Blogging Bayport Alameda

October 4, 2019

But her tape

Filed under: Alameda — Lauren Do @ 6:04 am

On Tuesday night there was a little closed session agenda item about Councilmember Malia Vella’s claim against the City of Alameda.   For those keeping tabs, Councilmember Jim Oddie announced that he would be recusing himself from that agenda item at the start of the session and asked that the items be structured in a way that would be most efficient to accommodate that recusal.

Former Mayor Trish Spencer was present and was completely thrown off her messaging to learn that Councilmembe Jim Oddie had already pre-empted her intent to scold him about that.  But what she did manage to do was to fully ingratiate herself as the darling of the old Alameda set by announcing that Malia Vella shouldn’t be paid anything, but that if they were going to settle with her that it should include releasing of the Keimach recording.

I guess Trish Spencer is really looking for anything to help bolster her 2020 City Council campaign. It’s not like she has a record to run on so she’ll have to run on a “don’t vote for this person because she did this, vote for me instead” sort of model.

Anyway, the report out from the closed session was that the Council took no action so I thought I’d ask about what that means for the case in general.  Here’s the response I received from the City Attorney’s office.  Unedited.   I’ll point out that April 17, 2018 was the City Council composition before this one:

On April 17, 2018, Council Member Vella filed a claim against the City, alleging defamation, invasion of privacy and requested reimbursement of her attorney’s fees incurred in connection with the City’s Administrative Investigation relating to the Keimach matter.  The City never formally acted-on or rejected this April 17th claim; thus, it was deemed rejected by operation of law after 45 days of inaction by the City. (Gov. Code Section 945.6(a)(2))  On 10/1/2019, the Council received information in closed session about this claim.  The Council took no action and provided no additional direction to staff on this claim.  Thus, the status of the claim remains the same.

43 Comments »

  1. This is not about Trish Spencer or “old” Alameda. No reasonable citizen thinks Vella should be reimbursed for her unseemly actions which embarrassed Alameda, resulted in a Grand Jury investigation, a huge settlement, the hiring of a new city manager, and significant legal fees incurred by the City.

    Comment by Nowyouknow — October 4, 2019 @ 6:46 am

    • Yes, no reasonable thinks that.

      And ALL reasonable citizens think the truth should come out:

      Why was the prior 40-odd thousand paid?
      Why in secret?
      Who voted for that?
      When will it be clawed back in light of grand jury finding?
      If not, why not?
      Why was nothing definitive announced after Tuesday’s non vote? We deserve answers, not a craven pocket veto.
      When will this matter be finally closed?

      Comment by dave — October 4, 2019 @ 7:05 am

  2. Well, for those keeping tabs on recusals, and I think there are some who do, this would be one include, leaving as did only three at the table to pay the bill (unknown to us in its particulars, though we have some idea of the quality of the fare), unanimously or not at all.

    Comment by MP — October 4, 2019 @ 6:56 am

  3. Reasonable citizen here. The grand jury pretty much exonerated Malia and she has been dragged through the mud and had to defend herself at great personal expense. Of course she should be reimbursed for that, and if not the city, probably by Kiemach herself. But, it appears that won’t be happening, so this should really be a nonissue for everyone except the old Alameda crowd who would be voting against her come election day anyway.

    Comment by Rod — October 4, 2019 @ 9:19 am

    • May I suggest you re-read the Grand Jury report. It explicitly states that she violated the Charter.

      And why did she need expensive representation? She was not sued. She was not charged with a crime. She was questioned/deposed, but she is an attorney, and any attorney *who is telling the truth* would not require six figure counsel. Furthermore, this all happened because she violated the charter. What you suggest is rather like Wells Fargo paying to fix my car if I wreck it during a bank robbery. That dog don’t hunt.

      And what is “the old Alameda crowd?” Does age or duration of residence afffect one’s sense of right & wrong?

