Blogging Bayport Alameda

April 25, 2018

At will

Filed under: Alameda — Lauren Do @ 6:05 am

At the City Council meeting I thought that one of the few compelling arguments raised before the Closed Session to chat about the whole Jill Keimach business was that the City Council had failed to actually have perfomance evaluations for the City Manager and that there wasn’t a record of progressive discipline.  But now, it appears, that you can just fire a City Manager who had a positive record and that’s okay. But only if the individual is willing to not make a big deal about it.

Case in point, former Alameda City Manager John Russo who moved to greener pastures, well more southern pastures, and headed down to Riverside.  He apparently was doing such a good job that he was being offered a really sweet contract until the Mayor of Riverside objected.   From the Press Enterprise:

 Riverside City Council members were explicit in their warning when they voted in February to extend then-City Manager John Russo’s contract: If we don’t show strong support, staff members will see us as unsupportive and unstable.

Top staff, serving below their pay grade out of loyalty to Russo and the city’s mission, will flee. And, they said, it will be hard to recruit for positions that make the city run well.

With those dangers in mind — along with the fear of bad publicity over a dispute about the wisdom of the contract and the legality of the veto Mayor Rusty Bailey was threatening to stop it — council members voted 5-2 to extend Russo’s contract until December 2024.

 

Then that same council, without saying what had changed, voted 4-3 Tuesday, April 17, to fire Russo.

Some, including Councilman Andy Melendrez, say the signal sent by firing a top official they nearly all agreed was going a great job just 10 weeks earlier only makes things worse.

“It really speaks to the fickleness of the council,” said Melendrez, who voted in support of Russo both times. “I think when you have a city that’s moving very strongly forward and you lose a city manager, I think it sends up real questions to those that are looking.”

And one of the things that has been pointed out about Alameda — the number of City Managers within a relatively short span of time — is also true about Riverside as well.

It’s interesting though that the person who most people would consider to be very political was fairly passive in the response to his exit.  But it’s the career bureaucrat that has seemingly organized a very political response to the perception of her ousting.

13 Comments

  1. Let’s hold off on elevating passivity in the bureaucracy vis a vis the City Council too highly. There are times we might not prefer it (and have not preferred it, right here).

    We are fortunate that our City Council, in contrast to Riverside, seems to have been convinced that we should be given some form of explanation for what happened. After all, we pay the taxes (sales tax, property tax directly or indirectly through rents) that fund the whole show and we have the responsibility for evaluating – including on the basis of track records in office — the various candidates in the next go around.

    Maybe Alameda residents will even be trusted, and be seen as deserving enough, to hear with their own ears the tape-recorded meeting/confrontation between two city councilmembers and (former) city manager Keimach that seems central to the entire controversy.

    Comment by MP — April 25, 2018 @ 7:04 am

    • Let’s say I’m on the city council and the city manager illegally secretly video tapes me through my bathroom window. She then goes public saying that the video shows me wearing leopard-print underwear with bold pink lettering on the front that says “ALL ALAMEDANS OVER AGE 50 SHOULD DIE!”

      The video is sent to independent authorities who point out that being a “peeping tom” is illegal, and that in fact I was wearing standard men’s Hanes briefs and that the accusation has no merit.

      Should the public have the right to see the peeping tom video? Should I demand that the video of me in my underwear be made public to prove my innocence? If I did demand that, won’t this likely lead to people now going to be nitpicking my less-than stellar physique, or other aspects of my standard underwear (holes, fading, worn out elastic, etc.)?

      The reason there is a law against secretly recording conversations is because people don’t want their private conversations made public without their prior consent.

      Comment by brock — April 25, 2018 @ 11:28 am

      • If there were a video of you in your leopard-print underwear, taken through your bathroom window, not only would I plead with whoever had it in their possession to keep it there, I would rush to City Hall (even if I only had time to put on my own underwear) to demand an urgency ordinance making its distribution illegal – prior restrain or not. That is not intended as any sort of body shaming btw – I assume you look wonderful in leopard-print undies and what you call less than stellar is probably perfect to those who matter.

        The law applicable in Keimach’s case would prohibit the recording (if certain conditions are met: i.e. was it a “confidential” conversation as that is defined in the law and if no exceptions applied), but it would not prohibit its distribution or publication. Again, if the statute did prevent publication generally – as it does with respect to certain conversation about medical issues (you can look it up beginning at about section 630 of the Penal Code). If it did, the law would raise significant prior restraint issues.

