The best disinfectant

Want to know what decisions Council made at its lengthy closed-session meeting Monday about the future employment of City Manager Jill Keimach and the prospect of litigation arising from Ms. Keimach’s allegations of illegal interference by Council members Jim Oddie and Malia Vella in her selection of a new fire chief?

Want to know who voted which way on what issues?

Well, good luck.

The Merry-Go-Round obtained the formal written announcement about the closed session and followed up with City Clerk Lara Weisiger and City Attorney Janet Kern.  As a result, we can report two facts:  Council voted, 5-0 (i.e., with Mr. Oddie and Ms. Vella participating) to “release on Wednesday 5/2 the investigative report compiled by Michael Jenkins,” and it voted, again 5-0, to “instruct the City Attorney to refer the audio recordings [presumably, those made by Ms. Keimach of her conversation(s) with Mr. Oddie and Ms. Vella] to the Alameda County District Attorney.”

Beyond that the situation gets murky.

According to the written announcement and our follow-up emails with Ms. Weisiger and Ms. Kern:

  • Council voted, 5-0, to “g[i]ve direction to staff on one item”;
  • With Mr. Oddie and Ms. Vella marked as “absent” – the written announcement states that the two “left the meeting at 10:32 p.m. and returned at 10:43 p.m.” – Council voted, 3-0, “to give direction to staff” on a second item;
  • With Mr. Oddie and Ms. Vella this time participating and voting in favor, Council voted, 3-2, to give “direction to staff” on a third item.  (Mayor Trish Spencer supplied the third affirmative vote).

The first two decisions were listed under the “anticipated litigation” agenda item; the last, under the “public employee performance evaluation; public employee release/dismissal” agenda item.

But what “direction” did Council vote to give to staff in any of these three instances?

And what was the proposed action debated and voted on after Mr. Oddie and Ms. Vella went on their break?

Your guess, as they say, is as good as ours.

But that shouldn’t be the case.

Begin with the basics.  Article 1, section 3 of the state constitution declares: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”

Likewise, the Brown Act sets forth the basic rule:  “All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.”

State law thus makes open meetings the norm.  The Brown Act recognizes exceptional circumstances in which a closed session may be held, but they are just that – exceptions, and, as the League of California Cities has stated, “Courts and the California Attorney General usually broadly construe the Brown Act in favor of greater public access and narrowly construe exemptions to its general rules.”

Moreover, the Act requires that, when a closed session is held, the legislative body “shall publicly report any action taken in closed session and the vote or abstention on that action of every member present.”  For certain decisions, the Act prescribes the minimum information that must be disclosed – e.g., for employment actions, the public report “shall identify the title of the position” – but it does not address what, if any, additional facts should be provided.

The City’s Sunshine Ordinance mirrors the Brown Act, but it goes further in the direction of disclosure in several ways.  Of particular note, the ordinance provides that, “After every closed session, a policy body may in its discretion and in the public interest, disclose to the public any portion of its discussion that is not confidential under federal or state law, the Charter, or non-waivable privilege.”

In practice, the written announcements made after a closed-session Council meeting in Alameda frequently state only, as the April 16 one did, that Council “gave direction” to staff.  In response to our inquiry, Ms. Kern elaborated this way:

The City’s practice has been to report out votes that are taken, even though the substance of the matter cannot be publicly announced due to such things as employee confidentiality requirements or inappropriate disclosure of litigation strategy.  In such instances, the report out typically and accurately is “Direction to Staff”.

To which we say:  Okay, fine.  That kind of reporting may be “typical” and “accurate.”  It may even be sufficient to meet the requirements of state and local law.  But the Brown Act does not prohibit divulging more information than the Act specifically mandates, and the Sunshine Ordinance explicitly authorizes disclosure “in the public interest.”  And there may be cases where good reasons exist for exceeding the minimum set by the statute and exercising the discretion conferred by the ordinance.

This is one of them.

Absent a substantive official report, those who attended the closed session on April 16 will be free to leak to their favorite bloggers or reporters their own version of what decisions Council made.  (Or have their allies leak it for them.)  Even where no leaks occur, partisans on both sides will be able to make up any story that fits their preconceived narrative without fear of being contradicted by the public record.  And in this age of social media, these “alternate facts” can be spread, embroidered, and repeated so extensively that a goodly chunk of the populace – at least those on Twitter or Facebook – may come to believe they’re true.  Even Mark Zuckerberg now appears willing to admit as much.

