Same old, same old

Plus ça change, plus c’est la même chose.

Or, to make our point in English, whatever else may be happening at City Hall, the Alameda fire department never misses a beat.  Regardless of the identity of the Fire Chief and City Manager, or the state of the City’s finances, the AFD can be counted upon to seek an ever-larger piece of the General Fund pie to pay for more staff, equipment, and other departmental desires.

With the current Council – as well as its predecessor – the fire department usually gets what it wants.  But maybe – just maybe – things are beginning to change.

For weeks, local attention has focused on the fate of City Manager Jill Keimach, who blew the whistle on the actions taken by Councilman Jim Oddie and Vice Mayor Malia Vella to influence the selection of the City’s new fire chief (and recorded a meeting at which, Ms. Keimach alleged, the two tried to twist her arm).  Finally, Council – by a 3-2 vote from which both Mr. Oddie and Ms. Vella failed to recuse themselves – agreed to pay Ms. Keimach off, and her last day on the job was Tuesday, May 16.

(We comment below on the “separation agreement.”)

In the meantime, staff was putting together a Fiscal Year 2018-19 “mid-cycle budget update” for a special Council meeting on May 18.  When the two-year budget was adopted in June 2016, staff projected that the City would incur an operating loss of $2.87 million in FY 2018-19 – which would require a drawdown in an  equivalent amount from General Fund reserves.  Now, staff forecasts that, thanks primarily to greater-than-expected property tax and property transfer tax receipts, the City actually will generate an $885,000 surplus from operations in the coming fiscal year.

This assumes, of course, that the revenue projections are realized and that Council holds the line on spending.

Enter the fire department.

Last year, on the heels of the “Ghost Ship” tragedy in Oakland, then Fire Chief Doug Long presented a proposal for adding three new positions – a captain and two firefighters – to the department’s roster, as well as buying three new “staff vehicles” and miscellaneous equipment, to beef up the existing fire prevention bureau.  Dismissing the argument that, if additional personnel were needed, civilian employees could inspect buildings just as well as firefighters could – and at a far lower cost – Council voted, 3-2, to approve the staffing increase and insert the extra expense into the budget.

Councilwoman Marilyn Ezzy Ashcraft joined Mr. Oddie and Ms. Vella in the majority.  Subsequently, Chief Long gave the job of overseeing the expanded bureau to Alameda firefighters’ union president Jeff DelBono.

The estimated cost of the new vehicles and other equipment was $188,684.  City finance staff calculated that the three new positions would boost General Fund expenditures by between $810,196 and $847,860 in FY 2018-19 (and by higher amounts in later years, due to guaranteed salary increases and higher pension contribution rates).

Since then, Chief Long has retired and Ms. Keimach has been forced out.  But for the fire department, it’s business as usual.

The staff report submitted for the mid-cycle budget update identified seven items of additional spending sought by AFD for FY 2018-19:

  • $365,723 to create the position of “Fire Marshall.”
  • $288,385 to add a captain to “recruit, train, and employ a diversified workforce.”  (If we’re adding up the numbers in the previously approved budget correctly, 21.5 captains currently are authorized.)
  • $130,000 for a “dive rescue” program.
  • $100,000 for “outside vehicle repairs.”
  • $60,000 as a “local match” for the “community paramedicine” program.
  • $52,959 for “dispatch services.”
  • $37,000 for the Emergency Operations Center.
  • $74,200 in “other operating cost augmentations.”

The grand total came to $1,108,267.  If Council were to approve all of the additional fire department spending, the projected $885,000 General Fund surplus for FY 2018-19 would turn into a $223,267 deficit.

Staff – we know not who – managed to kill the request for another captain before it ever got presented to Council.  “After discussions with City management,” Acting Assistant City Manager Jennifer Ott told us, new Fire Chief Edmond Rodriguez “recognized that the mid-cycle budget was not the appropriate time for requesting this position.”

But creating the Fire Marshall position stayed on the list.