      Comment by dave — October 4, 2019 @ 9:51 am

      • The report specifically said it was only Jim who violated the charter and that the charter was vague enough that it wasn’t something worth prosecuting. When you’re under legal fire, you lawyer up. You might as well ask why somebody would defend themselves while getting beaten up. Stop being so obtuse. And you know damn well what that old Alameda crowd is. The ones who are against anything progressive that might help those more vulnerable. The ones who want to make Alameda great again. The Trish Spencer/Tony Daysog/Citizens Taskforce crowd. But again, you’re just being obtuse.

        Comment by Rod — October 4, 2019 @ 11:01 am

        • I think you might be confusing the Jenkins (a private attorney) report and the findings in the Grand Jury Report. As stated in the City of Alameda’s (unanimous: John K White, Marilyn E Ashcraft, and Tony Daysog) official response to the Grand Jury Report:

          “Finding 19-4: In violation of the City’s Charter they had sworn to uphold, two Councilmembers did interfere with the City Manager’s ability to conduct an open and transparent recruitment for a new Fire Chief.
          ….
          Response: Agree to all Findings 19-1 through 19-4”

          Comment by MP — October 4, 2019 @ 11:37 am

        • I suggest that, after re-reading the grand jury report, you check the definition of “obtuse.” You’ll find it in the mirror.

          Comment by dave — October 4, 2019 @ 12:15 pm

        • Awful quiet, Rod.

          Comment by dave — October 5, 2019 @ 10:02 am

  4. First rule of 5th grade test taking. If it says All or None, it’s false.

    Comment by Li Volin — October 4, 2019 @ 9:32 am

  5. Lauren: Here is a brief overview response to your question beyond what the City provided you.

    Under the Government Tort Claims Act, individuals cannot sue a municipality without first “exhausting administrative remedies.” In this case, the administrative remedy is to file a claim and give the City an opportunity to settle the dispute. According to the City Attorney’s statement, the City has “rejected the claim” by inaction. This rejection satisfies the claims filing requirement, and Councilmember Vella is now free to seek relief in the courts. This right to sue will expire if a complaint is not filed within the state mandated statute of limitations. However, the City has the ability to extend the statute of limitations by agreement to avoid forcing the injured party to file a suit if the City, in good faith, tries to work out a possible settlement.

    The City has the ability to resolve the dispute at any time, even after the claim as been rejected. It can also take no action and wait for the statute of limitations to expire or be sued. If a law suit is filed, then the closed session Council will be forced to deal with the complaint, consider the cost of defending the suit, evaluating the merits of the case, review possible settlement offers, etc.

    The three members of the closed session Council will need to unanimously agree on any action.

    Comment by Jeff Cambra — October 4, 2019 @ 10:17 am

  6. Trish Spencer is the very last person to take on the mantle of fiscal responsibility. She and her group lured the city into a special election that’s cost the taxpayers $700,000 based on false and misleading premises, and later she and her same group vexed the city with a costly and misguided CEQA lawsuit for their own purposes. Trish Spencer needs to be held accountable for her actions that did nothing but cost the city money and resources, and the voters need to be reminded of this if she tries to run for city council in 2020.

    Comment by JRB — October 4, 2019 @ 10:38 am

    • totally agree.

      Comment by joelsf — October 6, 2019 @ 8:43 am

  7. Hey Dave: Your questions deserve some type of response so I am willing to take a shot. If anyone has more detailed information, please add to and/or correct my comment. I need to issue a disclaimer that most of this comment covers “general concepts” and may not have any specific application to the exact authority of the departments mentioned below or the specifics of the current claim. If folks are interested in getting the “exact scoop” on the specifics as they apply to this situation, they would need to ask the specific department. Also, sorry for the long comment.

    • Why was the prior 40-odd thousand paid?
    • Why in secret?
    • Who voted for that?
    • When will it be clawed back in light of grand jury finding?
    • If not, why not?

    In most jurisdictions, the City Attorney’s Office has settlement authority to resolve claims and lawsuits up to a certain dollar limit. The City Council may get a report on the settlements, but they may or may not have any input. In other cases with larger settlement amounts (over the department’s limits) and claims involving certain topics, a City Attorney would bring the case to a Council in closed session for direction. This would involve a presentation of the case by the City Attorney and possible recommendations.

