A secret settlement giving former Garden Grove fire chief David Barlag a two-year employment deal in exchange for dropping any litigation against the city was made in violation of the state’s open meetings law, known as the Ralph M. Brown Act, according to open government experts.
City manager Matthew Fertal and deputy city attorney Barbara Raileneau signed the settlement agreement with Barlag agreeing to resign as fire chief in exchange for a new position as a “Public Safety Administrative Officer” for two years, on the condition that he retire at the end of 2016 and drop any right to sue the city.
Fertal and Barlag signed the agreement in mid-September. His resignation, per the agreement, became effective Sept. 30.
Yet neither the settlement of the litigation nor the signing of the agreement — authorizing a salary between $160,884 to $215,604, plus benefits — were reported out from three closed sessions in August and September when council members discussed the litigation, nor was it ever voted on by the city council.
Although city council minutes from those meetings — not yet available online — show the council announced before closed session that they would be discussing Barlag’s threat to sue, agendas for those meetings only list “anticipated litigation.”
According to Fertal, the city council directed him, but did not vote, in closed session on Sept. 23 to finalize the agreement, action that “did not require it to be reported out,” he wrote in an email.
The settlement and Barlag’s continued employment were only publicly disclosed after Voice of OC obtained the contract through a request under the California Public Records Act and reported on the deal last week.
Meanwhile, Fertal and city council members have defended the deal as the best resolution possible for a difficult situation.
“We mismanaged the fire department,” said Mayor Bruce Broadwater, saying that Barlag took the brunt of criticism for what was a collective failure.
Fertal said there was no evidence of a specific incident that would warrant the removal of the chief.
“There was however, clear evidence, based on the sentiments of the Fire Labor Group, that Chief Barlg [sic] would have a difficult challenge to retain control of the Fire Department,” Fertal wrote. “The Settlement Agreement was determined to be the most respectful way to resolve a very challenging situation. I don’t believe that the City and/or Chief Barlag should be subjected to further scrutiny for resolving a very difficult situation.”
Experts: The Council Must Disclose
Two open government experts disagreed with Fertal’s statement that the council did not need to report its action out of closed session.
Terry Francke, a consultant for Voice of OC and a statewide open government expert, said that state law requires access to information rules be interpreted broadly.
Under the Brown Act, “a collective decision” or “collective commitment or promise by a majority” of the council constitutes an action just as much as taking a formal vote, Francke said.
Francke also noted that a properly authorized closed session would require the threat of litigation be made in writing.
When asked to authenticate the litigation with a letter from Barlag’s attorney, the city returned a handwritten, undated note on lined paper from city attorney Thomas Nixon stating, “On August 5, 2014, Dave Barlag informed me that he was prepared to file a suit against the city if his employment situation was not satisfactorily resolved.”
Francke questioned the lack of details in the letter.
“If a casual note like this…is legally sufficient to warrant a closed session to consult on litigation, then any severance package…can be sought and approved with no notice to the public that it’s even on the table until and unless someone asks about it after the fact,” Francke said.
“In other words, the employee can simply bluff his way to the severance deal he wants, without having his bluff called because the council wants him gone without any public fuss, and is ready to reward him to get that result,” he continued.
Even without a legal threat, Francke said, the city should have voted in open session to approve the employment negotiations.
“If what’s happening is negotiation of a severance package, don’t pretend there’s any serious litigation threat—or if there is, spell out just what it amounts to for the enlightenment of the public,” Francke said.
“We’re discovering that this litigation threat/settlement pretext looks like a standard dodge to hide severance package approvals from the public at the time they’re agreed upon,” he added.
Cory Briggs, a San Diego-based attorney who represented a citizen group that successfully sued the city of Anaheim over a violation of the Brown Act, agreed with Francke.
As city manager, Fertal is authorized to sign contracts worth $50,000 or less without city council approval. He is also authorized to hire and fire city employees.
Briggs said that in order to authorize additional spending above that limit, Fertal needs a majority vote of the council at an open, public meeting.
“He basically is taking a new position that is not budgeted for and is agreeing to spend a quarter million dollars a year — that’s a big old no-no,” Briggs said. “At a minimum, the city manager doesn’t have the authority to sign that contract — it’s legally suspect, to put it mildly.”
Barlag Loses Support of Fire Union
Disapproval of Barlag’s management has been percolating among the fire union for nearly two years, culminating with the hiring of the mayor’s 37-year-old son Jeremy Broadwater as a firefighter in June 2013 despite a series of misdemeanor arrests and a vote by battalion chiefs not to recommend Broadwater for the job.
