The Alameda Two

Remember the Keating Five?

The political consultants and propagandists defending Council members Jim Oddie and Malia Vella against allegations of improper interference in the selection of the City’s new fire chief ought to.  And if they don’t, maybe the Alamedans who go to the polls this November will.

Recently, the Oddie/Vella spinmeisters have gone into overdrive in an effort to divert attention away from the Councilmembers’ own conduct to the means employed by City Manager Jill Keimach to obtain evidence of it.  Not only have they branded Ms. Keimach as a serial criminal “wiretapper,” they have portrayed her supporters as the “anti-rent control/no Just Cause crowd” (the quotation – hyphen, initial caps and all – comes from Ms. Vella’s Facebook page) or the “folks who have to head home before it gets dark” (the phrase used by local labor leader Mike Henneberry to mock those who laughed as he addressed Council on April 16).

But this diversion can’t – or shouldn’t – wipe from voters’ memories certain uncontested facts:

  • Under the City Charter, the city manager has sole authority to appoint subordinate officers such as the fire chief.  The Charter gives no role in the selection process to Council members, and they have neither the duty to ratify, nor the right to veto, the city manager’s choice.
  • The Alameda firefighters’ union wanted Ms. Keimach to appoint a former union president and current fire captain, Domenick Weaver, to succeed retiring Chief Doug Long.  (In Alameda, a captain typically supervises a three-person crew.)  The first of the two most recent public-safety-union contracts providing guaranteed annual salary increases was signed during Capt. Weaver’s tenure as IAFF Local 689 president.
  • The firefighters’ union had not only endorsed but promoted the Council candidacies of Mr. Oddie and Ms. Vella, both of whom were running for office for the first time, in 2014 and 2016, respectively.  The union spent $11,799.57 on fundraisers, mailers, and phone banking for Mr. Oddie and $2,035.48 on fundraisers and mailers for Ms. Vella.  It also provided phone lines – at a cost of $1,750.60 – to “Alamedans United,” the PAC backing Ms. Vella and other pro-labor candidates.  (All told, Mr. Oddie got $23,544.90, and Ms. Vella $41,235.67, from organized labor for their campaigns.)
  • After Chief Long announced his intent to retire, Mr. Oddie wrote a letter to Ms. Keimach on official City letterhead “strongly recommend[ing]” Capt. Weaver for the fire chief’s job.  “Dom has demonstrated his leadership abilities for many years,” Mr. Oddie wrote, “in the Department, as an officer of IAFF Local 689, and in our community.”
  • A day later, Mr. Oddie told Police Chief Paul Rolleri, “Well, she’d better do the right thing,” referring to Ms. Keimach’s decision about the new fire chief.  “There are already two council members who are ready to fire her if she doesn’t.”
  • Mr. Oddie and Ms. Vella arranged a private face-to-face meeting with Ms. Keimach to discuss the appointment of the new fire chief.  We don’t know the contents of the discussion, but we think it is safe to assume that the two Council members urged Ms. Keimach to give the job to Capt. Weaver.  (There is, of course, a tape recording of the meeting, but neither Mr. Oddie nor Ms. Vella, whose “privacy” allegedly was invaded by Ms. Keimach, has called for its public release).
  • Ms. Keimach ended up selecting Edmond Rodriguez as the new fire chief.

This is where the story of the Keating Five comes in.

The scandal stemmed from the actions taken by five United States senators, including California’s Alan Cranston, to influence federal officials in their decisions about the fate of a savings and loan run by one of the politicians’ major campaign fundraisers.

The S&L was known as Lincoln Savings & Loan, and its president was Charles Keating.  Relations between Lincoln and its primary regulator, the Federal Home Loan Bank Board, began to deteriorate in 1982 after the Board’s chairman, a man named Edwin Gray, proposed new rules Keating regarded as inimical to Lincoln’s business strategy.  The situation worsened when the FHLBB staff prepared a preliminary audit report critical of Lincoln in 1986.

Keating had friends on Capitol Hill, particularly the five senators, for whom he had raised a total of $1.5 million over the years.  The legislators made it their mission to act as advocates for Lincoln with the federal banking officials.

