MAYOR GARDNER'S LAST-MINUTE PREVARICATIONS

MAYOR GARDNER'S LAST-MINUTE PREVARICATIONS
ABOUT ILLEGAL DUMPING IN THE OLD CITY RESERVOIR

When I was a little boy, my mother had a rule: "no questions after 8:00 PM."

On any subject, including the illegal dumping of 30 million pounds of contaminants in the Old City Reservoir, our St. Augustine MAYOR GEORGE GARDNER, City Commissioners and CITY MANAGER WILLIAM B. HARRISS never answer my questions, no matter what time of day (or night). As William F. Buckley, Jr. once said, "why does baloney reject the grinder?"

George Washington reportedly chopped down a cherry tree, told his father and said, "I cannot tell a lie." George Bush's staff has bragged about how it would defeat those of us in the "reality-based commuity" by manufacturing its own falsehoods.


Likewise, while disdaining "spin," MAYOR GARDNER was spinning last night. His "reformer" father and grandfather would not be proud.

MAYOR GEORGE GARDNER admitted to me on February 24 (as reported to City Commissioners and stated in my June 25, 2006 St. Augustine Record column (see below) that there was dumping going on in the Old City Reservoir, claiming it was "clean fill." Of course, as EPA's John Marler says, "there are no bedsprings in clean fill." Nor is there arsenic, thallium and vinyl chloride, or metal, tanks, toilets and the entire contents of the old illegal city landfill.

Mayor GEORGE GARDNER sent out an E-mail last night (after 8:00 PM), neither asking nor answering questions.


Instead, he issued a cry for help, which requires the intervention of the voters.

GARDNER is guilty of circulating junk E-mails under color of law, an instance of last-minute flummery and dupery.

As shown by the posts below since April, Mayor GEORGE GARDNER's falsehoods and misrepresentations about our City's alleged environmental crimes are, at best, facetious.

GEORGE GARDNER is a third-generation politician, scion of a Schenectady, New York political family who characterized himself as a "reformer."

ST. AUGUSTINE MAYOR GEORGE GARDNER's third-rate explanations of his misbegotten administration resemble Ron Ziegler's characterization of the Watergate Break-in as a
"Third Rate Burglary," one of many lies he later characterized as "inoperative."

Ululating about critics "bombard[ing] with a "litany of negative charges," Mayor GARDNER abused the word "litany," which those of us raised as Roman Catholics know to be prayerful.

First mocking the faith of a plurality of St. Augustinians by abusive use of the word "litany," MAYOR GEORGE GARDNER (who brags of attending 36 churches, see below) proceeded
to whine, stating "Any response simply gives the opponent a bully pulpit. And we wonder why more good citizens won't run for public office."

Get it?

Answering questions would be beneath MAYOR GARDNER. It would just give fuel to critics. Sounds Nixonian to me.

Then GARDNER moved on from whining, proceeding to prevarication, never discussing where the illegal dumping was, what was in it, who ordered, or what GARDNER knew and when he knew it or why he never got answers to questions and why he and other Commissioners voted an award to CITY MANAGER WILLIAM B. HARRISS in the midst of an active pending criminal investigation (see below).


While using the word "spin" to describe "my opponent" and his supporters, GARDNER was downright coy about the locus of the illegal dumping (the Old City Reservoir).

Instead, GARDNER focused on the source of the contaminants (being used for wetland mitigation to allow for the $70 million San Sebastian Inland Harbor public-private partnership).

In his after-8 too-late E-mail, St. Augustine MAYOR GARDNER stated, in haec verba: "Development of a 4-acre maritime salt-water marsh at the south end of Riberia Street, in cooperation with a student maritime program in our schools, came under investigation by both Federal and State Environmental Protection agencies as we had incorrectly proceeded under Water Management District guidelines. The project involved transfer of soils including portions of a former landfill. While we screened these soils for impurities, both agencies notified us more stringent procedures were required. Both agencies found no criminal intent and noted our city's cooperation in environmental auditing of our programs, increased staff training and material disposal."

