As legal bills for accused Brevard employee mount, questions rise about the city's backing
City support for Public Works Director David Lutz, accused of mishandling hazardous waste, is "remarkable," an observer said. City leaders say Lutz is a dedicated employee who made honest mistakes.
By Dan DeWitt
BREVARD — Asked in October to estimate the legal costs of defending Brevard Public Works Director David Lutz — recently accused in a federal indictment of mishandling hazardous waste — former City Attorney Michael Pratt said he could only “throw out a guess figure.”
“It would not surprise me for this to run to $50,000,” he told Brevard City Council members at a meeting on Oct. 19, when they unanimously voted to cover the costs of Lutz’s defense.
Turns out, Pratt guessed too low.
The $375-per-hour cost of defending Lutz has just surpassed that original estimate, said City Manager Jim Fatland. And last week, in an order granting a continuance requested by Lutz’s lawyer, Chief United States District Judge Martin Reidinger revealed that much legal work may remain, citing the attorney’s appeal for time to sift through “hundreds of thousands of documents” generated by prosecutors and interview their “numerous witnesses.”
“This is going to be an unbelievably expensive trial if it’s litigated in federal court, you can count on that,” said Jack Stewart, a veteran Asheville lawyer representing former Transylvania Solid Waste Director Jeffery Brookshire, who pleaded guilty in March to unrelated federal environmental crimes and is cooperating in Lutz’s prosecution.
Besides noting the complexity and cost of federal cases, Stewart and outside observers pointed to another issue in this case — the city’s unusual level of support for an employee named in a federal indictment. Fatland, after briefly placing Lutz on administrative leave, has allowed him to continue to work and collect his $100,000 annual salary.
“The real mystery to me in this case is, I can’t figure out why the city is so willing to go to the mat over Lutz,” Stewart said. “It is terribly suspect to me, given the nature of the charges against this guy.”
Shoulder-to-Shoulder
Mayor Jimmy Harris and most council members say it is not suspect at all, given the long and dedicated service of Lutz, a city employee since 1986. They characterize his actions as honest mistakes that didn’t lead to lasting harm, and that came about because of a lack of guidance from an engineering firm the city had hired, CDM Smith, which Brevard is suing for negligence and breach of contract.
The case against Lutz stems from a 2018 complaint from a neighbor of one of the city’s two former law enforcement firing ranges, on the grounds of Brevard’s water treatment plant on Cathey’s Creek Road. That led state environmental regulators to also look at the city’s handling of lead-contaminated soil at a newer range at the city’s wastewater treatment plant; this range was closed in 2016 to make room for the plant’s expansion.
The state-mandated cleanup (the subject of an upcoming NewsBeat story) of both sites has been completed and testing has revealed no elevated lead levels in Cathey’s Creek, the city’s water supply or in monitoring wells at the county landfill, which accepted the waste.
The state investigation led, in September, to an indictment that accuses Lutz of directing city employees — working without protective gear or carrying legally required documents — to move about 20 truckloads of soil, some of which was contaminated with lead at more than 25 times the federal hazardous waste threshold. The soil from the range at the wastewater plant was first stored at the city’s public works operations center on Cashier’s Valley Road, according to court records, and then, after Lutz received the okay from Brookshire, dumped at the county landfill, which was not permitted to accept hazardous waste.
Lutz took these actions despite a warning in a 2014 email from a CDM engineer, who reported on the hazardous levels of lead and said that if the soil needed to be removed, it could only go to a landfill approved for such waste, “ ‘with the closest one I’m aware of in Alabama,’ ” the indictment said.
CDM, in its response to Brevard’s suit — which, like Lutz’s criminal case, is being heard in the U.S. District Court in Asheville — said that it did not provide a plan to remove the soil because at the time it was unclear whether the expansion of the plant required it.
When that proved to be the case, two years later, the city willingly decided to move the soil itself, CDM argues. The statute of limitations on the city’s claim has expired, according to the company’s response, which also called Brevard’s suit a ploy to “shift the blame and the cost of its illegal conduct to CDM Smith.”
But the city’s complaint said that not only did CDM Smith fail to provide a plan for the soil’s removal, an obligation of its contract, but failed to respond to an email from Lutz requesting direction before removing the soil in 2016. Because of this, the suit says, CDM should pay for defending Lutz, as well as the cost of the suit — so far about $49,000 — and the more than $490,000 spent on the cleanups.
