A former dam inspector causes trouble over gifts accepted by his boss
The fliers arrived last January, during a balmy interval between subzero cold snaps. They were tucked under windshield wipers in strip-mall parking lots in Parker and Westminster, stuck into screen doors of canyon homes above Boulder. The print was tiny and grim, and right away you could tell this was not good news.
"As you may know," the single sheet began, "you and your neighbors live downstream of a high-hazard dam. That means if the dam fails, loss of human life is expected.
"The following information may be of great interest/concern to you..."
Also Read: "Five great Colorado whistleblowers" in Latest Word.
The flier mentioned Mark Haynes, chief of the Dam Safety Branch of the Colorado Department of Natural Resources, "whose charge is to safeguard the lives of Coloradoans from dam mishaps." Haynes "has admitted to accepting gifts from engineering consultants who design, construct and alter dams in our state," the flier claimed — gifts that included "tickets to sporting events, meals and golf greens fees."
Haynes was never disciplined for this, the letter continued. Instead, another state employee who reported the gifts to DNR officials "was threatened verbally and in writing" and ultimately fired by the state engineer, Dick Wolfe, "even though there were absolutely no documented problems with his performance.
"State officials apparently don't believe that the possibility of compromised high-hazard dams warrants further investigation; however, as someone whose family's lives and property could be in peril, we believe it should be your choice whether enough has been done to make you feel safe and secure living below what could be a 'ticking bomb.'"
The screed urged citizens to contact their state representatives and Governor John Hickenlooper. It wasn't signed, but it contained an e-mail address for something called Colorado Citizens for Dam Safety.
Despite its alarming tone, the flier failed to trigger a flood of angry calls to the new governor. Many recipients probably didn't bother to read the whole thing. And those who read it closely might have suspected that Colorado Citizens for Dam Safety consisted of an army of one: the fired whistleblower himself.
The fliers are, in fact, only one volley in a long and lonely campaign waged by John Redding, a former employee of the Department of Natural Resources who was fired almost two years ago. A professional engineer, Redding claims he was retaliated against and eventually canned because he was asking awkward questions about gifts accepted by Haynes and others in the Dam Safety Branch, an obscure but vital agency responsible for approving and inspecting more than 1,800 water-storage facilities across the state — including 310 dams classified as high-hazard.
Redding has told his story to lawmakers and ethics panels, to no avail. He's exhausted his savings appealing his termination, only to be rebuffed by an administrative law judge and the state personnel board. (His case is now before the Colorado Court of Appeals.) And although he has no evidence that the gifts accepted by state regulators have actually put anyone at risk, he believes it's a question worth considering.
"It probably hurts me more than it helps me to go public with this, but I think it's an important story," he says. "In my opinion, these guys have done some pretty unethical things. The consequences of a dam failure are so catastrophic that, even if there's only a small chance that [Haynes] did something wrong, I think it's worth looking into."
State officials say they have looked into the matter — repeatedly, exhaustively, ad nauseam. Redding's complaints have generated internal reviews and a blizzard of e-mails over the past three years. Wolfe, the state engineer, maintains that the Dam Safety Branch is above reproach. Haynes, a longtime employee of DNR, wasn't disciplined because he didn't violate the applicable state ethics policy at the time, Wolfe says, and the gifts involved were deemed insignificant. He also denies any retaliation against Redding and characterizes him as an unsatisfactory employee who attempted to cover up his own shortcomings by claiming whistleblower status.
"I was good friends with John for a long period of time, and I didn't take lightly that decision" for termination, Wolfe says. "But I have a responsibility to the governor and the citizens of Colorado to make sure we have competent employees working for us."
There's no reason for the public to worry about dam safety in Colorado, he insists: "I have 100 percent confidence that there's no issue out there, there's no dam that was in any way jeopardized because of any employee accepting a gift basket. Mark Haynes has a tremendous amount of integrity."
Yet the dramatic turnaround in Redding's status at the agency — he went from being a highly praised and valued employee to one who was supposedly lacking in "core competencies" in a matter of months — isn't easily explained, unless you believe (as Redding does) that there were other agendas at work. He had a rocky relationship with Haynes before the gift issue was raised, but his harping on the practice seemed to strike a raw nerve.
He became the odd man out in a three-man office, the guy who didn't fit in, the unassimilable Other. He was shunned like a flatulent leper, given the silent treatment and cut out of projects and meetings. And then fired.
"It just got ugly and out of control," Redding says.
John Redding first fell in love with Colorado during a river-rafting trip in the early 1990s. His guide seemed to know a lot about water law, and Redding himself soon became so fascinated by the state's waterways and resource-management issues that he decided to move a thousand miles and change careers.
