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tv   [untitled]    September 30, 2012 3:30pm-4:00pm PDT

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maybe if we did, then i think it should be put into the majority, if that is what the majority wants. in the "facts" section, i don't think that part should be included. any other commissioners on this? >> i was just looking the "findings of fact," that have been proposed, and so i guess that particular portion is not in the "findings of fact." but i would be fine in adding it to the major discussion.yyisq
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[inaudible] -- -- we'll have to make a finding on it. >> do the parties disagree with na, i think the sentence was stipulated. mr. wagner., ou on that? >> i would object to adding any language that attempts to change what the commission decided on august the 16th that is not ultimately relevant to what the commission is tasked to do. >> i can appreciate that view, but my question is did you stipulate what the sentence was? >> yes. >> okay, thank you. >> that is not reflected --
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we stipulated to several of these facts. but the way it reads here is that the commission unanimously finds that the mayor proved the facts. well, if we stipulated to the facts already, then the mayor didn't need to prove them. >> okay. i have no objection to putting in the sentence in "finding of fact 7." >> excuse me, i need that sentence then. what i have is hree years' probation, domestic violence counseling and a fine. it is this conviction and sentence -- ." >> that part i don't agree should be put in the findings of fact? >> the sentence i just started? >> yes. >> and i think whatever the sentence is should be accurate as reflected in the stipulated portion of the amended
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charges. >> i agree. >> when it says, "the commission," i can tell you where that language is located. i can tell you where the language is located. it's in paragraph 31, of the amended charges of official misconduct. and it's the second sentence. the court imposed sentence consistent with the march 12th, 2012 plea agreement and ordered sheriff mirkarimi to be placed on three years probation under supervision of the san francisco adult probation department and then sets forth -- you may want to shorten it, but that is the stipulated language from the amended charges. >> what was the last clause? >> i actually did not finish. "under the terms and conditions that he was to serve one day in county jail with credit for
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time served, perform 100 hours of community service pursuant to penal code section 1203.97 and to participate and successfully complete 52 weeks of domestic violence counseling pursuant to penal code second, 1203.97, pay a $400 domestic violence fine pursuant to the same section and enter parenting classs if deemed appropriate by the adult probation department. >> would it be appropriate is to to say that the court imposed a sentence as reflected in 31 of the amended charges? >> that is fine with me. >> that is fine with me, too. >> that is what i propose. to the extent that the majority
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wants to add language to the majority portion of this order, what did you have in mind and is there actually agreement to include such language? and i do think the commissioners should consider the danger of adding justifications that were not addressed at the hearing. i do not -- >> i will withdraw them. >> okay. commissioner renne, you had a third amendment? >> no, that is all i have. thank you. >> commission renne, you are withdrawing the proposal with respect to the conviction, but what about with respect to the credibility issue? >> just the latter one that we were talking about. >> okay. >> because the chairman has raised the question that we may not have specifically discussed
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that matter on august 16th and i don't want to confuse the record. so it speaks for itself >> okay. with respect to commissioner renne's first proposal on the credibility issue, i think that can go on page 6, line 6, right after the quote -- the end quote and right before, "in addition this conduct relates...." >> mr. hemblig, do you have that? >> can you read that language again? >> in that regard the commission did not find credible the version of the incident as described by the sheriff and miss lopez at the hearing. rathern commission finds that the evidence contained in miss lopez' video was more credible.
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>> commissioners i am going to make a general objection to including that. i don't think the commission made that with respect to credibility. if the commission did so, i would appreciate a cite to the transcript. >> i think the majority is right that we did discuss that extensively. it wasn't a basis for a finding of fact, but there was a uniform -- i think a uniform view in the majority's opinion that the video was more credible than the testimony. and i think they are entitled to provide the board with the view that they stated on the 16th as to how they view the evidence. so your objection is noted. if any other commissioner would like to respond, i open it up.
