San Francisco City Attorney Dennis Herrera strongly rebutted the arguments of suspended Sheriff Ross Mirkarimi, who is trying to overturn his suspension on official misconduct charges in the wake of his conviction in a domestic violence case last month.
Mayor Ed Lee suspended Mirkarimi, 50, after the sheriff pleaded guilty to false imprisonment charges in connection with a Dec. 31 incident in which he allegedly grabbed and bruised the arm of his wife, Eliana Lopez, during an argument.
He was sentenced to three years’ probation and other penalties on March 19, and suspended without pay by Lee two days later.
Mirkarimi’s attorney, David Waggoner, filed a petition for a writ the following week asking for a judge to overturn the suspension.
Waggoner argued that the suspension was “an abuse of discretion and not supported by substantial evidence” and that the definition of official misconduct in the city charter is “unconstitutionally vague and overbroad.”
He also argued that suspending Mirkarimi without pay for a misdemeanor that does not constitute moral turpitude was a denial of his due process rights.
Read The Documents
“Respondents’ Opposition To Petitioner’s Motion To Enforce Petition,” in the matter of Mirkarimi v. City and County of San Francisco (S.F. Superior Court Case No. CPF-12-512077)
“Declarations in Support of Respondents’ Opposition to Petitioner’s Motion to Enforce Petition,” in the matter of Mirkarimi v. City and County of San Francisco, S.F. Superior Court Case No. CPF-12-512077 (April 9, 2012).
In the filing, Waggoner wrote that courts have ruled that official misconduct must be related to the elected office and must occur while the accused is in office, and cited a 1980 case involving San Francisco and former airport commissioner Joseph Mazzola.
Mirkarimi was still a member of the Board of Supervisors and sheriff-elect at the time of the incident, and was not officially sworn in as sheriff until Jan. 8.
In a response filed Monday by Herrera, the city attorney derided that argument.
He wrote that if it is true, “then there is a period of complete immunity between election and the oath of office for every new or continuing elected official to commit any kind of reprehensible act without the possibility of removal from his or her position of public trust.”
He wrote, “Public officials could rob banks, steal cars, or mug old ladies, and no one, not even the voters, could do anything about it” since the city charter prohibits a voter recall within the first six months of an elected official’s term.
The city attorney also criticized the vagueness argument regarding the city charter’s definition of official misconduct as “conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers.”
He wrote, “The special obligation of a sheriff-elect and a supervisor to obey the law and protect the integrity of a criminal investigation is the opposite of vague – it is actually quite clear.”
Lastly, Herrera’s filing countered the due process argument, saying that the mayor met personally with Mirkarimi to discuss his intentions to suspend him and gave him a chance to tell his side of the story, but Mirkarimi declined.
The city attorney argued that the court should deny the appeal of the suspension and allow the administrative proceedings to move forward.
San Francisco Superior Court Judge Harold Kahn will consider the arguments of both sides and will rule in a hearing scheduled for April 20.
If he sides with the city attorney, the city’s Ethics Commission will hold a hearing on the charges–tentatively scheduled for April 23 — and make a recommendation to the Board of Supervisors, which would need the approval of nine of the 11 supervisors to remove Mirkarimi from office.
Mirkarimi served on the board for seven years before being elected sheriff in November.
Vicki Hennessy, a former chief deputy with the department, is serving as interim sheriff while the case moves forward.
Dan McMenamin, Bay City News
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