LENA TAM INVESTIGATION: “Yes, you’ve got a problem there”
City Attorney Teresa Highsmith said that a series of e-mails flagged by Mayor Beverly Johnson’s executive assistant were what started the city’s investigation into City Councilwoman Lena Tam.
“She saw a couple of e-mails (to the mayor) that concerned her and brought them to the City Manager’s attention, because it appeared there was serial meeting violation of the Brown Act,” Highsmith recalled when a reporter contacted her this week.
Since the e-mails were about Highsmith, she contacted Michael Colantuono, who the city has worked with for more than a decade. He reviewed the e-mails and was determined that “yes, you’ve got a problem there,” Highsmith said.
Highsmith said she had already become concerned about Tam at a council meeting in mid-March, when the two tangled over Tam’s questions about some language in SunCal’s negotiating agreement which Highsmith saw as an attempt by Tam to read SunCal’s legal argument into the public record. Colantuono has argued that Tam was acting against the city’s best interest and on SunCal’s behalf.
Highsmith reviewed Tam’s e-mails and compiled those she felt could be evidence of misdeeds to Colantuono, who reviewed them and “decided what was evidence and what wasn’t.”
Thus began the city’s investigation of Tam, the results of which were forwarded to the Alameda County District Attorney’s office on May 26 and July 2. Attorneys there have not yet said whether they will forward the results of the investigation to a grand jury or set them aside, and they did not return calls from The Island seeking comment.
The investigation pits Colantuono, who was just recognized by the California State Bar as Public Lawyer of the Year, against Tam, who has been considered a staunch advocate for open government over her years of services in the community and on government bodies. And it comes as the council is set to decide whether to send SunCal packing.
Tam has been the developer’s most ardent supporter on the council, and Highsmith and Colantuono said they’re concerned she is acting on their behalf instead of the city’s. City staff have recommended the council deny SunCal’s development application, effectively closing the door on the developer.
They were followed less than a week later by accusations by SunCal’s lawyer that Interim City Manager Ann Marie Gallant deliberately worked to stall the company’s efforts, preventing them from fulfilling their obligations under the negotiating agreement. They put the city and Gallant on notice that they may sue.
“SCC Alameda has worked long and hard on this project and is now being dragged through the mud, causing potentially very substantial harm to its reputation and business as a result,” SunCal’s attorney, Louis R. “Skip” Miller, wrote.
Highsmith said that only Tam was under investigation by the city, and no other members of the council.
“It was 100 percent Lena,” Highsmith said. “There was no authorization, no investigation of any other member of council at all.”
Colantuono accused Tam of leaking confidential information to reps for SunCal and the Alameda Firefighters’ union, bloggers, this reporter and others. And he claimed Tam illegally conducted city business via e-mail when it should have been handled in publicly noticed meetings.
He thinks the grand jury should engage a little-used state statute to remove Tam from office. If a grand jury agrees, she will be barred by the City Charter from holding office in Alameda again.
“If they’re authentic, then I don’t see what’s left to be proved,” Colantuono said of the e-mails. “It’s one thing to be an advocate. It’s another thing to be a spy.”
Neither Tam nor her attorneys would not answer specific questions about the allegations, but she insisted she had done nothing wrong. Tam said she sees the investigation as an effort on the part of Johnson and Gallant to stop her from keeping city government open and honest.
She has said she believes the investigation is payback for concerns she has raised about Gallant’s contracting practices, including branding contracts Gallant awarded to two firms she had worked with in a prior city and a contract for bond business she gave to a firm run by someone she had worked for previously.
“My correspondence shows that I have diligently followed up on tough questions posed to Alameda’s Interim City Manager. They also show that I pushed for those important questions to be set on the Council’s agenda. Apparently some would have preferred that those questions go unanswered,” Tam wrote in an e-mail to The Island.
Tam is alleged to have blind-copied SunCal’s Pat Keliher on three emails, including two in which she requests a closed session to discuss Highsmith’s job performance after a March 16 meeting where the two tangled over SunCal’s exclusive negotiating agreement and one in which she requests a project description for an environmental impact report on SunCal’s proposed development.
She is also alleged to have forwarded an e-mail to Keliher that Highsmith sent to council members titled “Head’s up on SunCal blog,” which appears to talk about whether the company’s chief operating officer, Frank Faye, planned to write that the company had “cured” a default issued by the city, and about Faye’s e-mail use during negotiations. The e-mail was labeled “attorney-client privilege.”
