Blogging Bayport Alameda

April 16, 2018

Release the report

Filed under: Alameda — Lauren Do @ 6:06 am

Welp, today is one of the scheduled days that the other shoe may drop on the role City Manager/City Council shenanigans.  Expect to see a couple news vans around City Hall, but the man of the hour has got to be Steven Tavares who scooped the story of the — at first alleged, but now confirmed — non consented secret recording of a private meeting.  I’ve read a lot of people making excuses about the recording saying it falls under the guarding against committing a crime exclusion.

But let me propose this: perhaps those making the excuses should check their biases for one second.  If the inverse had happened, say it was Malia Vella or Jim Oddie who were revealed to have made the recording because they believed that they were being extorted by the City Manager or bribed, would you still be making the same excuses? If the answer is: yes, Lauren, I would be equally aghast either way since facts that have been released about the meeting seemed fairly benign.  Annoying in its persistence, but nothing rising to the level of extortion or bribery. Then cool.  If your honest answer to yourself is: no, this behavior only becomes excuse worthy because I don’t like the firefighter union’s influence on either Malia Vella or Jim Oddie and so I will excuse any attempts to take them down.  Well then, sounds like you’re not a ton better than the Republican Congress who are willing to overlook the transgressions of Trump which a Democratic president would never survive.

Anyway.

After that neat gut check. There was one major development after the first big news flurry on Friday.  That was the question of whether or not the recording happened at all. The first response that came out from Jill Keimach’s attorney on Friday was denial.  I excerpted that bit in my blog on Friday.

An attorney for Keimach denies that she recorded councilmembers without their knowledge. “She is a dedicated public servant. She did nothing wrong,” said Karl Olson, an attorney for Keimach. “She was pressured by councilmembers to give up her power under the city charter to appoint the fire chief. Councilmembers Oddie and Vella wanted the firefighters’ union to control the hiring process of a new fire chief. [emphasis added]

To Matier and Ross on Friday, Jill Keimach affirmed that she did record the City Councilmembers, but that the City Attorney, Janet Kern, had agreed with her that she could do it:

“I have worked in the public sector for 32 years, and this was the only time I felt I was put in a position where I would be asked to do something that was not legal, and be threatened by it,” Keimach told us. “So before I considered the taping, I talked to the city attorney about it, and we agreed it was legal at the time.”

And then on Saturday, Steven Tavares got the first comment from the City Attorney post Jill Keimach admitting she had recorded the conversation:

Kern denied the allegations Saturday and described them as potential grounds for a lawsuit. “To be completely clear as to the false allegations being made about me by Ms. Keimach and her lawyers, I absolutely did not advise Ms. Keimach that she was authorized to surreptitiously record two City Council members. Those statements are false and potentially legally actionable,” said Kern, in an email.

I think at this point it would be unconscionable for the City Council to not vote to release the report.  Particularly if the City Council is looking for true transparency and is maintaining that this independent investigator did his job appropriately or is even entertaining suggestions from some members of the public that certain Councilmembers be recused from voting for termination of the City Manager.  How can we — the public — properly adjudicate if (1) the independent investigation made whatever conclusions were are hearing rumored about but not verified, (2) that Malia Vella and Jim Oddie have been vindicated / implicated by the recording, (3) anything at all without the full report in hand.  If there is to be any trust in this City Council moving forward the report must be released even if it may point to bad behavior on the parts of individual City Council members.

However, I don’t think the tape recording should be released since we don’t know if it was captured appropriately (eg. that the exclusions to the two-party consent law actually applied).  Based on reports it sounds as though the independent investigator, who was initially reluctant to listen to the recordings, has done that and came to some unknown conclusion about the content.  Steven Tavares’s sources say vindication of Malia Vella and Jim Oddie.  Jill Keimach says that it supports her claims of extortion and bribery.  I don’t care to hear the tape, I want to read the independent investigator’s report.

Okay, that’s a lie.  I TOTALLY want to hear it because I’m nosy, but I know that it shouldn’t be made public because fruit of the poisonous tree and all that.

The only person who it appears will come out of this whole business relatively unscathed is Frank Matarrese.  He probably learned a lot watching the whole Ann Marie Gallant business unfold to just not say anything even if asked.  The ability to not get dragged into this whole mess is pretty admirable.

