 brought us to today.

8 Now, under the law before the commission, the

9 official misconduct provision in our charter and the

10 case law the California Supreme Court interprets,

11 similar provisions under other state laws, under the

12 evidence that's been presented to this commission, under

13 the common sense and wisdom of the commissioners, and

14 for what is right for the sheriff's department and for

15 our city, we ask you to recommend sustaining these

16 charges to the Board of Supervisors.

17 Now, the commission has received a great deal of

18 evidence in this case. Most of it has come from the

19 mayor, and most of it has been unchallenged. The mayor

20 presented nine witnesses through written testimony and

21 exhibits. The sheriff exercised his right to

22 cross-examine only two of them. Most of the evidence in

23 this case concerns what the sheriff of the City and

24 County of San Francisco is expected to do and what Ross

25 Mirkarimi did instead.

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1 The facts are not very difficult to understand in

2 this case, and I'm going to go over them in a moment.

3 But first, I want to address the law the commission is

4 going to have to apply and address the specific

5 questions that the commission asked the parties to

6 address in the briefing about interpreting our official

7 misconduct provision in the charter.

8 Now, the legal basis for removal is met here. The

9 sheriff seems to argue that "Even if I acted wrongfully

10 and terribly, under the law, a technicality permits me

11 to continue in office."

12 That is not the case. Now, I prepared for the

13 commission something akin to the jury instructions you

14 might have in a civil trial. And if I could ask my

15 co-counsel to provide this to the other side, I'll pass

16 up a copy to the commission.

17 COMMISSIONER HUR: You may want to zoom in on that

18 a little bit if you --

19 MR. KEITH: I will.

20 COMMISSIONER HUR: -- if you can, Mr. Keith. Thank

21 you.

22 MR. KEITH: Now, what this -- what this document

23 is, it's the first sentence of our charter official

24 misconduct provision. And Commissioner Hur had

25 presented Option 1 and Option 2 at the last hearing, and

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1 this is very close to Option 2. And the big -- the big

2 question, I guess, that this way of setting out our

3 definition of official misconduct answers is "Does the

4 official misconduct have to have a relation to the

5 duties of office?"

6 It does, but the dispute here isn't about that.

7 It's about what is that relationship. And that's really

8 what the sheriff's legal arguments seem to hinge on is

9 what that relationship has to be. The sheriff claims

10 it's not there, but it is.

11 COMMISSIONER RENNE: Counsel, isn't your reading of

12 Option 2 really too restrictive of what -- it may make

13 no difference in this case, but as I read it, it is

14 talking in the conjunc- -- disjunctive. It first talks

15 about misconduct relating to the office itself. The

16 second is a much more broadly worded -- it says "conduct

17 that falls below the standard of decency, good faith and

18 right action impliedly required of all public officers."

19 There's nothing in that section, that clause, that

20 says the misconduct has to relate to the office. For

21 example, you would agree, would you not, that if, say, a

22 member of the Board of Supervisors became aware that

23 another member was engaged in child molestation, which

24 clearly has no relationship to his office, but chose not

25 to disclose it and to cover it up, that that would

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1 constitute a violation of the official misconduct act?

2 MR. KEITH: You know what? That is an issue that

3 I'm glad is not before us today, because that presents a

4 very troubling question.

5 We have serious misconduct that certainly reflects

6 on the moral and ethical judgment of an officer and then

7 whether another officer then has a duty to report that

8 to the city. I think that there's arguably a duty

9 implied under law based on the trust that that

10 individual holds toward the city to maintain the

11 standards of conduct of the body.

12 So I think the reason why that seems like such a

13 difficult hypothetical to us is because it's hard to

14 say, "Well, a supervisor has this as a job," but if you

15 look at the trust that a supervisor has to hold, that's

16 part of what a supervisor is supposed to do. So I think

17 that even in situations like that, they do nevertheless

18 relate to the duties of office. And in this particular

19 case, it would seem to relate to the trust that that

20 supervisor holds for office.

21 I mean, I think -- I mean, in this case, we have a

22 nexus, certainly, between the fact that the misconduct

23 is a crime and, of course, the sheriff is in law

24 enforcement and his conduct has consequences that are

25 related to law enforcement. So it's not a tough

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1 question whether the relationship test is met here,

2 whether the official misconduct provision would capture

3 all of the sort of reprehensible conduct that we think

4 that our officials shouldn't be engaged in. That's a

5 question, perhaps, for amendment.

6 COMMISSIONER RENNE: But isn't a fair reading of

7 that that the drafters were focusing on two things? One

8 is performance in office and doing some misconduct

9 relating to that; and the other is some overarching

10 ethical code that any public official ought to abide by.

11 Isn't that what they were concerned about?

12 MR. KEITH: Well, I think that the greater includes

13 the lesser. The duties of office includes that ethical

14 code. And to say -- and part of the duties of office

15 and the relation to the duties of office is maintaining

16 that ethical standard.

17 And I think that that's something that a person

18 could look at the main clause and say, "Well, what's

19 wrongful behavior by a public officer?" It's not

20 upholding what we expect of a particular officer. And

21 then the use of the word "including" tells us that that

22 definition includes things like conduct that falls below

23 the decency standard.

24 It's not limited to that, nor is it limited to a

25 failure to take action to perform a mandatory duty.

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1 It's any wrongful behavior in relation to the duties of

2 office, including these things.

3 COMMISSIONER RENNE: You may be going to get to

4 this a little further on, but do you agree that it's

5 sort of a two-step process that we have to deal with?

6 One is was it official misconduct? And two, did the

7 mayor act reasonably in exercising his discretion?

8 MR. KEITH: I think the question -- well, I think

9 that really goes to the question of is there -- is there

10 a minimum level of wrongful behavior that we have to

11 have? For example, jaywalking. That's -- you know,

12 that's wrongful, but does that mean an elected official

13 should be removed? That's -- I mean, that's a tough

14 question.

15 It's doubtful that the people who wrote the charter

16 intended that. And fundamentally, we have a decision

17 that the Board of Supervisors has to make about

18 essentially, knowing the consequence of sustaining the

19 finding is that the sheriff will be removed, is that a

20 consequence that they think is appropriate for this? So

21 I think that there is a determination of are the

22 consequences appropriate for the wrongful conduct?

23 And the conduct here in this case is so wrongful

24 that there's no question that that consequence is

25 appropriate.

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1 COMMISSIONER RENNE: But you agree that it's a

2 two-step analysis?

3 One is if we were to find that there was no

4 official misconduct, that would be sort of the end of

5 our hearing and our recommendation to the board, saying,

6 "We find that it wasn't official misconduct." Or we may

7 say, "Yes, it was official misconduct, but we think

8 removal from office was an unreasonable exercise of

9 discretion." Isn't that a two-step analysis?

10 MR. KEITH: I don't think we're really looking at

11 the mayor's exercise of discretion. I think we're

12 thinking is the conduct -- does the conduct here in fact

13 warrant removal? And in fact, that's one of the things

14 under a separate section of the official misconduct

15 provision that deals with felony crimes involving moral

16 turpitude. What's mandatory when that happens, when an

17 official commits a felony crime of moral turpitude, is

18 the mayor must remove. The major has no discretion.

19 But nevertheless, it goes to this body to then

20 decide does that offense warrant removal? So there is a

21 judgment being made, I think, about the severity of the

22 conduct. And whether that's considered to be part of

23 the initial misconduct analysis or a separate analysis,

24 one could discuss, but certainly the severity, I think,

25 does matter. But here, I don't think the commission

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1 needs to grapple with the question because the conduct

2 is so severe.

3 COMMISSIONER HUR: Mr. Keith, but you would agree

4 that we can decide that it's official misconduct, but

5 make whatever recommendation to the board we think is

6 correct. If we think removal is too significant of a

7 penalty for the act, do you agree it's within our

8 discretion to make a recommendation to the board that he

9 not be removed from office?

10 MR. KEITH: I think th at this body's recommendation

11 to the board does embody a judgment about whether or not

12 the sheriff should be removed. So yes, you could -- I

13 think this commission could theoretically find that

14 there is some level of misconduct that meets the

15 definition, but nevertheless doesn't warrant removal.

16 I think that treating that as a two- -- I don't

17 know how sensible it is to treat that as a two-part

18 analysis, but I think that -- because I think that the

19 idea of what is wrongful conduct in relation to the

20 duties of office, I think that -- I think that that

21 suggests that we're measuring the severity of the

22 conduct. So I think it's difficult.

23 I think that we're complicating the task too much

24 to say that, well, we have to figure out whether the

25 basic legal elements are met and then make a separate

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1 determination about the severity.

2 COMMISSIONER HUR: And I do want to go back to the

3 point briefly that Commissioner Renne was raising. I

4 think what he was suggesting in the interpretation of

5 the charter is more akin to Option 1. And I understand

6 your view of Option 1 is that it would not be -- it

7 would be unconstitutionally vague.

8 MR. KEITH: Well, it's not that it would be

9 unconstitutionally -- but I think yes, that

10 interpretation probably would not give sufficient notice

11 of the conduct that's prohibited. On the other hand,

12 the interpretation that saves it is, well, you measure

13 that conduct by reference to the standards of that

14 particular office, and the rule is that that

15 interpretation always saves the statute. So that's how

16 these general good-conduct provisions are interpreted.

17 COMMISSIONER HUR: But as far as you -- your

18 position is that the -- what I'm going to -- what you've

19 helpfully labeled "the conduct clause" must relate to

20 the duties of office, that we -- that you don't think we

21 should interpret the charter provision, the conduct

22 clause of the charter provision, to not have to be in

23 relation to the duties of office. Right? You believe

24 there must be some connection.

25 MR. KEITH: Right, of course. But with the proviso

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1 that that task is not difficult to meet and it is very

2 broad.

3 COMMISSIONER HUR: Sure. I understand that you

4 have differences --

5 MR. KEITH: Yeah.

6 COMMISSIONER HUR: -- in how strict you think it

7 has to be, but --

8 MR. KEITH: Yes.

9 COMMISSIONER HUR: Okay.

10 MR. KEITH: So now, the sheriff basically says that

11 this relationship test that we've just been discussing

12 is, well, the charter must have a provision that says

13 the sheriff cannot commit a crime. It's there. He

14 says, "These are the five duties in the charter. It's

15 not here; therefore, it's not official misconduct."

16 Well, that argument doesn't make any sense. I

17 don't think that anybody would think that, that the

18 charter meant to allow someone, an official, to do

19 anything on the job, no matter how wrongful, that if it

20 wasn't spelled out as a particular duty in a statute

21 that you couldn't violate wouldn't give rise to official

22 misconduct. That doesn't make any sense.

23 When we talk about wrongful behavior, and again we

24 look at the cases and what they talk about with regard

25 to this relationship test, the California Supreme Court

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1 said in the Cranston case, dealing with a police officer

2 who engaged in reckless driving while off duty -- it

3 said -- it upheld the termination of that officer, and

4 it said, "The public has a right to expect police

5 officers to obey the laws whether they are on duty or

6 off duty. When police officers violate the laws which

7 they were hired to enforce, they do so at their own

8 peril."

9 The relationship existed there, and that's the same

10 relationship here. So this test, though it does apply

11 to the conduct clause, is fully satisfied here. And I

12 think that we -- you know, it's conceivable that there

13 are situations where there could be terrible conduct

14 where it could be a much harder question. This is not

15 one of them.

16 COMMISSIONER HUR: Let me ask you about Cranston.

17 I mean, Cranston talks about the specificity may be

18 provided by the common knowledge and understanding of a

19 particular vocation or profession, and so you're using

20 that to suggest that the particular vocation we should

21 have in mind are sheriffs or law enforcement officials.

22 Do I have that right?

23 MR. KEITH: Yes.

24 COMMISSIONER HUR: But when I'm looking at the

25 actual charter provision, I mean, the language, to me,

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1 is pretty clear, "falls below the standard." If the

2 people wanted, intended multiple standards, I think they

3 would have understood to use the plural, "standards."

4 So I think it's one standard of decency, good faith and

5 right action impliedly required of all public officers.

6 So I think the vocations that we need to evaluate are

7 not sheriffs or law enforcement, but public officers.

8 Now, we haven't heard a lot of testimony or expert

9 testimony about what the standard is for public

10 officers, but presuming that there is one, that seems to

11 be the standard we need to apply, and not the standard

12 that applies to police officers.

13 MR. KEITH: Well, I mean, let me respond to that in

14 two ways. First of all, it is a question of what "all"

15 means. Does it mean "each" or does it mean "every"?

16 Does it mean that every official is subject to the

17 standard that they should be meeting or does it mean

18 that they're all subject to the same standard? It's not

19 clear under t he statute.

20 COMMISSIONER HUR: But isn't it more about whether

21 it's "standard" or "standards"? I mean, if they

22 intended multiple standards, why wouldn't they use the

23 plural?

24 MR. KEITH: In similar provisions, say provisions

25 that govern the conduct of all state employees, similar

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1 language is used regardless of the fact that you can

2 have state employees who are corrections officers or

3 lawyers or park rangers or maintenance folks. The same

4 standard is used, and it applies to all of them. And

5 similar language like this is used in those statutes,

6 and nevertheless, the courts interpret it to mean it's

7 what applies to that particular office because that's

8 what makes sense.

9 The other issue here is that the lowest standard of

10 decency is one of the standards that the commission will

11 apply, and that's why the use of the word "including" in

12 this provision is so important. "Including" means "here

13 are some examples"; it doesn't mean that it is limited

14 to this.

15 So when we talk about wrongful behavior by a public

16 officer in relation to the duties of his or her office,

17 that encompasses the professional standard, so we still

18 have a professional standard that applies to the person

19 in the office and we also have -- we want to make clear

20 that there's also a baseline standard of decency that

21 applies. Courts have said that baseline standard in any

22 case has to be interpreted in relation to the office,

23 but it's a separate provision. It's the larger, general

24 definition that includes these things as examples.

25 I think when the voters enacted this, they

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1 envisioned that, gee, there probably is a standard of

2 decency that has been to be met by everybody who's in

3 public office, so we want to make sure that's in there.

4 But as a practical matter, meeting that professional

5 standard, that's one of the basic duties. If you didn't

6 have the word "including" here and all the text that

7 follows it, we would -- then it would -- this idea of

8 meeting a professional standard would still be embodied

9 in the general definition.

10 These are just illustrations. So these are really

11 two different standards that could apply, though as a

12 practical matter and as a constitutional matter, we

13 apply the standard of the profession from that second

14 clause.

15 COMMISSIONER HUR: Okay. So you think that

16 everything after the first "including" are mere examples

17 of what could constitute wrongful behavior by a public

18 officer in relation to their duties.

19 MR. KEITH: I won't say "mere." I say

20 "non-exhaustive."

21 "Here are some things that we want to make clear,

22 to the extent that there's any potential for ambiguity

23 as to what this general definition could mean under

24 these particular circumstances that we could foresee

25 coming. You know, we want to make that clear."

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1 So I think these are illustrative examples. And I

2 think there's also -- I mean, if you -- well, our brief

3 explains this in greater detail about why we think this

4 makes sense.

5 I want to talk about one of the other legal

6 arguments that the sheriff makes, and this relates to

7 the timing of the misconduct. And I think that we can

8 look at this -- look again at the definition of

9 "official misconduct" and break it down into elements,

10 so let me pass along to the commission another group of

11 jury-instruction type of documents which breaks down

12 "official misconduct" into its elements.

13 All right. So what we're doing here is taking the

14 general definition of "official misconduct," as I said,

15 at the beginning of the first sentence of our definition

16 of "official misconduct" in the charter, and we break it

17 down into the four elements of official misconduct.

18 Now, the sheriff has made an argument that because

19 he committed his misconduct a week before or initiated

20 his misconduct a week before his inauguration, that

21 doesn't count. Well, our response to that is simple:

22 It may have been a week before the inauguration, but

23 it was two months after the election, and that's what is

24 significant.

25 And the definition of "official misconduct" answers

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1 the sheriff's claim. It says "Official misconduct means

2 any wrongful behavior" and then the second element, "by

3 a public officer." Now, there's no statement in the

4 charter about what this definition of a public officer

5 means, but there's no reason to restrict who a public

6 officer is and say, "Well, it's somebody -- it includes

7 elected officials, but only after they're sworn in."

8 And the reason for this is the very purpose of the

9 official misconduct provision. The official misconduct

10 provision is meant to deal with wrongdoing that comes up

11 after the voters have voted or after an official is

12 appointed to their position. When the voters went to

13 the polls in November 2011 and they marked their

14 ballots, they did not say, "I am casting a vote for a

15 sheriff who has committed domestic violence and will be

16 on probation for three of the four years in office."

17 These are facts that were unknown to the voters;

18 they came to light after the election. And it's the

19 very situation that official misconduct provisions both

20 in our city and elsewhere are meant to deal with.

21 COMMISSIONER RENNE: Well, Counsel, it may well be

22 that the second portion of it deals with that question,

23 but the first portion -- I don't know how you can read

24 it other than it says, "Official misconduct means any
< br /> 25 wrongful behavior by a public officer in relation to the

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1 duties of his or her office," so that the first

2 paragraph clearly says whatever that wrongful misconduct

3 was, it has to be in relation to his duties to which he

4 was elected.

5 So that if he hasn't taken office -- he may have

6 been elected, but if he hasn't taken office, how can he

7 be guilty of violating that first section?

8 MR. KEITH: Well, let's think about the type of

9 misconduct that could be captured here in relation to

10 the duties of office. A person can be about to take

11 office and they could abuse the power of the office

12 they're about to take by making a threat about what they

13 will use that power for after they take the office.

14 A person can engage in wrongful behavior shortly

15 before taking an office that casts disrepute and

16 discredit on that office as the consequences of that

17 wrongful behavior unfold. And an official that's

18 between election and inauguration can be busy preparing

19 to take that office, and that's why government ethics

20 laws that do define who a public official is define a

21 public official to include -- and this is from the

22 California Political Reform Act. This is cited in our

23 brief. Gov. Code 82020 defines an elected officer as

24 "any person who holds an elective office or has been

25 elected to an elective office but has not yet taken

1439
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1 office." And this provision is cited in our brief.

2 COMMISSIONER RENNE: How can an act of domestic

3 violence transfer into saying that is a misconduct in

4 relation to his office? It may well be a violation of

5 the second clause, but how can it be an act that's in

6 relation to the duties of the office to which he's

7 elected?

8 MR. KEITH: Because his own conviction impairs the

9 ability of his department --

10 COMMISSIONER RENNE: He wasn't convicted at that

11 point.

12 MR. KEITH: Well, there is a special rule, and

13 there are some jurisdictions that say you can't take

14 misconduct from a prior term, meaning -- meaning,

15 actually, you can't take misconduct that occurred before

16 an election, and then charge it afterwards. But even

17 those jurisdictions have a principle that when someone

18 is convicted of a crime, it's the date of the conviction

19 that matters, and we look at that, that conduct.

20 And again, the reason for that principle -- well,

21 there's two of them. One of them is the goal here is to

22 protect the office and protect the public, and so having

23 a rule that when you actually have something as serious

24 as a conviction of a crime that occurs during -- where

25 the conviction occurs during the term protects that

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1 office. The second reason is because the actual

2 conviction is conclusive evidence that the conduct

3 occurred.

4 Things can be up in the air; things can be unknown;

5 things can be hidden. But this conviction makes it

6 conclusive evidence, and that's exactly what we saw

7 here. The mayor elected to let the criminal process

8 take its course, and when the conviction happened and

9 the sentencing happened, he acted because he had

10 conclusive evidence that this misconduct had occurred.

11 And so in the specific situation of crimes, where

12 even in the jurisdictions that have a rule that say you

13 can't do that, they say there is an exception for a

14 crime, and I'm not aware of any case in which someone

15 said that when you're convicted of a crime during a

16 term, you're -- but it happened before the term, you're

17 off the hook. And it's the similar rule in probation

18 violations, because again, the rule is are you -- did

19 the threat to the public -- did it come to light during

20 the time, during the term that the person is being

21 subject to scrutiny? And in this case, it did.

22 COMMISSIONER HUR: Commissioner Studley?

23 COMMISSIONER STUDLEY: As we're drilling down on

24 the words, the phrase that's used here is "in relation

25 to the duties" when it might have said instead "during

1441
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1 the conduct of" or "in carrying out the duties," which

2 would have made our job clearer to know about the

3 timing. Do you think that that, the fact that it says

4 "in relation to" as opposed to a more specific "wrongful

5 behavior in carrying out the duties of the office,"

6 would have set a higher and different kind of standard?

7 MR. KEITH: Well, I think it does, and there

8 are official misconduct provisions that do. The

9 statewide government code provision that outlines the

10 type of official misconduct that's prosecuted for a

11 grand jury is narrower.

12 And there's a case that we cited called People v.

13 Mullin involving a sheriff in which an incident of child

14 molestation came to light for the sheriff, to the

15 sheriff, and he didn't pursue an investigation and,

16 moreover, he didn't refer it to any other agency. And

17 the court said, "Well, the job of the sheriff is to

18 detect wrongdoing." And he didn't do anything, and this

19 was something that met that sort of that more closely

20 related test under the government code.

21 I think when the voters did this, I mean, they

22 also -- they also said, "We're looking at wrongful

23 behavior, not unlawful behavior." So they meant this to

24 be broader, and I think including provisions like the

25 decency clause showed that the voters wanted this to be

1442
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1 a broad provision so that we could hold our elected

2 officials to a higher standard, including being able to

3 deal with situations like this, where you have conduct

4 that relates to the duties of office and clearly bears

5 on the effectiveness of that office and how well that

6 office is going to function where you have consequences

7 that are going forward. They wanted to be able to

8 capture that, and I think that this language does.

9 Now, I want to -- I mean, I think that we -- I

10 think that our brief discusses the difference between

11 wrongful behavior and unlawful behavior closely enough

12 and what that signifies, so I'm not going to dwell

13 further on these elements. What I want to do is turn to

14 the relationship test and talk about how that

15 relationship test is satisfied here.

16 COMMISSIONER LIU: Mr. Keith, may I interrupt you?

17 Going back to the definition, your handout on the

18 broad definition where you broke it down into inaction,

19 conduct, and conflicts clause, so are you reading the

20 charter to say when you look at the conduct clause,

21 "conduct that falls below the standard of decency, good

22 faith and right action impliedly required of all public

23 officers in relation to the duties of his or her

24 office"?

25 Is that -- would that be the way you're

1443
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1 interpreting it if that's the standard that we're

2 supposed to apply today?

3 MR. KEITH: I think it has to be. I mean, I think

4 that -- I think that the use of the word "including"

5 followed by illustrative examples tells us that what

6 comes before is the general definition that has the

7 elements that need to be met in every case, and again, I

8 think the dispute here is on what exactly that

9 relationship has to be.

10 COMMISSIONER LIU: Okay. Thank you.

11 COMMISSIONER HUR: And you're only alleging

12 violation of the conduct clause.

13 MR. KEITH: No, we're -- we're alleging a violation

14 of the general definition here. I mean, I think much of

15 the -- some of the conduct here -- all of the conduct

16 that's alleged violates the general definition. Some of

17 it also violates some of the other illustrative clauses

18 here, but what we've been focusing on is that general

19 definition.

20 COMMISSIONER HUR: Okay. But you're not making an

21 allegation that he violated the inaction clause. Right?

22 MR. KEITH: I think some of the conduct related to

23 the investigation could fall under that category, but

24 doesn't necessarily, and that really depends on the

25 facts as this commission sees it.

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1 Basically, if this commission concludes based on

2 the evidence that the sheriff initiated the contact

3 between his campaign manager and his wife and he took

4 that action as part of his course of conduct to keep his

5 wife from going to the police, then he's responsible for

6 all the consequences that came from that, all the

7 consequences that came from him bringing in his campaign

8 manager to clean up this mess, in which case he's

9 responsible for the actions that she took later that

10 afternoon as well as with regard to the conversations

11 with Ivory Madison, with regard to the ongoing efforts

12 working with Ms. Lopez to try and stop this police

13 investigation if he initiated it.

14 If on the other hand the commission were to find

15 that the sheriff didn't initiate that contact, but

16 nevertheless found out about these efforts to dissuade

17 Ms. Madison and Mr. Mertens that were going on that day,

18 then I think the inaction clause would come into play

19 because that's -- and I think under the principles of

20 that case, People v. Mullin.

21 But other than that, I don't think the inaction

22 clause comes into play, because I think we have

23 affirmative acts taken by the sheriff which are

24 wrongful, which is a different type of thing than just

25 simply not acting when something comes to light.

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1 COMMISSIONER HUR: And you're not making an

2 allegation under the conflicts clause. Right?

3 MR. KEITH: Well, I think with regard to the

4 sheriff's threat to use his power, that does certainly

5 violate specific conflict-of-interest laws by the city,

6 but there's also no question that that's wrongful

7 behavior in relation to the duties of office, so I don't

8 think we need to dwell too much --

9 COMMISSIONER HUR: Can you identify to us the

10 conflicts-of-interest law that he violated?

11 MR. KEITH: Yes, it's identified in our brief. He

12 violated 3.218(a) of the Campaign and Governmental

13 Conduct Code. That provision says you can't violate any

14 provision of a statement of incompatible activities, and

15 the sheriff's statement of incompatible activities --

16 like every statement of incompatible activities in the

17 city states and as every statement of incompatible

18 activities is required to state, he used the prestige or

19 power of his office for a private end. That's the

20 violation there.

21 But again, these clauses are illustrative. I don't

22 think we need this clause to know that that kind of

23 conduct constitutes wrongful conduct in relation to the

24 duties of office. But in this case, that clause is also

25 met.

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1 COMMISSIONER RENNE: Would it be your position if

2 it wasn't the position of sheriff? If the public

3 official who have been suspended by the mayor was, say,

4 a supervisor, and he or she performed the same acts that

5 you allege were performed by the sheriff or the

6 sheriff's people to try and close off the investigation,

7 that that wouldn't be a violation because the supervisor

8 doesn't have any responsibility insofar as criminal

9 investigations?

10 MR. KEITH: I think that if we had a situation

11 where, say, the person wasn't initiating the contact,

12 but say it came to light to them after the fact that

13 these people were working o n his behalf to cover up his

14 crime, I think there's an argument that under that

15 circumstance, the person, as much as we would want them

16 to take action, may not be under an obligation to.

17 COMMISSIONER RENNE: That's the way you read the

18 statute?

