Playing the Trump card

A heads up to the Alameda voters who made Marilyn Ezzy Ashcraft mayor and put John Knox White and Tony Daysog on Council:  Watch carefully how the politicians you voted for handle the fallout from the Alameda County Civil Grand Jury report finding that Council members Jim Oddie and Malia Vella violated the City Charter.

In response to the Grand Jury’s determination that Mr. Oddie and Ms. Vella had illegally pressured then City Manager Jill Keimach to give the fire chief’s job to the candidate selected by the Alameda firefighters’ union, the two Council members have taken what the East Bay Times recently – and correctly – described as a Trumpian approach.  Neither has “acknowledge[d] error” or “show[n] contrition.”  Indeed, as the Times noted, Ms. Vella has “double[d] down on her claim of innocence, lashing out at the grand jury investigation and falsely claiming the findings show a former city manager’s allegations against her were ‘baseless.’”

But Mr. Oddie and Ms. Vella were speaking for themselves, not for the City or for Council.  And in the upcoming weeks, that body will confront two issues arising from the Grand Jury report:  how to respond formally to the Grand Jurors’ findings and recommendations, and whether to pay the attorneys’ fees incurred by Mr. Oddie and Ms. Vella in their unsuccessful effort to refute the charges of misconduct brought by Ms. Keimach and more than 40 of their fellow Alameda citizens.

The Merry-Go-Round would like to believe that, in deciding these issues, the recently elected Mayor and Council members will be guided solely by their judgment about the best interests of the City as a whole.  Unfortunately, as to the first issue, City staff has given them an opportunity (if they choose to take it) to assist Mr. Oddie and Ms. Vella in their “No collusion! No obstruction!” campaign.  And, as to the second, Council members Knox White and Daysog already have proven willing to spend taxpayer money to pay off a claimant – former firefighters’ union president Jeff DelBono, the same guy who tried to dictate the appointment of the fire chief – without any apparent regard to the merits (or lack thereof) of his case; they might be tempted to do it again.

The Grand Jury report contains four findings and four recommendations.  The key finding is this:

Finding 19-4:

In violation of the city’s charter they had sworn to uphold, two councilmembers [i.e., Mr. Oddie and Ms. Vella] did interfere with the city manager’s ability to conduct an open and transparent recruitment for a new fire chief.

Under the state Penal Code, both Council and the Mayor are required to “comment” on the Grand Jury’s findings and recommendations to the Presiding Judge of the Alameda County Superior Court.  Further, the Code requires that, as to each Grand Jury finding, the responding entity or person shall state either that the respondent “agrees with the finding” or that the respondent “disagrees wholly or partially with the finding.”  In the latter case, the response “shall specify the portion of the finding that is disputed and shall include an explanation of the reasons therefor.”

For the July 16 Council meeting, staff prepared a draft letter to be sent to the Presiding Judge.  For none of the findings – including the one quoted above – does the letter simply state that Council and/or the Mayor “agree” with the finding.  Instead, the letter provides two “options” for a response, one “agreeing” and the other “partially disagreeing” with the finding.  For the finding of a Charter violation, both suggested responses seem designed to undercut the Grand Jury’s unequivocal conclusion that both Mr. Oddie and Ms. Vella are guilty of misconduct.

“Option 1” begins by stating, “Response: Agree.”  In a such a case, the Penal Code does not invite any elaboration, but the draft letter goes on to add two full sentences:

While the City of Alameda agrees with this finding, it is important to point out that the City’s independent investigator concluded that one Council Member, not two, violated the City Charter. Additionally, the City further recognizes the grand jury’s conclusion that the conduct at issue, even if violative of the City Charter, does not rise to the level of “willful or corrupt misconduct in office” necessitating removal from Office.

