The Orange County District Attorney’s office agrees with critics of the City of Garden Grove that the former Bruce Broadwater-led City Council was slimy (my word) and violated the spirit of the state’s open meeting law when it secretly promoted a fired fire chief to a newly created, higher paying position.
But in a report released Wednesday, Assistant District Attorney Ebrahim Baytieh and Senior Assistant DA Michael Lubinski also conclude that they cannot prove beyond a reasonable doubt that Broadwater and his crew committed a crime, so the OCDA will not be filing charges.
Former Weekling Charles Lam reported a year ago on the calls for an investigation into then Fire Chief David Barlag’s October 2013 hiring of Jeremy Broadwater, the then-mayor’s son, as a firefighter.
The younger Broadwater was a city ranger with poor job performance reports, no firefighting experience, a failed final interview with battalion chiefs and 10 misdemeanor arrests between 1996 and 2000.
And yet, 11 months after Barlag was appointed fire chief, he chose Jeremy Broadwater over a field of 500 candidates for the open fireman position, leading to a vote of no confidence from the city firefighter union.
The union vote made it impossible for Barlag to lead the department and should have made him eligible for immediate firing because he was an “at-will” employee—meaning he could be removed without cause. (So long as it wasn’t due to his race, religion, sexual orientation, etc.) Since-retired City Manager Matthew Fertal was preparing to do just that, especially after receiving an independent report that showed Barlag was not exercising appropriate managerial control, lacked appropriate discipline within the department and displayed favoritism by hiring the younger Broadwater.
But a funny thing happened on the way to the employment guillotine: Barlag’s lawyers threatened to sue the city if he was removed as fire chief.
That prospect led to negotiations and a proposal: Barlag would be fired as fire chief, hired as the newly created Public Safety Administrative Officer, paid his $226,000-plus fire chief salary and an additional 5 percent as a “training premium,” and allowed to serve for two years before retiring with a pension based on the bumped-up amount. The pact also had Barlag losing his city vehicle allowance, Barlag’s attorneys having their $3,750 fees paid by the city and everyone agreeing to keep their yappers shut.
The Mayor Bruce Broadwater-led City Council held three closed door meetings in August and September 2014 that resulted in Barlag being hired to the newly created Public Safety Administrative Officer—a position the city did not even need, according to the OCDA.
Two other problems here … three actually: 1) By city code, the council only hires the city manager, who is responsible for hiring all the other city employees; B) There was no notice given to the public about the subject of the closed session meeting, as required under the state’s Ralph M. Brown Act (the open meeting law); and, Numero Tres) There was no announcement of the action the council took after emerging from closed session, as also required under the Brown Act.
Indeed, no Garden Grove resident or other member of the public (who was not in that closed meeting room ) knew a Public Safety Administrative Officer position existed or that Barlag had been hired to fill it until members of the media and a constituent filed requests under the federal Freedom of Information Act.
When the hiring became public knowledge, a request was made for a district attorney investigation into whether any crimes occurred under the Brown Act.
The results of that probe are quite damning. Consider this: In exchange for losing his vehicle allowance, Barlag would not have to report to work under the deal. (BTW, my employer can have my 2001 Mercury that’s leaking oil in exchange for paying me not to come to work.)
The OCDA strongly disagrees with then-Garden Grove City Attorney Thomas Nixon’s opinion that the council could meet secretly due to pending litigation. As the prosecutors note, there was no pending litigation, only the threat of a suit that was quickly removed once the city and Barlag entered negotiations.
Despite finding no legal grounds to bring criminal charges, the OCDA does recommend: that the city record closed sessions for two years; that the City Council announce any job openings before filling positions; that the council refrain for using “pending litigation” as a pretext to go into closed session and that it announce what happened behind closed doors; and that the city audit the work and performance of the Public Safety Administrative Officer to assure the public it is not a “no show” job.
Honestly, Weekly brass, I’ll even throw in my beach cruiser if you turn this into a no-show gig. My lawyer Saul Goodman awaits your call.