Though Harris, Fatland and several council members declined to talk about the details of either case, following legal advice not to comment on active litigation, most of them were eager to express support for Lutz at their Oct. 19 meeting, with several of them echoing Harris’s pledge to stand “shoulder-to-shoulder” with their employee.
“David is an outstanding and very professional employee, He is loyal and deserves our loyalty and support,” Council member Maureen Copelof, one of Lutz’s most outspoken supporters, said at the time.
“The other thing is, everyone is innocent until proven guilty,” she said this week, and Lutz “has not been convicted of anything.”
A Federal Case
But the standard of proof for an employee’s disciplinary action is lower than for a criminal conviction. And federal indictments are typically the result of thorough investigations that produce vast amounts of evidence, said Frank Holleman, a senior attorney with the Southern Environmental Law Center, who has extensive experience trying federal cases.
“In general, federal white-collar prosecutions like this one are very time-consuming, very serious and have high consequences,” he said.
Standing by an employee facing such charges “is certainly remarkable and newsworthy. It would be very frequent that (governmental) bodies would ask them to resign,” said Rob Schofield, director of NC Policy Watch.
The targets of the most prominent recent public criminal case in western North Carolina — five employees netted in the federal investigation of widespread corruption in Buncombe County — were either already gone or departed when news of their actions became known, said Commission Chair Brownie Newman.
Former County Manager Wanda Greene, accused of masterminding the scheme, had recently retired when her indictment was handed up. Her replacement, Mandy Stone, who, like all five employees, eventually pleaded guilty to corruption charges, seemed less culpable than Greene, benefiting from the scheme rather than planning it, Newman said
Even so, she retired in 2018 shortly after being notified that she was being investigated, he said.
“We couldn’t have the manager of Buncombe County working under indictment,” Newman said. “People are innocent until proven guilty, but it was clearly not a tenable situation.”
And paying legal fees was out of the question, said Stewart, who represented Stone.
“Do you think the f---ing county was going to pick up any of those legal expenses?” he asked rhetorically. “Not only that, the county went after those individuals.”
There’s an important distinction between those cases and Lutz’s, said Kimberly Nelson, a professor at the University of North Carolina’s School of Government. “Most public corruption cases involve personal benefit,” she said. “I think the (Lutz) case is unusual in that he was indicted for doing something that didn’t benefit him personally.”
But neither did Stewart’s other client, Brookshire, who was charged with accepting lead-contaminated filters from a firing range and who retired in 2017, before the start of the federal investigation into the Brevard ranges.
Though County Manager Jaime Laughter said she couldn’t comment on the facts of his case because he has not yet been sentenced, she wrote in an email, “I can confirm that the county did not pay for legal representation for Mr. Brookshire.”
Asking Why
When Buncombe did pay legal fees of employees, Newman said, it was for actions in which the county was also implicated, he said.
Pratt, in the October meeting, referred to a “concern that the grand jury might charge the city, which hopefully won’t happen now.” He did not respond to requests for further comment.
Fatland, according to court records, was cc’d in an email from CDM in 2014, when he was serving only as Brevard’s finance director, which stated “there could definitely be an issue with lead contamination . . . (that will) need to be addressed during design and construction” if the expansion of the plant required it.
Citing the inadvisability of commenting on active cases, neither Fatland nor other council members responded to questions about whether Lutz had discussed the removal of the soil with superiors two years later.
But Mayor Pro Tem Mac Morrow said that besides his loyalty and high regard for Lutz, he thinks the facts of the case should have resulted in regulatory action rather than prosecution.
“I don’t want to call this trivial,” he said, “but I don’t know why they didn’t just fine us and move on.”
But that understates the possible danger of Lutz’s actions, said Council Member Geraldine Dinkins, who said she favored an internal investigation of Lutz’s actions and, if warranted, a disciplinary response. (Fatland said he could not say whether the city conducted such an inquiry, citing the confidentiality of personnel matters under state law.)
Numerous study have shown the extreme toxicity of lead, exposure to which can lead to lower IQs in children among other adverse consequences.
“I stand with the citizens of Brevard, and I do believe that both employees and citizens were exposed to potential harm,” Dinkins said. “To me that is grounds for a review and the consequences that could come with that.”
Nora Jane Montgomery, who lives just outside the city limits, said she also thinks concern about the potential for exposure should be the city’s top priority.
“As a community member, I can’t help feeling dissatisfied with our city’s response. I’d like to see who gives Mr. Lutz directives and who we can hold accountable,” she wrote in an email to NewsBeat.
“Why on earth would the city back him?”