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City Says Gallant Firing Legal, Brown Act Compliant

In a press release issued yesterday by Lisa Goldman, Acting City Manager for the City of Alameda, the City said that the Council’s actions on December 28th, including the firing of former Interim City Manager Ann Marie Gallant, were legal and in compliance with the Brown Act.

At the end of a closed-session City Council meeting on December 28th, Council announced that it had voted to effectively terminate then-Interim City Manager Ann Marie Gallant. Critics of the move have called it political-payback for Gallant’s initiation last year of an investigation into alleged Brown Act violations and other misconduct by Councilmember Lena Tam related primarily to the City’s negotiations with SunCal for the redevelopment of Alameda Point.

Community members have also been writing the Alameda County District Attorney’s office, and Alameda’s Interim City Attorney’s office to complain that Council’s actions on December 28th violated the Brown Act and the Charter of the City of Alameda.

The City’s press release yesterday noted that City Council retained Edward Kreisberg of Meyers Nave, a Bay Area law firm, and that advised the council that “all aspects” of the December 28th meeting complied with the noticing provisions of the Brown Act, the City Charter and Gallant’s employment contract. In the release, Vice Mayor Rob Bonta was quoted as saying, “The Brown Act indicates that personnel matters should be discussed in closed session for the protection of the employee. That’s what the Council did. The Council’s decision to issue the ‘notice of non-renewal’ to Ms. Gallant was well within our purview.”

Gretchen Lipow, a retired teacher and a community organizer who also has spoken out against the process around Gallant’s firing, said, “The fact that it took them 10 days to respond tells you something. There was a lack of transparency in this whole process, because inquiries to the Mayor [Marie Gilmore] showed that Ann Marie Gallant’s continued employment wouldn’t be a problem. People that might have gone to the meeting were declined the right to participate in the discussion the Council has before they go into closed session. Ann Marie Gallant herself said that she asked several times if her employment was on the agenda, and she said she was told no.”

Rosemary McNally, an Alameda realtor and a critic of the closed-session actions told Action Alameda News, “While campaigning, Rob Bonta was asked: ‘Should you be elected, what about Ann Marie Gallant?’ He responded: ‘I haven’t worked with her. I can’t make a decision.’ After only one week in office, Bonta voted to send Gallant out of her office. Consequently, while he remains in his seat as a council member, I will question everything he says.”

Benjamin T. Reyes, of Alameda, and an attorney at Meyers Nave, according to campaign filings, made contributions to both Lena Tam’s and Rob Bonta’s successful 2010 City Council election campaigns.

19 comments to City Says Gallant Firing Legal, Brown Act Compliant

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  • Barb

    I would not rely on the Meyers firm.

  • Jeannie

    Thank you for posting this article. Please let us know how much money Mr. Benjamin T. Reyes, of Alameda, an attorney at Meyers Nave, contributed to Lena Tam’s and Rob Bonta’s 2010 City Council election campaigns. Also, did Mr. Reyes make any contributions to our 2010 Mayoral candidates? If so, how much did Mr. Reyes contribute?

  • Need to go back through to double-check. An initial check of Gilmore’s filings didn’t show anything from Mayers Nave, but need to double-check that.

  • Vania

    Municipal lawyers looking to attract a new client, on a permanent basis, usually find a way to rationalize what their new-client-politicians want to do. That’s a lawyers job: “Figure out how to do it”. Of course, the lawyer’s rationale is never exposed to public scrutiny, unless there is litigation.

    As to the decision not to renew the interim city manager’s contract, and the decision to put 2 or 3 employees on administrative leave, I wonder how Mr. Kreisberg rationalized his way around the following provision of Cal. Government Code Section 549571 and 54957.1’s provisions, below:

    “54957(b) (1) Subject to paragraph (2), nothing contained in this
    chapter shall be construed to prevent the legislative body of a local agency from holding closed sessions during a regular or special meeting to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session.

    (2) As a condition to holding a closed session on specific
    complaints or charges brought against an employee by another person
    or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session
    rather than a closed session, which notice shall be delivered to the
    employee personally or by mail at least 24 hours before the time for
    holding the session. If notice is not given, any disciplinary or
    other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void.”

    “54957.1 (a)(5) Action taken to appoint, employ, dismiss, accept the
    resignation of, or otherwise affect the employment status of a public employee in closed session pursuant to Section 54957 shall be
    reported at the public meeting during which the closed session is
    held. Any report required by this paragraph shall identify the title
    of the position. The general requirement of this paragraph notwithstanding, the report of a dismissal or of the nonrenewal of an employment contract shall be deferred until the first public meeting following the exhaustion of administrative remedies, if any.”

    Two questions still remain, arising from those Government Code sections: (1) Were Ms. Gallant and Ms. Highsmith given the written notice and opportunity to participate in the closed session which Section 54957 requires? It sounds like the answer is no. (2) Did the City and its employees withhold announcement that Ms. Gallant’s contract was not going to be renewed until the first regular meeting after the Council’s closed session, as required in Section 54957.1? It sure looks like Ms. Goldman announced that Alameda was looking for a new City Manager BEFORE the first public Council meeting after the closed session meeting.

