Closed sessions, closed mind

This was going to be a primarily informational column about which of your neighbors Council selected to make recommendations about who should be appointed as Alameda’s new city manager.

We’ll save that report for the end.  But, as we found out in our quest for the facts, the real story that needs to be told is the extent to which the “closed session” tool was used to run the selection process behind closed doors – and is being used even now to muzzle our elected officials.

We never thought we’d write this sentence, but the appointment by the Council led by former Mayor Marie Gilmore of John Russo as city manager was done far more – yes, we’ll use the word – transparently than the decision by the current Council led by Mayor Trish Spencer to pick Jill Keimach to succeed him.

But we’re pretty sure none of it was Ms. Spencer’s doing.  We have another suspect in mind.

Our interest was piqued when we read in the staff report about Ms. Keimach’s appointment that Council had “determined” at an unspecified date during the selection process to have the three finalists interviewed by three separate panels:  a “community stakeholder panel” appointed by Council, an employee bargaining unit panel, and a “Department Director” panel.

We didn’t recall watching any meeting at which the Council members “determined” to set up three interview panels – nor any meeting at which they appointed the members of the “community stakeholder panel.”  So we decided to try to find out what happened.

As usual, we started with City Clerk Lara Weisiger and Interim City Manager Liz Warmerdam, who always have given straight answers to our various inquiries.  We should have suspected something was up when the reply to our email came from neither Ms. Weisiger nor Ms. Warmerdam but from City Attorney Janet Kern.

Ms. Kern sent us a list of names for each of the three panels – nothing else.  That was fair enough, since the panelists’ identity was all we initially asked for.  But we wanted to know more – including which Council member had appointed which “stakeholder.”

This wasn’t idle curiosity.  Three times already this year, we’ve seen the Inner Ringers pillory Mayor Spencer for the appointments she made (and, in one case, didn’t make) to City boards and commissions.  The argument was that these choices reflected – poorly, of course, according to Those Who Know Best – on Ms. Spencer’s judgment, and even on her ability to serve as mayor.

We didn’t particularly like the Inner Ringers’ resort to ad hominem attacks on the nominees themselves as a way to get at the Mayor, but we agreed that an elected official’s choice of whom to trust to provide input on important public issues says something valuable about the official herself.  We always thought that Dick Cheney should have disclosed more about the membership of his Energy Task Force, and that Hillary Clinton should have done the same for her National Task Force on Health Care Reform.  Why hold Alameda politicians to a lower standard?

So we pressed on.  And this is where it gets interesting.

We turned first to Ms. Weisiger for further information about the appointment of the community panel.  Not having seen anything on the videos posted on the City website, we guessed that it must have occurred at a closed session, and we asked Ms. Weisiger to seek permission from the City Attorney to release the minutes.

A couple hours later, Ms. Weisiger sent us a response that bore every indication – unless the City Clerk had just completed a course in legalese – of having been written by Ms. Kern or one of the three attorneys on her staff.  The appointment indeed had occurred at a closed session, the message stated, but no additional details would be released, since staff wasn’t legally required to make closed-session minutes “available for public disclosure.”

Okay, fine, we thought, we can’t insist that Ms. Weisiger reveal information the City Attorney tells her to keep secret.  But what about the Council members?  Surely, they have the right to decide for themselves what facts the public ought to know.  So we sent an email to all five, asking, “Are any of you willing to disclose whom you selected for the community panel?”

“No problem,” Councilman Tony Daysog answered, almost immediately.  “I don’t see any problem with it,” Vice Mayor Frank Matarrese likewise replied.  So both Mr. Daysog and Mr. Matarrese told us whom they’d picked.

But Mr. Matarrese added a caveat – “am checking with City Attorney to see her response” – and the other shoe dropped when we heard from Mayor Spencer.  “I would have been happy to make the selections in public,” she wrote.  “However, after checking with the City Attorney, I’m being advised not to provide the names of my choices at this time as that occurred as part of the closed session.”

(Neither Councilwoman Marilyn Ezzy Ashcraft nor Councilman Jim Oddie responded to our invitation.  It may be that Ms. Kern got to them, too.  Or maybe they just don’t like us anymore).

We don’t know why Ms. Kern presumes that her job is to issue gag orders, and we’re sure she wouldn’t tell us if we asked, since, in her view, “the City Attorney provides legal advice to the City of Alameda, not the public at large.”  But she apparently believes that the Brown Act prohibits Council members from reporting anything that happened during a closed session beyond the bare minimum (i.e., that a closed-session meeting was held at which the city manager job was discussed).

In fact, the Brown Act does no such thing.  Rather, the statute only prohibits officials like Council members from disclosing “confidential information that has been acquired by being present in a closed session . . .  to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information.”  (Italics added.)  No violation occurs, the statute emphasizes, if the official reveals information that isn’t in fact confidential.

We would be the first to agree that there may be valid reasons for maintaining secrecy about certain discussions occurring in closed session.  For example, we wouldn’t want a Councilwoman to divulge to the chief union negotiator the legal advice given in a closed session about an employment contract then under consideration.  But we don’t think the Legislature intended to force Council members to button their lips about everything that takes place during a closed session.  How could the City be hurt by letting the public know which Council member picked which resident to vet the candidates for the city manager job?