Redding had grown up in Illinois, studied aerospace engineering as an undergraduate and then worked in the defense industry near Chicago. But after his river trip, he picked up a master's degree in civil engineering at the University of Colorado and then went to work for the City of Thornton as a water resources engineer. (He also has a master's in industrial engineering.) In 2002 he took a job in the Department of Natural Resources, issuing state well permits and reviewing water-rights issues.
During his first few years in DNR, Redding received highly positive evaluations, as well as letters of commendation for exceptional customer service. He even received an unusual 10 percent raise in salary after two years as an "enticement bonus" to encourage him to stay with the agency. But by 2006 Redding was receiving less glowing reports from his supervisor, who felt Redding spent too much time helping customers while neglecting some of his paperwork. Redding disagreed and began looking around for a job that involved more field work. When a position opened up in the Dam Safety Branch, he jumped at it.
The branch has engineers assigned to nine regional offices around the state. At the time, the Denver office consisted of two people: chief Mark Haynes and his new hire, Redding. The latter had no prior experience doing dam safety inspections, reviewing designs, determining storage restrictions or the other critical work of the branch, and it was understood that Haynes would be showing him the ropes.
Compared to his previous job, Redding found the work both more challenging and more isolated. Haynes was aloof, he says, and not particularly generous in his approach to training: "He's definitely a stereotypical engineer. He doesn't have a warm personality, but I think he's very good at what he does. At first he'd give me dam construction drawings and ask me to give him my comments. Ultimately, he figured out that wasn't a good technique, so he started inviting me to meetings and assigning me dam inspections."
The relationship was tense from the beginning. Shortly after Redding was hired, Haynes left a note on his desk questioning whether Redding was spending too much time finishing up work from his previous position. Redding shot back with an e-mail that an administrative-law judge would later describe as "tactless and confrontational."
"I can't tell if you're kidding or not," Redding wrote. "If not, I'm starting to get kinda irritated about this whole thing!" He'd spent nights and weekends completing projects from the old job, "and instead of people showing any kind of gratitude, I just keep getting this kind of crap. Anyhow, forgive my rant, but I'm beginning to get really resentful, and that's not a good way to start a new position."
Haynes e-mailed back, apologizing. But other rifts soon arose. Redding and his wife were trying to have a child. Haynes and his boss, deputy state engineer Jack Byers, became aware of this endeavor and made cracks about fertility rituals that Redding didn't appreciate. Byers even left a sperm-shaped liqueur bottle and a gag recipe for a "fertility shake" on Redding's desk. After his wife had a miscarriage, Redding asked that the baby-making jokes cease.
A decided coolness descended on the Denver office after that, leading that administrative-law judge to conclude that Redding's relationship with Haynes was "already broken" long before Redding started complaining about his boss accepting gifts. But Redding says his beef was more with Byers at that point. He claims that Byers greeted his request to knock off the jokes with a "stern glare" and soon started retaliating against him; Byers even ordered him to "come in on a weekend to paint my office by myself — and I had to pay for the paint," Redding says. (Byers, who retired in 2008, has denied any retaliation.)
Haynes and Redding may not have been buddies, but Haynes was still actively training Redding during his first year in the Dam Safety Branch, accompanying him on inspections and giving him feedback on his reports. And Redding's overall performance seemed to meet with Haynes's approval. In the spring of 2007, Haynes gave Redding a "commendable" rating on his annual evaluation and acknowledged that he seemed to be budgeting his time better. "Needs to develop his technical skills in the area [of] dam design and construction," Haynes wrote, adding that those skills "should come from additional training."
But the additional training depended on the two men getting along, and the atmosphere in the office was turning toxic. That same month, Redding's wife gave birth to their son. Redding was soon taking more sick leave than Haynes had approved, leading to more e-mail sniping. Haynes demanded that Redding explain his "timesheet discrepancies." Redding suggested that they talk about it in person.
"Sorry, but I thought your preferred method of communication was by email messages based on the amount of emails I get from you," Haynes shot back.
Redding agreed that e-mail was more efficient in some cases, but "occasionally it makes sense for one of us to walk the ten feet into the other's office." Yet within hours Redding was peppering Haynes with e-mails raising another subject, one he surely knew would be a sensitive topic.
