Alameda Council Member Cleared of Leak Allegations
City Council may still consider lawsuit against Lena Tam
District Attorney Nancy O'Malley announced Tuesday morning that "an insufficient factual and legal basis exists" for her office to pursue a criminal investigation into allegations Alameda City Council member Lena Tam leaked confidential information and wrongly conducted city business over e-mail. O'Malley said she would not forward information to the county's grand jury to seek Tam's removal from office.
"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," which requires that local government meetings be open to the public, the district attorney said in a press statement released Tuesday morning. "The District Attorney [also] 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."
The allegations against Tam have taken place in a contentious political environment, as the city of Alameda considered, and ultimately rejected, a bid from developer SunCal Companies to redevelop Alameda Point, a decommissioned naval base. Tam was accused of leaking confidential information to SunCal, which was the project's master developer at the time, and to the local firefighters' union. Both denied the claims. Tam was also accused of violating California's open-meeting law when she blind-copied Councilwoman Marie Gilmore on e-mails she sent to other council members to discuss city business.
Tam said Tuesday morning that she has been "fully and completely" exonerated of misconduct accusations by the Alameda County District Attorney's office. But Interim City Manager Ann Marie Gallant — who Tam said should resign — said the result of the district attorney's investigation is "tentative" and that she will ask City Council members to consider suing Tam.
In a press conference and rally on the steps of Alameda's City Hall attended by around 100 supporters, Tam said the accusations were part of a smear campaign undertaken by Interim City Manager Ann Marie Gallant because of political positions Tam has taken.
"Today, career bureaucrat Ann Marie Gallant's attempt to interfere with Alamedans' rights to representation by their chosen elected officials was exposed," Tam said. "I fought back against these malicious and politically motivated allegations to correct a serious injustice that has been done against this community."
In addition to asking that Gallant resign following the investigation, Tam also asked for an apology from Mayor Beverly Johnson.
A group of local firefighters showed up to Tuesday's press conference and rally to echo Tam's comments, as did two dozen members of the local Asian-American community and local politicians.
"From the very beginning, when I heard about these allegations, I thought this was just ridiculous," said Alameda County Supervisor Alice Lai-Bitker, who said the investigation took a tremendous emotional and financial toll on Tam. "As a resident and as an elected officials, I had a question: Why is this happening?"
Tam, who asked why she was being investigated by Gallant when questions about Fire Chief David Kapler and Gallant's contracting practices were ignored, said the investigation into her cost the city more than $100,000, money she said could have been spent on other things.
But Interim City Manager Ann Marie Gallant said the district attorney's findings were "tentative" and that the City Council would be considering a lawsuit against Tam.
In a press release issued while Tam's press conference was taking place, Gallant said the council will hold a special, closed-door session without Tam on Thursday to consider a lawsuit against her. Gallant, who also accused O'Malley's office of wrongly taking a legal argument from Tam's attorney, John Keker, and of failing to pass that information on to the city's outside attorney, Michael Colantuono, said the city will be "avoiding" holding closed-session meetings that include Tam.
"Councilmember Tam continues to defend her conduct and apparently believes she did nothing wrong. Thus, there is every reason to believe she will continue to leak City confidential information to developers, unions and others if further confidential information is provided to her," Gallant wrote.
An attorney working for the city had asked that a grand jury consider whether to remove Tam from office.
City Attorney Teresa Highsmith told council members about the investigation of Tam's conduct on July 6 because she said she feared it could have an impact on the upcoming vote on whether to allow SunCal to continue as Point developer, and the council voted that night to release the details to the public. The council has not held a closed session since details of the investigation were released.
Highsmith said in a later interview that the investigation came about in March after the staffer who handles Mayor Johnson's e-mails flagged messages from Tam to Johnson that she believed violated the "serial meeting" prohibition of the state's open-meeting law. Since the meetings concerned Highsmith's performance, she contacted Colantuono, an attorney who has worked with the city for more than a decade. Gallant said she ultimately authorized an investigation.
Colantuono later sent two sets of investigative reports to the district attorney's office claiming Tam had violated the serial meetings law on several occasions by blind-copying Gilmore to e-mails she sent to other council members. He also claimed Tam had released confidential information to SunCal and the firefighters, both of whom the city was in the midst of contentious negotiations with.
An attorney for SunCal said the investigation into Tam was part of a "malicious campaign" on Gallant's part to get the developer thrown out of town, and he said the accusations against her were an effort to keep Tam, who supported the developer, from voting on whether to allow them to stay. Tam ultimately abstained from the July 20 vote that effectively sent the developer packing.
Representatives from the firefighters' union also denied they received any privileged information from Tam, saying the documents she was accused of leaking them were ones they already had.
The reports also showed Tam questioning management practices at the fire department and asking for a review of Highsmith's performance in the wake of a testy public exchange between the women at a March 16 council meeting, and they include exchanges between Tam and a financier who questioned Gallant's efforts to hand bond business to a rival firm with a partner she had once worked for. They also showed that Tam released information to a pair of local bloggers and this reporter.
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