Brown says Lee shouldn't have taken Mirkarimi's pay away

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Luke Thomas/Fog City Journal

As Mayor Ed Lee continues to duck questions about why he suspended Sheriff Ross Mirkarimi without pay or due process, even former Mayor Willie Brown – who helped elevate Lee into Room 200 – is second-guessing the decision and its legality.

In his Willie's World column in Sunday's San Francisco Chronicle, entitled “Ross Mirkarimi needs cash in struggle to keep his job,” Brown wrote, “And on the salary point, I agree with Mirkarimi: He should not be suspended without pay. He should continue to get paid unless and until he ultimately is found guilty of misconduct by the Board of Supervisors.”

The issue isn't just one of fairness or of Lee trying to coerce Mirkarimi into resigning to avoid city hearings that will determine whether grabbing his wife's arm during a New Year's Eve conflict constitutes official misconduct, as Lee charges. It's also a specific legal issue, particularly to lawyers like Brown.

Mirkarimi's attorney, David Waggoner, said it's not surprising to see Brown publicly undercutting the mayor on this issue. “He's simply stating what the applicable law is on the subject,” Waggoner told us. In this case, it was the Supreme Court, hearing the case Skelly v. State Personnel Board in 1975, that said an executive can't just unilaterally take away someone's livelihood.

“If you're going to fire public employees, you have to give them notice, you have to let them respond, you need to observe due process,” Waggoner said.

That's one of three causes of action that Superior Court Judge Harold Kahn will consider in a hearing set for April 18 at 9:30 am, where Mirkarimi is asking the courts to reinstate him and restore his salary pending hearings before the Ethics Commission and Board of Supervisors that could take months.

Given the pressure being applied by anti-domestic violence groups and many mainstream media voices, Lee may have felt like he had to remove Mirkarimi and that he could just blame supervisors or the process if it didn't work. But if the courts find Lee acted illegally while attempting to put supervisors in such an untenable position, it could be a serious blow to Lee's reputation and governing authority.

UPDATE 5 PM: I also placed a call on the issue to former Mayor Art Agnos, who just back to me and he agreed that Lee acted in a way that was unfair and probably illegal. "I think it's heavy-handed," said Agnos, who has been supporting Mirkarimi through the ordeal.

Agnos noted that former Sheriff Richard Hongisto served several days in jail for contempt of court for refusing to carry out the evictions of International Hotel tenants, and he never had his pay docked or faced official misconduct charges. "And here, we see the sheriff being charged with something that occurred before he even took office, and it's a low-grade misdemeanor that he accepted a plea deal on."

According to Agnos, Mirkarimi told him that during his brief conversation with the mayor, he offered to tell his side of the story and have Lee talk to his wife, Eliana Lopez, as well, but the mayor wasn't interested. "When you're the mayor, you like to hear both sides before making a decision," Agnos said. "But Lee wasn't interested."

Comments

that you are both wrong. In fact, it galls me when people get sent home on full pay. They've done something bad and so we reward them with doing no work but still paying them?

And of course we have to pay the new sheriff too.

Too bad if Ross doesn't have cash. Maybe he should have thought of that before he bruised and abused his wife. If he chooses to fritter away his family's money trying to defend the indefensible, then he can. Just not on the public dime.

Posted by Guest on Apr. 03, 2012 @ 3:11 pm

But in the end he will get all the back pay.

Posted by Guest on Apr. 03, 2012 @ 7:34 pm

is only whether he should be paid while suspended. Most voters think he should not be paid, and I don't see the Supes wanting to defy the voters in a big election year.

Posted by Guest on Apr. 04, 2012 @ 5:46 am

Whether you like or hate Ross M, that's not the issue. The law is the issue and according to Steve's piece, the law is on Ross's side. If you still think he should not get paid before the supes rule, then you don't believe in following the law or think the laws matter. In which case, I recommend you get to your paradise called Somalia - laws aren't in place there either.

Posted by Guest on Apr. 04, 2012 @ 1:11 am

think that Lee did not consult with the city attorney before acting?

