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An employment deal for Garden Grove’s embattled former fire chief was not a misuse of public funds, according to an eight-page memo by an outside attorney hired by the city.
The former chief, David Barlag, resigned last September under pressure from rank-and-file firefighters, who protested his hiring of former Mayor Bruce Broadwater’s son Jeremy as a fireman despite a string of misdemeanor arrests and allegedly failing crucial oral exams with battalion chiefs.
Before he stepped down, Barlag cut a deal in which he agreed to drop any potential lawsuits against the city in exchange for two years of employment in a new position with executive level pay and a public safety pension.
The memo, written by Alan R. Burns, an attorney for the city of Fountain Valley, strictly examines whether the employment contract was a lawful use of public funds, and does not question the manner in which the contract was discussed or approved by city officials.
Burns was hired by Garden Grove officials in order to avoid conflicts of interest for the law firm that provides its city attorney services, which originally prepared Barlag’s contract.
The review of Barlag’s contract is part of the City Council’s ongoing attempts to recover public trust, after a heated year in which officials were dogged by allegations of nepotism and saw the departure of several top city leaders, including the six-term Mayor Broadwater and former City Manager Matthew Fertal.
Burns’ legal opinion would be the first independent analysis of Barlag’s employment deal since the contract first became known to the public through a Voice of OC article published last November.
And he probably won’t be the last person to raise the issue.
At their most recent meeting, council members agreed to cooperate with an ongoing district attorney investigation into allegations of nepotism, violations of the state open meetings law and criminal misconduct surrounding Jeremy Broadwater’s hiring and Barlag’s contract.
It’s unclear what path the District Attorney will take in its investigation.
A Gift of Public Funds?
In deciding whether Barlag’s contract is a gift of public funds, Burns considered whether the contract serves a public purpose, the validity of Barlag’s legal threat and whether the monetary benefits of his contract were reasonable.
In his report, Burns points to the city’s nepotism policy at the time of Jeremy Broadwater’s hiring, which prohibited favoritism based on family relationships, but also required that individuals not be unfairly discriminated against simply because they are related to a top city official.
Barlag believed Jeremy Broadwater was being unfairly targeted by union members and altered a hiring procedure to “cure the unfairness,” Burns wrote, causing the union to believe that he was “manipulating the process to ensure that Jeremy passed probation.”
In other words, Burns concluded that it was reasonable for Barlag to think he would lose his job for enforcing a city policy. And as Barlag hired a credible and well-known attorney, it was reasonable for the city to take his threat seriously.
As to the size of Barlag’s paycheck, Burns defers to the courts, which give cities relatively “wide…discretion in setting salaries for local employees as long as it is compensation for services to be performed.”
Because Barlag was an at-will employee, and he is performing services in exchange for a salary under his new position, Burns concludes that the deal isn’t a gift of public funds.
Still Working for the City
Although Barlag publicly resigned on Sept. 30, both he and Jeremy Broadwater continue to work for the city of Garden Grove.
Barlag’s title as “public safety administrative officer/director,” a sworn public safety position, reports directly to the city manager and comes with a $215,604 annual salary, or a $10,488 annual increase from what he earned as fire chief.
That salary boost will also hike his pension, which is calculated at 3 percent a year of his highest salary upon retirement in 2016.
Excluding the use of a car, Barlag is also entitled to all the benefits given to central management employees, such as cashing out vacation hours at any time during the year, according to his contract.
Before he resigned at the end of last year, 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 the Interim City Manager Allan Roeder, Barlag, who lives in Los Angeles County, was not reporting to City Hall when Roeder first asked to meet with him in mid-January.
Roeder has since assigned additional tasks to Barlag, including training personnel on disaster protocol, coordinating public safety needs in and around schools, overseeing efforts for a replacement fire station facility and studying countywide ambulance franchising.
As of Feb. 1, Roeder said, Barlag is reporting to City Hall for work daily.
Brown Act Issues
A number of questions remain.
Burns’ memo does not closely examine allegations of Brown Act violations, one of the concerns raised in the DA’s ongoing investigation, although he does comment broadly on how Barlag’s threat to sue was advertised in public documents.
As Voice of OC previously reported, city councilmembers discussed Barlag’s employment in closed sessions on Aug. 12, Aug. 26 and Sept. 23rd. Minutes from those meetings show potential litigation from Barlag listed on the agenda, although no decision was reported out of those closed sessions.
Fertal later wrote in an email to a reporter that he “received City Council direction on September 23rd to finalize the Agreement,” which did not require any report to the public, because no votes were taken.
Burns, meanwhile, wrote in his report that that the city’s closed session notices of anticipated litigation, which name Barlag, show “a good faith and substantial effort to comply with the Brown Act and to be transparent.”
“There was no specific intent to violate any law. To the contrary, the above shows a good faith intent to comply with the law,” Burns concluded.
Meanwhile, some open government experts have questioned both the closed session direction, and a hand-written note that city officials used to substantiate Barlag’s legal threat.
Burns’ report also does not address the creation of Barlag’s position, which did not exist prior to the signing of the agreement on Sept. 25. The City Council voted in open session to create the position, job duties, and approve the salary at a meeting more than two months later.
Council member Chris Phan was the only vote against the deal, citing a disagreement with the size of Barlag’s paycheck.
It also does not comment on whether Fertal was able to sign the contract without a vote of the City Council. The city manager is currently empowered to authorize certain contracts up to $50,000.
Contact Thy Vo at firstname.lastname@example.org or follow her on Twitter, @thyanhvo.