During meetings with other DSB employees, Redding had heard Haynes talking about events he'd attended courtesy of various dam contractors and consultants: golf tournaments and Colorado Avalanche games, for example. Redding had also seen Haynes sporting a denim jacket with a leather collar that commemorated the Reuter-Hess Dam project, a high-hazard dam in Douglas County; the jacket originally proclaimed that the wearer was a member of the GEI Consultants Inc. "engineering design team." (Haynes later removed the company logo.) And Redding had taken note of the gift baskets that Haynes and other dam inspectors received from engineering firms during the holidays and shared with others in the office.
So Redding responded to the questions about his sick leave with some questions of his own. "Hi Mark," he wrote. "You were going to tell me where you bought your Reuter-Hess jacket and how much you paid for it. Do you recall? Also, where did that gift basket come from that you got around Christmas?"
When that e-mail failed to elicit a response, he fired off another one: "Is it ever allowable for a state employee to have a consultant pay for things like tickets to sporting events, greens fees, etc.? To me this sounds like a huge conflict of interest...especially when our responsibility in Dam Safety is to protect the public, and these kinds of 'gifts' could be perceived as compromising our integrity to do our job without bias."
Still no response. Redding knew Haynes was leaving town, so he dispatched another e-mail a few hours later: "I'm sure you were busy getting stuff done before your trip, so I'll get answers to these questions elsewhere while you're gone. Have a good trip!"
From that day forward, Haynes wasn't inclined to discuss the gifts with Redding — or much else, apparently. "He stopped talking to me," Redding says. "Suddenly I wasn't invited to meetings that involved projects I had been working on."
When he had first learned about the gifts, "I didn't think it was a big deal," he adds. "But here he is in one of the most important positions in state government, in terms of lives at stake, and I just thought a person in this position shouldn't be taking gifts from people who could benefit from him relaxing the rules a bit.
"I didn't think it looked good. I thought I should say something about it. But I didn't expect the retaliation that followed."
From November 1, 2008, through the following October, engineers in the Dam Safety Branch performed a total of 692 inspections of dams already operating in the state or under construction. They recorded 13 "dam incidents" requiring emergency response and follow-up investigations, none of which resulted in a dam failure. They added 22 dams to the restricted list — meaning the dams were not permitted to operate at full storage capacity because of leaks, cracks, inadequate spillways or other problems — and removed a few others from the list, which includes more than 150 problem dams around the state.
During that same time period, the State Engineer's Office approved plans for one new dam and 31 requests for modification or enlargement of existing dams, projects totaling more than $100 million in construction costs. Building and maintaining dams is an expensive business, which makes the notion that state inspectors could somehow be bought off by fruit baskets, denim jackets and other cheap trinkets seem quite loony.
But protesting that your soul is not for sale — at least, not at that price — turns out to be unnecessary. The officials who looked into the gifts Haynes had accepted had a much simpler absolution to bestow: Under the state ethics policy at the time, there was nothing illegal about it.
In 2006 Colorado voters approved Amendment 41, which prohibits state workers and their immediate families from accepting gifts valued at more than $50. That ban would probably have included greens fees, Broncos and Avalanche tickets and several other items offered to Haynes and others in the Dam Safety Branch. But the passage of 41 sent ripples of confusion throughout the bureaucracy — would it forbid a scholarship offered to a state janitor's kid? a Nobel Prize awarded to a state university professor? — and prompted legal challenges that delayed its implementation for years.
While 41 was tied up in court, the operative ethics policy came from an executive order issued by Governor Bill Owens in 1999: a vague, weak prohibition against a state worker accepting gifts "or any other thing of value which would influence him or her to depart from the faithful and impartial discharge of his or her duties." Unlike 41, the Owens directive didn't attempt to put an actual cash price on a "thing of value." And it didn't provide any guidance in determining whether the kind of swag turning up at the Dam Safety Branch would tend to "influence" a public servant or not.
Not surprisingly, when members of the Colorado Attorney General's Office reviewed Haynes's gifts in the summer of 2008, they concluded that no ethical violation had occurred. This fit nicely with the position that would soon be adopted by officials at the Department of Natural Resources in defending Redding's termination: that he had only raised the gift issue as one complaint among many in an effort to gain leverage in his ongoing battles with Haynes. A real whistleblower, the officials suggested, wouldn't have introduced the issue during a heated e-mail exchange over his own time-sheet problems. At one point, when state engineer Wolfe pressed Redding about whether he was determined to pursue his complaint about the gifts, Redding responded that it depended on "the way Mark treats me in the future" — hardly the response one would expect from a man on a righteous crusade.
