11063066672?profile=RESIZE_710xThe reclaimed water was meant exclusively for lawn watering and when the system was shut down in 2020 due to health concerns, city employees like Curtis Duscan (center) and city contractors Clay Carroll (left) and Anthony Coates watered lawns on the barrier island by hand. File photo/The Coastal Star

Whistleblower, attorneys get $818,500; OSHA says city ‘harassed’ her

By Jane Smith and Jane Musgrave

Delray Beach has agreed to pay $818,500 to settle former city utilities worker Christine Ferrigan’s federal whistleblower lawsuit, which claimed she was fired for reporting that the city’s reclaimed water system was making people and pets sick.

Two days after city commissioners approved the settlement at their April 18 meeting, the U.S. Department of Labor’s Occupational Safety and Health Administration determined the city illegally harassed and terminated Ferrigan for reporting the pollution concerns, though it didn’t mention her by name.

“The City of Delray Beach’s actions toward this worker and its response to concerns about the municipal drinking water supply are deeply troubling,” Lily Colon, OSHA assistant regional administrator in Atlanta, said in a prepared statement. “Our investigation showed that the city harassed and ultimately fired an employee sworn to protect the public for doing their job. No worker should fear being punished by their employer for reporting legitimate safety and health concerns, and OSHA will work vigorously to defend courageous people like this inspector.”

Ferrigan received $400,000 for back pay and damages, according to one of her attorneys, Ezra Bronstein. The law firms she used received $418,500 to cover their expenses, including legal fees, he said. Each side had retained two law firms in the case.

The out-of-pocket cost of the settlement to the city is $268,500, with the remainder of the settlement and the city’s attorney fees and costs to be covered by city’s self-insurance policy, according to a confidential memo from City Attorney Lynn Gelin to commissioners in advance of their April 18 meeting. The Coastal Star obtained the memo April 28 after filing a public records request.

It’s just the latest cost to the city over its reclaimed water problems that started surfacing in 2018.

Delray Beach paid a $1 million fine to the state in December 2021 after a lengthy investigation by Florida Department of Health Palm Beach County officials confirmed that partially treated reclaimed water had been allowed to mix with drinking water supplies.

In addition, the city paid $21,000 for the state agency’s investigation and spent more than $1 million on inspections and adding missing backflow preventers to stop the reclaimed water from mixing with drinking water. The city remains under a five-year consent order with the state, requiring it to properly monitor the system.

This is the second settlement Ferrigan has received from a south Palm Beach County city after filing a whistleblower complaint. In 2014, she received $322,500 and her attorneys were paid $215,000 to settle a lawsuit she filed against Boca Raton.

She claimed she was improperly fired from Boca Raton’s utility department in 2008. The money was paid by the city’s insurer and city officials did not admit any wrongdoing.

Settlement avoids trial

The Delray Beach whistleblower settlement, first reached April 5 in U.S. District Court in West Palm Beach, came a day after attorneys for Ferrigan and the city spent a day on a Zoom call, hashing out their differences.

The city attorney’s staff, insurance adjuster and outside counsel recommended the settlement because of the risk associated with jury trials and the sizable amount of damages sought by Ferrigan, according to Gelin’s memo.

Had the parties failed to reach an accord, a federal jury would have decided whether the 65-year-old Ferrigan deserved what could have been millions in damages for being fired in January 2022 after reporting her concerns to state health officials.

City Manager Terrence Moore and Utilities Director Hassan Hadjimiry, who also were named in the lawsuit, signed off on the agreement. Neither they nor the city admitted any wrongdoing.

On April 5, the city manager praised Ferrigan in a prepared statement.

“The parties have reached a mutually acceptable resolution of the dispute regarding Ms. Ferrigan’s respective separation from the city,” said Moore. “The city thanks Ms. Ferrigan and recognizes her contributions to the City’s Utilities Department.” 

When asked why Ferrigan’s legal team did not force the city or the two leaders named in the lawsuit to admit wrongdoing, Bronstein said, “Ferrigan’s allegations were corroborated by [state health investigators] and the consent order damaged the city’s reputation. We got what we needed.”

What the depositions said

Each city commissioner should read the January deposition of Rafael Reyes, environmental health director at the Health Department, Bronstein told The Coastal Star. Delray Beach was grossly negligent and even cavalier in its early response to its reclaimed water woes, Reyes said in his deposition, while also praising Ferrigan.

“She provided sufficient data for developing the violations … of the July 1, 2020, warning letter and then the DOH corroborated through its own research and investigations,” he said.

Every time Health Department investigators requested records from Delray Beach, city officials “indicated that they did not have those records available,” Reyes said during his deposition.

Delray Beach tried to paint Ferrigan as a “rogue employee” during depositions of key city staffers. Ferrigan, however, said, “Everything I did for reclaimed water, I received prior approval from my managers,” including updating the opt-out form where residents could request not to be hooked into the reclaimed water system.

The city attorney called the Utilities Department “mismanaged” during her December deposition. The way the reclaimed water program was administered was “sloppy,” Gelin said.

“Nobody kept records of anything,” Gelin said of the reason the city could not sue Lanzo Construction, the contractor hired for the last phase of the reclaimed water program on the barrier island.

Either the city or Lanzo failed to install all the backflow preventers required to stop the treated wastewater from mixing with the drinking water, Gelin said in her deposition. “It became a he-said-she-said (thing) with the change orders,” she said of the situation between 2017 and 2019.

Reclaimed water problems

Ten years after the reclaimed water program was instituted, residents in 2018 began complaining that their drinking water was smelly, yellow with algae, and sandy, and that some residents and their pets were getting sick, according to Ferrigan. 

The Health Department got involved in January 2020 after a South Ocean Boulevard resident called to say she was not properly informed of a cross connection found on her street in December 2018. A cross connection occurs when reclaimed water pipes used for lawn irrigation are wrongly connected to the drinking water lines. Reclaimed water is highly treated wastewater that is suitable only for irrigation, not for human or pet consumption.

Health officials found that the city failed to implement its Cross Connection Control Program when the reclaimed water system was launched in 2008. It also found the city violated at least nine regulatory standards.

Ferrigan’s role 

Ferrigan, hired in 2017 as an industrial pre-treatment inspector, reported water quality problems to her supervisors, she said in her July 2022 lawsuit. When they failed to act after the January 2020 complaint was made, she reported her concerns to both the Health Department and the county Inspector General’s Office.

She had approached that office in February 2020, fearing she would be fired for cooperating with the Health Department investigators. Ferrigan received whistleblower protection in September 2020 from the Inspector General’s Office.

She did not need that letter, Bronstein said on April 24. “The reality of the Florida law says a government worker who raises concerns has a whistleblower shield against retaliation,” he said.

When Ferrigan was fired, city officials insisted she was dismissed as part of a reorganization designed to promote “efficiency and austerity.” 

But her position was the only non-vacant one eliminated in the Utilities Department in the past 10 years, Bronstein said, after requesting city records. He called the way the city treated Ferrigan “egregious.”

Ferrigan described her last months working for the city as “terrible. It was clear to me that they wanted me out.”

Ferrigan and Bronstein said they have received their checks. The voluntary dismissal, filed on April 26 by Ferrigan’s team, calls for each side to bear its own legal costs, except for the details agreed to in the settlement.

What’s next for Ferrigan?

“I will find another passion, and I will volunteer,” she said. 

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