But our main point today is not to cite yet another dubious legal position taken by Ms. Kern.  There is a more important issue to raise:  Why were all of Council’s actions leading up to Ms. Keimach’s appointment taken in closed session in the first place?

This isn’t how it happened the last time around.

After the newly elected Council voted, 3-to-2, in December 2010 to dismiss Ann Marie Gallant as Interim City Manager, Mayor Gilmore and Vice Mayor Rob Bonta immediately took charge of the effort to find a permanent replacement.  But the public was kept in the loop all the way along.

In January 2011, staff prepared and published a report outlining the selection process.  Council discussed the report at an open session at which each Council member described the qualities he or she was seeking in a city manager.  (The minutes make for interesting reading.  We weren’t shocked that one Council member averred that “experience with bargaining and labor groups is important.”  We do confess a bit of surprise that this statement came not from any member of the recently elected IAFF Local 689 slate – but from former Mayor Beverly Johnson).

At that meeting, Council voted, publicly and unanimously, to direct staff to prepare a recruitment brochure and to authorize Ms. Gilmore and Mr. Bonta to review applications and select candidates for interviews by the entire Council.

A month later, staff prepared and published an update.  Ms. Gilmore and Mr. Bonta had picked six candidates, and the list would be narrowed to two or three finalists after the full Council got a crack at them.

The staff report went on to recommend the next steps in the process:  set up a panel of “community stakeholders” consisting of five persons, one appointed by each Council member, to interview the finalists and make recommendations; establish a similar panel of City department heads, and hold a reception at which the public would be invited to meet with the finalists.

Again, Council discussed the report at length in open session.  The Council members jettisoned the “reception” idea, but, at the suggestion of Councilwoman Tam – who else? – they added a third interview panel composed of representatives of the City’s public employee unions.

The Council members also publicly discussed the qualifications for membership on the “community stakeholder” panel.  Mayor Gilmore stated that the panel should include representatives from the major civic organizations.  Councilman Doug DeHaan suggested that each Council member also should get one “at-large” pick.  Council, publicly and unanimously, agreed to do both.

Within a few days, the Mayor and Vice Mayor selected the “organizational” representatives (from the Board of Education, the Alameda Hospital Board, the College of Alameda, the Alameda Point Collaborative, and the Alameda Chamber of Commerce).  Staff then prepared and published another report identifying these people, and a special meeting was scheduled for the Council members to announce in open session their picks for the “at-large” members.

At that meeting, Ms. Gilmore went around the dais and each Council member publicly made his or her appointment.  Ms. Gilmore herself even elaborated on the reasons for her choice.

Council then voted, publicly and unanimously, to accept the panel.  (We can’t help but note that Blogging Bayport Alameda later described the group as “very strong,” adding, “I was actually a little surprised by the choice made by Doug deHaan.”)

The three panels then interviewed the finalists and made their recommendations – this time, in a private meeting – to Council.  The elected officials tapped Mr. Russo as the “lead candidate,” and, after a background and reference check, offered him the job.

Contrast the foregoing with how the process worked this time.

There was no open session at which Council members discussed publicly the qualities they were looking for in a city manager.  There was no open session at which Council members discussed publicly whether to set up interview panels and, if so, what organizations should get a seat at the table.  There was no open session at which Council members stated publicly whom they had selected for the “community stakeholder” panel or why.

Instead, the only open sessions Council held during the entire process involved the hiring of a search firm and the review of a recruitment brochure.  One or more Council members may have attended a “town hall” meeting hosted by the search firm on June 24, but no video was posted, so we don’t know.  In any event, it wasn’t billed as an “official” Council meeting.

After the brochure was approved on July 21, this is all the public was told about the progress of the selection process:

  • September 22 closed session: “No action was taken.”
  • October 5 closed session: “Direction was given to staff.”
  • November 9 closed session: “The City Council conducted interviews, gave direction to staff, and gave direction to have panels conduct interviews.”
  • December 4 closed session: “Resume tomorrow Sat. Dec. 5 2015 @ 11 a.m. or a date to be determined in the future.”
  • December 15 closed session: Continued to December 18.
  • December 18 closed session: “Direction given to staff regarding conditions of employment.”

Finally, on December 29, Peter Hegarty of the Alameda Journal tweeted out the news that Ms. Keimach had been hired.  Two days later, the City issued a press release confirming Mr. Hegarty’s scoop.

Is this the way the process is supposed to work?  Or, to put it another way, what justifies the shroud of secrecy surrounding the selection of our new city manager?

It isn’t the Brown Act.  The key requirement in the statute is that, “All meetings of the legislative body of a local agency [like a city] shall be open and public,” except as the Act otherwise provides.  One of the exceptions permits a legislative body to hold closed sessions to “consider . . . the . . . appointment . . . of a public employee.”

But the Brown Act does not require that every step in the appointment process take place in closed session.  Instead, the presumption is to the contrary.  As the then head of human resources advised Council back in March, “All decisions regarding the recruitment process are made by the City Council in open session, which will require agenda notice.”

