Suspended Sheriff Ross Mirkarimi lost his first two battles in the legal and political war to get his job back Thursday, after a judge tentatively denied his bid to immediately undo his misconduct suspension or continue collecting his salary while he fights the dismissal.
Earlier in the day, San Francisco Superior Court Judge Harold Kahn also declined to remove City Attorney Dennis Herrera from the proceedings because of a conflict of interest.
Mirkarimi, 50, who was suspended without pay last month by Mayor Ed Lee, is awaiting a Monday hearing by the city’s Ethics Commission on official misconduct charges. The commission will make a recommendation to the Board of Supervisors, which will decide whether to remove him from office.
The alleged misconduct stems from a Dec. 31 domestic violence incident in which Mirkarimi bruised the arm of his wife, Eliana Lopez, during an argument.
Mirkarimi pleaded guilty last month to a misdemeanor charge of false imprisonment and was sentenced to three years’ probation and other penalties. Lee suspended him March 21.
His attorneys sought to overturn the suspension, arguing that the definition of official misconduct is unconstitutionally vague and that the misconduct had to have occurred while the official was in office.
Mirkarimi was a member of the Board of Supervisors at the time of the incident and was not sworn in as sheriff until Jan. 8.
The City Attorney’s Office derided that argument, saying it would give elected officials immunity to commit crimes in the time before they were sworn into office.
Kahn’s tentative ruling sided with the city attorney. He wrote that Mirkarimi’s arguments for reinstatement “can and should be addressed in the first instance by the Ethics Commission and Board of Supervisors.”
The judge also ruled that Mirkarimi’s suspension should remain unpaid.
Mirkarimi’s attorney Shepard Kopp declined comment on the tentative ruling Thursday afternoon, saying he wanted to wait to speak until after a hearing today at which the judge is expected to issue his final ruling.
Kopp had also argued that Herrera could not simultaneously represent the Mayor’s Office, the Ethics Commission and the Board of Supervisors because the latter two are involved in administrative removal proceedings, while his client Mirkarimi is also legally challenging the mayor’s suspension in San Francisco Superior Court.
But earlier this week, the Board of Supervisors approved outside counsel to work pro bono for both the board and the Ethics Commission, so Kahn declared the issue moot Thursday.