We’ve already seen this phenomenon in the spate of posts and comments about Ms. Keimach’s recording of her conversation with Mr. Oddie and Ms. Vella:  As far as we know, none of the bloggers or commenters actually has heard the tape, but that hasn’t stopped a slew of them from asserting with certainty what its contents are and whose position it favors.  And speculation quickly devolves into sophistry.  Just yesterday, for example, readers of the Alameda Patch were told that it was the recording made by Ms. Keimach, rather than the alleged illegal interference by Mr. Oddie and Ms. Vella, that was the subject of the investigative report by Mr. Jenkins.

Moreover, both Ms. Keimach and Ms. Vella already have spoken or posted publicly about the allegations of illegal interference, the former to reiterate them, the latter to deny them and to disparage the citizens who came to the podium during the public-comment portion of the April 16 meeting.  (By comparison, Mr. Oddie has kept relatively mum – as, at least recently, has Alameda firefighters’ union president Jeff DelBono.)  Neither of these interested parties would seem to have any legitimate expectation that information about Council decisions relating to the charges will (or should) remain confidential.

In short, veiling the disclosure about the April 16 closed-session meeting in vagueness serves no one’s interest, on either side, and certainly not the public interest.  If we want Alamedans to be able to hold their elected representatives accountable for their actions, those officials ought to reveal the substance of the decisions they make outside the public eye.  And if those decisions consist of “giving direction” to staff, they ought to divulge exactly what they told staff to do.

It’s time to rip away the curtain and let the sun shine in.

Sources:

April 16, 2018 closed session: 2018-04-16 CC closed session agenda2018-04-16 CS Announcement

Brown Act: Open-Public-2016

Sunshine Ordinance: Alameda Municipal Code, Article VIII (Sunshine Ordinance)

About Robert Sullwold

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

32 Responses to The best disinfectant

  1. Bierwith Catherine says:

    THANK YOU!

  2. Steve Gerstle says:

    Forces are trying to shift the story from wrongdoing by Vella and Oddie to wrongdoing by Keimach. In order to do that, Keimach needs to be painted as a dishonest and unstable person. The story is also being shifted from the firefighter lobby to the landlord lobby. This is a struggle over who gets to create the truth. It is a battle over honor and that makes it especially dangerous. City Hall is so consumed with its own internal problems that it has little left over for the problems of the community. It is an out of control mess that will hurt all of us, and, in the end, yield no winners.

    • carol says:

      Given Jill Keimach’s overwhelming and unqualified support so far from our own city department heads, our police chief, and municipalities outside Alameda; impugning her integrity will be difficult. Frankly, there is no other way to expose back room shady dealing [or sexual harassment for that matter] other than making such recordings. City manager discussing city business with elected city officials on city time in a city office–all of which is funded by city taxpayers: The city taxpayers should be understood to be legitimate parties to such conversations, whether we are present or not!

  3. Paul Foreman says:

    Although I have no direct knowledge, I have reason to believe that his has already been referred to the County Grand Jury. Since they operate in secret, it is not knowable unless and until they actually file a report. A filing may be initiated by any citizen of Alameda.

    The speaker who impressed me most at Monday’s meeting was the former City Manager. (I think his name was Norton, but not sure). What he said was that whatever Oddie and Vella did with regard to trying to influence the selection of a fire chief, should be considered a “rookie mistake”. Ms. Keimach should be reinstated and the parties put this behind them.

    I put that together with the remarks of the two union folks complaining that Mis Keimach should have dealt with her complaint internally. While in general I thought these two gentlemen’s remarks were mean spirited and inappropriate, I do think that there is a kernel of truth in this one point.

    Ms. Keimach”s Oct. 2 letter was addressed to City Council does not demand the removal of Oddie and Vella from Council. On the contrary, in the last paragraph, it seeks to, “…put these past several months behind us and move together as a team…” Thus, I must ask why Ms. Keimach chose to go public with this matter?

    She could have called for a closed meeting of Council under several different exceptions to the Brown Act and presented this letter internally. If she was not happy with the response, she could still have gone public with her complaint.

    By going public she created the very scenario that the last paragraph of her letter seeks to avoid. Had she followed the internal course she would still be our working City Manager. Oddie and Vella would have been put on notice and rebuked in front of their peers and the City Attorney.

    I admit to Monday morning quarterbacking and argues against transparency as being paramount in every case, but maybe there is a lesson to be learned here.

    I worked hard to defeat Ms. Vella in 2016 and will not be supporting Mr. Oddie in 2018, but, I still wonder whether all of this could not have been handled without all the drama and vindictiveness. Just, a thought. Feel free to tell me how wrong I am.

