Mirkarimi's lawyer, David Waggoner, filed a writ of mandate with the Superior Court today charging that Lee stepped outside of his mayoral powers when booting Mirkarimi from his post while the Ethics Commission investigates him.
The mayor's action "was an abuse of discretion and not supported by substantial evidence," the writ argues.
The 21-page counterattack claims that the suspension is invalid because the "misconduct" occurred before Mirkarimi took office in January, and does not directly relate to his duties. It also states that this level of punishment "for a misdemeanor which does not constitute moral turpitude is a denial of due process," and that the "language of the Charter defining 'official misconduct' is unconstitutionally vague."
"On its face, the mayor's suspension is illegal," Waggoner told SF Weekly.
If the court agrees with Waggoner and rules that the misconduct charges are illegitimate, then the city's entire investigation -- from Ethics Commission hearing to Board of Supervisors vote -- ends, and Mirkarimi will move forward as sheriff.
In addition to challenging the basis for Mirkarimi's suspension, the writ accuses the city of violating his right to due process by suspending him without pay during the investigation -- a decision that the city has yet to explain.
"That charging document doesn't say anything at all about suspension without pay," Waggoner said. "It doesn't explain why it's without pay, it doesn't give the legal authority for it being without pay. The courts are fairly solid on the point that you cannot summarily suspend someone without pay without any due process at all.
Mirkarimi, who pleaded guilty to false imprisonment last week has, since the start of this San Francisco saga, declared that his conduct should not cost him his office, because it was it not connected to his position as sheriff.
In the official misconduct charge Lee filed last Wednesday, however, the mayor argued that Mirkarimi's actions on December 31 -- a domestic dispute with his wife in which he allegedly grabbed her arm, causing a bruise -- are "fundamentally incompatible with holding the Office of Sheriff."
The charge used the vagaries in the City Charter to argue that the misconduct did not have to occur while Mirkarimi was in office, nor must it directly relate to the duties of office. Quoting the Charter, the brief stated, "'Conduct that falls below the standard of decency, good faith and right action' impliedly required of all police officers is official misconduct, regardless of whether there is a direct nexus between the conduct and the specific duties of the officer."
Today's writ counters the city's interpretation of the Charter.
"Official misconduct still means what it says: the misconduct must be related to the office, and the person who committed the misconduct must be in office, regardless of how broadly one might construe 'conduct that falls below the standards of decency, good faith and right action,'" the document states.
The writ calls the city's interpretation unprecedented.
"If the mayor's interpretation is correct, then any public official can be removed from office for any past conduct," said Waggoner. "It's an unreasonable interpretation."
The writ also refutes the city's suggestion that Mirkarimi's experience as an offender in the corrections system -- a one-day stint in jail and a three-year probation sentence -- undermines his ability to be Sheriff, noting that the city didn't even try to explain why this would be the case.
"Petitioner's one-day jail sentence is not sufficient connection between the conduct alleged and the duties of his office because the sentence had no impact on Petitioner's ability to carry out his duties as Sheriff," the writ states, before noting that the misconduct charges don't "mention how Petitioner's probation is related to official misconduct; the two facts are simply stated without any attempt to tie one to the other."
Waggoner said he expects the court to hear the writ within the next two or three weeks. The Ethics Commission has not yet set a date for a hearing on the misconduct charges.
"I don't anticipate [the Ethics Commission] having a hearing on the merit substance of the case until the court has an opportunity to weigh in on the writ," said Waggoner.