Ethics Commission
City and County of San Francisco

Minutes – April 23, 2012

Minutes of the Special Meeting of
The San Francisco Ethics Commission
April 23, 2012
Room 400, City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102

The complete court reporter’s transcript of the April 23, 2012 special meeting has been posted on the Commission’s website.  A copy of the transcript is also available for review at the Commission office during regular business hours.

I. Call to order and roll call

Chairperson Hur called the meeting to order at 4:31 p.m.  Chairperson Hur introduced counsel for the Ethics Commission, Scott Emblidge.

In the spirit of full disclosure, Commissioner Renne announced that prior to his appointment to the Commission, he was asked to make a $100 contribution to Chris Cunnie, an opponent of Sheriff Mirkarimi in the November 2011 election.   He stated that he never met Mr. Cunnie either before or after making the contribution.  He stated that he approaches the hearing with an open mind. 

Chairperson Hur stated that public comment would occur at the end of the hearing and would be limited to two minutes per person.  He asked the members of the public to line up in order to ensure an orderly process and to comply with all building regulations.

COMMISSION MEMBERS PRESENT:  Benedict Y. Hur, Chairperson; Jamienne S. Studley, Vice-Chairperson; Beverly Hayon, Commissioner; Dorothy S. Liu, Commissioner; Paul A. Renne, Commissioner.

STAFF PRESENT:  John St. Croix, Executive Director; Mabel Ng, Deputy Executive Director; Catherine Argumedo, Investigator.

COUNSEL FOR THE ETHICS COMMISSION: Scott Emblidge.

COUNSEL FOR THE MAYOR:  Peter J. Keith, Deputy City Attorney (DCA), Sherri Sokeland Kaiser, DCA.

OTHERS PRESENT: Sheriff Ross Mirkarimi; Shepard S. Kopp, counsel for Sheriff Mirkarimi; David Waggoner, counsel for Sheriff Mirkarimi; Patrick Monette-Shaw; Ernestine Weiss; Peter Warfield; Pedro Fernandez; David Pilpel; Barbara Tenguery; Francisco DeCosta; Franzo King; Pastor L. Gavin; Kevin Babcock; Tammy Bryant; Christina DiaGuardo; Maureen Daggett; Sharon Newitt; Jose Morales; Terry Anders; Mindy Kenner; Bob Alavi; Paul Melbostad; Larry Haines; Mearle Easton; Rosario Cervantes; Paula Mohammed; Michael Tom; Beverly Upton; Derrell Hunter; and other members of the public.

MATERIALS DISTRIBUTED: 
– Memorandum from the Executive Director re: Recommendations on hearing on charges of official misconduct, dated April 17, 2012.

II. The Ethics Commission will confer on procedural issues regarding charges pending against Sheriff Ross Mirkarimi. 

The attorneys stated their appearances.  Chairperson Hur stated that DCA Peter Keith submitted a memo that afternoon and that the document would be available on the Commission’s website as soon as possible.  He asked to hear from the parties about the procedural issues raised in the Executive Director’s memo dated April 17, 2012.

DCA Keith stated that the Mayor’s goal is to ensure that there is a full and fair proceeding in which the Commission and the public hear all of the evidence relevant to the charges of official misconduct.   He stated that a live hearing would better serve the goals of the Commission in determining the facts and allow the Commission to revolve factual and credibility issues.  He stated that the Mayor’s proposal is directed towards a live hearing.  He stated that some witnesses may not cooperate with the Mayor’s Office.  Chairperson Hur asked DCA Keith to identify witnesses for whom he did not expect to obtain a declaration and DCA Keith identified Ms. Peralta Haynes, Ms. Lopez, and Sheriff Mirkarimi.  DCA Keith stated that the Mayor’s proposal is that the Commission take briefing on three issues: 1) standard of proof; 2) procedural issues of the hearing itself; and 3) whether the Sheriff is going to make a claim about whether a hearing would be private.  DCA Keith stated that the Mayor did not dispute that he has the burden of proof.