19 MR. KEITH: I think that with regard to the -- to

20 specifically the inaction clause, we read it that way.

21 It's another question whether that conduct might be

22 reached by the decency clause and just the general

23 baseline level of conduct that we would expect.

24 COMMISSIONER HUR: Mr. Keith, sometime today, can

25 you show me -- and I may have just missed it -- where in

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1 your amended charges you rely on the conflicts clause as

2 a basis for sustaining official misconduct?

3 MR. KEITH: We don't separately state it. We

4 simply state that it's wrongful behavior in relation to

5 the duties of office. We think it also happens to meet

6 that illustration, but again, our concern is that it

7 meets the definition to begin with and we think it falls

8 within there. It's not separately alleged.

9 We do certainly allege that using the power of your

10 office in a custody dispute is wrongful behavior in

11 relation to the duties of office. We don't parse the

12 statute down to that example, down to that illustrative

13 clause.

14 COMMISSIONER HUR: Okay.

15 MR. KEITH: Now --

16 COMMISSIONER LIU: Mr. Keith?

17 MR. KEITH: Yes.

18 COMMISSIONER LIU: When you discuss the evidence,

19 can you discuss the evidence you think supports the

20 general clause and then the evidence that you think

21 supports the conduct clause under your interpretation?

22 MR. KEITH: That's -- I think that what it really

23 is it's applying two different legal principles to the

24 same sets of facts, so I think actually at the very end

25 of our brief, we do address that, the idea of what

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1 baseline standards that this conduct might violate.

2 And I think that the argument is, well, committing

3 domestic violence is certainly not something we're

4 willing to tolerate from a sheriff, and there is

5 certainly an absolutely crystal-clear relationship with

6 the duties of office with regard to law enforcement when

7 it comes to domestic violence. On the other hand, from

8 a supervisor alone, I don't think that the voters of San

9 Francisco contemplated that that standard of decency

10 would be -- would permit domestic violence by any

11 official in the City and County of San Francisco.

12 So I think that that would that be an example of

13 where it meets both clauses. And I think we get into

14 more difficult territory when we're talking about that

15 baseline standard, but we don't have to go there to

16 complete the task that we have because with regard to

17 the duties of sheriff, it's clear and the evidence

18 supports it, and I don't think anybody could dispute

19 that there's a relationship there.

20 COMMISSIONER LIU: Okay. Thank you.

21 MR. KEITH: Now, I'll do my best to do some

22 highlights of the evidence here now. We have -- the

23 heart of these charges has always been the sheriff's

24 crime and his conviction and his sentence for those

25 charges and the consequences of that for his office.

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1 We also have a course of conduct that followed

2 that included acts of witness dissuasion, threats -- and

3 I should say not just followed, but conduct that was

4 wrapped up in that -- threats to use his official power

5 in a custody dispute, witness dissuasion, and then

6 various actions that -- during the criminal process that

7 were either deceitful or abused his trust or didn't

8 comport with his responsibilities for law enforcement.

9 But the heart of the charges has always been the

10 domestic violence.

11 COMMISSIONER HUR: Can I make a suggestion when you

12 talk about the evidence?

13 I at least don't need to hear your evidence for the

14 physical abuse. It would be helpful for me if you would

15 point me specifically to the non-hearsay evidence of

16 witness dissuasion in particular, and also the evidence,

17 the specific non-hearsay evidence, of using his official

18 powers to try to obtain custody of his child.

19 So those are -- and then, I guess, thirdly, the

20 evidence that his statements to the police were

21 willfully -- what was the term you used? -- willfully

22 misleading. I mean, I want to know what the evidence is

23 that shows that -- you know, I -- I for one credit

24 Inspector Daniele that the sheriff said that to him. I

25 want to know what evidence you have that that was an

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1 affirmative lie, that he knew that he had the gun but

2 that he didn't turn it over.

3 So those are sort of for me the three areas that it

4 would be helpful to be pointed to specific non-hearsay

5 evidence.

6 MR. KEITH: I neglected to start my stopwatch, so I

7 don't know how much time I have left, but I will do my

8 best to cover those things.

9 COMMISSIONER HUR: I have you at 32 minutes.

10 MR. KEITH: We're 32 minutes in?

11 COMMISSIONER HUR: Yeah.

12 MR. KEITH: Then I'd better move quickly.

13 All right. With regard to the non-hearsay evidence

14 of the threats, we have the video, of course, which is

15 in, and then we have the contemporaneous statements to

16 Ivory Madison, which are also in. We have the statement

17 of Callie Williams, which, when it came in, was a

18 statement of Ms. Lopez's -- I guess we'll say when it

19 came in, it was hearsay, but Ms. Lopez has since

20 testified, so now it's not hearsay anymore; it's a prior

21 inconsistent statement. So all three of Ms. Lopez's

22 contemporaneous statements are not hearsay.

23 So to the extent that we're concer ned about a

24 hearsay problem --

25 COMMISSIONER HUR: Where in the record does

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1 Ms. Lopez say, "The sheriff told me that he can take

2 away my son because he is the sheriff and he's got that

3 authority" or something to that effect?

4 MS. KAISER: Ms. Lopez never testified to that.

5 She testified to the opposite, which is what made those

6 other statements admissible.

7 Callie Williams reports that threat that Ms. Lopez

8 made about using the power of office, and likewise

9 Ms. Madison reports it. It's in their written

10 declarations, and that's -- and as well as it's in the

11 video that he said he's very powerful and he can do it

12 immediately after saying that she's doing this because

13 he said he can take away Theo and he said he's very

14 powerful and he can do it.

15 COMMISSIONER HUR: So it's your -- your position is

16 that by saying he's powerful, that implies his power is

17 because he's an elected official and, therefore, we

18 should decide that he used that power to -- used the

19 power of his office to try to take custody of his child

20 or --

21 MR. KEITH: Well, that's how --

22 COMMISSIONER HUR: -- force Ms. Lopez --

23 MR. KEITH: I'm sorry.

24 COMMISSIONER HUR: Or exert force over his wife.

25 MR. KEITH: That's what Ms. Lopez said she

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1 understood it as. She said that --

2 COMMISSIONER HUR: Okay. Where's that testimony?

3 MR. KEITH: Well, there's two things. One is a

4 text message she sent on January 4th that said, "Use

5 your power." She was asked during the hearing, "What

6 does that mean?" She says, "It's your power because

7 you've just become sheriff and you're a supervisor."

8 That's in her testimony.

9 So she understood his power to mean that. And of

10 course, that's circumstantial evidence of what she

11 probably meant when she was saying, "He said he's very

12 powerful" in the video and to Ms. Williams and to Ms.

13 Madison, and those sections are cited in our support for

14 the proposed findings of fact.

15 COMMISSIONER HUR: Yeah. You cited a lot, though.

16 MR. KEITH: We did.

17 COMMISSIONER HUR: And I reject a lot of it, but

18 I'm -- okay.

19 MR. KEITH: And I'm happy -- you know, I'm happy to

20 give specific page/line references after I have a chance

21 to sit down and look at the testimony.

22 COMMISSIONER HUR: Thank you.

23 MR. KEITH: Now, I know that there was another

24 question about why we should believe that Sheriff

25 Mirkarimi was being deceitful with regard to the

1453
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1 weapons.

2 Now, recall what the sheriff said. The sheriff was

3 confronted with an EPO that required him to turn over

4 his weapons. The police officers have said, or I should

5 say Inspector Daniele has said, "The agreement that we

6 made was that his attorney would call us, meaning me and

7 my partner, Inspector Becker, the next day to turn over

8 the weapons."

9 Now, they went to Sheriff Mirkarimi. They said,

10 "We see you have three weapons."

11 Sheriff Mirkarimi said, "Oh, you know what? I have

12 two of those three weapons. But that third weapon, I

13 sold it in 1996 to a recruit at the police academy."

14 And what was Sheriff Mirkarimi's explanation for

15 that? He said he was thinking out loud. He didn't know

16 where the weapon was, and he wanted to be helpful.

17 Well, if a person doesn't know where his weapon is and

18 he's confronted with an order that says, "Give me your

19 weapon. Give me all your weapons. This is required,"

20 he's going to say, "I don't know where it is." He's not

21 going to say, "I disposed of it on this date and in this

22 way to this person in this transaction," to give details

23 about how this transaction supposedly happened. It's

24 not credible.

25 Now --

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1 COMMISSIONER HUR: But what's the -- but the guns

2 get turned over all at the same time.

3 MR. KEITH: They do, but the process for how the

4 guns get turned over also shows us that Sheriff

5 Mirkarimi's account of what that agreement was is not

6 credible.

7 COMMISSIONER HUR: Okay. But if even if it

8 wasn't -- even if he said the words that Inspector

9 Daniele says that he said, what's the motive there to

10 lie about selling the guns 15 years ago if they end up

11 all being in the same place and they all get turned over

12 together?

13 I mean, what was he trying to -- are you trying to

14 make some allegation that he was trying to keep the gun,

15 that -- that one gun from the police so that he could

16 have it for himself? I mean, what's the "there" there?

17 MR. KEITH: I think Sheriff Mirkarimi was

18 confronted with this order, didn't like the idea of

19 having to turn over his firearms. I mean, I don't think

20 anybody likes the idea of having to turn over what they

21 have.

22 And he made a stupid decision that he shouldn't

23 have made and he decided that he -- that, "Well, I've

24 been confronted with this. I don't want to give these

25 to the San Francisco Police Department. I'm suspicious

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1 of them. They have -- you know, I don't have a great

2 relationship with them. I want to keep the weapons

3 under my control."

4 I'm not saying the decision was rational, but it's

5 understandable that somebody who doesn't want to turn

6 over his weapons and is suspicious of the agency that

7 he&# 39;s turning them over to could make that decision. So

8 that would be -- that would be the motive, is that he

9 simply doesn't want these weapons to be in the hands of

10 the police department.

11 And, you know, to me or to you, that may not seem

12 like a very good motive or a very good choice to make,

13 but -- I don't think it was a very good motive or a very

14 good choice for him to make, but he nevertheless did it.

15 There's no explanation for why somebody would -- would

16 essentially make up stories about selling a weapon when

17 they could simply say, "I just don't know where it is."

18 COMMISSIONER STUDLEY: How about -- do you make

19 anything of giving the guns to the sheriff's department

20 instead of the police department? And then let's not

21 forget the witness dissuasion.

22 MR. KEITH: Right. Well, the giving of the weapons

23 to the sheriff's department rather than the police

24 department. So again, I think -- I think we're looking

25 at the same motive here. "I don't want to give" -- you

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Closing Arguments and Deliberations
1 know, "Well, I definitely don't want to give up my

2 guns," and "Okay. Well, maybe I'm going to have to give

3 them up because I don't want to out and out violate a

4 court order, but I still don't want to give these

5 weapons to the San Francisco Police Department. I want

6 to keep them in my agency."

7 And again, this doesn't seem like a very sensible

8 thing to do, but there are a lot of things that Sheriff

9 Mirkarimi did in this course that isn't a very sensible

10 thing to do. And I think if you look at what his

11 testimony was at the hearing to explain this, you're

12 going to find that that testimony was not credible and

13 it's rebutted by the actions that the people took

14 following the agreement that Sheriff Mirkarimi

15 described.

16 Sheriff Mirkarimi said, "We are going" -- said that

17 the agreement was, "Well, my lawyer -- the agreement was

18 my lawyer was going to give the weapons to the sheriff's

19 department and the sheriff's department was going to

20 give them to the police department."

21 That was his testimony before this commission about

22 what the agreement was. Well, what happened next? We

23 know from Inspector Daniele's declaration that the next

24 day, when he spoke on the phone with Captain Gorwood

25 from the sheriff's department, she didn't have any idea

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1 that was the plan. He offered to come over and get the

2 weapons. She said, "No, we'll take care of it."

3 So this is the plan that Sheriff Mirkarimi has

4 supposedly made, but he sends over a member of his staff

5 and doesn't inform her of that plan? Because certainly,

6 if she'd known that were the plan, she would have given

7 the weapons to her counterparts at the police

8 department.

9 But then the next thing that happened conclusively

10 disproves Sheriff Mirkarimi's testimony at the hearing,

11 and that is this: There was a court date the following

12 week where Sheriff Mirkarimi's attorney, of course, was

13 present, the same attorney who was present when Sheriff

14 Mirkarimi was served with the order and when this

15 agreement was allegedly made. The district attorney

16 asked the judge to issue an order to the sheriff's

17 department telling the sheriff's department to turn over

18 the weapons to the police department.

19 Now, if the plan was as Sheriff Mirkarimi

20 described, his attorney would have said, "Okay. That's

21 the plan." But his attorney didn't do that. His

22 attorney objected. He tried to stop that order from

23 getting issued. So the explanation that Sheriff

24 Mirkarimi gave of that agreement to this commission is

25 not credible. It's disproven by the actions of the

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1 staff who are supposedly part of this agreement and by

2 his own attorney, who was present when this discussion

3 was had.

4 So I think that the commission can conclude from

5 that that Sheriff Mirkarimi's testimony in relation to

6 this gun issue is not -- is simply not credible, and

7 that that lack of credibility with regard to the guns is

8 related to the same poor judgment and poor

9 decision-making that led him to take these deceitful

10 actions in the first place with regard to his guns.

11 And then the last thing I would want the commission

12 to see about why this all matters: We submitted, and

13 it's in evidence, a transcript of this particular

14 hearing where the judge explained that, in a domestic

15 violence case, especially one involving the sheriff,

16 things need to be done by the book and those weapons

17 have to be with the police department. They should not

18 be with the sheriff's department.

19 The Superior Court judge recognized that it's not

20 enough for the sheriff himself to turn the weapons over

21 to his own agency and she issued that order, so that's

22 also evidence that the commission can look at about why

23 this matters.

24 It's the sheriff not doing things by the book, it's

25 the sheriff thinking that the rules don't apply to him,

1459
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1 and it's the sheriff using his own staff to try and keep

2 his guns out of the rightful hands where they should be

3 for whatever motive that he had. It was an improper

4 motive, but he did it.

5 Now I want to talk about the witness dissuasion.

6 Commissioner Hur, if you could remind me of what your

7 questions were on that point so I can cover that?

8 COMMISSIONER HUR: So first, who did he dissuade?

9 I mean, your brief mentions Ms. Lopez. It also

10 references a lot of other testimony and evidence that we

11 heard.

12 But are we just talking about the efforts to

13 dissuade Ms. Lopez, or are you -- are you alleging

1 4 official misconduct based on dissuasion by the sheriff

15 of any other individual?

16 MR. KEITH: Yes, we are, and with regard to Ms.

17 Madison. And this is how they're different. The

18 sheriff worked directly on Ms. Lopez. He coupled his

19 pleas to her to not go to the police with a threat about

20 the consequences that would follow regarding custody and

21 he got his campaign manager involved. This is all in

22 the effort to try and get Ms. Lopez not to go to the

23 police. So that's Ms. Lopez.

24 And then the sheriff became aware of what

25 Ms. Peralta Haynes and what Ms. Lopez were doing on his

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1 behalf with regard to Ms. Madison and Mr. Mertens later

2 in the day. Of course, the sheriff did not directly

3 speak with them, but he found out about it. And we

4 spent so much time looking at those records of what

5 happened on January 4th -- how close together, how

6 frequent those calls were, how they were interspersed

7 with Ms. Lopez's communications with Ms. Madison and

8 Mr. Mertens. It's inconceivable that the sheriff didn't

9 know what was going on and didn't act in response to

10 what he had initiated.

11 COMMISSIONER HUR: So the argument is that he found

12 out about it and told Ms. Lopez to tell Ms. Madison that

13 she should not go to the police, that something bad is

14 going happen to her if she does or that he's going to

15 use his -- the power of his office somehow to prevent

16 her from doing -- going to the police or cooperating

17 with them? I mean, where -- what --

18 MR. KEITH: With regard to Ms. Lopez or with regard

19 to Ms. Lopez's efforts?

20 COMMISSIONER HUR: Well, I'm just trying to find

21 out -- I mean, you conceded that the sheriff didn't talk

22 to Ms. Madison.

23 MR. KEITH: Of course.

24 COMMISSIONER HUR: And the two people who

25 apparently did are Ms. Lopez and Ms. Haynes.

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1 So for Ms. Lopez, are you alleging that the sheriff

2 told Ms. Lopez that she should tell Ms. Madison to not

3 talk to the police because the sheriff would use his

4 power against Ms. Madison if Ms. Madison did so? I

5 mean --

6 MR. KEITH: No. No, there's no allegation that the

7 sheriff threatened to use his power against Ms. Madison.

8 No, the basis of this -- of this -- of this sort of

9 the latter efforts that happened on January 4th, where

10 Ms. Lopez was essentially turned and started to work on

11 these other witnesses, was that the sheriff knew about

12 it and didn't do anything.

13 COMMISSIONER HUR: Okay. So this --

14 MR. KEITH: And he may very well have encouraged

15 it, but we certainly know he knew about it --

16 COMMISSIONER HUR: This is the inaction.

17 MR. KEITH: -- and did nothing.

18 COMMISSIONER HUR: This is the inaction point, that

19 he should have encouraged Ms. Madison to go to the

20 police, but did nothing? Is that --

21 MR. KEITH: Well, he should have responded to the

22 efforts that his wife and Ms. Peralta Haynes were making

23 with regard to Ms. Madison because it was interfering

24 with an ongoing law enforcement investigation at that

25 point.

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1 COMMISSIONER HUR: I guess I'm just not clear

2 what --

3 Okay. So you're saying he should have done

4 something that he didn't do --

5 MR. KEITH: Yes.

6 COMMISSIONER HUR: -- with respect to Ms. Madison.

7 And what exactly should he have done with respect

8 to Ms. Madison?

9 MR. KEITH: Number one, he should have at least

10 tried to persuade his wife not to continue calling

11 Ms. Madison and trying to interfere with it. He

12 actually did the opposite.

13 COMMISSIONER HUR: Okay. So stop there.

14 So he should have tried to convince his wife to

15 stop dissuading Ms. Madison?

16 MR. KEITH: I'm giving an example of an effort that

17 he should have taken. We know he did nothing.

18 COMMISSIONER HUR: And the fact that he didn't do

19 that, and I think the evidence -- my view is that the

20 evidence doesn't show he did that, that he didn't try to

21 dissuade his wife, but you think we should find that he

22 committed official misconduct because he didn't try to

23 convince his wife to stop telling Ms. Madison not to

24 call the police. That's --

25 MR. KEITH: That's one of the things. But there

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1 were actually -- there was a text message that he sent

2 to his wife where he told her, "You have to reject

3 Ivory's actions. We both do."

4 So there, he's even encouraging his wife to do it.

5 So that is actually taking action. Now, I think that

6 his duty -- I think he still had a duty to do something,

7 but we do have an action of him encouraging his wife to

8 do that. We also -- we also have his knowledge it's

9 happening.

10 Another thing he could have done is simply called

11 up Ms. Madison and say, "You know, I understand there's

12 a police investigation. My wife may said some things to

13 you about not talking to them. You should cooperate

14 with the investigation. I have nothing to hide."

15 That probably would have -- I mean, that would be,

16 I think, the ideal thing to do, you know, because that

17 is -- after all was the object of those witness

18 dissuasion efforts.

19 COMMISSIONER HUR: So other than Lopez and Madison,

20 is there anyone else that you're alleging he dissuaded

21 from going to the police or cooperating with the police?

22 MR. KEITH: Well, I think -- I mean, I think

23 Mr. Mertens is wrapped up with Ms. Madison, but no. No,

24 yeah.

25 COMMISSIONER RENNE: Did you think he had an

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1 affirmative duty to tell his wife or -- that "You ought

2 to cooperate with the investigation"?

3 MR. KEITH: What he, you know -- oh, to tell her to

4 cooperate with the investigation? No, I think he -- I

5 think what he -- I think his duty was about having her

6 not go and try and interfere with the investigation with

7 regard to other witnesses.

8 She can do whatever it is that she -- that she

9 wants, though after -- oh, I'm sorry. You know what? I

10 think I misunderstood the question, because early on, he

11 did make those efforts to --

12 COMMISSIONER HUR: I'm sorry to interrupt you,

13 Mr. Keith.

14 I appreciate that the public is invested in this

15 but we -- it's very important that you not have

16 outbursts, not have any comments or noises, and I'm

17 instructing the sheriff's office right now to please --

18 without me interrupting, if you see someone making

19 noise, please just remove them from the room. Thank

20 you.

21 MR. KEITH: I think with regard to his wife, he had

22 an affirmative duty to not pressure her to not go to the

23 police and to not make threats and to not enlist his

24 campaign manager in efforts to dissuade her. I think he

25 had those duties. Whether or not -- you know, I don't

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1 think he had a duty to tell his wife, "Well, I committed

2 a crime. Go to the police."

3 He didn't have a duty to do that. But I think --

4 you know, but that's not what happened here, so we don't

5 have to deal with that. He actually took acts to try to

6 prevent his wife from going to the police.

7 COMMISSIONER HUR: Thank you, Mr. Keith.

8 Unless there are other questions from the

9 commissioners, your time is up. Thank you.

10 MR. KEITH: Okay.

11 MR. WAGGONER: Good morning, Commissioners.

12 I want to begin by thanking you for your service to

13 the City and County of San Francisco for this very

14 unusual proceeding. This has taken an extensive amount

15 of time on everyone's part, and I just want to thank you

16 on behalf of myself, the sheriff, my co-counsel,

17 Ms. Canny, and Ms. Lopez for your careful consideration

18 of the evidence and the law in this case.

19 This morning for our closing argument, I'm going to

20 spend a few minutes talking to you about discretion and

21 vagueness, and then I'm going to turn it over to

22 Mr. Kopp, who is going to address official misconduct

23 and the facts as relates to official misconduct.

24 COMMISSIONER RENNE: Before you start,

25 Mr. Waggoner, could I make comment?

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1 As somebody who's tried cases for a lot of years

2 and appeared before a lot of judges, you didn't do your

3 client any favor by starting off your brief by saying

4 "At the end of a[n] unnecessarily protracted dog and

5 pony show."

6 Is that what you consider these proceedings to be?

7 MR. WAGGONER: Respectfully, Commissioner, no,

8 absolutely not. I certainly do not consider that your

9 consideration --

10 COMMISSIONER RENNE: You understand that we're

11 mandated. Once the mayor took action, we had no choice

12 whether or not to have such a hearing, and counsel for

13 the sheriff and counsel for the city -- for the mayor

14 got together and said how they wanted it to be

15 conducted.

16 MR. WAGGONER: With all due respect, Commissioner,

17 I apologize for the use of that phase. It certainly was

18 not meant to describe your consideration, what this

19 commission has been doing under its obligation under the

20 City Charter.

21 That was solely meant to describe the mayor's

22 presentation of evidence and the mayor's bringing of

23 this case, which we have felt from the outset was not

24 called for in any stretch, either under official

25 misconduct or was a reasonable exercise of the mayor's

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1 discretion.

2 The test for vagueness is whether or not the

3 statute at issue, in this case 15.105, has sufficient

4 definiteness that ordinary people could understand what

5 conduct is prohibited. That's number one. That's the

6 first prong of the test for vagueness.

7 The second prong is does the manner or the language

8 of the statute encourage arbitrary and discriminatory

9 enforcement? And under both of those prongs, can we

10 understand what conduct is prohibited and does it lend

11 itself to arbitrary and discriminatory enforcement?

12 Under both of those, we would say that the 15.105 is

13 unconstitutionally vague whether we're talking about

14 Option 1 or Option 2.

15 Now, how do we tell if the application of a statute

16 is arbitrary or discriminatory in its enforcement?

17 Well, we look at the context, the consistency. How are

18 other examples of alleged wrongdoing dealt with by the

19 mayor, by the city, by other enforcement bodies? Was

20 the mayor's suspension in this case -- was it arbitrary?

21 Was it discriminatory? Was it consistent with how this

22 mayor has treated other cases of alleged wrongdoing by

23 city officials? Was it consistent with how other mayors

24 have handled similar cases?

25 I respectfully submit to you that no, it was not

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1 consistent with how this mayor has dealt with other

2 cases of alleged wrongdoing, and it was not consistent

3 with how the city -- how other mayors have dealt with

4 cases of alleged wrongdoing by elected officials. This

5 was only the third time in the history of San Francisco

6 that a city mayor has suspended an elected official for

7 alleged official misconduct.

8 The first time was in 1932. Mayor Frank Rossi

9 suspended the public defender, Frank Egan, for murder.

10 Mr. Egan went on to spend 25 years in federal prison.

11 The second time was in 2007. Mayor Gavin Newsom

12 suspended Supervisor Ed Jew for perjury and extortion --

13 again, both felonies. Mr. Jew is in prison today.

14 The third time is in the present case. Sheriff --

15 excuse me -- Mayor Lee suspended Sheriff Mirkarimi for,

16 according to his original press release, his plea, the

17 sheriff's plea, to a misdemeanor violation of Penal Code

18 Section 236, misdemeanor false imprisonment. The

19 sheriff spent no time in jail; he was cited and

20 released.

21 So you have three very serious felonies, involving

22 very serious prison time, and then, in this case, a

23 low-level misdemeanor and no jail time or prison time.

24 The facts could not be more different. It's obviously

25 extremely very, very inconsistent to how other mayors

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1 have dealt with alleged official misconduct.

2 COMMISSIONER LIU: Mr. Waggoner, in those other two

3 cases that you're referring to, did they involve the

4 office of the sheriff? Did they involve the sheriff

5 himself or herself?

6 MR. WAGGONER: No. In the first case it was a

7 public defender and in the second case it was a

8 supervisor.

9 COMMISSIONER LIU: Thank you.

10 COMMISSIONER RENNE: Counsel, do you agree with me

11 that our job here is a two-step job, and that is first

12 to determine whether or not there was misconduct that

13 reaches the level of official misconduct under the

14 definition and, if we say yes, there was, we still have

15 the question of did the mayor exercise his discretion in

16 a reasonable manner?

17 MR. WAGGONER: Yes, Commissioner. I absolutely

18 agree with that two-step process.

19 And as to whether or not the mayor's decision to

20 suspend was a reasonable exercise of his discretion,

21 you've heard from opposing counsel. And it's absolutely

22 true in 15.105, there are instances where the mayor must

23 suspend. It's not discretionary.