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any other proposed changes to the draft order? okay. at this point one other thing that we should discuss in relation to this order is the presentation to the board of supervisors. i understand that the board wants someone from the commission to provide a short presentation as to the findings that the commission made and the procedure that the commission followed. i am proposing to the commissioners that mr. hemblig play that role. i think he is clearly a neutral in this.
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he has been here for all of it. he drafted large parts of this order and has in large part been following and closely tied to what has been going on here. any other views from my fellow commissioners? yes, mr. wagner? >> i also have some suggested changes to the finding of fact and recommendations. i can address that first. >> sure. >> in general i object to the overall language of the draft findings. i think that the document is very one-sided and doesn't mention for example that the commission unanimously rejected many, if not all of the contested factual allegations made by the mayor. for example, as to misuse of guns
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as to dissuasion and to page 4 where it says the commission denied the sheriff's request for subpoenas as to collateral issues and describe those issues and the issue was whether or not the major commited perjury and that is why we requested those subpoenas. that is not reflected in the document and finally and most importantly, well, two other points. on page 5 in the "findings of fact," in paragraph 3, it refers to "acts of verbal and physical abuse." without saying what those were. i don't think that the commission actually made a determination other than the arm grab that there were any
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other acts of "verbal and physical abuse." similarly is, the sentence right after that, using the phase "with such force." obviously if the arm was bruised, then that is implied. so i don't think that the commission had the discussion about whether or not to use that phrase. and finally on page 6, the first sentence of the recommendation reads, "the board should sustain the charges of official misconduct against sheriff ross mirkarimi based on, et cetera conduct on the incident on the 31st as reflected in counts 4 and 5." i take strong issue and object very strongly to the commission making this recommendation as stated here. because that is not what the commission decided. and commissioner renne pointed out on august 16th that the counts are the same as the charges. well, the commission
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did not unanimously or otherwise sustain any of the mayor's counts in their totality. rather the commission decided that there was official misconduct going back to the incident on december 31 as reflected in counts 4 and 5. that is not the same thing as sustaining counts 4 and 5. the commission did not sustain or recommend to sustain count 4s and 5 and the commission did certainly not recommend to sustain the charges, which implies all of the charges. so i think at a minimum, this document should be clarified to reflect what the commission actually did and did not do. but it did not sustain the charges. certainly not as written by the mayor. and i think this document should reflect that the commission did not sustain any of the six counts and, in fact, only found that two of the counts, 4 and 5, there were elements of those counts, parts of those counts that a majority of the commission agreed with,
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but certainly not all of those counts. >> let me start with that particular point and we'll address each of those in turn. on your last point you are complaining then about the statement on page 6, line 1 through 4. is that right? >> yes. did not say that the board should sustain the charges of official misconduct against sheriff ross 6รง0 on the seriousness of the incident that occurred december 31st, 2011, and the subsequent conviction as reflected in counts 4 and 5 of the amended charges of oehl misconduct. that is the part you are complaining about, right? >> yes, and specifically the first five words . >> well, on page 16 11 of the transcript, there is a motion that says, "is there a motion to sustain the charges as to the conduct that occurred on incidence 31st, 2011 and subsequent conviction as
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reflected if counts 4 and 5 of the amendment charges of official misconduct." so i think it's pretty clear that the order reflects the motion that was made, seconded and approved by the commission. okay. your concern about the facts that are not included here. meaning the fact that we found there wasn't sufficient evidence on the guns or other conduct. i am certainly not suggesting that we didn't make those findings and i stand by them and i think we were absolutely right to find that the mayor did not sustain his burden on many of the facts. but a finding of fact is a place to put in what we actually found, not what we didn't find. so that is why we didn't include those in there. with respect to -- i mean
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with respect to your concern about how we crafted the language on the denial of the subpoenas. you know, i suppose i'm open, if you think that there should be word changes, but i think this accurately reflects what we decided. do you have specific things about this that you think are inaccurate? >> well i think that earlier you referred to the fact that the commission did not decide the prosecutorial misconduct. i don't know if you consider lying under oath prosecutorial misconduct, but it was alleged and we requested subpoenas and the commission declined to look into the issue and i think the board in this document, the vice summary was a major aspect of the case and
