Wednesday, May 13, 2015

Cape May County secretly pays $40,000 to settle whistle blower lawsuit.

On November 24, 2014, the County of Cape May agreed to pay $40,000 to a former carpenter in its Facilities Department who claimed that the County fired him for reporting that Department employees were doing un-permitted work and committing health and safety violations.

In his suit, Scott Smith said that employees of the County's Facilities Department committed many violations including "removal of fire rated sheet rock and replacing it with regular sheet rock" and were doing work without first getting required permits.  He claimed to have reported these violations to County officials Al Barnett, William Holmes, Ann Marie McMahon, Barbara Blakely-Marino and Freeholder Director Gerald Thornton.  McMahon allegedly told him that "permit requirements did not apply to the County" and didn't need to be followed.

Later, when working at the Crest Haven nursing home, he claimed that Joseph Martino, Acting Supervisor of Building Maintenance and Repair, was directing Facility employees to "simply cover up black mold in the ceilings by replacing ceiling tiles rather than treating the mold as required by law."  When he complained, he said that Martino developed a "negative attitude towards him."  After his complaints were allegedly ignored by Martino, Smith said that he went up the chain of command to Michael Owens, who is Martino's supervisor, and Facilities and Services Director Ann Marie McMahon.  He said that McMahon told him that she "only recently began the job, don't bog me down with paperwork and investigations like this."

As a result of him complaints, Smith claimed that he was fired after having received a bad performance review that was based on "completely fabricated" issues.

The case is captioned Smith v. County of Cape May, Docket No. CPM-L-80-13 and Smith's attorney was Daniel M. Kurkowski of Cape May.  Case documents are on-line here.

The settlement agreement contains a confidentiality clause, which prevents the parties to the suit from publicly disclosing the settlement terms.  Fortunately, however, these confidentiality clauses do not trump the public's right to obtain copies of settlement agreements that arise out of lawsuits in which a government agency or official is a defendant.

None of Smith's allegations have been proven or disproven in court. The settlement agreement resolution expressly states that the $40,000 payment does not constitute an admission of wrongdoing by Cape May or any of its officials. All that is known for sure is that Cape May or its insurer, for whatever reason, decided that it would rather pay Smith $40,000 than take the matter to trial. Perhaps the defendants' decision to settle was done to save further legal expense and the costs of trying what were in fact exaggerated or meritless claims. Or, perhaps the claims were true and the defendants wanted to avoid being embarrassed at trial. This is the problem when cases settle before trial--it is impossible to know the truth of what really happened.