City already paid $40,000+ in legal fees for Charter violators

For those of our readers who are distressed by the prospect that Council will accede to the demand by the two Council members found to have violated the City Charter, Jim Oddie and Malia Vella, that the City pay the attorneys’ fees for their unsuccessful defense, the Merry-Go-Round has got news for you:

Without any discussion at a public meeting or any vote in open session, the City, with Council’s approval, already has paid a goodly chunk of those fees!

In response to our inquiry, Assistant City Attorney Michael Roush told us Monday that:

  • To date, the City has paid four invoices for attorneys’ fees totaling $14,807 to Keker & Van Nest LLP, the San Francisco law firm representing Mr. Oddie in the investigation by the Alameda County Civil Grand Jury into his interference with the selection of a new fire chief and the review by the Alameda County District Attorney of the audio recording secretly made by then City Manager Jill Keimach of the meeting at which Mr. Oddie and Ms. Vella pressed her to give the job to the candidate picked by their friends at the Alameda firefighters’ union.
  • To date, the City has paid seven invoices for attorneys’ fees totaling $26,928 to Coblentz Patch Duffy & Bass LLP, the San Francisco law firm representing Ms. Vella in the probes by the Grand Jury and the D.A. into her own role in the debacle.

Update: Thursday evening, we received the following email from Mr. Roush:

Mr. Sullwold,  In the information we provided you earlier this week in response to your Public Records Act request, we stated that between October 2018 and May 2019 the City had paid the Coblentz law firm on behalf of Council member Vella $26,928.  That was an error.  The City paid the firm for legal services  only for invoices received between November 2018 and May 2019  and the corrected amount is $17,518.33.  I apologize for the error.

The Alamedans who voiced their objections at the July 16 Council meeting to the idea of  the City paying the legal bills for two Council members who violated the Charter may well be wondering how this came about – and why.  Based on the public record, and on information provided by Mr. Roush, Alan Cohen, and Lisa Cooper of the City Attorney’s office, we can tell you this much:

The investigation into Mr. Oddie’s and Ms. Vella’s actions was prompted by a letter sent to Council by Ms. Keimach in October 2017, alleging that she had been subjected to “intense and unrelenting” pressure to make a former firefighters’ union president Alameda’s next fire chief.  Council decided to hire an outside lawyer, Michael Jenkins, to look into the allegations, and he presented his draft report to Council in January 2018.

Council edited the Jenkins report in closed session – an activity in which the prime subjects of the report, Mr. Oddie and Ms. Vella, both participated.  Then, in April, the two Council members filed claims against the City seeking “reimbursement” (Mr. Oddie) and “indemnification” (Ms. Vella) of the attorneys’ fees incurred for their defense.  The City did not formally respond to either claim.

The day before Mr. Oddie and Ms. Vella filed their claims, Council unanimously voted to “refer” the audio recording made by Ms. Keimach to the District Attorney.  No reason was publicly stated, but apologists for the two Council members had been slinging around accusations that the City Manager had committed a crime by making it.

The Jenkins report was released in May 2018.  Mr. Jenkins, who had chosen not to listen to the recording of the meeting at which Mr. Oddie and Ms. Vella put the arm on Ms. Keimach, concluded that Mr. Oddie had “violated section 7.3 of the Charter by attempting to influence the City Manager’s appointment” of the fire chief.  But he also stated that, “on balance, Vella’s conduct fell short of attempting to interfere with Keimach’s performance of her job or attempting to influence the appointment.”

In July, a new Alameda County Civil Grand Jury began its term.  According to its report issued the following June, the Grand Jury received more than 40 complaints that Mr. Oddie and Ms. Vella had “wrongfully interfered with the duties of the city manager” by “inappropriately attempt[ing] to influence the city manager to hire their desired candidate” for fire chief.  It chose to investigate, and thereafter took testimony from current and former City staff, elected officials and statewide governance experts.

