Ethics Commission
City and County of San Francisco

Minutes – July 19, 2012

Minutes of the Special Meeting of
The San Francisco Ethics Commission
July 19, 2012
Room 416, City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102

The complete court reporter’s transcript of the July 19, 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 4:58 p.m. 
  
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 S. Kaiser, DCA.

OTHERS PRESENT: Sheriff Ross Mirkarimi; Shepard S. Kopp, counsel for Sheriff Mirkarimi; David Waggoner, counsel for Sheriff Mirkarimi; and other unidentified members of the public.

MATERIALS DISTRIBUTED: 

  • Written Charges of Official Misconduct, filed March 21, 2012.
  • Memorandum from the Office of the City Attorney re: Legal Counsel for Ethics Commission and Board of Supervisors for Official Misconduct Charges, dated April 12, 2012.
  • Staff Memorandum re: Recommendations on hearing on charges of official misconduct, dated April 17, 2012.
  • Letter to the Ethics Commission and City Attorney from David Waggoner and Shepard Kopp, Counsel for Sheriff Mirkarimi, re: Agenda for April 23, 2012 meeting, including correspondence with Deputy City Attorney Keith, dated April 23, 2012.
  • Memorandum from DCA Keith and DCA Kaiser, Counsel for the Mayor, re: Hearing on Charges of Official Misconduct Against Sheriff Ross Mirkarimi, dated April 23, 2012.
  • Press Release – April 24, 2012 – Summary of Actions Taken at April 23, 2012 Meeting.
  • Mayor Lee's Opening Brief on the Issues Specified by the Ethics Commission, dated April 30, 2012.
  • Mayor's Initial List of Fact Witnesses, dated April 30, 2012.
  • Letter to the Ethics Commission from the City Attorney, re: Sheriff Mirkarimi's Duty to Cooperate with the Official Misconduct Investigation and the Role of the Ethics Commission in that Investigation, dated April 30, 2012.
  • Mayor's Initial List of Subject-Matter Expert Witnesses, dated May 7, 2012.
  • Sheriff Ross Mirkarimi's Opening Brief, dated May 7, 2012.
  • Sheriff Ross Mirkarimi's List of Potential Fact Witnesses, dated May 10, 2012.
  • Mayor's Supplemental Disclosure of Subject-Matter Expert Witnesses, dated May 10, 2012.
  • E-mail from David Waggoner to Scott Emblidge, Request for Protective Order, dated May 15, 2012.
  • Request for Protective Order, dated May 15, 2012.
  • E-mail from Sherri Kaiser to Scott Emblidge, Request for Protective Order — Court papers, dated May 15, 2012.
  • Order Granting Third-Party Movant City and County of San Francisco's Motion for Release of Court Record, dated May 15, 2012.
  • Third-Party Movant City and County of San Francisco's Memorandum of Points and Authorities in Support of Motion for Release of Court Record, dated April 23, 2012.
  • Ms. L.'s Opposition to Third Party Movant City and County of San Francisco's Motion for Release of Court Record, dated May 10, 2012.
  • Reply of Third-Party Movant City and County of San Francisco to Ms. L.'s Opposition to Motion for Release of Court Record, dated May 14, 2012.
  • E-mail from Sherri Kaiser to Scott Emblidge, E-mail alerting Paula Canny to Sunshine Requests, dated May 15, 2012.
  • E-mail from Scott Emblidge to David Waggoner, RE: Request for Protective Order, dated May 15, 2012.
  • E-mail from Sherri Kaiser to Scott Emblidge, Re: Request for Protective Order, dated May 15, 2012.
  • E-mail from David Waggoner to Scott Emblidge, Re: Request for Protective Order, dated May 15, 2012.
  • E-mail from Peter Keith to Scott Emblidge, Further information about today's hearing, dated May 15, 2012.
  • E-mail from Scott Emblidge to Attorneys, RE: Request for Protective Order, dated May 15, 2012.
  • E-mail from Sherri Kaiser to Scott Emblidge, Re: Request for Protective Order, dated May 15, 2012.
  • E-mail from David Waggoner to Scott Emblidge, Re: Further information about today's hearing, dated May 15, 2012.
  • E-mail from Scott Emblidge to Attorneys, Re: Request for Protective Order, dated May 15, 2012.
