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Monday, March 26, 2012

Ross Mirkarimi: The Deck Is Stacked -- Now

Posted By on Mon, Mar 26, 2012 at 1:52 PM

And now things get worse
  • And now things get worse

Sheriff-in-Limbo Ross Mirkarimi's claim that domestic violence charges against him were the result of a conspiracy marshaled by "forces at work that don't want me to become sheriff" was so spectacularly misguided that it either handed those forces all the ammo they could ever use, or did away with a need for such forces entirely, depending upon one's worldview.

His counselors' claims the justice system was rigged and partial were grating. But they were also premature. Because the de facto judges now deciding Mirkarimi's fate are anything but impartial. And, depending on which fedora-wearing observer you believe, this system could certainly be described as rigged.

Mirkarimi's fate will next be decided by the Ethics Commission -- a group of political appointees with a well-earned reputation for afflicting the afflicted, comforting the comfortable, and falling in line with the wishes of the city's power brokers. After that, the case moves to the Board of Supervisors. This is an election year, and any supe who casts his lot with Mirkarimi would need to make a nuanced explanation to voters about the difference between Mirkarimi's misdeeds and the nature of "on-the-job misconduct" as framed in the City Charter. Good luck with that.

The Charter doesn't allow Mirkarimi to be banished, tarred and feathered, or excommunicated. But there is now talk that he's liable to lose his vested pension and health care. This is a jaw-dropping development -- and would be a worse fate than those meted out to men who actually stole from the city.

Regardless of whether one thinks Mirkarimi should be removed from his job, there is a very specific criterion for losing one's pension and health benefits. One must commit a "moral turpitude crime" -- and, what's more, one must do it while in commission of one's job.

The city, alarmingly, does not maintain a list of crimes that could cost a city employee his or her pension -- nor does it even define a "moral turpitude crime." The closest it comes to the latter is this passage from a 1994 City Attorney's legal advice letter:

Courts have not provided an exact definition of the phrase "moral turpitude."  As the California Supreme Court has explained, "the concept of moral turpitude escapes precise definition." (Chadwick v. State Bar (1989) 49 Cal.3d 103, 110; Henry H. v. Board of Pension Commissioners (1983) 149 Cal.App.3d 965, 975-76.)  It generally has been defined as "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." (In re Craig (1938) 12 Cal 2d. 93, 97.)  In addition, "it has been described as any crime or misconduct without excuse or any dishonesty or immoral act."  (Chadwick, 49 Cal.3d at 110)  The definition does not depend on whether the crime is a felony or misdemeanor. (Id.)

click to enlarge Do an internet search for "moral turpitude" and you find many images of Charlie Sheen
  • Do an internet search for "moral turpitude" and you find many images of Charlie Sheen
The City Attorney's office has also noted that "For the most part, [crimes of moral turpitude] have been applied to employees that embezzled funds or stolen property from the City." But, in theory, the term is nebulous. If false imprisonment, to which Mirkarimi pleaded guilty, is a moral turpitude crime, why not parking in a disabled spot? Certainly that would be "contrary to the accepted and customary rule of right and duty between man and man." How about vandalism? Shoplifting? Criminal mischief?

Of course, another key component of losing one's pension via a moral turpitude crime is that it must be committed while in commission of one's job. If you can parse this element out of the official case against Mirkarimi, you're a closer reader than your humble narrator.

Finally, as SF Weekly has reported before, due to a since-sealed loophole in city law, loss of a city pension due to moral turpitude crimes applied to those on a standard pension -- but not a disability pension. So Paul Held, the former machinist who pleaded guilty to stealing auto parts from the city will continue to receive a pension -- while Mirkarimi may lose his.

When we last asked the San Francisco Employee Retirement System how often workers lose their pensions, the department revealed it occurs so rarely that no one even keeps track. "Two or three times in the last eight years" was the best we could get.

People would remember this one.

This story originally reported that it would require four of five Ethics Commissioners to move the 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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