'" "

LA W OFFICES OF
WiJIiarR. Rapoport

WILLIAM R. RAPOPORT
643 BAIR ISLAND ROAD , SUITE 400 REDWOOD CITY , CALIFORNIA 94063
Facsimile (650) 572- 1857

(650) 340- 7107
Refer to File

March 15

2011

VIA HAND- DELIVERED
Office of the City Clerk City of Alameda 2263 Santa Clara Avenue Room 380 Alameda , CA 94501
Re: Terri Highsmith v.

City of Alameda

Enclosed herewith is the following:

CLAIM FOR PERSONAL INJURY

(X) Please find attached the above document.
Very truly yours

Katie Camerlen
/kc Enel.

I hereby acknowledge receipt of the above-entitled document.
DATE:

kf\

??-

TERESA HIGHSMITH

CLAIM FOR PERSONAL INJURY

Plaintiff
11

J.1, lj uf

vs.

CITY OF ALAMEDA
Defendants.

TO ALAMEDA CITY CLERK:
You are hereby notified that Teresa Highsmith (" Claimant" ) claims damages from the City of Alameda as follows:
Claimant' s address is c/o William R. Rapoport; Law Offices of Wiliam R. Rapoport , 643 Bair Island Road , Suite 400 , Redwood City, CA 94063.

The amount in damages exceeds $10 000 and jurisdiction over this claim rests in
the superior court , unlimited division.

The facts giving rise to this claim are set forth in Exhibit 1 attached hereto and incorporated by this reference.
As of the date of this claim , claimant has incurred or wil incur the following injuries , damage and loss: wage loss , fringe benefits loss , emotional and physical injuries , damage to her reputation , and general damages based upon statutory violations and construetive wrongful termination.
Marie Gilmore and Lena Tam are two of the publie employees causing claimant' injuries through their conduet as alleged in Exhibit 1 attaehed hereto.

All notiees or communication regarding this claim should be. sent to Wiliam Rapoport , Law Offices of Wiliam R. Rapoport , 643 Bair Island Road , Suite 400 Redwood City, CA 94063.
2011

Dated: March 15

Ilham R. Rapoport /
Attorney for Teresa Highsmith

Lc/

EXHIBIT 1
(Attachment to Claim of

Teresa Highsmith vs. City of Alameda)

This claim is brought by Ms. Teresa Highsmith ("Claimant" ) for violations of her employment rights as the City Attorney for the City of Alameda. On December 28 2010 Claimant was involuntarily plaeed on paid administrative leave by the City Council following a
lengthy executive session. Although Claimant had not received any prior notice that the City

Council intended to discuss her employment status at this meeting, she nevertheless showed up, but was not asked any questions , despite her statement of availability during the public comment portion of the closed session. Following a five and one- half hour closed session discussion , the Couneil then , in open session , placed Claimant on paid administrative leave with no explanation; since that time , Claimant has been locked out of the City s computer , had her City- issued cell phone disconnected without prior notice , and has been instructed to turn in her keys to City Hall
and retrieve her personal belongings under supervision.

The facts set fOlih herein indicate that the Council's decision , whieh amounts to an involuntary suspension , was motivated in substantial part by an ilegal motive , namely, in retaliation for Claimant reporting ilegal and criminal behavior by one of the Councilmembers Lena Tam , in connection with Tam s dissemination of privileged and eonfidential information to SunCal , a developer who has been negotiating with the City for several years. The circumstances and timing of the involuntary suspension also constitute a violation of the Brown Act and Claimant' s due process rights.

The facts upon which the above claims are based include the following:

In the Fall of2009 , several members ofthe City Council , including Mayor Beverly Johnson and Vice- Mayor Doug deHaan , individually contacted Claimant regarding their belief that a member of the City Council was leaking information obtained during closed sessions to the developer , SunCal , to the detriment ofthe City. Claimant was also concerned about closed session leaks , because SunCal' s attorney, Amy Freilich , had on more than one occasion during meetings questioned a legal position articulated by Claimant, which had only been previously discussed with the City Council in closed session. Initially, there was no direct evidence regarding the source of the leak of the information.
On March 16 2010 , the City Council met. According to the closed session agenda , there was a legal discussion regarding a matter ofpotcntialliability of the City. On the open session agenda that evening, there was an item requested by SunCal, asking the City Council to toll the 60- day " cure " period for a finding of default under the ENA. During the public discussion of this SunCal request , Councilmember Lena Tam- an open and consistent supporter of SunCa1began to ask questions of Claimant that directly mirrored the adverse legal position of SunCal that Claimant had previously heard Amy Freilich assert. Claimant politely attempted to stop Tarn from her line of questioning, to no avail. The next day, on March 17 2010 , Claimant received a critical email from Councilmember Tam. Tam also called for Claimant s performance evaluation. On March 18 , 2010 , Lena Tam and Marie Gilmore exchanged emails agreeing to prepare a negative performance review for Claimant. On March 19 2010 , a second critical email

