Will they rid themselves of this meddlesome manager?

Thus far, the Merry-Go-Round has assiduously refrained from speculating about the ongoing developments in the investigation into the alleged threats by Council members Jim Oddie and Malia Vella to get City Manager Jill Keimach fired unless she selected the former president of the Alameda firefighters’ union as the City’s new fire chief.

But, now, the agenda published for a closed-session meeting this Monday suggests that the two Council members have put together a majority that will enable them to get rid of Ms. Keimach, who ended up passing over the ex-union honcho in favor of the candidate recommended by two selection panels.  So the time has come for us to raise two issues that have been bothering us for a while.

First, why are Mr. Oddie and Ms. Vella allowed to vote on matters stemming from Ms. Keimach’s charge that the two of them violated the City Charter by interfering with her selection of the fire chief?

Second, if a Council majority in fact votes to can Ms. Keimach, how will the City defend the lawsuit that will inevitably follow under the state whistleblower law?

The scandal came to light when the East Bay Times published an article reporting on a letter Ms. Keimach had delivered to Council on October 2 in which she described “intense and unrelenting” pressure placed on her by “elected and appointed officials” – whom she did not name but whom the article identified as including Council members Oddie and Vella – to “put aside the best interests of the City and select the Fire Chief that has been handpicked by the local IAFF union.”  Corroborating Ms. Keimach’s allegations, the article reported that, in a conversation with Police Chief Paul Rolleri, Mr. Oddie had threatened Ms. Keimach’s job.  “He said, ‘well she better do the right thing,’” Rolleri was quoted as recalling. “‘There are already two council members who are ready to fire her if she doesn’t.’”

If the allegations are true, the Council members who turned the screws on Ms. Keimach violated section 7.3 of the Alameda City Charter, which gives the city manager sole authority to appoint subordinate officers and provides that “An attempt by a Councilmember to influence the City Manager in the making of any appointment or the purchase of any materials or supplies shall subject such Councilmember to removal from office for malfeasance.”

Since the East Bay Times article was published, Council has held four closed-session meetings – from which the public was barred – at which it appears the allegations about  Mr. Oddie’s and Ms. Vella’s interference with Ms. Keimach’s selection of the fire chief were discussed.  (For this supposition about the topic under discussion we’re relying on blog posts by Steve Tavares, who often gives local Democratic party and labor “sources” an outlet for disseminating “inside information” anonymously.  The City itself has not disclosed what was said during the closed-session meetings.)

Mr. Oddie and Ms. Vella attended all four closed-session meetings and voted at each of the three meetings at which Council took action.  On October 17, they joined a unanimous vote to “cause an independent investigation of allegations arising out of” Ms. Keimach’s October 2 letter.  On March 9, they concurred in a similarly unanimous vote to place Ms. Keimach on administrative leave pending Council’s “assessment” of “confidential advice regarding potential litigation” contained in the investigator’s report.  And on April 3, they voted with Mayor Trish Spencer to “direct[] staff to schedule another two closed sessions” on the matter.  (Councilwoman Marilyn Ezzy Ashcraft and Councilman Frank Matarrese dissented.)

The agenda for the closed-session meeting scheduled for Monday apparently implements that directive – and then some.  In addition to a “conference with legal counsel” about “anticipated litigation,” it includes an item referring to “PUBLIC EMPLOYEE DISMISSAL/RELEASE” and identifying Ms. Keimach as the employee.

We confess that we were somewhat taken aback when we first learned that Mr. Oddie and Ms. Vella had participated in these four closed-session meetings that their own alleged misconduct had precipitated.  It was as if we were watching the Bill Cosby trial and, after opening statements, the defendant got up out of his chair and took a seat in the jury box.

As far as we know, however, there is nothing in California law that prohibits the two Council members from sitting in judgment on their accuser.  The state Fair Political Practices Act disqualifies a legislative official from taking part in a governmental decision only “if it is foreseeable that the decision will have a financial impact on his or her personal finances or other financial interests.”  (Emphasis added.)  Since it is hard to see how a decision to fire Ms. Keimach would impose any disqualifying financial impact on Mr. Oddie or Ms. Vella, they are not legally barred from voting to dismiss her.