  • Mayor's Response to Sheriff's Request for Protective Order, dated May 16, 2012.
  • E-mail from Peter Keith to Attorneys, Mayor's Response to Request for Protective Order – Date Corrected, dated May 16, 2012.
  • Order Re: Sheriff's Request For Protective Order, dated May 16, 2012.
  • Special Meeting of the Ethics Commission, Monday, April 23, 2012 – 4:30 p.m. Transcript.
  • E-mail from David Waggoner to Scott Emblidge, Sheriff's List of Expert Witnesses, dated May 17, 2012.
  • E-mail from Sherri Kaiser to Attorneys, Re: Mayor's Reply Brief, dated May 18, 2012.
  • Mayor Lee's Reply to Sheriff Mirkarimi's Brief on the Issues Specified by the Ethics Commission at its Meeting of April 23, 2012, dated May 17, 2012.
  • Sheriff Ross Mirkarimi's List of Potential Expert Witnesses, dated May 17, 2012.
  • Memorandum from the Office of the City Attorney re: Charges of Official Misconduct Against Sheriff Mirkarimi Summary of Meet and Confer Efforts; Hearing Procedure & Scheduling, dated May 25, 2012.
  • [Proposed] Order Regarding Procedures for Discovery and Evidentiary Hearing, filed May 25, 2012.
  • Mayor's Rebuttal Witness and Mayor's Objection to Sheriff's Witness, dated May 25, 2012.
  • Ms. L's Request for Protective Order Prohibiting Public Dissemination of Video, dated May 29, 2012.
  • Press Release – May 30, 2012 – Summary of Actions Taken at May 29, 2012 Meeting.
  • Amended Charges of Official Misconduct, dated June 1, 2012.
  • Declaration of Linnette Peralta Haynes, dated June 8, 2012.
  • Declaration of Emin Tekin and Exhibits, dated February 26, 2012.
  • Declaration of Deputy Chief of Staff Paul Henderson, dated June 8, 2012.
  • Deputy Chief of Staff Paul Henderson Exhibits.
  • Declaration of Chief San Francisco Probation Officer Wendy Still, dated June 8, 2012.
  • Chief San Francisco Probation Officer Wendy Still Exhibits.
  • Declaration of Interim San Francisco Sheriff Vicki Hennessy, dated June 8, 2012.
  • Interim San Francisco Sheriff Vicki Hennessy Exhibits.
  • Declaration of SFPD Inspector Richard Daniele and Exhibits, dated June 7, 2012.
  • Declaration of Callie Williams and Exhibits, dated June 6, 2012.
  • Callie Williams Additional Exhibits.
  • Declaration of Mayor Edwin M. Lee, dated June 8, 2012.
  • E-mail from Peter Keith to Scott Emblidge, Re: Scheduling Request, dated June 12, 2012.
  • E-mail from Scott Emblidge to Attorneys, Re: Scheduling Request, dated June 13, 2012.
  • Witness Christine Flores' Sworn Testimony, dated June 13, 2012.
  • Witness Christine Flores' Sworn Testimony Transcripts Part 1, dated March 2, 2012.
  • Witness Christine Flores' Sworn Testimony Transcripts Part 2, dated March 5, 2012.
  • Declaration of Lenilyn De Leon, dated June 11, 2012.
  • Declaration of Sheriff Ross Mirkarimi, dated June 13, 2012.
  • Sheriff Ross Mirkarimi's Objections to Mayor's Fact Witness Declarations, filed June 13, 2012.
  • The Mayor's (1) Objections to Witness Declarations and Requests for Cross-Examination of Declarants; (2) Subpoena Requests, dated June 13, 2012.
  • Letter from City Attorney to John St. Croix, dated June 15, 2012, and Mayor's Exhibit 4 – The Video Statement of Ms. Lopez.
  • Special Meeting of the Ethics Commission, Tuesday, May 29, 2012 – 5:30 p.m. Transcript.
  • E-mail from Scott Emblidge to Attorneys, Re: Request for issuance of subpoena, dated June 14, 2012.
  • Subpoena – Linnette Peralta Haynes, dated June 14, 2012.
  • The Mayor's Objections to the Declaration of Sheriff Ross Mirkarimi and Request for Cross-Examination, dated June 15, 2012.
  • Declaration of Ivory S. Madison, dated June 15, 2012.
  • Ivory S. Madison Exhibits.
  • Declaration of Abraham Mertens and Exhibits, dated June 17, 2012.
  • Declaration of Michael Hennessey, dated June 1, 2012.
  • Letter from City Attorney to Ethics Commission, Re: Charges Against Ross Mirkarimi, Sheriff of the City and County of San Francisco, dated June 18, 2012.
