City To Pay Legal Fees – Brevard, NC
Last updated 10/21/2020 at 3:11pm
Brevard City Council voted Monday to approve city funding for Public Works Director David Lutz’ legal fees.
In September, Lutz, was issued a federal indictment on charges of environmental crimes related to the “handling, transportation and storage of hazardous waste” in May 2016.
According to the Western District of N.C.’s Department of Justice (DOJ), the indictment says Lutz violated the Resource Conservation and Recovery Act by illegally directing Public Works employees to dig up soil known to be contaminated with lead from the backstop of the city’s firing range and directing them to store it at the Public Works Operation Center, though the center is not “permitted as a treatment, storage or disposal location for hazardous waste, such as lead.”
Lutz is required to appear in federal court in Asheville, though no date has been set. Lutz, who was hired by the city in October 1986, was placed on administrative leave Sept. 15.
In a city response to the indictment, City Attorney Michael Pratt said a lawsuit has been filed against CDM Smith, the city’s engineering and consulting firm the city had hired.
The city alleges that CDM Smith failed to notify Lutz and the city that it was violating federal law in a “breach of contract.”
The agenda item during council’s meeting to pay the legal fees was listed under “Consent and Information,” where a list of items are approved without chamber discussion in one vote, but Councilwoman Geraldine Dinkins requested that it be placed under “New Business,” under which the agenda item is discussed before voted on. The legal fees would come from the city’s water and sewer account.
“Do we have any cost estimate of what we are signing up for here to pay for the legal representation of Mr. Lutz,” Dinkins asked Pratt.
Pratt answered that he doesn’t have a “meaningful cost estimate,” but he would not be surprised if the cost were to “run roughly $50,000.”
Dinkins then asked City Manager Jim Fatland from what section of the budget would the money be drawn. Fatland said that he has been charging legal expenses to the water and sewer plants, respectively, because it’s where the shooting ranges of the alleged incident were located.
Dinkins then asked a question that she said was on the behalf of city residents.
“What have we as a city done to investigate possible impact on our environment, and possible harm to our citizens and staff? What I’m looking for is things that we have had tested, that we have done to follow up on the alleged charges,” Dinkins said.
Pratt said that, with regard to the investigation and the concern that the grand jury might charge the city, two reports have been obtained from consulting engineering firms.
“One deals with the lead levels at the Cornelius Hunt Operations Center, and that report showed that there is no hazardous waste level of lead there,” Pratt said. “Secondly, we had an in-depth analysis made of the potential for hazardous waste exposure to workers and their families and to the public resulting from the movement of soil from the shooting range first to the operations center and from there to the landfill. And that study also showed that there is no impact and no quantifiable evidence that anyone has received enough exposure to suffer from it.”
“Looking over the agenda, he was wondering, and I to, if we could add David Lutz’s title, in the agenda, so it’s understood who he was in the position that he held,” Jones said. “And, also, he made mention, too, to treat the cost of the legal defense of staff the same as it would council. And he also mentioned that he would be willing to be a character reference for David on the almost 35 years that he served, not only the city, but also the citizens of Brevard with the late night calls of being out in the rain to fix lines and the managing of staff.”
Mayor Jimmy Harris said he “stands shoulder to shoulder with David Lutz.”
Councilwoman Maureen Copelof said, “I would just echo what’s already been said, and that is that David is an outstanding, very professional employee. I have worked with him only for three years now, but he is an amazing employee. He is loyal. And he deserves our loyalty and our support, and he’s given 35 years to this city, and this city needs to stand with him, so I also stand shoulder to shoulder with him.”
Councilman Gary Daniel said he hadn’t “intended to speak, but it seems like it’s a prerequisite here.”
Daniel said he didn’t think it was Lutz’s character that was in question.
“I certainly have no intention to speak ill of David,” Daniel said. “However, I didn’t join the Mafia, OK? I’m a city council member. I represent the members of this community. I don’t represent being loyal to David.
“I support David, and I’m going to support him tonight. The city manager’s job is to support and take care of our staff. Our job as a city council member is to look after the interest of the city, and its citizens, and that’s all I want to say on that.”
Councilman Mac Morrow said he had brought letters people had written to show support of Lutz. He added that if the city had been aware of a different plan, it would have done it differently.
Dinkins said she wanted to echo what Daniel had said earlier – she stands with the citizens first.
“I very much appreciate Mr. Lutz’s work ethic and his longevity with the city. However, he is compensated for his work,” Dinkins said. “And that makes it a fair and balanced deal. I simply, with my questions, wanted to make sure that our citizens understand what we are in for here, and that we have done testing.”
Dinkins said there are still citizens who are “confused about what happened,” as well as “worried that there is something polluting groundwater.”
“If you throw things like lead out there people get really concerned about that,” Dinkins said. “And, when city council members circle the wagon around Lutz, that makes it feel even more suspect. So my questions were designed to give some transparency to what we have done as a city and what we are going to be paying to get fair representation for Mr. Lutz.”
Jones said, by standing shoulder to shoulder with Lutz, he is “by no means not standing shoulder to shoulder with the citizens.”
“When you are talking about compensation for his work, a lot of these citizens may not know the actions and things that he did and had his staff do to save them a lot of money in tax dollars over the 35 years,” Jones said. “There are a lot of things that I can say, and I don’t want to get into it now. Now is not the time or the place, but by saying, I support David I’m also standing by my citizens because of what he’s done for the city and for them. If you were here longer on council, you could have seen behind the scenes, because behind the scenes, we see more of what is done.
“We have just got to transfer that information along to them. He’s done way more behind the scenes for the citizens than they know.”
Copelof said there has been transparency in testing that has been “publicized in the newspaper.”
“All the extensive testing came back pretty much negative,” Copelof said. “It has not been hidden. It’s been out there. It’s been discussed. It’s been reported, and, so, there hasn’t been any type of hiding of information from the public.
“Again, we are all here supporting the citizens, and the best way to support our citizens I believe is to support David Lutz and approve that payment of those legal fees.”
In closing comments, Harris said there is “little difference between naturally occurring and lead from a berm.”
“We’ve had high occurrences of lead and magnesium throughout our community,” he said. “I guess what I’m saying is what Geraldine said – if there are people who are confused, or scared of the lead concentration, first, as you’ve heard Michael Pratt say from the report, there is no concern to have. And if you do have any concerns, feel free to call me, because there are no concerns in our community.”
More from the meeting will appear in Monday’s paper.