Blogging Bayport Alameda

May 27, 2011

Rose is a rose is a rose is a rose

As part of Alameda Citizens Task Force’s letter to the City Council urging the City Council to not reimburse Councilmember Lena Tam for her legal expenses incurred during the whole “investigation” at the very end they threw in a zinger, pointing out that:

…it should be emphasized that while the District Attorney’s  Office failed to prosecute Ms. Tam, it did not fully exonerate her of any wrongdoing either.

In light of the recent lawsuit threats and lawsuits brought on by City Attorney Teresa (Terri) Highsmith and Interim City Manager Ann Marie Gallant.   I find the rhetoric that surrounds these two cases rather contradictory.   On one hand, those that believe that Terri Highsmith and Ann Marie Gallant have a legal case are content to let the courts “sort out” who is right and who is wrong.  (I’m going to go with the assumption that folks that are supportive of both women will paint any settlement as a “win”.)  On the other hand, those that are convinced of Lena Tam’s guilt in the whole “was she leaking confidential information” are not placated by the District Attorney dismissing the case because the evidence was lacking and the legal theory unsound.

Here’s the thing, with regard to the Lena Tam case, essentially what the District Attorney did was to say, “hey, no court or grand jury in their right mind is going to do anything with the evidence provided.”   And — something that a lot of people like to ignore in the District Attorney’s letter — was that she stated that both the evidence AND the legal theory used was “insufficient” to justify opening both a criminal complaint and/or sending the issue to the Civil Grand jury.

Now, there is a difference between a criminal and a civil case.   Criminal cases, as we all learned from watching Law & Order and other crime dramas on the TV requires a finding of guilt “beyond a reasonable doubt.”   It’s a rigorous standard, but there because when you are charging someone with a crime you better be damn sure that they did it.   (I’ll caveat this by saying that mistakes happen all the time and innocent people are often found guilty while guilty people are sometimes set free, that’s just how the legal system works out sometimes, it’s imperfect, but the only one we have.)

Civil cases, on the other hand, as we have learned from watching the People’s Court and other such mediation type tv shows dressed up like courtroom cases, requires a much less rigorous standard.  More likely it will be a finding based on the “preponderance of the evidence” (meaning that there simply needs to be a be a finding that it more likely happened than not) or “clear and convincing evidence” which is between “preponderance of the evidence” and “beyond a reasonable doubt.”   The District Attorney and her office found that the evidence offered by Michael Colantuono was insufficent for the biggie “beyond a reasonable doubt” and the lesser “clear and convincing evidence.”

While some folks want to dismiss this finding and decision by the District Attorney, she and her officials acted as the judge and jury by assessing the evidence and legal reasoning and found it lacking and unconvincing.  If the evidence and legal reasoning is uncompelling for the District Attorney’s office, the chances of it going anywhere with a judge or jury (or in this case Grand Jury) is fairly slim.  So while some people continue to cling on to the idea that there is some wrongdoing on the part of Lena Tam, a reasonable person would consider this analysis by the DA and conclude that a judge and/or jury would also reach the same conclusion that the DA did.

Of course, for some, the simple fact of being accused is enough to forever tar someone regardless of the outcome and that is unfortunate, but speaks more about the person’s perception than the accused individual’s acts.

Absolving Councilmember Lena Tam by not prosecuting or not sending the “case” to the Grand Jury was indeed an exoneration, it was not a “failure” to prosecute, it was an acknowledgement that there was no there, there.


  1. The D.A. wrote, back in September:

    Frankly, having reviewed your investigation personaIly, I am not surprised you would make wild and completely unsupported aIlegations like these. Whatever your motives in making these false claims I remain mindful of our role in this process: to objectively and dispassionately evaluate the facts and the law so that a just decision can be reached. We have done so in this case. (emphasis added)

    I’m unclear on how much more exonerated one can become beyond “we looked at the evidence, and there was no there, there.” Had the case gone to court, and Tam won, then we’d be hearing “she was found ‘not guilty,’ not ‘innocent.'”

    Comment by John Knox White — May 27, 2011 @ 7:08 am

  2. Yeah, well maybe it would have been better for her to be found ‘not guilty’ by a jury of her peers instead of the evidence being found ‘insufficient’ by a newb elected DA who was accused of having a personal relationship with the accused (which the DA denied, of course).

    So, instead of being found ‘not-guilty’ the sour taste of ‘not found’ continues to sully everybody connected to the matter.

