Supervisors advised against Mirkarimi recusals, essentially removing their gags

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It's looking increasingly unlikely that any members of the Board of Supervisors will be recused from next week's big vote on whether to sustain the official misconduct charges against suspended Sheriff Ross Mirkarimi, particularly given an advice letter written today by attorney Scott Emblidge, who is advising the board.

Mirkarimi and his attorneys were hoping some supervisors would admit discussing the case with Mayor Ed Lee or others – particularly Sup. Christina Olague, who is at the center of the controversy about whether Lee committed perjury when he denied, while testifying under oath, ever consulting with any supervisors about the case – and they were disappointed with Emblidge's advice.

“Scott Emblidge parrots the language of the City Attorney in his recommendation against recusal,” Mirkarimi attorney David Waggoner told us, taking issue with the relationship Emblidge and his firm have with the city and the fact that he also served as legal counsel to the Ethics Commission, some of whose members were unaware of that dual role and expressed concern. “The board must appoint independent counsel.”

In his advice letter, Emblidge did take a similar position to that urged by the City Attorney's Office, which argued that supervisors are assumed to be politicians who have some relationship with the person that they're being asked to judge and that analogizing it to a jury in a criminal case isn't accurate.

“That analogy is misguided. The Charter does not provide for resolution of official misconduct charges by a body unfamiliar with the parties or the facts of the dispute. Rather, it specifically entrusts that decision to the Board of Supervisors, a body composed of individuals who almost certainly would have had dealings with anyone charged with official misconduct,” Emblidge wrote in a letter requested by Board President David Chiu. “Rather than a jury trial, this proceeding is more like an administrative hearing involving employee discipline or other important rights.”

Emblidge said the legal standards indicate that a supervisor must have a financial interest in the decision or be so “personally embroiled” in the case that he/she would have already demonstrated a strong bias or animus against Mirkarimi. And even then, it would be up to a majority vote by the board to excuse a supervisor from the vote.

Such recusal votes are usually mere formalities once a supervisor claims a conflict-of-interest, as then-Sup. Gavin Newsom sometimes did on votes involving landlord-tenant relations. But given that it takes nine of the 11 votes to remove Mirkarimi – with each recusal effectively being a vote in his favor – claims of a conflict will be carefully scrutinized, which Emblidge thinks is appropriate.

“The bar should be high for recusal because of the three-fourths requirement,” Emblidge told the Guardian, making clear that was his personal rather than legal opinion.

The City Attorney's Office strongly advised the supervisors earlier this year not to discuss the Mirkarimi case with anyone, and they have all heeded that advice and refused to discuss the case with reporters, adding to the drama surrounding a high-profile decision with huge potential long-term ramifications.

Unlike other big decisions, in which supervisors will publicly stake out positions before the vote, often making clear the political dynamics and swing votes, nobody really knows where any of the supervisors stand right now. It's widely believed that progressive Sups. John Avalos and David Campos – both of whom have unexpectedly easy paths to reelection in November – are the most likely votes for Mirkarimi, with just one more vote needed to reinstate him.

Olague will be in a tough spot politically, torn between supporting the mayor who appointed her and a district that Mirkarimi once represented, where opposition to his removal seems strongest. Ditto with Sup. Jane Kim, a fellow former Green long allied with Mirkarimi, but also someone who backed Lee last year and has ambitions to be the next board president.

This is also a board filled with Ivy League lawyers, and it's hard to say what aspect of this complex case will draw their focus. Will they side with those who say the decision is simply about showing zero tolerance for domestic violence, or will they share the concerns of Ethics Chair Benedict Hur, who calls this a potentially dangerous precedent that gives too much power to the mayor.

It's even possible that someone from the board's conservative bloc of Sups. Sean Elsbernd, Mark Farrell, and Carmen Chu might object to this costly and distracting move by government to go after one individual, making this more about limited government and deferring to voters rather than the fate of an individual for whom they have no particular fondness.

