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Submitted by on 1, September 5, 2010 – 10:40 am15 Comments

LINK: You can read District Attorney Nancy O’Malley’s letter to the city’s attorney, Michael Colantuono, by clicking here.

Updated 3:34 p.m. Tuesday, September 7

District Attorney Nancy O’Malley announced Tuesday morning that “an insufficient factual and legal basis exists” for her office to pursue a criminal investigation into allegations Tam leaked confidential information and wrongly conducted city business over e-mail, and that she won’t forward information to the county’s grand jury to seek Tam’s removal from office.

“Upon thorough review of all documentation presented, the District Attorney’s office does not find a basis upon which to open a criminal investigation into the violation of the Brown Act,” the district attorney said in a press statement released Tuesday morning. “The District Attorney (also) found there to be insufficient evidence of either criminal violations or purposeful failure to carry out the mandatory duties of office to justify initiating proceedings that would result in presentation of evidence to the civil grand jury that seeks to remove Ms. Tam from office.”

Tam said Tuesday morning that she has been “fully and completely” exonerated of misconduct accusations by the Alameda County District Attorney’s office. But Interim City Manager Ann Marie Gallant – who Tam said should resign – said the result of the district attorney’s investigation is “tentative” and that she will ask City Council members to consider suing Tam.

In a press conference and rally on the steps of City Hall attended by around 100 supporters, Tam said the accusations were part of a smear campaign undertaken by Interim City Manager Ann Marie Gallant because of political positions Tam has taken.

“Today, career bureaucrat Ann Marie Gallant’s attempt to interfere with Alamedans’ rights to representation by their chosen elected officials was exposed,” Tam said. “I fought back against these malicious and politically-motivated allegations to correct a serious injustice that has been done against this community.”

In addition to asking that Gallant resign following the investigation, Tam also asked for an apology from Mayor Beverly Johnson. Johnson could not immediately be reached for comment.

A group of local firefighters showed up to Tuesday’s press conference and rally to echo Tam’s comments, as did two dozen members of the local Asian community and local politicians.

“From the very beginning, when I heard about these allegations, I thought this was just ridiculous,” said Alameda County Supervisor Alice Lai-Bitker, who said the investigation took a tremendous emotional and financial toll on Tam. “As a resident and as an elected officials, I had a question: Why is this happening?”

Tam, who asked why she was being investigated by Gallant when questions about Fire Chief David Kapler and Gallant’s contracting practices were ignored, said the investigation into her cost the city more than $100,000, money she said could have been spent on other things.

But Interim City Manager Ann Marie Gallant said the district attorney’s findings were “tentative” and that the City Council would be considering a lawsuit against Tam.

In a press release issued while Tam’s press conference was taking place, Gallant said the council will hold a special, closed-door session without Tam this Thursday to consider a lawsuit against her. Gallant, who also accused O’Malley’s office of wrongly taking a legal argument from Tam’s attorney, John Keker, and of failing to pass that information on to the city’s outside attorney, Michael Colantuono, said the city will be “avoiding” holding closed session meetings that include Tam.

“Councilmember Tam continues to defend her conduct and apparently believes she did nothing wrong. Thus, there is every reason to believe she will continue to leak City confidential information to developers, unions and others if further confidential information is provided to her,” Gallant wrote.

Two members of the city’s Sunshine Task Force said this afternoon they are calling on Gallant and City Attorney Teresa Highsmith to resign or be placed on administrative leave as a result of the investigation. Jeff Mitchell and John Knox White said they would elaborate at a press conference Tuesday night at City Hall.

Mitchell, who is running for City Council, said he also filed a civil complaint with the Alameda County Grand Jury alleging Gallant and Highsmith committed malfeasance and misused public money in conducting the investigation. Mayor Beverly Johnson demanded Knox White step down from the task force after he was accused of receiving confidential information from Tam.

Tam was accused of leaking confidential information to then-Alameda Point master developer SunCal Companies and the local firefighters’ union. Both denied the claims. Tam was also accused of violating California’s open meeting law when she blind-copied Councilwoman Marie Gilmore on e-mails she sent to other council members to discuss city business.

