Mirkarimi files court petition challenging his suspension

03.27.12 - 12:33 pm | Steven T. Jones |

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Mayor Ed Lee abused his discretion in suspending Ross Mirkarimi without pay, a new legal brief contends.

Luke Thomas/Fog City Journal

Suspended Sheriff Ross Mirkarimi and his new attorney, David Waggoner, today turned to the courts for help, alleging in a petition that Mayor Ed Lee abused his discretion in suspending Mirkarimi without pay, deprived him of due process rights, and relied on untested language in the City Charter that they say is unconstitutionally vague.

They are asking the court to reinstatement Mirkarimi pending official misconduct hearings that would take months, or to at least allow his family to continue to receive his $199,000 salary. “It makes it more difficult for the sheriff to fight these charges when he's suspended without pay or due process,” Waggoner told us, adding that he expects a hearing to be scheduled in two to three weeks.

Mayor Lee brought official misconduct charges against Mirkarimi a week ago and since then has refused to answer questions about the issues his action raises (which we explore in this week's Guardian). Among those issues is whether Mirkarimi's plea to a misdemeanor count of false imprisonment, involving a conflict with his wife, relates to his official duties and rises to the level of official misconduct.

The city's last official misconduct proceedings, brought in the 1970s against Airport Commissioner Joe Mazzola, was overturned by the state Court of Appeal, which found that Mazzola's actions (refusing to order striking plumbers in his union back to work) weren't related to his official duties. Waggoner relies on that ruling in arguing Lee abused his discretion.

“The official misconduct must occur while the official is in office and be directly related to that office,” the brief contends, noting that the alleged domestic violence incident occurred before Mirkarimi was sworn in a sheriff.

In suspending Mirkarimi, Lee relies on new official misconduct language since the Mazzola incident, during the last charter overhaul in 1995, when catch-all language was added banning, “conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers.”

Waggoner says that is unconstitutionally vague and he is seeking to have the court invalidate it. “Ultimately, it's a legal issue at this point,” Waggoner told us. “Is what the mayor accused Ross Mirkarimi of official misconduct or not?”

Comments

But there was misconduct since Ross was sworn in.

He lied, obfuscated, bickered, slandered others and acted with a wretched indifference to both the dignity of his office and common humanity.

Let Ross rot.

Posted by Guest on Mar. 27, 2012 @ 12:48 pm

If lying, obfuscation, and

If lying, obfuscation, and all those things were enough to qualify as misconduct, you'd have to remove nearly every politician from office. The 14th amendment doesn't allow you to selectively attack your political opponents and turn a blind eye to the offenses of your allies.

Posted by Guest on Mar. 27, 2012 @ 1:32 pm

Ouch! And so true.

Ouch! And so true.

Posted by Guest on Mar. 27, 2012 @ 1:56 pm

Unfortunately the 14th

Unfortunately the 14th amendment, from the way that I understand it, has little to do with enforcement and a lot to do with crafting laws that treat everyone equally, don't discriminate based on race. Equal protection under the law applies to the letter of the law, not the consistency of the enforcement of the law.

Posted by marcos on Mar. 27, 2012 @ 5:24 pm

The Law of the Plague by Diamanda Galas

The Law of the Plague by Diamanda Galas

When any man hath an issue out of his flesh.
Because of that issue he is unclean.
Every bed whereon he lieth is unclean
and everything whereon he sitteth, unclean.
And whosoever toucheth his bed shall be unclean,
And he that sitteth whereon he sat shall be unclean.
And he that toucheth
the flesh of the unclean
Becomes unclean.
And he that be spat on by him unclean
Becomes unclean.
And whosoever toucheth anything under him
shall be unclean.
And he that beareth any of those things
shall be unclean.
And what saddle soever he rideth upon is unclean
And the vessel of earth that he toucheth, unclean.
And if any man's seed of copulation go out from him,
he is unclean.
Every garment, every skin whereon is the seed, unclean.
And the woman with whom this man shall lie
shall be unclean.
And whosoever toucheth her will be unclean.
This is the law of the plague:
to teach when it is clean and when it is unclean.
And the priest shall look upon the plague
for a rising, and for a scab, and for a bright spot.
And the priest shall shut up he that hath the plague.
He shall carry them forth to a place unclean.
He shall separate them in their uncleaness.
This is the law of the plague:
To teach when it is clean and when it is unclean.