24 If a person is convicted of a felony crime

25 involving moral turpitude and if this commission then

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1 determines that that's a crime that warrants removal,

2 then the mayor must remove from office. So that tells

3 us right away that there may be felony crimes involving

4 moral turpitude that would not warrant removal from

5 office.

6 So, however, we -- I agree with the mayor that it

7 is a discretionary decision. And when the mayor came

8 before you and testified before you, he was asked very

9 directly, "Well, Mr. Mayor, are there other crimes that

10 might warrant suspension? For example, a DUI. Would

11 that warrant suspension?"

12 And the mayor said, "Well, I don't know because I

13 haven't thought about it."

14 Well, if the mayor doesn't know what other crimes,

15 misdemeanors, would warrant removal from office because

16 they would constitute alleged official misconduct, then

17 how can any official be on notice? If the mayor doesn't

18 even know what other misdemeanors would constitute --

19 that would warrant removal, that would warrant

20 suspension, how can anyone be on notice? So --

21 COMMISSIONER RENNE: Counsel, can -- in determining

22 whether or not the mayor exercised his discretion in a

23 reasonable manner, can the mayor and/or this commission

24 take into account what the elected official did, what

25 the public official did, between the time that the

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1 alleged misconduct occurred and the time when he is

2 removed from office or suspended from office?

3 MR. WAGGONER: You mean can the commission take

4 into account the suspending authority's conduct or the

5 removed official's conduct?

6 COMMISSIONER RENNE: The conduct after. In other

7 words, let's assume in a case that a public official

8 commits an act which would constitute official

9 misconduct. And between the time that he commits the

10 act or she commits the act and when the mayor exercises

11 his discretion, can he take into account what happened

12 in between in regard to that public official's conduct

13 relating to investigation, for example?

14 MR. WAGGONER: Well, I believe, yes, that the mayor

15 can take into account -- he can use -- exercise -- he or

16 she can exercise discretion.

17 The question is is the discretion reasonable? Was

18 it a reasonable exercise of discretion? The mayor can

19 take into account any kind of conduct. But the question

20 is was it reasonable? Is it reasonable to suspend an

21 elected official for any kind of alleged conduct,

22 whether it was the conduct that occurred at one point in

23 time or how the official, the accused official, dealt

24 with that afterwards?

25 COMMISSIONER STUDLEY: Mr. Waggoner, I'd appreciate

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1 your explaining in the course of your discussion of

2 vagueness what you think our role and what the ethics

3 committee's responsibility is with regard to vagueness.

4 Some of what I'm hearing sounds to me like this belongs

5 in a court if certain circumstances took place. And

6 that our job is quite explicitly to assemble a record

7 and make a recommendation, so I'm wondering where the

8 vagueness argument fits in.

9 MR. WAGGONER: Thank you, Commissioner.

10 I agree that that question is a very, very

11 important one. And in fact, you probably know that we

12 went to Superior Court prior to this commission process

13 getting started and made that very argument, that 15.105

14 is unconstitutionally vague.

15 The judge at the time said, "Well, let this process

16 play out. If you don't like the result, then come back

17 and see me," basically, and said, you know, the Ethics

18 Commission -- let the Ethics Commission make that

19 determination, whether -- they can decide whether or not

20 it's vague or the other, the merits of the case.

21 So as to your recommendation and your

22 resp onsibility under the Charter, I would respectfully

23 submit that if you do find that 15.105 is

24 unconstitutionally vague, then you cannot make a

25 recommendation for removal. I don't see how you could

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1 do that if you find that the law itself is

2 unconstitutional.

3 COMMISSIONER STUDLEY: I -- well, this will be

4 subject to our discussion. I don't think determining

5 constitutionality is part of what I signed on for as a

6 commissioner, and I don't think we have that authority.

7 I think we have a responsibility to do something,

8 and whether we can or cannot may go to whether it is

9 vague. But we have to see that as we deal with the

10 charge and the facts before us.

11 So I'd really like to know what you think we do

12 today that is related to this vagueness consideration or

13 whether you're alerting us to an argument you made pre

14 and might make post.

15 MR. WAGGONER: Well, the charter requires the

16 commission to make a rec- -- compile a record and make a

17 recommendation. It doesn't say which questions of law

18 that you may consider when -- in making the -- that

19 substantiates or that is the basis of your

20 recommendation.

21 So I would respectfully suggest that the commission

22 can take into account its own interpretation of what the

23 law is and the facts are to make its recommendation to

24 the board. And if that doesn't involve a finding or a

25 conclusion of law as to 15.105, that is certainly within

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1 the commission's purview. I believe that if the

2 commission wanted to make such a finding or a conclusion

3 of law as to 15.105, that would also be in your purview.

4 I'd like to move on very -- and wind up here and

5 then turn it over to Mr. Kopp. A few other facts that

6 we know of that would -- I already talked about the

7 inconsistency of the suspension in terms of

8 San Francisco history. I would like to talk for a

9 moment about the inconsistency of how this mayor has

10 dealt with other alleged wrongdoing.

11 The current Department of Public Works head was

12 found to have committed -- by the City Attorney's

13 Office, the current city attorney, to have committed

14 many acts of wrongdoing, and the mayor did not suspend,

15 did not remove from office, but rather promoted that

16 individual, against the strenuous objections, I might

17 add, of City Attorney Dennis Herrera.

18 COMMISSIONER LIU: Mr. Waggoner, is this anything

19 we have in the evidence here?

20 MR. WAGGONER: Yes, it is. I've submitted it with

21 a brief. There was a memo. I don't have the date in

22 front of me, but it was a memo from the City Attorney's

23 Office, from Dennis Herrera's office, regarding Mohammed

24 Nuru.

25 Beyond that, last year, this very commission

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1 recommended --

2 MR. KEITH: Commissioners?

3 COMMISSIONER HUR: Are you standing?

4 MR. KEITH: I'm sorry. I'm sorry to interrupt.

5 That document is not in evidence. It was submitted as

6 an attachment to an earlier brief. It has not been

7 admitted before the commission.

8 COMMISSIONER HUR: You know, in my view, the

9 rel- -- the relevance of what you're talking about is

10 tangential at best. It's -- I don't -- my recollection

11 is similarly it's not in evidence. But this is

12 argument. It's mostly legal, I think, so I would be

13 permitted to allow Mr. Waggoner to proceed.

14 If there are objections from my fellow

15 commissioners, perhaps we should discuss.

16 MR. WAGGONER: I can withdraw the comment.

17 I think the point holds, which is that this mayor

18 has treated this case differently than he's treated

19 other cases. I think the record, the public record,

20 shows that and this evidence shows that.

21 Beyond that, what other facts show that the mayor

22 abused his discretion? His charges kept changing. In

23 the original press release, he said he was suspending

24 the mayor for a plea to misdemeanor 236. Then the

25 charging document said it was the plea plus domestic

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Closing Arguments and Deliberations
1 violence plus maybe witness dissuasion. He wasn't clear

2 on that originally in the charging document. It was

3 maybe there might have been witness dissuasion. And

4 then finally, the mayor's amended charges threw in the

5 gun allegations as well.

6 The mayor testified that he talked to Ivory Madison

7 but he never bothered to talk to Eliana Lopez, even

8 after being encouraged to do so by both the sheriff and

9 former Mayor Art Agnes. The mayor admitted he suspended

10 first and asked questions later. The mayor submitted a

11 declaration from Ms. Madison that, in the words of

12 Commissioner Renne, was designed to poison the well.

13 Finally, I -- at the very last hearing, we requested

14 subpoenas regarding whether the mayor's testimony was

15 truthful.

16 All of those facts -- the charges changed, who the

17 mayor talked to, when he talked to them, the fact that

18 he never talked to Ms. Lopez, the questions about his

19 credibility and truthfulness -- all that goes to whether

20 or not he reasonably exercised his discretion. I

21 respectfully submit to you that he did not, and if you

22 find that he did not, then you must recommend to the

23 board that the sheriff be reinstated.

24 And at that, I would like to turn it over to

25 Mr. Kopp to address the definition of official

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1 misconduct and the facts. Thank you.

2 COMMISSIONER HUR: Thank you, Mr. Waggoner.

3 MR. KOPP: Thank you. Good morning, Commissioners.

4 I want to start off by addressing the point that

5 you raised, Commissioner Renne, about our comment about

6 this dog and pony show. That was not intended to

7 reflect on anything that you or any of the other

8 commissioners have done. In fact, we appreciate the

9 effort that you have made. That was a comment on what

10 we view as a completely unnecessary and superfluous

11 presentation by the mayor.

12 So if it offended anyone, we apologize for that,

13 but that is our view, and it is a strongly held view.

14 We have objected throughout these proceedings to much of

15 the evidence that they have wanted to put before you

16 because we don't think it bears any relation to what

17 your task is here. So that's the explanation for that

18 line.

19 COMMISSIONER RENNE: Well, Mr. Kopp, I would say,

20 though, that the remark struck me as being akin to the

21 statement that was made by your client that this is a

22 private matter.

23 MR. KOPP: Well --

24 COMMISSIONER RENNE: It shows a certain amount of

25 arrogance about the requirement to follow the law.

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1 MR. KOPP: Well, I -- then I want to correct the

2 record and make it clear that we understand and

3 appreciate that the commission must carry out its duty

4 under the charter, and we know that you all try to do

5 that in a conscientious manner.

6 Now, I do want to discuss what we think the meaning

7 is of "official misconduct," and that inevitably leads

8 me to discuss the Mazzola case at length. One of the

9 things that I want to say about Mazzola is that at that

10 time in 1976, there's no doubt in my mind that Mayor

11 Moscone and the then-members of the Board of Supervisors

12 were intelligent, conscientious public servants and they

13 took their jobs seriously, and I don't think anybody

14 involved in that case or that proceeding took it

15 lightly, and yet they got it wrong.

16 Now, that didn't help Mr. Mazzola. He was able to

17 clear his name several years after the fact, when the

18 Court of Appeal reversed the removal finding, but he was

19 already out as a commissioner. His term had expired.

20 And I think that points out the perils of you making a

21 recommendation for removal and later the board voting to

22 remove, because this is a rarely brought proceeding and

23 it's a proceeding that can have the effect of

24 contravening the will of the electorate.

25 And we see this type of a proceeding and the law

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1 that governs it as completely different from many of the

2 cases that have been cited to you by the mayor and his

3 attorneys, some of which are from other jurisdictions,

4 some of which are from other procedural settings. There

5 is a major difference between cases that discuss

6 termination of hired employees and the situation here,

7 which is the attempted removal of an elected official.

8 Now --

9 COMMISSIONER HUR: So is it your view that an

10 elected official should not be subject to the same

11 standards that an employee should be subject to who's in

12 a similar position?

13 I mean, the sheriff's -- the people who work under

14 the sheriff would be subject to the employment standards

15 that some of these cases discuss. Why should the

16 sheriff not be subject to those?

17 MR. KOPP: I don't -- I'm not saying that he should

18 not be subject to the same standards. I just don't

19 think that you can import principles of law from other

20 cases that deal with administrative discipline of

21 employees. I don't see this as an administrative

22 hearing.

23 COMMISSIONER HUR: But what's the legal or logical

24 reason why we should not borrow from those cases?

25 MR. KOPP: Well, I think that you can look to them.

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1 You could consult them, but I don't think that they

2 should be the primary authority here.

3 Our contention has always been that the primary

4 authority here is the Mazzola case because it is the

5 only higher court decision that deals with official

6 misconduct under the San Francisco Charter.

7 Now, we recognize that at least one commissioner

8 has expressed the view that maybe Mazzola doesn't apply

9 because the charter definition changed since the Mazzola

10 case was decided. But as I tried to point out in the

11 brief that we submitted, the current definition of

12 "official misconduct" under the charter draws almost

13 entirely from the language used in the Mazzola opinion,

14 and what is -- the two points that are most critical

15 about that opinion from our perspective are, number one,

16 that the official misconduct has to occur while the

17 official is in office, and much of what the mayor has

18 alleged here occurred before the sheriff was sworn in.

19 Now, they have presented you with a parade of

20 horribles about why this cannot be the correct

21 interpretation. They have said if an elected official

22 is elected and then robs banks during that period

23 between the election and the time he's sworn in -- well,

24 we can't have that situation.

25 That can't be the definition of the charter. There

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1 has to be a way to address pre-swearing-in testimony.

2 Well, the fact of the matter -- sorry. Not

3 pre-swearing-in testimony; pre-swearing-in conduct. The

4 fact of the matter is the charter is an imperfect

5 document.

6 And I would like to make the point here that if

7 the -- there is no removal provision for the mayor. If

8 the mayor is elected and, before he is sworn in, decides

9 to go out and rob some banks, there's nothing in the

10 charter that will allow him to be removed for official

11 misconduct. Okay? So this is not -- I mean, the

12 charter can be amended, perhaps, to plug holes in it.

13 They want to imply this pre-office-holding

14 authority to suspend, but it's not there. And the

15 Mazzola case specifically says official misconduct is

16 mis conduct that occurs while you're in office, and

17 that's one of the reasons why that case is --

18 COMMISSIONER RENNE: Well, Mr. Kopp, the Mazzola

19 case, as you've pointed out, this definition that we

20 have before us now was not before the court in Mazzola.

21 Presumably, it was written and drafted after the Mazzola

22 decision.

23 And you're right, the first part of it does track

24 the Mazzola opinion, but the second part, the "or,"

25 would seem to be filling in a gap that Mazzola left out

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1 and that is "or conduct that falls below the standard of

2 decency, good faith and right action impliedly required

3 of all public officers," so that one could say reading

4 Mazzola what the charter drafters were concerned about

5 is that if we limit it just to what Mazzola said, we

6 don't get -- the broader coverage that we want is we

7 don't want our public officials to have conduct which

8 falls below some standard.

9 Now, you're arguing that that standard is so vague

10 that it can't be enforced. But isn't that the logical

11 reading of why Mazzola doesn't control us, because we've

12 got language that didn't exist in Mazzola?

13 MR. KOPP: Well, my answer to that -- there are a

14 few ways to respond, and I'll try to best address those

15 points.

16 I agree that there is at least one word in the

17 current definition that was not even mentioned in

18 Mazzola, and that's "decency." But it is our view, and

19 I believe that the mayor has conceded, that it's Option

20 2 as proposed by the chair that makes the most sense and

21 that has to be applied.

22 Now, of course, you can come to a different

23 determination. Even if the parties agree, you can

24 decide differently. But the parties do agree that you

25 have to couple the decency clause with the wrongful

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1 behavior in relation to the duties. So I hope that

2 addresses that question.

3 But we go one step further than the mayor, because

4 we believe that for there to be official misconduct, it

5 has to be while an official is either performing his

6 specified duties or failing to perform those duties, and

7 that there is not a standalone morals clause that can

8 apply to whatever a public official does in his or her

9 private life.

10 So -- and there is another point that I wanted to

11 make on this subject. We do think that Mazzola remains

12 good law on these two critical issues: One, that you

13 have to be engaged in the performance of your duties to

14 be guilty of official misconduct; and two, that that

15 misconduct, whatever it is, or conduct has to occur

16 while you're in office, not during the time period when

17 you've been elected but not sworn in. And the reason

18 why --

19 COMMISSIONER HUR: Can I interrupt you on the

20 "while in office"?

21 MR. KOPP: Yes.

22 COMMISSIONER HUR: In Mazzola, was the "while in

23 office" meaning performing the duties of office or was

24 it because he wasn't in the official position yet?

25 My understanding was that he was a commissioner at

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1 the time. So this -- when Mazzola says "while in

2 office," I don't think they're talking about the

3 situation where you're pre-swearing in; they're talking

4 about the position -- the situation where you are not

5 performing the duties of your office when you're leading

6 a strike.

7 MR. KOPP: No, I agree with you. That's correct.

8 COMMISSIONER LIU: So Mazzola doesn't address your

9 timing issue.

10 MR. KOPP: Well, it does in the sense of in

11 surveying the various legal authorities that the Court

12 of Appeal decision surveyed, including Black's Law

13 Dictionary, Am.Jur., as well as some other state

14 cases -- and they're cited there, the Hale case, the

15 Harby case, the Wachter case -- it -- it kind of

16 gathered together all these legal authorities, all of

17 which -- I mean, if you look at those cases, they all

18 deal with public officials who are in office at the time

19 there is some misconduct that is alleged.

20 Now --

21 COMMISSIONER LIU: Well, wasn't Mazzola really

22 addressing the question of the relationship of his job

23 as a commissioner versus his job as a business agent for

24 the union?

25 I mean, that's a relationship question, not a

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1 timing, while-somebody's-physically-in-office question.

2 MR. KOPP: Well, in our view, there were two main

3 issues that were addressed and decided in Mazzola, and

4 the primary issue is certainly whether or not as an

5 airport commissioner there was any relationship between

6 that and Mr. Mazzola's actions advising his union to go

7 on strike. That is correct.

8 However, before they could even reach that point,

9 they had to address the void-for-vagueness challenge,

10 and the way that they rejected that void-for-vagueness

11 challenge was by referring to these longstanding

12 definitions of "official misconduct."

13 And so when the court looked at the three cases

14 that I just mentioned as well as the other legal

15 authorities, they decided no, this isn't vague because

16 there's an understood notion of what official misconduct

17 is, and what it is is conduct that occurs while you're

18 in office.

19 Now, to address the Chair's question about did they

20 make any determination as far as a pre-swearing-in time

21 period or a post-swearing-in time period, no, they did

22 not. But I don't think, as the mayor has argued, that

23 this definition of official misconduct is dictum. It

24 forms the basis of the opinion.

25 COMMISSIONER STUDLEY: But -- and then the language

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1 of the charter was changed by initiative.

2 MR. KOPP: Correct.

3 COMMISSIONER STUDLEY: And what we -- how do we

4 know that the change was in order to reinforce, as you

5 would say, an in-office requirement, that the conduct

6 must be in office, or to make clear that that wasn't

7 what the voters intended?

8 MR. KOPP: Well --

9 COMMISSIONER STUDLEY: The fact that there is a

10 change after something happens doesn't tell you in which

11 direction they intended it to be, and the words "in

12 relation to the duties" are quite -- there were other

13 words available, if the initiative had wanted to say

14 "while you are holding that office" or "while conducting

15 that office," so how do we know which direction we're

16 meant to go?

17 MR. KOPP: Well, I mean, if it's difficult to tell,

18 then I think you have to adopt the interpretation that

19 favors the accused in this situation. But I think that

20 there's an easier way to answer that. You know, any

21 statute -- when you're construing a statute, it has to

22 be harmonized with other laws, if possible, if it won't

23 do violence to the interpretation of the statute.

24 And I think that you have to look at the current

25 charter definition of "official misconduct" that was

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1 enacted after Mazzola, clearly draws from the Mazzola

2 opinion, and say that the drafters, whoever they may

3 have been, were well aware of what Mazzola had to say

4 about this issue. And so it has to be interpreted in a

5 way that is consistent with the Mazzola decision.

6 And there is one other point that I would like to

7 make, and I'm certainly willing to entertain --

8 COMMISSIONER HUR: Can I stop you, then --

9 MR. KOPP: Sure.

10 COMMISSIONER HUR: -- while we're on this point?

11 As a policy matter, is there any justification for

12 why this should not apply to an elected official who's

13 not yet sworn in?

14 I mean, to say that the charter's imperfect and the

15 people didn't vote in a provision that was perfect is

16 not very compelling to me. I mean, I want to know why,

17 in your view, we should take a restrictive view of

18 "public official" that would absolve him of or immunize

19 him from being suspended for official misconduct prior

20 to his actual swearing in.

21 MR. KOPP: There's a very simple answer to that,

22 and that is the primacy of the will of the electorate.

23 There is a provision in place -- it's called the

24 recall -- that can be used to remove a public official

25 that the voters want to get rid of, and that's the

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1 democratic way to do it.

2 Now, admittedly, it can take some time because you

3 have to wait six months until after the official is

4 sworn in to start gathering the signatures, so it can

5 take close to a year to remove the public official, but

6 that's the democratic way to do it. Bringing these

7 proceedings is far too susceptible to the vagaries of

8 politics.

9 COMMISSIONER STUDLEY: But the voters knew all

10 that, in theory. The way we have to read this is that

11 the voters understood that there was a recall option

12 available, and they said, "We need this."

13 It's not as though we or the supervisors or the

14 state said, "You need to do something different and

15 override the recall provision."

16 Why doesn't this harmonize perfectly with the

17 voters' saying, "We want an additional tool and process

18 and we, the voters, will design and put it into place

19 because in our view the recall process is not

20 sufficient"?

21 Whatever the reasons were why they wanted this to

22 do -- it's the voters who said, "We want another tool,"

23 not some third party or our determination that adds this

24 to the armamentarium.

25 MR. KOPP: Well, to be fair, I don't think the

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1 voters created this new tool out of whole cloth. It's

2 existed in the charter for almost a hundred years. The

3 power to remove for official misconduct has been in the

4 charter. It's just they changed -- they tweaked the

5 procedure a bit, creating the Ethics Commission.

6 COMMISSIONER STUDLEY: Right. "They refined it and

7 reviewed it repeatedly" is another way to describe the

8 same thing.

9 MR. KOPP: Exactly. But to answer your question, I

10 think you have to assume that the voters were aware of

11 the state of the law, and the state of the law has not

12 been in California, so far as I can tell -- and the

13 mayor has not cited any case to this effect, that allows

14 a person who has been elected but not yet sworn into

15 office to be removed for any act that occurred before

16 they're sworn into office.

17 There's just no such case that exists, and that's

18 why they've had to go to other jurisdictions to try to

19 persuade you that this is the right interpretation. And

20 again, at the risk of beating a dead horse, I'll --

21 COMMISSIONER STUDLEY: Right. We just -- we don't

22 know whether those cases don't exist because nobody

23 tried to discipline situations that arose or whether

24 there were no such factual situations. That's just it.

25 MR. KOPP: Of course. Of course. And I don't want

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1 to move away from this if there's anything left

2 unanswered.

3 But one other point that I want to make about this:

4 The mayor has argued that law enforcement can -- should

5 never -- a law enforcement officer should never run

6 afoul of the law, should never commit anything that can

7 be charged as a crime, and a law enforcement officer

8 should never be convicted. As a matter of f act, their

9 expert witness said, you know, you get convicted, you

10 should be fired immediately.

11 That's not the case here in San Francisco. There

12 are many, many law enforcement officers who have been

13 convicted of misdemeanors and remain on duty and serve

14 honorably.

15 And this goes to the point that I think

16 Commissioner Renne raised. There's a two-part process

17 here: You determine whether or not there's official

18 misconduct and then you decide whether or not this was a

19 correct use of the mayor's discretion.

20 I would maybe add something to that, as suggested

21 in our brief. I think if you did find that there was

22 some level of official misconduct, you could make the

23 recommendation that it doesn't warrant removal.

24 And the mayor has argued any -- you know, law

25 enforcement has a special duty because they're required

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1 to investigate, they're required to do certain things.

2 I mean, you could look at what happens with judges who

3 can be fairly said to be bound to uphold the law and

4 apply it fairly, and I personally know several judges

5 who have been convicted of misdemeanors and who are not

6 removed from office.

7 I mean, the fact of the matter is it has to be

8 recognized that people sometimes make mistakes and they

9 sometimes run afoul of the law. It doesn't necessarily

10 warrant removal. And clearly, the facts of this case,

11 in our view, do not warrant removal.

12 Unless the commissioners have further questions, I

13 would submit.

14 COMMISSIONER HUR: I want to talk to you about a

15 couple of facts.

16 MR. KOPP: Sure.

17 COMMISSIONER HUR: We're -- in my view, I'm going

18 to credit Inspector Daniele's testimony because he

19 submitted a declaration and he was not cross-examined on

20 it. So in my mind, it's credible that the sheriff told

21 Inspector Daniele that he sold his gun in 1996 to some

22 cadet.

23 In your view, I assume you don't think that's

24 official misconduct. But what's the justification for

25 making this untrue statement to Inspector Daniele?

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1 MR. KOPP: Well, I think that the question assumes

2 something that's not necessarily -- okay. It may be an

3 untrue statement, but as you yourself, I think, focused

4 in on when you were asking Mr. Keith some questions, how

5 do you know that it was made with any wrongful intent or

6 intentionally? Perhaps the sheriff just didn't remember

7 what happened with the gun.

8 You know, I can't really give you a proper answer

9 on that. I can't give you a proper explanation. But I

10 can reiterate what the mayor said, which is that by

11 itself isn't anything that would warrant removal. If

12 it's not, then the question is why are we even

13 discussing it? Is it to make weight because the rest of

14 the allegations aren't sufficient?

15 So in my view, whether or not the sheriff made a

16 truthful or untruthful statement regarding the guns

17 really doesn't have much relevance. I mean, the point

18 of an EPO is to get guns out of the hands of the person

19 who's accused and into law enforcement's hands. That's

20 the point, and that's what was done here. And whether

21 it went to the sheriff's department first and was then

22 turned over to the police department is really

23 immaterial.

24 I mean, who knows why his lawyer objected to that

25 transfer? I don't.

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1 COMMISSIONER RENNE: Staying to the facts a little

2 bit, and I've been troubled by the question, and I asked

3 Mr. Waggoner that, as to whether or not, in determining

4 whether or not the mayor acted reasonably in exercising

5 his discretion, he could take into account the events or

6 the acts that occurred between the time of December

7 31st and the March 19th date when he acted.

8 And one of the troubling things is Ms. Lopez's

9 assertion of the attorney-client privilege. Based upon

10 her testimony, it was absolutely clear to me and it was

11 clear to the court that ruled against her on that point

12 that she wasn't talking to her as a lawyer. She had

13 talked to her over a period of a year about problems

14 with her marriage and said she talked to her as a

15 friend.

16 And when she talked to Ms. Haynes and told her

17 about her discussions with Ms. Lopez, she didn't say, "I

18 went to Ms. Madison as my lawyer." It was clear she was

19 saying, "I went to Ms. Madison, and I didn't think she

20 would disclose it. I thought it would be confidential."

21 But there was never -- there's not a scintilla of

22 evidence in the record that supports a claim of

23 attorney-client privilege. And that troubles me, that

24 in an investigation -- it would have been one thing if

25 Sheriff Mirkarimi had said on January 4th, when this

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1 thing first arose, "You know, I did a terrible thing.

