The Grand Jury speaks; will Alamedans listen?

The report by the Alameda County Civil Grand Jury is out, and its conclusion is unequivocal:  Not only did the Alameda firefighters’ union and its president, Jeff DelBono, engage in “unethical” conduct in endeavoring to get their hand-picked candidate made fire chief, both Councilman Jim Oddie and Councilwoman Malia Vella violated the City Charter by attempting to coerce then City Manager Jill Keimach to go along.

“The external pressure exerted during the fire chief hiring process and the resulting actions by two councilmembers represented the very conduct that good government advocates were trying to eliminate when city charter amendments preventing council interference began to pop up throughout the nation,” the report concludes. “Cronyism and backroom deals are corrosive and can destroy the public’s trust in the fair administration of government.”

The Merry-Go-Round urges its readers to read the entire 19-page report – there is a link below – but the executive summary tells Alameda voters what they need to know (or should have known when they voted in last November’s Council election) about those who call the tune (or think they do) at City Hall:

In 2017 the city of Alameda faced a vacancy at the department head level, a common occurrence for most organizations. Few could have predicted the pandemonium that would unfold after Alameda’s city manager at the time started a recruitment to replace the retiring fire chief. What should have been an internal, administrative decision by the city manager based on a professional recruitment and interview process turned into a full-scale political battle. Unrelenting pressure by the city’s firefighter labor organization in support of its internal candidate resulted in pressure on the city council to inappropriately intervene in the process.

The Alameda City Charter is filled with rules and principles to help ensure the effective and honest administration of government. This document plainly prohibits the city council from interfering in the hiring process or trying to influence the city manager. The prohibition, common in municipal charters throughout the nation, is intended to combat cronyism and corrupt government decisions.

In the case of Alameda, two members of the city council violated the city charter. They took steps at the behest of a labor organization to push for its candidate by privately meeting with the city manager and pressing the issue. They also appeared to use the city manager’s performance review as leverage in the matter. One councilmember went further by making an indirect threat to the city manager’s job to a member of the city manager’s leadership team. This same councilmember also wrote a letter using city letterhead openly advocating for the labor-backed candidate. These actions put the city manager in a very awkward position, creating a reasonable belief that her job was on the line if the labor-backed candidate was not selected. As a result, she took steps to publicly protest the inappropriate interference in the process. The city manager also surreptitiously recorded a conversation she had with the two councilmembers out of fear of additional threats.

The interference in the Alameda fire chief hiring process ultimately cost the city over a million dollars in investigations, legal fees and an employee separation settlement. While stability and continuity in leadership are often keys to success of a government, this malfeasance cost Alameda a city manager, a city attorney, and contributed to several other senior staff leaving the city for new opportunities. Finally, this interference damaged public trust in government at a time when such trust is so important.

The Grand Jury report states that it is based on testimony from current and former City staff, elected officials, and statewide “governance experts”; review of Council agendas, minutes, and videos; and examination of emails, calendars, “and other documents related to the fire chief hiring process.”  In addition, the Grand Jurors listened to the recorded conversation between Ms. Keimach, Mr. Oddie, and Ms. Vella that the City has refused to make public.

The report begins by noting that, after Ms. Keimach announced an “open recruitment” process to replace retiring Fire Chief Doug Long, the “president of the local firefighters’ organization” – Mr. DelBono – “let the city manager know in April that his organization would be backing a specific internal candidate,” now known to be Domenick Weaver, Mr. DelBono’s immediate predecessor as IAFF Local 689 president.  These “lobbying efforts continued throughout the entire hiring process.”   (In its conclusion, the report states that, “while the labor organization had every right to lobby for their candidate, it was unethical to lobby councilmembers to intervene and influence the city manager when the city’s governing document expressly prohibited such council interference.”)