Posted by Guest on Apr. 04, 2012 @ 5:47 am

I never said Steven's a lawyer, but he quoted Willie Brown, who is a lawyer and has been one for decades. It's pretty straight forward as Willie says - if a person's dismissal hasn't been confirmed by the Ethics Commission and 9 supes, then he or she hasn't been dismissed officially. That's why any mayor can't just dismiss whoever he or she wants to - that's why the other two bodies (EC and supes) have to confirm it. Until they do, then he should be getting paid.

I'll give Willie credit for stating this. Even though what he says makes complete sense, it still took guts to say it because he must have known saying anything in support of RM would probably upset Ed Lee and some of the Chron editorial writers (or those telling them what to write). And here's the important part: he only said it because it was obviously true so he felt okay saying it.

Do I think Ed Lee consulted with an attorney before doing any thing he's done? Probably but that's not the question to ask. The pertinent question is what did he think would work politically. Ed Lee's not going to pay any price in any way if RM ultimately keeps his job or keeps his salary until the EC and supes rule so what an attorney says to Ed Lee concerning the meaning of letter of the law is probably not the most important issue to Ed Lee. Ed Lee's a politician, not a judge - just remember that and you'll understand his actions.

Posted by Guest on Apr. 04, 2012 @ 10:00 pm

City Attorney whose job it is to be the definitive source of such knowledge.

Given Slick Willie's various dodges, you'd expect him to support full pay for disgraced politicians since he came fairly close to that himself a few times.

Posted by Guest on Apr. 05, 2012 @ 6:09 am

@guest you say: " Maybe he should have thought of that before he bruised and abused his wife."

His wife does not agree with you, and San Francisco owe Eliana Lopez an apology for destroying her family. Thanks.

Posted by jccourt on Apr. 04, 2012 @ 6:00 am

her. She made that statement to her neighbor and was recorded saying it on tape.

The fact that she later clammed up about it when she realsied Ross would lose his job and she would lose her gravy train doesn't change anything.

Posted by Guest on Apr. 04, 2012 @ 7:06 am

She has repeatedly and consistently denied that there was any abuse on Ross's part. The tape was made for the purpose of getting custody Theo. I once worked as a legal assistant for a divorce lawyer. And, believe me, people will resort to lying when it comes to the thought of losing their child in a battle over custody. They do it as a matter of course.

Look, Eliana has even asked for immunity before telling her side of the story. That should tell you dolts something. Unfortunately, your bias against Ross is keeping you from considering any other angle. Do us all a favor. Don't ever get a job as a judge, journalist, coach or any kind of arbitrater. And for God's sake, don't volunteer to sit on a jury. You are eminently unqualified.

Posted by Guest on Apr. 04, 2012 @ 5:46 pm

No, you fool, YOU"RE WRONG. And when Ross gets all his pay back--it will indeed be payback time. I can't wait until he is exonerated and haters like you stew in your ugly, filthy, vile juices.

Posted by Guest on Apr. 11, 2012 @ 2:21 pm

The rule is clear - Mirkarimi should have his pay restored and should be paid back-pay to the time he was suspended. Lee can certainly suspend Mirkarimi but he can't take away his pay while doing so.

Posted by Troll II on Apr. 03, 2012 @ 3:14 pm

because of his own stupid fault.

Moreover, why should the city pay for two chief sheriffs just because the first one was an ass?

Lee got this right and 70% of voters agree.

Posted by Guest on Apr. 03, 2012 @ 5:06 pm

He can't be deprived of his salary without the proper ethics and then BOS hearing which results in removal. I am not pro-Ross, I think he should be recalled. But until he is we're no better than him if we don't follow the law in how his case is handled. Ross may call for the destruction of evidence and threaten to starve his wife - but we're different than Ross.

Posted by Troll II on Apr. 03, 2012 @ 5:43 pm

pay for a replacement, then - no pay.

Ross should have thought of all this before he screwed up.

Posted by Guest on Apr. 03, 2012 @ 6:48 pm

I don't get it?! One day the Guardian and posters are bashing Willie until...he states something that benefits Mirkarimi...all of a sudden...hey that Willie Brown's alright!
Anti-Ross (Chron,Examiner...etc...) Pro-Ross(SFBG)
The real question during this debacle...Where are the Pro-Newsworthy News?!

