County, Ex-Employee Settle Case Of Alleged Health, Safety Violations

CREST HAVEN – The Herald was apprised by self-described “transparent government advocate” John Paff of a settlement reached Nov. 24, 2014, and just being put into the public domain whereby Cape May County agreed to pay $40,000 to “a former carpenter in its Facilities Department” (i.e. Facilities and Services Department) who alleged that the county fired him for whistleblowing. According to Scott Smith’s claims he reported that pepartment employees were doing work without the proper permits and also committing health and safety violations.
Paff maintains a related website and writes a blog entitled “NJ Open Government Notes” that is dedicated to “notes, observations and suggestions on transparency and accountability in New Jersey local government.”
According to his civil action legal complaint filed with the Superior Court in Court House Feb. 13 2013, Smith noted he is “knowledgeable of the New Jersey construction codes, safety regulations, fire regulations and other rules governing building and construction such as local permit rules.”
His complaint also stated that he “was the recipient of praise and positive evaluations”.
In his legal filings, Smith described how “employees of the county’s Facilities Department violated on numerous occasions county regulations and guidelines.” Specifically, Smith alleged he “took notice of numerous construction code violations pertaining to roof work without proper equipment, electrical work, concrete work, flooring, elevator issues, hardware insufficiencies, improper rebar used, violations hidden from building inspectors.”
Plaintiff Smith stated he was hired into a permanent contractor position when he placed first on the Civil Service list from his temporary position. At that point, he was reassigned per his complaint, “to work in Crest Haven Nursing Home” (i.e. Crest Haven Nursing Home and Rehabilitation Center) where he “took notice of black mold” that was being covered with new ceiling tiles rather than treated as the law required.
In addition to these violations, Smith also stated he had noticed the removal of fire-treated sheetrock being replaced with regular sheetrock and work performed without first obtaining the necessary permits. Smith claimed to have reported these violations to county officials including Gerald Thornton, freeholder director as well as Ann Marie McMahon, county Facilities and Services director.
Per Smith’s complaint, he alleged that McMahon told him, “permit requirements did not apply to the county, but were rather a courtesy to the township and the construction codes were guidelines, not requirements and the county did not have to follow the same rules because they were a government facility.”
As a result of his disclosures, stated Smith, his acting supervisor developed a “negative attitude” towards him. When he took his allegations up the chain of command to McMahon she told him that she “only recently began the job, don’t bog me down with paperwork and investigations like this.”
As a result of his complaints, Smith claimed he was fired after having received a bad performance review that was based on “completely fabricated” issues.
Responding to a request for comment from the Herald, McMahon stated, “I am very familiar with the Scott Smith case. The county vigorously disputed the allegations in the complaint and was prepared to see the matter through to trial. Ultimately, however, counsel for Mr. Smith and counsel assigned to the county by its insurance carrier were able to negotiate a nominal settlement that, when compared to the anticipated cost of defense, led the insurance carrier and the County to the business decision to settle the case.”
McMahon also explained “I have seen other media reports and to the contrary, there was nothing secret about the process. The county did discuss the matter in closed session under the Open Public Meetings Act as the law allows, but any such discussion was advertised in accordance with the law and the settlement was authorized by resolution adopted at an open public meeting.”
According to the confidential settlement agreement between the parties, Smith cannot disclose the terms of the agreement without prior consent from the county and generally only “other than in response to a subpoena or court order compelling such testimony.”
None of Smith’s allegations have been proven or disproved in court and the settlement agreement expressly states that the $40,000 payment does not constitute any admission of wrongdoing by the county or any of its officials.
Echoing McMahon’s perspective, Acting County Counsel James Arsenault said, “the county was prepared to defend the case all the way through to trial. The county did not, and still does not, believe it did anything to damage Mr. Smith. Ultimately however the attorneys were able to negotiate a proposed settlement that, given the anticipated cost of continuing with the litigation, was reasonable. The settlement allowed the county to close the matter once and for all and ultimately save the additional legal cost of defending the claim. Under the circumstances, settling the claim to avoid further cost made the most business sense.”
Thornton and Smith’s attorney, Daniel Kurkowski, Cape May, did not respond to the Herald’s requests for their input.
To contact Camille Sailer at csailer@cmcherald.com.