2 It was a mistake. I -- I'm sorry about it, and I" --

3 you know, but that isn't the course of conduct that they

4 took for the next three months, which was -- or two

5 months, was essentially stonewalled.

6 MR. KOPP: Well --

7 COMMISSIONER RENNE: Can the mayor take that into

8 account?

9 MR. KOPP: Well, in my view, no, and primarily for

10 the fact that Ms. Lopez had a different attorney than

11 the attorney who presented Sheriff Mirkarimi.

12 If there was one lawyer representing the two of

13 them, it might be a different situation, but whatever

14 actions were taken by Ms. Lopez in asserting the

15 attorney-client relationship between herself and

16 Ms. Madison can't be attributed to the sheriff. There's

17 no evidence that he --

18 COMMISSIONER RENNE: Well, it could be attributed

19 to the sheriff to the extent that he could have said,

20 "Hey, I don't want that raised. I want to just get this

21 over with. I want to lay the facts out, not let the

22 newspapers tell what the facts are. I'm going to tell

23 you what the facts are," as he told us here.

24 If he'd have done that on January 5th, I don't

25 think any of us would be here.

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1 MR. KOPP: Well, but that assumes, then, that

2 Ms. Lopez -- again, that assumes she's going to do what

3 he tells her to do. That assumes that Ms. Canny will do

4 what he tells her to do. It assumes a lot of things

5 that may not be provably true.

6 So I do agree with you that the mayor can take into

7 account events that happened after he was sworn in up

8 until the time of the plea. I also think that you

9 should take into account what the sheriff was able to do

10 during the time period that he did serve, and it's clear

11 from his testimony that he was in the midst of

12 accomplishing significant progress in the sheriff's

13 department.

14 COMMISSIONER HUR: I want to ask you about the

15 Ms. Lopez video. In there, she refers to the sheriff as

16 having said he's a powerful man. Now, the mayor is

17 arguing that that demonstrates a concerted use of his

18 power as sheriff to dissuade Ms. Lopez or get advantage

19 in a custody dispute.

20 Why isn't that the most logical reading of that

21 testimony? I mean, what else could he have meant?

22 MR. KOPP: Well, here's what I see as the problem

23 with this whole powerful-man argument. There isn't any

24 specific -- there's no specific language. I mean,

25 saying you're a powerful man can mean any number of

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1 things. Yes, it is -- one reasonable interpretation

2 could be that he's an elected official and he has or

3 believes himself to have more power than the average

4 person.

5 I mean, I think there's a real question about the

6 truth of that statement. You know, I don't know that if

7 you go into court in a custody dispute, you're going to

8 be treated any differently by a bench officer just by

9 virtue of the fact that you hold a public -- public

10 office.

11 But getting back to your question, I think that

12 that is a reasonable interpretation, but I think that

13 having heard the explanations from both the sheriff and

14 Ms. Lopez, it is clear and it's equally reasonable that

15 he was talking about child-custody laws and how they may

16 favor the person who has citizenship here, and certainly

17 that they are going to -- you know, I mean, we've come a

18 long way from the days when the custody of a child was

19 pretty much automatically awarded to the mother. The

20 father has significant rights that are recognized in

21 family court.

22 COMMISSIONER HUR: Thank you, Mr. Kopp.

23 MR. KOPP: Thank you.

24 MR. KEITH: Thanks, Commissioners. I'll see how

25 much I can cover in five minutes.

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1 And what I'm going to do is I'm going to talk about

2 the facts, because I think some of the facts here make

3 these legal questions that we're facing easier because

4 we're making a decision here by reference to facts that

5 we actually have in a real record before the commission.

6 And I think one; thing that's crucial here is that

7 a course of conduct is pled. It's a course of conduct

8 that began on December 31st, 2011, and continued until

9 the day that the sheriff was suspended. It includes his

10 missteps and his misbehavior in the investigation, his

11 public statements, and most significantly, the discredit

12 and the dysfunction that he would bring to the sheriff's

13 department were he to continue as a convict in that

14 office after March 19th, 2011.

15 I think when we look at this as a course of

16 conduct, the timing issues go away. I think that the

17 commission was spot on on the significance of Mazzola on

18 this point, which is that it didn't speak to the timing

19 issues. And all the policy reasons favor a timing issue

20 that doesn't create this period of immunity for an

21 elected official.

22 But you know what? We don't have to go there

23 because we have a course of conduct where many of the

24 consequences that spun out of this conduct were

25 preventable, but Sheriff Mirkarimi, by his actions and

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1 his errors and his conduct, invited those consequences.

2 COMMISSIONER HUR: Let me ask you about Mazzola

3 because I -- I didn't -- I kind of find both of you a

4 little bit off on what Mazzola means, because I'm

5 looking at page 149 of the opinion, and the court goes

6 into this assertion that official misconduct under

7 attack is virtually the same as misconduct in office.

8 It then refers to the Black's Law Dictionary and the

9 Am.Jur.

10 And in both, in the Am.Jur. def- -- I'm sorry. In

11 the Black's Law Dictionary, it does have this language,

12 "by a public officer in relation to the duties of his

13 office," and then the court, using that, finds that that

14 means that it has to be misconduct that occurs that has

15 a direct relationship of the alleged wrongdoing to the

16 office held. And it also says the violation or omission

17 must be "committed while in office."

18 Now, and I understand that you are now saying that

19 this -- Mazzola dealt with unlawful conduct and we're

20 dealing with wrongful conduct, and I appreciate that

21 distinction. But Mazzola -- but the charter uses that

22 same "in relation to the duties of office" that we use

23 in our charter.

24 So why should we not follow how Mazzola interpreted

25 "in relation to the office" the way -- and apply it to

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1 our charter, since it's the same language, the same

2 words, and Mazzola requires a much more direct

3 relationship than you're suggesting is required?

4 MR. KEITH: Okay. That's a good question, and

5 there's an easy answer and a hard one.

6 And the easy answer -- I don't mean to be flip --

7 was that Mazzola dealt with a charter provision

8 regarding official misconduct that forbade official

9 misconduct, no definition whatsoever. They had to come

10 up with a definition.

11 COMMISSIONER HUR: Okay. But you understand --

12 MR. KEITH: Right. No, I mean --

13 COMMISSIONER HUR: -- we're in a situation where

14 there's very little case law, so we're --

15 MR. KEITH: Then in '95, the voters came up with a

16 definition, and they took part of from Black, they

17 took -- changing it; they took part of it from Am.Jur.,

18 changing it; and they've changed it since.

19 Now, I have here -- and I'm sorry I don't have

20 multiple copies of this for the commission. What I have

21 here is the Black's Law definition that was quoted in

22 Mazzola and then the beginning of the charter

23 definition. We don't go on to add the "decency"

24 language, but it continues to add the "decency"

25 language.

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1 So the thing about Mazzola -- the thing about the

2 Black's language is it didn't get into the decency

3 issues; it didn't get into the professional standards

4 issues like -- in the same way that the Am.Jur.

5 definition did. So the Am.Jur. definition has that. We

6 get those decency issues. And the relationship test for

7 a decency test is the standard required of an official

8 who holds that office.

9 COMMISSIONER HUR: That's a fair point, but you've

10 conceded that the "decency" clause is limited by the

11 "relation to the duties" clause.

12 So I can't see any reason why you'd read clause --

13 the -- how did you label it? -- the inaction clause to

14 have a certain type of relation to the duties, but the

15 conduct clause to have a different one. I think they've

16 got to be the same. I mean, if it's going to relate to

17 the duties, any one of the subclauses has to relate to

18 the duties in the same way.

19 MR. KEITH: They don't. They don't have to relate

20 to the duties in the same way, and the reason why is

21 this: We look at the professional licensure cases --

22 real estate agents, lawyers, you name it -- you can

23 commit a wrongful act that shows that you don't have the

24 qualities to be in that profession, and that alone

25 satisfies the nexus requirement. It satisfies that

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1 relationship test.

2 So the relationship test does mean very different

3 things when you're talking about sort of the strictly

4 construed legal duties of office, which again is what

5 Black's was focused on. But then the charter -- pardon

6 me -- widened that definition to include all wrongful

7 behavior, and "wrongful behavior" encompasses violation

8 of that office-specific standard.

9 So I don't think the relationship test means the

10 same things, particularly when we think how much Mazzola

11 was focused on unlawful behavior. You know, what are

12 the -- you know, there was no violation of a statutory

13 duty here.

14 But we have a new definition now, so I think we

15 need to look at Mazzola's discussion of the relationship

16 test and the need for something tied closely to

17 statutory duties as something that was also tied to its

18 definition of unlawful behavior.

19 So the issue is different. The relationship test

20 is different. I mean, that's why it's okay, for

21 example, for a real estate agent to have a conviction

22 for possession of drugs, but it's not okay for a peace

23 officer to have a conviction for possession of drugs.

24 They're both indecent conduct, but one of them has a

25 relationship with the duties of office; the other one --

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1 the duties of the position; the other one doesn't.

2 And we interpret these kind of morals clauses,

3 let's call them, in relation to what are the qualities,

4 the ethics, the morals that we expect a person in this

5 particular position to hold based on the kind of trust

6 that's at issue.

7 COMMISSIONER HUR: So -- and you've advocated a

8 common-sense test for this relationship test. Right?

9 MR. KEITH: That's what the law says, and that's

10 what we've advocated.

11 COMMISSIONER HUR: And so explain to my why I as a

12 commissioner on the Ethics Commission should be

13 comfortable applying a common-sense test. And whose

14 common sense should I be applying?

15 MR. KEITH: Well, the common-sense test is what do

16 people in this position do?

17 And of course, as commissioners, we don't know

18 that, so we have witnesses who come in and say, "Here's

19 what a chief law enforcement officer is expected to do."

20 We have declarations from the sheriff, outlining -- or

21 from the acting sheriff, outlining all the different

22 responsibilities of the sheriff, whether policy

23 responsibilities, operational responsibilities; we have

24 exhibits, we have documents from the sheriff's

25 department outlining these responsibilities, the rules

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1 and regulations that govern everybody in the department.

2 So it's a common-sense test, but it's one that --

3 it's a fact-based test, fundamentally, about what people

4 in this office do. And one of the functions of the

5 commission has been to collect that evidence, and that's

6 the evidence that supplies what is in relation to the

7 duties of office. So it's a common-sense relationship

8 in that sense.

9 COMMISSIONER HUR: I have one other question, and I

10 apologize for monopolizing your time. At page 9 of your

11 brief, you appear to agree that there's a difference

12 between personal misconduct and official misconduct.

13 Is that -- do I have that correctly?

14 MR. KEITH: In that there are some things you could

15 do that are completely personal that wouldn't be a

16 proper basis for removal. That's right.

17 COMMISSIONER HUR: Okay. I just wanted to make

18 sure I understood that.

19 MR. KEITH: Yes. Yes.

20 Now, Commissioners, again, I think, again, the

21 facts help us. Much as they help us with this issue of

22 what the relationship test is, they help us in

23 understanding does this warrant removal, because the

24 sheriff's fundamental argument is -- I mean, it begins

25 with a premise that this is just a nonviolent

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1 misdemeanor, a fact that we know not to be true based on

2 the testimony that came in at this hearing. That's

3 their initial premise. But then they say, "Well, even

4 if it was, you know, it's still not enough. There needs

5 to be more."

6 And I think that the evidence that came in on the

7 conduct showed it was more. But beyond that, the

8 consequences that have followed from that conduct for

9 this department, for law enforcement in this city, and

10 for domestic violence law enforcement in particular, the

11 sheriff has made statements that alienated victims, that

12 discouraged -- he's engaged in conduct that would

13 discourage any witness from coming forward and reporting

14 a crime that's committed by a high official.

15 These are things that a sheriff just cannot do. He

16 did them, and he did these things as a consequence of

17 what happened, but he made choices along the way. These

18 choices as well were wrongful conduct. They may have

19 begun with a terrible, terrible incident, but the

20 sheriff consistently took actions that caused negative

21 further consequences for his department and for this

22 city.

23 There's no question that this type of conduct

24 warrants removal. He committed a violent crime against

25 his wife. He violated that trust.

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1 MR. WAGGONER: I'm going to object at this point.

2 MR. KEITH: He is not suited to fulfill the trust

3 of this office.

4 MR. WAGGONER: They're way over time.

5 COMMISSIONER HUR: Mr. Waggoner, overruled.

6 MR. KEITH: I've concluded. I thank the commission

7 for its time and attention.

8 COMMISSIONER HUR: I want to say a couple things.

9 First, I want to thank the parties for their

10 argument and for their cooperation throughout these

11 proceedings. As you and the public know, this was

12 somewhat of a novel endeavor that we engaged in, and

13 your cooperation was very helpful in getting us through

14 it.

15 I also wanted to thank Mr. Emblidge, who has

16 donated his and his firm's time pro bono to help us

17 negotiate some of these issues, and of course the

18 commission staff for their help, as well as the public.

19 We -- your interest has been significant, and we

20 certainly appreciate the role you play in the commission

21 doing its work.

22 So here's the plan: Let's take a short break and

23 then, after the break, we will begin with public

24 comment. Again, public comment will be limited to two

25 minutes.

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1 Is there a procedure that you would like us to

2 follow as far as people lining up or how should we --

3 DEPUTY SHERIFF: We do have a line outside.

4 COMMISSIONER HUR: -- do this? Okay.

5 DEPUTY SHERIFF: And we can have people -- because

6 we've got people in the north light court --

7 COMMISSIONER HUR: Okay.

8 DEPUTY SHERIFF: -- they can start coming in

9 through the right here -- actually, go around and then

10 straight out.

11 COMMISSIONER HUR: So your idea would be to start

12 with the people outside and then have people inside do

13 public comment at the end? What are you saying?

14 DEPUTY SHERIFF: Would you rather have the people

15 who are in here? They stood in line first, the people

16 who are in here.

17 COMMISSIONER HUR: Should do public comment first?

18 DEPUTY SHERIFF: Yeah, they stood in line. They

19 got here first.

20 COMMISSIONER HUR: Right. Okay. And then they --

21 you want them to file out after they have given their

22 comment and then have to come back in?

23 DEPUTY SHERIFF: They could actually stay. The

24 people that are here, they stood in line. I would

25 suggest -- it's up to you -- but if they could just go

1507
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1 retain their seat.

2 And then after that, we could start form- -- we

3 already have a line set up outside, sir. And then we

4 can start escorting people from the north light court up

5 here.

6 COMMISSIONER HUR: Okay. Okay. Do you have any

7 estimate of how many people are lined up outside?

8 DEPUTY SHERIFF: One second, please.

9 DEPUTY SHERIFF TWO: There's only about --

10 DEPUTY SHERIFF: How many people in the north light

11 court? In the north light court, how many people do we

12 have?

13 DEPUTY SHERIFF TWO: One twenty-two.

14 COMMISSIONER HUR: Okay. Given those numbers --

15 and I want to ask my fellow commissioners -- should we

16 take a ten-minute break, go through public comment, and

17 then take a lunch break, even if that means lunch

18 occurs, you know, around 1:00 o'clock or later? Or

19 would you prefer to try some other means of proceeding?

20 COMMISSIONER HAYON: Take a break.

21 COMMISSIONER HUR: Take a short break now, go

22 through public comment, and then take a lunch break?

23 Okay. Let's do that. So let's take te n minutes.

24 So let's come back at 11:10, and then we'll begin the

25 public comment.

1508
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1 (Recess taken from 11:02 a.m. to 11:15 a.m.)

2 (From 11:15 a.m. to 2:33 p.m., public comment,

3 contained in a separate transcript, was

4 elicited)

5 (Lunch recess taken at 2:33 p.m.)

6 ---o0o---

7 DELIBERATIVE SESSION 3:35 p.m.

8 COMMISSIONER HUR: Okay. We are back in session

9 after the lunch recess.

10 We're now going to enter the deliberation phase of

11 this hearing, and I want to remind the public that -- I

12 should probably warn the public, this will be no

13 surprise to you, that given the divergent views that we

14 heard during public comment, I can almost assure you

15 that you will hear something that you don't like coming

16 out of the mouths of the commissioners.

17 I ask, however, that you respect the process, that

18 we don't get any clapping or jeering or really any

19 sounds from the audience. We really need to sort of

20 focus here and try to reach a resolution in this matter.

21 As a result, I'm again instructing the sheriff

22 to -- sir? Excuse me. Sheriff, the law enforcement in

23 the room? If you see anybody make an outburst, please

24 remove them from the room. I would actually prefer if

25 you had somebody else in here too so that you had four

1509
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1 eyes on it. And we're going to have to have a

2 no-tolerance policy on this. I apologize in advance,

3 but this is really what we have to have.

4 Okay. My proposal for how to go about deliberating

5 on these issues is to start with the factual issues,

6 then move to the legal issues, and then ultimately

7 discuss our views on the ultimate issue of whether the

8 facts as applied to the law constitute official

9 misconduct.

10 Does that sound acceptable to my fellow

11 commissioners?

12 COMMISSIONER LIU: Yes.

13 COMMISSIONER HUR: Okay. I will introduce each of

14 what I consider to be the salient facts. I will express

15 a quick summary of my view and invite discussion on

16 whether we think this particular fact was established.

17 I think there are -- obviously, there were a number

18 of facts that were presented in front of us over the

19 course of the last several months, but I think we should

20 hone in on the ones that could possibly sustain the

21 charge of official misconduct.

22 And I think those facts that we should discuss are

23 as follows: First, whether the physical abuse of

24 Sheriff Mirkarimi against Eliana Lopez occurred; second,

25 whether there's evidence that -- a preponderance of the

1510
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1 evidence that the sheriff abused his office by

2 threatening to use his power as the sheriff to take away

3 custody of his child; third, I think we should address

4 the dissuasion of witnesses, Ms. Lopez and Ms. Madison;

5 fourth, I think we should address the gun issue; and

6 finally, I think we should address the support -- the

7 sheriff's failure to support and encourage victims to

8 come forward.

9 First, the physical violence against Eliana Lopez.

10 I think it's beyond dispute that that occurred. I think

11 that that conduct was clearly wrongful. It was clearly

12 unlawful. And frankly, I found it disturbing that the

13 sheriff got up here and testified in a way that sought

14 to minimize the severity of that conduct.

15 Is there any discussion as to whether or not the

16 mayor was able to establish that the sheriff willfully

17 abused his wife on December 31st, 2011? The --

18 COMMISSIONER LIU: I would just echo what you said.

19 I agree that, to me, the evidence shows that a more

20 serious incident occurred than just what has been

21 characterized as "an arm grab." I think there was a

22 tremendous amount of evidence that shows the severity

23 and the seriousness of the incident that took place.

24 We have the video that was a more or less

25 contemporaneous account of what happened, which was

1511
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1 corroborated by what Ms. Lopez told her neighbors

2 shortly thereafter and which the sheriff's own witness,

3 the campaign manager, did describe as a domestic

4 violence incident, so I do think the evidence, to me,

5 shows a more serious incident than what the sheriff has

6 sought to minimize in these proceedings. So I would

7 echo and agree with Chair Hur on that fact.

8 COMMISSIONER HUR: Commissioner Studley.

9 COMMISSIONER STUDLEY: I think this is in addition

10 to what Commissioner Liu was saying.

11 For me, the video is also the more credible source

12 as to whether there were previous acts of physical

13 abuse, to use your phrase, because I thought that they

14 were the contemporaneous and clearer articulation than

15 the testimony here about whether physical acts had taken

16 place before, than the testimony that we got in this

17 proceeding.

18 COMMISSIONER HUR: Any other views from the

19 commissioners?

20 COMMISSIONER HAYON: Let me add my views as a

21 layperson following all the legal issues that have been

22 discussed.

23 To me, it's very simple. Number one is the video

24 that we have seen that Ms. Lopez taped, albeit with the

25 assistance of her friend and neighbor, Ivory Madison.

1512
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1 But there's no way to look at that video and not believe

2 that something serious occurred regardless or despite

3 whatever she may say now. But at that moment, that's a

4 very emotional and, quite frankly, disturbing video, an

5 indictment of her husband. Now, she's an actress. I

6 don't know. Was it an act? I have no way of knowing.

7 I believe what I saw. And so that is number one.

8 And number two, in the end, Ross Mirkarimi pleaded,

9 you know -- made a plea bargain. So he pleaded guilty

10 to perhaps something lesser. I don't know if it would

11 be lesser or greater in terms of false imprisonment.

12 But in any plea deal, there's a lot of discussion, and

13 perhaps by pleading to this, he avoided a much more

14 serious issue. I don't know. We didn't hear what those

15 discussions were between all the attorneys in coming up

16 with that plea deal.

17 But I think those two things are an indictment of

18 what occurred. It's true none of us were there. We

19 don't know what took place. But based on those two

20 things, something serious did take place, and the

21 sheriff ultimately pleaded guilty to it.

22 COMMISSIONER HUR: The second fact that I think we

23 should discuss is the alleged abuse of office, the

24 sheriff's threat to use the power of his office to take

25 away custody of his child from Ms. Lopez.

1513
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1 These allegations are disturbing. There was

2 evidence about the use of the term "powerful" in terms

3 of what the sheriff said to Ms. Lopez. My preliminary

4 view, though, is that there's not enough to sustain a

5 charge of official misconduct based on this allegation.

6 I do not think that the mayor has proven by a

7 preponderance of the evidence that the -- there was a

8 threat by the sheriff to use the power of his office to

9 take away his child. I think the allegations are too

10 vague to be proven in this case.

11 I welcome the views of my fellows commissioners.

12 COMMISSIONER RENNE: I would agree.

13 COMMISSIONER STUDLEY: Yeah. I would agree with

14 you. I found the testimony unconvincing. I was not

15 convinced by the explanation that it meant the power of

16 the custody laws. But even if I read the "I'm a

17 powerful man" or "I have power," that it wasn't

18 connected enough to anything else to make it a ground

19 for a conduct violation.

20 I was troubled by it. I didn't like the sound of

21 it, but it may have -- but there are a number of ways to

22 interpret it, even if I leave aside the unconvincing

23 power of the custody laws -- power of my connections,

24 financial power, citizenship power. Some of them -- you

25 know, articulateness, English-language speaker, whatever

1514
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1 it was. But I think we would need more crispness or

2 more of a nexus to think that it was abuse of office by

3 threatening to use that specific kind of power in a

4 judicial setting.

5 COMMISSIONER HUR: The next fact that I think we

6 should consider is the dissuasion of witnesses. There

7 were two witnesses who the mayor identified as being

8 dissuaded. The first was Ms. Lopez, and I think we

9 should take them one witness at a time.

10 Now, Ms. Madison does testify in her declaration

11 that Ms. Lopez told her that the sheriff instructed her

12 not to go to the police and not to tell anyone about the

13 abuse. Now, Ms. Lopez, of course, contradicts this in

14 her testimony. Given that the sheriff chose not to

15 cross-examine Ms. Madison on this point, I do think we

16 need to take it as credible, but subject to the fact

17 that I do think it's hearsay, and I did not see any

18 non-hearsay evidence from the mayor's side to show that

19 the sheriff made attempts to dissuade Ms. Lopez from

20 going to the police.

21 Now, the mayor primarily made his case on the

22 inferences caused by the telephone messages, the text

23 messages, and the e-mails. And one could certainly

24 infer from those messages that the sheriff called --

25 told his wife to call Ms. Peralta Haynes, that he

1515
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1 instructed Ms. Peralta Haynes to try to dissuade

2 Ms. Lopez from talking to the police or reporting this

3 incident, that Ms. Peralta Haynes was successful in that

4 effort. That is a plausible -- I think that is a

5 plausible read of the facts, but I don't think

6 "plausible" is enough to prove by a preponderance of the

7 evidence that those actions in fact occurred.

8 Of course, I also would like to say that I didn't

9 find Ms. Lopez's testimony with respect to the

10 conversations with Ms. Haynes to be particularly

11 credible at times, but still I think, on balance, the

12 mayor was not able to sustain this piece of evidence.

13 I welcome the views of my fellow commissioners.

14 COMMISSIONER RENNE: Mr. Chairman, I take it when

15 you say that, you're talking about as a separate charge

16 of misconduct.

17 COMMISSIONER HUR: Correct.

18 COMMISSIONER RENNE: Because as we get further in

19 discussion, I do think there is some relevance to at

20 least the conclusions I reached about the pattern of

21 phone conversations between Ms. Peralta Haynes,

22 Ms. Lopez, and the sheriff. And when I pressed her on

23 saying, "Were there any discussions about sort of how

24 you would strategize?"

25 "Oh, no, no. All we were doing was to support

1516
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1 Ms. Lopez."

2 Well, in the real world, the sheriff was facing the

3 fact that this was going to go public and how do you --

4 how do you spin it? And that's what those

5 conversations, I believe, were probably about, and that

6 they were more "How can we deflect what's going to be

7 obviously our political enemies' using it to their

8 advantage?"

9 But I wouldn't -- I don't think there's evidence to

10 support a separate charge of misconduct under the

11 charter based on that.

12 COMMISSIONER HUR: Any other views from the

13 commissioners?

14 Yeah, I too -- I mean, that was really the part of

15 the testimony that I found not credible as well, this

16 notion that they had these conversations, that the

17 sheriff was clearl y involved in those conversations, and

18 that they weren't -- that Ms. Peralta Haynes was somehow

19 not interested in protecting the sheriff as well as

20 Ms. Lopez. I did not find that credible.

21 COMMISSIONER HAYON: Well, in addition to which

22 Ms. Peralta Haynes testified that she couldn't remember

23 the substance of many of those phone conversations. And

24 I don't recall how many there were, but during the

25 course of the day there were -- what? -- 20, 30, 40

1517
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1 phone calls or something? And so to say that you don't

2 remember what you were talking about is completely

3 non-credible. She may believe that she doesn't remember

4 it, but I was not convinced at all.

5 COMMISSIONER STUDLEY: I would -- I would agree

6 with your conclusion. I think there is a very plausible

7 or possible chain that would explain why -- explain

8 better than Ms. Lopez calling someone she didn't know

9 very well and remembering her domestic violence

10 background over that long that would be different from

11 the testimony, but I don't think what we have is enough

12 to sustain a separate charge.

13 COMMISSIONER HUR: I next think we should discuss

14 the witness-dissuasion charges with respect to

15 Ms. Madison.

16 Here, I don't think it's particularly close. I

17 mean, again, it's plausible that the sheriff instructed

18 Ms. Haynes to talk to Ms. Madison and tell her not to

19 cooperate with the police during the brief call, during

20 the brief conversation they had at -- on the telephone,

21 but I do not think we're close to the kind of evidence

22 we would need to find that the sheriff sought to

23 dissuade Ms. Madison or Mr. Mertens from cooperating

24 with the police or reporting the incident.