Posted by GuestOfNoOne on Apr. 03, 2012 @ 6:30 pm

What were you thinking? It's always rank, self-serving opportunism with Tim and Steven.

Posted by Guest on Apr. 03, 2012 @ 6:53 pm

Like him politically or not (I don't) - fact is Willie is a lawyer who has represented ppl in court. He knows what the law is and the law is pretty clear. I believe he's generally honest in his Chron articles - because he's putting it in writing. When Willie was being shady as mayor of SF, he made sure nothing was ever put in writing.

For you to attack Steven and the SFBG when you're blatantly wrong on the law - which makes you supportive of breaking the law - is particularly rich.

Steven (and Willie) got it right. You didn't.

Posted by Guest on Apr. 04, 2012 @ 1:18 am

The City Attorney says he is wrong.

Posted by Guest on Apr. 04, 2012 @ 9:36 am

No, we've seen nothing from the City Attorney's Office supporting Mirkarimi's suspension without pay. I've asked Lee to release the advice memo that might have opined on this issue, and he's refused.

Posted by steven on Apr. 04, 2012 @ 11:47 am

acting as that is SOP in cases like this.

Lee obviously has no incentive to reveal the basis of his legal authority here as that is currently sub judice.

Posted by Guest on Apr. 04, 2012 @ 12:32 pm

Do you think that the City Attorney told the Mayor that the law did not support him suspending Mirkarimi without pay but he did it anyway? Lee is a lawyer himself and doesn't seem like a complete idiot.

Posted by Troll on Apr. 08, 2012 @ 10:54 pm

I realize in the public employee mind set production and pay have nothing to do with each other but the guy is doing nothing. He shouldn't get paid.

Posted by Guest on Apr. 03, 2012 @ 8:57 pm

Judge Kahn is a good judge. He'll reach the correct result.

That said, this article is quite biased. The lead sentence asserts that RM was suspended without due process. He was suspended pursuant to the procedure delineated in the City charter. Seems to me that the due process plays out in the Ethics Commission hearing and the Board of Supervisors hearing. He gets two hearings.

And having a breaking update regarding a call with Art Agnos seems silly. Agnos has been RM's biggest supporter. RM is living in Agnos' house.

Posted by The Commish on Apr. 03, 2012 @ 9:00 pm

Smacking around your wife because one is "arrogant" and has "anger management issues". Let's go back to the 19th century

Posted by Guest on Apr. 03, 2012 @ 9:14 pm

there is no allegation of "smacking", or hitting, or beating, or bloodying, or breaking...just a bicep pinch created by two people..one grabbing an arm..the other pulling away...in a heated argument involving the safety of their child in a foreign country.

Posted by GuestChristine Craft on Apr. 04, 2012 @ 7:54 am

Continues to ignore the actual facts- that Ross plead guilty to unlawfully holding his wife against her will. To me that is worse than a "bicep pinch".

Of course, I also think it is pathetic to try and justify abuse like you are doing, but hey, free speech.

Posted by DNative on Apr. 04, 2012 @ 8:08 am

somehow miraculously become the truth.

Eliana did not bruise herself and it is insulting for Craft to suggest otherwise,.

Posted by Guest on Apr. 04, 2012 @ 9:38 am

Ross grasped hold of her arm as she was unbuckling their son from his car seat and Eliana yanked her arm away. So her reaction (the yanking) is what led to the bruising of her arm. And that's what Eliana stated in the court documents she submitted. Look, EL asked for immunity before telling her side of the story. I suppose it never occurred to you to ask why. Or if there is more to this case than meets the eye. I know, it doesn't fit with your desire to condemn a man before knowing all the facts. Yes, he copped a plea, but was there ever any way for him to get a fair trial, considering the vigilante mind set of folks like yourself? Ask yourself honestly.

Posted by Guest on Apr. 04, 2012 @ 6:12 pm

Not "yanking." This excuse must stop now. You do not get a bruise from "yanking." If anything you would get a torn rotator cuff or an injured muscle or tendon. Bruising is caused by pressure - that's it.

