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Details of Allegations of Misconduct Against Alameda Councilmember Lena Tam

The City of Alameda has released the detailed allegations of misconduct against Councilmember Lena Tam which are captured in two cover letters sent to the Alameda County District Attorney’s Office. The letters are accompanied with copies of e-mails and other evidence supporting the documentation. We reproduce the two cover letters detailing the allegations below.

In short, the letters allege that Councilmember Tam participated in:

  • Unauthorized disclosure of closed session information in violation of the Brown Act.
  • Unlawful serial meetings [in violation of the Brown Act.]
  • Willful or corrupt misconduct in office
  • Official misconduct based on Brown Act Violations
  • Official misconduct based on violation of Sections 7-2(H) and 7-3 of the City Charter
  • Official misconduct based on disclosure of personnel matters
  • Official misconduct based on breach of fiduciary duty and further charter violation
  • Possible disclosure of closed session information

The letters suggest that Ms. Tam may also be using her personal Google “gmail” account to leak closed session information to other parties. The letters, signed by Michael G. Colantuono, an outside attorney hired by the City of Alameda to investigate Ms. Tam’s actions, state “we believe that Tam has engaged in numerous Ralph M. Brown Act, Government Code sections 54950 et seq. (“the Brown Act”) violations and other serious official misconduct, which warrant removal from office pursuant to a grand jury charge under Government Code sections 3060-3075.” Mr. Colantuono also notes that Tam’s actions may warrant separate, criminal charges under the Brown Act.

Lena Tam Allegations July 6 2010

45 comments to Details of Allegations of Misconduct Against Alameda Councilmember Lena Tam

  • You mean this isn’t just a simple girl fight? There’s actual substance to this? This is going to ruin a lot of people’s day who wanted to dismiss this as mere insubstantial mudslinging, especially all those people listed in these allegations.

    As Bev said, this is a sad day for the City of Alameda.

  • Note the date of the first letter to the DAs office – late May. Well before the blow-up over the outside “rebranding” contract by the City Manager. And the supporting evidence, which hasn’t been scanned yet, goes back to March and earlier. Clearly the City of Alameda suspected an issue with Ms. Tam’s behavior well before the “rebranding” kerfluffle.

    Certainly local companies deserve a fair shot at competitive bids – perhaps even a City of Alameda “local first” policy or ordinance if it doesn’t already exist. Note that both the AUSD Superintendent and the City Manager defended their actions on the basis of fixed spending limit they are allowed to execute contracts on without taking it back to the governing body.

    However, the City Manager’s actions over the rebranding pale in comparison to these allegations against Councilmember Tam.

  • Incredulous

    Corrupt AND stupid.

  • Barb

    Local first in competitive bidding is not legal. I tried to implement giving some consideration to Alamedans in 1987. As had many Councils before then. Not permitted then. Not permitted now.

    I only hope that SUNCAL cannot use TAM’s activities to its advantage somehow. Criminal investigation and prosecution is not the same as litigation. It was entirely unprovoked by the City and should not extend the ENA. Nor should the City put off NOT EXTENDING THE ENA.

  • Incredulous

    By the way, Michael G. Colantuono’s legal research and writing is fabulous.

    His letter on Scribd above is a true “primer” for community activists all over the state as to the standards to which elected officials should be held, in terms of their legal fiduciary duties to the public.

    The only question which goes unanswered in all of this is what “penalty” the Government Code, the Penal Code and case law provides for those who receive and use closed session information for their own benefit, such as SunCal and the Fire Fighters Union.

    If a computer hacker can be charged with “theft” of private information, can people who are “given” private city information by a public official also be charged with “theft” or “receiving stolen property”?

  • Barb

    PC 496 Receiving stolen property can be either a misdemeanor or felony. There are special provisions for such items as trade secrets, and other intellectual propeprty. The crime requires knowlege, and I would think some sort of intent. If TAM mailed secrets in a ROBO email, certainly not everyone could be charged. If someone had requested information/documents they knew or should have known were to be stolen, or induced the stealing, then there would be culpability. If blogs received it and published it, that could be culpable as well. But lets not spread this disaster any further than need be. As to the remedy, if she resigns forthwith and mitigates further expense of prosecution by entering a “Guilty” plea (a NO CONTEST plea is unacceptable) to any charges filed, she should repay all entities that suffered actual losses due to her actions. She should re-imburse the City for the cost of the special outside counsel. I can’t see putting her in jail at further taxpayer expense though. If this rises to the the level of a felony however, the question remains should she be retained as an employee by an agency also charged with looking out for the public’s water supply? Perhaps SUNCAL can bill her for their lost profits should its ENA not be extended. And perhaps charges should be filed against anyone who used the illicit information to deter further such conduct.

