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The Limits of an EC's Jurisdiction: A Situation in San Francisco
Monday, October 8th, 2012
Robert Wechsler
Update: October 10, 2012 (see below)
So far, I have ignored this year's most famous local ethics proceeding, against San Francisco sheriff Ross Mirkarimi. The reason I ignored it is the reason I am writing about it now: I think the proceeding should have been dismissed because the sheriff's misconduct involved neither a conflict of interest nor his official duties.
The fact that the complaint was brought by the mayor against an opponent on the city's board of supervisors (the city council), who had just been elected sheriff, and the mayor has the power to remove someone found to have committed official misconduct, makes the case very sensitive politically. This means that it was even more important than usual that the EC be careful not to stretch its authority, or the application of the law, in any way that could make it appear that the EC was instrumental in helping the mayor get rid of an opponent.
According to the Findings of Fact and Recommendation to Board of Supervisors, dated September 11, 2012, the EC voted 4 to 1 that the sheriff had committed "official misconduct" by bruising his wife's arm and pleading guilty to the crime of false imprisonment of his wife, in an incident that occurred after he was elected sheriff, but before he took office. At the time, he was still a supervisor.
I agree with the EC chair, who made the sole vote against finding "official misconduct." According to the Findings, he said that the sheriff had clearly engaged in misconduct, but that it was not “official” misconduct because it was not committed in “relation to the duties of his or her office." He asserted that, without this clear definition, the city risked confusion and ad-hoc future interpretations of “official misconduct."
The chair is right about the risk of ad-hoc interpretations of the definition of "official misconduct" once it has gone beyond conduct taken as an official. The same argument could be used to remove officials for drug problems, traffic violations, and the like.
And why draw the line at criminal misconduct? Why should a misrepresentation or uncivil behavior not form the basis for an allegation of "official misconduct"? After all, falsely accusing another official of a serious crime is both worse than a minor crime and is more arguably official misconduct. If there is no clear line, an EC could be overwhelmed with accusations of such things as misrepresentations and incivility, on and off the job, that will embroil the EC in very long, difficult, and expensive hearings that have nothing to do with conflicts of interest, but a great deal to do with political and personal animosity.
Jurisdiction
Whether an official may be removed from office for misconduct or not, an EC has, I believe, no business getting involved with personal misconduct. An EC is a conflict of interest commission, not an ethics commission in the usual sense of the word "ethics." Its jurisdiction over officials is only as officials, not as citizens. As citizens, officials do not have a fiduciary duty to the community. It would be great if, in their personal lives, they would act as examples for the community, but this is a hope, not an expectation. An EC faced with the term "official misconduct" should interpret it as strictly as possible to include only acts that are done as an official or related to official duties.
Think about this in terms of gifts. An EC has no jurisdiction over a $1,000 wedding gift from an official's friend or family member who seeks no special benefits, directly or indirectly, from the government. However, if there is a relationship both between official and gift giver, and between gift giver and the government, then the EC has jurisdiction over the gift, even if only to provide a waiver.
Think about this in terms of contracts. An EC has no jurisdiction over a contract by a council member to build a fence for a citizen, unless the citizen seeks special benefits from the government, directly or indirectly. How would it be if the EC tried to take jurisdiction over every official's business practices, questioning the prices officials charge for their services or the way they bargain with customers?
What occurred between the supervisor/sheriff-elect and his wife had no relationship to the government or to the supervisor's duties as an official. Had he misused his power to try to prevent prosecution, that would have given the EC jurisdiction over the matter. Had he been trying to prevent the wife from disclosing his misconduct, that would have given the EC jurisdiction over the matter.
Does the fact that he had been elected to a law enforcement position make a difference? No such difference is specified in the ethics code, nor should it be. It might seem worse that a law enforcement official break a law, but this is not a government ethics issue. It is an issue that should be dealt with in personnel conduct rules, as it usually is for police officers. If no such rules exist for sheriffs-elect, then perhaps they should be created. But this is not a job for an ethics commission.
An EC as an Instrument
Overly broad jurisdiction, and the effect it has on the ethics process, is not the only issue here. There is also a question of whether the EC is, or may be seen as, an instrument of high-level officials seeking to get rid of other officials. This would seriously compromise trust in the ethics program. I think that interpreting the term "official misconduct" to include even the most minor criminal misconduct makes the EC appear, in this instance, to be an instrument of the mayor, causing it to ignore the serious ramifications of its decision.
