Miller Seeks More Prosecutions in Industrial Deaths

When three San Diego construction workers died in trench collapses at beach area job sites in October, 1982, the business community got a rare shock.

Breaking from a tradition that made administrative fines and civil lawsuits the only punishment for industrial deaths, San Diego city prosecutors pressed criminal charges against the laborers’ bosses.

The highly publicized prosecutions of contractors Michael Turk and Paul Michael Henderson snapped the construction industry and other employers to attention. Suddenly, business people learned, there was the threat of jail time and a criminal record if their negligence resulted in a worker’s death.

New Policy

As dramatic as the lesson was, however, it seemed to be forgotten. In more than four years, there have been no similar prosecutions in San Diego County, although in each year 6 to 12 workers died in on-the-job accidents.

Now, the district attorney’s office is hoping to teach the lesson once more. Dist. Atty. Edwin Miller--fed up with what he considers bureaucratic mishandling of industrial incidents by law enforcement, prosecutors and the California Division of Occupational Safety and Health--is trying to forge a mechanism by which industrial deaths resulting from employers’ negligence will be prosecuted consistently as crimes.

“The fact that the district attorney investigates and prosecutes these kinds of cases and the fact that it is known to the contracting industry is a deterrent in and of itself,” Miller said Friday, explaining the rationale for the new policy.

Inadequate investigation and poor communications have denied workers the protection of that deterrence for years, Miller and his staff say.

For a 3 1/2-year period, Cal-OSHA--its tiny staff of criminal investigators overwhelmed with work--referred no industrial accidents to the district attorney’s office for prosecution, according to Deputy Dist. Atty. Josephine Kiernan, one of two prosecutors now assigned to work part time on such cases.

When fatalities were referred, they often had not been investigated in a manner that allowed prosecutors to build a criminal case, Kiernan said. Her office learned of other cases after the statute of limitations for filing charges had expired or just weeks before it was to run out.

“OSHA was not geared up,” Miller said. “Their problem was they did not have enough people, and our problem was that we did not find out about these incidents until it was almost too late. Most of the time, the only report we got was from some police officer who was immediately in the area and who didn’t really delve into all the facts.”

Kiernan recognized that there was a problem last summer. “It became clear there were deaths we weren’t hearing about,” she said.

The San Diego experience reflected a statewide phenomenon. Last year, Cal-OSHA referred 17% of industrial deaths to local district attorneys for possible prosecution, according to agency statistics. In previous years the percentage had dropped as low as 1.5%. The agency’s Bureau of Investigations--which has a staff of eight investigators statewide, none of them based in San Diego--conducted field inquiries into 80 of the 407 industrial fatalities in the state last year.

Cal-OSHA officials, however, defend the agency’s record, both in San Diego County and across California. Michael Mason, chief counsel for the agency and chief of the Investigations Bureau, said Friday that the statistics show Cal-OSHA is not reluctant to investigate deaths or seek prosecutions.

“We refer a case unless we can make a determination there is legally insufficient evidence, and we don’t necessarily draw that conclusion lightly,” he said, noting that the Henderson and Turk cases began with referrals from the agency.

Yet San Diego County prosecutors remained dissatisfied.

First Kiernan, and then Miller, took action. Kiernan asked the safety agency last year to bring all industrial deaths to her attention. A few months later, Miller assigned Kiernan, Deputy Dist. Atty. John Massucco Jr. and investigator Greg Peters to specialize in industrial deaths. He followed up in February with an appeal to the county’s police chiefs to begin treating every industrial death as a possible homicide and to investigate them accordingly.

Kiernan said last week that the police investigations will make it possible, for the first time, for prosecutors to evaluate in every case whether an industrial death was the result of criminal negligence.

“If you don’t get the evidence, or a really solid, thorough investigation isn’t done immediately--while the people who saw it, heard it and know about it are going to be forthcoming and the shock is still there--you can’t make that evaluation as well,” she explained.

Several cases already are under review, according to Kiernan. As in the cases of Turk and Henderson (whose conviction is under appeal), she said the charges most likely to be filed against employers will be misdemeanors under the state Labor Code alleging willful or negligent violation of a safety regulation.

Even as it begins, the new focus on worker deaths is endangered by the uncertain fate of Cal-OSHA. Gov. George Deukmejian has proposed eliminating the agency and turning over its duties to the federal Occupational Safety and Health Administration as a cost-saving measure for the state.