  • Mayor's Brief Regarding Admissibility of Ms. Lopez's January 1 and January 4 Statements About Abuse and Exhibit, dated June 18, 2012
  • Expert Declaration of Nancy K. D. Lemon and Exhibits, dated June 18, 2012.
  • Expert Declaration of San Diego Chief of Police William Lansdowne and Exhibits, dated June 18, 2012.
  • E-mail from Shepard Kopp to Attorneys, Re: Sheriff's Expert Witness Declaration and statement re: cross of Mayor's fact witnesses, dated June 18, 2012.
  • Mayor's List of Additional Exhibits, dated June 20, 2012.
  • Mayor's Exhibit 50.
  • Mayor's Exhibits 78-79.
  • Mayor's Exhibits 80-81.
  • Sheriff's Exhibit, Terence Hallinan v. Committee on Bar Examiners, The State Bar of California.
  • Press Release – June 20, 2012 – Summary of Actions Taken at June 19, 2012 Meeting – AMENDED
  • Mayor's Request for Cross-Examination and Objections to Expert Declaration, dated June 22, 2012.
  • Sheriff Ross Mirkarimi's Objections to Mayor's Expert Witness Declaration, and Request for Cross-Examination, dated June 22, 2012.
  • Mayor's Objection to Sheriff's Exhibit, dated June 25, 2012.
  • Letter from the City Attorney to the Ethics Commission, Re: Charges Against Ross Mirkarimi, Sheriff of the City and County of San Francisco, dated June 26, 2012.
  • Summary of Stipulations and Remaining Disputes Regarding Madison and Mertens Declarations, dated June 26, 2012.
  • Mayor's Exhibits 82 and 83 (Cover Sheet), dated June 26, 2012.
  • Exhibit 82: ATT Records of Ross Mirkarimi and Eliana Lopez December 31, 2011‐January 13, 2012.
  • Exhibit 83: January 4, 2011 Communications Records (From Exhibits 1, 55‐60, 80‐82).
  • Declaration of Eliana Lopez and Exhibits, dated July 2, 2012.
  • Response to Sheriff Mirkarimi's Objection to the Expert Declaration of Nancy Lemon, dated June 27, 2012.
  • Press Release – June 28, 2012 – Interim Rulings Made by Ethics Commission at its June 19, 2012 Meeting.
  • Special Meeting of the Ethics Commission, Tuesday, June 19, 2012 – 5:00 p.m. Transcript.
  • Mayor's Rebuttal Evidence and Exhibits, dated July 10, 2012.
  • Mayor's Evidentiary Objections to Declaration of Eliana Lopez & Request for Cross-Examination, dated July 10, 2012.
  • Sheriff's Request for Issuance of Subpoenas and Exhibits, dated July 11, 2012.
  • Press Release – July 11, 2012 – Summary of Actions Taken at June 28 and 29, 2012 Meetings.
  • Press Release – July 13, 2012 – Interim Rulings Made by Ethics Commission at its June 28 and 29, 2012 Meetings
  • E-mail from City Attorney to Ethics Commission, Re: Mirkarimi Matter: Request for Conference Call Re: Sheriff's Subpoena Request, dated July 11, 2012.
  • Letter from Paula Canny to Attorneys, Re: Testimony of Eliana Lopez, dated July 12, 2012.
  • Special Meeting of the Ethics Commission, Thursday, June 28, 2012 – 5:30 p.m. Transcript.
  • Letter from City Attorney to Ethics Commission, Re: Charges Against Ross Mirkarimi, Sheriff of the City and County of San Francisco, and Exhibits 84 and 87, dated July 11, 2012.
  • Mayor's Opposition to Sheriff's Request for Subpoenas, dated July 17, 2012.
  • Letter from Paula Canny to Attorneys, Re: Eliana Lopez, dated July 17, 2012.
  • E-mail from David Waggoner to Attorneys, Re: Disputed Allegations, dated July 17, 2012.
  • E-mail From Shepard Kopp to Attorneys, Re: Lemon and Lopez declarations, dated July 17, 2012.
  • Sheriff's Summary of Stipulations and Remaining Disputes Regarding Declarations of Nancy Lemon and Eliana Lopez, dated July 17, 2012.
  • E-mail from Sherri Kaiser to Attorneys, Re: Lemon and Lopez declarations, dated July 17, 2012.
  • Special Meeting of the Ethics Commission, Friday, June 29, 2012 – 9:04 a.m. Transcript – Part I.
  • Special Meeting of the Ethics Commission, Friday, June 29, 2012 – 1:05 p.m. Transcript – Part II.
  • Letter from City Attorney to Ethics Commission, Re: Charges Against Ross Mirkarimi, Sheriff of the City and County of San Francisco, and Exhibits, dated July 18, 2012.

