Ross Mirkarimi asks court to let him go back to work 

click to enlarge Sheriff Ross Mirkarimi, right, has filed a legal petition asking to allow him to go back to work. Mayor Ed Lee suspended the sheriff without pay after Mirkarimi pleaded guilty to charges connected to an alleged domestic violence incident with wife Eliana Lopez, left. - S.F. EXAMINER FILE PHOTO
  • S.F. Examiner file photo
  • Sheriff Ross Mirkarimi, right, has filed a legal petition asking to allow him to go back to work. Mayor Ed Lee suspended the sheriff without pay after Mirkarimi pleaded guilty to charges connected to an alleged domestic violence incident with wife Eliana Lopez, left.

Embattled San Francisco Sheriff Ross Mirkarimi challenged his ongoing suspension without pay on Tuesday, following Mayor Ed Lee’s initiation of removal proceedings last week.

The mayor suspended Mirkarimi and appointed a replacement sheriff following his court sentencing in a high-profile domestic violence case involving his wife. Mirkarimi pleaded guilty to the false imprisonment charge earlier this month and three other charges were dropped as a result.

David Waggoner, Mirkarimi’s attorney in a potential Ethics Commission hearing on the matter, argued in a civil court writ that the “official misconduct” section of the City Charter that was used as justification for Mirkarimi’s suspension is unconstitutional.

Waggoner’s argument also relies on Mirkarimi having not yet been sworn in as sheriff at the time of the New Year’s Eve incident and that he was denied due process when his pay was revoked, because the misdemeanor to which he pleaded guilty does not rise to the level of moral turpitude. Mirkarimi was elected in November and sworn in on Jan. 7 — one week after the domestic violence incident at his home.

The City’s case against Mirkarimi — prompted by the Mayor’s Office and carried out by the City Attorney’s Office — argues that the charter does not require an elected official to be in office at the time of misconduct, and that the malfeasance does not have to be directly related to the office. Nevertheless, The City’s case says the false imprisonment charge directly relates to Mirkarimi’s situation, given that the Sheriff Department’s main role is oversight of jails.

Both Mirkarimi and his attorney have argued that the misdemeanor does not affect his ability to serve as sheriff.
“The law is crystal clear that an elected official cannot be removed for conduct that occurred before they took office and is not directly related to their job responsibilities,” Waggoner said in a press release. “Mayor Lee’s suspension of Ross Mirkarimi violates the law in several respects and we are asking the court to intervene and reinstate him.”

Mirkarimi has asked San Francisco Superior Court for a hearing on the challenge this week, although none had been scheduled as of Tuesday afternoon. If Mirkarimi’s suspension case moves forward, it would first be heard by the Ethics Commission, followed by a final decision by the Board of Supervisors. Nine of 11 supervisors would have to vote in favor of upholding the suspension to remove Mirkarimi permanently.

John St. Croix, executive director of the Ethics Commission, said a hearing will likely come in mid to late April. The City Attorney’s Office offered little comment, except that an official response to the challenge is being prepared.
Francis Tsang, a spokesman for the Mayor’s Office, said the challenge “wasn’t unexpected.”

dschreiber@sfexaminer.com

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