The report then enumerates the “key events” that led the Grand Jury to conclude that Council members Oddie and Vella had violated the Charter and caused “lasting damage” to the City:

• Oddie’s threat to fire the City Manager

The report first describes the conversation between Mr. Oddie – whom the report refers to as “CM1” – and Police Chief Paul Rolleri when the Councilman accompanied the Chief to neighborhood meetings for “National Night Out” on August 1, 2017:

At the end of the night, CM1 brought up with the police chief the issue of the fire chief hiring process. The conversation led the police chief to acknowledge that the labor candidate had a steep hill to climb, because he lacked a college degree and command experience. CM1 responded that the city manager better “do the right thing”; if not, there were already two councilmembers ready to fire her.

Had Mr. Oddie made this statement directly to Ms. Keimach, “it would be difficult to interpret it as anything other than a threat to the city manager’s job and as pressure to select CM1’s candidate, who also happened to be the labor union’s choice,” the report states. “Such pressure would be a direct violation of the city charter’s provision preventing councilmembers from trying to influence the city manager during the hiring process.”

But even though Mr. Oddie did not threaten Ms. Keimach directly, the report states, “it is impractical to have expected the police chief to keep these provocative comments private.”  And the evidence shows that Chief Rolleri did in fact relay them to Ms. Keimach.

What about Mr. Oddie’s repeated denials that he made the statements attributed to him by Chief Rolleri?  “After thorough investigation,” the report states, “the Grand Jury does not find these denials credible.”  Chief Rolleri “had no apparent motive to fabricate this
story,” it says.  “Considering CM1’s [i.e., Mr. Oddie’s] strong preference for the labor-backed candidate, close relationship with the Alameda fire labor leader, and the fact that CM1 was supported in reelection efforts by the labor group, the police chief’s version of the conversation is more credible.”

Having found that Mr. Oddie made the threat, the Grand Jury then condemned his conduct regardless of intent:

If the allegation were true, it is unclear whether CM1 made the statement expecting that it would be passed on to the city manager as a threat or he just did not have the capacity or good judgement to withhold his opinion to someone so close to the city manager. If intended to pressure the city manager in the hiring process, it was unethical. If just a spontaneous declaration of CM1’s feelings, it displayed bad judgement and a poor understanding of good governance. . . .  Relaying a threat to fire the city manager to one of her subordinates is absolutely inexcusable.

• The meeting between Mr. Oddie, Ms. Vella, and Ms. Keimach

The so-called “independent investigator” hired by the City, Michael Jenkins, did not listen to the recording made by Ms. Keimach of her meeting with Mr. Oddie and Ms. Vella in which, she alleged, the two Council members tried to twist her arm.  But the Grand Jurors did.  Notably, their report does not condemn, or even criticize, Ms. Keimach for recording the meeting.  Rather, it accepts her explanation that she was “so concerned about the ongoing pressure regarding the hiring process and threats to her employment that she decided to covertly record the conversation.”

According to the report, Mr. Oddie and Ms. Vella (whom the report refers to as “CM2”) made an appointment to meet privately with Ms. Keimach on August 16.  At the 55-minute meeting, “[w]hile the councilmembers were careful not to make any direct threats, their message was clear,” the report states. “They supported the labor-backed candidate and pressed the city manager on that point. They appeared to be doing the labor leader’s bidding although they claimed the meeting was their idea.”

Mr. Oddie “parroted” the claims made by the firefighters’ union president, Mr. DelBono, against Ms. Keimach and her staff, the report states.  Ms. Vella endorsed the union’s pick, Mr. Weaver, as someone who “could convince the firefighters to come along on important issues” and trashed the two other current firefighters who had applied for the job.

What’s more, both Mr. Oddie and Ms. Vella “pressed the city manager over and over to build a closer relationship with the labor leader [i.e., Mr. DelBono],”  “appeared to be demanding that the city manager give the labor leader daily access and input into the hiring process,” and “hounded the city manager to be in constant contact with the labor leader.”  In fact, the report states, “CM2 [i.e., Ms. Vella] suggested that the city manager ‘build in an automatic email to him that just says there has been no change today, or whatever.’”

The meeting ended with Mr. Oddie saying, “”And just to be clear. . . I know I didn’t tell you who to hire, and I don’t think [CM2] did either, so just to be clear [laughs loudly].” These “joking words,” the Grand Jury concluded, “were intended to erase 55 minutes of pressure to hire the labor candidate and appease the labor leader. . . .  If the charter section is intended to prevent back room discussions and give the public confidence that the hiring process was fair and open, these discussions seemed to violate that intention.”

