Case law unclear on possible removal from office 

click to enlarge Neither prosecutors nor Mirkarimi have yet explained the specific act he admitted to. - SF EXAMINER FILE PHOTO
  • SF Examiner file photo
  • Neither prosecutors nor Mirkarimi have yet explained the specific act he admitted to.

Oft-cited precedents for the possible removal from office of Sheriff Ross Mirkarimi seem to bear little similarity to his case.

Mirkarimi pleaded guilty on Monday to misdemeanor false imprisonment in connection with an alleged domestic violence incident involving his wife on New Year’s Eve, days before he was inaugurated as sheriff. Neither prosecutors nor Mirkarimi have yet explained the specific act he admitted to.

Some have cited the admission of a crime by one of The City’s top law enforcement officials, and the Sheriff’s Department’s work to both incarcerate and rehabilitate domestic violence perpetrators, as reason Mirkarimi should step down or be dismissed. Mayor Ed Lee has said he is still considering whether to seek his removal for “official misconduct” under the city charter.

Two past cases could provide fodder for attorneys’ arguments.

In 1976, Mayor George Moscone removed plumbers’ union boss Joseph Mazzola from his post as airport commissioner following a labor strike, supported by Mazzola, which caused sewer repair delays and water main breaks. The airport lost heat and toilets were clogged.

Despite the seemingly direct connection between Mazzola’s work for The City and his support of a strike that impacted it, a state appeals court found that the charges “had nothing to do with his official capacity as airports commissioner nor to the performance of his duties as such.” Mazzola’s removal was overturned.

The City’s official misconduct law, updated in 2003, defines it as “any wrongful behavior by a public officer in relation to the duties of his or her office, willful in its character, including any failure, refusal or neglect of an officer to perform any duty enjoined on him or her by law, or conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers and including any violation of a specific conflict of interest or governmental ethics law.”

In its 1980 decision in the Mazzola case, the appeals court had no such definition to work with, but at the time cited state law, which is similar to the current San Francisco definition.

In 2007, Mayor Gavin Newsom sought to remove Supervisor Ed Jew after Jew was charged in state court with multiple felonies related to him not residing in the district he was elected to represent, and in federal court based on allegations he was extorting tapioca shop owners seeking permits with The City. Unlike Mazzola, Jew resigned before the official misconduct process was completed and later pleaded guilty to extortion, mail fraud and perjury.

Removal of Mirkarimi for official misconduct would require approval of the Ethics Commission and then nine of the 11 members of the Board of Supervisors, on which he served before being elected sheriff. The mayor would then choose a replacement to serve until the next election.

Another option that could be pursued against Mirkarimi is a recall, which can only be begun after the official has served for six months. Such an effort could make the November ballot.

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Ari Burack

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