The strategy for the defense

Attack the accuser.

That’s a standard strategy employed by criminal defense lawyers worried about the weakness of their case.  And it appears to be part of the game plan devised by Alameda firefighters’ union president Jeff DelBono to protect the union’s captive Council members, Malia Vella and Jim Oddie, from the risk of being removed from office for violating the City Charter.

Here’s the narrative:  The two Council members didn’t illegally attempt, at the behest of their union masters, to interfere in the selection by City Manager Jill Keimach of a new fire chief by pressuring her to give the job to former IAFF Local 689 president Domenick Weaver.  That was just a lie fed by Ms. Keimach to labor-hating “opinion writers” in a desperate effort to forestall her imminent, and eminently deserved, termination for incompetence.

Capt. DelBono began pushing this tale, first anonymously and then on the record, in articles written by union apologist Steven Tavares in the East Bay Citizen and later in Alameda Magazine.  But the culmination was the speech given by Capt. DelBono’s romantic partner, one-time teachers’ union president Gray Harris, before Council last Tuesday.

“So it’s clear to me,” Ms. Harris said, looking directly at Ms. Keimach, “that you probably thought you were going to get fired and therefore you’re deflecting all of this onto the Council so that they won’t do your evaluation.  They haven’t done anything wrong and I don’t think they should delay anything because of false accusations.”

During her speech, Ms. Harris ticked off a list of actions that, she said, constituted termination-worthy conduct by Ms. Keimach.  Want to know what the public record shows about the merits of those charges?  Read on.

We’ll start with the lowest hanging fruit:  Ms. Harris’s claim that Ms. Keimach “purposefully split the vote” on the two rent control initiatives on last November’s ballot by “putting L1 [the rent stabilization ordinance passed by Council] on the ballot to suit what I believe are your own purposes.”

We don’t have a clue what nefarious personal goal Ms. Harris believed Ms. Keimach was pursuing.  But we do know this:  Ms. Keimach didn’t put Measure L1 on the ballot, nor did she or any other City staff member have the authority to do so even if she wanted to.  That is the prerogative of the City Council – which it exercised by voting unanimously to submit the ballot measure for confirming the ordinance to the voters.

It is somewhat disconcerting that a former Alameda public school teacher and current Alameda Unified School District trustee wouldn’t check out these basic facts about how local government works, but maybe Ms. Harris’s subject wasn’t civics.  In any event, if Ms. Harris wants to blame someone for the passage of Measure L1, her wrath might be better targeted at the Council members who wrote and signed the argument in favor of the ballot measure:  Marilyn Ezzy Ashcraft and . . . Jim Oddie.

Next on the list is Ms. Harris’s repetition of Mr. Tavares’s claim that Ms. Keimach bungled the City’s response to the discovery of contaminated water at Alameda Point in early September.  “Discontent” with the City Manager “may have surrounded the contaminated water scare,” Mr. Tavares wrote on September 19, describing an “emergency” that “left businesses and a number of families without water to drink or bathe for about five days.”  During this “crisis,” Ms. Harris told the public last Tuesday, Ms. Keimach was “nowhere to be found.”

It just ain’t so.

According to the timeline prepared by Alameda Point Chief Operating Officer Jennifer Ott and presented to Council on October 3, the first complaint about the taste and appearance of the drinking water at the Point occurred on Friday, September 8.  The East Bay Municipal Water District tested the water that day, and again on Monday, September 11, and found it was clear.  But late in the afternoon of Tuesday, September 12, further testing showed the presence of non-potable water in the system.

City staff reacted immediately.  They issued a “Do Not Drink/Do Not Use” advisory to all Alameda Point residences and businesses and notified the City’s property management company and the Alameda Point Collaborative, which spread the warning door-to-door.  That evening, the City provided free bottled water at two locations and mobilized Community Emergency Response Team volunteers to distribute about 20,000 bottles of water throughout the former base.  The next day, 10 portable showers were made available for affected residents.

By late Tuesday night, the irrigation well that was the source of the non-potable water was shut down, and EBMUD flushed the water lines.  At the end of the day on Wednesday, September 13, the State Water Resources Control Board lifted the advisory to avoid bodily contact with the water, and, after comprehensive tests came back negative on Friday, September 15, the Board removed the remaining do-not-drink advisory.