As of September 2018, both the District Attorney and the Grand Jury thus were scrutinizing the fire-chief-hiring scandal.  In that month, according to Ms. Cooper and Mr. Roush, Council “authorized the City Attorney’s Office to determine whether outside legal services for all Council members and City staff in connection with the follow up investigation by the DA’s office and the civil Grand Jury should be paid by the City.”  This direction appears to have been given in closed session by a 3-2 vote, with Mr. Oddie and Ms. Vella voting in favor; then Councilwoman Marilyn Ezzy Ashcraft provided the decisive third vote.

A short time later – the date is unclear from the public record, but Mr. Roush told us it was before his appointment as Interim City Attorney after Janet Kern retired in November 2018 – the City Attorney’s Office informed Council of its opinion that the City could indeed pick up the tab for investigation-related attorneys’ fees.  (We’re paraphrasing.  Mr. Roush declined – quite properly – to reveal the precise advice given by the City Attorney’s office to Council.)  The public record does not disclose any further action by Council on the issue.

Mr. Roush is not bound – indeed, he may be precluded – from explaining to us, or to the public, the legal basis for the conclusion reached by his office.  Nevertheless, when we asked why the City Attorney had decided that Council members implicated in the investigations were entitled to have the City pay their legal bills, he provided the following response (which we quote in full):

Consistent with the Council’s authorization to reasonably pay and delegation of responsibility to determine whether outside legal services for all Council members and City staff in connection with investigations by the DA’s office and the civil Grand Jury, the City Attorney’s Office reviewed legal bills submitted and authorized  payments consistent with Council Direction.

Since Mr. Roush responded graciously to all of the questions we asked about the fee issues, we’re reluctant to criticize his prose.  Suffice it to say, Benjamin Cardozo or Oliver Wendell Holmes he is not.

In any event, no Council member other than Mr. Oddie and Ms. Vella ever demanded that the City pay the member’s attorneys’ fees.  (According to Mr. Roush, “No other Councilmembers were asked to respond to questions etc. from the DA’s office or the civil Grand Jury so the City was not asked to pay any legal bills for any other Councilmembers.”)  Nor did any City staff member interviewed by the D.A. or the Grand Jury – and we don’t know either entity’s witness list – request payment of legal fees.  (Of the $945,000 paid by the City to Ms. Keimach to settle her potential claim against the City for wrongful termination, $125,000 was designated for her attorneys.)

But Mr. Oddie and Ms. Vella had their lawyers send their monthly bills to the City.  And the City cut the checks.

According to Ms. Cooper and Mr. Roush and the documents provided by Mr. Cohen, the Keker firm representing Mr. Oddie submitted, and the City paid, the following invoices:

Invoice Date Amount
10/16/18 $1,020.00
11/13/18 $3,506.25
03/22/19 $5,812.16
04/12/19 $4,468.45

Likewise, the Coblentz firm representing Ms. Vella submitted, and the City paid, the following invoices:

Invoice Date Amount
10/11/18 $6,882.50
11/15/18 $6,969.50
02/12/19    $840.00
02/12/19 $1,680.00
03/19/19 $2,848.83
04/11/19 $6,020.00
05/09/19 $1,689.00

Update: Thursday evening, we received the following email from Mr. Roush:

Mr. Sullwold,  In the information we provided you earlier this week in response to your Public Records Act request, we stated that between October 2018 and May 2019 the City had paid the Coblentz law firm on behalf of Council member Vella $26,928.  That was an error.  The City paid the firm for legal services  only for invoices received between November 2018 and May 2019  and the corrected amount is $17,518.33.  I apologize for the error.

Note well the dates.  It was the prior Council that authorized the payments in the first instance.  But it is the current Council that has allowed the payments to continue since taking office in December 2018.  Both Mr. Oddie and Ms. Vella – as well as Ms. Ashcraft – sat on both bodies.  And no newly elected Council member can plead ignorance of the payments:  Mr. Roush told us that he gave the current Council a confidential memo in February 2019 describing the authorization by its predecessor.

