Termination of Public Works Employee Reveals Deeper Troubles
OURAY – When longtime public works employee Ed Witherspoon fought unsuccessfully to save his job at an appeal hearing before Ouray Mayor Pam Larson last month, it was partly because he had conducted blasting for the City of Ouray on an expired explosives permit.
Records from the Division of Oil and Public Safety of the Colorado Department of Labor and Employment confirm that this was the case, and that the city was reprimanded by state regulators over the matter, resulting in a settlement agreement and deactivation of the city’s explosives program.
According to OPS documentation, the Type 1 (individual) Explosives Permit held by Witherspoon and the Type II Explosives Permit held by the City of Ouray (which Witherspoon was responsible for maintaining) lapsed in September and December of 2012, and were not successfully renewed until July 2013. In the meantime, the state also deactivated the city’s Type III permit which allowed the city to legally store explosives in a magazine.
While the permits were suspended, the city continued to store explosives and, on one occasion (in January 2013), “used them unlawfully,” when Witherspoon, on an expired blaster’s license, used a small amount of explosives to release two aerators that had become frozen in a lagoon at the city’s wastewater treatment plant.
In response, OPS issued a formal Notice of Violation to the City of Ouray on Oct. 8, 2013, “for an individual using or possessing explosives without a valid Type 1 Explosives Permit, and for a Company [the City of Ouray] operating without a Type II Permit.”
The city was storing about 200 pounds of explosives, according to OPS officials, which is “standard for a small program.”
State regulations stipulate tight control of explosives through permits and technical applications for the storage, use and transport of explosives materials – no matter how small the amount, because “misuse could be fatal,” said OPS Public Safety Program Manager Greg Johnson.
When individuals or entities are found to be in violation of these state regs, OPS can levy fines up to $1,000 per violation for each day of the violation – which could have amounted to hundreds of thousands of dollars’ worth of fines for the City of Ouray.
Instead, the city entered into a settlement agreement with OPS following the Notice of Violation. As terms of the agreement, the city agreed to pay a reduced fine of $500, and to come back into compliance with state regulations by dismantling its explosives program.
Witherspoon’s and the city’s permits are now officially inactive, and the explosives are now in the possession of the Colorado Department of Transportation, according to Scott Narreau, Program Manager for OPS’s Explosives Program.
City Administrator Patrick Rondinelli signed the settlement agreement last November, and OPS Director Mahesh Albuquerque signed it on Feb. 12, seemingly laying the matter to rest.
Witherspoon acknowledged missing the deadlines to renew the two blasting licenses he was responsible for maintaining, and said that in retrospect it was a mistake to conduct the explosives job at the wastewater treatment plant while his permit renewal application was still pending.
“At that time I was not giving thought to the expired license, but that we had an issue and I needed to repair the issue the quickest way possible,” he testified at his appeal hearing. “Later it became apparent I should not have done that, but at the time we had a problem that needed to get fixed. It’s a wastewater treatment plant; we can’t shut it down. We need to keep it running.”
Witherspoon also argued that the Ouray Public Works Director Dennis Erickson was partially to blame for the Notice of Violation that OPS issued to the city. Erickson took over as Public Works Director in October 2012, in the midst of Witherspoon’s efforts to renew his and the city’s licenses. Witherspoon testified that he didn’t bring Erickson up to date on the languishing permit renewal process until late April 2013.
At that point, “[Erickson] wanted to be part of the blasting program,” Witherspoon said. “The delay was partially his fault, because he took over the renewal process partway through and didn’t see it through to completion. This is what escalated the situation from a suspension to a violation.
“He did not take responsibility for his part of the process,” Witherspoon maintained. “I believe there was no culpability for him at all; it was a shared situation.”
Witherspoon held an explosives permit for the City of Ouray for nine years, first acquired while working under former Public Works Director Dan Fossey, who knew that Witherspoon had explosives experience from previous work in local mines, and wanted him onboard for blasting projects for the city.
It is unusual for a municipality to have its own in-house blasting program, said Narreau. State regulations require individuals with explosives permits to undergo a renewal process that includes an exam, every three years.