“Option 2” is similar.  Even though it states, “Response: Partially Disagree,” it, too, cites the work performed by Michael Jenkins, the lawyer retained by the City to look into the alleged interference in the process for hiring the fire chief, as if this provides a sufficient “explanation” for the disagreement:

The City of Alameda engaged the law firm of Jenkins & Hogin, LLP to conduct an independent investigation of the alleged conduct at issue. The independent investigation involved interviews with 22 people along with a review of a substantial volume of relevant documents. This investigation concluded that one Council Member, not two, violated the City Charter.

Both of these responses can be used – and will be used – by Ms. Vella’s and Mr. Oddie’s apologists to whitewash the two Council members’ transgressions.  Indeed, staff seems to be modeling the draft letter on the approach to Special Counsel Robert Mueller’s report taken by Attorney General William Barr, who famously skewed his summary in order to minimize the harm to Donald Trump.

Just as Mr. Barr could truthfully say that Mr. Mueller did not find that President Trump had committed a crime, the City’s letter to the Presiding Judge can truthfully state that Mr. Jenkins did not conclude that Ms. Vella had violated the Charter.  What Mr. Jenkins actually stated was:  “[O]n balance, Vella’s conduct fell short of attempting to interfere with Keimach’s performance of her job or attempting to influence the appointment” of the fire chief.  We suppose staff’s characterization is close enough for government work.

But just as Mr. Barr’s exculpatory summary ignored the evidence about the President’s actions that Mr. Mueller detailed in his report, any claim of exoneration for Ms. Vella ignores the crucial evidence about her conduct that Mr. Jenkins had available to him – but decided not to consider – in his own report:  the tape recording of the August 16, 2017, meeting at which Mr. Oddie and Ms. Vella leaned on Ms. Keimach to give the fire-chief job to the candidate picked by the firefighters’ union.

Compare pages 37-39 from the Jenkins report with pages 19-21 from the Grand Jury report and you’ll see the stark difference between what Ms. Vella told Mr. Jenkins happened at the meeting and what the tape showed really took place.

According to Mr. Jenkins, Ms. Vella described the event as a “constructive conversation in which Keimach, at Councilmember Vella’s request, walked them through the selection process, to which Councilmember Vella responded positively.”  In fact, according to the tape heard by the Grand Jury,

The meeting lasted approximately 55 minutes and focused on the city manager’s relationship with the labor leader [ i.e., Mr. DelBono] and why CM1 [i.e., Mr. Oddie] and CM2 [i.e., Ms. Vella] preferred the labor-backed candidate. . . .

Both CM1 and CM2 pressed the city manager over and over to build a closer relationship with the labor leader even though they acknowledged that the leader was difficult to work with. . . .

CM2 stated that the labor-backed candidate understood the budget process, would be good to work with during difficult financial times, and could convince the firefighters to come along on important issues. CM2 felt one other internal candidate would be a total disaster and another internal candidate might be a short timer who was “gonna spike his pension. . . .” When speaking about the poor relationship between the labor leader and the city manager, CM2 stated at one point, “But whatever happened, we need to be on the same page now about what the expectations are, and what’s gonna happen and how we’re gonna move forward and what the process is gonna look like. . .”

 . . .

Both councilmembers also acknowledged that they were very close personal friends with the labor leader. In fact, they drove together to the labor leader’s wedding the weekend before and apparently discussed how they would approach the city manager at the meeting. The councilmembers again hounded the city manager to be in constant contact with the labor leader and repair any trust issues. In fact, CM2 suggested that the city manager “build in an automatic email to him that just says there has been no change today, or whatever.”

. . .

It should be noted that the city manager protested several times during the meeting that she did not appreciate the pressure, yet CM1 and CM2 did not even acknowledge these comments in a meaningful way. . . .

Likewise, just as Mr. Barr could truthfully say that Mr. Mueller did not recommend that the Justice Department seek an indictment of Mr. Trump, the City’s letter to the Presiding Judge can truthfully state that the Grand Jury did not recommend that the District Attorney begin proceedings to remove Mr. Oddie from office.