Until now, it's been difficult to read these tea leaves, but that might be about to change. Emblidge argues that the grounds for recusal are so narrow and restrictive that even if supervisors make public statements about their thoughts on the case, that wouldn't present a conflict-of-interest that would prevent them from voting on it, particularly now that they're actively reviewing the record.

So, are we about to start getting some hints from under the dome about how this is going to play out? We're listening and we'll let you know.

Comments

This case has been a political lynching from the start. If Lee conferred with Olague, then Olague should stand aside as a matter of principle, if nothing else. She owes that much to the people of SF who voted for Mirkarimi. How do you expect her to be a fair and impartial judge when she's taking her cues from the mayor? In fact, Olague's comments to Walker indicate that she had already made her mind about this case. She needs to come clean with the voters, or she doesn't deserve to be D5 supervisor. The voters have a right to the truth (not, oh dear, I can't remember). Put her under oath, if necessary.

Posted by Guest on Oct. 02, 2012 @ 6:02 pm

Before Ross committed Domestic Violence, the "progressives" were praising Lee's pick of Olague.
Now, she's being thrown under the bus and being accused of a conspiracy.
Guess only innocent until proven guilty is for Ross...oh wait he is guilty!
Okay, I get it as long as you play along with the progs, you can have a pass on Donestic violence.

Posted by Guest on Oct. 03, 2012 @ 10:01 pm

Behind those innocent appearing rational arguments to defend the anti Domestic violence movement is the face of tyranny abolishing democracy and the will of the voters and this tyrant will always come as a rational voice in this instance here to protect the people from a man who grabbed his wife’s arm and left a black and blue mark. The black and blue mark cannot be high jacked to serve a corrupt mayor steeped in election and ballot fraud and corruption going back 2 decades nor can these same interests be allowed to high jack the anti domestic violence movement with payments for billboards and promises of funding.

Posted by thatsthewayitis on Oct. 05, 2012 @ 8:06 am

Not everyone in D5 wants Ross reinstated, just the domestic violence Abusers, those who believe domestic violence is a private matter and convicted criminals. Besides that, everyone else prefers a Sheriff that doesn't hurt his wife or imprisons her.
I prefer a Sheriff that doesn't hurt his wife when he's mad, no excuses.

Posted by Guest on Oct. 02, 2012 @ 6:40 pm

I would prefer to have a Sheriff who doesn't consider a guilty plea to be a trivial matter, something that you do with a wink and a nod to indicate that you didn't really commit a crime and are just taking the easy way out.

Posted by D52 on Oct. 02, 2012 @ 7:11 pm

The case never was about domestic battery and these readers muttering to the same monotonic beat makes them into brainwashed robotons. Why these hard-heads continue to refuse to listen to Eliana is no mystery: they don't care about what's true, only what fits their private religion. The misdemeanor has the weight and equivalence of a speeding ticket, so how about everybody just take a breath and let the man get back to work.

Posted by Patty on Oct. 02, 2012 @ 7:54 pm

She was loud and clear on that video.

Posted by D. Native on Oct. 02, 2012 @ 9:50 pm

Obviously D. Native you will choose to believe a video made and scripted by the neighbor to take advantage of the system in a possible child custody battle. Thanks.

Posted by jccourt on Oct. 03, 2012 @ 7:25 am

Than the performance she gave for the EC.

Posted by D. Native on Oct. 03, 2012 @ 7:40 am

I think it's telling that the one time you accuse Lopez of not telling the truth--"taking away her voice", as the saying has gone--is when she said something not flattering to Mirkarimi.

Posted by Hortencia on Oct. 03, 2012 @ 8:08 am

So far, it is just the Mirkarimi-haters who have insulted her with that accusation.

Posted by Guest on Oct. 03, 2012 @ 5:13 pm

She said different things on the video and in her text and emails with Madison from what she said later. One of the two stories has to be the truth. The other, not the truth.

Posted by Hortencia on Oct. 06, 2012 @ 8:53 am

Video of injured distraught wife stating husband caused injury and not the first time he has injured her, you mean that video.
Ofcourse that is credible, that is why people grab their smartphones to videotape, in case the people in the video decide to lie later.

