Tuesday, March 27, 2012

DAVID & GOLIATH (or RABID DOG) – By Melody Lucas

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Regarding the Settlement involving Melody Lucas vs Darke County.
David heard Goliath shouting his daily defiance and he saw the great fear stirred within the men of Israel.

Everyone was afraid of Goliath. He seemed invincible. Not even King Saul, the tallest man in Israel, had stepped out to fight.

They knew the sides of the valley were very steep and whoever made the first move would have a strong disadvantage and probably suffer great loss.

Against others warnings, David volunteered to fight Goliath and the giant cursed at him, hurling threats and insults. He chose not to wear the King's armor because it felt cumbersome and unfamiliar. David was comfortable with his simple slingshot, a weapon he was skilled at using.

When the giant criticized, insulted and threatened, David didn't stop or even waver. Everyone else cowered in fear, but David ran to the battle. He knew that action needed to be taken, so he did the right thing in spite of discouraging insults and fearful threats.
What started out as a David and Goliath quest based on principles has me wondering if instead I have simply become a rabid dog. As I watch the fallout from my recent settlement agreement, it is very difficult, in fact impossible, for me to move on with life without at least debunking the continuation of misinformation and contextual lies. Understanding that some people would love nothing better than to leave this all behind, I feel a duty to lay it all out for the public and let them decide if this is the leadership we want in our county. Weeks following the publication of the settlement, the public is still forced to read between the lines, and the ongoing deceit from the Commissioners’ office clearly indicates that no lessons have been learned during this process. When pressed for information the Commissioners continue to add insult to injury. The lack of accountability and the eagerness of the public to move on only affirms what I came to realize over the almost two and one half years; there is no accountability, politics are not in the best interest of the public, and the majority will not rise up to do the right thing (whether within the Commissioners office or in the public at large). What happened to the times when principles mattered, accountability and consequences were required, and trust and integrity were of paramount importance.

I suppose it was silly of me to think, that I, as a public servant, could better serve the public by attempting to do the right thing, to try to stand up with hope of bettering the public servants leadership. Based on my experience it is reasonable to assume that either the system will never be challenged again, or this type of situation will recur/continue leaving considerable future risk for the county.

While we sit and wonder over the $3,000 dollar trash pickup on Broadway, or the fact that the deputies have not received pay increases in years, or what will happen with 911 and dispatch, our county seat continues to waste needed tax dollars in a self serving, irresponsible manner. They were not able or willing to take a step back, take a deep breath, and admit their errors. Instead they continue to stand in defiance of the law, county policy, and the public.

I started this based on principle, because to me they still matter. To me if I could effect change in this small and rural political climate, maybe, just maybe, it could became systemic. Maybe we can make a difference; maybe people can have an impact on the political wrongs that they see around them; in the waste and the misuse of public resources. If this is happening here in “little ole Darke County” imagine how big it has become as you go up the food chain.

That being said, the following is my disclosure of events leading up to the settlement, and then I will following it up with actions and activities post-settlement that has turned me into a rabid dog.

The crux of my case:

  • In August of 2009, I was involved in whistleblower activities involving the theft of public funds and the abuse of county resources. Verbal reports were made to the Commissioners on August 17th and August 24th.
  • On September 2, 2009, because the Commissioners had not reached out to gather more details on the situation, an Informal Complaint was made in accordance with the Complaint Procedures found in Chapter 9 of the Darke County Personnel Policy Manual. This complaint was done in person at the Commissioners Office. I explained to them that this was not a one time event and reminded them that the same issues had been reported in 2001. I informed them that if they didn’t conduct a comprehensive investigation, they would not be doing their due diligence. I informed them that this was an ongoing prosecutable offense. They ask me how I knew it was prosecutable and I stated because it is theft of public funds and abuse of resources as stated in the Ohio Revised Code (ORC).
  • On September 2, 2009, former EMA Director was given 15 day suspension.
  • On September 3, 2009, a news release quotes Mike Rhoades as saying this was an “unfortunate mistake” and the first offense.
  • On September 3, 2009, I reminded Diane Delaplane that this was not a one time event, and an investigation should be conducted.
  • I kept checking daily with the SO and asked if they had called – to which they replied no.
  • They began speaking badly of me (lots of things, by several people).
  • On September 4, 2009, I inquired with Ms. Delaplane about an investigation; I was informed they were not going to do an investigation, and that it had been said that I/we were just girls behaving badly and that I/we were playing her (this is where they said “breach of trust” occurred). I assured her that was not the case and that an investigation was warranted. To which she relied, they do not want to go that far/take it that far. I asked about the County Home – she informed me that was not reported/investigated either.
  • More “bad things” were said about me, specifically about my character.
  • In accordance with the County Complaint procedure, if an employee’s informal complaint is not resolved within 5 working days, a written complaint should be filed. During this 5 day period, the Commissions did not conduct a comprehensive investigation nor did they request an investigation with the Sherriff’s Office (as required by law).
  • On September 6, 2009, I decided to implement the use of County Policy for Employee Protection for reporting Violation of State, Local or Federal Law (Section 3.10) and ORC 124.341 Violation or Misuse - Whistleblower Protection, and wrote a formal complaint (a seven page document).
  • On September 8, 2009, in accordance with County Policy and the Whistleblower Protection Act, I submitted my formal complaint to the Commissioners and forced an investigation by also submitting my formal complaint by “carbon copy” to the Prosecuting Attorney - and then they were “really mad at me for using their policy against them” (to quote another county employee).
  • Following receipt of the formal complaint, the PA sent a letter to the Darke County Sheriff’s Office (dated September 9, 2009) requesting an investigation.
  • As part of the investigation, the Commissioners were interviewed. During the interview with the Sheriff’s Office, the Commissioners’ indicated they (the Commissioners) were not pleased with us and inferred we might be as bad, something along the lines of “one bad apple spoiled the whole bunch” (another county employee), and thought that maybe I/we should be investigated as well.
  • During the interview, the Sheriff informed them of their duty/requirement to report such activity, and inquired about the County Home incident as well.
  • September 11, 2009, the former Director was terminated/resigned from the position.
  • The former Director then filed for, and was granted, unemployment benefits
  • It became very uncomfortable and non-verbal’s told a story of distaste.
  • Then later, because it was perceived that they were “really mad at me” (and another EMA employee), disregarded County (public) Policy, and failed to promote one of the two objectively more qualified employees into the Director position, an Appeal was filed with the State Personnel Board of Review, for the violation of the Whistleblower Protection Act.