Posted by Troll II on Apr. 04, 2012 @ 6:43 pm

And don't they have laws around this?

Posted by matlock on Apr. 04, 2012 @ 8:11 am

Thank you, Christine for saying it. A bicep pinch between two people, one grabbing, one pulling away. When she said 'don't touch me,' Ross released instantly. He's not an abuser, he's an emotional man who felt so humiliated at a mark on his wife, he could not see straight, he could not talk straight. Everybody ballyhoo's, 'why didn't he plea deal early on...??' R had zero opportunity to plea early. Dragging him in the mud was Kamala's plan all along. Yes, it is Kamala, but the public doesn't buy it. The public's ignorance about the D.A.'s inner workings is legendary -- the D.A. didn't give Ross or his attorney the time of day -- the D.A. pursued Eliana hot and heavy, but R+E? or Just R? The D.A. kicked hard. What could R possibly say to the media when 'a hand on her arm in an argument' is a chargeable offense? Most are too stupid to notice that R was creamed from the start. Hundreds of thousands of laws on the books, which get enforced, which don't. Easy to destroy a guy the government gets in the crosshairs. I watched every move the D.A. made to block Ross, and while Eliana entitled to 'privilege' for her attorney work-product, the D.A. said it's 'suppression of evidence' and the label stuck immediately. Come on!! Persuade me this isn't a railroad custom made for the guy. Face it, folks, Ross wasn't supposed to win the Sheriff's race. Did he piss off people? Yeah. Did he make a mistake with his wife? Yeah. But take away his political career, income, family life, future with his wife and child -- for a pinch on the arm? The spectacle is hungry lions and gladiators and is sick beyond words. The D.V. people call themselves 'evil' for destroying families but they really believe in the "cause" -- who in their right minds trusts the process now?

Posted by Guest on Apr. 05, 2012 @ 7:56 pm

Mirkarimi shouldn't have become violent with his wife in the first place, or none of this would have happened.

Posted by Guest on Apr. 04, 2012 @ 3:24 am

the taxpayer should pay Mirk to sit at home and fight the city on our dime.

All while we have to pay his replacement for doing his job.

The guy should simply go away.

Posted by Guest on Apr. 04, 2012 @ 5:52 am

But, I think it is a fair point about the pay. Though the slanted lead sentence in this article is pretty pathetic, even for this rag.

"As Mayor Ed Lee continues to duck questions about why he suspended Sheriff Ross Mirkarimi without pay or due process..."

Last I checked- the due process is a hearing before the Ethics Commission and then the BOS. Honestly Steven, I know that you are really sad that the beloved Ross screwed up and landed himself in hot water, but this reporting is pretty pathetic.

Posted by DNative on Apr. 04, 2012 @ 8:06 am

If the city's process finds Ross guilty of official misconduct and removes him, fine, that's due process. But suspending an elected official without pay because he didn't heed your demand that he resign is a different issue, and I do believe the mayor has an obligation to explain why he did so. And because he has refused to do so, I stand by my lede. There's nothing wrong with journalists expecting accountability from our elected officials. Lee has a double-standard of public accountability.

Posted by steven on Apr. 04, 2012 @ 11:54 am

hearing the same outrage and righteous indignation from you?

Of course not, and so you are dressing up partisan bias as genuine concern. And that is my concern.

Posted by Guest on Apr. 04, 2012 @ 12:36 pm

So your argument is some speculation based on nothing? Sounds like it. If you're gonna make the argument that Steven would be in favor of a person with a different political outlook than his being prosecuted unfairly, THEN IT'S UP TO YOU TO BACK IT UP because now you're going way out on a limb to go there (unless you can back it up).

If you can't back it up with ANY evidence or indication that Steven's done such a thing, then you're reduced to hitting Steven for standing up to a possible injustice (in his opinion) for someone with his own political POV - as if because Steven has a political POV close to Ross's that that's supposed to make Steven go mute in the face of unjustified actions by ppl in govt who may be abusing their (temporary) power.

