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

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.

Adam Zapala

Adam Zapala

“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.

“I’m going to get you, Mike,” Williams allegedly told him.

“Are you saying you’re going to retaliate against me?” Ogaz asked.

“Yes, you bet,” Williams allegedly responded.

About a month after, the council voted to outsource the whole city attorney’s office to a private Walnut Creek-based law firm. While Councilwoman Giordano and Mayor Jose Estevez said the move would save the city money, Ogaz disputes that reasoning.

In January, Ogaz submitted a budget for the 2015-16 fiscal year asking to expand his office by adding a deputy city attorney. Williams agreed with that request, as he had with six prior year budgets. Instead of phasing out Ogaz, who was hired in 2007, the city voted to terminate his position on July 1.

Meanwhile, Estevez and Giordano took over the investigation into McHarris' claims. In a bubbly press release in October, the council duo announced that the allegations had no merit while applauding the city manager's performance. Singer Media, the crisis management firm hired around the same time as the investigation into the city manager's behavior said the city cannot comment further on the matter because any disputes between employees are subject to confidentiality.

Tom Williams

Tom Williams

In September, however, the federal Equal Employment Opportunity Commission filed a lawsuit accusing the city of hiring a younger, less qualified secretary over several more experienced candidates. A separate lawsuit filed in Santa Clara County Superior Court raises similar allegations, claiming the city also flouted state law.

Milpitas has repeatedly come under scrutiny for its personnel problems, many of them pointing back to Williams. Over the past several years, several high-ranking city officials have retired early or left after only a few years because of what they call a toxic work environment. Additionally, at least two other former employees plan to file their own employment-related lawsuits.

While Giordano and Estevez have repeatedly come to his defense, others blame him for tarnishing the city’s reputation.

“You have lawsuits, personnel complaints, and discrimination complaints,” former Milpitas Councilman Armando Gomez told San Jose Inside. “For [Mayor] Esteves to ask the public to believe that everything is OK at City Hall and outsourcing the attorney’s office was purely for budget reasons is really just insulting.”

Zapala said people shouldn’t be afraid to speak up about unlawful workplace conduct, and they should be able to participate in personnel investigations without fear of retribution.

“We intend to vigorously litigate this case,” he said Tuesday, “to ensure that courageous public servants, like Michael Ogaz, are protected from workplace bullies.”

This story has been updated.

Jennifer Wadsworth is a staff writer for San Jose Inside and Metro Newspaper. Email tips to [email protected] or follow her on Twitter at @jennwadsworth.

7 Comments

  1. I have no doubt that every single allegation is true. It’s quite ironic, however, that Ogaz, more than anyone else, was aware of the mistreatment of employees by the one his attorney is now calling a bully. If Ogaz was truly a courageous public servant he would have stood up long ago on behalf of real public servants and what is right and just. Same could be said of Valdez, Armenderiz, and others.

    • Every allegation is definitely true. Ogaz’s attorney has a clear and simple case once a true investigation is conducted. What you see is an attempted cover up by Williams, with the aid of Esteves, Grilli, and Giordano. How much more will the residents tolerate? More wasted tax dollars. Time to move on with a new City Manager and new council members. Williams also threatens staff to keep quiet or risk being fired. Try using a lie detector test so staff can be honest without reservation. Or interview former staff. Why do new hires quit so soon after being hired? Simple solution.

  2. Maybe this should be a class action law suit, let’s include all of the other city employees that we laid off.

  3. > Maybe this should be a class action law suit, let’s include all of the other city employees that we laid off.

    Wherever did you get the idea that a permanent government job is a legal entitlement, not to mention, a group entitlement?

  4. The imbeciles on the Milpitas City Council should have heeded my advice & fired Tom Williams months ago. Now they can kiss their political careers & potentially hundreds of thousands of dollars of the taxpayers money goodbye. Here’s hoping that they’re held personally responsible for the monetary damages & court costs while the cities bonding company refuses to pick up the tab for their malfeasance in office. Wiiliams backers Esteves,Giordano & Grilli are more crooked than Calaveras Road & their duplicity in this matter is deplorable to say the least. They should be tarred & feathered & run out of town on a rail along with their political ally Tom Williams !!!