  • Incredulous

    This is simply an academic comment.

    Lena Tam is a high level official of East Bay Municipal Utilities District (East Bay MUD). See:

    http://www.lenatam.com/about/lenabio.html

    The laws cited in that letter from attorney Michael G. Colantuono to the District Attorney are equally applicable to public agency employees.

    I wonder what a California Pubic Records Act request for Lena Tam’s emails from East Bay MUD’s internet server, and for phone bills for her phone extension at East Bay MUD would produce?

    “How Long Has This Been Going On?” is a song composed by George Gershwin, with lyrics by Ira Gershwin for the musical Funny Face in 1927. It is now a jazz and Mowtown standard.

  • Hot R

    That’s “Motown”

    How long has this been goin’ on ?
    How long has this been goin’ on ?

    Well your freinds with their fancy persuasions
    Can’t admit that it’s part of the scene
    But I can’t help but have my suspicions
    ‘Cause I ain’t quite as dumb as I seem

    And you said you were never intendin’
    To break up our secret this way
    But there ain’t any use in pretendin’
    It could happen to us any day

    How long has this been goin’ on ? 4X

  • Barb

    As I have had more time to read some of the 25 pages of letter above, it is apparent that John Knox White, and Councilmember Marie Gilmore (an attorney) were blind copied on documents. Michael G. Colantuono used this technique as factual support for ascribing knowledge and intent to violate the Brown Act to TAM. As the recipient of blindcopied documents, should the same facts infer the same mental elements to GILMORE? Knox White wasn’t a councilmember, but was on a committee. Was the “Sunshine” Committee covered by the Brown Act? One would hope so.

    This is starting to stink to high heaven. I only hope that the District Attorney investigates all of the above participants. They have access and probable cause to get all email acounts of everyone on TAM’s private emails now as well. If the DA stops short, the public will never be sure who to trust, if anyone, of those with whom TAM had dealings.

  • I am not suggesting that my firm should get preference because it’s local, Barb, I am saying I should have at least been notified that a contract was available to be bid upon from the City. I think that if I had had a chance to bid, my firm could stand upon its own merits as a cheerleader and representative for Alameda’s interests.

  • Incredulous

    I just found the following disregarded email, inviting people to attend a fundraiser for City Council Candidate Lena Tam on July 10th:

    http://www.apacaucus.org/downloads/LenaTam2010KickOff.pdf

    It’s probably got to be worth paying the $25+ to attend this shindig and see how many people in Alameda’s polite society choose not to attend.

    It will be interesting to see who among the following party hosts will be treating Lena Tam like a leper:

    Alameda County Board of Supervisors Chairman Alice Lai-Bitker, Alameda County Supervisor Elect Wilma Chan, the Honorable Ron and Barbara Mooney, the Honorable Jeptha and Valery Boone, Carl Chan, Chris Muir, Jane Tatum, Honora Murphy, Barbara Kahn, Sylvia Kahn and Kate and John Quick.

    I suspect those who are elected officials will suddenly come down with cases of flu or food poisoning, or be at the party for 10 minutes and then gone.

    And one other question, with Alameda being such a small city, exactly how can Lena Tam afford to hire a political campaign organization like Alliance Campaign Strategies to run her campaign?

  • Yes, especially when Lena could have piggy-backed on the Oakland political consultants, Erwin & Muir, hired by AUSD Superintendent Vital, at $300/hour. Except that they would probably have given Lena the same poor advice they gave Vital.