    • carol says:

      OK. Paul, I think you need to go to the beginning to understand why the CM would go public.I am not privy to any special info, but back in Oct 2017, it seemed our new CM had never received even her first performance evaluation. As was mentioned by several knowledgeable speakers, this is not human resources best practices. That evaluation appeared to be waiting on who she selected as fire chief. The CM, a 30+ year veteran of public service, probably heard the train coming down the tracks and did not want to be railroaded. According to Keimach, she did follow the “internal course” by informing the city attorney about her concerns, before and after the recorded meeting. Now the veracity of the city attorney has been called into question. Under the relevant code section, Keimach had the right to convert that closed session into an open hearing, and requested it. If you read the correspondence from the city attorney attached to the closed session agenda, our city attorney appears to deny her that right and comes off quite defensive.

      • Paul S Foreman says:

        Carol, I have no idea whether the taped meeting was before or after the Oct 2 letter. My point is that the letter addressed to City Council was entirely appropriate, but I question the wisdom and appropriateness of going public with it without giving Council the opportunity to respond to it in a closed session.

        Obviously I was not in Ms Keimach’s shoes and operating under the stres she must been feeling. However, I think my question as to why she did not initially pursue this internally is a legitimate one. I am sure she had a reason, but we have not heard it.

  4. Karen Miller says:

    Who is Michael Jenkins and how is he qualified to have done the investigation?

  5. Karen Miller says:

    It’s not clear that they forwarded the interference claim. It sounds to me that they forwarded the tape recording to the DA.Two VERY different things!

  6. Karen Miller says:

    Seems as if there is a new development. John Russo(our former CM) was fired last night from his CM job in Riverside. He is the one responsible for giving the AFD the big pension packages prior to his leaving Alameda. Rumor has it that he has been courting certain Alameda officials for a job here for weeks. Maybe there is even more to this story than we know!!

  7. Denise Lai says:

    Why isn’t our city referring the actions by elected council members Oddie and Vella, wherein they interfered (attempted to influence) city management decisions, to the DA or a Grand Jury? Grand Jury would be more useful as DA O’Malley is known to avoid investigating municipal crimes (probably bc it means indicting her downline political support system, but I wouldn’t know for sure why she doesn’t, but she. does not.).

  8. barbara thomas says:

    I have yet to be positively impressed with City Attorney Kern, she certainly has no concept of litigation and its purposes and bends over backwards to make payouts to avoid it. I think it is time that we do that which the City of Oakland did: establish an elected City Attorney (first was Russo), and a strong Mayor government (Jerry Brown). Any investigation by the DA should include whether or not Vella and Oddie were merely harping the discordant fire fighters when they referenced “hiring the union choice would avoid another Raymond Zack incident” or whether they made that comment up themselves. (Not quoting verbatim as only have read the leaked versions.) If they were merely “harping,” the identify of these firefighters should be made known to management, and the firefighters disciplined.

    • Paul S Foreman says:

      Barbara, A strong mayor and strong councilmembers who would actually be responsible for a city department might work better, but an elected City Attorney is not a good idea. That position requires as much distance from politics as possible.

      • carol says:

        As an Alameda citizen who has had personal experience with a past Alameda city attorney [Highsmith] who violated my fourth amendment rights by invading my property without due process, seizing it and never reimbursing me for the loss–and then leaving town for employment with another jurisdiction, I think an elected City Attorney is a great idea. It would increase accountability in city government. Frankly, I am surprised at Mr. Foreman’s positions–aren’t you a Sunshine Commission representative? Your comments here seem to advocate more secrecy in government, not less.

      • Paul S Foreman says:

        i am on the Open Government Comission and certainly support transparency in most instances. I supported release of the Jenkins Report and also wrote to Council maintaining that their noticing of the closed meeting was inadequate. However I believe that there are instances where the transparency required by the Brown Act actually leads to disfunctional government.
        My major issue with the Act is the prohibition of any informal communication between council members in excess of two. It is interesting to me that neither the Governor nor the legislature are subject to this restriction. Why should a municipal legisllature be more restricted? Good government is the art of compromise and consensus building. The Brown Act forbids it and establishes rules that treat each councilmember as an island who can only discuss his thoughts with one of his peers, except at a public meeting immediately before a vote. As a result we get bad government and a lack of any working relationship between councilmembers with divergent views.
        Notwithstanding my issues with parts of the Brown Act I will fully enforce it so long as I sit on the Commision.

