The Coastal Post - January 2000

Smoke Screen, Cover Up, And Hush Money
As Scandal Unravels At Civic Center

By Jim Scanlon

It came as no surprise after nearly three hours of impassioned testimony, overwhelmingly supporting former Environmental Health Chief Ed Stewart, that the Board of Supervisors voted 5-0 to accept a County Administrator's report denying Stewards charges. It was truly "Kafkaesque," with the accused recommending that their accusers' charges against them were unfounded and the Board, with two of the accused voting, agreeing.

The hearing, limited as it was with crucial information on alleged retaliation, seemed to leave the public mystified, unsatisfied and suspicious that the hearing was a self serving "smoke screen." Essentially, Stewart, a Public Health expert said certain actions constitute a danger to public health and administrators and supervisors determined that there was no danger to public health-and that was it!

Probably the most impressive speaker was Dr. Ted Hyatt, County Health Officer for many years before retiring. He said, "This is the worst mismanagement I ever saw in the county... You don't reach down into an agency [and make changes]." There was no mention of Hyatt's remarks in the Independent Journal or the Point Reyes Light.

The current Health Officer, Fred Schwartz M.D. was present at the hearing and when contacted several days later said he did not wish to make any comment about the hearing on short notice, but said he and Nancy Rubin, the head of Health and Human Resources, were looking closely into how their department interfaces with Environmental Health and its effect on public health.

The Board accepted a report by an assistant to the County Administrator which narrowly defined the charge. It found that the transfer of Stewart's septic system inspector Dave Masagno by Stewart's boss Alex Hinds, and his replacement with the County's Consumer Protection Specialist, did not represent gross mismanagement, abuse of power, or endangered public health.

Supervisor Annette Rose repeated over and over that Stewart's charge had nothing to do with he and Masagno being summarily placed on leave pending dismissal. Both men had been given five minutes to clear out their desks, turn in their keys and pagers and be escorted out of the Frank Lloyd Wright Building last September. They have been on paid leave ever since. It is unclear what administrative actions have been taken, or will be taken, or when.

Essentially there is no "next step" to this affair, so the action by the Board leaves the situation shrouded in mystery.

The Coastal Post received information that the County Administration made serious errors in the first stage of firing both men and wanted to redo the hearing. It was also rumored that administrators "want this thing to go away" and have offered a financial settlement to both men. It seems clear that Stewart is unyielding and intends to fight his threatened dismissal with a suit, if necessary, for wrongful termination.

Masagno, however, who was reported depressed and distraught over the way he was treated and the effect this had on his obligations to his young family, found another job and is now anxious to get on with his life. Reportedly, he may be willing to reach some kind of financial settlement. Both men are represented by the same attorney who is said to be well known for successfully representing clients in wrongful termination suits. He has not made any public statement so far.

The Coastal Post could not substantiate these rumors, but if there is any substance to them, this situation could prove costly to the County. Both men are still on paid leave, leaving Environment Health understaffed with no direct supervisor for approximately 20 workers. Work load has been shifted to paid consultants who do not come cheaply. There is no way of estimating the effects this is having on staff morale inside and outside Environmental Health. Settlement costs, if any, could be substantial and probably secret. There is no telling where this will end and what the cost may eventually be, or if the costs will be revealed.

Separate from the "Whistleblower" action, Stewart filed grievances naming County Administrator Mark Riesenfeld and the County Counsel, Patrick Faulkner. He charged that the transfer was politically motivated by two sitting Supervisors. He mentioned Fourth District Supervisor Steve Kinsey several times at the hearing. It was reported this past fall in the Gannett Marin Independent Journal and the Point Reyes Light that Kinsey had continually interfered in his department and had intruded into Masagno's decisions to the point of Kinsey often sitting at Masagno's desk.

Stewart's written "Whistleblower" complaint charges that Hinds, " improperly asked...[him]... to waive permit fees on occasion... [without citing] ...any legal authority for his request."

The Administrator's report answered this charge as follows: "Regarding the complaint that Mr. Hinds failed to insist that elected officials refrain from inquiring about alternative fees or the status of projects, even if true, does not constitute gross mismanagement. Elected officials have long believed it their duty to represent their constituents and facilitate the resolution of problems and issue Marin County resident may have."

