Misconduct “in office” encompasses the time period after the election, not just after an elected official is sworn-in, according to the city attorney, who released a rebuttal to Sheriff-in-Limbo Ross Mirkarimi's request that he should be reinstated as the county sheriff.
The 33-page counterattack, filed in San Francisco Superior Court on Monday, came just two weeks after Mirkarimi filed a writ of mandate charging that Mayor Ed Lee did not have the legal grounds to suspend him because of his alleged “misconduct,” which amounted to a New Year's Eve domestic dispute with his wife, Eliana Lopez. Mirkarimi last month was convicted of false imprisonment. That argument occurred before Mirkarimi officially took office on Jan. 8, 2012.
However, in its opposition to the writ, the city argues that the Charter's language “does not distinguish between an unsworn officer, like the Sheriff-Elect, and a sworn officer, like the Sheriff…. [A]ny line to be drawn is much more sensibly placed at the time of the most recent election that at the oath of office.”
Mirkarimi “took on new duties in his official capacity as Sheriff-Elect to prepare for office,” the document states, noting that he participated in a series of transition meetings with the Sheriff's department beginning on Nov. 22. “The participants at these meeting understood that [Mirkarimi] was present in his capacity as the incoming Sheriff, not as a private citizen.”