Councilwoman Malia Vella and her backers would like Alamedans to believe that her unsuccessful defense against the charge that she illegally sought to influence the selection of a new fire chief has forced her to pay thousands of dollars in legal fees out of her own pocket.
But it isn’t so: her re-election campaign committee, using primarily contributions from organized labor, and the City of Alameda, taking money out of the General Fund, already have paid about $60,000 of the $110,000 in legal bills Ms. Vella racked up through April. How much, if any, of her own funds she has spent for her defense is unknown.
And next Tuesday, it appears, Ms. Vella will ask her colleagues on Council to get the City to pick up whatever balance remains owing to her lawyers and to reimburse her re-election campaign committee (and, perhaps, herself) for amounts previously paid.
Such a result would be disappointing to, among others, the Alameda County Civil Grand Jury, which found that her actions violated the City Charter and recommended 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.” Nevertheless, Ms. Vella now potentially has a shot at obtaining the votes she needs to get her legal fees paid – thanks to her long-time ally, Councilman Jim Oddie.
Under the Charter, three affirmative votes are required for Council to take action. Until last month, a unanimous vote by the three Council members who weren’t tainted by the fire-chief scandal – Mayor Marilyn Ezzy Ashcraft, Vice Mayor John Knox White, and Councilman Tony Daysog – would have been needed to pay off Ms. Vella. Since it’s highly unlikely that Mr. Daysog would have voted yes, the motion would have failed.
But Mr. Oddie announced on August 13 that he was withdrawing his own request for reimbursement of legal fees. We suspect that he now will argue that, having renounced his claim, he no longer is seeking any payment himself from the City and therefore is not subject to a disqualifying conflict-of-interest in voting on Ms. Vella’s request.
This argument surely would have persuaded former City Attorney Janet Kern. We don’t know what her successor, City Attorney Yibin Shen, will say, but it’s entirely possible he’ll come to the same conclusion.
In which case, Mr. Daysog’s expected no vote won’t matter: with Mr. Oddie presumably on board, Ms. Vella need only to convince the Mayor and Vice Mayor to “do the right thing” (to quote the words Mr. Oddie used when telling Police Chief Paul Rolleri that former City Manager Jill Keimach should give the fire chief’s job to the candidate picked by the Alameda firefighters’ union). And if the two Councilmembers have any doubt about what the “right” thing is, the firefighters’ union, which endorsed and financially supported Mr. Knox White in 2018 and Ms. Ashcraft in two prior Council campaigns, won’t be shy about letting them know.
The Merry-Go-Round would dearly love to be in the room when Council discusses Ms. Vella’s claim next Tuesday, especially to hear what Ms. Ashcraft and Mr. Knox White have to say. But the item has been placed on the closed session agenda, and the public is barred from attending. (Moreover, Assistant City Attorney Michael Roush denied our request for copies of written or emailed communications from Ms. Vella or her attorneys regarding her claim, so we don’t know whether the legal theories and monetary demands have changed since she filed the original claim in April 2018.)
Nevertheless, from reading Ms. Vella’s own statements, as well as the blogs and magazine articles written by her apologists, we have a pretty good idea of the arguments likely to be thrown out to try to justify payment by the City of Ms. Vella’s legal bills. So, today we’ll go through them, one-by-one, and show why no one should be fooled.
But first a word on how we got the numbers at the top of the piece:
- The fire-chief scandal broke on October 12, 2017, with publication of an article in the East Bay Times reporting that Ms. Keimach had sent a letter to the entire Council alleging that she had been “approached by elected and appointed officials in Alameda and even at the State level, requesting that I put aside the best interests of the City and select the Fire Chief that has been handpicked by the local IAFF union.”
- Although Ms. Keimach’s letter did not identify any of the state or local officials by name, on the same day the East Bay Times article appeared, Ms. Vella (or someone acting on her behalf) contacted a lawyer named Rees F. Morgan of the politically well-connected San Francisco law firm of Coblentz Patch Duffy & Bass LLP about “assisting” her in the defense against the interference charge. (This is our inference; the bills are redacted, but the first item is dated October 12, 2017, and what else could its subject have been?)
- The Coblentz firmed billed Ms. Vella a total of $111,130.41 for its services from October 2017 through April 2019.
