A split Garden Grove City Council Tuesday night failed to take action on a proposal to reform how they conduct closed-door meetings and launch an audit of the controversial employment contract the city gave to former Fire Chief David Barlag.
The City Council vote follows a report released late last month by the Orange County District Attorney's office that found Garden Grove officials manipulated a exception in state law, known as the Ralph M. Brown Act, in 2014 when they secretly approved a more than half-million-dollar employment contract Barlag in a closed-session meeting.
Although the DA concluded there was not enough evidence to file criminal charges against city officials, the report stated the council used the closed session "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."
The report outlined four recommended actions, and city staff advised council members to approve three of them.
First the City Council would designate City Clerk Kathy Bailor to create audio recordings of all closed session meetings for a period of two years, recordings that would not be available to the public unless released by a vote of the council or through a court order.
They would also publicly promise that any new city positions be created in open session, and to avoid relying on a "pending litigation" exception to create new positions in closed session without reporting the action-- essentially, promising to follow the law as it is already written.
Councilmembers, however, disagreed on whether to include the DA's fourth recommendation, to "audit the work and performance of the Public Safety Administrative Officer to ensure the public that the position is not a "no show" position."
"The reality is...that position that was created could have been filled by a civilian, for much less money," said Mayor Bao Nguyen. "Why specifically Mr. Dave Barlag?"
According to City Manager Scott Stiles, staff didn't include the audit in their recommendation because it would likely require the added cost of a contract with an external auditor.
Ultimately, the vote was 2-2 on the package of proposals, with Nguyen and Councilman Phat Bui in favor; and Councilmen Steve Jones and Kris Beard (who were both a part of the closed-door vote) opposed. Councilman Chris Phan recused himself from the discussion and vote because he is a deputy district attorney and "good friends" with the author of the report.
There are outstanding questions about whether Barlag was doing any work at all between the contract's signing in Sept. 2014 and January 2015, when interim city manager Allen Roeder began requiring that Barlag report to City Hall.
According to a conversation covertly taped by the DA, Barlag stated he and former City manager Matthew Fertal, who signed the contract, had an understanding that "Barlag would not be required to report to the city for work."
Stiles said Barlag has since been assigned a number of projects, including: the implementation of a new radio system; planning for a new fire station; training for public safety personnel; assisting the Police Department Dispatch in relocating its IT equipment; and assisting the HR department.
Bui recalled that at the time he had defended the city's action based on the insistence from officials that Barlag was a contract employee who had a meaningful litigation threat against the city. The conflicting picture presented by the DA's report -- that Barlag was an at-will employee who could be fired at any time - was troubling, Bui said.
"It's disturbing to me that our city did not give a correct explanation to the public when we inquired about it," Bui said.
Beard said that while he appreciates the DA's thorough investigation, the results were inconclusive and no charges could be brought. He also said that while he thought the city acted in good faith, the council should learn from the issue and move on.
"It's time for closure from this situation. Anything beyond this point falls into the realm of political grandstanding," Beard said. "What was never seen or heard from this DA report was the backdrop of 2014 and all the politics that were going on...it really in my view brought out the worst in people."
Nguyen fired back, saying: "I would not say that when the public is holding its government accountable, that that's bringing out the worst in people - I think that's bringing out the best in people."
Bui chimed in, saying: "there's no politics here" and that the public trust is important to the council. "We're trying to find out why the public got the wrong information when it was so easy to answer that question years ago," he said.
Beard said Nguyen's and Bui's comments amounted to political grandstanding. Both councilmen are running for higher offices in November -- Nguyen for the U.S. House of Representatives and Bui for the county's First District supervisorial seat.
"There was no indictment, no court cases, no convictions of any sort. We’re reading more than there is," Beard said.
Jones, who was silent for the duration of the discussion, declined to comment on the issue and said, "I think we beat it to death."
He made a motion to pass the resolution as-is -- without the audit -- which failed 2-2, with Nguyen and Bui voting no.
Nguyen's motion to pass the resolution with the audit attached also failed with a 2-2 vote.
Nguyen also tried, unsuccessfully, to resurrect a proposal to seek bids for a new legal services firm, arguing that the city's current contract attorney firm, Woodruff Spradlin and Smart, gave the city bad advice by allowing Barlag's contract to move forward.
The resolution to record closed session meetings will be tabled until the next City Council meeting on March 22.
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