Posted by Guest on Mar. 27, 2012 @ 12:55 pm

ack! spare us puritanical poetry

a perverted mind see only perversion

Posted by Guest on Mar. 27, 2012 @ 3:49 pm

Whatever CW Nevius says, do

Whatever CW Nevius says, do the opposite.

Posted by Guest on Mar. 27, 2012 @ 1:21 pm

I'm not sure that Mirkarimi

I'm not sure that Mirkarimi has a worse enemy than himself.
He created this mess. Yes the press has had an absolute field day with it, but he created the mess in the beginning.
His latest attempt should be the final proof needed that he does not take the charges, or the procedures seriously. I can understand that the pay issue is a hardship for him, but he's been charged with misconduct and suspended. If I get suspended without pay from my job, I dont say "ok, but can I please still have my pay?"

Backing up a bit, I see that its been Mirk's MO to try and get charges thrown out. That didnt work for his trial, and gave a lot of people a sour taste in their mouths for him - lets see how he does this time..

Posted by Not Greg on Mar. 27, 2012 @ 1:34 pm

I think the Written Charges

of Official Misconduct that were served pretty much answers your questions regarding "whether Mirkarimi's plea to a misdemeanor count of false imprisonment, involving a conflict with his wife, relates to his official duties and rises to the level of official misconduct" at least so far as the mayor is concerned.

But, there is still a valid question as to whether the misconduct actually does even have to relate to his official duties, as you know bc you read the Written Charges.

Personally, I think that if that nexus doesn't need to exist, RM is on very, very thin ice. If it does need to exist, I think a lot of what the City Attorney wrote (paragraph 30) is pretty flimsy, but some of it, such as allegedly dissuading witnesses from providing info to law enforcement, and encouraging distruction of evidence, could be tough to overcome, seeing as how he's the Sheriff.

Is the Ethics Commission the finder of fact here on issues like this? And whatever happend to the 5 day rule? Who waived that??

Posted by DanO on Mar. 27, 2012 @ 1:36 pm

I personally feel the nexus

I personally feel the nexus definitely has to exist and I think every judge above the level of SF Appellate feels the same as me.

Posted by Guest on Mar. 27, 2012 @ 1:49 pm

Stop calling the DV charges "allegations."

Ross has admitted and plead guilty to one of those charges. You're doing him no favors with this kind of commentary Steven. Not at all.

Ross may have a case on the merits of the Court of Appeals decision concerning Moscone and Mazzola. But what you fail to address is this: is what Ross doing good for the city, for the progressive movement, for his family or for himself? Categorically - on all four counts, Ross is doing extreme damage to himself and everyone and everything around him.

Is this all about the money? So far the main justification I keep hearing about Ross' never-ending appeals to keep his job is that he needs the money from his salary. Has anyone discussed the fact that if he keeps this up he may lose his pension as well? No job, wrecked political career and no pension on which to retire. He really needs to stop this shit soon.

Posted by Troll II on Mar. 27, 2012 @ 1:51 pm

Running from exaggerated,

Running from exaggerated, over charged allegations based on really flimsy evidence apparently at least partially manufactured by long time political rivals will do Progressives far more harm than aggressively fighting because it encourages the billionaires behind this charade to keep on doing it.

This is about cheapskate 1% not wanting to spend the million dollars for a recall.
Obviously.

Posted by Guest on Mar. 27, 2012 @ 2:04 pm

Clearly what happened here,

Clearly what happened here, is that someone from the SF group of the nations 1% forced Mirkarimi to have a fight with his wife, bruise her arm, fight all allegations, and plead out in court.

Mirkarimi had nothing to do with any of what happened. It has all been manufactured by rivals seeking to remove him from his lame duck position as sheriff.

Posted by Greg on Mar. 27, 2012 @ 2:18 pm

Tell the Fire Chief.

Tell the Fire Chief.

Posted by Guest on Mar. 27, 2012 @ 2:26 pm

The argument that if one

The argument that if one person got away with something that someone else should as well is the argument of a child.

