Supervisors reinstate Mirkarimi, rejecting Lee's interpretation of official misconduct

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Ross Mirkarimi, wife Eliana Lopez, and their son during a rally before the historic hearing.
Luke Thomas

The Board of Supervisors has voted to reinstate Sheriff Ross Mirkarimi and reject the official misconduct charges that Mayor Ed Lee brought against Mirkarimi for grabbing and bruising his wife’s arm during a New Year’s Eve argument, for now ending an ugly saga that has polarized San Franciscans.

The vote was 7-4, two votes shy of the nine needing to sustain the charges and remove Mirkarimi, who now resumes the position voters elected him to in November with back pay going back to March when Lee suspended him. Sups. Christina Olague, David Campos, John Avalos, and Jane Kim voted in Mirkarimi’s favor, condemning the domestic violence incident but saying the it didn’t meet what is and should be a high and clear standard for overruling the will of voters, a concern also voiced by Sup. Mark Farrell. 

“I do take this job seriously, that we are public policy makers,” said Kim, a lawyer who emphasized their duty to set clear standards for officials during these unprecedented proceedings rather than being swayed by emotional responses to conduct by Mirkarimi that she called “incredibly egregious.”

But for most of the supervisors, that was enough. Sup. Eric Mar, who is in the middle of difficult reelection campaign against the more conservative and well-financed David Lee, said he thought is was important to have “zero tolerance” for domestic violence and his vote was “in the service of justice and a belief it will combat domestic violence.”

Earlier in the hearing, Kim had led the questioning of Deputy City Attorney Sherri Kaiser, whose broad interpretation of official misconduct standards and inability to set clear guidelines troubled Kim, just as it had earlier to Ethics Commission Chair Benedict Hur, the sole vote on that body against removal after it conducted six months worth of hearings.

“I agree with Chairman Hur, I think we need to take the most narrow view of official misconduct,” Kim said, echoing a point that had also been made by Campos, who quoted Hur’s comment from the Aug. 16 hearing where the commission voted 4-1 to recommend removal: “I have a lot of concern about where you draw the line if you don’t relate this to official duties.”

Farrell also shared that concern, which he raised in questioning Kaiser and during the final board deliberations almost seven grueling hours later. 

“I worry a great deal about the potential for abuse in this charter section,” Farrell said, warning this and future mayors to use great caution and restraint before bringing official misconduct charges. Yet he still found that the “totality of the circumstances” warranted removal because Mirkarimi had compromised his ability to be the top law enforcement officer.

Each supervisor expressed what a difficult and joyless decision this was, and even those who supported Mirkarimi strongly condemned his actions and the efforts by some of his supporters to minimize the seriousness of his actions and the need for him to change.

“I have tremendous mixed feelings about Ross Mirkarimi,” Avalos said, noting his many proud progressive accomplishments but adding, “I’ve always seen Ross as someone who has deep flaws….[This saga] offers a chance for personal transformation and I think that’s something Ross really needs to do.”

Mirkarimi seems humbled by the hearing, and the stinging criticism of his former colleagues and his one-time allies in the domestic violence community, and he pledged to work on “regaining their trust” as he tries to embody the city’s long-held value on redemption.

“I appreciate all the comments of by the Board of Supervisors and I hear the message. The next step is mending fences and moving forward,” Mirkarimi said. Later, he told reporters, “We’re absorbing all the comments that were made by the Board of Supervisors. They are my former colleagues and I take it very seriously.”

That need to heal the deep and emotional divide between San Franciscans who see this case in starkly different ways – which was on vivid display during the hours of public testimony – was sounded by several supervisors. “We will need to come together as a city on this,” Board President David Chiu said.

Most of those who spoke during the nearly four hours in public comments favored Mirkarimi and condemned the efforts to remove him as politically motivated, overly judgmental, and setting a dangerous precedent rather than resorting to usual method for removing politicians after a scandal: recall elections.

"If anything happens to the man, it should come back to me to make that decision. Don't do their dirty work for them," one commenter said.

The most politically significant person to speak during public comment was former Mayor Art Agnos, who said he was a friend and supporter of Mirkarimi, but he was more concerned with the scary implications of this decision. "I respectfully urge that this Board protect all elected officials from the dangerous discretion used in this case and reinstate Sheriff Ross Mirkarimi."

Most of those who spoke against Mirkarimi were domestic violence advocates, who were adamant that Mirkarimi be removed, casting it as a litmus test for whether the city takes their issue seriously. "This is a disciplinary proceeding, it is not election stealing," said Beverly Upton, head of the Domestic Violence Consortium, who has lead the campaign to oust Mirkarimi since the incident was made public.

