Ethics Commission
City and County of San Francisco

Minutes – June 28, 2012

Minutes of the Special Meeting of
The San Francisco Ethics Commission
June 28, 2012
Room 263, City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102

The complete court reporter’s transcript of the June 28, 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 5:32 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; Paula Canny, counsel for Eliana Lopez; 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. (33.9 mb)
  • 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 June 26, 2012.
  • Response to Sheriff Mirkarimi's Objection to the Expert Declaration of Nancy Lemon, dated June 27, 2012.

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

Chairperson Hur outlined the issues to be discussed prior to hearing testimony from the Sheriff including whether Ms. Lopez would appear in person or by video conference.  After hearing from both parties, the Commission made interim rulings with respect to the declarations filed by the Mayor’s and the Sheriff’s witnesses.  The Commission sustained, modified or overruled various objections by the parties.

The Commission recessed at 7:39 p.m. and resumed its discussion at 7:55 p.m.  The Commission made the following interim rulings during the June 28, 2012 meeting (“Tab” refers to the location of the document in the Ethics Commission’s binders.):

TabMayor’s WitnessesDeclarationExhibit(s)
31

SFPD Inspector Richard Daniele

Commission overruled objections to ¶¶27-31.  ¶¶27-31 are admitted.

Mayor’s Exhibit 4 is admitted. Because ¶31 is admitted, Mayor’s Exhibit 7 is admitted.

49

Ivory Madison

Objections sustained as to
¶23, p. 10, lines 4-6 (“She seemed… the police”); lines 6-7 (“She also…and Theo”), ¶24, lines 11-14 (“Throughout…for Sheriff”), ¶26, p.10, line 27 through p. 11, line 8 (“When I read…several days”), ¶29, line 5 (“who are…like your husband”) (replacing language with an ellipsis),  ¶33, p. 13, line 1 “Eliana does…quickly, so”), ¶35, lines 7-9 (“, which I assumed…unlikely to me.”), ¶36, ¶37, p. 14, lines 21-22 (“Eliana understood…her wishes.”), ¶40, p. 17, lines 3-5 (“and it was clear…she was referring to,”), ¶43, page 18, lines 1-2 (“and it was obvious…against Ross.”), ¶44, ¶45, ¶46, except lines 9-14 (“but due primarily…to defend him),  ¶47, lines 2-5 (“I find…to be absurd.”), ¶49, except p. 21, lines 20-22(“my work,…company,”; lines 26-28 “”It also had … untrue, but”; p. 22, line 1 (“Eliana”), lines 1-6 (“actively encouraged me…abuse and threat.”).
¶¶19-49 otherwise admitted.

Mayor’s Exhibits 48-60 are admitted; Mayor’s Exhibit 61 is excluded.

50

Abraham Mertens

 

Objections sustained as to
¶¶6-9; ¶13, line 17 (“Since I was …with Theo.”; ¶20, lines 7-8 (“, and I have…Callie either.); ¶¶21-28.
¶¶1-20 otherwise admitted.

Mayor’s Exhibit 62 is excluded.

55

Nancy K.D. Lemon (expert)

The parties to meet and confer regarding the Sheriff’s objections and provide stipulation by July 17, 2012.

 

56

San Diego Chief of Police William Lansdowne (expert)

No objections submitted.  Declaration is admitted.

Mayor’s Exhibits 76 and 77 are admitted.

TabMayor’s Additional ExhibitsObjection(s) Filed 
59Exhibits 78-79NoneAdmitted
60Exhibits 80-81NoneAdmitted
67Exhibits 82-83NoneAdmitted
TabSheriff’s WitnessesDeclarationExhibit(s)
52Former Sheriff Michael Hennessey (expert)Objections sustained at to page 2, first and second full paragraphs (“I am aware…the office.”)  Remainder of declaration is admitted.None.
68Eliana LopezThe Mayor’s objections, if any, are due July 10, 2012. 
TabSheriff’s Additional ExhibitsObjection(s) Filed 
61Hallinan v. State Bar of California, 65 Cal.2d 447 (1966)The Mayor filed objections on June 25, 2012, at Tab 64.Excluded

Sheriff Mirkarimi was sworn in and DCA Keith began his cross-examination of the Sheriff at 8:05 p.m.   Sheriff Mirkarimi was excused at 9:00 p.m. to resume his testimony on June 29, 2012. 

After discussion with the parties, the Commission agreed to recess until the next day.  Chairperson Hur outlined the general timeline for testimony on Friday, June 29.  DCA Keith estimated he would need approximately one hour to finish questioning the Sheriff.

Interim Motion 12-06-28-1 (Hayon/Renne) Moved, seconded, and passed (5-0) that the Ethics Commission preliminarily adopt the interim decisions and schedule discussed during the meeting as follows:

  • 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;
  • With respect to the video of Eliana Lopez, the Commission preliminarily admitted the video;
  • Heard testimony from and asked questions of the following live witnesses:  Sheriff Ross Mirkarimi;
  • Approved the following schedule:
Due DateItem
July 2, 2012
  • Eliana Lopez to resubmit and re-sign her declaration to attest that the declaration is submitted under penalty of perjury under the laws of the State of California
July 10, 2012
  • The Mayor to provide objections to the declaration of Eliana Lopez
July 17, 2012
  • The Sheriff to respond to objections to the declaration of Eliana Lopez
  • The parties, having met and conferred, to provide stipulation regarding the expert declaration of Nancy K.D. Lemon
July 18, 2012Ethics Commission meeting (5 p.m., Room 416 City Hall):

  • Linnette Peralta Haynes is expected to provide live testimony
  • Eliana Lopez is expected to provide live testimony or appear remotely
  • Former Sheriff Michael Hennessey may provide live testimony
July 19, 2012Ethics Commission meeting (5 p.m., Room 416 City Hall):

  • Former Sheriff Michael Hennessey may provide live testimony
  • The Mayor’s rebuttal witness(es) may provide live testimony

Chairperson Hur announced that the Ethics would continue this matter on Friday, June 29, 2012 at 9:00 a.m. in Room 400 City Hall.

III. Adjournment.

The meeting was adjourned at 9:04 p.m.

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