Shepard Kopp objected to any of these proceedings occurring.  He stated that the Sheriff objects to anything other than the Commission dismissing the charges.  He stated that it is difficult to formulate a response regarding possible witnesses or testimony without understanding what the Mayor will present as evidence.  Mr. Kopp also asked whether the Sheriff is required to cooperate with the investigation of the City Attorney’s Office.  He referenced a letter which was sent earlier in the day to the Executive Director.  He stated that he did not agree that the City Attorney may review and investigate on its own.  He also stated that the Sheriff wants these proceedings to be public.  He stated that there has been innuendo about the Sheriff dissuading a witness and that the Sheriff did no such thing.  Chairperson Hur asked Mr. Kopp whether there was no dispute that Penal Code section 832.7 should not apply to these proceedings.  Mr. Kopp agreed that there was no dispute.  Mr. Kopp stated he was prepared to respond to the questions posed in the Director’s memo.  He stated that the Sheriff has an interest in accelerating these proceedings.  He also stated that the Sheriff’s position is that the Commission should be required to vote unanimously when making its recommendation to the Board of Supervisors.  He also stated that live testimony would be unavoidable for a few witnesses.  He asked whether the Commission would accept historical facts during the proceedings, such as testimony from a law enforcement officer’s personal experience.  Mr. Kopp also asked whether the Sheriff would be able to bring a motion similar to a demurrer.

Commissioner Liu asked Mr. Kopp to go through the list on page 2 of the Executive Director’s memo.  Mr. Kopp stated that the standard of proof should be beyond a reasonable doubt.  He stated that the guilty plea itself is not sufficient to sustain the charges and the plea has no significance for the Commission.  He repeated that allegations of dissuasion are groundless.  Commissioner Renne stated that he was sympathetic with the concern about timing.

The parties and the Commission then discussed topics to be briefed, page limits for briefs, timing, and a proposed briefing schedule.  The Commissioners agreed that the Commission would make a determination on live testimony and which witnesses it would hear after briefing on legal issues and seeing factual summaries from both parties.  It was agreed that the parties would brief the following issues:

  • What is the applicable standard of proof?
  • On what type of evidence may the Commission rely?
  • Can the Sheriff engage in official misconduct subjecting him to removal from office prior to the time that he held that office?
  • Does “official misconduct” under the Charter require that the alleged misconduct relate to the Sheriff’s duties?
    • If so, does the conduct alleged relate to Mr. Mirkarimi’s duties as Sheriff?
  • Is the Sheriff’s guilty plea to the misdemeanor charge of false imprisonment sufficient to sustain a finding of official misconduct?
  • Must the Ethics Commission act unanimously relating to this matter?
  • Even if all the charges alleged against the Sheriff are true, should the Commission dismiss the matter because the charges do not constitute official misconduct?

The parties stated they were both available to the next scheduled Commission meeting on May 29, 2012.  Chairperson Hur stated that the parties should be prepared to discuss briefs, argue about legal issues, and object to any witnesses.  Chairperson Hur also asked the parties to be prepared to discuss availability of witnesses when the hearing resumed on May 29.  The parties also agreed to service via e-mail and Chairperson Hur stated that service to the Commission should be addressed to Executive Director St. Croix, Deputy Director Ng, and Mr. Emblidge. 

Public Comment:
Patrick Monette-Shaw stated that Larry Bush has an article on his website.  He stated that the Commission has four referrals involving four Supervisors.  He stated that the Commission has refused to schedule a public hearing for eight months.

Ernestine Weiss stated that she was there in the interest of justice.  She stated that Willie Brown had an illegitimate child and Gavin Newsom had an affair.  She stated that she was a victim of abuse in her first marriage and that pinching someone doesn't mean anything. 

Peter Warfield stated that this Commission dismissed 18 cases without having a hearing.  He stated that the Library Commission President violated the Sunshine Ordinance.  He stated that the Commission issued a letter to the Mayor regarding the violation and she was re-elected as President.

Pedro Fernandez stated that an officer who sprayed pepper spray is still being paid, while placed on leave.   He stated that these proceedings were a political witch-hunt and Sheriff Mirkarimi has been targeted only because he is progressive.