At the October 3 Council meeting, representatives from the state and local agencies praised the actions taken by the City.  But, more tellingly, so did Doug Biggs, APC’s executive director, who is known for his tireless commitment to the residents served by his organization.  “The response was timely, the response was thorough, the response was appropriate,” Mr. Biggs told Council and the public.  “None of our residents was denied any water at any point during the entire period.”

So how can the anti-Keimach crew find fault with her for what, by all accounts, was an exemplary response?  Well, as it turns out, the City Manager wasn’t physically present in Alameda during the entire week of September 11; from Wednesday through Friday, she, along with Councilwoman Ashcraft, was attending a League of California Cities meeting in Sacramento.  It’s hard to imagine that Ms. Keimach went incommunicado during the League meeting – and, in fact, she didn’t.

“The City Manager participated in conference calls and was in direct communication with me throughout the incident,” Ms. Ott, who was on the front lines with Interim Public Works Director Liam Garland, told us.  (She added, “I was also in direct and regular communication with the Acting City Manager, the Police Chief, Paul Rolleri.”)  Likewise, after reiterating his previous praise for the City’s response, Mr. Biggs confirmed to us that “the absence of the City Manager, who I understand was at an out-of-town meeting, was not a deterrent or caused a delay in any way.”

In her speech, Ms. Harris also claimed that Ms. Keimach had “horribly mismanaged” the process of hiring a new fire chief.  This, too, echoed a charge made by Mr. Tavares.  (Indeed, it is the focus of his Alameda Magazine piece in which Capt. DelBono – and his predecessor as IAFF Local 689 president, Capt. Weaver – are heavily cited).

So let’s examine the process.  After learning of Fire Chief Doug Long’s intent to retire, Ms. Keimach retained an executive recruiting firm, Teri Black & Company, LLC, to lead the search for a new chief.  The firm put together a brochure – there’s a link to it below – and marketed the opening through social media, personal contacts, and other means.

With input from Assistant City Manager Liz Warmerdam, Human Resources Director Nancy Bronstein, and the recruiting firm, Ms. Keimach then appointed two panels to interview candidates for the fire chief’s job.  In selecting the panel members, Ms. Bronstein told us, the City Manager “looked for evaluators who had an understanding of the City, the community, the position, and could bring different perspectives to the hiring process.”  Citing privacy issues, Ms. Bronstein declined to identify the panel members by name, but she said one panel was composed of an active fire chief, a retired fire chief, a City employee from the fire department, and a member of the City’s “executive team”; it was “proctored” by a retired fire chief who works for Teri Black.  The other panel consisted of three members of the City’s executive team and two community members; it was proctored by a retired assistant city manager employed by the recruiting firm.

Of 42 applicants, seven candidates were chosen to be interviewed by the two panels.  According to Ms. Bronstein, each panel had a set of questions, and all seven candidates were asked the same questions and evaluated on their responses.  Ms. Keimach then selected four applicants for final interviews.  The two top-ranked candidates of the two panels were “obvious choices,” Ms. Keimach later wrote in an email to panelists, but she decided to “add the two internal candidates that placed the highest in each panel.”   Of the two “external” and two “internal” finalists, she stated, “I ended up agreeing with both panels and decided immediately” that Salinas Fire Chief Edmond Rodriguez “was the best candidate for the position.”

We don’t claim to be experts in employee recruitment and hiring, but this certainly seems like an even-handed method for finding a new fire chief.  But don’t take our word for it.  Before Ms. Keimach announced her selection, one of the ultimately unsuccessful candidates sent her an email thanking her for allowing him to be considered.  “As a fire professional with over 20 years in the fire service, and [someone] who has taken other several other promotional exams,” he wrote, “I felt the process was fair and impartial.”  Later, he added, along the same lines, “I’ve taken several other chief officer promotional exams for the City of Alameda, and I felt that this process was handled as equally professional[ly] if not more professional[ly] than the others.”

The writer?  Alameda Fire Captain (and Alameda Health System director) Michael Williams.