But the two sides seemed to be speaking past one another, each expressing righteous indignation that people didn't see the issue like they did, indicating how polarizing these long-lingering proceedings have become and how difficult to heal that rift may be.

“It made my stomach turn to hear some of the comments that were made,” Sup. Carmen Chu said, condemning the actions of Mirkarimi supporters in vocally or visibly supporting one another. “That was wrong, this is not a joyous event.”

Yet Farrell said he was also concerned that Mirkarimi’s opponents would go after supervisors who made a principled stand against removing him. “I hope no one takes pot shots at the people who voted against this,” he said.

That principled stand – condemning Mirkarimi’s behavior but having a high standard for removing an elected official – was a trail blazed by Hur, who opened the hearing by presenting the Ethics Commission’s findings and a decision that he was the sole vote against. He noted the "challenge of my presentation" but made careful efforts to accurately represent the views of the commission majority.

Yet he ended up using almost half of his time at the podium -- his allotted 10 minutes plus a few extra minutes to respond to questions from supervisors -- to stress the danger of broadly interpreting the city's official misconduct language and not requiring direct connection to an official's duties.

"Public policy suggests we should interpret this more narrowly than proposed by the majority," Hur said, later adding that his colleagues on the commission "did not provide a clear basis for how official misconduct is delineated."

When Sup. Malia Cohen asked what he meant by the "public policy" interest at stake here, he replied, "The need to have policies that are clear...It does benefit the public when the laws are clear." (Cohen later voted to remove Mirkarimi, stating with little explanation, “I believe the reading of the charter is narrow and appropriately applied in this case.”)

The issue of what qualifies as official misconduct -- and whether there is a predictable way for officials to know where that line is drawn, or whether it's entirely up to the discretion of mayors -- was also highlighted by Kaiser’s long presentation, but probably not in the way she intended.

Kaiser appealed to people's sense of outrage about the initial arm-grab and subsequent guilty plea -- claiming Mirkarimi "attacked his wife" and "this conduct was serious!" -- and seemed to think that was an adequate test of whether bad behavior by an elected official warrants his unilateral removal from office.

Kaiser took issue with Hur's contention that a lack of clear, limiting standards gives too much power to future mayors to remove their political enemies for minor incidents.

"The mayor certainly does not agree with Hur's argument for a bright line rule," Kaiser said. She mocked the notion that mayors would abuse this expanded power. "The check on that is the Ethics Commission, and the check on that is this body." Kaiser's position was that the statute should be read as broadly as possible and that the process should be trusted to protect against political manipulations.

But Chiu also took issue with that standard, saying "having clarity in the law seems to make sense" and asking Kaiser how officials can know what standards they're expected to meet.

"I don't agree and I didn't mean to convey the standard is murky," Kaiser replied, but as she tried to elaborate, her standard began to seem ever murkier.

"It depends on the circumstance," Kaiser said. "But that doesn't make it too vague to apply. It makes it more nimble."

A nimble standard might suit mayors just fine, but the idea seemed to bother the supervisors, even Farrell, who told Kaiser that her position "seems to me very contradictory."

At the end of the hearing, Campos returned to Kaiser’s “nimble” comment as a reason for rejecting that argument and Lee’s charges: “I don’t think the analysis made me comfort. She said the interpretation was nimble, but I don’t know the difference between nimble and vague, and I think they are one in the same.”

"Most cases will be clear, but there are decisions on the periphery," Kaiser told Farrell during the earlier questioning, not making it clear which category she'd put the Mirkarimi case into.

Kim was the next to try to pin Kaiser down on whether there's a discernible standard for the city to apply to this and future cases, saying she'd like to see a "bright line rule or a test." Kaiser said that it depends on the office, but that a law enforcement officer shouldn't commit a crime.

"Then any misdemeanor the sheriff pleads to is official misconduct, is that right?" Kim asked.

No, she said, the conduct must be while someone is in office -- seemingly contradicting her earlier point – and found to be so by the board and commission. But then she said, "It is true that any misdemeanor relates to the duties of a sheriff."

Kim persisted: "This is where I get stuck. When does it fall below the standard of decency?"

"The charter doesn't answer that question. It's a case-by-case determination," Kaiser said.

"What's to guide us in the future?" Kim asked.

But again, there was no clear answer, it's simply for mayors to decide. "It is a discretionary decision," Kaiser said.

Kim, a lawyer, questioned whether the stance by Kaiser and Lee could lead the courts to strike down the city's untested statute. "Does that open us up to the vagueness issue, which would make the clause unconstitutional?" Kim asked.

