Ex-City Attorney to Sue Milpitas for ‘Retaliatory’ Firing

December 9, 2015
San Jose Inside

Milpitas’ former city attorney, whose entire office was outsourced to a private law firm this past summer, plans to sue the city for retaliation.

Michael Ogaz claims the city broke the law by firing him for investigating a personnel complaint. Milpitas City Manager Tom Williams violated his free speech rights and ousted him for essentially doing his job, according to a pre-lawsuit charge filed with the state Department of Fair Employment and Housing (DFEH) and a separate government tort claim.

The DFEH reviewed those allegations and gave Ogaz the go-ahead to bring a multi-million dollar lawsuit against the city, which already faces a slew of litigation for age discrimination and other workplace issues.

“We think the evidence is very compelling,” his attorney, Adam Zapala, told San Jose Inside. “I’ve rarely started out an employment case where we have as much evidence as we have now.”

Williams dismissed the charges as without merit. The city eliminated two internal attorney positions after conducting a cost-benefit analysis during the usual budget seasons.

"There were no retaliatory actions by the city and the decision was based solely on cost," he said in a statement.

The impending legal case stems from an internal complaint filed in April by the city’s former planning director, Steve McHarris, and former personnel chief, Carmen Valdez, which accused Williams of racial harassment, age discrimination, defamation and unethical conduct with developers. Because of the seriousness of the allegations, Ogaz launched a probe and alerted the City Council.

“Almost immediately,” according to the tort claim, Ogaz and McHarris “experienced both the threat of and actual retribution.”

Days after Ogaz notified city officials of his investigation, Williams allegedly filled out a form purporting to fire McHarris, who already had put in notice to take a new job with the city of San Jose. The city manager also allegedly threatened to file a harassment claim against Ogaz for initiating the investigation.

In what the tort claim calls “an extraordinary coincidence,” Councilwoman Debbie Giordano called for a performance review of Ogaz a day after he began looking into McHarris’ allegations and on the same day the council was to evaluate Williams.

“This act led to the chain of events whereby Mr. Ogaz was terminated,” the tort claim states. “The incredible temporal proximity between Mr. Ogaz’s protected activity and Williams’ and Giordano’s conduct … creates an inference of retaliation by itself.”

Giordano publicly acknowledged that she called for Ogaz’s review because of concerns “about the due process and how the dispute was being handled.”

“This is an extraordinary admission by the city and will be devastating to its defense in any future litigation,” according to the claim.

Another suspicious coincidence happened a day later, the claim adds. Williams asked for recordings of Ogaz’s performance evaluation, which, according to state law, only council members can view. That request was denied.

“Once again, in an extraordinary twist of coincidence, a request for the same tapes came from Councilwoman Giordano a short time later on the same day,” according to the tort claim.

In an open council meeting that month, Williams said he felt that Ogaz had put him “in the crosshairs” by bringing the allegations against him to his elected supervisors. Council members have the authority to hire and fire only the city manager and the city attorney.

Later, during a private meeting just outside of Williams’ office, the city manager allegedly threatened Ogaz with retaliation... (To read the entire article, please click HERE)