    It is possible that prior to having any claim filed, a City would be required to provide outside legal representation to a person that was acting in their official capacity as a representative of that City and was subject to actions that caused alleged “damage” to that individual from another individual also acting in their official capacity. The key point being that both parties are working in their official capacity and therefore are representatves of the City, who would be ultimately responsible for the conduct of both parties. A City Attorney could not represent both parties due to the direct conflict of interest in representing the city and may be required to not represent either of the parties based on the conflicts analysis.

    It may be determined later in the proceeding that the conduct of one or both of these parties were not acting in their official capacity. However, until that determination is made, a City would be responsible for providing a defense. This is why there will not be any return of money already paid.

    • A comment from another group wanted the claim to be denied and force a lawsuit on the merits.
    • Why was nothing definitive announced after Tuesday’s non vote? We deserve answers, not a craven pocket veto.
    • When will this matter be finally closed?

    Generally speaking, no City wants to be sued. With that said, a City should take its responsibility to protect tax payer dollars seriously and evaluate the merits of the case and the liklihood of the claimant prevailing . A City’s exposure to a larger judgement merits a larger settlement amount in order to protect the City from an even larger judgement. I can attest to the fact that the City of Alameda City Attorney does take this evaluation and settlement responsibility very seriously having had first hand experience with my own claim. Given the Council’s lack of direction and the fact that the claim has been denied by operation of law, it seems like some type of evaluation was made and the Council either could not get a unanimous vote on a directon or got a unanimous vote to take no action. Either way, the ball is now in Councilmember Vella’s court as they say whether to pursue the claim in Superior Court, which she has every right to do.

    I am not going to repeat the “nuisance value of a case” discussion here. However, by evaluating the merits of a claimant’s case, a City can significantly reduce the amount of the settlement, regardless of the amount that the claimant is suing for. So, while anyone can sue anybody for any amount of money, the facts of the case and the amount of PROVABLE damages will dictate the settlement amount. The facts in this case would be the origional recording of the meeting.

    It is unrealistic to think that any party would simply drop a claim without getting a small settlement, especially if the claimant has lawyered up. A possible exceptions to this would be if thew evidence was so overwehlming against the claimant or a city had a counter claim against a claimant. In these cases, one might call it a draw, execute mutual releases, and go home. Otherwise, this is an ideal case to be resolved through a private mediation.

    • Why in secret?

    The Brown Act and the City’s Sunshine Ordinance govern what topics can be discussed in closed session. The threat of litigation is one of those subjects. You do not need a law suit to be filed, and technically, a Council could go into closed session even if a claim was not filed so long as it is clear that there is a “threat” of litigation. There are many good reasons for having this exception that go way beyond the scope of this comment. These laws provide for an exception to the public disclosure of matters being litigated, but they do not mandate that the governing body withhold information from the public. Consequently, a Council could decide to disclose some or all of the content of a closed session subject to the advice of the City Attorney.

    Hope this helps better expain how complicated these situations can be.

    Comment by Jeff Cambra — October 5, 2019 @ 10:21 am

    • Thank you Jeff.

      I certainly understand how a city should provide legal representation for someone acting in their official capacity. That is, rightly, standard operating procedure. But CM1 and CM2 were acting outside of their official capacity; that is the heart of this matter.

      I suppose if one squints really hard, it’s possible to conclude that providing counsel for them was appropriate up to the point of their guilt established by the Grand Jury, but since the GJ has decided they were in error, and were in fact acting outside of their capacity and to the detriment of the city, that to me is a solid reason to claw back the funds already paid.
      If that is a sunk cost, so be it, but jeez, don’t throw good money after bad by paying more, whether by claim or by settling a suit.

      All this still begs the question: why did she need such legal firepower at all? She was not sued. She was not charged with a crime. Defamation is silly, politicians are public figures and virtually impossible to defame. And in any case, truth is an affirmative defense for defamation. (Aside: do white males of Protestant faith have a defamation case vs. Vella?)

      She was questioned and deposed. For this one can see having counsel present, even if one is a trained lawyer as Vella is. But six figures of counsel for a licensed attorney to truthfully answer questions? That passes no smell test at all.