• Oddie’s “letter of recommendation”

The report next describes Mr. Oddie’s letter of July 31, 2017, to Ms. Keimach, offering “strong support” for the union-backed candidate, as a “clear attempt to influence the city manager.”

According to the report, Mr. Oddie “acknowledged” during his meeting with Ms. Vella and Ms. Keimach that the firefighters’ union had asked him to write the letter and even provided him with “talking points.”  The letter, the Grand Jury concluded, “was a direct and very public violation of the charter provision prohibiting councilmembers from attempting to influence the city manager in making an appointment.”

• The performance review

The report furnishes previously undisclosed details about what it calls the “unethical misuse of the performance review process” by Council members Oddie and Vella.

City Attorney Janet Kern had hired a consultant to “facilitate” performance evaluations of top City management.  When the consultant interviewed Mr. Oddie and Ms. Vella about Ms. Keimach, “it became evident that selection of the fire chief was an issue of interest” for both of them.  “It was clear that CM1 [i.e., Mr. Oddie] supported a specific candidate and tried to connect the issue to the city manager’s evaluation,” the report states. “CM2 [i.e., Ms. Vella] also brought up the fire chief selection process and inquired about how to communicate with the city manager.”

On August 24, before Ms. Keimach had received her performance review, Ms. Kern wrote a memo to the entire Council reminding them of the Charter prohibition against interfering in the hiring process.  One unnamed Council member regarded the memo as “helpful,” the report states, but Mr. Oddie “had a very different reaction,” telling Ms. Kern that her memo was “disturbing and inappropriate” and accusing her of “participating in interference and intimidation of the council regarding the city manager’s review.”

The report continues:

It appears CM1 [i.e., Mr. Oddie] understood that the consultant was uncomfortable with councilmember involvement in the fire chief hiring process. His response struck a tone of outrage and was certainly defensive. CM1 felt strongly that he had a right to bring up what he described as a “legitimate performance-related matter” which included the city manager. In short, it appeared he was openly disregarding the city charter and using the performance review process as leverage.

Rather than using the evaluation process as a tool to communicate expectations, goals and priorities, it appeared that the process was being hijacked to accomplish individual councilmembers’ goals of installing their preferred candidate for fire chief. It is ironic that CM1 described the city attorney’s informative, non-threatening email reminding council about their roles during the hiring process as interference and intimidation while denying that any of his conduct rose to the level of trying to influence the city manager.

It is also worth noting that the report contains a sort of performance review of its own for Ms. Keimach.  The Grand Jury concluded that the complaints made by Mr. Oddie and Ms. Vella about Ms. Keimach’s handling of the hiring process “were either inaccurate or irrelevant.”  Except for the union and its allies, “Grand Jury witnesses were generally complimentary of the professionalism and thoroughness of the fire chief hiring process,” the report states.  Moreover, her “interaction with council during the fire chief hiring process and the decision to choose a candidate not supported by the firefighter’s labor leader were attempts to stand on principle.”

Indeed, the report levels nary a word of criticism at Ms. Keimach – a far cry from the calumny directed at her by, among others, “the fire labor leader’s wife,” at a public Council meeting.

• The consultant’s resignation

After “significant consternation and attempts by CM1 [i.e., Mr. Oddie] to delay”  the closed-session meeting to present Ms. Keimach with her performance review, the report states, it finally was scheduled for September 19.  But “the meeting did not go as the consultant had planned.”  Instead, Ms. Keimach’s review “was put off for ambiguous reasons.”

The consultant had had enough.  Viewing the decision to defer Ms. Keimach’s review as “an effort by at least two councilmembers to hold the evaluation over the city manager until the fire chief position was filled,” the report states, the consultant terminated his firm’s contract prior to completion of any of the reviews.  “It is quite telling,” the Grand Jury comments, “that an outside consultant with years of city management experience terminated his contract with the city, foregoing full payment for his future services, because he did not want to participate in an unethical misuse of the performance review process.”

