Sunday, September 9, 2012


San Francisco Ethics Commission
Official Misconduct Proceeding against Sheriff Ross Mirkarimi

(September 9, 2012 – updated through October 1, 2012,
with Background and Afterword reporting final decision by
San Francisco Board of Supervisors on October 8, 2012)


by Eric A. Brill

Background

Through much of 2012, a great many San Franciscans were fascinated by the Ross Mirkarimi “official misconduct” proceeding – a two-step process that began with the Ethics Commission (April-August) and ended with the Board of Supervisors on October 8. 

Shortly before becoming Sheriff in January 2012, Ross Mirkarimi had been involved in a heated argument with his wife, Eliana Lopez, during which he grabbed her upper arm so hard that he bruised it. A neighbor, Ivory Madison, videotaped Ms. Lopez’s bruised arm two days after the incident and notified the San Francisco police a few days later. In a televised appearance nine days later, San Francisco's newly elected District Attorney, George Gascon, announced that Mirkarimi was being charged with several misdemeanors and assured the public that Mirkarimi would not be treated leniently. The prosecutor assigned to the case by District Attorney Gascon eventually offered Mirkarimi a plea bargain and he accepted, pleading guilty to false imprisonment. Mirkarimi was sentenced to several forms of punishment typical in such cases, not including jail time.

Though some elements of Mirkarimi's punishment would continue for several years and his inexcusable behavior would tarnish Mirkarimi's reputation for long after that, most San Franciscans assumed the case was closed. It was just beginning. Though the incident had occurred before Mirkarimi became Sheriff, Mayor Edwin Lee suspended Mirkarimi from office several months later, without pay, and sought to remove him permanently under San Francisco’s “official misconduct” law. After several contentious televised hearings, the Ethics Commission on August 16 voted 4-1 to recommend that the Board of Supervisors remove Mirkarimi. The Board held a special meeting on October 8 to act on the recommendation but did not adopt it. Mirkarimi was reinstated with back pay to serve the remainder of his four-year term.

Some Disclosures and Disclaimers: The analysis below was written and published anonymously between the Ethics Commission's decisive hearing on August 16 and the special Board of Supervisors meeting on October 8. It was sent to all eleven Supervisors. The author (a San Francisco attorney) also assisted Mirkarimi’s attorneys in drafting their brief submitted to the Board of Supervisors in advance of the October 8 meeting. All writing and other assistance were provided anonymously and without compensation. Until after the Board finally disposed of the proceeding, the author had never met, communicated with, or identified himself to Sheriff Mirkarimi, Mayor Lee or any of their attorneys – except for anonymous email exchanges with Mirkarimi's attorneys during the brief-writing process. 

My motivation was not political. At the risk of revealing considerable ignorance, I confess I had paid so little attention to local politics that I did not know who Ross Mirkarimi was until this case arose. I vaguely recalled having voted for him for Sheriff, but only because the outgoing Sheriff of 32 years, Michael Hennessey, had endorsed him. That had been enough for me to distinguish Mirkarimi from the other names on the ballot – none of which I had recognized either. My motivation was simply this: Ross Mirkarimi unquestionably deserved punishment for what he had done to his wife, but the prosecutor and criminal court were responsible for seeing to that. By all accounts, they had performed their responsibilities diligently and without any lenience toward Mirkarimi. He had been punished in his criminal case to the same extent as other men who commit the same misconduct. The prosecutor, not Mirkarimi, had suggested the plea bargain that ended the criminal case. Mirkarimi had been scrupulously performing his sentence obligations. "Official misconduct" laws are intended to punish official misconduct, period – not as political tools for mayors to remove elected opponents based on misconduct that occurred before they took office. Voters may recall an elected official at any time, for any reason or no reason at all, either at the next election or in a special election held just for that purpose. Mayor Lee could have asked the voters to do that. None of his predecessors had ever sought to remove an elected official based on pre-office conduct. Mayor Lee should not have done so, and no mayor should do so in the future. One hopes the outcome of this case will make such self-restraint more likely.

Note to Readers: Except for the brief Afterword at the very end, the remainder of this essay was written and published before the Board of Supervisors' special meeting held on October 8, 2012, in a frank effort to persuade the Supervisors to reject the Ethics Commission's August 16 recommendation that Sheriff Mirkarimi be removed from office. I do not know whether any Supervisor was influenced by this writing, or even read it, though it was sent to each of them.

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Introduction

Law professors like to say it: "Hard cases make bad law." This is one. But hard cases are what law students typically read and discuss in class. Sometimes the discussions feature well-reasoned views, clearly presented. More often, they expose views that have not been well thought out and are presented even less clearly than they are understood. A little of both happened at the Ethics Commission's final hearing on August 16 – but mostly the latter. The brief afternoon deliberations resembled nothing so much as a rambling class discussion, and they succeeded about as well in resolving important legal questions. The reasons seem clear now.

Throughout this proceeding, the Commissioners appeared so determined not to signal their leanings that they declined to do what a good judge typically does: decide scope-defining legal questions along the way so that evidence and arguments will be restricted to relevant matters under the applicable law. Had the Ethics Commission done so, this proceeding would have focused properly on Mirkarimi's official conduct while he was Sheriff, not wallowed in his personal conduct eight days, ten months and four years before he took office.

The Ethics Commission neglected to do this, and the proceeding degenerated into what most of the audience preferred to see anyway: the sensational trial of the criminal case that was denied to them when that case was abruptly settled. Hell hath no fury like a news-starved city that has a high-profile case snatched away from it, and nothing is so tempting as an opportunity to snatch it back. By the end, what happened on December 31, 2011, and four days later when Ivory Madison reported the incident to police, seemed to be all that mattered, even though all of that happened before Mirkarimi became Sheriff and none of it related to his duties as an outgoing Supervisor (as the Ethics Commission itself agreed). What little time was spent on Mirkarimi's actual tenure as Sheriff was devoted largely to (1) fruitless efforts to show he'd interfered with the investigation of the New Year's Eve incident; and (2) trotting out city employees, expert witnesses and even Mayor Lee to predict irrelevantly that Mirkarimi would be an ineffective Sheriff because of personal misconduct that occurred before he took office.

Some insist that Mirkarimi's misconduct need not have occurred while he was Sheriff. I am confident a court will tell them otherwise some day, and I hope what I write below will make that even more likely. But the immediate point is narrower: simply that the Ethics Commission should have decided the key process-shaping question – May an elected Sheriff be removed from office without voter approval based on misconduct that occurred before he became Sheriff? – before, not after, admitting testimony from a parade of witnesses who said little or nothing about Mirkarimi's actual conduct as Sheriff.

In the end, the Ethics Commission did not find Mirkarimi had engaged in any misconduct at all while he was Sheriff – official or unofficial – but hardly anyone noticed. By then, nearly everyone involved in this proceeding, or watching it, mistakenly believed that the question to be decided was much different from what it really was. Even the Ethics Commission appeared to believe this, and so it answered a question that most of its members found more fascinating: Did Mirkarimi commit misconduct before he became Sheriff? Once it had decided the answer was "yes," four Commissioners turned their attention to persuading others, and themselves, that they had answered the question actually presented to them. That hopeless effort culminated in the muddled "law school class discussion" that occurred on the afternoon of August 16.

Pointed questions, asked early, could have focused this proceeding properly. For example, the Ethics Commission should have given the parties essentially these marching orders before sending them off to write one of their early briefs:

So far, no one has pointed us to a case where a public official was charged with official misconduct for something he'd done before he took office – except where the official was convicted of a felony while he was in office, but that didn't happen here. Has this been mere coincidence, or have officials been removed only for misconduct that occurred while they were in office? Most misconduct cases don't address this question. Is that because it doesn't matter when the misconduct occurred, or simply because it wasn't an issue since the official had been in office when the misconduct occurred? Are there other removal cases involving misconduct, short of a felony, that occurred before the official took office? If so, we'd appreciate citations. If it turns out that non-felony misconduct committed by Mr. Mirkarimi before he became Sheriff can't be considered official misconduct, it may be appropriate to focus this proceeding on the time period when he actually was Sheriff.

