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News / Clark County News

Benton predecessor forced out

Former environmental services director Gray alleged Mielke targeted him over probe of pal

By Erik Hidle
Published: May 4, 2013, 5:00pm

In 2011, Clark County’s director of environmental services launched an investigation into Vegetation Management Department employees misusing county time, resources and funds.

In January 2013 that director, Kevin Gray, found himself out of a job after he filed a request for whistle-blower protection under state and county law.

Gray alleged in those documents that he was being forced out of his job by Republican County Commissioner Tom Mielke, because Gray’s investigation was aimed at Mielke’s friend, neighbor and campaign donor.

A Columbian investigation and review of documents shows Gray did not leave the county on his own terms.

In an audio recording of a March commissioners meeting, Mielke made it clear that he took issue with Gray’s work. But when questioned by a reporter in response to Gray’s allegations, he says he stands by his actions, and any assertion that he had a personal score to settle with Gray is false.

“Nuh-uh,” Mielke said, shaking his head side to side.

“That’s not the case here. And if anything in that (whistle-blower) document were true, then I imagine Kevin would still be here.”

Mielke contends the individuals investigated were, in his words, the “victims,” and that Gray was in the wrong by documenting the misuse of county time and resources.

Gray dropped the whistle-blower complaint a week after he filed it, after commissioners agreed to pay him $59,064 in severance pay, a move that Democratic Commissioner Steve Stuart later called “unusual.”

And after a Feb. 1 announcement that he was resigning his post effective April 15, Gray was gone. He didn’t return to the county buildings, and he took a new job with a private firm in Portland.

Gray’s work remained

Documentation from the investigation shows Gray received complaints from staff in vegetation management, a department he oversaw, in 2011. He reported those concerns to County Administrator Bill Barron in March of that year.

The concerns focused primarily on Phil Burgess, the supervisor of vegetation management, and his use of county time and resources to benefit his personal business of manufacturing weed-killing tools.

Burgess, who had led the department since 1998, is a neighbor, campaign contributor and friend of Mielke’s. And according to testimony by Burgess, it was Mielke who tipped him off to the pending investigation days before it was made known to the department’s employees. The investigation shows Burgess then called in an employee and questioned him on the matter. Gray later discovered what had happened and told Burgess to stop what he was doing, and allow the investigation to run its course.

In an effort to avoid a conflict of interest, Barron turned to the Clark County Auditor’s Office to conduct the investigation.

The investigation found Burgess used funds he controlled in the department to purchase more than $11,000 worth of his private company’s products through Cowlitz County in 2004. Linda Bade, the auditor’s operations review manager, wrote in the report that such a government-to-government transaction has different rules than typical county purchases, allowing Burgess to avoid scrutiny on the purchase.

Further investigation found Burgess took Robin Simpson, his administrative assistant at the county, with him on a marketing trip that benefited his company. On the trip, both logged work hours on county time cards. Simpson also received reimbursed hotel stays during the trip.

The investigation also found Burgess used his county cellphone, email and computers to operate his personal business.

When contacted for this story, Burgess said he disagreed with the facts presented in the case, claiming he never bilked the county. He said his actions — such as the purchase from Cowlitz County and the marketing trip — were made clear to Barron beforehand.

In an interview with investigators, Barron said he didn’t approve the trip nor was he aware of how the tools were being purchased. The transcript of the interview shows Barron said he told Burgess, “You gotta separate this from the county. You cannot benefit from this.”

Barron, who announced his Sept. 10 retirement last week, declined comment for this story, citing confidentiality concerns.

“That investigation all had to do with Mr. Gray,” Burgess said. “I was kind of the thorn in his side because I wanted to kill weeds and he wanted to plant trees.”

And other than the calls made on his county cellphone — which Burgess admits he shouldn’t have made — Burgess said he wouldn’t do anything differently.

“I don’t have anything to hide,” Burgess said. “I didn’t do anything wrong.”

Gray says in his whistle-blower letter that he allowed Burgess to retire in January 2012 in the aftermath of the investigation as a courtesy. Mielke later confirmed that, saying the retirement was a “recommendation” made to Burgess.

