Michael G. Colantuono MColantuono@CLLAW.

US (213) 542-5739

Colantuono & Levin, PC 11406 Pleasant Valley Road Penn Valley, CA 95946-9001 Main: (530) 432-7357 FAX: (530) 432-7356 1/INfW. CLI.AW. US

BY U.S. AND ELECTRONIC MAIL to ann.diem@acgov.org

August 4, 2010

Ann Diem, Assistant District Attorney Alameda County District Attorney's Office 1225 Fallon Street, Room 900

Oakland, CA 94612

Re: Letter from John Keker

Dear Ms. Diem:

Introduction. I write to respond to John Keker's letter to your office, dated July 23,2010, which he provided on behalf of the Alameda City Councilmember Lena Tam. Ms. Tam's lawyer vigorously argues that no action should be taken against Ms. Tam based on a selective and creative review of the evidence our investigation generated. Further, he significantly mischaracterizes the law applicable to Ms. Tam's violations. Accordingly, we write this letter to assist your ongoing review of this matter.

Factual Issues. Mr. Keker is one of California's most prominent, and most expensive, criminal defense attorneys. His letter demonstrates his exceptional ability to analyze particular trees into toothpicks while ignoring the forest of evidence demonstrating Ms. Tam's culpability. It is therefore noteworthy that neither Ms. Tam nor Mr. Keker disputes the authenticity of the emails we provided your office with or denies that Ms. Tam authored them. Nor does he deny that Ms. Tam concealed critical information from other City officials and the public when she secretly blind carbon copied ("bcc-ed") opposing parties in negotiations with the City on her communications with those City officials.

It is not the purpose of this letter to rebut, line by line, the freedom with which Mr. Keker characterizes and, in notable instances, mischaracterizes the evidence our investigation disclosed. However, a few of the more glaring misstatements bear comment. First, Mr. Keker's claim that my firm was hired by Interim City Manager Ann Marie Gallant and City Attorney Teresa Highsmith is simply wrong - my firm has represented the City since the founding of my firm in 2002 and I have represented the City since the mid-1990s, having been retained by the former City Attorney. This matter was referred to us because the City Attorney's own privacy and personnel rights were implicated. Moreover, our client is the City itself, not any individual. Thus, unlike Mr. Keker, we do not represent any particular individual in this matter and our duty is to safeguard the City's and the public's interests. Our job is not to depict the evidence in a

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light that would benefit any particular individual and our memoranda to you are certainly not a "result [of] political infighting." Indeed, it is very clear that the City Manager, City Attorney, and the four Councilmembers who voted to release our reports to the public would have much preferred our work not necessary. This is a sad and regrettable situation for all who care about good government and all who care about Alameda.

Nor is it true that the City Council accepted our recommendation to release the results of our investigation to the public for political reasons. Rather, it did so after learning of your office's non-objection to it doing so in order to aid your work and to provide the public with information to which it is entitled.

Mr. Keker also claims that Ms. Tam forwarded John Knox White "an otherwise public agenda." In fact, the email to which Mr. Keker refers was sent to the City Council from the City Attorney's office, contained legal advice, and was clearly marked "confidential." There was nothing "public" about this email and it was certainly distinct from the City's "agenda," which are available at the City Clerk's office and posted on the City's website.

Mr. Keker duly notes we have provided no evidence to show that Ms. Tam obtained any "financial benefit" in exchange for providing third parties with confidential information. Indeed we have not the evidence that would justify sending Ms. Tam to state or federal prison for bribery or other crimes. For her sake and for the sake of her constituents, we surely hope that there was no such quid pro quo in her misconduct. However, investigation of that issue lies with law enforcement, which, unlike our firm, has the power to issue subpoenas and the personnel to conduct the necessary investigation.

Legal Issues. With this introduction, we now tum to Mr. Keker's creative, but incorrect, construction of the civil laws which apply here, an area not within his usual area of practice but well within ours.

1. Removal of Public Officials for Misconduct in Office Does Not Require a "Penal Code Violation."

Mr. Keker claims that Steiner v. Superior Court! holds that a Section 3060 proceeding requires a criminal violation due to the doctrine of separation of powers. The case did nothing of that kind. Rather, it involved an effort to hold Orange County Supervisors responsible for their failure to prevent the County Treasurer from risking the City's investments in an ill-advised effort to chase high returns. The Court held that mere negligent nonfeasance is insufficient to constitute "willful misconduct" under Section 3060. It further held that when the misconduct in question is a legislative act that violates no penal statute, removal from office pursuant to Section 3060 violates the separation of powers provision under the Constitution. However, the

I Steiner v. Superior Court, 50 Cal. App. 4th 1771(1996).