An abuse of power kinda like Rec & Park General Mgr Phil Ginsberg abusing his temporary power as head of R&P to push for radically changing GG Park by pushing for the removal of 7 acres of LIVING grass at Beach Chalet soccer fields to be replaced with 7 acres of DEAD PLASTIC and over 300 TONS of black, sooty, oil-based tire particles with lead and cadmium components & also pushing to put 60 feet high stadium lights there and have them on every night until 11 pm - even though all these things - the DEAD plastic, the 300 TONS of toxic tire particles, and the stadium lights are completely and blatantly against the text and spirit of the GG Park Master Plan - a master plan that was democratically created with lots of citizen input and took 10 years to complete and requires Phil Ginsberg and all future R&P General Mgrs to follow it (even if Donald Fisher's 3 sons who head City Fields Foundation don't like it). These people get in govt and think they are kings or something and don't have to follow rules and laws.

Posted by Guest on Apr. 05, 2012 @ 12:15 am

I am sure that if it were Greg Suhr suspended without pay you would have the same righteous indignation. Please.

Lee followed the City Charter in suspending him. He actually made a statement as to why he did the suspension. I actually agree with you on the pay issue, but totally think he needs to go and that suspending him was the right thing to do. It seems you just don't agree with the reasons why. Too bad. In case you missed it here is a link to a video of Lee's statement. I would also think that as a "journalist" you would be able to find a copy of the actual charges served on Ross.

http://blogs.kqed.org/newsfix/2012/03/21/video-watch-ross-mirkarimis-ed-...

Posted by DNative on Apr. 04, 2012 @ 12:55 pm

I attended Lee's press conference and have analyzed those written charges (http://www.sfbg.com/politics/2012/03/21/lees-charges-against-mirkarimi-l...). Neither addresses the issue of suspension without pay, and Lee refused to take any questions on the issue. If you agree on the pay question, I'm not sure what you're taking issue with. Whether Ross committed official misconduct is at best a wobbler, a question that could go either way, which is why taking away this family's livelihood seems coercive and unfair. For all of you who believe he's guilty and should be removed, why deny him the right to properly defend himself if you're so confident in your position? And that question goes double for Lee, who seems to be trying to force Mirkarimi out precisely because he lacks confidence in his position.

Posted by steven on Apr. 05, 2012 @ 10:29 am

Yep. And notice the attacks on anyone who find fault with this charade involve imputed hypocrisy -- without proof -- or other accusations of bias. Nobody -- but nobody -- has explained how the city charter allows Lee to stop Mirkarimi's paychecks from being issued.

Anyone?

Posted by lillipublicans on Apr. 05, 2012 @ 11:18 am

Kids, you got played by Willie. He's doing a great job painting you and your progressive pals in a corner. You're so desperate to defend the last citywide progressive ever, you can't see it. Fools!

That SF Weekly fake editorial saying you guys defend wife beating if you're a progressive really is coming true. Bizarre!

Posted by You Got Played on Apr. 04, 2012 @ 5:38 pm

Unlike you, Willie wasn't afraid to put his real name on that op-ed. So it's an opinion he stands by, and he's putting his rep on the line to say this (RM is pretty unpopular right now). And by the way, Willie's no progressive.

Posted by Guest on Apr. 04, 2012 @ 6:20 pm

Oh the irony.

anyone who thinks Willie is on Ross's side is smoking some bad dope. who do you think is calling the shots at Room 200? Progressives are so easily manipulated.

I'll be laughing when Ross is deposed, you end up with Chris Cunnie or someone else instead, and your prog supes are stuck with the ross bruises on their electoral arms come election time. A pity Aaron isn't still with us.

Posted by Fake Aaron on Apr. 04, 2012 @ 8:50 pm

The commenter you're replying to said Willie put his name on what he wrote so everyone knew who was the author of those words. Thus Willie is putting his personal and legal rep on the line by doing so. He'd only do that because he believes what he wrote is 100% true (especially when he knows it will probably piss of his friend Ed Lee).

It doesn't mean he's "on Ross's side" - it means that he, based on his decades of being a lawyer, thinks it's quite clear that until the Ethics Comm and BOS rules against Ross, that there's no justification for taking away his pay.