    • Catherine Bierwith says:

      Agreed! However, with an elected City Attorney, we could very well end up with someone financed by the Unions and be worse off! With an honest City Council, they could appoint an HONEST City Attorney.

  9. Steve Gerstle says:

    Paul, why would Jill Keimach walk into a closed meeting with the mayor and council after being told that they had the votes to fire her for not complying with the union’s choice of fire chief? Without seeing the investigative report, it is hard to comment as to why Jill Keimach acted the way that she did. But look at it this way. She is a very successful local administrator. She went to UCB as both an undergraduate and graduate. She spent her entire professional career in the East Bay and lives in Berkeley. She obviously has deep roots here. There is no indication that she acted the way that she did in an illogical manner. The letter of support that she received from the former mayor of Moraga is exceptional. So, assuming that she is not a madwoman or a thief, why would she behave the way that she did unless she felt immediately threatened? Should the position of city manager declare that whoever takes the position have experience with baseball bat like city politics? That Alameda’s genteel image does not extend beyond real estate ads? The stress of having to deal with this situation and deal with it in the public spotlight is hard to imagine.

    • Paul S Foreman says:

      Steve, you make a very cogent point that answers my question as to why she went public. If Jill’s job security was only threatened by Oddie and Vella she could use the internal process. However she knew that there was a third vote against her totally unrelated to the hiring of the fire chief and that an alliance could be formed to oust her. As they say, politics makes strange bedfellows.

    • Catherine Bierwith says:

      The CC WILL fire her! It will now be our job to take them on misusing Public Funds as it will cost MILLIONS and years to settle. We can’t afford this. Jill has been available for MEDIATION–why are they NOT going that route!??
      Maybe this will indeed bankrupt Alameda and we can once and for all get rid of this FF Union and its enormous unfunded vested liability.

  10. carol says:

    When it comes to motive, no one is mentioning the primary one which Jill herself stated. She did it for the good of the City. Think about it. She is old enough to retire, she’s at the top of her profession, she has a flawless track record. She doesn’t strike me as power-hungry or greedy. Who better to expose corruption, even if she has to fall on her sword to do it? Except for Rob Wonder and Bill Norton, Alameda has had a history of CMs with questionable behavior. The best was B Ray Fritz, who actually went to San Quentin–but only after Alameda High School went on strike over him. Reading the Riverside case about Russo was very instructive. Some people said their mayor was crazy to sue the city over his insane salary–but…it worked.
    Call me crazy, but I believe there are still some public servants who actually serve the public.

  11. nyborn2013 says:

    Wonder who will run for Mayor with the ability to manage the crazy team.

    Sent from my iPhone. Pardon typos and errors.

    >

  12. MP says:

    While the Council as a whole can make decisions about the report and what to disclose out of its closed sessions, in practical terms, the Councilmembers who were recorded, alone, hold some important keys to the recording. There may be a status quo or non-disclosure agreement currently in place covering the recording for now. If not, the risk of litigation from a Councilmember (or perhaps a third person) over the recording, would likely have the same effect. (According to the East Bay Express, in fact, Assemblyman Bonta has threatened litigation concerning a recording that he suspects was made of a phone call he made to Keimach). It is in that sense that the Councilmembers hold the keys to the recording. Were they to call for its release, the most obvious risks would dissipate.

    If the recording stays under wraps – by agreement or operation of risk aversion – until a court can determine finally the applicability of PC 632 & 633.5, that could be quite a long time. And it may be forever if Ms. Keimach sees it in her personal interest to trade non-disclosure of the recording for consideration – either from the recorded Councilmembers or the City (i.e. a majority of the Council). Resistance to disclosure, however, is not the only approach.

    The Councilmembers may come out of this looking better in the long run if they publicly call for release of the recording. At a minimum, one hopes that the Councilmembers have enough trust in Alameda voters not to fear release of the recording because it may contain a slip of the tongue or two. Most people are forgiving of that type of thing and slips of the tongue are not always as harmful as feared. Sometimes just the opposite! Voters may greatly appreciate the way in which the Councilmembers handled themselves with a City Manager that some have deeply criticized.

  13. MP says:

    The recent East Bay Express story quoting others (Assemblyman Bonta, Local 689) who suspect Keimach of other recordings makes her look like a real recording fiend (almost anthropological in scope, perhaps destined for the field recording section at the Smithsonian). Maybe that is true (and it would seem that the public’s interest in those other alleged recordings is not quite the same). However, were the Councilmembers to call for release of the recording in question that would hardly create an incentive for others to go down Keimach’s path. Deserved or not, her current position, including having the matter referred to the D.A., hardly seems enviable.

