Whistle-blower fired by Salazar won settlement
The incident, which occurred when the attorney general led the Natural Resources Department, cost the state $400,000.
By Karen E. Crummy
Denver Post Staff Writer
Friday, October 08, 2004 -
Colorado taxpayers footed the $400,000 bill to settle a whistle-blower lawsuit against the state's Department of Natural Resources, then run by Ken Salazar.
Salazar, now the state attorney general and running for the U.S. Senate, signed the dismissal forms a decade ago for David Smink, then a petroleum engineer at the Colorado Oil and Gas Conservation Commission, who sued the state and Salazar's agency. The Natural Resources Department oversaw the commission.
Smink had alerted the commission that hazardous materials could be leaking into the state's groundwater. Soon after, he was fired for substandard performance.
In a statement put out by his Senate campaign last week, Salazar said he fired Smink in 1993 after "subordinate bureaucrats put phony documents" in his file and lied to Salazar about the situation.
But at the time, Salazar used Smink's firing to make a point about how his department should be run. He told the commission that the firing was justified as part of his effort to achieve "effective and coordinated management."
"I will not tolerate that kind of performance from any department employee," Salazar said.
In a subsequent court deposition, he said that he either did not know or could not recall details surrounding Smink's firing and that he relied on his deputy, Ron Cattany, and his subordinates for information on Smink.
Salazar, who headed the agency between 1990 and 1994, said Thursday that he didn't believe that the incident resulted from mismanagement on his part.
"Smink was far removed from any supervisory role I had," Salazar said. "He was way down in the chain of command, and I was overseeing 2,000 employees and a $100 million budget."
The natural resources agency had about 1,200 full-time and another 800 part-time employees while Salazar was in charge.
Smink, now a consultant in Littleton, sees things differently.
"I don't think this is the type of guy we need in the U.S. Senate," he said after The Denver Post contacted him. "He seems to respond to political pressure and not be on top of things in his own office."
The $400,000 settlement is considered substantial because employment cases are difficult to win, according to employment law and whistle-blower experts.
"It's unusual. It's a big victory," said C. Fred Alford, a University of Maryland professor and author of the book "Whistleblowers: Broken Lives and Organizational Power." "Most people don't get anything because the cases are hard to prove."
While employed at the Natural Resources Department in 1992, Smink contended that hazardous substances, such as oil and gas, from abandoned wells were seeping into drinking water because the wells weren't properly sealed.
To fix the problem, Smink wanted drilling companies to plug the wells with cement at a depth deeper than what his director required, court records show.
Smink wrote a four-page memo to his supervisor on March 9, 1992, alerting him to wells that weren't adequately plugged. This was jeopardizing groundwater, he said.
"I am a registered engineer in six states and have practiced engineering in those and several other states for 35 years," Smink wrote. "Nowhere I have been have I seen less attention paid to groundwater protection than in Colorado."
A 1994 state audit found a number of problems with the commission, including individual engineers having total discretion in choosing what wells to inspect.
The state auditor concluded that "the commission cannot assure itself or the public that it has inspected the wells that pose the greatest risk."
Oil companies began calling and writing to the commission to complain about Smink's demands, and his supervisor started changing his orders, court records state.
Soon his performance evaluations went from "commendable" and "good" to substandard on Dec. 22, 1992. He was given 45 days to improve, but on Feb. 9, 1993, he was placed on "administrative leave," and the next day he was escorted from his office by the State Patrol.
Two months later, Salazar fired him.
Smink sued under the whistle- blower law that protects state employees from retaliation if they question a government agency's actions.
A handwriting expert hired by Smink found that his personnel records were altered and that his signature was photocopied on certain records used to show that his performance was substandard.
Two years after Smink was fired, the state settled the case and gave him a check for $400,000.
Now, in his second term as attorney general, Salazar said he never read Smink's file or talked to him directly before firing him.