Possibly Mayor Lee's attorneys would have come up with something, but I doubt it. More likely they would have been boxed into a corner, left with nothing but their specious argument that Mirkarimi was an "elected but unsworn" Sheriff on New Year's Eve, obliged to perform "official duties" he did not have. If the Ethics Commission had examined this argument thoroughly and decided it once and for all, early in the proceeding, almost certainly it would have rejected it (someone elected as Sheriff has no "duties of office" until he becomes Sheriff). This would have left Mayor Lee with no basis for presenting his "pre-Sheriff" evidence and related arguments that dominated the proceeding. He'd have been left with allegations of Mirkarimi's witness dissuasion, abuse of power, improper turnover of guns, and failure to cooperate with the prosecution of the criminal case against him – all of which were unanimously rejected by the Ethics Commission on August 16. The proceeding would have moved along more quickly, almost certainly with the opposite outcome.

Instead, four of the five Commissioners persuaded themselves that the New Year's Eve incident was what mattered, set themselves firmly against Mirkarimi on that basis, and then searched for a legal rationale (or rationales) to support the non-legal conclusion they'd already reached. Probably not one of them would acknowledge that happened, or even recognize that it did. But it did.

Now it falls to the Board of Supervisors to squeeze through the narrow passage the Ethics Commission has left it – to remove Mirkarimi from office, as Mayor Lee demands, without handing the present and all future San Francisco mayors a powerful political weapon they have never had before – the ability to rid themselves quickly of a political opponent by removing him from office for personal misconduct that occurred before he took office.

Almost certainly the Supervisors cannot navigate this narrow passage without achieving this unintended result, even though the zeal of some of them, and political pressure being applied to all of them, may persuade them that they can. If the Board accepts the Ethics Commission's recommendation and removes Mirkarimi, some Supervisors may never recognize the long-term mistake they will have made. Others may understand but not care because they expect to be gone when their mistake becomes clear, or because they are confident or naïve enough to believe no mayor will ever use this new power against them. Only a small handful of Supervisors seem capable of appreciating what is at stake here. Unfortunately for Mirkarimi, there may be too few to save him from becoming the first of many officials who fall to this powerful new weapon of San Francisco's mayors.

Hard cases make bad law, but they nonetheless make law. The Supervisors should remember this clearly when they decide whether to approve what the Ethics Commission did on August 16.

Analysis

In an ironic close to this five-month proceeding, after having explicitly rejected Mayor Lee’s disputed fact allegations – one by one, unanimously in each case – the Ethics Commission nevertheless ruled for Mayor Lee, 4 to 1, on two of his six Counts against Mirkarimi (Counts 4 and 5). Their ruling was narrowly based on the only facts the Ethics Commission did find were established – facts that had been accepted by nearly everyone before this proceeding even began: Ross Mirkarimi had physically abused his wife during an argument on December 31, 2011 (New Year's Eve), eight days before he became Sheriff, and had been convicted of misdemeanor false imprisonment in March 2012.

The Ethics Commission did not find that Mirkarimi committed any misconduct while he was actually Sheriff – or on any day other than New Year's Eve. (Strictly speaking, the Ethics Commission did rule that Mirkarimi's misdemeanor conviction in March 2012 was a new act of "official misconduct" by Mirkarimi, distinct from his New Year's Eve misconduct on which the conviction was based. But that legal conclusion was so plainly incorrect that the Board of Supervisors probably will ignore it, and a reviewing court almost certainly will. A conviction is a judicial determination that the defendant committed a crime in the past. The making of that determination is not new misconduct by the defendant. Nor does a conviction become new misconduct merely because it results from a guilty plea (as in Mirkarimi's case) rather than a trial. To distinguish between those two bases for a conviction would discourage guilty pleas, which the criminal justice system strongly encourages. City Charter Section 15.105(c) does say that conviction of "a felony crime involving moral turpitude" is a ground for removal, even if the felony was committed before the official took office. In that situation (only), the statute does treat a conviction as new misconduct, distinct from the crime. But Section 15.105(c) is limited to serious felonies, not misdemeanors. Mirkarimi was convicted of a misdemeanor. He was never even charged with a felony.)

This table shows the Ethics Commission's rulings on each of Mayor Lee's six Counts:

Count Number
Count Title
Charge Sustained?
Count 1
Wrongful Behavior by a Public Officer – Domestic Violence
No
Count 2
Wrongful Behavior by a Public Officer – Abuse of Power
No
Count 3
Wrongful Behavior by a Public Officer – Impeding a Police Investigation
No
Count 4
Crime, Conviction and Sentence
Yes, to the extent based on NYE physical abuse
Count 5
Breach of Required Conduct –
Sheriff and Sheriff-Elect
Yes, to the extent based on NYE physical abuse
Count 6
Breach of Required Conduct –
Supervisor
No

What had the physical abuse consisted of?

The Ethics Commission added few details – though it did discuss and decline to sustain Mayor Lee’s “domestic violence” charge (Count 1). All five Commissioners agreed that Mirkarimi had grabbed and bruised the arm of his wife (Eliana Lopez) during a heated argument in the family van that began on the way to lunch at a pizza restaurant on New Year's Eve, as both Mirkarimi and Ms. Lopez acknowledged. Some Commissioners may have suspected something worse happened after the couple arrived home, as Ivory Madison (a neighbor) claimed she was later told by Ms. Lopez, though both Mirkarimi and Ms. Lopez testified that their argument had not continued after they arrived home. (Neither Ms. Madison nor anyone else besides Mirkarimi and his wife ever claimed to have seen or heard any part of the incident.) For example, Ms. Lopez later may have run out of their house into the four-lane street on which they live, followed by her two-year old son, as Ms. Madison also claimed, though neither Ms. Madison nor anyone else claimed to have seen this and none of the Commissioners claimed to believe it happened. Mirkarimi may have imprisoned Ms. Lopez in their home until the next day, though Mirkarimi and Ms. Lopez denied this, no Commissioner claimed to believe it, and an independent witness claimed that Ms. Lopez purchased food at his restaurant later that day and produced a sales receipt signed by her, showing the date and time. Two Commissioners (Liu and Studley) said they were relying also on unspecified abuse that allegedly had occurred eight months before Mirkarimi was elected (March 2011), though this alleged abuse was never described and Ms. Lopez testified that it had been a bitter verbal argument, not physical abuse. Perhaps some Commissioners also credited the testimony of Christina Flores, Mirkarimi's girlfriend when he met Eliana Lopez, about an alleged arm grab back in 2008, though no Commissioner claimed to believe Ms. Flores. In any event, except for the arm grab that caused Ms. Lopez's bruise, the Ethics Commission did not specify what physical abuse, if any, had occurred on New Year’s Eve.

It also will be important down the road to keep in mind what other facts were not established. One by one, unanimously in each case, the Ethics Commission declined to sustain Mayor Lee’s “witness dissuasion” allegations, his “abuse of power” allegations (the “powerful man” argument), his “turnover of guns” allegations, and his allegations that Mirkarimi had committed misconduct by not encouraging his wife and Ivory Madison to testify against him, and by not thanking Ms. Madison sincerely for doing so.

This table summarizes the Ethics Commission's findings of fact:


Alleged Fact
Truth Established?
Relied on by Commissioner(s) Who Voted Against Mirkarimi?
Physical abuse on New Year's Eve
Yes
Yes (all four)
Witness dissuasion – Eliana Lopez
No
No
Witness dissuasion – Ivory Madison
No
No
Abuse of power ("powerful man" argument)
No
No
Misconduct in turnover of guns
No
No
Failure to cooperate in criminal prosecution against him
No
No
Alleged misconduct (unspecified) in March 2011 (Lopez videotape)
No (no finding requested)
Yes (Liu, Studley)
Alleged arm grab in 2008 (Christina Flores' testimony)
No (no finding requested)
Not explicitly cited by any Commissioner

Fortunately for Mayor Lee, his failure to establish any post-New Year's Eve misconduct did not hurt him on August 16. All by itself, the New Year’s Eve physical abuse finding underpinned a 4-1 vote against Mirkarimi on Counts 4 and 5 – or at least it appeared to. In Count 4, Mayor Lee had charged that “Mirkarimi engaged in wrongful behavior by committing the crime of falsely imprisoning his wife [and by being convicted and sentenced for having done so].” In Count 5, he had charged that “Mirkarimi’s acts of wrongful conduct [in Count 4] constitute conduct that falls below the standard of decency, good faith and right action impliedly required of a Sheriff and Sheriff-Elect.”