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18 Comments »

  1. Having sat in numerous closed sessions with Mayor, it is her comments that could be the most telling. I am sure that she questioned the independent investigators with the intent to determine if the recordings contain anything that would have the cross the line between an elected official and staff. To me, her vote and subsequent comments on KCBS indicate that the City Manager could not handle the heat in the kitchen.

    Comment by Mike McMahon — April 16, 2018 @ 7:36 am

    • The mayor?? OK we get it–you hate Trish Spencer b/c of your school board experience and you are a shill for business as usual at City Hall. That is not helpful here. This is a city manager discussing city business with elected city officials. Now there is a city funded investigation which will cost who knows how much in the end. Everything must be made as public as possible because these are not private parties being primarily affected here, but the citizens of Alameda who are paying for all of it.

      Comment by vigi — April 16, 2018 @ 9:29 am

  2. I agree that the report (and any iteration of it presented to the Council or City Attorney or outside attorneys) should be released, but last things first: Jim Oddie and Malia Vella should be demanding that the recording be made public. Whether the tape is released – and how soon it is released – is in those two’s hands as much as anyone else’s. They have said that they did not try to interfere with the City Manager’s fire chief selection in violation of the charter. The recording should bear that out. Moreover, they should want the public to hear how they did the public’s business. If they don’t call for the tape’s release, or offer a compelling reason why the tape should not be released, people will begin to think they want to cover up or hide something.

    It seems likely that they have known about the tape’s existence for weeks and, therefore, have had plenty of time to formulate a compelling justification for not calling for the tape to be released. “Fruit of the poisonous tree and all that” is not one. Yes, incriminating evidence is excluded from criminal trials when obtained in violation of the Constitution. But simply letting the public hear – not read a summary of — how its business is actually conducted is not at all analogous to introduction of evidence in a criminal trial. In fact, if this were a “fruit of the poisonous tree” situation, summaries or conclusions drawn from the tape would also be excluded.

    But the Alameda public is not a jury in a criminal trial or civil proceeding. The public only seeks information relevant to determining who its leaders will be. Nothing in the law bars that and the public officials in question should have nothing to hide re how they conducted the public’s business. (Mr. McMahon, in fact, suggests that the tape has already been used by the Mayor for precisely that purpose , i.e. determining whether Keimach was able to pass a certain test of leadership by being able, or not, to withstand the heat in the kitchen. Shouldn’t the public have an equal right to hear the tape in making its determinations?)

    If the City Manager’s recording was illegal – and not enough facts have been released to determine that (and the question, in part, would be not whether the tape evidences the crime of extortion, bribery, etc., but whether Keimach reasonably believed she might subject to attempts at the same) – the City Manager will suffer consequences. She may suffer consequences even if she did not break the law. You could say she already has. (Apart from ethical considerations, there is a question as to whether having Oddie and Vella participate in a possible termination decision would increase the City’s risk of liability in a retaliation suit given that they were the very ones the CM accused of interference, i.e. the ones that would be easiest to paint as having retaliatory motives.)

    But all of that is separate from the question of simply releasing the tape. Malia Vella and Jim Oddie are both very bright, capable people. Of course, I don’t always agree with them and of course do not always disagree with them – and they should take this with as big a grain of salt as proper: if they don’t do what they can to cause the public to be allowed hear the tape for itself, unfiltered, and to hear how the public’s business was conducted (or how much heat was being applied), it is hard to see how they won’t be viewed as wanting to hide something.

    Comment by MP — April 16, 2018 @ 8:02 am

    • The public — at large — is not in any real position to determine if what is heard on the tape does rise to “bribery” or “extortion.” Those are not calls that any of us with all our biases and preconceived feelings of each, individual Council person should make. If what is determined by an independent fact finder — without any axe to grind or political position to push — that what was found on the tape rises to the level of interference with the job of the City Manager then I’ll accept that and call for the resignation of the Councilmembers that participated in the interference. If what is determined by an independent fact finder — without any axe to grind or political position to push — that it didn’t rise to the level of interference, then I’ll accept that too. That’s really all we need to know from the tapes. Anything else will be used as political fodder because we will all hear what we want to hear and frame it accordingly.

      Comment by Lauren Do — April 16, 2018 @ 10:13 am

      • The public doesn’t have to determine whether or not it amounted to bribery or extortion. I don’t think the tape will show either. It will show how the public’s business is actually done. Do we not trust the public to make its own judgments? I would think there is nothing to hide.

