wouldn't want to take a recommendation on it, simply because that is not what i think we're authorized to do under the charter. and if we have been true to what we each believe the charter allows or doesn't allow and i understand commissioner renne's point of view as well, but for myself, i think because i have been sticking to what i think the charter allows and what it doesn't allow. so i wouldn't stray from it at this point at this stage. so for my point of view, i think our job was just to give a recommendation about whether to sustain the charges and that is it. that is all we were asked to do and tasked to do. so for that reason i am also not inclined to take a vote that i probably don't see that we are authorized to do, to make some kind of recommendation that isn't found in the charter or isn't grounded in the charter. >> mr. hemblig, do you have a view on this? >> i stated my view at the last meeting. i believe that the mayor has discretion about whether to bring charges. but the charter spells out what decision is required of this body and that is to decide whether or not to sustain those charges. that doesn't mean that there would be anything unlawful about you making other recommendations, but what the charter asks of the ethics commission is does it find that the charges are sustained? and what it asks of the board of supervisors is the same question and if three-quarters of the board of supervisors vote to sustain the charges, then there is no discretion on the penalty. the penalty is removal from office. so i think the charter anticipates a decision here on whether or not to sustain the mayor's charges, a decision by the board as to whether or not to accept your recommendation and nothing more, nothing less. >> commissioner was there anything further? on the issue of making a motion for us to vote on the -- on what the penalty should be, i am not in favor of that for the reasons that we discussed. if you want to put in something -- i guess if there was some sort of concurring type of opinion, you wanted to put in, statements about what your view of what the punishment should pe, that could be something that we could add, not as part of the majority opinion, but something that is separate. that could be done, but i would ask what your viewpoint is on whether that is something you would like to do? >> well, i mean based on the discussion and what mr. hemblig as indicated and has indicated before, our charge, i guess is quite specific, and that is to decide on the merits of what we voted, the counts on which we agreed sheriff mirkarimi was guilty. i don't want to go beyond what the charter asks us to do. i think on a personal level, you know, i want to be clear about what i feel, and i don't know if this is the appropriate place to do that. if it is, then i would, you know, certainly add something to the report. it's not a dissension, but just to be on record of what i feel should happen when the board considers this, but it's not an official recommendation. >> any other views on the issue of a proposal to the board on penalty? >> i mean, i think it would be entirely appropriate for commissioner hayon to add her view. that would be appropriate for the board to know. >> i am fine with that. the issue though is timing. i don't think -- i certainly don't want to have to meet again to ratify this document again. so i think if you want to put something into the record, if you want to right now put in language into the record on your concurring view, then i think that would be fine. but i am not inclined to have a procedure where you go back, draft it and we come back and have to ratify something else. >> under no circumstances am i suggesting that we do that, but if i may, then i certainly would like to go on record that while we are not charged as a commission in making a recommendation on the penalty, i want to be clear that my own view is that based on our findings, that the appropriate punishment should be removal from office. and that is my personal view. and i would just like to make sure that that is on the record. [ inaudible ] >> there is no motion. >> okay, so the proposal is to add a concurring view from commissioner hayon stating that she supports a finding that official misconduct should result in the sheriff being removed from office. is that fair? okay. so we will consider that. >> so my question is will that simply be on the record in the minutes of today's proceeding, but not in the official document, so that we don't have to go back and review it? >> i guess it's up to you. what i was suggesting, if you don't want it in the document, that is fine and we don't have to go back and review. i suppose there is an option for essentially mr. hem abouts hemhemblig to put in that language and vote on that as amended. >> that would be fine with me. what i don't want is to hold up the proceedings. i do not want to do anything that would hold up these proceedings any further. >> okay. so the draft as currently amended and i'm sure there will be other amendments, contains a one-sentence concurence from commissioner hayon. do you have that language in mind. >> the language i have is commissioner had aon supports a finding that the official misconduct in this case merits the sheriff's removal from office. is that accurate? >> that is accurate. >> okay.lp >> there were some additional edits proposed by the mayor and i think that they are accurate. so i would propose that on page 2 lines 1 and 2 should now read, "this matter presents the first time that the ethics commission has provided a recommendation to the board of supervisors regarding charges of official misconduct under charter section 15.105." >> did you get that? >> no. >> one more time, please. >> this matter represents for the first time that -- and strike "the mayor has presented the," ethics commission has provided a recommendation to the board of supervisors regarding charges of official misconduct. so you would strike the "with" and in line 1 strike "mayor has presented it." is there any objection to that from the commissioners? in the next edit that the city attorney proposed, which i think is correct is on page 4, line 1. line 1 begins "examine any witness except the mayor." the city attorney has pointed out that the sheriff also cross-examined chief of police william lansdowne and it should now read, "except the mayor and san n ou have a view on that? >> i would object to adding any language that attempts to change what the commission decided on august the 16th that is not ultimately relevant to what the commission is tasked to do. >> i can appreciate that view, but my question is did you stipulate what the sentence