DA Won’t File Charges Against Garden Grove Officials in Brown Act Case

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A report released by Orange County District Attorney’s Office Wednesday concludes that Garden Grove officials violated the state’s open meetings law in 2014 when they secretly approved a more than half-million-dollar employment contract for former fire chief David Barlag, but prosecutors won’t be filing any charges in the case.

The City Council members manipulated an exception in the law, known as the Ralph M. Brown Act, in order to “go into closed session to allow the City Council to delay the public from finding out what their elected officials were doing with respect to the resignation of Barlag as Fire Chief, the creation of a highly paid new position, and the selection of Barlag to that position,” according to the report the DA’s office released Wednesday on the findings of its investigation.

Although DA investigators concluded that the city council violated the “spirit and intent” of the Brown Act, which requires government agencies to deliberate and make the majority of their decisions in public, they decided that there is “insufficient evidence” to adequately support related civil or criminal charges.

In November 2014, Voice of OC first reported that the council had secretly authorized then-City Manager Matthew Fertal to award the contract to Barlag weeks earlier. It was a chapter in a larger nepotism scandal that had engulfed Garden Grove’s city hall.

The DA’s investigation focused on just one aspect of Barlag’s contract — whether it violated open meetings law — and does not address other controversies surrounding Barlag’s departure, including allegations of favoritism and coercion when Barlag hired former Mayor Bruce Broadwater’s son Jeremy as a city firefighter in 2013.

Specifically, it focused on whether the City Council followed rules that require decisions to be made in public and with at least 72-hours notice before a subject is slated for discussion. Only a few subjects can be discussed in closed-door meetings, including employee performance, property negotiations and litigation.

Read the full OCDA Report – Allegations of Brown Act Violations

Earlier in 2014, after a vote of no confidence from the majority of city firefighters and public calls for his removal, Barlag verbally threatened to sue the city should he be fired.

In an August closed session, then city attorney Thomas Nixon and city manager Matthew Fertal briefed the city council on the threat of litigation, but did not include “a meaningful discussion about the fact that Barlag was an ‘at-will’ employee or that the City could terminate Barlag’s employment without cause,” according to the DA’s report.

The city council discussed the contract during two subsequent closed sessions, in August and September and agendized the item as a “threat of litigation,” although Barlag never made a complaint in writing and officials never explained the nature of Barlag’s litigation threat.

The contract that was ultimately approved by the City Council and signed by the city manager on Sept. 30 required Barlag to drop any litigation against the city in exchange for two years in a new city position created specifically for him, Public Safety Administrative Officer. The position included a salary bump and allowed Barlag to retire with a public safety pension. At the end of the two years, on Dec. 31, 2016, Barlag is required to retire.

Barlag’s new position and salary were never properly created or disclosed until they were voted on at an open meeting in Nov. 24 — nearly two months after the contract was originally signed on Sept. 30 — “the first public act by the City Council regarding the secret creation of a new position that paid over a quarter million dollars annually in public money,” according to the DA report.

Moreover, it’s unclear how much Barlag was intended to work in his new position. Before he resigned, Fertal tasked Barlag with two projects, implementing the relocation of the Fire Department headquarters and a planned replacement of a radio communications system.

According to a conversation covertly taped by the DA, Barlag stated that he and Fertal had an understanding that “Barlag would not be required to report to the City for work.”

Later, Interim City Manager Allen Roeder confirmed that Barlag had not been reporting to or working at city hall, and assigned Barlag additional duties.

Legal Arguments

According to the DA report, although the city kept Barlag’s deal secret until it was forced to disclose the contract under a state Public Records Act request, council members can’t be charged under the Brown Act because they ultimately voted to approve Barlag’s new position and salary in open session.

In order to file criminal charges, prosecutors would need to prove that city officials knowing deprived the public of information. The report pointed to two issues that the city could use to defend themselves against such charges.

First, it cited a rule that only requires cities to discuss personnel issues in open session if the affected employees request it. Second, regarding whether the decision to allow Fertal to approve Barlag’s contract should have been disclosed, the report notes that the law only requires a public report if the actions taken by the city council in closed session immediately affect the employee.

Because the action taken by council members — authorizing the city manager to offer Barlag the new job — wouldn’t go into effect the day of the closed session, and still required Barlag to accept and sign the agreement, the city could make an argument that they were not required to report out of the session, the report states.

“Consequently, because the courts have been inclined to show a deference to a City Council handling employment matters in closed session, the conclusion that the Garden Grove City Council’s action was primarily an employment decision, and only tangentially related to a pending litigation, and the OCDA would likely come up short of being able to prove a violation of the Brown Act beyond a reasonable doubt,” the report reads.

