Misconduct "in office" encompasses the time period after the election, not just after an elected official is sworn-in, according to the city attorney, who released a rebuttal to Sheriff-in-Limbo Ross Mirkarimi's request that he should be reinstated as the county sheriff.
The 33-page counterattack, filed in San Francisco Superior Court on Monday, came just two weeks after Mirkarimi filed a writ of mandate charging that Mayor Ed Lee did not have the legal grounds to suspend him because of his alleged "misconduct," which amounted to a New Year's Eve domestic dispute with his wife, Eliana Lopez. Mirkarimi last month was convicted of false imprisonment. That argument occurred before Mirkarimi officially took office on Jan. 8, 2012.
However, in its opposition to the writ, the city argues that the Charter's language "does not distinguish between an unsworn officer, like the Sheriff-Elect, and a sworn officer, like the Sheriff.... [A]ny line to be drawn is much more sensibly placed at the time of the most recent election that at the oath of office."
Mirkarimi "took on new duties in his official capacity as Sheriff-Elect to prepare for office," the document states, noting that he participated in a series of transition meetings with the Sheriff's department beginning on Nov. 22. "The participants at these meeting understood that [Mirkarimi] was present in his capacity as the incoming Sheriff, not as a private citizen."
The whole point of the misconduct law, the argument states, is to hold an elected official accountable for actions that take place after voters have put him in office -- for actions voters couldn't chew over before an election. Any other interpretation would mean a free pass for pre-oath public servants, according to the City Attorney's Office.
"Indeed if petitioner is right, then there is a period of complete immunity between election and the oath of office for every new or continuing elected official to commit any kind of reprehensible act without any possibility of removal his or her position of public trust," the filing states. "Public officials could rob banks, steal cars, or mug old ladies, and no one, not even the voters, could do anything about it."
By drawing a sharp line at the election day, City Attorney Dennis Herrera directly addresses Mirkarimi's then-lawyer David Waggoner's declaration that "If the mayor's interpretation is correct, then any public official can be removed from office for any past conduct."
Either way, the city now alleges that Mirkarimi did in fact commit misconduct after being sworn into office on Jan. 8 as well. The opposition notes that his infamous statement that the dispute was a private matter is "contrary to the Sheriff's Department's mission to encourage victims and witnesses of domestic violence to come forward." Moreover, it states that the misconduct charge should be tied to March 12, the day Mirkarimi pleaded guilty, because "when there is an intervening period of denial between the act and the eventual admission, the misconduct relates forward to the latter date."
Like its original complaint charge, the city's opposition to Mirkirimi's motion takes a shotgun approach, hoping something hits. This strategy was perhaps most obvious in the city's defense of the mayor's decision to withhold Mirkarimi's pay during the investigation. Mirkarimi has called this move a infringement on his right to due process.
The city counters that Mirkirimi should not be paid while he is not working (unlike almost any other suspended government employee), and that "if it is determined that [he] did not engage in official misconduct, then [he] will receive backpay to make him whole."
The filing also argues that the court does not have jurisdiction to reinstate an elected official until after the investigation process -- from the Ethics Commission hearing to the Board of Supervisors vote -- is completed. If Mirkarimi has a problem with the city's case, he will soon have his say during the hearing, the city states.
The Superior Court will hear this case on April 20.