The whole point of having the EC and BOS confirm Lee's actions are to protect against one person having too much power. Until those bodies confirm Lee's actions, Ross should have his job and pay.

Problem with you is you just don't like laws when they go against your wishes to unjustly remove someone you don't like so then you have to do funny things to argue your case like changing the subject to who's Willie pulling for when that was not the subject of Steven or Willie's piece.

But no doubt you'll keep up your offensive of arguing like true Republicans only know how - change the subject, call your opponents names, employ distortions ("if you think he's on Ross's side") etc - and stay clear of plain logic.

Posted by Guest on Apr. 05, 2012 @ 12:30 am

Over the years I have always been curious when I heard news reports that an employee of the City of SF was suspended without pay "pending an investigation." Government employees, unless they serve at will, generally have a "property interest" in their job and since their employer is the government, must be afforded due process. I believe withholding Mirkarimi's pay before he is afforded due process would be an unlawful "taking" by the City. That's why you always see government employees placed on "administrative leave with pay" while their case is investigated and they are served with a finding and disciplinary recommendation. Then the Skelly Case Mayor Brown Cited affords the employee the right to appeal the discipline. I may be missing something and I am not familiar with the SF Charter, but that's CA law as I know it. I assume Mayor Lee's actions were taken under the counsel of the City Attorney, so we'll see in court. In any case the Mayor was well with in his right to suspend Mirkarimi from office.

As for Steve's assertion that a court's reversal "could be a serious blow to Lee's reputation and governing authority," I think that's a bit of a reach given mainstream public sentiment right now.

To Art Agnos: Drunk in Public and Disturbing the Peace are "low-grade" misdemeanors, False Imprisonment on the other hand, is a "wobbler," meaning it can be charged as a misdemeanor or felony, the latter involving a degree of force or menace. There's nothing low-level about it. And while the offense may have taken place before he took office, Mirkarimi pleaded guilty to false imprisonment while seated in office as a sworn law-enforcement executive.

Posted by Retired Cop on Apr. 04, 2012 @ 7:36 pm

Good post. You know what you're talking about. I am not sure that Skelly rights extend to this setting, however. It's a unique situation. RM was head of his department and is an elected official rather than a rank and file public employee. On the other hand, he was removed despite the fact that he was the head. Then, on the third hand, his removal was pursuant to a city charter. It's unclear to me how the interplay of the city charter, his senior position, and Skelly plays out.

Posted by The Commish on Apr. 04, 2012 @ 8:52 pm

I don't think it matters whether RM was the department head because the principle is the same: he's a city employee who has a property interest in his salary, and government can't take it away without due process. That was the precedent in Skelly. The fact that RM was elected by voters would seem to only put a stronger burden of proof on the mayor for removing someone who is both a city employee and a representative of the voters who put him there. That's why recall is the usual method of removing electeds, and why this is such a troubling precedent. The official misconduct language written in '95 is very broad (probably unconstitutionally so, but we'll find out soon what the judge says about that), giving the mayor almost unlimited authority to suspend without pay any elected official, for whatever moralistic reason the mayor wants to concoct. Close vote coming up at the Board of Supervisors, why not tip the balance by suspending a couple supervisors? Maybe that sounds far-fetched to some people, but we're supposed to live under a system of rules that don't allow these sorts of abuses of power.

Posted by steven on Apr. 05, 2012 @ 10:43 am

Yes. It's the modus operandi of the anti-Mirkarimi cohort to lie and mirror the hypocrisy that they falsely impute to others. Hopeless it is to point out to them that they've been exposed. It is cognitive dissonance at work.

My question for the day: why are San Francisco's "conservatives" called "moderates?" -- and why do so many "moderates" get branded as "progressives?" Is San Francisco really so "left wing?" I think not.

Posted by lillipublicans on Apr. 05, 2012 @ 11:23 am

(pled guilty)...why should taxpayers have to pay for two Sheriffs concurrently. Why should taxpayers be puished here?

Posted by Guest on Apr. 04, 2012 @ 11:42 pm