According to an independent report by the firm Management Partners, Jeremy’s hiring was the final straw for firefighters who felt Barlag was a weak chief who lacked a leadership presence, failed to discipline employees and acted unfairly by intervening in the hiring process.
That discontent led to a near-unanimous vote of no confidence from firefighters in June.
When firefighters asked Barlag why he hired the mayor’s son, the chief reportedly replied that “everybody has a boss,” according to the report.
By signing the agreement, Barlag agreed to drop all legal claims against the city regarding his employment and to “voluntarily and irrevocably resign from his position as Fire Chief,” effective Sept. 30.
In exchange, Barlag receives a salary ranging from $160,884 to $215,604 a year, a 5 percent training premium, pension and “all other benefits provided to Central Management employees,” excluding a vehicle allowance, according to the contract.
He also received a $3,750 reimbursement for attorney fees.
Barlag will hold that position until his voluntary retirement on December 31, 2016, according to the settlement.
“Don’t take it personal [sic] but this is my last shot to negotiate for the rest of my life. I have suffered a lot of professional and personal damage because of the situation,” Barlag wrote in a Sept. 18 email to Fertal obained by Voice of OC.
On Oct. 1, the first day of Barlag’s new job, the city posted a press release announcing his resignation with no mention of the contract.
Fertal later described Barlag’s job responsibilities as advising and reporting to the city manager “regarding a variety of public safety matters,” and as a project manager for the construction of a new Fire Department headquarters, a project he was previously involved with.
The city has yet to respond to a Public Records Act request submitted Nov. 7 for a description of job duties, salary and names of individuals who have held the position previously.
The city’s online salary schedule, last updated in July 2014, did not list the position until it was updated on Nov. 7, a day after a reporter called Fertal and submitted the records request.
Council Members: Litigation Too Costly
Still unknown is the nature of Barlag’s threat to sue the city.
Mayor Broadwater called the deal a “severance project” that would ultimately be cheaper than risking a lawsuit, saying that cities rarely win legal challenges.
“I guess we could have fired him. But do you know how much litigation costs?” Broadwater said.
Broadwater, who has consistently denied any involvement in his son’s hiring, has argued that the focus on his son is a politically motivated attack.
As the Management Partners report notes, the department has long operated with “weak fire chiefs and strong union leadership.”
The union is “angry that they don’t run the fire department,” Broadwater said.
Councilwoman Dina Nguyen said considering Barlag’s 28-year career with the city, the deal was a “semi-retirement settlement” that would allow the city to resolve its dispute with the fire union while retaining the chief’s expertise.
“I think it’s the best outcome…because it saves the integrity of the fire department and [Barlag’s] integrity,” Nguyen said. “I don’t want to give the message to other employees that they can work their way up and end up like the chief and be treated meanly…because at the end of his career he made some mistake.”
Both Nguyen and councilmember Chris Phan were unclear about what Barlag’s new duties would be.
Phan said he is concerned about whether Barlag’s duties merit his six-figure salary, but doesn’t think it’s a problem for Barlag to continue working for the city.
“The issue that we have with the chief was that he allegedly mismanaged the fire department. Now that he’s no longer in that role, I don’t see how there’s a problem that he’s still in the city for a supportive role,” Phan said.
Councilmembers did not answer questions about the nature of Barlag’s threat to sue.
Asked why the settlement was never made public, Phan said he “didn’t know.”
Councilmembers Kris Beard and Steve Jones did not return calls for comment.
Many residents, on the other hand, say the city continues to pay for a mistake — Jeremy Broadwater’s hiring — that has never been accounted for. The mayor’s son, still a firefighter, has since been transferred to a desk position.
“The whole thing is costing us taxpayers money, money, money. How the hell did we let this thing get so goddang far?” said resident Tony Flores of Barlag’s continued employment. “The five councilmembers…either they didn’t know about it and aren’t doing their jobs, or they’re complicit.”
The settlement was also news to firefighters.
“In midst of a scenario when we’re trying to get a bang for our buck, we can’t get a paramedic for [the west end of Garden Grove], because of budget issues?” said one firefighter, who wished to remain anonymous. “We don’t have a paramedic on the west end of Garden Grove…but we can pay these two buffoons.”
Contact Thy Vo at firstname.lastname@example.org.