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reported for weeks in the press. two officials were to testify under oath to the mayor's perjury and this language minimizes all of that. >> mr. wagner, with all due respect, we didn't ignore it and, in fact we talked about at t at some length and is dueded that under and/or too collateral to address and it's in the record. the board can look at it. i frankly think this language accurately reflects what we decided. again, if you have specific words that you think are inaccurate, you can point them out. but i certainly don't think this should come out. this is simply a reflection of what we decided. we're not making any judgment calls as to in this paragraph as to whether or not the mayor's testimony was otherwise
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credible. >> may i add something? >> yes, commissioner liu? >> in addition i also think it's important to remember that chair hur during that meeting, whichever date that that was that we discussed our request for additional evidence and testimony, that chair hur pointed out that perjury charges are not and were not before us. our commission was not asked to pursue charges of perjury against the mayor. your request to us was whether to allow evidence from four additional witnesses on these other issues, and your hope was to impeach the mayor with those additional issues. and so what we discussed and what was briefed was the fundamental rule of evidence, that we have the discretion and courts have the discretion to not allow evidence and witness testimony for the purpose of pursuing issues that are
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collateral and not directly relevant to what is going on and what is at issue in the hearing. so i would like to just state for the record we were never asked to pursue perjury charges and were not the body to do that. that is not our job and that was never our job whether or not to decide to pursue perjury charges against the mayor is not within our purview at all. so i just would like to correct the record on that. >> any other commissioners want to weigh in on this? >> i am somewhat sympathetic to your statement that there is nothing in here that reflects the fact that we rejected a number of charges that were and is there some language that you specifically would like to have us insert and where would you like to have it? so that the board is aware of the fact that in a sense we only
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accepted one charge of misconduct and that was the misconduct relating to the incident of december 31st and the conviction. and everything else that the mayor choose to throw in we rejected. i agree. and i don't have any problem if you wanted to put that in. i don't know if other commission members would, but i think it's a fair statement. >> what do the other commissioners think about that? my concern is that when you start saying what you didn't -- facts that weren't proven, you kind of open the door to, well, how many should we in include and exactly how should we say them? with that said, i certainly, it's crystal clear in my mind that what we found that certain allegations were not proven and if the commission feels that we should add them, i don't necessarily have a problem with that. as a practical matter the crafting of language may
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present some issues. so with that, i ask whether commissioner hayon or commission liu have anything to add? >> what you are proposing mr. wagner, along the lines that the commission did not find evidence sustaining charges of witness dissuasion and interference with a police investigation? those are the two that stick out for me, perhaps, if you wanted to include a sentence along those lines? >> i think the guns would also be the third major allegation that we found was not proven. >> thank you, commissioners for considering this point. i think my concern is that as commissioner renne said at the
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last hearing, the counts are the charges. so when the commission is saying in this document, the board should sustain the charges that implies that the board should sustains the counts, when, in fact, the commission rejected four of those counts completely. and that is 1,2,3 and 6. so i think this document should reflect that fact and by simply saying that the commission -- the board should reject counts 1, 2, 3 and 6 completely, and as to counts 4 and 5, well, i will leave it to the commission. that language is already in here and i do think it's clear that the commission -- well, it's not entirely clear. i think the commission should be clear in this document to say that they rejected all of the counts as drafted by the mayor. that is a fact. and it does not reflect that here. >> one of the problems that i have with your statement that
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we rejected 1, 2, 3 and 6 is they were rejected because they concluded so many things. you know? and i have got to say from my point of view, one of the frustrations is there was never one simple charge saying x and y. they added everything in all of them and i think our problem when we went to 4 and 5, because they were the ones that were closest to what we found to be official misconduct. that is part of the problem. >> i completely agree commissioner renne, and my reading of the charter is that it does not empower the ethics commission to redraft the charges. if the mayor made an error in charging, i don't believe that the ethics commission has the power to cure such a defect after the fact by redrafting
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the counts. >> i'm looking at count 4 and my understanding of what the majority did they fund each element of count had was met. the problem that the commission had was incorporation by the commission ragraphs 1-46, found that sheriff mirkarimi was a public officer the all-times during the event. that he engaged in wrongful behavior by the crime of falsely imprisoning his wife, resulting in miscriminal conviction and thinks behavior was wrongful and willful and that the crime, conviction and sentence as related -- well, maybe that each and every duty of his office may be overstated. but i think the majority found it related to his duties.
