The official misconduct charges against suspended Sheriff Ross Mirkarimi look damning on their face, which should come as no surprise. Mayor Ed Lee had plenty of fodder to base removal proceedings on after revelations in the sheriff’s sordid domestic violence case.
But aspects of the suspension’s reasoning are raising red flags with some legal experts, who say The City’s legal argument — if successful — could make it far too easy to remove elected officials from office.
The City Charter defines “official misconduct” as behavior that “falls below the standard of decency, good faith and right action impliedly required of all public officers.” The charges against Mirkarimi, drafted by the City Attorney’s Office at the behest of the mayor, assume that this definition means the misbehavior does not have to occur while the official is in office, nor does it need a direct “nexus” to the duties of the office.
Under such a sweeping definition, could it not be argued that former Mayor Gavin Newsom sleeping with his campaign manger’s wife or former Board of Supervisors President Aaron Peskin berating political rivals with late-night phone calls might constitute official misconduct?
“It means if you ever did anything bad before you took office, you could be kicked out,” said Stuart Hanlon, an attorney who represented former Supervisor Ed Jew in The City’s last major official suspension in 2007. “One would think that to do something as extreme as kick someone out of elected office, the conduct should be related to your job.”
In Mirkarimi’s case, the Mayor’s Office argues his conviction on false imprisonment charges directly impacts his ability to lead his department, and Lee recently observed that even though Mirkarimi was not officially sworn in at the time of the Dec. 31 abuse, he had been sheriff-elect for more than a month.
However, UC Hastings College of the Law professor David Jung noted that violations outside the bounds of office are not unprecedented in elections law. The Brown Act, for example, can apply to officials who are not yet in office. Still, Jung said parameters should be in place for when misconduct can be considered relevant.
“It would be difficult to argue that ethical obligations of an office attach to any conduct before an election has take place,” Jung said. “Once an election has taken place, there’s precedent to say the obligation attaches at that point.”
This isn’t the first time there has been disagreement over the misconduct definition. The Jew proceedings included statements from Linda Ross, a former senior counsel in the City Attorney’s Office, that the definition of official misconduct covers “any wrongful behavior in relation to the duties of the office.” Attorneys in that case struggled to come to terms on a solid definition.
David Waggoner, an attorney representing Mirkarimi in an upcoming Ethics Commission hearing on the suspension, did not return requests for comment. After the ethics hearing — expected to begin in three weeks — nine of 11 members on the Board of Supervisors would have to uphold Lee’s suspension to remove Mirkarimi permanently.