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Submitted by on 1, July 8, 2010 – 4:55 am17 Comments

On Tuesday and Wednesday, The Island reported that Councilwoman Lena Tam is facing accusations of officials misconduct for allegedly leaking confidential information to SunCal, the firefighters union and others, and for allegedly violating state open meetings law by emailing groups of council members to discuss city business. The Alameda County District Attorney’s office has been asked to pass the case to a grand jury so they can consider whether Tam should be removed from office. Tam has denied the claims.

Prosecutors contacted by the city’s attorney were both out of the office and unavailable for comment Wednesday.

We’ve got electronic copies of the reports attorney Michael G. Colantuono submitted to prosecutors on May 26 and this past Friday, July 2 (it’s attached to the second part of the original report, since this seems to be the only way I can get it to open properly). And you can check those out below. In the meantime, here’s a quick update on late-breaking events.

On Wednesday night, Tam was asked to recuse herself from the council’s closed session meeting as a result of the allegations and when she declined, the rest of the council opted not to conduct any of its closed session business. The council had been slated to discuss a lawsuit between the city and Boatworks developer Francis Collins and the price and terms for transfer of a piece of property at 2221 Harbor Bay Parkway that is owned by SRM Associates.

On Wednesday night, Mayor Beverly Johnson also called on SunCal rep Stan Brown to return confidential communications she believes the company received from Tam. She said accusations that Tam leaked confidential information to SunCal’s reps could damage the company’s efforts to be seen as trustworthy by the community.

Brown said he has never personally received any e-mails from Tam and that the allegations have not yet been proven.”In talking to my folks, we strongly believe that nothing inappropriate has occurred,” Brown said.

Earlier in the day, both Tam and local blogger and political activist John Knox White, whose resignation from the city’s Sunshine Committee was demanded by Johnson in the wake of accusations that he received confidential documents from Tam, released statements saying they’ve done nothing wrong.

“I will continue to speak out and ask questions on behalf of the people of Alameda. It is unfortunate that the Interim City Manager finds that objectionable,” wrote Tam, who said there’s nothing to the accusations.

“On Tuesday night Interim City Manager Ann Marie Gallant, City Attorney Teresa Highsmith and Mayor Beverly Johnson  released defamatory political hit pieces against me, both aimed at damaging my reputation and credibility,” Knox White wrote. Given that the City has not alleged a single act of misconduct against
me and the fact that the city’s reports show me correctly pointing out Brown Act violations in the recent agendizing of closed-session city council meetings by the City Attorney and Interim City Manager, I’d suggest this is a political vendetta by a waning politician, rather than a meaningful call for action.”


  • gillico says:

    John Knox White has a curious set of ethics. His self-insertion into the local political scene will not be missed.

  • Incredulous says:

    So it looks like there will be no closed sessions on the part of the Alameda City Council until Tam is gone.

    That means three things, as I see it:

    The City will continue to operate, with the Interim City Manager and City Attorney in charge.

    There will be no vote to “extend” the expiration of SunCal’s exclusive negotiating agreement, because the Council will be unable to discuss the potential consequences of litigation/bankruptcy by the SunCal entity which is the actual party to the agreement.

    The City Attorney, acting alone, has the authority to defend the City if SunCal files a lawsuit or a bankruptcy, because courts are so slow, nothing meaningful will happen by November. Superior Court judges are smart enough to know they cannot issue any orders that the City exercise its police powers one way or another. Most bankruptcy court judges also know that fact, but if the SunCal entity which is a party to the exclusive negotiating agreement finds its way to a bankruptcy court judge who doesn’t know that principle, the City Attorney can educate the judge on that fine point of law without any closed session discussion needed.

    All’s well that end well.

  • Barbara Thomas says:

    About those who were blind copied confidential material, including JOHN KNOX WHITE, KATE QUICK, COUNCILMEMBER MARIE GILMORE (An attorney), LAUREN DO, MICHELE ELLSON, PAT KELIHER (SUNCAL) and too many others to list: Just because there aren’t any allegations against such persons at this time is meaningless. Outside counsel argues that the mere fact of sending blind copies to individuals reflects TAM’s knowledge and intent of the illegal nature of her actions. There is a corollary. Those who received those “blind copies” either knew, as in the case of GILMORE and KNOX WHITE, on a city committee or should have known of the same nature of what they were receiving. SO what did any of them do about it? Outside counsel had no authority to either investigate through the use of subpenas or search warrants. The District Attorney does have these powers. Since the DA just received this communication requesting investigation and action, it is fair to assume that the process has just begun. And the taxpayers in Alameda are ultimately going to foot the bill for every harm caused by these acts, both on defense and prosecution, and damages incurred by third parties that TAM’s actions caused.