Regardless of Redding's motives for raising the issue, though, the department's handling of the matter is notable for its seeming lack of concern about the possible implications of the gifts. They didn't violate the ethics policy, in the AG's opinion, but they did present at least an appearance of conflict — and raised more than a few questions about the coziness of the relationship between dam regulators and the people whose work they were supposed to regulate. But Redding claims Wolfe was reluctant to investigate the issue for months after it was first brought to his attention.
Redding and Wolfe had gotten to know each other years earlier, while working together on Colorado Water Officials Association events, and occasionally met away from work for lunch or to attend holiday concerts with their wives. Redding says he first mentioned his concern about Haynes's gifts in a casual conversation with Wolfe in the summer of 2007.
"It was almost a year later that he looked into it, and the only reason he did was because I was filing a complaint," Redding says. "I think he was hoping this thing would just quiet down."
Wolfe disputes Redding's account. He didn't become the state engineer (and Haynes's overseer) until late 2007, and he insists that Redding didn't mention the gifts to him "in any kind of serious way" until July 2008. "He may have brought it up informally, but he was having ongoing conflicts with Jack [Byers], and then it spilled over to Mark," Wolfe says. "He was alleging that Mark was making slanderous remarks, and that's when I asked John to provide me with some specific information. It was several months before John responded to my request, and that's when he brought up a specific list of gifts that Mark had accepted. That's when I initiated an internal investigation."
But Redding had been hollering about the gifts, along with a hodgepodge of alleged retaliatory actions and other grievances, to various state officials for some time before any investigation began. Passed over for two promotions in 2007 that would have transferred him to Greeley or Durango, he filed a complaint with the State Personnel Board, claiming that Haynes was giving him the "silent treatment" and badmouthing him to other DSB employees; he also mentioned that Haynes had ignored his questions about the gifts. (The board denied his petition for a hearing.) In the spring of 2008, he e-mailed Wolfe and told him he was planning to file a whistleblower complaint about the "retaliatory treatment" he was receiving and alluded to previous conversations with Wolfe "about Mark's receiving gifts from consultants whose dam construction drawings are reviewed by him (HUGE conflict of interest)."
Wolfe held meetings with Haynes and Redding and tried to get them to put aside the hard feelings. He told Haynes to quit making negative comments about Redding and suggested it would be a good idea for the two to communicate in person rather than by e-mail. (By now another engineer had joined the office, a man Haynes did talk to and accompanied to meetings and inspections, while Redding became the wallflower at the dance. "It's like I'm not even there," Redding complained.) The state engineer didn't seek more information about the gifts, though, until summer — and Redding provided more details within weeks, not months.
Haynes's own response to Wolfe's inquiry was even more detailed — and more indignant. He listed a handful of minor goodies he'd received in decades of state service, including the infamous denim jacket — which he valued at less than $50 — as well as a few fruit baskets and candy and nut boxes, tickets to sporting events ("5 to 6 max"), participation in a couple of consultant-sponsored golf tournaments "and an occasional lunch after meetings."
"I take my job and responsibilities very seriously," Haynes wrote to Wolfe. "You can be reassured that I am not going to risk my job, livelihood, professional engineer's license and the safety of the lives and livelihood of the general public over a meaningless jacket or any of the other gifts noted above.... I would challenge anybody to prove that I showed inappropriate favoritism to any consultant on any of their projects where gifts were received during or after projects were approved."
An outside investigator interviewed several of the consultants who'd sent gifts to the Dam Safety Branch; they denied any attempt at bribery and described Haynes as tough but fair. Yet Wolfe was uncomfortable enough with the fallout that he met with employees to discuss the issue and the new era of Amendment 41. "I didn't feel I had authority to issue anything that might conflict with department or state policy," he says now. "But I made it clear to my staff that it doesn't look right to be taking gifts."
Redding was disappointed in the official findings on Haynes's conduct, of course, and became increasingly worried about his job. It's not quite true that there were "absolutely no documented problems with his performance," as the flier claimed. He received an overall satisfactory rating in 2008, but some specific aspects of his evaluation, such as the timeliness of his inspection reports, were considered below par. Redding insisted that other engineers were late with their reports, too, and said he was being singled out. He asked for a mid-year review from Haynes but didn't get it for months; he finally received a positive verbal evaluation. He shot off e-mails to Wolfe and Haynes asking for other feedback about his work and got no response.
Some of Redding's tactics worked against him. In his termination hearing, he would be described as a compulsive e-mailer who generated disruption and tension; at one point he even started carrying a tape recorder to meetings. "I was trying to document everything," he says now.
Wolfe continued to mediate between Redding and Haynes. He offered Redding his old job back, which he refused. He suggested that Redding watch a Tony Robbins motivational video and "focus on the positive and less on the negative." At the same time, Wolfe was huddling with Kim Burgess, the director of human resources, about what to do with his feuding engineers.