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results of the Tam investigation show far more than negligent nonfeasance - they show a pattern of repeated and willful use of email to violate the Brown Act, share confidential information with SunCal and the International Association of Fire Fighters ("IAFF") to assist those private interests in their negotiations with the City, and to withhold from other City officials and the public that she was doing so.

To avoid the very misconstruction Mr. Keker offers, the Steiner Court specifically stated:

We stress our holding is narrow. We find section 3060 violates the separation of powers provision of the California Constitution insofar as it is used to accuse county supervisors for acts or omissions committed as a part of their legislative functions and which violate no penal statute. (Emphasis added.)

Merely because Ms. Tam serves on the City Council does not mean that all her actions are "legislative." Her emails of confidential information to unauthorized recipients were not legislative acts. Nor were her emails to a quorum of Councilmembers in violation of the Brown Act or her interference with the City Manager's power under the Charter to supervise the City's Fire Chief legislative acts. Further, unlike the alleged misconduct in Steiner v. Superior Court, Ms. Tam's misconduct did not involve failure to take legislative actions, but rather actively engaging in Brown Act violations and breaching her fiduciary duty to the public to benefit developers and other individuals at the City'S expense. Because Ms. Tam's misconduct was not based on legislative acts, the separation of powers doctrine does not bar a Section 3060 proceeding and the holding in Steiner v. Superior Court has no application here, which is why we did not discuss this case in our previous memoranda.

2. The Scope of a City's Attorney~Client Privilege is Not Defined by a Closed Session Notice on an Agenda.

Mr. Keker's claim that Ms. Tam was entitled to disclose closed session information because it exceeded the scope of a closed session notice is simply wrong. First, advice about the City'S legal exposure was not outside the scope of the notice because the City Council could not discuss the "price and terms" of a potential real estate transaction with SunCal without understanding the litigation risks arising from entering into, or refusing to enter into, that transaction? Second, Roberts v. City of Palmdale clearly articulated that the Brown Act does not

2 Shapiro v. San Diego City Council, 96 Cal. App. 4th 904 (2002), which Mr. Keker cites for his proposition, actually dealt with a city council that attempted to make land use and other economic policy regarding a redevelopment project in a closed session justified by a real estate transaction, which is far from the facts here. Moreover, were Ms. Tam concerned that the City Council had exceeded its closed session authority; her remedy was not to secretly share confidences with SunCal, but to report the violation to your office. Govemment Code § 54963 (forbidding disclosure of confidential information obtained in closed session but authorizing "whistle-blowing" to the District Attorney's office.

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define the scope of attorney-client privilege.' Thus, even if the City Attorney's advice had been outside the scope of the closed session notice, which it was not, that would not waive the City's attorney-client privilege, which can only be waived by City Council action. Therefore, Ms. Tam had no right to disclose this information to third parties and particularly not to the City's opposing party in the matters to which this information pertained.

3. The Brown Act Allows Staff to Brief Councilmembers-Not a Councilmember to Discuss Public Business With a Quorum of Councilmembers.

Mr. Keker also tries to justify Ms. Tam's practice of bcc-ing her emails to a quorum of Councilmembers by relying on an exception that allows staff to have "separate conversations or communications outside of a meeting authorized by [the Brown Act] with members of a legislative body in order to answer questions or provide information." Gov. Code § 54952.2(b)(1). Contrary to Mr. Keker's belief, this provision does not penn it "a councilmember ... to engage in communications with a city employee or official for the purpose of answering questions or providing information." This exception cannot meaningfully be interpreted to allow a Councilmember to "brief' a quorum of the Council by emaiL Ms. Tam was very well aware of this, which is why she consistently bcc-ed Councilmember Gilmore when emailing to other Councilmembers to conceal to such Councilmembers that the emails were communication among a quorum of Councilmembers in violation of the Brown Act. If, as Mr. Keker would now have it, Ms. Tam intended to brief her fellow Councilmembers, why did she feel the need to conceal from all but Councilmember Marie Gilmore that she was doing so? Mr. Keker provides no convincing rationale for his client's secretive disclosures to one Council colleague and representatives of the IAFF and SunCal while not sharing that information with her other colleagues or the public. Selective use of secrecy can hardly be understood as an above-board briefing authorized by the Brown Act.

