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Monday, August 29, 2011

City Attorney Ballot Will Be Challenged After The Vote

Attempt To Deep Six Voters Will:
Councilman Bukowski Charges City Attorney With Conflict Of Interest

November Ballot May Not Have Effect

Councilman Ken Bukowski has revealed what he says may be an illegal act perpetrated by City Attorney Mike Biddle meant to thwart Emeryville voters should they decide to get rid of the City Attorney in a ballot initiative in November.  
Mr. Bukowski alleges that the City Attorney may have lied to the council to assure the failure of the ballot measure against him and improperly used the office of city attorney to influence the council to adjust the employment contract he has with the city, making the outcome of November's election moot.

At the heart of Mr. Biddle's argument against the looming voter initiative is his insistence that he is safe from the ire of the electorate since he is technically not a city employee. Rather, according to Mr. Biddle's novel reasoning, he is an employee of MESA, an arcane Emeryville management authority.  Mr Biddle claims that his connection to MESA renders impotent any ballot measure referring to him as city attorney.

Councilman Bukowski, meanwhile asserts that he has found a "fatal flaw" in Mr. Biddle's creative legal opinion, rendering the MESA employment argument bogus.
According to Mr. Bukowski, when former Berkeley City Attorney Manuela Albuquerque first introduced the MESA employment theory before the council on Mr. Biddle's behalf, an employment contract between Mr. Biddle and the city was in existence and in force. Mr. Bukowski posits that Mr. Biddle subsequently took that contract back to the council and requested the MESA Board (the same people as the city council), approve the contract.  Such a move would change Mr Biddle's employer to MESA and give credence to his argument that he is not employed by the city.
Councilman Bukowski says the subsequent action is improper because Mr. Biddle used his power as City Attorney to influence the decision of the city council to change his employment agreement so as to be protected from a potential adverse citizen voter outcome: a conflict of interest.

In addition Mr. Bukowski charges that Mr. Biddle at the same time also asked the city council, acting as MESA board, to retroactively revise, amend and approve all of his prior expired employment contracts with the city to erase any evidence that he works for the city or ever did, cementing his MESA ties and flummoxing any attempt by voters to remove him from office.

The Management of Emeryville Services Authority (MESA) was set up in the 1990s by the city council to help city employees avoid social security taxes due to provisions in the federal tax code regarding municipal employees.

Council member Jennifer West also seemed dismayed by the City Attorney's MESA employment argument, calling it a "legal tactic".  She told the Tattler, "I don't see any practical distinctions between employment by MESA versus the city of Emeryville except for the social security implications."  She agreed the citizens ballot initiative vote, should it turn out against Mr Biddle will be ineffective; "In a legal interpretation, this ballot initiative will have no effect" she cautioned.
Ms West however inveighed against her colleague Ken Bukowski and the whole City Attorney measure, "This is one city council member's attempt to circumvent the [council] majority."  She added, "He [Bukowski] has been ineffective in getting what he wants, which is to eliminate the City Attorney.  He's manipulating Emeryville voters with this ballot measure."

Attempts to contact the City Attorney, Mike Biddle were unsuccessful Monday.


  1. Is anyone else tired of Bukowski's rants? He only comes alive during election season.

    It is sad when an elected official has no record to put forth as the reason we voters should reelect him but instead has to make a target of an individual. An individual whose employment could easily be terminated if 3 Council members agree that his job performance is lacking.

  2. OMG! If all this is true, Biddle really is a sleazeball. If only Biddle would work as hard for the city of Emeryville as he obviously does trying to save his job...

  3. The problem I have with the situation is the City Council's complete reluctance to (1) review Mr. Biddle's performance record and (2) the City Council's complete refusal to even CONSIDER using a law firm as City Attorney instead of a staff attorney. Using an outside law firm as city attorney is not novel - many cities do it to control costs. Now that the building "boom" (bubble?) is over, it may very likely be much more cost efficient to use an outside law firm instead of a staff attorney to advise the City. Why have a staff of 3 (Mr. Biddle, an associate attorney, and a legal assistant) when things are quieter than they were 5 years ago?

    In terms of Mr. Biddle's effectiveness, I am appalled by the Leslie Pollard law suit and settlement in 2007, which apparently cost Emeryville between $3.6 and $4.3 million depending on which source you look at. According to the SF Chronicle, "The payout ranks among the largest in the state involving an individual employment lawsuit filed against a public entity." ; also, .

    This employee had successfully pursued and won a union arbitration for discrimination 10 years earlier, yet when she brought later complaints about discriminatory comments was run out of her job, despite the fact that THE CITY ATTORNEY AND HUMAN RESOURCES MANAGER SIT IN THE SAME SMALL BUILDING.

    Is that isn't mismanagement and incompetency, what is?

    Michael Webber
    City Council Candidate 2011

  4. and what does attorney stuart flashman have to say about all of this? he spoke at a council meeting when this issue first came up.

  5. I'm with '9:04 Anonymous' as are most of the people I have talked to. Ken Bukowski is the Jose Conseco of politics--he only puts up a show when his 'contract' is up.

    This whole City Attorney initiative is a ploy to distract us from Ken's sundry past transgressions. It apparently has worked. It seems to have given this blog cover to endorse Bukowski without endorsing him.

    Anonymous is completely right. It only takes 3 votes to get rid of Biddle. Ken is just bitter because for his entire tenure he has never had 2 other votes. Let's give Crooked Ken the boot and allow the Council to boot Biddle.

  6. Note to Readers-

    In response to the above reader; the Tattler has not made any endorsements in the 2011 election. We do not seek any "cover" now nor will we if we do make endorsements at a later date.

    If council member Bukowski means to have the City Attorney ballot initiative serve as a ploy to help him get re-elected then that's his calculation. Meanwhile, the City Attorney initiative is news and the Tattler will report on it.

  7. Looks like Biddle is running scared, since he and his affiliates are resorting to "shoot-the-messenger" attacks on Bukowski and Brian Donahue. Mike---isn't it about time for you to hide behind Mama Nora's skirt?
    Jus sayin'

  8. Why would giving the Emeryville voters a choice be a "manipulation?"

  9. The Council has no problem or aversion to reviewing Biddle's performance record, both he and O'Keeffe receives performance reviews, check the closed session agendas.

    I would describe incompetency as someone who calls another person or situation incompetent without knowing or accessing all the facts; but I guess that is what politics is all about.

  10. A pro-forma annual review done with a wink and a nod - we've all been through those "we would never hurt your feelings" type of annual reviews - is hardly the sort of review I am talking about.