        Comment by MP — April 16, 2018 @ 10:49 am

      • Releasing the tapes would reduce the “political fodder” by clearing O&V of suspicion. As MP says above, they will be viewed as having something to hide. This scandal will not end unless everything comes out.

        Comment by dave — April 16, 2018 @ 10:50 am

        • O&V should relinquish there positions… after all this city wants to maintain it’s reputation as a… duh I forgot what it is that makes America…I mean Alameda great.

          Comment by Jack — April 16, 2018 @ 7:35 pm

      • Considering that a lot of us have already determined — without any additional evidence — that Jim Oddie and Malia Vella interfered with the job of the City Manager. The tape will only go to either further entrenching that position or whatever the opposite position is.

        Better to let the person paid to make that determination — with his professional reputation on the line– actually adjudicate if what was alleged was actually the case.

        Comment by Lauren Do — April 16, 2018 @ 10:58 am

        • I want to hear what the report says the level of influence/interference was, and more importantly, what the legality of said influence was. Right now, a large portion of the island believes that the plain text reading of the charter means that expressing support for a particular candidate for fire chief equals an impeachable offense, if you will. I have not seen a clear legal analysis of what the threshold really is for such a charter violation and how it might play or be preempted by other laws. Once I have that analysis, I will be in a better position to determine whether the release of the tapes should be expected, or if it would be unfair to any of the parties involved. Perhaps a transcript of the recording would be a option as well. As a practical matter, before this, I would have always thought it perfectly normal for a council member to share their views on such a critical decision with the City Manager. Now, explicitly threatening her job over the choice, as the Police Chief’s statements imply of Oddie, is getting into much dicier territory.

          Comment by BMac — April 16, 2018 @ 11:42 am

  3. Two unnamed sources sounds leaky to me. Now, which two people stand to gain the most from the leaked information??? Hmmmmm.

    Comment by Eyeroll — April 16, 2018 @ 8:40 am

    • eyeroll, your are pretty good at conspiracy theory bullshit.

      Comment by JohnP.TrumpisnotmyPresident. — April 16, 2018 @ 8:42 am

  4. for me to hear the tapes I would want to know that they were legally obtained. If they were obtained illegally then I don’t want to hear them. I don’t care about what was in the city managers mind when she allegedly taped the council members. Nor do I care if the council members want them played or not.

    Comment by JohnP.TrumpisnotmyPresident. — April 16, 2018 @ 8:40 am

  5. Wouldn’t creating a written transcript or summary of tape would be just as much the “fruit of the poisonous tree” (an inapplicable doctrine here, anyway) as the tape itself, only with less information. Reading transcript of a conversation, much less a summary, is far different from actually hearing it.

    Yes, people do have preconceptions and biases. That is a questionable basis, however, for withholding information from them, especially “writ large”.

    Have the actual Councilmembers Oddie and Vella expressed any views on whether the tape should be released?

    Comment by MP — April 16, 2018 @ 1:27 pm

    • whoops! that was supposed to be a reply to BMac and Lauren, above.

      Comment by MP — April 16, 2018 @ 1:28 pm

    • Given the legal threats made against them, it is no surprise that MV and JO kept mostly quiet until now. I believe MV said over the weekend in the EBT piece that she supports releasing the report. I suggested that a transcript might be an option at some point. I think a transcript could be informative without having the same potential for salaciously being taken out of context by those w/ an axe to grind, maybe. Lauren made the “fruit of the poisonous tree” analogy. We are actually different humans, though we have never been seen in the same place at the same time.

      Comment by BMac — April 16, 2018 @ 2:10 pm

      • Ok, thanks for clearing that up, Superman. Ditto my last comment, but insert “in response to BMac” and “in response to Lauren”, where appropriate. Do you know if M.V. or J.O. have opined about whether the tape (as distinguished from the final version of the report) should be released, specifically?

        Comment by MP — April 16, 2018 @ 2:53 pm

  6. Steven Tavares on Twitter at 11 pm
    Alameda City Council votes unanimously to release independent investigator’s report on May 2; refer Keimach recording case to Alameda County D.A.; Keimach remains on paid admin leave. #alamtg

    Comment by Mike McMahon — April 16, 2018 @ 11:05 pm

  7. Was that a 5-0 unanimous, or a 3-0 with 2 recusals?

    Comment by dave — April 17, 2018 @ 6:17 am


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