Mr. Keker further misrepresented the advice of a retired Berkley City Attorney which he found on the internet," which in its original form suggests that "when staff emails a quorum of a legislative body, [they should] place the members' e-mail addresses in the "bee" address line [to] avoid an inadvertent violation of the Act via use of the "reply to all" function." (Emphasis added) Contrary to Mr. Keker's post hoc rationalization in defense of his client, the Berkeley City Attorney did not suggest that a Councilmember may email a quorum of Councilmembers simply because the Councilmember places the members' email addressesinthebccfield.In fact, the Berkeley advice states that it would be an inadvertent violation of the Brown Act for a Councilmember to accidently respond to all Councilmembers, if staff were to simply address the original email "to" all Councilmembers. Obviously, if the Councilmember intentionally emails to a quorum of Councilmembers, as Ms. Tam so frequently did, rather than by inadvertently

3 Roberts v. City a/Palmdale, 5 Ca1.4th 363 (1993).

4 It should also be noted that although Mr. Keker cites to Ms. Albuquerque's guide as if it were the law, it is merely prophylactic advice, albeit from a respected, retired City Attorney.

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hitting the "reply to all" button, she willfully violated the Brown Act. Moreover, Ms. Tam's practice of openly sending her emails to a Councilmember and bcc-ing Councilniember Gilmore and her contacts at SunCal and IAPF shows that her motive was not to avoid Brown Act violations. To claim, after the fact, that she was following the prophylactic advice of a respected, retired City Attorney is simply not credible, especially because this advice seeks to prevent email communications of the very type that Ms. Tam so frequently engaged in.

4. Mr. Keker Cites Superseded Law on Serial Meetingsi The Current Law Does Not Require "Collective Concurrence."

Roberts v. City of Palmdale, a 1993 decision cited in Mr. Keker's letter for the proposition that serial meetings require collective action, did not actually deal with a serial meeting, but with written advice provided by the Palmdale City Attorney regarding a land use appeal that was not shared with the applicant / appellant. However, to the extent that this case discussed that "collective action" was required for a meeting to occur within the meaning of the Brown Act, it was based on since-amended statutory language regarding serial meetings. The Brown Act was amended in 2008 to prohibit the use of "series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body." (Emphasis added.) Accordingly, collective action is no longer required for off-agenda communications among a quorum of a Council to constitute an illegal serial meeting. In adopting the 2008 amendment, the Legislature expressly declared that it disapproved a construction of the prohibition that would "require that a series of individual meetings by members of a body [to] actually result in a collective concurrence."

S. Ms. Tam Did Not Simply "Communicatlel with Firefighters About Their Concerns," She Threatened to Fire the Citv Manager if the Manager did Not Fire the Fire Chief, Thereby Interfering with the Manager's Charter Powers and Duties.

Mr. Keker claims to be confounded over our conclusion that Ms. Tam's secret communications with the IAFF interfered with the City Manager's Charter powers. The conclusion is simple and inescapable from the evidence our investigation disclosed. As we wrote earlier:

[O]n May 9, 2010, Tam met with the City Manager for a briefing and threatened that unless the City Manager disciplined or removed the Fire Chief in accordance with Tam's instructions, Tam would ensure that the City Manager was fired.

This is precisely the kind of political interference with personnel decisions that the CouncilManager form of government is intended to prevent. Ms. Tam plainly interfered with the City Manager's management of the City and her power under the City Charter to "appoint, discipline and remove all officers and employees of the City under ... her jurisdiction." Mr. Keker's

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attempt to portray this as something other than an evident Charter violation is a testament to his persistence and skill as a criminal defense attorney dedicated to his client's interests and not to the disinterested pursuit of truth which, of course, is the task before the grand jury that your office serves.

6. The Constitution Equally Protects Privacy Rights of State and City Employees and, Thus, Mr. Keker's Narrow Reading of Statutes is Meaningless.

The privacy protection under Article I, Section 1 of the Constitution applies to all public employee records, both state and local. Payton v. City of Santa Clara, 132 Ca1.App.3d 152 (1982). The prohibition against disclosure of state employee records under Civil Code § 1798.24, mentioned in our earlier letter is based on this constitutional protection and we apply that statute (which, by its terms applies only to state agencies) by analogy to show the scope of the constitutional privacy protection for city employees. Mr. Keker offers no authority - nor can he - that city employees have lesser or different constitutional privacy rights than those of state employees or that the analogy we suggest is not apt.

Mr. Keker also erroneously claimed that Ms. Tam did not violate Government Code § 54957, which guarantees a City employee 24 hours' advance written notice prior to a closed session on specific complaints brought against such employee to notify the employee of his or her right to have the complaints heard in open session rather than closed session. He thus makes our contention more specific than we made it, and dismisses it. We agree that Ms. Tam had neither the power nor the responsibility to fulfill the City's duties to its employees under § 54957 regarding closed session discussion of specific allegations of misconduct by those employees. Rather, as detailed in our previous memoranda and attached exhibits, our investigation showed that Ms. Tam sent emails to a quorum of Councilmembers and sometimes unrelated third parties, like Pat Keliher of SunCal and representatives of the IAFF discussing the personnel information of the City Manager, City Attorney, and Fire Chief, violating their privacy rights and exposing the City to liability for her having done so.

