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Tuesday, January 24, 2012

Ross Mirkarimi's Future Unclear. So Are Mayor's Grounds to Suspend Him.

Posted By on Tue, Jan 24, 2012 at 2:45 PM

click to enlarge It's not so easy for the mayor to sack Ross Mirkarimi...
  • It's not so easy for the mayor to sack Ross Mirkarimi...

If the Sheriff Ross Mirkarimi situation is a mess -- and it is -- the question of whether Mayor Ed Lee has the grounds to suspend the sheriff is even muddier. That's because Lee's ability to force Mirkarimi from office is contingent upon the sheriff having committed "official misconduct."

While Mirkarimi is accused of bruising his wife's arm in an argument, endangering their 2-year-old son, and intimidating a witness (his wife), it is a debatable matter if any of this rises to the definition of job-related "misconduct." Also up for debate is what to make of the fact that Mirkarimi was not yet sheriff when the alleged abuse took place on New Year's Eve.

Per section 15.105 of the city charter, Lee is entitled to boot members of government if they do the following:

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 any failure, refusal or neglect of an

officer to perform any duty enjoined on him or her by law, or conduct

that falls below the standard of decency, good faith and right action

impliedly required of all public officers and including any violation of

a specific conflict of interest or governmental ethics law.

The nebulous possibilities of "conduct that falls below the standard of decency" would appear to give Lee carte blanche to suspend Mirkarimi. It could even have given former Mayor Gavin Newsom a chance to suspend himself. But it takes more than crossing puritanical boundaries to commit "official misconduct" -- as San Francisco discovered the last time it bounced someone from a city post.

click to enlarge Who will rid me of this turbulent sheriff?
  • Who will rid me of this turbulent sheriff?
While disgraced former Supervisor Ed Jew was suspended, he resigned his post before his colleagues had the chance to vote him out of office. In order for a mayoral suspension to be upheld, nine of 11 supervisors must approve it after receiving a non-binding recommendation from the Ethics Commission. For this reason, the city attorney has officially told Mirkarimi's former colleagues on the board to not discuss this case.

Back in 1976, however, 10 of 11 supervisors voted to uphold Mayor George Moscone's suspension of Airport Commissioner Joe Mazzola. Mazzola was the father of Larry Mazzola, Sr. and grandfather of Larry Mazzola, Jr. Like his descendents, he was the head of the dynastic Local 38 plumber's union.

Joe Mazzola was removed from his post on the Airport Commission for refusing to order plumbers striking against the city and county to fix airport toilets. Four years later, however, the state Court of Appeal ruled that the city had overstepped its bounds. Per the court:

The record contained no legal basis for a finding of official misconduct.... [The Court] held that the commissioner could not be charged with such misconduct, since the charges had nothing to do with his official capacity as airports commissioner nor to the performance of his duties as such.
The Mirkarimi scenario isn't exactly apples to Mazzola's apples -- but it isn't apples and oranges, either. In order for his suspension of Mirkarimi to pass legal muster, Lee will have to show how the sheriff's alleged actions either related to his "official capacity" as sheriff or his "performance" in his job. As the ruling in the Mazzola case put it, "To warrant the removal of an officer, the misconduct ... must have direct relation to and be connected with the performance of official duties, and amount either to maladministration or to willful and intentional neglect and failure to discharge the duties of the office."

click to enlarge The heart of the city's last "misconduct"-related suspension
  • The heart of the city's last "misconduct"-related suspension
One can foresee the potential legal arguments here against the city's top elected law-enforcement officer -- especially relating to the intriguing "intimidating a witness" charge -- but they're just that: arguments.

Sources within the city also argue that the fact Mirkarimi was still a supervisor, and not sheriff, at the time of the alleged crimes, is immaterial. He doesn't get a free pass for changing jobs. That said, it's hard to imagine city officials aren't searching for potential improper subsequent usage of the sheriff's office in this matter as they labor to present a more clear-cut charge of "official misconduct."

Faced with such a complicated morass, it's no wonder Lee has been prodding Mirkarimi to fall on his sword and spare the city a surefire legal battle royale.

Who'd have thought Ed Jew would ever be a role model?

This story originally reported that it would require the votes of

four of the five Ethics Commissioners to move this case to the Board of

Supervisors. That is incorrect. 

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About The Author

Joe Eskenazi

Joe Eskenazi

Joe Eskenazi was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. "Your humble narrator" was a staff writer and columnist for SF Weekly from 2007 to 2015. He resides in the Excelsior with his wife, 4.3 miles from his birthplace and 5,474 from hers.


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