    At this juncture, no one will get to hear Mr. Kreisberg’s rationale blessing the Alameda City Council’s conduct with respect to Ms. Gallant and Ms. Highsmith, unless one of them sues the City, and even then his advice would be covered by the attorney-client privilege, unless the City raises the “advice of counsel” defense to allegations of statutory wrongdoing, let alone breach of the City’s Charter or the relevant employees’ contracts.

  • Why did the city retain outside counsel to explain their actions? Why is this press release not available to the general public-at-large to see on the City’s website? Where is Donna Mooney’s publicly requested opinion as the City Attorney?

  • Barb

    What was the chronological sequence of the Mayor/City Council hiring outside Counsel as set forth in the ACM Goldman’s press release? Where they hired to render an after the fact legal conclusion after the Council had already taken the Dec. 28 actions?? Or was the opinion given to the City Council in advance of those actions?

    You are right on Adam. Pursuant to the City Charter, the City Attorney is Alameda’s legal advisor. Sec. 8-2.
    “The City Attorney shall prosecute all violations of the ordinances of the City. He shall, subject to the general direction of the Council, board or elective officer having jurisdiction of the matter, prosecute and defend for the City, and all boards, officers and employees in their official capacity all proceedings before judicial and quasi-judicial tribunals. He shall not compromise, settle or dismiss any action for or against the City without permission of the Council. He shall not commence any action without permission of the Council or written instruction of the City Manager. He shall be the legal advisor of and attorney and counsel for the City and for all officers and boards thereof, in all matters relating to their official duties, and whenever requested in writing by any of them, he shall give his or her legal advice in writing.”

    Only the City Attorney is authorized to employ outside legal counsel. Alameda Charter, Sec. 8-5.
    “The Council, or any board with the consent of the Council, may empower the City Attorney, at his or her request, to employ special legal counsel.”

    Again, we do not have a strong Mayor or Council form of government. A majority of the City Council must act through its 3 employees. And only after giving notice pursuant to the Brown Act.
    Sec. 7-3. “Neither the Council nor any of the members thereof shall interfere with the execution by the City Manager of his or her powers and duties. Except for purposes of inquiry, the Council and its members shall deal with that portion of the administrative service for which the City Manager is responsible solely through him or her.”

    Did a majority of the City Council get together in a publically noticed meeting with a specific agenda item to retain outside counsel before they took these actions? Is anyone aware of any such meeting? And what were the announced actions if taken at a closed session? If not, the City Council may have commmitted malfeasance, violated the Brown Act, and Charter when the City Council hired this law firm as special counsel to advise the City Council on procedural issues related to the City’s Charter Officers. Mr. Kreisberg “specializes in providing labor and employment litigation services and advice to public and private employers throughout California”. One would hope that he checked whether or not retaining his firm was properly accomplished according to the Brown Act and City Charter before he rendered his legal conclusions. If not, his legal “conclusions” may not be very conclusive when challenged. Remember all the fuss about going to bid on certain contracts, priority to local residents, transparency and Sunshine? If he wasn’t legally hired, do we have to pay him with taxpayer funds? I am sure his next opinion will be that just like the fired City Officials in Bell, the taxpayers have to pay Tam’s bill to the Kekker firm of $44,000.
    Am I the only one who drives on Otis? It would be really great if our Council could quit hiring attorneys, and would use the money to fix the streets in this town.

  • Betty

    Anyone read todays Chronicle?
    Did anyone read Highsmith’s conract?
    Are we on a ship of fools?
    What’s going on?

  • It looks like SunCal had Sam Singer place a story in the Comical intended to make Highsmith and Gallant look bad. Carolyn Jones has proven herself to be very gullible over the years.

    Highsmith saw what was coming and got a new job before Bonta/Tam/Gilmore could do to her what they did to Gallant.

    One has to wonder who Carolyn Jones spoke with to get a broader perspective on the story.

  • Barb

    Ah Betty, the answers to your questions:
    To the 1st, No. Why read an uninformed, big city newspaper to find out what is going on in town? Since Lance Williams left, there hasn’t been any good local news reporting at the Chron. Only developer fed stories without research, opposing comment, or insightful commentary.
    To the 2nd, obviously Highsmith read it. Our fine legal eagles on the Council, YALE grad BONTA, Boalt Grad GILMORE, a big fat “No”.
    The answer to your 3rd question is “Yes!”
    To the 4th, the “lawyers” running our City in form of the Council, appear to intend to screw up our city so badly, that we will thank them when SUNCAL comes back in. We will be so broke from paying attorneys, and damages to injured employees, that the City will never be able to pay to fix the potholes.