      Comment by dave — October 7, 2019 @ 6:01 am

  8. Thank you, Jeff. Food for thought?

    Do you mind describing your claim vs city?

    Comment by dave — October 5, 2019 @ 12:46 pm

    • Sorry for the delay in responding Dave. Had a very busy weekend.

      I filed a claim with the City for libel (a subset of defamation) based on a comment posted by Councilmember Vella on Facebook saying that I did not have malpractice insurance (which I did have at the time of the comment and do maintain today) and that I could not provide legal services to tenants. The comment also called into question my ability to maintain my duty as an attorney to uphold client confidentiality because I served on a board.

      In my opinion, these statements were unfounded misrepresentations or overly broad characterizations that would have a significant negative impact on, among other things, my ability to continue to provide pro bono legal services to Alameda residents.

      After informal efforts directly with Councilmember Vella to obtain a full retraction failed, I was forced to file the claim with the City in order to preserve my right to continue to seek a retraction resolution through a more formal process. Failure to do so would have exhausted any right I had to a remedy due to the six month statute of limitations for filing a claim.

      My claim was somewhat unique in that my objective was to get a retraction of the statements made by Councilmember Vella rather than compensation to reimburse me for the approximately $10,000 I had to pay in print and social media ads to rebut the assertion that I did not have malpractice insurance.

      After several discussions with the City and refining the language of a proposed draft retraction statement, I was able to obtain the retraction I wanted. I believe it went to the Council in closed session for final approval, since it was a retraction given by the City.

      Comment by Jeff Cambra — October 7, 2019 @ 9:11 am

      • Oh, yeah, now I remember. Thanks for jogging my memory.

        Wasn’t that the the case when she lied about making statements that there was proof she had made?

        Comment by dave — October 7, 2019 @ 9:38 am

        • Dave: I don’t know what information Councilmember Vella relied on when she posted her comments regarding malpractice insurance, client representation, and confidentiality so I cannot address those areas. I characterized the malpractice comment as misrepresenting the facts as they existed. The other comments were overly broad mischaracterizations that would impact my legal practice. Not sure exactly how to characterize those statements. However, when I was investigating the comment, I did ask her if she had posted anything about me on social media, and her response was “Nope.”

          Comment by Jeff Cambra — October 9, 2019 @ 11:11 am

      • when did the city consider this claim? is the claim attached to any council agenda on the city’s website? $10,000?

        Comment by MP — October 7, 2019 @ 7:32 pm

        • MP: My claim appeared on the Council’s closed session agenda twice. Once in January I think where the Council gave direction and again in May (??) when they approved the settlement. The action was taken in closed session based on the “threat of litigation” exception to the Brown Act. Consequently, it would not have appeared on the Council’s regular agenda but was included on the closed session agenda.

          As I said earlier, the $10,000 was for the out of pocket cost of print ads (Alameda Sun and Alameda Magazine) and boosted ads from my Cambra Law Facebook page. However, I was NOT seeking reimbursement of those funds. I simply wanted a retraction. I did not receive any money from the settlement.

          Comment by Jeff Cambra — October 8, 2019 @ 7:44 am

        • Thanks. I meant to ask whether the claim itself was available on the city website. It’s a public record isn’t it?

          Comment by MP — October 8, 2019 @ 8:59 am

        • MP I never checked the agenda so I don’t know what was posted as part of the Agenda, and I am not aware of a place where the City would post such claims. You might check with the City Clerk. If claims are not posted, then they are available upon request through a CPRA request.

          Comment by Jeff Cambra — October 8, 2019 @ 10:14 am

        • thnx

          Comment by MP — October 8, 2019 @ 11:25 am

  9. Enough of Trish Spenser already. She didn’t complete her job with the schools, cost us money, was a half-ass mayor and citizen. Who in their right mind ever vote for her again. Who would ever listen to her again? I lived in Alameda for going on 15 years and I still am considered new. Most of Alameda is new. When do we become actual citizens of Alameda? My dad worked for the government and we moved every 1 or 2 years I would make friends and say goodbye. I never had a home until I move to Alameda. I not new and I am staying.