In the history of the Brown Act only one district attorney has been known to pursue prosecution of a Brown Act violation, and that trial ended in a hung jury.

Bur Terry Francke, general counsel for CalAware and an open-records consultant for Voice of OC, said the DA could have pursued a third legal option that can be “particularly useful in response to more slippery Brown Act violators.”

The DA could have demanded, through essentially a court-approved cease and desist order, that the City Council formally and publicly commit not to repeat the practices that violated the Brown Act.

If the council failed to make that public promise within 30 days, the DA could sue to force that commitment. If the City Council does make that formal commitment, any future violations of the Brown Act would not only open them up to criminal and civil lawsuits, but they could be held in contempt of court for violating their original promise to the public, Francke said.

“That means that the District Attorney had about half a year” to pursue a cease and desist order, but did not, Francke said.

Mayor Bao Nguyen, who pushed his fellow council members to call on the DA to investigate, and unsuccessfully lobbied for the city to look for a new law firm, said the report is troubling.

“The city had every reason to fire him…I could be wrong, but it seems to me that the council either purposefully acted to waste millions of taxpayer dollars, or it received bad advice from its attorney,” Nguyen said.

Councilman Kris Beard said he appreciated the DA’s thorough investigation, but described it as much ado about nothing.

“They spent significant public funds and hundreds of hours reviewing documents and interviewing individuals over a year’s period and basically concluded they were unable to validate any criminal or civil violations,” Beard wrote in an email to a reporter.

Broadwater declined to comment. Fertal, Barlag and council members Steve Jones, Chris Phan and Phat Bui did not immediately return requests for comment. The DA’s office also did not return calls for comment.

Nguyen said the DA report will be up for discussion at the next city council meeting.

Contact Thy Vo at tvo@voiceofoc.org or follow her on Twitter @thyanhvo.

  • Jacki Livingston

    I have a question for the DA, and I dare him to answer it. What does it actually take for you to file charges about anything? Do you only prosecute men who shoot a bunch of people in front of dozens of witnesses, or do you actually try to administer something that vaguely resembles justice? I gave your investigators boxes of documents, and when they kept saying they needed more, I delivered more. I even sent paperwork last week showing complaints filed against some of the parties with the state! What does a citizen have to do to get you to get off your duff and actually DO YOUR FREAKING JOB? I really want an answer, and I dare you to actually have the guts to answer me. Because, after six years of dealing with you yahoos, I am at a loss to figure out what, precisely, you people are paid to do, because it sure isn’t prosecuting crime or protecting the public.

  • Philmore

    Perhaps the “crack” team at the DA’s office didn’t want to pursue any case they DON’T have jail snitch “evidence” on ? Who knows ? The snitches evidently come up dry on any cop shootings in Anacrime.

  • Tony Flores

    Thank you for caring enough to comment as well as for those words of encouragement “Junk Dismal”, it means so much coming from a person who is obviously too frightened
    to use his or her real name. No matter, our current mayor seems to be just like the old mayor with less experience while the OC DA appears to continue to turn a blind eye to elected and/or appointed officials who seem to abuse their power(s). Here’s a recent complaint/allegation (the Voice of OC has this info too) that the OC DA failed to take any action on. Happy reading to you “Junk Dismal”.

    10/31/2015

    Ebrahim Baytieh
    Assistant District Attorney
    Supervisor – Special Prosecutions Unit

    RE: GG Mayor’s alleged recent GG Hyatt Hotel/union organization interaction(s) of 9/30/2015

    Mr. Baytieh,

    It has come to the attention of the People of Garden Grove that Mayor Bao Nguyen may have allegedly violated sections of the California Penal Code, Government Code and the Garden Grove Municipal Code while simultaneously acting as the Mayor of Garden Grove and as a union organizer. (Attachment 1, Page 3, paragraphs 5, 7, 8 & 9, and Page 6, paragraphs 4 & 5)

    On 9/30/2015 while apparently conducting both city and union business at the Hyatt Regency in Garden Grove and while in a meeting with the management of the Hyatt and union delegates, Nguyen allegedly passed a city document/record that appears to have been altered and/or forged with an alleged counterfeited signature of the former city manager. (Attachment 2)

    Please note that as of 8/03/2015, Mr. Scott Stiles officially began his position as the City Manager of Garden Grove (Attachment 3) and that Mr. Allen Roeder was no longer the “Interim City Manager”, therefore, Mr. Roeder no longer had any authority as such on 9/30/2015.

