SLAPP-happy in Alameda

Last week, the City issued a press release touting its litigation victory over former Fire Chief Dave Kapler and rubbing the former chief’s nose in the result.  The release crowed that Kapler had “learned the hard way” that messing with the City “can carry a very hefty price tag” and quoted Mayor Marie Gilmore as proclaiming that the City had been “vindicated” in Kapler’s “unsuccessful attempt to shake down and intimidate the City.”

This may strike some as over the top, even for an administration not known for modesty about its accomplishments or civility toward its opponents.  It’s not as if the City had vanquished Satan at the battle of Armageddon.

In fact, however, at least a little bit of horn-tooting is in order.

The real significance of the victory wasn’t that the City got a judgment dismissing Kapler’s wrongful termination suit or requiring him to pay the City $260,000 – that would barely cover the salary and benefits of another fire captain.  It was that the City had prevailed using a litigation tactic that, if upheld in later cases, will give Alameda and other municipal employers a potent instrument to use against employees who sue to challenge their dismissal.  Indeed, the City itself already has used the same tactic successfully against former Interim City Manager Ann Marie Gallant, although, unlike Kapler’s, her suit remains pending.

The common background of the two cases is that Gallant, with Kapler’s concurrence, ignited the ire of the Alameda firefighters’ union by closing a fire station and laying off and demoting personnel in 2009.  Union members voted “no confidence” in Kapler and then surreptitiously snapped pictures of the chief filling up his personal BMW at a City-owned gas pump.  Local 689 president Dom Weaver doled out the photos to the news media, and, after the ensuing brouhaha, the City decided to fire Kapler, who promptly resigned.

For her part, Gallant sicced the Alameda County district attorney on Councilwoman Lena Tam, whom she accused of leaking confidential information to, among others, local 689 political director Jeff DelBono.  After the District Attorney declined to investigate, Council voted, 3-2, not to renew Gallant’s contract and to place her on paid administrative leave until her time was up.   Newly elected member Rob Bonta provided the tie-breaking vote two weeks after he had been sworn in.

Both Kapler and Gallant sued. In both cases, the City moved to dismiss the suit and the respective trial judges denied the motions.  But both times, the City appealed, and the Court of Appeal reversed.  Kapler’s case was dismissed outright, and Gallant’s was sent back to Superior Court for further proceedings.

The litigation tactic that ended up working so well for the City is called an “anti-SLAPP motion.”  This motion requires the defendant to show that the suit arises from conduct protected by the SLAPP – which stands for Strategic Lawsuits Against Public Participation — statute.  If the defendant can make this showing, the burden shifts to the plaintiff to demonstrate, before she is even allowed to obtain discovery from her adversary, that she is likely to win her case.  And if she cannot, her suit will be dismissed and she will be ordered to pay the defendant’s attorneys fees.

It’s a pretty powerful tool, but its applicability is limited to suits arising from conduct by the defendant “in furtherance of [the defendant’s] right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . .”  As several appellate courts have explained, the statute was designed to protect ordinary citizens against suits filed by powerful private interests to deter them from exercising their legal rights.  For example, suppose a big developer tries to squash opposition to its latest project by suing the homeowners’ group that has been a thorn in his side.  Under the SLAPP statute, the homeowners can file an anti-SLAPP motion and, if successful, get the judge to throw out the developer’s suit and order him to pay their attorneys’ fees.

The defendant in the Kapler and Gallant suits, of course, was not an ordinary citizen but the City of Alameda.  The plaintiff in each case was not a large corporation but an individual former employee.  And, of course, the conduct by the defendant had nothing to do with exercising First Amendment rights; the City simply terminated the plaintiff’s employment.  Now why, you may be wondering, does a statute designed to protect the little guy from being bullied for exercising his constitutional rights apply to a city like Alameda when it takes action against troublesome employees like Kapler and Gallant?

Good question.  The answer isn’t immediately apparent from the language of the statute, which specifies four categories of conduct upon which an anti-SLAPP motion may be based.  The first three categories deem worthy of protection “any written or oral statement or writing” made (1) before an official proceeding, or (2) “in connection with an issue under consideration or review by” an official body, or (3) in a place open to the public or a public forum “in connection with an issue of public interest.”  The fourth protects “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”

If you’re having difficulty fitting a city’s decision to terminate an employee into any of these four categories, well, don’t look for a job on the Court of Appeal.

Since the anti-SLAPP statute was enacted in 1992, no appellate court had applied it to a suit by a municipal employee alleging wrongful termination.  That didn’t dissuade the appellate courts from upholding its use by the City against its former fire chief and interim city manager.  According to the Court of Appeal in the Kapler case, the City’s investigation of the fire chief’s purported pilfering at the pump and its subsequent decision to fire him were protected under the anti-SLAPP statute as “written or oral statement[s] or writing[s]” made “in connection with” an “issue under consideration or review” in an “official proceeding.”  A different three-judge panel in the Gallant case held that not only did the decision to put her on administrative leave fall into this same category of protected conduct but it also constituted a “written or oral statement or writing made before a legislative . . . proceeding or any other official proceeding authorized by law.”

Round peg, meet square hole.   If these two appellate courts are right, virtually every action taken by a city council would be deemed protected conduct, and any suit challenging such a decision could be attacked by an anti-SLAPP motion.  Talk about construing a statute “broadly”!

Having held that the City’s decision to fire Kapler was covered by the anti-SLAPP statute, the Court of Appeal went on to rule that, based on the written evidence filed by the parties, Kapler was not likely to win his case.  So it ordered the lower court to throw out all but one of his claims and to award attorneys’ fees to the City.  The other appellate court spared Gallant the same fate – at least immediately – by remanding the case to the trial court to rule on the strength of her evidentiary showing.

What’s going on here?  Were we to be cynical – or after a job replacing Jeffrey Toobin – we might say that the appellate courts didn’t think much of Kapler’s or Gallant’s claims on the merits.  After all, the fire chief was caught fire-engine-red-handed filling up his Beemer on the City’s dime, and the interim city manager was paid in full for the entire term of her contract.  But, the way the anti-SLAPP statute works, the court can reach the merits only if it decides that the defendant engaged in protected conduct.  So the appellate judges concocted a rationale for finding for the City on this issue to enable themselves (or the Superior Court judge) to get to the underlying claims and chuck the plaintiff out of court without a trial.

But that’s only what we guess happened.  What we know is that the outside counsel who handled the appeals for the City (whose name is Manuela Albuquerque) must have done an extraordinary job.  She not only won the cases but she made new law.  And her victories not only benefited the City of Alameda but they showed the way to other municipal employers facing wrongful termination suits.  (Not surprisingly,  Albuberque is promoting the anti-SLAPP tactic to other city attorneys).

This is where that the boasting at City Hall properly can begin.  Hat’s off to the person on City staff who hired such a creative lawyer to defend the City!  Just think what she could have done in the SunCal case.

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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