SAN FRANCISCO (CBS SF) – A judge issued a tentative ruling Thursday denying a motion by suspended San Francisco Sheriff Ross Mirkarimi to overturn his suspension on official misconduct charges.

The tentative ruling by San Francisco Superior Court Judge Harold Kahn comes in advance of a hearing Friday on the motion by Mirkarimi, 50, who was suspended without pay last month by Mayor Ed Lee.

Mirkarimi is awaiting a hearing by the city’s Ethics Commission on the official misconduct charges on Monday. The commission will then make a recommendation to the Board of Supervisors, which will make the ultimate decision on whether to remove him from office.

<strong>KCBS’ Margie Shafer Reports:</strong>

The alleged misconduct stems from a Dec. 31 domestic violence incident in which Mirkarimi grabbed the arm of his wife during an argument, causing a bruise.

He pleaded guilty last month to a misdemeanor charge of false imprisonment and was sentenced to three years’ probation and other penalties.  Lee then suspended Mirkarimi on March 21.

Mirkarimi’s attorneys filed a petition for a writ to overturn the suspension, arguing that the definition of official misconduct was unconstitutionally vague and that the misconduct had to have occurred while the official was in office.

Mirkarimi was still a member of the Board of Supervisors at the time of the incident and was not sworn in as sheriff until Jan. 8.

The city attorney’s office filed a response brief deriding that argument, saying it would give elected officials immunity to commit crimes in the time before they were sworn into office.

Kahn’s tentative ruling sided with the city attorney.

He wrote that Mirkarimi’s arguments for reinstatement “can and should be addressed in the first instance by the Ethics Commission and Board of Supervisors.”

The judge also ruled that Mirkarimi’s suspension should remain without pay, citing a 1935 case involving the city of Vallejo.

Mirkarimi’s attorney Shepard Kopp declined comment on the tentative ruling Thursday afternoon, saying he wanted to wait to speak until after Friday’s hearing.

The ruling comes after Kahn ruled against Mirkarimi on a separate issue in the case earlier Thursday.

Mirkarimi’s attorneys had filed a motion to remove the city attorney’s office from the suspension proceedings, saying it had a conflict of interest because, at the time, it was representing the mayor and also advising the Ethics Commission on the issue.

KCBS’ Margie Shafer Reports:

The city attorney’s office filed a response noting that the Ethics Commission last week announced it was retaining outside counsel on the matter so the conflict issue was moot.

At a hearing Thursday morning, the judge agreed and allowed the city attorney’s office to continue to represent the mayor in the case.

Deputy City Attorney Sherri Kaiser said outside of court following Thursday’s hearing that “it’s understandable that (Mirkarimi) is trying to thwart the proceeedings.”

Kaiser said, “I think there are real reasons why the mayor brought charges,” and Mirkarimi “is in danger, in serious jeopardy of removal.”

(Copyright 2012 by CBS San Francisco and Bay City News Service. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.)


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