ED SLAVIN
P.O. Box 3084
St. Augustine, Florida 32085-3084
(904) 471-7023
APRIL 20, 2006
Honorable Nilgun Tilek
Director, Office of Investigative Assistance (OIA)
Occupational Safety and Health Administration (OSHA)
United States Department of Labor (USDOL)
200 Constitution Avenue, N.W. Room N3119
Washington, D.C. 20210 via fax to 202-693-2369
ED SLAVIN v. WILLIAM B. HARRISS, JAMES PATRICK WILSON, JOSEPH BOLES, SUSAN BURK, DONALD CRICHLOW & ERROL JONES (each of whom is named in their personal, individual and official capacities for monetary and injunctive relief) and CITY OF ST. AUGUSTINE , FLORIDA (COSA) (named solely for injunctive relief and not monetary damages).:
SWORN, VERIFIED CERCLA WHISTLEBLOWER COMPLAINT
Dear Ms. Tilek:
1. In 1964, Rev. Dr. Martin Luther King, Jr. said that Respondent CITY OF ST. AUGUSTINE (COSA) was "the most lawless city in America." Respondent COSA is presently under criminal investigation for illegal dumping in the Old City Reservoir as a result of my protected disclosures to federal and state officials on and since February 17, 2006. Respondents are all "persons" subject to DOL jurisdiction pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9610. Please accept this sworn, verified, timely CERCLA whistleblower complaint of Respondents' unlawful retaliation against me as a journalist, violating CERCLA rights.
RESPONDENTS' UNLAWFUL RETALIATION
2. The retaliation in this action was taken by Commissioners JOSEPH BOLES, SUSAN BURK, DONALD CRICHLOW, ERROL JONES (named in their personal, individual and official capacities) and Mayor George Gardner (not named as a respondent) At the behest of Respondent City of St. Augustine's Respondent City Manager WILLIAM B. HARRISS, Respondents took two illegal actions last week:
a. On April 10, 2006, Respondent St. Augustine City Commissioners JOSEPH BOLES, SUSAN BURK, DONALD CRICHLOW, ERROL JONES, named as Respondents responsible for payment individually, see infra, paragraph 47) and Mayor George Gardner (not named as an individual respondent) all incorrectly, irregularly and improperly announced their supposed "understanding." without announced public hearing or Sunshine notice, that (contrary to longstanding practice of at least one year) City citizens would no longer be permitted to speak in public comment sessions at both the beginning and end of Commission meetings. Meanwhile, the Respondents have no restrictions or time limits on developers and their lawyers, allowing them to speak at length and at will, without ever filling out a speaker card, popping up to the podium (while Commissioners and at least one developer lawyer have been observed pre-screening citizen speaker cards in a manner that exerts a chilling effect on public rights to comment on environmental issues).. Later during that meeting, a St. Augustine Police Officer moved toward the front of the Alcazar Room in City Hall, halfway to the podium as I was speaking on utility matters, as if expecting a pre-arranged Commission signal to arrest me for protected activity.
b On April 11, 2006, at a specially called hearing, Commissioners BOLES, BURK, CRICHLOW, JONES, voted 4-0 (Mayor Gardner was absent), refusing to honor City's January 6, 2006 promise to pay Roto-Rooter for removal of a sewage obstruction on City-owned right of way at my residence, violating my rights to nondiscrimination under CERCLA. The City's Police Chief sat in on the hearing, although he was not a witness.
RETALIATION FOR COMPLAINANT'S CERCLA PROTECTED ACTIVITY
3. On February 17, 2006, I reported to the National Response Center, allegedly illegal dumping by the Respondent City of St. Augustine at the Old City Reservoir. (Report No. 788280). The report was protected activity under CERCLA. That disclosure has been verified as completely accurate and resulted in a criminal, civil and administrative investigation.
4. On February 24, 2006, I spoke with EPA and interviewed Mayor George Gardner, who told me that Respondent St. Augustine City Manager WILLIAM B. HARRISS had told him that dumping was taking place at the Old City Reservoir had occurred, but that HARRISS claimed it was "clean fill." COSA had been ordered by the St. Johns River Water Management District not to dump anything and violated SJRWMD's orders, dumping 20,000 cubic yards of material. The investigation must scrutinize whether Mayor Gardner was deceived by HARRISS about the City's illegal dumping practices.
5. On February 27, 2006, I accompanied federal and state investigators to the Old City Reservoir, pointing out the City's violations and sharing video evidence with them. City officials somehow learned of the videos, twice requesting copies, the first time on the evening of February 27 outside the City Commission meeting. I twice declined this revealing request, respecting the request of the FDEP's criminal investigator that I not share this evidence with the City. By requesting copies of the video, the City sought to monitor citizen protected activity and gave the impression of surveillance -- how did the City learn that there was a video in the first place?
6. By E-mails starting on February 24 and by February 27, March 13, March 27 and April 10, 2006 in-person questions at the beginning and end of public, televised, regular COSA Commission meetings, I asked questions about the illegal dumping by Respondents, with the written questions numbered 1-77.
7. Not one question was ever answered to date, despite the Mayor's promise on February 27 for "answers." I shared copies of my E-mails with news media, including the St. Augustine Record (daily newspaper) and FOLIO Weekly (weekly newspaper), I have earned Respondents' ire and obloquy by raising critical questions about their unlawful activities, including pollution. Please see my weblog: cleanupcityofstauginstine.blogspot.com
8. The St. Augustine Record printed a front-page banner headline story last week, reporting the state's investigation of our City.
9. Every single one of the Respondents has stonewalled my questions.
10. This Respondent City's unreconstructed attitude toward environmental pollution and coverups is not unlike the public officials in Clay County, whose government has been in the throes of its own illegal dumping scandal and criminal indictments..
