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Attorney: Let AG take Tam case

Submitted by on 1, September 27, 2010 – 4:45 am20 Comments

The attorney hired by top city officials to conduct a leaks investigation into Councilwoman Lena Tam told Alameda County District Attorney Nancy O’Malley he thinks she should allow Attorney General Jerry Brown or another outside party to consider the case.

“(Y)ou should be aware of some concern in the Alameda community that your office ought not to render the final judgment in this matter and that the appearance of justice counsels that you abstain and allow the Attorney General or another disinterested party to determine what justice requires here,” attorney Michael Colantuono wrote in a September 20 letter to O’Malley.

In his four-page letter, Colantuono accused O’Malley of having a “personal and political” relationship with Tam, one he said he believes could have guided her office’s decision making in the case. He noted that Tam and a host of Tam supporters who were not connected with the case had endorsed O’Malley in her recent run for the district attorney’s office, and he claimed O’Malley had even picked up Tam once when the councilwoman experienced car trouble.

O’Malley said Friday that “quite a bit” of what Colantuono included in his letter is false, including the car story, and she denied having a personal relationship with Tam. She said her office’s investigation into Colantuono’s accusations was handled by two senior attorneys and that she wasn’t involved.

“Though he makes the request that I recuse myself, at this point the investigation is closed unless he presents more evidence. And he hasn’t,” O’Malley said.

“I want the community to know that my office and I personally take this very seriously,” O’Malley added, saying she wouldn’t allow a personal relationship to guide the outcome of an investigation even if one existed. She said she is drafting a response to the letter which will be public if Colantuono decides to release it.

“In my 26 years in the district attorney’s office, I really have never seen a situation where someone makes something so personal and puts it in the media,” O’Malley said. “I think that’s just his style.”

In addition to alleging personal and political connection may have played a role in the outcome of the Tam investigation, Colantuono, who said he doesn’t question the ability or integrity of O’Malley and her staff, accused O’Malley’s office of leaking advance word of their investigation to Tam.

Tam also denied she has a personal relationship with O’Malley, saying the letter is “rife with baseless accusations.”

“The letter is filled with misinformation about the law and the facts, and appears to be another attempt to remove me from office on the basis of nothing but false rumors and innuendo,” Tam wrote in response to an e-mailed request for comment.

Tam called Colantuono a “hired gun” brought on by Interim City Manager Ann Marie Gallant and City Attorney Teresa Highsmith to try to remove her from office due to her questions about “important city matters,” including a review of Highsmith’s job performance she requested the day the investigation began. And she said it’s “unfortunate” Colantuono “decided to publicly and baselessly malign the District Attorney when the investigation didn’t end in serving the political goals of those who hired him.”

“This is a political smear campaign that was financed by the city’s taxpayers,” Tam said.

City officials said Friday they didn’t have a response from the attorney general’s office, which was copied on Colantuono’s letter.

The district attorney’s office announced on September 7 that they were not going to pursue a case against Tam, citing a lack of evidence. Colantuono had asked that a grand jury look at his accusations to consider removing Tam from office.

The City Council announced later that week that they wouldn’t pursue a civil case against Tam, though Colantuono said he would ask O’Malley to reopen the case. Some members of the council asked that the matter be dropped, but he said that the charter grants only the city manager the right to make that decision.

This is not Colantuono’s first high-profile exchange with a district attorney’s office. When he was city attorney for La Habra Heights in 2003, Colantuono got into a written scuffle with the Los Angeles District Attorney’s Office over a warning letter they sent the city alleging Brown Act violations.

In an August 29, 2003 letter, Colantuono accused Assistant Head Deputy District Attorney Susan Chasworth of causing community strife and of failing to talk to city officials before issuing the warning letter. He questioned Chasworth’s facts and her interpretation of the Brown Act and asked her to withdraw the letter.

Chasworth declined, and then District Attorney Steve Cooley (who is also a candidate for state Attorney General) sent a follow-up letter saying he backed Chasworth’s handling of the case.


  • Yet more fiction, generated by a consultant with a years-long relationship with our City staff. When will Johnson, deHaan, and Matarrese decide enough is enough and demand an end to these shenanigans that are closing in on the $100K mark. The case is closed, and yet the council majority continues to hope the political damage caused by this outrageous behavior will work in their favor in November. Truly shameful.

