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The Island Comments: Inside the sausage factory (updated)

Submitted by on 1, September 23, 2010 – 5:00 am16 Comments

Quick update: Thanks to blogger Lauren Do, who forwarded me a copy of the software invoice I had sought from the city. It’s at the bottom of this post (click the link if it doesn’t show).

This week brought with it what was for me a somewhat surprising debate over the content of one of my news stories (“Gilmore Seeks Accounting on Tam Investigation,” September 21). At issue, specifically, was this paragraph:

Invoices from attorney Michael Colantuono obtained by The Island through a public records act request showed that Colantuono billed the city $77,095.16 for “general services” performed between the months of March and August. Highsmith would not reveal the specific amount of money Colantuono charged for his work on the (Tam) investigation, claiming the information was protected by attorney-client privilege and exempt from public disclosure requirements.

As a reporter, I feel it’s my obligation to provide you the most accurate coverage possible, and to be accountable for what I put down on the page. And in that vein, I’d like to offer a peek inside the sausage factory, as we in the news biz lovingly call it, to anyone seeking some clarification on what I reported and how.

Long story (maybe not so) short: On September 8, I e-mailed a public records act request to the city seeking invoices from attorney Michael Colantuono and also for three letters Colantuono sent to the district attorney’s office that hadn’t yet been released. Specifically, I asked for

Invoices from Michael Colantuono in the date range of March 17, 2010 to September 8, 2010; invoice for GWAVA email recovery software


Letters from Michael Colantuono to the Alameda County District Attorney’s office dated July 7, July 15 and August 4, and any documents included with those submissions

I got a response from City Attorney Teresa Highsmith on September 16 that said:

The City of Alameda is in receipt of your September 8, 2010 email requesting “invoices from Michael Colantuono in the date range of March 17, 2010 to September 8, 2010” as well as for “invoice[s] for GWAVA email recovery software.” In response to your first request, the City has determined that it possesses certain identifiable, non-exempt documents that fall within the scope of your request, which documents it will make available to you. Your request also included documents that are exempt from disclosure under the Public Records Act pursuant to the exemption set forth in Government Code section 6254(k) (documents protected by the attorney-client privilege enumerated in Evidence Code Section 954). As to your second request (for GWAVA email recovery software invoices), the City has no documents responsive to your request. We do, however, have other invoices from GWAVA for other software or services—do you wish to review those?

Please contact Elaine —— at (510) XXX-XXXX to schedule a time to inspect the documents, or, in the alternative, to request that copies be made for you; copies are available for .10 per page.

At this time, the City of Alameda considers its response to your September 8, 2010 request for public records to be complete.

At this point, I sent some e-mails back because I thought Highsmith was holding the Colantuono letters, but she clarified with the following message, of which I believe this is the key part:

The PRA request I was responding to was the one where you asked for “invoices from Michael Colantuono in the date range of March 17, 2010 to September 8, 2010.” The majority of these documents are attorney-client privileged, as attorney invoices detail the actual attorney-client privileged legal work being performed. However, what you can have copies of are the monthly one-page summaries (which contain no detail of the work performed) which state the total number of hours worked that month and the amount billed. I have these summary pages for the months of March, April, May, June, July and August only, as September has not been billed. It would cost you .60 for all 6 pages of these monthly summaries, which will reflect the total hours and costs of all legal work provided by Mr. Colantunoo (sp) to the City during this period. To the extent that you are looking for invoices that are limited to Mr. Colantuono’s investigatory work regarding Lena Tam, these summary invoices will not provide you with that detail, nor should you assume that the total amounts paid to Mr. Colantuono during this time period reflect the amount of time or fees paid for his work on the Tam investigation–they do not. His work on the Tam investigation is a subset of his total time.

I picked up those summaries on September 20 and, with those and the e-mails you see here, wrote the paragraph posted at the beginning of this piece. And I stand by the accuracy of the piece.

I take my obligation to accurately report facts seriously, and I think you do too. In fact, that’s one of the things I appreciate the most about reporting news online – that you all can, and do, correct errors when you see them. I recognize that people will draw different conclusions from the information I provide, but that’s okay. It’s my job to tell you what happened, and to let you decide what you think about it.