11. On March 13, 2006, Respondents BURK, CRICHLOW, BOLES and JONES publicly proclaimed their undying admiration of Respondent HARRISS, with the four defending him against what they claimed were unwarranted criticisms by Complainant (who while not named was understood to be the subject of their comments, which took place before public comments, outside the ordinary course of business in City meetings). Then and there, Respondent BOLES said regarding the illegal dumping questions, without irony, that he was "tired" of Complainant "trashing" HARRISS. Complainant was lambasted by Respondent BURK as a "disgruntled citizen," (e.g. for asking questions about pollution of the Old City Reservoir). Of course, this country was founded by "disgruntled citizens." BURK's abusive use of the adjective "disgruntled" before "employee" is a common semantic tactic of employers retaliating against protected activity. Retaliation came less than one month after being publicly labeled as "disgruntled" by the Vice Mayor. Commissioners have in the past publicly used words like "team player" as a complement, while insisting that their City Manager is doing a perfect job. In Abrams v. Baylor College of Medicine, 581 F.Supp. 1570, 1574 (S.D. Texas 1984), affirmed in relevant part, 805 F.2d 528 (5th Cir. 1986), the Court rejected pretexts for discrimination in refusing to send Jewish physicians to a program in Saudi Arabia, including a "team player" requirement. A "team player" does not blow the whistle or criticize management. "Team player" is freighted with the speech-chilling implication that one is willing to "go along to get along," say what management wants to hear, and do what one is told by managers, no matter what the ethics or legality of the situation. In the political corruption case of United States v. Salvatti, 451 F.Supp. 195, 197-98 (E.D. Pa. 1978), one witness testified that "when she complained to the Mayor about Mr. Carroll's pressure, and advised him that the proposed payment to the Sylks would be totally improper and probably illegal, the Mayor chided her for not being a team player." See also Fitzgerald v. Seamans, 384 F.Supp. 688,697n7 (D.D.C. 1974), affirmed, 553 F.2d 220, 224 (D.C. Cir. 1977), reversed, Harlow v. Fitzgerald, 457 U.S. 800 (1982); Nixon v. Fitzgerald, 457 U.S. 731 (1982) (remarks of President Nixon et al. on need to fire Department of Defense whistleblower A. Ernest Fitzgerald after he testified before Congress on C-5A transport cost overruns); Broderick v. Ruder, 685 F.Supp. 1269 (D.D.C. 1988)(sexual harassment at Securities and Exchange Commission); Tomsic v. State Farm Mutual Automobile Insurance Co, 85 F.3d 1472, 1474 (10th Cir. 1996); Geddes v. Benefits Review Board, 735 F.2d 1412, 1416, 1420 (D.C. Cir. 1984) (Washington Metropolitan Transportation Authority considered workers' compensation claimant not a "team player"); Davis v. California, 1996 WL 271001 (E.D.Cal.1996); Schloesser v. Kansas Dept. of Health & Environment, 766 F.Supp. 984 (D. Kansas 1991); Stradford v. Rockwell International, 48 Fair Empl.Prac.Cas. (BNA) 697, 49 Empl. Prac. Dec. P 38,828,1988 WL 159939 (S.D.Ohio); Seymour M. Hersh, "Annals of National Security: The Intelligence Gap -- How the digital age left our spies out in the cold," The New Yorker, December 6, 1999 at 58, 62.
12. As a direct and proximate result of the CERCLA protected activity set forth in paragraphs 3&5, by March 15 letter (received March 20, 2006 by Respondent COSA's Public Works Department office), Respondents received a letter from Florida's Department of Environmental Protection (FDEP), notifying the Respondents of the commencement of a proceeding and ordering them to take remedial actions. This is a proceeding under the meaning of the CERCLA whistleblower provision. I will E-mail the DOL investigator the FFDEP's letter and 38 color photographs in PDF format. One of the many environmental violations identified by FDEP is lack of proper safety training for City employees on hazardous material handling -- OSHA is requested to investigate further. Mr. HARRISS is believed to be the person principally responsible for the illegal dumping at issue in the proceeding in quo. Reportedly, not a door gets painted in St. Augustine City Hall without Mr. HARRISS' orders. Not one good thing ever happens in our Nation's Oldest City without Mr. HARRISS taking credit for it, using the apparatus of City government as his personal public relations machine. It is "not worthy of belief," DeFord v. TVA, 700 F.2d 281, 286 (6th Cir. 1983) to suppose that 20,000 cubic yards of unclean fill would be dumped in the Old Reservoir without Respondent HARRISS' direct orders.
13. By March 27 COSA proclamation, Mayor George Gardner and the Respondents, BURK, CRICHLOW, BOLES and JONES publicly praised Respondent HARRISS, while ignoring my prior suggestion that City Commissioners give Mr. HARRISS a performance evaluation, just as other government employees receive. It is believed that Mayor George Gardner reluctantly joined in the accolades, with Mr. HARRISS grinning at the Mayor who once promised to check Mr. HARRISS' illegal actions handing him an award... The COSA proclamation in honor of Mr. HARRISS had an intended effect of discouraging City employees from cooperating with criminal investigators and the news media.
14. By April 7 Out in the City (Jacksonville) newspaper column circulated in St. Augustine, Jacksonville and elsewhere, I broke the story of the Respondents' alleged environmental lawbreaking at the Old City Reservoir, in pertinent part stating inter alia:
. Last year, St. Augustine city commissioners rejected rainbow flags 3-2, -- two more votes than in prior years. Although a federal judge ordered the city to fly the rainbow flags for six days, reactionary city burghers then banned further non-government flag-flying,by a 3-1 vote. St. Augustine residents saw how their city is being ruled.
We're learning more. Our government is now under criminal investigation for secretly dumping 20,000 cubic yards of metal, plastic, asphalt, etc. into Old City Reservoir, a spring-fed coquina lake with once-pure water where working families fished and swam that is now contaminated by enough stuff to fill in six Olympic size swimming pools six feet (or cover a football field over eleven feet deep).
Former EPA Regional Administrator John Hankinson compares the lake to "an open sore right down to the aquifer." The St. Johns River Water Management District is cooperating with criminal investigators.
Now politicians who insulted gays and allegedly polluted a reservoir will answer to voters.
As"Tip" O'Neill said, "all politics is local."
15. Paragraphs 3-6 &, 14 describe protected activities under CERCLA.
16. Respondents were all on notice of the protected activities in paragraphs 3-6.
17. Some or all of the Respondents were on notice of the protected activity in paragraph 14.
18. Paragraphs 2a & 2b are retaliation prohibited by CERCLA in retaliation for the protected activity alleged in paragraphs 3-6 & 10.