An attorney working for the city had asked that a grand jury consider whether to remove Tam from office.

City Attorney Teresa Highsmith told council members about the investigation on July 6 because she said she feared it could have an impact on the upcoming vote on whether to allow SunCal to continue as Point developer, and the council voted that night to release the details to the public. The council has not held a closed session since details of the investigation were released.

Highsmith said in a later interview that the investigation came about in March after the staffer who handles Mayor Johnson’s e-mails flagged messages from Tam to Johnson that she believed violated the “serial meeting” prohibition of the state’s open meetings law. Since the meetings concerned Highsmith’s performance, she contacted Colantuono, an attorney who has worked with the city for more than a decade. Gallant said she ultimately authorized an investigation.

Colantuono later sent two sets of investigative reports to the district attorney’s office claiming Tam had violated the serial meetings law on several occasions by blind-copying Gilmore to e-mails she sent to other council members. He also claimed Tam had released confidential information to SunCal and the firefighters, both of whom the city was in the midst of contentious negotiations with.

An attorney for SunCal said the investigation into Tam was part of a “malicious campaign” on Gallant’s part to get the developer thrown out of town, and he said the accusations against her were an effort to keep Tam, who supported the developer, from voting on whether to allow them to stay. Tam ultimately abstained from the July 20 vote that effectively sent the developer packing.

Representatives from the firefighters union also denied they received anything privileged from Tam, saying the documents she was accused of leaking them were ones they already had.

The reports also showed Tam questioning management practices at the fire department and asking for a review of Highsmith’s performance in the wake of a testy public exchange between the women at a March 16 council meeting, and they include exchanges between Tam and a financier who questioned Gallant’s efforts to hand bond business to a rival firm with a partner she had once worked for. They also showed Tam released information to a pair of local bloggers and this reporter.


  • Mary says:

    Congratulations to Lena Tam. This is yet another example of Ann Marie Gallants inability to lead this city. The ICM and the City Attorney should immediately resign! How much tax payer money was wasted on this witch hunt???

  • Alamama says:

    The City should not waste one more dime on this issue by filing a lawsuit against Ms. Tam. What would it achieve? Let the voters decide in November whether Ms. Tam should continue serving on the Council.

  • EastBay2010 says:

    I assume the Interim City Manager and City Attorney will resign or will they both just not seek a contract extention and reelection? Maybe the later is the best way for them to handle it politically.

  • Jon Spangler says:

    About $100,000 has been paid to the attorneys hired by the City Attorney so far to do the investigation, according to preliminary info from Lena Tam this morning at the press conference. That’s enough to fund longer hours at the main library for a year or about 10 building facade grants, according to Tam. Any additional staff time in the City manager’s office spent on the Tam investigation that might have been spent on more pressing City business is not part of the above figure….

    Suing Tam is another smokescreen. Perhaps the City Council should sue the ICM instead for misappropriating city resources for a personal witch hunt, or for pursuing contracts that violated city guidelines and ordinances, instead.

  • ct says:

    It’s a good day when truth and justice prevail.

    District Attorney Nancy O’Malley states that the D.A.’s office “does not find a basis upon which to open a criminal investigation into the violation of the Brown Act,” but Interim City Manager Ann Marie Gallant interprets that plainly unambiguous decision as “tentative” and now wants the City to sue Councilwoman Lena Tam. This shows Gallant is clearly out of control here, as she is using public funds to fight her own very personal battle. It’s obvious that Tam’s campaign for open government has Gallant worried: What on earth is Ann Marie Gallant hiding? Gallant should just resign immediately and stop wasting the City’s time and money on even more legal action.

  • Jon Spangler says:

    Of the Interim City Manager persists in pursuing legal actions against Tam and engages in other tactics that influence our elections, is she not engaging in illegal behavior herself?

    Based on the DA’s statements today it would appear that the ICM’s and City Attorney’s actions to date might already constitute illegal electioneering by paid city staff, and any further harassment of Council Member Tam or civil actions against her clearly cross the line.