But just as Mr. Barr distorted the basis for Mr. Mueller’s failure to urge an indictment, the draft letter misrepresents the reasons given by the Grand Jury for its unwillingness to push for further legal action.  The Grand Jury reached no “conclusion,” as the letter suggests, that Mr. Oddie had not engaged in “willful or corrupt misconduct in office.”  What the report actually said was:  “While 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.”  In fact, just as Mr. Mueller felt constrained by the Justice Department policy against indicting a sitting president, the Grand Jury expressed reluctance about “usurping the will of the voters” by issuing a formal Accusation against a Council member whom Alamedans so recently had returned to office.

It’s almost as if the draft letter prepared by staff was intended to set up the argument that Mr. Oddie and Ms. Vella are innocent victims of a – what’s the word, Mr. Trump and Mr. Barr? – witch hunt.  If so, the logical next step would be for the two Council members to demand that the City reimburse them for the attorneys’ fees they have been forced to pay (using funds donated by their union supporters) to fight back against the scurrilous charges leveled against them by “deep state” enemies like Ms. Keimach.

What’s that you say?  They’ve already made that demand?

So they have.

The East Bay Times reported last week that the two Council members, “whose actions a grand jury said have already cost Alameda more than $1 million, are seeking approximately $200,000 from the city for reimbursement of their legal costs as a result of allegations that they violated the city charter over the hiring of a fire chief.”  Mr. Oddie wants $91,187, the Times reported, and Councilwoman Malia Vella is seeking $111,116.

We obtained redacted copies of the invoices submitted by the San Francisco law firms separately representing the two Council members from Assistant City Attorney Alan Cohen to verify these numbers.  As it happens, the figure for Mr. Oddie includes only fees through April 2018; since then, he has been billed for an additional $14,806.86.  In fact, invoices from the Keker law firm dated November 13, 2018, and April 12, 2019, show receipt of two payments totaling $6,832.16 from “City of Alameda, California,” implying  that the City already has paid a portion of his legal fees.

Both Mr. Oddie and Ms. Vella originally submitted their claims against the City for payment of attorneys’ fees on April 17, 2018.  Under the state Tort Claims Act, a public entity against whom a claim is filed has 45 days in which to act.  If it fails or refuses to act within that period, the claim “shall be deemed to have been rejected.”

In this case, Mr. Cohen told us that the City did not respond in writing to either Mr. Oddie’s or Ms. Vella’s claim.  He did not provide – nor did we find – any Council minutes describing any other action taken by Council on either claim.  Accordingly, both are deemed to have been denied.

But that does not end the matter.  Under the Tort Claims Act, Mr. Oddie and Ms. Vella have the right to bring suits seeking orders requiring the City to pay their legal fees.  Moreover – and more likely – they can threaten to file such suits, and then ask Council, in closed session, to “settle” the potential litigation by agreeing to pick up all or part of the tab for their lawyers.

That, in fact, is the strategy employed by Mr. DelBono to obtain a $21,535 payoff from the City in February:  He filed a claim against the City alleging that Ms. Ashcraft and Ms. Keimach had made unspecified “false and malicious accusations” against him.  No judge or jury ever ruled on the truth of these allegations, and, indeed, the case never made it to court.  Instead, in a closed session, Council voted to “settle” the matter for the amount Mr. DelBono said he had paid in attorneys’ fees.  Ms. Ashcraft recused herself, but both newly elected Council members, Mr. Knox White and Mr. Daysog, voted in favor of the “settlement.”

There’s no reason – except for the law and the public interest – for Council not to do the same for Mr. Oddie and Ms. Vella.

Under the Tort Claims Act, a public entity is required to “provide for the defense of any civil action or proceeding brought against” an employee “on account of an act or omission in the scope of his employment” and to pay the employee’s defense costs, including attorneys’ fees, if it fails to provide a defense.  This statute, however, is of no use to Mr. Oddie and Ms. Vella, since it has been interpreted not to “extend to preliminary investigations that do not result in civil judicial proceedings against the employee.”