Thereafter, Ms. Keimach ended up appointing Edmond Rodriguez as fire chief and writing a letter to Council reporting the pressure exerted by Mr. Oddie and Ms. Vella to give the fire chief’s job to the union-picked candidate.  But the story told by the Grand Jury does not end there.  The report also describes how Mr. Oddie and Ms. Vella attempted to control the work product prepared by Mr. Jenkins, the supposedly “independent” investigator hired by the City.

As we (and others) noted – with dismay – at the time, Mr. Oddie and Ms. Vella – who were, as the Grand Jury puts it, “subjects of the investigation” – took part in the closed-session Council meetings held to discuss the 70-page report drafted by Mr. Jenkins.  According to the Grand Jury, the two Council members “participated in editing facts leading to conclusions,” including “clarifications, corrections and deletions.”  Mr. Jenkins then prepared a second, much shorter version of the report.  This version, the Grand Jury states, “comes to similar conclusions but appears to be much less critical of the two councilmembers” than the original report.

By taking part in these meetings in which the Jenkins report was “edited or modified,” Mr. Oddie and Ms. Vella “damaged” its status as the product of an “independent” investigation.  “The subjects of the investigation should never have participated in helping to edit the report before it was released to the public,” the Grand Jury states.  And it dismisses, as sophistry, the argument, made at the time, that Mr. Oddie and Ms. Vella were entitled to participate because Ms. Keimach’s letter did not mention them by name.

The Grand Jury report ends with two sections.

The first describes the costs to the City resulting from Mr. Oddie’s and Ms. Vella’s misconduct, including the more than a million dollars spent on legal fees to outside counsel and the severance payment to Ms. Keimach, plus the “loss of multiple talented and hard to replace” senior staff, many of whom left, witnesses told the Grand Jury, “at least in part because of the fire chief recruitment incident.”  It also notes that the two Council members have sought reimbursement from the City for their own legal fees (which were paid with contributions from their union supporters) but recommends that Council “adopt a policy stating that councilmembers who knowingly violate ethical codes of conduct or charter provisions may not seek reimbursement for related legal representation.”

The second section rejects the argument, made by Mr. Oddie’s attorneys and apologists, that his conduct was protected by the First Amendment, which “supersedes” the Charter.  The Grand Jury notes that, after a “thorough” and “thoughtful” examination of the relevant case law, Mr. Jenkins “validated” the Charter provision prohibiting interference in the hiring process and concluded that “[s]peech by a councilmember that directly interferes with the authority vested in the city manager is well within this category of unprotected expression.”  The Grand Jury “agrees with this reasoning.”

Thus far, we have attempted to keep our own editorial comments to a minimum.  (And, boy, does our tongue hurt.)  But we do want to address one issue that Mr. Oddie’s and Ms. Vella’s defenders undoubtedly will raise in response to the report – and, indeed, already have raised, even without having actually read it.

At the end of its report, the Grand Jury notes that it “has the authority to issue a formal Accusation” to begin the procedure for removing an elected official from office.  “Such authority,” it says, “comes with great responsibility,” and, in this case, “[w]hile the Grand Jury believes that the conduct described in this report did, in fact, violate the city charter, it also believes it does not warrant moving forward with formal Accusation proceedings.”

But pay close attention to the reasoning the Grand Jurors give for that decision.  If the Grand Jury recommended removal proceedings, the report states, “it would be usurping the will of the voters. . . .”  Mr. Oddie, who “committed more significant violations of the charter,” ran for re-election just last November, and “most of the facts laid out in this report were available to the voters.”  Nevertheless, he managed to finish third and ended up retaining his Council seat anyway.  Removing him from office so soon after the election, the Grand Jurors appear to believe, would amount to the sort of undemocratic action they decry.

We understand the argument.  In fact, it’s the same argument that many Republicans – and a few Democrats – are making for not impeaching Donald Trump:  “The voters knew he was a scoundrel but they elected him anyway!  We can’t overrule them by throwing him out.”  If Mr. Oddie’s allies need any help making this pitch, they should just call Mitch McConnell.

Source:

“Alameda City Council Interference”:  Grand jury report