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Minutes - September 11, 2012

Minutes of the Special Meeting of 
The San Francisco Ethics Commission
September 11, 2012
Room 416, City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102

I. Call to order and roll call

Chairperson Hur called the meeting to order at 3:00 p.m. 
  
COMMISSION MEMBERS PRESENT:  Benedict Y. Hur, Chairperson; Beverly Hayon, Commissioner; Dorothy S. Liu, Commissioner; Paul A. Renne, Commissioner.  Jamienne S. Studley, Vice-Chairperson was excused.

STAFF PRESENT:  Mabel Ng, Deputy Executive Director; Garrett Chatfield, Investigator

COUNSEL FOR THE ETHICS COMMISSION: Scott Emblidge.

COUNSEL FOR THE MAYOR:  Peter J. Keith, Deputy City Attorney (DCA), Sherri S. Kaiser, DCA.

OTHERS PRESENT: Sheriff Ross Mirkarimi; David Waggoner, counsel for Sheriff Mirkarimi; Paula Canny; Patrick Monette-Shaw; Sue Ghrisam; Barbara Tanquery; and other unidentified members of the public.

MATERIALS DISTRIBUTED: 

  • Draft Findings of Fact and Recommendation to Board of Supervisors
  • Minutes for the Ethics Commission Special Meeting of April 23, 2012
  • Minutes for the Ethics Commission Special Meeting of May 29, 2012
  • Minutes for the Ethics Commission Special Meeting of June 19, 2012
  • Minutes for the Ethics Commission Special Meeting of June 28, 2012
  • Minutes for the Ethics Commission Special Meeting of June 29, 2012
  • Minutes for the Ethics Commission Special Meeting of July 18, 2012
  • Minutes for the Ethics Commission Special Meeting of July 19, 2012
  • Minutes for the Ethics Commission Special Meeting of August 16, 2012

II. Consideration of draft report to the Board of Supervisors in the matter of the charges of official misconduct pending against Sheriff Ross Mirkarimi. 

Chairperson Hur stated that he wanted to clarify that the Charter outlines what must occur if the Board of Supervisors determines that Sheriff Mirkarimi engaged in official misconduct.  He stated that the Charter does not provide the Ethics Commission with the discretion to recommend alternatives to removal. 

Commissioner Hayon stated that she wanted to be on the record that her belief is that Sheriff Mirkarimi should be removed for his engagement in official misconduct.

Commissioner Renne stated that the Charter gives the Mayor discretionary power and the Ethics Commission may make the determination if the Mayor appropriately availed himself of that discretion.  He stated that in this case, the Mayor did not abuse his discretion, but he also stated that he disagreed with Chairperson Hur that the Ethics Commission has no power to make a recommendation as to the appropriate punishment upon finding an official engaged in official misconduct.

Commissioner Liu stated that she understood Commissioner Hayon’s position on the Ethics Commission making a recommendation to the Board of Supervisors, but she also stated that the Charter does not allow for a recommendation.

Mr. Emblidge stated that the Charter outlines the task of the Ethics Commission, which is to determine whether or not to sustain the charges of official misconduct.  He stated that the Charter provides no discretion to the Ethics Commission as to the appropriate penalty.

Chairperson Hur stated that Commissioner Hayon could include a concurring opinion in the Findings of Fact and Recommendation that her view is that the Sheriff should be removed.

Commissioner Hayon agreed to include her concurrence in the Findings of Fact and Recommendation.

Chairperson Hur stated that the Mayor had proposed several edits to the Findings of Fact and Recommendation, which are correct.  He thus proposed amendments to reflect those edits. 

Commissioner Renne stated that the Findings of Fact section should include a statement that the Commission did not find credible the version of the incident that Ms. Lopez and Sheriff Mirkarimri testified to before the Commission, and that the video evidence of Ms. Lopez was more credible.

Commissioner Liu stated that she agreed with Commissioner Renne, but that the statement should be included in the Discussion section rather than the Findings of Fact section.  Commissioner Renne agreed.

Commissioner Renne also stated that a sentence should be added describing the actual sentence that was imposed upon Sheriff Mirkarimi for his conviction.

Chairperson Hur and Commissioner Liu agreed, but both stated that the sentence should be in the Discussion section. 

Mr. Waggoner objected to adding any language that would change what the Ethics Commission has already determined, or information that is not relevant. 

Chairperson Hur stated that the Board of Supervisors wants a representative from the Ethics Commission to attend its hearing regarding Sheriff Mirkarimi.  He suggested Mr. Emblidge be that representative.   

Mr. Waggoner objected to the overall language in the Findings of Fact and Recommendation, stating that the document was one-sided and did not include any language that the Ethics Commission had rejected the factual basis of many of the allegations. 

Chairperson Hur stated that it is highly unusual to include facts that were not found by a body into a findings of fact. 

Mr. Waggoner also objected to the Ethics Commission’s refusal to allow several witnesses to testify during the hearing in order to determine whether or not the Mayor committed perjury during his testimony.

Chairperson Hur stated that the Commission discussed that issue and determined that it was collateral to this proceeding.

Commissioner Liu stated that the issue of perjury was not before the Ethics Commission.  She stated that the Ethics Commission applied a fundamental rule of evidence that it has the discretion not to pursue collateral matters, and that the issue of perjury is not appropriately determined by the Ethics Commission.