25 I welcome the views of my fellows commissioners.

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1 COMMISSIONER LIU: I would agree with that. I

2 mean, I think there is an unbelievable -- there was an

3 unbelievable amount of texts and phonecalls during that

4 day, January 4th. We counted it up, I think, over 20

5 calls and texts between the campaign manager,

6 Ms. Peralta Haynes, and Sheriff Mirkarimi, and then over

7 30 calls and texts with Ms. Lopez throughout the day.

8 But at the end, it looks like the campaign manager

9 was really at the hub and the center of all of the

10 activity that day, and I did not think that there's -- I

11 do not think that there's enough evidence to take that

12 and infer by a preponderance of the evidence that the

13 sheriff was orchestrating it, necessarily.

14 I do think there was some interesting coincidence

15 that after a number of these texts or phonecalls,

16 shortly thereafter, Ms. Lopez would send a text or call

17 Ms. Madison and say, "Don't call the police. Forget

18 everything I told you," but I don't think there's enough

19 to connect it with the sheriff orchestrating it or

20 directing it.

21 COMMISSIONER STUDLEY: And I would concur with

22 these two, but like Commissioner Renne on another point,

23 I want to leave aside the atmosphere that was created

24 later and the whole sense of -- for the moment, call it

25 respect or disrespect for the participation of witnesses

1519
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1 and whether that was sort of a conduct and tone that

2 were being -- in which the sheriff was engaged. But on

3 this point, I agree with you.

4 COMMISSIONER HUR: Okay. The next issue I think we

5 should address are the guns.

6 You'll probably recall that when we first -- when

7 this first came up in the Daniele declaration, I

8 suggested we strike it, that it seemed very tangential

9 to what was going on in front of us.

10 Frankly, the sheriff doesn't help -- didn't help

11 himself when he got up on the stand and testified

12 inconsistently with what he told Inspector Daniele.

13 Again, he was not -- Inspector Daniele was not

14 cross-examined, meaning that we need to take his

15 admissible testimony, the portions that are admissible,

16 as -- I think we need to consider them credible. And so

17 I do think the mayor was able to establish that the

18 sheriff told Inspector Daniele that he sold his gun in

19 1996 to a fellow cadet, or I can't remember the exact

20 individual for whom the sheriff said he sold the gun to.

21 So the question then is whether that was simply a

22 mistaken statement or whether that was in fact a willful

23 attempt to deceive the inspector. This was a closer

24 call in my mind than I thought it would be when the

25 evidence came in. I do think, though, that in light of

1520
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1 the fact that all the guns were collected at the same

2 time that -- I do not think the mayor has sustained by a

3 preponderance of the evidence that the sheriff was

4 willfully attempting to deceive Inspector Daniele when

5 he suggested -- when he said that he had sold the guns

6 in 1996 or sold one of the guns in 1996.

7 Both -- sort of both sides of the argument require

8 some, you know, trying to connect the facts with

9 argument, but as with some of these other facts, I do

10 not think that it was able -- it was sustained by a

11 preponderance of the evidence.

12 And I welcome the views of my fellow commissioners.

13 COMMISSIONER STUDLEY: I'd be interested in -- and

14 maybe you are subdividing these pieces related to the

15 guns, but the matter of -- do you think of it as a

16 separate question about the matter of providing the guns

17 to the -- returning the guns to the sheriff's office and

18 not to the police department and the related

19 potential --

20 COMMISSIONER HUR: I do. I was thinking of them as

21 separate.

22 COMMISSIONER STUDLEY: Okay.

23 COMMISSIONER HUR: Separate issues.

24 COMMISSIONER STUDLEY: Okay. I wish I had been

25 told, for example, whether there was another gun as to

1521
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1 which that description applied, and so that it was, you

2 know, a mistake about somebody who held many -- several

3 licenses or whether it was -- which would tell me more

4 about whether it was an intentional effort to mislead.

5 But we didn't have that. We didn't know whether

6 there was a gun that met that description, it just

7 wasn't the third gun --

8 COMMISSIONER HUR: Right.

9 COMMISSIONER STUDLEY: -- in this setting.

10 COMMISSIONER HUR: Right.

11 COMMISSIONER STUDLEY: So it's hard to connect the

12 dots.

13 COMMISSIONER HUR: It is. And I think if the gun

14 was not collected at the time of the other guns, I would

15 probably have found that it was willful because then I

16 could see the basis --

17 COMMISSIONER STUDLEY: The motive.

18 COMMISSIONER HUR: Yeah, the motive for the

19 misstatement. As it stands, I think it's equally likely

20 that the sheriff misremembered having disposed of the

21 gun as it is that he intentionally tried to deceive

22 Inspector Daniele.

23 Okay. With respect to turning over the guns to the

24 police department, you know, again, I -- frankly, I

25 think it was childish. I think this idea that you're

1522
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Closing Arguments and Deliberations
1 going to have a dispute with the court and between

2 departments about who should have the guns is -- it's

3 not something I would expect from our sheriff. I would

4 hope that our sheriff would comply with the letter of

5 the law and would follow the instructions of the court

6 and ensure that the weapons were turned over to the

7 police.

8 But I don't think that whether the guns were with

9 the sheriff or with the police can amount to something

10 that could lead to official misconduct. I mean, the

11 guns were with law enforcement; they were not within the

12 sheriff's custody and control. And so I do not think

13 that the fact that the sheriff's office had the guns

14 rather than the police department can support a charge

15 of official misconduct.

16 COMMISSIONER LIU: I would agree with that. I

17 think the testimony was inconclusive and actually pretty

18 confusing on that point. There was some testimony about

19 whether he was supposed to turn it over to his attorneys

20 and who was even present when that conversation took

21 place. It was -- I don't think the testimony was very

22 conclusive.

23 And then at the end of the day, the sheriff -- the

24 attorneys are correct that the mayor testified that he

25 did not think that that in and of itself could sustain a

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1 charge of misconduct.

2 COMMISSIONER HUR: Commissioner Studley?

3 COMMISSIONER STUDLEY: I agree with your result and

4 I also agree, however, with your comment about behavior,

5 a way of acting that I find uncomfortable. I hadn't

6 thought of "childish," but that applies.

7 I think putting members of the staff of the

8 sheriff's department into the position that the sheriff

9 did, while he was their supervisor, to return the guns

10 to sheriff's department staff and expect them to hold on

11 to them and not give them to the police department and

12 the inconsistent instructions that we heard testimony

13 about is inapprop- -- is insensitive to the dilemma that

14 he puts his line officers in, and I think that was

15 troubling. But this is not a -- we're not here judging

16 people's judgment, although I think it was poor

17 judgment.

18 COMMISSIONER HUR: Okay. The last factual issue

19 that I think could sustain a charge of official

20 misconduct is the efforts to -- the failure to support

21 and encourage potential victims and witnesses to the

22 domestic violence.

23 I think the standard here for official misconduct

24 with respect to these allegations is higher. I think

25 the mayor has in some ways conceded that. The failure

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1 clause requires that the officer fail to perform any

2 duty enjoined on him or her by law.

3 I do not think that the sheriff was required by law

4 to make public statements supporting Ivory Madison. He

5 was at that point a criminal defendant, and I could

6 not -- I am not comfortable with suggesting there's some

7 duty that a criminal defendant needs to go out and make

8 public statements supporting someone who is a witness in

9 the criminal matter against them.

10 Even aside from the criminal matter, I think it's a

11 dangerous precedent to say that an elected official can

12 be held to have committed official misconduct by failing

13 to support individuals who are, at least from his

14 perspective, attacking him. So I do not think that this

15 course of conduct where he failed to encourage and

16 support victims and witnesses can sustain a charge of

17 official misconduct.

18 And I welcome the views of my fellow commissioners.

19 COMMISSIONER LIU: I think I would agree with that,

20 and particularly with respect to himself being the

21 criminal defendant at that point in the process. It

22 would be -- I don't know that we would require or that

23 the law would require him to encourage witnesses to come

24 forward against himself in a criminal process where

25 he's -- where he is the defendant. I think that would

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1 be an awkward precedent to set.

2 COMMISSIONER STUDLEY: I agree that it is a higher

3 bar and that an individual has a right to mount a

4 defense. That said, there -- I wish -- this -- this

5 element broken out this way wasn't explored as

6 thoroughly as some others, and what I'm left not knowing

7 is whether others, who were mounting a much more

8 aggressive, public campaign of criticism, were doing so

9 at -- with the -- at the direction of, the invitation

10 of, the I-can't-do-it-but-would-you-do-it guidance of

11 the sheriff.

12 It was -- it is not a pretty picture of what

13 happened, and I think it has led the public to see this

14 in a much more political and aggressive light than it

15 would have been had that commentary about witnesses not

16 taken place. The press, of course, has its own

17 attraction to certain stories that you can't put at --

18 lay at the feet of any of the participants either.

19 But I don't see the steps to be able to support it

20 rising to the level of either failure to perform a duty

21 enjoined on the sheriff or falling beneath the standard

22 of decency, good faith and right action required by a

23 public officer, particularly when that person is

24 defending on criminal charges.

25 COMMISSIONER HUR: I appreciate your emphasis on

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1 the second clause as well, because I think you're right,

2 it could conceivably fall under that. And I agree with

3 your points. And I also want to echo something you've

4 just said, which concerned me when I heard the sheriff

5 testify to it.

6 I mean, these are -- these really are disturbing

7 allegations, that the sheriff makes an apology to

8 Ms. Madison in his plea statement and gets up on the

9 stand and can't really explain what he's apologizing

10 for. I mean, these are the sorts of things that make

11 clear to me that the conduct was poor.

12 I'm just saying that I don't think it amounts to

13 official misconduct, but I don't want there to be any --

14 any illusion about my view as to whether it was

15 appropriate conduct or not in terms of what I would

16 expect from an elected official. But I do not think it

17 rises to official misconduct.

18 COMMISSIONER STUDLEY: You're talking about just

19 this particular item of --

20 COMMISSIONER HUR: Yes.

21 COMMISSIONER STUDLEY: -- encouraging of witnesses?

22 COMMISSIONER HUR: This particular item, yes.

23 Any other views with respect to the factual

24 allegations?

25 Now, of course, the parties submitted a joint

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1 statement, which was somewhat helpful in us trying to

2 determine what facts we really need to find and discuss

3 here. We've addressed, I think, the most salient ones.

4 There are a couple, though, that I think we may want to

5 address just so that we can ensure that we've

6 established the predicate for our discussion of the law

7 and the application of the law to the facts.

8 I think it is undisputed that the sheriff was

9 elected on November 8th, 2011, and that he was sworn

10 in on January 8th, 2012. I also think that there

11 is -- it was proven by a preponderance of the evidence

12 that he did engage in actions at the sheriff's office,

13 that he was getting up to speed on what his duties would

14 be in the interim between November 8th and

15 January 8th. Let's see. I also think that it was

16 established by a preponderance of the evidence that he

17 pled guilty to false imprisonment.

18 Yes?

19 COMMISSIONER STUDLEY: Can I just ask, since you're

20 going through it, was there an agreement as to -- he

21 continued to serve as supervisor until he was sworn in

22 or until the end of the year? What was the transition?

23 Was he in office as supervisor or was that not addressed

24 by the parties?

25 I'm not trying to add in a new issue, but I

1528
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1 thought --

2 COMMISSIONER HUR: Sure. I don't remember the

3 testimony about when he finished his duties as --

4 COMMISSIONER STUDLEY: Perhaps people here would

5 know.

6 COMMISSIONER HUR: -- sheriff.

7 Mr. Keith or Mr. Waggoner, do you recall the

8 testimony?

9 MR. KEITH: There was documentary evidence

10 submitted showing the sheriff's letter of resignation as

11 a member of the Board of Supervisors that essentially

12 was concurrent with his becoming sheriff.

13 COMMISSIONER HUR: So January 8th.

14 MR. KEITH: January 8th, more or less.

15 COMMISSIONER STUDLEY: So he held public office on

16 December 31st.

17 COMMISSIONER HUR: He did. I think that's an

18 important fact that we should -- that also was

19 established.

20 COMMISSIONER LIU: And I think it looks like it's

21 undisputed between the parties on that point too.

22 COMMISSIONER HUR: The parties apparently disagree

23 as to whether the sheriff restrained Ms. Lopez and

24 violated her personal liberty in paragraph 5, here, but

25 I think that was established.

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1 Any disagreement regarding that?

2 COMMISSIONER LIU: No. I think that was

3 well-established by the sheriff's testimony and by his

4 guilty plea.

5 COMMISSIONER HUR: Okay. We then invited the

6 parties to submit additional findings of fact, and we

7 gave each of them five.

8 I did not find any of them relevant to our

9 determination, but if any of my fellow commissioners

10 would think that any of them should be discussed or

11 addressed, I -- I welcome that.

12 You know what? I should say one other thing

13 about -- I think -- I take that back. Fact 12, which

14 was identified by the mayor, I think is relevant and one

15 that -- but I think one that we addressed. I think that

16 has to relate to the gun charges.

17 I think the remaining -- for example, 13, I think,

18 is a legal conclusion; 14, to the extent that it hasn't

19 been discussed, I think is irrelevant.

20 COMMISSIONER STUDLEY: I'm looking at No. 9. I say

21 that because it relates somewhat to the issue in 14.

22 No. 9 indicating that the matter was a private matter

23 and denying ever verbally or -- being verbally or

24 physically abusive are at least troubling to me in light

25 of the later admissions or at le ast later plea and

1530
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1 comment and testimony here.

2 COMMISSIONER HUR: Let's talk about that, because

3 both you and Mr. Renne have raised -- raised sort of the

4 course of conduct after the arrest.

5 Are you of the view that statements that were made

6 that are reflected in paragraph 9 and also reflected in

7 paragraph 14 have been proven by a preponderance of the

8 evidence?

9 COMMISSIONER RENNE: I'm sorry. I didn't hear.

10 What?

11 COMMISSIONER HUR: Have they been proven? And do

12 you think that they are relevant to our determination?

13 COMMISSIONER RENNE: You mean as to whether he made

14 that statement?

15 COMMISSIONER HUR: Yes.

16 COMMISSIONER RENNE: That it was a private matter?

17 COMMISSIONER HAYON: You said paragraph 9 and what?

18 COMMISSIONER HUR: Paragraph 9 and 14.

19 COMMISSIONER HAYON: Fourteen?

20 COMMISSIONER RENNE: My understanding is it wasn't

21 denied, that it wasn't disputed that that statement was

22 made and what -- the response that the defendant gives

23 was that it was -- it says, "The sheriff's 'private

24 family matter' comment was in a statement given to him

25 by his attorney at the time."

1531
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1 Well, it's still his statement.

2 COMMISSIONER STUDLEY: Really.

3 COMMISSIONER RENNE: It isn't disputing that he

4 made the statement. Maybe he got bad legal advice.

5 COMMISSIONER HUR: Any dissenting view towards

6 that? For that? I'm not asking about the "bad legal

7 advice" comment. I'm asking about in general.

8 Okay. Yeah, I mean, I guess in my view, 9 and 14,

9 to the extent they're factual allegations, some of

10 them -- some of them are not -- I think we were -- the

11 mayor did establish that the sheriff made a joke about

12 the press coverage he was receiving at his inauguration.

13 You know, I don't -- I personally did not think that

14 that was a joke about domestic violence.

15 Ultimately, I don't think it -- I don't think it

16 matters. I don't think any of these allegations,

17 whether proven or not, could sustain a charge of

18 official misconduct. But I certainly could see if

19 someone thought that the joke was about domestic

20 violence. I don't think it's outside the realm of

21 possibility, but I just didn't think that's what he was

22 saying.

23 COMMISSIONER HAYON: I didn't feel that it was a

24 joke about domestic violence per se. I think it was a

25 humorous reference to his personal situation, the one in

1532
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Closing Arguments and Deliberations
1 which he found himself vis-à-vis the media and legal

2 situations. So perhaps it was inappropriate and, you

3 know, ill-advised, but I don't think he was making fun

4 of domestic violence as an issue.

5 COMMISSIONER HUR: Are there any other facts that

6 were in the joint submission that any commissioner would

7 like to address?

8 COMMISSIONER LIU: Chair Hur?

9 COMMISSIONER HUR: Yes.

10 COMMISSIONER LIU: I would like to address the

11 sheriff's proposed fact No. 18.

12 The sheriff had proposed the factual finding that

13 many individuals have served honorably in San Francisco

14 law enforcement agencies who have been convicted of

15 crimes, citing to Sheriff Michael Hennessey's

16 declaration, and I did want to address it because when I

17 first read Sheriff Michael Hennessey's declaration, it

18 did give me pause for that very reason.

19 But his declaration was so conclusory and was not

20 very fact-specific, and in this case, as many people

21 have said, facts do matter, and it is a very

22 fact-specific inquiry. And then Sheriff Michael

23 Hennessey did not make himself available for

24 cross-examination. After the commissioners had asked

25 repeatedly about whether he would make himself available

1533
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Closing Arguments and Deliberations
1 for cross-examination, he chose not to, and so I was not

2 able to give his statement very much weight.

3 So I did want to address that, that although it did

4 give me pause, I really couldn't give it much weight

5 when he wasn't making himself available to testify.

6 COMMISSIONER HUR: I would agree with that.

7 COMMISSIONER STUDLEY: I think there's no way we

8 can judge this one as a matter of fact, nor is it our

9 obligation to do so. There's been -- if it has any

10 relevance at all, it would be to appropriate response or

11 discipline for a matter of -- an act -- a wrongful

12 behavior or act of official misconduct, if one were

13 found, not to whether somebody did it or didn't.

14 I have found a lot of what we've been offered with

15 regard to assertions that other people have done other

16 things to be a lot like the comment to the state police,

17 "But other people were going faster than I was." That's

18 not the trooper's responsibility. "What did you do?"

19 And "We're the ones in conversation right now."

20 So I don't think that there's a relative standard

21 here, and so I find that's both unhelpful and

22 unprovable.

23 COMMISSIONER HUR: Are there any other facts that

24 the commissioners think we need to discuss?

25 I think we've discussed all of the ones that are

1534
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1 relevant. Like Commissioner Studley just said, I think

2 there are certainly many in here that are not relevant.

3 But anything -- anything else factually that we

4 need to discuss in order to establish?

5 Okay. Next I think we need to address the legal

6 issues, some of which are likely more -- potentially

7 more thorny than the factual issues. It seems to me

8 that the parties have agreed that we need to read the

9 charter provision at issue consistent with the Option 2

10 that we proposed at the last meeting. Option 2 requires

11 that every subclause following the first "including" in

12 the provision has to relate to the duties of his or her

13 office.

14 Is there any disagreement among the commissioners

15 as to whether that should be the framework with which we

16 should -- by which we should inform our discussion?

17 COMMISSIONER RENNE: As I think I've made clear, I

18 do not agree with that interpretation of that statute.

19 I think that there are two distinct provisions that they

20 are defining as "official misconduct."

21 COMMISSIONER HUR: So Commissioner Renne, do you --

22 you do not think that it's a fair reading of the statute

23 to put the colon after the first "including"? Have the

24 first clause begin with "any failure" and the second

25 clause to begin with "conduct that falls below"?

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1 COMMISSIONER RENNE: No. I think --

2 COMMISSIONER HUR: Why not?

3 COMMISSIONER RENNE: I think the "or" is

4 disjunctive and the -- everything that goes before the

5 "or" relates to wrongful behavior relating to the public

6 office; that the second clause provides for misconduct

7 being any conduct that falls below the standard of

8 decency, good faith and right action impliedly required

9 of all public officials.

10 And I gave the example that the -- you take the

11 Penn State matter with Joe Paterno. One could say he

12 didn't violate any law, but he had a moral obligation,

13 the standard of the position he was in, to report what

14 he had found out, not to let it just go or say "Don't

15 come back."

16 And that's -- and my belief is that's what the

17 framers were intending, is saying that we've got some

18 standard. Now, the question has been raised, well,

19 that's so vague and ambiguous, and I guess my answer to

20 that is and the cases said that it may be ambiguous, but

21 if the act that you are claiming violated that section

22 and if any reasonable public official would know that

23 act violates it, the vagueness is not really a defense.

24 COMMISSIONER HUR: I mean, it's the mayor's

25 position that your reading is unconstitutional.

1536
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1 COMMISSIONER RENNE: I understand that.

2 COMMISSIONER LIU: But Commissioner Renne, then

3 if -- if you're looking at Option 1 as the

4 interpretation, which I do have to say that was my --

5 that has been my initial take on it, that I think that

6 is likely what the framers intended, would we be reading

7 into it that the phrase "required of all public

8 officers" -- the phrase "required of all public

9 officers" to relate to the position in question? And

10 perhaps that's why it's not vague as applied.

11 COMMISSIONER RENNE: But the statute -- I -- I

12 think it could be well read that you look at the

13 particular position, public official, and say, "Did he

14 or she have -- conduct themselves in a manner which

15 violates a sense of decency, good faith and right

16 action?" Or say "Regardless of what the position was,

17 is the action or the conduct -- does it fall under some

18 general belief that it would be -- it would be

19 considered to violate the standards of decency and good

20 faith and right action?"

21 So I mean, I don't think in this -- frankly, I

22 don't think in this case it makes a lot of difference

23 whether you apply it to the office or whether you apply

24 it generally, saying that no public official should

25 conduct themselves in the manner that occurred on

1537
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1 December 31st.

2 COMMISSIONER STUDLEY: I have for a long time had

3 the thought that it was a very tough decision which of

4 these two it was.

5 And when I look at Option 1 -- the question came up

6 this morning about whether if it were intended to apply

7 to each position of all or each public offices and why

8 "standard" was singular instead of plural -- I think you

9 could get to the same place. So I'm agreeing with

10 Commissioner Renne here. If you're trying to make that

11 one make sense, the standard of decency, good faith and

12 right action required of all public officers could

13 include to carry out a number of things and carry out

14 the duties of your particular office.

15 So I think that it's torturing it to try and figure

16 out the "all" or the "each" because there's another

17 logical both substantive and grammatical way to get

18 there, because the standard could be do all of these

19 things that are common and then do the things that your

20 office calls upon you to do when you're an ethics

21 commissioner or a sheriff or a school superintendent or

22 a supervisor.

23 That doesn't help you with the whether we're all on

24 the Option 2 question.

25 COMMISSIONER HUR: Yeah. But I mean, I had

1538
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1 actually, Commissioner Studley, that similar thought in

2 mind as well. I mean, the only way to read -- to -- I

3 think one plausible way to read the section like

4 Commissioner Renne does, but to find it constitutional,

5 would have to, almost by definition, require some

6 relationship to the duties of office, so -- and I think

7 that's Commissioner Liu's point as well.

8 And so in light of the fact that I think both

9 readings are -- based on the language of the statute,

10 both readings are plausible, I think we should accept

11 the reading that directly requires this relationship

12 through the meaning of the word, since we'd have to

13 imply it anyway in order to interpret it in a

14 constitutional manner, which is why I think we should

15 agree with the parties and apply Option 2.

16 And I understand that there will likely be

17 significant debate as to what the nexus has to be, but I

18 do think that is the most correct reading, perhaps, in

19 this case.

20 Commissioner Hayon, do you have a view as to which

21 reading is appropriate?

22 COMMISSIONER HAYON: Well, I kind of agreed with

23 Commissioner Renne, but again, I mean, this falls beyond

24 my area of expertise.

25 And I guess my question in terms of pertaining to

1539
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Closing Arguments and Deliberations
1 or as it relates to the duties of office -- my question

2 would be then since the sheriff -- in this case, while

3 this took place in that twilight zone, if you will,

4 between when he actually -- you know, when he was

5 elected and between the time he actually took office,

6 nonetheless, as sheriff-elect, his duties as sheriff

7 relate to areas of domestic violence and, you know,

8 really quite a swath that San Francisco has cut

9 nationally in terms of what we do.

10 So it seems to me that if we read it that way, to

11 me, that still means that what he did relates to the

12 duties of office. Now, I don't know if that falls under

13 the legal discussion that we're having, but that's how I

14 would interpret it.

15 COMMISSIONER HUR: Okay.

16 COMMISSIONER RENNE: Well, let me ask you this

17 question: At the time of the incident, he was a member

18 of the Board of Supervisors, which made him a public

19 official, which meant he was subject to the language of

20 this section.

21 Now, if the office -- if he had -- hypothetically,

22 if he had run for reelection and been reelected to the

23 board, do you read that to say that, well, because this

24 doesn't relate to the activities of the board -- in

25 other words, it's one thing to talk about a sheriff, and

1540
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1 you say because of all of the supervision of domestic

2 violence and law-breakers.

3 Are you saying that an act of domestic violence by

4 a member of the Board of Supervisors could not be

5 official misconduct?

6 COMMISSIONER HUR: You're asking me?

7 COMMISSIONER RENNE: Yes.

8 COMMISSIONER HUR: Well, so I think there are two

9 parts to your question. One part is the timing. Are

10 you asking about the timing?

11 COMMISSIONER RENNE: No.

12 COMMISSIONER HUR: The fact that he's pre-swearing

13 in?

14 COMMISSIONER RENNE: No, I'm asking about if you

15 interpret it that it has to relate to the office. If he

16 had been reelected to the Board of Supervisors, are you

17 saying that he would not be subject to a claim of

18 official misconduct because of domestic violence?

19 Because you wouldn't have the same arguments that you

20 would have about the duties of sheriff.

21 But as I read the statute, it certainly would be an

22 indication of conduct that did not meet the standard of

23 decency, good faith and right conduct.

24 COMMISSIONER HUR: My answer to your question is

25 that no, I do not think it would be official misconduct.

1541
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Closing Arguments and Deliberations
1 And the reason is because I think the precedent that we

2 have that actually talks about, albeit in dicta, what

3 "relation to the duties of office" means is pretty clear

4 that there has to be a direct relationship of the

5 alleged wrongdoing to the office held.

6 COMMISSIONER RENNE: But that dicta was before this

7 ordinance was ever passed.

8 COMMISSIONER HUR: Well, it was -- the ordinance

9 had been passed, and the language that is now in the

10 ordinance, this "in relation to the duties" language, is

11 the same precise language that Mazzola addressed.

