Ross Mirkarimi might appeal Board of Supervisors ruling 

click to enlarge Sheriff Ross Mirkarimi was found guilty of two misconduct charges linked to an incident with wife Eliana Lopez, right. - SF EXAMINER FILE PHOTO
  • SF Examiner file photo
  • Sheriff Ross Mirkarimi was found guilty of two misconduct charges linked to an incident with wife Eliana Lopez, right.

By upholding a portion of Mayor Ed Lee’s official misconduct charges against suspended Sheriff Ross Mirkarimi on Thursday, the Ethics Commission essentially told the Board of Supervisors he should be removed for good.

Nine of 11 supervisors will have to agree in order to permanently oust the sheriff-in-limbo, who has been suspended without pay since March 20 — one day after he pleaded guilty to misdemeanor false imprisonment in connection with a Dec. 31 incident in which he bruised his wife’s arm during a spat at the couple’s San Francisco home.

But Mirkarimi’s attorneys are already crying foul about what they call an “overly broad” interpretation of the City Charter’s official misconduct statute. If the board opts to remove the recently elected sheriff and former longtime supervisor, an outside court appeal of the decision will likely follow, said Shepard Kopp, one of Mirkarimi’s attorneys.

“That’s why I hope the Board of Supervisors decides correctly,” Kopp said. “The fact that the Ethics Commission took the broadest possible view of what official misconduct is under the law renders the recommendation legally infirm.”

Ethics Commission Chairman Ben Hur -- the lone nay vote in Thursday’s 4-1 decision that Mirkarimi committed official misconduct – expressed concern during his dissent about setting a dangerous precedent for mayoral power to remove elected officials. He said even though the domestic violence incident is deplorable, it didn’t apply directly to Mirkarimi’s official duties in a way the misconduct charter language suggests it should.

“Does domestic violence fall below my standard of decency that I expect of public officials? Yes,” Hur said. “But I don’t think that’s what we are being asked to apply. I think if we don’t find a nexus to the relation of the duties, then we are opening this provision up to abuse and manipulation down the road in a way that we’re not really going to like.”

Kopp also said he will seek to have all supervisors sign something akin to a sworn affidavit stating that they never spoke with the mayor about Mirkarimi’s suspension before the misconduct charges were filed. The issue came up after Lee’s June 29 testimony, which was marred by accusations of perjury when the mayor testified that he hadn’t discussed the topic with any supervisors.

During a tense bomb threat situation that interrupted the mayor’s statements, Building Inspection Commissioner Debra Walker said her friend Supervisor Christina Olague – Mirkarimi’s mayor-appointed replacement on the Board of Supervisors -- told Walker that Lee asked her about the suspension before it happened.

Olague later denied Walker’s account.

Ethics Commission Executive Director John St. Croix said a written record of the extensive Mirkarimi proceedings should be ready for supervisors to review by mid-September, at which time the board will have 30 days to make a final decision on the sheriff’s fate.

Although there was some speculation that the Ethics Commission would expound on its finding of official misconduct by also stating whether the wrongful behavior rises to the level of removal, St. Croix said the more specific determination is not necessary.

The commission upheld only two of the six misconduct charges: that Mirkarimi bruised his wife’s arm and subsequently pleaded guilty to a misdemeanor. The remaining four charges — including that Mirkarimi dissuaded witnesses in the case and that he abused his power to gain leverage over his wife in a brewing custody dispute about the couple’s 3-year-old son — were not sustained.

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Dan Schreiber

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