At a meeting whose ostensible purpose was to discuss pending legislation, one senator, Michigan’s Don Riegle, pulled Gray aside and told him that “there were senators out West who were concerned” about the FHLBB’s dealings with Lincoln.  Senator Riegle then set up a sit-down for the other four senators with Gray, who was told not to bring any aides with him.

At the meeting, Gray fended off the politicians by describing himself as a “big picture” guy unfamiliar with the details of Lincoln’s situation.  But the senators requested and obtained a follow-up meeting for all five of them with the staffers in the FHLBB’s San Francisco office who were responsible for the case.

According to notes taken by one of the regulators at the second meeting, the lawmakers differed in how they couched their demands that the FHLBB call off the dogs.  “I wouldn’t want any special favors for [Lincoln],” Senator John McCain of Arizona declared (which the staffer took to mean that is exactly what he did want).  Another senator, John Glenn of Ohio, was more direct. “[Y]ou should charge them or get off their backs,” he said.  Told that it was “very unusual” for senators to get so involved with regulatory decisions, Senator Dennis DeConcini of Arizona responded:  “It’s very unusual for us to have a company that could be put out of business by its regulators.”

The get-together ended abruptly when the regulators revealed that they intended to refer the Lincoln case to the Justice Department.  Later, the San Francisco staff recommended that Lincoln be shut down, but their bosses in Washington overruled them.  Lincoln’s fortunes continued to decline, and the government ended up seizing the thrift after all.  Lincoln declared bankruptcy.

The story of the five senators’ intervention with the FHLBB then hit the papers, and the Senate Ethics Committee began an inquiry.  The senators’ primary defense was that they had done nothing wrong.  Meeting with the Bank Board chairman and FHLBB staff to push Lincoln’s cause did not violate any statute or Senate rule, they pointed out.  As far as the legislators were concerned, they were only discharging their duty to represent a constituent.  “This duty may create an appearance of mutual dependence,” Senator Cranston’s lawyer argued, but “there is nothing improper, nor is there an appearance that there is anything improper, about that mutuality.”

Ultimately, after months of hearings and debate, the Ethics Committee voted to “reprimand” Senator Cranston for engaging in “improper and repugnant” conduct.  The other four senators escaped sanctions, but the committee found that two of them (Riegle and DeConcini) had given the “appearance” of acting improperly and the other two (Glenn and McCain) had exercised “poor judgment.”

The Keating Five have not fared well in the court of public or scholarly opinion.  Almost immediately, they saw themselves featured in a deck of playing cards whose face showed Keating holding up his hand with the five senators as puppets on his fingers.  Since then, every time McCain has run for re-election – or for higher office – his detractors have dredged up his role in the scandal and forced him to defend himself yet again.

Likewise, soon after the hearings were over, Dennis F. Thompson, the Alfred North Whitehead Professor of Political Philosophy at Harvard, published an article in the American Political Science Review in which he argued that the behavior of the Keating Five exemplified a new form of political corruption he called “mediated corruption.”  This form of corruption occurs when an elected official, having obtained a political benefit (like a campaign contribution) from a private party, serves as an intermediary in an attempt to influence another public official to take an action for that party’s benefit (like calling off a regulatory audit).  The intervention is “corrupt,” Professor Thompson suggested, if a “reasonable citizen” would believe that it “bypasses the democratic process.”  He explained:

When an official accepts large contributions from interested individuals under certain conditions, whether or not the official’s  judgment is actually influenced, citizens are morally justified in believing the official’s judgment has been so influenced and acting on that belief themselves.  The official is guilty of failing to take into account the reasonable reaction of citizens.

(Another Harvard professor, Lawrence Lessig, later sounded a similar note in his book, “Republic Lost,” in which he introduced the concept of “dependence corruption.”  When a politician comes to depend on contributions from interest groups to attain, and retain, elective office, her responsiveness to the will of ordinary voters falters.  Rejecting the position taken by Senator Cranston’s lawyer, Professor Lessig argued that this “mutual dependence” between officeholder and funder is in fact pernicious.  Not only does it distort a legislator’s policy choices, it also diminishes the public’s trust in government.)