"This problem has been clouded by many months of irrational behavior at times by more than one of them," he wrote to Burgess. "Currently, I feel that I am in a lose-lose situation. If I don't move John from Dam Safety, I run the risk of Mark leaving. If I move John, I run the risk of him filing yet another complaint or suit. If I give him some new position as he has requested, I just empower John to get 'promoted' by illegitimate reasons."
Haynes, who declined Westword's request for an interview, has admitted in testimony that he never told Redding — in person or in writing — about any major problems with his performance before the spring of 2009, when things finally came to a head. In the last weeks of his yearly evaluation period, shortly after he filed a formal whistleblower complaint, Redding was given several projects to complete in a short time period. One was a hydrology study he'd been assigned earlier but never completed because, he says, he was told it was low priority; others involved complexities he'd never tackled alone before, yet Haynes told him he couldn't consult with other DSB engineers about the assignments.
"I was given this workload from hell," Redding says. "A lot of it was things I'd never done before, and I was told I couldn't talk to anybody else."
Redding didn't meet all of the deadlines for the assignments. For the first time, his annual evaluation ranked his work as unsatisfactory; it was particularly scathing in the area of "interpersonal relations," blasting him as "irresponsible" and "deceitful." "I had suddenly become the worst employee in the world," he says. "I'd failed every core competency."
He was given what state officials like to call a "corrective action" — six tasks to complete in six weeks. The department's position was that Redding had been on the job for three years and should be able to handle a wide range of difficult engineering problems; Redding maintained that he'd never received the training he was supposed to get from Haynes and that he was being set up to fail.
And fail he did. Further appeals, meetings, protests and objections were of no avail. On July 2, 2009, Wolfe e-mailed a ten-page termination letter to Redding, citing his "failure to take responsibility for his work" and particularly his "lack of competence in the core areas of communication and interpersonal relations."
"The trends in your communication, both in terms of substance and style, lead to confusion, anxiety, mistrust and conflict," Wolfe wrote. "Based in part on your own characterization of the interactions between you and your supervisor, I believe irreparable damage has occurred."
Since his firing, Redding has lost every round with state personnel authorities. But he has been unusually persistent, taking his case all the way to the Colorado Court of Appeals.
"A lot of times whistleblowers don't go to court," says Patricia Bangert, Redding's attorney. "It's so expensive to sue that usually nothing is done about it. But in John's case, there is so much evidence that he was treated badly, that they came up with these spurious performance problems after never mentioning them."
Bangert's appeal brief points out that Redding actually scored higher in several measures of his performance in 2009 than he did in 2008, such as the number of dams he inspected and the percentage of inspection reports he completed on time; yet what was considered "satisfactory" the year before had become unacceptable. This is one of the troubling aspects of Redding's story that the administrative-law judge didn't seem inclined to address. The judge also acknowledged that Haynes had given Redding "the silent treatment" for months at a time, exacerbating what appears to have been a classic hostile work environment. Yet the judge somehow decided that this behavior had nothing to do with the accusations Redding had made about the gifts Haynes received.
"The courts say having a jerk for a boss isn't a crime," Bangert notes. "But since John was in a training position, having his boss not talk to him significantly interfered with his ability to do his job."
Wolfe insists Redding's job wasn't a training position — not after three years. "If you can't complete the task after multiple attempts, there's something wrong there," he says. "He was occupying a lot of other staff time to help solve his problem. They're not able to get their work done, and it's almost to the point where they're doing his work for him. That's not acceptable conduct for an engineer."
Redding has copies of reports and testimonials from people he worked with that attest to his competency — and contradict the image of the conniving, inept employee his final evaluation makes him out to be. But what matters in court is the paper trail. In this instance, it's the long chain of aggrieved e-mails zipping back and forth, and then — sadly or mercifully, depending on your point of view — hurtling downward into a pit of silence and resentment.
Redding is a house dad these days, spending time with his young son and daughter, trying to stay ahead of the mortgage payments. He enjoyed inspecting dams — driving to remote areas of the state and walking the crest and slopes of the dam, taking pictures and measurements — but not the ordeal that followed. At one point the stress of his job troubles triggered an excruciating outbreak of shingles on the right side of his face, and he carries what he calls a "Harry Potter-ish scar" on his forehead from the experience.
When he studies it in the mirror, he thinks about Lord Voldemort and his own antagonists. And he thinks about fliers and appeals and whether the downstream residents of Colorado give a damn.
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