Garden Grove Mayor Bao Nguyen is calling on Orange County District Attorney Tony Rackauckas and state Attorney General Kamala Harris to look into whether it was legal for the city to offer former Fire Chief David Barlag a two year contract at full salary in exchange for him dropping undisclosed legal threats against the city.
Today, nobody at city hall can really say what Barlag exactly does day-to-day for his six-figure paycheck, with Interim City Manager Allan Roeder recently noting Barlag doesn’t report to city hall.
Barlag didn’t return a call seeking comment.
Former City Manager Matthew Fertal, who structured the deal with Barlag, abruptly retired after last November’s election, which saw Nguyen beat longtime incumbent Mayor Bruce Broadwater.
Nguyen is now hoping the entire city council — including three members who previously voted to approve the secret deal with Barlag — on Tuesday night will sign onto a letter he is sending to the agencies seeking investigation.
The mayor, who has held office for less than two months, expressed concerns over the legality of the contract and actions of city officials who negotiated the deal.
“Our responsibility is to provide oversight in the interest of the people in Garden Grove — they haven’t had a sense of closure on this issue,” Nguyen said Monday. “My thinking is that if [the request] passes with council approval, it will carry more weight and demonstrate the full council’s commitment to acting in the interest of the public.”
The Settlement Deal
Barlag was appointed Fire Chief in 2012 but almost immediately came under scrutiny from the firefighters’ union, which protested the hiring of former mayor Bruce Broadwater’s 37-year-old son Jeremy as a firefighter in 2013.
Broadwater was one of 10 firefighters hired out of 500 total applicants, despite a string of misdemeanor arrests and allegedly failing a crucial battalion chiefs’ exam. Once hired, Broadwater received poor performance reviews by his superiors, according to the Orange County Register.
Under pressure from the fire union, Barlag resigned in September, although it later emerged through reporting by Voice of OC that his resignation was the condition of a secret deal approved by city council members in closed session and signed by City Manager Fertal.
Neither the settlement of the litigation nor the signing of the agreement — authorizing a $215,604 annual salary — were reported out from three closed sessions in August and September when council members discussed the litigation.
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.
The city council later revisited the contract at an open meeting, voting 4-1 to approve resolutions to officially create Barlag’s position, add it to a list of central management roles, and approve the “previously authorized settlement agreement.”
According to the terms of the deal, Barlag would resign as fire chief in exchange for two-years of additional employment in a new position, classified as a public safety position and directly supervised by the city manager.
City officials have justified the deal as a settlement to a legal dispute, describing it as the best resolution to a difficult situation. Yet Barlag never filed as much as a claim against the city, much less a lawsuit, and city officials have never disclosed the nature of his threats against the city.
Nguyen said he is concerned about both the closed-door process by which the deal was approved, and the terms of the agreement itself.
He said Barlag’s new salary, which is $10,488 more than what he earned as fire chief, raises questions about whether the position was created to boost his pension.
Nguyen also questioned whether Barlag’s salary is justifiable under his new role, calling it a potential “gift of public funds.”
According to a city press release, Barlag is responsible for overseeing the construction of a new Fire Department headquarters and two new fire stations, as well as advising the city manager on “various public safety issues.”
Roeder said he still needs to examine Barlag’s role, but “has different thoughts” about what he should be doing, based on the current needs of the city.
“He is not reporting [to City Hall] at this time. I ‘m still reassessing the arrangement between him and Mr. Fertal,” Roeder said, declining to say more given that he has yet to discuss any changes with Barlag.
Attorney Gets Performance Review
Nguyen has also requested a performance review of city attorney Thomas Nixon, citing concerns over his legal advice to the previous city council.
Nixon, a contract city attorney from the firm Woodruff, Spradlin and Smart, has not had a performance review since becoming city attorney in 2006.
At a Jan. 13 city council meeting, Nguyen sought to remove two sections of the city’s municipal code that require a performance review and 120-day cooling off period after a new council takes office before they can consider terminating the city attorney.
Nguyen said he’s not on a “witch hunt,” but wants more flexibility for the council, and the ability to seek additional legal counsel to advise the council on its hiring practices, strengthening whistleblower protections and Barlag’s continued employment.
Nguyen said the current municipal code section limits council discretion, and thus the accountability of the city.
“It still requires a majority vote of the council…it’s not, you know, something that one person can do,” Nguyen said. “If the majority of council feels they would like to seek representation from elsewhere. They’re [elected and] accountable to the public.”
Other council members, however, were skeptical of Nguyen’s proposal.
Councilman Phat Bui, who was not on the city council when Barlag’s deal was approved, felt the existing code was a necessary safeguard against an overzealous or politically motivated city council.
“If we’re coming in and do not understand the operation of the city…not just a particular person…and we make changes at a higher level, we may in fact create more harm than good,” said Bui. “I understand the intent of this provision is to avoid a situation where a new council comes in and rushes through a decision to change top management in the city. It would give the city council too much power.”
Councilman Steve Jones noted that while the municipal code provides protection for the office of the city attorney, Nixon works for a contracted law firm, not the city itself.
In addition to advising the city council, the firm provides a variety of day-to-day legal services to the city as well.
Jones has yet to comment on Barlag’s settlement deal and did not return call for comment Monday evening.
Councilman Chris Phan, who voted against Barlag’s deal in the open session after the settlement was signed, said he voted against the deal because of objections to Barlag’s salary. He did not question the settlement’s legality otherwise.
“Tom provides us legal advice – the lanes of what we should do and not do. I’ve always found Tom’s advice to be sound…but how we take that advice and what we do with it thereafter is on our shoulders,” Phan said.
Councilman Kris Beard has also defended the deal with Barlag, calling it the “best business decision for the city” in terms of avoiding a potential lawsuit.
Asked whether criticism of the settlement’s legality hold any weight, Beard deferred to the city attorney.
“I had to rely on the legal counsel — it was under the direction of the city attorney and city manager that it was a valid legal decision,” Beard said.
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