    News agencies can generally assert privilege and safeguard their “tips”. With such numerous and widespread violations that may not work. There may be causes of action such as RICO violations that will come into play. And it will certainly undermine any “news” agency’s credibility to claim privilege in this case. They apparentely were part of the problem which gave TAM the confidence to continue her practices.

  • Dennis Green says:

    What is fascinating to me is what the fate of the bloggers will be. As allegations, accusations and perhaps official charges unfold, they may be increasingly on the defensive, for Alameda residents, including their readers, will take a keen interest in their involvement in these matters. Not only will their credibility come under scrutiny, (as John Knox-White’s integrity is already being questioned), but they will find it more difficult to obtain advertising support from local businesses that won’t care to be associated with the emerging scandal. Local print news outlets may also disengage as Tam’s fate and actual actions, even, perhaps, her motives become more clear in the light of the District Attorney’s investigation. Such a winnowing, in a town this size, can be very rapid indeed. Again, my only advice to the bloggers: Be candid.

  • Incredulous says:

    I took the time to read all of the documents The Island has posted, which were attachments to the complaint letters to the District Attorney. The most interesting text in those documents is Paragraph 5 of Teresa Highsmith’s Declaration.

    In essence, Paragraph 5 describes the circumstances under which Councilwoman Tam was making or attempting to make “admissions into the public record” which would be used for SunCal’s benefit, and against the City of Alameda, should there be litigation by SunCal against the City.

    Politics are politics, and everyone is free to engage in them. However, when a city council person makes public admissions, during an open Council meeting, against the city’s interest in potential litigation, what the city council person is doing is breaching his/her fiduciary duty to the public purse, i.e. setting up the city to lose in litigation.

    Litigation between a city and an aggressive third party costs cities in three ways: First in hundreds of thousands of dollars in attorneys fees and court costs for the city defending itself; Second in monetary damage awards against the city; and Third in attorneys fees awards forcing the city to pay the opposing party’s attorneys fees.

    It doesn’t matter whether the case is about land use, police brutality, breach of contract or ‘law breaking’ against a city employee. When a city council person makes admissions against a city’s interest during open session, the public gets to pay, through loss of city funds which could be used to provide city services. Theoretically, if the “damages” to the third party are great enough, and the city is poor enough, the city has to raise taxes, assessments and fees to cover the shortfall, or sell off city assets.

    Bottom line, it doesn’t matter about you politics or your opinions, when you are on a city council you are supposed to keep your mouth shut, in terms of making comments which will hurt your city, economically, in potential litigation.

    That was Teresa Highsmith’s concern, in Paragraph 5 of her Declaration, about Councilwoman Tan reciting text from a script prepared by SunCal, to pepper the public record with admissions against the City of Alameda’s economic interest…let alone the political interests of its voters.

    I’ve seen this situation before, with very ugly consequences:

    In the 1980’s the City of Simi Valley voters adopted a slow growth measure, put on the ballot by its Council. There was (and still is) a very mercenary, almost ambulance chasing plaintiff’s law firm who represented developers, and who went around suing cities over “civil rights violations”, with developers paying his firm a high hourly rate, with a goal of overturning slow growth measures, invalidate General Plans and getting monetary damages.

    A developer named Griffin who did a lot of business in Simi Valley, and he was used to getting his way. Griffin got very angry at the Council and very angry at the voters, so he filed two separate lawsuits against the City, to invalidate its General Plan and the slow growth measure, and alleging that in refusing to approve the high density residential development he wanted on a particular property the city had unconstitutionally taken his property.

    Shortly after the lawsuits were filed, a smart, big-mouth delivery truck dispatcher, who was a City Councilman, regularly recited incredibly sophisticated commentary on the merits of Griffin’s claims into the public record. He did it again and again, to the point that everybody figured out he was peppering the record to affect the outcome of the lawsuits.

    When the city’s attorneys fees, in defending itself against the developer, had reached more than $1 Million that big-mouthed councilman suddenly announced that he was moving to Temecula and resigned. Locals investigated, and discovered the ex-councilman living in a home whose cost was obviously far more than the councilman could afford on his pay as a delivery truck dispatcher.