7. Ms. Tam's Conduct Raises Serious Due Process Concerns.

Our earlier letters noted that serious due process issues arise when Ms. Tam sits as a member of a City Council making quasi-judicial land use decisions affecting SunCal and owners of properties neighboring Alameda Point without disclosing her secret provision of confidential information to SunCal in breach of her fiduciary duties to the City. Perhaps due to his background in criminal, rather than civil law, Mr. Keker is unnecessarily perplexed about who is at risk of a deprivation of due process, with respect to what property interest, and in what proceeding. Contrary to Mr. Keker's assertions, all of these questions were indeed answered by the evidence and our previous memoranda. The due process risks arise in any City Council proceedings involving a quasi-judicial decision involving SunCal's interest in developing Alameda Point. Those decisions implicate the due process rights of any owner of property

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affected by the decision, including SunCal and those who own land in West Alameda adjacent to Alameda Point. In short, being a secret spy for SunCal disqualifies one from being an impartial arbiter of land use decisions affecting Sun Cal and neighboring property owners. This point does not become less clear regardless of how many puzzled queries Mr. Keker may pose.

8. Fiduciary Breach Means Failure to Discharge Duties with Integrity and Fidelity and Does Not Require "Secret Profit."

Finally, again citing the standards of state and federal criminal laws which we have not sought to apply, Mr. Keker mistakenly claims that Ms. Tam's only fiduciary duty to her constituents was to refrain from making a secret profit at the expense of the City. Thus, anyone who does not commit bribery or extortion is a paragon of fiduciary duty as Mr. Keker views the world. Fortunately for the Alameda residents, the law holds Ms. Tam to a higher standard. His argument may keep her out of prison, but it need not maintain her in office.

"A public office is a public trust created in the interest and for the benefit of the people."

Terry v. Bender, 143 Cal. App. 2d 198 (1956) (discussing Schaefer v. Berinstein, 140 Cal.App.2d 278 (1956).) Therefore, "[pjublic officers are obligated, virtute officii, to discharge their responsibilities with integrity and fidelity." Id As such, Councilmembers are subject to the full range of duties that stem from a fiduciary relationship and not merely the prohibition against secret profits. One important fiduciary duty is to maintain the confidentiality of information obtained by virtue of the fiduciary relationship. BUckman Turkus, LP v. MF Downtown Sunnyvale, LLC, 162 Cal. App. 4th 858, 888 (2008) ("disclosure of [a principal's] confidential information to [a third party], without [the principal's] consent, would unquestionably have constituted a breach of [the agent's] fiduciary duties to [the principal]"). Because Ms. Tam acted as a trustee on behalf of the City, she was not entitled to disclose the City's confidential information without the entire Council's consent. Thus, by secretly disclosing such information to the City'S adversaries in negotiations, she breached her fiduciary duty, whether or not she obtained a secret profit in exchange for her leaks.

Conclusion. For all his considerable skill as a criminal defense attorney, Mr. Keker and his client cannot obscure the simple questions here: What possible basis could Ms. Tam have had for secretly providing SunCal and the IAFF with information to which she knew they were not entitled? Due diligence might conceivable include obtaining information from SunCal or the IAFF to test the advice of City staff, but it can hardly include leaking confidential information to those who are negotiating with the City. Moreover, if Ms. Tam's conduct was merely "due diligence," as she now contends, why did she find it necessary to act in secret?

This is not a complex case, despite Mr. Keker's efforts to make it so. There is evidence of obvious, repeated, and serious breaches of Ms. Tam's duty to serve the public interest, while

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acting as a spy for SunCal and the IAFF. Such documented, uncontested, and repeated failures to meet the civil legal standards that apply to City Councilmembers and such breaches of fiduciary duty to the City justify grand jury action under Section 3060.

We urge your office to present this matter to the grand jury so this matter can be resolved and the City can return its attention to serving the public, undistracted by this dispute and unimpaired by its inability to provide confidential information to the City Council in closed session and otherwise without risk of further, unauthorized leaks.

Sincerely,

Michael G. Colantuono

Special Counsel, City of Alameda

MGC:mgc Enclosure

c: Mayor Johnson and Members ofthe City Council Ann Marie Gallant, City Manager

Teresa Highsmith, City Attorney

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