Teresa Highsmith - Claim against Alameda

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WiJIiarR. Rapoport

LA W OFFICES OF

WILLIAM R. RAPOPORT643 BAIR ISLAND ROAD, SUITE 400

REDWOOD CITY , CALIFORNIA 94063

(650) 340-7107

March 15 2011

VIA HAND-DELIVERED

Office of the City Clerk

City of Alameda

2263 Santa Clara Avenue

Room 380

Alameda, CA 94501

Re: Terri Highsmith v. City of Alameda

Enclosed herewith is the following:

CLAIM FOR PERSONAL INJURY

(X) Please find attached the above document.

Very truly yours

Katie Camerlen

/kc

Enel.

I hereby acknowledge receipt of the above-entitled document.

DATE: kf\

'" "

Facsimile

(650) 572- 1857

Refer to File



TERESA HIGHSMITH

Plaintiff

CLAIM FOR PERSONAL INJURY

11 J.1, lj ufvs.

CITY OF ALAMEDA

Defendants.

TO ALAMEDA CITY CLERK:

You are hereby notified that Teresa Highsmith ("Claimant") claims damages from the

City of Alameda as follows:

Claimant' s address is c/o William R. Rapoport; Law Offices of Wiliam R.Rapoport, 643 Bair Island Road , Suite 400, Redwood City, CA 94063.

The amount in damages exceeds $10 000 and jurisdiction over this claim rests inthe superior court, unlimited division.

The facts giving rise to this claim are set forth in Exhibit 1 attached hereto and

incorporated by this reference.

As of the date of this claim, claimant has incurred or wil incur the followinginjuries , damage and loss: wage loss , fringe benefits loss, emotional and physicalinjuries , damage to her reputation, and general damages based upon statutoryviolations and construetive wrongful termination.

Marie Gilmore and Lena Tam are two of the publie employees causing claimant'injuries through their conduet as alleged in Exhibit 1 attaehed hereto.

All notiees or communication regarding this claim should be. sent to WiliamRapoport, Law Offices of Wiliam R. Rapoport, 643 Bair Island Road , Suite 400Redwood City, CA 94063.

Lc/

??-

Ilham R. Rapoport /Attorney for Teresa Highsmith

Dated: March 15 2011



EXHIBIT 1

(Attachment to Claim of Teresa Highsmith vs. City of Alameda)

This claim is brought by Ms. Teresa Highsmith ("Claimant") for violations of her

employment rights as the City Attorney for the City of Alameda. On December 28 2010Claimant was involuntarily plaeed on paid administrative leave by the City Council following a

lengthy executive session. Although Claimant had not received any prior notice that the City

Council intended to discuss her employment status at this meeting, she nevertheless showed up,

but was not asked any questions, despite her statement of availability during the public comment

portion of the closed session. Following a five and one-half hour closed session discussion , the

Couneil then, in open session, placed Claimant on paid administrative leave with no explanation;

since that time, Claimant has been locked out of the City s computer, had her City- issued cell

phone disconnected without prior notice , and has been instructed to turn in her keys to City Hall

and retrieve her personal belongings under supervision.

The facts set fOlih herein indicate that the Council's decision, whieh amounts to an

involuntary suspension, was motivated in substantial part by an ilegal motive , namely, in

retaliation for Claimant reporting ilegal and criminal behavior by one of the CouncilmembersLena Tam , in connection with Tam s dissemination of privileged and eonfidential information to

SunCal , a developer who has been negotiating with the City for several years. The

circumstances and timing of the involuntary suspension also constitute a violation of the Brown

Act and Claimant's due process rights.

The facts upon which the above claims are based include the following:

In the Fall of2009 , several members ofthe City Council , including Mayor Beverly

Johnson and Vice-Mayor Doug deHaan, individually contacted Claimant regarding their belief

that a member of the City Council was leaking information obtained during closed sessions to

the developer, SunCal , to the detriment ofthe City. Claimant was also concerned about closed

session leaks , because SunCal' s attorney, Amy Freilich, had on more than one occasion during

meetings questioned a legal position articulated by Claimant, which had only been previously

discussed with the City Council in closed session. Initially, there was no direct evidence

regarding the source of the leak of the information.