According to the slide presentation prepared by staff, the person given this job would be responsible for providing “management and oversight to the AFD’s Fire Prevention and Community Paramedicine programs.”

There ain’t a lot of folks to manage and oversee.  As we’ve noted, the fire prevention bureau employs two firefighters, who currently are being supervised by Capt. DelBono.  The “community paramedicine” program consists of two firefighters trained as paramedics, who currently are being supervised by division chief Ricci Zombeck.  (The salaries for the latter program are paid – except for the “local match” – by a county grant.)

It may seem strange that another layer of administration is needed to sit on top of the existing supervisory structure.  Maybe Chief Rodriguez was planning ahead for next November, when the grant expires and the county stops paying the salary of a division chief:  better to get the current Council to authorize the new position now than to wait till after the election.  In any event, Ms. Ott told us that Chief Rodriguez envisioned a more far-reaching role for the Fire Marshall than the staff presentation suggested.

In addition to overseeing the fire prevention bureau and the EMS division (rather than, apparently, the community paramedicine program), Ms. Ott reported, the new Fire Marshall

would be responsible for working on several committees, such as the Design Review Team, the Transportation Committee, the Alameda County Fire Prevention Officers Association, and the Alameda County EMS Section.  There will be responsibilities related to new development oversight, such as working to ensure that projects meet California fire code requirements.  There will be similar responsibilities related to EMS code and requirements for our field personnel related to certifications and qualifications.

When Chief Rodriguez presented the proposal to create the new position, it got support only from Councilman Oddie, who received $11,799.57 in contributions from the Alameda firefighters’ union for his successful Council campaign in 2014 and is running for re-election this year.  Mayor Spencer and Councilman Matarrese opposed the idea, just as they had objected to the staffing increase for the fire prevention bureau.  But this time Councilwoman Ashcraft, who had furnished the third vote last year to give the fire department what it wanted, also disapproved.

We didn’t attend the May 18 meeting, and it was not videotaped, so we don’t know what explanation, if any, Ms. Ashcraft gave for flipping on the firefighters.  (We got the tally of the Council members’ stated preferences from Ms. Ott.)  But it’s true that Ms. Ashcraft recently defied Capt. DelBono’s demands that she lobby for his hand-picked candidate for fire chief, and that the IAFF Local 689 president thereafter accused her of having “defamed” him at coffee shops and City Hall.  According to the East Bay Citizen, a reliable source for union scuttlebutt, “Ashcraft is persona non grata to the firefighters and the rift appears irreparable.”  If so, the Councilwoman, who is running for mayor, may feel herself liberated to put aside the pressure to placate the firefighters’ union leader and instead prioritize protecting the public purse.

And, in case you’re wondering:  All four of her Council colleagues had stated their positions before Ms. Vella spoke – and then chose to equivocate.  “It became clear,” Ms. Ott told us, diplomatically, “that the majority of the City Council did not support the Fire Marshal position before Vice Mayor Vella had a chance to provide her feedback on the budget requests.”

The only action taken at the May 18 meeting was for Council to “give direction” to staff.  The Fire Marshall position won’t be included in the FY 2018‑19 budget staff presents to Council on June 19, but that won’t preclude any Council member from bringing it up anyway.  There is, after all, a track record to maintain.

One final comment on the fire department’s spending proposals:

The request for a “dive rescue” program may have called to our readers’ minds, as it did to ours, the Raymond Zack incident in which the firefighters (and cops) declined to attempt to rescue a drowning man because, union leaders later said, the City Manager had prevented them from getting the necessary training.  When we asked Ms. Ott about this, she told us that the latest request was prompted by a different incident, which she said was one of four similar events in the last four years.

On November 25, 2017, an Alameda man drove his minivan into the estuary (from the Oakland side).  According to news reports, firefighters from multiple agencies, including the United States Coast Guard, Oakland, Alameda County and San Francisco, as well as the City of Alameda, responded, with crews from the Alameda County Sheriff’s Office arriving on the scene within 10 minutes.  Divers from San Francisco pulled the driver out of the water, and paramedics took him to the hospital, where he died.