    The People of Garden Grove call your attention to the City Council Agenda of 7/28/15, item 18a and the City Council Agenda of 8/11/2015, item 7a as well as the minutes of these meetings. Please note that nowhere in these public agendas or minutes will one find a record, memo, document or resolution that was reviewed, discussed and/or passed by the city council wherein the words “Hyatt Regency Orange County supports this Resolution” are on or part of the properly noticed and authorized public record. (Attachments 4, 5, 6 & 7)

    After reviewing the above information it appears that at least one of three scenarios may or could have taken place involving an alleged altered, forged and/or ounterfeited public document. 1) It is possible that Mr. Roeder gave Nguyen permission to use a copy or likeness of his signature on an allegedly altered and/or forged public document. 2) It is possible that both Nguyen and Roeder allegedly conspired to pass an altered public document/record with full knowledge when neither one had or possessed the authority to do so. Or 3) Nguyen allegedly acted on his own when he allegedly passed an altered, forged and/or counterfeited public document/record/paper on to the management of the Hyatt while simultaneously acting as the Mayor of Garden Grove and as a union organizer.

    Taking the above information, police report, documents and attachments into consideration, the People of Garden Grove allege that Nguyen appears to be in violation of Penal Codes 470(a), 470(b), 470(c), 470(d), 471, 475(a), Government Codes 6200 and 6203(a), Garden Grove Municipal Codes 2.02.020, 2.02.040, 2.02.050, 2.02.060 A & B and 2.02.060 D2. (Attachments 8, 9 & 10)

    The People of Garden Grove have been told that the City Attorney for Garden Grove has already reviewed this matter and he has determined that further action is not required. Based on the above information, police report, documents, attachments, Penal Codes, Government Codes and Garden Grove Municipal Codes, we respectfully disagree.

    We at this time ask that your office refer this matter to the Grand Jury for further review or that your office initiate an investigation for potential prosecution or that you please refer this matter on to the State Attorney General’s office for review, investigation and/or potential prosecution.

    Respectfully submitted,

    Tony Flores
    WGG, CA 92845

    • Junk Dismal

      You’re just repeating yourself. Like when we were at Tuesday night’s meeting. You know… with your rude outburst.

      We’ve seen your “complaints” over and over again. Here, elsewhere the web and the FOIA requests through the city.

      Keep using your employers email when contacting the city!

      Good on ya, sir…

  • Tony Flores

    My fellow citizens, below is the original complaint/allegations filed with the OC DA’s office in early December of 2014 and the Voice of OC has all of the attachments mentioned herein. Maybe our only victory is in the people being and staying aware of the action(s) that our governing officials are taking, be it in a public meeting or in a closed meeting. Good luck to all of you & good luck to all of us. (Thank you Thy Vo for your reporting)

    12/07/2014

    To: Whatever Law Enforcement Agency or Agencies this may concern

    RE: Allegations of Criminal Activity involving the Garden Grove City Council, The Garden Grove City Manager and the former Fire Chief of the Garden Grove Fire Department

    Gentleperson(s):

    Please find the attached information and document(s) that contains what we citizens believe are the violations of various municipal, penal and government codes as allegedly committed by our current city council, city manager & the former GGFD Fire Chief. The following allegations were raised at the Garden Grove City Council Meeting on 11/25/2014, as they stand to date regarding the above captioned matter. This appears to be an orchestrated conspiracy of an abuse of power, a misuse of public monies and a violation of the public trust, as a direct and/or indirect result attributed to the hiring of the mayor’s son.

    1. The mayor and city manager coerced/extorted/bribed the former GGFD fire chief into processing and hiring the mayor’s son. It is our understanding that the mayor and our city manager allegedly interviewed Dave Barlag and another candidate for the position of Fire Chief. It is also our understanding that the mayor and the city manager allegedly told both candidates that the mayor’s son would go through the hiring process and even if he failed one, some or all of the tests, the mayor’s son would be hired, period. It has also been alleged that one of the candidates said absolutely not and when Mr. Barlag agreed to go along with the mayor and the city manager’s scheme, our fire department had a new chief in Mr. Barlag. (Attachment 1 and Attachment 2, page 5) Cal. Civil Code 52.1, PC 67, PC 67.5, PC 68, PC 518 and PC 182.

    2. The mayor’s son received special advantages beyond that which are/were available to any other citizen and the entire city council remained silent and took no action against it. (Attachment 2, pages 2 & 3, Attachment 3) GGMC 2.02.040, 2.02.110 and PC 182.

    3. An obvious conflict of interest developed wherein the mayor continued to participate, make decisions, insert opinions, give direction(s) and vote on issues that directly and/or indirectly involved his son while the entire city council remained silent and took no action against it. (Attachment(s) 3, 4, 5 & 6) GGMC 2.02.020, 2.02.040, 2.02.060.A, D.2, 3 & 4, 2.02.070.A, 2.02.080, 2.02.110 and PC 182.

