Let the sun shine in

For months, the Alameda City Council didn’t tell the public anything about the efforts by two of its members, Malia Vella and Jim Oddie, to get the City to pay the bills rendered by the law firms they retained to defend them against the charge – later sustained by the Alameda County Civil Grand Jury – that they had violated the City Charter by attempting to influence the selection of the next fire chief.

As a result, when Alameda voters went to the polls in November 2018, they didn’t know that Ms. Vella and Mr. Oddie, who was then running for re-election, had asked Council in April to authorize paying their legal bills for representation by outside counsel in the “administrative investigation” that resulted in a finding that Mr. Oddie had violated the Charter.  Nor did they know that, by a 3-0 vote, Council had rejected that demand.

Likewise, when the voters went to the polls, they didn’t know that, by a 3-to-2 vote (with Mr. Oddie, Ms. Vella, and Councilwoman Marilyn Ezzy Ashcraft, who was then running for mayor, in the majority), Council had directed staff to determine whether the City legally could pay the attorneys’ fees incurred by City officials, including Mr. Oddie and Ms. Vella, in connection with the investigation into the fire-chief scandal by the District Attorney and the Grand Jury.  Or that the City in fact began paying Mr. Oddie’s and Ms. Vella’s legal bills beginning with the invoices for services rendered in September 2018.

It is, of course, impossible to say whether this information would have made any difference in the outcome of the election.  But we do note that Mr. Oddie came in third, only 605 votes ahead of Robert Matz, who was making his first bid for public office.  We can’t help but wonder whether any Oddie voter might have changed her mind upon learning that the Councilman tried twice to stick the City with the tab for his unsuccessful defense against the accusations of official misconduct– and that his colleagues turned him down the first time.  And perhaps it wouldn’t be only the most punctilious of voters who’d want to know why Mr. Oddie, having previously recused himself on the vote that rejected his original request, stayed in the room and cast a vote in favor when he made another request at a subsequent meeting.

It is fortuitous that information about the two Council members’ efforts to get their lawyers paid with public funds has come to light even now.  All of the Council decisions were made in closed sessions from which the public was excluded.  The agendas did not reveal that Council would be considering the requests by Mr. Oddie and Ms. Vella, and the subsequent “public announcements” of Council’s actions were vague at best and misleading at worst.  Indeed, Alamedans now know as much – or as little – as they do only because of disclosures made long after the fact:  one by the City Attorney’s office in response to an inquiry by the Merry-Go-Round last July, and another by Mayor Marilyn Ezzy Ashcraft in her “report out” after the November 5 closed session at which Council rejected Ms. Vella’s latest demand.

This shouldn’t have happened.

As our regular readers know, we’re not big fans of certain provisions of the Brown Act, but we heartily endorse its basic premise:  The public’s business ought to be conducted in public.  As the statute itself says up front, “It is the intent of the law that [the] actions [of legislative bodies] be taken openly and that their deliberations be conducted openly.”

The requests by Mr. Oddie and Ms. Vella for payment of their legal bills with public funds manifestly were the public’s business.  By making the requests, the two Council members were asking their colleagues to spend taxpayer money for their personal benefit.  When (if ever) is it proper for Council to authorize such an expenditure?  Ms. Vella herself has argued that, if the City didn’t pay a Council member’s legal bills in these circumstances, qualified candidates would be deterred from running for office.  But she made that argument in an interview in the pages of Alameda Magazine; she should have made it from the dais in Council chambers during a public meeting.

We can’t, of course, change what happened in the past.  But today we’ll suggest two rules that would make it less likely it will happen again in the future.  The one we’d prefer is this:  Whenever a Council member requests that Council use public funds to pay expenses incurred by the member for her own benefit, the City Attorney may provide legal advice to Council in a closed session, but the Council members must discuss (and vote upon) the request at an open meeting.

This rule is necessary because Council’s relegation of the Oddie/Vella fee requests to closed session reflects a misapplication of the so-called “litigation exception” to the Brown Act.