19. In addition to the retaliation set forth in paragraphs 2a & 2b, Respondent JAMES PATRICK Wilson has bragged of using City computers and resources to gather background material on the undersigned, constituting unlawful surveillance. It is believed that City employees have wasted millions of dollars in tax and grant monies, parts of which have been spent investigating critics of the City administration, by licit and or illicit means.
20. The retaliation complained of in paragraphs 1a & 1b is in extraordinarily close temporal nexus to the protected activity since February 17, 2006.
21. Elapsed time from the Out in the City column to the retaliation was three (3) and four (4) days.
22. Elapsed time from the February 27 questions to the action complained of was 42 and 43 days, respectively. Respondents' illegal motives are beyond cavil.
23. Respondents had no lawful business reasons for the actions complained of in paragraphs 2a & 2b.
24. The action complained of in paragraph 2a was also in violation of the Florida Sunshine Law, as no public notice was given of the restriction on people asking questions at both the beginning and end of the meeting.
25. The actions complained of in paragraph 2b were taken on April 12, at the end of a one hour nonpublic meeting behind locked doors, with the press and public excluded and the meeting held in a place differently than originally announced. Mayor/Commissioner Gardner was not present for the meeting, in which Respondents admitted not reading the administrative record, which contained E-mails from City Attorney JAMES PATRICK WILSON, reflecting his actual malice and willful disregard of the truth, and willful intent to injure us. Our City Commissioners are guilty of not viewing the hearing appealed from and decided to affirm a decision refusing the City's commitment to pay for removal of a sewage obstruction on the City right-of-way. Respondents BOLES, BURK, CRICHLOW and JONES violated CERCLA and my constitutional right to a fair administrative adjudication before a neutral decisionmaker. See, e.g., United States v. Mississippi Valley Generating Co., 364 U.S. 520, 548 (1961), citing Matthew 6:24 -- "no [person] can serve two masters," holding that laws and rules preventing conflicts of interest is aimed "not only at dishonor but at conduct that tempts dishonor." A "fair trial [and appeal] in a fair tribunal is a basic requirement of Due Process." In re Murchison, 349 U.S. 133, 136 (1955); Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813 (1986).. This Due Process requirement applies to agencies as well as to judges: it has been violated. See Withrow v. Larkin, 421 U.S. 35, 46 (1975); Gibson v. Berryhill, 411 U.S. 564 (1973); American Cyanamid v. Federal Trade Commission (FTC), 363 F.2d 757, 764-67 (6th Cir. 1966); Tumey v. Ohio, 273 U.S. 510 (1927); Ward v. City of Monroeville, 409 U.S. 57 (1972). See also Hornsby v. Dobard, 291 F.2d 483, 487 (5th Cir. 1961); Berkshire Employees Assn. v. NLRB, 121 F.2d 235 (3d Cir. 1941); Texaco v. FTC, 336 F.2d 754, 760 (D.D.C. 1964), vacated on other grounds, 381 U.S. 739 (1965); Aldom v. Borough of Roseland, 42 N.J. Super. 495, 127 A.2d 190 (1956); Pyatt v. Mayor and Council, 9 N.J. 548, 89 A.2d 1 (1952); Petition of Jacobson, 234 Minn. 296, 48 N.W.2d 441 (1951); State Board of Dry Cleaners v. Thrift-D-Lux Cleaners, 40 Cal.2d 436, 254 P.2d 29 (1953); Driscoll v. Burlington-Bristol Bridge Co., 10 N.J. Super. 545, 77 A.2d. 255 (1950), aff'd 8 N.J. 433, 86 A.2d 255 (1950), cert. denied, 73 S.Ct. 25; Jones v. State Dept. of Public Health & Welfare, 354 S.W.2d 37 (Mo. App. 1962); Wilson v. Iowa City, 165 N.W.2d 813 (Iowa 1969); Josephson v. Stamford City Planning Board, 151 Conn. 489, 199 A.2d 690 (1964); Glass v. Mackle, 370 Mich. 482, 122 N.W.2d 651 (1963); S&L Associates, Inc. v. Washington Twp., 61 N.J. Super. 312, 160 A.2d 635 (1960), aff'd in part and rev'd in part, 35 N.J. 224, 172 A.2d 657 (1961); Jones v. MacDonald, 33 N.J. 132, 162 A.2d 817 (1960); Bracey v. City of Long Beach, 73 N.J. Super. 91, 179 A.2d 63 (1962).
26. Respondent City Attorney JAMES PATRICK WILSON was empowered to lead the Commissioners by the nose, stating the "issues" and manipulating the outcome. Both James Madison and William Blackstone would have roundly rejected this ruling on a case by a person who raised and created the tissue of an "issue" against me. James Madison wrote in The Federalist, Number 10: "No [person] is allowed to be a judge in his [or her] own cause, because [his or her] interest would certainly bias [her] judgment, and, not improbably, corrupt [her] integrity .... " As Blackstone wrote, "it is unreasonable that any [person] should determine [her] own quarrel." 1 William Blackstone, Commentaries at 91. Respondents BURK, BOLES, CRICHLOW and JONES ruled on a "quarrel" of their own creation. This was unconstitutional and a violation of my CERCLA rights.
27. The purpose of the actions complained of in paragraph 2a and 2b was to coerce, restrain and chill exercise of CERCLA protected activity before the COSA City Commission.
28. Mayor George Gardner is not named as a Respondent to be held individually liable in this action. He is not being named today because of what I still currently believe to be his earnest, sincere efforts on December 30, 2005 to January 6, 2006 were to provide the services the City is lawfully required to provide (at issue in paragraph 2b) and because his actions regarding paragraph 2a are believed to have been based upon inflammatory rhetoric and flummery by the other Respondents.
29. Respondent COSA's designated Hearing Officer (and Chief Operating Officer) John Regan is not named as a Respondent in this action today due to what I currently believe to have been his earnest, sincere efforts were to hold a fair hearing. After the hearing he held in January 2006, Mr. Regan was pressured by City Manager William HARRISS to rule contrary to the law and facts. In discussing the case with me at his instance by phone, Mr. Regan said that he served at "the pleasure of" Mr. HARRISS and could be fired "at will," with no right to hearing or appeal.. Mr. Regan and other persons who are involved with environmental issues have never been briefed about their environmental whistleblower rights by Respondent City Attorney Wilson Mr. Regan is right to fear retaliation by HARRISS. So do all City employees and many City residents. Injunctive relief is required.