Posted by Greg on Mar. 27, 2012 @ 3:00 pm

That the mayor removed the

That the mayor removed the sheriff without also removing the fire chief shows what a lie this whole thing really is.

Posted by Guest on Mar. 27, 2012 @ 6:03 pm

Right, because these were

Right, because these were decisions which didnt span the period of TWO different mayors?

Posted by greg on Mar. 27, 2012 @ 7:53 pm

People are pretty well

People are pretty well convinced this would get laughed out of court anywhere except San Francisco which is why it is so vital to make sure there is no money to get it to appeal.

This is standard M.O. around these parts. As long as they are dealing with parties without the resources to appeal, the SF Judiciary does what it wants.

Posted by Guest on Mar. 27, 2012 @ 2:08 pm

SF Board of Supervisors should reject Lee's Powergrab

... Um, this was over a week before he even took office, and clearly does
not rise to the level of official anything, conduct or misconduct..
Lee has no legal authority for this move…the “official duties” context is much
too vague to apply in this case. Lee has no ethical or moral authority here either--to stop this elected official from being paid, and therefore actually harming the ones he is supposedly protecting here..Stopping Ross’s family from Re-uniting , and preventing him providing for his little boy. Shame!

Posted by Guest -- Cal on Mar. 27, 2012 @ 3:13 pm

Argument boils down to - Ross needs money

So stop these proceedings so he can start pulling his paycheck again!

Posted by Troll II on Mar. 27, 2012 @ 3:23 pm

Ross wants to start getting city money again so that he can use

it to have more legal fights with the city.

Progressives will do anything as long as it is on the public dime.

Posted by Guest on Mar. 27, 2012 @ 4:10 pm

looks like

the City Attorney disagrees with you.
and if in fact RM tried to get witnesses not to testify or to destroy evidence, that is official misconduct whether he did it as Sheriff or if he was still on the BOS

Posted by guest on Mar. 27, 2012 @ 3:24 pm

I meant to say the Court of Apeals should Overturn .

Well of course I meant to say the Court of Apeals should be done with these nonsense suspension penalties immediately…the SF charter language allows for potenial abuses you could drive a Bus through. An overzealous DA or Mayor could use this to unfair advantage.

The evidence tampering allegations were just air. nothing there.

Posted by Guest -- Cal on Mar. 27, 2012 @ 4:03 pm

Only in San Francisco

Remember that Mirkarimi was Sheriff-elect, not a candidate, when the crime was committed, but most importantly was the sitting sheriff when he pleaded guilty. The conviction is the key point here. Pleading guilty to a crime of this nature may not be sufficient grounds for removal of a supervisor, but it certainly is for a sheriff. I'd venture to say that in California's 57 other counties the sheriff would have had the common decency to resign, but absent that there wouldn't be any hand-wringing about removing him from office. Mirkarimi is not just an elected official, he's a sworn law-enforcement executive. He must adhere to, and be held to, a higher standard. He doesn't get that - to him it's another elected position and a paycheck. He has lost his moral authority to lead the Sheriff's Department. How can he discipline or even terminate one of his deputies for similar conduct in the future? If you wonder why we are often held up as a laughingstock, this is a prime example.

Posted by Guest on Mar. 27, 2012 @ 4:28 pm

LEOs and the law

Whether or not cops should be held to higher standard (something I happen to agree with), legally they actually how more power to resist removal thanks to the Peace Officers Bill of Rights, implications of which we discuss in the Guardian that comes out tomorrow.

Posted by steven on Mar. 27, 2012 @ 4:49 pm

Steven, it is axiomatic that a higher standard applies.

The person in charge of prisons has admitted false imprisonment

The person in charge of probation is on probation.

If these were charges unrealted to his duties, you might have a point. but they are central to them. Breaking a law counts against a LE officer far more than, say, a clerk in the DBI or Muni.

Posted by Guest on Mar. 27, 2012 @ 5:15 pm

Tell the Fire Chief.

Tell the Fire Chief.

