tv [untitled] August 25, 2012 8:00pm-8:30pm PDT
particular office, is very relevant. it is not just some elected official acting out, taking his clothes off on a tweet or what have you, but something that really speaks to san francisco. he is a leader -- the sheriff is a leader in law enforcement and domestic violence. there is a correlation in what the city and county of san francisco does and that is important to me. >> if i may make one suggestion for you to consider. if there is a disagreement about whether option 1 or option two is the appropriate interpretation, you might
consider reaching a conclusion under each option. i say that because, obviously, your recommendations are going to the board of supervisors. if you were to make a recommendation under option 1, but the board believed option to was the better interpretation, the -- the board might say, what with the ethics commission have done under option 2. i do not want to make your job any more complicated than it is, but i think you should consider making findings under each option. chairperson hur: views of my fellow commissioners? ideally, i would like to make a recommendation to the board that is a single recommendation. i think we are making the board's job harder if we do not come up with one recommendation. i think it would be easier for us to have a number of permutations, recommendations,
and send them all up and we may need to do that if we cannot reach a majority of some of these things. my preference would be to figure out what we think the right option is and make a recommendation. >> i was not presupposing that your recommendation would be different. it may very well be. i do not want to prejudge what i am hearing, but it may be that the recommendation you make -- you might make the same recommendation under either option. >> as a matter of process, we might see where we are all lined and where we have differences. under the same option, different views, or different views depending on which option we proceed with. we might get closer by doing it.
yet, i think you are right that we would still have a preferred pathway or recommended analysis. it may be that there is a footnote that says, even if you go this way, here is how we thought about it. that could become part of the later interpretation and could help people. if the supervisors go back to try to parsed this out. chairperson hur: i think that is a good point. >> it would be as close as we can to what you want, but it would be a way to find differences. commissioner renne: i am not sure the results in this case is any different. what i am concerned about is that this commission sends a message to the elected officials. you can do anything you want if it is not in relation to your duties. i think there is at( provision that puts a higher standard on
our elected officials than just how they conduct themselves vis a vis their official duties. chairperson hur: that is a fair point, but the countervailing view is -- i have not seen any evidence suggesting to me that the mayor had any improper motive in bringing these charges. this, to me, is a statute that is subject to a number of interpretations. i think the mayor, in light of the seriousness of the allegations, had every right to file the charges. we, i think, need to interpret it. i think we are going to do this mayor, future mayors, and elected officials service if we interpret this in a way that is clear. i have a lot of concerns about where you draw the line if you do not relate it to the duties. the other thing i want to say about this is this is not the
only provision in law to protect the public from elected officials doing wrong things. there is a criminal process, there is a recall process, there is a process within one's own department whereby an official candy reprimanded. i think the voters intended official misconduct to be something narrow because it provides the mayor with a very strong tool that really could disrupt an elected official. i do not think the mayor engaged in anything improper here or that there is any improper political motive. but you could certainly see that possibility, especially if we interpret this in a way that is so broad as to encompass any number of -- any amount of personal misconduct that does not relate to one's job duties. >> maybe we should take option #2, the tougher, higher standard
and then see where we are with that and see if we need to discuss option #1 some more. chairperson hur: i think that is a good idea. under option #2, i am guessing, based on what i am hearing, that the debate is going to be about whether the relationship to the duties has to be a direct relationship, meaning something that is performed on the job or purporting to be on the job under color of law. lpor whether it instead must merely affect the elected official's ability to perform a duty. i probably should have not use
the word "merely." i do not mean to suggest that it is a lesser option, by any means. but is that pretty much what the parameters are if we are considering what relations to the duties means? >> i think it is a good start. let me start with something that seems pretty clear to me. i do not think that the duties of office can be limited to the handful of specific, affirmative tasks enumerated. that is just a poor reading of the duties of office. there are a whole lot of affirmative and negative instructions for explanations of duty. what the charter, as i understand it, attempted to do,
is enumerate some of the specific responsibilities at the charter level for those jobs, like operate the jail so you can tell the job of a supervisor from the job of mayor. nowhere does it say "do not lie, cheat, and steal." i do not think we expect the chartered to do that. it is part of the obligation of office. i think the duty and obligation of the office are related. the argument offered to us that the limit of what the sheriff has to do is in that handful of specified tasks and nothing else identified by the mayor, signed by the board of supervisors, selected by the office holder, him or herself,
as a way to advance the purposes of the office, are not part of the job. if anybody challenge that, i would say, if you drove your official card to it, it is not just the limit of those five items. the sheriff's job is much broader. not that it is easy after that, but i just want to come up for my part, scooped away that argument constraining us and then we can figure out what the duties of the office of sheriff are. chairperson hur: i agree with that. ok. i think we agree that the duties
are broader than what is described in the charter. what are we to make of the relationship test? i am torn, in some ways, because i am troubled that there is case law that addresses what is expected of an officer. i think those cases could have some relevance to what we are discussing. of course, there are no cases that connect whether that standard should be imported into and official misconduct analysis. that is where i am a bit stuck and why, out that the relationship has to be direct.