The Ethics Commission sustained none of the other four Counts – notably including Count 6, which was essentially identical to Count 5 but relied on Mirkarimi's official status as a Supervisor rather than as a "Sheriff and Sheriff-Elect." Even Counts 4 and 5 were not sustained to the extent they relied on Mirkarimi's conduct after New Year's Eve, since the Ethics Commission did not find that any misconduct had occurred after New Year's Eve.

Narrow though it was, the Ethics Commission ruling may persuade the Board of Supervisors to remove Mirkarimi from office. The outcome plainly surprised Commissioner Hur (the Ethics Commission's chair, and its sole dissenter) and, undoubtedly, Mirkarimi and his attorneys. It surprised me too, given the Ethics Commission's clearly mistaken legal conclusion on Count 4 (conviction of a misdemeanor based on misconduct that occurred before taking office does not amount to "official misconduct") and its failure to find facts necessary to support its legal conclusion on Count 5. Probably it will surprise the court that some day is asked to decide whether the Ethics Commission got it right.

This case may never reach a court, of course, if the Board of Supervisors declines to remove Mirkarimi. But the Supervisors probably are less capable than the Ethics Commission of analyzing legal questions, and more likely to let political considerations trump analysis. After the dust clears, a court will probably get it right. Unfortunately for Mirkarimi, that may happen too late to resurrect his political career.

How did Mayor Lee fail to establish any of the key disputed facts, after five months of trying, and yet triumph at the very end? The answer lies in the Ethics Commission's handling of two related questions:

QUESTION 1: If an official's conduct falls "below the standard of decency, good faith and right action impliedly required of all public officers," must the conduct also relate to his duties of office in order to be official misconduct?

QUESTION 2: If the answer to Question 1 is "yes," did Mirkarimi's physical abuse of his wife on New Year's Eve relate to his duties of office?

Commissioner Renne emphatically answered "no" to Question 1 shortly after the hearing began, plainly surprising the other four Commissioners and probably most other people in the hearing room. Despite Chairman Hur's countless repetitions of "I welcome the views of my fellow Commissioners" over the preceding several months, Mr. Renne thought it best to keep this particular view to himself until the very last day. The deliberations quickly lost clarity, and nearly even direction, after the other four Commissioners instead answered "yes" to Question 1 and tried (unsuccessfully) to persuade Mr. Renne that he was incorrect. Both parties agreed that Mr. Renne was incorrect. Mayor Lee's attorneys even acknowledged that San Francisco's "official misconduct" statute would be unconstitutional if interpreted as Mr. Renne insisted it should be.

Mr. Renne acknowledged that he was alone in his view, but he stuck to it. He endorsed what Mr. Hur had labeled the "Option 1" definition of official misconduct at the preceding hearing a month earlier. The other four Commissioners and both parties endorsed "Option 2." Here is the relevant portion of the official misconduct definition (City Charter Section 15.105(e)), reformatted first as Option 1, and then as Option 2, to highlight their one important difference. The words in both Options are exactly the same as in the original (which includes no formatting, paragraph numbers or colon, and contains a comma instead of the semi-colon). The two Options differ only in their placement of the italicized words:

OPTION 1
(Commissioner Renne)

Official misconduct means:

(1) any wrongful behavior by a public officer in relation to the duties of his or her office, willful in its character, including any failure, refusal or neglect of an officer to perform any duty enjoined on him or her by law; or

(2) conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers...

OPTION 2
(Commissioners Studley, Liu, Hayon and Hur, and both parties)

Official misconduct means any wrongful behavior by a public officer in relation to the duties of his or her office, willful in its character, including:

(1) any failure, refusal or neglect of an officer to perform any duty enjoined on him or her by law; or

(2) conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers....

There is one important difference between the two Options, resulting from the different placement of the italicized words. Under Option 1 (Mr. Renne's view), the individual's misconduct must relate to his duties of office only if the misconduct was "inaction" (paragraph 1), not if it was "action" (paragraph 2). Under Option 2 (the view of the other four Commissioners and both parties), the individual's misconduct must relate to his duties of office whether it involved inaction (paragraph 1) or action (paragraph 2). (During the August 16 hearing, paragraphs 1 and 2 were sometimes called the "inaction clause" and the "conduct clause," respectively.)

Mr. Renne's "no" to Question 1 made it unnecessary for him to answer Question 2 (though he insisted he'd answer it "yes" in any case). In his view, it made no difference whether Mirkarimi's conduct on New Year's Eve related to his official duties or not: any and all misconduct may be "official misconduct," even conduct that is entirely personal and has nothing at all to do with the individual's duties of office. All that mattered to Mr. Renne was whether Mirkarimi's conduct had fallen "below the standard of decency, good faith and right action impliedly required of all public officers." And so he sided with Mayor Lee.

As Ms. Studley soon would do too, Mr. Renne added that San Francisco's voters would be appalled if the Ethics Commission did not rule that a Sheriff who'd pled guilty to false imprisonment was guilty of official misconduct. Neither he nor Ms. Studley explained why their assessment of the voters' will, even if correct, was relevant to the strictly legal question the Ethics Commission has authority to decide – whether Mirkarimi had committed "official misconduct" as defined in City Charter Section 15.105(e). Nor did they explain why the voters' will should be determined by the unelected Ethics Commission rather than declared by the voters themselves in the political process established precisely for that purpose: a recall election.

As noted, the other four Commissioners disagreed with Mr. Renne on Question 1. Three of them (Mss. Studley, Liu and Hayon) nevertheless sided with Mayor Lee because they answered "yes" to Question 2: They concluded that Mirkarimi's physical abuse of his wife on New Year's Eve had related to his duties of office as "Sheriff and Sheriff-Elect" (though not to his duties of office as Supervisor – Count 6 was not sustained).

Against the backdrop of this five-month proceeding, the 4 to 1 vote in favor of Mayor Lee and the brief debate that preceded it happened in a veritable blink of the eye on the afternoon of August 16. It exposed either a disturbing shallowness of thought by the Commissioners in preparation for this important deliberation, or an inherent flaw in the mandated fully-public process, which evidently discourages Commissioners from engaging in a frank and clarifying exchange of views until the very end. Or a bit of both.

Commissioner Hur was the only dissenter, though a court probably will rule some day that he alone reached the correct conclusion. Like Commissioners Studley and Liu (and Ms. Hayon, who followed their lead), Mr. Hur answered "yes" to Question 1: Official misconduct must relate to the official's duties of office, regardless of whether it involves action or inaction. But unlike the other Commissioners, Mr. Hur answered "no" to Question 2. He strongly disapproved of Mirkarimi's conduct on New Year's Eve and was pleased that Mirkarimi had been convicted and punished like other men who do the same thing. But in his view, Mirkarimi's misconduct had not been "official" misconduct because it had not occurred "in relation to the duties of [Mirkarimi's] office." In Mr. Hur's view, this phrase means that the misconduct must have occurred in connection with the official's actual or purported performance of his official duties. Plainly that had not occurred in this case, and so Mirkarimi could not be guilty of official misconduct.

Mr. Hur agreed with Mirkarimi's attorneys that Mazzola v. City and County of San Francisco (1980) 112 Cal. App. 3d 141, dictated a decision for Mirkarimi. Some background on that case:

During a six-week strike by 17 craft unions against the City and County of San Francisco in the spring of 1976, Joseph Mazzola had occupied two high-level positions. He was the long-time head of Local 38 of the Plumber's Union, one of the striking unions, and a six-year member of San Francisco's Airport Commission. Although the striking unions had agreed not to interfere with fire protection at the airport, the strike nevertheless caused considerable damage, lost revenue and inconvenience, both at the airport and in the city generally. There were allegations that members of Mazzola's union, including his own son, had made matters worse by breaking the law – tampering with air valves at the airport, firebombing trucks, and sabotaging water mains, for example – and that Mazzola himself had been involved in some of this wrongdoing.