Posted by Guest on Mar. 27, 2012 @ 6:05 pm

restorative justice and redemption

To destroy a lifetime of work and a family because a mob mentality has been unleashed is outrageous. The punishment must fit the crime - Ross took reponsibility and the court handed down a sentence that is harsh enough. A sheriff on probation- why not- we are SF and many of us believe in restorative justice and opportunity for redemption. The court didnt require the man to lose his job over this, and I do not believe he should be removed by the mayor.

Posted by Guest on Mar. 27, 2012 @ 9:23 pm

Agreed

Let's wait for the coming recall to remove him.

Posted by Troll II on Mar. 27, 2012 @ 9:57 pm

When 2 and 2 equals 22 but certainly not 4.

Jason Grant Garza here ... WOW, today my comments rests with the ETHICS COMMISSION (ha,ha,ha) that has to followup on this. I just want to be sure because I've had many items sent to the ETHICS COMMISSION regarding "OFFICIAL MISCONDUCT" from the SUNSHINE TASK FORCE (MINISTRY of SUNSHINE) that were shot down. They had rules and procedures in place for this ( the sandbagging of the item) so why don't they have something in place for this? I mean if the language was created was not the enforcement (or was that just an illusion) as it has consistently shot down the SUNSHINE task Force's Official Misconduct referrals.

Type my name into a google search engine and read here in the SF BAY GUARDIAN an article about me, what I went thru in sunshine, the NO RESULTS of telling the "TRUTH" to officials (who tried to risk manage the HARM and DAMAGES away), the court case (C02-3485PJH) where the city lied to have my case dismissed and then years later signed a confession *settlement agreement) with the OFFICE of INSPECTOR GENERAL admitting fault and guilt ...paying a small fine to the GOVERNMENT and leaving its INNOCENT VINDICATED VICTIM for DEAD to "TWIST in the WIND."

ETHICS at the ETHICS COMMISSION ... what a FARCE ... they need procedures ... weren't they in place for the SUNSHINE referrals ... didn't the SF BAY GUARDIAN and SF Civil Grand Jury have something to say about this and WHY are they NOT pointing this out? Where was or are mine and the compliantants' RIGHTS at SUNSHINE for "EQUAL PROTECTION" if the process and procedures are being created for this ETHICS hearing on Ross ... HOW LONG has SUNSHINE been on the books and what does mean regarding its ENFORCEMENT ... could it cleverly be a "RISK MANAGEMENT" shill for the city to tire, exhaust, remove hope from the VICTIM to proceed? How much MONEY $$$ must the rigged and inhumane process be saving the city when poor ordinary folks have no recourse and only false unaccountable hope at the MINISTRY of SUNSHINE and its "RIGGED" counterparts at ETHICS? I wish I had had a job that paid 199K to get a lawyer ... instead I had the lousy only option of going to SUNSHINE and having the system FAIL.

By the way ... isn't Scott Wiener Office looking into SUNSHINE's costs ... too bad they cut me off ... isn't David Chui's office working on CIVIL GUIDEON ... oh, that's right ... not for these type of cases which EXPOSE the TRUTH of the corrupt and unaccountable systems and methodology set in place for the poor and naturally the "other system" for those who can afford JUSTICE and JUST THIS for the rest of us who can not.

Let us look at the SF BAY GUARDIAN article regarding SUNSHINE referrals to ETHICS ... why aren't they asking why NOW regarding ETHICS problems following its procedures and practices set in place for "OFFICIAL MISCONDUCT: especially over the last ten (10) years of referrals by the SUNSHINE TASK FORCE ... yes, Virginia ... hand in hand the deception goes on ... please SF BAY GUARDIAN ask.

Posted by Jason Grant Garza on Mar. 28, 2012 @ 8:56 am

Well, ultimately it all boils

Well, ultimately it all boils down to how the court views the matter. Even though his actions were committed way before he was sworn in a sheriff, but a crime is still a crime and justice needs to be served. However, perhaps the sentence should be perceived differently and Mirkarimi should be judged as a civilian since the domestic violence occurred before he became a law enforcer. I am obviously against criminal offences but let's just hope his attorney could figure out a way to recoup Mirkarimi's lost wages, not for his personal gains but for his family who deserves compensation.

Posted by Victoria on Jan. 02, 2013 @ 10:26 pm