Minus some times, dates, locations, and significant detail, this is a straight forward and totally factual chain of events leading up to the Whistleblower claim. Much of it is documented with written and/or audio proof.
The Appeal Process:

During the appeal process, I was never able to present all my evidence because we never made it to the “Hearing”. More than a year was spent in the courts fighting over the meaning of the word “entitlement”and “subject matter jurisdiction”. This was important because the Whistleblower Statute prohibits retaliation to include denying a person a promotion that one would otherwise receive (entitled). The State Presonnel Board of Reivew initially denied the appeal based on lack of subject matter jurisdiction. An appeal was filed with the Common pleas Court who found the SPBR ruled in error, and remanded the case back to the SPBR for hearing. With the the entitlement and jurisdiction issues resolved, on December 1, 2011, a pre-hearing was scheduled/conducted. At that time, and for the first time since the inital filing, some evidence was presented which gave credence to my case. At that point the Administrative Law Judge (ALJ) asked if Mr. Lee had any intentions of leaving his position, to which the answer was no. Based on that information, the ALJ asked if the Commissioners’ Attorney and mine if we would be willing to entertain a settlement agreement, to which their counsel and my counsel responded yes (two years plus later and I was finally able to demonstrate I had a case).

We got nowhere in reaching an agreement on our own (I know, that’s hard to believe), so on January 18, 2012, my attorney requested mediation. Mediation was scheduled for January 30, 2012. During mediation I was able to speak, for the first time, to a Commissioner (Mike Rhoades). After two and one quarter years I was finally able to say a few words about how I was treated, and how inappropriate I felt their statements and actions were following whistleblower activities.

The settlement discussions continued to February 29, 2012 (total discussion time to reach settlement- 12/1/11 to 2/29/12), when the ‘Draft Settlement Agreement’ was reviewed by me and sent back to my attorney at 5:00 PM. This time may be of importance to many in the public who are trying to put a timeline together on the “leak” of the information before the primary. This information became public before I even had the final draft approved between me and my attorney – the question should be who the breach is in confidentially now? I know I didn’t say anything.

During this settlement process, EMA Director Rick Lee resigned. On February 22, 2012 with $36,000 on the table, and an inferred $50,000 counter looming, I countered with, keep the money and give me one of the two full-time EMA positions (Director or Deputy Director). On February 28, 2012, I was informed that the Commissioners were not interested in placing me in either of the EMA positions, had no desire to retain me as an employee, and wanted to get this issue settled by Friday March 3, 2012 (interesting, this process had never been time bound before), and countered with an offer of $56, 000 to include my resignation, and that I would not seek re-employment with the county now or in the future. It became apparent at that point that I had two choices; end this and take the settlement, or end the settlement process and go back to the SPBR for a hearing and continue to fight for admission of wrong doing and/or maybe get the position (at an estimated additional cost of $10,000). I had grown weary over the last two and a quarter years, and had a lot of personal irons in the fire as well. So, after I requested them, and they did, to remove the statement regarding re-employment (because you never know, after their reign is over, I might re-join the EMA, or ….. maybe run for Commissioner myself someday) I elected to take the settlement offer and “Withdrew my Appeal with Prejudice”.

The Aftermath – the fighter returns

They had a hard time eliminating a thief who was also in dereliction of duties, but had no problem “firing/forcing out” the hard worker who blew to whistle. I’m pretty sure if you ask around, you would be hard pressed to find an objective person speak badly of me. I was a self starter who strove for continuous improvement of the EMA/LEPC functional areas. I loved my job!