Mr. Waggoner stated that the counts in the Mayor’s charging document were the charges and the Commission did not sustain all of the charges, so that information should be included in the Findings of Fact and Recommendation.

Chairperson Hur stated that the majority found that there was a basis to sustain the charges in counts four and five and the document reflects that determination.

Mr. Waggoner objected to Mr. Emblidge representing the Commission at the hearing before the Board of Supervisors because Mr. Emblidge also represents the Board regarding this matter.

Mr. Emblidge stated that he was retained pro bono to represent the Ethics Commission and the Board of Supervisors.  He stated that he was retained by separate agreement for each body and that the retainer of his services was discussed at public meetings.

Chairperson Hur stated that Mr. Emblidge could represent both bodies without triggering a conflict of interest, but to avoid the perception of a conflict, another representative should attend the Board hearing.

After discussion, the Commissioner’s determined Chairperson Hur should be the Ethics Commission’s representative at the hearing at the Board of Supervisors.  The parties did not object to Commissioner Hur being the representative.

Public Comment:

Patrick Monette-Shaw stated that the debate about who should represent the Ethics Commission at the Board hearing was shocking.  He stated that Larry Bush wrote an article about Chairperson Hur’s dissent, and that the Ethics Commission’s Findings of Fact and Recommendation rewrites what occurred at the meeting.  He stated that the article stated that the Ethics Commission did not sustain the Mayor’s charges.

Sue Ghrisam stated that there is already a public perception that this process is political.  She stated that the Board hearing should be delayed until after the election. 

Barbara Tanquery stated that the culture of Latina females is that they are emotional, and the video of Ms. Lopez is not actual fact.  She stated that the Board hearing should be delayed until after the election.  She stated that she wanted the Sheriff to get his job back.

Paula Canny stated that she has been a criminal defense attorney for 32 years.  She stated that plea bargains in misdemeanor cases are used so that police officers may keep their jobs.  She stated that when a firefighter or police officer is convicted of domestic violence, the plea deal allows them to stay employed in their professions and allows for rehabilitation. 

Motion 12-09-11-1 (Renne/Hayon) Moved, seconded, and passed (4-0, Studley excused) that the Ethics Commission approve the Findings of Fact and Recommendation to the Board of Supervisors as drafted with the following changes: 1) inserting on page 6, a paragraph that states that “Commissioner Hayon supports a finding that the official misconduct in this case merits the Sheriff’s removal from office;” 2) inserting on page 6, line 6, two sentences that state “In that regard, the Commission did not find credible the version of the incident as described by the Sheriff and Ms. Lopez at the hearing.  Rather, the Commission finds that the evidence contained in Ms. Lopez’s video was more credible;” 3) on page 5, paragraph 7, inserting a clause that states “and the Court imposed a sentence consistent with the March 12, 2012, plea agreement as reflected in paragraph 31 of the Amended Charges;” 4) inserting on page 4, line 1, “and San Diego Chief of Police William Lansdowne;” and 5) changing on page 2, the first sentence so that it states “This matter presents the first time that the Ethics Commission has provided a recommendation to the Board of Supervisors regarding charges of official misconduct under Charter section 15.105.”

III. Minutes of the special meetings of April 23, 2012; May 29, 2012; June 19, 2012;  June 28, 2012; June 29, 2012; July 18, 2012; July 19, 2012; and August 16, 2012.   

Mr. Waggoner objected that no court reporter was present at this meeting.

Chairperson Hur stated that there is no requirement that a court reporter be present.

Chairperson Hur instructed staff to amend the minutes to indicate that the motions that occurred during the hearing were preliminary until final adoption by the Commission on August 16, 2012. 

Public Comment:

Patrick Monette-Shaw stated that it is customary for court orders to include which motions were sustained and which were denied, and that the Findings of Fact and Recommendation should include that information.  He stated that the Ethics Commission exhibits unethical behavior. 

Paula Canny stated that she was speaking on behalf of her client, Ms. Lopez.  She stated that Ms. Lopez was dismayed that the Commission determined her testimony was not credible.  She stated that Ms. Lopez stated the truth.  She stated Sheriff Mirkarimi and Ms. Lopez deserve compassion.  She stated the only reason the video was made was so that it could be used in a possible custody dispute. 

Motion 12-09-11-2 (Hayon/Liu) Moved, seconded, and passed (4-0, Studley excused) that the Ethics Commission approve the minutes for the Special Meetings of April 23, 2012; May 29, 2012; June 19, 2012;  June 28, 2012; June 29, 2012; July 18, 2012; July 19, 2012; and August 16, 2012; as amended.

Mr. Waggoner stated that he submitted a request that the Ethics Commission delay delivering the record of these proceedings to the Board of Supervisors and wanted to know the status of that request.

The Commissioners confirmed that the request raised a procedural issue that has been delegated to Chairperson Hur to handle.

Chairperson Hur stated that he will issue an order in writing. 

Mr. Waggoner also stated that he submitted a legal analysis that was anonymously given to him and he would like that analysis included in the record. 

Chairperson Hur stated that documents submitted by individuals who are not a party to the matter will not be included in the record.

IV. Adjournment

The meeting was adjourned at 4:39 p.m.