The Limits of an EC's Jurisdiction: A Situation in San Francisco

Anonymous

Mon, 10/08/2012 - 05:55

City Related

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 <a href="http://www.sfethics.org/files/2012_0912_findings_and_recommendation.pdf…; target="”_blank”">Findings
of Fact and Recommendation to Board of Supervisors</a>, 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 <a href="http://www.sfgate.com/bayarea/article/Ross-Mirkarimi-to-get-sheriff-s-j…; target="”_blank”">an article today in the San Francisco Chronicle</a>, 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:<blockquote>

"I believe that we must interpret this provision [of official misconduct] narrowly or open the door, open the door wide for potential abuse." 
 
"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."</blockquote>

Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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