30. There is probable cause to believe that Respondents may also have violated:
a. Criminal and civil laws against civil rights conspiracies by public officials. 18 U.S.C. §§ 2, 241, 243, 42 U.S.C. § 1985; and.
b. The oath of office required of every public official under the U.S. Constitution, Article VI to uphold the Constitution of the United States, in which officeholders promise to "preserve, protect and defend" our U.S. Constitution...
31. I respectfully request declaratory, affirmative action and injunctive relief against COSA and every single one of the individual Respondents. I request compensatory damages and other relief against the individual Respondents, whose ultra vires actions are outside the scope of their lawful duties and must be paid for by the individual Respondents and NOT by taxpayers.
32. Upon information and belief, at least some of the Respondents have discussed these issues among themselves ex parte, in violation of Florida law, as evidenced by their preserving a united front on:
a. March 13 & 27 on public criticism of HARRISS' environmental devastation;
b. April 10 on the unprecedented, unlawful limitation on public speaking; and
c. April 11 in the sham Commission water and sewer service obstruction hearing and their arbitrary, capricious and unconstitutional:
i. one-hour time limit;
ii. extraordinary unwritten rules;
iii. outcome-predetermined result;
iv. secretive hearing location behind locked doors, excluding the public and other news media from attending. The hearing was initially set for the City Commission's customary location (the Alcazar Room) and changed without discussion, forcing me to argue the appeal under an expensive oil portrait of Spanish colonial Governor Pedro Menéndez, who ordered the murder of a "Sodomite and a Lutheran" -- the first anti-Gay hate crime in North American history, as I reported in The Collective Press in June 2005 and in Out in the City (cover story);
v. Refusal to read any parts of the record or to view the City's own hearing videotape (or hold the hearing in a room with a VCR or allow time for presentation of the videotape) of the unresponsive, rude behavior of Respondent COSA's Administrative Officer Timothy Burchfield, Assistant City Attorney James Whitehouse, while Respondent BOLES claimed that I was "rude" for revealing Respondents' pollution and retaliation and insisting on fair procedures;. And
vi. Refusal to rule for us despite undisputed Requests for Admissions and unrebutted Proposed Findings of Fact and Conclusions of Law, and unanswered Motions for Default Judgment and Summary Decision.
33. COSA's retaliatory action (paragraphs 2a & 2b) requires prompt remedial action by DOL. See Jenkins v. EPA, 92-CAA-6 (Sec'y May 18, 1994)(CERCLA); Marcus v. EPA, 92-TSC-5 (Sec'y Feb. 7, 1994); Tyndall v. EPA Inspector General, 93-CAA-6, 95-CAA-5 (ARB, June 14, 1996); Erickson v. EPA & OIG (Erickson I)(Hon. Clement J. Kennington, September 24, 2002 RDO); Erickson v. EPA (Erickson II), 2003-CAA-11 (Hon. Clement Kennington, November 13, 2003). In response to Erickson I, a series of high-level EPA managers claimed not to have read Judge Kennington's RDO, at best showing "willful blindness." See "Voluntary Environmental Self-Policing and Self-Disclosure," 60 Fed. Reg. at 66,711 (1995) about how EPA may refrain from criminal referral IF violations are not due to "willful blindness" or corporate executive complicity. See also, William S. Duffey, Jr. & Phyllis B. Sumner, "Collective Knowledge and Willful Blindness—New Liability Under Old Law," South Carolina Lawyer, Jan./Feb. 1994, at 32.
34. "Willful blindness" is exactly what Respondents have shown by berating Complainant, praising Respondent HARRISS and refusing to answer any of the 77 questions regarding the illegal dumping, while taking the retaliatory actions limiting public speaking and otherwise retaliating.
35. The first hate crime in North American history was committed by Pedro Menéndez, founder of COSA, who ordered the murder be committed in secret (exposed by my June and August 2005 articles, quoting historical records found in the St. Augustine Historical Society). For 440 years, COSA has had an unrivaled 440 year history of human rights violations and government secrecy, including a lack of respect and sophistication about rights to criticize officials and participate meaningfully in government, e.g.:
a. Beating, clubbing, incarcerating and maiming civil rights demonstrators 1963-4, when St. Augustine was refusing to comply with civil rights laws. A police riot and racist violence resulted in the arrest of Rev. Dr. Martin Luther King, Jr., who called it "the most lawless city in America.." See the film by Jeremy Dean, Dare Not Walk Alone (2006). Andrew Young, later our UN Ambassador, was clubbed while police watched. St. Augustine's 59 policemen today are all-white in a City that is 15% African-American while our City still refuses to annex African-American areas of West Augustine, which is charged 25% more than City residents for water and sewer;
b. First Amendment violations in denying Gay Americans the right to fly Rainbow flags on the Bridge of Lions, found by United States District Judge Henry Lee Adams, Jr. on June 7, 2005 in St. Augustine Pride Committee v. COSA;
c. Voting Rights action violations including refusing to discuss or answer questions about the possibility of annexing the African-American area of West Augustine outside our City limits, which is as a result still charged 25% more for water and sewer service (despite holding himself out as a civil rights advocate).
d. Spending public funds on extravagant trips to Spain, Germany and New York City for themselves (with one 2005 trip to New York City costing over $8100 alone for the Respondent Commissioners, HARRISS, their spouses and significant others, who were also feted at private dinners by bonding companies),
e. Violating the rights of entertainers and artists on St. George Street, as found by federal courts; and
f. Burning the Declaration of Independence, John Adams and John Hancock in effigy in the Slave Market Square in 1776.
36. Acting pursuant to the illegal customs of COSA in violating its citizens' rights, Respondents HARRISS, WILSON, BOLES, BURK, JONES AND CRICHLOW acted ultra vires when they violated environmental laws. They are part of a dysfunctional management culture in COSA in which officials are dominated by large organizations and spend public funds unwisely, without public discussion of purchasing practices or pollution. In that culture Respondents should be investigated over their participation in a culture of possibly
habitual Sunshine Law violations, one allegedly involving frequent meals, entertainment and travel shared by Respondent COSA's City Commissioners for decades.