That exception permits a legislative body to hold a closed session to discuss “anticipated” litigation.  Such a situation arises when a “point has been reached where, in the opinion of the legislative body . . . on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the” city.  But the statute stipulates that the “facts and circumstances” required to trigger the exception “shall consist only” of one of four specified scenarios.  One is receipt of a claim under the Tort Claims Act.  Another is “facts and circumstances, including, but not limited to, an accident, disaster, incident, or transactional occurrence that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs, which facts or circumstances shall be publicly stated on the agenda or announced.”  (Neither of the other two scenarios is even arguably relevant to the present discussion.)

The requests by Mr. Oddie and Ms. Vella for payment of their legal bills with public funds didn’t meet the statutory standards for convening a secret meeting.  Neither Mr. Oddie nor Ms. Vella had filed a claim against the City when Council held its closed session on
April 16, 2018.  And no claims were pending when Council held its closed session on September 18, 2018 – the claims filed on April 17, 2018, had been denied by operation of law.

Likewise, the requests were not based on any “accident, disaster, incident, or transactional occurrence.”  A slip-and-fall on a city sidewalk might fit into this category, but it is hard to imagine what specific underlying event Mr. Oddie or Ms. Vella could cite as giving rise to a potential claim.  In any event, the statute requires that the relevant “facts and circumstances shall be publicly stated on the agenda or announced.”  Since that wasn’t done, the exception didn’t apply.

By contrast, our proposed rule would be entirely consistent with both the purpose and language of the Brown Act.  As the Brown Act treatise published by the League of California Cities states, “[T]he most common purposes of the closed session provisions of the Brown Act are to avoid revealing confidential information (e.g., prejudicing the city’s position in litigation or compromising the privacy interest of employees).”   Under our proposed rule, the advice provided by the City Attorney would remain confidential.  But Council members no longer would be able, once they’ve heard that advice, to deliberate and decide behind closed doors.

Realists that we are, we must admit that there’s no guarantee that the new City Attorney, Yibin Shen, will interpret the Brown Act differently than his predecessor, Janet Kern, did or that the current Council will be any less eager than the prior Council was to make decisions in secret.  So we’ll offer an alternative rule:  If Council does hold a closed session to consider a request by a member to use public funds to pay expenses incurred by the member for her own benefit, the agenda for the closed session should state that the member has made such a request and the “mayor’s announcement” after the closed session should describe, in detail, the action taken (or not taken) in response to it.

This rule is necessary because Council’s disclosures about the Oddie/Vella fee requests, both before and after the closed sessions, were woefully inadequate.  Sunlight may be the best disinfectant, but it doesn’t work very well when the politicians throw a cloak over it.

The published agenda for the council meeting on April 16, 2018, contained the following item:

3-A 2018-5425 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 allegations made in City Manager Jill Keimach’s October 2, 2017 letter. Number of cases:  Three (As Defendant – City Exposure to Legal Action)

Nothing about any request for payment of legal fees.

The “Mayor’s Closed Session Announcement” made after the meeting by Mayor Trish Spencer stated that Council convened in closed session at 5:01 p.m., took a recess at 8:49 p.m., and reconvened at 8:57 p.m.  Then, at 10:32 p.m., “Councilmembers Oddie and Vella left the meeting”; they “returned” at 10:4x p.m.  (The announcement is no longer available on the City website; the bottom line is partially cut off on the copy we previously made.)  The closed session continued until the meeting was adjourned at 10:55 p.m.

What happened during the eight-plus minutes Mr. Oddie and Ms. Vella were absent?  The announcement disclosed only that “With three present, Council voted to give direction to staff,” and that the vote was unanimous.  But what “direction” did Council give?  The announcement didn’t say.

In fact, thanks to the “report out” by Ms. Ashcraft after the November 5 meeting, we now know that the “direction to staff” was to reject, by a 3-to-0 vote (Mr. Oddie and Ms. Vella having recused themselves), Ms. Vella’s request that the City pay her legal bills for the Jenkins investigation.  (Because both Mr. Oddie and Ms. Vella filed claims against the City the next day, we are assuming that Mr. Oddie also made – and Council denied – a similar request during the April 16, 2018, closed session for payment of his legal bills).