    Comment by joelsf — October 6, 2019 @ 8:41 am

    • joelsf, I have lived in the same house here in Alameda for 76 years, so I consider myself a real Alamedan, & a real solid West Ender. I’m making you a real Alameda citizen as of this moment. Also because of your opinion of the last Mayor you get an “A” in my book.

      Comment by trumpisnotmypresident — October 6, 2019 @ 9:17 pm

      • I agree with you, Mr. P, or TINMP Joel is in. He gets the “A”. West End rules!

        Comment by Kate Quick — October 7, 2019 @ 9:58 pm

  10. Malia Vella attended a meeting. That Grand Jury report is preposterously written, gets facts wrong, and declined to speak directly to key players — including the former mayor.

    The way CM Vella has been treated through this is shameful.

    Comment by Gaylon — October 6, 2019 @ 5:21 pm

    • Yes, it is almost as if Shifty Adam Schiff’s hand were behind the lies and massive frauds perpetrated upon us by the Grand Jury report which was knowingly delivered as a ruthless con that was totally biased, boring and wrong (as usual)…a crime, perhaps treason, in making up a horrible statement. Well, by George, the great Scam is being revealed! What, one can’t have one totally appropriate meeting with the City Manager? It was a conversation that could not have been nicer, warmer, or better. No pressure at all!. It is just another Hoax! I deserve to meet my accuser, especially when this accuser, the so-called “Whistleblower,” Ms. Keimach, represented a perfect conversation in a totally inaccurate and fraudulent way, all likely stemming from Ms. Keimach’s “heightened anxiety level.”

      Comment by MP — October 6, 2019 @ 8:27 pm

      • MP are you ok? You seem little hysterical. I’ve read the Jenkins report and the GJ report. The Grand Jury report got basic facts wrong. It’s written in a breathless, OMG! style that I am sure is appealing to some — but it doesn’t help those of us who want to know what happened.

        Oddie used city letterhead to advocate for a candidate. Vella didn’t. Why is she being held accountable for his lapse in judgement?

        Comment by Gaylon — October 6, 2019 @ 8:41 pm

        • 1) The GJ report was based on much stronger, deeper, more relevant evidence than Jenkins — by that I mean Exhibit A: the TAPE

          2) Check your sarcasm meter, it seems to be on the fritz.

          Comment by dave — October 6, 2019 @ 9:33 pm

        • Great question. Another investigation of Hillary Clinton’s email server is surely in order.

          Comment by MP — October 6, 2019 @ 9:35 pm

        • Dave – what did the tape reveal that the Jenkins investigation did not? The line of inquiries raised by Malia Vella on tape was consistent with her duty as CM per city charter, emphasis on the capitalized section: “Sec. 7-3. Neither the Council nor any of the members thereof shall interfere with the execution by the City Manager of his or her powers and duties. EXCEPT FOR PURPOSES OF INQUIRY, the Council and its members shall deal with that portion of the administrative service for which the City Manager is responsible solely through him or her.” Ms. Vella’s detractors could argue that persistent inquiries constitutes interference, but the city charter is too vague to specify when and how that line gets crossed, and this is why the city charter needs to be updated. It’s best for everyone to just admit it could’ve been done differently, fix the charter, and move on – the only ones still revisiting this are the ones trying to score political points.

          Comment by JRB — October 7, 2019 @ 9:31 am

        • I was in error. This shameful treatment must have been perpetrated, once again, by the shameful villain Tony Daysog who voted unanimously, all by himself, 3-0 (Daysog, Daysog, Daysog), to traitorously sell out our poor, windswept island to the forces of the County as follows:

          “Finding 19-4: In violation of the City’s Charter they had sworn to uphold, two Councilmembers did interfere with the City Manager’s ability to conduct an open and transparent recruitment for a new Fire Chief.
          ….
          Response: Agree to all Findings 19-1 through 19-4”

          http://grandjury.acgov.org/grandjury-assets/docs/2019-2020/City%20of%20Alameda_20190726.pdf

          Where is this Mr. Daysog? Answer for your treachery!