Mr. Roush also told us that Ms. Kern approved the invoices submitted by Mr. Oddie’s and Ms. Vella’s attorneys until her retirement at the end of November 2018.  Thereafter, Mr. Roush approved the bills in his role as Interim City Attorney.  (Mr. Cohen approved one invoice from Mr. Oddie’s lawyers that apparently was submitted before Mr. Roush’s appointment).

The decisions ultimately reached by the District Attorney and the Grand Jury, of course, were not favorable to Mr. Oddie or Ms. Vella.

The District Attorney found that Ms. Keimach had committed no crime.  Under California law, the D.A. wrote, “surreptitious recording of a confidential communication is permitted for the purpose of obtaining evidence reasonably believed to relate to the commission of certain criminal conduct by another party to the communication,” and Ms. Keimach was acting in such a reasonable belief, the D.A. found, when she recorded her meeting with Mr. Oddie and Ms. Vella.

Likewise, the Grand Jury found that both Council members violated the Charter.  Their interference in the fire-chief hiring process, the Grand Jurors wrote, “ultimately cost the city over a million dollars in investigations, legal fees and an employee separation settlement”; “cost Alameda a city manager, a city attorney, and contributed to several other senior staff leaving the city for new opportunities”; and “damaged public trust in government at a time when such trust is so important.”

And yet . . . the two Council members who violated the Charter have ended up paying none of the defense costs arising from the official investigations into their misconduct.

We won’t get into the legal issue of whether the City Attorney was correct in opining that the City could pay the attorneys’ fees incurred by Mr. Oddie and Ms. Vella before the investigations had concluded and a decision on culpability had been made.  (As we discussed in a previous column, we have our doubts about the statutory authority for indemnification in these circumstances).  Nor have we researched the related legal issue of whether there is any basis for “clawing back” the payments previously made now that the two Council members have been found to have violated the Charter.  But we can fully understand why an ordinary citizen might be appalled that Mr. Oddie and Ms. Vella successfully got the City to pay their legal bills month after month as they awaited what turned out to be adverse findings by the Grand Jury and the D.A.

And the matter isn’t over.  The invoices paid by the City to date cover services rendered beginning in September 2018.  But both Mr. Oddie and Ms. Vella have submitted bills going back to October 2017.  Will they have the . . . chutzpah to demand payment of those bills as well?  And if they do, how will the three other Council members – Mayor Ashcraft, Vice Mayor John Knox White, and Councilman Tony Daysog – respond?  Those Alamedans whose blood is boiling already may be in for even more aggravation.

Sources:

Investigations: Final Report – Redacted for release 5-2-18 – OCR (1-30-18); Final Report – Redacted for release 5-2-18 – OCR (errata); Alameda City Manager Report.docx; Grand jury report

Closed-session announcements: 2018-04-16 CS Announcement; 2018-09-18 Closed Session Announcement

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

Vella legal bills: Vella Legal Bills

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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14 Responses to City already paid $40,000+ in legal fees for Charter violators

  1. A. Petrich says:

    Thank you for the update. BTW, I read Mr. Roush’s statement three times. I have no idea what he is trying to say. And I’m a lawyer.

  2. dave says:

    Even in a city hall already rife with corruption (IAFF owning the council may be legal but it’s also damned corrupt), this is absolutely infuriating to read.

    It will take two more elections to do it, but this entire council needs to be tossed out on their collective asses.

  3. Matthatter says:

    Very frustrating situation! Thanks for keeping an eye on it for us all, RS.

  4. Paul Foreman says:

    The first part of your piece says that Council in a 3-2 vote asked the City Attorney if the bills “should” be paid, in the next paragraph you paraphrase the City Attorney as responding that the bills “could” be paid. Did the City Attorney advise Council that the bills were legally required to be paid or that Council had the discretion of paying or rejecting them? If it is the former, Council cannot be faulted from following the advice of their City Attorney. If it was the later, they should all be drummed out of office.
    Even if the advice was that the bills were legally required to be paid, there is no evidence of a vote to authorize payment. Wouldn’t such a vote be required and wouldn’t it have to be done at a public meeting? What law allows this to be done in private and without any disclosure of the vote?

