TOSHA Safety complaint of Summer 2016 lead to 2nd complaint of retaliation against former city employee

After initially refusing to release documents connected to two Tennessee Occupational Safety and Health Administration (TOSHA) complaints filed against the Crossville Water Resources Department following action last week by the city council to approve a settlement on one complaint, some of the documents have now been provided.

The complaints, from the summer of 2016 were made to TOSHA by a then-employee of the Crossville Water Resources Department. The employee was fired shortly after making the complaints about safety concerns, first to the water department supervisors and then to TOSHA and then the question of whether the firing could be considered retaliation for the safety complaint is the second more serious complaint that is now under consideration by the city council for a settlement. The identity of the employee is being protected and has been redacted from the documents released by the city.

As city attorney Will Ridley wrote in his letter releasing the complaint copies but not the letter to the city from the Tennessee Attorney General, “As you are aware, the City of Crossville has been threatened with a potential lawsuit to which we maintain we have no liability. I am currently working to settle this matter without the unnecessary expense of a trial.”

It is unclear what the timeline of a possible settlement with the former employee might be.

The TOSHA complaints in question filed by the employee lead to the city's notification by letter dated August 24, 2016, about water leaking inside a 480-volt cabinet of the Miox equipment used to treat water without chlorine gas. The second complaint was about a caustic soda and sodium hypochlorite line leaking. The letter states the city should investigate and make any necessary corrections within 5 days.

Dried brine indicating leak in Miox equipment

The following day another TOSHA letter was sent by certified mail to Jerry Kerley about the second complaint and investigation into possible discriminatory employment practices in violation of the TOSHA Act alleging that the employee was terminated after filing safety concerns.

A letter of response to the more serious charge of discriminatory practice was sent by attorney Ridley September 8, 2016, stating that the first notice about the safety complaint was not received until after the employee was terminated. In addition, Ridley's letter states in a separation meeting with Crossville Human Resources Director Leah Crockett on July 26, 2016, Crockett said the employee stated she had complained to OSHA but had not notified anyone at the city of the safety situation. Ridley's also wrote that the employee told Crockett that a discrimination complaint had been filed with TOSHA and an attorney had been hired.

In response to the safety complaint, Crossville safety director Kevin Dean said in a letter to TOSHA that in the first complaint no hazard existed as the cabinet was designed with a drain and the electrical equipment in the cabinet was in a sealed compartment. The letter further states that the former employee had informed the supervisor about the issue and a call was made to a certified Miox technician leading to a part being replaced.

Dried salt from brine in the

Miox cabinet

Dried brine on wires in the

Miox electrical cabinet

The second part of the safety complaint on leaking pipes took several days to locate an intermittent overhead leak in a bleach line that occurred every three hours or so leading to a repair. The repair was reportedly made prior to the TOSHA notification. A repair was also made to a caustic soda (lye) line from an “internal notification” where a “crusting” was found at a coupling connection and repairs were made.

Caustic soda (lye) leak

Shortly after the letter concerning the safety complaints was received by TOSHA, a notification that TOSHA would close the file on the safety complaint was received however, the discrimination complaint remains open and is what the city is hoping to settle.

That second investigation was done by TOSHA compliance officer John Houghton and a letter dated October 12, 2016, that said he was classifying the case as a merit case saying, “Which means I will forward the case to the Attorney General's office.” Houghton continued, “This does not mean the City is guilty of anything, just that I believe more than likely it was an act of discrimination and the AG's office would investigate further.”

The letter also offers the settlement the city is back to considering with an agreement from both sides agreeing not to talk about the case and neither side admitting guilt. In addition, the agreement would pay the former employee for 11 weeks of work at the $7170.24.  This is the same settlement the city council approved in a special called meeting in November 2017.

Also attached to the documents are interviews with water department Maintenance supervisor Brian Lowe and lab manager Joe Kerley. Lowe's statement says that he had talked to the employee two or three times about wearing flip-flops and shorts to work, a violation of the dress code. Lowe also said he did not feel the employee put other employees in danger nor was she the type to sabotage anything at the facility.

An interview with Joe Kerley notes that the employee did not notify him about safety issues but did text maintenance supervisor Brian Lowe. Kerley said he had talked to the employee several times about dress code violations and did not remember taking corrective action against other employees for the same thing.

Kerley also stated that the employee was putting other employees in danger by not reporting safety hazards and he said his fear of possible sabotage was to take photos of problems and send them to the attorney.   

Council approves TOSHA Settlement involving former employee-Attorney maintains documents not public.

Crossville city council approved a settlement over an as yet unreleased Tennessee Occupational Health and Safety Administration (TOSHA) complaint filed by a former city employee.

Even though there is no provision for a document protection under the “attorney-client privilege” as has been put forth by Crossville city attorney Will Ridley, the documents involved have still not been released.

According to Ridley, who said he had spoken to each council member privately in place of holding a closed executive session last week, he had received a letter from the Tennessee Attorney General on November 1 that gave the city a deadline of November 6 to respond but the city was given an extension to be able to meet.