We see no reason why the information provided by Mayor Ashcraft on November 5, 2019, should not have been disclosed by Mayor Spencer on April 16, 2018.  Under our proposed rule, it would be.

The published agenda for the September 18, 2018, meeting contained the following item:

3-C 2018-5953 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)

Again, nothing about payment of legal fees.

The “mayor’s announcement” made after the meeting by Mayor Spencer revealed that Council had taken a vote in which all five Council members participated.  The tally was 3-to-2, with Mr. Oddie, Ms. Vella, and Ms. Ashcraft in favor and Mayor Spencer and Councilman Frank Matarrese against.  But what did Council vote to do?  According to the “mayor’s announcement,” it was “Direction to Staff.”  (Those magic words again!)  And what was the direction?  The announcement didn’t say.

The public still doesn’t know exactly what happened at the September 18, 2018, closed session, but our readers are aware of part of the story.  In response to our inquiries last July, the Merry-Go-Round learned from Assistant City Attorney Michael Roush that:

  • In September 2018, 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”;
  • By the time Mr. Roush had been appointed Interim City Attorney in December 2018, Council had approved paying Mr. Oddie’s and Ms. Vella’s legal bills with public funds (and no other elected official or staff member had sought or received a similar subsidy), and
  • Beginning with the invoices for services rendered in September 2018, the City in fact paid $14,807 to Mr. Oddie’s lawyers and $17,518.33 to Ms. Vella’s counsel.

The closed session on September 18, 2018, was the only meeting during the last four months of 2018 at which the fallout from the fire-chief scandal was on the agenda.  So this may have been the meeting at which Council asked the City Attorney to analyze the legal issues raised by Mr. Oddie’s and Ms. Vella’s request that the City pay their legal bills.  Indeed, that seems the likeliest conclusion – but it’s also possible that this was the meeting at which, having received the City Attorney’s analysis, Council approved paying those bills.

There is nothing in the public record that clarifies the issue, and Mr. Roush was reluctant to give us any more details.  (Apparently, however, he did provide them to the current Council in a February 2019 memo.)  But we know of no reason why the public ought not to be told the whole story – or why it wasn’t told the whole story at the time the decisions were made.  Under our proposed rule, it would be.

At the risk of sounding optimistic, we hold out some hope for a favorable reception to our suggestions.  The “report out” appended to the “mayor’s announcement” of the
November 5 closed session represents a step in the right direction.  It certainly tells the public more about what Council discussed and decided than did the announcements for the closed sessions on April 16, 2018, and September 18, 2018.  If Council continues to hold closed sessions, reports like this should become standard practice.

Let us end by challenging Mayor Ashcraft to go even further in the direction of what we’ve been calling “disclosure” and the politicians call “transparency.”

If you look at the November 5 announcement, you’ll see that Council actually took two votes on the items listed in the closed-session agenda.  The “report out” disclosed what happened in one of them:  Council voted, 3-to-0, to deny Ms. Vella’s request for payment of attorneys’ fees.  But another vote had been taken before that one.  The tally was 1-to-2, with Vice Mayor John Knox White in favor and Mayor Ashcraft and Councilman Tony Daysog against.

What was this vote all about?  What did Mr. Knox White want to do?  Why?  And why did Ms. Ashcraft and Mr. Daysog oppose him?  Ms. Ashcraft didn’t answer these questions in her “report out.”  Maybe she’ll be willing to do so now.  What do you say, Madam Mayor?


April 16, 2018 closed-session announcement: 2018-04-16 CS Announcement

September 18, 2018 closed-session announcement: 2018-09-18 Closed Session Announcement

November 5, 2019 closed-session announcement: 2019-11-05 Closed Session Announcement

Closed sessions under the Brown Act: Open-Public-2016


About Robert Sullwold

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

1 Response to Let the sun shine in

  1. Bill says:

    It has appeared recently (past few years) that elected officials are far less truthful than they have been in the past. The liberal element of our local government has become a “take” and “lie” group. Vella knew what she was doing from the very beginning, yet she still chose to proceed on a path of wrong doing. Alameda government has become a mess.

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