She also blind-copied a representative of the local firefighters’ union on e-mails that included information about meetings that two ambulance companies vying for Alameda County’s contract had with local unions and Alameda Fire Chief David Kapler and a letter from Paramedics Plus, one of the companies, that said it would not be cost-effective for them to provide service in Alameda, in local firefighters’ stead, the investigation appears to show.
And another e-mail she sent to a pair of bloggers and this reporter from a financial advisor offering dirt on Gallant’s job performance in another city violated personnel confidentiality rules, Colantuono said. Another went to a local blogger with a host of confidential closed-session reports attached, he said.
Colantuono also said that e-mails Tam sent to Johnson and Councilman Frank Matarrese about the closed session for Highsmith and another to discuss the job Kapler was doing were intended to gather a consensus to take action against the pair, a violation of the state’s “serial meeting” rules.
Tam is also accused of interfering in Gallant’s job because she questioned Kapler’s job performance directly instead of going through Gallant and because she talked with financial adviser Lonnie Odom about the city’s efforts to hire a team to refinance some city bonds. Odom had contacted council members after his efforts to work with the team than won the business fell through.
Colantuono said he believes Tam violated the Brown Act by sending e-mails to a quorum of council members, in an effort to achieve a consensus on public business outside of a public meeting. And he said the fact that she sent blind copies to other council members showed she knew what she was doing was wrong. Forwarding information without expecting a response isn’t a violation of the Brown Act, two experts contacted by The Island said. But a deliberation, or an invitation to deliberate, is a violation, they said.
But he stopped short of calling some of Tam’s other alleged actions illegal. When a reporter asked if it was illegal for Tam to have forwarded an-email from a financial adviser who said he had dirt on Gallant’ past job performance, Colantuono said, “It is clumsy and foolish to use e-mail traffic to dig up dirt on employees that report to you.” He said the discovery of the e-mail chain could provide an employee who is the subject of it leverage against if city leaders wanted to fire that person.
Colantuono said Tam should not have forwarded the Paramedics Plus letter to firefighters because she is prohibited from releasing materials related to lawsuits until they are resolved. But when a reporter asked whether the document might not have been released to a member of the public if they requested it, he conceded it might be considered a public document, though “they certainly wouldn’t get the email traffic about the letter.”
The Island contacted a pair of Brown Act experts to ask whether they believed Tam’s alleged actions violated the Brown Act. Terry Francke of Californians Aware said he didn’t think e-mails Tam allegedly cc’ed to Keliher regarding Highsmith’s job performance violated the Brown Act.
“It sounds to me as if these are simply a head’ s up to her perceived ally, a ‘Here’s what I’m doing about this,’” Francke said.
Francke also questioned whether Odom’s e-mail should be considered confidential personnel information, though he said Gallant could complain that it constitutes an invasion of her privacy.
“That’s not a disclosure of personnel information,” he said.
But James Chadwick, a partner at Sheppard Mullin in Menlo Park, said Tam’s apparent e-mails to council members could be considered a violation of the Brown Act.
“The Brown Act has for a long time been generally construed to prohibit serial communications on any subject that is before, or likely to come before, a legislative body like the City Council. Those communications really shouldn’t take place outside of a public meeting. Because even if you’re not specifically trying to achieve a consensus, it’s a violation of the Brown Act,” Chadwick said. “If she’s e-mailing a majority of the City Council on matters that are before or may come before the City Council, then that’s probably a violation of the Brown Act.”
He said attorney-client privilege, which Tam is accused of violating, was put in place to protect clients, not attorneys. But it’s not clear whether Tam would be considered the client allowed to breach that confidentiality or if the whole council would have to agree.
Closed session reports as a general rule shouldn’t be released, Chadwick said – unless the person releasing them believes they are to be improperly discussed behind closed doors.
Highsmith said the district attorney’s office asked that Colantuono’s investigation be kept quiet. But she said she felt the need to reveal them as decisions about SunCal came to a head and closed-door sessions on contract negotiations with Alameda’s firefighters approached.
“I could no longer ethically avoid going into closed session to protect the city’s interest,” said Highsmith, who denied the investigation was political payback.
On July 7, a day after the Tam investigation was disclosed to the council and the rest of the public, Tam was asked to recuse herself from a closed-door meeting set up to talk about negotiations over a property on Harbor Bay Parkway and a lawsuit between the city and would-be Boatworks developer Francis Collins.
And will Tam be asked not to vote on whether to deny SunCal’s plan this coming Tuesday? “That remains to be seen,” Highsmith said.