David Pilpel stated that the parties have discussed fair procedures.  He asked whether the procedures would be memorialized in writing and available tomorrow at the Commission’s office.  He suggested incorporating the proposed procedures into regulations.  He suggested that the Commission address font size and page formatting.

A member of the public stated that Sheriff Mirkarimi was democratically elected and the Mayor is trying to remove this official illegally. He stated that it was a coup d’état and that it is difficult to see a historical event when you are in the middle of it.  He stated that the commissioners are victims of media lies and asked them to make an honest evaluation.

Barbara Tenguery spoke in support of Sheriff Mirkarimi.  She stated that there were no other adults or witnesses, as Sheriff Mirkarimi and his wife were inside their own home.  She stated that the Commission cannot make decisions without Ms. Lopez’s input.  She asked the Commission to be fair.

A member of the public spoke in support of Sheriff Mirkarimi.  She stated that these proceedings were a witch hunt because the Mayor’s guy did not win.

Francisco DeCosta spoke in support of Sheriff Mirkarimi.  He stated that he had heard nothing about ethics in all of the questions asked of the attorneys.  He stated that the public monitors the Commission.

Franzo King stated that Sheriff Mirkarimi was trying to protect his family and he has been supportive of re-entry of prisoners back into the City.  He stated that there is a great love for a sheriff that has been to jail.

Pastor L. Gavin stated that the 1% who control the media have orchestrated this distraction and assault on democracy.  She stated that the Mayor, District Attorney, and City Attorney have persued Sheriff Mirkarimi.  She stated that Supervisors Mar, Cohen, Chiu, and Weiner have been found in violation of official misconduct and asked for an investigation on why Supervisor Chu asked Park Merced for $50,000 for a cross-walk. 

A member of the public spoke in support of Sheriff Mirkarimi and his family.  He stated that the Commission should dismiss the charge.  He stated that suspension without pay is unfair and cruel.  He stated that the proceedings were politically motivated and that Sheriff Mirkarimi fights for San Francisco values.  He stated that the victim is not saying that she was abused and that Sheriff Mirkarimi has a lot of support and influence in San Francisco. 

Kevin Babcock, District 10 resident, stated that he agreed with the proposed speedy process.  He stated that if Sheriff Mirkarimi broke the law, then he violated official misconduct.
 
Tammy Bryant urged the Commission to dismiss the charges, as there is no evidence that official misconduct occurred.  She stated that she had worked with Sheriff Mirkarimi for seven years and that he fought for programs that would help serve the community.  He stated that he is a gentle soul and that she believes his wife that no domestic violence occurred.  She asked the Commission to honor what she said.  She stated that this case is based on after the fact hearsay statements that were fabricated for a custody battle.

Christina DiaGuardo stated that the matter is not with the Commission because of a whim of the Mayor’s Office.  She stated that the matter was with the Commission because the Sheriff pled guilty to avoid going to a criminal trial.  She requested that the Commission provide for as much live testimony as possible.

A member of the public spoke in support of Sheriff Mirkarimi.  He stated that Mayors have had sex and the Sheriff had difficulty in his family.  He stated that the forces behind this are trying to create something that is not there. 

Maureen Daggett spoke in support of Sheriff Mirkarimi.  She stated that her son is a friend of his and that he is a good family man.  She stated that her son has a Venezuelan wife as well and she knows what those tensions can be with family in Venezuela.

Sharon Newitt stated that the City needs Sheriff Mirkarimi back in his position.  She asked how much the proceedings were costing the City. 

Jose Morales stated that he supported Sheriff Mirkarimi.  He stated that he squeezed his wife’s arm and his intention was not to hurt her.  He stated that he was nervous and he made a little mistake.  He stated that other City officials have betrayed their wives.

Terry Anders spoke in support of Sheriff Mirkarimi.  He stated that character assassination has vilified this person and it was very distasteful.  He asked how the Commission could do that.

Mindy Kenner spoke in support of Sheriff Mirkarimi.  She stated that, as a mother and a woman who has been in long-term relationships, stuff happens.  She stated that things get heated, but it is not misconduct. 