City Attorney Will Ridley

“We've tried to keep this confidential for two reasons,” Ridley told the council, “One is attorney-client privilege at this point and two the former employee that is the subject of this, per the order of the attorney general, we're trying to protect that person.”

The complaint in question was made to TOSHA several months ago and the state agency did an investigation of the complaint. Ridley said the city tried to enter into an agreement at that time but the former employee wouldn't sign a release. Now that the Attorney General's office has taken up the case, and told the city if they will enter into a settlement agreement they won't sue the city, the city won't have to admit any guilt or wrongdoing toward the employee, and agree to pay the employee $7,170.24 in back pay less standard deductions.

Ridley reminded the council that the city's deductible is $5000 and he had spoken to Tennessee Municipal League the insurance is through and their attorney recommended the city make the settlement. The total cost to the city would be that $5000.

In addition, the city is required to post TOSHA safety posters. The employee's file will also be purged of any documents related to their termination and that no bad recommendations are given.

Finally, Ridley said, “The Attorney General's office will require the former employee to sign a release of any and all claims she has against the city arising out of this complaint.”

Councilman J. H. Graham moved to accept the settlement and that was supported by Councilman Danny Wyatt. The motion was unanimously approved.

We requested copies of the Original TOSHA complaint as well as the Attorney General's letter to the city and as given the following response from Ridley: "Both are attorney client privilege and neither should be released. Neither are a document of record in any court and have not became (sic) a public record. The only reason Leah has a copy is to help work with TML and our insurance attorneys."

While TOSHA can protect the identity of a complainant or whistle-blower, typically the name would be redacted from a document and the rest of the information released.  

Ridley said privately after the meeting the documents would eventually become public, but under the Tennessee Open Records Act law, the following items are listed as confidential records that can be protected according to the Municipal Technical Advisory Service. There is nothing about “attorney-client privilege.

In general, city employees’ personnel records and most other city documents are subject to public inspection under the Tennessee Public Records Act. Some exceptions that affect local government are:

• Employee assistance program records that apply to counseling or referrals for mental health, marriage, alcoholism, and similar personal problems may remain confidential if they are maintained separately from personnel records. T.C.A. § 10-7-504(d).
• Personal cell phone and home phone numbers, bank account information, Social Security numbers, and driver’s license information (except when driving is part of or incidental to the employee’s job), emergency contact information, residential street addresses and personal, non-government issued email addresses of applicants, current and former employees are confidential; the same information for the employees’ immediate family members and household members is confidential. T.C.A. § 10-7-504 (f)(1).
• City hospital medical records and records of patients receiving medical treatment paid for by a municipality are confidential. T.C.A. § 10-7-504(a)(1). (The Americans with Disabilities Act requires that all employee medical records be confidential and kept in a separate file.)
• Library records identifying a person who requested or obtained specific materials are not open to the public. T.C.A. § 10-8-102.
• Financial statements filed by cities as evidence of their ability to pay workers’ compensation claims are confidential. T.C.A. § 50-6-405(b)(3).
• Certain "books, records, and other materials in the possession of the Office of the Attorney General and Reporter which relate to any pending or contemplated legal or administrative proceeding in which the Office of the Attorney General and Reporter may be involved" are not open to public inspection. T.C.A. § 10-7-504(a)(5).
• All files, reports, records, and papers relative to child abuse investigations are confidential. T.C.A. § 37-1-612.
• The Tennessee Rules of Criminal Procedure contains a section that "does not authorize the discovery or inspection of reports, memoranda, or other internal state documents made by the district attorney general or other state agents or law enforcement officers in connection with the investigation or prosecution of the case or of statements made by state witnesses or prospective state witnesses" (Tenn. R. Crim. P. 16(a)(2)). This rule is an exception to the rule of discovery, which requires the state to allow a "defendant to inspect and copy or photograph any relevant written or recorded" statements, records, objects, etc., that are material to the defense’s preparation (Tenn. R. Crim. P. 16(a)(1)). [1]
• Arnold v. City of Chattanooga, 19 S.W.3d 779 (Tenn. Ct. App. 2000) (permission to appeal denied June 19, 2000) holds that a city attorney’s work product prepared in anticipation of litigation or in preparation for trial is confidential and is not subject to disclosure under the Public Records Act.
• Unpublished phone numbers possessed by emergency communications districts are confidential until there is a contract to the contrary between the telephone customer and the service provider, T.C.A. § 10-7-504(e).
• Information about law enforcement officers, firefighters, emergency medical technicians, correction officers, dispatchers and paramedics who seek help for job-related critical incidents through group counseling sessions led by mental health professionals is privileged and is not subject to disclosure unless the privilege is waived. This includes all memoranda, work notes, work products, case files, and related communication. T.C.A. § 10-7-504(a) (13)(A).
• Certain taxpayer information, returns, reports, and audits are confidential. T.C.A. § 67-2-108, T.C.A. § 67-4-722, T.C.A. § 67-5-402, T.C.A. § 67-1-1702.
• The identity of an informant who provides information resulting in an eviction for violation of drug laws or for prostitution is confidential. T.C.A. § 66-7-107.
• Home and work telephone numbers, addresses, social security numbers, and any other information that could be used to locate an individual who has a protection or restraining order are not (utility) and may not be (other governmental entities) open to the public. Such an individual may request this protection and present a copy of the order to the record keeper of the municipality or utility. T.C.A. § 10-7-504(a)(15) and T.C.A. § 10-7-504(a)(16).
• Any information pertaining to the location of a domestic violence center or rape crisis center is confidential when the director requests such in writing. T.C.A. § 10-7-504(a)(17).
• Security codes, plans, passwords, combinations, and computer programs used to protect electronic information and government property are confidential. T.C.A. § 10-7-504.
• Filing documents required in order of protection cases, except forms required by the courts, are confidential but may be transmitted to the TBI, emergency response agency, or law enforcement agency. T.C.A. § 10-7-504(a)(16).
• Records that would allow a person to identify areas of vulnerability of a utility service provider or that would permit unlawful disruption of utility service are confidential. Documents relative to costs of utility property or its protection are not confidential, but confidential information must be redacted when the record is made public. This provision does not limit access to these records by other government agencies performing official functions nor does it preclude any governmental agency from allowing public access to these records in performing official functions. T.C.A. § 10-7-504(a)(21).
• Contingency plans for responding to terrorist acts are confidential. T.C.A. § 10-7-504(a)(21).
• Credit card numbers, social security numbers, tax identification numbers, financial institution account numbers, burglar alarm codes, security codes, consumer-specific energy and water usage data except for aggregate monthly billing information, and access codes of utilities are confidential. This information must be redacted when possible when the rest of the record is made public. The requester must pay the costs of redaction. T.C.A. § 10-7-504(a)(20).
• Photographs and recordings of juveniles by law enforcement officers are confidential. T.C.A. §§ 37-1-154 and 37-1-155.
• Financial records filed for income verification under the local option property tax freeze are confidential. T.C.A. § 67-5-705.
• Competitive sealed proposals are confidential until the intent to award is announced. Then the proposals will be open to public inspection. T.C.A. § 12-3-1207.
• Records addressing marketing strategies and strategic plans of public hospitals are confidential until seven days before the strategies and plans are adopted. T.C.A. § 68-11-238.