- Although Ms. Vella will not be up for re-election until November 2020, she formed a “Malia Vella for Alameda City Council 2020” campaign committee in February 2017 and began accepting donations. During the last half of 2017 and the first half of 2018, the committee received $30,250 in cash contributions from unions or other labor organizations. During the same period, it made three payments to the Coblentz firm totaling $42,000.
- According to Assistant City Attorney Roush, the City of Alameda paid invoices totaling $17,518.33 received between November 2018 and May 2019 from the Coblentz firm for legal services provided to Ms. Vella.
Now to the merits.
At the outset, we should make clear that the City is not legally obligated to pay Ms. Vella’s legal bills simply because she was a sitting Council member when she lobbied Ms. Keimach to appoint the union-picked candidate. The lawyers without law degrees in her camp may insist otherwise, but they would be wrong as a matter of law.
The relevant state statute provides: “[U]pon request of an employee or former employee, a public entity shall provide for the defense of any civil action or proceeding brought against him, in his official or individual capacity or both, on account of an act or omission in the scope of his employment.” An accompanying statute states that, if the public entity fails or refuses to provide a defense and the employer retains private counsel, she is entitled to recover her defense costs, including attorneys’ fees, from the public entity.
But these statutes create no entitlement for Ms. Vella. For one thing, it is questionable that the Councilwoman could satisfy the statutory “scope of employment” requirement. That phrase often is broadly interpreted, but in this case Ms. Vella’s lobbying was in fact contrary to a Council member’s duty, imposed by the Charter itself, not to “interfere with the execution by the City Manager of his or her powers and duties as an employee of the public entity” (which, by Charter, include appointing subordinate officers like the fire chief). As such, her conduct fell outside the scope of her Charter-prescribed official responsibilities.
More importantly, the California Court of Appeal has held that the statutes entitling a public employee to a defense or reimbursement of legal fees are “limited to the defense of civil judicial proceedings against the employee.” They do not encompass the fees for legal representation in an “investigation” by a law-enforcement agency. Thus, the Court ruled that the State was not required to pay the legal fees incurred by a state auditor in connection with probes by the Attorney General and the District Attorney into whether his hiring violated state conflict-of-interest law.
Neither the investigation of the fire-chief scandal by Michael Jenkins, the attorney hired by Council, nor the subsequent inquiry by the Grand Jury, constitutes a “civil judicial proceeding.” Accordingly, a judge would summarily dismiss any suit by Ms. Vella alleging that the City was legally obligated to pay her legal fees for either investigation.
Three other Government Code sections describe circumstances in which a public entity “may, but is not required to” pay defense costs. The only one of three even arguably applicable here – relating to “administrative proceedings” – requires findings that “(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.” Even if Ms. Vella could persuade Council that these requirements are met, the decision to pay her legal fees remains discretionary, not mandatory.
As far as we can tell, Ms. Vella’s defenders have made four arguments why Council, in the exercise of whatever discretion it has, should vote to authorize payment by the City of her legal bills. We address each in turn.
- The City should pay Ms. Vella’s legal bills because a comprehensive investigation by the attorney hired by Council “cleared” Ms. Vella of any wrongdoing.
We’ve read this contention more often than we care to count. But it isn’t true.
In the first place, as a private attorney Mr. Jenkins had no power to issue subpoenas to compel any percipient witness to talk to him, much less to testify under oath, and, in fact, his report reveals that at least two key witnesses refused to be interviewed: then-IAFF Local 689 president Jeff DelBono, who orchestrated the campaign to get the union-picked candidate (who happened to be his predecessor as IAFF Local 689 president) appointed fire chief, and Assemblyman Rob Bonta, who told Ms. Keimach that the union’s candidate was the “correct choice” for the job and that, if she didn’t appoint him, sales-tax-exemption legislation benefiting Alameda was unlikely to pass.
More crucially, Mr. Jenkins declined to listen to a tape recording secretly made by Ms. Keimach of her August 16, 2017, meeting with Ms. Vella and Mr. Oddie at which the fire-chief appointment was discussed. According to his report, Mr. Jenkins was concerned that the recording had been done illegally (a claim later trumpeted, over and over, by Ms. Vella’s and Mr. Oddie’s apologists). His concern turned out to have been misplaced, for the Alameda County District Attorney, after analyzing the facts at Council’s request, determined that Ms. Keimach had done nothing illegal.