Burgess says he retired because he “saw the writing on the wall.”

Simpson, the administrative assistant Burgess took on the East Coast trip, was found to have a pattern of spotty timekeeping and was fired by Gray in March 2011.

A third individual, Ron Hendrickson, was also found to be using county resources to operate a private irrigation backflow-testing business. Gray elected to reprimand him, but keep him on at the department. Hendrickson was demoted from lead field inspector to field inspector.

Mielke steps in

In the original whistle-blower complaint, Gray alleges Mielke was retaliating against him for his part in the investigation into vegetation management, and made attempts to thwart his work as a department head.

In 2012, Gray began the process to fire Hendrickson after determining his work performance hadn’t improved.

But Mielke put a stop to that.

At an audio-recorded commissioners meeting in March, Barron outlined Mielke’s 2012 request to place Hendrickson on a “remediation” plan instead of firing him. After just a few months of the plan, Mielke felt it was time to reinstate Hendrickson to his former position.

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The audio recording confirms Mielke didn’t approve of Gray’s management style.

“We had, in my opinion, we had problems with the department head,” Mielke said at that March 6 board meeting. “And it’s the actions of the department head, and the method from which he documented things. It wasn’t in a fashion of saying, ‘Hey, you made a mistake, let’s correct it and get on with it.’ It was, ‘Let me document it, document it and then we’re going to bring you in, and sit you downstairs here. Remove you from the office where you’re working. Put you down here underneath the scruitful (sic) eye of someone to oversee what you’re doing every minute of the day.’ That is not the way you treat people, and that is part of the problem that we had with the individual that was overseeing it.”

Mielke confirmed in an interview with The Columbian that it was Gray he was speaking of during that discussion.

Mielke declined to comment on several aspects of the situation, saying he was bound by a stipulation in the settlement agreement.

That stipulation states, “related parties will not make negative or disparaging remarks to any person about employee, his employment with the county, or the events that led to the ending of employee’s employment with the county.”

A new administration

Speaking more broadly on the matter, Mielke said when new administrations come into power at a state or federal level there is often a changing of the guard in staffing. Mielke said similar moves could be made at the county level.

Though the three-member board of county commissioners has had a 2-1 Republican majority for years, conservative activist David Madore beat incumbent Marc Boldt last November and took office in January. Madore and others criticized Republican Boldt for not taking a hard conservative line on various issues.

Two weeks after Gray’s final day, Mielke and Madore elected to bypass county hiring protocol to appoint state Sen. Don Benton, R-Vancouver, as the county’s director of environmental services.

Commissioner Steve Stuart, the lone Democrat on the commission, was incensed by the move, saying it “stinks of political cronyism” and stormed out of the room.

Stuart said he supported Gray’s work, but said he couldn’t comment on what happened during executive sessions. He did say that a settlement agreement in this scenario was odd.

Whatever decision was made about Gray, Mielke said there was no way he could have done it on his own.

“I can’t do anything with just one vote,” Mielke said.

When asked for comment, Madore said he is staying out of the situation.

That means whatever process, decision or vote occurred regarding Gray’s employment will likely never be known.

The commissioners emerged from an executive session in February and immediately voted to approve the settlement agreement, with no discussion.

Executive session discussions are considered privileged information, and the county would need to be compelled by court order to release any notes from the meetings.

Through Gray’s three years as the head of the environmental services department, he received near-perfect employment evaluation reviews from Barron, who was his boss, not the county commissioners. In the most recent review, dated Jan. 2, Barron wrote that Gray “has performed at an extraordinarily high level during this appraisal period. He continues to display a great degree of professionalism. His talent for resourceful, imaginative policy work in a very complex environment is most impressive. He is a highly valued department head; critical to our ongoing efforts to reconfigure the county organization.”

Gray says just two weeks later he was told his employment was to end. Records requests asking for documentation of that incident have come up empty.

The audio recording

Mielke declined to speak in further depth regarding what was discussed in executive session, again saying he was bound by the nondisclosure requirements of the agreement.