was? >> yes. >> okay, thank you. >> that is not reflected -- we stipulated to several of these facts. but the way it reads here is that the commission unanimously finds that the mayor proved the facts. well, if we stipulated to the facts already, then the mayor didn't need to prove them. >> okay. i have no objection to putting in the sentence in "finding of fact 7." >> excuse me, i need that sentence then. what i have is hree years' probation, domestic violence counseling and a fine. it is this conviction and sentence -- ." >> that part i don't agree should be put in the findings of fact? >> the sentence i just started? >> yes. >> and i think whatever the sentence is should be accurate as reflected in the stipulated portion of the amended charges. >> i agree. >> when it says, "the commission," i can tell you where that language is located. i can tell you where the language is located. it's in paragraph 31, of the amended charges of official misconduct. and it's the second sentence. the court imposed sentence consistent with the march 12th, 2012 plea agreement and ordered sheriff mirkarimi to be placed on three years probation under supervision of the san francisco adult probation department and then sets forth -- you may want to shorten it, but that is the stipulated language from the amended charges. >> what was the last clause? >> i actually did not finish. "under the terms and conditions that he was to serve one day in county jail with credit for time served, perform 100 hours of community service pursuant to penal code section 1203.97 and to participate and successfully complete 52 weeks of domestic violence counseling pursuant to penal code second, 1203.97, pay a $400 domestic violence fine pursuant to the same section and enter parenting classs if deemed appropriate by the adult probation department. >> would it be appropriate is to to say that the court imposed a sentence as reflected in 31 of the amended charges? >> that is fine with me. >> that is fine with me, too. >> that is what i propose. to the extent that the majority wants to add language to the majority portion of this order, what did you have in mind and is there actually agreement to include such language? and i do think the commissioners should consider the danger of adding justifications that were not addressed at the hearing. i do not -- >> i will withdraw them. >> okay. commissioner renne, you had a third amendment? >> no, that is all i have. thank you. >> commission renne, you are withdrawing the proposal with respect to the conviction, but what about with respect to the credibility issue? >> just the latter one that we were talking about. >> okay. >> because the chairman has raised the question that we may not have specifically discussed that matter on august 16th and i don't want to confuse the record. so it speaks for itself >> okay. with respect to commissioner renne's first proposal on the credibility issue, i think that can go on page 6, line 6, right after the quote -- the end quote and right before, "in addition this conduct relates...." >> mr. hemblig, do you have that? >> can you read that language again? >> in that regard the commission did not find credible the version of the incident as described by the sheriff and miss lopez at the hearing. rathern commission finds that the evidence contained in miss lopez' video was more credible. >> commissioners i am going to make a general objection to including that. i don't think the commission made that with respect to credibility. if the commission did so, i would appreciate a cite to the transcript. >> i think the majority is right that we did discuss that extensively. it wasn't a basis for a finding of fact, but there was a uniform -- i think a uniform view in the majority's opinion that the video was more credible than the testimony. and i think they are entitled to provide the board with the view that they stated on the 16th as to how they view the evidence. so your objection is noted. if any other commissioner would like to respond, i open it up. any other proposed changes to the draft order? okay. at this point one other thing that we should discuss in relation to this order is the presentation to the board of supervisors. i understand that the board wants someone from the commission to provide a short presentation as to the findings that the commission made and the procedure that the commission followed. i am proposing to the commissioners that mr. hemblig play that role. i think he is clearly a neutral in this. he has been here for all of it. he drafted large parts of this order and has in large part been following and closely tied to what has been going on here. any other views from my fellow commissioners? yes, mr. wagner? >> i also have some suggested changes to the finding of fact and recommendations. i can address that first. >> sure. >> in general i object to the overall language of the draft findings. i think that the document is very one-sided and doesn't mention for example that the commission unanimously rejected many, if not all of the contested factual allegations made by the mayor. for example, as to misuse of guns as to dissuasion and to page 4 where it says the commission denied the sheriff's request for subpoenas as to collateral issues and describe those issues and the issue was whether or not the major commited perjury and that is why we requested those subpoenas. that is not reflected in the document and finally and most importantly, well, two other points. on page 5 in the "findings of fact," in paragraph 3, it refers to "acts of verbal and physical abuse." without saying what those were. i don't think that the commission actually made a determination other than the arm grab that there were any other acts of "verbal and physical abuse." similarly is, the sentence right after that, using the phase "with such force." obviously if the arm was bruised, then that is implied. so i don't think that the commission had the discussion about whether or not to use that phrase. and finally on page 6, the first sentence of the recommendation reads, "the board should sustain the charges of official misconduct against sheriff ross mirkarimi based on, et cetera conduct on the incident on the 31st as reflected in counts 4 and 5." i take strong issue and object very strongly to the commission making this recommendation as stated here. because that is not what the commission decided. and commissioner renne pointed out on august 16th that the counts are the same as the charges. well, the commission did not unanimously or otherwise sustain any of the mayor's counts in their totality. rather the commission decided that there was official misconduct going