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Tuesday, March 13, 2012

Ross Mirkarimi: Canning Him Is Easier Said than Done

Posted By on Tue, Mar 13, 2012 at 1:11 PM

click to enlarge The politically undead do not go gently into the night - CHARLIE POWELL
  • Charlie Powell
  • The politically undead do not go gently into the night

It never inspires much confidence if questions about one's future employment necessitate an answer of "let's wait until my sentencing." Now that Sheriff Ross Mirkarimi has opted to plea to a lesser charge of false imprisonment in his ongoing domestic violence saga, both the Chron and the Examiner today postulate on whether Mayor Ed Lee will force Mirkarimi's hand and suspend him.

Lee, however, is not Donald Trump -- either in temperament or, unfettered ability to dismiss people who have overstayed their welcomes. Mirkarimi would be out the door if he were a private security guard, and would have a very hard time being hired as a sheriff's deputy. But the mayor's removal of a "public officer" is a rare and exacting procedure. "Official misconduct" is required -- and one of the benefits of years of law school and on-the-job lawyerin' is being able to define "official misconduct."

It's also in Section 15.105 of the city charter:

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.

SF Weekly wrote about this subject earlier. But the matter, if anything, has grown even more complex. The scenario facing the mayor was either that the headstrong Mirkarimi would be acquitted -- which would leave Lee with little recourse -- or be convicted of a rather serious domestic violence charge -- which could well lead to a suspension. But when the sheriff opted to plea down, he pulled the rug out from under City Hall.

click to enlarge Ed Lee doesn't have a trump card -- or a Trump card. But he may succeed by doing nothing. - CHARLIE POWELL
  • Charlie Powell
  • Ed Lee doesn't have a trump card -- or a Trump card. But he may succeed by doing nothing.
However bad it looks for the city's jailer to plead guilty to false imprisonment, it remains a challenge to claim this was "job-related misconduct" -- especially since the alleged abuse incident took place before Mirkarimi was sworn in as sheriff. In fact, it's hard to see how this was "job-related" at all.

If Lee pushes to remove Mirkarimi, he'd need to submit written evidence of the aforementioned job-related misconduct to the Ethics Commission, who would then submit a non-binding recommendation to the Board of Supervisors. Then, nine of the 11 sitting supervisors would need vote to dismiss the sheriff as well. This would appear to be tricky, both legally and politically.

As SF Weekly reported earlier, there are legal precedents on what constitutes "job-related misconduct." In 1976 10 of 11 supervisors voted to uphold Mayor George Moscone's suspension of Airport Commissioner Joe Mazzola. The plumbers union boss was removed from his city post 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. ... 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.
In the end, Lee may not have to dirty his hands politically to still see Mirkarimi out. A recall election could be initiated by June if anti-Mirkarimi forces gather some 45,000 signatures (a costly proposition). Or Lee could simply allow Mirkarimi to limp through the remaining three years of his term, and possibly induce a civil war among city progressives as his detractors and chauvinistic partisans duke it out.

A hands-off approach that could allow Lee's political opponents to tear themselves apart? That sounds interesting.

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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