This appearance is made more believable and problematic because San Francisco's EC members are appointed by high-level officials, including the mayor, who brought the charges; the city attorney, who represents the mayor in the proceeding; the district attorney, who would have been involved in the criminal action against the sheriff; the board of supervisors, which will decide on the sheriff's removal; and the assessor, who appointed the dissenting chair. When EC members are appointed by high-level officials, they have an obligation to the public to go out of their way not to look like they are acting on behalf of any high-level official. They may remind the mayor and board of supervisors that they had the choice to allow community organizations to select EC members, and chose to keep control of the process themselves. Therefore, the EC's obligation to preserve trust in the ethics process is solely the fault of the high-level officials themselves.
A Council's Role in an Ethics Program
Tomorrow, the board of supervisors will discuss this matter involving a recent colleague. I think it should find that the law was never intended to give the EC jurisdiction over officials based on their personal rather than official misconduct. And it should amend the ethics code to make this clear to future EC members.
I also think this is a good time for the board of supervisors to consider whether it should be considering any government ethics matter. It should recognize that every time it either lets a colleague off easy or looks like it is taking revenge on a colleague, this will undermine the public's trust in the government and the ethics program. Since the principal goal of an ethics program is to increase the public's trust in government, the current setup is seriously damaging. San Francisco's ethics program has been going from one problem to another. It's time for some serious reform.
Oh, and the supervisors cannot withdraw from this matter. They allowed themselves to be involved in their colleagues' ethics matters, and they have to go through with it, at least this one last time. Then they can take themselves out of the picture.
Update: October 10, 2012
According to an article today in the San Francisco Chronicle, the Board of Supervisors voted 7-4 that Mirkarimi had engaged in "official misconduct" through violence toward his wife (2 of the 4 votes against were by women), but since this finding required 9 votes, the motion failed. Here are a few of the supervisors' comments:
Director of Research-Retired, City Ethics
---
So far, I have ignored this year's most famous local ethics proceeding, against San Francisco sheriff Ross Mirkarimi. The reason I ignored it is the reason I am writing about it now: I think the proceeding should have been dismissed because the sheriff's misconduct involved neither a conflict of interest nor his official duties.
The fact that the complaint was brought by the mayor against an opponent on the city's board of supervisors (the city council), who had just been elected sheriff, and the mayor has the power to remove someone found to have committed official misconduct, makes the case very sensitive politically. This means that it was even more important than usual that the EC be careful not to stretch its authority, or the application of the law, in any way that could make it appear that the EC was instrumental in helping the mayor get rid of an opponent.
According to the Findings of Fact and Recommendation to Board of Supervisors, dated September 11, 2012, the EC voted 4 to 1 that the sheriff had committed "official misconduct" by bruising his wife's arm and pleading guilty to the crime of false imprisonment of his wife, in an incident that occurred after he was elected sheriff, but before he took office. At the time, he was still a supervisor.
I agree with the EC chair, who made the sole vote against finding "official misconduct." According to the Findings, he said that the sheriff had clearly engaged in misconduct, but that it was not “official” misconduct because it was not committed in “relation to the duties of his or her office." He asserted that, without this clear definition, the city risked confusion and ad-hoc future interpretations of “official misconduct."
The chair is right about the risk of ad-hoc interpretations of the definition of "official misconduct" once it has gone beyond conduct taken as an official. The same argument could be used to remove officials for drug problems, traffic violations, and the like.
And why draw the line at criminal misconduct? Why should a misrepresentation or uncivil behavior not form the basis for an allegation of "official misconduct"? After all, falsely accusing another official of a serious crime is both worse than a minor crime and is more arguably official misconduct. If there is no clear line, an EC could be overwhelmed with accusations of such things as misrepresentations and incivility, on and off the job, that will embroil the EC in very long, difficult, and expensive hearings that have nothing to do with conflicts of interest, but a great deal to do with political and personal animosity.
Jurisdiction
Whether an official may be removed from office for misconduct or not, an EC has, I believe, no business getting involved with personal misconduct. An EC is a conflict of interest commission, not an ethics commission in the usual sense of the word "ethics." Its jurisdiction over officials is only as officials, not as citizens. As citizens, officials do not have a fiduciary duty to the community. It would be great if, in their personal lives, they would act as examples for the community, but this is a hope, not an expectation. An EC faced with the term "official misconduct" should interpret it as strictly as possible to include only acts that are done as an official or related to official duties.