Bob Alavi stated that Mayor Lee suspended Sheriff Mirkarimi on Persian New Years day and it was a racist move.  He stated that the Mayor would not have dared to do it to another race on another New Years Day.  He stated that the Commission could terminate the proceedings now.

Paul Melbostad stated that he served as an Ethics Commissioner for eight years.  He stated that his interest was the integrity of the Commission.  He stated that the same legal standard must be applied in every case of official misconduct.

A member of the public stated that the Police Department is hiring people who destroy evidence.  He stated that the proceedings were a waste of money. 

Larry Haines spoke in support of Sheriff Mirkarimi.  He stated that the proceedings were politically motivated.

Mearle Easton stated that she has been a District 5 resident for 25 years.  She stated that she had been a victim of street violence, but has not had any issues since Sheriff Mirkarimi became Supervisor.  She stated that he needs to get back to work. 

A member of the public spoke in support of Sheriff Mirkarimi and stated that she had worked with him on a number of campaigns.   She stated that she did not understand why he has been suspended without pay.

Rosario Cervantes spoke in support of Sheriff Mirkarimi.

Paula Mohammed spoke in support of Sheriff Mirkarimi.  She stated that he has gone through enough pain and suffering and asked that the Commission allow the Sheriff’s wife to testify. 

Michael Tom spoke in support of Sheriff Mirkarimi.

Beverly Upton stated that family violence is San Francisco’s number one crime.  She stated that the world is watching.

Derrell Hunter spoke in support of Sheriff Mirkarimi.  He stated that these proceedings were a waste of money. 

Chairperson Hur thanked the members of the public for their comments.  He also stated that the Commission was committed to a just and fair process.  He suggested font and page formatting requirements and the parties agreed to his suggestions.

The Chair and the parties continued to discuss the schedule and the parties agreed to the following briefing schedule.

Due DateItem
April 30, 2012Mayor to provide:  memo on legal issues identified above and response to the Sheriff’s letter brief of April 23, 2012; list of fact witnesses to be relied upon by the Mayor along with summary of testimony expected from each witness and whether Mayor seeks to have witness testify live or via declaration Mayor should also address in the memo or in a separate letter brief the following issue raised by the Sheriff:  Is the Sheriff required by law to comply with the Mayor or City Attorney’s investigation into the matter, and what role, if any, does the Ethics Commission have relating to that investigation?
May 7, 2012Mayor to disclose expert or subject matter witnesses to be relied upon by the Mayor along with summary of testimony expected from each witness and whether Mayor seeks to have witness testify live or via declaration Sheriff to provide:  memo on legal issues identified above and any bases for a demurrer or motion to dismiss
May 10, 2012Sheriff to provide:  list of fact witnesses to be relied upon by the Sheriff along with summary of testimony expected from each witness and whether the Sheriff seeks to have witness testify live or via declaration
May 17, 2012Sheriff to provide:  list of expert or subject matter witnesses to be relied upon by the Sheriff along with summary of testimony expected from each witness and whether the Sheriff seeks to have witness testify live or via declaration. Mayor to provide:  reply to the Sheriff’s memo on legal issues
May 25, 2012Both parties to provide stipulated facts and identify rebuttal witnesses along with summary of testimony expected from each rebuttal witness and whether the Mayor or Sheriff seeks to have witness testify live or via declaration
May 29, 2012Ethics Commission meeting where the Commission will determine if further legal arguments or testimony is required and if so, when and in what form.  Both parties should be prepared to discuss factual stipulations and the availability of witnesses as well as objections to witnesses

Motion 12-04-23-1 (Studley/Renne):  Moved, seconded, and passed (5-0) that the Ethics Commission confirm or grant Chairperson Hur the authority to manage the process, including scheduling, during these proceedings.

Public Comment:
David Pilpel stated that he suggested the motion and agreed with it.

Peter Warfield asked that the Commission restate the motion.

III. Adjournment

The meeting was adjourned at 7:25 p.m.

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