Even as Alamedans awaited the results of an independent investigation into the efforts by Councilman Jim Oddie and Vice Mayor Malia Vella to get City Manager Jill Keimach to give the fire chief’s job to a former firefighters’ union president, the two Council members and their apologists took a page out of the Trump playbook.
To distract attention from the Councilmembers’ own alleged violation of the City Charter, the Oddie-Vella P.R. team seized upon Ms. Keimach’s disclosure that she had audio-recorded a meeting on August 16, 2017, with the two politicos without their knowledge or consent. This, they said, was the real offense. Ms. Keimach, the Council members’ publicist (a non-lawyer) proclaimed, had acted “unlawfully.” Indeed, he suggested, Ms. Keimach was a serial offender: State Assemblyman Rob Bonta and Alameda firefighters’ union president Jeff DelBono “suspected” or “believed” that Ms. Keimach had illegally recorded them, too! One could almost hear the chants of “Lock her up!” wafting down Clement Avenue.
Now, the Alameda County District Attorney has blown that strategy to smithereens.
At a closed session on April 16, Council voted to refer the accusations against Ms. Keimach to D.A. Nancy O’Malley. (Notably, neither Mr. Oddie nor Ms. Vella recused themselves when the vote was taken.) The D.A.’s office investigated for six months, and its report was issued last Friday. The bottom line: “[W]e conclude that, based on the available evidence, there is insufficient evidence to prove a criminal violation of California state law beyond a reasonable doubt.” And the rationale: Ms. Keimach recorded her conversation with Mr. Oddie and Ms. Vella for the purpose of obtaining evidence she “reasonably believed” related to the commission by the two Council members of the crimes of bribery or extortion.
The D.A.’s lawyerly conclusion may not sound like an “exoneration” – although, not surprisingly, Ms. Keimach’s attorney, in a press release, describes it that way – but it’s the most Ms. Keimach (or anyone else) could expect from the D.A., whose job is to determine whether an alleged crime can be proven to a jury, not to restore an accused’s besmirched reputation. (As the report puts it, a “prosecutor may only file criminal charges if he or she believes, based on the evidence available after a thorough investigation, that the accused is in fact guilty of a crime and that guilt can be proven beyond a reasonable doubt at trial.”)
Indeed, the D.A.’s decision back in 2010 not to charge former Councilwoman Lena Tam with a violation of the Brown Act was framed in precisely the same way: There was “insufficient evidence,” the D.A. found, to prove any criminal wrongdoing. (Ms. Tam, like Ms. Keimach’s attorneys, characterized the conclusion as an “exoneration.”)
The D.A.’s report disposes of one of the claims made by or on behalf of the two Council members, but it does not close the book on l’affaire Oddie et Vella. The evidence does not support charging either Mr. Oddie or Ms. Vella with bribery or extortion, the report states. Nevertheless, the “question of whether Councilmember Oddie or others violated the Alameda City Charter or issues related to poor governance surrounding the Fire Chief hiring process has already been referred to the Alameda County Grand Jury.” The grand jury, the report notes, has “the authority to start an accusation process which could ultimately lead to a public official’s removal from office in certain circumstances involving willful or corrupt misconduct.”
Ever since the existence of the recording was leaked to the East Bay Express – all of the relevant Council discussions had occurred in closed session – Ms. Keimach’s attorneys have pointed out that the statute making it a misdemeanor to record a conversation without the knowledge or consent of all parties does not prohibit one party from recording a conversation “for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person. . . . ” Ms. Keimach, her attorneys argued, qualified for this exemption because she had been motivated by just such a belief when she recorded her meeting with Mr. Oddie and Ms. Vella – and her belief was reasonable under the circumstances.
The D.A.’s office agreed with this statement of the applicable law, and, having reviewed the evidence – which included interviews of 15 witnesses, including Assemblyman Bonta and IAFF Local 689 president DelBono, both of whom had refused to talk to the investigator hired by the City – it came to the same conclusion about the facts.
As a “backdrop,” the report noted, the recording had been made after Ms. Keimach began an “open recruitment process” to select a new fire chief, only to find herself the target of a “campaign” orchestrated by the firefighters’ union to give the job to the former union president, Domenick Weaver. “Ms. Keimach felt pressured by these efforts,” the D.A.’s office found, “which included soliciting support from members of the City Council.” Police Chief Paul Rolleri then informed Ms. Keimach that Mr. Oddie had told him Ms. Keimach would be fired unless she selected Capt. Weaver as fire chief.
Against this backdrop, Mr. Oddie and Ms. Vella scheduled a meeting with Ms. Keimach for August 16. According to the D.A.’s report, the City Manager “believed that Councilmembers Vella and Oddie would pressure her to select a certain candidate during the scheduled August 16 meeting, and that such pressure could potentially amount to bribery or extortion.”