Posted by Guest on Oct. 03, 2012 @ 9:51 pm

Please learn basic law before opining on your kneejerk support for wife-beaters as long as they are left-wing wife-beaters.

Posted by Guest on Oct. 03, 2012 @ 4:47 am

Stop making things up. Nobody was beaten Guest. Thanks.

Posted by jccourt on Oct. 03, 2012 @ 7:21 am

I agree with you, this is not about the domestic Violence, is about their fanaticism of why they believe.

Posted by Guest on Oct. 03, 2012 @ 5:20 pm

I agree with you, this is not about the domestic Violence, is about their fanaticism of why they believe.

Posted by Guest on Oct. 03, 2012 @ 5:22 pm

SF is way over the top when it comes to domestic abuse and unfortuntely almost 80% of the cases in the last decade have not been investigated.

I would imagine that grabbing a spouse's arm during an unfinished argument about taking their child out of the country again and then letting go of the arm within a second is about all the dv workers and legal system can focus on .....too bad.

SF has deeply hurt a whole family that is trying to make life work and things don't always go smoothly in marriages.

Go after the real violent people you have there ...this sheriff story has taken on the life of all those who enjoy 'yellow journalism.'

Posted by sophie on Oct. 03, 2012 @ 6:07 am

What starts with "mere" arm grab's and verbal abuse oftene dns with real injury, even death.

That's why our DV laws are "zero tolerant" - there's an acknowledgement that it's a slippery slope.

Ross could easily have avoided his fate.

Posted by Guest on Oct. 03, 2012 @ 6:26 am

While it may be true that cases of real domestic violence begin with verbal abuse, it is a big time fallacy to suggest that most cases of verbal arguments and minor spats that include something like an arm grabbing progress to more serious DV.

You wouldn't seriously suggest jailing any woman who yells at her husband, in the name of "zero tolerance," would you?

Posted by Greg on Oct. 03, 2012 @ 6:58 am

@Guest. Those DV courts treats all women as liars from the get go even when they are telling the truth. Are you a supporter of such behavior by the courts? Thanks.

Posted by jccourt on Oct. 03, 2012 @ 7:53 am

Condoning Domestic Violence is so "in" for progressives.

Posted by Guest on Oct. 03, 2012 @ 9:53 pm

Because we wouldn't be in this position if he had been able to control his arrogance and his temper in the first place. Something, I might add, the Guardian has studiously ignored in this whole sorry debacle.

Ross is at fault, Ross caused this issue and he has dragged it out. No one else is to blame for "where we are" than Ross Mirkarimi.

Posted by Troll II on Oct. 02, 2012 @ 7:44 pm

Well that's a reach. Gavin could have kept it in his pants, and Ed Lee could have kept it in his pocket. Both had choices about not making an expensive case out of it. Oh, sorry, law enforcement didn't pursue Gavin for illegal drugs, sexual harassment, and felony charges. Gee, if only the pursuit hadn't got started against Mirkarimi, there would be no debacle. What a lousy frame-up this one is. Unclean hands of Mayor Lee and 'mayor' Kawa and the whole bunch of 'em.

Posted by Patty on Oct. 02, 2012 @ 8:02 pm

He has said so himself, he plead guilty and he apologized - that is not up for debate. We are where we are because of Ross' actions. Had he chosen a different path that fateful day he would still be sheriff, still be drawing his salary and we would be talking about something else entirely.

Posted by Troll II on Oct. 02, 2012 @ 8:15 pm

Of course the likes of Troll II will continue spouting the same peurile pieties in reply; supporting the single most hypocritical and dastardly political gambit perpetrated in memory.

Those who blather on repetitively against the sheriff didn't bat an eye over Newsom's malefactory conduct with a subordinate, and it frankly disgusts me how thick the hypocrisy has become; it's mostly based on the same dimwitted knee-jerk reactionary impulses which leads to the "Joe the plumber" phenomena.

I can only hope that those among us retaining a capacity for critical thought will ensure that the ramifications of Lee's abuse of power will cost him and his cohort plenty in both the near term and long run.

