Ethics Commission
City and County of San Francisco

Minutes – May 29, 2012

Minutes of the Special Meeting of
The San Francisco Ethics Commission
May 29, 2012
Room 400, City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102

The complete court reporter’s transcript of the May 29, 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 5:30 p.m.  Chairperson Hur reviewed the proceedings that occurred at the Special Meeting of April 23, 2012.
  
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; Garrett Chatfield, 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; members of the public identified below who spoke during public comment; 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.

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

The attorneys for the Mayor and Sheriff Mirkarimi stated their appearances.  

Chairperson Hur outlined the issues to be discussed and proposed taking each issue individually with the Commissioners discussing the items and the attorneys providing their input. 

The Commissioners discussed the issue regarding the standard of proof required to find Sheriff Mirkarimi committed official misconduct.

Mr. Kopp stated that the highest burden of proof should be applicable to removal proceedings of an elected official.

Ms. Kaiser stated that the removal proceedings are civil in nature and a preponderance of the evidence standard is sufficient.

The Commission concluded that the appropriate standard to apply to the removal proceedings is the preponderance of the evidence standard.

The Commissioners discussed the type of evidence that may be admitted during the removal proceedings, and concluded that evidence would be considered on a case by case basis and may include hearsay evidence.

The Commissioners discussed the relevance of the witnesses both parties listed to be called to give testimony.

After hearing the positions of both parties and discussing each witness, the Ethics Commission concluded that witness testimony would be allowed, as set forth in motion 12-05-29-1 below.

During the discussion regarding witnesses, the Commission recessed at 6:47 p.m. and resumed its discussion at 7:00 p.m.  The Commission recessed a second time during its discussion regarding witnesses at 8:39 p.m. and resumed at 8:50 p.m.

After discussion, the Commission also approved a schedule for the submission of declarations, objections, requests for subpoenas, and other matters, as set forth in motion 12-05-29-1 below.

Both parties discussed discovery related to the removal proceeding.  Chairperson Hur stated that the Commission would not make a ruling on discovery as the matter was before the Superior Court.

Public Comment:

Paulette Brown expressed support for Sheriff Mirkarimi.

Paul Courier expressed support for Sheriff Mirkarimi.

A member of the public expressed support for Sheriff Mirkarimi.

Patrick Monette-Shaw expressed support for Sheriff Mirkarimi.

Barbara Tingary expressed support for Sheriff Mirkarimi.

Pastor Gavin expressed support for Sheriff Mirkarimi.

Tracy Griffin expressed support for Sheriff Mirkarimi.

Vivian Imperiali expressed support for Sheriff Mirkarimi.

Bernie Sheldon expressed support for Sheriff Mirkarimi.

A member of the public expressed support for Sheriff Mirkarimi.

Roland Gordon expressed support for Sheriff Mirkarimi.

A member of the public expressed support for Sheriff Mirkarimi.

Emil Lawrence expressed support for Sheriff Mirkarimi.

A member of the public expressed support for Sheriff Mirkarimi.

Erica McDonald expressed support for Sheriff Mirkarimi.

Maggie Scott expressed support for Sheriff Mirkarimi.

Jo Elias Jackson expressed support for Sheriff Mirkarimi.

Alex Mejor expressed support for Sheriff Mirkarimi.

A member of the public expressed support for Sheriff Mirkarimi.

A member of the public expressed support for Sheriff Mirkarimi.

Silvia Alverez expressed support for Sheriff Mirkarimi.

Pierre Lamont Begeron expressed support for Sheriff Mirkarimi.

Valerie Touly expressed support for Sheriff Mirkarimi.

Richard Stone expressed support for Sheriff Mirkarimi.

A member of the public expressed support for Sheriff Mirkarimi.

Alicia Maria Gomez expressed support for Sheriff Mirkarimi.

Richard Stone expressed support for Sheriff Mirkarimi.

A member of the public expressed support for Sheriff Mirkarimi.

Laurel Nice expressed support for Sheriff Mirkarimi.

Brian Webster expressed support for Sheriff Mirkarimi.

Rosaria Cervantes expressed support for Sheriff Mirkarimi.

Lauire Leiderman expressed support for Sheriff Mirkarimi.

Dennis Moscofy expressed support for Sheriff Mirkarimi.

A member of the public expressed support for Sheriff Mirkarimi.

Eric Brooks expressed support for Sheriff Mirkarimi.

Tracy Brown expressed support for Sheriff Mirkarimi.

A member of the public expressed support for Sheriff Mirkarimi.

Edward Kazofsky expressed support for Sheriff Mirkarimi.

A member of the public expressed support for Sheriff Mirkarimi.

Sherry Zine expressed support for Sheriff Mirkarimi.

Rick Helfman expressed support for Sheriff Mirkarimi.

Joseph Lambert expressed support for Sheriff Mirkarimi.

Rebecca Sulaveta expressed support for Sheriff Mirkarimi.

Tammy Brian expressed support for Sheriff Mirkarimi.

A member of the public expressed support for Sheriff Mirkarimi.