37. Respondent Commissioners BOLES, BURK, JONES and CRICHLOW showed animus in their blithe, bold, admitted refusal to read the administrative record in the matter at issue in paragraph 2b. Ruling on an appeal without reviewing the record shows "prejudice," defined as "an avertive or hostile attitude." Gordon W. Allport, The Nature of Prejudice (1954) @ 8-10.
38. Respondents BOLES, BURK, JONES and CRICHLOW showed animus by their admitted, undisputed refusal to read or view the administrative record by four persons who once falsely presented themselves as "reformers" speaks volumes. The Commissioners admitted they had not read the Proposed Findings of Fact and Conclusions of Law (PFFCL), viewed the videotapes, read the motions. The Administrative Record was nowhere present in the hearing room. The "willful blindness" of Respondents CRICHLOW, JONES, BURK and JONES and BOLES (both on illegal dumping and their refusal to answer citizen questions or read the Administrative Record) is freighted with animus toward citizens' CERCLA protected activity rights, evidencing their hatred and loathing of Complainant for asking questions about COSA's illegal dumping at the Old City Reservoir..
39. Respondent Commissioner CRICHLOW is an architect whose clients include natural and jural persons and small and large organizations seeking City permits and approvals, who seldom recused himself until an ethics complaint was filed against him last year. CRICHLOW now sometimes recuses himself, looks at Complainant and smiles, sometimes even laughing or joking at the idea of a good-ole-boy being required to identify possible conflicts of interest to the electorate and recuse himself.. In May 2005, Respondent CRICHLOW was quoted by FOLIO Weekly (Jacksonville-based weekly newspaper) to the effect that the City would not allow the Audubon or Human Society to fly their flags on the Bridge of Lions simply because a "bird or a dog" was killed in Colonial times, comparing Gay and Lesbian people to animals and trivializing the Nation's first recorded anti-Gay hate crime, done on orders of the Florida Governor who was St. Augustine's founder. Every year, Respondents CRICHLOW, et al. join in celebrating Pedro Menéndez's birthday at a COSA taxpayer-subsidized masqued ball that includes a champagne toast, "viva Menéndez!" On April 11, 2006, Respondent CRICHLOW was heard questioning St. Augustine's Police Chief about an allegedly "Vietnamese" shrimpers in Maria Sanchez Lake, near one o Respondent CRICHLOW's homes.
40. Respondent Commissioners JOSEPH BOLES is a local attorney who has done legal work for animal rights causes. BOLES is understood to have close links to local developers and to be a close friend and golfing buddy of Respondent CRICHLOW. BOLES has been observed making faces at citizens' speaker cards as he is the first person who reads them and passes them down to his right, to Respondent JONES and Mayor Gardner. Mr. BOLES was observed January 9 shaking his head to City staff when citizens asked to present videotape of existing environmental and drainage problems on a site of ancient indigenous significance, on which he supported placing condominiums and a strip mall. (Mayor Gardner dissented from Graubard's Planned Unit Development project).
41. Respondent Commissioner SUSAN BURK is a local domestic relations lawyer who has zealously defended the rights of women. Her alleged ex-boyfriend, Robert Graubard, is a developer who received City permission to build projects in wetlands, including condominiums and a strip mall on a sacred Indian site that may contain 2000-4000 year old religious sites and burial sites. Mr. Graubard should be interviewed to confirm statements he has allegedly made, bragging about monies he contributed to elect Respondent BURK. Commissioner BURK has previously shown her willingness to engage in flummery regarding possible illegal conduct by Respondent HARRISS. On or about April 11, 2005, Respondent HARRISS came up to me without introducing himself and threatened me with arrest for "disorderly conduct" after a City Commission meeting in which I had raised concerns about the City's annexation policies, the Voting Rights Act being violated by those annexation policies, and environmental concerns about one annexation (suggesting a "motion to table," which the Commissioners passed). In response to concerns about Respondent HARRIS' threats Respondent BURK sent an E-mail denying this conversation had taken place, claiming that she had exited the room with him. Commissioner BURK sent her denials of HARRISS' threats by E-mail to her fellow Commissioners. Commissioner BURK's denials were then rebutted immediately by an affidavit I had already secured from a witness, Ms. Sue Neely, who heard HARRISS' threats. Commissioner BURK did not further respond regarding HARRISS' threats. Her angry denial that they took place -- and Respondent HARRISS' joking publicly about her frequently changing her mind -- makes her an unreliable witness, whom the investigator should approach with caution. Other persons speaking from the audience without officially recognized are not arrested or threatened with arrests, including developers, City Chief Administrative Officer Timothy Burchfield and Respondents HARRISS and WILSON, who make remarks and talk while other persons are speaking without censure or sanction. This situation of the laughing, talking and immaturity of Burchfield, HARRISS and WILSON is known to Commissioners, who have done nothing to inculcate respect by City employees for persons engaged in protected activity..
42. Respondent Commissioner JONES is a social worker employed for St. Johns County Schools and has close ties to developers, including Robert Graubard. Like Respondent BOLES, Respondent JONES has been observed making faces at citizens' speaker cards as he passes them to his right, to Mayor Gardner.
43. Respondents BURK, CRICHLOW, JONES and BOLES refuse to do their homework on local projects adversely affecting our ancient city and community's environment and history. Their poor grasp of parliamentary procedure leaves them at the mercy of the Respondent City Manager WILLIAM B. HARRISS. Commissioners' shallow remarks during the Commissioner's Comments segment of the agenda range from purely personal to religious to mundane. Respondents almost never answer or address the real concerns of City residents about environmental health issues.
44. The actions of Respondents BURK, CRICHLOW, JONES and BOLES at issue in this complaint (paragraphs 2a & 2b) are intended to chill CERCLA protected activity at a time when illegal dumping is just beginning to get public scrutiny.
45. Illegal dumping can have harmful, toxic and fatal effects on children, families and public health, Respondents' illegal dumping in the Old City Reservoir. Respondents attempt to punish protected activity and chill free speech rights or inflict an oath of omerta on City employees and residents is a clear and present danger to life, liberty and the pursuit of happiness by St. Augustine residents.