12 COMMISSIONER RENNE: Yes, the first part. But the

13 second lang- -- the second section, the "or" clause, was

14 not before the Mazzola court, and the dicta has no

15 relationship to what was the meaning of the "conduct

16 which falls below the standard of decency, good faith

17 and right action."

18 COMMISSIONER HUR: Certainly if we were to read --

19 if we were to follow Option 1, which is what you're

20 advocating, then I would agree with you that yes, then

21 there would not be a nexus requirement to the relation

22 of the duties, and in that case, in my common-sense view

23 is the domestic violence -- does domestic violence fall

24 below my standard of decency that I expect of public

25 officials?

1542
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Closing Arguments and Deliberations
1 Yes. But I don't think that's what we are being

2 asked to apply. I think if we don't find a nexus to the

3 relation of the duties, then we are opening this

4 provision up to abuse and manipulation down the road

5 by -- in a way that we're not really going to like.

6 I mean, I have grave concerns about what the next

7 case looks like unless we interpret this in a way that I

8 think the voters intended and also that is narrow and

9 understandable for elected officials.

10 COMMISSIONER HAYON: If I may just add one thing, I

11 think one issue that has been brought up consistently,

12 particularly in public -- in public testimony is the

13 issue of fairness. And I think we all agree that life

14 is not fair, and certainly government and politics least

15 of all. But I mean, I think it is an issue that we do

16 have to at least think about and include in our

17 deliberations.

18 I mean, there's certainly all kinds of misconduct,

19 and some of it has been referred to specifically, on the

20 part of other elected officials in San Francisco as well

21 as other places. So I mean, we see plenty of official

22 misconduct across the board in this country. Not

23 everybody gets hauled up on charges. And I think an

24 issue of fairness is of course who's going to bring

25 charges. So charges were brought in this case, which is

1543
Ethics Commission Meeting - Sheriff Ross Mirkarimi
Closing Argu ments and Deliberations
1 why we are looking at it, and so in terms of some

2 element of fairness, I do think that this particular

3 charge as it relates to this particular office is very

4 relevant.

5 It isn't just some elected official acting out, you

6 know, taking his clothes off on a tweet or what have

7 you, but something that really speaks to something of

8 which San Francisco is a leader. And the sheriff is a

9 leader in law enforcement and in the area of domestic

10 violence. And so I think that there is a direct

11 correlation between these charges and what the sheriff

12 of the City and County of San Francisco does, and that

13 is important to me.

14 COMMISSIONER HUR: Mr. Emblidge.

15 MR. EMBLIDGE: If I may make one suggestion just

16 for you to consider, if there's a disagreement on the

17 commission about whether Option 1 or Option 2 is the

18 appropriate interpretation, you might consider reaching

19 a conclusion under each option. And I say that because,

20 obviously, your recommendations are going to go to the

21 Board of Supervisors.

22 If you were to make a recommendation under Option

23 1, but the board believed that Option 2 was the better

24 interpretation of the charter, the board might

25 justifiably say, "Well, what would the Ethics Commission

1544
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Closing Arguments and Deliberations
1 have done under Option 2?"

2 I don't want to make your job any more complicated

3 than it is, but I think you might want to consider

4 making findings under each option.

5 COMMISSIONER HUR: Views of my fellow

6 commissioners?

7 I think -- ideally, I would like to make a

8 recommendation to the board that is a single

9 recommendation. I think we're making the board's job

10 harder if we don't come up with one recommendation. And

11 although I think it would be easier for us to sort of

12 have a number of permutations of our recommendations and

13 then send them all up -- and we may need to do that if

14 we can't reach a majority on some of these things. But

15 my preference would be if we could make -- figure out

16 what we think the right option is and to make a

17 recommendation.

18 COMMISSIONER STUDLEY: Well, I have a--

19 Go ahead, Scott.

20 MR. EMBLIDGE: Well, and I wasn't presupposing that

21 your recommendation would be different. It may very

22 well be -- and I don't want to prejudge what I'm hearing

23 here, but it may very well be that the recommendation

24 you make, you might make the same recommendation under

25 either option.

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1 COMMISSIONER HUR: I see. I see.

2 COMMISSIONER STUDLEY: And I think as a matter of

3 process, we might see where we are aligned and where we

4 have differences and whether they're differences under

5 the same option, different views, or different views

6 depending on which option we perceive.

7 So we might get closer by doing it, and we might --

8 yet I think you're right that we would still have a

9 preferred pathway or a recommended analysis. It may be

10 that there's a footnote that says "Even if you go this

11 way" or "If you were to go that way, here's how we

12 thought about it," because that could become part of the

13 later interpretation and could help people who -- if the

14 supervisors go back to try and parse it themselves.

15 So it may get to where you --

16 COMMISSIONER HUR: I think that's a good point.

17 COMMISSIONER STUDLEY: -- as close as we can to

18 what you want, but may be a way to find what's common

19 and what's different.

20 COMMISSIONER RENNE: As I have said, I'm not sure

21 the result in this case is any different. What I'm

22 concerned about that this commission sends a message to

23 the elected officials is "You can do anything you want

24 if it isn't in relation to your duties," and I think

25 there's a provision that puts a higher standard on our

1546
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Closing Arguments and Deliberations
1 elected officials than just how do they conduct

2 themselves vis-à-vis their official duties.

3 COMMISSIONER HUR: I think that's a fair point.

4 The countervailing view there is this: I have not

5 seen any evidence suggesting to me that the mayor had

6 any improper motive in bringing these charges. This, to

7 me, is a statute that is subject to a number of

8 interpretations. I think the mayor, in light of the

9 seriousness of the allegations, had every right to file

10 the charges.

11 Now, we, I think, need to interpret it. And I

12 think we're going to do future -- this mayor, future

13 mayors, and elected officials a service if we interpret

14 this in a way that is clear. And I have a lot of

15 concern about where you draw the line if you don't

16 relate it to the duties.

17 The other thing I want to say about this is this is

18 not the only provision in law to protect the public from

19 elected officials doing wrong, doing wrong things.

20 There's a criminal process, there's a recall process,

21 there is a process within one's own department whereby

22 an official can be reprimanded. So I think the voters

23 intended official misconduct to be something narrow,

24 because it provides the mayor with a very strong tool

25 that really could disrupt an elected official.

1547
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1 And I don't -- like I said, I do not think the

2 mayor engaged in anything improper here or that there's

3 any improper political motive, but you could certainly

4 see that possibility, especially if we interpret this in

5 a way that's so broad as to encompass any number of --

6 any amount of personal misconduct that doesn't relate to

7 one's job duties.

8 COMMISSIONER LIU: So maybe we should take the

9 more -- Option No. 2, the tougher, higher standard, and

10 then see where we are with that and then see if we need
< br /> 11 to discuss Option No. 1 some more.

12 COMMISSIONER HUR: I think that's a good idea.

13 So under Option No. 2, I think that -- I'm

14 guessing, based on what I'm hearing, that the debate is

15 going to be about whether the relationship to the duties

16 has to be a direct relationship, meaning something

17 that's performed on the job or purporting to be on the

18 job, essentially under color of law, or whether it must

19 instead just merely affect the elected official's

20 abilities to perform the duties.

21 I probably shouldn't have used the word "merely."

22 I don't mean to suggest that it's a less -- a lesser

23 option by any means.

24 But is that pretty much what we're -- what the

25 parameters are if we're considering what "relation to

1548
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Closing Arguments and Deliberations
1 the duties" means in Option 2?

2 COMMISSIONER STUDLEY: I think it's a good start.

3 And let me start with something that seems to me

4 pretty clear to help us go down this road. I don't

5 think that the duties of office can be limited to the

6 handful of specific affirmative tasks enumerated in the

7 charter. I think that's just a poor reading of "the

8 duties of office."

9 COMMISSIONER HUR: Completely agree.

10 COMMISSIONER STUDLEY: There are a whole lot of

11 affirmative and negative instructions or explanations of

12 "duty."

13 What the charter, as I understand it, attempted to

14 do was enumerate some of the specific responsibilities

15 at the charter level for those jobs, like operate the

16 jail, so that you could tell the job of supervisor from

17 the job of mayor, who has another set of things

18 enumerated in the charter.

19 But nowhere does it say "Do not lie and cheat and

20 steal," because I don't think we expect the charter to

21 do that. That's either implied or in the SIA. But it

22 is a part of the obligation of office, and I think the

23 duty and obligation of the office are related.

24 So at least the argument offered to us, that the

25 limit of what the sheriff has to do is in that handful

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1 of specified tasks and nothing else identified by the

2 mayor, assigned by the Board of Supervisors, selected by

3 the office-holder him- or herself as a good way to

4 advance the purposes of that office are not part of the

5 job just seems to me thin.

6 And if anybody challenged that, I would say, "If

7 you drove your official car to it, it's not just the

8 limit of those five items." The sheriff's job is much,

9 much broader than what the charter says specifically for

10 all time that person must do.

11 So not that it's easy after that, but I just want

12 to, for my part, scoop away that argument constraining

13 us, and then we can figure out what the duties of the

14 officer of sheriff are, if people agree with me.

15 COMMISSIONER HUR: I agree with that.

16 Okay. So given that we've -- I think we agree that

17 the duties are broader than what is described in the

18 charter, what then are we to make of the relationship

19 test?

20 You know, I am torn in some ways, because, you

21 know, I am troubled that there are -- there is case law

22 that addresses what is expected of, you know, an

23 officer. I think those cases could have some relevance

24 to what we are discussing.

25 Now, of course, there are no cases that connect

1550
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1 whether that standard should be imported into an

2 official misconduct analysis, and that's sort of where I

3 am a bit stuck and why I come out in my view that the

4 relationship has to be direct.

5 The -- but I again welcome the views of my fellow

6 commissioners as to whether this relationship does have

7 to be done while performing your duties or -- purporting

8 to perform your duties or whether there can be a

9 different type of relationship that could meet this

10 official misconduct standard.

11 COMMISSIONER LIU: Well, I don't think it has to be

12 while carrying out or while -- I don't think the conduct

13 or the misconduct, the wrongful behavior itself, is

14 constrained to being performed while carrying out your

15 duties. I don't think -- I don't read the provision to

16 be that narrow.

17 And I agree with Commissioner Studley that the

18 duties are not just simply the ones enumerated in the

19 charter. I think that there's been a lot of testimony

20 and evidence that the duties of the sheriff are much

21 broader than that and, as Commissioner Hayon very aptly

22 put it, that the sheriff should be overseeing a lot of

23 anti-domestic programs and overseeing that relationship,

24 so I agree that there would be a correlation between

25 that function of the sheriff and being convicted of a

1551
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1 domestic-violence crime.

2 COMMISSIONER HUR: I guess the problem I have with

3 tying the relationship to the effect or the -- you know,

4 the ability of the sheriff to perform the job going

5 forward is that it doesn't seem to work from a timing

6 perspective. I mean, we're talking about -- this -- to

7 me, this provision is talking about wrongful behavior

8 that at the time you're doing it is in relation to your

9 duties.

10 And I think a lot of the testimony that we heard is

11 about whether or not the sheriff is going to be

12 effective down the road. He very well may not be

13 effective as a sheriff. But I don't think that's sort

14 of our -- I don't think that's in our purview.

15 And if we're going to say that -- essentially, what

16 his expert said, what the mayor's expert said, was that

17 any misconduct by a sheriff is official misconduct, and

18 that -- and that, again, is something that troubles me,

19 because it seems the parties concede that there is a

20 difference between persona l misconduct and official

21 misconduct, and the evidence we heard does not give me

22 any comfort that we can pick that line.

23 COMMISSIONER LIU: Go ahead.

24 COMMISSIONER STUDLEY: I'm just wondering how

25 you're getting to that time issue, because within Option

1552
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1 2, "any wrongful behavior . . . in relation to the

2 duties of . . . office, including conduct that falls

3 below the standard of decency . . . and right action . .

4 . required," and the standard required could well have a

5 going-forward element to it.

6 The standard that we expect is so that you can do

7 your job going forward. It's not either historic or at

8 one moment in time. So you may be looking at something

9 that I'm just not seeing in the second line or in the

10 other case law, which I know you know better than I do.

11 COMMISSIONER HUR: Well, I mean, it's a good point.

12 I mean, I do think a standard is something that you

13 should be able to look at now and know is fixed. And if

14 the standard is we expect you to act in a way that, in

15 the future, you will still be effective even if you do

16 the act --

17 COMMISSIONER STUDLEY: Yeah. Let me try this.

18 COMMISSIONER HUR: -- it bothers me.

19 COMMISSIONER STUDLEY: Making up hypotheticals on

20 the fly is always risky. But if I held public office

21 and I admitted to or were convicted of perjury in

22 another jurisdiction in a matter not related to my city

23 responsibilities -- I lie in my family's estate

24 matter -- that is wrongful behavior.

25 And say I'm the district attorney. Is that -- if

1553
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Closing Arguments and Deliberations
1 you think that the standard that I should be held to as

2 a law enforcement officer is related to not perjuring

3 myself, then would it be in relation to the duties even

4 though it is not -- even though both the time and the

5 substance are distant from my job here in San Francisco?

6 COMMISSIONER HUR: I would say that is not in

7 relation to your duties. And again, the reason being

8 that it's -- I do think there has to be a greater

9 connection. I mean, you know, there's another line

10 between perjury and lying.

11 If you lie to your husband, if you lie to your

12 friend, is that conduct that falls below the standard of

13 decency that I --

14 COMMISSIONER STUDLEY: But if I per- --

15 COMMISSIONER HUR: -- would expect of a public

16 official? Maybe.

17 COMMISSIONER STUDLEY: But if I perjure myself

18 while I'm in a legal proceeding and my job is legal,

19 does that go to the standard of decency?

20 COMMISSIONER HUR: Well, again, I've always read

21 this to be a standard, which is why I think it has to

22 tie to the relationship of the duties. To read it to

23 mean multiple standards, given -- and to change "all" to

24 "each" to me is difficult in light of the words --

25 COMMISSIONER STUDLEY: Well, in Option 2, we may

1554
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1 not need to do that, but -- so even if we have a single

2 standard, and I'm a public official and I -- my perjury

3 is in a public proceeding, do you think the voters when

4 they passed this wanted me to come back, having been

5 convicted of perjury, and continue to hold my office on

6 the same terms as before? Or would they believe that

7 there had been official misconduct?

8 Or no, because that's the term we're trying to --

9 would they believe that I had committed any wrongful

10 behavior in relation to my duties?

11 COMMISSIONER HUR: So I don't think that -- in

12 other words, that -- your scenario, I don't think it

13 matters whether you're the district attorney or a Board

14 of Supervisors or any other public official.

15 COMMISSIONER STUDLEY: Okay.

16 COMMISSIONER HUR: I mean, it's -- but I mean, I

17 guess you're right. I mean, for me to be consistent in

18 my view, I would have to find that that is not official

19 misconduct in the performance of your duties. And

20 what --

21 COMMISSIONER STUDLEY: Any of your duties.

22 COMMISSIONER HUR: Right. And so -- but I can also

23 make up a hypothetical that, you know, pushes the other

24 way. Is private -- if you're in a bar and you're

25 intoxicated in public, is that official misconduct?

1555
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1 Certainly if you're in your office and you're

2 intoxicated repeatedly, I think that, to me, is clear

3 that that could constitute official misconduct. But is

4 it below the standard of decency and good faith and

5 right action that one could deem to be publicly

6 intoxicated in a bar? Is that what we expect of our law

7 enforcement officials?

8 COMMISSIONER STUDLEY: I don't want to be flip and

9 say "not in San Francisco."

10 It doesn't -- no, but I'm trying to figure out why.

11 So what we're trying to do is get closer and closer --

12 COMMISSIONER HUR: Right.

13 COMMISSIONER STUDLEY: -- to figure out what the

14 line is between the things that we're describing.

15 Justice Renne is pondering.

16 COMMISSIONER LIU: Chair Hur? So I think that I

17 see -- I definitely see what you mean, the

18 interpretation that you're giving it in relation to the

19 duties of the office.

20 I read the second provision, "conduct that falls

21 below the standard of decency," to relate to the office,

22 to relate to the office of sheriff, but not necessarily

23 to mean that it has to happen while carrying out the

24 duties of sheriff. I think there still has to be a

25 nexus and a relationship to the office. I don't read it

1556
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1 as restricting it to while carrying out the duties of

2 the office. So I think maybe that's wher e --

3 COMMISSIONER HUR: I think you're right.

4 COMMISSIONER LIU: -- we differ on the

5 interpretation.

6 COMMISSIONER HUR: I think you're right.

7 And my interpretation is a little bit broader than

8 that. I would say it's -- "in relation to the duties"

9 means while you're performing your duties or purporting

10 to perform your duties, sort of acting under color of

11 law. If, for example, the sheriff had in fact used his

12 authority as sheriff to dissuade a witness, even though

13 he wasn't the sheriff at the time and wasn't in office

14 or at the office when he was doing it, I still think

15 that would sustain a charge.

16 What I don't -- what I am worried about is a

17 relationship that is so general that what we're talking

18 about is the effect it has on his ability to do the job

19 going forward. I do not think that's what the voters

20 had in mind when they wanted to remove someone for

21 official misconduct.

22 COMMISSIONER LIU: And I agree with that, so I'll

23 clarify.

24 That is not what I intended. I wasn't saying that

25 it's -- we have to find whether or not he would be

1557
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1 effective or ineffective as a sheriff going forward,

2 just that there would be -- for instance, here, applying

3 the facts here, whether being convicted of the crime of

4 false imprisonment, being convicted of a

5 domestic-violence crime falls below the standard of

6 decency that we expect of a sheriff, the office of

7 sheriff, not that -- necessarily that he would be

8 ineffective going forward in carrying out the duties of

9 a sheriff, but just simply taking this prong that, as

10 Commissioner Renne pointed out, was not dealt with in

11 the Mazzola case, does that prong -- you know, would

12 that -- would that meet the facts here to sustain the

13 charge?

14 COMMISSIONER HUR: Mm-hmm. And while I can agree

15 with the point about Mazzola if we're talking about

16 Option 1, and in light of the dearth of case law that we

17 have at our disposal, I think that if we're following

18 Option 2, Mazzola pretty clearly talks about this

19 definition of unlawful behavior by a public officer in

20 relation to the duties of his office. It's the same

21 language.

22 And Mazzola then goes on to say that the acts --

23 they must be committed while in office, there must -- it

24 requires -- official misconduct requires a direct

25 relationship of the alleged wrongdoing to the office

1558
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1 held, and explains why Mazzola's was not because he

2 wasn't performing his duties. So that's I guess that's

3 where I get hung up is how to reconcile those.

4 COMMISSIONER LIU: Right. And I think I'm just

5 reading Mazzola as pertaining to the first prong, and

6 that makes sense to me that that's a more narrow and

7 restrictive view, but not addressing the second prong,

8 which I think Commissioner Renne pointed out was the gap

9 that the voters decided to fill because it was not

10 addressed prior to --

11 COMMISSIONER HUR: But if we're going to say the

12 second prong has to relate back to this

13 in-relation-to-duties portion, then I don't see how the

14 second prong, if it has to relate to the duties, should

15 be interpreted any differently than in Mazzola. I mean,

16 we're still talking about the same -- the same language.

17 But maybe I'm missing what you're --

18 COMMISSIONER RENNE: Why have the second sentence

19 if it doesn't mean something other than what Mazzola was

20 talking about?

21 COMMISSIONER HUR: What I'm saying is that I think

22 Mazzola is explaining what "in relation to the duties"

23 means.

24 Now, "conduct that falls below the standard of

25 decency" could be broader than, for example, a refusal

1559
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Closing Arguments and Deliberations
1 to perform a duty enjoined by law, but they still both

2 have to relate to the duties. So I'm only relying on

3 Mazzola to the extent that it helps me understand what

4 kind of nexus is required between the conduct and the

5 relationship to the duties of office. I agree with both

6 of you that 2 is broader, that the decency standard is

7 broader than, for example, the failure-to-act standard.

8 Can we -- again, I'm just trying to figure out ways

9 to -- for us to move the ball forward. Are we in

10 agreement that there is this distinction between

11 personal misconduct and official misconduct?

12 COMMISSIONER LIU: I'm sorry. How do you mean?

13 COMMISSIONER HUR: Is there a difference? Can

14 you -- can a sheriff engage in misconduct that is not

15 official? Wrongful behavior that is not official

16 misconduct?

17 COMMISSIONER STUDLEY: Yes.

18 COMMISSIONER LIU: Yes.

19 COMMISSIONER HUR: What would be an example of such

20 a thing?

21 COMMISSIONER STUDLEY: I promise my husband I will

22 be home this time by 7:00 o'clock. I am not. That is

23 personal misconduct. I have broken a promise to a

24 family member. I don't think it's actionable at work.

25 Just to get the ball started.

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1 COMMISSIONER LIU: You mean conduct that is

2 unlawful that would not constitute official misconduct?

3 Is that what you mean?

4 COMMISSIONER HUR: Well, what is conduct that would

5 fall below the standard of decency that would not relate

6 to the duties of sheriff or what is -- and then perhaps

7 Commissioner Studley's example in a good one.

8 COMMISSIONER STUDLEY: Breaking a promise to a

9 friend or family member. It's not unlawful, so if you

10 want unlawful ones, we have to search further.

11 COMMISSIONER LIU: Perhaps just conduct that does

12 not end up being unlawful if there's no criminal

13 conviction at issue, but it's something that was

14 tasteless.

15 COMMISSIONER HUR: Mm-hmm. So --

16 COMMISSIONER STUDLEY: There are all sorts of

17 speech acts that might not be appropriate or tasteful or

18 respectful that are not -- that are wrongful behavior

19 but not official misconduct.

20 COMMISSIONER HUR: So then what is the principle

21 you use to draw the line?

22 COMMISSIONER LIU: Well, to be honest, I don't -- I

23 don't think we need to set a bright-line rule,

24 necessarily, unless you're uncomfortable with the facts

25 as they are and you need to set a bright-line rule. I

1561
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1 just think we need to figure out whether the facts here

2 rise to that level. I'm not sure we need to set just a

3 bright-line rule for any time this comes up.

4 COMMISSIONER HUR: I would agree with that. I just

5 ask because I'm trying to get comfortable with this idea

6 that there -- what I like about bright lines is that

7 it's easy for the next people -- the next person to

8 follow, and I think in a vacuum, bright lines are better

9 than not-bright lines.

10 COMMISSIONER STUDLEY: It's hard to find a

11 bright --

12 Go ahead.

13 COMMISSIONER HUR: But I understand that that's

14 not -- our task is not to sort of create a -- you're

15 right. We could -- we probably could decide without

16 establishing a bright-line rule, but I'm just trying to

17 get comfortable with not having bright-line rule and

18 where you would -- how you would decide similar issues

19 if we went with a more vague rule.

20 COMMISSIONER STUDLEY: I was just going to say it's

21 hard to draw a line with only one dot. And part of our

22 problem is we have just this one matter, and we -- we

23 don't know whether we're worried about a slippery slope

24 or a floodgate problem if we don't provide enough

25 guidance or if we do something that's hard for

1562
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Closing Arguments and Deliberations
1 subsequent -- this or subsequent mayors to interpret.

2 But it's asking a lot to try and intuit a line and

3 a formula for something that happens so rarely. So we

4 shouldn't do it willy-nilly. We should do it in a -- as

5 coherently as we know how. But I'm with Commissioner

6 Liu that we may be overburdening an already complex

7 process by trying to imagine all the other possibilities

8 when there's no population to reflect on.

9 COMMISSIONER HAYON: Well, I have a question. The

10 last time this even came up, I guess, was with

11 Supervisor Jew, although it didn't actually come to, you

12 know, a hearing, and it was an actual criminal

13 misconduct. And then prior to that, Mazzola was the

14 only previous case; is that correct?

15 COMMISSIONER HUR: I think there was --

16 COMMISSIONER HAYON: That we know of?

17 COMMISSIONER HUR: Mr. Waggoner said there was one

18 in 1932.

19 COMMISSIONER HAYON: Okay. Well, Mazzola's been

20 since then.

21 COMMISSIONER HUR: Right.

22 COMMISSIONER HAYON: So I guess what I was trying

23 to say earlier in terms of the fairness issue, I mean,

24 so you have this description or this definition of

25 "official misconduct" on the books or in the charter,

1563
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Closing Arguments and Deliberations
1 but the fact is it isn't used very often. It's used

2 subjectively or even arbitrarily, dare I say?

3 So I mean, it's not a matter of law that because

4 someone in elective office misbehaves in some way that

5 they will automatically be charged with official

6 misconduct and then go through some kind of a process,

7 be it something before the ethics committee or even

8 criminal. And if it's criminal, then that's a whole

9 different matter.

10 So I guess your concern is you don't want this to

11 be -- the next time this comes up, you want it to be

12 clearer and not as murky as what we've had to deal with.

13 COMMISSIONER HUR: I think it's --

14 COMMISSIONER HAYON: But there's a lot of personal

15 misconduct that goes on that falls below the standard of

16 decency. Some of it has been already referred to in

17 this room. But, you know, no one did anything about it

18 or nobody said anything or brought it up.

19 So I don't know what bearing that has, exactly, on

20 how we should decide this definition, but it seems to me

21 that it still needs to be as broad as possible because

22 that's the only way that it can -- it's going to be

23 used, if -- if I understand that.

24 COMMISSIONER HUR: But if it's as broad as

25 possible, then you -- I think you put the mayor in a

1564
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1 tough spot if it's too broad, because then every time

2 the mayor uses it, he's going to be accused of using it

3 for political purposes. Because it's so vague and

4 broad, it's going to be -- it's always to be going to be

5 subject to that challenge.

6 And he's always -- he may always feel like he has

7 to bring it up because he wants -- he doesn't want to be

8 looked at as, you know, letting official misconduct go.

9 Or, on the flip side, that the defendant is always going

10 to say, "Well, look at all these people who do all sorts

11 of bad things. Why did you choose my bad act?"

12 COMMISSIONER HAYON: Right. But obviously, it

13 doesn't come up very often.

14 COMMISSIONER HUR: But it may come up a lot more if

15 we don't create a bright line or interpret it in a way

16 that can be easily understood. And, you know, I agree,

17 we don't have to come up with a bright-line rule, but I

18 think we owe it to the public to really try our best to

19 come up with an interpretation that is clear and can be

20 followed, even if it's not perfectly bright-line.