As the court later noted, Mazzola kept his distance from the Airport Commission during the strike. He attended no Airport Commission meetings nor otherwise involved himself in its affairs. The court determined that the Airport Commission had only policy-making functions and was not involved in labor matters. According to several other Airport Commissioners, nothing that ever came up for a vote – before, during or after the strike – involved any potential benefit or detriment to Mazzola in his status as a union official.

Four months after the strike ended, Mayor George Moscone suspended Mazzola from the Airport Commission for his conduct during the strike, and filed charges with the Board of Supervisors to remove him permanently. The Supervisors complied and Mazzola was removed. He filed a lawsuit to challenge his removal. The lower court ruled against him. In the reported case, the appellate court reversed, ruling in favor of Mazzola.

Although "official misconduct" was not defined in San Francisco's "removal" statute at the time, the court rejected Mazzola's argument that the statute was unconstitutionally vague. The statutory language made two key points clear enough, the court said: (1) what conduct was prohibited; and (2) that a direct "nexus" between the misconduct and the official's duties of office must be shown.

Having rejected Mazzola's constitutional challenge, the court next considered whether he could possibly be held to have committed official misconduct. Significantly, the court declared its holding without having considered whether Mazzola's conduct amounted to "misconduct." It was unnecessary to do so because the court concluded that his strike-related conduct, wrongful or not, had been unrelated to his duties of office as an Airport Commissioner. Absent such a "nexus," Mazzola could not be guilty of "official" misconduct:

Mazzola cannot be legally guilty of official misconduct. Quite clearly, official misconduct requires a direct relationship of the alleged wrongdoing to the office held. … [The] charges against appellant had nothing to do with his official capacity as airports commissioner nor to the performance of his duties as such.

As the court added, not to require that "official" misconduct be directly related to an official's duties would effectively prevent Mazzola from serving as both a union official and an Airport Commissioner:

[It] was well known to both the mayor and the board of supervisors of San Francisco that Mazzola was and would continue to be a union official. To accept [the mayor's] theory [that the alleged misconduct need not relate to the official's duties] would be tantamount to stating that union officials may serve as city officials only so long as they do not discharge their duties to their local unions.

Not surprisingly, Mayor Lee's attorneys disagreed that Mazzola was controlling. They pointed out that the phrase "conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers" had not been added to the definition of "official misconduct" until 1995, 15 years after Mazzola. It was not clear, therefore, that Mazzola would be decided the same way under the amended definition. They neglected to mention that the "standard of decency" phrase related only to the meaning of "misconduct" in "official misconduct," not at all to the meaning of "official" (though Mr. Renne disagreed, of course: he believed the phrase had done away with "official" entirely).

If the addition of the "standard of decency" phrase in 1995 would have changed the result in Mazzola, this probably would come as a surprise to the Mazzola family, and many others. Just like Joseph Mazzola in 1976, his son Larry has for many years been the head of Plumbers Union Local 38. Also like his father, Larry Mazzola is a long-time member of San Francisco's Airport Commission. He was first appointed in 1994, and his current term expires in 2014. Larry Mazzola probably would be upset to learn that, ever since 1995, the year after he took office, his father's strike-related activities in 1976 – and his own strike-related activities today, should his union ever again go on strike – could be considered "official misconduct" for which he could be removed from office. Mr. Mazzola's union members probably would be surprised to learn their leader has this conflict of interest. So would former mayors Frank Jordan, Willie Brown and Gavin Newsom, who appointed and re-appointed Larry Mazzola to the Airport Commission over the years, probably without believing they had compromised his ability to carry out his union duties.

Mayor Lee's attorneys may not have known that Larry Mazzola has followed in his father's footsteps quite this closely. Probably they would insist this information does not change their views, but almost certainly it would trouble them even to consider that the "standard of decency" phrase might have made no difference in Mazzola. After all, as Mr. Renne had asked, if this phrase did not eliminate the "direct relationship" requirement in Mazzola, why had it been added? Why bother if Mazzola would be decided the same way with or without it? Commissioners Liu and Studley asked essentially the same question later. Unable to answer their own question, each acknowledged her agreement with Mr. Renne that the 1995 amendment to the "official misconduct" definition somehow had undercut Mazzola, even if they could not explain exactly how.

Could this be – Commissioners Liu and Studley agreed with Mr. Renne after all? Not even an hour earlier, they had carefully distanced themselves from him, agreeing with Commissioners Hur and Hayon, and both parties, that Mr. Renne's interpretation of "official misconduct" would make the statute unconstitutionally vague. And they had been right to do so. We live under the rule of law in this country. To be constitutional, a law must be sufficiently clear that people who are required to obey it can determine what conduct is prohibited. Even Mayor Lee's attorneys conceded that Mr. Renne's argument – that any and all misconduct is official misconduct, whether it relates to official duties or not – would cause San Francisco's "official misconduct" law to fail this constitutional test. It would be an example of the precise opposite of the rule of law – what might be called the "law of rulers," which boils down to just one law: "Don't do anything bad," where "bad" is subjectively defined case-by-case, after the fact, by men who work for the ruler. True, the language Mr. Renne cites – "conduct that falls below the standard of decency, etc." – sounds more refined than "Don't do anything bad." But does it really set clear limits on those who enforce it?

No, everyone agreed (except Mr. Renne). If San Francisco's "official misconduct" law were interpreted not to require that "misconduct" relate to "official" duties, then "official misconduct" would mean nothing more precise than "misconduct." That would leave unclear the scope of prohibited conduct, and so the law would be unconstitutionally vague.

The Mazzola court was asked to declare just that, but it declined. San Francisco's "official misconduct" law is not unconstitutionally vague, it said, because the word "official" makes clear that there must be a "nexus" between the official's conduct and his duties of office:

[We] find the term "official misconduct" sufficiently specific to provide fair warning of that conduct which is prohibited. Additionally, by its very definition, there exists the requisite nexus between the act or omission and the position held.

In short, if no "nexus" were required, the law would be unconstitutional. If a nexus is required but it does not exist in a particular case, the law is constitutional but the official has not violated it. The Mazzola court held the latter was true in that case.

What sort of "relationship" between conduct and official duties is required? The Mazzola court gave a clear answer to that question, one that was cited by Mirkarimi's lawyers and with which Commissioner Hur agreed:

Mazzola cannot be legally guilty of official misconduct. Quite clearly, official misconduct requires a direct relationship of the alleged wrongdoing to the office held. … [The] charges against appellant had nothing to do with his official capacity as airports commissioner nor to the performance of his duties as such.

In other words, because the required "direct relationship" between his conduct and his official duties did not exist, Mazzola's conduct, wrongful or not, could not be considered "official misconduct" – even though he'd allegedly been involved in illegal activities that included tampering with air valves at San Francisco's airport. (Mazzola was not immune from prosecution for any criminal activity, of course, but criminal prosecutions are governed by the criminal laws, not by San Francisco's "official misconduct" law.)

Mirkarimi's lawyers argued that the same "direct relationship" requirement applies in this case, and Commissioner Hur agreed. Mirkarimi's lawyers pointed out that Mirkarimi's physical abuse of his wife had nothing to do with the performance of any official duties. Clearly he'd engaged in misconduct, for which he'd already been prosecuted, convicted and punished – but not "official misconduct" for which he also could be removed from office without voter approval. Commissioner Hur agreed with this too.

Mr. Renne, of course, considered it pointless to discuss "relationships" at all. The other three Commissioners disagreed with Mr. Renne about this, but they nonetheless reached the same conclusion in the case. Unlike the court in Mazzola, which first considered whether the required "direct relationship" between Mazzola's conduct and official duties had existed, and found it unnecessary to evaluate Mazzola's conduct once it determined such a relationship had not existed, Commissioners Liu, Studley and Hayon reasoned in the opposite direction. They started with Mirkarimi's misconduct on New Year's Eve – indeed, that was the principal focus of this entire proceeding – and determined that it had been sufficiently bad that Mirkarimi must be found guilty of official misconduct. Having reached this conclusion, they needed a legal rationale to support it. And so they reasoned backward from their conclusion to find what they considered a sufficient "relationship" between Mirkarimi's conduct and his official duties.