    Comment by Jack Richard — May 27, 2011 @ 9:03 am

  3. The “TAM” affair was politically motivated from the very beginning. That is why it could never go anywhere. Sitting members of the council who were running against her and their ICM, city Attorney somehow decided that they could derail her campaign. It backfired on them, and they lost control of the council.

    Comment by John P. — May 27, 2011 @ 9:23 am

  4. So let me get this straight. You would prefer the tax payers foot the bill for a court trial to present evidence deemed unfounded in order to satisfy those who believe the conspiracy theory that the DA is in cahoots with a councilmember. In this case, I can guarantee if a jury trial were to occur and Councilmember Tam was found innocent, the conspiracy theory would shift from the DA to jury tampering.

    And what a precedent would be set. Regardless of what a district attorney’s office concludes, cases should be brought forth to trial. The only winners would be attorneys willing to take any case.

    Thanks, but no thanks!

    Comment by Anne DeBardeleben — May 27, 2011 @ 9:30 am

  5. With all due respect, John, most ‘politically motivated’ affairs go somewhere. Some of these affairs get rid of CMs,CAs, council members, mayors, and on up, down and around the political process in this city, county, state and fed system.

    The “Tam” affair did go somewhere, that it didn’t reach the trial stage, may have been beside the point from the beginning. After all, the ‘affair’ is still being discussed with a certain amount of acrimony.

    Comment by Jack Richard — May 27, 2011 @ 9:39 am

  6. 4.
    Yes, you got it straight. And you’re welcome.

    Comment by Jack Richard — May 27, 2011 @ 9:41 am

  7. The “personal relationship” was based on two issue:

    1. an incident that never happened
    2. being connected on Facebook along with a lot of other politicians.

    People can believe whatever they want, but there was nothing in that accusation but blind-faith belief in a such a relationship.

    Comment by John Knox White — May 27, 2011 @ 12:08 pm

  8. Jack, the only acrimony comes from those who lost power, and their supporters. I guess you are correct when you say it did go somewhere. It moved out a politically motivated I.C.M. and a politically motivated City Attorney. It also changed the balance of power in Alameda from one group to another. I believe that is what inspired Alameda Citizens Task Force to form.

    Comment by John P. — May 27, 2011 @ 12:41 pm

  9. or just reinvented itself with a new name.

    Comment by barbara kahn — May 27, 2011 @ 12:56 pm

  10. Having read the emails that were leaked on the half ream of paper I received from the city clerk’s office, I thoroughly believe Tam released confidential information. I even seem to recall she admitted sending those emails and saw nothing wrong with doing so. Witnessing the polarization within the community that resulted from what seemed like endless non-productive discussion that was going nowhere, I personally publically stated at a city council meeting that I believed she was guilty but requested we lay this to rest and move on because the city had more important issues to address. Earlier this year, a guest approached our group, which later became ACT, with a proposal to work together towards continued legal action. Regular group participants discussed the proposal and decided that we did not see our group moving forward with that direction but some people did start working with those who were heading down that road. (Without representing ACT.) As for the assumption that ACT members would see a monetary award to our former interim city manager and city attorney as a “win”, we have not reached consensus about that and it has not been discussed in some time.

    Comment by Nancy Hird — May 27, 2011 @ 1:33 pm

  11. If the information is already in the public domain like the ENA between Suncal and the City, how is that considered a “leak.” One person’s effort to be open and transparent is another’s secret conspiracy.

    Comment by Dennis V. — May 27, 2011 @ 1:45 pm

  12. Hi Nancy,

    All the documents that were sent to the DA are stored here .

    So far, every person who has claimed to have read them, has been unable to point to any of them that contained “confidential information.” can you point them out, and put this to rest.

    Can you point to any that went to SunCal or the Firefighters, which were the major charges of the investigation?

    Comment by John Knox White — May 27, 2011 @ 2:16 pm

  13. The more Nancy claims independence, the more she reveals her bias and the ridiculous claim that this is a new and independent group. If you say a horse is a cow, does it produce milk?

    Comment by barbara kahn — May 27, 2011 @ 2:33 pm

  14. ACT(ion) Alameda. otherwise known as Alameda Citizens Task force. Cute.

    Comment by John P. — May 27, 2011 @ 3:47 pm

  15. #12 – John, I am just going to give you a few examples. We all need to move forward.