Posted by lillipublicans on Oct. 02, 2012 @ 8:50 pm

It certainly disgusts 3/4 of San Francisco's voters. It even disgusted Ross himself enough that he plead guilty and apologized for his behavior while admitting that he was, basically, a giant fucking douchebag.

Posted by Troll II on Oct. 02, 2012 @ 9:07 pm

But I'll take your point to be that the latest troll-poll shows 75% disgusted. Thanks.

Posted by lillipublicans on Oct. 02, 2012 @ 9:48 pm

Lilli, you know you'll call any poll that doesn't back your guy a "troll-poll."

Posted by Hortencia on Oct. 03, 2012 @ 7:52 am

It is not illegal. Causing a bruise on your wife is.

Posted by D. Native on Oct. 02, 2012 @ 9:48 pm

No suprise that you tried to gloss over that. A regular well-spring of ignorance, like Old Faithful, except completely faithless to facts.

Posted by lillipublicans on Oct. 02, 2012 @ 10:00 pm

Disgusting, repulsive etc. Based on his behavior- I plan to never vote for Newsom again- ever. But she never filed a claim of sexual harassment. By all accounts it was an illicit affair between two consenting adults. And again- not a crime. Too bad Ross can't say the same thing.

Posted by D. Native on Oct. 03, 2012 @ 7:44 am

She didn't file a sexual harassment claim because she got months of paid leave that year to keep her quiet and so she could go into rehab, both of which required waiver from her supervisor in the mayor's office. So, while perhaps not a crime, Newsom's misconduct arguably was more connected to his official duties than Mirkarimi's.

Posted by steven on Oct. 03, 2012 @ 10:01 am

Not that I ever voted for Newsom, but the gross inappropriateness of his acts meant he should have resigned and retired from politics. As should Mirkarimi.

Posted by Hortencia on Oct. 03, 2012 @ 7:54 am

Gavin could have murdered Mother Theresa with an axe and posted the video on YouTube and it would do nothing at all to show that Mirkarimi deserves to remain as Sheriff.

That being said, it is safe to say that the public doesn't regard office trysts to be as heinous as physically injuring you wife.

And maybe you want to remove every public official who ever used recreational drugs? You're sure that Chris Daly never smoked a joint? Or Mirkarimi for that matter.

Oh, wait, they are Progressives. We must make allowances. They are doing the lord's work.

Posted by Troll on Oct. 02, 2012 @ 10:03 pm

while in office, *and* have improper relations with a subordinate city employee, but remain perfectly safe from any professional sanction; but -- under the current manipulation of ethics law language being employed by the Lee machine -- Nu could theoritically have suspended Michael Hennessey for pleading guilty (if he had) for smoking a joint in 1969.

Thanks. Good point.

Posted by lillipublicans on Oct. 02, 2012 @ 11:20 pm

Thanks Lilli!

The other point, that I'm sure you will also agree with, is that Newsom handled the situation like a responsible adult as opposed to the foolish, naive, unrepentant Mirkarimi. We wouldn't be in this situation if Mirkarimi had just come clean right away and said, yes, things got a bit out of hand, it was wrong, I'm very sorry and already seeking proper counseling to limit the possibility of it ever happening again.

Instead he made the famous 'private family matter' gaffe and then downplayed the seriousness of his guilty plea.

So yes, I guess there are some useful comparisons, but mostly when I hear Mirkarimi people say something like "Well...he did it and he didn't get punished" I get the sense that their mother should give them a time out and send them to bed without dinner.

