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DENISE EATON- MAY, ESQ.DEM LEGAL AND CONSULTING SERVICESLAW OFFICES OF DENISE EATON MAY15250 Hesperian Blvd. , Suite 200San Leandro , CA 94578demlaw(mpacbell.net

Phone: 510-888-1345 Fax: 510-315-3015

November 3 2010

An Marie Gallant, Interim City ManagerCity of Alameda2263 Santa Clara AveAlameda, California 94501Re: Fire Chief, David Kapler

Dear Ms. Gallant;As you are aware, this office has been retained by Mr. Kapler to represent himconcerning his employment with the City of Alameda. We believe that the allegations againstChief Kapler have been blown out of proportion and are a result of a misunderstandingconcerning the scope ofthe agreement between Chief Kapler and prior City Manager DebraKurita 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 nodetails regarding when, where , how and which personal vehicle. As a result, we believe thetentative compromise reached in this matter is an amicable resolution as a means of avoiding therisk and expense of litigation.It is important to note that should the agreement not be approved, Mr. Kapler intends tochallenge the termination of his employment on the grounds that he has not engaged in anymisconduct and that his conduct throughout his tenn as Fire Chief has been consistent with thetelllS of his employment agreement. The City has violated his rights under the Firefighters Billof Rights and breached the employment agreement in several respects. The recent confusionaround Chief Kapler s use ofthe City gas essentially stems from past City officials being remiss

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in their duties in properly memorializing all of the tenns and conditions of employment in theirnegotiations with Chief Kapler. Several key provisions of the employment agreement are notincluded in the offer letter of August 17 2007. The offer letter does not include any details aboutthe equipping of his private vehicle at City expense, nor the use of city gas. In ternlS of breach ofcontract, the offer letter clearly authorizes retiree health benefits as part of the agreement withChief Kapler. However, City of Alameda HR Director Ms. Willis recently notified Mr. Kaplerthat said benetits were never approved by the City Council. To the extent that the City seeks todeny Mr. Kapler the contractually negotiated retiree health benefits , such action wil be deemed amaterial breach ofthe employment agreement for which we will seek immediate redress. ChiefKapler was recmited by the City, and was made several promises for which he justifiably reliedin making his decision to move across country to take the job. Should litigation ensue , damagesin the form ofloss wages and retirement for the premature shortening of Chief Kapler s careeremotional distress and attorney s fees will be pursued.It is clear that the allegations of using city gas without authorization will seriouslydamage his standing in the community, impact his reputation and impair his opportunity to earn aliving in the future. A recent internet check has reveal the story concerning this matter hasreceived over 900 000 hits. With the widespread news coverage fueled by inaccurate andinappropriate comments by City offcials , indeed, his standing has been damaged throughout theBay Area and across state boundaries. In addition , the investigation report you have relied uponfor reaching your decision has a number of omissions concerning the facts of this matter. Forexample, Mr. Kapler did not purchase the Honda Ridgeline until after the agreement was enteredand shortly before he anived in Alameda in reliance on the discussions with Ms. Kurita. Thereason he chose to take the car allowance and not a take home vehicle was so he would have theflexibility to use his private vehicle for both business and personal use. It appears from thc rcportthat Ms Kurita may have had certain conditions in her mind but these were never communicatedto Chief Kapler either verbally or in writing. To the contrary, Chief Kapler asked the onlyclarifying question as to how he should secure and pay for the gas to which Ms Kurita respondedby giving Chief Kapler authorization to procure City gas at any City fire station. Furtheillorethere is no dispute that he used both of his personal and private vehicles for business purposesand therefore the use of City gas for either vehicle would be proper under the tenns of theagreement.

Also , the alleged misconduct has been focused on the car that the gas was placed and noton the fact that the details regarding Chief Kapler s use of the City gas are missing. Should adecision be entertained to continue with termination ofMr. Kapler, we believe the lack of writtendocumentation by the City regarding the use of the city gas in Mr. Kapler s private vehicle andthe paricular private vehicle that was able to be used for City business or for retrieving gas willbe a problem for the City. In addition, the fact that Chief Kapler openly tracked and logged allgas usage for three years so that there was full disclosure and accountability to the City showingthat 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 gasplaced in his private vehicle when he was using his private vehicle for personal use and businessuse. It is ilogical to conclude that Chief Kapler could have been authorized to put City gas inhis personal vehicle but only to use the gas for business purposes , when the City knew thevehicle was intended to be used for both business and personal purposes.

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Based upon the above, it is clearly in the best interest of all to avoid litigation and attemptto reach an amicable resolution ofthis matter.Sincerely,

Denise Eaton May, Esq.cc: fie