Like David (as in David and Goliath), as a Safety, Health, and Environmental Professional (yes, I am a professional – with more than 20 years of dedicated experience), I used the tools that were familiar to me, that I was skilled in using; know the laws and critical business needs, develop and implement policies to assist in compliance, conduct evaluations/investigations, and develop/implement corrective actions/lessons learned to manage risks. These same tools apply in business management. The problem is when leadership is not willing to recognize these same tools as needed and/or essential. In the “ideal” world defects/complaints/hazards/risks would be recognized and managed accordingly.

As I find myself moving away from my David and Goliath quest and into a rabid dog due to the continued mismanagement and deceit, I become even more discouraged. I feel the time, energy, and money was not well spent. The intent of the SPBR didn’t not serve it’s purpose in protecting me from the Authority (at least not without tenacity and enormous expense), the public at large has not risen up to the occasion, and contrary to a public statement by Commissioner Rhoades, their actions never made me feel that what I was doing was “admirable”. However, it is greatly appreciated to see that there are some folks who are not willing to simply move on and let this pass without statement. Silence is acceptance! The way this has played out gives insight as to why we are in the mess we are in.

As I mentioned earlier, each day the Commissioners continue to add insult to injury. The more they are pressed for answers the more they squeal and lie. In every press release, and every general session, since in 2009, if you take what is said in the reverse, you will find the truth. They continue to state they did nothing wrong (which means they did). They continue to say they followed policy (which they did not), they did an investigation, and did it “quite well” (which they did not), they did not retaliate (which they did), they hired the most qualified (you get the picture), etc. Their web has become more tangled every day. The other day Mr. Rhoades stated that he did not vote for Mr. Lee, yet another Commissioner stated in 2009, that they were only one vote, indicating they did not vote for him either; yet the press release following the hiring of Mr. Lee stated it was unanimous – so where is the truth? When one deceit is pressed, the bait is switched to another non-truth. Let me give you an example: in the General Session on 3/19/12, after being pressed by a citizen as to the qualification of the last EMA Director and what made him so qualified over the two internal (qualified) candidate, and if he was so qualified, why did his resignation state that he was returning to an area more fitting to his background and abilities. Mr. Rhoades stated that it was all about supervisory experience; To quote
“One of the major qualifications, we three (3) Commissioners at that time was leadership. The lady you talked about didn’t have any of that experience whatsoever as a Foreman in Manufacturing, or anywhere whatsoever, that was the biggest thing we needed, the biggest issue we had before all of this took place was that we didn’t have a leader in there, that would be cooperative with all of the understandings they have to deal with in the county.” 
 For the record, I held a Global Director position for a fortune 500 company, responsible for 26 facilities, had double digit direct reports, and triple digit indirect reports (in 11 countries to boot- evidently, I’m a leader in France but not Darke County, must be that language barrier). All joking aside, I have proven my management and leadership skills right here in Darke County – just ask around. Mr. Rhoades might want to look at my resume again.

Additionally, the EMA position entailed the supervision of 1.5 self starting employees who knew exactly what their job (and the Director’s job) was and did them well, even in spite of dysfunctional leadership. Besides, from an EMA perspective should you really be more concern if someone has ever been a “Forman in Manufacturing” or should you be looking at their prevention, planning, mitigation, risk management, and recover skills; yes, you also need leadership and interpersonal skills too. For the Commissioner’s, what should be most important is complying with County Policy (objectively investigate reports/violations, conduct performance evaluations, give qualified internal employees first consideration, place the most qualified person in the position, and don’t retaliate).

During the same meeting, Mr. Rhoades stated how he hates the term Whistleblower- that is directly out of the Ohio Revised Code (which was used against them - which is probably why they don't like it). Like it or not, that is the law, maybe they should start following them!

Fact To Clear the Record/Tell the Truth:

  • The abuse reported was not a one time event and not an “unfortunate mistake”- it was willful repeated offenses
  • I was not behaving badly; I was complying with the law and the duty to report criminal activity.
  • The Commissioners did not initiate the investigation; it was initiated by my formal compliant.
  • County Policy was violated/not followed – on many counts
  • No matter how you slice it, the objectively most qualified candidate was not hired.
  • Unemployment benefits were paid to the terminated EMA Director which is yet another violation of the law and waste of tax payer dollars; theft is not a “just cause” category. To be eligible separation has to be through no fault of your own or “just cause”.
  • Full vacation payout was provided to the terminated EMA Director.
  • The investigation revealed 5 felony offenses for which charges were never filed.
  • No one at the State, the laywers, and all the Judges ever said the Commissioner did nothing wrong or that they did everything right – as stated by Commissioners during session. In fact, the Court of Common Pleas found the SPBR’s procedural history to show “a fundamental unfairness”and the Commisioners position to be “very superficial and self-serving factual predicate”.
  • We never made it to hearing so I never did present all my evidence.
  • Technically, there was no “winner”- I withdrew my appeal.

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