Email correspondence between Witherspoon and OPS officials shows the two parties communicated for months about the most recent round of license renewals, beginning with a series of reminders from OPS to Witherspoon in the summer of 2012 that Witherspoon’s Type I license was about to expire. Witherspoon submitted his renewal application just days before the deadline in late September 2012.
OPS then worked with Witherspoon to complete the process of passing the blaster’s exam. (He had to take it twice, which is not unusual, according to OPS’s Narreau.) The process was further delayed as OPS attempted to obtain missing information in the City’s Type II renewal application, including a PUC “Hazardous Materials” permit number.
Witherspoon apologized to OPS for delays several times throughout the correspondence, at one point describing the problem as “too many shovels in the hole.”
Erickson, meanwhile, testified that his “first awareness [of the problem with the city’s explosives permits] was when the Notice of Violation occurred on Oct. 11, 2013. That’s when I started my investigation.”
MORE PERMITTING WOES
While the lapsed blasting licenses appear to have been at the root of Witherspoon’s termination, other problems were also raised at Witherspoon’s appeal hearing last month – among them, Witherspoon’s alleged failure to comply with certain Colorado Department of Health and Environment regulations.
As the certified operator of the city’s wastewater treatment plant, Witherspoon was responsible for collecting effluent samples and submitting monthly Discharge Monitoring Reports to CDPHE. The state agency’s records show that five out of the last 12 of Ouray’ monthly Discharge Monitoring Reports were categorized as “significantly late.”
The Division issued several compliance advisories for the city’s failure to submit the required reports, culminating in a Notice of Significant Non-Compliance for the September monitoring period, issued on Jan. 9, 2014.
The city resolved the matter before formal enforcement action was warranted, with Erickson announcing to CDPHE in January that he would be taking over the compliance program.
Witherspoon discussed the matter at length during his appeal hearing last month, alleging that Erickson had deliberately withheld the documentation Witherspoon needed to complete timely filings. Erickson retorted that Witherspoon “was not telling the truth.”
The antagonistic relationship between the two men was in stark contrast to Witherspoon’s relationship with former boss Dan Fossey, of which he said, “We worked together as a team to make sure we had all our areas covered. We monitored each other as a team to keep each other current.”
Witherspoon’s attorney argued that there was “a breakdown in management supervision that comes from Mr. Erickson and the city administration,” and “a vacuum of leadership … with the city administration.”
Rondinelli and Erickson, meanwhile, pointed to “patterns of inefficiency” and “consistent missed deadlines” that could potentially impact public health, safety and welfare, as compelling arguments for dismissing Witherspoon.
After learning earlier this month that Mayor Larson had upheld Erickson’s and Rondinelli’s recommendations to fire him, Witherspoon struggled to maintain equanimity. “On the whole, I think Pam has made the best decision for the city, but I don’t believe she made the right decision for me,” Witherspoon said.
CHANGING THE CULTURE?
Altogether, four workers have either resigned or been fired from the Ouray Public Works Department over the past year and a half – Fossey, Witherspoon, Paul Castle and Rod Hodges.
Hodges, a mechanic, started working for the City of Ouray about 15 years ago – just after Witherspoon came on board. For years, he was responsible for maintaining the city’s heavy equipment and other city vehicles, as well as the pump at the Hot Springs Pool and the ski tow at Lee’s Ski Hill.
Hodges resigned in September, in part from frustration at what he described as an increasingly negative work environment where several of his primary duties were recently stripped away. He felt that he was under increasing scrutiny after Erickson came on board in 2012, and feared for his future with the department, said Hodges, who now works for a food processing company in Denver.
City officials say they cannot comment on personnel matters. But in Rondinelli’s recently released 2014 performance evaluation, the Ouray City Council acknowledged that Rondinelli “led the change in the culture of the Public Works Department.”
Council has set goals for Rondinelli to foster better communication “throughout and between all levels of the city organization “with a focus on creating an environment in which thoughts and opinions can flow more freely and consistent and constructive communication is valued”; and to “work with Department Heads to develop paths to cultivate their leadership within their departments” including “changing the culture in some departments, having higher expectations for staff and improved training.”
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