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.
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 announcement; 2018-04-03 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)
Keimach employment contract: Keimach Contract