S.F. Upholds Right to Hold Public Officials Accountable

Commentary

MARCH 27, 2012

By MICHAEL WARNKEN

I have been casually watching the events in San Francisco involving Sheriff Ross Mirkarimi and the county Board of Supervisors. The sheriff recently plead guilty to misdemeanor domestic violence in an incident involving his wife on New Years Eve.

This very public incident has lead the mayor and city counsel to invoke a rarely used clause in San Francisco’s charter, enacted in 1995 by the voters, to suspend the Sheriff from his position. The Code in the City Charter is enacted as Section 15.105 (e) and allows government agents to be removed for misconduct in official positions.:

“Official misconduct means any wrongful behavior by a public officer in relation to the duties of his or her office, willful in its character, including any failure, refusal or neglect of an officer to perform any duty enjoined on him or her by law, or conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers and including any violation of a specific conflict of interest or governmental ethics law. When any City law provides that a violation of the law constitutes or is deemed official misconduct, the conduct is covered by this definition and may subject the person to discipline and/or removal from office.”

What caught my attention over this is not so much the incident itself or the actions of the Sheriff leading up to it.  It is the fact that this is happening at all.  Most citizens are at least aware of the theory that America’’s system of government works with checks and balances. That theory is a wonderful one, except that in this day and age, it almost never happens.

This is an instance in which it seems to be happening.

On a daily basis, on CalWatchDog.com and other publications that I follow, I read about rampant misconduct in government. I also get information from friends dealing with various problems of corruption. They are trying (often in vain) to do something to set things right. Most of these issues are never dealt with, or dealt with in a cursory manner at best. Generally those who have been caught pilfering the community treasury, or just simply breaking their public trust, end up bowing out. After the news on that issue becomes stale, they move on to the next place and start anew. There is very little redress for those seeking it.

I have spent a tremendous amount time researching this area of the law as it angers me as well. It is disappointing that issues such as basic oversight and systematic accountability have become so arcane. I enjoy an opportunity such as this to dust off my knowledge in this area, since I am certain it is no longer taught in high school civics, much less is acted upon in real life.

Taxation With Representation

Our American founders revolted against the system England had put in place, which enacted taxes upon us without our having any say in the matter. After the Revolution, “The Deal” that we ended up with was that we would pay taxes so long as we had the ability to elect the representatives who voted on those taxes. Once we elected our representatives, even after we paid our taxes, they had to hear the petitions for redress that we sent to those elected.

Redress of grievances is the key part of the petition process with the representation deal. We have representatives so that we can petition them when we are harmed in some way, particularly when it involves the expenditures of public monies. Without this, we aren’t any better off than we were  when England governed us.

One legal scholar, Sai Prakash, summed up the removal process with great simplicity. Prakash is a Law Professor who used to clerk for a Justice on the U.S. Supreme Court, and I consider his thoughts on the matter proper. He noted that all civil officers in government, regardless of their branch, hold their offices with the tenure of “good behavior”, and in the event that their actions came into question, we merely needed to hold a hearing into those actions. The process of investigating government employees should be done by the most proximate legislative entities. For most, that would be a City Council, a County Board of Supervisors or the California Legislature, depending on the actor in question.

Legislative Body

The legislative body was important in the political process because it had the duty of inquiry. Woodrow Wilson spoke of it as the main duty of a legislative body. He said:

“It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. . . and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government.””

And if a representative government failed to do this, then:

“. . .  the country must be helpless to learn how it is being served; . . . The argument is not only that discussed and interrogated administration is the only pure and efficient administration, but, more than that, that the only really self-governing people is that people which discusses and interrogates its administration.””

Petition

In Prakash’s theory (for which he had many examples that indeed played out in American and English history), a party harmed by a state actor needed only to present a petition listing the harms that actor had caused them. The legislative body would then set a hearing and the evidence would need to be examined. The actor who was accused of the misconduct had the right to due process and a fair trial. He had the right to see evidence and the persons making the claim against him. However, the legislative body had the right to hold a trial, and if they found that the actor had breached the tenure of good behavior, that person could then be removed from office.

This process can be applied to anyone holding any office of trust, whether collecting a paycheck from government or not. It also can be used even if there is no provision for it in the local charter and may not be used only if there is a specific constitutional limitation against it or a specific process that must be used. In some instances, such a process may be open to judicial review as the current instance looks to be headed.

This is more or less what is happening in San Francisco. The local charter gives the citizens a process to look into the actions of one of the government agents (the sheriff) and the mayor has initiated the process. To be sure, it is an uncomfortable process, and it can easily amount to public embarrassment and even the loss of a highly visible and cherished office.

However, that is the system of checks and balances that our founders set up for us. And if, from time to time, we do not use this system, then we are simply left cataloging the abuses we endure and are forced to pay for. I can only hope that this sparks more such actions against more public officials!