by Larry Bush on 01/24/2012

in Paper Trails

Mayor Ed Lee’s statement that he will call Sheriff Ross Mirkarimi to ask him about his ability to perform his job may be as much a nod to the legal realities as it is to the mayor’s reputation for civility.

While editorial writers and others have pushed for the “suspension option,” that may be off the table.  Court decisions and the city’s charter suggest that the test for suspending a city official hasn’t been met in Sheriff Mirkarimi’s case.

Several points stand out:

  • “Official Misconduct” as grounds for suspension, according to a California Court of Appeals decision, requires that the conduct involve acting in an official capacity.
  • “Official Misconduct” might be invoked in the case of a felony conviction, but a misdemeanor charge, not a conviction, falls well short of that standard.
  • Past practice at the Sheriff’s Department, according to former Sheriff Mike Hennessey, has not involved suspending deputies in misdemeanor cases including cases involving domestic violence.
  • The San Francisco Ethics Commission, the first stop in a suspension process, hasn’t been able to meet the Charter’s requirement of holding a hearing within five days after being notified by the Mayor. In the case of former supervisor Ed Jew, the commission went three months without hearing the case until finally Ed Jew himself resigned and pled guilty to a felony.

City Charter Set Standard in Ed Jew Case

San Francisco’s charter sets conditions on when a city official can be suspended. It requires that there be “Official Misconduct” which in turn requires that the action have been taken in an official capacity. It would not appear to include actions that were not official in nature.

For a suspension for crimes, the charter states that it involves conviction for a felony and it is a felony for moral turpitude.

Sheriff Mirkarimi’s situation falls well short of that standard. There are no allegations that he acted in an official capacity, he has not been convicted or even charged with a felony.

Voters approved those provisions in November 2003 as Proposition E as a charter amendment, although they incorporate longstanding charter language.

Then-mayor Gavin Newsom relied on those standards when he submitted a suspension for former supervisor Ed Jew in September 2007.

Newsom charged that Jew’s failure to reside in his supervisorial district while voting on the Board represents Official Misconduct because the charter required him to be a resident of his district.

In a response to Jew’s claim that the mayor had not met the charter’s test, the mayor responded more fully:

“Charter Section 15.105(e) contains an extremely broad definition of “official misconduct” that includes “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….”.

Although Jew had signed a statement under penalty of perjury that he was a legal resident of his district at the time he became a candidate, close observers noted that this was not included in the mayor’s suspension because as a candidate he was not acting as an official.

An earlier court test of Official Misconduct laid down the test that the mayor relied on in 2007.

California Court of Appeals Ruling Sets Precedent

In 1976, then-mayor George Moscone removed Joseph P. Mazzola from his position as an Airport Commissioner, a decision that was then endorsed by the Board of Supervisors. The charge was Official Misconduct.

In a 1980 ruling, the California Court of Appeals reversed Mazzola’s removal, stating that the actions involved were not undertaken as a city official.

” Official misconduct” as the term is used in a section of the Charter of the City and County of San Francisco relating to removal or suspension of officials is not unconstitutionally vague so as to deprive one charged thereunder of due process.

 “The term is the virtual equivalent of the words “misconduct in office,” used in the state Constitution, and it is defined as any unlawful behavior by a public officer in relation to the duties of his office, willful in its character, including any willful or corrupt failure, refusal, or neglect of an officer to perform any duty enjoined on him by law; it includes any willful malfeasance, misfeasance or nonfeasance in office. Thus it is sufficiently specific to provide fair warning of that conduct which is prohibited and, by its very definition, there exists the requisite nexus between the act or omission and the position held.”

The Court of Appeals then applied this standard to the Mazzola removal.

 “Quite clearly, official misconduct requires( **133] a direct relationship of the alleged wrongdoing to the office held. In addition, a specified statutory violation is normally the basis for charging an official with misconduct in office. (See Witkin, supra, §872, pp. 816-819.)”

 “In the instant case, the charges against appellant had nothing to do with his official capacity as airports commissioner nor to the performance of his duties as such.”

Hennessey Practice Not to Suspend

Former Sheriff Mike Hennessy confirmed that this has been the standard at the Sheriff’s Department for the past thirty years.

The past practice with regard to Deputy Sheriffs who are charged with misdemeanor crimes is not to suspend them pending the prosecution and to instead have the Department’s discipline process follow the conclusion of the legal process, noted Hennessey.

The cases involved included domestic violence cases and a few child endangerment cases. In Hennessey’s memory, the only time a person was placed off duty involuntary pending prosecution was when a legal action regarding mental fitness and being a danger to him or herself or to others was involved.

In terms of Sheriffs, Hennessey recalled one case of a Sheriff convicted of a misdemeanor and he was not suspended but took five days off to serve his term.

Mayor Lee Shelves Ethics Suspension Recommendation

If legal precedent and past practice appears to be a thin reed, turning to the City’s Ethics Commission as the first step in the process seems an even more remote possibility.

The only time the Ethics Commission was asked to act in a suspension was in 2007 when then-mayor Newsom forwarded charges to them against former supervisor Ed Jew. Despite the charter requirement that Ethics conduct a hearing in five days, it failed to do so.

The mayor’s suspension order was sent in September 2007. By the October Ethics Commission meeting, no action was taken. By November’s Commission meeting, no hearing was held. By December’s Ethics Commission meeting no hearing was held.

Finally, in January 2008, Ed Jew resigned and pled guilty to criminal charges, relieving the Ethics Commission of the responsibility to meet the charter’s requirement.

In fact, the only recent instance of the Ethics Commission calling for the suspension or possible removal of a city official took place last year. At its July 11, 20111 meeting, Ethics voted that the city’s Library Commission President had violated the city’s Sunshine Ordinance, which it then forwarded to Mayor Lee as the appointing authority with a recommendation that he discipline or suspend the Commission President.

Lee has never publicly acted on the recommendation.

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