Mazzola appeared to stand squarely in their path, since Mirkarimi's New Year's Eve misconduct plainly had no relationship to his performance of any official duties. But there must be a way around Mazzola. Since they were confident their conclusion was correct – that Mirkarimi was guilty of "official misconduct" – and Mazzola made it impossible to reach that conclusion, it necessarily followed, as night follows day, that Mazzola must no longer be good law.

But since Mazzola had never been overruled, or even questioned, in any later case, how could it no longer be "good law?" Only one possible explanation remained: The law interpreted in Mazzola had since been changed, and that change must have undercut what the Mazzola court said about the required "relationship" between conduct and official duties.

The only relevant change in the law had been the addition of "falls below the standard of decency [etc.]" in 1995. But did that phrase really mean that "official misconduct" no longer requires any relationship between conduct and official duties? It certainly does not say so – everyone agreed on that. Although Mr. Renne interpreted this statutory silence to mean that no relationship was required, no one else agreed with him, not even Mayor Lee's attorneys. Nor did the legislative history shed any light. It had consisted solely of the 1995 voter pamphlet, which included no discussion at all, nor even a mention of Mazzola.

Commissioners Liu, Studley and Hayon nevertheless remained certain that Mr. Renne was right about this: The 1995 amendment had undercut Mazzola, even if they still could not explain how. Having run out of conventional legal arguments, they set out to prove their point in much the same way that physicists prove the existence of sub-atomic particles. No one has ever seen a Higgs boson particle, even under a microscope, but we know they exist because some indisputable scientific observation – a disturbance in an electro-magnetic field, for example – cannot be explained in any other way. Commissioners Liu, Studley and Hayon had no indisputable scientific observation, of course, but they felt they had something nearly as good: their moral certainty that Mirkarimi was guilty of official misconduct. Since this conclusion cannot be justified under Mazzola, and since Mazzola had never been overruled or even questioned in any later case, it followed – in their "backwards" reasoning – that the 1995 amendment of San Francisco's "official misconduct" statute must have eliminated the "direct relationship" requirement described in Mazzola, just as Mr. Renne had said.

Did this mean Mr. Renne had been entirely correct? Not quite. He had pressed his conclusion too far, to the point of unconstitutional vagueness. Commissioners Liu, Studley and Hayon knew they must stop short of that. They must acknowledge that some "relationship" between conduct and official duties is still required, yet insist that this relationship need not be so clear and direct as the Mazzola court had said is necessary. After all, to move too far away from Mr. Renne would be to concede that Mirkarimi's attorneys and Mr. Hur were correct, and Commissioners Liu, Studley and Hayon were certain they were not.

What they needed, therefore, was a defensible middle ground between Mr. Hur and Mr. Renne, a "relationship" test that could pass constitutional muster but was not so "performance-related" that Mirkarimi's New Year's Eve misconduct would fail to satisfy it. Finding no basis for such a "middle-ground" relationship test in the statute, its legislative history, or case law, they simply made one up – a brand new "relationship" test that struck them as sound and lay just where it needed to lie on the Renne-Hur spectrum: It is sufficient, they argued, that the conduct relate merely to the subject matter of one's official duties, even if it has nothing to do with the performance of those duties.

Having whisked away Mazzola's troubling "direct relationship" requirement and replaced it with their more promising "subject matter" test, Commissioners Liu, Studley and Hayon proceeded to examine three "relationships" between Mirkarimi's New Year's Eve conduct and his official duties that Mayor Lee's attorneys had insisted were sufficient to apprise city officials of what misconduct amounted to "official misconduct." The three Commissioners agreed, and so did Mr. Renne – hardly surprising, since he considered "relationships" unnecessary in the first place.

First, even though the Ethics Commission did not sustain Mayor Lee's "domestic violence" charge (Count 1), Mirkarimi's misconduct had occurred during a domestic dispute and it had involved violence (at least an arm-grab that caused a bruise, and some Commissioners suspected even more had occurred). The Police Department enforces domestic violence laws, of course, not the Sheriff's Department, which has no domestic violence-related responsibilities. Although some experienced Department employees have for many years voluntarily conducted a highly regarded inmate-rehabilitation program that includes domestic violence-related counseling, the Sheriff has never been personally involved in that program (though presumably he would be allowed to participate if he ever so desired). From time to time, however, the Sheriff does meet with other city officials and members of the anti-domestic violence community to discuss possible changes in San Francisco's domestic violence policies. On these bases, Mayor Lee's attorneys argued that a Sheriff has substantial domestic violence-related official duties and that Mirkarimi's New Year's Eve misconduct related to those duties.

A second "relationship" existed, Mayor Lee's attorneys argued. Though the Sheriff's Department does not enforce the criminal laws (the Police Department does that), or prosecute those who are arrested (the District Attorney does that), the Sheriff's Department does operate the city's jails. While Mirkarimi has never spent any time in jail, he nonetheless pled guilty to a misdemeanor for what he did on New Year's Eve. A misdemeanor is a crime. Many other people who have been convicted of a crime do spend time in jail. Thus, Mayor Lee's attorneys argued, Mirkarimi's New Year's Eve misconduct related to the jail-operating duties of a Sheriff.

Yet another "relationship" existed, Mayor Lee's attorneys argued. Mirkarimi's punishment included probation. Although decisions involving probation are made by a court or by the Adult Probation Department, not by the Sheriff's Department, the Sheriff's Department interacts regularly with the court system and occasionally with the Adult Probation Department. Thus, Mayor Lee's attorneys argued, a Sheriff has probation-related official duties. Because Mirkarimi was sentenced to probation for his New Year's Eve misconduct, that misconduct related to his probation-related duties.

One may fairly question whether such "relationships" adequately apprise an official of what conduct amounts to "official" misconduct – at least if the official has limited experience playing "The Six Degrees of Kevin Bacon." Does Mayor Lee really argue, for example, that "official misconduct" may include any and all conduct that might result in someone being put on probation, even purely personal misconduct totally unrelated to the performance of any official duties? If so, are Commissioners Liu, Studley and Hayon saying anything different from what Mr. Renne said? Is their new "subject matter" test so diluted that it amounts to no requirement at all – exactly what Mr. Renne insists? And if that is correct, does it not follow that all four Commissioners are interpreting San Francisco's "official misconduct" statute in a way that leaves it unconstitutionally vague?

I am confident a court will conclude just that. It will reject out of hand Mr. Renne's blatantly unconstitutional interpretation of the "official misconduct" definition. With just a bit more effort, it will reject also the "backwards reasoning" that led Commissioners Liu, Studley and Hayon, albeit less obviously, to the same unconstitutional conclusion.

But even in the unlikely event that a court agrees with Commissioners Renne, Liu, Studley and Hayon that Mazzola's "direct relationship" requirement no longer applies, and that their relaxed new "subject matter" test adequately apprises officials of what misconduct amounts to "official misconduct," Mirkarimi has a distinct argument that appears bullet-proof.

Whether one applies Mazzola's "direct relationship" test or the watered-down "subject matter" test that Commissioners Liu, Studley and Hayon created to replace it, the test inevitably requires a comparison of "conduct" to "duties of office." This requires both (1) that the individual have "duties of office;" and (2) that his misconduct relate to those duties. Both elements must be present. In Mazzola, only the second part of this two-part test was at issue, since Mazzola indisputably had "duties of office" as an Airport Commissioner. The court needed only to determine whether his strike-related conduct had related to those duties. (The court concluded it had not.)

In this case, the first part of the two-part test is principally at issue, at least with respect to Mirkarimi's status on New Year's Eve as "Sheriff" or "Sheriff-elect:" For each "office," the question is whether Mirkarimi had any "duties of office" to which his New Year's Eve conduct "related." The answer is "no" for both "offices." Mirkarimi had no "duties of office" on New Year's Eve as Sheriff, since he would not become Sheriff until eight days later. Nor did he have any "duties of office" as Sheriff-elect, since a Sheriff-elect has no "duties of office."