From this perspective Mr. Oddie and Ms. Vella cannot rest easy even if the evidence ultimately leads to the conclusion that they did not “threaten” or “intimidate” Ms. Keimach.  Their decision to intervene at all in a process in which Council members are supposed to play no role may strike a “reasonable citizen” as objectionable by itself.  What’s worse, by urging the city manager to give the fire chief’s job to the candidate hand-picked by the union that underwrote their campaigns, they can be seen as acting more like paid lobbyists than public servants.

Mr. Oddie may well have been careful enough not to say to Ms. Keimach what he said to Chief Rolleri:  pick Capt. Weaver or lose your job.  Ms. Vella may well have been shrewd enough to tell Ms. Keimach, like Senator McCain did Chairman Gray, that she didn’t “want any special favors.”  If so, the two Council members, like the Keating Five, can claim that they did nothing wrong – certainly, nothing illegal.  That may be good enough for some.  But it may not play well with those Alamedans who cringe at the idea of their elected officials even appearing to put their contributors’ wishes ahead of the interests of the citizenry as a whole.  In that event, Mr. Oddie and Ms. Vella may find themselves in trouble the next time they’re on the ballot.

Sources:

Keating Five: Keating FiveCQ Almanac Online Edition, Keating Five

Campaign disclosure reports are available on the City website: http://docs.ci.alameda.ca.us/WebLink8/Browse.aspx?startid=310100&row=1&dbid=0

The Thompson article can be read online at http://www.jstor.org/stable/2939047?seq=1#page_scan_tab_contents (free registration required)

The Lessig book can be found at the public library.

About Robert Sullwold

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

13 Responses to The Alameda Two

  1. barbara thomas says:

    Just a silly question, but is Malia Vella the same lawyer practicing under the name Mary Hatsume Vella? The Rules of Professional Conduct preclude lawyers lying about their names, so why the different name for politics? Was there a legal name change?

    • Mike McMahon says:

      Maybe you should ask Edmund Brown, I mean Jerry Brown. Or you can ask Marie Robinson, I mean Marie Gilmore. Candidates place names on the ballot that are commonly used.

    • vigi says:

      Yes. I looked that up 2 years ago. There is some strange lawsuit attached to her Mary name from years ago. You know, since Obama, the name Malia is just so much cooler than plain ol’ Mary
      McMahon: At least both Robinson and Gilmore are real names for our former Mayor Same for Edmund G. Brown , Jr. No comparison to someone who changes their first name arbitrarily.

  2. Allan Mann says:

    The out-sized influence of deep-pocketed special interest groups in Alameda needs to be stopped at the source with some form of campaign finance control and some way to prohibit council members from voting on issues that affect their major contributors. I’ll leave it to the policy wonks to figure out whether that’s feasible, but I’ll be looking closely at campaign donations before I vote in the city election in November.

  3. NYBORN says:

    I think it’s too late for Vella and Oddie, if I go by what I have heard for the past ninety days from many Alameda friends over dinner and parties. They both crossed the line and it appears they will pay for it in losing their seats. Vella may have an outside chance, but Oddie appears to be out in their mind. Most hope that Jill returns so we can get back to caring for Alameda instead of the unions and Rob Bonta.

  4. Robert Schrader says:

    Very good points, Robert, as it is important to note that – regardless of all the legal positioning – the true judge will be the public at the ballot box. Seems that some elected officials have misunderstood the difference between supporter and voter. Supporters may have already made up their minds, but they are not sufficient in themselves to get the candidate elected – only to persuade the undecided to do so. And, the undecided look at the broad picture in making up their mind – therefore the importance of ‘optics’.
    I hope the Alameda electorate has a discerning gaze and long memory here. We really need more principled officials – like Tony Daysog – who suffered in the last election from his insistence to avoid ‘influential money’ – unlike his opponents.

  5. Steve Gerstle says:

    If you want to sue the City for damages, better do so now before the money runs out.
    https://www.eastbaytimes.com/2018/04/27/alameda-firefighters-union-chief-seeks-200k-from-city/

    Can the general public sue for economic loss and emotional distress?

