Mirkarimi's attorneys went to court asking that he be reinstated immediately and if not, that he get paid his $199,000 a year salary while he fights his suspension and pursues his case. Attorney David Waggoner filed a writ in San Francisco Superior court trying to overturn his suspension and put him back in his position as sheriff. "The law on official misconduct is very, very clear," he told ABC7.
Mayor Ed Lee said the sheriff was guilty of misconduct after he pleaded guilty to a misdemeanor charge of falsely imprisoning his wife back in December. The incident happened before Mirkarimi was sworn into office, so his attorney describes the mayor's actions as "abuse of discretion... not supported by substantial evidence."
"For a public official to be removed for official misconduct, the conduct in question has to have occurred while the official was in office and that conduct has to have a very direct relationship to the office. In the case of Sheriff Mirkarimi, neither of those things are true," Waggoner said. He also says suspending the sheriff without pay violates his due process rights and is causing immediate irreparable harm. "There was no investigation. There was no findings of fact," he said.
However, when he suspended Mirkarimi last week, the mayor said he had a firm legal basis. "Sheriff Mirkarimi's actions and confession of guilt clearly fall below the standards of decency and good faith rightly required of all public officials," he said. The mayor was not surprised by Tuesday's legal action. "We expected him to and he said that he would fight this," he said.
"The fact is that Mirkarimi's attorneys have a very powerful argument here. They can say that the phrase is still 'official misconduct' and you can't commit official misconduct if you're not an official," said ABC7 legal analyst Dean Johnson.
Mirkarimi is now fighting in two arenas, the superior court where his attorneys are asking for a speedy hearing date, and the city's ethics commission which is expected to begin proceedings next month.