A “mandate”, is neither a man nor a date, discuss

Big news from yesterday, in addition to the two other lawsuits SunCal has filed against the City of Alameda, there is now a third that was filed in Alameda County Superior Court.  They filed a Writ of Mandate, which essentially is a way for the court (if the plaintiff is successful) to tell the defendant to simply do something that they are supposed to do anyway.

Essentially SunCal contends that the City of Alameda, but specifically Interim City Manager Ann Marie Gallant (note, they spell her name incorrectly, adding an extra “e” to “Ann” throughout the document) has deliberately withheld records that were specifically requested under SunCal’s very extensive Public Records Act request.   And, of course, emails play a huge role in this and, yours truly, makes another cameo appearance much to my own chagrin.

Here is the letter from SunCal to the City letting them know why they are filing although so far it appears that only the writ of mandate has been filed.   But according to the letter they intend to:

…file claims for fraud, interference with contract/prospective economic advantage and defamation against Ms. Gallant and claims for breach of contract, interference with contract/prospective economic advantage and defamation against Alameda. SCC Alameda also intends to seek punitive damages against Ms. Gallant for intentional fraud, tortious interference and defamation.

And later in the letter, they write:

The amount claimed by SCC Alameda is in excess of $100 million; a lawsuit therefore would be classified as an unlimited civil case. The damages include, without limitation, in excess of $17 million for out-of-pocket expenses on the project, and in excess of $100 million in lost profits.

The Petition for Writ of Mandate essentially contends that the City is holding out, document wise.  Specifically:

Respondents have improperly withheld entire categories of emails sent by and to the City Manager of Alameda and other elected officials. To date, Respondents have produced approximately 800 pages of emails that appear to have been printed exclusively from the email accounts of two individuals: Matthew Naclerio, in the Department of Public Works, and Lara Weisiger, the City Clerk. Respondents have not produced any emails from the accounts of Ms. Gallant or the City Council Members. And it is inexcusable that, despite repeated requests from SCC Alameda’s counsel, Respondents refuse to set forth their policy regarding the retention of emails.

In an ironic and karmic twist, SunCal contends that:

…on information and belief, Alameda officials use their personal computers and servers for City communications, and Respondents are withholding and concealing responsive emails and other documents on the basis that they need not produce communications stored on their personal computers. This subterfuge is also contrary to law.

And this is where I get dragged into the mix.   No emails were produced from Ann Marie Gallant or from any Councilmembers email boxes, which, come on, even the most ardent SunCal hater can’t honestly believe that there are no emails from Ann Marie Gallant that exist that were supposed to be disclosed under SunCal’s Public Records Requests.   Because no emails were produced, SunCal is assuming that the City is deliberately withholding or destroying the emails.   And currently, the policy for email retention, according to City Attorney Teresa Highsmith, is that they destroy emails after 30 days.  And so, this post with the quoted passage from Teresa Highsmith’s email to me, gets included in this petition.

According to the declaration of one of SunCal’s lawyers which includes correspondence between the City Attorney’s office and SunCal, the City Attorney Teresa Highsmith claims:

…none of the documents responsive to your Public Records Act request is being or will be deleted Or destroyed. The City is cognizant of its obligations to preserve responsive documents and has taken all necessary steps to make sure that responsive documents are not being deleted or destroyed. This is true notwithstanding anything you may have read or heard from other sources about the City’s email practices.

To which I say: hey lady, I didn’t misrepresent what you wrote.   When I asked for emails, ALL emails mind you, the response I got was this:

The City has two e-mail systems: one is called Alameda Access, which was created to facilitate electronic communication between the community and City officials (employees and electeds, alike); every email within the Alameda Access is public record and is stored in off-site servers operated by the consultant who manages this program. The City Clerk has the ability to check the emails by “sender” and has determined that there have been no emails sent by any member of the City Council, including the Mayor, within the last 6 months.

The City’s other email system is the internal Groupwise system, and each Councilmember (including the Mayor) does has a City email address. Unlike the off-site Alameda Access system, the City of Alameda does not have the server space to retain the emails. Accordingly, the emails within the City’s Groupwise system are systematically and automatically purged by IT every 30 days; therefore, they are considered “drafts” and are exempt from disclosure pursuant to Govt. Code Section 6254(a).

That was the City Attorney’s official response to my Public Records Request.   The source of the information about the “City’s email practices” came from the City Attorney herself.    There are no backsies when you claim that is the policy to a member of the public.

Frank Roesch has been assigned as the Judge for this case.   Interestingly, this is the same Judge who the City of Alameda asked to have replaced when ruling on the arbitration issue between the City and the Firefighters, we’ll see if the City asks for a different judge this time around as well.   The case number is: RG10537988