What is official misconduct? That was the matter before the San Francisco Ethics Commission on Thursday. What is political misconduct in San Francisco? The standard constantly evolves.
Ross Mirkarimi, the city's newly elected but not yet sworn-in sheriff, got in an argument with his wife on Dec. 31. He bruised her arm. She told a friend and made a videotape of the bruise in case the couple ended up in a custody battle over their young son. The friend told police. The full weight of San Francisco power swooped down on Mirkarimi. Wife Eliana Lopez's protestations that her husband did not abuse her fell on deaf ears. District Attorney George Gascón charged Mirkarimi with three misdemeanor counts involving domestic battery - for one bruised arm.
In hopes of putting the matter behind him, Mirkarimi agreed to plead guilty to one count of misdemeanor false imprisonment. The sentence included three years of probation as well as mandatory counseling.
As anti-domestic violence activists clamored for a resignation, Mayor Ed Lee asked Mirkarimi to quit. Mirkarimi refused. Lee then charged the sheriff with official misconduct and sent the matter to the Ethics Commission, which will forward its recommendation to the Board of Supervisors.
Months of deliberations, public hearings and mountains of legal paperwork came to a close on Thursday night. Four of the five commissioners found that Mirkarimi had committed "official misconduct." Commissioner Paul Renne explained, "Voters would be shocked if we said a public official who had pleaded guilty to false imprisonment was not guilty of official misconduct."
Chairman Benedict Y. Hur - yes, Ben Hur - voted against the mayor. It was a lonely moment and a profile in courage, for which Hur should be hailed whenever he enters one of the city's many fine eating establishments.
Hur understood that the issue is not as simple as Renne suggested. The City Charter could stipulate that a conviction represents official misconduct, but it doesn't - on purpose. Lee himself testified that a criminal conviction of a public official by itself does not constitute official misconduct. Hizzoner prefers to consider such cases on a "case-by-case basis."
Translation: If one of Lee's City Hall pals is caught in the act, he wants to be able to spare him or her the Mirkarimi treatment.
Hur made it clear that he found Mirkarimi's behavior toward Lopez to be "egregious" and his dealings with city authorities at times "childish." But Hur argued there had to be a nexus between an official's below-the-standard-of-decency behavior and official duties. Without such a distinction, said Hur, the commission would open the door for all manner of mischief as future mayors could misuse their unique power to eject or threaten rival office holders.
There is no penalty for tossing overblown unproven charges into the "official misconduct" shopping cart. So Lee charged that Mirkarimi tried to dissuade witnesses, abused his power against his wife and two other charges. Commissioners roundly rejected these charges as city attorneys dismally failed to meet the burden of proof.
Keep in mind that these add-ons are what spawned hours of investigative work and mountains of documentation that extended the hearings for what felt like a forensic eternity.
Perhaps the mayor felt that he would look ridiculous firing the sheriff for bruising his wife's arm - which Mirkarimi admitted to - so he sent the full force of city law enforcement on an expensive fishing expedition that netted no fish.
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Ben Hur litigates intellectual property and commercial disputes for companies ranging from start-ups to established corporations. He has tried over half a dozen cases as first chair, and handled numerous criminal and civil cases in state courts, federal courts, and before the International Trade Commission.