This belief, the D.A.’s office found, was “not unreasonable.” The statutory exemption thus applied, and it was “supported here by the fact that the meeting, which occurred after Councilmember Oddie’s comments [that he had the votes to fire Ms. Keimach unless she chose the firefighters’ union’s candidate] were relayed to Ms. Keimach, was in fact about the selection of the next Fire Chief, that both Councilmembers recommended a particular candidate, and that the Councilmembers expressed concern of a breakdown in the relationship between the City Manager’s Office and the Alameda Fire Department and referenced former City Managers who had toxic relationships.”
Moreover, the report went on, “[s]everal post-meeting circumstances” corroborated Ms. Keimach’s version of events. She stated that she contemporaneously had discussed the recording with three City staffers – Police Chief Rolleri, Assistant City Manager Liz Warmerdam, and Public Information Officer Sarah Henry – and with Alameda School Board member Jennifer Williams. All four confirmed that these conversations in fact took place. In addition, it was Ms. Keimach herself who revealed the existence of the recording to the City’s investigator. “While not dispositive,” the D.A.’s report states, this fact “does support that Ms. Keimach actually believed she could record the meeting.”
And what about those other “illegal” recordings exposed by the East Bay Express? Apparently, they never happened.
The D.A.’s investigation found that Ms. Keimach “unintentionally recorded a non-confidential conversation” with Lois Butler, an economic development manager for the City. But that was it. And the D.A.’s office accepted Ms. Butler’s statement that she believed the “conversation occurred by happenstance” and Ms. Keimach’s explanation that the recording was an “accidental misuse of the recording app on her cellphone.”
If either Assemblyman Bonta or Capt. DelBono – or the East Bay Express – had any evidence to support their insinuations of criminal wrongdoing, they must have kept it secret from the D.A., for the report never even hints at any such proof.
Our readers can read the entire report by clicking on the link below. In addition to the conclusions it reaches about Ms. Keimach’s lack of criminal liability, the report is noteworthy for its observations about the veracity of several City officials.
One is Mr. Oddie.
The Councilman consistently has denied Chief Rolleri’s account of the conversation in which Mr. Oddie threatened to get Ms. Keimach fired unless she played ball. Here’s what the report says about that: “Specifically, and most notably, our investigation confirmed that Ms. Keimach was informed by Police Chief Rolleri that Councilmember Oddie had told him directly that unless she hired the right person as Fire Chief, that there were two votes to fire Ms. Keimach and that they would get the third vote.” Moreover, the “circumstances that existed before the August 16 meeting surrounding the selection of the Fire Chief support both Chief Rolleri’s and Ms. Keimach’s assumptions that the right person to whom Councilmember Oddie was referring was Captain Weaver and that the two votes were Councilmembers Oddie and Vella.”
The other City officials who don’t come off particularly well are City Attorney Janet Kern and Assistant City Attorney Alan Cohen.
The D.A.’s report states that it had “obtained conflicting statements” from Ms. Keimach and the two lawyers about whether, before the meeting requested by Mr. Oddie and Ms. Vella, Ms. Keimach had “sought and received” approval from Ms. Kern to record the conversation, and whether, after the meeting, Mr. Cohen had “confirmed” to Ms. Keimach that she was “authorized to record under the Penal Code.”
Both Ms. Kern and Mr. Cohen told the D.A.’s office that Ms. Kern told Ms. Keimach that recording would be a “bad idea.” Ms. Kern then added the remarkable statement that she never would have okayed the recording because “she was not knowledgeable of the applicable law.” Both Ms. Kern and Mr. Cohen “declined to discuss” with the D.A.’s office any post-meeting communications with Ms. Keimach.
The D.A.’s report then offers this observation:
What is not disputed is that Ms. Keimach expressed her intention to record the August 16 meeting to at least one member of the City Attorney’s Office prior to the meeting. Additionally, our investigation confirmed that the City Attorney’s Office did not advise Councilmember Vella or Oddie of Ms. Keimach’s intention to record their meeting or make efforts to prevent the meeting.
We’ll let our readers draw their own conclusions.
One final point: Since April, a host of Alamedans have clamored for Council to release the recording made by Ms. Keimach of the August 16 meeting with Mr. Oddie and Ms. Vella. In response, we’ve read comments – usually by non-lawyers – to the effect that, since the recording was “illegal,” releasing it would compound the crime. That argument never held much weight as a matter of law, and the D.A.’s report now has destroyed its premise.
So how about it, Councilmembers? Release the tape so Alameda voters can hear it before the polls open on November 6.
Report by Alameda County District Attorney: Alameda City Manager Report.docx