Sheriff clearly guilty of official misconduct 

Melissa Griffin - S.F. EXAMINER FILE PHOTO
  • S.F. Examiner File Photo
  • Melissa Griffin

Today, the Ethics Commission is set to issue its final recommendation on the matter of suspended Sheriff Ross Mirkarimi. No one knows for sure how this will turn out, but there is at least one compelling reason for the commission to recommend removal, even without getting into disputed facts.

Mirkarimi admitted on the stand that he committed an act of violence — “I grabbed my wife’s arm and bruised it. That is an act of violence, yes.” — and it is clear public record that he pleaded guilty to false imprisonment and is on probation for three years. He also admitted on the stand that no one from the District Attorney’s Office ever told him the false imprisonment charge was based on turning the van around. That’s just his personal interpretation.

The City Charter defines official misconduct as “conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers.” So how is any public officer supposed to know what that is? Legally, it is defined by “the commonly accepted understanding of unprofessional conduct among others in the same profession as the person challenging the law.”

In this case, each side was invited to bring in an expert to testify about the “commonly accepted understanding of unprofessional conduct” for chief law enforcement officers.

The city attorneys produced a declaration from San Diego police Chief William Lansdowne and Mirkarimi submitted a declaration from former Sheriff Michael Hennessey.

In addition to being a police chief, Lansdowne is an ethics expert who lectures, publishes and provides training on professional conduct to officers who want to become sheriffs and police chiefs.

“Once Sheriff Mirkarimi was elected, he had a claim to the office of the sheriff that made him a law enforcement leader in the eyes of the public, the personnel in the SFSD, and other civic leaders,” Lansdowne wrote. “This imbued him with a professional and ethical duty to conduct himself accordingly from then on.”

He continued, “Sheriff Mirkarimi has admitted that [he] physically harmed and falsely imprisoned his wife, and he apparently did this in front of his distraught child. Committing any crime, much less a violent and heartless crime against a loved one, falls far below the professional standard expected and required of a chief law enforcement officer.”

Lansdowne also opined that Mirkarimi’s actions after the incident fell below the standards of what we should expect from a chief law enforcement officer. In addition to publicly joking about the media attention that the charges brought to his inauguration, he also evaded responsibility for his actions. For example, in evidence is a text to his campaign manager on Jan. 12 that “a loud drumbeat needs to vibe that this is a political witch hunt” even though he testified that when he sent it, he knew he had committed a crime.

In the face of such unequivocal evidence that Mirkarimi’s actions constitute “official misconduct,” Mirkarimi needed to offer a good rebuttal witness. But Mirkarimi’s expert, Hennessey, didn’t testify. According to Mirkarimi’s attorney, Hennessey lives three hours away, where he cares for a sick family member and could not get to The City. The commission ruled that, because parties choose their own experts, each has the responsibility to make sure the experts can be present at the hearing. They refused to let Hennessey conference in and he never showed up. Without an opportunity to question him, the chairman of the commission was clear that any declarations (including Hennessey’s) would amount to “almost nothing.”

Whether Mirkarimi’s actions constitute “official misconduct” hinges on what the accepted professional standards are for sheriffs, and Lansdowne was the only expert who testified on this issue. He was clear that, “Being a convicted criminal and on criminal probation is incompatible with and below the professional standard for a top law enforcement officer and the duties of the office of sheriff.”

Without real evidence to the contrary, I think the commission has no choice but to recommend the sheriff’s removal for official misconduct.

Mirkarimi’s attorney fears worst

During public comment at last week’s Board of Supervisors meeting, Ross Mirkarimi’s attorney David Waggoner did not paint an optimistic picture for his client. Waggoner asked that the Ethics Commission be forbidden from orally presenting its recommendations to the board. He said that because the city attorney has enjoyed unlimited resources and three of five commission members were appointed by officials who “have directly been opposed to the sheriff,” it would be wrong to give the commission time to essentially lobby for its position.

Presumably Waggoner would not have made that request if he expected the commission to be presenting a recommendation in favor of his client. Supervisors John Avalos and David Campos supported Waggoner’s proposal, but the full board settled for cutting the commission’s presentation from 20 minutes to 10 minutes.

City attorney bid in Matt Gonzalez’s future?

Former District 5 Supervisor Matt Gonzalez continues to be popular and respected in his former district, so candidates running for that seat on the Board of Supervisors are understandably seeking his endorsement. In a delightfully picky move, Gonzalez is asking them to respond to a questionnaire.

Hopefuls should submit their positions on propositions on this year’s ballot as well as the 2011 pension measures. You may recall that Gonzalez broke with many progressives last year by backing the pension reform measure put forth by Public Defender Jeff Adachi. In February 2011, Adachi hired Gonzalez to be his chief attorney.

There were other subjects on the questionnaire, but one item seemed to come out of the blue: “Would you support term limits (three terms, 12 years) for City Attorney?” No mention of other non-term-limited offices such as district attorney, sheriff, or of course, public defender.

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Melissa Griffin

Melissa Griffin

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