        So far as has been reported, Keimach was a participant in the recorded conversation, as opposed to peaking through someone’s bathroom window or listening in on someone else’s conversation. The conversation was between public officials – who it seems had developed an adversarial relationship – and was presumably about the public’s business, not personal affairs such as your and my present conversation about underwear preferences. That’s not to say that the facts surrounding the conversation won’t demonstrate a legitimate privacy interest on the part of the public officials involved, but wouldn’t you agree that the privacy interest is very likely to be a bit different (lesser) than the privacy interest that would be implicated by someone putting a camera through your bathroom window?

        Finally, assume there is a right or other mechanism (e.g., threat of a damages suit) to prevent disclosure that might be used here. A broad purpose-of-the-law defense for invoking such mechanisms (or, for not voluntarily calling for release), in our particular circumstances, such as “The reason there is a law against secretly recording conversations is because people don’t want their private conversations made public without their prior consent”, may be acceptable to many. To others it may not (because, e.g., this is the public’s business). And there will be a question in the minds of at least some within both schools of thought: is there something about this particular conversation (about the public’s business, amongst officials) that they don’t want “made public”?

        Comment by MP — April 25, 2018 @ 1:01 pm

        • Does the about two party consent law have a clause that says something to the effect of “…except for conversations between two public officials”?

          Comment by brock — April 25, 2018 @ 2:45 pm

        • No

          Comment by MP — April 25, 2018 @ 3:13 pm

        • Donald Sterling, former owner of the LA Clippers, went on a racist rant (in his home), that was caught on tape by his (former) friend, V. Stiviano. TMZ broadcast the tape, which lead to the NBA deciding to banish Sterling. Many, if not most, in the public agreed with the NBA’s decision, believing that racism has no place in the NBA. Sterling then sued Stiviano for the taping and TMZ for publishing it in Los Angeles County Superior Court (Case No. BC590575).

          The Superior Court quickly dismissed Sterlings claims against TMZ (on an Anti-SLAPP motion). Substantively, the First Amendment protected TMZ’s publication of the tape and, in addition, TMZ did not violate Penal Code section 632: “TMZ did not ‘eavesdrop’ or ‘record’ his conversation; rather, Stiviano made the recording. ‘Penal Code section 632 does not prohibit the disclosure of information gathered in violation of its terms’ [citation omitted]”.

          According to press accounts, Assemblyman Bonta, if not others, have threatened litigation over the recording(s). Calling that a Donald Sterling-like strategy might be unfair, as this is surely a different case. But there are ways to avoid the possibility of impression and, at the same time, reduce the settlement leverage, if any, created by the tape.

          Comment by MP — April 27, 2018 @ 6:19 am

        • That is an interesting case result. Thanks. I never followed that case to its conclusion.

          I do think it’s a bad result though. It seems like it violates the intent of the two-party consent law, as I’m trying to illustrate with my ham-handed analogy. Regardless of how anyone feels about two-party consent, I’d rather see the law changed if its intent isn’t going to be upheld, rather than have strange courtroom results like this one.

          Comment by brock — April 27, 2018 @ 8:51 am

        • thank you. A few points

          (1) The part about TMZ being dismissed from the case is not an anomalous result (i.e. mistaken or strange), though you may think it is a bad result. The First Amendment protects that sort of publication and California’s two-way consent law (which only a minority of states have – and not necessarily breaking down along red vs. blue, lib. vs. conservative, if that matters) does not prohibit it. On the first point, the LA Superior Court was relying on Supreme Court and Federal Court of Appeals authority. On the second point, the Superior Court was relying on language of California’s two-way consent law and California Court of Appeal authority holding that California’s two-way law does not prohibit subsequent distribution, only the recording itself. On this second point, in other words, it was not a case of the court not upholding the intent of the two way consent law, but rather applying it as it was written (and you usually look to the way the law is written as the primary indication of how it was intended to be applied).

          (2) With respect to changing the First Amendment so as to prohibit an act of publication by TMZ on a public issue (the LA Superior Court went into discussed the extent to which Sterling was a public figure and how the issue of his attitudes was a public issue [including through his public expressions of opinion on related issues]), you would need to overturn a lot of precedent or go through the process re-writing/amending the First Amendment. I wouldn’t recommend that, though.

