City attorney responds to request by Ross Mirkarimi to be removed from case 

click to enlarge Ross Mirkarimi, pictured, has filed a legal request to have San Francisco City Attorney Dennis Herrera removed from his case. The City Attorney's Office disputed that request in a legal filing Monday. - S.F. EXAMINER FILE PHOTO
  • S.F. Examiner file photo
  • Ross Mirkarimi, pictured, has filed a legal request to have San Francisco City Attorney Dennis Herrera removed from his case. The City Attorney's Office disputed that request in a legal filing Monday.

San Francisco City Attorney Dennis Herrera on Monday filed a response to a motion by the attorneys of suspended Sheriff Ross Mirkarimi, who is seeking to have Herrera removed from the suspension proceedings, a move he said was "utterly without merit."

Monday's filing was the latest in a back-and-forth between the city attorney's office and attorneys for Mirkarimi, who was suspended by Mayor Ed Lee last month on official misconduct charges following his conviction in a domestic violence case involving his wife.

Mirkarimi pleaded guilty to a misdemeanor false imprisonment charge and was sentenced on March 19 to three years' probation and other penalties. Lee officially suspended him without pay two days later.

Mirkarimi has the right under the city charter to a hearing on the official misconduct charges before the city's Ethics Commission, which would then make a recommendation to the Board of Supervisors, which would need the approval of nine of the board's 11 members to remove him from office.

David Waggoner, an attorney representing Mirkarimi in the administrative proceeding, filed a motion last week arguing that the city attorney has a conflict of interest because it is representing Lee in the proceedings and was also advising the Ethics Commission at the time.

"The city attorney cannot ethically serve as both the prosecutor of this attempt to remove Sheriff Mirkarimi and the lawyer for one of the supposedly neutral fact-finding and decision-making bodies," Waggoner wrote.

Herrera responded in Monday's filing by noting that the Ethics Commission last Thursday announced that they would be advised by outside counsel for the suspension proceedings, which Herrera wrote "should eliminate all of (Mirkarimi's) concerns" about a potential conflict of interest.

However, Waggoner has chosen to continue with his motion, which Herrera wrote "is calculated simply to delay the proceedings ... and to drive up the litigation costs borne by San Francisco taxpayers."

He added that even if the city attorney's office was still representing the Ethics Commission, there would be no conflict of interest because the office employs ethical screens that separate prosecuting attorneys from those advising the commission.

Herrera wrote that the attempt to remove his office from the proceedings has "no factual basis ... let alone a credible legal argument.

This is an abuse of the court process and a waste of judicial resources."

A judge will consider the motion in a hearing this Thursday in San Francisco Superior Court.

That same judge, Harold Kahn, will also consider on Friday a separate motion by Mirkarimi's attorneys to overturn his suspension.

The Ethics Commission is scheduled to begin its hearing on the Mirkarimi matter on April 23 barring any change as a result of the judge's rulings this week.

Vicki Hennessy, a former chief deputy sheriff, is serving as interim sheriff while the case moves forward.

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