To a limited extent, the second part of Mazzola's two-part test is also at issue in this case, just as it was in Mazzola. Just as Mazzola had "duties of office" as an Airport Commissioner, Mirkarimi had "duties of office" as a Supervisor on New Year's Eve. He still had eight days left on his Supervisor term. But the Ethics Commission rejected Mayor Lee's charge based on Mirkarimi's Supervisor status (Count 6), which implies that Mirkarimi's New Year's Eve misconduct was not deemed to be "related" to his Supervisor duties of office.

To summarize, neither the performance-related "direct relationship" requirement laid out in Mazzola, nor the "subject matter" replacement proposed by Commissioners Liu, Studley and Hayon, was satisfied for any of the three "offices" that Mirkarimi held on New Year's Eve:

1. Sheriff: no "relationship" existed because Mirkarimi had no "duties of office" as Sheriff on New Year's Eve. He did not become the Sheriff until eight days later.

2. Sheriff-elect: no "relationship" existed because a Sheriff-elect has no "duties of office."

3. Supervisor: no "relationship" existed because the Ethics Commission's failure to sustain Count 6 implies that Mirkarimi's New Year's Eve misconduct was not deemed to be "related" to his duties of office as Supervisor.

More detail now. This table lists each "office" held by Mirkarimi on New Year's Eve (the only day on which misconduct was found to have occurred), and the Ethics Commission's related rulings on Mayor Lee's charges and the disputed facts:


Office Held
Mayor's Related Charge/Sustained?
If Sustained, Supporting Facts
Related Duties of Office
Supervisor (until Jan. 8)
Count 6 ("Breach of Conduct – Supervisor"). Not sustained.
N/A
N/A
Sheriff (from Jan. 8 on)
Count 5 ("Breach of Conduct – Sheriff and Sheriff-Elect"). Sustained to extent based on NYE physical abuse.
Physical abuse on NYE.
None (Mirkarimi did not become Sheriff until January 8).
Sheriff-elect (Nov. 8 to Jan. 8)
Count 5 ("Breach of Conduct – Sheriff and Sheriff-Elect"). Sustained to extent based on NYE physical abuse.
Physical abuse on NYE.
None (a Sheriff-elect has no duties of office).

Starting with "Supervisor," unquestionably Mirkarimi was a Supervisor on New Year's Eve, and Mayor Lee charged in Count 6 that his misconduct that day related to his Supervisor duties. But the Ethics Commission did not sustain Count 6, even though it was almost identical to Count 5, which the Ethics Commission did sustain. Counts 5 and 6 differed in only one respect: Count 6 (not sustained) was based on Mirkarimi's status as Supervisor, while Count 5 (sustained) was based on his status as Sheriff and Sheriff-elect.

Turning to "Sheriff," unquestionably Mirkarimi was not the Sheriff on New Year's Eve. Michael Hennessey was, and he would remain so until Mirkarimi was sworn in to replace him on January 8. The Ethics Commission did not find that Mirkarimi committed any misconduct while he was the Sheriff – or on any day other than New Year's Eve.


Necessarily, then, a great deal of weight must fall on Mayor Lee's argument that Mirkarimi's New Year's Eve misconduct related to his "duties of office" as "Sheriff-elect." This argument cannot bear that heavy weight, or any weight at all, for a simple reason: Someone who is elected Sheriff has no "duties of office" until he actually becomes the Sheriff.

The Ethics Commission did rule that Mirkarimi had certain official duties as a "Sheriff-elect" on New Year's Eve. It characterized this conclusion as a "finding of fact" even though it plainly was a legal conclusion that does not bind the Board of Supervisors or any court. Nor was that legal conclusion correct. Though Mayor Lee insisted a Sheriff-elect has "duties of office," neither he nor the Ethics Commission cited any authority for that, because there is none. A Sheriff-elect has no "duties of office" until he is sworn in as Sheriff. For Mirkarimi, that occurred eight days after New Year's Eve – the only day on which the Ethics Commission found that misconduct occurred.

Anyone who is elected Sheriff would be well-advised to prepare for his new job between election day and inauguration day (as Mirkarimi did, by all accounts). But he has no legal "duty" to do this. If he prefers, he may spend those two months sitting on the beach, or climbing Mt. Everest, or watching reruns of "I Love Lucy," as long as he shows up on time for his swearing-in ceremony two months later. Most of us would think poorly of him for not preparing. But no one would seriously suggest he'd committed "official misconduct," since he will have no "duties of office" until he actually takes office. Nor does such a person possess any authority until he takes office. If an impatient "elected but unsworn" Sheriff starts issuing orders to his future employees, for example, they may respond politely but will continue to take orders exclusively from their boss, the incumbent Sheriff – who probably will be annoyed at his successor for jumping the gun. In short, while Mayor Lee labeled Mirkarimi an "elected but unsworn" Sheriff on New Year's Eve, Mirkarimi in fact had no title, no duties, and no authority as Sheriff until his predecessor's term ended on January 8 and Mirkarimi was sworn in to replace him.

Mayor Lee has cited no case, in California or any other jurisdiction, in which a public officer was removed for official misconduct that occurred before he took office but after he was elected. Mayor Lee nevertheless warned of serious consequences if this long-standing rule is not changed in this case:

An officer-elect is a "public officer" who can commit and be removed for wrongful behavior during this post-election period. While Section 15.105(e) does not explicitly address this point, nothing in the Charter's suspension and removal provisions is to the contrary, and exempting public officers from removal for official misconduct until after they take the oath of office would be absurd. They could rob banks, steal cars, or mug old ladies on the way to their swearing-in ceremony with impunity – and immunity. (Mayor's Closing Brief in Ethics Commission Proceeding, at pages 8-9; emphasis added).

It is not clear how Mayor Lee's attorneys reached such an absurd conclusion. An officer-elect is no more "immune" than the rest of us to arrest and prosecution for such serious crimes – or for any crime at all – regardless of when the crime is committed.

Mayor Lee gave an additional reason why the "official misconduct" law should apply before an elected official actually takes office: Voters need protection against misconduct from election day forward, not merely from inauguration day forward. If a candidate misbehaves before election day, voters may (or may not) choose to elect him anyway. But the voters' choice disappears once election day has passed, and so someone elected to office must be subject to removal for "official misconduct" committed at any time after election day, not merely after he has taken office. That is the argument, but it has several fatal flaws.

First, the voters are entirely free to recall an official based on his misconduct between election day and inauguration day – or for any other reason, or for no reason at all. The voters never granted the unelected five-member Ethics Commission authority to make recall decisions for them. Its authority is strictly limited to a legal question: Did a public officer commit "official misconduct" as defined in City Charter Section 15.105(e), or didn't he? The Ethics Commission may not exercise authority it has never been granted by "upgrading" non-official misconduct to "official misconduct" merely because the Ethics Commission is confident – even certain – that voters would not have elected the official had they known what the Ethics Commission has since learned. That remains a political judgment for the voters alone to make, no matter how certain the Ethics Commission may be about what the voters would decide if asked again. When an Ethics Commission member says – as Commissioners Renne and Studley said on August 16 – that they must declare Mirkarimi's New Year's Eve behavior to be "official misconduct" because they are certain that voters are outraged and would not have elected Mirkarimi had they known about this beforehand, their motive may be pure: to spare voters the muss and fuss of a recall election. But they nonetheless are substituting their own political judgment for that of the voters. They have no authority to do that. That is what recall elections are for.

Second, if the Ethics Commission may find "official" misconduct based on conduct dating back to election day, what logically prevents it from reaching even farther back in time? What if the New Year's Eve incident had occurred instead on the day before the election, but the voters were unaware of it when they elected Mirkarimi? Would they be stuck with their decision? Based on Mayor Lee's "elected but unsworn" argument, the answer would appear to be "yes." But his election-day "bright line" is not always so bright. For example, in their September 25 brief to the Board of Supervisors (page 8, lines 16-17), Mayor Lee's attorneys wrote: "The purpose of the official misconduct section is to address misconduct that the voters never knew about." If voter awareness is what really matters, is there any sound basis for stopping the look-back at election day?