  • david burton says:

    Coincidentally Lauren Do has a piece about some purchases by the ICM that may be appropriate here. Maybe the ICM should purchase a couple of new motivational posters for herself and Mr. Colantuono: http://www.despair.com/persistence.html

  • Mike K. says:

    This attorney flack is sounding like a broken record and racking up more and more charges for his time at taxpayers’ expense. C’mon, the longer this goes on, the more he gets paid. The DA said there is nothing to prosecute, it is ridiculous that this guy wants to now take it to the AG. Get rid of this flack and take Highsmith and Gallant with him. Nothing but a waste of time, more needless controversy and a waste of our tax dollars.

  • L Baroni says:

    I find it fascinating how JKW calls this fiction – when HE violated an oath he made as a member of a Commission – and yet he expects the mayor and two council members to make demands?

    Obviously he was not paying attention during the explanation of the chain of command on such issues. This topic is under the authority of the ICM and CA. The Council has no decision-making authority on this. Also, if JKW goes back and watches the end of the tape for the special council meeting on 9/9, the motion made was to wait until a piece of correspondence was reviewed by Colantuono.

    Truly shameful? I find it hypocritical that JKW has not apologized to us (the public) for violating a trust also! Perhaps he should resign his seat on the Sunshine Task Force to exhibit his honorable behavior.

  • EastBay2010 says:

    Is the City of Alameda hiring? They obviously have a surplus of money that they don’t know what to do with.

  • Marie says:

    JKW, I do not see any reference in this article that suggests that those three councilmembers are tied to furthering this investigation. Let’s try to stick to the facts and not spread wishful thinking around.

  • David Howard says:

    The District Attorney’s office refused to release a copy of their dismissal-without-an-investigation letter, citing privilege as a matter of law enforcement action, even after said letter was already leaked to and published by The Island.

    Not only that, the DA’s office, in their refusal letter, cited the URL for the letter on this website, saying, in effect, – there’s the document if you want to have a look at it. Who’s using the media?


    As for presenting or collecting evidence, Colontuono has been very clear that he believed he presented a strong enough case, prima facie, for the District Attorney to open an investigation and collect evidence – issue subpoenas, interview witnesses, collect records, etc. But it’s clear that the D.A.’s office did nothing of the sort. There was no investigation by the D.A.’s office, just a 3-way exchange of letters from the City’s and Tam’s attorneys.

  • Marie, unfortunately there’s nothing “wishful” here. Actions speak louder than words.

    The City Council continues to control the levers, the City Attorney is legally only allowed to spend $36,000 without Council approval. This project is well over that, and is coming out of her budget. The council could, but has chosen not to, pull the financial plug at any time.

    While the City Attorney is claiming that the ICM is all powerful and nobody can stop her, this is a legal opinion (as in not a fact) that is self-serving. The ICM has the authority to investigate issues, could certainly argue that she legally pursued that in paying almost $20K for software to read Tam’s emails. In sending off a filing to the DA and then sending off insulting, combative, prosecutorial emails, the line was crossed.

    There were a number of strategies available to the Ann Marie Gallant and Teresa Highsmith, they chose the nuclear option and it’s biting them in the behind.

    There have been discussions about stopping this by Tam and Gilmore. DeHaan and Johnson presided over a meeting in which Johnson read a 10-minute script about Tam and introduced Colantuono to speak after the council had announced their intention not to move forward.

    At the end of that, Matarrese gave direction to allow Colantuono to continue his actions, even after the DA had said the case was closed.

    If three or four members of the council made it clear that they wanted this to stop, it absolutely would. Gallant isn’t going to pursue a strategy that puts her job in jeopardy, and the council has all the legal authority it needs to put an official stop to things if she’s unwilling to take council direction, including putting Gallant and Highsmith on administrative leave if it comes to that.

    Who is overseeing our City Government? There are currently three clear votes to allow this to move forward as it continues to do so, when that math changes, this waste of money will stop.

    City Attorney Highsmith has issued erroneous opinions on many issues this year, why would her opinion on a self-serving witch-hunt be any different?

  • Marie says:

    The only sitting councilmember who is competing for Lena Tam’s seat this November is Mayor Johnson.