back to the incident on december 31 as reflected in counts 4 and 5. that is not the same thing as sustaining counts 4 and 5. the commission did not sustain or recommend to sustain count 4s and 5 and the commission did certainly not recommend to sustain the charges, which implies all of the charges. so i think at a minimum, this document should be clarified to reflect what the commission actually did and did not do. but it did not sustain the charges. certainly not as written by the mayor. and i think this document should reflect that the commission did not sustain any of the six counts and, in fact, only found that two of the counts, 4 and 5, there were elements of those counts, parts of those counts that a majority of the commission agreed with, but certainly not all of those counts. >> let me start with that particular point and we'll address each of those in turn. on your last point you are complaining then about the statement on page 6, line 1 through 4. is that right? >> yes. did not say that the board should sustain the charges of official misconduct against sheriff ross 6รง0 on the seriousness of the incident that occurred december 31st, 2011, and the subsequent conviction as reflected in counts 4 and 5 of the amended charges of oehl misconduct. that is the part you are complaining about, right? >> yes, and specifically the first five words . >> well, on page 16 11 of the transcript, there is a motion that says, "is there a motion to sustain the charges as to the conduct that occurred on incidence 31st, 2011 and subsequent conviction as reflected if counts 4 and 5 of the amendment charges of official misconduct." so i think it's pretty clear that the order reflects the motion that was made, seconded and approved by the commission. okay. your concern about the facts that are not included here. meaning the fact that we found there wasn't sufficient evidence on the guns or other conduct. i am certainly not suggesting that we didn't make those findings and i stand by them and i think we were absolutely right to find that the mayor did not sustain his burden on many of the facts. but a finding of fact is a place to put in what we actually found, not what we didn't find. so that is why we didn't include those in there. with respect to -- i mean with respect to your concern about how we crafted the language on the denial of the subpoenas. you know, i suppose i'm open, if you think that there should be word changes, but i think this accurately reflects what we decided. do you have specific things about this that you think are inaccurate? >> well i think that earlier you referred to the fact that the commission did not decide the prosecutorial misconduct. i don't know if you consider lying under oath prosecutorial misconduct, but it was alleged and we requested subpoenas and the commission declined to look into the issue and i think the board in this document, the vice summary was a major aspect of the case and reported for weeks in the press. two officials were to testify under oath to the mayor's perjury and this language minimizes all of that. >> mr. wagner, with all due respect, we didn't ignore it and, in fact we talked about at t at some length and is dueded that under and/or too collateral to address and it's in the record. the board can look at it. i frankly think this language accurately reflects what we decided. again, if you have specific words that you think are inaccurate, you can point them out. but i certainly don't think this should come out. this is simply a reflection of what we decided. we're not making any judgment calls as to in this paragraph as to whether or not the mayor's testimony was otherwise credible. >> may i add something? >> yes, commissioner liu? >> in addition i also think it's important to remember that chair hur during that meeting, whichever date that that was that we discussed our request for additional evidence and testimony, that chair hur pointed out that perjury charges are not and were not before us. our commission was not asked to pursue charges of perjury against the mayor. your request to us was whether to allow evidence from four additional witnesses on these other issues, and your hope was to impeach the mayor with those additional issues. and so what we discussed and what was briefed was the fundamental rule of evidence, that we have the discretion and courts have the discretion to not allow evidence and witness testimony for the purpose of pursuing issues that are collateral and not directly relevant to what is going on and what is at issue in the hearing. so i would like to just state for the record we were never asked to pursue perjury charges and were not the body to do that. that is not our job and that was never our job whether or not to decide to pursue perjury charges against the mayor is not within our purview at all. so i just would like to correct the record on that. >> any other commissioners want to weigh in on this? >> i am somewhat sympathetic to your statement that there is nothing in here that reflects the fact that we rejected a number of charges that were and is there some language that you specifically would like to have us insert and where would you like to have it? so that the board is aware of the fact that in a sense we only accepted one charge of misconduct and that was the misconduct relating to the incident of december 31st and the conviction. and everything else that the mayor choose to throw in we rejected. i agree. and i don't have any problem if you wanted to put that in. i don't know if other commission members would, but i think it's a fair statement. >> what do the other commissioners think about that? my concern is that when you start saying what you didn't -- facts that weren't proven, you kind of open the door to, well, how many should we in include and exactly how should we say them? with that said, i certainly, it's crystal clear in my mind that what we found that certain allegations were not proven and if the commission feels that we should add them, i don't necessarily have a problem with that. as a practical matter the crafting of language may present some issues. so with that, i ask whether commissioner hayon or commission liu have anything to add? >> what you are proposing mr. wagner, along the lines that the commission did not find evidence sustaining charges of witness dissuasion and interference with a police investigation? those are the two that stick out for me, perhaps, if you wanted to include a sentence along those lines? >> i think the guns would also be the third major allegation that we found was not proven. >> thank you, commissioners for considering this point. i think my concern is tt