  6. MP says:

    Aw, shucks, Dean Sullwold, next quarter’s classes sound very intimidating:

    “’Mediated Corruption’ What It Is and How to Avoid It” – taught by Prof. Vella, an “adjunct professor of practice at Mills College’s Lokey School of Business and Public Policy, teaching ethical policy making and an introductory class on economics and policy- making”; or

    “Management of the ‘Appearance of Mutual Dependence’ With Applied Sunshine” – taught by Prof. Oddie, who “served as the first Chair of the City’s Open Government Commission, ensuring government operated in compliance with the City’s Sunshine Ordinance.”

    If all that weren’t complicated enough, I’m an auditory, not a visual learner. With all those big words, I’m worried I’ll struggle if it’s all reading and no audio aids.

  7. Eric Strimling says:

    Mr Sullwold usually does not sink to this level of hit piece, and so I am surprised. He is usually data driven, and while I often disagree with the conclusions he reached on the basis of those datum, I have generally respected his process. This article falls well below his normal standards.

    First, the connection to the S&L scandle are stretched at best. But, even if the analogy did hold, the conclusion Mr Sullwold tries to reach, that the voters will punish the politicians for this conduct, is disproved in his own article, and by history. Per Mr Sullwold, every team Mr McCain has run for office the scandle has come up, and yet Senator McCain has won every one of those elections! As did the other Senators involved.

    I fear that Mr Sullwold has lost his perch looking over Alameda city politics and has become enveloped in a bubble of people who just agree with his pre-set opinions.

    • carol says:

      Of the Keating Five, John Glenn and John McCain were punished the least, because they were judged to have had the least involvement, Senators Glenn and McCain were cleared of having acted improperly but were criticized for having exercised “poor judgment”.They were the only two of the five who continued to run for and hold office; the other three did not even try. Having Been an astronaut or a Vietnam POW probably covered a few sins
      Vella and Oddie really have nothing else going for them except for holding office in Alameda, their first task, and one at which they seem to have failed miserably. They should take their cue from the other three Keating senators and gracefully bow out. But I’m not holding my breath.

  8. JOANNE GOSLING says:

    Looking forward to your next column. I just finished reading the report that was released yesterday and I read that Oddie did wrong but somehow Vella skated by. And were are the emails they sent to the City Manager? And what about the City Attorney. And now DelBono is suing the City. What a tangled mess. Please help me understand.

    thank you,

    Joanne Gosling

    >

  9. MP says:

    An aspect of the report that was a little puzzling is the one clear boundary line it found in the City Charter. Consistent with its reading of the constitutional and statutory context within which the Charter operates, the report found that the Charter’s prohibition against attempting to influence the City Manager’s appointments translates into an “abundantly clear” prohibition against promoting a particular candidate. Without dispute, one might say, the Oddie letter crossed that line, and there are conflicting accounts of the August 16 meeting (that the tape would clarify) as to whether or not that line was also crossed during the meeting.

    A question unaddressed directly in the report, however, is whether or not it is likewise “abundantly clear” that the Charter provision prohibiting attempts to influence also covers discouraging the City Manager from selecting a particular candidate. Activity to promote or discourage are arguably just two sides of the same “influence” coin. Perhaps promoting, because it is more narrowly focused than discouraging – except when only two candidates remain – is more of a threat to the integrity of the process. Perhaps that is enough to say that the difference between promoting and discouraging is one of kind rather than degree when it comes to what qualifies as an attempt to influence versus what is mere opinion-giving or commentary on the selection process.

    Although the contents of the August 16 meeting are disputed, as is the meaning that was intended to be conveyed by mention of the Raymond Zack matter, there seems to be no dispute that the Zack matter was both mentioned and that it was intended either as part of promoting the IAFF-backed candidate (as Keimach understood it) or to discourage selection of [redacted], at least as far as Mr. Oddie stated he intended it: “Councilmember Oddle contends that he made the reference to Raymond Zack in response to Keimach bringing up the [redacted] candidacy; according to Councilmember Oddie, [redacted] took a lot of heat from the incident and was too tainted by the incident to be appointed Chief.”

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