    Exhibit A – Request for closed session meeting regarding public employee performance eval – bcc to Pat Keliher
    Exhibit G – Regarding special meeting of CC, ARRA and CIC/April 20, 2010 CONFIDENTIAL-ATTORNEY CLIENT PRIVILEDE To
    Exhibit H – Forwarded request for closed session – public employee performance evaluation – Bcc Pat Keliher Note: This was also Bcc’d to Marie Gilmore and it was addressed to Matarrese and cc’d to Johnson. Not only was this sent to a SunCal person but violated the Brown Act by conversing with 3 of the council members and not the full council.
    Exhibit M – Paramedics Plus letter Bcc to jdelbono

    Just for the record, prior to Tam’s lack of judgment in sending confidential information to outside people, I admired her and thought she was really smart. You might say something to the effect that it was only a slight transgression; she never apologized or accepted any wrong doing on her part. I find this very troubling for a city official.

    Comment by Nancy Hird — May 27, 2011 @ 4:08 pm

  16. Thanks Nancy,

    Just for clarity. None of the documents that you mention that went to either Keliher or Delbono were confidential. The request for a meeting is not a confidential communication, the letter was already publicly available.

    The other has been discussed, but for the record, what she forwarded was a publicly available agenda, which accidentally contained a couple of documents that were never opened (or even known to have been attached until the Colantuono letter was released).

    Comment by John Knox White — May 27, 2011 @ 4:59 pm

  17. 15. sending a communication to more than one other council member DOES NOT violate the Brown act. However doing so sets the stage for possible violations if there is any further discussion, including a series of one on one discussions by email between various recipients of the original email. This is referred to as a serial violation.

    Comment by M.I. — May 27, 2011 @ 5:04 pm

  18. 8. “… the only acrimony comes from those who lost power, and their supporters.”

    Hee, hee John, that’s a good one.

    Comment by Jack Richard — May 27, 2011 @ 5:34 pm

  19. Stinky Rose

    “…she and her officials acted as the judge and jury by assessing the evidence and legal reasoning and found it lacking and unconvincing.”

    “…a reasonable person would consider this analysis by the DA and conclude that a judge and/or jury would also reach the same conclusion that the DA did.”

    I take issue with both of these statements.

    The DA did what she did because that’s her wont. Just because a DA finds evidence lacking doesn’t mean a jury would.

    It could be argued that a DA is not a reasonable person since they are not allowed to be on juries.

    Comment by Jack Richard — May 27, 2011 @ 5:56 pm

  20. #16 & #17- If there weren’t more pressing issues in Alameda right now, I’d say this would be a great discussion to have at an ACT meeting and maybe we will one of these days. One of the ACT Core Values is truth and it would be good to get some agreement on what that really is in this matter. I will put this on my list of possible discussions if some or all of you would like to join in with us some evening.

    #13 and #14 – Come and check us out – June 9th – both 11:00 a.m. and 6:00 p.m See for yourselves who we are and what we discuss.

    Comment by Nancy Hird — May 27, 2011 @ 6:28 pm

  21. June 9th 6PM? That’s a Thursday! All wine you can drink at the Pasta P for ten small ones. Change venue and I’ll be there.

    Comment by Jack Richard — May 27, 2011 @ 6:45 pm

  22. Jack: It’s not just the facts of the case, it’s also the legal reasoning. Anyone can have an opinion about whether they feel something is “right” or “wrong” subjectively, but there are clear legal standards that have to be met as well.

    The DA was very clear that she felt as though both the evidence lacking AND the legal reasoning was not sound. While a jury might have decided, like some Alamedans have — that Lena Tam did something “wrong”, just as I feel it’s wrong that some random dude cut me off in traffic today, it doesn’t rise to the level of a prosecutable offense because there is no legal basis that supports it.

    Comment by Lauren Do — May 27, 2011 @ 6:45 pm

  23. Right, they should ensure there’s a legal basis for that ‘confidential’ stamp before issuing it to a faceless bureaucrat.

    Comment by Jack Richard — May 27, 2011 @ 6:52 pm

  24. 13. Well, actually, like most mammals, a horse does produce milk. And some races of that other mammal species, Homo sort-of-sapiens, do in fact subvert that milk to their own use. I’m sure an excellent analogy could be drawn to the topic at hand. However, it’s early in the day and I’m not sapient enough to come up with it at the moment.

    Comment by Tom Schweich — May 28, 2011 @ 8:08 am

  25. 23: Jack, the incorrect or improper application of a “Confidential” stamp does not make a record that is already public (because it is required to be so by state law) a “confidential” or private document.

    Our former ICM mis-applied the stamp to some public documents. That action alone cannot make already-public documents confidential.

    I’m no lawyer but I know there is plenty of precedent and law to back up Lena Tam’s contention that the documents she forwarded were only stamped as confidential but that they had come from the public record in the first place.

