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.
Brown Act: Open-Public-2016
Sunshine Ordinance: Alameda Municipal Code, Article VIII (Sunshine Ordinance)