Whether or not it is proper to look back beyond election day, the Ethics Commission indisputably did so this time. Commissioners Studley and Liu freely admitted it. Each of them said her vote against Mirkarimi was based in part on her belief that other physical abuse had occurred eight months before he was elected. They cited Eliana Lopez' videotaped statement that "this is the second time," and her neighbors' declarations that Ms. Lopez told them she'd been referring to an incident in March 2011. Each neighbor acknowledged that Ms. Lopez had not described the March 2011 incident at all, and no evidence was introduced about what it had involved (except for Ms. Lopez' testimony that it had been a bitter verbal argument, not physical). Neither Ms. Studley nor Ms. Liu mentioned what she suspected had happened, just that she believed some physical abuse had occurred – eight months before Mirkarimi had become even an "elected but unsworn" official, ten months before he actually took office.

Mss. Studley and Liu, and possibly other Commissioners, may have looked even farther back in time. For example, they also may have relied on the testimony of Christina Flores, Mirkarimi's long-time girlfriend just before he met Eliana Lopez. Though Ms. Flores acknowledged that she had never mentioned this publicly or privately before then, she swore in March 2012 that Mirkarimi had grabbed and bruised her arm back in 2008 – just as he had done to Ms. Lopez on December 31, 2011, two months before Ms. Flores testified. No Commissioner acknowledged having believed Ms. Flores, but all of them were aware of her claim. Over Mirkarimi's strong objection, the Commission had accepted Mayor Lee's argument that Ms. Flores' arm-grab claim, though it involved alleged conduct back in 2008, might be relevant "to helping the Commission to determine the severity of the conduct on December 31, 2011 and to the extent it may impeach the Sheriff's testimony." (Concerning "impeachment," Mayor Lee's attorneys did not even mention Ms. Flores or her arm-grab allegation when they cross-examined Mirkarimi, nor did his own attorneys bring it up.) Although the Ethics Commission carefully trimmed other witness declarations by striking irrelevant material, Ms. Flores' full two-volume description of her four-year relationship with Mirkarimi was posted on the Ethics Commission's website, unedited. It remains there today as part of the permanent official record in this proceeding.

If a mayor may introduce evidence of conduct from eight months before an official is elected, and from three years before that, is there any rationale for limiting how far back in time he may go? Suppose Mirkarimi had offered testimony from his girlfriend preceding Christina Flores (as he reportedly considered: Evelyn Nieves) who would swear that he never exhibited violent tendencies during their seven years together. Would that have been admissible to counter Ms. Flores' arm-grab allegation? If so, what if Mayor Lee had then located an even earlier Mirkarimi girlfriend, perhaps from his high school days, who offered to testify that he'd bruised her arm too? Would there be any sound basis for excluding her testimony – or, for that matter, any other evidence dating back to Mirkarimi's birth?

One hopes the fatal weaknesses of this "elected but unsworn" argument are now evident. If so, since the Ethics Commission rejected Mayor Lee's Count 6 (based on Mirkarimi's Supervisor status), and Mirkarimi was not the Sheriff on New Year's Eve and was not found to have committed any misconduct after that day, and Mirkarimi had no "duties of office" as "Sheriff-elect" on New Year's Eve, what is left to justify the Ethics Commission's ruling that the New Year's Eve incident was "official misconduct?"

Each Commissioner who voted against Mirkarimi dealt differently with the critical "timing" issue.

For Commissioner Renne, it was enough that Mirkarimi's New Year's Eve conduct fell below the "standard of decency" language added in 1995. He attached no significance to the fact that Mirkarimi's misconduct occurred before he became Sheriff, which suggests Mr. Renne considered the timing to be irrelevant – just as he considered it irrelevant whether Mirkarimi's misconduct related to any duties of office.

Mr. Renne belatedly acknowledged the critical "timing" issue on September 11, 2012, when the Ethics Commission met to hammer out the precise language of its findings of fact and recommendations to the Board of Supervisors. He tried diligently, but unsuccessfully, to patch up a large hole he had noticed in the Commission's August 16 ruling:

The second suggestion that I had goes to Item Number 7 [of] the findings of fact, which just said "March 12, 2012, Sheriff Mirkarimi pled guilty to the crime of false imprisonment of his spouse." … I would add: "and was sentenced to [terms of Mirkarimi's sentence]. It is this conviction and sentence which brings the misconduct within the time period when he was officially the Sheriff." And my concern here is that one of the issues raised by the Sheriff – and I think justifiably, because it is a legal issue that at some stage may need to be resolved – is [that] the conduct occurred before he became Sheriff, and, without the conviction occurring during his tenure, there might be some real difficulty in saying that that conduct could constitute official misconduct. But having pled guilty to false imprisonment – that, I think, [disposes of any] defense you have that the conduct occurred outside the time that he held the office of Sheriff... I want to make it clear that we recognize that's an issue, and that is, at least in my mind, how that issue gets resolved.

(See video of September 11, 2012 Ethics Commission meeting (no written transcript was made) at http://www.sfethics.org/ethics/2011/12/ethics-commission-meeting-recordings.html, beginning at approximately minute 25; emphasis added.)

Mr. Renne withdrew his request to add the new sentence ("It is this conviction [etc.]") after Mr. Hur objected on the ground that this had not been discussed, much less approved, at the August 16 hearing. It was appropriate for Mr. Hur to object, though it would not have mattered if Mr. Renne's proposed language had been added. It would have been a legal conclusion, not a finding of fact (as Mr. Renne himself acknowledged), and would not have bound the Board of Supervisors or any court. Nor would that legal conclusion have been correct – as explained above and repeated here for the reader's convenience:

A conviction is a judicial determination that the defendant committed a crime in the past. The making of that determination is not new misconduct by the defendant. Nor does a conviction become new misconduct merely because it results from a guilty plea (as in Mirkarimi's case) rather than a trial. To distinguish between those two bases for a conviction would discourage guilty pleas, which the criminal justice system strongly encourages. City Charter Section 15.105(c) does say that conviction of "a felony crime involving moral turpitude" is a ground for removal, even if the felony was committed before the official took office. In that situation (only), the statute does treat a conviction as new misconduct, distinct from the crime. But Section 15.105(c) is limited to serious felonies, not misdemeanors. Mirkarimi was convicted of a misdemeanor. He was never even charged with a felony.

What is most important about Mr. Renne's effort, successful or not, is that he recognized the "timing" problem. His proposal would not have solved it.

Ms. Hayon, the only non-lawyer Commissioner, didn't address the "timing" issue at all, or any other legal issues. She explicitly deferred to the lawyers on the Commission, and simply sided with the majority on every finding of fact and legal issue.

Ms. Liu generally did consider legal issues carefully, but not this critical "timing" issue. She claimed to find a sufficient relationship between Mirkarimi's New Year's Eve misconduct and a Sheriff's domestic violence-related activities, and between his misdemeanor conviction and the Sheriff's duty to operate the city's jails. She apparently did not believe it mattered that Mirkarimi was not yet Sheriff on New Year's Eve – much less in March 2011, the date of another alleged incident that Ms. Liu expressly cited as a basis for her decision.

To be fair to Commissioner Liu, she did at least address the "timing" issue in Mazzola, though not adequately. She pointed out to Mirkarimi's lawyer, Shepard Kopp, that the Mazzola court concluded the "requisite nexus" between conduct and duties of office did not exist because Mr. Mazzola's alleged misconduct during the strike was not sufficiently "related" to his Airport Commission duties. The court did not explicitly say (other than in dicta) that Mr. Mazzola had to be in office when the misconduct occurred:

Well, wasn't Mazzola really addressing the question of the relationship of his job as a commissioner versus his job as a business agent of the union? I mean, that's a relationship question, not a timing, while-somebody-is-physically-in-office question.

(See August 16 hearing transcript, at page 1485, line 25 to page 1486, line 1.)

