Horner is accusing the City of Portsmouth and Mayor David Malone with creating an imminent risk of serious harm to employees, officers, the public, and Horner himself, over the dangers reportedly existing in the basement of City Hall, where the Police Department had been headquartered.
“I filed a formal complaint with them, and I received a letter (from OSHA) indicating that public buildings are not within their jurisdiction, and they directed me to the Ohio Bureau of Worker’s Compensation,” Horner said Monday. “And I have not filed that complaint yet. But I am in the process.”
The accusations were shared in a letter to Malone and obtained Monday by the Daily Times through an open records request.
“Let me begin by saying, it is with deepest regret I submit this letter,” Horner begins. “I am exercising my rights under the United States Occupational Safety and Health Act, which states in part: ‘Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” He also cited the Ohio Revised Code’s “Whistleblower” law.
Horner said he was asked by Malone on Aug. 11 to oversee the removal of the contents of the Police Department. Those items were to be moved to the Martings Building for storage.
Horner said he asked for a delay until the following Monday to develop a plan. He said he copied City Solicitor Mike Jones and County Prosecutor Mark Kuhn.
On Friday, Aug. 12, however, Horner said he received a call from the Police Department indicating a police officer was called to the Police Department to oversee the move.
Horner said he called Malone expressing his concerns about logistics, evidence integrity, property preservation, records preservation and integrity as well as health and safety issues.
Horner said soon after sending the email, he received a response from Malone that read, “You are hereby ordered to send an officer to the Portsmouth City Municipal Building to oversee the removal of Police Department equipment immediately. Any action that does not cooperate with this order will be regarded as insubordination.”
Because of what Horner said was the threat of intimidation and to avoid being charged with insubordination, he decided to personally oversee the move.
He said he was at the police department office in the city building from 10 a.m. until 4 p.m., dressed in personal protection gear, with the exception of a lunch break, and shortly after lunch began to experience eye, nasal and throat irritation.
Horner said he had repeatedly attempted to ensure that guidelines for the mold remediation were being followed, after concerns about the failure of Servpro to follow proper remediation guidelines and their conduct (resulting in significantly greater contamination of mold and asbestos disturbance), the recommendations of another remediation company, the recommendations of the engineer hired by the City of Portsmouth to analyze and make recommendations on the mold and asbestos contamination, and the failure of the City of Portsmouth to take adequate environmental precautions, and protection of employees, including considering allowing officers to sign waivers so they could work out of the contaminated Police Department, that he believes the conduct of the city constitutes a serious clear and present danger to employees of the building as well as the public entering the building.
“I am notifying you (Malone) that the conduct of the City of Portsmouth and your order, in my opinion, has created an imminent risk of serious physical harm to employees, officers, the public, and me,” Horner wrote. “I am forwarding a copy of this correspondence to Solicitor Jones, Scioto County Prosecutor Mark Kuhn, Ohio Attorney General, the Inspector General of the State of Ohio, and the United States Attorney’s Office. I have filed a complaint with the Occupational Safety and Health Administration. I will be investigating the procedure for the filing of a complaint with the Bureau of Worker’s Compensation. Additionally, I will be seeking legal advice.”
Malone said he is not going to respond to Horner’s actions.
“I hadn’t responded at all,” Malone said. “I’m just going to let him do what he’s going to do and I’m going to continue to move on the process of clearing the building until OSHA or anybody else tells us that we’re not doing the right process, and to stop. Until then we’re going to keep on moving.”
FRANK LEWIS may be reached at (740) 353-3101, ext. 232, or email@example.com.