Whee!

As Senator Daniel Inouye (D-Hawaii) said during Watergate, thinking himself off-microphone, "what a liar!"

ST. AUGUSTINE MAYOR GEORGE GARDNER is wrong in virtually everything he said. City employees were not trained in hazardous waste handling before being forced to handle enough contaminants to fill in six Olympic size swimming pools to a depth of six feet.

The City was told by SJRWMD not to dump.

GARDNER is wrong and deeply mistaken in stating that FDEP and EPA found "no criminal intent" in the City's dumping.

DEP and the State's Attorney's office confirm there is an active, pending criminal investigation of illegal dumping, commenced on February 27, 2006 when EPA and DEP investigators observed the illegal dumping without permits at the Old City Reservoir.

Mayor GARDNER promised "answers" on February 27 -- there is a list of 90 questions he has never answered.

Now the night before the election, Mayor Gardner falsely claims that the dumping has ben forgiven and that it was all a misunderstanding. In fact, DEP and the City are working on a consent decree, in which our City will be fined. Criminal prosecutions of individual wrongdoers remains a distinct possibility.

No such finding exists -- an active criminal investigation is in progress by the State's Attorney and FDEP and EPA investigators. In light of the new revelations in the recent St. Augustine Chronicle investigation, the St. Augustine Record's April 13, 2006 investigative report, the April 8 Collective Press article and the April 3 Out in the City column, GARDNER doth protest too much. The assertion that there was "no criminal intent" ignores the concept of "willful blindness" in environmental criminal law. See EPA's policy statement published in the Federal Register, "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. See also statement of Vice President Cheney about "willful blindness" in Elizabeth Bumiller & James Dao,"Cheney Says Peril of a Nuclear Iraq Justifies Attack," NY Times, August 26, 2002.

For $500, Akerman Senterfitt lawyer William Pence (or any other environmental lawyer worth their salt, including the daughter of City Commissioner SUSAN BURK) would likely have told our city to drop the oyster and leave the wharf, and not to dump anything anywhere at any time without a permit.

Our City apparently did not consult with this prestigious law firm, whose partner is shown below in a photo at the Menendez birthday several years ago.

Our City apparently did not trust the wisdom of three Professional Engineers on its payroll.

Instead, our City did what it did best -- lawbreaking in secret.

St. Augustine's Mayor and City Managers intentionally disobeyed the St. Johns River Water Management District written January 8, 2006 orders not to dump without a permit.

They did not apply for any Army Corps of Engineers permits.

They concealed their actions.

They misled investigators.

They refused to answer public questions.

They insulted those who asked public questions.

They changed the rules on speaking to City Commission to discourage public questions.

They continued dumping two (2) days after criminal investigators arrived on February 27, 2006, photographed illegally dumping on March 1, 2006.

MAYOR GARDNER and his City Commission colleagues unanimously voted to give CITY MANAGER WILLIAM B. HARRISS a heck-of-a-job award when they knew that the EPA/DEP environmental criminal investigation was pending.

This award to Mr. HARRISS reflects contempt for the environment, law enforcement and the public.

Worse, this award to Mr. HARRISS was a possible obstruction of justice discouraging City employees from telling the truth about HARRIS during an active pending criminal investigation.

City employees fear the retaliatory Mr. HARRISS. Giving an award told them to keep their mouths shut, just as insulting public questions did.

GARDNER admits that there is "rampant corruption" in City Hall (see below, quoting remarks less than a fortnight ago at the Salt Run Community Center).

Now GARDNER lies on election eve about his Administration's pollution of the Old City Reservoir. As Chief Justice Earl Warren wrote for the Supreme Court in Mesarosh v. United States, 352 U.S. 1, 14 (1956), this "poisoned the water in the reservoir." The function of the Department of Labor now must be "to see that the waters of justice are not polluted. Pollution having taken place here, the condition should be remedied at the earliest opportunity. " Id.