    There may be third parties whose rights are implicated by the recording, which would weigh against calling for its release. But, so far, no such claim has been made.

  14. barbara thomas says:

    Not sure how we get accountability without an elected City Attorney. In 1989 we had one City Attorney who has serious litigation experience. Our City Attorney has a staff of 5, and still comes up with “legal” opinions that, at least according to columns in this blog, are way off the law. Perhaps someone can explain to me why the City would pay out millions in a lawsuit, for example, a physician who drowned after driving off the boat launch (that I swam from many times as a kid) without conducting any discovery? (legalese for finding out the facts and legal theories that the other side would be relying upon) What kind of attorney does that? One with a blank checkbook and no controls, from the 4 “lawyers” on the council? Don’t recall how they voted, but neither you nor I Paul, nor Mr. Sullwold, would have authorized this.

  15. MP says:

    Levy v. City of Santa Monica (2004) 114 Cal.App.4th 1252, describes rules pertinent to Keimach’s claim that certain Councilmembers violated the Charter (in any actionable sense) under the First Amendment. Applied here (in essentially a factual vacuum), Levy’s interpretation of the First Amendment would protect advocacy for a fire chief candidate (even though it is an “attempt to influence” the City Manager’s selection), so long as it did not cross a line between advocacy and, say, an order (constructive or express, e.g. “I will vote to fire you unless you choose X to be fire chief”).
    But Levy does not just leave it there. It continues, “There are better ways to discourage improper conduct. “Under our system of government, counterargument and education are the weapons available to expose these matters, not abridgment of the rights of free speech.”

    It would be ironic if the original legal questions concerning Charter section 7-3 were resolved with an invocation of Councilmembers’ right to free speech on public matters, but the public ended up with less than full disclosure of what that free speech actually was. That may be a perfectly legal result in this case. But “counterargument and education” in the upcoming election based on fully disclosed facts would be far, far preferable to “counterargument and education” focused on the who’s, how’s and why’s of facts being suppressed.

    • Bierwith Catherine says:

      NONE of this matters. Our council WILL fire her in 9 days. In my humble opinion, IT WILL BE A MASSIVE MISUSE OF PUBLIC FUNDS!
      Keeping her, no matter the situation, would amount to about $575k to let her finish her contract. Compare that to the INEVITABLE LAWSUIT to come! $3mm in lost earnings+ litigation fees+ 3 years. $6-7mm is a MASSIVE MISUSE of taxpayer dollars.

      • MP says:

        You may be right that Ms. Keimach’s contract will be terminated in 9 days and that it will cost us what you predict. Saying we should keep her “no matter the situation”, however, seems to go too far. The best way to avoid poor decisionmaking in the remainder of this case, and (more importantly perhaps) in our city’s future, is to communicate an expectation of full disclosure of all the facts to the public and that there will be political consequences if that expectation is not met. Otherwise, it might as well not matter.

  16. barbara thomas says:

    One of the chief lessons of this fiasco, is that Oddie and Vella have very poor judgment in personnel decisions. They should not allowed to participate in hiring or firing council employees. Add Oddie’s resort to the Bankruptcy Court for salvation from his lack of financial acuity in his own private life. What kind of people have we entrusted with representing the citizens of Alameda? This puts in issue Rob Bonta’s judgment as well, as these are two of his “Babies”. We have to do better.

  17. MP says:

    Donald Sterling, former owner of the LA Clippers, spewed racism (in his home), but was tape recorded by his (former) friend, V. Stiviano. TMZ broadcast it leading to the NBA banishing Sterling. Many, if not most, in the public agreed with the NBA’s decision, believing that racism has no place in the NBA. Sterling then sued Stiviano for the taping and TMZ for publishing it in Los Angeles County Superior Court (Case No. BC590575).

    The Superior Court quickly dismissed Sterlings claims against TMZ (on an Anti-SLAPP motion). Substantively, the First Amendment protected TMZ’s publication of the tape and, in addition, TMZ did not violate Penal Code section 632: “TMZ did not ‘eavesdrop’ or ‘record’ his conversation; rather, Stiviano made the recording. ‘Penal Code section 632 does not prohibit the disclosure of information gathered in violation of its terms’ [citation omitted]”.

    According to press accounts, Assemblyman Bonta, if not others, have threatened litigation over the recording(s). Calling that a Donald Sterling strategy might be unfair, as this is surely a different case. Publication might avoid that perception and, at the same time, reduce the settlement leverage, if any, created by the tape.

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