But he did point to the audio recording as a hint of what was happening.

“If you have that recording,” Mielke said, “you know how I felt.”

The recording shows Mielke believes it was Gray who was in the wrong for investigating the Vegetation Management Department. And he contends the proper way to rectify the problems would be to help employees through the tough times, rather than to fire them.

“(Gray) did the same thing repeatedly three times,” Mielke said at the March 6 meeting. “Whether you agree or disagree, you know it sets a pattern. It sets a pattern of lack of leadership. To let the people who became victims, I’m using my terms, under that scrutiny of what took place and to leave them there is hard to rectify. It’s hard to rectify.”

Mielke says he opposed the investigation based on principle, not because of a personal relationship.

“I see people here all the time making calls on their phones,” Mielke said. “Everyone does that.”

County policy for cellphones dictates that employees reimburse the county for all personal calls made, regardless of the type of plan an employee uses.

At the time of the investigation Burgess had not repaid the county for the calls he had made regarding his personal businesses.

Further, Mielke said he believes some parts of the case were simply false.

“Some of the facts that were presented at the time were untrue,” Mielke said at the March 6 meeting. “And that was ignored.”

He also believes the investigation was petty, saying during the March 6 meeting: “I guess I believe we made mountains out of molehills.”

Mielke also says repeatedly on the recording that Gray was at fault for the way he documented the matter. But in reality, it was the auditor’s office that did the bulk of the investigation, using cellphone records, email archives and county records as evidence of the misuse of time and improper purchases.

And while it was Gray who handled the letters of reprimand and termination, it was the auditor’s office that reached many of the conclusions in the case.

In the draft report of the auditor’s findings, it is stated that Burgess may have made his conflicts of interest known, but he never resolved them.

“Mr. Burgess did not resolve his conflict of interest; rather he exacerbated it by obtaining ‘state funding’ to further his personal business gain,” the report reads.

It later states, “In addition, evidence demonstrates that Mr. Burgess used county time, equipment, and personnel to advance his JK International business interests; this is strictly prohibited by county policy.”

‘He was the guy’

Mielke did confirm that when someone called him to ask about Clark County’s program for exterminating Japanese knotweed, he would send them to Burgess because “he was the guy.” Burgess’ business sells a special gun that injects herbicide directly into the noxious weed.

Mielke said he didn’t see that connection as an example of Burgess misusing his position for financial gain.

“How else do you respond when someone calls?” Mielke asked rhetorically. “His product is effective. It was so effective that Clark County is known around the world for it. But you’re caught between a rock and a hard place with that. It’s a hard one, but all of this should have been positive for the county.”

Gray explains his feelings on the matter in the final paragraph of his whistle-blower complaint.

“Notwithstanding the tremendous physical, emotional and financial toll this unceremonious dismissal has already taken on me and my family, I am at a loss to explain the true reasons to my staff, the public and prospective employers,” Gray says in the letter. “I have served Clark County with integrity and dedication for 15 years.”

When contacted for this story, he kept his statement brief.

“I would reiterate that I was very proud of the work I did at the county,” Gray said. “I conducted myself in the best interest of the community and the organization.”

Key players

Phil Burgess

Phil Burgess was the supervisor of the county’s vegetation management department beginning in 1998.

In 2003 he told County Administrator Bill Barron he had developed a tool to help fight Japanese knotweed, an invasive species.

As part of an efficacy trial, funded with pass-through dollars from the state, the county helped test Burgess’ new tools. Burgess donated some parts to the county, and county staff were outfitted with the injection guns.

According to Burgess, the device was extremely successful in reducing the spread of Japanese knotweed from Clark County, and across the world.

“The rate of success (in killing the plant) is 98.6 percent with one injection,” Burgess said. “I’ve got all kinds of awards from developing this and from all over the country.”

Burgess was awarded a county Sammy Award in 2006, which, according to the county website, recognizes individuals for “outstanding contributions to salmon recovery in Clark County.”

Burgess retired from Clark County after an audit found he had spent county time and resources running his business.