On March 16 2010 , the City Council met. According to the closed session agenda, there

was a legal discussion regarding a matter ofpotcntialliability of the City. On the open session

agenda that evening, there was an item requested by SunCal , asking the City Council to toll the

60-day "cure" period for a finding of default under the ENA. During the public discussion of

this SunCal request , Councilmember Lena Tam-an open and consistent supporter of SunCa1-began to ask questions of Claimant that directly mirrored the adverse legal position of SunCal

that Claimant had previously heard Amy Freilich assert. Claimant politely attempted to stopTarn from her line of questioning, to no avail. The next day, on March 17 2010 , Claimant

received a critical email from Councilmember Tam. Tam also called for Claimant s performance

evaluation. On March 18 , 2010 , Lena Tam and Marie Gilmore exchanged emails agreeing to

prepare a negative performance review for Claimant. On March 19 2010 , a second critical email



was sent by Lena Tam to other councilmembers. On March 21 , 2010, the City of Alameda

received a letter from SunCal attorney Amy Freilich dated March 17 2010 , which parroted the

testimony that Tam had attempted to placed in the record the evening of the March 16th , Council

meeting.

A subsequent internal investigation authorized by the Interim City Manager revealed thatLena Tam had repeatedly blind-copied SunCal principals and others on emails and otherdocuments containing confidential information-in violation of the City s fiduciary interest and

in violation of Claimant's personnel rights; additionally Ms. Tam repeatedly blind-copied Marie

Gilmore, as well , which was not apparent to any other member of the City Council. In May, and

again in July 2010 , Michael Colantuono, as the City s outside conflicts counsel , sent several

letters , along with extensive documentary attachments to the Alameda District Attorney s Office

requesting that the matter be turned over to the civil grand jury for investigation.

Thereafter, on July 6 , 20 I 0 , the City Council held a closed session, from which Lena

Tam was excluded. After the closed session, Mayor Johnson read a statement in open session

that Ms. Tam had been accused of corrpt misconduct in offce for leaking confidentialinformation to SunCal and others without the consent.ofthe City Council and that the matter had

been brought to the District Attorney for referral to the grand jury. The City Council majority

also released the Colantuono reports to the public , with the prior approval of the District

Attorney.

Over the next several months , Marie Gilmore made several hostile and negative

comments to Claimant about her legal opinions. The Council again requested the DistrictAttorney take action in order to permit the City to conduct its business efficiently. On

September 3 , 2010 , District Attorney Nancy O' Malley issued a written statement that her office

had decided not to pursue any criminal charges against Tam , allegedly based on a lack of

suffcient evidence of any criminal violation. The District Attorney also refused to refer the

matter to the civil grand jury for its review of the allegations of corrupt misconduct in officeunder Govcrnmcnt Codc Section 3060. Shortly thereafter, Lena Tam held a press conference

claiming that she had been "exonerated." Later, at the City Council meeting of September 7

2010 , Marie Gilmore , after agreeing that Lena Tam had been "exonerated " publicly stated that

the City Manager and the City Attorney s role in the Tam investigation would be dealt with in

their performance evaluations.

In the September and October 2010 time frame , Marie Gilmore took the following

actions against Claimant including: (1) Gilmore s request that the City Attorney and the City

Manager s costs of the Tam investigation be audited; (2) that an outside expert be hired for

Brown Act training, rather than having such training conducted by the City Attorney (which was

the normal practice); (3) discontinuing the investigation into Lena Tam; (4) that Michael

Colantuono s contract be terminated; and(5) Marie Gilmore also falsely accused Claimant ofhaving approved a Worker s Compensation settlement without prior Council authority, which

never happened. In the October 2010 time frame, Marie Gilmore repeatedly attempted to have

the City Council conduct a performance review of Claimant. Although the matter was agendizedrepeatedly, no actual performance review was conducted.



In mid-December 2010 , newly elected Mayor Marie Gilmore stated to Claimant that she

did not wish to continue to work with Claimant and that Claimant would have to leave her

position as City Attorney. Later that month, at a special meeting on December 28 , 2010 , the City

Council , led by Marie Gilmore, placed Claimant on paid administrative leave.

Claimant intends to assert at least the following causes of action: (1) retaliation inviolation under Labor Code 91102. 5; (2) retaliation in violation of Government Code 912653(b);

(3) violation of Governent Code 53296; (4) Brown Act violations; and (5) several common

law torts , including inter alia defamation, intentional infliction of emotional distress and

negligent infliction of emotional distress. Further claims based on breach of her contract ofemployment may also be asserted, depending upon the City s future actions regarding Claimant.

Claimant seeks damages for the financial losses , pain and suffering, ongoing emotional distress

and reputational hann she has suffered, as well as attorney s fees and costs she has incurred and

wil continue to incur.

Documents

Teresa Highsmith - Claim against Alameda