Think about this in terms of gifts. An EC has no jurisdiction over a $1,000 wedding gift from an official's friend or family member who seeks no special benefits, directly or indirectly, from the government. However, if there is a relationship both between official and gift giver, and between gift giver and the government, then the EC has jurisdiction over the gift, even if only to provide a waiver.
Think about this in terms of contracts. An EC has no jurisdiction over a contract by a council member to build a fence for a citizen, unless the citizen seeks special benefits from the government, directly or indirectly. How would it be if the EC tried to take jurisdiction over every official's business practices, questioning the prices officials charge for their services or the way they bargain with customers?
What occurred between the supervisor/sheriff-elect and his wife had no relationship to the government or to the supervisor's duties as an official. Had he misused his power to try to prevent prosecution, that would have given the EC jurisdiction over the matter. Had he been trying to prevent the wife from disclosing his misconduct, that would have given the EC jurisdiction over the matter.
Does the fact that he had been elected to a law enforcement position make a difference? No such difference is specified in the ethics code, nor should it be. It might seem worse that a law enforcement official break a law, but this is not a government ethics issue. It is an issue that should be dealt with in personnel conduct rules, as it usually is for police officers. If no such rules exist for sheriffs-elect, then perhaps they should be created. But this is not a job for an ethics commission.
An EC as an Instrument
Overly broad jurisdiction, and the effect it has on the ethics process, is not the only issue here. There is also a question of whether the EC is, or may be seen as, an instrument of high-level officials seeking to get rid of other officials. This would seriously compromise trust in the ethics program. I think that interpreting the term "official misconduct" to include even the most minor criminal misconduct makes the EC appear, in this instance, to be an instrument of the mayor, causing it to ignore the serious ramifications of its decision.
This appearance is made more believable and problematic because San Francisco's EC members are appointed by high-level officials, including the mayor, who brought the charges; the city attorney, who represents the mayor in the proceeding; the district attorney, who would have been involved in the criminal action against the sheriff; the board of supervisors, which will decide on the sheriff's removal; and the assessor, who appointed the dissenting chair. When EC members are appointed by high-level officials, they have an obligation to the public to go out of their way not to look like they are acting on behalf of any high-level official. They may remind the mayor and board of supervisors that they had the choice to allow community organizations to select EC members, and chose to keep control of the process themselves. Therefore, the EC's obligation to preserve trust in the ethics process is solely the fault of the high-level officials themselves.
A Council's Role in an Ethics Program
Tomorrow, the board of supervisors will discuss this matter involving a recent colleague. I think it should find that the law was never intended to give the EC jurisdiction over officials based on their personal rather than official misconduct. And it should amend the ethics code to make this clear to future EC members.
I also think this is a good time for the board of supervisors to consider whether it should be considering any government ethics matter. It should recognize that every time it either lets a colleague off easy or looks like it is taking revenge on a colleague, this will undermine the public's trust in the government and the ethics program. Since the principal goal of an ethics program is to increase the public's trust in government, the current setup is seriously damaging. San Francisco's ethics program has been going from one problem to another. It's time for some serious reform.
Oh, and the supervisors cannot withdraw from this matter. They allowed themselves to be involved in their colleagues' ethics matters, and they have to go through with it, at least this one last time. Then they can take themselves out of the picture.
Update: October 10, 2012
According to an article today in the San Francisco Chronicle, the Board of Supervisors voted 7-4 that Mirkarimi had engaged in "official misconduct" through violence toward his wife (2 of the 4 votes against were by women), but since this finding required 9 votes, the motion failed. Here are a few of the supervisors' comments:
"I believe that we must interpret this provision [of official misconduct] narrowly or open the door, open the door wide for potential abuse."Robert Wechsler
"Tonight's decision is going to communicate a message to our city and beyond as to how we as San Franciscans view domestic violence."
"I think it wasn't shown that when the sheriff grabbed his wife that he used the power of his office to commit violence against her."
"I believe that the sheriff must be capable of expressing emotional control and good judgment in all circumstances."
Director of Research-Retired, City Ethics
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