AFD now wants to be able to handle incidents like this itself without calling for “mutual aid,” Ms. Ott told us:

The program will provide the fire department an enhanced ability during water rescue incidents.  In each of the four incidents fire department members attempted to rescue occupants of the cars but were unable to, due to constraints of not having rescue diver equipment and training.  The addition of dive rescue to the existing surface water rescue program will enable the fire department to enter the subsurface waters and attempt to rescue victims in incidents of this type.

Who was it who said, “In every crisis, you can find an opportunity”?  (It’s either JFK, or Rahm Emanuel, or maybe both.)  It’s a mantra our fire department lives by.

Such a deal!

The old chestnut among litigators is that the mark of a “good” settlement is that both parties walk away unhappy.

The “separation agreement” between the City of Alameda and former City Manager Jill Keimach doesn’t fit that description:  In fact, one of the parties – Ms. Keimach – has every reason to be ecstatic about the bargain she and her lawyers cut with the City.

Had Ms. Keimach continued working at City Hall for the remaining 22 months of her employment contract, she would have earned about $478,000 in base salary and $27,500 in deferred compensation.  In addition, the City would have made pension contributions and provided health insurance.

The separation agreement gives Ms. Keimach what looks like a far better deal.  She gets a cash “severance payment” of $254,700 (the equivalent of a year’s salary) payable in 12 monthly installments, plus a cash “separation payment” of $519,709 (the equivalent of another two years’ salary).  That’s a total of $774,409 in cash.

In addition, the City will go on paying her health insurance for 18 months.  And, of course, she won’t need to spend one more minute dealing with our local politicians and union leaders.

The City thus may end up shelling out more to get Ms. Keimach to give up her job – and her claims against the City – than it would have paid to keep her around.  What’s more, the separation agreement requires the City to pay the law firm representing Ms. Keimach $125,000 in attorneys’ fees and costs.  That brings the total cash price for Ms. Keimach’s forced departure to just a tad under $1 million (not counting the health insurance costs).

For a settlement of threatened litigation, the $1 million price tag is pretty steep.  Ordinarily, lawsuits settle at a discount to the amount of the potential damages, if for no other reason than that avoiding the risk of litigation itself justifies a lower price.  It is a rare case indeed that settles for a premium over the potential recovery.

We can think of two exceptions to the general rule.  A defendant may pay the plaintiff extra to keep her mouth shut about the alleged wrongdoing.  (Think Donald and Stormy.)  But the separation agreement between Ms. Keimach and the City doesn’t contain any non-disclosure clause (or any non-disparagement clause, either).  The former City Manager is free to say whatever she wants about her experiences at City Hall.

The other exception is when the plaintiff truly has got the defendant by the short hairs (to use the legal term):  Liability is clear, compensatory damages are certain, and the only issue is how much the jury will award in exemplary damages to punish the defendant for its outrageous conduct.  Facing a sure loser and substantial damages, the defendant may see no alternative to opening its checkbook to settle the claim.

Was this the case evaluation the City’s litigation counsel gave their clients on Council?

We’ll never know, since all of the discussions leading up to approval of the separation agreement took place in closed session (with Council members Jim Oddie and Malia Vella taking part even though each benefits personally from the release given by Ms. Keimach).  But if some Council members left the back room looking pleased with themselves, they may find voters eager to wipe the smiles off their faces the next time they stand for election.


FY 2018-19 budget update: 2018-05-18 Presentation

Fire prevention bureau: 2017-04-18 staff report re adding new positions

Community paramedicine program: 2014-07-29 staff report re paramedic program2017-04-18 staff report re county paramedic program

Keimach contract: Keimach Contract

Keimach separation agreement: 2018-05-15 Keimach Separation Agreement

About Robert Sullwold

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

9 Responses to Same old, same old

  1. Bill says:

    Jim Oddie must leave. He is far too uninterested in Alameda and way too interested in kissing up to the Unions. AFD make and spend far too much money as it is. Every time I see their trucks parked at the Alameda High School Pool, I can’t help but view money going out the window. The next election is our opportunity to drive Oddie away, so he can not do any more damage to our city. Vella needs to watch out as well. She needs to remember who she is working for. It is NOT the unions!