  5. Boo Hoo. Boo Hoo. So Mr. Ogaz wants to file a lawsuit. To Mr. Ogaz I have this to say. You’re a grown man. Grow a pair and thank your lucky stars you haven’t been arrested, although I’m working toward that end. You can dish it out, but you can’t take it, can you? I can make an inference to a jellyfish, a wet, slimy creature without a back bone, but I won’t.
    Do you remember that cold day at Superior Court in San Jose several years ago. You and Gloria Anaya filed an illegal lawsuit against me. You both swore to “tell the truth, nothing but the truth,,,,etc. I guess you and Anaya both had your pinkies crossed because you both lied at least 24 times. You of all people should know what a felony is. Each felony is punishable by up to 4 years in prison. You withheld a court document, Attachment CV-5012, Civil Lawsuit Notice, required by STATE LAW to be presented to the defendant. It states that if I do not file an appeal within 30 days, I could automatically lose my case. Strange that you had a copy of this form, Superior Court had a copy of this form, Everyone had a copy but me. What better way to win a case than if the defendant doesn’t know his rights, that he can appeal. That’s a FELONY, Mr. Ogaz. YOU COMMITED A FELONY! You did it intentionally, knowing you would win, which you did. By the Judges own statement in court, you and Anaya presented the case, discussed the case, and let the judge know what outcome you wanted, which you got!. That’s called EX PARTE COMMUNICATION and is totally illegal unless done in the presence of the defendant or his attorney. Another FELONY Mr. OGAZ!
    I learned from a Civil Rights attorney, (Gods gift to the common man) that only in Criminal cases is a defendant guaranteed the right to face his accuser. So what was my defense? I got to say 2 WORDS in my defense: “THEY LIED!” TWO FRIGGIN’ WORDS, Mr. OGAZ!
    You are corrupt Mr. Ogaz. Gloria Anaya is corrupt. She withheld my first insurance Payment Due statement for 19 days AFTER the DUE DATE and forced me into default, a condition in which the city could claim my home. A FELONY, Anaya! One reason I called her a bitch, You are both cowards. If your case was so strong, any COMPETANT attorney would willingly present their case openly in court. You risked your career, criminal charges, and even your freedom, because you knew then, as now, you have friends in high places who will do your bidding. The judge didn’t even ask why I didn’t file an appeal, but then, I think she knew all along.
    You’ll like to know that I’ve filed a complaint against you with the California State Bar Association. You denied my right to a fair trial, You illegally forced me into extreme debt, state and federal ELDER ABUSE. A FELONY, Mr.OGAZ! You defend yourself from corruption while filing a lawsuit against the City of Milpitas? Bet you didn’t see that coming, did you?
    As a side note, I’ve contacted my Congressman, Mike Honda, Even extended an invitation to visit my home to see the damage Anaya caused.
    I’ve contacted the office of The California State Attorney General. They want specific details and will review them for merit. (Watch your back, Anaya)
    I’ve written to the California Highway Patrol to find out what police powers, lf any, Anaya had as a Code Enforcement Officer. (Involving entrapment and extortion).
    Also the California State Contractors complaint board, not because of any complaint about the contractors, hired by the City of Milpitas to repair my house, but because of the work Anaya ordered them NOT TO DO. Anaya illegally ordered the destruction of thousands of dollars worth of my property and threatened eviction if I complained. What a sorry woman.
    I’m a 68 year old, disabled Viet Nam veteran. I’ve paid on my home for more than 30 years and paid off the mortgage in the late 1990’s. I was financially secure enough to retire at age 56 in 2004. Now, because of these two corrupt city officials, I’m in debt for $85,000, a debt I will never pay off in my lifetime. I live off my Social Security and retirement checks, I WILL lose my house someday, just a question of when. They didn’t tell residents they spent over $13,500 of taxpayers money to try and evict me and claim my home as city property. Your taxes, their piggy bank. Remember the 99% plastic sign and the $20,000 paid to the ACLU. Anaya, Ogaz and Williams at your service.
    I appeared before the City Council several times to complain and was ignored each time. King Esteves and City manager Tom Williams knew very well what was happening and did nothing. They condoned corruption.
    By the way, King Esteves, next time you stand up for a flag waving photo op, tell the people the truth. This is how you really treat veterans.
    I could die a happy man tomorrow if Ogaz and Anaya were arrested on numerous felony charges.
    If they feel offended, and want to sue me, so be it. They can’t use the taxpayers money this time on a personal power trip. I challenge them. I bet I can convince a jury of 12 HONEST people of their corruption. Want to give it a try? I lose and you win what paltry possessions I own and I go on welfare. I win and you both spend many years in prison, you lose your generous pensions and I sue the city of Milpitas for $10,000,000. What’s that? You don’t want your corruption exposed?
    In all honesty, I think the California State Attorney should investigate the operation of Milpitas City Hall. Too few people have too much power.

    For more on this story, I left a previous reply under the article “City Manager Blamed For……” It’s the last entry. And I guarantee, what you see is only a small tip of the iceberg.

  6. I don’t know a thing about Mr Lund’s case above, but I do know that a rant as such,accomplishes little for the “ranter” and much more for the “rantee”. Lots of sour grapes and a touch of, shall we say, eccentricity? He lost in court and is now trying it in the court of public opinion. I don’t think he’s helping his case much. Furthermore, I’ve know Mr Ogaz for over 40 years and know him to be an ethical and honest person. I would choose to believe him over the rambling Mr Lund any day of the week. I wish him all good fortune in his suit . I have no doubt as to its veracity.