Blogging Bayport Alameda

December 2, 2019

I’ll know

Filed under: Alameda — Lauren Do @ 6:02 am

What a way to ring in the holidays!  The City Council will be considering an agenda item to establish a policy to not grant legal fees if a City Councilmember “knowingly” violates the City Charter.

“Knowingly” is going to be a tough road to resolve, but *shrug*.   From the staff report:

The Policy provides: “No Council member nor City staff member shall be entitled to reimbursement from the City for legal or other fees incurred as a result of such person’s knowing violation of the City Charter, an applicable criminal statute, or an applicable ethical code of conduct.  “Knowing” is an expression of general, not specific, intent and a person knowingly commits a violation by intentionally engaging in the proscribed conduct; however, it is not required that the person intends to violate the law or an ethical code of conduct, or knows that the conduct is proscribed.   The City Council, excluding than any City Council member who has a conflict of interest concerning such reimbursement, may decide whether the City Council member or City staff member requesting or seeking reimbursement knowingly committed the violation or delegate such decision authority to the City Manager, the City Attorney or appointed Special Counsel.”

And more:

The proposed Policy permits the City Council to itself determine whether the City Council member or City staff member requesting or seeking reimbursement knowingly committed the violation or delegate such decision authority to the City Manager, the City Attorney or appointed Special Counsel.

Moreover, the Policy will come into sharper focus if another recommendation of the Grand Jury is implemented, namely, if the City Charter delineates with more specificity the types of conduct that constitute a violation of the City Charter and, in particular, violations concerning the interference with the City Manager’s powers to appoint City employees.  The Policy will also come into sharper focus if the City Council adopts an ethical code of conduct, which staff intends to present early in 2020.

This is definitely going to make for cranky discussions all around.  I think it’s worth going down the road to figure out something, but “knowingly” sounds like it will be a pitfall before it even needs to be of use.

 

6 Comments »

  1. 1) There is some ambiguity in the Charter with respect to Council intervention in the appointment process, at least with respect to certain hypothetical situations. When you listen to the tape, however, it is clear that respect to both councilmembers that, although some of their discussion may fall under the category of a permitted inquiry (at least if you take those parts of the meeting in isolation), as a whole, and in very specific and numerous occasions, the discussion of both councilmembers crossed the already-existing, clear-line prohibition against attempting to influence the City Manager’s appointment. For example, advocating for internal candidates, in general, while heaping praise on one of the three internal candidates and calling the other two internal candidates “a disaster” or likely not to have the trust of fire officers.

    One of the defenses has been to assert a lack of knowledge of the prohibition in the Charter against attempting to influence the City Manager’s appointment (Jenkins Report page 41). No amount of “clarification” of that prohibition can solve a total lack of awareness that it even exists.

    So long as the basic goal of insulating the appointment/hiring process from direct political influence by the Council remains, the Council should take care, in whatever charter amendments it puts on the ballot, not to weaken what is already a clear line, at least as applied to what occurred on the tape. The Council should ask itself what really led to the violations that did occur, whether it was because of a lack of clear lines in the charter, (whether it wants those clear lines that exist to remain), and whether the creation of multiple new detailed rules will achieve the objective or, to the contrary, create a safe harbor for the type of influence sought to be avoided.

    2) With fee indemnification as well, the Council should take care to not create fee liability where it does not already exist. One of the things that was never clear during the period the two councilmembers sought reimbursement of their private attorney fees, was under what statutory authority they were asking the City to reimburse the fees (and under which some were, in fact, reimbursed). It was pretty clear, for example, that Government Code 995 – identified in one councilmember’s claim – did not apply because no “civil action” (lawsuit) was ever brought against either councilmember.

    Also, while the idea of creating an ethical code sounds like a good idea, the suggestion that the City can refuse to indemnify a councilmember’s legal fees because the councilmember has violated a tenant of an ethical code created by the City Council where the conditions for indemnity otherwise exist under Gov’t Code 995 (“…shall provide for the defense of any civil action…,” unless “not within the scope of his or her employment”, or “a specific conflict of interest”) actual fraud, corruption, or actual malice” (Gov’t Code 995.2)), could create a problem for the city, unless the city’s charter status somehow exempts it from compliance with the Gov’t Code, or “corruption” under 995.2, for example, is something that may be defined at a local level.

    At a minimum, the Council should make clear whether anything in the proposal is intended to expand its fee liability (e.g. it is probably not their intent that just because a councilmember gets past the “knowing” violation hurdle, that the councilmember is then entitled to reimbursement unless other conditions of reimbursement are met).

    3) The Staff excerpts above also suggest that the Council will be considering codifying what already occurred with respect to the part of the two councilmembers’ attorney’s fees that were, in fact, reimbursed with city funds: i.e. to allow the Council to delegate such decisions to the City Attorney. That appears to have occurred during a closed session in September 2018 in which – without ever really being disclosed to the public until a much later date – the decision to reimburse legal fees was delegated to the (previous) city attorney https://alamedamgr.wordpress.com/2019/07/30/city-already-paid-40000-in-legal-fees-for-charter-violators/

    Comment by MP — December 2, 2019 @ 8:17 am

    • This topic is getting exhausting. Less than 5% of the voting population knows or cares about this and can name Vella and Oddie as two of their city councilmembers, and even a smaller percentage can understand the nuances of everything that’s happened. The city paid out $900K to Keimach, but her position and others were vacant for a while, so we’ve effectively recovered that cost. Other than this episode 2 years ago, have Vella and Oddie done anything worthy of criticism? By most accounts, they have been excellent public servants who have done a lot of good for their constituents, the city has a balanced budget, and the city charter will be updated to prevent this sort of thing again. All things considering, we are in a great position as a city. The only people who still care about this are those looking to score political points over a dead horse.

      Comment by Job — December 3, 2019 @ 12:05 am

      • Donald J. Trump
        @realDonaldTrump
        “This should have been over with after the Mueller Report came out.”

        Comment by MP — December 3, 2019 @ 7:50 am

      • Job: You are partially correct. “Less than 5% of the voting population knows [redacted] about this . . .” The question is do they have the right to know and what would they say and do if they did know?

        Comment by Jeff Cambra — December 3, 2019 @ 9:47 am

  2. And if said Council person violates but does not know (he,she,it) violated the charter hesheit should be impeached anyway for being too stupid to serve in such a renowned seat..

    Comment by Jack — December 2, 2019 @ 8:24 am

    • Speaking of too stupid, heeeeeeeere’s Jacky!

      Comment by Rod — December 2, 2019 @ 12:50 pm


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