was sent by Lena Tam to other councilmembers. On March 21 , 2010 , the City of Alameda received a letter from SunCal attorney Amy Freilich dated March 17 2010 , which parroted the testimony that Tam had attempted to placed in the record the evening of the March 16th , Council meeting.

A subsequent internal investigation authorized by the Interim City Manager revealed that Lena Tam had repeatedly blind-copied SunCal principals and others on emails and other documents containing confidential information-in violation of the City s fiduciary interest and in violation of Claimant's personnel rights; additionally Ms. Tam repeatedly blind-copied Marie Gilmore , as well , which was not apparent to any other member of the City Council. In May, and again in July 2010 , Michael Colantuono , as the City s outside conflicts counsel , sent several letters , along with extensive documentary attachments to the Alameda District Attorney s Office requesting that the matter be turned over to the civil grand jury for investigation.
Thereafter , on July 6 , 20 I 0 , the City Council held a closed session , from which Lena Tam was excluded. After the closed session , Mayor Johnson read a statement in open session that Ms. Tam had been accused of corrpt misconduct in offce for leaking confidential information to SunCal and others without the consent.ofthe City Council and that the matter had been brought to the District Attorney for referral to the grand jury. The City Council majority also released the Colantuono reports to the public , with the prior approval of the District Attorney.

Over the next several months , Marie Gilmore made several hostile and negative comments to Claimant about her legal opinions. The Council again requested the District Attorney take action in order to permit the City to conduct its business efficiently. On September 3 , 2010 , District Attorney Nancy O' Malley issued a written statement that her office had decided not to pursue any criminal charges against Tam , allegedly based on a lack of suffcient evidence of any criminal violation. The District Attorney also refused to refer the matter to the civil grand jury for its review of the allegations of corrupt misconduct in office under Govcrnmcnt Codc Section 3060. Shortly thereafter , Lena Tam held a press conference claiming that she had been " exonerated. " Later , at the City Council meeting of September 7 2010 , Marie Gilmore , after agreeing that Lena Tam had been " exonerated " publicly stated that the City Manager and the City Attorney s role in the Tam investigation would be dealt with in their performance evaluations.

In the September and October 2010 time frame , Marie Gilmore took the following actions against Claimant including: (1) Gilmore s request that the City Attorney and the City Manager s costs of the Tam investigation be audited; (2) that an outside expert be hired for Brown Act training, rather than having such training conducted by the City Attorney (which was
the normal practice); (3) discontinuing the investigation into Lena Tam; (4) that Michael

Colantuono s contract be terminated; and(5) Marie Gilmore also falsely accused Claimant of having approved a Worker s Compensation settlement without prior Council authority, which never happened. In the October 2010 time frame , Marie Gilmore repeatedly attempted to have the City Council conduct a performance review of Claimant. Although the matter was agendized repeatedly, no actual performance review was conducted.

In mid- December 2010 , newly elected Mayor Marie Gilmore stated to Claimant that she did not wish to continue to work with Claimant and that Claimant would have to leave her position as City Attorney. Later that month , at a special meeting on December 28 , 2010 , the City Council , led by Marie Gilmore , placed Claimant on paid administrative leave.

Claimant intends to assert at least the following causes of action: (1) retaliation in violation under Labor Code 91102. 5; (2) retaliation in violation of Government Code 912653(b); 53296; (4) Brown Act violations; and (5) several common (3) violation of Governent Code , including inter alia defamation , intentional infliction of emotional distress and law torts negligent infliction of emotional distress. Further claims based on breach of her contract of employment may also be asserted , depending upon the City s future actions regarding Claimant. Claimant seeks damages for the financial losses , pain and suffering, ongoing emotional distress and reputational hann she has suffered , as well as attorney s fees and costs she has incurred and
wil continue to

incur.

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