FULL REMEDIES ARE RESPECTFULLY REQUESTED
46. Therefore, I respectfully request the following remedies after an investigation, hearing and discovery:
a. Orders reversing the actions complained of in paragraphs 2a & 2b;
b. Joint and several liability of individual respondents (with no financial contribution sought by the City, its residents or its taxpayesr) for damages and remedies, with the requirement that the individual Respondents call their own insurance carriers and hire their own lawyers, since retaliation is ultra vires their COSA job responsibilities and violates the oath they took pursuant to Article VI of the United States Constitution;
c. Compensatory damages to be ordered by the Administrative Law Judge (ALJ);
d. Legal fees and expenses to be ordered by the ALJ;
e. Notices to citizens and employees, including website information and posters informing everyone of their rights under CERCLA and other environmental whistleblower laws;
f. Orders to Respondents to cease and desist violating citizens' civil and constitutional rights to engage freely and without coercion in protected activity under whistleblower laws;
g. Injunctive relief and affirmative actions to prevent any further violations or discrimination against other citizens and employees and order posting of notices to all citizens and employees of all remedial orders in this case, including allowing citizens to speak unmolested and unimpeded by de facto or de jure content restrictions, prior restraint or deviations from the long-prevailing public comment policies;
h. Orders that Respondents conduct mandatory meetings of all of Respondents' employees, and training sessions in which all employees are required to attend, during normal working hours, during days or times exclusively dedicated to that purpose, with no other work to be done, to apologize for the hostile working environment. Snell v. Suffolk County, 611 F.Supp. 521, 531-32 (E.D.N.Y. 1985)(requiring Warden to appear before correctional officers to remedy hostile working environment, requiring him to forbid discrimination, racially hostile acts, assure prompt and severe discipline of violators, designation of an affirmative action officer to remedy violations, and establishment of human relations workshops). For verification and emphasis, I respectfully requests that the apology be videotaped and that the video apology be shown to all of Respondents' managers once each year and be shown during the orientation of each new, rehired or transferred COSA employee in perpetuity;
i. Mandatory protected activity and sensitivity for each of Respondents' employees and agents from the top down and skill assessment of managers, on the fundamental rights of all citizens employees to report concerns and be advised of their whistleblower rights, and to have those rights respected, without fear, favor or reprisal;
j. An order by the Secretary of Labor against Respondents and their agents and contractors and successors to cease and desist from surveillance or giving the impression of surveillance (including demanding a copy of video provided to EPA and FDEP the same day it was provided and the City Attorney JAMES PATRICK WILSON's bragging of his use of Google® to coerce, restrain and intimidate persons engaging in protected activity and the presence of the Police Chief and officers in public meetings, abused in menacing manner by the Respondents);
k. An order referring Respondents to the Justice Department, FBI and EPA Office of Inspector General for investigation of their possible violations of 5 U.S.C. §§ 1505, 1512 and or 1513 (retaliation against protected witness or informants). See supra, pp. 7-8 (EPA "willful blindness" standard on crimes applicable to COSA as respondent in whistleblower cases);
l. Appointment of monitors to verify compliance with DOL's orders, with continuing unannounced access to the workplace to verify posting requirements;
m. The use of firm deadlines that trigger hearings;
n. Imposition of per diem liquidated damages of $10,900 per day in the event the remedial order is not complied with;
o. Other changes intended to make the environmental whistleblower statutes and the First Amendment live (at last) in the COSA workplace, and to counter Respondents' chilling effect on citizen and employee rights under the Acts.
p. Ordering every manager named in it to read the RDO and be tested on it, with a test of sufficient length and complexity to test comprehension of the subject matter.
q. An order declaring that the "pollution exclusion" in the City's insurance contract bars the expenditure of any insurance company monies on defense of this action.
r. Such other, further and general relief as the Court finds right and just, necessary and proper, with a view toward extirpating all forms of anti-whistleblower retaliation in the Nation's Oldest City, from this day forward.
47. There is no question of DOL's inherent authority to hold accountable those intentional wrongdoers accountable qua individuals, rather than looking to City taxpayers (once again) to pay for the City government's malfeasance. See Schemm v. Pro Transportation, 2001-STA-11 (Honorable Clement J. Kennington, January 19, 2001)(denying motion to dismiss individual respondent); Gagnier v. Steinmann Transportation, Inc., 91-STA-46 (Sec'y July 29, 1992)(ALJ properly added respondents referenced in formal complaint); Wilson v. Bolin Associates, Inc., 91-STA-4 (Sec'y Dec 30, 1991)(amending complaint to charge the person actually responsible for firing). See also Dempsey v. Fluor Daniel, Inc., 2001-CAA-5 (Hon. Edward C. Burch, June 27, 2001 RDO); Donovan v. Diplomat Envelope, Inc., 587 F.Supp. 1417 (E.D. N.Y. 1984), aff'd. 760 F.2d 253 (2d Cir. 1985) (table); Kelley v. Thomas Solvent Co., 727 F. Supp. 1532, 1541-44 (W.D. Mich. 1989) (individual corporate officers or directors personally under section 107 of CERCLA); Meredith v. Federal Mine Safety & Health Review Commission, 177 F.3d 1042, 1052-56 (D.C. Cir. 1999); See United States v. Dotterweich, 370 U.S. 277 (1943); see also United States v. Iverson, 162 F.3d 1015 (9th Cir. 1998)(CEO incarcerated for directing the dumping of barrels of toxicants into sewers). 33 U.S.C. §1367 (1994); 30 U.S.C. §815(c)(1994); 29 U.S.C. §660(c). See also York v. Tennessee Crushed Stone Assn., 684 F.2d 360, 362 (6th Cir. 1982); Paroline v. UNISYS Corp., 879 F.2d 100 (4th Cir. 1989), vacated on other grounds, 900 F.2d 27 (4th Cir. 1990); Steele v. Offshore Shipbuilding, 867 F.2d 1311 (11th Cir. 1989); Maturo v. National Graphics, Inc., 722 F.2d F.Supp. 916 (D. Conn. 1989); Guyette v. Stauffer Chemical Co., 518 F.Supp. 521, 525-26 (D.N.J. 1981); Robson v. Eva's Super Market, Inc., 538 F.Supp. 857 (N.D. Ohio 1982); Kinnally v. Bell of Pennsylvania, 748 F. Supp. 1136 (E.D. Pa. 1990); Hall v. Gus Constr. Co., 842 F.2d 1010, 1015-16 (8th Cir. 1988); Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486 (M.D.Fla 1991); Tafoya v. Adams, 612 F.Supp. 1097 (D. Colo. 1985); Owen v. Rush, 636 F.2d 283 (10th Cir. 1980); Jeter v. Boswell, 445 F.Supp. 946 (N.D. W. Va. 1983); Kyriazi v. Western Electric Co., 476 F. Supp. 335, 340 (D.N.J. 1979); Ponton v. Newport News Sch. Bd., 632 F. Supp. 1056), 1068-69 (E.D. Va. 1986). See also Vakharia v. Swedish Convent Hospital, 824 F. Supp. 769, 784 (N.D. Ill. 1983); Gaddy v. Abex Corp., 884 F. 2d 312, 318-19 (7th Cir. 1989); EEOC v. Vucitech, 842 F.2d 936, 942 (7th Cir. 1988).