If you’ve ever got a question about what I reported or why, please drop me a line, at michele@theislandofalameda.com. Or feel free to offer your thoughts, as always, in the comment section below. As always, thanks for reading The Island.


  • Dave L. says:

    Why is the cost of the Tam investigation not being revealed? As public servants, this information should not be hidden from the public.

    This refusal by the Gallant and Highsmith speaks volumes.

    What do they have to hide?

  • Mark Irons says:

    At the Sunshine Task Force work shop we learned that under the Brown Act all information and proceedings which are allowed to be closed door sessions are actually discretionary. (There is only one exception).In other words job evaluation, NEA negotiations may all occur in open session. This does not correlate directly to attorney client privilege but just as with closed door, it seems the excuse is used an awful lot. Why shouldn’t the public know how it’s money is spent?

  • j cloren says:

    If Gilmore was genuinely interested in the information herself, why didn’t she request the information in writing ? One would think with her legal background she should be aware of the protocol. How does this demonstrate leadership???

  • Thanks for clearing this up.

    strange that our City Attorney would deny that she ever spoke to anyone in the community about this matter.

  • Hi MIchele: Thanks for laying this out. Keep up the good work! Your post this morning makes it clear that City Attorney Teresa Highsmith directly lied to the City Council on Tuesday evening. The emails you have posted offer direct proof that Highsmith did engage in an interview with you. While I find it amazing that Highsmith could so boldly lie to the council (and the public) about this, I also believe that this is just another example of the kind of show that Interim City Manager Ann Marie Gallant is running at City Hall. It also goes to the very reason that I am running for City Council. As I have said now at several public events, if elected I will do my level best to bring openness and transparency to City Hall. I also pledge to do everything I can to show Gallant and Highsmith the door as soon as possible. We Alamedans cannot continue to labor under the oppression of two women whose actions have clearly shown their distaste and contempt for the public process, the Brown Act or the California Public Records Act. And, yet, amazingly, even at a candidates forum Wednesday at the Kiwanis Club, Bev Johnson and Marilyn Ashcraft fell all over themselves defending Gallant. For that matter, I’m wondering when the other candidates like Rob Bonta (who doesn’t seem to like to get his hands dirty in the realities of the Alameda political world) and Jean Sweeney (who seems to be basing her entire campaign around the discovery of a single historical document) will get involved the debate about the kind and quality of city management we want and need here in Alameda. Going forward, the worrisome thing is that the $77,000 witch hunt that Gallant and Highsmith engineered against Lena Tam is apparently not over. I have it on good authority that yet another letter from Gallant and Highsmith has been recently dispatched to DA Nancy O’Malley asking her to reconsider her decision to exonerate Tam. If true, this will be damning evidence that Gallant and Highsmith have truly gone rogue and need to be harshly reined in. Of course at this point I won’t be holding my breath that this latest letter gets released anytime soon.

  • Atticus Finch says:

    Ms. Highsmith seems to have a misunderstanding of the attorney-client privilege. The privilege protects the content of communications between the attorney and client. In most cases, it does not protect the fact that communications were made or how much time was spent on a particular matter. Similarly, the work product privilege protects the attorney’s thoughts, impressions, analysis etc. It does not necessarily protect a description of the work done. In any event, in most cases (and almost certainly in this case), the time put in on a particular matter is not privileged. If the descriptions on the invoice reflect privileged communications or matters unrelated to the Tam investigation, those items can be redacted while still allowing the public access to information about how much time and money was spent on this matter.

  • EastBay2010 says:

    I think the City Attorney owes an apology to you, Michele. Keep up the great reporting work. We are so lucky to have you.

  • Jon Spangler says:

    Great commentary, Michelle, and thank you for sharing the story behind this story.

    I agree with Atticus Finch and others that, as Terry Francke told us on September 11 at the STF Workshop, that most of the “discretionary” use of Brown Act exceptions is unnecessary. In this case it is certainly not conducive to open and accountable government:

    Terry Francke, Californians Aware says:
    1, September 21, 2010 at 11:56 am
    1. A council majority can, in recognition of the public interest, waive the confidentiality of the attorney-client privilege and disclose all communications with Mr. Colantuono. It’s entirely up to them as a political decision.