A member of the public expressed support for Sheriff Mirkarimi.

A member of the public expressed support for Sheriff Mirkarimi.

Chairperson Hur thanked the public for its comments.

Commissioner Studley explained that the removal process for charges of official misconduct was a voter approved ballot measure that was adopted into the City Charter and the Ethics Commission must proceed with that process as mandated by the voters.

Motion 12-05-29-1 (Hayon/Renne) Moved, seconded, and passed (5-0) that the Ethics Commission approve the following:

  • Live testimony will be allowed;
  • The Mayor has the burden of demonstrating by a preponderance of the evidence that the Sheriff engaged in official misconduct;
  • The rules of evidence will not be strictly applied.  Some hearsay evidence may be admitted, although hearsay alone will not be permitted to establish a fact.  The Commission may choose to exclude some hearsay evidence on a case by case basis;
  • All direct testimony will come in by declaration, unless the witness is outside of a party’s control and refuses to provide a declaration;
  • Either party, upon request, will be given the opportunity to cross examine witnesses who provide direct testimony via declarations;
  • If a witness provides direct testimony via declaration but does not appear, upon request, for cross-examination, the Commission will give that witness’s declaration the weight it deems appropriate;
  • Upon receipt of declarations and objections, the Commission will decide whether declarations (or parts thereof) will be admitted;
  • A majority vote by the members of the Commission is sufficient for the Commission to send its recommendation(s) to the Board of Supervisors.
  • The following schedule for the submission of declarations, objections, requests for subpoenas, and other matters:
    Due DateItem
    June 1, 2012The Mayor to provide a bill of particulars regarding the charges of official misconduct against the Sheriff.
    June 8, 2012The parties to exchange witness declarations for proposed direct testimony. 
    June 13, 2012
    • The parties to submit any objections to the witness declarations, along with a list of the declarants they would like to cross examine.  The objections must specify each paragraph to which the party objects and the basis for the objection.
    • The parties to identify witnesses whom they want the Commission to subpoena, the date on which the witness is expected to testify, and the reasons why a subpoena should issue. 
    June 15, 2012The parties to submit their expert declarations.
    June 19, 2012Start of Ethics Commission evidentiary hearing:  the Commission will address objections to evidence.  The Mayor should be prepared to call on at least two witnesses, although it is possible that they will not testify on this date
    June 20, 2012The parties to submit any objections to the declarations of the expert witnesses, along with a list of the declarants they would like to cross examine.  The objections must specify each paragraph to which the party objects and the basis for the objection.
    June 29, 2012Further Commission hearing.  The Commission will inform the parties of other dates between June 20 – 29 when hearings can be held.
  • The following with respect to witnesses:
    • The Mayor’s list: 
      • excluded fact witnesses: either Inspector Becker, SFPD or Inspector Daniele, SFPD; Captain Kathy Gorwood, SFSD;
      • excluded expert witnesses:  Chief Wendy Still; Assistant District Attorney Elizabeth Aguilar Tarchi; Beverly Upton; Hamish Sinclair; and two of the following: Michael Gennaco, Chief William M. Lansdowne, or Sheriff Laurie Smith;
      • stipulated withdrawal: the parties to stipulate regarding facts that form the basis of Jan Dempsey’s testimony;
      • withdrawn witnesses: Lt. Michele Jean; Inspector John Keane, SFPD; and former Sheriff Michael Hennessey;
      • witnesses permitted to submit declarations for consideration: Inspector Becker or Inspector Daniele; Christina Flores; Linnette Peralta Haynes; Paul Henderson; Vicki Hennessey; Mayor Edwin M. Lee; Eliana Lopez; Ivory Madison; Abraham Mertens; Sheriff Ross Mirkarimi; Chief Wendy Still; Callie Williams;
      • expert witnesses permitted to submit declarations for consideration: Nancy K.D. Lemon; and one of the following: Michael Gennaco, Chief William M. Lansdowne, or Sheriff Laurie Smith.
    • The Sheriff’s list:
      • excluded fact witnesses: Former Mayor Art Agnos; Former San Francisco Chronicle Editor Phil Bronstein;
      • withdrawn witnesses: Inspector John Keane; Former San Francisco Bureau Chief and New York Times Columnist Evelyn Nieves; Attorney Lidia Stiglich; Callie Williams; and Probation Officer Andrea Wright;
      • witnesses permitted to subject declarations for consideration: Leni De Leon; Linnette Peralta Haynes; Mayor Edwin M. Lee; Eliana Lopez; Ivory Madison; Abraham Mertens; Nancy Miller; Sheriff Ross Mirkarimi; and Emen Tekin
      • expert witness permitted to submit declaration for consideration: former Sheriff Michael Hennessey.

Chairperson Hur stated that the Ethics Commission’s next special meeting continuing this matter will be held on Tuesday, June 19, 2012 at 5:00 p.m. in Room 263 City Hall.

III. Adjournment

Motion 12-05-29-2 (Studley/Liu) Moved, seconded, and passed (5-0) that the Ethics Commission adjourn.

The meeting was adjourned at 11:28 p.m.

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