48. Monitors to ensure compliance are necessary and proper. See Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486, 1545 (M.D. Fla. 1991)(appointing plaintiff's attorney organization, the NOW Legal Defense Fund, as monitor to assure continued compliance with remedial order in sexual harassment case, subject to employer's right to advise the court about the feasibility of implementation). See Belton, § 8.9 (Other Nonmonetary Relief -- Hostile Environment) at 283, characterizing the Robinson case's monitoring provision and involvement of the NOW Legal Defense Fund as both "important and innovative."
49. DOL has the power to order Respondents cease and desist from surveillance or giving the impression of surveillance. Consolidated Edison Company, 4 NLRB 71, 94 (1937), enforced, 305 U.S. 197 (1938); Atlas Underwear Co. v. NLRB, 116 F.2d 1020, 1023 (6th Cir. 1941); NLRB v. Ford Motor Co., 119 F.2d 326 (5th Cir. 1941); Press Co. v. NLRB, 118 F.2d 937 (D.C. Cir. 1940), cert. denied 61 S.Ct. 1118; NLRB v. Baldwin Locomotive Works, 128 F.2d 39, 49 (3d Cir. 1942); NLRB v. Jasper Chair Co.., 138 F.2d 756 (7th Cir. 1943); NLRB v. Collins & Aikman Corp., 146 F.2d 454, 455 (4th Cir. 1944). Have Respondents given the impression of surveillance? It is well known by DOL that --
whistleblowers often face some type of surveillance from either the government, the industry, or some other private investigator. The experience can be very frightening and can add an ominous presence to the misery of blowing the whistle.... We often advise that if someone is watching you, he or she wants you to become affected by the surveillance and to act irrationally about it. It can be another way of bullying you into a mistake.
Government Accountability Project, et al. Courage Without Martyrdom -- A Survival Guide for Whistleblowers 5 (1989)(Emphasis added). I request a remedy for surveillance or giving the impression of surveillance, in order to halt future lawbreaking. See NLRB v. Anchorage Times Publishing Co., 637 F.2d 1359, 1365-6 (9th Cir.), cert. denied, 454 U.S. 835 (1981); NLRB v. Randall P. Kane Co., 581 F.2d 1124, 1131 (9th Cir. 1978); NLRB v. Squire Shops, Inc., 559 F.2d 486, 487 (9th Cir. 1977); NLRB v. Miller Redwood Co., 407 F.2d 215, 218 (9th Cir. 1978); NLRB v. Intertherm, 596 F.2d 267 (8th Cir. 1979); Russell Stover Candies, Inc. v. NLRB, 551 F.2d 204, 207 (8th Cir. 1977); NLRB v. Speed Queen, 469 F.2d 189, 191 (8th Cir. 1973); NLRB v. Hawthorn Co., 404 F.2d 1205, 1208-09 (8th Cir. 1969); Olsen Rug Co. v. NLRB, 304 F.2d 710, 714-15 (7th Cir. 1962); NLRB v. Tidelands Marine Service, 339 F.2d 291 (5th Cir. 1964); National Phosphate Corp., 211 NLRB 567 (1974); Fotomat Corp., 207 NLRB 461 (1973); J.P. Stevens & Co., 245 NLRB 198 (1979); Laidlaw Waste Systems, 305 NLRB No. 5 (1991); see also Local 309, United Furniture Workers v. Gates, 75 F.Supp. 620, 625-26 (N.D. Ind. 1948); Alliance to End Repression v. City of Chicago, 742 F.2d 1007 (7th Cir. 1984); Handschu v. Special Services Divn, 349 F.Supp. 766 (S.D.N.Y. 1972); Presbyterian Church (USA) v. United States, 870 F.2d 518 (9th Cir. 1989); Philadelphia Yearly Meeting of the Religious Society of Friends v. Tate, 519 F.2d 1335 (3d Cir. 1975); Paton v. LaPrade, 524 F.2d 862 (3d Cir. 1975); Cf. Fr. Robert F. Drinan, "First Amendment Endangered" (book review) 78 Geo L.J. 2057 (1990). Injunctive relief against Respondents engaging in surveillance or giving the impression of surveillance must be ordered by DOL. Otherwise, "[o]nly a brave soul would dare to express anything other than orthodoxy under such circumstances." White v. Davis, 120 Cal. Rptr. 94 (1975).
MOTION TO DISQUALIFY COSA CITY ATTORNEY'S OFFICE
AND RESPONDENT JAMES PATRICK WILSON
UNDER THE ATTORNEY-WITNESS RULE
50. I hereby respectfully move and request that Respondent JAMES PATRICK WILSON, COSA's City Attorney's Office and all of the City Attorney's employees be disqualified from ever representing Respondents in any aspect of this matter since WILSON, et al. intentionally made themselves percipient witnesses by their illegal actions.