But there is also what Justice Cardozo once called “the punctilio of an honor most sensitive”:  sure, Mr. Oddie and Ms. Vella can get away with orchestrating Ms. Keimach’s dismissal, but do we really want our Council members putting their own (or their backers’) interests – albeit political, not financial – ahead of the public interest?  In this regard, we are reminded once again of the advice given by the Institute for Local Government to elected officials, which is worth quoting at length:

In some situations an agency attorney or the FPPC says that no legal imperative exists to disqualify oneself from a particular matter. If you still have questions about your ability to put your personal situation aside and/or make a fair decision, then it is best to abstain.

What if you believe you can make a fair and public-minded decision, but others are questioning whether that is indeed so? As with many ethical dilemmas, this is an example of conflicting and important values.

One value is fulfilling your responsibility as an office-holder to make decisions – which, of course, is what your constituents elected you to do. Related to this value is the benefit of having as many decision-makers as possible participate in decisions to reflect the full range of community perspectives.

The other value is preserving the public’s trust that the agency’s actions are based on principles of fairness and what best promotes the public’s interests – as opposed to decision-makers’ self-interests or those of their friends and family.

In these instances, one strategy is to put yourself in the public’s shoes. What would you think if you were a member of the public analyzing the situation? If you question the ability to put personal interests and loyalties aside, you may want to abstain.

This kind of assessment causes some officials to adopt the practice of avoiding even the appearance of impropriety with respect to their conduct as public officials. Such a practice places a high value on maintaining and improving the public’s perception of government and those who govern. This value reflects a concern that the loss of public trust in government diminishes the community support necessary to address pressing community challenges.

Adopting this approach may mean not participating in an important decision. Perhaps even more difficult is the possibility that those who do participate in the decision-making process may make what you consider to be the “wrong” decision. The decision may affect the long-term interests of the community, and your constituents may disagree with the decision. In fact, some may feel disappointed and angry if one participant voluntarily steps aside and others make a decision with which they disagree.

Ultimately, the issue rests in the value you place on ethics in public service and how you want to be remembered by the community and your family. If integrity is part of that picture, then braving criticism for voluntarily refraining from participating in an important decision may be well worth it.

We would be surprised if either Mr. Oddie or Ms. Vella would disagree with these principles.  Which makes it even harder for us to understand why they have participated in the closed-session meetings held thus far.  And, if either of them intends to vote Monday to end Ms. Keimach’s employment, we think they owe the public an explanation of their reasons for deciding not to abstain instead.  At least for Mr. Oddie, the question is not simply how he wants to be “remembered by the community”; it’s how he wants to be judged by the electorate this November.

And now for the litigation issue.

Under the state whistleblower law, an employer may not “retaliate” against an employee for disclosing information to a “person with authority over the employee” if the employee “has reasonable cause to believe” that the information discloses “a violation of or noncompliance with a local, state, or federal rule or regulation.”  An employee who is fired for having made such a protected disclosure may sue for violation of the statute.  If successful, she can get compensatory damages for past and future economic loss, and past and future pain and suffering – and, in an appropriate case, punitive damages.

Based on her October 2 letter, Ms. Keimach quite easily could state a prima facie case under the whistleblower statute if Mr. Oddie and Ms. Vella get the additional vote needed to fire her.  Her complaint would allege that she disclosed to the “person(s) with authority over her” – i.e., the members of City Council – information that she “reasonably believed” constituted a violation of local law – i.e., section 7.3 of the City Charter – and that such disclosure was a “contributing factor” in the decision to terminate her employment.  If Ms. Keimach won, her damages would consist, at a minimum, of the salary and benefits remaining under her four-year contract with the City (which provides for a starting salary of $245,000 per year with 2.5% annual increases, plus $15,000 per year in deferred compensation).

We do not know whether the City would contest Ms. Keimach’s factual allegations about the actions taken by the two Council members to compel her to let the firefighters’ union pick the next fire chief.  (Given Chief Rolleri’s testimony, it would seem hard for Mr. Oddie, for one, to deny that he threatened Ms. Keimach with termination unless she played ball.)  But the statute gives an employer like the City an affirmative defense:  it can defeat the whistleblower claim by presenting “clear and convincing evidence” that it had “legitimate, independent reasons” for firing the employee even if she had not engaged in statutorily protected conduct.  (“Clear and convincing evidence” is a burden of proof higher than the one usually applied in civil cases but lower than the “beyond a reasonable doubt” standard applicable in criminal proceedings.)