    Comment by Jon Spangler — May 28, 2011 @ 9:51 am

  26. Jon,
    Your point – that a released document cannot be post-stamped – supports my point in #23, ‘there should be a legal basis…’.

    Concerning the point about precedent and law, I think you’ll agree that ‘law’ doesn’t back up “contentions” i.e. Lena Tam’s contention”, only facts.

    Comment by Jack Richard — May 28, 2011 @ 11:01 am

  27. Lena’s competent lawyer put together a point by point refutation of the “confidentiality” of the documents “exposed” by the allegations against her. There was a lot of bogus stuff there, including redacting to make things appear different than they really were and stamping a lot of stuff confidential that were not. The firefighter’s document they verified they had direct from the source days before Lena forwarded them a copy of it as an attachment to an e-mail relating to it. The reason the D.A. did not pursue the matter is that it was a fabricated “hit job” intended to smear Lena in retaliation for Lena’s having the temerity to ask some rather difficult questions publicly. They committed a huge miscalculation, thinking she would be so humiliated she would slink off, but she knew she had done nothing wrong so she stood and fought and was vindicated. AMG had pulled the “whiste-blower” card twice before and gotten big settlements when she was terminated from prior positions. Why not do a “whistle-blowing” again here if it worked so well in the past? Trouble is, to make a “whistle-blowing” case you really need a guilty party. I hope the council sticks by their guns and does not allow AMG to take our City to the cleaners – i.e. get a big settlement for wrongful discharge. All that was done was to notify her that her contract would not be automatically renewed at the end of its period, which was March 31st. Reason? They wanted to hire a permanent City Manager. Nothing precluded AMG from applying for the City Manager position, but she did not.
    Continuing the speculation about Lena’s guilt or innocence does nothing but give fodder to AMG’s allegations which will give her money from our shrinking coffers. She got three month’s pay for doing nothing; I think that should be enough at the pay rate she was getting.

    Comment by Kate Quick — May 28, 2011 @ 3:01 pm

  28. 27
    Could you be a fair and impartial juror, Kate?

    Comment by Jack Richard — May 28, 2011 @ 5:23 pm

  29. Likely not on this one, Jack. I am really angry that people have chosen to throw mud at this good woman who has worked tirelessly to contribute to the community. And the continued attempts to do so do nothing to help us to solve our many pressing problems; they are just mean spirited and wrong, in my opinion. I know that she has done nothing wrong and I stand by my friends when I know them to be innocent and they are under attack. I would hope that they would do the same for me.

    Comment by Kate Quick — May 28, 2011 @ 7:58 pm

  30. I agree Kate, it’s like all the mud that was thrown on the previous potus, who was a good man who worked tirelessly to contribute to the nation.

    Comment by Jack Richard — May 29, 2011 @ 9:48 am

  31. 20. the Brown Act is at once fairly simple, but can also get confusing. I attended the Sunshine Task Force workshop at the library and I was quite surprised to learn that there is only one circumstance regarding appeal of employment termination where closed door is required, and that at all other times, including contract negotiations and job performance review, it is optional. For me, this stuff can never be reviewed too often.

    An example, though not directly applicable here, there were times at the end of HAB when board communications devolved into conversation where staff had to stop us because of Brown Act with regard to discussion of non-agenda items. While staff often recognized the potential even before it happened, some of us were caught off guard because we weren’t accustomed to operating in that realm.

    As for putting the claims of 16 and 17 on agenda for an ACT meeting in order to get down to the “truth”, I’m not sure I have any use to see the issue discussed in a partisan setting to satisfy persons with obvious bias, like some tribunal. Frankly, to me it’s reminiscent of McCarthy hearings.

    Comment by M.I. — May 29, 2011 @ 12:24 pm

  32. LDo &#31MI(myocardial infarction?) UR incorrect to say ACT is NOT non-partisan. Nonpartisan simply means not affiliated with any known political party (e.g. Repub or Demo) It does not mean unbiased. The Alameda League of Women Voters is also nonpartisan, but who would say it’s unbiased?

    Comment by alameda vigilante — May 29, 2011 @ 2:29 pm

  33. #32. The League has always said it was ‘political’, inasmuch as it takes positions on issues of importance and uses its positions to speak out in favor, or against issues. The important fact here is that we only take our positions after we study the issue thoroughly and can come to consensus. Our positions are all on our web site, and the ones we use from the LWVCalifornia or LWVUS are on their web sites. I think the word “bias” implies non-thinking, knee-jerk ideas, rather than studied, discussed positions arrived at through a very careful consensus process.

    Comment by Kate Quick — May 29, 2011 @ 10:35 pm

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