A judge today issued a tentative ruling denying suspended San Francisco Sheriff Ross Mirkarimi's motion to remove City Attorney Dennis Herrera from the suspension proceedings.
In his tentative ruling, San Francisco Superior Court Judge Harold Kahn denied the motion by the attorney of Mirkarimi, 50, who was suspended last month by Mayor Ed Lee on official misconduct charges and is facing an administrative process at City Hall to decide whether he can keep his job.
Mirkarimi was suspended without pay on March 21, two days after being sentenced to three years' probation and other penalties for his guilty plea to a misdemeanor charge of false imprisonment in connection with a Dec. 31 domestic violence incident involving his wife.
Mirkarimi has a right under the city charter to a hearing on the official misconduct charges before the city's Ethics Commission, which would then make a recommendation to the Board of Supervisors.
Unless nine of 11 board members approve the charges to remove Mirkarimi from office, he would be reinstated as sheriff.
David Waggoner, Mirkarimi's attorney for the suspension proceedings, had filed a motion last week seeking to remove the city attorney's office from the proceedings, arguing it had a conflict of interest by representing the mayor and advising the Ethics Commission at the same time.
"The city attorney cannot ethically serve as both the prosecutor of this attempt to remove Sheriff Mirkarimi and the lawyer for one of the supposedly neutral fact-finding and decision-making bodies," Waggoner wrote.
Herrera responded with a filing on Monday in which he noted that the Ethics Commission and Board of Supervisors would be advised by outside counsel for the suspension proceedings.
Kahn's tentative ruling, issued this afternoon, sided with the city attorney.
"Because the city attorney is representing the mayor in his official capacity with respect to actions he took on behalf of the city in accordance with a provision of the charter authorizing the mayor to take such actions, the city attorney is not barred from representing the mayor in this case," Kahn wrote.
The judge added, "The retention of outside counsel by the Ethics Commission and the Board of Supervisors moots (Waggoner's) argument that there is a conflict."
A hearing on the issue is scheduled for Thursday morning at the Civic Center Courthouse. Kahn will also consider on Friday a separate motion by Mirkarimi's attorneys to overturn his suspension.
The Ethics Commission is then scheduled to begin its hearing on the official misconduct charges next Monday, barring any changes as a result of the judge's ruling on Friday.
Vicki Hennessy, a former chief deputy with the department, was appointed by the mayor as interim sheriff while the case moves forward.