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Alameda County District Attorney Releases Statement on Lena Tam Investigation

The Alameda County District Attorney’s office has released a statement regarding the conclusion of their review of the complaints against Alameda Councilmember Lena Tam. Earlier today, the City of Alameda issued their own statement. The D.A.’s office has stated they do “not find a basis upon which to open a criminal investigation into the violation of the Brown Act” by Councilmember Tam. The full text of the statement from the D.A.’s office is reproduced below.

Alameda County District Attorney’s Statement:

Alameda County District Attorney Nancy E. O’Malley announced today that the Alameda County District Attorney’s Office has completed its review of the complaint that Alameda City Councilmember Lena Tam violated civil and criminal provisions of the Brown Act, California’s open meeting laws. Senior members of the District Attorney’s Office conducted an in-depth review and an extensive analysis of the submitted materials and applicable statutes and case law. The District Attorney concluded that an insufficient factual and legal basis exists to justify opening a criminal investigation into the allegations that the Brown Act was violated. Further, the District Attorney declined to present evidence to the Alameda County Civil Grand Jury with the goal of obtaining an accusation against Councilmember Tam that could have ultimately resulted in her removal from office.

Two primary allegations were raised against Councilmember Lena Tam. First it was alleged that she engaged in serial meetings in violation of the Brown Act. Second, it was alleged that Councilmember Tam released confidential information learned by her in closed sessions of the City Council in violation of Ca. Government Code Section 54963. Upon thorough review of all documentation presented, the District Attorney’s office does not find a basis upon which to open a criminal investigation into the violation of the Brown Act.

The request was also made of the DA’s Office that it present evidence to the Alameda County Civil Grand Jury with the goal of obtaining an accusation against Ms. Tam that could result in her removal from office. The civil grand jury can issue an accusation following a hearing at which evidence is presented. The accusation can only be issued if the grand jury determines that a public official has committed such willful and corrupt misconduct in office that their removal from office is justified.

The District Attorney found there to be insufficient evidence of either criminal violations or purposeful failure to carry out the mandatory duties of office to justify initiating proceedings that would result in presentation of evidence to the civil grand jury that seeks to remove Ms. Tam from office.

1 comment to Alameda County District Attorney Releases Statement on Lena Tam Investigation

  • Vania

    In many counties in California, there are severe problems with publicly elected District Attorneys being unwilling to prosecute elected officials for wrongdoing if the potential defendant is a member of the same political party as the D.A.

    The California Legislature enacted a part of the Brown Act, Government Code Section 54963, to specifically make it clear that elected officials could not leak attorney-client privileged information to third parties not entitled to receive it. The Legislature mandated:

    “54963. (a) A person may not disclose confidential information that has been acquired by being present in a closed session authorized by Section 54956.7, 54956.8, 54956.86, 54956.87, 54956.9, 54957, 54957.6, 54957.8, or 54957.10 to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information.

    (b) For purposes of this section, “confidential information” means a communication made in a closed session that is specifically related to the basis for the legislative body of a local agency to meet lawfully in closed session under this chapter.

    (c) Violation of this section may be addressed by the use of such remedies as are currently available by law, including, but not limited to:

    (1) Injunctive relief to prevent the disclosure of confidential information prohibited by this section.

    (2) Disciplinary action against an employee who has willfully disclosed confidential information in violation of this section.

    (3) Referral of a member of a legislative body who has willfully disclosed confidential information in violation of this section to the grand jury.

    When it is a City Council member, the only remedies available to a City Council, whose attorney-client privilege is breached by one of its members is either (1) seeking an injunction (“Don’t do it again”) akin to closing the barn door after the horse was stolen and (3) referral of the matter to a grand jury. Of course, grand juries are not set up to receive referrals of misconduct directly by a City Council. By their nature, the District Attorney acts as the grand jury’s gate keeper.

    When District Attorneys have conflicts of interest, they are supposed to refer matters to the California Attorney General to deal with the problem in place of the District Attorney. Some have said that Nancy O’Malley has a conflict of interest because of her “‘friendship” with Lena Tam. What does “friendship” mean? Membership in the same political party? Attending fundraiser-social events with the other person? Having spoken nicely about the other person?

    The bottom line is that Nancy O’Malley has tentatively exercised her prosecutorial discretion, refusing to allow an Alameda County Grand Jury to hear any evidence about wrongful disclosure of confidential attorney-client privileged information by Lena Tam.