but i again welcome the views of my fellow commissioners as to whether this relationship does have to be done while performing your duties or purporting to perform your duties or whether there can be a different type of relationship on the official misconduct standard. >> i do not think it has to be while carrying outlp or providig -- i do not think the conduct or the misconduct, the wrongful behavior itself, is constrained to being performed while carrying out your duties. i do not read the provision to be that narrow. i agree with commissioner studley that the duties are not simply the ones enumerated in the charter. i think that there has been a
lot of testimony and evidence that the duties of the sheriff are much broader than that. as commissioner hayon put it, the sheriff would oversee a lot of anti-domestic violence programs. there would be a correlation between not function of the share of -- sheriff and being convicted of a domestic violence crime. chairperson hur: the problem i have with tying the relationship to the effect or the ability of the sheriff to perform the job going forward is that it does not seem to work from a timing perspective. we are talking about -- to me, this provision is talking about wrongful behavior that, at the time you are doing it, is in relation to your duties. a lot of the testimony we heard is whether or not the sheriff will be effective down the road.
he very well may not be, but i do not think that is in our purview. if we are going to sayq/a -- essentially, what the mayors export -- experts said is that any misconduct by a sheriff is official misconduct. that troubles me because it seems the parties can see that there is a difference between personal and official misconduct. the evidence we heard does not give me a comfort that we can take that line. -- pick that line. >> i am just wondering how you are getting to that time iss ue. within option 2, any wrongful behavior in relation to the duties of office, including conduct that falls below the standard of decency and right
action required, and the standard required could well have at( going forward element o it. the standard that we expect is so that you can do your job going forward. it is not either historic or at one moment in time. you may be looking at something that i am just not seeing in the second line or in the other case law, which i know you know better than i do. chairperson hur: it is a good point. i do think a standard is something you should be able to look at now and know if it sticks. if the standard is we expect you to act in a way that, in the future, you would still be affected even if you do the act -- >> let me try making up hypothetical is on the fly. -- hypotheticals on the fly.
if i held public office and i admitted to perjury in another jurisdiction in a matter not related to my city responsibilities, i lie in my family's state matter, that is wrongful behavior. say i am the district attorney. if you think that the standard that i should be held to as a law-enforcement officer is related to not perjuring myself, would it be in relation to the duties, even though both the time and the substance are distant from mylp job here in sn francisco? chairperson hur: i would say that is not in relation to your duties.
again, the reason being that -- i think there has to be a greater connection. there is another line between perjury and lying. if you lie to your husband, if you like your friend, is that conduct the falls below the standard of decency? >> but if i perjure myself or lie in a legal proceeding and my job is legal, does that threaten the standard of decency? chairperson hur: again, i have always read this to be a standard, which is why it has to tie into the duty. to read a multiple standard is difficult. >> even if we have a single standard and i am a public official and my perjury is in a
public proceeding, do you think the voters wanted me to come back, having been convicted of perjury, and continued to hold my office on the same terms as before? or would they believe that there had been official misconduct? because that is the term we are trying to -- would they believe i had committed wrongful behavior in relation to my duties? chairperson hur: your scenario, i do not think it matters whether it is the district attorney, the board of supervisors, any public official. for me to be consistent in my view, i would have to find that that is not official misconduct in the performance of your duties. i can also make up a hypothetical that pushes the
other way. if you are in a bar in your intoxicated in public, is that official misconduct? certainly, if you are in your office and your intoxicated repeatedly, that is clear that that could constitute official misconduct. but is it below the standard of decency and right fate and right action that one could be publicly intoxicated in a bar? is that what we expect of our law enforcement officials? >> i do not want to be flippant and say, not in san francisco. [laughter] no, but i am trying to figure out why. what we are trying to do is get closer and closer to what the line is.