    4. The city council, city manager and the former GGFD fire chief knew or should have known that it was and remains negligent in the hiring and retention of the mayor’s son. (Attachment(s) 3, 7 & 14) GGMC 2.02.020, 2.02.040, 2.02.060.A.D.3, 2.02.070.A, 2.02.080, 2.02.090.C, 2.02.110, Gov. Code 835(a) and PC 182.

    5. The entire city council and city manager intentionally violated the Brown Act when they failed to report to the public their closed session activities/actions on 8/12/14, 9/23/14 and 10/14/14. (Attachment(s) 4, 5, 8 and 9) GGMC 2.02.020, 2.02.060.A.D.3, 2.02.080, 2.02.090.C, 2.02.110, Gov. Codes 54950, 54950.5, 54952.6, 54956.9, 54957.1, 54959 and PC 182.

    6. The entire city council and city manager conspired to violate the Brown Act, commit fraud, embezzlement and theft when authorizing and entering into the agreement with the former GGFD fire chief under the guise of a pending lawsuit. (Attachment(s) 8, 10, 11, 12 and 13) GGMC 2.02.020, 2.02.060.A.D.3, 2.02.080, 2.02.090.C, 2.02.110, Gov. Codes 54950, 54950.5, 54952.6, 54956.9, 54957.1, 54959, PC 424, PC 425, PC 426, PC 484, PC 503, PC 504 and PC 182. Mr. Barlag may have also committed extortion by taking advantage of his position with the mayor and city manager when negotiating his agreement with the city under the guise of a pending lawsuit. (Attachment 10) PC 484 and PC 518.

    7. The current city council, city manager and former GGFD fire chief appear to be in violation of the Federal and State RICO statutes in that the above allegations seem to be an ongoing, willful and continuing pattern. PC 186, Title 18 U.S.C. § 1961 and PC 182.

    There may be other municipal codes, penal codes, government codes, state and/or federal laws that have been violated or may be more on point reference the above allegations. Additional evidence may have to be collected but I believe that we have enough to submit to the appropriate State or Federal law enforcement agency or agencies to initiate an investigation.

    Respectfully submitted,

    Tony Flores
    WGG, CA 92845

    • LFOldTimer

      Good Christ!

    • Junk Dismal

      Yes, Tony, we already knew you were the “other” complainant as listed in the DA’s report.

      Freedom of speech is a wonderful thing. Too bad you abuse it at most oral comm’s at council like a severe gadfly. Firing off false accusations and saying some really insensitive things— and you know what we’re talking about, too.

      It’s easy to be antagonistic and point fingers of the seated five from the podium, but it wasn’t that long ago in our memories of a certain “cop” who was no longer at Station 32.

      Easy to point out dirty front yards when some certain backyards of others aren’t clean… and haven’t been for years.

      • BeeBee.BeeLeaves

        Wow. Personal.

        Well at least Station 19 did prosecute when Georgie porgie pudding and more pie went from Station 32 to Station 18.

      • Jacki Livingston

        Wow…lover’s spat, boys? I am actually impressed that he gets to say anything the the Thugs of Five at their coven-slash-cabal meetings. Lord knows that people trying to report crime or corruption in the county don’t get that far. Well done, Tony. And, uh, just to be fair, at least he is using his real name here, not hiding behind a false one just to play “nanny-nanny-boo-boo” in a public forum.

        Just sayin’…

        • Junk Dismal

          Robert Holland.

          • Robert Holland

            Should now appear with my name. Satisfied?

  • Junk Dismal

    Somewhere in West Grove, resident Tony Flores is calling this a victory… despite no charges filed. We’ll see the gloating and nervous pontificating at next council meeting…

  • Paul Lucas

    Somewhere out there Webster Guillroy is mumbling WTF To himself.

    • LFOldTimer

      Webster was a long-time government employee. He must have known how the game was played. Webster took a big risk by choosing not to join the GOP and attend the local Republican Central Committee meetings and Lincoln Club functions and not do as the Party masters said. Consequently, he swam outside the skool (sic) and got caught in the net. If you happen to be an insider with the right connections and affiliations you’re good as gold. The examples are numerous. If you’re a good ‘ol boy (or girl) you could actually handcuff a man in a public place, deny him freedom of movement even though he did nothing illegal that resulted in an arrest, and go unpunished for it. We’ve jumped the shark. There’s not much you can do about it. But being aware is the first step to enlightenment.