          (3) Procedurally, changing California’s two way consent law (Penal Code 632) so as to impose an additional across the board prohibition on subsequent publication of a recording made in violation of 632 – no matter whether the recording concerned public affairs – would obviously be much easier than a constitutional amendment. However, such an across the board prohibition would still likely run up against the First Amendment. (California’s law does contain a prohibition on distributing certain recordings made in violation of PC 632, but that prohibition is limited (I believe to recordings containing private medical information). That limited prohibition likely does not run afoul of the First Amendment, at least as generally applied.

          (4) After the court dismissed TMZ from Sterling’s case, Sterling voluntarily dismissed V. Stiviano. That is to say that someone in Stiviano’s situation would not necessarily escape sanction under the Superior Court’s ruling described above. In that case, Stiviano escaped sanction or further sanction because Sterling went ahead and dismissed his claims against her (there could have been a monetary settlement – why would Sterling care about that though except as punishment – or some other terms; I don’t know) after TMZ was dismissed by the court.

          (5) Part of the point of bringing up this case is recall back to the time when this occurred. There surely were some who thought at the time that the entire matter was unjust and that Sterling should have escaped public scrutiny or the NBA’s decision against him was wrong (he sued the NBA separately) because the recording was (1) made in California (2) without his consent. I don’t think that was the dominant thought out there. And even if one sees Stiviano as a villain, there would have remained the question of – her blameworthiness aside – what do you do with the recorded facts. Sterling himself surely wished he had foreknowledge of V. Stiviano’s decision to give the tape to TMZ so that he or his lawyers could have put fear of some legal sanction in her before word of the hideous things he said got out. Some, but not all, would have applauded (or withheld objection to) Sterling for that, I guess.

          — ok, back to work

          Comment by MP — April 27, 2018 @ 10:04 am

        • Re: (3) – – I’m not suggesting changing CA 2-party consent law to strengthen it (I’d rather not violating US 1st amendment, far outweighing any feelings I have about guaranteeing privacy between two people). I’m saying we should weaken it, or even better, get rid of it all together.

          From your example, it doesn’t provide people with the expectation that their private conversations be kept private, it just allows for people to sue each other. So the effect of the law is that any prudent person should constantly assume that their conversations (outside of close personal relations) could be made public any time. As I see it, the only time this law is effectively useful is if a person would like to entrap someone into recording them for the purposes of suing them later, since the content of the recorded conversation can/will be made public by handing it off to someone else without consequence.

          Get rid of the useless law. One down a billion to go.

          Comment by brock — April 27, 2018 @ 11:26 am

        • You guys left out the part about Stiviano being the young golddigger of 80-year-old Donald Sterling; and Sterling’s wife successfully suing Stiviano to retrieve millions in community property. https://www.usatoday.com/story/sports/nba/clippers/2015/04/15/donald-sterling-v-stiviano-shelly-sterling/25808691/
          Don’t you think the judge looked at the totality of the situation? The Sterling cases were part of a love triangle, and such affairs often involve the blackmail of recorded conversations. No love triangle at City Hall that I know of.

          At any rate, it seems Calif is in the minority of states requiring two-party consent for recording.

          Comment by vigi — April 27, 2018 @ 3:32 pm

      • Talk about lame analogies. Is your home bathroom a city office? Are you conducting city business in there on paid city time? Is the person taping you physically in the bathroom with you [nope]? What “innocence” are you trying to prove, since free speech is not a crime [all Alamedans over 50 will die, anyway, eventually]? You are not engaged in activity which violates the public trust. Analogy fail.

        Comment by vigi — April 25, 2018 @ 1:27 pm

        • I didn’t say home bathroom. Do you think that it should be legal to peep on people using City Hall bathrooms, if they are on paid city time?

          I wish someone around here had experience committing crimes on city property that we could ask about such things. Bonus points if the incidents involved Oddie in some way.

          Comment by brock — April 25, 2018 @ 2:49 pm

        • Oddie telling the Police Chief that there are enough votes to fire Keimach if she didn’t select Weaver for the Fire Chief position is public, and if this is also in the recording from Keimach, it would be a violation of the charter. Oddie did not disclose that he filed for bankruptcy, so I would not put him forward as the epitome of transparency.

          Comment by Alan — April 25, 2018 @ 3:29 pm


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