A judge today upheld his tentative ruling denying suspended San Francisco Sheriff Ross Mirkarimi’s bid to remove City Attorney Dennis Herrera from his suspension proceedings.
In a brief hearing this morning in San Francisco Superior Court, Judge Harold Kahn denied the motion by Mirkarimi, 50, who was suspended last month by Mayor Ed Lee on official misconduct charges.
Mirkarimi is awaiting an administrative process that will determine whether he can keep his job.
The judge had tentatively ruled Wednesday in favor of the city attorney, who is representing the mayor in the suspension proceedings.
Mirkarimi, who was sentenced to three years’ probation last month after pleading guilty to misdemeanor false imprisonment for a Dec. 31 domestic violence incident involving his wife, was suspended without pay on March 21.
He has the right under the city charter to a hearing before the city’s Ethics Commission on the misconduct charges. The commission would then make a recommendation to the Board of Supervisors, which would need the approval of nine of the 11 board members to remove him from office.
Mirkarimi served on Board of Supervisors for seven years before being elected sheriff in November and being sworn in on Jan. 8.
David Waggoner and Shepard Kopp, Mirkarimi’s attorneys for the suspension proceedings, had argued that the city attorney’s office had a conflict of interest because it was representing the mayor and advising the Ethics Commission at the same time.
Herrera’s office responded with a filing earlier this week noting that the Ethics Commission announced it would retain outside counsel for the suspension proceedings.
Kahn this morning told Kopp that he considered the issue moot after the Ethics Commission retained the outside counsel.
“Frankly, I don’t really understand your arguments,” he said.
Kopp acknowledged outside of court that “it would be a bold step for the judge to remove the city attorney from the case,” but insisted that Herrera’s office should have chosen to advise the Ethics Commission and allow the mayor to use outside counsel.
“They chose in favor of what looks like a very partisan prosecution of Sheriff Mirkarimi,” he said. “We think that’s wrong.”
Kahn on Friday will also consider a separate motion by Mirkarimi’s attorneys to overturn his suspension.
They argue that to be considered official misconduct, the behavior in question must take place while the elected official is in office — Mirkarimi’s Dec. 31 incident occurred before he was sworn in as sheriff. They also allege that the definition of misconduct in the city charter is unconstitutionally vague.
Kopp today called the suspension “a gross overreaching by the mayor” in his powers to remove an elected official from office.
“When this charter provision was enacted, it was never intended to apply to this type of conduct,” he said. “It’s supposed to apply to conduct in office … some sort of corruption or fraud.”
Barring any change prompted by the judge’s ruling this Friday, the Ethics Commission is scheduled to hold its initial hearing on Mirkarimi’s suspension on Monday.
Vicki Hennessy, a former chief deputy with the sheriff’s department, is serving as interim sheriff while Mirkarimi’s case moves forward.
Dan McMenamin, Bay City News