    • After your comment, I contacted Mr. Roush to see if he would be willing to clarify the point you raise (which is a legitimate one). Citing the attorney-client privilege, he declined to elaborate about the legal advice the City Attorney gave to Council. I, too, would like to know exactly what that advice was, but I can’t argue with his assertion of the privilege in this instance.

    • MP says:

      “In that month [Sept. 2018], according to Ms. Cooper and Mr. Roush, Council “authorized the City Attorney’s Office to determine whether outside legal services for all Council members and City staff in connection with the follow up investigation by the DA’s office and the civil Grand Jury should be paid by the City.””

      “In that month” and “according to Ms. Cooper and Mr. Roush” suggests you couldn’t tell from the public agendas. I guess it would be this one from September 18, 2018:

      3-C Closed Session Item CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION Significant exposure to litigation pursuant to subdivisions (d)(2) and e(2) of California Government Code Section 54956.9 relating to the District Attorney’s investigation into the Jill Keimach tape recording Number of cases: One (As Defendant -Exposure to litigation against the City)

      I don’t see anything about the Grand Jury or anything about consideration of funding individual Councilmembers’ legal representation.

      The agenda writers were on a roll at that time. See also the Sunshine Ordinance complaint of Serena Chen’s re improper noticing of a cannabis issue in October 2018 that was unanimously sustained by the Open Gov’t Comm’n.

      But I don’t blame ’em. A lot easier to get things done that way.

      Would be interested to hear what Frank Matarrese has to say about this; not about legal advice, but about what facts were available to the Council.

  5. Steve Gerstle says:

    There is always money to protect their own self interests, but when the safety of others is at risk, this is the reply.
    “Unfortunately, due to limited funding, there is a backlog of these requests and they are being handled in the order of receipt. Due to that backlog, some requests may take six months to a year to complete the analysis and recommendation. Thank you for your patience and understanding.”
    https://seeclickfix.com/web_portal/Gvn1p3WRLo52iziy7HaYwdUc/issues/6379189

  6. MP says:

    Does this mean the City is headed back to the Grand Jury? It was concerned enough about the potential reimbursement of the fees that it suggested adoption of an express rule precluding reimbursement in the case of knowing Charter violations. As of its June 2019 Report, however, it did not seem to understand that substantial fees had already been reimbursed or the means through which that occurred, but rather only that “CM1 and CM2 also hired personal attorneys to represent them and have started the process to obtain reimbursement from the city for those fees.” Hopefully, it was not misled.

  7. MP says:

    1. As pointed out in the last post, public entities have discretion (not the obligation) to reimburse legal fees in connection with administrative proceedings when:
    “(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.” (Gov’t Code 995.6)

    2. As pointed out by the Grand Jury, during “55 minutes of pressure to hire the labor candidate and appease the labor leader,” CM1 says, “……..you’ll have to be able to tell the folks that think you were pressured that you weren’t”. (The Tape)

    3. As the voice of wisdom says, don’t leap to conclusions. Just because someone encourages a subordinate to cover things up, doesn’t always mean they aren’t acting in good faith and in the apparent interests of the public entity.

  8. Steven Ball says:

    I appreciate the research you have done and the details of each of the payments. It is rare to get this level of of illumination on anything the city does.

  9. anonymous says:

    Is it possible that the roughly $40k in payments were made under procedures established by the Council in place in 2018? And that any new request by Vella and Oddie for payments for the outstanding $200,000 in bills would have to be a decision of the Council in place since this past January?

  10. Paul Foreman says:

    The post closed meeting public announcement of the 3-2 vote identifies the matter voted upon as simply, “direction to staff”. All we know to inform us of the “direction” voted upon is the information you gleaned from Mr. Roush which, while giving us hints, still hides the “direction” from sight. However, I think that when one puts the facts that we know together, the gist of the “direction” is revealed.

