DENISE EATON- MAY , ESQ.

DEM LEGAL AND CONSULTING SERVICES

LAW OFFICES OF DENISE EATON MAY
15250 Hesperian Blvd. , Suite 200
San Leandro , CA 94578
demlaw(mpacbell. net
Phone: 510- 888- 1345 Fax: 510- 315-3015

November 3 2010

An Marie Gallant , Interim City Manager

City of Alameda
2263 Santa Clara Ave
Alameda , California 94501

Re: Fire Chief, David Kapler

Dear Ms. Gallant;

As you are aware, this office has been retained by Mr. Kapler to represent him
concerning his employment with the City of Alameda. We believe that the allegations against
Chief Kapler have been blown out of proportion and are a result of a misunderstanding
concerning the scope ofthe agreement between Chief Kapler and prior City Manager Debra
Kurita regarding the use of City gas for his personal vehicle. The evidence reveals that Ms.
Kurita did agree to allow Chief Kapler to use city gas for his personal vehicle , but there are no
details regarding when , where , how and which personal vehicle. As a result , we believe the
tentative compromise reached in this matter is an amicable resolution as a means of avoiding the
risk and expense of litigation.

It is important to note that should the agreement not be approved, Mr. Kapler intends to
challenge the termination of his employment on the grounds that he has not engaged in any
misconduct and that his conduct throughout his tenn as Fire Chief has been consistent with the
telllS of his employment agreement. The City has violated his rights under the Firefighters Bill
of Rights and breached the employment agreement in several respects. The recent confusion
around Chief Kapler s use ofthe City gas essentially stems from past City officials being remiss
in their duties in properly memorializing all of the tenns and conditions of employment in their
negotiations with Chief Kapler. Several key provisions of the employment agreement are not
included in the offer letter of August 17 2007. The offer letter does not include any details about
the equipping of his private vehicle at City expense , nor the use of city gas. In ternlS of breach of
contract , the offer letter clearly authorizes retiree health benefits as part of the agreement with
Chief Kapler. However , City of Alameda HR Director Ms. Willis recently notified Mr. Kapler
that said benetits were never approved by the City Council. To the extent that the City seeks to
deny Mr. Kapler the contractually negotiated retiree health benefits , such action wil be deemed a
material breach ofthe employment agreement for which we will seek immediate redress. Chief
Kapler was recmited by the City, and was made several promises for which he justifiably relied
in making his decision to move across country to take the job. Should litigation ensue , damages
in the form ofloss wages and retirement for the premature shortening of Chief Kapler s career
emotional distress and attorney s fees will be pursued.
It is clear that the allegations of using city gas without authorization will seriously
damage his standing in the community, impact his reputation and impair his opportunity to earn a
living in the future. A recent internet check has reveal the story concerning this matter has
received over 900 000 hits. With the widespread news coverage fueled by inaccurate and
inappropriate comments by City offcials , indeed , his standing has been damaged throughout the
Bay Area and across state boundaries. In addition , the investigation report you have relied upon
for reaching your decision has a number of omissions concerning the facts of this matter. For
example , Mr. Kapler did not purchase the Honda Ridgeline until after the agreement was entered
and shortly before he anived in Alameda in reliance on the discussions with Ms. Kurita. The
reason he chose to take the car allowance and not a take home vehicle was so he would have the
flexibility to use his private vehicle for both business and personal use. It appears from thc rcport
that Ms Kurita may have had certain conditions in her mind but these were never communicated
to Chief Kapler either verbally or in writing. To the contrary, Chief Kapler asked the only
clarifying question as to how he should secure and pay for the gas to which Ms Kurita responded
by giving Chief Kapler authorization to procure City gas at any City fire station. Furtheillore
there is no dispute that he used both of his personal and private vehicles for business purposes
and therefore the use of City gas for either vehicle would be proper under the tenns of the
agreement.

Also , the alleged misconduct has been focused on the car that the gas was placed and not
on the fact that the details regarding Chief Kapler s use of the City gas are missing. Should a
decision be entertained to continue with termination ofMr. Kapler, we believe the lack of written
documentation by the City regarding the use of the city gas in Mr. Kapler s private vehicle and
the paricular private vehicle that was able to be used for City business or for retrieving gas will
be a problem for the City. In addition , the fact that Chief Kapler openly tracked and logged all
gas usage for three years so that there was full disclosure and accountability to the City showing
that this was not a secret will also inure to Kapler s benefit.

Furtheillore , it is unclear how Chief Kapler could be expected to separate the City gas
placed in his private vehicle when he was using his private vehicle for personal use and business
use. It is ilogical to conclude that Chief Kapler could have been authorized to put City gas in
his personal vehicle but only to use the gas for business purposes , when the City knew the
vehicle was intended to be used for both business and personal purposes.
 Based upon the above , it is clearly in the best interest of all to avoid litigation and attempt
to reach an amicable resolution ofthis matter.

Sincerely,

Denise Eaton May, Esq.

cc: fie