Capt. Williams ought to be commended for his class and candor – but we doubt he will be (at least at 2027 Clement Avenue).  And we don’t think we’ll see his name on the Vella/Oddie defense team’s witness list.

The final example of Ms. Keimach’s purported incompetence cited by Ms. Harris was one not previously mentioned by Mr. Tavares:  the “huge delay in the FAAS decisions,” presumably referring to the negotiations over the renewal of the lease between the City and the Friends of the Alameda Shelter.

We won’t spend a lot of time on this one, since it’s not immediately clear what action by Ms. Keimach Ms. Harris was criticizing.  We recall that Mayor Trish Spencer publicly complained about the length of time the talks were taking, and that there were some FAAS supporters who suspected staff was dragging its feet in order to get a better deal for the City.  But if those suspicions are correct – and we are in no position to know; neither is Ms. Harris – Ms. Keimach is guilty of being a sharp bargainer – not an inept manager.

Thus far the case for Ms. Keimach’s “incompetence.”  If we were a judge, we’d throw it out of court.

Speaking of which:  Ms. Vella and Mr. Oddie, of course, are entitled to the presumption of innocence, and, if a grand-jury accusation is issued and the case goes to trial, their lawyer(s) will have every right to attempt to impeach Ms. Keimach’s credibility.  But in the meantime let’s hope that the campaign to besmirch the City Manager’s professional reputation ends with Ms. Harris’s speech.  Unfortunately, having seen Capt. DelBono and his online allies in action, we’re prepared to be disappointed.

Gilmore, Weaver, and Raymond Zack

The Merry-Go-Round has been reading elsewhere about the written communications sent to City Manager Jill Keimach urging her to appoint former Alameda firefighters’ union president Domenick Weaver as Alameda’s next fire chief.  But only one writer – Daniel Borenstein of the East Bay Times – actually has quoted from the letters; others prefer just to characterize the contents to fit their predetermined story line.

Under these circumstances, we thought our readers might want to read the letters themselves so they can draw their own conclusions.  So we asked City Clerk Lara Weisiger to send us copies; she obliged, and you’ll find the link at the bottom of the column.  (Other related documents also are included).

The package contains 16 letters, of which five are signed by current or former office holders, five by unions or labor organizations, and four by active or retired Alameda firefighters.  For those who don’t want to take the time to go through all of them, we want to flag one particular letter – the one sent by former Mayor Marie Gilmore.

After giving Capt. Weaver her “enthusiastic recommendation,” Ms. Gilmore offered a few examples of why she supported him.  Here’s the one that caught our eye:

Captain Weaver also impressed me in 2011 with his level headed command presence and instinctive knowledge of department needs when Alameda suffered a tragic event that garnered widespread media coverage.  On Memorial Day weekend that year, Captain Weaver called me at home to inform me of the Raymond Zack drowning.  Mr. Zack committed suicide in the waters off Crown Beach and the firefighters were forbidden by department rules from entering the water to save him.  As noted above, City Hall had eliminated the water rescue program and had not yet reinstated it.  Captain Weaver told me that the firefighters who had responded to the call were upset by their inability to enter the water and were traumatized by watching a man drown.  He asked me to come to Fire Station 1 and talk to the crew.  Although I went to the firehouse, I did not realize the impact my presence had on the crew and the department.  Several firefighters told me later, “It meant a lot having the Mayor come to the station right after the incident and to know that you and the City had our backs.”  I would not have been there but for that telephone call from Captain Weaver.

This is, to say the least, a novel perspective on the Zack incident, where, pursuant to their superiors’ orders, the firefighters remained on shore as the mentally disturbed man was going under.  What the anecdote says about Capt. Weaver – or Ms. Gilmore – is not for us to judge.

Sources:

Recruitment brochure: Alameda FC recruitment brochure

Correspondence re fire chief selection: FC correspondence

Alameda Point water contamination timeline: 2017-10-05 Ex. 2 to staff report – Frequently Asked Questions

 

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
This entry was posted in Alameda Point, City Hall, Firefighters and tagged , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

15 Responses to The strategy for the defense

  1. Joanne says:

    Why are the responses dated in the future

  2. carol says:

    Thanks for the excellent post. I too was flabbergasted to witness an AUSD Trustee embarrass herself at the speakers podium as Harris did. Thanks for posting the letters packet. After reading several testimonials as to Weaver’s “excellent” verbal and written communication skills, I arrived at Weaver’s own withdrawal-from-consideration letter to Keimach. I definitely have a different definition for the word “excellent”. I think a copy should be sent to everyone who wrote in support of him..

