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

San Francisco Superior Judge Harold Kahn issued the tentative ruling Thursday and, after hearing from both Mirkarimi’s counsel and the city attorney’s office, said Friday that the matters raised by Mirkarimi’s counsel “can and should be addressed by the administrative procedure.”

On Monday, the city’s Ethics Commission will begin a hearing on the official misconduct charges. The commission will make a recommendation to the Board of Supervisors, which will issue the decision on whether to remove Mirkarimi from office.

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Mirkarimi’s attorney David Waggoner raised concerns this morning that the ad-hoc process “is completely indefinite” and that Mirkarimi “cannot get and expect to get due process” without specific guidelines in place for the Ethics Commission hearing.

Kahn called the process “peculiar” but not so much so “that I should pull the plug before it starts.”

KCBS’ Margie Shafer Reports:

He invited Waggoner to return to court should something go “awry during the hearing” and should the defense’s hypothetical concerns materialize.

Mirkarimi’s attorneys had 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.

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.

Mirkarimi, 50, 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.

“All that can be raised before the Ethics Commission and before the Board of Supervisors,” Kahn said during Friday morning’s hearing.

Outside the courtroom, Deputy City Attorney Sherri Kaiser said, “I think the judge got it absolutely right that the place to decide this is before the Ethics Commission.”

Waggoner said that the defense was disappointed by yet respectful of Kahn’s decision.

He would not comment on whether Mirkarimi would testify at the Ethics Commission hearing.

However, moments earlier Kaiser said, “Certainly the sheriff is going to have to testify under oath and not just to the media.”

Days before his trial was expected to start last month, Mirkarimi pleaded guilty to a misdemeanor false imprisonment charge and was sentenced to three years’ probation and other penalties. He was suspended without pay by Mayor Ed Lee on March 21.

(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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