51. It would be unseemly for Respondent MR. JAMES PATRICK WILSON to represent COSA, its Commissioners, or anyone other than himself -- to do so would violate the lawyer-witness rule. See Hull v. Celanese Corp., 513 F.2d 568, 571 (2nd Cir. 1975); Westinghouse Elec. Corp. v. Gulf Oil Corp. 588 F.2d 221, 225 (7th Cir. 1978); IBM v. Levin, 271, 283 (3d Cir. 1978); Cardinale v. Golinello, 42 N.Y.2d 288 (N.Y. App. 1977). Goss Graphics Systems, Inc. v. Man Roland Druckmaschlinen Aktiengesellschaft, 2000 U.S. Dist. LEXIS 181000 (N.D. (N.D. Iowa 2000) (disqualifying Kirkland & Ellis); Asyst Tech. Inc. v. Empek, Inc., 962 F.Supp. 1241 (N.D. Cal. 1997)(disqualifying Wilson, Sonsini, Goodrich & Rosati); New Jersey Blue Cross/Blue Shield v. Phillip Morris, Inc., 53 F.Supp. 2d 338, 347 (E.D.N.Y 1999) (disqualifying Winston & Strawn); Islander East Rental Program v. Ferguson, 917 F.Supp. 504, 506 (S.D.Tex. 1996)(disqualifying Fulbright & Jaworski); Shadow Traffic Network v. Superior Court. 29 Cal Rptr. 2d 693 (Ct. App. 1994) (disqualifying Latham & Watkins); USFL v. NFL, 605 F. Supp. 1448, 1544 (S.D.N.Y. 1985)(disqualifying Paul, Weiss, Rifkind, Wharton & Garrison). See, also Westinghouse Elec. Corp. v. Gulf Oil Corp. 588 F.2d 221, 225 (7th Cir. 1978); IBM v. Levin, 271, 283 (3d Cir. 1978); Hull v. Celanese Corp., 513 F.2d 568, 571 (2nd Cir. 1975); Cardinale v. Golinello, 42 N.Y.2d 288 (N.Y. App. 1977). See, also United States v. Mississippi Valley Generating Co., 364 U.S. 520, 548 (1961)(citing Matthew 6:24 -- "no man can serve two masters" -- holding that preventing conflicts of interest is aimed "not only at dishonor but at conduct that tempts dishonor.")
52. It would at best "tempt dishonor" for WILSON to have any role in defense of the other Respondents in this action, having repeatedly been involved in violating CERCLA. None of WILSON's actions are privileged.
RESPONDENTS MUST PRESERVE ALL EVIDENCE
53. COSA must preserve all evidence. Please order them to do so. . COSA has been uncooperative in providing documents to citizens in the past and I fear that COSA will withhold evidence from DOL in response to this complaint.
RIGHTS TO ASK QUESTIONS ABOUT ILLEGAL DUMPING
AND OTHER ENVIRONMENTAL ISSUES WILL BE
PRESERVED, PROTECTED AND DEFENDED
54. I considered myself to be an environmentalist since before the first Earth Day, when I was 13. As an undergraduate at Georgetown University, I worked for three U.S. Senators. After law school, I clerked for the Chief Judge of the U.S. DOL Department of Labor, served as Legal Counsel for Constitutional Rights of the Government Accountability Project, won punitive damages actions federal agencies thrice in 2002-2003 in environmental whistleblower cases. As a journalist before law school, I was recommended for a Pulitzer Prize in 1983 by the Anderson County, Tennessee District Attorney for winning declassification of the largest mercury pollution event in the history of this planet (4.2 million pounds of mercury emitted by Oak Ridge nuclear weapons plants). I published seven articles on civil rights issues in American Bar Association publications 1986-1992, including two in the Judges' Journal.
55. I have frequently spoken out on environmental issues in this county, the eighth fastest growing county in America, a place where political chicanery and civil rights violations have a long tradition dating back hundreds of years. Not one of the Respondents has demonstrated any commitment to environmental protection. Far from it, they have deposited 20,000 cubic yards of contaminants in the Old City Reservoir, a place where local residents fished and swam for generations.
56. By telephone, Mr. John Regan made derisive reference to "what you have done," referring to me, for having reported the City's actions to the National Response Center, resulting in the commencement of a proceeding under federal environmental laws.
57. As a result of "what [I] have done," (actually, more precisely my truthfully, candidly reporting "what [Respondents] have done"), I have been publicly vilified and punished by Respondents for my CERCLA environmental protected activity.
58. Meanwhile, Respondents have not answered a single question and seek to stonewall the press, the public and environmental regulators and investigators.
59. As Thomas Jefferson said, "I swear before Almighty God eternal hostility over every form of tyranny over the mind of [hu]mankind." Like any good diplomat, I will not take no for an answer. As the marble carving over the Georgia Supreme Court's bench (site of the Erickson I trial in 2002) proclaims
Fiat justitia ruat coelum ("Let justice be done though the heavens fall").
60. By copy of this complaint, I hereby place Respondents on notice that I expect them to comply with CERCLA and other laws from this day forward and that I will continue speaking out on their environmental lawbreaking and other abuses of power, e.g., illegal dumping in the Old City Reservoir. I further expect, pendente lite, that the Respondents will:
A. Restore the status quo ante regarding speaking at Commission meetings, without forcing citizens to choose whether to speak before or after the meeting, but allowing them to do both as has been the case for at least one year; and
B. Grant a rehearing on our MLG&W v. Craft hearing appeal, in which an injustice was intentionally done to punish me for CERCLA protected activity.
61. If Respondents do not remedy the violations complained of by 5 PM on April 24, I hereby respectfully request a full and fair investigation of Respondents' invidious discrimination and retaliation for revealing their illegal dumping to EPA and state regulators to remedy the violations of my God-given rights under the First, Ninth and Fourteenth Amendment rights and CERCLA. Be not afraid.
Respectfully submitted,
ED SLAVIN
COMPLAINANT
c. Mr. William Pence, Esquire (via fax to 407-843-6610)
Mr. Michael Hill, USEPA OIG SAC, Atlanta (via fax)
STATE OF FLORIDA
COUNTY OF ST. JOHNS
DECLARATION OF ED SLAVIN
I, Ed Slavin, swear and declare pursuant to the penalty of perjury set forth in 18 U.S.C. § 1001 and 28 U.S.C. § 1746 that all of the statements in the foregoing document are true to the best of my knowledge and belief. Today is April 20, 2006. Further affiant saith not.
ED SLAVIN
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