    Besides the legal snap-back, there will no doubt be political consequences, and from a journalistic point of view, all of these people — including John Knox-White, Lauren Do and Michele Ellson — will be discredited for receiving information they must have known was privileged. If they were, as JKW claims, simply ignorant of the fact, then their credentials as legitimate journalists with any serious training or ethics are hereby suspended. Will be interesting if they are called to testify…

  • The supporting documentation shows that many of the e-mails that Tam leaked were clearly marked “Attorney-Client privileged”…

  • Barb

    Come on Dennis. They will all be entitled and advised to take the Fifth by their attorneys. And the bloggers can claim freedom of the press and assert the press shield law scenario if the DA tries to get their emails records. It will be just like the guy who bought the “lost” Apple phone to do a story on it. Contempt is probably the main sanction for the press. And I mean legal contempt. KNOX WHITE is in a different category being on a City Committee and is presumably covered by all of the laws that TAM is alleged to have broken.
    The saddest part about that is that TAM is asserting this is just her enemies out to get her according to her quotes in a local printed newspaper. That translates into serious costs that the City must pay. Both to defend and prosecute, and pay damages to those whose privacy rights she violated. And those who got screwed by her disclosures financially. Those at AUSD who supported her, the Boys and Girls Club all are going to come under unwanted scrutiny to see how far she went. EBMUD is probably already looking into her actions there. It would be best for all if she just resigned, said her goodbyes and let the rest of Alameda get to work on positive things. Instead it looks like she is intent on taking down her supporters and the community with her. So the next months and perhaps years can be spent on the real press and DA educating the entire world on the extent of everything she did that was illegal here in our lovely City of Alameda. The development at Alameda Point is likely to get short shrift as the DA joins the fray to see to what extent that good neighbor SUNCAL/Oak Knoll did in Alameda. Not a pretty picture for any of us. And we owe it all the arrogance and stupidity of someone who was elected to represent and govern us, took an oath to do so honestly and to the best of her ability. This is how those whe elected her were repaid.

  • The packet of allegations details that the first of the leaked e-mails took place in February/March, well before the June 15th exchange between Tam and the City Manager about the rebranding contract. We’ve heard rumors for a year or longer that Tam was feeding stuff to Knox White and Do.

  • Anonymous

    Action Alameda. You mean the first leaked emails that have been identified thus far. Wonder if EBMUD is checking their server about now?

  • Certainly. Presumably the outside attorney would include only the strongest, most bullet-proof, material in the packet of allegations referred to the D.A. Who knows what City of Alameda e-mails they know she leaked but weren’t strong enough to refer to the DA, or EBMUD materials she leaked.

  • Barb

    This entire scenario was getting downright gloomy. Til I read some of the comments after the SFGATE article. There are some really funny people in the world. I especially liked, if I can quote

    “You want her gone, Oakland will trade Desley Brooks for her. We can do the prisoner swap in the middle of the Fruitvale Bridge. I would LOOOVE another development-oriented member on the Oakland City Council. Maybe we could get the Oakland Army Base re-purposed as somethng better than the center of the Wayans Brothers entertainment universe…”

    Got to keep a sense of humor about this or we will all be too discouraged to go on.

  • It’s a trade! We’d like the Wayans Brothers studios at Alameda Point to complement Area 51 and the TV and film work they already do out there!

    But wait! Ms. Brooks doesn’t seemed to have overly impressed the Oakland residents living next door to SunCal’s failed Oak Knoll project…

  • LocalYokel

    Here’s my favorite comment from SFGate:

    “You obviously can see where council member Tam will be getting her campaign contributions for the forthcoming election… a private developer AND the firefighter’s union. Mutual back scratching is a time honored way to doing business politically, something developers AND public safety unions do with great skill. Both are dangerous to the health of a community, but in these troubled financial times the gold plated contracts enjoyed by public safety union members simply can’t be sustained. Turning emergency service calls to private ambulance services makes sense, as does winding down commitments to overly generous pension and health benefits. Time for Tam to go so Alameda can clean up its act!”

    This is so obvious that I can’t imagine how anyone could defend Lena Tam’s behavior. She’s just another pol on the take. The harm she could do the city is tremendous. We’ve dealing w/ a billion dollar development, and here she is, handing off secrets to SunCal, yet she has the arrogance to sit there and lecture everyone else on “transparency”.