Democratic legislators, organized labor, the California Medical Assn., and some employer groups are fighting the governor’s proposal. Saturday, the Associated General Contractors of California joined the list.

But if Deukmejian wins the battle and the state agency expires July 1, local prosecuting agencies will be uncertain on whether they have the authority to file charges in worker deaths.

“If it does go, it’s going to spell disaster, I think, for prosecutors,” said Jan Chatten-Brown, special assistant to Los Angeles County Dist. Atty. Ira Reiner for occupational safety and health and environmental protection.

Since the Labor Code charges usually filed by prosecutors stem from violations of Cal-OSHA rules, the code sections will become meaningless if the safety agency is disbanded, Chatten-Brown said. Now-rare prosecutions on homicide charges such as involuntary manslaughter would become rarer, she said. Those prosecutions must be based on violations of recognized health and safety standards, of which there are far fewer under federal law than under California statutes and regulations, Chatten-Brown said.

Nonetheless, Miller--who opposes the elimination of Cal-OSHA--said local law enforcement agencies will somehow have to assume a larger role in policing worker safety if the federal agency replaces the state’s as the primary regulator of work sites.

“If anything, we need the resources in the OSHA area beefed up, rather than depleted or eliminated,” he said.

In Los Angeles County, Reiner reached a similar conclusion two years ago. Frustrated by the limitations of Cal-OSHA investigations and the agency’s nominal civil fines, he established a three-lawyer unit in his office--supported by eight investigators--to tighten the policing of worker safety in the state’s largest metropolitan area.

“Time after time, we saw fatalities where the Cal-OSHA penalties were less than $200, and it was business as usual as far as the corporate response to it,” Chatten-Brown said.

The Los Angeles unit, which was one of the inspirations for San Diego’s new program, dispatches a lawyer and investigator to every on-the-job death scene. Of 60 such “roll-outs” since September, 1985, there have been 12 prosecutions--7 of which resulted in convictions or pleas of guilty or no contest.

The unit hopes to expand its activities to investigate companies with poor safety records, even where there have been no deaths, and to investigate cases where workers have been injured by exposure to toxic substances, Chatten-Brown said.

Although the undertaking in San Diego County is less ambitious, both employer and worker groups express support for Miller’s new project.

“Employers and contractors from time to time try to take shortcuts,” said Art Lujan, business manager of the county Building Trades Council, the coordinating arm for the region’s construction industry labor unions. “If there’s a blatant and total disregard for human life and limb, it’s my personal feeling they should be prosecuted to the full extent of the law.”

Jeff Byroads, president of TCS Insurance Services in San Diego, recently included information about employers’ criminal liability for workplace accidents in a newsletter he sent his clients, many of which are contracting firms. Byroads--whose industry works closely with employers to improve on-the-job safety--said the threat of prosecution may be the strongest weapon available to combat employer negligence.

“I think the threat of going to jail probably has the most teeth in it, especially now that some people have been prosecuted and found guilty,” Byroads said. “It’s saying that, as an employer, you can’t hide behind the corporate veil or the corporate entity.”

In the construction industry especially, business people got a strong shock in 1983, when Turk--a friend of former Mayor Roger Hedgecock and San Diego Police Chief Bill Kolender--pleaded no contest to a misdemeanor following a trench cave-in that killed workers Steven A. Preston and James E. Aston at a Turk General Contractors job site in Pacific Beach. A supervisor on the job, Nicholas Dimeglio, also pleaded guilty to one misdemeanor count.

As a condition of their five-year probations, both men were required to give talks to industry groups on worker safety and on the consequences of being charged with a crime.

The speeches--and the prosecutions themselves--were an education for San Diego’s builders, according to Bill Burke, executive director of the local chapter of Associated General Contractors.

“It pinpointed the need for contractors to pay attention to safety,” Burke said. “It was an eye-opening ceremony.”

INDUSTRIAL DEATHS AND PROSECUTIONS IN CALIFORNIA

1986 1983 1980 1977 Industrial Deaths 407 436 541 565 Deaths resulting in field investigations by Cal/OSHA 80 53 46 103 Cases in which Cal/OSHA sought criminal charges by local prosecutors 68 43 8 27 Criminal cases filed by local prosecutors 16 24 8 22 Convictions and “successful compromises” obtained 10 16 6 14

Source: California Division of Occupational Safety and Health