If Ms. Keimach were fired and filed suit, this is where we’d suspect the battle would be fought.  Already, we’ve seen efforts by public-employee-union apparatchiks to disparage Ms. Keimach’s job performance, particularly the invective spewed by current School Board member and former teachers’ union president Gray Harris in a speech before Council on October 17, and the innuendo fed by Ms. Harris’s husband, Alameda firefighters’ union president Jeff DelBono, to Mr. Tavares for publication in his blog.

As we wrote at the time, none of the mud slung by Ms. Harris or Captain DelBono has any objective merit.  And if the City were to rely on chimera like this for its defense, it would need to explain why every City department head – including interim fire chief Ricci Zombeck – signed a letter, read by Chief Rolleri at the November 8 Council meeting, expressing support for Ms. Keimach and “respect and faith in her ethics and integrity.”  There is “stability within the city,” the letter affirmed, and “we all, individually and collectively, trust in Jill Keimach’s leadership and are working together to accomplish our city’s priorities.”

But maybe the investigator hired by the City has come up with as-yet-unrevealed facts that the Council majority could cite to justify cashiering Ms. Keimach.  Suppose, for example, that it turned out that Ms. Keimach had taped her calls or meetings with Mr. Oddie, Ms. Vella, or others without their consent.  This would be perfectly legal under federal law, which permits a person to record her own conversations, but California is one of 12 states with an “all-party consent” statute, and we could imagine a defense lawyer arguing that the purported violation of state law furnishes a “legitimate, independent” reason for firing the City Manager.  But where a key issue is whether threats were made, and, if so, what they consisted of, we wouldn’t relish trying to convince a jury that obtaining recorded evidence of intimidation is a fireable offense.

One final point.  None of the politicians who will decide Ms. Keimach’s fate was sitting on the dais the last time our City Council voted to sack a city manager.  But the unions – and their leaders – who engineered that event are still around.  And they’re probably still crowing about the outcome:  not only did Ann Marie Gallant lose her job, she also lost her subsequent lawsuit against the City and was ordered to pay the City’s attorneys’ fees.

But the past is not necessarily prologue:  Jill Keimach is not Ann Marie Gallant, and a whistleblower claim implicates public-policy concerns weightier than a simple breach-of-contract claim.  Nor is success in driving one City official out of office for refusing to kowtow to the unions a guarantee that the same feat can be repeated all over again.  At least we hope not.  Otherwise, the next city manager ought just to become a member of the firefighters’ union on the day she’s hired.  She’ll spare herself a lot of aggravation that way.

Sources:

Keimach October 2, 2017 letter to Council:2017-10-02 Keimach letter to Council re fire chief

Closed-session meeting announcements: 2017-10-17 CC closed session announcement; 2018-01-30 CC closed session announcement; 2018-03-09 CC closed session announcement2018-04-03 CC closed session announcement

April 16, 2018 closed-session agenda: 2018-04-16 CC closed session agenda

Institute for Local Government, “Deciding When to Step Aside from the Decision-Making Process: Abstentions and Disqualifications”: CLC article re abstention (Part 1)CLC article re abstention (Part 2)

State whistleblower law: Cal Lab Code _ 1102.5Cal Lab Code _ 1102.6

Keimach employment contract: Keimach Contract

 

About Robert Sullwold

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

21 Responses to Will they rid themselves of this meddlesome manager?

  1. carol says:

    54957(b) (2) As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void.

    Would it be of any value to Keimach to elect to have this closed session converted to an open one, as appears to be her right under the statute?

    • Juelle Ann Boyer says:

      It certainly would be interesting but could become very divisive. By forcing the discussion to occur in public, would the investigator’s report be reviewed? Without facts, we would be treated to only opposing views.

  2. RD says:

    If the City Manager is fired, there is a solid block of us who will do what we can to keep Oddie from winning his seat again on Council and unless Mayor Spencer disagrees with the firing, she may also have trouble beating Ashcraft. We voted council members in to office to act in our favor, not to patronize Rob Bonta and the unions. They will test the will of the people if they drive an excellent city servant out of office!! If Frank the only honest council member these days??

