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Lead Investigator in Lena Tam Investigation Retires

A spokesperson for the Alameda County District Attorney’s office has confirmed that Assistant District Attorney Ann Diem, the lead investigator in the Lena Tam investigation, retired last Friday.

Ms. Diem’s retirement came a day after the D.A.’s office sent a letter to City of Alameda Special Counsel Michael Colantuono regarding the findings of their investigation. The spokesperson did not respond to a request to confirm that District Attorney Nancy O’Malley, who lives in Alameda, had recused herself from the investigation.

8 comments to Lead Investigator in Lena Tam Investigation Retires

  • 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? Under the niceties of the California Bar’s Rules of Professional Conduct, referring a matter to a subordinate Assistant District Attorney in the same office is not considered enough of a recusal by a District Attorney. Thus, regardless of who made the decision to “do nothing”, as Alameda District Attorney the decision IS Nancy O’Malley’s decision.

    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 Mosk 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.

    Nancy O’Malley’s decision makes me want to vote for Steve Cooley (R) for Attorney General on November 2, 2010.

  • Barb

    Well you know that candidate Brown has his hands full and will not give us the time of day. Any jurisdiction with the feds? Seems like we are all being deprived of our rights guaranteed under the constitution. It gives new meaning to phrases like the right to seek redress and petition elected officials if they only respond to SUNCAL.

  • Hot R

    Just as I predicted. The only one to be gone will be the ICM and the City Attorney. Thanks so much for wasting $100,000 on this politically motivated investigation. Hello Bev. Johnson! Everyone knows you were behind it.

    And Vania – give me a break. O’Malley didn’t pursue it because there was nothing there to pursue. Her responsibility is to bring good cases before the Grand Jury, not politically motivated pissing contests like this. Gee do yo think the Grand Jury has any other things to investigate?

    Please don’t spin this as a victory for SunCal, as they are out of Alameda’s hair, except for the lawsuit encouraged by the ICM. That will cost way more in legal fees than the $100,000 she spent on pursuing Tam. And now she wants to bring a civil lawsuit against Tam. Yipes! The ICM and the City Attorney will be gone within the year.

  • It’s always useful to hear from Hot R., for he’s so seldom right. If his predictions prove wrong, yet again, as he was so off-base on Measures B and E, will he simply retire from the scene? I doubt it. He glories in being contrary but wrong-headed. Must be the meds.

    As for SunCal, they’re gone, their lawsuit notwithstanding. It will be dismissed. And when is Nancy O’Malley running for re-election? Just as we voters can express our displeasure and disrespect with Tam, and McMahon, we can certainly vote her out of office, in that time-honored tradition, “Throw the Rascals Out!” The ICM and City Attorney will still be serving us well long after those Little Rascals are history!

  • Barb

    Vania’s comments are well researched, well thought out, and good legal work from an obviously very experienced attorney. Hot R, is well just, hot air as usual from an obvioulsy very prejudiced perspective. Having Spoken with Ann Diem and other DA’s about the investigation, my sense it is a function of a number of factors including, cost, likelihood of winning, and that the voters will negate the need for the DA to spend money on any prosecution if the voters recognize and acknowledge the extent of what TAM did. If Blagovich can get a hung jury, think of the wasted money on this one! But I think both Green and Hot R are wrong about predicting that SUNCAl is out of our hair, except for the lawsuit. Anyone who thinks that re-electing TAM or electing IZZY ASHCRAFT and BONTA isn’t voting to let SUNCAL come back in the front door and abuse the elected officials, and citizenry hasn’t been round very long. It is the most arrogant, unresponsive developer I have ever seen. To litigate after 85% plus of the voters tell you to leave, is unheard of. And I can only hope that TAM didn’t secretly tell SUNCAL to do any of this. We will never know.

  • Hot R

    Greenie – (you)Don’t know much about history, don’t know much psychology…

    And I was never for Measure B, do not favor SunCal, and never predicted Measure E would pass, only wished it had. But I did predict on this website that Tam would not be prosecuted. This is a prudent decision, not a political decision.

    My objection to the ICM’s action regarding SunCal is that she “bought” the City a bad faith lawsuit by suggesting before the final vote against SunCal that Alameda would develop the base itself.

  • Hot Air, no I’m not an advanced student of alameda history nor human psychology as you are. I prefer the study of the other four great apes.

    And, Barb, perhaps my expectation that SunCal will fade away is just wishful thinking, but I spent a lot of time confronting them in the Seventies in Orange County, with my second wife from Costa Mesa and my John Birch Society in-laws in Newport Beach/Balboa Island. They tend to file lawsuits they never win, just to rattle their opponents, sort of like Hot Air’s rhetoric and predictions.

    But I predict that SunCal will fail in court as badly as they did at the ballot box, and that the ICM and City Attorney will be here long after we defeat Tam, Bonta, Izzy and Jeff, as well as Jensen and McMahon in November. Alameda voters are a lot more hip than Hot Air wishes we were! And than he is…


  • […] the City’s responsibility to pay for it if she does. She wasn’t falsely accused, the lead investigator retired and her longtime friend, the DA, Nancy O’Malley declined to investigate it further, saying, […]