    Still, let’s trust the legal system to run its course and quit trying to attach unfounded motivations to our elected officials.

  • This unholy mess goes to the root of why I am running. We have a rogue Interim City Manager and City Attorney at the controls and clearly their so far failed attempts to destroy Lena Tam are not over. They’re not only circling the wagons over at City Hall, they are reminding people that they too can become the targets of investigations if you dare question their motives.
    We need new leadership on the council — leadership that will stand up to bullies and who will hire competent, rational and publicly-minded senior staff members to run the day to day affairs of our great city.
    Johnson, who is inexplicably asking voters for another four years (could it be to better position herself for a run for Sacramento in 2012?), is secretly delighting in this disaster which is making our city the laughingstock of Northern California. Doug deHaan, the man who engineered the infamous Sept. 9 Kangaroo Court council meeting, is eager for this political vendetta to go on as well. He wants a known political enemy in Tam off the council.
    My campaign is straightforward and to the point — we can and must do better. My campaign is about putting this government back on its rails and returning the controls to you, the residents of Alameda.
    We need to kick the old “leadership” and their staff henchpeople to the curb and hit the master reset switch. After all, how many more AP&T debacles, botched Alameda Points, demonized unions, covered up lawsuit settlements and unconstitutional Fourth of July Parades do we want to put up with here? When, exactly, will enough be enough?

  • Adam Gillitt says:

    Really, Jeff?

    From your own campaign website:

    Q: OK, tell us more about your consulting business. Who do you count among your clients?
    A: Even though I’ve only been ‘Open for Business’ a few months I am proud to say that I have provided consulting advice and strategy, formally or informally, to two of the four candidates running for mayor and several within the field of candidates who are seeking seats on the City Council, including our present Mayor Beverly Johnson. I have also recently served as a paid sub-contractor to Singer Associates of San Francisco. Singer hired me in late April to assist them in helping SunCal, the Irvine company seeking to become the master developer at Alameda Point.

    Q: What did you do as a sub-contracting consultant for SunCal?
    A: I assisted Singer and the SunCal folks in reaching out to the greater Alameda community as they sought an extension to their exclusive negotiating agreement. As one of the few Alameda-based consultants helping the company, I worked hard to help the company understand the importance of trying to mend post-Measure B fences and of the importance of integrating into the greater Alameda community. I also worked hard to convince them of the importance of stepping up their philanthropic efforts to Alameda institutions. I am proud to have convinced SunCal officials to provide $20,000 to the Yes on Measure E school parcel tax measure. I was also the architect of other larger philanthropic giving plans to Alameda charities which were unfortunately put on hold July 20 when the City Council voted reject SunCal’s request to have their ENA extended.

  • Adam Gillitt says:

    Michele, the link for your reference, or if you want to hotlink it is:


  • ct says:

    If Attorney General Jerry Brown also determines that Michael Colantuono’s so-called evidence does not warrant further investigation, who will Mr Colantuono go to next?


    Did we not already “trust the legal system to run its course” when awaiting the district attorney’s decision? It seems Mr Colontuono will continue to whine about this legal system while he takes his case to higher authorities in a fruitless (but lucrative) quest to hear a decision he likes.

  • Jon Spangler says:


    1. The public record – especially the public statements by Mayor Johnson – is full of sufficient “evidence” to discern motives and/or improper actions by our top elected official. (Just listen to her 10-minute speech – read from a prepared text:


    She frequently called Councilmember Tam “guilty” during Council meetings prior to the DA’s decision, which is highly improper for an officer of the court, as she is.

    2. Mayor Johnson, Vice-mayor deHaan, and Councilmember Matarrese allowed Michael Colantuono’s extended diatribe to proceed on September 9 (I was there). This was despite the fact that all 5 Council members had indicated prior to the public comment period that they would vote against proceeding with civil action against Lena Tam.

    Actions speak louder than words, and the public record speaks for itself. This whole sad affair has, indeed, been a politically motivated witch hunt that has wasted time and money as well as destroying integrity.

    L Baroni,

    John Knox White (JKW) has done absolutely nothing wrong. Receiving an email is not a crime, nor is it a violation of the Brown Act. (He never opened it, BTW.) There are many of us in Alameda who would do well to follow John’s example of dedicated public service despite official criticism and persecution for having served his community well.