          Comment by MP — October 7, 2019 @ 9:48 am

        • JRB – Are you accusing Councilmember Vella of just trying to score political points, or did causing her claim against the City for money to be brought up in closed session on Oct 2 not count as “revisiting this”?

          Comment by MP — October 7, 2019 @ 9:55 am

  11. JRB:

    Since the tape has not been revealed to the public, we can only speculate what exactly is said on it, but we do have the GJ report about it, which concludes that she did pressure Keimach. The Jenkins report (strangely) avoided listening to the tape and relied on testimony, including Vella’s. Interestingly, the GJ report also concludes that Vella admitted discussing the sitch with Oddie in advance while attending a wedding, something she denied doing in the Jenkins report.

    Note once more that council voted 3-0 to accept and agree with the GJ report. Unless or until the tape is released, the Grand Jury report and its confirmation by council is the most solid conclusion we have.

    PS Does anyone know who has heard the tape? Obviously the Grand Jury has, and presumably someone in the DA’s office has as well. What about council? The city attorney? Oddie & Vella’s lawyers? Others?

    Comment by dave — October 7, 2019 @ 11:16 am

    • Dave – indemnification is something that usually happens towards the end to conclude a matter, so it’s not “revisiting.” A line of inquiries is within Ms. Vella’s right per the city charter, and others could reasonably construe that as pressuring. For anyone to conclusively claim that it’s one or the other is not being totally honest.

      Comment by JRB — October 8, 2019 @ 9:27 am

      • I lean toward the report issued by a group of 12 who heard the tape. It is a much higher grade of evidence than a report by one who didn’t.

        But dammit, we all need to hear it. Release the tape!

        Comment by dave — October 8, 2019 @ 9:41 am

      • JRB, I’ll accept your logic, but apply it uniformly:

        Discussing reasons not to “indemnify” – because indemnity “is something that usually happens towards the end to conclude a matter” – is also not “revisiting”.

        Comment by MP — October 8, 2019 @ 10:18 am

  12. As a retired civil servant, I know that if any elected or other civil service person approached me with an inappropriate subject for discussion it was my duty to say, “It is forbidden in the City Charter (County Charter, or whatever) for me to have this discussion with you. I will not meet with you on this topic nor entertain any written or telephone communications on it, either.” I have been bewildered as to why the CM did not refuse to take the meeting and remind the Councilpersons involved why it was not in order. CMs are supposed to give guidance to their policy makers; it’s part of their job. If they try to raise an inappropriate subject in closed session, the CM or the City Attorney would surely remind them that that matter was not covered under the rules and shut down the conversation, etc. I’ve seen it done and it was done politely but firmly and there were no adverse consequences to anyone.

    Comment by Kate Quick — October 9, 2019 @ 1:06 pm

    • Have you seen that “polite” thing done right after a message is passed through a Police Chief that the City Manager had better “do the right thing”, or else?

      And what was the first reaction to the email politely reminding the councilmembers (of that which they shouldn’t have had to be reminded, i.e. the City Charter)?

      Although Councilmember Ashcraft appreciated the email, “……Councilmember Oddie responded by email to _____ and Jill Keimach. As reflected in his email, Councilmember was upset that Gould was 
copied on the email. Councilmember Oddie reported that he saw the email as an intimidation tactic designed to interfere with the Council’s ability to conduct its evaluation of Keimach…..”
 (Jenkins page 41).

      Seriously.

      I’ve been much more “bewildered” as to why two Councilmembers, who are very competent members of the Bar, and who had sworn to uphold the City Charter, planned together to double-team the City Manager in that meeting. Or maybe it’s not so bewildering after all.

      Comment by MP — October 9, 2019 @ 1:46 pm

    • A very shameful response. Very shameful. That’s like saying the high up women harassed by Harvey Weinstein are at fault, too, for never having had the guts to go through proper channels to against not just Weinstein but the Hollywood power structure too. Shameful. Shameful. That city manager was alone in going against Oddie, Vella and Bonta who personally weighed in. That dimwitted that you can’t see that? Choose not to? Shame! Shame!

      Comment by shameful — October 10, 2019 @ 12:20 pm


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