But Kaiser said San Francisco voters wanted to give the mayor wide power to interpret misconduct when they approved the broad new official misconduct language in 1995, part of a complete overhaul of the City Charter.

"Voters made a considered choice to put suspend and remove procedures in the charter," she said, trying to counter the argument that recall elections should be used to remove elected officials. "These suspension and removal procedure is more nimble. It's less expensive than a recall."

Yet with a final price tag expected to be in the millions of dollars and proceedings lasting seven months, it’s debatable whether this process was really cheaper and more nimble.

Mirkarimi attorney David Waggoner began his presentation by saying, "There's no question that on Dec. 31, 2011, Ross Mirkarimi made a terrible mistake."

But it was a mistake that Mirkarimi admitted to, accepted the criminal punishment that followed his guilty plea, endured a forced six-month separation from his family, had his job and salary taken from him, was the target of a media and political campaigns that have deeply damaged his reputation, "his entire life's work was destroyed almost in an instant." All for pleading to a low-level misdemeanor.

"At the end of the day, the punishment does not fit the crime," Waggoner said.

He noted that just three elected officials have been removed for official misconduct in the city's history, each time for serious felonies. But now, it's being applied to a misdemeanor with arguments that broaden a mayor's ability to remove political adversaries.

"You must decide whether to uphold or overturn the will of the voters," Waggoner told the supervisors.

He even took a swipe at the domestic violence advocates who have led the campaign to remove Mirkarimi: "Ironically, the very advocates who should be defending Eliana Lopez have been attacking her."

Taking over from Waggoner, Mirkarimi's other attorney, Shepard Kopp, said Mirkarimi had no official duties before taking the oath of office, and the charter makes clear there needs to be connection. "It says misconduct has to occur while an official is in office."

Kopp also brought the focus back to the precedent in this historic case. "The other problem with the mayor's position is it doesn't give you any guidance or future mayors any guidance," Kopp said, later adding, "To follow the mayor's position is not workable policy and it doesn't have any support under the law."

Supervisors questioned Kopp and Waggoner, but it didn't seem to reveal any new insights, simply reinforcing their points that official misconduct should be a rarely used tool applied only to serious crimes.

In her final five-minute final rebuttal, rather than letting her co-counsel Peter Keith speak or trying to mitigate some of the damage from her earlier testimony, Kaiser seemed to double-down on her tactic of using emotional arguments rather than addressing legal standards for removal.

She alleged Mirkarimi's team offered "a theory that domestic violence doesn't matter if you're sheriff," prompting an audible negative reaction from the crowd that Chiu gaveled down. That reaction was even louder and more outraged when Kaiser implied Mirkarimi "threatens the life of a family member."

Those sorts of characterizations fed much of the crowd's stated belief that this case was a "political witchhunt" designed to destroy a progressive leader, and the opposition expressed to some domestic violence advocates testimony could be used against the larger progressive community.

But Agnos, who sat in the audience throughout the long hearing, told us the frustration was understandable. “The crowd, after nine months of agony, expressed a lot of emotions, and that is inherent in mass crowds,” he said. “They didn’t mean ill will to the domestic violence community. There was no malevolent intent there.”

Supervisors who voted to reinstate Mirkarimi said they want to make clear their commitment to combating domestic violence. “I worry that this case has set us back because of the tensions around how we responded,” Avalos said.

“I think it’s important that no matter how we feel about this that we come together as a city,” Campos said. “People on both sides have legitimate viewpoints on this issue.”

Comments

Ross apologized from the get go and paid a horrid price as they tried to lynch him and destory his family. They are happy and together now, and you are the onewho can't stand it.
as for the values of your city, from which you expatriated yourself, being so in love and all.. The city and county of SF and Mr. Gascon prosecute far fewer cases of dv than many adjoining counties. Why don't you come back, upset tummy and all and work to recall this DA?

Posted by Guest on Oct. 11, 2012 @ 8:29 am

Novato is not halfway around the world.

Posted by Bob In Portland on Oct. 11, 2012 @ 10:46 am

Guest | " --- Clinton was impeached --- "

...was not in fact impeached, for the U.S. Senate acquitted him as 2/3 of the U.S. Senate were unwilling to vote in favor of impeachment, i.e. the articles of "impeachment" as discharged by the U.S. House did not present evidence that supported removal from office.

...a little less specious than your post, albeit no less opportunistic than your post.

(granted.)

Posted by Guest on Oct. 10, 2012 @ 4:07 pm

the name given to the process itself and not the outcome.