    The developer lost at trial, appealed, and the casesfinally went away, but the residents of Simi Valley lost about $2 Million in services because the city had to pay an “expert takings claim litigator” to defend the city’s pocket book, let alone the voters’ will.

    That was the first time I saw a city council person sleeper agent pepper the public public record for a developer’s economic benefit in litigation.

    Then, in the late 1990’s and early 2000’s the City of Santa Clarita had a City Manager, who was always making irrational deals (or at least trying to) with his developer pals, some of whom he played poker with every week.

    That City Manager made an incredibly stupid “deal” for some seeming free land to build a tiny portion of a new road. In return, the City Manager promised concessions to the developer/land owner which violated CEQA, the Brown Act, and city ordinances. On top of that promise, he didn’t even have the authority to make the promise without the Council’s consent, which they never gave.

    The result, after roughly 8 years of litigation, was that a jury awarded the developer/land owner $22 Million for its tiny piece of land. That City Manager whose motives were questionable had disappeared, but the comments on the record, at prior Council meetings by the City Manager and his two assistants pretty well sunk the city’s ship when the jury heard them.

    The City of Santa Clarita didn’t have the $22 Million in cash on hand. They had to borrow the money by mortgaging their city hall, and deposit it with the court, in order to be entitled to pursue what will probably be a fruitless appeal.

    These are just two examples of how a public official who is a “sleeper agent” for a developer destroy a city’s bank account and its ability to deliver services to its taxpayer constituents.

    As shown in the transcript of the Council meeting matching Paragraph 5 of Highsmith’s declaration, what Lena Tam was trying to do was pepper the public record for SunCal’s benefit, using scripted text. That action by Tam is more than enough to justify her being outed as a sleeper agent for SunCal.

  • VG says:

    Here’s the SFGate coverage, which makes it clear that the allegations against Tam are real and very serious, unlike the Sun coverage. This is not a politically motivated attack by any means, this is real and obvious malfeasance on Tam’s part.


    Probe: Alameda official secretly aided builder

    An Alameda City Council member leaked confidential information to a firm hoping to develop the former Alameda Naval Air Station site, according to investigative findings that the council has referred to local prosecutors.

    Lena Tam, a councilwoman since 2006, handed over privileged information in e-mails to officials of SunCal Cos. of Irvine, the investigation found. SunCal is negotiating with the city to develop the site of the former air station, now known as Alameda Point, at a cost of hundreds of millions of dollars.

    The leaks potentially undermined Alameda’s legal and negotiating position with SunCal, Michael Colantuono, an outside attorney hired by the city to investigate the councilwoman, wrote in a report to Alameda County prosecutors. The nature of the information was not disclosed.”

  • alameda says:

    Why the 30-day policy just for ICM?

    From http://eastbayopengovernment.blogspot.com/

    This is really twisted. And the further irony is that the ICM’s own e-mail trail gets destroyed for no good reason after 30 days, per city policy.

  • alameda says:

    Re: “this is a political vendetta by a waning politician …”

    Good one, JKW!!!

  • gillico says:

    As I keep saying, Councilwoman Tam is not the only one worthy of close scrutiny at this time. ICM Gallant’s practices need to be looked at just as closely for impropriety.

    We are not involved in a situation where one camp or the other is wrong and pointing fingers; it is fairly clear and quite possible that both camps have committed acts worthy of investigation if not prosecution.

  • Barbara Thomas says:

    So far the only evidence presented is a multitude of emails of confidential information sent by TAM. Which breaks many rules and laws. I have seen no such thing concerning the City Manager. Nor have I seen any policy – written or otherwise – that the City Manager violated anything by awarding contracts to others with whom she had a previous experience. She works for the City Council. And if she violated the letter of any written policy, rule or regulation covering entering into contracts, or entered into contracts with a business listed on her conflict of interest disclosures, then the City Council has the right to discipline for that. And as their employee, and a personel matter, that would be done in closed session. So far all I’ver seen are unsubstantiated complaints by two persons who felt for some reason that they should have been allowed to bid on contracts that were awarded without bid. This City is too large, the problems too many for the ICM to micro-manage each dollar. If the ICM didn’t violate the existing process, and that just isn’t enough for some, the proper procedure is to ask the City Council to implement tighter controls. My goodness, it is time to get over this one. If the ICM violated existing written rules concerning the awarding of contracts, ask the Council to punish her. And ask TAM to blind copy you with the confidential supporting information.