  3. MP says:

    True that – contrary to Ms. Harris’s allegation – it was the City Council that voted to put L1 on the ballot, and not the decision of City Manager Keimach (and also that the City Manager would have had not authority to do so). It was not a unanimous vote. Councilmembers Oddie and Ashcraft – at the strong urging of the ARC – voted not to place Measure L1 on the ballot (where it was ultimately approved by voters by a 55-45 margin).

    • My source for the statement about a unanimous vote was the following sentence in the August 8, 2016 staff report: “On July 19, 2016, the City Council voted unanimously to place the City measure on the November 2016 ballot, asking the voters to confirm Ordinance 3148 with two provisions: 1) that the City Council retain the authority and flexibility to amend or repeal the Ordinance, rather than require a vote of the people to make such changes; and 2) that the Ordinance would prevail if it received the highest number of votes at the November 8, 2016 election, regardless of the outcome of the other initiatives.”

      • MP says:

        True, there were two Councilmembers, Ashcraft and Oddie, who were for placing L1 on the ballot before they were against it. Come August 8, those two voted against the resolution placing L1 on the ballot, but then immediately wrested drafting of the ballot arguments in favor of L1 away from Mayor Spencer with various arguments – and instead Oddie and Ashcraft helped write and signed the official voter pamphlet arguments in support of L1.

  4. Steve Gerstle says:

    If Jill Keimach’s main concern was keeping her job, she would have simply rubber stamped the union’s choice and been done with it. She would have had a good sense of what was in store for her if she decided otherwise. It seems that she decided that she needed to do the right thing regardless of the consequences. I am sure that she has made some mistakes along the way — all of us have — but her decision shows character and a willingness to put herself at risk for the benefit of the community.

  5. nyborn2013 says:

    Politicians are a strange breed indeed. The City Manager does an excellent job while serving our city, yet others would want her gone. She is good for Alameda, yet some do not care about what is good for Alameda. They are selfish and greedy, thus care little about our well being. I am a Democrat, but it has been an embarrassment how local and regional Dems circle their wagons and expect everyone to follow suit. They are no longer speaking for the people. They are speaking for themselves. Very sad. And Gray Harris? Please. Is there any reason to listen to her on any topic? We must raise the bar when it comes to elected officials in Alameda. We can’t stand by and allow this level of ignorance to exist much longer. Good luck to the City Manager. I do hope that she survives this dilemma.

  6. John Jay says:

    On the merits, the union’s ‘blame the victim’ strategy obviously fails the smell test. Unless they find a dead, decapitated, decomposed body in Ms. Keimach’s desk drawer, nobody is going to believe that she is the culprit here.

    It’s also hard to imagine either Ms. Vella or Mr. Oddie walking away from this unscathed; but, Ms. Vella might have a slim chance of redemption if she turns State’s evidence against Mr. Oddie and blames him for the entire ill-conceived caper; he’s clearly the less sympathetic figure and in all likelihood, more culpable;

    Regardless, what I find most striking about the union’s strategy is that Firefighters Union President Mr. Del Bono actually allowed himself to be quoted, in print, for attribution, saying of the City Manager: “I told her, ‘You’re just lying here,’ ” said Del Bono. “She’s delusional. There’s not a lot of trust there. It really makes it hard to work with somebody that nobody trusts.”

    I can’t ever recall someone in a similar position of authority and responsibility speaking in such overtly hostile and aggressive terms under similar circumstances.

    One can only imagine how Mr. Del Bono conducts himself behind closed doors. I bet Mr. Oddie knows all too well.

  7. Mike says:

    Hey Here’s some real news I was at the wedding and she’s his wife not “romantic partner.” Stop being a jerk.
    Very Truly Yours,
    Mike Heneberry
    Proud Union Goon

  8. David says:

    #UnionThugs

  9. Pingback: Fed up – and forced out? | Alameda Merry-Go-Round

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