  2. Steve Gerstle says:

    Malia Vella does work for the unions.
    And Jim Oddie works for Rob Bonta.

  3. Barbara Thomas says:

    Our City Attorney prefers magnificent payouts to those that sue, in order to keep from going to court. Often before discovery is even commenced in civil litigation. She is holding her own with the firefighters union in bankrupting our city. It is time to hold her and her large department of attorneys and paralegals, accountable. Since we are self- insured, all settlements such as the Keimach and doctor who drove herself into the estuary, should be subtracted in some percentage from the City Attorney’s budget. (I for one support an elected City Attorney) She hires “consultants” for writing legislation, such as the “cannabis” ordinance- which is essentially verbatim a previous rendition, not even bothering to remove the word “medical” for cannibis use which has now been legalized in California. And consultants for the ersatz “no legs” investigation of Oddie/Vella Gate, who did not have the sense to demand a waiver from any privacy concerns from all those involved so that he and perhaps the voters – could listen to the tapes. It is pretty shameful considering we have 4 attorneys on the Council: Oddie, Vella, Spencer and Ashcraft. Due to their drippingly obvious political intentions of trying to unseat Spencer as Mayor, they are allowing the City Attorney to get away with shenanigans that they would never do themselves in their own practice, for those that practice law. And none of them are willing to put aside their “blind ambitions” to force the City Attorney to do her job. They just want all the bs generated by their ambitions and payback to go away – at any cost.

  4. carol says:

    Did Jeff delBono’s defamation suit against the City go away with Jill Keimach, or is the City still fighting that one? [PS: isn’t there only one “l” in Fire Marshal?]

    • There has been no public announcement of a decision by Council on the claim Capt. DelBono filed against the City.
      You’re right about “Marshal,” but I chose to use the spelling in the materials prepared by staff.

  5. carol says:

    Tomorrow, May 30, 2018, is the seventh anniversary of Raymond Zack’s tragic death. RIP Raymond.

  6. Michael Schiess says:

    The City Staff and Council seems to not care or listen as we become stuck in a fiscal quagmire that is primarily self inflicted. I was very surprised when no one objected to this bit of frivolity: I love old cars and history but I shudder to think what the city spent on this truck they sold in 1964 for $1. A shiny new toy
    for our FD to play with.

  7. Steve Gerstle says:

    The head of the firefighter union has threatened to sue Marilyn Ashcraft:
    “DelBono’s claim accused Ashcraft of making “false and malicious accusations of crimes and misconduct” on an unknown date last November at The Local, a cafe on Park Street, and at Julie’s Coffee & Tea Garden, also on Park Street, in February, according to the claim.

    In the past, Marilyn Ashcraft has received funds from the firefighter union for her campaigns. Now, things seem to have soured after Ashcraft supported Jill Keimach. Which reminds me of the old Jewish joke:

    ” A businessman boarded a plane to find, sitting next to him, an elegant woman wearing the largest, most stunning diamond ring he had ever seen. He asked her about it.
    ‘This is the Klopman diamond,’ she said. ‘It is beautiful, but it’s like the Hope diamond; there is a terrible curse that goes with it.’
    ‘What’s the curse?’ the man asked.
    ‘Mr. Klopman.’”

    Speaking of curses, here is the most current list of contributions to Malia Vella.

    We are coming up on the semi annual July 1st campaign finance reports. I hope everyone puts those on the top of their reading list.

  8. MP says:

    There is no confidentiality provision but, in practical terms, the settlement agreement hardly gives Keimach free reign to say or do what she wants re the tape. Although this would not be atypical, Keimach has released any claims she has against the City and Councilmembers and received, among other things in return, a release from the City, but not individual Councilmembers. She preserves, however, indemnity rights from the City with respect to claims concerning matters within the course and scope of her employment. “Course and scope” can be a very slippery concept.

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