Under environmental criminal law, CITY MANAGER WILLIAM B. HARRISS, Mayor George Gardner and other city officials and contractors may be held individually liable (just as might be the case in alleged sexual harassment by the Mayor).

Under environmental criminal law and whistleblower law, the term "persons" embraces individual liability, e.g., for corporate executives for purposes of criminal liability for food and drug safety law violations. 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). See also, Joshua Goldberg, "Coming Soon to an OSHA Violation Near You: The Responsible Corporate Officer Doctrine," 18 Labor Lawyer No. 2, (Fall 2002) 263-289; Elizabeth R. Kollter Whittenbery, "Individual Liability for Sexual Harassment Under Federal Law," vol. 14 The Labor Lawyer No. 2 (Fall 1998), pp. 357-372.

Courts have repeatedly authorized individual liability for retaliators and harassers and managers who commit or tolerate it. See 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). Those responsible for retaliatory actions should be held liable. See, e.g., 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 generally, Elizabeth R. Kollter Whittenbery, "Individual Liability for Sexual Harassment Under Federal Law, vol. 14 The Labor Lawyer No. 2 (Fall 1998), pp. 357-372.

Organizational wrongdoers cannot escape in personam jurisdiction. See, e.g., United States v. The Rainbow Family, 695 F.Supp. 294 (E.D. Tex. 1988); United States v. Bonnano Organized Crime Family, 879 F.2d 20, 27 (2nd Cir. 1989).

The City of St. Augsustine, MAYOR GEORGE GARDNER, CITY MANAGER WILLIAM B. HARRIS & Co. are not above the law.

Mayor GARDNER, the flawed, crabbed, bigoted man who "doth protest too much," now claims to be the victim, rather than the victimizer.

GARDNER's polluted the Old City Reservoir, broken his promises and limited public debate. He has demeaned his office with pettiness.

Now there must be accountability, starting with preservation of evidence, for "the law is entitled to every [person's] evidence." United States v. Nixon, 418 U.S. 683 (1974).


The City of St. Augustine must clean up its act, clean up the illegal dump site and make available all of its records to the public on the Internet, just as Orlando and other cities do.

MAYOR GARDNER's material misrepresentations to the recipients of his E-mail reflects, at best, desperation and disrespect, as well as a deep-seated desire to ignore the facts. Like Bob Woodward's book, "State of Denial," the City of St. Augustine's public officials ignore empirical facts.

They glare, wrinkle their noses, insult, mock and avoid public questions about environmental issues. They are unjust environmental stewards who have let down the people of St. Augustine, Florida and the United States, for whom this wonderful city is held in trust. These embittered, unjust stewards "know not that they know not that they know not."

They remind me of Daniel Patrick Moynihan's bon mot, "everyone is entitled to their own opinion, but not their own facts."

Ron Suskind writes that the second President Bush Administration has bragged that it can create its own reality:
The aide said that guys like me were "in what we call the reality-based community," which he defined as people who "believe that solutions emerge from your judicious study of discernible reality." I nodded and murmured something about enlightenment principles and empiricism. He cut me off. "That's not the way the world really works anymore," he continued.
"We're an empire now, and when we act, we create our own reality. And while you're studying that reality—judiciously, as you will—we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do."
Ron Suskind, "Without A Doubt," New York Times Magazine (cover story) (October 17, 2004). Of course, Mayor Gardner, the putative former GANNETT journalist, told me he does not read the New York Times (and does not like to read the St. Augustine Record). Evidently, his attempt to use his newsletter to defend his regime is a last-ditch attempt at justifying his bad record to history.

Whether MAYOR GEORGE GARDNER's falsehood-laden newsletter was intended as spin, history, journalism, rhetoric or political theory, his after-8 newsletter fails -- a day late and not reality-based. GARDNER may soon be merely one of "history's actors," left to write his memorrs apologizing for illegal pollution, Sunshine violations and other crimes against the Nation's Oldest City. Say goodnight, George.