  • Barb, I’m aware that Do and Ellson can try and claim press immunity that Knox White cannot. But you know well, as I do, that for journalists, public servants, volunteers and elected officials community is all about TRUST. When I served as a volunteer with the Chamber, or other organizations, I knew that pursuing any kind of personal agenda would be DEATH. That even the appearance of impropriety would lose the trust of my board members, the membership, our friends and supporters in the community. That I always had to put my love of Alameda, and the good of the community first and foremost and ONLY. Likewise, in my writings about the AUSD parcel tax, I don’t and can’t put my personal interests ahead of the truth. All of these people, including the bloggers, are now going to learn this moral, ethical and professional lesson the hard way. And I’m not overjoyed, just hope that some good comes of all this after all. More honesty, more truth in our public servants and people professing to be journalists.

  • ICM Gallant’s practices deserve as thorough a vetting as Councilwoman Tam’s, for sure. Now it seems this outside attorney hired to investigate Councilwoman Tam is a previous employer of Ms Gallant.

    If our money is paying for it, the citizens of Alameda should have some oversight as to how the investigation is conducted and our money is spent, especially if the party contracted receives hundreds of thousands of dollars of the City’s money.

  • Barb

    Gillico: Where are you getting your information? After reading some of the other blogs and seeing your comments there, I am very skeptical of your prejudices and sources. Yes we know you did not get to bid on a contract that was not let out for bid. Would you have been awarded the contract? We will never know. Was it required under existing practices to be let our for bid? I don’t know and you have presented no evidence that it was required to be set for competitive bid. It is evident that you are very bitter and bearing a grudge for not getting the opportunity to bid on something only you think should have been put out to bid. It is also obvious that you are very supportive of TAM who has put this city at great financial risk and undermined its very ability to conduct everyday business.
    The City of Alameda enters into hundreds if not thousands of contracts per year. The costs of publication alone, undermine many of the benefits of competitive bidding. If you can cite some authority for your positions, please do so. Otherwise get over it. Quit your whining. The City Manager has too much on her plate right now to deal with disgruntled vendors. The entire City is on the brink of complete shutdown. TAM has jeopardized public safety by sending confidential negotiation material to the fire fighter’s negotiators. How does this possibly compare to your lost profits on a $75,000 contract?
    As I said before, the time is now. If you are so unhappy and bitter over what is not being done, run for council. Obviously the standards currently in place do not meet yours. You need to run for office and see if voters think you have anything to offer.

  • The latest information I have seen about this comes from http://eastbayopengovernment.blogspot.com/2010/07/weak-justice-for-oscar-grant-no-justice.html. I’m sorry if your friend is unethical Barb, but she needs to go. I’m not whining, I’m looking out for Alameda’s best interests.

  • Gillico – you realize that East Bay Open Government blog is run by Lena Tam partisans right? Somebody in the Lauren Do circle of Lena Tam supporters….

  • Nevertheless, why wasn’t the City Attorney the attorney of record? Or a neutral attorney?

    I am not discounting information from any side because He said it or She said it. Forgive me for being flippant, but “‘News’ is anything that anybody doesn’t want somebody to know.”

    I think everyone involved in this rapidly deepening quagmire needs a thorough investigation.

  • Gillico, you reference a partisan and discredited web site as “evidence”? You claim that an on-island attorney would have been more neutral and objective investigating a City Council member than an off-island attorney? What is this, “SHOP ALAMEDA” week? As a ten-year board member and past President of the Chamber of Commerce, I know for a fact that on-island resources are VERY limited, that many firms here have gotten work they weren’t qualified to do, that no obvious system or process for honest and open “competitive bidding” has ever been in place.

    At the same time, I don’t see you getting in a twist about the obvious cronyism at AUSD in hiring a Trustee’s obviously unqualified daughter as “Webmaster.” Were you given an opportunity to bid on that work? How about the AUSD’s Oakland political consulting firm, $300/hr. Erwin & Muir? Aren’t you politically savvy enough to have deserved a shot at that work? Your narrow focus on Gallant doesn’t pass the smell test.

    As for “rapidly deepening quagmire,” if the District Attorney does his job, it will get that thorough investigation, beyond the current 400 pages, you say it needs.