Posted by Guest on Oct. 11, 2012 @ 7:43 am

Impeachment is the province of the House of Representatives which voted to lodge charges against Clinton. He was impeached.

The Senate takes those charges and holds a trial which failed to meet the threshold required for ousting a president and Clinton survived to be president for two more years.

Interestingly, had impeachment succeeded and Gore been named President, then he would have probably won the 2000 election for reals and that would have changed history to some extent.

Posted by marcos on Oct. 11, 2012 @ 8:22 am

chance to see President Gore, he would have lost by an even bigger margin in 2000. He just wasn't the right material.

Posted by Guest on Oct. 11, 2012 @ 9:23 am

Clinton was impeached, but not convicted..

Posted by Guest on Oct. 11, 2012 @ 8:31 am

When it first became known that Ivory Madison had twice talked with Phil Bronstein prior to her going to the cops, I suggested at sfgate that one of their many reporters covering this story might go to his rolodex and give Phil a call to get his full story. Later Madison said that the phone calls were to get the numbers of Mirkarimi's friends so that she could hold an "intervention" for him. For asking the Chronic to do its job and contact Bronstein I was banned from sfgate. I have noticed that a number of other commenters who opposed Mirkarimi's ouster were also disappeared.

The Chronicle tried to create a reality that everyone in the City wanted Mirkarimi gone. It didn't work.

Posted by Bob In Portland on Oct. 11, 2012 @ 10:44 am

Especially from known biased sources.

Posted by Guest on Oct. 11, 2012 @ 10:59 am

then that the anecdotal charges against Mirkarimi generated by Lee didn't "cut it."

Posted by Bob In Portland on Oct. 11, 2012 @ 12:41 pm

the underlying allegations are just "anecdotes"

What is anecdotal is Debra Walker's unsubstantiated claim about the contents of a conversation that she wasn't present for.

Posted by Guest on Oct. 12, 2012 @ 5:18 am

were quite apparently skewed in favor of their anti-Mirkarimi editorial agenda.

As I heard library user Peter Warfield remark recently, the privately-owned forum of SFGate gives us the impression of being public forum, but when content can be editted or excised, and when participants can be flicked away at the click of a moderators mouse, such an impression is completely illusory.

Posted by lillipublicans on Oct. 12, 2012 @ 5:35 am

It's not like SFGate is biased but SFBG is not. They're just different biases and many folks would claim SFBG is more extreme, politically.

Posted by Guest on Oct. 12, 2012 @ 5:58 am

People who opposed the Chron's anti-Mirkarimi policy were banned outright.

Posted by Bob In Portland on Oct. 12, 2012 @ 8:34 am

An email address or IP address can be banned. But not a person, who can use any email or IP they want.

Posted by Guest on Oct. 12, 2012 @ 8:45 am

I'll add that I've personally observed innocuous posts get disappeared on SFGate that had no offensive characteristic except for being critical of the political power play being excercised against Ross Mirkarimi, but I've *never* seen posts disappear here that weren't outright advetising spam.

Not to be coming right out and saying the "Guest" here is a liar... but, then again, at least one "Guest" *is* a goddammed liar, we know that, don't we?

Posted by lillipublicans on Oct. 12, 2012 @ 8:55 am

for that bandwidth, then they are entitled to moderate content. If you want to control the game, then buy a ball and host your own website.

That said, all you have to do with SFGate is use a different email and IP and, bingo, you can post there again. SFGate don't know who you are; only where you are posting from. Try a different starbucks and your IP will be different.

Posted by Guest on Oct. 12, 2012 @ 9:30 am

I actually read the rules when I was banned. I asked for an explanation too, repeatedly, and got no response or explanation.

You are right. The Chronicle has the absolute legal right to ban whoever they want, and if a commenter wants to change his identity he can probably sneak back in under a different identity to post a few more comments, in violation of sfgate rules, before he or she is banned again. On that we do not disagree.

What I am saying is that the Chronicle is not the fair, unbiased arbiter or truth it would like us to believe it is. It has heavily invested in Lee's attempts to unseat Mirkarimi. We don't know its full involvement in this case because it refuses to self-report about Bronstein's connections to Ivory Madison in the key days between the New Year's Eve incident and when Madison called the police. It has continuously slanted its coverage of the Mirkarimi case and in order to bolster its argument it has removed its most outspoken critics from its comments pages.

Posted by Bob In Portland on Oct. 12, 2012 @ 9:59 am

That's not an anecdote.

