CITY OF ALAMEDA

CLAIM FOR REIMBURSEMENT OF EXPENSES

Labor Code 2802 Government Code 995

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Lena Tam claims reimbursement for necessary expenditures incurred by her in direct

consequence of the discharge of her duties as a member of the City Council of the City of Alameda,

as follows:
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above.
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22 1. Claimant can be contacted through her counsel, whose name and address appear

2. Notices concerning this claim should be sent to counsel for the claimant, whose

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name and address appears above.

3. Commencing sometime prior to May 26,2009, the Interim City Manager and City Attorney of the City of Alameda hired the law firm of Colantuono & Levin to institute claims of

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1 misconduct against Councilwoman Tam in connection with actions taken by her in the course of her 2 official duties. These actions were intended to coerce Councilwoman Tam to abandon her own

3 judgment on certain matters coming before the City Council and to frustrate the will of the voters

4 who elected her. In pursuit of this agenda, the Interim City Manager and City Attorney directed the 5 law firm of Colantuono and Levin to: (1) request the Attorney General of the State of Cali fomi a to 6 cause the filing of corruption charges against Councilwoman Tam - the Attorney General refused;

7 (2) institute proceedings before the Alameda County Grand Jury requesting it to cause the removal of 8 Councilwoman Tam from office - the Alameda County Grand Jury refused; (3) repeatedly

9 demanded the Alameda County District Attorney to file corruption charges against Councilwoman 10 Tam - the Alameda County District Attomey refused. In furtherance of this campaign to coerce

11 Councilwoman Tam into abandoning the duties of her office and thereby defeat the will of the voters 12 who elected her, the proponents of this campaign accused those public officials who refused to join 13 it, including the Alameda County District Attorney, of conspiring with Councilmember Tam, in an 14 action reminiscent of the long discredited tactics of Senator Joseph McCarthy in his operation of the 15 United States Senate's Subcommittee on Investigations in the 1950's.

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17 All of these actions were instigated by the Interim City Manager and the Alameda

18 City Attorney, who claimed authority to do so pursuant to Alameda City Charter Section 7-2(M). 19 Each of the actions taken were undertaken for the purpose of frustrating Councilwoman Tam in the 20 performance of her duties as an employee of the City of Alameda elected by the voters to serve as a 21 member of the Alameda City Council and related boards and commissions.

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23 Not a single one of the multiple complaints made against Councilmember Tam were

24 found to have a basis by the Federal Bureau of Investigation, the Alameda County Grand Jury, or the 25 Alameda County District Attorney. On concluding her investigation into the charges, District

26 Attorney Nancy O'Malley called them ''wild and completely unsupported."

27 The Interim City Manager and City Attorney spent an enormous amount of public

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1 funds to pursue Councilwoman Tam, the full amount of which has not been made known, even to the

2 City Council, who have the legal responsibility to monitor and approve of these expenditures.

3 However, those costs included a minimum of $65,000. paid to the law firm of Colantuono and Levin, 4 an amount which does not include its final billing.

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As a result of these events, on July 17, 2010, Councilwoman Tam retained attorneys

7 Keker and Van Nest to defend her in these matters. On September 27,2010, Councilwoman Tam 8 retained the Law Offices of Laurence F. Padway to secure reimbursement to her of the funds which

9 she paid to Keker and Van Nest, as well as the funds which she has paid and will pay to the Law 10 Offices of Laurence F. Padway.

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12 As an employee of the City of Alameda, Councilwoman Tam is entitled to

13 reimbursement for necessary expenses incurred by her in connection with her office, including her

14 legal expenses pursuant to California Labor Code 2802, which provides:

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2802. (a) An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful

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(c) For purposes of this section, the term "necessary expenditures or losses" shall include all reasonable costs, including, but notlimited to, attorney's fees incurred by the employee enforcing therights granted by this section.

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Reimbursement of these expenses is appropriate under the Supreme Court's decision

24 in Edwards v. Arthur Andersen LLP, (2008) 44 Cal. 4th 937, 952, which holds:

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"California has a strong public policy that favors the indemnification (and defense) of employees by their employers for claims and liabilities resulting from the employees' acts within the course and scope of their employment." (Chin et al., Cal. Practice Guide:

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Employment Litigation (The Rutter Group 2007) ~ 3: 1, p. 3-1 (rev. #1, 2007).) Labor Code section 2802 codifies this policy and gives an employee a right to indemnification from his or her employer. (See Grissom v. Vons Companies, Inc. (1991) 1 Cal.App.4th 52,59-60 [1 Cal. Rptr. 2d 808 v. Vons Companies, Inc. (1991) 1 Cal.AppAth 52, 59-60 [1 Cal. Rptr. 2d 808] [the purpose of Lab. Code, § 2802 is "to protect employees from suffering expenses in direct consequence of doing their jobs"]; Janken v. GM Hughes Electronics (1996) 46 Ca1.AppAth 55, 74, fn. 24 [53 Cal. Rptr. 2d 741] [Lab. Code, § 2802 "shows a legislative intent that duty-related losses ultimately fall on the business enterprise, not on the individual employee"].)

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Council woman Tam's use of outside counsel is appropriate under the rule of Grissom v. Vons Companies, Inc. (1991) 1 Cal. App. 4th 52, especially since the City of Alameda made no

provision for her representation by other counsel. The City of Alameda knew of the expense as it was being incurred, and therefore, should have reimbursed it immediately, instead of causing additional expense to be incurred in order to collect the sums due. Stuart v. Radioshack (N. D. Ca1.,

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2009) 641 Fed. Supp. 2d 901.

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In addition to the payment of the costs which she has incurred, she is entitled to interest thereon at 10% per annum until paid. Civil Code 3287.

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As an alternative basis for the recovery of her legal expenses as set forth above, Councilwoman Tam notes that the City should have provided her with a defense pursuant to the

general rules of agency and pursuant to Government Code 995 et seq. She is further entitled to

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recover them as damages since the actions taken against her violate the Unruh Civil Rights Act and the Civil Rights Act of 1864, 42 U. S. C. 1983 et seq. Notwithstanding the above, the most readily apparent basis for the City to reimburse those expenses to Councilwoman Tam arise under Labor

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Code 2802.

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4. Councilwoman Tam has incurred the following expenses which are the subject of

this claim:

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$28,233.45 paid to Keker and Van Nest on August 26,2010;

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8,208.89 paid to Keker and Van Nest on October 13, 2011.

3,000.00 paid to the Law Offices of Laurence F. Padway on September 27,2010.

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4,500.00 payable to the Law Offices of Laurence F. Padway as of November 22,

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Interest runs at 10% per annum from those dates. Please note that the total incurred of

7 $43,942.34 is considerably less than the Interim City Manager and City Attorney have spent in

8 prosecuting their frivolous complaints, and are, therefore, reasonable ..

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10 5. TI1e public employees causing the injury are the Interim City Manager and City

11 Attorney, and any members of the Alameda City Council who have supported their efforts.

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6. The amount claimed is set forth in 4, supra. Should this claim not be paid in

14 timely fashion, and a lawsuit required to collect the sums due, the legal fees for that litigation would

15 be added to the claim.

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November 22,2010

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=:

L-~--

Laurence F. Padway Gayle Godfrey Codiga Attorney for Lena Tam

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