City attorney refuses to release documents concerning TOSHA complaint on Tuesday Special Called agenda

We have requested copies of documents involved in a Tennessee Occupational Health and Safety Administration complaint that comes before the Crossville city council Tuesday, November 7 during a special called meeting at 5:00 PM.  According to information released with the agenda, the Tennessee Attorney General has sent complaint concerning the matter that was initially presented by TOSHA previously.  

Crossville city attorney

Will Ridley

The response from the city attorney Will Ridley concerning the media request is as follow:

"Both are attorney client privilege and neither should be released. Neither are a document of record in any court and have not became (sic) a public record. The only reason Leah has a copy is to help work with TML and our insurance attorneys."

Multiple sources say the original TOSHA complaint concerned the water resources department.

An executive session was originally announced for last Friday but later canceled and the item moved to the Tuesday called meeting agenda.  

Crossville City Council Sets Special Called Meeting Tuesday November 7 on Employee Health Insurance.

UPDATED: A new item has been added to the called meeting agenda "discussion and action on a TOSHA Complaint." TOSHA is Tennessee Occupational Safety and Health Administration and the matter was originally set for a closed executive session on Friday that was later canceled and the item moved to the upcoming called meeting agenda.  City attorney Will Ridley will present a complaint from the Tennessee Attorney General for direction from the council.  No further information on the matter has been released at this time.

The Crossville city council will hold a special called meeting Tuesday, November 7 at 5 PM immediately before the council's regular monthly work session.

While several items are on the agenda, the main reason for the called meeting is to consider a recommendation from the city manager and staff on changes to the city employees health insurance. The city has been looking at some possible ways to save money on health insurance provided to city employees without causing financial impacts for the employees.

Crossville City Hall

Council had looked at a possible program offered by the Tennessee Municipal League of self-insuring but the time to evaluate that program has been inadequate.

After reviewing council comments from a recent work session and looking at options, the city is proposing a program that is expected to save the city some $43,425 in health insurance costs and puts a program in place to assist employees with their deductibles. The program helps fund a flex-spending plan for employees by matching the funds, up to $500 that the employee puts in their account.

An employee that puts in $200 pretax and the city matches the $200 but the cost to the city is only $184.70 because of the reduction in matching FICA and Medicare deductions.

The goals of the program, according to information with the agenda item are: 1) to save the City and therefore the taxpayers’ money. 2) to help the employees with their health care deductible. 3) to encourage the employees to consider their health care needs and make use of available tools provided by the City to manage those needs and costs.

The agenda information concludes saying, “If the Council wishes to fully evaluate the costs and potential savings of going to the self-insurance route, staff recommends going out for bid in June of 2018 so that you have the time to evaluate the option and will be able to compare apples to apples on proposals.”

The remaining items are under a consent agenda and include third and final reading of the budget ordinance on depot management, council order of business, Homestead Tower sewer line extension and telecommunications code. The second reading of a budget amendment for the purchase of fire trucks is also up for consideration.