    One could say that in substituting her judgment for that of a Grand Jury, Nancy O’Malley has obviously made the political calculation that she will suffer less political damage to her own political reputation and electability by not offending Lena Tam’s friends and supporters. Obviously, O’Malley felt that there would be negative political fall out if she did what California law requires, at Government Code 54963(c)(3) allowing the Grand Jury to make a decision about Tam’s conduct.

    The harm to the Alameda public in general resulting from Nancy O’Malley’s decision is the complete undermining of Government Code Section 54963’s prohibition on elected officials and public employees releasing a public agency’s confidental information, like attorney-client communications, to those not entitled to have it.

    The public policy underlying protection of the sanctity of the attorney client privilege for public agencies like cities was discussed at length, by the California Supreme Court in 1993 where a developer’s lawyer sued the City of Palmdale, demanding to see Palmdale’s attorney-client privileged memoranda which led up to disapproval of a tract map. In that case, Roberts v. City of Palmdale, 5 Cal. 4th 363; 853 P.2d 496; 20 Cal. Rptr. 2d 330 (1993) California’s venerated Supreme Court Justice Most wrote:

    “Open government is a constructive value in our democratic society. (See CBS, Inc. v. Block, supra, 42 Cal.3d at p. 651; see also Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1347 [283 Cal.Rptr. 893, 813 P.2d 240] (dis. opn. of Mosk, J.), and cases cited.) (14) The attorney-client privilege, however, also has a strong basis in public policy and the administration of justice. The attorney-client privilege has a venerable pedigree that can be traced back 400 years. “[T]he privilege seeks to insure ‘the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice . . ..’ ” ( Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599 [208 Cal.Rptr. 886, 691 P.2d 642]; see also Southern Cal. Gas Co. v. Public Utilities Com., supra, 50 Cal.3d at p. 37.) It is no mere peripheral evidentiary rule, but is held vital to the effective administration of justice. (See Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766, 770-771 [190 Cal.Rptr. 919, 661 P.2d 1073, 31 A.L.R.4th 1214].) The privilege promotes forthright legal advice and thus screens out meritless litigation that could occupy the courts at the public’s expense. (See City & County of San Francisco v. Superior Court, supra, 37 Cal.2d at p. 235.) The privilege serves to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” ( Upjohn v. United States (1981) 449 U.S. 383, 389 [66 L.Ed.2d 584, 591, 101 S.Ct. 677].)

    (8g) A city council needs freedom to confer with its lawyers confidentially in order to obtain adequate advice, just as does a private citizen who seeks legal counsel, even though the scope of confidential meetings is limited by this state’s public meeting requirements. ( Sacramento Newspaper Guild, supra, 263 Cal.App.2d at p. 58; 2 Witkin, Cal. Evidence, supra, Witnesses § 1114, p. 1054.) The public interest is served by the privilege because it permits local government agencies to seek advice that may prevent the agency from becoming embroiled in litigation, and it may permit the agency to avoid unnecessary controversy with various members of the public.

    The balance between the competing interests in open government and effective administration of justice has been struck for local governing bodies in the Public Records Act and the Brown Act. We see no reason to disturb the equilibrium achieved by that legislation.”

    The man who wrote that text, Justice Stanley Mosk, is considered by most lawyers to be the most scholarly, wise and brilliant California Supreme Court Justice in the State’s history.

    Clearly, Nancy O’Malley has little respect for the pubic interest, as articulated by Justice Mosk, in terms of protecting public agencies’ attorney-client privileged communications. It should not have been terribly difficult for Nancy O’Malley to ask the one basic question set forth by the Legislature: Is there evidence that the Councilwoman gave the City’s confidential attorney-client privileged information to a third party not entitled by law to receive it? If she answered that question “Yes”, then under Section 54963 Nancy O’Malley was supposed to send the matter to the Alamada County Grand Jury to decide what to do about it.

    The take-away from Nancy O’Malley’s decision, by developers’ lobbyists and the public officials they pay to elect, is quite simple: Go ahead, obtain and disseminate a public agency’s attorney-client privileged information, despite Government Code Section 54963. Most district attorneys will not even present the leaking of that confidential information to a Grand Jury for review.

    This result makes me want to vote for Steve Cooley (R) for California Attorney General on November 2, 2010. Cooley has a track record of prosecuting Democrat elected officials for misconduct.