Mayor Ed Lee’s effort to remove Ross Mirkarimi as sheriff “is an unprecedented political prosecution that has nothing to do with the will of the people,” Mirkarimi’s attorneys said in their opening legal filing to the Ethics Commission on Tuesday.
In March, Lee suspended Mirkarimi from office for official misconduct after Mirkarimi pleaded guilty to misdemeanor false imprisonment of his wife, Eliana Lopez. The couple had denied prosecutors’ allegations that Mirkarimi committed domestic violence against his wife Dec. 31, just days before he was sworn in as sheriff.
Now the Ethics Commission must decide whether to recommend to the Board of Supervisors that Mirkarimi be permanently ousted.
Tuesday’s brief, filed by Mirkarimi’s attorneys David Waggoner and Shepard Kopp in advance of the commission’s hearing beginning later this month, contends that a San Francisco mayor has sought to remove an elected official only once since 1900.
“The lack of any real historical precedent for removal proceedings of an elected official speaks volumes about the perils of any effort by one elected politician — the Mayor — to interfere with the will of the electorate by attempting to remove another elected official and bar that official from holding office for life,” the attorneys wrote.
While there have been other official misconduct proceedings for appointed city employees, the only other one for an elected official was in 2007 for Supervisor Ed Jew, who resigned before the proceedings were finished and was later convicted of multiple felonies, including extortion and perjury.
Mirkarimi’s attorneys cited the 1977 five-day jail term for criminal contempt of Sheriff Richard Hongisto, who refused to enforce a court order to evict tenants from a building, and the terms as district attorney in the 1990s of Terence Hallinan, who had assault convictions as a young man. None of the mayors who presided over either official’s terms sought to remove them for official misconduct.
The charges filed by Lee are “flimsy, flawed and fallacious,” the attorneys wrote.
They also maintained that the conduct Mirkarimi admitted to had nothing to do with his elected office, a claim Lee disputes. The City Attorney’s Office, acting on behalf of the mayor, has further alleged that Mirkarimi may have dissuaded witnesses in his criminal case and is impeding the current investigation.
And Mirkarimi’s attorneys said the ability of the mayor and city attorneys to question anyone they like, and search and seize property in the investigation, is a violation of the due process rights of Mirkarimi, who has no similar power to gather evidence.
The next Ethics Commission hearing on the case is May 29.