Posted by Troll on Oct. 02, 2012 @ 11:46 pm

Clearly you weren't covering the Newsom incident. He was exposed by the press, held a brief press conference apologizing for "everything you may have heard," refused to answer any questions about it for months, blamed his behavior on addiction to wine and pretended to enter a treatment program at politically connected Delancy Street (a 24/7, months long program that Gavin dropped in at occassionally to chat with Mimi Silbert, who gets city grants), and then privately blamed the victim for his behavior. And Newsom took this cowardly tack even though he had nothing personally at stake, unlike Mirkarimi, who was forceably separated from his family, threatened with jailtime on multiple criminal counts, and then has his job, salary, and career unilaterally taken from him by a political adversary. Honestly, I think Mirkarimi -- even with his flaws and missteps -- has been far more adult in dealing with this scandal than Newsom was. Gavin acted like a petulant and imperious child, and the media in this town gave him far more of a pass than it has to Ross.

Posted by steven on Oct. 03, 2012 @ 10:15 am

quite nicely. Mimi Silbert indeed.

I wonder, nontheless, if you don't yet give away too much by referring to Ross' "missteps."

When the facts of Phil Bronstein's involvement with Ivory Madison and the video of Eliana became apparent, Ross must have been awestruck by how momentous the political powerplay being executed against him; I think we should have no small bit of sympathy for "missteps" in that situation, and perhaps we should instead consider commending Ross for keeping as cool a head as he did.

One more thing, I was just listening to the 5/29 EC hearing, and was reminded of the utter absurdity of claims that Ross had interfered with the investigation; committed "witness dissuasion." Much was made of Abe Mertens mentioning that he heard "a man's voice" in the background during a call from Eliana. So much was made of that by lying trolls on SFGate and other boards.

Shepard Kopp pointed out the absurdity of the City's move to include that line of argument since Mertens specifically stated in the police report that it postively did not sound like the man was coaching Eliana in what to say, but rather was apparently carrying on a completely separate telephone conversation.

Here's the link to the EC hearing, the time, and an editted transcript (since the original is laughably flawed):

http://sanfrancisco.granicus.com/MediaPlayer.php?view_id=142&clip_id=15267

00:40:00

Deputy City Attorney Peter Keith:
"...there were numerous communications between the sheriff and Ms. Lopez; that we expect to hear Mr. Mertens testify to getting a call from Ms. Lopez to try to dissuade him from cooperating with the police, he heard Sheriff Mirkarimi in the background.

We would say that the commission should infer from that Sheriff Mirkarimi was aware of these dissuasion efforts and participated in them."

Chairperson Hur:
"Any other questions for Mr. Keith with respect to Ms. Williams' testimony? Okay. Thank you Mr. Keith. And what I'm going to do is invite Mr. Kopp or Mr. Waggoner to address the live witness issue and then we'll deal with the declaration issue."

Shepard Kopp:
"Well, I think that we would concur with what Chairperson Hur has just stated about the universe of witnesses that might possibly be needed live. That is, the Sheriff, Mayor Lee, Ms. Lopez, Ms. Haynes, Mr. Mertens and possibly Sheriff Hennessey. I don't think that live testimony by any other witnesses would serve any

purpose.

But I would like to respond to something that Mr. Keith just said, if I may.

This red herring of witness dissuasion has consumed an incredible amount of time and effort and energy and it does not -- shouldn't have no place here.

Because what Mr. Keith just told you isn't true.

Mr. Mertens was interviewed by the police and was asked, did it sound like the Sheriff was feeding his wife lines to tell you, to try to dissuade you? The response was: 'No, it sounded like he was on another phone call together.'

So this has been a complete waste of time and an effort to tar the Sheriff with something that is not only unprovable -- but false!"

Posted by lillipublicans on Oct. 03, 2012 @ 7:18 pm

By the Republican House, on charges of perjury and obstruction of justice. But the Democratic Senate acquitted him, falling 17 votes shy of convicting on the obstruction of justice charge.

And that was after the most powerful man in the world talked a 19-year-old intern into giving him a blow job in the Oval Office. He still wasn't charged with sexual harassment.

Posted by Guest Ann Garrison on Oct. 03, 2012 @ 12:47 am

I doubt that Lewinsky needed much convincing. Some women are just attracted to power.

Posted by Greg on Oct. 03, 2012 @ 10:17 pm

to learn that some women actually enjoy sex. You shouldn't assume that only Bill Clinton was pleasured in the oval office trysts.