  • Anonymous

    I guess it would suit TAM supporters to deflect away from this pool of quicksand she has gotten both herself and her supporters into, Gillico. You still haven’t provided any facts to back up your assertions, no law, rule or written policy that the ICM violated by not going to bid on the contract you wanted. How long does the bid process take and cost? How were you registered? How much profit did you lose, versus how much would it have cost to use the bid process, and now investigate your concerns?
    If we follow your suggestions, we could spend every penny of the City’s limited funds investigating everyone on the Council and all the City staff. Or the Council and ICM (We are not friends, though I have met her once- I just know the breed and the position). You seem to be demanding a penny pinching mentality on that contract you were not allowed to bid on, but don’t seem to care that TAM has been sending privileged communications to SUNCAL’s COO and Keliher on a billion dollar project. Since you are looking out for Alameda’s interests will you step up and fill TAM’s seat or run for office? That is the best way to see who supports your focus.

    The City Attorney cannot be Attorney of Record, as it is merely a referral to the District Attorney who prosecutes all felonies in the County. Since TAM has violated the CA’s privacy rights and the CA has a cause of action against TAM and maybe the City itself for TAM’s actions, it was best to hire outside counsel. The most competent outside counsel the city had for years was Doug Dang, who this most assuredly could have been referred to except he died. Why not go to someone she trusts? Should the CM/CA have called you and asked you to do it? Any of the 200,000 attorneys in California? Put it out to bid? Let TAM go through a long drawn out investiation well into the November election? Only to find out she is censured, or cannot hold office?

    This situation is one in which Time is of the Essence, to use a phrase. The rules for putting something out to bid, can involve writing up the subject matter which it is to be bid upon, publishing a Request for Proposals, giving 30 days or so for response, than reviewing the prosals. Some things may go straight to bid, like providing postage for the City’s mailings. So you publish, wait 30 days. Review the bids, negotiate the contract. What happens if you don’t get enough bidders or proposals? You go back out? Then you have to evluate to see if those who bid are “qualified”. The review, award contract etc. An extemely burdensome procedure which simply cannot be used on some items. Everyone is very sorry you did not get to bid on the contract in which you were interested. And we all hopw it doesn;t happen again. But the best why to see to that, is for someone like you to be sitting on the Council and focusing on that issue.

  • What the people upset by this situation, and every other issue that happens in Alameda, seem to be doing is fragmenting into two camps: Lena Tam is bad or Anne-Marie Gallant is bad.

    I am suggesting the novel idea that they BOTH have issues worthy of review.

  • No, Gillico, you are saying that their “Sins” are equivalent, without any evidence whatsoever against Gallant, while their are more than 400 pages of evidence and testimony, much of it self-generated, against Tam. That is neither fair nor just, but especially so illogical that even those of us who might be sympathetic toward your plight, (going out of business?), find it hard to support your point of view. By your standards, EVERYONE in City government should be under suspicion, and frankly, my dear, we just don’t have the time!

  • Your condescension makes your point of view difficult to swallow, Dennis. You are welcome to stick to one side or another. I prefer to not keep blinders on, but look at the whole situation.

  • Incredulous

    Gillico:

    Again, can you provide the California code section numbers and code sections which you claim the Interim City Manager and/or City Attorney violated?

    The code section numbers which Tam violated have been provided by the documents posted above.

    It’s very had to take your comments seriously, from an objective point of view, unless you can provide the exact code sections you think have been violated.

  • LittleBird

    Lena Tam is very methodical. First she built her base here, with the League of Women Voters and the Democratic Club, and got the bloggers backing her as well. Then when it was time to run for higher office, she set out to get the developer and union support she needed in a very calculating fashion. Too bad she didn’t have a flash drive, because the emailing may have backfired.

    There’s no greater good of the city in all this, just the greater good of Lena Tam. She has doggedly supported SunCal with no regard to the city’s well-being. Her suppoerters have echoed her message presumably in exchange for the benefit of her influence long-term. So in sum and objectively, all these folks are united in looking out for number one, and they will attack anyone who gets in the way. The more effective that person may be, the more the attacks will escalate. See, for example, the ICM.

    Tam’s supporters are now attempting to equate Tam wtih Gallant, which as others have said above, does not make sense. Whether Gallant acted in bad judgment or not, she has not done anything illegal, but of course that doesn’t matter. This is all part of a very organized and methodical PR campaign: First agree on the message and then repeat it over and over again. That message may be refuted “ad nauseum” as Incredulous observes above, but where the PR strategy is concerned, that doesn’t matter.

  • I am not a Tam supporter. Read what I have said. Tam needs investigating AND Gallant needs investigating.

    Commenters here and on other blogs seem more interested in picking sides than uncovering any sort of greater truth.

