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Monday, April 23, 2012

Ross Mirkarimi Gets Timeline for Pending Hearing -- But Not Answers

Posted By on Mon, Apr 23, 2012 at 8:30 PM

click to enlarge Ross Mirkarimi didn't get answers today -- but he did get a schedule - JOE ESKENAZI
  • Joe Eskenazi
  • Ross Mirkarimi didn't get answers today -- but he did get a schedule

A proceeding held before the Ethics Commission today addressed the format of the forthcoming rigmarole to determine the fate of Sheriff-in-Limbo Ross Mirkarimi. If you were a fan of lengthy, procedural discussions broken by lengthy, embittered public comment -- and sealed by setting dates into the summer for what figures to be a lengthy, procedural, and embittering process -- then, boy, was this the hearing for you.

Shepard Kopp, Mirkarimi's attorney, made it clear at the outset that he objected to the very basis of Monday's Ethics hearing, describing as half-baked the practice of setting up rules for a process that is already underway. It was, Kopp said, not unlike "a criminal defendant being hauled into court and being told, 'The DA over there has charged you with a crime. Now we've got to figure out what the rules are and the standard of proof is.'"

Those rules and standards have yet to be determined. But, after tonight, at least both sides have a briefing schedule of when each will, essentially, be made to say what it plans to say.

(Up next: actually saying those things at a hearing, for which establishing the ground rules was the ostensible subject of today's proceedings).

The mayor's side will disclose its witnesses regarding matters of fact by April 30 and its witnesses on procedural matters by May 7. Mirkarimi -- whose career is on the ropes following a physical dispute with his wife on New Year's Eve -- will begin listing his witnesses by early May as well. All told, a volley of briefs will be fired off by both sides up to May 25. The actual Ethics hearing all this is leading to should commence by June or July.

By that time, Ethics has a number of tough questions to answer. They include:

  • The applicable standard of proof to which the mayor must convince Ethics Commissioners that Mirkarimi committed misconduct (Kopp insisted on "beyond a reasonable doubt"); 

  • Whether there will be live witnesses, exhibits, and other trappings of a trial -- or the action will largely be the text-heavy, brief- and declaration-based format Ethics' staff suggested that harks to a game of legalistic Dungeons & Dragons;

  • Whether Mirkarimi is mandated to participate in a continuing city attorney investigation -- and whether the city attorney is entitled to undertake that investigation at all.

Peter Keith, the deputy city attorney handling the case, claimed that any sheriff's deputy suspended over alleged wrongdoing who refused to participate in a subsequent investigation "would be fired." Ethics Commissioner Paul Renne seemed puzzled, noting "So, if you suspend him of his duties, and he won't talk to you, that's a violation of his duties?" Keith said it was -- adding that Mirkarimi's status as an elected official is immaterial.

Mirkarimi is flanked by his lawyers Shepard Kopp (near) and David Waggoner - JOE ESKENAZI
  • Joe Eskenazi
  • Mirkarimi is flanked by his lawyers Shepard Kopp (near) and David Waggoner
Kopp disagreed, and claimed the city attorney has threatened that Mirkarimi's failure to turn over materials and subject himself to "an interrogation" would result in further ethics charges. What's more, Kopp claimed that only the Ethics Commission has the authority to initiate such an investigation -- not the city attorney. The prosecution, in Kopp's view is "scrambling" to come up with evidence of the charges it listed in its brief.

After establishing the aforementioned briefing schedule -- and punting the weightier questions to the cusp of June -- the Ethics Commissioners heard around an hour's worth of public comment. Heartfelt, pro-Mirkarimi invective carried the day by about a 10-to-1 margin -- though the sheriff appeared to wince a bit at some of the more heavy-handed conspiracy-mongering. Also, in a possible first, city officials actually took up a suggestion made during public comment. City Hall regular David Pilpel advocated standardizing the font size of the forthcoming legal briefs the commissioners capped at 35 pages -- and, lo, it was done.

A great deal of legal text -- in 12-point, by the way -- will be generated between now and summer. Big questions have been put off, but cannot be blown off. "I think we'll have a lot more answers by May 25," said Kopp. And, to answer a different sort of big question, when asked if he would put Mayor Ed Lee on the stand, Kopp replied "If we get the chance."

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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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