21 COMMISSIONER HAYON: Just to say parenthetically --

22 and I don't know if this is appropriate or not -- but

23 often, when there is a case of misconduct, and usually

24 it's personal misconduct in the political arena across

25 the country, usually those individuals on their own

1565
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1 resign without having to force any kind of public, you

2 know, process such as we've had to go through.

3 So because there -- we know of many, many, very,

4 very well-known cases of misconduct, but those

5 individuals at least resigned in a timely manner.

6 COMMISSIONER HUR: That is true.

7 COMMISSIONER STUDLEY: Or took more affirmative

8 steps to mitigate or demonstrate that they could carry

9 out the responsibilities or cooperate in other ways

10 reflecting the seriousness of the problem.

11 COMMISSIONER LIU: Well, Chair Hur, I'm not

12 necessarily advocating this as the rule to adopt your

13 quest for a bright-line rule, but one fact that was

14 compelling to me that I think differentiates from the

15 examples that the public gave of why other types of

16 personal misconduct didn't amount to charges and rise to

17 this level is the fact that this resulted in a criminal

18 conviction.

19 And when we took in the evidence to look at the

20 facts, there were a lot of disturbing facts that went

21 along with that criminal conviction, and so that's what

22 I find compelling about this that perhaps differentiates

23 when, you know, members of the public talked about

24 officials having affairs or so on and so forth. That's

25 the distinction that I see.

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1 COMMISSIONER HUR: So that any -- any criminal

2 conviction would inherently be relating to the duties of

3 the office and fall below the standard of decency?

4 COMMISSIONER LIU: Well, I think there would still

5 have to be an inquiry about what office that was and

6 what the duties were and what relationship that office

7 might have to the crime, but I'm not saying it's

8 automatic, necessarily. I just think it's something --

9 it's a factor to definitely be considered.

10 COMMISSIONER HUR: I think that's interesting.

11 What do people think about taking a short break and

12 then maybe reconvening and sharing our views on the

13 ultimate issue?

14 Okay. Let's take ten minutes.

15 (Recess taken from 5:10 p.m. to 5:20 p.m.)

16 COMMISSIONER HUR: Okay. We are back in session.

17 Before the break, we had been discussing our views

18 on the legal application of the facts in this case.

19 We've had, I think, a robust discussion.

20 I think at this point it may be useful to take a

21 straw poll of how various commissioners would apply the

22 law to the facts in this case assuming Option 2, and

23 then perhaps we can address Option 1 after that.

24 Yes. So just to be clear, Option 2 --

25 You know, actually, do the parties have the --

1567
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1 Or Ms. Ng, you have Option 1 and Option 2 there,

2 don't you? Can you put it on the overhead?

3 MR. EMBLIDGE: Two?

4 COMMISSIONER HUR: Option 2, please.

5 Thank you, Mr. Emblidge. Maybe we can make that a

6 little bigger.

7 COMMISSIONER STUDLEY: He's trying.

8 COMMISSIONER HUR: Mr. Keith, didn't you

9 effectively use this earlier today? Can you help out?

10 MR. KEITH: All right. Unless somebody stands here

11 and keeps doing that --

12 COMMISSIONER HUR: Okay. Well, I'm not sure

13 anybody can read that, but the --

14 COMMISSIONER RENNE: Maybe somebody could read it

15 out loud so that they understand what the language is.

16 COMMISSIONER HUR: Sure. The way we -- I read

17 Option 2 is "OFFICIAL MISCONDUCT. Official misconduct

18 means any wrongful behavior by a public officer in

19 relation to the duties of his or her office, willful in

20 its character, including: (1) any failure, refusal or

21 neglect of an officer to perform any duty enjoined on

22 him or her by law, or (2) conduct that falls below the

23 standard of decency, good faith and right action

24 impliedly required of all public officers and including

25 any violation of a specific conflict of interest or

1568
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1 governmental ethics law."

2 COMMISSIONER RENNE: That's Option 2.

3 COMMISSIONER HUR: That's Option 2. That's Option

4 2.

5 So if my fellow commissioners will indulge me, I'll

6 sort of summarize my view. I think you understand it,

7 but perhaps I can give one last shot at explaining it.

8 I think this charter provision was meant to be

9 narrow. I think it provides the mayor with an

10 extraordinary tool that can be very useful and very

11 consistent with how the public intended it to be used.

12 Given the -- but given the force of the tool, I think

13 the people wanted it to be interpreted narrowly, and I

14 think to me, the -- the best way to interpret this

15 provision is to have as clear a line as we can as to

16 what it means to relate to the duties of his or her

17 office.

18 And while I appreciate the suggestions that perhaps

19 this could be limited to unlawful conduct and thereby

20 create some kind of line or that we could import rules

21 that are used in the employment context, I think the

22 only principled way to limit this provision is to have a

23 direct nexus between the wrongful behavior and the

24 relationship to the duties. I don't think the provision

25 can be fairly limited to unlawful conduct, given the

1569
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1 purposeful word that was used, "wrongful" rather than

2 "unlawful," and I don't think that it can be read to

3 import multiple standards when it refers to only one.

4 The misconduct in this action -- in this particular

5 case, I think was egregious. For all those

6 domestic-violence advocates who came here and spoke

7 today, I appreciate your attendance, and I don't want

8 you to interpret what I'm saying to suggest that

9 domestic violence is a private matter or not a very

10 serious matter. But "private" and "public" does not

11 mean the same as "personal" and does not mean the same

12 thing as "official." And I firmly believe that the

13 people intended official misconduct to be something

14 limited because of the concern that it could be used in

15 the political process.

16 I also understand that the evidence likely showed

17 that the sheriff is going to have a hard time performing

18 his duties going forward. And yes, a sheriff who

19 commits an act of violence, I think, in my mind does

20 fall below the standard of decency that I would expect

21 of a public official. But again, I don't think it's our

22 job to determine what his level of efficacy is going to

23 be going forward, and I would implore my fellow

24 commissioners to take a narrow and principled view of

25 this clause that will enable those who use it going

1570
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1 forward to apply it in a consistent way.

2 You know, there's a reason why we've only gone

3 through this once. And I do have concern that a broad

4 reading of the statute is going to lead -- could

5 potentially lead to hearings like this that are

6 potentially used for improper purposes.

7 I welcome the views of my fellow commissioners.

8 COMMISSIONER LIU: Well, I do agree that there must

9 be some relationship to the office, that the wrongful

10 behavior has to have some relationship to the office,

11 but I do believe that the intent of the voters was to

12 add a clause that was not there at the time of the

13 Mazzola case because they knew, presumably, what the law

14 was at the time and they chose to add a second clause.

15 So I would read the clause in this very similar

16 vein, also in a narrow vein, as relating to the office,

17 but I would read that second clause as "conduct that

18 falls before the standard of decency, good faith and

19 right action impliedly required of all public officers"

20 and, in that vein, that it be connected to the office of

21 the sheriff.

22 So I would read it as, as applied to this case,

23 "conduct that falls below the standard of decency, good

24 faith and right action impliedly required of the

25 sheriff" and that's how I would interpret that

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1 provision.

2 COMMISSIONER HUR: And would you find that official

3 misconduct occurred in this case?

4 COMMISSIONER LIU: Yes, as to what's alleged in

5 counts One and Four as to the -- One and Four.

6 COMMISSIONER HUR: Physical.

7 COMMISSIONER LIU: Right, the physical conduct,

8 basically.

9 COMMISSIONER RENNE: Well, I've expressed my view

10 as to what I think that second provision provides. And

11 I think the voters would be shocked if we were to say a

12 public official who pleaded guilty to false imprisonment

13 was not -- had not engaged in official misconduct; that

14 is, they would say clearly a public official who has

15 pleaded guilty, particularly given the circumstances of

16 this case, that that conduct clearly falls below

17 anybody's standard of decency, good faith and right

18 action. I believe that's what the overwhelming majority

19 of voters would say.

20 Now, that doesn't address the second part that we

21 talked about, but I think for us to say that a public

22 official who's pleaded guilty has not committed an act

23 of official misconduct because it wasn't directly in

24 performance of his duties, but it took place in a

25 domestic setting, so I -- that I clearly would vote to

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1 recommend that we find that there was a violation, that

2 there was a violation of the section of official

3 misconduct.

4 COMMISSIONER HUR: Commissioner Studley?

5 COMMISSIONER STUDLEY: I think your points are very

6 well-taken and the potential abuse is real.

7 I look, though, at the way the voters developed and

8 amended this and think that they did not mean a very --

9 did not mean to create a very specialized and narrow

10 tool. I look, for example, at the fact that it says

11 "any wrongful behavior" when there were lots of other

12 words that could have been used that would talk about

13 degree of wrongfulness; and again, "that falls below the

14 standard of decency" when there are ways to have said

15 "falls well below" or "egregious" or some other way of

16 making those tests tougher.

17 And so I take those as saying something about the

18 voters' expectation that this was -- that we were

19 setting a high bar and that they wanted to create an

20 effective tool and, I think, balance -- take care of

21 risks that you were describing by creating a series of

22 protections, and that's where this can't be effectuated

23 by the act of a single officer.

24 It's not just the mayor acting alone. There is

25 this three-step process that I think is important to --

1573
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1 as a series of checks and balances and different roles

2 and different kinds of expertise.

3 There is no doubt -- and the public has made this

4 point many times -- there is a significant investment in

5 time, in attention, in disruption, in risk in doing this

6 instead of something else for a number of people that is

7 a high public cost of trying to maintain the standard

8 that I think is set by the public.

9 We may get more efficient at it if it comes up

10 again. The experience may let us get more quickly to

11 the resolution. I think there is also a lesson in this

12 that a mayor would act very carefully in using this tool

13 because there are extralegal considerations -- public

14 reaction, press considerations -- that would also

15 militate against overuse or at least suggest caution in

16 overuse.

17 I'll cut to the chase. I do see that for me, I

18 would find official misconduct under Option 2 because I

19 think that there is sufficient relationship between the

20 standard and the duties of the office.

21 I may be reading Mazzola a little bit differently,

22 but it's partly the same way Commissioner Liu does, that

23 part two -- when I said that the law is different than

24 it was, it's the addition of part two must mean

25 something or the voters would not have revised it to add

1574
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1 it later. So there you are.

2 COMMISSIONER HUR: Commissioner Hayon?

3 COMMISSIONER HAYON: Am I the only one left?

4 Yeah, I'm willing to -- to support Option 2 and add

5 a somewhat more narrow definition for the reasons that

6 you have advocated. And I appreciate all of the thought

7 and effort that you put into the thinking behind all of

8 these options, Commissioner Hur. I mean, really, it's

9 a -- it's a formidable challenge, and you have been more

10 than up to the task, and I thank you for that,

11 especially being -- you know, as a layperson, some of

12 this can get a little murky for me.

13 But with this definition, I certainly do see that

14 there is a relationship to the duties of this office of

15 sheriff and also that it is behavior that falls below, I

16 think, the common standard of decency. Domestic

17 violence is something that we take very, very seriously,

18 and just because it wasn't, you know, the most extreme

19 form doesn't mean that it isn't domestic violence.

20 And the sheriff is the head of a law enforcement

21 agency, and I don't think the sheriff should be an

22 example of reformative justice. I think the sheriff

23 should be an example of someone who follows the letter

24 of the law and is someone that we can all emulate. So

25 therefore, yes, I would certainly feel that this has

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1 been violated.

2 COMMISSIONER HUR: Okay. I think probably the -- I

3 appreciate the views of my fellow commissioners. I

4 appreciate also that I am clearly in the minority here,

5 but -- I mean, I think they're very informed and wise

6 views.

7 I will say one thing in response to Commissioner

8 Studley. You're right. The language of this thing is

9 all over the place. It could be interpreted as the

10 people wanting to be broad. One of the reasons, though,

11 that I think the people didn't want to be so broad is

12 because the power it gives the mayor to suspend an

13 elected official without pay while this entire process

14 goes on, I think, is pretty extraordinary.

15 And we may become more efficient going forward, but

16 it's still going to be disruptive. And I just -- I want

17 to protect this mayor, future mayors, and elected

18 officials from a provision that I am concerned is going

19 to be too vague to be applied. But I think -- you know,

20 I think we've pretty much setted the -- whether or not

21 official misconduct occurred.

22 I think the next thing we should discuss is what

23 our recommendation should be and whether the

24 recommendation should include a request that the sheriff

25 be removed from office or not.

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1 Mr. Emblidge -- I shouldn't -- I'm going to put you

2 on the spot here. Is that within our purview, to make a

3 recommendation of official misconduct and also make a

4 recommendation as to whether removal is appropriate or

5 not?

6 MR. EMBLIDGE: The charter says that the Ethics

7 Commission should make a recommendation as to whether

8 the charges should be sustained.

9 I think that's probably open to interpretation as

10 to whether -- whether, as Commissioner Renne has put it,

11 that there's two elements to that, whether there's a

12 finding of official misconduct and whether that could

13 result in removal from office, although a finding of

14 official misconduct, the charter seems to presume would

15 result in removal from office.

16 So I -- I guess I'm being a lawyer and am going to

17 tell you you can go either way, that you could just --

18 you certainly would be within the charter to make simply

19 a recommendation that the charges be sustained and leave

20 it up to the Board of Supervisors to decide whether to

21 agree with you and, if so, what the penalty is. Or if

22 you want to make a recommendation as to the penalty as

23 well, I think you're within your rights to do so.

24 COMMISSIONER HUR: Commissioner Studley?

25 COMMISSIONER STUDLEY: The page that we were having

1577
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1 trouble seeing goes on to say that "When any City law

2 provides that a violation of the law constitutes or is

3 deemed official misconduct, the conduct is covered by

4 this definition and may subject the person to discipline

5 and/or removal from office."

6 That addresses a very particular circumstance.

7 That "when. . . a violation of law" includes within it a

8 determination that if this ever happens, this would be

9 official misconduct. As to those, it says "discipline

10 and/or removal from office," and I wonder whether

11 there's any -- is that the only reference to a range of

12 different results? Or -- and even if it is, might we

13 import it to say that removal from office or suspension

14 without -- you know, up till now, suspension without

15 pay, if I recall, is not mandated. The mayor could have

16 suspended with pay.

17 So we have -- does this give us any either

18 authority or just a reminder that if in those

19 circumstances there's a range -- should we consider that

20 we could recommend as to a range if we find official

21 misconduct apart from this mechanism where it is

22 inherent within the law expressing the violation?

23 MR. EMBLIDGE: I guess I would read that section,

24 that sentence, as applyi ng to a specific violation of

25 the law that provides that a violation of that law

1578
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1 equals official misconduct.

2 The section that gives the mayor the power to do

3 what he did in this case gives him the power to suspend

4 and remove, not necessarily to suspend for a limited

5 period of time or to do some lesser -- impose some

6 lesser consequences than removal.

7 There is another section in 15.105 that provides

8 for automatic disqualification from office, but I'm not

9 sure that really informs you here.

10 COMMISSIONER LIU: Well, I throw this out just for

11 consideration here. In the amended charges, the charges

12 are that he be suspended based on engaging in official

13 misconduct. And then in the prayer of relief, the

14 charges ask that the Board of Supervisors -- upon the

15 vote of the Board of Supervisors sustaining the charges

16 that the sheriff be removed from office.

17 So I'm not sure that even the charges contemplate

18 that we determine what the appropriate penalty might be;

19 that that's for the board to decide.

20 COMMISSIONER HUR: And it's all for the board to

21 decide.

22 COMMISSIONER LIU: Well, correct.

23 COMMISSIONER HUR: It's all for the board to

24 decide.

25 COMMISSIONER LIU: Correct.

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1 COMMISSIONER HUR: I almost read that as suggesting

2 that we should make a recommendation as to removal.

3 I mean, if anything, they have to sustain seems

4 like should be subject -- it should be something we

5 recommend on, although I think it could be read either

6 way.

7 MR. EMBLIDGE: If I just may, it does say that if

8 the board sustains the charges, the officer shall be

9 removed from office.

10 COMMISSIONER HUR: Ah!

11 MR. EMBLIDGE: So I -- perhaps we're just parsing

12 words here. It may be theoretical, that if you think

13 there is a realm of official misconduct that you might

14 find that doesn't justify removal from office, that

15 probably you should also say you're not sustaining the

16 charges because recommending sustaining the charges

17 seems to mean you're recommending removal from office.

18 COMMISSIONER HUR: So you could -- let me see. So

19 you could -- you could --

20 Are you saying that we could find official

21 misconduct and recommend that the charges not be

22 sustained?

23 MR. EMBLIDGE: Before tonight, I hadn't thought of

24 it as a two-step inquiry. Before tonight, I assumed if

25 you found official misconduct, that would be the

1580
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1 recommendation; you'd pass that on to the board, and the

2 board would then decide whether to sustain the charges.

3 The charter -- the charter says that if the board

4 sustains the charges, the suspended officer shall be

5 removed from office. So I'm trying to square that

6 language with the two-step inquiry you're talking about,

7 because I'm not -- I'm not sure how that fits together.

8 I feel that we're trying to pound a bit of a round -- a

9 square peg into a round hole.

10 COMMISSIONER HUR: Mr. St. Croix?

11 MR. ST. CROIX: Commissioners, I -- with all due

12 respect, I think you're overcomplicating your

13 requirement here.

14 It says that you make a recommendation to the board

15 of whether the charges should be sustained. That's all

16 you need to do. "We recommend that they be sustained"

17 or "We recommend that they be overturned." I think it's

18 that simple. You don't have to --

19 COMMISSIONER STUDLEY: But the charges were a

20 package. I under- -- I appreciate that.

21 There were a package of charges. There was a

22 charging document with a number of provisions that the

23 mayor thought supported suspension without pay.

24 We have found one out of a half-dozen or so of

25 those, so we've already made it more complicated in the

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1 sense of saying instead of finding all six -- and if

2 that's sustaining the charges, then we didn't. We found

3 that five or so, some of them quite serious, were not --

4 did not rise -- we did not even find facts for, let

5 alone official misconduct.

6 So we've done something different than what the

7 mayor sent us already. And after having done all this,

8 I -- I at least would prefer -- or see what the other

9 commissioners would like to do -- would prefer to say

10 something to the supervisors about the actions they

11 might consider than -- than simply say, "We found one;

12 you have only -- you, the supervisors, only have one

13 choice," because I think at the very least there was a

14 big difference between what came to us and what is going

15 forward from us.

16 COMMISSIONER LIU: So are you saying then maybe we

17 should just specify what our -- the recommendation that

18 charges be sustained as to certain counts only or a

19 certain count?

20 COMMISSIONER STUDLEY: Mm-hmm. Right. And then

21 what meaning we think that might have -- and I have some

22 thoughts on that that I'll save -- if people think we

23 should do more than just pass it forward.

24 COMMISSIONER HUR: I mean, I'm in favor of that.

25 I'm just trying in my mind to square it with the

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1 automatic removal if there's a finding of official

2 misconduct. So maybe you can explain what you had in

3 mind and we can --

4 COMMISSIONER STUDLEY: Well, give me a minute to

5 think about it.

6 Well, one is that -- I guess I'm -- one strand is

7 the automatic removal if the supervisors agreed with us.

8 They first have to reach that or fail to act within 30

9 days, and then things happen.

10 But there were members of the public who said, and

11 I found this -- it got me thinking in a variety of

12 additional ways when they said it's unfortunate that

13 this has come this far. Commissioner Hayon said

14 something similar. Why don't we see more situations

15 like that here or elsewhere?

16 Because people take action. They either resolve

17 things with their supervisor or they resign or somebody

18 works out something to protect the interest that's at

19 stake. And we did not -- we, I think correctly, didn't

20 think that we had the ability to try to negotiate a

21 solution, but the supervisors might feel that they

22 could.

23 If they could -- I'm torn here. I'm balancing

24 several different things, and I do think there was under

25 these terms official misconduct. But I -- I think that

1583
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1 the domestic-violence issues raised here were serious

2 and responsibilities of the sheriff for domestic

3 violence are important.

4 At the same time, so is the voters' decision to

5 choose somebody for an office. The struggle is they

6 then said, "Once we vote, we have only this very extreme

7 measure, the recall provision, to allow us to go back

8 and say, 'We have new information since the election and

9 we want to do something different.'"

10 They created another pathway for a particular kind

11 of reason to recall that they wanted to have in place,

12 and I'm just wondering whether it's worth reminding the

13 supervisors -- and maybe by just talking about it, we

14 remind them -- that they may have alternatives if we

15 think that they did, or if we think that one charge is

16 different from the whole set of charging provisions

17 here.

18 So I am trying to work this through. I'm not

19 positive.

20 COMMISSIONER HUR: Mm-hmm. I mean --

21 COMMISSIONER STUDLEY: I don't have a fixed picture

22 of what I would suggest.

23 COMMISSIONER HUR: Commissioner Hayon?

24 COMMISSIONER HAYON: Well, I would just say we need

25 to send a written recommendation to the board. And then

1584
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1 when they have their proceedings, my understanding is

2 that the Ethics Commission will have an opportunity to

3 make a presentation, however short, and perhaps that's

4 the time to refer to some of these other issues.

5 Because otherwise, I agree with Mr. St. Croix. I

6 mean, why -- I don't think that we should complicate it

7 further. I think we should make a simple

8 recommendation.

9 And from what you said the charter said, if they

10 find -- if they all vote in agreement with a

11 recommendation that the individual is guilty, then

12 automatically, that person is removed from office; is

13 that correct?

14 MR. EMBLIDGE: Yes.

15 COMMISSIONER HAYON: That's how you read the

16 charter?

17 MR. EMBLIDGE: It says, "If, after reviewing the

18 complete record, the charges are sustained by not less

19 than a three-fourths vote of all members of the Board of

20 Supervisors, the suspended officer shall be removed from

21 office; if not so sustained. . . , then the suspended

22 officer shall be . . . reinstated."

23 COMMISSIONER HAYON: I mean, that seems pretty

24 straightforward, unlike some other parts of the charter.

25 COMMISSIONER HUR: When Commissioner Renne raised

1585
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1 this two-step inquiry idea, I liked it in part because I

2 think one of the -- one of the difficulties here is in

3 some ways the sheriff was the guinea pig.

4 And if the charter provision was so difficult for

5 us to parse, then in some ways, it does seem -- it gives

6 me some pause for him to be removed based on a provision

7 that we took quite a while and had a hard time in

8 deciding exactly what it meant.

9 But Commissioner Hayon, I'm kind of -- I think

10 you're right. I mean, based on what Mr. Emblidge just

11 read, I'm not sure we have any leeway to do anything

12 other than sustain or not sustain the charges. I don't

13 know.

14 Commissioner Renne, did you have any further

15 thoughts on the matter?

16 COMMISSIONER RENNE: Well, we could address the

17 question of whether or not we think that the mayor

18 exercised his discretion in filing the charges and in

19 proceeding in an unreasonable manner. Now, whether that

20 would assist the board at all, I don't know, because as

21 Mr. Emblidge has pointed out, it's either the charge of

22 official misconduct is sustained by us on our

23 recommendation or it's not.

24 COMMISSIONER STUDLEY: But if four of us are

25 inclined to believe that there was official misconduct,

1586
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1 doesn't that validate the mayor's action on at least

2 that one provision, that there was a basis, that he had

3 found the same result that four of us would also see,

4 that there was an official misconduct element?

5 I've always thought -- as you've been talking about

6 the two-part, I've always thought that this was a

7 going-forward issue, that it -- once the mayor put it in

8 our jurisdiction, put this in our lap, that it didn't

9 matter what or why he did it. For this process, that

10 becomes the voters' issue. That we should be looking at

11 the merits of an issue and looking forward at the

12 consequences and not questioning how it got here.

13 I thought Commissioner Hur was very -- you know,

14 put it in a very crisp way the last time we talked about

15 this part of it.

16 But there is one piece that people aren't reading,

17 by the way, just for the completeness and those who are

18 not burdened with the 15 inches of documents. There are

19 two elements: The commission transmits the record to

20 the Board of Supervisors with a recommendation as to

21 whether the charges should be sustained.

22 Mr. Emblidge read this: ". . . , after reviewing

23 the complete record, the charges are sustained by not

24 less than a three-fourths vote of all members of the

25 Board of Supervisors, the suspended officer shall be

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1 removed from office; if not so sustained, or if not

2 acted on by the Board of Supervisors within 30 days

3 after the receipt of the record from the Ethics

4 Commission, the suspended officer shall thereby be

5 reinstated."

6 So the board has somewhat more complicated options

7 before them. After either vote by three-fourths or

8 better to sustain the charges, in which case the officer

9 is removed, but if they do not act at all for 30 days,

10 the officer's reinstated. Have I -- did I say that

11 right?

12 MR. EMBLIDGE: Yes, that's correct.

13 COMMISSIONER STUDLEY: So there is a real

14 crossroads for the supervisors.

15 COMMISSIONER HUR: Yeah. I'm not sure there's much

16 we can say. I mean, I do think we should have a written

17 opinion for the board, but I am inclined to vote, to

18 have a vote as to whether to sustain the charges, and

19 then send that recommendation to the board.

20 Let's talk about this written summary. You know, I

21 think one proposal could be that Mr. Emblidge draft a

22 summary opinion, essentially, of the bases for the vote

23 to sustain the charges. One option is for a member of

24 the majority on the commission to draft that. I

25 think -- and then subsequently, we could either simply

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1 adopt it as a summary -- you know, there have been

2 summary -- we have summarized the proceedings previously

3 without having to vote on them and ratify them -- or, if

4 this document is more in the form of an opinion, then I

5 think we would probably want to come back, have a look

6 at it together in another special meeting, and then vote

7 to adopt it.

8 Do my fellow commissioners have views as to which

9 of these potential options for a written summary or

10 opinion would best suit the situation?

11 COMMISSIONER RENNE: Would it be sufficient to just

12 transmit the transcript of our discussion and our

13 determination without anything else?

14 COMMISSIONER HUR: That could certainly be done. I

15 think it makes the board's job harder because there's a

16 lot more, a lot more to read.

17 But anybody else have -- what do people think about

18 Commissioner Renne's proposal?

19 COMMISSIONER LIU: I suppose that that's what I was

20 envisioning, Commissioner Renne's proposal.