II. The Ethics Commission will continue its hearing on charges of official misconduct pending against Sheriff Ross Mirkarimi. 

Deputy City Attorney (“DCA”) Keith resumed questioning Eliana Lopez at 5:02 p.m., continuing from June 18, 2012.

The Commission recessed for 15 minutes at 7:03 p.m.

The Commission reconvened at 7:18 p.m.

Shepard Kopp began his re-direct of Ms. Lopez at 7:21 p.m.

The Commissioners began to question Ms. Lopez at 7:31 p.m.

The Commission recessed for 10 minutes at 8:15 p.m.

The Commission reconvened at 8:25 p.m.

The Commission and parties discussed the admission of testimony and exhibits.  The Commission made the following interim rulings relating to the declarations of Callie Williams, Christine Flores, Nancy K.D. Lemon, and Inspector Mike Becker.  (The Commission’s interim rulings were published on August 2, 2012, and are available on the Ethics Commission’s website.)

Callie Williams¶9 lines 7-11 (“Eliana told me…with her.”) admitted. 
Christine FloresOral objections heard and considered on July 19, 2012.  Objections overruled.  Official transcripts of evidentiary hearing in which Ms. Flores testified and was cross-examined are admitted to the extent that they are relevant to helping the Commission determine the severity of the conduct on December 31, 2011and to the extent that they impeach the Sheriff’s testimony. 
Nancy K.D. Lemon (expert)Objections sustained as to:
¶4, line 27, bullet point vi (“Mr. Mirkarimi … unreformed batterer.”);
¶4, page 3, lines 1-2, bullet point vii (“Sheriff Mirkarimi … domestic violence.”);
¶¶64-75;
¶¶ 82-86;
¶¶ 95-96, 128;
¶135, lines 23-25 (“Ms. Williams reported … safety until 1/4/12. (Id.)”);
¶¶142, 158, 160, 164-183; and
¶¶ 185-190.
The Lemon declaration is otherwise admitted.
Mayor’s Exhibit 75 is excluded.  Mayor’s Exhibits 63-74 are admitted.
Mayor’s Rebuttal Witness – Inspector Mike Becker, SFPDCommission determined that it was not necessary to receive live testimony from Inspector Becker.Mayor’s Exhibits 84 and 86 are admitted; Mayor’s Exhibits 85 and 87 are excluded.

Following the discussion of admissible testimony and exhibits, the Commission and parties discussed the briefing and hearing schedule.

The actions taken by the Commission during the meetings of July 18 and 19, 2012, are summarized as follows:

  • Heard testimony from and asked questions of the following live witnesses:  Linnette Peralta Haynes and Eliana Lopez;
  • With respect to the declarations filed by the Mayor’s and the Sheriff’s witnesses, the Commission preliminarily sustained, modified or overruled various objections by the parties;
  • Preliminarily Determined that it would not be necessary to receive live testimony from the Mayor’s rebuttal witness, Inspector Mike Becker, SFPD;
  • Preliminarily Denied the Sheriff’s request for the issuance of subpoenas for witnesses to impeach the credibility of the Mayor;  
  • Preliminarily approved the following schedule:
Due DateItem
August 6, 2012
  • The parties to exchange findings of fact related to paragraphs 6-8, 19-24, 26, and 30 of the Amended Charges of Official Misconduct.
  • Each party may include up to five additional facts with supporting evidence to prove their case.
August 10, 2012
  • The parties to jointly submit (in pdf and Microsoft Word format) a 3-column chart setting forth the parties’ positions on the proposed findings of fact, with citations to evidence.  A sample chart is attached hereto as Exhibit A.
  • The parties to submit briefs, limited to 25 pages each, which should include each party’s position on the proper construction of Charter section 15.105’s definition of official misconduct.
August 16, 2012Ethics Commission meeting (9 a.m., Room 263 City Hall) 

  • The parties are permitted to make oral closing arguments, which may cover both factual and legal questions at issue and which will be limited to 45 minutes each.  The Mayor shall present first.  The Mayor may elect to reserve some of his 45 minutes for rebuttal.
  • The Commission may then question the parties on the legal or factual issues. 
  • The Commission will then take public comment on all issues relating to this continuing special meeting, including the interim rulings adopted by the Commission during the course of the special meeting
  • The Commission may then deliberate and vote on whether to recommend to the Board of Supervisors that the charges against the Sheriff be sustained.

The hearing was scheduled to continue on Thursday, August 16, 2012 at 9 a.m. in Room 263 City Hall.    

III. Adjournment

The meeting was adjourned at 10:16 p.m.

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