>> i think that i see what you mean. the interpretation that you are giving in relation to the duties of the office, i read the second provision to relate to the office of sheriff but not necessarily to mean that it has to happen while carrying out the duties of sheriff. i still think there needs to be a nexus and their relationship to the office. i do not read it as restricting it to the duties of office. i think that is where we differ on the interpretation. chairperson hur: my interpretation is a little bit broader than that. "in relation to the duties" means what you are acting under color of law. if the sheriff had used his authority as sheriff to dissuade
a witness even though he was not the share of at the time -- the sheriff at the time, i still think that could explain a charge. what i am worried about is a relationship that is so general that what we are talking about is the affect on his ability to do the job going forward. i do not think that is what the voters had in mind when they wanted to remove someone for official misconduct. >> i was not saying that we have to find whether or not he would be ineffective or effective as the share of going for -- the sheriff going forward, just weather being convicted of the crime of false imprisonment or domestic violence falls under the standard of decency that we expect of the office of a share. -- the office of sheriff.
not that he would be ineffective going forward, but taking this prong, does this prong meet the facts here to sustain a charge. chairperson hur: while i can agree about the point about missoula, if we are following option two, missoula clearly talks about this definition. it is the same language. he then goes on to say that the acts must be committed while in office, and official misconduct requires the direct relationship of the wrongdoing to the office
held. and explains why missoula does not, because he was not performing his duties. that is where i get hung up, how to reconcile those. >> i think i am just reading missoula as pertaining to the first prong. it makes sense to me that that is a more narrow and restrictive view, but not addressing the second prong. commissioner renne said that is the gap that the voters decided to fill. chairperson hur: if we are going to say that the second prong has to relate back to this "in relation to duties" portion, i do not see how the second prong should be interpreted any differently than in missoula. we are still talking about the
same language. maybe i am missing what you are -- commissioner renne: why have the second sentence if it does not mean anything other than what missoula was talking about? chairperson hur: what i am saying is i think missoula was explaining what "in relation to the duties" means. it could be broader, but they still have to relate to the duty. i am only relying on this a lot in that it helps nearest -- understand what kind of nexus is required. i agree that the decency standard is broader than the failure to act standard.
can we -- i am just trying to figure out ways for us to move the ball forward. are we in agreement that there is a distinction between personal misconduct and official misconduct? >> how do you mean? chairperson hur: and a sheriff engage in misconduct that is not official? wrongful behavior that is not official misconduct? >> yes. chairperson hur: what would be an example of such a thing? >> i promised my husband i will be home, this time, by 7:00. i am not.
that is personal misconduct. i have broken a promise to a family member. i do not think it is actionable at work, just to get the ball started. >> do you mean conduct that is unlawful that would not constitute official misconduct? is that what you mean? chairperson hur: what is conduct that would fall below the standard of decency that would not relate to the duties of a share of -- of sheriff? perhaps commissioner studley's example is a good one. >> breaking a promise to a friend or family member. it is not unlawful. if you want unlawful, you will have to search for another. >> perhaps misconduct that does not end up being unlawful if
there is no criminal conviction. but it is something that was tasteless. >> there are all sorts of speech acts that might not be appropriate or tasteful or respectful, that are wrongful behavior but not official misconduct. >> what is the principal you use to draw the line? -- what is the principle you use to draw the line? >> i do not think we need to set a bright line rule, necessarily, unless you are uncomfortable with the fact, and
you need to set a bright line rule. i think we need to figure out where the facts here rise to that level. i do not know that we have to set a rule for any time this comes up. >> i agree with that. i just asked because i am trying to get comfortable with this idea that -- what i like about bright lines is that it is easy for the next person to follow. i think, in a vacuum, bright lines are better than not bright lines. >> it is hard to find a bright -- >> you are right. our task is not to create -- we probably could decide without establishing a bright line rule, but i am trying to get comfortable with not having a bright line rule, and how you would decide similar issues, if we went with a more vague -- >> it is hard to draw a line with only one docked.
part of our problem is we have just this one matter. we do not know whettmváp&e%ei worried about a slippery slope or a floodgate if we do not provide enough guidance, or if we do something that is hard for this or subsequent mayors to interpret. but it is asking a lot to try to into with a line and a formula for something that happens so rarely. we should not do it willy-nilly. i am with commissioner liu that we may be overburdening an already complex process by trying to imagine all the other possibilities when there is no population to reflect that. >> i have a question.
the last time this even came up, which i guess was with supervisor chu, although it did not come to a hearing, and it was an actual criminal misconduct, and prior to that, mizzola was the only previous case. >> i believe there was one in 1932. >> i guess what i was trying to say earlier, in terms of the fairness issue -- you have this description, or this definition, of official misconduct on the books or in the charter. but the fact is, it is not used very often. it is used subjectively, or even arbitrarily, dare i say.