We don’t mean to criticize Mr. Jenkins’ work product too harshly: the Manhattan Beach-based attorney did his job within the limits he placed on himself and others placed on him. But was his report the result of a “more thorough investigation” than the Grand Jury’s, as the East Bay Citizen asserted, or “far more complete than the report by the grand jury,” as Ms. Vella herself recently stated? Not by a long shot.
Nor is the Jenkins’ report quite the whitewash Ms. Vella’s defenders would have one believe. “Vella did not give sufficient consideration to how Keimach would react to her attempt to influence the selection, especially under the totality of circumstances,” Mr. Jenkins wrote in his conclusion about Ms. Vella. “She should have been more aware that Keimach would be intimidated by and react adversely to her expressions of opinion even if her concerns were, as she described them, focused on process and not outcome.” Nevertheless, “on balance, Vella’s conduct fell short of attempting to interfere with Keimach’s performance of her job or attempting to influence the appointment.” (Emphasis added.)
So did Mr. Jenkins truly exonerate Ms. Vella, as she says he did? Sure, in the same sense Robert Mueller exonerated Donald Trump. No obstruction! No collusion!
- The City should pay Ms. Vella’s legal fees because the Alameda County Civil Grand Jury was biased against her.
We have to admit: We find this argument more than just a little bit offensive.
It’s been out there ever since the Grand Jury released its report. The “news article” posted on the East Bay Citizen on June 24 gratuitously pointed out that “the makeup of this year’s grand jury is decidedly older and Caucasian.” A subsequent post described the Grand Jury as consisting of “possibly 17 of 19 Caucasian seniors,” including “four older Alamedans,” but neither piece explained how the author (Steve Tavares) managed to discern the race and age of the Grand Jury members. (Perhaps, like a cop, Mr. Tavares possesses the skill of determining such things merely by looking at a group photograph.)
But at least this was a somewhat subtle slam. More recently, in another article by Mr. Tavares, this time in Alameda Magazine, Ms. Vella herself abandoned any pretense of politesse. “I’m always held to an unattainable standard to a small minority in Alameda and the media,” she is quoted as saying. “They need to do a big look in the mirror and ask, ‘Why am I being blamed for something another white Protestant male did?’” she said.
Now, of course, Ms. Vella didn’t out-and-out accuse her detractors of being racists. But what other inference did she want her supporters to draw from her comments?
One other aspect of the attack by Ms. Vella and her supporters is worth noting.
Back in 2017, the City Attorney hired a consultant named Rod Gould to assist Council with performance evaluations of top city management, including the city manager. Mr. Gould resigned before completing his work. The Jenkins report disclosed the retention and resignation, but it did not say why Mr. Gould had quit. But the Grand Jury report did: Council delayed providing Ms. Keimach with her performance review, which “the consultant [Mr. Gould] saw . . . as an effort by at least two councilmembers [Ms. Vella and Mr. Oddie] to hold the evaluation over the city manager until the fire chief position was filled.”
Lo and behold, Mr. Vella and her apologists immediately began taking shots at Mr. Gould, whom they’d never attacked in the preceding months. The Grand Jury’s “reliance” on the consultant was “troubling,” Ms. Vella stated after the report was released. The East Bay Citizen immediately echoed her comments, chastising the Grand Jurors for “curiously prais[ing]” Mr. Gould’s “judgment” even though he “allegedly violated the city [of Santa Monica]’s anti-corruption laws in 2015 when he took a job with a consulting firm and allegedly signed contracts for the company while still serving as city manager.” (Neither Ms. Vella nor the blogger chose to disclose that the suit by a self-described citizens’ watchdog group making those allegations had been settled without any admission of wrongdoing.)
Again, the Trumpian analogy comes to mind: If you can’t rebut the facts, attack the integrity of anyone who testifies about them.
- The City should pay Ms. Vella’s legal bills because she in fact did nothing wrong.
Ms. Vella has gotten increasingly bolder about making this argument. The day the Grand Jury report finding that she had violated the Charter was released, she issued a statement that left us shaking our heads. “Today,” she stated, “another independent review of events put in motion by former City Manager Jill Keimach show[s] that her allegations against me were baseless.” More recently, she was quoted by Mr. Tavares in Alameda Magazine as saying, “All I did is attend a meeting with Jim and the city manager.”
Ah, but what a meeting.
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.