    Since you found no other public record of Council action, their authorization to the City Attorney to pay the bills was necessarily the 3-2 vote of Sept. 18,2018. I think we can also infer that the gist of the “direction” to Staff was to research the issue of whether these bills could be paid, and, if so, to authorize the City Attorney to pay them. My inference is based on two factors.

    First is your article the previous week that told us that the Tort Claims Act does not require payment of defense costs in an administrative proceeding such as the Grand Jury, but gives Council discretion to do so if 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.”

    Based on your research, this is the only issue concerning the payment of these fees that needed a legal opinion.

    The second factor supporting my inference is that if the “direction to staff” was whether the fees were LEGALLY REQUIRED to be paid rather than COULD be paid at the discretion of Council, I cannot conceive of Ms. Spencer or Mr. Matarrese voting in the negative. They are both devoted to the rule of law and would never block a determination of such an issue.

    However, there had to have been yet another action taken at the closed meeting of Sept. 18, 2018. The written justification for the closed session was “anticipated litigation”. The Sunshine Law allows full disclosure of actions taken at closed meetings concerning anticipated litigation so long as they do not violate other State or Federal laws and do not prejudice the City’s legal position. Thus it is, Council who approved the framing of the wording of the post meeting announcement in the obtuse form of “direction to staff”. What Impact would it have had on the November, 2018 City election if your article had been published before, not after the election? We will never know. Our national election of 2016 demonstrated the danger of fake news. Our 2018 City election instructs us on the danger of withholding what should be widespread public information.

    The inappropriateness of Mr. Oddie and Ms. Vella voting on these matters, regardless of whether it is or is not patently illegal, is obvious and consistent with their participation in the editing of the Jenkins Report, already condemned by the Grand Jury. We had no reason to expect that they would recuse themselves.

    However, Mayor Ashcraft’s vote is the one that cries out for explanation. She owes it to every citizen of this City, and especially to those who worked and voted for her election as to why she would support the discretionary payment of these fees and the withholding of this action from the public. She can do this without violating the confidentiality of the closed session by simply justifying her action.

    Of course, my inferences are my opinions and may be wrong. I invite the reader, and especially Mayor Ashcraft, to challenge them on these pages.

  11. dave says:

    Of course, my inferences are my opinions and may be wrong. I invite the reader, and especially Mayor Ashcraft, to challenge them on these pages.

    —–
    Buena suerte.

  12. MP says:

    The District Attorney’s report fills in the timeline a bit:

    “On March 9, 2018, the City Council voted unanimously to place Ms. Keimach on paid administrative leave. Subsequently, on April 16, 2018, the Alameda City Council voted unanimously in closed session to instruct the City Attorney to refer the subject audio recording to the Alameda County District Attorney.

    A copy of the recording was provided by the Alameda City Attorney’s Office to the District Attorney’s Office on April 17, 2018. Witness interviews began on April 19, 2018, and concluded on October 9, 2018. The investigation consisted of interviews and a review of the recording itself, city emails and calendars, the Jenkins & Hogin report, media reports, and several public records from City Council meetings… The notes and recordings of the interviews conducted by Mr. Jenkins were requested as part of our investigation, but were not provided by the City.

    An interview of City Attorney Janet Kern was scheduled for April 30 and then rescheduled for May 9 through Alameda’s outside counsel, Thomas Mayhew of Farella Braun + Martell, LLP.

    In June, Rod Gould and former Assistant City Attorney Andrico Penick were interviewed. Although the investigation continued and additional evidence was collected, scheduling issues prevented further interviews from occurring until late September 2018.
    ….
    Attempts to schedule interviews of Councilmembers Vella and Oddie began in early September 2018. These interviews were also delayed several weeks initially for the city to determine legal representation and then to organize the schedules of the Councilmembers Oddie and Vella and their respective attorneys. In neither instance was there any indication the delay in the interviews of Ms. Keimach, Councilmember Vella or Councilmember Oddie was intended to evade or hinder the investigation and is noted only to document the timing in issuing our conclusion.”

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