The questions naturally arise as to which representatives, which constituents, on what projects, how this was done, how often and what were the consequences? In other words specifics. The above sounds suspiciously like favoritism, which, if substantiated, might constitute not "gross mismanagement," but corruption which is defined by the California Criminal Code.

It seem unlikely the "Whistleblower's Resolution," which prohibits retaliation against the "Whistleblower," will ever be used again, since the reasons for Stewart and Masagno's dismissal were never made public, and were never revealed or discussed. You have to accept the word of the administrators that the dismissals and the hostile way they were carried out had nothing to do with the grievances filed against these administrators. Supervisors Kinsey and Kress (who had also been accused of interference) did not recuse themselves from voting, and, quite naturally did not question a report that did not implicate them in any wrong doing.

During Stewart's presentation he urged the Supervisors to investigate his charges and a number of dangerous situations in West Marin, including the use of wells in Bolinas and Hog Island, illegal land fills, two Tomales Bay Dairies, the West Point Inn, the outstanding "Cease and Desist Order" against the Lagunitas School, the French Ranch Development, Skywalker Ranch and the operations of Bed & Breakfast establishments.

The treatment of this issue by the press has been uneven and has left much unsaid. On December 12, two days before the hearing, the Gannett Corporation's Marin Independent Journal printed a critical piece by Robert W Plath, a public spirited attorney from Mill Valley with international connections to Humanitarian Organizations. "When whistleblowers are mistreated, we should cry 'foul', Plath wrote. "What had these two men possibly done to deserve almost Gestapo-like tactics?" Plath called for public concern and participation at the hearing and like any rational human being, he connected the suspensions and the way they were carried out, to the resistance of Stewart and Masagno to the large volume septic systems Supervisor Kinsey has persistently promoted.

The IJ's report of the hearing was well done, except that no mention was made of Dr. Hyatt's comments. On December 22, the IJ printed an article by Steve Kinsey under "Marin Voice" answering Plath. "His attack on me is 'pure sewage'," he wrote. Kinsey called Plath's article "a murky alphabet soup of charges involving whistleblowers, public health officials, 'Gestapo-like tactics' and evil developers..." Kinsey said he recognized the basis for Plath's article when he recognized that the people "supporting Stewart" at the hearing were, "nearly to a person foes of the French Ranch Development."

Kinsey rightly wrote that large volume waste treatment systems are not new to West Marin and mentioned that Bolinas has had one for twenty years, and that Lucas Films and Spirit Rock Meditation Center use the same technology as that planned for French Ranch. He left out the Lagunitas school which has a new, large volume treatment system in use, although it is still has not completed or inspected as required by County Code. It is operating despite a "Cease and Desist Order" issued by Masagno in February 1999.

The recirculating sand filter systems used by Lucas Films and Spirit Rock are reportedly causing serious nitrate pollution of ground water as are others at Stinson Beach. The system used in Bolinas, a sophisticated pond system, is costly to operate, with estimates given to the Coastal Post in 1997 at $80,000 per year. The system was also refurbished a few yeas ago at a cost of over one million dollars.

On December 23, the IJ printed a strange "lets all be friends and get along in peace" type editorial which says nice things about everyone involved. It does not mention Stewart's treatment on his suspension and pending dismissal. Balancing the nice things, it seems more nice things are said about Stewart than Kinsey or Hinds. It looks like the IJ editors are coding a message to everyone involved to drop the matter and settle it so it goes away. It implies that nothing really went wrong and everything is OK.

Regardless, it seems clear that this matter is not going to fade away. Stewart is obviously hurt and angry at his treatment and Kinsey is up for re-election in March. He obviously has a deep and sincere belief in, and attachment to, large volume septic systems and sewage pond systems for West Marin. In fact, in his closing remarks at the Stewart Hearing, after affirming his dedication to public health and asserting he had never endangered it, he said that he wanted a Department of Environmental Health that was open to new technology.

There doesn't seem to be any room for compromise. The biggest mystery is what the Marin Civil Grand Jury is doing. It has been active in its investigation, the scope of which is unknown to outsiders-except that it is examining boxes of files from the Lagunitas School District which has a joint sewage system with the French Ranch.

These issues will certainly drag on-and may blow up at some point down the road.

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