  3. Juelle Ann Boyer says:

    “For this supposition about the topic under discussion we’re relying on blog posts by Steve Tavares, who often gives local Democratic party and labor “sources” an outlet for disseminating “inside information” anonymously. The City itself has not disclosed what was said during the closed-session meetings.)” I’m troubled that this end run of the Brown Act must be occurring. And if true, who that person may be that is revealing this information. That also assumes that Mr Tavares doesn’t read tea leaves for his sources.

  4. Eric Strimling says:

    What of the illegal wire tapping charges? Keimach is accused of secretly making recordings of her conversations with the two city councilembers, which she then turned over to the independent investigator. According to the article in the East Bay Times the investigating lawyer found nothing illegal in the conversations, but.the recordings are themselves illegal.

    So, Ms Keimach hung herself. She put out unsubstantiated charges, made illegal recordings, and now the city has plenty of grounds to fire her.

    It’s too bad. I liked her. She helped ARC at one point.

    https://m.eastbayexpress.com/SevenDays/archives/2018/04/12/alameda-city-manager-allegedly-wiretapped-councilmembers

  5. Heinrich Albert says:

    We should all write the city council clerk@alamedaca.gov and insist that council members Oddie & Vella recuse themselves from any vote concerning termination or performance evaluation for our city manager.

  6. Linda S says:

    That’s a good idea nothing ventured nothing gained . Although I must admit I am losing my faith in the system I do know that many Alameda citizens requested the Grand Jury
    Investigate the city managers allegations . To The best of my knowledge nothing has been done in that arena .

  7. barbara thomas says:

    Ms. Keimach would most likely be acquitted by any fair jury of any crime. District Attorney O’Malley has the power to grant immunity to Ms. Keimach in order to prosecute a more serious criminal conspiracy, extortion and malfeasance to force an official not to do her job, but to earn them points with the fire union as either payback or in expectation of future endorsements and money from the union. The voters/public are entitled to elected representatives who represent their best interests and not the fire department’s union. That would take an elected District Attorney who was not beholden to the unions for campaign funds. Or as Jesse Unruh used to say, “If you can’t eat their food, drink their booze, screw their women, take their money and then vote against them you’ve got no business being up here.”

    • Eric Strimling says:

      What evidence is there of malfeasence? Do you have evidence that the independent investigator does not? He has listened to the tapes, I assume you have not, and concluded that there is nothing illegal on them.
      So, Ms Thomas, what evidence do have to make, in writing, the charge of “serious criminal conspiracy, extortion and malfeasance”?

  8. Richard Bangert says:

    Since the word “meeting” has been used repeatedly, it sounds like the taping occurred during a face-to-face meeting, not during a phone conversation. Recordings of meetings among government officials sitting together in a room is a gray area of law, according to what I’ve heard. In this particular case, a subordinate was recording the words of her superiors after learning (from the Police Chief, no less) of the threat of being fired. If Keimach can’t record conversations in which she feels intimidated by superiors, what about employees who experience sexual harassment?

  9. MP says:

    You bring up a good point: The state whistleblower law (LC 1102.5) was amended in the past few years to include raising alleged violations of local rules and regulations (presumably including a city charter) as activity protected against retaliation. The case of Deborah Edgerly, former Oakland City Manager, illustrates the significant of that change in the law. She alleged she had been retaliated against for reporting violations of the Oakland city charter, but her case was finally dismissed in 2012 because, at that time, applicable law protected only employees who had reported or threatened to report violations of state or federal law. 211 Cal.App.4th 1191. The recent change in the law – brought about in 2013 with support from public employee unions, the California Employment Lawyers Association, and Assemblyman Rob Bonta — brings 1102.5 into play. Also at play may be a First Amendment retaliation claim. See e.g. Vasquez v. City of Bell Gardens, 938 F.Supp. 1487 [city manager as plaintiff]; Carrollo v Boria, 833 F.3d 1322 [same].