    Perhaps the honorable thing for the ICM and the City Attorney to do is to resign and use their own money–instead of the taxpayers’–to pursue their apparently personal campaigns against Lena Tam.

    Wasting $100,000 of City funds or more is already bad enough for an ICM who is so widely regarded for her financial acumen and supposedly excellent stewardship of city funds, isn’t it? (And we won’t even add in the $70,000 wasted on still-unavailable “studies” on re-branding the City of Alameda, which did not even need it.)

  • William Smith says:

    Politically motivated criminal and civil charges are becoming part of the modern campaign arsenal. Does anyone know the details of the Democrats suit against a Republican opponent for governor of either the State of Washington or Oregon in this election? And in a previous election?

    Ms. Gallant appears to be keeping up with the latest political trends! Or … if the remaining 4 City council members vote to move forward with the civil action against Ms.Tam … maybe we should stop and consider whether or not someone or someones other than Ms. Gallant is or are behind the charges.

    Even if the Council doesn’t vote to proceed with a civil suit, it is still possible that members of the Council at least gave tacit approval to Ms. Gallant’s original action against Ms. Tam.

  • Jon Spangler says:

    It is clearly the employment status of City Attorney Terri Highsmith and Interim City manager Ann Marie Gallant that should be “tentative” now.

    Their immediate resignation or firing would be more appropriate than paid administrative leave: they have wasted $100,000 (and counting) of our dwindling city funds so far, tilting at windmills and engaging in guerrilla electioneering against a duly-elected city official whose only sin was to oppose them…

  • afd ff says:

    Time for some major changes at city hall and the fire department are needed now.

    Thanks Ann Marie, Terry, and Dave for ripping-off the public!

  • Kate Quick says:

    Memo to the ICM and City Attorney: When you have dug a hole you cannot get out of the first rule is “STOP DIGGING!”

  • SHF says:

    Question: Is it legal to exclude Lena Tam from closed sessions? She is an elected member of the City Council. If she then discloses matters discussed in closed session, she would indeed be liable. Seems enough disincentive to do that. She is too smart.

  • Mike says:

    Okay, so Lena Tam is cleared and still Gallant wants to pursue a city lawsuit against her? What’s up with this? From the secret investigations, over-eager allegations and testy comments that have already come from Gallant, you’d get the impresion that the city council works for her, but by law it’s the other way around. That this fiasco is politically motivated and personal has become obvious. To the other four council members: What exactly does it take for you to take action?

  • DaveL. says:

    Frequently left out of this debate is the fact that:


    Beverly Johnson, Doug DeHaan and Frank Mataresse, how do you stand on this issue?

    Yes, you three voted for Gallant, do you support her actions?

  • Alameda Citizen says:

    This whole situation is terrible for Alameda.

    The city should get better legal representation and advice, and should find ways to work together rather than simply try to remove a dissenting voice. The mayor, city counsel and city manager need to find a way to mend this breach and get back to business.

    Ms. Tam needs to exercise vastly better judgement in the future. And while copying special interest groups on internal government emails didn’t turn out to be illegal this time, it is absolutely unethical. Ms Tam has the very difficult task of proving herself trustworthy in the future.

  • ct says:


    It does seem entirely wrong for Interim City Manager Ann Marie Gallant to exclude Councilwoman Lena Tam from closed-door sessions, especially when Gallant intends to railroad civil action against Tam despite the district attorney’s decision fully exonerating Tam of Gallant’s accusations. This looks like yet another display of Gallant’s abuse of power, which needs to stop now.

    Mike and Dave L.,

    You’re both right; Gallant is supposed to work for the City Council, but it appears that Mayor Johnson, Vice Mayor deHaan, and Councilman Matarrese take orders from Gallant. This has to change.

    Gallant has been using our taxpayer dollars to fund her personal vendetta against Tam. The City Council must put a stop to Gallant’s ongoing persecution of Tam immediately. This means Johnson, deHaan, and Matarrese’s support of Gallant and her battle against Tam and open government has to end, and they should ask for Ann Marie Gallant’s resignation.

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