  • Smart voter

    Gillico, move on!!!!!!!

  • Kent Lewandowski

    I just read the attorney’s trumped-up charges of email malfeasance. Sounds like we’ve got a witch hunt going on over there. Way to go, Alameda.

  • Hey Barb, how come this is in the City Charter?

    Sec. 3-17. When entering into any contract for labor or hiring any labor for public contract work, preference may be given to contractors, mechanics, artisans or other laborers of any class, who shall have actually resided in the City for a period of six months preceding the date of their engagement to perform labor, quality and price of work being equal.

    http://www.ci.alameda.ca.us/gov/city_charter.html?article=3

  • Gillico, your comments about “blinders” and how only you are seeing both sides of this controversy are more condescending than anything I could come up with. Your high-minded attitude of superiority, intended as a put-down, is instead very off-putting. Such a self-righteous attitude in a political discussion is more indicative of partisan thinking than our desire to be logical, rational and to cite evidence. And as far as I know, that “preference” clause in the City Charter was found illegal years ago!

  • Really Dennis? So, my saying “investigate both women” is equivalent to having blinders on?

    And, if you read the City Charter, how many parts have been Repealed?

    Not that one.

    Go (insert yours) TEAM!!!!!

  • Gillico, I can’t believe you took the bait! At least you won’t be running against Tam!

  • Barb

    TAM broke the law designed to protect the very citizens she took an oath to serve. Gallant broke no law and no rules. She did her job within the written policies set by the Council which included TAM. It would poor judgment by the Council to authorize spending money to investigate Gallant for following the law and their policies. They should already know what she is doing as she is their employee.

    The Charter was adopted April 29, 1937. And a previous City Attorney (I voted against hiring) updated the municipal code at great expense, but saw no need to bring parts of the charter up to date which had become illegal and were not enforced.
    Since the Allan Bakke decision in UC v. Bakke [(1978) 438 U.S. 265], one cannot give extra credit so to speak to any identifiable group without a prior finding of past discrmimination.
    Portions of the Charter which Gillico will undoubtedly be annoyed with also if he wins, are 2-1.1. This sets Council pay at $50. per meeting. The Mayor gets an additional $200 per month. Pay of elected officials remained the same, but City employees pay has greatly escalated. Under the original Charter Sec. 2-4, the City Manager was to receive $4000 per year. City Staff has made it necessary to increase their salaries, but not that of Council. A simple change in the Charter to set payment at the same pay for Councilmembers as those of General Law cities of the same size would be justifiable and fair. You will find that the people in this town are generally short sighted and mean spirited when it comes to raising Council pay. They seem to get off on whining, complaining, calling names and demanding investigations. If we spent money every time someone wanted an investigation of a perceived slight, Alameda would have fewer street sweepers, police, and firefighters.
    The pay for Council makes it so that one has to either be retired or independently wealthy or otherwise supported to consistently put in the many hours required to do a good job. And the Council has no staff such as Oakland, or the County supervisors. So when you want to start notifying everybody of every contract and publishing this sort of thing in advance, perhaps lowering the limit for bid, remember you or someone else is going to have to review all these bids and bidders. Wasn’t TAM making noises about not running months ago? Guess her hookup with SUNCAL paid off.

  • proudcitizen

    Tam broke the law and is GUILTY GUILTY GUILTY! Dishonest and as a woman, I am truly appalled that the League of Women Voters is backing her up on this. Also think the Wayans Brothers idea is excellent idea.

  • No, Gillico, and all this will be part of your campaign for office, you know…my REAL accusation is this: that having attempted to equate Tam’s crimes with your own unjustified allegations against Gallant, is keeping your blinders on. If you want to hire an investigator to build an official case against Gallant, one that would pass muster with the D.A. or the Grand Jury, have on!

    But unless you can come up with 400 pages of allegations, detailed and confirmed, I would suggest you just lay off. Or this will all come down on you in your city political ambitions like a ton o’ bricks. I, for one, don’t believe your charges for a minute. And as for that City Charter clause, ask your attorney to defend it!

    DG

  • It’s December 31, 2010, and in a closed meeting without an agenda that called for it,newly elected mayor Gilmore voted with council members Tam and Bonta to put ICM Ann Marie Gallant on administrative leave.

    It’s a sad day for Alameda.

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