    The several month gap between the time Keimach’s city charter interference claims went public and her more recent suspension may lend itself to the explanation that it was the Council learning of the recording, rather than Keimach’s earlier claims of interference, that led (or is leading) to ending Keimach’s tenure. On the other hand, retaliation is always a dish best served cold. A judge might let a jury decide whether a majority of the Council (especially if it includes those accused of interference) was just biding its time, waiting for a pretext. That’s not the easiest of cases to make, however. One could imagine a jury believing there is good reason, especially in a state where PC 632 is the law, for a city to terminate its chief executive who records confidential communications without consent or knowledge, if it believes that is what happened.

    But let’s not turn it into the crime or moral failing of the century. As you point out, while eavesdropping by third parties on private communications is universally prohibited, prohibitions against a party to a confidential communication making a recording of a conversation in which he or she is a participant exist in only a few states. Moreover, one can question need for giving the highest level of protection against invasion of privacy to a conversation such as the one at issue here between public officials (who may have already begun to develop an adversarial relationship) about the public’s business – not personal, family, medical matters, etc. One can also question the degree of real, actual harm to the victims in this case if in fact there was a violation of Penal Code 632.

    Indeed, one would expect the putative victims here to be leading the charge to have the recording made public. After all, they have repeatedly led us to believe that any recording would contain no evidence of improper interference with the City Manager because, in fact, they did not interfere with the City Manager. Their supporters have also claimed that they have been unfairly accused. Release of the recording would vindicate all of those claims. And, apart from their own interests in having the tape released, they also have a strong interest in ensuring that the public knows how the public’s business was conducted in this matter, even if it was behind closed doors.

    • Juelle Ann Boyer says:

      Your last sentence isthe beat argument for transparency in government.

    • Eric Strimling says:

      It isn’t Oddie and Bella saying that the recordings contain nothing illegal, I have neither heard nor read any comment from them to that effect, but it is the independent investigator who says so.

      Do you believe the investigator is also a part of the conspiracy?

      • MP says:

        No, no conspiracy. To the contrary, I think Councilmembers Oddie and Vella will be asking for the tape to be released. I also know they that believe the Alameda public is fair and that it can be trusted to make fair judgments from what it hear with its own ears.

      • carol says:

        We don’t know what the investigator says, because his 80 page report has not been released to the public yet. So far, I’ve only read “unnamed sources” quoted about the “nothing illegal”.

  10. Steve Gerstle says:

    ” It was as if we were watching the Bill Cosby trial and, after opening statements, the defendant got up out of his chair and took a seat in the jury box.”

    And that is exactly what Malia Vella and Jim Oddie are doing. They seem to lack any sense of propriety and ethics. They simply should not be holding any public office and it it the responsibility of all of us to make sure that they do not. They seem to be judging any act they take as appropriate and justified. They condemn Donald Trump and then mirror his behavior. In a democracy, it is the responsible of the governed to rectify situations like this. If we accept it, then we are just as guilty as they are.

    • JohnP.TrumpisnotmyPresident. says:

      you remind me of judge Roy Bean, ( “the hanging judge”) let’s hang them and then give them a fair trail. I’ll Waite for the ballot box to tell the story. or the courts.

  11. Heinrich Albert says:

    Monday’s City Council mtng (Council Chambers, 3rd flr, City Hall) is scheduled for 5PM. There is an opportunity for public comment at the beginning, before they move to closed session. If you feel Members Oddie & Vella have a conflict of interest voting on the City Manager’s employment, I urge you to attend and speak up.

  12. Steve Gerstle says:

    And all of this stems from who became the Fire Chief?
    http://www.ebcitizen.com/2018/04/alameda-city-attorney-will-ask-city.html
    What is the lesson learned here?

  13. Mike McMahon says:

    Steven Tavares on Twitter at 11pm
    Alameda City Council votes unanimously to release independent investigator’s report on May 2; refer Keimach recording case to Alameda County D.A.; Keimach remains on paid admin leave. #alamtg

  14. Heinrich Albert says:

    See the East Bay Times report below:

    There were over 40 of us there; all but 2 spoke against firing the City Manager AND that Council Members Oddie and Vella should recuse them selves. It’s not clear to me that they did. Last night’s decision seems a reasonable course forward, but in my opinion, Oddie & Vella should not have a voice in this until the allegations against them are resolved.

    https://www.eastbaytimes.com/2018/04/16/city-manager-tells-council-she-doesnt-regret-action-that-could-lead-to-her-firing/

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