The Act also gives a public entity discretion, in certain circumstances, to provide a defense for an employee even though it is not required to do so.  For example, the entity is not obligated to defend an employee in an “administrative proceeding,” but it may choose to do so if it finds that two conditions are met:

(a) The administrative proceeding is brought on account of an act or omission in the scope of his employment as an employee of the public entity; and

(b) The public entity determines that such defense would be in the best interests of the public entity and that the employee or former employee acted, or failed to act, in good faith, without actual malice and in the apparent interests of the public entity.

Should Mr. Oddie and/or Mr. Vella follow the DelBono strategy and demand that the City pay their legal bills under threat of litigation, Council will need to decide whether any of these statutes authorizes it to accede to the demand.  The first – but not only – hurdle consists of determining that Mr. Oddie and Ms. Vella were acting “within the scope of their employment” in pressuring Ms. Keimach to give the fire-chief job to the candidate selected by the firefighters’ union despite the Charter prohibition on interference by Council members in the hiring process.  It would seem hard to square such a determination with the findings made by the Grand Jury – however much the City may try to water them down in its letter to the Presiding Judge.

But with this crew anything is possible.  Indeed, we wouldn’t be surprised if Mr. Oddie and Ms. Vella insist on voting on their own demand for legal fees.  After all, as the Grand Jury found, they had no compunction about participating in closed sessions in which the facts and conclusions contained in the original version of the Jenkins report were edited and modified.  (Which raises a question for new City Attorney Yibin Shen:  Do you take the same permissive view of conflicts of interest as your predecessor, Janet Kern?)  In that event, it would take the vote of only one of the three officials elected last November to give Mr. Oddie and Ms. Vella what they want.  And we have a pretty good idea of who they might target for the third vote.

Mr. Knox White, your constituents will be watching.


Grand jury report: Grand jury report

Jenkins report: Final Report – Redacted for release 5-2-18 – OCR (1-30-18); Final Report – Redacted for release 5-2-18 – OCR (errata)

Draft letter to Presiding Judge: 2019-07-16 Ex. 2 to staff report – Draft Letter

Oddie claim & legal bills: Oddie 04-2018 Claim; Oddie Amended Claim; Oddie Post 09-2018 bills_Redacted

Vella claim & legal bills: Vella 04-2018 Claim; Vella Legal Bills

About Robert Sullwold

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

12 Responses to Playing the Trump card

  1. Sooz says:

    Thank you

  2. Tom says:

    “I want to hear the recording of Vella and Oddie with the City Manager!!!!!!”

  3. dave says:

    Let the union pay the bills. It’s a cost of doing business for them. Buying the politicians is just step 1, after that there is ongoing maintenance.

  4. MP says:

    If there is room in the City’s brief written response to the Grand Jury to highlight the differences between the Jenkins and Grand Jury conclusions, there is also room to acknowledge that the Grand Jury listened to the tape and Jenkins did not.

    If councilmembers are participating in settlement discussions regarding their own personal claims for fee reimbursement against the City (a big “if”), what would be the legal basis for doing that in a closed session?

  5. Dorothy Moody says:

    It would appear obvious that the two council member chose to meet with the City Manager together and by doing so, each could support the other’s “recall” of what was said; the tape of the meeting would be the only way the City Manager could accurately prove what actually was said! The Grand Jury has heard the tape; the Council Members have access to it; it is time for Alameda Residents to hear it also! After all, it is our money that they are asking to spend to pay for their attorney’s costs.

  6. Bob says:

    Give me a break……Conflating this with Trump and Barr is quite the stretch.

  7. Paul S Foreman says:

    I agree with your conclusions, but feel the need to comment on the Grand Jury Report.

    The Mueller Report left the question of obstruction of justice unanswered due to his view that it would be inappropriate to reach a conclusion of guilt when no indictment could be filed for at least two years, thus leaving the President without the ability to defend himself in court.

