San Francisco supervisors split, decline to remove sheriff after ethics commission finds misconduct

San Francisco supervisors declined to remove Sheriff Ross Mercarini on Oct. 9, 2012, after a daylong hearing that followed an Ethics Commission recommendation that the board sustain two counts of official misconduct stemming from his plea in a false-imprisonment case. The board voted on a motion to sustain the Ethics Commission's finding as to counts 4 and 5; the motion failed because it did not reach the nine-vote threshold required to remove an elected official.

The hearing reviewed an Ethics Commission investigation that the commission chair described as extensive. Ben Herr, chair of the San Francisco Ethics Commission, summarized the commission's work and outcome: "The commission determined by unanimous vote that the mayor had proven that the sheriff had abused Eliana Lopez on 12/31/2011," and that the commission by a 4-to-1 vote recommended sustaining official-misconduct findings tied to the New Year's Eve incident and the sheriff's subsequent conviction.

Why it mattered: The sheriff is the city's top law enforcement official and oversees the jails and programs that touch domestic-violence cases. The mayor's legal team argued the conviction and probation undercut the sheriff's ability to lead those functions and that the charter permits removal when wrongful behavior relates to the duties of office.

Representatives for the mayor urged the board to accept the Ethics Commission's recommendation. "I am Sherry Kaiser. I am a deputy city attorney. And I've been representing the mayor in these proceedings. I'm here today on behalf of the mayor to ask you to adopt the careful and thoughtful recommendations and findings of the Ethics Commission and to sustain the charges of official misconduct against Sheriff Mercarini," Kaiser told supervisors.

Defense lawyers for the sheriff argued the opposite: the conduct occurred before he had taken the oath of office and did not amount to official misconduct as defined in the charter. David Wagner, counsel for Sheriff Ross Mercarini, said the allegations and the commission's recommendation were unprecedented and urged the board to reinstate the sheriff: "This is the first time that the San Francisco Ethics Commission has ever made a recommendation to the Board of Supervisors regarding Charter Section 15.105. It's only the third time in the history of the city the board has ever been asked to decide on a mayor's suspension of an elected official."

The board's deliberations focused on two legal points: whether the charter's official-misconduct provision requires that wrongdoing occur while the official is performing duties of office or acting under color of law, and whether wrongdoing that occurred between election and swearing-in can be treated as official misconduct. Jurors on the Ethics Commission were divided on those interpretations; the commission ultimately read the charter to permit removal in this set of facts. Several supervisors said they were troubled by a broad reading that would allow removal for private acts unrelated to the duties of the office.

Votes at a glance - Motion: Sustain charges of official misconduct (counts 4 and 5) based on the Ethics Commission recommendation. - Outcome: Motion failed to reach the nine-vote removal threshold; the board did not sustain the charges. - Vote result reported in the hearing: 7 in favor, 4 opposed; nine votes required to remove an elected official.

What the board said and what comes next Supervisors who voted to sustain the charges emphasized the sheriff's role as the city's chief law-enforcement officer and the direct subject-matter relationship between domestic violence and the sheriff's responsibilities. Supporters of removal said the sheriff's conviction and probation rendered it difficult to continue to exercise the duties of sheriff without undermining public trust in the office.

Opponents argued that the charter provision should be interpreted narrowly and that the commission's reading risked creating a broad, unpredictable tool that could be misused for political ends. Several supervisors who voted against the motion noted procedural and constitutional questions about expanding the provision beyond wrongful acts committed while acting under color of law.

The immediate result is that the board did not remove the sheriff. The decision also left open both political and legal consequences: the mayor and other parties have previously mentioned possible appeals, and the public debate in San Francisco remains sharply divided. The hearing and its long record are public; supervisors and advocates indicated they expected more community conversations and possible policy work on how the city responds to domestic violence and holds public officials accountable.

The board recessed after the vote and completed later business; the meeting was officially adjourned the same evening.

Quotes - Ben Herr, chair, San Francisco Ethics Commission: "The commission determined by unanimous vote that the mayor had proven that the sheriff had abused Eliana Lopez on 12/31/2011." - Sherry Kaiser, deputy city attorney (representing the mayor): "...ask you to adopt the careful and thoughtful recommendations and findings of the Ethics Commission and to sustain the charges of official misconduct against Sheriff Mercarini." - David Wagner, counsel for Sheriff Mercarini: "This is the first time that the San Francisco Ethics Commission has ever made a recommendation to the Board of Supervisors regarding Charter Section 15.105."

What to watch for - Any legal filings or court actions that challenge the board's procedures or the Ethics Commission's findings. - Policy work or proposals from the board or mayor's office on clarifying the charter language used for official-misconduct removal, and any proposals to strengthen domestic-violence screening and prevention in city law-enforcement agencies.

Ending Supervisors said they were troubled by the choice they had been asked to make and by the implications of whichever path they chose. The vote kept Ross Mercarini in office for the time being, but the political and legal debate over how the city defines and enforces "official misconduct" — and how it balances restorative justice, public safety and elected-accountability — is likely to continue.