  • Barbara Thomas says:

    Just because the DA chose not to waste taxpayer funds prosecuting TAM et. al. does not mean that a crime was not committed by the leaking of 31 confidential emails to those unauthorized to receive them. That includes JKWhite, the League’s Quick, SUNCAL, the firefighters negotiating team and many others. The blind copied emails to Gilmore constitute a prima facie case of a violation of the Brown Act which niether TAM nor GILMORE chose to report. These were blatant misuses of power and breaches of their fiduciary duty to their constituents.

    In case no one has noticed the DA has to prosecute all the murders, rapes etc. in the entire Alameda County. Cases which most surely have a great amount of evidence. Why bother with 31 low level misdemeanors when Oakland alone had 109 murders in 2009, with only a 49% closure rate? The taxpayers of Oakland have just suffered 80 police officers being laid off. We are talking quality of life issues in other surrounding cities that are affected by the choices of the crimes the DA choses to prosecute.

    And of course the City would not sue TAM initially, because that would place candidates running for office in the position of voting to sue a fellow candidate. Very politically incorrect.

    Everyone is waiting to see if TAM survives this disasterous chain of events or pays the ultimate price with the voters. That is a compromise result that would leave the City in the best position possible. Without TAM, and if GILMORE loses in her race for Mayor, SUNCAL, will lose two of its oars in the water. TAM would have to bear the costs of her own legal expenditures, caused by her own poor choices. As yet, neither the statute of limitations has run on the misdemeanrors, not the time for the City to file suit.
    Jerry Brown is too busy to prosecute anyone for anything at this time. If COOLEY is elected AG, TAM could easily face criminal charges for her conduct.

  • L Baroni says:

    You say JKW received the email and didn’t open it and “he did absolutely nothing wrong.” Wait a minute. It was an email marked confidential, right?! Why didn’t he do the right thing and report receiving it? Stop putting blame on the ICM and CA. All the finger pointing in the world won’t change the truth.

  • C’mon, Adam — you’re showing your desperation my friend. Buck up, ol buddy — you’ll be OK. I’ve never made any attempt to hide what I do … I’m a communications consultant. It’s how I put food on my table and keep the rent paid … That FAQ has been on my campaign site since the day I launched it in mid-August. That same week I was careful to make reference to my FAQ in a lengthy and detailed press release that I sent to the entire Bay Area news media, including Michele, Peter Hegarty, Connie Rux and folks at the SF Chronicle. You’ll also see, if you look closely, that I note that I got into a verbal altercation with one of SunCal’s stupid petition signature gatherers outside of Trader Joes, that I voted against Measure B and I think that SunCal made a ton of serious mistakes along the way in dealing with the Alameda community. Since then I have said publicly many times now that SunCal has worn out its welcome in Alameda and that I cannot see a situation where we, as a city, would voluntarily do business with them again.

  • Adam Gillitt says:

    Getting in bed with SunCal after Alameda voted them off the Island is one thing, Jeff, and says plenty about your ethics and leadership and listening skills, or lack thereof.

    Throwing your hard-earned clients, like Beverly Johnson, under a bus for your political gain, is entirely another, and says quite a bit more about you and your lack of fitness for City Council.

  • ct says:

    Ms Thomas,

    In spite of outside attorney Michael Colantuono’s best efforts to argue otherwise, it was established that the emailed information in question was not “confidential” or “privileged.” And Brown Act guidelines actually encourage the use of the bcc function:

    “Email communications between a quorum of a legislative body to develop a collective concurrence is also an illegal serial meeting. (Section 54952.2(b).) To avoid this problem, exercise caution in the use of email. For example, when staff emails a quorum of a legislative body, place the members’ email addresses in the ‘bcc’ address line. This will help to avoid an inadvertent violation of the Act via use of the ‘reply to all’ function.”

    If your (and Interim City Manager Ann Marie Gallant’s) desired election scenario plays out and Gallant’s City Council majority holds, Alameda will continue to suffer dark years of incompetence, waste, and economic stagnation.

    Ms Ellson,

    Yes, the Steve Cooley “who tangled with Colantuono when he was in La Habra in 2003” is indeed running for attorney general.

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