    2. There is no California case law or other legal authority that recognizes as privileged the general kind of tasks for which an attorney bills the client. Federal case law for the Ninth Circuit (including federal courts in California) indicates such information is not treated as privileged.


    Even if the City Attorney felt that the detailed invoice information was “privileged,” she never mentioned Tuesday night that the Council could vote to disclose all of these accounting details. I find that “sin of omission” more than troublesome.

    It is obfuscatory behavior like Highsmith’s serious sin of omission that led Council member Gilmore to request an audit of the expenses and time spent on investigating Lena Tam in the first place. I do not believe that Gilmore trusts the ICM or the CA to be forthcoming any more than we do.

    And that is a sad indictment of both staffers.

  • Jon Spangler says:

    Not to mention spending $10, 710 on software when that represents 10% of the cost of upgrading our servers.

    I know Lara Weisiger’s job as City Clerk would be much easier if she could replace her Neanderthal laptop computer, too, and she could probably buy two solid laptops with all the trimmings for $10, 710.

  • If I’m not mistaken, the doctrine of attorney-client privilege only requires that the attorney not reveal confidential information. Clients, by contrast, are not bound by the privilege and are free to reveal any information they choose.

    In this case, Michael Colantuono may be legally prohibited from revealing how much he charged the City of Alameda for the Tam investigation. But the city itself can release the information if it wants to.

    However, neither Highsmith nor Gallant has the power to make that decision. In this case, the City of Alameda is Colantuono’s client, so releasing the information would require a vote of the council. If three councilmembers want that information revealed publicly, they can make it happen.

  • Lucinda Ryan says:

    What is significant about Michele’s work, here and in other serious topics, is the level-headed, non-whiny, non-intimating nature of her reporting and writing. Just the facts, in clear language, without attacking. That kind of behavior usually wins out in the end. In City Hall, in the street, in the written word.

  • Miss Information says:

    Indictment for both staffers? When and from what University did Mr. Spangler receive a law degree? Why does he consider himself such an authority figure on everything?

  • anotherfrank says:

    In Jeff Mitchell’s post I see everything I hate about the ‘insiders’
    of Alameda.

    Pray tell Jeff who is your ‘good authority’?

    How do I get ‘the secret handshake’?

    I’ve always been a advocate of open government and the Brown Act.

    Perhaps I’m a purist but I would prefer people on the Comission to show a degree of dignity. To perhaps work SILENTLY behind the scenes to expose the abuses that have gone on for so long in Alameda.

    It scares me when they come out with an agenda. It gives the appearence of taking sides. This I will expose and that I won’t.

    Too many of the same people wearing different hats on different days.

    But what do I know.

  • Jon Spangler says:

    Miss Information:

    First, I used the word “indictment” legitimately in its non-legal sense, which was obvious from my context. See #3 here:


    Whether the City Attorney or the Interim City Manager have committed crimes for which they are legally or financially responsible is up to the DA, not me.

    Second, my “authority” here is Terry Francke of CalAware, whom I quoted in my earlier comment. (I do not have to be an authority on a subject in order to recognize the genuine article when I see it.)

    Third, I DO have a strong interest in community affairs and how our government is run, which is why I spend time volunteering, attending City Council and other meetings, and working to make Alameda a better place in which to live, work, and vote. Paying attention to the real issues and to the records of our public officials is important.

  • Barbara Thomas says:

    In addition to the Brown Act, our elected officials took an oath. So the holder of the privilege may not be the elected official who swore under oath to do the best for the citizens, but actually the citizens. So who did TAM contact before she chose to disclose those matters which she swore under oath to hold sacred? The League of Women Voters, not the entire electorate? Of course JK White received those privileged communications, so he would have a vested interest in the outcome. I have determined after reading most of the blog garbage, that the level once achieved by the Seattle Post Intelligenser and reporters like Lance Williams is gone. We are just mindless commentators led by those with an undisclosed but very vested interest. Good night and good luck.

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