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Thursday, June 7, 2012

City Won't Pay for Ross Mirkarimi's Defense Team, City Attorney Says

Posted By on Thu, Jun 7, 2012 at 2:27 PM

Ross Mirkarimi
  • Ross Mirkarimi

City Attorney Dennis Herrera today denied Ross Mirkarimi's request for the city to finance his defense attorneys during the Ethics Commission proceedings, which are looking into whether the suspended sheriff committed official misconduct.  

Mirkarimi, who was elected sheriff in November, had stated in a recent letter to Herrera that as an elected official he ordinarily should be represented by the City Attorney's Office. But because this would create a conflict of interest (the City Attorney's Office represents Mayor Ed Lee, who initiated the hearings to try to kick Mirkarimi out of office), the city should "provide" him with private counsel.

Herrera, who says he received the letter, dated May 15, on June 5, countered that request, saying "the city does not pay for private counsel to represent employees charged with misconduct." While the Charter allows city officials to request independent attorneys if they don't think it's in their best interest to be represented by the City Attorney's Office, it does not, wrote Herrera, "authorize city officers or employees to have either the City Attorney's Office or taxpayer-funded outside counsel represent them in their personal disputes with the city."

Worth a try, though, considering the mayor suspended Mirakrimi without pay. Can't knock the hustle.

Of course, this is not the first time Mirkarimi and Herrera have publicly presented clashing interpretations of the City Charter (see "moral turpitude," "official misconduct," and the mayor's authority to suspend a sheriff).

In his letter to Herrera, Mirkarimi cites section 6.102[1], which concludes:

[If it is determined that] the City Attorney has a conflict of interest regarding a particular matter, the elected officer, department head, board or commission shall be entitled to retain outside counsel for legal advice regarding the particular matter, and the City Attorney shall thereupon cease to advise the elected officer, department head board or commission on such matter. Any such finding of a conflict of interest shall not affect the City Attorney's role as legal adviser to the elected officer, department head, board or commission on all other matters.

Mirkarimi explains that "the actions of your office thus far in these proceedings demonstrate that neither you nor anyone in your office could ethically represent me. Without cataloguing every action you have taken, suffice it to say that you chose to represent the mayor in derogation of your equally compelling legal duty to represent me."

But representing the mayor or representing Mirkarimi are not equally compelling duties, replied Herrera, who jabs that Mirkarimi's argument "indicates a fundamental misunderstanding of the official misconduct proceedings." The City Attorney's Office is representing the mayor's actions on behalf of the city, he asserts.

"This proceeding is not a private dispute between the mayor and the sheriff," he writes, citing a recent Superior Court decision that stated:

The City Attorney is representing the mayor in his official capacity with respect to actions he took on behalf of the City in accordance with a provision of the Charter authorizing the Mayor to take such actions.

Mirkarimi faces official misconduct charges stemming from a Dec. 31, 2011, domestic dispute in which he bruised his wife's arm. He pleaded guilty to misdemeanor charges of false imprisonment in March.

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Albert Samaha


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