It is impossible to read that description without concluding that Ms. Vella in fact did attempt to influence the selection of the new fire chief at the behest of her union supporters despite the Charter provision prohibiting such conduct. When Ms. Vella told Mr. Jenkins that she “recalled merely wanting to talk with Keimach about the process for hiring the Fire Chief because she had been getting some complaints suggesting that Keimach was not conducting a fair process” and “wanted to clear the air,” she wasn’t telling the . . . whole story.
What’s more, the Grand Jury concluded that the complaints asserted by Ms. Vella (and Mr. Oddie) about Ms. Keimach’s handling of the selection process were “either inaccurate or irrelevant.” Instead, the “real issue” for both Council members “appears to be the city manager’s unwillingness to select the labor-backed candidate outright.”
And that wasn’t all Ms. Vella did. As we noted earlier, the Grand Jury reported Mr. Gould’s conclusion that Ms. Vella had collaborated with Mr. Oddie to delay Ms. Keimach’s performance review in “an effort by at least two councilmembers . . . to hold the evaluation over the city manager until the fire chief position was filled.” As the Grand Jurors put it, “It is quite telling 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.”
Moreover, Ms. Vella, as well as Mr. Oddie, took part in the closed-session meetings at which Council massaged the Jenkins report. “Not only were they present in the meeting to accept the report, but the councilmembers and city attorney participated in editing facts leading to conclusions,” the Grand Jury report stated. “This included clarifications, corrections and even deletions.” As “subjects of the investigation,” both Ms. Vella and Mr. Oddie “should never have participated in helping to edit the report before it was released to the public,” the Grand Jurors concluded.
Now let us draw an important distinction. The conduct in which Ms. Vella engaged probably goes on all the time in Washington and in state capitols across the country. For example, we fully expect that the Koch brothers decide which potential nominee for Secretary of Energy will best promote their agenda, then tell the elected officials whose campaigns they finance to make sure their guy gets the job. And the politicos usually are shrewd enough to stick to offering friendly advice rather than making threats.
This behavior may strike some as sleazy, but there’s nothing in the Constitution or any federal law that prohibits it. But there is such a prohibition in the Alameda City Charter: “An attempt by a Councilmember to influence the City Manager in the making of any appointment or the purchase of any materials or supplies shall subject such Councilmember to removal from office for malfeasance.” That’s the law, and – need we say it – no elected official is above the law. Not Donald Trump – and not Malia Vella either.
- The City should pay Ms. Vella’s legal bills because, if it does not, well-qualified candidates would be deterred from running for office.
Ms. Vella’s apologists have made this argument repeatedly, and now the Councilwoman herself has picked it up. Paraphrasing Ms. Vella, the recent Alameda Magazine article stated that she believed that “[t]he message that the city will not defend elected officials from complaints made against them while in the line of duty sends a chilling message to residents who may mull a run for elected office in Alameda.” It then quoted her directly: “The fact that it could cost you in excess of six-figures if you get sued while doing your job creates a terrible standard for the city.”
Viewed in isolation, this argument seems reasonable. But Ms. Vella in fact was not acting “in the line of duty” or “doing [her] job” when she tried to strong-arm Ms. Keimach into appointing the candidate for fire chief being pushed by her union supporters. Instead, she was doing just the opposite: Outside of the few IAFF Local 689 members who live and vote in Alameda, Ms. Vella’s constituents didn’t elect her to do the union’s bidding; they elected her to serve the public interest.
For our part, we would not be displeased at sending the message to potential Council candidates that, if they violate the Charter and get caught, the City won’t pick up the tab for their defense. Indeed, that message might even deter a few sycophants from running. If you aren’t willing to pay the bill, don’t become a shill.
Moreover, we would support a rule that Council should exercise its discretion to pay defense costs only on behalf of those who have not been found guilty of the charges against them. Such a rule would protect elected officials from the consequences of unpopular, or even erroneous, decisions. But it would not protect politicians from the wages of sin. And why should it?
Simply put, there is no legitimate case to be made for the City paying any of Ms. Vella’s legal bills. Alas, that’s no guarantee that Council won’t do it anyway.
Grand jury report: Grand jury report
Vella legal bills: Vella Legal Bills
The campaign finance reports filed by Ms. Vella are available at https://www.southtechhosting.com/AlamedaCity/CampaignDocsWebRetrieval/Search/SearchByFilerName.aspx
Thornton v. California Unemployment Ins. Appeals Bd., 204 Cal.App.4th 1403 (2012): Thornton v. California Unemployment Ins. Appeals Bd._ 2