  • Incredulous says:

    Gillico, could you please give us the California code names and their section numbers which you think have been violated?

    That way the independent newspapers and blogs focusing, even half-heartedly, on Alameda, could look for facts to tie to your code section citations.

    Without such code section numbers the claim that “both camps have committed acts worthy of…prosecution” are hard to pin down.

  • gillico says:

    I’m not a lawyer. However I am sure it is not ethical to practice nepotism, cronyism or whatever -ism you want to call it that ICM Gallant is practicing by handing out contracts without review to the embarrassment of the city.

    Take the case of the branding fiasco. I do not feel my tax dollars are well spent identifying “homogeneity” as something I and my neighbors take pride in as a leading quality of this City. To find out that this firm is someone ICM Gallant has a previous relationship with, and said firm proved with the work they delivered that they were less qualified than in-city candidates who were never notified that such a contract even existed is something that warrants investigation, do you not agree?

    As for Councilwoman Tam, the paper trail of her wrong-doing is pretty clear in the filings from City Hall you claim to have so thoroughly read.

    At this point, I’ll leave anything further to lawyers and D.A.s and City Attorneys who are far more capable and learned on these matters than I.

  • concerned citizen says:

    Why would Lena Tam BCC Pat Keliher on an email? Regarding ANY subject- Seems pretty damning to me…

    Didn’t Lena Tam try and sneak her campaign manager Rob Bonta onto the Hospital Board back in 2006? (that effort was torpedoed, if memory serves, though he was later appointed).

    I hope for Rob’s sake that he isn’t BBCing Pat Keliher on any emails….

  • The Alameda City Clerk relayed that all city E-mails can be deleted after 30-days, and this ordinance was enacted in July of 2001. E-mails are not required to be archived. As far as I am aware, this includes the ICM as well as all other city officials.

    I’ve searched the municipal code and city council agendas from June 2001, and have found no trace of this ordinance. It’s my opinion that correspondence from key leaders in the government agency, such as the elected officials, city manager, department heads, etc. should be saved for a minimum of two years. I wonder if the California Secretary of State office is of the same opinion?

  • ct says:

    Gallant became interim city manager in April 2009. Since then, she’s:

    • Had her “Civic Center Vision” revitalization plan produced without public input

    • Tried to increase her compensation without review via the City Council’s consent calendar

    • Recommended that the City Council enact a badly written campaign finance reform ordinance that would give an advantage to incumbents running for office

    • Handed former out-of-town colleagues city contracts without giving local businesses an opportunity to participate in an open bidding process

    • Hired an outside attorney to secretly root through the emails of a council member in an effort to unseat them

    Tam has advocated for more transparency in government so that corrupt impulses don’t have a chance to manifest themselves. Because Gallant prefers to operate without oversight behind closed doors, it seems pretty obvious what she’s doing to Tam.

  • Jon Spangler says:

    Thanks, ct, for the “digest” of some of the ICM’s mis-steps since she became Interim City Manager. As you have pointed out, the transgressions of the ICM are not fabrications and not without substance.

    At a Council meeting last month, when presenting financial consultants to handle a multimillion-dollar bond refinancing process, she failed to disclose up front for the record that she had once worked for the consultant(s). She also failed to obtain multiple competitive bids for a service contract worth about $196.000 in all. (It was divided 70-30 by two consultants, but the 70% portion, at $132,000, was still almost twice the maximum that the ICM is allowed to spend on a single contract without competitive bidding, according to city ordinance.

    Former Vice mayor Tony Daysog “outed” the ICM’s illegal behavior during public comments and deserves full credit for alerting the public to her transgression, which Lena Tam called her on as well. Councilmember Tam also challenged the ICM for not disclosing her past business connections, which represent an obvious potential conflict of interest. At that point, an embarrassed and caught-red-handed ICM could only protest that no one should question her integrity and that the business relationship was “a long time ago.”

    Sitting in the audience, I was astounded that any professional city manager would make such mistakes of omission or commission: not knowing what the applicable laws and limits for competitive bidding on city contracts are is a serious gap in her knowledge or her due diligence, and failing to disclose a potential conflict of interest represents a serious ethical shortcoming. And, as ct has pointed out, they seem to represent a pattern of abuse, misbehavior, lapses or worse…

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