That means that Walker is willing to face potential perjury charges but Lee and his supporters aren't. Nor is Gascon willing to investigate. The weight of evidence is on Walker's side, not Olague's or Lee's.

Posted by Bob In Portland on Oct. 12, 2012 @ 10:11 am

Former President of the Board of Supervisors, Aaron Peskin, also submitted a similar sworn statement. To the best of my knowledge neither Mayor Lee, or anyone acting on his behalf, has denied these allegations under oath.
Typical business as usual in SF; selective law enforcement, abuse of power; and rampant corruption in the Hall of Smoke and Mirrors. The only difference between here and Chicago is that we don't get snow, but we till get snowed.

Posted by Patrick Monk.RN. on Oct. 12, 2012 @ 10:37 am

And a lot of it was pretty outrageous. How do you know it was for the reason you say? How do we?

Posted by Hortencia on Oct. 11, 2012 @ 11:26 am

if directed at Mirkarimi. You can read those comments right now if you wander over to sfgate.

I'm not sure what you think I wrote that was outrageous, please remind me, but rjerje, who posted there and seems to have been disappeared, was not outrageous at all. Just on the wrong side.

I know of several others who were also banned for cogent comments on this case and the Chronicle's role in it. It's not illegal for the Chronicle to do it. It's just that no one should ever again think that the newspaper of record for San Francisco is in any way fair or balanced. The Chronicle is firmly behind the Brown/Pak/Lee machine and wanted a clear narrative of moral unanimity against Mirkarimi. It didn't work.

I have, from time to time, written letters to the editor and commented at sfgate for about thirty years. I can only speculate here but I think that connecting Phil Bronstein's phone calls with Ivory Madison to C.W. Nevius' pompoms got me disappeared.

Posted by Bob In Portland on Oct. 11, 2012 @ 12:37 pm

de las madres? Check out Charity Navigator..La Casa has some quirky financials..
Miss Black, for her lack of basic proportionality, makes six figures

$123,300 + a year..

did you know that?

Charity Navigator gives La Casa de las Madres....significantly less than stellar marks. do the donors know or care?

Posted by Guest on Oct. 11, 2012 @ 1:30 pm

that La Casa de las Madres got money for that anti-Mirkarimi billboard from loser Chris Cunnie's camp. Political money, a political billboard. May La Casa have the same fate as Komen.

Posted by Bob In Portland on Oct. 11, 2012 @ 3:46 pm

San Francisco domestic violence consortium...not listed by charity navigator...We should be able to easily discover the yearly income of this self-effacing non-profit servant..right?
why just the other day, they had a fundraiser you could be a part of for only $25,000.

Posted by Guest on Oct. 11, 2012 @ 1:48 pm

I don't live in SF, and never will, because of things like this. It's very sad that such a person when they do something to draw attention to themselves like this does not have to pay for it as one of the 99% would if they were in a position of public trust.

I follow the what goes on in San Francisco with interest because some good ideas and progressive values are on display, but not with a travesty like this.

You seriously cannot find anyone to represent the city with better moral values than this guy, and you have to transmit this example to the rest of the city and police force ... really bad and corrupt decision.

Posted by Guest on Oct. 11, 2012 @ 3:34 pm

The fact of the matter is that despite Ross' now proven degree of fallibility he's one of the most responsible, thoughtful, integrity-prone public servants to come along in a generation. You probably wouldn't get that from watching FOX News.

Posted by lillipublicans on Oct. 12, 2012 @ 6:54 am

You posted hundreds of tiems in the last few months and every single one of your posts has been pro-ross.

And now you expect us to accept your "objective" assessment of Sheriff wife-beater just as is?

Posted by Guest on Oct. 12, 2012 @ 7:30 am

http://www.sfbg.com/2012/10/03/endorsements-2012-san-francisco-propositi...

Naturally, Guest-Troll will come back with the claim that is the "exception that proves the rule" or some such tiresome rhetoric.

No. The fact is that the attempt by reactionary forces to turn back the results of an election are very important to me; because of the respect and admiration I hold for the target in this case, and also because of the wider implications and implementations of such behavior.

Your lies can't paper over the basic facts here.

Posted by Guest on Oct. 12, 2012 @ 7:45 am

you've probably been the most partisan, and certainly the most prolific, Ross and DV apologist here for the last 9 months.

Posted by Guest on Oct. 12, 2012 @ 7:57 am

but you might try reading the record before opining.
sometimes an arm grab is just an arm grab
sometimes..a lynch mob is created to accrue political power.
it failed this time.

record can be read in its entirety
at: www.sfethics.org

Posted by Guest on Oct. 12, 2012 @ 10:28 am