What Ms. Liu ignored is that the Mazzola court had both of the two "items" that must be compared to determine whether a sufficient "relationship" exists – conduct and duties of office – only because Mr. Mazzola was in office when his alleged misconduct occurred. Had he not been in office, it would have been impossible to make the required comparison because he would have had no "duties of office" to which his alleged misconduct could be compared. Since "duties of office" must exist for the required comparison to be made, and an individual has "duties of office" only if he is in office, it follows that an official must have been in office when the misconduct occurred. If he is not, his conduct may be "misconduct" – possibly punishable under the criminal laws (as Mirkarimi's misconduct was), possibly enough that the voters will decide to recall him – but it cannot be "official" misconduct for which he may be removed by the Ethics Commission and Board of Supervisors without voter approval.

This may strike some readers as too-clever logic, but it is straight-ahead, plodding logic. And it is supported by the case law – more accurately, by the absence of case law to the contrary. Mayor Lee has not cited a single case, in California or any other jurisdiction, holding that an official may be removed for official misconduct based on conduct that occurred before he took office. He insists that courts' failure to state explicitly that an individual must be in office means that courts do not think this matters. The more likely explanation is that the issue simply has not arisen because "official misconduct" cases have been brought only against officials who were in office when the misconduct occurred. It would be interesting to read what a court had to say in a case brought against an official who was not. But Mayor Lee has not cited such a case. Possibly his lawyers have not looked hard enough. More likely, there are no such cases to be found.

This should not become the first one, no matter how much Mayor Lee might want it to be. The only office Mirkarimi held on New Year's Eve was Supervisor, and the Ethics Commission declined to sustain Mayor Lee's charge based on Mirkarimi's Supervisor status (Count 6). The Ethics Commission sustained Mayor Lee's charges based on Mirkarimi's status as "Sheriff and Sheriff-Elect" (Counts 4 and 5), but those legal conclusions were incorrect because Mirkarimi had no "duties of office" in either status on New Year's Eve: He was not yet the Sheriff, and a Sheriff-elect has no duties of office.

Among the four Commissioners who voted against Mirkarimi, Ms. Studley appeared to have given the most thought to the "timing" issue. She offered an imaginative solution. During an earlier hearing, Ms. Studley had expressed tentative agreement with an observation that Commissioner Hur made then and made again on August 16 (though Ms. Studley apparently had changed her mind about it in the meantime). Mr. Hur acknowledged that Mirkarimi would have a difficult time performing his job effectively because so many city employees and others were understandably upset about his New Year's Eve misconduct. Nonetheless, Mr. Hur rhetorically asked, even if these predictions come true, where would his "misconduct" be found? Under any definition, "official misconduct" requires wrongful "conduct," not merely a reduced level of performance – even if that reduced performance results from the official's own misconduct before taking office.

Ms. Studley claimed to have an answer for Mr. Hur. When determining whether conduct amounts to "official" misconduct, she argued, it is fair to insist that the actor consider whether his conduct will adversely affect the performance of his official duties in the future. If so, the official can fairly be held to have committed official misconduct when he engages in that conduct, even if the conduct does not violate any actual "duties of office" when he engages in it. Ms. Studley referred to this as a "going forward" element in the analysis of conduct. Thus, even though Mirkarimi had no "duties of office" as Sheriff on New Year's Eve, he should have predicted that his misconduct that day would adversely affect the performance of his official duties after he became Sheriff eight days later. Therefore, his New Year's Eve conduct was "official misconduct" on New Year's Eve, even though he was not actually Sheriff on New Year's Eve and had no actual "duties of office."

Ms. Studley gave an example: Suppose San Francisco's District Attorney testifies falsely in an unrelated family lawsuit in another jurisdiction. This would not prevent him from performing his duties in San Francisco. But he might be a less effective District Attorney because witnesses in his cases might be less inclined to tell the truth if they learn he has lied under oath. While testifying falsely might not be "official misconduct" for, say, a Recreation and Parks Commissioner, it should be considered "official misconduct" for a District Attorney, no matter where or when it occurs, because truthful testimony is germane to a District Attorney's official duties. Therefore, in this example, the District Attorney committed "official misconduct" when he testified falsely in that unrelated family lawsuit in another jurisdiction.

Ms. Studley's example ignores a key difference from this case that highlights the "timing" issue. Her hypothetical District Attorney is actually the District Attorney when he testifies falsely. Suppose instead that he was not due to be sworn in for another week and thus had no "duties of office" when he testified falsely. Would Ms. Studley say he was guilty of "official misconduct" on the day he testified falsely because he knew then that he would soon become San Francisco's District Attorney, even though he held no actual office on that day? Or would he be innocent when he testified falsely, but later become guilty of "official misconduct" retroactively when he was sworn in, based on what he'd done before taking office? I do not know which answer Ms. Studley would give, or whether there is a third possibility. Whatever her answer might be, however, her hapless District Attorney would end up being punished for conduct that occurred before he had any "duties of office" at all.

There are additional flaws in Ms. Studley's proposed "going forward" analysis. Because she insists that determining the legality of an official's conduct requires us to consider what his official duties might be in the future, this possibility follows: If two individuals hold exactly the same office and engage in exactly the same conduct, one of them might be guilty of official misconduct while the other is not. Suppose, for example, that two Supervisors are out drinking together one evening and each of them is arrested for driving home (separately) while intoxicated. The first Supervisor has recently been re-elected. The second Supervisor has just been appointed Chief of Police. Each of them will be sworn in next week. Which Supervisor is guilty of official misconduct under Ms. Studley's analysis? Both, since they did the same thing? Or just the new Police Chief, since an important duty of the Police Department (but not the Board of Supervisors) is to arrest drunk drivers? If only the second Supervisor is guilty, what happens if he resigns as Police Chief after three months in office and the mayor appoints the first Supervisor to replace him? Will the first Supervisor retroactively become guilty of official misconduct, even though he'd been innocent until then? What if the resigning Police Chief runs for Supervisor again and wins – will he retroactively become innocent?

It should be clear from these hypotheticals – and many more could be added – that it is inappropriate to judge an official's conduct based on his anticipated future duties. He may fairly be judged based solely on the relationship between his conduct and his "duties of office" at the time he engages in the conduct. If he has no "duties of office" at the time, no such "relationship" possibly can exist. He may be guilty of misconduct for which he should be punished criminally (as Mirkarimi was) or recalled by the voters, but he cannot be guilty of official misconduct for which he may be removed from office without voter approval.

Conclusion

Ross Mirkarimi was prosecuted, convicted, sentenced and punished for what he did on New Year's Eve, and very few people disagree that he deserved that punishment. On the surface, the question here is merely whether he should be punished further by being removed from office. But the real question involves more than the fate of Ross Mirkarimi. If the Supervisors approve what the Ethics Commission did on August 16, they will be handing a powerful new political weapon to all mayors, present and future. Good mayors may never misuse it, but other mayors might. No longer will such a mayor be limited to examining an opponent's conduct while in office. He will have carte blanche and a strong motive to look farther back in time for personal misconduct that occurred before his opponent took office, and to use what he finds to suspend his opponent without pay and remove him from office – all while claiming (as undoubtedly he will) to be engaged in a noble pursuit of truth and justice.

The Supervisors understandably may feel that Ross Mirkarimi deserves to be removed from office. This proceeding may strike them as a convenient way to accomplish that. And there may be no practical downside: it is possible, after all, that Ross Mirkarimi will be the first and last elected official who is ever removed for official misconduct that occurred before he took office. But it is far from clear why the Supervisors would choose to take that chance – especially since there is a straightforward and democratic alternative for which they can never be second-guessed: a recall election, which no court can nullify.

The Supervisors should make that choice here: Let the people who put Mirkarimi in office decide whether they want to remove him or keep him. Ask them – don't decide for them.


Afterword


A special meeting of the San Francisco Board of Supervisors was held on October 8, 2012 to vote on the Ethics Commission's August 16, 2012 recommendation that Ross Mirkarimi be removed from office for official misconduct. The recommendation was not approved. Mirkarimi was reinstated with back pay to serve the remainder of his four-year term.


-- Eric A. Brill

The author is an attorney in San Francisco.