Posted by Guest on Oct. 06, 2012 @ 8:28 am

Emblidge himself should recuse *himself* rather than be giving legal advice to the board.

What a dog and pony show.

The fact that multiple supervisors might feel themselves conflicted simply points to the unserviceable nature of the city's "ethics law" as implemented by the corrupt Ed Lee.

Posted by lillipublicans on Oct. 02, 2012 @ 9:13 pm

You know, the procedures that they are following are the ones prescribed in the City Charter and approved by the voters long before this mess came along.

If it makes you feel better to somehow believe that it is something that Ed Lee invented just to get Mirkarimi it is understandable. What are you supposed to do when a key city law enforcement agency pleads guilty to an ugly crime? Ignore it?

But at some point you should try facing reality. The letter of the law of the City's Charter has been followed. Sorry that you haven't liked the results so far.

Posted by D52 on Oct. 02, 2012 @ 9:54 pm

Only the language ("impliedly required") was changed, but the ballot simplification committee described the changes as "not substantive."

The voters approved no substantive changes in regard to ethics in 1995. But the ethics law has been now said to be applicable to acts not part of official duties; contrary to how the law was adjudicated pre-language change.

A quandary no? Maybe the voters really wanted substantive change in 1995 -- wanted to give the mayor power to launch a political vendetta, but weren't able to communicate that due to an error by the ballot simplification committee? Hmmm... no, I don't think so.

This appears on page 63:

"Article XV: Ethics

(Current)
The current Charter contains provisions establishing and governing the operations of the Ethics Commission. The Charter also contains detailed prohibitions regulating conflicts of interests. Under the Charter, a salaried officer of the City may not also hold a salaried office with the state or federal governments.

(Proposed)
The proposed revision WOULD MAKE NO SUBSTANTIVE CHANGES REGARDING THE ETHICS COMMISSION [empasis added], although some procedural material would be moved to Appendix C, which could only be changed by a charter amendment. The confilct of interest provisions would also be retained in Appendix C. Dual officeholding would be prohibited where the City and the state or federal salaries both exceed $2,500 a year."

http://sfpl4.sfpl.org/pdf/main/gic/elections/November7_1995short.pdf

Also note the emphasis on conflicts of interest, etc.; nothing about van driving or arm grabbing.

Posted by lillipublicans on Oct. 02, 2012 @ 10:25 pm

Yes Lilli, we know. They didn't follow the City Charter procedures. And nobody but you noticed. Not the Commissioners, not Kopp, not Waggoner, nor Mirkarimi, just lillipublican.

And of course, as you so wisely note, there is NO PENALTY SPECIFIED IN THE CITY CHARTER FOR ARM GRABBING! (emphasis mine).

No go take your meds.

Posted by Troll on Oct. 02, 2012 @ 11:55 pm

""Why these hard-heads continue to refuse to listen to Eliana is no mystery: they don't care about what's true""

To reiterate, 77% of abused spouses disavow their accusations. Some of them are murdered afterward.

Eliana is a 77%-er.

Posted by Barton on Oct. 02, 2012 @ 10:02 pm

I've repeatedly asked -- quite politely, please, if you'd be so kind, etc. -- to provide a LINK to wherever that data come from. Seems ever more likely to have been made up out of thin air like so much of the other anti-Mirkarimi hater BS with every unanswered call for same.

That said, Eliana never "recanted" as you falsely claim, because she NEVER CALLED THE POLICE.

Thank you.

(And don't forget about the citation, ever so nicely please.)

Posted by lillipublicans on Oct. 02, 2012 @ 10:16 pm

She recanted from what she unambiguously expressed in the video.

Posted by Hortencia on Oct. 03, 2012 @ 7:56 am

What Eliana said in the video is open to interpretation. She clarified what she really meant in that video, namely that she was terrified of losing Theo in a custody battle...and that's why she was making the video. She never had to recant anything. You guys just put your own spin on it, without ever stopping to consider the "victim's" perspective.

Posted by Guest on Oct. 03, 2012 @ 5:36 pm