Moreover, according to the California League of Cities, the closed-session device should be used sparingly.  “In general,” the League’s “Guide to the Brown Act” states, “the most common purpose of a closed session is to avoid revealing confidential information that may, in specified circumstances, prejudice the legal or negotiating position of the agency or compromise the privacy interests of employees.  Closed sessions should be conducted keeping those narrow purposes in mind.”

The path followed by Council in 2011 seems to have taken this guidance to heart.  Everything occurred in open session – until it came time to interview, and then to discuss, individual candidates.

The course followed this time was just the opposite.  Everything occurred in closed session – until Council was ready to announce its final decision.

We seriously doubt that Ms. Warmerdam or Mayor Spencer elected to shield as much of the selection process as possible from public view.  In fact, in her response to our email, Ms. Spencer told us that she was not aware how much had occurred in open session last time.  Nor did any of the other four current Council members – none of whom was on Council in 2011 – run on platforms pledging greater secrecy in conducting the public’s business.

Which brings us back, of course, to Ms. Kern.  The City Attorney has made plain her insistence that City officials play by a restrictive rule book of her own devising.  She is, after all, the one who accused the City Treasurer and City Auditor of “exceeding their authority” for speaking out publicly about the public safety union contracts.  And she is the one who proposed a law – ironically, as an amendment to the Sunshine Ordinance – barring a board or commission member from publicly criticizing a decision made by Council.

As long as Council continues to follow Ms. Kern’s advice – and they’re paying her $214,840 plus benefits to provide it – we don’t expect the situation to improve.  But we hope there will come a time when the elected and appointed officials decide they’re not a group of Edith Bunkers who can be told to go stifle themselves.

To her credit, Ms. Spencer told us that she intends to ask her colleagues to authorize release of the information we requested about selection of the community panel.  In the meantime, we can only give you the names of the panelists in the order Ms. Kern gave them to us, and, thanks to Messrs. Daysog and Matarrese, tell you who appointed four of them:

Dan Tuazon (appointed by Mr. Daysog)

Rueben Tilos (appointed by Mr. Daysog)

Alison Greene

Rev. Michael Yoshii

Debra Turnage (appointed by Mr. Matarrese)

Jesus Vargas (appointed by Mr. Matarrese)

Phong La

Dania Alvarez

Liza Gabato Morse

Gerald Bryant

Mark Sorenson

Doug Biggs

Gia Schneider

You might recognize a few of these names.  (And the next time you see Doug Biggs, congratulate him on being the only person to serve on both of the most recent community panels chosen to interview city manager candidates).  As to the nine people not identified by Mr. Daysog or Mr. Matarrese, we can only say:  We don’t know who selected you or why.  For many of you, we’ve never read a letter you’ve written to the Sun or seen you speak at a Council meeting.  But thank you – and the rest of the group – for your service anyway.


Russo selection process:  2011-01-04 staff report re CM recruitment process2011-01-04 CC minutes2011-02-15 staff report re CM recruitment2011-02-15 CC minutes2011-03-01 CC minutes

Keimach selection process: 2015-03-17 staff report re CM recruitment2015-05-12 staff report re CM recruitment2015-07-21 staff report re recruitment2015-09-22 CC closed session minutes2015-10-05 CC closed session minutes2015-11-09 CC closed session minutes2015-12-04 CC closed session minutes2015-12-15 CC closed session minutes

League of Cities, Guide to the Brown Act: League of Cities, Brown Act

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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4 Responses to Closed sessions, closed mind

  1. rmhausman says:

    Great work once again, Robert!

  2. David says:

    Is now the time to start the game of guessing which councilmember nominated who? Based on known political and other affiliations?

    • AN says:

      Seems more up the alley of Action Alameda News. Reading it always reminds me of the saying, “Great minds discuss ideas; average minds discuss events; small minds discuss people.”

  3. John K says:

    In contrast to the City Clerk, I’ve found the City Attorney to be extremely difficult and unaccommodating with regard to public record requests. When a request is channeled to the City Attorney’s office, It’s as though one has stepped into the realm of high-stakes civil litigation where every delay and avoidance tactic is used to delay or withhold public documents and where timelines are exploited for as long as allowed by the Brown Act. The Brown Act says requests are to be completed “promptly” but that’s hardly ever the case.

    For example, I requested the Rent Study by Bea Urban Economics in a records request. I got a reply from a city staffer saying that they were making ‘edits’ to the document and I was asked to wait a couple of days when the study would be posted online. Well, naturally, I requested the unedited version. After waiting the maximum time allowed, the City Attorney replied claiming “both the deliberative process privilege (Government Code Section 6255) and the preliminary draft (Government Code Section 6254(a)) exemptions to disclosure under the California Public Records Act”. Mind you, we are talking about a housing study here, not public safety, contract negotiations, personnel or any other sensitive or confidential issue.

    In a separate request for the same document, the City Attorney claimed the city no longer had the original version. The City Attorney never replied to the suggestion they simply request a replacement electronic version of the original Rent Study from Bea – a transaction that could easily take place in 10 minutes. They are awful.

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