    The Grand Jury had no such ethical constriction. They could have gone forward with formal Accusation proceedings which would have given both Oddie and Vella the opportunity to defend themselves in a public trial and either be vindicated or removed from office. Instead, they did make a finding that both had violated the Charter, but left us without either result.

    The Grand Jury’s argument as to Oddie that a removal from office would have defeated the will of the voters in the 2018 election since many of the facts were known by then is wrong. The Grand Jury Report revealed a great deal of new or more detailed information such as the content of the tape, the manipulation of the performance review, and the ignoring of both the consultant’s and City Attorney’s warning to both Oddie and Vella,

    I cannot identify their reason for not filing an Accusation against Vella other than her behavior did not, in their view, rise to the level of Oddie’s actions. They did clearly find that she violated the Charter and the Charter requires removal from office as the remedy.

    The Grand Jury’s criticism of the City’s failure to properly train councilmembers on this provision of the Charter cannot be applied as an excuse to limit the responsibility of two experienced councilmembers who are lawyers experienced in public sector law and who were advised by both the consultant and the City Attorney.

    The Grand Jury’s criticism of the absence of enforcement provisions in the Charter is ill-founded. State law provides the process through the Civil Grand Jury and a subsequent jury trial, a system that is much more appropriate than having a city contrive its own in house due process and enforcement policy. Thus, the Grand Jury is criticizing the City, while abdicating its own authority!

    • carol says:

      Agreed. Oddie and Vella are experienced politicians, who represent Alameda in other arenas [eg Vella: lead abatement board] Not only is Malia / Mary Hatsume Vella experienced as described above, I believe she is an adjunct professor of ethics at mills College. If anyone should know better, it is her.
      Unfortunately, I think the vast majority of Alameda voters couldn’t care less.

      I am disappointed that Mayor Ashcraft’s letter leads one to believe that the LWV “engaged the community about reviewing the Charter” on this topic. I went to the LWV meeting at Mastick. The Grand Jury findings were explicitly NOT discussed, because the agenda had been printed and speakers scheduled before the GJ report came out. LWV stuck to its agenda.

  8. Steve Gerstle says:

    Right Authoritarians and Left Authoritarians are cut from the same cloth. The cloth is then dyed either red or blue. Left and Right are no longer as important as whether one is Authoritarian or Libertarian. Here is a test to find out:
    My score:
    Economic Left/Right: -6.0
    Social Libertarian/Authoritarian: -8.0

    • dave says:

      Economic Left/Right: 0.63
      Social Libertarian/Authoritarian: -2.82

      Pretty close to the center of the graph, which is no surprise. I have always been a political centrist.

  9. Hold Wrongdoers Accountable says:

    We will most certainly be watching. Thank you for this.

  10. MP says:

    As you pointed out, there are questions about what legal authority the city might rely on to reimburse fees. It seems the reimbursements that have already happened related to the DA investigation and the Grand Jury investigation. Thornton v. California Unemployment Ins. Appeals Bd. (2012) 204 Cal.App.4th 1403, may be relevant as to whether there is a statutory right to reimbursement and may also bear on whether the City had discretionary authority under the Tort Claims Act to reimburse fees related to the matters in question. That may in turn bear on whether the Councilmembers likely to be seeking those fees properly took part in those decisions, including the one to delegate to the City Attorney. See FPPC advice letter A-97-265.

    That FPPC letter took a more permissive view towards participation by individually affected officials in those decisions, relying on political accountability as a check on abuse:

    “Arguably, allowing public officials to take part in decisions about whether they were acting within the scope of their employment increases at least the appearance of conflict of interest. There is some merit to this argument. However, this concern is mitigated by the fact that the decisionmakers remain politically accountable for their actions involving the expenditure of public funds, either to the voters in the case of elected officials like Sandoval, or to their appointing powers in the case of non-elective officials like Biggs.”

    Since we are only learning about this nearly a year later, and after the election, one wonders how significantly political accountability ever figured in the decisions.

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