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is that consistent what was founded? >> as was said we struggled with the other counts because they had so many elements and i do not think it's accurate will it tosy that we rejected in their entirety, for instance, count no. 1. we talked about that count in particular and decided to go with 4 and 5, because 1 did include a number of things that we were not sure, some people may have agreed and some may have not. so that one i feel strongly we did not natomasly unanimously reject count no. 1. so for that reason i would say it's better to say what we did find and not what we did not find. >> thank you, commissioners. i think this language should roflect what commissioner hur read into the [stra-pbz/]
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script, page 1611 of the transscripted and that is sustain the charges as to the conduct that occurred on december 31st, et cetera as reflected in counts 4 and 5. that makes it very specific that well that is just what the commission decided and this language here is more broad. the language in the document is not the same. it says sustain the charges of official misconduct, et cetera. >> i mean, it is substantively the same. what is the substantive difference in your mind? the only difference is that we added what was certainly implied in the motion that it's charges of official misconduct. rather than charges as to the
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conduct. i mean, look, if the majority wants to change that to the exact language of the motion, i guess i have no problem. this just seemed clear as to what you all really did. but i leave it to you . >> well, i don't believe that the board ever -- excuse me, the commission ever actually took a vote and said we're going to sustain counts 4 and 5. we find there was official misconduct as reflected in counts 4 and 5, which is not the same thing. >> well, what is in the order right now is the "as reflected" language. so you still have your argument. so i don't think you want language that weakens your position here. >> i agree. thank you. and if i may now address the issue of mr. hemblig
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representing the commission before the board, i think this is a thorny issue, as the commissioners are aware, we initially filed a motion to or may be aware we filed a motion in civil court to have the city attorney's office disqualified from the case and the ethics commission of its own accord determined to hire outside counsel and did so. throughout this process to my one another mr. hemblig has been representing both the commission and the board simultaneously. now that the commission by vote of 4-1 has decided to move forward with the mayor's efforts to remove the sheriff or at least find that he engaged in official misconduct, it occurs to me or seems to me that the commission takes on a prosecutorial role in trying to convince members of board of
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the mayor's position, at least as reflected in counts 4 and 5. so that you now have the same attorney, who is now taking on a prosecutorial role advising the decision-maker, and i think that raises a conflict of interest and we would therefore object to mr. hemblig representing the commission before the board. >> i am not sure -- mr. hemblig wouldn't be advising the board, but be the spokesperson for the commission to tell the board what the commission did. he is not going to be the one to tell the board what they should do, i gather. >> is he providing legal advice to the board. he is acting as the board's lawyer, as well as the commission's lawyer. i don't know if that contradicts your statement. he is playing the same role for the board that he played for us. >> why is that? >> because that is what i was
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asked to do, to provide outside advice both to this commission and the board of supervisors on the process. >> if mr. hemblig is only planning on discussing process questions before the board, then we would withdraw the objection. but my understanding is that mr. hemblig or whoever is going to be representing the commission is -- i would presume -- going to be advocating for the commission's position. >> i guess that was not my understanding. my understanding is that we're going to have a different procedure than is typically occurs at the board. it would be a shorter presentation that would provide for the board what we did, timeline on which we did it, to the extent necessary what evidence we considered and then to the extent necessary summarize the findings that are already in this document. i am

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