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.
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 firstname.lastname@example.org or follow her on Twitter @thyanhvo.