21 But as you said it, were you envisioning in terms

22 of a written summary simply how we came out on the

23 findings of fact and then the vote itself? Is that what

24 you're envisioning as a summary or --

25 COMMISSIONER HUR: Well, I think we'd want to

1589
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1 explain to the board exactly how we interpreted the

2 statute. I think if they receive this transcript, it's

3 going to be difficult for them to determine, really,

4 what the basis was. Obviously, we're deliberating in

5 public, which is a highly unusual thing if you're

6 adjudicating a matter, at least in my experience.

7 But -- so I guess I worry that your -- the nuance of the

8 arguments that have been provided will be lost if we

9 simply send them a 5,000-page transcript, 300 pages

10 today.

11 COMMISSIONER LIU: So are you then envisioning,

12 perhaps, the salient points we found from the findings

13 of fact, the specific findings of fact, how we came out

14 on that, and then what we decided on the two options?

15 COMMISSIONER HUR: I mean, I guess I'm envisioning

16 either something very summary, that says this is the

17 fact that we found -- these are the facts that we found

18 to support the charges; this is the law, how we

19 interpreted the law; this is the application of the law

20 to the facts. I think that's a possibility.

21 Another possibility is more an order that we would

22 see from a court that probably has more detail and, you

23 know, would provide perhaps even, I guess, just more

24 detail as to this decision.

25 Do the parties have views on this?

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1 COMMISSIONER STUDLEY: While they think about it

2 for just a second, I -- many people have talked about

3 the passage of time. And getting to the point where the

4 supervisors can initiate their consideration, I think

5 would be just for all concerned.

6 You might want to also think about how that relates

7 to the presentation by the commission to the board which

8 we will make. Is that the opportunity to make some of

9 this clear? It may not substitute for a writing, but it

10 could complement it. And do we have any way of knowing

11 whether the supervisors would want to inquire of either

12 the representative commissioner who takes that part or

13 all of us at that point?

14 COMMISSIONER HUR: The risk of a representative or

15 even the entire commission, frankly, appearing in front

16 of the board and having a substantive discussion with

17 the board about our findings --

18 Pardon me?

19 COMMISSIONER STUDLEY: I thought -- I thought that

20 was expected. Was that not agreed on yet?

21 COMMISSIONER HUR: Mr. Emblidge, maybe you can

22 explain the board's expectation.

23 MR. EMBLIDGE: The Board of Supervisors had a

24 meeting where they discussed the procedure that they

25 intended to follow when the matter gets to them.

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1 They -- it's my belief that they do expect to have

2 a presentation of up to ten minutes from the Ethics

3 Commission, and I certainly had the sense from them that

4 they expected to ask questions of the representative of

5 the Ethics Commission.

6 The difficulty that I explained to them is if there

7 is one commissioner there, for example, trying to

8 explain the process and the reasoning that went into

9 whatever recommendations you make, that person is put in

10 a difficult position trying to put into words what was

11 in the mind of his or her fellow commissioners.

12 So I think it will be a bit of a delicate task, but

13 I do think the board is expecting some presentation from

14 the commission and some explanation of how the

15 commission got from point A to point B.

16 COMMISSIONER HUR: And the reason a written

17 document may be helpful is that the risk of the

18 representative straying outside of what was actually

19 decided is less if there's a written document that

20 formalizes --

21 COMMISSIONER STUDLEY: Right. It really narrows.

22 COMMISSIONER HUR: Right. And the representative

23 could be talking more about the procedure that was

24 followed and, you know, could answer more procedural

25 rather than substantive questions.

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1 Mr. Keith, Mr. Waggoner, any thoughts on this?

2 MR. KEITH: Commissioners, I think that -- in light

3 of the problems that Mr. Emblidge has discussed in terms

4 of the commission speaking as a body, I think the scope

5 of the questions at the Board of Supervisors is likely

6 to be restricted to things like basic procedural

7 matters -- who showed up for cross-examination, what

8 procedures did you follow -- and I doubt that there

9 would be much of substance.

10 On the other hand, and this really supports just

11 making a simple recommendation here, the board is

12 mandated to review the complete record, which means they

13 will be reviewing the transcript of this proceeding.

14 And I think the commissioners have discussed the

15 evidence in a way and discussed the charges in a way

16 that they're going to be viewing anyway. And I think

17 trying to reproduce in another document and to have a

18 special meeting for that would require a lot of effort

19 that may not be needed.

20 And so I think in the interests of just moving this

21 along, we'd say let's not have a separate sort of

22 opinion. Let's treat this transcript of the -- of this

23 hearing as the commission's discussion of the evidence.

24 That would be the mayor's position.

25 MR. WAGGONER: Thank you, Commissioners, and I

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1 appreciate the consideration you're giving these issues.

2 I just want to make a couple of brief points on

3 this issue. The charter already says, and that's been

4 reviewed today, that there can be official misconduct

5 that does not warrant removal. A felony crime of moral

6 turpitude, which requires removal by the mayor, but then

7 also, for it to be permanent, has to go before the

8 Ethics Commission and the Ethics Commission can

9 determine whether or not that felony crime of moral

10 turpitude rises to the level that warrants permanent

11 removal or not.

12 So we already know that the charter contemplates

13 the possibility of official misconduct that does not

14 warrant permanent removal.

15 So I would also like to refer you to --

16 COMMISSIONER HUR: How do you reconcile that with

17 the provision that Mr. Emblidge read?

18 MR. WAGGONER: This is how I reconcile it, because

19 the charter says -- with all due respect, the charter

20 says that if you sustain the charges, plural, then

21 removal has to happen.

22 Well, here, you've already determined, to go to

23 Commissioner Studley's point earlier, that it appears

24 from my hearing of what your discussion that you're

25 going to reject at least some if not most of the counts.

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1 So if you're rejecting some of the counts, then by the

2 clear language of the charter, you're not going to

3 sustain all of the charges. And therefore, if you're

4 not going to sustain all of the charges, then you

5 can't -- there can't be a removal. By the clear

6 language of the charter, "the charges," it doesn't give

7 you the option to pick one charge and not another one.

8 So then, if you're not prepared to accept that very

9 narrow reading of what the language is, then it seems to

10 me that Commissioner Renne's point that you can make --

11 your recommendation can be as nuanced as you would like

12 for it to be. You can recommend that three charges be

13 sustained and three be rejected; that yes, those three

14 charges are official misconduct, but it does not warrant

15 removal; or one warrants removal, but not the others; or

16 none of them warrant removal, but yes, one of them may

17 be official misconduct or wrongful conduct.

18 In other words, I would respectfully submit that

19 your recommendation can be as nuanced as your discussion

20 has been, and you've spent several hours discussing what

21 this provision means. And as I argued earlier, that

22 very ambiguity should be read in the light most

23 favorable to the sheriff.

24 And so in that regard, I believe giving the Board

25 of Supervisors more options, not less, is consistent

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1 with due process, consistent with respecting the intent

2 of the charter provisions, and also with your

3 discussion.

4 Reading the charter in the most narrow way, that

5 you either have to say yes, up or down, and if it's yes,

6 then it's removal, period, that's not -- that's not

7 consistent with the overall rest of the charter

8 provision that clearly says there can be official

9 misconduct that doesn't warrant removal.

10 COMMISSIONER HUR: What is your position on the

11 written document?

12 MR. WAGGONER: I think there, again -- you know, I

13 was -- I was actually -- I appeared before the Board of

14 Supervisors.

15 We were notified by the clerk of the board a couple< br />
16 of weeks ago that they were going to be discussing their

17 procedure, that they already had a draft procedure in

18 place, presumably that Mr. Emblidge drafted, that we got

19 very short notice of and had all of three minutes to

20 address before the board during their public-comment

21 period.

22 So there was already a draft procedure, and we

23 objected, actually, at the time. I objected --

24 COMMISSIONER HUR: My question is what is your

25 position on whether we should create a written document

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1 summarizing our findings or whether we should just

2 transmit the record as is with all our, you know, views

3 on the transcript?

4 I mean, obviously, we're going to do that, too.

5 But what is your view on whether we need a written

6 summary of our findings?

7 MR. WAGGONER: I think the more information that

8 the board has to help them make a decision the better,

9 so that a written summary is certainly going to be more

10 helpful to the board than have them pore through 15-plus

11 pages -- or inches of documents. Knowing your rationale

12 and having that very clearly stated in a written

13 document, I think the board would very much appreciate,

14 and we would respectfully request that as well.

15 COMMISSIONER HUR: Okay. Thank you.

16 Commissioners? Views on the written document?

17 COMMISSIONER RENNE: Well, I -- you made what you

18 said was sort of a draft or a poll of the board, of the

19 commission, and four of us seem to agree that there was

20 a violation of the official misconduct statute.

21 But going to the charging document, I -- looking at

22 it and wondering which one of the charges is or which

23 one of the charges did we -- are we saying we're

24 sustaining? Because the way they drafted this, they

25 sort of incorporated all the paragraphs, some of which

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1 included the impeding witnesses, things of that nature,

2 which we have found -- which we have found there wasn't

3 sufficient evidence.

4 So that it seems to me that we've got to have -- in

5 fairness to the sheriff and in fairness to the board, we

6 have to have some clear statement of the charge that we

7 say we are sustaining.

8 And I go through -- going through the charges, One

9 through Six, and there are a number of -- certainly,

10 counts Two and Three, we have said we didn't think

11 there were -- there was sufficient evidence.

12 And the others are -- as I say, they've sort of

13 commingled a lot of their factual statements, many of

14 which we've rejected; whereas I was suggesting that I

15 believe that the conviction and the circumstances that

16 led up to it is what is the official misconduct.

17 COMMISSIONER HUR: So is that more Count Four?

18 COMMISSIONER RENNE: Well, Count One, which they

19 call domestic violence, it looks like. Count -- Count

20 Four, except for the fact they incorporate 1 through 46

21 paragraphs, which has a lot of statements about which we

22 have said there was not sufficient foundation.

23 COMMISSIONER HUR: But when we sustain a count,

24 we're not sustaining -- I mean, we're just making a

25 finding that each of the elements --

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1 COMMISSIONER RENNE: But the charge. We're

2 recommending the charges be sustained. Well, the counts

3 are their charges, aren't they?

4 COMMISSIONER HUR: Right. So -- but I mean, just

5 because a complaint incorporates by reference every

6 paragraph, that doesn't mean sort of the decision on the

7 charge has to incorporate every paragraph. I mean, you

8 and I are used to jury instructions that tell us exactly

9 what the elements are --

10 COMMISSIONER RENNE: Right.

11 COMMISSIONER HUR: -- and we can identify those

12 clearly.

13 But you raise -- I mean, you raise a good point. I

14 mean, even in Count One, I'm not sure we found that --

15 or I'm not sure we're inclined to find that he engaged

16 in domestic violence. I mean, obviously, we -- we agree

17 he committed an act of violence. I don't actually have

18 in front of me the elements of domestic violence.

19 But I mean, there certainly are portions of this

20 where even the four who agree that there's official

21 misconduct may not -- may not agree with every

22 allegation in these -- in Count One, at least.

23 So what are you suggesting, Mr. Renne?

24 COMMISSIONER RENNE: Well, I guess what I'm

25 suggesting is that the written document, if we prepare

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1 one, should be a clear articulation of what the charges

2 were that we found supported, sustained the mayor's

3 action in suspending him. And --

4 COMMISSIONER HUR: In your view, what is that?

5 What -- having heard what your fellow commissioners have

6 said, what should that -- what should that document say?

7 Which of these were sustained or is there sufficient

8 evidence to sustain? One and Four? Is that parts of

9 One and Four?

10 COMMISSIONER RENNE: Yes.

11 COMMISSIONER HUR: Anything else?

12 COMMISSIONER STUDLEY: I'm pausing on One. Four is

13 a clear factual statement. But committing domestic

14 violence against his wife imports a very complicated,

15 you know, area of expert analysis, and I wonder if it

16 complicates things to add that or whether it is what we

17 really mean. We're just staring at it over here.

18 I'm not saying that it might not be. I'm just not

19 sure that we -- that I'm in a position to say that that

20 happened, whereas No. Four --

21 COMMISSIONER HUR: Right.

22 COMMISSIONER STUDLEY: -- I can.

23 COMMISSIONER HUR: And I don't think the commission

24 has to find domestic violence per se for it to be

25 official misconduct. I mean, in light of the rationale

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1 that's been provided. So it may not be essential to the

2 recommendation in any event.

3 COMMISSIONER STUDLEY: Right. Which is not to say

4 that it doesn't exist or that it's not very real.

5 COMMISSIONER HUR: Correct.

6 COMMISSIONER STUDLEY: But it may be cleaner and

7 more useful for us to opine on what we know. And to the

8 extent that it is within -- that those things happened

9 within that context, that's beyond my ability to be

10 certain about.

11 COMMISSIONER LIU: So perhaps it's also Count Five

12 instead of Count One, because Count Five captures the

13 discussion we had about prong two, which is conduct that

14 falls below the standard of decency required of a

15 sheriff and a sheriff-elect.

16 COMMISSIONER HUR: I guess except for the reference

17 to paragraphs 19 to 31.

18 COMMISSIONER LIU: Correct.

19 COMMISSIONER HUR: Yeah, that --

20 COMMISSIONER STUDLEY: So are we saying in a sense

21 that Count Four is the basis for Count Five?

22 The wrongful behavior consisting of that crime or

23 that crime and the facts related just to that are what

24 we determined falls below the standard.

25 Is that what you were saying?

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1 COMMISSIONER LIU: Yes. Thank you.

2 COMMISSIONER HUR: What this discussion has

3 suggested to me is that I think something in writing is

4 going to be helpful to the board. If we were -- so --

5 Commissioner Studley, is there something else?

6 COMMISSIONER STUDLEY: No.

7 COMMISSIONER HUR: So I think the question is what

8 form that should take.

9 I think something that is as simple as "Here are

10 the facts that we found could constitute official

11 misconduct; here's the law we applied; here's our

12 application of that law to these facts; here are the

13 charges that we think should be sustained in light of

14 our findings and why," I think is sufficient.

15 I mean, I am kind of, again, thinking out loud that

16 whatever this -- however this document comes out, I am

17 wondering whether we will need a special meeting for the

18 commission to adopt it. We have devoted a lot of time

19 to this, and I know this means more time, but given its

20 complexity, it seems hard to see us doing -- tying it up

21 without an approved, written document.

22 Now, I don't think this is going to cause,

23 actually, that much delay, because the record has to be

24 prepared. The board is in recess currently anyway. So

25 perhaps we can schedule something in early September to

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1 adopt whatever findings and then send that with the rest

2 of the package to the board.

3 Commissioner Studley?

4 COMMISSIONER STUDLEY: I don't know if this is what

5 you want, but I'm out of the country from September 4th

6 to 14th -- the 2nd to 14th, 16th. We had a meeting date

7 on the 27th. I don't know if it's too late to notice

8 for that, if that would -- was a window we could do

9 this.

10 COMMISSIONER HUR: Mr. St. Croix, what do you -- do

11 you have thoughts on this?

12 MR. ST. CROIX: We could do -- we could still use

13 that meeting date on the 27th if you wanted to.

14 COMMISSIONER HUR: August 27th?

15 MR. ST. CROIX: Yeah.

16 COMMISSIONER HUR: Yeah, I'm going to be out of the

17 country on business the next two weeks.

18 MR. ST. CROIX: Well, we'll have to look for

19 another one.

20 I would recommend that you make a finding tonight

21 as a basis for that --

22 COMMISSIONER HUR: Yeah.

23 MR. ST. CROIX: -- document to be prepared. But

24 we're going to have to work out a follow-up time. The

25 alternative is you can just empower Mr. Emblidge to do

1603
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1 the drafting on behalf of the commission and trust that

2 he will put together a correct document. It's up to the

3 commissioners if you want to have a final approval or

4 not.

5 COMMISSIONER STUDLEY: Could --

6 COMMISSIONER HUR: Commissioner Studley, please.

7 COMMISSIONER STUDLEY: I'm just going to ask if we

8 could delegate this to the Chair and Mr. Emblidge.

9 MR. ST. CROIX: Certainly.

10 COMMISSIONER STUDLEY: It's a lot to ask --

11 MR. ST. CROIX: Yeah.

12 COMMISSIONER STUDLEY: -- somebody to do without

13 the commission review. And I don't need to be here if

14 we've taken a vote now. I'm happy -- I don't mind

15 missing the resolution of the document if that's not

16 necessary.

17 COMMISSIONER HUR: And I don't -- by the same

18 token, I don't need to be here either. So

19 Commissioner --

20 Or Mr. Emblidge?

21 MR. EMBLIDGE: Two points. One is if you're going

22 to delegate some drafting to me, I'm going to need the

23 transcript, so there's going to be some time before that

24 can be prepared. And then in my other life as running a

25 law firm, I've got depositions Monday, Tuesday,

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1 Wednesday, and Friday of next week, so I don't think I'm

2 going to have too much time for drafting next week.

3 COMMISSIONER HUR: Okay.

4 COMMISSIONER HAYON: Well --

5 COMMISSIONER HUR: Commissioner Hayon?

6 COMMISSIONER HAYON: Well, as has been said, I

7 think tonight we need to vote on our findings so that

8 the ball can get rolling, since the Board of Supervisors

9 has to get the entire transcript and all of the records

10 anyway. And then they can schedule their hearing,

11 whenever that's going to be.

12 And then you already have, I would imagine, an idea

13 of what this document should look like in outline form.

14 Am I right? Somewhat?

15 COM MISSIONER HUR: Other than what I've spoken --

16 COMMISSIONER HAYON: You've said some things that

17 kind of outlined what it might consist of, and you could

18 give Mr. Emblidge some guidelines on that.

19 And when you have the opportunity to begin drafting

20 it, then you can proceed, if that makes sense to you.

21 And then we as a commission can approve that document

22 without delaying any proceedings at whatever meeting is

23 set up for us to do so.

24 COMMISSIONER HUR: I have no objection to that.

25 Okay. Well, we can schedule it. We don't have to

1605
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1 schedule it right now. But I do think we should prepare

2 some sort of summary document. I will work with

3 Mr. Emblidge to put it together for approval by the

4 commission at large.

5 Is there any objection to that procedure from the

6 parties?

7 MR. WAGGONER: No.

8 MR. KEITH: No.

9 COMMISSIONER HUR: Okay. Okay. So I think --

10 unless there's anything else, are we prepared to make

11 the motion for a recommendation to the board?

12 Is there a motion to sustain the charges relating

13 to the physical abuse for the reasons that we discussed

14 here today; secondly, to adopt all of the interim

15 rulings that have been made throughout these

16 proceedings; and finally, to authorize the preparation

17 of a summary document of the findings made by the

18 commission, to be subsequently ratified by the

19 commission as a whole?

20 COMMISSIONER RENNE: So move.

21 COMMISSIONER HAYON: Second.

22 COMMISSIONER HUR: All in favor?

23 COMMISSIONER STUDLEY: Aye.

24 COMMISSIONER LIU: Aye.

25 COMMISSIONER HUR: I oppose the first portion, but

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1 agree with the second and third portions.

2 Okay. The motion is adopted.

3 Anything else from the parties?

4 MR. KEITH: So Commissioner, when is the next

5 meeting going to be held?

6 COMMISSIONER HUR: We need to figure it out. We'll

7 be in touch with you.

8 MR. KEITH: Okay.

9 MR. WAGGONER: I'm a little bit unclear as to --

10 So are you rejecting all of the counts, but then

11 creating a new count of official misconduct? I'm a

12 little unclear as to exactly what action the commission

13 is taking.

14 COMMISSIONER STUDLEY: You know, that's --

15 I wonder if that question suggests that our motion

16 should be in terms of Count Four or Four and Five so

17 that what we adopt tracks something that was going

18 forward.

19 COMMISSIONER HUR: I mean, the problem with that is

20 that Four and Five contain, as Mr. Renne suggested,

21 allegations that we did not --

22 COMMISSIONER STUDLEY: Allegations in the

23 paragraphs?

24 COMMISSIONER HUR: In the paragraphs, and which are

25 incorporated by reference.

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1 COMMISSIONER STUDLEY: So maybe if we narrow it to

2 point 49, or sentence 49, and read that and see if we --

3 if that's what we mean, and revise 54 so that it -- so

4 that it tracks the formal basis that we have?

5 COMMISSIONER HUR: I mean, I think the motion was

6 clear enough. I mean, the whole purpose of the written

7 document is to summarize what the findings are. You

8 know, we clearly made a finding of official misconduct

9 based on the physical violence that occurred.

10 I think that suggests we also rejected a number of

11 findings, and I -- I mean, I suppose we could make it

12 more specific if the commissioners would like to, but --

13 COMMISSIONER STUDLEY: I'm just wondering, before

14 Mr. Waggoner has to say it, whether there could be some

15 criticism that the crime of falsely imprisoning is

16 different from physical violence, and while they might

17 have something in common, that we would be vulnerable to

18 not having acted on one of the charges that was brought

19 before us.

20 COMMISSIONER HUR: Okay.

21 COMMISSIONER STUDLEY: Not a criminal lawyer,

22 but --

23 COMMISSIONER HUR: We can remake the motion. Would

24 you like to remake the motion, Commissioner Studley?

25 COMMISSIONER STUDLEY: Do you want to make it?

1608
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1 COMMISSIONER RENNE: I'm not sure what the

2 amendment is that you were suggesting.

3 COMMISSIONER STUDLEY: That we -- well, tell me if

4 this is -- what I'm thinking is that when we -- when we

5 said "sustain the charge re physical abuse," by adopting

6 point 49 and 54 subject to specific references within

7 the paragraphs, that we adopt the substantive content of

8 those two as the charges that we will -- that we are --

9 COMMISSIONER HUR: You know, I --

10 COMMISSIONER STUDLEY: -- defining as official

11 misconduct. I guess maybe we're doing something

12 different, but this may help us.

13 COMMISSIONER HUR: Sure. And I obviously did not

14 vote with the majority on this, but I mean, if I were in

15 the majority, I would be concerned that that might be

16 too narrow given the breadth of the discussion that

17 ensued. And --

18 I mean, the charter only says that we have to make

19 a recommendation as to whether official misconduct

20 should be sustained or not, and I'm wondering whether

21 you're going to be limiting the authority of the

22 drafting if we limit it so specifically to two specific

23 paragraphs in the charges.

24 COMMISSIONER STUDLEY: I think it really depends on

25 what part the count, the allegations, played. And I

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1 never quite understood why we had an amended charge of

2 official -- amended charges and particulars in the first

3 place, why it wasn't just we figure out what troubled us

4 and what we thought was official misconduct.

5 So I really defer to the counsel and Mr. Emblidge.

6 If -- if we have to stand on those counts, then I think

7 we should stand firmly on the ones that we're adopting;

8 otherwise, does it look like these were the counts and

9 we did something else? And if they don't converge

10 sufficiently, our process would be unhelpful to the

11 supervisors.

12 COMMISSIONER HUR: Mr. Emblidge?

13 MR. EMBLIDGE: What I'm hearing from the commission

14 is that you have voted four to one to sustain the

15 charges of official misconduct based on the sheriff's

16 conduct on December 31st and his subsequent conviction

17 as reflected in Counts Four and Counts Five of the

18 charging document.

19 If I'm correct, you might want to amend your motion

20 to incorporate that language, so that it's clear that

21 you are sustaining it both on the actions that occurred,

22 the conviction that resulted from those actions, and

23 that you believe that those are related to Counts Four

24 and Counts Five.

25 COMMISSIONER HUR: Any objection to that?

1610
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1 Okay. Would someone like to make the motion?

2 COMMISSIONER HAYON: I move that we adopt

3 Mr. Emblidge's recommendation for the charges.

4 COMMISSIONER STUDLEY: Second, unless you'd like us

5 to restate it.

6 COMMISSIONER HUR: Okay. Well, I think we also

7 need to add the adoption of the interim rulings and the

8 empowering of the written summary. Maybe I'll take a

9 shot to just tie it all together.

10 Is there a motion to sustain the charges as to the

11 conduct that occurred on December 31st, 2011, and the

12 subsequent conviction as reflected in counts Four and

13 Five of the amended charges of official misconduct;

14 second, to adopt the interim rulings of the commission

15 made throughout the course of these proceedings; and

16 third, to empower a written summary to be subsequently

17 reviewed and ratified by the commission?

18 COMMISSIONER STUDLEY: So moved.

19 COMMISSIONER RENNE: Second.

20 COMMISSIONER HUR: All in favor?

21 COMMISSIONER LIU: Aye.

22 COMMISSIONER HAYON: Aye.

23 COMMISSIONER RENNE: Aye.

24 COMMISSIONER STUDLEY: Aye.

25 COMMISSIONER HUR: Opposed? I oppose as to the

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1 first part, but agree as to the second and third parts.

2 Okay. Any other objections or concerns from the

3 parties?

4 MR. WAGGONER: I would only add that I don't think

5 the charter authorizes the commission to create new

6 language of official misconduct. What the language that

7 you just adopted, at a four-to-one vote, says, "We

8 sustain official misconduct for the incident on

9 December 31st as reflected in Four and Five." It does

10 not say "We sustain Four and Five."

11 The charter says you either sustain the mayor's

12 charges or not. It does not authorize the commission to

13 draft new language or new charges that are reflected in

14 other charges. So I would just state that for the

15 record. Thank you.

16 COMMISSIONER HUR: I think it was clear enough.

17 Any dissenting view?

18 COMMISSIONER STUDLEY: No. The motion was, I

19 think, clear enough to say that we were adopting the

20 heart of counts Four and Five.

21 COMMISSIONER HUR: Okay? Thank you very much.

22 With that, the meeting is adjourned.

23 (Proceedings adjourned at 6:33 p.m.)

24 ---o0o---

25

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1 CERTIFICATE OF REPORTER

2

3 I hereby certify that the foregoing

4 proceedings in the within-entitled cause took place at

5 the time and place herein stated and were reported by

6 me, MARLENE PUAOI, a Certified Shorthand Reporter and

7 disinterested person, and were thereafter transcribed

8 into typewriting;

9

10 And I further certify that I am not of counsel

11 or attorney for either or any of the parties nor in any

12 way interested in the outcome of the cause named in said

13 caption.

14

15 IN WITNESS WHEREOF I have hereunto set my hand

16 and affixed my signature this 26th day of August 2012.

17

18

19 MARLENE PUAOI, CSR, RPR
California CSR No. 7370
20

21

22

23

24

25

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