  • Betty

    I agree….Suncal is coming….maybe in the form of our new city manager or the new property manager at the point.
    Then we can see how truly this last election was bought.
    In regards to Lisa Goldman’s statement…when you pay a lawyer enough he’ll find the answer you’re looking for. I take this as a grain of salt.

  • Barb

    Well Yeah, we don’t get paid if we don’t give the client the best answer we can that supports his or her position. And the answer that we are given publically does not mean that is the true opinion of the City Attorney. I once brought a writ against the City of Alameda concerning the height of buildings, not to be 3 stories in Ballena Bay. The then City Attorney publically opposed and fought it. When I was elected to the City Council I was given access to records which reflected that the City Attorney thought I was legally correct. So there is the public legal conclusion bought and paid for, and the private thoughts of the attorney. It would have been interesting to see the attorney’s legal advice prospectively, e.g. should we give detailed notice, timing, personal service of employees on vacation? What it appears that we have is an opinion asked for after the fact as to how to best cover one’s rear end. The attorney may be just doing damage control.

  • dlm

    I think the Council is trying to skirt both the Brown Act and the City Charter. The Council is claiming that Gallant’s title did not appear on the 12/28 agenda item re “dismissal of an employee” because the Brown Act requires confidentiality for termination; however, it’s also saying that Gallant wasn’t really fired, just placed on admin leave, in order to sidestep the Charter language. So on the one hand she’s fired, on the other hand, she isn’t.

    It’s legal hairsplitting and in terms of honest communication, it’s ridiculous.

    They rushed to do this immediately, to give Gallant the 90 day notice on contract nonrenewal, then put her on leave in the meantime,so she’d be effectively gone but not really “dismissed” until the 90-day charter period had ended. So again that leaves the question, if Gallant wasn’t really fired, then how does the Council justify the lack of public notice on the 12/28 agenda?

    I’m sure this was somebody’s grand plan. I have to wonder if Tam, Gilmore and Bonta agreed to this before the 12/28 meeting, which would certainly be a Brown Act violation. How would they get the logistics worked out otherwise? Does it seem likely that outside counsel could figure this out on the spot?

    I find that difficult to believe.

  • Betty

    They probably had it all figured out by election night.

  • Barb

    Would Gilmore call a Special Council meeting without knowing she had the votes to do whatever it was she had planned? Think how foolish she would have looked if she didn’t talk to Tam before the meeting, and either talked to Bonta herself, or had Tam do it. Didn’t Bonta make admissions during the campaign that he didn’t know enough about Gallant to fire her? Either way it is a serial comunication stream designed for the sole purpose of avoiding the reguired proper notice to the public, and the affected employees. dlm, you have picked up on the most obvious flaw in their thinking. If it is an exception based on firing the employee – Gallant – then they cannot claim they did not fire Gallant. The Council and the ACM are scurrying around like chickens with their heads cut off trying to explain their lack of knowledge: 1) that Alameda has a weak Mayor government, 2) the Brown Act requires notice at least 24 hours before a Special meeting and to the affected employees, 3) Alameda’s Charter precludes a newly elected councilmember from taking this action for 90 days, 4)and a basic lack of HR skills – one doesn’t call an employee over the telephone and fire them. No matter what you call it. And no high priced lawyer bought and paid for after the fact with our tax dollars is going to make what they did right or palatable to the voters.
    Special sessions are to deal with emergency situations that arise unexpectantly. Such as the 1989 earthquake and building the pier for the ferry. Not because you get wind that the ICM is on vacation and you can fire her while she is gone, rather than be forced to have a face to face meeting with her. And sine she was on vacation, she couldn’t have been doing much concerning the running of the City anyway? What would it have hurt to wait the few days to properly notice a meeting and then take whatever action they wanted to take if it was truly legal? What action is it that this council is so eager to take that it cannot even wait a few days to do things properly?

  • Betty

    It’s going to be a long long four years.
    Alameda is so special I hate for it to be destroyed by 3 people.
    We’ll just have to wait to see what happens and take an active part in our government to stay aware of what they are trying to pull.
    Its very sad to have people in office who “are not nice people”, who seem to be thinking of themselves and not the citizens of this town.

  • Anon

    Doesn’t have to be 4 years.

  • Smart voter

    Doesn’t have to be 4 years.

    Exactly, in the 1930s the whole City Council was recalled for corruption, history has a way of repeating itself.

  • Ellie

    Gilmore, Bonta and Tam are proving to be nothing more than puppets, with SUNCAL pulling their strings. The Brown Act, City Charter and simple management skills are now missing in the City’s daily operations. The taxpayers get to pay for two City Attorneys, two City Managers and damages to all the wrongfully terminated employees. Those that remain should be so afraid of what the puppeteers are going to make the puppets do next, that they cannot do the jobs they were hired to do well. The law firm of Meyers, Nave is getting paid to place a rubber stamped “Approved” on the actions after the fact. Do not confuse Meyers Nave’s apparent insulation from the actions of the SUNCAL puppet show, to mean that they have provided independent quality legal conclusions.

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